Filing # 86434379 E-Filed 03/15/2019 09:21:54 AM

SUPREME COURT
OF FLORIDA

CASE NO: 2008 CF 697

SUPREME CT. NO: SC19-373

GARY MICHAEL HILTON,

APPELLANT,
RECEIVED, 03/15/2019 09:23:38 AM, Clerk, Supreme Court

v.
STATE OF FLORIDA,

APPELLEE.

RECORD ON
APPEAL
FROM THE CIRCUIT COURT
OF LEON COUNTY, FLORIDA
THE HONORABLE JAMES HANKINSON

ROBERT A. MORRIS, ESQ JENNIFER L. KEEGAN, ESQ

911 EAST PARK AVE OFFICE OF THE ATTORNEY GENERAL
TALLAHASSEE, FL 32301 LEGAL SECTION PL·01, THE CAPITAL
TALLAHASSEE, FL 32399

GEORGIA ANNE CAPPLEMAN, ESQ

EDDIE D. EVANS, ESQ
OFFICE OF THE STATE ATTORNEY
SECOND JUDICIAL CIRCUIT OF FLORIDA
301 S. MONROE ST
TALLAHASSEE, FL 32301

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

1
 IN THE CIRCUIT COURT OF
THE. SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY FLORIDA

CASE NO: 2008 CF 697

SUP CT NO: SC19-373

GARY MICHAEL HILTON,

PLAINTIFF/APPELLANT,

v.
STATE OF FLORIDA,

DEFENDANT/APPELLEE,

3.851

INDEX
DATE FILED INSTRUMENT PAGE NO.

AUG 8, 2013 MANDATE SUPREME COURT OF FLORIDA 8-34

AUG 8, 2013 ORDER FROM SUPREME COURT OF FLORIDA 35-

AUG 9, 2013 ORDER APPOINTING COUNSEL FOR DEFENDANT 36-

AUG 9, 2013 ORDER OF JUDICIAL ASSIGNMENT 37-

SEP 3, 2013 NOTICE OF APPEARANCE 38-

SEP 10, 2013 MOTION TO INCUR COSTS FOR PRIVATE INVESTIGATOR 39-40

SEP 10, 2013 ORDER AUTHORIZING THE DEFENSE TO INCUR COSTS FOR PRIVATE 41-42
INVESTIGATOR

SEP 16, 2013 JUSTICE ADMINISTRATIVE COMMISSION'S RESPONSE TO MOTION TO 43-45

INCUR COSTS FOR PRIVATE INVESTIGATOR

MAR 10,2014 MOTION FOR COMPETENCY EVALUATION 46-48

MAR 13,2014 ORDER APPOINTING EXPERT FOR COMPETENCY EVALUATION AND 49-51
NOTICE OF HEARING

MAR 14,2014 ORDER APPOINTING EXPERT FOR COMPTENCY EVALUATION AND 52-54
NOTICE OF HEARING

MAR 18,2014 AMENDED ORDER APPOINTING EXPERT FOR COMPETENCY 55-59

EVALUATION AND NOTICE OF HEARING

APR 30,2014 CONFIDENTIAL- PSYCHOLOGICAL EVALUATION REPORT 60-64

MAY2,2014 CONFIDENTIAL-EVALUATION OF COMPETENCY TO PROCEED 65-80

2
MAY21,2014 ORDER AUTHORIZING PAYMENT OF EXPERT WITNESS 81-

JUN 9, 2014 INTERIM MOTION TO INCUR COSTS FOR FEES, COSTS OR RELATED 82-85
EXPENSES

JUN 9, 2014 ORDER ON INTERIM MOTION TO INCUR FEES, COSTS OR RELATED 86-
EXPENSES

NOV 26,2014 MOTION FOR POST-CONVICTION RELIEF 87-208

JAN 26,2015 ANSWER TO MOTION FOR POST-CONVICTION RELIEF 209-245

FEB 3, 2015 ORDER GRANTING EVIDENTIARY HEARING 246-

MAR25, 2015 UNOPPOSED MOTION FOR CONTINUANCE 247-249

MAR26,2015 ORDER ON UNOPPOSED MOTION FOR CONTINUANCE 250-

MAR26,2015 TRANSCRIPT OF CASE MANAGEMENT (MAR 16, 2015) 251-258

APR23, 2015 DEFENDANT'S EXHIBIT LIST 259-261

APR23, 2015 DEFENDANT'S WITNESS LIST 262-264

JUN 30, 2015 MOTION FOR CASE MANAGEMENT CONFERENCE AND FOR OTHER 265-278
RELIEF

JUL I, 2015 ORDER DENYING STATE'S MOTION FOR AN ADDITIONAL CASE 279-280
MANAGEMENT

JUL 6, 2015 STATE'S WITNESS LIST 281-282

JUL 6, 2015 STATE'S EXHIBIT LIST 283-

JUL 14,2015 STATE'S AMENDED EXHIBIT LIST 284-

JUL24, 2015 MOTION FOR LEAVE TO AMEND INITIAL POSTCONVICTION MOTION 285-326
AND INCORPORATED MEMORANDUM OF LAW

JUL 28,2015 ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO AMEND 327-328
INITIAL POST CONVICTION MOTION

JUL 29, 2015 MOTION TO INCUR COSTS FOR EXPERT WITNESS FOR FORENSIC 329-336
PSYCHOLOGIST AND/OR MOTION TO DECLARE 27.71 I FLORIDA
STATUES INCONSTITUTIONAL AS CONFISCATORY

JUL 29,2015 MOTION TO INCUR COSTS FOR EXPERT WITNESS 337-343

FOR LEGAL AND/OR MOTION 'ID DECLARE 27.711,
FLORIDA STATUTES UNCONSTITUTIONAL AS
CONFISCATORY

JUL29, 2015 UNOPPOSED MOTION TO CONTINE EVIDENTIARY HEARING DUE TO 344-348

EXTRAORDINARY CIRCUMSTANCES

3
WL29, 2015 WSTICE ADMINISTRATIVE COMMISSION'S RESPONSE TO MOTION 349-351
FOR LEGAL EXPERT AND/OR MOTION TO DECLARE 27.711, FLORIDA
STATUTES AS CONFISCATORY AND MOTION TO INCUR COSTS FOR
EXPERT WITNESS FOR FORENSIC PSYCHOLOGIST AND/OR MOTION
TO DECLARE 27.711, FLORIDA STATUTES AS CONFISCATORY

ruL 30,2015 MOTION TO QUASH INVESTIGATIVE SUBPOENA(S) 352-360

AUG 5, 2015 STATE'S RESPONSE TO DEFENDANT'S MOTION TO QUASH 361-362

INVESTIGATIVE SUBPOENA(S)

AUG 7, 2015 ORDER DENYING DEFENDANT'S MOTION TO QUASH 363-364

INVESTIGATIVE SUBPOENA(S)

AUG II, 2015 NOTICE OF FILING 365-369

AUG 14,2015 ANSWER TO AMENDED MOTION FOR POST-CONVICTION RELIEF 370-422

AUG 24,2015 ORDER GRANTING UNOPPOSED MOTION FOR CONTINUANCE 423-424

AUG 24,2015 ORDER AUTHORIZING THE DEFENSE TO INCUR COSTS FOR 425-426
FORENSIC PSYCHOLOGIST

SEP 14, 2015 DEFENDANT'S 1ST AMENDED WITNESS LIST 427-430

OCT 22,2015 ORDER FOLLOWING CASE MANAGEMENT CONFERENCE 431-432

NOV 12,2015 MEMORANDUM REGARDING CLAIM VII(A) OF DEFENDANT'S 433438

AMENDED MOTION FOR POST-CONVICTION RELIEF

NOV 17, 2015 ORDER FOLLOWING CASE MANAGEMENT CONFERENCE 439-440

DEC 4, 2015 STATE'S MOTION TO COMPEL DEFENSE EXPERT REPORTS 441-442

DEC 7, 2015 ORDER COMPELLING DEFENSE EXPERT REPORTS 443-444

JAN 12,2016 MOTION TO CONTINUE HEARING, MOTION FOR REHEARING AND 445-456
MOTION FOR BRIEFING SCHEDULE

JAN 13,2016 ATTORNEY GENERAL'S OBJECTION TO THE DEFENDANT'S MOTION 457-460

TO CONTINUE EVIDENTIARY HEARING, MOTION FOR REHEARING
AND MOTION FOR BRIEFING SCHEDULE

JAN 20, 2016 ORDER ON MOTION TO CONTINUE EVIDENTJARY HEARING, MOTION 461-462
FOR REHEARING AND MOTION FOR BRIEFING SCHEDULE

DEC 21, 2016 NOTICE OF APPEARANCE FOR ATTORNEY GENERAL 463-464

APR4, 2017 CASE MANAGEMENT ORDER FOR EVIDENTIARY HEARING 465-466

APR5,2017 TRANSCRIPT OF CASE MANAGEMENT HEARING (MAR 23, 2017) 467-477

APR20, 2017 SECOND MOTION FOR LEAVE TO AMEND INITIAL POSTCONVJCTION 478-558
MOTION AND INCORPORATED MEMORANDUM OF LAW

4
APR27, 2017 ORDER GRANTING DEFENDANT'S SECOND MOTION FOR LEAVE TO 559-
AMEND INITIAL POSTCONVICTION MOTION

MAY 15,2017 STATE'S ANSWER TO SECOND AMENDED MOTION FOR POST- 560-591
CONVICTION RELIEF

JUN 14,2017 ORDER DISMISSISNG WITH LEAVE TO AMEND CLAIM 6 OF 592-

DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF

JUL 14,2017 UNOPPOSED MOTION FOR EXTENSION OF TIME FOR LEAVE TO AMEND 593-595
MOTION FOR POST-CONVICTION RELIEF

JUL 17, 2017 ORDER ON UNOPPOSED MOTION FOR EXTENSION OF TIME 596-

JUL 20,2017 MOTION TO INCUR COSTS RELEATED TO DR. THOMAS HYDE, M.D., 597-627
PH.D.

JUL 21,2017 AMENDED CLAIM 6 OF SECOND AMENDED MOTION FOR POST- 628-632
CONVICTION RELIEF

JUL 24, 2017 JUSTICE ADMINISTRATIVE COMMISSION'S RESPONSE TO MOTION TO 633-635

INCUR COSTS RELATED TO DR. THOMAS HYDE, M.D., PH.D. AND
REQUEST TO APPEAR TELEPHONICALLY

AUG 7, 2017 STATE'S ANSWER TO AMENDED CLAIM 6 636-641

AUG 14,2017 GARY HILTON'S AUGUST 14,2017 WITNESS LIST 642-647

AUG 14,2017 GARY HILTON'S AUGUST 14, 2017 EXHIBIT LIST 648-653

SEP 19, 2017 STATE'S MOTION TO COMPEL THE PUBLIC DEFENDER TO PRODUCE 654-
HIS FILES/RECORDS RELEVANT TO THE DEFENDANT'S CLAIMS OF
INEFFECTIVE COUNSEL

SEP 19,2017 ORDER COMPELLING STATE'S MOTION TO COMPEL THE PUBLIC 655-
DEFENDER TO PRODUCE HIS FULES/RECORDS RELEVANT TO THE
DEFENDANT'S CLAIMS OF INEFFECTIVE COUNSEL

SEP 25,2017 EXPEDITED UNOPPOSED MOTION TO CONTINUE EVIDENTIARY 656-659

HEARING

SEP 25,2017 ORDER GRANTING DEFENDANT'S EXPEDITED UNOPPOSED MOTION 660-

TO CONTINUE EVIDENTIARY HEARING

APR 18, 2018 UNOPPOSED MOTION TO CONTINUE EVIDENTIARY HEARING 661-663

APR 18, 2018 ORDER ON UNOPPOSED MOTION FOR CONTINUANCE 664-

SEP 27, 2018 STIPULATED MOTION TO PERPETUATE TESTIMONY 665-666

SEP 28, 2018 ORDER TO PERPETUATE TESTIMONY 667-

OCT25, 2018 NOTICE OF FILING 668-

5
OCT 25,2018 UNOPPOSED MOTION TO TAKE TESTIMONY BY CONTEMPORANEOUS 669-671
VIDEO COMMUNICATION

OCT 25,2018 ORDER ON UNOPPOSED MOTION TO TAKE TESTIMONY BY 672-

CONTEMPORANEOUS VIDEO COMMUNICATION

OCT 30, 2018 GARY HILTON'S OCTOBER 30,2018 WITNESS LIST 673-675

OCT 30,2018 GARY HILTON'S OCTOBER 30, 2018 EXHIBIT LIST 676-678

OCT 30, 2018 STATE'S EXHIBIT 1 - DVD- VIDEO DEPO OF PAULA SAUNDERS

OCT 30, 2018 DEFENSE EXHIBIT !A- li- CD

OCT 30,2018 DEFENSE EXHIBIT 2A- 2E- CD

OCT 30, 2018 DEFENSE EXHIBIT 3- MITIGATION POWER POINT 679-862

OCT 30, 2018 DEFENSE EXHIBIT 4- MITIGATION MATRIX 863-909

OCT 30, 2018 ORDER FINDING DEFENDANT COMPETENT 910-

OCT 31,2018 STATE'S EXHIBIT 2- MITIGATION OF WITNESSES 911-912

OCT 31,2018 DEFENSE EXHIBIT 5 - EMAILS TO MS. BOHANAN 913-1007

NOV 6, 2018 MOTION FOR ORDER DIRECTING COURT REPORTER(S) TO TRANSCRIBE 1008-1009

NOV 19,2018 ORDER DIRECTING COURT REPORTER(S) TO TRANSCRIBE 1010-

NOV 29,2018 TRANSCRIPT OF EVIDENTIARY HEARING VOL I (OCT 30, 2018) 1011-1276

NOV 29,2018 TRANSCRIPT OF EVIDENTIARY HEARING VOL 2 (OCT 31, 2018) 1277-1461

NOV 29,2018 TRANSCRIPT OF 3.851 HEARING VOL 3 (NOV 1, 2018) 1462-1580

NOV 30,2018 SCHEDULING ORDER 1581-

JAN 14,2019 STATE'S POSTCONVICTION HEARING CLOSING ARGUMENT 1582-1637

JAN 14,2019 GARY MICHAEL HILTON'S WRITTEN CLOSING ARGUMENT 1638-1693

JAN 28, 2019 ORDER REQUESTING SUPPLEMENTAL PLEADINGS 1694-

FEB 1, 2019 STATE'S RESPONSE TO COURT'S JANUARY 28,2019 ORDER 1695-1706

FEB 4, 2019 UNOPPOSED MOTION FOR ENLARGEMENT OF TIME 1707-1708

FEB 5, 2019 ORDER GRANTING UNOPPOSED MOTION FOR ENLARGEMENT OF TIME 1709-

FEB 6, 2019 GARY MICHAEL HILTON'S RESPONSE TO THE COURT'S JANUARY 28, 1710-1723
2019 AND ORDER AND PROPOSED FINDINGS OF FACTS AND
CONCLUSIONS OF LAW

6
FEB 12, 2019 ORDER DENYING DEFENDANT'S MOTION FOR POSTCONVICTION 1724-1736
RELIEF

MAR 7, 2019 NOTICE OF APPEAL !737-!738

MAR 7, 20!9 STATEMENT OF JUDICIAL ACTS TO BE REVIEWED 1739-!740

MAR 7, 2019 MOTION FOR ORDER DIRECTING COURT REPORTER(S) TO 1741-1742

TRANSCRIBE

MAR 8, 2019 ORDER DIRECTING COURT REPORTER(S) TO TRANSCRIBE 1743-

MAR 15,2019 CERTIFICATE OF CLERK 1744-

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 MANDATE

SUPREME COURT OF FLORIDA

To the Honorable, the Judges of the:

District Court of Appeal, Second District

WHEREAS, in that certain cause filed in this Court styled:

GARY MICHAEL HILTON vs. STATE OF FLORIDA

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The attached opinion was rendered on: 03/21/2013

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion,
the rule of this Court and the laws of the State ofFlorida.

WITNESS, The Honorable Ricky L. Polston, Chief Justice of the Supreme Court of
Florida and the Seal ofsaid Court at Tallahassee, the Capital, on this 31st day of
July, 2013.

~R~
erk oftlit!SUjjYeme Court of Florida

Rlooorded in t~ Official Records

of Leon County 8
 ~upreme ~ourt of jflortba

No. SC 11-898

GARY MICHAEL HILTON,

Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[March 21, 2013]

PERCURlAM.

Cheryl Dunlap disappeared from the Leon Sinks Geological Area in Leon

County, Florida, on December 1, 2007. Her body was discovered in the

Apalachicola National Forest on December 15, 2007. Gary Hilton, who had been

seen in the area during that time, and who was convicted in Georgia for a similar

crime, was charged with her kidnapping and murder. After trial, the jury convicted

Hilton. After hearing penalty phase evidence, the jury unanimously recommended

the death penalty. The court followed the jury's recommendation and sentenced

Hilton to death, finding six aggravating factors, one statutory mitigating factor, and

eight nonstatutory mitigating factors. This case is before the Court on appeal from

9
a judgment of conviction of first-degree murder and a sentence of death. We have

jurisdiction. See art. V, § 3(b )( 1), Fla. Const. For the following reasons, we affirm

Hilton's convictions and sentence.

FACTS

On February 28, 2008, a Leon County grand jury indicted Gary Michael

Hilton for the first-degree murder of Cheryl Dunlap between December 1 and

December 15, 2007, kidnapping, grand theft of a motor vehicle, and grand theft of

currency. Hilton pleaded not guilty on March 14, 2008. Hilton proceeded to a jury

trial commencing on February 2, 2011.

Cheryl Dunlap, 46, was last seen alive on December 1, 2007. That morning,

Dunlap called a friend, Kiona Hill, and made arrangements to have dinner with her

that evening. That afternoon, Dunlap went to Leon Sinks to read, where she was

seen by Michael and Vikki Shirley at approximately 1:30 p.m. The Shirleys

described that Dunlap was wearing jeans and a sweater and carrying a hardback

book. Dunlap did not arrive for dinner that evening and was missed at church the

following morning by Tanya Land. Land went to Dunlap's residence and found

her dog, but noticed that her car was missing so she called the police. Steven

Ganey of the Wakulla County Sheriffs Office took the missing person report on

December 3, 2007.

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 Dunlap's car, a white Toyota Carnry, was found on December 3, 2007, on

the side of Crawfordville Highway parked near the woods. The car had deliberate

tire punctures in the sidewall that was later identified as a bayonet piercing. On

December 1, the car had received a disabled vehicle ticket from Florida Highway

Patrol Trooper Brian Speigner. Ganey testified that it appeared that someone had

driven into the woods with all four tires intact and punctured the tire after the car

had been parked. Dunlap's purse was recovered in her car, but no money was

found.

Dunlap's Ameris Bank account records revealed that Dunlap cashed a check

with a drive-through teller at 11:17 a.m. on December 1. The records further

revealed that three cash withdrawals were made at the A TM at Hancock Bank on

West Tennessee Street on December 2, 3, and 4, 2007, totaling $700. In addition,

two attempted withdrawals were declined because they exceeded the daily limit.

The video from the security camera at the bank showed that the person making the

transactions was wearing a blue and white patterned, long-sleeved shirt, glasses, a

hat, and a make-shift mask made from tape.

Dunlap's body was discovered on December 15 by Ronnie Rentz while he

was hunting in the Apalachicola National Forest. Dunlap's body was near a forest

road and had been covered with some brush and limbs. Additionally, her head and

hands had been removed. Dunlap's body was identified using a sample of thigh

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11
muscle. Dr. Anthony Clarke, an associate medical examiner, performed the

autopsy. Dr. Clarke opined that Dunlap's head and hands had been removed by an

instrument with a sharp blade and that the dismemberment occurred postmortem.

The cause of death was not able to be detennined, but Dr. Clarke opined that it was

likely to have been a violent homicide. Additionally, Dr. Clarke noted that there

was a significant pre-mortem bruise located on Dunlap's middle to lower back and

that the bruise was not consistent with a normal fall injury. Dr. Clarke estimated

that Dunlap's body could have been in the woods for seven to fifteen days. Dr.

Clarke testified that his best estimate was that Dunlap died between December 5

and December 8, 2007.

On January 9, 2008, investigators found what they believed to be the

remains of Dunlap's head and hands in a fire pit at Joe Thomas campsite--

approximately seven miles from where her body had been found. The bone

fragments were charred. Because of the burn damage, no DNA was recoverable

from the fragments. Dr. Anthony Falsetti, a forensic anthropologist, opined that

there were two hands represented, that the bones were from an adult, and that the

bones were from a person with small hands.

Several witnesses testified that they saw or encountered Gary Michael

Hilton during the time period surrounding Dunlap's disappearance. In late

November 2007, George Ferguson encountered Hilton on LL Wallace Road.

- 4-
12
Hilton asked Ferguson for a jump start because his van, a white Chevrolet Astro,

would not crank. Ferguson testified that it did not appear to him that Hilton

actually needed the assistance. Ethan Davis provided similar testimony, that

sometime in late November 2007, Hilton stopped him and asked for help starting

his vehicle. Davis declined. Shawn Matthews also encountered Hilton in late

November near his LL Wallace Road camp. Hilton appeared to be familiar with

the area and told Matthews about a nearby sinkhole. On December 1, 2007,

Celeste Hutchins saw Hilton on Crawfordville Highway, not far from Leon Sinks.

Hutchins testified that Hilton was rummaging through a white Camry on the side

of the road. On December 10, 2007, Loretta Mayfield spoke to Hilton at a

convenience store on Crawfordville Highway. Mayfield testified that Hilton was

wearing a blue and white patterned shirt. Hilton was also wearing something on

his left side that looked like a large knife holder. Mayfield testified that the shirt

she saw Hilton wearing looked like the one in the ATM security video. On

December 11, 2007, Stephen Prosser saw Hilton in the Apalachicola National

Forest. On December 12, 2007, Michael Travis saw Hilton in the forest near the

Bloxham cutoff and then saw him again on December 14. On December 18, 2007,

Teresa Johnson saw Hilton in Bristol, Florida, where Hilton told her that she

looked like Dunlap and that it was "too bad" about that girl getting murdered.

-5-
13
 )'

Sometime between December 18,2007, and January 1, 2008, Hilton made

his way to Georgia where he kidnapped and murdered Meredith Emerson. Hilton

took Emerson from Blood Mountain and held her for four days before murdering

her. He cooperated with law enforcement in exchange for a life sentence. Hilton

was arrested in Georgia after Stephen Shaw saw Hilton walk to the back of a

convenience store in the direction of the store's dumpsters and called law

enforcement. Law enforcement officers recovered items Hilton was seen

discarding in a dumpster at the convenience store. From the dumpster, law

enforcement recovered a U.S. Forestry citation for unauthorized camping, a knife

and sheath, Hi-Tee boots, some chain, a padlock, gloves, a jacket, a folding police

baton, and a blue backpack. Hilton gave Georgia officials information on where to

find his bayonet on a hiking trail on Blood Mountain in North Georgia. Later, Jeff

Foggy, an FDLE tool mark expert, matched the bayonet to the puncture marks in

Dunlap's tire. Georgia law enforcement also gathered items from Hilton's van.

Items recovered from the van included clothing, jackets, gloves, camping

equipment, duffel bags, two sleeping bags, Hi-Tee boots, a camera, tobacco rolling

papers, Hilton's Georgia driver's license, tape, paper towels, maps, two BB pistols,

a book purchased at a Tallahassee book store, and dog food.

On February 12, 2008, Sergeant David Graham and Detective Dawn Dennis

with the Leon County Sheriff's Office executed a search warrant on Hilton while

-6-
14
he was in custody in Georgia. Hilton's DNA was collected and the entire

execution of the warrant was recorded. Portions of the recording were played for

the jury.

On June 6, 2008, Sergeant Graham and two other officers drove Hilton from

Georgia to Florida. Although Hilton was not questioned, he spoke for nearly the

entire five-hour drive, which was recorded. The State also played portions of this

recording at trial. Hilton stated:

I'm not all bad. I mean, you got to understand, I mean, I'm sure you
can see. I mean, I'm a [expletive] genius, man. I'm not a-I'm not
all bad. I just, you know, lost my mind for a little bit. Lost a grip on
myself, man. What can I tell you? FBI and everybody else is trying
to scratch their head, hey, guys don't get started doing my shit at 61
years old. It just don't happen, you know. Like there's a retired FBI
(indecipherable) named Cliff Van, Clifford VanZandt, that keeps
getting himself in the news, talking about me. And he said, this guy
didn't just fall off the turnip truck, he said. You know, in other words,
he's been doing this. But like I told you before, you know, when I
saw you before, I said, remember, I said I'd give you one for free.
Nothing before September, okay? I mean, I'm not joking, okay? I
just, I got old and sick and couldn't make a living and just lost, flat
lost my [expletive] mind for a while, man. I couldn't get a grip on it.

Additionally, Hilton made statements to a fellow inmate at the Leon County

Jail that were overheard by Correctional Officer Caleb Wynn. Specifically, Hilton

told inmate Summers that he could answer all the State Attorney's questions if he

would give him a life sentence, that he would reveal where the head was located,

that his bayonet was used on Dunlap's tire, that he would explain how he "pulled it

-7-
15
off" on a busy highway, that he spent a few hours or a few days with Dunlap, and

that he felt no regret other than getting caught.

The penalty phase began on February 17, 2011, during which the state called

Clay Bridges of the Georgia Bureau of Investigation. Agent Bridges testified

about Hilton's prior felony con,viction-the murder of Emerson in Georgia to

which Hilton pleaded guilty. The State played Hilton's taped conversation with

law enforcement where he described kidnapping Emerson, holding her captive, and

stripping her body naked to remove DNA and fiber evidence. He also stated that

"you either kill them or you get caught."

Hilton presented four expert witnesses who testified regarding his

psychological condition: Dr. Joseph Wu, a psychiatrist and clinical director of the

Brain Imaging Center at the University of California, Irvine; Dr. Charles Golden, a

clinical neuropsychologist performing neuropsychological testing and

examinations; Dr. Abbey Strauss, a psychiatrist with special expertise in

psychopharmacology; and Dr. William Morton, a board certifted psychiatric

pharmacist and professor; and nine lay witnesses. The State then called Dr. Greg

Prichard in rebuttal.

On February 21, 2011, the jury recommended unanimously that Gary Hilton

be sentenced to death for the murder of Cheryl Dunlap.

-8-
16
 The trial court held the Spencer 1 hearing on April 7, 2011. The State

presented three victim impact witnesses: (1) Ms. Emma Blount, the victim's aunt;

(2) Laura Walker, the victim's best friend; and (3) Gloria Tucker, the victim's

cousin. Hilton presented no witnesses.

The trial court found that the State had proven six aggravators beyond a

reasonable doubt. Assigning weight to each aggravator, the trial court found: (1)

the defendant was previously convicted of a violent felony (great weight); (2) the

murder was committed in the course of a kidnapping (great weight); (3) the murder

was committed to avoid arrest (moderate weight); (4) the murder was committed

for pecuniary gain (some weight); (5) the murder was especially heinous, atrocious

or cruel (HAC) (great weight); and (6) the murder was cold, calculated, and

premeditated (CCP) (great weight).

The court also considered and weighed each mitigating circumstance

proposed by Hilton and found one statutory mental mitigating factor-at the time

of the murder Hilton was under extreme emotional distress (some weight). Under

the catch-all provision, the trial court considered ten mitigating factors, finding that

Hilton established eight of them and rejecting two. The court found: (1) Hilton

grew up in an abusive household (some weight); (2) Hilton abused drugs,

specifically Ritalin (some weight); (3) Hilton was deprived of a relationship with

1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

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17
his biological father (moderate weight); (4) Hilton is already serving a life sentence

so society is protected (some weight); (5) Hilton served his country in the US

military (very little weight); (6) Hilton suffered maternal deprivation and lack of

bonding between mother and child (some weight); (7) Hilton was removed from

his home and put into foster care when he was a child (some weight); (8) Hilton

grew up in a financially poor family (not proven); (9) Hilton suffered a traumatic

brain injury as a child (some weight); and (1 0) Hilton suffers from severe mental

defects (not proven).

On April 21, 2011, the trial court followed the jury's unanimous

recommendation and sentenced Hilton to death. The court found beyond a

reasonable doubt that the aggravators outweighed the mitigators.

Collateral Crime Evidence

Hilton argues that his statements to law enforcement during his transport

from Georgia to Florida should not have been introduced at trial because they

constitute inadmissible Williams 2 rule evidence because the statements were only

relevant to show his propensity to commit crime. The State argues that the trial ,

judge did not commit error in admitting the statements because Hilton did not state

that he had committed other murders or crimes before he kidnapped Cheryl

Dunlap. The State argues further that even if the statements constitute collateral

2. Williams v. State, 110 So. 2d 654 (Fla. 1959).

- 10- 18
crime evidence, they were still admissible to prove premeditation. Because the

statements did not constitute similar fact or collateral crime evidence and were

otherwise relevant and admissible to establish premeditation, we find that the

statements were properly admitted.

Collateral crime evidence "is inadmissible when the evidence is relevant

solely to prove bad character or propensity." § 90.404(2)(a), Fla. Stat. (2008). We

explained in McGirth v. State, 48 So. 3d 777, 786-87 (Fla. 2010), cert. denied, 131

S. Ct. 2100 (2011), that:

[a]n appellate court will not disturb a trial court's determination that
evidence is relevant and admissible absent an abuse of discretion.
Relevant evidence is generally admissible unless precluded by a
specific rule of exclusion. There are two categories under which
evidence of uncharged crimes or bad acts will be admissible-similar
fact evidence, otherwise known as Williams rule evidence, and
dissimilar fact evidence. The requirements and limitations of section
90.404 govern similar fact evidence while the general rule of
relevancy set forth in section 90.402 governs dissimilar fact evidence.

Id.; see also McCray v. State, 71 So. 3d 848 (Fla. 2011) (internal citations omitted)

cert. denied, 132 S. Ct. 1743 (2012).

During his transport from Georgia to Florida, Hilton talked practically

nonstop for the entire nearly five-hour drive. During this time, Hilton made

several statements that were played in front of the jury. At issue here, Hilton

stated, "like I told you before, you know, when I saw you before, I said, remember,

I said I'd give you one for free. Nothing before September, okay? I mean, I'm not

- 11 -
19
joking, okay?" Hilton also stated repeatedly that he had "lost his mind" for a

while. Hilton claims that these statements were evidence of collateral crimes.

Hilton's argument is without merit. The statements played for the jury did not

implicate Hilton in a collateral crime, nor did they constitute similar fact evidence.

Further, even if the statements constituted Williams rule evidence, they were

admissible to demonstrate premeditation and were not introduced solely to

demonstrate Hilton's bad character or propensity. Furthermore, Hilton's statement

to law enforcement was ambiguous and did not directly implicate him in a

collateral crime. Hilton's statement that he began "hunting" in September did not

correlate with any known crime at the time of his trial. Nothing in Hilton's

statement implies that Dunlap was not his first victim or implicates Hilton in a

collateral crime. We do not find these statements constitute Williams rule

evidence. Because Hilton's statement was relevant to prove premeditation, we find

that the trial court did not abuse its discretion in admitting the evidence. See

§ 90.404(2), Fla. Stat. (2008); see, e.g., Durousseau v. State, 55 So. 3d 543 (Fla.

2010), cert. denied, 132 S. Ct. 149 (2011).

Dr. Prichard's Testimony

Hilton argues that the trial court erred in permitting Dr. Gregory Prichard to

testifY about allegations of Hilton's past criminal conduct during the penalty phase

and that such testimony constituted improper nonstatutory aggravating

- 12-
20
circumstances. The State argues that Dr. Prichard was called as a proper rebuttal

witness to dispute Hilton's claim that he had done nothing wrong prior to this

crime and that the change in his character was created by Ritalin. Because Hilton's

expert testimony opened the door for Dr. Prichard's testimony, we find that the

trial court properly admitted the testimony.

In considering the admission of evidence during the penalty phase of a trial,

in Hildwin v. State, 531 So. 2d 124, 127 (Fla. 1988), we noted:

it must be remembered that there is a different standard for judging

the admissibility and relevance of evidence in the penalty phase of a
capital case, where the focus is substantially directed toward the
defendant's character. See § 921.141 ( 1), Fla. Stat. (1987). In Elledge
v. State, 346 So. 2d 998, 1001 (Fla. 1977), we pointed out that "the
purpose of considering aggravating and mitigating circumstances is to
engage in a character analysis of the defendant to ascertain whether
the ultimate penalty is called for in his or her particular case."
Thus, "evidence that would not be admissible during the guilt
phase could properly be considered in the penalty phase."

Perry v. State, 801 So. 2d 78, 89-90 (Fla. 2001 ).

In~, we found that the State's "anticipatory rebuttal" was improper and

that nothing in the record supported the State's assertion that the defendant

"opened the door" to be questioned about specific acts of past violence. Id. at 90

(citing Hildwin, 531 So. 2d at 128). Here, however, Hilton's penalty phase

defense relied heavily on the assertion that Hilton was a law-abiding citizen prior

to his exposure to Ritalin. Dr. Prichard's testimony was provided in rebuttal to that

assertion. We therefore find that the testimony in this case when "[v]iewed in

- 13 -
21
context, ... was offered in rebuttal to the defense, not as a nonstatutory

aggravator." Zack v. State, 911 So. 2d 1190, 1208 (Fla. 2005). Accordingly, we

deny relief on this claim.

Witness §eqlllestration

Hilton argues that the trial court erred in permitting Dr. Prichard to stay in

the courtroom, despite the sequestration rule. Because we find that the trial court

did not err in excluding Dr. Prichard from the sequestration rule, we deny relief on

this claim.

We have previously provided that reason for the rule of witness

sequestration is to avoid coloring a witness's testimony by that heard from other

witnesses, but that the rule is not an absolute that must be invoked at the mere

request of counsel.· See Randolph v. State, 463 So. 2d 186, 191 (Fla. 1984) (citing

Spencer v. State, 133 So. 2d 729 (Fla. 1961)). Section 90.616(2)(c), Florida

Statutes (1997), allows an exception when a witness's presence is shown by the

party's attorney to be essential to the presentation of the party's cause, and the trial

court has wide discretion in making that determination. See Knight v. State, 746

So. 2d 423, 430 (Fla. 1998).

Here, Dr. Prichard was permitted to stay in the courtroom upon the State's

request. Because the State was late filing its notice of intent to seek the death

penalty, Dr. Prichard was prevented from examining Hilton. The State requested

- 14-
22
that he be excluded from the sequestration rule to give Dr. Prichard a chance to

provide meaningful assistance to the State. He testified in rebuttal to the defense

expert witnesses and did not serve as a fact witness. During cross-examination,

Dr. Prichard stated that he "sat through the entire penalty phase ... and handed

notes to Mr. Meggs." Accordingly, we find that Dr. Prichard's presence was

essential to the presentation of the State's cause and that the trial court did not

abuse its discretion permitting Dr. Prichard to remain in the courtroom.

Aggravators

Hilton argues that the evidence was insufficient to establish the HAC and

CCP aggravating circumstances and that the trial court erred in finding these

circumstances applied in Hilton's case. The State argues that the trial court

properly relied on the circumstances surrounding a collateral murder. Because we

find competent, substantial evidence in the record to support the trial court's

findings, we find no error.

"In reviewing an aggravating factor challenged on appeal, this Court's task

'is to review the record to determine whether the trial court applied the right rule of

law for each aggravating circumstance, and, if so, whether competent substantial

evidence supports its finding.' " Douglas v. State, 878 So. 2d 1246, 1260-61 (Fla.

2004) (quoting Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997)); see also Heyne

v. State, 88 So. 3d 113, 122 (Fla.), cert. denied, 133 S. Ct. 574 (2012). In deciding

- 15-
23
 '\
i

whether a lower court erred in its finding of an aggravator, we do not reweigh the

evidence to determine whether an aggravator was proven beyond a reasonable

doubt but instead "review the record to determine whether the trial court applied

the right rule of law for each aggravating circumstance and, if so, whether

competent substantial evidence supports its finding." Franklin v. State, 965 So. 2d

79, 98 (Fla. 2007) (quoting Williacy, 696 So. 2d at 695).

HAC

This Court has explained the meaning of the HAC aggravator as follows:

It is our interpretation that heinous means extremely wicked or

shockingly evil; that atrocious means outrageously wicked and vile;
and, that cruel means designed to inflict a high degree of pain with
utter indifference to, or even enjoyment of, the suffering of others.
What is intended to be included are those capital crimes where the
actual commission of the capital felony was accompanied by such
additional acts as to set the crime apart from the norm of capital
felonies-the conscienceless or pitiless crime which is unnecessarily
torturous to the victim.

State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973); see also Guzman v. State, 721 So. 2d

1155, 1159 (Fla. 1998) ("The HAC aggravator applies only in torturous murders-

those that evince extreme and outrageous depravity as exemplified either by the

desire to inflict a high degree of pain or utter indifference to or enjoyment of the

suffering of another."). This Court has also stated that"[ u]nlike the cold,

calculated and premeditated aggravator, which pertains specifically to the state of

mind, intent and motivation of the defendant, the HAC aggravator focuses on the

- 16 -
24
means and manner in which death is inflicted and the immediate circumstances

surrounding the death." Brown v. State, 721 So. 2d 274, 277 (Fla. 1998) (citing

Stano v. State, 460 So. 2d 890, 893 (Fla. 1984)). Furthermore, we have held that

"[i]n determining whether the HAC factor was present, the focus should be upon

the victim's perceptions of the circumstances as opposed to those of the

perpetrator." Lynch v. State, 841 So. 2d 362, 369 (Fla. 2003); see also Heyne, 88

So. 3d at 122; McGirth, 48 So. 3d at 794. The victim's mental state may be

evaluated in accordance with common-sense inferences from the circumstances.

Swafford v. State, 533 So. 2d 270, 277 (Fla. 1988). "[F]ear, emotional strain, and

terror of the victim during the events leading up to the murder may make an

otherwise quick death especially heinous, atrocious, or cruel." James v. State, 695

So. 2d 1229, 1235 (Fla. 1997); see also Swafford, 533 So. 2d at 277; Hall, 87 So.

3d 671-72. Additionally, we have held that the actions ofthe defendant preceding

the actual killing are also relevant. Gore v. State, 706 So. 2d 1328, 1335 (Fla.

1997).

Here, the record demonstrates competent, substantial evidence that Dunlap

was held anywhere from 2 days to a week prior to her murder, and that she was

injured enough during that time to leave traces of her blood on several of Hilton's

items. The trial court's inferences that the victim was likely terrified, suffering

from emotional strain, or suffering during the time leading up to her murder are

- 17-
25
supported by our review of the record. Accordingly, we find that there is

competent, substantial evidence contained in the record to support the trial court's

finding of HAC.

OCP

As it relates to the finding ofCCP, we have stated:

To establish the CCP aggravator, the State must prove beyond a

reasonable doubt that (1) the killing was the product of cool and calm
reflection and not an act prompted by emotional frenzy, panic, or a fit
of rage (cold); (2) the defendant had a careful plan or prearranged
design to commit murder before the fatal incident (calculated); (3) the
defendant exhibited heightened premeditation (premeditated); and (4)
the murder was committed with no pretext of legal or moral
justification.

McWatters, 36 So. 3d at 640-41. "The CCP aggravator pertains specifically to the

state of mind, intent, and motivation of the defendant." Wright v. State, 19 So. 3d

277, 298 (Fla. 2009) (citing Brown v. State, 721 So. 2d 274, 277 (Fla. 1998)). The

trial court's determination of whether CCP is present in a case is based upon the

totality of the circumstances. Hudson v. State, 992 So. 2d 96, 115 (Fla. 2008).

CCP can be proved by circumstantial evidence. Pearce v. State, 880 So. 2d 561,

576-77 (Fla. 2004). CCP can be indicated by the circumstances showing such facts

as advance procurement of a weapon, lack of resistance or provocation, and the

appearance of a killing carried out as a matter of course. Swafford, 533 So. 2d at

277. It is the State's burden to prove beyond a reasonable doubt that the murder

was the product of cool and calm reflection and not an act of emotional frenzy or

- 18-
26
panic, or a fit of rage. Walker v. State, 957 So. 2d 560, 581 (Fla. 2007). " '[T]he

facts supporting CCP must focus on the manner in which the crime was executed,

e.g., advance procurement of weapon, lack of provocation, killing carried out as a

matter of course.' " Id. (quoting Lynch, 841 So. 2d at 372). " 'Competent

substantial evidence is tantamount to legally sufficient evidence, and [this Court]

assess[es] the record evidence for its sufficiency only, not its weight.'" McCoy v.

State, 853 So. 2d 396, 407 (Fla. 2003) (quoting Almeida v. State, 748 So. 2d 922,

932 (Fla. 1999)).

This Court has also found the heightened premeditation required to support

CCP where a defendant has a lengthy period of reflection and the opportunity to

abandon the plan but, instead, commits the murder. Alston v. State, 723 So. 2d

148, 162 (Fla. 1998). We explained in Alston that where the defendant had ample

opportunity to release the victim but instead, after substantial reflection, "acted out

the plan [he] had conceived during the extended period in which [the] events

occurred," heightened premeditation was proven. Id. (quoting Jackson v. State,

704 So. 2d 500, 505 (Fla. 1997)) (citation omitted); see also Looney v. State, 803

So. 2d 656, 679 (Fla. 2001).

The trial court's finding of CCP in this case is supported by competent,

substantial evidence. Hilton's statements to law enforcement demonstrate that he

killed as a matter of course. He describes his own actions as "hunting." Although

- 19-
27
the manner of killing was not able to be established, the method of disposal of the

victim's body was calculated and carried out after a period of needed reflection.

Hilton's statements on the self-made video and to a fellow inmate describe being

with the victim for a long enough time for careful reflection. Accordingly, we find

that the trial court did not err in finding this aggravating factor.

Mitigatioltl.

Hilton argues that that trial court improperly rejected the lack of capacity

mitigating factor and failed to provide reasons why there is substantial, competent

evidence in the record to support the rejection of the mitigating circumstance. The

State argues that the trial court properly weighed the experts' testimonies and

found the State's expert's opinion more credible.

In rejecting this mitigating factor, the trial court stated, "[t]he Court finds

that Dr. Prichard's testimony was more credible and more consistent with the other

evidence ih the case as to this point. The Court finds that this factor in mitigation

was not proven." A trial court may reject a defendant's claim that a mitigating

circumstance has been proven as long as the record contains competent substantial

evidence to support the trial court's rejection of the mitigation. See Spencer, 645

So. 2d at 385. Even expert testimony may be rejected if it cannot be reconciled

with the other evidence in the case. See Coday v. State, 946 So. 2d 988, 1005 (Fla.

2006).

- 20-
28
Here, the testimony was not uncontroverted and, "[i]t is apparent from the ... trial

judge's sentencing order that he considered the expert testimony presented in

support of these factors but found this testimony unpersuasive." Roberts v. State,

519 So. 2d 885, 894 (Fla. 1987). Accordingly, we deny relief on this claim.

Ring Claim

Hilton argues that this Court should re-examine its holdings in Bottoson v.

Moore, 833 So. 2d 693 (Fla.), cert. denied, 123 S. Ct. 662 (2002), and King v.

Moore, 831 So. 2d 143 (Fla.), cert. denied, 123 S. Ct. 657 (2002). Because Hilton

was convicted of murder that occurred in connection with a kidnapping and

because Hilton had previously been convicted of a prior violent felony, we find his

request without merit. We have repeatedly rejected this argument when either

aggravating factor is present. See McMillian v. State, 94 So. 3d 572 (Fla. 2012),

cert. denied, 2013 U.S. Lexis 1305 (Feb. 19, 2013); Heyne v. State, 88 So. 3d 113,

120 n.2 (Fla. 2012); Kopsho v. State, 84 So. 3d 204, 220 (Fla.), cert. denied, 133 S.

Ct. 190 (20 12); Hodges v. State, 55 So. 3d 515, 540 (Fla. 201 0), cert. denied, 132

S. Ct. 164 (2011).

Sufficiency

Hilton does not challenge the sufficiency of the evidence to support his

convictions. However, this Court independently assesses the sufficiency of the

evidence to determine whether it is legally sufficient. See Crain v. State, 894 So.

- 21 -
29
2d 59, 72 (Fla. 2004) (" ... in capital cases, this Court independently assesses the

sufficiency of the evidence to determine if it is legally sufficient."). Based on our

review of the record, we find that there is competent substantial evidence to sustain

the convictions in this case.

Viewing the evidence in the light most favorable to the State, there is

competent, substantial evidence to support Hilton's convictions. See Bradley v.

State, 787 So. 2d 732, 738 (Fla. 2001) ("In determining the sufficiency of the

evidence, the question is whether, after viewing the evidence in the light most

favorable to the State, a rational trier of fact could have found the existence of the

elements of the crime beyond a reasonable doubt."). Specifically, the evidence

presented at trial demonstrated that Cheryl Dunlap disappeared on December 1,

2007, and that on December 15, her decomposing body was found beheaded and

with her hands removed. Dunlap had been last seen on December 1, 2007, at Leon

Sinks National Park. Her car was located abandoned on Crawfordville Highway

on December 3 with a tire that had been punctured by an item later identified as

Hilton's bayonet. On December 1, witnesses saw a man rummaging through

Dunlap's car and later identified that man as Gary Hilton. Witnesses spoke with

Hilton in surrounding areas during the time Dunlap was reported missing.

Witnesses identified the clothing Hilton was wearing during that time period. On

December 2, 3, and 4, a man matching Hilton's build and wearing clothing similar

- 22-
30
to that described by witnesses used Dunlap's ATM card and PIN at Hancock Bank

on Tennessee Street to remove a total of $700 from her bank account. In a self-

made video retrieved from a camera found in Hilton's possession, Hilton is shown

on December 3, 2007, talking to himself or his dog, describing hiding unknown

items and killing "those b*tches." Charred human bones, including a skull and

hand bones, were found in a fire pit near a campsite where Hilton was seen by

Shawn Matthews. In addition, this campsite also contained cigarette butts that

contained Hilton's DNA. Dunlap's DNA was found on articles recovered from

Hilton's van, including two sleeping bags, Hilton's duffel bag, some pants and on

the Hi-Tee boots Hilton was seen discarding. Hilton was overheard by law

enforcement telling a fellow inmate that he would tell them where the head was if

they would give him a life sentence. On the drive from Georgia to Florida, Hilton

told law enforcement that he had lost his mind, but hadn't done anything before

September. Based on this, we find the evidence sufficient to support the

convictions in this case.

Proportionality

Although not raised by Hilton, we have an independent duty to review the

proportionality of a death sentence. See McMillian, 94 So. 3d at 581 (citing Bolin

v. State, 869 So. 2d 1196, 1204 (Fla. 2004)); Hampton v. State, 103 So. 3d 98 (Fla.

2012), petition for cert. filed, No. 12-8923 (U.S. Feb. 20, 2013). A review ofthe

- 23-
31
evidence demonstrates that the proportionality of Hilton's sentence of death is

proportionate.

Here, the jury's recommendation was unanimous. The trial court weighed

the six aggravators proven by the State against the mitigation proven by Hilton and

concluded that "the aggravating circumstances outweigh the mitigating

circumstances in this case." The aggravating circumstances found are supported

by competent, substantial evidence and the record "fails to reveal any indication

that the trial court abused its discretion in assigning little weight to the mitigation

that was established." Hampton, 103 So. 3d at 121. We find that the imposition of

the death sentence in this case is proportionate when compared to other death

sentences that this Court has upheld. See, e.g., Hildwin v. State, 727 So. 2d 193

(Fla. 1998) (four aggravators: HAC, prior violent felony, pecuniary gain, and under

sentence of imprisonment; two statutory mitigators; and five nonstatutory

mitigators); Johnston v. State, 841 So. 2d 349 (Fla. 2002) (prior violent felony,

kidnapping, pecuniary gain, and HAC versus one statutory mitigator and twenty-

six nonstatutory mitigators); Suggs v. State, 923 So. 2d 419, 440 (Fla. 2005)

(sentence to death proportionate when the trial court found seven aggravating

factors and three mitigating factors, including one statutory mental mitigator and

this Court noted that the murder "particularly heinous and premeditated"); Owen v.

State, 862 So. 2d 687 (Fla. 2003) (finding death sentence proportionate for 23 year

-24-
32
old defendant, despite the presence of three statutory mitigators, including both

mental mitigators and sixteen other mitigators where there was evidence of

multiple stab wounds and the presence of multiple aggravators, including HAC,

CCP, and a conviction for another murder); Rose v. State, 787 So. 2d 786 (Fla.

2001) (finding death sentence proportionate despite the presence of eleven

nonstatutory mitigators where trial judge found four aggravators-murder

committed while on probation, prior violent felony, murder committed during a

kidnapping, and HAC).

Conclusion

For the foregoing reasons, we affinn Hilton's convictions and sentence of

death. It is so ordered.

POLSTON, C.J., and PARIENTE, QUINCE, CANADY, LABARGA, and

PERRY, JJ., concur.
LEWIS, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Leon County,

James C. Hankinson, Judge - Case No. 08-CF-697

Nancy Ann Daniels, Public Defender and William Carl McLain, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

for Appellant

- 25-
33
Pamela Jo Bondi, Attorney General and Meredith Charbula, Assistant Attorney
General, Tallahassee, Florida,

for Appellee

-26-
34
 ~upreme C!Court of jfloriba
WEDNESDAY, JULY 31,2013

CASE NO.: SC11-898

Lower Tribunal No(s).: 08-CF-697

GARY MICHAEL HILTON vs. STATE OF FLORIDA

Appellant(s) Appellee(s)

Pursuant to Florida Rule of Criminal Procedure 3.851(b), counsel shall be

appointed to handle postconviction proceedings for appellant.
As the Office of the Capital Collateral Regional Counsel-Northern Region
was abolished effective July 1, 2003, the Chief Judge of the Second Judicial
Circuit shall, within thirty days from the date of this order, appoint registry counsel
to handle postconviction proceedings for appellant. A copy of the appointment
order shall be served on the Florida Supreme Court.
In accordance with this Court's opinion issued in Amendments to Florida
Rules of Criminal Procedure 3.851, 3.852, and 3.991 and Florida Rule ofJudicial
Administration 2.215, 802 So. 2d 298 (Fla. 2001 ), the chief judge shall forthwith
assign this case to a judge qualified to handle capital cases. A copy of the
assignment order shall be served on the Florida Supreme Court.

A True Copy
Test:

~alf-tltdl
Clerk, Supreme Court
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HON. CHARLES A. FRANCIS, CHIEF JUDGE ---inzo
HON. WILLIAM N. MEGGS
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GARY MICHAEL HILTON OC)
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WILLIAM CARL MCLAIN .C)_,
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CAROLYN M. SNURKOWSKI
HON. JAMES C. HANKINSON, JUDGE
HON. BOB INZER, CLERK
35
 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

v. Case No. 2008 CF 697

GARY MICHAEL HILTON,

Defendant.

------------------~'
ORDER APPOINTING COUNSEL FOR DEFENDANT

Pursuant to the directive from the Supreme Court of Florida in Case No. SCll-898 issued

on Wednesday, July31, 2013, it is ORDERED that Robert Alex Morris, 1123 N. Bronough Street,

Tallahassee, Florida 32303-6007, an attorney on the registry for the Second Judicial Circuit who is

duly qualified to handle capital cases is hereby appointed to represent the Defendant, Gary M.

Hilton, in any postconviction proceedings in this case and any other matters related thereto.

DONE "d ORDERED ID Toll""'- 't!l:i!:i'~"' 2013.

CHARLES A. FRANCIS
Chief Judge

Copies furnished to:

Honorable Thomas D. Hall, Clerk, Supreme Court of Florida

Honorable James C. Hankinson, Circuit Judge

r-
Honorable William N. Meggs, State Attorney
Honorable Bob Inzer, Clerk of Courts, Leon County
Robert Alex Morris, Esq. m
ca CJ
U1
•.0

CD .
u

36
 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

v. Case No. 2008 CF 697

GARY MICHAEL IDL TON,

Defendant.
I

ORDER OF JUDICIAL ASSIGNMENT

Pursuant to the directive from the Supreme Court of Florida in Case No. SCII-898 issued

on Wednesday, July 31, 2013, it is ORDERED that the Honorable James C. Hankinson, a Circuit

Judge in and for the Second Judicial Circuit who is duly qualified to handle capital cases is hereby

assigned to the above-styled case to handle anypostconviction proceedings in said case and any other

matters related thereto.

DONE and ORDERED in Tallahassee, Leon County, Florida this 9th day of August, 2013.

CHARLES A. FRANCIS
Chief Judge

Copies furnished to:

Honorable Thomas D. Hall, Clerk, Supreme Co.urt of Florida

Honorable James C. Hankinson, Circuit Judge
Honorable William N. Meggs, State Attorney r-n ....
w
""r-
om ):»
Honorable Bob Inzer, Clerk of Courts, Leon County z:, c: 11
Robert Alex Morris, Esq. n:xw
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37
Sep. 3. 2013 !1:22AM T~r MORRIS LAW FIRM No. 0822 P. 2/2

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs.

GARY MICHAEL HILTON,

_ _ _ _ _ _ _ _ _ _ _!

NOTICE OF APPEARANCE
-..
COMES NOW, the undersigned attorney, and files this Notice Of Appearance

on behalf of GARY MICHAEL HILTON, the Defendant in the ahove-~tyl?.rl ''"''""·

All future correspondence shall be addressed to: ROBERT A. MORRIS, Esquire, The

Law Offices of Robert A. Morris, 1123 North Bronough Street, Tallahassee, Florida

32303.

THEREBY CERTIFY that a copy hereof has been furnished by HAND

DELIVERY, to: State Attorney's Office, 301 S. Monroe Street, 4tl' Floor Leon County

Courthouse, Leon County, Florida, 32301 on this 3'd day of September, 2013.

~A.6
ROBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
ll'-3 No1•th Rronough Stroot
Tallahassee, Florida 32303
(850) 792-1111 Facsimile (850) 792-1113
Attorney for Defendant
COURT APPOINTED

38
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF -697 A

vs. DIV.: FELONY

GARY MICHAEL HILTON,

Defendant.
--------------------~/

MOTION TO INCUR COSTS FOR PRIVATE INVESTIGATOR

COMES NOW the Defendant, by and through the undersigned counsel, and moves to

incur costs for a defense private investigator and in support thereof, shows the following:

1. The Defendant is indigent and the undersigned was appointed by the Court to
-&- r ~-)
represent the De,endant. "'-'-- ,,)
~b.;
.-·V
(f)
~- T"(
fJ :~·:·:: ·.-. ~--o
2. The defense requires the assistance of Jordan Research & Consultiiitito-assi&J,jn
. ! ' ) ·-·, ..:' '
:-< ~~;: I'• . -

preparing the defense of this matter including but not limited to intervie¥fli)g\ihd
§~;~:·;
locating witnesses, locating documents, performing background checks, i!ira:
researching factual issues.

3. The defense requests authorization for up to $2,500.00 at the rates established

by law for private investigator services in this matter.

WHEREFORE, the defense requests this Court enter an order authorizing the defense to

incur costs for a private investigator as set forth above at the rates established by law.

39
 , ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
1123 North Bronough Street
Tallahassee, Florida 32303
(850) 792-1111 Facsimile (850) 792-1113
alex@ramlawyer.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by

U.S. Mail: Office of the State Attorney, 4th Floor, 301 South Monroe St., Tallahassee, FL 32301

and Electronic Mail to: Justice Administrative Commission pleadings(al,justiceadmin.org on this

)J"; day of September, 20!3.

OOQ!b
ROBERT A. MORRIS, ESQUIRE

40
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT
13 SEP l 0 Pf1 2: 57
IN AND FOR LEON COUNTY, FL
G-OG
BOB lt-IZER
CLERI\ CIRCUIT COURT
LED?~ COUNTY. FLORIDA
STATE OF FLORIDA,
CASE NO.: 2008CF697 A

vs. DIV.: FELONY

GARY MICHAEL HILTON,

Defendant.

ORDER AUTHORIZING THE DEFENSE TO

INCUR COSTS FOR PRIVATE INVESTIGATOR

THIS CAUSE having coming before the Court upon the Motion to Incur Costs for

investigative services with Jordan Research& Consulting, Inc. in the above entitled cause; and

this Court having reviewed the Motion and the response of the Justice Administrative

Commission, the Court finds that the defense has shown that the assistance of a private

investigator is necessary for the defense of the case.

IT IS HEREBY ORDERED AND ADJUDGED as follows:

I. The defense is authorized to incur up to $2500.00 for the services of

Jordan Research& Consulting, Inc. at the rates established by law.

2. The private investigator providing services in this matter must be properly

licensed in accordance with Florida law.

3. The private investigator shall only be compensated for providing

investigative services including but not limited to Interviewing and

locating witnesses, locating documents, performing background checks,

41
 and researching factual issues. An investigator is not a substitute for a

paralegal or secretary and cannot be compensated for performing tasks of

a paralegal, secretarial or administrative nature.

4. Should Jordan Research& Consulting, Inc. desire direct payment from the

Justice Administrative Commission, he must enter into a contract with the

Justice Administrative Commission. The defense and private investigator

must comply with all policies and procedures of the Justice Administrative

Commission related to the submission of billings for direct payment to a

due process vendor.

5. The Defendant is liable to pay the amount of any due process costs

provided to the defense as directed by section 27.52 and section 938.29,

Florida Statutes. If the Defendant is convicted, the Court is responsible for

determining the amount of the obligation to be imposed as a lien against

the Defendant.

+4.
DONE AND ORDERED in Tallahassee, Leon County on this ( D day of September,

2013.

JAMES C. HANKINSON
CIRCUIT JUDGE
Copies:
ROBERT A. MORRIS, ESQ
Attorney for Defendant
GEORGIA CAPPLEMAN
Assistant State Attorney
JORDAN RESEARCH & CONSULTING, INC.

42
 IN Tl-IE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

v. DIY.: FELONY

GARY MICHAEL HILTON, JUDGE: FRANCIS

Defendant.

JUSTICE ADMINISTRATIVE COMMISSION'S RESPONSE TO

MOTION TO INCUR COSTS FOR PRIVATE INVESTIGf\XSR
a'
w
Cl')
zS8
nAo::
M
-p
COMES NOW, the Justice Administrative Commission ("JAC"), by a~iVk1gh the i::;~
---!(")::::;:: c
-<C:;:::;,,; =
undersigned attorney and files this response to the above-cited motion as follo~.,-~~ " 3:
rn,
i
og
::oc:
<:? CJ
1. Robert A. Morris (Counsel) is seeking authorization for $2,500 at a r~f $40 rfllil hour

for the defense investigator in this Capital Collateral case. Counsel has not exceeded the

$15,000 cap authorized in Section 27.711(5), Florida Statutes, for investigation expenses in this

case.

2. JAC notes that Counsel has indicated that he will soon meet the qualifications for

placement on the Capital Collateral Registry of attorneys eligible for appointment to capital

collateral postconviction cases, and has assured JAC that once he is placed on the registry he will

execute the JAC Agreement for Attorney Services for Private Capital Collateral Counsel (JAC

Agreement). No payments for fees or costs can be made until Counsel executes the JAC

Agreement.

3. JAC may only pay for investigation costs as provided by in Section 27.711(5), Florida

Statutes.

4. Pursuant to the uniform statewide rates, the rates for investigators cannot exceed $40 per

hour.

Page 1
43
5. As required by Florida law, any private investigator providing services in Florida must

have a Class C license from the Department of Agriculture and Consumer Services and be

employed by an investigation agency with a Class A license.

6. If any providers require direct payment, the JAC's procedures require the vendor to

execute the appropriate contract and follow JAC' s billing and audit procedures to obtain

payment.

7. Pursuant to the JAC Agreement, a11.y direct payment to a due process vendor is

contingent upon Counsel providing any and all necessary documentation in support of a billing

to JAC in an expeditious fashion. Counsel shall promptly review any billing for direct payment

to a due process vendor for accuracy and completeness and must certify that the work was

satisfactorily performed. In the event JAC issues a deficiency notice regarding any billing,

Counsel or the due process provider shall promptly resolve the deficiency so that JAC can

process the billing for payment. The order should reflect that Counsel must comply with all JAC

policies and procedures in the submission of billings to JAC for direct payment to a due process

vendor.

8. JAC does not request to participate in any hearing set on this motion. Should the Court

desire additional input, JAC may be reached toll-free at (866) 3 55-7902.

WHEREFORE, the JAC requests this Court, should it grant the Defendant's motion, also

include in its order the specific due process services authorized, as well as hourly or per unit

rates and maximum fees approved, and that the provider be paid in accordance with rates, terms

and conditions set forth by Florida Statutes, and the JAC Agreement, policies and procedures.

Page 2
44
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by
th
facsimile, email and/or U.S. Mail on this Jj_ day of September, 2013 to:
Honorable Charles A. Francis
301 S. Monroe St. Room 365-K
Tallahassee FL 3230 I

Robert A. Morris, Esq.

Sent via email

Respectfully submitted,

ANA CRISTINA MARTINEZ

GENERAL COUNSEL

Justic Administrative C m
P.O. Box 1654
Tallahassee, FL 32302
Tel.:850-488-2415
pleadings@justiceadmin.org
Florida Bar No.: 0714224

Page 3
45
Filing# 11124255 Electronically Filed 03/10/2014 10:18:47 AM

IN THE CIRCIDT COURT OF THE

SECOND JUDICIAL CIRCIDT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE NO. 2008-CF-697A

DIVISION: FELONY

GARY M. IDLTON,
DOB: 11/22/1946
Defendant.
------------~------~'

MOTION FOR COMPETENCY EVALUATION

COMES NOW, the Defendant, Gary M. Hilton, and moves this Honorable Court to

appoint no more than three (3) and no less than two (2) mental health experts to examine the

Defendant to determine his competency to proceed, pursuant to Rule 3.85l(g), Fla.R.Crm.Pr.,

and as grounds therefore would state as follows:

1. The undersigned attorney has doubts that the Defendant has the ability to understand

the nature of the proceedings against him, to assist in the preparation of his defense

and to testify relevantly on his own behalf.

2. The undersigned has had personal interactions (face to face) with the Defendant as

well as written communications. Those interactions and communications give rise to

a question of the Defendant's competency to proceed. More specifically, the

Defendant's thinking is not concrete. He appears detached from reality. Some of his

expressions are irrational in nature. His thinking is often grandiose if not delusional.

He has self-reported several different mental health issues and illnesses. He is

46
 currently being prescribed an uilknown regimine of medications for some of these

illnesses.

3. The Defendant has also disclosed certain generative medical conditions that impact

and impair brain functioning.

4. There will be factual matters in dispute that will require the Defendant's participation

and potential testimony. Among them will be his previous interactions with trial

counsel and the nature of those discussions as well as any input and advice he was

provided as well as any input or directives he provided.

WHEREFORE, the Defendant prays this Honorable Court will enter an Order to have

the Defendant evaluated by mental health experts.

I HEREBY CERTIFY that this.motion is made in good faith and on reasonable grounds

to believe that the Defendant is incompetent to proceed.

ERT A. MOR I , ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
1123 North Bronough Street
Tallahassee, Florida 32303
(850)792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
ATTORNEY FOR DEFENDANT
COURT APPOINTED

47
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman SA02 LeonFelony@leoncountytlgov State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, tallahassee, FL, and Capital Appeals

Bureau, Office of the Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on

this 10th day ofMarch,,2014.

48
 FILED IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY,
14 MAR 13 AM 10: 42 FLORIDA.
STATE OF FLORIDA
C-06 SPN: 197149
BOBINZE:R
VS.
CL~ER!{ & COMP1"ROLL£R
~oN COUNTY. FLORIDA Case Number(s) 2008CF697 A
GARY HILTON
Division: A
Defendant

ORDER APPOINTING EXPERT FOR COMPETENCY EVALUATION

AND
NOTICE OF HEARING

THIS CAUSE having come to be heard before this Court, and the competency of the
Defendant to proceed at any material stage of criminal proceeding, to wit:

_X_ pre-trial hearings

_X_ entry of a plea
_X_ the trial of the case
_X_ sentencing

- - violation of probation or community control proceedings

_ _ hearings on issues regarding a defendant's failure to comply with court orders or

conditions.
__ other matters where the mental competence of the defendant is necessary.

having been raised in accordance with the provisions of Rule 3.210(b), Fla. R.Crim. P., and, further,
the court having reasonable grounds to believe that the Defendant may be incompetent to proceed
and that an evaluation should be scheduled to examine this Defendant, it is
ORDERED AND ADJUDGED as follows:

1. The following individuals are hereby appointed as expert to examine the Defendant in
accordance with the requirements of law and this Order:
DR. WILLIAM OGLESBY PSYD
2. The expert appointed in Paragraph 1., above, shall examine the Defendant in accordance with
the provisions ofs. 916.12, Fla. Stat., and s. 916.13, Fla. Stat., Rules 3.211(a) and (b) and 3.212(3),
Fla. R.Crim. P., and report relative to the following issues:
(a) Whether the Defendant is competent to proceed for the purpose indicated above, pursuant to
the criteria set forth ins. 916.12, Fla. Stat., and Rule 3.211(a), Fla. R.Crim. P.; that is, whether the
defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational, as well as factual, understanding of the proceedings
against him. In considering the issue of the Defendant's competence to proceed, said experts shall
consider and include in their report the following factors and any others deemed relevant by the experts:

49
The defendant's capacity to:

[1] Appreciate the charges or allegations against him;

[2] Appreciate the range and nature of possible penalties, if applicable, which may be imposed
in the proceedings against him;

[3] Understand the adversary nature of the legal process;

[4] Disclose to his attorney facts pertinent to the proceedings at issue;

[5] Manifest appropriate courtroom behavior;

[6] Testify relevantly;

(b) If the expert should find the Defendant is incompetent to proceed, then the experts shall report
on any recommended treatment for the defendant to attain competence to proceed, including the
least restrictive setting in which to receive the treatment. In considering the issues relating to treatment,
the examining expert shall report on the following factors:
(1.) The mental illness causing the incompetence;

(2.) The likelihood that the defendant is manifestly incapable of surviving alone or with the help of
willing and responsible family or friends, including available alternative services, and, without treatment,
the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or
refusal poses a real and present threat of substantial harm to the defendant's well-being; and whether
there is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on
herself or himself or another person, as evidenced by recent behavior causing, attempting, or
threatening such harm.

(3.) The treatment or treatments appropriate for the mental illness of the defendant, and an
explanation of each of the possible treatment alternatives in order of choices;

(4.) The availability of acceptable treatment. If treatment is available in the community, the
expert shall so state in the report;

(5.) The likelihood of the defendant attaining competence under the treatment recommended,
an assessment of the probable duration of the treatment required to restore competence, and the
probability that the defendant will attain competence to proceed in the foreseeable future.

(6.) An assessment of the Defendant's risk for being released into the community.

3. Any written report submitted by the experts shall contain the following:

(a.) The report shall identify the specific matters referred for evaluation.

(b.) The report shall describe the evaluative procedures, techniques and tests used in the examination
and the purpose or purposes for each.

50
 (c.) The report shall state the expert's clinical observations, findings and opinions on each issue referred
for evaluation by the court, and indicate specifically those issues, if any, on which the expert could not
give an opinion.

(d.) The report shall identify the sources of information used by the expert and present the factual basis
for the experts' clinical findings and opinions.
4. The experts appointed above shall submit their written reports directly to this Court with copies to
the Attorney for the State, the Attorney for the Defendant, and the Court Mental Health Coordinator
.!!.!!..
or before the 1st day of April, 2014.
5. This cause is scheduled for a hearing on the issue of the Defendant's competency to proceed at
10:30 AM on the 18th day of March, 2014.

It is further ordered that Apalachee Center Inc., Prison Health Services, Tallahassee Memorial
Behavioral Health Care, Ability 1st, Agency For Persons with Disabilities, The Florida
Department of Children and Families, or any other treating agency shall provide the above
appointed expert/s with copies of the defendant's clinical, psychiatric, psychological, and/or medical
records within seven (7) days of receipt of this order.

DONE AND ORDERED at Tallahassee Leon County, Florida, this 11th day of March, 2014.

James Hankinson
t Judge

Copies furnished to:

Office of the State Attorney: Georgia Cappleman, fax#: (850)606-6001

Defense Attorney: Robert Morris

Appointed Experts: DR. WILLIAM OGLESBY PSYD

Kendra Brown: Court Mental Health Coor, Rm 203, Leon County Courthouse

Loretta Galeener: Court Administration, Room 203, Leon County Courthouse

51
 IN THE CIRCUIT COURT OF THE
FILED SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY,
FLORIDA.
14 MAR I 4 AM II: 24
STATE OF FLORIDA
SPN: 197149
C-OG
vs. BOBIHZER
CLERK 8, COMPTROLLER Case Number(s) 2008CF697A
GARY HILTON LEON COUIHY. FLORIDA
Division: A
Defendant

ORDER APPOINTING EXPERT FOR COMPETENCY EVALUATION

AND
NOTICE OF HEARING

THIS CAUSE having come to be heard before this Court, and the competency of the
Defendant to proceed at any material stage of criminal proceeding, to wit:

~- pre-trial hearings
_..__ entry of a plea
-~- the trial of the case
_it_ sentencing
- - violation of probation or community control proceedings

__ hearings on issues regarding a defendant's failure to comply with court orders or

conditions.
~ other matters where the mental competence of the defendant is necessary.

having been raised in accordance with the provisions of Rule 3.210(b), Fla. R.Crim. P., and, further,
the court having reasonable grounds to believe that the Defendant may be incompetent to proceed
and that an evaluation should be scheduled to examine this Defendant, it is
ORDERED AND ADJUDGED as follows:
1. The following individuals are hereby appointed as expert to examine the Defendant in
accordance with the requirements of law and this Order:
DR. WILLIAM OGLESBY PSYD and DR. BRADY LEE HUDSON PHD
2. The expert appointed in Paragraph 1., above, shall examine the Defendant in accordance with
the provisions of s. 916.12, Fla. Stat., and s. 916.13, Fla. Stat., Rules 3.211(a) and (b) and 3.212(3),
Fla. R.Crim. P., and report relative to the following issues:
(a) Whether the Defendant is competent to proceed for the purpose indicated above, pursuant to
the criteria set forth ins. 916.12, Fla. Stat., and Rule 3.211(a), Fla. R.Crim. P.; that is, whether the
defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational, as well as factual, understanding of the proceedings
against him. In considering the issue of the Defendant's competence to proceed, said experts shall
consider and include in their report the following factors and any others deemed relevant by the experts:

52
The defendant's capacity to:

[ 1] Appreciate the charges or allegations against him;

[2] Appreciate the range and nature of possible penalties, if applicable, which may be imposed
in the proceedings against him;

[3] Understand the adversary nature of the legal process;

[4] Disclose to his attorney facts pertinent to the proceedings at issue;

[5] Manifest appropriate courtroom behavior;

[6] Testify relevantly;

(b) If the expert should find the Defendant is incompetent to proceed, then the experts shall report
on any recommended treatment for the defendant to attain competence to proceed, including the
least restrictive setting in which to receive the treatment. In considering the issues relating to treatment,
the examining expert shall report on the following factors:
(1.) The mental illness causing the incompetence;

(2.) The likelihood that the defendant is manifestly incapable of surviving alone or with the help of
willing and responsible family or friends, including available alternative services, and, without treatment,
the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or
refusal poses a real and present threat of substantial harm to the defendant's well-being; and whether
there is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on
herself or himself or another person, as evidenced by recent behavior causing, attempting, or
threatening such harm.

(3.) The treatment or treatments appropriate for the mental illness of the defendant, and an
explanation of each of the possible treatment alternatives in order of choices;

(4.) The availability of acceptable treatment. If treatment is available in the community, the
expert shall so state in the report;

(5.) The likelihood of the defendant attaining competence under the treatment recommended,
an assessment of the probable duration of the treatment required to restore competence, and the
probability that the defendant will attain competence to proceed in the foreseeable future.

(6.) An assessment of the Defendant's risk for being released into the community.

3. Any written report submitted by the experts shall contain the following:

(a.) The report shall identify the specific matters referred for evaluation.

(b.) The report shall describe the evaluative procedures, techniques and tests used in the examination
and the purpose or purposes for each.

53
 (c.) The report shall state the expert's clinical observations, findings and opinions on each issue referred
for evaluation by the court, and indicate specifically those issues, if any, on which the expert could not
give an opinion.

(d.) The report shall identify the sources of information used by the expert and present the factual basis
· for the experts' clinical findings and opinions.
4. The experts appointed above shall submit their written reports directly to this Court with copies to
the Attorney for the State, the Attorney for the Defendant, and the Court Mental Health Coordinator
Q!!..
or before the 3rd day of April, 2014.
5. This cause is scheduled for a heariug on the issue of the Defeudaut's competency to proceed at
10:30 AM ou the 18th day of March, 2014.

It is further ordered that Apalachee Ceuter Iuc., Prisou Health Services, Tallahassee Memorial
Behavioral Health Care, Ability 1st, Ageucy For Persons with Disabilities, The Florida
Department of Children aud Families, or any other treating ageucy shall provide the above
appointed expert/s with copies of the defendant's clinical, psychiatric, psychological, and/or medical
records within seven (7) days of receipt of this order.

assee, Leon County, Florida, this 13th day of March, 2014.

James Hankinson
it Judge

Copies furnished to:

Office of the State Attorney: Georgia Cappleman, fax#: (850)606-6001

Defense Attorney: Robert Manis

Appointed Experts: DR. WILLIAM OGLESBY PSYD and DR. BRADY LEE HUDSON PHD

Kendra Brown: Court Mental Health Coor, Rm 203, Leon County Courthouse

Loretta Galeener: Court Administration, Room 203, Leon County Courthouse

54
 FILED
IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT,
14 MAR 18 PM 2: 58 IN AND FOR LEON COUNTY,
C-06
FLORIDA.
80BINZ£R
STATE OF FLORI1SW::R K& COMPJ'ROLLER SPN: 197149
. t:EtJ 11 COLIIHY. FLORIDA
VS. Case Nos.: 2008CF697A

GARY HILTON Division: A

Defendant
_______;
AMENDED ORDER APPOINTING EXPERT FOR COMPETENCY EVALUATION
AND
NOTICE OF HEARING

THIS CAUSE having come to be heard before this Court, and the

competency of the Defendant to proceed at any material stage of criminal

proceeding, to wit:

pre-trial hearings

entry of a plea

the trial of the case

sentencing

violation of probation or community control proceedings

hearings on issues regarding a defendant's failure to comply with

court orders or conditions.

_X_ other matters where the mental competence of the

defendant is necessary

having been raised in accordance with the provisions of Rule 3.85l(g), Fla.

R.Crim. P., and, further, the court having reasonable grounds to believe that

the Defendant may be incompetent to proceed and that an evaluation should be

scheduled to examine this Defendant, it is

55
 ORDERED AND ADJUDGED as follows:

I. The following individuals are hereby appointed as experts to

examine the Defendant in accordance with the requirements of law and this

Order: Dr. Brady Lee Hudson PhD. and Dr. Salvatore Blandino PhD.

2. The experts appointed in Paragraph 1 above, shall examine the

Defendant in accordance with the provisions of s. 916.12, Fla. Stat., Rules

3.2ll(a), (b) and 3.212(3), and 3.85l(g), Fla. R.Crim. P., and report relative to

the following issues:

(a) Whether the Defendant is competent to proceed for the purpose

indicated above, pursuant to the criteria set forth ins. 916.12, Fla. Stat., and

Rule 3.2ll(a), Fla. R.Crim. P.; that is, whether the defendant has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding and whether he has a rational, as well as factual, understanding

of the proceedings against him. In considering the issue of the Defendant's

competence to proceed, said experts shall consider and include in their report

the following factors and any others deemed relevant by the experts:

The defendant's capacity to:

[1] Appreciate the charges or allegations against him;

[2] Appreciate the range and nature of possible penalties, if

applicable, which may be imposed in the proceedings against
him;

[3] Understand the adversary nature of the legal process;

[4] Disclose to his attorney facts pertinent to the proceedings at

issue;

[5] Manifest appropriate courtroom behavior;

[6] Testify relevantly;

56
 (b) If the expert should find the Defendant is incompetent to proceed,

then the experts shall report on any recommended treatment for the defendant

to attain competence to proceed, including the least restrictive setting in which

to receive the treatment. In considering the issues relating to treatment, the

examining expert shall report on the following factors:

(1.) The mental illness and/or developmental disability causing the

incompetence;

(2.) The likelihood that the defendant is manifestly incapable of

surviving alone or with the help of willing and responsible family or friends,

including available alternative services, and, without treatment, the defendant

is likely to suffer from neglect or refuse to care for herself or himself and such

neglect or refusal poses a real and present threat of substantial harm to the

defendant's well-being; and whether there is a substantial likelihood that in the

near future the defendant will inflict serious bodily harm on herself or himself

or another person, as evidenced by recent behavior causing, attempting, or

threatening such harm.

(3.) The treatment or treatments appropriate for the mental illness of

the defendant, and an explanation of each of the possible treatment alternatives

in order of choices;

(4.) The availability of acceptable treatment. If treatment is available in

the community, the expert shall so state in the report;

(5.) The likelihood of the defendant attaining competence under the

treatment recommended, an assessment of the probable duration of the

57
treatment required to restore competence, and the probability that the

defendant will attain competence to proceed in the foreseeable future.

(6) An assessment of the Defendant's risk for being released into the

community.

3. Any written report submitted by the experts shall contain the

following:

(a.) The report shall identify the specific matters referred for evaluation.

(b.) The report shall describe the evaluative procedures, techniques and

tests used in the examination and the purpose or purposes for each.

(c.) The report shall state the expert's clinical observations, findings and

opinions on each issue referred for evaluation by the court, and indicate

specifically those issues, if any, on which the expert could not give an opinion.

(d.) The report shall identify the sources of information used by the

expert and present the factual basis for the experts' clinical findings and

opinions.

4. The experts appointed above shall submit their written reports

directly to this Court with copies to the Attorney for the State, the Attorney for

the Defendant, and~ Office of the Attorney General- Capital Appeals Bureau

on or before the)...'-" day of V\.;(_ 01.. '( , 20 J'i.

58
 5. This cause is scheduled for a hearing on the issue of the

Defendant's competency to proceed at _ _ _ _ _ o'clock _.m. on the _ __

day of _ _ _ _ _ _ _ _ , 20_ _ Pe.-s.e_-t-"

It is further ordered that Apalachee Center Inc., Corizon Health

Services, Tallahassee Memorial Behavioral Health Care, Agency For

Persons with Disabilities, The Florida Department of Children and

Families, The Florida department of Corrections, or any other treating

agency shall provide the above appointed expertjs with copies of the

defendant's clinical, psychiatric, psychological, and/ or medical records within

seven (7) days of receipt of this order.

DONE AND ORDERED at Tallahassee, Leon County, Florida, this ~ f{ +Lt.

day of VVl.a.rc.-lA ,2o_fl.

James Hankinson

Circuit Judge

Copies furnished to:

Office of the State Attorney: Georgia Cappelman, fax#: (850)606-6001

Defense Attorney: Robert Morris, fax#: (850)792-1113

Appointed Expertjs: Dr. Hudson and Dr. Blandino

Capital Appeals Bureau, Office of the Attorney General

Kendra Brown: Court Mental Health Coor, Rm 203, Leon County Courthouse

59
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80
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA CASE NO. 2008CF697 A

vs

GARY HILTON,

Defendant.

ORDER AUTHORIZING PAYMENT OF EXPERT WITNESS

THIS CAUSE having come before the court on its own motion to pay expert fees, it is hereby

ORDERED and ADJUDGED:

Dr. Brady Lee Hudson was appointed by the Court on March 18, 2014 to evaluate the above

defendant for competency. Accordingly, the State of Florida is hereby authorized to pay to the

above-named expert the sum of $1,650.00 for his services in this case. \A.
DONE AND ORDERED in Chambers at Tallahassee, Florida, this l ~* day of May,

2014.

Circuit Judge
·• ·':' ,; .:~

Copies to:

Georgia Cappelman, Assistant State Attorney

Robert Morris, Defense Attorney
Loretta Galeener, Office of Court Administration
,...·>~"· '

81
 Filing# 14569373 Electronically Filed 06/09/2014 12:02:47 PM f
I ;
I.

IN THE CIRCUIT cou· /;THE

SECOND JUDICIAL ciRCUIT
INAND FOR LEON COUNTY, FL

STATE OF FLORIDA, CASE NO.: 2008-CF-697A

vs. DIVISION: FELONY

GARY M. HILTON
Defendant.

------------------~'
INTERIM MOTION TO INCUR COSTS FOR FEES. COSTS
OR RELATED EXPENSES

COMES NOW the undersigned counsel, pursuant to §27.711 (4), Florida Statutes and

respectftill y requests the entry of an order authorizing interim payment of attorney's fees and

costs and as grounds therefore would state:

1. Section §27.711 (4), Florida Statutes authorizes appointed counsel to submit

interim bills at certain points of demarcation as the case proceeds.

2. The above-styled case has reached such a point to §27.711 (4) (a), Florida

Statutes authorizing compensation at a rate of$100.00 per hour up to a maximum

of $2500.00 for billable time between the appointment of counsel and the filing of

a notice of appearance.

3. The undersigned was appointed to represent the Defendant on August 9, 2013.

The undersigned filed his Notice of Appearance on September 10,2013. The

undersigned provided services during that period of time in the form of attorney's

fees.

82
t~P J
 \
.i

4. Exhibit A shows 19.9 hours of time billed at $100.00 per hour for a total of

$1990.00, in court cost of 1.0 hours of time billed at $100.00 per hour fortota1 of

$100.00 and costs incurred for delivery of 109 boxes of discovery files from

Public Defenders office, costs of ring binder and tabs for a total of $463.94.

5. The Justice Administrative Commission has reviewed Exhibit A and they have no

objection to this Court entering an order authorizing payment as is evidence by

Exhibit B (letter of no objection).

WHEREFORE, the undersigned would respectfully request this Court for entry an order

authorizing payment of$2,553.94 for fees, costs and related expenses.

RESPECTFULL

«fl
OBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
1123 North Bronough Street
Tallahassee, Florida 3 23 03
(850) 792-1111 Facsimile (850) 792-1113
ATTORNEY FOR DEFENDANT
COURT APPOINTED

83
 ./

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served BY

HAND DELIVERY to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, and by ELECTRONIC

MAIL to: Deputy Chief State Attorney Georgia Cappleman

SA02 LeonFelony@leoncountyfl.gov State Attorney's Office, Leon County Courthouse, 4th

Floor, 301 S. Monroe Street, Tallahassee, FL, and Capital Appeals Bureau,

capapp@myfloridalegal.com Office of the Attorney General, PL-0 1 The Capitol, Tallahassee,

Florida 32399-1050, pleadings@justiceadmilhQ!;~Ju~e Administrative Commission, P.O. Box

1654, Tallahassee, Florida 32302 on this~ of April, 2014.

RE

84
 THE STATE OF FLORIDA
JUSTICE ADMINISTRATIVE COMMISSION
Peat Office Box 1654 (32302)
227 North Bronaugh Street, Suite 2100
Tallahassee, Flortda 32301

Alton L. "Rip" Colvin, Jr. COMMISSIONERS

Executive Director
Brad King, Chair
(850) 488~2415 State Attorney
Toll Free (866) 355-7902 Diamond R. Litty
Public Defender
Jorry Hill
WWW lustlceadmln oro State Attorney
Nancy Daniele
Pub/lc Defender

LETTER OF NO OBJECTION

6/9/2014

ROBERT ALEX MORRIS alex@ramlawyer.com

Case Number: 37 CF 2008 000697 0000 XX Party: GARY HILTON

Dear Mr. Morris:

Pursuant to s. 27.711, F.S., the Justice Administrative Commission (JAC) has reviewed your
intended billing, affidavit and documentation for completeness and compliance with contractual
and statutory requirements in the above matter. Your motion to the Court to approve
compensation must specify whether JAC objects to any portion of the billing or the sufficiency of
documentation.

JAC has no objection to your billing for attorney fees in the amount of $2,090.00 in that this
amount does not exceed the $2,500.00 cap set forth ins. 27.711(4)(a), F.S.

JAC does not object to reimbursement of $172.70 for payment to Quill and $14.60 for your
payment to Stapes, however your request for reimbursement for $288.69 for payment to Leon
County is supported by a copy of your check in the amount of $286.69, therefore JAC does not
object to reimbursement in the amount of $286.69 for a total reimbursable amount of $473.99.
JAC notes that this amount does not exceed the $15,000.00 cap for miscellaneous expenses
set forth ins. 27.711(6), F.S. JAC does not request a hearing on your motion, and if a hearing
is scheduled, JAC does not request notice and will not appear in court.

Pursuant to Section 27.711 (13), F.S., the fact that JAC has not objected to any portion of a
billing or to the sufficiency of the documentation is not binding on the court, which retains
primary authority and responsibility for determining the reasonableness of all billings for fees,
costs, and related expenses, subject to statutory limitations.

When you file your Motion for Compensation, specify that JAC objects to portions of the billing.
You must attach a copy of this letter for the Court's determination of your fee.

Once you have obtained your order awarding attorney fees, please forward it to JAC for
payment.

JAC Legal Section

brb

The Justice Administrative Commission administratively serves the offices of Slate Attorney, Public Defender,
Capital Collateral Regional Counsel, the Statewide Guardian ad Litem Program, and the Criminal Conflict and ClvU
Regional Counsel; and provides compliance and financial review of court appointed attorney due process costs.

85
 IN THE CIRCUIT COURT OF THE
SECONDJUDICIALCIRCUIT IN
AND FOR LEON COUNTY, FL
STATE OF FLORIDA,

Vs. CASE NO.: 2008-CF-697 A

GARY M. HILTON, DIVISION: FELONY

Defendant.
--------------------~/

ORDER ON INTERIM MOTION TO INCUR FEES, COSTS

OR RELATED EXPENSES

THIS CAUSE having come before the Court upon the Defendant's Interim

Motion to Incur Fees, Costs or Related Expenses and good cause having been shown, it is

hereby,

ORDERED AND ADJUDGED that the Interim Motion to Incur fees, Costs or

Related Expenses is hereby GRANTED and the Defense is authorized to receive interim

payment of $2,563.99 in the above-styled cause.

DONE AND ORDERED m Chambers, Tallahassee, Leon County, Florida,

this q {lA_ day of June, 2014.

ESC. HANKINSON,
RCUIT JUDGE

Copies furnished to:

ROBERT A. MORRIS, ESQUIRE
JUDICIAL ADMINISTRATIVE COMMISION
':?
(J]

86
 . \ IN THE CIRCUIT COURT OF THE
PH \2· 4 SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO.: 2008-CF-697A

DIVISION: FELONY

GARY MICHAEL IDLTON,

DEFENDANT.

--------------------------~'

MOTION FOR POST -CONVICTION RELIEF

COMES NOW, the Defendant, Gary Michael Hilton, by and through the undersigned

counsel pursuant to Rule 3.851, Florida Rules of Criminal Procedure and files this Motion for

Post-Conviction Relief and as grounds therefore would state and allege as follows:

PRELIMINARY STATEMENT

The Defendant shall be referred to as the "Defendant." The State shall be referred to as

the "State." Any references to the Record shall be referred to by the designation "R" and the

appropriate volume and page number designations. In some instances, the volumes of the

Record are broken up and referred to by different stages of the proceedings (e.g. "Jury Selection,

Trial, Sentencing, etc ... ). In those cases, any references shall be referred to by the designation

"R" followed by the proceeding and the appropriate page number designation (e.g. R, Jury

Selection, 6). There will be references to documents and matters that will be made part of the

instant Motion without citation or reference. This is due to Rule 3.851, Florida Rules of

Criminal Procedure proving to be an unworkable "rule." The demands of the "rules" invite the

87
assembly of a document (a motion for post-conviction relief) in a relative! y short period of time

without the benefit of having all of the available references. Some of this is due to the concern

of filing the appropriate pleading/s within the jurisdictional time periods required to preserve

state remedies as well as federal remedies. Nonetheless, the undersigned will do his best to

direct the Court's attention, and that of opposing counsel, to the appropriate references.

STATEMENT OF CASE AND PROCEDURAL HISTORY

The Defendant was charged by Indictment on February 28, 2008 for First Degree

Murder, Grand Theft Motor Vehicle, Kidnapping and Grand Theft. (Ex. A). The Office of the

Public Defender for the Second Judicial Circuit filed a motion on March 5, 2008) seeking

appointment in the instant case. (Ex. B). An order granting the motion was entered on the same

date despite the State's somewhat dubious motion filed the next day asserting that the Defendant

didn't follow procedures or was not entitled to counsel. 1 (Ex. C). Nevertheless, the trial court

rectified the situation and entered an amended order of appointment. (Ex. D). The State filed

their Notice of Intent to Seek the Death Penalty on July 28, 2008. (Ex. E). The matter was

called on for trial and Jury Selection was conducted between January 31, 2011 and February 2,

2011. (R, Jury Selection, 1-1083). The "guilt phase" commenced on February 4, 2011 and

concluded on February 15, 2011. (R, Trial-Guilt Phase, 1-1609). The jury returned a verdict of

guilty of First Degree Murder (interrogatory verdict of premeditation and felony murder),

Kidnapping (interrogatory verdict of proof of intent to facilitate a felony and to inflict bodily

harm or terrorize and Grand Theft. (Ex. F). The jury found the Defendant not guilty of Grand

1
It is troublesome that the genesis of our "adversarial" legal process contemplates that it is completely acceptable
for the prosecutorial body (the State) to attempt to deprive an accused of any representation while the State tties to
build and mount a case that involves the interrogation and confrontation of the defendant despite watershed holdings
such as Gideon v. Wainwright, 372 U.S. 335 (1963).

. 2-

88
Theft Motor Vehicle. (Ex. F). The "penalty phase" commenced on February 17,2011 and

concluded on February 21, 2011. (R, Jury Trial- Penalty Phase, 1-758). The jury returned an

advisory verdict of 12-0 recommending the imposition of the death penalty. (Ex. G). A

"Spencer Hearing" was conducted on April7, 2011. (R, Spencer Hearing, 1-48). The Defendant

was adjudicated guilty on April 21, 2011 and sentenced to Death for Count I. (R, Sentencing, 1-

6, Ex. H, Ex I). The Defendant was sentenced to Life on Count II and five (5) years on Count

IV; each sentence to run consecutively. (R, Sentencing, 1-6, Ex. H, Ex I). The Defendant timely

filed a Notice of Appeal on May 4, 2011. (Ex. J).

The Defendant appealed to the Supreme Court of Florida who rendered their opinion on

March 21, 2013 in Hilton v. State, 117 So .3d 742 (Fla. 2013) (not final until the period for

moving for re-hearing). See Rule 9.330, Florida Rules of Appellate Procedure). In the opinion,

the Supreme Court of Florida affirmed the convictions and death sentence and addressed the

following grounds of appeal:

1) Collateral Crime Evidence (Admissions to other crimes during transport to FL)

2) Dr. Prichard's Testimony (Testifying about Defendant's past criminal conduct)

3) Witness Sequestration (Prichard remaining in the courtroom as an expert)

4) Aggravators (Insufficiency arguments for those enumerated below)

5) HAC

6) CCP

7) Mitigation (Argument that trial court erred in finding lack of capacity nofproven)

8) Ring Claim

9) Sufficiency (Independent assessment of Court that competent and substantial

evidence supports the convictions)

.3.

89
 10) Proportionality (Independent duty by Court to review and finding of proportionate)

(Ex. K).

The Defendant filed a motion for rehearing on April 2, 2013 which was denied on July 2,

2013. The Mandate was issued on July 31,2013. The United States Supreme Court denied a

Petition for Certiorari on December 2, 2013. Hilton v. Florida, 134 S.Ct. 686 (2013). (Ex. L).

ARGUMENT

The Supreme Court of Florida has explained that for ineffective assistance of counsel

claims to be successful, two factors must be established: First, the claimant must identify

particular acts or omissions of the lawyer that are shown to be outside the broad range of

reasonably competent performance under prevailing professional standards. Second, the clear,

substantial deficiency shown must further be demonstrated to have so affected the fairness and

reliability of the proceeding that confidence in the outcome is undermined. Bolin v. State, 41

So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927,932 (Fla. 1986)).

This articulation came based on the United States Supreme Court's holding in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The deficiency prong of Strickland "requires showing that counsel made errors so serious

that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. There is a strong presumption that

counsel's performance was not ineffective, and it is up to the defendant to present evidence to

overcome this presumption. ld. at 689. "A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

. 4.

90
circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Id.

The prejudice prong of Strickland is established where a defendant shows that "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Franqui v. State, 59 So.3d 82, 95 (Fla. 2011) (quoting Strickland,

466 U.S. at 694, 104 S.Ct. 2052).

I. TRIAL COUNSEL WAS INEFFECTIVE IN

PRESENTING A "DEFENSE" OF INNOCENCE
AND/OR REASONABLE DOUBT DURING THE
GUlL T PHASE AND THEN MAKING A
CONCILIATORY ARGUMENT IN FAVOR OF LIFE
DURING THE PENALTY PHASE THAT SERVED AS
A COMPLETE JUXTAPOSITION OF THE GUILT
PHASE AND IN CONJUNCTION THE DEFENDANT
WAS NEVER CONSUL TED ABOUT THE
CONSEQUENCES OF SUCH A DEFENSE.

Defense counsel undoubtedly has a duty to discuss potential strategies with a defendant.

See Strickland v. Washington, 466 U.S. 668,688, !04 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It has

been acknowledged by the United States Supreme Court that denial of responsibility or

commission of offenses during the guilt phase can compromise the defense's ability to persuade

the jury during the penalty phase. See Florida v. Nixon, 543 U.S. 175, 125 S.Ct 551 (2004). It is

conceded counsel is not required to obtain the defendant's consent to "every tactical decision."

Taylor v. Illinois, 484 U.S. 400,417-418, 108 S.Ct. 646,98 L.Ed.2d 798 (1988) (an attorney has

authority to manage most aspects of the defense without obtaining his client's approval).

Attorneys representing defendants in capital cases face daunting challenges in developing

trial strategies, particularly where evidence of guilt is overwhelming. Prosecutors are more likely

-5-
91
to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is

overwhelming and the crime heinous. See Goodpaster, The Trial for Life: Effective Assistance of

Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 329 (1983). In such cases, "avoiding

execution [may be] the best and only realistic result possible." ABA Guidelines for the

Appointment and Peiformance of Defense Counsel in Death Penalty Cases§ 10.9.1,

Commentary (rev. ed.2003), reprinted in 31 Hofstra L.Rev. 913, 1040 (2003).

Where guilt is overwhelming, defense counsel must reasonably decide to focus on the

trial's penalty phase, at which time counsel's mission is to persuade the trier that his client's life

should be spared. Where defense counsel is unable to negotiate a guilty plea in exchange for a

life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course.

See Lyon, Defending the Death Penalty Case: What Makes Death Different? 42 Mercer L.Rev.

695, 708 (1991) ("It is not good to put on a 'he didn't do it' defense and a 'he is sorry he did it'

mitigation. This just does not work. The jury will give the death penalty to the client and, in

essence, the attorney."); Sundby, The Capital Jury and Absolution: The Intersection of Trial

Strategy, Remorse, and the Death Penalty, 83 Cornell L.Rev. 1557, 1589-1591 (1998)

(interviews of jurors in capital trials indicate that juries approach the sentencing phase

"cynically" where counsel's sentencing-phase presentation is logically inconsistent with the

guilt-phase defense); id., at 1597 (in capital cases, a "run-of-the-mill strategy of challenging the

prosecution's case for failing to prove guilt beyond a reasonable doubt" can have dire

implications for the sentencing phase). In this light, counsetcannot be deemed ineffective for

attempting to impress the jury with his candor and his unwillingness to engage in "a useless

charade." United States v. Cronic, 466 U.S. 648, 656-657, n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984).

- 6-
92
 Justice Ginsburg, delivering the Opinion for the Court in Nixon, noted:

"Renowned advocate Clarence Darrow, we note, famously employed a similar

strategy as counsel for the youthful, cold-blooded killers Richard Loeb and
Nathan Leopold. Imploring the judge to spare the boys' lives, Danow declared: "I
do not know how much salvage there is in these two boys .... I will be honest with
this court as I have tried to be from the beginning. I know that these boys are not
fit to be at large." Attorney for the Damned: Clarence Darrow in the Courtroom
84 (A. Weinberg ed.l989); see Tr. of Oral Arg. 40-41 (Darrow's clients "did not
expressly consent to what he did. But he saved their lives."); cf. Yarborough v.
Gentry, 540 U.S. 1, 9-10, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)."
Nixon, 543 U.S. at 192.

In Occhicone v. State, 768 So.2d 1037 (Fla. 2000), the Florida Supreme Court held that

"strategic decisions do not constitute ineffective assistance of counsel if alternative courses have

been considered and rejected and counsel's decision was reasonable under the norms of

professional conduct." !d. at 1048.

In the instant case, there were "strategic issues" that were incredibly problematic. They

were not strategic at all; they were without strategy. The "defense" apparently formulated a

"strategy" that the argument should be posited that the Defendant did not commit the crimes with

which he was charged in the face of the evidence. (R. Trial, Guilt Phase, 47-55, 1529-1560).

Thereafter, and upon conviction, it was determined (or predetermined) that the argument should

be asserted that Defendant should be the recipient of a life sentence due to mitigators and/or the

absence of aggravators. (R. Trial, Penalty Phase, 36-747). The conflicting defense theories

served to assure the rejection of counsels' arguments as well as any and all of the Defendant's

mitigation which may have served to avoid the recommendation of imposition of the death

penalty. This cannot be said to be strategy given the norms among advocates in death penalty

litigation. There is nothing strategic about the competing presentations. In fact, it is to the

contrary.

.7.

93
 Compounding matters further, counsel did not have discussion with the Defendant about

the merits, positives and negatives about making arguments in the differing phases of the trial

that were "in the alternative." The Defendant would not have allowed the presentation of his

defense, in the manner presented, had he been afforded the opportunity to ascertain knowledge of

the intended defense and been able to contribute.

Given the foregoing, counsel was ineffective in representing the Defendant. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a

reasonable probability that the outcome in the proceedings would have been different if counsel

had not embarked on their divergent defense. See Id. The Defendant's convictions and sentence

should be vacated.

II. TRIAL COUNSEL WAS INEFFECTIVE IN THEIR

FAILURE TO ADVISE THE DEFENDANT OF HIS
RIGHT TO ENTER A GUILTY PLEA TO FIRST
DEGREE MURDER AND TO PROCEED DIRECTLY
TO A PENALTY PHASE PROCEEDING IN AN
EFFORT TO AVOID THE JURY BEING TWICE
EXPOSED TO MATTERS THAT OBEJCTIVE
PERSONS WOULD FIND REPUGNANT.

"[M]any public defenders will be motivated by their ardent belief in the constitutional

values that the public defender upholds. At some point, however, abstract theoretical

justifications fall short in the face of reality. For example, defenders who are motivated by a

belief that no individual is guilty until proven so, soon find that such moral indeterminacy does

not comport with their daily experiences." Charles J. Ogletree, Jr:, Beyond Justification:

-8-
94
Seeking Motivations to Sustain Public Defenders, April1993 Harvard L.Rev. 1239 (citations

omitted). 2

Pleading guilty without a guarantee that the prosecution will recommend a life sentence

holds little if any benefit for the defendant. See ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases§ 10.9.2, Commentary (rev. ed.2003),

reprinted in 31 Hofstra L.Rev. 913, 1045 (2003) ("If no written guarantee can be obtained that

death will not be imposed following a plea of guilty, counsel should be extremely reluctant to

participate in a waiver of the client's trial rights."). Pleading guilty not only relinquishes trial

rights, it increases the likelihood that the State will introduce aggressive evidence of guilt during

the sentencing phase, so that the gruesome details of the crime are fresh in the jurors' minds as

they deliberate on the sentence. See Goodpaster, 58 N.Y.U.L.Rev., at 331; supra, at 558-559,

560-561.

However, counsel for a defendant in a capital case certainly has the obligation to explain

options and alternatives to a defendant. It is an acknowledged concept of law that a plea is

acceptable even where that plea contains a "protestation of innocence when ... a defendant

intelligently concludes that his interests require entry of a guilty plea and the record before the

judge contains strong evidence of actual guilt." See Florida Bar v. Levine, 571 So.2d 420, 421 n.

1 (Fla.1990) quoting North Carolina v. Alford, 400 U.S. 25, 37,91 S.Ct. 160, 167,27 L.Ed.2d

162 (1970). Likewise, it is completely acceptable in the State of Florida for a defendant to enter

2 As this court is aware, the undersigned has served as conflict counsel representing the indigent for more than
sixteen (16) years and has the utmost respect for those who do. Invariably, the instant ground will be incorrectly
interpreted as an attack on those who defend the indigent. That simply is not the case. This pleading is filed on
behalf of an individual on Death Row who relies upon the undersigned to champion his rights and to protect the
sanctity of his life without deference to bias or prejudice .

. 9-

95
a guilty plea to first degree murder and move directly to a penalty phase proceeding. See Allred

v. State, 55 So.3d 1267 (Fla. 2010).

In the instant case, the Defendant was not advised of his ability to enter a guilty plea and

proceed directly to a penalty phase whether with or without a jury. He was not advised of the

potential ramifications of a jury being exposed to overwhelming evidence of guilt during the

guilt phase and being re-exposed to much of the same evidence again in the penalty phase.

Similarly, he was not advised of the negatives associate with a decision to enter a guilty plea and

proceed in that fashion. In short, the Defendant was always of the belief that he had no choice

but to proceed to trial and was not advised of the options and alternatives available and any

professional advice associated therewith. The Defendant's understanding was that he must plod

forward to trial with no option but to fight against the crushing weight of evidence against him.

Had the Defendant been advised of his due process rights and options, he would have

elected a different course and there is a reasonable probability the election would have impacted

the outcome. The Defendant should have been afforded this opportunity. His right to trial is just

that; his. It appears that trial counsel deprived the Defendant of an election of rights because of

their personal disagreement with their perception of the viability of the option. The Defendant

was not incompetent to proceed, thus allowing counsel to make decisions in his stead. He should

have been afforded the very rudimentary and basic options and the legal advice associated with

those options? The Defendant contends that the outcome of the proceedings would be wholly

3 The options provided should have been: l) You may have a trial as it relates to your guilt. If found guilty, there
will be a penalty phase where a recommendation is made about tbe sentence being life or death. 2) You may waive
your right to the guilt phase and plea and then proceed to the penalty phase where the same recommendations will
be made. 3) You can waive your right to a jury trial as it relates to both tbe guilt phase and/or the penalty phase.
Discussion should have been held as it relates to each option. 4) We can concede guilt in the guilt phase in order to
retain credibility for the penalty phase.

. 10.

96
different had he been provided that information because the jury would not have been forced to

absorb days upon days of "defense" combatting the inevitable to only then be forced to a penalty

phase where the jury would be exposed to much of the same information on the heels of having

denied responsibility. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

III. TRIAL COUNSEL WAS INEFFECTIVE BY

PROVIDING AN INADEQAUTE DEFENSE TO
GARY MICHAEL HILTON AS A RESULT OF
RANCOR, DISHARMONY, DISCORD, ENMITY
AND HOSTILITY AMONG DEFENSE COUNSEL
AND WITIDN THE OFFICE OF THE PUBLIC
DEFENDER FOR THE SECOND JUDICIAL
CIRCUIT.

Counsel should ensure that the workload of defense team members in death penalty cases

is maintained at a level that enables counsel to provide each client with high quality legal

representation in accordance with these supplementary Guidelines and the ABA Guidelines as a

whole. "All too often in defender organizations[,] ... attorneys are asked to provide

representation in too many cases .... Unfortunately, not even the most able and industrious

lawyers can provide quality representation when their workloads are unmanageable. Excessive

workloads, moreover, lead to attorney frustration, disillusionment by clients, and weakening of

the adversary system. See ABA Guidelines for the Appointment and Peiformance of Defense

Counsel in Death Penalty Cases§ 10.9.2, Commentary (rev. ed.2003), reprinted in 31 Hofstra

L.Rev. 913, 1045 (2003) citing ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-5.3 cmt. (3d ed. 1992); see also Model Code of Prof'! Responsibility EC 2-30 (1997);

Model Rules of Prof'! Conduct Rule 1.3 cmt. 2 (2002) ("A lawyer's work load must be

controlled so that each matter can be handled competently."); Kim Taylor-Thompson, Tuning Up

- 11 -
97
Gideon's Trumpet, 71 Fordham L.Rev. 1461, 1509 (2003) ("If a defense delivery system does

not at once identify and impose limits on the number of cases for which an individual lawyer will

be responsible, case pressures will inevitably overwhelm the lawyer and compromise the

representation.").

In the case of mitigation specialists on the staff of an institutional defender office, the

office should implement mechanisms to ensure that their workload is maintained at a level that

enables them to provide each client with high quality services and assistance in accordance with

these Guidelines. See ABA Supplementary Guidelines for the Mitigation Function of Defense

Teams In Death Penalty Cases (2008) § 6.1, reprinted in 36 Hofstra L.Rev. 677 (2008). It is the

duty of the defense team to aid counsel in coordinating and integrating the case for life with the

guilt or innocence phase strategy. /d. § 10.1 (A).

Guideline 4.1 of the ABA Supplementary Guidelines for the Mitigation Function of

Defense Teams In Death Penalty Cases (2008) provides:

THE CAPITAL DEFENSE TEAM: THE ROLE OF MITIGATION SPECIALISTS

A. In performing the mitigation investigation, counsel has the duty to

obtain services of persons independent of the government and the right to

select one or more such persons whose qualifications fit the individual

needs of the client and the case. Applications to the court for the funding

of mitigation services should be conducted ex parte, in camera, and under

seal.

B. Counsel has a duty to hire, assign or have appointed competent team

members; to investigate the background, training and skills of team

. 12.

98
members to determine that they are competent; and to supervise and direct

the work of all team members. Counsel must conduct such investigation of

the background, training and skills of the team members as will determine

that they are competent and must ensure on an ongoing basis that their

work is of high professional quality.

C. All members of the defense team are agents of defense counsel. They

are bound by rules of professional responsibility that govern the conduct

of counsel respecting privilege, diligence, and loyalty to the client. The

privileges and protections applicable to the work of all defense team

members derive from their role as agents of defense counsel. The

confidentiality of communication with persons providing services

pursuant to court appointment should be protected to the same extent as if

such persons were privately retained. Like counsel, non-attorney members

of the defense team have a duty to maintain complete and accurate files,

including records that may assist successor counsel in documenting

attempts to comply with these Guidelines.

D. It is counsel's duty to provide each member of the defense team with

the necessary legal knowledge for each individual case, including features

unique to the jurisdiction or procedural posture. Counsel must provide

mitigation specialists with knowledge of the law affecting their work,

including an understanding of the capital charges and available defenses;

applicable capital statutes and major state and federal constitutional

principles; applicable discovery rules at the various stages of capital

- 13-

99
 litigation; applicable evidentiary rules, procedural bars and "dooropening"

doctrines; and rules affecting confidentiality, disclosure, privileges and

protections.

A. COUNSEL WAS INEFFECTIVE AS A RESULT

OF THE OVERWHLEMING CASELOAD
ASSIGNED TO THE OFFICE OF THE PUBLIC
DEFENDER FOR THE SECOND JUDICIAL
CIRCUIT AS WELL AS INDIVIDUAL
ATTORNEYS AND THE APPORTIONMENT OF
CASES AMONG THE ATTORNEYS ASSIGNED
TO THE CAPITAL SECTION.
In the instant case, counsel was ineffective due to the high volume of death penalty cases

assigned to, among and within the Office of the Public Defender for the Second Judicial Circuit.

Lead counsel in the case expressed inability to properly represent the Defendant with effective

representation on several occasions due to over -extension and overwhelming caseload. As a

result, the Defendant did not receive effective assistance of counsel. Counsel asked for relief and

opportunity from the employer for the Defendant to have effective assistance of counsel. That

relief did not come in a manner that afforded the Defendant effective assistance of counsel. The

employer's decision about making a transfer of the lawyer among the Defendant's "trial ranks"

as well as within the office, upon complaint, cannot be said to have afforded the Defendant with

effective assistance of counsel.

The Defendant did not receive effective assistant of counsel due to the high volume of

cases and the workload assigned to counsel. The outcome would have been differ~nt had the

Defendant not been placed in a circumstance where the foregoing situation transpired. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

- 14 -

100
 B. COUNSEL WAS INEFECTIVE BECAUSE THE
ENITRE DEFENSE TEAM WAS REASSIGNED
TO DIFFERENT ROLES WITHIN DAYS OF THE
DEFENDANT'S TRIAL LEAVING THEM EACH
INDIVIDUALLY IN CAPABLE OF BEING
EFFECTIVE IN THEIR NEW AREA OF
ASSIGNMENT.

Defense counsel was ineffective for not presenting a cogent and consistent argument.

Counsel was "re-shuffled" to meet the emotional, psychological and physiological demands of

the defense team on the "eve of trial" and at the "eleventh hour." Each member of the team was

re-organized into a role that they had not previously been properly familiar with. This came as a

result of those matters addressed above in Argument III, Paragraph A. There is no question that

each defense attorney involved was familiar with the case, but counsel was rendered deficient

and ineffective due to the case being very specific in terms of role and function of counsel.

Essentially, the lawyers stopped being effective in their respective areas and hoped to do their

best going forward without the requisite familiarity with the facts specific to their role. 4

Lead counsel viewed the matter through one lens and asked for help or reassignment in

the case. The mitigation specialist viewed it through a different lens and resigned (emphasis

supplied) due to her work and advocacy not being utilized on behalf of the Defendant when it

should have been utilized. The youngest lawyers were zealous advocates and one felt so

disenfranchised and in such disagreement with the defense team that they resigned or were

terminated due to insubordination. 5 While each lawyer assigned to the case has "tried cases" in

4
The undersigned has over ISO banker's boxes of documents and dozens of "Gigs" of data in this case and it is
difficult to imagine people being able to "brush up" on all of this in the final moments of trial preparation.
5 What is evident is that the lawyer filed a pleading styled "Notice of Withdraw" in the midst of a trial; which is

arguably bizarre and best characterizes the fracture in the defense team.

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101
the past, the re-shuffling process resulted in lawyers who do not regular! y try jury trials doing

exactly that. The effort in this trial was inconsistent, incongruous and ineffective.

In this instance the Defendant was denied effective assistance of counsel due to the

fracture, discord, disagreement and disharmony among defense counsel. Defense counsel was

incapable of rendering effective assistance of counsel due to the combativeness within. The

Defendant was an audience member to the trial within his trial team. Had this circumstance not

occurred, the outcome in the trial would have been different. See Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

C. COUNSEL FOR THE DEFENSE REJECTED AND

FAILED TO UTILIZE CRUCIAL MITIGATION
DURING THE PENALTY PHASE THAT WAS
DEVELOPED BY THE MITIGATION EXPERT
ASSIGNED TO THE CASE.
Defense counsel failed to present a wealth of information that would have served to

humanize the Defendant and would have served to have a meaningful impact on the jury's

recommendation of life versus death. More specifically, the mitigation expert developed Power

Point presentations on the life history of the Defendant. 6 Likewise, the mitigation expert

developed a chronological history of the Defendant's medical and mental health history. 7 The

mitigation expert prepared an extensive list of witnesses that could provide an excellent

chronology of the Defendant's life and circumstances. The mitigation expert developed

6
The Power Point presentation tracks the Defendant in a very poignant manner.
7 This included history of his doctor who was over-prescribing medication to the Defendant on which the defense
was incredibly reliant and the State sought to. But, it included important information that the Defendant didn't
simply "self-diagnose" himself with Multiple Sclerosis. The records reflect that the doctor actually believed that the
Defendant had "relapsing remitting Multiple Sclerosis" and the doctor also wrote a note to a federal court seeking to
excuse him from jury duty opining that the Defendant had a "form of Multiple Sclerosis."

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102
mitigation and evidence that would provide a jury with a very visceral view of the Defendant.

That evidence was not used.

Instead, defense counsel opted for a very clinical and sterile approach in seeking to avoid

the death penalty. The defense called a few "clinicians" to testify about the Defendant's

diagnosis and/or problems. More specifically, counsel relied upon Dr. Wu 8 to "carry the day"

with his PET scan analysis in conjunction with psychologists and neuro-psychologists who had

little or no familiarity with the history of the Defendant other than the documents they were

provided to review. The defense also called a couple of friends and family in support of his

character.

The Defendant's trial may well have been one where counsel "ground through" the guilt

phase and felt hopeless at the conclusion. Counsel is entitled to those feelings, but that is not

acceptable as it relates to the Defendant. First, defense counsel made the ineffective decision to

combat everything during the guilt phase. Second, defense counsel is required to be effective in

the penalty phase irrespective of whether they feel "bleak or blue" about the prospects and the

potential outcome. 9 The Defendant's penalty phase presentation reads "on a cold record" as one

which is devoid of any presentation of humanity.

In sum, the mitigation specialist assigned to the case prepared an extensive and massive

amount of mitigation evidence and testimony with witnesses who were able to testify about the

8 Dr. Wu has gained a dubious and questionable reputation as it relates to his credibility and testimony in death
penalty cases; particularly in Florida. See http://www. voiceofoc.org!oc south/article ca05b81 e-b794-l 1 e3-b723-
00 19bb2963(4.html. A review of his Power Point presentation to the jury contains slides of that have absolutely no
relevance or bearing on the Defendant's case whatsoever.
9 If counsel thought or had the premonition that "we have lost this jury," is it not wiser to throw the entire weight of

the defense's mitigation over the jury rail and for the purposes of hoping to get a division in the recommendation
and/or preserving the record?

• 17 .

103
Defendant's life circumstances, mental health, physical health, character, etc ... Virtually none

of it was used. The mitigation expert resigned her long-held position as a result of this

circumstance. This speaks volumes as to the fracture in the defense.

The Defendant, after having established a relationship with the mitigation expert,

believed, desired and expected that significant mitigation developed and acquired would be

presented to the jury during a penalty phase. It was not presented. Counsel was ineffective for

failing to present the mitigation evidence. Had counsel presented the mitigation evidence there

is a substantial likelihood of a different recommendation in the penalty phase. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

IV. TRIAL COUNSEL WAS INEFFECTIVE FOR

FAILING TO ADEQUATELY INVESTIGATE,
RESEARCH AND PRESENT EVIDENCE RELATED
TO THE DEFENDANT'S EARLY CHILDHOOD
DEVELOPMENT, BRAIN TRAUMA, INJURY,
COGNITIVE IMPAIRMENT AND MENTAL
HEALTH BEFORE AND AFTER WHAT WAS
PRESENTED AT TRIAL AS WELL AS THE
EPIDEMIOLOGY ASSOCIATED AND TO PRESENT
EVIDENCE TO THAT END.

The general rule is "(a]n attorney has a duty to conduct a reasonable investigation.

including an investigation of the defendant's background, for possible mitigating evidence."

Ventura v. State, 794 So.2d 553, 570 (Fla. 2001) (quoting Rose v. State, 675 So.2d 567, 571

(Fla.1996)).

On March 31, 2009, Chris Ellrich forwarded a memorandum for the Office of the Public

Defender for the Second Judicial Circuit by facsimile to the Miami-Dade County Clerk of

Courts. This memorandum requested records related to the Defendant's arrest "around

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104
September 1961 for attempted murder." No effort was made to physically go to obtain those

records beyond the facsimile mentioned above.

Ms. Kimberly Stevens, Esq. was court-appointed to represent the Defendant in United

States v. Gary Michael Hilton, 1:11-cr-00049-MR-DLH-1, in the United States District Court for

the Eastern District of North Carolina. Ms. Stevens has been a civil and criminal litigator in the

trial and appellate courts of the State of North Carolina since 1993, and was a law clerk to United

States District Judge Patrick J. Duggan, Eastern District of Michigan, Detroit Division, in 1992.

Ms. Stevens has provided direct trial and post-conviction representation in approximately 35

death penalty cases. She has been appointed by the federal courts as learned counsel in capital

cases in North Carolina, Virginia, Nevada and Puerto Rico. She is also a consulting capital

attorney in conjunction with the Trial Assistance Unit at the North Carolina Office of Indigent

Defense Services for trial counsel in capital cases throughout the State of North Carolina. She

served as an Assistant Capital Defender for the State of North Carolina in recent years.

Ms. Stevens and her staff directly communicated with the Miami-Dade County Clerk of

Court and Juvenile Services and physically went to attempt to obtain documents. During that

effort, Ms. Stevens and her defense team learned that the records related to the Defendant had

recently been destroyed and would have been available had the Defendant's trial counsel gone to

obtain them during the pendency of the instant case. This related to both court records as well as

medical records.

A reconstruction of the record reflects the Defendant in juvenile custody on or before

September 6, 1961. He was placed in the care and custody of a Mrs. Ruth Heller on or about

September 13, 1961. On September 15, 1961, the following entry appears, "Order: Gary com. to

- 19 •

105
psychiatric in patient services of Jackson Memorial for observation evaluation and possible

treatment; authorities to advise Court when child ready to be discharged." It does not appear that

he was released approximately one month later. On May 7, 1962, the Defendant was removed

from Ms. Heller's care and custody and transferred to that of Mr. and Mrs. Frank Capuzzi. On

January 25, 1963, the Defendant was removed from the care and custody of Mr. and Mrs.

Capuzzi and returned to his mother.

Had this information been investigated and properly presented it would have enabled the

defense to paint an entirely different picture of the Defendant during the penalty phase and to

combat the State's aggressive contention by their own expert. (R. Penalty Phase, 568-684).

Defense counsel would have been able to adequately portray and describe the Defendant from a

very young age to the point of the offense that is the subject of this case. That would have

included a description of his incarceration at a young age, his psychiatric hospitalization at a

young age, the psycho-social reasons of the crime for which he was incarcerated at a young age,

his rape by an attorney at a very young age, etc ... The defense was ineffective in their failure to

start at the beginning of the Defendant's life and to explain sequentially and chronologically how

a person arrives at the conduct in the instant case.

During the testimony of the State's expert, he was essentially reliant upon what he heard

in the courtroom during testimony as well as historical documents he was afforded the

opportunity to review. He concluded and opined on several occasions that the Defendant had

certain psychological features and defects without the benefit of knowing the Defendant's full

psychological development history. This served as a powerful tool for the State to rebut and

rebuff the scant defense amounted.

. 20.

106
 Defense counsel was ineffective in their failure to properly investigate matters related to

the Defendant's early childhood development, brain trauma, injury, cognitive impairment and

mental health both before and after the evidence presented at trial. Had counsel been effective,

the outcome of the trial would have been different. See Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

V. TRIAL COUNSEL WAS INEFFECTIVE FOR THEIR

FAILURE TO INVESTIGATE THE DEFENDANT'S
ACTUAL MENTAL HEALTH AILMENT AND
DIAGNOSIS AND PRESENT EVIDENCE DURING
THE PENALTY PHASE RELATED TO THE
SPECIFIC DIAGNOSIS AND CONDITION.

The general rule is "[a]n attorney has a duty to conduct a reasonable investigation,

including an investigation of the defendant's background, for possible mitigating evidence."

Ventura v. State, 794 So.2d 553, 570 (Fla. 2001) (quoting Rose v. State, 675 So.2d 567, 571

(Fla.1996)).

In the instant case, there is evidence the Defendant was diagnosed with Multiple

Sclerosis. Multiple Sclerosis (MS) is a cell-mediated autoimmune condition characterized by

repeated episodes of inflammation of the nervous tissue in the brain and spinal cord, causing loss

of the insulating myelin sheath. It is documented science that MS can create lesions on the brain

that serve to create brain atrophy and cognitive impairment. See

http://archneur.jamanetwork.com/article.aspx?articleid=785384. Defense counsel did call a

neurologist as an expert witness in the defense case, but that was to generically testify about

observed abnormalities in the brain function based on analysis of a PET scan. The Defendant

was never properly evaluated for his neurological condition to discern whether there was an

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107
arguable and contributing defense that would serve in mitigation. Instead, the State was enabled

to argue that the Defendant "self-diagnosed" himself with MS and utilized this point through

their expert witness' testimony.

The Defendant asserts that he does in fact have a neurological condition that impacts his

cognitive capacities. Had defense counsel taken the time obtain a proper evaluation and

diagnosis, the outcome of the trial would have been different. See Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel was ineffective for failing to do so

and present evidence of such.

VII. MR. HILTON'S EXECUTION WOULD VIOLATE

THE EIGHTH AMENDMENT.

A. EXECUTING THE METALLY ILL

CONSTITUTES A VIOLATION OF THE EIGHTH
AMENDMENT'S PROHIBITION AGAINST
CRULE AND UNUSUAL PUNISHMENT.

Courts identify "the evolving standards of decency that mark the progress of a maturing

society," Trap v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion), in order to determine which

punishments "are forbidden," Wilkerson v. Utah, 99 U.S. 130, 136 (1879), by the Eighth

Amendment. Evolving standards can be identified via "objective indicia," Roper v. Simmons,

543 U.S. 551,572 (2005), and by "the standards elaborated by controlling precedents and by the

Court's own understanding of the Eighth Amendment's text, history, meaning, and purpose."

Kennedy v. Louisiana, 128 S.Ct. 2641, 2650 (2008); see also Graham v. Florida, 130 S.Ct. 2011,

2021 (2011). Because of his mental illness, brain damage, bipolar disorder, anxiety disorder,

depression and multiple sclerosis at the time of the offense, Defendant's execution would violate

the Eight Amendment.

. 22.

108
 "The concept of proportionality is central to the Eighth Amendment." Graham, 130 S.Ct.

at 2021 (2011). Our evolved standards of decency limit the death penalty to "those offenders

who commit 'a natTOW category of the most serious crimes' and whose extreme culpability

makes them 'the most deserving of execution,"' Kennedy, 128 S.Ct. at 2650 (quoting Roper, 543

U.S. at 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304,319 (2002)). An offender must

truly be the "worst of the worst," Kennedy, 128 S.Ct. at 2650, to be eligible for execution; and to

be the worst, a defendant must be the most "culpable" of offenders. Atkins, 536 U.S. at 319 ("the

lesser culpability of the mentally retarded"); Roper, 543 U.S. at 571 (relying on "the diminished

culpability of juveniles").

In Hall v. Florida, Justice Kennedy writing for the Court opined:

"They have a "diminished ability" to "process information, to learn from experience, to

engage in logical reasoning, or to control impulses ... [which] make[s] it less likely that they can

process the information of the possibility of execution as a penalty and, as a result, control their

conduct based upon that information." Atkins, 536 U.S., at 320, 122 S.Ct. 2242. Retributive

values are also ill-served by executing those with intellectual disability. The diminished capacity

of the intellectually disabled lessens moral culpability and hence the retributive value of the

punishment. See id., at 319, 122 S.Ct. 2242 ("If the culpability of the average murderer is

insufficient to justify the most extreme sanction available to the State, the lesser culpability of

the mentally retarded offender surely does not merit that form of retribution")." Hall, 134 S.Ct.

1986 (20 14). 10

10 On its face, much of the reasoning in Hall seem logically to apply to persons with mental illness:

If Defendant's doctors and medical history are correct, Defendant's mental deficiencies are comparable in
severity to mental retardation. In Hall, the Court held that to have a rigid test defining what constitutes

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109
 Given the evidence in the Defendant's case of mental illness, brain damage, bipolar

disorder, anxiety disorder, depression and multiple sclerosis, he does not qualify for "the worst

of the worst" and his death sentence is disproportionate punishment under the Eighth

Amendment The Defendant suffered a brain injury at a young age, has manifested

psychological and mental impairment from a very young age forward, suffered depression the

entirety of his life, has been diagnosed as bi-polar, has suffered anxiety, has malformations in

crucial functioning areas of his brain and was diagnosed with Multiple Sclerosis.

When a defendant's mental functioning is seriously compromised, the defendant is not

the worst of the worst For example, the mentally retarded are not the most culpable because

they have "disabilities in areas of reasoning, judgment, and control of their impulses" and "do

not act with the level of moral culpability that characterizes the most serious adult criminal

conduct" Atkins, 536 U.S. 306-307. A person who has diminished capacities to understand and

process information, to communicate, to abstract from mistakes and learn from experience, to

control impulses and to understand the reaction of others," Atkins, 536 U.S. at 318, is not the

most culpab!e_ll

mental retardation because the test in Florida failed to take into account the error implicit in the test's own
design, but it also precluded the court from considering deficits in the defendant's adaptive functioning
over his life.
II On its face, much of the reasoning in Atkins seems logically to apply to persons with mental illness in the same
manner as described in Hall.

People v. Danks, 82 P.3d !249, 1285 (S.Ct. Cal 2004) (Kennard concurring/dissenting); see also Bryan v. Mullin,
335 F.3d 1207, 1237 (IO"' Cir. 2003) (dissenting op.; Supreme Court's logic applies to those with severe mental
deficiancies"); Corcoran v. State, 774 NE 495 (Ind. 2002) (Rucker J., dissenting) (Atkins rationale is "just as
compelling" for prohibiting the execution of the "seriously mentally ill"); State v. Nelson, 803 A2d I (NJ 2002)
(Zappala, J., concurring)("Lesser culpability" of seriously mentally ill defendant is indistinguishable from mentally
retarded defendant).

. 24.

110
 Similarly, the Supreme Court held that the Eighth Amendment ban on excessive and

cruel and unusual punishments prohibits the execution of juveniles because of their "diminished

culpability," their developing brains, and their propensity for "'ill-considered actions and

decisions."' Roper, 543 U.S. at 568. The Atkins and Roper categorical bans on executions ought

to apply to the seriously mentally ill, and to persons with brain impairment. 12

In the instant case, the Defendant presented extensive evidence of mental health issues,

defect, injury and impairment. As such, the execution of the Defendant is violative of the Eighth

Amendment to the United States Constitution.

B. FLORIDA'S APPLICATION OF THE DEATH

PENALTY VIOLATES EVOLVING STANDARDS
OF DECENCY AND IS ARBITRARY AND
CAPRICIOUS BECAUSE IT ALLOWS A SIMPLE
MAJORITY OF THE JURY TO RECOMMEND
DEATH AND THE TRIAL JUDGE TO
DISREGARD A LIFE SENTENCE
RECOMMENDATION.

The death penalty, as enacted in section 921.141, Florida Statutes is unconstitutional

because it poses a risk of arbitrary enforcement based on non-unanimous juror death sentence

recommendations and judicial override. As noted by Justice O'Connor in her concurrence to

Eddings v. Oklahoma the criminal justice system must go "to extraordinary measures to ensure

that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is

humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or

mistake." Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (O'Connor, J., concurring). The

arbitrary nature of Florida's use of the death sentence, in this case, is in violation of the Eighth

12
Several state courts have refused to recognize that Atkins and/or Simmons require that seriously mentally ill
and/or brain damaged individuals, with their reduced culpability, cannot be executed under the Eighth Amendment.
See, e.g., Reese v. State, 14 So.3d 913 (Fla. 2009); State v. Hancock, 840 N.E.2d 1032 (Ohio 2006); Lewis v. State,
620 S.E.2d 778 (Ga. 2005).

- 25-

111
Amendment of the Consitution and the corresponding provision of the Florida Constitution. U.S.

Canst. amend. VIII; art. I, § 17, Fla. Canst.

Eighth Amendment jurisprudence requires the courts consider "the evolving standards of

decency that mark the progress of a maturing society." Roper v. Simmons, 543 U.S. at 574;

Atkins v. Virginia, 536 U.S. 304, 316 (2002). Florida's jury recommendation system in capital

cases is not in accord with the evolving standards of decency because juries are neither required

to issue a unanimous death sentence on punishment, nor is their recommendation binding on the

trial court. Pursuant to Graham v. Florida, the Eighth Amendment's Cruel and Unusual

Punishments Clause analysis requires that a court make two determinations on a "sentencing

practice at issue." 560 U.S._, S.Ct. 2011 (2010). Courts are first to take into account

"objective indicia of society's standards as expressed in legislative enactments and state

practice." !d. See also Atkins, 536 U.S. at 312 ("[T]he 'clearest and most reliable objective

evidence of contemporary values is legislation enacted by the country's legislatures."') (quoting

Perry v. Lynaugh, 492 U.S. 302 (1989)). Second, courts consider whether the punishment at bar

comports with "the standards elaborated by controlling precedents and by the Court's own

understanding and interpretation of the Eighth Amendment's text, history, meaning, and

purpose." !d.

With respect to the societal standards, thirty-two out of thirty-four death penalty states

require unanimous death sentences and do not allow judges to override the jury. Unanimous

Sentencing in Capital Felonies, http:i/tlondacapitalresourcecenter.org/statutes-rules/proposed-

legislation/2012/. Only in the two remaining death penalty states, Florida and Alabama, is

unanimity not required. Moreover, in these two states, the jury's recommendation is non-binding

on the judge, meaning that the court can override a life recommendation and sentence the

. 26-

112
defendant to death. § 921.141(3), Fla. Stat. Finally, Florida is the only state in the union that

allows juries to recommend a death sentence by a simple majority. 13 See Whitfield v. State, 706

So. 2d 1 (Fla. 1997).

It is acknowledged that the recommendation of the jury in the Defendant's case was

unanimous. However, it is also acknowledged that Florida is an outlier that does not comport

with societal norms where the structure calls for the jury to make a "recommendation" that need

not be unanimous and can be overridden by a trial court.

The second reason Florida's death sentencing scheme is out of step with the Eighth

Amendment's evolving standards of decency is because it is the only state that allows a judge to

override a jury's recommendation of life without parole. That is, a Florida jury's "sentence" is

merely a non-binding recommendation. See§ 921.141(2), Fla. Stat. Florida's jury

recommendation is an outlier among the standards elaborated by the controlling norms. Thirty-

two other states have determined that a jury of one's peers, not a single judge, who may be

subject to pressures of retention or election, must decide whether a citizen should be executed by

the state.

Florida's high death sentencing rates, which seem only to climb as other states' rates

decline, demonstrate an arbitrary effect of a system that does not require juror unanimity and

only contemplates a recommendation. Florida has the fourth largest population in the nation.

United States Census Bureau Annual Population Estimates,

http://www. census. gov/popest/data/state/totals/2012/index. htrnl. Yet, Florida has the second

largest number of inmates on death row, or 395. Death Row Roster,

13 Alabama requires that at least I 0 jury members recommend death. Unanimous Death Sentences in Florida?,

http://www. wjhg.com/ho melheadlines/U nanimous-Death-Sentences-in-Fl orida-185585 892.html.

- 27-

113
http://www.dc.state.tz. us/activeinmates/deathrowroster.asp. It has one and a half times the

population of Pennsylvania, but twice the number of death-sentenced individuals.

Florida's percentage of annual death sentences are stunning. In 2012 and 2013, seventy-

nine individuals nationwide were sentenced to death in each year, the second lowest number

since the death penalty was nationally reinstated in 1976. DPIC,

http://www. deathpenaltyinfo. o rgldeath-sentences- united-states-1977-2008. Fourteen of those

in 2013 and twenty of those in 2012 were in Florida. Florida accounted for 18% of nationwide

death sentences in 2013 and 25% in 2012. It is no surprise with these growing numbers and

Florida's outlier structure, Florida has the highest number of death row exonerations in the

country- twenty-three, or 16.5% of the nation's 139 wrongful capital convictions. DPIC,

http://www.deathpenaltyinfo.org/florida-J. Taken together these statistics reveal that an innocent

person charged with first degree murder is significantly more likely to be sentenced to death in

Florida than if that crime was committed in any other death penalty state in the country.

Second, courts consider whether the punishment at bar comports with "the standards

elaborated by controlling precedents and by the Court's own understanding and interpretation of

the Eighth Amendment's text, history, meaning, and purpose." Id. The Supreme Court's

precedent emphasizes that the Eighth Amendment "cannot tolerate the infliction of a sentence of

death under legal systems that permit this unique penalty to be so wantonly and so freakishly

imposed." Furman v. Georgia, 408 U.S. at 310 (Brennan, J., concurring). Florida's death

penalty system is a complete anomaly among the other thirty-three death penalty states.

Because Florida's death penalty system is not in step with the "evolving standards of

decency," the death penalty in this case is cruel and unusual punishment in violation of the

- 28-

114
Eighth Amendment to the United States Constitution and article I, section 17 of the Florida

Constitution.

CONCLUSION

For the foregoing reason the Defendant's sentence of death should be vacated due to

ineffective assistance of counsel.

R BERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex @ramlawyer.com
efiling @ramlawyer .com

ATTORNEY FOR DEFENDANT

COURT APPOINTED

. 29.

115
STATE OF FLORIDA )
)
COUNTY OF 'l':>r ... o~..f'<>.,..:J )

Before me, the undersigned authority, this day personally appeared Gary Michael Hilton

who first being duly sworn, says that he or she is has read the foregoing motion for post-

conviction relief and has personal knowledge of the facts and matters there-in set forth and

alleged and that each and all of these facts and maters are true and correct.

SWORN AND SUBSCRIBED TO before me on this 25th day of November 2014.

NO~~LIJ/:{,
authorized to administer and oath (print,
type or stamp commissioned name or notary
public) ••'''""
,, ....,., BRIAN J. PAUL
*M'
. ~ MY COMMISSION IFF 129579
EXPIRES: June 4, 2018
""~,.eoFf'-rF~~ BondedThru Bui!get Notary Services

Personally known _ _ or produced identification f=t.. \)&~c. :t~ # o • 17'5 "071

- 30-

116
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served, BY

HAND DELIVERY to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, and by ELECTRONIC

MAIL to: Deputy Chief State Attorney Georgia Cappleman at:

SA02 LeonFelony@leoncow1tyfl.gov, State Attorney's Office, Leon County Courthouse, 4th

Floor, 301 S. Monroe Street, Tallahassee, FL, and Capital Appeals Bureau at:

capapp@myfloridalegal.com, Office of the Attorney General, PL-01 The Capitol, Tallahassee,

Florida 32399-1050, and by US MAIL to: Gary Michael Hilton, 7819 N.W. 228th Street

Raiford, Florida 32026-1000 on t h i $ , of November, 2014.

BERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex @ramlawyer.com
efiling@ramlawyer.com

ATTORNEY FOR DEFENDANT

COURT APPOINTED

- 31 -

117
118
 In the Circuit Court of the Second Judicial Circuit of the State
of Florida in and for LEON County FALL Term, 2007

THE STATE OF FLORIDA

vs.

Gary Michael Hilton

INDICTMENT FOR
First Degree Murder, Grand Theft Motor Vehicle
Kidnapping and Grand Theft

A TRUE BILL

m./~
Forepers n of the Grand Jury

This is to ce1iify that the undersigned, as Assistant

State Attorney, as authorized and required by law,
has advised the Grand Jury returning this Indictment.

_/t/~ >/? ~-----

A:<l A:'>SJSJ AN1 STATE ATTORNEY,
SECOND JUDICIAL CIRCUIT OF FLORIDA,
IN AND FOR LEON COUNTY, FLORIDA.
WILLIAM N. MEGGS
STATE ATTORNEY
Prese~ open Co~ by ~he Grand Jury and t1led this
__c£&1 __ ·ay of -----~{l/fAdJ,/I..JTJ=-·-- ___, 2008:
/(~[ 1 ·t·· 1 r•· ·· ('
(~ ~ er< o he ')7}n ;~.w;\ _ .
'· __ Y'~f(
By i\i -' ~l
I
)A x-:;iiA Jj_(· }/ '
~- ·./ i.< tI.'•· '-· A_.a-;r-r..Y,-7
. ------·~.. ·---- -··-····-"'--~~--·-- ----·-
>

Deputy Clerk

119
120
 ....·~ r·:
IN THE CIRCUIT COURT OF THE
0J t' ':;· ·- r; i , :: · §ECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORID ALL::· ·: ··'•·-· 2008CF697

v.
SPN: 197149

GARY MICHAEL IDLTON,

Defendant.
----------------~/
MOTION FOR APPOINTMENT OF PUBLIC DEFENDER

COMES NOW, the Defendant, Gary Michael Hilton, by and through the undersigned

attorney, and requests this Court appoint the Public Defender in the above-numbered case. As

grounds for this Motion, Defendant would show:

I. The Defendant has been indicted for First Degree Murder, Kidnapping, Vehicle

Theft Grand Motor Vehicle and Grand Theft. It is anticipated that the State will

seek the Death Penalty.

2. The Defendant is presently incarcerated in the Georgia Department of Corrections

serving a life sentence for First Degree Murder. Prior to his incarceration, the

Defendant was represented by a Georgia Public Defender because of his

indigency.

3. The Defendant remains indigent and immediately prior to his arrest by the

Georgia officials, the Defendant did not have a residence, was homeless, and was

unemployed. The Defendant has no money and no assets other than an used

automobile seized as evidence in the cause.

WHEREFORE, the Court is respectfully requested to Appoint the Office

ofthe Public Defender for Leon County in this cause. ~

8J
121
 Respectfully submitted,

NANCY A. DANIELS
PUBLIC DEFENDER

Leon County Courthouse

Suite 401
301 South Momoe Street
Tallahassee, Florida 32301
(850) 606-1000

Lu~ Zut~- ,C !.3~

MARIAINESSUBER
Assistant Public Defender
Florida Bar Number 539538

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof was sent to William N. Meggs, State
Attorney, Leon County Courthouse, 301 South Monroe Street, Ste. 475, Tallahassee, Florida
32301, on this 5th , day of March , 2008.

~~k~~
MARIA INES SUBER

-2- 122
123
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA CASE NO. 2008CF697

v.
SPN: 197149
'~

GARY MICHAEL HILTON,

Defendant
----------------~/
ti~g ~
::::.:;~J_
·-in-.....
1
en
:<~f~i
-,,_, 1'1 \J
ORDER OF APPOINTMENT 6n:rJ
g§ ~
w
-;:,.----1
THIS CAUSE coming on to be heard upon the Motion for Appointme'nt ofPubffi:

Defender, it is

ORDERED and ADJUDGED that the Office of the Public Defender for the Second

Judicial Circuit for Leon County, Florida, is appointed to serve as counsel for the Defendant.
The attorney appointed is ordered to file a notice of appearance within I 0 days of this Order, a
copy of which shall be served to the Office of the State Attorney.'i=..
DONE and ORDERED at Tallahassee, Florida this __!2_ day of March, 2008.

CIRCUIT JUDGE

cc: William N. Meggs, State Attorney

Nancy A. Daniels, Public Defender
Maria Ines Suber, Assistant Public Defender
Clerk of the Circuit Court
Defendant

124
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORJDA

STATE OF FLORJDA CASE NO.: 2008CF0697

SPN: 197149
V.

Gary Michael Hilton,

Defendant. . "
: '{
--------------------~/ '•,1
• ! :$
•./'
STATE'S RESPONSE TO
·.. d
MOTION FOR APPOINTMENT OF PUBLIC DEFENDER·'

and

REQUEST TO REVOKE APPOINTMENT

COMES NOW, the State of Florida, by and through the undersigned Assistant State

Attorney, and files this State's Response to the Motion For Appointment of Public

Defender, previously filed in this case, and Request to Revoke Appointment, and says as

follows:

1. The Defendant has been indicted for First Degree Murder, Kidnapping, Grand Theft

Motor Vehicle, and Grand Theft.

2. The Defendant is presently incarcerated in the Georgia Department of Corrections

serving a life sentence for First Degree Murder.

3. The Defendant has not been arrested in this case.

4. There is no allegation in the Motion to Appoint Public Defender that the Defendant

personally has requested that the Public Defender in the Second Judicial Circuit be appointed to

represent him. It appears the motion is simply a request by the Public Defender in Leon County

~~
\:.:_;)
125
to be appointed to the case.

5. There is no evidence that the Defendant has completed an affidavit for determination

of indigent status. There is no copy attached to the Motion to Appoint Public Defender, and

"JIS" does not reflect that said affidavit has been filed with the clerk.

6. A person seeking appointment of a public defender under Section 27.51, Florida

Statutes "must (emphasis added) apply to the clerk of the court for a determination of indigent

status". Section 27.52(1), Florida Statutes.

7. The clerk of the court "shall (emphasis added) determine whether an applicant seeking

appointment of a public defender is indigent based upon the information provided in the

application." Section 27.52(2), Florida Statutes.

8. Pursuant to Section 27.52(3), Florida Statutes, if the "clerk of the court has not made a

determination of indigent status at the time a person requests appointment of a public defender,

the court shall (emphasis added) make a preliminary determination of indigent status, pending

further review by the clerk, and may, by court order, appoint a public defender."

9. Because there is no documented request by the Defendant for the appointment of the

public defender, no determination by the clerk of the court that the Defendant meets the criteria

of indigent status in the State of Florida, and no sworn testimony presented to the Court for a

determination of indigent status, appointment of the public defender is premature.

10. The State of Florida was not contacted prior to the filing of the motion. William N.

Meggs, State Attorney and the prosecutor assigned to the case, was not in the office on the day

the motion was filed and will not return until Monday, March 10, 2008.

11. Although the State of Florida has not yet received a copy, in "JIS" there is a reference

in this case that an Order Appointing the Public Defender was entered.

126
 WHEREFORE, the State respectfully requests the Court revoke its appointment of the

Public Defender for Leon County in this cause until the statutory requirements have been met and

the State of Florida has the opportunity to be heard on its objections.

Respectfully submitted,

WILLIAM N. MEGGS
STATE ATTORNEY

~
Assistant State Attorney
Florida Bar No.: 0019460

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent to Maria
Ines Suber, Office of the Public Defender, Leon County Courthouse, 301 S. Monroe Street,
Tallahassee, Florida, 32301, this 6th day of March, 2008.

ee Fulford
Assis t State Attorney

127
128
 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO.: 2008-CFi(l697

<::~:.•
SPN: 197149 .-··'.
·•
GARY MICHAEL HILTON, .-)

Defendant.
----------------------~/

AMENDED ORDER OF APPOINTMENT ,__ ,_;

THIS CAUSE came before the Court upon "State's Response to Motion for Appointment

of Public Defender and Request to Revoke Appointment," filed on March 6, 2008. The Court

having considered the motion, having reviewed the court record, and being otherwise fully

advised in the premises, makes the following findings:

On February 28, 2008, Defendant was indicted on charges ofFirst-Degree Murder, Grand

Theft Auto, Kidnapping, and Grand Theft. To date, Defendant has not been served with or

arrested on the Florida charges, and is serving a life sentence in Georgia for First-Degree Murder.

On March 5, 2008, the Leon County Public Defender moved to be appointed in this case.

The motion asserted that Defendant was homeless at the time of his arrest in Georgia, was

declared indigent in his Georgia case, and that his financial situation has not improved. No

financial affidavit or application by Defendant was attached or filed at the time. The order of

appointment was signed March 5, 2008.

On March 6, 2008, the State filed a response to the Public Defender's motion for

appointment, arguing that the appointment be revoked because 1) it was not notified and its

- 1-

129
 objections to the appointment were not heard, 2) the motion fails to comply with the statutory

requirements, and 3) Defendant is not entitled to counsel because he has not been arrested or

served.

On March I 0, 2008, Defendant filed an application and affidavit of indigency signed by

him. The application is on the standard form and shows Defendant is indigent.

However, the order of appointment entered by this Court on March 5, 2008, was in error

because the application and affidavit of indigency did not accompany the motion. See Smith v.

State, 699 So. 2d 629, 637 (Fla. 1997). However, the defect has now been cured by Defendant's

filing of the application and affidavit on March 10, 2008.

As to the remaining claims by the State, Section 27.52, Florida Statutes (2007) does not

require that the State be provided notice or an opportunity to be heard on whether or not a

criminal defendant is deemed indigent. No case law interpreting the statute has created such a

requirement. Generally, the appointment of the Public Defender is a proper ex parte procedure.

Representation by the Public Defender is authorized even ministerially upon determination by

the Clerk of Courts under section 27.52(2), Florida Statutes, without a specific signed order by a

judge.

Also, the constitutional right to counsel clearly attached when the indictment was filed.

Arrest, extradition, etc. are not necessary prerequisites to the application and appointment.

Traylor v. State, 596 So. 2d 957, 970 (Fla. 1992)(holding that "a defendant is entitled to counsel

at the ~o·arliest of the following points: when he or she is formally charged with a crime via the

filing of an indictment or information, or as soon as feasible after custodial restraint, or at first

appearance."). See also Kirby v. Illinois, 406 U.S. 682, 689 (1972); Smith, 699 So. 2d at 639;

-2-

130
 Montoya v. Collins, 955 F.2d 279 (5th Cir. 1992).

The Court does not address any issue as to the State's standing to raise these questions.

The Court acknowledges the first order was made in error because the proper application and

affidavit signed by Defendant was not attached to the motion or already filed in this case. Tllis

deficiency is now cured. The Court welcomes the information which revealed this error,

regardless of its source.

Any further hearing shall be on this Amended Order of Appointment, which is currently

set for Thursday, March 13, 2008, unless the State cancels the hearing.

IT IS THEREFORE,

ORDERED AND ADJUDGED that the Office of the Public Defender for the Second

Judicial Circuit for Leon County, Florida is hereby appointed to serve as counsel for the

Defendant.

DONE AND ORDERED on l?Ja--1 cA__; I I ,2oos.

~~
KATHLEEN F. DEKKER
Circuit Judge
Copies to:

Jackie Lee Fulford, ASA

Office of the State Attorney, Leon County Courthouse

Maria Ines Suber, APD

Office of the Public Defender, Leon County Courthouse

Clerk of the Circuit Court

Defendant

-3-

131
f~. £ 132
 IN THE CIRCUIT COURT OF THE SECOND
nJDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA.

STATE OF FLORIDA CASE NO. 2008CF0697

SPN 197149

vs.

Gary Michael Hilton

Defendant(s).

NOTICE OF INTENT TO SEEK THE DEATH PENALTY

To: Gary Michael Hilton, Leon County Jail

Maria Ines Suber, Defense Attorney

YOU ARE HEREBY NOTIFIED that the State of Florida is filing notice pursuant to Rule

3.202, Florida Rules of Criminal Procedure, that it intends to seek imposition of the death penalty

against the defendant in the above-styled cause. Further, pursuant to Rule 3.202, the State makes its

demand for the defendant to give notice of intent to present expert testimony of mental mitigation.

Respectfully submitted,

WILLIAM N. MEGGS
STATE ATTORNEY

Aackie Lee Fulford

/ Ch1ef Ass1stant State Attorney

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to Gary Michael
Hilton, Leon County Jail; Maria Ines Suber, Defense Attorney; and the Honorable Terry Lewis,
Circuit Judge, Leon County Courthouse, this,2-:;;-/'1(ay of July, 2008.

ckie Lee Fulford

Chief Assistant State Attorney
fiLED IN
OPEN COURT
Date: ] \~q \133
&¥
134
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT IN AND
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA CASE NO: 2008 CF 697

vs.
FILED IN
OPEN COURT
GARY MICHAEL HILTON,
Defendant. Date2-15-ll
--------------------~!
VERDICT

We, the jury, find as follows as to Count I of the indictment:

(check only one)

V a. The defendant, Gary Hilton is guilty of First

Degree Murder.

If you choose a., please check one (1) of the

following three (3) options;

VWe find that guilt was established by

proof of premeditation and felony murder.

___ We find that guilt was established by

proof of premeditation only.

____ We find that guilt was established by

proof of felony murder only.

b. The defendant, Gary Hilton, is guilty ofthe

lesser included offense of Murder- Second
Degree.

c. The defendant, Gary Hilton, is guilty ofthe

lesser included offense of Murder- Third
Degree.

135
 State of Florida vs. Gary Michael Hilton
2008 CF 697

d. The defendant, Gary Hilton, is guilty of the

lesser included offense of Manslaughter.

e. The defendant, Gary Hilton, is not guilty.

..;··

We, the jury, find as follows as to Count II of the indictment:

(check only one)

a. The defendant, Gary Hilton is guilty of

Kidnapping.

If you choose a., please check one (I) of the

following three (3) options;

__v<_
We find that guilt was established by
proofof intent to facilitate a felony and to
inflict bodily harm or terrorize.

___ We find that guilt was established by

proof of intent to facilitate a felony only.

---c- We find that guilt was established by

proof of intent to inflict bodily harm or
terrorize only.

b. The defendant, Gary Hilton, is guilty of the

lesser included offense of False Imprisonment.

c. The defendant, Gary Hilton, is not guilty.

We, the jury, find as follows as to Count III of the indictment:

(check only one)

a. The defendant, Gary Hilton is guilty of

Grand Theft Motor Vehicle.

/b. The defendant, Gary Hilton, is not guilty.

2
136
 State of Florida vs. Gary Michael Hilton
2008 CF 697

We, the jury, find as follows as to Count IV of the indictment:

(check only one)

---~- a. The defendant, Gary Hilton is guilty of

Theft involving $300 or more.

b. The defendant, Gary Hilton is guilty of Theft

involving $100 or more but, less than $300.

c. The defendant, Gary Hilton is guilty of Theft

involving Jess than $100.

d. The defendant, Gary Hilton, is not guilty.

SO SAY WE ALL THlS / {i pAY OF FEBRUARY, 2011.

~(!4& L2t~a
~.......---.. /

~~ec
/''-·' 1 ..
I

Presi'ding Juror

Filed in Open Court

Bob Inzer
Clerk of Court

3
137
138
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT IN AND
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA CASE NO: 2008 CF 697

vs. '
FilED IN
Of'EN COURT
GARY MICHAEL HILTON,
Oete C)_:J- )-/ {
Defendant.
_______________________,/

ADVISORY VERDICT

A majority of the jury, by a vote of /;J. ,~ , to 0 advise

and recommend to the court that it impose the death penalty upon Gary
Michael Hilton.
SO SAY WE ALL this 2)-s-fday ofF
)

The jury advises and recommends to the court that it impose a

sentence of life imprisonment upon Gary Michael Hilton without possibility
of parole ..
SO SAY WE ALL this ____ day of February, A.D., 2011.

Presiding Juror

139
&. r\ 140
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697 A

SPN.: 197149
vs.
FILED IN
GARY MICHAEL HILTON, OPEN COURT

Defendant.
Date:~
----------------------~/

SENTENCING ORDER

On February 28, 2008, the Defendant, Gary Michael Hilton, was

indicted for one (I) count of First Degree Murder of Cheryl Dunlap,

occurring between December I, 2007, and December I5, 2007, one (I)

count of Kidnapping, and two (2) counts of Grand Theft. He was tried

before a jury on January 3I, 20 I1, through February 15, 20 II. The jury

found the Defendant guilty of First Degree Murder (both premeditated and

felony murder), Kidnapping (both to facilitate a felony and to terrorize), and

Grand Theft (personal property). The Defendant was found not guilty of

Grand Theft (motor vehicle). On February I7, 20II, the jury reconvened for

the presentation of evidence in support of aggravating and mitigating factors.

On February 21, 2011, the jury recommended by a vote oftwelve to zero

(12-0) that the Defendant be sentenced to death for the murder. On March

141
 31, 2011, the State filed its Memorandum In Support Of Recommendation

Of Jury. Although invited to do so, the Defense did not file a sentencing

memorandum. On April 7, 2011, the Court held a sentencing or Spencer

hearing during which both sides were allowed to present further evidence

and make legal argument. The Defendant declined to make a statement.

Final sentencing was set for April21, 2011.

This Court heard the evidence presented in both the guilt and penalty

phases, had the benefit of the State's legal memoranda and heard argument

in favor of and in opposition to the death penalty. This Court accords great

weight to the recommendation of the jury and reweighs the evidence to

determine whether or not the State proved each aggravating circumstance

beyond a reasonable doubt (See Reynolds v. State, 934 So.2d 1128 (Fla.

2006)) and finds as follows:

AGGRAVATING FACTORS

I. THE DEFENDANT WAS PREVIOUSLY CONVICTED OF

ANOTHER CAPITAL FELONY OR OF A FELONY INVOLVING THE

USE OR THREAT OF VIOLENCE TO THE PERSON.

The evidence presented during the penalty phase establishes that the

Defendant kidnapped Meredith Emerson on January 1, 2008, while Ms.

Emerson was hiking on Blood Mountain in North Georgia. Defendant was

2 142
 arrested at a convenience store by Georgia authorities on January 4, 2008.

Based on defendant's statements it was later determined that Ms. Emerson was

murdered around noon on January 4, 2008. On January 7, 2008, the Defendant

led authorities to Ms. Emerson's body. Ms. Emerson's nude body was covered

by brush, decapitated and had been burned with bleach. Her head was located

in another area. According to defendant's statement on February 4, 2008, he

had kept Ms. Emerson chained by the neck in the van. Defendant further

admitted having sexually battered Ms. Emerson. Defendant admitted that his

purpose in abducting Ms. Emerson was to obtain money from her using her

A1M card. In addition to the Georgia Bureau of Investigation (GBI) agent's

testimony as to having interviewed defendant and being present when he plead

guilty to the charges, the State presented a certified copy of judgment and

sentence as to the murder charge. Although the Georgia murder occurred

after the murder of Ms. Dunlap, the conviction still qualifies under this

aggravator since the plea and sentencing as to that charge occurred prior to

the sentencing for the instant case. Elledge v. State, 346 So.2d 998, 100 I

(Fla. 1977).

The Court fmds this aggravating circumstance to have been established

beyond a reasonable doubt. The Court finds this factor to be particularly

egregious given the similarities with the instant offense, the closeness in time

3 143
 with the instant offense and the Defendant's statement that these murders

were part of a calculated course of conduct to find victims that he had started

in September 2007. This aggravating circumstance is given great weight.

2. THE CAPITAL FELONY WAS COMMITTED WHILE THE

DEFENDANT WAS ENGAGED IN THE COMMISSION OF A

KIDNAPPING.

The evidence during the guilt phase of the trial showed that Cheryl

Dunlap was last seen by witnesses at an area known as Leon Sinks, located in

the Apalachicola National Forest in Leon County, Florida on December 1,

2007. Ms. Dunlap was seen walking on a hiking trail in the park. She had

made plans earlier in the day to meet and have dinner with a friend. She never

made the dinner date and was never heard from again. Her abandoned

vehicle was found that evening on Highway 319. One of the tires had been

punctured. The puncture wound was later linked to the defendant's bayonet.

A masked man fitting the general description of Defendant was observed on

surveillance video withdrawing money from Ms. Dunlap's bank account on

several occasions between December 2, 2007, and December 4, 2007. After

an extensive search, Ms. Dunlap's body was found on December 15, 2007, in

a remote area of the forest several miles from Leon Sinks. Ms. Dunlap's nude

body has been covered by brush. Her head and hands had been removed from

4 144
 her body and were not found at that location. The severely charred remains of a

human head and hands were found in a burn pit at a nearby campsite which

was linked to Defendant by both witness sightings and DNA evidence on a

cigarette butt. Upon Defendant's arrest, Ms. Dunlap's DNA was found on

various items in Defendant's possession. In a statement to a fellow inmate

overheard by a correctional officer at the Leon County Jail, Defendant

indicated that after he took Ms. Dunlap, he kept her alive for "hours or days."

Defendant's statement that he did not kill Ms. Dunlap right away is

corroborated by the medical examiner's estimate that Ms. Dunlap's death

occurred several days after her abduction.

The evidence of kidnapping in the instant case is consistent with the

modus operandi Defendant used in the kidnapping and murder of Meredith

Emerson in Georgia, to wit: holding the victim for several days to terrorize

and/or to ensure he had the correct infonnation to obtain money from the

victim's bank account.

. The murder of Cheryl Dunlap . occurred as a result of and while

Defendant was engaged in the kidnapping of Ms. Dunlap. This is evident

from the jury's verdict whereby Defendant was found guilty of Kidnapping.

Walls v. State, 641 So.2d 381 (Fla. 1994) and Lowenfield v. Phelps, 484

5 145
U.S. 231 (1988). The jury further found that the kidnapping was committed

both to facilitate a felony and to inflict harm on or to terrorize the victim.

In cases where premeditation is not shown and the killing is accidental,

little weight should be given to this aggravator, because but for the felony, the

homicide would not be first degree murder. However, in this case, the jury

specifically found that the murder was both premeditated and felony murder.

Under these circumstances, the independent felony should be given greater

weight.

The Court finds this aggravating circumstance to have been established

beyond a reasonable doubt. The Court accepts the jury's finding as to the

kidnapping and the underlying bases for the kidnapping and the murder. The

Court also independently makes the same fmdings. This aggravating

circumstance is given great weight.

3. THE CAPITAL FELONY WAS COMMITTED FOR THE

PURPOSE OF AVOIDING OR PREVENTING A LAWFUL ARREST OR

EFFECTING AN ESCAPE FROM CUSTODY.

In order to establish this aggravator, "where the victim is not a law

enforcement officer, the State must show beyond a reasonable doubt that the

sole or dominant motive for the murder was the elimination of a witness."

Serranno v. State, 36 FLW S108a (Fla. March 17, 2011). The evidence

6 146
 presented by the State established this to be the case. In the Defendant's own

words, " ... once you've take someone, you either kill them or you get

caught." 1 His actions and words show that killing his victim was part of his

plan to avoid detection and arrest.

Where there is substantial competent evidence to support a finding that

the dominant motive for the murder was to eliminate a potential witness this

aggravating circumstance is applicable. Jacobs v. State, 396 So.2d 1113 (Fla.

1981); Vaught v. State, 410 So.2d 147 (Fla. 1982); Remeta v. State, 522

So.2d 825 (Fla. 1988); Swafford v. State, 533 So.2d 270 (Fla. 1988); and

Wike v. State, 698 So.2d 817 (Fla. 1997) ("Evidence that a victim knew the

Defendant and could later identifY him is sufficient to prove this aggravating

circumstance.").

The Court finds this aggravating circumstance to have been established

beyond a reasonable doubt. This aggravating circumstance is given moderate

weight.

4. THE CRIME FOR WfiiCH THE DEFENDANT IS TO BE

SENTENCED WAS COMMITTED FOR FINANCIAL GAIN.

1
The defense has repeatedly argued that the State cannot use collateral crime evidence to establish an
aggravating circumstance. Although these statements were made to Georgia investigators, the statements
are not evidence of a collateral crime. These statements are direct evidence of the defendant's course of
conduct starting in September 2007, which includes the murder of Ms. Dunlap.

7 147
 In order to establish this aggravating factor, the State must prove

beyond a reasonable doubt that the murder was motivated, at least in part, by

a desire to obtain money, property, or other financial gain. Clark v. State, 609

So.2d 513 (Fla. 1992). This aggravator is supported by Defendant's statements

that during the time leading up to the murder he needed money; and when he

needed money he would go hunting for a victim to rob and kill. The evidence

is clear that Defendant kidnapped Ms. Dunlap with the intent to obtain her

A1M card and PIN number; and ultimately, killed her to avoid arrest for the

kidnapping and theft. The evidence shows that Defendant did use Ms.

Dunlap's card to withdraw $700 from her bank account while he was holding

her against her will. The jury convicted Defendant of Grand Theft for these

actions. The subsequent murder of Ms. Dunlap was part and parcel of

Defendant's modus operandi for theft. Hence, she was murdered to facilitate

the theft. Although the theft was not the primary motive for the murder itself,

this aggravating factor still applies pursuant to Hildwin v. State, 727 So.2d

193 (Fla. 1998). It is not improper doubling for the court to find the

aggravators of felony murder, pecuniary gain and avoid arrest, where the

victim was kidnapped in order to steal her car, which was needed for a get

away vehicle, and the motive for the murder was so the victim could not

identify the defendant. Spann v. State, 857 So.2d 845 (Fla. 2003). Here the

8 148
 victim was kidnapped to facilitate stealing from her bank account and was

murdered to keep her from being able to identify the defendant in the theft

and kidnapping.

The Court finds this aggravating circumstance to have been established

beyond a reasonable doubt. This aggravating circumstance is given some

weight.

5. 1HE CAPITAL FELONY WAS ESPECIALLY HEINOUS,

ATROCIOUS, OR CRUEL.

It should be noted that "[t]he intention of the killer to inflict pain on the

victim is not a necessary element of the aggravator." Guzman v. State, 721 So.2d

1155, 1160 (Fla. 1998). "[T]he HAC aggravator may be applied to torturous

murders where the killer was utterly indifferent to the suffering of another." Id. at

1160. Defendant's indifference to Ms. Dunlap's suffering is best illustrated by the

calm and callous way he describes his method of killing to the Georgia

authorities. It is clear from those statements that he views his victims as nothing

more than prey to be hunted, used to suit his purposes, and then simply

discarded.

The Florida Supreme Court "has held that the actions of the defendant

preceding the actual killing are relevant to this aggravator.... [T]he fear and

emotional strain of the victim from the events preceding the killing may

contribute to its heinous nature [cites and internal quotation marks omitted].

9 149
 Accordingly, the HAC aggravating circumstance has been repeatedly upheld

where the victims were acutely aware of their impending deaths [cites and

internal quotation marks omitted]." Hertz v. State, 803 So.2d 629, 651-652 (Fla.

2001); and Looney v. State, 803 So.2d 656, 680 (Fla. 2001). Great weight

should be given this aggravating circumstance because of the length of time the

victim was bound and because of her cognition of impending death. Swafford

vs. State, supra.; Melendez v. State, 498 So.2d 1258, 1261 (Fla. 1986);

Lightboume v. State, 438 So.2d 380, 391 (Fla. 1983); Vaught v. State, 410

So.2d 147, 151 (Fla. 1982); Lucas v. State, 376 So.2d 1149, 1153 (Fla. 1979);

and James vs. State, 695 So.2d 1229, 1235 (Fla. 1997).

There is no real hard evidence as to exactly when Ms. Dunlap was

fmally murdered. However, there are a number of circumstances that establish

that she was alive for an extended period of time. The medical examiner was

unable to establish a definitive time of death and acknowledged some

uncertainty about the time of death. However, his best estimate was that she

died between December 5, 2007, and December 8, 2007 (This would be four to

seven days in captivity). Defendant was over heard by a correctional officer

telling another inmate that he kept Ms. Dunlap alive for "hours or days." The

"home video" seized from the Defendant's camera dated December 3, 2007,

is in large part very difficult to understand, however, there are audible

comments that suggest that the Defendant just committed the murder and is

10 150
 in the process of hiding the evidence of his crime. Since the Defendant's

motive in kidnapping Ms. Dunlap was to gain access to her bank account

with her ATM card, it is certainly reasonable to believe that he would have

kept her alive long enough to make sure she had given him the correct PIN

number. The bank account was not accessed until December 2, 2007, about

!O:OOp.m.

We also do not know a great deal about under what circumstances she

was held in captivity. However, we do know that she suffered some abuse

during this time. The medical examiner testified to a large, deep bruise to

Ms. Dunlap's back which shows she suffered some type of painful trauma

prior to her being murdered.

Furthermore, where there is some evidence to support an aggravating

factor in the murder for which the Defendant is to be sentenced, the Court

may rely on the circumstances of a collateral crime to support the finding of

an aggravating circumstance when it tends to prove a material fact necessary

to establish an aggravating circumstance. Conde v. State, 860 So.2d 930, 954

(Fla 2003). There was evidence of a collateral crime introduced in the

penalty phase. Defendant's statements to the Georgia authorities regarding

the abduction and murder of Meredith Emerson tends to prove that

Defendant adheres to a particular modus operandi when he "hunts", kidnaps,

11 151
 and murders his victims. It is reasonable to believe that Ms. Dunlap and

. Ms. Emerson were treated similarly by the Defendant.

Taking all of this into consideration, it is clear Ms. Dunlap endured

great fear and emotional strain for an extended period of time before the

Defendant decided to murder her. This emotional strain must be considered

in determining the presence of the HAC aggravator. Clark v. State, 443

So.2d 973 (Fla. 1983), Cook v. State, 542 So.2d 964 (Fla. 1989), Preston v.

State, 607 So.2d 404 (Fla. 1992).

The Court fmds this aggravating circumstance to have been established

beyond a reasonable doubt. This aggravating circumstance is given great

weight.

6. THE CAPITAL FELONY WAS COMMITTED IN A COLD,

CALCULATED, AND PREMEDITATED MANNER WITHOUT ANY

PRETENSE OF MORAL OR LEGAL JUSTIFICATION.

This aggravating factor focuses on Defendant's state of mind. This

aggravator requires proof beyond a reasonable doubt that the killing was the

product of cool and calm reflection involving a careful plan or prearranged

design to commit murder. The Defendant must have exhibited a heightened

premeditation without pretense of moral or legal justification. Jackson v.

State, 648 So.2d 85(Fla. 1994).

12 152
 This aggravator was clearly established by the State. Nothing

illustrates this better than the Defendant's own statements. Those

statements, taken in their totality, illustrate an extraordinary amount of cool

and calm reflection. His approach to these crimes was very matter of fact. He

needed money, so he had to go hunting. He needed to avoid arrest, so he had

to kill. There was no anger, panic, or emotion associated with his actions. And,

the manner in which Defendant dismembered and disposed of the body

further evidence that Defendant's actions were a product of calm reflection.

Defendant had a prearranged plan to commit the murder of Cheryl

Dunlap. This is evidenced by several facts in evidence. Cheryl Dunlap was a

stranger to Defendant. He "hunted" her. He had tools of his trade in the

ready; including zip ties, duct tape, chains, and BB guns. He fashioned a

homemade mask to disguise himself at the A TM machine. He took the

victim to a remote location(s) which he had thoroughly scouted beforehand.

He dismembered the body and burned the head and hands to prevent

identification and collection of forensic evidence. In short, he did many things

which would have required a methodical period of planning and reflection

prior to this murder showing a "heightened premeditation." Preston v. State,

444 So.2d 939 (Fla. 1984).

13 153
 In Swafford v. State, 533 So.2d 270 (Fla. 1988), the court stated: "The

cold, calculated, premeditated murder, committed without pretense of legal

or moral justification, can also be indicated by circumstances showing facts

such as advance procurement of a weapon, lack of resistance or provocation,

and the appearance of a killing carried out as a matter of course." 533 So.2d

at 277. The murder of Cheryl Dunlap was a senseless act for which no moral

or legal justification of any kind has been offered to this Court. The

circumstances and evidence show that this murder was calmly planned and

executed, and that it was in no way provoked by Ms. Dunlap.

The Court finds this aggravating circumstance to have been established

beyond a reasonable doubt. This aggravating circumstance is given great

weight.

MITIGATING FACTORS

The jury was instructed as to three mitigating factors, which are as

follows:

1. THE CAP ACITY OF THE DEFENDANT TO APPRECIATE

THE CRIMINALITY OF HIS CONDUCT OR TO CONFORM HIS

CONDUCT TO THE REQUIREMENTS OF THE LAW WAS

SUBSTANTIALLY IMP AIRED.

14 154
 The defense presented the testimony of Dr. Charles Golden, a board

certified psychologist, and Dr. Abbey Strauss, a psychiatrist, who both

opined that Defendant's ability to conform his conduct to the law was

substantially impaired. The state presented the testimony of Dr. Gregory

Prichard, a psychologist, who opined to the contrary. The Court finds that

Dr. Prichard's testimony was more credible and more consistent with the

other evidence in the case as to this point. The Court finds that this factor in

mitigation was not proven.

2. THE CAPITAL FELONY WAS COA1MITTED WHILE THE

DEFENDANT WAS UNDER THE INFLUENCE OF EXTREME

EMOTIONAL OR PSYCHOLOGICAL DISTURBANCE.

Doctors Golden and Strauss also both opined that this mitigating

circumstance was present. Dr. Strauss diagnosed Defendant as suffering from an

antisocial personality disorder and a schizoaffective disorder. He says that given

Defendant's "baseline" with these disorders, the use of Ritalin "triggered" the

murders in this 'case. Dr. Golden never made a very specific diagnosis of

Defendant, but did opine that the combination of brain damage (Dr. Joseph Wu),

"disorders" and the drug usage (William Norton) caused Defendant to have a lack

of emotional control resulting in the murders. Dr. Prichard was never specifically

asked his opinion as to this mitigator, but the essence of his testimony was that

15 155
 the only thing wrong with Defendant was that he suffered from a personality

disorder, was a psychopath and chose to break the law because that was what

suited Mr. Hilton. The Court does not feel it necessary to enter into an

intellectual debate as to whether a personality disorder is the type of "emotional

or psychological disturbance" envisioned by this statutory mitigator. The Court

does accept Dr. Prichard's testimony that defendant did not suffer from a major

mental illness. Therefore, defendant's acts were volitional. However, some

extreme emotional disturbance certainly had to be at play for the defendant to

commit these horrendous acts. The Court does not accept the defense's "Ritalin

did it" theory. Five different statements by the defendant have been presented in

evidence from January 7, 2008, through August 28, 2008. The defendant was not

on Ritalin at the time of any of these statements. In each of these statements the

Defendant displays a callous disregard for human life. As recently as August 28,

2008, more that nine moths after this murder and after at least eight months

without Ritalin, the Defendant indicated that he was only sorry that he got caught

and would murder again. The Court finds that this mitigating circumstance has

been proven and give it some weight.

3. THE EXISTENCE OF ANY OTHER FACTORS OF THE

DEFENDANT'S CHARACTER, BACKGROUND, OR LIFE, OR THE

16 156
CIRCUMSTANCES OF THE OFFENSE THAT WOULD MITIGATE

AGAINST THE IMPOSITION OF THE DEATH PENALTY.

The defense has asserted a number of non-statutory mitigating

circumstances which have been individually considered by the Court. The

Court will title them as presented by the defense. However, this is not a

factual determination that the factor as alleged has in fact been proven.

a. Mr. Hilton grew up in an emotionally abusive and neglectful

home.

There was certainly testimony presented that showed that

Defendant did not grow up in an ideal household. However,

there was no showing that he was the victim of any extreme

abuse or neglect. Accordingly, the Court gives some weight to

this mitigating circumstance.

b. Mr. Hilton abused substances.

Defendant did abuse drugs including Ritalin over a long period

of time. It is not as clear whether defendant was abusing drugs

at the time of this incident. There is no direct evidence that he

was. Accordingly, the Court gives some weight to this

mitigating circumstance.

17 157
c. Mr. Hilton was deprived of a relationship with his biological

father.

This mitigating circumstance was proven. Accordingly, the

Court gives moderate weight to this mitigating circumstance.

d. Mr. Hilton is already serving a Life Sentence and society 1s

adequately protected.

This mitigating circumstance was proven. Accordingly, the

Court gives some weight to this mitigating circumstance.

e. Mr. Hilton served his country through military service.

The Defense established that Defendant entered the Army on

February I 0, 1964 and was honorably discharged on December

2, 1965. He reenlisted on December 3, 1965 and was

discharged on July14, 1967. Normally, military service 1s a

mitigating circumstance. However, the second discharge was

for unsuitability with honorable conditions. Based on the

testimony presented, Defendant was discharged because of

undesirable character traits. This factor detracts from its

mitigating character. Defendant's statements about the military

also diminish the strength of this mitigating circumstance.

Defendant repeatedly justifies his actions based upon his

18 158
 military training. He stated in June 2008 that his military

training let him "disassociate the act of killing from the

restraints society is imposing on killing." This is an insult to

the thousands of law abiding military veterans in our country.

Accordingly, the Court gives very little weight to this

mitigating circumstance.

f. Mr. Hilton suffered maternal deprivation and lack of bonding

between mother and child.

It was established that Defendant's mother found herself in a

difficult conflict between her son (defendant) and his step-

father (husband). Initially, she decided to stay with her

husband and let Defendant stay with a friend from work. This

mitigating circumstance was proven. Accordingly, the Court

gives some weight to this mitigating circumstance.

g. Mr. Hilton was removed from his home into foster care as an

adolescent.

Thomas Perchoux indicated that Defendant came to live with

him and his wife in 1960- 1961. Although it was never clearly

articulated, apparently, this was after Defendant shot his step-

father. As noted above (f.), the Defendant's mother initially

19 159
 chose to support her husband. Mr. Perchoux appeared to be a

nice man, who took a genuine interest in defendant. The

Defendant's mother later changed her mind; took the Defendant

back in and left her husband. This mitigating circumstance was

proven. Accordingly, the Court gives some weight to this

mitigating circumstance.

h. Mr. Hilton grew up in a financially poor family.

Perhaps this circumstance could be implied by the fact that

Defendant's family moved quite a bit, the Court declines to

make that assumption. The testimony was that Ms. Cleo Debag

(mother) was a valued employee in the company where she

worked. This mitigating circumstance was not reasonably

proven.

1. Mr. Hilton suffered a traumatic brain injury as a child.

The defense expert, Dr. Wu, testified that Defendant's brain

scan was consistent with someone who had a traumatic brain

injury. This testimony is unrebutted. In terms of significance,

the real issue is what significance this had as to Defendant's

conduct in 2007. The Court finds that it has not been proven

that this prior injury significantly impacted Defendant's

20 160
 criminal conduct in this case. Accordingly, the Court gives

some weight to this mitigating circumstance.

J. Mr. Hilton suffers from severe mental defects.

The Court does not find that this mitigating circumstance has

been reasonably proven. The Court accepts that Defendant,

along with a large majority of our prison population, is properly

diagnosed as having an antisocial personality disorder. This is

not a "severe mental defect." Defendant has a full scale IQ of

120; he is articulate; and he is a skilled manipulator. As he

repeatedly indicated, he has a "rage" against society. Cheryl

Dunlap became the focus of that rage, because he wanted her

money. Cheryl Dunlap was simply a means to achieve his

desires; she was simply an object to him. Although all of this is

unacceptable in a free society, none of it proves that he suffers

from a "severe mental defect." This mitigating circumstance

was not reasonably proven.

CONCLUSION

The Court has very carefully considered and weighed the aggravating

and mitigating circumstances found to exist in this case, being ever mindful

that human life- is at stake. The Court finds beyond a reasonable doubt, as

21 161
 did the jury by a twelve to zero ( 12-0) recommendation, that the aggravating

circumstances outweigh the mitigating circumstances in this case.

Accordingly, it is

ORDERED and ADJUDGED that the Defendant, GARY

MICHAEL HILTON, is hereby sentenced to death for the murder of Cheryl

Dunlap.

The Defendant is hereby committed to the custody of the Department

of Corrections of the State of Florida for execution of this sentence as

provided by law.

FURTHERMORE, as to Count II of the Indictment, kidnapping, I

HEREBY adjudicate Defendant guilty and sentence him to life

imprisonment.

AS to Count III of the Indictment, grand theft motor vehicle, based on

the jury's verdict I HEREBY adjudicate Defendant not guilty.

AS to Count IV of the Indictment, grand theft, I HEREBY adjudicate

Defendant guilty and sentence him to five (5) years imprisonment.

All prison sentences are to run consecutively to each other and

consecutively as to any other existing sentences.

22 162
 Defendant is given credit for all jail time served in this case on Count

II of the Indictment (kidnapping) along with the statutorily required court

costs and fees which will be reduced to a civil judgment.

The Defendant is hereby notified that he has thirty (30) days to file an

appeal to this judgment and sentence and that this sentence is subject to

automatic review by the Florida Supreme Court.

May God have mercy on the Defendant's soul.

DONE and ORDERED Tallahassee, Leon County, Florida this 21st

day of April, 2011.

=~ ~ 7 0 /J I A (} c::
. t LZ_'--::::2..- C . WJCL(e._j:'(--0L4.8?L~
JAMES C. HANKINSON
Circuit Judge

cc:
William N. Meggs, State Attorney
Georgia Cappleman, Assistant State Attorney
Nancy A. Daniels, Public Defender
Maria Ines Suber, Assistant Public Defender
Robert Friedman, Assistant Public Defender

23 163
164
In the Circuit Court, Secoud Judicial Circuit,
in and for Leon Connty, Florida fileD IN
O"'EN COURT
vision: Felony Recorded in the Official..Records
Oat<a: 4--.91 -II
State of Florida of Leon Coumy
v.

GARY M. HILTON
Defendant --~Probation Retrial
___Community Control Violator _ _Resentence

, being personally before this court

, attorney of record, and the state
, and having
ollowing crime( s)

Count Crime Offense s:~~te Degree Case Number OBTSNumber

Numbers of Crime
l I ~~ Y'?-,f-UP011ree \r'(\LtV'f'lr:,v- I7~"J .ol{ Iu I C:uo. rei. OtCF6/V7A
{)., ~· ~
dnccnn' •"'"' 7'1!7. o I f'. 1-PRL DR"CF!oCf1A
i-t ~•.'tY-v::J~e.f-t- I'XL9.·0tt+ ~C.i 1-.3 In? CF w9 7 A

t/ and no cause being shown why the defendant should not be adjudicated guilty, IT IS ORDERED that the
defendant is hereby ADJUDICATED GUILTY as to all counts or as to count(s) - - - - - - - - - -

V and being a qualified offender pursuant to s. 943.325, the defendant shall be required to submit DNA samples
as required by law.

and good cause being shown; IT IS ORDERED that ADJUDICATION OF GUILT BE WITJlliELD as to all
counts or as to count(s) - - - - - - - - - -

Page _ _
\ of \\ Rev. 06/01/2010

165
 State of Florida

GARY M. HILTON
Defendant

Date of Birth,_ _ _ _ _ _ _ _ __ Case Number 2008 CF 697 A

Address:
Social Security Number_ _ _ _ _ _ _ _ _ _ _ _ _ __

FINGERPRINTS OF DEFENDANT

5.

I 0. Left Little
.,,_

Fi"""""'"'"'""by'~~; Ma>/~,,
I CERTIFY that these are the fingerprints of the defendant, GARY M. HILTON, and that they were placed
hereon by the defendant in my presence in open court this date.

DONE AND ORDERED in open court in Leon County, Fl~a, on af2!41 d}_f ! d- 0 (/ .

\f)-\~H~ {! _\]1[Jyv\}_<J_J:--
) Judge.
J

Page~of \ l Rev. 06/0112010

166
 Defendant GARY M. HILTOI\ Case Number~. - CF 697 A

(As to Count )

The defendant, being personally before this court, accompanied by the defendant's attorney of record,
L)YY\QJ'::du <l.. , <J, 1 tJ/.!:-u-L ,
and having been given an opportunity to be heard and to offer matters in
mitigation of sentence, and to show cause why the defendant should not be sentenced as provided by law; and no cause
being shown

(Check one if applicable)

_ _ the Court places the defendant on probation I community control for a period of months I years
under the supervision of the Dept. of Corrections, the conditions of which are set forth in a separate order.
_ _ the Court having previously on deferred imposition of sentence until this date.
_ _ the Court having previously entered a judgment in this case on now
resentences the defendant
_ _ the Court having placed the defendant on probation I community control and having subsequently revoked
the defendant's probation/community control.

It Is The Sentence Of The Court that:

_ _ The defendant pay a fine of$ , pursuant to section 775.083, F.S., plus$ as the
5% surcharge required by section 938.04, F.S
V The defendant is committed to the custody of the Department of Corrections.
_ _ The defendant is directed to the custody of the Sheriff of County, Florida.
_ _ The defendant is sentenced as a youthful offender in accordance with section 958.04, F.S ..

To Be Imprisoned (Check one; unmarked sections are inapplicable):

VDeath
___For a term of natural life.
For a term of months I years.
Said SENTENCE SUSPENDED for a period of _ _ _ _ _ _ _ _ _ _ _ _ _ subject to the
conditions set forth in this order.

If "split" sentence, complete the appropriate paragraph.

·_ _ Followed by a period of on probation/community control under the

supervision of the Department of Corrections according to the terms and conditions set forth in a separate
order entered herein.
_ _ However, after serving a period of imprisonment in
- - - - - - - - - ' t h e balance of the sentence shall be suspended and the defendant be placed on
probation/community control for a period of under supervision
of the Department of Corrections according to the terms and conditions of probation/community control
set forth in a separate order entered herein.

In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before
the defendant begins service of the supervision terms.

Page _3_ of \ \ Rev. 06/01/2010

167
 Defendant GARY M. HILTOJ Case Number_ >!! CF 697 A

OBTSNumber

(As to Count ~ )

The defendan~, being pe~fonally before this court, accompanied by the defendant's attorney of record,
YO'lCVu CL J . 0u...Curt , and having been given an opportunity to be heard and to offer matters in
mitigation of sentence, and to show cause why the defendant should not be sentenced as provided by law; and no cause
being shown

(Check one if applicable)

_ _ the Court places the defendant on probation I community control for a period of months I years
under the supervision of the Dept. of Corrections, the conditions of which are set forth in a separate order.
_ _ the Court having previously on deferred imposition of sentence until this date.
_ _ the Court having previously entered a judgment in this case on now
resentences the defendant
_ _ the Court having placed the defendant on probation I community control and having subsequently revoked
the defendant's probation/community control.

It Is The Sentence Of The Court that:

_ _ The defendant pay a fine of$ , pursuant to section 775.083, F.S., plus$ as the
5% surcharge required by section 938.04, F.S
~The defendant is committed to the custody of the Department of Corrections.
The defendant is directed to the custody of the Sheriff of County, Florida.
_ _ The defendant is sentenced as a youthful offender in accordance with section 958.04, F.S ..

To Be Imprisoned (Check one; unmarked sections are inapplicable):

Death
--v-For a term of natural life.
For a term of months I years.
_ _ Said SENTENCE SUSPENDED for a period of _ _ _ _ _ _ _ _ _ _ _ _ _ subject to the
conditions set forth in this order.

If "split" sentence, complete the appropriate paragraph.

_ _ Followed by a period of on probation/community control under the

supervision of the Department of Corrections according to the tenus and conditions set forth in a separate
order entered herein.
_ _ However, after serving a period of imprisonment in
--,---:------:--''the balance of the sentence shall be suspended and the defendant be placed on
probation/community control for a period of under supervision
of the Department of Corrections according to the tenus and conditions of probation/community control
set forth in a separate order entered herein.

In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before
the defendant begins service of the supervision tenus.

Page l\ of_~~~- Rev. 06/01/2010

168
 Defendant GARY M. HILTOJ'I Case Number_;._ n CF 697 A

OBTS Number

The defendant, being personally before this court, accompanied by the defendant's attorney of record,
'--·YY\Ci1J\..{c_,__ '<]) . >A<..tl.<-U·c_ , and having been given an opportunity to be heard and to offer matters in
mitigation of sentence, and to show cause why the defendant should not be sentenced as provided by law; and no cause
being shown

(Check one if applicable)

_ _ the Court places the defendant on probation I community control for a period of months I years
under the supervision of the Dept of Corrections, the conditions of which are set forth in a separate order.
_ _ the Court having previously on deferred imposition of sentence until this date.
_ _ the Court having previously entered a judgment in this case on now
resentences the defendant
_ _ the Court having placed the defendant on probation I community control and having subsequently revoked
the defendant's probation/community controL

It Is The Sentence Of The Court that:

_ _ The defendant pay a fine of , pursuant to section 775.083, F.S., plus$ as the
5% surcharge required by section 93 8.04, F .S
~The defendant is committed to the custody of the Department of Corrections.
_ _ The defendant is directed to the custody of the Sheriff of County, Florida.
_ _ The defendant is sentenced as a youthful offender in accordance with section 958.04, F.S ..

To Be Imprisoned (Check one; unmarked sections are inapplicable):

Death
--~For a term of natural life. .
5
1.--·--For a term of _ _ _ _ _ _--:c-='-----.,.--:---c'-·~
Said SENTENCE SUSPENDED for a period of _ _ _ _ _ _ _ _ _ _ _ _ _ subject to the
conditions set forth in this order.

If "split" sentence, complete the appropriate paragraph.

_ _ Followed by a period of on probation/community control under the

supervision of the Department of Corrections according to the terms and conditions set forth in a separate
order entered herein.
_ _ However, after serving a period of imprisonment in
-..,---,---.,.---,,..--' the balance of the sentence shall be suspended and the defendant be placed on
probation/community control for a period of under supervision
of the Department of Corrections according to the terms and conditions of probation/community control
set forth in a separate order entered herein.

In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before
the defendant begins service ofthe supervision terms.

Page ____S_ of )\ Rev. 06/0112010

169
 Defendant GARY M. HILTON Case Number 08 CF 697 A

SPECIAL PROVISIONS
(As to Count I J !)_ 1j )
By appropriate notation, the following provisions apply to the sentence imposed in Ibis count:

Firearm It is further ordered that the minimum imprisonment

provision of section 775.087, F.S., is hereby imposed for the sentence specified
in this count.

Drug Trafficking It is further ordered that the ears mandatory minimum

imprisonment provision of section 893.135(1), F.S., and fme in the amount of
• - - - - - - - - - - ' ' hereby imposed in this count.

Controlled Substance w/in It is further ordered that the 3-year minimum imprisonment provision
1,000' of School, Public Park, pursuant to 893.13(1 )(c), F.S., is hereby imposed for the sentence
Comm.Center or Rec. Facility specified in this count.

Habitual Felony Offender The defendant is adjudicated a habitual felony offender and has been sentenced
to an extended term in accordance with the provisions of section 775.084(4)(a),
F.S .. The requisite fmdings by the court are set forth in a separate order or stated
on the record in open court.

Controlled Substance, It is further ordered that the minimum mandatory provision

Manufacture of Metharn- of section 893.13(1 )(g), F.S. is hereby imposed for the sentence specified in
Dhetamine/Phencyclidine this count.

Habitual Violent The defendant is adjudicated a habitual violent felony offender and has been
Felony Offender sentenced to an extended term in accordance with the provisions of section
775.084(4)(b), F.S .. A minimum term of year(s) must be
served prior to release. The requisite fmdings of the court are set forth in a
separate order or stated on the record in open court.

Prison Releasee Reoffender The defendant is adjudicated a prison releasee reoffender and has been
sentenced to serve 100 percent of the court-imposed sentence in accordance with
section 775.082(8)(b).

Law Enforcement It is further ordered that the defendant shall serve a minimum of
Protection Act years before release in accordance with section 775.0823, F.S ..

Capital Offense It is further ordered that the defendant shall be ineligible for Parole in
accordance with the provisions of section 775.082(1), F.S ..

Short-Barreled Rifle, It is further ordered that the 5-year minimum provision of section
Shotgun, Machine Gun 790.221(2), F.S., is hereby imposed for the sentence specified in this count.

Continuing Criminal Enterprise It is further ordered that the 25-year minimum sentence provision of section
893.20, F.S., is hereby imposed for the sentence specified in this count.

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170
 Defendant GARY M. HILTON Case Number 2008 CF 697 A

Dangerous Sexual Felony It is further ordered that the minimum imprisonment provision of section
Offender 794,01 15{2)(e), F.S. is hereby imposed for the sentence specified in this count.
The defendant shall be imprisoned for a minimum of years; or,
_ _ _ _ for a term of life.

Personal ID Information It is further ordered that the minimum mandatory provision

of section 817.568 F.S., is h;;eby imp~-;ed for the sentence specified in this
count.

Taking a Law Enforcement It is further ordered that the 3-year mandatory minimum imprisonment
Officer's Firearm provision of section 775.0875(1), F.S., is hereby imposed for the sentence
specified in this count.

Sexual Offender/Sexual Predator Determinations:

Sexual Predator The defendant is adjudicated a sexual predator as set forth in section 775.21,
F.S.

Sexual Offender The defendant meets the criteria for a sexual offender as set forth in section
943.o435(l)(a)la, b, c, or d.

Age of Victim The victim was _ _ years of age at the time of the offense.

Age of Defendant The defendant was _ _ years of age at the time of the offense.

,]ationship to Victim The defendant is not the victim's parent or guardian.

Sexual Activity [F.S.800.04(4)] The offense _ _ did _ _ did not involve sexual activity.

Use of force or Coercion The sexual activity described herein _ _ did _ _ did not involve the use of
[F.S.800.04(4)] force or coercion.

Use ofForce or Coercion The molestation _ _ did _ _ did not involve unclothed genitals or
Unclothed Genitals [F.S. 800.04(5) ............ .. genital area.

The molestation did did not involve the use of force or coercion.

Other Provisions
(e.g., see Ch. 775, F.S.)

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171
Defendant GARY M. IDLTON Case Number~ '- CF 697 A

i)
"ther Provisions as to connt(s)_ __:cA.:._:._ _.

Retention of Jurisdiction The court retains jurisdiction over the defendant pursuant to section
947.16(4), F.S. (2002).

Jail Credit It is further ordered that the defendant shall be allowed a total of
\ 1 0 50 days as credit for time incarcerated before imposition of
this sentence.

CREDIT FOR TIME SERVED IN RESENTENCING AFTER

VIOLATION OF PROBATION OR COMMUNITY CONTROL

(Check as applicable)

IT IS FURTHER ORDERED that the defendant be allowed days time served

between date of arrest as a violator following release from prison to the date of resentencing. The
Department of Corrections shall apply original jail time credit and shall compute and apply credit for
time served and unforfeited gain time previously awarded on count(s) - - - - - - - - - - -
(Offenses committed before October 1, 1989).

*************************************************************************************

IT IS FURTHER ORDERED that the defendant be allowed days time served

between date of arrest as a violator following release from prison to the date of resentencing. The
Department of Corrections shall apply original jail time credit and shall compute and apply credit for
time served on count(s)
{Offenses committed b~etw=ec-e.,.-n'O"c"'t-ob•ec-r-:1;:-,-.1"9"'89~a-=n'd"December 31, 1993).

*************************************************************************************
The Court deems the unforfeited gain time previously awarded on the above case/count
forfeited under section 948.06(7).

The Conrt allows unforfeited gain time previously awarded in this case/count. (Gain
time may be subject to forfeiture by the Department of Corrections under section
944.28(1) ).

-,-,--...,-IT IS FURTHER ORDERED that the defendant be allowed days time served between
date of arrest as a violator following release from prison to the date of resentencing. The Department of
Corrections shall apply original jail time credit and shall compute and apply credit for time served only
pursuant to section 921.0017, Florida Statutes, on count(s) -='"""'==-------
(Offenses committed between January 1, 1994 and May 29, 1997).

*************************************************************************************

-,-,--...,-IT IS FURTHER ORDERED that the defendant be allowed days time served between
date of arrest as a violator following release from prison to the date of resentencing. The Department of
Corrections shall apply original jail time credit and shall compute and apply credit for time served only
pursuant to section 921.0017, Florida Statutes on count(s) ·
{Offenses committed after May 30, 1997).

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172
Defendant GARY M. KaTON Case Number 200!. . ~ '197 A

'-'onsecutive/Concurrent
as to Other Counts It is further ordered that the sen_\l}nce imposed as to count( s) d +t-f
shall run (check one) V consecutive to ~---concurrent
with the sentence set forth in count of this case.

Consecutive/Concurrent
as to Other Convictions It is further ordered that the composite term of all sentences imposed for
the counts specified in this order shall run (check one)
V consecutive to concurrent with the following

(check one) ~any active sentence being served

_ _ _ specific s e n t e n c e s - - - - - - - - - - - - - - - -

In the event the above sentence is to the Department of Corrections, the Sheriff of Leon County,
Florida, is hereby ordered and directed to deliver the defendant to the Department of Corrections at the facility designated
· ., the Department together with a copy of this judgment and sentence and any other documents specified by Florida
.atutes.

The defendant in open court was advised of the right to appeal from this sentence by tiling notice of appeal
within 30 days from this date with the clerk of this court and the defendant's right to the assistance of counsel in taking
the appeal at the expense of the State on showing ofindigency.

In imposing the above sentence, the court further recommends._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Page ~ of---'-\\_._ Rev. 06/0 1120 I 0

173
 Defend~nt GARY M. HILTON Case Number-"-"-~ CF 697 A

IS THE JUDGMENT AND ORDER OF THE COURT THAT DEFENDANT IS LIABLE FOR AND SHALL PAY THE FOLLOWING:
I. $ as a fine pursuant to §775.083, F.S.

2. $_ _ _ _ _ _ _ _.as the 5% surcharge required by §938.04, F.S ..

3. $20.00 as a court cost pursuant to §938.06, F.S. (Crime Stopper Trust Fuod).
4. $3.00 as a court cost pursuant to §~38.01(1) F.S. (Criminal Justice Trust Fuod).
5. $50.00 pursuant to §93 8.03, F .S. (Crimes Compensation Trust Fuod).
6. ~I $69::llflim:isd.) pursuant to §938.05, F.S. (Local Government Criminal Justice Trust Fuod).
7. $2.00 as a court cost pursuant to § 93 8, 15, F.S. (County Criminal Justice Education).
8. $2.00 as a court cost pursuant to §938.15, F.S. (City Criminal Justice Education).
9. ~)/ ~0-fmisd.) as a court cost pursuant to §775.083(2) F.S. (Couoty Crime Prevention).
10. $65.00 as a court cost pursuant to § 939.185, F.S. (Couoty Additional Court Cost).
II. $3.00 as a court costs pursuant to § 938.19 F.S. (Teen Court Assessment).
12. ~50.00 as an application fee pursuant to §27.52(1)(b), F.S. (Indigent Criminal Defense Trust Fuod) if the Defendant
applied for a Public Defender and the fee has not been paid in full. The first $50.00 collected by the clerk shall be applied
toward satisfaction of this fee.
13. D If checked, the Defendant shall pay $135.00 as costs pursuant to §938.07, F.S. (Driving or Boating Under The Influence).
14. D If checked, the Defendant shall pay $15.00 as costs pursuant to §938.13, F.S. (Misd. Drug Alcohol Assessment)

J. If checked, the defendant shall pay the following as additional statutorily mandated surcharges:
D $201.00 as a surcharge and condition of supervision pursuant to §938.08, F.S. (Domestic Violence Trust Fuod).
D $151.00 as a surcharge and condition of supervision pursuant to §938.085, F.S. (Rape Crisis Program Trust Fund).
D $151.00 as costs pursuant to §938.10, F.S. (Children & Family Services Child Advocacy Trust Fuod).

16. $100.00 (mandatory), or the higher of documented costs of$ for prosecution pursuant to §93 8.27(8), F.S.,
pay'J]:>Ie to the Leon Couoty Clerk's Office. To be paid pursuant to the terms of the Clerk's collection program; or if checked,
Cir'iieduced to a Civil Judgment.

17. ifrF CHECKED, $100.00 (mandatory) or the higher costs of$ ; for indigent legal assistance pursuant to
§938.29(1), F.S. To be paid within days or if checked ilYl.'ieduced to a Civil Judgment.

D IF CHECKED, THE DEFENDANT IS ORDERED TO PAY THE FOLLOWING DISCRETIONARY COSTS:

18. $ as additional fme pursuantto §775.0835(1), F.S .. (Optional Fine for the Crimes Compensation Trust Fund).
19. D $100.00 FDLE Operating Trust Fuod fee, pursuant to §943.25. or if checked D Reduced to a Civil Judgment.
20. D If checked, the Defendant shall pay $7.00 as costs pursuant to §318. 18(14) F.S. (Replacement of Fine Revenue Fuod)
M'i5llii~~i&;cb.liBtil'ts:J:~''vi9tilf;l\iJ~i9~1y5i
21. D If checked, the Defendant shall pay $30.00 as costs pursuant to §318. 18(13)(a) (Court Facilities Fuod)
22. D If checked, the Defendant shall pay $3.00 as costs pursuant to §3 I 8.18(1 7) (State Law Enforcement Radio System)
23. D A sum of$ for the costs of collecting the DNA sample required by s. 943.325, Florida Statutes.
D If checked discretionary fines are reduced to Judgment, for which let execution issue.
001
$ (p '10. TOTAL Fine, if any, and Statutorily Mandated Costs, Fees and Surcharges
$ Lfdo • '!£ Court Costs Reduced to Civil Judgment $ bO · "!!?.. Application Fee Reduced to Civil Judgment
$ Court Costs/Fines Deferred $ Fine Reduced to Civil Judgment

Page \Oof - - '\\

-'- Rev. 06/01/20 I 0

174
 Defendant GARY M. HILTON Case Number 2008 CF 697 A

1' IS FURTHER ORDERED AS FOLLOWS:

The defendant is ordered to pay the court ordered fine, court costs, fees and surcharges imposed in this case.
Payment is due in full today .ru:_make payments of a minimum of$75.00 per month. A $25.00 administrative fee will be
added to the balance. If you are in custody on this charge, your first payment will be due 30 days from the date of your
release. ·

Failure to comply with your payment schedule will result in the suspension of your driver's license pursuant to
FS 322.245 and issuance of an Order to Show Cause requiring your appearance in court. Failure to appear in court will
result in a Writ of Attachment (warrant) being issued for your arrest.

The defendant must immediately notify the Clerk of Court, in writing, of any change in the defendant's
maJing_address.

All fines, costs, fees and surcharges must be paid in cash or by money order, travelers check, personal check or
credit card payable to: Clerk of Court, Leon County Courthouse.

Page ---lJ_ of _ _,_\\_._ Rev. 06/01/2010

175
 Name: Gary M. Hilton
Case No.: 2008 CF 697 A

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the judgment/disposition order
rendered on April21, 2011, has been hand delivered to counsel for the State XX.
Defendant XX. Public Defender's Office at 4th Floor, Leon County Courthouse on this
21" day of April, 2011.

BOB INZER, CLERK

By~~ Deputy Clerk

176
177
GARY MICHAEL HILTON, IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
Defendant/Appellant, AND FOR LEON COUNTY, FLORIDA

v. CASE NO. 08-CF-697

SPN. NO. 19719
STATE OF FLORIDA,

Plaintiff/Appellee.
_________________ !

NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN that GARY MICHAEL HILTON, pursuant to

Article V, Section 3(b)(l) of the Florida Constitution and Rule 9.030(a)(l), Florida Rules of

Appellate Procedure, appeals tot he Florida Supreme Court the Judgment and Sentence of

Death by the Circuit Court for Leon County rendered on April21, 2011, by Circuit Judge

James Hankinson. The nature of the appeal is a final judgment and sentence imposing a death

sentence.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished by delivery to

Willie Meggs, State Attorney, Leon County Courthouse, Tallahassee, FL, and by U.S. mail to

Trisha Meggs Pate, Assistant Attorney General, Counsel for the State of Florida, The Capitol,
' u<--- t!l fA.i/J
PL-01, Tallahassee, FL 32399-1050, on this _>-r_ day of1'1:pri1, 2011.

Respectfully submitted,

NANCY A. DANIELS
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT

MARIA INE SUBER# 0539538

ASSISTANT PUBLIC DEFENDER
LEON COUNTY COURTHOUSE
301 S. MONROE ST., SUITE 401
.:: .:_;:;-
_:t· • ~. !.·:,::.:;::,:. TALLAHASSEE, FLORIDA 32301
I (850) 606-1000

ATTORNEY FOR DEFENDANT

178
179
 MANDATE

SUPREME COURT OF FLORIDA

To the Honorable, the Judges of the:

District Court of Appeal, Second District

WHEREAS, in that certain cause filed in this Court styled:

GARY MICHAEL HILTON vs. STATE OF FLORIDA

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The attached opinion was rendered on: 03/21/2013

YOU ARE HEREBY COMMANDED thatforther proceedings be had in accordance with said opinion.
the rule of this Court and the laws of the State ofFlorida.

WITNESS. The Honorable Ricky L. Polston, Chief Justice of the Supreme Court of
Florida and the Seal ofsaid Court at Tallahassee. the Capital, on this 31st day of
July, 2013.

~£?tl&a
erk oft/ieSUpreme Court ofFlorida

~rOOd in the Official Records

180
of Leon County .
 ~upreme <!ourt of jfloriba

No. SC11-898

GARY MICHAEL HILTON,

Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[March 21, 2013]

PER CURIAM.

Cheryl Dunlap disappeared from the Leon Sinks Geological Area in Leon

County, Florida, on December 1, 2007. Her body was discovered in the

Apalachicola National Forest on December 15, 2007. Gary Hilton, who had been

seen in the area during that time, and who was convicted in Georgia for a similar

crime, was charged with her kidnapping and murder. After trial, the jury convicted

Hilton. After hearing penalty phase evidence, the jury unanimously recommended

the death penalty. The court followed the jury's recommendation and sentenced

Hilton to death, finding six aggravating factors, one statutory mitigating factor, and

eight nonstatutory mitigating factors. This case is before the Court on appeal from

181
 a judgment of conviction of first-degree murder and a sentence of death. We have

jurisdiction. See art. V, § 3(b)(l ), Fla. Con st. For the following reasons, we affirm

Hilton's convictions and sentence.

FACTS

On February 28, 2008, a Leon County grand jury indicted Gary Michael

Hilton for the first-degree murder of Cheryl Dunlap between December 1 and

December 15, 2007, kidnapping, grand theft of a motor vehicle, and grand theft of

currency. Hilton pleaded not guilty on March 14, 2008. Hilton proceeded to a jury

trial commencing on February 2, 2011.

Cheryl Dunlap, 46, was last seen alive on December 1, 2007. That morning,

Dunlap called a friend, Kiona Hill, and made arrangements to have dinner with her

that evening. That afternoon, Dunlap went to Leon Sinks to read, where she was

seen by Michael and Vikki Shirley at approximately 1:30 p.m. The Shirleys

described that Dunlap was wearing jeans and a sweater and carrying a hardback

book. Dunlap did not arrive for dinner that evening and was missed at church the

following morning by Tanya Land. Land went to Dunlap's residence and found

her dog, but noticed that her car was missing so she called the police. Steven

Ganey of the Wakulla County Sheriff's Office took the missing person report on

December 3, 2007.

- 2-
182
 Dunlap's car, a white Toyota Camry, was found on December 3, 2007, on

the side of Crawfordville Highway parked near the woods. The car had deliberate

tire punctures in the sidewall that was later identified as a bayonet piercing. On

December I, the car had received a disabled vehicle ticket from Florida Highway

Patrol Trooper Brian Speigner. Ganey testified that it appeared that someone had

driven into the woods with all four tires intact and punctured the tire after the car

had been parked. Dunlap's purse was recovered in her car, but no money was

found.

Dunlap's Ameris Bank account records revealed that Dunlap cashed a check

with a drive-through teller at 11:17 a.m. on December 1. The records further

revealed that three cash withdrawals were made at the ATM at Hancock Bank on

West Tennessee Street on December 2, 3, and 4, 2007, totaling $700. In addition,

two attempted withdrawals were declined because they exceeded the daily limit.

The video from the security camera at the bank showed that the person making the

transactions was wearing a blue and white patterned, long-sleeved shirt, glasses, a

hat, and a make-shift mask made from tape.

Dunlap's body was discovered on December 15 by Ronnie Rentz while he

was hunting in the Apalachicola National Forest. Dunlap's body was near a forest

road and had been covered with some brush and limbs. Additionally, her head and

hands had been removed. Dunlap's body was identified using a sample of thigh

-3- 183
 muscle. Dr. Anthony Clarke, an associate medical examiner, performed the

autopsy. Dr. Clarke opined that Dunlap's head and hands had been removed by an

instrument with a sharp blade and that the dismemberment occurred postmortem.

The cause of death was not able to be determined, but Dr. Clarke opined that it was

likely to have been a violent homicide. Additionally, Dr. Clarke noted that there

was a significant pre-mortem bruise located on Dunlap's middle to lower back and

that the bruise was not consistent with a normal fall injury. Dr. Clarke estimated

that Dunlap's body could have been in the woods for seven to fifteen days. Dr.

Clarke testified that his best estimate was that Dunlap died between December 5

and December 8, 2007.

On January 9, 2008, investigators found what they believed to be the

remains of Dunlap's head and hands in a fire pit at Joe Thomas campsite-

approximately seven miles from where her body had been found. The bone

fragments were charred. Because of the bum damage, no DNA was recoverable

from the fragments. Dr. Anthony Falsetti, a forensic anthropologist, opined that

there were two hands represented, that the bones were from an adult, and that the

bones were from a person with small hands.

Several witnesses testified that they saw or encountered Gary Michael

Hilton during the time period surrounding Dunlap's disappearance. In late

November 2007, George Ferguson encountered Hilton on LL Wallace Road.

-4- 184
 Hilton asked Ferguson for a jump start because his van, a white Chevrolet Astro,

would not crank. Ferguson testified that it did not appear to him that Hilton

actually needed the assistance. Ethan Davis provided similar testimony, that

sometime in late November 2007, Hilton stopped him and asked for help starting

his vehicle. Davis declined. Shawn Matthews also encountered Hilton in late

November near his LL Wallace Road camp. Hilton appeared to be familiar with

the area and told Matthews about a nearby sinkhole. On December 1, 2007,

Celeste Hutchins saw Hilton on Crawfordville Highway, not far from Leon Sinks.

Hutchins testified that Hilton was rummaging through a white Carmy on the side

of the road. On December 10, 2007, Loretta Mayfield spoke to Hilton at a

convenience store on Crawfordville Highway. Mayfield testified that Hilton was

wearing a blue and white patterned shirt. Hilton was also wearing something on

his left side that looked like a large knife holder. Mayfield testified that the shirt

she saw Hilton wearing looked like the one in the ATM security video. On

December 11, 2007, Stephen Prosser saw Hilton in the Apalachicola National

Forest. On December 12, 2007, Michael Travis saw Hilton in the forest near the

Bloxham cutoff and then saw him again on December 14. On December 18, 2007,

Teresa Johnson saw Hilton in Bristol, Florida, where Hilton told her that she

looked like Dunlap and that it was "too bad" about that girl getting murdered.

-5- 185
 Sometime between December 18, 2007, and January 1, 2008, Hilton made

his way to Georgia where he kidnapped and murdered Meredith Emerson. Hilton

took Emerson from Blood Mountain and held her for four days before murdering

her. He cooperated with law enforcement in exchange for a life sentence. Hilton

was arrested in Georgia after Stephen Shaw saw Hilton walk to the back of a

convenience store in the direction of the store's dumpsters and called law

enforcement. Law enforcement officers recovered items Hilton was seen

discarding in a dumpster at the convenience store. From the dumpster, law

enforcement recovered a U.S. Forestry citation for unauthorized camping, a knife

and sheath, Hi-Tee boots, some chain, a padlock, gloves, a jacket, a folding police

baton, and a blue backpack. Hilton gave Georgia officials information on where to

find his bayonet on a hiking trail on Blood Mountain in North Georgia. Later, Jeff

Foggy, an FDLE tool mark expert, matched the bayonet to the puncture marks in

Dunlap's tire. Georgia law enforcement also gathered items from Hilton's van.

Items recovered from the van included clothing, jackets, gloves, camping

equipment, duffel bags, two sleeping bags, Hi-Tee boots, a camera, tobacco rolling

papers, Hilton's Georgia driver's license, tape, paper towels, maps, two BB pistols,

a book purchased at a Tallahassee book store, and dog food.

On February 12, 2008, Sergeant David Graham and Detective Dawn Dennis

with the Leon County Sheriffs Office executed a search warrant on Hilton while

-6- 186
 he was in custody in Georgia. Hilton's DNA was collected and the entire

execution of the warrant was recorded. Portions of the recording were played for

the jury.

On June 6, 2008, Sergeant Graham and two other officers drove Hilton from

Georgia to Florida. Although Hilton was not questioned, he spoke for nearly the

entire five-hour drive, which was recorded. The State also played portions of this

recording at trial. Hilton stated:

I'm not all bad. I mean, you got to understand, I mean, I'm sure you
can see. I mean, I'm a [expletive] genius, man. I'm not a-I'm not
all bad. I just, you know, lost my mind for a little bit. Lost a grip on
myself, man. What can I tell you? FBI and everybody else is trying
to scratch their head, hey, guys don't get started doing my shit at 61
years old. It just don't happen, you know. Like there's a retired FBI
(indecipherable) named Cliff Van, Clifford VanZandt, that keeps
getting himself in the news, talking about me. And he said, this guy
didn'tjust fall off the turnip truck, he said. You know, in other words,
he's been doing this. But like I told you before, you know, when I
saw you before, I said, remember, I said I'd give you one for free.
Nothing before September, okay? I mean, I'm not joking, okay? I
just, I got old and sick and couldn't make a living and just lost, flat
lost my [expletive] mind for a while, man. I couldn't get a grip on it.

Additionally, Hilton made statements to a fellow inmate at the Leon County

Jail that were overheard by Correctional Officer Caleb Wynn. Specifically, Hilton

told inmate Summers that he could answer all the State Attorney's questions if he

would give him a life sentence, that he would reveal where the head was located,

that his bayonet was used on Dunlap's tire, that he would explain how he "pulled it

- 7- 187
 off" on a busy highway, that he spent a few hours or a few days with Dunlap, and

that he felt no regret other than getting caught.

The penalty phase began on February 17, 2011, during which the state called

Clay Bridges of the Georgia Bureau ofinvestigation. Agent Bridges testifted

about Hilton's prior felony conyiction-the murder of Emerson in Georgia to

which Hilton pleaded guilty. The State played Hilton's taped conversation with

law enforcement where he described kidnapping Emerson, holding her captive, and

stripping her body naked to remove DNA and fiber evidence. He also stated that

"you either kill them or you get caught."

Hilton presented four expert witnesses who testified regarding his

psychological condition: Dr. Joseph Wu, a psychiatrist and clinical director of the

Brain Imaging Center at the University of California, Irvine; Dr. Charles Golden, a

clinical neuropsychologist perfotming neuropsychological testing and

examinations; Dr. Abbey Strauss, a psychiatrist with special expertise in

psychopharmacology; and Dr. William Morton, a board certified psychiatric

pharmacist and professor; and nine lay witnesses. The State then called Dr. Greg

Prichard in rebuttal.

On February ;21, 2011, the jury recommended unanimously that Gary Hilton

be sentenced to death for the murder of Cheryl Dunlap.

- 8- 188
 The trial court held the Spencer 1 hearing on April 7, 2011. The State

presented three victim impact witnesses: (1) Ms. Emma Blount, the victim's aunt;

(2) Laura Walker, the victim's best friend; and (3) Gloria Tucker, the victim's

cousin. Hilton presented no witnesses.

The trial court found that the State had proven six aggravators beyond a

reasonable doubt. Assigning weight to each aggravator, the trial court found: (1)

the defendant was previously convicted of a violent felony (great weight); (2) the

murder was committed in the course of a kidnapping (great weight); (3) the murder

was committed to avoid arrest (moderate weight); (4) the murder was committed

for pecuniary gain (some weight); (5) the murder was especially heinous, atrocious

or cruel (HAC) (great weight); and (6) the murder was cold, calculated, and

premeditated (CCP) (great weight).

The court also considered and weighed each mitigating circumstance

proposed by Hilton and found one statutory mental mitigating factor-at the time

of the murder Hilton was under extreme emotional distress (some weight). Under

the catch-all provision, the trial court considered ten mitigating factors, finding that

Hilton established eight of them and rejecting two. The court found: (1) Hilton

grew up in an abusive household (some weight); (2) Hilton abused drugs,

specifically Ritalin (some weight); (3) Hilton was deprived of a relationship with

1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

-9- 189
 his biological father (moderate weight); (4) Hilton is already serving a life sentence

so society is protected (some weight); (5) Hilton served his country in the US

military (very little weight); (6) Hilton suffered maternal deprivation and lack of

bonding between mother and child (some weight); (7) Hilton was removed from

his home and put into foster care when he was a child (some weight); (8) Hilton

grew up in a financially poor family (not proven); (9) Hilton suffered a traumatic

brain injury as a child (some weight); and (10) Hilton suffers from severe mental

defects (not proven).

On April21, 2011, the trial court followed the jury's unanimous

recommendation and sentenced Hilton to death. The court found beyond a

reasonable doubt that the aggravators outweighed the mitigators.

Collateral Crime Evidence

Hilton argues that his statements to law enforcement during his transport

from Georgia to Florida should not have been introduced at trial because they

constitute inadmissible Williams 2 rule evidence because the statements were only

relevant to show his propensity to commit crime. The State argues that the trial

judge did not commit error in admitting the statements because Hilton did not state

that he had committed other murders or crimes before he kidnapped Cheryl

Dunlap. The State argues further that even if the statements constitute collateral

2. Williams v. State, 110 So. 2d 654 (Fla. 1959).

- 10- 190
 crime evidence, they were still admissible to prove premeditation. Because the

statements did not constitute similar fact or collateral crime evidence and were

otherwise relevant and admissible to establish premeditation, we find that the

statements were properly admitted.

Collateral crime evidence "is inadmissible when the evidence is relevant

solely to prove bad character or propensity." § 90.404(2)(a), Fla. Stat. (2008). We

explained in McGirth v. State, 48 So. 3d 777, 786-87 (Fla. 20 10), cert. denied, 131

S. Ct. 2100 (2011), that:

[a]n appellate court will not disturb a trial court's determination that
evidence is relevant and admissible absent an abuse of discretion.
Relevant evidence is generally admissible unless precluded by a
specific rule of exclusion. There are two categories under which
evidence of uncharged crimes or bad acts will be admissible-similar
fact evidence, otherwise known as Williams rule evidence, and
dissimilar fact evidence. The requirements and limitations of section
90.404 govern similar fact evidence while the general rule of
relevancy set forth in section 90.402 governs dissimilar fact evidence.

I d.; see also McCray v. State, 71 So. 3d 848 (Fla. 2011) (intemal citations omitted)

cert. denied, 132 S. Ct. 1743 (2012).

During his transport from Georgia to Florida, Hilton talked practically

nonstop for the entire nearly five-hour drive. During this time, Hilton made

several statements that were played in front of the jury. At issue here, Hilton

stated, "like I told you before, you know, when I saw you before, I said, remember,

I said I'd give you one for free. Nothing before September, okay? I mean, I'm not

- 11 - 191
 joking, okay?" Hilton also stated repeatedly that he had "lost his mind" for a

while. Hilton claims that these statements were evidence of collateral crimes.

Hilton's argument is without merit. The statements played for the jury did not

implicate Hilton in a collateral crime, nor did they constitute similar fact evidence.

Further, even if the statements constituted Williams rule evidence, they were

admissible to demonstrate premeditation and were not introduced solely to

demonstrate Hilton's bad character or propensity. Furthermore, Hilton's statement

to law enforcement was ambiguous and did not directly implicate him in a

collateral crime. Hilton's statement that he began "hunting" in September did not

correlate with any known crime at the time of his trial. Nothing in Hilton's

statement implies that Dunlap was not his first victim or implicates Hilton in a

collateral crime. We do not find these statements constitute Williams rule

evidence. Because Hilton's statement was relevant to prove premeditation, we find

that the trial court did not abuse its discretion in admitting the evidence. See

§ 90.404(2), Fla. Stat. (2008); see, e.g., Durousseau v. State, 55 So. 3d 543 (Fla.

2010), cert. denied, 132 S. Ct. 149 (2011).

Dr. Prichard's Testimony

Hilton argues that the trial court erred in permitting Dr. Gregory Prichard to

testify about allegations of Hilton's past criminal conduct during the penalty phase

and that such testimony constituted improper nonstatutory aggravating

- 12-
192
 circumstances. The State argues that Dr. Prichard was called as a proper rebuttal

witness to dispute Hilton's claim that he had done nothing wrong prior to this

crime and that the change in his character was created by Ritalin. Because Hilton's

expert testimony opened the door for Dr. Prichard's testimony, we find that the

trial court properly admitted the testimony.

In considering the admission of evidence during the penalty phase of a trial,

in Hildwin v. State, 531 So. 2d 124, 127 (Fla. 1988), we noted:

it must be remembered that there is a different standard for judging

the admissibility and relevance of evidence in the penalty phase of a
capital case, where the focus is substantially directed toward the
defendant's character. See§ 921.141(1), Fla. Stat. (1987). In Elledge
v. State, 346 So. 2d 998, 1001 (Fla. 1977), we pointed out that "the
purpose of considering aggravating and mitigating circumstances is to
engage in a character analysis of the defendant to ascertain whether
the ultimate penalty is called for in his or her particular case."
Thus, "evidence that would not be admissible during the guilt
phase could properly be considered in the penalty phase."

Perry v. State, 801 So. 2d 78, 89-90 (Fla. 2001).

In~' we found that the State's "anticipatory rebuttal" was improper and

that nothing in the record supported the State's assertion that the defendant

"opened the door" to be questioned about specific acts of past violence; Id. at 90

(citing Hildwin, 531 So. 2d at 128). Here, however, Hilton's penalty phase

defense relied heavily on the assertion that Hilton was a law-abiding citizen prior

to his exposure to Ritalin. Dr. Prichard's testimony was provided in rebuttal to that

assertion. We therefore find that the testimony in this case when "[v]iewed in

- 13 - 193
 context, ... was offered in rebuttal to the defense, not as a nonstatutory

aggravator." Zack v. State, 911 So. 2d 1190, 1208 (Fla. 2005). Accordingly, we

deny relief on this claim.

Witness Sequestration

Hilton argues that the trial court erred in permitting Dr. Prichard to stay in

the courtroom, despite the sequestration rille. Because we find that the trial court

did not err in excluding Dr. Prichard from the sequestration rule, we deny relief on

this claim.

We have previously provided that reason for the rule of witness

sequestration is to avoid coloring a witness's testimony by that heard from other

witnesses, but that the rule is not an absolute that must be invoked at the mere

request of counsel. See Randolph v. State, 463 So. 2d 186, 191 (Fla. 1984) (citing

Spencer v. State, 133 So. 2d 729 (Fla. 1961)). Section 90.616(2)(c), Florida

Statutes (1997), allows an exception when a witness's presence is shown by the

party's attorney to be essential to the presentation of the party's cause, and the trial

court has wide discretion in making that determination. See Knight v. State, 746

So. 2d 423, 430 (Fla. 1998).

Here, Dr. Prichard was pennitted to stay in the courtroom upon the State's

request. Because the State was late filing its notice of intent to seek the death

penalty, Dr. Prichard was prevented from examining Hilton. The State requested

- 14-
194
 that he be excluded from the sequestration rule to give Dr. Prichard a chance to

provide meaningful assistance to the State. He testified in rebuttal to the defense

expert witnesses and did not serve as a fact witness. During cross-examination,

Dr. Prichard stated that he "sat through the entire penalty phase ... and handed

notes to Mr. Meggs." Accordingly, we find that Dr. Prichard's presence was

essential to the presentation of the State's cause and that the trial court did not

abuse its discretion permitting Dr. Prichard to remain in the courtroom.

Aggravators

Hilton argues that the evidence was insufficient to establish the HAC and

CCP aggravating circumstances and that the trial court erred in finding these

circumstances applied in Hilton's case. The State argues that the trial court

properly relied on the circumstances surrounding a collateral murder. Because we

find competent, substantial evidence in the record to support the trial court's

findings, we find no error.

"In reviewing an aggravating factor challenged on appeal, this Court's task

'is to review the record to determine whether the trial court applied the right rule of

law for each aggravating circumstance, and, if so, whether competent substantial

evidence supports its finding.'" Douglas v. State, 878 So. 2d 1246, 1260-61 (Fla.

2004) (quoting Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997)); see also Heyne

v. State, 88 So. 3d 113, 122 (Fla.), cert. denied, 133 S. Ct. 574 (2012). In deciding

- 15 - 195
 whether a lower court erred in its finding of an aggravator, we do not reweigh the

evidence to determine whether an aggravator was proven beyond a reasonable

doubt but instead "review the record to determine whether the trial court applied

the right rule of law for each aggravating circumstance and, if so, whether

competent substantial evidence supports its finding." Franklin v. State, 965 So. 2d

79, 98 (Fla. 2007) (quoting Williacy, 696 So. 2d at 695).

HAC

This Court has explained the meaning of the HAC aggravator as follows:

It is our interpretation that heinous means extremely wicked or

shockingly evil; that atrocious means outrageously wicked and vile;
and, that cruel means designed to inflict a high degree of pain with
utter indifference to, or even enjoyment of, the suffering of others.
What is intended to be included are those capital crimes where the
actual commission ofthe capital felony was accompanied by such
additional acts as to set the crime apart from the norm of capital
felonies-the conscienceless or pitiless crime which is unnecessarily
torturous to the victim.

State v. Dixon, 283 So. 2d I, 9 (Fla. 1973); see also Guzman v. State, 721 So. 2d

1155, 1159 (Fla. 1998) ("The HAC aggravator applies only in torturous murders-

those that evince extreme and outrageous depravity as exemplified either by the

desire to inflict a high degree of pain or utter indifference to or enjoyment of the

suffering of another."). This Court has also stated that"[ u]nlike the cold,

calculated and premeditated aggravator, which pertains specifically to the state of

mind, intent and motivation of the defendant, the HAC aggravator focuses on the

- 16 - 196
 means and manner in which death is inflicted and the immediate circumstances

surrounding the death." Brown v. State, 721 So. 2d 274, 277 (Fla. 1998) (citing

Stano v. State, 460 So. 2d 890, 893 (Fla. 1984)). Furthermore, we have held that

"[i]n determining whether the HAC factor was present, the focus should be upon

the victim's perceptions of the circumstances as opposed to those ofthe

perpetrator." Lynch v. State, 841 So. 2d 362, 369 (Fla. 2003); see also Heyne, 88

So. 3d at 122; McGirth, 48 So. 3d at 794. The victim's mental state may be

evaluated in accordance with common-sense inferences from the circumstances.

Swafford v. State, 533 So. 2d 270, 277 (Fla. 1988). "[F]ear, emotional strain, and

terror of the victim during the events leading up to the murder may make an

otherwise quick death especially heinous, atrocious, or cruel." James v. State, 695

So. 2d 1229, 1235 (Fla. 1997); see also Swafford, 533 So. 2d at 277; Hall, 87 So.

3d 671-72. Additionally, we have held that the actions of the defendant preceding

the actual killing are also relevant. Gore v. State, 706 So. 2d 1328, 1335 (Fla.

1997).

Here, the record demonstrates competent, substantial evidence that Dunlap

was held anywhere from 2 days to a week prior to her murder, and that she was

injured enough during that time to leave traces of her blood on several of Hilton's

items. The trial court's inferences that the victim was likely terrified, suffering

from emotional strain, or suffering during the time leading up to her murder are

- 17- 197
 supported by our review of the record. Accordingly, we find that there is

competent, substantial evidence contained in the record to support the trial court's

finding of HAC.

CCP

As it relates to the finding of CCP, we have stated:

To establish the CCP aggravator, the State must prove beyond a

reasonable doubt that (I) the killing was the product of cool and calm
reflection and not an act prompted by emotional frenzy, panic, or a ftt
of rage (cold); (2) the defendant had a careful plan or prearranged
design to commit murder before the fatal incident (calculated); (3) the
defendant exhibited heightened premeditation (premeditated); and (4)
the murder was committed with no pretext of legal or moral
justification.

McWatters, 36 So. 3d at 640-41. "The CCP aggravator pertains specifically to the

state of mind, intent, and motivation of the defendant." Wright v. State, 19 So. 3d

277,298 (Fla. 2009) (citing Brown v. State, 721 So. 2d 274, 277 (Fla. 1998)). The

trial court's determination of whether CCP is present in a case is based upon the

totality of the circumstances. Hudson v. State, 992 So. 2d 96, 115 (Fla. 2008).

CCP can be proved by circumstantial evidence. Pearce v. State, 880 So. 2d 561,

576-77 (Fla. 2004). CCP can be indicated by the circumstances showing such facts

as advance procurement of a weapon, lack of resistance or provocation, and the

appearance of a killing carried out as a matter of course. Swafford, 533 So. 2d at

277. It is the State's burden to prove beyond a reasonable doubt that the murder

was the product of cool and calm reflection and not an act of emotional frenzy or

- 18-
198
 panic, or a fit of rage. Walker v. State, 957 So. 2d 560, 581 (Fla. 2007). "'[T]he

facts supporting CCP must focus on the manner in which the crime was executed,

e.g., advance procurement of weapon, lack of provocation, killing carried out as a

matter of course.'" Id. (quoting Lynch, 841 So. 2d at 372). "'Competent

substantial evidence is tantamount to legally sufficient evidence, and [this Court]

assess[ es] the record evidence for its sufficiency only, not its weight.' " McCoy v.

State, 853 So. 2d 396, 407 (Fla. 2003) (quoting Almeida v. State, 748 So. 2d 922,

932 (Fla. 1999)).

This Court has also found the heightened premeditation required to support

CCP where a defendant has a lengthy period of reflection and the opportunity to

abandon the plan but, instead, commits the murder. Alston v. State, 723 So. 2d

148, 162 (Fla. 1998). We explained in Alston that where the defendant had ample

opportunity to release the victim but instead, after substantial reflection, "acted out

the plan [he] had conceived during the extended period in which [the] events

occurred," heightened premeditation was proven. Id. (quoting Jackson v. State,

704 So. 2d 500, 505 (Fla. 1997)) (citation omitted); see also Looney v. State, 803

So. 2d 656, 679 (Fla. 2001 ).

The trial court's finding of CCP in this case is supported by competent,

substantial evidence. Hilton's statements to law enforcement demonstrate that he

killed as a matter of course. He describes his own actions as "hunting." Although

- 19- 199
 the manner of killing was not able to be established, the method of disposal of the

victim's body was calculated and carried out after a period of needed reflection.

Hilton's statements on the self-made video and to a fellow inmate describe being

with the victim for a long enough time for careful reflection. Accordingly, we find

that the trial court did not err in finding this aggravating factor.

Mitigation

Hilton argues that that trial court improperly rejected the lack of capacity

mitigating factor and failed to provide reasons why there is substantial, competent

evidence in the record to support the rejection of the mitigating circumstance. The

State argues that the trial court properly weighed the experts' testimonies and

found the State's expert's opinion more credible.

In rejecting this mitigating factor, the trial court stated, "[t]he Court finds

that Dr. Prichard's testimony was more credible and more consistent with the other

evidence ih the case as to this point. The Court finds that this factor in mitigation

was not proven." A trial court may reject a defendant's claim that a mitigating

circumstance has been proven as long as the record contains competent substantial

evidence to support the trial court's rejection of the mitigation. See Spencer, 645

So. 2d at 385. Even expert testimony may be rejected if it cannot be reconciled

with the other evidence in the case. See Coday v. State, 946 So. 2d 988, 1005 (Fla.

2006).

- 20-
200
 Here, the testimony was not uncontroverted and, "[i]t is apparent from the ... trial

judge's sentencing order that he considered the expert testimony presented in

support of these factors but found this testimony unpersuasive." Roberts v. State,

519 So. 2d 885,894 (Fla. 1987). Accordingly, we deny relief on this claim.

Ring Claim

Hilton argues that this Court should re-examine its holdings in Bottoson v.

Moore, 833 So. 2d 693 (Fla.), cert. denied, 123 S. Ct. 662 (2002), and King v.

Moore, 831 So. 2d 143 (Fla.), cert. denied, 123 S. Ct. 657 (2002). Because Hilton

was convicted of murder that occurred in connection with a kidnapping and

because Hilton had previously been convicted of a prior violent felony, we find his

request without merit. We have repeatedly rejected this argument when either

aggravating factor is present. See McMillian v. State, 94 So. 3d 572 (Fla. 2012),

cert. denied, 2013 U.S. Lexis 1305 (Feb. 19, 2013); Heyne v. State, 88 So. 3d 113,

120 n.2 (Fla. 2012); Kopsho v. State, 84 So. 3d 204, 220 (Fla.), cert. denied, 133 S.

Ct. 190 (2012); Hodges v. State, 55 So. 3d 515, 540 (Fla. 2010), cert. denied, 132

S. Ct. 164 (2011).

Sufficiency

Hilton does not challenge the sufficiency of the evidence to support his

convictions. However, this Court independently assesses the sufficiency of the

evidence to determine whether it is legally sufficient. See Crain v. State, 894 So.

- 21 - 201
 2d 59, 72 (Fla. 2004) (" ... in capital cases, this Court independently assesses the

sufficiency of the evidence to determine if it is legally sufficient."). Based on our

review of the record, we find that there is competent substantial evidence to sustain

the convictions in this case.

Viewing the evidence in the light most favorable to the State, there is

competent, substantial evidence to support Hilton's convictions. See Bradley v.

State, 787 So. 2d 732, 738 (Fla. 2001) ("In determining the sufficiency of the

evidence, the question is whether, after viewing the evidence in the light most

favorable to the State, a rational trier of fact could have found the existence of the

elements of the crime beyond a reasonable doubt."). Specifically, the evidence

presented at trial demonstrated that Cheryl Dunlap disappeared on December 1,

2007, and that on December 15, her decomposing body was found beheaded and

with her hands removed. Dunlap had been last seen on December 1, 2007, at Leon

Sinks National Park. Her car was located abandoned on Crawfordville Highway

on December 3 with a tire that had been punctured by an item later identified as

Hilton's bayonet. On December 1, witnesses saw a man rummaging through

Dunlap's car and later identified that man as Gary Hilton. Witnesses spoke with

Hilton in surrounding areas during the time Dunlap was reported missing.

Witnesses identified the clothing Hilton was wearing during that time period. On

December 2, 3, and 4, a man matching Hilton's build and wearing clothing similar

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202
 to that described by witnesses used Dunlap's ATM card and PIN at Hancock Bank

on Termessee Street to remove a total of $700 from her bank account. In a self-

made video retrieved from a camera found in Hilton's possession, Hilton is shown

on December 3, 2007, talking to himself or his dog, describing hiding unknown

items and killing "those b*tches." Charred human bones, including a skull and

hand bones, were found in a fire pit near a campsite where Hilton was seen by

Shawn Matthews. In addition, this campsite also contained cigarette butts that

contained Hilton's DNA. Dunlap's DNA was found on articles recovered from

Hilton's van, including two sleeping bags, Hilton's duffel bag, some pants and on

the Hi-Tee boots Hilton was seen discarding. Hilton was overheard by law

enforcement telling a fellow inmate that he would tell them where the head was if

they would give him a life sentence. On the drive from Georgia to Florida, Hilton

told law enforcement that he had lost his mind, but hadn't done anything before

September. Based on this, we find the evidence sufficient to support the

convictions in this case.

Proportionality

Although not raised by Hilton, we have an independent duty to review the

proportionality of a death sentence. See McMillian, 94 So. 3d at 5 81 (citing Bolin

v. State, 869 So. 2d 1196, 1204 (Fla. 2004)); Hampton v. State, 103 So. 3d 98 (Fla.

2012), petition for cert. filed, No. 12-8923 (U.S. Feb. 20, 2013). A review of the

- 23- 203
 evidence demonstrates that the proportionality of Hilton's sentence of death is

proportionate.

Here, the jury's recommendation was unanimous. The trial court weighed

the six aggravators proven by the State against the mitigation proven by Hilton and

concluded that "the aggravating circumstances outweigh the mitigating

circumstances in this case." The aggravating circumstances found are supported

by competent, substantial evidence and the record "fails to reveal any indication

that the trial court abused its discretion in assigning little weight to the mitigation

that was established." Hampton, 103 So. 3d at 121. We find that the imposition of

the death sentence in this case is proportionate when compared to other death

sentences that this Court has upheld. See, e.g., Hildwin v. State, 727 So. 2d 193

(Fla. 1998) (four aggravators: HAC, prior violent felony, pecuniary gain, and under

sentence of imprisonment; two statutory mitigators; and five nonstatutory

mitigators); Johnston v. State, 841 So. 2d 349 (Fla. 2002) (prior violent felony,

kidnapping, pecuniary gain, and HAC versus one statutory mitigator and twenty-

six nonstatutory mitigators); Suggs v. State, 923 So. 2d 419,440 (Fla. 2005)

(sentence to death proportionate when the trial court found seven aggravating

factors and three mitigating factors, including one statutory mental mitigator and

this Court noted that the murder "particularly heinous and premeditated"); Owen v.

State, 862 So. 2d 687 (Fla. 2003) (finding death sentence proportionate for 23 year

- 24-
204
 old defendant, despite the presence of three statutory mitigators, including both

mental mitigators and sixteen other mitigators where there was evidence of

multiple stab wounds and the presence of multiple aggravators, including HAC,

CCP, and a conviction for another murder); Rose v. State, 787 So. 2d 786 (Fla.

2001) (finding death sentence proportionate despite the presence of eleven

nonstatutory mitigators where trial judge found four aggravators-murder

committed while on probation, prior violent felony, murder committed during a

kidnapping, and HAC).

Conclusion

For the foregoing reasons, we affirm Hilton's convictions and sentence of

death. It is so ordered.

POLSTON, C.J., and PARIENTE, QUINCE, CANADY, LABARGA, and

PERRY, JJ., concur.
LEWIS, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Leon County,

James C. Hankinson, Judge- Case No. 08-CF-697

Nancy Ann Daniels, Public Defender and William Carl McLain, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

for Appellant

- 25- 205
Pamela Jo Bondi, Attorney General and Meredith Charbula, Assistant Attorney
General, Tallahassee, Florida,

for Appellee

- 26-
206
&.L 207
Westlaw,
Page I
134 S.Ct. 686, 187 L.Ed.2d 556, 82 USLW 3329
(Cite as: 134 S.Ct. 686)

Supreme Court of the United States

Gary Michael HILTON, petitioner,
Y.
FLORIDA.

No. 13-6416.
Dec. 2, 2013.

Case below, I 17 So. 3d 742.

Petition for writ of certiorari to the Supreme

Court of Florida denied.

U.S.,2013
Hilton v. Florida
134 S.Ct. 686, 187 L.Ed.2d 556,82 USLW 3329

END OF DOCUMENT

© 20!4 Thomson Reuters. No Claim to Orig. US Gov. Works.

208
Fil1ng li 22974777 E-Filed 01/2c,,2015 03:36:29 PM
)I,

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.

GARY MICHAEL HILTON,

Defendant.
_ ____cl

ANSWER TO MOTION FOR POST-CONVICTION RELIEF

On November 25, 2014, Hilton, represented by Robert A. Morris, filed a Motion for Post-

Conviction Relief. This is the State's Answer to the Motion for Post-Conviction Relief. This

( oun 'lwuld summarily deny all of the claims.

209
 Facts and Procedural History of the Case

Hilton was convicted of first-degree murder for which he was sentenced to death. The

facts of this case as recited by the Florida Supreme Court in the direct appeal opinion are:

On February 28, 2008, a Leon County grand jury indicted Gary Michael Hilton
I(H· the llrst-degree murder of Cheryl Dunlap between December I and December
15,2007, kidnapping, grand theft of a motor vehicle, and grand theft of currency.
Hilton pleaded not guilty on March 14, 2008. Hilton proceeded to a jury trial
commencing on February 2, 2011.

Cheryl Dunlap, 46, was last seen alive on December I, 2007. That morning,
Dunlap called a friend, Kiona Hill, and made arrangements to have dinner with
her that evening. That afternoon, Dunlap went to Leon Sinks to read, where she
was seen by Michael and Vikki Shirley at approximately 1:30 p.m. The Shirleys
described that Dunlap was wearing jeans and a sweater and carrying a hardback
book. Dunlap did not mTive for dinner that evening and was missed at church the
following morning by Tanya Land. Land went to Dunlap's residence and found
her dog, but noticed that her car was missing so she called the police. Steven
Ganey of the Wakulla County Sheriffs Office took the missing person report on
December 3, 2007.

Dunlap's car, a white Toyota Camry, was found on December 3, 2007, on the side
of Crawfordville Highway parked near the woods. The car had deliberate tire
runctures in the sidewall that was later identified as a bayonet piercing. On
December I, the car had received a disabled vehicle ticket from Florida Highway
Patrol Trooper Brian Speigner. Ganey testified that it appeared that someone had
driven into the woods with all four tires intact and punctured the tire after the car
had been parked. Dunlap's purse was recovered in her car, but no money was
found.

Dunlap's Ameris Bank account records revealed that Dunlap cashed a check with
a drive-through teller at 11:17 a.m. on December 1. The records further revealed
that three cash withdrawals were made at the A TM at Hancock Bank on West
Tennessee Street on December 2, 3, and 4, 2007, totaling $700. In addition, two
attempted withdrawals were declined because they exceeded the daily limit. The
video from the security camera at the bank showed that the person making the
transactions was wearing a blue and white patterned, long-sleeved shirt, glasses, a
hat, and a make-shift mask made from tape.

Dunlap's body was discovered on December 15 by Ronnie Rentz while he was

hunting in the Apalachicola National Forest. Dunlap's body was near a forest
road and had been covered with some brush and limbs. Additionally, her head
and hands had been removed. Dunlap's body was identified using a sample of

210
thigh muscle. Dr. Anthony Clarke, an associate medical examiner, performed the
autopsy. Dr. Clarke opined that Dunlap's head and hands had been removed by
an instrument with a sharp blade and that the dismemberment occulTed
postmortem. The cause of death was not able to be detennined, but Dr. Clarke
opined that it was likely to have been a violent homicide. Additionally, Dr.
Clarke noted that there was a significant pre-mortem bruise located on Dunlap's
middle to lower back and that the bruise was not consistent with a normal fall
injury. Dr. Clarke estimated that Dunlap's body could have been in the woods for
seven to fifteen days. Dr. Clarke testified that his best estimate was that Dunlap
died between December 5 and December 8, 2007.

On January 9, 2008, investigators found what they believed to be the remains of

Dunlap's head and hands in a fire pit at Joe Thomas campsite-approximately
seven miles from where her body had been found. The bone fragments were
charred. Because of the bum damage, no DNA was recoverable from the
ti:agments. Dr. Anthony Falsetti, a forensic anthropologist, opined that there were
two hands represented, that the bones were from an adult, and that the bones were
trom a person with small hands.

Several witnesses testified that they saw or encountered Gary Michael Hilton
during the time period surrounding Dunlap's disappearance. In late November
2007, George Ferguson encountered Hilton on LL Wallace Road. Hilton asked
Ferguson for a jump start because his van, a white Chevrolet Astra, would not
crank. Ferguson testified that it did not appear to him that Hilton actually needed
the assistance. Ethan Davis provided similar testimony, that sometime in late
November 2007, Hilton stopped him and asked for help starting his vehicle. Davis
declined. Shawn Matthews also encountered Hilton in late November near his LL
Wallace Road camp. Hilton appeared to be familiar with the area and told
Matthews about a nearby sinkhole. On December 1, 2007, Celeste Hutchins saw
Hilton on Crawfordville Highway, not far from Leon Sinks. Hutchins testified
that Hilton was rummaging through a white Camry on the side of the road. On
December I 0, 2007, Loretta Mayfield spoke to Hilton at a convenience store on
Crawfordville Highway. Mayfield testified that Hilton was wearing a blue and
white patterned shirt. Hilton was also wearing something on his left side that
looked like a large knife holder. Mayfield testified that the shirt she saw Hilton
wearing looked like the one in the ATM security video. On December 11, 2007,
Stephen Prosser saw Hilton in the Apalachicola National Forest. On December
I 2. 2007. Michael Travis saw Hilton in the forest near the Bloxham cutoff and
then saw him again on December 14. On December 18, 2007, Teresa Johnson
saw Hilton in Bristol, Florida, where Hilton told her that she looked like Dunlap
and that it was "too bad" about that girl getting murdered.

Sometime between December 18, 2007, and January 1, 2008, Hilton made his
way to Georgia where he kidnapped and murdered Meredith Emerson. Hilton
took Emerson from Blood Mountain and held her for four days before murdering
her. He cooperated with Jaw enforcement in exchange for a life sentence. Hilton

211
was arrested in Georgia after Stephen Shaw saw Hilton walk to the back of a
convemence store in the direction of the store's dumpsters and called law
enforcement. Law enforcement officers recovered items Hilton was seen
discarding in a dumpster at the convenience store. From the dumpster, law
cni'orccmcnt recovered a U.S. Forestry citation for unauthorized camping, a knife
and sheath, Hi-Tee boots, some chain, a padlock, gloves, a jacket, a folding
police baton, and a blue backpack. Hilton gave Georgia officials information on
where to find his bayonet on a hiking trail on Blood Mountain in North Georgia.
Later, Jeff Foggy, an FDLE tool mark expert, matched the bayonet to the puncture
marks in Dunlap's tire. Georgia law enforcement also gathered items from
Hilton's van. Items recovered from the van included clothing, jackets, gloves,
camping equipment, duffel bags, two sleeping bags, Hi-Tee boots, a camera,
tobacco rolling papers, Hilton's Georgia driver's license, tape, paper towels, maps,
two BB pistols, a book purchased at a Tallahassee book store, and dog food.

On February 12, 2008, Sergeant David Graham and Detective Dawn Dennis with
the Leon County Sheriffs Office executed a search warrant on Hilton while he
was in custody in Georgia. Hilton's DNA was collected and the entire execution
of the warrant was recorded. Portions of the recording were played for the jury.

On June 6, 2008, Sergeant Graham and two other officers drove Hilton from
Georgia to Florida. Although Hilton was not questioned, he spoke for nearly the
entire live-hour drive, which was recorded. The State also played portions of this
recording at trial. Hilton stated:

I'm not all bad. I mean, you got to understand, I mean, I'm sure you can see. I
mean, I'm a (expletive] genius, man. I'm not a-I'm not all bad. I just, you know,
lost my mind for a little bit. Lost a grip on myself~ man. What can I tell you? FBI
and everybody else is trying to scratch their head, hey, guys don't get started
doing my shit at 61 years old. It just don't happen, you know. Like there's a retired
FBI (indecipherable) named Cliff Van, Clifford Van Zandt, that keeps getting
himself in the news, talking about me. And he said, this guy didn't just fall off the
turnip truck, he said. You know, in other words, he's been doing this. But like I
told you before, you know, when I saw you before, I said, remember, I said I'd
give you one for free. Nothing before September, okay? I mean, I'm not joking,
okay? I just, I got old and sick and couldn't make a living and just lost, flat lost
my [expletive] mind for a while, man. I couldn't get a grip on it.

Additionally, Hilton made statements to a fellow inmate at the Leon County Jail
that were overheard by Correctional Officer Caleb Wynn. Specifically, Hilton
told inmate Summers that he could answer all the State Attorney's questions if he
would give him a life sentence, that he would reveal where the head was located,
that his bayonet was used on Dunlap's tire, that he would explain how he "pulled
it off' on a busy highway, that he spent a few hours or a few days with Dunlap,
and that he felt no regret other than getting caught.

212
 The penalty phase began on February 17, 2011, during which the state called Clay
Bridges of the Georgia Bureau of Investigation. Agent Bridges testified about
Hilton's prior felony conviction-the murder of Emerson in Georgia to which
Hilton pleaded guilty. The State played Hilton's taped conversation with law
enforcement where he described kidnapping Emerson, holding her captive, and
stripping her body naked to remove DNA and fiber evidence. He also stated that
"you either kill them or you get caught."

Hilton presented four expert witnesses who testified regarding his psychological
condition: Dr. Joseph Wu, a psychiatrist and clinical director of the Brain Imaging
Center at the University of California, Irvine; Dr. Charles Golden, a clinical
neuropsychologist performing neuropsychological testing and examinations; Dr.
Abbey Strauss, a psychiatrist with special expertise in psychopharmacology; and
Dr. William Morton, a board certified psychiatric pharmacist and professor; and
nine lay witnesses. The State then called Dr. Greg Prichard in rebuttal.

On I cbru<1ry 21, 20 II, the jury recommended unanimously that Gary Hilton be
sentenced to death for the murder of Cheryl Dunlap.

The trial court held the Spencer 1 hearing on April 7, 2011. The State presented
three victim impact witnesses: (1) Ms. Emma Blount, the victim's aunt; (2) Laura
Walker, the victim's best friend; and (3) Gloria Tucker, the victim's cousin. Hilton
presented no witnesses.

The trial court found that the State had proven six aggravators beyond a
reasonable doubt. Assigning weight to each aggravator, the trial court found: (1)
the defendant was previously convicted of a violent felony (great weight); (2) the
murder was committed in the course of a kidnapping (great weight); (3) the
murder was committed to avoid arrest (moderate weight); (4) the murder was
committed for pecuniary gain (some weight); (5) the murder was especially
heinous, atrocious or cruel (HAC) (great weight); and (6) the murder was cold,
calculated, and premeditated (CCP) (great weight).

The cou11 also considered and weighed each mitigating circumstance proposed by
Hilton and found one statutory mental mitigating factor-at the time of the
murder Hilton was under extreme emotional distress (some weight). Under the
catch-all provision, the trial court considered ten mitigating factors, finding that
Hilton established eight of them and rejecting two. The court found: (l) Hilton
grew up in an abusive household (some weight); (2) Hilton abused drugs,
specifically Ritalin (some weight); (3) Hilton was deprived of a relationship with
his biological father (moderate weight); (4) Hilton is already serving a life
sentence so society is protected (some weight); (5) Hilton served his country in
the U.S. military (very little weight); (6) Hilton suffered maternal deprivation and
lack of bonding between mother and child (some weight); (7) Hilton was removed

1
Spencer v. State, 615 So.2d 688 (Fla. 1993).

213
 from his home and put into foster care when he was a child (some weight); (8)
Hilton grew up in a tlnancially poor family (not proven); (9) Hilton suffered a
traumatic brain injury as a child (some weight); and (10) Hilton suffers from
severe mental defects (not proven).

On April 21, 20 II, the trial court followed the jury's unanimous recommendation
and sentenced Hilton to death. The coutt found beyond a reasonable doubt that the
aggravators outweighed the mitigators.

IIi/tun, . Sture. 117 So.Jd 742,746-50 (Fla. 2013) (footnote included).

On appeal to the Florida Supreme Court, Hilton raised six claims: I) the trial court erred

in admitting his statements to law enforcement as they constituted inadmissible Williams rule

evidence because they were only relevant to show his propensity to commit the crime; 2) the trial

court en·ed in admitting Dr. Gregory Prichard's testimony during the penalty phase regarding

Hilton's past criminal conduct. as it constituted improper nonstatutory aggravating

circumstances; 3) the trial court ened in permitting Dr. Prichard to remain in the couttroom,

despite invocation of the rule of sequestration; 4) the trial court erred in finding that the HAC

and CCP aggravating circumstances applied, as the evidence was insufficient for such a finding;

'i) the trial court erred in rejecting the lack of capacity mitigating factor and failed to provide

reasons why there is substantial, competent evidence in the record to support the rejection of this

mitigating circumstance; and 6) the Florida Supreme Court erred in upholding the death sentence

in light of Ring v. Arizona, 536 U.S. 584 (2002). The Florida Supreme Court affirmed Hilton's

convictions and death sentence. Hilton at 756. The Florida Supreme found the death sentence to

be proportionate. Hi!wn at 755. The Florida Supreme Court also reviewed the sufficiency of the

evidence. !d. Hilton then tiled a motion for rehearing on April 2, 2013, which was denied on July

2, 2013.

214
 On September 12, 2013, Hilton filed a petition for writ of certiorari in the United States

Supreme Cout1, raising a Rinl claim, which was denied on December 2, 2013. Hilton v. State,

134 S.Ct. 686 (2013).

On November 25, 2014, Hilton, represented by Robert A. Morris, Esquire, filed a 3.851

Motion for Post-Conviction Relief, raising ten claims (including sub-claims). This is the State's

Answer to the Motion for Post-Conviction Relief.

'Ring v. Arizona, 536 U.S. 584 (2002).

215
 Evidentiary Hearings

To be entitled to an evidentiary hearing on a claim, the movant must allege specific facts.

Davis v. State, 26 So.3d 519, 533 (Fla. 2009) (finding a claim of ineffectiveness to be legally

ilhul'llcicnt because it did not allege specific facts and therefore, the defendant was not entitled

to an ev1dentiary hearing on the claim, citing Jones v. State, 998 So.2d 573, 587-88 (Fla. 2008)).

The defendant ·'bears the burden of establishing a prima facie case based upon a legally valid

claim." Hannon v. State, 941 So.2d 1109, 1138 (Fla. 2006); Johnston v. State, 70 So.3d 472,483

(Fla. 2011) (explaining that where a movant presents only bare conclusory allegations on several

issues, he was not entitled to an evidentiary hearing on the claims). Furthermore, a trial com1

need not conduct an evidentiary hearing on claims that are conclusively rebutted by the existing

record. Pagan v. State, 29 So.3d 938, 955 (Fla. 2009) (explaining, that while the Florida

Supreme Couti encourages trial coutis to hold evidentiary hearings on post-conviction motions, a

hearing: is warranted only where a defendant alleges specific facts, not conclusively rebutted by

the record. which demonstrate a deficiency in counsel's performance that prejudiced the

defendant and stating that summary or conclusory allegations are insufficient); Rhodes v. State,

986 So.2d 501,513-14 (Fla. 2008) (same). Furthermore, some claims are purely a matter of law

that do not require any factual development. Claims that are meritless as a matter of law, because

there is controlling precedent against the claim, should be summarily denied. Mann v. State, 112

So.3d 1158, 1162 (Fla. 2013) (stating "because Mann raised purely legal claims that have been

previously rejected by this Cout1, the circuit court properly summarily denied relief').

216
 Post-Conviction Relief

To establish ineffective assistance of counsel, a defendant must establish both deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668,669 (1984). To demonstrate

deficient performance, the defendant must show that "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." ld. at 687. To demonstrate prejudice he must establish "that there is a reasonable

probability that, but for counsel's unprofessional e!Tors, the result of the proceeding would have

been different." !d. at 694.

There is a strong presumption that trial counsel's performance was not ineffective.

illk"lwl'l 1 Stale. 70 StUd 503, 512 (Fla. 2011); Strickland at 689. A fair assessment of an

attorney's performance requires that every effot1 be made to eliminate the distorting effects of

hindsight. to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

conduct from counsel's perspective at the time. Lukehart at 512; Strickland at 689. Judicial

scrutiny of counsel's performance must be highly deferential. Id. "Strategic decisions do not

constitute ineffective assistance of counsel if alternative courses have been considered and

rejected and counsel's decision was reasonable under the norms of professional conduct."

Lukehart at 512. An attorney can almost always be second-guessed for not doing more but that is

not the standard. Pagan v. State, 29 So.3d 938, 949 (Fla. 2009). "[A] court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action 'might be considered sound trial strategy."' Strickland at 689.

The strong presumption that counsel's performance was reasonable is even stronger when

trial counsel is experienced. See Cummings v. Sec'y, Fla. Dept. ofCorr., 588 F.3d 1331, 1356

217
(11' 11 Cir. 2009) (citing Chandler v. United States, 218 F.3d 1305, 1316 (ll'h Cir. 2000) (en

bane). In the Eleventh Circuit's words, "experience is due some respect." Chandler at 1316.

Prejudice means that there is a reasonable probability that, but for counsel's

unprofessional enors, the result of the proceeding would have been different. Strickland at 694.

A reasonable probability is a probability sufficient to undermine confidence in the outcome. "It

is not enough for the defendant to show that the enors had some conceivable effect on the

t>utcumc ur the prucccding.'· fJ at 693. This second prong does not require proof that "counsel's

deticient conduct more likely than not altered the outcome of the case." Gaskin v. State, 822

So.2d 1243, 1257, n.3 (Fla. 2002) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052) Instead,

it requires a showing that, in light of all the evidence sunounding his conviction, the conduct

renders the results of the proceeding unreliable. !d. at 1247; see also Strickland at 694.

10

218
 I. TRIAL COUNSEL WAS INEFFECTIVE IN PRESENTING A "DEFENSE" OF
INNOCENCE AND/OR REASONABLE DOUBT DURING THE GUILT PHASE
AND THEN MAKING A CONCILATORY ARGUMENT IN FAVOR OF LIFE
DURING THE PENALTY PHASE, AND DEFENDANT WAS NEVER
CONSULTED ABOUT THE CONSEQUENCES OF SUCH A DEFENSE

Hilton asser1s ineffective assistance of trial counsel for presenting a defense of innocence

and/or reasonable doubt during the guilt phase and then arguing in favor of a life sentence during

the penalty phase, essentially arguing that trial counsel presented inconsistent theories, and

furthermore, failed to consult with Hilton before presenting this defense. First, Hilton was

represented by a team comprised of three Assistant Public Defenders with extensive experience:

Maria lnes Suber, Robert S. Friedman, and Paula Saunders. Ms. Suber, lead counsel, has been a

member of the Florida Bar since 1986; Mr. Friedman has been a member since 1985; and Ms.

Saunders has been a member since 1980; all three have prior capital trial experience. Second,

trial counsel did not allude to, argue, or put on testimony or evidence in an attempt to establish

that llillon was innocent. but merely attempted to prove reasonable doubt in the State's case- a

reasonable trial strategy. (T Vol. 24, p 47-55 & Vol. 37 p 1529-1560) In fact, attorneys

commonly have their clients enter pleas of not guilty, proceed to trial, and later, plea for mercy

during the penalty phase. Third, it is the State's position that it was trial counsel's deliberate

strategy to proceed through the guilt phase, requiring the State to present admissible evidence

establishing the essential elements of the crimes charged beyond a reasonable doubt to the jury,

before proceeding to the penalty phase. There was nothing inconsistent between what was

presented at trial and at the penalty phase.

·'Because advocacy is an art and not a science, and because the adversary system requires

Jekrcncc· tu counsel's inlormed decisions. strategic choices must be respected in these

circumstances if they are based on professional judgment." Strickland at 681. Reasonable

II

219
stmtcgic decisions of' trial counsel should not be second-guessed by a reviewing court /d. at 689-

91. "Counsel cannot be deemed ineffective merely because current counsel disagrees with trial

counsel's strategic decisions." Occhicone v. State, 768 So.2d 1037, 1047 (Fla. 2000).

As stated previously in this Answer, a trial comi need not conduct an evidentiary hearing

on claims that are conclusively rebutted by the existing record. See Pagan at 955. Because the

records rebuts the allegation that trial counsel argued innocence at trial before conceding guilt

and seeking a recommendation for a life sentence at the penalty phase, this claim should be

denied.

Furthermore, Hilton has failed to establish that had he entered a plea instead of

proceeding to trial, there is a reasonable probability he would have received a different sentence

and thus, his claim fails the prejudice prong of Strickland. A plea of guilty would have resulted

in the same conviction he received from the jury. The only plausible difference in outcome

would have been the timing of the State's presentation of its evidence; the State would have

presented its evidence of Cheryl Dunlap's brutal kidnapping and murder at the penalty phase

instead of the guilt phase (and this would have been to Hilton's detriment as the evidence would

have been fresh in the jurors' minds prior to deliberating). Nonetheless, the jury would have been

presented with and considered evidence regarding the manner in which Ms. Dunlap was

kidnapped, tortured, murdered and dismembered.

I his clatm should be summarily denied because Hilton has failed to prove his allegations

of deficient perfom1ance by trial counsel, as well as the prejudice.

12

220
 II. TRIAL COUNSEL WAS INEFFECTIVE IN THEIR FAILURE TO ADVISE
DEFENDANT OF HIS RIGHT TO ENTER A GUILTY PLEA AND PROCEED
DIRECTLY TO A PENALTY PHASE

Hilton finds fault in trial counsel's alleged failure to advise him of his right to enter a

guilty plea and proceed directly to a penalty phase. Hilton, however, has failed to cite any

authority holding that trial counsel must do this. Due to the depravity ofthis case, the State chose

not to make any plea offers. Thus, trial counsel was left with the decision to advise their client of

entering a plea to the court or proceeding to trial. Proceeding to trial is a tactical decision for the

defendant and his counsel, in which many variables come into play. Since it is the State's burden

to prove its case beyond a reasonable doubt, the defense presumably strategically planned for the

possible best-case scenario outcomes involving the State failing to meet its burden; for one or

more of its witnesses to fail to appear and testify at trial; for the State to fail to prove an element

of the offenses charged; for jury nullification; or for a conviction on a lesser-included offense.

Hilton had nothing to lose by proceeding to trial. A plea would have resulted in the outcome

Hilton received- a conviction of first degree murder.

As one commentator stated,

Capital case defense counsel should be aware that there is usually some value in
putting on a reasonable doubt defense even in cases where overwhelming
evidence of guilt exists. Depending on the tone of the defense, and the role
defendant plays in it, this value will not be outweighed by the possibility of
adverse sentcncer reaction. ·rhe first benefit of a reasonable doubt defense in an
overwhelming evidence case is that the evidence of defendant's capital crimes,
and possibly even factors in aggravation, will come out during the guilt phase.
Tile rendition of a guilty verdict psychologically concludes that stage, and, at the
penalty phase, it is not likely that the prosecution will repeat its testimonial
parade. Instead, the state will probably rely on the record evidence. Although this
can still be damaging to defendant's life case, such recalled evidence tends to lose
its vividness, particularly when contrasted with penalty phase testimony favorable

13

221
 to the convicted defendant. Thus gomg through a guilt phase trial helps to
segregate and distance n·om the sentencer the prosecution's strongest case against
the defendant. Were defendant simply to admit guilt and go straight to the penalty
phase trial, the prosecution at that time would undoubtedly present much of what
it otherwise would have presented during the guilt phase.
Second, it may be possible in the course of the guilt phase trial to cross-examine
prosecution witnesses in a manner calculated to show that the defendant has
positive sides or features. For example, defense counsel might elicit hom a
detective or prison ofl1cial that the defendant was cooperative or remorseful or
had been a model prisoner. While such questioning is insufficient to defeat the
pmsccution's guilt phase case, it lays a foundation for the presentation of
llllllt!illlllg C\ idcncc at the penalty phase.
ThinJ, putting the prosecution to its guilt phase proof also lengthens the tTial and
permits the sentcncer to observe the defendant and become better acquainted with
her. Depending on defendant's general demeanor and reaction to trial events, this
may dispose the scntencer in the defendant's favor.
Finally, a reasonable doubt defense does not preclude the defendant f\·om taking
the stand, admitting the offenses, and expressing contrition or remorse. The
decision 1vhcthcr the defendant should testify can be made after the quality and
strength of the prosecution's case has been assessed. Should the prosecution's case
unexpectedly turn out to be weaker than anticipated, the defendant would have the
option of remaining silent and allowing the case to go to the jury on the issue of
reasonable doubt. If; however, the case for guilt is strong, an appropriate
admission of guilt, coupled perhaps with expressions of remorse, might have a
t~mm.tble intluence on the sentencer at the penalty phase.
h>1 the reasons enumerated above, reasonable doubt defenses are not necessarily
1nccmsistcnt with the presentation ol' a mitigating case at the penalty phase and
may not suffer from the penalty phase advocacy limitations of denial defenses
such as alibi or mistaken identity.

Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58

NYU. L Rev. 299,330-32 (1983).

Hilton argues that subjecting the jury to hearing about the gruesome and violent nature of

the murder again at the penalty phase prejudiced him. The State provided one witness in rebuttal:

14

222
Dr. Pritchard. He testified about his diagnosis of Hilton and how he arrived at that diagnosis. (T

Vol. 41, p 575) Specifically, he referred to testimony defense witnesses presented, such as

Hilton's abusive childhood (T Vol. 41, p 583), his childhood head injury (T Vol. 41, p 583), the

shooting of his step-father (T Vol. 41, p 584), his discharge from the military (T Vol. 41, p 585),

his prior marriages (T Vol. 41, p 589), his prior arrests (T Vol. 41, p 591)- none of these were

issues presented at trial. He did discuss defendant's statements regarding both the Florida and

Georgia murders, but that was in explaining how he reached his diagnosis, in rebuttal to the four

mental health witnesses presented by the defense, and in detailing why he felt Hilton appreciated

the criminality of his actions. (T Vol. 41, p 592-602) Specifically, Dr. Pritchard discussed how

Hilton described his actions as "hunting" (T Vol. 41, p 592) and the self-serving reason why

Hilton offered information about the location of Meredith's body in Georgia, that is, to obtain a

life sentence. (T Vol. 41, p 595) He also detailed why he believed Hilton dismembered the

bodies, removed the victim's clothing and poured bleach on Meredith's body- to cover the

murders up. (I Vol. 41, p 600) Dr. Pritchard was simply rebutting testimony presented by the

defense during the penalty phase. The jury was not twice submitted to gruesome photos or the

hotTifk details of what the victims endured while held captive by the defendant.

Even if some of Dr. Pritchard's testimony reiterated the repugnant nature of Hilton's

actions. it is the State's position that his actions alone resulted in a recommendation of death, not

a recitation of the fact that the two victim's bodies were dismembered.

More importantly, Hilton knew of his right to plea from his case in Georgia. In that case,

for the killing of Meredith Emerson, he chose to enter a plea in exchange for a life sentence on

January 31,2008. (T Vol. 38, p 48) He entered this plea shortly before being retumed to Florida

15

223
to l~tcc the charges in the instant case. There is no doubt, based on his plea to the case in Georgia

that he was aware of his ability to enter a plea instead of proceeding to trial.

And, again, Hilton is unable to show prejudice. The end-result would have been the same

as the jury's verdict- a conviction for first degree murder.

This claim should be summarily denied because Hilton has failed to prove his allegations of

def'icient perf(lrmancc by trial counsel, as well as prejudice.

Ill. TRIAL COUNSEL WAS INEFFECTIVE BY PROVIDING AN INADEQUATE

DEFENSE TO HILTON AS A RESULT OF RANCOR, DISHARHMONY,
DISCORD, ENMITY, AND HOSTILITY AMONG DEFENSE COUNSEL AND
WITHIN THE OFFICE OF THE PUBLIC DEFENDER

A. COUNSEL WAS INEFFECTIVE AS A RESULT OF THE

OVERWHELMING CASELOAD ASSIGNED TO THE OFFICE OF THE
PUBLIC DEFENDER AS WELL AS INDIVIDUAL ATTORNEYS AND THE
APPORTIONMENT OF CASES AMONG THE ATTORNEYS ASSIGNED
TO THE CAPITAL SECTION

Hilton submits that lead trial counsel in this case expressed an inability to properly

represent him due to over-extension and an overwhelming caseload. However, this vague

allegation does not comport with the test announced in Strickland. The Florida Supreme Court

addressed this issue in Dennis v. State, 109 So.3d 680, 691 (Fla. 2012) when it affirmed the trial

court's summary denial of a claim of ineffective assistance of counsel. Dennis argued that trial

counsel was ineffective for failing to secure a second chair and for representing other clients

while representing him. The Court found the claim to be facially insufficient as Dennis failed to

include any allegations regarding the prejudice prong of Strickland. Dennis generally claimed

that trial counsel failed to adequately prepare for his trial, but he did not include any allegation

that there is a reasonable probability that, but for trial counsel's failure to secure a second chair

and his failure to represent only Dennis, the result of Dennis' trial would have been different or

that confidence in the outcome was undermined.

16

224
 Vague and conclusory allegations, lacking specificity, are insufficient to warrant relief.

Doorha/ v. State, 983 So.2d 464, 482-85 (Fla. 2008). In Doorbal, the trial court summarily

dc111cd lm claims without an evidentiary hearing because Doorbal had failed to allege a specific

omission or overt act upon which his ineffective assistance claim was based. An example

addressed by the Supreme Court was Doorbal's claim that the death of trial counsel's father

immediately prior to trial, as well as the illness of his mother, interfered with his representation

of Doorbal and resulted in ineffective assistance. Doorbal's claim is not unlike the conclusory

allegation Hilton presents when he alleges that trial counsel was unable to adequately represent

him because of over-extension and an overwhelming caseload. See also Ragsdale v. State, 720

So.2d 203, 208 (Fla. 1998) (finding that trial judge properly denied evidentiary hearing where

defendant provided insufficient facts as to "how the outcome would have been different had

counsel acted otherwise"): Kennedy v. State, 547 So.2d 912,913 (Fia.1989) (holding that a mere

eonclusory allegation of ineffective assistance is insufficient to warrant an evidentiary hearing.)

In order for a claim of ineffective assistance of counsel to be considered meritorious, a defendant

must establish two components under Strickland; Stephens, 748 So.2d 1028, 1033 (Fla. 2000).

First, a defendant must establish conduct on the part of counsel that is outside the broad range of

competent perfom1ance under prevailing professional standards. Kennedy v. State, 547 So.2d

912, 913 (Fla.1989). Second, the deficiency in counsel's performance must be shown to have so

affected the fairness and reliability of the proceedings that confidence in the outcome is

undermined. !d.; see also Rutherford v. State, 727 So.2d 216, 219 (Fla.l998) ("[T]he benchmark

illl' JUdging any claim of ineffectiveness must be whether counsel's conduct so undem1ined the

proper functioning of the adversarial process that the trial cannot be relied on as having produced

ajust result.") (quoting Strickland, 466 U.S. at 686).

17

225
 Ineffectiveness under Strickland requires more than just a showing that tlial counsel was

overworked. Hilton must demonstrate with specificity "that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

.·\n>c>lJmcnt." Strickland at (lH7. Even if a defendant meets that threshold, he or she must also

prove that such an error prejudiced the defense. !d. Hilton has not demonstrated how this

rendered trial counsel's performance deficient or how it caused prejudice.

Counsel has neglected to enunciate the conduct on the part of lead counsel that was

outside the broad range of competent performance under prevailing professional standards and

has failed to show that the det!ciency so affected the fairness and reliability of the proceedings

that confidence in the outcome is undermined. A mere blanket statement that an overwhelming

caseload existed is insufficient.

While addressing Doorbal's amended motion for post-conviction relief, which did not

seck to lllli'oducc nc\\ claims, but rather, supplemented existing claims with additional facts, the

Florida Supreme Colll1 reiterated its prior holding that '[a] defendant may not raise claims of

ineffective assistance of counsel on a piecemeal basis by refining his or her claims to include

additional factual allegations after the postconviction court concludes that no evidentiary hearing

is required." DooriJa/, 983 So.2d at385, quoting Viningv. State, 827 So.2d 201,212 (Fla. 2002),

/)o()fh,ti, %_1 So.2d at 385 (concluding that trial court did not err in denying rehearing "for the

lirst time made lllCtual allegations relating to his claim that counsel was ineffective in

investigating and presenting mental health mitigating evidence.") The DooriJal Comi concluded

that his amended motion "contain[ ed] the type of post-Hu;Thearing 'piecemeal' supplementation

that 11c condemned in Vining .. Door/Jail, 827 So.2d at 212.

18

226
 Furthermore. the record reflects that there were nearly thirty-six months between the

11\ing or the complaint (February 28, 2008) and start of jury selection (January 31, 2011).

3
During that time, llilton sought and received a number of continuances This was ample time,

I'm three attorneys assigned to Hilton's case, to prepare the case for trial, even in light of a heavy

eascload. The record conclusively rebuts this allegation. Sef Roherts v. State, 568 So.2d 1255,

125~ (detendant must allege specitk facts that are not conclusively rebutted by the record to be

entitled to an evidentiary hearing on a claim of ineffective assistance).

Because a mere conclusory allegation of ineffective assistance is insufficient to warrant an

evidentiary hearing, and because Hilton has failed to prove his allegations of deficient

performance by trial counsel, as well as prejudice, this claim should be summarily denied

B. COUNSEL WAS INEFFECTIVE BECAUSE THE ENTIRE DEFENSE TEAM

WAS REASSIGNED TO DIFFERENT ROLES WITHIN DAYS OF
HILTON'S TRIAL LEAVING THEM EACH INDIVIDUALLY INCAPABLE
OF BEING EFFECTIVE IN THEIR NEW AREA OF ASSIGNMENT

Hilton has L1iled to establish that conduct on the pa11 of counsel that is outside the broad

'"""' ul· cutnpctctll pcrllHmancc under prevailing professional standards was taken and that the

deficiency in counsel's pcrlclrmance so aff'ected the fairness and reliability of the proceedings

that con11dencc in the outcome is undermined. If in fact, the trial team was reassigned to different

roles in the trial, the trial still proceeded, witnesses were still examined and cross-examined,

evidence was still admitted. The trial team consisted of three senior attomeys with a plethora of

3
!n <:~dditton to the continuances granted pre-trial, Hilton's lead attomey requested a continuance on the morning
jury selection was scheduled to begin, The basis for her continuance was that she needed additional time to discuss
the case and evidence with Hilton. The trial court denied this request, flnding that counsel had four more days to
have these discussions with Hilton. (T. VoL 17, p 7-8) Counsel did not seek a continuance because she was not
prepared, had not concluded discovery, had not met with or deposed witnesses, had not reviewed the evidence, or
had not flied the necessary pleadings, etc, FUlihermore, the tlia! docket is riddled with numerous motions filed by
tria! counsel as well as hearings having been held on same, The evidence shows that Hilton's case had been
<Hicqu<lt~'l)· prcp<ll"ed and litigated pre-tri£J!.

19

227
experience. Surely, they could adapt to a change in roles, especially in light of the fact that they

had been appointed to represent Hilton nearly three years prior.

Again, the State submits that a mere conclusory allegation of ineffective assistance is

insufficient to wanant an evidentiary hearing. Kennedy v. State, 547 So.2d 912, 913 (Fia.1989).

Not only has counsel made a broad allegation of ine!Tective assistance of trial counsel based on

re-shuffling of the trial team's roles within days of trial, he has failed to demonstrate how Hilton

"'" prc.JudJccd by th1s movement.

As such, this claim should be summarily denied.

C. COl\'SEL FOR THE OFFENSE REJECTEn AND FAILED TO UTILIZE

CRUCIAL MITIGATIO\' [)lJRING THE PENALTY PHASE THAT WAS
DEVELOPE[) BY THE MITIGATION EXPERT ASSIGNED TO THE CASE

Hilton argues that trial counsel failed to utilize crucial mitigation during the penalty

phase that had been developed by the mitigation expert. The record shows otherwise.

First, Hilton takes issue with a Power Point presentation of his life. Tlial counsel intended

to use and attempted to publish to the jury the mitigation expert's Power Point presentation of

llilton's life. However, the trial court sustained several of the State's objections to the slides

c'<llltained within the presentation as attempting to elicit sympathy from the jury, irrelevant, or

prejudicial. (T Vol. 40, p 354-377) It would have been extremely clitTicult to modify the

presentation, removing most of the slides, minutes before it was expected to be presented to the

.Jury. It also would not have carried the weight it had initially because most of the slides would

have been removed. As such, trial counsel opted not to present the presentation, stating "we can't

present this in a Ji·agmentecl and disjointed manner.'' (T Vol. 40, p 375) The bottom line is that

the presentation contained numerous slides which the trial cout1 properly ruled were

inadmissible. This was not a matter of trial counsel simply deciding not to present it. (T Vol. 40,

20

228
p 354-377) Rather, the mitigation expert, who is evidently not well-versed in evidentiary matters,

prepared a presentation which was objectionable on several grounds and thus, inadmissible.

Second, Hilton alleges that the mitigation expert developed a chronological history of his

medical and mental health history. as well as an extensive list of witnesses. Hilton's medical and

mental history was testified to by a number of witnesses presented by the defense. At least two

interviews conducted by the mitigation specialist, Betty Fuentes, were admitted into evidence

and published to the jury; the first was an interview she conducted of"J"homas L. Perchoux (T

Vol. 40, p 390) and the second was of Jin Hee Lee. (T Vol. 41, p 554) A third interview, that of

Ot1Jcer Steve King of the Duluth City Police Department, was likely conducted by her (as the

witness refers to a "'ma'am" in answering the interviewer's question), however the interviewer

did not specifically identify herself on the recording. (T Vol. 41, p 530)

In footnote 7, Hilton indicates that the mitigation expert's medical history of Hilton

included evidence that a l"ormer doctor of Hilton's ·'believed that the Defendant had 'relapsing

remitting Multiple Sclerosis' and the doctor wrote a note to a federal court seeking to excuse him

li·omjury duty opining that the Defendant had a 'form of Multiple Sclerosis."' (Motion p. 16)

First, this footnote does not indicate that Hilton was actually diagnosed with Multiple

Sclerosis. only that the doctor "believed" he had "relapsing remitting Multiple Sclerosis."

Second, this is a belief from the same doctor who incorrectly prescribed Ritalin and Effexor to

Hilton which resulted in the doctor's disciplinary action by the Georgia State Board of Medical

Examiners and which was argued, to the jury, to have caused Hilton's mental decline and his

subsequent actions in committing the murders of Cheryl Dunlap and Meredith Emerson. Third, it

docs not indicate how this evidence was to be introduced. Was the doctor going to be called or

was this more hearsay in the fonn of unauthenticated records, which would have presumably

21

229
been obJected to, like most of the PowerPoint slides? Fourth, it would have been foolish to admit

this evidence when two other doctors presented by Hilton's defense testified that he did not have

Multiple Sclerosis and actually self-diagnosed the condition. It was simply good trial strategy in

opting not to present conflicting evidence or testimony, indicating that Hilton did have Multiple

Sclerosis. That evidence or testimony would have effectively diluted the credibility of the other

two doctors, who opined that Hilton did not have Multiple Sclerosis, and further that he suffered

from various mental ailments.

Hilton boldly concludes that trial counsel felt hopeless at the conclusion at the guilt

phase and this hopelessness affected their ability to properly represent Hilton at the penalty

phiise. (Hiler than this statement. there is nothing in the record that indicates that such a sense of

hopelessness distorted counsel's professional judgment. ·rheir strategy was well within the range

of professionally reasonable judgments. 'T'hey presented several witnesses and evidence, which

resulted in the trial court finding one statutory mental mitigating factor and that Hilton had

established eight of the ten mitigating factors he presented under the catch-all provision. Hilton

at 749-50. Simply stated, trial counsel put on what evidence they could in Hilton's defense with

what they had.

Counsel is not ineffective for strategic decisions that, in hindsight, did not work to the

defendant's advantage. Mansfield v. State, 911 So.2d 1160, 1174 (Fla. 2005). Furthermore,

"'strategic decisions do not constitute ineffective assistance of counsel if alternative courses have

been considered and rejected and counsel's decision was reasonable under the norms of

professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fia.2000). See also Brown v.

S!ii/e, 894 So.2d 137, 147 (Fla.2004); Howell v. State, 877 So.2d 697, 703 (Fla. 2004).

22

230
 The aggravating circumstances (Hilton was previously convicted of a violent felony -

gwen great weight: the murder was committed in the course of a kidnapping - given great

weight: the murder was committed to avoid mTest - given moderate weight; the murder was

especially heinous, atrocious, or cruel (HAC) - given great weight; and the murder was cold,

calculated, and premeditated (CCP) - given great weight) were so overwhelming that no

substantial prejudice resulted from the absence, at the penalty phase, of the mystery evidence the

mitigatiOn expert developed but was allegedly not presented.

The allegation that trial counsel failed to present a 'wealth of information' in mitigation is

vague and conclusory. Aside from mention of the PowerPoint presentation, no other piece of

evidence or witness has been specifically identified. Consequently, this claim should be

summarily denied. See Dennis v. State, 109 So.3d 680, 691 (Fla. 2012); Doorbal v. State, 983

So.2d 464, 482-85 (Fla. 2008).

IV. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE

AND PRESENT EVIDENCE RELATED TO DEFENDANT'S EARLY
CHILDHOOD DEVELOPMENT, BRAIN TRAUMA, INJURY, CONGNITIVE
IMPAIRMENT AND MENTAL HEALTH

Hilton falls short of meeting his burden under Strickland as it relates to this claim.

Contrary to the assertion that trial counsel failed to properly investigate matters related to

Hilton's early childhood development, brain trauma, injury, cognitive impairment and mental

health, trial counsel presented four mental health experts during the penalty phase who testified

to these matters as they related to their opinions regarding Hilton's mental health at the time of

the murders. Not only had trial counsel thoroughly investigated these matters, but they then

provided them to the four mental health experts to assist them in evaluating Hilton. Furthermore,

trial counsel presented the testimony of several lay witnesses who testified about Hilton's

childhood and apparent mental health issues. It should also be noted that Hilton concedes this

23

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matter in his own Motion for Post-Conviction Relief on page 25, "[i]n the instant case, the

Defendant presented extensive evidence of mental health issues, defect, injury and impairment."

First, trial counsel presented the testimony of Dr. Joseph Wu. Dr. Wu, testified that he

was a medical doctor at the University of California, Irvine, College of Medicine, having been

with the college since 1988; was licensed to practice in the State of California; was the clinical

director of the Brain Imaging Center; and was an Associate Professor in residence in the

Department of Psychiatry and Human Behaviors. (T Vol. 38, p 98) He further testified that he

had published over fifty peer-reviewed atiicles on brain imaging and neuropsychiatric disorders

and specialized in the area of neuropsychiatry. (T Vol. 38, p 99) At the time of his testimony, he

had testified as an expert in the field of neuropsychiatry on at least thirty occasions. (T Vol. 38, p

99-1 00) Dr. W u relied heavily on Hi !ton's childhood head injury which caused brain damage at

age ten, his "emotional abuse, rejection," and the mismanagement of the Ritalin prescribed

dur1ng the years preceding the murders, in concluding that Hilton's ability to exercise judgment

and impulse control were significantly impaired. (T Vol. 38, p 135)

Second, trial counsel presented the testimony of Dr. Charles Josh Golden, a licensed

psychologist, with nearly thirty-five years experience, and a subspecialty in neuropsychology. (T

Vol. 39, p 159) He testified that he taught at Nova Southeastern University in the doctoral-level

teaching program and devoted approximately ten percent of his time to his private practice. (T

Vol. 39, p 159-60) He also published over three hundred books, chapter and articles and had

testified as an expert well over one hundred times. (T Vol. 39, p 160) He conducted

neuropsychological testing of Hilton, as well as an interview. (T Vol. 39, p 190) He learned that

I Iii tun 11as uncoml<>nablc around people- he couldn't relate to others. (T Vol. 39, p 187) He

learned that Hilton had depressive episodes and previously attempted suicide. (T Vol. 39, p 190)

24

232
He had manic episodes. (T Vol. 39, p 191) He learned that Hilton had "serious problems as a

child." He testified that Hilton had a brain injury; he had rheumatic fever as a child; his father

walked out on him; his mother remarried a man he despised; he did poorly in school; and he

moved from school to school. (T Vol. 39, p 191-2) Dr. Golden diagnosed Hilton with organic

personal tty disorder, which he determined was produced by a combination of brain injury and

social events (T Vol. 39, p 193), finding that his ability to conform his conduct to the

requirements of law was substantially impaired. (T Vol. 39, p 195) Dr. Golden, on cross-

examination, agreed that Hilton's drug abuse and alcohol abuse throughout his lifetime also

contributed to his diagnosis. (T Vol. 39, p 204)

Third, trial counsel presented the testimony of Dr. Abbey Strauss, a psychiatrist with a

medical degree. (T Vol. 39, p 215) Dr. Strauss testified that he was licensed to practice in the

State of Florida since 1985. (T Vol. 39, p 216) He had testified as an expert somewhere between

two hundred and two hundred fifty times. (T Vol. 39, p 216) Dr. Strauss was specifically asked

abuut \\hat he kne" of' Hilton's background. He explained that he was aware of Hilton's

"horrible. horrible childhood," (T Vol. 39, p 236) including his parents' divorce; his relationship

with his step-father; his mother's rejection of him for his step-father; his time in foster care; the

lack of bonding between he and his mother or any parental figure; the fact that he shot his step-

father at age fourteen; and the lack of relationship between he and his biological father. (T Vol.

39, p 237-9) He explained that the failure of his mother to be a prominent figure in his life

resulted in the Oedipus complex (T Vol. 39, p 244) and described how that affected him as he

progressed into adulthood. (T Vol. 39, p 247-8) He testified to knowledge of the mismanagement

of the Ritalin and Effexor prescribed during the years preceding the murders. (T Vol. 39, p 240)

lie rl'licwcd the deposition of Hilton's former employer, Mr. Tabor, who provided insight into

25

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the change Hilton underwent during the time he was taking the combination of Ritalin and

H!Cxor. (I Vol. 39, p 242) He had a !so been given copies of Hi !ton's military discharge records.

(T Vol. 39, p 243) Dr. Strauss concluded with a diagnosis of antisocial personality disorder and

schizoaffective disorder, which had existed for a "very, very long time in his life" emphasizing

that the situations in his life "mostly triggered by the inappropriate prescriptions of the Ritalin

and Effexor that just pushed him over the edge." (T Vol. 39, p 260)

Fourth, trial counsel presented the testimony of Dr. William Alexander Motion, Jr., a

Professor Emeritus of Pharmacy at the Medical University of South Carolina, the College of

Pharmacy and Clinical Associate Professor of Psychology and Behavioral Sciences in the

Department of Psychiatry at the Medical University of South Carolina, with twenty-eight years

experience, specialtzing in psychopharmacology and a subsection of addictions. (T Vol. 40, p

299-300) He testified that he authored forty-six peer-reviewed publications, including one about

the phenomena of what occurs when people abuse Ritalin. (T Vol. 40, p 303) He had testified as

an expert in psychopharmacology addictions and psychopharmacy practice just over sixty times.

Dr. Mm1on testified that the Office of the Public Defender provided him with a number of

documents and records prior to meeting with Hilton. (T VoL 40, p 305) He also reviewed a

number of tapes, videotapes (of law enforcement interviews and home videos taken by Hilton

himself) (T VoL 40, p 331), and audiotapes and transcripts in order to indirectly observe Hilton

prior to evaluating Hilton. (T VoL 40, p 306) Dr. Morton was aware of Hilton's prescription

dosages and the dates during which he was prescribed Ritalin and Effexor. (T VoL 40, p 312) He

also reviewed Dr. Deicher's disciplinary records from the Georgia State Board of Medical

Examiners and the deposition of Hilton's former employer, Mr. Taber. (T Vol. 40, p 326) He

was familiar with Hilton's history of extensive substance abuse as an adolescent and young

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adult. (T Vol. 40, p 342) He interviewed Hilton on January 29, 2010. (T Vol. 40, p 333) In Dr.

Morton's opinion, Hilton's prescribed drug combination of Ritalin and Effexor would be

expected to produce profound and unwanted side effects and behavioral changes. (T Vol. 40, p

337)

Trial counsel also presented the previously-videotaped statement of Victorine Rowe, the

neighbor of Hilton and his mother in April, 1951. (T Vol. 40, p 379) She testified about hearing

Hilton's mother screaming and learning that a Murphy bed had fallen on Hilton, splitting his

head open. She described the injury as appearing as if Hilton had been scalped. (T Vol. 40, p

380)

Next, trial counsel presented the previously-videotaped statement of Thomas Perchoux.

He testified that he became acquainted with Hilton as a result of his wife having worked with

llilton's mother in the late 1950's through early 1960's. (T Vol. 40, p 392) Hilton's mother

subsequently asked Mr. Pcrchoux and his wife to take care of Hilton because she was having

problems with him and he was having problems with her husband, Hilton's step-father. (T Vol.

40, p 394-5) He was told that Hilton had been seeing a psychiatrist, but didn't know why. (T Vol.

40, p 395) Hilton's mother and step-father never came to visit Hilton while he was in the

Perchoux's care. (T Vol. 40, p 400) After some time had passed, Hilton's mother returned for

him and he never saw Hilton again. (T Vol. 40, p 400)

Trial counsel presented an audio recording of Hilton's mother. Cleo Debag, who was

deceased at the time of the trial. Ms. Debag testified that Hilton never knew his biological father.

(T Vol. 41, p 420) She stated that Hilton's step-father, Nilo, mentally abused and often yelled at

Hilton. (T Vol. 41, p 430) She advised that Hilton changed schools often before reaching the

sixth grade (T Vol. 41, p 434) and often stayed at school for as little as three to four months

27

235
before they moved to another city. (T Vol. 41, p 441) She spoke about some childhood injuries

Hilton suffered, including a broken hand and the injury to his head from the Murphy bed

accident. (T Vol. 41, p 444-45) She discussed two failed marriages. (T Vol. 41, p 460, 469-70)

She volunteered that she had not talked to her son for the ten years prior to the murders after he

became angry with her for not giving him money. (T Vol. 41, p 476) She detailed the incident in

which Hilton shot his step-father (T Vol. 41, p 484), which led to Hilton being sent to juvenile

hall (T Vol. 41, p 487) before going to stay with a friend. (T Vol. 41, p 485) He did not return

home until Ms. Debag told the authorities that she would leave her husband to regain custody of

Hilton. (T Vol. 41, p 487) She also relayed an incident during which she miscarried and had to

have Hilton call the doctor's office. She had to leave Hilton at their apartment alone while she

obtained medical treatment. She described him as being "scared to death." (T Vol. 41, p 489)

Matia Dabag Castelli, the sister of Nilo Debag, Hilton's step-father, testified for Hilton.

%,· c~rl:1incd that Nilo didn't love Hilton: didn't associate much with him; and in her opinion,

was jealous of Hilton. (T Vol. 41, p 507-8) She also described Hilton's mother as not being a

loving or affectionate mother and her relationship with Hilton as "cold." (T Vol. 41, p 508)

Sandy Herman Carr, Hilton's junior high school girlfriend also testified on his behalf. (T

Vol. 41, p 513) She testified that Hilton and his step-father did not get along at all. (T Vol. 41, p

514) She testit!ed about her knowledge of Hilton shooting his step-father at the age of fourteen

and subsequently being sent to foster case as a result. She described how Hilton appeared more

relaxed while in foster care than he had been at home with his mother and step-father. (T Vol.

41, p 516)

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236
 Roy Cave, a high school friend of Hilton's testified about their tenure in a band together.

(T VoL 41, p 519) He also described how they enlisted in the Atmy and went to boot camp

together. (T VoL 41, p 520)

The defense also presented the testimony of Stefanie Durham, the daughter of Constance

Wagner, with whom Hilton moved in, in 1981, when she was thirteen years of age. (T Vol. 41, p

523-4) The lived together as a family for approximately two years. She described Hilton as the

ideal father figure, making sure her needs were attended to. (T VoL 41, p 524-5)

An audio recording of an interview taken of Officer Steve King of the Duluth Police

Department on November 15, 2010 was presented to the jury. (T VoL 41, p 529-30) He

described an incident, on February 25, 2006, during which he responded to a call of a suspicious

person and encountered Hilton. (T Vol. 41, p 532-4) He described Hilton as agitated and "a little

bit confused, like a little bit out of it." (T VoL 41, p 534)

James Scott Gillespie was called on Hilton's behalf and testified that he, along with

approximately thi11y others. were fishing in an area known as Cooper's Creek in Northern

Georgia in June, 2007. (T Vol. 41, p 540) He walked up onto Hilton, where he witnessed him

slumped over, rocking back and forth, sharpening a knife. He spoke to Hilton, but Hilton simply

muttered back to his dog. (T VoL 41, p 541)

Mary Pat King testified that she worked as a law enforcement officer (T Vol. 41, p 549)

with the United Forest Service in November, 2007 when she saw Hilton walking his dog at 7:40

p.m. in the Apalachicola National Forest, which was unusual. (T VoL 41, p 546-7) She stopped

and spoke with him for five to fifteen minutes. Hilton did not appreciate her contact and insisted

she was hassling him. He commented that he did not like the government and in general, acted

negative and hostile. (T VoL 41, p 550) After her encounter, she made a notation in her Jog book

29

237
that she had contact with a "Signal 20," which she defined as a crazy person. (T Vol. 41, p 547-

8)

A video-recorded interview, dated December 30, 2010, of Jin Hee Lee, the operator of a

laundromat in Cambridge, Georgia was played. Mr. Lee stated that Hilton had been a regular

customer of his laundromat for at least three or four years; he remembered him because of his

dog (T Vol. 41, p 555-7) In 2007, he noticed a physical change in Hilton, leading him to believe

Hilton had been drinking. (T Vol. 41, p 559) Hilton denied drinking. (T Vol. 41, p 559) He

explained Hilton's appearance and behavior was different than what he had experienced in the

years prior. (T Vol. 41, p 558)

Not only did trial counsel thoroughly investigate Hilton's early childhood development,

brain trauma, injury, cognitive impairment and mental health, they then provided that

information to four different mental health exper1s who used that information in evaluating

Hilton and subsequently testified at the penalty phase as to how those matters played a role in

their evaluations and findings/diagnoses.

In addition to the testimony presented by the four mental health experts, trial counsel also

admitted Hilton's military discharge records, as well as disciplinary records from the Georgia

State Board of Medical Examiners regarding the Ritalin and Effexor which were improperly

prescribed to Hilton by Dr. Deicher in the years preceding the murders. Trial counsel also

presented the testimony, either previously-recorded or live, of several lay witnesses, including

lamily members, persons who played an important role in Hilton's childhood, his junior high

girlti·iend and high school band mate.

"To be entitled to an evidentiary hearing on a claim of ineffective assistance. the

ck!CnJant must allege specific t~tcts that are not conclusively rebutted by the record and which

30

238
demonstrate a deficiency in performance that prejudiced the defendant." Roberts v. State, 568

So.2d 1255, 1259 (Fla.l990). As to this claim, the record is replete with the evidence counsel

argues is Jacking.

Hilton has failed to establish that had more detailed evidence of Hilton's 1961 arrest for

shooting his step-father and subsequent time in foster care been offered during his penalty phase

trial, there is a reasonable probability he would have received a different sentence and thus, his

claim fails the prejudice prong of Strickland.

The aggravating circumstances (Hilton was previously convicted of a violent felony-

gtven great weight; the murder was committed in the course of a kidnapping - given great

weight; the murder was committed to avoid an·est - given moderate weight; the murder was

especially heinous, atrocious, or cruel (HAC) - given great weight; and the murder was cold,

calculated, and premeditated (CCP) - given great weight) were so oveJWhelming that no

substantial prejudice resulted from the absence, at the penalty phase of, any additional evidence

of Hilton's early childhood development, brain trauma, injury, cognitive impairment and/or

mental health.

Thus, this claim should be summarily denied.

V. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE

DEFENDANT'S ACTUAL MENTAL HEALTH AILMENT AND DIAGNOSIS
AND PRESENT EVIDENCE DURING THE PENALTY PHASE RELATED TO
THE SPECIFIC DIAGNOSIS AND CONDITION

Counsel submits that Hilton was previously diagnosed with Multiple Sclerosis. But there

is no actual medical diagnosis to support this. Furthetmore, two of the defense's own witnesses

tcsti l'icd at the penalty phase that Hilton diagnosed himself with Multiple Sclerosis for symptoms

he was experiencing that were actually related to depression. Specifically, Dr. Wu testified,

"Then he started to have episodes of extreme fatigue. And he thought that he had multiple

31

239
sclerosis. He tried to self-diagnose himself. ... And again, I think what was happening is that he

was starting to become more depressed in addition to having this kind of downward deteriorating

course of a schizo-affective patient." (T Vol. 38, p 126)

Dr. Golden testified similarly. stating, "He self-diagnosed himself with multiple sclerosis

thinking that the symptoms that I see as being depression were the symptoms of a neurological

disorder. There is no evidence he has actually- neurologically has multiple sclerosis. But a lot of

the symptoms like he can't get out of bed, his legs feel leaded, he feels unable to move for long

periods of time, those are symptoms of severe depression." (T Vol. 39, p 191)

Trial counsel had Hilton evaluated by four mental health experts with extensive and

varying experience. It is doubtful that all four failed to diagnose Multiple Sclerosis and even

more, that two would specifically rule that diagnosis out. Simply stated, Multiple Sclerosis was

never diagnosed because it was not an ailment that Hilton was afflicted with and cannot now be

used as an argument for ineffective assistance.

Even if Hilton had multiple sclerosis, it did not impede his ability, at sixty-one years of

age, to kidnap, chain, torture, kill, decapitate and dismember Cheryl Dunlap and a few weeks

later, to kidnap, torture, kill and decapitate Meredith Emerson, nor did it impede his ability to put

thought into covering his tracks after each brutal murder and then to offer a self-serving, detailed

cun!Cssion about his kidnapping and killing of Meredith in exchange for a life sentence from the

State of Georgia.

The four defense mental health experts testified on Hilton's behalf that he had been

afflicted with some sort of mental illness. The trial court accepted this testimony and gave it

some weight in finding one statutory mental mitigating factor- that at time of Dunlap's murder,

Hilton was under extreme emotional distress.

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 Lastly, Hilton's claim fails the prejudice prong of Strickland because he cannot establish

that had the evidence been offered during his penalty phase trial, there is a reasonable probability

he would have received a different sentence. Again, the aggravating circumstances (Hilton was

previously convicted of a violent felony given great weight; the murder was committed in the

course of a kidnapping - given great weight; the murder was committed to avoid arrest - given

moderate weight; the murder was especially heinous, atrocious, or cruel (HAC) - given great

weight; and the murder was cold, calculated, and premeditated (CCP)- given great weight) were

so overwhelming that no substantial prejudice resulted from the absence, at the penalty phase, of

any evidence of Hilton having multiple sclerosis.

I IllS claim is meritless and as such, should be summarily denied.

VI. HILTON'S EXECUTION WOULD VIOLATE THE EIGHTH AMENDMENT'

A. EXECUTING THE MENTALLY ILL CONSTITUTES A VIOLATION OF THE

EIGHTH AMENDMENT'S PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENT

Hilton contends that his execution would violate the Eighth Amendment because of his

mental illness, brain damage, bipolar disorder, anxiety disorder, depression and multiple

sclerosis at the time of the murder. Assuming that he was afflicted with all of these conditions,

Power v. State, 992 So.2d 218 (Fla. 2008) holds that those alleged diagnoses would not serve as

a bar to execution. "[N]either this Court nor the Supreme Court has recognized mental illness as

a pn se bar to executton." !d. at 222; see Johnston v. State, 27 So.3d II (Fla. 2008) (finding that

Johnston's reliance on Roper v. Simmons, 543 U.S. 551 (2005) and Atkins v. Virginia, 536 U.S.

304 (2002) was misplaced when he was neither a minor nor one who was insane or mentally

4
!n order to avoid any confusion on the part of the reader, this claim is consecutively numbered as VI, although
counsel numbered his as VII in his Motion for Post Conviction Relief.

33

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retarded); Lawrence v. State, 969 So.2d 294, 300 (Fla. 2007) (rejecting proposition that the Equal

Protection C'lause requires extension of Atkins to the mentally ill due to their reduced

culpability); Simmons v. Stqte, 105 So.3d 475, 511 (Fla. 2012) (holding claims that defendants

with mental illness must be treated similarly to those with mental retardation due to reduced

culpability to be without merit). "Instead, mental illness can be considered as either a statutory

mental mitigating circumstance if it meets the definition (i.e., the crime was committed while the

dckndant "was under the influence of extreme mental or emotional disturbance") or a

nonstatutory mitigating circumstance. Such mental mitigation is one of the factors to be

considered and weighed by the court in imposing a sentence." Power at 222. That was the case

here; as Hilton concedes in his own motion, the trial court was presented with "extensive

evidence of mental health issues, defect, injury and impairment." (Motion, p. 25) The trial court

considered that evidence and found that Hilton was under extreme emotional distress at the time

of the murder; the trial court also gave some weight to the mitigating factor of Hilton's childhood

brain injury, but found that the factor that Hilton suffered from severe mental defects was not

proven. However, no evidence whatsoever was presented that he was mentally retarded.

The Florida Supreme C'ourt, in deciding Spencer v. State, 691 So.2d 1062, 1064 (Fla.

1996). held that in reviewing proportionality, "we will not disturb the sentencing judge's

determination as to 'the relative weight to give to each established mitigator' where the ruling is

supported by competent, substantial evidence in the record." The Court also held that it will also

"anirm the weight given an aggravator if based on competent, substantial evidence." Blake v.

Stat~. 972 So.2d 839, 846 (Fla. 2007). The Florida Supreme Court requires that the death

penalty be "reserved only for those cases where the most aggravating and least mitigating

circumstances exist.'' Terry v. State, 668 So.2d 954, 965 (Fla. 1996). This is the case here.

34

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 Should a detennination be reached that Hilton is incompetent to be executed at or near

the time of his execution, his execution would undoubtedly be stayed for further examination,

pursuant to F.S. § 922.07 (2014). See Ford v. Wainwright, 451 So.2d 471 (Fla. 1984) (finding

tlwt th~ statutory procedure is now the exclusive procedure for determining competency to be

executed). Thus, Hilton's claim may be best described presently as an unripe Ford claim.

Consequently, Hilton's claim should be summarily denied.

B. FLORIDA'S APPLICATION OF DEATH PENALTY IS ARBITRARY AND

CAPRICIOUS BECAUSE IT ALLOWS A SIMPLE MAJORITY OF THE JURY
TO RECOMMEND DEATH AND THE TRIAL JUDGE TO DISREGARD A LIFE
SEC'<TENCE RECOMMENDATION

Hilton attacks Florida's capital sentencing statute, which authorizes a death sentence

recommendation by a bare majority vote and allows a trial judge to disregard a jury's life

sentence recommendation, as arbitrary and capricious. This claim should have been raised on

direct appeal. Since it was not, it is barred in a 3.851 proceeding. "Issues which either were or

could have been litigated at trial and upon direct appeal are not cognizable through collateral

attack.'' Farina v. State, 937 So.2d 612,617 (Fla. 2006).

Additionally, Hilton's argument is inapplicable where he obtained what he requests, a

unanimous finding of death. Thus, Hilton has no standing to make this argument. See, e.g.,

Hollingsworth v. Peny, 133 S.Ct. 2652, 2662 (2013) ("To have standing, a litigant must seek

relief for an injury that affects him in a 'personal and individual way;"' quoting Defenders of

Wildlife, 504 U.S. 555,560 n. I (1992)); Lewis v. Casey, 518 U.S. 343,357 (1996) ("The remedy

must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has

established"); Rakas v. Illinois, 439 U.S. 128, 134, 139, 134 (1978) ("A person who is aggrieved

by an illegal search and seizure only through the introduction of damaging evidence secured by a

search of a third person's premises or property has not had any of his Fourth Amendment rights

35

243
infringed;" "the issue of standing involves two inquiries: first, whether the proponent of a

particular legal right has alleged 'injury in fact,' and, second, whether the proponent is asserting

his own legal rights and interests rather than basing his claim for relief upon the rights of third

parties").

This claim is barred, meritless and as such, should be summarily denied.

CONCLUSION

The bottom line is that Hilton committed the brutal kidnapping, murder and

dismemberment of Cheryl Dunlap. The evidence of guilt was overwhelming. Witnesses were

able to put Hilton near the scene of the crime. Similar fact evidence was introduced regarding an

almost identical kidnapping, murder and dismembe1ment which occurred less than a month after

this murder, to which Hilton pled guilty. And Hilton confessed. "When a defendant challenges a

death sentence ... the question is whether there is a reasonable probability that, absent the errors,

the scntencer would have concluded that the balance of aggravating and mitigating

circumstances did not wan·ant death. Strickland at 695. "A court making the prejudice inquiry

must ask if the defendant has met the burden of showing that the decision reached would

reasonably likely have been different absent the errors." !d. at 696. The record affirmatively

demonstrates beyond a doubt that even if trial counsel had committed each of the errors

complained of in the Motion for Post-Conviction Relief, there is no chance that the outcome

would have been different. The fact is that the aggravating circumstances proved in this case

were completely overwhelming. The State respectfully requests that this Honorable Court

summarily deny the motion.

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 Respectfully submitted

PAMELA JO BONDI
ATTORNEY GENERAL

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0011943
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3300
primary email:
capapp@myfloridalegal.com
secondary email:
carine.emplit@myfloridalegal.com

COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Answer to Motion for
Post-Conviction Relief has been furnished via the e-portal to Robert A. Morris, Esquire, 911 East
Park Avenue, Tallahassee, FL 32301 this 26th of January, 2015.

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
Attorney for the State

37

245
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

vs.

GARY MICHAEL HILTON,

Defendant.
--------------------~/
ORDER GRANTING EVIDENTIARY HEARING

THIS CAUSE came before the Court upon Defendant's Motion for Post-
Conviction Relief pursuant to Fla. R. Crim. P. 3.851, filed on November 25,2014.
The Court having considered said motion, the State's Response and being otherwise
fully advised in the premises, hereby makes the following findings:

Defendant has set forth a prima facie showing of entitlement to the relief
requested and thus an evidentiary hearing will be required. Therefore it is

ORDERED and ADJUDGED that a case management hearing is scheduled for

Thursday, March 26,2015 at 10:00 a.m. in Courtroom (to be announced), 301 South
Monroe Street, Tallahassee, Florida.

DONE and ORDERED this 2"d day of February, 2015, in Tallahassee, Leon
County, Florida.

Circuit Judge
cc: r-n '01
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........ ....,
Larine L. Emplit
Assistant Attorney General
Georgia Cappleman
Chief Assistant State Attorney
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Office of the Attorney General Office of the State Attorney C('""Jo:;:IO
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The Capitol, PL-01
Tallahassee, FL 32399-1050
301 S. Monroe Street, Suite 475
Leon County Courthouse
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Tallahassee, FL ....
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Robert A. Morris, Esquire . ;p.;o N
911 East Park A venue
Tallahassee, FL 32301 246 ~
Fjling #25330318 E-Filed 03/25/2015 05:10:32 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO. 2008-CF-697A

DIVISION: FELONY

GARY HILTON,
Defendant.
--------------~!

UNOPPOSED MOTION FOR CONTINUANCE

.COMES NOW the Defendant and moves this Honorable Court to continue the

hearing in this Cl\USe, and as grounds therefore would state and allege as follows:

1. ·The above-styled case is presently set for a hearing on March 26,2015 at 10:00am in

accordance with Rule 3.851, Florida Rules of Criminal Procedure. The purpose of

the hearing is for the defense to provide a witness list and exhibit list in accordance

with the rules as well as schedule a hearing.

2. The undersigned is unprepared for the hearing.

3. The. undersigned has recently been appointed in a case that has demanded

unexpected attention. It is a death penalty case as well where all of the appeals (save

the certiorari petition to the United Stale Supreme Court) have been exhausted and it

appears the Governor is going to sign the death warrant. The undersigned has had to

prioritize matters for obvious reasons.

247
f
 4. The defense intends on filing a motion seeking to amend Mr. Hilton's motion as well

as the required companion motion stating the grounds that are believed to provide

entitlement to relief.

5. Both of the foregoing are nearly prepared.

6. The defense has an exhibit list and a witness list prepared, but if granted relief as

articulated above it will change the landscape a bit and entitle the State to respond in

kind.

7. The defense can advise of my schedule for the summer, but speculation suggests that

August or September would likely be a hearing time and it will be longer than an

ordinary hearing (several days).

8. I need to seek the appointment of certain experts that won't require much inquiry

from the Court, but it still needs to happen.

9. Counsel has just received roughly 500 pages of documents from the PD's office

yesterday that willlikel y be exhibits, but has not had time to go through them and

sort them as exhibits.

10. The undersigned has been in contact with Deputy Chief State Attorney Georgia

Capplenian and she has no objection with the relief reqile8fed.

WHEREFORE, the Defendant moves this Honorable Court to continue the hearing

in this cause.

248
 By:-+--.......;::'---4"-""--___::,_,"'----
ROB RT A MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 East Park Avenue
Tallahassee, Florida 32301
(850) 792-1111 Facsimile (850) 792-1113
ATTORNEY FOR DEFENDANT
COURT APPOINTED
alex @ramlawyer.com
efiling@ramlawyer.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been delivered by Electronic Mail:

SA02 Leon@leoncountyfl.gov Georgia Cappleman, Deputy Chief State Attorney, State

Attorney~Office, Leon County Courthouse, 301 Southr see, Florida 32301,

on thist;:Hay of March, 2015.

249
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

VS.
CASE NO. 2008-CF-697A

DIVISION: FELONY
GARY HILTON,
Defendant.
----------------~/

ORDER ON UNOPPOSED MOTION FOR CONTINUANCE

THIS CAUSE, having come before the Court upon the Defendant's Unopposed Motion

for Continuance, and upon agreement of the parties, it is hereby

ORDERED AND ADJUDGED the Defendant's Motion is GRANTED and the hearing

scheduled Thursday, March 26, 2015 shall be continued to the Court's docket on Q~r; t 1.~
2015 at( 0; C() a.m./p.nr. courtroom TBA.

DONE AND ORDERED in Chambers, Tallahassee, Leon County, Florida on this

}._~
-t-IA
day of March, 2015.
\

JAMES C. HANKINSON
CIRCUIT JUDGE

COPIES FURNISHED TO:

ROBERT A. MORRIS, ESQUIRE
Attorney for Defendant

GEORGIA CAPPLEMAN, ESQUIRE

Assistant State Attorney

FILED IN
OPEN COURT /j
Date 03\ ~(Q Imdf3Jnd!JVo:y
N!
s 250
 1

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
CASE NOS.: 2008CF697

STATE OF FLORIDA
vs.
GARY MICHAEL HILTON, ORIGINAL
Defendant.
---------------1

PROCEEDINGS: CASE MANAGEMENT

BEFORE: THE HONORABLE JAMES C. HANKINSON

DATE: MARCH 26, 2015

TIME: commencing at 10:00 a.m.

concluding at 10:05 a.m.
LOCATION: Leon county courthouse
Tallahassee, Florida

sue Ellen Mello, RPR

...,
REPORTED BY: ::::::
Registered Professional Rep(lr_te r c-
State of Florida (J1
CD

Sue Ellen, RPR

official court Reporter
Leon county courthouse, Room 341
Tallahassee, FL 32301

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

251
 2

1 APPEARANCES
'- 2
3 REPRESENTING THE STATE:
4 CARINE L. EMPLIT, ASSISTANT ATTORNEY GENERAL
and
5 CHARMAINE MILLSAPS, ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
6 PL-01, THE CAPITOL
TALLAHASSEE, FL 32399-1050
7
8 GEORGIA CAPPLEMAN, ASSISTANT STATE ATTORNEY
and
9 EDDIE EVANS, ASSISTANT STATE ATTORNEY
OFFICE OF THE STATE ATTORNEY
10 LEON COUNTY COURTHOUSE, SUITE 475
301 SOUTH MONROE STREET
11 TALLAHASSEE, FLORIDA 32301
12
13 REPRESENTING THE DEFENDANT:
14 ROBERT L. MORRIS, ESQUIRE
LAW OFFICES OF ROBERT L. MORRIS, LLC
15 911 E. PARK AVENUE
TALLAHASSEE, FLORIDA 32301
16
17
18 certificate of Reporter 8
19
20
21
22
23
24
25

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

252
 3

1 PROCEEDINGS
2 THE BAILIFF: All rise. court is now in session.
3 The Honorable James c. Hankinson presiding.
4 THE COURT: Be seated, please, folks.
5 We're here in the State of Florida versus Gary
6 Hilton, 2008CF697. The matter was set for case
7 management here today.
8 I have received the unopposed motion for a
9 continuance of case management. I decided to go ahead
10 and come into the courtroom to grant that continuance
11 because there's some things we need to make sure are
12 clear on dates and so forth. I will grant the motion to
13 continue.
14 we need to have a case management, and we were early
15 enough that we can still stay within our time frames,
16 have the case management, needs to occur by April 26th.
17 I'm proposing a case management on April 23rd, 10:00. I
18 really can do it any time that day if that's an
19 inconvenient day, but I don't have a lot of flexibility
20 on days. I was trying to give us as much time as we can,
21 because the evidentiary hearing is going to run from that
22 date.
23 Is that date, can you all work that out?
24 MR. MORRIS: April 23rd, 2:00, is fine by the
25 defense, Judge.

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

253
 4

1 THE COURT: What time?

2 MR. MORRIS: 2:00.
3 THE COURT: Okay.
4 MR. MORRIS: Is that what the court had said?
5 THE COURT: I said 10:00, but
6 MR. MORRIS: 10:00.
7 THE COURT: -- I can do 2:00 if that's better for
8 some reason or other.
9 MR. MORRIS: 10:00 is fine, Judge.
10 THE COURT: who's going to be representing the
11 State?
12 MS. EMPLIT: I will, Your Honor. Carine Emplit from
13 the Attorney General's Office.
14 THE COURT: say your last name again.
15 MS. EMPLIT: Carine Emplit, E-m-p-1-i-t,
16 THE COURT: Okay,
17 MS. EMPLIT: And that date and time works for us.
18 THE COURT: 10:00 is good?
19 MS. EMPLIT: Yes, sir.
20 THE COURT: Okay. so I'm going to indicate here,
21 I'm going to enter the order that was proposed.
22 All right. It's my understanding that the parties
23 agreed with my judicial assistant to set an evidentiary
24 hearing, and I think we'll just go ahead and get that
25 date set so that everybody knows what they're working

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

254
 5

1 towards. It's my understanding everybody has agreed to a

2 date of september 8th and 9th, would be within our 150
3 days of our April 23rd case management.
4 Is that, is my understanding correct?
5 MR. MORRIS: Yes, Your Honor.
6 THE COURT: And it's your belief, Mr. Morris, we can
7 do this in two days?
8 MR. MORRIS: Yes, sir.
9 THE COURT: All right. State?
10 MS. EMPLIT: Your Honor, I was just made aware of
11 those dates this morning, but that won't be a problem for
12 me.
13 THE COURT: Okay, all right. So we --
14 MS. CAPPLEMAN: Judge, I have advised Ms. suber of
15 those dates. I have not heard back from her yet, so that
16 would be the only potential hangup, but it seems to be
17 enough notice that she ought to be able she did advise
18 she had had some major surgery, but she ought to be okay
19 by then.
20 THE COURT: I would go ahead and put her under
21 subpena so that we don't have a lot of flexibility on
22 our dates. It has to occur within 150 days of our case
23 management of April 23rd, so.
24 MS. CAPPLEMAN: I had advised her of the week of
25 July 20th or september 8th and 9th as being options. I

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

255
 6

1 didn't know that we had settled on the 8th and 9th, but I
2 will advise of her of that and send a subpena.
3 THE COURT: All right. so I'm granting the case
4 management continuance at the request. of the defense to
5 April 23.rd at 10:00, setting the evidentiary hearing for
6 september 8th and 9th.
7 Anything else we need to take up at this point in
8 time?
9 MR. MORRIS: Not from the defense, Judge.
10 THE COURT: State?
11 MR. EVANS: Your Honor, if you don't mind, I need to
12 ask Mr. Morris about it. There is one thing because I
13 understood there may be an amendment.
14 (Brief pause.)
15 MR. MORRIS: Judge, Mr. Evans makes a good point. I
16 did articulate some of this in the motion. I intend on
17 filing a motion seeking leave to amend stat1ng good cause
18 as to why that should be granted, and in compliance with
19 the rules of procedure, attaching the amended arguments.
20 of course the court will, if the court were to grant
21 leave to amend, that would provide some time expansion in
22 terms of the jurisdictional time periods for the State to
23 respond and hearings and so on and so forth.
24 THE COURT: That's not how I read the rule, frankly.
25 MR. MORRIS: Okay.
"--'
SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

256
 7

1 THE COURT: The rule says that the evidentiary

2 hearing is not continued, so that's why I'm going to go
3 ahead and get it set. But I'm not going to -- let's not
4 try to get into what hypothetically might happen next
5 week. That just causes a whole bunch of confusion. I
6 think we've dealt with what's said here today.
7 Is there anything else that's open at this point in
8 time we need to deal with?
9 MR. MORRIS: No, Your Honor.
10 THE COURT: All right. we'll be in recess.
11 (This concludes the case management hearing.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
'-'
SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

257
 8

1 CERTIFICATE
2 STATE OF FLORIDA:
3 COUNTY OF LEON:
4 I, SUE ELLEN MELLO, Registered Professional
5 Reporter, do hereby certify that the foregoing proceedings
6 were taken before me at the time and place therein designated;
7 that my shorthand notes were thereafter translated under my
8 supervision; and the foregoing pages are a true and correct
9 record of the aforesaid proceedings.
10 I FURTHER CERTIFY that I am not a relative,
11 employee, attorney or counsel of any of the parties, nor
12 relative or employee of such attorney or counsel, or
13 financially interested in the foregoing action.
14
DATED this 26th day of March 2015.
15
16
17
18
19
SUE ELLEN MELLO, RPR
20 OFFICIAL COURT REPORTER
LEON COUNTY COURTHOUSE
21 TALLAHASSEE, FLORIDA 32301
22
23
24

25
SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

258
Filing# 26437267 E-Filed 04/•. ~/2015 10:29:46 AM
~.l

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE NO: 2008-CF-697A

DIVISION: FELONY
DEATH PENALTY
GARY MICHAEL HILTON,

DEFENDANT.

DEFENDANT'S EXIDBIT LIST

COMES NOW, the undersigned attorney, and files this Defendant's Exhibit List on

behalf of GARY MICHAEL HILTON, the Defendant in the above-styled cause, pursuant to

Fla. R. Crim. P. 3.851(f)(5)(A) 1•

1. Facsimile from Clerk of Courts, Juvenile Division, Miami, Florida

2. Internal Emails from the Office of the Public Defender (152 pages)

3. January 26, 2011 Defense's Emergency Motion to Continue

4. January 27,2011 State's Response to Emergency Motion to Continue

5. January 27, 2011 Defense's Response to State's Reply for Emergency Motion to
Continue Trial

6. January 27, 2011 Order Denying Defendant's Emergency Motion to Continue Trial

7. February 15,2011 "Notice of Withdraw"

8. November!, 2010 Waiver of No Significant History of Prior Criminal Activity of

Defendant Statutory Mitigator

9. Georgia Medical Board Documents re: Dr. Deicher (47 Pages)

1 Defendant has not separately listed all documents attached to each numbered exhibit herein, but
places the State on notice that all attachments to all documents listed herein are included within
this Defendant's Exhibit List.

259
 10. Life History of Gary Michael Hilton prepared by Betty Fuentes (184 Pages)

11. Slideshow by Betty Fuentes (162 Pages)

12. General Records Matrix File and Email file (Box 326214)

13. Boxes 326206, 326207, 326208

14. All exhibits and/or physical evidence listed on any exhibit list filed by the State
pursuant to Fla. R. Crim. P. 3.851(f)(5)(A), unless subject to objection by Defendant.

15. All documents and/or physical evidence produced by Defendant to State via the
exchange process mandated under Fla. R. Crim. P. 3.851(f)(5)(A).

16. All documents and/or physical evidence discovered by Defendant and disclosed to
State within a reasonable amount of time prior to evidentiary hearing. 2

Respectfully submitted this 23'd day of April, 2015.

RO ERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
Attorney for Defendant
COURT APPOINTED

2 Due to the extensive amount of documentary evidence generated (no less than 150 full
"banker's boxes" of documents) in this, and related cases, Defendant anticipates the potential
need to supplement this Defendant's Exhibit List, requests to reserve the right to do so, and will
file any necessary supplement immediately upon the discovery and/or receipt of such evidence.

260
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman SA02 LeonFelony@leoncountyfl.gov State Attorney's Office,

Leon County Courthouse, 4a' Floor, 301 S. Monroe Street, Tallahassee, FL, and Capital Appeals

Bureau, Office of the Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on

this 23'd day of April, 2015.

261
Filing# 26437267 E-Filed 04/~j2015 10:29:46 AM
~

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASENO: 2008-CF-697A

DIVISION: FELONY
DEATH PENALTY
GARY MICHAEL HILTON,

DEFENDANT.

DEFENDANT'S WITNESS LIST

COMES NOW, the undersigned attorney, and files this Defendant's Witness List

on behalf of GARY MICHAEL HILTON, the Defendant in the above-styled cause,

pursuant to Fla. R. Crim. P. 3.851(f)(5)(A).

NON-EXPERT WITNESSES

1. Gary Michael Hilton

2. Paula Saunders

3. Rob Friedman

4. Merribeth Bohanan

5. Nancy Daniels

6. Betty Fuentes

7. Andy Thomas

8. Steven Been

9. Tracy Record

262
I 0. Chris EHrich

11. Clyde Taylor, Esq.

;:.
12. Kim Stevens, Esq.

13. Monica Jordan

14. Names and Addresses of those individuals contained in the Key Mitigation
Witnesses File developed by Betty Fuentes

15. John Tomasino

EXPERT WITNESSES

16. Dr. Harry McClaren

17. Dr. Joseph Woo

18. Clyde Taylor

19. Mark Olive

20. Kim Stevens

Respectfully submitted this 23'd day of April, 2015.

The Law Offices of Robert A. Morris, LLC

Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792·1113 Facsimile
alex@ramlawyer.com
Attorney for Defendant
COURT APPOINTED

263
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman SA02 LeonFelony@leoncountytl.gov State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Capital Appeals

Bureau, Office of the Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on

this 23'd day of April, 2015.

264
Filing# 29110891 E-Filed 06/:;u/LOIS 01:33:05 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.

GARY MICHAEL HILTON,

Defendant.

MOTION FOR CASE MANAGEMENT CONFERENCE AND FOR OTHER RELIEF

COME NOW, the State of Florida, by and through the undersigned counsel, and hereby

requests that this Honorable Court issue an Order setting a Case Management Conference and For

Other Relief in the above-referenced case. In support of this request, the undersigned submits the

following:

I. Collateral counsel, Robert A. Morris, filed his initial Motion for Post-Conviction

Relief on November 26, 2014.

2. Thereafter, the State filed its answer on January 26,2015.

3. A Case Management Conference was scheduled for March 26, 2015.

4. On March 25, 2015, Morris filed an Unopposed Motion to Continue the Case

Management Conference, alleging, among other things, that he anticipated filing a

Motion to Amend his Motion for Post-Conviction Relief, which was nearly prepared.

265
 (See Paragraph 4 on Page 2 of the Unopposed Motion for Continuance within the

court file.) 1

5. On March 26, 2015, this Court granted the Unopposed Motion to Continue, resetting

the Case Management Conference for April 23, 2015, and setting the evidentiary

hearing for September 8-9, 2015. At the March 26, 2015 hearing, Morris reiterated

his intention of filing a motion seeking leave to amend his initial post-conviction

motion. (See lines 15-19, page 6 of the April 23, 2015 transcript, attached and

incorporated herein as Exhibit "A.")

6. On April 23, 2015, the parties reconvened. Morris notified the State that he had

obtained the defendant's signature on the amended motion for post-conviction relief,

and anticipated filing both his motion to amend and proposed amended motion for

post-conviction relief within the next two business days. 2 The Court held a brief

hearing, but argument was not heard on the postconviction motion and answer.

7. Since a Case Management Conference has yet not occurred, nor has an order setting

forth which issues will be heard at the evidentiary hearing been entered, there are

presently no claims for the court to hear at the evidentiary hearing scheduled for

September 8-9,2015.

8. Pursuant to Fla. R. Crim. P. 3.85l(f)(5)(A), "[t]he trial court shall hold a case

management conference," a requirement this Court acknowledged at the April 23,

1
Interestingly, the Motion to Continue (paragraph 8, page 2) also refers to the need for appointment of experts,
presumably to testifY at the September 8-9, 2015 evidentiary hearing. The defense has yet to move for such
appointment.
2
Approximately one month later, on May 22, 2015, and in response to an email from the undersigned, collateral
counsel advised that he had to obtain Hilton's signature "once more" and that this was the "only thing" holding him
up from filing his motion to amend and proposed amended motion for postconviction relief.
2

266
 2015 hearing when it announced, "We need to have a case management .... " (See

line 14, page 3 of Exhibit "A.")

9. Fla. R. Crim. P. 3.851(f)(5)(A) also requires that both parties disclose all

documentary exhibits that they intend to offer at the evidentiary hearing, provide an

exhibit list of all such exhibits, and exchange a witness list with the names and

addresses of any potential witnesses. 3 All expert witnesses shall be so designated on

the witness list, and copies of all expert reports shall be attached.

10. Since April27, 2015, counsel for the defendant has repeatedly assured the State that

he will be filing his motion to amend, along with his proposed amended motion for

postconviction relief; and that he will be providing addresses for the witnesses listed

on his witness list, as well as copies of the exhibits he intends to use. Despite

repeated and documented requests by the State for same since late-April, the motion

to amend along with the proposed amended motion for postconviction relief,

addresses for the witnesses listed on his witness list, and exhibits have not been

provided.

11. In order to keep this case on track and proceed to the evidentiary hearing on

September 8 - 9, 2015, the defense must file its motion to amend and proposed

amended motion for postconviction reliefbefore the Case Management Conference,

3
While Hilton did provide copies of his Witness List and Exhibit List to the undersigned at tbe April23, 2015 hearing,
the witness list lacks the required addresses for all listed witnesses. The State remains unable to commence deposing or
interviewing many of the listed witnesses. Additionally, footnote 2 (page 2) ofthe Defendant's Exhibit List refers to his
anticipated "need to supplement" the exhibit list. No supplement has been filed and as discussed above, the exhibits
initially identified on the Exhibit List filed on April 23, 2015 have not even been provided to the State.
3

267
 allowing time for the Court to enter an order allowing the amendment and time for

the State time to respond to the amended motion.

I 2. A Case Management Conference must be held in order for this Court to determine

which issues, listed by the defendant as requiring a factual determination, will be

addressed at the evidentiary hearing, and to hear argument on any purely legal claims

not based on disputed facts. Fla. R. Crim. P. 3.851(t)(5)(A)(i) and (ii). As it stands

now, while an evidentiary hearing is scheduled, which claims will be heard at that

hearing remains undetermined.

13. A Case Management Conference is also necessary for purposes of disclosing all

documentary exhibits that are intended to be offered at the evidentiary hearing, as

well as the names and addresses of any potential witnesses. Fla. R. Crim. P.

3.851 (t)(S)(A).

14. Consequently, the State is respectfully requesting the Court to order the defense to

file its motion to amend and proposed amended motion for postconviction relief by

a date certain, preferably in early-July; to order the defense to file its motion for

appointment of experts by a date certain, preferably in early-July; to set a Case

Management Conference no later than early-August to determine which claims will

be heard at the evidentiary hearing, scheduled for September 8-9,2015, and which,

if any, will be disposed of prior to the hearing, and for the parties to file their

complete witness lists and exchange exhibits, and expert reports, if any.

268
 CONCLUSION

WHEREFORE, the State of Florida respectfully requests that this Court order the defense to

file its motion to amend and proposed amended motion for postconviction relief by a date certain,

preferably in early-July; order the defense to file its motion for appointment of experts by a date

certain, preferably in early-July; and schedule a Case Management Conference no later than early-

August, 2015 in the above-entitled case so that the case may proceed to the evidentiary hearing

scheduled for September 8-9,2015.

Respectfully submitted

PAMELA JO BONDI
ATTORNEY GENERAL

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0011943
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3580
primary email:
carine.emplit@myfloridalegal.com
secondary email:
capapp@myfloridalegal.com
CO-COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion for Case
Management Conference has been furnished via the e-portal to Robert A. Morris, Esquire, 911
East Park Avenue, Tallahassee, FL 32301; Georgia Cappleman, Chief State Attorney and

269
Eddie Evans, Assistant State Attorney, 301 South Monroe Street, Tallahassee, FL 32301 this
30th ofJune, 2015.

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
Attorney for the State

270
 1

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
CASE NOS.: 2008CF697

STATE OF FLORIDA

vs.
GARY MICHAEL HILTON,
Defendant.

PROCEEDINGS: CASE MANAGEMENT

BEFORE: THE HONORABLE JAMES C. HANKINSON

DATE: MARCH 26, 2015

TIME: commencing at 10:00 a.m.

concluding at 10:05 a.m.
LOCATION: Leon county courthouse
Tallahassee, Florida

REPORTED BY: sue Ellen Mello, RPR

Registered Professional Reporter
state of Florida

Sue Ell en, RPR

official court Reporter
Leon county courthouse, Room 341
Tallahassee, FL 32301

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

E'ihihit "A'' 271

 2

1 APPEARANCES
2
3 REPRESENTING THE STATE:
4 CARINE L. EMPLIT, ASSISTANT ATTORNEY GENERAL
and
5 CHARMAINE MILLSAPS, ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
6 PL-01, THE CAPITOL
TALLAHASSEE, FL 32399-1050
7

8 GEORGIA CAPPLEMAN, ASSISTANT STATE ATTORNEY

and
9 EDDIE EVANS, ASSISTANT STATE ATTORNEY
OFFICE OF THE STATE ATTORNEY
10 LEON COUNTY COURTHOUSE, SUITE 475
301 SOUTH MONROE STREET
11 TALLAHASSEE, FLORIDA 32301

12
13 REPRESENTING THE DEFENDANT:

14 ROBERT L. MORRIS, ESQUIRE

LAW OFFICES OF ROBERT L. MORRIS, LLC
15 911 E. PARK AVENUE
TALLAHASSEE, FLORIDA 32301
16

17
18 certificate of Reporter 8

19
20
21
22
23
24
25

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

272
 3

1 PROCEEDINGS
2 THE BAILIFF: All rise. Court is now in session.
3 The Honorable James c. Hankinson presiding.
4 THE COURT: Be seated, please, folks.
5 we're here in the state of Florida versus Gary
6 Hilton, 2008CF697. The matter was set for case
7 management here today.
8 I have received the unopposed motion for a
9 continuance of case management. I decided to go ahead
10 and come into the courtroom to grant that continuance
11 because there's some things we need to make sure are
12 clear on dates and so forth. I will grant the motion to
13 continue.
14 we need to have a case management, and we were early
15 enough that we can still stay within our time frames,
16 have the case management, needs to occur by April 26th.
17 I'm proposing a case management on April 23rd, 10:00. I
18 really can do it any time that day if that's an
19 inconvenient day, but I don't have a lot of flexibility
20 on days. I was trying to give us as much time as we can,
21 because the evidentiary hearing is going to run from that
22 date.
23 Is that date, can you all work that out?
24 MR. MORRIS: April 23rd, 2:00, is fine by the
25 defense, Judge.

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

273
 4

1 THE COURT: What time?

2 MR. MORRIS: 2:00.
3 THE COURT: Okay.
4 MR. MORRIS: Is that what the court had said?
5 THE COURT: I said 10:00, but
6 MR. MORRIS: 10:00.
7 THE COURT: -- I can do 2:00 if that's better for
8 some reason or other.
9 MR. MORRIS: 10:00 is fine, Judge.
10 THE COURT: Who's going to be representing the
11 state?
12 MS. EMPLIT: I will, Your Honor. cari ne Empl it from
13 the Attorney General's office.
14 THE COURT: say your last name again.
15 MS. EMPLIT: Carine Emplit, E-m-p-1-i-t.
16 THE COURT: okay.
17 MS. EMPLIT: And that date and time works for us.
18 THE COURT: 10:00 is good?
19 MS. EMPLIT: Yes, sir.
20 THE COURT: okay. so I'm going to indicate here,
21 I'm going to enter the order that was proposed.
22 All right. It's my understanding that the parties
23 agreed with my judicial assistant to set an evidentiary
24 hearing, and I think we'll just go ahead and get that
25 date set so that everybody knows what they're working

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

274
 5

1 towards. It's my understanding everybody has agreed to a

2 date of September 8th and 9th, would be within our 150
3 days of our April 23rd case management.
4 Is that, .
lS my understanding correct?
5 MR. MORRIS: Yes, Your Honor.
6 THE COURT: And it's your belief, Mr. Morris, we can
7 do this in two days?
8 MR. MORRIS: Yes, sir.
9 THE COURT: All right. State?
10 MS. EMPLIT: Your Honor, I was just made aware of
11 those dates this morning, but that won't be a problem for
12 me.
13 THE COURT: Okay, all right. So we --
14 MS. CAPPLEMAN: Judge, I have advised Ms. Suber of
15 those dates. I have not heard back from her yet, so that
16 would be the only potential hangup, but it seems to be
17 enough notice that she ought to be able she did advise
18 she had had some major surgery, but she ought to be okay
19 by then.
20 THE COURT: I would go ahead and put her under
21 subpena so that we don't have a lot of flexibility on
22 our dates. It has to occur within 150 days of our case
23 management of April 23rd, so.
24 MS. CAPPLEMAN: I had advised her of the week of
25 July 20th or september 8th and 9th as being options. I

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

275
 6

1 didn't know that we had settled on the 8th and 9th, but I
2 will advise of her of that and send a subpena.
3 THE COURT: All right. so I'm granting the case
4 management continuance at the request of the defense to
5 April 23rd at 10:00, setting the evidentiary hearing for
6 september 8th and 9th.
7 Anything else we need to take up at this point in
8 time?
9 MR. MORRIS: Not from the defense, Judge.
10 THE COURT: State?
11 MR. EVANS: Your Honor, if you don'·t mind, I need to
12 ask Mr. Morris about it. There is one thing because I
13 understood there may be an amendment.
14 (Brief pause.)
15 MR. MORRIS: Judge, Mr. Evans makes a good point. I
16 did articulate some of this in the motion. I intend on
17 filing a motion seeking leave to amend stating good cause
18 as to why that should be granted, and in compliance with
19 the rules of procedure, attaching the amended arguments.
20 of course the court will, if the court were to grant
21 leave to amend, that would provide some time expansion in
22 terms of the jurisdictional time periods for the state to
23 respond and hearings and so on and so forth.
24 THE COURT: That's not how I read the rule, frankly.
25 MR. MORRIS: Okay.

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

276
 7

1 THE COURT: The rule says that the evidentiary

2 hearing is not continued, so that's why I'm going to go
3 ahead and get it set. But I'm not going to -- let's not
4 try to get into what hypothetically might happen next
5 week. That just causes a whole bunch of confusion. I
6 think we've dealt with what's said here today.
7 IS there anything else that's open at this point in
8 time we need to deal with?
9 MR. MORRIS: No, Your Honor.
10 THE COURT: All right. we'll be in recess.
11 (This concludes the case management hearing.)
12
13

14
15
16
17
18
19
20
21
22
23
24

25

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

277
 8

1 CERTIFICATE
2 STATE OF FLORIDA:
3 COUNTY OF LEON:
4 I, SUE ELLEN MELLO, Registered Professional
5 Reporter, do hereby certify that the foregoing proceedings
6 were taken before me at the time and place therein designated;
7 that my shorthand notes were thereafter translated under my
8 supervision; and the foregoing pages are a true and correct
9 record of the aforesaid proceedings.
10 I FURTHER CERTIFY that I am not a relative,
11 employee, attorney or counsel of any of the parties, nor
12 relative or employee of such attorney or counsel, or
13 financially interested in the foregoing action.
14
DATED this 26th day of March 2015.
15
16
17
18
19
SUE ELLEN MELLO, RPR
20 OFFICIAL COURT REPORTER
LEON COUNTY COURTHOUSE
21 TALLAHASSEE, FLORIDA 32301
22
23
24
25

SUE ELLEN MELLO, RPR, OFFICIAL COURT REPORTER

278
Filing# 29143327 E-Filed 07ivliL015 09:12:38 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

vs.

GARY MICHAEL HILTON,

Defendant.

:- ,.
ORDER DENYING STATE'S MOTION FOR AN ADDITIONAL
CASE MANAGEMENT

THIS matter coming on to be heard upon the State of Florida's Motion for
Case Management Conference and for other Relief filed on June 30, 2015, and the
Court being fully advised in the premises, finds as follows:

!. A case management occmTed on April 23, 2015. The Court does not
anticipate having another case management conference.

2. On that same date, the Defense filed their Witness and Exhibit Lists as
required by rule. The State had until June 23, 2015 to file their Witness
and Exhibit List. For whatever reason, that has not occurred.

3. The Court has no authority to order a party to file an amended

postconviction motion. In fact, the Defendant must seek leave of the
court to file an amended motion. The Court will note that an amended
motion cannot be allowed within 45 days of the evidentiary hearing. Fla.
R.Crim.P. 3.851(£)(4). The evidentiary hearing is set for September 8,
2015. The granting of a motion to amend will not result in a continuance
of the evidentiary hearing absent a "manifest injustice."

4. Pursuant to rule 3.85 I (f)(S )(A)(i), an evidentiary hearing is to be held

"on claims listed by the Defendant as requiring a factual determination."
The Court is unclear why a hearing is required to discern those issues.

279
 5. The Court reviewed the State's motion to summarily deny all defense
claims. The Court denied that motion by granting Defendant an
evidentiary hearing. If there are purely legal issues to be resolved they
should be presented to the Court by appropriate motion Otherwise the
evidentiary hearing will proceed as outlined by the Defendant.

DONE and ORDERED this l '5. ~ay of July, 2015, in Tallahassee, Leon
County, Florida.

~~-=t,(!~
\·,~- ~-~
; ~

( ~AMES C. llANKINSON
l_Pircuil Judge
cc:

Carine L. Emplit
Assistant Attorney General
Office of the Attorney General
The Capitol. PL-0 1
Tallahassee, FL 32399-1050

Georgia Cappleman
Chief Assistant State Attorney
Oflice of the State Attorney
301 S. Monroe Street, Suite 475
Leon COlmty Courthouse
Tallahassee, FL 32301

Eddie Evans
Assistant State Attorney
Office of the State Attorney
301 S. Monroe Street, Suite 475
Leon County Courthouse
Tallahassee, FL 323 0 1

Robert A. Morris, Esquire

911 East Park Avenue
Tallahassee, FL 32301

280
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA.

STATE OF FLORIDA CASE NO. 2008CF697

vs.

GARY MICHAEL HILTON,

Defendant.

STATE'S WITNESS LIST

I. lnes Suber

2. Paula Saunders

3. Robert Friedman

4. Merribeth Bohanan

5. Betty Fuentes

6. Chris EHrich

7. Nancy Daniels

8. Andy Thomas

EXPERT WITNESSES

9. Dr. Gregory Pritchard

Respectfully submitted this 2d day of 1uly, 2015.

281
 Respectfully submitted,

CERTIFICATE OF SERVICE

282
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA.

STATE OF FLORIDA CASE NO. 2008CF697

vs.

GARY MICHAEL HILTON,

Defendant.

STATE'S EXHIBIT LIST

~
-~-'· ~t
I. Any or all exhibits introduced by the State at trial. <-
c.::
2. Any or all transcripts of proceedings in this matter.
.... ~ """"'""'~''
I
0">

~,·
:::>::
Respectfully submitted this 2d day of July, 2015. g
w
(J1

Respectfully submitted,

CERTIFICATE OF SERVICE

I HEREBY certifY that a true and correct copy of the for oing docu ent has be.:;~ served by
U. S. Mail to Robert A. Morris, 911 E. Park Avenue, Tallahass e, FC 323 I, o this -~_day of July,
2o1s. 1

cr:
w . 1--
z::>u
-0..5;.
~
0
283
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA.

STATE OF FLORIDA CASE NO. 2008CF697

vs.

GARY MICHAEL HILTON,

Defendant.
----------------------~/

STATE'S AMENDED EXHIBIT LIST

I. Any or all exhibits introduced by the State at trial.

2. Any or all transcripts of proceedings in this matter.

3. Dr. Brady Hudson's report on competency (dated 04/30/15).

4. Dr. Salvatore Blandino's report (dated 04/29/14).

Respectfully submitted this I Oth day of July, 2015.

Respectfully submitted,

CERTIFICATE OF SERVICE

I HEREBY certify that a true and correct copy of the forgoin document has b~ljl,served by
U.S. Mail to Robert A. Morris, 911 E. Park Avenue, Tallahasse 3 301 this ~dayofJuly,
2015.

284
Filing# 30087376 E-Filed 07/24, ~Jl5 04:56:06 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE N0: 2008-CF -697A

DIVISION: FELONY
DEATH PENALTY

GARY MICHAEL HILTON,

DEFENDANT.
----------------------~'

MOTION FOR LEAVE TO AMEND INITIAL POSTCONVICTION

MOTION AND INCORPORATED MEMORANDUM OF LAW

COMES NOW, the Defendant, Gary Michael Hilton, by and through the

undersigned attorney pursuant to Rule 3.851(f)(4) of the Florida Rules of Criminal

Procedure and files this Motion for Leave to Amend Initial Postconviction Motion and .

Incorporated Memorandum of Law and alleges the following:

1. Rule 3.851 (f)(4 ), Florida Rules of Criminal Procedure provides:

A motion filed under this mle may not be amended unless

good cause is shown. A copy of the claim sought to be
added must be attached to the motion to amend. The trial
court may in its discretion grant a motion to amend
provided that the motion to amend was filed at least 45
days before the scheduled evidentiary hearing. Granting a
motion under this subdivision shall not be a basis for
granting a continuance of the evidentiary hearing unless a
manifest injustice would occur if a continuance was not ·
granted. If amendment is allowed, the state shall file an
amended answer within 20 days after the judge allows the
motion to be amended. ·

285
. :S·W" J
 2. A trial court's refusal to grant a party leave to amend a 3.851 motion is

reviewed under an abuse of discretion standard. See Lugo v. State, 2 So, 3d I

(Fla. 2008) citing Bryant v. State, 901 So.2d 810, 817 (Fla.2005).

3. It is entirely appropriate for an amended pleading to expand, clarify or enlarge

matters that have already been presented to a court. See Surinach v. State, 110

So.3d 95, 95 (Fla. 2d DCA 2013) ("Amended motions for post-conviction

relief are subject to the two-year time limit for filing rule 3.850 motions unless

they merely enlarge an issue or issues raised in the original motion."); Rincon

v. State, 996 So.2d 922, 923 (Fla. 4th DCA 2008). Admittedly, the foregoing

rulings are pursuant to Rule 3.850, but they provide a lens through which

amendments in a Rule 3.851 should be measured.

4. In the instant case, the undersigned has been tasked with a daunting task. The

case at hand is massive. It contemplates over one hundred banker's boxes,

hundreds of witnesses, hundreds of electronic files. It has invited the ire of

opposing counsel who prefers to have the steadfast assurance when things will

be filed and how .1 This Court tried this case. It is well aware of the massive

'Opposing counsel (Ms. Emplit and presumptively the Office of the Attorney General) has filed a motion that
calls into question the ethics, ethos and professionalism of the undersigned. That need not be a debate. The
undersigned will candidly admit looking at opposing counsel and telling her, "I will file an amended motion
on X date, Y date and Z date." I did not do it. The undersigned will admit his failings to this Court as he always
has and does. Opposing counsel doesn't have the benefit of having and Jiving the experience of a sole
practitioner who works very hard every day to afford indigent defendants the best representation possible.
The undersigned has a vibrant practice that does not include the benefit of an office such as the Office of the
Attorney General. It does include the opportunity to sit in offices with people or pick up the phone with
persons such as Mr. Meggs, Ms. Cappleman and Mr. Evans and have dialogue about issues. That is likely
because. we serve as trial lawyers in the same trenches and We can appreciate one another's schedules and
perspectives.

286
 number of issues that it had to digest. In simplistic terms, the case is not ·

simple.

5. To that end, the undersigned was not able to address the issues that have now

been included due to his own oversight, neglect, inability to interview

witnesses, inability to obtain documents, the voluminous record, etc ... The

undersigned is more than willing to provide any explanation of "just cause" the

Court may necessitate to afford the Defendant the ability to amend.

6. The amendments have served to streamline the claims. The State will likely

contend that they expand them, but they do not. When viewed through the

sub-category of the claim that they are made, they actually narrow the scope.

They have not been asserted individually. They have been asserted as an

aggregate. It seemed most intelligent to "put all of the cards on the table." It

allows everyone to know what the issues are and there is not a meandering

stream of testimony.

7. The undersigned has not incorporated attachments to the pleadings attached

hereto because they are duplicative of the originals. In the event of that

necessity, the undersigned would request leave to simply amend with the

attachments originally filed.

WHEREFORE, the undersigned requests the entry of an Order with Leave to

Amend and accepting the pleading attached hereto.

287
 Respectfully submitted this 24th day of July, 2015.

The Law Offices of Robert A. Morris, LLC

Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792·1111 Facsimile (850) 792·1113
Attorney for Defendant
COURT APPOINTED

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountvfl.gov, State Attorney's Office,

Leon County Courthouse, 4'" Floor, 301 S. Monroe Street, Tallahassee, FL, and Carine Emplit,

carine.emplit@myfloridalegal.com,Capital Appeals Bureau, 0 ice of the Attorney General, PL-

01 The Capitol, Tallahassee, Florida 32399-1050 on this~

ROBERT A MORRIS

288
I
i
IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO.: 2008-CF-697A

DIVISION: FELONY

GARY MICHAEL HILTON, DEATH PENALTY

DEFENDANT.

--------------------------'
AMENDED MOTION FOR POST -CONVICTION RELIEF

COMES NOW, the Defendant, Gary Michael Hilton, by and through the undersigned

counsel pursuant to Rule 3.851, Florida Rules of Criminal Procedure and files this Motion for

Post-Conviction Relief and as grounds therefore would state and allege as follows:

PRELIMINARY STATEMENT

The Defendant shall be referred to as the "Defendant." The State shall be referred to as

the "State." Any references to the Record shall be refened to by the designation "R" and the

appropriate volume and page number designations. In some instances, the volumes of the

Record are broken up and refened to by different stages of the proceedings (e.g. "Jury Selection,

Trial, Sentencing, etc ... ). In those cases, any references shall be referred to by the designation

"R" followed by the proceeding and the appropriate page number designation (e.g. R, Jury

Selection, 6). There will be references to documents and matters that will be made part of the

instant Motion without Citation or reference. This is due to Rule 3.851, Florida Rules of

Criminal Procedure proving to be ari unworkable "rule." The demands of the "rules" invite the

289
 assembly of a document (a motion for post-conviction relief) in a relatively short period of time

without the benefit of having all of the available references. Some of this is due to the concern

of filing the appropriate pleading/s within the jurisdictional time periods required to preserve

state remedies as well as federal remedies. Nonetheless, the undersigned will do his best to

direct the Comt's attention, and that of opposing counsel, to the appropriate references.

STATEMENT OF CASE AND PROCEDURAL HISTORY

The Defendant was charged by Indictment on Febmary 28, 2008 for First Degree

Murder, Grand Theft Motor Vehicle, Kidnapping and Grand Theft. (Ex. A). The Office of the

Public Defender for the Second Judicial Circuit filed a motion on March 5, 2008) seeking

appointment in the instant case. (Ex. B). An order granting the motion was entered on the same

date despite the State's somewhat dubious motion filed the next day asserting that the Defendant

didn't follow procedures or was not entitled to counsel. 1 (Ex. C). Nevertheless, the trial court

rectified the situation and entered an amended order of appointment. (Ex. D). The State filed

their Notice of Intent to Seek the Death Penalty on July 28, 2008. (Ex. E). The matter was

called on for trial and Jury Selection was conducted between January 31, 2011 and Febmary 2,

2011. (R, Jury Selection, 1-1083). The "guilt phase" commenced on Febmary 4, 2011 and

concluded on Febmary 15, 2011. (R, Trial-Guilt Phase, 1-1609). The jury returned a verdict of

guilty of First Degree Murder (interrogatory verdict of premeditation and felony murder),

Kidnapping (interrogatory verdict of proof of intent to facilitate a felony and to inflict bodily

harm or terrorize and Grand Theft. (Ex. F). The jury found the Defendant not guilty of Grand

1 It is troublesome that the genesis of our "adversarial" legal process contemplates that it is completely acceptable

for the prosecutorial body (the State) to attempt to deprive an accused of any representation while the State tries to
build and mount a case that involves the interrogation and confrontation of the defendant despite watershed holdings
such as Gideon v. Wainwright, 372 U.S. 335 (1963).

- 2-

290
Theft Motor Vehicle. (Ex. F). The "penalty phase" commenced on Febmary 17, 2011 and

concluded on Febmary 21, 2011. (R, Jury Trial- Penalty Phase, 1-758). The jury returned an

advisory verdict of 12-0 recommending the imposition of the death penalty; (Ex. G). A

"Spencer Hearing" was conducted on April 7, 20 I 1. (R, Spencer Hearing, 1-48). The Defendant

was adjudicated guilty on April 21, 2011 and sentenced to Death for Count I. (R, Sentencing, 1-

6, Ex. H, Ex I). The Defendant was sentenced to Life on Count II and five (5) years on Count

IV; each sentence to tun consecutively. (R, Sentencing, 1-6, Ex. H, Ex I). The Defendant timely

filed a Notice of Appeal on May 4, 2011. (Ex. J).

The Defendant appealed to the Supreme Comt of Florida who rendered their opinion on

March 21, 2013 in Hilton v. State, 117 So .3d 742 (Fla. 2013) (not final until the p~riod for

moving for re-hearing). See Rule 9.330, Florida Rules of Appellate Procedure). In the opinion,

the Supreme Comt of Florida affirmed the convictions and death sentence and addressed the

following grounds of appeal:

1) Collateral Crime Evidence (Admissions to other crimes during transport to FL)

2) Dr. Prichard's Testimony (Testifying aboutDefendant's past criminal conduct)

3) Witness Sequestration (Prichard remaining in the courtroom as an expert)

4) Aggravators (Insufficiency arguments for those enumerated below)

5) HAC

6) CCP

7) Mitigation (Argument that trial court erred in finding lack of capacity not proven)

8) Ring Claim

9) Sufficiency (Independent assessment of Court that competent and substantial

evidence suppotts the convictions)

-3- .

291
 10) Proportionality (Independent duty by Court to review and finding of proportionate)

(Ex. K).

The Defendant filed a motion for rehearing on April 2, 2013 which was denied on July 2,

2013. The Mandate was issued on July 31,2013. The United States Supreme Court denied a

Petition for Ce1tiorari on December 2, 2013. Hilton v. Florida, 134 S.Ct. 686 (2013). (Ex. L).

ARGUMENT

The Supreme Court of Florida has explained that for ineffective assistance of counsel

claims to be successful, two factors must be established: First, the claimant must identify

particular acts or omissions of the lawyer that are shown to be outside the broad range of

reasonably competent performance under prevailing professional standards. Second, the clear,

substantial deficiency shown must further be demonstrated to have so affected the fairness and

reliability of the proceeding that confidence in the outcome is undermined. Bolin v. State, 41

So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)).

This articulation came based on the United States Supreme Court's holding in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The deficiency prong of Strickland "requires showing that counsel made errors so serious

that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. There is a strong presumption that

counsel's performance was not ineffective, and it is up to the defendant to present evidence to

overcome this presumption. !d. at 689. "A fair assessment of attorney perfonnance requires that

every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

·4-

292
 circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Id.

The prejudice prong of Strickland is established where a defendant shows that "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Franqui v. State, 59 So .3d 82, 95 (Fla. 2011) (quoting Strickland,

466 U.S. at 694, 104 S.Ct. 2052).

I. TRIAL COUNSEL WAS INEFFECTIVE IN

PRESENTING A ''DEFENSE" OF INNOCENCE
AND/OR REASONABLE DOUBT DURING THE
GUILT PHASE AND THEN MAKING A
CONCILIATORY ARGUMENT IN FAVOR OF LIFE
DURING THE PENALTY PHASE THAT SERVED AS
A COMPLETE JUXTAPOSITION OF THE GUILT
PHASE AND IN CONJUNCTION THE DEFENDANT
WASNEVERCONSULTEDABOUTTHE
CONSEQUENCES OF SUCH A DEFENSE.

Defense counsel undoubtedly has a duty to discuss potential strategies with a defendant.

See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It has

been acknowledged by the United States Supreme Court that denial of responsibility or

commission of offenses during the guilt phase can compromise the defense's ability to persuade

the jury during the penalty phase. See Florida v. Nixon, 543 U.S. 175, 125 S.Ct 551 (2004). It is

conceded counsel is not required to obtain the defendant's consent to"every tactical decision."

Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646,98 L.Ed.2d 798 (1988) (an attorney has

authority to manage most aspects of the defense without obtaining his client's approval).

Attorneys representing defendants in capital cases face daunting challenges in developing

trial strategies, particularly where evidence of guilt is overwhelming. Prosecutors are more likely

-5-

293
 to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is

overwhelming and the crime heinous. See Goodpaster, The Trial for Life: Effective Assistance of

Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 329 (1983). In such cases, "avoiding

execution [may be] the best and only realistic result possible." ABA Guidelines for the

Appointment and Peiformance of Defense Counsel in Death Penalty Cases§ 10.9.1,

Commentary (rev. ed.2003), reprinted in 31 Hofstra L.Rev. 913, 1040 (2003).

Where guilt is overwhelming, defense counsel must reasonably decide to focus on the

trial's penalty phase, at which time counsel's mission is to persuade the trier that his client's life

should be spared. Where defense counsel is unable to negotiate a guilty plea in exchange for a

life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course.

See Lyon, Defending the Death Penalty Case: What Makes Death Different? 42 Mercer L.Rev.

695, 708 (1991) ("It is not good to put on a 'he didn't do it' defense and a 'he is sorry he did it'

mitigation. This just does not work. The jury will give the death penalty to the client and, in

essence, the attorney."); Sundby, The Capital Jury and Absolution: The Intersection of Trial

Strategy, Remorse, and the Death Penalty, 83 Cornell L.Rev. 1557, 1589-1591 (1998)

(interviews of jurors in capital trials indicate that juries approach the sentencing phase

"cynically" where counsel's sentencing-phase presentation is logically inconsistent with the

guilt-phase defense); id., at 1597 (in capital cases, a "run-of-the-mill strategy of challenging the

prosecution's case for failing to prove guilt beyond a reasonable doubt" can have dire

implications for the sentencing phase). In this light, counsel cannot be deemed ineffective for

attempting to impress the jury with his candor and his unwillingness to engage in "a useless

charade." United States v. Cronic, 466 U.S. 648, 656-657, n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984).

•6•

294
 Justice Ginsburg, delivering the Opinion for the Court in Nixon, noted:

"Renowned advocate Clarence Darrow, we note, famously employed a similar

strategy as counsel for the youthful, cold-blooded killers Richard Loeb and
Nathan Leopold. Imploring the judge to spare the boys' lives, Darrow declared: "I
do not know how much salvage there is in these two boys .... I will be honest with
this court as I have tried to be from the beginning. I know that these boys are not
fit to be at large." Attorney for the Damned: Clarence Darrow in the Courtroom
84 (A. Weinberg ed.1989); see Tr. of Oral Arg. 40-41 (Darrow's clients "did not
expressly consent to what he did. But he saved their lives."); cf. Yarborough v.
Gentry, 540 U.S. 1, 9-10, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)."
Nixon,.543 U.S. at 192.

In Occhicone v. State, 768 So.2d 1037 (Fla. 2000), the Florida Supreme Comt held that

"strategic decisions do not constitute ineffective assistance of counsel if alternative courses have

been considered and rejected and counsel's decision was reasonable under·the norms of

professional conduct." !d. at 1048.

In the instant case, there were "strategic issues" that were incredibly problematic. They

were not strategic at all; they were without strategy. The "defense" apparently formulated a

"strategy" that the argument should be posited that the Defendant did not conunit the crimes with

which he was charged in the face of the evidence. (R. Trial, Guilt Phase, 47-55, 1529-1560).

Thereafter, and upon conviction, it was determined (or predetermined) that the argument should

be asserted that Defendant should be the recipient of a life sentence due to mitigators and/or the

absence of aggravators. (R. Trial, Penalty Phase, 36-747). The conflicting defense theories

served to assure the rejection of counsels' arguments. as well as any and all of the Defendant's

mitigation which may have served to avoid the reconunendation of imposition of the death

penalty. This cannot be said to be strategy given the norms among advocates in death penalty

litigation. There is nothing strategic about the competing presentations. In fact, it is to the

contrary.

-7-

295
 Compounding matters further, counsel did not have discussion with the Defendant about

the merits, positives and negatives about making arguments in the differing phases of the u·ial

that were "in the alternative." The Defendant would not have allowed the presentation of his

defense, in the manner presented, had he been afforded the opportunity to ascertain knowledge of

the intended defense and been able to contribute.

Given the foregoing, counsel was ineffective in representing the Defendant. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a

reasonable probability that the outcome in the proceedings would have been different if counsel

had not embarked on their divergent defense. See !d. The Defendant's convictions and sentence

should be vacated.

II. TRIAL COUNSEL WAS INEFFECTIVE IN THEIR

FAILURE TO ADVISE THE DEFENDANT OF IDS
RIGHT TO ENTER A GUILTY PLEA TO FIRST
DEGREE MURDER AND TO PROCEED DIRECTLY
TO A PENALTY PHASE PROCEEDING IN AN
EFFORT TO AVOID THE JURY BEING TWICE
EXPOSED TO MATTERS THAT OBEJCTIVE
PERSONS WOULD FIND REPUGNANT.
"[M]any public defenders will be motivated by their ardent belief in the constitutional

values that the public defender upholds. At some point, however, abstract theoretical

justifications fall short in the face of reality. For example, defenders who are motivated by a

belief that no individual is guilty until proven so, soon find that such moral indeterminacy does

not comport with their daily experiences." Charles J. Ogletree, Jr., Beyond Justification:

-8-

296
 Seeking Motivations to Sustain Public Defenders, April1993 Harvard L.Rev. 1239 (citations

omitted). 2

Pleading guilty without a guarantee that the prosecution will recommend a life sentence

holds little if any benefit for the defendant. See ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases§ 10.9.2, Commentary (rev. ed.2003),

reprinted in 31 Hofstra L.Rev. 913, 1045 (2003) ("If no written guarantee can be obtained that

death will not be imposed following a plea of guilty, counsel should be extremely reluctant to

participate in a waiver of the client's trial rights."). Pleading guilty not only relinquishes trial

rights, it increases the likelihood that the State will introduce aggressive evidence of guilt during

the sentencing phase, so that the gruesome details of the crime are fresh in the jurors' minds as

they deliberate on the sentence. See Goodpaster, 58 N.Y;U.L.Rev., at 331; supra, at 558-559,

560-561.

However, counsel for a defendant in a capital case certainly has the obligation to explain

options and alternatives to a defendant. It is an acknowledged concept of law that a plea is

acceptable even where that plea contains a "protestation of innocence when ... a defendant

intelligently concludes that his interests require entry of a guilty plea and the record before the

judge contains strong evidence of actual guilt." See Florida Bar v. Levine, 571 So.2d 420, 421n.

1 (Fla.1990) quoting North Carolina v. Alford, 400 U.S. 25, 37,91 S.Ct. 160, 167,27 L.Ed.2d

162 (1970). Likewise, it is completely acceptable in the State of Florida for a defendant to enter

2 As this court is aware, the undersign~ has served as conflict counsel representing the indigent for more than
sixteen (16) years and has the utmost respect for those who do. Invariably, the instant ground will be incorrectly
interpreted as an attack on those who defend the indigent. That simply is not the case. This pleading is filed on
behalf of an individual on Death Row who relies upon the undersigned to champion his rights and to protect the
sanctity of his life without deference to bias or prejudice.

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 a guilty plea to first degree murder and move directly to a penalty phase proceeding. See Allred

v. State, 55 So.3d 1267 (Fla. 2010).

In the instant case, the Defendant was not advised of his ability to enter a guilty plea and

proceed directly to a penalty phase whether with or without a jury. He was not advised of the

potential ramifications of a jury being exposed to overwhelming evidence of guilt during the

guilt phase and being re-exposed to much of the same evidence again in the penalty phase.

Similarly, he was not advised of the negatives associate with a decision to enter a guilty plea and

proceed in that fashion. In short, the Defendant was always of the belief that he had no choice

but to proceed to trial and was not advised of the options and alternatives available and any

professional advice associated therewith. The Defendant's understanding was that he must plod

forward to trial with no option but to fight against the crushing weight of evidence against him.

Had the Defendant been advised of his due process rights and options, he would have

elected a different course and there is a reasonable probability the election would have impacted

the outcome. The Defendant should have been afforded this opportunity. His right to trial is just

that; his. It appears that trial counsel deprived the Defendant of an election of rights because of

their personal disagreement with their perception of the viability of the option. The Defendant

was not incompetent to proceed, thus allowing counsel to make decisions in his stead. He should

have been afforded the very rudimentary and basic options and the legal advice associated with

those options. 3 The Defendant contends that the outcome of the proceedings would be wholly

3 The options provided should have been: I) You may have a trial as it relates to your guilt. If found guilty, there
will be a penalty phase where a recommendation is made about the sente1ice being life or death. 2) You may waive
your right to the guilt phase and plea and then proceed to the penalty phase where the same recommendations will
be,made. 3) You can waive your right to a jury trial as it relates to both the guilt phase and/or the penalty phase.
Discussion should have been held as it relates to each option. 4) We can concede guilt in the guilt phase in order to
retain credibility for the penalty phase.

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 different had he been provided that information because the jury would not have been forced to

absorb days upon days of "defense" combatting the inevitable to only then be forced to a penalty

phase where the jury would be exposed to much of the same information on the heels of having

denied responsibility. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

III. TRIAL COUNSEL WAS INEFFECTIVE BY

PROVIDING AN INADEQAUTE DEFENSE TO
GARY MICHAEL HILTON AS A RESULT OF
RANCOR, DISHARMONY, DISCORD, ENMITY
AND HOSTILITY AMONG DEFENSE COUNSEL
AND WITHIN THE OFFICE OF THE PUBLIC
DEFENDER FOR THE SECOND JUDICIAL
CIRCUIT.
Counsel should ensure that the workload of defense team members in death penalty cases

is maintained at a level that enables counsel to provide each client with high quality legal

representation in accordance with these supplementary Guidelines and the ABA Guidelines as a

whole. "All too often in defender organizations[,] ... attorneys are asked to provide

representation in too many cases .... Unfortunately, not even the most able and industrious

lawyers can provide quality representation when their workloads are unmanageable. Excessive

workloads, moreover, lead to attorney frustration, disillusionment by clients, and weakening of

the adversary system. See ABA Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases§ 10.9.2, Commentary (rev. ed.2003), reprinted in 31 Hofstra

L.Rev. 913, 1045 (2003) citing ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-5.3 cmt. (3d ed. 1992); see also Model Code of Prof' I Responsibility EC 2-30 (1997);

Model Rules of Prof' I Conduct Rule 1.3 cmt. 2 (2002) ("A lawyer's work load must be

controlled so that each matter can be handled competently."); Kim Taylor-Thompson, Tuning Up

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Gideon's Trumpet, 71 Fordham L.Rev. 1461, 1509 (2003) ("If a defense delivery system does

not at once identify and impose limits on the number of cases for which an individual lawyer will

be responsible, case pressures will inevitably overwhelm the lawyer and compromise the

representation.").

In the case of mitigation specialists on the staff of an institutional defender office, the

office should implement mechanisms to ensure that their workload is maintained at a level that·

enables them to provide each client with high quality services and assistance in accordance with

these Guidelines. See ABA Supplementary Guidelines for the Mitigation Function of Defense

Teams In Death Penalty Cases (2008) § 6.1, reprinted in 36 Hofstra L.Rev. 677 (2008). It is the

duty of the defense team to aid counsel in coordinating and integrating the case for life with the

guilt or innocence phase strategy. !d.§ 10.1 (A).

Guideline 4.1 of the ABA Supplementary Guidelines for the Mitigation Function of

Defense Teams In Death Penalty Cases (2008) provides:

THE CAPITAL DEFENSE TEAM: THE ROLE OF MITIGATION SPECIALISTS

A In performing the mitigation investigation, counsel has the duty to

obtain services of persons independent of the government and the right to

select one or more such persons whose qualifications fit the individual

needs of the client and the case. Applications to the court for the funding

of mitigation services should be conducted ex parte, in camera, aod under

seal.

B. Counsel has a duty to hire, assign or have appointed competent team

members; to investigate the background, training and skills of team

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 members to determine that they are competent; and to supervise and direct

the work of all team members. Counsel must conduct such investigation of

the background, training and skills of the team members as will determine

that they are competent and must ensure on an ongoing basis that their

work is of high professional quality.

C. All members of the defense team are agents of defense counsel. They

are bound by rules of professional responsibility that govern the conduct

of counsel respecting privilege, diligence, and loyalty to the client. The

privileges and protections applicable to the work of all defense team

members derive from their role as agents of defense counsel. The

confidentiality of communication with persons providing services

pursuant to court appointment should be protected to the same extent as if

such persons were privately retained. Like counsel, non-attorney members

of the defense team have a duty to maintain complete and accurate files,

including records that may assist successor counsel in documenting

attempts to comply with these Guidelines.

D. It is counsel's duty to provide each member of the defense team with

the necessary legal knowledge for each individual case, including featirres ·

unique to the jurisdiction or procedural posture. Counsel must provide

mitigation specialists with know ledge of the law affecting their work,

including an understanding of the capital charges and available defenses;

applicable capital statutes and major state and federal constitutional

principles; applicable discovery rules at the various stages of capital

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 litigation; applicable evidentiary rules, procedural bars and "dooropening"

doctrines; and rules affecting confidentiality, disclosure, privileges and

protections.

A. COUNSEL WAS INEFFECTIVE AS A RESULT

OF THE OVERWHLEMING CASELOAD
ASSIGNED TO THE OFFICE OF THE PUBLIC
DEFENDER FOR THE SECOND JUDICIAL
CIRCUIT AS WELL AS INDIVIDUAL
ATTORNEYS AND THE APPORTIONMENT OF
CASES AMONG THE ATTORNEYS ASSIGNED
TO THE CAPITAL SECTION.
In the instant case, counsel was ineffective due to the high volume of death penalty cases

assigned to, among and within the Office of the Public Defender for the Second Judicial Circuit.

Lead counsel in the case expressed inability to properly represent the Defendant with effective

representation on several occasions due to over-extension and overwhelming caseload.. As a

result, the Defendant did not receive effective assistance of counsel. Counsel asked for relief and

, opportunity from the employer for the Defendant to have effective assistance of counsel. That

. relief did not come in a manner that afforded the Defendant effective assistance of counsel. The

employer's decision about making a transfer of the lawyer among the Defendant's "trial ranks"

as well as within the office, upon complaint, cannot be said to have afforded the Defendant with

effective assistance of counsel.

The Defendant did not receive effective assistant of counsel due to the high volume of

cases and the workload assigned to counsel. The outcome would have been different had the

Defendant not been placed in a circumstance where the foregoing situation transpired. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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 B. COUNSEL WAS INEFECTIVE BECAUSE THE
ENITRE DEFENSE TEAM WAS REASSIGNED
TO DIFFERENT ROLES WITHIN DAYS OF THE
DEFENDANT'S TRIAL LEAVING THEM EACH
INDIVIDUALLY IN CAP ABLE OF BEING
EFFECTIVE IN THEIR NEW AREA OF
ASSIGNMENT.
Defense counsel was ineffective for not presenting a cogent and consistent argument.

Counsel was "re-shuffled" to meet the emotional, psychological and physiological demands of

the defense team on the "eve of trial" and at the "eleventh hour." Each member of the team was

re-organized into a role that they had not previously been properly familiar with. This came as a

result of those matters addressed above in Argument III, Paragraph A. There is no question that

each defense attorney involved was familiar with the case, but counsel was rendered deficient

and ineffective due to the case being very specific in terms of role and function of counsel.

Essentially, the lawyers stopped being effective in their respective areas and hoped to do their

best going forward without the requisite familiarity with the facts specific to their role. 4

Lead counsel viewed the matter through one lens and asked for help or reassignment in

the case. The mitigation specialist viewed it through a different lens and resigned (emphasis

supplied) due to her work and advocacy not being utilized on behalf of the Defendani when it

should have been utilized. The youngest lawyers were zealous advocates and one felt so

disenfranchised and in such disagreement with the defense team that they resigned or were

terminated due to insubordination. 5 While each lawyer assigned to the case has "tried cases" in

4 The undersigned has over 150. banker's boxes of documents and dozens of "Gigsn of data. in this case and it is
difficult to imagine people being able to "brush up" on all of this in the final moments of trial preparation.
5 What is evident is that the lawyer filed a pleading styled "Notice pf Withdraw" in the midst of a trial; which is

arguably bizmre and best characterizes the fracture in the defense team.

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 the past, the re-shuffling process resulted in lawyers who do not regularly try jury trials doing

exactly that. The effort in this trial was inconsistent, incongruous and ineffective.

In this instance the Defendant was denied -effective assistance of counsel due to the

fracture, discord, disagreement and disharmony among defense counsel. Defense counsel was

incapable of rendering effective assistance of counsel due to the combativeness within. The

Defendant was an audience member to the trial within his trial team. Had this circumstance not

occurred, the outcome in the trial would have been different. See Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

C. COIDISEL FOR THE DEFENSE REJECTED AND

FAILED TO UTILIZE CRUCIAL MITIGATION
DURING THE PENALTY PHASE THAT WAS
DEVELOPED BY THE MITIGATION EXPERT
ASSIGNED TO THE CASE.
Defense counsel failed to present a wealth of information that would have served to

humanize the Defendant and would have served to have a meaningful impact on the jury's

recommendation of life versus death. More specifically, the mitigation expert developed Power

Point presentations on the life history of the Defendant. 6 Likewise, the mitigation expelt

developed a chronological history of the Defendant's medical and mental health history. 7 The

mitigation expert prepared an extensive list of witnesses that could provide an excellent

chronology of the Defendant's life and circumstances. The mitigation expert developed

6 The Power Point presentation tracks the Defendant in a very poignant manner.
7 This in(:luded history of his doctor who was over-prescribing medication to the Defendant on which the defense
was incredibly reliant and the State sought to. But, it included important information that the Defendant didn't
simply "self-diagnose" himself with Multiple Sclerosis. The records reflect that the doctor actually believed that the
Defendant had "relapsing remitting Multiple Sclerosis" and the doctor also wrote a note to a federal court seeking to
excuse him from jury duty opining that the Defendant had a "form of Multiple Sclerosis."

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 mitigation and evidence that would provide a jury with a very visceral view of the Defendant.

That evidence was not used.

Instead, defense counsel opted for a very clinical and sterile approach in seeking to avoid

the death penalty. The defense called a few "clinicians" to testify about the Defendant's

diagnosis and/or problems. More specifically, counsel relied upon Dr. Wu 8 to "carry the day"

with his PET scan analysis in conjunction with psychologists and neuro-psychologists who had

little or no familiarity with the history of the Defendant other than the documents they were

provided to review. The defense also called a couple of friends and family in support of his

character.

The Defendant's trial may well have been one where counsel "ground through" the guilt

phase and felt hopeless at the conclusion. Counsel is entitled to those feelings, but that is not

acceptable as it relates to the Defendant. First, defense counsel made the ineffective decision to

combat everything during the guilt phase. Second, defense counsel is required to be effective in

the penalty phase irrespective of whether they feel "bleak or blue" about the prospects and the

potential outcome. 9 The Defendant's penalty phase presentation reads "on a cold record" as one

which is devoid of any presentation of humanity.

In sum, the mitigation specialist assigned to the case prepared an extensive and massive

amount of mitigation evidence and testimony with witnesses who were able to testify about the

8 Dr. Wu has gained a dubious and questionable reputation as it relates to his credibility and testimony in death
penalty cases; particularly in Florida. See http://www. voiceofoc.org/oc south/article ca05b81 e-b794-11 e3-b723-
00I 9bb2963f4.html. A review of his Power Point presentation to the jury contains slides of that have absolutely no
relevance or bearing on the Defendant's case whatsoever.
'If counsel thought or had the premonition that "we have lost this jury," is it not wiser to tJu·ow the entire weight of
the defense's mitigation over the jury rail and for the purposes of hoping to get a division in the recommendation
and/or preserving the record?

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 Defendant's life circumstances, mental health, physical health, character, etc... Virtually none

of it was used. The mitigation expert resigned her long-held position as a result of this

circumstance. This speaks volumes as to the fracture in the defense.

The Defendant, after having established a relationship with the mitigation expert,

believed, desired and expected that significant mitigation developed and acquired would be

presented to the jury during a penalty phase. It was not presented. Counsel was ineffective for

failing to present the mitigation evidence. Had counsel presented the mitigation evidence there

is a substantial likelihood of a different recommendation in the penalty phase. See Strickland v.

., Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

D. COUNSEL WAS INEFFECTIVE FOR THEIR

FAILURE TO PRESERVE FOR APPEAL THE
DENIAL OF CAUSE CHALLENGES DURING
JURY SELECTION.
It is essential to defense counsel's role as advocate that he preserve reversible errors for

appellate review. The error at issue here is the trial court's denial of Trial Counsel's for-cause

challenge. Denial of a challenge for cause is grounds for reversible error. Hamilton v. State, 54 7

So. 2d 630, 632 (Fla. 1989). In order to preserve such an error for appellate review, where trial

counsel's motion to strike a juror for cause is denied, and he is thereafter forced to exhaust all

peremptory challenges, he must first "identify a specific juror whom he otherwise would have

struck peremptorily". Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990).

In the instant case, Jury Selection proceeded over the course of several days. (R. Jury

Selection, 1-1082). There were numerous "cause challenges" that were asserted during jury

selection. Many of them were granted, but many of them were not. While the defense team

made objections to the denial of cause challenges, the defense team failed to preserve any of

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 these objections for the purposes of appellate review by utilization of the process outlined in

Trotter.

The Defendant asserts that the failure to properly preserve the denial of cause challenges

for appellate review was and is ineffective assistance of counsel. See Strickland v. Washington, .

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moreover, the failure to preserve the

cause challenges was the result of the overall dynamic of the "defense team." The "team" was so

fractured that individuals did not clearly understand their assignments in order to afford effective

representation. There is not better demonstration than going to the effort of relentlessly

objecting and making arguments to preserve matters and then wholly failing to take the

. additional steps necessary to preserve the matter for appellate review. The Defendant would

assert that the unfulfilled preservation of the objections for cause that were denied or overruled

(R. Jury Selection, 1-1 082) served to prejudice the Defendant by denying him appellate review

of those issues and that the outcome of his direct appeal to the Florida Supreme Court would

have been different if those matters had been preserved. See !d. Likewise, this same inaction

combined with other matters serves to demonstrate the defense's lack of preparation and

collaboration to address vitallega!issues of this nature and served to provide the Defendant with

ineffective assistance of counsel. See !d.

E. COUNSEL WAS INEFFECTIVE FOR THEIR

FAILURE TO CALL MR. TABOR AND
DR.DELCHER AS WITNESSES DURING THE
GUILT AND PENALTY PHASE.
The defense team failed to call two vital witnesses during the guilt and penalty phase. It

is arguable that they should not have been called during the guilt phase, but it is definitive that

they should have been called in the penalty phase.

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 Mr. Tabor was the Defendant's long-time employer. He was and is capable of testifying

that he knew the Defendant and had employed him for approximately ten (10) year. l-Ie was and

is able to articulate that the Defendant was a good employee throughout that period of time until

his ultimate demise into abenant behavior. Mr. Tabor noticed anomalies in the Defendant's

behavior leading up to his anest after the Defendant began taking prescription drugs. Mr.

Tabor's reaction to these behaviors was one of concern and fear to the extent that he took

precautionary measures to defend himself.

Dr. Deicher was the doctor that Mr. Hilton saw on a routine basis who prescribed (over-

prescribed) him with attention deficit disorder medication. While inappropriate to call a witness

solely for the purposes of impeachment, the defense team would have been able to illicit

testimony in harmony with the defense theory which was: that Mr. Hilton had mental

conditions and infirmities, he was prescribed medication for those conditions and infi!Tllities, the

doctor was not diligent or attentive to the patient's usage of those drugs, the doctor had

participated in creating the Defendant's enatic and abenant behavior based on his conduct of

over-prescribing medication, and that the doctor had been disciplined for his prescription

behaviors.

The absence of these witnesses during the guilt phase served to deprive the jury of an

understanding of the Defendant's mental and physical health. It is conceded that the Defendant

did not pursue a defense of "not guilty by reason of insanity," nor did he pursue of a defense of

something akin to involuntary intoxication. However, there was most certainly a suggestion to

the jury during both phases of the trial.that Mr. Hilton should not be held responsible for the

complete culpability of his actions due to Dr. Deicher's actions impacting the actions of the

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 Defendant. These factors were likely relevant to the jury's determination of guilt and the degree

of guilt.

More importantly, both witnesses were extremely probative of any presentation to be

made during the penalty phase. Both witnesses served to mitigate the Defendant's conduct and

. provided rational explanation for his abrupt change in behavior and a chronological timeline

associated therewith. The calling of these witnesses would also have served to combat the

State's presentation that the abuse of prescription drugs was contrived or that it was simply a

convenient defense at the time of trial.

It is important to understand that the shuffling and mixing and matching of the roles of

the defense team in the immediate run-up to trial served to preclude the defense from

recognizing the crucial nature of these witnesses. Due to the disjuncture in the defense team,

counsel failed to recognize the impmt of these witnesses to the defense presentation. Given the

foregoing, it is the assertion of the Defendant that the failure to call the two witnesses in the guilt

and/or penalty phase constituted ineffective assistance of counsel whether it be evaluated alone

or in conjunction with other claims asserted. See Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

F. COUNSEL WAS INEFFECTIVE FOR THEIR

FAILURE TO TIMELY OBJECT TO THE
MENTION OF THE MOVIE "DEADLY RUN"
DURING DR. WU'S TESTIMONY WHICH THEN
SERVED TO "OPEN THE DOOR" FOR THE
STATE TO ELICIT TESTIMONY THROUGH
DR. PRICHARD AS WELL AS ARGUMENT.
The defense team did not interpose an objection to cross-examination testimony of Dr.

Wu that related to the Defendant's involvement in the filming of a "movie" called "Deadly Run."

(R. Penalty Phase, 146). This testimony served to "open the door" to testimony by Dr. Prichard

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 on rebuttal as well as during closing argument. (R. Penalty Phase, 633-686, 702-728). The

importance of this testimony or the opening of the door to it being introduced is that it allowed

the jury to learn that Defendant had been involved in some type of film about homicidal

behaviors. The cross-examination of Dr. Wu, the defense's own witness, went unchecked and

allowed for the admissibility of this evidence.

It is the Defense's position that this neglect was the result of the fracture in the defense

team and their lack of preparation and awareness of particular facts that their respective

witnesses may be reliant upon or may testify about. In this regard, it is the Defendant's assertion

that trial counsel was ineffective for failing to object and seek the exclusion of this matter. It

served to allow the jury to learn of an extremely prejudicial matter that would have otherwise not

been admissible. It fostered the ability to make argument in the same vein. The failure to object

served as ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

G. COUNSEL WAS INEFFECTIVE FOR THEIR

FAILURE TO PREPARE FOR, OBJECT AND
COMBAT TESTIMONY RELATED TO PRIOR
UNCHARGED ALLEGATIONS OF SEX
OFFENSES; SPECIFICALLY DURING DR.
PRICHARD'S TESTIMONY.
Dr. Prichard provided testimony about prior uncharged sex offenses in arriving at his

expert opinion during the penalty phase. (R. Penalty Phase, 590-594). His testimony was reliant

upon hearsay upon hearsay and he was allowed to share the information he was reliant upon with

the jury. No objections were made to the introduction of this testimony. There is no question

that Dr. Prichard's testimony was damning, but nothing was done to object, preserve for review

or counter Dr. Prichard's.

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 It is the Defense's position that the failure to prepare, objec~ preserve for review or

counter Dr. Prichard's testimony was ineffective assistance of counsel. This is particularly true

when viewed through the lens of the fact that the defense team was somewhat "cobbled together"

at the last minute in terms of their responsibilities. Counsel responsible for this witness was not

aware of the potential of this testimony, did not object to this testimony, did not preserve the

record and did not counter this testimony with anything that would affirmatively combat the

testimony. To this end, defense counsel was ineffective and was ineffective in conjunction with

the other errors amongst the defense team. See Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

H. COUNSEL WAS INEFFECTIVE FOR THEIR

FAILURE TO PREPARE FOR TESTIMONY
FROM A CORRECTIONAL OFFICER WHO
TESTIFIED TO OVERHEARING DIRECT
ADMISSIONS OF GUILT WHICH CHANGED
THE COMPLEXION OF THE CASE FROM ONE
OF CIRCUMSTANTIAL EVIDENCE TO DIRECT
EVIDENCE OF GUILT.
Counsel for the defense was unaware of the fact that a correctional officer would be

testifying to admissions that were overheard and attributed to the Defendant. The admissions

attributed to the Defendant changed the complexion of the case from being a case of

circumstantial evidence to direct evidence. In the mass and swath of depositions and discovery

taken by the defense team, the one page report by the correction's officer was overlooked and

care, attention and preparation was not paid to this issue that served to alter the defense.

The Defendant asserts that this lack of preparation and lack of ability to address this

testimony in conjunction with the entirety of the trial served to be ineffective assistance of

counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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 Likewise, this lack of preparation serves to be further demonstrative of the fracture and division

amongst the defense team that served to provide the Defendant with ineffective assistance of

COW1Sel. Jd.

I. COUNSEL WAS INEFFECTIVE FOR FAILING

TOBEPROPERLYPREPAREDFORTHE
TESTIMONY OF THEIR OWN EXPERT AND
INVITING THE IMPEACHMENT OF THEIR
WITNESS ON THE VERY ISSUE THAT THEY
SOUGHT TO UTILIZE AS A DEFENSE.
Defense counsel was completely unprepared for their own expert witness. (R. Penalty

Phase, 263-264). The defense team presented a theory of the Defendant being over-prescribed

medication and engaging in the behavior involved in the case. No sooner than the defense was

finished with their direct examination than the State sought to gather testimony that the witness .

had been guilty of the very same infraction. More specifically, the witness was guilty of over-

prescribing medications and had been reprimanded. Coilllsel was unfamiliar with this

circumstance and acknowledged it on the record. The transcript reads a bit like the scene from

the movie "A Time to Kill." 10

The Defendant asserts that this lack of preparation and lack of ability to address this

testimony in conjunction with the entirety of the trial served to be ineffective assistance of

coilllsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Likewise, this lack of preparation serves to be further demonstrative of the fracture and division

amongst the defense team that served to provide the Defendant with ineffective assistance of

counsel. I d.

10 http://www.imdb.com/title/ttOlJ 7913/ The movie where Matthew McConaughey unwittingly places a witness on

the witness stand who has previously been convicted of a sex crime on a mi11or [although he went on to marry that
person] and the defense had no idea of the vulnerability of their witness.

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 IV. TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO ADEQUATELY INVESTIGATE,
RESEARCH AND PRESENT EVIDENCE RELATED
TO THE DEFENDANT'S EARLY CIDLDHOOD
DEVELOPMENT, BRAIN TRAUMA, INJURY,
COGNITIVE IMPAIRMENT AND MENTAL
HEALTH BEFORE AND AFTER WHAT WAS
PRESENTED AT TRIAL AS WELL AS THE
EPIDEMIOLOGY ASSOCIATED AND TO PRESENT
EVIDENCE TO THAT END.
The general rule is "[a]n attorney has a duty to conduct a reasonable investigation,

including an investigation of the defendant's background, for possible mitigating evidence."

Ventura v. State, 794 So.2d 553, 570 (Fla. 2001) (quoting Rose v. State, 675 So.2d 567, 571

(Fla.l996) ).

On March 31, 2009, Chris EUrich forwarded a memorandum for the Office of the Public

Defender for the Second Judicial Circuit by facsimile to the Miami-Dade County Clerk of

Comts. This memorandum requested records related to the Defendant's arrest "around

September 1961 for attempted murder." No effort was made to physically go to obtain those

records beyond the facsimile mentioned above.

Ms. Kimberly Stevens, Esq. was court-appointed to represent the Defendant in United

States v. Gary Michael Hilton, 1: 11-cr-00049-MR-DLH-1, in the United States District Court for

the Eastern District of North Carolina. Ms. Stevens has been a civil and criminal litigator in the

trial and appellate courts of the State of North Carolina since 1993, and was a law clerk to United

States District Judge Patrick J. Duggan, Eastern District of Michigan, Detroit Division, in 1992.

Ms. Stevens has provided direct trial and post-conviction representation in approximately 35

death penalty cases. She has been appointed by the federal courts as learned counsel in capital

cases in North Carolina, Virginia, Nevada and Puerto Rico. She is also a consulting capital

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 attorney in conjunction with the Trial Assistance Unit at the North Carolina Office of Indigent

Defense Services for trial counsel in capital cases throughout the State of North Carolina. She

served as an Assistant Capital Defender for the State of North Carolina in recent years.

Ms. Stevens and her staff directly communicated with the Miami-Dade County Clerk of

Court and Juvenil.e Services and physically went to attempt to obtain documents. During that

effort, Ms. Stevens and her defense team learned that the records related to the Defendant had

recently been destroyed and would have been available had the Defendant's trial cotinsel gone to

obtain them during the pendency of the instant case. This related to both court records as well as

medical records.

A reconstruction of the record reflects the Defendant in juvenile custody on or before

September 6, 1961. He was placed in the care and custody of a Mrs. Ruth Heller on or about

September 13, 1961. On September 15, 1961, the following entry appears, "Order: Gary com. to

psychiatric in patient services of Jackson Memorial for observation evaluation and possible

treatment; authorities to advise Court when child ready to be discharged." It does not appear that

he was released approximately one month later. On May 7, 1962, the Defendant was removed

from Ms. Heller's care and custody and transferred to that of Mr. and Mrs. Frank Capuzzi. On

January 25, 1963, the Defendant was removed from the care and custody of Mr. and Mrs.

Capuzzi and returned to his mother.

Had this information been investigated and properly presented it would have enabled the

defense to paint an entirely different picture of the Defendant during the penalty phase and to

combat the State's aggressive contention by their own expert. (R. Penalty Phase, 568-684).

Defense counsel would have been able to adequately portray and describe the Defendant from a

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very young age to the point of the offense that is the subject of this case. That would have

included a description of his incarceration at a young age, his psychiatric hospitalization at a

young age, the psycho-social reasons of the crime for which he was incarcerated at a young age,

his rape by an attorney at a very young age, etc... The defense was ineffective in their failure to

start at the beginning of the Defendant's life and to explain sequentially and chronologically how

a person arrives at the conduct in the instant case.

During the testimony of the State's expert, he was essentially reliant upon what he heard

in the courtroom during testimony as well as historical documents he was afforded the

opportunity to review. He concluded and opined on several occasions that the Defendant had

certain psychological features and defects without the benefit of knowing the Defendant's full

psychological development history. This served as a powerful too!for the State to rebut and

rebuff the scant defense amounted.

Defense counsel was ineffective in their failure to properly investigate matters related to

the Defendant's early childhood development, brain trauma, injury, cognitive impairment and

mental health both before and after the evidence presented at trial. Had counsel been effective,

the outcome of the trial would have been different. See Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

V. TRIAL COUNSEL WAS INEFFECTIVE FOR THEIR

FAILURE TO INVESTIGATE THE DEFENDANT'S
ACTUAL MENTAL HEALTH AILMENT AND
DIAGNOSIS AND PRESENT EVIDENCE DURING
THE PENALTY PHASE RELATED TO THE
SPECIFIC DIAGNOSIS AND CONDITION.

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 The generi3.] rule is ''[a]n attorney has a duty to conduct a reasonable investigation,

including an investigation of the defendant's background, for possible mitigating evidence."

Ventura v. State, 794 So.2d 553,570 (Fla. 2001) (quoting Rose v. State, 675 So.2d 567, 571

(Fla.1996)).

In the instant case, there is evidence the Defendant was diagnosed with Multiple

Sclerosis. Multiple Sclerosis (MS) is a cell-mediated autoimmune condition characterized by

repeated episodes of inflammation of the nervous tissue in the brain and spinal cord, causing loss

of the insulating myelin sheath. It is documented science that MS can create lesions on the brain

that serve to create brain atrophy and cognitive impairment. See

http:/larchneur.jamanetwork.com/article.aspx?articleid-785384. Defense counsel did call a

neurologist as an expert witness in the defense case, but that was to generically testify about

observed abnormalities in the brain function based on analysis of a PET scan. The Defendant

was never properly evaluated for his neurological condition to discern whether there was an

arguable and contributing defense that would serve in mitigation. Instead, the State was enabled

to argue that the Defendant "self-diagnosed" himself with MS and utilized this point through

their expert witness' testimony.

The Defendant asserts that he does in fact have a neurological condition that impacts his

cognitive capacities. Had defense counsel taken the time obtain a proper evaluation and

diagnosis, the outcome of the trial would have been different. See Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel was ineffective for failing to do so

and present evidence of such.

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 VII. MR. IDLTON'S EXECUTION WOULD VIOLATE
THE EIGHTH AMENDMENT.
A. EXECUTING THE MET ALLY ILL
CONSTITUTES A VIOLATION OF THE EIGHTH
AMENDMENT'S PROIDBITION AGAINST
CRULE AND UNUSUAL PUNISHMENT.

Courts identify "the evolving standards of decency that mark the progress of a maturing

society," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion), in order to determine which

punishments "are forbidden," Wilkerson v. Utah, 99 U.S. 130, 136 (1879), by the Eighth

Amendment. Evolving standards can be identified via "objective indicia," Roper v. Simmons,

543 U.S. 551,572 (2005), and by "the standards elaborated by controlling precedents and by the

Court's own understanding of the Eighth Amendment's text, history, meaning, and purpose."

Kennedy v. Louisiana, 128 S.Ct. 2641, 2650 (2008); see also Graham v. Florida, 130 S.Ct. 2011,

2021 (2011). Because of his mental illness, brain damage, bipolar disorder, anxiety disorder,

depression and. multiple sclerosis at the time of the offense, Defendant's execution would violate

the Eight Amendment.

"The concept of proportionality is central to the Eighth Amendment." Graham, 130 S.Ct.

at 2021 (2011). Our evolved standards of decency limit the death penalty to "those offenders

who commit 'a narrow category of the most serious crimes' and whose extreme culpability

makes them 'the most deserving of execution,"' Kennedy, 128 S.Ct. at 2650 (quoting Roper, 543

U.S. at 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). An offender must

truly be the "worst of the worst," Kennedy, 128 S.Ct. at 2650, to be eligible for execution; and to

be the worst, a defendant must be the most "culpable" of offenders. Atkins, 536 U.S. at 319 ("the

lesser culpability of the mentally retarded"); Roper, 543 U.S. at 571 (relying on "the diminished

culpability of juveniles").

. 29.

317
 In Hall v. Florida, Justice Kennedy writing for the Court opined:

"They have a "diminished ability" to "process information, to leam from experience, to

engage in logical reasoning, or to control impulses ... [which] make[s] it less likely that they can

process the information of the possibility of execution as a penalty and, as a result, control their

conduct based upon that information." Atkins, 536 U.S., at 320, 122 S.Ct. 2242. Retributive

values are also ill-served by executing those with intellectual disability. The diminished capacity

of the intellectually disabled lessens moral culpability and hence the retributive value of the

punishment. See id., at 319, 122 S.Ct. 2242 ("If the culpability of the average murderer is

insufficient to justify the most extreme sanction available to the State, the lesser culpability of

the mentally retarded offender surely does not merit that form of retribution")." Hall, 134 S.Ct.

1986 (2014).1l

Given the evidence in the Defendant's case of mental illness, brain damage, bipolar

disorder, anxiety disorder, depression and multiple sclerosis, he does not qualify for "the worst

of the worst" and his death sentence is disproportionate punishment under the Eighth

Amendment. The Defendant suffered a brain injury at a young age, has manifested

psychological and mental impairment from a very young age forward, suffered depression the

entirety of his life, has been diagnosed as bi-polar, has suffered anxiety, has malformations in

crucial functioning areas of his brain and was diagnosed with Multiple Sclerosis.

II On its face, much ofthe reasoning in Hall seem logically to apply to persons with mental illness:

If Defendant's doctors and medical history are correct, Defendant's mental deficiencies are comparable in
severity to mental retardation. In Hall, the Court held that to have a rigid test defining what constitutes
mental rerordation because the test in Florida failed to take into account the error implicit in the test's own
design, but it also precluded the court from considering deficits in the defendant's adaptive functioning
over his life.

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318
 When a defendant's mental functioning is seriously compromised, the defendant is not

the worst of the worst. For example, the mentally retarded are not the most culpable because

they have "disabilities in areas of reasoning, judgment, and control of their impulses" and "do

not act with the level of moral culpability that characterizes the most serious adult criminal

conduCt." Atkins, 536 U.S. 306-307. A person who has diminished capacities to understand and

process information, to communicate, to abstract from mistakes and learn from experience, to

control impulses and to understand the reaction of others," Atkins, 536 U.S. at 318, is not the

most culpable. 12

Similarly, the Supreme Court held that the Eighth Amendment ban on excessive and

cruel and unusual punishments prohibits the execution of juveniles because of their "diminished

culpability," their developing brains, and their propensity for "'ill-considered actions and

decisions."' Roper, 543 U.S. at 568. The Atkins and Roper categorical bans on executions ought
'
to apply to the seriously mentally ill, and to persons with brain impainnent. 13

12
On its face, much of the reasoning in Atkins seems logically to apply to persons with mental illness in the same
manner as described in Hall.

People v. Danks, 82 P.3d 1249, 1285 (S.Ct. Cal2004) (Kennard concurring/dissenting); see also Bryan v. Mullin,
335 F.3d 1207, 1237 (JOili Cir. 2003) (dissenting op.; Supreme Court's logic applies to those with severe mental
deficiancies"); Corcoran v. State, 774 NE 495 (Ind. 2002) (Rucker J., dissenting) (Atkim rationale is ']ust as
compelling" for prohibiting the execution of the "seriously mentally ill"); State v. Nelson, 803 A2d I (NJ 2002)
(Zappala, J., concuning)("Lesser culpability" of seriously mentally ill defendant is indistinguishable from mentally
retarded defendant).

13Several state courts have refused to recognize that Atkins and/or Simmons require that seriously mentally ill
and/or brain damaged individuals, with their reduced culpability, cannot be executed under the Eighth Amendment.
See, e.g., Reese v. State, 14 So.3d 913 (Fla. 2009); State v. Hancock, 840 N.E.2d 1032 (Ohio 2006); Lewis v. State,
620 S.E.2d 778 (Ga. 2005).

• 31 •

319
 In the instant case, the Defendant presented extensive evidence of mental health issues,

defect, injury and impairment. As such, the execution of the Defendant is violative of the Eighth

Amendment to the United States Constitution.

B. FLORIDA'S APPLICATION OF THE DEATH

PENALTY VIOLATES EVOLVING STANDARDS
OF DECENCY AND IS ARBITRARY AND
CAPRICIOUS BECAUSE IT ALLOWS A SIMPLE
MAJORITY OF THE JURY TO RECOMMEND
DEATH AND THE TRIAL JUDGE TO
DISREGARD A LIFE SENTENCE
RECOMMENDATION.
The death penalty, as enacted in section 921.141, Florida Statutes is unconstitutional

because it poses a risk of arbitrary enforcement based on non-unanimous juror death sentence

recommendations and judicial override. As noted by Justice O'Connor in her concurrence to

Eddings v. Oklahoma the criminal justice system must go "to extraordinary measures to ensure

that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is

humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or

mistake." Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (O'Connor, J., concurring). The

arbitrary nature of Florida's use of the death sentence, in this case, is in violation of the Eighth

Amendment of the Consitution and the corresponding provision of the Florida Constitution. U.S.

Const. amend. VIII; art. I, § 17, Fla. Const.

Eighth Amendment jurisprudence requires the courts consider "the evolving standards of

decency that mark the progress of a maturirig society." Roper v. Simmons, 543 U.S. at 574;

Atkins v. Virginia, 536 U.S. 304, 316 (2002). Florida's jury recommendation system iri capital

cases is not in accord with the evolving standards of decency because juries are neither required

to issue a unanimous death sentence on punishment, nor is their recommendation biriding on the

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320
 trial court. Pursuant to Graham v. Florida, the Eighth Amendment's Ctuel and Unusual

Punishments Clause analysis requires that a coutt make two determinations on a "sentencing

practice at issue." 560 U.S._, S.Ct. 2011 (2010). Courts are first to take into account

"objective indicia of society's standards as expressed in legislative enactments and state

practice." !d. See also Atkins, 536 U.S. at 312 ("[T]he 'clearest and most reliable objective

evidence of contemporary values is legislation enacted by the country's legislatures."') (quoting

Perry v. Lynaugh, 492 U.S. 302 (1989)). Second, courts consider whether the punishment at bar

comports with "the standards elaborated by controlling precedents and by the Court's own

understanding and interpretation of the Eighth Amendment's text, history, meaning, and

purpose." ld.

With respect to the societal standards, thirty-two out of thirty-four death penalty states

require unanimous death sentences and do not allow judges to override thejury. Unanimous

Sentencing in Capital Felonies, http://{loridacapitalresourcecenter.org!statutes-rules!proposed-

legislation/20121. Only in the two remaining death penalty states, Florida and Alabama, is

unanimity not required. Moreover, in these two states, the jury's recommendation is non-binding

on the judge, meaning that the court can override a life recommendation and sentence the

defendant to death. § 921.141(3), Fla. Stat. Finally, Florida is the only state in the union that

allows juries to recommend a death sentence by a simple majority. 14 See Whitfield v. State, 706

So. 2d 1 (Fla. 1997).

It is acknowledged that the recommendation of the jury in the Defendant's case was

unanimous. However, it is also acknowledged that Florida is an outlier that does not comport

14 Alabama requires that at leas.t lO jury members recommend death. Unanimous Death Sentences in Florida?,
http://www. wjhg.com/home!headl ines!Unanimous-Death-Sentences-in-Florida-185585892.html ..

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321
· with societal norms where the structure calls for the jury to make a "recommendation" that need

not be unanimous and can be overridden by a trial court.

The second reason Florida's death sentencing scheme is out of step with the Eighth

Amendment's evolving standards of decency is because it is the only state that allows a judge to

ovenide a jury's recommendation of life without parole. That is, a Florida jury's "sentence" is

merely a non-binding recommendation. See § 921.141 (2), Fla. Stat. Florida's jury

recommendation is an outlier among the standards elaborated by the controlling norms. Thirty-

two other states have determined that a jury of one's peers, not a single judge, who may be

subject to pressures of retention or election, must decide whether a citizen should be executed by

the state.

Florida's high death sentencing rates, which seem only to climb as other states' rates

decline, demonstrate an arbitrary effect of a system that does not require juror unanimity and

only contemplates a recommendation. Florida has the fourth largest population in the nation.

United States Census Bureau Annual Population Estimates,

http://www. census.gov/popest/data/state/totals/2012/index. html. Yet, Florida has the second

largest number of inmates on death row, or 395. Death Row Roster,

http://www.dc.state.tl.us/activeinmatesldeathrowroster.asp. It has one and a half times the

population of Pennsylvania, but twice the number of death-sentenced individuals.

Florida's percentage of annual death sentences are stunning. In 2012 and 2013, seventy-

nine individuals nationwide were sentenced to death in each year, the second lowest number

since the death penalty was nationally reinstated in 1976. DPIC,

http://www. deathpenaltyinfo. org/death-sentences-united-states-1977-2008. Fourteen of those

- 34.

322
 in 2013 and twenty of those in 2012 were in Florida Florida accounted for 18% of nationwide

death sentences in 2013 and 25% in 2012. It is no surprise with these growing numbers and

Florida's outlier structure, Florida has the highest number of death row exonerations in the

country- twenty-three, or 16.5% of the nation's 139 wrongful capital convictions. DPIC,

http://www. deathpenaltvin(o. org/florida-1. Taken together these statistics reveal that an illllocent

person charged with first degree murder is significantly more likely to be sentenced to death in

Florida than if that crime was committed in any other death penalty state in the country.

Second, courts consider whether the punishment at bar comports with "the standards

elaborated by controlling precedents and by the Court's own understanding and interpretation of

the Eighth Amendment's text, history, meaning, and purpose." Jd. The Supreme Comt's

precedent emphasizes that the Eighth Amendment "ca!lllot tolerate the infliction of a sentence of

death under legal systems that permit this uniq11e penalty to be so wantonly and so freakishly

imposed." Furman v. Georgia, 408 U.S. at 310 (Bre!lllan, J., concurring). Florida's death

penalty system is a complete anomaly among the other thirty-three death penalty states.

Because Florida's death penalty system is not in step with the "evolving standards of

decency," the death penalty in this case is cruel and unusual punishment in violation of the

Eighth Amendment to the United States Constitution and article I, section 17 of the Florida

Constitution.

CONCLUSION

For the foregoing reason the Defendant's sentence of death should be vacated due to

ineffective assistance of counsel.

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 T A. MORRI , ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex @ramlawyer.com
efiling@ramlawyer.com

ATTORNEY FOR DEFENDANT

COURT APPOINTED

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324
 Sworn Oath

UNDER PENALTY OF PERJURY, I certify that I have read theforegoing

motion and the facts alleged are true.

Gary hael Hilton

Defendant

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325
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4'b Floor, 301 S. Monroe Street, Tallahassee, FL, and Carine Emplit,

carine.emplit@myfloridalegal.com,Capital Appeals Bureau Office of the Att rney G~

01 The Capitol, Tallahassee, Florida 32399-1050 on th'

R BERT A MORRIS, ESQUIRE

The Law Offices of Robe1t A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex @ramlawyer.com
efiling@ramlawyer.com

ATTORNEY FOR DEFENDANT

COURT APPOINTED

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326
Filing# 30160644 E-Filed 07/28/L015 10:28:10 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

vs.

GARY MICHAEL HILTON,

Defendant.
------·--------------~/
ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO AMEND
INITIAL POST CONVICTION MOTION

THIS cause coming on to be heard pursuant to Defendant's Motion for

Leave to Amend Initial Post Conviction Motion and Incorporated Memorandum of

Law, filed on July 24, 2015, and the CoUJt being otherwise fully advised in the

premises, it is hereby:

ORDERED AND ADJUDGED that the motion be granted. The state shall

file an amended answer within 20 days of the date of this order.

+~
DONE and ORDERED this J-2 day of July, 2015, in Tallahassee, Leon

County, Florida.

e.
JAMES C. HANKINSON
Circuit Judge

See Service List

327
 SERVICE LIST

Carine L. Emplit
Carine.emplit@myfloridalegal.com

Georgia Cappleman
SA02 LeonFelonv@leongountyfl.gov

Eddie Evans
Assistant State Attorney
Office of the State Attorney
301 S. Monroe Street, Suite 475
Leon County Courthouse
Tallahassee, FL 32301

Robert A. Morris, Esquire

.g)ex!alramla wver. com
en l i ng@ramla wyer. co Jl1

328
Filing# 30235439 E-Filed 07/2'1!2015 01:57:34 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF-697A

vs. DIV.: FELONY

GARY MICHAEL IDLTON, DEATH PENALTY

Defendant.
----------~------~/

MOTION TO INCUR COSTS FOR EXPERT WITNESS

FOR FORENSIC PSYCHOLOGIST AND/OR MOTION TO DECLARE §27.711,
FLORIDA STATUTES UNCONSTITUTIONAL AS CONFISCATORY

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, and moves to incur costs for a forensic psychologist and in support thereof, shows the

following:

1. The Defendant is indigent and the undersigned was appointed by the Court to

represent the Defendant in this capital collateral post-conviction proceeding.

2. The defense requires the assistance of a forensic psychologist in order to adequately

present the defense's case.

3. The past forty eight (48) hours have presented extraordinary circumstances for the

Defense in this case. The Defense anticipated calling Dr. Harry McClaren as an

expert witness as well as a factual witness. Dr. McClaren was originally retained by

the Office of the Public Defender to serve as an expert witness when the instant case

was at the trial level. He served as a consultant and conducted a tremendous amount

of research that included interviews and evaluations of the Defendant as well as

collateral investigation in order to form an expert opinion. Ultimately, Dr. McClaren

329
 was not utilized as a witness during the penalty phase. It is now argued that this was

a critical error constituting ineffective assistance of counsel because the jury did not

have the benefit of a proper forensic psychological profile of the Defendant during

the penalty phase of the trial that encompassed his complete psycho-social profile as

well as dispelling arguments related to the Defendant's psychopathy.

4. The Defense has never been in a rush to seek the appointment of Dr. McClaren as an

expert witness in the instant proceeding. This is primarily due to the fact that Dr.

McClaren was originally involved in the case and had a great deal of familiarity with

the case that did not necessitate "authorization to incur costs" at an earlier point. The

undersigned had prepared a motion seeking the "authorization to incur costs" which

was to be filed this week. 1

5. Regrettably, Dr. McClaren, who was a personal and professional acquaintance,

passed away within the last forty eight (48) hours. This has left the Defense in a

somewhat dire situation due to the loss of a crucial witness as well as a hearing date

that is in the near future. Dr. McClaren was not only crucial for his ability to testify

about the Defendant's psycho-social makeup, but he was also integral in being able to

speak to matters related to the breakdown in the internal workings of the defense team

as well as his research that went without presentation. Likewise Dr. McClaren was

able to provide testimony about the Defense's ability to anticipatorily diffuse

testimony from Dr. Prichard and render an opinion about Dr. Prichard's

"overreaching opinion" based on inadequate and incomplete data.

1 The undersigned contemplated attaching the motion that was/is prepared as an exhibit, but did not see the necessity

of it.

330
 6. In that regard, the undersigned immediately initiated telephone communications

yesterday with respected professionals in the forensic psychology field. In each

instance, none of them are able to be available and/or prepared for the presently

scheduled hearing on September 8-9, 2015.

7. The undersigned seeks authorization to retain the services of Dr. Terrance Leland,

PhD. The undersigned seeks a maximum compensation amount of $15,000.00 at a

rate of $150 per hour. 2

8. Section 27.711 (6), Florida Statutes (2015) provides:

"An attorney who represents a capital defendant is entitled to a

maximum of $15,000 for miscellaneous expenses, such as the costs
of preparing transcripts, compensating expert witnesses, and
copying documents. Upon approval by the trial court, the attorney
is entitled to payment by the Justice Administrative Commission of
up to $15,000 for miscellaneous expenses, except that, if the trial
court finds that extraordinary circumstances exist, the attorney is
entitled to payment in excess of $15,000."

9. Dr. Leland is a respected and experienced forensic psychologist who has testified as

an expert witness in a number of death penalty proceedings as well as other cases.

This Court is familiar with his credentials and his expertise.

10. The record that exists in the instant case is massive. There are over one hundred

(100) banker's boxes as well as thousands of pages of files that are digitally stored. 3

Candidly, in seventeen ( 17) years of practice, the undersigned has never encountered

a more voluminous case. The case files have literally filled an entire executive office

2 The hourly rate comports with the standard hourly rates afforded by the Justice Administration Commission for
mental health experts. See http://www.justiceadmin.org/court app counselffmmsandrates.aspx, CIRCWT 2- DUE
PROCESS COSTS ESTABLISHED RATES FOR SERVICES PROVIDED ON. OR AFTER JULY I, 2010.
3 Mr. Hilton is labeled as a "serial killer" and his counsel from offenses in the United States District Court for the

Western District of North Carolina was kind enough to facilitate electronic file sharing that has served to save the
State of Florida thousands of dollars. The contents of those documents were related to the instant offense, offenses
in North Carolina and offenses in Georgia. They are highly relevant to the matters at issue.

331
 and the electronic data could not be stored on the finn's hard drive. A separate hard

drive had to be purchased to facilitate storage. The penalty phase transcripts alone

are several hundred pages and "a day's worth of reading." This is without regard to

·the myriad of documents that need to be contempiated such as: Mr. Hilton's

dependency proceeding records, Mr. Hilton's juvenile delinquency records, Mr.

Hilton's foster home records, Mr. Hilton's academic records, Mr. Hilton's arrest

records, Mr. Hilton's familial history and records, Mr. Hilton's military service

records and a plethora of other records and documentation. It has taken dozens, if not

hundreds of hours, for the undersigned to become familiar with the file.

11. The authorization for "costs" sought herein serves to exceed the standards that are set

forth in §27.711 (6), Florida Statutes (2015). The undersigned has incurred certain

costs that have already been "billed against the $15,000.00 allotment." They are

nominal in nature and counsel has not abused the financial infrastructure established

by the legislature or the Justice Administration Commission. To that end, the costs

have been for necessities such as copies, transcripts and rudimentary materials. The

undersigned is seeking the appointment of 3 experts. One is Dr. Leland who is the

subject of this motion. The other is a lawyer and legal expert in death penalty

litigation, Clyde Taylor, who is the subject of an additional motion. The final one is

an additional legal expert who is an expert in death penalty litigation and capable of

testifying to matters that Mr. Taylor is not going to or unable to adequately address.

The combined "costs" exceed the provided statutory structure.

12. The undersigned would assert, in the absence of this Court finding extraordinary

circumstances and granting relief, that §27 .711, Florida Statutes (2015) is

332
 unconstitutional due to its confiscatory nature. See Makemson v. Martin County, 491

So.2d 1109 (Fla.l986). The statute places arbitrary maximums on the amount an

attorney may spend in defense of their client in.a case where the ultimate penalty is at

stake. The statute does not account for differences or variances in cases. It does not

contemplate the reality that death penalty cases are not "cookie cutter." They are not

all the same with the same issues.

13. The instant case is fraught with difficulties for any practitioner. The defense is

saddled with examining issues related to the guilt phase that contemplate homicides

in three different states as weii as the evidence attendant thereto. Likewise, the

defense is burdened with a exploring a psychological history that was not explored

and presented during the initial trial. This history spans the entirety of the

Defendant's life and dates back sixty (60) plus years and involves a massive amount

of documents.

14. Dr. Leland will be tasked with reviewing ali of the documents mentioned above. It is

more problematic that Dr. Leland will now be tasked with reconstructing Dr.

McClaren's notes and information in order to form an opinion as well.

15. The undersigned has not taken a carte blanche "punch the financial ticket" on

expenses. To the contrary, the undersigned has presented a measured andfiscaily

conservative and responsible approach to being able to appropriately defend Mr.

Hilton. The authorization sought has contemplated 100 hours of time or two work

weeks. This is inclusive of review of the record, travel to and from Death Row,

evaluative reports as we ~s testimonial time. This does not seem excessive.

333
 16. Counsel for the defense has not conferred with As.sistant Attorney General Ms.

Emplit as it relates to the relief sought in this motion. Seemingly, the prosecutorial

arm of the State of Florida does not have an interest in the present Motion.

Nevertheless, Ms. Emplit apparently embraces the Defense's requested relief based

on her pleading filed on June 30, 2015 seeking to compel counsel to seek experts. 4

Counsel for the defense has had some difficulty discerning who actually needs to be
'
consulted and contacted for the State of Florida. On the one hand, The Honorable

William N. Meggs has attended hearings from the Office of the State Attorney.

Likewise, Deputy Chief State Attorney Georgia Cappleman has attended hearings.

Assistant State Attorney Eddie Evan has also been participatory. The State of Florida

has also included Assistant Attorney General Ms. Emplit, Assistant Deputy Attomey

General Ms. Snurkowski and another attorney whose name eludes the undersigned. It

is unclear to counsel who is "in charge" for the State of Florida. Be that as it may,

defense counsel has remained in relatively constant contact with Assistant State

Attorney Eddie Evans about the procedural and factual aspects of the case. There

have been no expressions of objection of the appointment of Dr. Leland during

discussions with Mr. Evans or Ms. Cappelman.

17. The undersigned has contacted Assistant General Counsel Bradley Bischoff from the

Justice Administrative Commission. Mr. has no objection to the authorization to

incur costs insofar as the request is within the statutory parameters. However, he

4 Ms. Emplit's motion can potentially be construed as the State's expression of concern that counsel is rendering
ineffective assistance in this proceeding. In the alternative, it can also be construed as the State simply desiring to
be prepared for the hearing that is in September. ·

334
 objects on behalf of the Justice Administration Commission to any authorization

outside those parameters.

18. Counsel for the Defense requests that this Court recognize the extraordinary nature of

this case, the extraordinary nature of the circumstances that presently beset the

Defense and enter an order with the requisite findings and authorizing the Defense to

incur the costs requested.

WHEREFORE, the Defense requests this Court enter an order authorizing the defense

to incur costs for Dr. Terrance Leland up to a maximum of $15,000.00 at the statutorily

a
authorized rate of $150.00 per hour with finding that such authorization is necessary due to

the extraordinary circumstances of the instant case.

Respectfully submitted,

ROBERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue.
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex @ramlawyer.com

335
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a tme copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant General

Counsel Bradley Bischoff, Justice Administrative Commission, pleadings@justiceadmin.org,

Deputy Chief State Attorney Georgia Cappleman, SA02 LeonFelony@leoncountvfl.gov, State

Attorney's Office, Leon County Courthouse, 41h Floor, 301 S. Monroe Street, Tallahassee, FL,

and Carine Emplit, carine.emplit@myfloridalegal.com, Capital Appeals Bureau, Office of the

Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 291h day of July,

2015.

~
[ .

ROBERT A. MORRIS, ESQUIRE

336
 Filing# 30235439 E-Filed 07/2'7,2015 01:57:34 PM

1 IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,
CASE NO.: 2008-CF-697A

vs. DIV.: FELONY·

GARY MICHAEL ffiLTON, DEATH PENALTY

Defendant.

MOTION TO INCUR COSTS FOR EXPERT WITNESS

FOR LEGAL EXPERT AND/OR MOTION TO DECLARE §27.711, FLORIDA
STATUTES UNCONSTITUTIONAL AS CONFISCATORY

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, and moves to incur costs for an attorney who is an expert in death penalty litigation and

in support thereof, shows the following:

1. The Defendant is indigent and the undersigned. was appointed by the Court to

represent the Defendant in this capital collateral post-conviction proceeding.

2. The defense requll:es the assistance of a legal expert in order to adequately present the

defense's case.

3. Section 27.711 (6), Florida Statutes (2015) provides:

"An attorney who represents a capital defendant is entitled tp a maximum of $15,000

for miscellaneous expenses, such as the costs of preparing transcripts, compensating
expert witnesses, and copying documents. Upon approval by the trial court, the
attorney is entitled to payment by the Justice Administrative Commission of up to
$15,000 for miscellaneous expenses, except that, if the trial court finds that
extraordinary circumstances exist, the attorney is entitled to payment in excess of
$15,000."

337
 4. The undersigned seeks authorization to retain the services of Clyde Taylor, Esq. The

undersigned seeks a maximum compensation amount of $7,500.00 at a rate of $150

per hour. 1

5. Mr. Taylor is a respected trial lawyer who has testified as an expert witness in a

number of cases. He is a criminal defense practitioner who handles death penalty

cases at the trial level, appellate level and post-conviction level. This Court is

familiar with his credentials and his expertise. It is anticipated that Mr. Taylor can

and will testify as an expert regarding the American Bar Association standards in

capital cases for both the guilt phase as well as the penalty phase. It is also

anticipated that he is able to testify on matters that could have been or should have

been contemplated by the defense team for Mr. Hilton in their preparation and

presentation of a defense. Likewise, Mr. Taylor can and will testify regarding

omissions made by Mr. Hilton's defense team as well as. communications that should

have taken place with Mr. Hilton.

6. The record that exists in the instant case is massive. There are over one hundred

(100) banker's boxes as well as thousands of pages of files that are digitally stored. 2

Candidly, in seventeen (17) years of practice, the undersigned has never encountered

a more voluminous case. The case files have literally filled an entire executive office

and the electronic data could not be stored on the firm's hard drive due to its size. A

1 The hourly rate comports with the standard hourly rates afforded by the Justice Administration Commission for

"experts other than mental health.'' See. http://www.justiceadmin.org/court app counseVfonnsandrates.aspx,

CIRCUIT 2- DUE PROCESS COSTS ESTABLISHED RATES FOR SERVICES PROVIDED ON OR AFTER
JULY 1, 2010.
2 Mr. Hilton is labeled as a "serial killer" and his counsel from offenses in the United States District Court for the

Western District of North Carolina was kind enough to facilitate electronic file sharing that has served to save the
State of Florida thousands of dollars. The contents of those documents were related to the instant offense, offenses
in North Carolina and offenses in Georgia. They are highly relevant to the matters at issue.

338
 separate hard drive had to be purchased to facilitate storage. The penalty phase

transcripts alone are several hundred pages and "a day's worth of reading." This is

without regard to the myriad of documents that need to be contemplated such as: Mr.

Hilton's dependency proceeding records, Mr. Hilton's juvenile delinquency records,

Mr. Hilton's foster home records, Mr. Hilton's academic records, Mr. Hilton's arrest

records, Mr. Hilton's familial history and records, Mr. Hilton's military service

records and a plethora of other records and documentation. It has taken dozens, if not

hundreds of hours, for the undersigned to become familiar with the file.

7. The authorization for "costs" sought herein does not serve to exceed the standards

that are set forth in §27.711 (6), Florida Statutes (2015). However, when taken on

aggregate in conjunction with other experts and costs incurred, the "statutory cap"

serves to preclude the undersigned from providing effective assistance of counsel in

representation and the proper preparation and presentation of the defense. The

undersigned has incurred certain costs that have already been "billed against the

$15,000.00 allotment." The undersigned is seeking the appointment of 3 experts.

One is Mr. Taylor who is the subject of this motion. The other is a forensic

psychologist who is the subject of an additional motion. The final one is an

additional legal expert who is an expert in death penalty litigation and capable of

testifying to matters that Mr. Taylor is not going to testify to or is unable to

adequately address. The combined "costs" exceed the provided statutory structure.

8. The undersigned would assert, in the absence of this Court finding extraordinary

circumstances and granting relief, that §27.711, Florida Statutes (2015) is

unconstitutional due to its confiscatory nature. See Makemson v. Martin County, 491

339
 So.2d 1109 (Fla.l986). The statute places arbitrary maximums on the amount an

attorney may spend in defense of their client in a case where the ultimate penalty is at

stake. The statute does not account for differences or variances in cases. It does not

contemplate the reality that death penalty cases are not "cookie cutter." They are not

all the same with identical issues. This case is unique in its scope and complexity as

well as the issues that are now before the Court.

9. The instant case is. fraught with difficulties for any practitioner. The defense is

saddled with examining issues related to the guilt phase that contemplate homicides

in three different states as well as the evidence attendant thereto. Likewise, the

defense is burdened with a exploring a psychological history that was not explored

and presented during the initial trial. This history spans the entirety of the

Defendant's life and dates back sixty (60) plus years and involves a massive amount

of documents.

10. Mr. Taylor will be tasked with reviewing all of the documents mentioned above. It is

somewhat whimsical that the enactments of the legislature afford the opportunity for

experts to be compensated at a greater rate than counsel serving a defendant. 3 That

is for the legislature to solve and not for this tribunal.

11. The undersigned has not taken a carte blanche "punch the financial ticket" on

expenses. To the contrary, the undersigned has presented a measured and fiscally

3 Itis interesting that court appointed counsel can try a case (potentially on multiple occasions where there is no
compensation for a "do-over"/mistrial) and his/her fee is 50-75% less than the "expert" who wrote a five (5) page
letter about a defendant's mental health. This is notto besmirch the role of these persons, butto highlight this is in
the face of counsel spending dozens of hours meeting with a defendant, meeting with witnesses, making court
appearances, preparing for trial and actually trying a case (which impacts the frrm's ability to conduct day to day
business). Literally, an investigator or a psychologist gathers more compensation than a lawyer charged with
protecting a criminal defendant's constitutional rights and interests. Counsel cannot pretend to have the same
wisdom as the legislature. Be that as it may, it would seem that our governing bodies would compensate persons in
ratio and proportion to their actual role in a case.

340
 conservative and responsible approach to being able to appropriately defend Mr.

Hilton.

12. Counsel for the defense has not conferred with Assistant Attorney General Ms.

Emplit as it relates to the relief sought in this motion. Seemingly, the prosecutorial

arm of the State of Florida does not have an interest in the present Motion.

Nevertheless, Ms. Emplit apparently embraces the Defense's requested relief based

on her pleading filed on June 30, 2015 seeking to compel counsel to seek experts. 4

Counsel for the Defense has had some difficulty discerning who actually needs to be

consulted and contacted for the State of Florida. On the one hand, The Honorable

William N. Meggs has attended hearings from the Office of the State Attorney.

Likewise, Deputy Chief State Attorney Georgia Cappleman has attended hearings.

Assistant State Attorney Eddie Evan has also been participatory. On the other, the

State of Florida has also included Assistant Attorney General Ms. Emplit, Assistant

Deputy Attorney General Ms. Snurkowski and another attorney whose name eludes

the undersigned. It is unclear to counsel who is "in charge" for the State of Florida.

Be that as it may, defense counsel has remained in relatively consiant contact with

Assistant State Attorney Eddie Evans as well as Deputy State Attorney Georgia

Cappleman about the procedural and factual aspects of the case. There have been no

expressions ofobjection of the appointment of Mr. Taylor during discussions with

Mr. Evans or Ms.. Cappleman.

'Ms. Emplit's motion can potentially be construed as the State's expression of concern that counsel is rendering
ineffective assistance in this proceeding. In the alternative, it can also be construed as the State simply desiring to
be prepared for the hearing that is in September.

341
13. The undersigned has contacted Assistant General Counsel Bradley Bischoff from the

Justice Administrative Commission. Mr. Bischoff has no objection to the

authorization to incur costs insofar as the request is within the statutory parameters.

However, he objects, on behalf of the Justice Administrative Commission, to any

authorization outside those parameters.

WHEREFORE, the Defense requests this Court enter an order authorizing the defense

to incur costs for Clyde Taylor up to a maximum of $7,500.00 at a rate of $150.00 per hour.

Respectfully submitted,

R~ ~QUffiE MORRIS,
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue.
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com

342
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant General

Counsel Bradley Bischoff, Justice Administrative Commission, pleadings@justiceadmin.org,

Deputy Chief State Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State

Attorney's Office, Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL,

and Carine Emplit, carine.emplit@myfloridalegal.com, Capital Appeals Bureau, Office ·of the

Attorney General, PL-01 The Capitol, Tallahassee, Florida32399-1050 on this 29th day of July,

2015.

343
Filing# 30252594 E-Filed 07/2:nL015 04:20:26 PM
~

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF-697A

vs. . DIV.: FELONY

GARY MICHAEL ffiLTON, DEATH PENALTY

Defendant.
~----------------~1

UNOPPOSED MOTION TO CONTINUE EVIDENTIARY HEARING DUE TO

EXTRAORDINARY CIRCUMSTANCES

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, pursuant to Rule 3.851(f)(5)(C), Florida Rules of Criminal Procedure and moves this

. Court to continue the evidentiary hearing presently scheduled in this matter and in support

thereof states as follows:

1. The Defendant is indigent and the undersigned was appointed by the Court to

represent the Defendant in this capital collateral post-conviction proceeding.

2. An evi'aentiary hearing is presently set for September 8-9, 2015. The hearing has

been set for several months and all parties have been on adequate notice.

3. The past forty eight (48) hours have presented extraordinary circumstances for the

Defense in this case. The Defense anticipated calling Dr. Harry McClaren as an

expert witness as· well as a factual witness. Dr. McClaren was originally retained by

the Office of the Public Defender to serve as an expert witness when the instant case

was at the trial level. He served as a consultant and conducted a tremendous amount

344
I
of research that included interviews and evaluatioQS of the Defendant as well as

I
i
collateral investigation in order to form an expert opinion. Ultimately, Dr. McClaren

was not utilized as a witness during the penalty phase. It is now argued that this was

a critical error constituting ineffective assistance of counsel because the jury did not

have the benefit of a proper forensic psychological profile of the Defendant during

the penalty phase of the trial that encompassed his complete psycho-social profile as

well as dispelling arguments related to the Defendant's psychopathy.

4. Dr. McClaren was a crucial witness then and now in his ability to testify about the

Defendant's psycho-social makeup and integral in being able to speak to matters

related to the breakdown in the internal workings of the defense team as well as his

research that went without presentation. Likewise, Dr. McClaren was able to provide

testimony about the defense's ability to anticipatorily diffuse testimony from Dr.

Prichard during the trial. He was also able to render an expert opinion about Dr.

Prichard's own "overreaching opinion" that was presented at trial based on

inadequate and incomplete data.

5. Regrettably, Dr. McClaren, who was a personal and professional acquaintance,

passed away within the last forty eight (48) hours. This has left the Defense in a

somewhat dire situation due to the loss of a crucial witness as well as a hearing date

that is in the near future. In that regard, the undersigned immediately initiated

telephone communications yesterday with respected professionals in the forensic

psychology field. In each instance, none of them were/are able to be available and/or

prepared for the presently scheduled hearing on September 8-9, 2015.

345
 6. The Defense was never been in a rush to seek the appointment of Dr. McClaren as an

expert witness in the instant proceeding. This was primarily due to the fact that Dr.

McClaren was originally involved in the case and had a great deal of familiarity with

the case that did not necessitate "authorization to incur costs" at an earlier point. The

undersigned had prepared a motion seeking the "authorization to incur costs" which

was to be filed this week.

7. It is critical for this Court to understand that the undersigned has/had met with Dr.

McClaren on numerous occasions to develop strategy and to review matters requiring

presentation in this proceeding. In fact, Dr. McClaren served to identify issues that

counsel would have been unable to identify without his consultation. Pivotally, this is

not a circumstance of the Defense "sitting on their laurels" and using a tragedy as

spring board for a continuance.

8. The Defense is now placed in the very difficult situation of: A) the loss of a very

.critical witness, B) the necessity to find a witness who can attempt to adequately

address those issues delegated and assigned the witness who is now deceased, C) the

time associated with allowing an expert to gain adequate familiarity within which to

render an opinion and D) the evidentiary "gymnastics" 1 associated with the testimony

of that witness.

9. Rule 3.851(f)(5)(C), Florida Rules of Criminal Procedure provides that "The trial

court also may for good cause extend the time for holding au evidentiary hearing up

to 90 days." The rule of procedure is silent as to whether this means it cau happen on

1 The undersigned has begun to contemplate the evidentiary ramifications of the loss of Dr. McClaren as a witness,
but is certain that the full impact has not yet been appreciated. An example wmild be the new witness considering
Dr. McClaren's notes and their independent admissibility as well as the expert's reliance on those notes in
formulating an opinion.

346
 one occasion, on one occasion for each party, on repeated occasions for each party,

etc ... The undersigned is mindful of the "Timely Justice Act of 2013" which, in

conjunction with the well-reasoned advice of the Capital Post-Conviction

Subcommittee of the Criminal Court Steering Committee, has sought to curtail

unnecessary delays in the judicial process in post-conviction matters. However, the

undersigned is unclear on the latitude or extent of the rule.

10. The foregoing is mentioned because an extension of time for ninety (90) days does

not seem to adequately contemplate the devastating circumstance the Defense has

suffered in this instance. Be that as it may, the Defense requests the ninety (90) day

extension as provided in the rule. Should there be a necessity for a further extension

due to the complexity of the case and the challenges associated therewith, the

undersigned will present the matter in writing and call the matter on for hearing.

11. The undersigned has conferred with Deputy State Attorney Georgia Cappleman .and

she does not oppose the relief sought in light of the issues outlined above.

12. While the rule of procedure does not require a verification of counsel, the

undersigned certifies that this Motion is filed in good faith and not solely for the

purposes of delay as required by Rule 3.190(£)(4), Florida Rules of Criminal

Procedure.

13. The undersigned would respectfully request that this matter be called on for hearing

to determine if relief is to be granted. In the event relief is granted, it will afford the

parties the opportunity discuss and confirm dates certain. The time window that is

being requested bumps the parties up to the fall holidays.

347
 Respectfully submitted,

OBERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park A venue.
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex @ramlawyer.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant General

Counsel Bradley Bischoff, Justice Administrative Commission, pleadings@justiceadmin.org,

Deputy Chief State Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State

Attorney's Office, Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL,

and Carine Emplit, carine.emplit@myfloridalegal.com, Capital Appeals Bureau, Office of the

Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 29th day of July,

2015.

348
Filing# 30253201 E-Filed 07/29/2015 04:24:48 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

v.

GARY MICHAEL HILTON, JUDGE: HANKINSON

Defendant.

JUSTICE ADMINISTRATIVE COMMISSION'S RESPONSE TO

MOTION FOR LEGAL EXPERT AND/OR MOTION TO DECLARE §27.711, FLORIDA
STATUTES AS CONFISCATORY AND MOTION TO INCUR COSTS FOR EXPERT
WITNESS FOR FORENSIC PSYCHOLOGIST AND/OR MOTION TO DECLARE
§27.711, FLORIDA STATUTES AS CONFISCATORY

COMES NOW, the Justice Administrative Commission ("JAC"), by and through the

undersigned attorney and files this response to the above-cited motions as follows:

1. Robert A. Morris (Counsel) is seeking an order authorizing $7,500.00 at the established

rate of$150 per hour for attorney Clyde Taylor, Jr. as a legal expert. Counsel is also seeking an

order authorizing $15,000.00 at the established rate of$150 per hour for mental health expert Dr.

Terrance Leland.

2. As to the retention of Attorney Taylor as an expert, JAC objects only insofar ass.

27.711(6), F.S., imposes a cap of$15,000.00 for miscellaneous expenses in a capital collateral

case, which includes experts. As of this date, only $439.94 has been paid under that subsection,

however should the Court additionally authorize $15,000.00 for Dr. Leland, the cap may be

exceeded. JAC encourages seeking preauthorization for such expenses as it facilitates payments

to vendors without need of further court action.

3. The Florida Supreme Court has held that in order to authorize expenses over the statutory

cap, the trial court must determine that extraordinary and unusual circumstances exist. See

Page 1
349
McClain v. Atwater, 110 So.3d 892 (Fla. 2013). Inasmuch as the Florida Supreme Court has

established a mechanism for exceeding the statutory cap, there is no need to address the issue of

whether the statute is constitutionally confiscatory.

4. As to the retention of Dr. Leland, JAC objects only insofar ass. 27.711(6), F.S., imposes

a cap of$15,000.00 for miscellaneous expenses in a capital collateral case. As of this date, only

$439.94 has been paid under that subsection, however should the Court authorize $15,000.00 for

Dr. Leland, the cap may be exceeded. The Court will need to determine whether extraordinary

and unusual circumstances exist.

5. If any providers require direct payment, the JAC's procedures require the vendor to

execute the appropriate contract and follow JAC's billing and audit procedures to obtain

payment.

6. Pursuant to the JAC Agreement, any direct payment to a due process vendor is contingent

upon Counsel providing any and all necessary documentation in support of a billing to JAC in an

expeditious fashion. Counsel shall promptly review any billing for direct payment to a due

process vendor for accuracy and completeness and must certify that the work was satisfactorily

performed. In the event JAC issues a deficiency notice regarding any billing, Counsel or the due

process provider shall promptly resolve the deficiency so that JAC can process the billing for

payment. The order should reflect that Counsel must comply with all JAC policies and

procedures in the submission of billings to JAC for direct payment to a due process vendor.

7. JAC does not request to participate in any hearing set on these motions. Should the Court

desire additional input JAC may be reached toll-free at (866) 355-7902.

WHEREFORE, the JAC requests this Court, should it grant the Defendant's motions,

also include in its order the specific due process services authorized, as well as hourly or per unit

Page 2

350
rates and maximum fees approved, and that the provider be paid in accordance with rates, terms

and conditions set forth by Florida Statutes, and the JAC contract, policies and procedures.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by

email and/or U.S. Mail on this 29th day of July, 2015 to:

Honorable James C. Hankinson

Sent via email

Robert A. Morris, Esq.

Sent via email

Respectfully submitted,

ANA CRISTINA MARTINEZ

GENERAL COUNSEL

Is/ Bradley R. Bischoff

BRADLEY R. BISCHOFF
Assistant General Counsel
Justice Administrative Commission
P.O. Box 1654
Tallahassee, FL 32302
Tel.:850-488-2415
pleadings@justiceadmin.org
Florida Bar No.: 0714224

Page 3

351
Filing# 30284361 E-Filed 07/2\v/2015 12:37:02 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

VS. CASE NO. 2008-CF-697A

DIVISION: FELONY

GARY MICHAEL HILTON, DEATH PENALTY

Defendant.

MOTION TO QUASH INVESTIGATIVE SUBPOENA(S)

COMES NOW, the Defendant, GARY MICHAEL HILTON, by and through the

undersigned counsel, and moves this Honorable Court for entry of an order quashing any and all

investigative subpoena(s) issued by the State Attorney to members of the Defendant's trial

defense team for interrogation on or about August 10, 2015, and in support thereof, states the

following:

I. INTRODUCTION AND BACKGROUND

1. In the instant case, Hilton seeks post-conviction relief, pursuant to Rule 3.851, Florida

Rules of Criminal Procedure, from his conviction for First Degree Murder.

2. Hilton filed his Motion for Post"Conviction Relief on or about November 26, 2014.

3. An Amended Motion for Post-Conviction Relief was filed on July 24, 2015.

4. This matter is currently set for an evidentiary hearing on September 8 & 9, 2015.

5. Hilton and the State each filed witness lists on April 23, 2015 and July 14, 2015,

respectively, naming as witnesses certain members of Hilton's trial defense team, to wit:

Nancy Daniels (elected Public Defender for 2nd Judicial Circuit), Andy Thomas

(Assistant Public Defender), Paula Saunders (Assistant Public Defender), Rob Friedman

352
 (former Assistant Public Defender), Merribeth Bohanan (former Assistant Public

Defender), Betty Fuentes (former Assistant Public Defender), Steven Been (Assistant

Public Defender), Tracy Record (former Assistant Public Defender), Ines Suber

(Assistant Public Defender), Chris EUrich (investigator for Public Defender), Monica

Jordan (investigator).

6. On or about March 26, 2015, Assistant State Attorney Georgia Cappleman issued

subpoenas, pursuant to the State's investigative subpoena power, to certain members of .

Hilton's trial defense team seeking to compel their presence and responses to the State's

interrogation on August 10, 2015 at a "MEETING RE: 3.850."1 EXHIBIT A

7. The subpoena(s) is/are not issued for purposes of securing witness attendance at a

hearing on this matter.

8. The State has not filed a motion seeking prehearing discovery in this matter, nor has this

Court entered any order permitting prehearing discovery.

9. The subpoena(s) is/are not issued for purposes of deposing witnesses in this matter,

pursuant to Rule3 .220, Florida Rules of Criminal Procedure.

10. The State did not provide notice to the undersigned for any such subpoena(s) for the

interrogation of defense witnesses.

11. Hilton is not being investigated by the State to determine whether criminal activity has

occurred or is occurring.

1 Atthe time of this motion, the undersigned is only aware of the subpoena issued to Public
Defender Investigator Chris EUrich. It is believed that additional members of Hilton's trial
defense team have received identical subpoenas; however, the State has faj!ed to provide the
undersigned with notice of any such subpoena(s) being issued.
2

353
 II, THE SUBPOENA(S) SHOULD BE QUASHED

A, The Subpoenas were issued without authority of law

Generally, the State Attorney is empowered to issue subpoenas under the court's

authority where: 1) the subpoena is issued pursuant to Rule 3.220, Florida Rules of Criminal

Procedure, in order to depose a witness in a criminal prosecution; or 2) the subpoena is issued

pursuant to the State Attorney's investigative subpoena power codified in § 27.04, Florida

Statutes. Neither circumstance exists in the case at bar. Instead, the State seeks to compel

disclosure of non-discoverable, privileged information with no legal authority to do so. As

such, the subpoena(s) should be quashed.

1) The subpoenas were not issued pursuant to authority under Rule 3.220

Neither the movant nor respondent are entitled to prehearing discovery in proceedings

for post-conviction relief. "In most cases any grounds for post-conviction relief will appear on

the. face of the record. On a motion which sets forth good reason, however, the court may allow

limited discovery in to matters which are relevant and material, and where the discovery is

permitted the court may place limitations on the sources and scope. State v. Lewis, 656 So.2d

1248 at 1250 (Fla. 1994) (citing Davis v. State, 624 So.2d 282 (Fla. 3d DCA 1993). While

limited discovery may be available to parties in post-conviction relief proceedings, it is within

the trial judge's inherent authority, rather than any express authority found in the Rules of

Criminal Procedure, to permit such discovery. !d. at 1249.

In the instant case, the State has not moved this Court for authority to conduct

prehearing discovery, nor has this Court entered any order authorizing the State to subpoena

354
 defense witnesses for deposition, interrogation, or for any reason other than securing the

witness' appearance at hearing on this matter.

2) The subpoenas were not issued pursuant to Section 27.04

Section 27.04, Florida Statutes, in relevant part, authorizes the state to use" ... process of

his or her court to summon witnesses from throughout the state to appear before the state

attorney at such convenient places in the state attorney's judicial circuit and at such convenient

· times as may be designated in the summons, to testify before him or her as to any violation

of the law upon which they may be interrogated." (emphasis added).

Section 27.04, Florida Statutes, allows the state attorney to issue subpoenas as part of an

ongoing investigation. See Imparato v. Spicola, 238 So.2d 503 (Fla. 2d DCA 1970).

·Essentially, the state attorney is a "one-man grand jury", and is the investigatory and accusatory

arm of our judicial system, subject only to limitations imposed by the Constitution, common

law, and statutes for protection of individual rights and to safeguard against possible abuses of

far-reaching powers so confided. Id. at 506. The purpose of an investigative subpoena is to

allow the State to obtain the information necessary to determine whether criminal activity has

occurred or is occurring. State v. Investigation, 802 So.2d 1141, 1144 (Fla. 2d DCA 2001).

The State cannot be required to prove that a crime has occurred before it can issue an

investigative subpoena because the entire purpose of the investigative subpoena is to determine

whether a crime has occurred. !d. See also Doe v. State, 634 So.2d 613 (Fla. 1994) (State has

power to issue investigative subpoenas pursuant to Section 27.04, F.S., because the State has

strong interest in gathering information relevant to an initial inquiry into suspected criminal

activity). Where the state attorney issues an investigative subpoena to a witness pursuant to

355
 §27.04, F.S., the subject matter of an interrogation must be confined to violations of the

criminal law. Morgan v. State, 309 So.2d 552 (Fla. 2d DCA 1975) (citing Barnes v. State, 58

I
I
j
So.2d 157 (Fla. 1952). The State Attorney does not have authority to subpoena and interrogate

a witness unless investigating the violation of a criminal law. ld. at 553.

In the instant case, the State is not seeking information to determine whether a crime has

occurred or is occurring. That ship set sail long ago as Hilton has already been investigated,

indicted, tried, and convicted. Instead, the State seeks to use its subpoena power to compel the

presence and responses of witnesses absent any lawful authority to do so.

B. The information is protected by privilege and rio waiver has been made

Equally troubling is the nature of the information sought by the State via the investigative

subpoena(s) at issue. The State has subpoenaed members of Hilton's legal defense team and

invariably seeks information protected by Hilton's attorney-client privilege and the work product

doctrine. This information is not subject to disclosure unless or until there is a waiver of such

privilege. No waiver has been made.

The undersigned recognizes that this Court, at some point, is likely to find that privilege

has been waived by virtue of Mr. Hilton's assertions in his post-conviction pleadings as well as

through any testimony he provides alleging ineffective assistance of counsel. However, it seems

an untenable position for the Court to make that finding at this point and try to "referee" a

question and answer session conducted outside the Court's presence.

The undersigned does not possess the same insight as this Court as to how the judiciary

routinely handles matters of this nature. It would seem that the Court needs to make a finding of

waiver or that Mr. Hilton needs to provide an affirmative waiver. However, questions or
5

356
 discussions posed to former counsel should likely be conducted in an official proceeding (e.g.

deposition) where current counsel can be present and interpose objections if necessary. There

are a number of lines of inquiry that Mr. Hilton's post-conviction pleadings may not waive or

serve to waive. By way of example, Mr. Hilton's trial team may have privileged information

related to the homicides in Georgia and North Carolina. However, a waiver of privilege may not

extend to those areas of inquiry and they could serve to adversely impact Mr. Hilton and/or other

proceedings.

1) The State seeks information protected by the attorney-client privilege

The State is not entitled to inquire about any cormnunications between Hilton and his

lawyers and investigators as those cormnunications were made in connection with the rendition

of legal services and, accordingly, the attorney-client privilege protects disclosure of such

confidential cormnunications. SeeR. Reg. Fla. Bar 3-7.1; § 90.502 Florida Statutes. Hilton has

not waived this privilege and the Court has not made a finding that the privilege has been

waived.

2) The State seeks information protected by the work-product doctrine

Furthermore, the information sought by the State is protected workcproduct material.

The work-product privilege is designed to protect the work and mental impressions of counsel

under the circumstances and is controlled by Rule 3.220(g}(l), Florida Rules of Criminal

Procedure. This privilege protects the opinions, theories, or conclusions of the prosecuting or

defense attorney and/or members of their legal staffs. Hilton has not waived this privilege and

the Court has not made a finding that the privilege has been waived.

357
 3) Due Process requires evidentiary hearing on waiver issue

Although the privileges and protections discussed above may be asserted by the

members of Hilton's trial defense team, the privilege is possessed by Hilton. See§ 90.502(2),

Florida Statutes. Whether the privilege exists and, if so, whether is has been waived are

questions of fact that can be determined only after an evidentiary hearing. Rogers v. State, 742

So.2d 827 (Fla. 2d DCA 1999). There would be serious due process issues created by a

procedure through which the client lost the privilege without notice or an opportunity to be

heard. Jd.

The State seeks to compel, by investigative subpoena aud without notice to Hilton, the

disclosure of confidential information protected by well-established privilege. Due process

requires Hilton be provided notice and an opportunity to be heard before any finding by the

Court that he has waived any such privilege(s). To date, Hilton has not waived any privilege(s),

the State has not provided notice to Hilton of its intent to question his legal team regarding

privileged information, and no evidentiary hearing has been held to determine whether any such

privilege has been waived.

WHEREFORE, the Defendant moves this Honorable Court to enter an order quashing

any and all investigative subpoenas issued by the State to members of Defendant's trial defense

team in this case.

358
 RESPECTFULLY~.~~
D,

B~ (.fJJ~
ROBERT A. MORRIS, ESQUIRE
.

The Law Offices of Robert A. Morris, LLC

Florida Bar No.: 0144680
911 East Park Avenue
Tallahassee, Florida 32301
(850) 792-1111 Facsimile (850) 792-1113
ATTORNEY FOR DEFENDANT
COURT APPOINTED
alex @ramlawyer.com
efiling@rarnlawyer.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Carine Emplit,

· carine.emplit @myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General, PL-

01 The Capitol, Tallahassee, Florida 32399-1050 on this 30th day of July, 2015.

359
 IN THE CIRCUIT COUI~.T OF THE
SI3CQ.Ntl)UDIC!AL CIRClJ!T, lN
AND. FOR !.EON COUNTY, FLORIDA.

STATE OF FLORIDA CASE NO. 08CF00697

SPN 197149
vs.

Gary M Iiiltoii,
Defundant(s)
--~-------...!/
TO: ALL AND SINGULAR Tl-IE SHERIFFS OF THE STATE OF FLORIDA

. Yotl are commanded to summon the witnesses listed below:

RE: Le:on Cty. Sherifrs Office #

CHRIS EL.LlUCB:, PT.i.Utlc DEFEJIIDF.)R!S OF.FICE

YOU ARE COMMANDED to appear before· the Honornbk Georgia Capp!eman, Assistant State Attorney of the
Second JudiCial Circuit, by nrrivillg ptomptly O.li the fourth floor SUITE 475 on the 4tlt Floor of the LEON
COUNTY COURTHOUSE, 3Ql SOUTH MONROE STREET, TALLAHASSEE, FLORIDA, as follows:

TIME you shall appear: 9:00AM

DAY OF THE WEEK to appem·: MONlJAY
DATE to appear: AUGUST 10, 2015

and you shall be called to testify in this .case. If you fail to appeal1, contempt of court. You are
subpoei1aed to appear by the foUowing attorney, and unless "-A·.--hl,:. s14br:¢e11q by this attorney orthe Court,
you shall respondto this subpoena as directed,

DATED on Match26, 2015

Assistat1t State Attol'ney for the CoUJt

State Attorney's Office
301-475 S.outl1 Monroe Street
Tallahassee, FL 32399~2550

MEETING RE: :'1.850 (Type of Cot1rt Proceeding)

In a~gl'<l~mce wi.th the Alllcrioaus With Disn[)_llitl.es J\ol, i.fyqu nec~lt~ spcoilll. n.;comnwdntion to nttunclyou should contnct our.of1i'ce lmntcdinl.cly

"'""~'~'"~~mon~••••-;•~k~;+~
360
 THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

CASE NO. 2008CF697

SPN 197149
STATE OF FLORIDA

vs.

GARY MICHAEL HILTON,

Defendant.
----------------~/

'2
w
en
COMES NOW the State of Florida and files this response to the defendant's motion to

quash investigative subpoena(s) and would state as follows:

I. The State will release the witnesses from the subpoena for interviews. See Fanqui v.

State, 965 So.2d 22, 34-35 (Fla. 2007), where in dicta, the Court indicated it agreed that section

27.04, Florida Statutes, "should not be used as a discovery tool to compel defense counsel to

testifY ex parte in postconviction proceedings .... "

2. The wavier of the attomey client privilege was made by filing the motion. In

addressing a similar claim the Florida Supreme Court set forth when the attorney client privilege

is waived and what post conviction counsel should do if he has an objection to specific areas that

he claims the privilege has not been waived:

A defendant may not invoke the attorney-client privilege to preclude trial counsel
from testifYing about their conversations when those discussions relate to the
defendant's claims of ineffective assistance. See Turner v. State. 530 So.2d 45, 46
(Fla.I987); see also§ 90.502(4)(c), Fla. Stat. (1999) ("There is no attorney-client
privilege ... when [a] communication is relevant to an issue of breach of duty by
the lawyer to the client ... arising from the lawyer-client relationship."). Under

In Computer
361
LJ.w
'~-
 such circumstances, the attorney-client privilege is also waived as to trial
counsel's files. See Reedv. State, 640 So.2d 1094, 1097 IF!a.l994); accord
LeCrov v. State, 641 So.2d 853 1Fia.l994). Further, the waiver of the
attorney-client privilege occurs "when [the defendant] .file[:~] a motion for
postconviction relief claiming ineffective assistance of counsel." Reed, 640 So.2d
at I 097 (emphasis added).
16 Thus, we agree with the trial court's ruling that Arbelaez waived his
attorney-client privilege as to trial counsel's files when he filed his motion
claiming that counsel rendered ineffective assistance by failing to adequately
investigate and prepare for trial.1 As explained in Reed, the State "will ordinarily
be entitled to examine the trial attorney's entire file." 640 So.2d at I 097. However,
Arbelaez "may move to exclude from discovery any portion of the file which
contains matters unrelated to the crimes for which [he] was convicted." !d. If such
a motion is filed, then "the court shall conduct an in-camera inspection of that
portion of the file in question to determine whether it should be disclosed." !d.

Arbalez v. State, 775 So.2d 909,917 (Fla. 2000).

WHEREFORE based upon the foregoing, the State would request that the Court deny the

defendant's motion to quash.

Leon Count ouse

30 I S. Monroe Street
Tallahassee, Florida 32301
(850) 488-670 I
FLBarNo:

I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to Counsel for the Defendant, Robert A. Morris, The Law f s of bert A. Morris,
LLC, 911 East Park Avenue, Tallahassee, Florida 32301, alex a d
efiling@ramlawyer.com this --i--
day of August, 2015. .

362
Filing# 30603059 E-Filed 08/G, ,2015 II :34:29 AM
C'\

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL ClRCUfl', JN
FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

VS.
CASE NO.: 2008 CF 697A
GARY MICHAEL HILTON,

Defendant.

ORDER DENYING DEFENDANT'S MOTION TO Q!JASH

INVESTIGATIVE SlJHPOENA(S)

THIS matter coming on to be heard upon Defendant's Motion to Quash Investigative

Subpoena(s), filed on July 30, 2015, and the Court having considered the State's response and

being otherwise fully advised in the premises, it is hereby:

ORDERED AND ADJUDGED that the motion be denied as moot. The State has agreed

to voluntarily withdraw the subpoena(s) in question. Since a voluntary interview may be

considered, the Court does feel compelled to make comment on the attorney-client privilege

claim. As to the prior "defense team", as the Defendant puts it, the attorney-client privilege was

waived by the filing of the motion before the cotut attacking the "defense teanl's" competence.

Rule 4-1.6(c), Rules of Professional Conduct.

.-tVL.
DONE and ORDERED this]_ day of August, 2015, in Tallahassee, Leon County,

~;·-. ~£~~
Florida.

AMES C. HANKINSON
( ),ircuit Judge
See Service List

363
 SERVICE LIST

Carine L. Emplit
,Garine.en.lpliti?ilrnvfloridal~g'iLrom

Georgia Cappleman
$A9.UeonE~Jony@l<:\mg()Lllllyfl.gov

Robert A. Morris, Esquire

alex(alraqJ)lll:YY~s.com
efilinl!tii)ramlawyer.cQI!I

364
Filing# 30701758 E-Filed 08/11!2015 09:23:05 AM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO. 2008-CF-697A

DIVISION: FELONY

GARY M. HILTON,
Defendant.

--------------------~'
NOTICE OF FILING

COMES NOW the Defendant, by and through the undersigned attorney and provides this

Notice of Filing for the following:

I. Justice Administrative Commission's Response to Motion for· Legal Expert

And/Or Motion to Declare §27. 711, Florida Statutes as Confiscatory and Motion

to Incur Costs for Expert Witness for Forensic Psychologist And/Or Motion to

Declare §27.711, Florida Statutes as Confiscatory.

RESPECTFULLY SUBMITTED,

!Is 'RobertA. ~orvW..._ _ _ __

ROBERT A. MORRIS, ESQUIRE
Florida Bar lD No.: 0144680
The Law Offices of Robert A. Morris, LLC
911 East Park Avenue
Tallahassee, Florida 32301
(850) 792-1111 Facsimile (850) 792-1113
ATTORNEY FOR DEFENDANT
COURT APPOINTED
alex@rarulawver.com
efiling@ramlawyer.com

365
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was delivered by ELECTRONIC

MAIL, SA02 Leon@leoncountyfl.gov; capplemang@leoncountyfl.gov Office of the State

Attorney, 301 S. Monroe St., Leon County Courthouse, Tallahassee, FL 32301;

pleadings@justiceadmin.gov Bradley R. Bischoff, Assistant General Counsel and Ana Cristina

Martinez, General Counsel, Justice Administrative Commission, PO Box 1654, Tallahassee, FL

3230 I ;capaoo@myfloridalegal.comcarine. emplit@myfloridalegal.comevanse@leoncountyfl. gov

; carolvn.snurkowski@myfloridalegal.com on this 11 111 day of August, 2015.

/Is Rcilnwt A. Morvw'-------

ROBERT A. MORRIS, ESQUIRE

366
Filing# 30253201 E-Filed 07/29/2015 04:24:48 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

v.
GARY MICHAEL HILTON, JUDGE: HANKINSON
Defendant.

JUSTICE ADMINISTRATIVE COMMISSION'S RESPONSE TO

MOTION FOR LEGAL EXPERT AND/OR MOTION TO DECLARE §27.711, FLORIDA
STATUTES AS CONFISCATORY AND MOTION TO INCUR COSTS FOR EXPERT
WITNESS FOR FORENSIC PSYCHOLOGIST AND/OR MOTION TO DECLARE
§27.711. FLORIDA STATUTES AS CONFISCATORY

COMES NOW, the Justice Administrative Commission ("JAC"), by and through the

undersigned attorney and files this response to the above-cited motions as follows: .

I. Robert A. Morris (Counsel) is seeking an order authorizing $7,500.00 at the established

rate of$150 per hour for attorney Clyde Taylor, Jr. as a legal expert. Counsel is also seeking an

order authorizing $15,000.00 at the established rate of$! SO per hour for mental health expert Dr.

Terrance Leland.

2. As to the retention of Attorney Taylor as an expert, JAC objects only insofar as s.

27.711(6), F.S., imposes a cap of$15,000.00 for miscellaneous expenses in a capital collateral

case, which includes experts. As ofthis date, only $439.94 has been paid under that subsection,

however should the Court additionally authorize $15,000.00 for Dr. Leland, the cap may be

exceeded. JAC encourages seeking preauthorization for such expenses as it facilitates payments

to vendors without need of further court action.

3. The Florida Supreme Court has held that in order to authorize expenses over the statutory

cap, the trial court must determine that extraordinary and unusual circumstances exist. See

Page 1

367
 McClain v. Atwater, 110 So .3d 892 (Fla. 2013). Inasmuch as the Florida Supreme Court has

established a mechanism for exceeding the statutory cap, there is no need to address the issue of

whether the statute is constitutionally confiscatory.

4. As to the retention of Dr. Leland, JAC objects only insofar ass. 27.711(6), F.S., imposes

a cap of$15,000.00 for miscellaneous expenses in a capital collateral case. As of this date, only

$439.94 has been paid under that subsection, however should the Court authorize $15,000.00 for

Dr. Leland, the cap may be exceeded. The Court will need to determine whether extraordinary

and unusual circumstances exist.

5. If any providers require direct payment, the JAC's procedures require the vendor to

execute the appropriate contract and follow JAC's billing and audit procedures to obtain

payment.

6. Pursuant to the JAC Agreement, any direct payment to a due process vendor is contingent

upon Counsel providing any and all necessary documentation in support of a billing to JAC in an

expeditious fashion. Counsel shall promptly review any billing for direct payment to a due

process vendor for accuracy and completeness and must certify that the work was satisfactorily

performed. In the event JAC issues a deficiency notice regarding any billing, Counsel or the due

process provider shall promptly resolve the deficiency so that JAC can process the billing for

payment. The order should reflect that Counsel must comply with all JAC policies and

procedures in the submission of billings to JAC for direct payment to a due process vendor.

7. JAC does not request to participate in any hearing set on these motions. Should the Court

desire additional input JAC may be reached toll-free at (866) 355-7902.

WHEREFORE, the JAC requests this Court, should it grant the Defendant's motions,

also include in its order the specific due process services authorized, as well as hourly or per unit

Page2

368
rates and maximum fees approved, and that the provider be paid in accordance with rates, terms

and conditions set forth by Florida Statutes, and the JAC contract, policies and procedures.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by

email and/or U.S. Mail on this 29th day of July, 20 I 5 to:

Honorable James C. Hankinson

Sent via email

Robert A. Morris, Esq.

Sent via email

Respectfully submitted,

ANA CRISTINA MARTINEZ

GENERAL COUNSEL

lsi Bradley R. Bischoff

BRADLEY R. BISCHOFF
Assistant General Counsel
Justice Administrative Commission
P.O. Box 1654
Tallahassee, FL 32302
Tel.:850-488-2415
pleadings@justicead.min.org
Florida Bar No.: 0714224

Page3

369
Filing# 30898876 E-Filed 08!1 ...,1015 03:39:06 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.
GARY MICHAEL HILTON,

Defendant.
------------------~/
ANSWER TO AMENDED MOTION FOR POST-CONVICTION RELIEF

On November 25,2014, Hilton, represented by Robert A. Morris, filed a Motion for Post-

Conviction Relief. On January 26, 2015, the State filed its Answer to the Motion for Post-

Conviction Relief. Thereafter, on July 24,2015, Hilton filed a Motion for Leave to Amend Initial

Postconviction Motion and Incorporated Memorandum of Law, attaching his Amended Motion

for Post-Conviction Relief. The Court granted the Motion for Leave to Amend Initial

Postconviction Motion on July 28, 2015. This is the State's Answer to the Amended Motion for

Post-Conviction Relief. This Court should summarily deny all of the claims.

370
 Facts and Procedural History of the Case

Hilton was convicted of first-degree murder for which he was sentenced to death. The

facts of this case as recited by the Florida Supreme Court in the direct appeal opinion are:

On February 28, 2008, a Leon County grand jury indicted Gary Michael Hilton
for the first-degree murder of Cheryl Dunlap between December I and December
15, 2007, kidnapping, grand theft of a motor vehicle, and grand theft of currency.
Hilton pleaded not guilty on March 14, 2008. Hilton proceeded to a jury trial
commencing on February 2, 2011.

Cheryl Dunlap, 46, was last seen alive on December I, 2007. That morning,
Dunlap called a friend, Kiana Hill, and made arrangements to have dinner with
her that evening. That afternoon, Dunlap went to Leon Sinks to read, where she
was seen by Michael and Vikki Shirley at approximately I :30 p.m. The Shirleys
described that Dunlap was wearing jeans and a sweater and carrying a hardback
book. Dunlap did not arrive for dinner that evening and was missed at church the
following morning by Tanya Land. Land went to Dunlap's residence and found
her dog, but noticed that her car was missing so she called the police. Steven
Ganey of the Wakulla County Sheriffs Office took the missing person report on
December 3, 2007.

Dunlap's car, a white Toyota Camry, was found on December 3, 2007, on the side
of Crawfordville Highway parked near the woods. The car had deliberate tire
punctures in the sidewall that was later identified as a bayonet piercing. On
December I, the car had received a disabled vehicle ticket from Florida Highway
Patrol Trooper Brian Speigner. Ganey testified that it appeared that someone had
driven into the woods with all four tires intact and punctured the tire after the car
had been parked. Dunlap's purse was recovered in her car, but no money was
found.

Dunlap's Ameris Bank account records revealed that Dunlap cashed a check with
a drive-through teller at II: 17 a.m. on December I. The records further revealed
that three cash withdrawals were made at the ATM at Hancock Bank on West
Tennessee Street on December 2, 3, and 4, 2007, totaling $700. In addition, two
attempted withdrawals were declined because they exceeded the daily limit. The
video from the security camera at the bank showed that the person making the
transactions was wearing a blue and white patterned, long-sleeved shirt, glasses, a
hat, and a make-shift mask made from tape.

Dunlap's body was discovered on December 15 by Ronnie Rentz while he was

hunting in the Apalachicola National Forest. Dunlap's body was near a forest
road and had been covered with some brush and limbs. Additionally, her head
and hands had been removed. Dunlap's body was identified using a sample of

371
thigh muscle. Dr. Anthony Clarke, an associate medical examiner, performed the
autopsy. Dr. Clarke opined that Dunlap's head and hands had been removed by
an instrument with a sharp blade and that the dismemberment occurred
postmortem. The cause of death was not able to be determined, but Dr. Clarke
opined that it was likely to have been a violent homicide. Additionally, Dr.
Clarke noted that there was a significant pre-mortem bruise located on Dunlap's
middle to lower back and that the bruise was not consistent with a normal fall
injury. Dr. Clarke estimated that Dunlap's body could have been in the woods for
seven to fifteen days. Dr. Clarke testified that his best estimate was that Dunlap
died between December 5 and December 8, 2007.

On January 9, 2008, investigators found what they believed to be the remains of

Dunlap's head and hands in a fire pit at Joe Thomas campsite-approximately
seven miles from where her body had been found. The bone fragments were
charred. Because of the burn damage, no DNA was recoverable from the
fragments. Dr. Anthony Falsetti, a forensic anthropologist, opined that there were
two hands represented, that the bones were from an adult, and that the bones were
from a person with small hands.

Several witnesses testified that they saw or encountered Gary Michael Hilton
during the time period surrounding Dunlap's disappearance. In late November
2007, George Ferguson encountered Hilton on LL Wallace Road. Hilton asked
Ferguson for a jump start because his van, a white Chevrolet Astro, would not
crank. Ferguson testified that it did not appear to him that Hilton actually needed
the assistance. Ethan Davis provided similar testimony, that sometime in late
November 2007, Hilton stopped him and asked for help starting his vehicle. Davis
declined. Shawn Matthews also encountered Hilton in late November near his LL
Wallace Road camp. Hilton appeared to be familiar with the area and told
Matthews about a nearby sinkhole. On December I, 2007, Celeste Hutchins saw
Hilton on Crawfordville Highway, not far from Leon Sinks. Hutchins testified
that Hilton was rummaging through a white Camry on the side of the road. On
December I 0, 2007, Loretta Mayfield spoke to Hilton at a convenience store on
Crawfordville Highway. Mayfield testified that Hilton was wearing a blue and
white patterned shirt. Hilton was also wearing something on his left side that
looked like a large knife holder. Mayfield testified that the shirt she saw Hilton
wearing looked like the one in the ATM security video. On December II, 2007,
Stephen Prosser saw Hilton in the Apalachicola National Forest. On December
12, 2007, Michael Travis saw Hilton in the forest near the Bloxham cutoff and
then saw him again on December 14. On December 18, 2007, Teresa Johnson
saw Hilton in Bristol, Florida, where Hilton told her that she looked like Dunlap
and that it was "too bad" about that girl getting murdered.

Sometime between December 18, 2007, and January I, 2008, Hilton made his
way to Georgia where he kidnapped and murdered Meredith Emerson. Hilton
took Emerson from Blood Mountain and held her for four days before murdering
her. He cooperated with law enforcement in exchange for a life sentence. Hilton

372
was arrested in Georgia after Stephen Shaw saw Hilton walk to the back of a
convenience store in the direction of the store's dumpsters and called law
enforcement. Law enforcement officers recovered items Hilton was seen
discarding in a dumpster at the convenience store. From the dumpster, law
enforcement recovered a U.S. Forestry citation for unauthorized camping, a knife
and sheath, Hi-Tee boots, some chain, a padlock, gloves, a jacket, a folding
police baton, and a blue backpack. Hilton gave Georgia officials information on
where to find his bayonet on a hiking trail on Blood Mountain in North Georgia.
Later, Jeff Foggy, an FDLE tool mark expert, matched the bayonet to the puncture
marks in Dunlap's tire. Georgia law enforcement also gathered items from
Hilton's van. Items recovered from the van included clothing, jackets, gloves,
camping equipment, duffel bags, two sleeping bags, Hi-Tee boots, a camera,
tobacco rolling papers, Hilton's Georgia driver's license, tape, paper towels, maps,
two BB pistols, a book purchased at a Tallahassee book store, and dog food.

On February 12, 2008, Sergeant David Graham and Detective Dawn Dennis with
the Leon County Sheriff's Office executed a search warrant on Hilton while he
was in custody in Georgia. Hilton's DNA was collected and the entire execution
of the warrant was recorded. Portions of the recording were played for the jury.

On June 6, 2008, Sergeant Graham and two other officers drove Hilton from
Georgia to Florida. Although Hilton was not questioned, he spoke for nearly the
entire five-hour drive, which was recorded. The State also played portions of this
recording at trial. Hilton stated:

I'm not all bad. I mean, you got to understand, I mean, I'm sure you can see. I
mean, I'm a [expletive] genius, man. I'm not a-I'm not all bad. I just, you know,
lost my mind for a little bit. Lost a grip on myself, man. What can I tell you? FBI
and everybody else is trying to scratch their head, hey, guys don't get started
doing my shit at 61 years old. It just don't happen, you know. Like there's a retired
FBI (indecipherable) named Cliff Van, Clifford Van Zandt, that keeps getting
himself in the news, talking about me. And he said, this guy didn't just fall off the
turnip truck, he said. You know, in other words, he's been doing this. But like I
told you before, you know, when I saw you before, I said, remember, I said I'd
give you one for free. Nothing before September, okay? I mean, I'm not joking,
okay? I just, I got old and sick and couldn't make a living and just lost, flat lost
my [expletive] mind for a while, man. I couldn't get a grip on it.

Additionally, Hilton made statements to a fellow inmate at the Leon County Jail
that were overheard by Correctional Officer Caleb Wynn. Specifically, Hilton
told inmate Summers that he could answer all the State Attorney's questions if he
would give him a life sentence, that he would reveal where the head was located,
that his bayonet was used on Dunlap's tire, that he would explain how he "pulled
it off" on a busy highway, that he spent a few hours or a few days with Dunlap,
and that he felt no regret other than getting caught.

373
 The penalty phase began on February 17, 2011, during which the state called Clay
Bridges of the Georgia Bureau of Investigation. Agent Bridges testified about
Hilton's prior felony conviction-the murder of Emerson in Georgia to which
Hilton pleaded guilty. The State played Hilton's taped conversation with law
enforcement where he described kidnapping Emerson, holding her captive, and
stripping her body naked to remove DNA and fiber evidence. He also stated that
"you either kill them or you get caught."

Hilton presented four expert witnesses who testified regarding his psychological
condition: Dr. Joseph Wu, a psychiatrist and clinical director of the Brain Imaging
Center at the University of California, Irvine; Dr. Charles Golden, a clinical
neuropsychologist performing neuropsychological testing and examinations; Dr.
Abbey Strauss, a psychiatrist with special expertise in psychopharmacology; and
Dr. William Mmion, a board certified psychiatric pharmacist and professor; and
nine lay witnesses. The State then called Dr. Greg Prichard in rebuttal.

On February 21, 2011, the jury recommended unanimously that Gary Hilton be
sentenced to death for the murder of Cheryl Dunlap.
The trial court held the Spencer 1 hearing on April 7, 2011. The State presented
three victim impact witnesses: (I) Ms. Emma Blount, the victim's aunt; (2) Laura
Walker, the victim's best friend; and (3) Gloria Tucker, the victim's cousin. Hilton
presented no witnesses.

The trial court found that the State had proven six aggravators beyond a
reasonable doubt. Assigning weight to each aggravator, the trial court found: (I)
the defendant was previously convicted of a violent felony (great weight); (2) the
murder was committed in the course of a kidnapping (great weight); (3) the
murder was committed to avoid arrest (moderate weight); (4) the murder was
committed for pecuniary gain (some weight); (5) the murder was especially
heinous, atrocious or cruel (HAC) (great weight); and (6) the murder was cold,
calculated, and premeditated (CCP) (great weight).

The court also considered and weighed each mitigating circumstance proposed by
Hilton and found one statutory mental mitigating factor-at the time of the
murder Hilton was under extreme emotional distress (some weight). Under the
catch-all provision, the trial court considered ten mitigating factors, finding that
Hilton established eight of them and rejecting two. The court found: (I) Hilton
grew up in an abusive household (some weight); (2) Hilton abused drugs,
specifically Ritalin (some weight); (3) Hilton was deprived of a relationship with
his biological father (moderate weight); (4) Hilton is already serving a life
sentence so society is protected (some weight); (5) Hilton served his country in
the U.S. military (very little weight); (6) Hilton suffered maternal deprivation and
lack of bonding between mother and child (some weight); (7) Hilton was removed

1
Spencer v. State, 615 So.2d 688 (Fla. 1993).

374
 from his home and put into foster care when he was a child (some weight); (8)
Hilton grew up in a financially poor family (not proven); (9) Hilton suffered a
traumatic brain injury as a child (some weight); and (I 0) Hilton suffers from
severe mental defects (not proven).

On April 21, 2011, the trial court followed the jury's unanimous recommendation
and sentenced Hilton to death. The court found beyond a reasonable doubt that the
aggravators outweighed the mitigators.

Hilton v. State, 117 So .3d 742, 746-50 (Fla. 2013) (footnote included).

On appeal to the Florida Supreme Court, Hilton raised six claims: 1) the trial court erred

in admitting his statements to law enforcement as they constituted inadmissible Williams rule

evidence because they were only relevant to show his propensity to commit the crime; 2) the trial

court erred in admitting Dr. Gregory Prichard's testimony during the penalty phase regarding

Hilton's past criminal conduct, as it constituted improper nonstatutory aggravating

circumstances; 3) the trial court erred in permitting Dr. Prichard to remain in the courtroom,

despite invocation of the rule of sequestration; 4) the trial court erred in finding that the HAC

and CCP aggravating circumstances applied, as the evidence was insufficient for such a finding;

5) the trial court erred in rejecting the lack of capacity mitigating factor and failed to provide

reasons why there is substantial, competent evidence in the record to support the rejection of this

mitigating circumstance; and 6) the Florida Supreme Court erred in upholding the death sentence

in light of Ring v. Arizona, 536 U.S. 584 (2002). The Florida Supreme Court affirmed Hilton's

convictions and death sentence. Hilton at 756. The Florida Supreme found the death sentence to

be proportionate. Hilton at 755. The Florida Supreme Court also reviewed the sufficiency of the

evidence. Id. Hilton then filed a motion for rehearing on April2, 2013, which was denied on July

2, 2013.

375
 On September 12, 2013, Hilton filed a petition for writ of certiorari in the United States

Supreme Court, raising a Rinfl claim, which was denied on December 2, 2013. Hilton v. State,

134 S.Ct. 686 (2013).

On November 25, 2014, Hilton, represented by Robert A. Morris, Esquire, filed a 3.851

Motion for Post-Conviction Relief, raising ten claims (including sub-claims). The State filed its

Answer to the Motion for Post-Conviction Relief on January 26, 2015. Thereafter, on July 24,

2015, Hilton filed a Motion for Leave to Amend Initial Postconviction Motion and Incorporated

Memorandum of Law, attaching his Amended Motion for Post-Conviction Relief. The Court

granted the Motion for Leave to Amend Initial Postconviction Motion on July 28, 2015. This is

the State's Answer to the Amended Motion for Post-Conviction Relief. This Court should

summarily deny all of the claims.

2
Ring v. Arizona, 536 U.S. 584 (2002).

376
 Evidentiary Hearings

To be entitled to an evidentiary hearing on a claim, the movant must allege specific facts.

Davis v. State, 26 So.3d 519, 533 (Fla. 2009) (finding a claim of ineffectiveness to be legally

insufficient because it did not allege specific facts and therefore, the defendant was not entitled

to an evidentiary hearing on the claim, citing Jones v. State, 998 So.2d 573, 587-88 (Fla. 2008)).

The defendant "bears the burden of establishing a prima facie case based upon a legally valid

claim." Hannon v. State, 941 So.2d 1109, 1138 (Fla. 2006); Johnston v. State, 70 So.3d 472, 483

(Fla. 2011) (explaining that where a movant presents only bare conclusory allegations on several

issues, he was not entitled to an evidentiary hearing on the claims). Furthermore, a trial court

need not conduct an evidentiary hearing on claims that are conclusively rebutted by the existing

record. Pagan v. State, 29 So .3d 938, 955 (Fla. 2009) (explaining, that while the Florida

Supreme Court encourages trial courts to hold evidentiary hearings on post-conviction motions, a

hearing is warranted only where a defendant alleges specific facts, not conclusively rebutted by

the record, which demonstrate a deficiency in counsel's performance that prejudiced the

defendant and stating that summary or conclusory allegations are insufficient); Rhodes v. State,

986 So.2d 501,513-14 (Fla. 2008) (same). Furthennore, some claims are purely a matter of law

that do not require any factual development. Claims that are meritless as a matter of law, because

there is controlling precedent against the claim, should be summarily denied. Mann v. State, 112

So.3d 1158, 1162 (Fla. 20 13) (stating "because Mann raised purely legal claims that have been

previously rejected by this Court, the circuit court properly summarily denied relief').

377
 Post-Conviction Relief

To establish ineffective assistance of counsel, a defendant must establish both deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 669 (1984). To demonstrate

deficient performance, the defendant must show that "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." !d. at 687. To demonstrate prejudice he must establish "that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different." !d. at 694.

There is a strong presumption that trial counsel's performance was not ineffective.

Lukehart v. State, 70 So.3d 503, 512 (Fla. 2011); Strickland at 689. A fair assessment of an

attorney's performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

conduct from counsel's perspective at the time. Lukehart at 512; Strickland at 689. Judicial

scrutiny of counsel's performance must be highly deferential. !d. "Strategic decisions do not

constitute ineffective assistance of counsel if alternative courses have been considered and

rejected and counsel's decision was reasonable under the norms of professional conduct."

Lukehart at 512. An attorney can almost always be second-guessed for not doing more but that is

not the standard. Pagan v. State, 29 So.3d 938, 949 (Fla. 2009). "[A] court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action 'might be considered sound trial strategy."' Strickland at 689.

The strong presumption that counsel's performance was reasonable is even stronger when

trial counsel is experienced. See Cummings v. Sec'y, Fla. Dept. of Carr., 588 F.3d 1331, 1356

378
(ll'h Cir. 2009) (citing Chandler v. United States, 218 F.3d 1305, 1316 (ll'h Cir. 2000) (en

bane). In the Eleventh Circuit's words, "experience is due some respect." Chandler at 1316.

Prejudice means that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. Strickland at 694.

A reasonable probability is a probability sufficient to undermine confidence in the outcome. "It

is not enough for the defendant to show that the errors had some conceivable effect on the

outcome of the proceeding." !d. at 693. This second prong does not require proof that "counsel's

deficient conduct more likely than not altered the outcome of the case." Gaskin v. State, 822

So.2d 1243, 1257, n.3 (Fla. 2002) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052) Instead,

it requires a showing that, in light of all the evidence surrounding his conviction, the conduct

renders the results of the proceeding unreliable. !d. at 1247; see also Strickland at 694.

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 I. TRIAL COUNSEL WAS INEFFECTIVE IN PRESENTING A "DEFENSE" OF
INNOCENCE AND/OR REASONABLE DOUBT DURING THE GUILT PHASE
AND THEN MAKING A CONCILATORY ARGUMENT IN FAVOR OF LIFE
DURING THE PENALTY PHASE, AND DEFENDANT WAS NEVER
CONSULTED ABOUT THE CONSEQUENCES OF SUCH A DEFENSE

Hilton asserts ineffective assistance of trial counsel for presenting a defense of innocence

and/or reasonable doubt during the guilt phase and then arguing in favor of a life sentence during

the penalty phase, essentially arguing that trial counsel presented inconsistent theories, and

furthermore, failed to consult with Hilton before presenting this defense. First, Hilton was

represented by a team comprised ofthree Assistant Public Defenders with extensive experience:

Maria Ines Suber, RobertS. Friedman, and Paula Saunders. Ms. Suber, lead counsel, has been a

member of the Florida Bar since 1986; Mr. Friedman has been a member since 1985; and Ms.

Saunders has been a member since 1980; all three have prior capital trial experience. Second,

trial counsel did not allude to, argue, or put on testimony or evidence in an attempt to establish

that Hilton was innocent, but merely attempted to prove reasonable doubt in the State's case- a

reasonable trial strategy. (T Vol. 24, p 47-55 & Vol. 37 p 1529-1560) In fact, attorneys

commonly have their clients enter pleas of not guilty, proceed to trial, and later, plea for mercy

during the penalty phase. Third, it is the State's position that it was trial counsel's deliberate

strategy to proceed through the guilt phase, requiring the State to present admissible evidence

establishing the essential elements of the crimes charged beyond a reasonable doubt to the jury,

before proceeding to the penalty phase. There was nothing inconsistent between what was

presented at trial and at the penalty phase.

"Because advocacy is an art and not a science, and because the adversary system requires

deference to counsel's informed decisions, strategic choices must be respected in these

circumstances if they are based on professional judgment." Strickland at 68 I. Reasonable

11

380
strategic decisions of trial counsel should not be second-guessed by a reviewing court. !d. at 689-

91. "Counsel cannot be deemed ineffective merely because current counsel disagrees with trial

counsel's strategic decisions." Occhicone v. State, 768 So.2d 1037, 1047 (Fla. 2000).

As stated previously in this Answer, a trial court need not conduct an evidentiary hearing

on claims that are conclusively rebutted by the existing record. See Pagan, 29 So3d at 955.

Because the record rebuts the allegation that trial counsel argued innocence at trial before

conceding guilt and seeking a recommendation for a life sentence at the penalty phase, this claim

should be denied.

Furthermore, Hilton has failed to establish that had he entered a plea instead of

proceeding to trial, there is a reasonable probability he would have received a different sentence

and thus, his claim fails the prejudice prong of Strickland. A plea of guilty would have resulted

in the same conviction he received from the jury. The only plausible difference in outcome

would have been the timing of the State's presentation of its evidence; the State would have

presented its evidence of Cheryl Dunlap's brutal kidnapping and murder at the penalty phase

instead of the guilt phase (and this would have been to Hilton's detriment as the evidence would

have been fresh in the jurors' minds prior to deliberating). Nonetheless, the jury would have been

presented with and considered evidence regarding the manner in which Ms. Dunlap was

kidnapped, tortured, murdered and dismembered.

This claim should be summarily denied because Hilton has failed to prove his allegations

of deficient performance by trial counsel, as well as prejudice.

12

381
 II. TRIAL COUNSEL WAS INEFFECTIVE IN THEIR FAILURE TO ADVISE
DEFENDANT OF HIS RIGHT TO ENTER A GUILTY PLEA AND PROCEED
DIRECTLY TO A PENALTY PHASE

Hilton finds fault in trial counsel's alleged failure to advise him of his right to enter a

guilty plea and proceed directly to a penalty phase. Hilton, however, has failed to cite any

authority holding that trial counsel must do this. Due to the depravity of this case, the State chose

not to make any plea offers. Thus, trial counsel was left with the decision to advise their client of

entering a plea to the court or proceeding to trial. Proceeding to trial is a tactical decision for the

defendant and his counsel, in which many variables come into play. Since it is the State's burden

to prove its case beyond a reasonable doubt, the defense presumably strategically planned for the

possible best-case scenario outcomes involving the State failing to meet its burden; for one or

more of its witnesses to fail to appear and testify at trial; for the State to fail to prove an element

of the offenses charged; for jury nullification; or for a conviction on a lesser-included offense.

Hilton had nothing to lose by proceeding to trial. A plea would have resulted in the outcome

Hilton received- a conviction of first degree murder.

As one commentator stated,

Capital case defense counsel should be aware that there is usually some value in
putting on a reasonable doubt defense even in cases where overwhelming
evidence of guilt exists. Depending on the tone of the defense, and the role
defendant plays in it, this value will not be outweighed by the possibility of
adverse sentencer reaction. The first benefit of a reasonable doubt defense in an
overwhelming evidence case is that the evidence of defendant's capital crimes,
and possibly even factors in aggravation, will come out during the guilt phase.
The rendition of a guilty verdict psychologically concludes that stage, and, at the
penalty phase, it is not likely that the prosecution will repeat its testimonial
parade. Instead, the state will probably rely on the record evidence. Although this
can still be damaging to defendant's life case, such recalled evidence tends to lose
its vividness, particularly when contrasted with penalty phase testimony favorable

13

382
 to the convicted defendant. Thus going through a guilt phase trial helps to
segregate and distance from the sentencer the prosecution's strongest case against
the defendant. Were defendant simply to admit guilt and go straight to the penalty
phase trial, the prosecution at that time would undoubtedly present much of what
it otherwise would have presented during the guilt phase.
Second, it may be possible in the course of the guilt phase trial to cross-examine
prosecution witnesses in a manner calculated to show that the defendant has
positive sides or features. For example, defense counsel might elicit from a
detective or prison official that the defendant was cooperative or remorseful or
had been a model prisoner. While such questioning is insufficient to defeat the
prosecution's guilt phase case, it lays a foundation for the presentation of
mitigating evidence at the penalty phase.
Third, putting the prosecution to its guilt phase proof also lengthens the trial and
permits the sentencer to observe the defendant and become better acquainted with
her. Depending on defendant's general demeanor and reaction to trial events, this
may dispose the sentencer in the defendant's favor.
Finally, a reasonable doubt defense does not preclude the defendant from taking
the stand, admitting the offenses, and expressing contrition or remorse. The
decision whether the defendant should testify can: be made after the quality and
strength of the prosecution's case has been assessed. Should the prosecution's case
unexpectedly turn out to be weaker than anticipated, the defendant would have the
option of remaining silent and allowing the case to go to the jury on the issue of
reasonable doubt. If, however, the case for guilt is strong, an appropriate
admission of guilt, coupled perhaps with expressions of remorse, might have a
favorable influence on the sentencer at the penalty phase.
For the reasons enumerated above, reasonable doubt defenses are not necessarily
inconsistent with the presentation of a mitigating case at the penalty phase and
may not suffer from the penalty phase advocacy limitations of denial defenses
such as alibi or mistaken identity.

Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58

N.Y.U. L. Rev. 299, 330-32 (1983).

Hilton argues that subjecting the jury to hearing about the gruesome and violent nature of

the murder again at the penalty phase prejudiced him. The State provided one witness in rebuttal:

14

383
Dr. Pritchard. He testified about his diagnosis of Hilton and how he arrived at that diagnosis. (T

Vol. 41, p 575) Specifically, he referred to testimony defense witnesses presented, such as

Hilton's abusive childhood (T Vol. 41, p 583), his childhood head injury (T Vol. 41, p 583), the

shooting of his step-father (T Vol. 41, p 584), his discharge from the military (T Vol. 41, p 585),

his prior marriages (T Vol. 41, p 589), his prior arrests (T Vol. 41, p 591)- none of these were

issues presented at trial. He did discuss defendant's statements regarding both the Florida and

Georgia murders, but that was in explaining how he reached his diagnosis, in rebuttal to the four

mental health witnesses presented by the defense, and in detailing why he felt Hilton appreciated

the criminality of his actions. (T Vol. 41, p 592-602) Specifically, Dr. Pritchard discussed how

Hilton described his actions as "hunting" (T Vol. 41, p 592) and the self-serving reason why

Hilton offered information about the location of Meredith's body in Georgia, that is, to obtain a

life sentence. (T Vol. 41, p 595) He also detailed why he believed Hilton dismembered the

bodies, removed the victim's clothing and poured bleach on Meredith's body - to cover the

murders up. (T Vol. 41, p 600) Dr. Pritchard was simply rebutting testimony presented by the

defense during the penalty phase. The jury was not twice submitted to gruesome photos or the

horrific details of what the victims endured while held captive by the defendant.

Even if some of Dr. Pritchard's testimony reiterated the repugnant nature of Hilton's

actions, it is the State's position that his actions alone resulted in a recommendation of death, not

a recitation of the fact that the two victim's bodies were dismembered.

More importantly, Hilton knew of his right to plea from his case in Georgia. In that case,

for the killing of Meredith Emerson, he chose to enter a plea in exchange for a life sentence on

January 31, 2008. (T Vol. 38, p 48) He entered this plea shortly before being returned to Florida

15

384
to face the charges in the instant case. There is no doubt, based on his plea to the case in Georgia

that he was aware of his ability to enter a plea instead of proceeding to trial.

And, again, Hilton is unable to show prejudice. The end-result would have been the same

as the jury's verdict- a conviction for first degree murder.

This claim should be summarily denied because Hilton has failed to prove his allegations of

deficient performance by trial counsel, as well as prejudice.

III. TRIAL COUNSEL WAS INEFFECTIVE BY PROVIDING AN INADEQUATE

DEFENSE TO HILTON AS A RESULT OF RANCOR, DISHARMONY,
DISCORD, ENMITY, AND HOSTILITY AMONG DEFENSE COUNSEL AND
WITHIN THE OFFICE OF THE PUBLIC DEFENDER

A. COUNSEL WAS INEFFECTIVE AS A RESULT OF THE OVERWHELMING

CASELOAD ASSIGNED TO THE OFFICE OF THE PUBLIC DEFENDER AS
WELL AS INDIVIDUAL ATTORNEYS AND THE APPORTIONMENT OF
CASES AMONG THE ATTORNEYS ASSIGNED TO THE CAPITAL SECTION

Hilton submits that lead trial counsel in this case expressed an inability to properly represent

him due to over-extension and an overwhelming caseload. However, this vague allegation does

not comport with the test announced in Strickland. The Florida Supreme Court addressed this

issue in Dennis v. State, 109 So.3d 680, 691 (Fla. 2012) when it affirmed the trial court's

summary denial of a claim of ineffective assistance of counsel. Dennis argued that trial counsel

was ineffective for failing to secure a second chair and for representing other clients while

representing him. The Court found the claim to be facially insufficient as Dennis failed to

include any allegations regarding the prejudice prong of Strickland. Dennis generally claimed

that trial counsel failed to adequately prepare for his trial, but he did not include any allegation

that there is a reasonable probability that, but for trial counsel's failure to secure a second chair

and his failure to represent only Dennis, the result of Dennis' trial would have been different or

that confidence in the outcome was undermined.

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385
 Vague and conclusory allegations, lacking specificity, are insufficient to warrant relief.

Doorbal v. State, 983 So.2d 464, 482-85 (Fla. 2008). In Doorbal, the trial court summarily

denied his claims without an evidentiary hearing because Doorbal had failed to allege a specific

omission or overt act upon which his ineffective assistance claim was based. An example

addressed by the Supreme Court was Doorbal's claim that the death of trial counsel's father

immediately prior to trial, as well as the illness of his mother, interfered with his representation

of Doorbal and resulted in ineffective assistance. Doorbal' s claim is not unlike the conclusory

allegation Hilton presents when he alleges that trial counsel was unable to adequately represent

him because of over-extension and an overwhelming caseload. See also Foster v. State, 132

So.3d 40, 62 (Fla. 2014) (reiterating its prior holdings that "mere conclusory allegations are

insufficient" to warrant evidentiary hearing and are proper for summary denial); Ragsdale v.

State, 720 So.2d 203, 208 (Fla. 1998) (finding that trial judge properly denied evidentiary

hearing where defendant provided insufficient facts as to "how the outcome would have been

different had counsel acted otherwise"); Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989)

(holding that a mere conclusory allegation of ineffective assistance is insufficient to warrant an

evidentiary hearing.) In order for a claim of ineffective assistance of counsel to be considered

meritorious, a defendant must establish two components under Strickland; Stephens, 748 So.2d

I 028, I 033 (Fla. 2000). First, a defendant must establish conduct on the part of counsel that is

outside the broad range of competent performance under prevailing professional standards.

Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). Second, the deficiency in counsel's

performance must be shown to have so affected the fairness and reliability of the proceedings

that confidence in the outcome is undermined. !d.; see also Rutherford v. State, 727 So.2d 216,

219 (Fla.l998) ("[T]he benchmark for judging any claim of ineffectiveness must be whether

17

386
counsel's conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.") (quoting Strickland, 466 U.S. at 686).

Ineffectiveness under Strickland requires more than just a showing that trial counsel was

overworked. Hilton must demonstrate with specificity "that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland at 687. Even if a defendant meets that threshold, he or she must also

prove that such an error prejudiced the defense. Id Hilton has not demonstrated how this

rendered trial counsel's performance deficient or how it caused prejudice.

Counsel has neglected to enunciate the conduct on the part of lead counsel that was

outside the broad range of competent performance under prevailing professional standards and

has failed to show that the deficiency so affected the fairness and reliability of the proceedings

that confidence in the outcome is undermined. A mere blanket statement that an overwhelming

caseload existed is insufficient.

While addressing Dom·bal's amended motion for post-conviction relief, which did not

seek to introduce new claims, but rather, supplemented existing claims with additional facts, the

Florida Supreme Court reiterated its prior holding that '[a] defendant may not raise claims of

ineffective assistance of counsel on a piecemeal basis by refining his or her claims to include

additional factual allegations after the postconviction court concludes that no evidentiary hearing

is required." Doorbal, 983 So.2d at 385, quoting Vining v. State, 827 So.2d 201,212 (Fla. 2002),

Doorbal, 983 So.2d at 385 (concluding that trial court did not err in denying rehearing "for the

first time made factual allegations relating to his claim that counsel was ineffective in

investigating and presenting mental health mitigating evidence.") The Doorbal Court concluded

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387
that his amended motion "contain[ed] the type ofpost-Huffhearing 'piecemeal' supplementation

that we condemned in Vining. "Doorball, 827 So.2d at 212.

Furthermore, the record reflects that there were nearly thirty-six months between the

filing of the complaint (February 28, 2008) and start of jury selection (January 31, 2011).

During that time, Hilton sought and received a number of continuances. 3 This was ample time,

for three attorneys assigned to Hilton's case, to prepare the case for trial, even in light of a heavy

case load. The defense deposed hundreds of witnesses listed by the State. Lead counsel inspected

over one thousand pieces of evidence. The record conclusively rebuts this allegation. See Roberts

v. State, 568 So.2d 1255, 1259 (defendant must allege specific facts that are not conclusively

rebutted by the record to be entitled to an evidentiary hearing on a claim of ineffective

assistance).

Because a mere conclusory allegation of ineffective assistance is insufficient to warrant

an evidentiary hearing, and because Hilton has failed to prove his allegations of deficient

performance by trial counsel, as well as prejudice, this claim should be summarily denied

B. COUNSEL WAS INEFFECTIVE BECAUSE THE ENTIRE DEFENSE TEAM

WAS REASSIGNED TO DIFFERENT ROLES WITHIN DAYS OF
HILTON'S TRIAL LEAVING THEM EACH INDIVIDUALLY INCAPABLE
OF BEING EFFECTIVE IN THEIR NEW AREA OF ASSIGNMENT

Hilton has failed to establish that conduct on the part of counsel that is outside the broad

range of competent performance under prevailing professional standards was taken and that the

3
In addition to the continuances granted pre~trial, Hilton's lead attorney requested a continuance on the morning
jury selection was scheduled to begin. The basis for her continuance was that she needed additional time to discuss
the case and evidence with Hilton. The trial court denied this request, finding that counsel had four more days to
have these discussions with Hilton. (T. Vol. 17, p 7-8) Counsel did not seek a continuance because she was not
prepared, had not concluded discovery, had not met with or deposed witnesses, had not reviewed the evidence, or
had not filed the necessary pleadings, etc. Furthermore, the trial docket is riddled with numerous motions filed by
trial counsel as well as hearings having been held on same. The evidence shows that Hilton's case had been
adequately prepared and litigated pre-trial.

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388
deficiency in counsel's performance so affected the fairness and reliability of the proceedings

that confidence in the outcome is undermined. If in fact, the trial team was reassigned to different

roles in the trial, the trial still proceeded, witnesses were still examined and cross-examined,

evidence was still admitted. The trial team consisted of three senior attorneys with a plethora of

experience. Surely, they could adapt to a change in roles, especially in light of the fact that they

had been appointed to represent Hilton nearly three years prior.

Again, the State submits that a mere conclusory allegation of ineffective assistance is

insufficient to warrant an evidentiary hearing. Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

Not only has counsel made a broad allegation of ineffective assistance of trial counsel based on

re-shuffling of the trial team's roles within days of trial, he has failed to demonstrate how Hilton

was prejudiced by this movement.

As such, this claim should be summarily denied.

C. COUNSEL FOR THE DEFENSE REJECTED AND FAILED TO UTILIZE

CRUCIAL MITIGATION DURING THE PENALTY PHASE THAT WAS
DEVELOPED BY THE MITIGATION EXPERT ASSIGNED TO THE CASE

Hilton argues that trial counsel failed to utilize crucial mitigation during the penalty

phase that had been developed by the mitigation expert. The record shows otherwise.

First, Hilton takes issue with a Power Point presentation of his life. Trial counsel intended

to use and attempted to publish to the jury the mitigation expert's Power Point presentation of

Hilton's life. However, the trial court sustained several of the State's objections to the slides

contained within the presentation as attempting to elicit sympathy from the jury, irrelevant, or

prejudicial. (T Vol. 40, p 354-377) It would have been extremely difficult to modify the

presentation, removing most of the slides, minutes before it was expected to be presented to the

jury. It also would not have carried the weight it had initially because most of the slides would

20

389
have been removed. As such, trial counsel opted not to present the presentation, stating "we can't

present this in a fragmented and disjointed manner." (T Vol. 40, p 375) The bottom line is that

the presentation contained numerous slides which the trial court properly ruled were

inadmissible. This was not a matter of trial counsel simply deciding not to present it. (T Vol. 40,

p 354-377) Rather, the mitigation expert, who apparently is not well-versed in evidentiary

matters, prepared a presentation which was objectionable on several grounds and thus,

inadmissible.

Second, Hilton alleges that the mitigation expert developed a chronological history of his

medical and mental health history, as well as an extensive list of witnesses. Hilton's medical and

mental history was testified to by a number of witnesses presented by the defense. At least two

interviews conducted by the mitigation specialist, Betty Fuentes, were admitted into evidence

and published to the jury; the first was an interview she conducted of Thomas L. Perchoux (T

Vol. 40, p 390) and the second was of Jin Hee Lee. (T Vol. 41, p 554) A third interview, that of

Officer Steve King of the Duluth City Police Department, was likely conducted by her (as the

witness refers to a "ma'am" in answering the interviewer's question), however the interviewer

did not specifically identify herself on the recording. (T Vol. 41, p 530)

In footnote 7, Hilton indicates that the mitigation expert's medical history of Hilton

included evidence that a former doctor of Hilton's "believed that the Defendant had 'relapsing

remitting Multiple Sclerosis' and the doctor wrote a note to a federal court seeking to excuse him

from jury duty opining that the Defendant had a 'form of Multiple Sclerosis.'" (Motion p 16)

First, this footnote does not indicate that Hilton was actually diagnosed with Multiple

Sclerosis, only that the doctor "believed" he had "relapsing remitting Multiple Sclerosis."

Second, this is a belief from the same doctor who incorrectly prescribed Ritalin and Effexor to

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390
Hilton which resulted in the doctor's disciplinary action by the Georgia State Board of Medical

Examiners and which was argued, to the jury, to have caused Hilton's mental decline and his

subsequent actions in committing the murders of Cheryl Dunlap and Meredith Emerson. Third, it

does not indicate how this evidence was to be introduced. Was the doctor going to be called or

was this more hearsay in the form of unauthenticated records, which would have presumably

been objected to, like most of the PowerPoint slides? Fourth, it would have been foolish to admit

this evidence when two other doctors presented by Hilton's defense testified that he did not have

Multiple Sclerosis and actually self-diagnosed the condition. It was simply good trial strategy in

opting not to present conflicting evidence or testimony, indicating that Hilton did have Multiple

Sclerosis. That evidence or testimony would have effectively diluted the credibility of the other

two doctors, who opined that Hilton did not have Multiple Sclerosis, and further that he suffered

from various mental ailments.

Hilton boldly concludes that trial counsel felt hopeless at the conclusion at the guilt

phase and this hopelessness affected their ability to properly represent Hilton at the penalty

phase. Other than this statement, there is nothing in the record that indicates that such a sense of

hopelessness distorted counsel's professional judgment. Their strategy was well within the range

of professionally reasonable judgments. They presented several witnesses and evidence, which

resulted in the trial court finding one statutory mental mitigating factor and that Hilton had

established eight of the ten mitigating factors he presented under the catch-all provision. Hilton

at 749-50. Simply stated, trial counsel put on what evidence they could in Hilton's defense with

what they had.

Counsel is not ineffective for strategic decisions that, in hindsight, did not work to the

defendant's advantage. Mansfield v. State, 911 So.2d 1160, 1174 (Fla. 2005). Furthermore,

22

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"strategic decisions do not constitute ineffective assistance of counsel if alternative courses have

been considered and rejected and counsel's decision was reasonable under the norms of

professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). See also Brown v.

State, 894 So.2d 137, 147 (Fla.2004); Howell v. State, 877 So.2d 697,703 (Fla. 2004).

The aggravating circumstances (Hilton was previously convicted of a violent felony -

given great weight; the murder was committed in the course of a kidnapping - given great

weight; the murder was committed to avoid arrest - given moderate weight; the murder was

especially heinous, atrocious, or cruel (HAC) - given great weight; and the murder was cold,

calculated, and premeditated (CCP) - given great weight) were so overwhelming that no

substantial prejudice resulted from the absence, at the penalty phase, of the mystery evidence the

mitigation expert developed but was allegedly not presented.

The allegation that trial counsel failed to present a 'wealth of information' in mitigation is

vague and conclusory. Aside from mention of the PowerPoint presentation, no other piece of

evidence or witness has been specifically identified. Consequently, this claim should be

summarily denied. See Dennis v. State, 109 So.3d 680, 691 (Fla. 2012); Doorbal v. State, 983

So.2d 464, 482-85 (Fla. 2008).

D. COUNSEL WAS INEFFECTIVE FOR THEIR FAILURE TO PRESERVE FOR

APPEAL THE DENIAL OF CAUSE CHALLENGES DURING JURY
SELECTION

Hilton, in a conclusory fashion, lacking detail, avers that counsel was ineffective for

failing to preserve overruled cause challenges to prospective jurors. He fails to set forth which

jurors who remained on his jury were biased, a showing required by the Florida Supreme Court's

Carratelli opinion. Because he has not and cannot comply with the requirements set forth in

Carratelli, and because this claim has been insufficiently pled, it should be summarily denied.

23

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 Carratelli v. State, 961 So.2d 312 (Fla. 2007) is the seminal case for the test to be applied

for this type of claim. In Carratelli, the Florida Supreme Court concluded that to show

ineffective assistance of counsel for failing to raise and preserve a denial of a challenge for

cause, the defendant must show that an actually biased juror sat on the jury. The court went on to

define an actually biased juror as one who is not impartial; one who is biased against the

defendant. 4 The Court concluded that evidence of actual bias must also be plain on the face of

the record. Carratelli v. State, 961 So.2d at 324. In reality, this means that an evidentiary hearing

is often not required on this type of claim. Unless the actual bias of a juror is apparent on the face

of the record, there is no need to explore, at an evidentiary hearing, whether counsel failed to

exercise a challenge against a juror who actually sat on the defendant's jury as a matter of

reasonable trial tactics. In this case, counsel did raise cause challenges to nearly all potential

jurors; a number were properly denied, and several were granted, some with and some without

agreement by the State. 5

Hilton has neglected to allege that any of the jurors who participated in the deliberations

were actually biased and furthermore, has failed to demonstrate how that bias is evident from the

record.

It necessarily follows that if Hilton cannot identify specific jurors who were in fact

biased, he cannot identify the prejudice he suffered as a result of their remaining on the jury. Had

counsel properly preserved the overruled cause challenges, Hilton would be facing the same

4
A juror is competent if he or she "can lay aside any bias or prejudice and render his verdict solely upon the
evidence presented and the instructions on the law given to him by the court." Lusk v. State, 446 So.2d 1038, 1041
(Fla. 1984); see also Guardado v. State, -- So.3d -- (Fla. 20 15) (same). Therefore, actual bias means bias-in-fact that
would prevent service as an impartial juror.
5
The State is unable to respond effectively to this sub-claim because Hilton has failed to identifY which challenges
for cause should have been preserved for appellate review.

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problem he faces today. He still cannot identify bias from the face of the record. Consequently,

this claim should be summarily denied.

Additionally, trial counsel, Ms. Suber, did exactly what Hilton complains she did not. In

keeping with Trotter v. State, 576 So.2d 691, 693 (Fla. 1990), during jury selection and after her

request for additional peremptory challenges was denied, Suber laid a record concerning a juror

she would have liked to have exercised a peremptory challenge against by stating, "I am required

to state whoever, pursuant to- I would like to keep, the record reflect that if I were to be granted

peremptory, I would strike Rice, Sally, Rice, because of her views on the death penalty." (T. Vol.

23, p I 077). Counsel cannot be deemed ineffective for failing to do something that she, in fact,

did. Bates v. State, 3 So.3d 1091, 1106, n.20 (Fla. 2009) (observing that counsel cannot be held

ineffective for what counsel actually did); Stephens v. State, 975 So.2d 405, 415 (Fla. 2007)

(explaining that counsel cannot be deemed ineffective for failing to object, when, in fact, he did.)

Lastly, this claim has been insufficiently pled. Hilton has simply alleged that trial counsel

was ineffective because cause challenges were not preserved. He does not identify which cause

challenges should have been preserved; nor he does identify which jurors who remained on his

jury were biased. He simply makes conclusory allegations. To be entitled to an evidentiary

hearing on a claim, the movant must allege specific facts. Davis v. State, 26 So.3d 519, 533 (Fla.

2009) (finding a claim of ineffectiveness to be legally insufficient because it did not allege

specific facts and therefore, the defendant was not entitled to an evidentiary hearing on the claim,

citing Jones v. State, 998 So.2d 573, 587-88 (Fla. 2008)). The defendant "bears the burden of

establishing a prima facie case based upon a legally valid claim." Hannon v. State, 941 So.2d

1109, 1138 (Fla. 2006); Johnston v. State, 70 So.3d 472,483 (Fla. 2011) (explaining that where a

25

394
movant presents only bare conclusory allegations on several issues, he was not entitled to an

evidentiary hearing on the claims). For these reasons, this claim should be summarily denied.

E. COUNSEL WAS INEFFECTIVE FOR THEIR FAILURE TO CALL MR. TABOR

AND DR. DELCHER AS WITNESSES DURING THE GUILT AND PENALTY
PHASE

Hilton asserts that trial counsel was ineffective for failing to present the testimony of his

former employer, Mr. Tabor, and his former physician, Dr. Deicher. Counsel was not ineffective

because the testimony, at the guilt phase would have been inadmissible; because the testimony,

at the penalty phase, would have been cumulative to other testimony and evidence that had been

presented to prove the facts these witnesses would have otherwise testified to; counsel made the

reasonable strategic decision not to present Tabor and Dr. Deicher, who could have been more

harmful than beneficial to Hilton's case; and Hilton has failed to demonstrate the prejudice he

suffered as a result of these witnesses not being called. Thus, counsel was not ineffective and this

claim should be summarily denied.

While acknowledging that his defense did not involve insanity or involuntary

intoxication, Hilton's Amended Motion alleges that this testimony should have been presented to

suggest to the jury, during both phases of the trial, that he should not be held responsible for the

complete culpability of his actions due to Dr. Deicher's actions in prescribing Hilton various

medications. (Amd Motion p 20). This type of evidence of would have been inadmissible during

the guilt phase as evidence bordering on diminished capacity, a defense not recognized in

Florida. The Florida Supreme Court has previously held that defense counsel is not ineffective

for failing to present the defense of diminished capacity because diminished capacity is not a

viable defense in Florida. See Chestnut v. State, 538 So.2d 820 (Fla. 1989) (holding that

diminished capacity is not a viable defense); see also Hodges v. State, 885 So.2d 338, 352 n. 8

26

395
(Fla. 2004) ("This Court has held on numerous occasions that evidence of an abnonnal mental

condition not constituting legal insanity is inadmissible to negate specific intent."); Spencer v.

State, 842 So.2d 52, 63 (Fla. 2003) (holding that evidence of defendant's disassociative state

would not have been admissible during the guilt phase).

At the penalty phase, defense expert, Dr. Strauss was specifically asked about reviewing

Mr. Tabor's deposition. He told the jury that he had in fact reviewed the deposition transcript,

and that Tabor indicated that he noticed a recent change in Hilton's behavior, especially from the

use of Ritalin. He referred to Tabor's statement that Hilton had manic symptoms, sometimes

speaking so quickly that it was hard to understand him. He relayed Tabor's observations of

Hilton becoming more disagreeable or difficult to speak to. Dr. Strauss told the jury that Tabor

described Hilton's behavior as "bizarre." (T. Vol. 40, p 327-29) Dr. Strauss testified that Tabor

had previously explained that Hilton had become hostile, threatening, and demanded money

from him. The defense also presented uncontroverted evidence that Hilton had been incorrectly

prescribed Ritalin and Effexor, and that those prescriptions could have led to his mental decline,

through expert testimony from Dr. Wu (T. Vol38, p 135), Dr. Strauss (T. Vol. 39, p 240) and Dr.

Morton (T. Vol. 40. p 337). Finally, the defense admitted records from the Georgia State Board

of Medical Examiners, reflecting Dr. Deicher's disciplinary action for the improperly prescribed

medications to Hilton. (T. Vol. 38 p 87-95). During his cross-examination of the State's expert,

Dr. Prichard, trial counsel successfully elicited similar testimony concerning Dr. Deicher's

improper prescription of Ritalin and Effexor and the effect others noticed it had on Hilton, as

well as Tabor's observations. (T. Vol. 42, p 656-63) Thus, evidence of Tabor's views were

presented to the jury via expert testimony.

27

396
 It is well-established that counsel cannot be found ineffective for failing to provide

cumulative evidence. Gudinas v. State, 816 So.2d 1095, 1108 (Fla. 2002); see also Card v. State,

497 So.2d 1169, 1177 (Fla. 1986) ("We refuse to render counsel ineffective for failing to proffer

testimony that would have been entirely cumulative."); Kilgore v. State, 55 So.3d 487, 504 (Fla.

2010) (same). Since this was un-rebutted evidence, there was no need to present additional

testimony proving this matter. Certainly, counsel cannot be deemed ineffective for failing to

present cumulative evidence proving the same point. Thus, this claim should be denied.

Interestingly, collateral counsel makes no mention of whether either of these witnesses

were available to testify at trial. Presumably, this is why the defense presented the evidence

through expert testimony and not from the witnesses themselves. 6 Collateral counsel has not

demonstrated that the witnesses were actually available at the time of trial. "A defendant cannot

establish ineffective assistance of counsel based on counsel's failure to call a witness who is

unavailable." White v. State, 964 So.2d 1278, 1286 (Fla.2007); see also Evans v. State, 995 So.2d

933, 943 (Fla. 2008) (finding that trial counsel was not ineffective for failing to call an

unavailable witness at trial where reasonable efforts were made to find the witness).

Furthermore, "[ c]ounsel cannot be deemed ineffective merely because current counsel

disagrees with trial counsel's strategic decisions." Occhicone v. State, 768 So.2d 1037, 1047 (Fla.

2000). Counsel's strategic decisions will not be second-guessed on collateral attack. Johnson v.

State, 769 So.2d 990 (Fla. 2000); see Remeta v. Dugger, 622 So.2d 452 (Fla. 1993). Here, it was

more beneficial to the defense to present information obtained from Hilton's fonner employer,

Tabor, who feared Hilton, through an expert witness. First, such a presentation limited the State's

ability to cross-examine the witness. Second, it required less pre-trial preparation. And, third, the
6
Testimony was elicited from Dr. Prichard indicating that Tabor was "very frightened of Mr. Hilton. 1' One may
infer that he may have been an uncooperative witness for the defense. (T. Vol. 42, p 664)

28

397
defense could have the expert testify to only those pieces of evidence which would benefit their

client, without risking opening the door to other damaging information.

Finally, Hilton has failed to demonstrate the prejudice he suffered as a result of counsel

not having presented the testimony of Tabor and Dr. Deicher. Certainly, based on the weight of

evidence against Hilton, the outcome of both the guilt and penalty phases would not be any

different had these witnesses testified, especially since their testimony would have been

cumulative to the testimony provided by defense expert witnesses.

Thus, for the reasons argued above, this claim should be summarily denied.

F. COUNSEL WAS INEFFECTIVE FOR THEIR FAILURE TO TIMELY OBJECT

TO THE MENTION OF THE MOVIE "DEADLY RUN" DURING DR. WU'S
TESTIMONY WHICH THEN SERVED TO "OPEN THE DOOR" FOR THE
STATE TO ELICIT TESTIMONY THROUGH DR. PRICHARD AS WELL AS
ARGUMENT

Hilton argues that counsel should have objected to Dr. Wu's testimony, during cross-

examination, concerning a movie entitled, "Deadly Run." He submits that failure to object

constitutes ineffective assistance of counsel. To the contrary, counsel was not ineffective and any

objection raised would have been overruled since the line of questioning was completely proper

in light of the testimony Dr. Wu provided during his direct examination.

There was no legal basis on which to object to cross-examination of Dr. Wu on matters

concerning the movie, "Deadly Run" as Dr. Wu had testified about it during direct examination.

Specifically, he stated,

... [Hilton] started to become more paranoid about his employer, started to
become more demanding. And his employer noted that he wouldn't stop talking
and that when the employer tried to get a word in edgewise, he would shout over
him if he tried to respond. And the employer noted that he just became more and
more bizarre. And the employer noted that he started to become delusional, that
he said was involved in making a movie called Deadly Run.

29

398
(T. Vol. 38, p 128) (emphasis added) "It is too well settled to need citation of authority that a fair

and full cross-examination of a witness upon the subjects opened by the direct examination is an

absolute right, as distinguished from a privilege ...." Coco v. State, 62 So.2d 892, 894 (Fla.

1953) (en bane). "[C]ross-examination is not confined to the identical details testified to in chief,

but extends to its entire subject matter, and to all matters that may modify, supplement,

contradict, rebut or make clearer the facts testified to in chief.... " Boyd v. State, 910 So.2d 167,

185 (Fla. 2005) (quoting Coco. 62 So.2d at 895). "A prosecutor can use cross-examination to

delve further into issues raised during the direct examination and to impeach a witness's

credibility." See Steinhorst v. State, 412 So.2d 332, 337 (Fla. 1982). Because Dr. Wu testified

about the movie, "Deadly Run," during his direct examination, it was completely proper for the

State to inquire further during its cross-examination. Any objection to this line of questioning

during cross-examination would have been meritless and overruled. Thus, counsel cannot be said

to have been ineffective for failing to object. An attorney is not ineffective for failing to raise or

preserve a meritless issue. Ladd v. Jones. 864 F.2d 108, 109-10 (lith Cir.); United States v.

Winfield, 960 F.2d 970, 974 (lith Cir. 1992) ("a lawyer's failure to preserve a meritless issue

plainly cannot prejudice a client"); Chandler v. Moore, 240 F.3d 907, 917 (I ith Cir. 2001)

(finding that counsel was not ineffective for failing to raise a meritless issue). Counsel was not

ineffective for failing to raise an objection to cross-examination which was perfectly lega1. 7

Some claims are purely a matter of law that do not require any factual development.

Claims that are meritless as a matter of law, because there is controlling precedent against the

claim, should be summarily denied. Mann v. State, 112 So.3d 1158, 1162 (Fla. 2013) (stating
7
Further. it should be noted that Dr. Prichard, during his direct examination, addressed the movie, after which
counsel immediately raised an objection, which was overruled by this Court. (T. Vol. 41, pg. 592). Counsel cannot
be deemed ineffective for doing exactly what the defendant claims he did not. Bates v. State, 3 So.3d 1091, 1106,
n.zo (Fla. 2009)

30

399
"because Mann raised purely legal claims that have been previously rejected by this Court, the

circuit court properly summarily denied relief.") Here, the record clearly reflects that Dr. Wu

testified about the movie, "Deadly Run" during his direct examination, thus opening the door to

subsequent cross-examination on that matter, as well as testimony from other experts and

argument during closing.

Hilton cannot demonstrate the requisite prejudice. The amount of evidence presented by

the State at the penalty phase was overwhelming. The outcome of his penalty phase, that is, the

sentence of death, would not have been any different without reference to the movie, in light of

the State's evidence proving the aggravating circumstances.

In sum, counsel was not ineffective for not objecting to cross-examination of Dr. Wu on

matters concerning the movie, "Deadly Run" because any objection would have been meritless

since he had testified about the very same issue during his direct examination, and such an

objection would have been overruled. This claim should be summarily denied.

G. COUNSEL WAS INEFFECTIVE FOR THEIR FAILURE TO PREPARE FOR,

OBJECT TO, AND COMBAT TESTIMONY RELATED TO PRIOR
UNCHARGED ALLEGATIONS OF SEX OFFENSES; SPECIFICALLY
DURING DR. PRICHARD'S TESTIMONY

Hilton avers that it was improper for Dr. Prichard to testify to his prior bad acts,

specifically alleged sexual misconduct involving his former wife's two underage children, and

submits that that trial counsel was ineffective for failing to object to it. 8 The record clearly rebuts

this allegation; trial counsel did, in fact, object to this testimony, citing "collateral damage" as

the basis for his objection, which was overruled by this Court. (T. Vol. 41, p 589-90) This Court

8
Interestingly, collateral counsel complains that Dr. Prichard's testimony was "reliant upon hearsay upon hearsay"
which is akin to the testimony provided by defense experts, Drs. Wu and Strauss, who told the jury about Mr.
Tabor's prior testimony that they gathered from reviewing a prior interview conducted by Georgia authorities, as
well as a prior deposition.

31

400
properly found the evidence of Hilton's prior bad acts, which occurred prior to his ingestion of

Ritalin, admissible as rebuttal to the defense's theme that he "never did anything wrong until

these murders, and that it was a sudden change in his life created by Ritalin .... " (T. Vol. 41, p

607) Because the record clearly rebuts this claim, it should be summarily denied. Pagan v. State,

29 So.3d 938, 955 (Fla. 2009) (A trial court need not conduct an evidentiary hearing on claims

that are conclusively rebutted by the existing record.)

Although Dr. Prichard briefly testified about the alleged sexual misconduct (which

consisted of just over two pages of trial transcript from eighty-five pages of his entire trial

testimony), trial counsel obtained concessions that there had been no convictions for the bad acts

he described concerning sexual misconduct with two underage children; that he was not even

aware of the children's names; and that he had not spoken to the children who were now adults.

(T. Vol. 41, p 641-43) Trial counsel effectively countered Dr. Prichard's direct examination

testimony.

Not only did trial counsel raise a timely objection to this line of questioning, he then

thoroughly cross-examined Dr. Prichard about same, obtaining helpful concessions for Hilton's

defense. This hardly rises to the level of deficient performance.

Counsel cannot be deemed ineffective for failing to do something that he, in fact, did.

Bates v. State, 3 So.3d 1091, 1106, n.20 (Fla. 2009) (observing that counsel cannot be held

ineffective for what counsel actually did); Stephens v. State, 975 So.2d 405, 415 (Fla. 2007)

(explaining that counsel cannot be deemed ineffective for failing to object, when, in fact, he did.)

This evidence in the record clearly rebuts this claim.

Not only did trial counsel raise a timely objection, but the trial court correctly overruled

it. The case law on prior bad acts is clear. The Florida Supreme Court has previously held, "[t] is

32

401
permissible to introduce evidence that helps to put the entire case into perspective to the extent

that its relevance is not outweighed by its prejudicial effect." Zack v. State, 753 So. 2d 9, 17 (Fla.

2000). See also Wuornos v. State, 644 So.2d 1000, 1007 (Fla. 1994) (finding that trial court's

ruling that State's use of defendant's prior bad acts was proper to rebut her allegation that she

had killed the victim in self-defense). In this case, just as in Wuornos, the prior bad acts evidence

did not become a feature of the trial and was relevant to rebut the claim that Hilton had lived a

rather crime-free life until he was prescribed Ritalin and Effexor.

Finally, the Florida Supreme Court addressed this issue and determined that Hilton's

expert's testimony opened the door for Dr. Prichard's testimony, thus the trial court properly

admitted the testimony. Hilton, 117 So.3d at 751. Thus, this issue is meritless as a matter of law,

and should be summarily denied. Mann v. State, 112 So.3d 1158, 1162 (Fla. 2013) (stating

"because Mann raised purely legal claims that have been previously rejected by this Court, the

circuit court properly summarily denied relief").

For all of the reasons argued above, this sub-claim should be summarily denied.

H. COUNSEL WAS INEFFECTIVE FOR THEIR FAILURE TO PREPARE FOR

TESTIMONY FROM A CORRECTIONAL OFFICER WHO TESTIFIED TO
OVERHEARING DIRECT ADMISSION OF GUILT WHICH CHANGED THE
COMPLEXION OF THE CASE FROM ONE OF CIRCUMSTANTIAL
EVIDENCE TO DIRECT EVIDENCE OF GUILT

Hilton avers that his trial counsel was unaware that the State intended to call Correctional

Officer Caleb Wynn to testify to admissions he overhead Hilton make while in custody at the

jail. This allegation is clearly rebutted by the record and, thus, should be summarily denied.

Correctional Officer Caleb Wynn was called as a witness by the State. His testimony was

initially proffered outside the jury's presence. (T. Vol. 34, p 1215-1262) Thereafter, he was

33

402
permitted to testimony before the jury. 9 He explained that he was employed by the Leon County

Sheriffs Office and worked at the county jail. (T. Vol. 34, p 1239) On August 21, 2008, he

overheard a conversation between Hilton and another inmate, Fred Summers, during which

Hilton said, "if the State would give him life, he'd tell them where the head is and that the family

would probably want to know." Hilton's statement was followed by laughter. (T. Vol. 34, p

1241; 1243) On August 25, 2008, he overheard Hilton say, "the only regret he's got is getting

caught and if he had a second chance, he would do it right. And he stated that he could kick

hisself in the ass every day for it." (T. Vol. 34, p 1244) Correctional Officer Wynn also recalled

Hilton stating, "that all the answers to Willie Meggs' questions and everybody else's questions

could be answered tomorrow and everything could be over tomorrow if the State would give him

life." (T. Vol. 34, p 1244-45) Officer Wynn detailed how Hilton found Dunlap attractive,

explaining that she worked as a Sunday school teacher; Hilton imagined that "plenty of guys

must have wanted" her. (T. Vol. 34, p 1246) When asked whether he got a rush from killing,

Hilton was overheard describing the feeling like "being in the military. You got to go in and

destroy the village like a warrior," after which he began laughing "awkwardly." (T. Vol. 34, p

1246-47)

Ms. Suber declined to cross-examine Officer Wynn during the proffer, but moved to

exclude him as a witness, arguing that the State committed a discovery violation by only

providing his report and not specifically providing the substance of Hilton's statements. (T. Vol.

34, p 1220-26) The State responded by informing the Court that Officer Wynn's report had been

9
As a result of Suber's strenuous objections to Officer Wynn's proffered testimony, she was successful in obtaining
a ruling that Wynn was not permitted to testify about Hilton's statements that he was "very selective" of the victims
he chose. (T. Vol. 34, p 1237)

34

403
provided to the defense in discovery September, 201 0; his name was listed at jury selection 10 ; his

testimony was addressed in the State's opening statement 11 ; the substance of his testimony was

discussed between the State and defense; Officer Wynn had been sitting outside the courtroom

for three days of trial; the defense never asked the State how to get in touch with him; and the

contents of Hilton's statements, which Officer Wynn testified to, were in his report. (T. Vol. 34,

p 1228). Most importantly, Officer Wynn's deposition had been scheduled for the Friday before

trial, yet Ms. Suber cancelled it, a fact Ms. Suber acknowledged. (T. Vol. 34, p 1227-29) After

hearing from both sides, the Court declined to exclude Officer Wynn's testimony, determining

that his report had been provided to defense in discovery in September, 2010 and that the defense

had not suffered prejudice, commenting that it could not see how the trial strategy would have

changed if Officer Wynn had been specifically listed on the State's witness list, and futther, that

the defense had known the State was going to call him at trial based on its reading of his name to

the jury and mention of him during its opening statements. (T. Vol. 34, p 1231-32) The Court did

allow the defense time to speak to Officer Wynn and ordered the State to make him available.

Ms. Suber cross-examined Officer Wynn during his trial testimony before the jury. (T.

Vol. 34, p 1247-62) She questioned Wynn about the contents of his reports, detailing the

statements he testified to. (T. Vol. 34, p 1250) She was able to get Wynn to concede that every

detail he testified to on direct was not in his reports and that he did not include Ms. Dunlap's

name in his report, when detailing Hilton's statements about his victim. (T. Vol. 34, p 1251;

1254) She was also able to get Wynn to admit that he did not notate the fact that Hilton and

10
Officer Caleb Wynn's name was read to the panel of prospective jurors on February 2, 201!. (T. Vol. 22. p 671)
11
During its opening statement, the State discussed the fact that the jury would hear "statements that [Hilton] made
to law enforcement and you'll hear statements that he made to an inmate when he didn't know that law enforcement
was listening." (T. Vol. 24, p 45)

35

404
Summers spoke on his daily Jogs for either August 21 or August 25, 2008. (T. Vol. 34, p 1259-

60)

"To be entitled to an evidentiary hearing on a claim of ineffective assistance, the

defendant must allege specific facts that are not conclusively rebutted by the record and which

demonstrate a deficiency in performance that prejudiced the defendant." Roberts v. State, 568

So.2d 1255, 1259 (Fla. 1990). As to this claim, the record is full of evidence contradicting this

claim, including the reading of Officer Wynn's name to the prospective jury; mention of his

testimony during the State's opening statement; his report was provided to the defense, in

discovery, in September, 2010; and trial counsel had scheduled Officer Wynn's deposition

before trial.

Trial counsel did object after the State's proffer of Officer Wynn's testimony. This Court

heard argument and ultimately ruled that Officer Wynn could testify to all but one statement

made by Hilton. Raising an objection to the anticipated testimony does not constitute deficient

performance.

Hilton has failed to even attempt to address prejudice in this claim. The bottom line is

that this testimony would always have been admissible as a statement by a party opponent. There

was no keeping it from the jury's consideration. !-lad counsel deposed the officer prior to trial, it

would not have changed his testimony and it would have still been presented to the jury. Counsel

did cross-examine Officer Wynn in an attempt to undermine his credibility, but as is most often

the case with uninterested witnesses, it did not seem to sway the jury. Additionally, there was a

plethora of evidence proving Hilton's guilt. The outcome of the guilt phase would not have been

any different had trial counsel spent more time investigating Officer Wynn's statements.

36

405
 Furthermore, this claim has been insufficiently pled. Hilton has simply alleged that trial

counsel was ineffective because they "were unaware of the fact that a correctional officer would

be testifying to admissions that were overheard and attributed to the Defendant." He further

states, "[t]he Defendant asserts that this lack of preparation and lack of ability to address this

testimony in conjunction with the entirety of the trial served to be ineffective assistance of

counsel." (Amd Motion p 23) He does not identify what constitutes "lack of preparation;" nor

does he identify what prejudice he suffered as a result. He simply makes vague and conclusory

allegations. To be entitled to an evidentiary hearing on a claim, the movant must allege specific

facts. Davis v. State, 26 So.3d 519, 533 (Fla. 2009) (finding a claim of ineffectiveness to be

legally insufficient because it did not allege specific facts and therefore, the defendant was not

entitled to an evidentiary hearing on the claim, citing Jones v. State, 998 So.2d 573, 587-88 (Fla.

2008)). The defendant "bears the burden of establishing a prima facie case based upon a legally

valid claim." Hannon v. State, 941 So.2d 1109, 1138 (Fla. 2006); Johnston v. State, 70 So.3d

472, 483 (Fla. 2011) (explaining that where a movant presents only bare conclusory allegations

on several issues, he was not entitled to an evidentiary hearing on the claims).

For all of these reasons, this claim should be summarily denied.

I. COUNSEL WAS INEFFECTIVE FOR FAILING TO BE PROPERLY

PREPARED FOR THE TESTIMONY OF THEIR OWN EXPERT AND
INVITING THE IMPEACHMENT OF THEIR WITNESS ON THE VERY ISSUE
THAT THEY SOUGHT TO UTILIZE AS A DEFENSE

Hilton complains that trial counsel was completely unprepared for impeachment of their

own expert witness, Dr. Strauss. However, and again, the record conclusively rebuts this

allegation. Because the record rebuts this allegation, it should be summarily denied.

At the conclusion of his direct examination, the following exchange occurred between

Dr. Strauss and trial counsel, Robert Friedman:

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 FRIEDMAN: Just a couple more questions. How long have you been practicing
psychiatry in the state of Florida?

STRAUSS: Since 1985.

FRIEDMAN: And have you ever had any disciplinary actions?
STRAUSS: I have.

FRIEDMAN: Anything recently?

STRAUSS: I had a -- in 2005 I was disciplined by the State-- do you want me to
go into some details or what, sir?

FRIEDMAN: Not necessarily. Have you ever had any disciplinary actions--
STRAUSS: Yes, I have.
FRIEDMAN:-- recently?

STRAUSS: And there is a second one ongoing that is not yet settled. But these are
from incidents that occurred in 1997 and 1999 related to some record keeping issues.
Recordkeeping issues were changed. The patients -- no one was ever injured. There is no
damages to patients in either case. So.
FRIEDMAN: That's all I have.
(T, Vol. 39, p 262-63) (emphasis added)

Clearly, not only was counsel prepared for impeachment of Dr. Strauss with his

disciplinary actions, he sought to address it during his direct examination, in an attempt to take

the wind out of the State's sails. Counsel cannot be deemed ineffective for failing to do

something that he, in fact, did. Bates v. State, 3 So.3d 1091, 1106, n.20 (Fla. 2009) (observing

that counsel cannot be held ineffective for what counsel actually did); Stephens v. State, 975

So.2d 405, 415 (Fla. 2007) (explaining that counsel cannot be deemed ineffective for failing to

object, when, in fact, he did.)

Hilton fails to provide a record cite for his allegation that trial counsel "was unfamiliar

with this circumstance and acknowledged it on the record." What is in the record is Friedman's

comment that he had not seen a copy of the state medical's board order, which the State used to

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impeach Dr. Strauss. (T. Vol. 39, p 264) Not having previously seen an order and not being

familiar with bases for impeachment of your own witness are two very different things. Hilton

has made a leap he cannot support with evidence from the record.

The evidence in the record clearly rebuts this claim. A trial court need not conduct an

evidentiary hearing on claims that are conclusively rebutted by the existing record. Pagan v.

State, 29 So.3d 938, 955 (Fla. 2009). Consequently, this claim should be summarily denied.

IV. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE

AND PRESENT EVIDENCE RELATED TO DEFENDANT'S EARLY
CHILDHOOD DEVELOPMENT, BRAIN TRAUMA, INJURY, CONGNITIVE
IMPAIRMENT AND MENTAL HEALTH

Hilton falls short of meeting his burden under Strickland as it relates to this claim.

Contrary to the assertion that trial counsel failed to properly investigate matters related to

Hilton's early childhood development, brain trauma, injury, cognitive impairment and mental

health, trial counsel presented four mental health experts during the penalty phase who testified

to these matters as they related to their opinions regarding Hilton's mental health at the time of

the murders. Not only had trial counsel thoroughly investigated these matters, but they then

provided them to the four mental health experts to assist them in evaluating Hilton. Furthermore,

trial counsel presented the testimony of several lay witnesses who testified about Hilton's

childhood and apparent mental health issues. It should also be noted that Hilton concedes this

matter in his own Amended Motion for Post-Conviction Relief on page 32, "[i]n the instant case,

the Defendant presented extensive evidence of mental health issues, defect, injury and

impairment."

First, trial counsel presented the testimony of Dr. Joseph Wu. Dr. Wu, testified that he

was a medical doctor at the University of California, Irvine, College of Medicine, having been

with the college since 1988; was licensed to practice in the State of California; was the clinical

39

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director of the Brain Imaging Center; and was an Associate Professor in residence in the

Department of Psychiatry and Human Behaviors. (T Vol. 38, p 98) He further testified that he

had published over fifty peer-reviewed articles on brain imaging and neuropsychiatric disorders

and specialized in the area of neuropsychiatry. (T Vol. 38, p 99) At the time of his testimony, he

had testified as an expert in the field of neuropsychiatry on at least thirty occasions. (T Vol. 38, p

99-100) Dr. Wu relied heavily on Hilton's childhood head injury which caused brain damage at

age ten, his "emotional abuse, rejection," and the mismanagement of the Ritalin prescribed

during the years preceding the murders, in concluding that Hilton's ability to exercise judgment

and impulse control were significantly impaired. (T Vol. 38, p 135)

Second, trial counsel presented the testimony of Dr. Charles Josh Golden, a licensed

psychologist, with nearly thirty-five years experience, and a subspecialty in neuropsychology. (T

Vol. 39, p !59) He testified that he taught at Nova Southeastern University in the doctoral-level

teaching pro gram and devoted approximately ten percent of his time to his private practice. (T

Vol. 39, p 159-60) He also published over three hundred books, chapter and articles and had

testified as an expert well over one hundred times. (T Vol. 39, p 160) He conducted

neuropsychological testing of Hilton, as well as an interview. (T Vol. 39, p 190) He learned that

Hilton was uncomfortable around people- he couldn't relate to others. (T Vol. 39, p 187) He

learned that Hilton had depressive episodes and previously attempted suicide. (T Vol. 39, p 190)

He had manic episodes. (T Vol. 39, p 191) He learned that Hilton had "serious problems as a

child." He testified that Hilton had a brain injury; he had rheumatic fever as a child; his father

walked out on him; his mother remarried a man he despised; he did poorly in school; and he

moved from school to school. (T Vol. 39, p 191-2) Dr. Golden diagnosed Hilton with organic

personality disorder, which he determined was produced by a combination of brain injury and

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social events (T Vol. 39, p 193), finding that his ability to conform his conduct to the

requirements of law was substantially impaired. (T Vol. 39, p 195) Dr. Golden, on cross-

examination, agreed that Hilton's drug abuse and alcohol abuse throughout his lifetime also

contributed to his diagnosis. (T Vol. 39, p 204)

Third, trial counsel presented the testimony of Dr. Abbey Strauss, a psychiatrist with a

medical degree. (T Vol. 39, p 215) Dr. Strauss testified that he was licensed to practice in the

State of Florida since 1985. (T Vol. 39, p 216) He had testified as an expert somewhere between

two hundred and two hundred fifty times. (T Vol. 39, p 216) Dr. Strauss was specifically asked

about what he knew of Hilton's background. He explained that he was aware of Hilton's

"horrible, horrible childhood," (T Vol. 39, p 236) including his parents' divorce; his relationship

with his step-father; his mother's rejection of him for his step-father; his time in foster care; the

lack of bonding between he and his mother or any parental figure; the fact that he shot his step-

father at age fourteen; and the lack of relationship between he and his biological father. (T Vol.

39, p 237-9) He explained that the failure of his mother to be a prominent figure in his life

resulted in the Oedipus complex (T Vol. 39, p 244) and described how that affected him as he

progressed into adulthood. (T Vol. 39, p 247-8) He testified to knowledge of the mismanagement

of the Ritalin and Effexor prescribed during the years preceding the murders. (T Vol. 39, p 240)

He reviewed the deposition of Hilton's fonner employer, Mr. Tabor, who provided insight into

the change Hilton underwent during the time he was taking the combination of Ritalin and

Effexor. (T Vol. 39, p 242) He had also been given copies of Hilton's military discharge records.

(T Vol. 39, p 243) Dr. Strauss concluded with a diagnosis of antisocial personality disorder and

schizoaffective disorder, which had existed for a "very, very long time in his life" emphasizing

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that the situations in his life "mostly triggered by the inappropriate prescriptions of the Ritalin

and Effexor that just pushed him over the edge." (T Vol. 39, p 260)

Fourth, trial counsel presented the testimony of Dr. William Alexander Morton, Jr., a

Professor Emeritus of Pharmacy at the Medical University of South Carolina, the College of

Pharmacy and Clinical Associate Professor of Psychology and Behavioral Sciences in the

Department of Psychiatry at the Medical University of South Carolina, with twenty-eight years

experience, specializing in psychopharmacology and a subsection of addictions. (T Vol. 40, p

299-300) He testified that he authored forty-six peer-reviewed publications, including one about

the phenomena of what occurs when people abuse Ritalin. (T Vol. 40, p 303) He had testified as

an expert in psychopharmacology addictions and psychopharmacy practice just over sixty times.

Dr. Morton testified that the Office of the Public Defender provided him with a number of

documents and records prior to meeting with Hilton. (T Vol. 40, p 305) He also reviewed a

number of tapes, videotapes (of law enforcement interviews and home videos taken by Hilton

himself) (T Vol. 40, p 331), and audiotapes and transcripts in order to indirectly observe Hilton

prior to evaluating Hilton. (T Vol. 40, p 306) Dr. Morton was aware of Hilton's prescription

dosages and the dates during which he was prescribed Ritalin and Effexor. (T Vol. 40, p 312) He

also reviewed Dr. Deicher's disciplinary records from the Georgia State Board of Medical

Examiners and the deposition of Hilton's former employer, Mr. Taber. (T Vol. 40, p 326) He

was familiar with Hilton's history of extensive substance abuse as an adolescent and young

adult. (T Vol. 40, p 342) He interviewed Hilton on January 29, 2010. (T Vol. 40, p 333) In Dr.

Morton's opinion, Hilton's prescribed drug combination of Ritalin and Effexor would be

expected to produce profound and unwanted side effects and behavioral changes. (T Vol. 40, p

337)

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 Trial counsel also presented the previously-videotaped statement of Victorine Rowe, the

neighbor of Hilton and his mother in April, 1951. (T Vol. 40, p 379) She testified about hearing

Hilton's mother screaming and learning that a Murphy bed had fallen on Hilton, splitting his

head open. She described the injury as appearing as if Hilton had been scalped. (T Vol. 40, p

380).

Next, trial counsel presented the previously-videotaped statement of Thomas Perchoux.

He testified that he became acquainted with Hilton as a result of his wife having worked with

Hilton's mother in the late 1950's through early 1960's. (T Vol. 40, p 392) Hilton's mother

subsequently asked Mr. Perchoux and his wife to take care of Hilton because she was having

problems with him and he was having problems with her husband, Hilton's step-father. (T Vol.

40, p 394-5) He was told that Hilton had been seeing a psychiatrist, but didn't know why. (T Vol.

40, p 395) Hilton's mother and step-father never came to visit Hilton while he was in the

Perchoux's care. (T Vol. 40, p 400) After some time had passed, Hilton's mother returned for

him and he never saw Hilton again. (T Vol. 40, p 400)

Trial counsel presented an audio recording of Hilton's mother, Cleo Debag, who was

deceased at the time of the trial. Ms. Debag testified that Hilton never knew his biological father.

(T Vol. 41, p 420) She stated that Hilton's step-father, Nilo, mentally abused and often yelled at

Hilton. (T Vol. 41, p 430) She advised that Hilton changed schools often before reaching the

sixth grade (T Vol. 41, p 434) and often stayed at school for as little as three to four months

before they moved to another city. (T Vol. 41, p 441) She spoke about some childhood injuries

Hilton suffered, including a broken hand and the injury to his head from the Murphy bed

accident. (T Vol. 41, p 444-45) She discussed two failed marriages. (T Vol. 41, p 460, 469-70)

She volunteered that she had not talked to her son for the ten years prior to the murders after he

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became angry with her for not giving him money. (T Vol. 41, p 476) She detailed the incident in

which Hilton shot his step-father (T Vol. 41, p 484), which led to Hilton being sent to juvenile

hall (T Vol. 41, p 487) before going to stay with a friend. (T Vol. 41, p 485) He did not return

home until Ms. Debag told the authorities that she would leave her husband to regain custody of

Hilton. (T Vol. 41, p 487) She also relayed an incident during which she miscarried and had to

have Hilton call the doctor's office. She had to leave Hilton at their apartment alone while she

obtained medical treatment. She described him as being "scared to death." (T Vol. 41, p 489)

Maria Dabag Castelli, the sister ofNilo Debag, Hilton's step-father, testified for Hilton.

She explained that Nilo didn't love Hilton; didn't associate much with him; and in her opinion,

was jealous of Hilton. (T Vol. 41, p 507-8) She also described Hilton's mother as not being a

loving or affectionate mother and her relationship with Hilton as "cold." (T Vol. 41, p 508)

Sandy Herman Carr, Hilton's junior high school girlfriend also testified on his behalf. (T

Vol. 41, p 513) She testified that Hilton and his step-father did not get along at all. (T Vol. 41, p

514) She testified about her knowledge of Hilton shooting his step-father at the age of fourteen

and subsequently being sent to foster case as a result. She described how Hilton appeared more

relaxed while in foster care than he had been at home with his mother and step-father. (T Vol.

4l,p516)

Roy Cave, a high school friend of Hilton's testified about their tenure in a band together.

(T Vol. 41, p 519) He also described how they enlisted in the Army and went to boot camp

together. (T Vol. 41, p 520)

The defense also presented the testimony of Stefanie Durham, the daughter of Constance

Wagner, with whom Hilton moved in, in 1981, when she was thirteen years of age. (T Vol. 41, p

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523-4) The lived together as a family for approximately two years. She described Hilton as the

ideal father figure, making sure her needs were attended to. (T Vol. 41, p 524-5)

An audio recording of an interview taken of Officer Steve King of the Duluth Police

Department on November 15, 2010 was presented to the jury. (T Vol. 41, p 529-30) He

described an incident, on February 25, 2006, during which he responded to a call of a suspicious

person and encountered Hilton. (T Vol. 41, p 532-4) He described Hilton as agitated and "a little

bit confused, like a little bit out of it." (T Vol. 41, p 534)

James Scott Gillespie was called on Hilton's behalf and testified that he, along with

approximately thirty others, were fishing in an area known as Cooper's Creek in Northern

Georgia in June, 2007. (T Vol. 41, p 540) He walked up onto Hilton, where he witnessed him

slumped over, rocking back and forth, sharpening a knife. He spoke to Hilton, but Hilton simply

muttered back to his dog. (T Vol. 41, p 541)

Mary Pat King testified that she worked as a law enforcement officer (T Vol. 41, p 549)

with the United Forest Service in November, 2007 when she saw Hilton walking his dog at 7:40

p.m. in the Apalachicola National Forest, which was unusual. (T Vol. 41, p 546-7) She stopped

and spoke with him for five to fifteen minutes. Hilton did not appreciate her contact and insisted

she was hassling him. He commented that he did not like the government and in general, acted

negative and hostile. (T Vol. 41, p 550) After her encounter, she made a notation in her log book

that she had contact with a "Signal20," which she defined as a crazy person. (T Vol. 41, p 547-

8)

A video-recorded interview, dated December 30, 2010, of Jin Hee Lee, the operator of a

laundromat in Cambridge, Georgia was played. Mr. Lee stated that Hilton had been a regular

customer of his laundromat for at least three or four years; he remembered him because of his

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dog. (T Vol. 41, p 555-7) In 2007, he noticed a physical change in Hilton, leading him to believe

Hilton had been drinking. (T Vol. 41, p 559) Hilton denied drinking. (T Vol. 41, p 559) He

explained Hilton's appearance and behavior was different than what he had experienced in the

years prior. (T Vol. 41, p 558)

Not only did trial counsel thoroughly investigate Hilton's early childhood development,

brain trauma, injury, cognitive impairment and mental health, they then provided that

information to four different mental health experts who used that information in evaluating

Hilton and subsequently testified at the penalty phase as to how those matters played a role in

their evaluations and findings/diagnoses.

In addition to the testimony presented by the four mental health experts, trial counsel also

admitted Hilton's military discharge records, as well as disciplinary records from the Georgia

State Board of Medical Examiners regarding the Ritalin and Effexor which were improperly

prescribed to Hilton by Dr. Deicher in the years preceding the murders. Trial counsel also

presented the testimony, either previously-recorded or live, of several lay witnesses, including

family members, persons who played an important role in Hilton's childhood, his junior high

girlfriend and high school band mate.

"To be entitled to an evidentiary hearing on a claim of ineffective assistance, the

defendant must allege specific facts that are not conclusively rebutted by the record and which

demonstrate a deficiency in performance that prejudiced the defendant." Roberts v. State, 568

So.2d 1255, 1259 (Fla.l990). As to this claim, the record is replete with the evidence counsel

argues is lacking.

Hilton has failed to establish that had more detailed evidence of Hilton's 1961 arrest for

shooting his step-father and subsequent time in foster care been offered during his penalty phase

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trial, there is a reasonable probability he would have received a different sentence and thus, his

claim fails the prejudice prong of Strickland.

The aggravating circumstances (Hilton was previously convicted of a violent felony -

given great weight; the murder was committed in the course of a kidnapping - given great

weight; the murder was committed to avoid arrest - given moderate weight; the murder was

especially heinous, atrocious, or cruel (HAC) - given great weight; and the murder was cold,

calculated, and premeditated (CCP) - given great weight) were so overwhelming that no

substantial prejudice resulted from the absence, at the penalty phase of, any additional evidence

of Hilton's early childhood development, brain trauma, injury, cognitive impairment and/or

mental health.

Thus, this claim should be summarily denied.

V. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE

DEFENDANT'S ACTUAL MENTAL HEALTH AILMENT AND DIAGNOSIS
AND PRESENT EVIDENCE DURING THE PENALTY PHASE RELATED TO
THE SPECIFIC DIAGNOSIS AND CONDITION

Counsel submits that Hilton was previously diagnosed with Multiple Sclerosis, but there

is no actual medical diagnosis to support this. Furthermore, two of the defense's own witnesses

testified at the penalty phase that Hilton diagnosed himself with Multiple Sclerosis for symptoms

he was experiencing that were actually related to depression. Specifically, Dr. Wu testified,

"Then he started to have episodes of extreme fatigue. And he thought that he had multiple

sclerosis. He tried to self-diagnose himself. ... And again, I think what was happening is that he

was starting to become more depressed in addition to having this kind of downward deteriorating

course of a schizo-affective patient." (T Vol. 38, p 126)

Dr. Golden testified similarly, stating, "He self-diagnosed himself with multiple sclerosis

thinking that the symptoms that I see as being depression were the symptoms of a neurological

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disorder. There is no evidence he has actually- neurologically has multiple sclerosis. But a

lot of the symptoms like he can't get out of bed, his legs feel leaded, he feels unable to move for

long periods of time, those are symptoms of severe depression." (T Vol. 39, p 191) (emphasis

added)

Trial counsel had Hilton evaluated by four mental health experts with extensive and

varying experience. It is doubtful that all four failed to diagnose Multiple Sclerosis and even

more, that two would specifically rule that diagnosis out. Simply stated, Multiple Sclerosis was

never diagnosed because it was not an ailment that Hilton was afflicted with and cannot now be

used as an argument for ineffective assistance.

Even if Hilton had multiple sclerosis, it did not impede his ability, at sixty-one years of

age, to kidnap, chain, torture, kill, decapitate and dismember Cheryl Dunlap and a few weeks

later, to kidnap, torture, kill and decapitate Meredith Emerson, nor did it impede his ability to put

thought into covering his tracks after each brutal murder and then to offer a self-serving, detailed

confession about his kidnapping and killing of Meredith in exchange for a life sentence from the

State of Georgia.

The four defense mental health experts testified on Hilton's behalf that he had been

afflicted with some sort of mental illness. The trial court accepted this testimony and gave it

some weight in finding one statutory mental mitigating factor- that at time of Dunlap's murder,

Hilton was under extreme emotional distress.

Lastly, Hilton's claim fails the prejudice prong of Strickland because he cannot establish

that had the evidence been offered during his penalty phase trial, there is a reasonable probability

he would have received a different sentence. Again, the aggravating circumstances (Hilton was

previously convicted of a violent felony - given great weight; the murder was committed in the

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course of a kidnapping - given great weight; the murder was committed to avoid arrest- given

moderate weight; the murder was especially heinous, atrocious, or cruel (HAC) - given great

weight; and the murder was cold, calculated, and premeditated (CCP)- given great weight) were

so overwhelming that no substantial prejudice resulted from the absence, at the penalty phase, of

any evidence of Hilton having multiple sclerosis.

This claim is meritless and as such, should be summarily denied.

VI. HILTON'S EXECUTION WOULD VIOLATE THE EIGHTH AMENDMENTn

A. EXECUTING THE MENTALLY ILL CONSTITUTES A VIOLATION OF

THE EIGHTH AMENDMENT'S PROHIBITION AGAINST CRUEL AND
UNUSUAL PUNISHMENT
Hilton contends that his execution would violate the Eighth Amendment because of his

mental illness, brain damage, bipolar disorder, anxiety disorder, depression and multiple

sclerosis at the time of the murder. Assuming that he was afflicted with all of these conditions,

Power v. State, 992 So.2d 218 (Fla. 2008) holds that those alleged diagnoses would not serve as

a bar to execution. "[N]either this Court nor the Supreme Court has recognized mental illness as

a per se bar to execution." !d. at 222; see Johnston v. State, 27 So .3d 11 (Fla. 2008) (finding that

Johnston's reliance on Roper v. Simmons, 543 U.S. 551 (2005) and Atkins v. Virginia, 536 U.S.

304 (2002) was misplaced when he was neither a minor nor one who was insane or mentally

retarded); Lawrence v. State, 969 So.2d 294, 300 (Fla. 2007) (rejecting proposition that the Equal

Protection Clause requires extension of Atkins to the mentally ill due to their reduced

culpability); Simmons v. State, 105 So.3d 475, 511 (Fla. 2012) (holding claims that defendants

with mental illness must be treated similarly to those with mental retardation due to reduced

12
In order to avoid any confusion on the part of the reader, this claim is consecutively numbered as VI, although
counsel numbered his as VII in his Amended Motion for Post Conviction Relief.

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culpability to be without merit). "Instead, mental illness can be considered as either a statutory

mental mitigating circumstance if it meets the definition (i.e., the crime was committed while the

defendant "was under the influence of extreme mental or emotional disturbance") or a

nonstatutory mitigating circumstance. Such mental mitigation is one of the factors to be

considered and weighed by the court in imposing a sentence." Power at 222. That was the case

here; as Hilton concedes in his own motion, the trial court was presented with "extensive

evidence of mental health issues, defect, injury and impairment." (Amd Motion, p. 32) The trial

court considered that evidence and found that Hilton was under extreme emotional distress at the

time of the murder; the trial court also gave some weight to the mitigating factor of Hilton's

childhood brain injury, but found that the factor that Hilton suffered from severe mental defects

was not proven. However, no evidence whatsoever was presented that he was mentally retarded.

The Florida Supreme Court, in deciding Spencer v. State, 691 So.2d 1062, 1064 (Fla.

1996), held that in reviewing proportionality, "we will not disturb the sentencing judge's

determination as to 'the relative weight to give to each established mitigator' where the ruling is

supported by competent, substantial evidence in the record." The Court also held that it will also

"affirm the weight given an aggravator if based on competent, substantial evidence." Blake v.

State, 972 So.2d 839, 846 (Fla. 2007). The Florida Supreme Court requires that the death

penalty be "reserved only for those cases where the most aggravating and least mitigating

circumstances exist." Terry v. State, 668 So.2d 954, 965 (Fla. 1996). This is the case here.

Should a detennination be reached that Hilton is incompetent to be executed at or near

the time of his execution, his execution would undoubtedly be stayed for further examination,

pursuant to F.S. § 922.07 (2014). See Ford v. Wainwright, 451 So.2d 471 (Fla. 1984) (finding

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that the statutory procedure is now the exclusive procedure for determining competency to be

executed). Thus, Hilton's claim may be best described presently as an unripe Ford claim.

Consequently, Hilton's claim should be summarily denied.

B. FLORIDA'S APPLICATION OF DEATH PENALTY IS ARBITRARY AND

CAPRICIOUS BECAUSE IT ALLOWS A SIMPLE MAJORITY OF THE
JURY TO RECOMMEND DEATH AND THE TRIAL JUDGE TO
DISREGARD A LIFE SENTENCE RECOMMENDATION

Hilton attacks Florida's capital sentencing statute, which authorizes a death sentence

recommendation by a bare majority vote and allows a trial judge to disregard a jury's life

sentence recommendation, as arbitrary and capricious. This claim should have been raised on

direct appeal. Since it was not, it is barred in a 3.851 proceeding. "Issues which either were or

could have been litigated at trial and upon direct appeal are not cognizable through collateral

attack." Farina v. State, 937 So.2d 612, 617 (Fla. 2006).

Additionally, Hilton's argument is inapplicable where he obtained what he requests, a

unanimous finding of death. Thus, Hilton has no standing to make this argument. See, e.g.,

Hollingsworth v. Perry, 133 S.Ct. 2652, 2662 (2013) ("To have standing, a litigant must seek

relief for an injury that affects him in a 'personal and individual way;"' quoting Defenders of

Wildlife, 504 U.S. 555,560 n. I (1992)); Lewis v. Casey, 518 U.S. 343,357 (1996) ("The remedy

must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has

established"); Rakas v. Illinois, 439 U.S. 128, 134, 139, 134 (1978) ("A person who is aggrieved

by an illegal search and seizure only through the introduction of damaging evidence secured by a

search of a third person's premises or property has not had any of his Fourth Amendment rights

infringed;" "the issue of standing involves two inquiries: first, whether the proponent of a

particular legal right has alleged 'injury in fact,' and, second, whether the proponent is asserting

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his own legal rights and interests rather than basing his claim for relief upon the rights of third

parties").

This claim is barred, meritless and as such, should be summarily denied.

CONCLUSION

The bottom line is that Hilton committed the brutal kidnapping, murder and

dismemberment of Cheryl Dunlap. The evidence of guilt was overwhelming. Witnesses were

able to put Hilton near the scene of the crime. Dunlap's DNA was found in Hilton's van. And

Hilton confessed to a fellow inmate. At the penalty phase, the jury was presented with evidence

of an almost identical kidnapping, murder and dismemberment which occurred less than a month

after this murder, to which he pled guilty. "When a defendant challenges a death sentence ... the

question is whether there is a reasonable probability that, absent the errors, the sentencer ...

would have concluded that the balance of aggravating and mitigating circumstances did not

warrant death. Strickland at 695. "A court making the prejudice inquiry must ask ifthe defendant

has met the burden of showing that the decision reached would reasonably likely have been

different absent the errors." !d. at 696. The record affirmatively demonstrates beyond a doubt

that even if trial counsel had committed each of the errors complained of in the Amended Motion

for Post-Conviction Relief, there is no chance that the outcome would have been different. The

fact is that the evidence of guilt, as well as the aggravating circumstances proved in this case

were completely overwhelming. The State respectfully requests that this Honorable Court deny

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 the motion.

Respectfully submitted

PAMELA JO BONDI
ATTORNEY GENERAL

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0011943
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3 300
primary email:
capapp@myfloridalegal.com
secondary email:
carine.emplit@myfloridalegal.com

CO-COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Answer to Amended
Motion for Post-Conviction Relief has been furnished via the e-portal to Robert A. Morris,
Esquire, 911 East Park Avenue, Tallahassee, FL 32301 this 14'h day of August, 20I5.

Isf 'W"""'"' 2: $o/y'.kt·

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
Attorney for the State

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Filing# 31238576 E~Filed 08/2-.,2015 03:48:38 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

vs.
CASE NO. 2008-CF-697A

D!YTSTON: FELONY
GARY HILTON,
DEATH PENALTY
Defendant.

ORDER GRANTING UNOPPOSED MOTION FOR CONTINUANCE

THIS CAUSE, came before the Court upon the Defendant's Unopposed Motion for

Continuance pursuant to Fla. R. Crim. P. 3.85 1. This Court having reviewed the Motion, heard

arguments of counsel, and be otherwise fully advised in the premises, hereby m.akes the toll owing
findings:

IT IS HEREBY ORllEREJ) ANI) ADJUDGED as fbllows:

I. The Defendant's Motion is GRANTED. The death of defense expert witness, Dr.

Barry McClaren, just prior to hearing is an extraordinary and unusual circumstance. It

would be a manifest injustice to detw the Defense's requested contin.uance.

2. The evidentiary hearing scheduled September 8'h and 9'11, 2015 is cancelled and shall

be continued to the Court's hearing docket on January J9'h - 21 ", 2016.

3. Counsel for the Defendant shall provide an amended witness list and exhibit list to the

State within thirty (30) days from August 13, 2015.

4. The State shall furnish a witness list and exhibit list to the Defe11dant within thirty (30)

days of receipt of the Defendant's witness and exhibit list.

423
 5. The Defendant and State shall confer and set this matter for an intervening ca.~e

management conference in late October in order to address any issues outstanding at

that time. Defense counsel shall be responsible for coordinating said hearing.

OONE AND ORDERED in Chambers, Tallahassee, Leon County, Florida on this

. ' 1 -\- I..A.
>~·-~lvday of August, 2015. (Nunc pro tun(Alf~ 13. 4015) / i '

\ . (_Jjl. () '
'
'/·:>¥:?~~ .. . .~ . ~
./J Q~··~
1
JAMES C. HANKINSON
\,_JIRCUIT JUDGE

COPIES FURNISHED TO:

ROBERT A. MORRIS, ESQUIRE

Attorney for Defendant

GEORGIA CAPPLEMAN,. ESQUIRE

Assistant State Attorney

CARINE EMPLIT
Assistant Attorney General

424
Filing# 31238576 E-Filed 08/2..,,2015 03:48:38 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL cm.CUIT
IN AND FOR LEON COUNTY, FL

STATE OF FLORII)A,
CASE NO.: 2008CF697A

vs. DIV.: FELONY

DEATH PENALTY
GARY MICHAEL HILTON,
Defendant.

ORDER AUTHORIZING THE DEFENSE TO

INCUR COSTS FOR FORENSIC l'SYCHOLOGIST

Tl-flS CAUSE came before the Court upon the Motion to Incur Costs for Forensic

Psychologist and/or Motion to Declare §27.711, Florida Statutes Unconstitutional as Confiscatory

in the above cause. This Coutt having reviewed the Motion, the response of the Justice

Administrative Commission, having heard the arguments of counsel and being otherwise fully

informed in the premises, hereby makes the following findings:

!. The Defendant's Motion is GRANTED and the defense is authorized to retain

forensic psychologist Dr. T~rencc Leland and may incur up to $7,500.00 for his

services at the rate established by law.

2. This Order is entered without prejudice for the Defendant to reapply for additional

funds should the funds authorized herein be insufficient. However, such

authorization is not predetermined and will be subject to the standards set forth in

Fla. R. Crim. P. 3.851.

425
 3. The defense and forensic psychologist must comply with all policies and

procedures of the Justice Administrative Commission related to the submission of

billings for direct payment to a due process vendor.

DONE AND ORDERED in Tallahassee, Leon.County on this).}-{ 4-~ ofAugust,

2015.

Copies:

ROBERT A. MORRIS, ESQ

Attorney for Defendant

GEORGIA CAPPLEMAN
Assistant State Attorney

CARINE EMPUT
Assistant Attorney General

BRADLEY R. BISCHOFF
Justice Administrative Commission

426
Filing# 32014306 E-Filed 09/l4iL015 02:35:19 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,·

vs. CASE NO: 2008-CF-697A

DIVISION: FELONY
DEATHPENALTY.
GARY MICHAEL HILTON,

DEFENDANT.
--------------------~~

DEFENDANT'S 1'1 AMENDED WITNESS LIST

COMES NOW, the undersigned attorney, and files this Defendant's Witness List

·on behalf of GARY MICHAEL HILTON, the Defendant in the above-styled cause,

pursuant to Fla. R. Crim. P. 3.851(f)(5)(A).

NON-EXPERT WITNESSES

1. Gary Michael Hilton

7819 N.E. 228th Street
Raiford, Florida
32026-4000

2. Paula Saunders
Leon. County Courthouse
301 S. Monroe Street
Suite 401
Tallahassee, FL 32301

3. Rob Friedman
175 Salem Court
Tallahassee, FL 32301

427
4. Merribeth Bohanan
Dept. of Financial Services
200 E. Gaines
Tallahassee, Florida 32301

5. Nancy Daniels
Leon County Courthouse
301 S. Monroe Street
Suite 401
Tallahassee, FL 32301

6. Betty Fuentes
(850) 509-2739

7. Andy Thomas
Leon County Courthouse
301 S. Monroe Street
Suite 401
Tallahassee, FL 32301

8. Steven Been
Leon County Courthouse
301 S. Monroe Street
Suite 401
Tallahassee, FL 32301

9. Ines Suber
Leon County Courthouse
301 S. Monroe Street
Suite 401
Tallahassee, FL 32301

10. Tracy Record

2919 Southwest Moody Terrace
Port Saint Lucie, FL 34953

11. Chris Ellrich

Leon County Courthouse
301 S. Monroe Street
Suite 401
Tallahassee, FL 32301

428
 12. Clyde Taylor, Esq.
2303 North Ponce De Leon Boulevard
SuiteL
St. Augustine, FL 32084

13. Kim Stevens, Esq.

Anderson Pangia & Associates, PLLC
2615 Sparkling Place
Winston-Salem, NC 27103

14. Monica Jordan

909 E. Park A venue
Tallahassee, Florida 32301

15. Names and Addresses of those individuals contained in the Key Mitigation
Witnesses File developed by Betty Fuentes

16. The Honorable John Tomasino ·

Supreme Court of Florida
500 South Duval Street
Tallahassee, Florida
32399-1927

EXPERT WITNESSES

17. Dr. Terrance Leland

1235 Miccosukee Rd
Tallahassee, FL 32308~5007

18. Dr. Joseph Woo

291 CampusDrive
Li Ka Shing Building
Stanford, CA 94305-5101

19. Clyde Taylor

2303 North Ponce De Leon Boulevard
Suite L
St. Augustine, FL 32084

20. Kim Stevens

Anderson Pangia & Associates, PLLC
2615 Sparkling Place
Winston-Salem, NC 27103

429
 ORRI , ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
Attorney for Defendant
COURT APPOINTED

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by Electronic

mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County Courthouse, 3'd Floor,

301 S. Monroe· Street, Tallahassee, Florida 32301, Deputy Chief State Attorney Georgia

Cappleman SA02 LeonFelony@leoncountyfl.gov State Attorney's Office, Leon County

Courthouse, 4"' Floor, 301 S. Monroe Street, Tallahassee, FL, and Capital Appeals Bureau, Office

of the Attorney General, PL-01 The Capitol, Tallahassee, Florida 323 1050 on this 14"' day of

September, 2015.

ROBERT A. MORRIS, ESQUIRE

430
Filing# 33550030 E-Filed 10/22/2015 11:25:40 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008·CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.
GARY MICHAEL HILTON,

Defendant.
------------------~'
ORDER FOLLOWING CASE MANAGEMENT CONFERENCE

On October 21, 2015, this Court conducted a CIISe Management Conference at which

the following parties were present: Chief Assistant State Attorney Georgia Cappleman;

Assistant State Attorney Eddie Evans; Assistant Attorney General Carine Emplit; and

Attorney for Defendant, Robert A. Morris, Esq.

At the case management conference, this Court heard argument as to whether claims

VII(A) and VII(B) raised in Defendant's Amended Motion for Post-Conviction Relief

require a factual determination at an evidentiary hearing, pursuant to Florida Rule of

Criminal Procedure 3.851(f)(5)(A).

The Court and parties also discussed discovery obligations related to the Defendant's

expert witnesses.

It is hereby ORDERED that Claim VII(B) is denied as being a purely legal claim,

requiring no factual development.

This Court reserves ruling on Claim VII(A) and orders the parties to coordinate a hearing

for further argument as to whether this claim is ripe.

431
 It is hereby ORDERED that the Defendant shall file his experts' reports by December I,

2015.
...... "\ II'- J2.
__ day of October, 2015 in Tallahassee, Leon County,
DONE AND ORDERED thisU..

Florida.

cc:

Carine L. Emplit, Assistant Attorney General

Office of the Attorney General
The Capitol, PL-0 1
Tallaha5see, FL 32399-1050

Georgia Cappleman, Chief Assistant State Attorney

Office of the State Attorney
30 I South Momoe Street, Suite 475
Tallahassee, FL 3230 I

Eddie Evans, Assistant State Attorney

Office of the State Attorney
301 South Monroe Street, Suite 475
Tallahassee,. FL 32301

Robert A. Morris, Esquire, Attorney for Defendant

911 East Park Avenue
Tallahassee, FL 32230 I

432
Filing# 34358570 E-Filed 11/12/2015 10:56:31 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.

GARY MICHAEL HILTON,

Defendant.
--------~/
MEMORANDUM REGARDING CLAIM Vll(A) OF DEFENDANT'S AMENDED
MOTION FOR POST-CONVICTION RELIEF

COMES NOW, the State of Florida, by and through the undersigned counsel, and hereby

files this Memorandum setting forth its position that Claim VII(A) of Defendant's Amended

Motion for Post-Conviction Relief is a purely legal claim, which requires no factual development

at the upcoming evidentiary hearing, consistent with Fla. R. Crim. P. 3.851(f)(5)(A)(ii). Hilton is

presently eligible for execution because he is not intellectually disabled, nor is he a juvenile. This

is an unripe claim, under controlling Florida Supreme Court precedent. Hilton cannot allege that

the bar to execution is applicable well before the Governor has signed a death warrant. In short,

Hilton does not suffer from the necessary disability or fit the age requirement to be exempt from

execution and his allegation that he may be insane at the time of execution is unripe for this

Court's review. In support of the State's position that Claim VII( A) is a purely legal claim which

is unripe and which does not require factual development, the undersigned submits the

following:

433
 A. CLAIM VII( A) IS UNRIPE FOR REVIEW

At best, this claim can be described as an unripe Ford1 claim. As indicated by Florida Statute

§ 922.07(1) (2015), "(w]hen the Governor is informed that a person under sentence of death may

be insane, the Governor shall stay the execution of the sentence and appoint a commission of

three psychiatrists to examine the convicted person."2 See also Ford v. Wainwright, 451 So.2d

471 (Fla. 1984) (finding that the statutory procedure is now the exclusive procedure for

determining competency to be executed)

In Goode v. Wainwright, 448 So.2d 999 (Fla. 1984), the Florida Supreme Court addressed

this issue, agreed "that an insane person cannot be executed," and held that F.S. § 922.07 sets

forth "the procedure to be followed when a person under sentence of death appears to be insane.

The execution of capital punishment is an executive function and the legislature was authorized

to prescribe the procedure to be followed by the governor in the event someone claims to be

insane." Thus, in Goode the Florida Supreme Court held that under F.S. § 922.07 the governor

can make the determination; Goode does not stand for the proposition that the issue of sanity to

be executed can be raised independently in the state judicial system.

The Florida Supreme Court has declined to address unripe claims and summarily denied

relief. See Morris v. State, 931 So.2d 821, 93 7 n.l5 (Fla. 2006) (denying relief on Morris's fifth

habeas claim alleging that his Eighth Amendment rights would be violated because he may be

incompetent at the time of execution, and finding that the claim was not ripe for review as no

death warrant had been signed); Rogers v. State, 957 So.2d 538, 556 (Fla. 2007) (finding that

1
Fordv. Wainwright, 477 U.S. 399 (1986).
2
See also Florida Rules of Criminal Procedure 3.81 I -3.812, which address insanity of the Defendant at the time of
execution. In fact, F. R. Crim. P. 3.81 J(c) provides, [n]o motion for a stay of execution pending hearing, based on
grounds of the prisoner's insanity to be executed, shall be entertained by any court until such time as the Governor
of Florida shall have held appropriate proceedings for determining the issue pursuant to the appropriate Florida
Statutes." (emphasis added)

434
Rogers' claim, which asserted that his Eighth Amendment rights would be violated because he

may be incompetent at the time of execution, was not ripe for review until a death warrant was

issued); Floyd v. State, 18 So.3d 432, 459 (Fla. 2009) (holding that no relief was warranted on

Floyd's claim that he suffered impaired mental health since childhood and as such, his Eighth

Amendment right against cruel and unusual punishment would be violated because he may be

incompetent at the time of his eventual execution); Sireci v. State, 825 So.2d 882 (Fla. 2002)

(determining that claim that defendant's execution would violate the prohibition of cruel and

unusual punishment contained in the Eighth Amendment because he may be incompetent at the

time his sentence is carried out was certainly not ripe for review).

Hilton may avail himself of the F.S. § 922.07(1) and Fla. R. Crim. P. 3.851 procedures

when a death warrant is signed; not now. Ferguson v. State, 112 So.3d 1154 (Fla. 2012)

(Ferguson invoked both post-conviction procedures and F.S. § 922.07 at the time the death

warrant was signed). In this case, it is unknown when Hilton will be executed. Thus, any factual

evidence he seeks to present at the upcoming evidentiary hearing on this claim would be

fruitless. The dispositive issue is whether Hilton is insane at the time the Governor signs the

death warrant, not what his mental state is now. Consequently, this claim is unripe for review by

this Court and should be denied without an evidentiary hearing.

B. CLAIM VII(A) IS A PURELY LEGAL CLAIM, REQUIRING NO FACTUAL

DEVELOPMENT

In his Amended Motion for Post-Conviction Relief, Hilton avers that executing the mentally

ill constitutes a violation of the Eighth Amendment's prohibition against cruel and unusual

punishment. He relies on his alleged diagnoses of mental illness, brain damage, bipolar disorder,

anxiety disorder, depression, and multiple sclerosis at the time of the offense as a bar to his

435
execution.' (Amd. Mot. at p. 29) Hilton, in advancing his argument, attempts to draw similarities

between his conditions and those who are ineligible for execution, such as those who are

intellectually disabled or juveniles.

While legal insanity is a per se bar to execution, neither the Florida Supreme Court, nor the

United States Supreme Court has recognized mental illness as a per se bar to execution, under

Ford. Power v. State, 992 So.2d 218,222 (Fla. 2008) (citing Diaz v. State, 945 So.2d 1136 (Fla.

2006)); see Ripkowski v. Thaler, 438 Fed.Appx. 296, 303 (5th Cir. 2011) ("The Supreme Court

has never held that mental illness removes a defendant from the class of persons who are

constitutionally eligible for a death sentence."); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006)

(finding that Atkins did not exempt mentally ill inmates from execution); In re Woods, 155

Fed.Appx. 132, 136 (5th Cir. 2005) (declining to grant a successive habeas petition to consider

the defendant's alleged mental illness because the constitutional rule created in Atkins did not

cover mental illness); Simmons v. State, 105 So.3d 475, 511 (Fla. 2012) (holding claims that

defendants with mental illness must be treated similarly to those with mental retardation due to

reduced culpability to be without merit); Barwick v. State, 88 So.3d 85, 106 (Fla. 20!1)

(rejecting on the merits "the argument that Roper extends beyond the Supreme Court's

pronouncement that the execution of an individual who was younger than eighteen at the time of

the murder violates the eighth amendment"); Johnston v. State, 27 So .3d II (Fla. 20 I 0) (finding

that Johnston's reliance on Roper v. Simmons, 543 U.S. 551 (2005) and Atkins v. Virginia, 536

U.S. 304 (2002) was misplaced when he was neither a minor nor one who was insane or

mentally retarded); Lawrence v. State, 969 So.2d 294, 300 (Fla. 2007) (rejecting proposition that

the Equal Protection Clause requires extension of Atkins to the mentally ill due to their reduced

3
Hilton has not made an argument that his execution would be unconstitutional on other grounds, such as the
midazolam claim recently raised by Jerry William Correll and rejected by the Florida Supreme Court in October,
2015. (SCIS-147). His claim is confined to his mental illness being the equivalent of an intellectual disability.

436
culpability). "Instead, mental illness can be considered as either a statutory mental mitigating

circumstance if it meets the definition (i.e., the crime was committed while the defendant "was

under the influence of extreme mental or emotional disturbance") or a nonstatutory mitigating

circumstance. Such mental mitigation is one of the factors to be considered and weighed by the

court in imposing a sentence." Power, 992 So.2d at 222. The Florida Supreme Court has

repeatedly rejected attempts to extend Atkins beyond intellectual disabilities. Frances v. State,

143 So.3d 340 (Fla. 2014) (noting "this Court has previously rejected defendants' attempts to

extend Atkins to mental impairments that are not mental retardation," citing Henyard v. State,

992 So.2d 120 (Fla. 2008)); Schoenwetter v. State, 46 So.3d 535, 563 (Fla. 201 0) (same). The

Florida Supreme Court has held on several occasions that other mental defects are not entitled to

the same consideration as mental retardation. See, e.g., Reese v. State, 14 So.3d 913, 920 (Fla.

2009) (rejecting Atkins claim where postconviction testimony indicated that the defendant was

under a "severe emotional disturbance" at the time of the offense); Connor v. State, 979 So.2d

852, 867 (Fla. 2007) (rejecting claim where the defendant suffered from mental and

psychological disorders such as organic brain damage, frontal lobe damage, micrographia, and

stuttering, on grounds that these conditions were different from mental retardation); Lawrence v.

State, 969 So.2d 294, 300 n. 9 (Fla. 2007) (declining to extend Atkins to the mentally ill).

Because Hilton is not intellectually disabled, or a juvenile, the bar he seeks on his execution

is inapplicable; this claim should be denied without an evidentiary hearing.

C. CONCLUSION

Claim VII(A) should be denied without an evidentiary hearing because it is a purely legal

claim which is also unripe for review, for which no factual development can be made at the

present time. No witness can testifY, nor is there any evidence that can be presented, to prove that

437
Hilton will be incompetent at the time of execution, a time which remains unknown to all parties

involved in this matter. The proper time for bringing forth this allegation, should Hilton actually

be incompetent at the time of execution, is when the death warrant is signed.

The State respectfully requests this Honorable Court deny Claim VII(A) for the

aforementioned reasons.

Respectfully submitted

PAMELA JO BONDI
ATTORNEY GENERAL

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 001 I943
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3300
primary email:
capapp@myfloridalegal.com
secondary email:
carine.emplit@myfloridalegal.com

CO-COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Memorandum
Regarding Claim VII(A) of Defendant's Amended Motion for Post-Conviction Relief has been
furnished via the e-portal to Georgia Cappleman, Chief Assistant State Attorney,
cappelmang@leoncountyfl.gov; Eddie Evans, Assistant State Attorney,
eevans@1eoncountyfl.gov; Robert A. Morris, Esquire, alex@ramlawyer.com, this 12th day of
November, 2015.

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
Attorney for the State

cc: Honorable James C. Hankinson, Circuit Judge

6

438
Filing# 34555073 E-Filed 11/17/2015 02:56:35 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.
GARY MICHAEL HILTON,

Defendant.
I

ORDERFOLLO~GCASEMANAGEMENTCONFERENCE

On November 17, 2015, this Court conducted a Case Management Conference at

which the following parties were present: Chief Assistant State Attorney Georgia

Cappleman; Assistant State Attorney Eddie Evans; Assistant Attorney General Carine

Emplit; and Attorney for Defendant, Robert A. Morris, Esq.

At the case management conference, the Defendant conceded to dismissal of Count

VII(A) raised in his Amended Motion for Post-Conviction Relief, as the claim is a purely

legal one, which is not ripe to assert at this time.

Should Defendant be found incompetent after the Governor has signed the death

warrant, Defendant may then avail himself of the protections provided in F.S. § 922.07 and

Fla. R. Crim. P. 3.811 • 3.812.

It is hereby ORDERED that Claim. VII(A) is denied as being a purely legal claim,

requiring no factual development, and which is presently unripe for review.

This Order is a non.fmal order.

439
 l -+LA
DONE AND ORDERED this ""t day of November, 2015 in Tallahassee, Leon County,

Florida.

S C. HANKINSON
cuitJudge
cc:

Carine L. Emplit, Assistant Attorney General

Office of the Attorney General
The Capitol, PL-01
Tallahassee, FL 32399-1050

Georgia Cappleman, Chief Assistant State Attorney

Office of the State Attorney
301 South Monroe Street, Suite 475
Tallahassee, FL 32301

Eddie Evans, Assistant State Attorney

Office of the State Attorney
301 South Monroe Street, Suite 4 75
Tallahassee, FL 32301

Robert A. Morris, Esquire, Attorney for Defendant

911 East Park Avenue
Tallahassee, FL 322301

440
Filing# 35146818 E-Filed 12/04/2015 08:26:15 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.

GARY MICHAEL HILTON,

Defendant.
I

STATE'S MOTION TO COMPEL DEFENSE EXPERT REPORTS

COMES NOW, the State of Florida, by and through the undersigned attorney, and files

this motion to compel defense expert reports:

I. In these postconviction proceedings, Defendant raises numerous issues aimed at both

the guilt and penalty phases of his capital trial.

2. An evidentiary has been scheduled for January 19-21,2016.

3. Defendant filed his initial Witness List on April23, 2015, listing five expert
witnesses.

4. Thereafter, Defendant filed his first Amended Witness List on September 14,2015,
listing four expert witnesses.

5. Fla. R. Crim. P. 3.85l(f)(5)(A) requires the Defendant to provide copies of his

experts' reports to the State. 1

1
Fla. R. Crim. P. 3.85!(f)(5)(A) provides that at the case management conference, the
defendant shall disclose all docwnentary exhibits that he intends to offer at the evidentiary
hearing and shall file and serve an exhibit list of all such exhibits and a witness list with the
names and addresses of any potential witnesses. "All expert witnesses shall be specifically
designated on the witness list and copies of all expert reports shall be attached." Further, Fla.
R. Crim. P. 3.85!(f)(6) provides "[a]ll expert witnesses who will testify at the evidentiary
hearing must submit written reports, which shall be disclosed to opposing counsel as
provided in subdivision (f)(5)(A)."

441
 6. In addition to the Rule, this Court entered an Order on October 22, 2015, which
specifically required the Defendant to file his experts' reports by December I, 2015.

7. No expert reports have been provided to the State as of the date of the filing of this
Motion.

8. The Leon County Clerk's docket online does not reflect any additional disclosure
filings by the defense.

9. As of the date of the filing of this motion, the State is without the experts' reports,
and consequently, the State is hampered in its ability to prepare for the evidentiary
hearing, which is scheduled for next month. Additionally, the defendant will suffer no
prejudice is providing copies of records he is required and has been ordered to
provide.

BASED ON THE FOREGOING, the State respectfully requests this Court compel

disclosure of the defense's expert reports to the State.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Compel
Defense Expert Reports has been furnished via the e-portal to Robert A. Morris, Esquire;
Georgia Cappleman, Chief State Attorney; and Eddie Evans, Assistant State Attorney this 4th
day of December, 2015.
PAMELA JO BONDI
ATTORNEY GENERAL

CARINE L. EMPLIT
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0011943
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3580
primary email:
carine.emplit@myfloridalegal.com
secondary email:
capapp@m yfl oridalegal. com
CO-COUNSEL FOR THE STATE

442
Filing# 35246907 E-Filed 12/07/2015 04:31:00 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

v.
GARY MICHAEL HILTON,

Defendant.
----------------~'
ORDER COMPELLING DEFENSE EXPERT REPORTS

THIS CAUSE came before the Court upon the State's Motion to Compel Defense

Expert Reports. The Court having considered said motion and being otherwise fully advised in

the premises, hereby makes the following fmdings:

Fla. R. Crim. P. 3.851(f)(SXA) requires the defendant to file and serve a witness list with

the names and addresses of any potential expert witnesses, and to attach copies of all expert

reports to the witness list.

This Court entered an Order Following Case Management Conference on October 22,

2015 requiring the Defendant to file his expert reports by December I, 2015.

The Defendant has failed to comply with both the Rule and Order.

It is hereby ORDERED that the Defendant shall file his experts' reports within five (5)

days of this Order. -tk

DONE AND ORDERED thisL day of December, 2015 in Tallahassee, Leon County,

443
 Florida.

cc:

Carine L. Emplit, Assistant Attorney General

Office of the Attorney General
The Capitol, PL-0 I
Tallahassee, FL 32399-1050

Georgia Cappleman, Chief Assistant State Attorney

Office of the State Attorney
301 South Momoe Street, Suite 475
Tallahassee, FL 3230 I

Eddie Evans, Assistant State Attorney

Office of the State Attorney
301 South Monroe Street, Suite 475
Tallahassee, FL 32301

Robert A. Morris, Esquire, Attorney for Defendant

911 East Park Avenue
Tallahassee, FL 322301

444
j

Filing# 36472231 E-Filed 01112/2016 04:02:49 PM

IN THE CmCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF-697A

vs. DIV.: FELONY

GARY MICHAEL IDLTON, DEATH PENALTY

Defendant.

MOTION TO CONTINUE EVIDENTIARY HEARING, MOTION FOR REHEARING

AND MOTION FOR BRillFING SCHEDULE

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, pursuant to Rule 3.851(f)(5)(C), Florida Rules of CriniinalProcedure and moves this

Court to continue the evidentiary hearing presently scheduled in this matter and in support

thereof states as follows:

1. The Defendant is indigent and the undersigned was appointed by the Courl to

represent the Defendant in this capital collateral post-conviction proceeding.

2. An evidentiary hearing is presently set for January 19,2016- January 21, 2016. The

hearing has been set for several months as a result of a prior unopposed defense

motion to continue the previously scheduled hearing. 1

3. Rule 3.851(f)(5)(C), Florida Rules of Criminal Procedure provides that "The trial

court also rnay for good cause extend the time for holding an evidentiary hearing up

1 The prior motion to continue was made as a resUlt of the untimely death of Dr. Hany McClaren who had served as

an expert consultant for the defense trial team and who was assisting the defense in this post-conviction proceeding.

445
 to 90 days." The rule of procedure is silent as to whether this means it can happen on

one occasion, on one occasion·for each party, on repeated occasions for each party,

etc ... The undersigned is mindful of the "Timely Justice Act of 2013" which, in

conjunction with the well-reasoned advice of the Capital Post-Conviction

Subcommittee of the Criminal Court Steering Committee, has sought to curtail

unnecessary delays in the judicial process in post-conviction matters. However, the

undersigned is unclear on the latitude or extent of the rule.

4. In the prior motion to continue, counsel mentioned concern regarding the constrictive

nature of continuances in light of the necessity of a new mental health/forensic

psychologist gathering the requisite information to render opinions necessary in each

of the categories.

5. Dr. Terence Leland, Ph.D. was authorized to assist the defense as an expert in

forensic psychology. Since that point in time, Dr. Leland has diligently prepared in

the capacity requested. To that end, )le has been provided access to some sixty four

gigabytes (64GB) of documents and data. He has interviewed numerous material

witnesses. He has also scoured numerous paper records. However, Dr~ Leland has

advised that he requires an additional two to three (2-3) months to be adequately

prepared to render opinions in each of the facets the defense anticipates testimony.

6. The defense seeks a ninety (90) day continuance for the foregoing reason. The

defense asserts that the defense's necessary reliance on Dr. Leland's opinion

testimony and his inability

. to formulate opinions in all .of the necessary categories

within the restrictive time parameters is good cause to continue the evidentiary

hearing. The defense would also assert that it would be a manifest injustice to

446
 preclude the defense from adequate preparation. Attached hereto is Exhibit A which

is an inventory of the length of audio and video items as well as the number of pages

of items in written format. .The sheer. volume of the data contained in each of these

files and sub-folders is massive. This does not take into account the data that was

provided by the State and utilized by Dr. Pritchard and the State during the penalty

phase of the trial. 2 Likewise, it does not take into account some 120 banker's boxes

'
i·
provided by the Office of the Public Defender. Finally, it does not take into account

the time necessary to conduct interviews with collateral sources and witnesses. Dr.

Leland's memorandum is attached hereto as Exhibit B denoting the aforementioned

facts.

7. The defense also seeks a continuance in light of the opinion handed down by the

. United States Supreme Court on today's date in Hurst v. Florida, No. 14-7505.

8. This Court entered a non-final order on October 22, 2015 denying Claim VII(B) as a

· purely legal claim. Claim VII(B) can best be characterized as a "Ring claim." The

Court articulated at. the hearing that the status of the law required the denial of the

claim and also mentioned the small likelihood of the United States Supreme Court

rendering an opinion within the time parameters of the instant case.

9. The United States Supreme Court has now rendered an opinion in Hurst that impacts

this Court's prior ruling. There are legal issues that remain to be resolved by the .

Florida Supreme Court in the wake of the Hurst opinion. The defense requests a

rehearing on the October 22, 2015 non-final order denying Claim VII(B) in light of

2 The State has provided a CD through public records requests that purports to provide all of the mental health
records that they were in possession of and reliant Upon and that were provided to Dr. Pritchard in advance of his
testimony during the penalty phase.

447
 the Hurst opinion. The defense does not seek to protract the proceedings and requests

a briefing schedule for the defense and the State; The defense requests twenty (20)

days within which to submit their memorandum to the Court on rehearing and matters

attendant thereto. The defense would suggest fifteen (15) days within which the State

may respond and five (5) days within which the defense may reply.

10. The undersigned has conferred with Deputy State Attorney Georgia Cappleman and

Assistant State Attorney Eddie Evans by conference call and they oppose a

continuance in this matter.

11. While the rule of procedUre does not require a verification of counsel, the

undersigned certifies that this Motion is filed in good faith and not solely for the

purposes of delayas required by Rule 3.190(f)(4), Florida Rules of Criminal

Procedure.

12. The undersigned would respectfully request that this matter be called on for hearing

to determine if relief is to be granted. 1n the event relief is granted, it will afford the

parties the opportunity discuss and confirm dates certain. The undersigned will

advise the Court that he is presently scheduled to be before The Honorable Robert L.

Hinkle in United States v. Terry Mize, 5: 15cr25-RH in the Panama City Division of

the United States District Court for the Northern District of Florida for a sentencing in

a multi-co-defendant methamphetamine conspiracy at 11:15am on Thursday, January

14,2016. The undersigned is certainly mindful of the priority that this case takes as a

Death Penalty case. It is only mentioned because the undersigned will likely need

some accommodation amongst the presiding judges if called on for hearing at a

conflicting time.

448
 WHEREFORE the Defendant requests the entry of an order granting a continuance of

the evidentiary hearing as well as granting reconsideration of the issue previously denied in the

non-final order entered on October 22, 2015 Claim VII(B) and providing a briefing schedule as

outlined above or in some other fashion as the Court may deem just and proper.

Respectfully submitted,

~~-~
RbBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue.
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex @ramlawyer.com

449
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge; Leon County

Courthouse, 3rd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant General

Counsel Bradley Bischoff, Justice Administrative Commission, pleadings@justiceadmin.org.

Deputy Chief State Attorney Georgia Cappleman, SA02 LeonFelony@ Jeoncountyf!.gov, State

Attorney's Office, Leon County Courthouse, 4th Floor, 301 S. MomoeStreet, Tallahassee, FL,

and Carine Emplit, carine.emplit@myfloridalegal.com, Capital Appeals Bureau, Office of the

Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 12th day of

January, 2016.

@)~~
ROBERT A. MORRIS, ESQUIRE

450
 ELECTRONIC DISCOVERY ORGANIZED
CASE NO: 2008-CF-697 DEFENDANT: GARY MICHAEL HILTON

. Length/Pages

1. A. Gary Hilton Documents for Experts Empty

a. Cleo Dabag- Hilton's Mother
b. Deicher
c. Experts -Documents provided by FL Defense Team
d. Gary Hilton Medical Records- Correctional Facilities
e. Gary Hilton Transcripts- Statements to Law Enforcement
f. Gary Hilton Writings & Evidence from ''The Cave"
g. Hilton Mise Records - Schools
h. Interviews
i. John Tabor Statement
J. Records - Records Summaries
k. Trial- Penalty Phase
I. Walter Goddard Statements
2. A- Gary Hilton Home Movies
a. 26-6 Dates 4/14/05-06/03/05 0.1
b. #4 26-1 Dates 4/15/06 1.0
c. #5 26-2 Dates 9/24/05-4/10/06 0.7
d. #6 26-3 Dates 6/4/05-8/24/05 1.0
e. #7 26-4 Dates 5/3/05/6/2/05 1.0
f. #8 26-5 Dates 4/14/05-6/3/05 0.9
g. #9 26-6 Dates 3/15/05-4/13/05 1.0
h. #22 26-7 1.0
i. Home Movie Synopsis 0.9
3. Compiled Expert Files
a. Ex Byrd, Jason Dr. 118
b. Ex Gill.-King Center Human Ident. 170
c. Ex Golden Charles 62
d. Ex McClaren Harry Dr 125
e. Ex Mise Consulting Experts 182
f. Ex Strauss, Abbey 327
g. Ex Wu, Joseph 70
h. Ex Wu, Joseph (2) 193
i. Ex Morton W Dr · '!,296
j. Ex Sesta, Joseph Dr. 313
4. Compiled Index Files 1,916
5. Compiled Transcripts_Hilton 1,446
6. Compiled Witness Files
a. WI Dabag Materials 386
b. WI Deicher 910
c. WI Easter Wood Celeste 7
d. WI Edwards Sue 24
e. WI Ferguson George 55
f. WI Goddard Walter 165
g. WI Hartsfield Opal 209

451
 h. WI Hilton William 2
i. WI Kulish & Bennett 162
j. WI McKinney, Robyn 303
k. WI Nilo Dabag 52
I. WI Rae!, Samuel 63
m. WI Reynolds Don 84
n. WI Rowe Vikki 32
o. WI Stewart Shawn 87
p.. WI Tabor John 476
q. Witness List Subpoenas 327
r. McKinney Robyn 3
7. DTG Key Mitigation Witness
a. 1 Life History 140
b. 2Family 32
c. 3 Mental Health History 32
d. 4 Mental Health Time of Crime 20
e. 5 Mental Health Post Arrest 18
f. Hilton Mitigation Witness 47
g. Hilton Mitigation Witness (2) 5
8. Florida Discovery Mise 3
9. Florida Trial Mise 3
10. FPD1 Indexes & Summaries 456
1.1. FPD2 Lists 2,266
a. Hilton - Various Witness Lisis 93
b. Hilton Former Addresses 94
c. Mitigation Witness Lists 97
12. FPD3 Fuentes Mitigation Witnesses
a. Mitigation Witnesses Extra Copies 563
b. Mitigation Witnesses All Alphabetical 560
c. Witness by Significance 375
d. Atlanta & GBI Witnesses 56
e. Atlanta Witnesses 131
f. Fuentes Questions 21
g. Atlanta Interviews Witnesses & Names 21
h. · Betty's Memos File- Friedman Folder 88
i. BFM- Atlanta Mitigation Witness who doesn't know GH 11/22-10/07 7
j. BFM- Atlanta Mitigation Witness who don't know/!. 7
k. BFM Investigation Leads 20
I. Brent Beth DGC Conflicted video copy 3/25/12 1
m Brent Elizabeth & William 1
n. Burdette April DGC conflicted copy 3/25/12 1
o. Caldwell Kenneth DGC conflicted copy 3/25/12 5
p. Castelli Maria DGC conflicted copy 3/25/12 3
q. Dr. Kulish GA GBI 11
r. Dr. Kulish Lawrence 0825 (DG Conflicted copy 3/25/12) 6
s. Fuentes Witness List and Notes 43
t. Fuentes Atlanta Witness who did not know /!. 14
u. Fuentes Interviews 727 pp Box326206 727
v. Hilton Gary- GBI Interviews Fuentes Interview Summaries 72
13. FPD4 Depositions 5,213
14. FPD5 Attorney Been & Suber Notes 263

452
 15. FPD6 Chris Ell rich Interviews & Memos 238
I 16. FPD6A Fuentes
17. FPD7 Hilton Interviews
538
115
I
I
a. 1" weekly visit
b. B FM GH Excerpts GAPD
3
7
c. Contact Visit 37
) d. ,Fuentes Memo 1117 7
1
e. GH excepts GAPD 7
f. Interviews DF Team 3
I
1 g. Original Interview 3
! h. Fuentes Questionnaire 86
i. BF Memo GH Excepts GAPD 7
j. BF Interview- GH Weekly Interv 80
k. FLPD Hilton Statements to DF Team 224
!. SBM Contact Visit 6/19/08 3
18. FPD Hilton Mise Timelines 297
19. FPD Autopsy 67
20. FPD Hilton GH Records
a. 1 DTG Record Summary 18
b. 2 Birth 33
c. 3 Schools 84
d. 4 Military Records 197
e. 4B Marriages 16
f. 4C Car Insurance 14
g. 5 Pre-Arrest Medical Records 10
h. SA Various Lab Tests 22
i. SB Pharmacies 53
j. 6 Prior Court & Criminal Records 1,219
k. 7TheCave 32
!. 7A Cell Phone 44
m. 7B Vet Records 9
n. 7C Camping Facility 2
0. 8 GH Addresses 15.
p. 9 Deicher 468
q. 10 Employment 23
r. 11 Post-Arrest MediCal Records 1,521
s. 12 Dawson Ct. Jail Records 690
t. 13GADOC 681
u. 14 Leon County Jail 536
v. 15 No Records Found 74
w. 16 Pretrial Letters from GH 160
x.. Records Matrix 13
21. FPD Home Movies 24
22. ·FPD Media Coverage 1,075
· 23. FPD Mise
·a. DNA Mixed Samples 50
b. CD Family & Friends Info 14
c. Emerson- CD Comparison 1
d. FL Crime Scene Location 5
24. FPD Snitch File 868
25. FPD Cave Box 836

453
 26. GA Homicide Plea & Ga Mise 164
27. GHMiscPhotos 427

II 28. GH DTG 2012 Memos & Reports

29. GH NC Atty
30. HiltonFL FilesJ-12-12
· 31. Hilton Grey 2012
87
2,071
1,136
276
32. Hilton Movies 46.1 minutes
33. Indictments empty
34. LE Cherokee Co. empty
I
j
35. LE Dawson Co. SO
36. LEFBI
10
14
37. LE Transcript empty
38. LEFDLE 299
39. LEGBI 10.33 Hours
a. Hilton GBI Summaries 17
b. GBI Volumes & Indexes 1,574
c. GBI Investigative Summaries 626
d. GBIMisc 177
e. Hilton Blood Mountain 1.78 Hours
f. GBI Investigative Summary Mitigation Summaries 85
g. Investigative Summaries in LE GBI 644
40. LE Leon County
a. LCSO Witness Summaries 848
41. LE US Fish & Wildlife 148
42. LE Wakulla Co SO 4
43. Possible Previous Victims 3
44. Press Coverage 458
a. Hilton Motions 270
45. V Cheryl Dunlap 76
46. Hilton Bill Indictment 5
47. Hilton Initial Brief 109
48. Hilton Woods I
49. Hilton Index Boxes 109 15
50. Hilton Master Index 51
51. LCSO Witness Summary 9
52. Cleo Debag Death Certificate 2
53. Interview Cleo Debag I GBI Matt Howard 61
54. Expert Documents Provided FL Defense Team 1,309
55. GH Medical Records CF 392
56. GH Transcripts - statements LE 362
57. GH Writings & Evidence from the Cave 824
58. Hilton Misc. Records 61
59. Interviews 29
60. John Tabor Statements 170
61. Records - record summary 194
62. Trial Penalty Phase 892
63. Walter G. statements 53
64. Hilton Doc. Provided Expert I
65. Hilton Mitigation Witness 19

454
 Terenc:eLeland, Ph. 0.
Clinical and Forensic Psychology
1235 Miccosukee Road
Tallaha~>see, Florida 32306
Phohe (850) 402-1976 Fax (850) 365-7978

Memorandum

:Pate: 12/1/15

To: Robert A. Morris, Esq.

From: Terence Leland, Ph.

Re: Glll)' Michael Hilton ps chological evaluation/mitigation review status report

Shortly following the lll}tirnely death of Dr. Harry McClaren, I agreed to beco111e engaged in
Mr. Hilton's cas.e. Dr. McClaren had been working with you and had· considerable .knowledge ·
of the case, having been involved in preparing for mitigation testimony many months prior to
trial. He did not testify at penalty pha.Se, apparently due to a last-minute reshtifflirig of the
defense team. and changes in mitigation strat~>gy, midway thtough trial. You requested that I
(1} critique the penalty phase expert testimony, (2) attempt to "reconstruct" Dr. McClaren's
psychologicallpsychosocial understanding/formulation of the case,. and (3) offer my own case
fomiulation. ·

At this tirne, I offer the following prelitninlll)' impressions/opinions:

(f) Both Defense and State penalty phase experts 11ppear to bave reviewed and incotpomted
into their testimony only a fraction of the information tbst was available regarding Mr.
Hilton's psychological/ psychosocial functioning. As a consequence; their <:ase formulations
were incomplete and their testimony oversimplified and/or overstated. Their representations
of the Defendant seemto be single-dimension caricatores that neglect the complex multi-
determinant nature of human behavior.

(2) It is unlikely tbst Dr. McClaren's understanding of Mr. Hilton can be reconstructed with
much specificity. He appears to bave reviewed considerably more information about the
Defendant's psychologica!lpsycbosocial ftuictioning than was inspected by either Defense or
State penalty phaSe experts. In all likelihood, had he be$ allowed to testify, he would. bave
offered a m.ore complete and accurate explanation of Mr. Hilton's hist<lry and actions. He
would almost certainly have anticipated the thrust of Dr. Gregory Prichard's testimony for the
State and been prepared to address the limitations and inaccuracies oftbst testimony.

455
 I
I ,~~
\
.J

2 Re: G. Hilton
/
//
/' m I (lip. not yet pr!'lpared to offer nJy own clinical formulation in this case. Voluminous
/ recqrds existthat need to be reviewed .. The Defendli.tit muSt also be directly intecyi!!'wed. Any
opinion/conclusion~ at ~Pis time would b~ very prelitninary and subject to significant
uncertainty and error. I estimate that I will need an additioi:ull2 to 3 months to complete my
evaluation.

456
Filing# 36522569 E-Filed 01/13/2016 02:56:14 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NUMBER: 2008-CF-697-A

CAPITAL CASE
STATE OF FLORIDA,

V.

GARY MICHAEL HILTON,

Defendant.
_________________ ./

ATTORNEY GENERAL'S OBJECTION TO THE DEFENDANT'S MOTION TO

CONTINUE EVIDENTIARY HEARING, MOTION FOR REHEARING AND MOTION
FOR BRIEFING SCHEDULE

COMES NOW, the Office of the Attorney General, by and through the undersigned

attorney, and hereby submits its objection to Defendant's motion to continue the evidentiary

hearing, currently scheduled for January 19, 2016- January 21, 2016, motion for rehearing, and

motion for briefing, and in support thereof states:

1. The Defendant filed his initial Motion for Postconviction Relief on November 25,

2014.

2. An evidentiary hearing was previously scheduled for September 8 - 9, 2015. The

Defendant moved to continue the hearing for ninety (90) days due to the death of his

expert, Dr. Harry McClaren.

3. This court entered an order, on August 24, 2015, granting the Defendant's motion to

continue the evidentiary hearing; the order reset the evidentiary hearing to January 19

- 21, 2016, providing the Defendant nearly five (5) additional months to prepare.

4. On August 24, 2015, this court also entered an order authorizing the defendant to

incur costs to hire forensic psychologist, Dr. Terence Leland.

457
5. The Defendant now seeks to continue the evidentiary hearing for another ninety (90)

day period in order for his expert, Dr. Terence Leland, to become "adequately

prepared to render opinions .... " and in light of the United States Supreme Court's

decision in Hurst v. Florida. (Motion to Continue at paragraphs 5 and 7- 9.)

6. The Office of the Attorney General objects to this request for several reasons.

7. Fla. R. Crim. P. 3.851 (f)(5)(C) states "The trial court may for good cause extend the

time for holding an evidentiary hearing for up to 90 days." (emphasis added) The

language "up to 90 days" seems to contemplate 90 days as a maximum time period;

the Defendant has already received a continuance of 148 days in this case.

8. Further, Dr. Leland was authorized to be retained nearly five (5) months ago and it

has been nearly fourteen (14) months since the Defendant filed his initial motion for

postconviction relief.

9. An evidentiary hearing is scheduled on the Defendant's claims of ineffective

assistance of trial counsel, not the competency or sanity of the Defendant. Only one

of the claims in his amended motion for postconviction relief pertains to his mental

health (Claim 5) and that is an allegation that Defendant suffers from multiple

sclerosis. Surely, if Dr. Leland is able to render such a diagnosis, he could have done

so within the last several months.

10. The Defendant, at trial, presented the testimony of four (4) mental health experts: (I)

Dr. Wu, a physician; (2) Dr. Golden, a psychologist; (3) Dr. Strauss, a psychiatrist;

and (4). Dr. Morton, a pharmacologist. The Defense also conferred with Dr.

McClaren, although he was not called as a witness at trial.

458
 II. The case Jaw is clear that the mere hiring of a new expert in postconviction who

reaches different conclusions is not sufficient to establish ineffective assistance of

counsel. Wheeler v. State, 124 So.3d 865, 885 (Fla. 20 13); Wyatt v. State, 70 So.3d

512,533 (Fia.20JJ);Davisv. Singletary, 191 F.3d 1471,1475 (llthCir.l997).

12. The Defendant also argues that the evidentiary hearing should be continued in light of

the United States Supreme Court's recent decision in Hurst v. Florida; he also

requests this Court grant a re-hearing on its order denying Claim VII(B) of his

Amended Motion for Postconviction Relief.

13. The Hurst decision has no impact on this litigation and should not serve as a basis for

continuance of the evidentiary hearing, nor should the Court grant the Defendant's

request for re-hearing on Claim VII(B). The United States Supreme Court, the

Eleventh Circuit Court of Appeals, and the Florida Supreme Court have repeatedly

held that Ring1 does not apply retroactively. Schriro v. Summerlin, 542 U.S. 348

(2004); Turner v. Crosby, 339 F.3d 1247 (II th Cir. 2003); and Johnson v. State, 904

So.2d 400 (Fla. 2005). Thus, it follows that Hurst, a ruling clearly based on the Ring

decision, does not either.

14. Assuming that Hurst could be applied retroactively, Claim VII(B) is procedurally

barred as it should have been raised on direct appeal. Farina v. State, 93 7 So.2d 612,

617 (Fla. 2006).

15. Additionally, Ring, and now, Hurst, are inapplicable because the Defendant had a

prior violent felony conviction (for the murder of Meredith Emerson in Georgia),

which the State proved at trial and to which this Court assigned great weight. Bevel v.

State, 983 So.2d 505 (Fla. 2008).

1
Ring v. Arizona, 536 U.S. 584 (2002).

459
 16. Furthermore, the jury's recommendation for death in this case was a 12-0 vote, so,

again, Ring/Hurst does not apply. Crain v. State, 894 So.2d 59 (Fla. 2004).

17. Since there is no basis on which to grant re-hearing on Claim VII(B), this Court

should also deny the request for a briefing schedule concerning same.

WHEREFORE, for the aforementioned reasons, the State respectfully requests that this

Court deny Hilton's motion to continue the evidentiary hearing, currently scheduled for January

19, 2016- January 21, 2016, motion for rehearing, and motion for briefing.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Objection to
Defendant's Motion to Continue Evidentiary Hearing, Motion for Rehearing, and Motion for
Briefing Schedule has been furnished via the e-portal to Georgia Cappleman, Chief Assistant
State Attorney, cappelmang@leoncountyfl.gov; Eddie Evans, Assistant State Attorney,
eevans@leoncountyfl.gov; Robert A. Morris, Esquire, alex@ramlawyer.com this 13 1h day of
January, 2016.

PAMELA JO BONDI
ATTORNEY GENERAL

CARINE L. MITZ
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0011943
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-0 I
TALLAHASSEE, FL 32399-1050
(850) 414-3300
primary email:
capapp@myfloridalegal.com
secondary email:
carine.mitz@myfloridalegal.com

CO-COUNSEL FOR THE STATE

cc: Honorable James C. Hankinson, Circuit Judge

460
Filing# 36777984 E-Filed 01120/2016 02:46:21 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

vs.
CASE NO. 2008-CF-697A

DIVISION: FELONY
GARY HILTON,
Defendant.
I

ORDER ON MOTION TO CONTINUE EVIDENTIARY HEARING. MOTION FOR

REHEARING AND MOTION FOR BRIEFINGgCHEDULE

TillS CAUSE, having come before the Court upon the Defendant's Motion to Continue

Evidentiary Hearing, Motion for Rehearing and Motion for Briefing Schedule; and this Court

having reviewed the Motion arid heard arguments of counsel, the Court finds that the recent

issuance of the United States Supreme Court's Opinion in Hurst v. Florida, No. 14-7505, WL

112683 (Jan. 12, 20 16) is an extraordinary circumstance and

IT IS HEREBY ORDERED AND ADJUDGED as follows:

I. The Defendant's Motion is GRANTED and the evidentiary hearing scheduled January

19th - 21 51, 2016 is continued and consequently cancelled.

2. A stay of the proceedings is entered in this case until such time as the Florida Supreme

Court can address the questions raised in Hurst v. Florida, No. 14~7505, WL 112683

(Jan. 12, 2016).

3. The evidentiary hearing in this case shall rescheduled no sooner than thirty (30) days

and no later than sixty (60) days after the Florida Supreme Court's decision in Lamhrix

v. Jones, Florida Supreme Court Case No. 16-56 or such other case that may intercedelt

to provide this Court guidance with respect to the unresolved matters in Hurst.

461
 4. This Court's prior non-final order entered on October 22, 2015 denying Claim VII(B)

is vacated. The Defendant shall have ten (1 0) days from the issuance of an opinion in

Lambrix or any other case that may intercede that provides guidance on the unresolved

matters in Hurst to file a memorandum/brief to supplement the argument in Claim

VII(B). The State shall have five (5) days thereafter to file a responsive pleading,

DONE AND ORDERED in Chambers, Tallahassee, Leon County, Florida on this

1-b +k
dayofJanuary,2016. (nunc pro tuncJanuaryl5. 20161

JAMES C. HANKINSON
CIRCUIT JUDGE

COPJES FURNISHED TO:

ROBERT A. MORRIS, ESQUIRE

Anomey for Defendant

GEORGIA CAPPLEMAN, ESQUIRE

Deputy Chief State Attomey

CARINE MITZ, ESQUIRE

Assistant Attomey General

462
Filing# 50355296 E-Filed 12,.:.1/2016 08:45:34 AM
J.L
IN THE CIRCUIT COURT, SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,
v. CASE NO.: 2008-CF-0697
CAPITAL CASE
GARY MICHAEL HILTON,

Defendant.

NOTICE OF APPEARANCE FOR ATTORNEY GENERAL

Florida's Attorney General represents the Plaintiff as co-

counsel in these proceedings. JENNIFER L. KEEGAN, Assistant

Attorney General, enters her appearance on behalf of the

Attorney General of the State of Florida in the above-styled

case. The undersigned requests that all pleadings and

correspondence in this case be directed to her in that capacity.

I HEREBY CERTIFY that a true and correct copy of the

foregoing Notice of Appearance has been furnished via the

eportal to Robert A. Morris, Esq., alex@ramlawyer.com, Attorney

for the Defendant; the Office of the State Attorney,

SA02 Leon@leoncountyfl.gov; this 21st day of December, 2016.

PAMELA JO BONDI
ATTORNEY GENERAL

I s I csfkm,~/0;· 2: 9/&',JZ"N'
JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL
Florida Bar No.: 0105283
PL-01, The Capitol
Tallahassee, FL 32399-1050
jennifer.keegan@myfloridalegal.com
capapp@myfloridalegal.com
Phone: (850) 414-3579

463
Co-counsel for the Plaintiff

464
Filing# 54636911 E-Fi1ed 04/04t2017 04:39:39 PM

IN THE CIRCUIT COURT OF THE

sEco'NDmmcrAI., cm.curr. IN
AND FOR LEON COUNTY, FLORIDA
STATE oF FLORIDA,

CASE NO. 1008-CF-697A

DIVISI0N: FELONY
GARY HILTQN, DEATH PENALTY
Defendant.
-------...JI

CASE MANAGEMENT ORPER FOREVIDENTIARY HEARING

I. EVIDENTIARY HEARING

Thls matter is set for an evidentiary hearing to start on Tuesday, October 3rd ar2:30pm,
cont. Wednesday October 4th a.t 8:30am: (all day), cont. Thursday October 5.that8;30am:
(mo~t all day), cont. FridayQctober 61ha.t 8:30am (all day). . The parties indicate no
scheduling conflicts with these dates, !l){cept .liS follows: .fv1s, Cappleman's regular
co\lrti'oom.dayis Qctober 3, 2017. Mr. Evans and Ms. Keegan are availablef'Orthe State..
fvir, Morris is available fortheDefense,
In accord!l!lc.e with the Americans withi)isabilities Act, persons needing special
accommodation to participate in this proceeding should.contact the Court
Adinillistrator's Office no later than seven days prior to the proceeding al(850) 577-
4300.

II, MOTION FOR LEAYE TO AMEND AND ANSWER

Should tJje Defendant seek to file an amended ptist-conviction motioll., the Defendant
shall. file amotion seeking leaveto.RIJlend !l!ld attach ~e amet;tded motion on .or befqrll ~
April 24,,2017.. If the Court grants leave to amen~accepts the.amendi:d ..motlon ll.il&
ppts an,.,,•i9e!!~m, 1~¢btg, in nhe!ur i11 tJ!Ift\ th.e .~ta.te shall fii~ an An.~wer~ithln 3.00' .. .
d. aysofthe qo\lfl'sord.•e.r; 'T'.~e...· bcP•v•i- V\41\.<i ~Nl....,ID14"-''( 1"""""~
.c.-,~. C,.V(dl.,.;.ll\.'\1 o.r"'( \.\-e. ell. to I "\..~ iJ
III.DISCLOSURI: OF WITNESSES AND DOCUMENTS

No late~. than 90 days after the &tate files itS answe~ to any .amended post-~onviction
motion (if s1,1chleave.Is granted) odrom the dell.ial ofl.eave to amend the present post-
C:onvictionrootion, both parties shall disclose alldoci.unentary e){hj.bits thlit they intend to
offer at the evidentiary heating, provide an e){hjbit list ofall such (lxhibiis, and exchange
a witness list. with the names iutd addresses of any potential witnesses. All expert
witnes~es sh!lll be so. designated on the witness list, and copies ofall expert repo~ shall
be.attached.

465
 All expert witnesses who will testifY at the evidentiary hearing. must sul:lmitwritten
reports, which shall be disclosed to opposing counsel as provided in subdivision Rule
J,8Sl (f)(S)(A), Florida Rules ofCriminaLProcedure. If the defendant intends to .offer
expert testimony of his or her mental status, tbe state shall be entitled to have tbe
defendant examined by its own mental healthexpei'(, If tbe defendant fails to cooperate
with the state's expert, the trial coUrt may, in its discretion, proceed as proVided in Rule
l202(e), Florida Rtiles of Criminal Procedure.

Upon motion, or upon its own motion and without the consent of any party, tbe coUrt may
petinit a wi.fi1es.s to testifY at the evidentiary hearing by contemporaneous video
cmnrininication eqQipml;lnt that makes .the witness visible to all parties during the
testiinony. There lllust be appropriate safeguards for tbe court to maintain s!ltlicient
controLover tbe equipment and tbe transmission oftbe testimony so the collrt maY stop
the communic.ation to accommodate objections or prevent prejudiee. Iftestimony is taken
through video comn111nication equipment, there must be a llotary p!il:llic or other person
at~thorized to administer oaths in the witness's jurisdiction who is prese11t with the
witness and who administers the oath consiste11t with the laws of tbe jurisdiction where
tl;!e witness is located. The>cost for the use of video communication equipi11.ent is the
responsibility ofeither the. requesting party or, if upon its own motion, the CoUrt.

IV. IU:.F'ENDANT'S PRESENCE

CoUI1.sel for the Defendant .shall be responsible for filing a Motion to Transport .and
obtaining an Order to Transport to procure tbe Defendal1.t1s presence for the sched1ded
hearin&.

l'I. . ~D. qN'E,AND ORDERED in Tallahassee, Leon County, Florida, on this Lday
-t"'-
of v.. \? r ' I , 2017.

{~
AMES C. HANKINSON, CIRCUIT JUDGE

Copies Furnished to:

RobertA. Morris, CoUI1.sel for the Defendant

Georgia.Cappleman, Assistant State Attorney

Eddie Evan, Assistant State Attorney

Jennifer Keegan, Assistant Attorney General

2

466
Filing# 54690294 E-Filed 04/05/2017 03:35:14 PM
1

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

CASE NO.: 2008-CF-0697

STATE OF FLORIDA

vs.
GARY MICHAEL HILTON,

_______;Defendant.

PROCEEDINGS: CASE MANAGEMENT HEARING

BEFORE: THE HONORABLE JAMES C. HANKINSON

DATE: March 23, 2017

TIME: commencing at 10:27 a.m.

concluding at 10:42 a.m.

LOCATION: Leon County Courthouse

Tallahassee, Florida

REPORTED BY: JULIE L. DOHERTY, RMR

Notary Public in and for the
state of Florida at Large

JULIE L. DOHERTY, RMR

official court Reporter
Leon County Courthouse, Room 341
Tallahassee, FL 32301

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

467
 2

1 APPEARANCES

2 REPRESENTING THE STATE:

3 EDDIE D. EVANS, ASSISTANT STATE ATTORNEY

GEORGIA CAPPLEMAN, ASSISTANT STATE ATTORNEY
4 OFFICE OF THE STATE ATTORNEY
LEON COUNTY COURTHOUSE
5 TALLAHASSEE, FLORID~ 32301

6 and

7 JENNIFER L. KEEGAN, ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL
8 PL-01, THE CAPITOL
TALLAHASSEE, FLORIDA 32399-1050
9

10

11 REPRESENTING THE DEFENDANT:

12 ROBERT A. MORRIS, ESQUIRE

911 EAST PARK AVENUE
13 TALLAHASSEE, FLORIDA 32301

14

15 INDEX

16 PAGE:

17 Certificate of Reporter 11

18
19

20

21

22
23

24

25

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

468
 3

1 PROCEEDINGS
2 (Defendant not present.)
3 THE COURT: Be seated, please, folks.
4 We're here in State of Florida v. Gary Hilton,
5 2008-CF-697. We may not have needed to set a hearing on
6 this, but I thought just as a courtesy I would.
7 Basically, I just wanted to see if there is any
8 reason that we continue the stay; and, if not, set some
9 time frames for what's going to occur next. Let me hear
10 first, Mr. Morris, are you aware of any reason why we
11 should continue the stay?
12 MR. MORRIS: Well, while Lambrix is not final at
13 this point, I don't foresee there being a change. And,
14 also, there are multiple other cases that have spoken to
15 the issues of retroactivity, harmless error, et cetera.
16 so I think that there's sufficient case law that provides
17 guidance to the court. so that's a long way of me
18 telling you that, no, I don't see a reason that the stay
19 should remain.
20 THE COURT: State?
21 MS. KEEGAN: Jennifer Keegan for the record, Your
22 Honor.
23 THE COURT: I'm sorry, do that again.
24 MS. KEEGAN: Jennifer Keegan the record, Your Honor,
25 with the Attorney General's office.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

469
 4

1 THE COURT: Spell your last name, if you would for

2 me, please, ma'am.
3 MS. KEEGAN: Keegan, K-E-E-G-A-N. And we have no
4 objection to lifting the stay at this time, Your Honor.
5 THE COURT: I assume you're in agreement, Mr. Evans.
6 MR. EVANS: Yes, Your Honor.
7 THE COURT: All right. SO I will lift the stay.
8 I guess the next question is, Mr. Morris, do you
9 anticipate filing an amended motion; and, if so, we need
10 to get some time frame on when we can anticipate that.
11 MR. MORRIS: Judge, I took the liberty of speaking
12 with Ms. Keegan yesterday and I do intend on filing,
13 first, a motion to seek leave of the court to amend. I
14 have begun drafting the amended motion. It addresses two
15 things; Hurst and its progeny, the Ring claims
16 essentially.
17 And I have also drafted a document that is a proffer
18 or an offer of proof of specific things that the defense
19 would seek to introduce to support the claims that have
20 already been made. It essentially serves to more
21 narrowly tailor the circumstances. It places the State
22 on notice of what the arguments of counsel will be.
23 I spoke with Ms. Keegan and Mr. Evans about those
24 things. It doesn't serve to amend claims or add
25 additional claims or new claims; it just tightens the

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

470
 5

1 scope of things. so, yes, it would be my intention to

2 file an amended petition.
3 Ms. Keegan and I discussed if I might have a 30-day
4 period of time within which to do so, and then she might
5 have a 30-day period of time in which to resolve -- or,
6 excuse me, respond. And then, obviously, I think that we
7 need to start looking for hearing dates when Your Honor's
8 calendar allows.
9 THE COURT: so you're going to make a Hurst claim
10 and then you're going to clarify the current claims is
11 basically what I understood.
12 MR. MORRIS: That's accurate, yes, sir.
13 THE COURT: I mean, I think the appropriate thing is
14 to file your motion to amend with -- simultaneous with
15 your proposed amended motion. You can presume I'm going
16 to allow you to amend. I think it would be pretty silly
17 to suggest otherwise at this point in time.
18 MR. MORRIS: Understood.
19 THE COURT: But, anyway. And you think you can
20 accomplish that in 30 days?
21 MR. MORRIS: Yes, Your Honor.
22 THE COURT: State?
23 MS. KEEGAN: Yes, Your Honor. Mr. Morris's
24 representation 1s accurate and we agree to everything
25 that he said.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

471
 6

1 THE COURT: The only thing I would say is I don't

2 know that I want you to wait until those times have
3 passed to seek time on my calendar. I would think we
4 ought to go ahead and get an evidentiary hearing set.
5 I previously authorized an evidentiary hearing. I

6 don't think it's unlikely I would say I think it's

7 going to be unlikely that you're not granted an

8 evidentiary hearing on at least some claims. so I think

9 it would be better to go ahead and get the hearing set

10 up, even understanding it's going to be 30 days for your

11 amendment to be filed, 30 days for them to respond so
12 that puts us out 60 days.
13 But -- and we can --you know, y'all can discuss how
14 long you want after that. And I'm not trying to dictate
15 that, but I'd rather go ahead and get the hearing set so
16 everybody is aware of when it is.
17 Do you have a problem with that, Mr. Morris?
18 MR. MORRIS: No. And if I could suggest and if the

19 court is okay with it, I will -- I and my staff will take

20 responsibility for coordinating with all of the parties,
21 as well as Your Honor, in terms of dates that are
22 available. we were discussing things like family
23 vacations and things of that nature.
24 Also, I need to have further discussion with
25 Mr. Evans and Ms. cappleman on what are going to be the

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

472
 7

1 appropriate time lines for witness list disclosure,

2 exhibit disclosure, expert witness report disclosure.
3 That way we've got a time line that mirrors the rule of
4 procedure.
5 so if Your Honor would afford me a couple of days to
6 speak with them and coordinate and then I would set all
7 of that out in an order.
8 THE COURT: Right. I think we would be well-served
9 to have a case management order that would incorporate a
10 date that we have set for evidentiary hearing, along with
11 the other dates that we have set.
12 Does the State have a different position?
13 MS. KEEGAN: No, Your Honor.
14 THE COURT: Okay. All right. So we think within a
15 week or so you can put that together, Mr. Morris?
16 MR. MORRIS: Yes, Your Honor.
17 THE COURT: so why don't we shoot for that and try
18 to have a case management order to me. Hopefully, it
19 will be agreed upon. If it's not agreed upon, whoever 1s
20 in opposition, just put your comments in writing. we
21 don't need to have another hearing on that. I'll do it
22 in writing.
23 Hopefully, everybody is playing nicely and we can
24 get an agreed upon order as to case management. But I
25 agree that we should get those things set out, and the

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

473
 8

1 rules of procedure largely dictate those anyway.

2 so anything else from the defense?

3 MR. MORRIS: Judge, there are two items. I noticed

4 in reviewing the clerk of court system that there were
5 some anomalies in terms of filings. There's nothing

6 that's occurred in the case si.nce the entry of the stay,

7 but in June of this past year, there are numerous
8 different pleadings that date back years that all of a

9 sudden popped up in the system.

10 And I don't know if they were originally part of the
11 record, not part of the record, overlooked. I haven't
12 gone through all of them as to their significance, but I
13 didn't know if you had any insight as to what those were.
14 THE COURT: I would assume it's them catching up on
15 their scanning and as things are scanned, adding it into
16 the record. I don't know that for sure.
17 MR. MORRIS: Fair enough.
18 THE COURT: I don't know the answer to that
19 question.
20 MR. MORRIS: I'll take a closer look. It just it

21 caught me a little bit off guard because it had been --

22 THE COURT: One of the things they do that often
23 causes confusion is they'll go back and pull the minutes
24 from the files for when we had a hearing on a particular
25 date. And they might have ten of those from a year or

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

474
 9

1 two period and then they scan those and then put them
2 into the record. It confused me the first time I saw
3 some of those, but that's typically done. That's just

4 the clerk's minutes being scanned and put into the

5 record.

6 so I don't know specifically what you're referring

7 to.
8 MR. MORRIS: I'll take a closer look at it and I
9 just -- I was confused, as you mentioned.
10 The second issue, and I say this more as a remainder
11 to myself, we still have the outstanding issue of the
12 court making a finding and determination of competency
13 and Your Honor has asked me to remind the court of that
14 at each instance. And so I just make mention of it so we
15 keep track of that idea.
16 THE COURT: All right.
17 MR. MORRIS: other than that, that's all I have,
18 Judge.
19 THE COURT: If you desire an updated report, you'll
20 just need to bring that to my attention. Otherwise,
21 we'll proceed with what we've had done so far.
22 MR. MORRIS: I don't foresee a necessity of that.
23 THE COURT: State?
24 MS. KEEGAN: No, nothing further, Your Honor.
25 THE COURT: okay. All right. So we have a plan.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

475
 10

1 We'll have an amended motion within 30 days and we'll

2 have a case management order within about a week. The

3 State will have 30 days to file a response to the amended

4 motion.

5 And we'll go ahead and get an evidentiary hearing

6 set, which will incorporate the case management issues

7 primarily as set out in the Rules of criminal Procedure.

8 All right. so I'll wait to see your order, Mr. Morris.

9 MR. MORRIS: Thank you, Judge.

10 THE COURT: All right. we'll be in recess.

11 (court adjourned at 10:42 a.m.)

12
13

14
15

16
17

18
19
20
21
22
23

24
25

JULIE L. OOHERTY, RMR, OFFICIAL COURT REPORTER

476
 11

1 CERTIFICATE
2 STATE OF FLORIDA:
3 COUNTY OF LEON:
4 I, JULIE L. DOHERTY, Registered Merit Reporter, do
5 hereby certify that the foregoing proceedings were taken

6 before me at the time and place therein designated; that my

7 shorthand notes were thereafter translated under my
8 supervision; and the foregoing pages are a true and correct
9 record of the aforesaid proceedings.
10 I FURTHER CERTIFY that I am not a relative,
11 employee, attorney or counsel of any of the parties, nor
12 relative or employee of such attorney or counsel, or
13 financially interested in the foregoing action.
14
DATED this 5th day of April, 2017.
15
16
17
18
19 JULIE L. DOHERTY, RMR
OFFICIAL COURT REPORTER
20 LEON COUNTY COURTHOUSE
TALLAHASSEE, FLORIDA 32301
21
22
23
24

25

477
Filing# 55382054 E-Filed 0'-., ""0/2017 04:19:55 PM
).\!>

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,

IN AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE NO: 2008-CF-697A

DIVISION: FELONY
DEATH PENALTY

GARY MICHAEL HILTON,

DEFENDANT.

SECOND MOTION FOR LEAVE TO AMEND INITIAL POSTCONVICTION

MOTION AND INCORPORATED MEMORANDUM OF LAW

COMES NOW, the Defendant, Gary Michael Hilton, by and through the

undersigned attorney pursuant to Rule 3.85l(t)(4) of the Florida Rules of Criminal

Procedure and files this Second Motion for Leave to Amend Initial Postconviction

Motion and Incorporated Memorandum of Law and alleges the following:

1. As this Court is aware, a stay of the proceedings was entered on January 20,

2016 in the wake of Hurst v. Florida, No. 14-7505, WL 112683 (.Tan. 12,

2016).

2. This Court lifted the stay of the proceedings at a case management conference

held on March 23, 2017 after confening with counsel for both parties.

3. At the aforementioned hearing, Counsel for the Defendant identified that he

intended to file an amended pleading and would file an appropriate motion

seeking leave to do so with the amended pleading attached.

478
4. The Court entered a Case Management Order for Evidentiary Hearing on April

4, 2017 setting the case for evidentiary hearing October 3, 2017- October 6,

2017.

5. In the Apri14, 2017 Order, the Court directed that any amended pleaded should

be Hied on or before April 24, 2017.

6. Section 921.141, Florida Statutes (20 17) has undergone massive

transformations in the last twelve (12) months. See Laws 2016, c. 2016-13, §

3, eff. March 7, 2016; Laws 2016, c. 2016-24, § 49, efT. Oct. 1, 2016; Laws

2017, c. 2017-1, § 1, eft: March 13,2017.

7. The foregoing evolution of the law through the appellate courts as well as the

legislature has left many justiciable and pending issues.

8. Rule 3.851 (f)(4 ), Florida Rules of Criminal Procedure provides:

A motion filed under this rule may not be amended unless

good cause is shown. A copy of the claim sought to be
added must be attached to the motion to amend. The trial
court may in its discretion grant a motion to amend
provided that the motion to amend was filed at least 45
days before the scheduled evidentiary hearing. Granting a
motion under this subdivision shall not be a basis for
granting a continuance of the evidentiary hearing tmless a
manifest injustice would occur if a continuance was not
granted. If amendment is allowed, the state shall ftle an
amended answer within 20 days after the judge allows the
motion to be amended.

479
9. A trial court's refusal to grant a party leave to amend a 3.851 motion is

reviewed under an abuse of discretion standard. See Lugo v. State, 2 So. 3d 1

(Fla. 2008) citing Bryant v. State, 901 So.2d 810,817 (Fla. 2005).

10. It is entirely appropriate for an amended pleading to expand, clarifY or enlarge

matters that have already been presented to a court. See Surinach v. State, 110

So .3d 95, 95 (Fla. 2d DCA 20 13) ("Amended motions for post-conviction

relief are subject to the two-year time limit for filing rule 3.850 motions unless

they merely enlarge an issue or issues raised in the original motion."); Rincon

v. State, 996 So.2d 922, 923 (Fla. 4th DCA 2008). Admittedly, the foregoing

rulings are pursuant to Rule 3.850, but they provide a lens through which

amendments in a Rule 3.851 should be measured.

11. The undersigned has drafted a Second Amended Motion for Post-Conviction

Relief: Ibis is an effort to aid the parties in proceeding forward on one

pleading versus the parties referencing numerous pleadings, addendtnns and

memorandums.

12. The amendments presented are not new claims. They are renumbered and

there are different subsections. However, they serve two purposes. First, they

address the legal issues that have arisen since the imposition of the stay of the

proceedings. Second, they serve to more narrowly tailor the presentation of the

arguments before the Court. All of the amendments provide more specificity

480
 and clarity to the legal issues presently before the Court and relate back to the

original claims made.

13. The undersigned has not incorporated attachments/exhibits into the pleading

attached hereto because they are duplicative of those filed with the original

pleading. In the event of that necessity, the undersigned would request leave to

simply amend with the attachments originally filed.

14. The undersigned has conferred with Assistant Attorney General Jennifer

Keegan and she has no objection to the filing of a second amended pleading in

so far as the amendments address the legal arguments that have arisen and

additional infonnation is in relation to the claims already presented.

WHEREFORE, the undersigned requests the entry of an Order with Leave to

Amend and accepting the pleading attached hereto.

Respectfully submitted this 20 111 day of April, 2017.

R' B ' T A. MORRIS, ESQUIRE

The Law Offices ofRobe1t A. Morris, LLC
F1oridaBarNo.: 0144680
911 E. Park Avenue
Tallahassee, Florida 3230 I
(850) 792-1111 Facsimile (850) 792-1113
alex@ramlawyer.com
Attorney for Defendant
COURT APPOINTED

481
 CERTIFICATE OF SERVICE

l HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 301 S. Momoe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4111 Floor, 301 S, Monroe Street, Tallahassee, FL, and Jennifer Keegan,

jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office ofthe Attorney General,

PL-01 The Capitol, Tallal1assee, Florida32399-1050 on this 20 111 day of April, 2017.

482
 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No. 2008-CF-697A

DEATH PENALTY
GARY HILTON,

Defendant.

SECOND AMENDED MOTION FOR POST-CONVICTION RELIEF

Defendant Gary Hilton, through counsel, respectfully moves this Court for an Order,

pursuant to Fla. R. Crim. P. 3.851, vacating and setting aside the judgments of convictions and

sentence, including his sentence of death, imposed upon him by this Court. In support thereof,

Mr. Hilton respectfully submits as follows:

PROCEDURAL HISTORY

The Honorable James C. Hankinson, Judge for the Circuit Court of the Second Judicial

Circuit of Florida, Leon County, entered the judgments of conviction and sentence under

consideration. Mr. Hilton was charged by Indictment on February 28, 2008 for first degree murder

of Cheryl Dunlap, grand theft motor vehicle, kidnapping, and grand theft. Exh. A The Office of

the Public Defender for the Second Judicial Circuit was appointed to represent Mr. Hilton. Exh.

B. The State filed their Notice of Intent to Seek the Death Penalty on July 28, 2008. The matter

was called on for trial, and jury selection was conducted between January 31, 2011 and February

2, 2011. R, Jury Selection, 1-1083. The guilt phase commenced on February 4, 2011 and

concluded on February 15, 2011. R, Trial-Guilt Phase, 1-1609. The jury returned a verdict of

guilty of first degree murder (interrogatory verdict of premeditation and felony murder), kidnaping

483
(interrogatory verdict of proof of intent to facilitate a felony and to inflect bodily harm or terrorize)

and grand theft. The jury found Defendant not guilty of grand theft motor vehicle.

The penalty phase commenced on February 17, 2011 and concluded on February 21, 2011.

R, Jury Trial-Penalty Phase, 1-758. The jury returned an advisory verdict of 12-0 recommending

the imposition of the death penalty. Exh. C.

A Spencer hearing was conducted on April 7, 2011. R, Spencer Hearing, 1-48. The judge

sentenced Defendant to death on Apri121, 2011 for Count!. R, Sentencing, 1-6. Defendant was

also sentenced to life on Count II and five (5) years on Count IV, with each sentence to run

consecutively. !d.

The Court found the following aggravating circumstances to support the death sentence:

(1) Defendant was previously convicted of another capital felony based on his conviction for

murder in Georgia (great weight); (2) the capital felony was committed during a kidnapping (great

weight); (3) the capital felony was committed to avoid an·est (moderate weight); (4) the capital

felony was committed for financial gain (some weight); (5) the capital felony was especially

heinous, atrocious, or cruel (great weight); and the capital felony was committed in a cold,

calculated, and premeditated manner (great weight). Hilton v. State, 117 So. 3d 742, 749 (Fla.

2013).

The Court found one statutory mitigating factor-that Defendant was under the influence

of extreme mental or emotional disturbance at the time of the crime. The Court rejected as

unproven the mitigating factor that Defendant's capacity to appreciate the criminality of his

conduct or to conform his conduct to the requirements of the law was substantially impaired. The

Court found the non-statutory mitigating factors that (1) Hilton grew up in an emotionally abusive

and neglectful home; (2) Hilton abused drugs, including Ritalin, over a long period of time; (3)

484
Hilton had no relationship with his biological father; (4) Hilton is already serving a life sentence;

(5) Hilton served his country in the military; (6) Hilton suffered maternal deprivation and lacked

bonding of a mother and child; (7) Hilton was placed in foster care as an adolescent; and (8) Hilton

suffered traumatic brain injury as a child. The Court rejected as not proven the non-statutory

mitigating factors that (1) Hilton grew up financially poor and (2) Hilton suffers from severe

mental defects. !d. at 749-50.

(A) JUDGMENT AND SENTENCE UNDER ATTACK

Mr. Hilton was sentenced to death for the first degree murder of Cheryl Dunlap; he was sentenced

to a consecutive sentence of life for the kidnapping of Che1yl Dunlap; he was sentenced to a

consecutive sentence of five years for grand theft.

(B) ISSUES RAISED Al\'D DISPOSITION ON DIRECT APPEAL

Defendant appealed to the Florida Supreme Court. The issues on appeal were the

following:

(!)The trial court ened in admitting statements .Hilton made to law enforcement because

the statements included references to inadmissible collateral crimes. The Florida Supreme Court

folll1d that the statements did not include admissions of collateral crimes and showed

premeditation, so the trial court did not en. !d. at 750-51.

(2) The trial court ened in allowing the State to present, through the testimony of Dr.

Prichard, allegations of Hilton's arrests, prior bad acts, and uncharged crimes that were improper,

non-statutory aggravating circumstances. The Florida Supreme Court denied this claim because

this testimony was offered to rebut the penalty phase defense that Mr. Hilton was a law-abiding

citizen before his exposure to Ritalin. !d. at 751.

485
 (3) The trial court erred in excusing the State's expert witness psychologist from the

sequestration rule during penalty phase, in permitting the State's expert to render an opinion on

the validity and credibility of the opinions rendered by the defense mental health experts, and

denying a requested jury instruction concerning the correct use of the State's expert's testimony.

The Florida Supreme Court denied this claim because the State had filed its notice of intent to seek

death late and was unable to send Dr. Prichard to examine Mr. Hilton, so Dr. Prichard needed to

observe the penalty phase to be a meaningful witness for the State. Id at 751-52.

(4) The trial court erred finding the heinous, atrocious, or cruel and the cold, calculated,

and premeditated aggravating circumstances and in relying on the facts of the collateral murder

conviction in Georgia as a basis to find the aggravators. The Flori.da Supreme Court denied this

claim. As to the heinous, atrocious, and cruel factor, it found that there was substantial evidence

that the victim bad been held for several days before her death and that she was injured enough to

bleed. As to the cold, calculated, and premeditated factor, it fow1d that Mr. Hilton's statements to

the police and a fellow prisoner established that he was with the victim for a long enough time to

reflect on his actions. Id at 752-54.

(5) The trial court erred in rejecting the mitigating circumstance that Hilton had an impaired

capacity to appreciate the criminality of his actions or to conform his actions to the requirements

of the Jaw without adequate evaluation of the defense expert testimony presented in mitigation.

The Florida Supreme Court denied this claim because it found that the trial court had compared

the expert testimony to the rest of the evidence and follild the State's expert more credible. ld at

754.

(6) The death penalty is unconstitutionally imposed because Florida's sentencing

procedures are unconstitutional under the Sixth Amendment pursuant to Ring v. Arizona. The

486
Florida Supreme Court denied this claim because two of the aggravators were the

contemporaneous kidnapping felony and a prior violent felony, which insulated any Ring error.

!d. at 754-55.

The Florida Supreme Court affirmed Mr. Hilton's conviction and sentence. !d. at 756.

(C) NATURE OF RELIEF SOUGHT

Mr. Hilton respectfully requests that his convictions and sentences, including his sentence

of death, be vacated and set aside.

(D) CLAIMS FOR WHICH AN EVIDENTIARY HEARING IS SOUGHT

Claim 1: Trial counsel was ineffective during the penalty phase in violation of Mr.
Hilton's Sixth and Fourteenth Amendment right to effective counsel

During Mr. Hilton's penalty phase, trial counsel inexplicably failed to elicit relevant

testimony from witnesses on the stand, completely failed to call other witnesses who had helpful

information, and did not adequately consult with and prepare the expert witnesses. Cotmsel's

stewardship during the penalty phase was deficient, and these deficiencies prejudiced Mr. Hilton

by not providing the effective counsel guaranteed by the Sixth and Fourteenth Amendments.

Accordingly, Mr. Hilton is entitled to a new penalty phase.

I. Trial counsel was ineffective for failing to present compelling mitigation evidence

Trial counsel opted for a barebones, streamlined mitigation presentation during the penalty

phase. This left out much of Mr. Hilton's life history and led to a mitigation story that ultimately

hurt Mr. Hilton because it opened the door to the State's harmful rebuttal evidence. Trial counsel

collected historical infonnation about Mr. Hilton's life, which included, among other things, head

injuries, neglect, sexual abuse, suicidal ideations, instability, poverty, and mental illness.

However, the jury never heard a vast majority of this information, including that this was not

simply a case of Ritalin overuse, but instead Ritalin overuse by a man who was already impaired

487
and on the cusp of a breakdown. Trial counsel could have shown the jury that Mr. Hilton's brain

damage and mental illness, in addition to his troubled life history, left him especially vulnerable

to the effects of wrongfully prescribed Ritalin. Had trial counsel presented a more complete picture

of Mr. Hilton's life history, there is a reasonable likelihood that the result of the penalty phase

would have been different and the jury would have voted for life.

A. Mitigating evidence available at the time of trial would have shown Mr.
Hilton's life filled with mental illness, brain injury, childhood abuse and
neglect, unstable relationships, and years of substance abuse.

1. Mr. Hilton's mother came from a neglectful environment and entered

into a similarly neglectful marriage with Mr. Hilton's father

Cleo Marie Debag nee Reynolds, Mr. Hilton's mother, was born in Calhoun, Georgia, in

1925. She had three siblings, and she was the second oldest When Ms. De bag was eleven-years-

old, her mother died. A few years later, her father remarried a much younger woman. Ms. Debag' s

father and stepmother abused and starved the kids. The parents would put the children outside

without any food, and the children were not allowed to come in. When they were inside, Ms.

De bag's father would hide the food from them. Finally, Ms. Debag's stepmother grew tired of the

children and sent them to live elsewhere. Ms. Debag was left on her grandmother's porch and

eventually moved in with her aunt and uncle. She viewed her aunt and uncle as her parents after

that. Ms. Debag dropped out of school in ninth grade and worked as a dishwasher.

In 1943, Ms. Debag was working as a waitress in a pharmacy when William Esco Hilton

came in. He asked for pennission to take her home, and she agreed. They started dating after this,

and they married tlu·ee months later on October 2, 1943. Mr. William Hilton was thirty-two, and

Ms. Debag was eighteen.

Three months after they were married, Mr. William Hilton left to join the Army. After

this, Ms. Debag and William Hilton never lived together again. They would see each other

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sporadically and meet in hotels. Three years after they were married, Ms. Debag got pregnant. At

the time, the IruUTiage was not going smoothly, and Ms. Debag got pregnant intentionally in the

hopes that it would force William Hilton to get them an apartment. Her plan did not work, but

Gary Michael Hilton was born on November 22, 1946.

William Hilton left his young family and moved to Jackson, Georgia to open a jewelry

store. He actually had another wife in Jackson at the same time that he was married to Ms. Debag,

and he had four more children. At least two of these children were also abandoned by their father.

2. Mr. Hilton spent his early childhood with his impoverished single
mother

Ms. Debag had been hoping for a girl when she got pregnant, so she dressed Mr. Hilton in

girl's clothes for the first few months of his life. She rented out a room in a house and lived there

with him. There was no cri.b, so he slept in the same bed as his mother. William Hilton was not

providing financial assistance, so they did not have much money. Ms. Reynolds tried to sue him

for child support at one point, but Legal Aid was unable to locate him.

When Mr. Hilton was a baby, Ms. Debag was very attentive. She always had him with her

when she was not working and spent all of her free time taking care of him. She took a lot of

pictures and kept track of his milestones.

When Mr. Hilton was nine-months-old, Ms. Debag divorced William Hilton. She brought

her baby to the courthouse with her, and he played under the table during the proceedings. William

Hilton would not even acknowledge his son. This was the last time that William Hilton saw his

son. He was later shot and killed by one of his wives, Edna May Hilton, in Lexington, Kentucky

in 1971 after he attacked her with a fire poker.

Ms. Debag continued raising her baby by herself. When Mr. Hilton was one-and-a-half,
I
he had to go in for tonsil and adenoid surgery. Ms. Debag had to put hot towels on his head

489
because the pain from his sinuses was so intense. Around this same time, Mr. Hilton also

con!Tacted rheumatic fever. This lasted until he was five-years-old. The doctors told Ms. Debag

not to let Mr. Hilton walk, and after that she carried him until he was three.

Ms. Debag returned to work when Mr. Hilton was two. She made $1.00 per hour and

$25.00 per month. Since Ms. Debag was not making very much money, they either rented out

rooms or lived in housing projects. She would get home very late, so she would make him dinner

and then put him to bed right away. She did not have as much time for her young son, and she did

not get to interact with him as much as she once had. When she did spend time with him, however,

she treated him like a friend instead of her very young child. She was lonely, so she would talk to

Mr. Hilton as if he were an adult and shared personal, mature things with him.

When Ms. De bag could take time off work, she would take Mr. Hilton on trips. She would

take him to see his cousins in Gainesville, Georgia. However, one of his older cousins threw a

mattress on Mr. Hilton and smothered him, almost killing him. Mr. Hilton was only four at the

time.

Even after the sinus surgery, Mr. Hilton continued to suffer from his sinus problems as a

young child. When Mr. Hilton was only five, he was in so much pain that Ms. Debag walked in

on him holding a knife, about to cut his arms. When Mr. Hilton started attending kindergarten, he

still had symptoms of rheumatic fever and had a heart murmur.

Around this time, Mr. Hilton got a pet bird named Pee Wee. He was very attached to the

bird. Ms. Debag left the window open one day, and the bird flew away. Mr. Hilton spent hours

calling for his bird, who never returned. Though it was an accident, Mr. Hilton blamed his mother

for letting the bird go.

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 When Mr. Hilton was in second grade, Ms. De bag transferred for work to Tampa, Florida.

They lived in a housing project. Mr. Hilton went to daycare when he was not in school, but it was

not a good one. One day, Mr. Hilton got stuck in a bathroom. When he called for help, nobody

responded. He had to crawl through a window to get out. After that, Ms. De bag started leaving

Mr. Hilton with a neighbor. However, the neighbor tried to throw Mr. Hilton into an alligator pit,

and this terrified Mr. Hilton. He started going to the Boys and Girls Club of Tampa after that,

where he excelled.

3. In later childhood, Mr. Hilton's relationship with his mother crumbled

once she remarried, and he suffered from a significant brain injury

Mr. Hilton's life changed for the worse in 1955. When he was nine-years-old, his mother

met and married Nilo Debag. Mr. Debag was a horse trainer from Argentina. He traveled around

to different race tracks around the country. One night, he was at a park in Tan1pa when he came

across Ms. Debag and Mr. Hilton. It was raining, so he offered them a ride and to go get something

to eat. Ms. Debag was still having financial problems, and Mr. Debag had a lot of money. By this

time, Ms. Debag had her own apartment, and Mr. De bag started coming over and staying the night.

Two months after they started dating, Mr. and Ms. De bag got married.

Mr. Hilton's life was very different after his mother's remaniage. He went from having

his mother give him her full attention when she was not at work to her regularly choosing her new

husband over him. Mr. De bag traveled a lot for work, training and buying horses. Mr. Hilton's

mother would go with him, and when she did this she would leave Mr. Hilton with his aunt. Mr.

Debag became possessive over Ms. Debag, and he wanted her all to himself. Once they were

married for two months, they moved to Toledo, Ohio. They left Mr. Hilton behind, and he moved

in with his maternal aunt and uncle.

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 Six weeks later, Ms. Debag moved back to Tampa, and Mr. Hilton returned to her care.

Mr. Debag moved separately to Chicago and then Cleveland. Once Ms. Debag and Mr. Hilton

were back in Tampa, they rented a room within a house. A day or two after they moved in, Ms.

Debag was trying to unscrew a Murphy bed bolted to the floor but could not get under it. She

asked Mr. Hilton to go under the bed, but then it fell on his head. Ms. Debag lifted the bed and

started screaming. The metal bars had cut Mr. Hilton's scalp open. A next door neighbor,

Victorine Rowe, heard the screaming and ran. over. She saw Ms. Debag trying to hold bloody

towels over Mr. Hilton's head and to calm down so the towels would stay still. Another neighbor

came over to take them to the hospital. Mr. Hilton was in the hospital for a week, and he received

two hundred (200) stitches in his head. When he finally went back home, his entire head was

bandaged.

Mr. Hilton continued to move around a lot with his mother and stepfather. He changed

schools about every three months. Within a couple years, Mr. Hilton lived in Atlanta, Tampa,

Toledo, Louisville, Cleveland, Cincinnati, and back to Tampa. Mr. and Ms. Debag continued to

pull Mr. Hilton out of school to travel around with him. Mr. Hilton tried to participate in school

activities. For example, in Toledo he became a school patrol; but this was short-lived because he

had to move again. The family went to Tampa, Chicago, Miami, Hialeah, San Francisco, and back

to Hialeah. Between kindergarten and seventh grade, Mr. Hilton changed schools seventeen times.

A few times, he was in school for less than a week. Wben they were in San Francisco, Mr. Hilton

missed school for a month after a flood prevented him from returning to school.

Mr. Debag lived with the family sporadically. One of the times that they were all living

together in Toledo, about a year after Mr. and Ms. Debag were married, Mr. Hilton started

vomiting a lot. Ms. Debag took him to the doctor, who told them that Mr. Hilton had an ulcer.

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The ulcer went away once Mr. Debag was living by himself in Ohio and Mr. Hilton was with his

mother in Florida. Ms. De bag assumed that Mr. Hilton was afraid of Mr. De bag and that is why

he got the ulcer. When Mr. Debag got angry, which was often, he would break and throw things.

One time he tore up one of Mr. Hilton's favorite coats. Ms. De bag told Mr. Hilton not to speak or

respond to Mr. Debag's outbursts. Ms. Debag suspected that Mr. Hilton and Mr. Debag were

jealous of each other because they both wanted all of her time and attention.

When Mr. Hilton was ten, Mr. Debag left for one of his business trips. While he was gone,

Ms. De bag had a miscarriage. Mr. Hilton was the only one around, and he had to call an ambulance

for his mother.

During all this moving around, Mr. Debag brought Mr. Hilton back a Dalmatian named

Muhamad. Mr. Hilton got very attached to the dog and dressed him up for Halloween. He played

with and trained Muhamad. Then, Mr. De bag suddenly took Muhamad away and never brought

him back. Another time, when Mr. Hilton was eleven, they lived next door to a family who got a

puppy. Mr. De bag thought that the family was not taking care of the puppy, so he took it. They

brought the puppy with them when they moved back to Florida. Shortly after the move, the dog

disappeared. Mr. Hilton found the dog's body in a trash can where Mr. Debag had thrown it.

When Mr. Hilton was around eleven or twelve, Ms. De bag came home from work. Mr.

Debag and Mr. Hilton had been home alone together. Mr. Hilton privately told his mother that

Mr. Debag had tried to take off his pants in front of him. Ms. Debag dismissed it and did not

confront Mr. Debag with Mr. Hilton's accusation.

Mr. Debag cared little about education and thought nothing of pulling Mr. Hilton out of

school. When the family moved. to Puerto Rico, then, they did not enroll Mr. Hilton in school

there. Ms. De bag tried to enroll Mr. Hilton in correspondence school, but she never got the paper

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work in. Mr. Hilton was expected to help Mr. De bag because Mr. Debag had been working since

before he was ten and wanted the same for Mr. Hilton. In Puerto Rico, Mr. Hilton was with Mr.

Debag when Mr. Debag was beaten by other horse trainers. Mr. Debag almost died in the beating

and was hospitalized.

Mr. Hilton and Mr. and Ms. De bag returned to Florida when Mr. Hilton was fourteen. They

lived in Miami Beach first, where Mr. Hilton fell out of a tree and broke every bone in his hand.

He did not tell his mother until later that night when he had to tell her because his hand was so

swollen. They moved to Hialeah, Florida next That year, he got a persistent rash in his genital

area. Ms. Debag treated it at home with boric acid. She also got the same rash, but hers was

treated when she went to the doctor for an unrelated surgery.

Around this time, Mr. Hilton started dating Sandy Herman, a classmate ofhis. They mostly

hung out after school and did homework together. Mr. Hilton's other friend at that time, Leonard

Scalfani, was two years older than him and had been held back a few times. Otherwise, Mr. Hilton

did not really socialize with any other students. Ms. Herman went to Mr. Hilton's home a few

times, and she met both of his parents. Ms. Debag was nice to her, but Mr. Debag was distant.

She wa~ not sure if he just did not know much English or if it was his personality, but he would

only say hello to her and not much else.

In 1961, Mr. and Ms. De bag separated. This was one of seven times that this happened.

Mr. Hilton and his mother moved into a one bedroom apartment in a moteL On September 5,

196!, Mr. Hilton stopped off at the apartment to try and reconcile with Ms. Hilton. Mr. Hilton

told Mr. De bag to go away, but Mr. Debag refused. Mr. Hilton threatened to call the police if Mr.

Hilton would not go, but this did not faze Mr. Debag. Mr. Hilton had a gun that he had borrowed

from a friend, so next he threatened to shoot Mr. Debag. Mr. Debag still did not leave and

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encouraged Mr. Hilton to shoot. Mr. Hilton aimed at Mr. Debag's lower stomach and shot him

there. Ms. Debag chose her husband over her son because she talked to a counselor who said it

was her duty to be loyal to her husband. Mr. Hilton was taken into juvenile custody, and the

attorney appointed to represent him made sexual passes at him and paid him for sex. Mr. Hilton

ultimately ended up staying with the Kellers, family friends who offered to take Mr. Hilton in.

They became his foster parents temporarily.

While Mr. Hilton was in foster care, Ms. Herman went with Ms. Debag to buy a set of

drums for Mr. Hilton. He taught himself to play and started playing with a band, The Famous

Yell ow Jackets.

The shooting was in the local papers. Ms. Herman broke up with Mr. Hilton right after.

She changed schools, and the two of them just stopped talking. Mr. Hilton was devastated, and he

had a breakdown. He was admitted to Jackson Memorial Psychiatric Unit. After his release from

that unit, he moved in with Margarite and Thomas Perchoux for six months. Margarite Perchoux

worked with Ms. De bag at the time. They lived two blocks away from Ms. Debag, but Ms. Debag

never came to visit her son. She also did not assist financially.

Ms. Debag left Mr. Debag again shortly after, and Mr. Hilton left the Perchouxs to move

back in with his mother. Ms. De bag took Mr. Hilton to Atlanta with her to meet an aunt who was

ill. While there, Mr. Hilton met a young woman around his age, Beverly Hilton, who had the same

last name. When Mr. Hilton told his mother, she went to see Ms. Hilton's mother Verna and

discovered that William Hilton had married Vema Hilton while still married to Ms. De bag. Mr.

Hilton was learning for the first time that he had a sister.

When they returned to Florida in 1963, Mr. Hilton taught himself to play the drums and

struted playing in a band. This was one of the few times Mr. Hilton seemed happy. Usually, he

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was brooding about his horne life. When he played in the band, though, he became a different

person and was in a better mood, although he also bragged a lot about his drum skills.

After Mr. Hilton joined the band, they usually practiced at Mr. Hilton's house because his

mother and stepfather were rarely home. Even though they practiced there several times per week,

one of Mr. Hilton's bandrnates recalls that he only saw Mrs. Debag a few times and Mr. Debag

once. The few times that Mrs. Debag was around, she and Mr. Hilton had an unusual relationship

and would yell at each other.

The band would play at various clubs. Mr. Hilton drank and smoked marijuana after the

gigs. This was the only time Mr. Hilton really communicated normally, since the marijuana

mellowed him out.

In general, Mr. Hilton had a high opinion of himself and tried telling others how smart he

was. He did not really have friends so much as acquaintances, and he tried to be sociable but was

very socially awkward. Because ofthis, the band members carne and went. Mr. Hilton was critical

of his bandmates, as he was with others, so a lot of the members quit.

During this time, Mr. Hilton was still upset about his home life, and at times he would stay

with other people. This included a stay an attorney who represented Mr. Hilton on one of his

juvenile charges. The attorney was a male much older than Mr. Hilton, who was around fifteen or

sixteen at the time. One of Mr. Hilton's bandmates, Roy Cave, knew that Mr. Hilton continued to

spend time with this attorney after the case was over. The three of them went to a bar one time,

and they got a motel room with two rooms afterward. Mr. Hilton stayed in the room with the older

attorney, and they had sex. When Mr. Cave confronted Mr. Hilton about this later, Mr. Hilton

explained that his attorney was giving him a place to stay and money or drugs.

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 Mr. Hilton eventually went on to join a more experienced band. He answered an ad in the

Miami Herald for a band that was looking for a drummer. Mr. Hilton was selected, and he dropped

out of school. He was making money and working late hours, so his mother consented. Mr. Hilton

was only sixteen, however. When the band found out, they had to let him go.

4. As Mr. Hilton grew into young adulthood, he had several psychiatric

incidents and developed addictions to multiple substances

With no job and no high school degree, Mr. Hilton decided to join the army. He was only

seventeen, so his mother had to sign a waiver. She did so even though she still described his

behavior as "infantile."

Mr. Hilton went to go say goodbye to Ms. Herman before he le.ft, although they had not

spoken in a while. He showed up at her school during the lunch hour. Mr. Hilton told her that he

had been staying with an older man, and that this man had been making sexual passes at him.

While he did not explain who this man was to Ms. Herman, this was likely the older attorney that

Mr. Cave had seen with Mr. Hilton. Mr. Hilton told Ms. Herman that he was starting to like it and

thought he should get away.

In the army, Mr. Hilton was able to earn his G.E.D. He also continued his passion for

drums and was assigned as the dmmmer while they marched. He trained as a paratrooper and had

to jump out of a plane for his graduation. During his military training, Mr. Hilton also developed

a fascination with weapons. He requested to join the Special Forces. He was in a secret unit, the

Davie Crockett Division, which transported nuclear weapons from trucks. Everyone in the unit

had to have a high IQ to get in. Mr. Hilton still did not fit in with the rest of his unit, though. The

unit only had about fifteen members, so the rest of the guys would hang out with each other and

get to know each other. Mr. Hilton was an outcast. He would talk about things that nobody else

wanted to talk about, and he spoke very rapidly. He always wanted to talk about how smatt he

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was and how he thought he would eventually end up in Special Forces. During this time, Mr.

Hilton was stationed right on the border of communist Eastern Germany.

In 1967, Mr. Hilton spent four and a half weeks in the United States Army Medical Center

Psychiatric Hospital. He said he was losing interest in the military and reported hearing voices.

Eventually, Mr. Hilton was found unfit to be in the military, and he was honorably discharged.

Mr. Hilton met his first wife, Ursula, when he was in Germany. They married in 1968.

After his discharge, Ursula moved back to the United States with Mr. Hilton, and they lived in an

apartment with Mr. and Ms. Debag. They divorced in 1971 due to irreconcilable differences, and

Ursula would later pass away of cancer in 2001.

Soon after his divorce, Mr. Hilton started dating Paulette Goldman. She introduced Mr.

Hilton to Quaaludes, and he became addicted. He confided in Ms. Goldman that his mother had

molested him when he was younger.

Mr. Hilton moved to Atlanta in 1973 where he started working as a telemarketer. A young

woman, Dina Evonne Baugh, came into the company he worked for in 1976 looking for a job. She

moved in with Mr. Hilton almost immediately. She had a son, Cameron, from a previous marriage,

and Cameron lived with them. Mr. Hilton encouraged Ms. Baugh to get her realtor's license.

When she went to get her diploma from the realtor's office, a woman passed out in the lobby. Mr.

Hilton did not even hesitate in performing CPR on the woman. A year after they met, Mr. Hilton

and Ms. Baugh got married. He took to being a stepfather was the homeroom dad for Cameron's

class. However, Mr. Hilton also started drinking heavily. He started drinking to get off the

Quaaludes. He would start one addiction to get over another, and he was soon an alcoholic.

In 1977, Mr. Hilton started a company called Green Light Advertising. He circulated

brochures that had other people's advertisements printed on them. After the starting the company,

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he went to the doctor to get help for his alcoholism. The doctor prescribed Antabuse, a medicine

that is supposed to cause unpleasant effects when any alcohol is consumed.

The marriage to Ms. Baugh was shmt-lived, and they divorced six months after they

married. Mr. Hilton cried when he signed the divorce papers. He continued to live with Ms. Baugh

for another tour months until he found somewhere else to live. Ms. Baugh kept Mr. Hilton's name

after the divorce.

In January 1979, Ms. Goldman came to see Mr. Hilton in Atlanta. They had not seen each

other for six years. She was still addicted to drugs. She stayed with him for a week before leaving,

and they did not see each other again after that.

Mr. Hilton was an avid runner, and he started running at Stone Mountain Park in Stone

Mountain, Georgia. He fell in love with a police officer, Sue Ellen Edwards, who worked there.

They married in March 1979, two or three months after they met. Mr. Hilton was Ms. Edwards'

fourth marriage. She had two children from a previous mmTiage, and Ms. Edwards thought that

Mr. Hilton did a good job of walking into a full fmnily. They bought a house using Mr. Hilton's

Veteran's Affairs loan. They divorced seven months later, however. Even after the divorce, they

continued to talk whenever Mr. Hilton was in Stone Mountain.

After the divorce, Mr. Hilton moved to an apartment building in Tucker, Georgia. He met

a fifteen-year-old girl, Shawn Stewart, who lived in his building. Ms. Stewart's mother was the

building manager. Ms. Stewart was on her school's volleyball team, and she and Mr. Hilton started

running together. Mr. Hilton was also friends with Ms. Stewart's mother. Ms. Stewart saw Mr.

Hilton as a father figure. Even when she left for college a few years later, she would still stay in

touch with him over the phone.

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 In 1982, Mr. Hilton went with his mother to visit his maternal uncle and uncle's wife in

North Carolina. The two women went shopping, and Mr. Hilton stayed with his uncle. While

they were there, Mr. Hilton's uncle made sexual passes at him.

Mr. Hilton continued to make other friends during this time. He met Connie Wagoner in

1983, and he moved in with her and her children. Ms. Stephanie Durham Brim, Ms. Wagoner's

daughter, was about eleven when Mr. Hilton first moved in. He would spend time with her and

taught her how to shoot a bee bee gun. Mr. Hilton started using Quaaludes again when he was

living with Ms. Wagoner. He was eccentric because he was so bubbly and over-the-top, but Ms.

Brim enjoyed having him around. When Mr. Hilton and Ms. Wagoner broke up, it was a peaceful

break and Mr. Hilton moved out. Ms. Wagoner and Ms. Brim went to visit Mr. Hilton in Atlanta

a few years later just to see how he was doing.

Mr. Hilton was still drinking heavily, and he also started using LSD, marijuana, and other

drugs. His mother refused to come visit him during that time because of his drug use. Also around

this time, Mr. Hilton started running a charity scam. He would call people asking for donations

for his charity, but he was really using the money for himself. He was very good at this, though,

and able to malce a living. Mr. Hilton would stop drinking for good in 1989.

Mr. Hilton randomly decided to reach out to his old high school sweetheart, Ms. Hennan.

He called her parents' house and pretended to be an alumni of her high school or college. They

gave Mr. Hilton her home phone number. He called her one day and they had a brief ten minute

conversation where they just caught up on each other's lives. Then Mr. Hilton made an

inappropriate sexual comment, and Ms. Herman hung up on him.

In 1984, Mr. Hilton retained a lawyer, Samuel Rae!, on a minor charge. Mr. Rae] got Mr.

Hilton out of the charge, and Mr. Hilton was very appreciative. He started offering to help Mr.

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Rae! file things or giving Mr. Rae! rides to his meetings. Mr. Rae! found Mr. Hilton endearing,

and the two became friends. Mr. Hilton continued to act strangely. When Mr. Rae! put his house

up for sale and had a house tour, Mr. Hilton went and made up outrageous facts about the house.

He told people that Martin Luther King, Jr. had given a speech there and that it had ties to the Civil

War. Mr. Hilton was such a good salesman that people believed him, and it was typical for Mr.

Hilton to exaggerate in this way.

Mr. Rae! and another one of his friends started working on a movie about a serial killer up

in Alaska. Mr. Hilton took an interest in the project. Mr. Rae! gave him small tasks to do around

the set. Later, Mr. Hilton tried to claim more credit for the movie.

Mr. Rae] had. a dog when he became friends with Mr. Hilton, and Mr. Hilton was wonderful

with the dog. He would play with the dog and give it hugs and kisses. He would bring around

more expensive brands of dog foods for the dog. He go out and get dog food even when it was

snowing. That dog passed away, and around 1990, Mr. Rae! got a golden retriever named Yuppie.

Mr. Hilton treated Yuppie the same way he treated the other dog; he loved him. When Yuppie

was almost a year old, he suddenly went missing from Mr. Rael's backyard. Mr. Hilton was

furious and helped Mr. Rae! hang up posters around the neighborhood and search for the dog.

They were not able to find Yuppie. Mr. Hilton also gradually stopped talking to Mr. Rae! around

this time. They went from talking every day to not talking at all. About a year after Yuppie went

missing and Mr. Hilton stopped talking to Mr. Rae!, Mr. Rae! was driving around Atlanta when he

saw Mr. Hilton out running. Mr ..Hi.lton had a dog with him, a dog that looked exactly like Yuppie.

Mr. Hilton continued his life with his dog, now called Ranger. Mr. Hilton was religious

about keeping up with Ranger's shots, and people who observed him during this time said that he

fawned over Ranger. Mr. Hilton took Ranger on vacation with him, including a trip to Washington,

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D.C. in 1994. Mr. Hilton went to find the names of the men he had served with. One of these men

had died on his first day of service in Vietnam. Mr. Hilton found it hard to find places that rented

to dog owners. He started living in storage facilities whenever he could not find a place.

However, Mr. Hilton was also very obsessed with his dog. He collected Rangers' fur in

Ziploc baggies and documented where the fur had been collected from. He noted the dates that he

opened and closed the Ziploc baggies. He kept ajoumal of Ranger's activities, down to the date

and time that Ranger would do trivial things, such as catching a ball.

In 1997, Mr. Hilton was arrested. His mother and Mr. Debag had just been scarnmed out

of $10,000, so they did not have the money to bail .him out. Mr. Hilton was upset that his mother

had paid for the scam and would not pay for her own son to get out of jail. He called his friend

Shawn Stewart, whom he was still friends with. She bailed him out.

Mr. Hilton then went and got a job with John Tabor. He worked on and off for Mr. Tabor's

company, Insulated Wall Systems, for the next ten years. Mr. Hilton's job was to find leads on

people who needed vinyl siding, and Mr. Tabor would do the installation. Mr. Hilton lived in a

house in Chamblee whenever he was working and then stayed in the storage facilities when he was

not. At other times he was homeless or lived out of his van. On April 12, 2000, Mr. Hilton was

homeless when a tornado hit Atlanta. He had to find shelter in a Motel 6 in Norcross. He also

went off into the woods to live for months.

During his time working for Mr. Tabor, Mr. Hilton had confrontations with his co-workers

and other people who worked in the area. One of his co-workers in the late 1990s, Ms. Parrott,

did what she could to avoid him because of his mood swings. He changed daily and sometimes

hourly. When he was upset, he would slam doors and start cursing. He was on the phone trying

to get leads for Mr. Tabor, and he would scream at people and hang up on them if they refused Mr.

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Tabor's services. Ms. Parrott had been with the company longer than Mr. Hilton and was supposed

to train him, but he would get upset with her if she tried to correct him on anything. Mr. Hilton

also came to work high on marijuana a lot.

Another woman who worked in the area, Barbara Speed, worked in an office next to Mr.

Tabor's business for twelve years. Mr. Hilton would come in and ramble on for hours. lt was

difficult for her to have a conversation with him because he would bounce around between topics

so much. Even though they did not know each other very well, he would make strange requests

of her, such as asking her to do his laundry or look up people he knew in the military. Mr. Hilton

was also very territorial. She saw him putting up barricades in the parking lot to try and block

people from parking near the building.

Ranger died in 2002. Mr. Hilton was devastated. He started looking through obituary

pages because he found comfort in reading about other people who had suffered loss. Mr. Hilton

was depressed, and he told multiple people, including mere acquaintances, that he was

contemplating suicide. He still had the bags of Ranger's fur and planned to make a blanket out of

it someday. He also kept Ranger's skin and bones in a tub. He had all of Ranger's toys. He had

taken thousands of pictures.

In 2003, Mr. Hilton was still distraught over Ranger's death. He saw an ad for a golden

retriever puppy and bought Dandy. Mr. Hilton took Dandy to the same places he had taken Ranger.

He started documenting Dandy's behavior and collecting Dandy's fur in the same way that he had

with Ranger.

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 5. When Mr. Hilton started taking wrongfully prescribed medications,
Ritalin and Effexor, his psychological impairments made him that
much more susceptible to their effects, culminating in a mental break
and the 2007 string of crimes

In the early 2000s, Mr. Hilton's mental health started deteriorating rapidly. He regularly

frequented Candler Park in the Atlanta area, and he had run-ins with other people at the park. He

would yell at people for having their dogs off leash and threaten them and/or their dogs if they got

too close to Dandy. He would get right in people's faces to yell at them. He would make

inappropriate sexual comments in front of women, and he usually chose to talk to women instead

of men. He carried around a baton, and sometimes he had a stick that he sharpened into a knife.

Some ofthese people were afraid of Mr. Hilton and called the police.

In 2005, Mr. Hilton became convinced that he had multiple sclerosis. He found an

endocrinologist, Dr. Harry Deicher, in the yellow pages and started going to him for prescription

medication. Dr. Deicher noted that he had multiple sclerosis, without doing the requisite testing,

and prescribed Mr. Hilton with medications like Ritalin and terazosin. He later prescribed Effexor.

The prescription that Dr. Deicher gave to Mr. Hilton was more than three times the dose

recommended by the FDA. He started telling anyone who would listen, including strangers, about

his multiple sclerosis diagnosis. One of the people that Mr. Hilton called to tell about his diagnosis

was his ex-wife Ms. Edwards. He called her to explain that he had told his mother about the

diagnosis, and his mother had blown it off.

Once Mr. Hilton was on the Ritalin, his behavior became even more bizarre than before.

He became paranoid that Mr. Tabor had stolen $10,000 from him, despite the fact that Mr. Tabor

had loaned him money throughout the years which Mr. Hilton had not repaid. He and Mr. Tabor

got into arguments over the money, and Mr. Hilton left his job. He continued to contact Mr. Tabor

about the money, until finally Mr. Tabor wrote him a check for $2,500 to get him to go away. Mr.

22

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Tabor included a strongly-worded letier with the check, so Mr. Hilton returned the letter and tore

the check in pieces. He showed up at Ms. Stewart's place of employment and asked her for money.

He was spoke even faster than he usually did. He had lost a lot of weight and some of his teeth

were missing. He told Ms. Stewart that he had quit his job and asked for $800. She gave him the

money because he had given her almost the same amount years before without any hesitation. She

was also afraid and wanted him to leave.

Mr. Hilton left to go camping then.. At all three of the campsites where the crimes. were.

committed, witnesses described him as a bizarre man. He paced back and forth, mostly talking

only to himself, almost as if he was in a trance. When he spoke to other people, he was rambling

and changing topics very suddenly. He tried to convince people to come off the path with him. He

was frustrated and ranting about problems he had with the park. Mr. Hilton was wearing an

outdated nylon suit.

After the crimes, the police were still searching for Mr. Hilton, and Ms. Stewart saw his

picture on tl1e TV. Mr. Hilton called her for money one more time. This time, she told him no

and called the police as soon as she hung up.

B. Trial counsel's barebones mitigation presentation was deficient because it

focused almost entirely on the effects of the Ritalin without adequately
explaining how Mr. Hilton's background and mental impairments made him
especially vulnerable to the effects of Ritalin overdose

Despite the abundance of mitigation evidence trial counsel's mitigation specialist had

uncovered, trial counsel inexplicably failed to present it during ilie penalty phase. Shortly before

the guilt phase, Robert Friedman, lead counsel during the penalty phase, had mentioned to Andy

Thomas, then Deputy Public Defender, that he was going to streamline the penalty phase and call

in just as many witnesses as he needed to thread the story together. Right before the guilt phase

started, Betty Fuentes, the mitigation specialist, found out iliat this meant not calling Dr. Deicher,

23

505
the doctor who had over-prescribed Mr. Hilton's medications. Ms. Fuentes quit the case at that

time because of her frustration with Mr. Friedman's strategy. She had been working on a life

histoty presentation, so two of the other team members, attorney Paula Satmders and fact

investigator Chris EHrich, had to rush to complete the presentation at the last minute.

Once the penalty phase started, Mr. Friedman "streamlined" the penalty phase by relying

mostly on expert testimony. Trial counsel obtained four expert witnesses to testify at the penalty

phase. Several crucial factors in Mr. Bilton's life were briefly mentioned once by an expert

without any kind of explanation and details, including but not limited to, the emotional abuse that

Mr. Hilton suffered at the hands of his mother and stepfather, his admission into a psychiatric

hospital, the sexual abuse he suffered as a juvenile at the hands of his attorney, genetic disorders

within the family, Mr. Hilton's history of delusions and hallucinations, and his years-long battle

with rheumatic fever when he was a toddler. All of these warranted further detail and supporting

documents, but trial counsel merely relied on experts' brief references.

Other lay witnesses filled in a few superficial details, mostly via video testimony or over

the phone. By the end of the penalty phase, the jury had not heard much of Mr. Hilton's life

history. The lackluster penalty phase presentation failed to go into: I) the multigenerational

history of mental illness in Mr. Hilton's family; 2) the stark contrast between Mr. Hilton's mother

smothering him as a young child and then neglecting him after her remarriage; 3) Mr. Hilton's

repeated attempts at self-mutilation and/or suicide dating back to age five; 4) the various physical

illnesses that affected Mr. Hilton's mind as a child; 4) his years-long battle with substance abuse

as an adult; and 5) Mr. Hilton's impaired mental state and gradual deterioration throughout his life

that left him vulnerable to the effects of Ritalin overdose. Thus, in comparison to the information

24

506
that was available, trial counsel precluded the jury from hearing how Mr. Hilton got to where he

was by the time of the crime.

C. Trial counsel's performance was deficient because they did not investigate Mr.
Hilton's life history, and they failed to present this mitigating evidence that
they did have

To establish ineffective assistance of counsel, Mr. Hilton must show that trial counsel's

performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This occurs

when "counsel's representation fell below an objective standard of reasonableness" under

prevailing professional norms. Id at 688.

By the time of Mr. Hilton's trial in 2011, it was clearly established law that defendants in

capital cases are entitled to an individualized sentencing at the penalty phase. See e.g., Lockett v.

Ohio, 438 U.S. 586, 605 (1978) ("[A]n individualized decision is essential in capital cases.");

Woodsonv. North Carolina, 428 U.S. 280,304 ("[W]e believe that in capital cases the fundamental

respect for humanity underlying the Eighth Amendment ... requires consideration of the character

and record of the individual offender and the circumstances of the patticular offense as a

constitutionally indispensable part of the process of inflicting the penalty of death."); Raulerson v.

Wainwright, 732 F.2d 803,806 (lith Cir. 1984); Barnes v. State, 29 So. 3d 1010,1025 (Fla. 2010).

This is achieved by allowing the jury to "consider all relevant mitigating evidence." Blystone v.

Pennsylvania, 494 U.S. 299, 307 (1990). Necessarily, counsel in capital cases have a duty to

reasonably investigate and develop mitigating evidence and present that evidence to the jury. See

Rornpilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 521-22 (2003);

Williams v. Taylor, 529 U.S. 362, 396 (2000); Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.

1994) (counsel has a "duty to investigate, develop, and present mitigating evidence"); Spann v.

25

507
State, 985 So. 2d 1059, 1069 (Fla. 2008) ("An attorney in a capital case has a duty to investigate

and present to the court and the jury, when applicable, the mitigating evidence found to exist.").

In addition to the abundance of case law on counsel's penalty phase responsibilities,

professional norms at the time of trial were also clearly developed. The American Bar Association

had provided multiple guidelines requiring counsel in capital cases to investigate the client's life

history "from conception to the time of sentencing," 2003 Guideline lO.ll(F)(l); meet with

potential witnesses in face-to-face, one-on-one interviews, often more than once, 2008 Guideline

lO.ll(C); and hire a mitigation specialist, 2003 Guideline 4.1. This is in addition to the general

requirement that defense counsel in any case provide zealous advocacy to their clients. Criminal

Justice Standards for the Defense Function 4-1.2(b), Fourth Ed. While the ABA standards are

only guides, they may still help the courts in determining what reasonable professional judgment

was at the time of trial. See Wiggins, 539 U.S. at 524; Strickland, 466 U.S. at 688-89.

Where trial counsel did discover certain evidence but did not present it, "then a

determination must be made whether the failure to put this evidence before the jury was a tactical

choice by trial counsel." Porter, 14 F. 3d at 557. Judicial review of counsel's performance is

"highly deferential," and courts "must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance." Jd at 689. Accordingly, "strategic

decisions do not constitute ineffective assistance of counsel if alternative courses have been

considered and rejected and counsel's decision was reasonable under the norms of professional

conduct." Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).

Courts have found counsels' actions unreasonable even where the defense team did

conduct a thorough investigation of their client's background but did not present the mitigation at

trial, made an inadequate presentation, or did not prepare the witnesses to testify. This is because

26

508
the faiJLU'e to present available mitigating evidence "prejudices a convicted defendant's receiving

an individualized sentence." Hardwick v. Crosby, 320 F.3d 1127, 1163 (1 Ith Cir. 2003).

For example, in Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991), the defense only

presented two witnesses in addition to their client at the penalty phase. !d. at 1016. The lawyers

in the case did not interview these witnesses until the day before and the day of trial, and they

spoke only for a few minutes. !d. at 1017. Once one of the witness took the stand, they only asked

him six questions. ld. At an evidentiary hearing on state post-conviction, it was revealed that the

witness had much more information than had been asked at trial. !d. A head il'\iury the defendant

had suffered was mentioned "only in passing." I d. at 1018. Trial counsel completely avoided

other topics, such as the defendant's intellectual disability. I d. The Eleventh Circuit found that

this undermined "[t]he primary purpose of the penalty phase ... to inslU'e that the sentence is

individualized by focusing the particularized characteristics of the defendant" and granted penalty

phase relief. !d. at I 019.

Similarly, the Florida Supreme Court vacated a death sentence in Parker v. State, 3 So. 3d

974 (Fla. 2009), where the defense presented a "bare bones" penalty phase and presented the

defendant's life history through the secondhand testimony of defense team investigators rather

than firsthand witness accounts. See id. at 984-85. At first glance, evidence presented during

Parker's penalty phase touched on many of the mitigation themes often found compelling:

These witnesses testified that Parker's childhood was chaotic and dysfunctional.
His father abandoned the family when Parker was only a few months old; his
mother was frequently hospitalized for serious mental problems; he spent his
childhood in a series of foster homes; he was physically and sexually abused; and
he has a long history of alcohol abuse and violent behavior.

!d. at 983-84. During the Rule 3.851 evidentiary hearing, however, more details were provided to

support these broader themes. For example, the mother's "serious mental problems" were actually

27

509
an ongoing battle with schizophrenia for which she was repeatedly hospitalized. !d. at 984. The

sexual abuse that had briefly mentioned at trial was at the hands of caretakers and older children

in the community. !d. Moreover, this information came from the actual witnesses rather than the

secondhand testimony of defense investigators. !d. The Florida Supreme Court found this

"fleshed out" evidence should have led to further investigation and been presented at the trial. See

id. at 985. Thus, it is not enough that counsel conduct an investigation and present a brief summary

of a client's life history. The failure to actually present that life history in a manner that resonates

with the jury and provides meaning to the right to individualized sentencing is deficient.

Here, trial counsel's performance was deficient. Much like Cunningham and Parker, the

pre-trial investigation revealed a number of themes for the defense to go into during the penalty

phase, including: !) the multigenerational history of mental illness in Mr. Hilton's family; 2) the

stark contrast between Mr. Hilton's mother smothering him as a young child and then neglecting

him after her remaniage; 3) Mr. Hilton's repeated attempts at self-mutilation and!or suicide dating

back to age five; 4) the various physical illnesses that affected Mr. Hilton's mind as a child; 4) his

years-long battle with substance abuse as an adult; and 5) Mr. Hilton's impaired mental state and

gradual deterioration throughout his life that left him vulnerable to the effects of Ritalin overdose.

However, trial counsel did not present evidence on any of these subjects, choosing instead to

cmsorily summarize Mr. Hilton's childhood and focus on his head injury after the Murphy bed

incident and the effects of the Ritalin overdose.

Trial counsel completely failed to investigate some major areas altogether. For example,

they never did a multigenerational review of mental illness in Mr. Hilton's family. See 2008 ABA

Guideline I O.!l(E)(2)(a) (recommending review extending at least three generations back). They

also failed to investigate Mr. Hilton's time in the military and the effect this had on him mentally.

28

510
 Rather than calling the lay witnesses who had firsthand accounts about Mr. Hilton's life,

trial counsel relied heavily on experts to present this information. However, trial counsel had not

provided their experts with relevant background materials so that the experts could conduct an

accurate examination of Mr. Hilton's mental health history. They did not provide the experts with

a multigenerational mental and physical health history for Mr. Hilton's relatives. During

discovery, the defense had received Georgia Bureau of Investigation photos documenting Mr.

Hilton's obsession with his dogs, including a plastic container holding his deceased dog's remains;

Ziploc baggies filled with years of fur he had collected from both dogs as well as documentation

of where and when it had been collected; and detailed journals noting mundane activities, such as

fetching a ball. The experts did not receive this clear evidence of mental illness and were unable

to consider it in their assessment of Mr. Hilton. Consequently, the experts made vague passing

comments to just a few of the traumatic events in Mr. Hilton's life, and tl1ey focused mostly on the

Murphy bed incident and the Ritalin prescriptions.

Despite trial counsel's reliance on their experts, they failed to prepare their experts before

the penalty phase. One expert, Dr. Wu, testified to Mr. Hilton's exaggerated participation in the

making of a movie. He testified that he believed this claim to be false and that it demonstrated

Mr. Hilton's grandiosity. R, Penalty Phase, 122. In reality, the movie in question, Deadly Rtm,

existed, and trial counsel had succeeded on a motion in limine to prevent mention of the violent

film that was produced twelve years before the crimes. After Dr. Wu's mistal,e, the State's expert

was able to go into the violent nature of the film, testify to its similarities to Mr. Hilton's crimes,

and tell the jury that Mr. Hilton actually had assisted in the making of the film. Trial counsel

missed an opportunity to remedy the situation by failing to cail Mr. Hilton's friend Samuel Rae!.

Mr. Rae! produced the film, and he would have been willing to testify that Mr. Hilton had a very

29

511
minor role ofrunning errands around the set, that he became involved in the film after the script

had already been written, that the story was based on a case up in Alaska, and that the crimes in

the movie bore no resemblance to Mr. Hilton's crimes beyond the fact that they took place in the

woods. The failure to prepare Dr. Wu or fix his blunder with Mr. Rael's testimony allowed more

aggravating evidence against Mr. Hilton and affected Dr. Wu's credibility. Finally, trial coU!lsel

called Dr. Strauss to testify to Dr. Deicher's unethical behavior in over-prescribing Mr. Hilton.

Because trial counsel had not properly vetted Dr. Strauss before hiring him, however, they did not

know that Dr. Strauss himself had been subjected to disciplinary action for unprofessional

prescription practices. See R, Penalty Phase, 265. Because trial counsel relied on these experts to

get in mitigating evidence about Mr. Hilton, the experts' decreased credibility reduced the

credibility of the life history they testified to.

Moreover, trial counsel did not make use of the witnesses they called. Roy Cave was

definitely available at the time of trial, as he was one of the witnesses who testified. However, the

defense merely asked him about his time in the band and boot camp with Mr. Hilton. See R,

Penalty Phase, 518-21. In reality, Mr. Cave had witnessed the older male attorney coercing the

sixteen-year-old Mr. Hilton into having sex with him, had infmmation about Mr. Hilton's bizarre

behavior even as a teen and his inability to make real friends, Mr. Hilton's substance use at such a

young age, and Mr. Hilton's rocky, argumentative relationship with his mother that left him in a

sullen mood almost all of the time. Trial counsel also called Ms. Sandy Herman, who dated Mr.

Hilton briefly in high schooL See R, Penalty 513-17. They asked her about how kindly he had

treated her in high school but did not ask her about Mr. Hilton's decision to join the anny because

of the strange relationship he had with an older male who was "propositioning" him for sex, or

Mr. Hilton's random decision to find her years after they had last seen each other and sudden

30

512
inappropriateness with her during that phone call. This information would have been relevant to

establishing Mr. Hilton's long history of mental illness and how vulnerable his mental state was

even before the Ritalin, but trial counsel simply did not present the evidence.

Finally, trial counsel elicited testimony that Mr. Hilton had diagnosed himself with

multiple sclerosis, see e.g., R. Penalty Phase, 120, but they never actually confirmed whether or

not he had it. They failed to do so despite the fact that multiple sclerosis testing could have helped

the defense no matter the result. Multiple sclerosis is a neurological disease and could have

affected Mr. Hilton's mental state. Alternatively, if Mr. Hilton did not have multiple sclerosis,

then he was exhibiting paranoia and frustration about a disease that he did not have, at times even

confronting complete strangers about his diagnosis.

By ignoring much of Mr. Hilton's history, the jury was unable to understand that Mr. Hilton

was in a vulnerable position mentally for much of his life rather than just after he started using

Ritalin, making him that much more susceptible to the effects of Ritalin abuse and overdose. This

nuance was especially important when Ritalin is a well-known drug, and the jurors likely

associated its use with helping to calm down children suffering from attention disorders. The jury

would not have understood its impact on a mentally vulnerable adult who became more manic

after its use. Trial counsel's failure to make this clear fell below an objective standard of

reasonableness and amounted to deficient performance.

D. Mr. Hilton was prejudiced by trial counsel's deficient performance.

Mr. Hilton must also show that he was prejudiced by trial counsel's deficient performance.

Strickland, 466 U.S. at 687. Prejudice exists where "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different." !d. at

694. In reaching a determination on prejudice, courts have looked not just at the achtal death

31

513
sentence imposed, but also whether or not certain mitigating factors were rejected, whether the

evidence would have rebutted certain aggravating factors, and whether reviewing courts relied on

the lack of evidence to affirm the conviction. For example, in Parker, the Flmida Supreme Court

reviewed new evidence presented during the Rule 3.851 evidentiary hearing and noted that on

direct appeal, it had affirmed the trial court's finding of no mitigating factors because there had

not been sufficient evidence to support such a finding. Parker, 3 So. 3d at 984.

Here, Mr. Hilton was prejudiced by trial counsel's deficiencies in not presenting

compelling, readily-available mitigation evidence. Mr. Hilton has suffered from severe mental

illness for most of his life, but the trial court rejected the statutory mitigating factor that Mr. Hilton

was substantially impaired and could not conform to the requirements of the law, and it rejected

the non-statutory mitigating factor that he suffered from severe mental defects. Despite the fact

that Mr. Hilton's mother made only $1.00 an hour and $25.00 per month and could not afford an

apartment for herself and her son, the trial court rejected the mitigating factor that Mr. Hilton grew

up financially poor. This is because while trial counsel quickly glazed over these aspects of Mr.

Hilton's life, they did not provide the necessary details to actually prove these mitigating factors.

This resulted in the court finding three fewer mitigating factors than actually existed, and Mr.

Hilton was prejudiced by the resulting death sentence.

Indeed, the defense's failure to present a fuller picture of Mr. Hilton's life history actually

assisted the State 's rebuttal presentation. Because the penalty phase defense suggested that the

Ritalin was the major catalyst for change in Mr. Hilton's behavior and he had been fine before

that, the State was allowed to call Dr. Prichard to testify about Mr. Hilton's prior tmcharged

offenses, including soliciting money for charity only to keep it himself and the tmproven hearsay

32

514
allegations that Mr. Hilton had inappropriately touched his ex-girlfriend's daughter. The trial court

admitted this testimony, specifically stating:

And I understand that there were a whole lot of things that carne out in the expert's
testimony that normally would be, you know, verboten, I mean.·- just couldn't do.

But the whole theme of the defense expert's testimony was that Mr. Hilton never
did anything wrong until these murders, and that it was a sudden change in his life
created by Ritalin that brought about- it was based on, you know, these medical
problems compow1ded by his brain damage. And I think that just kind of opens the
door. I think the State has the right to contest that this is in fact the situation.

R, Penalty Phase, 520. Thus, unlike in other cases where courts have found trial cow1sel 's

decision not to introduce mitigating evidence because of the possibility of opening the door

to harmful rebuttal evidence, see, e.g., Douglas v. State, 141 So. 3d 107, 121 (Fla. 2012),

here, trial counsel's .failure to present more expansive mitigating evidence allowed this

harmful evidence to come in. This prejudiced Mr. Hilton not only during his penalty phase,

where this evidence effectively rebutted the mitigation presented, but also on direct appeal.

The Florida Supreme Court affirmed the trial court's admission of Dr. Prichard's testimony

because "Hilton's penalty phase defense relied heavily on the assertion that Hilton was a

law-abiding citizen prior to his exposure to Ritalin. Dr. Prichard's testimony was provided

in rebuttal to that assertion." Hilton v. State, 117 So. 3d 742, 751 (Fla. 2013). Mr. Hilton

was doubly prejudiced by trial counsel's deficient performance, and he is entitled to a new

penalty phase.

Claim 2: Trial counsel was ineffective because the defense team was in complete disarray,
due to inconsistent preparation, a fractured and divisive team, unreasonable caseloads, and
the unreasonable strategic decisions that resulted

Many of the problems before and during the trial were a conseqllence of the chaotic nature

of the defense team assigned to Mr. Hilton's case. Throughout its representation of Mr. Hilton,

the team engaged in eruptive team feuding and w1dermined each other's strategies. This led to the

33

515
repeated shifting of roles, including in the weeks leading up to trial. This chaos reached its peak

when two of the team members withdrew from the case in the middle of the trial. The in-fighting

prevented them from providing the competent assistance of counsel required by the Sixth and

Fourteenth Amendments. Moreover, the high case load at the Public Defender's Office at the time

also affected trial counsel's ability to effectively represent Mr. Hilton. Accordingly, Mr. Hilton is

entitled to a new trial.

I. Trial counsel was ineffective due to the divisive nature of the defense team

When the Public Defender's Office was first appointed to represent Mr. Hilton, the office

assigned a standard team to the case: Ines Suber as lead counsel, Steven Been as second chair,

Betty Fuentes as mitigation specialist, and Chris EHrich as fact investigator. They started receiving

discovery, and Mr. Been soon left the division for unrelated reasons. This began a revolving door

of attorneys. Robert Friedman was brought in from the appeals unit to help out. Tracy Record

came in as second chair, but she left the unit within a couple months. Nicole Jamieson and

Merribeth Bohanon, two other young attorneys in the office, helped out with projects that came

up.

It became quickly apparent that this case needed to focus on the guilt phase. Ms. Suber

had successfully negotiated plea deals with the State in the past, but such an outcome was not

likely in this case. She continued to try and focused a lot of energy and resources on going through

the physical evidence and consulting with forensic experts. In the meantime, Ms. Fuentes started

an expansive mitigation investigation that would ultimately result in her speaking with over 300

witnesses.

As the discovery came in, Ms. Suber did not allow anyone else to have a full picture of the

case. She selected which team members got to go review the physical evidence, mostly relying on

34

516
Ms. Fuentes. Other team members made copies of what they did have, but there was no stlucture

or organization, and no one person other than Ms. Suber knew everything about the case. As a

result, many documents were lost or overlooked. The State started requiring the defense team to

sign a log whenever the prosecutors disclosed evidence after the third or fourth time that the

defense claimed not to have received discovery that had previously been disclosed.

Ms. Suber continued to focus on combating the forensic evidence, and the other team

members struted to disagree with her. Ms. Suber was also working long hours and had difficulty

sleeping. She went to the doctor and got a prescription for Ambien. Tbis helped her sleep, but she

suffered from adverse side effects where she would black out and not remember things she had

done after taking it. Other members of the team reported getting emails fl·om Ms. Suber in the

middle of the night, between 2:00 and 4:00 a.m. This happened on a regular basis, and the emails

were often rambling and vitriolic; she would chastise them for things they had and had not done.

There was also little communication with Mr. Hilton about the reality of the case against him. Mr.

Friedman was permanently brought into the team. He was supposed to serve as Ms. Suber's second

chair in the guilt phase, and then in the penalty phase, Mr. Friedman would serve as lead counsel

and Ms. Suber would be second chair.

Several of the members of the team went to talk to N arrey Daniels, the Public Defender.

They were concerned that Ms. Suber was wasting all her time and energy on the guilt phase, and

that she was going for a futile innocence strategy. Ms. Fuentes had already uncovered the evidence

of Mr. Hilton's downfall after becoming addicted to the Ritalin, and she thought that they should

incorporate that into the guilt phase. Then, even if it did not work to clear Mr. Hilton of first-

degree murder, it would lay the groundwork for the penalty phase. Ms. Daniels suggested that

they recommend this strategy to Ms. Suber, but Ms. Suber rejected this strategy. Ms. Fuentes was

35

517
so upset by this that she threatened to quit. Ms. Daniels, and others in the office, requested her to

stay and continue to help. They also reminded her that her place on the team was as an investigator,

and that she needed to do what the lead attorney asked.

In the summer of 2010, about six months before the trial was supposed to start, the team

was confident in getting a continuance. Ms. Suber had already booked a five week trip home to

visit her family, a trip she took every December. Right before they filed the continuance motion,

however, the case changed judges. Judge Hankinson denied the continuance, and they only had a

few months left to get their case together.

This caused a complete breakdown in the team. Ms. Suber was devastated that she would

not get to take her trip. She actually tried to go on a five-week trip anyway, but Ms. Daniels told

her she could not take such a long leave before this trial. The case was also not even close to

having a complete investigation. They had started on the minor motions and met with minor

witnesses, but they had not started reaching out to the more significant guilt phase witnesses yet

at all. Plus, there was still the argument over whether they should present some kind of mental

impairment defense or one of innocence.

Once it was clear that the team was not working together, Ms. Daniels put Ms. Suber solely

in charge of the guilt phase and Mr. Friedman solely in charge of the penalty phase. Ms. Daniels

also brought in Paula Saunders from the appeals unit. Ms. Saunders had worked smoothly with

Ms. Suber in the past, and Ms. Daniels thought that it would help Ms. Suber from feeling ganged

up on. The remaining junior attorney, Ms. Bohanon, started off doing tasks for both but ultimately

focused on the penalty phase.

After this shift, the team was completely fractured. Ms. Saunders uJtimately agreed with

Mr. Friedman, and she started working on pretrial motions and the penalty phase. Furthermore,

36

518
Ms. Suber felt that Ms. Saunders was there to get her spot on the case, so she did not trust Ms.

Saunders. Meanwhile, Ms. Saunders hoped that Ms. Suber would be able to keep going because

Ms. Saunders did not know enough about the case to take the lead in the guilt phase if Ms. Suber

got pulled from the team. Both sides developed their phases individually. They did not invite

each other to meetings, and they did not collaborate on a theme. Going into trial, the defense team

did not have a united strategy.

TI1e problems did not dissipate once the trial started. During jury selection, some members

of the team were upset because Ms. Suber requested more peremptory challenges because of the

mass amount of media attention, but then when the court granted them, she did not use them to get

people off of the case. Ms. Suber and Ms. Saunders argued various pretrial motions, and Ms.

Suber was ill-prepared and stumbling in court. She admitted as much, saying multiple times on

the record that they were not prepared to proceed to trial. Once, she even arrived late. Other

members of the team were shocked because Ms. Suber had been a great trial lawyer in the past and

was usually eloquent in her arguments to the court.

Once the guilt phase started, the consequences of having fractured phases really showed.

Ms. Suber introduced evidence that the penalty phase lawyers would have preferred stayed out.

Most importantly, she relied on the fully adversarial hmocence defense. She challenged the

overwhelming forensic and physical evidence, ignoring the fact that even if the jury ruled out one

piece, there was still so much left to consider. Ms. Suber also objected to minor issues, coming

off as overly combative. At one pomt, one defense counsel objected to another defense counsel.

Ms. Suber continued her bumbling presentation that had started in the pre-trial motions.

If possible, the penalty phase was even more chaotic. Shortly before the guilt phase, Robert

Friedman, lead counsel during the penalty phase, had mentioned to Andy Thomas, then Deputy

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Public Defender, that he was going to streamline the penalty phase and call in just as many

witnesses as he needed to thread the story together. Right before the guilt phase started, Betty

Fuentes, the mitigation specialist, found out that this meant not calling Dr. Deicher, the doctor who

had over-prescribed Mr. Hilton's medications. Ms. Fuentes quit the case at that time. She had

been working on a life history presentation, so Ms. Saunders and Mr. EUrich had to complete the

presentation.

Ms. Bohanon returned to court the next day to realize that nobody had informed Mr. Hilton

that Ms. Fuentes was no longer with the team, despite the fact that he was closer to Ms. Fuentes

than to anyone else on the defense team. Mr. Friedman and Ms. Saunders then told Mr. Hilton

that Ms. Fuentes was overworked and had had a breakdown. Ms. Bohanon told Mr. Hilton that

Ms. Fuentes had a strategic difference with the others and that she had left, so Ms. Saunders asked

her to leave the courtroom. Ms. Saunders accused Ms. Bohanon of undermining the relationship

with the client. She also believes she heard Ms. Bohanon telling Mr. Hilton that they were

providing ineffective assistance of counsel. This defeated the months of work they had put into

cultivating a relationship with Mr. Hilton, and Ms. Bohanon was banned from the courtroom. She

filed a motion to withdraw shortly thereafter.

Once the penalty phase started, Mr. Friedman "streamlined" the penalty phase by relying

mostly on expert testimony. The experts made vague passing comments to just a few of the

traumatic events in Mr. Hilton's life, and they focused mostly on the Murphy bed incident and the

Ritalin prescriptions. Other lay witnesses filled in a few superficial details, mostly via video

testimony or over the phone. Similar to the guilt phase, several of the witnesses testified to things

that the defense had successfully fought to keep out during the guilt phase.

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 This inability of the defense team to work as a unit on the case resulted in the defense

team's deficient performance. Because the team could not get along and multiple members left

the capital unit while the case was still going, those representing Mr. Hilton did not have time to

review the entire case file. Other than Ms. Suber, no one on the team saw the entire file because

she was possessive about it and would not let them see it. The constant rotation of team members

left the files disorganized, so no one knew where anything was. Some members, such as Ms.

Sanders, were appointed to the case right before trial, and others, namely Ms. Fuentes and Ms.

Bohanon, left abruptly in the middle of trial so that the other members had to quickly step in and

perform their work without a full understanding of the case. This division caused multiple mishaps

at trial. The team members working on the guilt phase had no idea what the team working on the

penalty phase was doing. The penalty phase team later felt that evidence was introduced in the

guilt phase that they would have preferred not to have before the jury. Then, as explained above

in Claim 1, in the penalty phase, a defense expert in the penalty phase bringing up evidence that

guilt phase counsel had successfully kept out through a motion in limine.

All of this chaos was not the effective assistance of counsel required by the Constitution.

Trial counsel's performance was deficient and prejudiced Mr. Hilton, see Strickland, 466 U.S. at

687, because he did not have a defense team that agreed on and united around a strategy, and trial

counsel was making decisions about the case without knowing all of the relevant information.

Accordingly, Mr. Hilton is entitled to a new trial.

II. Trial counsel was ineffective because they had an excessive workload at the time of
Mr. Hilton's trial, which prevented them from dedicating the necessary time and
resources to his case

The defense team was not working on Mr. Hilton's case in a vacuum, and the Public

Defender's Office had several other high proftle cases at the same time. The capital unit at the

39

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time comprised of Ms. Suber as lead counsel and whomever the Office appointed as her co-

counsel. Ms. Fuentes was the mitigation specialist, and Mr. Ellrich was the fact investigator.

These four were expected to handle all of the capital cases in the Second Judicial Circuit. At the

time, this included the Rachel Hoffman murder, another case that garnered extensive media

coverage and included a wrongful death civil suit. Another case the office had at the same time

as Mr. Hilton's case was out on St. George's Island, so the team had to drive nearly two hours out

of Tallahassee to meet with witnesses on that case. Ms. Bohanon and Ms. Jamieson were both

involved in that case. Another one of the cases involved an intellectual disability claim, so the

Office expended many resources on the development of that case. Under this pressure, trial

counsel requested multiple continuances once the trial started, all of which were denied.

This highly centralized workload onto such a small unit prevented the team from focusing

as much attention on Mr. Hilton's case as they needed to. The Florida Supreme Court "has

repeatedly recognized that excessive caseload in the public defender's office creates a problem

regarding effective representation." Public Defender, Eleventh Judicial Circuit of Fla. v. State,

115 So. 3d 261,282 (Fla. 2013). This is because "[w]hen excessive caseload forces the public

defender to choose between the rights of the various indigent criminal defendants he represents, a

conflict of interest is inevitably created." In reOrder on Prosecution ofCriminal Appeals by Tenth

Judicial Circuit Public Defender, 561 So. 2d 1130, 1135 (Fla. 1990). Indeed, the Florida Rules

Regulating the Florida Bar allow for counsel to withdraw from a case when "there is substantial

risk that the representation of 1 or more clients will be materially limited by the lawyer's

responsibilities to another client or a third person or by a personal interest of the lawyer." Rule 4-

1.7(a)(2).

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 Both trial counsel's failure to make use of this rule and the inadequate representation they

provided as a result were deficient performance and prejudiced Mr. Hilton. See Strickland, 466

U.S. at 687. The high workload prevented counsel from interviewing all of the witnesses they

needed to by the time the trial started, and they failed to review all of the documents in the case.

Indeed, they overlooked a report by a correctional officer who overheard Mr. Hilton confessing to

the crime to another prisoner and thus were surprised by his testimony at trial. Up Lmtil that point,

trial counsel's defense strategy had been that the State's case was based on circumstantial

evidence. The correctional oftlcer's testimony completely undermined their strategy, and had they

not overlooked the witness, they would have pursued a more sensible defense or at least would

have been prepared to rebut his testimony. This constituted ineffective assistance of counsel, and

Mr. Hilton's conviction and sentence should be vacated.

Claim 3: Trial counsel was ineffective for failing to present a cohesive, united defense in the
guilt and penalty phases

Trial counsel spent a majority of the guilt phase futilely trying to combat the overwhelming

forensic evidence in this case. Trial counsel's defense strategy was that the State's case was mere! y

circumstantial, and at some points they even suggested that witnesses had identified someone else

as the main suspect. See, e.g., R, Guilt Phase, 1533 (during closing argument, Ms. Suber reminds

the jury that witness testimony identified a taller man in his 40s rather than Mr. Hilton as the

perpetrator). Then, in the penalty phase, they presented evidence that Mr. Hilton had committed

this crime because he had a mental breakdown after Dr. Deicher over-prescribed rum Ritalin. See,

e.g. R, Penalty Pha~e 123 (Dr. Wu testifies that Mr. Hilton "was never violent li!Jtil he started to

get on Ritalin."). Because trial counsel presented a guilt phase defense that contradicted the

penalty phase defense, trial counsel rendered ineffective assistance of counsel and Mr. Hilton is

entitled to a new trial.

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 As previously explained in Claim 2, a majority of the defense team wanted to present a

guilt phase defense that Mr. Hilton was affected by the over-prescription of Ritalin. This would

have been much more reasonable than the denial of guilt the defense actually presented. Indeed,

this is the strategy recommended by the ABA Guidelines. See 2003 Guideline 10.10.1 ("(T]rial

counsel should formulate a defense theory. Counsel should seek a theory that will be effective in

connection with both guilt and penalty, and should seek to minimize any inconsistencies.").

However, Ms. Suber insisted that they go with an adversarial approach and try to undermine all of

the forensic evidence, despite the fact that the evidence in this case was overwhelming and that

even if she succeeded in diminishing one type of evidence, there was still an abundance of evidence

to establish Mr. Hilton's guilt. Trial counsel's decision to deny Mr. Hilton's guilt in the guilt phase

and then completely change messages and blame the Ritalin in the penalty phase diminished their

credibility before the jury during the penalty phase.

The Florida Supreme Court has refrained from finding ineffective assistance of counsel

where a defendant asserted that trial counsel should have presented mitigating evidence when that

mitigating evidence was inconsistent with the guilt phase theory. See, e.g., Blanco v. State, 963

So. 2d 173, 179 (Fla. 2007) (denying an ineffective assistance of counsel claim because "the

mitigators Blanco argue[d] should have been presented at his penalty phase [were] inconsistent

with his theory of the case: that he is innocent of [the] murder"). It stands to reason, then, that it

does constitute ineffective assistance of counsel for trial counsel to knowingly present inconsistent

guilt and penalty phases. Here, that is just what trial counsel did, and their representation was

ineffective. Mr. Hilton is entitled to a new trial under Strickland. See Strickland, 466 U.S. at 687.

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Claim 4: Defendant's death sentence violates Hurst v. Florida and Hurst v. State

Mr. Hilton's death sentence is unconstitutional under the Sixth and Eighth Amendments in

light of Hurst v. Florida and Hurst v. State. Both Hurst decisions apply retroactively to Mr.

Hilton's case under the Florida Supreme Court's decision in Mosley v. State, 209 So. 3d 1248 (Fla.

20 16). The Hurst decisions are also required to be applied retroactively to Mr. Hilton under federal

law. The State cannot meet its burden of proving beyond a reasonable doubt that the Hurst error

was harmless. Accordingly, for the reasons explained below, Mr. Hilton requests that this Court

vacate his death sentence.

A. Mr. Hilton's sentence is unconstitutional under Hurst v. Florida and Hurst v.

State.

Mr. Hilton's death sentence violates Hurst v. Florida and Hurst v. State. In Hurst v.

Florida, the United States Supreme Court held that Florida's capital sentencing scheme violated

the Sixth Amendment because it required the judge, not the jury, to make the findings of fact

required to impose the death penalty under Florida law. 136 S. Ct. at 620·22. Those flndings

included: (I) the aggravating factors that were proven beyond a reasonable doubt; (2) whether

those aggravators were "sufflcient" to justify the death penalty; and (3) whether those aggravators

outweighed the mitigation. Florida's unconstitutional scheme first required an advisory jury to

render a generalized sentencing recommendation for life or death by a majority vote, without

specifying the factual basis for the recommendation, and then empowered the sentencing judge

alone, notwithstanding the jury's recommendation, to conduct the required fact-finding. !d. at 622.

The Supreme Court held that before making its recommendation, the jury, not the judge, must

make the findings offact required to impose the death penalty under Florida law. !d.

In Hurst v. State, the Florida Supreme Court held that, in addition to the principles

articulated in Hurst v. Florida, the Eighth Amendment also requires unanimous jury fact-finding

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as to (I) which aggravating factors were proven, (2) whether those aggravators were "sufficient"

to impose the death penalty, and (3) whether those aggravators outweighed the mitigation. 202 So.

3d at 53-59. The Court made clear that each of those determinations are "elements" that must be

found by a unanimous jury beyond a reasonable doubt.Jd. at 57; see also Jones v. State, No. SC 14-

990, 2017 WL 823600, at *16 (Fla. Mar. 2, 2017). In addition to rendering unanimous findings

on each of those elements, the Court explained that the jury must unanimously recommend the

death penalty before a death sentence may be imposed. Hurst v. State, 202 So. 3d at 57 ("(B]efore

the trial judge may consider imposing a sentence of death, the jury in a capital case must

unanimously and expressly find all the aggravating factors that were proven beyond a reasonable

doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously

find that the aggravating factors outweigh the mitigating circumstances, and unanimously

recommend a sentence of death."). The Court further cautioned that, even if the jury unanimously

found each of the elements required to impose the death penalty satisfied, the jury was not required

to recommend the death penalty. !d. at 57-58 ("We equally emphasize that ... we do not intend

to diminish or impair the jury's right to recommend a sentence of life even if it finds the

aggravating factors were proven, were sufficient to impose death, artd that they outweigh the

mitigating circumstances.").

The Florida Supreme Court also ruled that Hurst claims must be subjected to individualized

harmless error review, and that the burden is on the State to prove, beyond a reasonable doubt, that

the Hurst error did not impact the sentence. !d. at 67-68. lfthe State is unable to make that showing,

this Court should vacate the death sentence.

Mr. Hilton's jury was never asked to make unanimous findings on any of the elements

required to impose a death sentence under Florida law. Instead, after being instructed that its

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526
verdict was advisory, and that the ultimate responsibility for imposing a death sentence rested with

the judge, Mr. Hilton's jury rendered only a generalized advisory recommendation to impose the

death penalty. The record does not reveal whether the jurors unanimously agreed that any

particular aggravating factors was proven beyond a reasonable doubt, or unanimously agreed that

those aggravators were sufficient to impose the death penalty, or unanimously agreed that those

aggravators outweighed the mitigation.

Accordingly, Mr. Hilton's death sentence violates the Sixth and Eighth Amendments in

light of Hurst v. Florida and Hurst v. State.

B. Hurst v. Florida and Hurst v. State apply retroactively to Mr. Hilton's case.

The Florida Supreme Cowt has found that both Hurst decisions apply retroactively to Mr.

Hiltons whose sentences were final after the United States Supreme Court decided Ring v. Arizona,

122 S. Ct. 2428 (2002), on June 24, 2002. Here, Mr. Hilton's conviction became final on

December 2, 2013, when the United States Supreme Court denied his petition for certiorari off

direct appeaL See Hilton v. Florida, 117 So. 3d 742 (2013). Thus, his sentence was final after

Ring, and Hurst applies retroactively to his case.

C. The Hurst error in Mr. Hilton's case was not harmless beyond a reasonable
doubt

Because Mr. Hilton's death sentence violates Hurst v. Florida and Hurst v. State, and those

decisions are retroactive to him, Mr. Hilton should be granted relieffrom his death sentence unless

the State can prove that the Hurst error was "harmless beyond a rea~onable doubt" In the Hurst

context, the Florida Supreme Court has defined "harmless beyond a reasonable doubt" as "no

reasonable probability that the error contributed to the sentence." Hurst v. State, 202 So. 3d at 68.

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527
 1. The State bears the burden of establishing harmlessness

The Florida Supreme Court has repeatedly held that the burden is on the State to prove,

beyond a reasonable doubt, that the Hurst error did not impact the Mr. Hilton's death sentence.

See Id at 67-68 ("[T]he burden is on the State, as the beneficiary of the error, to prove beyond a

reasonable doubt that the jury's failure to unanimously find all the facts necessary for imposition

of the death penalty did not contribute to [the] death sentence."). The "State bears an extremely

heavy burden" in this context. !d. at 68. A court's finding that a Hurst error was harmless will be

"rare." King v. State, No. SC!4-1949, 2017 WL 372081, at* 17 (Fla. Jan. 26, 2017).

2. The Florida Supreme Court has indicated that a unanimous jury

recommendation is a factor in Hurst harmless error analysis, but not
necessarily a dispositive factor in every case

The Florida Supreme Court has indicated that a unanimous jury recommendation is a factor

in Hurst harmless error analysis, but not necessarily a dispositive factor in every case. The Court

has emphasized this principle on several occasions. In Hall v. State, the Court stated that a jury's

unanimous recommendation "lays afoundation for us to conclude beyond a reasonable doubt" that

the Hurst error was ham1less, and then assessed other harmlessness factors, such as the "egregious

facts" of the case, reflecting a traditional harmless error analysis that evaluated the aggravation

and mitigation. No. SCIS-1662, 2017 WL 526509, at *22-23 (Fla. Feb. 9, 2017) (emphasis added).

Again in King v. State, the Court emphasiz.ed that the unanimous recommendation was not

dispositive, but rather "begins a foundation for us to conclude beyond a reasonable doubt" that the

Hurst error was harmless. 2017 WL 372081, at* 17 (emphasis added). In Woodv. State, No. SC!5-

954,2017 WL 411336, at *13 (Fla. Jan. 31, 2017), the Court indicated that a Hurst error in a

unanimous-recommendation case would-if the case were not already being remanded for

46

528
imposition a life sentence on proportionality grounds-require a remand for a new penalty phase

because the jury had been instructed to consider inappropriate aggravators.

More recently, in Jones v. State, the Court explained that the instructions to the jury, in

combination with the unanimous recommendation, allowed the Court to conclude that three of the

required elements for a death sentence had been satisfied-sufficiency of the aggravation, weight

of the aggravation relative to the mitigation, and the unanimous recommendation-but that an

individualized examination of the specific aggravators found by the judge was still necessary to

determine whether "the remaining element: that the jury unanimously and expressly find all the

aggravating factors that were proven beyond a reasonable doubt"-was satisfied. 2017 WL

823600, at *16 (internal quotes omitted). Thus, the Court has made clear that in some unanimous

recommendation cases the Hurst error was not harmless. Mr. Hilton's is such a case.

The Hurst error in Mr. Hilton's case should not be ruled harmless beyond a reasonable

doubt, not only due to the problems inherent in using the advisory jury's recommendation to infer

what fact-finding would have occurred in a constitutional proceeding, but also because the

circumstances of this case reflect, more other unanimous-recommendation cases the Florida

Supreme Court has addressed, a reasonable probability that the Hurst error impacted the sentence.

3. In Mr. Hilton's case, the jury's unanimous recommendation is

insufficient to reliably conclude that the jury would have unanimously
found all of the required elements in a constitutional proceeding,
particularly in light of the jury's beliefabout its role and the substantial
mitigation

In Mr. Hilton's case, the jury's unanimous recommendation is insufficient to reliably

conclude that the jury would have unanimously found all the required elements for the death

penalty satisfied in a constitutional proceeding, particularly in light of the jury's belief about its

role in sentencing and the substantial mitigation.

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 As a general matter, it is only logical that a unanimous pre-Hurst jury recommendation

does not serve as a complete bar to Hurst relief under the harmless error doctrine. After all, Florida

juries before Hurst, including Mr. Hilton's, made only a general recommendation to impose the

death penalty, without deciding if any of the other required elements had been satisfied. In Hurst

v. State, the Florida Supreme Court held that the jury must render unanimous fact-finding, under

a beyond-a-reasonable-doubt standard, on all of the required elements for a death sentence: (1)

which aggravating factors were proven, (2) whether those aggravators were "sufficient" to impose

the death penalty, and (3) whether those aggravators outweighed the mitigation. 202 So. 3d at 53-

59. The jury's unanimous findings on those elements must precede the jury's vote as to whether

to recommend a death sentence. See id. at 57 ("[B]efore the trial judge may consider imposing a

sentence of death, the jury in a capital case must unanimously and expressly find all the

aggravating factors that were proven beyond a reasonable doubt, unanimously find that the

aggravating factors are sufficient to impose death, unanimously find that the aggravating factors

outweigh the mitigating circumstances, and unanimously recommend a sentence of death.").

Therefore, even in cases where the jury unanimously recommended death, there is no way to know

whether the jury would have unanimously found all the other preceding elements satisfied beyond

a reasonable doubt. See Hall, 2017 WL 526509, at *24 (Quince, J., dissenting) ("Even though the

jury unanimously recommended the death penalty, whether the jury unanimously found each

aggravating factor remains unknown."). Indeed, Mr. Hilton's jurors may have reached a

unanimous overall recommendation, but there is nothing in the record that reveals the basis for the

recommendation, and there is therefore a reasonable probability that each juror, or groups ofjurors,

may have based their recommendations on a different calculus. The Florida Supreme Court has

made clear that all jurors must be on the same page with respect to each of the underlying elements.

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 And as the Florida Supreme Court cautioned in Hurst v. State, engaging in speculation

about the jury's fact-finding "would be contrary to our clear precedent governing harmless error

review." 202 So. 3d at 69; see also Mosley, 2016 WL 7406506, at *26. The reasoning the Court

supplied in declining to speculate about the jury's fact-finding in Hurst v. State, even though that

case involved a non-unanimous jury recommendation, applies equally to Mr. Hilton's unanimous

jury recommendation:

Because there was no intenogatory verdict, we cannot determine what aggravators,

if any, the jury unanimously found proven beyond a reasonable doubt. We cannot
determine how many jurors may have found the aggravation sufficient for death.
We cannot determine if the jury unanimously concluded that there were sufficient
aggravating factors to outweigh the mitigating circumstances.

202 So. 3d at 68. Here too, this Court cannot determine what aggravators Mr. Hilton's jury found

proven beyond a reasonable doubt, how many jurors found which particular aggravators sufficient

for death, or how the jurors conducted the weighing process (particularly given the uncertainty

about what aggravators each juror considered in the first place).

This uncertainty as to what the advisory jury would have decided if tasked with making

the critical findings offact takes on additional significance in light of the principles articulated in

the United States Supreme Court's decision in Caldwell v. Mississippi, 472 U.S. 320 (1985). In

Caldwell, the Court held that a capital sentence is invalid if it was imposed by a jury that believed

that the ultimate responsibility for determining the appropriateness of a death sentence rested

elsewhere and not with the jury.Jd at 328-29. The Supreme Court explained that it "has always

premised its capital punishment decisions on the assumption that a capital sentencing jury

recognizes the gravity of its task and proceeds with the appropriate awareness of its truly awesome

responsibility, and that "it is constitutionally impennissible to rest a death sentence on a

dete1mination made by a sentencer who has been led to believe that the responsibility for

49

531
determining the appropriateness of the defendant's death sentence lies elsewhere." ld at 328-29,

341 (internal quotation omitted).

Mr. Hilton's jury was led to believe that its role in sentencing was diminished when the

Court instructed it that its sentence was advismy. It was with these instructions in mind, which

informed Mr. Hilton's jury "that the responsibility for determining the appropriateness of the

defendant's death sentence lies elsewhere," id at 328-29, that the jurors rendered a unanimous

recommendation to impose the death penalty. Given the jury's belief that it was not ultimately

responsible for the imposition of Mr. Hilton's death sentence, this Court cannot even be ceJiain,

to the exclusion of all reasonable doubt, that the jury would have made the same unanimous

recommendation without the Hurst error. In light of the principles articulated in Caldwell, this

Court therefore also cannot be certain, to the exclusion of all reasonable doubt, that the jury would

have unanimously found all of the other required elements satisfied. And, of course, the Court

cannot be sure that the jury would have declined to exercise its discretion to unanimously

recommend a life sentence after itself making the findings on the other required elements.

Moreover, the jury's consideration of the mitigation in Mr. Hilton's case may have been

significantly impacted by the jury's knowledge that it was not ultimately responsible for the

sentence. In a constitutional proceeding, where the jmy was properly apprised of its role as fact-

finder, the jury may have afforded greater weight to the mitigation in Mr. Hilton's case. As such,

it cannot be concluded that a jury would have tmanimously found or rejected any specific

mitigators in a constitutional proceeding. Cf Mills v. Maryland, 486 U.S. 367, 375-84 (1988);

McKoy v. North Carolina, 494 U.S. 433, 444 (1990) (both holding in the mitigation context that

the Eighth Amendment is violated when there is uncertainty about jury's vote). In Hurst v. State,

this Court emphasized that mitigation is an important consideration in assessing harmless error.

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532
202 So. 3d at 68-69 ("Because we do not have an interrogatory verdict commemorating the

findings of the jury ... we cannot find beyond a reasonable doubt that no rational jury, as trier of

fact, would determine that the mitigation was 'sufficiently substantial' to call for a life sentence.").

In Mr. Hilton's case, the court found the following mitigating factors:(!) Hilton was under

the influence of extreme mental or emotional disturbance at the time of the crime; (2) Hilton grew

up in an emotionally abusive and neglectful home; (3) Hilton abused drugs, including Ritalin, over

a long period oftime; (4) Hilton had no relationship with his biological father; (5) Hilton is already

serving a life sentence; (6) Hilton served his country in the military; (7) Hilton suffered maternal

deprivation and lacked bonding of a mother and child; (8) Hilton was placed in foster care as an

adolescent; and (9) Hilton suffered traumatic brain injury as a child. Given this mitigation, there

is a reasonable probability that at least some jurors in a constitutional proceeding, having been

properly advised of their role as fact-finder in deciding whether to sentence Mr. Hilton to death,

would have decided that the death penalty should not be imposed.

4. Defense counsel's approach to diminishing the aggravating factors and

presenting mitigation would have been different in a constitutional
proceeding

The jury's unanimous recommendation in Mr. Hilton's case also does not account for the

likelihood that defense counsel's approach to diminishing the weight of the aggravating factors

and presenting mitigation. at the. p€llalty p!1ase.wouldhave been different had counsel knoWIJ.,that

the jury, not the judge, would be required to unanimously agree on each of the elements required

to impose the death penalty. The impact of the unconstitutional scheme may have begun as early

as jury selection for the penalty phase. Counsel may have conducted his questioning of prospective

jurors differently had he known that only one juror needed to be convinced, as to only one of the

required elements, in order for Mr. Hilton to avoid a death sentence. During the penalty phase

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533
itself, defense counsel's approach may have been different had the jury, rather than the judge, been

required to unanimously find that each specific aggravating factor had been proven beyond a

reasonable doubt. Indeed, in a constitutional proceeding, defense counsel may have successfully

diminished or eliminated some aggravators.

Defense counsel's approach may also have been different had the jury, as opposed to the

judge, been required to unanimously make the "sufficiency" and "insufficiency" findings

regarding the aggravating factors. In addition, counsel's approach to the mitigation may have

differed in a penalty phase where the jury rendered the findings regarding the weight of

aggravation relative to mitigation. Counsel's thinking also may have been impacted had he known

the jury would be instructed that it was entitled to recommend a life sentence even if it had

unanimously agreed that all of the other elements for a death sentence were satisfied. Counsel may

have given different advice to Mr. Hilton, and the decision-making may have been different.

Given those and other uncertainties about the Hurst error's impact on counsel's strategy

and presentation, the jury's unanimous recommendation does not allow this Court to reliably

conclude that the jury would have unanimously made all of the required findings of fact in a

constitutional proceeding. In this regard, as noted in Section II(8), an evidentiary heruing is

necessary to establish how counsel's approach may have differed in a post-Hurst penalty phase.

5. The nnanimmrs recumnrendattan ·daes not account for the possibility

that the court may have exercised its discretion to impose a life sentence
if the court was bound by the jury's findings on each of the elements

The jury's unanimous recommendation also does not account for the possibility that the

sentencing court may have exercised its discretion to impose a life sentence if the court had been

bow1d by the jwy 's findings on each of the elements required for a death sentence, rather than the

court's own findings on those elements. See Hurst v. State, 202 So. 3d at 57 (noting that nothing

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534
111 Hurst has diminished "the right of the trial court, even upon receiving a unanimous

recommendation for death, to impose a sentence of life."); Fla. Stat. § 921.141(3)(2) (revised

Florida capital sentence statute providing that, even if the jury recommends death, "the court, after

considering each aggravating factor found by the jury and all the mitigating circumstances, may

impose a sentence of life imprisomnent without the possibility of parole or a sentence of death.

The court may consider only an aggravating factor that was unanimously found to exist by the

jury."). The Hurst decisions have fundamentally altered the source of information upon which

judges are required to determine whether to impose a life sentence as a matter of discretion.

Before Hurst, judges first rendered findings on each of the elements required to impose a

death sentence, and if the court found those requirements for the death penalty were satisfied, the

judge then decided, based on his own findings, whether to impose a death sentence or life sentence.

That is what occurred here: the judge made findings and then, based on those findings, decided

that a death sentence was warranted. However, after Hurst, juries now make the underlying

fmdings on the dements required to impose death. If the jury finds that the requirements for the

death penalty are satisfied, the judge still decides whether to sentence the defendant to death or

exercise his or her discretion to impose a life sentence, but now based on the jury's jindings. Thus,

it is unknown whether Mr. Hilton's judge would have exercised his discretion to impose a life

sentence in the same way if he was bound by the jury's underlying findings, rather than his own.

For example, the jury's findings in a proceeding that complied with Hurst may have yielded

a lesser number of aggravators than the judge's findings, which may have led the judge to decide

that a life sentence was appropriate. The jury's findings may have also yielded different

"sufficiency" and "insufficiency" determinations than those made by Mr. Hilton's judge. And the

jury may have made different findings regarding the relative weight of the aggravators of

53

535
mitigators. Whereas Mr. Hilton's judge was bound only by his own findings on those elements in

determining whether to exercise his discretion to impose a life sentence, the judge in a

constitutional proceeding that complied with Hurst would be required to exercise his discretion in

the context of the jury's findings, not his own. The jury's unanimous recommendation thus does

not allow this Court to reliably conclude that there is no reasonable probability that the judge would

have imposed a life sentence if bound by the jury's findings rather than his own findings.

6. To the extent the State may argue that the Hurst error is harmless due
to the judge's finding of certain aggravators based on prior or
contemporaneous convictions, the Florida Supreme Court has
explicitly rejected that argument

To the extent the State may argue that the Hurst error is rendered harmless by the fact that,

among the aggravators applied to Mr. Hilton, were those based on contemporaneous felony

convictions, the Florida Supreme Court has rejected the idea that a judge's finding of such

aggravators is relevant in the harmless-error analysis of Hurst claims, and has granted Hurst relief

despite the presence of such aggravators. See, e.g., Franklin v. State, 2016 WL 6901498, at *6

(Fla. Nov. 23, 2016) (rejecting "the State's contention that Franklin's prior convictions for other

violent felonies insulate Franklin's death sentence from Ring and Hurst v. Florida."); McGirth v.

State, 2017 WL 372095, at *2 (Fla. Jan. 26, 2017) (contemporaneous felony); Mosley, 2016 WL

7406506, at *3 (contemporaneous felony); Armstrong v. State, 2017 WL 224428, at *1 (Fla. Jan.

19, 2017) (prior violent felony); Calloway v. State, 2017 WL 372058, at *9 (Fla. Jan. 26, 2017)

(prior violent felony); Durousseau v. State, 2017 WL 411331, at *6 (Fla. Jan. 31, 2017) (prior

violent felony); Simmons v. State, 207 So. 3d 860,861 (Fla. 2016) (prior violent felony). Notably,

the Florida Supreme Court found the Hurst error not harmless in Mosley despite the fact that the

judge in that case had found a contemporaneous felony aggravator. Mosley, 2016 WL 7406506, at

*3. The same reasoning should apply in Mr. Hilton's case.

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 7. This Court should reject any suggestion in some prior cases that an
advisory jury's unanimous recommendation is a factor to consider in
Hurst harmless error analysis because such reliance violates the United
States Constitution

As noted above, this Court can hold that the Hurst error in Mr. Hilton's case was not

harmless beyond a reasonable doubt without contradicting any of the Florida Supreme Court's

decisions in other tmanimous-recommendation cases. 1 First, Hurst claims require individualized

harmless error review, and the burden is on the State to prove in each particular case that the Hurst

error did not impact the sentence. Second, while the Florida Supreme Court has ruled Hurst errors

hannless in some unanimous-recommendation cases, the Court has also indicated that a unanimous

jury recommendation is not by itself dispositive of the harmless error analysis. Third, in light of

the individual circumstances of this case, and the instructions to the jury, the Court may hold that

Mr. Hilton's Hurst error was not harmless beyond a reasonable doubt without contradicting any

of the Florida Supreme Court's rulings in other cases.

That being said, although it is not necessary for resolving the harmless error inquiry in Mr.

Hilton's favor, there are significant reasons grounded in federal constitutional law that this Court

should reject any reliance on the advisory jury's unanimous recommendation.

As previously explained, this Court cannot reliably infer from the unanimous jury

recommendation in a particular case that that the same jury would have unanimously found that

each of the required elements for a death sentence were satisfied in a constitutional proceeding,

particularly in light of Caldwell's holding about the impact of a jury's belief that its death-

1 See Davis v. State, 207 So.3d 142 (Fla. 2016); King v. State, No. SCI4-1949, 2017 WL 372081 (Fla.
Jan. 26, 20 17); Hall v. State, No. SC 15-1662, 2017 WL 526509 (Fla. Feb. 9, 20 17); Kaczmarv. State,
No. SCI3-2247, 2017 WL 410214 (Fla. Jan. 31, 2017); Knight v. State, No. SC14-1775, 2017 WL
41 1329 (Fla. Jan. 31, 2017); True hill v. State, No. SC14-15 14, 20 I 7 WL 727167 (Fla. Feb. 23, 201 7);
Jones v. State, No. SC14-990, 2017 WL 823600 (Fla. Mar. 2, 2017).

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sentencing role is minimized, i.e., that jurors do not have the ultimate responsibility for deciding

life or death. The jury's recommendation also does not account for the likelihood that defense

counsel's approach may have been different in a constitutional proceeding, or that the court may

have decided to impose a life sentence if bound by jury findings, rather than its own. In addition

to those previously-discussed considerations, reliance on advisory jury recommendations in

conducting Hurst harmless error analysis violates the United States Constitution.

Under the Sixth Amendment, any reliance on the jury's recommendation is problematic in

light of Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993). In Sullivan, the Supreme Court

emphasized that "[h]armless-error review looks, we have said, to the basis on which the jury

actually rested its verdict." !d. at 279 (emphasis in original) (internal quotation marks omitted). In

Mr. Hilton's and other pre-Hurst Florida cases, there was no constitutionally valid jury verdict on

the critical findings of fact required to impose a death sentence. Sullivan requires that, before a

reviewing court may apply harmless error analysis, there must be a valid jury verdict, grounded in

the proof-beyond-a-reasonable-doubt standard.

Although Sullivan addTessed a jury verdict as to guilt, the logic of Sullivan applies equally

in the capital penalty-phase context:

The inquiry, in other words, is not whether, in a trial that ocCUlTed without the error,
a guilty verdict would surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the error. That must be
so, because to hypothesize a guilty verdict that was never in fact rendered-no
matter how inescapable the findings to support that verdict might be-would
violate the jury-trial guarantee.

Jd. at 279-80. In Mr. Hilton's case too, any reliance on his advisory jury's unanimous

recommendation would be a violation of the Sixth Amendment.

Reliance upon an advisory jury's unanimous recommendation also runs afoul of the

Fourteenth Amendment. The Due Process Clause requires that, in all criminal prosecutions, the

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538
State must prove each element beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364

( 1970). This requirement attaches to any factual finding necessitated by the Sixth Amendment. In

Sullivan, the Supreme Court observed that "the Fifth Amendment requirement of proof beyond a

reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated."

Sullivan, 508 U.S. at 278. "It would not satisfy the Sixth Amendment to have a jury determine that

the defendant is probably guilty, and then leave it up to the judge to determine (as Winship requires)

whether he is guilty beyond a reasonable doubt .... In other words, the jury verdict required by

the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt." Id This requirement

is clearly incorporated into the Hurst line of cases, beginning with Apprendi v. New Jersey, 500

U.S. 466 (2000) ("[A]ny fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.") (emphasis

added). Any reliance upon the jury recommendation requires the underpinnings of the

recommendation to be made beyond a reasonable doubt. Because Florida's pre-Hurst jury

determinations, including the unanimous advisory recommendation here, did not incorporate the

beyond-a-reasonable-doubt standard, it would violate due process to rely on them.

8. To the extent this Court needs further evidence that the Hurst error in
Mr. Hilton's case cannot be found harmless, a hearing is appropriate
to probe the impact of the Hurst error on defense counsel's strategy and
presentation

For the reasons above, this Court should not rule that the Hurst error in Mr. Hilton's case

was hannless beyond a reasonable doubt, because any such ruling on the present record would be

based on impermissible speculation. To the extent this Court needs further evidence that the errors

were not harmless, a hearing is appropriate to probe the impact of the Hurst errors on defense

counsel's strategy and presentation. The Florida Supreme Court has approved of such hearings in

similar contexts. In Meeks v. Dugger, 576 So. 2d 713, 716 (Fla. 1991), the Court, while considering

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539
a habeas petition raising a claim under Hitchcock v. Duggar, 481 U.S. 393 (1987), determined that

the defendant was entitled to an evidentiary hearing on the issue of harmless error and remanded.

Here, as in Meeks, this Court should allow a hearing so that it can make findings of fact

regarding harmlessness. At a hearing on whether the Hurst error in his penalty phase was harmless

beyond a reasonable doubt, Mr. Hilton could present evidence, among other things, that defense

counsel's approach to diminishing the weight of the aggravating factors would have been different

had counsel known that the jury, not the judge, would make the critical findings of fact. For

instance, a defense counsel's entire approach would have been different had the jury, as opposed

to the judge, been required to make the "sufficiency" and "insufficiency" findings. Counsel would

have given different advice to Mr. Hilton, and the decision-making in this case would have been

different. This is especially true in light of the fact that the jury's consideration of the evidence is

different if the jury is required to make the sentencing findings, instead of making only an advisory

recommendation. See Caldwell, 472 U.S. at 328-29 (recognizing significant impact of a jury's

belief that the ultimate responsibility for determining whether a defendant will be sentenced to

death lies elsewhere). A hearing is therefore appropriate to evaluate the effect of the statute

invalidated by Hurst on counsel's development of challenges to aggravation, mitigation, and

defense penalty-phase theories at the sentencing and resentencing; counsel's advice to the client;

investigation; and the decisions of counsel and the client.

Claim 5: Trial counsel was ineffective for not objecting to Mr. Hilton's ineligibility for tbe
death penalty under the Eighth Amendment due to his severe mental illness
Whether a punishment is proportionate within the meaning of the Eighth Amendment is

determined by the evolving standards of decency, since "the standard of extreme cruelty is not

merely descriptive, but necessarily embodies a mora! judgment. The standard itself remains the

same, but its applicability must change as the basic mores of society change." Kennedy v.

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540
Louisiana, 554 U.S. 407,419 (2008) (citing Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger,

J., dissenting)). Regardless of how the public feels about a punishment, the"[ e]vo!ving standards

of decency must embrace and express respect for the dignity of the person, and the punishment of

criminals must conform to that rule." !d. at 420. Even if legislation has not yet caught up to what

the Constitution requires, "[i]t seems conceded by all that the Amendment imposes some

obligations on the judiciary to judge the constitutionality of punishment and that there are

punishments that the Amendment would bar whether legislatively approved or not." Gregg v.

Georgia, 428 U.S. 153, 174 (1976) (citing Furman, 408 U.S. at 313-14).

As with any punishment, the death penalty must be proportionate. See Gregg, 428 U.S. at

173 (internal citations omitted) ("[Capital] punishment must not be grossly out of proportion to

the severity of the crime."). The Supreme Court has adopted two steps when faced with

excessiveness claims regarding the death penalty. It first looks to "objective indicia of society's

standards, as expressed in legislative enactments and state practice with respect to executions."

Roper, 543 U.S. at 563. To make this assessment the Court generally considers "the historical

development of the punishment at issue, legislative judgments, international opinion, and

sentencing decisions juries have made .... " Enmund, 458 U.S. at 788. After the objective indicia,

the Comt moves to the second step, which considers proportionality in light of the "standards

elaborated by controlling precedents and by the Court's own understanding and interpretation of

the Eighth Amendment's text, meaning, and purpose." Kennedy, 554 U.S. at 421. This second

step is the more dominant factor. See Enmund, 458 U.S. at 797 ("[a]lthough the judgments of

legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge

whether the Eighth Amendment permits imposition of the death penalty ... ").

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 By using this test, the U.S. Supreme Court has found the death penalty unconstitutionally

excessive when used against those who have not committed homicide, Kennedy, 554, U.S. at 421;

Enmund, 458 U.S. at 801; Coker, 433 U.S. at 592; those with intellectual disabilities, Atkins, 536

U.S. at 321; and juveniles under eighteen, Roper, 543 U.S. at 578. See also Miller v. Alabama,

132 S. Ct. 2455, 2460 (mandatory life without parole excessive for juveniles under eighteen who

have committed homicide); Graham v. Florida, 130 S. Ct. 20!1, 2034 (2010) (life without parole

excessive for juveniles under eighteen who have not committed a violent offense).

State law also protects against excessive punishment in capital cases. The guarantee

against cruel, unusual, and excessive punishment is not merely imposed on the federal government.

The Eighth Amendment applies to Florida pursuant to the Fourteenth Amendment, and Article 1,

Section 17 of the Florida Constitution's Declaration of Rights prohibits excessive punishments;

see also Lightbourne v. McCollum, 969 So. 2d 326, 335 (Fla. 2007) (Eighth Amendment

prohibition of cruel and unusual punishment may apply to "the method and type of punislunent,"

"a particular class of individuals," "claims of excessive punishment," and "claims involving prison

conditions"). The opportunity for proportionality review is a priority that occurs in every capital

case in Florida. As the Florida Supreme Court has explained:

The requirement that death be administered proportionately has a variety of sources

in Florida law, including the Florida Constitution's express prohibition against
unusual punishments. It clearly is "unu~ual" to impose death based on facts similar
to those in cases in which death previously was deemed improper. Moreover,
proportionality review in death cases rests at least in part on the recognition that
death is a uniquely irrevocable penalty, requiring a more intensive level of judicial
scrutiny or process than would lesser penalties.

Tilman v. State, 591 So. 2d 167, 169 (Fla. !991). The Florida Supreme Comt has

acknowledged that when deciding a punishment's propmtionality, "a reviewing court must never

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lose sight of the fact that the death penalty has long been reserved only for the most aggravated

and least mitigated of first-degree murders." Urbin v. State, 714 So. 2d 411,416 (Fla. 1998).

As explained below, the standards of decency have now evolved so that the death penalty

is a disproportionate sentence as applied to Defendant because he has severe mental illnesses and

was a juvenile whose brain was not fully developed at the time of the crime.

A. Mr. Hilton has various cognitive deficiencies

Mr. Hilton has suffered from head injuries and mental illness for much of his life. When

Mr. Hilton was one-and-a-half, he had to go in for tonsil and adenoid surgery. His mother, Ms.

Debag, had to put hot towels on his head because the pain from his sinuses was so intense. Around

this same time, Mr. Hilton also contracted rheumatic fever. This lasted until he was five-years-

old. The doctors told Ms. De bag not to let Mr. Hilton walk, and after that she carried him until he

was three. Even after the sinus surgery, Mr. Hilton continued to suffer from his sinus problems as

a young child. When Mr. Hilton was only five, he was in so much pain that Ms. Debag walked in

on him holding a knife, about to cut his arms. When Mr. Hilton started attending kindergarten, he

still had symptoms of rhewnatic fever and had a heart munnur.

Around the age often, Mr. Hilton suiiered from a severe head injury. Ms. Debag was trying

to unscrew a Murphy bed bolted to the floor but could not get under it. She asked Mr. Hilton to

go under the bed, but then it fell on his head. Ms. Debag lifted the bed and started screaming. The

metal bars had cut Mr. Hilton's scalp open. A next door neighbor, Victorine Rowe, heard the

screaming and ran over. She saw Ms. De bag trying to hold bloody towels over Mr. Hilton's head

and to calm down so the towels would stay still. Another neighbor came over to take them to the

hospital. Mr. Hilton was in the hospital for a week, and he received two hundred (200) stitches in

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his head. When he finally went back home, his entire head was bandaged. Multiple trial experts

testified that this injury resulted in brain damage that still affects Mr. Hilton to this day.

Mr. Hilton started abusing substances when he was a young teenager, often dlinking

alcohol and smoking marijuana. This use only increased as he grew older, and he frequently used

acid, LSD, and Quaaludes. In his fifties, Mr. Hilton became convinced that he had multiple

sclerosis. He diagnosed himself and started telling anyone who would listen, including his

acquaintances, people from the past whom he had not spoken with in years, and complete strangers.

This led him to seek out Dr. Deicher, a doctor he found in the yellow pages, and Dr. Deicher

prescribed him with Ritalin. Dr. Deicher quickly increased the dosage to 80 milligrams per day,

which is 60 milligrams more than the maximum recommended by the FDA.

Mr. Hilton had exhibited bizarre behavior his entire life, including sudden mood changes,

the inability to control his anger, paranoia, exaggerated attachment to animals, extreme energy,

and rapid and forced speech. After Mr. Hilton started taking the Ritalin, this behavior became

even more pronounced, those who interacted with him noticed the changes and were afraid of him.

The defense experts at trial agreed that Mr. Hilton suffers from brain damage in his frontal

lobe, which affects his executive functioning and ability to control his actions. Mr. Hilton was

also diagnosed with schizoaffective disorder. The experts agreed that these factors all impaired

Mr. Hilton's judgment and impulse control on the night of the crime.

B. The objective indicia do not indicate that those with severe mental illness
should be sentenced to death.

The first step of the proportionality test is to assess whether there is a national consensus

against using the death penalty on certain classes of offenders and offenses. This is generally

found using "the historical development of the punishment at issue, legislative judgments,

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international opinion, and sentencing decisions juries have made ... " Enmund, 458 U.S. at 788.

Courts generally look at federal and state legislation and, if any new legislation has recently been

passed, what direction it has been going. See Roper, 543 U.S. at 564; Kennedy, 554 U.S. at 423.

Even if a punishment is still technically authorized, however, courts will look at how many States

actually use it. See Graham v. Florida, 130 S. Ct. at 2024 (the Court focmd that although twenty-

eight jurisdictions still allowed juveniles who had not committed homicide to be sentenced to life

without parole, only eleven were actively imposing this sentence).

Despite the focus on legislation, "[t]here are [other] measures of consensus." Kennedy,

554 U.S. at 433. A consensus may also be gleaned from jury verdicts, number of executions, or

prosecutorial discretion. If prosecutors ate choosing not to seek the death penalty against certain

types of offenders or juries are not voting to execute them, then this serves as evidence of a

consensus against the imposition of these penalties. As the Court stated in Enmund v. Florida,

when it was deciding whether the death penalty was proportionate for a petitioner charged as a

felony accomplice who had not killed, attempted to kill, or intended to kill, "[I]t would be relevant

if prosecutors rarely sought the death penalty for accomplice felony murder, for it would tend to

indicate that prosecutors, who represent society's interest in punishing crime, consider the death

penalty excessive for accomplice felony murder." 458 U.S. at 796. Jury verdicts can also show

who communities across the country feel is or is not deserving of the death penalty, even if the

defendant does not fit into a clear cut category. In Enmund, a "nontriggerman" comparable to

Enmund had not been executed for almost thirty years, and there were only 41 people on death

row who had not actually committed the murder underlying their sentence. !d. at 795. Enmund

was the only one who had been sentenced to death without a showing of the requisite intent to kill.

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Jd See also Kennedy, 554 U.S. at 409 (noting that only two people convicted of child rape were

on death row in the entire country, both of whom were in Louisiana).

The legislative trend in many states shows that there is a growing consensus against

sentencing defendants with severe mental illnesses to death. Prior to abolishing the death penalty,

Connecticut prohibited its use where "the defendant's mental capacity was significantly impaired

or the defendant's ability to conform the defendant's conduct to the requirements of law was

significantly impaired but not so impaired in either case as to constitute a defense to prosecution."

Conn. Gen. Stat. Ann. § 53a-46a. Currently, eight states have bills pending that would similarly

protect those with severe mental illnesses from facing capital punishment. At Least Seven States

Introduce Legislation Banning Death Penalty for People with Severe Mental Illness, Death Penalty

Infonnation Center (Jan. 29, 2017), www.deathpenaltyinfo.org/node/6673; Kim Bellware, Texas

Mulls Death Penalty Exemption for People with Severe Menta/Illness, Huffington Post (Mar. 7,

20 I 7), www.huffingtonpost.com/entry/texas-mentally-ill-death-penalty_us. Most recently, state

representatives in Texas, the state often thought to be the leader of capital punislunent, introduced

a bill that would exempt those with severe mental illnesses from the death penalty, a determination

that a judge would make prior to trial. Id Rep. Toni Rose, the sponsor of the bill, explained that

it "would bring Texas' death penalty into alignment with laws that bar executions for vulnerable

groups like juveniles and the intellectually disabled .... " ld Six of these eight bills were proposed

by Republican sponsors, indicating biprutisan support and a high likelihood of success. Seven

States Introduce Legislation. For example, in Indiana, the bill's Republican sponsor, Senator

James Merritt, clarified that while he supports the death penalty in general, he sees a "bright line

of distinction" around using it on those with severe mental illnesses. Id

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 There is other objective evidence that the death penalty is disproportionate for prisoners

with severe mental illnesses. Twenty-two of the death penalty states that provide for specific

statutory mitigating factors plus the federal government have a mitigating factor that addresses the

defendant's impaired ability to conform his conduct to the requirements of the law due to mental

illness, defect, or disease 2 This is in addition to the nineteen states that have entirely abolished

the death penalty and thus do not impose it anyone, let alone on adolescent defendants or those

with severe mental illnesses. See Hall v. Florida, 134 S. Ct. 1986, 1997 (2014) (explaining that

when reviewing state statutes to determine evolving standards of decency, states that have

abolished the death penalty or have a moratorium count as states that do not impose capital

punislm1ent against a category of people). Moreover, Florida equates severe mental illness with

"retardation[] or other severe disabilities" in other situations. See, e.g., l-05-08-A2 Guveniles

ineligible for referral to post-adjudication juvenile drug court if they have "severe mental illness,

retardation, or other severe disabilities that would likely result in the inability to successfully

complete the drug court conditions"). This shows that an overwhelming consensus of forty-one

jurisdictions have passed laws either precluding Defendant from the death penalty or instructing

that his mental illness that Defendant's mental illness precludes him entirely from the death penalty

or mitigates against it.

2
See Alabama, Ala. Code§ 13A-5-51(6); Arizona, Ariz. Rev. Stat.§ 13751(1); Arkansas, Ark.
Code. Aim. § 5-4-605(3); Colorado, Colo. Rev. Stat. Ann. § 18-1.3.1201(b); Florida, Fla. Stat.
Ann.§ 921.141 (f); Indiana, Ind. Code Ann.§ 35-50-2-9(6); Kansas, Kan. Stat. Ann.§ 21-6625(6);
Kentucky, Ky. Rev. Stat. Ann. & 532.025(7); Louisiana, La. C.Cr. P. art. 905.5(e); Mississippi,
Miss. Code Ann. § 99-19-101(£); Missouri, Mo. Ann. Stat. § 565.032(6); Nebraska, Neb. Rev.
Stat. Ann. § 29-2523(g); New Hampshire, N.H. Rev. Stat. Ann. § 630:5(a); Nmth Carolina, N.C.
Gen. Stat. Ann. § 15A-2000(6); Ohio, Ohio Rev. Code Ann. §(3); Pennsylva11ia, 42 Pa. Stat. §
9711(3); South Carolina, S.C. Code Ann. § 16-3-20(6); Tennessee, Tenn. Code Ann. § 39-13-
204(8); Utah, Utah Code Ann. § 76-3-207(d); Virginia, Va. Code Ann. § 19.2-264.4(iv);
Washington, Wash. Rev. Code Aim. § 10.95.070(6); Wyoming, Wyo. Stat. Ann. § 6-2-102(vi);
United States, 18 U.S.C.A. § 3592(1).
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 Professional organizations have also spoken against the death penalty's use against those

with severe mental illness. See Thompson v. Oklahoma, 487 U.S. 815,830 (1988) (United States

Supreme Court considered the advice of professional organizations in exempting juveniles under

16 from the death penalty). In December 2016, the American Bar Association issued a white paper

calling for a severe mental illness exemption to the death penalty. Multiple mental health

organizations, including the American Psychiatric Association, the American Psychological

Association, the National Alliance on Mental Illness, and the Mental Health America have also

spoken out in support of such an exemption. See Mental Illness Legislation, supra, at 34. Public

support for a mental illness exemption is at an all·time high, with Americans in favor of such an

exemption at a ratio of two to one. See id

Finally, recent events show that juries have been reluctant to impose the death penalty on

those with severe mental illnesses. For example, in 2015, a young man in Colorado, James

Holmes, was convicted of multiple counts offirst·degree murder for opening fire in a movie theater

in Aurora, Colorado. Ann O'Neill, Theater Shooter Holmes gets 12 l!le sentences, plus 3,318

years, CNN (Aug. 27, 2015, 8:39 AM), www.cnn.com/2015/08/26/us/jarnes-holmes-aurora-

massacre-sentencing. Holmes presented an insanity defense, so much of the guilt phase focused

on his severe mental illness. !d. The jury rejected this defense and convicted him of 24 counts of

first-degree murder and 140 counts of attempted murder. !d. Even then, the jury was unable to

agree to impose any death sentences following a penalty phase that again focused on Holmes'

mental state, and he received 24 life without parole sentences. Jd.

This shows an overwhelming consensus that, in jurisdictions where the death penalty is a

possible sentence, significance is placed on the defendant's ability to fully grasp the wrongfulness

of his/her actions and confmm his/her actions based on that assessment. The experts who have

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evaluated Mr. Hilton have all expressed how his brain damage would have impaired his ability to

f111ly grasp the wrongfulness of his actions and conform his behavior based on that assessment.

Thus, his condition is viewed as mitigating in twenty-two jurisdictions. These numbers are

especially telling when added to the nineteen jurisdictions that have repealed the death penalty,

since in those states Defendant would definitely not face execution. See Hall, 134 S. Ct. at 1997

(suggesting taking into account states with no death penalty when counting).

Just as the death penalty cannot constitutionally be applied to the intellectually disabled or

to juveniles under eighteen, the objective indicia of national trends show that the evolving

standards of decency no longer support the death penalty for Mr. Hilton.

I. Mr. Hilton's reduced culpability decreases the likelihood that his death
sentences align with any of the necessary purposes of punishment:
retribution, deterrence, and rehabilitation

In moving to the second step of the proportionality test-the Supreme Court's own

jurisprudence and rationale-Defendant's death sentences still do not pass constitutional muster.

Defendant did not have the cognitive abilities to judge the wrongfulness of his conduct and act in

a way reflecting the potential consequences. Thus, imposing a death sentence on Defendant would

not be effective deterrence or retribution. Since a death sentence must pass both prongs of the

proportionality test, including that it must be imposed for one of the purposes of punishment, his

death sentences are unconstit11tiona!. See Kennedy, 554 U.S. at 441.

After a court has examined whether the objective indicia point to a sentence's

excessiveness, "[the court's] own judgment is 'brought to bear' by asking whether there is reason

to disagree with the judgment reached by the citizenry and its legislators." Atkins, 536 U.S. at 313,

citing Coker, 433 U.S. at 597. This step carries significant weight, since the Supreme Court has

expressed that "it is for us ultimately to judge whether the Eighth Amendment permits imposition

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of the death penalty,, .." Enmund, 458 US, at 797. Even ifthere are statutes still authorizing a

certain punishment, "there are punishments that the [Eighth] Amendment would bar whether

legislatively approved or not" See Gregg, 428 U.S, at !53, citing Furman, 408 U.S. at 313-14.

When a court progresses to its own judgment, it looks at "the culpability of the offenders at issue

in light of their crimes and characteristics, along with the severity of the punishment in question,"

Graham, 13 0 S, Ct. at 2026, and makes this determination based on "the standards elaborated by

controlling precedents and by the Court's own understanding and interpretation of the Eighth

Amendment's text, history, meaning, and purpose," Kennedy, 554 U.S, at 421. The death penally

is more likely to be found excessive, then, when the defendant has a lesser culpability,

For a death sentence to be constitutional, the purposes of punishment must be met. See,

e.g, Gregg, 428 U.S. at 183. Thus, when faced with a proportionality claim, the Supreme Court

requires the sentence to "measurably contribute to one or both of [deterrence or retribution]". See

Enmund, 458 U.S, at 798. If the death penalty fails to do this, it is "nothing more than the

purposeless and needless imposition of pain and suffering." ld. at 798, citing Coker, 433 U.S. at

592. The failure to meet these goals contributed to the Supreme Court finding that the death

penalty was unconstitutional when imposed on the intellectually disabled and juveniles. See, e.g.,

Roper, 543 U.S. at 571; Atkins, 536 U.S, at 321,

Mr. Hilton's background makes it equally as unlikely that deterrence and retribution would

serve as effective justifications for imposing a death sentence on him. He bears many of the same

characteristics that the Supreme Court attributed to juveniles and the intellectually disabled when

placing them outside of the death penalty's reach.

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 a. Mr. Hilton's death sentences do not meet the purpose of deterrence

It is highly unlikely that Mr. Hilton experienced any deterrent effect by the death penalty

before the crime. A punishment only deters if a crime has been committed as a result of

"premeditation and deliberation." See Enmund, 458 U.S. at 799. The U.S. Supreme Court found

in Atkins that deterrence is not a valid justification for execution of the intellectually disabled. 536

U.S. at 320. This is because they have "cognitive and behavioral impairments" that result in their

"diminished ability to understand and process information, learn from experience, engage in

logical reasoning, and control impulses." !d. at 318. These impairments make it "less likely that

they can process the information of the possibility of execution as a penalty and, as a result, control

their conduct based on that information." !d. at 320.

Juveniles have similar qualities tl1at undermine the deten·ence argument. Their youth gives

them greater "difficulty weighing long-term consequences," Graham, 130 S.. Ct.. at2D32,.makes

them "less likely to take possible punishment into consideration," id. at 2028, or make a "cost-
'
benefit analysis that attaches any weight to the possibility of execution," Thompson v. Oklahoma,

487 U.S. 815,837, and they may lack "the ability to consider the full consequences of a course of

action and to adjust [their] conduct accordingly ...." Miller, 132 S. Ct. at 2476. This gives them

the same issues that the intellectually disabled may have in realizing the potential consequences of

their actions and benetlting from the purposes of deterrence.

Deterrence would have been no more effective on Mr. Hilton than on juveniles or the

intellectually disabled. His mental illness means that he had no greater likelihood of being able to

assess the consequences of his actions and act according to the result of that assessment than a

younger juvenile who makes "impetuous and ill-considered decisions" and has "difficulty

weighing long-term consequences," Graham, 130 S. Ct. at 2032, or an intellectually disabled

69

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defendant who has the "diminished ability to understand and process information, learn from

experience, engage in logical reasoning, or control impulses," Atkins, 536 U.S. at 318. If

Defendant did not have time to think about or control his actions, then he would not have been

able to consider the consequences either. The U.S. Supreme Court in Atkins also emphasized that

barring the intellectually disabled from the death penalty would not affect deterrence of the rest of

the population since this protection would not apply generally. !d. at 320. The same can be said

for Mr. Hilton, since his characteristics derived from specific severe mental illnesses that would

not be applicable to a large number of defendants.

b. Mr. Hilton's death sentences do not meet the purpose of retribution

Retribution would also not be justified for Mr. Hilton since his mental illness inhibits his

ability to control his impulses. For many of the same reasons as those that made deten-ence

ineffective, the Supreme Court also found that a death sentence imposed on juveniles and the

intellectually disabled did not align with the principles of retribution. Intellectually disabled

offenders are often seen as less culpable because of their decreased ability to control their actions.

Atkins, 536 U.S. at 320. While they often know right from wrong, they have a "diminished

capacity to understand and process, communicate, abstract mistakes and learn from experience,

engage in logical reasoning, control, and impulses, and understand others' reactions." !d. at 318.

This increases their tendency to act impulsively. I d. When intellectually disabled offenders are

less likely to have control over their actions and to assess the wrongfulness before commit1ing a

crime, then it diminishes their culpability.

Juveniles are similarly less able to control their actions. The underdeveloped nature of

their brains affect their ability to rationalize, and "psychology and brain science continue to show

fundamental differences between juvenile and adult minds" which affect juveniles' ability to

70

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control their behavior. Graham, 130 S. Ct. at 2026. Additionally, they are more susceptible to

outside influence and peer pressure, and they cannot control or remove themselves from brutal and

dysfunctional family and home environments. Miller, 132 S. Ct. at 2468.

Mr. Hilton's death sentences do not align with the purpose of retribution. Intellectually

disabled defendants are viewed as less culpable because of their "disabilities in areas of reasoning,

judgment, and control of their impulses" and their tendency to "act on impulse." Atkins, 536 U.S.

at 3 I 8. Juveniles have been found to bear "less control, experience with control, and control over

[their] own environment" and a lack of brain development necessary to control behavior. Graham,

130 S. Ct. at 2026. They also cannot control or remove themselves from brutal and dysfunctional

family and home environments. Miller, 132 U.S. at 2468. Mr. Hilton's mental illness has led to

these same tendencies. The defense experts agreed that he bears the characteristics of a juvenile,

with impairments in from impulsivity, inappropriate affect, concreteness of thought, impaired

problem solving, and problematic executive function. Thus, the Court does not achieve the

necessary purposes of punishment by imposing the death penaJty on Mr. Hilton.

c. Defendant's death sentences do not meet the purpose of rehabilitation

The culmination of everything in Mr. Hilton's background does not support any finding

that he is "the worst of the worst." Roper, 543 U.S. at 568. When evaluating proportionality

claims, courts must limit the use of the death penalty. This stems from the tension caused by the

Court's desire to guide the jury's discretion by narrowing the classes of people eligible for the

death penalty while at the same time allowing the jury a broad amount of information in deciding

who makes up that class of the worst offenders. Kennedy, 554 U.S. at 436. The majority in

Kennedy found that since this tension is still in search of a "unifying principle" which "has

produced results not altogether satisfactory," the use of the death penalty should be limited for

71

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only the most deserving cases. !d. at437. See also Roper, 543 U.S. at 568, citing Atkins, 536 U.S.

at 319 ("Capital punishment must be limited to those offenders who commit 'a narrow category of

the most serious crimes' and whose extreme culpability makes them 'the most deserving of

execution.'"). For example, the categorical ban was justified for intellectually disabled defendants

because if an "average murderer" does not possess the culpability to be sentenced to death, then

an intellectually disabled defendant who has a lesser culpability should not be deemed to either.

Atkins, 536 U.S. at 350. The desire to limit the use of the death penalty has thus been a major part

of the U.S. Supreme Court's decision to place categorical bans on the death penalty.

Mr. Hilton is not in the class of the most serious offenders because ofhis brain damage and

frontal lobe dysfunction. The analysis surrounding the proportionality of the death penalty focuses

mostly on retribution and deterrence, and, as previously discussed, Mr. Hilton's death sentences

do not meet those ends.

d. Because Mr. Hilton's death sentence does not meet any of the purposes
of punishment, it is disproportionate and out of line with the evolving
standards of decency

The standards of decency have now evolved in such a way that applying the death penalty

in Mr. Hilton's case is disproportionate. When comparing Mr. Hilton's death sentences with the

principles found throughout the U.S. Supreme Comt's proportionality jurisprudence, there is a

clear pattern between the intellectually disabled, those with severe mental illnesses, and

adolescents regardless of whether they are under or over the age of 18. The intellectually disabled

and children under 18 are exempt from the death penalty because imposing such a sentenee on

them does not meet any of the purposes of punishment: retribution, deterrence, and rehabilitation.

See Kennedy, 554 U.S. at 420. So too here. As explained above, Mr. Hilton's cognitive

impairments parallel those exhibited by juveniles and the intellectually disabled, so that the effect

72

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of retribution and detenence are inhibited. To impose a death sentence on Defendant under these

circumstances would completely undercut the Supreme Court's attempt for the past forty years to

limit the situations in which the death penalty is constitutionally permissible. Accordingly, Mr.

Hilton's death sentence should be vacated.

E) CLAIMS FOR WHICH NO EVIDENTIARY HEARING IS SOUGHT

Claim 7: Trial counsel was ineffective for their failure to preserve for appeal the denial
of cause challenges during jury selection

It is essential to defense counsel's role as advocate that he preserve reversible enors for

appellate review. The enor at issue here is the trial court's denial of Trial Counsel's for-cause

challenge. Denial of a challenge for cause is grounds for reversible enor. Hamilton v. State, 54 7

So. 2d 630, 632 (Fla. 1989). In order to preserve such an enor for appellate review, where trial

counsel's motion to strike a juror for cause is denied, and he is thereafter forced to exhaust all

peremptory challenges, he must first "identify a specific juror whom he otherwise would have

struck peremptorily". Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990).

In the instant case, Jury Selection proceeded over the course of several days. (R. Jury

Selection, 1-1082). There were numerous "cause challenges" that were asserted during jury

selection. Many of them were granted, but many of them were not. While the defense team made

objections to the denial of cause challenges, the defense team failed to preserve any of these

objections for the purposes of appellate review by utilization of the process outlined in Trotter.

The Defendant asserts that the failure to properly preserve the denial of cause challenges for

appellate review was and is ineffective assistance of counsel. See Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052,80 L.Ed.2d 674 (1984).

73

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Claim 8: Cumulative error

Even if each individual claim is insufficient to set aside Mr. Hilton's conviction and

sentence, all of trial counsel's errors taken together renders his guilty verdicts and death sentence

unreliable. In considering all aspects of the defense counsel's deficient performance as part of a

cwnulative analysis, Mr. Hilton would not have been found guilty of first-degree murder and

sentenced to death. Accordingly, his conviction and sentence should be vacated.

CONCLUSION AND RELIEF SOUGHT

Mr. Hilton requests the following relief, based on his prima facie allegations

demonstrating violations of his constitutional rights;

1. That he be allowed leave to amend this motion should new claims, facts, or legal
precedent become available to counsel;

2. That he be granted an evidentiary hearing at a reasonable time; and

3. That his judgments of convictions and sentence, including his sentence of death, be
vacated.

Respectfully submitted,

RtERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
efiling@ramlawyer.com
ATTORNEY FOR DEFENDANT
COURT APPOINTED

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 AFFIDAVIT

Before me personally appeared GARY HILTON, who after being duly swom and
deposed, said that he is the person named in and who executed the foregoing Motion and that
the statements therein contained are true and correct.

My Commission Expires:
?1411CJ(..t 13/ "''""

The above Defendant is:

Personally known by me: ---~,­

Produced Identification: /
(Type ofidentification: ~J:.n,.....CC ,:8>0,

CERTIFICATE BY ATTORNEY

l HEREBY CERTIFY that I have discussed the contents of the motion fully with the

Defendant, that I have complied with Rule 4-L4 of the Rules of Professional

the motion is filed in good faith.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been fumished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Momoe Street, Tallahassee, Florida 32301, Assistant State

75

557
Attorney Georgia Cappleman, SA02_LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

76

558
Filin& # 55472733 E-Filed 04/:.e. ,.J017 11:43:01 AM
.2'1

IN THE CIRCUIT COURT OF THE

SECONDJUOIC!AL CIRCUITiN AND
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

SJ>N NO.: l97141J
vs.

GARY MICHAEL HILTON,

Defendant.
------~---"/
ORDER GRANTING DEFENDANT'S SECOND MOTION FOR LEAVB TO
AMEND INITIAL POSTCONVICTION MOTION

THIS cause coming on to be heard based J.lpon Defendant's Second Motion

For Leave ToAmend PostconvictionMotion, filed AptiL20, 2017, and the Court
being otherWiSe fully advised in the premises, it is .hereb)'
ORDERED ANDAPJUDGED that the motion be granted. The Second
Amended Motion For Postconviction Relieffi1ed on April20, 2017, is accepted by
the Court. The State shall file an ansWer to the Second Amended Motion For
Postconvictio11 Reliefwithitltwenty (20) da)'s of the date of this order.
DONE AND ORDERED this )...
. . "*. +\A.
day of April, 2017, in Tallahassee,
Leon County, Florida.

cc:
Eddie Evans, Assistant State Attorney
Georgia Cappleman, Assistant State Attorney
Robert A. Morris, Counsel for Qefendant
Jennifer Keegan, Assistant Attorney General

559
. Filing# 56460292 E-Filed 05/L. ,017 06:00:59 PM
J.s-

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No.: 2008-CF-000697-A

CAPITAL CASE
GARYMICHAELIDLTON,

Defendant.
------------------------~/
STATE'S ANSWER TO SECOND AMENDED MOTION
FOR POSTCONVICTION RELIEF

COMES NOW, the State of Florida, by and through the undersigned

counsel, and hereby responds to Defendant Hilton's Second Amended Motion for

Postconviction Relief ("Motion"). On April 20, 2017, Hilton filed his Motion,

raising seven claims for relief. This Answer to Hilton's Motion follows.

The State does not object to an evidentiary hearing on claims 1 and 2(1);

however, the remaining claims should be summarily denied.

Citations

Citations to the record shall be designated as follows: The direct appeal

record shall be referred to by "R" and followed by the volume and page number;

references to Hilton's Motion shall be referred to by "Motion" followed by the

page number. Any other references will be self-evident.

560
 Facts and Procedural History

Hilton was convicted of grand theft, and the kidnapping and first-degree

murder of Cheryl Dunlap. The relevant facts concerning the crimes are recited in

the Florida Supreme Court's opinion on direct appeal:

On February 28, 2008, a Leon County grand jury indicted Gary

Michael Hilton for the first-degree murder of Cheryl Dunlap between
December 1 and December 15, 2007, kidnapping, grand theft of a
motor vehicle, and grand theft of currency. Hilton pleaded not guilty
on March 14, 2008. Hilton proceeded to a jury trial commencing on
February 2, 2011.

Cheryl Dunlap, 46, was last seen alive on December 1, 2007. That
morning, Dunlap called a friend, Kiona Hill, and made arrangements
to have dinner with her that evening. That afternoon, Dunlap went to
Leon Sinks to read, where she was seen by Michael and Vikki Shirley
at approximately 1:30 p.m. The Shirleys described that Dunlap was
wearing jeans and a sweater and carrying a hardback book. Dunlap
did not arrive for dinner that evening and was missed at church the
following morning by Tanya Land. Land went to Dunlap's residence
and found her dog, but noticed that her car was missing so she called
the police. Steven Ganey of the Wakulla County Sheriffs Office took
the missing person report on December 3, 2007.

Dunlap's car, a white Toyota Camry, was found on December 3, 2007,

on the side of Crawfordville Highway parked near the woods. The car
had deliberate tire punctures in the sidewall that was later identified as
a bayonet piercing. On December 1, the car had received a disabled
vehicle ticket from Florida Highway Patrol Trooper Brian Speigner.
Ganey testified that it appeared that someone had driven into the
woods with all four tires intact and punctured the tire after the car had
2

561
been parked. Dunlap's purse was recovered in her car, but no money
was found.

Dunlap's Ameris Bank account records revealed that Dunlap cashed a

check with a drive-through teller at 11:17 a.m. on December 1. The
records further revealed that three cash withdrawals were made at the
ATM at Hancock Bank on West Tennessee Street on December 2, 3,
and 4, 2007, totaling $700. In addition, two attempted withdrawals
were declined because they exceeded the daily limit. The video from
the security camera at the bank showed that the person making the
transactions was wearing a blue and white patterned, long-sleeved
shirt, glasses, a hat, and a make-shift mask made from tape.

Dunlap's body was discovered on December 15 by Ronnie Rentz

while he was hunting in the Apalachicola National Forest. Dunlap's
body was near a forest road and had been covered with some brush
and limbs. Additionally, her head and hands had been removed.
Dunlap's body was identified using a sample of thigh muscle. Dr.
Anthony Clarke, an associate medical examiner, performed the
autopsy. Dr. Clarke opined that Dunlap's head and hands had been
removed by an instrument with a sharp blade and that the
dismemberment occurred postmortem. The cause of death was not
able to be determined, but Dr. Clarke opined that it was likely to have
been a violent homicide. Additionally, Dr. Clarke noted that there
was a significant pre-mortem bruise located on Dunlap's middle to
lower back and that the bruise was not consistent with a normal fall
injury. Dr. Clarke estimated that Dunlap's body could have been in
the woods for seven to fifteen days. Dr. Clarke testified that his best
estimate was that Dunlap died between December 5 and December 8,
2007.

On January 9, 2008, investigators found what they believed to be the

remains of Dunlap's head and hands in a fire pit at Joe Thomas
campsite-approximately seven miles from where her body had been
found. The bone fragments were charred. Because of the burn
damage, no DNA was recoverable from the fragments. Dr. Anthony
Falsetti, a forensic anthropologist, opined that there were two hands
represented, that the bones were from an adult, and that the bones
were from a person with small hands.

562
Several witnesses testified that they saw or encountered Gary Michael
Hilton during the time period surrounding Dunlap's disappearance. In
late November 2007, George Ferguson encountered Hilton on LL
Wallace Road. Hilton asked Ferguson for a jump start because his
van, a white Chevrolet Astro, would not crank. Ferguson testified that
it did not appear to him that Hilton actually needed the assistance.
Ethan Davis provided similar testimony, that sometime in late
November 2007, Hilton stopped him and asked for help starting his
vehicle. Davis declined. Shawn Matthews also encountered Hilton in
late November near his LL Wallace Road camp. Hilton appeared to
be familiar with the area and told Matthews about a nearby sinkhole.
On December 1, 2007, Celeste Hutchins saw Hilton on Crawfordville
Highway, not far from Leon Sinks. Hutchins testified that Hilton was
rummaging through a white Camry on the side of the road. On
December 10, 2007, Loretta Mayfield spoke to Hilton at a
convenience store on Crawfordville Highway. Mayfield testified that
Hilton was wearing a blue and white patterned shirt. Hilton was also
wearing something on his left side that looked like a large knife
holder. Mayfield testified that the shirt she saw Hilton wearing
looked like the one in the ATM security video. On December 11,
2007, Stephen Prosser saw Hilton in the Apalachicola National Forest.
On December 12, 2007, Michael Travis saw Hilton in the forest near
the Bloxham cutoff and then saw him again on December 14. On
December 18, 2007, Teresa Johnson saw Hilton in Bristol, Florida,
where Hilton told her that she looked like Dunlap and that it was "too
bad" about that girl getting murdered.

Sometime between December 18, 2007, and January 1, 2008, Hilton

made his way to Georgia where he kidnapped and murdered Meredith
Emerson. Hilton took Emerson from Blood Mountain and held her for
four days before murdering her. He cooperated with law enforcement
in exchange for a life sentence. Hilton was arrested in Georgia after
Stephen Shaw saw Hilton walk to the back of a convenience store in
the direction of the store's dumpsters and called law enforcement. Law
enforcement officers recovered items Hilton was seen discarding in a
dumpster at the convenience store. From the dumpster, law
enforcement recovered a U.S. Forestry citation for unauthorized
camping, a knife and sheath, Hi-Tee boots, some chain, a padlock,
gloves, a jacket, a folding police baton, and a blue backpack. Hilton
gave Georgia officials information on where to find his bayonet on a
4

563
hiking trail on Blood Mountain in North Georgia. Later, Jeff Foggy,
an FDLE tool mark expert, matched the bayonet to the puncture
marks in Dunlap's tire. Georgia law enforcement also gathered items
from Hilton's van. Items recovered from the van included clothing,
jackets, gloves, camping equipment, duffel bags, two sleeping bags,
Hi-Tee boots, a camera, tobacco rolling papers, Hilton's Georgia
driver's license, tape, paper towels, maps, two BB pistols, a book
purchased at a Tallahassee book store, and dog food.

On February 12, 2008, Sergeant David Graham and Detective Dawn

Dennis with the Leon County Sheriffs Office executed a search
warrant on Hilton while he was in custody in Georgia. Hilton's DNA
was collected and the entire execution of the warrant was recorded.
Portions of the recording were played for the jury.

On June 6, 2008, Sergeant Graham and two other officers drove

Hilton from Georgia to Florida. Although Hilton was not questioned,
he spoke for nearly the entire five-hour drive, which was recorded.
The State also played portions of this recording at trial. Hilton stated:

I'm not all bad. I mean, you got to understand, I mean, I'm sure you
can see. I mean, I'm a [expletive] genius, man. I'm not a-l'm not all
bad. I just, you know, lost my mind for a little bit. Lost a grip on
myself, man. What can I tell you? FBI and everybody else is trying to
scratch their head, hey, guys don't get started doing my shit at 61
years old. It just don't happen, you know. Like there's a retired FBI
(indecipherable) named Cliff Van, Clifford Van Zandt, that keeps
getting himself in the news, talking about me. And he said, this guy
didn't just fall off the turnip truck, he said. You know, in other words,
he's been doing this. But like I told you before, you know, when I saw
you before, I said, remember, I said I'd give you one for free. Nothing
before September, okay? I mean, I'm not joking, okay? I just, I got old
and sick and couldn't make a living and just lost, flat lost my
[expletive] mind for a while, man. I couldn't get a grip on it.

Additionally, Hilton made statements to a fellow inmate at the Leon

County Jail that were overheard by Correctional Officer Caleb Wynn.
Specifically, Hilton told inmate Summers that he could answer all the
State Attorney's questions if he would give him a life sentence, that he
would reveal where the head was located, that his bayonet was used
5

564
 on Dunlap's tire, that he would explain how he "pulled it off' on a
busy highway, that he spent a few hours or a few days with Dunlap,
and that he felt no regret other than getting caught.

The penalty phase began on February 17, 2011, during which the state
called Clay Bridges of the Georgia Bureau of Investigation. Agent
Bridges testified about Hilton's prior felony conviction-the murder
of Emerson in Georgia to which Hilton pleaded guilty. The State
played Hilton's taped conversation with law enforcement where he
described kidnapping Emerson, holding her captive, and stripping her
body naked to remove DNA and fiber evidence. He also stated that
"you either kill them or you get caught."

Hilton presented four expert witnesses who testified regarding his

psychological condition: Dr. Joseph Wu, a psychiatrist and clinical
director of the Brain Imaging Center at the University of California,
Irvine; Dr. Charles Golden, a clinical neuropsychologist performing
neuropsychological testing and examinations; Dr. Abbey Strauss, a
psychiatrist with special expertise in psychopharmacology; and Dr.
William Morton, a board certified psychiatric pharmacist and
professor; and nine lay witnesses. The State then called Dr. Greg
Prichard in rebuttal.

On February 21, 2011, the jury recommended unanimously that Gary

Hilton be sentenced to death for the murder of Cheryl Dunlap.
The trial court held the Spencer 1 hearing on April 7, 2011. The State
presented three victim impact witnesses: (1) Ms. Emma Blount, the
victim's aunt; (2) Laura Walker, the victim's best friend; and (3)
Gloria Tucker, the victim's cousin. Hilton presented no witnesses.

The trial court found that the State had proven six aggravators beyond
a reasonable doubt. Assigning weight to each aggravator, the trial
court found: (1) the defendant was previously convicted of a violent
felony (great weight); (2) the murder was committed in the course of a
kidnapping (great weight); (3) the murder was committed to avoid
arrest (moderate weight); (4) the murder was committed for pecuniary
gain (some weight); (5) the murder was especially heinous, atrocious
1
Spencer v. State, 615 So.2d 688 (Fla. 1993).

565
 or cruel (HAC) (great weight); and (6) the murder was cold,
calculated, and premeditated (CCP) (great weight).

The court also considered and weighed each mitigating circumstance

proposed by Hilton and found one statutory mental mitigating
factor-at the time of the murder Hilton was under extreme emotional
distress (some weight). Under the catch-all provision, the trial court
considered ten mitigating factors, finding that Hilton established eight
of them and rejecting two. The court found: (1) Hilton grew up in an
abusive household (some weight); (2) Hilton abused drugs,
specifically Ritalin (some weight); (3) Hilton was deprived of a
relationship with his biological father (moderate weight); (4) Hilton is
already serving a life sentence so society is protected (some weight);
(5) Hilton served his country in the U.S. military (very little weight);
(6) Hilton suffered maternal deprivation and lack of bonding between
mother and child (some weight); (7) Hilton was removed from his
home and put into foster care when he was a child (some weight); (8)
Hilton grew up in a financially poor family (not proven); (9) Hilton
suffered a traumatic brain injury as a child (some weight); and (10)
Hilton suffers from severe mental defects (not proven).

On April 21, 2011, the trial court followed the jury's unanimous
recommendation and sentenced Hilton to death. The court found
beyond a reasonable doubt that the aggravators outweighed the
mitigators.
Hilton v. State, 117 So. 3d 742, 746-50 (Fla. 2013) (footnote included).

On appeal to the Florida Supreme Court, Hilton raised six claims: 1) the trial

court erred in admitting his statements to law enforcement as they constituted

inadmissible Williams rule evidence because they were only relevant to show his

propensity to commit the crime; 2) the trial court erred in admitting Dr. Gregory

Prichard's testimony during the penalty phase regarding Hilton's past criminal

conduct, as it constituted improper nonstatutory aggravating circumstances; 3) the

566
trial court erred in permitting Dr. Prichard to remain in the courtroom, despite

invocation of the rule of sequestration; 4) the trial court erred in finding that the

HAC and CCP aggravating circumstances applied, as the evidence was insufficient

for such a finding; 5) the trial court erred in rejecting the lack of capacity

mitigating factor and failed to provide reasons why there is substantial, competent

evidence in the record to support the rejection of this mitigating circumstance; and

6) the Florida Supreme Court erred in upholding the death sentence in light of Ring

v. Arizona, 536 U.S. 584 (2002). The Florida Supreme Court affirmed Hilton's

convictions and death sentence. Hilton, 117 So. 3d at 756. The Florida Supreme

found the death sentence to be proportionate. Id. at 755. The Florida Supreme

Court also reviewed the sufficiency of the evidence. Hilton then filed a motion for

rehearing on April2, 2013, which was denied on July 2, 2013. Id.

On September 12, 2013, Hilton filed a petition for writ of certiorari in the

United States Supreme Court, raising a Ring claim, which was denied on

December 2, 2013. Hilton v. Florida, 134 S. Ct. 686 (2013).

On November 25, 2014, Hilton filed a 3.851 Motion for Postconviction

Relief. The State filed its Answer to the Motion for Postconviction Relief on

January 26, 2015. Thereafter, on July 24, 2015, Hilton filed a Motion for Leave to

Amend Initial Postconviction Motion and Incorporated Memorandum of Law,

attaching his Amended Motion for Postconviction Relief. The Court granted the

567
Motion for Leave to Amend Initial Postconviction Motion on July 28, 2015, and

the State filed its answer on August 14, 2015. On January 20, 2016, this Court

entered a stay pending the Florida Supreme Court's decisions on the application of

Hurst v. Florida, 136 S. Ct. 616 (2016). The stay was lifted in open court on March

23, 2017. Hilton filed his Second Motion for Leave to Amend Initial

Postconviction Motion and Incorporated Memorandum of Law on April 20, 2014,

attaching his Second Amended Motion for Postconviction Relief. This Court

granted Hilton's motion on April4, 2017. The State's Answer to Second Amended

Motion for Postconviction Relief follows.

Ineffective Assistance of Counsel

To establish ineffective assistance of counsel (also known as a Strickland

claim), Hilton must satisfy a two-prong test, establishing both deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). To

establish deficient performance, Hilton must show that counsel made specific

errors so serious that he was not functioning as the counsel guaranteed to Hilton by

the Sixth Amendment. Id. at 687; Pietri v. State, 885 So. 2d 245, 252 (Fla. 2004)

("a court deciding an actual ineffectiveness claim must judge the reasonableness of

counsel's challenged conduct on the facts of the particular case, viewed as of the

time of counsel's conduct") (quoting Strickland, 466 U.S. at 690). Strickland

refrained from providing specific guidelines to evaluate counsel's performance,

568
and held "[t]he proper measure of attorney performance remams simply

reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688.

There is a strong presumption that trial counsel's performance was not

ineffective. Lukehart v. State, 70 So. 3d 503, 512 (Fla. 2011) (citing Strickland,

466 U.S. at 690). "A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Id.

Hilton has the burden to "overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound trial strategy."'

Salazar v. State, 188 So. 3d 799, 809 (Fla. 2016) (quoting Michel v. Louisian1!, 350

U.S. 91, 101 (1955)). "Strategic decisions do not constitute ineffective assistance

of counsel if alternative courses have been considered and rejected and counsel's

decision was reasonable under the norms of professional conduct." Lukehart, 70

So. 3d at 512. An attorney can almost always be second-guessed for not doing

more, but that does not meet the stringent Strickland standard for deficient

performance. Pagan v. State, 29 So. 3d 938, 949 (Fla. 2009).

To establish prejudice, Hilton must show that there is a reasonable

probability that but for trial counsel's deficiencies, he would have received a

different outcome. Sears v. Upton, 561 U.S. 945 (2010). A reasonable probability

10

569
is a probability sufficient to undermine confidence in the outcome. "It is not

enough for the defendant to show that the errors had some conceivable effect on

the outcome of the proceeding." Strickland, 466 U.S. at 693.

Because a court can make a finding on the prejudice prong of Strickland

without ruling on the deficiency prong, claims of ineffective assistance of counsel

are subject to summary denial when the court can determine the outcome of the

proceeding would not be affected even if counsel were deficient. Franqui v. State,

59 So. 3d 82, 96 (Fla. 2011); Troy v. State, 57 So. 3d 828 (Fla. 2011); Walls v.

State, 926 So. 2d 1156, 1173 (Fla. 2006) (summary denial appropriate on

ineffective assistance of counsel claim where evidence was cumulative). See also

Stewart v. State, 801 So. 2d 59, 65 (Fla. 2001) (where the Strickland standard

requires establishment of both the deficient performance and prejudice prongs,

when a defendant fails to make a showing as to one prong, it is not necessary to

assess the other prong). "Failure to sufficiently allege both prongs results in a

summary denial of the claim." Spera v. State, 971 So. 2d 754, 758 (Fla. 2007)

(citing Thompson v. State, 796 So. 2d 511, 514 fn. 5 (Fla. 2001)).

Summary Denial of Postconviction Claims

A postconviction court's decision whether to grant an evidentiary hearing on

a Rule 3.851 motion is ultimately based on the written materials before the court.

A court may summarily deny a postconviction claim when the claim is legally

II

570
insufficient, procedurally barred, or refuted by the record. See Frangui, 59 So. 3d

at 101; Troy, 57 So. 3d at 840 (citing Owen v. State, 986 So. 2d 534, 543 (Fla.

2008)).

Rule 3.851 (e)(l )(D), Florida Rules of Criminal Procedure, requires a

defendant to include a detailed allegation of the factual basis for any claim for

which an evidentiary hearing is sought. The burden is on the defendant to establish

a legally sufficient claim. Conclusory allegations are not sufficient. See Frangui,

59 So. 3d at 96 (citing Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)). The

trial court may also summarily deny claims that are conclusively refuted by the

record. Id. at 95-96.

The trial court must summarily deny claims that are procedurally barred. Fla.

R. Crim. P. 3.85l(e)(l). The Florida Supreme Court has consistently held that a

claim that could and should have been raised on direct appeal is procedurally

barred. Miller v. State, 926 So. 2d 1243, 1260 (Fla. 2006) (citing Davis v. State,

915 So. 2d 95, 129 (Fla. 2005); Duckett v. State, 918 So. 2d 224, 234 (Fla. 2005);

Robinson v. State, 913 So. 2d 514, 524 fn. 9 (Fla. 2005)).

The Merits

Claim 1: Whether Trial Counsel was Ineffective during the Penalty

Phase of Hilton's Trial

Hilton alleges that trial counsel was ineffective during the penalty phase of

his trial for failing to investigate mitigation, failing to present compelling

12

571
mitigation the defense team possessed, and failing to effectively present the

mitigation evidence they used. (Motion at 5-33) While the State does not concede

that trial counsel was ineffective, the State does not object to an evidentiary

hearing on this claim.Z

Claim 2: Whether Trial Counsel was Ineffective due to Disorganization

and Division, Inconsistent Preparation, Unreasonable Caseloads, and
Unreasonable Strategy

Divisiveness o(the Defense Team

Hilton primarily alleges that his defense team was disorganized and

uncooperative. (Motion at 34-39) Disorganization and lack of cooperation may not

be ideal, but it certainly does not establish ineffectiveness; the Strickland standard

requires specific allegations of deficient performance and the prejudice that

resulted. The alleged deficiencies that Hilton points to, such as the defense theories

used at trial, appear to be reasonable strategic decisions and are not subject to

Strickland relief. "Strategic decisions do not constitute ineffective assistance of

counsel if alternative courses have been considered and rejected and counsel's

decision was reasonable under the norms of professional conduct." Lukehart, 70

2
This claim was previously raised in Claims III, IV, and V in Hilton's first Amended Motion for
Postconviction Relief. The State objected to an evidentiary hearing in its response because the
claims were facially insufficient at that time. As this claim is now facially sufficient, the State
withdraws its objection.
13

572
So. 3d at 512. While the State does not concede that trial counsel was ineffective,

the State does not object to an evidentiary hearing on this claim. 3

Excessive Workload

Hilton submits that the defense team was working under an excessive

caseload and did not spend as much time on Hilton's case as they needed to.

(Motion at 40) Specifically, he alleges the defense team did not have time to

interview all the witnesses and evidence in the case, including the correctional

officer's report documenting Hilton's confession to another inmate. The only

specific error that Hilton alleges is that the defense team overlooked correctional

officer Caleb Wynn's report in the evidence and was unprepared to address his

testimony at trial. (Motion at 41) This allegation is conclusively rebutted by the

record and should be summarily denied.

The record demonstrates that although lead counsel, lnes Suber, objected to

Officer Wynn's testimony due to a discovery violation, she was well prepared to

address his testimony. During opening statement, the State referenced the

substance of Officer Wynn's testimony, and Suber objected, stating she was not

aware of a listed witness that would present such testimony. (R/24:44-46)

Following opening statements, the State and Suber discussed Officer Wynn and the

3
This claim was previously raised in Claim III in Hilton's first Amended Motion for
Postconviction Relief. The State objected to an evidentiary hearing in its response because the
claim was facially insufficient at that time. As this claim is now facially sufficient, the State
withdraws its objection.
14

573
State saw that Suber was in possession of Officer Wynn's statement in a folder on

defense counsel's table. The State asked Suber if she was familiar with Officer

Wynn and his testimony, and Suber confirmed that she was. (R/34:1209-10) When

the State called Officer Wynn to testifY, Suber again objected, stating that Officer

Wynn was never listed as a witness by the State. (R/34:1208)

Suber's handling of Officer Wynn's testimony was effective and did not

reflect a lack of preparation. Suber raised valid objections and succeeded in

excluding one of Hilton's statements that he was "very selective" of the victims he

chose. (R/34:1237) On cross-examination, Suber questioned Officer Wynn about

his report, gaining a concession from him that every detail he testified to on direct

was not in the reports he drafted, and that he never included the victim's name

when documenting Hilton's statements. (R/34:1250-51; 1254) Wynn also admitted

that he did not document anywhere on his daily logs that Hilton and the other

inmate spoke together on the dates he claimed Hilton's admissions occurred.

(R/34: 1259-60) These facts demonstrate that trial counsel was properly prepared to

address Officer Wynn's testimony, and was not deficient in preparing Hilton's

defense.

Furthermore, the record reflects that there were nearly thirty-six months

between the filing of the complaint (February 28, 2008) and the start of jury

selection (January 31, 2011). During that time, Hilton sought and received a

15

574
number of continuances. 4 The defense team had ample time for the three attorneys

assigned to Hilton's case to prepare the case for trial, even in light of a heavy

caseload. The defense deposed hundreds of witnesses listed by the State. Lead

counsel inspected over one thousand pieces of evidence. Furthermore, the trial

docket is riddled with numerous motions filed by trial counsel as well as hearings

held on such motions. The record shows that Hilton's case had been adequately

prepared and litigated pre-trial. The record conclusively rebuts this allegation. See

Roberts v. State, 568 So. 2d 1255, 1259 (Fla. 1990) (defendant must allege specific

facts that are not conclusively rebutted by the record to be entitled to an

evidentiary hearing on a claim of ineffective assistance).

Strickland claims require more than just a showing that trial counsel was

overworked. Hilton must demonstrate with specificity "that counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the defendant

by the Sixth Amendment." Strickland, 466 U.S. at 687. Even if a defendant meets

that threshold, he or she must also prove that such an error prejudiced the defense.

4
In addition to the continuances granted pre-trial, Hilton's lead attorney requested a continuance
on the morning jury selection was scheduled to begin. Counsel did not seek a continuance
because she was unprepared or had not concluded discovery, but because she wanted additional
time to discuss the case with Hilton. The trial court denied this request, finding that counsel had
four more days to have these discussions. (RJI7:7-8) Furthermore, the trial docket is riddled with
numerous motions filed by trial counsel as well as hearings having been held on same. The
record shows that Hilton's case had been adequately prepared and litigated pre-trial.

16

575
Id. As the record conclusively rebuts Hilton's allegations of error, this claim

should be summarily denied.

Claim 3: Whether Trial Counsel was Ineffective for Failing to Present a

Cohesive, United Defense in the Guilt and Penalty Phases of Hilton's
Trial

Hilton alleges that trial counsel was ineffective for presenting a defense

theory of innocence and/or reasonable doubt during the guilt phase and admitting

guilt during the penalty phase. Specifically, Hilton claims the penalty phase theory

was to blame the overprescription of Ritalin for Hilton's sudden change in

behavior and ultimately, the murder, and such a theory was inconsistent with the

guilt phase defense. (Motion at 41-42) This claim is facially insufficient because

Hilton failed to allege any specific basis of prejudice, and it is meritless because

the guilt and penalty phase theories did not conflict with each other.

The record reflects that trial counsel did not argue actual innocence, they

merely attempted to demonstrate that there was reasonable doubt in the State's

case. The approach was comprised of pointing out inconsistencies in the evidence,

highlighting unanswered questions, and focusing on other areas of reasonable

doubt, which was a reasonable trial strategy. (R/24:47-55; 37:1529-60) Notably, it

is common practice for trial attorneys to have their clients enter a not guilty plea,

proceed to trial on a reasonable doubt defense, and then plea for mercy in the

penalty phase. Raising such a defense did not assert factual innocence in this case,

17

576
as Hilton appears to allege, and thus, it was not inconsistent with the penalty phase

theory.

Furthermore, Hilton has failed to allege any specific basis of prejudice.

Hilton claims that the inconsistent theories diminished the defense team's

credibility in front of the jury, and the defense team should have used a different

guilt phase theory. (Motion at 42) However, he fails to allege how a change to the

guilt phase theory would have resulted in a life sentence. Even if diminished

credibility, standing alone, could establish prejudice, the record refutes Hilton's

allegation that the guilt and penalty phase theories were inconsistent. As Hilton's

claim is facially insufficient and meritless, it should be summarily denied.

Claim 4: Whether Hilton is entitled to Relief Pursuant to Hurst v.

Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla.
2016)

Hilton claims that he is entitled to a new penalty phase pursuant to Hurst v.

Florida, 136 S. Ct. at 616, and Hurst v. State, 202 So. 3d 40 (Fla. 2016). Hilton is

not entitled to relief because the unanimous death recommendation from the jury in

his case, combined with the overwhelming evidence supporting the aggravators in

this case, renders any Hurst error harmless. Hilton's claim is without merit and the

facts are fully contained in the record, thus the claim should be summarily denied.

A proper harmless error analysis inquires whether the record demonstrates

beyond a reasonable doubt that the jury would have unanimously recommended

18

577
death had it been instructed in accordance with Hurst v. State. See Hurst v. State,

202 So. 3d at 68 (analyzing whether the jury's failure to unanimously find all the

facts necessary for imposition of the death penalty contributed to Hurst's death

sentence); see also Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007) (explaining

that the harmless error analysis for a violation of Apprendi v. New Jersey, 530 U.S.

466 (2000), is whether the record demonstrates beyond a reasonable doubt that a

rational jury would have found penetration when there was a failure to have the

jury make the victim injury finding regarding penetration).

Any Hurst error in Hilton's case is plainly harmless because the jury in his

case voted unanimously to impose the death penalty. The Florida Supreme Court

has consistently found Hurst error harmless in cases with similar circumstances

where the jury unanimously voted to impose the death penalty. Davis v. State, 207

So. 3d 177 (Fla. 2016); King v. State, 211 So. 3d 866 (Fla. 2017); Truehill v. State,

211 So. 3d 930 (Fla. 2017); Jones v. State, No. SC14-990 2017 WL 823600 (Fla.

March 2, 2017); Oliver v. State, No. SC12-3150 2017 WL 1282098 (Fla. April 6,

2017); Morris v. State, No. SC14-1317 2017 WL 1506853 (Fla. April 27, 2017);

Tunidor v. State, No. SC14-2276 2017 WL 1506854 (Fla. April 27, 2017). In light

of the Florida Supreme Court's decisive precedent, the jury's unanimous death

recommendation in this case renders any Hurst error in this case harmless.

19

578
 Hilton asserts multiple flawed reasons for this Court to depart from the

Florida Supreme Court's decisive precedent and find harmful Hurst error in his

case. Firstly, Hilton argues that he should get relief because his jury made a

general recommendation of death, instead of express findings regarding the

aggravators that were proven, the sufficiency of the aggravators, and the weighing

of the aggravation and mitigation. (Motion at 47-48) Such logic would render

every Hurst error harmful, which was clearly not the intent of the Florida Supreme

Court. In Davis, the Court found Hurst error harmless, notwithstanding the juries'

general death recommendations. In Davis, the Court highlighted the unanimous

verdict, saying such a verdict reassured the Court that a rational jury would have

unanimously found that there were sufficient aggravators to outweigh the

mitigators. Davis, 207 So. 3d at 211-12.

Hilton further alleges the jury instructions in his case misled the jury about

the significance of their role in sentencing by telling the jury that its sentence was

advisory. (Motion at 49-50) Firstly, these instructions do not mislead the jury. A

jury's sentence verdict is advisory and the trial court has the authority to depart

from a jury's death recommendation and impose a life sentence when it sees fit.

This fact has not changed as a result of Hurst. See § 921.141(2)(3), Fla. Stat.

(2017) (referring to jury's sentencing verdict as a "recommendation" to the court).

Secondly, in Truehill, the Court specifically noted that, much like Hilton's case,

20

579
the trial court instructed the jury that the verdict was advisory. 211 So. 3d at 955.

These facts did not sway the Court's conclusion that any Hurst error was harmless

because the jury was instructed on the proper considerations in making a sentence

recommendation, and the Court could conclude based on the unanimous

recommendation that the jury made the constitutionally required findings. Id. at

955-57. Like Truehill, Hilton's jury was instructed that it needed to determine

whether sufficient aggravators existed and, if so, whether the aggravation

outweighed the mitigation before the death penalty could be imposed. It was also

instructed that it was not required to enter a death sentence, even if all the

sentencing requirements were met. (R/12:2307-14) The jury instructions reflect the

requirements described in Truehill and support the conclusibn that any Hurst error

is harmless beyond a reasonable doubt.

Hilton also raises the tenuous argument that trial cbunsel's penalty phase

approach "may" have been different if the jury instructions complied with Hurst

and that the trial court "may" have imposed a life sentence if it had been bound by

the jury findings. He claims that this possibility renders Hurst error harmful.

(Motion 51-54) These arguments are unpersuasive because they are highly

speculative and because the Florida Supreme Court has not found such speculative

questions to be persuasive in the numerous cases where a unanimous verdict has

rendered Hurst relief harmless. Notably, the Court has not found Hurst relief to be

21

580
harmful in any cases that included a unanimous jury recommendation. Speculative

arguments like Hilton's have not been persuasive before the Florida Supreme

Court and they should not be persuasive here.

Finally, Hilton argues that because the jury's verdict was constitutionally

flawed due to a Hurst error, the Sixth Amendment compels this court to reject the

verdict as a factor in this Court's harmless error analysis. (Motion 56-57) He

claims that "before a reviewing court may apply harmless error analysis, there

must be a valid jury verdict." (56) Such an argument would render it impossible to

apply harmless error review to any case involving a Hurst error. The argument also

encourages this Court to break from established Florida Supreme Court precedent,

which it cannot do. State v. Herring, 76 So. 3d 891, 897 (Fla. 2011); State v.

Dwyer, 332 So. 2d 333, 335 (Fla. 1976) ("Where an issue has been decided in the

Supreme Court of the state, the lower courts are bound to adhere to the Court's

ruling when considering similar issues, even though the court might believe that

the law should be otherwise"). The Florida Supreme Court has considered the

argument that harmless error review is inapplicable to Hurst errors, and has

rejected it outright. Johnson v. State, 205 So. 3d 1285, 1289-90 (Fla. 2016).

Furthermore, the Florida Supreme Court repeatedly uses unanimous verdicts as a

factor in evaluating whether a Hurst error is harmless. Davis, 207 So. 3d at 177;

King, 211 So. 3d at 866; Truehill, 211 So. 3d at 930. The suggestion that the Sixth

22

581
Amendment prohibits Florida Supreme Court's use of unanimous verdicts in

evaluating harmless Hurst errors is entirely unsupported by the law.

Any Hurst error is harmless because Hilton's case contained overwhelming

evidence of guilt, including numerous incriminating statements to or in the

presence of officers. The facts of the murder are egregious and fully support the

aggravation in this case. Considering the significant evidence of guilt, weighed

against the unpersuasive mitigation, and the unanimous death recommendation

from the jury, any Hurst error is clearly harmless beyond a reasonable doubt.

Claim 5: Whether Trial Counsel was Ineffective for Failing to Object to

Hilton's Eligibility for the Death Penalty

Hilton claims that his mental illness makes him ineligible for the death

penalty under the Eighth Amendment. This argument appears to be twofold: Hilton

claims that his death sentence should be vacated because his mental illness 5 renders

him ineligible for the death penalty, and he claims his trial counsel was ineffective

for not raising this claim at his trial. Hilton is not entitled to relief on this claim

because it is unripe and existing law in Florida does not recognize mental illness as

a valid bar to application of the death penalty.

Hilton is eligible for the death penalty because he does not fall into any class

that is excluded from application of the death penalty under the Eighth

5
Hilton notes various mental conditions relevant to this claim, including brain damage,
pervasive drug use in his youth, multiple sclerosis, schizoaffective disorder, and exhibitions of
"bizarre" behavior. (Motion at 61-62)
23

582
Amendment. In advancing his argument, Hilton attempts to draw similarities

between his conditions and those who are ineligible for execution, such as

juveniles and those who are intellectually disabled. However, unlike Hilton's

mental health conditions, age and intellectual disability are clearly established

categorical bars to execution. See Roper v. Simmons, 543 U.S. 551 (2005)

(prohibiting the death penalty for defendants who committed their crimes before

age 18); Atkins v. Virginia, 536 U.S. 304 (2002) (prohibiting the death penalty for

defendants who are intellectually disabled). Hilton claim seeks the recognition of a

new fundamental constitutional right, for which there is no support in the law.

Assuming Hilton is afflicted with the conditions he alleges, Power v. State,

992 So. 2d 218 (Fla. 2008), holds that those alleged diagnoses would not serve as a

bar to execution. "[N]either this Court nor the Supreme Court has recognized

mental illness as a per se bar to execution." Id. at 222; see Johnston v. State, 27 So.

3d 11 (Fla. 2008) (finding that Johnston's reliance on Roper, 543 U.S. at 551 and

Atkins, 536 U.S. at 304, was misplaced when he was neither a minor nor one who

was insane or mentally retarded); Lawrence v. State, 969 So. 2d 294, 300 (Fla.

2007) (rejecting proposition that the Equal Protection Clause requires extension of

Atkins to the mentally ill due to their reduced culpability); Simmons v. State, 105

So. 3d 475, 511 (Fla. 2012) (rejecting claims that defendants with mental illness

must be treated similarly to those with mental retardation due to reduced

24

583
culpability). The law is very clear that a categorical bar to execution does not

extend to mental illness. Thus, this claim is meritless.

In the event that Hilton is attempting to allege that his mental illness renders

him legally insane, and thereby incompetent to be executed, such a claim is unripe

for review. While mental illness is not a legal bar to execution, as discussed supra,

mental illness that rises to the level of legal insanity may prohibit execution. Legal

insanity, also called a Ford 6 claim, addresses whether a defendant is competent to

be executed, and must be raised pursuant to a specific statutory procedure.

Section 922.07, Florida Statutes, sets forth the procedure to be followed in

raising a Ford claim, vesting the power in the governor to determine whether a

defendant is insane. Insanity is a bar to execution when a person "lacks the mental

capacity to understand the fact of the impending execution and the reason for it."

Fla. R. Crim. P. 3.81l(c). In Goode v. Wainwright, 448 So. 2d 999 (Fla. 1984), the

Florida Supreme Court held that the governor has the inherent right to make the

determination as to sanity of an individual who has been sentenced to death.

Furthermore, Rule 3.8ll(c), Florida Rules of Criminal Procedure, states, "No

motion for a stay of execution pending hearing, based on grounds of the prisoner's

insanity to be executed, shall be entertained by any court until such time as the

Governor of Florida shall have held appropriate proceedings for determining the

6
Ford v. Wainwright, 477 U.S. 399 (1986).
25

584
issue pursuant to the appropriate Florida Statute." Hilton's Ford claim is unripe

because he has not followed the proper statutory procedure for raising such a

claim.

Finally, trial counsel was not ineffective for failing to argue that Hilton's

mental illness renders him ineligible for the death penalty because such a claim is

without legal merit. As discussed in detail, supr1!, Hilton's claim is entirely

meritless and unripe for review. Counsel cannot be ineffective for refusing to raise

a frivolous claim. See Lockhart v. Fretwell, 506 U.S. 364 (1993) (trial counsel's

failure to raise unethical or frivolous claims does not violate Strickland); Nix v.

Whiteside, 475 U.S. 157 (1986) (trial counsel's refusal to participate in client's

false testimony was not a Strickland violation). Furthermore, because this claim

would not warrant relief if trial counsel had raised it, there is no prejudice. As

such, this claim is meritless and should be summarily denied.

Claim 6: Whether Trial Counsel was Ineffective for Failing to Preserve

for Appeal the Denial of Cause Challenges During Jury Selection 7

Hilton puts forth a conclusory claim that trial counsel was ineffective for

failing to preserve the denial of cause challenges in accordance with Trotter v.

State, 576 So. 2d 691 (Fla. 1990), so that such denials could be raised on appeal.

(Motion at 73) This claim fails for three reasons: trial counsel was not deficient

7
This claim is sequentially numbered as Claim 6 but Hilton's Motion, presumably due to
typographical error, has this claim listed as Claim 7. (Motion at 73)
26

585
because she followed proper procedures during jury selection; Hilton is unable to

demonstrate prejudice by showing that an actually biased juror sat on his jury; and

this claim is insufficiently pled.

Firstly, trial counsel followed the procedure set forth in Trotter v. State for

preserving the denial of cause challenges for appeal. Trotter requires that trial

counsel demonstrate on the record that all peremptories have been exhausted and

that a specific objectionable juror has been seated on the jury that counsel would

strike if he or she had a peremptory challenge available. 576 So. 2d at 693. Suber

followed the Trotter procedure during jury selection. After Suber's request for

additional peremptory challenges was denied, she laid a record identifying a juror

she would have liked to remove by use of a peremptory challenge. She stated, "I

am required to state whoever, pursuant to - I would like to keep, the record reflect

that ifl were to be granted peremptory, I would strike Rice, Sally, Rice, because of

her views on the death penalty." (R/23:1077) Counsel cannot be deemed

ineffective for failing to do something that she, in fact, did. Bates v. State, 3 So. 3d

1091, 1106 fn. 20 (Fla. 2009) (observing that counsel cannot be held ineffective for

what counsel actually did); Stephens v. State, 975 So.2d 405, 415 (Fla. 2007)

(explaining that counsel cannot be deemed ineffective for failing to object, when,

in fact, he did).

27

586
 Secondly, Hilton cannot satisfy Strickland's prejudice prong because there is

nothing in the record that demonstrates that any of the jurors seated in Hilton's

case were actually biased. A Strickland claim related to jury selection requires

proof, plain on the face of the trial record, that an actually biased juror sat in the

case. In Carratelli v. State, 961 So. 2d 312 (Fla. 2007), the Florida Supreme Court

concluded that a Strickland claim for failing to preserve a denial of a challenge for

cause must establish that an actually biased juror sat on the jury, and such bias

must be plain on the face of the record. The court went on to define an actually

biased juror as one who is not impartial; one who is biased 8 against the defendant.

Id. at 324.

Here, Hilton has failed to allege that any of the jurors were actually biased.

Furthermore, nothing in the record indicates that any of the jurors were actually

biased. If Hilton cannot identify specific jurors that were actually biased, he cannot

demonstrate prejudice.

Finally, this claim is insufficiently pled. Hilton has simply alleged that trial

counsel was ineffective because cause challenges were not preserved. He does not

identify which cause challenges counsel should have preserved, nor does he

8
Actual bias means bias-in-fact that would prevent service as an impartial juror. See United
States v. Wood, 299 U.S. 123, 133-34 (1936) (stating, in a case where U.S. government
employees served as jurors in a criminal case prosecuted by the U.S. government, that the jurors'
employment status did not automatically disqualify them, but the defendant had the ability
during voir dire to "ascertain whether a prospective juror ... has any bias in fact which would
prevent his serving as an impartial juror").
28

587
identify which jurors who remained on his jury were biased. He simply makes

conclusory allegations. To be entitled to relief, the movant must allege specific

facts. The defendant "bears the burden of establishing a prima facie case based

upon a legally valid claim." Hannon v. State, 941 So. 2d 1109, 1139 (Fla. 2006)

(explaining that where a movant presents only bare conclusory allegations on

several issues, summary denial was proper). For these reasons, this claim should be

summarily denied.

Claim 7: Cumulative Error

Hilton alleges that he did not receive a fair trial due to the numerous errors

in his case. He asserts that the errors complained of in his Motion tainted his case

and these errors are not harmless. (Motion at 74). Cumulative error relief is not

warranted in Hilton's case because there were no individual errors in his case.

The United States Supreme Court has never addressed the issue of

cumulative error. Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir. 1992) (en

bane) (noting the Supreme Court has not directly spoken regarding cumulative

error). Cumulative error analysis is problematic because it is an open admission

that none of the individual errors warrants reversal while asserting that the

combined effect of legally insufficient claims still merits relief. Id. at 1456 (en

bane) ("[t]hat the constitutionality of a state criminal trial can be compromised by

29

588
events none of which individually violated a defendant's constitutional rights

seems a difficult theoretical proposition").

Although Hilton presents this claim as an independent basis for relief, a

cumulative error claim cannot warrant relief unless the trial court finds specific

claims of error meritorious. Israel v. State, 985 So. 2d 510, 520 (Fla. 2008)

(holding where individual claims of error are meritless or procedurally barred, a

defendant is not entitled to relief based on cumulative error). Because all of

Hilton's claims are meritless, he is not entitled to cumulative error relief. See

Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003) ("[W]here individual claims of error

alleged are either procedurally barred or without merit, the claim of cumulative

error must fail.); Vining v. State, 827 So. 2d 201, 219 (Fla. 2002) (where the

defendant's claims were either meritless, procedurally barred, or did not meet the

Strickland standard, his cumulative error claim necessarily failed). Accordingly,

Hilton is not entitled to relief under this claim.

CONCLUSION

WHEREFORE, the State prays this Court schedule a Case Management

Conference within 90 days as required by Rule 3.851(f)(5)(A), and summarily

30

589
deny Claims 2(II), 3-6 9and suspend ruling on Claim 7 until completion of the

evidentiary hearing.

Respectfully submitted,

PAMELA JO BONDI
ATTORNEY GENERAL

Is/ Jennifer L. Keegan

JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL
Florida Bar No.: 0105283
PL-01, The Capitol
Tallahassee, FL 32399-1050
jennifer.keegan@myfloridalegal.com
capapp@myfloridalegal.com
Phone: (850) 414-3579
Co-counsel for the Plaintiff

JACK CAMPBELL
STATE ATTORNEY

Is/ Georgia Cappleman

GEORGIA CAPPLEMAN
ASSISTANT STATE ATTORNEY
Florida Bar No.: 566071
301 South Monroe St., Ste. 475
Tallahassee, FL 32301-1861
capplemang@leoncountyfl.gov
Phone: (850) 606-6062
Co-counsel for the Plaintiff

9
This claim is sequentially numbered as Claim 6 but Hilton's Motion, presumably due to
typographical error, has this claim listed as Claim 7. (Motion at 73)

31

590
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished via the eportal to Robert A. Morris, Esq., alex@ramlawyer.com,

Attorney for the Defendant; and the Office of the State Attorney,

SA02_Leon@leoncountyfl.gov; this 15th day of May, 2017.

Is/ Jennifer L. Keegan

JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL

32

591
Filing# 57759744 E-Filed 06>.: ;/2017 03:08:50 PM
IU.

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN AND
FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,
CASE NO.: 2008 CF 697
vs.

GARY MICHAEL HILTON,

Defendant.
----------------------------~1
ORDER DISMISSING WITH LEAVE TO AMEND CLAIM 6 OF DEFENDANT'S
MOTION FORPOST-CONVICTION RELIEF

THIS CAUSE came before the Court upon Defendant's Second Amended Motion for
Post-Conviction Relief filed on April 20, 2017. The Court having considered the motion,
reviewed the court record, and being otherwise fully advised, hereby finds as follows:
Defendant raises seven claims in his Second Amended Motion for Post-Conviction
Relief. Defendant's Claim 6 1 is legally insufficient and is therefore dismissed with leave to
amend within thirty (30) days.
It is therefore
ORDERED AND ADJUDGED that Claim .6 of Defendant's Second Amended Motion
for Post-Conviction Relief filed on April 20, 2017, is hereby DISMISSED with leave to amend
within thirty (30) Days.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this (L£ +""-
day of June,

2017.

ES C. HANKINSON
IRCUIT JUDGE
Copies:
State Attorney's Office

Robert A. Morris Esq.

911 E. Park Avenue
Tallahassee, FL 32301

1
The 6~ claim nlised in Defendant's motion is titled c.laim 7. To avoid confusion this Court will refer to that claim
as Claim (). The claim in question is titled, "Trial counsel was ineffective for their failure to preserve for appeal the
denial of cause challenges during jury selection."

592
Filing# 59026323 E-Filed 07/14/2017 12:02:36 PM

IN THE CffiCUIT COURT OF THE

SECOND JUDICIAL CffiCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF-697A

vs. DIV.: FELONY

GARY MICHAEL IDLTON, DEATH PENALTY

Defendant.
------------------~/

UNOPPOSED MOTION FOR EXTENSION OF TIME FOR LEAVE TO AMEND

MOTION FOR POST-CONVICTION RELIEF

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, and moves this Court for an extension of time to amend the Second Amended Motion

for Post-Conviction Relief and in support thereof states as follows:

1) Defendant's Second Amended Motion for Post-Conviction Relief was filed on April

20,2017.

2) The Court entered an order dismissing Defendant's Claim 6 as being legally

insufficient on June 14, 2017. The Court granted leave to amend the claim within

thirty (30) days.

3) The undersigned was scheduled to meet with the Defendant to review the amended

claim late last week and earlier this week so it could be timely filed. That meeting

was cancelled because of illness. The undersigned, his wife and children have all

been ill with a stomach virus that has been relentless and incapacitating. Several

593
 doctor visits and sleepless nights have been the nonn as it has moved from one person

to the other.

4) The undersigned requests a brief extension of time within which to amend Claim 6.

Counsel requests seven (7) days until July 21, 2017 within which to amend. This will

afford Counsel time to finalize the amendment and to review the amendment with the

Defendant. No further extensions will be sought.

5) The undersigned has conferred with Assistant State Attorney Georgia Cappleman and

she has no objection to the requested extension.

WHEREFORE the Defendant requests the entry of an order granting a seven (7) day

extension of time to July 21, 2017 to amend Claim 6.

Respectfully submitted,

ROBERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue.
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com

594
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

jennifer.keegan@mvfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 14th day ofJuly, 2017.

ROBERT A. MORRIS, ESQUIRE

595
Filing# 59099367 E-Filed 011. i/2017 01:57:06 PM
11

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

vs.
CASE NO. 2008-CF-697 A
DIVISION: FELONY

DEATH PENALTY
GARY HILTON,
Defendant.
I

ORDER ON UNOPPOSED MOTION FOR EXTENSION OF TIME

THIS CAUSE, having come before the Court upon the Defendant's Unopposed Motion

for Extension of Time for Leave to Amend Motion for Post-Conviction Relief; and this Court

having reviewed the Motion and heard arguments of counsel and being otherwise fully advised

in the premises, it is therefore

ORDERED AND ADJUDGED that the Defendant's Motion is hereby:

X GRANTED and any amendment to Claim 6 of the Defendant's motion for

post-conviction relief shall be filed on or before July 21, 2017.

_ _ _ DENIED

DONE AND ORDERED in Chambers, Tallahassee, Leon County, Florida on this

"-1-\I.A..
~day of July, 2017.

JAMESC'~
I

CIRCUIT JUDGE
COPIES FURNISHED TO:
ROBERT A. MORRIS, ESQUIRE
Attorney for Defendant

GEORGIA CAPPLEMAN, ESQUIRE

Assistant State Attorney

JENNIFER KEEGAN, ESQUIRE

Assistant Attorney General

596
Filing# 59308067 E-Filed O'L0/2017 04:04:30 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FL
STATE OF FLORIDA,

CASE NO.: 2008-CF-697

SPN: 197149
vs.

GARY M. HILTON, DEATH PENALTY

Defendant.
----------------------~/

MOTION TO INCUR COSTS RELATED TO DR. THOMAS HYDE, M.D., Ph.D.

COMES NOW the Defendant, by and through the undersigned counsel, and moves to

incur costs and in support thereof, shows the following:

l. The Defendant is indigent and the undersigned was appointed by the Court to

represent the Defendant.

2. As the Comi is aware, the instant matter is a post-conviction proceeding in a

death penalty case.

3. The Defendant has presented multiple claims alleging ineffective assistance of

counsel. Among those claims and related to the claims are that the Defendant's

trial counsel failed to adequately investigate neurological and psychological

conditions and failed to present evidence of those neurological and psychological

conditions.

4. The Defendant has recently undergone psychological and neuropsychological

testing. Those results need to be evaluated and interpreted by a qualified expert in

order to present the evidence to the Court during an evidentiary hearing.

597
5. To that end, the defense seeks for the Court to grant approval to incur costs for the

services of Dr. Thomas Hyde, M.D., Ph.D. Dr. Hyde is a Professor of Psychiatry

and Behavioral Science as well as a Professor ofNeurology at Johns Hopkins

University School of Medicine. He received his Bachelor's Degree (1978), his

Medical Degree (1984) and his Doctoral Degree (1984) from the University of

Pe1msylvania. Dr. Hyde's curriculum vitae is attached hereto.

6. Dr. Hyde has been qualified as an expert witness in multiple Florida courts. He

has served as a court appointed expe1t on multiple occasions.

7. Dr. Hyde needs to conduct a preliminary examination of the Defendant based on

the historical materials available as well as the materials that ha.ve been assembled

by other experts and professional during the pendency of this post-conviction

proceeding. In doing so, he desires the records that have been compiled related to

the Defendant's neurological and psychological condition and an in-person

!Ileeting with the Defendant. This is necessary prior to making a determination of

the necessity of lumbar testing or magnetic resonance imaging testing.

Preliminary indications are that the Defendant has/had a neurological disease that

was not investigated and was not presented in the penalty phase of the

Defendant's trial.

8. Dr. Hyde requests initial authorization for 40 hours with leave to seek additional

authorization. Dr. Hyde's rates are $300.00 per hour and $150.00 per hour for

travel.

9. c·ounsel has bee.n l!nable to locate an expert in Dr. Hyde's field within the local

area or within the State of Florida that has the same expertise, qualifications,

598
 research experience, willingness to be involved, and courtroom experience.

Moreover, Dr. Hyde has been authorized as an expert in multiple jurisdictions

within the State of Florida in post-conviction proceedings involving the death

penalty.

10. The defense has previously sought leave to incur costs for a forensic psychologist.

Dr. Hyde's expertise has been recommended by multiple doctors and evaluators

based on the necessity of gaining his expertise which is separate and apart from

the

II. The undersigned counsel has contacted Brad Bischoff, Esq. of the Justice

Administrative Commission to ask for his position on the instant motion. The

Justice Administrative Commission generally objects to "out of state experts," but

defers to the Court's discretion in this matter. Mr. Bischoff advised that the

Justice Administrative Commission will file an objection or any opposition to the

instant motion.

WHEREFORE, the defense requests this Court enter an order authorizing the defense to

incur costs as set fmih above.

Respectfully submitted,

IS/ Robert A. Morris:=:--=c::-:::-:-::::-::::--

ROBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue.
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com

599
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Coutihouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4111 Floor, 301 S. Monroe Street, Tallahassee, FL, and Je1mifer Keegan,

jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-0 1 The Capitol, Tallahassee, Florida 32399-1050, Brad Bischoff, Esq., Justice Administrative

Commission, P.O. Box 1654, Tallahassee, Florida 32302, pleadings@justiceadmin.org on this

20111 day of July, 2017.

IS/ Robert A. Morris=-=-:c-::c=-==-=---

ROBERT A. MORRIS, ESQUIRE

600
 Thomas Michael Hyde, M.D., Ph.D.

Chief Medical Officer, Lieber Institute for Brain Development, 655 North Wolfe
Street, Third Floor, Ranges Building, BaiHmore, Maryland 21205
Office Telephone: 410~955~0443

PERSONAL INFORMATION:

Date of Birth: June 5, 1956

Place of Birth: Toronto, Ontario, Canada
Citizenship: United States of America
Marital Status: Married
Residence: 2829 (3reenvale Street, Chevy Chase, Maryland 20815
Telephone: (301) 652-8777

EDUCATIONAL BACKGROUND:

1974·1978 B.A., Department of Biology, College of Arts and

Sciences, University of Pennsylvania, Philadelphia,
Pennsylvania.

1978-1984 M.D., School of Medicine, University of Pennsylvania,

Philadelphia, Pennsylvania.

1978-1984 Ph.D., <3raduate Group in Anatomy, Faculty of Arts and

Sciences, University of Pennsylvania, Philadelphia,
Pennsylvania.

1984-1985 General Medica/Internship, Department of Medicine,

Presby1erian-University of Pennsylvania Medical
Center, Philadelphia, Pennsylvania.

1985-1987 Neurology Residency, Department of Neurology,

Stanford University Medical Center, Stanford,
California.

1987-1988 Chief Resident in Neurology, Department of Neurology,

Stanford University Medical Center, Stanford,
California.

1990 Board Certification in General Neurology, American

Academy of Neurology.

EMPLOYMENT AND APPOINTMENTS:

1988-1996 Director, Neurology Consultation Services, Clinical

Brain Disorders Branch, Nationallnsti)Ute of Mental
Health, St. Elizabeths Hospital, Washington, D.C.

601
1988-1996 Special Volunteer, Laboratory of Neuropathology,
Clinical Brain Disorders Branch, National institute of
Mental Health, Washington, D.C.

1988-2010 Private Practice, Behavioral Neurology and

Neuropsychiatry, Chevy Chase, Maryland.

1996-2010 Senior Staff Scientist, Neuropathology Section, Clinical

Brain Disorders Branch, National institute of Mental
Health, IRP, NIH, Bethesda, Maryland.

1990-present Clinical Instructor, Department of Neurology, George

Washington University Medical School, Washington,
D.C.

2010-2011 Acting Chief Operating Officer, Lieber Institute for Brain

Development, Baltimore, Maryland.

2010-2016 Chief Operating Officer, Lieber Institute for Brain

Development, Baltimore, Maryland.

2010-2013 Special Volunteer, Neuropathology Section, Clinical

Brain Disorders Branch, National institute of Mental
Health, IRP, NIH, Bethesda, Maryland.

2012-present Adjunct Professor, School of Life Sciences, Peking

University, Beijing, China.

2013-present Associate Professor, Department of Psychiatry and

BehaVioral Sciences, Johns Hopkins School of
Medicine, Baltimore, Maryland.

2013-present Associate Professor, Department of Neurology, Johns

Hopkins School of Medicine, Baltimore, Maryland.

2013-2015 Member, State of Maryland Life Sciences Advisory

Board, Annapolis, Maryland.

2014-present Member, Scientific Advisory Board, A Foundation

Building Strength, Research and Development
Committee, Palo Alto, California.

2014- present Expert Reviewer, Canadian Foundation for Innovation,

Toronto, Ontario, Canada.

2014-present 13oard of Directors, Sheppard Pratt Lieber Research

Institute, Towson, Maryland.

2016-present Chief Medical Officer, Lieber Institute for Brain

Development, Baltimore, Maryland.

2017-present Conference Chair-elect, Winter Conference on Brain

Research.

602
AWARDS AND HONORS:

1974 Valedictorian
Magruder Senior High School
Rockville, Maryland

1974-1978 Dean's List

University of Pennsylvania
Philadelphia, Pennsylvania

1976-1984 University Scholar

School of Medicine and Graduate Group in Anatomy
University of Pennsylvania

1977 Phi Beta Kappa

University of Pennsylvania

1978 B.A. Summa cum Laude

University of Pennsylvania

1978 Grass Foundation Research Award

Graduate Group in Anatomy
University of Pennsylvania

1979-1984 Predoctoral Fellow

Medical Scientist Training Program
School of Medicine and Graduate Group in Anatomy
University of Pennsylvania

1983 Roy G. Williams Award tor Excellence in Research

School of Medicine and Graduate Group In Anatomy
University of Pennsylvania

1984 Outstanding Clinician-Researcher in Senior Class

School of Medicine and Graduate Group in Anatomy
University of Pennsylvania

1999 National institutes of Health Director's Award

National institutes of Health
Bethesda, Maryland

2008 Awarded membership in the American College of

Neuropsychopharmacology

2010 Guest Lecturer, Cold Spring Harbor Laboratory

Banbury Seminars, Workshop on Schizophrenia and
Related Disorders, June 9 -June 15, 201 0
"Postmortem Gene Expression in Neurodevelopment"

2015 Appointed as a Fellow in the American College of

Neuropsychopharmacology

603
PROFESSIONAL ASSOCIATIONS:

Society for Neuroscie.nce

American Medical Association
American Academy of Neurology
District of Columbia Medical Society
Society of Biological Psychiatry
American College of Neuropsychopharmacology

RESEARCH FUNDING:

1989-1991 National Alliance for Research on Schizophrenia and

Depression
Young Investigator Award

1989-1991 Tourette Syndrome Association

Independent Research Grant

1996-present Research funding through the Intramural Research

Program of the National Institute of Mental Health

SELECTED INVITATIONAL LECTURES:

February 11, 2013 Symposium: "The Complexity of Genetic Risk for

Schizophrenia", Department of Psychiatry, School of
Medicine, University of Bari, Bari, Italy

March 18, 2013 Invitational Lecture: "GABA Signaling Abnormalities in

Schizophrenia", Departments of Psychiatry, Genetics,
and Neuroscience, Oxford University School of
Medicine, Oxford, England, United Kingdom

Apri124, 2013 Symposium: "Next-Generation Sequencing

Approaches to Schizophrenia and its
Neurodevelopmental Origins", 141h International
Congress on Schizophrenia Research, Orlando,
Florida.

April 25, 2013 Symposium: "BrainCioud: an Integrative Approach to

Genomic Brain Research", 141h International Congress
on Schizophrenia Research, Orlando, Florida.

May 25,2013 Plenary Speaker, "GABA Signaling Abnormalities,

Allelic Variation, Neurodeveloprilent, and
1
Schizophrenia", i> h Macedonian Psychiatric Congress
and International Meeting, Orhid, Macedonia.

April19, 2014 Keynote Speaker, "Postmortem Human Brains

Dedicated to Neuropsychiatric Disease Rese.arch",
International Workshop on Human Braih Banking in

604
 China, Changsha, China.

April 25, 2014 Keynote Speaker, "Postmortem Human Brain Studies

in Major Mental Illnesses", International Workshop on
Human Brain Banking in China, Satellite Symposium,
Beijing, China.

April 30, 2014 Keynote Speaker, "Post-mortem Human Brain Studies

in Developmental Neuropsychiatric Disorders", 1' 1
Lieber Institute-Peking University Joint Translational
Neuroscience Institute Meeting, Beijing, China.

May 16, 2014 Keynote Speaker, "Post-mortem Human Brains and

Neuropsychiatric Disease: Acquisition,
Characterization, and Uses of Post-mortem Tissues",
Multi-ITN IN-S ENS, Deciphering Inter- and Intracellular
Signaling in Schizophrenia, Dusseldorf, Germany.

October 10,2014 Guest Speaker, "GABA Signaling Abnormalities and

Schizophrenia: Neurodevelopment and Genetic Risk",
Netherlands Brain Bank, Netherlands Institute for
Neuroscience, Amsterdam, Netherlands.

October 15,2014 Symposium Speaker, "Genetic Risk,

Neurodevelopment, and the Molecular Pathology of
Schizophrenia", World Congress of Psychiatric
Genetics, Copenhagen, Denmark.

November 13,2014 Grand Rounds, "GABA Signaling Abnormalities and

Schizophrenia: Postmortem Human Brain Studies",
Department of Pharmacy Practice, University of Illinois-
Chicago, Chicago, Illinois.

November 20, 2014 Grand Rounds, "Leiber Institute for Brain Development:
Genetics and Molecular Pathology of Complex
Developmental Brain Disorders", Department of
Neurosurgery, Johns Hopkins School of Medicine,
Baltimore, Maryland.

March11,2015 Keynote Speaker and Symposium Discussant,

"Boosting Brain Innovation: A New Path Forward:
Ueber Institute for Brain Developmenf'. Brain Tech
2015, Tel Aviv, Israel.

November 12,2015 Keynote Speaker, "Building a Better Human Brain

Tissue Repository", Seoul National University Hospital
Commemorative Symposium, Seoul, Korea.

ADDITIONAL ACTIVITIES:

1990-1993 Volunteer, Whitman-Walker Clinic, AIDS Testing

Section

605
1992-present Member, Program Committee, Winter Conference on
Brain Research

1992-1995 Chairman, Radiation Drug Research Committee,

Neu.roscience Research Center, National institute of
Mental Health

1993-1994 Member, Montgomery County, Maryland AIDS Task

Force

1993-1995 Member, Program Committee, Annual Meeting of the

American Academy of Neurology

1993-1994, 1998-2000 Member, Program Committee, Annual Meeting ol the

Society of Biological Psychiatry

1995-1997 Member, Board, Epilepsy Foundation for the National

Capitol Area

1998-present Member, Advisory Board to Board of Directors, Greater

Washington Chapter, Tourette Syndrome Association

606
1999-2002 Member, Board of Directors, Winter Conference on
Brain Research

2000-2013 Member, Editorial Advisory Board, Journal of Chemical

Neuroanatomy

2004-present Member, Editorial Advisory Board, Current Psychiatry

Reviews

2006-present Member, Scientific Advisory Council, American

Foundation for Suicide Prevention

2007-present Member, Editorial Advisory Board, The Open

Psychiatry Journal

2013-2015 Member, State of Maryland Life Sciences Advisory

Board

2016 External Reviewer, MRC Centre for

Neurodevelopmental Disorders, London, England,
United Kingdom.

607
PUBLICATIONS:

ORIGINAL RESEARCH PUBLICATIONS:

1. HydE), T.M. and R.R. Miselis. Effects of area postrema/caudal medial nucleus of the solitary
tract lesions on food intake and body weight. American Journal of Physiology. 244: 577-587,
1983.

2. Hyde, T.M. and R.R. Miselis. Effects of area postrema/caudal medial nucleus of the solitary
tract lesions on water and sodium balance. American Journal of Physiology. 246: 173·182,
1984.

3. Miselis, R.R., T.M. Hyde, and R.E. Shapiro. The area postrema and adjacent solitary nucleus
in water and energy balance. Federation Proceedings. 43: 2969-2971,1984.

4. Hyde, T.M., M. Gibbs, and S.J. Peroutka. Distribution of muscarinic cholinergic receptors in
the dorsal vagal complex and other selected nuclei in the human medulla. Brain Research. 447:
287-292, 1988.

5. Hyde, T.M. and S.J. Peroutka. Distribution of cholecystokinin receptors in the dorsal vagal
complex and other selected nuclei in the human medulla. Brajn Research. 495: 198·202, 1989.

6. Hyde, T.M., J.R. Hotson, and J.E. Kleinman. Differential diagnosis of choreiform tardive
dyskinesia. Journal of Neuropsychiatry and Clinical Neurosciences. 3: 255-268,1991.

7. Hyde, T.M., B.A. Aaronson, C. Randolph, K.C. Rickler, and D.R. Weinberger. The relationship
of birthweight to the phE)notypic expression at Tourette's Syndrome in monozygotic twins.
Neurology, 42: 652-657, 1992.

B. Hyde, T.M., J.C. Ziegler, and D.R. Weinberger. Psychiatric disturbances in metachromatic
leukodystrophy: insights into the neurobiology of psychosis. Archives of Neurology. 49: 401·
406, 1992.

9. Egan, M.F., T.M. Hyde, G.W. Albers, A. Elkashef, R. Alexander, A. Reeves, A.O. Blume, and
R.J. Wyatt. Treatment of tardive dyskinesia with vitamin E. American Journal of Psychiatry. 149:
773-777, 1992.

10. Hyde, T.M. and R.R. Miselis. The subnuclear organization of the human caudal nucleus of
the solitary tract. Brain Research Bulletin, 29: 95·1 09, 1992.

11. Egan, M.F., T.M. Hyde, D.L. Tirschwell, J.E. Kleinman, and D.R. Weinberger. Laterality of
appendicular tardive dyskinesia in chronic schizophrenia. Biological Psychiatry, 31: 1098-1109,
1992.

12. Hyde, T.M., L.-C. Wu, I.B. Krasnov, S.K. Sigworth, N.G. Daunton, and F. D'Amello.
Quantitative autoradiographic analysis of muscarinic cholinergic and GABAA (benzodiazepine)
receptors in the forebrain of rats flown on COSMOS 2044. Brain Research. 593: 291-294, 1992.

13. Hyde, T.M., E.K. Fitzcharles,. and D.R. Weinberger. Age-related prognostic factors in the
severity of illness of Tourette's Syndrome in monozygotic tWins. Journal of Neuropsychiatry and
Clinical Neurosciences. 5: 178-182, 1993.

608
14. Randolph, C., T.M. Hyde, J.M. Gold, T.E. Goldberg, and D.R. Weinberger. Tourette's
Syndrome in monozygotic twins: relationship of tic severity to neuropsychological function.
Archives of Neurology. 50: 725· 728, 1993.

15. Goldberg, T.E., T.M. Hyde, J.E. Kleinman, and D.R. Weinberger. The course of
schizophrenia: neuropsychological evidence for a static encephalopathy. Schizophrenia Bulletin.
19: 797-804, 1993.

16. Gupta S., M.F. Egan, and T. M. Hyde. An unusual presentation of tardive dyskinesia with
prominent involvement of the pectoral musculature. Biological Psychiatry. 33: 291·292, 1993.

17. Elkashef, A.M., M.F. Egan, J.A. Frank, T.M. Hyde, B.K. Lewis, and R.J. Wyatt. Basal ganglia
iron content in tardive dyskinesia: an MRI study. Biological Psychiatry. 35: 16-21, 1994.

18. Abi-Dargham, A., M. Laruelle, J. Seibyl, Z. Rattner, A.M. Baldwin, S.S. Zoghbi, Y. Zea-
Ponce, J.D. Bremner, T.M. Hyde, D.S. Charney, P.B. Hoffer, and A.B. Innis. SPECT
measurement of benzodiazepine receptors in human brain with [123]Jomazenil: kinetic and
equilibrium paradigms. Journal of Neurochemistry. 35: 228-238, 1994.

19. Ohuoha, D.C., M.B. Knable, S.S. Wolf, J.E. Kleinman, and T.M. Hyde. S-HT3 receptor
distribution in the human nucleus of the solitary tract and other structures of the caudal medulla:
a quantitative autoradiographic study. Brain Research. 637: 222·226, 1994.

20. Sambunaris, A. and T.M. Hyde. Stroke-related aphasias mistaken for psychotic speech: two
case reports. Journal of Geriatric Psychiatry and Neurology. 7: 144·147, 1994.

21. Hyde, T.M., s. Nawroz, T.E. Goldberg, D. Strong, J.L. Ostrem, D.R. Weinberger, and J.E.
Kleinman. Is there cognitive decline in schizophrenia? A cross-sectional study. Biitish Journal of
Psychiatry. 164: 494-500, 1994.

22. Wolf, S.S., T.M. Hyde, and D.R. Weinberger. Malformations of the septum pellucidum: two
distinctive cases in association with schizophrenia, Journal of Psychiatry and Neuroscience. 19:
140-144, 1994.

23. Hyde, T.M., H.A. Emsellem, C. Randolph, K.C. Rickler, and D.R. Weinberger. EEG
abnormalities in monozygotic twins with Tourette's Syndrome. British Journal of Psychiatry. 164:
811-817,1994.

24. Cantor-Graae, E., T.F. McNeil, K.C. Rickler, K. Sjostrom, R. Rawlings, E.S. Higgins, and
T.M. Hyde. Are neurological abnormalities in Well discordant monozygotic co-twins of
schizophrenic subjects the result of perinatal trauma? American Journal of Psychiatry. 151:
1194-1199,1994.

25. Wolf, S.S., T.M. Hyde, T.W. Moody, R.C. Saunders, D.R. Weinberger, and J.E. Kleinman.
The autoradiographic characterization of 1251-neurotensin binding in human entorhinal cortex.
Brain Research Bulletin. 35: 353-358, 1994.

609
26. Egan, M.F., Y. Hurd, T.M. Hyde, D.R. Weinberger, J.E. Kleinman, and R.J. Wyatt.
Alterations in mRNA levels of D2 receptors and neuropeptides in striatonigral and striatopallidal
neurons of rats with neuroleptic-induced dyskinesias. Synapse. 18: 178-189, 1994.

27. Knable, M.B., T.M. Hyde, M. Tosayali, R.J. Wyatt, J.E. Kleinman, D.R. Weinberger, and M.F.
Egan. Quantitative autoradiography of striatal dopamine D1, D2, and reuptake sites in rats with
vacuous chewing movements. Brain Research. 646: 217-222, 1994.

28. Knable, M.B., T.M. Hyde, M.M. Herman, J.M. Carter, LB. Bigelow, and J.E. Kleinman.
Quantitative autoradiography of dopamine-D1 receptors, D2 receptors and dopamine uptake sites
in post-mortem striatal specimens from schizophrenic patients. Biological Psychiatry. 36: 827-
835, 1994.

29. Hyde, T.M., M.F. Egan, R,J, Brown, D.R. Weinberger, and J.E. Kleinman. Diurnal variation
in tardive dyskinesia. Psychiatry Research. 56: 53-57, 1995.

30. Hyde, T.M. and D.R. Weinberger. Tourette's Syndrome: a model neuropsychiatric
disorder. Journal ofthe American Medical Association. 273: 498-501, 1995,

31. Egan, M.F., T.M. Hyde, J.E. Kleinman, and R.J. Wyatt. Neuroleptic-induced vacuous
chewing movements in rodents: incidence and effects of long-term increases in haloperidol dose.
Psychopharmacology. 117: 74-81, 1995.

32. Hyde, T.M., M.F. Egan, LL Wing, R.J. Wyatt, D.R. Weinberger, and J.E. Kleinman.
Persistent catalepsy associated with severe dyskinesias in rats treated with chronic injections of
haloperidol decanoate. Psychopharmacology. 118: 142-149, 1995.

33. Hyde, T.M,, M.E. Stacey, R. Coppola, S.F. Handel, K.C. Rickler, and D.R. Weinberger.
Structural abnormalities in Tourette's Syndrome: a quantitative MRI study in monozygotic twins.
Neurology. 45: 1176-1182, 1995.

34. Knable, M.B., D.W. Jones; R. Coppola, T.M. Hyde, K.S. Lee, J. Gorey, and D.R.
Weinberger. Lateralized differences in lodine-123-IBZM uptake in the'basal ganglia activity in
asymmetric Parkinson's disease. J. Nuclear Medicine. 36: 1216-1225, 1995,

35. Egan, M.F., J.N. Ferguson, and T.M. Hyde. Effects of chronic naloxone administration on
vacuous chewing movements and catalepsy in rats treated with long-term haloperidol decanoate.
Brain Research Bulletin 38: 355-363, 1995.

36. Wail, S.S., T.M. Hyde, R.C. Saunders, M.M. Herman, D.R. Weinberger, and J.E. Kleinman.
Autoradiographic characterization of neurotensin receptors in the entorhinal cortex of
schizophrenic patients and control subjects. J. Neural Transmission., 102: 55-65, 1995.

37. Murray, A.M., T.M. Hyde, M.B. Knable, M.M. Herman, LB. Bigelow, J.M. Carter, D.R.
Weinberger, and J.E. Kleinman. The distribution of putative D4 dopamine receptors in post-
mortem striatum from patients with schizophrenia. J. Neuroscience. 15: 2186-2191, 1995.

610
38. Lynn, R.B., G.-Y. Gao, R.V. Considine, T.M. Hyde, and J.F. Caro. Autoradiographic
localization of leptin binding in the choroid plexus of ob/ob and db/db mice. Biochemical and
Biophysical Research Communications. 219: 884-889, 1996.

39. Lynn, R.B., T.M. Hyde, R.B. Cooperman, and R.R. Miselis. Distribution of bombesin-like
Immunoreactivity in the nucleus of the solitary tract and dorsal motor nucleus of the rat and
human: colocaliza:tion with tyrosine hydroxylase. J. Comparative Neurology. 369: 552-570,
1996.

40. Considine, R.V., E.L. Considine, C.J. Williams, T.M. Hyde, and J.F. Caro. The hypothalamic
leptin receptor is humans: identification of incidental sequence polymorphlsms and absence of
the db/db mouse and fa/fa rat mutations. Diabetes. 45:992-994, 1996.

41. Hyde, T.M., M.B. Knable, and A.M. Murray. The distribution of dopamine D1- D4 receptor
subtypes in human dorsal vagal complex. Synapse. 24: 224-232, 1996.

42, Wolf, S.S., D.W. Jones, M.B. Knable, J. Gorey, K.S. Lee, T.M. Hyde, R. Coppola, and D.R.
Weinberger. Phenotypic variation in Tourette Syndrome twins correlates with dopamine receptor
imaging in caudate. Science. 273: 1225-1227, 1996.

43. Knable, M.B., T.M. Hyde, A.M. Murray, M.M. Herman, and J.E. Kleinman. A postmortem
study of frontal cortical dopamine D1 receptors in schizophrenics, psychiatric controls, and
normal controls. Biological Psychiatry. 40: 1191-1199, 1996.

44. Egan, M.F., J,N. Ferguson, and T.M. Hyde. Effects of rating parameters on assessment of
neuroleptic-induced vacuous chewing movements. Pharmacology, Biochemistry, and Behavior.
53: 401-410, 1996.

45. Egan, M.F., Y. Hurd, J.N. Ferguson, S.E. Bachus, E.H. Hamid, and T.M. Hyde.
Pharmacological and neurochemical differences between acute and tardive vacuous chewing
movements induced by haloperidol. Psychopharmacology. 127: 337-345, 1996.

46. Bachus, S.E., T.M. Hyde, M.M. Herman, M.F. Egan, and J.E. Kleinman. Abnormal
cholecystokinin mRNA levels in entorhinal cortex of schizophrenics. J. Psychiatric Research. 31:
233-256, 1997.

47 . Hyde, T.M. and D.R. Weinberger. Seizures and schizophrenia. Schizophrenia Bulletin. 23:
611-622, 1997.

48. Hurd, Y.L., M.M. Herman, T.M. Hyde, L.B. Bigelow, D.R. Weinberger; and J.E. Kleinman.
Prodynorphin mANA expression is increased in the patch versus matrix compartment of the
caudate nucleus in suicide subjects. Molecular Psychiatry. 2: 495-500, 1997.

49. Shimon, H., G. Agam, R.H. Belmaker, T,M. Hyde, and J.E. Kleinman. Reduced frontal cortex
inositol levels in postmortem brain of suicide victims and patients with bipolar disorder. American
J. Psychiatry. 154: 1148-1150, 1997.

50. Krimer, L.S., T.M. Hyde, M.M. Herman, and R.C. Saunders. The entorhinal cortex: an
examination of cyto- and myelo-architectonic organization in humans. Cerebral Cortex. 7: 722-
731, 1997.

611
51. Krimer, L.S., M.M. Herman, R.C. Saunders, J.C. Boyd, T.M. Hyde, J.M. Carter, J.E.
Kleinman, and D.R. Weinberger. A qualitative and quantitative analysis of the entorhinal cortex in
schizophrenia. Cerebral Cortex. 7: 732-739, 1997.

52. Noga, J.T., T.M. Hyde, M.M. Herman , C.F. Spurney, L.B. Bigelow, D.R. Weinberger, and
J.E. Kleinman. Glutamate receptors in the post-mortem striatum of schizophrenia, suicide, and
control brains. Synapse. 27: 168-176, 1997.

53. Moore, K.A., G.W. Kunsman, B.S. Levine, M.M. Herman, J. Cervenak, and T.M. Hyde. A
comparison of ethanol concentrations in the occipital lobe and cerebellum. Forensic Science
International. 86: 127-134, 1997.

54. Vawter, M.P., H.E. Cannon-Spoor, J.J. Hemperly, T.M. Hyde, D.M. VanderPutten, J.E.
Kleinman, and W.J. Freed. Abnormal expression of cell recognition molecules in schizophrenia.
Experimental Neurology.149: 424-432, 1998.

55. Baca, S.M., B.K. Lipska, M.F. Egan, S.E. Bachus, J.N. Ferguson, and T.M. Hyde. Effects of
prefrontal cortical lesions on neuropeptide and dopamine receptor gene expression in the
striatum-accumbens complex. Brain Research. 797: 55-64, 1998.

56. Mulberg, A. E., R.T. Weyler, S.M. Altschuler, and T.M. Hyde. Cystic fibrosis transmembrane
conductance regulator expression in human hypothalamus. NeuroReport. 9: 141-144, 1998.

57. Heinz, A., M.B. Knable, S.S. Wolf, D.W. Jones, J.G. Gorey, T.M. Hyde, and D.R.
Weinberger. Tourette's Syndrome: [l-123jbeta-CIT SPECT correlates of vocal tic severity.
Neurology. 51: 1069-1074,1998.

58. Hamid, E.H., T.M. Hyde, S.M. Baca, and M.F. Egan. Failure to down regulate NMDA
receptors in the striatum and nucleus accumbens associated with neuroleptic-induced dyskinesia.
Brain Research. 796: 291-295, 1998.

59. Vawter, M.P., J.J. Hemperly, T.M. Hyde, S.E. Bachus, D.M. VanderPutten, A.L. Howard, H.E.
Cannon-Spoor, M.T. McCoy, M.J. Webster, J.E. Kleinman, and W.J. Freed. VASE-containing N-
CAM isoforms are increased in the hippocampus in bipolar disorder but not schizophrenia.
Experimental Neurology. 154: H 1, 1998.

60. McNamara, R.K., T.M. Hyde, J.E. Kleinman, and R.H. Lenox. Expression of myristoylated
alanine-rich C kinase substrate (MARCKS) and MARCKS-related protein (MAP) in the prefrontal
cortex and hippocampus of suicide victims. J. Clinical Psychiatrv. Supplement 2: 21-6, 1999.

61. Vawter, M.P., A.L. Howard, T.M. Hyde, J.E. Kleinman, and W.J. Freed. Alterations of
hippocampal secreted N-CAM in bipolar disorder and synaptophysin in schizophrenia. Molecular
Psychiatry. 4: 467-475, 1999.

62. Spurney, C.F., S.M. Baca, A.M. Murray, G.E. Jaskiw, J.E. Kleinman, and T.M. Hyde.
Differential effects of haloperidol and clozapine on ionotropic glutamate receptors in rats.
Synapse. 34: 266-276, 1999.

63. Holt, D.J., M.M. Herman, T.M. Hyde, J.E. Kleinman, C.M. Sinton, D.C. German, L.B. Hersh,
A.M. Graybiel, and G.B. Saper. Evidence for a deficit in cholinergic interneurons in the striatum in
schizophrenia. Neuroscience. 94: 21-31, 1999.

612
 64. Shannon Weickert, C.,M.J. Webster, S.M. Colvin, M.M. Herman, T.M. Hyde, D.R.
Weinberger, and J.E. Kleinman. Localization of epidermal growth factor receptors and putative
neuroblasts in human subependymal zone. Journal of Comparative Neurology. 423: 359-372,
2000.

65.. Bower, C.M., T.M. Hyde, M. Zaka, E.H. Hamid, S.M. Baca, and M.F. Egan. Decreased mu-
opioid receptor binding In the globus pallidus of rats treated with chronic haloperidol.
Psychopharmacology. 150: 260-263, 2000.

66. Meredith, GE, I.E.. De Souza, T.M. Hyde, G. Tipper, M.L Wong, and M.F. Egan. Persistent
alterations in dendrites, spines, and dynorphinergic synapses in the nucleus accumbens sheil of
rats with neuroleptic-induced dyskinesias. Journal of Neuroscience. 20: 7798-7806, 2000.

67. Weickert, C.S., M.J. Webster, T.M. Hyde, M.M. Herman, S.E. Bachus, G. Bali, D.R.
Weinberger, and J.E. Kleinman. Reduced expression of GAP-43 mRNA in dorsolateral prefrontal
cortex of schizophrenics. Cerebral Cortex. 11: 136-147, 2001.

68. Webster, M.J., C.S. Weickert, M.M. Herman, T.M. Hyde, and J.E. Kleinman. Synaptophysin
and GAP-43 mRNA levels ih the hippocampus of subjects with schizophrenia. Schizophrenia
Research. 49: 89-98, 2001.

69. Winterer, G., M.F. Egan, T. Radler, T. Hyde, R. Coppola, and D.R. Weinberger. An
association between reduced interhemispheric EEG coherence in the temporal lobe and genetic
risk for schizophrenia. Schizophrenia Research. 49: 129-143, 2001.

70. Egan, M.F., T.E. Goldberg, T. Gscheidle, M. Weirich, R. Rawlings, T.M. Hyde, LB. Bigelow,
and D.R. Weinberger. Relative risk for cognitive impairments in siblings of patients with
schizophrenia. Biological Psychiatry. 50: 98-107, 2001.

71. Noga, J.T., T.M. Hyde, S.E. Bachus, M.M. Herman, and J.E. Kleinman. AMPA receptor
binding in the dorsolateral prefrontal cortex of schizophrenics and controls. Schizophrenia
Research. 48: :361-363, 2001.

72. Crook, J.M., M. Akil, B.C.W. Law, T.M. Hyde, and J.E. Kleinm.an. Comparative analysis of
group II metabotropic glutamate receptor immunoreactivity in the dorsolateral prefrontal cortex of
patients with schizophrenia and normal subjects. Molecular Psychiatry. 7: 157-164, 2002.

73. Egan, M.F., T.M. Hyde, J.B. Bonomo, V.S. Mattay, LB. Bigelow, T.E. Goldberg, and D.R.
Weinberger. Relative risk of neurological signs in siblings of patients with schizophrenia~
American Journal of Psychiatry. 158: 1827-1834, 2002.

74. Vawter, M.P., L Thatcher, N. Usen, T.M. Hyde, J.E. Kleinman, and W.J. Freed. Reduction of
synpasln in the hippocampus of patients with bipolar disorder and schizophrenia. Molecular
Psychiatrv. 7: 571-578, 2002.

· 75. Mattay, V.A., A. Tessitore, J.H. Callicott, A. Bertolino, T.E. Goldberg, T.N. Chase, T.M. Hyde,
and D.R. Weinberger. Dopaminergic modulation of cortical function in patients with Parkinson's
disease. Annals of Neurology 51: 156-164,2002.

76. Hamid, E.H., T. M. Hyde, S.E. Bachus, M.F. Egan, B. Kinkead, G.B. Nemeroff, and J.E.
Kleinman. Neurotensin receptor abnorrnaiities in the mesial temporal lobe In schizophrenia.
Biological Psychiatrv15: 795-800, 2002.

613
77. Tessitore, A.. R. Hariri, F. Fera, W.G. Smith, T. N. Chase , T. M. Hyde, D. R. Weinberger and
V. S. Mattay. Dopamine modulates the response of the human amygdala: A study in Parkinson's
disease. Journal of Neuroscience. 22: 9099·91 03, 2002.

78. Vawter, M.P., J.M. Crook, T.M. Hyde, J.E. Kleinman, D.R. Weinberger, K.G. Becker, and W.J,
Freed. Microarray analysis of gene expression in the prefrontal cortex in schizophrenia.
Schizophrenia Research. Schizophrenia Research. 58: 11, 2002.

79. Weickert, T. W., A. Terrazas, LB. Bigelow, J.D. Malley, T. Hyde, M.F. Egan, D.R. Weinberger,
and T.E. Goldberg. Habit and skill learning in schizophrenia: evidence of normal striatal
processing with abnormal cortical input. Learning and Memorv. 9:430-42, 2002.

80. Matsumoto, M., C.Shannon Weickert, M. Akil, T.M. Hyde, M.M. Herman, J.E. Kleinman, and
D.R. Weinberger. Catechol-0-methyltransferase (COMT) mRNA expression in human and rat
brain: evidence for a role in cortical neuronal function. Neuroscience. 116: 127-137,2003.

81. Lerhmann, E., J. Oyler, M.P. Vawter, T.M. Hyde, B. Kolachana, J.E. Kleinman, M.A. Huestis,
K.G. Becker, and W.J. Freed. Transcription profiling in the human prefrontal cortex: evidence for
two activational states associated with cocaine abuse. Pharmacogenomics Journal. 3: 27-40,
2003.

82. Akil, M., B.S. Kolachana, D.A. Rothmond, T.M. Hyde, D.R. Weinberger, and J.E. Kleinman.
Catechol-o-methyltransferase genotype and dopamine regulation in the human brain. Journal of
Neuroscience. 15: 2008-2013, 2003.

83, Halim, N.D., C.S. Weickert, B.W. McClintock, T.M. Hyde, D.R. Weinberger, J.E. Kleinman,
and B.K. Lipska. Presynaptic proteins in the prefrontal cortex of patients with schizophrenia and
rats with abnormal prefrontal development. Molecular Psychiatry, 8:797-810,2003.

84. Matsumoto, M., C.Shannon Weickert, S. Beltaifa, B. Kolachana, J. Chen, T.M. Hyde, M.M.
Herman, D.R. Weinberger, and J.E. Kleinman. Catechol-0-methyltransferase (COMT) mRNA
expression in the dorsolateral prefrontal cortex of patients with schizophrenia.
Neuropsychopharmacology. 28: 1521·1530, 2003.

85. Welckert, C.S., T.M. Hyde, B.K. Lipska, M.M. Herman, D.R. Weinberger, and J.E. Kleinman.
Reduced brain-derived neurotrophic factor in prefrontal cortex of patients with schizophrenia.
Molecular Psychiatry. 8: 592-610, 2003.

86. Vawter, M.P., C. Shannon-Weickert, E. Ferran, M. Matsumoto, K. Overman, T.M. Hyde,

D.R. Weinberger, W.E.Bunney, and J.E. Kleinman. Gene expression of metabolic enzymes and
a protease inhibitor in the prefrontal cortex are decreased in schizophrenia. Neurochemical
Research. 29: 1245-1255,2004.

87. Ghose, S., C. Shannon Weickert, S.M. Colvin, M.D, J. T. Coyle, M. M. Herman, T. M. Hyde,
and J. E. Kleinman. Glutamate Carboxypeptidase II gene expression in the human frontal and
temporal lobe in schizophrenia. Neuropsychopharmacology. 29: 117-125,2004.

88. Hashimoto, R., R.E. Straub, C.S. Weickert, T.M. Hyde, J.E. Kleinman, and D.R. Weinberger.
Expression analysis of neuregulin-1 in the dorsolateral prefrontal cortex in schizophrenia.
Molecular Psychiatry. 9:299-307, 2004.

614
89. Shannon Weickert, C., R.E. Straub, M. Matsumoto, B.W. McClintock, T.M. Hyde, M.M.
Herman, D.R. Weinberger, and J.E. Kleinman. Human dysbindin (DTNBP1) gene expression;
anatomical distribution in normal brain and altered expression in sChizophrenic prefrontal cortex
Archives of General PsychiatrY. 61: 544·555, 2004.

90. Law, A.J., C. Shannon Weickert, T.M.Hyde, J.E. Kleinman, and P.J. Harrison. Neuregulin-1
(NRG-1) mANA and protein in the adult human brain. Neuroscience. 127: 125-136,2004.

91. Zhu, G., R.H. Lipsky, K. Xu, S. Ali, T. Hyde, J. Kleinman, L.A. Akhtar, D.C. Mash, and D.
Goldman. Differential expression of human COMT alleles in brain and lymphoblasts detected by
AT-coupled 5' nuclease assay. Psychopharmacology. 177:178-184,2004.

92. Egan, M.F., R.E. Straub, T.E. Goldberg, I. Yakub, J.H. Callicott, A.A. Hatiri, V.S. Mattay, A.
Bertolino, T.M. Hyde, C. Shannon-Weickert, M.Akil, J. Crook, R.K. Vakkalanka, R. Balkissoon,
A.A. Gibbs, J.E. Kleinman, and D.R. Weinberger. Variation in GRM3 affects cognition, prefrontal
glutamate, and risk for schizophrenia. Proceedings of the National Academy of Sciences. 101:
12604-12609, 2004.

93. Law, A.J., C. Shannon Weickert, T.M. Hyde, J. E. Kleinman, and P. J. Harrison. Reduced
spinophilin but not MAP-2 expression in the hippocampal formation in schizophrenia and mood
disorders: evidence for a pathology of dendritic spines. American Journal of Psychiatrv. 161:
1848-1855, 2004.

94. Chen, J., B.K. Lipska, N. Halim, Q.D. Ma, M. Matsumoto, S. Melham, B.S .. Kolachana, T.M.
Hyde, M.M. Herman, J. Apud, M.F. Egan, J.E. Kleinman, D.R. Weinberger. Functional analysis
of genetic variation in catechol-0-methyltransferase (COMT): effects on mANA, protein, and
enzyme activity in postmortem human brain. American Journal of Human Genetics. 75: 807-821,
2004.

95. Weickert, C.S. D.A. Kittell, R.C. Saunders, M.M. Herman, A.A. Horlick, J.E. Kleinman, and
T.M. Hyde. Basic fibroblast growth factor and fibroblast growth factor receptor-1 in the human
hippocampal formation. Neuroscience. 131: 219-233, 2005.

96. Deep-Soboslay, A., M.Akil, C.E. Martin, L.B. Bigelow, M.M. Herman, T.M. Hyde, and J.E.
Kleinman. Reliability of psychiatric diagnosis in postmortem research. Biological Psychiatry. 57:
96-101,2005.

97. Holt, D.J., S.E. Bachus, T. M. Hyde, M. Witttie, M.M. Herman, M. Vangeil, G.B. Saper, and
J.E. Kleinman. Reduced density of cholinergic interneurons in the ventral striatum in
schizophrenia; an in situ hybridization study. Biological Psychiatry. 58: 408-416,2005.

98. Matsumoto, M., S. Beltaifa, c. S. Weickert, M.M. Herman, T.M. Hyde, R.C. Saunders,
B.K.Lipska, D.R. Weinberger, and J.E. Kleinman. A conserved mANA expression profile of
SREB2 (GPR85) in the adult human, monkey, and rat forebrain. Brain Research: Molecular Brain
Research. 138:58-69,2005.

9.9. Weickert, C.S., D.L. Ligons, T. Romanczyk, G. Ungaro, T.M. Hyde, M.M. Herman, D.R.
Weinberger, J.E. Kleinman. Reductions in neurotrophin receptor mRNM in the prefrontal cortex
of patients with schizophrenia. Molecular Psychiatry. 10: 637-650, 2005.

100. Perlman WR, Matsumoto M, Beltaifa S, Hyde TM, Saunders RC, Webster MJ, Rubinow DR,
Kleinman JE, Weickert CS. Expression of estrogen receptor alpha exon-deleted mANA variants
in the human and non-human primate frontal cortex. Neuroscience. 134:81-95,2005.

615
101. Lowe, R.H., A.J. Barnes, E. Lehrmann, W.J. Freed, J.E. Kleinman, T.M. Hyde, and M.A.
Huestis. A validated positive chemical ionization GC(MS method for the identification and
quantification of amphetamine, opiates, cocaine, and metabolites in human postmortem brain.
Journal of Mass Spectrometrv. 41:175-184,2006.

102. Lipska , B.K., T. Peters, T. M. Hyde, N. Halim, C. Horowitt, S. Mitkus, C.S. Weickert, M.
Matsumoto, A. Sawa, R. Straub, R. Vakkalanka, M. M. Herman, D. R. Weinberger , and J. E.
Kleinman. Expression of DISC1 binding partners Is reduced in schizophrenia and associated
with DISC1 SNPs. Human Molecular Genetics. 15: 1245-1258, 2006.

103. Law, A.J., B.K. Lipska, C.S. Weickert, T.M. Hyde, R.E. Straub, R. Hashimoto, P.J. Harrison,
J.E. Kleinman, and D.R. Weinberger. Neuregulin 1 transcripts are differentially expressed in
schizophrenia and regulated by 5' SNPs associated with the disease. Proceedings of the
National Academy of Sciences. 103: 6747-6752, 2006.

104. Lauria!, T.L., S. Dracheva, J. Kremerskothen, K. Duning, V. Haroutunian, J.D. Buxbaum,

T.M. Hyde, J.E. Kleinman, L. Alison Mcinnes. Characterization of KIAA0513, a novel signaling
molecule that interacts with modulators of neuroplasticity, apoptosis, and the cytoskeleton. Brain
Research. 1121: 1-11,2006.

105. Lipska, B.K., A. Deep-Soboslay, C.S. Weickert, T.M. Hyde, C.E. Martin, M.M. Herman, J.E.
Kleinman. Critical factors in gene expression in postmortem human brain: focus on studies in
schizophrenia. Biological Psychiatrv. 60: 650·658, 2006.

106. Lipska, B.K., S. Mitkus, M. Caruso, T.M. Hyde, J. Chen, R. Vakkalanka, R.E. Straub, D.R.
Weinberger, J.E, Kleinman. RGS4 mANA expression in postmortem human cortex is associated
with COMT Vai158Met genotype and COMT enzyme activity. Human Molecular Genetics. 15:
2804-2812, 2006.

107. Lehrmann, E., Colantuoni, C., Deep"Soboslay, A., Becker, K.G., Lowe, R. Huestis, M.A.
Hyde, T.M., Kleinman, J.E., Freed, W.J. Transcriptional changes common to human cocaine,
cannabis and phencyclidine abuse. PLoS ONE, 1(1): e114.doi:10.1371~ournal.pone.0000114,
2006.

108. Hyde, T.M., Goldberg, T.E., Egan, M.F., Lener, M., Weinberger, D.R. The relationship of
frontal release signs and cognition in schizophrenics, their siblings, and normal controls. British
Journal of Psychiatry. 191:120-125, 2007.

109. Mathew, S.V., Law, A.J., Lipska, B.K., Davila-Gracia, M.R., Zamora, E.D., Mitkus, S,N.,
Vakkalanka; R., Straub, R.E., Weinberger, D.R., Kleinman, J.E., Hyde, T.M. a? nicotinic
acetylcholine receptor mANA e~pression and binding in postmortem human brain are associated
with genetic variation in Neuregulin 1. Human Molecular Genetics. 16: 2921-2932, 2007.

110. Halirn, N.D., Lipska, B.K., Hyde, T.M., Deep-Soboslay, A., Saylor, E.M., Herman, M.M.,
Thakar, J.., Verma, A., Kleinman, J.E. Increased lactate levels and reduced pH in postmortem
brains of schizophrenics: medication confounds. Journal of Neuroscience Methods. 169:208-213,
2008.

111. Mitkus, S.N., Hyde, T.M., Vakkalanka, R., Kolachana, B., Weinberger, D.R., Kleinman, J.E.,
Upska, B.K. Expression of oligodendrocyte-associated genes in dorsolateral prefrontal cortex of
patients with schizophrenia. Schizophrenia Research. 98: 129-138,2008.

616
112. Weickert, C.S., Rothmond, D.A., Hyde, T.M., Kleinman, J.E., Straub, R.E. Reduced
DTNBP1 (dysbindin-1) mRNA in the hippocampal formation of schizophrenia patients.
Schizophrenia Research. 98: 105-110, 2008.

113. Lehrmann, E., Afanador, Z.R., Deep-Soboslay, A., Gallegos, G., Darwin, W.O., Lowe, R.H.,
Barnes, A.J., Huestis, M.A., Cadet, J.L, Herman, M.M., Hyde, T.M., Kleinman, J.E., Freed, W.J.
Postmortem diagnosis and toxicological validation of illicit substance abuse. Addiction Biology.
13:105-117,2008.

114. Deep-Soboslay, A., Iglesias, J., Hyde, T.M., Bigelow, LB., lmamovic, V., Herman, M.M.,
Kleinman, J.E. Evaluation of tissue collection for postmortem studies of bipolar disorder. Bipolar
Disorders. 1O: 822-828, 2008.

115. Colantuoni, C., Hyde, T.M., Mitkus, S., Joseph, A, Sartorius, L, Aguirre' C., Creswell, J.,
Johnson, E., Deep-Sobolsay, A., Herman, M.M., Lipska, B.K., Weinberger, D.R., and Kleinman,
J.E. Age-Related Changes in the Expression of Schizophrenia Susceptibility Genes in the Human
Prefrontal Cortex. Brain Structure and Function. 213:255-271,2008.

116. Agarwal V., Konimaddi R., Valli K, Ryder D., Hyde T.M., Kleinman J.E., Strobel H., and
Ravindranath V. Drug metabolism in human brain: high levels of cytochrome P4503A43 in brain
and metabolism of anti-anxiety drug alprazolam to its active metabolite. PLoS ONE 3: e2337,
2008.

117. Hyde, T.M., Deep-Soboslay, A., Iglesias, B., Callicott, J.H., Gold, J.M., Meyer-Lindenburgh,
A., Honea, R.A., Bigelow, LB., Egan, M.F., Emsellem, E.M., and Weinberger, D.R. Enuresis as a
premorbid developmental marker of schizophrenia. Brain. 131: 2489-2498, 2008.

118. Ghose, S., Crook, J.M., Bartus, C.L, Sherman, T.G., Herman, M.M., Hyde, T.M., Kleinman,
J.E., and Akil, M. Metabotropic glutamate receptor 2 and 3 gene expression in the human
prefrontal cortex and mesencephalon in schizophrenia. International Journal of Neuroscience.
118: 1609-1627, 2008.

119. Sartorius, LJ., Weinberger, D.R., Hyde, T.M., Harrison, P.J., Kleinman, J.E., and Lipska,
B.K. Expression of a GRM3 splice variant is increq.sed in the dorsolateral prefrontal cortex of
individuals carrying a schizophrenia risk SNP. Neuropsychopharmacology. 33: 2626-2634,
2008.

120. Buerlein, R.C., Hyde, T.M., Lipska, B.K., Robinson Jr., W.E., Khosla, A., and Kleinman, J.E.
A comparison of human brain dissection by drill versus saw on nucleic acid quality. Journal of
Neuroscience Methods. 179: 68-70, 2009.

121. Huffaker, S.J., Chen, J., Sambataro, F., Nicodemus, K.K., Yang, F., Mattay, V,, Lipska, B.K.,
Hyde, T.M., Song, J., Rujescu, D., Giegling, 1., Chang, J. Egan, M.F., Goldberg, T.E., Kleinman,
J.E., Lu, B., and Weinberger, D.R. A hovel, primate specific brain isoform of KCNH2: role in
cognition, hippocampal biology and association Wiih schizophrenia. Nature Medicine15: 509-518,
2009.

122. Nakata, K., Lipska, B.K., Hyde, T.M., Ye, T., Newburn, E.N., Morita, Y., Vakkalanka, R.,
Barenboim, M., Sei, Y., Weinberger, D.R., and Kleinman, J.E. DISCi variants are upregulated in
schizophrenia and associated with risk polymorphisms. Proceedings of the National Academy of
Sciences. 106: 15873-15878, 2009.

617
123. Bristow, G.C., Lane, T.A., Walker, M., Chen, L., Sei, Y., Hyde, T.M., Kleinman, J.E.,
Harrison, P.J., and Eastwood, S.L. Expression of Kinase Interacting with Siathmin (KIS, UHMK1)
in human brain and lymphoblasts: ettects of schizophrenia and genotype. Brain Research. 1301:
197-206, 2009.

124. Thakker-Varia, S., Jean, Y.Y., Parikh, P., Sizer, C.F., Ayer, J.J., Parikh, A, Hyde, T.M ..•
Buyske, S., and Alder, J. The neurpeptlde VGF is reduced in human bipolar postmortem brain
and contributes to some of the behavioral and molecular ellects of lithium. Journal of
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125. Eastwood, S.L., Walker, M., Hyde, T.M., Kleinman, J.E., and Harrison, P.J. The DISC1
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126. Deep-Soboslay, A., Hyde, T.M., Callicott, J.P., Lener, M.S., Verchinski, B.A., Apud, J.A.,
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127. Lemaitre, H, Mattay, V.S., Sambataro, F., Verchinski, B., Straub, R.E., Callicott, J.H.,
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128. Bigos, K.L., V.S. Mattay, J.H. Callicott, R.E. Straub, R. Vakkalanka, B. Kolachana, T.M.
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129. Kao, W.T., Y. Wang, J.E. Kleinman, B.K. Lipska, T.M. Hyde, D.R. Weinberger, and A.J.
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130. Wong, J., T.M. Hyde, H.L. Cassano, A. Deep-Soboslay, J.E. Kleinman, and C.S. Weickert.
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131. Hellsten, K.S., S.T. Sinkkonen, T.M. Hyde, J.E. Kleinman, T. Sarkioja, A. Maksimow, M.
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132. Cenjero-Goldberg, C., T.M. Hyde, S. Chen, U. Dreses-Werringloer, M.M. Herrnan, J.E.
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133. Zhang, F. 0. Chen, T. Ye, B.K. Lipska, R.E. Straub, R. Vakkalanka, R. Rujescu, D. St. Clair,
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134. Hyde, T.M., B.K. Lipska, T. Ali, S.V. Mathew, A.J. Law, O.E. Meiitiri, R.E. Straub, T. Ye, C.
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135. Kang, H.J. , Y.l. Kawasawa, F. Cheng, Y. Zhu, X. Xu, M. Li, A.M.M. Sousa, M. Pletikos, K.A.
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136. Colantuoni, C., B.K. Lipska• T. Ye·, T.M. Hyde· R. Tao, J.T. Leek' E.A. Colantuoni, A.G.
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137. Newburn, E.N., T.M. Hyde, T. Ye, Y. Morita, D.R. Weinberger, and B.K. Lipska. Interactions
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138. Numata, S., T. Ye, T.M. Hyde, X. Guitart-Navarro, R. Tao, M. Wininger, C. Colantuoni, D.R.
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139. Zeng, H., Shen, E.H., Hohmann, J.G., Oh, S.W., Bernard, A., Royall, J.J., Glattfelder, K.J.,
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140. Tao R., C. Li, E.N. Newburn, T. Ye, B.K. Lipska, M.M. Herman, D.R. Weinberger, J.E.
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141. Law, A.J., W. Yanhong, Y. Sei, P. 0' Donnell, P. Piantadosi , F. Papaleo, R.E. Straub, W.
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142. Bliss, L.A., Sams, M.R., Deep-Soboslay, A., Ran-Patterson, R., Jaffe, A..• Chenoweth, J.G.,
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143. Jenko, K.J., Hirvonen, J., Henter, J.D., Anderson, K.B., Zoghbi, S.S., Hyde, T.M., Deep-
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144. Ye, T., Lipska, B.K., Tao, R., Hyde, T.M., Wang, L., Li, C., Choi, K.H., Straub; R.E.,
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145. Guillozet-Bongaarts, A.L., Hyde, T.M., Dalley, R.A., Hawrylycz, M.J., Henry, A., Hot, P.R.,

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146. Kunii, Y., Hyde, T.M., Li, C., Kolachana, B., Dickinson, D., Weinberger, D.R., Kleinman,
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148. Conejero-Goldberg , C., Gomar, J., Bobes-Bascaran, T., Hyde, T.M., Kleinman, J.E.,
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150. Dickinson, D., Straub, R.E., Trampush, J.W., Gao, Y., Feng, N., Xle, B., Shin, J., Lim, H.K.,
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151. Punzi, G., Ursini, G., Shin, J.H., Kleinman, J.E. Hyde, T.M., and Weinberger, D.R.
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152. Yoon, K.J., Nguyen, H.N., Ursini, G., Zhang, F., Kim, N.S., Wen, Z., Makri, G., Nauen, D.,
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153. Birnbaum R., Jaffe, A.E., Hyde, T.M., Kleinman, J.E., and Weinberger, D.R. Prenatal
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154. Tao, R., Cousijn, H., Jaffe, A., Burnet, P., Edwards, F., Eastwood, S.L., Shin, J.H., Lane, T.,
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157. Jaffe A.E., Shin J., Collado-Torres L., Leek J.T., Tao R., Li C., Gao Y., Jian Y., Maher BJ.,
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158. Ohl, K., Ursini, G., Ll, M., Shin, J.H., Ye, T., Kleinman, J.E., Hyde, T.M., Hashimoto, R., and
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159. Jenkins, A., Paterson, C., Wang, Y., Hyde, T.M., Kleinman, J.E., and Law, A.J. Neurexln 1
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161. Kunli, Y., Zhang, W., Xu, Q., Hype, T.M., McFadden, W., Shin, J.H., Deep-Soboslay, A., Ye,
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163. Mou, Z., Hyde, T.M., Llpska, B.K., Martinowich, K., Wei, P., Ong, C.-J., Hunter, L.A.,
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164. Hyde, T.M. and 2adwaj, A.A. Editorial: Molecular mechanisms and timing of cortical
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165. Pletnikova, 0., Rudow, G.L., Hyde, T.M., Kleinman, J.E., Ali, S.Z., Bharadwaj, R.,
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166. Brudek, T., Winge, K., Rasmussen, N.B., Bah!, j,M.C., Tanassi, J., Agander, T.K., Hyde,
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171. Ruble, C.L., Smith, R.M., Calley, J., Munsie, L., Airey, D.C., Gao, Y., Shin, J.H., Hyde, T.M.,
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172. Rannals, M.D., Hamersky, G.RT., Page, S.C., Campbell, M.N., Briley, A., Gallo, R.A., Phan,
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174. Davis, K.N., Tao, R., Li, C., Gao, Y., Gondre-Lewis, M.C., Lipska, B.K., Shin, J.H., Xie, B.,
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175. Clark, S., Pocivavsek, A., Nicholson, J., Notarangelo, F., Langenberg, P., McMahon, R.,
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176. Olesen, R.H., Hyde, T.M., Kleinman, J.E., Smidt, K., Rungby, J. and Larsen, A. Obesity and
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179. Garcia-sea, A., Walker, M.A., Hyde, T.M., Kleinman, J.E., Harrison, P.J., and Lane, T.A.
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181. Paterson, C., Wang, Y., Hyde, T.M., Weinberger, D.R., Kleinman, J.E., and Law A.J.
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184. Hwang, T., Park, C.-K., Leung, A.KL, Gao, Y., Hyde, T.M., Kleinman, J.E., Rajpurohit, A.,
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185. Jo, J., Xiao, Y., Sun, A.X., Cukuroglu, E., Tran, H.-D., Goke, J., Tan, Z.Y., Saw, T.Y., Tan,
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T.Z., Pangalos, M.N., Brandon, N.J., Dunlop, J., Moss, S.J. Deficits in the activity of presynaptic
y-Aminobutyric acid type B receptors contribute to altered neuronal excitability in Fragile X
Syndrome. Journal of Biological Chemistry. Epub: pii: jbc.M116.772541. doi:
10.1074/jbc.M116.772541, 2017.

188. Olesen, R., Lauridsen, J., Larsen, A., Vendelbo, J., Hyde, T., Kleinman, J., Bibby, B., Brock,
B., and Rungby, J. High BMI levels associate with reduced mANA expression of IL1 0 and
increased mANA expression of iNOS (NOS2) in human frontal cortex. Translational Psychiatry.
In press, 2017.

189. Birnbaum, R., Jaffe, A. E., Chen, Q., Shin, J.H., BrainSeq Consortium, Kleinman, J.E., Hyde,
T.M., and Weinberger, D.R. Investigating the neuro-immunogenic architecture of schizophrenia.
Molecular Psychiatry. In press, 2017.

190. Wright, C., Shin, J.H., Rajpurohit, A., Deep-Soboslay, A., Collado-Torres, L., Brandon, N.J.,
Hyde, T.M., Kleinman, J.E., Jaffe, A.E., Cross, A., and Weinberger, D.R. Altered expression of
histamine signaling genes in Autism Spectrum Disorder. Translational Psychiatry. In press,
2017.

191. Rutten, B.P.F., Vertnetten, E., Vinkers, C.H., Ursini, G., Daskalakis, N.P., Pishva, E., de
Nijs, L., Houtepen, L.C., Eijssen, L., Jaffe, A.E., Kanis, G., Viechtbauer, W., van den Hove, D.,
Schraut, K.G., Lesch, K.-P., Kleinman, J.E., Hyde, T.M., Weinberger, D.Fl., Schalkwyk, L.,
Lunnon, K., Mill, J., Cohen, H,, Yehuda, R., Baker, D.G., Maihofer, A.X., Nievergelt, C.M., Gauze,
E. and Baks, M.P.M. Longitudinal analyses of the DNA methylome in deployed military
servicemen identify susceptibility loci for Post-Traumatic Stress Disorder. Molecular Psychiatry.
In press, 2017.

192. Mighdoll, M.l., Deep-Soboslay, A., Bharadwa), R., Cotoia, J.A., Benedek, D.M., Hyde, T.M.,
and Kleinman, J.E. Implementation and clinical characteristics of a Post-Traumatic Stress
Disorder brain collection. Journal of Neuroscience Research. In press, 2017.

193. Norgren, N,, Kang, J., Lam, M., li, Z., Chen, J., Jaffe, A.E., Foo, J.N., Hyde, T.M., Kleinman,
J.E., Shin, J.H., Tai, E.S., Weinberger, D.R., Shi, Y., Lee, J., and Liu, J. Targeted resequencing
analysis of genes within GWAS associated loci identifies MPHOSPH9 as implicated in
schizophrenia. Under review, 2017.

194. Jaffe, A.E., Tao, R., Norris, A.L., Kealhofer, M., Nellore, A., Shin, J.H., Kim, D., Jla, Y.,
Hyde, T.M., Kleinman, J.E., Straub, R.E., Leek, J.T., and Weinberger, D.R. A framework for RNA
quality correction in differential expression analysis. Under review, 2017.

624
INVITED CHAPTERS, LETTERS, EDITORIALS, AND REVIEWS:

1. Hyde, T.M., R. Eng, and R.R. Miselis. Brainstem mechanisms In hypothalamic and dietary
obesity. In: Neural Basis of Feeding and Reward., Edited by B.G. Hoebel and D. Navin., Haer
Institute, 97-114, 1982.

2. Miselis, R.R., T.M. Hyde, and R.E. Shapiro. Disturbances in water balance controls following
lesions to the area postrema and adjacent solitary nucleus. In: The Physiology of Thirst and
Sodium Appetite., Edited by G. de Caro, A.N. Epstein, and M. Massi, Plenum Press, N.Y., pp.
279-285, 1986.

3. Miselis, R.R., R.E. Shapiro, and T.M. Hyde. The area postrema. In: Circumventricular
Organs and Body Fluids., Edited by P.M. Gross, CRC Press, N.Y., Vol. II, Chap. 8, pp. 185-208,
1987.

4. Hyde, T.M. and D.R. Weinberger. The brain in schizophrenia. In: Seminars in Neurology. 10:
276-286, 1990.

5. Hyde, T.M., M.F. Casanova, J.E. Kleinman, and D.R. Weinberger. Neuroanatomical and
neurochemical pathology in schizophrenia. In: Annual Review of Schizophrenia., Edited by A.
Tasman and S.M. Goldfinger, APA Press, Washington, D.C., Voi.10, Section 1, Chapter 1, pp. 7-
23;1991.

6. Khat, V., M.F. Egan, T.M. Hyde, and R.J. Wyatt. Neuroleptics and classic tardive dyskinesia.
In: Drug-Induced Movement Disorders., Edited by A.E. Lang and W.J. Weiner, Futura Publishing,
Mount Kisco, N.Y., pp. 121-166, 1992.

7. Kleinman, J.E. and T.M. Hyde. Structural foundations of mental illness and treatment:
neuroanatomy. In: Current Psychiatric Therapy., Edited by D.L. Dunner, W.B. Saunders Co.,
Philadelphia, Pa., ppc 3-7, 1992.

8. Wolf, S. S., T.M. Hyde, and D.R. Weinberger. Neurobiology of schizophrenia. In: ~
Opinion in Neurology and Neurosurgery. 6: 86-92, 1993.

9. Ohuoha, D.C., T.M. Hyde, and J.E. Kleinman. The role of serotonin in schizophrenia: an
overview of the nomenclature, distribution, and alterations of serotonin receptors in the central
nervous system. In: Psychopharmacology. (Supplement: Proceedings on Serotonin, Dopamine,
and Their Interactions in Schizophrenia; Edited by R.S. Kahn and M. Davidson.) 112: S5-S15,
1993.

10. Hyde, T.M., J.C. Ziegler, and D.R. Weinberger.· Response to letter re: psychopathology in
metachromatic leukodystrophy. In: Archives of Neurology. 50: 131, 1993.

11. Egan, M.F., T.M. Hyde, A. Elkashef, and R.J. Wyatt. Response to letter re: treatment of
tardive dyskinesia with vitamin E. In: American Journal of Psychiatrv. 150: 992-993, 1993.

12. Clardy, J.A., T.M. Hyde, and J.E. Kleinman. Chapter 7. Postmortem neurochemical and
neuropathological studies in schizophrenia. ln.: Schizophrenia: from mind to molecule. Edited
by N.C. Andreasen. American Psychiatric Press, Washington, D.C., pp. 123-145, 1994.

13. Kleinman, J.E .., T.M. Hyde,. and M. M. Herman. Chapter 75. Methodological issues in the
neuropathology of mental illness. In: Psychobharmacology: the Fourth Generation of Progress.
Edited by F.E. Bloom and D.J. Kupfer. Raven Press: New York. pp. 859-864, 1995.

625
14. Coppola, R.C. and T.M. Hyde. Applied Electrophysiology. In: Comprehensive Textbook of
Psychiatry.Edited by H. I. Kaplan and B.J. Sadock. Williams and Wilkins: Baltimore. pp. 72-79,
1995.

15. Daniel, D.G., K. Smith, T.M. Hyde, and M.F. Egan. Neuroleptic-induced tardive dyskinesia.
In: American Journal of Psvchiatrv. 153: 734, 1996.

16. Katsetos, C.D., T.M. Hyde, and M.M. Herman. Neuropathology of the cerebellum in
schizophrenia- an update: 1996 and future directions. In: Biological Psychiatrv. 42: 213-224,
1997.

17. Bachus, S.E., T.M. Hyde, M. Akil, C.S. Weickert, M.P. Vawter, and J.E. Kleinman.
Neuropathology of suicide: a review and an approach. In: Annals of the New York Academy of
Sciences836: 201-219, 1997.

18. Kittell, D.A., T.M. Hyde, M.M. Herman, and J.E. Kleinman. The collection of tissue at
autopsy: practical and ethical issues. In: Using CNS Autopsy Tissue in Psychiatric Research.
Edited by B. Dean, T.M. Hyde, and J.E. Kleinman. Harwood: Melbourne, Australia. pp. 1-18,
1998.

19. Egan, M.F. and T.M. Hyde. The neurobiology of schizophrenia. In: Comprehensive
Textbook of Psychiatrv. Edited by H. I. Kaplan and B.J. Sadock. Williams and Wilkins: Baltimore.
Volume I, pp. 1129-1146, 1999.

20. Hyde, T.M. and J.M. Crook. Cholinergic systems in schizophrenia: primary pathology or
epiphenomena. In: J. Chemical Neuroanatomy. 22: 53-63, 2001.

21 .. Freed, W.J., Lehrman, E., Hyde, T.M., Kleinman, J.E., Vawter, M.P., and Becker, K. Gene
expression profiling in drug abuse. In: 2001 ONDCP International Technology Symposium
Proceedings: Counterdrug Research and Development .. 1: 119-131, 2001.

22. Freed, W.J., T.M. Hyde, J.E. Kleinman, K. Becker, and M.P. Vawter. Analysis of gene
expression in schizophrenia using DNA microarrays. In: The Economics of Neuroscience. 4: 48-
57,2002.

23. Hyde, T.M. Tourette syndrome. In: The Encyclopedia of Cognitive Science. Edited by L.
Nadel. Nature Publishing Group: London. 2002.

24. Hyde, T.M. Cognitive Impairment in Demyelinating Disease, In: The Neurobiology of Mental
Illness. Edited by D.S. Charney and E.J. Nestler. Oxford University Press: San Francisco; pp.
873-880, 2003.

25. Hyde, T.M. and S. W. Lewis. The secondary schizophrenias. In: Schizophrenia. Edited by
S.R. Hirsch and D.R. Weinberger. Blackwell Science: Oxford, England; pp. 187-202,2003.

26. Lehrmann, E., T.M. Hyde, M.P. Vawter, K.G. Becker, J.E. Kleinman and W.J. Freed. The
use of microarrays to characterize neuropsychiatric disorders: postmortem studies of substance
abuse and schizophrenia. In: Cumin! Molecular Medicine 3: 437-446, 2003.

27. Hyde, T.M., J.A. Apud, W.C. Fisher, and M.F. Egan. Tardive dyskinesia. In: Drug Induced
Movement Disorders. Edited by S.A. Factor, A. E. Lang, and W. 'J. Weiner. Futura Publishing
Co.: Armonk, N.Y.; Chapter 9, pp. 213-256.

626
28. Mathew, S.V., S.N. Mitkus, B.K., Lipska, T.M. Hyde, and J.E. Kleinman. Postmortem Studies:
A Focus on Susceptibiltty Genes in Schizophrenia . in: The Handbook of Contemporary
Neuropharmacology Edited by D.R. Sibley, I. Hanin, M. Kuhar, and P. Skolnick. John Wiley &
Sons, New York. 200S.

29. Hyde, T.M. Cognitive Impairment in Demyelinating Disease. In: The Neurobiology of Mental
Illness. Edited by D.S. Charney and E.J. Nestler. Oxford University Press: San Francisco; pp.
1001-1009, 2009.

30. Deep-Soboslay, A, F.M. Benes, V. Haroutunian, J.K. Ellis, J.E. Kleinman, and T.M. Hyde.
Psychiatric Brain Banking: Three Perspectives on Current Trends and Future Directions.
Biological Psychiatry. 69: 104-112, 2011.

31. Kleinman, J.E., A.J. Law, B.K. Lipska, T.M. Hyde, J.K. Ellis, P.J. Harrison, and D.R.
Weinberger. Genetic neuropathology of schizophrenia: new approaches to an old question and
new uses for postmortem human brains. Biological Psychiatry. 69:140-145,2011.

32. Hyde, T.M. and M.A. Ron. The Secondary Schizophrenias. In: Schizophrenia. Edited by
D.R. Weinberger and Paul J. Harrison. Wiley-Blackwell: West Sussex, United Kingdom; pp.
165-184, 2011.

33. Mighdoll, M.l., Tao, R., Kleinman, J.E., and Hyde, T.M .. Myelin, myelin-related disorders,
and psychosis~ Schizophrenia Research. 161: 85-93, 2015.

34, Hyde, T.M. and R.A. Bharadwaj. Molecular mechanisms and timing of cortical immune
activation in schizophrenia. American Journal of Psychiatry. In press, 2015.

627
Filing# 59372743 E-Filed 07i:2lt2017 04:52:08 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No. 2008-CF -697 A

DEATH PENALTY

GARY HILTON,

Defendant.

AMENDED CLAIM 6 1 OF SECOND AMENDED MOTION

FOR POST-CONVICTION RELIEF

Defendant Gary Hilton, through counsel, respectfully moves this Court for an Order,

pursuant to Fla. R. Crim. P. 3.851, vacating and setting aside the judgments of convictions and

sentence, including his sentence of death, imposed upon him by this Court. In support thereof,

Mr. Hilton respectfully submits as follows:

I) The Court entered an order dismissing Defendant's Claim 6 as being legally

insufficient on June 14,2017. The Court granted leave to amend the claim within thirty

(30) days.

2) The Defendant sought leave for an extension of time to file an amendment to Claim

Six (6) and the Court granted leave until July 21,2017.

3) The Defendant respectfully requests that the Court accept this pleading as an

amendment of Claim Six (6) and incorporate it into the previously filed pleading as if

set forth therein.

1 Claim Six (6) is incorrectly numbered as Claim 7 in the Second Amended Motion for Post-Conviction Relief.

628
Claim 6: Trial counsel was ineffective for their failure to preserve for appeal the denial
of cause challenges during jury selection

It is essential to defense counsel's role as an advocate that he/she preserve reversible errors

for appellate review. The error at issue here is the trial court's denial of Trial Counsel's for-cause

challenges. Denial of a challenge for cause is grounds for reversible error. Hamilton v. State, 54 7

So. 2d 630, 632 (Fla. 1989). In order to preserve such an error for appellate review, where trial

counsel's motion to strike a juror for cause is denied, and he is thereafter forced to exhaust all

peremptory challenges, he must first "identify a specific juror whom he otherwise would have

struck peremptorily". Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990).

In the instant case, Jury Selection proceeded over the course of several days. (R. Jury

Selection, 1-1 082). There were numerous "cause challenges" that were asserted during jury

selection. Many of them were granted, but many of them were not. While the defense team made

objections to the denial of cause challenges, the defense team failed to preserve any of these

objections for the purposes of appellate review by utilization of the process outlined in Trotter.

The defense team went to the painstaking effort of objecting to the empanelment of a large number

of prospective jurors from the jury pool only to fail to make an objection that served to request

additional peremptory challenges in the face of the denial of a cause challenge, articulate the reason

for the request and identify why a particular juror would have been/should have been stricken as

well as why a different juror would have been better suited. Likewise, the defense team allowed

for the swearing of the jury without noting the aforementioned procedures and any objections.

The Defendant asserts that the failure to properly preserve the denial of cause challenges

for appellate review was and is ineffective assistance of counsel. See Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052,80 L.Ed.2d 674 (1984). There is no question that the defense team

629
did not meet their burden of preserving any issues related to the denial of cause challenges. The

conduct, or lack thereof, satisfies the deficient performance prong of Strickland. The prejudice

prong of Strickland is more difficult to quantify and encapsulate.

"In the context of the denial of challenges for cause, such prejudice can be shown only

where one who was actually biased against the defendant sat as a juror. We therefore hold that

where a postconviction motion alleges that trial counsel was ineffective for failing to raise or

preserve a cause challenge, the defendant must demonstrate that a juror was actually biased."

Caratelli v. State, 961 So. 2d 312 (Fla. 2007). In Caratelli, the Court articulated:

A juror is competent if he or she "can lay aside any bias or prejudice and
render his verdict solely upon the evidence presented and the instructions
on the law given to him by the court." Lusk, 446 So.2d at I 04!. Therefore,
actual bias means bias-in-fact that would prevent service as an impartial
juror. See United States v. Wood, 299 U.S. 123, 133-34, 57 S.Ct. 177, 81
L.Ed. 78 (1936) (stating, in a case involving a statute permitting government
employees to serve as jurors in the District of Columbia, that the defendant
in a criminal case still has the ability during voir dire to "ascertain whether
a prospective juror ... has any bias in fact which would prevent his serving
as an impartial juror"). Under the actual bias standard, the defendant must
demonstrate that the juror in question was not impartial-i.e., that the juror
was biased against the defendant, and the evidence of bias must be plain on
the face of the record. See Carratelli II, 915 So.2d at 1260 (citing Jenkins,
824 So.2d at 982); see also Patton v. Yount, 467 U.S. 1025, 1038-40, !04
S.Ct. 2885, 81 L.Ed.2d 847 (1984) (stating that in habeas review a state
court's findings are presumed correct and that although the record showing
the ambiguous voir dire answers of three jurors challenged for cause
"arouses some concern, only the trial judge could tell which of these
answers was said with the greatest comprehension and certainty").

The foregoing analysis essentially weighs whether the Strickland analysis is related to

prejudice suffered at the appellate level or at the trial level. The Court has resolved that issue in

favor of necessitating that a defendant demonstrate that he/she suffered prejudice at the trial level

by a juror who evidenced bias. !d. The Defendant asserts that the face of the record demonstrates

bias of jurors sought to be stricken for cause and that defense counsel was ineffective for failing

630
to preserve this matter for appellate review which would have yielded a different outcome. (R.

Jury Selection, 1-1 082).

The Defendant has not requested an evidentiary hearing on this issue and would rely on

the face of the record. In the event the Court denies Claim 6 (as amended and contained herein)

without an evidentiary hearing, the Defendant intends to present evidence related to this same

claim in support of other claims presented.

WHEREFORE, the Defendant respectfully requests that the foregoing pleading be

accepted as Claim 6 and incorporated into the previously filed post-conviction pleading as if set

forth therein.

Respectfully submitted,

Is/Robert A. Morris _ _ _ _ _ __
ROBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
efiling@ramlawyer.com
ATTORNEY FOR DEFENDANT
COURT APPOINTED

631
 CERTIFICATION

Pursuant to Rule 3.851 (e)(F) the undersigned counsel certifies that the contents of this

pleading have been discussed with the Defendant fully and that Counsel has complied with the

Rules of Professional Conduct and that this pleading is filed in good faith.

Is/Robert A. Morris=::--:==----
ROBERT A. MORRIS, ESQ.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant State

Attorney Georgia Cappleman, SA02_LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 21st day of July, 2017.

Is/Robert A. Morris=-=c::-:=-=-=----
ROBERT A. MORRIS, ESQ.

632
Filing# 59416367 E-Filed 07/24/2017 02:12:28 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697

v.

GARY M. HILTON,
Defendant.

JUSTICE ADMINISTRATIVE COMMISSION'S RESPONSE TO

MOTION TO INCUR COSTS RELATED TO DR. THOMAS HYDE, M.D, Ph.d.
AND
REQUEST TO APPEAR TELEPHONICALLY

COMES NOW, the Justice Administrative Commission ("JAC"), by and through the

undersigned attorney and files this response to the above-cited motion as follows:

I. Robert A. Morris (Counsel) is seeking is seeking authorization for 40 hours at an hourly

rate of $300 and $150 per hour for travel for an out of state neuropsychologist.

2. JAC may only pay for miscellaneous expenses as provided by Section 27.711(6), F. S.

That subsection provides a cap of $15,000 and JAC's records show that $7,939.94 has been paid

as of this date. Inasmuch as the remaining service sought will exceed the cap, JAC objects to

authorization of services exceeding the statutory cap.

3. The rate for experts in this circuit is $150 per hour. JAC objects to any rates in

excess of the established rates.

4. Counsel has the burden to establish the particularized need for expert services.

Counsel needs to show the expert is necessary for the defense of the case.

5. Counsel also has the burden to establish diligent efforts to obtain services within the

rates established by law

6. As to the appointment of an out-of-state expert, JAC objects. While an indigent

defendant has a due process right to the assistance of experts in his or her defense, that right is

633
not unfettered. See Lavender v. State, 889 So.2d 882, 885 (5th DCA 2004). The right is limited

to experts that are relevant and necessary to the defense of the case. See id. The defendant is not

entitled to a specific expert or one of his or her "personal liking", but is only entitled to the

services of a competent expert. See Walls v. State, 926 So.2d 1156, 1177 (Fla. 2006). The use

of out of state providers is unnecessary and unreasonable where there are competent experts in

the field available within the state.

7. The JAC Capital Collateral Contract specifically addresses this issue. Paragraph

IV(l5) provides as follows:

Attorney shall not seek authorization from the court for out-of-state experts or
mitigation specialists, absent a showing that there are no such providers with
appropriate skills or expertise available, first, in the county in which the case was
filed and, second, in any other county in the State of Florida. If Attorney obtains
an out-of-state due process provider without making such a showing, Attorney
agrees not to request reimbursement for any travel expenses including
compensation for travel time on behalf of the due process provider. An order
authorizing the employment must be in writing and contain specific findings
regarding the unavailability of a qualified in-state expert or mitigation specialist.
The attorney shall submit a copy of the order to JAC.

As directed by the JAC Contract, absent a showing that there are no competent experts available

within Florida, this Court should not authorize the retention of an out-of-state expert.

8. The additional costs associated with out-of-state experts such as travel time and travel

expenses can dramatically increase the amount incurred for the expert services.

9. Although the defense may desire the services of the requested expert because of his

preeminence in the field, the standard is whether there are competent experts within Florida who

can address the concerns indicated in Counsel's motion. In that there are numerous experts

within Florida who perform the type of evaluation set forth in Counsel's motion, JAC anticipates

Counsel cannot meet the substantial burden set forth in the JAC contract executed by Counsel.
2

634
I 0. JAC requests that this matter be set for hearing. JAC requests to appear

telephonically and may be reached toll-free at (866) 355-7902.

WHEREFORE, the JAC requests this Court, should it grant the Defendant's motion, also

include in its order the specific due process services authorized, as well as hourly or per unit

rates and maximum fees approved, and that the provider be paid in accordance with rates, terms

and conditions set forth by Florida Statutes, and the JAC contract, policies and procedures.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by

email, and/or U.S. Mail as indicated this 24th day of July, 2017 to:

Robert A, Morris, Esq.

Sent via email

Respectfully submitted,

ANA CRISTINA MARTINEZ

GENERAL COUNSEL

Is/ Bradley R. Bischoff

BRADLEY R. BISCHOFF
Assistant General Counsel
Justice Administrative Commission
P.O. Box 1654
Tallahassee, Florida 32302
Tel: (850) 488-2415
pleadings@justiceadmin.org
Florida Bar No.: 0714224

635
Filing# 60074714 E-Filed 08/0/, L017 05:30:07 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No.: 2008-CF-000697-A

CAPITAL CASE
GARY MICHAEL HILTON,

Defendant.
--------------------------~/
STATE'S ANSWER TO AMENDED CLAIM 6

COMES NOW, the State of Florida, by and through the undersigned

counsel, and hereby responds to Defendant Hilton's Amended Claim 6. On April

20, 2017, Hilton filed his Second Amended Motion for Post-Conviction Relief

("Motion"), raising seven claims for relief. One June 14, 2017, this Court entered

an Order striking Claim 6 of Hilton's Motion. Hilton filed his Amended Claim 6 of

Second Amended Motion for Post-Conviction Relief ("Amended Claim 6") on

July 21, 2017. This Answer to Hilton's Amended Claim 6 follows.

Claim 6: Whether Trial Counsel was Ineffective for Failing to Preserve

for Appeal the Denial of Cause Challenges During Jury Selection

Hilton puts forth a conclusory claim that trial counsel was ineffective for

failing to preserve the denial of cause challenges in accordance with Trotter v.

State, 576 So. 2d 691 (Fla. 1990), so that such denials could be raised on appeal.

636
This claim fails for three reasons: trial counsel was not deficient because she

followed proper procedures during jury selection; Hilton is unable to demonstrate

prejudice by showing that an actually biased juror sat on his jury; and this claim is

insufficiently pled.

Firstly, trial counsel followed the procedure set forth in Trotter v. State for

preserving the denial of cause challenges for appeal. Trotter requires that trial

counsel demonstrate on the record that all peremptories have been exhausted and

that a specific objectionable juror has been seated on the jury that counsel would

strike if he or she had a peremptory challenge available. 576 So. 2d at 693. Ines

Suber, one of Hilton's defense attorneys, followed the Trotter procedure during

jury selection. After Suber's request for additional peremptory challenges was

denied, she laid a record identifying a juror she would have liked to remove by use

of a peremptory challenge. She stated, "I am required to state whoever, pursuant to

- I would like to keep, the record reflect that if I were to be granted peremptory, I

would strike Rice, Sally, Rice, because of her views on the death penalty."

(R/23: 1077) Counsel cannot be deemed ineffective for failing to do something that

she, in fact, did. Bates v. State, 3 So. 3d 1091, 1106 fn. 20 (Fla. 2009) (observing

that counsel cannot be held ineffective for what counsel actually did); Stephens v.

State, 975 So. 2d 405, 415 (Fla. 2007) (explaining that counsel cannot be deemed

ineffective for failing to object, when, in fact, he did).

637
 Secondly, Hilton cannot satisfy Strickland's prejudice prong because there is

nothing in the record that demonstrates that any of the jurors seated in Hilton's

case were actually biased. A Strickland claim related to jury selection requires

proof, plain on the face of the trial record, that an actually biased juror sat in the

case. In Carratelli v. State, 961 So. 2d 312 (Fla. 2007), the Florida Supreme Court

concluded that a Strickland claim for failing to preserve a denial of a challenge for

cause must establish that an actually biased juror sat on the jury, and such bias

must be plain on the face of the record. The court went on to define an actually

biased juror as one who is not impartial; one who is biased 1 against the defendant.

Id. at 324.

Here, Hilton has failed to provide specific allegations of jurors' actual bias.

Rather, Hilton relies on the broad claim that the face of the record reflects juror

bias, without referencing a single specific juror or even a section of the record that

supports his claim. (Amended Claim 6 at 3-4) Furthermore, nothing in the record

indicates that any of the jurors were actually biased. If Hilton cannot identify

specific jurors that were actually biased, he cannot demonstrate prejudice.

1
Actual bias means bias-in-fact that would prevent service as an impartial juror. See United
States v. Wood, 299 U.S. 123, 133-34 (1936) (stating, in a case where U.S. government
employees served as jurors in a criminal case prosecuted by the U.S. government, that the jurors'
employment status did not automatically disqualify them, but the defendant had the ability
during voir dire to "ascertain whether a prospective juror ... has any bias in fact which would
prevent his serving as an impartial juror").
3

638
 Finally, this claim is insufficiently pled. Hilton has simply alleged that trial

counsel was ineffective because cause challenges were not preserved. He does not

identify which cause challenges counsel should have preserved, nor does he

identify which of the jurors who served on his jury were biased. While Hilton has

added additional legal discussion to his Amended Claim 6, his allegations remain

facially insufficient because he still fails to provide specific facts that would

support his conclusions. To be entitled to relief, Hilton must provide specific

factual allegations about which cause challenges were not properly preserved and

why a failure to do so was prejudicial. The defendant "bears the burden of

establishing a prima facie case based upon a legally valid claim." Hannon v. State,

941 So. 2d 1109, 1139 (Fla. 2006) (explaining that where a movant presents only

bare conclusory allegations on several issues, summary denial was proper).

Amended Claim 6 remains facially insufficient. For these reasons, this claim

should be summarily denied.

CONCLUSION

WHEREFORE, the State prays this Court summarily deny Hilton's

Amended Claim 6.

Respectfully submitted;

PAMELA JO BONDI
ATTORNEY GENERAL
4

639
Is/ Jennifer L. Keegan
JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL
Florida Bar No.: 0105283
PL-01, The Capitol
Tallahassee, FL 32399-1050
jennifer.keegan@myfloridalegal.com
capapp@myfloridalegal.com
Phone: (850) 414-3579
Co-counsel for the Plaintiff

JACK CAMPBELL
STATE ATTORNEY

Is/ Georgia Cappleman

GEORGIA CAPPLEMAN
ASSISTANT STATE ATTORNEY
Florida Bar No.: 566071
301 South Monroe St., Ste. 475
Tallahassee, FL 32301-1861
capplemang@leoncountyfl.gov
Phone: (850) 606-6062
Co-counsel for the Plaintiff

640
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished via the eportal to Robert A. Morris, Esq., alex@rarnlawyer.com,

Attorney for the Defendant; and the Office of the State Attorney,

SA02_Leon@leoncountyfl.gov; this 7th day of August, 2017.

Is/ Jennifer L. Keegan

JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL

641
Filing# 60386320 E-Filed 08/1,.,2017 05:46:13 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE NO: 2008-CF-697A

DIVISION: FELONY

DEATH PENALTY
GARY MICHAEL HILTON,

DEFENDANT.
----------------------~/

GARY HILTON'S AUGUST 14,2017 WITNESS LIST

COMES NOW, the undersigned attorney, and files this witness list on behalf of

GARY MICHAEL HILTON, the Defendant in the above-styled cause, pursuant to Fla.

R. Crim. P. 3.851(f)(5)(A).

NON-EXPERT WITNESSES

1. Gary Michael Hilton

2. Paula Saunders

3. Rob Friedman

4. Merribeth Bohanan

5. Nancy Daniels

6. Betty Fuentes

7. Andy Thomas

8. Steven Been

642
9. Tracy Record

10. Chris EUrich

11. Julie Hartwein

12. Kim Stevens

13. Monica Jordan

14. Nicole Jamieson

15. John Tomasino

16. Paulette Goldman

17. Dr. Needham Bateman III, DVM

18. Pamela Burnett

19. Kenneth Caldwell

20. Sandra Herman Carr

21. Roy Cave

22. Kay Dameron

23. Dr. Harry Delcher, MD

24. Joyce Dittmer

25. Daniel Fendley

26. Lionel Sonny Hilton

27. Phillip Kitchen

28. Elaine Leming

29. Ronald Miller

2

643
30. Heather Parrott

31. Phillip Daryl Previ

32. Paul Pruitt

33. Donald Stephen Reynolds

34. Nina Reynolds

35. Brenda Roberts

36. Tom Rogers

37. Robert Schmidt

38. Christa Sparks

39. Barbara Speed

40. Karen Stansbury

41. Jeff Hibbard

42. Johnny Pickens

43. Dina Baugh

44. Cameron Baugh

45. Sandra Cobb

46. Jay Martin Vague

47. James Poor

48. Jerald Simon

49. Eddie Styx

644
50. LanceR. Stewart

51. Hardin L. Olson

52. Glen Rice

53. Bruce Garlow

54. Eddie [LNUNK]

55. Harry [LNUNK]

56. William Ray Edmundson

57. Eddie Thornton

58. Stella Locker

59. John Tabor

60. Walter Goddard

61. Holly Ayers

62. Georgia Cappleman (for limited internal procedural procedure testimony)

63. Laura Johnson

64. Chad Smallwood

65. Justin Wight

66. Any and all witnesses listed previously listed as witnesses by the defense and
the State of Florida.

645
 EXPERT WITNESSES

67. Dr. Wu (testified at trial and any available reports previously disclosed)

68. Dr. Sesta (listed as a defense witness for trial and any available reports
previously disclosed)

69. Dr. Ouaoa (listed as a defense witness for trial and any available reports
previously disclosed)

70. Dr. Golden (testified at trial and any available reports previously disclosed)

71. Dr. Morton (testified at trial and any available reports previously disclosed)

72. Dr. Strauss (testified at trial and any available reports previously disclosed)

73. Dr. Hyde (pending court ruling)

74. Dr. Michelle Quiroga (performed a neuropsychological exam on Mr. Hilton

previously)

75. Dr. Donna Maddox (retained by Mr. Hilton's defense team in United States v.
Gary Michael Hilton)

76. Dr. Norman Camp (a military psychiatrist who has reviewed Mr. Hilton's
military records)

Respectfully submitted this 14'h day of August, 2017.

Is/Robert A. Morris'==-=-=----
ROBERT A. MORRIS, ESQ.
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
Attorney for Defendant
COURT APPOINTED

646
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 30 I S. Monroe Street, Tallahassee, Florida 3230 I, Assistant State

Attorney Georgia Cappleman, SA02_LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 14th day of August, 2017.

Is/Robert A. Morris==-===----
ROBERT A. MORRIS, ESQ.

647
Filing# 60388126 E-Filed 08/1.,.,2017 06:48:23 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE NO: 2008-CF-697A

DIVISION: FELONY

DEATH PENALTY
GARY MICHAEL HILTON,

DEFENDANT.
_______________________,/

GARY HILTON'S AUGUST 14,2017 EXHIDIT LIST

COMES NOW, the undersigned attorney, and files this exhibit list on behalf of

GARY MICHAEL HILTON, the Defendant in the above-styled cause, pursuant to Fla.

R. Crim. P. 3.851(f)(5)(A).

EXHIBITS (available for inspection and duplication)

• 69 memoranda prepared by Betty Fuentes

• The Birth Certificate of Gary Michael Hilton

• 28 Page Baby Book of Gary Michael Hilton

• 7 intra-Office of the Public Defender email threads

• Hospice certificates and documentation related to Cleo Debag

• Primary care documentation related to Cleo Debag

• HealthSouth documentation related to Cleo Debag

• Death Certificate William Esco Hilton

648
• Gary Michael Hilton Florida DOC medical and mental health records

• Gary Michael Hilton North Caro !ina jail records

• Gary Michael Hilton DR and Grievance records

• Letter from Edna Hilton to Elaine Heming

• ME and Toxicology results and reports related to indictment and dismissal of

murder charges against Edna Hilton and newspaper articles

• SSN employment history of William E. Hilton 1937-1971

• GBI criminal history of Gary Michael Hilton

• Dekalb County Magistrate Court history of Gary Michael Hilton

• Dekalb County Police Department criminal history of Gary Michael Hilton

• Georgia criminal history of Gary Michael Hilton

• Miami-Dade Juvenile Criminal History of Gary Michael Hilton

• Cherokee County Sheriffs Department records related to Gary Michael Hilton

• Hialeah arrest records and articles related to Gary Michael Hilton

• Cobb County arrest records related to Gary Michael Hilton

• Dekalb County Police department records related to Gary Michael Hilton

• Dekalb County arrest record of Gary Michael Hilton

• Dekalb County Clerk of Court records related to Gary Michael Hilton

• Dekalb County Stone Mountain District/Circuit records related to Gary Michael

Hilton

• GBI- GCI Summary

649
• Hialeah arrest reports related to Gary Michael Hilton

• Miami arrest records and information related to Gary Michael Hilton

• Miami- Dade Clerk of Court records related to Gary Michael Hilton

• Dr. Deicher's file

• Receipt re: Dr. Deicher

• Dr. Deicher's medical board findings with respect to treatment of Gary Michael

Hilton and other patients.

• Federal Defender's Office file re: Dr. Deicher

• Organized chronological version of treatment by Dr. Deicher of Gary Michael

Hilton 5/4/05- 9/19/07

• Dissolution of Marriage from Ursula Hilton

• Marriage certificate to Betty Galloway

• Marriage certificate to Dina Baugh

• "Dandy" veterinarian recors

• Photos (fur pictures, notes, dog towels, pictures of and related to "Ranger")

• Veterinary records

• OBI Reg. 8 Inv. Summary

• 9 page memo SA Bridges

• CD # 18 transcript of Gary Michael Hilton interview by SA Bridges

• 120 page transcript of interview with Gary Michael Hilton

• II page transcript of interview by SA Bridges of Gary Michael Hilton

650
• 57 page transcript of interview by SA Bridges of Gary Michael Hilton

• Pages 1-811 of Florida DOC medical records related to Gary Michael Hilton

• CVS Pharmacy records related to Gary Michael Hilton

• Dixie City Pharmacy records related to Gary Michael Hilton

• NC Jail medical records

• Gary Michael Hilton Lyme Disease report

• Kroger prescription records for Gary Michael Hilton

• List of pharmacy and prescription records for Gary Michael Hilton

• Piedmont Hospital records for Gary Michael Hilton

• Walgreen's prescription records related to Gary Michael Hilton

• Military records of Gary Michael Hilton

• Psychological evaluation and hospitalization records of Gary Michael Hilton by

the military

• Atlanta public school records related to Gary Michael Hilton

• Chicago public school records related to Gary Michael Hilton

• Cook County school records related to Gary Michael Hilton

• Dade County school records related to Gary Michael Hilton

• Hialeah 61h grade school records related to Gary Michael Hilton

• Miami Dade Community College school records related to Gary Michael Hilton

• Hillsborough County school records related to Gary Michael Hilton

• 22 page Miami Dade college records related to Gary Michael Hilton

651
• Statements and declarations of witnesses for post-conviction proceedings

• Any and all exhibits listed by the State of Florida and by the defense for the

purposes of trial as well as introduced at trial

• A reservation of the right to amend the exhibit list as evidence becomes available

Respectfully submitted this 14th day of August, 2017.

Is/Robert A. Morris
ROBERT A. MORRI=:::::-S,-::E::-::Sc::Q:-.---
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
Attorney for Defendant
COURT APPOINTED

652
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 30 I S. Monroe Street, Tallahassee, Florida 3230 I, Assistant State

Attorney Georgia Cappleman, SA02_LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 41h Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 21 ' 1 day of July, 2017.

Is/Robert A. Morris==-===----
ROBERT A. MORRIS, ESQ.

653
Filing# 61706424 E-Filed 09/19/2017 01:30:06 PM
IN THE CIRCillT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA.

STATE OF FLORIDA CASE NO. 08CF00697

Spn 197149
vs.

Gary M Hilton,
Defendant.
I

STATE'S MOTION TO COMPEL THE PUBLIC DEFENDER TO

PRODUCE HIS FILES/RECORDS RELEVANT TO THE DEFENDNAT'S
CLAIMS OF INEFFECTIVE COUNSEL

COMES NOW the State of Florida files this motion to compel the Public Defender in and
for the Second Judicial Circuit to produce his files/records regarding the defendant that are
relevant to the defendant's claims of ineffective assistance of counsel in his Amended Rule 3.851
motion, as grounds the State would show:

I. The Defendant has raised numerous grounds in his Amended Rule 3. 851 motion
claiming that the Public Defender's Office rendered ineffective assistant of counsel in the above
styled cause.
2. By filing the post conviction motion alleging ineffective assistance of counsel, the
defendant has waived the attorney client privilege to former counsel's files and records relevant
to the claims. Arbelaez v. State, 775 So. 2d 909 (Fla. 2000).
3. The Public Defender is requesting a court order compelling release of his files/records
regarding the defendant.
4. The defendant's current post conviction counsel, Robert A. Morris, has been contacted
and does not oppose this motion.

WHEREFORE the State requests this Court to enter an order granting the relief requested
herein.

Respectfully submitted,

JACK CAMPBELL
STATE ATTORNEY

Is/Eddie D. Evans
Assistant State Attorney

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing motion has been furnished to Robert
A. Morris, efiling@ramlawyer.com, on September 19, 2017, by e-service.

Is/Eddie D. Evans
Assistant State Attorney

654
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA CASE NO. 2008CF697

v.
SPN: 197149
GARY MICHAEL HILTON,
Defendant.
--------------------------~/

ORDER COMPELLING STATE'S MOTION TO COMPEL THE PUBLIC

DEFENDER TO PRODUCE HIS FILES/RECORDS RELEVANT TO THE
DEFENDNAT'S CLAIMS OF INEFFECTIVE COUNSEL

THIS CAUSE is before the Court on the State's motion to compel the Public Defender in
and for the Second Judicial Circuit to produce his files/records regarding the defendant that are
relevant to the defendant's claims of ineffective assistance of counsel in his Amended Rule 3.851
motion, the defendant's current post conviction counsel having no objection, and the Court being
fully advised, it is hereby,

ORDERED AND ADJUDGED that the Public Defender in and for the Second Judicial
Circuit produce to the State Attorney's Office, his files/records regarding the defendant that are
relevant to the defendant's claims of ineffective assistance of counsel in his Amended Rule 3.851
motion.

DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida this

day of September, 2017.
lq +Lt.
es C. Hankinson
C cuitJudge

Copies furnished to:

Georgia Cappleman, Assistant State Attorney
Robert A. Morris, Counsel for the Defendant
Andy Thomas, Public Defender

655
Filing# 61934562 E-Filed 09/2. 017 12:28:40 PM
!),$'

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF-697A

vs. DIV.: FELONY

GARY MICHAEL HILTON, DEATH PENALTY

Defendant.
----------------------~/

EXPEDITED UNOPPOSED MOTION

TO CONTINUE EVIDENTIARY HEARING

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, pursuant to Rule 3.85l(f)(5)(C), Florida Rules of Criminal Procedure and moves this

Court to continue the evidentiary hearing presently scheduled in this matter and in support

thereof states as follows:

I. The Defendant is indigent and the undersigned was appointed by the Court to

represent the Defendant in this capital collateral post-conviction proceeding.

2. An evidentiary hearing is presently set for October 3, 2017- October 6, 2017. The

hearing has been set for several months after continuances and changes in the legal

landscape.

3. The parties have been diligently preparing for the hearing.

4. Counsel for the Defendant has encountered a significant obstacle in his ability to

proceed forward that is personal in nature.

656
5. The undersigned has had a personal medical issue that has required and continues to

require immediate attention.

6. Counsel met with a surgical specialist on Friday, September 22, 2017. The surgeon

noted the urgency of the procedure and immediately scheduled the procedure for

Wednesday, September 27,2017.

7. The procedure/s scheduled are not elective procedures and they are medically

necessary. The surgeon has advised counsel that he should anticipate being

incapacitated from work for approximately one week (until October 5, 2017) due to

pain management. The invasiveness and the extent of the procedure will require pain

medication for approximately seven (7) to ten (I 0) days. This period would be during

the scheduled hearing in this matter. Thereafter, the surgeon has advised that there

will be a four (4) to six (6) week period of treatment and rehabilitation.

8. In candor, the undersigned does not believe his attention to the matter at hand has

been sufficient over the last several weeks and would not be sufficient in the coming

weeks to afford appropriate representation. Counsel's primary focus has been a

selfish one related to his own health. Asking to be relieved as counsel of record

would not afford the Defendant better representation. It would protract a case that

has a lengthy history.

9. The undersigned has practiced many years before this Court and recognizes the

importance of moving the instant case forward. However, this is an instance that

cannot be helped or avoided.

657
 I 0. The undersigned has conferred with Assistant State Attorney Georgia Cappleman and

she has no objection to a continuance ofthe evidentiary hearing in this matter under

the given circumstances.

II. While the rule of procedure does not require a verification of counsel, the

undersigned certifies that this Motion is filed in good faith and not solely for the

purposes of delay as required by Rule 3.190(f)(4), Florida Rules of Criminal

Procedure.

WHEREFORE the Defendant requests the entry of an order granting a continuance of

the evidentiary hearing and setting the matter for a case management to determine an alternate

hearing date.

Respectfully submitted,

Is! Robert A. Morris

ROBERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue.
Tallahassee, Florida 3230 I
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com

658
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant General

Counsel Bradley Bischoff, Justice Administrative Commission, pleadings@justiceadmin.org,

Deputy Chief State Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State

Attorney's Office, Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL,

and Jennifer Keegan, jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of

the Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 25tl' day of

September, 2017.

Is/ Robert A. Morris

ROBERT A. MORRIS, ESQUIRE

659
Filing# 61943402 E-Filed 09/: Wl7 02:04:09 PM
;H....

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

Plaintiff, CASE NO.: 2008 CF 697 A

vs. SPN NO.: 197149

GARY MICHAEL HILTON,

Defendant.
----------------~/
ORDER GRANTING DEFENDANI''S EXPEDITED UNOPPOSED
MOTION TO CONTINUE EVIDENTIARY HEARING

THIS CAUSE having coming before the Court upon Defendant's Expedited
Unopposed Motion To Continue Evidentiary Hearing, filed September 25, 2017,
and the Court being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that the motion be granted. The evidentiary
hearing set for October 3 - 6, 2017 is hereby continued. A case management
conference is set for October 17, 2017 at 10:30 a.m.
DONE and ORDERED this)..<;;.._,. d~ of September, 2017, in Tallahassee,
Leon County, Florida.

Copies:
Georgia Cappleman, Assistant State Attorney
Alex Morris, Defense Counsel

660
Filing# 70890056 E-Filed 04;,6/2018 01:29:33 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF-697A

vs. DIV.: FELONY

GARY MICHAEL HILTON, DEATH PENALTY

Defendant.
_______________________/
UNOPPOSED MOTION TO CONTINUE EVIDENTIARY HEARING

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, pursuant to Rule 3.851 (f)(5)(C), Florida Rules of Criminal Procedure and moves this

Court to continue the evidentiary hearing presently scheduled in this matter and in support

thereof states as follows:

I. The Defendant is indigent and the undersigned was appointed by the Court to

represent the Defendant in this capital collateral post-conviction proceeding.

2. An evidentiary hearing is presently set for the week of April 30, 2018. The hearing

has been set for several months.

3. The hearing was last continued by the undersigned due to an imminent and urgent

surgical procedure. Fortunately, Counsel has recovered for the most part.

4. However, Counsel's spouse has major medical issue necessitating Counsel's

attention. Timing could not and cannot be worse. The circumstances related to

Counsel's spouse involve multiple doctors' appointments locally in Tallahassee as

well as upcoming appointments in Jacksonville and/or Gainesville. This will be to

661
 compare and contrast the aggressiveness of surgical procedures and post-surgical

treatment options.

5. Clearly, the aforementioned circumstance is very important and demands attention.

6. The undersigned immediately contacted Assistant State Attorney Georgia Cappleman

and she advised that she had no opposition to a continuance and would join in it if

necessary. Counsel has styled the instant pleading as being unopposed because it

does not bear Ms. Cappleman's signature.

WHEREFORE the Defendant requests the entry of an order granting a continuance of

the evidentiary hearing and setting the matter for a status conference for a new hearing date to be

scheduled.

Respectfully submitted,

Is/Robert A. Morris _ _ _ _ _ __
ROBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue.
Tallahassee, Florida 323 01
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com

662
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant State

Attorney Georgia Cappleman, SA02_LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 18th day of April, 2018.

Is/Robert A. Morris=:-:=::----
ROBERT A. MORRIS, ESQ.

663
Filing# 70903093 E-Filed 04/18/2018 03:14:01 PM

IN 1J;IE ClRCU.IT c()tJRT OF THB

S.ECP"I'UJ JUDICIAL CIRCurr, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLOR!DA,

Vs.
CASilNO. 2008"CF697A

DIVISION: FELONY
GARY H!LTON,
Defendant.
I

ORDER ON UNOPPOSED MOTION FOR CONTINUANCE

THIS CAUSE, having come before the Court upon the Defendant's Unopposed Motion

for Continuance, and upon agreement Ofthe parties, it is hereby

ORDERED AND ADJUDGED the Defendant's Motion is GRANTED and the

Evidentiary hearing sched:oled the we.ek of April 30, 2018 shall be continued to the Comt' s Case

Management docket May 22,2018 at 10:30 a.m.; courtroom 3·A and the parties are instructed to

coordinate a new hearing date and time with Cha!)lbers prior to that ~.

DONE AND ORDERED in Chambers, Tallahassee, Leon County, .Florida on this

i q-t'-4. .
____l_Q__ day of April, 2018.

JAMES C. HANKINSON
· CIRCUIT JUDGE

COPIES .FURNISHED TO:

. RO:BERT A. MORRIS., ESQUIRE
Attorney I<?r :Defendant

GEORGIA CAPPLEMAN, ESQUIRE

Assistant State Attorney

664
Filing# 78516858 E-Filed OYiLr/2018 11:42:36 AM
~-

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA.

CASE NO. 08CF00697

STATE OF FLORIDA,

vs.

Gary M Hilton,
Defendant(s).
----------------~/

STIPULATED MOTION TO PERPETUATE TESTIMONY

COMES NOW, the State of Florida, by and through the undersigned Assistant State

Attorney, and pursuant to Florida Rules of Criminal Procedure 3.190 moves this Honorable

Court to enter an Order issuing a commission to take the video-taped testimony of Paula

Saunders, and as grounds therefore would allege:

The Defendant is set for hearing on his 3.850 motion the week of October 29,2018.

Paula Saunders, one of Defendant's original attorneys, is an essential State witness in the
above-mentioned hearing.

Witness Paula Saunders is unavailable for the hearing date as she has puchased plane
tickets for departure on October 25 and plans to be out-of-state for 2 weeks for the
birth of her grandchild.

Attorney for Defendant, Alex Morris, has been contacted and does not objectio thi~ ·:\
motion. · ,<,
G)

c' C·)
> ,l:-

665
 WHEREFORE, based on the foregoing, the State of Florida respectfully request that the

Court grant this Motion.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing motion has been furnished, bye-

service to, Robert A. Morris, efiling@ramlawyer.com, on Thursday, September 27,2018.

Is/Georgia Cappleman
Assistant State Attorney

666
Filing# 78569384 E-Filed 09/21l/2018 09:19:30 AM
:~-B

IN THE CIRCUIT COURT OF THE

SECONDJUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA.

CASE NO. 08CF00697

STATE OF FLORIDA,

vs.
Gary M Hilton,

Defendant(s).
I

ORDER TO PERPETUATE TESTIMONY

This cause coming on to be heard upon the State's written Motion to Perpetuate and the

Court having heard arguments of counsel and being fully advised, it is

ORDERED AND ADJUDGED that the State's Motion to Perpetuate is granted in

reference to the testimony of witness Pallia Saunders.

DONE AND ORDERED thisl.."'li~f September 2018, at LEON, Florida.

ames c. Hankinson
ircuit Judge

copies furnished to:

Georgia Cappleman, Assistant State Attorney
Robert A .. Morris, Defense Attorney

667
Filing# 79840245 E-Filed 10/L::i/2018 08:57:04 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA.

STATE OF FLORIDA CASE NO. 08CF00697

SPN 197149
vs.

Gary M Hilton,

Defendant.
I

NOTICE OF FILING
TO: Robert A. Morris

YOU WILL PLEASE TAKE NOTICE that the State is filing a disc containing the

video/audio/synched transcription of the stipulated perpetuated testimony of Paula Saunders

marked as State's Exhibit 1 for purposes of next week's 3.850 hearing in the above-styled case.

Both parties stipulate to the Judge reviewing this 2 hour testimony prior to next week's hearing if

it pleases the Court to do so.

Respectfully submitted,

JACK CAMPBELL
STATE ATTORNEY

Is/ Georgia Cappleman

Assistant State Attorney

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent to

Robert A. Morris, on October 25, 2018, by electronic service to efiling@ramlawyer.com.

lsi Georgia Cappleman

Assistant State Attorney

668
Filing# 79842070 E-Filed 10/i.J/2018 09:21:16 AM
~s

IN THE CIRCUIT COURT OF 1HE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FL
STATE OF FLORIDA,

CASE NO.: 2008-CF -697

SPN: 197149
vs.

GARY M. HILTON, DEATH PENALTY

Defendant.

UNOPPOSED MOTION TO TAKE TESTIMONY BY CONTEMPORANEOUS

VIDEO COMMUNICATION

COMES NOW the Defendant, by and through the undersigned counsel, pursuant to Rule

3.85l(f)(5)(D), Florida Rules of Criminal Procedure and moves to take testimony by

contemporaneous video communication and in support thereof, shows the following:

I. The above-styled matter is presently set for an evidentiary hearing on a post-

conviction motion October 30, 2018 November 2, 2018.

2. There are dozens of witnesses to be called and many of them are from different

states (Oregon, South Carolina, Georgia, Virginia, etc.).

3. Many of the witnesses are scheduled to appear in person.

4. However, given the logistical and financial issues related to witnesses traveling

from outside of the jurisdiction it is practical and sensible to facilitate witness

testimony via video communication (Skype, Polycom, etc.).

5. Rule 3.851 (f)(5)(D), Florida Rules of Criminal Procedure specifically provides

for witness testimony to be taken by contemporaneous video communication.

6. The undersigned has conferred with Assistant State Attorney Georgia Cappleman

and she has no objection to testimony being taken by video communication.

669
 7. Counsel is mindful of the requirements within the rule with respect to visibility of

the witness to all parties as well as the necessary safeguards required. Further,

counsel is also aware that the witness must be sworn by a notary or a person

authorized to administer an oath in the jurisdiction of the witness.

8. The undersigned is working diligently with Court Administration to make certain

the infrastructure is in place for this to run smoothly as well as with the varying

different court reporters in different jurisdictions.

WHEREFORE, the defense requests this Court enter an order authorizing the taking of

testimony by contemporaneous video communication.

Respectfully submitted,

IS/ Robert A. Morris

ROBERT A. M 0 RRic::S:::-,-:::E-:::SQ::cU;-;I::::RE-:::--
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park A venue.
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer .com

670
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Deputy Chief State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountytl.gov, State Attorney's Office,

Leon County Courthouse, 41h Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050, Brad Bischoff, Esq., Justice Administrative

Commission, P .0. Box 1654, Tallahassee, Florida 32302, pleadings@justiceadmin.org on this

251h day of October, 2018.

IS/ Robert A. Morris

.=c-=-:=-=-:==---
ROBERT A. MORRIS, ESQUIRE

671
Filing# 79849482 E-Filed 10/25/2018 10:34:44 AM

IN THE CIR~UIT CoURT OF 'tfUl

.SECOND JUDiciAL CtnCU.IT, fN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

vs.
CASE. NO. ~ous~cf".697A
DIVISION: FELONY
DEATH PENALTY
OARY HfL:tON,
Defendant.

ORDER ONUNQPPOSED MOTION TO TAKE TESTIMONY BY

CONTEMPORANEOUS VIDEO COMMUNICATION

THIS CAUSE, having come before the Court upon ~he Defendartf!t UnoPJlOSed Mo:tion to

Take testimony by Contemporaneous Video Communication; and th(s Court having rev;iewed fue

Motion .and heard 'ilrgunwnts of counsel.

It is therefore ORDERED ANI) AQ.JUDGE:D that fue Defendant's Motidn is

GRANTED. Co:unsel shall he responsible for ensuring compliance with: Rule J.ssl(f)(S)(D),

Florid;~ Rule of Criminal Prqcedure and shall he responsible for eQsuritrgtharfue utilization ofsueh

technology proc.eedsin an orderly and expedlentmannJJt as the Court would normally reqJiit!il if the

witnesses were physicallY Present

DONE- AND ORDERED in Chambers, Tallahassee,. Leqn ¢c:J.unty, Florida on this

1 / -t-·\A.... '· ..
day of October, 2018 ..
ci. . ,
•

AMES C. RANKINSON
. IR.(;UIT JUD.GB
COPIES FURNl$f!):iJ)TO:
R0JlERTA. MORRIS, ESQJJIRE
Attorney ibf:Oefendanl
QEORCllA CAPPI;!'lMAJ\1, ESQUIRE
AssistatltShjt¢ Attorney
)EJ\!Nfi'ER KEEGAN, .ESQUIRE
Assistant.At!orney Q¢!\¢ral

672
Filing# 80035083 E-Filed 10, _,v/2018 07:06:11 AM
~()

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE NO: 2008-CF-697A

DIVISION: FELONY
DEATH PENALTY
GARY MICHAEL HILTON,

DEFENDANT.
----------------------~'

GARY HILTON'S OCTOBER 30, 2018 WITNESS LIST

COMES NOW, the undersigned attorney, and files this witness list on behalf of

GARY MICHAEL HILTON, the Defendant in the above-styled cause, pursuant to Fla.

R. Crim. P. 3.85l(f)(5)(A).

Tuesday, October 30, 2018

Andy Thomas

Ines Suber

Betty Fuentes

Lunch

Dr. Norman Camp (1:00pm via video)

Dr. Harry Deicher

Wednesday, October 31, 2018

Nancy Daniels

Chris Ellricll

673
 Tracy Record (11 :OOam via video)

Lunch

Nicole Jamieson (1:30pm via video)

Julie Hartwein

Robert Friedman

Steven Been

Thursday, November 1, 2018

Dr. Donna Maddox (9:00am via video)

Roy Cave (via video)

Daniel Fendley (via video)

Merribeth Bohanan

John Tabor (via video)

Paula Saunders (via video of perpetuated testimony)

Friday, November 2, 2018

State's case

Defense rebuttal

674
 Respectfully submitted this 30th day of October, 2018.

Is/Robert A. Morris==:=-=-=----
ROBERT A. MORRIS, ESQ.
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex(tilramlawyer.com
Attorney for Defendant
COURT APPOINTED

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, yct Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant State

Attorney Georgia Cappleman, SA02_LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 30th day of October, 2018.

Is/Robert A. Morris_ _---,-_ _ __

ROBERT A. MORRIS, ESQ.

675
Filing# 80035083 E-Filed 1uie>v/2018 07:06:11 AM
.so

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FL

STATE OF FLORIDA,

vs. CASE NO: 2008-CF -697A

DIVISION: FELONY
DEATH PENALTY
GARY MICHAEL HILTON,

DEFENDANT.
--------------------~/

GARY HILTON'S OCTOBER 30, 2018 EXHIBIT LIST

COMES NOW, the undersigned attorney, and files this exhibit list on behalf of

GARY MICHAEL HILTON, the Defendant in the above-styled cause, pursuant to Fla.

R. Crim. P. 3.85l(f)(5)(A).

Exhibit 1

Exhibit 1 A Betty Fuentes Memos

Exhibit 1 B Birth

Exhibit 1 C Court Records

Exhibit I D Dissolution of Marriage

Exhibit 1 E Emails from PDO Leon

Exhibit 1 F Family

Exhibit 1 G Records Requested and Received

Exhibit 1 H School

Exhibit 1 I William Hilton death records

676
Exhibit 2

Exhibit 2 A Declarations

Exhibit 2 B Deicher

Exhibit 2 C Dog

Exhibit 2 D Medical

Exhibit 2 E Military

Exhibit 3

Mitigation Powerpoint created by Betty Fuentes

Respectfully submitted this 30'h day of October, 2018.

Is/Robert A. Morris--,--,-----
ROBERT A. MORRIS, ESQ.
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
Attorney for Defendant
COURT APPOINTED

677
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3rd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant State

Attorney Georgia Cappleman, SA02_LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4'h Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-0 1 The Capitol, Tallahassee, Florida 32399-1050 on this 30th day of October, 2018.

Is/Robert A. Morris.~,---,--,-,----­
ROBERT A. MORRIS, ESQ.

678
 ~
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DEFENDANT'S 3
EXHIBIT #'-=---

Date ll:>- 30- I '8

Case Name -:3 D-F -r • +-\.: l-\-o,..!
Case No. 7.-&>tiJ· c.F- {!q~

679
--·-·
Q)

Q)

-·
-t
CD

680
681
682
 683
kson
tore
684
685
686
687
I
-·
CJ)

-·
3
CD

688
689
690
691
692
 Cleo gave Gary this doll, she used

693
it to illustrate what would happen to
him during sinus surgery
694
695
en
-·

696
 697
Gary, other
retur ned 2
en

698
699
700
701
702
703
704
705
706
:::::r
-·
CJ)

707
 708
1951
• Gary had a pet bird named Pee Wee, Cleo
left the window open in the apartment and
the bird flew away ,
• Gary spent hours calling for the bird to
come back .

.,-.
709
710
711
en
0
a.
712
713
I
-·
en
3

-·

714
715
 716
Gary ith his
m
..

~
7\
CD

717
718
 719
1955
• Gary was 9 years old when his mother married
Nilo Debag from Argentina who was a horse
trainer. He would travel to different race tracks
around the country depending on the horse
racing season. She only dated him two months
before marrying him.
• Cleo was having financial problems at the time
and Nilo was making a lot of money.
 720
Gary at
times unt
in Ge ith
 721
916 Shadow Lawn, Tampa
House where Murphy Bed fell on
his head when he was 9 years old,
he had 200 stitches on his head
 '

"fhis is a sample of what a

722
MtJrphy Bed looks like without
the mattress.
 723
This is a Murphy bed against
the wall.
 School Record showing

724
916 Shadow Lawn
Address
mr.T.SBOROtTGH COUNTY SCErooL CENSUS RECOBD CAIU>
Hilton, Gary Michael · M «XI
••"'"''1······~------------·-·.-·····-------------·······
. autl tflrsl>
· --·--··· Birth Celtlf!cate
(mkldle>
Sll!ltt F ( )
cXl
Novem~r 22, l9ij.6 Erident:et ~Policy c l
....- ...,··---~~...··-.,;;u;,------------~;;;;-----------i;.;.;; ------- othn c 1

~ce-------~~~~-~~~--------~~~~1!~-------~~e;ia
fellY> (Comt:n -------------------~-----------------------
· (s;ateJ
Fathv Mother
••...Mx!s......O.lacL R. Hi 1 ton_________ _
Qcc:apli!UC>n ...... _. _______ .,._ ... __ .,. _________ ... _.._ ___,..__________ _... ___ ..._______ .,;:_____ ,..,.,.__.. __ _._...,...____... ..,...,____ _

----~*·-~------------------·
--~-~ J!::::: dl , _ _ _ _..,.

-------------·------
--------------·- ......
... ----- ...--- ...-------
-- _..,____________
___..,_________ .... _.,. ______ ---------
__,..,. .... ____ ..... ____ .,. ____ .,.. __ ..,, ... __....... ________ .. __ _
-----~--- .....
____ ..,._... ..,......... __ .. ______ ,.__ .....____
.._ ------...--... ___,...,.. ____..,__________________ _... _______.._.,.
---~---~--------~---~-------· ------ -----------------·-----~-~-~-- ------~~---
------·----- ----
_____ . ,._________ ...,___________ -·. .------- . . -...................... _. . ___.,.____ .... . . . . . . --..o:'... . . . . . --.. . . . _____
---------~--~------~---------

:
 725
• Between the age of 7 and 9 Gary traveled
with his mother and Step-father to the
following cities. He changed schools
approximately every three months.

• Atlanta, Tampa, Toledo, Louisville,

Cleveland, Cincinnati, back to Tampa
Nilo brings Gary a Dalmatian from

726
one of his trips. Nilo names it
Mohamed after his middle name.
Gary got very attached to the dog,
but Nilo later took it away and
never brought it back.
 727
• The traveling continued between the ages
of 9 and 11 . He continued to be pulled
from school in order to travel with his
parents.

• Tampa, Chicago, Miami, Hialeah, San

Francisco, and back to Hialeah
 728
·,

• Between Kindergarten and the 7th grade

Gary changed schools 17 times. At times
he was in a school less than a week.
729
 730
'

• His mother brings Gary back to Tampa

after' living in Toledo. Nilo remained in
Ohio. Gary was suffering from an ulcer
and was told to drink excessive amounts
of cream. He gained a lot of weight
during this time.

• The.ulcer went away when he was away

from Nilo and lived with his mother alone.
731
 732
• His mother has a miscarriage and Gary
was the only one with her. Nilo was away
traveling. Gary called the ambula'nce for
her. ,He was 10.

'
733
 734
• His teacher described him as very
nervous.
• Cleo described him at introverted.
0
c..
735
736
 737
• Gary was withdrawn yet again to travel to
Puerto Rico. He did not enroll in school
there, but his mother said she enrolled him
in correspondence school, but the
paperwork never got there so he did not
start it.
 738
• While in Puerto Rico Gary witnessed Nilo
getting severely beaten up by oth~r horse
trainers. Nilo had to be hospitalized and
was close to death.
-·
Sll
3
-·
739
 •
~-I
-· ::::r
Sll CD
3- · -h
Sl)
003
"'0 ==
::::::! • '<
::::J ~
CCCD
en
c....~
c
.~ en
::::J
Ir-+
-· 0
cc
.::::r"'Tl
-0
-·
c..
Sl)
•

I
CD
CD
::::J
~

0
-en
-
-·

740
~
CJ)

0
-
a.
741
 742
1961
• His mother and Nilo separate. One of approximately 7 times.
• Cleo and Gary move into a one bedroom apartment/motel
• On 9/5/61 Nilo comes by to get his wife back
• Gary tells him to go away but Nilo refuses
• Gary had a borrowed rifle and tells Nilo to go away Nilo says shoot me
• Gary warms him again Nilo gets a mattress and puts it in front of himself
and tells Gary to shoot
• As Nilo advances t()ward Gary he shoots Nilo in the stomach
• Nilo suffers no long lasting effects and does not press charges
• Gary is taken into juvenile custody
• Cleo chooses Nilo over Gary so Gary goes into Foster Care at the Keller's
home
• Girlfriend Sandy Herman breaks up with him after shooting and the incident
covered in the paper
• Gary has a breakdown and goes into Jackson Memorial Psychiatric Unit
• He then moves into Margarite and Thomas Perchoux's home for 6 months
 743
Article in the Miami Herald
Boy Shoots
Step~Dad
At Hialt-11h
. iiy JOil:S t,'~OEftWOOD
W-14 :&;1•tr ..,.rf't"~
A 14•!;>£Ul'-t:>ld hoy M<JO.i oul-
'l:lde-- and :;Jh.ot hut Hl'pfathf'r

--
i:h~ •.11 opNI. h.t-1:~ dPM"
:Mi::Jnday M .a Hildcah pOt~
,ru,ft •tool! •t tht'" trent dNJf

- Tho- b!.i!l~L tro«l :11 borrow<•d

rit.l~. Jl~ throw;-h .f1 nw.~·
~ '{hoi'!' I'I'Ui.n "W/120 hctid:il'l;l: :ll-!!d
•t:tu.:ok hlm in the Montt~ch.
-t'h6 l:dd't IU<.'kY b.,.. nut
dl\&d." u.m h-tt--nUrl- bq.n
LU1:&ro.L "\'\i'bl:'.n I ~ IJt, M
..Wl tuad th,.. ,.un poltl ~- l"
~t.Khotlttm."

'Lillard Win tlwno: by wildest

"'"""'·
.u~ -E'arn~ it;> thf' doer- ~)!
A_,pat1;,1ltt>nt 4, ~SE -7th Av..:o,
liin~:tto.h, bf'~.~t~u:r;e "' !!t!':!t10n
urngon bot-lon~ing to- 41·:>-~ar~
old NUo l)nbJJ.Jt hM 1-(,!Hed lilt
ih~ f-4U'"klng lint.. (Into t.he
»venue.,
li:n•._UCJS-t.:tn Jloald 01.\ba~.
Ulf): ift<ept~r. WO..\- thr~. t£>
t~ bill 'idtle. Cleo. and ht'r
.on,. Gllor)". tg. ll>o tr.t!'W b~ he
bwf ft!lht~. HATrn.d for s.e\111~
~ the D'Ab:ap. bt&d ~n
IM'pti..Tt~tNI tf\b laM: h1.·~:~ M.tonthto
-"ihd \'i..:'h'< trytng· ro dfe<.."t a
'J:'~Jh:~;Uuth

"'D.ltw$. 1o th~ I!'NIE'rt\"n~~

~lrt c( Hla.tH>h Hcu;plt~:~l., \vith
,. _2,;'1 .t<a.!;'hM" !iiUE irt hili l;loro-
e.cll, c!niJnEtd lt V.JM> •·an afl-
cidetrl.-" He wmt~-d mak~ no
t~t·th<:l:r C<J.mmotnt ~f()-r.e tM!iMg
"'tH~\"'d lht.o s.urg-ecy.
Pnlice- Mid th..- MY ht&d o.'>b"
1cerM toll t.ht- 1"ee''t'ICI1itl Ho!':
with hi.o. t:h~l•fnlhff- \\"hat Pf<>·
t'li'ntated thn s.t!O<iHng tho"}
"'""~"' ....... "'""'
 744
After Shooting Incident
'

• The male Attorney he was appointed to

made sexual passes at him, and pays him
for sex.
Gary playing drums, Harry on the

745
guitar at Harry's home 1962
"The Fabulous Yellow Jackets"
Thomas and Margarite Perchoux

746
Gary lived with them about
6 months
 747
• After leaving the Perchoux family Hilton
returns to live with his mother when she
leaves Nilo once again.
 748
Ga aught
s
 749
1963
• Gary quits school with his mother's
consent and joins a local band
.,
750
 751
1964
• At the age of 17 his mother signs a waiver
in order for Gary to enlist in the Army
• While in the Army Gary earns his GED.

-,
752
 753
• Gary went to see Sandy Herman to tell her
he was leaving for the Army
• He told her he had been prostituting
himself to an older man for money and he
did not want to do this any money, so he
was leaving for the Military
754
-
.....L.
<0
(j)

755
756
757
758
759
-
-·

760
 761
\

• Gary was sent to

Germany
• He was assigned
to the Davie
Crocket Division.
They would
transport Nuclear
Bombs on trucks.
762
 763
Gary ation
f
JJG)
. :..........

764
765
766
767
768
769
770
Gary with Harry Keller and Harry's

771
wife Peggy, 1966
 772
Gary with Harry's wife Peggy
773
774
775
776
 777
.1967

• Gary spends 4 1h weeks in US Army

Medical Center Psychiatric Hospital
'

• Gary is honorably discharged from the

'
Army
• Returns to live behind his mother and Nilo
in an apartment with Ursula
 778
Gary attended Miami Dade 9ollege
from 1/69 - 4/70
'
He. obtained is AA in Pilot/Flight
; Engineer
His Grade point average was 3.25
(B average)
 779
1971
• Ursula Gras Hilton Divorces Gary
December 9, 1971
 780
1N THE CU\CUtr OOURT OF THE 11TH
JJJDIClAL CutCUIT IN AND Jl'OR f)I.TJE
COUNl'Y. t'L01UDA

NO, 1l ~11247 f CuUt-n l

fl; "'"l;zq
IN tu-;, "Thi!" Mari-laR.,. of

GARY M. HILTON, bu!band, FINAL JUDGMENT 01"'

DISSOLVT!ON OF MARIUACF.-
and URSULfl G. HILTON, wife·,

Tli!S CAUSE·c:a~t~e on before lhe- Collrt on thO PotUJon tor- Di&aollrtlon of

M.a.rrJ~c !:!led Mr-ciJ'b and the C.:,urt h~tv1ng heal'd the teuUrrton)l of fbe partbll' and,

tM- wUncee:, ·tll!d haV4Jg ~uily coJ(sider~d·the m!ltler~ n:$1ndll" ttlat thlD Col.Ll't btu!l jur~ ..

d.!cdon of the av.bjeet maltel"" het-eaf and ol the· pa:rtteiJ hereto ando ac:coN:IIngly~ ~t ta:

CONSIDBijED, onDERED AND ADJODOED:

1, That the ma.rrJqge of the pe.rtie!J hall been ll'f'CH•ievably ~oken,

2, That tlw!- banda of m.ntrhrton.Y -'lOW llJid heretofore existing between

the po.J'Iica be·:and the same IU"I! .lu~reby diaB"olved forever.

3. . T~ jurtsdJc:t~~tet""h"reoCand
the p!lrtt~<:s hereto. /lttUf "
4, The Court hcoraby rnUrlee and appr-oves tile J'r(lperiy8ettlemunt
I
Agr(!am~nt entered !ntto·between the p.lll"'.fes and tiJe Property wUl be distributed 1.n

accordance wUttsaid P opetiy Settlement Agreement.

f;RlW b! Cluornbers at Miaml. Dade County* FlOrida. tb!.a

d-··-T""
DONE AND 0

STAT.EOF
 781
1971
• Gary begins a relationship with Paulette
Goldman
• Paulette introduces Gary to Quaaludes
'

• Gary tells Paulette that he had sexual

relationship with his mother.
 782
10/09/1971
• Willi?m Hilton-Gary's Father was shot and
killed by his wife Edna Carter Hilton after
25 years of marriage in Lexington, Ky.
 783
1972
• Nilo Debag was
arrested by the US
Marshall for
Conspiracy to Commit
Mail Fraud and Wire
Fraud
• Nilo was connected to
the mafia
 784
KDJ.D FOR MAGISTRATE'S HEA~iNG- DO NO.!_?OND OUT {«mm~r., wt!tn., &id<'tCf.,..,lif.,<Zfltfpfn;l( copf..:;{urfl<ldilfohoJ wlrrl11~
WiTNESSES AGAINST DEFENDANT: ,..,_'

TnWponlng Officers: _ _ _ _ _ _ _ _ _ _ _ _ __
The un.dersign~td c,:,nifics and $Wears that he has just and roasonablt: grounds to believe, and does beUeve that:
On the day t>f _ _ _ _ _ _ _ _ _ __

{L.u~Na;m") (F"intNam~}

o::nnmitted rM following violatitm ofluw;

~rntlve:(Be~peeilk)-----------------------------------~-------------~
 785
' . :.;:.~
FI~Sr
.. ~~- :·-;-·,:,-
f•lAMt
...
 786
. HEREBY AUTHORIZE THE SHEIII~f, HIS JAilER, QR DEPUTIES TO
•t.A.I'!!.l
.
INSPECT ALl MA!L MA ITER OR
'
BE
'!)JI~EQ;ED TO ME AS !ONC AS l AM

fOR

CASE OF EMEJIGENCY NOTIFY !MR.) (MRS.)

CHARGES AND DETAINERS PlACED

 787
1972
• Breaks off relationship with Paulette
 788
1973
• Moved Atlanta
• Began working in the telemarketing field
 789
1976
• Met Dina Evonne Baugh
• She went to apply for Telemarketing Job
and met Gary
• She moved in with him immediately
• She had a son from a previous marriage
 790
• Gary encouraged her to get her Realtor
License
• Gary accompanies Evonne to get her
Diploma from the Realtor's Office when a
woman passes out in the lobby. Without
hesitation Gary started CPR on the
woman.
 791
1977
• Gary marries Dina Evonne Baugh after
living with her for a year
• It was his idea to marry
• He became the homeroom dad of
Cameron's class
• Gary was drinking beer all day everyday
• Gary was a functioning alcoholic
 792
Evonne and Gary marry on
August24, 1977
Jflflarria_gc <llcrtificatc
~tat.e .of ~.e.orgia

GARY MICHAEL HILTON

DINA EVONNE BAUGH fuere lutiteb in

JACK B. SMITH, JUDGE

AUGUST 1977

in f~e QJ:ifll nfDllCATUR QJ:nunfg nf DEKALB

(li!)enrgia_ ,...!/> appears nf recnro in ntl;! nffice in ~arriage

~e.corb ~onh Jage oo2
bau of
 793
1977 cont.
• Gary started a small company called Green
Light Advertising
• Gary'on his own goes to a Doctor to get help for
his Alcohol problem
• Dr. gives him Antabuse {Disulfiram), Disulfiram
is used to treat chronic alcoholism. It causes
unpleasant effects when even small amounts of
alcohol are consumed.
• Evonne said Gary always wanted to get well, he
would have visions of doing good things in the
future
 794
1978
• Divorces Evonne Baugh
• Their marriage lasted 6 months
• Gary cried when he signed divorce papers
• Gary continued to live with Evonne after the
divorce for 4 months until he found a place to
stay
• Evonne has kept the Hilton last name to this day
• Evonne thought that Gary was very charismatic
and very good looking
• Gary quits drinking alcohol until 1985
 795
January 1979
• Paulette Goldman came to see him in
Atlanta
• They had not seen each other in 6 years.
 796
• Gary marries Sue in
1979,'
• Gary with Sue and
Step-son Michael
 797
~Jlf(arriag.e QI.ertifi.cat.e
%tat.e .of <Mi.e.nrgia

'<lrlyis QI.ertifies tlyat GARY MICHAEL HILTON

arm BETTY SUE EDWARDS GALLOWAY fuere uniteb in

JACK B. SMITH, JUDGE

MARCH 3.979

in tlye <!!t±g nfDECATUR <1r.ou~ .of DEKALB

®e.oryia~ ~s appears .of rer.orb in~ offire in Jllllnrriaye
~r.orb ~.o.olt o46 :Jage o16

bngnf
 798
Gary and Sue buy a house using
his VA loan.
3;113;2: Ho~ll oo;d1 D!r,.
799
800
801
 802
Gary and Michael
 803
1979
• Sue and Gary divorce after 7 months of
•
marnage
 !

804
1980
• Gary begins his long
friendship with Shawn
Stewart
805
 806
1982
• Gary's Uncle takes him to Pinnacle
Mountains State Park and makes sexual
passes at him.
807
808
809
810
811
812
813
814
 815
1985
!

• Gary began Drinking again until 1989.

!
816
 817
1986
'
• Started doing LSD, Marijuana plus other
drugs, including alcohol almost everyday
till 1988.
• His mother would not come visit him
during the years when he was on drugs.

'
818
 819
1989
• Gary stops drinking alcohol for good
)
820
821
 822
1991
• Gary gets his first
Labrador Retriever
• He names him
Ranger.
'

• Ranger lived until

2002.

'
823
824
825
826
827
828
829
830
831
832
833
834
835
836
837
838
 839
1997-2007
• Gary 'WOrked for John . .
Tabor from 1997-
2007.
• The company was
Insulated Wall
Systems
• Gary would find leads
for Tabor in order for
him tb install vinyl
siding.
''
 840
Gary moved into 4169 Clermont
, Rd, Chamblee in 1997
841
842
843
 844
2002
• His dog Ranger died.
'
• Gary became obsessed with the obituary
pages. He found comfort in reading about
other people who had lost a loved one.
• He became very depressed and suicidal.
.......
...............
.......
1\)
i\)
0
0
w

845
 846
Gary with Dandy as a puppy 2003
G)
Q)
~

'< ,_

-· '"

847
848
849
850
851
 852
2005
• Gary found Dr. Deicher an Endocrinologist in
the yellow pages

• Dr. Deicher prescribe ary Ritalin, Terazosin,

and Flonase, Folic Acid, and Vitamin 812
injections
• Dr. Deicher later diagnoses Gary with a form of
Multiple Sclerosis.
1\)
0
0
0)

853
 Gary would use Cambridge

854
Laundromat until 2007
it is owned by two Korean sisters
 855
2007
• Gary quits Insulated Wall Systems.
• Gary begins to live in the forests.
• Gary visits Shawn to ask for money, she
found him very different, she did not
recognize him, he said he was very sick
 856
2008
• Gary gets arrested in Georgia on 1/5/08

'
 857
Ritalin found on Gary
at the time of arrest
 Photo taken in 2008

858
still showing the scar from the
M1u ·... •h1 · B~edl i'n1c:ide~n1t'
859
 860
Cleo i1sited
her
'
as
we a, had
lost 0.
 862
~

• Cleo Hilton Dabag passed away on April

5, 2010 in Charleston, South Carolina from
breast cancer.

··,
 DEFENDANT'S
EXHIBIT
=-'---\
# _ _L_- - -

863
MITIGATION WITNESSES Date la- '6,
_:l..,CD- \

(or Case Name G ~~L:\o,L

GARY MICHAEL HILTON
Case No. -~~-1,~!
Updated 12/17/10

Good Witness Name Address Phone Contact Notes

Very damaging Carey Kelly 2267 (770) 529- 12/2/2009 Date Hilton right after her high school
(Ex- Capehart 0903 days, Shawn Stewart introduced them.
girlfriend) Circle (404) 433- They used pot and Quaaludes. She came
Atlanta, GA 9838 by his house saw him with a man and he
looked evil. She says he had mood
swings not mentally ill. He became very
possessive, when she broke up with him
he came to the house put gasoline
around the house and car port with
people inside the house. He was charged
with arson but the case was later
dismiss,ed.
Not available William D's father/ wife killed him 10/71//
Hilton

1
 864
Not enough Pam 79 N Hill Dr. (601) 590 12/7/2009 Brief encounters while Hilton lived with
info. Johnson W#79 0537 son found him weird not mentally ill. He
Carriere, MS (601) 799- was very reclusive.
39426 2499
(601) 590-
0537
Has no info. William (404) 848- 12/8/2009 Has no personal memory of Client
4900

Not good Elizabeth 1957 Dresden (404) 634- 12/5/2009 Say Hilton pushing dog into van tried to
Brent Dr. NE 0831 stop him became overly angry. They
Atlanta, GA called the police and Hilton was charged
with animal cruelty. Case later
dismissed

2
865
 866
Daisy Gil E.D. (305) 261- 4/2/2009
2848

(706) 332- 4/112009

2679

4
 867
Horrible Olin D. 1297 Turkey (321) 728- 4/17/2008 Refuses to be a part of the D's life, very
Hilton Creek Dr. NE 7976 angry
(brother Palm Bay, Fl
different 32905

5
 868
Not needed Sonia Okun 150 E. 18th (212) 254- 817/2008 Sister to Paulette Goodman ex girlfriend
St. 6R 0506 of Hilton. No info
NY, NY (212)
10003 2546038
Not needed Clyde 2441 (407) 302- 6/18/2009 Has no memory of Hilton
Nothie Poinsetta, 3403
Avenue (321) 377-
Sanford, FL 1914
32771

Leonard 2355 NE 935- 6/1/2009 Went to school with Hilton from Middle

6
 869
info. But maybe Scalfani 191st Street 3466 school to High school. He said he hung
ok Miami, Fl around with Gary for 2-3 years.
33180 He considered Gary an antisocial kind
of a guy. He said that no one liked him
in school. He said he was a loaner. He
would stay by himself and did not get
involved. He said he made friends with
him because he was easy going. Gary
was not liked because he would say
weird to shock
Not available Richard 15490 NW Dr. Emerson was the only Psychiatrist at
Deseased Emerson 7th Avenue 6/19/2009 the clinic. He told her that he has been
Psychiatrist Miami,FL deceased for many years. I checked on
33169 Dr. Emerson and he died on
7/27/93 ... this is the psychiatrist that
called him a social at 15.
Not good Mandy Precision (770) 536- 7/112009 No info.
Paterson Hair Cutters 6881
Not good Scott Precision (770) 526- 7/112009 No Info.
Gooch Hair Salon 6881
Not available Fulton Fulton Co. 8/5/2009 D worked for him in 1968. Fulton died
Greenburg Exterminatio 4/1112000. Dead
n
Not Available Newman Miami, 8/5/2009 Former friend of the D and used on as a
Higbee Florida reference in the Miami Dade College
He died on 10/15/1992

7
 870
No info Alvin Elkes 1160 N. Old (386) 674- 4/15/2009 Co- worker at Miami Dade College
Mill Drive 9579 not remember Hilton
Some important Andre (954) 226- 8/29/2008 He said that his mother told him that
info. But Suleiman 3464 Hilton was abused by his mother. He
limited (Son of said that Hilton's mother had sexual
Paulette relationships with him. He said his
Goldman) mother told him that Hilton would
throw food at Ursula. He said that
Ursula was his mother's friend but he
does not know where she is. They lost
track of her many years ago.

Only one Christa 13429 Hwy (601) 766- 4/112009 She said she went to visit her sister in
contact with Sparks 613 1780 Miami and while visiting her, Ursula
Hilton Limited (Sister of Lucedale, MS asked her if she wanted to go see Gary.
info. first wife, 39452 She went with her and he lived in a
Ursula room with no furniture. He was sitting
Hilton) on the floor and he had long hair. He
looked unkempt. He acted weird. He
would speak but his words were not
clear.
:---hi:

8
 871
No way thinks Linda P.O. Box (770) 490- 6/23/2009 She met Hilton at Blackburn Park in
she was next in Schaefer 1346 0077 Atlanta. She lived around the park area
line Ada, OK for 5 years. Hilton would come to the
park everyday to walk his dog. She now
thinks he clearly wanted to kill her. He
would want her to walk with him to
secluded areas of the rk.

9
872
873
 874
Only good if the Clay Atlanta, GA (770) 507- 7/1/2009 He said the story of Hilton hitting one of
SA calls brother Roselle 7150 his brothers with a brush was his
to say he hit brother's story. He says Hilton never
him when touched him. He is not aware if he hit
young anyone else.

To much Kelly Dawson (706) 216- 6/26/2009 He had no psychiatric problems on the surface.
negative stuff/ Bennett County Jail 6446 He was not disabled in appearance. He did not
have quick speech. He was not speaking
not enough (Nurse for
bizarre. He told her he had MS. He was taking
positive Dr. Kulish) numerous medications. He wanted his
medication to be started immediately. After
the plea the FBI came to see him and he told
them that if a life sentence was too much he
would kill himself. The FBI then told her to
check him out to see if he was suicidal. She did
not find him to be. She said he thought
everything out before doing it. He told her that
he was in control and they were not. He told
her that he was smarter than they were. He
told her he was suicidal at that moment. He
was the first person she had seen that would
say he did something like that and showed no
remorse. He had a list of reason why he did it.
He told her he was old, had MS, to sick to take
care of self, couldn't work, could not afford
medicines, he had no where to live, prison was
a sure thin!!; and he could 1/;et meds.
Very Unstable Robyn 4083 Red (770) 972- 10/30/2008 Thinks the D worked at her house, she is odd but
and provides me with information that she finds. No
witness has her Mckinney Laurel Way 2576 first hand knowledge. Wrote to Hilton and he
QWn agenda. Snellville, GA ongoing responded letter on file. He talked to her about
30039 Tabor.

12
875
 876
Not available Jay Martin- Georgia 6/19/2009 He is deceased he was the probation
Dead Vegue officer when he shot his step-father
(Probation
Officer
after
shooting of
step-father)
Limited Info. Jason 841 The (770) 318- 6/24/2009 He never thought he had a mental
Preste Circle 6062 illness. He did do a lot of pot. He said
Lawrencevill he Jived with his mother Connie
e,GA Wagoner for about a year. He did not
see any abusive behavior.
Horrible Glen (706) 265- 6/26/2009 Follower of serial killers. No first hand
Adams 9983 information.
"wolfscratc
h"
Limited info. Gay City Hall (706) 635- 6/23/2009 A man resembling Hilton came in and
Crescenti Ellijay, GA 4711 asked about Kusawatti Resort.
(706) 276-
3111
Limited info Debbie 4040 Candler (404) 406- 6/25/2009 She said she was deathly afraid of
Woolf Park 5088 Hilton. She said he was weird and his
Dundwoody, eye had a strange expression. He spoke
GA very loud.
Limited Info Diane Pike (770) 451- 6/25/2009 She is friends with Karen Whitehead. They
3193 were walking in the park when they heard a
dog in pain. They saw Hilton in a crouched
position next to his dog. He told them there

14
 877
was a pack of wild dogs and he was afraid they
would hurt his
Limited Info Debbie 2277Mundy (770) 452- 6/23/2009 He was an unusual person. He was very
Golden Drive 7372 withdrawn.
Chamblee,
GA
---+

15
 878
No info. Richard Dir. of Boys/ 4/24/2009 He says that he does not remember the
Someillan Girls Club in D and will not

16
 879
Limited info Joe Pulizzo jpulizzo@md 4/23/2009
c.edu
1850 W Nancy
Creek Dr NE,
Atlanta, Ga
30341-1453(

17
 880
Limited info on Ron Miller 4706 (770) 394- 6/24/2009 He also thought of Hilton as crazy not
mental health Equestrian 2549 dangerous. He did not see him
Way functioning normal. He said the way he
dressed and his actions were not normal.
He thought Hilton was in his own
universe.

Not good Sheree 4347 (770) 454- 6/24/2009 Says that the D spoke to her about
Rosende Burtford 6513 training dogs. She met him while they
Circle were in Murphy Candler Park. Felt
Atlanta, GA stalked ~him.
Not good was Sallie 1870 (404) 307- 4/25/2009 She say him instigate fights. He hid in
afraid of him Samuel D'youville 0360 his van where people normally did not
Atlanta, GA (770) 454- park
8021
Little info on Graham 4210 Pointer (678) 617- 6/24/2009 Thought it was odd that the D said that
mental health Hansen Ct. 7343 he was only there for that day, but he
prior to Oakwood, had enough camping equipment to last
Meredith death GA for two weeks. Thought the D was off
but not paranoid. He had scattered
speech.
Not good Kay 4184 Brawley (770) 455- 4/25/2009 She began to avoid the park because of
Dame row Dr.NE 7062 him. He yelled at her for having her dog
Atlanta GA (770) 827- off of a leash. He was never nice and
6714 always agitated. She assumed that he

18
 881
was mentally ill.

Not enough info Kim 4202 Candler 6/24/2009 Says that she and he mother parked
very negative McGray Lake West beside him at the park. He was fussing
Atlanta, GA at them because there were other
parking spaces. Another time, she says
that he was very harsh with his dog.
Hilton mean and very military.
Saw him after June Novak 557 College (404) 375- 6/23/2009 Says the
the NC murders Hill Drive 4515 D asked for a ride to a bigger town so
gave him a ride Hiawasee, that he could use his credit card. She
GA says that he was very demanding. She
gave D a ride to Helen.
Possible but Diane 3681 Cold (770) 220- 4/26/2009 A friend introduced Gary to her. She
might to Clohessy Spring Lane 0755 said that he always made comments
dangerous Chamblee, about women. After seeing him on the
GA news, she witnessed him cleaning and
vacuuming the van. She called the
police. She thought he suffered from
extreme isolation. Tried to engage
people in inappropriate ways. He would
test your level of fear.
SA might call Clinton 4333 Snoopy (850) 513- 4/30/2009 His mother was a friend of the D when
him since he is Rosselle Lane 3734 he was 8-9 years old. The D sometimes
inFlorida his Tallahassee, babysat for his mother. Mother stopped
brother says no FL contacting him after the D was caught
to beating spanking her son. Thought Hilton was
shifty.

19
 882
Limited info Josh 2929 Lake (678) 936- 6/24/2009 Met the D a day before Meredith went
Hanson Hallow Road 2234 missing. Concerned about who may be
Gainesville, on the trail behind him. He took off very
GA fast into the woods. He had knowledge
of woods. According to witness Hilton
looked like he had a screw loose.
Limited info AI McEver 4640 (404) 434- 6/25/2009 He says D always had a night stick,
Chamblee 5486 water bottles and a knife. D would
Dunwoody become upset if a dog was off the leash
Road in the park.
Limited info Larry (770) 963- 6/29/2009 Never met D personally. He said he
Grover 3641 spoke to him about 6 times in the late
90's. Larry answered an ad for siding
and Hilton answered the phone.
No info Melinda 1290 B. (770) 536- 6/23/2009 She says that she was not the one to cut
Howington Thompson 6881 D's hair. Her information was
Bridge Road secondhand.
Gainesville,
Ga
Limited info Nile Jones 3179 (770) 451- 6/25/2009 Says he saw the D many times in the
Laventure 6332 12/6/10 park with a martial arts baton with him.
Drive He always had his backpack, also.
Chamblee, Thought he was not 100% there ..... He
GA was egotistical. He never mentioned
women at all. He never spoke to
himself. He spoke to him about 6 times.

20
 883
He said the last time he saw him was 3
month before he was arrested. He was
always the same there were no changes
in his demeanor during the time he
knew him.

Not good hung Tim (404) 256- 6/24/2009 D's concern about him being in a shed at
up on me Mitchell 1240 Murphy Candler park.
(678) 499-
0301
Not good at all Timothy 5233 (404) 897- 6/26/2009 Says the D screamed at him and Dee
Williams Kimblewick 3034 Jordan about their kids messing up the
Cove park. Also says that the D began to
Dunwoody, advance towards Dee. Police were called,
GA but D left before they arrived.
Not good/ no Larry 2277 Mundy (706) 273 6/23/2009 Claims to have seen Hilton in his town
info//Police Callahan Drive 4054 but did not return my call on 6/23/09
Chief of Chamblee,
police GA

Limited info Barbara Post Office (706) 889- 6/23/2009 She says when D came in he had wild
Ostrowski 300 Cherry 1933 eyes and asked for a Liberty stamp. He
Log did not say anything weird. She worked
Cherry Log, at post office.
GA
Limited info Bryan (770) 712- 6/26/2009 He says that he did not see D's face at
Sin~leton 8779 camp~round. He is unsure if the van

21
 884
belonged to D.
No info on Mary 2371 5/28/2009 Mary was a friend of Cleo who lost
Hilton only his Kayler Highway72E touch after Cleo sold her house and
mother Not Abberville, moved away. Said that she was a great
enough sc 29620 person.
Russ 205 Mayfield (770 932 Left note on door on 10/30/08 did not
Morton Farm Dr. 9992 respond, have not been able to locate
Boss- Lawrencevill Lives in Oregon or Washington state
perfection eGa
roofing and
siding
No info Monique (770) 457 Phone disconnected/ dealt with him at
Lund 7270 Murphy park. Spoke to husband instead
Not enough info Lee Olwine 4174 Regency (770) 986 8/25/10 Strangely dressed and would jump out
Park Ct. 8872 of the woods. Creepy
Atlanta
Nancy (678) 421 Unable to reach
Clark 6680
Katrina (404) 312 Left the country for a while responded
Guettler 1247 on 7/1/09 still not spoken to her
Eddie and There whereabouts are unknown
Earl
Wheeler
Cousins
Lucille Eberton, Ga? Whereabouts are unknown
Well
Kindergart
en teacher

22
 885
Walter 3780 Glen (770) 972 Have gone to his house 2 times while I
Goddard Ian Dr. 2001 (770) was in Atl4/25/09 10/30/08
972 1653 Dec. 2009

Dina Not located/Wife married August 24,

Evonne 1977, Son Cameron Baugh
Baugh
(Diana
Baugh)
X-wife
Karen (770)451 Was on vacation unable to reach
Whitehead 1107

No info LanceR 5757 882 Chris to him on 6/29/09

23
 886
Stewart St. 1527 Does not remember him.
Davy Galway, NY
Crockey 12074
Platoon
leader

Possible but Harry 67 Lula Cove 828 483 6/9/09 They were the foster parents after the
could be Clyde Rd 4442 father shooting. They took him in
dangerous Keller Sr. North because it was the only way he would
and Harry Carolina come out of detention. Problem is that
Keller II 28787 Hilton threaten his wife/mother and she
called the probation officer to come get
him. Jr. saw him while Hilton worked at
Miami Dade Comm College and was

Dr. Kulish
Awful Pastor River of Life 850 926 He was Dunlap's pastor. He will not
Henry Crawfordvill 1200 assist us wants the death penalty for
Jones e Hilton.

Possible only Capt. Ryan Lumpkin 8/25/10 He was in the room when Hilton spoke
for Scott Jail to the Dr. Hilton smelled like sulfur.

24
 887
effect Hilton cocky and arrogant, and
everything else intelligent.
not

Limited info Chris 2277Mundy 770 452 6/23/09 Hilton told him he had to put a man
Golden Drive 7372 down in Stone Mountain. He would
Chamblee, repair Hilton's van. One time it smelled
Ga like had died in it.
Timmy Not located
Odom
Cousin
Terry Not located
Odom
cousin

Steve Odom Not located

cousin
Aland Tampa, Avon AI would frighten Hilton with alligator
Ellen Street -unable to locate with brief
Last name information

25
 888
unknown
No information Internet buff Unable to locate
Code name
Tazebell 276 988 Wrote to me on 10/20/09 /does not know
4791 Hilton but

Possibly good Barbara Casey and 770 454 12/3/09 Worked next door would print flyers
has some Speed Assoc. 1000 for Hilton. Ordered the baton through
background Realtors the internet for him. Hilton was very
info. 4175 angry when Tabor fired him. Hilton
Clairmont was very protective of his surroundings.
Rd He told her that he was close to dying.
Atlanta She said that Tabor would stand by the
window naked when the women who
worked in the office would go get their
cars. She saw Tabor being very rude to

26
 889
,, ,. , . -Y<(i'-,

, ,; ''
. '

Not available Claude Grandfather Deceased

R, .1..1.

Need to be Karen 317 709 6/25/09 Spoke to her she does not want to speak
deposed Bareford 3203 to me without checking me out with the
SA says she saw Hilton night before
murder in Atlanta. She was with her
._ .....,
·'
uu.ruu:ouu
Not available Robert Dept. chair 8/5/09 Hilton worked for him in 1971. But this
Hilbert Miami Dade witness died on 10/22/93
Jr. C'niiPoP
Not available Nilo Dabag Deceased Had federal arrest for being in Mafia
L'4. .J.'•. 4.L

Not available William Unable to locate

OdomJr
Cousin
Not Available Ursula 7416 Rolling Died 12/19/2001 of Cancer according to
Taylor- Bend Ct her husband
Hilton Columbus,
1st wife GA
Not available Willie Lee Died march 1, 1968 was in the same
Richardson Army unit- died in Vietnam
Not Available Michael Died Oct 3, 1967 three days after being
Dennis D sent to Vietnam, was in Hilton's Army
Aiello Unit

27
 890
Not enough Jason Shyr 4163 678 358 1111/08 Jason owns the property next to Tabor.
info. Clairmont 5438 He saw Hilton carrying a gun in his
Chamblee, pants. Says Hilton carried a silver
Ga retractable baton. Would not give
specifics on why he thought Hilton was
weird.

No information Debbie 910 916 No personal knowledge of Hilton

Gratton 0998

Detailed info on Samuel C Pending

Hilton during Rae I
the 80's
To dangerous Dr. Angela 3839 770 457 6/24/09 She witnessed Hilton disciplining the
Ford Peachstreet 2591 dog very harshly. She got concerned
Amann 404 510 when he told her he was not afraid of
V eterinaria 0524 hitting a woman. Told staff not to
n schedule him any more. Always agitated
and angry

To dangerous Laura Woodstock 770 926 6/24/09 She sold Dandy to Hilton. He was very odd
Johnson Ga 8618 would bring her pictures of Dandy constantly.
He had excessive photos of the dog. One day
Johnsongrad
came to her home and took her dog out for a
e2@Yahoo.co walk without permission. She was concerned
m about him and told her daughters not to
answer the door.
Limited info Fred 7635 Nesbit 770 350 12/5/09 Hilton called the police on someone who

28
 891
Johnson Ferry Rd. 0003 was stealing from the shop. The man
Atlanta 770 457 was arrested but later Fred dropped the
3134 <'h<ora'"" and Hilton was
Possible but Chris 79 NHill Dr. (601) 590 12/8/08 Hilton lived with him. Hilton would
might be Johnson W#79 0537 laugh constantly during conversations.
negative Carriere, MS (601) 799- Would drink a lot of coffee. Hilton got
39426 2499 into an argument with Jeff Hebert
another roommate and was arrested for
battery. Hilton did not like his mother.
killed his uvlo'i."'·

Not enough info Johnnie Stone 404 296 11/30/10

Pickens Mountain, 0193 telemarketer. She figured out that it
Ga 800 407 was a scam and quit. She went out with
Jamakerjam 6248 her husband and Hilton to a lake. He
1@aol.com had a good personality and laughed a
lot. Did not think he was crazy. 1983-
84
Not good John 10255 678 497 11/30/10 Worked with him for a week as a
Jaudon Rillridge Ct 7001 telemarketer for Baptist Christian
Alpharetta, 770 936 Children's home. A Charity that Hilton
Ga 1345 made up. When he figured that it was a
scam he quit. Did not think Hilton was
crazy, but intelligent to figure out how
to scam Around 1986.

29
 892
Horrible Jorrn 3351 (770)558- 11/20/10
Brunnhoeff Raymond Dr 2086
er Atlanta, GA

Not good Diane 4093 Robin 11/20/10 No memory of Hilton

Middlebroo circle
ks Union City,
GA30291

Not good Belinda 1946 Hooper (404)286- 11/21110 No memory of Hilton.

Bentley St. 7535
Decatur, GA

Not Good Deana 1918 770 725 11/30/10 Has no memory of Hilton
Everett- Elizabeth St 4202
mitch Statham, Ga
Pending Durant Auto Doc 770)922- 11/17/10 Wants pictures sent to him to see if he
Godwin 1800 1134 knows him. He was not at home when I
Brandywine went there. Called back.
CtSE
Conyers, GA
30013
Rockdale
County
(770)922-
1134

30
 893
Not good Bob 385 0474 (770)381- 11/20/10 Did not recognize Hilton
Cunneen 5659 Fern 0474
CreekDrSW
Liburn, GA

Not good Ricky 71 Herbert (770)963- 11/19/10 Does not remember Hilton
McDaniel Hayes Dr 1547
Lawrencevill
e,GA

Not good Dana 1150 (770)844- 11/18/10 Does not remember Hilton
Johnson Rosewood 6171
(Cooper) Dr,
Alpharetta,
GA 30005
Not good Pam 557 Telfair 11/19/10 Does not remember Hilton
Hargrove Ct
(Baker) Suwannee,
GA
Not good George 2048 Nichols (404)284- 11/20/10 Does not remember Hilton
Harris Ln 7831
Decatur GA

31
 894
30032
Not good Jim Russell 5741 (770)888- 11/18/10 Does not remember Hilton
Kendrick Ln, 6265
Cummings,
GA30041
Not good Sue Willis 2070 (678)240- 11/18/10 Does not remember Hilton
Countryridge 0104
Rd,
Alpharetta,
GA30004

Mark and 1541 (770)267- 11/19/10

Susan Tipperary 2570
Wagner Cir, (770)267-
GA 2587
Not good Suzanne 285 Deer (706)468- 11/18/10 Does not remember Hilton
Stephens Chase Ct, 2553
Monticello,
GA31064
Not good Terry Britt 1471 South (770)978- 11/19/10 Has no memory of Hilton
Wind Ct 9635
Loganville,
GA30052
John Cagle Dawson 11/18/10
Jail

32
 895
Too dangerous Bill Lawson 564 Highway 706 348 12/6/10 Bill saw Hilton on Blood Mountain on
255 6747 New Years Day 2008. He saw him
Cleveland, 706 244 coming out of the woods with his
Ga 4333 Golden Retriever. He appeared to be
scared or with fear. He was guilty of
something. He said he saw him
hunched over in the woods like he was
the bathroom.
Not enough Jeff 404 992 12/6/10 He said he did not have the attire for the
information Landers 5073 park. He would wear hiking outfits
with backpacks. He would not saw
hello or smile. He looked out of

33
 896
He said he never saw him speaking to
himself. He said that he was rude to his
dog.

Not good Jerry 554 Stanley 706 219 12/6/10 Jerry called the GBI about a man that
O'Dell NixRd 7606 looked like Hilton. He said that who
Cleveland, 706 878 they arrested was not the same person
Ga 4689 he saw.

Not good John 10255 770 936 11/30/10 He said Hilton was collecting money for
Joudon Rillridge Ct 1345 a charity called Baptist Christian
Alpharetta, 678 497 Children's Home. John would call the
Ga 7001 places and get the donations and Hilton
would go get the money. At first he
thought Hilton was legit but then it was
obvious that he was keeping the money.
John said he could not stomach preying
on people so he quit. Hilton would prey
on people's sympathies.
Not enough Johnnie jamakerjam1 800 407 11/30/10 She met Hilton through a mutual friend
information Pickens (tl),aol.com 6248 who told her that Hilton was hiring
404 296 telemarketers. She went to work for
0193 him but only stay for two or three
weeks. She said she figured out that
there was something wrong with what
he was doing. She worked with him in

34
 897
1983 or 84. Sbe would make calls for
bim for bis charities, and then was
asked to tbe from tbe
Not enough Joy Dittmer 770 312 12/6/10 Sbe is a nurse. Sbe never noticed any
information 4206 mental illness. He was just bizarre. He
never bad a confrontation with her. She
never called tbe police on him. He
never jumped out of the woods on her.

35
 898
Not enough Scott 1451 678 513 12/6/10 Scott was with his wife Karen hiking at
information Stansbury Greenwood 1712 Amicalola Park in late August when
Ct they ran into Hilton. Scott said the trail
Ga has 620 He said Hilton was

36
 899
30115 scoping his wife out.

Not enough Tim 3805 Drew 770 294 12/3/10 He said he looked like he had been
information Petraroi Campground 6279 camping for months. Tim said he
Rd passed Hilton on a cliff and he made
Cumming, sure he had the inside of the trail. He
Ga said that Hilton eyes looked stressed
770 294 6279 out. Something about him was not
normal. He looked like he was up to
something.
Not good MarkGady 404 918 12/6/10 He saw Hilton on 12/31/07 Hilton
3392 appeared stoic. He was not jittery. He
looked like an old frail man. Nothing
was out of the norm. He appeared to
have been in the trail for a while. He
seemed calm.

Not enough info Todd 706 769 12/6/10 Hilton looked very jovial and outward.
Hosley 7882 He was disheveled. He was eager to
chat. He was upbeat and had rapid
speech. He looked outgoing and did not
look frighten. 111107
Not enough info Gregg 404 292 12/6/10 . He thinks it was 2004 when they met.
Jordan 6004 The last time he saw him was a couple
of months before the end of2007. He
did not notice any changes in his
behavior during the years.
No enough info Jennifer 706 540 12/7/10 She said she thought that he was odd.

37
 900
Pressey 6002 He had a fly swatter attached to his
jacket.
Terrible Patricia 864 979 12/7/10 She met him at Murphy Candler Park.
Stoud 0027 He was very aggressive toward her. He
threatened to hit her dog if her dog
came near to his.
Terrible Meryl 770 457 . Hilton did not allow Dandy anywhere
Reaves 5282 near her dog. She saw him in the
parking lot of the park hitting his dog.
He was weird and creepy she said. She
avoided him all the time.

Randy 404 607 12/7/10 Randy and his wife Liz and their son
Portwood 4879 were hiking Blood Mountain on 1/1/08
404 353 the same day that Emerson went
8653 missing. Hilton did not have a speech
problem. He rambled and was very
authoritative.
Liz 404 281 12/8/10 Liz was hiking with her husband Randy
Portwood 6572 and their son on 1/1/08. Hilton started
404 353 rambling about getting stuck in the
8653 trails and the Union rescue people not
coming to get you. He said they were
too fat to hike up. He said once there
was a man with a broken femur which
they had trouble getting him off. She
asked him if he lived nearby but he did
not respond.

38
"'CD

901
 902
Not enough info Jason 1277 404 513 1217/10 Jason was at the Starbucks coffee across
Barlow Dunwoody 2849 from the Chevron Station when Hilton
lane was arrested (1/4/08) .. He approached
Atlanta Hilton and asked him what his dog's
name was. Hilton looked at him and
said his name is George. Jason already
knew the dog's name was Dandy. Hilton
then told him he better out of here.
Not enough info Mark 922 lester hill 706 897 1217/10 Mark saw Hilton on 111108 while hiking
Puckett Suches, ga 4125 Blood Mountain. He remembers Hilton
706 897 4125 carrying a big hunting knife and a
baton. Mark thought it was odd
because that is not what normal hikers
carry. His speech did not get his
attention, but what he wore did. He
looked down and out and needy.

Not good Skip 25Rocky 706 344 1217/10 Skip saw Hilton at the QT store in
Comeau Road 8163 January 2008. He said he was putting
Dawsonville in 11 gallons of gas when he observed
Hilton dumping things into the
dumpster. He said Hilton had
in a that looked like a

40
 903
basketball. It appeared heavy. He said
the van had NC plates on it. He said he
recognized him from the photos in the
news. He said Hilton looked decrepit
and old. He was hunched over. He also
had a girls cap on. He said he watched
him for about 10 minutes. He said he
also saw Hilton drinking out of the dogs
bowl after the dog drank. He said
Hilton was cleaning his van.

Not good Adam Link 50 Sosebee 917 334 12/7/10 Adam Link saw Hilton and Meredith on
Dr 7109 111/08 on Blood Mountain Hilton
Dahlonega, intentionally walked off the path when
Ga they were about to meet. He was not
friendly.

Not enough info Alexandria 8630 678 717 12/7/10 Alexandria was working at the Chevron
Grubb 9360 station the windows. Hilton

41
 904
Way 678 343 came by and asked her if he could get
Gainesville, 9225 some water for his dog inside the store.
Ga She said yes and he filled a jug, while
she took care of his dog. Hilton was
wearing a white cap. He was an old
guy. Soon afterward the police came
and arrested him. They also found his
stuff in the dumpster.

Not enough info Derrick 678 907 12/7/10 Derrick met Hilton when he was about
Nassar 5384 8-9 years old. Hilton worked doing
maintenance at the apartments where
they lived. He does not remember much
about him then. He said he was with his
mother years later when they saw him
hitch hiking. His mother stopped and
picked him up. He said Hilton told her
that he had a disease. He only spent
about an hour with him. His mother
has passed away.

Not enough info Dr. James 800 202 267 He said he met Hilton and Meredith on
Frazier lndependenc 3537 Blood Mountain on 1/1/08. He had no
eAveSW personal contact with Hilton
Washington
DC

42
 905
Not enough info Karen 770 451 1217/10 He was disheveled. He was also
Whitehead 1107 friendly. He had negative glances.
There were no fluctuations in his
speech. He did not look like he was
from the neighborhood.

No info Bobby 126 770 926 12/7/10 He saw Hilton on Blood Mountain on
Touhy Springwater 7376 12/29/07. Bobby was coming out of the
trace trail and found Hilton I the parking lot.
were next to each other.

43
 906
Ga Nothing he did caught his attention. He
770 926 7376 only said hi to him. He saw his picture
in the news and called the GBI.

Not enough info Merari 404 538 1217/10 Merari was working at the Chevron
Abe be 6214 Station when Hilton was arrested. He

44
 907
said he did not speak to him. He said he
did see him dump things into the
dumpster. He did not know what he was
throwing in. He said a customer called
the police and they came and got him.

45
908
909
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA

vs. CASE NO: 2008 CF 697

SPN: 197149
Gary M. Hilton,

Defendant
--------------~/
ORDER FINDING DEFENDANT COMPETENT

THIS CAUSE came before the Court upon the revtew of competency
evaluations conducted by Salvatore M. Blandino, Ph.D. on April 29, 2014, and
Brady Lee Hudson, Ph.D. on April 30, 2014. The Court finds that the defendant is
competent to proceed based upon these reports and the stipulations of both parties
as to the accuracy of these reports.
It is, therefore;
ORDERED AND ADJUDGED that the defendant is competent to proceed.
The Clerk of Court shall make the competency evaluations of Dr. Blandino and Dr.
Hudson part of the record in this case for further purposes. {- ~
DONE AND ORDERED at Tallahassee, Leon County, Florida this~G' day
of October, 2018.

J MES C. HANKINSON
IRCUIT JUDGE

Copies:
Georgia Cappleman, Assistant State Attorney
Robert A. Morris, Defense Counsel
s
910
 Mitigation Witness for Trial

Childhood

Thomas Perchoux - We can tape record him again because he can testifY that he
was in psychiatric care when young
Victorine Rowe-we have her statement(through me)
Cleo Dabag- (through me)

Teenage years

Roy Cave was in band with him, knows about foster care
Sandy Herman- girlfriend
Beverly Lehmann Hilton-hostile witness but she is his sister
Maria Castelli
Juan Castelli

Early Adulthood

Leroy Pruitt- was in military with him

Adult prior to 2005

Bob Priester- has information that uncle tried to molest him

Stephanie Duggan
Brenda Champagne

STATE'S
EXHIBIT # .....eci==-=---
Date 16\s\ \\1$
( \
Case Name <2:: \.hl_.~~
:i
Case No .•::2. c:a,~ cs:-~~I911
.,'I
:i
li
Adult prior to and 2005

Dr. Harry Delcher

John Tabor
Jennie Johnson- knows him for ten years saw the decline
Shawn Stewart
Ned Dwight Coleman
Pam Burnett- problem is she called police on him 2004
Ray Lung
Norm Collins
Officer Kim- we have him on tape (through me)
(Laundromat ladies- pending)
Dr. Bateman -vet

Adult during 2007

Maria Linarte- nurse next door to Clairmont address thought he was mentally ill
Chad Smallwood
Justin Wight
Karen Stansbury
Scott Gill
Mildred Stevens
Shaun Faukner

After Dunlap InCident and right before Meredith

Casey Smith
Robert Schmidt
Tom Roger
Nancy Linkesh

Jail life

Need jail staff

912
DEFENDANT'S
EXHIBIT #r---'_5_,·"----

---~- <'%
Date l c:.
( '
Case Name G: \-\:3:::-l:.\Q,,~

1;;-<c,~ I
Case No. ,,.:;J.a,Q/"tC?_

913
 ?nri I•Jriicial Circuit Ma ...

Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Fwd: our client

1 message

Merribeth Bohanan <merribeth.bohanan@flpd2.com> Sun, Feb 13, 2011 at 8:48 PM

To: Betty Fuentes <betty.fuentes@flpd2.com>

FYI

- - Forwarded message - - -
From: Paula Saunders <paula.saunders@flpd2.com>
Date: Sun, Feb 13, 2011 at 5:33PM
Subject: Re: our client
To: lnes Suber <ines.suber@flpd2.com>
Cc: Robert Friedman <robert.fiiedman@flpd2.com>, Bill McLain <bill.mclain@flpd2.com>, Merribeth Bohanan
<merribeth.bohanan@flpd2.com>

This was entirely unnecessary and a distraction in the midst of trial. My only point was that you had no right to
undermine Rob's decision and instruct Faye to contact a penalty phase witness about a subpoena, especially
when you had not discussed it with Rob. This is micro-managing.
This has been a difficult and stressful case for all of us, most of all for you. I don1 intend to discuss this further
until the case is ol.l3r.
I'm glad you got some rest this weekend.
Paula

On Sun, Feb 13, 2011 at 1:38PM, lnes Suber <ines.suber@flpd2.com> wrote:

1 it appears that the use of the word "lead" has created somewhat of a concern at least for you. I do not know
, where the word came ffom and I do not know why it is used. The word "lead" does not mean I decide and you
all obey. In all of my cases, the decisions ha\.13 been made by the entire team, and you know that in a 100
I1 percent of the times, the final and crucial decisions as to how to defend a case, ha\.13 been made by the team
' collecti1.13ly.And this case was no exception. E1.13n Nancy participated in the decision of how to argue the
case and how to the defense should be presented at least at the guilt phase. I view my role during trial as
whatel.l3r the team decides or anyone decides, I obey and respect. E1.13n during this trial, you told me a couple
1 of times, in the middle of testimony "do not go there lnes", and if you want to know the thruth now I disagreed
I with your decision, but I deferred to your decision because I value your judgment, your legal expertise and your
knowledge of the law and more importantly, because it concerned an issue that you had argued, and you were
I concerned that we lose the issue on appeal. During objections at the bench, you wrote down a word to clue
I me as to additional arguments to make, and I made them again e\13n though i knew I had already argued
1 them. MB did the same and I included all those and in fact I mol.l3d for a mistrial because I deferred to her
, decision that she was making. She told me thank you afterwards. Rob made the decision that we mo\.13 for
mistrial because of the treatment of the judge towards me, and I deferred to his decision and suggestion el.l3n
I though I did not want to face the wrath of the judge on me and the disparraging of me. This is what caused the
' judge to call me unprofessional which was printed in the paper the next day. I am sure you know what it feels
when one is called unprofessional on a record. Rob also suggested that I accuse the judge of being
a prosecutor but unfortunately i was not able to put that on the record, because when I did accuse the judge of
telling the state how to introduce evidence we did not ha\.13 a court reporter. Neither I nor Rob knew why we
I were being called to see the judge. I am thinking about moving for a mistrial again, if the team thinks of
j additional grounds, please let me know. I think we need to incorporate the argument that the jury was told as
1 to the lack of remorse in this case, and I do not remember if I made that argument or not during the argument
against the admissibility of portions of the confession by the snitch at the jail. Nor do I think we made the
I argument that Foggy could not comment directly on the match as an absolute, but maybe all of that was
1 preseMd during the Frye hearing.
914
I welcome all of your input and interference to whatel.l3r is necessary to

https://mail.google.com/mail/?ui~2&ik... 1/7
 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
• 1 bene~! ),he client ewn if the judge calls me unprofessional again. I do not haw a personal issue on any of this
1 fnterference crapola because my high and satisfaction comes from knowing that i personally haw done
ewrything that I think is humanly possible to prepare the client's case and preserw the clients' rights. That is
I my high. I am at peace with what I did in this case regardless of the outcome. I tried my absolute best to be
I prepared.

During the process of preparation, and inwstigation, I will be the first to agree I interfere a lot. As lead, first
J

chair, or supervisor or whatewr name you want to affix to me, i think it is my responsibility to investigate the
case thoroughly so that later on , we as a team, can make decisions based on what we know and what it has
been thoroughly inwstigated. I aso feel it is my responsibility to make sure projects assigned to others to
inwstigate or research are accomplished in a timely manner. It is only after the assigned projects haw sat for
owr a month or more and requests for updates are not resofwd, that I interfere with and do the project
myself, This part, the inwstigative process, has caused sore feelings at times, but I do not know of any
other way to inwstigate or prepare the cases unless someone takes on the responsibility to insure all is
inwstigated timely. I am open for suggestions. This is what I call "lead" I do not know how else to handle
assigments when people sit for 3 or 4 months without doing anything about them, either because the attendant
J issue is not that pressing because the trial will be probably in a year or two, or because of other work related
1 assignments. All people in\Qived in the unit haw always been allowed to take the initiatiws of inwstigating
whatewr issue comes to mind. You came into the team in this case and you initiated a lot of investigations on
I issues that nobody had not dreamed of before for the last three years, at least not I. Your concerns for the
'J"scrubs" for example was one of those that caused me some anxiety and generated lots of work. Your concern
, for the beads generated additional inwstigatiw work. Merribeth has thought about other issues and she too
'Ihas generated inwstigations. I am sure Rob has generated investigations of issues that came to his mind as
well. I too take initiatiws as to issues, and Chris probably wishes that I did not because it generates lots of
I work for him. Betty has thought of issues and that generated lots of work. Chris himself has thought of issues
J and inwstigated as well. Julie came into the case and thought of issues that generated additional
1 inwstigation, and ewn prompted the team finding and retaining of an expert that was fisted as a witness,

deposed by the State, but that has not yet been released because now that I think about it was not included in
1
the list that I had Friday. Merribeth helped a lot in contacting this expert, securing him, gathering the
I information to be sent to him, etc. The issue of securing a pet scan caused some complications at first, but I
1 am glad now that I owrrode the input and made the decision to hire another neuropsychologist Ouau because
i that created the crystal clear ellidence that a pet scan was needed. Merribeth was assigned to set up the pet
1
scan in this case and you do not know of the amount of work she did to secure a location for the test. She
I made all the arrangements for Wu to come. It was hell for MB to work on liability contracts , confidential
I contracts, , etc. and etc., and that caused deadlines to be set because of our time constraints, and she
1 endured as a trooper when i finally said, well I guess I need to be included in your conwrsations, because the

I situation was going back and forth. As it turned out, it newr became necessary for me to become in\Qfwd.
i She did it all. She ewn went and picked up Wu and took him to the facility and back. Faye has also
I generated lots of inwstigations. The only requirement is that we tell each other so we do not duplicate.
I Some of you complimented me on my cross of Matt Ruddell. I thank you for the compliments. I want to let all
j of you know that I gaw Merrribeth a deadline of less than 20 minutes to prepare the cross of Matt Ruddell -
she had been in\Qfwd in the deposition of the witness and she was well wrsed as to all the issues attendant to
the witness. While he was testifying in open court, Merribeth, carried out my instructions , orders I will say,
without any bitching or bickering She sat at the bench behind the defense table and wrote all the questions by
hand. 1haw learned to read what she calls her scribbles. The only issues that I added were related to the
actual dates being displayed on the screen because she was busily writing questions instead of listening to
that was being said. Thanks MB. You haw a special gift that the clients will certainly will benefit from. I am
going to continue to use that gift of yours fbr the benefit of the clients as much as I can, so I am sure you will
feel used at some point. Also, you do not know how pleased I am to hear that your satisfaction and pride in a
job well done is not contingent upon you personally presenting the stuff to the jury, and getting the credits fbr
it. Your high and satisfaction comes from knowing that your work was presented. Also, I want to personally
thank Merribeth for the preparing of the guilt phase cross examination of witness Matthews and specially fbr
the preparation of the cross examination of Jo Ellen Brown. While she was not used in guilt phase to do any
cross because of the team decision to separate the guilt from the penalty, credits belong where they are due.
So for those of you that complimented me on the cross of Matt Ruddell, please compliment Merribeth instead
if you get the chance.
915
https://mail.google.com/mail/?ui=2&ik... 2/7
 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
'! (';
I To me Paula, it is kind of strange that you accuse me or tell me to learn to be a team player, when I haw been
I the one to include ewryone in the team when crucial decisions in the case haw been made. I do not know if
1 that is what you meant by my being a team player or learning to be a team player or not. I haw no clue.
I Maybe one day we will discuss it and if it will benefit the client, i willleam whatewr you suggest. If you meant
, to tell me to leam to respect the decisions of others in the case, and their judgments, I think I do not need to
I
, learn that because I take seriously the decisions made by others. For example, the team was blessed when
I you agreed to join the defense. You were assigned to handle two statements made by the client, among other
' things, that were really bad. I did not interfere with what you did. I thank you for the time you spent away from
your daughter to accomplish the job you haw been assigned, and I more than anyone knows how much time
we wish to spend with our family but cannot because of job commitments; As to the projects assigned, to
iyou, some of which you \Qiunteered for, you did the research, gaw me the proposed motions, I made one or
iI two typo suggestions, and wrbatim there were filed as prepared by you. You argued the motions during the
trial. I did not interfere with any of your arguments ewn though I had different ideas as to how to argue them. 1
Idid not interfere with any meetings or decisions you made as to the edited portions, or any decisions to leaw
in materials that the judge agreed to delete. In my mind I questioned why but I deferred to your good judgment
1
Iand expertise. Besides that was your issue not mine. Moreowr, when an issue arose and you and Rob were
[ not physically in the courtroom because you were meeting with Eddie as to the statements, I immediately
Iphoned you from the courtroom because the issue had been argued by you when you were present in
1
the courtroom and it was being revisited by Willie Meggs. You and Rob immediately came down, and I did not
1 interfere with any of your arguments, and deferred to all of your arguments on the matter as well. One time you
1 came to me and told me that it was time for me to help you instead, and you assigned me the job of calling

I Neil Smith and the other Georgia lawyer, which I did. I only reached Neil. I was not satisfied with what he was
1 saying and particularly I was alarmed by the tinie frame he was giving us to call him back, 30 minutes. I
! personally called you but you indicated you were busy with the prosecutor. I went to Rob's office to discuss
1
the issue with him, and Bill was there as well, and we discussed the issue because I was going to call Neil
back and get more imfornation from him. You came in and found me in Rob's office. You and I went to my
i1 office and we called Neil. During your talk to Neil, I deliberately left the office, and I did not interfere with any
1 discussions you had with Neil. I did make a couple of suggestions in a piece of paper during the recital of the
1 facts as to the issues in the courtroom, and you incorporated those facts. If this interference is what you are

I talking about, I apologize but I thought it was important as to the plea negotiations and whatewr you were
j arguing at the time for you to point out to the court that I had personally communicated the offer to the State,
1 which you did not know because of your being in the case for only a month, but I beliew you were in the case
I when that was done. I am not sure. If you view my giwn you a note to correct your statement that Falsetti
[ instead of Foggy had compared the bayonet to the bones of the victim and had found no match, I apologize

-The penalty phase is Rob's job and responsibility. Rob and I had talked and he and I had decided that he will
do the penalty phase. After our decision, I receiwd input from others. I presented that input to the whole
, team. And finally our decision was solidified. At one time, the office wanted Rob to handle the guilt phase so
I that I could concentrate in the death penalty phase but I thought that would be unfair to Rob.

I -Rob has the heavy burden of getting the client life in prison and I am sure he has worked long hours including
[ weekends on this. I did not attend any of the meetings he had and I haw not participated nor interfered with
1
any of his selection of witnesses nor with his decisions to retain new experts or recontacting old ones. When
McClaren wanted to know if he was going to be called and was requesting to see the client again, I deferred to
Rob to call him to advise him if he was to be called or not. The neurologist Ouau has phoned me sewral times
on my cell because he too thought he was going to be part of it. I haw not returned those calls. I did mention
it to Merribeth since my understanding is that she is part of the penalty phase and is going to help handle
I
1
sewral civilian witnesses, although i do not know if that is true, and she indicated to me that she will call and
1
talk to him since she and I haw another death penalty case coming up in March and I did not want to cause
any negatiw reaction on this expert of ours for that other case based on any decision not to use him in this
1 case. It was Rob's decision to use this neuropsychologist or retain another one, and I did not interfere nor did I
participate in that decision, and in fact, i was not ewn asked for input as to that. This Dr. Golden that he
retained was the one that came to our case in Willie Smith all disheawd and all owr the place, without a
. coat, with his pants fly open and who had lost all of the documents in our case then. This is also the expert
f that suggested that I falsify records because IRS was auditing him, and I refused but offered to giw him letters

I concerning the actual work he had done in our cases. But this expert is a pair with Wu, so I am sure that
I • • • • ••• - • • • •,
916
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·1 weiglie.a heallily in Rob's decision to retain him. Other than at meetings of the entire team, I haw not
iodiscussed anything with Rob dealing with the penalty phase at all. I haw not been asked for any input and I
haw not prollided any input whatsoewr. l.haw talked to Rob sewral times but all those times were related to
I
guilt phase issues, because I wanted to pick his brain and get his opinions as to some issues inasmuch as he
I
has been in the case since October of 2009, in paper since March of 2010, and has read the entire dis cowry.
I'
haw not interfered with his selection of witnesses to subpoena. I only know what it was prollided to me to
, read to the jury when we read witnesses to see if they knew any names. Rob has listed some 24 or 25
! witnesses. I haw no kowledge if any of those haw been serwd or not, except that I know at least as to
I Deicher and Tabor, the appropriate papers were filed to secure the attendance of those witness because as the
' supervisor, lead or whatewr name you want to call me, I was asked to sign the papers that he had prepared. 1
haw no personal knowledge if any of the 24 or 25 witnesses haw been released or not. Moreowr, this is not
the first time that Rob has participated in one of my cases, so I take offense on your allegations that I do not
trust what he does. I personally know of his skills and his knowledge of the law particularly since he and 1
worked in the Coy Evans' case together. During the meeting last Friday, I skipped through the names of the
I
, penalty phase witnesses and did not address any of them at all. You and I wanted to hear about the penalty
I phase as well but Rob said that he had appointments which I took to mean, appointments with witnesses
I' dealing with the penalty phase. I think he said something to the effect that He will talk to me Monday, but I am
not ewn sure now if I heard him correctly.
1
After, you and Rob left the meeting, an issue arose as to Deicher and the issue was brought to my attention as
the supervisor of the capital unit or the first chair or the lead, the bitch, or whatewr you want to call me, or the
only team lawyer present in the office at the time. It was around 7 1/2 at night. As the supervisor, first chair
j or lead or whatewr you want to you call it, I want you to know that there is is multitude of issues on a daily
i
basis that I am asked to decide on the spot. For example, while trying Hilton, we were appointed to a new
1 murder case, the office got yet another one that is accused of killing two but is a juwnile and was assigned to
1 Justin's dillision, and there is also one in the horizon claiming he can hire his own lawyer but haw not been
' able to do so. Depositions had to be reset for the death penalty trial scheduled in Quincy in July because
I Hankinson finally agreed to continue a huge hearing in Peacock that I haw not ewn started preparing. I had to
I do a huge hearing on the Bard! case in December as well. When I am asked to make decisions I try my best
I to use my better judgment in any giwn time and often times I make decisions that will allow consultation with
1 others or more thinking. I am wry conservatiw in my decisions or at least I try to be. Because the issue

I brought to me late Friday concerned a penalty phase witness and Roli had indicated that he was meeting with
I someone that I assumed were witnesses in the case, and because I did not know what was going on as to the
! penalty phase and I still do not, I asked Faye to specifically call the witness and indicate to him that he was
! not released. I think she did. I haw not released any of Rob's witnesses. My decision WAS NOT
· RELEASE, because i did not know what decision he had reached as to this witness. If you lliew that as
interfering oh well fine and dandy but I stand by my decision, and I stand by my authority as a supervisor, lead
or whatewr you want to call to call me to reach that decision, which in reality was in fa~.Ur of the defense
because I do not know if he will be called or not. You yourself was called by the prosecutor in this case to
1 reach decisions, and you yourself reached conservatiw decisions and did not agree to anything. After you told
me as to what you did, I did not ewn bother contacting the State at all, ewn though a ~.Uice message had
been left on my cell, and look as to the big issue we litigated. I do not haw a personal problem with any of the
attorneys or legal assistants calling or telling any witness that he or she is not released until the lawyer
assigned gets to decided himself or herself.

As I haw done in the past and will do in the future I always treasure the input of the entire team, and I do not
haw any personal issues with people interfering with any of the final decisions or telling me directly what to
do or people taking the initiatiw of asking me to ask for inwstigations to be done, or people taking the initatiw
to suggest issues to research and the like. My self esteem is wry secured within me. My personal opinion is
'I that interference at least at my lewl decisions, makes my final decisions a lot easier to resolw because I can
use the input of great legal minds, and the inwstigators' minds, as opposed to just my mind. On Friday last,
before we met, and at 4 1/2 p.m. and in front of all of you, and based on comments by the judge that he later
found out of character, I told the judge that I was mentally and physically exhausted and I could not ewn think
further. If you want to know the truth or ewn care to know it, the whole courtroom was spinning on me, I was
about to throw up by all the ellidence, I was s~en the judge'~ face and all of your faces double?· ~ere at the
I last minutes of my last cross I was absent m1nded and the JUdge had to asked me at least tw1ce 1f I had
I questions. The presssure of me halling to face all that bad ellidence introduced on Friday and cross the
917
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 2/21/2011_ Public Defender, 2nd Judicial Circuit Ma ...
wnnesses as to an ot mat e111aence In me presence ot tne JUry, was oveiWnelmmg, partiCUiany smce 1 Know
some detailed facts that none of you really know, or care probably know. It is tough when you hale kowledge
but yet you have to attempt to contest those facts. I hope you will never have to endure that. I take the
, responsibility for all the blunders and mistakes, and the extra questions that I should not have asked during
1
the guilt phase crosses or arguments, but I can tell you that it did not really help much to hear some of you
1
talking about it during the actual trial. This is not gossip, I hear them myself because the comments were
i made without checking around as to who was hearing, and unfortunately I was one of the persons.
I[ - Notwithstanding my level of exhaustion on Friday, you, Rob, MB, (later Chris and Betty) requested a
i meeting because all of you wanted to participate in decisions I would make as to what to present during the
defense's guilt phase. Rob announced and gave me the directions in court that the meeting will be at 5 and 1
I nodded in agreement. Immediately after that decision was made, I rushed into the office and requested, not
i requested I demanded, that Faye provide me with the list of witnesses subpoenaed. There was a long list.
. Witnesses have been subpoenaed by me prior to trial, some during the actual trial, and some had been
I subpoenaed at your suggestion that we introduce evidence. Faye wanted to be present so her job as to who to
I release or not could be easier. Also during that short break I had, decisions were made on the spot
I concerning the video testimony of Meg Martin, and I remember receiving the directions from Julie to be at my
I home at 1 p.m. on Saturday. Only one member of the team ,Chris, hurriedly came into my office concerned
II
about my health and started repeatedly suggesting, ordering me, to take a 24 hour break.

I -At the meeting, and one by one I told each of you what evidence each of the witnesses will bring to the case
and then I opened for discussion the witness, the evidence and I took the 1o0te from all of you. One by one, the
I
. majority decision was that we release the witness and I did. The defense's guilt phase was left with one
i' witness, Adina Schwartz. Rob loOted to introduce the witness to perfect the appeal. MB appeared neutral.
[ You 1o0ted against it. I sided with Rob. Therefore by majority decision, that testimony that you worked so hard
I to secure, will be introduced or proffered, and then the defense will rest.
1-so I say to you Paula. Thank you so very much for all of the help and all you do as a friend of mine. Thank
you for doing the cross of the two witnesses. Thank you for researching the three issues and presenting the
I two big issues in court. And thank you any other input that you may have given me and/or Rob. But having
I said that, you owe me a big apology because I have not interfered with anything you or Rob hale done. If you
I take offense simply because I said to Rob why was Deicher lawyering up, I could care less. I heard Rob at a
i general meeting of the team saying something about his lawyering up. The issue of Deicher subpoena came to
me as a supervisor, lead or whatever name you want to affix to me on Friday. And I was merely suggesting
maybe additional research. You know, contrary to what you may or may not think, trial lawyers also have
good ideas sometimes. Again, I expect an apology from you. And I do not care if you disagree with my offering
Rob assistance. If he wants my input I will be ready, if he does not want it, that is okay as well. My job will be
done tomorrow. I have lot of other things I have to start doing and preparing starting Monday when I finish my
part and I intend to bring my notebook and start typing and sending investigative requests in order to prepare
. the death penalty case that Hankinson scheduled for March, the death penalty case scheduled for trial in July
and the huge hearing that I am hoping will result in the actual bar to the death penalty on April 8.

, P.S. I have relaxed this weekend. I slept all day Saturday and half a day today. Yesterday was good. I got
up only to feed Mischa when she barked and barked at me and I went back to bed. Today, I hale finally
started calling all of my family and my Jessica to say hello. There is no preparation to do in the motion for
judgment of acquittal. My closing argument will be very short and I will refer back to my examples during jury
selection as many of you have suggested. And I am reviewing the jury instructions as well.

Thanks to you again.

I at, Feb 12, 2011 at 9:52AM, Paula Saunders <paula.saunders@flpd2.com> wrote:

lnes, it is not your call to tell a penalty phase witness whether or not he is released from a subpoena. That
is Rob's decision and you will have to trust his judgment in this. I know you consider yourself the "lead."
You have reminded all of us repeatedly, but you also have to learn to be a team player.
Rob has worked the penalty phase while you've been busy with the guilt phase. He has the knowledge and
instincts to make the light call without your interference - about Deicher and any other witness. You should
·······•··· ..•.... ,,.....,. ------~---
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2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
pr~9are your JUA monon ana c1osmg, ana sn oacK ana re1ax, nom me cuenrs nana, ana 1ettne penany
Ji 1

phase lawyers take over. It's been two long, painful weeks, and you need to chill now, as difficult as that
II may be.
I 1 Paula
'
I On Fri, Feb 11, 2011 at 11:17 PM, lnes Suber <ines.suber@flpd2.com> wrote:
· I Rob- As you can see it is almost 11 and I cannot still sit down and relax. My head is still spinning around
I and naturally now my mind is shifting about the penalty phase and I am sorry we could not sit and
I
, discuss it today as you all wanted to discuss what was coming next during the guilt phase. Thanks all for
I•
I I your willingness to arrange a meeting and all the guidance that you provided.
! I I
I I seem to remember that you mentioned to me about a month ago that Deicher- one our crucial witness, if
I not the most crucial, was lawyering up. Lawyering up as to what?

, I
I !1 thought the fifth amendment only applies to criminal charges and not to him under the circumstances, as
I I know them and as you I think you related to me.

I ! II
I '
1. He cannot lawyer up and refuse to honor our subpoena because you obtained a properly issued
subpoena and he has been declared to be a material witness by both our court and the georgia court,
I right? So the subpoena is duly served, so he cannot lawyer up as to that.
12. He cannot lawyer up as to anything dealing with his license because he already settled that issue with
, his licensing board in georgia and he was publicly reprimanded, and that reprimand was published. I doubt
I I it Georgia can open up another investigation based on the same fact scenario as already considered. The
I I I1 issue of his treatment of the client has been resolved.
1 3. There are no wrongful death or medical malpractice cases pending against him, but even ifthey were
II I. he cannot claim a fifth amendment and in fact he would be subject to depositions, etc. So the right to
I ! i lawyer up does not attach here. Or does it?
,I I 4. So I think I missing part of the facts here. Because I probably am, and you had to leave the meeting
I I
. I I and
I did not want to talk about the penalty phase today, and we did not address the subpoena to Deicher,
I I I have requested that Faye contact Deicher immediately to tell him that he will not be released from our
!
II I1 subpoena, period until we have the opportunity, you and I to discuss this issue.
I 5. Am I missing something here? As lead counsel, I am still responsible for the whole scenario, but I want
II i to pause to thank you so very much for all your help in filing the boiler plate death penalty motions that
' II 'I requires so much time to just sit and sort out, plus all other motions that you have filed , plus preparing
the 4 experts , plus preparing all other death penalty phase witnesses, plus and plus and plus. I am
I1 starting to reel the stress that you must be going through, wow.
I 6. The reprimand order only mentions a G. H. Is that sufficient to connect our GH to the GH there? How
I i 1 can Deicher lawyer up to come to court and acknowledge that our GH was his client?
I
I . Like I say, i think i have insufficient facts and would like to discuss this and the death penalty case
I I Istrategy with you at your earliest convenience .

., P .S. Please also know that I am available to assist you in anyway that you deem appropriate. If you wish
me to contact any witnesses or do any scheduling this Sunday, I will be glad to assist. My plan is to be
II completely prepared as to your lay witnesses anyways and as to all the witnesses, i think you listed 25,

, so that when I am sitting in court and you need any assistance, or ask any consultation with the derense
I table, I can at least pass notes and the like - I will be very discreet as to not to give the appearance that I
I am participating for credibility purposes. I am sure Paula also will be very discreet as to not make it
I apparent that we are participating in the scenario, although at this point, all this credibility stand is just
I that a stand because the jury knows we all know the facts. Also, I want to offer you any assistance that
you might need in doing whatever research you want me to do during the midst of your penalty phase,
I even if u wish me to start right now. My closing argument as to the guilt phase is no stress situation . It
1 will be short and to the point. So please let me know, how I may assist you. I will be willing to come in
. this Saturday and Sunday to assist you in any way possible. Please let me know.
-thanks.
I
I

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Dear Nancy - Afer I talked to you about the possibility of capital moving to the little building
accross the street, and the offiCe's rationale that it will be good because we do not have clients
visiting, i went and looked at the place just to see if i could be objective. The offices were closed
and all i could hear were kids yelling and screaming. Is there a nursing school downstairs? It
was extremely hard with my hurt foot to step every single step up and down to get to
the office space. MB thought it was even crazy for me to go with the amount of pain i was having
but I told her that this is what i needed to do my health notwishstanding.

1. My whole staff declines and objects to the move because we want and like our existing offices
and nothing there compares to what we have. It will be a demotion for us to go there since we do
now get paid for what we do. We view our offices as a small privilege or at least I do since I
have in my opinion, handled the job of two lawyers for three years, the office knows about it
and not once i have been praised for the job I do, All i have received from the office for the last
three years are put downs and even insinuaitions that I am mentally ill. I think I am beginning to
believe that i must be mentally ill to handle capital cases alone for over three years now and
successfully in my opinion, i am sure not yours. We view our offices as privileges.

2. Faye and now I have health issues with walking up the stairs. While those issues do not
interfere with our job right now, it is very unfair for you to require us to go up stairs. As you said
to me, today, the last time you sprained your foot, you had problems for six months. I am in no
way conceding that my foot problem affects my ability to be a good lawyer. I am only saying that
walking up the stairs carrying a couple of boxes full might be something that my doctor will not
approve and if my doctor does not approve it, i guess the issue will be for theoffice to dismiss me
because i cannot walk properly with boxes up some stairs , or keep me at the existing place. I
intend to get a doctor's excuse because lately I feel, as much of the rest of the staff does, that the
main purpose of the office is to get rid of us the hard working people and specially the ones that
do not for some reason or another do not fall in the the good graces of Mr. Tomasino.

3. There is not an elevator in that building. We deal with hundreds of documents that all of us
take home with us. I frankly think it will be unfair that you order me to carry three boxes full all the
way down and then up to the office. I have a hurt foot, but also I do not want to have a hurt back,
neither do i want to trip and fall downstairs, God forbid, !that I fall and break my hip or something
like that. I do not think the office will be willing to take on that responsibility, simply because
someone suggested that capital go to somewhere. I was surprised but not appalled surprise, that
when I discussed this issue your only concern was of clients needing special accommodations. I
guess if I cannot carry stuff home, i suppose the office is willing to hire another lawyer to help in
capital.

4. Your rationale for capital moving there is because we do not have clients to visit. If that is the
rationale, frankly, you have lots of stfaff that you can move there. For example. You can send
Tomassino, Lori, sharon Fernandez and the intake over there because they never have to see
clients either. In fact that will be the ideal place for them because they finish their job everyday
and they get to go home and relax and not worry about anything but the next set of bills the next
day.

5. Appeals likewise never ever sees a client. So you can send the appellate section there. In
fact, there are many appellate lawyers there already. Misdemeanors only go to court once a
month now. All clients can go there to visit. For the ones that you will be worry to accommdate
because no elevator, which i am sure will be one in a 1000, the lawyer can come to the main
conference room and talk to the client.

The issue as I see it and as the rummor has been going on for over a month now, is that Your
Administrator does not want to see Capital to be around the main office. While I respect your
selection of your administrator and his desire to remove people from the office that he does not

920
like (which he has been sucessfullatery), I do believe that instead of removing capital from the
main office, it will be an excelent idea tot remove him from the main office. Think about it. John
then will have the ability to have two or three or even four computers going at the same time so
that he can track down all the emails that we all receive and send, plus he will have the time to
devote to decide what other technology he will like to bring into the office or which harding
working people he wants to get rid of the office. Lori on the other hand, who is the one that is
responsible for the budget in its totality, will have a quiet time to pay the bills in the office. Their
job is a 8 hour at the most job each day. Unlike me that works 12 and 14 hours a day, they do not
have to carry boxes down to review each night at home. I object to the move..

921
2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
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I label: mise I rs~arqh Mail "][ Search-the-Web I

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Compose Mail 101 Cookbool;s - Baked Farro Risotto- 6 days ago

In box « Back to "Mise" ] ~eri]~ve la.l)~i"Mis~·;-1 Report sp~m I Delete ·1
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All Mail supervision Mise x

Bordt
Brundidge
.· ines SubertQ me, Betty, Faye [R;PiYf-j·.
show details 9/14/10
' .. - - ~·-: : _:·:·_:·:>'·. _;_ . ·: '>,~:-. :~- -_-:·: · _;;·:,·:-. · .- __ >;.;~·- _·.: _ >::- ·.:-- _·.: :· :... · --~- - . -_-..' . . ·---.-----L-
aflermuchthOiJ~hl; lhl;lloedecidecl.to ask the office to. tender the
Chavez
supe~~ipn ofih,ep~pJtf;ilt!Hil to ~omepody ~lse~ I haiA:) t~ed 'JlY best _
- Closed or Transfered . , tp pe C1 ~ootJs.upef'Jisdr to 119 C)yail. fv1aybe 1fyou get Tomassmo as a
CMC's ··-· supe~s6rr you
.)llanks ·- -· · ·. ·· · · ·
will a be lqt happier. Please_ give me your input.
· ·
Computer info.
Hanner --:---·.·:::·-_:... ... ,_. . . ~
).-

. ~~div< .
Hilton

•
Lane Reply to all. Forward lnes is. not available to chat

J~~df:-t'l.·.-.~-....::-5.~~~~:~_;.2_=_~jf::~_~j
McGriff
McMillian
Mise
15 more.,. ----.---.....---------··
Contacts
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·.l_::>~_arc~:.~dd,_~~ in~te _j
Merribeth Bohanan
Invisible

You are iniJisible.

:Go IJisible
Call phone
. Jennifer Turner
Lori Hocking ,
Tread softly because ... i « Back to "Mise" ( Rer)loye ia~~~ ;'tilts~:· ~~rt spam I. [)e)lete I
Nicole Jamieson
Sounds like buying st.
I ry'Pr;> '!cti~ns I >

Sharon Fernandez <Newer 77

I'm not awake, try later
Anthony Perez Call and instant message your Public Defender, 2nd Judicial Circuit Mail contacts
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 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...

FLPD!Ia
supervision
Merribeth Bohanan <merribeth.bohanan@flpd2.com>

1 message

lnes Suber <ines.suber@flpd2.com> Tue, Sep 14, 2010 at 9:48PM

To: Merribeth Bohanan <merribeth.bohanan@flpd2.com>, Betty Fuentes <betty.fuentes@flpd2.com>, Faye Dorn
<faye.dom@flpd2.com>, Chris Ellrich <chris.ellrich@flpd2.com>

alter much thought, I have decided to ask the office to tender the superusion of the capital unit to somebody
else. I have tried my best to be a good superusor to no avail. Maybe if you get Tomassino as a superusor, you
will be a lot happier. Please give me your input. Thanks

923
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2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...

FLPD~m Merribeth Bohanan <merribeth.bohanan@flpd2.com>

supervision
1 message

lnes Suber <ines.suber@flpd2.com> Tue, Sep 14, 2010 at 9:48PM

To: Merribeth Bohanan <merribeth.bohanan@flpd2.com>, Betty Fuentes <betty.fuentes@flpd2.com>, Faye Dorn
<faye.dom@flpd2.com>, Chris Ellrich <chris.ellrich@flpd2.com>

after much thought, I haw decided to ask the office to tender the supervision of the capital unit to somebody
else. I haw tried my best to be a good supervisor to no avail. Maybe if you get Tomassino as a supervisor, you
will be a lot happier. Please giw me your input. Thanks

924
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 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
Maii" Calendar Documents Sites Video more v merribeth.bohanan@flpd2.com I & I

llabel:misc j [searchMail] [-s~ar~hth~-Web -~

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Compose Mail Reuters: Oddly Enough -Suspended teacl>er defends critical IJiog - 4 days ago
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Bordt ' .· Setty Fuentes to lnes, me,. Chris show details 9/3/10 j Reply [ -]
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Brundidge ai,Y~tiere is fine
.
._: .:,·-·... -:.
Cha~.ez

- Closed or Transfered /cjh~u, S~p 2, 2010at 11:17PM, lnes Suber <ines.suber@flpd2.com>

CMC's
· .V,t<M: ..· . . .
·.].;g~~Y· It is tim~ that I take you qut to lunch and appreciate the hard
Computer info. · 1 .·••Vf;_6_.·.~k. you .h.ave don~. lately, including ~utt~ng up with this. week's high
Hanner 1
stress on my part and my constant bitchmg and preachmg about the
c6ri~ition ofour files and how much work we ha~.e at hand. I am sure
Hilton
· · t8rliorro'llf Will be another bad. day but maybe next week we can plan a
Lane ' .. J b{e;;Jk .and go to Iurich._ Faye can I clear the calendar for Wednesday if
McGriff ...•.. ,.e~iydne can attend lunch? Otherwise it will ha~.e to happen the week
) . qf$eptember 13, possi~l¥ the 15th. Please let me know and keep on
McMillian
1
; : 1,\('{p~ing ..· W~ h!j~ two da~s off next week, and, _I will be working from
Mise · f~~~pa on Fnday so you Will get a break from me some next week.
15 morev
.·· th<lnks for your hard work. This time the qhoices are Bella Bella, Oli~.e
Contacts · ·.'i3!lrden, Cabos or any other place you wish to try. Let me know.
Tasks
-~dp~nite aU.
Chat

•l~_:~rch, add, or in~te=:J

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Call phone are hereby notified that any disseJJnipation, distribution or copying of this
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Jennifer Turner
pi?m!'illlnication in error, please notify the sender by replying to the
Lori Hocking ;;• ~en'~er and then permanently delete this e-mail.
Tread softly because ..
· Nicole Jamieson ... _ .· '.' :;· .• ·
Sounds like buying st ..
Sharon Fernandez ~el.ty ·.Fuentes
I'm not awake, try later .. ·.Mitigation and Sentencing Specialist
Office of the Public Defender
Geoff Fischer
Leon County, Florida (Tallahassee)
email help@flpd2.com
Anthnnv PArA7
·. (856) 606 1080 Office
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= Cha>ez i' ,..

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•• fr~~;jf1es Suber <ines.suber@flpd2.com>
CMC's
<-qate:\.!Ved, sep 29,2010 al11:35 PM
Computer info. Sub]e(;!: Proposed mo>e
Hanner · irii:L:•tianiels, Nancy" <nancy,daniels@flpd2.com>
.---,_:·::>":_: .~::·-:.:.-:·____,
Hilton
Lane d~a[Nimcy -Afer I talked to you about the possibility
McGriff <)fpapiia!' m01Ang to the little building accross the street,
)ry~,t~foffice's rationaie that it will be good because we
McMillian
. (jo no!ha;e clients ,;siting, i went and looked at the
Mise .-.,. pl~cie)J.it;;t to see if i could be objecti>e. The offices
15 more• wer"' clcjsed and all i could hear were kids yelling and
, Mr~i<.rj\J~g. Is there a nursing school downs!airs? It
Contacts • '\va$ ii~tremely hard with my hurt foot to step e;ery
Tasks .. single step up and down to get to the office space. MB
thought it was e>en crazy for me to go with the amount
Chat .ofpaiil i was ha-.ing but I told her that this is what i
. needed to do my health notwlshslanding.
'lSearch, ~dd, or i~-At_:_j t.'~y ~hole staff declines and objects to the mo;e
Menibelh Bohanan ,, · beca.usl! we want and like our existing offices and
!n11isib!e '!::nBihipg'there compares to what we ha>e. It will be a
>; (l~i)'lf!\ii(rJ for us to go there since we (lo now get
:You are in-.isible. .; paidc fi(rwhal we do. We -.iew our offices as small a
:Go -.isible '.\~~~~~gei, or at least 1do since 1ha;e in my ·
Call phone ·• ;ppin(dnihandled the job of two lawyers for three
-, •.• ye~ri., tllt. office knows about it and not once i ha>e
Jennifer Turner
'• . 6eeiij;;iaised for the_ job I do, All i ha;e recei;ed fro in
Lori Hocking <tHe office for the last three years are put downs and
Tread softly because ... ·~~h in~ihuaitions that I am mentally ill. I ihink I am
Nicole Jamieson besiHni~g to b_elie;e that i must be mentally ill to handle
Sounds like buying •• pra;)ital c;ases aione for o>er three years now and
Sharon Fernandez .-. ~tic;c..,,ssfully in my opinion, i am sure not yours. We
l'rn not avvake, t1y !ater \1elll'out offices as pri-.ileges.
,•, ,·,
· Geoff Fischer
email help@flpd2. com
•, 'iL .f~y~and now I ha>e health issues with walking up
·ii-Je stairs. While those issues do not interfere with our
Anthony Perez ..·jbb ri~hl now, it is ;ery unfair for you to require us to go
Dancing Bull up stairs. As yoll said to me, today, the last time you
sprail\ed your foot, you had problems for six months.
chris.ellrich
'am in rro way conceding that my fool problem·affects
Faye Dom my
ability to be a good lawyer. I am only saying that
Betty Fuentes ·walking up the stairs canying a couple of boxes full
lnes Suber . rrlighl be something that my doctor will not appro;e and 926
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2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
• if mY qoctor does not appro~oe it, i guess the issue will
Add contact :
·be Jot the office to dismiss me because i cannot walk
·Properly .with boxes up some stairs , or keep me at the
'existihg place. I intend to get a doctor's excuse
i:iebause lately I feel, as much of the rest of the staff
do!'~;thatthe main purpose of the office is to get rid of
us\he hard working people and specially the ones that
;\??hot for same reason or another do not fall in the the
•·good graces of Mr. Tomasino.

·.··• ; ; ~lll~r" is not an elevator in that building. We deal

!(Vi!h ,hundreds of documents that all of us take home
1
.!(Vii~ y~. I frankly think it will be unfair that you order me

II .to cany three boxes full all the way down and then up to
. the office. I haw a hurt foot, but also I do not want to
ha~oe a hurt back, neither do i want to trip and.fall
. i:fpWnstairs, God forbid, llhal I fall and break my hip or
~orrjething like that. I do not think the office will be
wi!liqg to take on that responsibility, simply because
.'som.,;one suggested that capital go to somewhere. I
' \/,(as s~rprised but not appalled surprise, that when I
disou~sed this issue your only concern was of clients
: rieel:!ing special accommodations. I guess if I cannot
•• :'c~@''stuff home, i suppose the office is willing to hire
·, · a~bHier lawyer to help in capitaL

:·~:.:·::*~ur rationale for capital mo>ing there is because we

do riot haw clients to >isit. If that is the rationale,
•.)'r~nki)', you ha~oe lots of stfafflhat you can mo~oe there .
.·. Fo,(example. You can send Tomassino, Lori, sharon
F~rriandez and the intake o~oer there because they ne~oer
. tl~\ii.l·to see clients either. In fact that will be the ideal
· pia(:;~ for them because they finish their job e~oeryday
.• aridtliey get to go home and relax and not worry about
~nything but the next set of bills the next day.

5..• Appeals likewise newr ewr sees a client. So you

pari. send the appellate section there. In fact, there are
· ·lllanyappellate lawyers there already. Misdemeanors
. qnly· go to court once a month now. All clients can go
there to >isit. For the ones that you will be worry to
aq~pmmdate because no elevator, which i am sure will
· ~eone in a 1000, the lawyer can come to the main
26ilference room and talk to the client.

· ji)tl i~sue as I see it and as the rummor has been

: gi:)J,il~'on for o~oer a month now, is that Your
· Adn\ioistrator does not want to see Capital to be around
·,the: main office. While I respect your selection of your
. M~iHislrator and his desire to remo~oe people from the
. 'office that he does not like (which he has been
.· )uc~~sfullatery), I do belie~oe that instead of remo>ing
· ·. pliiiiital from the main office, it will be an excelent idea
tpt)~l11ow him from the main office. Think about it.
' Johifthen will haw the ability to haw two or three or
'· e\oiir;,!our computers going at the same time so that he
. caii track down all the em ails that we all receiw and
. 's~rl~: plus he will ha~oe the time to de\Ote to decide
' 'what other technology he will like to bring into the office
·or Which harding working people he wants to get rid of
the· office. Lori on the other hand, who is the one that is
r!)sponsible for the budget in its totality, will ha~oe a quiet
time to pay the bills in the office, Their job is a 8 hour
at the most job each day. Unlike me that works 12 and
. .. . . . . . 927
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2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
14nqurs a aay, mey ao not na)o<! to carry ooxes aown to
.· re'Jiew e~ch night at home. I obj~ct to the mow ..

·~'_.· ·•·lR:!:e~p~lti~•·.·.;_·;_··•;_····:F:o:rw:a:r:d----:lf\:ezs~is:.~nolavailable to chat

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 Page 1 of2

Merribeth Bohanan - Re: Gay

From: Merribeth Bohanan

To: Dorn, Faye; Suber, Ines
Date: 6/9/2010 6:41 PM
Subject: Re: Gay

Let me know when you decide the schedule.

>>> Ines Suber 6/9/2010 5:07PM>>>

please note that on June 21 there are depos the entire day in Franklin county for which I have to prepare either
the weekend or if we finish the chavez trial during those days but i cannot count on that. Please also notice
that I will like to prepare and talk to the 10 witnesses that will be subpoenaing for trial, or at least review all the
memos to be able to introduce the testimony at trial. Please also note that I have a dentist appointment at 7
1/2 for a tooth that has been bothering me and i cannot predict if the dentist wil go on with the work then or
just dismiss me in an hour or two time frame. Please note that we have an appointment to talk to Haber on
June 22. I would like to have a meaningful talk to this expert at the time and might need a few hours to review
the stuff. The ideal will be on June 23, provided that we can then spend all nighter reviewing the memos to
prepare the testimony of the witnesses. Please also notice that there is research that needs to be done for the
hearing to argue that it is not a capital case, and I am not sure when the time will come to prepare that
research. I guess the other alternative will be to do it June 29 because i think both Merribeth and I will be here
the whole day. Thanks.

IMPORTANT: The information contained in this e-mail message is privileged and confidential information and is
intended only for the use of the individual or entity named. This e-mail may also contain Protected Legal
Information. If the reader of this message is not the intended recipient, or not entitled to access this Protected
Legal Information, you are hereby notified that any dissemination, distribution or copying of this communication
is strictly prohibited. If you have received this communication in error, please notify the sender by replying to
the sender and then permanently delete this e-mail.

>>> Merribeth Bohanan 6/9/2010 4:54PM>>>

We might be able to squeeze it in on Tues. 6/22 or Wed. 6/23 if the Court and ASA have anything open - it not
then I guess Ines can do it on the 7th or 8th or we have some open times the week I return 7/12. thanks.

>>> Ines Suber 6/9/2010 4:50PM >>>

please set hearing. Obviously the hearing will have to be after daniel chavez' trial. the calendar is packed full
and MB is going to be gone until July 12. See what the judge has available. We will need about one hour of
her time for the hearing our side alone. Since it is the state's burden, i will say maybe one hour and one half.
The other alternative will be for me to do it July 7 or 8. thanks.

IMPORTANT: The information contained in this e-mail message is privileged and confidential information and is
intended only for the use of the individual or entity named. This e-mail may also contain Protected Legal
Information. If the reader of this message is not the intended recipient, or not entitled to access this Protected
Legal Information, you are hereby notified that any dissemination, distribution or copying of this communication
is strictly prohibited. If you have received this communication in error, please notify the sender by replying to
the sender and then permanently delete this e-mail.

>>>Faye Dorn 6/9/2010 4:44PM>>>

I filed the M/PT Release.
Let me know when you want me to call for hearing time.
How long will you need?
9 witnesses/ 10 wjChris Ellrich

929
file://C:\Documents and Settin2:s\User\Local Settin2:s\Temn\XPGro Wise\4COFROfiF.T .eonCo... F./9/?.0 10
2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
Mail Calendar Documents Sites Video more v merribeth.bohanan@flpd2.com 1 J, 1

I'~
!l_ had it . .
______________________________________ J
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Search Mail J L::earch I ~~~·!I
the Web
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Bordt · Be show details Feb 13 17 davs aaol Reply I
Brundidge Betty Fuentes
Cha~z betty. fuentes@·i'Jpcl2. com
= Closed or Transfered
CMC's
Computer info.
Hanner ~~ Enili~L Chat j Video & more ·.
Hilton -<mes.s.uoerlO,!npa..:.com"
Lane [)l,itt:FFebruary 13, 2011 9:26:45 PM EST
McGriff To: Bf)tty Fuentes
·. ~betty.fuehtes@flpd2.com>
McMillian · ~l!Pl~l?t: Re: I've had it
Mise
15 more..-
~efty. Jstal),<jby yoiJ, It v.fillbe different
. once u, MB arid I work it.
Contacts
. ~f)cj~lj~~~ll thr¢~ of ~.s ha~ a heart.
Tasks - . f!ang il') there. Yi)u ran absolute
!;l~sE1t td tile capii~l. 4nite~n when we
Chat d!!!~grf)e on things @d vye ta~f)
.. stab~ <Jleach,other,. :t_halol:lJhe highest
ISearch, add, or invite I
!_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
· /espE:c:fi9r:y()G~n~.'·,ow _-. ·-· _···. ·
Merribeth Bohanan . -····-•·>..•.. y()ufpf3~pna]itY an~yqur ~eart. It is
. '·''. •· .•..afff)Otirig (he a~Wf)JJ dE1eply
Invisible
... @!yg~ c~h. see.~y th~. ~mail~ the total
:You are invisible. ft-agmeWitiprr qfthe <Mensa, - ·
'Go visible
Gall phone
• on~/13!1~···seity ~Jentf)~.-·
.:bettyJuentes@fipd2.com> wrote:

~\9iybr1e
Jennifer Turner
.I know is sick of
Lori Hocking
all-these e-inails back and
Tread softly because ... forth, so I will make
Nicole Jamieson
Sounds like buying st.. it quick; I just want to tell
Sharon Fernandez elol:)ryone that it will take a
!1m not a\1\tah:e: tr~f later riiirade for rrtll. ·
Anthony Perez to e~r work. Mitigation
Dancing Bull again.
.. As I. sit here oh a 930
r.hri<: P.llrir.h ~ltnrl:!l.\1 ninht nrl!t.n:::.rinn
https:f/mail.google.com/mail/?rlz~ 1R6... 1/1
 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...

M~m Merribeth Bohanan <merribeth.bohanan@flpd2.com>

revocation of contract
1 message

lnes Suber <ines.suber@flpd2.com> Sat, Feb 19, 2011 at 12:09 AM

To: "Daniels, Nancy" <nancy.daniels@flpd2.com>, John Tomasino <john.tomasino@flpd2.com>, Andy Thomas
<andy. thomas@flpd2.com>
Cc: "pd-attorneys@flpd2.com (group)" <pd-attomeys@flpd2.com>

After Dr. Prichard testified as he did in our Hilton case, I am requesting that the office se~oer all ties with this
psychologist. He came to the courtroom and simply was llicious. He had not factual basis for his opinions , he
had not examined the client, and came to court ant said client was a bad guy without tests and facts. That is
pretty bad and exbits his \lias ... So sorry, I sit here I see no excuse for testifying as the did did except for
money and that makes this potential expert ~oery questinnable. Do no use him

931
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 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
Mail Calendar Documents Sites Video more v merribeth.bohanan@flpd2.com 1A 1

/_~a_be~:mis~-------------·---------------------l Search Mail !_~-;,arch the We~_! "'='3~·\ii

Compose Mail Rotten Tomatoes: Movies -56%, Unknown- 2 hours ago

In box « Back to "Mise" I Rem~~e lab~ I "Misc':J!.'2'~~t__spam_j_ Delete_j

Starred . I fv16rii aCtions I
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Drafts
All Mail Re: Interviewing witnesses Mise x
Bordt r· . . ._. fries Suber to Betty, Nancy, R;-;~t;;ils Ja~ 29--[___Reply'-=l
Brundidge
. okily, we are wasting a lot of precious time with all this bickering and I
Chawz em~iling back and forth. Please disregard my request that you assist I
= Closed or Transfered
CMC's
rl;~by' contacting these wry sensitiw witnesses. After all, since some
otj~~rn include the daughter in law, and personal friends of Ms.
\,Q~QI$p, I was hoping that indirectly we could maybe just maybe get to
Computer info. · Iil'{fairiily. And you somehow haw a gift with witnesses. I did not
Hanner e~flget a chance to explain the assignment to you before all
:the complaining and bickering started and the amount of work sitll to
Hilton
>~~yd~~~ unleashed. Thus, I haw decided that instead of going back
Lane · _. ~h~:Js>/th writing unnecessary emails and wasting precious time, and
McGriff · .:~ng~giflg in bickering _and complaining, I will do the assignment
Jilys~lf!1ometime wry soon, at night after a jury selection session ..
McMillian
( JriJh~fway all of rest Of our efforts can be concentrated on the many
Mise .tbi69s that all of us still need to do - aild I know that we all haw a
1
15 more .. lte(iiendous amount of work yet to be done. I know I do, and I know you
. dp.~oq [3etty. But I am confident that we will all get through this
Contacts . E!~\:iit:J~IIy and we will celebrate when we will get the jury to
Tasks i'e~ql'rlmend life. Thanks. P.S. Paula, MB, Rob and the rest... what
. ; ~therthings do you want to know about Ms. Dunlap wearing the
Chat · ·~~~~~•. · Checl< out the brand new report of Annie White. I think part of
.· ·· dil;boiy
·,_;· ·. .
tendered December 29, 2010.
[~:_arch, add~-~~-in~Q
· Wbw'::. the jury inwstigation is cool. Remind me to tell Chris about the
Merribeth Bohanan •· \ gbod job done but if you see him, let him know because today Chris
lnvislbie .·. haci'9 tough day with my million requests to be in a million places at
: •th~:?!!tne time. A tremendous amount of work! I am just going 01er
You are invisible. ·., the ~r'sj set of potential jurors. It is virtually one and half inchs thick.
:Go visible
Call phone /Ar!l§ 1 Jwas able to get another table to be L shaped placed at the.
;· #$f~rjs!l table so that aU of us lawyers can haw a seat. As I indicated
Jennifer Turner
::.~(lfi>r€1; my proposal is th<Jt we put Mr. Hilton in the middle, and that we
Lori Hocking .; 1~if§tf~ach side, playing musical chairs when we haw to present
Tread softly because ... :' &VIqerfce. Wanted to let you know that Chris already worked this out.
Nicole Jamieson {\iyi:ll')te~ to let you know also that Chris measured and deliwred 4 full
Sounds like bujting st. . : ~~j~.()f suits to the jail. I am hoping that we took shoes ... (wow i do not
Sharon Fernandez .JnoiN; now i am freaking out... maybe we can ask the state to allow us
rm not avvake, try later .. · t().l)o~ow some in evidence, ha!). I requested that he be aUowed to
· .!111a~, I haw also requested Chris to get some kind of reading glasses
Anthony Perez
Dancing Bull
, bUti
::-·, .: '·· .·
am not sure about this.
932
r:hri~P.flrir:h ·..:,..,~-~·- ........ .... ..L .~H • • ! ....... 1 •• .<: •.• !. -"-- .••• o.o:.:.o., . ..•. ..< 1 .o.,.o.< !.<H • • o

https ://mail.google.com/mail/?rlz= 1R6 ... 1/1

 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
Mail Calendar Documents Sites Video more v merribeth.bohanan@flpd2.com 1 J!. 1

Compose Mail BusinessWeek.com --Top News -Swag: 1l1e Currency of Hollywood- 2 days ago
In box to "Mise" I Re~-;;;eJ.ilieJ "Mi;~;; Reportspam] Delete'] I,_________
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Bordt
Brundidge
Chavez

JW~n\an email to you and asked if you could interview a couple of

- Closed or Transfered
CMC's
<i~!'llily inembers. You said that you had to go to Miami which I
Computer info. .· appr~ciate on behalf of the client. And I arn sure Rob appreciates that
Hanner ' y@Went down rather than him to secure the video.
Hilton
Lane
6~~fYou answered that you had to go to Miarni, I then sent you a short
'· s~oltemail asking if it was possible for you to do it afterwards
McGriff §O'il'i¢tirne next week. You did not answer. Instead you went to Rob
•• ::~~oi.lt 11.
McMillian
Mise ' Bbb ~~nt me an ern ail and said that I should use Chris because you
15 more .. ,·w~f~-~usy with some kind of power point that you were working for
; ;~~quf$ month incorpor;;~ting basically all the lifeof the client. I know
Contacts '·yq(l;t1?d rnentionedto me how difficult it had been to put this video.
Tasks
{~fdiWhack to Rob and i said that thesewerelfamily members that are
Chat /~IY:~~nsitive witnesses like the friends of dunlap and the daughter in
·).f§IW~I)dthat you had always insisted in yqu being the one to contact
[~earc.~:~dd, _<:~_invite _j ltf~sf:ifYpe of witnesses .
(.:..:.:'·,_.,,,- :,,,~·"''.'

Merribeth Bohanan
Invisible
You are invisible.
Go visible
Call phone
· Jennifer Turner
· Lori Hocking
Tread softly because ...
Nicole Jamieson
Sounds lii(e buying st..
Sharon Fernandez
I'm not awake, try later
Anthony Perez
Dancing Bull
r.hri<: P.llrir.h
https://mail.google.com/rna il/?rlz= 1R6 ...
.:\\{":~ . ·-'i:~D:·-, . . : ·
· '• Jlie'!3,!lilt Phase comes before the Penalty Phase. Adding Jury
. •$.~1~i@>n if we are able to pick a jury it will probably be end of February
\-~?to~~ we
address the Penaliy phase.
-··: :· . r . . . -
:-~~-~;~body
is questioning your work ethics. I never had questioned
. ttjpse{ ·I did write a merna to Nancy bringing to her attention what I
..per<\&i~ a division in the representation of Mr. Hilton, because I Still feel
··••·.lh~t:Way. The idea was to divide what we au· be doihg but the idea was
' ftii@r'tb be territorial about what each of us is called to do for the client.
' , C(d'i~JlOt corn plain about your work ethics and I never said you did not
· :.workhard, since, the penalty phase was build up based on all of your
<.' b'on\act with the witnesses and also in your suggestion that we do the
' p~fl!~ah, rny following your recommendation which was not initially
•.• reb~i\,ed to good of an idea and finally turning to be the gist of the
. ij?~\iafty phase. You ere also very instrumental in getting the Deicher
··. · qrder'which is the nurnber one stuff in our facorin the case. 933
1/1
2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
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Compose Mail Reuters: Oddly Enough -Suspended teacher defends critical blog- 4 days ago
In box
(( Back to "Mise" j_Remov:_ laber.::_r,_isc'' rR~~rt s_r;;;;;TDelet~] '·-·------..'--·-·----;:.
Starred
r -·• rybre actibns l
Sent Mail
Drafts
All Mail Interviewing witnesses Mise x

Bard! ' , E!~tty Fuentes to Nancy:fnes: R show details Jan 28 l__~eply J~:=.:J
Brundidge
[\pparer~tly there was someissue with me saying that I could not ,I
Chawz ih!¢nnE!v:J witpes~es .. I am really so sick of this petty stuff. For
- Closed or Transfered .. ~h'yqj:l~v,rho <iuestiqn my War~ habits: ·
-...,.,.,.
·:,.":··

CMC's
. ~~§~~4-Jhrougry the holidliys inclyt:fing days when e~ryone else was on
Computer info. vacation. ·_ · · ·· · · ·-
Hanner
Hilton
~~~tM9f1day when we had a holiday I was interviewing the snitch.
Lane 'lhl,lrs(ja}d work With my son sick until I had to take him to the
McGriff
My:sorlcqnti[lues to be on. be rest <JOd I haw left him alone to work.
McMillian
Mise 1 nMf"Thllr5day rwas looking at videos we hax.e hadtorewr and no one
15 more ... .ha~·seen them. Luckly finding one we will be using in penalty.

Contacts • )'e~Ierday after wqrking \ill?pm lhadto take my daughter to tmh

Tasks llrg~[JfC~I'e
,···"·;-•,.-' .. - ... -.
and cjid liot
·.' ·--
' . .
~et home till 11 pm. ·

Chat ~~'IJ int~~ showerbruiied IllY shOulder and bled in my arm. Woke up
'i:l\5:30
..,, and went to Miarni to· ihtennew wiiness.
·, ISe~~h, add, or invit~ _j . ,~,- •.: ''

Merribeth Bohanan
I':M9'\i~~rt
\¥iii{
was beating f!iiu1y frOm alfthe things that I haw been dealing
<,· .. ·· . . .·•·... ·· .. .

Invisible
You are imnsible.
1•. ~~nklyiji is ridipulous that I haw_ to wriie this.

:Go visible
Call phone
Jennifer Turner
. ·-~- J:~R~·e~pjly:._·~~-~R:':;e~p~ly::t~o~a~II:__~F~o~rW~a~rd~-'-~Betty
: i_,•
••, ••.. is not available to chat

[_.______________________j
Lori Hocking
Tread softly because ...
Nicole Jamieson
Sounds like buying st.. ~---~--------------------'
I
Sharon Fernandez
I'm not awake, try later « Back to "Mise" [ Remove la~~!..:~~sc"J R~port spam j Delete J
Anthony Perez I 0:>r~ ~~~-J .
Dancing Bull
r.hriR P.llrir:h
934
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Bordt
Brundidge r.· •.
Cha~z ~>tillelevated.
•. mi!>•. Mil> whit7 _blqOdse)ls a,re !>Pin~aitaptile is . . .
- Closed or Transfered •. , 9~lisih9 a h\?tij~le [1~~d~qh~: Jh~ ipf~cliou~ cji~eas~ doctor does not•
CMC's • fi~~ ~II ih~ l~b~ ba98.!9 i'tl~k~-~ete[lllif1atiqn. V'{e ·~.re in limbo as to
whafwewere exposedto .• we ~eeping him until ancultu_res are n;ey
Computer info. • ib~ck~hd.t\is blood c<l~nllnback to norhiaLW~ should hopefully know
Hanner -·. ~~ret6~otrqy.r'\yh~~~li~ fuJfstaffatffi~ fi.b~pital is aVCiil?ble. _Nancy
Hilton -•. pl).i~~s.y~u t~~~ ~ifre~~ntly, #e h~i.~;!Been ad~seo tp st~Y away tram
p~pplea!> (11Uci1,af1".p?l>§ibl(:i UJ"i.fiiJr.i!> i!l figurecjput.. Please let me
Lane ~rJ9W y(i(jrtfioli[Jfi!s op M~ri;b~!f]~ri~. (11Yretym to wofl<.
<,i: .-' ' ' ' : .. :; -· ., .' .··,- -. ' '. ..-··.'..• . . ... '.::." ' .. .
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f; ~~6rC-'.> ,.t(~lvtd~il:;" s~tf~ isnbt aVailable to chat
McMillian
Mise .FoiWara
15 more ...

Contacts
Tasks

Chat

~e~ch~- add,_ or in~~-_1

Merribeth Bohanan
!nvisib!e

You are invisible.

Go visible
·.Call phone
Jennifer Turner
Lori Hocking
Tread softly because ...
Nicole Jamieson
Sounds like IJuying st..
Sharon Fernandez
I'm not awake, try later
Anthony Perez
Dancing Bull
r.hri~ Allrir.h 935
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All Mail Re: mandatory meeting on Monday Mise x
Bordt ., f~~~sub~rtoB~tty show details Jan 21 ~=-Re~~LJ
Brundidge 'tkho\'f Lfeel the same way although in addition to meeting we all are I
Cha\l'lZ . \'fdrl<ing as well. bummer!!! We will all celebrate wh.en we are done
- Closed or Transfered ~!J~ ~~~- pac:;k to norf11al qapital cas~s ..•... I wiU a neat way for all of us
tQ q~I~J:l.r~te ai\dalioftha'tgood stuff.~. And yes, Paula ... they do ha\l'l
CMC's
:· .a la\r&(lr$ ic)unge in fhe cou~housewhef(l we can celebrate afterwards
Computer info. ·. .· win 6r!t?§~ ill style ... 'Nith wine andbeer and champagne like we did.
Hanner 1 it is()~ it)e fist_floor~·· .. asfaras meetings, this is the last of the
.·· ... rf1oHicans .·or is iimohikans ..•.:.as rar as lam concerned. Probably will
Hilton
me~!jndj\oidually from nci'N ori. See you Monday at 3.... I hope your
Lane so.h)5.doillg bett(lr. I still ha'-l'l wry sharp pains that haw kept me
McGriff arrl
. d§#!'i bQ\ i det(lrrnined not t.o let sharp stomach pains and nausea
McMillian .. ~nd t\~ac:l.~th(ls distr,~ct .rf1~: ....• ,.,;ouch .........• it easy say than done.
.. Qr'ffi:~an?1. ?011.?t7:,qOAM, B~tty Fuentes .
Mise ' <betty.fuentes@flpd2.bom> wrote: .
15 more" <.! R.ea!ly? I thinK We're meeting more t.han working.
j:l:'.:•:•:·c
Contacts .~,:·\·.·:_:_,::):>:_:;;'_-.:-~-:,.-... . . . . .·' .
Tasks
:r./ ~1S~n 20, 2011, at 12:31 PM, lries Suber <ines.suber@fipd2.com>
Chat :l'#fOt~. ·. . .
:ISearch, add,or-invite
~'---····---· ---'
( ; /~~A~r$wm be a mandatory meeting !hi!; coming Monday at 3.p.m. in
•..•..·• j@69ntereh~e room. Pl~asemake attempts to arriw promptly. I
Merribeth Bohanan .,. ' cl'ij! MriY a~()Utt~~ rate nbtice and any prior commitments that you
Invisible .rpigf1tha\.\3 but this meeting is very important. thanks.
-.. __,,,,

'You are imnsible.

:Go visible
Call phone . ~- Reply to all . Forward lnes is not available to chat

c_·-~~-~---J
Jennifer Tumer
Lori Hocking
Tread softly because ...
Nicole Jamieson
Sounds lil(e buying st.. ---·---- .,~----··

Sharon Fernandez
I'm not awal(e, try later «Back to "Mise" ~~~e ll!b~l~is~:_I_Rep·o~-~pam J DeJe_:eJ '·----------"-----
Anthony Perez !·M:lre' actions
Dancing Bull
r.hri" F>llrir.h 936
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Bordl r.. )!l~s Suber I~ Nancy, Andy show details Jan 13f Replyr1
Brundidge
Cha-.ez
•N~~W ~ I want to let you know that I prepared and filed a motion to
·· •ct:ihtiil\le Peacock and that I ha-.e requested the court to grant me a 15
- Closed or Transfered l'llfrillt€(1iearing on this motion. My motion is -.ery specific and clear
· <ti](fb~sically just focussed on the issues we discussed yesterday. I
CMC's
' dictp()(!Tlention in the motion anything about my request to the office
Computer info. · .cilr'Q.oi;t!wo months ago to reassign the case to allow another attorney
Hanner . t& ef!'~.cji-.ely represent Tra~s duling the upcoming hearing. Judging by
·• -Ji;~§k's.~mail yesterday as to my asking to agree for the continuance,
Hilton
• \IV(I.Iir:il.C::omments to me as to a short continuance in Hilton which I
Lane . tgl(:f y(JI.l about, and Hankinson's comments from the bench when he
McGriff . de[ij~c;l)he continuance in October, I think we need to regroup to see
McMillian
t\6W b~st to addres.s the issue of my going to the office administration
C:§!J6efiiing the caseload conflict. I am grateful that the office
Mise · r~Msigned 5 cases that were not death cases. Howe-.er, I am
15 more• toimented by the_ fact that I might need to tell the court or put on the
rebc'irdthat .I ha-.e asked the office to reassign the case because I low
' ; ':( \,·: _,_,:(. '::\ .,
,---~-~-,

Contacts rr\Y..pfliqe, I respect you .and Andy personally and all the people in my
Tasks ·.offle.~ (y.tith the exception of one) and I do not want anything negati-.e to
';\Beh{~id about the office during a court proceeding.
::\•: -,--.-,:',}'•',', ''\0· ., . .

Chat
;,1Yh~~-heen with the Office since 1987. I started in appeals, and
[search, add, or in~te J 'i h]p\!il(lto the trial di~sion around 1980. I belie-.e that I ha-.e handled all
-·---- ------ > d(tii~,~~s~s ~ssigned to me at any particular moment, to the
Merribeth Bohanan s~tisfa@on of the clients, myself and the office hopefully. In my 23 or
Invisible ' lll<ir~'Y¢13rs with the office I ha-.e ne-.er neglected to handle anything.
;.;$J~qe{y0 u put me in the capital unit, all of the death cases ha-.e been
•You are in~sible. , naficti¢d to the satisfaction of the clients, and all the people in1o0l-.ed in
•Go ~sible >
lh~~hiiare l/f3ry proud of our results. No judge has complained to you
Call phone ;iil,iqtit !rw perfonnance in court or my failure to prepare or nothing like
·
th~t. '1\Jo clients of mine ha-.e e-.er come to you or the office to
Jennifer Turner
Lori Hocking
.s8mri@im that I am not representing them properly and in my 25 years
lj~:al] attorney if two clients ha-.e complained about me to the Florida
Tread soffly because ... Bar;
will be considered too many . No client of mine has e-.er come to
Nicole Jamieson · ihe (:burt to say that I am neglecting them in my performance or that I
Sounds lil<e buying st.. hl;IWl hot prepared their case. The office has neliar indicated to me that
Sharon Fernandez I had neglected my job or that I ha-.e not produced. The cases ha-.e
I'm not awake, try later . bg¢ri h~ndled timely, within the time frame at least, that any capital
·• •base sHould be handled. There is back logs in the assignments to the
Anthony Perez
. ·~nit.• Hilton is the oldest case we ha-.e, and of the cases transferred
Dancing 8 u!l W~r~ ~lati-.ely new cases, with the exception of Dominic Hill which was
r.hri.~=: Allrir.:h :::' _ .,:;. ·:·_ ~ .r..• •. ___ .. _ u . . -• __ ...... --- _ .. _. - __ - 937
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All Mail update Mise x
Bordt .. ln~sSubertoRobert, Paula, showdetails-12/19/10 L~eply __[_ J
Brundidge Ro~ -Ineed to update you as to what happened December 10. jl
Chawz p.~Se,rilber ~ 0 w~ h~d ~ hearing on the Demo.crat's motion to unseal
= Closed or Transfered
CMC's
. sewral mottons tn hmtne that had been filed tn the case. I had also
. fil~q a motion to close pretrial hearings dealing with motions in limine
'a~!JJhe ellidence. The motions to unseal by the Democrat and WCTV
Computer info. ha<:fbeen originally scheduled for December 22 but Jessica wanted me
Hanner ·. tq gqto Tampa on December 21 and I was trying my best to
' ·. aq~O~[TJOdate. her as well, so I conllinced Mike, Kellin and Georgia to
Hilton
' · h~~ tij13 hearing mowd to December 10. At the request of the
Lane q~rn.c:ii;fat, and because all the parties thought that we ought to address
McGriff ' Jh~ ql()$ure oft he hearings together with the motions to unseal since

l)
·· ll4roua!lt to the Democrat and WCTV, the defense has to demonstrate
McMillian
un~erLewis and McCrary that the closure and sealing of motions was
Mise ·.• '$jili'hecesary, i wrote and filed the motion to close the pretrial hearings
15 more" a~ W~JI. That is the 37 page motion that I filed in the case (which
. fl~lpf)d ine finish the motion for a change ofwnue, ha! finally!!)
Contacts
Tasks '''l]llcijfiilge as usual Was an absolute jerk, but maybe I was the jerk. ·In
' li!Oy, 6{.ei1t, and regardless and as predicted, the defense is going to
Chat ha~ h.orrible time with this judge and we need to be on our toes to see
at
if aily time we can file a motion to recuse him. I haw a copy of the
: [search, add, or inVI_·te_ _j eriti[~ li(')aring on CD if you care to hear the judge. Nancy suggested
th~flg~t a copy to see how nasty he was, i did get a copy, but it is
Merribeth Bohanan ' ~~rleq ~omewhere on my desk because that is the least of my worries
Invisible ··..:~ttb!s point; although writing this update to you has brought to mind if
.:: \1.(~)1~~ sufficient grounds to mow to recuse him now, and if so, the
You are inllisible. >ffi()tioil is due tomorrow!!!.
'Go visible
Call phone .it~tJW~ys,
tbafti&
<···
the judge unsealed sewral motions ... and one of the motions
tmsealed was the motion that you prepared under Frye dealing
Jennifer Tumer
: \i.fith.t~etool mark. When I asked him to reconsider and tried to
Lori Hocking . appfda9h the bench to point to the part that was important, he basically
Tread softly because ... ·. yeiiMiat me and told him to get away from him. Ha!
Nicole Jamieson
Sounds lil\e buying st.. ''iJ.li~{iswhat the judge said during the December 10 hearing- going on
Sharon Fernandez t\'iy ~(:)gollection
··:·:;·:,':'.,:'':
.
I'm not awal1e, try later
•· ~ifYbucto not want mo!ions unsealed...... do not file them
Anthony Perez
-1 c~nnot beliew that the state would not stipulate to some of these
Dancing Bull
mot'ions ... he did not say which ones.
r:hri~ P.llrir:h l.;.!lo.·. • ' · · - · · - · · · · . . • . £! . . . . . . . .: . . . . . . • ..t.o 938
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Bordt ~,. · ln'es Suber to Robert, Paula, show details 12/19/10 l Reply j_J
Brundidge ~~~ -I need to update you as to what happened December 10.
Cha~.ez [)(3gefnber 10 we had a hearing on the Democrat's motion to unseal
= Closed or Transfered
CMC's
~~~@ motions in limine that had been filed in the case. I had also
:~le9.flrnotion to close pretrial hearings dealing with motions in limine
•, {a~d•tliere\oidence. The motions to unseal by the Democrat and WCTV
Computer info. 'h~'d b$en originally scheduled for December 22 but Jessica wanted me
Hanner ' i()~pJo Tampa on December 21 and I was trying my best to
§qc_iJI'llfnodate her as well, so I con\oinced Mike, Ke\oin and Georgia to
Hilton
. ti~l@the hearing mo~.ed to December 10. At the request of the
Lane d~f:n~)t)iat, and because all the parties thought that we ought to address
McGriff . Jh~'qle)sure of the hearings together with the motions to unseal since
McMillian puf5u~nt to the. Democrat and WCTV, the defense has to demonstrate
. uhc:l~r}.ewis and McCrary that the closure and sealing of motions was
Mise stillhecesary, i wrote and filed the motion to close tile pretrial hearings
15 moreT .a$.WE!!I. That is the 37 page motion that I filed in the case (which
·~~lped me finish the motion for a change of venue, ha! finally!!)
Contacts
Tasks .: ·jt~·j~~ge as usual was an absolute jerk, but maybe I was the jerk. In
.·a~ye~ht, and regardless and as predicted, the defense is going to
Chat ·. • . h~j&· .1'\Prrible time with this judge and we need to be on our toes to see
.!riii! ~ny time we can file a motion to recuse him. I ha~.e a copy of the
~-~ear~~· add, or in\oite Jj . efitif¢ ~earing on CD if you care to hear the judge. Nancy suggested
·. Wf!t:J~(3t a copy Iosee how nasty he Was, i did get a copy, but it is
Merribeth Bohanan
Invisible
! ~.Urecl.~oniewhere on my desk because that is the least of my worries
•.: .~f'll'li§Ypoint; although writing this update to you has brought to mind if
····~~ila\)e sufficient grounds to move to recuse him now, and if so, the
.... fi'l8tib'ri
You are in\oisible. is due tomorrow!!!.
'. ' ;' ,,.~· '•:''
Go \oisible ·:..;.·. :;·/:;:·:·:·;"

Call phone : 'f,~yYJ~ys, the judge unsealed several motions ... and one of the motions
· .tH<~(@unsealed was the motion that you prepared under Frye dealing
Jennifer Turner
wl\~ th~ tool mark. When I asked him to reconsider and tried to
Lori Hocking 1
appr()ach the bench to point to the part that was. important, he basically
Tread softly because ... i · yeiled ~~ me and told him to get away from him. Hal

'Tlli~\swhat the judge said during the December 10 hearing ·going on

Nicole Jamieson
Sounds like buying st..
Sharon Fernandez ,.•. ·. mY· rec;ollection
I'm not awake, try laier
· ~ifyou do not want motions unsealed...... do not file them
Anthony Perez
. ~rcallQot belie~.e that the state would not stipulate to some of these
Dancing rJ ull
r.hri" Allrir.h
.6\\>ti.ohs ... he did not say which ones.
~.- ~
.;··"''·-- 1. •
939
. • . . . • • • &! • • • • • • • • ! ••• & . & ••! . 1

https ://mail.google.com/mail/?rlz= 1R6... 1/1

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-----------·----------·····--------------_/ · - - - - -·------·-
w&"]

Compose Mail NYT Travel- Choice Tables: Flemisl1 Comfort Food in French Flanders- 1 day ago
In box « Back to "Mise" / Remove l~bel "~isc" /.Report spam l.~~~~--~ '--'-'-------'-~---­
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All Mail Re: my work schedule during the holidays
Mise X Print all
Bordt
--------~--:;;:;-~
Brundidge Nancy Daniel show details 12/15/10 1_ ____'::1'~ ____1
Cha>ez l'tll ~h~oting for 2 p.m. tomorrow. I
- Closed or Transfered
CMC's '9FVV¢<f, Dec 15,_2010 at 4:52PM, Robert Friedman
<:robEirtJriedrilan@flpd2.com> wrote:.
Computer infb. ~ Pl(i (fveryone decide on a time yet? As I said, I'm
Hanner -_._ ~v;:iHable anytime
Hilton ::fihursday or Friday~
.,·>.·:;·.:,,.·.. : :
Lane
;.;.d!l\ilfed, Dec 15, 2010 at 2:03PM, Nancy Daniels
McGriff '';j,:nat1cy.Cianiels@flpd2:corn> ·
McMillian ,__-;_;;,wrote:
·:.,
>>'"• ·: ..;
< i:-:•,- .-· : . .'•. . ·' . .. .
·.. :'>'I would like to haw a meeting of the capital team to
15 morev :. di~de ~P the
>.> _fe~popsibilities for the Hilton trial once and fbr all
Contacts before ihe end
Tasks .• :0?-.<.\fthisweek._l tllink this-is necessary so that
'e~ryqn~ can focus on
Chat ' . ~~-iJ~~irresponsibilities and prepare adequately for the
' Wi~l. J could _ _ •-_- _. · -
§arch,!_dd, or imlite J ~?-'h~~ the meeting anyti111e tomorrow or after 1 p.m .
.:,0:6fri~ay, Please · __ _. ·•
Merribeth Bohanan
,'?,¥:QEifpack with me-and let rile know when you are
im~sib!e - 'llvaiiabie. ·

You are inllisible. '

.~~ i : _.·. · . -·.
>--~.0(1.\fVed, Dec 15, 2010 at !:):_52 AM,
.
lnes Suber
:Go llisible
. <i@~:suber@flpd2,com> v.,rot~: _·
Call phone i;?-> :c-:(Wil! not b$ abl$ tofralkl to be with my whole
Jennifer Tumer ~tr1HY'tllfs year.
Lori Hocking .~ ~· >lri§fead __ •
>~ > J~ssica and I and her husband ha~e decided to
Tread softly bec:ause ...
sben~\ime together in
Nicole Jamieson . _. :>:>:>
T;;tlllf:ia
Sounds like buying st.. ·· >:> ::.' aitheir place. They are excited about this since I
Sharon Femandez Gim si.lreall of you
I'm not awake, t1y later ·.;:.:;,;.::-know
Anthony Perez » > by now that Jessica lea~es within walking distance
Dancing Bull to Harbour- Island and ·
• .
r. h n.!=:. P. 11 nr.
h ·
»> i:::hannel side which a >ery fun place around 940
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rsearch the Web ;:::':::\ic'd
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Compose Mail l"(euters: Oddly Enough -Clown Brazilian congressman messes up first \Ole- 4
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Print all
Bordt . lnes Suber to show details 12/15/10-L__Repiy·-·1 ~J
Brundidge .·: y;ei,; youare entitled to take your time off 12/28, 12/29
-
Cha~.ez

Closed or Transfered
. and 12/30 as well as the rest of that week. You also
.· h~~d tci rest I
CMC's
}.§A\t\f:d, Dt;JcJ5, 2010 at 2:p6 PM, Merribeth Bohanan
Computer info. . • <:,fll$~ribeth.bohanan@flpd2.com> wrote:
Hanner . L!ne,s, · · ·
Hilton
··r,:llnqerstand your riot wanting to deal with this while
Lane
McGriff
I Y9Y are away. I wlll behappy to handle whatewr I
I f<:l~ while you are out. ·
. McMillian
.· •. ,8?W$ver, I washoping to take the following three
Mise ~ays off: . 12/28, 12/29 and 12/30.
15 more ... 1
.,lf~eems friJmJack's email that he is ok to hold off
Contacts < ,•~iitif January but w$ will se~ - I will handle any and all
Tasks . ·': ..{hirigs
-. ,., . --
here in the office
.,
but for those three days.

Chat rihought your email to him Was good so we will see

. whilth;lppens with the motion.
/ Search, add, or imlite

Merribeth Bohanan . ·...::.:-/::-.'>' :· ,, " . _. .

lm.isible d;,Wed;Dep 15, 2010 at 1:16PM, lnes Suber
'.<:'illt:J,ib uber@tlpd2 .com:>· wr(iie: ·
. You are invisible. ········]· th~ state has filed motion to take the deposition
a
'Go visible ,,' ,;/!J]tne,dl<j~~iy .. 1, l"(il.f,~pl.~c;t ~ild r~9uest a hearing. I
Call phone ·.'.'• ~II! 119t further IJ1t~rrupt my lrc1Ca!J.on for any reasons
..•.•.· .Wh.ilt~oe\A7r, you might h<i'J!:l to h<jndle this issue,
Jennifer Turner
•.•• l)i~~e youf$f:Jifillrc1ilable during the holidays to both
Lori Hocking ·.•·,: take. dep6 and do the cross on the actual tape to
Tread softly because ... ·· be introduced at trial.
Nicole Jamieson
Sounds like buying st..
Sharon Fernandez
I'm not awake, t;y later
Mernbeth Bohanan
Anthony Perez
Leon County Public Defenders Office
Dancing Buf! · , -·.30·1· S. Monroe
· st reel, s UJ·1 e 401
r.hri!=> Allrir.h ....... _..
1 _,: _ _ _ _ r-• ... ,.. ........ 941
https://mail.google.com/mail/?rlz=1R6 .. . 1/1
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Mail Calendar Documents Sites Video more Y merribeth.bohanan@flpd2.com I J, 1

Compose Mail ESP!~. com -Caroline \Nozniacld eases past Svdlana f\uznetsova of Russia to win
In box « Back to "Mise" I R~riJqv~ la~el ;,Mi~c'' I Report spafll_l Delet~-~
Starred l.:c¥''~ a2ti;ns 1 ----
Sent Mail
Drafts
All Mail Re: Hilton matters. Mise x
Bordt l~es Suber to Robert, me, Fe show detail.s 12f12f10
Brundidge .jb ~lie~bro~h i llle~lli io say fjrst we~k of january
~~~1~E~~~~b8~fJ~rn~ ~61~:R~·
Chavez
- Closed or Transfered
lryes, puber
CMC's . ~.

Computer info. •· ·,. !' ~~ @i)iii~ i$J~~IIy pfe$~~ring meto tell th~m why I cannot even
Hanner
Hilton
· l~~~rl~at~ei!Ydit~l[ifr~C~·~=k~ :idhb~e·~~:~:~. ~~~ea~~~i Je~~s 0 0
Lare.scfiedWedfoitheweel<sofbecernber 13 to the end of
Lane
McGriff
·. 'l ~Bd~~r:~M~~t8i~~J~~~i~11ha~l2~~~~!~!~~~~f~zne~:~ h:;:n
. . ! t~efi~\(.y~e~.~f.~~.S~!ll~~(.f~1.$(lttiisdown in the dumps as I see it
McMillian
I B~~J~mn. if i~ ce~n 9~ ?8P~! Jt~f:!'.Y. ?ar:J~?t see ~c:>~ my second chair
Mise 1 cannot handle hal]dle.that.dep()!;llion and test1mony also. I took
15 morev •· care of all oft he he~riligs that Were scheduled for December 21 and
22. So please whafis left?: December4 13 is tomorrow and 1will
·., -'i . . _'-"'·:·:."·,_.'_; • y.··· ·
.;~·c·.:".•;.-,--"' i" :·"-'(.'-.::- ,._ ·, _•. · ': :•; " , ·._ ,. ,- " , .· . _ . .

Contacts tel~~ ~are 9f)hat • Q.l3~eiTI~erl4 there is a depo that Rob can
· h§ln~le:.•... Opp~ 1. aiji $ort}'.he capf1ot handle because he is on
Tasks
~C:~tio~: •. Wh? ~l.~~l* .~pn~q!!!~lffqr qecember 14? December 15
Chat ·• qej:ioqf Fal~etti ~pj:iears tO be off. The other depos that. you wanted
t0sefiof'20 and tnerEis(ofthe time. after the end ()f the december,
[ Se_~_rch, add, or inlli~ Rbb wilrBe a61etp fia!ldl¢ becau~~ by tnat ume he wm be rested
•· #8~-J~kin~ tili;i q!f, ·pie~~~ a~llis~. • ·
'.·.-·;.
Merribeth Bohanan
., . < ·. : . > >

You are inllisible.

Go ~risible
Call phone
Jennifer Turner
Lori Hocking
Tread softly because ... ·---·-·---------"·""
j
Nicole Jamieson
Sounds like buying st.
Sharon Fernandez
«Back to "Mise" [l§!ove lab!~ ''Niisc" I Report spam [ Delete .1 ··-----·-..· - ' · - - - -
1 fvkir,e actions I
i'm not awake, try later
Anthony Perez
Dancing Bull
~hri!=:i P.llrir:.h ,....._"' --···--:1--.&.:.c ... -'":--- 1""\-···-1--..J'"L.. ... '"'··•~•=- ,.._,£ ____, __ "'·--• 942
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•---'~-~-•

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 2/21/2011 Public Defender, 2nd Judicial Circuit Ma ...
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Compose Mail I'>JYT Travel- 13ool~s of The ·nmes: In His Own Words, a Singular Man's Double Life-
In box
Starred
Sent Mail
Drafts
New window
All Mail Hilton evidence tomorrow and next day
Mise X Print all
Bordt
Brundidge r. in~s Suber tor show details 12/7/10 I
Reply I =1
Chawz 1
. ( ~9'.68! bEllie~ it is E)SSe~tiiJI
for you to be at th;-_- - I
- Closed or Transfered . . e\!idE)Qt<E) viE)iNihQ t01110mJW or the lle)(t day. IJVe need to
CMC's ,t\se ourvalu~ble time ~ry smartly. Would you please
.-· -·· 4~El ~~~s,e _t\'JO days to ~nalize your motions as_ to the
Computer info. . Lane aggravalors? _I know you haw already done all of
Hanner t.tJ~ r¢~e.arch becau~:>e you spent I think weeks or some
Hilton __-.·. timi:! 0 rrthe project So maybe my Friday I will like to
Lane
a
. < hall!i draft. Thanks.

McGriff ,l\l~t••m~ understanding is that the project that I

McMillian assign~d to you as to !he review of the Georgia files has
Mise
·ad'ilaily
._,_., ·.:._•-' been dqne mostiy by Betty _and her intern.
... ' -' ' -.·,: ·:' . ' ' '

15 more" .-· So,'JY.,oUid like for you to after you finish your stuff on
•. l..apE)\"'hiqh sh()uld be.d<mebY Friday because you
Contacts ~9rki:id oh it fufa long period Of lime, to take the.file of
Tasks ·-~~H!:iryndidge_ar1q s~e ifwe haw the transcript of the
-·· · .-_leMwitniissios transcribE)d: 1llen, please set some
Chat depos for it. You can request the depos to be set in or
;_~f;g@.~.March. thank$~
L~ea~ch,_ad~ or invite
Al~6i ~~ide ft(i1T1 p;ericojn Lane.;. who else do we need
Merribeth Bohanan
to depp§e. ·_ I thil]k th.e _medic~! exah!iher.. · Please haw
Invisible .,,,......
tliatpepp.setfor
,_ .. ,., _,,, ...
__ -· - the first
. week
.',
of March. Thanks. MB
;You are invisible.
Go visible
••·¥~kg~~swel;; lam sure allofthiscan be
~(icbmpiished tqrrlorro»r a~d nextday. I am handling
· Call phone < .)~e hl:l~ring in Hilton Cll]dBprdt, so really tllere is
Jennifer Tumer .·.· hpthing'that you haw'iealiy pressing at the present
Lori Hocking
'tihi~- Thanks a whole bunch.
Tread softly because ...
Nicole Jamieson
Sounds li!<e buying st.. ,:.. ~R~--~~p~ly~··---~F~orw~·~a~rd~---l~n_:es~is:_:;not available to chat

t__.____________j
Sharon Femandez
I'm not awake, try later

_____________________ .I
Anthony Perez
Dancing Bull
943
;~~::~::,...,..._,.....:_

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i label:misc i [__:;e~rch Mail] Search the Web

l---·----~------·-·---··--·-------·--------------------.--1

Compose Mail NYT Global Home- Reform Lawyer Says Tunisia Risl\s !'lnarclw - 5 hours ago

lnbox «Back to "Mise" I Remove la~ei"Misc;' ] Report spam [!i.rete j ·~-----_j ___ _
Starred i.More aciipry~ . J
Sent Mail <Newer
Drafts
All Mail Hilton Mise x

Bordt r ~~~~Suber to me, Nancy sh~~j;, 11122iw[:=__Reply .r=::,

Brundidge fu~n~ ypU so wry much for your assistance with Byrd. It was so great 1
Chawz · th!!t you we~e able tota,ke the projecfby yourself and so delighted that
- Closed or Transfered .. yc)u we~ aPie tqj(jentify the dot;urnent~ needed ewn though you haw
CMC's
Opt been l.ilble, tqr~acl M,r. Hilton's ca§e to great detail. Thank you for
wntin~ th~ l~tterahd thank you for acting fast on the project and ewn
Computer info. m.~Ring th~ copi~s to ihst.ire the documents got to be owrnighted to
Hanner ,IM eJ<J)erfJoday, It meimsa lot to me and I am sore it will mean a lot
lathe Client were Ito, t~ll him. I think he is beginning to tell who is
Hilton
. \'l'bc:i· ' TlJ!mk ypu for b~ing ln court wjth me last Friday while Hilton's
Lane
McGriff
I..• i;;~q(>nd pl:i~irwas crb!.l~rlt and. on vacation ,apd thank you for actually
" W9.r.~ingo~t alldtthed~t~ils so tljat fcpyiq bring the matter to the
McMillian M19e:!lnd !lrgue.itJno?,wt., _ ._!l rElcrlly lj~lpe8 with the legal argument.
Tlj$h~:Ypy(ory()ur assi~t~nc~ in id~ntifying,all of the witnesses for the
Mise chairrofcustody; _Tharlk yoUforbypassin~your holiday on the 11th so
15 more" we equid ,\>i:;;it with otherc;Hentsand especially Mr. Hilton. It was good
..· to di!.lqllss W> eVrdenc~ wiih him ...I than~ yqu for bEling there so that I
Contacts ppuld!l~i h~~joexf>,lcrlnwh!lre RobW~s: .. Ofcourse, .it was·a holiday.
Tasks i Cffi:~hky()u for flUing ouf wat¢r botU¥.13nq. tor reminding me ewryday
mY·
th'atl iiee'qloh~~ lynch ariCIWk me specific details if like if I had had
Chat .
<t>~~&.k~s~ ltia~,tor~ott~hlo eat iaWiv.iiffiank yout9 r your barging in
wit~'a~sw~rs yVtlile i w~sresearchin~the issue as to Ms. Bordt for
•1 Search, add, or invite _j iC>Il16ir6\'Jahd I Was taiking olltiouq to rnYf;Sif in the office late today .
. Andihankyoufqrbeingyou. You d~s~rV8the recognition for this past
Merribeth Bohanan w~~k8r#sp~ciaiiY today, 1am !)enc:iiflgJhis email to Nancy so that
lmrisible she.wiil know from nowgnwho does'what in the capital unit. Thanks
>ag~in ..· ·.
:You are invisible.
•Go visible
· Call phone
-~.z;Rfe:p:ly:_··~~R:e:p:ly~t~o:a:II:.___ _:::F~o~rw:a;:rd:·.;....,lnes is not available to chat

.: -: ~· _-: _; j
Jennifer Tumer
Lori Hocking
Tread softly IJecause ...
Nicole Jamieson
Sounds like buying st..
J_· === ·=·
·.

Sharon Fernandez
I'm not awake, try later
<< Back to "Mise" [ Rem011~ labei"Misc" [ Report spam j Delete _[ .. _________,____
Anthony Perez r: War~ hc:!ions J
Dancing Bull
~hri~ Rllri~h 944
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L label:misc
I ,·-------.
' 1 Search Mail j Search the Web j·
---·---·------·----------···--·--·_j - - - - - - - - - - - -
I-··--·---<,

Compose Mail The Official Google Slog- Designing award-winning video games with Sl<etchUp- 3

lnbox
«Back to "Mise" ~ove labei~'Misc~eport sp~mJ-~Ie(e;-1 ·----·----'--~--
Starred 1 ~rEi actio~s J
Sent Mail
Drafts
All Mail Re: Today Mise x
Bordt --rnes Suber to me, Fay-e--~how details 11/8/10 l____~ep~T=I
Brundidge 1. Order on motion to continue Prim ... done.
Cha~ez 2. fY!aterials for DNA expert selected, letter done and gi~en to Faye
- Closed or Transfered 3. Transfer memo on Richardson done
CMC's
·,_.··_._f.•.· ¢hri-ections on Motions in Limirie 3,4,5 done.
. 5. Motion in Limine 6 - done
Computer info. 6. Mptibll in Limine 7- done
Hanner i .. Motion in Limine 8 - done
~- 'rvit;>,Hon in Limine 9- done
Hilton
9; fVlOtion in limine 10 done
Lane lqi rytq~i6n in Limine II done
McGriff 1J;,_pl:~paration for Fazio conference done
·.. ,Jf;··-~~)ection of menial health materials to be sent to Sesta, McClaren
McMillian
l!~cJ-9W~ -done
Mise . 13: J3E!quest for appointment with. Sesta from Rob done
15 more.., . <14; · Rgloiew and preparation of all DNA - done - Request for se!Vices
•h<l~ ~lieiJdY been done.
Contacts p.
.• 1 ~esearch as to how long DNA can remain on a cigarette - done
Tasks ·• · j9_:;~e;~ew of Evidence I and Evi.dence II done as to what I further need
to .be incorporated - done
Chat · 17:.·M~mo to Paula as to issues needed to be research done again
· ~rydre~ent
: J Search, add, or invite I ·'1Jh follow up with Andy as to status of his call to Jack Campbell in
' --·-·-------···~---
i )~~~~e;nqe; to Peacock - done
Merribeth Bohanan .····-1!): Analysis oftheSightings on Hilton- done
Invisible 2CJ: R~\liew and preparation of the materials as to dandy's hair done in
<. j:irepa~tion for teleconference meeting with expert tonite - done
·.••gt..:ReW~w and preparation of tool identification done in preparation for
;'ir)~~filig with expert this afternoon-" done
Call phone s· 22:' Follow up with Betty as to cqn~rsations with Argentina witnesses-
Jennifer Turner
;d8rM:'< ·
23;' "REquest from Chris to gather materials for Joyce in preparation for
Lori Hocking / r\-ioik:>J{Jrlimine as to statementsduring S!Jarch - done
Tread softly because ... )~{ R~~ew with Chris as to items that I Will like to see at FDLE -done
Nicole Jamieson fS:_,Update to Nancy as to the ~rejects accomplished- done
Sounds like buying st. z?> Careful rei.iew as to chain of custody as .io each item of ei.idence
Sharon Fernandez . ~one, _·
I'm not awake, try later ., .2ft. Jqi'y Questionnaire rei.iewed again -done
· f~- Ac!ditionai research as to the Change of Venue- done
Anthony Perez
3Q. Request that Chri.s prepare emotionally and factually to testify for
Dancing_Bull
h_:~~n~ _~~.t~.e ~n:'o~io_~. ?.~ _c~an_g~ of,~nu~~ ~~n~ , ,__ ·' '· __ , ___ , _·'
)'. th!l
r.hri!": Allrir.h
945
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3/8/2011 Public Defender, 2nd Judicial Circuit Ma ...
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Jlabel:misc I Search Maii-J Search the Web

Mail ESPN.com - Love breaks double-double mark but MaliS win - 2 hours ago
Contacts
Tasks «Back to "Mise" I Remove Jabei"Mi;~ .. /I Report spam Delete .lt...::.:::.::..::_L:=li}l
J More actions I
Compose mail
<Newer
In box New window
Starred
revocation of contract Mise x
Print all
Sent Mail lnes Suber to Nan show details Feb 19 J -R;p;y··--
Drafts
After Dr. Prichard testified as he did in our Hilton case, I am
All Mail requesting that the office sever all ties with this
psychologist. He came to the courtroom and simply was
Computer info.
vicious. He had not factual basis fbr his opinions , he had
Hilton not examined the client, and came to court ant said client
MH Clients was a bad guy without tests and facts. That is pretty bad
and ex bits his vias ... So sorry, I sit here I see no excuse
Mise
for testifying as the did did except for money and that
5 more .. makes this potential expert very questinnable. Do no use
him
Chat

ISe~rch, add, or invite

Reply to all Forward
Merribeth Bohanan
Jm;l:s!b!e

You are invisible.

Go visible
Call phone
L ______J
chris.ellrich
Jennifer Turner
Lori Hocking
Tread surrly because ...
Nicole Jamieson
Waming.,don't accide ...
Sharon Fernandez
I'm not awal;e. try later
Anthony Perez
Dancing Bull
Geoff Fischer
email help@flpd2.com «Back to "Mise" I Remove Jabel"MiS?JR;p;;rts-p;;;,-[-Dei~-~ '----'---
Faye Darn
J More actions
Julie Hartwein
Zachary Lawton

Use free POP access to download your messages to Outlook or devices that support

946 1/1
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Mail Read items rrom any RSS or Atom feed right here. Custo1 Pubfic Defender, 2nd Judicial
Contacts
Tasks « Back to "Mise" \ Remove label "Misc~R;;f,-;;rt.p;;;-r[lef;te;--1 ' - - - - - L - f ,
~r~actions

In box
Starred
Re: Interviewing witnesses Mise x
Print all
Sent Mail lnes Suber to Bet! show details Jan 29 ~----R;piy--- .
Drafts
okay, we are wasting a lot of precious time with all this
All Mail bickering and emailing back and forth. Please disregard
my request that you assist me by contacting these wry
Computer info.
sensitiw witnesses. After all, since some of them
Hilton include the daughter in law, and personal rriends of Ms.
MH Clients Dunlap, I was hoping that indirectly we could maybe just
maybe get to the family. And you somehow haw a gift with
Mise
witnesses. I did not ewn get a chance to explain the
5 more .. assignment to you before all the complaining and bickering
started and the amount of work sitll to be done
Chat unleashed. Thus, I ha~.e decided that instead of going
back and forth writing unnecessary emails and wasting
/Search, add, or invite
precious time, and engaging in bickering and complaining,
I will do the assignment myself sometime ~.ery soon, at
Merribeth Bohanan
night after a jury selection session.. In that way all of rest
lnvlsHJ!e of our efforts can be concentrated on the many things that
all of us still need to do- and I know that we all ha~.e a
You are invisible.
tremendous amount of work yet to be done. I know I do,
Go visible
and I know you do too Betty. But I am confident that we
Call phone will all get through this e~.entually and we will celebrate
chris.ellrich when we will get the jury to recommend life. Thanks. P.S.
Jennifer Turner Paula, MB, Rob and the rest... what other things do you
Lori Hocking want to know about Ms. Dunlap wearing the beads. Check
out the brand new report of Annie White. I think part of
·rread soHiy because ...
discory tendered December 29, 2010.
Nicole Jamieson
Warning .. don't accide ...
Wow... the jury in~.estigation is cool. Remind me to tell
Sharon Fernandez Chris about the good job done but if you see him, let him
l'rn not awal<e. try later know because today Chris had a tough day with my million
Anthony Perez requests to. be in a million places at the same time. A
Dancing Bull tremendous amount of work! I am just going· o~.er the first
Geoff Fischer set of potential jurors. It is virtually one and half inchs
ernail help@flpd2.com thick.
Faye Darn
Also, I was able to get another table to beL shaped placed
Julie Hartwein
at the defense table so that all of us lawyers can ha~.e a
Zachary Lawton seaL As I indicated before, my proposal is that we put Mr.
Hilton in the middle, and that we sit on each side, playing
musical chairs when we ha~.e to present evidence. Wanted
to let you know that Chris already worked this out.
947
https:/jmail.google.com/mail/?rlz= 1R6... 1/1
 Merribeth Bohanan <merribeth.bohanan@flpd2.com> 1/
51
12

to me

---------- Forwarded message ----------

From: Nancy Daniels <nancy.daniels@ftpd2.com>
Date: Man, Feb 14, 2011 at 10:44 AM
Subject: Re: I've had it
To: Robert Friedman <robert.friedman@flpd2.com>, Paula Saunders <paula.saunders@ftpd2.com>, Merribeth
Bohanan <merribeth.bohanan@flpd2.com>
Cc: Andy Thomas <andy.thomas@flpd2.com>

I hate to upset the apple cart even further, but Betty just sounded
off at Andy and said she is not going to participate in the penalty
phase! I sent her an e-mail begging her to reconsider and asking her
to meet later -can you guys be available for that?

On Man, Feb 14,2011 at 8:26AM, Robert Friedman

<robert.friedman@flpd2.com> wrote:
>FYI, there are 16 witnesses: 4 experts (Deicher will be discusssed through
> all of them), 6 lay witnesses, 5 witnesses through audio/video, and Betty.
> Parenthetically, Betty has yet to finish her powerpoint and I'm hoping we
> can go through it tonight without drama. Oy vay!
> ---------- Forwarded message ----------
> From: Betty Fuentes <betty.fuentes@flpd2.com>
> Date: Sun, Feb 13, 2011 at 6:28 PM
> Subject: I've had it
>To: Nancy Daniels <nancy.daniels@flpd2.com>, lnes Suber
> <ines.suber@flpd2.com>, Merribeth Bohanan <merribeth.bohanan@flpd2.com>,
>Robert Friedman <robert.friedman@flpd2.com>, Paula Saunders
> <paula.saunders@flpd2.com>, Chris EUrich <chris.ellrich@ftpd2.com>, Faye
> Darn <faye.dorn@flpd2.com>, Julie Hartwein <julie.hartwein@flpd2.com>
> Cc: Andy Thomas <andy.thomas@flpd2.com>
>
>
> I know everyone is sick of all these e-mails back and forth, so I will make
> it quick. I just want to tell everyone that it will take a miracle for me
> to ever work Mitigation again. As I sit here on a Sunday night preparing
> witnesses and the power point I am supposed to deliver I am appalled by what
> this mitigation has turned into. I can not believe that out of more than
> 170 people interviewed less that 5 are coming to testify. Not only is this
> true but the witness that is the basis of all our mitigation Dr. Deicher is
> not confirmed to come either. It saddens me that while the guilt phase was
> going on OUR client sat there alone and with no one speaking to hirn. This
> is where all of this has gone really wrong. This is not a case waiting for
> an appeal this is a life going down the tubes. It is pathetic that everyone
>from birth has not helped him with all his issues, and here were are doing
> the same. We see him as a legal issue not a human being, how sad. I can't
> do this for the law. I am so sorry.
>
> --
> IMPORTANT: The information contained in this e-mail message is privileged
> and confidential information and is intended only for the use of the

948
> individual or entity named. This e-mail may also contain Protected Legal
> Information. If the reader of this message is not the intended recipient,
>or not entitled to access this protected legal information, you are hereby
>notified that any dissemination, distribution or copying of this
> communication is strictly prohibited. If you have received this
> communication in error, please notify the sender by replying to the sender
> and then permanently delete this e-mail.
>
>
>
> Betty Fuentes
> Mitigation and Sentencing Specialist
> Office of the Public Defender
>Leon County, Florida (Tallahassee)
> (850) 606 1080 Office
> (850) 491 3593 Cell
> (850) 606 1004 Fax
> Betty.Fuentes@flpd2.com
>
>

L.
Merribeth Bohanan <merribeth.bohanan@flpd2.com> 1/
51
12

to me

949
 3/20/2017 Fwd: state of mind at the guilt phase- beth.bohanan@gmail.com- Gmail

label:hilton

Gmail More

COMPOSE Fwd: state of mind at the guilt phase Hilton x

--------
Friends
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Family to me

Acquaintances - - - - Forwarded message - - -

From: Betty Fuentes <betty.fuentes@flpd2.com>
Following Date:.Thu, Feb 10, 2011 at 8:31AM
Subject: Re: state of mind at the guilt phase
(Gmaii]Trash To: lnes Suber <ines.suber@flpd2.com>
Cc: "Saunders, Paula" <Paula.Saunders@flpd2.com>, Robert Friedman <robert.frie
7/29/15 <nancy.daniels@flpd2.com>, Bill Mclain <bill.mclain@flpd2.com>

1218 Brafforton
Here is my two cents ... before all this started I said they will
Americano introduce the confession and we had to prepare for two different cases
the problem now is that we have fought the evidence as if he was not
CHP there or did not do it. If you change directions you would look
foolish and it will kill whatever chance we might have on the penalty
DFS
side. This is the problem when the defense is going against the
truth, or covering it up. I thought from the beginning that if we
went with that defense the state would be deflated and they would have
• Merribeth nothing. Now we are the ones deflated and looking foolish because they
have all this evidence in posters showing he was there. Frankly it's
tooooooo late .
• Betty Fuentes

On Feb 9, 2011, at 11:30 PM, lnes Suber <ines.suber@flpd2.com> wrote:

>the judge was stupid to allow the search and transport tapes in. At this time, the<
the State has opened the door by the many out of contest statements that frankly <
whether it on behalfof the guilt or the penalty phase. It has been tough to deal witt
evidence of his mental state, and as such I would like to prove that he was impaired

,:. Click here to Blm!v or Forward

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Friends
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Family to me

Acquaintances ----- Forwarded message -----

From: Robert Friedman <robert.friedman@flpd2.com>
Following Date: Sat, Feb 5, 2011 at 1:45PM
Subject: Re: Bob Priester
[Gmaii]Trash To: Merribeth Bohanan <merribeth.bohanan@flpd2.com>

7/29/15
I'll let you know tomorrow.
1218 Brafforton
On Sat, Feb 5, 2011 at 11:40 AM, Merribeth Bohanan <merribeth.bohanan@flpd2.c
Americana I talked to him today. He will be unable to attend the trial. He cannot travel. He
and apologetic. He was open to having his testimony perpetuated. Please let m
CHP me to hit up Georgia and or Eddie about this?.
DFS
I will of course prepare hirh for the testimony once the date is set.

• Merribeth r·+l
l-.. -"-.1

0
= Click here to Bm2!Y or Forward
• Betty Fuentes

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label:hilton

Gmail

COMPOSE Fwd: non preservation of issue Hilton x

Friends
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Family to me

Acquaintances Huge issue

Following ------ F01warded message ------

From: Paula Saunders <paula.saunders@flpd2.com>
[Gmaii]Trash Date: Wed, Feb 2, 2011 at 11:41 PM
Subject: Re: non preservation of issue
7/29/15 To: lnes Suber <ines.suber@flpd2.com>
Cc: Robert Friedman <robert.friedman@flpd2.com>, Merribeth Bohanan <merribeth
1218 Brafforton

Americana You do need rest and we need to move fOJward. What's done is done. I believe thE
this jury from the pool we had.
CHP Please don't waste time on another motion. let's get prepared for the witnesses on
DFS
On Wed, Feb 2, 2011 at 11:21 PM, lnes Suber <ines.suber@flpd2.com> wrote:
I Sorry but I feel strongly that we did not preserve the issue and I think we were mL
' cause because they had prior knowledge about the case, and put in he record thai
• Merribeth could tell that I wanted to exercise the peremptory, the last one that we had, and
more except that i did not ask for enough. I tried to consult with you as to how rr
Sorry Paula. I think tomorrow I will file a motion to Strike the Jury becasue tainte
• Betty Fuentes tainted ones.

As it has been my position, I am not prepared for this case. Yesterday we shined
almost lost my voice asking the same questions over and over again and while Rc
' bad. But I think the judge could tell because i will strike and then he will see all o
strike but i am simply sorry that i was not quick in asking for more than three chal
so confused that I was probably speaking in spanish and cussing. and also than~
extra bad for death penalty which was our main concern and elsie and harris said
few at the time or back to back, ad reichert that said that bundy was guilty and he

I will prepare the motion to strike tomorrow, I will put it on the docket to be heard
~:~~!asked to rest. I think he is finaly getting concerned about me. do not worry.

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w

label:hilton

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Friends
Merribeth Bohanan <merribetli.bohanan@flpd2.com>
Family to me

Acquaintances - - - - Forwarded message -----

From: lnes Suber <ines.suber@flpd2.com>
Following Date: Sat, Jan 29, 2011 at 12:49 AM
Subject: Re: Interviewing witnesses
[Gmaii]Trash To: Betty Fuentes <bettv.fuentes@flpd2.com>
Cc: Nancy Daniels <nancy.daniels@flpd2.com>, Robert Friedman <robert. friedman((
7/29/15

1218 Brafforton okay, we are wasting a lot of precious time with all this bickering and em ailing back:
daughter in law, and personal friends of Ms. Dunlap, I was hoping that indirectly w•
America no before all the complaining and bickering started and the amount of work sitll to be
bickering and complaining, I will do the assignment myself sometime very soon, at
CHP know that we all have a tremendous amount of work yet to be done. I know I do, an
life. Thanks. P.S. Paula, MB, Rob and the rest... what other things do you want tc
DFS
Wow.•. the jury investigation is cool. Remind me to tell Chris about the good job dor
tremendous amount of work! I am just going over the first set of potential jurors.
• Merribeth
Also, I was able to get another table to be L shaped placed at the defense table so
musical chairs when we have to present evidence. Wanted to let you know that Chr
• Betty Fuentes shoes ... (wow i do not know, now i am freaking out... maybe we can ask the state to
i am not sure about this.

The first part of the jury selection is the publicity part. I doubt it that Hankinson will
Betty to sit in a corner to take notes, but this is not Bateman's case, and I doubt tha
interruptions of any sort. In fact, even during the actual trial, you and Chris are not 1
ask you to do, No doubt. Betty- I will try my best not to ask you to do anything de;
always advanced suggestiions for the guilt phase which were great. I will miss your

This will be my last email on the issue. With me working over 19 hours a day, I nee

You all have a good nile.

On Fri. Jan 28, 2011 at 9:33PM, Betty Fuentes <betty.fuentes@flpd2.com> wrote:

For the record I didn1 go to Rob, he called me this morning when I landed in Miar

On Jan 28, 2011, at 8:18PM, lnes Suber <ines.suber@flpd2.com> wrote:

yes, it is extremely ridiculous that you even have to write this message sim

D I sent an email to you and asked if you could interview a couple· of family n
rather than him to secure the video.

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-------------------
Friends
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Family to me

Acquaintances ----- Forwarded message -----

From: Robert Friedman <robert.friedman@flpd2.com>
Following Date: Fri, Jan 28, 2011 at 3:38PM
Subject: Vicky Rowe and Cleo Debag
[Gmaii]Trash To: Betty Fuentes <betty fuentes@flpd2.com>
Cc: Merribeth Bohanan <merrjbeth.bohanan@flpd2.com>
7/29/15

1218 Brafforton I got Georgia to agree to stipulate to the predicate of the Cleo Debag GBI interview
Americana I got in touch with an investigator in the Tampa PD office and Faye is going to scan
object to perpetuating the videotape deposition but may object to its admissibility. (
CHP
c:~::J
DFS

Click here to 8gQ!y or Forward

• Merribeth

• Betty Fuentes
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lnes

Gmail Move to Jnbox

COMPOSE Fwd: our client Hmon x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important FYI

Sent Mail - - - - Forwarded message - - -

From: Paula Saunders <paula.saunders@flpd2.com>
Drafts Date: Sun, Feb 13, 2011 at 5:33PM
Subject: Re: our client
Circles To: lnes Suber <ines.suber@flpd2.com>
Cc: Robert Friedman <robert.friedman@flpd2.com>, Bill Mclain <bill.mclain@flpd2.
Friends

Family This was entirely unnecessary and a distraction in the midst of trial. My only point "'
not discussed it with Rob. This is micro-managing.
Acquaintances
This has been a difficult and stressful case for all of us, most of all for you. I don't il
Following I'm glad you got some rest this weekend.
Paula

On Sun, Feb 13, 2011 at 1:38PM, lnes Suber <ines.suber@flpd2.ccm> wrote:

• Merribeth [~] it appears that the use of the word "lead" has created somewhat of a concern at I•
all of my cases, the decisions have been made by the entire team, and you know
no exception. Even Nancy participated in the decision of how to argue the case 1
• Betty Fuentes obey and respect. Even during this trial, you told rne a couple of times, in the rni
value your judgment, your legal expertise and your knowledge of the law and mon
bench, you wrote down a word to clue rne as to additional arguments to make, an
I deferred to her decision that she was making. She told me thank you afterwards
even though I did not want to face the wrath of the judge on me and the disparraf
one is called unprofessional on a record. Rob also suggested that I accuse the jL
introduce evidence we did not have a court reporter. Neither I nor Rob knew why
think we need to incorporate the argument that the jury was told as to the lack of
1 the snitch at the jail. Nor do I think we made the argument that Foggy could not c
interference to whatever is necessary to benefit the client even if the judge calls rr
personally have done everything that I think is humanly possible to prepare the eli•
I best to be prepared.

During the process of preparation, and investigation, I will be the first to agree I in
so that later on , we as a team, can make decisions based on what we know and
accomplished in a timely manner. It is only after the assigned projects have sat f<
has caused sore feelings at times, but I do not know of any other way to investig1
1
"lead" I do not know how else to handle assigrnents when people sit for 3 or 4 rr
because of other work related assignments. All people involved in the unit hav
of investigations on issues that nobody had not dreamed of before for the last thrE
concern for the beads generated additional investigative work. Merribeth has !hot
too take initiatives as to.issues, and Chris probably wishes that I did not because i
well. Julie came into the case and thought of issues that generated additional inv
released because now that I think about it was not included in the list that I had F
caused some complications at first, but I am glad now that I overrode the input ar
assigned to set up the pet scan in this case and you do not know of the amount <
confidential contracts, , etc. and etc., and that caused deadlines to be set becaus•

D was going back and forth. As it turned out; it never became necessary for me to I
in\fcu:::tin~tinnc: Tha nnl\1 reon11irc.mont ic:: th~t V•le:> tc.ll c.~rh nthcr c::n IMt:>

955
Mn nnt M11nli,

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 3/20/2017 Fwd: 'Ethan Adams' & Shawn Matthews- beth.bohanan@gmail.com - Gmail

lnes

Gmail Move to lnbox

COMPOSE Fwd: 'Ethan Adams' & Shawn Matthews Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------ Forwarded message-----

From: Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Sent Mail Date: Sat, Feb 5, 2011 at 1:39PM
Subject: Re: 'Ethan Adams' & Shawn Matthews
Drafts To: lnes Suber <ines.suber@flpd2.com>

Circles
It might be best to leave alone but ask the others what they think.
Friends
On Sat, Feb 5, 2011 at 1:26PM, lnes Suber <ines.suber@flpd2.com> wrote:
Family thanks. I have both already. You gave me Shawn's a while ago. I will download
ruse by Mr. Hilton. I wonder if we need to bring this Ethan Adams to testify that I
Acquaintances

Following On Sat, Feb 5, 2011 at 1:21 PM, Merribeth Bohanan <merribeth.bohanan@flpd2.

I Here was my quick run down of these two for you to edit as you like if you like.
! ....,
1[-.··---'
• Merribeth

Click here to B§1!y or Forward

• Betty Fuentes

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lnes

Gmail Move to In box

Fwd: testimony of Winn Hilton x

lnbox Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important FYI

Sent Mail ------ Forwarded message ------

From: Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Drafts Date: Sat, Feb 5, 2011 at 1:38PM
Subject: Re: testimony of Winn
Circles To: lnes Suber <ines.suber@flpd2.com>

Friends
lnes,
Family
I think that we have to figure out this issue factually so we can try to attack it legally
Acquaintances

Following Also - I wanted you to know that I believe the witness is Loretta Mayfield. She is lis

mb

4J) Merribeth On Sat, Feb 5, 2011 at 1:24PM, lnes Suber <ines.suber@flpd2.com> wrote:
the proposed testimony of Winn will destroy both the guilt phase (that was alread)

• Betty Fuentes
I report is Mitchell the same officer that I think I brought to court to say that Hilton ,
I different allergy packets found in different areas,
I would like for you to investigate this matter. Go to the jail and asked that you b€
you. If the intercom is on the at the office~s station, find out what they have to dt
at the station and have to people talk normally at the door of the cell to see if you

Please also investigate Officer Caley Winn.

Please also notice that there are two different conversations, one on August 21 at

The two statements that I think will be introduced:

If the state would give him life he would tell them where the head is. Hilton also
room #39? .. This statement was written on 8/21/08 and also signed by Sgt. Terre

1
The only thing that Hilton regrets is getting caught. If he had a second chance h<
' one belonging to him was in Cheryl Dunlap's tire and where her hands and head v
mentioning she was a sunday school teacher and that plenty of guys must have w

Another assigment. My file as to Mayfield was incomplete when I did the cross.
I need to bring up. I will call Darla the court reporter. thanks.

:;, Click here to Reply or Forward

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lnes

Gmail Move to In box

COMPOSE Fwd: Hilton lists Hilton x

In box
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Starred to me

Important - - - Forwarded message---

From: Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Sent Mail Date: Thu, Feb 3, 2011 at 5:45 PM
Subject: Re: Hilton lists
Drafts To: lnes Suber <ines.suber@flpd2.com>

Circles
They did not list Annie White or Comeau- they did Steven Scott Shawn for the dun
Friends
On Thu, Feb 3, 2011 at 5:37PM, lnes Suber <ines.suber@flpd2.com> wrote:
Family
other witnesses tomorrow
Acquaintances I -daniel prosser
Following -shawn matthews
the rentz that found the body- ronnie, daniel and kelly
-amy gorge to the scene
-annie white to scene
• Merribeth -introduction of pictures - there is one that i cannot find
-autopsy Dr. Clark
-Shawn Matthews -comes to Tallahassee and shows them the Joe Thomas (mig
• Betty Fuentes -William Punuausia processing scene joe thomas and processing car for hairs
-Arnie George and Annie white processing scene
Falsetti as to the charred bones and as to examination of vertebrea
Cecci - as to introduction of knive
Aagard as to the dna
foggy as to the knife
reyland as to the beads
Jeff Brannyon as to stuff found in van (pants, stuff found in dumpster, etc, earner~
Mark Ruddell as to the digital camera
Introduction of the December 3 videos
Murdock as to the dumpster in georgia
comeau as to seeing hilton by the dumspter
Jo ellen brown is the last witness becasue it is the strongest of all.

Click here to Reply or Forward

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Gmail Move to In box

COMPOSE Fwd: Gary Hilton 2008 CF 697A Hilton X

In box Merribeth Bohanan <merribeth.bohanan@f/pd2.com>

Starred to me

Important ----- Forwarded message ------

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Thu, Feb 3, 2011 at 11:26 AM
Subject: Re: Gary Hilton 2008 CF 697A
Drafts To: Colleen Shockley <SHOCKLEC@IeoncounMI.gov>
Cc: Merribeth Bohanan <Merribeth.Bohanan@flpd2.com>, Nancy Daniels <Nancy.D:
Circles <Meggs@leoncountvfl.gov>, Jason Jones <jasonjones@fdle.state.fl.us>, Faye Darn
<Lee@leoncounMI.gov>, Jan Whatley <WhatleV@IeoncounMI.gov>
Friends

Family okay. The motions that I will bring today will be

Acquaintances
Motion to Compel Discovery
Following Motion to Exclude Testimony of 159 witnesses
Motion to exclude testimony of Matt Ruddell
motion dealing with the photographs

• Merribeth thanks.

On Thu, Feb 3, 2011 at 11:20 AM, Colleen Shockley <SHOCKLEC@Ieoncountvfl.g<

• Betty Fuentes
Please forward that motion ASAP. Thanks.

Colleen Shockley
Judicial Assistant to Judge James C. Hankinson
301 S. Monroe Street Room 301F
Ta IIa hassee, FL 32301
(850) 577-4320
(850) 577-4437 (FAX)
SHOCKLEC@Ieoncountvfl.gov

>>>Georgia Cappleman 2/3/201110:36 AM>>>

There is only one matter that I think would be appropriate to hear today if the J

>>>Colleen Shockley 2/3/201110:30AM >>>

Please advise if you have any matters that will need to be heard at 1:30 today.

Colleen Shockley .
Judicial Assistant to Judge James C. Hankinson
301 S. Monroe Street Room 301F
Tallahassee, FL 32301
(850) 577-4320
(850) 577-4437 (FAX)
SHOCKLEC@Ieoncountvfl.gov

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lnes

Gmail Move to lnbox

COMPOSE Fwd: challenges for cause Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------- Forwarded message ------

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Tue, Feb 1, 2011 at 7:31 AM
Subject: challenges for cause
Drafts To: "pd-attorneys@flpd2.com (group)" <pd-attorneys@flpd2.com>

Circles

Friends There were several potential jurors who know about hilton being accussed for a mun
these said that the defenant was probably guilty. The judge seems to make a differ<
Family that they could be fair and that they put all that knowledge aside. At the end of the
needed to go. however, he allowed all of the ones that only heard. We have like 15
Acquaintances the judge will even take the risk, because the rest of the potential jurors are claimin£
Following

(D Merribeth Click here to Reply or Forward

• Betty Fuentes

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lnes

Gmail
-
. ·-··-··-·-··--.,
I-·-·-----··---···"-
. ·-··--
Move to In box

COMPOSE Fwd: Administrative Leave Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important - - - - F01warded message - - - -

From: Nancy Daniels <nancy.daniels@flpd2.com>
Sent Mail Date: Wed, Feb 23, 2011 at 11:42 AM
Subject: Administrative Leave
Drafts To: Robert Friedman <robert.friedman@flpd2.com>, lnes Suber <ines.suber@flpd2.·
<chris.ellrich@flpd2.com>, Paula Saunders <paula.saunders@flpd2.com>
Circles Cc: Andy Thomas <andv.thomas@flpd2.com>, "Tomasino, John" <John.Tomasino@

Friends
With extreme gratitude for the hard work you put into the Hilton
Family
trial, I am granting each of you 5 days administrative leave. It is my
Acquaintances hope that you can arrange your schedules to take care of any pressing
work and then take some time off to rest and relax.
Following I thank you for your contribution to Mr. Hilton's defense.
r::::]
~~--·;

• Merribeth +I...J
!L.___
:, Click here to Reply or FOIWard

• Betty Fuentes

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COMPOSE Fwd: revocation of contract Hilton x

In box
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Starred to me

Important ----- Forwarded message ------

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Sat, Feb 19, 2011 at 12:09 AM
Subject: revocation of contract
Drafts To: "Daniels, Nancy" <nancy.daniels@flpd2.com>, John Tomasino <john.tomasino@
Cc: "pd-attorneys@flpd2.com (group)" <pd-attorneys@flpd2.com>
Circles

Friends After Dr. Prichard testified as he did in our Hilton case, I am requesting that the offi<
examined the client, and came to court ant said client was a bad guy without tests a
Family potential expert very questinnable. Do no use him
Acquaintances c::..1
Following
:, Click here to~ or Forward

• Merribeth

• Betty Fuentes
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Gmail '
-·· .... i
Move to In box

COMPOSE Fwd: rubber bands Hiffon x

Inbox Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------ Forwarded message---

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Fri, Jan 28, 2011 at 1:30 PM
Subject: rubber bands
Drafts To: Chris EHrich <chris.ellrich@flpd2.com>
Cc: "Saunders, Paula" <Paula.Saunders@flpd2.com>, Robert Friedman <robert.frie
Circles

Friends chris ... in anticipate that the state will start introducing rubber bands as circumstantio
rubber bands at joe thomas, rubber bands at II wallace, rubber bands where the bay•
Family
c::J
Acquaintances

Following
Click here to Reply or Forward

• Merribeth

• Betty Fuentes 1.1GB (7%) of 15GB used

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lnes

Gmail Move to lnbox n

COMPOSE Fwd: jury selection Hilton x

In box
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Starred to me

Important ------- FoiWarded message - - - -

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Fri, Jan 28, 2011 at 12:58 Plvl
Subject: jury selection
Drafts To: Robert Friedman <robert friedman@flpd2.com>
Cc: "Saunders, Paula" <Paula,Saunders@flpd2.com>, lvlerribeth Bohanan <merribe
Circles

Friends Hi there Rob - I know you have been working on the jury selection questions for the
to change his mind and tell me to do the whole jury selection. Thanks.
Family

Acquaintances Also aside from the normal publicity questions, if you have any input as to the quest

Following Thanks a lot.

• /vlerribeth
,g, ! Click here to 8gQ!y or FoiWard

• Betty Fuentes

L-----·-·-·-·- "'"'" --· ..... -- "'· -- ·-·· --. ----------- ------ •• -·-··. -

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lnes

Gmail Move to In box '

COMPOSE Fwd: blister packs Hmon x

In box
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Starred to me

Important - - - - Forwarded message ------

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Fri, Jan 28, 2011 at 12:46 PM
Subject: blister packs
Drafts To: Chris Ellrich <chris.ellrich@flpd2.com>
Cc: "Saunders, Paula" <Paula.Saunders@flpd2.com>, Merribeth Bohanan <merribe
Circles

Friends chris -Would you please study the report of Amy George dated January 22 maybe.
van. They are trying to make the analogy that hilton was there because of the alleg
Family in a phanmacy to say how common they are and how many they sell a day or year 01
Acquaintances c::J
Following
:, .!. Glick here to 8&Q1y or Forward

• Merribeth

• Betty Fuentes
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lnes

Gmail

COMPOSE Fwd: Amendment to the Appendix Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important - - - - Forwarded message ------

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Fri, Jan 28, 2011 at 12:38 PM
Subject: Amendment to the Appendix
Drafts To: Faye Darn <faye.dorn@flpd2.com>, Julie Hartwein <julie.hartwein@flpd2.com>
Cc: "Saunders, Paula" <Paula Saunders@flpd2.com>, Robert Friedman <robert.frie
Circles

Friends On monday, I need to renew the motion to dismiss the indictment based on publici!)
Family On Monday, I need to renew the motion for a change of venue- please put the moti
exhibit. This amendment should be i think appendix iv?
Acquaintances

Following On Monday, I need to renew the motion for a continuance. Please my motion to co

On Monday I need to renew my motion to restrict the use of electronic devices by th

in the courtroom will not be allowed to use the cell phones or i pads etc. I need this
f) Merribeth [-+]
Faye and Julie- I appreciate your long working ours but the files are in a complete c
while back to allow the hiring of an ops to accomplish this. Do you think you need tl
• Betty Fuentes spread yourself more than you have. The alternative will be to work overtime if you

I am copying the lawyers with this email so that you remind me to renew all these rr

.! Click here to~ or Forward

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lnes

Gmail Move to In box

COMPOSE Fwd: today's depos ... more ... Hilton x

----------------····-------------·--
lnbox Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Starred to me

Important ------ Forwarded message - - - -

From: Julie Hartwein <lulie.hartwein@flpd2.com>
Sent Mail Date: Fri, Jan 28, 2011 at 10:27 AM
Subject: today's depos... more ...
Drafts To: lnes Suber <ines.suber@flpd2.com>, Paula Saunders <paula.saunders@flpd2.o
<capplemang@leoncountvfl.gov>
Circles

Friends 1. Shaw@ 2pm (tele) ·

2. Ceci@ 2:30pm (tele) (will get notice as soon as I oan)
Family 3. Comeau (tele) (he will be calling us this pm w/a time he oan do it this pm, so thi!
Acquaintances
Thanks much,
Following Julie
C:.lli

(I) Merribeth ,--

[! +
__ j I
.2-, Click here to Reply or Forward

• Betty Fuentes

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lnes

Gmail Move to In box

COMPOSE Fwd: FYI: Deposition tomorrow at 2:00 p.m. Hilton x

lnbox Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important - - - - Forwarded message - - - -

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Thu, Jan 27, 2011 at 6:24 PM
Subject: Re: FYI: Deposition tomorrow at 2:00p.m.
Drafts To: Faye Dom <faye.dorn@flpd2.com>
Cc: Merribeth Bohanan <merribeth.bohanan@flpd2.com>, Paula Saunders <paula.s
Circles

Friends the state told the judge that the witnesses that we were supposed to still depose ha•
start as to what this is. thanks.
Family
On Thu, Jan 27, 2011 at 5:43 PM, Faye Dorn <faye.dorn@flpd2.com> wrote:
Acquaintances
Steven Shaw
Following Telephone depo at 2:00. Jan or Georgia, please let me know what# you want us
Thanks and have a wonderful evening!
Faye

• Merribeth
c-,

• Betty Fuentes Click here to Reply or Forward

i___ ··-···-···-····--···-·------------ -·--···---·-··--·--·-----------··

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lnes

Gmail Move to lnbox

COMPOSE Fwd: Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ----- Forwarded message------

From: Robert Friedman <robert.friedman@flpd2.com>
Sent Mail Date: Thu, Jan 27, 2011 at 5:19PM
Subject: Re:
Drafts To: lnes Suber <ines.suber@flpd2.com>
Cc: Chris Ellrich <chris.ellrich@flpd2.com>, Merribeth Bohanan <merribeth.bohanan
Circles

Friends also, Chris is going to add a couple of GBI discs (Forsyth Co. traffic stop and Debag
Family On Thu, Jan 27, 2011 at 5:07PM, lnes Suber <ines.suber@flpd2.com> wrote:
please be advised that I am preparing a subpoena duces tecum to the custodial o-
Acquaintances
subpoena for the trial and, the evidence will be in the court room because it will b•
Following
we are going to send a big Jist of things that we need to introduce just in case. AI
I ~~~in passing that it might not be a good idea. that is all.
r·--·-·
• Merribeth I, + I
i
··----··J
• Betty Fuentes Click here to Reply or Forward

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 3120/2017 Fwd: Emergency Motion to Continue- beth.bohanan@gmail.com - Gmail

lnes

Gmail Move to In box

COMPOSE Fwd: Emergency Motion to Continue Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important - - - - Forwarded message ------

From: Faye Darn <faye.dorn@flpd2.com>
·Sent Mail Date: Wed, Jan 26, 2011 at 3:09PM
Subject: Emergency Motion to Continue
Drafts To: lnes Suber <ines.suber@flpd2.com>, Merribeth Bohanan <merribeth.bohanan@
Daniels <nancy.daniels@flpd2.com>
Circles

Friends Please see attachment:

Family

Acquaintances

Following

• Merribeth

• Betty Fuentes W EMERGENCY MO.

:;, Click here to Reply or Forward

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lnes

Gmail Move to In box

COMPOSE Fwd: Issues with my son Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important - - - Forwarded message - - -

From: Betty Fuentes <betty.fuentes@flpd2.com>
Sent Mail Date: Sun, Jan 23, 2011 at 12:51 PM
Subject: Issues with my son
Drafts To: Nancy Daniels <nancy.daniels@flpd2.com>, Jnes Suber <ines.suber@flpd2.com:

Circles
My son remains in the hospital. It is unclear as to what caused all
Friends this. His white blood cells are still elevated. The spinal tap is
causing a horrible headache. The infectious disease doctor does not
Family have all the Jabs back to make determination. We are in limbo as to
what we were exposed to. They are keeping him until all cultures are
Acquaintances
back and his blood count in back to normal. We should hopefully know
Following more tomorrow when the full staff at the hospital is available. Nancy
unless you feel differently, we have been advised to stay away from
people as much as possible until this is figured out. Please Jet me
know your thoughts on Merribeth and my return to Work.
G) Merribeth
• Betty Fuentes
Click here to &ill]y or Forward

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 3/20/2017 Fwd: Rachel Wisham (tele-depotoday at 3:30pm)~ beth.bohanan@gmail.com- Gmall

lnes

Gmail Move to In box

COMPOSE Fwd: Rachel Wisham (tele-depo today at 3:30pm) Hilton x

In box Merribelh Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important -------Forwarded message------

From: Chris Ellrich <chris.ellrich@flpd2.com>
Sent Mail Date: Fri. Jan 21, 2011 at 11:33 AM
Subject: Re: Rachel Wisham (tele-<lepo today at 3:30pm)
Drafts To: Georgia Cappleman <CappJemanG@JeoncountvfJ.gov>
Cc: Jnes Suber <Jnes.Suber@flpd2.com>, Julie Hartwein <Julie.Hartwein@flpd2.con
Circles

Friends I know who she is. I have a copy of the report where she is mentioned and will put i1
Family On Fri. Jan 21,2011 at 11:23 AM, Georgia Cappleman <CapplemanG@JeoncounM
Acquaintances I don't know who she is.
-GA
Following
>>> Ines Suber <ines.suber@flpd2.com> 1/21/201111:01 AM>>>
~--·--1
it is really hard to find witnesses. Maybe Jan or Georgia will tell us who the real
• Merribeth +i
!L.--.--J
On Fri, Jan 21, 2011 at 10:40 AM, Julie Hartwein <julie.hartwein@flpd2.com> v
• Betty Fuentes Just wanted to let everyone know that Rachel Wisham, 1292 Old Thomasville

Julie Pearson Hartwein, Legal Assistant

Office of the Public Defender
2nd Judicial Circuit
Leon County Courthouse
301 S. Monroe St., Suite 401
Tallahassee, FL 32301
(850) 606-8524

IMPORTANT: The information contained in this e-mail message is

contain Protected Legal Information. If the reader of this messag<
dissemination, distribution or copying of this communication is st1
permanently delete this e-mail.

I ··--···
L ___ J

: !. Click here to Bru2!Y or Forward

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ines

Gmail

COMPOSE Fwd: Transcript of Jerry Cirino taken 1-14-11 Hilton x

-----------------·----····-----------------------------------
In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Starred to me·

Important - - Forwarded message -----

From: Julie Hartwein <julie.hartwein@flpd2.com>
Sent Mail Date: Fri, Jan 21, 2011 at 11:13 AM
Subject: Fwd: Transcript of Jerry Cirino taken 1-14-11
Drafts To: Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Circles
and another
Friends
- - - - Forwarded message-----
Family From: Billing at Accurate Court Reporting, lnc.--Devonnia Billing Dept. <Billinc
Date: Fri, Jan 21, 2011 at 10:56 AM
Acquaintances
Subject: Transcript of Jerry Cirino taken 1-14-11
Following To: julie.hartwein@flpd2.com, meggsw@leoncounMI.gov

• Merribeth

• Betty Fuentes

. . ---·=-
.. ...,,.,.,_<»Jm.........
-~-
"'" .. r..,,,.,
-"'·-- ...•.... ··-···· .........•..

~ 3831Cirino, Jerry.

Click here to Bmlli' or Forward

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3/20/2017 Fwd: mandatory meeting on Monday~ beth.bohanan@gmail.com- Gmail

ines

Gmail .j
Move to lnbox

COMPOSE Fwd: mandatory meeting on Monday Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------- Forwarded message -----

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Fri, Jan 21, 2011 at 9:49AM
Subject: Re: mandatory meeting on Monday
Drafts To: Betty Fuentes <betty.fuentes@flpd2.com>

Circles
i know I feel the same way although in addition to meeting we all are working as we
Friends good stuff... And yes, Paula ... they do have a lawyers lounge in the courthouse whe
is the last of the mohicans or is it mohikans..... as far as I am concerned. Probably
Family am determined not to let sharp stomach pains and nausea and headaches distract 1
On Fri, Jan 21, 2011 at 7:50AM, Betty Fuentes <betty.fuentes@flpd2.com> wrote:
Acquaintances
Really? I think we're meeting more than working.
Following

r--·----·1 On Jan 20, 2011, at 12:31 PM, lnes Suber <ines.suber@flpd2.com> wrote:
• Merribeth I + I
L_ ___ j
>there will be a mandatory meeting this coming Monday at 3.p.m. in the conferet
very important. thanks .
• Betty Fuentes

:· (l.
1 .,.. Click here to Reply or Forward

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ines

Gmail Move to In box n

COMPOSE Fwd: Gary Michael Hilton 2008 CF 697 Hmon x

In box Merribeth Bohanan <merrlbeth.bohanan@flpd2.com>

Starred to me

Important ------ Forwarded message -----

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Wed, Jan 19, 2011 at 8:50AM
Subject: Re: Gary Michael Hilton 2008 CF 697
Drafts To: Julie Hartwein <julie.hartwein@flpd2.com>
Cc: Merribeth Bohanan <merribeth.bohanan@flpd2.com>, Paula Saunders <paula.s
Circles

Friends well i am going to file a motion to continue today. I do not know if it will be heard tc
to the hearing tomorrow and we have two other lawyers who could take the fried mar
Family unit. Hilton will soon pass and we will go back to norrnal. ........ until the next one cor
Acquaintances
On Wed, Jan 19, 2011 at 8:30AM, Julie Hartwein <julie.hartwein@flpd2.com> wro!<
Following I
there is a schedule conflict withe below for Thursday because we have the FBI Jo

' ------ Forwarded message - - - -

From: Colleen Shockley <SHOCKLEC@Ieoncountvfl.gov>
• Merribeth Date: Wed, Jan 19, 2011 at 8:27AM
· Subject: Gary Michael Hilton 2008 CF 697
To: M Glazer <mglazer@auslev.com>, Faye Darn <Faye.Dorn@flpd2.com>, lnes:
• Betty Fuentes <Nancy.Daniels@flpd2.com>, Robert Friedman <Robert.Friedman@flpd2.com>, E
Cappleman <CapplemanG@Ieoncountyfl.gov>, Christina Colvard <ColvardC@Iem
<DavisD@Ieoncountvfl.gov>, Julie Doherty <DohertyJ@IeoncounMI.gov>, Clave!!•
<EVANSE@Ieoncountvfl.gov>, Veronica Gutierrez <GutierrezV@Ieoncountvfl.gov
, Laughlin <LaughlinM@Ieoncountyfl.gov>, Lisa Boles <LBoles@leoncountvfl.gov>,
<McCoyM@Ieoncountyfl.gov>, William Meggs <Meggs@leoncounMI.gov>, Sue E
I
, <PATTYH@Ieoncountvfl.gov>, Teresa Selva <SelvaT@IeoncounMI.gov>, Steve J
I Cc: Tanya Monk <MONK@Ieoncountvfl.gov>

The defendant is presently scheduled for a 9:00a.m. hearing & 1:30 final pretri;

Judge Hankinson will be doing both the hearing AND the final pretrial at 9:00 a.r

Colleen Shockley
Judicial Assistant to Judge James C. Hankinson
301 S. Monroe Street Room 301F
Tallahassee, FL 32301
(850) 577-4320
(850) 577-4437 (FAX)
SHOCKLEC@Ieoncountvfl.gov

, Julie Pearson Hartwein, Legal Assistant

D I Office of the Public Defender
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ines

r
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COMPOSE Fwd: David Tucker Hilton x

lnbox Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------- Forwarded message --------

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Man, Jan 17, 2011 at 8:59PM
Subject: David Tucker
Drafts To: Julie Hartwein <julie.hartwein@flpd2.com>, Robert Friedman <robert.friedman@
<faye.dorn@flpd2.com>, Chris EHrich <chris.ellrich@flpd2.com>, Betty Fuentes <bel
Circles Cc: Georgia Cappleman <capplemang@leoncountvfl.gov>, William Meggs <meggs({

Friends
Unfortunately there is a lot of information about David Tucker that the state has not
Family frankly, I think it might even be necessary for the defense to redepose a couple of s
been disclosed by the State and I will again file a motion asking for the disclosure oi
Acquaintances
schedule the deposition of this witness that was provided to us by the state a couple
Following can engage in deposing him. Please cancel the deposition. Thanks, and again I a1

r~-~-·-·1

• Merribeth i ....+ I
~ ____)
i''
! :, Click here to Rlill!v or Forward
• Betty Fuentes

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ines

Gmail Move to In box

COMPOSE Fwd: the case Hilton x

lnbox Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ----- FoiWarded message - - - -

From: Paula Saunders <paula.saunders@flpd2.com>
Sent Mail Date: Man, Jan 10, 2011 at 6:07PM
Subject: Re: the case
Drafts To: lnes Suber <ines.suber@flpd2.com>
Cc: Chris Ellrich <chris.ellrich@flpd2.com>, Merribeth Bohanan <merribeth.bohanan
Circle's

Friends The name of the store is Blue Abaca. Call Terry Carley and see if she knows the ov
Family On Man, Jan 10, 2011 at 4:21 PM, lnes Suber <ines.suber@flpd2.com> wrote:
Request for investigation:
Acquaintances

Following - In addition to the investigation request I gave you today, I want the following res

A. As to the missing persons search that you did. I notice that there are individu;
i person that can come to court to testify that they have been missing. For exam pi
• Merribeth the disappearance of her since what time. the same for the rest of the jurisdictior

B. As to the beads- there is a local bead store I think called Blue alcore or som1
• Betty Fuentes manufactures around the world hopefully and how many of those common beads
help so that the owners will help us?

thanks.

Merribeth Bohanan <merribeth.bohanan@flpd2.com>

to me

------- FoiWarded message -------

From: lnes Suber <ines.suber@flpd2.com>
Date: Man, Jan 3, 2011 at 9:07AM
Subject: Re: the case
To: Robert Friedman <robert.friedman@flpd2.com>
Cc: "Daniels, Nancy" <nancy.daniels@flpd2.com>, Betty Fuentes <betty:fuentes@flr

i foiWarded the email from Ouaou to you. McClaren was a phone call. But don't yo
an update before the decisions are made. Thanks.

On Man, Jan 3, 2011 at 8:44AM, Robert Friedman <robert.friedman@flpd2.com>"'

I Please let Drs. McClaren and Ouaou know to hold off on any work until further nc

On Man, Jan 3, 2011 at 8:15AM, lnes Suber <ines.suber@flpd2.com> wrote:

I I received an email from Dr. Ouaou wanted to follow up and find out if any .testi
I

D I, Also, yesterday I talked to Dr. McClaren concerning a new case that came up d•

l had oreoared and aiven to him a huae binder that contained all of the imoortanl
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ines

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In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------- Forwarded message -----

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Sun, Dec 19, 2010 at 1:13PM
Subject: update
Drafts To: Robert Friedman <robert.friedman@flpd2.c6m>
Cc: Paula Saunders <paula.saunders@flpd2.com>, Merribeth Bohanan <merribeth.t
Circles

Friends Rob- I need to update you as to what happened December 10. December 10 we h;
hearings dealing with motions in limine and the evidence. The motions to unseal by
Family best to accommodate her as well, so I convinced Mike, Kevin and Georgia to have
hearings together with the motions to unseal since pursuant to the Democrat and W
Acquaintances
close the pretrial hearings as well. That is the 37 page motion that I filed in the cas
Following
The judge as usual was an absolute jerk, but maybe I was the jerk. In any event, ar
motion to recuse him. I have a copy of the entire hearing on CD if you care to hear
of my worries at this point; although writing this update to you has brought to mind i
• Merribeth
Anyways, the judge unsealed several motions ... and one of the motions that he uns•
to the part that was important, he basically yelled at me and told him to get away fr<
• Betty Fuentes
This is what the judge said during the December 10 hearing - going on my recollectic

-if you do not want motions unsealed ...... do not file them
-1 cannot believe that the state would not stipulate to some of these motions ... he di<
- I will no hear any motions prior to trial
-when i was trying to argue the motion to close some of the pretrial hearings which i
because Judge Lewis had gone through that.... and that I was in effect arguing the 1
filed .... (i know it is not going to be granted)
-and I do not remember what else he said and yelled ...
-He kept under seal the motion dealing with the medea I examiner testifying that it w
-He kept under seal the motion dealing with the December 3, but told the press that
-He kept under seal the motion dealing with the charred bones, but told the press th

-Because of all of the above that the judge said and did not say, I sent the JA a me'
ALL pending motions. I also asked her so send us the procedure that this judge foil
hearings, and I am hopeful that we get an answer by Monday morning.

If the answer is that he will hear ALL motions, then I will file a renewed motion to cl
necessary because the Democrat just prepared the Order dealing with the Decem be

So, so long winded, here. If the answer is that he will hear ALL pending motions, It
but we can also take the position as you suggested that the hearing on January 7 is

My plan, without discussing it with you, was to allow you to go very quickly through t
tool mark because that is a very important issue.

D Let me hear from you. Sorry this email is so long.

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ines

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COMPOSE Fwd: voluntary intox Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ---------- Forwarded message - - - -

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Sat, Dec 18, 2010 at 1:05PM
Subject: voluntary intox
Drafts To: Betty Fuentes <betty.fuentes@flpd2.com>, Merribeth Bohanan <merribeth.boha

Circles
this is an affirmative defense. An affirmative defense has been defined as any dele
Friends engage in the conduct in question. This defense might be inconsistent with an alleg
doubt this will keep my mind occupied for days and weeks. As of right now, I have <
Family
1'"~-1
··------·'
Acquaintances

Following 0
= Click here to &miy or Forward

--,
G) lv1erribeth I +I
L...!
• Betty Fuentes 1.1GB (7%) of 15GB used
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ines

Gmail Move to In box n

COMPOSE Fwd: mitigation witness memos on all of the list Hilton x

In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------Forwarded message----

From: Betty Fuentes <bettyJuentes@flpd2.com>
Sent Mail Date: Fri, Dec 17, 2010 at 11:34 AM
Subject: mitigation witness memos on all of the list
Drafts To: Robert Friedman <robert.friedman@flpd2.com>, Merribeth Bohanan <merribeth.

Circles

Friends

Family IMPORTANT: The information contained in this e-mail message is privileged and c
the reader of this message is not the intended recipient, or not entitled to access thi
Acquaintances
have received this communication in error, please notify the sender by replying to th•
Following

r----~ Betty Fuentes

• Merribeth I+!
,_ __
____ ., __]
Mitigation and Sentencing Specialist
Office of the Public Defender
Leon County, Florida (Tallahassee)
• Betty Fuentes (850) 606 1080 Office
(850) 491 3593 Cell
(850) 606 1004 Fax
Betty.Fuentes@flpd2.com

26 Attachments

VV Margarita and thomas

Perchoux.doc
29 KB

W Thomas Perchoux I W VickyRc

,....,........"".....
~
~1;;.~~'"""""""
cn~•m•~...,
P~lto I<IIWI
.. -.-.
··-··-.. ·-------·

V? Bob Priester.doc W Dr.Delcher.doc W ShawnS

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 Mitigation Witness for Trial

Childhood

Thomas Perchoux - We can tape record him again because he can testify that he
was in psychiatric care when young
Victorine Rowe-we have her statement(through me)
Cleo Dabag- (through me)

Teenage years

Roy Cave was in band with him, knows about foster care
Sandy Herman- girlfriend
Beverly Lehmann Hilton-hostile witness but she is his sister
Maria Castelli
Juan Castelli

Early Adulthood

Leroy Pruitt- was in military with him

Adult prior to 2005

Bob Priester- has information that uncle tried to molest him

Stephanie Duggan
Brenda Champagne

981
Adult prior to and 2005

Dr. Harry Deicher

John Tabor
Jennie Johnson- knows him for ten years saw the decline
Shawn Stewart
Ned Dwight Coleman
Pam Burnett- problem is she called police on him 2004
Ray Lung
Norm Collins
Officer Kim- we have him on tape (through me)
(Laundromat ladies- pending)
Dr. Bateman -vet

Adult during 2007

Maria Linarte- nurse next door to Clairmont address thought he was mentally ill
Chad Smallwood
Justin Wight
Karen Stansbury
Scott Gill
Mildred Stevens
Shaun Faukner

After Dunlap Incident and right before Meredith

Casey Smith
Robert Schmidt
Tom Roger
Nancy Linkesh

Jail life

Need jail staff

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Starred to me

Important ------ Forwarded message - - -

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Thu, Dec 16, 2010 at 8:02PM
Subject: Re: Lemon Lane
Drafts To: Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Circles
i can appear at 8 30 if need be MB. The depo that day starts I think at 9.
Friends P.S. too bad I left and I was not privvy to what it was said, and Betty took it upon h
taken and now Faye is also been asked to provide and search for all my motions so
Family
God is great! I feel a big relief that part of the job that I had on my list of things to
Acquaintances
client and work real hard. There is still lots more. Hang in there and you will be a
Following you about the decision or not to talk to the family. I respect what you say but I wan!
On Thu, Dec 16, 2010 at 7:19PM, Merribeth Bohanan <merribeth.bohanan@flpd2.•
Considering this email - I will check with the JAin the AM then and see if we can

• Merribeth - - - Forwarded message---

From: Janine Taylor <TaylorJa@leoncountyfl.gov>
Date: Thu, Dec 16, 2010 at 5:10PM
• Betty Fuentes Subject: Lemon Lane
To: Merribeth Bohanan <Merribeth.Bohanan@flpd2.com>

I Just had that conversation w/Eddie ... he wants to leave the Motion on the calend
I So ..•.. let me know what Colleen says about the time and I'll put it on the calend;

I __
Merribeth Bohanan
Leon County Public Defenders Office
301 S. Monroe Street, Suite 401
Tallahassee, FL 32301
850-606-1 023

IMPORTANT: The information contained in this e-mail message is privileged anc

the reader of this message is not the intended recipient, or not entitled to access I
have received this communication in error, please notify the sender by replying to

.:, Click here to Brul!y or Forward

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lnbox Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------ Forwarded message - - -

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Sun, Dec 12, 2010 at 10:20 PM
Subject: Hilton matters.
Drafts To: Robert Friedman <robert.friedman@flpd2.com>, Merribeth Bohanan <merribeth.
Fuentes <bettv.fuentes@f/pd2.com>
Circles Cc: "Daniels, Nancy" <nancy.daniels@flpd2.com>

Friends

Family My family is reiliiY pressuring me to tell them why I cannot even take a few days o1
December 13 to the end of December? If the only important deposition is that of Jc
Acquaintances but even if it can be done, I really cannot see how my second chair cannot handle h:
December4 13 is tomorrow and I will take care of that. December 14 there is a der
Following
Falsetti appears to be off. The other depos that you wanted to set for 20 and the re

GJil Merribeth
r·-~-,

:+ I
'~··¥~--·

• Betty Fuentes Click here to Blill!Y or Forward

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In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important ------- Forwarded message ------

From: Betty Fuentes <betty.fuentes@flpd2.com>
Sent Mail Date: Tue, Dec 7, 2010 at 9:44 AM
Subject: H
Drafts To: lnes Suber <ines.suber@flpd2.com>, Robert Friedman <robert.friedman@flpd2.·

Circles
There were 79 witnesses from the GB I reports that have not been spoken
Friends to. I called 29 yesterday and spoke to a dozen of them. One is
fantastic, he says that he met him at a laundry (not the Korean one)
Family and he spoke with him several times. He find him to have some
functioning issues that probably were not detected when young. He
Acquaintances
said he knows this because his family owns a school for special kids.
Following He believes that he repeated things because that is what people with
asperger and autism do.

-..
• Merribeth

' Click here to Brum or Forward

• Betty Fuentes

i
l_ ........ ". ···'-····---·----"-··----~·

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lnbox Merribelh Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important -----Forwarded message-----

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Mon, Nov 15, 2010 at 1:21 PM
Subject: Re: hey
Drafts To: Merribeth Bohanan <merrjbeth.bohanan@flpd2.com>

Circles
do you think you want to attend? Don't you think that your time will be better spent
Friends the Georgia project. What do you say. I am king of worried about this and I though
Family On Mon, Nov 15, 2010 at 1:01 PM, Merribeth Bohanan <merribeth.bohanan@flpd2.
11 have not found anything of interest in Ga materials as of yet but still have a bun•
Acquaintances

Following Jason Byrd- responded to my email this. AM and said he would send his rates an<

I have not heard from Ms. Wayland, yet. I called and LM on Friday and called ag.
get an email for her from the front desk.
• Merribeth

I On Mon, Nov 15, 2010 at 12:55 PM, lnes Suber <ines.suber@fipd2.com> wrote:
• Betty Fuentes ! did you find anything of interest in the georgia materials,
and did you hear from

!. Click here to Bml.!Y or Forward

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lmp01iant -----Forwarded message-----

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Wed, Nov 24, 2010 at 12:37 PM
Subject: Re: Test - H
Drafts To: Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Circles
As to Number 7 below. You do not need a receipt or a fax to attach to a request. S
Friends
On Wed, Nov 24, 2010 at 12:20 PM, Merribeth Bohanan <merribeth.bohanan@flpd:
Family 1. The facility sent the agreement with #4 changed.
Acquaintances
2. Once you approve the confidentiality agreement we will send it for their review
Following
3. Joyce said the director will be in on 11/29 to sign it.

4. Do you want to have someone sign theirs today and _get it to them or wait fort
• Merribeth r-~]
5. Called Dr. Wu he is going to look at flights into Tall. for next week and call me

• Betty Fuentes 6. I asked him about the weaning off med's as well as the diet restrictions prior tc

7. Joyce is sending me something in writing today with the rate for the test on it 1

.! Click here to Reply or Forward

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In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Starred to me

Important - - - F01warded message - -

From: Nancy Daniels <nancy.daniels@flpd2.com>
Sent Mail Date: Wed, Nov 10, 2010 at 9:30 AM
Subject: Re: Thank you
Drafts To: lnes Suber <ines.suber@flpd2.com>, Betty Fuentes <betty.fuentes@flpd2.com>
<julie.hartwein@flpd2.com>
Circles

Friends Thank you to both of you and the entire capital team for the long
hours and difficult work you are doing on this case.
Family
On Wed, Nov 10, 2010 at 6:36AM, lnes Suber <ines.suber@flpd2.com> wrote:
Acquaintances
>You do not know how much I appreciate your help during the last two viewings
Following > of the evidence. Your analytical thinking as to what to view because of the
> evidence at hand is amazing. You know the evidence just as well as I do, if
> not better. I forgot durtng the viewings that you were the mitigation
> specialist or an investigator, and instead I started talking to you as if
• Merribeth > you were my cocounsel in this difficult case of ours. Yesterday for example
> was incredible and more so because I felt at a loss and about to collapze
> under pressure when I was given the 190 pages listing the evidence in this
• Betty Fuentes > case. (I feel sad that all of the hard work Chris and his intern did in
> their attempt to organize the items was not able to be used because they
> received it too late and FDLE had spent all day Friday (3 of them) pulling
> the evidence) I wish you will go to law school. The type of input you give
> me as to how to challenge the evidence, what else we need to investigate,
>what we need to disprove and how to argue things is awesome. I will follow
>all of the recommendations you advanced yesterday. Thank you so very much
> Betty. You need to be recognized and the office needs to know who does what
>to assist me and therefore I am sending a copy of this email to Nancy.
>
> P.S. I took the 190 pages home, and I have been going item by item and I
> will provide a list of the items we want to see to Annie White by Monday so
> that our last viewing on November 16 will be productive. Thanks again.
>

Click here to Reply or Forward

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In box Merribeth Bohanan <merrtbeth.bohanan@flpd2.com>

Starred to me

Important ------- Forwarded message ------

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Man, Nov 1, 2010 at 8:23 PM
Subject: lnfomnation needed
Drafts To: Chris Ellrich <chris.ellrich@flpd2.com>
Cc: Robert Friedman <robert friedman@flpd2.com>, Betty Fuentes <betty.fuentes@
Circles

Friends I am trying to declare the following witness matertal and I want to know what county
Family 1. Harry Deicher- 750 Hammond Drive, building 8, suite 100, atlanta
Acquaintances
2. John Tabor- I think Faye has the address and I believe he is in Fulton County.
Following
3. Jennie Johnson, 7635 Nesbit, Ferry road Atlanta

4. Paul Leroy Pruitt - 2273 Mother Grunde TT, Jamul, California

• Merribeth
5. Shawn Stewart............ Betty did not put an address on the synopsis. (404\925

• Betty Fuentes 6. Ned Dwight Coleman, 70507 4th Street, Covington, Louisiana

7. Connie Wagoner - 1635 Glenfield Drive, Lawrenceville, Ga

8. Casey Smith - 1042 Cathridge Road, Cleveland, Georgia

9. Chad Smallwood, 42 Maple Trace, Temple, Georgia

10. Victorine Rowe - 912 shadwlawn, Tampa

11. Beverly Lehmann- 1994 Brookview Drive, NW, Atlanta, Georgia

12. Pam Burnett- no address in Betty's memo

13. Heather Parrot, 4807 Colstreat Drive, Atlanta, Ga

14. Bob Preisler, 1353 Prospect View Ct., Lawrencevile, Georgia

15. Normand D. Collins, Brookhaven Close NE, Altanta Georgia

thank you very much

r::-:::J

Click here to &.PlY or Forward

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Important - - - - Forwarded message - - - -

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Tue, Oct 5, 2010 at 3:29 PM
Subject: Re: re-contact
Drafts To: Betty Fuentes <betty.fuentes@flpd2.com>
Cc: Robert Friedman <robert.friedman@flpd2.com>, Merribeth Bohanan <merribeth
Circles

Friends my only suggestion was that we need to recontact. I did not say what we should sa:
discussed how to do it or what to say. I just wanted to hear from the lawyers and yc
Family
On Tue, Oct 5, 2010 at 3:14PM, Betty Fuentes <betty.fuentes@flpd2.com> wrote:
Acquaintances
I agree that they might want this over and could possibly be ok with plea but havir
Following have to go through appeals

Sent from my iPadt

• Merribeth
On Oct 5, 2010, at 3:10PM, lnes Suber <ines.suber@flpd2.com> wrote:

• Betty Fuentes
i do not understand your comment but I am sure there is some reason for~

I'
On Tue, Oct 5, 2010 at 3:00PM, Betty Fuentes <betty.fuentes@flpd2.corr
can try but there is difference in not caring and them helping us get life

Sent from my iPad

On Oct 5, 2010, at 2:49 PM, lnes Suber <ines.suber@flpd2.com> wrote

> I think we need to attempt to contact the family again to see if we can
1 > I know Betty you tried to contact the Pastor and advised me not to try
I > But as i sit here at home preparing for the depos on Friday and readin!
dad Michael Sr. after the divorce. Can we not contact Michael Sr. to se<
go around that avenue also? Willie told me one day that the sons did nc
they should be contacted to see if we can put the pressure. WCTV got I
continuance. There is lot of work to do. Bill when are you available to d

:, Click here to Bru1!Y or Forward

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-·----·------
In box Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Starred to me

Important ------- Forwarded message - - - -

From: lnes Suber <ines.suber@flpd2.com>
Sent Mail Date: Man, Feb 7, 2011 at 10:13 PM
Subject:
Drafts To: Chris EUrich <chris.ellrich@flpd2.com>, Merribeth Bohanan <merribeth.bohanant

Circles
i am totally confused. I thought Shawn Matthews had seen Hilton at Joe Thomas a
Friends Brown. Read also the report. I am so possitive that it was joe thomas. but i am dot
Family [=1

Acquaintances
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
Following to me

------ Forwarded message - - -

From: lnes Suber <ines.suber@flpd2.com>
• Merribeth Date: Sat, Jan 29, 2011 at 2:53PM
Subject: Fwd: Hilton
• Betty Fuentes To: Robert Friedman <robert.friedman@flpd2.com>, Merribeth Bohanan <merribeth.

lookie lookie ... another witness

----- Forwarded message - - - -

From: lnes Suber <ines.suber@flpd2.com>
Date: Sat, Jan 29, 2011 at 2:52PM
Subject: Re: Hilton
To: Georgia Cappleman <CapplemanG@Ieoncountvfl.gov>

bug expert for what? I do not have a bug expert. Who are you talking about?

On Sat, Jan 29, 2011 at 2:50 PM, Georgia Cappleman <CapplemanG@Ieoncountyf

I Are you calling your bug expert? I have retained a bug expert in case we do go

----------------------------------·--------
Merribeth Bohanan <merribeth.bohanan@flpd2.com>
to me

-------Forwarded message----
From: lnes Suber <ines.suber@flpd2.com>
Date: Sun, Feb 6, 2011 at 1:56PM
Subject: Fwd: Hilton
To: "Saunders, Paula" <Paula.Saunders@flpd2.com>, Merribeth Bohanan <merribe

D 991
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ABUSED AND DEPRIVED CHILDHOOD:

Thomas Perchoux- EXTREME ADOLESCENT TRAUMA AND NEGLECT

Mr. Perchoux took him in as a type of foster parent after he was sent to Juv. Hall for
trying to protect his mother. His mother did not allow him back home b/c she would
have had to leave Gary's step dad. His mother lived in the same neighborhood, as Mr.
Perchoux at the time, and yet she did not even come and visit her son. His mother
neglected him and chose to stay with an abusive man rather than take her son back and
repair their relationship. He was worse than abandoned. It was such a traumatic event at
such a tumultuous time for a young man he spent a month in a psychiatric hospital.

Vicky Rowe- TRUMATIC BRAIN INJURY AND NEGLECT

She is a witness to a small boy running around in circles screaming in pain with his head
split open. She talks about a horseshoe chunk of his scalp hanging loose from his head.
She witnesses two towels soaked in a manner of minutes from the blood. She knew that
he was gone for several days in the hospital and had over 200 stitches to the injury. Gary
should not have been allowed to play with such a dangerous piece of furniture like a
Murphy bed in the first place. His mother was not paying attention to him.

Cleo DeBag- NEGLECT AND DISINTEREST BY HIS ONLY PARENT

Mrs. DeBag was the only person that was a constant in his young life. His biological
father wanted nothing to do with him. He did not spend time with him nor did he help
with the expense of raising him. His mother took little interest in him, his schooling or
his welfare. This is indicated by her decision to move him from state to state and school
to school at such a young age. It is impossible to have a sense of security as a child when
you attend 17 different schools in five years. He knew that he was a severely depressed
child when he went to the kitchen and got a knife to slit his wrist at such a young age.
She did not act on this knowledge in the least. She did not take him to see anyone or
even talk to him about what had him so upset. She was totally self absorbed. When she
was not unaware of him and his needs she was abusive to him. She had an inappropriate
relationship with him and blurred all the lines of a nonnal mother and son relationship.

Maria Castelli- WITNESS TO HIS MOTHER'S NEGLECT AND ABUSE

She thought that Gary's mother was not mentally stable. She has mood swings and was
very selfish and materialistic. She was cold to her son. She says that Gary not welcome
anywhere his mother lived and that she ignored him. He would send you photo's and
cards to keep his mother involved in his life but they were ignored. Mrs. Castelli says
Cleo did not want to talk about her son and would get agitated when asked about him.
Gary was left alone while his mother traveled with her husband, Nilo. Mrs. Castelli was
so self-absorbed that she did not offer her any of her brother's things after his death. She
was a witness to the extreme neglect and abuse Gary endured from his mother.

992
CONTRIBUTION TO COMMUNITY OR SOCIETY AS EVIDENCED BY
EXEMPLARY WORK, MILITARY, FAMILY, OR OTHER RECORD:

Sandy Herman Carr- She was in a relationship with Gary during a very difficult time in
both their Jives and yet he was a caring and devoted boyfriend to her. He was there for
her emotionally when she needed him. Be was a good friend to her and helped her to
deal with what was happening in her life at a time when his life was also in shambles.

Brenda Roberts- Mrs. Roberts describes Gary during the two years she knew him as laid
back and calm. He would take her out on dates. They would go to dinner and dancing.
He was polite and well mannered. He took her on picnics. She never felt uncomfortable
around him. He helped her move when she moved during their relationship.

Stephanie Durham- Ms. Durham was 13 years old when Gary came into her life. He
was dating her mother, Connie. He was fun and eccentric. He Jived with them. He
always had a happy personality. He was upbeat with her and was a positive influence to
her. He treated her like a daughter. He would take care of her when she was sick and
provided for her financially. He was nice to her mother. He would cook and they would
all sit down and eat together. She says the one who committed these crimes is a different
individual than the one she grew up with and knew back then. She knows that later in
life he was talking fast and seemed to be barely hanging on to his sanity.

PUT IN MILITARY RECORD SINCE NO WITNESS

SEVERE MENTAL DEFECTS DUE TO:

BRAIN INJURY, NO MENTAL HEALTH DIAGNOSIST OR TREATMENT,

FURTHER EXASERBATED BY A LACK OF PROPER MEDICATION AND
MONITORING

Jen Lee Hee- Ms. Hee talks about the decline of a man who was working and appeared
at least to be stable. Then she sees his dramatic decline. His appearance suffers as well
as his physical dexterity. She notices he cannot hold still and his speech is rapid as well
as his appearing to have difficulty with his movements.

Officer Kim- He noticed that during his encounter with Gary he was a little bit like
confused, a bit out of it. He appeared to be off his medication or crazy because of the
way his demeanor was on the initial approach and while talking to him; It was apparent
that he was unstable at this time in 2006.

Scott Gillespie- He saw Gary in June of 2007 at Coopers Creek. He appeared to be in a

mental trance. He was walking back and forth aimlessly. He saw him talking to the dog
and mumbling to himself. He also saw Gary sitting on a stump and rocking back and
forth. He said most people there talk to each other but Gary did not engage in any
conversation with Mr. Gillespie.

993
Mary Pat King - Ms. King encountered Gary while on patrol one evening in the App.
National Forrest. She said his appearance was poor and it was odd for someone to be
waiking in that area at that time. She stopped to talk to him to check on his welfare. She
found him to not respond the way she would expect. She he appeared to talk from
subject to subject almost like a rant. She stated in her log that his lack of cogent speech
lead her to conclude that he had emotional or mental problems. She jotted down in her
notes sig. 20 which is police code for someone who has emotional issues.

Dr. Delscher- In May of 2005 he began seeing this doctor. He found his name in the
phone book. He went to him b/c he was not able to get out of bed and go to work on a
daily basis he felt he could not function. Dr. Delscher believed that most ailments were
from allergies to dairy products and instructed Gary not to eat them. Dr. Delscher told
Gary that he had an autoimmune problem and Cilia Disease. He also diagnosed him with
Firbromyalgia. Dr. Delscher thought Gary needed an MRI and a PET Scan but he did not
send him to either. Dr. Delscher gave Gary vitamin B shots to treat his electric shock
type symptoms down his arms.

Dr. Delscher was aware that Gary had impulse control issues but did not address them.
He thought Gary was mentally ill but did not refer him to a mental health professional.
He appeared manic to him. Dr. Delscher knows that he should have tested Gary for Iyme
disease since on his first visit a tick bit was discussed and then again in 2006 another tick
bite. Dr. Delscher repeatedly mentions that Gary did not have insurance and that is why
he did not refer him for procedures or give him a better form of Ritalin because it was
more expensive.

Dr. Delscher prescribed Gary with various medications that were not appropriate for an
endocrinologist to prescribe per the Ga. Medical Board. The board discusses that there
were no screening for any psychiatric disorders performed. Dr. Delscher was sanctioned
for his improper treatment of Gary and told he could not practice psychiatry again or he
would be in violation of the terms from the Board and his license would be in jeopardy.

994
 10/22/2010 Public Defender, 2nd Judicial Circuit Ma ...
<< oacK w moox 1 Arcnove 1 Keporr spam 1 Ullete 1 1 MOve to Laoels
Starred
Sent Mail
Drafts Re: Evidence Viewing I Hilton Intox x
All Mail
Faye Dorn to show details 2:39 PM (14 minutes ago) i__~"P!]_=~
Andre Please add a scheduling as to the EVIDENCE VIEWING:
Bordt
Brundidge 11/4/10 Meet at Sheriff's office from 9-5:00
1119/10 Meet at the FDLE from 1-5:00
Chavez
11/10/10 Meet at the FDLE from 9-5:00
CMC's 11/16/10 Meet at the FDLE from 9-5:00
Gay
If you cannot attend, please provide someone to attend for you.
Hill
Hilton Thank you.
James Faye
Lane
On Fli, Oct 22, 2010 at 11:21 AM, Faye Dorn <faye.dorn@flpd2.com>
Legal issues wrote:
McDaniels 11/4/10- Meet at 9:00a.m. at the lobby ofthe Leon County
Sheriff's Office
Mise
11/10/10- Meet at FDLE at 9:00a.m. at the Front office.
Peacock 11/16/10- Meet at FDLE at 9:00 a.m. at the Front office. (Annie
Personal will be on vacation)
Prim
If you cannot attend, please provide someone to attend for you.
Richardson
3 morev j Thank you.
. Faye
Contacts
Tasks

Merlibeth Bohanan

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=Closed or Transfered
Mise From: Robert Friedman <robert.friedman@npd2.com>
Various Issues ~ Hilton Date: February 13, 20117:15:25 PM EST
To: Betty Fuentes <betty.fuentes@fipd2.com>
5 more.,
Subject: Re: I've had it

Chat
Betty, i know you are upset about delcher but I appreciate all the work you ha\.E!
done under difficult circumstances for eo,eryone.
Merribeth Bohanan
Sent from my !Pad

On Feb 13, 2011, at 6:28PM, Betty Fuentes <betty.fuentes@HQd2.com> wrote:

You are in'.isible.
Go -.Jsible
CaU phone I know eo,eryone Is sick of all these e-mal!s back and forth, so I will
Anthony Perez make it quick. I Just want to tell eo,eryone that it will take a miracle
Doncin<} Bull for me to eo,erwork Mitigation again. As I sit here on a Sunday
Faye Dam night preparing witnesses and the power point I am supposed to
delio..er I am appalled by what this mitigation has turned into. I can
Nicole Jamieson
not belieo..e that out of more than 170 people inter-.ie'Ned less that 5
1!-Jer,•!(c'\·~ld :Th'::lo\'1' h<:is ..
are coming to testrfy. Not only Is this true but the witness that Is
Sharon Fernandez the basis of ell our mitigation Dr. Deicher Is not confirmed to come
1':';'1 noi <:Jv1a!,e, try l0li~r either. It saddens me that wlli!e the guilt phase was going on OUR
Geoff Fischer client sat there alone and with no one speaking to him. This is
<~:·;:~l!i he!D@Hpd2.com where all of this has gone really wrong. This Is not a case waiting
chris.el!rich for an appeal this is a life going down the tubes. It is pathetic that
Jennifer Turner eo,eryone from birth has not helped him with all his Issues, and here
'Here are doing the same. We see him as e legal Issue not e
Lori Hocking
human being, how sad. I can't do this for the law. I am so sony.
Kendra Brown
Uta\ia Wiggins
IMPORTANT: The information contained in this e-mail message is
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Re: I've had it
In box Print all
Starred Merribeth Bohanan to Betty show details Feb 13
Tum off highlighting
Sent Mall Interesting
Drafts
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Clients MH
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Mise
On Feb 13, 2011, at 9:42PM, Betty Fuentes <betty.fuentes@ftpd2.com> wrote:

Various Issues - Hilton

5 moreT

Chat Begin forwarded message:

Search, add, or in\iite
From: lnes Suber <ines.suber@flpd2.com>
Merribeth Bohanan
Date: February 13, 2011 9;26:45 PM EST
To: Betty Fuentes <betty.fuentes@llpd2.com>
Subject: Re: I've had It
You are in\lsible.
Go l.isib!e
Call phone Betty. I stand by you. It will be different once u, MB and I work it.
Anthony Perez Because all three of us ha\e a heart. Hang in there. Your an
D.:wc!n(J L\uil absolute
Faye Dam asset to the capital unit e\en when we disagree on things and we
take
Nicole Jamieson stabs at each other.. I haw the highest respect for you and I low
your personality and your heart. It is affecting me as well deeply
Sharon Fernandez but you can see by the em ails the total fragmentation of the
defense.
Geoff Fischer
,,r,:e-:1! hefp@Hpd2.com On 2/13/11, Betty Fuentes <betty.fuentes@flpd2.com> wrote:
chris.e!lrich
I know everyone Is sick of all these e-mails back and
Jennifer Turner forth, so I'Nill make
Lori Hocking
Kendra Brown it quick. I just vvant to tell ewryone that it will take a
Uta\ia Wiggins miracle for me
to ewr worl<. Mitigation again. As I sit here on a
Sunday night preparing
witnesses and the power point I am supposed to
..,~,..,;....,,.! ........ ----n . . . . , . .........

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Interviewing witnesses Various Issues- Hl!ton X
Inbox Print aU
Starred Betty Fuentes to Nancy, lnes, Robert, me show details Jan 28 !_ Reply J
'----'-'-'--j Tum off highlighting
Sent Mail Apparently there m.s some issue with me saying that I could not
Drafts interdew witnesses. I am really so sick of this petty stuff. For
All Man anyone who question my work habits:

Clients MH I worked through the holidays lncludlng days when e\eryone else m.s on vacation.
= Closed or Transfered
Mise
Last Monday when we had a holiday I m.s intef'\riewing the snitch.

Various Issues - Hilton Thursday I work with my son sick until! had to take him to the
5 moreT
My son continues to be on be rest and I ha\e left him alone to work.
Chat
That Thursday I m.s looking at \ideas we ha\e had rore~.er and no one
Search, add, or imite had seen them. Luckly finding one we will be using in penalty.

Menibeth Bohanan Yesterday after working tlll7pm I had to take my daughter to tmh
urgent care and did not get home till 11pm.

You are im1sible. I fell in the shower bruised my shoulder and bled in my arm. Woke up
Go \1sible at 5:30 and went to Miami to interdew witness.
Call phone
My heart m.s beating funny fi"om all the things that I ha\e been dealing with.
Anthony Perez

Frankly, it is ridiculous that I ha\e to write thls.

Faye Dam
Nicole Jamieson
Reply to all Forward
Sharon Fernandez

~- ·
Geoff Fischer
en·\:~!i he!p@lipd2.com
chris.ellrich -·---·------·-- --···---·
Jennifer Turner
Lorl Hocking «Back to Search Results Archive Reportspam Delete Move to In box Labels More actions
Kendra Brown
<Newer 128 of hundreds Older)
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Re: Interviewing witnesses V(lr!ous Issues" Hl!ton X
In box Print all
Reply .. / ·····-
Starred lnes Suber to Betty, Nancy, Robert, me sflow details Jan 28
Tum off highlighting
Sent Mail yes, it is extremely ridiculous that you ewn haw to write this message sine nobody has
Drafts questioned your work habits, least of all me.
All Mail
I sent an email to you and asked if you could inteNew a couple of family members. You said
Clients MH that you had to go to Miami wtlich I appreciate on behalf of the client. And I am sure Rob
= Closed or Transfered
Mise
appreciates that you went do'Ml rather than him to secure the \ideo.

After you answered that you had to go to Miami, I then sent you a short short email asking if it
Various Issues Hilton
w was possible for you to do it afterwards sometime next weeik. You did not ansVYer. Instead you
5 more ... went to Rob atx>ut it.

Rob sent me an email and said that I should use Chris because you were busy with some kind
Chat
of po"-Ner point that you were working for atx>ut a month incorporating basically all the life of the
!Search, add, or in'.1te J client I know you had mentioned to me how difficult it had been to put this \ideo.
'---------------------
Menibeth Bohanan I wrote back to Rob and i said that these were family members that are wry sensitiw
'Nitnesses like the friends of dunlap and the daughter in law and that you had always insisted in
you being the one to contact these type of witnesses.
You are in'.(slble.
Go lisible The Guilt Phase comes before the Penalty Phase. Adding Jury Selection if we are able to pick
Call phone a jury it will probably be end of February before we address the Penalty phase.
Anthony Perez
~So nobody is questioning your work ethics. I newr had questioned those. I did 'Mite a memo
to Nancy bringing to her attention wtlat I perceiw a di\ision in the representation of Mr. Hilton,
Faye Oom because I still feel that way. The idea was to di\ide w-hat 'Ne all be doing but the idea was newr
Nicole Jamieson to be tenitorial about w-hat each of us is called to do for the client.

Sharon Fernandez ·I did not complain atx>ut your INOrk ethics and I newr said you did not work hard, since, the
I'm nv;· s;•':CJI\t~. hy !2ter penalty phase was build up based on at! of your contact with the witnesses and also In your
Geoff Fischer suggestion that we do the pet scan, my following your recommendation wtlich was not initially
cm~w help@Hpd2.tom
receiwd to good of an idea and finally turning to be the gist of the penalty phase. You ere also
wry instrumental in getting the Deicher order w-hich is the number one stuff in our facorin the
chris.e!lrich
case.
Jennifer Turner
Lori Hocking So if you haw a question as to w-hether I questioned your work habits, the least I can expect
Kendra Brown after we havfng 'NOrked for so long with you is for you to simply come to me and asked me
Lita'via Wiggins straight up and I oould ha\e gladly addressed the issue with you instead of finding yourself
'Mit!ng an email that you yourself consider petty. Moreowr, I also feel that if you could not
accomplish the project that I had asked if you could do, you should haw come to me and
addressed the issue 'Nith me rather than going to Rob. You haw newr been shy In doing this
before and I do not understand the difference now except that I think it is probably based in this
d!l..(sh.P.nP.ss lh~t WP. shnu!rl nnt h~\P.ln this tvne ofc:~sP..

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Issues with my son Vnrious Issues" Hilton X
In box Print all
Starre9 Betty Fuentes to Nancy, lnes, Robert, Paula show details Jan 23 l, _ Re=ply_L...I-j
_c_;_
Tum off highlighting
Sent Mail My son remains in the hospital. It is unclear as to what caused all
Drafts this. His white blood cells are still elewted. The spinal tap is
All Mail causing a horrible headache. The infectious disease doctor does not
have all the labs back to make determination. We are in Umbo as to
Clients MH what we .....-ere exposed to. They are keeping him until all cultures are
=Closed orTransfered back and his blood count in back to normal. We should hopefully know
more tomorrow when the full staff at the hospital is a\eilable. Nancy
Mise unless you feel differently, we ha\e been ad....; sed to stay away from
Various Issues Hilton v people as much as possible until this is figured aut. Please let me
5 mare't' know your thoughts on Menibeth and my return to wori<.

Chat
Reply to all Forward
! Search, add, or imHe
L. ''""' ''-'"'"'"''"• ''''""'~--•-•M•-••--·-
j
Merribeth Bohanan

I
•• -:1
You are im1sible.
Go \1slble
Call phone
Anthony Perez
U~;nelnq p,ul:
Faye Dam
Nicole Jamieson

Sharon Fernandez
l'rn nv\ nv;.-;;;ke, t1y :;;:.1<·'-'
Geoff Fischer
<:.':·· ;-p: help@flpd2.com
chris.ellrich
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Starred Merribeth Bohanan to Betty show details Feb 13
Turn off highligJ:illD.g
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Drafts
All Mall - - FoJWarded message - -
From: Paula Saunders <paula.saunders@Hpd2.com>
Clients MH Date: Sun, Feb 13, 2011 at 5:33PM
= Closed or Transfered
Mise
Subject: Re: our client
To: !nes Suber <ines.suber@fipd2.com>
Cc: Robert Friedman <robert.friedman@ftpd2.com>, Bill Mclain <bill.mclaln@Hpd2.com>,
Various Issues- Hilton Menibeth Bohanan <menibeth.bohanan@fipd2.com>
5 more'"

This was entirely unnecessary and a distraction in the midst of trial. My only ~XJint was that
Chat
you had no right to undermine Rob's decision and instruct Faye to contact a penalty phase
: Search, add, or imAte
'--------------···-· -···-·· -··-·-·---
J witness alxlut a subpoena, especially wtlen you had not discussed it With Rob. This is micro~
managing.
Menibeth Bohanan This has been a difficult and stressful case for all of us, most of all for you. I don't intend to
discuss this further until the case is mer.
I'm glad you got some rest this weekend.
You are inlJsib!e. Paula
Go \isibfe
Call phone On Sun, Feb 13, 2011 at 1:38PM, lnes Suber <lnes.suber@Hpd2.com> 'NI'Ote:
It appears that the use of the word "lead" has created somewhat of a concern at !east for
Anthony Perez
you, I do not know where the word came from and I do not know why it is used. The wrd
C.:~nci:•f) 6uH
"lead" does not mean I decide and you all obey. In all of my cases, the decisions ha\e been
Faye Dam made by the entire team, and you know that in a 100 percent of the times, the final and
Nicole Jamieson crucial decisions as to how to defend a case, ha\e been made by the team collecti\ely .And
this case was no exception, E\en Nancy participated in the decision of how to argue the
Sharon Fernandez case and how to the defense should be presented at least at the guilt phase. I 'view my role
during trial as wtlate\er the team decides or anyone decides, I obey and respect. E\en
Geoff Fischer during this trial, you told me a couple of times, in the middle of testimony "do not go there
;~ne;il he!p@flpd2.com lnes", and if you 'N<Int to know the thruth now I disagreed with your decision, but I deferred to
chris.ellrich your decision because I value your judgment, your legal expertise and your knowledge of the
law and more importantly, because it concerned an issue that you had argued, and you
Jennifer Turner were concerned that we lose the issue on appeal. During objections at the bench, you 'NI'Ote
Lori Hocking down a word to clue me as to additional arguments to make, and I made them again e\en
Kendra Brown though I knew I had already argued them. MB did the same and I included all those and in
Uta\ia Wiggins fact I moved for a mistrial because I deferred to her decision that she was making. She told
me thank you afteJWards. Rob made the decision that we mo\e for mistrial because of the
treatment of the judge towards me, and I deferred to his decision and suggestion even
though I did not want to face the wrath of the judge on me and the dlsparraging of me. This
is wtlat caused the judge to call me unprofessional which was printed In the paper the next
d1'!v _ I Rm ~urP. vnu know wtiRf it fP.P.Is whP.n nnP. is r:R.!IP.rl unnmfP.ssinnRI on R rP.r:orrl. Roh

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Re: state of mind at the guilt phase
lnbox Print all
Starred lnes Suber to Betty, Paula, Robert, me, bbubs, Nanc~ show details Feb 10
Tum off highlighting
Sent Mail He had not fought the e...;dence as he was not here. The state Is
Drafts pro>Jng that he Is here. Bein9 in tal!a is not important and it does
AI/ Mail to pro\€ that he did it. The defense has been. Look at the e...;dence
od wtlo did it. Can they pro\€ that he kidnapped her. Is he the one at
Clients MH the atm. Is the dna reliable because contaminated. Not enough
= Closed or Transrered
Mise
On 2/10!11, Betty Fuentes <betty.fuentes@fipd2.com> wrote:
> Here is my two cents ... before all this started I said they will
Various Issues ~ Hilton > introduce the confession and we had to prepare for two different cases
5 more ... > the problem now is that we ha\€ fought the e\.1dence as if he was not
> there or did not do it. If you change directions you would look
> foolish and it will kill \Vhate\E!r chance we might ha\€ on the penalty
Chat
> side, This is the problem \Vhen the defense is going against the
> truth, or covering it up. I thought from the beginning that if we
L~.~~.~~:_a~~~ . ~.~~n~A::_·-~·1 > ~Nent with that defense the state would be deflated and they would ha\€
Menibeth Bohanan >nothing. Now we are the ones deflated and looking foolish because they
> hava all this e\ridence in posters showing he was there. Frankly it's
> tooooooo late.
You are imtsible. >
Go visible >
Call phone >
>On Feb 9, 2011, at 11:30 PM, lnes Suber<ines.suber@Hpd2.com> wrote:
Anthony Perez
>
» the judge was stupid to allow the search and transport tapes ln. At this
Faye Dam » time, the client's state of mind will be placed at issue by the state. I
Nicole Jamieson » want all of you to know that i am entertaining an lmo!untary intoxication
>> derense at this time. the State has opened the door by the many out of
Sharon Fernandez >> contest statements that frankly at this time, it makes no difference as to
>> supeficial di>Jsion we have created In this case. We need to pool
Geoff Fischer » together and we all need to work together wtlether it on behalf of the
c:n:ai! help@Hpd2.com >> guilt or the penalty phase. It has been tough to deal with the e...;dence
chris.el!rich >> much less with the di...;siness in our team. Can I beg you one last time to
>> let work together? At this time, I am all for introducing e\4dence of
Jennifer Tumer » his mental state, and as such I would like to prova that he was impaired
Lori Hocking » as a way to dereat the statements. Please let me hear from all of you ..
Kendra Brov.rn >
Uta>Ja Wiggins

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Re: I've had it Various Issues -Hilton x
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Starred Betty Fuentes to Andy, bee: me show details Feb 13
Tum off highlighting
Sent Mail I'll sit dooo v.ith you tomorrow
Drafts
All Mail On Feb 13, 2011, at 6:54PM, Andy Thomas <andy.thomas@flpd2.com> wrote:

Clients MH
Betty,
=Closed orTransfered
Mise Can you please elaborate for me? Do you think the mitigation phase is b!ooo?
Various Issues ~ Hilton
Andy
5 moreT
Sent from my iPad
Chat

:~~:~~~:. .~~~~-~~-~~~!~______!
On Feb 13, 2011, at 6:28 PM, Betty Fuentes <betty.fuentes@flpd2.com>
WTOte:think t
Menibeth Bohanan
lri~;,,ibir,,.
I know e\eryone is sick of all these e-mai!s back and forth, so I v.-111
make it quick. I just want to tell e\eryone that it 'Nil! take a miracle
You are in\lsib!e.
for me to 8\ef wor1< Mitigation again. As I sit here on a Sunday
Go \.islble
night preparing v.itnesses and the power point I am supposed to
can phone deli\er I am appalled by what this mitigation has turned into. I can
Anthony Perez not bel!e\e that out of more than 170 people inter.ie'NE!d less that 5
Uar·c>~1(~ E\uH are coming to testify. Not only is this true but the v.-itness that is
Faye Dam the basis of all our mitigation Dr. Deicher Is not confirmed to come
Nicole Jamieson either. It saddens me that while the guilt phase was going on OUR
client sat there alone and v.ith no one speaking to him. This is
1Neekc:nd !11fJio>v !1,% .
vvhere all of this has gone really 'N!'Ong. This Is not a case waiting
Sharon Fernandez
for an appeal this Is a life going dooo the tubes. It is pathetic that
e\eryone from- birth has not helped him v.ith aU his Issues, and here
Geoff Fischer were are doing the same. We see him as a legal Issue not a
;:;:ne•'; help@flpd2.com human being, how sad. I can't do this for the law. I am so sony.
chris.ellrich
Jennifer Turner
Lori Hocking IMPORTANT: The information contained in this e-mail message is
pri~leged and confidential information and Is Intended only for the
Kendra Brovm
use of the lndi~dua! or entity named. This e-mail may also contain
Uta\fa Wiggins Protected Legal Information. If the reader of this message is not
the intended recipient, or not entitled to access this protected legal
information, you are hereby notified that any dissemination,
distribution or copying of this communication is strictly prohibited.
If you ha..e recei\ed this communication in error, please notify the

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Fwd: Couple of things
In box Print aU
Starred Merribeth Bohanan to Betty show details Jan 13 i Reply ! Tum off highlighting
Sent Mail FYI
Drafts
AU Mail - - Forwarded message - -
From: Robert Friedman <robert.friedman@ftpd2.com>
Clients MH Date: Thu, Jan 13, 2011 at 8:58AM
=Closed or Transfered Subject: Couple of things
To: Menibeth Bohanan <menibeth.bohanan@ftpd2.com>
Mise
Various Issues ~ Hilton
5 more. Upon reftection, 1will handle Deicher since he is going to lawyer up.
let's meet on 1/18@ 10 am for update on witness contact and lfst of non-stat mitigators.
Chat

L~~:~. ~~~:.-~-i-~~=-·-J
Menibeth Bohanan

Merribeth Bohanan
You are in\isible. leon County Public Defenders Office
Go 'isible 301 s.
Monroe Street, Suite 401
Call phone Tallahassee, Fl 32301
850-606-1023
Anthony Perez
:Janc.iilf.) Bull
IMPORTANT: The information contained in this e-mail message is pri>J/eged and confidential
Faye Dam
information and is intended only for the use of the indi..;dual or entity named. This e-mail may
Nicole Jamieson also contain Protected Legal Information. If the reader of this message is not the intended
recipient, or not entitled to access this protected legal information, you are hereby notified that
Sharon Fernandez any dissemination, distribution or copying of this communication is strictly prohibited. If you
ha\e received this communication in error, please notify the sender by replying to the sender
Geoff Fischer and then permanently delete this e-mail.
<"·: "tiil help@flpd2.com
chris.el!rich
Jennifer Turner
Lori Hooking
Kendra Brown
Uta\ia Wiggins

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3/28/2011 Public Defender, 2nd Judicial Circuit Ma ...
Mail ~ Documents Sites Video more T merrlbeth.bohanan@flpd2.com ! }, I Settings I~ I Sign out ::~:

!-----·---·--·-------"-
betty fuentes

Mail BusinessWeeKcom- Top News- Treasury 2-Year Note Fall as Yields Rise at Auction- 1 hour ago 'Neb Clip f.~'] i?]
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Tasks
<Newer 436 of hundreds Older>

New 'Nindow
Re: Proposed move
lnbox (1) Print aU
Starred Nancy Daniels to lnes, me, Faye, Betty, Chris sflow details 9/30110
Tum off highHghting
Sent Mail lnes, you ob\1ously wrote this e·maillate at night in a negatiw
Drafts frame of mind and I much of it is inaccurate and mischaracterized.
All Mail merely asked you to consider the mow; I did not insist that your
section go to the annex. I told you at the end of our con\ersation
Clients MH that I would wor1< on finding another section to go into the space,
= Closed or Transfered
Mise
That is the end of it.
I beliew I haw praised you and your di\1sion many times for the
miraculous outcomes you haw achie-..ed, and I haw personally told you
Various Issues ~Hilton many times how proud I am of you and the fact that our capital clients
5 more,. ha\e not receiwd the death penalty. I haw great confidence in e-.ery
aspect of your di\1slon's work.

Chat

Search, add, or in~te On Wed, Sep 29, 2010 at 11:35 PM, lnes Suber <ines.suber@ftpd2.com> wrote:
> Dear Nancy - Afer I talked to you about the possibility of capital mo\1ng
Merribeth Bohanan > to the little building accross the street, and the office's rationale that
> it will be good because we do not haw clients \1siting, I went and looked
> at the place just to see if i could be objecti-.e. The offices W"ere closed
You are im1sible. > and all i could hear were kids yelling and screaming. Is there a nursing
Go \1sibte > school downstairs? It was extremely hard with my hurt foot to step ewry
Cal! phone > single step up and down to get to the office space. MB thought it was e-.en
> crazy for me to go with the amount of pain I was haiJng but I told her that
Anthony Perez
> this is wttat I needed to do my health not'Nishstanding.
U;wc,in;.; Dull
>
Faye Dam > 1. My wttole staff declines and objects to the mo-.e because we want and like
Nicole Jamieson > our existing offices and nothing there compares to wttat we ha-.e. It will be
> a demotion for us to go there since W'e do now get paid for wttat we do. We
Sharon Fernandez > 'J.eN our offices as a small pri'J.Iege or at least I do since I ha-.e in my
!';~: r'o; ";'.<~<he, \ry lfo'\(.;-! > opinion, handled the job of t'MJ lawyers for three years, the office knows
Geoff Fischer >about it and not once I haw been praised for the job I do, All i ha-.e
~~r· ';;;: help@Hpd2.com
> recei-..ed from the office for the last three years are put downs and e-.en
> insinuaitions that I am mentally ill. I think I am beginning to belie-.e
chri.s.ellrich
> that i must be mentally ill to handle capital cases alone for o'.er three
Jennifer Turner > years now and successfully fn my opinion, i am sure not yours. We ~Jew our
Loti Hocking > offices as pri\ileges.
Kendra Brown >
Lita\1a Wiggins > 2. Faye and now I haw health issues with walking up the stairs. While
> those issues do not interfere 'Nith our job right now, it is '.ery unfair for
> you to require us to go up stairs. As you said to me, today, the last tfme
> you sprained your foot, you had problems for six months. I am in no way
> conceding that my foot problem affects my ability to be a good lav,.yer. I am
> onlv sRvin(] thl'll WRlkino Eln thP. stl'!lffi. C'.;invin(] R c:oun!P. of hnxP.s full m!oht

1005
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 3/28/2011 Public Defender, 2nd Judicial Circuit Ma ...
Mail Calendar Documents Sites Video ~ T merribeth.bohanan@flpd2.com 1A 1Settings I~ 1Sign out f;if

I betty fuentes
L--······-·········~------

Mall Featured Videos -Alex Pettyfer & Vanessa Hudgens Beastly Press Junket lnter.lew- Mar 1 Web Clip [:S \'.~J
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<Newer 520 of hundreds Older>

New window
Appreciation lunch various Issues~ Hilton x
lnbox (1) Print au
Starred lnes Suber to me, Chris, Betty, Faye, Robert, Julie show deta~f2!10·T·-·Rep!·y-T-·- l

ha~
Tum off highlighting
Sent Mail Okay. It Is time that I take you out to lunch and appreciate the hard work you done lately, !
Drafts including putting up with this week's high stress on my part and my constant bitching and
All Mail preaching about the condition of our files and how much work we ha~.e at hand. I am sure
tomorrow will be another bad day but maybe next week we can plan a break and go to
Clients MH lunch. Faye can I clear the calendar for Wednesday if e~.eryone can attend lunch? Otherwise
= Closed or Transfered
Mise
it will ha~.e to happen the v.oeek of September 13, JX>SSibly the 15th. Please let me know and
keep on working. we ha~.e two days off next v.oeek, and, I will be working from Tampa on Friday
so you will get a break fium me some next Vv"eek.
Various Issues - Hilton
5 more .. thanks for your hard work. This time the choices are Be!Ja Bella, Oli~.e Garden, Cabos or any
other place you wish to try. Let me know.
Chat
Goodnite all.

Menibeth Bohanan Reply to aU

You are in\.islb!e.

Go \.lsib!e
Call phone
Anthony Perez
U;:;nc.!n!J Bull
Faye Dam
Nicole Jamieson

Sharon Femandez

Geoff Fischer
~, ,..,;:.i~ help@flpd2.com

chris.e!lrich
Jennifer Tumer
Lori Hocking <Newer 520 of hundreds Older>
Kendra Brown
Uta\ia Wiggins Use fi"ee POP access to download your messages to Outlook or de\.ices that support POP. Leam more

You are currently using 395MB (1%) of your 25600 MB.

Last account activity: 2 hours ago on this COITPuter. Datails
~1h!ir: ll:lfAnriAr ?nrl.liirlir:i::!l rJr~11il M::!j!viAW' !>.l>'lnrl.cmt lh1rn nff ~hAIInlrlAr r:nn!>'lr.t rMn>'ln~r I h,:tf'.ir: HTMI I "'"'rn rrnr,.

1006
https ://mail.google.com/ mail/?rlz= 1R6 ... 1/1
 11/17/2010 Public Defender, 2nd Judicial Circuit Ma ...

Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Georgia Project
1 message

Jnes Suber <ines.suber@flpd2.com> Wed, Nov 17, 2010 at 1:30PM

To: Merribeth Bohanan <merribeth.bohanan@flpd2.com>

Thank you very much for the summaries. Now what I would like for you to do as it refers to those documents is
the following:
•Pull all the DNA reports and have Faye or Julie make copies of them so that I can compare to the ones in
Florida.
II pull the interview of tabor at both times and give to faye to copy and incorporate in my file named tabor.
1PJ pull hilton's statements to incoporate in my file ... georgia confusion.
4. Pull the highlighted reports because we either have to copy and give to Betty as it concerns mitigation but in
any ewnt Faye needs to make copies for me and label mitigation.
-1 basically highlighted what is important . Would you follow with that.

Using your book of evidence , 1.0lume one and two, and all these reports track down the evidence here. Where it
was, who collected it and when.
-the knife
-the purple sleeping bag
-blue nylon duffle bag
-the northface
the boots
and all the other evidence that connects him to the evidence. thanks.
-rei north face sleeping bag
-who took the swabs and blood sample from dandy
-who took the swabs and blood sample from hilton, I beliew the officers were present in February.'

1007
https:(/mail.google.com/mail/?ui=2&ik... 1/1
Filing# 80402686 E-Filed 11!vv,2018 02:28:30 PM
0~

IN THE CIRCUIT COURT OF THE

SECOND .nJDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs
CASE NO.: 2008-CF-697 A

DIVISION: C- HANKINSON

GARY MICHAEL HILTON, DEATH PENALTY

Defendant.

----------------~/
MOTION FOR ORDER DIRECTING
COURT REPORTER(S) TO TRANSCRIBE

COMES NOW, the Defendant, by and through the undersigned counsel, and

moves this Honorable Court, to enter an order directing that the 3.851 Post-Conviction

hearing held before the Honorable James C. Hankinson, on October 30-31,2018 and

November 1, 2018 be transcribed by the official court reporter and the costs taxed to

Justice Administrative Commission. The original and two copies of said proceedings are to

be filed with the Clerk of the Circuit Court, Leon County, Florida within forty-five days

of the date ofthe Court's Order.

RESPECTRULLY SUBMITTED,

//s !:J&,£,.,.:cQr/.~..-4 _ _ __
ROBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar Number 0144680
911 East Park Avenue
Tallahassee, Florida 32301
(850) 792-1111 Facsimile (850) 792-1113
ATTORNEY FOR DEFENDANT
COURT APPOINTED
alexlalramlawyer.com

1008
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy ofthe foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 30 I S. Monroe Street, Tallahassee, Florida 3230 I, Assistant State

Attorney Georgia Cappleman, SA02_Leon@leoncountyfl.gov, State Attorney's Office, Leon

County Courthouse, 4th Floor, 30 I S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 6th day of November, 2018.

Is/Robert A. Morris _ _ _ _ _ __
ROBERT A. MORRIS, ESQ.

1009
 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

vs CASE NO.: 2008-CF-697A

DIVISION: C- HANKINSON;;; : ..

GARY MICHAEL HILTON, DEATH PENALiiY

Defendant.
I
~:~:1 ;_~~t :·.: :'
ORDER DIRECTING COURTREPORTER(S) TO TRANSifihBE ~·:'
:>·::).J -r::~·

THIS CAUSE, coming on to be heard upon the Defendant's Motion For Order

Directing Court Reporter(s) To Transcribe of certain proceedings in this cause necessary for

appeal, it is hereby,

ORDERED AND ADJUDGED that the Official Court Reporter is directed to transcribe

the 3.850 Post-Conviction hearing held before the Honorable James C. Hankinson on October

30-31, 2018 and November I, 2018 in the above-styled cause. Said notes of said proceedings

shall be filed with the Clerk of the Second Judicial Circuit, Leon County, Florida, within forty-

five (45) days of the date of this Order.

Further, it is

ORDERED AND ADJUDGED that the cost of transcribing the above proceedings shall

be borne by Justice Administrative Commission, "f ~

November,2018. e
DONE AND ORDERED in Tallahassee, Leon County, Florida, this~ day of
~

JAMES C. HANKINSON
CIRCUIT JUDGE

Copies furnished to:

ROBERT A, MORRIS, ESQ.
ATTORNEY GENERAL'S OFFICE
STATE ATTORNEY'S OFFICE
OFFICIAL COURT REPORTER
PUBLIC DEFENDER'S OFFICE 1010
Filing# 81396343 E-Filed 11/29/2018 01:59:56 PM
1

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

CASE NO.: 2008-CF-697

STATE OF FLORIDA

vs. VOLUME I
(Pages 1 - 2 66)
GARY MICHAEL HILTON,

Defendant.
____________________ ;

PROCEEDINGS: EVIDENTIARY HEARING

BEFORE: THE HONORABLE JAMES C. HANKINSON

DATE: October 30, 2018

TIME: Commencing at 9:00 a.m.

Concluding at 5:11 p.m.

LOCATION: Leon county courthouse

Tallahassee, Florida

REPORTED BY: JULIE L. DOHERTY, RMR

Notary Public in and for the
State of Florida at Large

JULIE L. DOHERTY, RMR

Official Court Reporter
Leon county courthouse, Room 341
Tallahassee, FL 32301

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1011
 2

1 APPEARANCES

2 REPRESENTING THE STATE:

3 GEORGIA CAPPLEMAN, ASSISTANT STATE ATTORNEY

OFFICE OF THE STATE ATTORNEY
4 LEON COUNTY COURTHOUSE
TALLAHASSEE, FLORIDA 32301
5

6 and
7 JENNIFER KEEGAN, ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
8 PL-01, THE CAPITOL
TALLAHASSEE, FLORIDA 32399-1050
9

10 REPRESENTING THE DEFENDANT:

11 ROBERT A. MORRIS, ESQUIRE

911 EAST PARK AVENUE
12 TALLAHASSEE, FLORIDA 32301

13 and
14 LUCAS S. LANASA, ESQUIRE
LANASA LAW FIRM, LLC
15 POST OFFICE BOX 10791
TALLAHASSEE, FLORIDA 32302-2791
16

17 INDEX

18 WITNESSES: PAGE:

19 ANDY THOMAS

20 Direct Examination By Mr. Morris 11

Cross Examination By Ms. Cappleman 34
21 Redirect Examination By Mr. Morris 45

22 INES SUBER

23 Direct Examination By Mr. Morris 50

Cross Examination By Ms. Cappleman 101
24 Redirect Examination By Mr. Morris 136

25

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1012
 3

1 INDEX (CONTINUED)

2 WITNESSES: PAGE:

3 NORMAN M. CAMP (Telephonic)

4 Direct Examination By Mr. Morris 143

Cross Examination By Ms. Cappleman 172
5

6 BEATRIZ FUENTES

7 Direct Examination By Mr. Morris 179

8 HARRY K. DELCHER (Telephonic)

9 Direct Examination By Mr. Morris 197

Cross Examination By Ms. Cappleman 218
10 Redirect Examination By Mr. Morris 225

11 BEATRIZ FUENTES

12 Direct Examination (Continued) By Mr. Morris 230

Cross Examination By Ms. Cappleman 2 52
13 Redirect Examination By Mr. Morris 262

14

15 EXHIBITS RECEIVED

16 I-A through I-I and II-A through II-E 7

III 8
17 IV 237

18 STATE'S:

19 1 9

20

21 Certificate of Reporter 266

22

23

24

25

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1013
 4

1 PROCEEDINGS
2 THE COURT: Be seated, please, folks. we're here in

3 State of Florida v. Hilton, 2018 -- 2008-CF-697. Let the

4 record reflect the defendant is present with his

5 attorney. The matter is set for evidentiary hearing

6 today based upon the defendant's second amended motion

7 for post-conviction relief filed April 21st, 2017.

8 Any preliminary matters we need to take care of,

9 Mr. Morris?
10 MR. MORRIS: Judge, in discussions with Ms. Keegan
11 from the office of the Attorney General, and I think that

12 Your Honor -- I don't know what Your Honor's policies are

13 in 3.851s with respect to closing arguments and how the
14 court is go1ng to rule.

15 Ms. Keegan and I would like to request that we be

16 able, and I believe that the rule provides for us to be

17 able, to submit closing arguments 1n written form pr1or
18 to the court's issuance of an order. But I just wanted

19 to address that up front and make sure we were prepared.

20 THE COURT: well, I don't have policies on 3.851s

21 because we don't do that many of them.

22 MR. MORRIS: I figured.

23 THE COURT: I would envision that we have written

24 closing arguments instead of oral closing arguments after

25 a transcript has been provided. I've alerted the court

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1014
 5

1 reporters there is a 45-day limit on getting the -- you

2 can have a seat, ma'am.

3 MS. KEEGAN: Yes, Slr.

4 THE COURT: There 1s a 45-day limit on providing you

5 with a transcript and we would provide simultaneous

6 closings. That would be what I would env1s1on.

7 MR. MORRIS: okay. Fair enough. we just wanted to

8 make sure that we were on the same sheet of music with

9 Your Honor.
10 Secondarily, Ms. Cappleman, Ms. Keegan, and myself
11 have discussed exhibits. I took the liberty of drafting

12 and filed actually this morning a witness list, as well

13 as an exhibit list. First, on the witnesses, I've tried
14 to outline them in the order due to the fact that some

15 are going to be testifying via video to denote the

16 specific times that those people are scheduled, as they
17 are professionals and are having to get to different
18 court reporter locations.
19 I've done the best that I can, Judge, to estimate

20 the timing of witnesses to get us through each portion of

21 the days, recognizing that courtroom personnel need a

22 break and most folks will want to have lunch or whatnot.

23 I think that once we get to Thursday, the defense's

24 presentation will not be as long as it would appear and I

25 think that we'll be finished Thursday morning with

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1015
 6

1 Dr. Maddox, is go1ng to be my speculation. so I think

2 that we're probably going to be able to free up Friday.

3 In terms of exhibits, there are three exhibits.

4 Ms. Cappleman, are we okay on that one?

5 MS. (APPLEMAN: Yes.

6 MR. MORRIS: There are three exhibits, Judge. I've

7 provided a courtesy copy to Your Honor of what's been

8 marked as Defense Exhibit -- it's a Composite Exhibit I-A

9 through I, Exhibit II-A through E. And there are

10 contents that the State has had access to, I've had
11 access to, and we believe are relevant and pertinent.

12 And by stipulation of the parties, everybody 1s 1n

13 agreement as to their admissibility.
14 MS. (APPLEMAN: No objection.

15 THE COURT: All right. so let me take care of one

16 other matter. I had sent y'all an order of competency.

17 I think early on in the process, we had had Dr. Blandino
18 and Dr. Hudson appointed to examine Mr. Hilton for
19 current competency. I think it was agreed at the time

20 that I would not formally rule on that until we had

21 Mr. Hilton present.

22 It's my understanding, my recollection, that both

23 sides agreed to make a determination based upon those two

24 reports, which have been made part of the record. I

25 think it would be appropriate first for me to enter that

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1016
 7

1 order, unless somebody has a different recollection or

2 position at this point in time.

3 MR. MORRIS: No objection, Judge, to the court

4 entering an order finding him competent based on the

5 reports and based on the stipulation of the parties.

6 Your Honor had asked me to remind the court of it.

7 THE COURT: State?

8 MS. CAPPLEMAN: No objection, Your Honor.

9 THE COURT: so I will enter that order, Madam clerk.

10 so with that, then we will admit into evidence
11 Defense Exhibit Roman Numeral I-A through I, and Roman

12 Numeral II-A through E. Now on this disc I received a

13 disc. This is just a courtesy copy and you've given the
14 clerk the original?

15 MR. MORRIS: That's correct, Your Honor.

16 THE COURT: And does this contain documents?
17 MR. MORRIS: It does, Your Honor.
18 THE COURT: All right. They will be admitted.
19 (Defendant's Exhibit Nos. I-A through I-I and II-A
20 through II-E received in evidence.)
21 MR. MORRIS: And, Judge, the same 1s go1ng to hold
22 true for Defense Exhibit III. And so Your Honor is
23 aware, it's the PowerPoint presentation that became at
24 1ssue 1n the penalty phase that Ms. Fuentes had prepared

25 pr1or to her departure. But by stipulation of the

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1017
 8

1 parties, it would be admitted into evidence, Judge.

2 MS. (APPLEMAN: No objection.

3 THE COURT: All right. so it will be admitted also.

4 And you've also provided that to the clerk?

5 MR. MORRIS: I have, Judge, just now.

6 (Defendant's Exhibit No. III received in evidence.)

7 MR. MORRIS: And then last but not least, the last

8 thing that I can think of, Judge, is we did perpetuate

9 Paula saunders's testimony. I believe that the State has

10 provided the court a copy in advance. Neither
11 Ms. Cappleman nor I have an objection to the court

12 reviewing that and listening to that outside the presence

13 of the courtroom on the court's own time, however Your
14 Honor sees fit to handle it and deal with it.

15 THE COURT: okay. It was my understanding that was

16 the agreement and so I have reviewed that transcript.
17 MS. MORRIS: Yes, Slr.

18 MS. CAPPLEMAN: Judge, I've marked that disc with

19 the transcript, also digitally attached to the disc, as

20 State's Exhibit 1 and I would ask to move that into

21 evidence at this time by stipulation.

22 THE COURT: State's Exhibit 1. And I missed --

23 there were two discs and I wasn't crystal clear what

24 the -- why there were two discs.

25 MS. CAPPLEMAN: There should only be one, Judge.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1018
 9

1 There is a video and audio recording and a synchronized

2 transcript. so I'm not sure how you ended up with two.

3 THE COURT: There's something just labeled video

4 player. I don't know what that was. Maybe they were

5 thinking maybe I didn't have the software

6 MS. (APPLEMAN: Oh, yes, sir.

7 THE COURT: correct software to play it or

8 something. Anyway, I didn't pay much attention to it

9 because it ran so things were good. so I have reviewed

10 that yesterday. And it's my understanding State's
11 Exhibit 1 will be admitted?

12 MR. MORRIS: Yes, sir.

13 THE COURT: By agreement?
14 MR. MORRIS: Yes, Slr.

15 (State's Exhibit No. 1 received 1n evidence.)

16 THE COURT: All right. so those matters will be
17 taken care of. okay. Any other preliminary matters,
18 Mr. Morris?

19 MR. MORRIS: Not from the defense, Judge.

20 MS. (APPLEMAN: No, sir.

21 THE COURT: I did have a question for you,

22 Mr. Morris. There was on the second amended, you JUmp

23 from claim 5 to claim 7. I didn't know whether that was

24 intentional or just a typographical.

25 MR. MORRIS: My recollection, Judge, 1s it was a

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1019
 10

1 typographical error. And I think the AG's office

2 actually spoke to that in one of their responses that

3 it's misnumbered.

4 THE COURT: okay. so we will have claims 1 through

5 7 then. I'll renumber what you have numbered in your

6 motion as 7 would be 6. The failure to preserve cause

7 challenges will be claim 6 and the cumulative error claim

8 will be claim 7.

9 MR. MORRIS: Yes, Slr.

10 THE COURT: Everybody on the same page?

11 MR. MORRIS: Yes, sir.

12 MS. CAPPLEMAN: Yes, sir.

13 THE COURT: Okay. All right. Anything else
14 preliminarily, Mr. Morris?

15 MR. MORRIS: No, sir.

16 THE COURT: State?
17 MS. CAPPLEMAN: No, Your Honor.
18 THE COURT: Do you wish to make any open1ng
19 statement, Mr. Morris?

20 MR. MORRIS: I don't see the value of it, Judge.

21 THE COURT: Ms. Cappleman?

22 MS. CAPPLEMAN: No, sir.

23 THE COURT: All right. You can call your first

24 witness.

25 MR. MORRIS: The defense would call Andy Thomas.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1020
 11

1 THE COURT: If you'd face the clerk and be sworn,

2 please, s1r.

3 whereupon,

4 ANDY THOMAS
5 was called as a witness, having been first duly sworn, was
6 examined and testified as follows:
7 THE COURT: Have a seat. slide up to the

8 microphone, please, sir.

9 DIRECT EXAMINATION
10 BY MR. MORRIS:
11 Q can you state your name for the record, please?

12 A Andy Thomas.
13 Q Spell your last name.
14 A T-H-0-M-A-S.
15 Q Mr. Thomas, how are you currently employed?
16 A Since January of last year, I've been the Public
17 Defender for the Second Circuit.
18 Q The elected Public Defender 1n this circuit?
19 A Yes, sir.
20 Q And then prior to that point 1n time, how have you
21 been employed previously?
22 A since 2010 --well, I'm sorry, s1nce 2000, I've been
23 1n the office, the Public Defender's office. And I was chief
24 Assistant about 12 of those years, and I was at the time I
25 became Public Defender. I was at the time of the Hilton

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1021
 12

1 trial.
2 Q okay. Prior to com1ng to the office of the Public

3 Defender -- I should ask, when did you become licensed to

4 practice law in the state of Florida?

5 A 1981.

6 Q what did you do between '81 and com1ng to the Public

7 Defender's Office?

8 A Many things. I started in the Public Defender 1n

9 Tampa, went to the Attorney General in Tallahassee, went to
10 the Public Defender in Tallahassee under Mike Allen. I then
11 went to prosecute in Sarasota. I then went to Quincy working

12 for Mike Allen aga1n. I then went to private practice for ten
13 years. I then went to CCRC North between '97 and 2000 doing
14 capital post conviction.

15 And then in 2000, I returned to the Public

16 Defender's office. And but for about a four month foray into
17 private practice that was misguided, I've been here.
18 Q okay. Gotcha.
19 THE COURT: And let me interrupt. And I apologize
20 for interrupting, but I just happened to think of
21 something. Does either side wish to invoke the rule of
22 sequestration?

23 MR. MORRIS: Ms. Cappleman and I discussed it and,

24 no, Your Honor.

25 THE COURT: okay. The State 1s 1n agreement with

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

1022
 13

1 that?
2 MS. CAPPLEMAN: Yes, Slr.

3 THE COURT: All right. I'm sorry, just wanted to

4 make the record clear.

5 MR. MORRIS: Judge, you normally do this. while

6 we've got a pause, does Your Honor wish to admonish the

7 witness that attorney-client privilege or things of that

8 nature are waived based on the pleadings?

9 THE COURT: Yeah, I wasn't aware whether Mr. Thomas

10 was going to be dealing with something of that nature.
11 But, Mr. Thomas, we may be discussing matters that

12 ordinarily would be attorney-client privilege. Based

13 upon the defendant's pleading, he has waived the
14 attorney-client privilege. so that privilege has been

15 waived.
16 MR. MORRIS: Thank you, Judge.
17 THE WITNESS: That's to the extent the claims
18 involve that; correct?
19 THE COURT: It's been waived, thank you.

20 THE WITNESS: It's not waived as

21 BY MR. MORRIS:

22 Q so you started at the Public Defender's office here

23 under Nancy Daniels when?

24 A 2000, October of 2000.

25 Q And then for you said about a ten, 12-year period,

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1 you served as the Deputy chief?

2 A I don't remember exactly when Gene Taylor passed, I

3 believe it was 2003. And so shortly after that, I was interim

4 and then I was made chief Assistant I think in 2004.

5 Q And so you had that role and that capacity 1n

6 when Mr. Hilton's case arose?

7 A Correct.

8 Q All right. Tell me, what was the structure of the

9 capital unit at the time that Mr. Hilton's case arose?

10 A Pretty much the same as it is now. The capital unit

11 was a separate division. Ms. Suber ran that unit. she was

12 the head of it. I did not supervise Ms. Suber. Nancy Daniels
13 supervised Ms. Suber, as currently I supervise Gail Anderson,
14 who is my chief of capital. she reports directly to me and my

15 chief Assistant does not supervise that division directly;

16 although we're there for advisory purposes.
17 Q okay. was there a structure in place where
18 particular personnel were assigned to that division or that
19 unit on a consistent basis, or did it fluctuate, or how did

20 that work?
21 A well, there was a core team which involved Ms. Suber

22 and second chairs and other co-attorneys that were assigned to

23 the division. chris Ellrich was always the fact investigator.
24 Betty Fuentes was the mitigation specialist. And so you
25 had -- the attorneys would sometimes change, the teams would

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1 sometimes expand.
2 Frequently Ines, Ms. Suber, was -- she liked to use

3 Paula saunders or some people from appeals occasionally to

4 help with the cases. And so it was fluid, but there was a
5 core team.

6 Q okay. You were not involved 1n that team though;

7 correct?
8 A I was not.
9 Q So were you involved in any staff meetings or things
10 of that nature, or 1n any interface face-to-face factually
11 about Mr. Hilton's case?

12 A No.
13 Q That would have been between Ms. Daniels as well as
14 whomever the team members were?

15 A It was primarily among the team members, but I would

16 assume that Ms. Suber and Nancy spoke. I was not privy to
17 that.
18 Q During the pendency of Mr. Hilton's case, did you
19 ever become aware of any issues related to the preparation of

20 Mr. Hilton's defense?

21 A Yes.

22 Q Tell me how you became -- what you became aware of

23 and then we'll talk about how you became aware of it.

24 A There was concern about some late-night e-mails and

25 correspondence among the team members. It appeared that there

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1 was some pan1c go1ng on, was the only way to put it. I did
2 not rece1ve these e-mails directly, I wasn't in the loop, but

3 Nancy would show them to me occasionally and asked what I

4 thought was go1ng on and I would tell her.

5 Q You've had the opportunity to review Defense

6 Exhibit I-E, which are e-mails from a public records request
7 from the office. Do those, or portions of those, encapsulate
8 some of the late-night e-mails?

9 A Yes. I only recall one 1n particular that I was

10 concerned with, but I'm sure I saw more. And they appear to
11 be authentic and from our files.

12 Q okay. And so --

13 THE COURT: Run that exhibit number by me one more

14 time, please, Mr. Morris. I didn't quite follow you.

15 MR. MORRIS: I-E.

16 THE COURT: so Roman Numeral I-E?

17 MR. MORRIS: Yes, s1r.
18 THE COURT: Thank you.
19 MR. MORRIS: Yes, s1r.
20 BY MR. MORRIS:
21 Q And when you reference the -- Ms. Daniels brought
22 the e-mail to your attention. You weren't included in the

23 e-mail originally?
24 A Actually, it was -- if I'm not mistaken, it was John
25 Tomasino, who was our administrative director. Nancy and I

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1 met 1n Nancy's office. She called me 1n and showed me the

2 e-mail and we had a discussion.

3 Q All right. And the discussion, what was the nature

4 of the discussion?

5 A I wish I could recall specifically, but the nature

6 of the discussion was concern. But at the same time, Nancy
7 said she would handle it, she would talk to Ms. Suber. They
8 had a very close relationship. And she said, I'll handle
9 this. And that's all I really remember about it, to tell you
10 the truth.
11 Q All right. And let me back up just to make sure

12 that I've got the context correct. The late-night e-mail had
13 been sent by Ms. Suber to other members of the team; correct?
14 A Yes.
15 Q And so the concern was -- the content of that e-mail
16 gave r1 se to concern for Ms. Daniels and so she's consulting
17 you as her second 1n charge to what should we do to fix this?
18 A Yes.
19 Q All right. And then it 1s

20 A well, she really wasn't asking me what to do to fix

21 it because she knew what she was going to do to fix it, but
22 she was asking me what my impression was, what would generate
23 that e-mail.

24 Q And what was your impression?

25 A My impression was that, No. 1, I knew go1ng into

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1 this trial that our capital team was exhausted from prev1ous
2 cases. They had worked on many, many, many cases very hard.

3 The hours they put into Mr. Hilton's case were innumerable.

4 And so to a great extent this is just exhaustion. And you're

5 starting out a capital trial and you're already dead tired,
6 okay, is what it looked like.
7 It was also a very difficult case. It was a hard
8 case to psychologically approach and think you could wrap your
9 arms around it and come out with a good result. okay. And so
10 I think a lot of that led to where we were.
11 Q And you indicated that Ms. Daniels's solution was

12 that she was going to speak with and/or counsel Ms. Suber?
13 A That's my recollection, yes, s1 r.

14 Q were you party to those conversations between

15 Ms. Daniels and Ms. Suber?

16 A Not at all.
17 Q Did you have any hands-on involvement from that
18 point forward with the trial team, the trial structure, or
19 anything like that?

20 A I had conversations with Rob Friedman, Merribeth

21 Bohanan, Betty Fuentes, maybe Paula saunders 1n pass1ng.

22 Q And when you say, "in passing," is it shop talk 1n

23 the sense of, hey, I've got this evidentiary issue, what do
24 you think about it? Or 1s it discussion about, this person 1s
25 doing this in the team and I don't like it?

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1 A with Paula, I don't even remember what we talked

2 about. It couldn't have been substantive. I talked to

3 Ms. Bohanan, I talked to Ms. Fuentes and I talked to Rob

4 Friedman about substance.

5 Q okay. Do you have any particular recollection as to

6 what the substance was? I recognize it's been some time, but.
7 A To try and put it chronologically, Mr. Friedman,

8 unsolicited, discussed with me his theory of putting on the

9 sentencing phase or the mitigation phase in Mr. Hilton's

10 trial. And he basically said he was going to streamline it.
11 Q okay. And when you say "chronologically," is that

12 the first question or the first interaction that you're having

13 with the team members 1n chronological order?
14 A I believe so.

15 Q And what was your impression as to why the case

16 would be, quote, streamlined?
17 A I didn't really know factually, but I can tell you
18 what I thought, okay

19 Q Please.

20 A -- what my impression was. Mr. Friedman is not very

21 good with lay witnesses and he's not very good in connecting

22 with witnesses, okay. He prefers experts. That's what he

23 thinks he's good at.

24 Q Let me interrupt you for just a minute. Fair

25 statement that Mr. Friedman to that point, he didn't spend a

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1 great deal of time 1n a trial courtroom; did he?

2 A No, he was in appeals.

3 Q Sharp mind, but most would agree not necessarily the

4 person with jury appeal?

5 A He worked for carey Haughwout 1n the west Palm Beach

6 appellate office before we hired him actually at CCRC, but

7 he didn't stay there long. And he then went to Nancy's

8 appellate division and never did trial work that I'm aware of.

9 Q okay. And so back to where we were. Your

10 impression was that he felt that he was good at dealing with

11 expert witnesses?

12 A He was comfortable with expert witnesses. what Rob

13 basically confided 1n me was: I want to make a record; I
14 don't think I have to put on all this stuff to make a record.

15 Q okay. And were there any discussions about

16 specifics in terms of what witnesses would be called or
17 anything with you?
18 A Not-- not that I recall. I just remember him
19 say1ng that I can get all this lay testimony in through the

20 expert because he's going to rely on what these lay witnesses

21 said so I don't really think I need to put them on. I

22 disagreed. But I didn't fight with him. It's not my case and

23 I wasn't 1n the middle of it.

24 Q So you -- first and foremost, I don't suppose you

25 had a very good position to be able to evaluate what witnesses

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1 should be put on because you weren't aware of the scope or the

2 breadth of the witnesses; accurate?

3 A Totally accurate.

4 Q And so Mr. Friedman 1s making an express1on to you

5 that we want to streamline this to the experts. And then if
6 I'm hearing you correctly, the reason that he rationalized
7 streamlining was based on his belief that he'd be able to get
8 the lay witness testimony or evidence in through the
9 particular experts?
10 A That's correct.
11 Q why did you disagree?

12 A well, for a lot of reasons, but, No. 1, an expert

13 witness talking about a diagnosis or their impression of a
14 defendant is not the same as a lay witness testifying 1n front

15 of a JUry and saying, when Gary Hilton was seven years old
16 this happened, or-- make it real, okay.
17 One thing we know in capital work 1s that you have
18 to have a narrative, you have to have a story, and you have to
19 weave it together cohesively for the jury to respond to it,
20 for the jury to resonate with it. And the worse the case, the
21 stronger your narrative better be in explaining to the jury
22 why you should not kill this man.
23 Q Did you voice your disagreement to Mr. Friedman?
24 A Probably not. I probably -- I may have said, you
25 sure? I may have, like that, but I did not interject myself

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1 and say, I think you ought to do it this way. It wasn't my

2 case and I didn't know what he was dealing with. I only

3 learned later how much they actually had.

4 Q when you say, that they actually had?

5 A The team.
6 Q And by -- characterize for me by what they actually
7 had? Are you talking about the scope and expanse of lay
8 witness testimony who would provide information to the jury?

9 A when Ms. Fuentes -- and chronologically that's what

10 happened next, I believe, is that I spoke with Ms. Fuentes.
11 And she was absolutely devastated, irate, sad, disappointed, I

12 don't know. There's no word you can put on it. she looked
13 like somebody had just killed her mother.
14 Because she had all this information and she said,
15 Rob 1S not go1ng to use it. Mr. Friedman 1S not go1ng to use
16 it. And I go, he told me he was going to streamline, but I
17 didn't realize to the extent that I was getting from

18 Ms. Fuentes. And then she just kind of did a laundry list of
19 some of the things they had that weren't being used, like
20 videotaped preserved testimony, any number of things.
21 And, you know, I remember saying, document your
22 file, there's going to be a 3.851, this is coming back. Just
23 make sure you document your file. And then it got to the
24 point where Ms. Fuentes felt like she had to walk out on the
25 case because she could not condone what was happening. And I

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 had to, 1n Nancy's absence, play the heavy because I don't

2 believe Nancy was available and that's why Ms. Fuentes was

3 probably talking to me.

4 And I said, if you walk out, you're not walking back

5 1n because investigators don't tell lawyers how to try cases

6 and you don't abandon a case midstream. we just can't do

7 that. And that's how it ended.

8 Q ultimately, your appeals to Ms. Fuentes were

9 unsuccessful and she opted to res1gn; correct?

10 A she did, she did.
11 Q Let me back up to the chronology issue. Do you know

12 when you had this encounter with Mr. Friedman from a time line
13 perspective?
14 A It was pretrial; it was pretrial. It was before

15 even the guilt phase of the trial began, or the

16 guilt/innocence phase.
17 Q can you give me any time line, how close we were to
18 trial?
19 A very close.

20 Q so within a couple of weeks or months?

21 A I would say a couple of weeks.

22 Q so we're a couple of weeks before trial and

23 Mr. Friedman has arrived at the conclusion that he's going to
24 streamline things, expresses that to you, and that he's going
25 to abandon calling lay witnesses or other collateral witnesses

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1 that may be able to shape, as you put it, why Mr. Hilton
2 shouldn't be killed?

3 A what he told me was, I'm go1ng to rely primarily on

4 the experts. I think I can get most of this in that way. I'm

5 just going to make a good record.

6 Q And then your discussion with Ms. Fuentes, do you

7 have a recollection as to when that occurred?

8 A It was in the middle of the penalty phase, as I

9 recall.
10 Q okay.
11 A Either that or right before it started. But it

12 seems like it was 1n the middle of it.

13 Q Tell me you say that Ms. Fuentes was irate. Tell
14 me, describe demeanor and conversations. I mean, are we

15 talking about a calm conversation or are we talking about

16 something at the other end of the continuum?
17 A Ms. Fuentes is always calm.
18 Q okay.
19 A okay. she's not a hysterical person. so she was

20 speaking in a normal voice most of the time. But as it went

21 on, she became more excited and a little more animated.
22 she was crushed. That's the only word I can use. I
23 mean, she had spent literally thousands of hours prepar1ng
24 this mitigation case

25 Q All right.

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1 A -- and then at the last minute to have it basically

2 just ignored. I totally sympathized with her. I totally

3 believed her. And I think if I'd been doing it, I probably

4 would have done it her way.

5 Q In terms of thematically, and I'll come to some

6 additional questions about this in a few moments, but
7 thematically were you in any discussions or were you pr1vy to
8 what strategy was to be employed in terms of the presentation
9 to the jury during the guilt phase, and then as it would
10 relate to the penalty phase? were you involved 1n any of
11 those discussions?

12 A Not really. I knew Adderall was involved. I knew

13 broad strokes. That's all I knew.
14 Q But suffice it to say that you weren't sitting down

15 and having a discussion of, let's fight everything tooth and

16 nail in the guilt phase, and then if we lose that, then we'll
17 make this particular presentation; versus, let's weave 1n some
18 of the mitigation into the guilt phase in anticipation that we
19 may end up -- may well end up 1n a penalty phase? You didn't

20 have any of those particular discussions?

21 A No. I mean, I certainly would not have done the
. .
22 former and I would emphasize the latter. I mean, 1n my v1ew,
23 if I was evaluating Mr. Hilton's case 1s I would soft-pedal
24 the guilt phase, foreshadow my mitigation, humanize Mr. Hilton
25 to the max, set the jury up for the rest of the story about

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 who he truly is.

2 And then I would have put on everything but the

3 kitchen sink in sentencing, in the penalty phase, to show him

4 as a little boy, show him -- my theory is that you don't want

5 the grown man sitting over here to be who's being judged.

6 Q You would not have -- have you had any interactions

7 with Mr. Hilton ever, any conversations with him?

8 A I've never had a conversation with Mr. Hilton. I've

9 been around counsel table a couple of times during the trial

10 because it turned into a circus and I went down there to take
11 a look at it, to tell you the truth.

12 Q So a conversation with Mr. Friedman shortly before

13 guilt phase, a conversation with Ms. Fuentes early in penalty
14 phase or mid-penalty phase, and then you may have made mention

15 that you had discussion or conversation with other

16 individuals?
17 A Merribeth Bohanan. she was in the capital division
18 at that time, I believe, as a second chair. There were about
19 five lawyers involved in this thing at this point and then

20 investigators and mitigation. So every time you see the team,

21 you saw like a football team around Mr. Hilton.

22 But Merribeth came 1n -- excuse me, Ms. Bohanan came

23 1n. she worked very closely with Ms. Fuentes with the
24 mitigation. I believe that Ms. Bohanan had a very good
25 relationship with Mr. Hilton. I think she talked to him quite

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 a bit.
2 And she came in and said she wanted to file a motion

3 to withdraw and withdraw from the team also. And I said, you

4 don't need to file a motion to withdraw because you're not

5 counsel of record, you're just on the team. But if you feel

6 like you can't contribute anymore, go home. And I believe she

7 went to her family of origin or something and left.

8 Q okay. And let me back up. Because when you had the

9 conversation with Ms. Fuentes, you ended up that de facto you

10 were 1n charge because Ms. Daniels was not present in the
11 office?

12 A That's my recall. I don't think I would have been

13 dealing with that directly the way I did if Nancy was there.
14 I just cannot foresee me doing that.

15 Q You don't have an independent recollection of where

16 Ms. Daniels was or whether you had the opportunity to consult
17 with her?
18 A I don't think I -- I don't think with Ms. Fuentes I

19 would have consulted with her if she wasn't in the office

20 because it was too immediate and it was an emergency in my
21 VleW.

22 Q understood.

23 A I had to make the call.

24 Q okay. And did the same hold true as it related to

25 your discussion with Ms. Bohanan?

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 A No. I mean, I could have -- that wasn't something

2 that was vital to the same extent as Ms. Fuentes. But at the

3 same time, I thought there were too many lawyers on the case

4 anyway. And if she wasn't putting on witnesses, and she was

5 very aligned with and allied with Ms. Fuentes about the view

6 of the case, it was probably better that she wasn't there if

7 she was unhappy and disagreeing with what was happening.

8 Q was your -- what was your understanding of her

9 desire to withdraw from the case? was it that she believed

10 that the office of the Public Defender needed to withdraw from
11 the case or that she needed to withdraw herself from the case?

12 A I think what Ms. Fuentes and Ms. Bohanan both

13 believed was that I should have charged down, stopped the
14 trial, removed Rob from his lawyering position and asked the

15 Judge to continue the case and put a different team together,

16 or something. Or something extraordinary, but.
17 Q Did you make any effort to do that?

18 A of course not.
19 Q okay. If you don't mind, explain why not.

20 A A, I did not know the case to any degree to make

21 that call. I philosophically disagreed with Mr. Friedman; I

22 philosophically agreed with Ms. Fuentes and Ms. Bohanan. But

23 I was not about to interject myself into a capital trial. I

24 thought that was dangerous. And the time to change the team

25 would have been before the trial started, not in the middle of

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 it.
2 Q No doubt. And so your perception of Ms. Bohanan's

3 expression of withdrawing was an encouragement that you do

4 something to restructure; and if you don't, then I've got to

5 get out of here?

6 A I think it was more just being in solidarity with

7 Ms. Fuentes, more than anything else is the way I interpreted

8 it. I interpreted her being disappointed with where the case

9 was going, but also she agreed with Ms. Fuentes about all the
10 information that should be coming out.
11 Q And the result of those disagreements mid-trial,

12 mid-penalty phase, was the resignation of Ms. Fuentes, as well

13 as the resignation of one of the lawyers associated with the
14 penalty face, Ms. Bohanan?

15 A she didn't res1gn.

16 Q okay.
17 A she did not res1gn at that time. she wasn't with
18 the office real long after that, but she in fact did come back
19 to work. she just left the trial.

20 Q when you say that she didn't res1gn, was she asked
21 to res1gn or was she terminated based on conduct that occurred
22 during the course of the trial?
23 A I didn't, no.
24 Q Are you aware of the circumstances related to her
25 departure from the office?

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 A Not explicitly.
2 Q Be that as it may, shortly after the trial

3 concluded, Ms. Bohanan elected to part company with the office

4 of the Public Defender.

5 A Yes. That's my recall, I mean, aga1n.

6 Q During the chronological conversations or

7 interactions that you had with the defense team, were there

8 any others after having spoken with, we've got Mr. Friedman,

9 Ms. Fuentes, Ms. Bohanan, any others that you can recollect?

10 A My next memory was some side discussions with Nancy

11 that I don't recall the content, and then attending the

12 Spencer Hearing.
13 Q You used the word "circus" to characterize what was
14 happening midstream 1n the trial. Explain why you utilized

15 the word "circus."

16 A well, I felt sorry for the client. He's sitting 1n

17 a chair and there's all these people buzzing around him. And
18 they're talking over each other and they're talking-- I don't
19 know how anything was comprehensible. That's what it looked
20 like to me from the outside.
21 Q okay. Meaning that you came down -- you didn't

22 insert yourself into the case, but you came down to make

23 observation and those were the observations and conclusions?

24 A Yes.

25 Q okay. At the conclusion of the Hilton case and

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 maybe after your assumption of the role as Public Defender of

2 the circuit, were any changes to the capital unit or the

3 structure of the office made?

4 A changes were contemplated before Hilton was over.

5 Q And explain what changes were contemplated.

6 A we knew that we were going to have to change out the

7 team because they were exhausted. And that's the truth. And

8 it was -- Hilton just magnified something that at least I had

9 detected, and I'm sure Nancy had, too. That they had done too
10 many cases 1n too many counties for too long. Pulled Coy
11 Evans out of the fire, which was a minor miracle, lots of

12 excellent work for years. No death sentences with this team,

13 okay.
14 But they had worked themselves to the bone. And

15 then they have this challenge and then it goes this way. I
16 thought it was psychologically, emotionally devastating to the
17 entire team and I thought they should be changed out.
18 Q And were you part and parcel of the decision making
19 process on the change out or restructuring or reshuffling?

20 A I was, I was.
21 Q In your role as the Public Defender, are there

22 particular standards that you adhere to that are national

23 norms 1n terms of structuring the capital unit?

24 A Yes. I mean, we try to comply with norms and

25 standards. we don't have a mitigation specialist anymore,

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 which we should, but we don't.

2 Q You and I attend many of the same educational

3 vehicles or continuing education processes. There are ABA

4 norms, by way of example, that give guidance

5 A sure.

6 Q -- to how a capital unit should be structured; yes?

7 A Yes, and we were structured that way before

8 Mr. Hilton's case.

9 Q Doing the best that you can to comport or comply

10 with those recommendations?
11 A I think we pretty much complied with the ABA

12 standards. we had at least two lawyers on every case,

13 typically divided the guilt and mitigation phases. we had a
14 full time mitigation specialist and a full time fact

15 investigator and we hired the experts that we needed.

16 One of the things that we're criticized for 1n audit
17 sometimes is how much money we do spend on capital cases and
18 so -- with experts, for example. so I think we were complying
19 with ABA standards, if not exceeding them.
20 That wasn't the issue, it wasn't the structure. It
21 wasn't the credentials of the team. The people were talented.
22 The people are very talented. They wouldn't have been
23 there -- Nancy wouldn't have allowed them to serve in that
24 capacity if she didn't believe in them. I believed in them as
25 well. They were exhausted.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q so you would attribute exhaustion to -- and I don't

2 want to put words into your mouth -- but the dysfunctionality

3 of what was occurr1ng or that you were observing?

4 A I think it was a cumulative effect. And, aga1n, I

5 didn't know this at the time, Mr. Morris, okay

6 Q Yes, sir.
7 A -- this is seven years later. I've had a lot of

8 time to think about what went wrong and why. So, but I think

9 they were exhausted go1ng 1n, they were sleep-deprived during

10 because they were working crazy hours. And then the team kind
11 of spiraled out of control. It got so big and unwieldy in

12 some ways.
13 I think they were just -- you know, it's like go1ng
14 for a cross-country drive when you haven't slept for 72 hours.

15 And that's the way it looked and that's the way it felt.
16 Q So after the Hilton trial, there were planned--
17 plans for restructuring and in fact restructuring occurred.
18 were there any other things that were implemented that would
19 safeguard or protect against similar things happening again?
20 A well, I inadvertently put myself in capital so I was
21 -- I didn't know that at the time when I was advocating for

22 this, but as it turns out, we didn't have enough people

23 qualified to restock the capital division; I happened to be
24 qualified. So we ended up with Mr. Been as the chief of
25 capital and myself as his second or as another member of the

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 team.
2 And then for awhile, we experimented with changing

3 the fact investigator because it was my position, everybody

4 had to go. I took an all or nothing v1ew of this thing. That

5 didn't last long. we brought Mr. Ellrich back when we
6 realized his value and the fact that we couldn't really
7 replace him.
8 we lost the mitigation specialist position; how, I
9 don't know. I didn't have anything to do with that. But what
10 I do know is that after Ms. Fuentes left, we had to hire a
11 mitigation specialist on contract. so we changed the team,

12 yes.
13 Q okay.
14 MR. MORRIS: Tender the witness, Judge.

15 THE COURT: Cross.

16 CROSS EXAMINATION
17 BY MS. (APPLEMAN:

18 Q so the team that was in place when the assignment

19 was made to handle this case was your A team at that time?

20 A Absolutely.
21 Q And your office dedicated considerable resources to

22 the defense of this client?

23 A Yes.

24 Q Including a great financial investment 1n the case?

25 A Yes.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q And as well as human hours. I think you said

2 innumerable human hours were spent on this case.

3 A I would say thousands.

4 Q And the addition of Paula saunders and the other

5 lawyers, I think you've talked about the disadvantages of
6 that, but there were also advantages to having additional
7 lawyers placed on the case; would you agree with that?

8 A I would.

9 Q All right. And this was considered a maJor case 1n

10 your office?
11 A There was no nonma]or case 1n our office that was 1n

12 the capital division.

13 Q okay. But it was an important case for the office?
14 A Yes, as all of them are; yes, ma'am.

15 Q And you talked about the team being exhausted pnor

16 to the Hilton trial. And you specifically mentioned Coy
17 Evans, another capital case that was tried here in the
18 courthouse. was that capital case the most recent capital
19 case that had been tried prior to Hilton, by this team?

20 A I cannot recall, Ms. Cappleman. I know that there

21 were lots of cases that went right to the brink of trial in
22 the outlying counties and were resolved. I cannot recall.
23 It's the last one I remember.

24 Q And what, if anything, did you know specifically

25 about the defense team's trial preparations in this case? For

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 example, do you know how much material there was to be

2 reviewed 1n the discovery?

3 A I have an idea just from it being 1n a box or

4 being -- the boxes they had, but, no.

5 Q All right. so it was extremely voluminous though;

6 you would agree with that?
7 A Yes.

8 Q Too much for one person to physically rev1ew

9 A oh, absolutely.
10 Q -- every page?

11 A And that's not the way the team operated anyway.

12 Q Are you familiar with how many depos were taken?

13 A No.
14 Q How many mitigation witnesses were interviewed?

15 A No.

16 Q How many motions filed?

17 A None of that.
18 Q okay. How involved were you with the discussion of
19 strategy in the case, other than the conversation you talked

20 about with Mr. Friedman?

21 A Not at all. well, I guess 1n speaking with

22 Ms. Fuentes we discussed strategy, about her disagreement with

23 the strategy --

24 Q okay.

25 A -- and what the strategy should be.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q But specifically in reference to -- were you

2 involved 1n a meeting where there was a discussion about

3 trying to incorporate the Ritalin defense into the guilt

4 phase?

5 A I do not recall that.

6 Q were you specifically involved in any strategy

7 discussions about possibly conceding guilt in the guilt phase?
8 A I remember a discussion about that and I don't
9 remember if I was involved with that or I was after-the-fact
10 consulted by Nancy. Most of -- most of what I knew about
11 Hilton was through Nancy.

12 Q okay. were you 1n any meetings involving the team

13 with discussion of whether there should be a concession of
14 guilt in the guilt phase?

15 A sounds familiar, but I cannot recall.

16 Q okay. And when Mr. Friedman discussed with you his
17 plan to streamline the penalty phase, why do you think he was
18 asking you or telling you what he was go1ng to do?
19 A Rob and I are friends, I mean.

20 Q But you're a trusted colleague?

21 A Mr. Friedman and I have known each other s1nce CCR

22 North. And when I came back to the PD's office, he was one of

23 the first people I talked to because he was in appeals and

24 that's where I went. And we talked a lot about Jimmy Ryce
25 cases, about any number of cases.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q Did Mr. Friedman use you as a sounding board for

2 ideas --

3 A No.
4 Q -- and strategies? No. so he was just telling you,

5 he wasn't inquiring?

6 A Not really.
7 Q okay.

8 A He was pretty much just announc1ng what he was go1ng

9 to do and why that was a great strategy.

10 Q okay. And you mentioned that you disagreed with the
11 strategy at the time?

12 A Yes.
13 Q But didn't intervene because even though you cared
14 about the case and it was an important case 1n your office, it

15 wasn't your case and you didn't feel it was your

16 responsibility to intervene?
17 A I didn't think -- technically, I don't feel like I

18 had the authority, in all honesty.

19 Q But you were the No. 2 in the office?
20 A we're not structured like you. we're not structured
21 like you. Capital reports directly to the Public Defender.
22 Q Right, but the Public Defender wasn't there so that
23 makes you
24 A That's not -- when Rob was talking to me, the Public
25 Defender was there.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q okay. And did you vo1ce your concerns to the Public

2 Defender

3 A I did.

4 Q -- about -- okay. so then it would have been -- the

5 ball would have been in Ms. Daniels' court to make a decision

6 whether any intervention needed to be made?

7 A Yes.

8 Q And did you take any other action regarding your

9 disagreement with Mr. Friedman's strategy, other than speaking

10 with Ms. Daniels?
11 A No.

12 Q And how long after your conversation with

13 Mr. Friedman did you voice the concerns to Ms. Daniels?
14 A Almost immediately.

15 Q Regarding Ms. Fuentes and her conversations with

16 you, whose role was it in the office to decide how the
17 mitigation evidence would be presented?
18 A Lead counsel.

19 Q And would that be Mr. Friedman?

20 A It would have been ultimately Ms. Suber as the head

21 of the team, okay. Mr. Friedman, if she delegated the
22 mitigation phase to him outright, then he would have that
23 authority. That would be unusual. I don't think Ms. Suber
24 usually delegated absolute authority for a whole phase of a
25 trial.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q would Ms. Daniels also have the authority to

2 delegate that responsibility to Mr. Friedman?

3 A She has the authority to do what she wants. she's

4 the Constitutional officer.

5 Q so that's a yes?

6 A Yes.
7 Q And do you know whether Ms. Daniels or Ms. Suber

8 delegated that authority to Mr. Friedman?

9 A I do not.

10 Q But in any event, it would not be Ms. Fuentes'

11 decision how and what mitigation evidence to present in court?

12 A That's precisely why when she left, she resigned.

13 Q Right, because she was frustrated at the decision
14 that Mr. Friedman made?

15 A And I was frustrated that you don't tell a lawyer

16 how to do a case.
17 Q You were frustrated with that?
18 A Yes, that's why we had the discussion. That's why
19 Ms. Fuentes no longer works for us, although she did excellent

20 work.
21 Q I thought she was fired because she refused to come

22 present the mitigation as Mr. Friedman desired her to 1n

23 court?

24 A Maybe, I don't know. All I know is she was leaving

25 the team. And I said, if you leave the team, you're leaving

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 the office because you don't have the authority to tell the
2 lawyer how to do the case.

3 Q was that a conversation that you had with

4 Ms. Fuentes in person or on the phone?

5 A In my office.

6 Q And was Ms. Daniels present for that conversation?

7 A No.

8 Q And did Ms. Fuentes report directly to you?

9 A No.
10 Q so you were not 1n her direct chain of command?
11 A Except in Ms. Daniels' absence. And my recall is

12 Nancy was not available at that particular time.

13 Q I see. okay. And you admit that you were not
14 intimately familiar with the case as Mr. Friedman was?

15 A I don't know how he was how well acquainted he

16 was. I know I wasn't.
17 Q And when you were acting as the Public Defender in
18 Ms. Daniels' absence, you mentioned that you had concerns, but
19 that you ultimately declined to make the changes that
20 Ms. Fuentes was requesting?
21 A I don't even know specifically what -- Ms. Fuentes

22 didn't come in saying, do this, do that, do the other thing.

23 Q I think your testimony was that she wanted some

24 changes made to the defense team mid-trial?
25 A Maybe, I don't know. But it wasn't like she came 1n

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 and said, remove Rob, put somebody else on.

2 Q okay. But in any event, you did not do that?

3 A No.

4 Q And you had the authority to do that at that time?

5 A I assume so, but that would have been insanity.

6 Q well, was it ethically necessary to remove

7 Mr. Friedman or any of the defense team at that moment?

8 A I don't know. I didn't have the fund of knowledge

9 to make that call. I guess if he had gotten life, no, but I
10 don't know. I don't know.

11 Q Yeah, the outcome determines; right?

12 A I just don't know because I just know that there was

13 a whole lot of information that wasn't presented. That's what
14 I know.

15 Q But do you know specifically what the information

16 was that wasn't presented?
17 A Some of it, yes.
18 Q why it wasn't presented?

19 A I don't know why it wasn't presented. I know some

20 of the stuff that was not presented.

21 Q And what specifically was not presented that you
22 think would have been important to present?

23 A I think it was family member testimony, something

24 about losing a stepmother or stepfather, father, mother,
25 something, to a homicide; being exposed to violence and abuse;

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 a number of factors and a vast array of what you would

2 consider classic mitigation from childhood, adverse childhood

3 exper1ences, that type of thing. And I think some expert

4 testimony as well. And that I only --

5 Q what specific expert testimony?

6 A I don't remember. It's just vague.

7 Q Did you watch the penalty phase of the trial?

8 A Did not.

9 Q so would it change your op1n1on to know that the

10 evidence that you mentioned, at least the specific evidence
11 you mentioned, was introduced at the penalty phase of the

12 trial?
13 MR. MORRIS: objection, calls for a legal
14 conclusion.

15 THE COURT: Overruled.

16 THE WITNESS: It wouldn't surpr1se me that if I had
17 ten witnesses that could establish a texture, that Rob
18 put on one; no, it wouldn't surprise me.
19 BY MS. (APPLEMAN:

20 Q so is there anything specific that did not come in

21 that you think was important to come in? And I'm making a

22 distinction there between, you know, you disagreed with the

23 strategy of how it was presented. was there anything that was
24 not presented that you're aware of?
25 A I can't answer that question. I don't know the case

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 well enough, Ms. Cappleman. I think Ms. Fuentes, maybe

2 Ms. Suber, some of the other witnesses can probably fill you

3 1n on that.

4 MS. CAPPLEMAN: One moment, please.

5 (Attorneys confer.)
6 BY MS. (APPLEMAN:

7 Q Are you familiar with how many lay witnesses

8 Mr. Friedman called during the penalty phase of the trial?

9 A No.
10 Q But it was your testimony that you believe
11 Mr. Friedman is not comfortable calling lay witnesses?

12 A Yes.
13 Q okay. And you also touched on Mr. Friedman's
14 qualifications. How would he have been qualified to sit

15 second chair if he did not have any prior trial experience?

16 A He had post-conviction exper1ence. He probably
17 wasn't qualified under the rule.
18 Q so this was his first JUry trial?
19 A I don't know. He may have done jury trials before

20 he did appeals 1n west Palm. That would have been a long time
21 ago. That may very well have been. He was in private

22 practice for a short time, too. so I don't know what he did

23 during all that period, but he was --

24 Q How long was he in private practice?

25 A I think five years.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 MS. CAPPLEMAN: No further questions.

2 THE COURT: Redirect.

3 MR. MORRIS: Just briefly, Your Honor.

4 REDIRECT EXAMINATION

5 BY MR. MORRIS:

6 Q If I'm hearing you correctly, the concept of a

7 psychiatrist or a psychologist testifying that they reviewed
8 or received information that Mr. Hilton had been abused or
9 subject to an abusive environment in arriving at their
10 conclusions is different from actually placing witnesses on
11 the witness stand who are able to testify to those

12 circumstances and about those circumstances, separate and

13 apart from how the psychiatrist or psychologist arrives at the
14 opinion?

15 A Absolutely. One 1s academic, one 1s emotional. One

16 1s human.
17 Q In other words, the lay people or persons are able
18 to get over the rail the information of the life experiences
19 of an individual; and in this instance, Mr. Hilton. And then

20 at some point in time, the clinician or the expert is able to

21 attempt to piece that together and aid the jury in arriving at

22 how they would have arrived at their expert opinion or their

23 op1n1on about Mr. Hilton?

24 A I believe the foundation of lay testimony 1s

25 invaluable. And it can be as little as looking over at

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Mr. Hilton and cry1ng as a family member, okay. Or just

2 nodding as you get off the witness stand, just the fact that

3 he's not a monster. He's not the worst thing he ever did.

4 He's a human being. That's what comes across through lay

5 testimony.
6 Q And an example in this case, are you aware of
7 anything involving a brain injury or a Murphy Bed or anything
8 like that related to Mr. Hilton?

9 A I remember that vaguely. I don't know if I knew it

10 before, after, during, but I do remember it.
11 Q But the distinction being that if the expert has

12 reviewed some evidence that Mr. Hilton, the defendant, has

13 received a traumatic brain injury at some point in time,
14 that's distinct from somebody actually providing the

15 chronology of what occurred and any evidence of that brain

16 ln]ury as his life progresses?

17 A Absolutely, absolutely. I mean, if there was a
18 witness to the injury, you want the witness testifying to the
19 ln]ury.

20 Q succinctly stated, it creates humanity?

21 A well, it tells his story. It tells his story 1n a

22 cohesive, narrative way where you understand who Gary Hilton

23 1 s.

24 Q You mentioned Mr. Friedman's qualifications to

25 handle a penalty phase, that he may not have been qualified.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 I'm not go1ng to ask you to speculate --

2 A I don't know.

3 Q -- we'll ask him about that. But during your tenure

4 at the office, how many capital cases had Mr. Friedman been

5 involved 1n and associated with?

6 A I don't know. I don't know of any pr1or to this, to

7 tell you the truth. He may have assisted. I don't know.

8 Q Are you aware of him having been first chair in any?

9 A No.
10 Q Your recollection is that he may have assisted 1n
11 some. Do you know 1n what capacity?

12 A I don't. I know that he didn't do capital appeals

13 because we had a capital appeals division.
14 Q Again, you may not know the answer to this. Do you

15 know whether or not he had ever assisted in a guilt phase?

16 A I don't. I know that he was involved in I believe
17 two evidentiary hearings while at CCR North, but he was not
18 lead and he had very little involvement.
19 Q Correct me if I'm wrong, but his involvement with

20 CCR North 1n an evidentiary hearing would be far different

21 from a guilt phase --

22 A It's like this. It would be like this.

23 Q Right. Far different, you would agree with me, than

24 assisting in a guilt phase of an actual trial?
25 A Absolutely.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q Not to say -- ask dumb questions, but it's the

2 difference between making an argument to 12 versus an argument

3 to one?

4 A Yeah, with the funnel upside down on you.

5 Q And the same question relative to penalty phase. Do

6 you know whether or not he had ever assisted in a penalty

7 phase previously?
8 A I don't.

9 Q And as I understand your explanation of the

10 structure, Ms. Suber was lead counsel. she's primary first
11 chair; correct?

12 A Correct.
13 Q Mr. Friedman becomes second chair; 1s that accurate?
14 A Yes.

15 Q ultimately, first chair has the authority and

16 override of second?
17 A The way we were structured at that time, Ms. Suber

18 ran capital.
19 Q And when you say "structured at that time," 1s that

20 different now?
21 A I think it's probably -- you still have to have

22 somebody where the buck stops here on everything, that has to

23 make the final strategy call on things. But I think we

24 function much more as co-counsel probably now than we did. I
25 think we put two lawyers on there and they conspire together.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 There's always a lead, there's always someone who will have to

2 make a final decision if there's disagreement.

3 Q So rather than -- the situation was more

4 hierarchical then in the sense of Ms. Suber having the

5 ultimate say, draw the line 1n the sand. Now we've changed a
6 little bit that, yes, while somebody has to make an ultimate
7 decision if there's disagreement among the parties, the desire
8 1s a more collaborative effort?

9 A I think so.
10 MR. MORRIS: Thank you, s1r.
11 THE COURT: You can step down.

12 THE WITNESS: Thank you, Judge.

13 THE COURT: Do we need to keep him any further?
14 MR. MORRIS: He does not need to be retained, Judge.

15 THE COURT: Do you need him for any reason,

16 Ms. Cappleman?
17 MS. (APPLEMAN: No, Slr.

18 THE COURT: You're excused. why don't we take ten

19 minutes.

20 (Recess taken from 10:00 a.m. to 10:10 a.m.)

21 THE COURT: call your next witness, Mr. Morris.

22 MR. MORRIS: Judge, the defense would call Ines

23 sube r.
24 THE WITNESS: Your Honor, may I have my water?

25 THE COURT: You may.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 If you'd face the clerk and be sworn, please.

2 whereupon,

3 INES SUBER

4 was called as a witness, having been first duly sworn, was

5 examined and testified as follows:

6 THE COURT: Have a seat. slide up to the

7 microphone, please, ma'am. I believe you've heard my

8 comments to Mr. Thomas. The attorney-client privilege

9 has been waived.

10 You may proceed, Mr. Morris.

11 DIRECT EXAMINATION

12 BY MR. MORRIS:
13 Q State your name for the record, please, ma'am.
14 A My name is Ines Suber.

15 Q May I ask you, for the benefit of the court

16 reporter, if you could spell your first and your last name?
17 A I-N-E-S is my first name; and S-U-B, as in boy, E-R.
18 Q Ms. Suber, let me ask you, how are you currently
19 employed?
20 A I work with the office of the Public Defender here
21 1n Tallahassee.

22 Q so the office of the second Judicial circuit?

23 A The Second Judicial Circuit.

24 Q And what are your current assignments or duties?

25 A I do appeals for the office.

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 Q Specifically capital appeals?

2 A No, I don't do any capital appeals. I do murders

3 and robberies, and whatever the office ass1gns me, 3.850

4 appeals, and whatever they assign me.

5 Q okay. A smorgasbord of sorts?

6 A Yes.
7 Q And let me ask you, Ms. Suber, tell me a little bit

8 about your educational background.

9 A I came in '68 from colombia, south America. I came

10 with a bachelor's degree in languages. And then I got here

11 and I went to Florida State, transferred my degree, and I went

12 to FSU here and graduated from law school here.

13 Q okay. what year did you graduate from law school?
14 A '85.

15 Q And if you could detail for me how it 1s that you

16 were employed from after graduation.
17 A After I graduated, I was employed with the office of
18 the Attorney General and I worked as an attorney, a staff
19 attorney, in the appellate section for awhile. Then I went

20 and worked 1n 1997 I worked with the -- I transferred to

21 the office of the Public Defender also in appeals because

22 there was a conflict of interest. so I worked in appeals for

23 about, I would say maybe six months at the most, and then I

24 was transferred to trials.

25 Q so they put you 1n appeals and that didn't last very

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 long because you had had interaction

2 A with the prosecutors.

3 Q --with the attorney general's side of things?

4 A Right, with the attorney general.

5 Q so you got placed into the trial division then?

6 A I was placed -- when I was in appeals I actually did

7 a lot of mental health work. And then I went to misdemeanors

8 and the majority of my time was in felony so.

9 Q Tell me a little bit, prior to you com1ng into the

10 capital unit, tell me a little bit about what the structure
11 was in the office of the Public Defender prior to you com1ng

12 1n.
13 A Prior to my com1ng 1n, the office of the Public
14 Defender assigned -- are you talking about homicides or?

15 Q Death penalty cases.

16 A Death penalty cases. what they did, the office
17 didn't have a capital unit at all. The cases were assigned to
18 the individual sen1or attorneys and the attorneys handled the
19 cases.

20 Q okay. so if the death penalty case was 1n Judge

21 Hall's division

22 A Correct.

23 Q -- it would be whoever was the sen1or attorney 1n

24 that division?

25 A we didn't have divisions back then. we basically, I

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 think it was -- my recollection is that we didn't have

2 divisions. we just -- it was assigned to senior attorneys.

3 And we were we were teamed with the State Attorneys for a

4 specific judge, so to speak, but they didn't call it

5 divisions. I believe the divisions part came after, I'm not
6 quite sure when.
7 Q And I guess by way of example, you'd be paired up
8 with a prosecutor. And if you happened to be the most senior
9 in front of that judge, you were go1ng to be the person who
10 was assigned the death penalty case?
11 A No, no, no, no. The office -- what the office did,

12 according to what I saw the office do, is they assigned the

13 sen1or attorneys to the homicide cases. So therefore it
14 didn't have anything to do with the State Attorney's office at

15 all. It was if there 1s a case that was serious enough that

16 came into the office, it was assigned to the senior attorney,
17 regardless of what that attorney was.
18 Q okay. I got it. Tell me about your exper1ence as
19 you came along as a defense attorney in terms of your
20 interactions with death penalty cases.
21 A when I came into the office and I was assigned the
22 first death penalty case, I didn't know anything about it.
23 The office didn't have any training. I went to training,
24 FACDL training.
25 And what I did was my investigator, actually it

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 became Chris Ellrich, and we developed --we developed --what

2 we did was we sat down and we developed almost like a matrix,

3 we used to call it a matrix, where we -- where we requested

4 records for purposes of the death penalty and then we

5 requested records for purposes of the guilt phase. so

6 everything was just handled at the investigation part of it.

7 Q Let me back you up just a little bit though. what I

8 heard you say is, when I was assigned a death penalty case, I

9 didn't know I didn't have an educational background and you

10 had to kind of learn on your own; accurate?
11 A That's the truth, yes.

12 Q was there a circumstance that pr1or to you com1ng 1n

13 where you had been second chair or co-counsel with anybody
14 else 1n any death cases?

15 A I had handled -- I had handled homicide cases, like

16 second degree cases, myself as a lead counsel, but no death
17 penalty cases. Fortunately for me at the very beginning, I
18 was fortunate enough that I was able to handle I mean,
19 settle some of those death penalty cases and they didn't

20 become actual death penalty cases.

21 Q okay.

22 A Do you follow me?

23 Q I am. In the sense that the death penalty 1s

24 potentially applicable, but those cases were able to be
25 resolved or steered --

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 A Correct.
2 Q -- in a direction that the death penalty did not

3 result?

4 A Right.

5 Q Or wasn't in play, I guess?

6 A It was investigated, but it was not to -- the

7 investigation didn't go all the way to trial.

8 Q And I guess really the meat of my question 1s for me

9 as a young lawyer, and when you would have been relatively new
10 at the Public Defender's office, Randy Murrell would have
11 been

12 A Right.
13 Q -- one of the most sen1or trial attorneys 1n the
14 office?

15 A Correct. He was my superv1sor.

16 Q Fair enough. Did you have an occas1on to co-counsel
17 or second chair with him in order to be able to learn the
18 ropes, so to speak?
19 A Yes. He -- actually when I had my cases, he usually
20 was available and he sometimes sat with me during my trials.
21 If there was an 1ssue that was very -- I mean, very important,
22 so to speak, and if I felt that I was not versed enough, I
23 requested the office to assign somebody from appeals. And
24 what they did was they pulled out an appellate attorney who
25 then researched the issue and went to court and prepared the

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 1ssue and presented in court.

2 Q okay. when was it, and you don't have to g1ve me a

3 prec1se date, but to your recollection when was it that you

4 were brought into the, quote, capital division or that was

5 formed?

6 A It was pretty much right after it was formed that I

7 became I was brought in to the capital division. I believe
8 I was probably the one that stayed there the longest. My
9 recollection is there was one pr1or attorney that had been 1n
10 the capital division that left.
11 Q Do you remember about what date we're talking about?

12 A I would say, taking 2011 as a reference, I would say

13 probably 12 years.
14 Q Twelve years ago?

15 A since 2011, 12 years past.

16 Q Twelve years prior to 2011?

17 A Yeah, so it would probably be 18, 19 years ago.
18 Q so between the time that you were brought in to the
19 capital division and Mr. Hilton's case arose, how many
20 different capital cases do you think that you were assigned?
21 And when I -- and let me clarify because I do recogn1ze that
22 there are a lot of cases that at the inception there is the
23 potential of it heading that direction.
24 But how many were -- how many did you handle that
25 actually proceeded to trial before Mr. Hilton's?

JULIE L. DOHERTY, RMR, OFFICIAL COURT REPORTER

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1 A At least two that I recollect right now. I had

2 the I was the lead counsel and second chair to begin with

3 in the capital trial of Coy Evans and Sergeant Green, that

4 murder case. That was my first one. And then I believe I had

5 one of a prominent lawyer here in town that escapes my mind,

6 his name, I cannot recollect, that happened at the Tally's

7 Grille. That was the second, the second case. I believe

8 there was one more capital case that I went to trial at the

9 penalty phase level that was complete.

10 Q okay. so two, maybe three cases
11 A Maybe three

12 Q start to finish?
13 A two for sure.
14 Q okay. And did I hear you correctly in the coy

15 Evans, you said that you were lead counsel and the second
16 chair?
17 A well, 1n the -- what happened 1n the office, the way
18 I perceived it, was that whenever there was a death penalty
19 case and I requested a second chair, there was a lawyer pulled
20 out from the regular duties that they had to assist me as
21 second chair. In the Coy Evans case, Rob Friedman was 1n
22 appeals and he was pulled out of that. And he handled one of
23 the -- he handled a motion dealing with Daubert, the
24 admissibility of some toolmark evidence. And I handled the
25 rest of the trial.

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1 Q okay. And the only reason that I ask is it seems to

2 say I was lead counsel and second chair, to me it's that you

3 were just Mr. Evans's lawyer, period, but --

4 A well, no, it would not be fair for Mr. Friedman. He

5 was the lawyer for Mr. for Mr. Evans. And there may have
6 been other attorneys that researched a particular 1ssue 1n
7 Mr. Evans. But I'm talking at the trial level, I was lead
8 counsel for both the -- I did both the guilt phase and the
9 penalty phase.
10 Q okay, understood. so you were 1n charge of both of
11 those. There wasn't a co-equal

12 A No.
13 Q -- one handling guilt, one handling penalty?

14 A No, no.

15 Q Had you -- you mentioned having attended continuing

16 education workshops and things of that nature. Do you know
17 what the recommended norms are related to that in terms of
18 whether there should be a --
19 A Yeah, the recommended norms was that there need to
20 be two people in a particular death penalty case; that one
21 handles the guilt phase preferably and the other one handles
22 the penalty phase.
23 And that's what happened during my second trial.
24 Now during my second trial, the lawyer that was pulled to
25 assist me was Paula saunders. And Paula, Ms. saunders,

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1 handled the majority of the penalty phase, including the

2 presentation of the witnesses and the closing argument during

3 the penalty phase.

4 Q so you were first chair, she was second chair. The

5 division of labor was you were to handle guilt, and then she's

6 primarily to handle penalty?

7 A Yeah, we both handled -- we both -- we worked

8 together on the case, yes, for both phases. we worked the

9 guilt phase together. she researched some guilt phase 1ssues.

10 she worked the penalty phase. she was assigned particularly
11 to present the evidence for the penalty phase because it was

12 different -- the defense, and I don't recollect what the

13 defense was in that case, was a little bit different than what
14 the penalty phase theme was going to be. so we divided

15 chores.
16 Q In 2007, 2008, pr1or to the -- just pr1or to the
17 emergence of Mr. Hilton's case, was the structure the same;
18 that you're in charge and people would just be pulled out and
19 assigned or are there lawyers that are specifically assigned?
20 A Sometimes there would be a second chair assigned. I
21 don't recollect the second chair remaining in the office for
22 whatever reason or remaining -- no, scratch that.
23 They remained in the office, but they didn't rema1n
24 1n that particular second chair position for more than s1x
25 months, to my recollection. Like Steve Been would come and

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1 go. Other -- other lawyers in the office would come. Tracy

2 Record would come and go. So there were second chairs, but

3 they didn't stay there long enough to -- long enough.

4 Q So it's not a circumstance where you go to a corner

5 of the office of the Public Defender, you're the boss of the
6 capital unit, there are two other lawyers that are assigned,
7 an investigator and a mitigation specialist. It's more a
8 circumstance that you're in charge and then the second chairs
9 kind of float in and out.

10 A That was -- that was the case when I handled capital

11 cases 1n the office, yes.

12 Q How did you maintain any sense of continuity amongst

13 the defense team if so many people are coming and going?
14 A well, I grew fond of the appellate lawyers. I

15 thought that they were a key to my cases. They actually

16 helped me a lot with researching the issues and sometimes
17 presenting the issues in court. They were invaluable to me.
18 So, also I had -- you have to remember that I had a
19 great support team at that time, including my secretary that
20 actually did everything. Betty was there as a mitigation
21 specialist at one period of time, and then I have chris
22 Ellrich. So that was a great support team that I had at that
23 particular time.
24 And we're talking about before Mr. Hilton; right?

25 Q That's correct.

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1 A Yes.
2 Q So tell me, and let's just focus structurally on

3 what things were like. You become aware of Mr. Hilton's case

4 and that Mr. Hilton has been indicted and the State is seeking

5 his extradition?

6 A I became aware of Mr. Hilton's case before there was

7 a case 1n the state of Florida. we traveled -- we traveled

8 Betty Fuentes and I went to see Mr. Hilton I believe it was 1n

9 January of 2000 and probably seven, I would say. If he was

10 indicted in 2008, you know, we were officially appointed to
11 Mr. Hilton 1n February. we saw Mr. Hilton in January of that

12 same year, if I remember correctly. we traveled to Georgia.

13 Q okay. And most -- more specifically what I want to
14 hone 1n on, rather than what individuals did, is what was the

15 structure at the time that Mr. Hilton's case happened?

16 A The structure in the case, I believe Paula was 1n
17 the she had come -- she was assigned to the second chair of
18 the office for I think she -- I had requested that she come
19 for an extended period of time and she promised two years. So
20 during the time that Mr. Hilton came along, there was a period
21 of time that Paula was a second chair and she was a permanent
22 second chair, but she then left.
23 Q okay. so at the inception of Mr. Hilton's case,
24 you're first chair and Paula saunders is second chair and she
25 promised you that she was going to stay

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1 A To stay, but the two years had ended so she left

2 back to go to appeals.

3 Q okay. Let's not get to the two years gone --

4 A okay.

5 Q -- by, let's stick with -- so it's the two of you --

6 A Right.
7 Q -- and then you have the resources of Ms. Fuentes as

8 well as Mr. Ellrich at that point?

9 A Right.
10 Q Are there any other lawyers that are involved at
11 that point?

12 A I believe later on there was -- Steve Been was

13 involved somewhat and then there was Tracy Record that was
14 involved somewhat as well. Merribeth came, Merribeth Bohanan,

15 came also. That's the lawyers that I remember.

16 Q okay. Once Mr. Hilton was extradited here -- and I

17 don't want to short-circuit what you're trying to say. I
18 understand that you inserted yourself into the case before
19 Mr. Hilton was ever here. You went to Georgia in order to

20 meet with him and things like that; correct?

21 A Right.

22 Q And eventually though, let's take a few steps

23 forward, Mr. Hilton arrives here in Leon county. And you and

24 Paula saunders are the people who are in charge of the case;

25 correct?

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1 A I want to say that Steve Been was involved with the

2 case at that particular time because there was a tremendous

3 amount of work dealing with the media at that time and the

4 possibility of a change of venue. And I do remember that we

5 were also working on a high profile case at the time and Steve
6 was helping me with the media. I say that probably Steve Been
7 was also in the case. And I believe he talked to Mr. Hilton.
8 Yes, Steve Been was the second chair at that time.
9 Q so Paula has come and gone?
10 A Has come and gone.
11 Q so Paula was in for awhile, she's gone now.

12 Mr. Hilton arrives, and it's you as first chair, Steve Been as
13 second chair?
14 A Been, Steve Been, yes.

15 Q so during Ms. saunders' involvement, the discovery

16 process hasn't even begun. Mr. Hilton is in a different
17 jurisdiction, he's not here in Leon county, and not until he
18 gets here does the discovery process begin; correct?
19 A Correct.

20 Q All right. And Mr. Been would have been involved at

21 that point in time?

22 A Right.

23 Q okay. And so did you and Mr. Been define what roles

24 were going to be assigned and to whom?

25 A No, we never sat down and said, okay, you're go1ng

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1 to do this or you're go1ng to do that.

2 Q why not?

3 A we never did.

4 Q okay. so --

5 A I didn't know if he was go1ng to stay there or for

6 how long. so it was not like, okay, you handle the penalty
7 phase and see you later. I mean, the penalty phase and the
8 guilt phase were all investigated together.

9 Q so you ended up -- I suppose 1n your own mind ended

10 up say1ng, I've got to take control of all of this because I
11 don't know who's going to come and go and at what particular

12 time?
13 A Right, right. I felt that I had to be sure -- to
14 ensure that all the work got done.

15 Q who was your immediate supervisor?

16 A Nancy, Nancy Daniels.

17 Q why not go to Ms. Daniels and say, hey, I need a
18 dedicated designated individual who is going to be by my side
19 throughout?

20 A I believe those conversations were had.

21 Q Meaning that you went to Ms. Daniels and you

22 requested that you have a specific attorney designated

23 permanently to help you with the case?

24 A I believe that we had -- I believe I had

25 conversations with Ms. Daniels. Not only that the office

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1 needed a second chair, a permanent second chair, and also that

2 the rule required a second chair.

3 Q And those requests of Ms. Daniels were, I guess, not

4 heeded? They were not followed or acknowledged?

5 A well, there was -- there was a lawyer g1ven to help.

6 Q Yeah, but we've named saunders, Been, Record. You

7 didn't mention Nicole Jamieson, but --

8 A Oh, Jamieson, Nicole.

9 Q -- but none of those were permanent?

10 A No, the only thing that was permanent at the very
11 last minute was Merribeth. I believe that at that time there

12 was actually an assigned position for a second chair so

13 Merribeth came as a second chair.
14 Q when Mr. Hilton's case --

15 A Bohanan.

16 Q -- begins to track 1n the direction of what

17 ultimately was a trial, what was the division of labor? And
18 I'm not interested in Ms. Fuentes was the mitigation
19 specialist and Mr. Ellrich was the fact finder, but what was
20 the division of labor in terms of the lawyering?
21 A There was no division of labor because -- there was
22 no division of labor, per se. Mr. -- Mr. Friedman came into
23 the case, if I remember correctly, six months before the
24 actual trial. Paula saunders, at my request, was assigned
25 like maybe I would say a month, a month or so -- maybe she

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1 lasted maybe she was there three months.

2 Q okay. Let me interrupt. so it fell on your

3 shoulders, in your mind, to develop a defense strategy as it

4 relates to the guilt phase, as well as a defense strategy for

5 the penalty phase, should one arise?

6 A Yes, together with the rest of the people. I know

7 Merribeth Bohanan at that time was helping me tremendously at

8 that time with the PET Scan because there was a big ta-do to

9 even transport Mr. Hilton to have a PET Scan done. so she --

10 she helped a lot in the penalty phase on the part of
11 Mr. Hilton.

12 Q so you delegated some responsibility to --

13 A To Merribeth Bohanan; yes, I did. she -- I asked
14 her to please take care of all of the stuff dealing with

15 transportation of Mr. Hilton, to get Dr. wu into Tallahassee,

16 to get the situation for all court orders, whatever was

17 needed. And she did that, that I remember.
18 Q well, and I guess what I'm trying to get at,
19 Ms. Suber, is at some point in time-- first of all, there was

20 a mass1ve amount of discovery that was involved in this case;

21 agreed?

22 A Yes.

23 Q okay. There -- on the guilt phase side of the case,

24 there were hundreds and hundreds of witnesses, I believe 400

25 and something?

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1 A 600 witnesses.

2 Q Fair enough. So on the guilt phase side of things,

3 when was there a point that you sat back and you said, this is

4 how bad the evidence 1s, this is how good the evidence is, and

5 this is what I think our strategy needs to be 1n terms of how

6 we present this case to the jury?

7 A The way we worked on the case with Mr. Hilton was

8 that whoever was in the team at that particular time, we used

9 to meet like every month, sometimes even every two weeks. And

10 we identified what needed to be done. And we assigned, so to

11 speak, the work to whoever needed and the deadlines for the

12 work to be done.
13 And then we will talk about -- we would obviously
14 discuss the case and what was happening. And then we will

15 meet again and see who was done -- who has done whatever
16 assignment was. That's how -- meetings was a lot of the
17 that go with Mr. Hilton, and any other capital case that I

18 recollect.
19 Q But at some point, regardless of whether you're
20 trying a petit theft case or a death penalty case, there has
21 got to be a decision that's made on what your strategy is or
22 what your defense is; would you agree?

23 A Yes.
24 Q when did you make a decision on what Mr. Hilton's
25 defense was going to be?

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1 A I recollect having a meeting 1n Nancy Daniels'

2 office. Nancy was present, Rob Friedman was assigned to the

3 case and was present. Paula saunders was present.

4 Q Let me stop you right there. So Rob Friedman was

5 assigned to the case. How long

6 A Assigned.
7 Q how long before the trial though?

8 A My recollection was like maybe six months. Maybe

9 I'm incorrect, but I think it was not like years.

10 Q So the case had been pending for two, two-and-a-half
11 years and no decisions had been made with respect to what

12 strategy was to be used, employed, or what defense was going

13 to be used?
14 A we were just investigating. No, there was no like

15 we sat down, okay, we're going to do this and that. we knew

16 that we were go1ng -- what we were going to do for the penalty

17 phase because Betty and I talked a lot on the penalty phase.

18 we talked about what other witnesses we need -- we had a list

19 of people that needed to be contacted and how we're going to

20 present it, yes.

21 Q So during the two, two-and-a-half year period of

22 time that elapses from Mr. Hilton's arrest and being brought

23 before the court here in Leon county, and when Rob Friedman is

24 inserted into the case, there is not any decision that's made

25 by you or anyone else that the defense that we need to present

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1 1s this in the guilt phase and this is how it would apply or

2 be incorporated into the penalty phase?

3 A My recollection is that Mr. Hilton wanted a trial.

4 Q okay.
5 A Mr. Hilton wanted to have a trial or have life in
6 pr1son. The State did not offer life in prison. I prepared
7 the case for trial.

8 Q well --

9 A There was
10 Q -- and I understand that you go to a client, and I

11 don't want to get too far afield in this, I understand that I

12 go to a client and the client says, deny everything and demand

13 strict proof, we need to go to trial and come what may.
14 But at some point 1n time you had to have had an

15 intelligent conversation along the way with Mr. Hilton about

16 what options were available and what defense strategies could

17 be employed.
18 A I did. I remember talking to Mr. Hilton a few times

19 concerning the guilt phase of the case, and, frankly, the

20 penalty phase.
21 Q And what -- and that's -- okay. so we didn't have

22 any of those conversations with Mr. Hilton until Mr. Friedman

23 got involved though because there's no strategy to discuss at

24 that point?

25 A well, no, there was a strategy. There was a

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1 strategy. I discussed the case with Mr. Hilton. It was clear

2 from the very beginning that Mr. Hilton either wanted life 1n

3 prison or trial. And he wanted-- he wanted the State to

4 prove everything.
5 So, so I discussed with Mr. Hilton that really what
6 the evidence was -- I discussed that there really was not that
7 much that we could argue during the guilt phase because the
8 evidence, 1n my op1n1on, was overwhelming. That I could
9 concentrate on making sure that all of the evidentiary 1ssues
10 were preserved for whatever purpose later on.
11 But there was one discussion that Mr. Hilton was not

12 pr1vy to. And that discussion was whether or not we use the
13 prescription of Ritalin into mental health, a mental health
14 defense during the guilt phase.

15 That discussion took place -- you have to -- you

16 have to remember that the whole thing, that the chaos in this
17 case, pardon my language, started the minute the trial judge
18 denied my 90-day motion to continue the case based on my
19 representations to the court that the case was not ready to go
20 to trial. The penalty phase was not ready to go to trial and
21 that we needed at least 90 days to try to get it together, but
22 that was denied.
23 when that happened, we started -- there was a
24 discussion with Nancy about the guilt phase and the penalty
25 phase. what Nancy did was separate -- separate. He

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1 assigned -- she assigned the guilt phase to me and he -- and

2 she assigned the penalty phase to Rob Friedman.

3 And I told Nancy specifically, like it was today,

4 the penalty phase 1s not prepared yet. we need 90 more days

5 at least; and why don't you go to the Judge with me and to the

6 court with the State to see if we can get a continuance so to

7 allow us to prepare the case for Mr. Hilton. But that didn't

8 happen.

9 Q Those continuance motions were filed, my

10 recollection is November, December, and January, right up on

11 the eve and the doorstep of trial; accurate?

12 A well, yeah, because I was-- because every time that

13 we went to trial, or we set it up for trial, that's what we do
14 1n the trial, you know. we set it for trial, we try to

15 prepare. we know that we're not going to be prepared, we file

16 a continuance.
17 In this case, that's what I knew. I knew the case
18 was not prepared. I knew I could not resolve it via a plea,
19 even though I tried to the very last minute. so I went and
20 asked for a 90 days continuance, once I sat down and assessed
21 what it would take to prepare the penalty phase that Betty and
22 I had come to prepare, together with Rob Friedman, at my
23 direction.
24 Q so if I'm understanding things correctly,
25 Mr. Friedman 1s brought on board to handle the penalty phase

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1 about s1x months pr1or to the trial; correct?

2 A Right.

3 Q okay. To that point, there had been no strategy

4 developed amongst counsel of the interplay between the guilt

5 phase and the penalty phase. The strategy was, based on your
6 communications with Mr. Hilton, is it's going to be I want my
7 trial or I want life in prison?
8 A The strategy for the guilt phase was to take it to
9 trial because he wanted a trial and to preserve the issues as
10 best we could. The strategy that we had for the penalty phase
11 was to present Mr. Hilton as humanly possible as we could,

12 bring all of the lay witnesses, with Dr. McClaren because

13 McClaren -- Dr. McClaren, Harry McClaren, was the key, the key
14 that held the penalty phase together and our preparation of

15 the penalty phase, to bring him and tie everything.

16 And also, at the last minute I -- we decided, we
17 decided that we had Mr. -- because of the Murphy Bed instance,
18 and because we had finally -- Betty had finally was able to
19 reach a lady that was actually a witness to that bed, to that
20 Murphy Bed accident, then we decided to call Dr. wu and have a
21 PET Scan done just to make sure that there was not any brain
22 damage. All of that was happening when I asked for a 90 days
23 continuance.

24 Q okay. And I just want to make sure that I'm

25 understanding strategically. The first instance that any

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1 decisions are being made, who's handling particular aspects of

2 the case, are roughly s1x months prior to trial when

3 Mr. Friedman comes on board?

4 A well, more or less.

5 Q Fair enough. I understand what -- I don't know that

6 I agree on the definition of a strategy as you suggest based

7 on the discussions with Mr. Hilton, but so we then get to

8 shortly before trial. And are other people -- Ms. Bohanan 1s

9 involved in the case at this point as well?

10 A Yes, she actually was the second chair. so she was
11 supposed to help Betty with the preparation of the penalty

12 phase, but I just don't think it happened that way.

13 Q was Ms. Bohanan there prior to Mr. Friedman being
14 inserted into the case?

15 A No.
16 Q No.
17 A Not to my recollection.
18 Q she came after Mr. Friedman came into the case?
19 A That's my recollection.

20 Q And then Ms. saunders got inserted into the case at

21 some point?
22 A Right, after Mr. Friedman came.

23 Q okay. And so did --

24 A Ms. saunders got in the case not for the penalty

25 phase. she was involved in the case to do one, one -- to

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1 research the -- because Mr. Hilton was insisting and wanted a

2 full trial, we wanted to research and present to the court a

3 motion to suppress dealing with what I call the transportation

4 statements, the statements that Mr. Hilton made not only--

5 not only when he was transported 1n Georgia when all that was
6 happening over there in Georgia, but also when he was
7 transported from Georgia to Tallahassee, that he made some
8 statements.

9 Q The surreptitious recording of his statements by the

10 Georgia Bureau of Investigation on the way to the discovery of
11 the body

12 A Right, all of that.

13 Q -- of Meredith Emerson and then also the
14 surreptitious recordings from Georgia to Tallahassee?

15 A Yes, all that stuff.

16 Q so Ms. saunders was specifically and exclusively
17 assigned to address that particular issue?
18 A That was why she was pulled from appeals, to help
19 the guilt phase of the case, to do that.
20 Q so she's got that specific task. You have-- you're
21 first chair, you're in charge of guilt phase. And
22 Mr. Friedman has been brought 1n for penalty phase?
23 A Yes, but what happened was after the -- after the

24 office well, when the motion to continue was denied, I went

25 to Nancy Daniels and I said, well, now what? we're not

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1 prepared; why don't you go with me? And she obviously did
2 not -- that didn't happen.

3 But the case was divided at that time. So the case

4 was divided and Rob Friedman was assigned as the lead counsel
5 on the penalty phase, and I was left to handle the guilt
6 phase.

7 Q So 60 to 90 days before the trial --

8 A Right.

9 Q --when we're filing motions to continue, we have no

10 strategy amongst the lawyers in terms of how the guilt phase
11 and the penalty phase are going to relate?

12 A As it turned out, we never, we never -- I never

13 remember sitting with Rob Friedman during the -- when I was
14 taking the trial, the day before trial, a week before trial

15 and saying, hey, this 1s the way we're going to present the
16 penalty phase. All that was presented was new to me because I
17 was not privy to any preparations.
18 Q well, you were in charge; correct?
19 A I was in charge on paper, but I guess -- but Nancy
20 had assigned Rob Friedman to be in charge of the penalty
21 phase. So he was the lead counsel for the penalty phase at
22 that time.

23 Q okay. so if I get the answer to my question

24 correctly, there was not a strategy or a communication among
25 the lawyers on what strategy should be implemented on behalf

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1 of Mr. Hilton?
2 A Not between Rob Friedman and myself, there was never

3 one.

4 Q Okay. You're handling the guilt phase, Mr. Friedman

5 1s handling the penalty phrase, and there's just not

6 communication or understanding?

7 A There was no communication between the lawyers.

8 They were having meetings talking about the guilt phase and

9 neither I nor Betty, Merribeth Bohanan, to my knowledge, were

10 being invited to those meetings.
11 Q I mean no disrespect, but if you're in charge, that

12 sounds like an absolute train wreck waiting to happen. why

13 not do something?
14 A I tried to present that to Nancy Daniels at that

15 time. And her response was we needed to be prepared and that

16 obviously, you know, I couldn't prepare the penalty phase and

17 that I should just be in charge of the guilt phase.
18 Q okay. so you did not have any oversight then of the
19 penalty phase anymore? You were strictly to be focused on the
20 guilt phase?
21 A That's correct. As a matter of fact, I was told

22 that I was not a team player whenever there was a disagreement

23 between

24 Q I'm sorry, as a matter of fact you were what?

25 A That I was not a team player when I stopped the -- I

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1 stopped some subpoenas to be canceled for Delcher, Tabor, and

2 some of the witnesses, the most important witnesses from

3 coming -- from being released from the subpoena. I stopped

4 those momentarily.

5 Q okay. I'm not following. I don't understand.

6 A what happened was that while I was not involved 1n

7 the penalty phase whatsoever, I believe that there became a

8 time when Mr. Friedman told Betty Fuentes that -- to release

9 people from the subpoena.

10 Q okay.
11 A I'm assuming that Rob said that to her. I didn't

12 know. But she came to me and said they're releasing Delcher

13 and -- Delcher, Tabor and other witnesses from the subpoena.
14 I said, no, don't do that because, first of all, I didn't

15 know; I had not talked to Rob.

16 And then when I did that to stop so I could talk to
17 Rob about it as to why we were releasing those witnesses, I
18 was basically accused of not being a team player and that I
19 needed to let -- that I was not the only one that can handle
20 capital cases and that I needed to defer the penalty phase to
21 Rob that he was taking care of.

22 Q okay, let's take a pause there. who had been in the

23 office of the Public Defender longer, you or Mr. Friedman?
24 A I had been there longer.

25 Q How many death penalty cases or phases of death

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1 penalty cases had Mr. Friedman handled?

2 A To my knowledge -- to my knowledge, he sat as -- he

3 handled -- he was the second chair for the Coy Evans case.

4 Q okay. And when you say "second chair," you were

5 first chair; correct?

6 A I was first chair. I handled both the guilt phase

7 and the penalty phase. He handled a motion dealing with the
8 admissibility of some evidence.

9 Q The Daubert issue that you mentioned?

10 A Yes. And he sat at the table and he assisted 1n
11 that respect.

12 Q Did he exam1ne witnesses and help 1n the preparation

13 of the guilt --
14 A Just as it dealt with the issue.

15 Q okay. I mean, so if you've got 20 witnesses 1n a

16 trial, he's handling one witness as it relates to the Daubert
17 issue?

18 A Right.
19 Q But he's not handling the examination, direct or

20 cross, or any of the arguments before the jury?

21 A To my recollection, he didn't.

22 Q To your knowledge, had he ever participated 1n any

23 other death penalty cases at the trial level, whether it be

24 guilt phase or penalty?

25 A To my knowledge, he didn't.

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1 Q So he did not have any death penalty exper1ence

2 other than arguing a motion hearing?

3 A I believe that he had some exper1ence from Capital

4 collateral.

5 Q Trial exper1ence, I apologize.

6 A oh, trial.

7 Q I apologize, I didn't clarify.

8 A To my knowledge -- to my knowledge he was -- 1n the

9 office he handled Jimmy Ryce. Maybe he handled some Jimmy

10 Ryce trials in that respect, bench trials.
11 Q So who is Mr. Friedman reporting to as his immediate

12 supervisor?
13 A Nancy.
14 Q So not to you?

15 A Not to me.
16 Q So, theoretically, you're reporting to Nancy what
17 you're doing for the guilt phase; Mr. Friedman is reporting to
18 Nancy what he's doing for the penalty phase; correct?
19 A Yes; however, there became a point -- there became a
20 time where I just -- I couldn't -- I just quit talking to

21 Nancy at that particular time because the 1ssue around the

22 office -- because I started to demand things.
23 when I saw that the case was not going properly I
24 started -- my my temper got a little hot and I started to
25 demand things that we were perhaps being ineffective. And

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1 that when I started demanding things, there was goss1p go1ng

2 around that I was mentally ill. So I just-- I just basically

3 concentrated on what the office assigned me to do.

4 Q okay. so earlier you said that there were week

5 meetings every other week or every month. I mean, did

6 everybody just get in a room and stare at each other or was

7 there actual discussion?

8 A No, when I was the lead counsel, we got 1n the room,

9 we got 1n the conference room and we reported as to what we

10 had done. we reported what the witnesses had said, whether

11 they were bad or not bad or they were good, or whether or not

12 they should be contacted again or asked additional questions;

13 whether another issue needed to be researched and a motion
14 done. That's what we talked about, when I was the lead of

15 those meetings.
16 Q Ms. Fuentes was the mitigation specialist.
17 Presumptively, she would have been reporting to Mr. Friedman;
18 correct?
19 A Yeah, she reported she started reporting to Rob
20 Friedman. when the decision of the office was made that he
21 was the one in charge of the penalty phase, she started
22 reporting to him.

23 Q But she
24 A I believe that she attended the meetings.

25 Q -- she had reported to you up until that point?

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1 A Yes, we talked almost daily about the cases that we

2 had, my recollection.

3 Q Let's talk about what your caseload was at the time

4 1n late 2010 and early 2011. How many cases were you
5 handling?
6 A You know, actually, I don't really recollect. I
7 know there was a lot. I know that there was another
8 high-profile case, the Rachel Hoffman case, that required a
9 tremendous amount of work by the office. I know that there
10 was another homicide case that came and I believe it was the
11 German, German national that required a lot of work because

12 most of the witnesses were from out of town.

13 Q Ms. Suber, I don't mean to interrupt, but would it
14 help if I showed you your emergency motion to continue the

15 trial to refresh your recollection

16 A Yes, yes, that will help me.
17 Q -- as to the cases?

18 A I don't have my files anymore. Yes, that will help

19 me.

20 MR. MORRIS: May I approach, Your Honor?

21 THE COURT: YOU may.

22 (Pause.)
23 BY MR. MORRIS:

24 Q Ms. Suber, I can probably bring your attention

25 you have them 1n bullet points at a latter portion in the

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1 motion.
2 A okay. I just couldn't even remember an emergency

3 motion being filed. okay. Perfect. oh, wow, okay, here.

4 State of Florida v. Andrea Green was the Rachel --

5 Q And you don't need to read them. Just read them to

6 yourself and give us an idea of what your workload was.

7 A I had ten, ten cases where the death penalty was on

8 the table.

9 Q okay. was that a usual number of cases or an

10 abnormally high number of cases?
11 A It was an abnormal, abnormal high.

12 Q were you capable of handling all of those cases and

13 providing adequate attention to them?
14 A No.

15 Q okay. If I can retrieve that from you, Ms. Suber.

16 Let's talk around -- this motion was filed in January,
17 January 26th of 2011. And I believe that there had been some
18 that had been filed in November and December seeking leave of
19 the court for a continuance. But let's get to that point in
20 November, December, and January.
21 A okay.
22 Q Mr. Friedman 1s doing his own thing prepar1ng the

23 penalty phase; Ms. Fuentes is reporting to Mr. Friedman, no

24 longer to you. You're focused on the guilt phase. None of
25 the parties are talking to one another and interfacing;

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1 accurate?
2 A I don't know if it was November, but it's accurate.

3 Q Okay. Ms. Saunders is involved strictly limited in

4 her role and responsibility to argue a motion to suppress as

5 it relates to the surreptitious audiotapes?
6 A Correct. I think -- I believe that later on I heard
7 that she assisted with the penalty phase.
8 Q okay. So when was it that you and/or Mr. Friedman,
9 Ms. Bohanan, Ms. saunders, whomever, went out, met with
10 Mr. Hilton and said, look, the evidence 1s overwhelming of
11 guilt. And the problem that's inherent 1n death penalty cases

12 is if we beat the jury over the head with evidence and

13 objecting to it, it is going to leave us in an awful situation
14 1n the penalty phase?

15 A I told Mr. Hilton -- I talked to Mr. Hilton about

16 the options that he had, either go to trial and challenge
17 everything, or not go to trial. And he chose to go to trial.

18 Q okay. so as I understand it, he, once you

19 informed him affirmatively, he can go to trial or he cannot go

20 to trial?
21 A Right.
22 Q Tell me how you don't go to trial.
23 A I told him that he could plead straight up to the
24 court. I probably told him that I didn't see any benefit from
25 pleading straight up to the court because in this particular

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1 situation, I told him -- I recollect telling him that the

2 State was going to introduce the evidence of the young lady

3 that was murdered in Georgia.

4 Q Emerson.

5 A Emerson.

6 Q So you affirmatively advise him he can go to trial,

7 his first option. Second option is you can enter a guilty
8 plea and then we'll proceed to the penalty phase and the jury
9 would then make a determination on life or death?
10 A My recollection was that I did -- that I did explain
11 to him the guilt phase, what the benefits were of going to

12 trial and what the -- and what was not the benefits of going
13 to trial.
14 Q And you did that -- you had that discussion with

15 Mr. Hilton in conjunction with the other counsel handling the

16 penalty phase so Mr. Hilton understood the pros and the cons
17 of each?
18 A Mr. Hilton indicated to me that nobody talked to him
19 about the penalty phase. He talked to me even -- the last
20 time he informed me that was in court, as the penalty was
21 go1ng to start, that he didn't have any idea as to what was
22 go1ng to happen 1n the penalty phase.
23 Q How 1s a lawyer to convey to Mr. Hilton what his
24 options are? How are you able to convey to Mr. Hilton what
25 his options are when Mr. Hilton has no idea what's happening

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1 1n the penalty phase?

2 A I was -- I had told to Mr. Hilton that I was

3 assigned to the guilt phase of the case. And I explained to

4 him what the guilt phase was going to look like. Then --

5 Q what was it going to look like?

6 A It was going to be -- look like that it was a

7 situation where if the State messed up -- and I probably said

8 screwed up -- it would work to our benefit on an evidentiary

9 1ssue. But I told him that more than likely, 99 percent, it

10 was my thinking that he was going to be convicted as charged.
11 Q And in the face of you providing the 99 percent

12 advice, in the absence of the State screwup, that he's going

13 to be convicted, as I understand your testimony, he says, no,
14 I want a trial. But out of the other side of your mouth I'm

15 hearing, but he doesn't know anything about the penalty phase;

16 1s that right?
17 A I did not discuss -- I discussed the penalty phase

18 with Mr. Hilton several times in the -- during the years that
19 I represented Mr. Hilton. However, I did not discuss the

20 strategy of the latest penalty phase as it was presented when

21 Rob Friedman took over. I did not discuss that because I

22 didn't know how to discuss it because I didn't know myself

23 what was going to happen.

24 I indicated to him that he needed to -- that I was

25 asked -- that I will ask Rob to discuss that with him. And I

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1 remember leaving the courtroom in a hurry, walking and runn1ng

2 all over to Nancy Daniels to ask Nancy to please send Rob

3 Friedman down to talk to Mr. Hilton because Mr. Hilton was

4 going to fire him.

5 Q For you to provide good, professional, ethical,
6 informed counsel, would you not agree with me that it would be
7 essential for you to have to discuss the strategy of the
8 penalty phase in conjunction with the guilt phase with
9 Mr. Hilton for him to even make a decision?
10 A Yes.
11 Q And that was not done?

12 A I discussed with him only the guilt phase.

13 Q You discussed what?
14 A The options that he had to go -- either take it to

15 trial or not take it to trial as to what he wanted.

16 Q But you have no idea what's going on in the penalty

17 phase; right?

18 A I had no idea what was go1ng on.

19 Q And so you agree with me that you can't provide good

20 counsel by not knowing what's going on in the penalty phase,

21 but you discussed with him --

22 A It was very deficient, if you put it that way.

23 Q So he was making decisions, theoretically, based on

24 absolutely not all of the information necessary; correct?

25 A At least none that I could provide to him, yes.

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1 Q There 1s a third option that could have been

2 conveyed to Mr. Hilton that, okay, we can have the guilt

3 phase, but we need to stay away from objections that are

4 problematic and you're able to exercise those strategic

5 decisions to navigate the guilt phase, knowing that a

6 conviction is likely to result and occur. That way, you don't

7 alienate yourself from the jury. That would be another

8 option; would it not?

9 A I guess so, but 1n discussing -- in discussing the

10 case with Mr. Hilton, Mr. Hilton and I discussed that all of
11 the issues that had any evidentiary matter needed to be

12 preserved correctly to the best of my ability. And that's

13 what it was decided between Mr. Hilton and I to do.
14 Q So I stopped counting at objection 1,000-something

15 1n the guilt phase of the trial. The decision was that you
16 were going to strategically get the jury on your side and
17 preserve all of the issues necessary by objecting to

18 overwhelming evidence, and then to allow the penalty phase

19 team to stand back up and then have sympathy for the man?

20 A My recollection of the objections were the

21 objections to the introduction of all of the materials that

22 were in his van that the State was introducing because I

23 didn't believe that they had anything to do with the murder

24 of -- the Tallahassee murder.

25 I wanted to prevent or I wanted to preserve that

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1 1ssue for Mr. Hilton to be able to later argue because,

2 because he -- all of that was introduced in the penalty phase.

3 And I didn't want I didn't want -- I wanted to preserve it

4 from early on.

5 The fact that the chains were used and all that
6 stuff, I needed to preserve that. And if the trial was going
7 to happen today, I would preserve it again because I think
8 chains and not chains and all of that stuff that was in the
9 van was not -- didn't have anything to do with this murder.
10 Q You mentioned that there were rumors that you were
11 having mental health issues around the time of the trial or

12 the lead-up to the trial?

13 A Right.
14 Q was that the result of the case not being prepared

15 or what was it the result of?

16 A The result -- the case not being prepared. You
17 know, it was -- it was a result of everything. Number one,
18 the case was not prepared. No, no, no, number one, it was the
19 fact that it was a capital case. That that gives enough

20 inside somebody, you know, to have for at least for a few

21 months until that case 1s over with.

22 Then it was the fact that all of that stuff was

23 go1ng on between the lawyers that were not even talking, not

24 meeting, and not discussing to the detriment of the client.

25 And then it had the stuff that my supervisors were

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1 runn1ng around goss1pp1ng 1n a period of time when I thought

2 that goss1p was unnecessary.

3 Q Let's talk a little bit about what's goss1p and

4 fact. were you under the care of a physician for anxiety,

5 depression, sleep disorders, anything of that nature during
6 that period of time?
7 A My daughter -- I went to a doctor during that period
8 of time because my daughter asked me I was falling asleep
9 when I was talking to my daughter. And my daughter told me
10 why I was working so hard. I told her I had a case, so she
11 said -- she wanted me to quit the office, and quit the case,

12 but the comprom1se was that I needed to go to a doctor, which

13 I did.
14 And that doctor -- I told Nancy that my daughter had

15 requested that I go to a doctor and I did go to the doctor.

16 And that doctor prescribed me Ambien to be able to sleep. He
17 told me not to work more than 18 hours a day and to take
18 Ambien.
19 Q okay. so a doctor was go1ng to tell you not to --
20 that it's okay to work 18 hours, you should go home and eat an
21 Ambien, sleep six hours and then get back up and do it again?
22 A That's what I was told. That was my primary
23 physician.

24 Q were you taking any other medications?

25 A Blood pressure medication.

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1 In the '80s -- or in the '70s and '80s, I suffered,

2 right after my divorce, I suffered from panic attacks. And at

3 that time, I was prescribed xanax. But I'm not sure if I was

4 taking xanax during the period of time that I was in the

5 capital division, frankly.
6 Q okay. so you had a prescription left over from the
7 '70s or '80s, but you don't recollect whether you were still
8 taking it?
9 A I didn't have any prescriptions left over 1n my home
10 of drugs that were prescribed. You know, if I took a
11 prescription or drugs, I took them and that was the end of it.

12 And I didn't keep medication for years.

13 Q Yeah, but I understood that you just said that you
14 didn't recollect whether or not you were taking it --

15 A I don't recollect that I was taking xanax during the

16 time that I was in the capital division, perhaps at the very
17 beginning. The xanax that was prescribed to me was in the
18 '70s and the early '80s when I was in the trial division
19 working with Judge McClamma, I believe was his name.
20 Q If other lawyers on the defense team had a
21 recollection that you were taking xanax for anxiety, would
22 during the pendency of Mr. Hilton's case --would they be
23 mistaken or could they be accurate?
24 A I don't know how they would remember -- how they
25 would know that I was taking xanax unless they gave me the

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1 pill themselves. And I didn't take my pills here in the

2 office, in the courthouse. I took my pills at home and none

3 of them live with me.

4 Q But it is possible that you were taking that

5 medication?

6 A Yes, it 1s possible that I was still under the --

7 taking one fourth of a xanax that was .5 milligrams, I was

8 taking.

9 Q when you would leave the office during the pendency

10 of the Hilton case, after you've been told not to work more

11 than 18 hours, to take Ambien, and maybe take a xanax, were

12 you then go1ng out and drinking to deal with stress?

13 A No. when I left the office, I went I went to

14 my -- actually, I went to colombia to be with my family.

15 Q I mean during the pendency of the case.

16 A No, no. During the pendency of the case I went

17 home. I don't have time to drink; I wish I had.
18 Q okay.

19 (Pause.)

20 THE COURT: why don't we take about five minutes.

21 we seem to have kind of a pause.

22 MR. MORRIS: Yes, Slr.

23 THE COURT: Let's take five minutes.

24 (Recess taken from 11:13 a.m. to 11:21 a.m.)

25 THE COURT: You can resume the stand, Ms. Suber.

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1 Everybody be seated.
2 You can proceed, Mr. Morris.

3 MR. MORRIS: Is the court comfortable with me

4 proceeding in the absence of Ms. Cappleman?

5 THE COURT: Yes.

6 BY MR. MORRIS:
7 Q Ms. Suber, let's talk about what actually

8 procedurally occurred in the trial. would you agree with me

9 that depositions were not taken of substantive witnesses?

10 A Yes, I would agree.
11 Q would you agree with me that when witnesses' names

12 were read at the start of the trial or the inception of the

13 trial, the defense team was unaware or did not know who
14 certain witnesses were?

15 A I agree that I didn't know.

16 (Ms. Cappleman enters the courtroom.)
17 BY MR. MORRIS:
18 Q You had the benefit of reading the post-conviction

19 motion that's been filed in the case; correct?

20 A very fast. It was provided to me the day before

21 yesterday.
22 Q okay. There were a great number of objections that
23 were made and requests for cause challenges during jury
24 selection. And then if the court denied that, there was a
25 request for other peremptory challenges. who was responsible

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1 for preserv1ng the record and ensur1ng that those 1ssues were
2 preserved for the purposes of appeal?

3 A I was, and Paula was assisting me. And all --

4 everybody was, but I was the one responsible.

5 Q why then was the procedure under case law not

6 followed, or who should have been responsible for it, for

7 making certain that the record was preserved after making all

8 of those painstaking objections?

9 A Frankly, I thought I had made all of the objections

10 dealing with cause challenges in addition to peremptories;
11 however, I do remember I recollect after the fact, I recollect

12 a discussion that I had with Paula saunders that I thought I

13 had not preserved a particular -- a particular jury issue
14 correctly.

15 Q okay. And the particular Jury 1ssue, are you

16 talking about the cause challenges, peremptory, then needing
17 to object and identify then for the court who you would have
18 struck? And that step wasn't done?

19 A In my view, there was something that right after the

20 fact, right after I did it and we took a break, I kept arguing

21 that I didn't preserve it correctly. And they kept telling

22 me, yes, you did. Because I usually when I didn't argue

23 something correctly, I will go back and say, move for mistrial

24 or whatever. But in my mind I had not preserved it correctly.

25 Q okay. So you were the person who was responsible

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1 for that? It would not have been Ms. saunders or another --

2 A No, I was the one responsible for that.

3 Q Up until about the very end of the guilt phase of

4 the trial, wouldn't you agree with me that the case was a

5 circumstantial evidence case against Mr. Hilton?

6 A Right.
7 Q There wasn't any, quote, direct evidence?

8 A Correct.

9 Q And then that unraveled immediately when a witness

10 was called from the jail, a corrections officer, who testified
11 that he had overheard a confession and statement made by

12 Mr. Hilton?
13 A Yes. I think that it was something in the record.
14 I don't recollect exactly what was said in the record because

15 I have not read the record, but there was a particular witness
16 that was called. The first time that I heard that name was
17 when Ms. Cappleman was telling the JUry something either at
18 opening statement or when they was telling the jury what the
19 witnesses were. And I heard a name that didn't -- that didn't
20 register.
21 Then, when Ms. Cappleman called that witness, my
22 recollection is that it didn't -- it didn't register with me
23 and I filed -- I argued that it was a Richardson discovery
24 violation. That's my recollection. It was one important
25 witness.

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1 Q And the record will reflect what it reflects --

2 A Right.

3 Q -- as it relates to the Richardson issue, but you

4 would agree with me that where there is direct evidence of

5 guilt, it cuts completely against the grain of making the

6 argument to the jury that, oh, this is just a circumstantial

7 evidence case and they don't have any direct evidence of

8 Mr. Hilton's guilt?

9 A Yes, my recollection -- yes, I agree with you, but I

10 don't remember arguing to the jury that it was a
11 circumstantial evidence case. I think I argued to the jury

12 that the evidence didn't prove the allegations. That the

13 State's evidence didn't prove the allegations, whatever that
14 means, yes.

15 Q So there is not any direct evidence and that the

16 State's evidence doesn't prove guilt was the argument?
17 A I just remember saying the State's evidence was not
18 prov1ng guilt, that he was guilty of first degree.

19 Q were you aware of the fact that the witness was

20 going to testify, the corrections officer was going to

21 testify?

22 A No, no.

23 Q And had you

24 A And neither was Mr. Hilton for that matter, because

25 if I was not aware, he was not aware because I never told him.

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1 And we never discussed that witness.

2 Q You would agree with me that Mr. Hilton would be

3 reliant on you to know what the witnesses are going to say?

4 A oh, yes.

5 Q And you were not aware of that during the week and a

6 half, two weeks of the guilt phase, up until the end of the
7 trial, essentially?

8 A Right.

9 Q And then did the wind kind of go out of the sails of

10 the defense at that point or what happened?
11 A what happened was that the, you know, I don't -- I

12 don't like -- I don't want to point fingers at anyone, you

13 know. However, this was a particular case where the State,
14 instead of doing Category A, Category B, Category c witnesses

15 just took a whole bunch of documents and just would come and
16 dump them on the defense. They called it like, for example,
17 State's Answer No. 6 and dump it; seven, 17, and dump it.
18 In one of those, in one of those -- as it turned
19 out, what I found out is we had the file on it because my
20 investigator Chris Ellrich, even during the, when I was
21 arguing the issue, he approached and gave me the file. And
22 the file only had one p1ece of paper, which it was his, I
23 guess, his testimony or the report. okay.
24 Instead of, I guess, you know I know for a fact
25 that I relied on the State providing to me the correct

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1 statement, as they are required to, that the statement of the

2 defendant needs to be provided to the defense, the

3 circumstances surrounding the statement, who made the

4 statement, who was present. And that was never done in this

5 particular case.

6 So, yes, I was ineffective 1n that I didn't find

7 that witness and that piece of paper 1n that pile of

8 documents.

9 Q well, let's talk about that because you were in

10 charge of the guilt phase, you're first chair. what was the
11 organizational methodology? Big pile of documents comes 1n

12 from the State and it went where 1n your office?

13 A It went -- there was cop1es made and everybody got a
14 copy of everything, including all the investigators. All the

15 attorneys that were assigned to that particular case, they had

16 copies of that.
17 And then I believe it was -- chris Ellrich was
18 supposed to make file folders, together with my secretary, of
19 the particular witnesses. A folder was made, but it was never
20 brought to my attention.
21 After the -- unfortunately, that didn't help
22 Mr. Hilton. But after the trial, I changed that policy that
23 the investigator not only made a folder, but in the matrix,
24 which is the actual document that we go by, also made a
25 reference as to what the witness -- each witness is saying 1n

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1 detail, you know.

2 So that the lawyer that gets monumental amounts

3 of -- thousands and thousands of pages just dumped in on the

4 lap will be able to key on those witnesses and maybe it will

5 not happen again. But that doesn't help Mr. Hilton, you know.

6 Q And we may be mixing two issues, but as I understand

7 it, you're lead counsel so it's your responsibility to review

8 those thousand pages that come in; correct?

9 A That's correct.
10 Q But there are duplicate cop1es that are made for the
11 investigator, the mitigation specialist, whoever the other

12 lawyers are that are involved; correct?

13 A That is correct.
14 Q Presumptively, they rev1ew it as well; correct?

15 A That was the assumption.

16 Q You don't know?
17 A I don't know what they do.

18 Q ultimately, it's your responsibility to be able

19 to
20 A ultimately, it's my responsibility.
21 Q -- be aware of what's in those documents?

22 A Correct.

23 Q Did you delegate responsibility to any particular

24 people to rev1ew this set of documents?

25 A No.

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1 Q So I think that we were talking about certain things

2 weren't done and sourced and things like that, but there

3 wasn't a directive provided to anybody to do that?

4 A No.

5 Q okay.

6 A I missed it; I was ineffective on finding that.

7 Q Then back to my original line of questioning.

8 Organizationally, when these thousands of pages of documents

9 come in, are they Bates stamped? Are they indexed? Are they
10 placed in alphabetical order? How are they categorized and
11 organized?

12 A when they come in, obviously, they are date stamped.

13 And then they are copied. several copies were made. One was
14 made -- everybody in the team got -- I got a copy, the second

15 chair got a copy, the mitigation specialist got a copy, and

16 the guilt phase investigator got a copy. And whomever was
17 working in the case got a copy.
18 Q oh, I get that.

19 A My copy -- my copy though, in addition to that, I

20 requested that folders, individual folders be made of every

21 individual witness so that it would be readily available.

22 Q And where were those folders kept?

23 A Those folders, the ones that belonged to me, were

24 kept 1n my office.

25 Q Did people have access to be able to, hey,

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1 Ms. Suber, I need to get ahold of witness John Smith's

2 testimony, can I borrow that folder?

3 A Yes.

4 Q Do you know whether they returned them? was there a

5 policy and procedure to be able --

6 A I have no clue. There was not a policy or procedure

7 of -- I don't know who went into my office after hours and

8 took what.

9 Q were there sufficient controls in place to make

10 certain that evidence or important documents weren't com1ng
11 and go1ng or go1ng missing out of your office?

12 A To my -- no, there was not. To my recollection,

13 there was not -- no, that was not done.
14 Q okay. Do you make it a habit to object to your own

15 defense team's questions in the trial?

16 A To object to my own defense team's -- no, I never
17 had I did it one time -- twice.
18 Q It happened in this case, 1n Mr. Hilton's case; did
19 it not?

20 A It happened one time during the penalty phase, yes.

21 And I think Mr. Hilton got up and objected himself.

22 Q Your own partner and co-counsel presents a question,

23 and then you sitting right next to him end up --

24 A And I said objection. I said objection I said

25 objection to whatever it was, whatever I heard. And then I

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1 think Mr. Hilton got up and said objection, 1s my

2 recollection.

3 MR. MORRIS: Tender the witness.

4 THE COURT: Cross.

5 MS. (APPLEMAN: Yes, Slr.

6 (Attorneys confer.)
7 CROSS EXAMINATION

8 BY MS. (APPLEMAN:

9 Q Ms. Suber, you said you were -- when you came to

10 work at the Public Defender's office, you did appeals for
11 about six months and then you went to a trial division?

12 A Yes, and I
13 Q when did you
14 A -- you know, and I'm estimating on the times.

15 Q Okay. That's fine. When did you --

16 A And I went to trials, yes.

17 Q -- when did you start at the Public Defender's
18 office?
19 A I started in 1987.

20 Q so your career has been comprised of solely criminal

21 defense work s1nce 1987?

22 A Correct.

23 Q And how many capital cases have you worked on during

24 your career?

25 A A lot.

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1 Q over 100?
2 A Possibly.

3 Q And when you began heading up the first capital unit

4 at the Public Defender's office, that was in about 1999; is

5 that correct?

6 A That sounds right.

7 Q All right. And how many capital JUry trials have

8 you been a part of during your career?

9 A Total? Just regular felonies and all that?

10 Q capital.
11 A Capital. I would say maybe three.

12 Q okay. And how many --

13 A or maybe four.
14 Q how many jury trials have you done 1n your

15 career?
16 A Hundreds maybe. I just -- I was not prepared. I
17 don't know how many.
18 Q That's okay. over 100 would be fair?
19 A I would say probably over 100.
20 Q And you mentioned that you went to see Mr. Hilton
21 for the first time in January. Is that January of 2008 when
22 he was first arrested 1n Georgia?

23 A It was when he was first arrested in Georgia.

24 Q All right. And did you continuously represent him

25 from that time, or from whatever time the charges here began,

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1 until the conclusion of his trial?

2 A Right.

3 Q All right. So from 2008 until the conclusion of the

4 trial in 2012?

5 A Right.

6 Q All right. And you talked a little bit about your

7 workload during the time that you were representing Mr. Hilton
8 and you said it was larger than normal?
9 A Right.

10 Q One case that you mentioned was the Hoffman case.

11 Mr. Hoffman -- Ms. Hoffman's case, your client was Mr. Green;

12 correct?
13 A Yes.
14 Q Entered a plea 1n 2010; 1s that correct?

15 A Yes.
16 Q okay. And how many of the other cases that were
17 listed 1n your motion for continuance went to trial during the

18 time that Mr. Hilton's case was pending?

19 A If I could refresh my memory with the list of the

20 cases, I probably will be able to -- thank you. I went to

21 trial on Daniel Chavez's case.

22 Q And was that during the time that you were

23 representing Mr. Hilton?

24 A I think it was before.

25 Q Before your representation of him?

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1 A I'm not sure about the dates. This was a case 1n

2 wakulla county.

3 Q okay. I know you mentioned Mr. Evans, Coy Evans'

4 case.

5 A He was not listed here, but I went to trial with

6 Mr. Evans.
7 Q And that case was concluded 1n 2004, would you agree
8 with that?

9 A Probably. It was a long time ago, yes.

10 Q And you also mentioned the lawyer that was killed,
11 Fred Parker?

12 A Parker, Parker, that's his name, yes.

13 Q Your client in that case was David Meyer; 1s that
14 correct?

15 A David Meyer. we went to full trial on him.

16 Q And that trial was conducted in 2005; would you
17 agree with that?
18 A That's probably correct.
19 Q Do you see any other names on that list that you had
20 to be actively working up and preparing for during the time
21 that you represented Mr. Hilton?
22 A Andrea Green.

23 Q Mr. Green, but that was the one --

24 A And calvin Hills.

25 Q -- that pled 1 n 2010; correct?

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1 A Yes, but that was just a miracle plea. And, you

2 know, that one was going to go to trial. I did a lot of work

3 on Marianne Bordt.

4 Q And did that case

5 A And Travis --

6 Q go to trial during the time that you represented

7 Mr. Hilton?

8 A Not during the trial because I was transferred. I

9 remember calvin Hills and Dominic Hill. I remember doing a

10 lot of work for them, go1ng to trial with Daniel Chavez.

11 Kentrell Johnson was not -- it was -- it was not -- it turned

12 out that that was not a case out of our jurisdiction, but it
13 was a case out of I think it was St. Johns or Duval county.
14 There was some work done in the case, in that case.

15 The case of Rodrizgus Richardson was -- there was a

16 lot of work done on that. But I think it was -- we conflicted
17 out, that I remember.
18 Q okay. so of the cases listed there and the ones
19 that you talked about, Hoffman was one that you worked on

20 during the same time you represented Mr. Hilton quite a bit.
21 A uh-huh.

22 Q And then you said a little bit on some of the other

23 ones; 1s that correct?

24 A Earl Brundidge Travis Peacock was a huge hearing

25 that was go1ng on on mental retardation, I believe it was. I

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1 just don't recollect all the the Angela Prim was reassigned
2 when I actually was about to go into trial. And that ended up

3 being dismissed by the State I believe.

4 Q Prim was reassigned when you were getting ready to

5 go to trial on Mr. Hilton's case?
6 A Yes. well, in my emergency motion that I filed --
7 1n the emergency motion that I filed on January the 26th of
8 2011, I indicated right there, reassigned about two
9 reassigned last month. So that was reassigned in -- that was
10 taken away from me to I believe to prepare Mr. Hilton.
11 Q To free you up to work on Mr. Hilton?

12 A To free up.
13 Q And in fact there were several cases that were
14 reassigned in order to free you up to work on Mr. Hilton's

15 case; 1s that correct?

16 A Not several cases, but there were a few, yes. There

17 was the case of -- there was one that was reassigned like
18 Rodrizgus Richardson, but that ended up going out of the
19 office. And the Lemon Lane case was it was assigned to go

20 to trial immediately after that. And that was almost -- that

21 was about all prepared and that was a death penalty case as
22 well.

23 Q And for this question I'm referring --

24 A Earl Brundidge, I think it was 1n Gadsden county.

25 Q All right. I was referring to an e-mail from --

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1 between you and Ms. Daniels back in November of 2010 where she
2 indicated that she had reassigned -- the case names are

3 blacked out for confidentiality purposes -- but she had

4 reassigned five of your cases in order to facilitate your work

5 on Hilton?

6 A That sounds about -- that sounds about right.

7 Q okay. All right. And we talked a little bit, or

8 you talked a little bit on direct about the voluminous amount

9 of discovery that was present in this case. was it an unusual
10 amount of documentation associated with this case?
11 A Yes, it was.

12 Q An unusual amount of witnesses?

13 A Yes, it was.
14 Q An unusual amount of items of evidence to be viewed?

15 A Yes, yes, there was. It was the way it was

16 presented to us. If the State would have listed Category A,
17 Category B, Category c, it probably would have been more
18 manageable, but it was presented to us as everybody was
19 Category A. so we had to prepare as Category A and depose
20 them or try to talk to them.
21 Q And you did prepare for those 600 listed witnesses;
22 correct?
23 A Yeah, I think -- I believe that there was like maybe
24 100 that I didn't take depos.
25 Q Okay. But you looked into

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1 A But I did prepare like 500 and something. Yes, I

2 think I took a lot of depos.

3 Q And what about the items of evidence, did you

4 personally view those?

5 A oh, my goodness, the final -- the evidence, I went

6 to the Department of Law Enforcement and I spent days looking

7 at the evidence.

8 Q In fact, you spent two weeks at the Department of

9 Law Enforcement viewing those items of evidence?

10 A That sounds about right. Those items of evidence

11 also contained a lot of personality. There was items that had

12 been found in a cave that were the personal items of

13 Mr. Hilton. So one of the main things for going over there to
14 look was to look at those items to see if some of those items

15 could be used or could help us in the penalty phase of that.

16 However, we could not tell the State we only want to
17 look at the penalty phase, we were just looking at the whole

18 thing.
19 Q All right. And what about motions, do you know how

20 many motions you prepared on this case?

21 A I filed a lot of motions and some of the assistants

22 filed motions. I know that even Bill McLain filed one motion.

23 Q would you agree there were dozens of motions filed?

24 A I agree that I used to file a lot of motions.

25 Q can you estimate how many hours you spent preparing

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1 the motions 1n reference to Mr. Hilton's defense?

2 A well, a lot of a lot of days and weeks, probably.

3 Q can you estimate how many hours you spent working on

4 this case completely, in total?

5 A This is not hours, this 1s months probably, if all

6 are put together.

7 Q And you had a full team working to assist you as

8 well; not just you, but other people at different times?

9 A At different times there were people assisting.

10 Q And consistently Mr. Ellrich assisted you?

11 A Mr. Ellrich was only assigned -- he was -- his job

12 was to find the documents, basically like grandmother from

13 the grandmother down the line, to find all of that -- those
14 documents. There were -- and Betty Fuentes was assigned to do

15 the penalty phase, to contact all the friends, relatives of

16 Mr. Hilton and other -- whoever had any contact with him.
17 Q But all those people were putting in additional
18 hours --

19 A Right.

20 Q -- to assist 1n the defense of Mr. Hilton?

21 A Right.

22 Q who was responsible for making sure that you had the
23 resources that you needed to get prepared?
24 A The office, I guess.

25 Q And is that Nancy Daniels?

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1 A Nancy Daniels.
2 Q Did you go to her with requests for additional help

3 or resources?

4 A Yes, I -- many times I did.

5 Q And were you always granted your requests?

6 A The motions to hire experts, I always was granted

7 the request. The motions to have a second chair, a permanent

8 second chair, it took -- it took a while, but eventually a

9 second chair was assigned permanently.

10 Q were there any requests that you made of Ms. Daniels

11 that were denied?

12 A No, usually usually Nancy and I worked pretty

13 well. Every time I made a request, she had to -- she didn't
14 have to, but she made everything -- every effort to assist,

15 except one time.

16 Q Except one time?
17 A when I wanted her to go to talk to the Judge about
18 the continuance in the case, that I felt that it was
19 necessary, 90 days

20 Q But my question 1s 1n regards to her providing you

21 with resources that you were requesting?

22 A oh, okay, yes.

23 Q You got all the resources you needed?

24 A That I recollect, yes.

25 Q All right. And in reference to the State's

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1 scientific evidence in the case, including the DNA, the bones,

2 the toolmark analysis, the beads, did you feel that you had a

3 good understanding of the State's scientific evidence?

4 A The only thing that I -- that I think that I

5 remembered researching a lot was the thing about the beads,

6 B-E-A-D-S. I had never had a case where there was evidentiary

7 value found on some beads. And so I had to -- I had to

8 research that.

9 And I also -- I remember spending a lot of research

10 and a lot of hours researching the issue of the -- I believe
11 there was there had been like some fractured bones that

12 were burned that were found. And they were being said that it
13 was the victim's. And I spent a lot of research as to how
14 they could -- they could determine that.

15 Q All right. And at the conclusion of your research

16 and preparation, did you feel prepared to cross-exam1ne the
17 State's expert on, let me go through them specifically, DNA?
18 A Yes, actually, you know, for the preparation of the
19 guilt phase witnesses, Ms. Bohanan helped me with some of

20 those witnesses. I believe that we did -- I felt prepared and

21 I felt like she did -- she did a good job 1n preparation of

22 the digital evidence that came into play. There was some

23 evidence dealing with some cameras that had been deleted.

24 Q Mr. Hilton's cameras?

25 A Yeah, Mr. Hilton's cameras, yeah.

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1 Q And did you feel prepared for the toolmark evidence?

2 A Yeah, yeah, I was prepared.

3 Q okay. And you were asked about the witness caleb

4 wynn who was called by the State, the correctional officer?

5 A Right.

6 Q And you testified that you were not aware of this

7 witness

8 A No, I was not aware.

9 Q -- prior to jury selection? All right. And that's
10 because the witness was not properly disclosed?
11 A Yes. And because I failed to -- and because I

12 failed to, I guess, go page by page looking through all the

13 documents to make sure that there were not confessions
14 anywhere.

15 Q And are you legally required to search for the

16 State's witnesses 1n a--
17 A I guess 1n this case I am --
18 Q mountain of thousands of documents?
19 A because the State didn't, you know -- I mean, I
20 guess I am legally required to -- in order to represent
21 properly a client, I'm legally required to do everything I can
22 to find all the witnesses and all the, everything. I think I
23 am legally required.
24 Q okay. But that witness was not listed in discovery?

25 A That witness, it was not listed in discovery.

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1 Q And the State is required to list all witnesses that

2 they intend to call in discovery; wouldn't you agree?

3 A Yes.

4 Q And when the State listed over 100 witnesses at Jury

5 selection as potential witnesses 1n the case, that name alone

6 stood out to you as one that you did not know?

7 A Right.

8 Q which means you knew all the other names that were

9 listed as potential witnesses?

10 A Right, right.
11 Q And then you went back to your office and looked

12 through discovery again and discovered that in fact that name

13 had not been listed?
14 A That's correct.

15 Q All right. So when later in the trial the State

16 called that name as a witness, you stood up and objected and
17 said, this name wasn't listed, and you moved to exclude the
18 witness; correct?
19 A Right.

20 Q And that was a valid, legal objection; was it not?

21 A I thought it was.

22 Q okay. And the remedy that was g1ven to you was you
23 were given an opportunity to talk to the witness?

24 A Right.

25 Q And the witness had to be called at a later time?

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1 A Yes. And I was g1ven the opportunity to depose him.

2 Q All right. And you elected to speak to the witness

3 1n the hallway --

4 A I was --

5 Q instead of deposing?

6 A I was able to talk to him for the period of time

7 that I needed to talk to him to ask all the questions I

8 needed. so I canceled the deposition because I was going to

9 ask the same questions.
10 Q All right. And when the State went aga1n to call
11 the witness, you re-raised your objection; correct?

12 A Yes.
13 Q And what 1s it that you would have done, had you had
14 more time in reference to that witness?

15 A well, what I would have done was go to the jail to

16 see if I could -- try to discredit the witness by showing that
17 the circumstances that he was relating, how it happened, it
18 really didn't happen because of the -- how the jail 1s
19 situated, how the cells are, and how the microphone or the
20 intercom or whatever he was relating, how it existed in the
21 jail.
22 And I wanted to prove that -- I wanted to be able to
23 go to the jail and look at that and verify to see if the
24 circumstances were really correct to say, yeah, the guy
25 actually talked to me, as opposed that he heard it in the news

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1 because there was a lot of news go1ng around at the time.

2 Q So you wished to go out to the jail and conduct an

3 investigation as to whether or not the witness would have had

4 the opportunity to hear what he claims to have heard?

5 A Right.

6 Q And did you, during the recess that the Judge

7 afforded you, make any strides toward doing that?

8 A Yes. I think that I requested -- I think I

9 requested that someone try to do -- to do that.

10 Q And what was the result?
11 A My recollection was that the jail would not allow us

12 to go into the cells, into the pods at that particular time.

13 However, I didn't -- I didn't request it myself. So I believe
14 that with proper time, it would have taken place.

15 Q But at the time you were being told you would not be
16 granted access
17 A No.
18 Q -- to do that investigation?

19 A No, I couldn't get -- the whole cell would have to

20 be vacated, so to speak.
21 Q All right. And were there any other substantive

22 witnesses that were called in the case that you did not know

23 about?
24 A Not to my knowledge.

25 Q All right. And the statements that were elicited

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1 through that corrections officer were not the only

2 incriminating statements of your client that were offered into
3 evidence; were they?
4 A Concerning this crime?
5 Q Yes.

6 A I think that they were pretty much the only ones

7 directly.
8 Q okay. what about the statements on the -- that
9 occurred on the transport? Those were incriminating; weren't
10 they?
11 A He never said that he had killed cheryl Dunlap.
12 Q well, he said that if Mr. Meggs would give him a
13 life sentence, he'd show him where the head and hands were of
14 the victim; didn't he?
15 A well, he -- Mr. Hilton was -- yes, he did. He was
16 mentally ill.
17 Q And that was offered into evidence?
18 A Yes, I think that it was.
19 Q And that was direct
20 A we lost the motion, yes.
21 Q that was direct evidence
22 A Right.
23 Q -- of an incriminating statement of your client?
24 A I guess you can say that.
25 Q You were asked about an objection that you made

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1 during Rob Friedman's questioning of Dr. wu.

2 A You know

3 Q Isn't it true -- let me ask the question.

4 A Yes, yes.

5 Q Isn't it true that it was the nonrespons1ve answer

6 of Dr. wu that caused you to intervene in that portion of the

7 proceedings, not the question of Mr. Friedman?

8 A You know, my recollection is that when I objected, I

9 was objecting to something that the State was doing. when I

10 said objection, I believe that the court didn't hear anything,
11 neither did Mr. Friedman. And I recollect that Mr. Hilton

12 then said, object. But we were telling Mr. Friedman, object,

13 is my recollection of how that happened. I was telling my
14 co-counsel, object, object to whatever it was happening, but I

15 don't recollect what was happening.

16 Q All right. so your recollection of that incident 1s
17 that you were instructing Mr. Friedman to object to
18 something
19 A Right.

20 Q -- the State was doing?

21 A Right. Something that was about it was com1ng

22 up. I believe it dealt with the video.

23 Q okay. Thank you for clarifying.

24 All right. I want to ask you about -- you were

25 asked about your mental status at the time --

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1 A Right.
2 Q --of this trial, your use of any drugs or alcohol.

3 Are you a difficult person to work with?

4 A People say that I am.

5 Q And are you a demanding person to work for if

6 someone is a member of your team during a capital trial?

7 A People indicate that I am very demanding.

8 Q All right. were you under a lot of pressure during

9 the pendency of this case and during this trial?

10 A oh, yes, I was under a lot of pressure.
11 Q And you've already testified you were working long

12 hours; correct?
13 A Right.
14 Q But did you have a mental breakdown at any point

15 A No
16 Q during the pendency of this trial?
17 A not that I recollect that I was -- no, I didn't

18 have a mental breakdown.

19 Q All right. Not that you recollect seems like you

20 could do better?
21 A No, I didn't collapse in the courtroom. I didn't
22 collapse in my office. I didn't ask somebody to help me drive
23 to my house. None of that happened.
24 Q Did you find yourself in a mental state where you
25 felt that you could not adequately prepare for or defend this

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1 case?
2 A No.

3 Q Did you abuse drugs or alcohol during the pendency

4 of this case?

5 A No, I did not.

6 Q Did you take any medications that were not

7 prescribed to you?

8 A No.

9 Q Did you appear 1n court while intoxicated?

10 A No.
11 Q Did you use any substances to the extent that your

12 preparations or performance in the case were negatively

13 affected?
14 A No.

15 Q Did you behave unethically?

16 A Borderline -- no.

17 Q what's borderline?
18 A Borderline, sometimes that I ask for mistrials a

19 lot. And, you know, I ask for mistrials a lot and maybe I get

20 the court, the judges, frustrated. But it was nothing

21 unethical or unprofessional.

22 Q Did you feel that you acted differently in the

23 office or 1n the courtroom during this case than you typically

24 act during a big capital trial?

25 A I did act a little bit different 1n the office. My

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1 recollection was I was very quiet because of all of the stuff

2 that was happening with the case.

3 Q All right. Did you feel any more stressed out than

4 you normally feel during a case like this?

5 A I was pretty stressed out. Normally -- I was pretty

6 stressed out with the other cases as well, but I just could
7 not compare because I didn't measure I was not aware that I
8 had to compare. Does that make sense?
9 Q It's been described to me that you always get spun
10 up really tight when it's trial time. would you agree with
11 that characterization?

12 A Yeah, I get really -- I mean, I get really stressed

13 out and I demand a lot from people to get ready.
14 Q And I want to ask you a little bit about the

15 continuance that you requested prior to the trial of this

16 matter.
17 A okay.
18 Q You asked, as you previously testified, for 90
19 additional days?

20 A I did.
21 Q All right. And during the 90 additional days, if

22 you had been granted those days, there would have been some

23 holidays that occurred

24 A Right.

25 Q -- the winter holidays. All right. And would you

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1 have or did you plan to take off some time during those
2 holidays?

3 A No. The assumption -- okay. when I was hired by

4 the office of the Public Defender --

5 Q Before you answer this question, I want to ask you

6 if you recall an e-mail dated November lOth, 2010, between

7 yourself and Ms. Daniels? I think it actually starts on the

8 8th and carries over to the lOth of November.

9 A I'd have to read -- I don't have my files with me

10 anymore so I really couldn't prepare. My original files were

11 g1ven to -- I believe it was to Mr. Morris. I'm not sure

12 where they were.

13 Q okay. Do you have a specific recollection of
14 e-mailing Ms. Daniels in reference specifically to your

15 holiday plans for that year?

16 A No, I don't have any recollections.
17 Q All right. would it refresh your recollection to
18 rev1ew those e-mails?
19 A Yes.

20 (Attorneys confer.)
21 MR. MORRIS: Judge, Ms. Cappleman and I just

22 conferred and this can be found in Exhibit I-E.

23 (Pause.)

24 THE WITNESS: okay. so do you want me to read the

25 whole e-mail?

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1 BY MS. (APPLEMAN:
2 Q I want you to read it to yourself.

3 A okay.

4 (Pause.)

5 A okay.

6 Q Does that refresh your recollection?

7 A Yes, it does.

8 Q And my question 1s: If you had gotten the 90-day

9 continuance that you were seeking, would some of those days
10 have been days that you planned to take off for the holidays?
11 A According to what I told my supervisor at that time,

12 I was feeling pretty burned out.

13 Q That's not my question.
14 A oh.

15 Q were you seeking to take some days off over the

16 holidays?
17 A Yes, I was seeking to -- according to that, I was
18 seeking to take some days.
19 Q All right. About five weeks off; correct?

20 A Yeah, but.
21 Q That's okay. That's all I want to ask.

22 A okay.

23 Q And it was your custom, barring something big like

24 this com1ng up, to take off that much time around that time of
25 year; correct?

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1 A Yes.
2 Q okay. And you also mention 1n those e-mails that

3 the members of your team are also planning to take some time

4 off over the holidays to be with their families?

5 A Right. can I explain though?

6 Q No.

7 A okay.

8 Q One other thing that was mentioned that I wanted to

9 specifically ask you about 1s, you know, you mentioned that
10 you had been feeling burnt out and you had been working quite
11 a bit already, pr1or to the continuance or the denial of the

12 continuance on this case; correct?

13 A Right.
14 Q In fact, you'd been working 16 to 18 hour days for

15 about six weeks leading up to the denial of the continuance;

16 correct?
17 A That sounds about right.
18 Q All right. And you put in there that you knew in
19 your heart that Judge Hankinson would deny your motion for a
20 continuance?
21 A Yeah, I did.

22 Q okay. And was this denial of a continuance the

23 first time you'd ever been denied a continuance in a trial

24 case?
25 A It's not the first time; however, it's one of the

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1 most-- it was the most important denial; if it makes sense,

2 if it makes sense.

3 Q But you'd been denied continuances

4 A Yes, but I had not --

5 Q on several occasions?

6 A but not to this detriment.

7 Q All right. so you were put in a position to have to
8 work really hard to accomplish the things you needed to
9 accomplish --

10 A Yeah.
11 Q -- 1n the time allotted?

12 A (Nods affirmatively.)
13 Q were you able to take off time for the holidays?
14 That year?

15 A I don't recollect.
16 Q But you definitely didn't take off five weeks; did
17 you?
18 A No.
19 Q Or any weeks?

20 A In paper, I didn't take the five weeks.

21 Q what do you mean "in paper?"

22 A well, every time I took vacation time to go to

23 Colombia, I worked. so 1n paper I didn't take any time.

24 Q Did you go to Colombia the months leading up to

25 Mr. Hilton's trial?

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1 A No.
2 Q Did you ever refuse to let any member of the defense

3 team v1ew any files or discovery materials in reference to

4 this case?
5 A Refuse the people to v1ew documents?
6 Q Refuse to let members of your defense team, whoever
7 they were at any given time, view materials and files
8 associated with this case?
9 A No, that's not true. I never refused. They had a
10 copy themselves.
11 Q All right. You were asked about Ms. Bohanan and you

12 talked about the ways in which she assisted you 1n your

13 preparations. Did you ever observe Ms. Bohanan to behave 1n
14 court in a way that created an ethical problem?

15 A No.
16 Q Do you know -- were you present when an incident
17 occurred in court where Ms. Bohanan was speaking to Mr. Hilton
18 1n a way that other members of the team felt was an ethical
19 problem?

20 A I was present.
21 Q All right. And what occurred in that incident?

22 A My recollection was that I was somewhere on the side

23 of the courtroom and she -- my recollection is that she

24 indicated to me that Paula saunders had told her to leave and

25 did she have to leave the courtroom. And I said, no, you

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1 don't have to leave the courtroom. And so she sat down.

2 And then I saw -- I saw Friedman going out. And

3 then after that, I saw Friedman and Andy Thomas coming in and

4 I guess asking Merribeth to leave. I didn't become involved

5 1n that.
6 Q okay. so I guess I didn't ask the right question.
7 what I wanted to know is did you observe the conduct that led
8 to Ms. saunders asking Ms. Bohanan to leave the courtroom?
9 A No, I did not hear anything anything bad that she
10 had done to communicate with the client. I didn't hear
11 anything that she had said to the client that was out of the

12 ordinary.
13 Q okay. But whatever that incident was, it was
14 addressed and Ms. Bohanan was not present any longer in the

15 courtroom after that? Is that correct?

16 A she was kicked out of the courtroom, yes.

17 Q For the remainder of the trial?
18 A she was asked to go, yes. she was not present.
19 Q There was an issue raised concerning the state --
20 the mental state of your client during the trial. were you
21 able throughout your relationship with Mr. Hilton to have good
22 communication with him or a good working relationship with
23 him?
24 A Yes. My recollection was that he was somewhat
25 sedated maybe, a little bit kind of sleepy.

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1 Q Did you ever have an opportunity to observe

2 Mr. Hilton when he was not medicated?

3 A oh, yes.

4 Q when was that?

5 A I had the opportunity to talk to him in Georgia when

6 I first got -- went to meet with Mr. Hilton, and several times

7 visiting at the jail when he first got here.

8 Q And what was his behavior like when you observed him

9 on those occasions?
10 A He -- I'm not a mental health expert, but he was
11 mentally disturbed or ill. He would talk and ramble and

12 ramble and jump from subject to subject. And he would -- he

13 would start a conversation with you and then all of a sudden
14 he would be talking about something else that had nothing to

15 do with that conversation that he was having at hand.

16 He was preoccupied as to the price of gasoline. He
17 was preoccupied as to females in the world. He was
18 preoccupied to defense lawyers being female and he was
19 preoccupied about a lot of things. And he would just jump
20 from subject to subject. Mostly though he was preoccupied
21 about gasoline, the prices of gasoline.
22 Q All right. And once you encountered Mr. Hilton when
23 he was medicated, were you able to then have a more rational
24 conversation with him?

25 A Right, yes.

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1 Q All right. And were you able to communicate

2 rationally with him throughout the court proceedings and this

3 trial?
4 A My recollection was that I was.
5 Q How many times did you meet with Mr. Hilton pr1or to
6 his trial?
7 A I'm not sure how many times, but the policy was that

8 the mitigation specialist would meet with him at least once a

9 month or once a week, I believe it was.

10 Q so Ms. Betty Fuentes met with the client on multiple
11 occas1ons when you were not present?

12 A oh, yes. The mitigation specialist needed to go

13 over there to build rapport with Mr. Hilton so Mr. Hilton
14 we were able to get all this information about his life.

15 Q All right. And when you visited Mr. Hilton, how

16 much time would you typically spend?
17 A Probably 45 minutes to an hour.
18 Q And would you say that occurred on five, ten, 20
19 occasions? can you g1ve us a ballpark how many times you met
20 with him?
21 A I cannot -- I cannot tell how many times. The jail

22 would have an accurate record.

23 Q Okay. And did you --

24 A That depends on the case, how it was. Sometimes I
25 would not go and then sometimes it seemed like I would go like

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1 a lot and sometimes it seemed like I didn't go for an extended

2 period of time, you know. It depends on how the case was

3 progressing I guess.

4 Q okay. Is it fair to say you met with him more than

5 ten times

6 A oh, yes --

7 Q throughout your representation?

8 A I think so; oh, yes. But I think Betty Fuentes

9 met with him almost weekly.

10 Q And we've had some discussion already today on the

11 record about the evidence against Mr. Hilton and how your

12 op1n1on was that it was considerably damning?

13 A Right.
14 Q was Mr. Hilton realistic about the evidence against

15 him? Did he understand or appear to understand it as you

16 explained it to him?
17 A At the beginning I don't even think that he -- I
18 mean, I just -- I just -- I just talked to him and he was able
19 to discuss several issues with me as well.

20 Q And in fact he was interested in entering a plea 1n

21 this case; was he not?

22 A oh, yes, he was.

23 Q And serv1ng a life sentence 1n the case?

24 A Right.

25 Q All right. what efforts did you make to get the

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1 plea to go through?
2 A I -- my efforts started before the case was even

3 taken to the grand jury. I remember talking to Mr. -- I

4 talked to willie Meggs. I talked to you several million times

5 probably.
6 I attempted to even contact his family to see if
7 the family of the cheryl Dunlap. Sometimes I used to hire a
8 liaison, so to speak, that would be like a person that will
9 be -- would be good for the -- would help the victims or the
10 survivors of the victims cope with the laws. And they will
11 explain how the game, the legal game was going on. And

12 sometimes I would use those people to see if they would be

13 amenable to life in prison.
14 Q But ultimately you were not able to secure a plea
15 offer --

16 A No, I was not able to.

17 Q -- from my office?

18 A No.
19 Q And that was in spite of multiple meetings with
20 myself and/or Mr. Meggs?
21 A Many, many, many requests.

22 Q And so you were in a posture of go1ng to trial?

23 A Right.

24 Q okay. And you have been asked quite a bit about

25 your strategy 1n reference to the guilt phase. And the way

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1 that I describe your strategy is scorched earth. And what I

2 mean by that is, concede nothing. was that your strategy

3 throughout the time that you were prepar1ng for this case 1n

4 the event that you were go1ng to have to try it?

5 A Mr. Hilton wanted a trial and I wanted to make sure
6 I was able to preserve all the issues that were -- that were
7 there to preserve. so if that's the name of preserving the
8 issues during the trial, I guess that's the name. But I was
9 there to object and to move for a mistrial when I thought it
10 appropriate and.
11 Q But another strategy might have been to select a few

12 things that you thought you could make the most headway on and
13 stick to those; so more of a sniper approach. why did you
14 select

15 A I actually concentrated only on the -- on the ma]or

16 1ssues. It was just that at the very last minute when the
17 State started introducing all of the -- what I used to call
18 trash from Mr. Hilton's vehicle, that I didn't see that it was
19 relevant for anything that I remember filing -- you know,
20 objecting to the introduction of that because I knew that if I
21 didn't, they were going to -- they were going to -- later on

22 they were going to say that he used it for the murder, which
23 was not true. so I needed to object to those.
24 Q All right. And my recollection is that you had some
25 success there because I ended up having to scramble to find

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1 another witness to get those items in.

2 A well, maybe so, but I wanted to preserve whatever it

3 was whatever it was I was able to preserve for his sake.

4 Q okay. And also you were interested in precluding

5 the State from admitting that evidence, if possible?

6 A Right, if possible; oh, yes.

7 Q And if you had been successful on that account that

8 we're speaking of 1n particular, those items contained the DNA

9 evidence that the State introduced --

10 A Right, right.
11 Q -- which was pretty important evidence against your

12 client?
13 A Yes.
14 Q You argued that the beads were not a match, that

15 that sc1ence was not valid?

16 A Right.
17 Q You argued that the toolmarks were not good science?
18 A Right.
19 Q And you had an expert presented --

20 A Right.
21 Q And that the DNA was contaminated; and there was at

22 least one instance of a contamination.

23 A Yes, yes, I argued that.

24 Q All right. And was Mr. Hilton aware of and on board

25 with these strategies?

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1 A Per se, per se that Mr. Hilton told me, Ines, I want
2 you to fight every single evidence, no. But Mr. Hilton wanted

3 to go to trial. And to me, go1ng to trial means to preserve

4 everything that you can preserve.

5 Q You don't recall him telling you that he wanted you

6 to fight every single thing?

7 A He must have -- yeah, I think he said maybe one time

8 at the very beginning.

9 Q Do you recall him telling you that he wanted you to

10 drag out the proceeding and make it as expensive as possible
11 for the State?

12 A I remember him -- I remember him offering plea

13 offers to save taxpayers' money.
14 Q All right. You talked a little bit about a

15 discussion that occurred in Nancy Daniels' office where

16 another theory of defense was batted around, which was
17 introducing that the Ritalin caused a mental break. And that
18 was to explain his behavior and doing so in the guilt phase.
19 A Right.

20 Q And I think you talked a little about who was

21 present, but remind us who was present at that meeting?

22 A That meeting took place in Nancy Daniels' office and

23 there was Rob Friedman was present, Nancy, of course, was

24 present, and Paula saunders, and Betty Fuentes, and Chris

25 Ellrich, and I think Merribeth was there. The whole team was

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1 there.
2 And the issue was there because I had started to say

3 something about presenting evidence that Mr. Hilton was taking

4 a prescribed medication, Ritalin, in the guilt phase, pursuant

5 to a statute that allowed evidence of -- it was almost like an
6 insanity type of defense without calling it insanity, per se,
7 but introduce evidence of the mental health, that he had taken
8 that medication.
9 And we had researched and we found a case I believe
10 and we had that meeting in Nancy Daniels'. I wanted to
11 present it during the -- during the guilt phase, but there are

12 several several on the team that didn't want to present

13 that.
14 Q And that would have changed your trial strategy

15 considerably to introduce the

16 A Yes, I would probably have called all their
17 experts -- the experts. Not their experts, but I would have
18 called McClaren. And, you know, I didn't know what experts
19 they were going to call, but I would have called McClaren.

20 Q when you say "they," you're talking about the

21 penalty phase lawyers?

22 A The lawyers, the lawyers that were assigned;

23 Friedman, and saunders, and Nancy Daniels.

24 Q All right. So ultimately that strategy was decided

25 against?

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1 A No, it was decided that it was better left for the

2 penalty phase.

3 Q All right. So you decided not to introduce it

4 during the guilt phase?

5 A so it was decided not to introduce that evidence

6 during the --
7 Q was this something that was discussed, that
8 introducing that in the guilt phase would have opened the door
9 to any bizarre or criminal behaviors that predated the Ritalin
10 use?
11 A No, that -- the open1ng the door to other things was
12 never even dreamed of, I guess. we were never -- we never
13 discussed that stuff. It was a way to soften the blow, so to
14 speak. Just as I wanted to introduce during the penalty phase

15 the evidence that Mr. Hilton had his dog in the Department of
16 Law Enforcement, his dog of many years, Ranger, he still has
17 him there, you know, during the trial.
18 Q okay.
19 A You know, it was just it was just a talk about
20 what to do in the guilt phase is what I -- you know, and the
21 penalty phase.
22 Q Did you feel that something you did during the guilt
23 phase harmed the theory of the penalty phase?
24 A I don't remember having that defense. All I
25 remember having -- saying during the trial was that the

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1 evidence did not prove first degree murder and go with it.
2 You know, it is almost like there is a reasonable doubt, you

3 know that phrase, conflict in the evidence, lack of evidence.

4 I remember saying there was a bunch of trash that

5 had been found in different sites that didn't prove anything
6 and they didn't prove -- I don't remember having like --

7 talking about circumstantial evidence or direct evidence or

8 anything with the jury.
9 Q All right. And Mr. Hilton had an absolute right to
10 force the State to prove those allegations against him?
11 A oh, yeah.

12 Q And then he had a right to present mitigation 1n the

13 penalty phase?
14 A Yeah, he has the right.

15 MS. CAPPLEMAN: One moment, please.

16 (Attorneys confer.)
17 MS. (APPLEMAN: Nothing further.
18 THE COURT: How long are you going to be,
19 Mr. Morris?
20 MS. MORRIS: Short, Judge.
21 REDIRECT EXAMINATION
22 BY MR. MORRIS:

23 Q I'm going to start where you left off. You

24 indicated that you don't recollect having a defense in the

25 case; correct?

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1 A No.
2 Q So there wasn't anything -- in the absence of a

3 defense, there wasn't anything developed into how to segue

4 into the penalty phase. It was as you mentioned, or as

5 Ms. Cappleman mentioned, scorched earth?

6 A No, because I didn't even know what the penalty

7 phase was going to be.

8 Q So scorched earth because we don't know what's go1ng

9 to happen with the rest --

10 A Right, basically.
11 Q And I want to clarify Ms. Bohanan being kicked out

12 of the courtroom.
13 A okay.
14 Q It wasn't the Judge that kicked her out, it was her

15 own trial team, the Public Defender's office?

16 A No, the Judge the Judge I don't think was aware.
17 I think that -- I think it was early 1n the morning, I believe
18 it was, or maybe early in the afternoon after a break or
19 something. And I recollect that it was the people in the

20 office of the Public Defender. I think it was Paula saunders.

21 Q They're the ones --the trial team ended up removing

22 another member of the trial team for whatever actions;

23 correct?

24 A That's my recollection.

25 Q okay. You indicated earlier that the case -- by the

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1 time that you got to November and December of 2010 and January
2 of 2011, the case was not prepared for trial; correct?

3 A The penalty phase was not prepared for trial.

4 Q why did you move to continue then?

5 A Because I needed to prepare the penalty phase. I

6 was 1n charge of the whole case at that time. And I wanted to

7 continue to be able to handle the penalty phase like I always

8 did with the other cases that I tried.

9 Q For some reason, I was of the impression that

10 Mr. Friedman was in charge of that.
11 A Mr. Friedman was 1n charge of that, but I was the

12 lead lawyer.
13 Q okay.
14 A Once Nancy Daniels made him the lead lawyer for the

15 penalty phase, that's when I -- I didn't become aware of what

16 he was go1ng to do. Does that make sense?

17 Q so you're the lead lawyer in the penalty phase, but
18 you have no idea what's go1ng to be presented in the penalty
19 phase and you need to move to continue because the penalty
20 phase is not prepared, even though you've got no control over
21 it?

22 A when I asked the Judge for a 90-day continuance I

23 was the lead lawyer and I asked for a 90-day continuance and
24 the 1ssue was that the case was not prepared. I was not
25 prepared.

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1 Q And was the reason that the case was not prepared is
2 because it was your hope and desire that the case be resolved

3 through a plea and because of that, work was not done on the

4 case?
5 A No, because I was from day one -- the State was not

6 budging in the plea. I mean, I even -- I begged them.

7 Q so Mr. Friedman and Ms. Fuentes and Ms. Bohanan,

8 Ms. saunders and all of the people that were associated with

9 the penalty phase, they had failed to prepare the case?

10 A No, we were preparing -- okay. we were prepar1ng

11 the penalty phase with Mr. -- Ms. Fuentes. I was prepar1ng

12 the penalty phase, together with Rob Friedman. There was a

13 period of time after the Judge didn't grant us the continuance
14 when there had to be a split. And that split fractured the

15 defense. The split caused Rob Friedman to be the lead lawyer

16 in the penalty phase, and I became the lead lawyer on the
17 guilt phase.
18 And that kind of fractured, so to speak, the
19 defense. One was not talking to the other. I didn't know
20 what was in the penalty phase and I'm sure Mr. -- I don't know
21 if Mr. Friedman knew what was go1ng on in the guilt phase. I
22 don't know, you'd have to ask him.
23 Q Ms. Cappleman asked you about your requested
24 vacation time and those e-mails and that sort of thing. was
25 that part and parcel of the reason that the penalty phase

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1 wasn't prepared?
2 A No. You know, every time that I went to work

3 actually -- I went to go on vacation, I worked. I mean,

4 people in the office of the Public Defender knew that every

5 time that I left to go to work, I left a list of what needed

6 to be done for that specific time that I was going to be gone.

7 And, I mean, I'm talking about motions needed to be

8 filed, motions needed to be -- not filed, but motions needed

9 to be done and things needed to be done. I even -- even when

10 I was on vacation, I even attended hearings by phone from

11 colombia. so the fact that I was on vacation didn't mean that

12 I was going to be sitting and doing nothing in the case.

13 Q Ms. Cappleman also asked you about the roughly 100
14 capital cases that you had been associated with and the

15 results of those and that sort of thing. of those 100 or so

16 capital cases, in how many of them was it that the lawyers
17 didn't talk between the guilt phase and the penalty phase and
18 have a consolidated and understood strategy?
19 A None. This is -- this is the --Mr. Hilton's case,

20 unfortunately, was fractured.

21 MR. MORRIS: Thank you, Ms. Suber.

22 THE COURT: You can step down. Do you want to keep

23 her subject to recall?

24 MS. CAPPLEMAN: Yes, Slr.

25 THE COURT: All right. You rema1n under subpoena.

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1 But I guess you have a number where you can reach her?
2 MS. CAPPLEMAN: Yes, sir.

3 MR. MORRIS: Judge, here is my suggestion. Dr. camp

4 1s scheduled at 1:00, as a professional, I'm sure.

5 Mr. Lanasa and I are going to get in touch with them

6 because obviously from a scheduling perspective, I would

7 speculate that Your Honor would give court personnel

8 until 1:30.

9 THE COURT: we can do 1:15, I think, 45 minutes.

10 MR. MORRIS: Bottom line is I'll make sure that we
11 get ahold of them and let them know that they're going to

12 have to wait on us.

13 THE COURT: what time? I think 1:15 would g1ve us
14 enough time.

15 MR. MORRIS: That's fine, 1:15 is fine. And I think

16 Ms. Fuentes is here. obviously we didn't get to her this

17 morning, but I think Delcher, Dr. Delcher's testimony
18 this afternoon will be relatively short and we can take
19 up Ms. Fuentes after that.
20 THE COURT: so we'll resume at 1:15.
21 (Luncheon recess taken from 12:30 p.m. to 1:17 p.m.)
22 THE COURT: Be seated, please. You may call your

23 next witness, Mr. Morris.

24 MR. MORRIS: Judge, the defense would call Dr. camp.
25 And I believe you are able to control the volume, Your

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1 Honor.
2 THE COURT: Yes. Go ahead, Mr. Morris.

3 MR. MORRIS: Dr. camp, just testing to see whether

4 or not you can hear the audio. can you hear us okay?

5 Dr. camp, can you hear us?

6 THE COURT: Okay. Try aga1n.

7 MR. MORRIS: Dr. camp, can you hear us okay? He

8 could hear me just a minute ago.

9 UNIDENTIFIED MALE SPEAKER: When you first

10 connected, we could hear you --
11 MR. LANASA: But there was not video.

12 UNIDENTIFIED MALE SPEAKER: but now we can't hear

13 you.
14 THE COURT: Are you able to hear from this

15 microphone?
16 MR. MORRIS: Dr. camp, any change? Dr. camp, you
17 can hear me now?
18 Are you trying to adjust the audio there?
19 UNIDENTIFIED MALE SPEAKER: We do have a telephone

20 1n this room, if you need to call in. we can -- there is

21 actually a phone number that I could use that will bring

22 you right into the video conference.

23 MR. MORRIS: Tell me the number, please. That way I

24 can g1ve it to the Judge.

25 UNIDENTIFIED MALE SPEAKER: That number -- bear with

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1 me for one second.

2 MR. MORRIS: Yes, s1r. Dr. camp are you able to

3 hear me now?

4 MR. LANASA: Apparently not.

5 UNIDENTIFIED MALE SPEAKER: Okay. Alex, the phone

6 number to dial in to this video conference is

7 699-800-6833 and the meeting ID is 414-579-119.

8 (off-the-record discussion.)

9 (Pause.)
10 (Conference call initiated.)
11 THE COURT: All right. You may proceed, Mr. Morris.

12 MR. MORRIS: The defense would call Dr. camp.

13 And if I can ask the notary or person who is
14 authorized to administer an oath 1n the state of virginia

15 to please swear the doctor.

16 whereupon,
17 NORMAN M. CAMP
18 was called as a witness, having been first duly sworn, was
19 examined and testified as follows:

20 DIRECT EXAMINATION
21 BY MR. MORRIS:

22 Q can you state your name for the record, please?

23 A Norman M. camp.

24 Q And spell your last name for the benefit of our

25 court reporter.

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1 A C-A-M-P.
2 Q All right. And, Dr. camp, are you presently

3 employed?

4 A I teach at the Medical college of virginia, virginia

5 Commonwealth university, couple days a week. That's it.
6 Q okay. Let me talk to you a little bit about your
7 educational background. what is your educational background?
8 A I am a physician who underwent specialty training in
9 psychiatry. That's primarily it.
10 Q And so where did you obtain your undergraduate
11 degree?

12 A undergraduate work was at the university of Florida.

13 Q okay. what was your degree in?
14 A I did not get a degree.

15 Q You did not get a degree from the university of

16 Florida?
17 A Negative. I was fast-tracked to medical school.
18 Q Fast-tracked to medical school, okay. And where did
19 you attend medical school?

20 A university of Tennessee.
21 Q And you obtained an MD from the university of

22 Tennessee?

23 A That's correct.

24 Q All right. And 1s there -- the particular specialty

25 that you have 1s psychiatry; is that accurate?

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1 A Following medical school, I did four years of

2 training in psychiatry.

3 Q And is that like a residents program?

4 A Correct, that's exactly what it 1s.

5 Q And where did you do that at?

6 A That was part of the -- the first year was at

7 Letterman Army Hospital 1n San Francisco. The remaining three
8 years was at walter Reed Hospital in washington.
9 Q okay. And if you could, tell us a little bit about
10 your practical experience, practice, et cetera.
11 A All right. Essentially I did 20 years of serv1ce 1n

12 the Army before I retired in 1988. From there, I went to

13 Richmond, virginia, was half time on the faculty at the
14 university I mentioned earlier. I was director of

15 psychotherapy training for the residents in training there and

16 was in private practice of psychiatry and psychotherapy and
17 psychoanalysis.
18 Q And based on your 20 years in the military, are you
19 particularly familiar with psychiatric and psychological
20 records that are associated with military service?
21 A That's correct.
22 Q okay. And have you been called upon previously,

23 separate and apart from this case, to evaluate military

24 medical records, psychological and psychiatric records in

25 other instances?

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1 A Not for the court.

2 Q Okay. But have you been 1n other instances to be

3 able to evaluate 1n circumstances?

4 A I've been involved for decades on and off in

5 studying the psychiatric records from vietnam, military

6 psychiatry records from vietnam.

7 Q And do you find yourself 1n a circumstance of

8 rendering opinions based on what it is that you end up

9 rev1ew1ng and reading?

10 A well, I haven't had to render professional op1n1ons
11 on what I'm reading. what I've been trying to do is integrate

12 what were the findings of the individuals who provided those

13 records that I reviewed.
14 Q And you're able to suffice it to say, are you 1n

15 a better position to be able to interpret what military

16 records you're reviewing than the average citizen would be?

17 A I would agree with that.
18 Q okay. Is it because of the specialization of the
19 military records and the policies and procedures of the

20 military?
21 A That would be correct.

22 Q Did you have an opportunity to rev1ew Gary Michael

23 Hilton's psychiatric records related to his service in the
24 united States Army?

25 A well, I had an opportunity to rev1ew the records

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1 that were provided me. It would be a mistake to say that I

2 reviewed all the records that pertain to him.

3 MR. MORRIS: And, Judge, and Ms. Cappleman, for the

4 court's benefit, this would be Exhibit II-A that Dr. camp

5 reviewed.
6 BY MR. MORRIS:
7 Q Dr. camp, if you could provide some information and
8 backdrop in terms of what records you had the opportunity to
9 rev1ew related to Mr. Hilton.
10 A All right. In the course of this, am I allowed to
11 look at my notes?

12 Q If you need the opportunity to refresh your

13 recollection, you may refer to your notes.
14 A All right. okay. I will do that. Hold on a second

15 here.
16 There's two -- there's two lines of records that are
17 pertinent. And one is from the command and the other would be
18 from the medical records. The records from the command are
19 were sketchy. And primarily I had a summary, let me see, of
20 the counseling, a summary from a Captain Poor, who was
21 documenting the information for -- that the application for
22 Mr. Hilton to receive a discharge from the Army, an
23 administrative discharge for unsuitability under the Army
24 regulations that pertained at the time.
25 And so what I had there was a summary of his

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1 counseling of -- I think it's four incidents of counseling

2 with Mr. Hilton prior to this decision, or in conjunction with

3 the decision to separate him from the Army.

4 As far as the medical records go, I was able to see

5 a medical note from a Captain G, I could not read it was a

6 handwritten signature -- regarding what the findings were 1n

7 wiesbaden, Germany, on 12 March 1967 when Mr. Hilton appeared

8 there and sought help. I don't know how much detail you want
9 me to get into for that. Then I was able to read a -- pardon
10 me, let me back up.
11 From that appearance at the emergency room, he was

12 hospitalized in an Army hospital. And then I was able to read

13 a one-page, handwritten discharge note from a doctor, a
14 Dr. simon. And then I was able to read a report of

15 psychiatric evaluation which he constructed shortly well,

16 upon essentially the discharge of Mr. Hilton from the
17 hospital.
18 And then I was able to see the -- I can g1ve you the
19 Army Europe form number basically, but it talks about why --
20 why Dr. Bowman -- excuse me, why Dr. simon is recommending or
21 clearing, I'm sorry, Mr. Hilton for discharge, subject to the
22 decision of command, discharge from the Army. And that has
23 information in it as well about his mental state.
24 Q okay. And if you could, walk us through
25 chronologically, based on your review of the military

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1 documents associated with, as I understand it, the command

2 line of documents and then also the medical line of documents,

3 walk us through the chronology of Mr. Hilton's time in the

4 Army.

5 A well, all right. There are other records that I was

6 provided that are essentially official records, an overview of

7 his enlistment in the Army. And so I have dates of those, but

8 not this kind of information associated with it. so if that's

9 what we're talking about here, I'll give you that.

10 In February of 1964 he enlisted in the Army. I
11 don't have the precise date, but s1x months or so later, the

12 summer of '64, after he finished his basic and individual

13 training in the united States, he was reassigned to Europe, to
14 a division in Europe. That's the only unit he was in until he

15 was discharged from the Army in July of 1967.

16 Now to g1ve you more particulars that seem to
17 pertain here, he did very well -- I don't know if you want me
18 to elaborate on this but he did very well and was, in April
19 of 1966, was allowed to be part of what's called the Davy
20 Crockett unit there -- reassigned I guess would be the right
21 term to the Davy Crockett unit, which is a specialized unit
22 handling tactical nuclear weapons. It's a high status
23 position and with high performance requirements; apparently
24 has a security clearance associated with it and so on and so
25 forth. That's April of 1966.

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1 A month later in May of 1966, he was noted on his

2 testing for his Military Occupational Specialty, that is what

3 he's supposed to be doing in the Army, he got four marks

4 across the board, which was very out of alignment with his
5 being accepted into the Davy Crockett unit.
6 In June of 1966, despite that, that's one month
7 later, he was promoted from his previous rank of PFC to
8 Specialist Fourth class. And then in December of '66, which
9 is roughly six months later, he received his first counseling
10 from his commander for poor performance.
11 Q Let me stop you for just a moment. when Mr. Hilton

12 first entered into the military, he took some sort of testing

13 for proficiency performance in order to identify what his MOS
14 was going to be and that's how he was placed in the Davy

15 crockett unit; is that correct?

16 A It wouldn't be upon his -- this wouldn't have

17 happened upon his initial enlistment. It would have happened

18 following his basic training and his advanced individual
19 training. And, by the way, he also did JUmp training and was
20 parachute qualified. So he had another kind of training as
21 well and he excelled in all of these. He apparently scored
22 well enough in Europe that they thought that he was acceptable
23 for this Davy crockett unit.
24 Q So his performance after basic training, through
25 JUmp school, through additional training then qualifies him

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1 for assignment to the Davy Crockett unit. And then after his
2 assignment to that particular unit, he 1s then -- there is

3 some sort of testing that he undergoes and your indication was

4 he performed poorly in that testing, which was contrary to all

5 of the other indications that had preceded.

6 A That's correct.
7 Q okay. And then was there any particular result

8 for 1n terms of demotion, reassignment, or anything of that

9 nature based on the poor performance or what happened?

10 A well, the records that I have do not show any
11 consequence for this. May I introduce the other sort of wild

12 card here? He was very eager for Special Forces training.

13 And in the midst of this time period we're talking about, he
14 applied and was recommended for Special Forces training. And

15 that did not happen and there's no records to help us

16 understand why that didn't happen. But his commander thought
17 that he was well-qualified for this at the time.
18 Q So there's a gap -- there's a gap in information
19 that he was recommended, accepted, but the training was not

20 provided?
21 A He was not -- he would have had to have been sent

22 back to the States for that and was not sent back to the

23 States.
24 Q okay. And so we've got evidence of poor results in

25 his testing, which is inconsistent with pr1or performance and

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1 testing. we've got him having been -- desirous of training,

2 Special Forces training, and having been accepted but no

3 evidence of that training having occurred.

4 A You broke up a little bit, but I think that's

5 correct.

6 Q And then thereafter you indicated that there's a

7 passage of time of approximately either four or six months and
8 he received what you referred to as his first counseling?
9 A Correct, December of '66.
10 Q Explain what that means for us folks not 1n the
11 military.

12 A well, I wish I had the details, but I told you

13 before that I had summary statements from his commander that
14 summarized the span of time.

15 So I can't quite it's not clear what they were

16 trying to get to him about with respect to, but what they have
17 1n the statement 1s: Certain character traits, later referred
18 to as undesirable, displayed by Specialist Hilton made him
19 undependable for a sensitive position.

20 Q And is that --when you say his first counseling,

21 were there counselings that occurred thereafter, or no?

22 A Yeah, that was the first one that he had, according

23 to these records. And I failed to include here, that's when

24 he was relieved of his position 1n the Davy Crockett unit.

25 Q okay. And so that was December 1st of 1966; was it

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1 not?
2 A Correct.

3 Q And then the next instance, it said that he was

4 displaying character traits as undesirable for assignment to

5 that particular unit; correct?

6 A Correct.
7 Q But there's not further elaboration to help you to

8 understand exactly what those character traits may or may not

9 be?
10 A That's correct. And in this one statement that
11 summarized all these -- now this is also following his

12 hospitalization which we can talk about -- but it says that he

13 is not capable of performing any regularly-assigned duties,
14 his conduct is unsatisfactory, and his proficiency is

15 unsatisfactory.
16 Q And shortly thereafter, some approximately three and
17 a half, four months later, that's when his second counseling
18 occurs; correct?
19 A No, I don't -- let me see what I've got here. First

20 one 1s December. The one that was critical, I guess it's

21 No. 2, is -- when he was hospitalized, he also was relieved of
22 another position as the chemical, biological, and radiologic
23 sergeant within the unit. And apparently he was becoming more
24 and increasingly less reliable from the military standpoint.
25 It doesn't sound like it's many months. It's a couple, two

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1 and a half or three maybe.

2 Q And you base that on his release from the hospital

3 on April the 3rd, 1967, from psychiatric observation?

4 A Correct. That's also the point at which the

5 psychiatrist, Dr. simon, had rendered what they call a

6 certificate that basically certifies that he has a personality

7 disorder, according to the Army's language, and it g1ves

8 essentially command permission to fast-track his discharge

9 from the Army, administrative discharge.

10 Q so in April of 1967, the Army has identified some
11 sort of personality trait or disorder that it believes allows

12 it to fast-track his discharge from the armed services?

13 A Correct.
14 Q And was that -- did that discharge occur?

15 A Correct, it did. He was -- it takes a while to

16 process. There's also a discharge medical exam he has to go
17 through. And he was finally released in July -- July 14th of
18 '67.

19 Q what -- and I guess backing up, that helps us with

20 the procedural aspects, but what psychiatric information 1s

21 contained in the military records that you were able to

22 review?

23 A All right. The first observation came 1n I'm not

24 sure the dates are right, but anyway -- 12 March 1967. And
25 the physician who saw him in the emergency room at an Air

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1 Force hospital in wiesbaden, who I'm calling Captain G

2 Q And let me interrupt you for just a moment,

3 Dr. camp. wiesbaden, W-I-E-5-B-A-D-E-N; correct?

4 A W-I-E-5-B-A-D-E-N, correct, yes.

5 Q Thank you, s1r. carry on.

6 A okay. what I have is limited, but the complaint or

7 even the observation was extreme anxiety and agitation.
8 Q And that is in March of 1967 at the u. s. Air Force
9 hospital?
10 A Correct.
11 Q And was that a hospitalization or outpatient care or

12 can you tell?

13 A well, he ends up -- he starts, let's say, in the
14 emergency room or emergency department. I don't have

15 necessarily everything that happened, but it appears as if he

16 was transported from there to the-- to the Army hospital, I'm
17 not sure where that 1s. Anyway, the Army hospital. I'll find
18 it. But it was not -- well, I can't find it easily. Anyway,
19 go ahead.
20 Q So he's seen in the emergency room and then was he
21 treated with any particular medications or anything of that
22 nature?

23 A There is no evidence that he was treated with

24 medication. But what should be highlighted is that he had
25 been on a medication from his physician psychiatrist,

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1 Dr. Bowman, which apparently was started 1n -- apparently was

2 begun in January of '67.

3 Q So January of '67 until this episode in March of

4 '67. And what medication, if any, do the records reflect that

5 he was placed on?

6 A He was on Thorazine or chlorpromazine.

7 Q what does Thorazine do?

8 A well, it's labeled an antipsychotic. That's the

9 category under which it falls. It's also called a
10 neuroleptic. But what it does also is simply help with
11 anxiety. So the fact that it's called an antipsychotic 1s not

12 limiting its use to people who are psychotic.

13 Q So we have the doctor who places him on Thorazine 1n
14 January of '67. we have a hospitalization that occurs 1n

15 March of '67. And then take us from there in terms of what

16 the psychiatric records reflect.
17 A well, what's missing is really a proper hospital
18 record which would have daily observations and the like. what
19 I end up with after two and a half or so -- two weeks of a
20 hospital stay or so 1s a one-page, handwritten discharge note
21 from his psychiatrist, Dr. Simon, there, dated April 3rd.
22 And evidently he was 1n charge of his treatment,
23 Dr. simon. And so it indicates that he was admitted following
24 this anxiety reaction and also that there was a complaint by
25 Mr. Hilton of having hallucinations. The observation --

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1 aga1n, the summary 1s that during his stay in the hospital,

2 he functioned at a high level, that's a quote. He was given

3 psychological tests, which at that point were pretty -- at

4 this time historically were pretty sophisticated. They were

5 indicative of instability, but not psychosis.
6 Q okay.

7 A Thorazine

8 Q Go ahead, go ahead.

9 A The Thorazine that he had been on when he was

10 admitted was discontinued. And the summary indicates there
11 was no evidence of a persistence or an increase in his

12 anxiety. It also -- it does not mention any hallucinations.

13 It doesn't say there were no hallucinations either. But the
14 summary mentions a questionable history of hallucinations;

15 mean1ng that there's every likelihood that this was not

16 confirmed by observation.
17 Q was there any correlation with the manifestation of
18 Mr. Hilton's psychiatric behaviors or problems, correlation
19 with his conduct or when he may have received counseling, et
20 cetera?
21 A I'm not sure I follow your question.

22 Q His conduct in terms of any issues with authority or

23 command staff, was there any correlation in terms of his
24 hospitalizations or being provided medications?
25 A well, that's the missing information, truthfully.

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1 Q okay.
2 A I wish I could answer that, but I cannot.

3 Q And so shortly after the Thorazine and then the

4 March hospitalization, Mr. Hilton, was he admitted to the

5 hospital for a lengthier period of time?

6 A I'm sorry, you broke up during that.

7 Q After the March hospitalization, was there a

8 subsequent one where he was admitted to the hospital for a

9 lengthier period of time?

10 A was there three hospitalizations? No, s1r.
11 Q was there an instance that he was admitted to the

12 hospital for a lengthier period of time?

13 A oh, I'm sorry. I heard you and the answer 1s no.
14 There was not a second hospitalization.

15 Q okay. And so how long was he 1n the hospital?

16 A As best I can tell, two-and-a-half weeks.
17 Q Two-and-a-half weeks. And it was during those

18 two-and-a-half weeks that testing was conducted as you

19 indicated that said that he was stable, not psychotic, but

20 this was when the results are forwarded to command staff to

21 say that he is no longer desirable for the Army?

22 A well, you're right up to a point. what the

23 certificate, as I referred to it earlier, the psychiatric

24 certificate basically says 1s we have established that he has

25 a personality quality and he would fit the regulation, if you

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1 chose, Commander, if you chose to discharge him from the Army

2 under a particular regulation as unsuitable; but it's up to

3 you to decide whether he really is redeemable or not from the

4 standpoint of the Army's performance needs.

5 Q okay. And I'll come back to kind of how the Army
6 deals with those things in a moment. But in layperson's
7 terms, it essentially communicates to command staff that if
8 you want this guy out of the unit, here's your opportunity to
9 get him out of the unit?
10 A Correct.
11 Q Otherwise

12 A It's out of the unit, but it's out of the Army.

13 Q understood, my apologies. Otherwise, Commander,
14 then you're making the decision that you're going to retain

15 him and you're going to be responsible for what ensues?

16 A Right.
17 Q okay.
18 A Correct.

19 Q Let's talk about -- a little bit about the Army's

20 perspective on what are the objectives of the military when
21 conducting these type of psychiatric evaluations as compared
22 to what the objectives would be for a civilian person.
23 A The first part of that I lost. You broke up a
24 little bit. can you say that again?
25 Q Yes, sir. what objectives would the military be

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1 attempting to arr1ve at 1n these type of psychiatric

2 evaluations as compared to a normal civilian undergoing

3 would they be different objectives and different concepts?

4 A okay. I follow you. It might be comparable for an

5 employer who is trying to assess whether the individual is
6 performing -- I mean, we could get into more particulars
7 according to the needs of the organization. That's what the
8 u.s. military needs to have. There are all sorts of factors
9 that pertain, but it's essentially, ultimately, bottom line,
10 are you working for us or are you not? And so in that sense,
11 it would be similar.

12 Q Fair to say though that it 1s not a focus of a

13 treatment regimen? The objective 1s not to discover what
14 treatment needs to be afforded to the individual, it's whether

15 or not the person can do their job?

16 A Correct. And to be fair, the military, under other

17 than totally arduous circumstances, wants to try and help
18 people recover their function if they've lost it or to build
19 character, if they need it, if they still need to do that.

20 so there are rehabilitative efforts that can be

21 done. There is treatment. In this division that he was

22 assigned to, there was a division psychiatrist. He would have

23 personnel working for him who could serve as counselors, who

24 could serve as therapists, who could support someone who 1s

25 trying earnestly to overcome their personality deficits and

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1 meet the requirements of the military and stay in the

2 military. So there is a supportive approach there, but it

3 can't be at all costs.

4 Q okay. And leading up to that, if I can draw your

5 attention to I believe it's Captain simon's report of

6 psychiatric evaluation, if you can kind of delineate what the

7 findings were that Captain simon suggested, both medically as

8 well as from a conduct or behavioral perspective.

9 A I'm not certain what -- he rendered a diagnosis,

10 let's start with that. It's consistent with even contemporary
11 personality character disorder diagnosis. He referred to him

12 as an immature personality with emotional instability, that's

13 the sort of baseline, who also has an anxiety reaction. And
14 that's what brought him into the hospital.

15 Q Is there any indication as to what prompted the

16 anxiety reaction?
17 A There is no -- there 1s no clear correlated
18 information that would help us understand that. There are
19 only hypothesis.

20 Q okay. And did Dr. simon provide any indication as

21 to when the onset of these particular behaviors or medical

22 conditions were?

23 A well, in his summary, he believed that there was a

24 decline in his capacity to function roughly six months
25 previously. And according to his perspective, Mr. Hilton

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1 withdrew his interest in the military serv1ce and had this

2 increasing anxiety and reported hearing voices, but we have no

3 characterization of those.

4 Furthermore, Mr. Hilton had begun to confess, I

5 guess that's a reasonable term for it, to his commander that
6 he enlisted in the military under false pretenses; that he had
7 shot his stepfather when he was 14; and had this two years or
8 so of psychiatric care. And that was unusual, I would say,
9 all things considered.
10 Q okay. And you've been able to -- all of those
11 things are what led to Mr. Hilton's discharge from the

12 military. were there any red flags that you were able to
13 observe from other collateral sources that would have been
14 important for the military to have determined exactly what was

15 go1ng on with Mr. Hilton?

16 A well, yes. I had a number of declarations to look
17 at and they were informative of a number of things that, of
18 course, he had a long, tortured childhood and developmental
19 history of abuse and neglect, and with various consequences
20 that were evident long before he joined the military.
21 Incidentally, that he was socially inept, that he
22 was very willful, under certain circumstances anyway, that he
23 had drifted into substantial marijuana use, that he had --
24 difficult for him to form relationships of any lasting nature,
25 and that he was made anx1ous, I suppose, by growing

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1 circumstances until he -- until things became very difficult

2 when he shot his stepfather, and the things that followed in

3 his high school years with difficulty in staying focused and

4 accomplishing the developmental task of adolescence.
5 Q Do you know whether or not that information was

6 available to the military when they were evaluating

7 Mr. Hilton?
8 A I have no idea.
9 Q Had that information been available, would it have
10 potentially had an impact on the psychiatrist's or the
11 evaluator's op1n1on or clinical impression at the time?
12 A well, you would hope so, but, honestly, the
13 recruiting business 1s a very fluid matter. It depends on how
14 much pressure the military is under to fill the ranks at the
15 time that he entered. It wouldn't have been as extreme as it
16 got shortly thereafter when the vietnam war was in its
17 build-up phase.
18 But recruiters or the people who guide this
19 recruiting process can look the other way about a number of
20 things. If you mean would there have been something here that
21 would have absolutely disqualified him, I don't have an answer
22 for that, if they had known it.
23 Not the psychiatric attention or the psychotherapy
24 attention or whatever it was that he had, that wouldn't have
25 done it. The incident with his stepfather, I would hope they

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1 would have checked out legal records and see, you know, what
2 the consequences of that were. But, incidentally, there was

3 not a conviction of that sort.

4 But, truthfully, I mean, I know during the vietnam

5 period, the requirements for both intelligence, health and
6 background were lowered increasingly for the sake of, like I
7 said, filling the ranks. so it's hard to say what might have
8 been known and disregarded.
9 Q so if I'm understanding correctly, because we're at
10 a time of war, the standards for entry and the necessity of
11 filling the ranks would have been a lower bar than at peace

12 time?
13 A I think the -- I think -- I mean, I guess the answer
14 1s -- well, I'm not even sure I heard you right. I think the

15 answer though is yes. That they -- the military would rely

16 more on his entry requirements, the testing. And they also

17 would require him -- what the medical evaluation saw at the
18 time, what kind of history the individual provided and then
19 what the exam1n1ng physicians would have seen.
20 And then, furthermore, in the Army, it depends on
21 how you do in the next six months. There are many people who
22 wash out of the Army because of personality deficiencies and
23 the Army 1s used to that. I don't know what their washout
24 rate is, but they're rather comfortable that they have one set
25 of requirements coming in and then they're going to push you

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1 until you either make it or don't. And Mr. Hilton made it,
2 with distinction actually.

3 Q okay. And I jumped over this, but Dr. simon had

4 originally treated Mr. Hilton with Thorazine, but he

5 discontinued that medication in favor of another one; did he

6 not?
7 A well, I think you're conflating the two

8 psychiatrists. There's a Dr. Bowman, who was the division

9 psychiatrist who would be many miles from Dr. simon and

10 probably never met him or didn't know him, or they're not
11 communicating necessarily. There are some records that may go

12 back and forth.

13 But in any event, Dr. Bowman 1s the one that chose
14 to prescribe Thorazine for him for those two or so months

15 before he had this episode. Dr. simon chose, and I think

16 reasonably so when he was in the hospital, let's take him off

17 of all medications and see how he functions.
18 And then later downstream, and I don't know whether
19 it's at the actual point that he was discharged or whether it

20 was earlier -- a little bit earlier in the hospitalization, he

21 switched him to what's called a minor tranquilizer, Librium,

22 as opposed to a major tranquilizer, which would be the

23 Thorazine.

24 Q And Dr. simon's was essentially serv1ng as he's

25 not a clinician of sorts in the sense of come sit on my couch

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1 and let's talk about your 1ssues and your problems. Dr. simon
2 was an evaluator and a judge and a conduit to administrative

3 action; correct?
4 A He's overseeing -- Dr. simon, best assumption, 1s

5 overseeing a hospital ward with a number of patients. And

6 each one that is admitted he has to scrutinize them carefully,

7 do an assessment, decide on the treatment, but he's not

8 necessarily spending time with them 1n a one-to-one basis on a

9 daily basis or anything like that. so he's responsible for

10 the treatment, but they have nurses, they have psych techs and
11 so forth that are also providing the treatment in a ward

12 setting like this.

13 Q Prior to these episodes of counseling, and then
14 hospitalizations and treatments, if you will, had Mr. Hilton

15 evidenced what did he evidence in terms of performance?

16 A Is this before his first episode?
17 Q Yes, sir.
18 A well, all I really have is kind of what we've
19 already gone over here, that shortly after he enters this Davy
20 Crockett assignment, he has these poor performance marks on
21 his MOS. And that's the first sign of any deterioration at
22 all.
23 And somewhere in here we have that he didn't get the
24 Special Forces training. And one can speculate at this point
25 about that. His mother -- he also didn't receive a promotion

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1 to-- to, excuse me, corporal, but he did rece1ve a promotion

2 to SPC 4, which is equivalent but not equal. And according to

3 his mother, he was very disappointed and lost his interest in

4 military serv1ce from that event.

5 In any event, we don't have any measures, any
6 metrics of what's going wrong here, until we hear about the
7 first counseling event here in December. After that, then we
8 have Dr. Bowman apparently starts the Thorazine with him in
9 his division.
10 Q so just after he's roughly-- he's 17 and a couple
11 of months, he enlists in the military. And we've got a period

12 of about two, two-and-a-half years that passes without

13 counseling or without hospitalization, but it's not without,
14 I'll say, markers of not being promoted, not having good

15 scores on tests. He had I guess decent or reasonable

16 performance in the military, and then all of a sudden we have
17 these hospitalizations and counselings that coincide?
18 A well, I think his performance was above average.
19 Again, grabbing at the markers as the only metrics I have here
20 were above average, that he was trying and performing and
21 achieving and being recognized for that, by the information
22 that we have.
23 Q what psychiatric conclusions or op1n1ons are you
24 able to arr1ve at based on your rev1ew of all of the records?

25 A what 1s my impression of what? can you focus me a

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1 little bit?
2 Q I guess, based on your rev1ew of the records in

3 terms of the manifestation of these psychiatric events, what

4 op1n1ons or conclusions are you able to arrive at of

5 Mr. Hilton's circumstances or diagnosis, or are you even able

6 to arr1ve at one in particular?

7 A well, I think the thing I feel most comfortable

8 say1ng 1s that I concur with Captain simon and his diagnosis.

9 There's a number of questions that remain unanswered. One in

10 particular is how much drug use influenced this pattern that
11 developed, and in particular the incident of the

12 hospitalization.
13 But from my sense of what the military wants from
14 someone, I believe that at the point Mr. Hilton came to their

15 attention, he had -- he had lost his interest in performing in

16 the military and was eager to find his way out the exit. And
17 this 1s the exit that seemed most convenient for him.

18 Q okay. And while you've reviewed some collateral

19 sources in terms of his childhood development and his early

20 childhood development, do you have enough information from a

21 background perspective to allow you to render any op1n1on or

22 conclusion with respect to any diagnosis?

23 A well, I think the fairest thing to say, aga1n, 1s

24 that it's consistent. That this very difficult background

25 that he had is consistent with establishing, or problems with

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1 establishing, a mature personality, but consistent with

2 establishing a very flawed personality, which was labeled

3 immature personality, but could be considered in today's terms

4 with different language, but nonetheless an individual with

5 substantial personality features which would interfere with

6 successful functioning both socially and career-wise,

7 vocational.

8 Q And would you term this -- and I think I know the

9 answer to this -- would you term this a break with reality

10 that Mr. Hilton had or are we dealing with something like
11 that?

12 A "This" is what happened to him 1n the Army?

13 Q Yes, sir.
14 A Talking about the Army? well, I will take at face

15 value the reference to hallucinations. whether he was

16 misperceiving things more broadly, that he had perceptual
17 distortion more broadly, I don't know. But the acute
18 agitation and the complaint of hallucinations is certainly an
19 episode of being far enough away from reality, solid reality
20 testing, to qualify.
21 I'd go on to say though that drugs can also be
22 responsible for this in an otherwise sound individual. And
23 his quick recovery once he was in a confined and contained
24 environment, and the lack of persistence as is suggested, it
25 was likely a combination of personality deficiencies and

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1 substance abuse.
2 Q well, it's suggested that-- and as you're aware,

3 Mr. Hilton was/is charged with first degree murder. And it

4 was suggested that he had a break with reality based on

5 psychological issues and that drugs were the breaking point.
6 But I would be correct in saying that the instance most recent
7 in time, there was evidence some 45 years prior that
8 Mr. Hilton was having significant psychiatric, psychological
9 problems back then; correct?

10 A I would agree.
11 Q okay. And we don't know exactly the root or the

12 cause of those because that wasn't the military's -- that

13 wasn't the objective for the military to root out the cause
14 A Right.

15 Q -- the military was tasked with simply screen1ng to

16 figure out whether he was suitable for continued employment?

17 A well, let me respond to one element of that. At the
18 time that he was discharged, or actually in conjunction with
19 Dr. simon's assessment, he is -- Dr. simon is responsible for
20 saying whether or not there 1s a maJor mental illness existing
21 in this individual. And if there were such, he would go
22 through a different channel for discharge from the service.
23 He would be medically evaluated more thoroughly. He
24 would -- he would meet a medical board. He might end up with
25 a medical discharge from the Army, which he didn't have. He

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1 might end up with a pens1on from the Army, which might follow,
2 and so on and so forth. So there is a point of decision that

3 Dr. simon had to make as to whether, again, there was

4 existence -- there was a reason to insinuate or assume that he
5 has maJor mental illness.
6 Q Are there pressures inherent in the military to
7 avoid one direction in favor of the other?
8 A Negative, no.
9 Q okay.
10 A None whatsoever.
11 Q Had Dr. simon been aware of things such as
12 Mr. Hilton's biological father having substance abuse 1ssues
13 as well as violent behaviors, that his father had been
14 murdered by his stepmother, had he been aware of brain

15 injuries, had he been aware of drug use, had he been aware of

16 other instances of manifestation of psychiatric issues, would
17 that have potentially influenced Dr. Simon's findings or the
18 outcome?
19 A I would say no.
20 Q okay.
21 A what he's doing is trying to do a single time frame
22 assessment of the mental capacities of the individual in front
23 of him. He's going to take into consideration, of course,
24 let's call it the proximal history to the reason that he ends
25 up under psychiatric attention at the time. And, of course,

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1 if there had been -- if there had been hospitalizations

2 earlier on, he might have taken that into consideration.

3 But the things that you're referring to are more

4 speculative. And whether he knew them or not I don't know,

5 but they probably would not have weighed against what he saw
6 1n front of him.

7 Q okay. Fair enough.

8 MR. MORRIS: Dr. camp, I'm go1ng to tender the

9 witness to Ms. Cappleman, who 1s the Assistant State

10 Attorney. she'll be with you 1n just a moment.
11 THE WITNESS: Thank you.

12 CROSS EXAMINATION
13 BY MS. CAPPLEMAN:
14 Q Hello, Dr. camp.

15 A Hello.
16 Q so you personally have never met nor examined the
17 defendant 1n this case?
18 A Correct.
19 Q Nor have you completed or done any kind of testing

20 on him?
21 A Correct.

22 Q okay. And the records that you based your testimony

23 on today, I think you've testified several times, are not
24 complete?

25 A Correct.

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1 Q And those records are all from the 1960s?

2 A Correct.

3 Q were you provided with any more recent records

4 regarding the defendant's psychiatric issues that are more

5 current?
6 A No.

7 Q All right. And you testified, this is a small

8 point, but somewhere 1n there Captain Poor was talking about

9 the counseling sessions that he had with the defendant and I

10 think you mentioned there were four. My reading indicated
11 there were five counseling sessions?

12 A Five is what's on here, yeah.

13 Q And then the captain indicated that those counseling
14 sess1ons were to no avail?

15 A Correct.

16 Q All right. And he, you testified, was somehow

17 throughout the course of these examinations and psychiatric
18 treatment determined to have come into the military under

19 false pretenses?

20 A I didn't hear the whole question. You're breaking

21 up a little bit.

22 Q He was found to have come into the military under

23 false pretenses?

24 A who found him to do that?

25 Q That's mentioned 1n the records and I think you

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1 testified as such. It may have been a self-reporting

2 situation where he would not have been eligible to come into

3 the military but he came in under false pretenses.

4 A I see, okay. That's what he-- that's what I'm told

5 that he complained, or not complained, reported to his
6 commanding officer after he began to get crossed up with the
7 command.
8 Q And, aga1n, we don't know what the undesirable
9 character traits were that caused him to be relieved of his
10 assignment to the special weapons platoon?
11 A Correct.

12 Q But whatever they were, they made him undependable

13 for that assignment?
14 A Correct.

15 Q All right. And he was found to be not capable of

16 performing any regularly-assigned duties?
17 A That's what they said, yes.
18 Q All right. And not able to have satisfactory
19 conduct or proficiency to complete those duties; is that

20 correct?
21 A Correct.

22 Q All right. Do we know why he was committed to

23 hospitalization by the military?

24 A The sole -- the limited information I have 1s

25 extreme anxiety and agitation.

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1 Q And
2 A I'm sorry, forgive me, with a complaint of

3 hallucinations.

4 Q okay. And you mentioned that verbiage about he's

5 immature and suffers from anxiety. Is that -- does that

6 constitute a diagnosis, a psychiatric diagnosis?

7 A well, it would constitute the diagnosis at the time.

8 He basically is talking about baseline and then he's talking

9 about the episode that warrants hospitalization. so the
10 baseline he's saying is immature personality with emotional
11 instability. The episode is ill defined or poorly defined,

12 but it goes beyond baseline. In fact, personality disordered

13 individuals generally are not anx1ous. That's part of the
14 definition of them.

15 Q okay.
16 A so if he ends up anx1ous and agitated, something
17 additional on top of baseline is going on.
18 Q All right. so we've got anxiety and we've got
19 hallucinations, or at least a report of hallucinations?

20 A I'm sorry, you broke up aga1n.

21 Q Anxiety and at least a report of hallucinations?

22 A Correct, complaint by the patient of hallucinations.

23 Q And he was recommended for elimination from the

24 military due to emotional instability?

25 A Correct. well, the immature-- the immature

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1 personality 1s the fundamental diagnosis, with emotional

2 instability as an embellishment. That's part of the, again,

3 the baseline. And then anxiety reaction 1s -- was part of

4 the -- was added on to explain or describe the reason for

5 hospitalization.
6 Q okay. But for all those reasons, he was deemed to

7 be unfit for service 1n the united States Army?

8 A unsuitable 1s the proper term.

9 Q unsuitable. And he was prescribed an antipsychotic

10 while in the care of the united States Army?
11 A It's technically an antipsychotic. You know, don't

12 hinge too much off of what I'm labeling them. They also are
13 called major tranquilizers. And shorthand, and of course the
14 greatest utility is for individuals that are suffering with a

15 psychosis.
16 Q okay. And was there any mention anywhere in the
17 records that you reviewed of him being prescribed any Ritalin?
18 A Negative.
19 Q All right. And were you suggesting that the

20 defendant may have been exaggerating his symptoms in order to

21 achieve a goal of being discharged?

22 A Yeah, I'm sorry if that was the insinuation. I do

23 not let me use the starkest term, malingering. I do not

24 believe he was malingering. I believe that this was he

25 welcomed this opportunity to take this path out of the Army.

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1 Q okay. And you talked about drug abuse and not

2 knowing what role drug use or abuse may have contributed to

3 the symptoms and mental status documented 1n the reports that

4 you saw. Do you know what drugs, if any, were being used or

5 abused recreationally by this defendant at that time?

6 A All I know-- well, there are scattered references

7 among some of these declarations of him using marlJUana in

8 Europe at the time.

9 Q okay.
10 A That's the only drug that I'm -- that I've heard
11 about mentioned specifically.

12 Q All right. Is it your op1n1on that the use or abuse

13 of drugs could trigger or exacerbate the mental health issues
14 that are articulated in those reports?

15 A It's my opinion that can happen, correct.

16 Q okay.
17 MS. CAPPLEMAN: One moment, please, Your Honor.
18 (Attorneys confer.)
19 MS. (APPLEMAN: Nothing further, Judge.

20 THE COURT: Redirect.

21 MR. MORRIS: I don't have any further questions,

22 Your Honor. Thank you, Dr. camp.

23 THE COURT: All right. Thank you.

24 THE WITNESS: Thank you.

25 (Conference call concluded.)

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1 THE COURT: Let's take a few minutes.

2 MR. MORRIS: Judge, if I could make mention, our

3 next witness is by video also. He's scheduled for 3:00

4 and I'll make sure that we're runn1ng correctly. we

5 could call Ms. Fuentes, but I believe that that's go1ng

6 to be more protracted.

7 THE COURT: well, let's get what we can of

8 Ms. Fuentes.

9 MR. MORRIS: Yes, s1 r.

10 THE COURT: Let's not just waste a half an hour.

11 MR. MORRIS: No problem.

12 THE COURT: why don't we -- let's take ten minutes.

13 And 15 there a way for you to test the video --

14 MS. MORRIS: Yes, Slr.

15 THE COURT: -- and see if it's working?

16 MR. MORRIS: I'll see what I can do, Judge.

17 THE COURT: If not, we'll get Mr. Fansler up here to

18 assist you.
19 MR. MORRIS: Yes, Slr.

20 THE COURT: So, anyway, let's take ten minutes and

21 then let's have Ms. Fuentes and get as much as we can --

22 MR. MORRIS: Yes, sir.

23 THE COURT: -- before we do the video.

24 (Recess taken from 2:25 p.m. to 2:42 p.m.)

25 THE COURT: Be seated, please, folks.

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1 All right. It's my understanding we're go1ng to

2 call Ms. Fuentes next. And we can break whenever you
3 want, Mr. Morris, break her testimony up. we don't have

4 to do it all at once.
5 MS. MORRIS: Yes, s1r, Judge. And we troubleshot
6 enough that I don't have too many speed bumps on the
7 phone.
8 The defense would call Ms. Fuentes.
9 THE COURT: If you'd face the clerk and be sworn,
10 please.
11 whereupon,
12 BEATRIZ FUENTES
13 was called as a witness, having been first duly sworn, was
14 examined and testified as follows:
15 THE COURT: Have a seat. slide up to the
16 microphone, please.
17 DIRECT EXAMINATION
18 BY MR. MORRIS:
19 Q can you state your name for the record, please,
20 ma'am?
21 A Beatriz, B-E-A-T-R-I-Z, Fuentes, F-U-E-N-T-E-S.
22 Q And, Ms. Fuentes, how are you employed?
23 A I am a mitigation specialist.
24 Q okay. And tell me-- I know we're not 1n front of a
25 jury, but tell me what a mitigation specialist is briefly.

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1 A The easiest way to explain it is the historian of

2 the life of someone who commits any type of felony, usually;

3 but it doesn't have to be a felony.

4 Q All right. Are you 1n private practice presently or

5 tell me how you structure that? How exactly do you get

6 business and do business?

7 A I have my own company and I usually get business by

8 word of mouth. so I get calls from attorneys saying, we need

9 a mitigation specialist.

10 THE COURT: If you would back off from that mike a

11 little bit and I'll turn it up. But you're breathing on

12 it and it's going to drive us all crazy.

13 (Laughter.)
14 THE WITNESS: Is that better?

15 THE COURT: Let me get the volume adjusted up a

16 little bit. okay. Now go ahead and talk. Don't get
17 right on it.

18 THE WITNESS: Okay. I will -- I won't.

19 BY MR. MORRIS:

20 Q Ms. Fuentes, what kind of educational background do

21 you have that affords you the ability of I guess denoting or

22 calling yourself a mitigation specialist?

23 A The mitigation specialist has two ways of becoming a

24 mitigation specialist. One would be through a social work

25 degree and a master's degree; and the other would be coming 1n

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1 through an investigator, criminal investigator. And that's

2 the way I came in through.

3 Q And if you could explain that a little bit for us.

4 when and how did that happen?

5 A I became a -- I started at the Public Defender's

6 office locally in Leon county in 1995 as a volunteer, moved

7 into investigations in 1997. I continued working on many

8 types of cases until --well, my first murder case would have

9 been probably '99. Then I did felonies for a long time. And
10 then in 2000, probably 2001, somewhere around that, the dates
11 might be off, I worked on a murder case, the first murder case

12 I worked with Ines Suber out of Quincy.

13 Then I left and went to work for the Public
14 Defender's office, but out in Monticello, Florida. when I was

15 in Monticello, she got a case, the Meyer case. Actually, I'm

16 sorry, take one back. She had Coy Evans. And she had hired
17 outside for a mitigation specialist. I think they did they

18 tried to have a relationship with the mother of Coy Evans and

19 the mother would not partake in this relationship.
20 THE COURT: A lot more information than we need,
21 Ms. Fuentes. we're just trying to get your basic
22 background.

23 THE WITNESS: Okay. So Coy Evans. And then I had

24 another one, Meyer. And once I had Meyer, they decided
25 that after that, they would make me a mitigation

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1 specialist 1n the office.

2 BY MR. MORRIS:

3 Q In other words, don't go outside of the house, let's

4 do things in-house?

5 A Right.

6 Q More cost effective and thought that it would get

7 things done in a more efficient way and that you had the skill

8 set to be able to get that done?

9 A Right.
10 Q Any particular training that you received above and
11 beyond just the simple boots on the ground, hands getting

12 dirty? Any additional training?

13 A Yes. I did a lot of the Florida training for death
14 penalty work. I also did national training for death penalty

15 work. And after that, I have had many different trainings

16 after that.
17 Q And so by way of example, when I go to attend

18 something like Death is Different, they've got a simultaneous

19 pattern for investigators or mitigation specialists to attend

20 classes. I go to the legal stuff and you would go to the

21 investigator and mitigation specialist stuff?

22 A Yes.

23 Q okay. To stay current with the times and also to

24 gather insight on the things that you need to be doing?

25 A Yes.

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1 Q Prior to Mr. Hilton's case, had you functioned in

2 the role of being a mitigation specialist in a case, whether

3 or not it went to trial or not?

4 A Yes.

5 Q How many different cases do you think that you had

6 functioned in that capacity?

7 A with the title mitigation specialist, there was

8 Green; and there was Coy Evans without the title; and Meyer

9 with the title.

10 Q okay.
11 A And a whole bunch of others that never went to

12 trial .
13 Q understood. At the time that Mr. Hilton was
14 arrested and the case came to exist, tell us how the office of

15 the Public Defender or the capital unit was structured? Let's

16 talk about structural issues first.
17 A Ines was the head, Steve Been was second, I was the

18 mitigation specialist, and chris Ellrich was the fact

19 investigator.

20 Q okay.
21 A That's how it started.

22 Q And when you say that Steve Been was the second, I
23 think that I have different views or definitions of what a
24 second chair means versus what we've heard from the testimony
25 perspective. what exactly -- what was the difference between

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1 first chair or the mean1ng of second chair, based on your

2 perception?

3 A At the time, most of the decision making was done by

4 Ines. Because Steve Been came in through the appellate

5 division, he had a lot of exper1ence with appellate work. And
6 so he was pretty much assisting with the appellate work and
7 some of the discovery on the case.

8 Q okay. And so Mr. Hilton's case comes into existence

9 and tell me what your first role is in Mr. Hilton's case.

10 A The first thing that I did was I accompanied Ines
11 Suber to Georgia to interview Mr. Hilton very close to the

12 time that he was arrested in Georgia. And it was in Dawson

13 county, Georgia.
14 Q was there any particular delegation of

15 responsibilities, obligations, duties that you were

16 immediately tasked with or how did things unfold in terms of
17 what your focus was?
18 A The first thing that we did is that we met with the
19 Public Defender's office in Dawson county. He took us and we
20 interviewed him. we got the facts about what had happened 1n
21 Florida and also what had happened in Georgia.
22 After that, we had a meeting with attorneys from
23 North carolina, from Georgia, and from Florida in a room all
24 together. And it was decided that I would be the mitigation
25 specialist for North carolina, for Georgia, and for Florida,

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1 but Georgia was go1ng to have him take a plea so it would have
2 been just North carolina and Florida.

3 Q okay. And so when you say that "it was decided," I

4 suppose it seemed sensible to have you running down the leads

5 for each of the different cases, rather than having people do
6 duplicative work?
7 A Right. They did not want things to be duplicated.
8 Q Then so what did you endeavor to do from that point?
9 A Then we waited for him to be brought -- well,
10 actually, he pled out of Georgia pretty quickly. And then he
11 was taken to the reception center in Jackson in Georgia. And

12 we went to see him, I believe it was twice. I went to see him

13 at least twice or three times 1n Georgia.
14 It would be questioning about his childhood and as

15 much information as we had, without having any of the

16 paperwork in yet. so basically the history, trying to get as
17 much history, personal history, as I could.
18 Q okay. And I'm not going to make you painstakingly
19 go through every meeting that you had with Mr. Hilton and
20 things like that, we'll come back to some more specific
21 questions on that.
22 But during -- that would have been from early 2008
23 until the time of the trial, which would have been early in
24 2011. so for a three-year period of time, you're focused on
25 developing mitigation for Mr. Hilton's case and trial?

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1 A Yes.
2 Q So you're getting some baseline information from

3 Mr. Hilton to figure out where you need to be going and what

4 you need to be checking into; correct?

5 A Yes. It's like -- it's like a spiderweb kind of.

6 You know, you get one person and then they lead you to other
7 people and then -- until you run out of people is basically

8 what it 1s.

9 Q well, and by way of example, based on the pr1or

10 witness, Mr. Hilton theoretically would have disclosed to you
11 that he had been in the military. That's going to trigger you

12 to have him execute forms in order to get the military to

13 release particular records. And you're going to endeavor to
14 go get those records and find out what's in them.

15 A Precisely.

16 Q During that three-year span leading up to the trial,

17 g1ve us an idea of how many different witnesses you were able
18 to make contact with that were helpful or useful for the
19 purposes of mitigation. It doesn't have to be a perfect
20 number, but give us an idea of what was prepared for the
21 purposes of a mitigation presentation?
22 A Apart from all of the people that I spoke to, which
23 were over 300 people, we narrow it down to about 30-plus
24 people that were -- would have good information about all the
25 parts of his life, from the child all the way up to the time

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1 of the murder.
2 Q And I've been able to show you what's entered into

3 evidence as exhibit, it would be Exhibit I-A, which are the

4 memorandums that you prepared. Did you prepare memorandums as

5 it related to each of the witnesses?

6 A One memorandum per person.

7 Q And so that was done in each instance for people

8 that you interviewed in order to --

9 A For the 300-and-something people, yes.

10 Q understood. And what was, I guess, conceptually,
11 thematically, what was it that was going to be the

12 presentation of Mr. Hilton's life or how was that to be

13 presented? Give us an idea.
14 A Apart from the witnesses, the lay witnesses that

15 were com1ng up, I had also prepared a PowerPoint presentation

16 that had about 185 slides. And that would be from the moment
17 he was born, all throughout all the witnesses, photos of

18 everything that he had done for his whole entire life. They
19 were go ahead.

20 Q You're fine. I was just mov1ng the microphone a

21 little bit.

22 A Also, we had witnesses all over, 1n very different

23 parts of the united States. so that was -- that was a

24 difficult thing. we had to -- for instance, there was a

25 military friend that was leaving out of the country to be

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1 called for something else. And so there were witnesses that

2 had to be spoken to. And I tape recorded some of those

3 conversations with these people before they left the country.

4 when -- there was another key witness down in Tampa

5 that was actually a next door neighbor of Mr. Hilton when he

6 was about seven years old when the Murphy Bed fell on his
7 head. This lady was very old at the time and I didn't know if

8 she might not last past the time of the trial or if she would

9 not be alive for the trial so I tape recorded her in a

10 statement of what she saw. she was a witness to him com1ng
11 out with half his head coming out and bleeding and his mother

12 putting towels on his head and running to the hospital, the

13 children's hospital.
14 I went looking for those children hospital records;

15 they had been destroyed. And so she was the only witness that
16 would basically say, yes, this thing happened.
17 Q And I'll come back to the PowerPoint presentation

18 that you prepared in just a moment, but let's talk about--

19 did you have a batting order, so to speak, of you're providing

20 to the lawyer, here is the information that I have developed

21 and this is what I think that we should use. Here are the

22 pros and the cons of it. Here are the witnesses that I don't

23 think that we should use.

24 Tell me what the discussion is and with whom 1n

25 terms of what you had prepared and ready to go.

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1 A okay. I made a huge list of every single witness.

2 And out of those witnesses, I would say, this 1s a good

3 witness; this information 1s --would be good to bring in.

4 This witness is bad, they don't have enough information, you

5 know, it would be a waste. And so this -- this went on for

6 all of the 300 people on the list.

7 And so this information was g1ven to Ines and that

8 information was also given to Rob and whoever it was that was

9 the second chair at the time. we had an array of second

10 chairs. so it was one day somebody, then the next, then the
11 next. so we were always playing catch-up to try to get the

12 other attorney, whoever came 1n, up to speed to all of the

13 things that were happening.
14 Q okay. And I'll come back to structurally. what I

15 want to focus on right now is immediately before the case goes

16 to trial, and you're of the belief that your mitigation is
17 going to be used, are you able to -- is there anything that
18 you're able to reference that tells us what you were prepared
19 to present, what the office was prepared to present?
20 A when it was set prior to everything being cut, there
21 were probably like three people 1n his early childhood; then
22 middle, there were another three or four. Then, you know,
23 once he gets a little older, there were five, s1x people.
24 There were a lot of the people that saw him right
25 before the murder in Georgia. There were a lot of people who

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1 saw him pr1or to the murder in the Georgia one, not just the
2 Tallahassee one, but so there were people who saw him

3 acting in very odd ways before this case or right after he was

4 given medicine by Dr. Delcher, what he acted like pr1or to

5 Dr. Delcher, after Dr. Delcher, once he was arrested and then
6 after that, the things that appeared after that.
7 Q okay. so you had, I'll describe them as witnesses
8 for different compartments as Mr. Hilton's life progressed?
9 A Yes.

10 Q Those witnesses were under subpoena and able to be

11 able to testify and be present in court?

12 A Yes.
13 Q Is there anything that you're able to reference that
14 you're able to give us any specificity of names or who those

15 people are at the particular times?

16 A I have all of their names.
17 Q Okay. Please.
18 A okay. childhood, that would be Thomas Perchoux,

19 which I have some of the information on what they were going

20 to say. Others, I don't remember.
21 But in my thing Dr. Perchoux, he was the person that
22 took care him and his wife took care of Hilton right after
23 there was an issue with his stepfather. He was removed
24 custody. The mother preferred going with the stepfather than
25 with Hilton and so Hilton then was sent to foster care. These

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1 are not completely the foster care parents, but some of the
2 people that took care of him because they were friends of his

3 mother.
4 And then there is Victorine, V-I-C-T-0-R-I-N-E,
5 Rowe, R-0-W-E. And she's one that was there with the hitting
6 on the head.
7 Q You're talking about the Murphy Bed instance

8 A Yes, the Murphy Bed.

9 Q -- that happened in Hillsborough county?

10 A Yes.
11 Q okay. carry on.

12 A And childhood information, that also was his mom as

13 a historian, cleo Debag, D-E-B-A-G. Then after that would be
14 the teenage years. It would be Roy cave, which was 1n a band

15 with him and knows him, about him going to actual foster care.
16 Then was Sandy Herman, which was his first girlfriend. Then
17 it was Beverly Lehmann-Hilton. That is his stepsister on his
18 dad's side. And then there was Maria Castelli and Juan
19 Castelli. And I don't really remember what these guys were
20 I didn't write it down, sorry.
21 Then early adulthood was Leo -- Leroy Pruitt. And
22 he was 1n the military with Mr. Hilton.

23 Then adult prior to 2005 was Bob Priester, that's

24 P-R-I-E-5-T-E-R. And he had information about a molestation

25 that occurred with his uncle on his mother's side. Then there

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1 was Stephanie Duggan, Brenda champagne. And I'm sorry, I

2 don't -- I don't -- unless I look at their memos, I don't know

3 what they actually had to bring.

4 Then right after 2005 then would have come Harry

5 Delcher; John Tabor, which was his boss at the time; Jennie
6 Johnson, that knew him for about ten years and saw his
7 decline; Shawn Stewart, which was a girlfriend; Ned Dwight
8 coleman; Pam Burnett.
9 The following ones are people from Atlanta that saw
10 him acting bizarre. This would be Ned Dwight coleman and Pam
11 Burnett, Ray Lung, L-U-N-G, Norm collins. There was an

12 officer Kim. There was -- I think after I did this list, I

13 did speak to this lady that was a laundromat lady, but I don't
14 have her name. But we did speak to her. And then

15 Dr. Bateman, which was the vet that took care of his dog.
16 Then the adult during 2007, these are all witnesses
17 of Mr. Hilton that he used to visit candler Park in Georgia
18 and he was seen -- he was seen acting bizarre. Many times the
19 police were called on him and the police just tell the
20 witnesses that the man 1s crazy, don't worry about it, he's
21 harmless.
22 But it was Maria Linarte. Actually, Maria Linarte
23 was a nurse that lived next door to the Clairmont address
24 where he lived and she thought that he was mentally ill.
25 There was chad Smallwood, Justin wight, W-I-G-H-T, Karen

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1 Stansbury, Scott Gill, Mildred Stevens, shaun Faukner.

2 And then after the Dunlap incident and right before

3 Meredith, there was casey Smith, Robert Schmidt, Tom Roger,

4 Nancy Linkesh. And all of these people saw him in the woods

5 during the time of Meredith or right before, or after

6 Meredith.
7 Q So the people who saw him contemporaneous with

8 Ms. Emerson's homicide and/or Ms. Dunlap's homicide?

9 A Yes. And then we had jail staff that we never -- I

10 never put on the list.
11 Q But those individuals, those lay witnesses, they

12 were prepared to be able to come provide relevant information

13 1n those particular compartments
14 A Yes.

15 Q --of Mr. Hilton's life, whether it be his formative

16 years, his middle age years, military years, et cetera?
17 A Yes.
18 Q were you responsible for developing the expert

19 witnesses as it related to mitigation or was that someone

20 else's responsibility?
21 A It was originally Ines's responsibility for that and

22 then it was passed on to Rob.

23 Q okay. so you would have been out of the expert

24 decision making in terms of what experts are go1ng to be

25 called, but you would have been aware of what some of them had

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1 to say or what information they had?

2 A Ines usually hired pretty much the same people for

3 all her cases. So it was -- it was pretty much the same.

4 Like very seldom, unless we had some something very odd in a

5 case, she usually stuck to the same experts that she had used
6 from case to case.
7 Q okay. what discussions were you involved 1n 1n
8 terms of developing a team strategy, a defense team strategy?
9 A For the guilt or the?
10 Q Both.
11 A I had a very close relationship with Ines so I was

12 told a lot of the things on the side, what was go1ng on.
13 There was the issue of bringing in some information as far as
14 his drug prescriptions from Delcher into the guilt phase.

15 Q And let me ask you about that. How would that have
16 been accomplished or how would that have been helpful or how
17 did you foresee that being woven into the guilt phase?
18 A well, the way that I saw it is that if we were to go
19 straight not guilty, with all the evidence that we had, it was
20 going to kill any mitigation whatsoever. Because in the rules
21 of mitigating a death penalty case, you never contradict one
22 with another. You don't play one against another. And so we
23 ended up playing one against the other in this case.
24 Q In the most simplistic of facts, I didn't do it, I
25 didn't do it, and then it shifts to the next stage that, okay,

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1 he did it
2 A Right.

3 Q now you need to change your opinion?

4 A so then what happens is you lose credibility with

5 the JUrors. And so we wanted to say, yes, he did it, he did

6 it, he had these 1ssues. And then if you bring that in, then
7 the mitigation just flows right into place.

8 Q And when you say that we wanted to do that, who 1s

9 "we?"

10 A well, I approached Nancy by herself. I spoke to

11 Nancy by herself. And I said, Nancy, if we go not guilty,

12 we're going to kill the mitigation.

13 And Nancy said to me, go and try to conv1nce Ines to
14 use some diminished capacity. And so I went. And I talked to

15 Ines and Ines was -- said she would consider it, but she did
16 not. And.
17 Q when do you think that was 1n the timeline of
18 things?

19 A It was probably somewhere around August or

20 September.
21 Q of 2010?
22 A of 2010.
23 Q so s1x, seven months pr1or to trial?
24 A Yes.
25 Q No discussions pr1or to that of strategy reference

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1 guilt, strategy reference penalty, and how they're go1ng to

2 flow? That was the first discussion or conversation?

3 A The issue -- the original issue was that when we

4 first spoke to Mr. Hilton in Georgia, on our first meeting and

5 1n subsequent meetings when we went to Georgia to see him when

6 he was at the reception center 1n Georgia, he was adamant that

7 he wanted to take this to trial. That if the State of Florida

8 wanted to put him to death, it was going to cost them because

9 we were not supposed to take anything else except going to

10 trial .
11 so the focus was just go1ng to trial, go1ng to

12 trial. And so when it started, when all of this mitigation

13 started happening or all of the focus and all the information
14 that started coming in as far as the records, as far as

15 mitigation and everything, then we started building this

16 mitigation. And then we were still looking at taking it to

17 trial .
18 Q okay.

19 A And so it was -- it was -- it was really never

20 discussed, the two together, until very, very late.

21 Q okay. Hindsight being what it 1s, an earlier

22 decision may have been more prudent in terms of discussion?

23 A As a mitigation specialist, I've done this now since

24 2004. I have also worked for the Georgia Capital Defender,

25 which handles only death penalty cases. And I did that for

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1 three-and-a-half years. I have never seen anything like this.

2 Q Meaning that the decision making process came too

3 late 1n the game, too dysfunctional, too disjointed?

4 A I have never seen anything where the guilt and the

5 penalty do not work together.
6 MR. MORRIS: Judge, if we could pause with

7 Ms. Fuentes --

8 THE COURT: Sure.

9 MR. MORRIS: -- and get Dr. Delcher go1ng.

10 (Conference call initiated.)
11 MR. MORRIS: If I could ask you to -- whoever is

12 capable of administering an oath to the, Doctor, please

13 do so.
14 whereupon,

15 HARRY K. DELCHER
16 was called as a witness, having been first duly sworn, was
17 examined and testified as follows:
18 MR. MORRIS: Dr. Delcher -- ma'am, if I could make

19 sure that you move that microphone or the phone a little

20 bit closer to Dr. Delcher so we pick him up loud and
21 clear.

22 THE WITNESS: Does that work?

23 MR. MORRIS: Thank you, Dr. Delcher.

24 DIRECT EXAMINATION
25 BY MR. MORRIS:

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1 Q can I ask you to state your name for the record,

2 please?

3 A Harry K. Delcher, M.D.

4 Q All right. And if you could spell your last name?

5 A D-E-L-C-H-E-R.
6 Q All right. And Dr. Delcher, how are you currently
7 employed?
8 A Still working as a physician in private practice.
9 Q okay. Any particular focus or specialty?
10 A My specialty would be endocrinology and then working
11 with chronic fatigue, some of the autoimmune diseases.

12 Q Dr. Delcher, obviously, you've been named as a

13 material witness in a case involving the State of Florida and
14 a Gary Hilton. You're familiar with the case; are you not?

15 A Yes.
16 Q Have you had an opportunity to rev1ew any materials
17 or Mr. Hilton's file or anything prior to your testimony
18 today?

19 A Yes.
20 Q okay. And I'm sure that there may be some questions
21 about what you've had the opportunity to review, but how did
22 you first come 1n contact with Mr. Hilton?
23 A He found me through his reading. He was researching
24 and he came to see me, see if I could help him.
25 Q okay. And what was the complaint that Mr. Hilton

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1 provided to you when he initially found you? what was the

2 medical issue?

3 A He had about five complaints. One was tingling, one

4 was muscle pa1n, one was weakness, one was mind wasn't sharp.
5 He thought he had a variant of
6 THE COURT REPORTER: I can't hear him.
7 BY MR. MORRIS:
8 Q I'm going to have to ask you to speak up just a
9 little bit. That he had a variant of what?
10 A He thought he had a variant of multiple sclerosis.
11 Q Thank you. we've got a court reporter here pecking

12 away and she's got to make sure that she hears your answers.
13 Did you have any treating history or were you able
14 to obtain any prior history from another physician as it

15 related to Mr. Hilton?

16 A No.

17 Q okay. Tell me about your interactions with

18 Mr. Hilton in terms of how he presented to you and your

19 initial assessments.

20 A First of all, he's an unusual man, and I had a

21 debate whether I wanted to take him as a patient or not. I

22 made the decision to see what I could do and see if what I was

23 doing would help him.

24 Q when you say that you had a debate as to whether or

25 not you wanted to take him as a patient, I would imagine it's

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1 similar to somebody walks into my office and I may or may not

2 want them as a client. Is that what you're referencing?

3 A Yup, yes.

4 Q But you made a decision that you were go1ng to

5 accept him as a patient and see what you could do to help

6 treat him?
7 A That's correct.

8 Q All right. what analysis or what -- what did you do

9 to try and figure out how to treat him?
10 A well, the treatment we'd been us1ng 1s a B vitamin
11 shot for his tingling. And when I gave him that shot, he said

12 he was better. And so that's what we see with neuropathy. A

13 B vitamin shot makes tingling better and better.
14 And then for his muscle stiffness, I gave him a shot

15 of Magnesium. what we find is with muscle pain, fibromyalgia,

16 within two minutes, they're markedly better. And he said he
17 was better. so those two things made me feel like he was one
18 of our more typical patients. And I told him we would try a
19 gluten-free diet and that might really help him. And he

20 agreed to try a gluten-free diet.

21 Q From a chronological perspective, when was it that

22 you first came 1n contact with Mr. Hilton?

23 A I think I saw him 5/4/05.

24 Q so May of 2005 is your first encounter. And you

25 start with a vitamin regimen to try and assuage his issues?

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1 A Correct.
2 Q okay. How frequently were you see1ng Mr. Hilton?

3 A I saw him monthly for a few visits and then moved

4 him out to every three months once we got on a steady program.

5 Q And did there come a point in time that Mr. Hilton
6 expressed other issues and other medications or anything was
7 attempted or tried?
8 A Yeah, he would sw1ng 1n his energy and keep say1ng
9 that the Ritalin helped, but he wanted more. And I listened
10 to that and believed him and went up on his Ritalin.
11 Then he had another spell where he was just

12 obviously depressed and I put him on Effexor. And he seemed

13 to get better after those events, but about a year later, in
14 let's see, '06, that would have been -- let me see what my

15 note was.
16 Anyway, he came to me markedly -- 6/19/06 he had --
17 he just was a totally different man. He was rapid speaking.
18 He looked at me like he clearly was man1c. I questioned
19 whether what I was doing was really working. And he kept
20 com1ng or talking or saying, yes, it's working, he wanted
21 more. And I stuck with him that way, uncomfortable for that
22 last year.
23 Q Let me back up. when you say that he said that the
24 Ritalin was helping or working, was he already taking Ritalin
25 when he came to you or were --

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1 A I started him on five and then went up to ten and

2 then went up to 20.

3 Q So your initial treatment reg1men starting back in

4 May of '05 was to provide him with a 5 milligram dosage of

5 Ritalin and take it at particular intervals of the day?

6 A I'm not sure that I did it the first visit or the

7 second visit, I'd have to look at that. But it was either the
8 first or the second.

9 Q But relatively early on --

10 A Yes.
11 Q -- 1n your doctor-patient relationship?

12 A Yes, very early.

13 Q Had you had experience 1n prescribing Ritalin to
14 patients pr1or to that?

15 A Yes.
16 Q okay. Did you do any psychiatric or psychological
17 testing to determine whether -- the appropriateness of the
18 medication?
19 A No, I didn't. I looked at the existing symptoms of
20 fatigue.
21 Q And everybody in the room, Doctor, 1s aware of the
22 circumstances related to the medical board and nobody 1s go1ng
23 to hit you over the head with that and make you re-live all of
24 that. we'll touch on it a little bit. But did you refer him
25 to an outside psychiatrist for any testing to see what the

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1 appropriateness of the medication was?

2 A This man was very marginal economically. I did not

3 think he had no 1nsurance. I did not think he would ever

4 go do anything else. so I did not refer him to anybody or do

5 any other tests. I tried to do the best I could. I spent
6 about ten years in the Grady Diabetes unit, which are some
7 pretty poor patients. And we would try to do as much as we
8 could with the individual patient.

9 Q so you're listening to his articulation of symptoms

10 of fatigue and you're making a clinical decision as to what
11 might aid in alleviating those symptoms?

12 A That's correct.
13 Q And that was the basis of the inception of the
14 prescription for Ritalin; correct?

15 A That's correct.
16 Q okay. And then once that prescription 1s provided,
17 1s he coming back in to the office every month and saying --
18 A Every three months.
19 Q okay, every three months

20 A Every three months he would come back and he would

21 talk about how it helped him and that that was the right dose
22 and that kind of thing.
23 Q okay.

24 A He was pretty conv1nc1ng that what I had done helped

25 him.

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1 Q so he is articulating to you that the Ritalin is

2 helping his circumstances, but maybe an increased dosage would
3 help more and then that's how we continue to step up or
4 titrate up 1n the dosage of medication?
5 A That's correct, that's correct.
6 Q okay.
7 A In the first s1x or eight months.
8 Q All right. And then he presented at a later point
9 1n time as being depressed and for that you had prescribed the
10 Effexor; correct?
11 A Right.
12 Q what experience, if any, did you have as it related
13 to the combination of those particular drugs?
14 A I have a number of patients on an antidepressant and
15 Ritalin. They work pretty much the same way in the brain.
16 Q okay. Did Mr. Hilton self-report or did you have
17 any knowledge of any maJor mental health issues that
18 Mr. Hilton may have had?
19 A No, I didn't at that time.
20 Q You I suppose you do now?
21 A Yes.
22 Q okay. And I'm not entirely certain of what you're
23 aware of at this point, but had you been aware of those
24 things, would you have prescribed the same medications or
25 would you have even endeavored 1n this -- would you have done

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1 something differently?
2 A Probably if I had known other things, I wouldn't

3 have done what I did.

4 Q You would not have done what you did?

5 A Right.

6 Q we can maybe come back to what it is that you know

7 now versus what you knew then. Mr. Hilton's --

8 A I now know -- go ahead. I now know how sick a man

9 he really 1s. I mean, I trusted everything he said. I would

10 not trust everything he said now.

11 Q understood. Most doctors, and I believe you utilize

12 one, they've got an inventory. You have a patient fill out

13 what your history is, whether anybody in your family has had
14 heart problems, are you a smoker, do you drink caffeine.

15 would it be fair to say though that you're reliant upon a

16 patient's self-reporting to you in terms of the information
17 that you initially get?
18 A That's correct.
19 Q were there any indications 1n the information that

20 was reported to you by Mr. Hilton of any major mental illness

21 or anything that gave you a red flag to give you pause in how

22 you were treating him?

23 A No, there was not.

24 Q That changed over time; did it not?

25 A He changed over time and I became much more anx1ous

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1 with him as a patient.

2 Q okay. so from May until June -- June of the next
3 year of '06 is when you notice a marked change in his
4 demeanor?
5 A Correct.
6 Q Pressured speech and the things that you just
7 articulated?
8 A Right.
9 Q why not then take a step back and reevaluate the
10 circumstance? was it still the pressure of his financial
11 circumstances?
12 A well, he kept claiming what I was doing was helping
13 him. And I guess I got enjoyed his praise rather than heed
14 my caution. I should have slowed the Ritalin down at that
15 point.
16 Q By the time that you got to June of 2006, what
17 dosage of Ritalin was he being prescribed?
18 A I think 80 milligrams a day, which was a very high
19 dose.
20 Q Eighty, eight-zero?
21 A Yes.
22 Q Do you have any knowledge as to whether or not
23 that's above, below, equal to recommendations by the Food and
24 Drug Administration or --
25 A It's right at the top, if not a little bit above.

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1 Q I'm sorry, if you could repeat your answer?

2 A It's right at the top of what's recommended, if not

3 slightly above. sixty is the general dose, 80 is slightly

4 higher.
5 Q And he's taking Effexor at the same time?
6 A He stopped it after a visit or two. He went off the
7 Effexor.
8 Q Is the --

9 A That was only for about s1x months.

10 Q So he's on Effexor for about six months, he goes off
11 of Effexor, but he still continues to take the Ritalin?

12 A Correct.
13 Q was the reason for the every three month
14 appointments based on the Drug Enforcement Administration's

15 requirement --

16 A Yes.
17 Q -- as it relates to Ritalin?

18 A Yes.
19 Q Because it's a controlled substance, you're required

20 to see the patient on a three-month basis for refills and

21 things of that nature?

22 A Correct.
23 Q Do you have any indication or knowledge as to
24 whether or not Mr. Hilton was doctor shopping somewhere else

25 and getting additional drugs anywhere else?

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1 A I have no clue. I didn't think so.

2 Q Is there anything that you do to check 1n on a

3 patient's usage or consumption of the drug during the period

4 for which it's prescribed?

5 A I don't know how to check on that. I did not try
6 checking the pharmacy.
7 Q In other words, you write a prescription for a

8 30-day supply, you're able to give the patient a refill after

9 that 30 days is passed, and then there's another refill 30

10 days later, then the patient has to come back in?
11 A That's correct.

12 Q There's nothing though that would prohibit a patient

13 from taking 120 or 160 milligrams a day, other than the fact
14 that they would run out of their medication prior to the

15 expiration of the 30-day period?

16 A That 1s correct.
17 Q when Mr. Hilton would visit your office from 2006

18 forward, you treated him for one additional year after that;
19 accurate?
20 A Correct, yes.
21 Q Do you remember when 1n 2007 your relationship

22 terminated with him?

23 A It was about the end of July. The last visit was

24 7/19/07. And he had lost his job and was now living in the
25 woods.

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1 Q How did he present from a physical perspective?

2 Dating back from 2005, did you see deterioration in his

3 physical condition and appearance over that two-year period of

4 time?

5 A He lost 25 pounds, but it did not look bad on him.

6 He was a lean man, but he looked and felt vigorous, was

7 talking about running and doing things. He looked to me like

8 he was a pretty active man.

9 Q And he had lost 25 pounds during that period of

10 time?
11 A Correct.

12 Q were there circumstances when he came to visit your

13 office that he brought other people or pets or anything like
14 that?

15 A He brought his dog about three fourths of the time.

16 Q Do you allow dogs in your office?
17 A we have a few pets around, yes.
18 Q okay. Fair enough. I've never been to a doctor's

19 office that allows me to bring a dog. I didn't know if that

20 was normal for you.

21 A we have a few patients who bring their animals.

22 Q so you allow for that to occur if the patient so

23 chooses?
24 A Correct.

25 Q Did you make any observations with respect to

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1 Mr. Hilton's relationship or attachment to his dog or his pet?

2 A It was an interesting relationship. He wanted

3 absolute obedience, the dog gave it, or he would yell at the

4 dog for something he thought was wrong, which was a shock to

5 me the first time I heard him do it.

6 Q so the first time you heard him do it, shock to the

7 system, wow, that guy is taking this obedience stuff very

8 seriously?

9 A That's correct.

10 Q It struck you as abnormal?

11 A It just made me worry more about him.

12 Q Tell me a little bit about -- your notes seem to

13 indicate that Mr. Hilton, quote, self-diagnosed himself, end
14 quote, with multiple sclerosis or some variant thereof;

15 accurate?
16 A He was reading a lot of literature, as best I could
17 tell, and trying to find what would describe him and would
18 believe what he read.
19 Q And there was a time 1n the inception that

20 self-diagnosis seemed to be, I would describe as derogatory,

21 meaning that you didn't necessarily adopt the same op1n1on or

22 the same feelings just because the patient expressed them?

23 A A trait to this autoimmune disease, which we believe

24 1s quite common, is they can't find anything to describe 1n

25 what they read. They get all kind of, it could be this, it

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1 could be that. And I never expect them to really know what it

2 1 s.

3 I look to see if they get better on the diet. And I

4 thought he got better, but then he -- you know, he would

5 sw1ng. And the body is what gets better, not the brain. The

6 brain sometimes gets better, but the brain disorder continues

7 and it usually needs

8 Q If you could repeat that last part again?

9 A The brain disease usually continues and needs

10 treatment.
11 Q And you said something usually?

12 A The body gets better. The aches, the pa1n, the

13 tingling, those kind of things usually get better.
14 Q Later on 1n time though in your notes, it seems to

15 indicate that you may have adopted Mr. Hilton's thinking or

16 concerns and you made notations in your chart or your file
17 that the patient may actually be right?
18 A That's when he was confusing me 1n the last s1x
19 months I was taking care of him. I did not know what the
20 answer was because he was basically changing what he had
21 originally told me and my treatment didn't seem to be working
22 as well. And I was wondering what he might have extra.

23 Q So we have a circumstance that initially the patient

24 1s self-reporting that these are my symptoms, you initiate a
25 treatment regimen, the patient contends that there's some

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1 improvement. You're of the belief that things are working

2 okay and getting better.

3 But then the patient comes back in, and this is

4 during your last six months of treatment essentially, and the

5 patient is claiming that the symptoms are either recurring or

6 getting worse now?

7 A what happened 1n this last s1x months 1s his loss of

8 work, he had no money, and he's mov1ng into the woods. And

9 you're see1ng a man that's starting to change in a variety of

10 ways. And that's when I started seeing what I've just
11 described, when he was living 1n the woods.

12 Q But it prompted you enough to make a notation 1n

13 your chart to say, the patient may be right?
14 A I wrote that. I did not what I'm wondering 1s am

15 I correct in what I'm doing and should I be backing off. And,

16 of course, he's swearing that what I'm doing is helping him.
17 Q And, of course, for multiple sclerosis and things of
18 that nature -- and I'm not the doctor, you are -- but my

19 assumption is is that 1n the land of uncertainty, the next

20 prudent step would be to refer him to a neurologist and have

21 an MRI or something along those lines?

22 A There's not too much they do forMS and I did not

23 think he had MS. I wrote down that he might, but it was not

24 very big in my belief.

25 Q okay.

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1 A I did not think he would go to another doctor. I

2 did not think he had the money to shop or to do anything.

3 Q Regardless of -- do you -- are you 1n the best

4 position to treat a patient for multiple sclerosis or would a

5 neurologist be?
6 A well, a neurologist would definitely be necessary.
7 If I thought he was deteriorating 1n any way neurologically, I
8 would have. He was deteriorating 1n his symptoms, he was
9 twitching, but he's a pretty unusual man.
10 Q Despite his expressions, despite your beliefs, and
11 irrespective of his financial situation, he was not referred

12 to the neurologist because you didn't feel that he would go or

13 had the funds to be able to afford it?
14 A And I also didn't think it would help.

15 Q And also his what?

16 A I did not think they would find anything useful.
17 Q understood.
18 A MS is a long-term disease. It has a very peculiar
19 starting time. It could be starting with little variable

20 symptoms for six years, five years. I had a patient 1n the

21 military sent my a letter five years after she left, by the

22 way, I've just been diagnosed with MS. That's how long it

23 took.
24 Q so the 80 milligram dosage was prescribed to him

25 from June until July of '07 -- June of '06 until July of '07?

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1 A Correct.
2 Q And that dosage was prescribed to him despite him

3 evidencing those behaviors of pressured speech, weight loss,

4 paranoia, erratic behavior, living in the woods, losing jobs,

5 et cetera?
6 A It should have been dropped at that time. I should
7 not have kept it that high, no. That was my conclusion with
8 the board.

9 Q He was kept at that -- he was kept at that dosage

10 because first you were optimistic that you were helping him,
11 and then secondarily because he did express feelings that

12 you that the treatment was helping from time to time?

13 A Right, he kept stating that, you know, that that's
14 what really makes me sharp, that's what gives me the energy.

15 Otherwise, I'd fall back asleep.

16 Q I don't know what you have 1n Georgia, we have a

17 circumstance and a particular name for it where you've got
18 concerns for someone's mental health, their safety for
19 themselves or for that of the community. was he manifesting
20 behaviors that necessitated that you should have reported his
21 behavior to law enforcement for him to have additional mental
22 health treatment?
23 A I never thought that was an issue. I thought he was
24 living alone at the woods and the behavior I saw wasn't go1ng
25 to bother anybody. If he was trying to hold a job, I might

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1 have been concerned. But, no, that thought never rose 1n my

2 mind.

3 Q So had he been interacting with society on a regular

4 basis, you would have had enough concern to report him to

5 authorities for him to be involuntarily hospitalized and

6 evaluated, but because he was not associating or integrated 1n

7 society, you did not feel that that was necessary?

8 A I never took his behavior as abnormal enough to need

9 reporting. Even when there were murders reported, I never

10 said, well, I know Gary is the man doing that. There was some
11 place 1n my heart that liked him and trusted him and agreed

12 with him and I just could not believe he had that behavior.
13 So I don't think I would have necessarily put him 1n a
14 facility as if he might do that in the future. It never

15 occurred to me that he would.

16 Q when was it that you learned of Mr. Hilton's
17 involvement 1n the homicide of Ms. Emerson in Georgia and the
18 homicide of Ms. Dunlap in Florida?
19 A It was around christmastime.

20 Q christmastime of 2007?
21 A Correct.

22 Q At that point, he's no longer a patient of yours. I

23 1mag1ne you're watching it on the news?

24 A That's correct.

25 Q How was it that your license to practice medicine 1n

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1 the state of Georgia was placed 1n jeopardy? How did that

2 come to pass?

3 A well, when they died, I knew I would be reviewed and

4 the Ritalin was what they were upset about and thought I gave

5 too much of. And I had to agree. And so I took the --

6 Q I need you to repeat your answer again please.

7 A They had courses I have to take and a fine I had to

8 pay. And I went through all the steps.

9 Q Meaning that because Mr. Hilton was prescribed the

10 medication by you, that medication was connected or associated
11 with the death of one or both of the individuals, because you

12 were the prescribing physician, the Georgia Medical Board

13 initiated a rev1ew of what you did and how you did it?
14 A Correct.

15 Q And the fallout, if you will, is I guess you were

16 placed on a probationary period, ordered to pay a fine, and

17 take -- remedial is probably a poor word but continuing
18 education courses on those aspects?
19 A Yes, correct.

20 Q And you were also ordered to not participate 1n the

21 practice or any area of medicine related to psychiatry or
22 psychology?

23 A Correct.

24 Q were you placed under subpoena by the --

25 Mr. Hilton's defense team in Georgia, North carolina, or 1n

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1 Florida at any point 1n time?

2 A I was ready to go to Florida to testify. I don't

3 know exactly what they had written or told me I had to do, but

4 I knew that was a possibility I might have to go testify 1n

5 Florida. I don't remember whether there was a subpoena
6 involved 1n that.
7 Q were your circumstances at the time any different
8 than they are now? And what I mean by that, would you have
9 been as willing to testify as cooperatively as you are today
10 back at the time of Mr. Hilton's trial here 1n Florida?
11 A uncomfortably, but, yes.

12 Q Fair enough. were your circumstances procedurally

13 or administratively different back then as compared to what
14 they are now?

15 A No.

16 Q You had already navigated the process with the

17 medical board and you had whatever punishment that they handed
18 down, that was behind you at that point?
19 A Correct.

20 Q so it would not have been a circumstance that you

21 were making admissions or anything like that that other people

22 didn't already know?

23 A That's correct.

24 MR. MORRIS: Dr. Delcher, those are all the

25 questions that I have. Ms. Cappleman, who is the

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1 prosecutor, 1s go1ng to have an opportunity to 1nqu1re of

2 you now.

3 THE WITNESS: Thank you.

4 CROSS EXAMINATION
5 BY MS. (APPLEMAN:

6 Q Hello, Dr. Del cher.

7 A Hello. Tell me your name aga1n.

8 Q Georgia Cappleman.

9 sir, could you tell us a little bit about your

10 education and qualifications as an endocrinologist?
11 A MD from the university of Florida. I was at Duke

12 for probably, what, three years of fellowship in endocrinology

13 and I passed my boards. And I was on the faculty at Emory for
14 almost ten years in endocrinology and became an associate

15 professor. so I think I'm reasonably qualified.

16 Q How long have you been a licensed physician?
17 A Gee, I graduated in '66. I practiced medicine as a
18 resident. I don't know when I got the license, I don't
19 remember that date, but, you know, somewhere between '66 and
20 I 72 •

21 Q okay. And have you been practicing primarily as an

22 endocrinologist that entire time as your specialty?

23 A until about age 60, I've been chief Medical officer

24 for biotech companies for eight or n1ne years and they gave me
25 a retirement plan. we were never going to have a product come

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1 to market so I decided to join Altrusa as one of it's

2 physicians. And that's when I started the Magnesium shots and

3 the B vitamin shots and the gluten-free diet. That became

4 part of our alternative medicine practice. And, by the way,

5 cash only. And I kept my endocrine patients, but I became
6 less a, quote, endocrinologist and more of a who-knows-what
7 doctor.

8 Q During what time periods were you 1n a practice

9 where you saw patients regularly?
10 A I've always seen patients. Even when I was chief
11 Medical officer, I worked out time to see patients.

12 Q I'm sorry, what was the last part?

13 A I've always seen patients. In the faculty at Emory,

14 you still see patients.

15 Q okay.
16 A You just see them less frequently.
17 Q okay. And do you have any special training or
18 qualifications in the area of psychiatry?

19 A Every endocrinologist sees a great deal of

20 psychological problems. They always come with other symptoms.
21 Q They always come with -- what did you say?

22 A Most people with an endocrine problem have enormous

23 emotional 1ssues. So I'm used to handling that fairly well.

24 Q All right. So in your practice, 1s it routine for

25 you to treat those emotional issues or mental health issues as

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1 well as the endocrine problems?

2 A Yes.

3 Q when you said you first met with Mr. Hilton, you

4 were hesitant to take him on as a patient. why was that?

5 A He's a peculiar man.

6 Q How so?
7 A There was a restlessness to him. He was a laborer
8 that he had a number of ideas that I didn't think were
9 correct.

10 Q okay. Like medical ideas or ideas about?

11 A Yeah, I have this, I have that. He had his own

12 theory of why he was sick and I didn't think any of those were
13 correct.
14 Q So you sensed that he would be a difficult patient?

15 Difficult to treat?
16 A I wasn't positive I could trust what he told me.
17 Q And did you do anything
18 A But he earned my trust.
19 Q -- you do anything to investigate what he told you

20 as far as trying to obtain anything about his psychiatric

21 history from maybe seeing other physicians?

22 A I never did any work on that front. our exper1ence

23 has been with what he had, we ought to have been able to help

24 him 1n the way I treated him.

25 Q And I'm sure you said this on direct, but I didn't

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1 catch it. Did you diagnose him with MS?

2 A Never.

3 Q Do you agree that mental health issues can be

4 triggered or exacerbated if drugs are mis-prescribed?

5 A Absolutely.

6 Q And after Mr. Hilton's Ritalin reg1men began, you

7 noted that he was clearly exhibiting signs of mania and

8 increased depression; correct?

9 A At two different times, correct.

10 Q okay. Yet his Ritalin dosage was increased and
11 maintained at the 80 milligram dosage; yes?

12 A It was started earlier than either of those two and

13 continued at that dose despite those two events.
14 Q All right. And at the 80 milligram dosage, I think

15 you said that's at or slightly above the FDA approved amount,

16 but actually isn't the FDA approved amount 40 to 60 milligrams
17 as a recommended dosage range?
18 A Correct, but you can find articles in the literature
19 of 80. You can find articles in the psych literature using

20 80.
21 Q But the recommended dosage --

22 A Is 60.

23 Q forty to 60?

24 A Correct.

25 Q okay. And you were asked a little bit about being

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1 sanctioned by the Georgia Board of Medical Examiners for the

2 treatment of Mr. Hilton. Do you agree with the findings of

3 the board?

4 A Yes.

5 Q All right. so the board found that you postdated

6 prescriptions and that that was improper, to Mr. Hilton; do

7 you agree with that?

8 A The -- it's the law that had changed. Normally you

9 write the date -- I would write today's date, with a month

10 from now's date, and two months from now's date. They wanted
11 me to write them all today's date and then fill it with -- a

12 fill it date. It was just a trivial little thing about the

13 date. I did not think it was of great importance. But, yes,
14 I made up the dates.

15 Q when you saw Mr. Hilton for the last time on July
16 19th of 2007, was he given three months worth of Ritalin
17 prescriptions at that time?
18 A Yes. Am I coming through?
19 Q Yes, sir, I got it. And when he was g1ven the three

20 months, if he took it as prescribed, that would get him

21 somewhere to about October of 2007; is that right?

22 A That's correct.

23 Q And you did not prescribe him any additional Ritalin

24 after you saw him?

25 A Correct.

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1 Q After you saw him 1n July?

2 A That's correct.

3 Q All right. Do you have any information or

4 indication that he was under the influence of the Ritalin that

5 you prescribed when he murdered cheryl Dunlap in December of

6 2007?

7 A I have no clue.

8 Q or when he murdered Meredith Emerson 1n January of

9 2008?

10 A No clue.
11 Q The board found that you departed from and failed to

12 conform to the minimum standard of acceptable and prevailing

13 medical practice in that you failed to document any concern
14 for or take any intervention regarding the patient's report of

15 rapid speech, manic spells, despite knowing the stimulating

16 effects of Ritalin and potential to precipitate a man1c
17 psychotic episode.
18 Did you know about the stimulating effect of Ritalin
19 and the potential to precipitate a manic or psychotic episode?

20 A Yes.
21 Q You were also sanctioned for failing to keep records

22 properly, failing specifically to document a psychiatric

23 history, how you arrived at your psychiatric diagnosis, the

24 rationale for medications used to treat psychiatric diagnoses,

25 and the informed consent process, as well as the progress of

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1 the patient's treatment response and symptoms. Do you agree

2 with that?

3 A Yes.

4 Q All right. And as such, you were ordered to

5 complete 50 hours of Continuing Medical Education in the area
6 of medical ethics. Did you complete that Continuing Medical
7 Education?
8 A Yes.
9 Q You were ordered not to practice 1n the area of
10 psychiatry and that your practice of psychiatry would be
11 considered a violation of this order and result 1n further

12 sanctioning of your license, including revocation. Have you

13 continued to practice psychiatry in conjunction with the
14 endocrinology since this order?

15 A That's a tough question. That's a tough question

16 because we all have neurotic issues, not psychiatric 1ssues.
17 I don't see psychiatric issues; I refer those to a
18 psychiatrist. But the neurotic 1ssues, absolutely.
19 Q You say they're often intertwined. Have you made a

20 careful habit going forward to refer out any patients that

21 have intertwined psychiatric issues to a psychiatrist?

22 A Yes, yes.

23 Q But you did not do that for Mr. Hilton?

24 A I never thought he would go to another doctor.

25 Q But you did not refer him to a psychiatrist?

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1 A I did not --

2 Q All right.

3 A -- attempt to refer him to one.

4 Q And you were fined $7500. Did you pay that money?

5 A Yup, yes.

6 MS. CAPPLEMAN: All right. One moment, please, Your

7 Honor.
8 THE COURT: You may.
9 (Attorneys confer.)
10 BY MS. (APPLEMAN:

11 Q Dr. Delcher, did you note 1n your file regarding

12 your visits with Mr. Hilton that he you found him to be

13 dangerous or feared that he was dangerous?
14 A I never thought he was dangerous. I never thought

15 he was dangerous.
16 Q okay.
17 A No.
18 Q Thank you.
19 MS. (APPLEMAN: One moment.

20 (Attorneys confer.)
21 MS. (APPLEMAN: Nothing further.

22 THE COURT: Redirect.

23 REDIRECT EXAMINATION

24 BY MR. MORRIS:

25 Q Briefly, Dr. Delcher. Ms. cappleman asked you

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1 whether or not the recommended dosage by either the Georgia

2 Board of Medicine or the Food and Drug Administration is 40 to

3 60 milligrams. You disagree with their definition of the

4 max1mum dosage?

5 A Not anymore. I would never g1ve that dose aga1n.

6 Q so you would comply or comport with what they

7 recommend to be the maximum dosage and you would not exceed it
8 any longer?

9 A That's correct.

10 Q You indicated that your last visit with Mr. Hilton

11 was 1n July of '07; accurate?

12 A Correct.
13 Q so you would have g1ven him a prescription for 30
14 days from July to August, August to September, and September

15 to October.

16 A Correct.
17 Q And if Mr. Hilton had medication, Ritalin, on his
18 person from a prescription that was filled in October with
19 your name on it, that would be sensible; he just wouldn't have
20 taken the medication every day. He would have had leftovers,
21 if you will?

22 A Correct.

23 Q was that normal in Mr. Hilton's circumstance or are

24 you 1n a position to comment?

25 A I have no way of knowing.

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1 Q He came regularly every three months to get his

2 prescriptions?

3 A That's correct.

4 Q There's nothing though that would have prohibited

5 him from using the September prescription to fill in October
6 and he still may have had the October prescription that he
7 could have gotten filled in November or December; correct?
8 A Pharmacists are usually pretty good about only
9 g1v1ng you a month, but that is correct.
10 Q well, and I understand the month, but my point being
11 1s 1s if you were to prescribe the medication to me, give me

12 three months of supplies, and I don't use my entire month's

13 supply so I go in to fill the second prescription day 45 or
14 day 60. I still may -- I may spread those prescriptions out

15 to actually last for four months, five months. That would

16 be
17 A That's correct.
18 Q okay.
19 A You could do that.

20 Q Tell me what your knowledge 1s 1n terms of Ritalin's

21 and I recognize that you're not a pharmacologist-- but
22 tell me what your knowledge is of Ritalin's addictive
23 properties or characteristics?
24 A The addictive properties, as far as I know it, are
25 usually in different situations than this man. It's a rare

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1 disease 1n regular patients we see out 1n the world.

2 Q well, Ritalin 1s --

3 A I guess --

4 THE COURT: Let him finish, Mr. Morris.

5 BY MR. MORRIS:

6 Q I'm sorry, I didn't mean to speak over you. Go

7 ahead.

8 A Go ahead.

9 THE COURT: You can finish your answer, Dr. Delcher.

10 MR. MORRIS: The Judge would like you to finish your
11 answer. Go ahead.

12 THE WITNESS: what was the question again?

13 THE COURT: Ask a new question. Go ahead,
14 Mr. Morris.

15 MR. MORRIS: Yes, Slr.

16 BY MR. MORRIS:
17 Q The question that I had asked are what are the

18 addictive properties or circumstances surrounding Ritalin?

19 A They enjoy the mood, they like the mood, they seek

20 it. He never showed any of that behavior to me. He never

21 called early. He never changed anything. Each time he said,

22 you know, I could just use a little bit stronger. I never

23 thought he was addicted to it in any way.

24 Q And I guess my question hones in on whether or not

25 Ritalin is a drug that you can simply quit cold turkey or you

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1 have to be titrated off of?

2 A Normally we would titrate you off of it for about

3 s1x weeks.

4 Q And that's because the human body is go1ng to have

5 an adverse reaction to being deprived of the medication

6 suddenly?
7 A You m1ss the stimulation. You m1ss the focus.

8 Q Do you know how long it takes liver enzymes 1n the

9 body to be able to recover from having Ritalin in it on a

10 steady and constant basis for a two-and-a-half, three-year
11 period of time?

12 A I do not know that.

13 Q Thank you, Dr. Delcher. I don't have any other
14 questions. we appreciate you being here and participating

15 with us today.
16 THE WITNESS: Thank you.
17 THE COURT: All right. Let's take a few minutes and
18 we'll finish up with Ms. Fuentes.
19 (Recess taken from 4:03 p.m. to 4:13 p.m.)

20 THE COURT: Be seated, please, folks.

21 we will resume with Ms. Fuentes' testimony. You

22 remain under oath, Ms. Fuentes.

23 THE WITNESS: Yes, sir.

24 whereupon,
25 BEATRIZ FUENTES

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1 was recalled as a witness, having been previously duly sworn,

2 was examined and testified as follows:

3 THE COURT: You may proceed, Mr. Morris.

4 MR. MORRIS: Thank you, Judge.

5 DIRECT EXAMINATION (Continued)
6 BY MR. MORRIS:
7 Q Ms. Fuentes, when we left off, you had indicated

8 that 1n all of your experience, you'd never seen anything like

9 this at all?

10 A Right.
11 Q And that's -- your distinction is related to the

12 absence of theme or working together between the guilt phase

13 and the penalty phase?
14 A Both of them, both.

15 Q Tell me a little bit -- so we get up to the doorstep

16 of trial, which is late. And then what was it was your
17 understanding of what the strategy was or what the defense
18 was? I know that you're not responsible for it as the lawyer,
19 but certainly you've got to weigh in on it and have some
20 understanding of it. what was your understanding of the guilt
21 phase?
22 A when we started the guilt phase, it was, go as
23 1nnocence. That's what we went with. In other words, that
24 they were to deny the evidence that was coming in as, he
25 didn't do it, he didn't do it, it wasn't him.

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1 Q And that was go1ng to fly 1n the face of what was to

2 be presented in the penalty phase?

3 A That's what they wanted.

4 Q Let's talk about -- when you say "they," who's

5 "they?"

6 A Ines, predominantly. And the rest of the staff

7 didn't care. In other words, they didn't argue with her over
8 that. Paula did not argue; Rob did not argue.

9 Q why would they have not argued with her?

10 A Because at the time, they hardly, especially Rob,
11 was not on speaking terms with Ines. I was the go-to in

12 between. Rob would tell me something, I would then go and

13 tell Ines. Ines would say, be the spy, go over there, tell me
14 what's going on over there. And I would go and tell her what

15 was go1ng on; and back and forth, back and forth.
16 Q Tell me about -- as we tease out what the strategy
17 was, what were your interactions like with Mr. Hilton? Give
18 me an estimate of how frequently you met with him, talked to
19 him, et cetera.

20 A Me and Mr. Hilton had a great relationship. we

21 spoke every single week, more than -- probably at times more
22 than once. I would confirm everything that I was getting,
23 whatever it is the information that I had. we were going back
24 and forth. okay, do you remember this? Do you remember that?

25 Then towards the end of the time or pretty close to

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1 the trial came evidence v1ew1ng. And the evidence in this

2 case was huge. And so we found he had a huge, maybe a

3 couple of boxes that were found 1n the woods that had all of

4 his belongings in it. And so we went through it all.

5 And in it, there were a lot of little cards, like
6 three by five cards, where he had written 1n very, very little

7 writing a lot of information and a lot of people's names and a

8 lot of phones and new people that I had not interviewed. I

9 went meticulously through all of those cards and I located as

10 many people on those cards that I could find.

11 Q Let me stop you on that because where I'd like to

12 focus is were you involved in discussions or present in

13 discussions when defenses were discussed with Mr. Hilton or

14 strategies related to his trial?

15 A There were no strategies discussed with Mr. Hilton.

16 I would go with Ines to most of the appointments she had with

17 Mr. Hilton and they were very few and far between.
18 Q well, you had the benefit of hearing Ms. Suber's
19 testimony where she says that Mr. Hilton wanted a trial or
20 life. And you said something similar to that. But were there
21 discussions with him about, that's not a good idea, or here

22 are your other options that are available?

23 A No.
24 Q can you preclude the possibility that Ms. Suber had
25 those outside of your presence?

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1 A I would say she did not. And the reason for that is
2 because her mindset was made the moment that we basically went

3 to Georgia and he said, this is where I want to go. And she

4 never deviated from that at all.

5 Q Meaning that initially, before the Public Defender's

6 office has any of the discovery or evidence, before you have

7 any of the mitigation or understanding of the evidence, and

8 even before Mr. Hilton is able to have conversation,

9 intelligent conversation and discourse with his lawyer, the

10 decision was made in terms of what Ms. Suber wanted the
11 strategy to be?

12 A when we spoke to Mr. Hilton 1n Georgia, he gave us

13 all of the facts of what had happened 1n this case. we knew
14 everything that had happened in this case. so with that

15 knowledge also came, I want to take this to trial and I want

16 to waste the State's money if they're going to put me to
17 death.
18 Q If the State 1s go1ng to put me to death?
19 A Yes.

20 Q Did you consider that a rational response or one

21 that you tried to counsel him differently on?

22 A I don't think that anything that he was talking

23 to -- about to us at the time I would have considered

24 completely rational. we went to see him and he was extremely
25 manic when we saw him. He was manic.

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1 He had -- apparently when he was arrested in Georgia

2 was cry1ng for his Ritalin. He was cry1ng under a table

3 because he needed his medicine. They would not give him his

4 medicine. so the public defender decided to overdose him on

5 humongous cups of coffee and I'm talking about huge cups of
6 coffee. And he was high as a kite on caffeine. And so
7 that -- that was the first.
8 Then he -- once he came to the reception center,
9 then he was a little bit more controlled. Time had passed. I
10 think he had already come down from having these medicines on
11 him. so he came down. And then he was still very adamant,

12 I -- if I am going to be put to death by the State of Florida,

13 you're going to have to pay-- they're going to have to pay
14 for it.

15 Q okay. Did your interactions with Mr. Hilton over

16 time after he was transferred from there to here, did his
17 position on that change, or morph?
18 A No.

19 Q so he still had those express1ons, but you do not

20 believe that options or choices were presented? It was simply

21 forward?

22 A It was forward.

23 Q Based on your exper1ence as a mitigation specialist,

24 was that a good strategy?

25 A You can never make up your mind on any type of

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1 strategy when you first meet the client, ever. In fact, you
2 should not even decide what your strategy is until you have

3 evidence to support your strategy or you have information and

4 records that come in and history that comes in, interviews

5 that come 1n.

6 It is ill-advised to make a determination on, let's

7 say, mitigation before you speak to anyone; or even the guilt
8 phase before you even have the discovery. You don't have the
9 discovery. we have whatever the client said, but we don't
10 have any discovery to prove anything he's saying or to
11 corroborate anything he's saying. so to make that

12 determination would be ill-advised.

13 Q I suppose because if you make that determination so
14 early on, you may find yourself 1n a circumstance of fitting a

15 square peg into a round hole?

16 A Exactly.
17 (Attorneys confer.)
18 MR. MORRIS: Judge, may I approach?
19 THE COURT: YOU may.
20 BY MR. MORRIS:
21 Q Ms. Fuentes, let me show you what's been marked for

22 the purposes of identification as Defense Exhibit No. IV and

23 see if you recogn1ze that?

24 A I do.

25 Q And what do you recogn1ze that to be?

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1 A This is what s1nce I had the opportunity to sit

2 here and listen to Ms. Ines speak, she was talking about a

3 matrix. This would be a mitigation matrix. This is what she

4 would think or she would be saying. There was one for the
5 guilt phase and one for mitigation. This one was created by
6 me.
7 These are all of the witnesses that were spoken to
8 by me. And in this form, we have at the beginning whether or
9 not a witness is good for mitigation or not. we have the
10 name, we have the address, we have the phone numbers, we have
11 the date that he was contacted, and my notes -- very small

12 notes on what basically a synopsis of what the interviews were

13 like.
14 Q okay. so it's your work product that you reduced

15 down to a simplistic viewable form that a person can digest

16 easily?
17 A Exactly.
18 Q Judge -- Ms. Fuentes, you had mentioned that
19 earlier, that you had indicated the witnesses that you've
20 identified, whether they're a good one or a bad one, whether
21 they've got information or they don't have information, and
22 what that information may be or not be.

23 A Yes.
24 MR. MORRIS: okay. Judge, at this time, the defense

25 would offer into evidence Defense Exhibit No. IV.

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1 MS. CAPPLEMAN: No objection.

2 THE COURT: Any objection?

3 MS. CAPPLEMAN: No, sir.

4 THE COURT: All right. It will be admitted.

5 (Defendant's Exhibit No. IV received 1n evidence.)
6 BY MR. MORRIS:
7 Q so you interview some 300 witnesses, identify them,
8 identify the ones that you believe are necessary to tell the
9 life story, if you will, and you whittle the list down.
10 subpoenas are issued for those witnesses and you believe that
11 the defense team is prepared to make that presentation to the

12 jury?
13 A That was my understanding.
14 Q okay. If I can show you what's already been entered

15 into evidence as Defense Exhibit No. III, and ask you what
16 that is?
17 A That is a copy of the PowerPoint presentation that I
18 was supposed to testify to.
19 Q okay. And let's talk about that. I know that
20 you're not a lawyer, but did you have a witness who was able
21 to speak as to the relevance of particular documents, as to
22 each of the particular frames or slides in the PowerPoint
23 presentation?

24 A I had witnesses that would match up with the way

25 that the life history was created.

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1 Q By way of example, Ms. Debag, I believe one of the

2 first slides 1s a birth certificate maybe?

3 A Right. His mother would have said, yes, that is his

4 birth certificate. Also, the wedding -- the marriage license

5 of his parents.
6 Q I'm not go1ng to have you go through all of them. I
7 just wanted to make sure that I understood what the game plan
8 was.
9 so explain then, the penalty phase presentation,
10 we've got the 30 lay witnesses, we've got the experts that
11 have been lined up initially by Ines but then by Mr. Friedman,

12 and we've got your PowerPoint and your narrative as to -- as

13 it relates to that PowerPoint?
14 A Yes.
15 Q was there anything done initially to vet whether or
16 not the court, or Judge Hankinson more specifically, would
17 allow the presentation of the PowerPoint or your narrative?

18 A No.

19 Q I'm not go1ng to get you mired in evidentiary

20 1ssues, but had Judge Hankinson said, I'm not going to allow
21 you to present that PowerPoint presentation, the 30 witnesses
22 that you had prepared as lay witnesses, they would have been
23 able through direct examination -- the same information
24 contained in those slides would have been able to have been
25 elicited from them; correct?

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1 A I wouldn't say 100 percent of this.

2 Q Give me a percentage. Take a stab at it.

3 A Like 80.
4 Q Eighty?

5 A Eighty percent.

6 Q Eighty would have been better than zero?

7 A Right.

8 Q I believe, and I don't know that you were

9 necessarily there, I believe some of it came in maybe
10 different ways or shapes or forms, I don't know, but the
11 witness -- the witnesses that you had could have addressed the

12 lion's share of what's contained in the presentation or the

13 slide show?
14 A Yes.
15 Q so we now get to the guilt phase, charge ahead, and
16 Ines 1s charging ahead. Explain to us, because I have
17 difficulty in understanding, Rob Friedman is in charge and
18 somehow Ines is still involved and overseeing it, but then
19 she's not. who was 1n charge based on your observations or

20 your understandings?
21 A In charge of which, the guilt or the?

22 Q Guilt and penalty or both.

23 A Ines was in charge of the guilt. And Rob was 1n
24 charge of the penalty.

25 Q so by the time that Mr. Friedman was inserted into

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1 the case, essentially Ines had been removed from the penalty
2 phase?

3 A It wasn't originally supposed to be that way, they

4 were supposed to work together, but they had conflicts in

5 personality.

6 Q what was your perception of why Mr. Friedman was

7 inserted into the case in the first instance?

8 A Because the only one that had any history as far as

9 being in a trial with her was Rob and Paula.

10 Q so was there a problem that had been identified that

11 necessitated the insertion of someone new?

12 A The problem was is that she was say1ng she didn't

13 have enough time. And I think that this is -- once it kicked
14 in when the three months was denied. And so then from that

15 moment on, she didn't have any -- she was complaining saying,

16 I don't have time, I don't have time, I don't have time. And
17 so then Nancy, I think, took it on and said, okay, I'll give
18 you Rob, because he's the one that has worked with you before.
19 so here's Rob.

20 Q And I want to make sure that I understand and that

21 the court understands the chronology of things because it's my

22 understanding that Mr. Friedman was inserted into the case

23 maybe around August of 2010. And it's also my understanding

24 that Ms. Suber didn't start moving for continuances until

25 November, December, and January. The one that was referenced

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1 earlier was 1n January.

2 A okay. That could have been the case; although, at

3 the beginning, Rob wasn't really doing a lot.

4 Q so he was inserted to be a helping hand and

5 hopefully that he and Ines would get along and it would, I

6 guess, lessen the burden on Ines and help her to get prepared?
7 A Right.

8 Q And at some point we've got clash of the Titans 1n

9 personalities and nobody can get along and nobody can speak
10 with one another?
11 A Right.

12 Q Rob is doing his thing, Ines 1s doing her thing, and

13 nobody knows what the other is doing?
14 A Right.

15 Q so we fast-forward to that 90-day continuance.

16 You've had an opportunity to see some of the e-mails. And
17 there's e-mail correspondence or traffic that had happened
18 interoffice among people, some of it a little sn1ppy.
19 Tell us what the e-mail circumstances were 1n terms

20 of what e-mail correspondence is going back and forth amongst

21 the parties. what you remember.

22 A Yeah, what -- what mostly happened is that if anyone

23 had a different op1n1on than Ines on anything, then she would

24 go ahead and send an e-mail, an e-mail at times bashing the

25 other person for their opinion. And it was -- I would say it

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1 was to the level of almost paranoid. You know, she was a

2 little bit paranoid about the way that others were looking at

3 her.

4 Q In terms of her decision making or her v1ew of the

5 case or what?
6 A Her v1ew of the case, the way that she was dealing
7 with the staff. she pinned one against another. Again, for
8 instance, I'm the mitigation specialist and then we have
9 chris, the fact investigator. she would say to me, do you
10 know that chris did this, and this, and this, and this? Then
11 she would go to chris and say, Betty did this, and this, and

12 this, and this.

13 And then it was like me and chris are go1ng like,
14 okay, like why are you talking badly about me when I

15 haven't -- you know, things like that. so she pinned

16 everybody against each other.

17 And so then these e-mails were her -- I'll just g1ve
18 you she would e-mail me at night, at 10:00 at night. And
19 she would say, I have 40 witnesses, I need you to talk to them
20 all by tomorrow. That kind of thing, like.
21 Q And some of them, the e-mails, if I'm not mistaken,
22 would it be a fair characterization to call them a rant in the
23 sense of what she's saying?

24 A The e-mails appear to be someone not all together.

25 Q Not all together; meaning, not well-reasoned, not

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1 well thought through?

2 A All of the above.

3 Q That gets us to the point that Ines is asking for

4 these additional 90 days, which is January 25th, 26th, the

5 record will best reflect. It's very close to the actual

6 trial. was it only then that Mr. Friedman ends up being

7 thrown the entire penalty phase or was it prior to that?

8 A I think that's when everyone became super vigilant

9 1n whatever it is that they had to do. That's the beginning

10 of everybody working at 100 percent.
11 Q Moments before a capital case 1s to begin?

12 A Yeah.
13 Q So what interactions are you then having with
14 Mr. Friedman to make certain of preparedness for what you

15 believe to be the presentation that was going to be made?

16 A well, Mr. Friedman took it upon himself to look at

17 my list and then started calling the witnesses without telling
18 me he's calling the witnesses. These were very fragile

19 witnesses. when you have a death penalty case, it is very

20 difficult to get witnesses that are willing to come and

21 testify because they don't want anything to do with a case

22 like this. And so you have to treat them all with kid gloves.

23 And he did not do well with communicating with people.

24 So he would call one of the witnesses, and the

25 witness would get all bent out of shape. And they could call

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1 me and say, I don't want to speak to this man ever aga1n; I'm
2 not coming. So then I would go to him and said, okay, we're

3 having problems with this. If you like, I will sit here with

4 you while you call them. No. He would just ignore that and

5 continue to call the witnesses. And he killed or he destroyed

6 the communication with many of the witnesses on the mitigation

7 list.

8 Q Based on his interactions then, what -- how did

9 things transform? The guilt phase lasted a fair bit of time.

10 I can't imagine that you were sitting down here glued to the
11 courtroom. You probably were busy doing things and getting

12 things organized?
13 A The only time that I did get involved in the guilt
14 phase is when there was a witness that was either listed or

15 not listed as a State witness, it was a snitch somewhere. And

16 they had already sent this man to pr1son. And I went and
17 interviewed that snitch for the guilt phase.
18 But apart from that, throughout the whole entire
19 guilt phase, I was sitting down putting the final things on
20 the Power presentation and locating -- out of all the people
21 in his life, I was not able to find one person at the time
22 which was his wife, Diane Baugh.
23 The Saturday the Saturday before penalty phase
24 kicked in, I found her 1n Minneapolis-St. Paul. I found her
25 and she would have been a fantastic witness. She was willing

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1 to testify. I talked to her and I was able to find her in

2 St. Paul. The way to find her, I actually called the police

3 department in St. Paul and told her, go knock on this woman's

4 door.

5 I also Google Earthed her building and looked at a

6 business across the street. And I said -- I called the

7 business and I said, please go knock on this woman's door,

8 have her call me. whoever got to her first between the cop or

9 the people across the street, she called me. And that
10 interview was done on that Saturday prior to her -- to the
11 penalty phase that was about to begin.

12 Q I've heard the word "streamlined" to describe the

13 penalty phase a couple of times. when was it that you became
14 aware that the penalty phase presentation was going to be,

15 quote, streamlined, end quote?

16 A That Saturday, after I had found her and spoken to
17 her, I was at my office. And my office was across the street
18 from this building. Rob's office was in this building. But
19 he went downstairs outside of the building to smoke and he had

20 his secretary with him. I came to talk to him and I said,

21 Rob, I found another witness; this 1s a great witness for us.

22 And he said, well, I just have to tell you, Dr. Delcher is not

23 COml ng.

24 Q what was your reaction to that?

25 A I had a fit. Because the key of the whole entire

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1 mitigation was, okay, he had psychological problems all along,

2 all along, but then you have a doctor that's prescribing

3 medication and he has been sanctioned by the board -- the

4 Georgia Board for giving these medications, and has put him
5 high as a kite. And then right after that, he starts
6 committing all these crazy things.
7 And so to me, that was the beginning or putting all
8 together all of the issues that this man had. Here is this

9 doctor that was not a psychiatrist, gave him some psychiatric

10 medication, put him high as a kite, then all of the witnesses
11 after that were all of the witnesses that saw him fly as a

12 kite -- or high as a kite everywhere else.

13 so I had the witness before that where he was -- he
14 was an odd human being. He has always been odd, okay. But

15 there have been human beings prior to this Ritalin that saw
16 him. There were women that were in his van, there were women
17 that went hiking with him. There were women that hung around
18 with him. And none of those witnesses had any problems and
19 were never, ever attacked by this man or anything.

20 But all of a sudden he starts losing it. It's into

21 this medicine. He then starts living in the woods. He
22 becomes a totally dysfunctional human being. And so if you
23 don't have the reason for the change in that kind of mindset,
24 and you're killing that mitigation, then how do you explain
25 the difference?

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1 Q well, through the witnesses that you were prepared

2 to call, you were able to identify other episodes where either

3 there was traumatic injury, things that would have affected

4 childhood development, instances evidencing mental health

5 problems, and then culminating in the drug issue as being a

6 tipping point. Not just all of a sudden he became crazy

7 because of the drugs, he had 1ssues --

8 A Right.

9 Q -- leading up to that?
10 A There was many times during his life that he was an
11 alcoholic. so he was self-medicating with alcohol. Then he

12 would leave alcohol. Then he did some drugs. Then he would

13 leave the drugs. Then he would do different things like that.
14 And then he went to Dr. Delcher and then he was prescribed

15 medicine.
16 so it was -- it was not that he was not having
17 1ssues the whole entire way, but he was self-medicating with
18 alcohol. He was self-medicating with other things along the
19 way, even all the way to very young, young.
20 Q when you learned of Mr. Friedman's intention to
21 streamline and not call the lay witnesses or Dr. Delcher, what
22 was your response? what did you do?

23 A I think that the moment that that happened, that was

24 the end for me. Because I had already expressed my concerns
25 to Nancy Daniels, not only in December but also prior to that.

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1 I had mentioned, there's issues go1ng on here, you need to do

2 something about this. In December when I sent the letter to

3 her, Nancy's response to me was, we'll fix it after the trial.

4 And I said, well, that's too late.

5 Q Speaking of issues related to self-medication, did

6 you make any observations with respect to Ms. Suber in terms

7 of her consumption of alcohol or usage of drugs? Did you

8 personally observe anything?

9 A During the Hilton time, I did not have personal

10 knowledge of her drinking. I have seen her in other cases
11 when she was in front of me. But during the Hilton, I did not

12 socialize with her anymore after that other case, and so we

13 were just work -- co-workers.
14 Q were there professional express1ons 1n the office of

15 concern about her behaviors and any self-medicating during the

16 Hilton case?
17 A Yes. There were times that she would take xanax, or

18 whatever it is that she was taking, in her office. But the

19 odd behavior came after she left the office, that she went

20 home and usually were 10:00 at night, 11:00 at night, these

21 e-mails that were horrific.

22 It got to a place -- I mean, when you rece1ve these

23 e-mails in the middle of the night and they are so odd and so

24 insulting in many ways, it got to a point that my husband

25 said, do not answer this woman anymore. Do not look at her

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1 e-mails anymore at night; do not.

2 Q were the e-mails always directed to your office

3 account or were there circumstances that they were directed to

4 personal accounts or text messages?

5 A They're both.

6 Q so not all of the e-mails that are in the public

7 defender's system are reflective of the correspondence that

8 Ms. Suber was sending out?

9 A No.

10 Q so personal e-mails, text messages would have been

11 used 1n addition?

12 A Yes.
13 Q okay. so this was the breaking point, this was the
14 end when you learned that this was not going to happen.

15 Explain what your reaction was and what your actions were.
16 A well, the way that I looked at it is that if you
17 make a choice to work these kinds of cases where you have the
18 life of someone at your control --not-- maybe not control,
19 but you have the responsibility for this.
20 And so I had probably the worst decision I've ever
21 had to make. I mean, I had been at the Public Defender's
22 office for 14-and-a-half years. I had a family, I had kids, I
23 had you know, I needed the benefits, I needed all of that.
24 But then I have this man that 1s going to face death.
25 And now it's not up to me, death or not, it's up to

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1 the jurors. And that's the law. But I believe as a

2 mitigation specialist that the jurors need to be informed

3 before they make that decision.

4 Q Based on the fact that they weren't go1ng to be

5 informed

6 A Right.
7 Q -- I understand your rationale --

8 A Exactly.

9 Q -- what did you do though?

10 A I went home and I prayed. And then --

11 Q was Mr. Thomas's recitation of his interaction with

12 you an accurate one?

13 A A little bit.
14 Q Tell us your perspective.

15 A On Monday morning, I sent a message --

16 Q And excuse me for interrupting. was the penalty
17 phase going to start on Monday morning?
18 A Yes.
19 Q so on Monday morn1ng you sent a message?

20 A I sent a message say1ng, I quit, I will not be

21 testifying. I received -- I sent that to Nancy. I received a
22 call back from Nancy saying, you have to testify, we need you;
23 this 1s very important, you have to say this.
24 And I said, Nancy, if I testify, if I say anything
25 about this mitigation, when the appellate court gets this

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1 case, they're go1ng to say, they heard it. And so then all of
2 this mess that occurred could possibly be ignored. And so

3 this needed to be done because they're not going to get the

4 full picture. They were going to get a very, very short

5 vers1on of really what his life was like.

6 so then to me I had a choice. And so she said to

7 me, you need to come. And I said, I will not come. And she
8 says, well, you need to come because you have to, whatever.
9 And I said, I'm sorry, you have not subpoenaed me to come.
10 Q so at that point you had resigned?
11 A No, I had not resigned. I just said, I'm not

12 com1ng. And she says, well, you have to come. And I said,
13 I'm sorry, you have not subpoenaed me to come, I am not
14 com1ng.

15 And so then she goes on to say to me, okay, if you

16 do not -- then she gets all -- she gets Ines, Paula, Rob, and
17 I guess herself 1n an office and they call me. And they
18 said -- and she didn't tell me that everybody was there, but
19 later I learned that everybody was there. They said, if you
20 don't come, I will make your reputation horrible. You will
21 never work in Leon county ever again.
22 And I said, Nancy, you do what you have to do; I do
23 what I have to do.

24 Q Ultimately you resigned or were you terminated?

25 A No, it was set that way. I gave back my laptop. I

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1 left it downstairs with the bailiff. I took off to

2 Jacksonville so they couldn't find me anywhere. so I have no

3 clue what happened in the case. And then I came back. The

4 penalty was done, it was unanimous for death. I came -- I

5 went to the office so I could get my stuff out of my office.
6 And I said, I need Nancy Daniels so I can have somebody
7 accompany me to get my stuff. And she said, you go get it
8 yourself, it's fine. so she trusted me to go get my stuff. I
9 got all my stuff out.
10 And then I met with the local administrator, HR
11 person at the Public Defender's office. Nancy came into the

12 room and said, Betty, I can fire you so you can get
13 unemployment. And I said, Nancy -- (Witness 1s crying)
14 sorry, I don't need your money; I will quit. And so I did.

15 Because I believe that if you're going to work a

16 death penalty case, you have to do it well. Because,
17 otherwise, there is no difference between us and the person
18 who kills. None. we are the same. And I'm sorry.
19 MR. MORRIS: Tender the witness, Judge.
20 THE COURT: Cross.
21 CROSS EXAMINATION
22 BY MS. (APPLEMAN:

23 Q This was obviously a matter that personally impacted

24 you?

25 A Yes.

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1 Q I mean, you had a lot invested into the case and the
2 mitigation in the case?

3 A I had.

4 Q And when you learned that the mitigation and all the

5 hours that you spent was not going to be presented in the way

6 that you had planned and worked so hard to prepare, you were
7 angry?

8 A It wasn't that I planned it; it was how the team

9 planned it, Ines.

10 Q okay. But the decision maker on that team for that
11 purpose was Rob Friedman?

12 A At the end, yes.

13 Q Not you?
14 A Right.

15 Q And that was -- at the end 1s when it's important

16 because that's who's going to decide what evidence 1s

17 presented and how it's going to be presented?
18 A Right.
19 Q And you talked a little bit about your training and
20 education. well, you talked about training but not as much
21 about education. what is your educational background?

22 A I have a degree in Fine Arts and an AS in paralegal

23 studies.

24 Q Any post graduate degrees?

25 A No.

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1 Q You talked about you went with Ines to the first

2 meeting in Georgia with Mr. Hilton. And his behavior has been

3 described as bizarre. can you tell us a little bit more

4 about -- you said he told you everything. what did he tell

5 you?

6 A Do you want to know?

7 Q Yeah.

8 A okay. He said that he was 1n the forest and she

9 came into the forest -- to the park, to the sinkhole area.
10 she was sitting on a bench. And when she was sitting on a
11 bench, she was writing in her journal. He came to her, he got

12 her, he dragged her into his van. Then he went and he moved
13 her car to be on Capital circle Northwest or southwest.
14 He took her into the woods, he took his -- her ATM

15 card. she gave him the PIN number. At first, it didn't work
16 and then she gave him the PIN numbers. she was still alive.
17 He talked to her for a couple of days there.
18 This is really difficult. I haven't mentioned this
19 story. so -- okay, so he took her and she sat there and she
20 talked to him. And she tried to get him to come to christ.
21 And after he decided that he didn't need her
22 anymore, he did something that was very different than any of
23 the other cases. He came from behind her and she did not
24 know, but he shot her in the back of her head. And she didn't
25 know when it was com1ng.

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1 Q was she sexually assaulted during the two days?

2 A She was sexually assaulted after the fact, after

3 after she was dead.

4 And so when he told us this story, the way he was,

5 he was very, very high, very manic. And I was writing this

6 information down and I said to him, be nice. And he said to

7 me -- he stormed out of his chair, stormed out of his chair,

8 and said to me, don't you ever tell me to be nice. Everybody

9 has ever told me to be nice. And so I backed off and I said,

10 I got it; sit down. And he sat down.
11 And then we went on through the whole entire thing.

12 And when we were done with this interview, we were standing.

13 And I stood 1n front of him and I said to him, don't you ever
14 tell me not to feel because if I don't feel, you will die.

15 And he said, okay, you can feel.

16 Q And you say he was manic. Did he describe being
17 under the influence of anything at that time?
18 A He was I believe in withdrawals.
19 Q Did he describe being under the influence of

20 anything at the time he committed the murders?

21 A (Indicates negatively.)

22 Q In that initial meeting?

23 A I don't remember that.

24 Q You say you met with Mr. Hilton on some occas1ons

25 where Ms. Suber was present as well?

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1 A Yes.
2 Q And today on direct, you said there was no

3 discussion of strategy. But my understanding of your

4 testimony previously was that there was more than one

5 conversation that you were present for between Ms. Suber and
6 Mr. Hilton in which he was extremely adamant that he wanted
7 her to fight everything?

8 A Right. And I think that the way that I look at

9 strategy 1s when you have two or more things that you can
10 compare to. This was just one sided. so to me that's just
11 one sided.

12 Q well, assum1ng that fighting everything and not

13 conceding guilt is a strategy, that was discussed between
14 Ms. Suber and Mr. Hilton; correct?

15 A Yes.

16 Q And Mr. Hilton was on board with that?

17 A Yes.
18 Q How many slides did you say the PowerPoint was?
19 A 185.

20 Q And you met with him weekly or better for what

21 period of time?

22 A From the start. Ever s1nce he got to Florida, I met

23 him weekly. At first, the office did not have the video
24 jail video things. we had to actually go see him. so I would
25 spend two, three hours with him at a time.

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1 Q Did he ever physically threaten you other than what

2 you've described?

3 A No.

4 Q You discussed traveling out of town for that initial

5 meeting. Did you travel anywhere else in conjunction with
6 your investigation of the mitigation?
7 A Yes, I traveled to Tampa. I traveled to -- I think
8 I did five trips to Atlanta.

9 Q Five trips to Atlanta?

10 A Yes. And I might have gone some other places 1n
11 Florida, but mostly they were Atlanta.

12 Q okay. And the witnesses that you listed on direct

13 as being the ones that you felt were most essential, do you
14 know how many of those witnesses were called in this case?

15 A No, ma'am, I was not here.

16 Q And you haven't reviewed the transcript of the
17 proceeding?
18 A I have not.
19 Q After you had that conversation with Mr. Friedman
20 and learned that he did not plan to call Dr. Delcher, was
21 there ever a time where you had a calmer conversation with him
22 to discuss what it was that his plan was and what his
23 reasoning was for making that decision and how he intended to
24 present the mitigation in that case?
25 A By that time, I had tried so many things, it was too

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1 late. Because he had already canceled the subpoena.

2 Q For who?

3 A For Delcher.

4 Q All right. I want to ask you specifically about

5 Delcher. You interviewed Dr. Delcher?
6 A Yes.
7 Q And did you -- did Dr. Delcher tell you that he felt

8 Hilton was dangerous?

9 A Yes.
10 Q could you tell us a little more about the context of
11 what Dr. Delcher told you in reference to that?

12 A when he said that to me -- and, aga1n, this has been

13 such a long time ago, but what I believe that this
14 conversation was about was that when he would come into his

15 office, that he felt -- he was so man1c that he would be

16 afraid.
17 Q Delcher was afraid of Hilton?

18 A of Hilton.
19 Q And you made record of this conversation 1n the form

20 of a memo; correct?
21 A Yes.

22 Q And have you had an opportunity to rev1ew that

23 portion of the memo?

24 A Yes, with you.

25 Q And so that memo would have been completed on or

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1 about the time that you conducted the interview with --

2 A Pretty quickly after.

3 Q with Delcher? okay. And in the memo it says

4 that Delcher told you Hilton was dangerous, he felt that he

5 was not 100 percent safe around Hilton, and that he was

6 shocked by his -- this isn't a quote, but his anger or rage,

7 fits of rage, especially toward his dog. He observed a couple

8 fits of rage toward his dog?

9 A Yes. This interview was conducted in front of his

10 attorney as well. There was an attorney present.
11 Q okay. I want to ask you a little bit about your

12 efforts to obtain records in this case. You talked a little

13 bit about it, but can you g1ve us an overv1ew of what efforts
14 were made to obtain records for mitigation?

15 A Most of the records requests were handled by chris.

16 Q okay.
17 A I would tell chris, hey, chris, we need this and he
18 would go and get them. Sometimes I would get them, depending

19 if I was in the city. Let's say if I was 1n Georgia or

20 something like that, then I would be the one getting that.

21 Q All right. Anything else that you did in reference

22 to the mitigation that you have not already talked about?

23 A I think we have covered quite a bit of it.

24 Q And did you talked about investigating over 300

25 witnesses just in reference to the mitigation in this case.

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1 Did that include all the folks on the little three by five
2 cards that you found 1n his stuff?

3 A That includes them, yes.

4 Q Do you feel that you did a thorough job

5 investigating the mitigation in this case?

6 A I tried.
7 Q Did you learn during the course of your

8 investigation that the defendant's biological father was

9 killed by his wife?

10 A Yes.
11 Q And how did you learn that information?

12 A His mother told me 1n one of the interviews that I

13 had with his mother.
14 Q Did you find any additional information 1n reference

15 to that event?

16 A I might have found some newspaper article, but I'm

17 not sure.
18 Q when was --

19 A I don't remember.
20 Q -- the dad killed by the wife?

21 A I don't remember the year exactly.

22 Q Does 1971 sound correct?
23 A That sounds fine.
24 Q It does sound correct?
25 A Yes.

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1 Q was your client aware that his biological father had

2 been killed?

3 A They were not 1n communication with each other,

4 unless his mother told him.

5 Q so how old you don't really recall when the dad

6 was killed, but does it sound right that your client would
7 have been in his 20s when the dad was killed? He wasn't a
8 child?

9 A He was not a child, no.

10 Q And it had been since he was about two years old
11 that he had any contact with the father whatsoever; correct?

12 A Right.
13 Q Did Mr. Hilton tell you that he was molested or
14 sexually involved with an attorney who was representing him?

15 A Yes.

16 Q All right. And was that -- I've read a couple

17 different things; that that was the attorney in reference to

18 the shooting of the stepfather, and then I read that it was
19 for a vagrancy -- that that was an attorney representing him
20 on a juvenile vagrancy charge. Do you know which it was?
21 A I don't know which one. I don't remember now. But
22 it was the attorney that was assigned to him. I don't think
23 they had back then the public defender system that they have
24 now, that it's the public defender. I think it was attorneys
25 that were assigned.

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1 Q But it was a court-appointed attorney and Mr. Hilton

2 was a juvenile at the time?

3 A Yes.

4 Q Did you do anything additional to follow-up on that

5 allegation?

6 A Yes.
7 Q what did you do?

8 A I went looking for that lawyer but the lawyer had

9 died, if I'm not mistaken.
10 MS. CAPPLEMAN: One moment, please, Judge.
11 THE COURT: You may.

12 (Attorneys confer.)
13 MS. CAPPLEMAN: No further questions.
14 THE COURT: Redirect.

15 REDIRECT EXAMINATION
16 BY MR. MORRIS:
17 Q Ms. Fuentes, were any of the witnesses that you were
18 prepared to recommend be called or that you had prepared to be
19 called, did they have evidence or information about the fact

20 that Mr. Hilton's biological father had been killed by his

21 wife?

22 A Yes.
23 Q And it 1s not so much Mr. Hilton's knowledge of what
24 his father had done as it would be to demonstrate his father
25 had problems, was abusive, psychological issues, substance

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1 abuse issues, that resulted in his demise and thus would

2 probably have a genetic issue here; correct?

3 A Absolutely.

4 Q That issue wasn't ever presented to the jury?

5 A No. I suggested to the team that that would be

6 added and they said no.
7 Q Mr. Hilton's sexual molestation, Mr. Roy cave was --
8 had knowledge of that also as Mr. Hilton's childhood friend;
9 correct?
10 A Yes.
11 Q The defense did not have any idea to ask Mr. cave

12 those questions because they weren't aware of it; were they?

13 A No.
14 Q Thank you, ma'am.

15 MR. MORRIS: Nothing further.

16 THE COURT: You can step down.

17 THE WITNESS: Thank you, s1 r.
18 THE COURT: Do you want to keep her subject to
19 recall or excuse her?

20 MR. MORRIS: subject to recall, Judge.

21 THE COURT: All right. You've got a number for her,

22 I assume.

23 MR. MORRIS: Yes, I do, Judge.

24 THE COURT: All right. would it be a good time to

25 break?

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1 MR. MORRIS: I think it would be excellent, Judge.

2 My stomach is telling me so.

3 THE COURT: Do you all want to start back at 8:30 or

4 9:00?

5 MR. MORRIS: I'm go1ng to ask for 9:00, Judge, just

6 because that's what I've told all the witnesses.

7 THE COURT: All right. I talked to Mr. Fansler

8 about trying to help y'all with your video, but I guess

9 it's not just a matter of we can -- we have different

10 laptops with different operating systems here, but I
11 guess the problem is going to be you've got the witnesses

12 with the same operating system that's in your laptop,

13 which is not what the court has.
14 MR. MORRIS: I try to keep current with technology,

15 Judge. I can't keep up with the court system.

16 THE COURT: But if it worked, it would be better.

17 (Laughter.)

18 MR. MORRIS: I understand. I understand, Judge.

19 THE COURT: so I guess we're just going to have to

20 kind of muddle through using the combination of your

21 laptop for the video and the phone for communication,

22 unless you know how to fix that.

23 MR. MORRIS: we've got a little bit different

24 platform that we're going to be utilizing tomorrow that

25 may have the -- and the two that we did today were on the

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1 same platform. The software platform that we're

2 utilizing tomorrow is a little bit different. I'm go1ng

3 to do my level best to make sure that I'm organized for

4 you, Judge.

5 THE COURT: okay. so you don't want any assistance

6 from Mr. Fansler I guess is the bottom line.

7 MR. MORRIS: Mr. Lanasa has been in touch with him

8 and the office. we'll do what we've got to do to make

9 sure that we don't have glitches. I'd invite all the

10 help that I can get.
11 THE COURT: well, I mean, it would be asking him to

12 work after hours, I guess, at this point in time. so

13 anyway.
14 MR. LANASA: Your Honor, for what it's worth, I was

15 1n here with Mr. Fansler on Friday testing the equipment,

16 thought we had it all ready to go. And we also went

17 through with several test runs with the AV equipment with
18 the providers. And my apologies for any issues.
19 THE COURT: All right. well, I'll let y'all work on

20 that. 9:00 suit the State all right?

21 MS. (APPLEMAN: Yes, sir.

22 THE COURT: All right. we'll commence at 9:00.

23 MR. MORRIS: Thank you, Judge.

24 (Court adjourned at 5:11 p.m.)

25

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1 CERTIFICATE
2 STATE OF FLORIDA:

3 COUNTY OF LEON:

4 I, JULIE L. DOHERTY, Registered Merit Reporter, do

5 hereby certify that the foregoing proceedings were taken
6 before me at the time and place therein designated; that my
7 shorthand notes were thereafter translated under my
8 supervision; and the foregoing pages are a true and correct
9 record of the aforesaid proceedings.
10 I FURTHER CERTIFY that I am not a relative,
11 employee, attorney or counsel of any of the parties, nor

12 relative or employee of such attorney or counsel, or

13 financially interested in the foregoing action.
14

15 DATED this 29th day of November, 2018.

16

17

18
' . ;)lJ
--------~-------~-------------
19

20 JULIE L. DOHERTY, RMR

OFFICIAL COURT REPORTER
21 LEON COUNTY COURTHOUSE
TALLAHASSEE, FLORIDA 32301
22

23
24

25

1276
Filing# 81397703 E-Filed 11/29/2018 02:11:13 PM 267

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

CASE NO.: 2008-CF-697

STATE OF FLORIDA

vs.
GARY MICHAEL HILTON,

Defendant.
____________________ ;

VOLUME II

(Pages 267 - 451)

PROCEEDINGS: EVIDENTIARY HEARING

BEFORE: THE HONORABLE JAMES C. HANKINSON

DATE: october 31, 2018

TIME: Commencing at: 9:00A.M.

Concluding at: 3:10 P.M.

LOCATION: Leon county courthouse

Tallahassee, Florida

REPORTED BY: SUSAN BRYANT, RMR, CRR

Notary Public in and for the
State of Florida at Large

SUSAN BRYANT, RMR, CRR

Official Court Reporter
Leon county courthouse, Room 341
Tallahassee, FL 32301

SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 APPEARANCES

2 REPRESENTING THE STATE:

3 GEORGIA (APPLEMAN, ASSISTANT STATE ATTORNEY

OFFICE OF THE STATE ATTORNEY
4 LEON COUNTY COURTHOUSE
TALLAHASSEE, FLORIDA 32301
5

6 and

7 JENNIFER KEEGAN, ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL
8 PL-01, THE CAPITOL
TALLAHASSEE, FLORIDA 32399-1050
9

10

11 REPRESENTING THE DEFENDANT:

12 ROBERT A. MORRIS, ESQUIRE

911 EAST PARK AVENUE
13 TALLAHASSEE, FLORIDA 32301

14 and

15 LUCAS S. LANASA, ESQUIRE

LANASA LAW FIRM, LLC
16 POST OFFICE BOX 10791
TALLAHASSEE, FLORIDA 32302-2791
17

18
19

20

21

22

23

24

25

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1 INDEX

2 WITNESSES: PAGE:

3 NANCY DANIELS

4 Direct Examination By Mr. Morris 271

cross Examination By Ms. cappleman 307
5 Redirect Examination By Mr. Morris 316
6 CHRISTOPHER ELLRICH

7 Direct Examination By Mr. Morris 324

cross Examination By Ms. cappleman 340
8

9 TRACY RECORD

10 Direct Examination By Mr. Morris 346

cross Examination By Ms. cappleman 359
11

12 MERRIBETH BOHANAN

13 Direct Examination By Mr. Morris 360

cross Examination By Ms. cappleman 402
14
15 JULIE HARTWEIN

16 Direct Examination By Mr. Morris 405

17 STEVEN BEEN

18 Direct Examination By Mr. Morris 431

cross Examination By Ms. cappleman 444
19
20 EX HI B I T S

21 STATE'S: PAGE
No. 2 403
22 DEFENDANT'S:
No. v 402
23
24 certificate of Reporter 451
25
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1 PROCEEDINGS
2 THE BAILIFF: All r1se. court 1s now 1n sess1on,
3 the Honorable James c. Hankinson presiding.
4 THE COURT: Be seated, please, folks.
5 we are here 1n State of Florida versus Hilton,
6 2008-CF-697. Let the record reflect Mr. Hilton is
7 present with his attorneys.
8 Are we ready to proceed?
9 MR. MORRIS: We are, Judge.
10 MS. CAPPLEMAN: Yes, Slr.
11 THE COURT: You may call your first witness.
12 MR. MORRIS: Defense would call Nancy Daniels.
13 THE COURT: If you would face the clerk and be
14 sworn, please.
15 whereupon,
16 NANCY DANIELS
17 was called as a witness, having been first duly sworn, was
18 examined and testified as follows:
19 THE COURT: Have a seat. slide up to the
20 microphone, Ms. Daniels. And for your edification,
21 yesterday we've already covered that attorney/client
22 privilege has been waived, so I would ask that you answer
23 any relevant questions.
24 THE WITNESS: Okay.
25 DIRECT EXAMINATION
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1 BY MR. MORRIS:
2 Q can you state your name for the record, please.
3 A Nancy Daniels.
4 Q And can I ask you to spell your last name.
5 A D-a-n-i-e-1-s.
6 Q All right. Ms. Daniels, I know what -- what you do
7 presently, but what do you do for a living?
8 A I am a lawyer, and I was a lawyer 1n the Public
9 Defender's office and the elected Public Defender until
10 January of 2017.
11 Q okay. when did you first become the elected Public
12 Defender here in the Second Judicial circuit?
13 A November 13th, 1990.
14 Q so 1990 to 2017?
15 A Right.
16 Q I want to talk to you a little bit about the
17 evolution of what I'll refer to as the capital unit or how
18 capital cases were handled within the office. And let's start
19 back when Mr. Murrell would have been employed 1n your office
20 before he went to the federal defender's office.
21 Just pr1or to Mr. Murrell having left the office,
22 what was the general structure of how capital cases were
23 handled within the office of the Public Defender?
24 A They were assigned on a rotating basis to the felony
25 attorneys.
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1 Q So your most sen1or attorneys -- if a case comes 1n

2 that appears that it's going to have death penalty overtones,
3 you're going to have your attorneys on a wheel of sorts, and
4 they're going to be assigned on a rotating basis so as not to
5 mire one attorney with all of them or any one division or
6 something like that?
7 A That's right.
8 Q And, obviously, 1n particular from the defense
9 perspective, death penalty cases have changed a great deal 1n
10 terms of how we are expected to address them. But what, if
11 anything, was done then for support or second chair, or was it
12 all on the attorney? what -- what happened?
13 A well, when I became the Public Defender, Randy
14 Murrell did most of the murder cases. In fact, he was 1n the
15 middle of one when I took office, Donald Dilbeck.
16 As we started having more and more capital cases, it
17 became obvious that he couldn't do them all, so-- and the
18 rotation system didn't work very well because the lawyers had
19 other cases they were trying to handle at the same time.
20 so eventually we -- we knew that what we needed to
21 do was have a whole unit of lawyers that -- or at least one
22 lawyer that did just capital cases. so, eventually, with some
23 budget adjustments, we did create a Capital unit with just one
24 capital lawyer. And then we eventually, as time went by, were
25 able to ass1gn a full-time investigator to that unit. And
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1 then 1n later years, a mitigation specialist worked heavily

2 with that unit as well.
3 Q Yes, ma'am. In, let's say '06 and '07, this would
4 be immediately prior to the inception of Mr. Hilton's case,
5 what was the structure that was in place? obviously,
6 Mr. Murrell was gone
7 A Right.
8 Q -- for quite sometime at that point. But what was
9 the structure that was in place that you had implemented
10 within the office?
11 A By that time, we did have a capital unit, and Ines
12 Suber had become the lead capital attorney. we tried to
13 assign a second chair to each case if it was truly looking
14 like it was going to be a capital case, and those second
15 chairs would come from one of the felony divisions or
16 sometimes from the appellate division, but the lead lawyer
17 was was Ines Suber.
18 Q How -- so she was removed from what I'll call the
19 division-- we have divisions here in our circuit or at least
20 here in Leon county; and, typically, you've got a sen1or
21 lawyer in each division.
22 was she then removed from the division and strictly
23 assigned to capital cases in Leon or within the circuit, or
24 how did that work?
25 A she was assigned to all of the capital cases. At
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1 times -- if there weren't a lot of capital cases go1ng at the

2 time, she occasionally would do a life sentence case as well,
3 but she did all murder cases.
4 Q Did she have any responsibility for appellate work
5 at the time? or --
6 A No.
7 Q -- the -- the focus --
8 A No.
9 Q -- was strictly on capital cases with the rare
10 exception of maybe a life case --
11 A Right.
12 Q -- maybe with gr1m overtones or something like that?

13 A Exactly.
14 Q okay. How was the decision made that Ms. Suber
15 should be placed in charge of the capital unit?
16 A she had done just about every kind of job 1n the
17 office. she had been in juvenile. she had been in
18 misdemeanor. she had been in felony, and she had been 1n
19 appeals, and she was a capable attorney.
20 she was very dedicated, organized, and we felt she
21 had the capabilities of taking that job, and she had the
22 interest in it. Not not all attorneys in our office were
23 willing to do capital cases.
24 Q I can't 1mag1ne why.
25 A And she was.
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1 Q Do you know independently whether or not she had the

2 requisite qualifications? And when I say that, I'm talking
3 about the statutory qualifications, the ABA's model
4 prerequisites, and the education or academic background 1n
5 death penalty chases when she came into the unit?
6 A she did not. In fact, the first case she handled
7 that went to trial, we had to have a special hearing in front
8 of the assigned judge to -- there's an exception in those
9 minimum standards. If someone is -- even if they don't meet
10 the exact number of prior trials or prior prior penalty
11 phases, there's still an exception where they can be accepted
12 as -- as lead on a capital case if they have the requisite
13 exper1ence. And there's some language in there that we felt
14 she did qualify for, so we -- we made a motion for her to be
15 accepted as the lead lawyer on that case, and she was
16 accepted.
17 we had affidavits from other lawyers, and I
18 testified and several other attorneys testified at the hearing
19 about her capabilities, and she was accepted.
20 Q Do you know about what year that would have been?
21 It's okay if you don't hit the nail right on the head.
22 A Yeah. I-- I know it was before Mr. Hilton's case
23 came along.
24 Q All right. so Ms. Suber is designated as the first
25 chair. And based on norms and standards, was it your
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1 expectation that she seek out a person who's go1ng to be

2 second chair or co-counsel?
3 A Not necessarily that she seek it out; that we -- we
4 make an office determination of who is in the best position to
5 do it. we try to keep it within the same division that the
6 case was 1n, if possible. But it varied as -- as to who --
7 who would be 1n the best position to do various cases. so --
8 Q Meaning if the case is a Judge Hankinson case, then
9 you are going to try and find a lawyer that is in Judge
10 Hankinson's division on a routine basis and assign them for
11 various practical reasons, because the lawyer is available on
12 that schedule, et cetera?
13 A Exactly. And if that wasn't possible, which,
14 sometimes it wasn't, we had certain -- certain attorneys that
15 would do it routinely. Paula saunders did some second
16 chairing with Ms. Suber. Rob Friedman did some second
17 chairing with Ms. Suber and some of the other attorneys.
18 And so for this case, when it came along, we -- we
19 thought that Ms. Suber and Rob Friedman had worked well
20 together. He -- he volunteered to do the penalty phase, and
21 so he was -- he was placed on the case.
22 Q okay. And-- well, I'll come back to Mr. Friedman
23 1n a moment. But from a chronological perspective, our
24 general understanding 1s that the initial second chair was
25 Steve Been. The next second chair would have been Tracy
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1 Record. The next second chair would have been Nicole

2 Jamieson. The next second chair, I believe, would have been
3 Mr. Friedman, actually.
4 A Merribeth Bohanan was --
5 Q You're correct, Ms. Bohanan would have preceded
6 Mr. Friedman, but she would have stayed in contact with the
7 case. But what is --
8 A The second trial chair was all those people that you
9 just mentioned, but Mr. Friedman was the penalty -- designated
10 as the penalty-phase attorney.
11 Q And that's what I wanted to get to. we've had a
12 little bit of difficulty 1n defining second chair. what 1s
13 what is your definition, or what was your expectation 1n the
14 office that Ms. Suber do as head of the capital unit? And
15 what was the role of the person who's, quote, second chair,
16 end quote?
17 A In this case I thought Ms. -- my -- my understanding
18 of it was that Ms. Suber was the lead attorney for the guilt
19 phase of the case and was working in conjunction with
20 Mr. Friedman as the -- as the lead attorney for the penalty
21 phase.
22 Q well, back up even before that. If you and I are
23 handling the capital case and you're the lead attorney, 1n
24 Ms. Suber's rule, and I come into the case because I'm in the
25 division and I'm second chair, what's the expectation? who is
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1 the --what's the second chair doing? who are they reporting
2 to? what are their responsibilities? How are those defined?
3 A The lead decides what tasks are delegated to the
4 second chair.
5 Q so Ms. Suber, in this circumstance, irrespective of
6 who the second chair was, until we get to Mr. Friedman,
7 irrespective of who the second chair was, Ms. Suber would have
8 been responsible for delegating whatever needed to be done;
9 and she would have controlled the decision making, if you
10 will?
11 A Yes. This case, I think, was somewhat different in
12 that from the beginning we designated a lawyer for the penalty
13 phase, and and Rob Friedman took the lead role on that.
14 But it was certainly in conjunction with Ms. Suber. But I
15 I don't have a -- a strong notion that he was subservient to
16 her, if you want to put it that way, or that she was over him
17 in what decision would -- would be made.
18 It was more as trying to be a team -- a team
19 decision-making effort, and we had a lot of team meetings that
20 I attended a lot of. And we tried to make decisions
21 collaboratively without a real hierarchical structure, if you
22 want to put it that way.
23 Q where --when Mr. Hilton's case arose, was it your
24 understanding that Mr. Friedman was initially assigned along
25 with Ines? or did Mr. Friedman come later on in time?
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1 A My memory of it 1s that he came early on 1n the

2 case, if not right at the beginning, and -- and was --
3 Q okay.
4 A -- responsible for developing the penalty phase.
5 Q And so there --assuming that that's the
6 chronological circumstance, Ms. Suber would have been lead
7 counsel, responsible for guilt phase. Mr. Friedman would have
8 been second chair, but responsible for penalty phase. And the
9 two of them would be responsible for interacting with one
10 another to figure out strategically what to do?
11 A Yes.
12 Q okay. Describe for me what problems arose in the
13 course of Mr. Hilton's case. And there are certainly more
14 than one, and we may need to kind of parse them out a little.
15 A There were numerous problems. First was because of
16 the enormity of the case and the high-profile nature of it, I

17 think there were over 200 witnesses listed 1n discovery and

18 lots of forensic evidence, we felt like we needed more -- more
19 attorney help on it. so, you know, we needed a second chair
20 that was going to do some tasks for the guilt phase under
21 Ms. Suber's direction, as well as another attorney, in this
22 case Mr. Friedman, working on the penalty phase.
23 So as you noted earlier, there was a success1on of
24 attorneys serv1ng as that second chair for the guilt phase.
25 Steve Been, early on, indicated that he couldn't -- couldn't
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1 continue 1n that role.

2 Q was there any particular reason that Mr. Been
3 couldn't continue in the role?
4 A what it amounted to was that he and Ms. Suber had
5 different ideas about how to handle the case, and he just
6 didn't feel like he could stay in the role of second chair.
7 Q Maybe more pointedly described, Mr. Been's

A Right.
Q okay. So a replacement has to be found, I assume?
A Right.
Q And do you recollect who the replacement was?
A well, I don't -- I don't remember who came 1n what

21 Q And then some 12 to 18 months later Ms. Record came

22 to you, and there was a similar express1on to Mr. Been's, the
23 relationship was untenable, and she needed to be reassigned?
24 A Right. The pressure of the case and the -- the way
25 things were developing, she just couldn't continue. so I -- I

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1 think Nicole Jamieson was next, but hers was very short,
2 short-term.
3 Q That may have been -- and I'm speculating here --
4 that may have been a result of her having left the office and
5 relocating --
6 A Yes.
7 Q -- to a different city?

8 A Right. Right. so then Merribeth Bohanan came into

9 the picture, and she was a more experienced felony attorney,
10 and she personally had a -- a good relationship with
11 Ms. Suber, so we put her into that role. And -- and I
12 don't -- I don't know how long the totality of that was, but
13 she was 1n the-- the case when it went to trial.
14 But then much later in the case, because of just the
15 ongo1ng feeling that we needed more help with the case, I
16 asked Paula saunders to join the team and she did.
17 Q okay. And let's talk about that because we're--
18 we're now right at the doorstep of-- of trial essentially.
19 The case went to trial in early 2011, and there
20 were -- Ms. saunders had been assigned somewhere around
21 November of 2010, so with about two and a half to three months
22 to spare before trial.
23 what was happening, based on your observation and
24 communications to you or with you, what was happening amongst
25 the defense team that necessitated bringing Ms. saunders into
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1 the case?
2 A The ma1n 1ssue was there was just more work that had
3 to be done. There was depositions that hadn't been taken.
4 There were forensic matters that hadn't been fully
5 investigated yet. And ...
6 Q And let me ask you about that. obviously, you are
7 1n a management-of-people environment. was that the result of
8 work just simply having not been done and procrastination,
9 essentially; or had work been getting done?
10 A well, a lot of work had been done. There was a lot
11 of work to do. I don't -- I don't have a way of judging
12 whether there was procrastination. You know, Ms. Suber was 1n
13 the office every day working. she did have other case
14 responsibilities on some other ongo1ng cases at the -- at the
15 time.
16 Q Tell me about that. In terms of -- how many cases
17 was she assigned? And I don't know if you know a number, but
18 if you can --
19 A I don't.
20 Q -- quantify it 1n terms of a great number, too many,

21 just right, or not quite enough? Are you --

22 A well, it was always too many. I mean, a capital
23 attorney 1s only supposed to be handling three attorneys -- I
24 mean, three capital cases a year under the standards. But we
25 always worry about that. I don't know how many other cases
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1 she had pr1mary responsibility for at that time, but there

2 were some that were at different stages, and so I know she had
3 other work to do.
4 Q And when we talk about standards, those are
5 aspirational standards in the sense of that's the way it
6 should be in the ideal world; but because of budget
7 constraints and things of that nature, you -- you don't have
8 the luxury of hiring four or five additional attorneys to--
9 to handle those cases; is that --
10 A Exactly right.
11 Q okay.
12 A So we were always above --
13 Q Not only --
14 A our standards.
15 Q do you manage people, you have to manage a
16 budget?
17 A Right.
18 Q That sometimes 1s confiscatory, I guess.
19 A uh-huh.
20 Q okay. so how 1s it brought to your attention that
21 there 1s too much or there's --there's a lot still to be
22 done, and we need to insert Ms. saunders into the case?
23 A well, as I mentioned, we-- we had regular meetings.
24 we had 1n our conference room, all the team members would
25 get together from time to time. I was actually pushing that
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1 idea. I mean, I wanted to be kept -- present to date on

2 everything --
3 Q so it would be yourself, Ms. Suber, Mr. Ellrich, Ms.
4 Fuentes and then Mr. Friedman and then whatever other lawyer
5 was involved in the case --
6 A Right.
7 Q -- that would have these meetings?

8 A Yes. And
9 Q And so --
10 A I was -- I was kind of trying to say, "where are we
11 on this? what -- what are we doing on this?" I would have,
12 you know, individual conversations with various members of the
13 teams as well, too, along the way. But we would have those
14 meetings, and I was getting the distinct feeling from those
15 meetings that we needed -- we needed more help.
16 I kept hearing, "we haven't taken this deposition
17 yet." Then at the next meeting, "we haven't taken this
18 deposition yet." And it was like, "well, what do we need to
19 do to get this work done? Do we just need another lawyer here
20 or what?"
21 so that's -- that was the background for me calling
22 Ms. saunders into the case. Plus, Ms. saunders and Ms. Suber
23 had worked well together on prev1ous cases. And so because
24 there had been this constant turnover of other attorneys, I

25 thought she would be a stabilizing force in the -- in the

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1 case. And she's a worker bee herself, and I thought, well,

2 you know, she can get in there and get -- get this work done
3 and maybe bring more harmony to this thing because there,
4 obviously, hadn't been --
5 Q where -- where did you get the impression that there
6 was disharmony or discord or that Ms. Suber was -- that you
7 needed somebody to bridge a gap or or that they needed to
8 have a good relationship? How did you get that impression?
9 A well, from the constant turnover of lawyers for one
10 thing. I mean, Ms. Suber was -- I don't think anybody would
11 question --a very capable attorney. But she's a high-strung
12 personality, and she gets very nervous when --when she's
13 under pressure and when big trials are com1ng up. And so she
14 had been -- she had been hard to get along with, and so all
15 these attorneys had -- had -- had left. And then in the
16 meetings there were some differences expressed about what
17 strategy was being used and --
18 Q Talk to me about that. what were the differences
19 and what -- what was the discussion about?
20 A well, Ms. Fuentes was developing a lot of
21 information during her mitigation investigation about
22 Mr. Hilton's background, some mental --mental issues and some
23 medication issues with Ritalin and being over prescribed
24 Ritalin, and the effect that had had on him. And some people
25 thought that was the very best part of what we were
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1 discovering in the defense role to focus on and -- and key

2 into a defense strategy.
3 Q were there -- were there discussions specific 1n
4 those roundtable conversations of how to make the guilt phase
5 and the penalty phase work together?
6 A There were -- there were conversations about that,
7 and and we know that's always tough in a-- in a case where
8 there's lots of evidence on the guilt side. To bring together
9 a strategy that puts you 1n a good faith -- a good position
10 for the penalty phase 1n case you lose the guilt phase, that's
11 always challenging.
12 But this one was -- was more so because there was
13 that one part of the penalty investigation that seemed very,
14 very important. And but Ms. Suber's strong belief was that
15 we -- we needed to have a full -- full-out guilt phase where
16 every every bit of the evidence was contested, and that
17 then Mr. Friedman would handle the penalty phase and just go
18 into go into those mitigation issues.
19 I don't think we ever were able to -- it was
20 discussed at the roundtable sessions, but I don't think we
21 ever figured out a good way to blend the mitigation
22 information well into the -- the guilt phase.
23 Q what was your impression of where Ms. Suber -- why
24 Ms. Suber had the belief that everything needed to be
25 challenged in the guilt phase?
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1 A well, I -- I think that was her general philosophy

2 of -- of how to handle a capital case, was --
3 Q Did she ever indicate to you whether or not she had
4 discussed different alternatives or options with Mr. Hilton?
5 A I remember asking that question in some of the
6 meetings, "where -- where is Mr. Hilton on this? Does he
7 have we gone over all this evidence with him? Does he know
8 exactly where we stand?" You know, "Does he know about
9 this -- this mitigation information that we think 1s -- really
10 should be a prominent part of it?"
11 And my impression is that he -- he endorsed her
12 strategy of contesting everything. I never talked to him
13 myself to ask that question, and --
14 Q You weren't -- you didn't ask direct questions of
15 what discussions have you had, but you said that your
16 impression is that Mr. Hilton endorsed it?
17 A Right. But I don't-- you're right, I didn't ask
18 point-blank, have you -- have you asked him if he -- if agrees
19 with your strategy.
20 Q In a case like this -- let me see if you agree
21 that there are three things that I can think of to do in the
22 guilt phase.
23 One 1S scorched earth, deny everything, demand
24 strict proof, object to everything that you can.
25 The second alternative is the client has the option
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1 of entering a guilty plea to first-degree murder and then

2 proceeding to a penalty phase. And, obviously, lawyers in
3 your office, I believe, had done that. It may have preceded
4 when you became the Public Defender, I think the Nixon case,
5 may have been one of them.
6 A we didn't do that at all, ever, under my time.
7 Q okay. And then the third alternative that I can
8 think of 1s: Yes, we're going to have a guilt phase, but
9 let's go easy on the objection stuff because we know what the
10 end is probably going to look like, and we need to maintain
11 our credibility for the penalty phase.
12 A Right.
13 Q Do you know whether or not those options were
14 conveyed to Mr. Hilton?
15 A I don't.
16 Q okay. YOU would have been relying upon the lawyers
17 who were handling the case to do their job and to communicate
18 with the client?
19 A Yes.
20 Q would you consider yourself a m1cro manager of your
21 lawyers? or are they given freedom to be creative, police
22 themselves, follow the rules, both ethically, professionally,
23 et cetera? How do you characterize your management style, I
24 guess?
25 A I'm not a m1cro manager. I always gave great
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1 deference to our attorneys, especially our experienced

2 attorneys, and I did -- did so in this case.
3 Q so Ms. saunders gets brought 1n. we're having these
4 roundtable discussions. There's -- to your recollection
5 there's never really a strategy hammered out, if you will. we
6 know that Ms. Suber wants to pursue testing all of the
7 evidence. And we know that Ms. Fuentes is helping to prepare
8 mitigation, and then that there 1s a focal point with respect
9 to medications that Mr. Hilton was taking?
10 A Right.
11 Q okay. In the 60 to 90 days there were a --
12 preceding the trial, there were a flurry of motions to
13 continue that were filed and emergency motions. There was
14 e-mail correspondence and communication to you about things
15 are not well on the defense team, and this isn't working out.
16 Tell me what was going on internally and what you
17 were trying to do to manage the problems internally.
18 A well, as we got closer to the -- I think it was a
19 January trial date Ms. Suber made it really clear that she
20 wanted to get a continuance. she wasn't -- didn't feel like
21 she was prepared, and --
22 Q was it strictly isolated to her lack of preparation,
23 or did she have a motivation for personal reasons?
24 A she also did want to take a sabbatical, which she
25 typically took over the holidays. she would, almost every
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1 year, go to Columbia to see her family there during the

2 holiday period and -- and sometimes up to a month, and she
3 wanted to do that. And I was like "No, we have a trial date.
4 we have no idea whether it will be continued; so, no, you
5 can't go this year."
6 Q Ms. Suber -- what was her reaction to you declining
7 on the personal side of things?
8 A very unhappy with me. very, very unhappy.
9 Q Did that -- were her behaviors or responses stable?
10 Erratic? Angry? what were they?
11 A I would say somewhat angry. And I don't know when
12 this started to happen, but there were a couple of late-night
13 e-mails that she sent.
14 Q Describe those for me.
15 A They were long, rambling, wordy, frustrated, blaming
16 people, and, you know
17 Q was that -- was that normal conduct for her
18 historically?
19 A No, no. And that's --that's something, when I'm
20 when I'm looking back on this, I mean, as I said, Ines is a
21 high-strung personality. some of this was was typical of
22 her behavior; but looking back on it, some of it really
23 wasn't. It was more than average signs of of having some
24 troubles and having some distress. I had never -- up until
25 this case, I had never seen such an e-mail from her.
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1 Q Did your employees come to you express1ng concerns

2 about the e-mails?
3 A Yes.
4 Q Those would have been members of the trial team?
5 A Yes.
6 Q were you copied on the e-mails always or no?
7 A well, I think so. I saw several of them.
8 Q And
9 A And I talked to her about it.
10 Q we'll hit on that in a second.
11 Did any of the employees voice concern about her
12 being depressed, anxious, using prescription medications,
13 alcohol, self-medicating because of depression, anxiety, et
14 cetera?
15 A Yes.
16 Q Do you recollect who specifically spoke with you
17 about that?
18 A Paula saunders.
19 Q All right.
20 A And I believe Betty Fuentes.
21 Q Both individuals indicating we think that Ms. Suber
22 has an issue here, and --
23 A Right.
24 Q -- we need to address it 1n some way, shape, or
25 form?
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1 A Yes.
2 Q Let's start with that. How did you deal with that
3 1ssue, that specific component? or were you able to?
4 A well, I was very concerned, and so I -- I -- after
5 the first one that I received, I talked to her. And I said,
6 "Ines, what's going on here? Are you having troubles?" And
7 she she didn't say that she was drinking too much or us1ng
8 any drugs or anything.
9 I said, "well, it sounds like you're -- you're
10 not-- you're up all night, you know, for some reason, and
11 this is -- just doesn't seem like you should be -- you need to
12 rest. You know, and what's going on here? Do we need to get
13 you some help? Do we need to get you into the employee
14 assistance? or do we need to, you know, get you -- get you
15 with your doctor?"
16 And she said, "No. I'm okay. I'm okay. I'm just
17 under pressure; and, you know, I'm not go1ng to get my
18 vacation, so I'm I'm just doing the best I can." And, you
19 know, "I'm okay. I don't-- it's-- it's not like that."
20 And, you know, as far as I could tell, she was still
21 com1ng to work. she was having regular work hours for the
22 most part. But then there was some kind of a hearing that was
23 scheduled where she was late. And, again, I called her in
24 Q Do you know if that -- do you know if that was in
25 front of Judge Lewis or Judge Hankinson?
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1 A I don't. I don't.
2 Q okay.
3 A But I know that, you know, that -- that was one of
4 my really strict rules to the extent I was any kind of micro
5 manager, it was about time and being on time. And I did talk
6 to her about that. "why were you late?"
7 "I just overslept." And, you know, "As soon as I

8 got up, I rushed right here." so-- and she said, "I wasn't
9 that late, and it was -- I wasn't primarily responsible for
10 that hearing anyway." And so I said, "well, don't be late
11 anymore."
12 Q were -- were there other instances of -- of course,
13 it's easy to play Monday-morning quarterback and in hindsight
14 look back. But were there other instances that manifested
15 themselves that gave pause for concern or should have given
16 cause for concern of her being tardy or ill-prepared or not
17 knowing what the subject matter was about? were there other
18 instances?
19 A There was one other thing that got my attention, was
20 an 1ssue came up with a witness who was going to -- I think a
21 jail inmate witness who was going to be a State witness. And
22 the team went into high gear about we've never seen this
23 witness's name before, and it's late discovery.
24 And so, you know, I -- I had occasion to -- to need
25 to look through the file myself. I was -- I was -- it was
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1 late on a -- it was past five on a certain day. And I said,

2 "well, let's just look through the file. Let's look through
3 discovery and see, you know, if it's in there."
4 so I went to where the file -- file was, and the
5 file was a mess. The file was disorganized. It wasn't --
6 there were bits and piece of discovery.
7 I said, "well, who-- 1s there a file that's-- that
8 1s just a coherent file? Not bits and pieces of this one and
9 that one and the other? Is there one file that has all the
10 discovery 1n it? can I please see that that file?"
11 I actually think that on that occas1on, somebody
12 called Ms. Capp l em an and said, "can you just tell us where
13 this is listed in discovery?"
14 And my memory of it 1s that she called back and said
15 it's -- it's in discovery so and so, but I think there was a
16 problem with the name not being just quite right. But having
17 occasion to look at that file and the shape that it was in,
18 and nobody being able to g1ve me a file that was organized and
19 1n proper shape.
20 Q I imagine it had something to do with as simple
21 as you seeing if there's a conflict of interest or something
22 along those lines and what overtones there might be?
23 A Right. I -- I just was shocked that nobody had a
24 file. I mean, we had made -- for every attorney than got into
25 the case, we had made -- at least my information was we had
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1 made a complete file for each attorney that worked on the

2 case. And so when nobody could give me one that -- that
3 looked like a normal file, it was like, come on, people,
4 what's going on here?
5 Q How close were we to trial at that point?
6 A I don't know. I think that was a motion hearing of
7 some kind that was-- was fairly close to the trial, but I
8 don't know.
9 Q so the -- my understanding of the case is we are
10 talking about voluminous discovery. I mean, thousands of
11 pages of discovery; so rather than a file, we're probably
12 talking about banker's boxes full of
13 A oh, yeah, many files. And there were -- there were,
14 and I think it was in Merribeth Bohanan's office, there was
15 three or four big giant boxes of files, but like -- I said,
16 "well , isn't there one that just has the discovery?"
17 Q Your-- your examination of it is there's no rhyme
18 or reason or organizational structure?
19 A Right.
20 Q There wasn't a discovery log for when discovery 1s
21 received? It's not numbered? It's not readily findable?
22 A Exactly. And -- and nobody could point me to a file
23 that
24 Q Anything that you were able to do 1n order to guide
25 them to get on top of that issue? or
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1 A I remember talking to Ms. Suber's legal assistant,

2 Faye Dorn, and asked her, "Faye, can you please make order out
3 of chaos of these files? we need one file that has one
4 organized set of files that -- that somebody can go to and
5 look at and make some sense out of." And she, I think,
6 attempted to do that.
7 Q so we have digressed a little ways. But that was
8 another red flag to you --
9 A uh-huh.
10 Q --that we've got an issue here that's atypical of
11 what Ms. Suber's behavior had been historically?
12 A Right.
13 Q she declined employee assistance, correct?
14 A Yes.
15 Q Do you know whether or not she sought medical
16 treatment on her own? Did she ever disclose, one way or the
17 other, to you?
18 A I had the impression that she had a -- a doctor who
19 prescribed anti-anxiety medicine to her. I -- I think that
20 she either told me or somebody told me that she took -- I

21 think it was an Ativan or a half an Ativan before her closing

22 argument 1n a prev1ous trial.
23 And so I was under the impression from that, that
24 she had a prescription for that and occasionally used it when
25 her anxiety kicked up.
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1 Q And I was go1ng to ask, your assumption was, 1s that

2 that's properly prescribed medication --
3 A Yes.
4 Q --you're taking under a doctor's care?
5 A Right.
6 Q There are plenty of people who walk around in the
7 world that need anti-anxiety medication to function on a
8 normal basis, and there's nothing wrong with that.
9 A Right. That's -- that was my impression of it, that
10 she was 1n a stressful job; and, you know, if she needed that,
11 well, okay. But that's the only time I specifically knew of
12 her taking any medication.
13 Q You weren't privy to whether or not she was
14 taking assuming she was prescribed medication, whether she
15 was taking the right dosage or too many or any at all, though?
16 A Right.
17 Q okay. so Ms. saunders gets brought 1n, and what was
18 her specific assignment?
19 A Her assignment was to do the tasks that still needed
20 to be done to prepare for trial. And I think that involved
21 research projects, review of discovery, preparation of
22 questions for the trial and, you know, miscellaneous tasks
23 as -- as directed by Ms. Suber.
24 Q And was your impression at that point that Ms. Suber
25 and Mr. Friedman were communicating and on the same page or
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1 not?
2 A communicating, yes. Because I know -- I know we had
3 these meetings, and they were both required to be there and
4 talk, so
5 Now, on the same page, looking back on it, it seems
6 like Mr. Friedman was -- was doing the things he felt he
7 needed to do to prepare the penalty. And it wasn't really 1n
8 that close of conjunction with -- with what Ms. Suber was
9 doing for the guilt phase.
10 Q Mr. Friedman's assignment to the penalty phase was
11 not because of his wealth of experience in capital cases 1n
12 trial, it was-- his assignment was primarily because of his
13 prior relationship with Ms. Suber?
14 A Right. He had been second chair on a case with her,
15 and they had worked well together. And he had an interest 1n
16 learning a lot about penalty phase development, so he had
17 volunteered for that.
18 Q so Ms. saunders gets inserted into the environment,
19 and then there's been some discussion about whether you were
20 in town, out of town, conference, Legislature, whatnot, while
21 the trial was actually going on. what are your recollections
22 of what happens when continuance is denied in January, and the
23 case 1s proceeding to trial? what were your interactions with
24 the trial team then?
25 A I know I wasn't gone for all of it, because I know
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1 that people were com1ng 1n 1n to me, into my office after

2 the day of trial and talking to me about it. so I know I had
3 several several of those types of conversations. I may
4 have had a day or day or two where I was busy with other
5 stuff, but for the I would -- my impression is that for the
6 bulk of the trial, I was around.
7 Q And the intimation is not that you were absentee 1n
8 any way or --
9 A No, I didn't get that. But it's possible that there
10 was a legislative meeting or something that occupied me for
11 one or more days of the trial. But I got-- I got a lot of
12 reports about what was go1ng on in the trial.
13 Q what are your recollections of maJor 1ssues that
14 came up with the defense team during the course of trial?
15 A well, during the jury selection, Ms. saunders came
16 1n and talked to me about she -- she didn't feel like
17 Ms. Suber was doing a good job on the jury selection questions
18 and wasn't focused on the right things, wasn't listening well
19 enough to the answers and just wasn't on -- on target for the
20 JUry selection.
21 Q My suspicion 1s, 1s that's kind of water under the
22 bridge to you because it's hard to reshuffle the deck at that
23 point.
24 A Yeah. I -- I -- I look back on it now and say,
25 well, there were red flags, and maybe I should have made a
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1 change before the trial. But at the time I didn't think they
2 were -- I didn't think -- I just couldn't see the feasibility
3 of trying to change the lead attorney at that point.
4 I think my -- my effort was more, g1ve more help,
5 you know, try to be more hands-on-ship here and -- instead of
6 changing -- changing the leadership, just trying to give her
7 more help and support.
8 Q so Ms. saunders indicated that Ms. Suber was under
9 performing or not performing well during the course of JUry
10 selection? what else do you recollect?
11 A well, I remember -- I don't remember anything more
12 on a specific phase of the trial.
13 Q we -- we had some pretty earth-shattering moments at
14 the resignation or the departure of Ms. Fuentes.
15 A Right.
16 Q The -- Ms. Bohanan. Disappointment
17 A Yes.
18 Q -- 1n presentation of penalty phase?

19 A Yes.
20 Q I've got to 1mag1ne that you became involved 1n
21 those issues?
22 A oh, yes. so that -- that is actually -- you know, I
23 would just say I don't remember exactly how long the trial
24 was. I think it was about two weeks; but when the guilt phase
25 was about to end, I had contacted Ms. Fuentes when she decided
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1 that -- and I think this was maybe -- maybe there was a day or
2 two between the guilt phase and the penalty phase. I believe
3 it was in that break where she said, "I'm not going to
4 present-- I'm not going to present my-- my mitigation."
5 Now, we had been working on this -- she had been
6 working on a mitigation PowerPoint for a very long time. she
7 had traveled all over the place. she had talked with dozens,
8 if not hundreds of witnesses. And this was supposed to be the
9 crowning jewel of the-- of the trial, this PowerPoint that
10 she was going to be bringing all this together, and, you know,
11 portraying all the difficulties in Mr. Hilton's childhood and
12 early adult life, and --
13 Q what was her rationale or her explanation for why
14 all of a sudden she's not going to do this?
15 A she just -- she stated that she didn't agree with
16 the way the penalty phase was was going to be done, and she
17 just couldn't be part of it.
18 Q Your response?
19 A My -- my response was, "Betty, that's -- that
20 doesn't make any sense. You -- you can't possibly not do this
21 at this point. This is we have put all this effort into
22 this. You have to do it. You can't just quit at this point.
23 No, you just can't do that."
24 And she was just, "No, I just can't be part of it."
25 I said, "well , listen, Betty, I don't want it to come to this;
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1 but if you don't do it, you're not go1ng to have a job here
2 anymore."
3 And she said, "well, that's fine then. I'm not
4 go1ng to do it." And I said, "Betty, please reconsider that.
5 Please don't do that. This -- this is -- we've got to do
6 this. This is --
7 Q ultimately
8 A -- this is the thing we've got to do to -- to try to
9 help him at this penalty phase.
10 Q ultimately, though, she did not reconsider?
11 A No, she didn't. And I've heard different things
12 about she -- she said she resigned or that she was fired. I
13 think that technically we allowed her to resign, you know, but
14 she -- I mean, she -- she -- her employment ended because she
15 refused, she was insubordinate. I mean, she refused to do
16 what I told her to do.
17 Q Did she provide you with specifics more than, "I'm
18 disappointed with what's going on in the penalty phase"?
19 A If she did, I don't remember them. I -- I don't
20 I just remember she just kept say1ng, "I disagree with the way
21 Rob is going to do the penalty phase, and I just can't be part
22 of it. And I'm not going to be part of him messing this up
23 and II

24 Q I don't think that the circumstance surrounding Ms.

25 Bohanan was quite as extreme, but tell me what your
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1 recollection of that 1s.

2 A well, it's dim. I -- I -- I don't know whether this
3 was one of the days I was busy with other things or exactly
4 what. But I know that Ms. Bohanan had a communication with
5 Mr. Hilton of some kind that people thought was inappropriate
6 and might require us to try to conflict or withdraw from the
7 case.
8 Q I -- I want to -- a conversation that was
9 inappropriate, if you factually know, you know; if you don't,
10 you don't. But something along the lines of these lawyers
11 over here aren't representing you properly. There's discord,
12 disharmony here, and there's a problem. They're not helping
13 you, Mr. Hilton. something along those lines?
14 A Yes.
15 Q And so it was brought to your attention that there
16 may be the necessity of withdrawing from the case because of
17 those circumstances?
18 A Yes.
19 Q was a decision made as to whether or not that was a
20 necessary or warranted action?
21 A well, I remember that Andy Thomas was -- was
22 involved 1n -- 1n this particular aspect of things pretty
23 heavily. I think that he either offered to, or I asked him to
24 go find out exactly what happened. Find out talk to
25 everybody. see if you can find out exactly what was said and
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1 what everybody is say1ng about it, and I don't remember there

2 ever being a specific conversation of, yes, we -- we need to
3 withdraw based on this or no; but we obviously didn't --
4 didn't. so ...
5 Q Proceeded forward with the case?
6 A Right.
7 Q okay.
8 A I know at the same time there was -- it was chaos
9 because, you know, with Betty quitting at this and us not
10 having this PowerPoint presentation ready to go, I know chris
11 Ellrich, our investigator, said, "well, I'm going to-- I'm
12 going to get -- I'm going to get the parts I think she was
13 trying to put into this PowerPoint, and I'm going to try to
14 put them together; and, you know, I can present it.
15 And so there was a lot of effort going into that,
16 and I don't have a recollection of how that decision was made,
17 or just, you know, decision by indecision maybe, I had --
18 Q Any other 1ssues that were brought to your attention
19 during the midst of trial? That's a lot but
20 A No, I think that summarizes it.
21 Q A guilty verdict results and then the penalty phase
22 ensues, and Mr. Hilton -- the jury recommends the death
23 penalty. The trial comes to a conclusion.
24 what steps did you take to -- what happened
25 afterwards with the capital unit?
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1 A well, as this whole thing started to unwrap the way

2 it did, I -- before the Hilton trial started, I -- I made a
3 decision that I'm going to make some changes.
4 I felt that Ms. Suber was out gas, and I felt like
5 chris Ell rich needed a change, and I felt like-- well, Betty
6 was gone by this time, so I felt like we just need to have a
7 fresh team in here. These folks have given it their all, but
8 I think they need different responsibilities in the office.
9 I had already-- already made arrangements for
10 Ms. Suber to go to the Appellate Division and for Mr. Ellrich
11 to -- to go back into a different investigative role and to
12 change the -- change the personnel in the Capital unit.
13 Q so the decision had been made to reassign people
14 prior to the commencement of the Hilton trial, recognizing the
15 1ssues that you just mentioned?
16 A Right.
17 Q How long before the Hilton trial was that?
18 A I -- I don't know the exact time, but I know it was
19 well before the trial, and it was -- I thought it would maybe
20 be a boost to -- to the team to know this is our, you know,
21 our last big responsibility for now, and we're going to get a
22 little break afterwards and that it would be a positive thing.
23 But I was -- I communicated that to both -- to all involved
24 well before the trial. It wasn't -- some people tried to
25 portray it at the time as, oh, Nancy fired them all from the
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1 Capital team because they lost the trial. No. It was-- it

2 was going to happen whether the trial turned out one way or
3 the other.
4 Q well, if you recognized the issues ahead of time and
5 it was well in advance, why not reshuffle prior?
6 A well, I just -- as I said earlier, I don't -- I
7 didn't see the feasibility of with such a huge case and all
8 of that discovery that had to be reviewed and all those
9 forensic issues, for somebody to take that on and come up to
10 speed within the time of trial, I just didn't think it was
11 possible. I mean, 1n looking back on it, I -- I think that
12 was a mistake.
13 Q well
14 A That was my thinking at the time.
15 Q who was assigned to the capital Division to replace,
16 reshuffle, reorganize afterwards?
17 A Steve Been.
18 Q And then was there a designated second chair, or did
19 we kind of proceed with the same format as previously?
20 A same format. And we did have a different
21 investigator, too.
22 Q Mr. Ellrich, who rotated out?
23 A He was.
24 Q And then another investigator
25 A He ended up back there eventually, but he was out
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1 for a while.
2 MR. MORRIS: Tender the witness, Judge.
3 THE COURT: why don't we take 10 minutes.
4 (Recess.)
5 THE BAILIFF: All r1se. court 1s back 1n sess1on.
6 THE COURT: Be seated, please, folks.
7 You may proceed, Ms. cappleman.
8 CROSS EXAMINATION

9 BY MS. CAPPLEMAN:
10 Q Hey, Ms. Daniels. Let me follow up on a -- a few
11 questions regarding the team and the structure of the team
12 within the office.
13 The folks that you had on staff that represented
14 Mr. Hilton, would you have considered them to be among the
15 best that your office had to offer at that time in terms of
16 experience and capability?
17 A Yes.
18 Q And you talked a little bit about Ms. Suber and her
19 qualifications and ability. what about Ms. saunders? was she
20 any good as an attorney?
21 A well, very good. she's an excellent attorney,
22 appellate as well as trial, and had a reputation for stellar
23 legal work.
24 Q what about Mr. Friedman? what kind of capabilities
25 did he have?
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1 A He, too, had done very good work in our office and
2 done a lot of different -- had a lot of different assignments
3 and had done well in his assignments.
4 Q All right. And were all of the attorneys that were
5 assigned to the case that ultimately ended up representing
6 Mr. Hilton at trial, did they have a good track record as far
7 as work ethic and putting in long hours?
8 A very much so.
9 Q And did you attempt to g1ve the team whatever it was
10 that they needed, either through financial resources or extra
11 manpower, to be successful in the representation of
12 Mr. Hilton?
13 A Yes.
14 Q Did you have any concerns regarding Ms. Suber's
15 understanding of scientific issues?
16 A No. she had had DNA and ballistics and tool marks
17 and all of that in other cases.
18 Q All right. And had she demonstrated a proficiency
19 1n reference to cross examining those types of witnesses
20 previously?
21 A Yes.
22 Q when you made the decision, pr1or to Mr. Hilton's
23 trial, to reorganize the Capital unit, I think you testified
24 that that was because the capital unit was -- had been working
25 really hard.
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1 A Yes.
2 Q Not due to -- it wasn't due to incompetence that you
3 were thinking of making these changes?
4 A I thought that Ms. Suber was worn down and
5 demonstrating some emotional problems --
6 Q okay. But she was worn down due to --
7 A that came to light during the trial.
8 Q hard work?
9 A Yes.
10 Q And doing good work?
11 A Yes.
12 Q And the emotional problems that you're referencing,
13 the evidence of that is the e-mails that you referenced?
14 A The difficulty getting along with the other lawyers
15 as the case went along. The e-mails
16 Q was the difficulty getting along with other lawyers
17 something that predated Mr. Hilton's case?
18 A somewhat, but it seemed like it got worse.
19 Q And you were Ms. Suber's boss, meaning she directly
20 reported to you, as far as up her chain of command would be
21 you?
22 A Yes.
23 Q All right. And what about Mr. Friedman, would that
24 be the same?
25 A Yes.
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1 Q In reference to the strategy that was employed in

2 this case, were you involved in the plea negotiations? or did
3 you go to any meetings at the State Attorney's office
4 regarding seeking a plea offer for Mr. Hilton?
5 A No.
6 Q Do you believe 1s it your philosophy that to have
7 an effective mitigation, a capital defendant must concede
8 guilt?
9 A No.
10 Q In fact, I think you said on direct that your office
11 never does it that way.
12 A we didn't. we had represented Danny Rollins on
13 appeal, and it was done in his case. It was-- there was a
14 plea of guilty and then a penalty phase. And I came to the
15 conclusion from that, that unless you could negotiate a life
16 sentence, there would never be a reason to forego a trial.
17 Q what would -- you can't think of an advantage to
18 foregoing a trial?
19 A Not 1n a capital case.
20 Q And regarding the strategy decisions 1n both the
21 guilt and penalty phase, you did not intervene with either of
22 your subordinates, Ms. Suber or Mr. Friedman, to make changes
23 in the -- in reference to the strategy for either phase of the
24 trial, did you?
25 A No, I didn't intervene. I expressed my op1n1on that
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Q Do it this way.
A Yes. No, I didn't do that.
Q okay. or change this?
A Right.
Q okay. so do you know whether your advice was

12 A My impression was that that was go1ng to be a

13 prominent part of Ms. Fuentes's presentation.
14 Q okay. But, obviously, Ms. Fuentes quit and was not
15 a part of the penalty phase. Did you attend the penalty phase
16 of the trial?
17 A No.
18 Q Have you reviewed the transcript of the penalty
19 phase?
20 A No.
21 Q Have you ever discussed with Mr. Friedman whether or
22 not "Ritalin made me do it" was a part of his defense; and, if
23 so, how it was presented?
24 A I had conversations with him where I -- I got the
25 impression it came in to some -- to some degree.
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1 Q okay. In reference to Ms. Bohanan and her making

2 the comments to Mr. Hilton in the courtroom that were
3 previously testified about, she was asked to leave the
4 courtroom and was not permitted back in the courtroom for the
5 remainder of the time. were you aware of that?
6 A Yes.
7 Q was that your decision?
8 A Andy and my decision --
9 Q okay.
10 A I believe.
11 Q so at that point you felt that there was a problem
12 with an attorney in the courtroom that was an ethical problem
13 and demanded your attention immediately?
14 A I don't remember the timing of it. I remember a
15 conversation with Andy Thomas where we decided that had to
16 be -- had to be done.
17 Q okay. well, if we assume that it occurred within
18 minutes of the comments being made to Mr. Hilton, 1n fact,
19 before we resumed session that morning, would you agree that
20 it happened pretty swiftly?
21 A Yes.
22 Q And you didn't find cause for any of the reasons
23 discussed on direct to make that kind of intervention in
24 reference to any of the other attorneys that were representing
25 Mr. Hilton during the course of the trial?
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1 A (Shaking head negatively.)

2 Q Regarding Ms. Fuentes's PowerPoint
3 THE COURT: I'm -- I'm sorry. was there an answer?
4 MS. CAPPLEMAN: Yes, sir. The answer was no,
5 correct?
6 THE WITNESS: I said no.
7 THE COURT: I'm sorry. It was very quiet.
8 THE WITNESS: I'm sorry. No.
9 BY MS. CAPPLEMAN:
10 Q okay. I'm sorry. Moving on to Ms. Fuentes's
11 PowerPoint presentation, do you know whether the defense
12 sought to introduce the PowerPoint presentation in the penalty
13 phase?
14 A Yes. I think chris Ellrich tried to reassemble it
15 or take parts of it and put it together and attempted to get
16 the whole thing admitted into evidence. And my impression was
17 some parts of it did -- were admitted into evidence.
18 Q okay. were there any specific parts of the
19 PowerPoint presentation that you felt were important to be
20 admitted that you know were not admitted?
21 A I don't know that degree of detail about it. I just
22 know that they came back from court saying, "we weren't able
23 to get this in. we weren't able to get that in." And they--
24 they felt like the gist of it had not gotten across.
25 Q okay. But, specifically, you don't have any
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1 knowledge of anything not getting 1n

2 A No.
3 Q -- that you felt needed to be admitted?
4 A I didn't know the detail of it to -- to say.
5 Q All right. Regarding drugs and alcohol, I think you
6 were pretty clear about this, but I just want to clarify that
7 you had no reason or evidence to believe that Ms. Suber was
8 appear1ng in court intoxicated or impaired in some way?
9 A I never saw her impaired. I never smelled alcohol
10 or
11 Q All right.
12 A -- saw glassy eyes or anything like that.
13 Q And you had no reason to force her to withdraw from
14 the case based on the use of drugs or alcohol?
15 A No.
16 Q or to fire her for that, which I think would be
17 cause for termination if she's drunk or high in court.
18 A No. No. I I think that I had cause to have a
19 conversation with her about it, and I did, and I had no --
20 nothing further to go on.
21 Q All right. was there ever a conversation, post
22 trial, or I guess prior to this hearing, regarding
23 ineffectiveness of trial counsel as a strategy to save the
24 Defendant from the death penalty or assist him 1n getting a
25 new trial?
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1 A No. I don't believe in that.

2 Q And your highest duty is to the client, correct?
3 A Absolutely.
4 Q That's true of each member of your team?
5 A Yes.
6 Q I mean, you don't want Mr. Hilton to be executed.
7 A I don't. I wish he had been able to plead to life.
8 Q If you believed that any member of Mr. Hilton's team
9 was drunk, high, unethical, or ineffective, you would have
10 been obligated to take immediate action and remove that person
11 from the case.
12 A Yes.
13 Q And that's what was done with Ms. Bohanan.
14 A Based on her breach.
15 Q Did anybody ever suggest to you withdrawing from the
16 case, that the -- that your office should withdraw?
17 A I -- I -- I think there was conversation about
18 maybe, maybe we need to withdraw based on this. But I don't
19 remember how that was resolved other than that we didn't.
20 Q Based on what?
21 A Based on what happened between Ms. Bohanan and
22 Mr. Hilton.
23 Q okay. I was referring more to your testimony
24 regarding the state of preparation of the case.
25 A oh. I don't recall anybody say1ng we need to
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1 withdraw because we're not properly prepared.

2 MS. CAPPLEMAN: one moment, please, Your Honor.
3 (Pause.)
4 MS. CAPPLEMAN: Nothing further, Your Honor.
5 THE COURT: Redirect?
6 REDIRECT EXAMINATION

7 BY MR. MORRIS:
8 Q Ms. cappleman asked you about Ms. Suber's
9 proficiency with respect to scientific evidence. Do you
10 frequently watch your trial attorneys deal with scientific
11 evidence and expert witnesses?
12 A No.
13 Q And I guess -- let me g1ve you somewhat of a
14 hypothetical. If you have blood that belongs to or is
15 attributed to the Defendant, quintillion times or whatever
16 these DNA reports have; and then you've got other items that
17 have mixtures on them, if you focus on trying to debate the
18 mixture items and say that, oh, that's not this person's
19 blood, then allows the State to drive home the fact that the
20 others are absolutely the person's blood. Do you know whether
21 or not Ms. Suber -- how she handled issues like that in this
22 particular case?
23 A I don't.
24 Q same question as it relates to the tool mark
25 comparison evidence, her familiarity and how she would have
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1 handled that. And you mentioned the Danny Rollins case. The
2 Danny Rollins case had tool mark comparison evidence in it to
3 my recollection. Do you know how she -- Ms. Suber handled it
4 1n this case?
5 A No.

6 Q I think that it was specific to a knife and puncture

7 wounds 1n a tire in this case.
8 A Yeah. I know there was an expert on that, and I

9 know there was quite of a bit of discussion about it in the

10 1n the meetings, but I don't know how she specifically handled
11 it in the trial.
12 Q So I guess your response to Ms. Cappleman's question
13 as it relates to proficiency, it's more that, yes, Ms. Suber
14 has encountered this type of evidence before, and she's had to
15 deal with it. To what level or whether it's being dealt with
16 1n a good way to argue to the jury, that probably is case to
17 case.
18 A I don't know. I -- I had the impression she was
19 competent to handle that kind of evidence based on her
20 experience, but I don't know the details of it.
21 Q The chain of command issue, Ms. Suber was to report
22 to you. Ms. cappleman asked whether Mr. Friedman was to
23 report to you also.
24 was there a point 1n time that Ms. Suber was first
25 chair, and as first chair, was the supervisor; and
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1 Mr. Friedman second chair, thus, he would report there? Or

2 was it a circumstance that both were reporting to you?
3 A As I said earlier, I don't think that was
4 specifically part of the organization, ever, that -- that he
5 would report to her, that -- the effort was to have a team
6 collaboration on -- on 1ssues so that the guilt and penalty
7 would be harmonious.
8 But as it developed, Ms. Suber would come talk to me
9 about var1ous things; Mr. Friedman would come talk to me about
10 var1ous things; and I'd almost always say, "You need to talk
11 to each other about these things and let's talk about this 1n
12 the next meeting," and that type of thing, because I was
13 constantly trying to weave it together. But ...
14 Q Do you know whether they did actually talk outside
15 of those meetings?
16 A My impression 1s early in the case they did, but
17 that as the case went along, they didn't so much. But I don't
18 know specifically.
19 Q And in those meetings that you had, were they
20 actually talking to one another, or were they being responsive
21 to you? Are they talking through you as the chairperson of
22 the board?
23 A I would say some of each. I can remember them
24 talking directly to each other at times. But other people
25 were talking, or Ms. Fuentes was talking or chris Ellrich was
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1 talking, and we were all talking together.

2 Q In an ideal world you look at two of your lawyers
3 and you say, you two, you get along. Get in there, get after
4 it and do your jobs. That morphed, though, where it was
5 evident to you that there was a problem, and there were
6 barriers to communication; and, thus, you tried to implement
7 solutions to those problems?
8 A Yes.
9 Q Did you feel that they were successful?
10 A NO.

11 Q You mentioned the Danny Rollins case. In not

12 thinking that the entry of a guilty plea and then a penalty
13 phase was a sound strategy 1n a capital case, did you have a
14 prohibition in your office of the utilization of that
15 strategy?
16 A I wouldn't say I ever issued a memo or e-mail say1ng
17 we will never do this, but
18 Q Philosophically, people were aware that you didn't
19 like the idea?
20 A Yes.
21 Q If somebody -- if Ms. Suber or any of the lawyers
22 had come to you in this case and told you that this is the --
23 a potential idea and here is why, and they laid out a valid
24 case, would you have allowed it or prohibited it?
25 A I don't -- I don't think I would have outright
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1 prohibited it. I would have listened to why they thought

2 that. I would have probably given them the feedback I had
3 from that earlier experience and why I didn't generally think
4 it was a good idea. But I -- I'm not an ultimatum kind of
5 person. so ...
6 Q would it be fair to characterize that there may have
7 been a culture within the office recognizing those feelings
8 toward that? Is that something that you've discussed as it
9 relates to capital cases?
A I wouldn't say it was generally known to everybody
that I felt that way but probably people that worked on
capital cases.
Q And that's -- that's really my question
A uh-huh.
Q -- because you likely attended many of the same

17 that; Nancy doesn't agree with that and I don't agree with
18 that? would that have kind of been the underlying
19 understanding of that strategy?
20 A I don't know. I -- I expressed it to a few lawyers,
21 but I can't recall it ever com1ng up as -- as an actual
22 decision that had to be made.
23 Q okay. with reference to the PowerPoint, 1s it fair
24 to say that you were not aware of all of the mitigation points
25 that needed to be made on behalf of Mr. Hilton?
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1 A Right.
2 Q Is it likewise fair to say that you wouldn't have
3 been able to pick out the most important slides or know what
4 their relevance was in Mr. Hilton's penalty phase case?
5 A Right.
6 Q You would have needed to rely on either the
7 mitigation specialist, the investigator, or the lawyer to know
8 what's the relevance or the significance of this particular
9 circumstance?
10 A Yes.
11 Q They would be the ones tasked with being able to
12 tell the story of Mr. Hilton's life and what got him to the
13 point that brought him here to this courtroom?
14 A Yes.
15 MR. MORRIS: That's all I have, Judge.
16 THE COURT: Let me clarify something, Ms. Daniels.
17 You you talk about these team meetings. Give me a
18 little idea in the time, let's say in the six months
19 prior to trial so we have a little context, how -- how
20 frequently were these team meetings occurring?
21 THE WITNESS: I'd say at least once a month. Maybe
22 some, as we got closer, closer to three weeks, maybe, or
23 two weeks.
24 THE COURT: okay. And who was involved 1n the
25 meetings?
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1 THE WITNESS: Ms. Suber, Ms. Fuentes, Mr. Ellrich,

2 Mr. Friedman, Ms. Bohanan toward the last phase. And
3 that's --that's pretty much it. And me.
4 THE COURT: Ms. saunders was
5 THE WITNESS: Oh, Ms. Saunders, yes. After
6 November. And me.
7 THE COURT: And yourself?
8 THE WITNESS: Yes, Slr.
9 THE COURT: And -- and what was discussed 1n those
10 meetings? what was the general kind of things that were
11 discussed?
12 THE WITNESS: Yes. where are we on this? what
13 happened when you went to Atlanta and talked to this
14 person? Just sharing information and bringing me up to
15 date. Bringing everybody else up to date on what
16 where where we were on the case.
17 THE COURT: So fairly detailed, then.
18 THE WITNESS: Yes. They would generally last an
19 hour, an hour and a half, something like that.
20 THE COURT: And strategy matters were discussed?
21 THE WITNESS: Yes.
22 THE COURT: Thank you.
23 Any followup?
24 MR. MORRIS: Not from the defense, Judge.
25 THE COURT: Ms. Cappleman?
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1 MS. CAPPLEMAN: No, Slr.

2 THE COURT: All right. YOU can step down. DO we
3 need to keep Ms. Daniels longer?
4 MR. MORRIS: No.
5 THE COURT: Do you need her for any reason, Ms.
6 cappleman?
7 MS. CAPPLEMAN: No, Your Honor.
8 THE COURT: You're excused. Thank you for being
9 here.
10 call your next witness.
11 MR. MORRIS: Defense would call chris Ellrich.
12 THE COURT: If you would face the clerk and be
13 sworn, please.
14 whereupon,
15 CHRISTOPHER ELLRICH
16 was called as a witness, having been first duly sworn, was
17 examined and testified as follows:
18 THE COURT: Have a seat. slide up to the
19 microphone, please.
20 And for your benefit, Mr. Ellrich, we have
21 previously indicated on the record the attorney/client
22 privilege has been waived based upon Mr. Hilton's current
23 motion, so please answer any relevant questions.
24 You may proceed, Mr. Morris.
25 MR. MORRIS: Thank you, Judge.
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1 DIRECT EXAMINATION
2 BY MR. MORRIS:
3 Q can you state your name for the record, please, sir?
4 A christopher Ellrich.
5 Q And spell your last name.
6 A E-l-1-r-i-c-h.
7 Q All right. Mr. Ellrich, how are you currently
8 employed?
9 A I'm chief investigator with the Public Defender,
10 second Judicial circuit.
11 Q How long have you been with the office of the Public
12 defender9?
13 A I interned in 1981. I was hired briefly after that.
14 And then after a three-year stint in the Navy, I was hired
15 back 1n 1985 full-time.
16 Q You may want to slide that microphone back just a
17 hair, just so it doesn't pick up on you breathing. You've got
18 an audible enough voice that I think that we'll be okay.
19 so roughly '84, '85 you came on board with the
20 Public Defender's office?
21 A December of 1985 full-time.
22 Q what was your educational background or your
23 qualifications to become an investigator?
24 A I had a degree 1n criminal -- criminology from FSU.
25 Q what did you do in the Navy?
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1 A surface warfare officer, and I stayed 1n the

2 reserves and retired in 2004.
3 Q By 2007, 2008, with the emergence of Mr. Hilton's
4 case, where were you assigned? How were you assigned in the
5 office as an investigator?
6 A I was assigned the capital Division as the
7 investigator.
8 Q were you the chief investigator, or --
9 A No.

10 Q You had a specific role and designation as being the

11 investigator in the capital unit?
12 A Right.
13 Q How long had you been 1n the capital unit when
14 Mr. Hilton's case came into the office?
15 A I want to say since 19 -- the latter part of the
16 '90s.

17 Q Okay. So you had been --

18 A And -- and I had been there for a long time. But
19 you have to understand that I had a felony division for a long
20 time and did capital for a long time. And then when they
21 finally said, okay, we're going to set up a division, then
22 I -- I went into the capital Division.
23 Q I gotcha. So take a stab at how many capital cases
24 you had worked on as an investigator.
25 A Maybe 60 to 70.
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1 THE COURT: Back off from that m1c just a little

2 bit, if you will, Mr. Ell rich. If we need to 1ncrease
3 the volume, I will, but drive everybody crazy with
4 that
5 THE WITNESS: I'm sorry. Sorry.
6 THE COURT: All right.
7 BY MR. MORRIS:
8 Q You said 60 to 70?
9 A Yeah, and that's just a rough guesstimate.
10 Q okay. I assume that your role in capital cases
11 varied 1n the sense of what you were looking for or doing.
12 But 1n Mr. Hilton's case, did you have defined responsibility?
13 A I did, but it wasn't -- it wasn't typically what I
14 would do.
15 Q okay. First, let's start with what would you
16 typically do?
17 A Normally, I was the first person to go out and see
18 someone who was charged with murder. I would do what was
19 called an intake. And I'd get deep background information
20 from the person and talk to them about what happened, see if
21 there were any witnesses and have them s1gn releases.
22 The reason for this was, one, to brief the attorney;
23 and, two, to get started with the records retrieval, because
24 records, they get destroyed so quickly, it's kind of fleeting.
25 You only have a certain time to really get records. And,
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1 also, to help the mitigation specialist on where to start with

2 stuff.
3 Q okay. And Mr. Hilton's case was different 1n some
4 respects?
5 A I never did an intake on him.
6 Q okay. Had that already happened by the time that
7 the case emerged? or ...
8 A No. No. The lead attorney, Ines Suber, didn't want
9 me to.
10 Q Did she tell you why she didn't want you to?
11 A she may have. I remember Betty Fuentes, our
12 mi ti gati on specialist, asking her, "why don't you just have
13 chris do an intake? Let chris do an intake." But she never
14 wanted to.
15 I -- I -- I got the impression that maybe she
16 thought the case was too important for me just to go out there
17 and talk to him. I don't know. Honestly, I don't know.
18 Q okay. In either event, you didn't do the intake
19 that you would normally do?
20 A No.
21 Q And you said that you had specific assigned tasks.
22 what were -- what was your role that you viewed in Mr.
23 Hilton's case?
24 A Typically, 1n the guilt phase I would, you know,
25 talk to any guilt phase witnesses or do any work to assist the
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1 mitigation specialist.
2 Q In the guilt phase or the penalty phase?
3 A In in both phases.
4 Q okay.
5 A And so, 1n other words, I didn't strictly work guilt
6 phase. In other words, if we needed help in finding somebody,
7 I would, you know, I would help out. or I would
8 Q okay. And did you search and retrieve documents?
9 A Yeah. And I would turn them over to -- to
10 everybody, really. we had kind of a system where everybody
11 got a copy of what I found.
12 Q okay. Tell me about when Mr. Hilton's case had its
13 inception, who was on the team? who was in charge? what was
14 going on?
15 A Ines was 1n charge. Let's see. Steve Been was also
16 on the team. Betty Fuentes was the mitigation specialist. I
17 can't remember if Merribeth Bohanan was on at that time. And
18 that's that's who I remember.
19 Q And I don't want to go through where -- what
20 document requests you made and that sort of thing.
21 A Yeah.
22 Q But Ines was 1n charge, and she's providing
23 direction and directive to each member of the team?
24 A Yes.
25 Q Let's fast forward to the s1x months before trial.
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1 what was the culture of the trial team from the inception of
2 the case leading up to the six months before trial?
3 A This may have been around the time when the trial
4 team was kind of bifurcated, where the -- I can't remember the
5 exact date; but Rob -- Rob and Paula, two other attorneys,
6 were assigned to take over the penalty phase.
7 Q okay. And so --
8 A Rob Friedman and Paula saunders.
9 Q understood. It's your recollection that
10 Mr. Friedman was not assigned from the inception; he was
11 inserted along with Ms. saunders at a later point?
12 A Yes, as I remember.
13 Q why was it -- why did you perce1ve that they were
14 inserted and things were bifurcated, to use your word?
15 A Because it being a very complicated and difficult
16 case with the prospect of the death penalty very likely, I
17 guess the idea was the administration thought that she
18 needed -- Ines needed help.
19 But it was different 1n this way, in that I've
20 always learned that the primary attorney, the first chair,
21 kind of oversaw everything. But in this case, the impression
22 wasn't -- and keep in mind, I wasn't consulted a lot. The
23 impression was, is that the penalty phase got to make and do
24 their own decisions about how they would present things. The
25 guilt phase kind of operated, it seemed to me, separately.
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1 Q That was different than the norm?

2 A Typically, yes, in that the guilt phase would
3 complement the penalty phase, and there was a lot of unity 1n
4 the way things were done.
5 Q okay. And this case was an anomaly because they
6 operated in separate compartments?
7 A Yes. And they may have not totally agreed on -- on
8 how things were to be handled. And Ines liked to do things
9 her way, and Rob and Paula liked to do things their way. Rob
10 and Paula were very, you know, good attorneys. I'm not sure
11 why it was set up exactly this way.
12 Q I sense you might be being polite, but I -- I think
13 that there's ample testimony that's out there. But were your
14 perceptions that Ms. Suber needed help and amongst the reasons
15 for that is that her personality was abrasive, or that she was
16 offending lawyers, or she wasn't getting things done?
17 A Yeah. she -- she was kind of difficult to work
18 with, and the the case needed to move along, and --
19 Q was that the reason or your perception for the
20 reason that Ms. saunders and Mr. Friedman were brought in?
21 A Yes. Yes, that was my perception.
22 Q And so on one end of the continuum we have Ms. Suber
23 handling the guilt phase. we have those other two lawyers
24 handling the penalty phase.
25 A Yes.
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1 Q were you communicating and working for both?

2 A oh, yes. whenever I would find something or do
3 something, everybody got a copy of what I did or and and
4 primarily Ines would g1ve me, you know, tasks to do.
5 Q were you being used as a go-between to communicate
6 from one portion of the team to the other?
7 A I can't remember that specifically, but I could see
8 that as being possible. I just can't remember specifically
9 about that. It's not something I would have noted. I -- 1n
10 other words, it may have been kind of normal at the time.
11 Q were the parties communicating with one another?
12 A Not as much as I would have liked, honestly. I -- I
13 just
14 Q characterize that for -- for me.
15 A Just I -- I love the idea of a whole defense team
16 meeting all the time together, working together, everybody
17 talking, exchanging ideas. It just didn't seem like that at
18 all.
19 Q Good minds can differ, agreed?
20 A oh, yes.
21 Q How do you resolve those differences? or what
22 historically has been the way to resolve those differences?
23 A well, the idea was whoever is in charge of what part
24 made the final decision; and if it was the lead attorney, then
25 the lead attorney would have decided.
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1 If they had bifurcated it, one was in charge of the

2 penalty phase and one was in charge of guilt, then each one
3 would decide how they would do it.
4 And I have disagreed with attorneys many times
5 before on how things go, but I've always felt, well, the
6 attorney is the one who is actually responsible, and I'll
7 follow what they say.
8 Q Specific to the penalty phase, right around the time
9 of trial, what involvement did you have in either the decision
10 making or the responsibility of what witnesses are available
11 to be called, who is under subpoena, who is prepared, who is
12 ready? was that your responsibility, or would that have been
13 Ms. Fuentes's responsibility?
14 A It would have been Ms. Fuentes's responsibility.
15 Q You would have been the worker bee previously to
16 have gotten the documents that might be associated with those
17 particular witnesses?
18 A That or anything else that needed investigation or
19 logistics of -- in helping Ines specifically. I remember I
20 spent a lot of time finding stuff in files for her that she
21 needed. I wasn't -- I wasn't though I knew what was go1ng
22 on, I wasn't totally involved 1n the mitigation phase in the
23 penalty phase.
24 Q okay. You were more involved, then, 1n the guilt
25 phase --
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1 A Right.
2 Q -- and helping Ms. Suber out?
3 A Right. Right.
4 Q How would you characterize Ms. Suber's demeanor in
5 the months leading up to trial in terms of her rationality or
6 stability, et cetera?
7 A she was probably a little harder than normal to deal
8 with. And I -- and -- and and it's hard for me to
9 characterize how much, maybe, more abrasive or, you know,
10 difficult she was being because it kind of ebbed and flowed
11 with me.
12 Q Did you have a different relationship with her than
13 others 1n terms of your working relationship?
14 A oh, yeah.
15 Q You -- were you on the rece1v1ng end of the
16 abrasiveness? or --
17 A Typically, yes.
18 Q okay.
19 A But working with Paula and Rob, you know, it's all
20 business, everything is professional.
21 Q okay. so it would get tempered -- her abrasiveness
22 would be tempered by Paula and Rob's presence in the case?
23 A Right.
24 Q so while she might be angry with you or -- you had
25 an outlet to be able to go and say, you know, I'm frustrated
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1 with Ines; but, you know, here's what I need to do. what do
2 you guys need me to do?
3 A I can't remember doing that specifically. And if --
4 if I did I -- I think it's possible.
5 Q And I'm not saying that you did.
6 A It would have been possible to do that. I can't
7 remember specifically doing that.
8 Q During the course of the trial, there's a fair bit
9 of evidence that there were some pretty major problems that
10 occurred. Do you have any recollection of any particular
11 instances of conduct or your involvement in anything?
12 A Yeah. The one I remember specifically was that
13 Betty wanted the -- Betty Fuentes wanted the penalty phase to
14 go a little bit differently by calling, you know, some
15 witnesses, and Rob didn't agree.
16 I wasn't around -- I -- I wasn't in on that initial
17 decision making. I wasn't really consulted about it. But I
18 remember Betty wanting -- was -- was quitting. And I remember
19 being called into Nancy Daniels' office, and Nancy asked me to
20 talk to Betty, who was on speakerphone.
21 Q You were called into her office?
22 A Yeah. And there were other people around. And I
23 said, "Betty, please don't quit, please." You know, "Please
24 don't do this."
25 And she said, you know, essentially, "I have to."
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1 And Nancy said, "well, you're fired." And then right after
2 that, said, "okay, chris, you're taking over in mitigation."
3 Q what did you -- were you familiar with the vastness
4 of the mitigation?
5 A Not totally, but I was familiar enough to sit down
6 and get smart in it.
7 Q well, were you familiar with Mr. Hilton's youth and
8 upbringing, where that happened?
9 THE COURT: I don't understand your question,
10 Mr. Morris.
11 BY MR. MORRIS:
12 Q were you familiar with ages birth through eight
13 years old, where Mr. Hilton lived and where he went to school?
14 A I believe I would have been then. I'm not now, but
15 I would have been then.
16 Q I wouldn't ask you to name the schools off the top
17 of your head.
18 were you familiar with any traumatic events that
19 happened 1n his life?
20 A I can't remember anything specifically. But, then
21 aga1n, I have data-dumped a lot of the information that I was
22 going through since then, so I my -- my memory --
23 Q well, I guess, maybe an eas1er way of me asking the
24 question 1s: comparatively, Ms. Fuentes -- how familiar were
25 you with the mitigation evidence and the witnesses associated
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1 with that evidence?

2 A she would -- she would g1ve out cop1es of everything
3 she did, as well, to everybody.
4 Q Had you spoken with the witnesses 1n advance?
5 A sometimes I did. sometimes I didn't. Especially if
6 I found someone I thought would be a good mitigation witness,
7 then I would pass it on to her.
8 Q And she would develop or cultivate the witness more?
9 A It was up to her and Ines or whoever was handling
10 the penalty phase.
11 Q so it was left to you, then, to handle the penalty
12 phase when Ms. Fuentes resigns or is fired. what did you have
13 to do?
14 A I had to put together a PowerPoint us1ng information
15 that that -- Betty had been working on this. It was like,
16 I think, a PowerPoint. And I got that information and started
17 putting it together. And then Rob would come in and say,
18 okay, delete this, delete that, or add this. And I remember
19 it was like many late nights working on that it seemed.
20 Q And how was it that the PowerPoint was go1ng to be
21 presented to the jury? were you going to narrate it?
22 A Yeah. I -- I was -- I was assigned to -- to narrate
23 the PowerPoint.
24 Q were you 1n a position to be able to narrate it, or
25 were you having to learn what the contents of the slides were?
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1 A I had to learn the contents of the slides, and --

2 Q so you didn't know exactly what you were looking at
3 1n each instance?
4 A By that time, I believe that I knew what I was
5 talking about.
6 Q okay. And I may have misunderstood you. You
7 indicated that you had to learn what each of the slides were
8 about?
9 A Right.
10 Q HOW did you -- how did you go about doing that?
11 A several you know, a lot of elbow grease and going
12 through everything.
13 Q okay.
14 A And it wasn't a choice, it was something that I had
15 to do, and --
16 Q well, when you're the last man standing, you've got
17 to -- you've got to carry it over the line, I guess.
18 A Right. so it -- it was just something that I had to
19 get familiar with and be able to testify, and
20 Q so you assembled the PowerPoint?
21 A she had assembled a lot of it, so it wasn't -- it
22 wasn't just me making it from scratch.
23 Q And then your and Rob's plan was what? Do what with
24 the PowerPoint?
25 A Present the PowerPoint and then go over it with Rob.
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1 And Rob would say, okay, well, let's, you know, leave out this
2 or leave out that, or he would kind of edit it.
3 Q I mean, ultimately, once it was assembled, once you
4 had gotten the job done and he approves of everything, what
5 was the game plan to do with the PowerPoint?
6 A That -- that I would present it as a witness, a
7 mitigation witness.
8 Q Did that happen or did it work?
9 A It -- I remember being on the stand and talking to
10 some of the stuff -- I remember it may have been interrupted.
11 I can't remember specifically how it worked. That's a good
12 question. I can't remember that. But it was -- honestly, I
13 can't remember if they allowed it or not.
14 Q okay. Do you have any recollection as to why or why
15 not?
16 A Not right off.
17 Q Did you have witnesses present to be able to testify
18 to the things that were contained in the PowerPoint
19 presentation?
20 A I think Betty had -- had -- previously had made sure
21 that
22 Q But recogn1z1ng that you had to pick up the mantle,
23 did you have sufficient time to be able to get those witnesses
24 and make certain of their availability?
25 A Not that I remember. It would have been very
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1 difficult. I was -- I was basically trying to follow what Rob

2 wanted done.
3 Q was Mr. Friedman reliant upon that PowerPoint
4 presentation and reliant on you to be able to provide it to
5 the JUry for mitigation?
6 A It seemed as though, yes.
7 Q was it a streamlined way of presenting mitigation to
8 the JUry rather than calling multiple witnesses?
9 A It seemed to me that it was -- it had been
10 streamlined from what Betty had.
11 Q so the idea was to and I don't want to put words
12 1n your mouth. The idea was to avoid calling witnesses and
13 see what we can do to get the information to the jury through
14 the PowerPoint?
15 A Yes.
16 Q And then whatever -- whatever got over the rail to
17 the JUry and whatever the record reveals, it reveals in terms
18 of what information the court allowed, agreed?
19 A Yes.
20 Q Did you make any judgments as to the logic of
21 Mr. Friedman's decision making or the adequacy of it? or are
22 you
23 A If I did at the time, I can't remember. I was just
24 too busy. It was a very busy time, and it didn't help when
25 she -- when Betty quit.
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1 Q when Ms. Fuentes departed?

2 A Yeah, or got fired.
3 Q were you able to do an adequate job, being self-
4 critical, evaluating your own performance, based on Ms.
5 Fuentes's departure and the short time period that you had to
6 prepare for the penalty phase?
7 A Probably not as good as Betty. I just tried my
8 best.
9 Q Take what you got, assemble it, do the best that you
10 can?
11 A Yes.
12 Q Thank you, s1 r.
13 MR. MORRIS: Tender the witness.
14 THE COURT: Cross?
15 CROSS EXAMINATION
16 BY MS. CAPPLEMAN:
17 Q I think the question was: were you able to do an
18 adequate job with what you were given? what was your answer
19 to that?
20 A The best I could.
21 Q And were you able to do a thorough job 1n reference
22 to your duties as an investigator in this case?
23 A Yes.
24 Q How many hours would you say you worked on this
25 case?
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1 A oh, I never even thought about that. It seemed like

2 for years we worked many hours on it. But, also
3 Q was it more extensive than the typical capital case
4 as far as time that you that you spent?
5 A It seemed more extensive.
6 Q And did you travel out of town 1n reference to your
7 investigation of this case?
8 A Yes.
9 Q where -- what type of trips did you make?
10 A I remember -- I remember at least going to Miami to
11 look for stuff and look for records.
12 Q Sorry. were you finished?
13 A Yeah.
14 Q Are you still thinking, or
15 A Yeah, I'm still thinking. If I went -- I remember
16 going to Georgia, at least to see him initially in -- in the
17 Georgia jail.
18 Q so you did attend that meeting, the initial meeting
19 with Ms. Suber and Ms. Fuentes?
20 A Yeah. It was -- and Steve Been was there.
21 Q okay. And what was Mr. Hilton's demeanor like 1n
22 that meeting?
23 A He seemed calm enough.
24 Q okay. were you present the entire time that
25 Ms. Suber and Ms. Fuentes were present with him?
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1 A I can't remember if I was. I -- as far as what he

2 did and what he said, I can't remember specifically. How he
3 was acting, if he was -- there's something that sticks 1n my
4 mind, that he may have been a little bit abrasive, but
5 Q Do you remember him standing up in a confrontational
6 way toward Ms. Fuentes?
7 A I don't remember that, but I remember him say1ng
8 something to Ms. Fuentes that kind of took her aback, and I
9 can't remember specifically what it was.
10 Q something about being nice? Don't tell me how to
11 feel and
12 A It seemed something like that. I don't -- if --
13 if -- if he had been threatening to Ms. Fuentes, it would have
14 been a bad idea for him.
15 Q Did you think Mr. Hilton was 1n a mental state at
16 that time to do an intake with you?
17 A Yes.
18 Q But you were specifically told not to do the intake?
19 A Yes.
20 Q And were you present when Mr. Hilton made statements
21 regarding how he killed Ms. Dunlap and the sexual assault that
22 occurred after Ms. Dunlap was murdered?
23 A No, no, not that I remember.
24 Q Does it seem like something you would remember?
25 A Yeah.
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1 Q Is it possible that Ms. Suber and Ms. Fuentes met

2 with him outside of your presence?
3 A It could have been very possible, yes.
4 Q Is it possible that Ms. Suber did not want those
5 types of things documented 1n an intake report?
6 A I can't tell you why she would have wanted that.
7 Q Did Mr. Friedman ever ask you to locate a witness 1n
8 reference to the PowerPoint or the mitigation presentation
9 that you were not able to find?
10 A He may have. I can't remember specifically.
11 Q How long had you worked with Ines in the time that
12 you had been at the Public Defender's office? I'm sorry.
13 Ms. Suber. were you working with her the entire time that you
14 were employed?
15 A No. No. I'm trying to think. It seems like maybe
16 the mid-nineties.
17 Q Okay. So for quite a long time?
18 A Yeah.
19 Q were you familiar with her extended trips to
20 columbia?
21 A Yes.
22 Q And what was the approximate length of those thrips?
23 A It seemed like they would be gone, like, six weeks.
24 Q were those annual or --
25 A Annual.
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1 Q -- every other year?

2 A Annual.
3 Q And did you get a break when -- during the time you
4 were working with Ms. Suber, did you get a break while she was
5 on those trips?
6 A No. My first big vacation where I took more than
7 a -- than -- than a week off was last year. I took a month
8 off, and that was the first time in my life I've ever had that
9 long.
10 Q Explain why it was that you weren't able to get some
11 relief while Ms. Suber was on the extended trips?
12 A Typically, she would give a n1ce long list of all
13 the stuff she wanted us to work on.
14 Q Do you have a recollection during the trial itself
15 of scrambling to try to find witnesses?
16 A I do remember doing that. I can't remember
17 specifics about it.
18 Q And you can't remember whether there was one that
19 you were not able to find?
20 A It's entirely possible that I
21 Q I -- I kind of need to know a yes or no and who it
22 was if you couldn't find them. can you give us that
23 information?
24 A I can't. I -- I just -- I can't remember.
25 Q okay.
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1 MS. CAPPLEMAN: One moment, please.

2 (Pause.)
3 MS. CAPPLEMAN: Nothing further, Your Honor.
4 THE COURT: Redirect?
5 MR. MORRIS: No, sir.
6 THE COURT: All right. YOU can step down,
7 Mr. Ellrich.
8 Do we need to keep him further?
9 MR. MORRIS: No, Your Honor, he can be released.
10 THE COURT: YOU need him?
11 MS. CAPPLEMAN: He can be released.
12 THE COURT: You're released. Thanks for being here.
13 why don't we take about five.
14 (Recess.)
15 THE BAILIFF: All r1se. court 1s back 1n sess1on.
16 THE COURT: Be seated, please, folks.
17 You may call your next witness, Mr. Morris.
18 MR. MORRIS: Judge, the defense would call Tracy
19 Record.
20 THE COURT: Okay.
21 MR. MORRIS: And if I can ask whomever is a notary
22 or qualified to administer an oath in that jurisdiction
23 to please swear Ms. Record.
24 whereupon,
25 TRACY RECORD

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1 was called as a witness, having been first duly sworn by a

2 notary in her presence, was examined and testified by skype as
3 follows:
4 DIRECT EXAMINATION
5 BY MR. MORRIS:
6 Q can you state your name for the record, please,
7 ma'am.
8 A Tracy Record.
9 Q And if you can spell your last name.
10 A R-e-c-o-r-d.
11 Q Ms. Record, how are you employed?
12 A I am in private practice as a predominantly criminal
13 defense attorney.
14 Q How long have you been practicing law?
15 A I was admitted in April 2005.
16 Q Your prior employment, where were you previously
17 employed?
18 A Before go1ng into private practice, I was at the
19 Public Defenders's Office in Tallahassee, Second Judicial
20 circuit, from -- for seven years. I worked as a CLI prior to
21 getting my Bar card, and then worked there until January of
22 2012.
23 Q So from your admission until 2012, you were employed
24 at the Public Defender's office?
25 A I was.
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1 Q Somewhere 1n 2007 or so, you were assigned to the

2 capital unit within the Public Defender's office. Do you
3 remember specifically when you were assigned?
4 A I'm not exactly sure. I think it was actually -- I
5 want to say it was in 2008, but it could have been as early as
6 2007, I'm not really sure about that. My total time in
7 capital Division was about 18 months.
8 Q Eighteen?
9 A Yes.
10 Q Do you have a recollection as to whom it was that
11 you were replacing?
12 A Steve Been.
13 Q what was your -- what did your assignment 1n the
14 capital unit entail?
15 A I was second chair, and I participated in all the
16 division meetings and met with the clients at the jail,
17 participated in any of the court hearings that we had,
18 depositions, you know, all the duties of the second chair 1n
19 the capital Division.
20 Q And were you responsible for one case or multiple
21 cases?
22 A we -- we weren't -- the division wasn't set up that
23 way where one attorney had control over any particular case,
24 so I was assigned to every case that was in the division at
25 the time.
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1 Q okay. so if there were 10 capital cases in the

2 division at the time, you were assigned to all 10 of those
3 cases?
4 A correct.
5 Q At some point 1n time, Mr. Hilton's case became one
6 of those cases, and you were taking Mr. Been's place. what
7 were your responsibilities specific to Mr. Hilton's case?
8 A when I came on board in this division, I believe
9 that Ines Suber was away on a m1ss1on. In other words, she
10 participated in interviewing and making a final decision; but
11 shortly after the decision was made, I think she was gone.
12 So when I initially came 1n, I was just trying to
13 read discovery and get up to speed on all of the cases. The
14 division wasn't really run that way, when you say, what were
15 my specific tasks.
16 At -- at one point, late -- much later on 1n 1n
17 getting 1n the division, I was assigned to -- to investigate
18 experts on the forensic anthropology and participate in a Frye
19 hearing on the beads that were found. And so -- but there --
20 other than that, there weren't any specific assignments given
21 to me.
22 Q when you say that the division wasn't really run
23 that way, how was the division run?
24 A well, we had division meetings that were scheduled
25 approximately once a month, maybe longer in between, where we
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1 would discuss what was go1ng on on each case and sort of

2 brainstorm some things that needed to be done. But
3 predominantly, with the investigators, chris Ellrich and Betty
4 Fuentes.
5 But 1n terms of the division of labor between first
6 and second chair, it -- it never was very clear in terms of,
7 you know, what I was supposed to be working on. And so I just
8 went through and, you know, tried to absorb as much as
9 possible, see where I'm supposed to be, when I'm supposed to
10 be there; and, of course, obviously, you know, prepping for
11 depositions and court appearances.
12 Yeah, so it was -- I mean, Ines sort of bounced
13 around with what she was working on and sort of assumed that I
14 would be on the same page with her in what she was working on,
15 which wasn't possible.
16 Q Did you have the legal exper1ence to be on the,
17 quote, same page with her and what she was thinking? or were
18 you having to be reliant on her to provide guidance?
19 A I did rely on her a lot to provide guidance 1n terms
20 of, like, what she wanted to work on. But, you know, aga1n,
21 there wasn't a lot of direction on what I should be working
22 on. And, you know, I -- I would sort of say, okay, we've got
23 this coming up, I need to make sure about this, and I read
24 this part of the discovery or whatever. But then, you know,
25 come to find out, she was working on a different case, and
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1 then be asking questions about that. And I would have to stop

2 what I thought I should be doing and answer whatever question
3 she had about what she was thinking about on a different case.
4 so it was -- there wasn't a lot of coordination in that
5 respect at all.
6 Q okay. In say1ng that, characterize the direction,
7 if any, that you were given by Ms. Suber.
8 A we -- well, occasionally, there would be things that
9 would come up -- and I'm trying to, you know, direct this
10 toward the Hilton case -- where she would assign a -- a
11 specific task.
12 I --I did coordinate a lot with Chris Ellrich,
13 investigative interns who were working on the project to
14 gather all of the pharmacy records of Mr. Hilton filling his
15 prescriptions for Ritalin. so I did supervise the -- and --
16 and -- and check in with the investigative interns working
17 with chris Ellrich on that project.
18 Q would you characterize your work as focused on the
19 guilt phase? The penalty phase? Divided amongst them?
20 A Both. Yeah, it wasn't -- it wasn't separated that
21 way. Ines didn't run the division where it was, like, second
22 chair did mitigation and first chair did guilt. we both
23 participated in all the aspects of -- of both phases.
24 Q she -- she kept control of both of the things while
25 you were working under her tutelage?
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1 A Absolute control.
2 Q okay. when you came into the division and
3 specifically to Mr. Hilton's case, what was your understanding
4 of the strategy that would be implemented for Mr. Hilton's
5 defense?
6 A Didn't have an understanding of a strategy.
7 Q Did you come to learn of one?
8 A No. In-- in reviewing my notes, it's sort of-- I
9 don't know what the metaphor is that I want to use, but it
10 was, like, all over the place, you know, you would be working
11 on this, talking about this, just jumping back and forth
12 between different things. There's -- I -- I don't have any
13 notes about any strategy at all or cohesive, integrated
14 strategy.
15 Q And you used the words "integrated" and "cohesive."
16 why do you use those words?
17 A well, naturally, upon com1ng into the division, I
18 did attend a number of training, you know, capital training
19 sess1ons. we did -- I went to the Death is Different
20 conference on my own. And then the team went to intensive
21 capital training in Tampa over several days. And when I say
22 intensive, I mean, you know, it wasn't one of things where you
23 kick off at two. we went from eight in the morning until
24 well, well into after dinner and-- for several days, and it
25 was a bring-your-own- case style sem1nar. And, you know, all
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1 the training -- at the time we were talking about integrated

2 defense strategy where mitigation evidence that you plan to
3 put on in the anticipated penalty phase was woven into the
4 guilt phase.
5 Q In other words, the guilt phase and the penalty
6 phase have to talk to one another, and they've got to mesh
7 with one another?
8 A Yes.
9 Q so when you arrived in the division, there wasn't
10 any defined strategy or idea conceptualization as to what was
11 going to do to make that occur?
12 A Not at all. In fact, I remember reaching out to
13 someone I saw at the Death is Different, a capital litigator
14 by the name of Andrea Lyon, to get some advice from her about
15 how to handle what I refer to as the two-headed beast, you
16 know, how to -- how to be -- you know, work together, you
17 know, what things could we be doing 1n the division to have a
18 better breakdown of -- of the tasks that needed to be done,
19 because I felt frustrated in that aspect of it.
20 Q Specific to Mr. Hilton's case?
21 A No, not necessarily to you know, just 1n general,
22 because I -- I felt, you know, I I wasn't getting
23 direction. I didn't think I was, you know, being utilized
24 enough, or I'm -- I'm not sure, just -- I didn't feel like
25 there was any kind of cooperation or collegiateness (ph) at
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1 all.
2 Q You -- you referenced that you have notes. Did you
3 retain for yourself your own personal notes from while you
4 were 1n the division?
5 A Yes.
6 Q And so when you reference your notes, you're not
7 referencing notes out of a file; you're referencing notes out
8 of a journal or a logbook in terms of your particular
9 experiences in the division?
10 A Yes. I had -- I had a legal pad for each one of the
11 clients, and so I would take notes as to, you know, court --
12 court appearances, depositions, division meetings.
13 Q when you first entered the case or during your
14 18-month tenure 1n the division, was it ever expressed to you
15 that Mr. Hilton absolutely wants a scorched-earth trial,
16 object to everything, deny everything, and demand strict
17 proof? was that ever explained to you?
18 A No. And when I got into the division, they already
19 had the Hilton case. so as I said, while Ines was away, I was
20 trying to read the voluminous discovery and get up to speed on
21 what was go1ng on with the case.
22 But in reviewing my notes on this pad, and it's
23 probably not entirely comprehensive, but there are several
24 and I don't remember discussing anything with Mr. Hilton about
25 what he wanted to do.
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1 obviously, what -- was -- like, thinking, you know,

2 he would have been fine with that, if that's what happened in
3 the Georgia case. I believe Ines had gone up to Georgia, you
4 know, before he was actually indicted here. And, you know,
5 that's the only thing that I can comment on in terms of
6 what -- what he wanted. But scorched-earth, no, not 1n terms
7 of what he wanted.
8 Q Let me let me talk to you about your interactions
9 with Mr. Hilton. Did you ever have meetings with Mr. Hilton,
10 just the two of you, you and Mr. Hilton?
11 A Never.
12 Q Were you always accompanied by someone else?
13 A Yes. At -- at least Ines and sometimes Ines and Rob
14 Friedman.
15 Q what discussions with Mr. Hilton were had about
16 strategy, trial strategy, in terms of the presentation of the
17 guilt phase, the penalty phase, or any options that were
18 available to Mr. Hilton?
19 A The things that I -- that I have notes about and
20 that I can recall on my own, we -- we talked about specific
21 1ssues in the case, a lot of mitigation stuff, you know, in
22 terms of finding out witnesses and things like that. I -- I
23 don't have any notes or recollection of a discussion about any
24 strategy with him.
25 Q Do you have any recollection of Ms. Suber having any
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1 conversations with him about options or decisions that he

2 needed to weigh in on, on how the case should be presented to
3 the jury?
4 A No. And I had left the division before it was set
5 for trial.
6 Q Your departure from the capital unit was pr1or to
7 the case having been set for trial?
8 A That's my recollection.
9 Q what was your general understanding of what
10 mitigation would look like 1n the case?
11 A we -- we -- when when we were 1n Tampa doing that
12 intensive bring-your-case training, Betty was there trying to
13 get the mitigation evidence on the Murphy bed head injury.
14 And I think she made some good progress at that time.
15 so my understanding would be that we would talk
16 about his upbringing in Miami, and the domestic violence
17 situation that he was raised in with his mother and
18 stepfather. The head lnJury. And there was always talk of
19 trying to get a PET scan, I believe from Dr. wu.
20 The -- and it was my understanding that we were
21 go1ng to pursue negligent treatment of his mental health
22 problem by Dr. Delcher 1n Georgia.
23 Q okay. And I don't suppose you're able to-- you're
24 not pr1vy to any additional mitigation evidence that was
25 developed after leaving the division, are you?
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1 A No.

2 Q That was -- what you just articulated was your

3 general summary of what you anticipated. Do you need a moment
4 to close the blinds?
5 (Dial tone.)
6 THE CLERK: we lost her somehow.
7 MR. MORRIS: I was wondering what she was doing.
8 Hold on. Let me find the number again.
9 (Pause.)
10 THE COURT: Go ahead, Mr. Morris.
11 BY MR. MORRIS:
12 Q where we last left off, Ms. Record, what you just
13 articulated or described was your general understanding of
14 what the mitigation presentation would encompass, correct?
15 A I don't -- I'm not privity to anything that
16 happened, you know, after I left the division other than I was
17 still in the office, and so I heard the rumor pool.
18 Q Ms. Record, can you see if you can adjust your phone
19 or whatever 1s close to you, because we're having difficulty
20 hearing you on this end now.
21 A okay. Is that any better?
22 Q Much.
23 A okay. okay.
24 Q Did you expect or were you of the belief that
25 witnesses would be called to testify about the mitigation
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1 evidence that had been cultivated to that point?

2 A Yes.
3 Q would you have had an expectation, had you remained
4 1n the division, that you would have been calling those
5 witnesses and examining them in a trial?
6 A Absolutely. Specifically, we -- we spoke to
7 Dr. sesta with respect to his reviewing Dr. Delcher's medical
8 records as he prescribed the Ritalin to Mr. Hilton. And I was
9 expecting that -- that -- that Dr. sesta would be called 1n
10 reference to that, as well as other mitigating witnesses, yes.
11 Q would you have expected that it just be presented to
12 the Jury 1n a PowerPoint presentation?
13 A No. It was my understanding that we would be hiring
14 and having witnesses, experts called, yeah.
15 Q Have you attended any classes that recommend that
16 you rely on a PowerPoint presentation for penalty phase?
17 A I don't recall anything about a PowerPoint
18 presentation.
19 Q ultimately, you left the division. why was it that
20 you left the division?
21 A I was miserable and could not get along with Ines.
22 I wanted to get back to doing felony trials.
23 Q Any particular reason that it was difficult to get
24 along with Ms. Suber?
25 A well, from my point of v1ew, I -- I guess I could
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1 talk to the fact that maybe I was a little too sensitive. But
2 it seemed like Ines was never happy or satisfied with anything
3 I was doing, and I was never able to sort of air any
4 gr1evances or work through it or, you know, have any real
5 understanding of what I needed to be doing, and it it just
6 became unworkable. I was very, very unhappy in 1n that
7 position after a while.
8 Q so how did you extract yourself?
9 A well, first I went to Nancy to discuss how we might
10 be able to fix it, and that was really the death knell,
11 because that didn't go over too well with Suber. And then
12 after that, we just it was absolutely unworkable. Maybe a
13 month after that I said, "You have to get me out of this. I
14 can't do it anymore."
15 Q so meaning that you tried to fix the situation by
16 going to Ms. Daniels; but when Ms. Daniels suggested to
17 Ms. Suber that something was broken or needed to be fixed,
18 Ms. Suber was not keen on that, and you were viewed the
19 turncoat and the outcast?
20 A Bingo.
21 Q Thank you, Ms. Record.
22 MR. MORRIS: Judge, I'll tender the witness.
23 THE COURT: Cross?
24 They are coming, Ms. Record. It'll be just a
25 second.
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1 THE WITNESS: Yes, Slr.

2 CROSS EXAMINATION

3 BY MS. (APPLEMAN:
4 Q was the Hilton case a case that you all brought to
5 the bring-your-own case seminar?
6 A I do not think so.
7 MS. CAPPLEMAN: one moment, please.
8 (Pause.)
9 MS. CAPPLEMAN: Nothing further, Your Honor.
10 THE COURT: Any redirect?
11 MR. MORRIS: NO redirect, Your Honor.
12 Thank you, Ms. Record, for your appearance.
13 THE COURT: All right. call your next witness.
14 MR. MORRIS: Judge, I do not have any other -- well,
15 I could call Ms. Bohanan, but the difficulty with
16 Ms. Bohanan is we've been provided with some additional
17 records that both Ms. cappleman and I need to review.
18 THE COURT: All right. so -- well, we don't -- we
19 don't need a break until 1:30. I see you have
20 Ms. Jamieson lined up at 1:30. Let's do something before
21 then.
22 MR. MORRIS: I can be ready with Ms. Bohanan. If we
23 can take an early lunch break, we can come back and be
24 ready at that point.
25 THE COURT: Okay. All right. If it will work for
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1 y'all, we'll break until -- it's about 11:45. we'll

2 break until 12:45. Does that work for everybody?
3 MR. MORRIS: Yes, sir.
4 MS. CAPPLEMAN: Yes, sir.
5 THE COURT: All right. Let's do that. You'll have
6 a witness ready then?
7 MR. MORRIS: Yes, Slr.
8 THE COURT: All right.
9 (Lunch recess.)
10 THE BAILIFF: All r1se. court 1s back 1n sess1on.
11 THE COURT: Be seated, please, folks.
12 call your next witness, Mr. Morris.
13 MR. MORRIS: Defense would call Merribeth Bohanan.
14 THE COURT: Face the clerk and be sworn, please.
15 whereupon,
16 MERRIBETH BOHANAN

17 was called as a witness, having been first duly sworn, was

18 examined and testified as follows:
19 THE COURT: Have a seat. slide up to the
20 microphone, please.
21 DIRECT EXAMINATION

22 BY MR. MORRIS:
23 Q Could you state your name for the record, please,
24 ma'am.
25 A Yes. It's Merribeth, M-e-r-r-i-b-e-t-h, it's one
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1 word. Last name, Bohanan, B-o-h-a-n-a-n.

2 Q All right. And, Ms. Bohanan, how are you presently
3 employed?
4 A I'm an attorney with the Department of Business and
5 Professional Responsibility.
6 Q How long have you been admitted to practice law 1n
7 the state of Florida?
8 A May of 2000, so 18 years.
9 Q How long were you at the office of the Public
10 Defender?
11 A A little over 10 years, from 2001 to 2011.
12 Q If you could describe for me what were your duties
13 with the office of the Public Defender, just kind of a
14 chronology --
15 A sure.
16 Q -- of what your -- what your assignments were during

17 your period there.

18 A Yes, sir. I was a year 1n county court. Five years
19 1n felony, mainly with Judge Francis and Judge Dekker. Then I
20 went down for a year or two as county court supervisor. And
21 then I went back up to felony for a short period of time and
22 then went into the capital Division.
23 Q Do you recollect when you went into the Capital
24 Division?
25 A No, not specifically. I know I was in the capital
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1 Division but was not on the Hilton case until October of I

2 guess it was 2010, before the trial in January, February of
3 '11.
4 Q okay. so you ended up com1ng into the capital
5 Division, you said October?
6 A Yeah. Here's what I remember. The Tampa training,
7 I -- I was at -- not with the team, but I was thinking of
8 go1ng into the capital Division or doing some of those cases.
9 I did a murder case, I'm wanting to say in that summer of 2010
10 in wakulla. And then it was decided Nicole Jamieson would go
11 into the capital Division.
12 she was there a very short time. So then when she
13 left, I was the next logical choice. I had done Life over
14 Death and Death is Different. I had participated in that
15 Tampa training, all prior to being put into the division.
16 Q Speaking of Ms. Jamieson and yourself, were you both
17 being evaluated for whether or not they wanted you or wanted
18 to ass1gn you to the capital Division?
19 A well, Nancy, I think, wanted whoever was capable and
20 willing and she thought competent. Ines kind of, in my
21 opinion, pitted us against each other and would kind of create
22 situations where we should compete for her to determine who
23 she thought was best.
24 Q Any particular circumstances that you can recollect?
25 A Yes. we had gone to a case management for the
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1 murder case 1n wakulla. And after we were having lunch, and

2 Ines turned to us and said, "Do your closing argument if you
3 were to be given it in this case."
4 And so I had thought about it and started with, you
5 know, "Mi amor, m1 amor," something the man said right after
6 he stabbed this woman. "what have I done?"
7 And so Ms. Jamieson had not thought of it. she was
8 more of a writing kind of person, an appellate person. so I'm
9 sure she would have had a very eloquent closing. she was a
10 good lawyer. But I just had the dramatic flare and was able
11 off-the-cuff to come up with that, and so I was given the
12 closing then at that lunch.
13 Q okay. You said that's one of the kind of
14 competitions, I guess, that was utilized as a tool to decide
15 who 1s going to win out in order to get into capital?
16 A Yes.
17 Q so the Tampa training occurs, Ms. Jamieson was 1n
18 initially, but her stint was short lived, maybe a month and a
19 half or so. And you entered into the capital Division,
20 replacing her, somewhere around October of 2010.
21 A That's -- I -- I don't know. I really can't tell
22 you. what I know is that I remember that I was in the
23 division and working other cases. I was specifically not
24 working on Hilton.
25 And once the judges changed -- the judge had been
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1 Judge Lewis, and when the judges rotated and it became Judge
2 Hankinson, it was apparent that then it was going to actually
3 be a trial 1n January.
4 My understanding from Ines was the parties had
5 agreed to that date, but it was for sure tentative. My
6 opinion, no one thought that was really going to go to trial
7 in January for real. But when-- the judges changes and it
8 was going to be a trial, then it was all hands on deck, and I
9 was brought into the case.
10 Q so once -- once Judge Hankinson had entered the
11 division, the matter was set for trial, it was everybody needs
12 to focus. And then you were brought into the division and
13 made part and parcel of the team?
14 A My recollection is I was part of the capital
15 Division before that, but I had not been on the Hilton case.
16 Q I -- I understand. I got it now. once everybody
17 starts working in the direction of prepar1ng Mr. Hilton's case
18 for trial -- let me ask a question kind of going back in time.
19 Had no one been prepar1ng Mr. Hilton's case for trial?
20 A well, I was on other cases. I know that Prim,
21 Angela Prim was a huge case I did a lot on. Lemon Lane, I did
22 a lot on. The Richardson brothers case.
23 There was a lot of things go1ng on, and I was
24 involved with those, as I said, and not the Hilton case, so I
25 don't know exactly what had been transpiring. what I know is
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1 when I got on, I went to Tracy Record to find out what she had
2 because I was told by Faye Dorn, the administrative assistant,
3 she had all the materials. so when I went to Tracy, I said,
4 "I need," you know, "your files." And she said, "well, I
5 never had discovery for Hilton."
6 Q so Ms. Record had not been provided with discovery
7 for Hilton, at least according to her?
8 A That's what I remember, that there was no such
9 thing. so when I started looking, Faye told me, "well, you
10 can go to the storage room."
11 so I went to the storage room 1n appeals, and I saw
12 this -- just discovery everywhere. And it was literally,
13 like, on copiers, on the ground, like in boxes, like, just
14 everywhere.
15 Q Any rhyme or reason to the organization?
16 A No. so that's why, if there was anything 1n my
17 office, that was what I had collected and tried to make sense
18 of. There was a lot of duplicates, I remember, of the same
19 number of discovery. so I -- I never had a complete set.
20 what I had is what I had gotten out of this room.
21 Q How big of a storage room are we talking about?
22 A It was size of the jury box. I'm not good at
23 dimensions, but about that size. It had copiers and
24 bookshelves.
25 Q And I've got to guesstimate that in order to
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1 organ1ze something like that, it would be a pretty large task

2 1n and of itself?
3 A Yeah. As I remember, I couldn't dedicate days to
4 just doing that, even though I wanted to. so I would, I
5 think, every couple of hours every day, try to, okay, let me
6 see what I can make heads or tails of and what's maybe
7 relevant to what people are doing right now.
8 Q what was the hierarchical structure, and who was 1n
9 the team -- based on your perception -- you've had the benefit
10 of sitting here for two days, and everybody's perception seems
11 to be different. what was your perception?
12 A Ms. Suber was definitely the linchpin of everything.
13 she had access to everything. she knew all the information.
14 she, in my opinion, divvied out things as she saw fit.
15 so, to me, she was the only one that had the most
16 information. Maybe next would be Betty, and then next would
17 be chris. But, to me, it was pretty clear that the second
18 chair was not privy to information, and I would say on
19 purpose.
20 Q why would you say on purpose?
21 A well, because there was-- by the time I got there,
22 I knew that Ms. Record had left and Mr. Been had left, partly
23 because they had spoken to Ms. Daniels. And if you spoke to
24 Ms. Daniels, then you were seen as being disloyal to Ines. so
25 if you were disloyal to her, then you were screened out from
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1 information.
2 so I knew that I could either not speak with
3 Ms. Daniels, if I took this position; or if I spoke with her,
4 I had to do it surreptitiously. You know what I'm trying to
5 say.
6 Q I understand the word, yes, ma'am.
7 A without her knowing. And so 1n a sense, I became
8 like an informant at some point during the Hilton case to
9 Ms. Daniels because I was concerned.
10 Q well, tell -- tell me the -- okay. so everything
11 runs through Ines.
12 A Yes.
13 Q was Mr. Friedman a member of the team at that point?
14 A okay. Here is what I remember. I remember
15 Mr. Friedman working on a tool mark motion. I think then he
16 got some other motions dealing with FDLE things. And I was
17 asked to assist him with these. And I would go back to his
18 office, and he would tell me what he was doing or what
19 articles he had read and what experts; and, you know, I would
20 get involved with that.
21 However, that was all I remember his initial
22 interaction being, and he was very frustrated that he didn't
23 have autonomy, and he was still beholden to Ines and would
24 have to have meetings with her to find out numbers and names
25 and who she had spoken to and what was set up for when.
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1 Q So when -- when you come in, he's in the team, so to

2 speak; but he's specifically tasked with evidentiary 1ssues,
3 research issues. This was not a circumstance that,
4 Mr. Friedman, you're in charge of the penalty phase, and
5 you're working on that. He's-- that was not where we were
6 at, at that point?
7 A That's not -- that's my memory, yes. And that when
8 that happened is when Nancy got involved and started to come
9 to meetings and whatever because she felt that there was an
10 1ssue, and she needed to do something. so her
11 Q Let -- let me stop you there and back up. so you
12 enter into the team. Ms. Suber is first chair. You are
13 second chair.
14 A supposedly.
15 Q And was Paula saunders involved at all?
16 A she was not. what's funny is I asked Ms. Daniels at
17 one point to include Ms. saunders, because historically I knew
18 that she had done cases with Ms. Suber, and I thought they
19 were friends and got along.
20 Q Meaning that you perceived that Ms. Suber's
21 relationships, her personality, it was creating a problem for
22 the team to be able to move forward?
23 A Yes.
24 Q And so you made the suggestion to Ms. Daniels that
25 because of your observation of Paula saunders' and Ines
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1 Suber's relationship, maybe the insertion of Ms. saunders

2 would help temper things or make things go more smooth?
3 A Let me be clear. Mr. Friedman and Ms. Suber were
4 not meshing well. I, being a younger lawyer and less
5 experienced than Mr. Friedman, felt like I was between the two
6 of them. But I couldn't really be between the two of them
7 because I sat right next to -- my office was next to
8 Ms. Suber. And, to me, my job was to make sure I was still
9 involved with what was happening with the case.
10 so I could not, even if I had wanted to, openly side
11 1n my opinion with Mr. Friedman, whether I agreed with him or
12 not, because this would be a problem then with my having
13 information about the case.
14 Q At the point that you entered into the case, was
15 anybody -- who was in charge of the guilt phase? who was in
16 charge of the penalty phase?
17 A To me, Ines had both aspects clearly 1n her hand.
18 And that was the problem for Mr. Friedman, was he wanted some
19 autonomy on whatever he was going to work on.
20 Q Irrespective of what the assignment was, he wanted
21 to be able to think and do for himself?
22 A Yes.
23 Q And that was his frustration. And I take it that
24 was the friction point, or one of the friction points with
25 Ms. Suber?
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1 A Yes. And I witnessed that. That's not just

2 hearsay. I witnessed that. And I know that from Ms. Record,
3 and I know that from Steve Been, from having been told that.
4 I was very clear-eyed when I went to the division about
5 Ms. Suber. And let me say, she was a good attorney. But if I
6 was going to do my job, I had to be able to work with her, and
7 that meant agreeing with her to some extent.
8 Q so take me from there. You --
9 A so at some point I did go to Ms. Daniels, and I
10 said, "Hey, I would like to concentrate on the penalty phase.
11 I know these witnesses. I've gone to Georgia with Betty."
12 okay. I took leave and went with her. I was on a
13 lot of those trips. I know these people. I saw them or I met
14 them. so -- and I'm good with people, so let me handle the
15 lay witnesses and help with the penalty phase and separate
16 these folks. okay? And bring in Paula to assist Ms. Suber.
17 That way, I don't have to pick sides. I don't have to be one
18 against the other. I can be squarely over here. she can be
19 squarely over here with Ms. saunders. someone will be there
20 to support Ines, and that was actually my recommendation.
21 Q And was Ms. Daniels respons1ve to that?
22 A she was. she thought it was a great idea, and I
23 think she maybe made it seem like it was Ines's idea to bring
24 her in for the confession tapes or his talking during
25 transport, and that she could handle that legal issue on a
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1 motion, which she did.

2 The problem 1s she quickly became aligned with
3 Mr. Friedman, and now there's two lawyers against Ms. Suber,
4 at least in her mind, I would assume, and so that exacerbated
5 the situation instead of alleviating it.
6 Q when you say aligned with Mr. Friedman, how do you
7 mean that?
8 A I didn't see it personally. But 1n the e-mails and
9 such, there would be these late-night things, and Ms. Suber
10 would have these rambling e-mails. And one or both,
11 Ms. saunders or Friedman, would respond. And they obviously
12 seemed to be aligned either -- just of the same opinion about
13 things and coming back the same way to her; or that they were
14 coordinated. I don't really know. But, to me, it seemed like
15 one side against the other.
16 Q was it a debate over, you know, strategy of the
17 case? or was it a debate over personality? Ego?
18 A I -- I don't know because I really I never
19 responded to one of those. And I -- I tried to just look at
20 the substance of things as much as possible because I was
21 concerned about the state of the case and where it was and how
22 prepared it was.
23 I guess it was -- I guess I would have to say it was
24 some of both. some was how people perceived each other and
25 how people felt they were being treated, and I think some was
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1 legitimately a difference of op1n1ons on 1ssues related to the

2 case.
3 Q Let's keep walking forward chronologically in time,
4 and then I'll come back to some other compartments and
5 subjects.
6 what's the next thing that happens or occurs 1n
7 1n who's responsible for what in the case?
8 A well, I advocated to try to have the lay mitigation
9 witnesses. It seemed that it was com1ng out that Rob was
10 going to be handling a lot of the expert witnesses for the
11 mitigation. so it was headed in that direction where he would
12 be more involved with the penalty phase.
13 so I thought a good spot for me would be those
14 witnesses that were identified when he was a child. I had
15 been at the videotape of Ms. Rowe (phonetic) in Tampa.
16 Betty just knocked on doors and said who is the
17 woman who -- or the person who has been here the longest? And
18 found her. And she talked about his head being cut open as a
19 u-shape and towel after towel and his being gone for months to
20 the hospital.
21 The hospital burned down in Tampa, so there was no
22 records. But -- so I -- I was very familiar with the
23 mitigation witnesses and the lay witnesses. I had prepared to
24 see if they would honor a Florida subpoena, the witnesses,
25 what they needed for work; if we needed to find the material
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1 1n Georgia and then subpoena them in Georgia to have an

2 effective subpoena. I had laid all that foundation work and
3 was doing that.
4 Q so you were task oriented, focused on the penalty
5 phase, the witnesses being physically present, providing
6 testimony that provided the shape or the story of Mr. Hilton's
7 life?
8 A Yes, that's what I thought was a good thing for me
9 to do, and I was trying to advocate for my being given the
10 authority to do that.
11 Q You're still reporting to Ines, though--
12 A Yes.
13 Q -- at that point?
14 A Yes.
15 Q Ines still has control, if you will?
16 A Yes.
17 Q what's the next progress1on 1n terms of what happens
18 to the team?
19 A well, there were -- at some point, it was clear
20 there was -- people were not speaking to each other and/or
21 there were these e-mails and discord. And Nancy had a
22 meeting, and that's where she said Rob will be doing the
23 penalty phase. Ines will be doing the guilt phase.
24 Q Do you know when chronologically that happened?
25 A I -- no. I would say November.
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1 Q November pr1or to the trial?

2 A Yes.
3 Q so roughly three months, 90 days pr1or to the trial?
4 A Yeah, or less.
5 Q so at that point Ms. Daniels comes in, lowers the
6 proverbial boom and says, "No, Mr. Friedman is handling
7 penalty. Ms. Suber is handling guilt." And then were you
8 who were you dealing with and reporting to?
9 A Both still. I had -- there were depositions we were
10 doing, for some reason, of people that, to me, were probably
11 not going to be listed as witnesses. so I had advocated that
12 we talk to Ms. Cappleman and get an idea of which of the 600
13 were go1ng to be witnesses. I don't know if anyone ever did
14 that.
15 I thought I had a good relationship with her. I

16 offered to do it. I thought she would tell us at least some

17 of them. And so, to me, that seemed like a good idea, instead
18 of deposing all these people that, to me, seemed pretty
19 tangential. But I was g1ven the assignment to set all these
20 depo's for, to me, people that would have been category
21 whatever you call it, 3 or c or whatever, but pretty
22 inconsequential.
23 So I didn't really understand the strategy of
24 listing a bunch of depo's of people that weren't probably
25 going to be called as witnesses, and I said such.
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1 But I was told to do it, so I did. That was what I

2 was doing for the guilt phase. I did get the PET scan,
3 transport, and all that arranged for Mr. Hilton to be -- have
4 that test done and coordinate with Dr. wu for him to be able
5 to then evaluate the scan. I'm sorry.
6 And -- I'm sorry. And I did talk to Rob about
7 witnesses, and I thought I had picked those ones that Betty
8 had listed, three or four childhood, three or four juvenile,
9 three or four military, blah, blah, blah, and that I had said,
10 "I will contact those." And I had started to contact them,
11 when at some point all of a sudden I started to get calls from
12 people, irate, that this guy was calling them. They didn't
13 know who he was. They didn't know what happened to Betty or
14 me, and that he was threatening them, and that they weren't
15 com1ng now.
16 Q okay. Let me -- let me unpack that a little bit.
17 so you, through collaboration with Betty, the mitigation team,
18 if you want, for penalty phase, has identified a series of
19 witnesses, lay witnesses that should be called in conjunction
20 to whatever experts are going to be called, to tell the story
21 of Mr. Hilton's life and to be able to properly present the
22 mitigation in conjunction with whatever the experts'
23 mitigation provided in addition?
24 A Yes. I specifically remember a meeting, I think it
25 wasn't just us. It was a meeting with everyone, and then
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1 there was a meeting with me and Rob and Betty where there was
2 that big witness list; and we all pared it down, the three of
3 us, to the ones that we thought we were going to use.
4 Q You, Rob Friedman, and Betty Fuentes pared it down
5 to the list of witnesses that Ms. Fuentes recited in the
6 courtroom yesterday?
7 A That's my memory, yes.
8 Q That was the understanding amongst the parties as to
9 exactly -- that was the way that the penalty phase was going
10 to be presented to the jury?
11 A Yes. And I know, I had Faye -- or someone did
12 send them subpoenas, because I talked to them. "Did You get
13 them? will that suffice for you? Do you need help with
14 transportation?" You know, those kind of conversations I had
15 with witnesses. And they were on board when I talked to them.
16 Q Roughly-- help me out. we've got a trial that's
17 right around early February. Give me a -- can you g1ve me an
18 idea on time?
19 A I know it was before the holidays because I wanted
20 to -- I specifically said, "I think we need to talk to these
21 people before Thanksgiving to make sure that -- when they are
22 going to be available in January and to tell them -- you know,
23 get them the trial dates and all that."
24 Q You had made contact with those witnesses
25 individually in making certain that the -- I guess the kinks
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1 are ironed out, to make certain of their availability, and any

2 logistical issues for the purposes of testimony?
3 A I remember that. And then just last night 1n my
4 closet I found some stuff I guess I had that shows I left a
5 message for this person, this person, this person, and these
6 people said they are fine with a Florida subpoena, and they're
7 com1ng. And so, yes, I remember, and I found something that
8 confirms that idea.
9 Q Then you started to mention this a moment ago, that
10 all of a sudden you just start getting phone calls saying that
11 somebody had contacted them, and he was making threats or
12 angry or abusive verbally and that they weren't coming.
13 Explain that a little bit more.
14 A Yeah. I -- I know Betty did, too, and she probably
15 got more than I did. I might have only gotten one or two.
16 But I don't know about verbally abusive. They -- they felt
17 that he was threatening them.
18 Q when we're saying "he," who are we talking about?
19 A My understanding is they called and said, "A lawyer
20 called me. His name is Rob Friedman, and I don't know who he
21 is, and he's talking about you know, asking me all these
22 questions; and saying that if I don't show up, then he's going
23 to subpoena me in Georgia, and I'll be in contempt of court."
24 or, you know, like a threatening kind of stance, which, it's
25 really hard to get people to come testify, period, much less
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1 1n a case like this.

2 Even if they knew him and had no problems with him,
3 and could never see him doing this or anyone else, who wants
4 to go to a murder trial?
5 Q Meanwhile the information may be legally accurate
6 of, if we 1ssue you a subpoena and you're served, you can be
7 held in contempt if you don't show up, maybe not the best
8 presentation to have the person on the defense team.
9 A well, I never got the go-ahead to have them be
10 determined material witnesses in -- in Georgia and to have
11 them served in Georgia, so I don't know what effect our
12 Florida subpoena had.
13 so I was trying to play n1ce and say, you know, will
14 this suffice for your work? And I think I just assumed that
15 they would assume that it was legally sufficient and that they
16 would attend.
17 I don't know that I made any assertions one way or
18 another, or I still don't -- today, I don't have it clear 1n
19 my mind if they could be held in contempt in Georgia from a
20 Florida subpoena.
21 Q understood. Now, take me to the next chronological
22 step of any alteration or shift in the defense team.
23 A well, I couldn't really talk to Rob. when -- I

24 remember an inordinate amount of time of my being involved

25 with meetings about beads and meetings about tool marks and
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1 meetings about bones and all these things. And every time I
2 said, "why are we doing this? This is -- this is not the
3 1ssues. These are not relevant."
4 okay. I was given a motion to write on the mov1e
5 Deadly Run, which I didn't think was ever going to come in.
6 so, again, I said, why don't I just call Ms. cappleman and see
7 if she's going to bring this in? I think I did, to get her
8 position on the movie. And she said, "I'm not bringing that
9 in." so I don't know why I spent a day or whatever it took me
10 to write this file this motion because it wasn't relevant
11 to the case.
12 Q well, and so I don't forget, initially, the mov1e
13 1ssue, the defense team had won a motion to preclude its
14 introduction. Accurate?
15 A Yes.
16 Q And then the defense team, through its mitigation
17 presentation in the penalty phase opened the door, and it came
18 in?
19 A I don't even know about that.
20 Q That's true. You were not in the courtroom at that
21 point.
22 A No. closing was supposed to begin Tuesday,
23 February 15th. And that was the morning I had a conversation
24 with Mr. Hilton about Betty's leaving, and that was my last
25 final -- I guess I came back down and let him know I was
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1 leaving the case, and I filed a motion with the Court

2 withdrawing.
3 Q But your point on -- why are we focused on this --
4 lS that you were tasked and needed to be focused on penalty
5 phase, mitigation witnesses, and you're questioning 1n your
6 mind or verbalizing, "why are we doing this? why am I focused
7 on this?"
8 A well, not just me. I thought, why did we spend two
9 weeks at FDLE looking at evidence? I mean, it was obvious the
10 man was guilty. It was going to be very obvious with the
11 mountain of DNA. It was going to be obvious with all of the
12 witnesses. And so I didn't understand why we were spending a
13 lot of time and energy and money on things that, to me, were
14 just embarrassing to the intelligence of the jurors, to try to
15 say that somehow this man had nothing to do with this, and
16 it's all made up by the State or that they can't prove it. I
17 mean, that's --
18 Q And when you say that you weren't able to talk to
19 Rob, how do you mean that you weren't able to talk to
20 Mr. Friedman?
21 A He -- I -- I would talk to him substantively, and I
22 thought we got along very well on the things I was to help him
23 with, and I think he was very competent at the legal issues
24 and the evidentiary issues.
25 what I'm saying is I didn't -- when it came to
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1 strategy, he didn't verbalize that with me. I didn't feel

2 like we were a team 1n a sense. I would say, "oh, so I'll
3 take these witnesses," and I would start to do this. And, to
4 me, if no one says anything, that's a yes. You don't then
5 start calling the same people that someone else was go1ng to
6 be calling, particularly without talking to the person.
7 so I would think we had a meeting of the minds about
8 certain things when I could get him. He just wasn't a meeting
9 kind of guy. He wasn't a talking kind of guy. He was like an
10 appellate lawyer. He wrote, that's what he did.
11 so I would be assum1ng we're doing something, and
12 then I went to do that, and then I would find that there was
13 activity being done by Rob or other people that were not 1n
14 line with that.
15 Q so we get to-- I guess we get to the trial. And
16 tell me about your observations of what's happening in the
17 trial, or in the the months leading up to-- or in the
18 weeks leading up to the trial.
19 A well, I was still concerned that I didn't know
20 exactly what our defense was. I spoke to Nancy Daniels many
21 times, and my concern was that we didn't -- we weren't
22 prepared.
23 we didn't know who was go1ng to be called. we had
24 not deposed, probably, the people that should have been
25 deposed; and we had deposed people that, to me, like I said,
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1 were not relevant. we had spent all this time on things that
2 I thought weren't relevant.
3 I was concerned that -- I didn't think Mr. Hilton
4 had been spoken to about his options. I didn't think it was
5 my place to do it. I wasn't the lead, and I didn't really
6 know all of the evidence.
7 But what I had seen -- because I did go to FDLE and
8 I did sit there with the DNA person, and I was very active and
9 listened to a lot of evidence, and it was done there for me.
10 And I thought at that point, we should go talk to
11 him and tell him that this 1s going to come in, and this 1s
12 obviously going to, to me, be overwhelming evidence of guilt,
13 and I recommended that he plea, and we have a penalty phase.
14 Q when you say that you recommended, how -- how did
15 you do that?
16 A I recommended it at team meetings. I recommended it
17 to Ms. Daniels. I didn't know that there was any case where
18 that had been done. I had never heard that, but I just knew
19 it was a very cold response when I had brought it up.
20 so my other idea was, okay, well, why don't-- the
21 GBI people have to come to introduce the evidence, so why
22 don't we introduce, then, his prescriptions of Ritalin and
23 Effexor. This wasn't just Ritalin. The Effexor, as I
24 remember from the toxicologist, was a big problem as well. It
25 was the combination of those.
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1 He was only sanctioned for one, but the Effexor was

2 a big deal, too, as I remember. And so the -- I wanted to
3 have, 1n the guilt phase, since the officers were go1ng to be
4 here, to have them introduce the medication. And I think I
5 had prepared a subpoena for that correction officer, or GBI
6 people, I think it was, and was ready to contact them and let
7 them know, hey, we are going to ask you to talk about the
8 contents of the van, and I think there was a black bag or
9 something that he had, and the medication was in there.
10 Q In other words, you're going to start to weave or
11 inject a forecast of what's to come?
12 A Yes. And their memory of how he presented at the
13 time. Because my understanding is he was very manic. He was
14 not the person I met in 2010.
15 The person I met was on, I think, Thorazine and was
16 very docile and didn't appear to want to fight anything from
17 what I could tell. so that's why I was pretty adamant, has
18 someone spoken to him?
19 And I specifically asked Ms. Daniels, "can you
20 please verify with Ms. Suber, because I have asked her, and
21 she won't answer me, as to whether she has talked to him about
22 his options and explained particularly the DNA evidence to
23 him."
24 Q Do you know whether that ever occurred?
25 A I do not. I don't believe it did. Because when I
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1 saw him, he would ask me about evidence and about particular

2 things and told me he had never seen the discovery, and no one
3 had ever gone over it with him.
4 Q And let-- let's-- while we're on the topic,
5 obviously, you met with Mr. Hilton on occasion.
6 A Yeah. I -- I can't remember why I went. I was
7 it was always for a specific purpose, because I had just
8 assignments, go do this, go do that, work on this one thing.
9 And so I think I was supposed to go and ask him something or,
10 you know, g1ve him something. It was very limited.
11 one time I remember going with Betty, and then there
12 was one or two other times I went myself. But it was for,
13 like I said, a very short amount of time and for a particular
14 purpose.
15 Q During your individual interactions with Mr. Hilton,
16 did you ever discuss what strategy should be utilized or
17 employed?
18 A No, Slr.
19 Q Did you ever glean from Mr. Hilton that he had a
20 particular strategy of, as it's been suggested, deny
21 everything, demand strict proof, scorched-earth type of trial?
22 A No. And my -- my understanding of when that
23 happened was when he was 1n Georgia and manic.
24 Q when he was manic?
25 A Yes. And to me that discussion never happened once
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1 he got to Florida as far as I know. And I was very concerned

2 and adamant that that do happen, as a trial attorney, because
3 I wanted to make sure he was on board and knew that this 1s
4 what was com1ng. And I, you know, I just -- I'm kind of a
5 get-along and not have to waste a lot of people's time and
6 money kind of person. If I could avoid a trial, I always did.
7 Q Let's back up. Talk to me a little bit about
8 Ms. Suber's stability from the time that you entered into the
9 picture to the point of trial in terms of your observations.
10 A well, I didn't really know her before. I was busy
11 doing other things in misdemeanor and felony and whatever.
12 I just would come down and see murder cases, the
13 couple that happened and went to trial, and I was very
14 impressed by her. And she had a good reputation of being very
15 thorough and of doing good work.
16 And I was close to Ms. Fuentes over the years, and
17 she was impressed with Ms. Suber and her caliber of work. she
18 always had been difficult to work with, though. But I saw,
19 like, for instance, if I would go into her office to talk to
20 her about something, sometimes she would say, "Hold on," go to
21 her purse and take some medication, and then comment about it,
22 about, "oh, it's been one of those days."
23 Now, I don't know if it was an asp1r1n or what it
24 was, but she would, like, make a joke about, "oh, before you
25 say anything, let me", you know, "have my pill," or whatever.
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1 So there was that, and then I had seen her in court,

2 to me, not do well, not have material she needed, not have
3 them 1n order, not be very focused in her speech or --
4 Q show up late?
5 A I didn't see that, but I don't -- I kind of
6 remember, maybe, that. But, yeah, I -- I remember, like, I'm
7 holding the bag in a way, and I don't have all the
8 information. And being embarrassed, I remember being
9 embarrassed for our office.
10 Q You've got a lawyer who is in front of a judge and
11 1s unprepared to be able to address whatever issue it is
12 that's before the Court?
13 A Yes. And so I can't tell you if it was that she was
14 stressed or that she was tired or that-- I have no idea. But
15 that was not what I had known of her or had seen her
16 performance previously.
17 Q we get to the portion the trial of the case, the
18 guilt phase and the penalty phase, and there's an implosion of
19 sorts is the best way that I can describe it. But describe
20 for me what the dynamic is, what happened and how did it
21 unfold during that two-and-a-half, three-week period.
22 A well, you know, to me, with jury selection, we
23 had for some reason, I remember being in a small room off
24 of the courtroom. I guess we took them individually, maybe,
25 for certain things, for death qualifying. I don't know.
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1 But I remember that, aga1n, that we had questions

2 that were not asked, I thought should have been asked; and
3 things that were said or done that I didn't think made sense
4 1n JUry selection.
5 Q By whom?
6 A By our lawyers. I was not involved because there
7 were so many lawyers. so I -- I don't remember asking any
8 questions, so I had to just write things.
9 Q was Mr. Friedman involved in jury selection?
10 A He was. I think he was involved with the death
11 qualifying part, and that was in front of the -- the whole
12 panel, and that was 1n the courtroom.
13 Q so he wasn't involved in the entire JUry selection
14 process; he was only involved 1n a portion of the process?
15 A That's my memory.
16 Q Yes, ma'am.
17 A what I do remember 1s that the -- the judge had
18 determined that it was not a cause -- enough for cause if a
19 juror knew that Mr. Hilton had been charged with murder in
20 Georgia; that if they didn't know he had pled, then that was
21 not a cause challenge.
22 Q who was responsible for the challenges or being
23 the the mouthpiece, if you will?
24 A I want to say it was Paula. It was either Paula or
25 Ines. I remember sitting at the -- at the table and being
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1 appalled that we had jurors left on that knew that Mr. Hilton
2 was charged with first-degree murder in another state, and
3 that they exhausted their peremptories. The judge gave them
4 more, and they didn't use those to strike those jurors.
5 And that afterward, I was like, what are you doing?
6 why would you leave people on the panel that know the man was
7 charged with murder somewhere else?
8 Q so they moved for cause to get rid of a juror, the
9 judge denies the cause challenge; but at their request, they
10 ask for additional peremptory challenges and don't exercise
11 them on the very witness that they wanted to remove -- or,
12 excuse me, JUror that they wanted to remove?
13 A To me there was more than one that was left on the
14 panel that knew he was charged with murder in another place.
15 I don't -- I don't know how you can be fair with that
16 information.
17 Q was -- was there any delineation as to who was
18 responsible for preserving any error that the court may have
19 been making or may have made?
20 A well, I know I couldn't speak because there could
21 only be one lawyer, maybe, talking, I think, was the rule. so
22 it was either Paula or Ines.
23 And I remember going afterward to Nancy and say1ng,
24 "we need to do something. we need to move for mistrial. we
25 need, you know, to tell the court something. we need to file
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1 something. I don't know what to do, but I think it's kind of

2 ridiculous that we're going to move forward with a panel with
3 at -- at least --" I thought it was two people that know the
4 man was charged with murder somewhere else.
5 Q The next thing that happens, based on your
6 participation in trial, was what?
7 A well, the trial starts, and it's apparent that--
8 you know, when we had jury selection, Mr. Meggs starts talking
9 about the witnesses said that the jury can know if they know
10 them and if they would have any bias one way or another with
11 them.
12 I start writing down these names. I'm told, "write
13 them down." And I'm thinking holy -- you're telling me we
14 don't know? so I'm, the best I can as he rattles off, writing
15 down these names.
16 I go back up afterward and type them and then start
17 trying to find 1n my little files from the storage room who
18 these people are. And so I compiled as much as I could, and I
19 think e-mailed it or gave it to the team to try to -- because,
20 obviously, we didn't know at jury selection who these people
21 were that were being listed as witnesses.
22 Q well, in -- in fairness, the State often will list,
23 let's say, 50 witnesses that may be potential witnesses, and
24 then they come into court; and during the voir dire process,
25 the court will ask, "who are the potential witnesses?"
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1 Sometimes the State is straightforward, sometimes they're not.

2 They may tell the jury 50 to make sure that the
3 defense keeps working overtime, when they really only intend
4 to call 25. But among the witnesses that were listed, were
5 there any that nobody on the defense team was familiar with?
6 A Yes.
7 Q so there were witnesses that it had to be discovered
8 what it was that they would testify to, what they knew, what
9 their role was in the case?
10 A Yes.
11 Q The trial proceeds from there. You were not a
12 participant in guilt phase, but were you present in the trial?
13 A Yes. I was there every day. It was streaming, and
14 people thought I was his nurse, because I was always around,
15 but I didn't say anything. so I thought that was funny. But,
16 yes, I was there every day.
17 The next big thing I remember is the whole
18 controversy -- I don't remember a correction officer, I meant
19 the inmate who supposedly had been given some information from
20 Mr. Hilton that the State thought was relevant and brought 1n,
21 and everyone responding like this was a bomb, and they had no
22 idea and being completely shocked and upset with the State.
23 And I didn't know the names, so I couldn't tell.
24 But, again, I knew Ms. cappleman, and she wasn't the kind of
25 lawyer who was a surprise kind of person. she's usually very
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1 thorough and measured, and I think she was in this trial. And
2 so there was a whole rigmarole around that.
3 I remember Betty being told to go see this person --
4 it was 1n Pensacola or wakulla, I forget and getting that
5 information.
6 Q Let me -- let me ask you about Ms. Suber's cross
7 examination of witnesses, specifically experts and things of
8 that nature.
9 It would be a fair characterization that she
10 objected to virtually every item of evidence that was
11 introduced during the trial?
12 A Yes.
13 Q During her cross examination, was her cross
14 examination of the witnesses helpful or harmful to the
15 defense?
16 A I thought it was harmful. I thought she brought out
17 information that the State was smart enough, in my opinion, to
18 leave out and to stay away from.
19 Q why why would it have been smart for the State to
20 have stayed away from?
21 A well, I think, why not just have a clean game? why,
22 you know, sully anything if you don't have to. There was
23 plenty of facts, plenty of evidence of guilt to not have to
24 sway into anything else.
25 one example was, at several campsites there were
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1 dogs that were beheaded. This was a whiff in the case that I
2 knew. No one particularly knew who this was attributed to.
3 It could have been said that this was Mr. Hilton and that it
4 was before the murders and, like, a practice or something. I
5 don't know.
6 But I remember that. You remember decapitated dogs
7 as being a part of a case. That was brought up by Ms. Suber
8 when the witness had not brought that up. You know, that's
9 one of those big things that I remember going, oh, my gosh,
10 why would we bring up this issue at all? You know, this is
11 one we would not want to go into and would not be helpful for
12 the JUrors.
13 Q Are there other instances that you can think of off
14 the top of your head that you had similar thoughts, concerns,
15 questions?
16 A I know every day I did, almost every witness. I was
17 just appalled, and I kept a list, and I told Ms. Daniels and I
18 wrote it -- I was told to write it all down and put it in my
19 notes for this very proceeding. And I remember telling
20 Ms. Daniels, "I feel like I'm the scrub nurse, and the doctor
21 is drunk and you're telling me to write notes for the
22 inquest. rr

23 Q So we now get to the point that guilt phase 1s over

24 and we're moving into penalty phase. Tell me what's
25 happening. obviously, there are several different things that
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1 occur.
2 First of all, when-- when was the decision to,
3 quote, streamline the penalty presentation made and by whom?
4 A I don't know because I found out the day -- it was a
5 Saturday, it would have been the 12th.
6 Q February the 12th?
7 A Yes. That Betty was 1n her office. she was so
8 excited she had found Mr. Hilton's first wife, the one witness
9 she had never been able to find. she got her. she went to
10 tell Rob about how excited she was and found out Delcher was
11 not com1ng.
12 when I saw Rob, my memory is I saw him in the hall
13 that day when he came back from talking to Betty, and he told
14 me, and I said, "oh. when was that decided?" And I guess it
15 had been weeks before, and he had not told me because he
16 didn't want me to tell Betty. And he had not told Betty
17 because he knew she was going to get upset.
18 Q Had you been of the impression up to that point 1n
19 time, to the Saturday prior to the commencement of the penalty
20 phase, that you would be examining live witnesses before the
21 jury?
22 A Yes. In fact, it was actually the Saturday before
23 closing. closing arguments started, my memory is Tuesday, the
24 15th.
25 Q closing of the guilt phase?
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1 A Yes. It was not finished yet.

2 Q okay.
3 A They were closing.
4 Q so the penalty team, if you will, is in gear and
5 mov1ng, and you're learning the Thursday before the closing
6 arguments that --
7 A Saturday.
8 Q The Saturday before --
9 A Saturday. Monday was a day off. Tuesday was
10 closing, and then I think there was going to be a couple of
11 days before -- 1n between the closing arguments and the
12 penalty phase.
13 Q But you're learning right then and there that the
14 penalty phase 1s not go1ng to occur in the manner that you
15 believed that it was go1ng to, and that Mr. Friedman had made
16 an executive decision on how the penalty phase was going to be
17 reshaped or presented?
18 A Yes. without any communication with me. Now, I did
19 know a lot of the witnesses that we had prepared were not
20 com1ng because they, as Betty said, had been killed.
21 Q Based on the friction or the animus that had
22 seemingly Mr. Friedman had injected into it?
23 A Yes. or watered down. Like the video of Ms. Rowe,
24 to me, was fine, perfectly good. she could have come and then
25 testified to that or shown the video or whatever. she was
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1 fine traveling from Tampa. But somehow it became this really

2 vanilla, generic, rote, boring, perpetuated testimony.
3 Q In other words, it wasn't the live presentation with
4 JUry appeal? It became a
5 A Right. Mr. Friedman told me, "well, why do we need
6 Delcher? we can just put in the papers. we'll just put 1n
7 that he was sanctioned."
8 I remember saying, "Rob, really? That's not the
9 same." "well, he's just going to lawyer up." "well, he says
10 he's not. And even if he does, ask him the question: Did
11 you-- did you see him?" "Yes." "Did you do this? Did you
12 go three months without seeing the man?" "Yes."
13 "Did he go from having a job for 10 years and being
14 a top producer to living in the woods and pulling his teeth
15 out with pliers? And was that after you gave him Ritalin and
16 Effexor over the FDA approved whatever? He can say, "I take
17 the Fifth," for every question, but bring the man. The JUry
18 has a right to hear that.
19 Q Obviously, you disagreed with Mr. Friedman's
20 tactics, his conclusions, his strategy. what -- what was your
21 response?
22 A I got out of every other person I was go1ng to do,
23 because I didn't want to have anything to do with the penalty
24 phase then because, to me, there wasn't a penalty phase.
25 Q so you declined to be a participant in the penalty
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1 phase?
2 A By that point, I had three or four witnesses, and I
3 said "Here's all my notes on them, Rob. I think you can
4 handle it." And he agreed.
5 Q Explain the interaction that resulted 1n you being
6 removed or dismissed from the courtroom.
7 A I don't remember being removed or dismissed from the
8 courtroom. Betty, Saturday, sends an e-mail, I think to the
9 whole team say1ng, "I don't think I can be a part of this."
10 or sunday, I think it was sunday.
11 we had the -- she found out saturday. sunday she
12 sends that. Monday there's a series of e-mails, conversations
13 with Betty over the phone. It's obvious she's not coming
14 back.
15 Tuesday, open1ng -- closing 1s supposed to start. I
16 get here, it's just me and Mr. Hilton and the bailiffs. And
17 for some reason he asked me, "where is Betty?" which was odd
18 because she wasn't always 1n the courtroom, but I guess we
19 were together a lot.
20 And I said, "well, she's not here." I think he
21 asked me ask couple of times, and I said, "she is not coming."
22 And you think I said, "she's left the case."
23 And about the time he starts to ask me why,
24 Mr. Friedman and Ms. saunders walk in. They ignore me, go
25 right to him. He asks them, "where is Betty?" And they say,
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1 "she's very tired." And, "she's been working a lot, and she
2 was overwhelmed." And I could see him be, like, really? I
3 mean, if anyone knows Betty Fuentes, like, for her to just not
4 be at work because she was tired or overworked was ridiculous.
5 Q so the information -- information that Mr. Friedman
6 and Ms. saunders are giving to Mr. Hilton is tantamount to a
7 lie?
8 A I mean, I guess maybe they thought she was
9 hysterical or overworked and lost her mind. I don't know.
10 But they used the word that she had a breakdown. And that was
11 when I went like this to them (indicating). I don't think he
12 could see me. And I was pointing to outside, like, go talk to
13 me out of the courtroom. They did not. They continued
14 huddled against him.
15 And so I went over and said, "Betty had a difference
16 of opinion with the strategy of the case, and she's no longer
17 1n the case." I remember because I was very measured with
18 what I said exactly.
19 At that point Ms. saunders comes to me, so close
20 that I put my hands up because I wanted the bailiffs to be
21 aware that I was not doing anything because she was right here
22 (indicating). Like, I couldn't believe this woman who was 20
23 years my sen1or was, like, basically up in my face. And she
24 screamed, "You get out of here. You're not his lawyer."
25 I said, "No, I think I am. I'm on the case. I was
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1 before you." And so at that point, I go-- I better go deal

2 with this. so I go upstairs to talk to Mr. Thomas. I don't
3 know why I went to Andy instead of Nancy, but I went to go to
4 talk to him. His door was closed. I went to my office. I

5 called the Florida Bar. I explained to them what happened in

6 detail. I was concerned about what I needed to do. To me, it
7 was a misrepresentation. And they said, "You corrected it.
8 Go tell the client you're withdrawing from the case. withdraw
9 from the case." so I did.
10 Q And so you're filing of the motion to withdraw or
11 notice to withdraw or however it was titled, was it your
12 intention that you were withdrawing yourself from the case?
13 A Yes.
14 Q or you were mov1ng to withdraw the entire office
15 from the case?
16 A No, no, no. No. I went back downstairs, I told
17 that to Mr. Hilton. I think I had prepared it, or I was going

18 to prepare it. I hadn't prepared it. And I went back -- as I

19 was going to go back up to talk to Andy, Rob came in and said,
20 "Andy wants to see you."
21 so when I got 1n with him, I said exactly what
22 happened. I told him I felt like I should withdraw. I had

23 already given my cases to Rob, and so I didn't have anything I

24 was doing. And Andy said, "Fine. Just -- just don't be

25 wordy." I said, "No, it's going to be, like, three
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1 sentences." And he goes, "well, fine. He has plenty of other

2 lawyers."
3 I said, "okay." so this was my decision because I
4 thought something unethical happened, and I didn't want to be
5 a party anymore to it, and so I filed it. No one ever, to my
6 recollection, barred me from the courtroom. I was not fired,
7 and I didn't do anything I thought that was unethical.
8 Q And you did not participate in the trial from that
9 point forward?
10 A That's correct.
11 Q You left the office of the Public Defender not long
12 after this, though.
13 A I -- yeah. I had, for 10 years, had been taught to
14 zealously advocate for people; and if I couldn't to say I'm
15 not the best lawyer for this case. And so I was really
16 appalled at the -- the lack of competence 1n this case. And I
17 didn't think I had much power since I had only done one-half
18 of one murder case, and these people had been there forever.
19 But 1n retrospect, I mean, I -- I probably should have done a
20 lot more in the case rather than less, leaving.
21 MR. MORRIS: Judge, may I approach the witness?
22 THE COURT: YOU may.
23 BY MR. MORRIS:
24 Q Let me show you what has been marked for the
25 purposes of identification as Defendant's Exhibit VI or v.
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1 Let me see if you recogn1ze that.

2 A I'm sorry, so let me finish. I left because of this
3 case, but I was there another 10 months. I finished out
4 felony mental health court. They were taking all the mental
5 health folks and putting them back in the divisions, and Nancy
6 asked me to try to get those people settled and back as best
7 as I could, resolve any of them, and so I did that. And I
8 started looking; and once I found something, then I went to
9 Department of Financial services.
10 Q Gotcha. If I can draw your attention to what has
11 been marked for the purposes of identification as Defendant's
12 Exhibit v and see if you recognize that.
13 A Yes. This is about -- shortly after this case, the
14 computer system in the office changed. John Tomasino left --
15 I guess it was before he left. But at some point they changed
16 the system, and they told me that everything wasn't going to
17 be there that had been there before.
18 so I remember taking, like, a flash drive or a z1p
19 or whatever they call them and getting my capital stuff off.
20 I can't find that now. But I guess I had printed some things,
21 and this was 1n a closet, what I found last night.
22 Q And what are they?
23 A Sorry. They were e-mails. I guess I had printed
24 out a bunch of the e-mails that had been sent in, I think,
25 January and February from mainly Ms. Suber to -- looks like
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1 Rob Friedman, Bill McLane (phonetic), myself. I know Paula 1s

2 on some of these, saunders.
3 Q And taking my word for it that the e-mails span from
4 September until February, September of '10 to February of '11,
5 what are the e-mails generally demonstrative of?
6 A These are -- I didn't -- I'm sorry, I don't want to
7 say I read them all because I didn't. I just kind of flipped
8 through them last night to make sure that they were what they
9 purported to be, and I didn't want to relive it. But I --
10 they appear to be some of the e-mails that were sent during
11 the trial by Ms. Suber to the team.
12 Q And various responses thereto?
13 A Yes.
14 MR. MORRIS: Judge, at this point I offer into
15 evidence what has been marked as Defendant's Exhibit II.
16 MS. CAPPLEMAN: May I review the exhibit?
17 THE COURT: v, I think, is the number that you used.
18 THE WITNESS: v. Yeah, just for the record --
19 THE COURT: You may retrieve them, Ms. cappleman.
20 THE WITNESS: some of these appear to be to me or
21 from me, and they are substantive, related to work
22 assignments.
23 (Pause.)
24 THE COURT: we're about due for a break if you need
25 a few minutes.
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1 MR. MORRIS: If we could do that, Judge. I think

2 that I'm finished.
3 THE COURT: why don't we take 10 minutes.
4 (Recess.)
5 THE BAILIFF: All r1se. court 1s back 1n sess1on.
6 THE COURT: Be seated, please, folks.
7 what's the State's position on the Defense Exhibit
8 v?

9 MS. CAPPLEMAN: No objection.

10 THE COURT: It will be admitted.
11 (Defendant's Exhibit No. v received 1n evidence.)
12 MR. MORRIS: Tender the witness, Judge.
13 THE COURT: Cross?
14 MS. CAPPLEMAN: May I approach?
15 THE COURT: YOU may.
16 CROSS EXAMINATION
17 BY MS. CAPPLEMAN:
18 Q I'm showing you what I have marked as State's
19 Exhibit 2. State's Exhibit 2 was contained in the defense
20 exhibit that was just introduced, but I want to introduce it
21 separately.
22 so 1s this a fair and accurate copy of the short
23 list of witnesses as prepared by yourself, Betty Fuentes, and
24 Rob Friedman for use 1n the penalty phase?
25 A It appears to be. Yes.
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1 MS. CAPPLEMAN: Judge, I would ask to move into

2 evidence State's Exhibit 2.
3 MR. MORRIS: Without objection.
4 THE COURT: All right. And it's part -- also part
5 of what exhibit?
6 MS. CAPPLEMAN: It 1s contained 1n that Defense
7 Exhibit v.
8 THE COURT: Okay.
9 MS. CAPPLEMAN: I think it would be easy to use 1n
10 that form.
11 THE COURT: State's Exhibit 2 will be admitted.
12 (State's Exhibit No. 2 received in evidence.)
13 THE WITNESS: If I may, Ms. Cappleman, I believe
14 that's the lay witnesses.
15 MS. CAPPLEMAN: Correct.
16 THE WITNESS: Okay.
17 BY MS. CAPPLEMAN:
18 Q You made reference in direct to what I think was an
19 analogy of you feeling like a scrub nurse, and Ines was the
20 drunk doctor?
21 A Yes.
22 Q was -- are you telling the court that Ines was drunk
23 1n court, or was that an analogy?
24 A It was an analogy. Let me be clear in that I never
25 smelled alcohol on her breath in court or in the office.
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1 Q okay.
2 A I did know she was taking some pills. I believe she
3 alluded to they were some kind of anti-anxiety pills --
4 Q But you don't --
5 A -- for panic attacks.
6 Q okay. But you don't have any reason to know or
7 suspect that she was taking any medications other than as
8 prescribed?
9 A well, the late-night e-mails, to me, sounded like
10 someone who was either on some type of medication that made
11 you sleepy or had been drinking or both. But, no, I don't
12 have any direct evidence or personal knowledge of that.
13 MS. CAPPLEMAN: No further questions.
14 THE COURT: Redirect?
15 MR. MORRIS: No, s1 r.
16 THE COURT: All right. YOU can step down. Do we
17 need to keep her any further?
18 MR. MORRIS: No, Your Honor, she can be excused.
19 MS. CAPPLEMAN: No, sir.
20 THE COURT: You're excused. I assume the State 1s
21 1n agreement.
22 MS. CAPPLEMAN: Yes, Your Honor.
23 THE COURT: All right. Do we have a plan of what
24 we're going to-- I'd like to try to honor Ms.
25 cappleman's request to break around 4:00. Do we have a
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1 plan of what we are go1ng to attempt to accomplish?

2 MR. MORRIS: we do our best to stay ahead of you 1n
3 that respect, Judge, and we just talked about it.
4 Ms. Hartwein is present. Mr. Been is present. And while
5 we believe that Mr. Friedman's testimony would be
6 lengthy, we believe that we need to continue working to
7 get us to the 4:00 hour, as Ms. cappleman mentioned,
8 hopefully leaving only cross of Mr. Friedman in the
9 morning and then a final witness or two from the defense
10 1n the morning.
11 THE COURT: okay. so who are you calling next?
12 MR. MORRIS: The next witness would be Julie
13 Hartwein.
14 THE COURT: Okay.
15 would you face the clerk.
16 whereupon,
17 JULIE HARTWEIN

18 was called as a witness, having been first duly sworn, was

19 examined and testified as follows:
20 THE COURT: Have a seat. slide up to the
21 microphone, please.
22 DIRECT EXAMINATION

23 BY MR. MORRIS:
24 Q can you state your name for the record, please,
25 ma'am?
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1 A Julie Pearson Hartwein.

2 Q And let me ask you to spell your last name, please.
3 A H-a-r-t-w-e-i-n, as in November.
4 Q All right. Ms. Hartwein, how is it that you're
5 presently employed?
6 A I still work for the State. I work for capital
7 collateral Regional council, the Northern Region of Florida.
8 Q How long have you been with c -- is it CRCC?
9 A CCRC North?
10 Q CCRC.
11 A since February of 2014.
12 Q And what do you do there?
13 A I am the administrative services director.
14 Q Define that a little bit more for me.
15 A I oversee and manage the office, the agency.
16 Q okay. It sounded a little bit more intricate than
17 it -- than it was. But where were you employed prior to that?
18 A Florida Public Defender's, second circuit.
19 Q okay. How long had you been at the office of the
20 Public Defender?
21 A I was there a total of about 12 years.
22 Q so from about, what, '02 to '14?
23 A I believe it was February of '02. I officially went
24 on the State's payroll, I believe it was April of '02. I came
25 on with a temp agency to start.
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1 Q Drawing your attention to 2007, 2008 forward, what

2 were your responsibilities within the office of the Public
3 Defender?
4 A 2007, 2008, I
5 Q And let me -- let me be more specific because it'll
6 draw your attention to it. obviously, we're here to have a
7 discussion about Mr. Hilton's case.
8 when did you and how did you become involved or
9 associated with Mr. Hilton's case?
10 A I was first brought in to assist the other paralegal
11 on the case, Ms. Faye Dorn, to assist because -- just the
12 magnitude of the case, the volume of documents to be
13 photocopied, organized, provided to everybody in the team. so
14 I was first brought in to assist with that.
15 From there, I started helping organize. From there,
16 I took over media, to which was provided during the trial.
17 And then from there I continued on as basically another
18 paralegal on the case. And then at one point and juncture 1n
19 time, I was pulled from working on the case as a whole to
20 mainly focusing on the penalty phase.
21 Q when you were brought into the case, who was your
22 supervisor? who were you reporting to?
23 A Ms. Faye and Ms. Ines. Suber.
24 Q Tell me about your educational background.
25 A I have about a year and a half of college, high
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1 school degree.
2 Q were you asked to function in essentially what would
3 be a paralegal capacity? or describe what your work was.
4 A Basically, a paralegal capacity, as well as my years
5 of experience, input on how to do things, organize, tackle
6 such a large volume, things along those lines. Just what I'm
7 really good at and what my training has provided me.
8 Q Do you remember when you were brought into the case?
9 A Let me think for a minute. I wasn't prepared for
10 that one. I would guess about a year before we went to trial.
11 Q okay. so the case went to trial in February of '11.
12 So you're thinking back it up to February of '10 might
13 A That's probably about accurate. I mean, it was
14 it was a transnational situation.
15 Q when you entered the case 1n approximately February
16 of '10, talk to me about the organization of the case, if any,
17 at that point.
18 A As far as the paperwork or as far as the team?
19 Q Yeah. Let's -- let's --we'll talk about both, but
20 let's deal with paperwork first. Discovery and things like
21 that had been ongoing for two years now.
22 A It was a nightmare.
23 Q okay. Describe the nightmare.
24 A Papers all over, duplicates of everything. And by
25 duplicates, I mean, you can get one document in from several
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1 sources; and instead of being identified as this copy from

2 this source, this copy from this source, there were copies
3 being made of the same thing repetitiously because they were
4 being misplaced.
5 The volume was so large there wasn't a great
6 organization in place for something that big, quite frankly.
7 Q one of our prior witnesses has described a closet,
8 similar in size to our jury box here, containing shelves, a
9 copy machine, and just reames of discovery paperwork.
10 A That's correct.
11 Q was there any rhyme or reason to the organization of
12 it, or was it just kind of placed everywhere?
13 A It was placed pretty muchly within the different
14 team members' offices. All over the desks. There was really
15 no rhyme or reason to it.
16 There had been attempts, as you would in your normal
17 average case where the volume would be, in my experience,
18 about a fourth of that. But it just got to be overwhelming
19 and not managed. And one of the things I did do when I came
20 1n more and more was we redid some of that organization.
21 Q Had you had experience with a case of that volume at
22 that point in time in your career?
23 A At that time, no, sir.
24 Q And the reason that I said "at that time" 1s my
25 susp1c1on is you have now.
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1 A Yes, s1 r.
2 Q To your-- looking at it, when you're looking at the
3 closet and the desks and things like that, there's not a
4 discovery log; there's not a Bates stamp of documents; there's
5 not an inventory of them; there's not a master list; there's
6 nothing that directs you to particular files or locations of
7 documents?
8 A None of that existed at that time.
9 Q okay. what, if anything, did you do or were you
10 able to do to aid organizationally?
11 A we started putting names on cop1es, because there
12 were so many team members. Another thing we started doing
13 that I personally did for Ms. Suber was I went into her
14 office, took everything in the discoveries in particular and
15 put them in order, realizing she was missing certain copies,
16 had multiple copies of other ones.
17 Q And when you say "discoveries," are you talking
18 about the face sheet that you get from the State that says
19 answer to discovery number whatever and it may list whatever
20 new information has come out?
21 A correct. And whatever may be attached, whether it's
22 pictures, a disk with information on it, whatever.
23 Q So at bare m1n1mum you're getting those in
24 chronological order, 1n date order based on receipt and trying
25 to make sure that we've got all of them?
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1 A Correct. Discovery one, amended discovery two,

2 amended discovery three, so on and so forth.
3 Q And are you inventorying or logging what it 1s
4 contained in them? or
5 A No. I don't believe that ever occurred.
6 Q Tell me-- well, why did it not or could it not
7 occur?
8 A I was not the lead paralegal.
9 Q You were given directive from a super1or and told to
10 focus on whatever that person told
11 A Yes.
12 Q -- you to focus on?
13 A Yes.
14 Q This was not a circumstance that you got to be a
15 self-starter and organize things the way that you wanted to?
16 A correct. The only reason I was able to do that with
17 Ms. Suber was she realized my organization and asked for my
18 help in her office when she couldn't find certain things that
19 she knew we had supposedly received into the office. so I
20 helped her reorganize what was 1n her office.
21 Q Did the closets and the desks, did we ever get to a
22 semblance of organization by the time of the trial?
23 A In my opinion? No, sir.
24 Q Yes, ma'am.
25 A No, sir.
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1 Q Possible, if not likely, that none of the members of

2 the team had the same documents, information, et cetera?
3 A Quite lightly -- quite likely.
4 Q okay.
5 A I can say a few of the members were organized in a
6 different fashion. Everyone has their own way of working.
7 Q sure.
8 A And through my exper1ence with that, I can say some
9 of them were aware and would come asking for, you know, cop1es
10 of something that they realized they did not have.
11 Q so your tenure initially was those original
12 components, helping Ms. Suber get organized, functioning at
13 Ms. Dorn's behest, whatever tasks needed to be accomplished.
14 And then you mentioned that you shifted over to media.
15 A correct.
16 Q what do you mean by that?
17 A I -- if I recall correctly, I believe there were a
18 total of somewhere between nine and 13 boxes -- my number may
19 be off -- of media coverage in support of the high profile of
20 the case, to move venue.
21 Q I see. Because there was a fair bit of litigation
22 that was surrounded with changing the venue and/or trying to
23 inhibit or prohibit information being disseminated to the
24 media?
25 A Yes, s1 r.
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1 Q okay. so when you say "media," it wasn't-- I had

2 1n my brain the playing of DVDs or audios or things like that.
3 Instead, you were focused on the print media, news media
4 outlets, things of that nature?
5 A correct. Yes. Media coverage.
6 Q what -- what was -- what was your job as it related
7 to that?
8 A Pull it all together, organ1ze it into a
9 comprehensible list.
10 Q In terms of how much exposure the case had had?
11 A correct.
12 Q Give me an idea of what sort of time constraints
13 that might have taken.
14 A I worked on it for close to a solid month every day;
15 minimally, eight hours a day.
16 Q And to whom did you provide the results of your
17 work?
18 A Ms. Suber.
19 Q And then eventually we shifted that your focus was
20 oriented toward the penalty phase?
21 A That 1s correct.
22 Q when do you think that your focus was directed
23 toward the penalty phase?
24 A As in a date?
25 Q Approximation, yes. If you had to walk it back from
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1 the trial.
2 A I would guess four to s1x months, but that's a
3 guess.
4 Q so roughly October -- September, October of 2010?
5 A I'm trying to think. Probably in that time frame.
6 Q okay. Initially, who was it that you were reporting
7 to as it relates to the penalty phase?
8 A I kind of reported to several people. Mr. Friedman
9 and Ms. Suber. I was kind of a -- a go-between. I kind of
10 did whatever needed to be done to make stuff happen.
11 Q And that -- that gets us to a segue of who was 1n
12 charge during the different compartments, so let's go back to
13 that because you asked that question.
14 when you first entered the capital unit to assist,
15 who was in charge of the overall team?
16 A Ms. Suber.
17 Q Tell me who the members of the team were when you
18 were injected into it.
19 A If I recall correctly, because there were changes, I
20 believe it was Ms. Suber. I believe it was Merribeth Bohanan.
21 I believe it was chris Ellrich. Betty Fuentes. Faye Dorn, of
22 course. I believe Mr. Friedman at that time, Robert Friedman.
23 And I cannot recall if Ms. Paula saunders was yet involved. I
24 do not think she was at that time. I think she was just
25 being -- you know, things discussed as needed with her.
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1 Q And I don't know whether you're able to-- who was

2 assigned to the guilt phase? who was assigned to the penalty
3 phase at that point? or was anyone?
4 A I don't believe there was a discrete line at that
5 time.
6 Q I don't know if you were pr1vy, but were there any
7 particular strategies that seemed to be in place in terms of
8 the defense for Mr. Hilton at that point?
9 A Yes, I was privy.
10 Q what was the strategy at the point when you first
11 entered, in terms of the guilt phase or the penalty phase?
12 what was the overall strategy?
13 A I'd like to clarify what it 1s you're asking me. Do
14 you mean what -- were there attempts as far as how to proceed
15 1n court?
16 Q Yes. what -- what was your understanding of what
17 the presentation was going to look like? You got a guilt
18 phase, you got a penalty phase. what was
19 A They were trying to get a life sentence.
20 Q okay. And recognizing that to be one strategy if
21 the case were to proceed to trial, did you have an
22 understanding of what the defense team was going to try and
23 accomplish in the guilt phase?
24 A I believe there was a lot of discord 1n that.
25 Q And describe that for me.
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1 A I think everyone was on the same page of wanting

2 life, but -- a life sentence, to be clear. But there was
3 also, of course, major discussions that death was not off the
4 table yet, so we had to be prepared for both ends and who was
5 go1ng to handle it. And at that point it was just everyone
6 kind of doing their own research. There wasn't a lot of
7 organization.
8 Q was anybody really prepar1ng for trial and
9 organizing for a guilt phase and a penalty phase?
10 A I think perhaps independently they were, but I don't
11 think there was a lot-- well, let me rephrase that. I know
12 there wasn't a lot of discussion going on as far as who 1s
13 go1ng to do what. I know there were attempts at those
14 discussions. They never really came to a solid, concrete
15 conclusion and --
16 Q Did you
17 A -- instruction.
18 Q Did you and Ms. Dorn participate 1n team meetings
19 when they would get together and talk to one another over
20 where -- where are we at?
21 A I did I did several times. I cannot recall if
22 Ms. Dorn did.
23 Q So there was unanimity amongst the group that the
24 objective 1s to get a life sentence. But 1n the event that
25 the case were to proceed to trial, it was not clear to you how
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1 the defense team, the lawyers, intended to get there?

2 A correct. It was basically everyone would be at the
3 table, and that was about it.
4 Q were there discussions -- and I may have asked this
5 before. Ms. Suber, as I understand, was initially -- she was
6 1n charge of everything.
7 A That is accurate.
8 Q That would include both guilt and penalty?
9 A That is accurate.
10 Q what was Mr. Friedman assigned to be doing at the
11 time when you entered into the capital unit?
12 A I believe he was kind of serv1ng as an additional
13 second chair. There were multiple second chairs. And as I
14 understood it at that time, each one was given a different
15 area of research under Ms. Suber as second chair.
16 Q But we were not to a point or a circumstance that
17 Mr. Friedman had been directed, you are 1n charge of penalty.
18 It was, we're still in a circumstance that Ms. Suber 1s
19 handling everything, and then we've got several worker-bee
20 attorneys underneath the second chair?
21 A That is that is correct.
22 Q As time proceeds forward, did problems emerge,
23 friction, discord, disharmony? I don't know, you explain it
24 to me. what happened?
25 A That was from my first walking in and helping
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1 photocopy things.
2 Q That you -- that you sensed those things?
3 A oh, yes. That was from day one when I first went up
4 to help photocopy documents.
5 Q characterize the environment for us.
6 A Tense. Anxious. Frustrated. Emotional. Stressed.
7 I mean, really any negative word you wish to plug in.
8 Q Did you ever go to your immediate superv1sor or to
9 Ms. Daniels and identify what was happening amongst the ranks,
10 or did you feel that was your place?
11 A whether it was my place or not, I had a job to do,
12 and I was going to do it. So I went directly to Ms. Suber,
13 and I had a closed-door meeting with her and specifically
14 asked her her expectations from me and what she needed from
15 me.
16 And along the way, we got to a point, pr1or to the
17 separation of the guilt versus penalty phase teams, if you
18 will, I would go every morn1ng with a pad of paper and pen,
19 and she and I would meet for at least 15 minutes to go over
20 what she needed from me that day and the conclusions of
21 anything I had completed the day before and where we stood on
22 those. That's how I worked with her, and it worked for her
23 and I, and that is how she and I agreed to function together.
24 Q Taking it a step further, though, you didn't -- you
25 made the observations of the whole group. I understand your
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1 concern for your own position and your own job.

2 Did you provide any expressions of your observations
3 of other people in the team and disharmony amongst the team to
4 any of your supervisors?
5 A when I was asked. By that point they pretty muchly
6 knew, but I was asked for confirmation I suppose.
7 Q By whom?
8 A At one point, Ms. Daniels. Another point,
9 Mr. Tomasino. Another point, Mr. Friedman. And, of course,
10 Ms. Suber.
11 Q Ms. saunders ends up being inserted into the case at
12 some point, and then some point shortly -- let me withdraw the
13 question.
14 when was it that guilt and penalty were, quote,
15 separated, end quote?
16 A Are you requesting a date or --
17 Q No.

18 A -- an event --
19 Q Just in general.
20 A -- a series of events?
21 Q Yes.
22 A After several weeks of e-mails, texts, calls, that
23 as those couple of weeks went over, passed by, they became
24 much more incoherent. And, finally, after several nights in a
25 row of multiple, very lengthy e-mails, I mean, like, multiple
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1 pages, printed e-mails of incoherent e-mails, texts, and phone

2 calls, even to myself at all hours of the day and night, two,
3 three in the morning even.
4 Q And your reference -- the or1g1n of these 1s from
5 Ms. Suber?
6 A Yes. And I would get periodic calls and texts from
7 others, too. But, typically, they didn't go past about 11 or
8 12 at night.
9 I wasn't the only one rece1v1ng these, and so others
10 spoke up. And one day it basically came that, I guess, guilt
11 and penalty had been separated, and Mr. Friedman would take
12 care of the one; Ms. Suber would continue to see over the
13 other, and I was to focus mainly with Mr. Friedman on the
14 penalty phase.
15 Q was Mr. Friedman tasked with reporting to Ms. Suber
16 or reporting to Ms. Daniels?
17 A Ms. Daniels.
18 Q At that point, the hierarchical structure, if you
19 will, within the capital unit had been done away with, and
20 Ms. Daniels was the boss, which she was.
21 A correct. There was the expectation of communication
22 between the two phase teams, if you will, meaning, I think
23 there was the expectation, from my observations, that, of
24 course, you want the teams communicating, you know.
25 If you plan on calling the same witness, you don't
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1 want to depose the same witness twice just for two phases,
2 kind of a thing. But there really wasn't communication.
3 Q A two-part question then. up to that point, had
4 there been communication and interface, interface specifically
5 between whomever was developing the penalty phase and
6 Ms. Suber?
7 A Attempts.
8 Q success?
9 A I think it varied on the day, the time, and the
10 person.
11 Q The change was made presumptively for a reason, to
12 place Mr. Friedman in charge of the penalty phase and
13 Ms. Suber in charge of the guilt phase, each supervised,
14 theoretically, by Ms. Daniels. From that point forward,
15 was -- were Mr. Friedman and Ms. Suber communicative with one
16 another?
17 A very nominally.
18 Q To what do you attribute their nominal communication
19 or inability to communicate?
20 A communicating with Ms. Suber at that point 1n time
21 was very difficult.
22 Q And I say respectfully I recogn1ze the fact that
23 your boss or your employer 1s 1n the courtroom, and he's a
24 witness in the case.
25 Ms. Suber was difficult to communicate with.
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1 characterize that for me 1n terms of what your observations

2 were and the attempts.
3 A A lot of her communication was no longer coherent.

4 Q what -- and we -- we have in evidence much of the

5 written communication. But are you also speaking to verbal
6 communication as well?
7 A I don't believe there was much verbal communication
8 between them. It was -- it was mainly --
9 Q In other words
10 A kept in writing so it would be clean and
11 succinct.
12 Q Their-- their relationship was fractured such that
13 face-to-face communication was not going to work, and it was
14 best to reduce things to writing?
15 A I don't know if I can say that completely. I -- I
16 didn't participate in that. I do know from my observations of
17 what I saw, I cannot immediately recall a time where they
18 necessarily had face-to-face communication much thereafter, if
19 at all, until maybe right up before the trial perhaps. I --
20 but I was off doing my own job as well, so--
21 Q There's been some testimony about maybe monthly
22 staff meetings where Mr. Friedman would be called 1n,
23 Ms. Suber would be called in, and there would be some sort of
24 discussion or round table. were you participants in those
25 with Ms. Daniels?
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1 A Yes, I was.
2 Q And did the parties discuss their, during those
3 meetings, openly and candidly, strategies and who is handling
4 what? or characterize for us what was going on.
5 A Those attempts were made, but a lot of times
6 emotions got 1n the way, and things would get heated, and
7 things would have to be calmed down and then regrouped. And,
8 eventually, the meeting would end after we got to a stopping
9 point.
10 Q To the point of the trial, based on your
11 observation, was there ever any thematic agreement between the
12 guilt phase and the penalty phase, in terms of what the
13 presentation would entail, to the jury?
14 A Are you asking if they were each aware of each
15 other's perspectives of how they were going to present in
16 court?
17 Q Let me ask the question a different way.
18 Did their presentations agree -- did they agree with
19 one another on how each other's presentation should be made?
20 A No.

21 Q Did they ever come to an agreement on how one

22 another's presentation should be made?
23 A No.

24 Q From that, it would be fair to say that by the time

25 that we got to trial, neither party was in agreement.
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1 Ms. Suber was not in agreement with what Mr. Friedman was
2 doing. Mr. Friedman was not in agreement with what Ms. Suber
3 was doing, and to each their own?
4 A To an extent, yes. I do think that there were some
5 agreements on, probably, some certain aspects. But I do know
6 there were some larger disagreements on other aspects.
7 Q How much -- what were you doing to help Mr. Friedman
8 1n preparing for the penalty phase?
9 A Specifically? Like my -- my daily functions?
10 Q Yeah, just some of your daily tasks.
11 A I would take care of subpoenas, serving subpoenas.
12 calling witnesses for depositions. Scheduling depositions.
13 Ensuring we had all the discovery. Making sure he had it all
14 available to him, how he needed it organized, whatever he
15 needed from me.
16 Q I think most lawyers do this with their assistants,
17 I know that I do; but was Mr. Friedman and -- did you guys
18 have conversations of, Hey, what do you think about this
19 issue? And he would ask for an opinion on what you thought or
20 how something should be handled?
21 A I don't know that he per se asked for my op1n1on.
22 we just had open discussions. You know, what's your
23 perspective on something? what's your insight on this? what
24 do you think about that?
25 Q what were your perceptions of how Mr. Friedman
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1 intended to present the penalty phase?

2 A From what I did know -- keeping 1n mind I was also
3 doing other stuff, so I wasn't able to always get into all the
4 details of the case -- from what I did know, it made logical
5 sense to me.
6 Q And what was it that you did know?
7 A In details about Mr. Hilton's case or his approach?
8 Q well, I guess, what did you -- what did you -- what
9 made logical sense to you in terms of what you knew about the
10 presentation or intended presentation?
11 A certain witnesses, whether we would call them or not
12 call them.
13 Q okay. And was Ms. Bohanan a participant 1n the, I
14 guess, the structuring or -- or the the logic of the
15 presentation of the penalty phase?
16 A As far as Mr. Friedman's, the penalty side?
17 Q Yes.
18 A once the separation has -- had occurred?
19 Q Yes.
20 A Not that I'm really well aware of. I think there
21 were some there was communication. I think there was
22 discussions, but I I was not involved in those discussions.
23 Q understood. what -- what was your understanding of
24 Ms. Bohanan's role, then, as related to Mr. Friedman?
25 A she was second chair to Ms. Suber.
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1 Q she was second chair 1n the guilt phase, not the

2 penalty?
3 A correct.
4 Q And so Mr. Friedman was on his own of sorts as the
5 lawyer for the penalty phase?
6 A Not really, because Ms. saunders came 1n pretty
7 muchly right at around all of this time -- time frame.
8 Q And Ms. saunders was tasked to do what?
9 A work with Mr. Friedman on the penalty phase.
10 Q okay. so those were the two lawyers that were
11 working on the penalty phase --
12 A Correct.
13 Q -- in terms of the presentation?
14 A correct.
15 Q And you said that it seemed like a logical thing to
16 do. what was the logical thing to do that you were observing?
17 A well, there were several things. A case of that
18 volume, I believe, is more than just a lead and second chair
19 can handle. Just the -- the sheer mass of documents to be
20 read and reviewed, much less to then decide, you know, legal
21 argument and depositions and subpoenas and evidence to go
22 through, so it made sense. You know, a trial 1s 1n two
23 phases, a guilt phase and the penalty phase. It makes sense
24 to have two teams to each tackle the issues accordingly.
25 Q That I get. Okay. And, then, I guess my question
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1 goes a little bit further, is -- and I recogn1ze that you were

2 not one of the lawyers in terms of formulating the tactics and
3 the strategy and and whatever each individual who was 1n
4 charge was going to present. But did you have an
5 understanding of what Mr. Friedman's strategy was, or how he
6 was go1ng to present the mitigation prior to the commencement
7 of trial?
8 A A good portion of it, yes; but not necessarily all

9 of it because I was busy just trying to get people travel

10 arrangements, subpoenas, depositions, you know, make sure
11 everything would be ready for court, the media -- as far as,
12 1n this term is "media" as in computers, software, being able
13 to be displayed 1n the courtroom.
14 Q I've had my fair share of troubles this week
15 already.
16 A Ran into a few myself.
17 Q would it be fair to say that you didn't know
18 precisely which witnesses would -- were important or which
19 ones were go1ng to be called or why witnesses would be called
20 or not be called, you weren't participating in those
21 day-to-day decisions?
22 A In the day-to-day decisions, no. was I aware of
23 some of it? Yes. Bits and p1eces here and there. The
24 day-to-day decisions, no, sir, I'm not a lawyer.
25 Q During the course of the trial there were several,
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1 what I would describe "anomalies." Tell me what your

2 recollection is of what occurred during the trial amongst the
3 staff.
4 A In the courtroom or outside of the courtroom?
5 Q Both.
6 A I believe everyone was professional. I believe
7 personal emotions, in particular the guilt size -- guilt side
8 took over professional judgment.
9 Q HOW so?
10 A some of the emotional, erratic behavior, the --
11 something simple creates a -- temper tantrum is the word that
12 comes to my mind. There was no fluidity between the team.
13 There was great lack of communication versus the penalty side.
14 we regularly met to ensure we were all on the same page, to
15 ensure everybody knew their part, their job. I certainly knew
16 m1ne. The lack of organization, I believe, is part of what
17 created all of the combustion.
18 Q Recognizing that you, as well as Mr. Friedman,
19 stepped into preparation for the penalty phase at what I would
20 describe as a relatively late hour or date, by the time that
21 it got to trial, was the penalty side adequately organized
22 and to go to trial, or was there still discussion of we're
23 not ready?
24 A My immediate response is: Are you ever truly ready?
25 Q sure. I understand, but --
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1 A I believe we were as ready as we could be with what

2 we had been provided to work with. we had, our end, as
3 organized as I think we could. But being fed from a
4 disorganized mass creates some havoc, so you have to basically
5 make lemonade out of lemons.
6 Q And back to the actual conduct of the trial itself,
7 I understand the animosity that you described between the two
8 sides and the emotion. obviously, Ms. Fuentes departed,
9 Ms. Bohanan departed the trial and withdrew. Tell me what was
10 happening surrounding those events. were you in the courtroom
11 for
12 A I was 1n and out.
13 Q Tell me what was go1ng on, I guess, outside of the
14 courtroom, in the office. There had to have been a bit of a
15 frenetic pace of what was happening. what -- what was going
16 on in your mind's eye?
17 A It was more of the same that had been go1ng on for
18 months. Emotional discord. Emotional stress. Making
19 decisions that did not seem logical. send you off to one
20 place to go do something, and then send you 1n another place
21 to go do something, which, just kind of left your head
22 sp1nn1ng as to that just doesn't make logical sense. You can
23 go in a full circle and accomplish three things much better
24 than going back and forth three times.
25 Q Did Ms. Fuentes's departure in the midst of the
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1 trial have an impact on the penalty presentation or what you

2 believed was the intended penalty presentation?
3 A I think it likely did. How could it not? I mean,
4 you've lost part of your team.
5 Q Ms. Fuentes was an intended participant 1n that
6 team?
7 A correct.
8 Q were there other witnesses that were intended
9 participants that then did not become participants in the
10 penalty phase?
11 A Meaning the legal team chose not to call certain
12 witnesses, yes.
13 Q Thank you.
14 MR. MORRIS: I tender the witness, Judge.
15 THE COURT: Cross?
16 MS. CAPPLEMAN: No questions.
17 THE COURT: All right. YOU can step down.
18 Do we need to keep her any further?
19 MR. MORRIS: No, Your Honor, she can be released.
20 MS. CAPPLEMAN: No, Slr.
21 THE COURT: You are free to go. Thank you for being
22 here.
23 call your next witness.
24 MR. MORRIS: Steven Been.
25 THE COURT: If you'd come up and face the clerk,
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1 please, s1r.
2 whereupon,
3 STEVEN BEEN
4 was called as a witness, having been first duly sworn, was
5 examined and testified as follows:
6 THE COURT: Have a seat, Mr. Been. For your
7 edification, we've already discussed the attorney-client
8 privilege has been waived. so please answer any relevant
9 questions.
10 THE WITNESS: Okay.
11 DIRECT EXAMINATION
12 BY MR. MORRIS:
13 Q can you state your name for the record, please, s1r.
14 A Steven Been, B as in boy, e-e-n as in Nancy.
15 Q All right. Mr. Been, my understanding is that
16 you're presently retired?
17 A That's right.
18 Q what did you do pr1or to your retirement?
19 A For the -- for 28 years I was an Assistant Public
20 Defender. I did other things before that, but that was what I
21 did before my retirement.
22 Q All here in the second Judicial circuit?
23 A Right.
24 Q Let's talk 1n general about the capital unit, the
25 inception of the capital unit. Prior to Mr. Hilton's case,
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1 what was the Capital unit? what did it look like pr1or to
2 Ms. Suber ever coming into what's described as the capital
3 unit? what did it look like?
4 A I well, I'm not -- I'm not sure how far back you
5 want me to go. I mean, early --
6 Q Just 1n -- 1n the time period pr1or to Ms. Suber,
7 that's it.
8 A In the early nineties, first-degree murders with
9 death not waived were just assigned to felony trial lawyers.
10 we didn't really have a capital unit.
11 I was not personally involved with the capital unit
12 until maybe late 2007, early 2008. At that time, I was in the
13 Felony Trial Division, and Ines Suber and Paula saunders had
14 been, just prior to that, the lawyers doing the capital cases.
15 Ms. saunders, I think, had decided she didn't want to do it
16 anymore, and Ines wanted another second chair, and I offered
17 to do that.
18 Q so when you entered into the picture 1n 2007, 2008,
19 Ms. Suber was the head of the capital unit?
20 A Yes.
21 Q You volunteered to be the second chair of that unit?
22 A Right.
23 Q And there's been some, at least in my mind, some --
24 what what-- what does second chair mean to you?
25 A well, that's a good question.
SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 Q well, and I -- I want you to answer the question 1n

2 the sense of: what does it mean to you? And then we'll talk
3 about what it actually meant in the capital unit.
4 A I mean, in my mind, when you have two lawyers on
5 a-- on a criminal case, if there's a first chair and a second
6 chair, in my mind, the first chair is the one who gets to make
7 the final decisions. But how the work is divided up, I don't
8 know that there's any standard way to do that.
9 Q well, was there a circumstance that recogn1z1ng
10 that first chair is a person who-- Ms. Suber was the person
11 that the buck stops with and she make the decision, and you're
12 to collaborate with her, was there a division of
13 responsibility of, Mr. Been, you handle the guilt phase, and
14 I'll handle the penalty phase? was there any division of
15 labor that the lawyers endeavored to do from the inception of
16 Mr. Hilton's case?
17 A okay. so that -- that -- which came during the
18 time we got Mr. Hilton as a client during the time that I
19 was working with Ines in capital in 2008. Not an overall
20 division. we tended to talk about each 1ssue as it came up.
21 we talked about the case overall. I-- there were things that
22 I initiated and just did.
23 Q You were each self-starters of sorts with the issues
24 and report to one another on what progress is being made, and
25 what the -- the issue was?
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1 A The biggest thing that I worked on, I would say,

we had another capital case at the same time.

Andrea Green was the client. And the hearing -- in both cases
we moved to seal the records to keep them from the news
organizations. Both cases were getting a huge amount of
publicity. And Ines was taking the lead 1n in working on
that, in the Andrea Green case, and gave me a draft of a

24 I don't know. I'm not sure I'm -- I'm being

25 responsive to your question. There was not a clear division.
SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 we did we worked on things as they came up, I would say.

2 Q How long did your overall tenure with Ms. Suber 1n
3 charge did you stay? How long were you 1n the capital
4 Division?
5 A It was a year or less. I believe it was less than a
6 year.
7 Q Did you request to leave the division?
8 A I did.
9 Q why did you request to leave the division?
10 A I found it impossible to work with Ines. I -- I
11 hate to say that, she's a human being, but I -- I couldn't
12 work with her.
13 Q so you made the request to get yourself out of there
14 and asked Ms. Daniels to replace you with someone else?
15 A Right.
16 Q okay. were there other circumstances that you
17 observed in the courtroom of Ms. Suber being inadequately
18 prepared, ill prepared, not understanding arguments, not
19 understanding what was going on?
20 THE COURT: Are we talking about this case,
21 Mr. Morris? Are we talking about the Hilton case?
22 BY MR. MORRIS:
23 Q well, no, let's restrict it to the Hilton case.
24 A I don't remember hearings in the Hilton case while I
25 was on the case, other than on the issue of sealing discovery.
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1 There may have been other issues. That was certainly the
2 biggest one, the one we spent the most time on while I was
3 there, so I can't -- I can't say I remember other -- other
4 anything else on that.
5 Q okay. was Mr. Hilton already a client when you
6 joined the unit, or did he become a client while you were 1n
7 the unit?
8 A He became a client while I was -- while I was 1n
9 the 1n the unit. when we first visited him, he was
10 incarcerated in Georgia.
11 Q That's what I was go1ng to ask you about. so your
12 first interaction with Mr. Hilton was 1n Georgia. And what
13 was Mr. Hilton's demeanor, disposition, when you first met
14 him?
15 A He was very likable. I liked him. He seemed
16 reasonably intelligent. He seemed very ready to tell us
17 whatever we wanted to know. He wasn't being cagey like many
18 clients often are.
19 Q Forthright, factually?
20 A Yes. That was my impression of him.
21 Q Did he-- did he demand that we're going to trial,
22 come hell or high water, and we're go1ng to challenge every
23 bit of evidence all the way to the end?
24 A No. I never heard him say anything like that. He
25 tended to defer to Ines's judgment on every legal issue. I
SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 think he trusted Ines.

2 Q And recogn1z1ng when you first met with Mr. Hilton,
3 at that point you don't have any of the discovery, so you
4 don't know exactly what the State has got against your guy,
5 accurate?
6 A True.
7 Q You're having to rely on Mr. Hilton's recitation of
8 the facts, hoping that to be candid and forthright; that way
9 you can prepare your mind for whatever you're getting ready to
10 rev1ew, accurate?
11 A Yes.
12 Q okay. when you first met with Mr. Hilton, were you
13 1n a position to g1ve him advice on what strategic or tactical
14 decisions needed to be made in terms of entering pleas or
15 going to trial, or themes of guilt phase and penalty phase?
16 I'm talking about in Georgia now.
17 A I believe at that time he had already pled to the
18 charge 1n Georgia, if I remember right, and so that decision
19 was over. And, no, we were certainly not 1n a position to
20 make any recommendations about strategies 1n -- in Florida.
21 Q I mean, I suppose the only recommendation that you
22 can make to the client 1s to look at him and say, "A win 1n
23 this is going to be if we can get a life sentence that's
24 concurrent with the life sentences that you've gotten in
25 Georgia"?
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1 A He understood that. He certainly understood.

2 Q But there was
3 A Also, of course, we could tell him not to talk to
4 anyone other than his team.
5 Q sure. But there wasn't a bunch of advice that was
6 flowing forth to Mr. Hilton right at the inception of
7 different decisions that he might make based on the facts and
8 the evidence, the strength or the weakness of the evidence,
9 none of that -- nobody was 1n a position to give Mr. Hilton
10 good, candid advice?
11 A I don't remember any discussion like that at all.
12 Q okay. Mr. Hilton then gets extradited back here to
13 Florida. Did you have the opportunity to participate 1n
14 conversations or meetings with Mr. Hilton either individually
15 or in the company of Ms. Suber or in the company of an
16 investigator at the jail?
17 A Yes.
18 Q Give me a rough idea of how many times that you met
19 with Mr. Hilton.
20 A That may be in the notes somewhere.
21 Q Like I said, just a rough approximation.
22 A I'm really not sure. I -- I would say three to ten
23 times. That's a guesstimate.
24 Q During those conversations with Mr. Hilton, was
25 there discussion by you or by Ms. Suber with him about what
SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 strategy should be employed in his case?

2 A In the sense of talking about we have to see what
3 evidence the State has, and then we'll -- and then we'll be
4 better then we'll better be able to talk about what we
5 should or shouldn't do, only that kind of discussion that I
6 remember.
7 Q was there any discussion, in those three to ten
8 meetings that you were a participant in, Mr. Hilton telling
9 Ms. Suber or yourself that we absolutely need to charge
10 forward in the guilt phase, object to every item of evidence
11 and fight them tooth and nail?
12 A That would be totally inconsistent with everything I
13 ever saw about how Mr. Hilton dealt with his lawyers. And,
14 no, I never remember him saying anything like that.
15 Q Had Mr. Hilton said that in your presence, what
16 would you have said in counsel as a lawyer?
17 A I would have said that normally in a death penalty
18 case, how you approach the guilt phase, your main focus should
19 be how it's going to affect the jury in the penalty phase.
20 And seeming obstructionist in the guilt phase can totally --
21 is likely to totally backfire in the penalty phase, and that
22 that's not a good idea. And it may seem like -- to some
23 clients, it seems like, oh, we have to fight everything. They
24 have this notion that if you're not fighting everything,
25 you're not really working for me. To explain that's not
SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 really how a good lawyer works would be how I would have --

2 would have approached that. But he never -- he never made
3 that kind of argument or request.
4 Q And so if I'm hearing you correct, during the year
5 that you're associated-- roughly a year that you're
6 associated with Mr. Hilton's case, the conversations and
7 discussions from a strategic or a thematic perspective, the
8 conversations were always, well, Mr. Hilton, we need to see
9 how this evidence is going to develop both on the guilt phase
10 and then the mitigation evidence, and -- and we can make
11 decisions based on those developments. Is that an accurate
12 description?
13 A I mean, he was not asking for decisions. As I say,
14 he was deferring to us.
15 Q so he did not provide directives, nor did Ms. Suber
16 ask him for a decision; it was the lawyer saying, "we need to
17 wait on the developments of the evidence"; and Mr. Hilton
18 say1ng, "I'll let you tell me what you think is best."
19 A Essentially, yeah.
20 Q once you were extracted from the capital unit, what
21 participation, involvement, if any, did you have in
22 Mr. Hilton's case from that point forward?
23 A Not much. I don't think -- you know, Ines and I did
24 not separate on the greatest of terms; and I don't think she
25 and I had any conversations about Hilton, except that while I
SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 was on the team, I had convinced her that we should get a New
2 York Times subscription.
3 And a time came when that needed to be renewed, and
4 I talked to her about it. she was still willing to pay half
5 of a year, New York Times subscription. But other than that,
6 I don't think we talked about the case at all.
7 I decided not to go watch the trial because I felt
8 that my presence might be upsetting or distracting to her, and
9 I didn't -- I didn't want to do anything that might -- I also
10 was busy. I had a full caseload, I was busy. But I didn't
11 want to do anything -- I was interested. I didn't want to do
12 anything that might hurt their chances.
13 I did listen to Mr. Friedman's penalty phase
14 argument, which was somehow being streamed or broadcast or
15 something, from my office. That was the only part of the
16 trial I observed, and that was not in person.
17 Q How did that comport with your knowledge of the
18 mitigation and the penalty phase information that you had to
19 the point of your departure?
20 A well, I was not pleased when I heard the penalty
21 phase argument. I thought it was incompetent. I thought it
22 was, I mean, really bad. It was -- it was a -- more of a
23 legal argument than a Jury argument. Mr. Friedman really 1s
24 not a jury trial lawyer in my op1n1on. And I was surprised
25 that some dramatic things that I had learned about during the
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1 time I was on the case weren't mentioned.

2 I don't remember exactly what they were. It may
3 have been --well, I even don't know what's --what's --
4 what's been -- I don't know if I should talk about things that
5 I learned during the case. But there were things that I
6 learned that seemed dramatic and -- and important that weren't
7 mentioned.
8 But the thing that really bothered me was that it
9 was dry legal argument, not -- not the kind of argument that's
10 going to save somebody's life in a penalty phase.
11 Q At the conclusion of Mr. Hilton's trial, what
12 happened to the Capital unit?
13 A shortly after, John Tomasino came to me -- John
14 Tomasino, of course, was sort of the administrative head of
15 the office -- came to me and said basically, "capital is a
16 disaster. we're starting over. we want you to be head.
17 would you be willing to do it? And we want all new people."
18 And I was surprised. I had no idea anybody -- I
19 mean, I had heard that the team wasn't doing well, but I had
20 no idea that I was going to be tapped for that. I said I
21 wanted to think about it. And the next day I said, "okay,
22 I'll do it." And so I did-- I did-- I did that. I mean, I
23 can talk about what I did, but I'm not sure what you're asking
24 me.
25 Q No, you don't need to elaborate on that. But,
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1 essentially, the entire team was disassembled, and all new

2 personnel inserted?
3 A well, that was their -- that was what I was told.
4 However -- and we -- however, I, as the new head of capital,
5 said that I wanted Julie Hartwein to be the legal assistant.
6 I had worked with her many years before, and I knew
7 that she was, unlike many legal assistants, someone who kind
8 of cared about the cases and got involved in them kind of like
9 a lawyer and would be, I felt, a more useful member of the
10 team than just any old legal assistant.
11 And a few weeks after we started, I said that I

12 thought it was-- it was a mistake to have taken chris Ellrich

13 out of capital; that we needed his expertise, and pushed to
14 have him return to capital. so it was-- really was not
15 totally new. The lawyers were all -- all people who hadn't
16 been on the Hilton team, but in the end we did have some --
17 some continuity.
18 Q The mitigation expert, of course, was gone?
19 A That's right. That's right. That's right. one of
20 the one thing, I heard talk earlier about organization of
21 paper. one of the big things that I was aware of was what a
22 disaster paper organization had been even back in 2008. I

23 could imagine what it was like during the Hilton trial, 1n

24 such a big case.
25 chris Ellrich had -- had proposed back then that we
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1 put everything we got, all the discovery, all the mitigation,

2 one copy on a server that we all would have access to,
3 computer server, instead of making umpteen copies of
4 everything; and then when you're looking for something, it's
5 just, the -- the pile of paper was so huge, it was hard to
6 find anything. Ines had vetoed that.
7 I revived the idea, and that was part of what --
8 what we were doing in the reorganization was finding a way to
9 handle the voluminous documentation in a way that was more
10 usable.
11 Q And when you say "handle," you're talking about post
12 Hilton?
13 A Right.
14 Q okay.
15 A This 1s all -- this is -- as I say, I wasn't
16 involved until after the Hilton case.
17 Q Thank you, Mr. Been.
18 MR. MORRIS: Tender the witness.
19 THE COURT: cross?
20 CROSS EXAMINATION
21 BY MS. CAPPLEMAN:
22 Q How many capital cases had you handled pr1or to
23 com1ng on to the Hilton case?
24 A I had-- you mean-- if you're talking about trial?
25 Q Yes.
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1 A So I had never participated in a trial where death

2 was on the table prior to working on the Hilton case. And
3 s1nce then, I've only done two.
4 As you can imagine, if you're a capital lawyer, one
5 of your top priorities 1s of weighting a trial at which death
6 1s on the table. It's it's kind of the -- the assumption
7 1n the capital defense world is, if you got to that point,
8 you've already failed. Not that you can't sometimes win
9 but-- at trial, but the goal is to always avoid a trial with
10 death on the table.
11 MS. CAPPLEMAN: No further questions.
12 THE COURT: Redirect?
13 MR. MORRIS: No, sir.
14 THE COURT: YOU can step down.
15 Do we need to keep Mr. Been any further?
16 MR. MORRIS: No, Your Honor, he can be released.
17 MS. CAPPLEMAN: No, sir.
18 THE COURT: You're excused, Mr. Been.
19 THE WITNESS: Thank you, s1 r.
20 MR. MORRIS: Your choice, Judge.
21 THE COURT: what's that?
22 MR. MORRIS: I said your choice in terms of if we
23 want to start with Mr. Friedman, or --
24 THE COURT: we about need to take five minutes. If
25 we're-- I mean, what-- what is y'all's preference? I
SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 guess, how are we doing time-wise?

2 MR. MORRIS: Time-wise, from the defense
3 perspective, no matter -- even if we were to push
4 Mr. Friedman to tomorrow, we would be done with the
5 defense case by noon at the latest.
6 THE COURT: what about -- we had Ms. Jamieson lined
7 up.
8 MR. MORRIS: I apologize, Judge. I've excused Ms.
9 Jamieson because it would be cumulative and redundant.
10 THE COURT: Okay.
11 MR. MORRIS: we've somewhat gotten to that point
12 already.
13 THE COURT: so what's your preference, Ms.
14 cappleman?
15 MS. CAPPLEMAN: My preference is still to break at
16 four today. I have no preference regarding getting
17 started with Mr. Friedman, and I do not anticipate he
18 will done by four. we could pick him up again tomorrow,
19 or we could start with him in the morn1ng. I'm fine
20 either way.
21 THE COURT: I don't have any strong feelings one way
22 or another. If y'all want to
23 MR. MORRIS: I think my preference, Judge, would be
24 to break for the day, just because I'm afraid that I
25 wouldn't get finished.
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1 (Discussion off the record.)

2 MS. CAPPLEMAN: You want me to make sure Friedman 1s
3 okay with that?
4 MR. MORRIS: Yes. what Mr. Lanasa was just
5 1nqu1r1ng about, Ms. saunders' testimony, and I just
6 indicated that-- Your Honor has already listened to it.
7 THE COURT: Right. I didn't mean for her to
8 disappear.
9 MR. MORRIS: she is checking with Mr. Friedman to
10 make certain that he's okay with tomorrow morn1ng. He
11 indicated to me earlier that he was.
12 (Pause.)
13 MR. MORRIS: The consensus, Judge, amongst
14 Ms. cappleman, Mr. Friedman, and myself would be to come
15 back tomorrow morning.
16 THE COURT: okay. Have y'all discussed how we're
17 going to make a record for review? You know, in most
18 post-conviction matters we pick out what we want to be
19 made part of the record for rev1ew. But that may be a
20 little difficult for this. Y'all need to discuss that.
21 Ms. Keegan?
22 MS. KEEGAN: Yes, Your Honor. Is the court
23 referring to excerpting portions of the trial record that
24 were provided on direct appeal or this record?
25 THE COURT: I'm saying for appeal purposes, yes,
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1 ma'am.
2 MS. KEEGAN: oh. Typically, what I have done in the
3 past is the Florida supreme court relies on the capital
4 record that was provided during the direct appeal for any
5 references there. certainly, if the court's preference
6 is to excerpt any portions of relevance, the court
7 certainly could.
8 MR. MORRIS: I think we're go1ng to be wading into a
9 m1re if we start trying to excerpt. And my
10 recommendation is that I move to incorporate or include
11 the entirety of the trial, jury selection, all the way
12 through, and that be made part of it.
13 THE COURT: well, y'all discuss that. I just don't
14 want to not have thought it through. I want to make sure
15 what the -- that it is clear what the record 1s. It
16 sounds like you've got some ideas. why don't y'all
17 discuss that.
18 MS. KEEGAN: Yes, Your Honor.
19 THE COURT: we can deal with that tomorrow.
20 MR. MORRIS: Yes, Slr.
21 THE COURT: Y'all still want to do 9:00, or do you
22 want to start at 8:30 and make sure we have plenty of
23 time?
24 THE CLERK: You've got a plea at 8:30.
25 THE COURT: What's that?
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1 THE CLERK: You've got a plea at 8:30.

2 THE COURT: 9:00 is okay?
3 MR. MORRIS: 9:00 works, Judge.
4 MS. CAPPLEMAN: Yes, Your Honor.
5 THE COURT: And-- and we're comfortable we can
6 finish tomorrow?
7 MR. MORRIS: Judge, let me alert you, and I've
8 already told Ms. cappleman this, Dr. Maddox, she 1s a
9 medical doctor from out of our jurisdiction; and Florida,
10 given the nature of what her testimony would entail, 1s
11 g1v1ng us a hard time with respect to giving her an
12 exemption to provide an op1n1on. And, apparently, that's
13 required, otherwise, you're practicing medicine without a
14 license or something. we're trying to navigate that with
15 the Florida Board and the doctor.
16 There is a possibility that Dr. Maddox would not be
17 able to testify. There is the possibility that she would
18 be able to. I'm on the side of things that tells me we
19 are probably 75 or 80 percent that she will not be
20 testifying, which, I think would greatly -- greatly
21 shorten things.
22 And the other people that are on the list, Judge,
23 are not going to be called. The two people remaining to
24 be called would be Mr. Friedman and Dr. Maddox.
25 THE COURT: okay. so cave, Fendley, and Tabor,
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1 you're not planning to call?

2 MR. MORRIS: That's accurate.
3 THE COURT: okay. well, that was part of why I was
4 looking at this list.
5 MR. MORRIS: I'm sorry. I had it 1n my brain. It
6 wasn't in yours.
7 THE COURT: But it was making me nervous. I don't
8 want to be back for 30 minutes on Friday.
9 MR. MORRIS: I get it. Other places I would like to
10 be as well.
11 THE COURT: Okay, 9:00 tomorrow then.
12 MR. MORRIS: Thank you, Judge.
13 (The proceedings adjourned for the even1ng at 3:10
14 p.m.)
15 (The transcript continues 1n volume III.)
16
17
18
19
20
21
22
23
24

25

SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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1 CERTIFICATE

2 STATE OF FLORIDA:
3 COUNTY OF LEON:
4 I, SUSAN BRYANT, Registered Merit Reporter, do

5 hereby certify that the foregoing proceedings were taken

6 before me at the time and place therein designated; that my
7 shorthand notes were thereafter translated under my
8 supervision; and the foregoing pages are a true and correct
9 record of the aforesaid proceedings.
10 I FURTHER CERTIFY that I am not a relative,
11 employee, attorney or counsel of any of the parties, nor

12 relative or employee of such attorney or counsel, or

13 financially interested in the foregoing action.
14
DATED this 29th day of November 2018.
15
16
17
18 I '~ ...f<.,
/J, t
---------~~:~~~--~~J:~~--------------------
19 SUSAN BRYANT, RMR, CRR
OFFICIAL COURT REPORTER
20 LEON COUNTY COURTHOUSE
TALLAHASSEE, FLORIDA 32301
21

22
23

24

25

SUSAN BRYANT, RMR, CRR, OFFICIAL COURT REPORTER

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Filing# 81396632 E-Filed 11/29/2018 02:01:49 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

CASE NO.: 2008-CF-697A

STATE OF FLORIDA VOLUME III

vs. (Page 452 through 570)

GARY MICHAEL HILTON,

Defendant.
____________________ ;

PROCEEDINGS: 3.851 HEARING

BEFORE: THE HONORABLE JAMES C. HANKINSON

DATE: November 1, 2018

TIME: Commencing at 9:01 a.m.

Concluding at 12:23 p.m.

LOCATION: Leon county courthouse

Tallahassee, Florida

REPORTED BY: LISA BABCOCK, Official Court Reporter

Notary Public in and for the
State of Florida at Large
Leon county courthouse, Room 341
Tallahassee, FL 32301

LISA BABCOCK, OFFICIAL COURT REPORTER

1462
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1 APPEARANCES

2 REPRESENTING THE STATE:

3 GEORGIA CAPPLEMAN, ASSISTANT STATE ATTORNEY

OFFICE OF THE STATE ATTORNEY
4 LEON COUNTY COURTHOUSE
TALLAHASSEE, FLORIDA 32301
5
and
6
JENNIFER KEEGAN, ASSISTANT ATTORNEY GENERAL
7 OFFICE OF THE ATTORNEY GENERAL
PL-01, THE CAPITOL
8 TALLAHASSEE, FLORIDA 32399-1050

10 REPRESENTING THE DEFENDANT:

11 ROBERT A. MORRIS, ESQUIRE

911 EAST PARK AVENUE
12 TALLAHASSEE, FLORIDA 32301

13

14
INDEX
15
WITNESSES: PAGE:
16

17 ROBERT FRIEDMAN

18 Direct Examination By Mr. Morris 454

Cross Examination By Ms. Cappleman 515
19 Redirect Examination By Mr. Morris 552

20

21 Certificate of Reporter 570

22

23

24

25

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 PROCEEDINGS
2 (Continued from volume II, conducted on 10/31/2018, as

3 follows:)
4 THE COURT: call your next witness, please,

5 Mr. Morris.

6 MR. MORRIS: Defense would call Robert Friedman.

7 THE COURT: If you'd face the clerk and be sworn,

8 please, s1r.

9 whereupon,

10 ROBERT FRIEDMAN
11 was called as a witness, having been first duly sworn, was

12 examined and testified as follows:

13 THE WITNESS: Yes.
14 THE COURT: And just for your edification,

15 Mr. Friedman, we've already established that

16 attorney-client privilege has been waived as to
17 Mr. Hilton, so please answer any relevant questions.

18 DIRECT EXAMINATION
19 BY MR. MORRIS:

20 Q can you state your name for the record, please, sir?
21 A Robert Friedman.

22 Q Let me ask you to spell your last name.

23 A F-r-i-e-d-m-a-n.
24 Q All right. Mr. Friedman, how are you presently
25 employed?

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 A I'm the agency head for Capital collateral Regional

2 counsel North. I was appointed by Governor Scott in

3 January of 2014. I've held that position until this day.

4 Q Prior to your employment with CCRC, where were you

5 employed?
6 A From 1985 to 1993, I was assistant public defender
7 1n west Palm Beach. I worked in both the trial division and
8 the appellate division. I tried approximately 50 cases at
9 that time, and I also briefed approximately close to 200
10 cases. From 1993 to 1997, I was in private practice in west
11 Palm Beach doing mostly state and federal appeals, including

12 habeus corpus.
13 In 1997, I moved to Tallahassee and I worked at the
14 agency I'm presently associated with, Capital collateral

15 Regional counsel North. I was there from 1997 to 1998.

16 During that time, when I first got there, I was assigned Judy
17 Buenoano's death warrant case, so I litigated that case as
18 cocounsel in addition to handling other post-conviction death
19 penalty cases.
20 From 1998 to the time I was appointed by the
21 governor in 2014, I worked in the Leon county Public
22 Defender's office. During that time when I was -- first was
23 hired, I was assigned to the appellate division. As things
24 went on, Ms. Daniels utilized my skills in other ways.
25 One of the cases I handled early on was Andrew

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1 Preston who was subsequently -- it was a capital case. He was

2 declared incompetent and he remained competent. His

3 competency was not restored even to the time I left in 2014.

4 Additionally, I handled the Jimmy Ryce cases, the

5 civil commitment of sexually violent predator cases, for
6 approximately ten years at both the trial and appellate level.
7 I tried approximately 10 to 12 jury trials of the civil
8 commitment cases, which I consider to be complex civil
9 litigation. I also litigated the appeals in the Jimmy Ryce
10 cases, three of which were -- I argued in the Florida Supreme
11 court. Additionally, I was assigned rules committee cases on

12 behalf of the rules committees and did argument -- two

13 arguments in the Florida Supreme court with reference to that.
14 Additionally, I handled -- I remember a

15 post-conviction matter that was in front of Judge Hankinson,

16 Richard Tony Robertson, which was originally a death case that
17 was -- the Florida Supreme court reduced to life. But,
18 nevertheless, we conducted a three-day evidentiary hearing,
19 and I believe that was in front of Juge Hankinson at the time
20 in the early 2000s.
21 I also second-chaired, 1n 2004, a death penalty case
22 with Ines Suber, Coy Evans. we handled -- I worked with her
23 in both the guilt phase and with respect to the penalty phase.
24 I called all four witnesses of -- the expert witnesses in that
25 case, which would have been Dr. wu, Dr. Golden, Dr. Strauss,

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1 and Drew Edwards, a coca1ne addiction specialist. And then I

2 also handled, maybe -- I handled the Graham Miller case at the

3 time.

4 so a lot of what I did in the public defender

5 office's was what Nancy Daniels had asked me to do to utilize
6 my skills. And then in --with respect to Mr. Hilton's case,
7 I first met Mr. Hilton in February of 2009.
8 Q okay. During your stint 1n west Palm Beach as an
9 assistant public defender, were you involved in -- at the
10 trial level with any capital cases?
11 A No. I -- but I did try a second degree murder case.

12 Q And then during your employment in Ms. Daniels'

13 office here at the public defender's office 1n the Second
14 Judicial circuit, were you ever first chair of a capital case?

15 A No.
16 Q And you were second chair 1n one capital case, Coy
17 Evans?
18 A Correct. This would have been the second one.
19 Q when you say the second one?
20 A The second one I was second chair on that went to
21 trial in Leon county.
22 Q This would have been the second one?

23 A Correct.
24 Q Okay. And so 1n Mr. Evans' case, what were your
25 responsibilities in Mr. Evans' case?

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1 A well, in addition to consulting, Ms. Suber -- the

2 way Ms. Suber worked, the second chair worked on everything.

3 And it was obviously important, as being responsible for most

4 of the penalty phase, to know exactly what's going on 1n the

5 guilt phase with respect to aggravating circumstances that may

6 ar1se.
7 The two cases I worked with Ms. Suber, specifically

8 Mr. Evans, I routinely attended all the depositions, did

9 whatever was necessary throughout the guilt phase preparation.

10 And then when it came time for the penalty phase, as I
11 previously stated, I did the four expert witnesses.

12 My recollection is she did the mother who was a lay

13 witness, and I believe there was a tape recording of a jail
14 conversation, and then she did the closing 1n both the guilt

15 and the penalty, although my main role was in the penalty

16 phase was doing the direct examination of the four expert
17 witnesses who I previously mentioned.
18 Q was Ms. Fuentes employed by the office of the public
19 defender at the time of the Coy Evans case?

20 A I believe so.
21 Q she would have been responsible as the mitigation

22 specialist for developing --

23 A I believe so. And then I believe chris Ellrich was

24 employed at the time too, and he would have been the fact

25 investigator.

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1 Q And just for frame of reference, if I'm

2 recollecting, the Coy Evans case was young African American

3 male who was maybe in the process of committing a burglary,

4 surprised by officer Dale Green, caught in the commission of a

5 crime essentially, and then Mr. Evans ended up discharging a

6 firearm and killing Dale Evans [sic]; correct?

7 A Correct.

8 Q And the factual -- I guess the mitigation that was

9 involved 1n his case was -- it involved cocaine usage and that

10 he was high at the time, the effects that that can have on a
11 person, as well as his young age and some other items of

12 mitigation, I guess?
13 A I think another important fact was there -- we had a
14 PET scan done on him and there was frontal lobe damage, so

15 that empirically verified much of the neuropsychological

16 testimony. And we also put on a psychiatrist, and then with
17 respect to the cocaine addiction and its result and the way it
18 affects the brain, we put on Drew Edwards, a individual from
19 Jacksonville.

20 Q Comparatively, it would be a fair statement though

21 that Mr. Evans' case was far more simplistic than
22 Mr. Hilton's?

23 A I wouldn't say far more simplistic. It was

24 obviously -- I would say two of the most high profile cases 1n
25 my 15 years were Coy Evans and Gary Hilton. what made

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1 Mr. Hilton's case more complex was the fact that the documents
2 in his case, because of the Georgia offense, made the case

3 unbelievably voluminous.
4 Q From '98 to 2014, while at the public defender's

5 office, were you ever assigned to a trial division?

6 A No.

7 Q Did you ever try any felony cases during that period
8 of time?
9 A No.

10 Q I've had some difficulty in wrapp1ng my brain around

11 what the definition of "first chair" and "second chair" is/was

12 in the office of the public defender. Tell me what your

13 understanding or your definition of first and second chair was
14 according to how the office ran.

15 A well, historically, when I got there in 1998, Randy

16 Morrell was 1n the capital division. Randy Morrell did -- my
17 understanding, did everything on his own. I mean, he didn't
18 really have too many other assistants working with him, and he
19 would write his own briefs. That was my understanding.
20 I think after he left, Katie Kirwin, K-i-r-w-i-n,
21 took over. And I don't recall how long she lasted in the
22 capital division or how I think she tried maybe one case.
23 I don't recall the name of the case. And then subsequent to
24 that, Ines went into the capital division. I think Coy Evans
25 was her first actual capital death penalty trial, and I worked

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1 with her as second chair.

2 The way Ines operated, the second chair was

3 responsible for knowing everything about the case, guilt phase

4 and penalty phase, so that meant I sat in on probably 90

5 percent of the depositions and did much of the investigation

6 as well, in addition to the penalty phase work. But that's my

7 understanding of during the time period I was there, and then

8 after this trial things changed in the office.

9 Q understood. so there was not a division of labor,

10 so to speak, in the sense that a death penalty case would come

11 into the office, and first chair makes a determination as to

12 which phase that they're going to handle, and they assign the
13 other phase of the trial to the other lawyer?
14 A I think I -- the way Ines operated was that she took

15 control of the entire case and then divvied out what portions
16 of the case you would do. And, you know, I like I said,
17 Coy Evans was the first time I worked with Ms. Suber, and I
18 previous had, you know, much exper1ence working with experts.

19 I enjoy working with expert testimony. so I was definitely

20 assigned all the expert testimony during the penalty phase,

21 and I indicated there were four experts.

22 I think I may have done a Frye hearing in the case.

23 I know I did a Frye hearing in Mr. Hilton's case. And I

24 normally would work on the jury instructions, based on my

25 appellate background, but I would also go with -- use the

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1 assistance of Bill McLain, one of the capital appellate

2 lawyers 1n Ms. Daniels' office.

3 So a lot of the -- I would do a lot of the legal

4 research as well

5 Q okay.

6 A and assist with any pretrial motions. I think

7 even 1n this case, even though much of them are standard
8 motions, I was responsible for the 20 or so pretrial motions
9 in Mr. Hilton's case, as well as the jury instructions and the
10 Frye hearing and --

11 Q To what do you attribute your enjoyment of working

12 with expert testimony as compared to your run-of-the-mill

13 witnesses that we encounter in a trial?
14 A well, I like the intellectual challenge. But I

15 understand during any trial situation and working on these

16 cases, you've got to get down and dirty, for lack of a other
17 way -- other way to say it. You know, you have to go -- you

18 know, I went out and did, you know, whatever investigation I

19 could with witnesses. For any case, you have to -- you know,
20 we don't necessarily pick our witnesses in any case, whether
21 State or defense.
22 But I did enJOY -- as I said, I did like working --

23 for the intellectual challenge, working with experts. That's

24 why I would do the Frye hearings and work with the expert
25 witnesses. But I also met with witnesses when I could and

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1 assisted 1n trying to track them down.

2 Q would you have a preference by way of example, if

3 you had to choose one over the other, would you prefer to take

4 direct examination of a DNA expert as compared to direct

5 examination of a lead detective or lead investigator on a
6 case?

7 A I probably would say the DNA expert.

8 Q okay. using your words, because of the intellectual

9 challenge that's involved in it?

10 A Correct.
11 Q okay. Let's talk about when Mr. Hilton's case came

12 into the office of the public defender. You said that you
13 first met Mr. Hilton in '09?

14 A Correct, February of 2009. I met him with Ms. Suber

15 and Tracy Record. The three of us went to the jail.

16 Q what were the circumstances surrounding why you were

17 meeting with Mr. Hilton? And really what I'm trying to get at
18 is, have you been brought into the capital unit now at that
19 point, or were you just assisting on the periphery? Tell me

20 how you first kind of came in contact with the case.

21 A At some point in time, probably prior to the time I

22 met Mr. Hilton, I must have had a conversation with

23 Ms. Daniels or Ms. Suber, because I recall that Ms. Record

24 didn't last much longer in the division. So I kind of -- I

25 came 1n as, from what I recall, the second chair, and so

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1 that's when I first met Mr. Hilton to introduce myself.

2 And then typically what I would do is -- even I had

3 very limited access to my files in the public defender's

4 office because I had -- I'd been gone for close to five years
5 now. I did do -- what I would typically do is after I met
6 with Mr. Hilton, I would sit in the parking lot of the jail
7 and I would use an old-school handheld Dictaphone, come
8 back -- and dictate my notes, and I would come back to the
9 office and have it transcribed.
10 And that would be something that I would
11 subsequently send to the experts to see, you know, 1n addition

12 to speaking with them. But they would also have my present

13 sense impressions as soon as I left the jail so I don't forget
14 things.

15 Q so you came into the case in February of '09. Your

16 recollection is that Ms. Record didn't last much longer in the
17 division. Ms. Record would have been regarded as a, quote,
18 second chair. You would have been regarded as a second chair.
19 And essentially you were asked either by Ms. Daniels or
20 Ms. Suber to come on board to the case. Do you remember any
21 specific reason why?
22 A They were utilizing my exper1ence because this was a
23 real you know, this was a real death penalty case that was
24 not likely to get settled.

25 Q Utilizing your experience for what? were there

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1 particular issues, evidentiary issues that you needed to focus

2 on, JUry instruction issues that you needed to focus on or --

3 A I think just utilizing my exper1ence in general as

4 you know, my trial, appellate, working with expert -- my

5 general exper1ence as a lawyer.

6 Q okay. so you didn't have any particular task or
7 reason that you were brought on board. You were go1ng to be
8 part and parcel of the team from that point forward?
9 A Right. I was looking yeah. And I looked forward
10 to working on the case. And as it turned out, it turned out
11 to be a good result in this world of capital litigation.

12 THE COURT: Are you talking about Evans now?

13 THE WITNESS: Correct. He was -- the jury came back
14 life.

15 THE COURT: I think we switched between Hilton and

16 Evans.
17 THE WITNESS: Oh, I'm sorry.
18 BY MR. MORRIS:
19 Q Yeah. I was -- I was not understanding exactly the
20 answer. Let me rephrase.
21 A Okay. Rephrase there. Okay.
22 Q You first came into the -- contact with Mr. Hilton
23 1n '09?
24 A Correct.

25 Q Functioned as -- either Ms. Suber or Ms. Daniels

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1 asked you to come on board?

2 A Correct.

3 Q You did not have a defined role of focusing on

4 particular evidentiary 1ssues. You were simply going to be

5 second chair utilizing your experience to help the case, or
6 were there specific aspects of the case that you were --
7 A well, at first, I mean, as we were working up the
8 case, you know, I did whatever was necessary. As we got
9 closer to trial, then the task became more specific to the
10 case.
11 Q understood.

12 A But in the beginning of the case, it was a question

13 of just working the case up. And as I indicated, the way
14 Ms. Suber operated, she expected the second chairs to be part

15 and parcel of the guilt phase investigation.

16 Q when you
17 A And that would include sitting 1n on -- sitting 1n
18 on, you know, most of the depositions or, you know, if we
19 had divvying up some of the depositions as well.

20 Q when you came into the capital division to assist

21 Ms. Suber, what was your understanding of the strategy or --

22 THE COURT: And I think that's where we got

23 confusion last time, Mr. Morris, because when he came

24 into it was to help on the Evans case. And now if you're

25 talking about Hilton, we're getting things mixed

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 together, I think.
2 BY MR. MORRIS:

3 Q Let's stick with Mr. Hilton. we can put Mr. Evans

4 to the side now.

5 when you came into the capital division on
6 Mr. Hilton's case, what was your understanding of the theme or
7 strategy related to Mr. Hilton's defense?
8 A well, we were working it up all along. we were
9 still hopeful of settling the case, but it became pretty clear
10 with Mr. Meggs that that was not going to be an option, so we
11 did everything we could to investigate the case. And it

12 really came down to that it was going to be a adversarial

13 testing of the State's case and make the State make the
14 State work for -- work for it. And I think we and I think

15 that was the strategy. As it became clear as time went on, I

16 mean, it was almost -- you know, if I was on 1n '09, it didn't

17 go to trial until 2011, but we worked all along to try and

18 settle the case.
19 Q From -- who was go1ng to handle, at the inception of
20 your involvement with Mr. Hilton's case, who was going to
21 handle the guilt phase and who was go1ng to handle the penalty
22 phase?
23 A well, it was clear that Ms. Suber was go1ng to
24 handle the guilt phase. There was really no question about
25 that. You know, Ms. Suber kind of works things up, and then

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1 as time goes by, she makes the decisions as the lead attorney.
2 But, I mean, I think I was brought in to do a lot of penalty

3 phase work, which I did with consultation with Ms. Suber.

4 Q Initially Ms. Ines Suber then was the architect of

5 how the defense of the guilt phase would be designed, and also

6 through consultation with you, she would have been the

7 architect of how the penalty phase was to be presented?

8 A Correct. It was a developing theme, I mean, as 1n

9 all cases.
10 Q so for the purposes of the guilt phase, the
11 strategy, as you mention, was to hold the State to task and

12 force them to meet their burden of proof to prove Mr. Hilton's

13 guilt beyond and to the exclusion of a reasonable doubt?
14 A Yes.
15 Q Then with respect to the penalty phase, as you, in
16 the initial portion of it, worked it up, 1s the phrase that
17 you've used, what did you do to work up the penalty phase?
18 A well, I worked with both Betty and Ines, and at
19 times, with chris Ellrich, and as Betty would go through
20 various witnesses and kind of go through the memo she gave us,
21 and we would have meetings to discuss them. And subsequent to
22 that, we started deciding, you know, what particular experts
23 we may or may not use as more and more mitigation worked up --
24 was being worked up by Betty, Betty Fuentes.

25 MR. MORRIS: May I approach the witness, Judge?

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1 THE COURT: You may.

2 BY MR. MORRIS:

3 Q Let me show you what's been entered into evidence as

4 Defendant's Exhibit No. IV. See if you have any familiarity

5 with that document or recognize that document.

6 A I recognize that document. And although I was
7 unable to locate it, I believe, in the -- in the public
8 defender's office when I went there after the court entered an
9 order for the public defender's office to allow myself and the
10 State to look through the files, but I was able to get from
11 the federal public defender who, I guess -- a number of

12 Betty's memos and work, whatever

13 Q In working up the penalty phase, how many of those
14 mitigation witnesses that Ms. Fuentes developed did you have

15 the opportunity to physically meet with?

16 A I did not physically meet with any of the witnesses
17 with Betty.
18 Q would it be fair to say that Ms. Fuentes was the
19 person responsible for identifying and developing mitigation

20 witnesses, people who could speak to Mr. Hilton's life?

21 A Correct.

22 Q were you reliant upon Ms. Fuentes working those up

23 as compared to you being responsible for working those up?

24 A Yeah. she was the mitigation specialist.

25 Q so when we talk about working up the penalty phase,

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1 did you have interactions with the expert witnesses 1n

2 preparation for Mr. Hilton's trial?

3 A Yes.
4 Q so your interactions with penalty phase witnesses,

5 direct interactions with penalty phase witnesses, was it

6 strictly limited to those expert witnesses?

7 A I spoke with who I could on the phone. I mean, I

8 didn't go out -- you know, I spoke with witnesses on the

9 phone.
10 And just to be clear, as mitigation was being
11 developed in the case and it became more clear which experts

12 were going to be utilized 1n the case or even not utilized 1n

13 the case, I personally would update witnesses with whether it
14 be record -- records or witness memos that I thought would be

15 helpful as we developed a theme. so I did that on my own.

16 And I would have -- I would send a letter, you know, Dear
17 Doctor, you know, Strauss, please find enclosed, you know,
18 Betty's memos or Betty's -- a lot relying heavily on Betty.
19 Q what was the theme that was being developed for the

20 purposes of the penalty phase?

21 A As it became -- as time went by, as we, you know,

22 got the experts together -- Dr. wu did a PET scan; we had the

23 information on that. But the short statement would be that

24 there was brain injury from the Murphy bed that was that
25 Dr. wu spoke about as far as empirically through the PET scan,

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1 and we used a neuropsychologist to do neuropsychological

2 testing which coincided with the empirical evidence shown by

3 the PET scan, and then we utilized a psychiatrist with a

4 background in psychopharmacology, and additionally a

5 psychopharmacologist.
6 Basically the theme was that brain injury, the
7 emotional abuse that he suffered throughout his life, and then
8 the Ritalin, the, you know, ill-prescribed Ritalin that he was
9 taking in addition to other -- I believe it was Effexor was --
10 I guess was described by many of the expert witnesses as the
11 gasoline on the fire. so I would say those were the three

12 ma1n areas in developing in what I tried to present to the

13 JUry.
14 Q And you mentioned that Ms. Fuentes developed

15 memorandums as it related to each of the witnesses that she

16 interviewed. And if I'm hearing you correctly, if you felt
17 that those memorandums contained information that would be
18 relevant to the doctors being able to evaluate the
19 circumstances or that they would impact the doctors' op1n1on,

20 you would forward those on to the expert witnesses?

21 A Yes. That would be my practice.

22 Q okay. Let's shift gears just a little bit. It's

23 been it's been said that Ms. Suber was difficult to work
24 with. How would you characterize your involvement with
25 Ms. Suber during the pendency of the Hilton case?

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1 A well, I obviously -- s1nce I had worked previously

2 with Ms. Suber, I mean, I know what it was like working with

3 Ms. Suber. And, yes, that would be a word "difficult"

4 would be a word to describe working with her, but yet I always

5 had a high regard for the work she did. she was very
6 meticulous and she was a very good lawyer who had very good
7 results.
8 And so that -- if I didn't think that, then I would
9 not have gone into the Hilton case if I didn't think I could
10 work with Ms. Suber but -- you know, so I knew what I was
11 getting myself in involved 1n. But during the pendency of the

12 case, there came a point in time where things changed.

13 Q well, and I was getting ready to ask, your
14 exper1ence in the Hilton case as it unfolded your

15 exper1ence with Ms. Suber in the Hilton case as it unfolded

16 became drastically different than your prior experience with
17 Ms. Suber?
18 A Correct. And I think -- and I think when it really
19 changed was when the motion for continuance was denied 1n
20 October or November of the prior -- of 2010.
21 Q Tell me about prior to the motion to continue 1n
22 October or November -- prior to the filing of that motion, was

23 the structure still Ms. Suber first chair, you're second chair
24 and focused on penalty phase?
25 A Correct.

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 Q was
2 A And 1n addition to -- you know, I -- you know, I

3 worked on the Frye motion because that was a big 1ssue, we

4 thought, in the case.

5 Q when we say the Frye issue --

6 A It was a tool mark evidence.

7 Q Tool mark compar1sons --

8 A Right.

9 Q -- with Jeff Foggy from FDLE, I think?

10 A Correct. And I believe we hired Adina schwartz

11 from I forget which college it was in New York.

12 Q who talked about --

13 A John -- I think it was John Jay school of Criminal
14 Justice.

15 Q who talked about the subjectivity versus it being a

16 hard science?
17 A Correct.
18 Q which is what you were fighting against essentially?
19 A Right. so I focused -- you know, like I said, we

20 worked 1n concert together, both guilt and the penalty. So, I

21 mean, even though I may have been focusing on penalty, I was

22 still working the guilt phase and, like I said, taking

23 depositions with her and --

24 Q what other lawyers were helping you with preparation

25 of the penalty phase?

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1 A I would say that --

2 Q Prior to the continuance motion?

3 A pr1or to the continuance, I think it was mostly

4 me and Ines.

5 Q what about Ms. Bohanan?

6 A I don't recall much interaction, myself, with

7 Ms. Bohanan. And, quite frankly, I wasn't really clear on

8 what her role 1n the case was, quite frankly. I didn't have

9 much interaction with her.

10 Q You didn't view Ms. Bohanan as a participant 1n,
11 I'll describe it as, the penalty phase team, meaning that

12 you're going to be responsible for the examination of

13 witnesses, she's going to be responsible of it? You weren't
14 clear on what she was doing?

15 A No. Although I knew she had a good relationship

16 with Betty, yeah, I was not clear what her role was in
17 general.
18 Q Tell me what happened when the motion to continue
19 was denied. whether it be October or November is

20 inconsequential, but what happened?

21 A I believe it was November, but there was noticeably

22 more pressure. I mean, this was a high profile, difficult

23 case, and so there was always pressure with this case knowing
24 that it was unlikely to settle and the pressure became more

25 intense.

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1 Q And you attribute that pressure to the change 1n

2 Ms. Suber or --

3 A well, I mean, I think in general, knowing that the

4 case was going to trial within 90 days and trying to get

5 everything that needs to be done in a 90-day period really
6 gets you focused in on the intensity of the case. But there
7 did come a time when things with Ms. Suber changed even more,
8 and that would have been toward the end of November, I think,
9 or it became different than her being difficult --
10 Q Explain --
11 A -- 1n my op1n1on.

12 Q Explain that.
13 A A lot of -- I mean, without g1v1ng you my
14 clinical I don't have a clinical opinion. I'm not a

15 doctor. But there became times where e-mails were being sent
16 out at 2:00, 3:00 in the morning, which, in my opinion,
17 whether it's a -- whether it's a competent opinion or not,

18 seemed to be somewhat psychotic.

19 And I know -- I don't really know the reasons,

20 although I know the fact that, you know, Ms. Suber always went
21 to colombia for extended period of time to see her family 1n
22 December. Now with the continuance, that was not an option.

23 I think that really in my opinion; I don't know for sure --

24 really affected her.

25 And I recall 1n early December, even for myself, I

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1 took a few days off to get my batteries charged for the, you
2 know, the long -- you know, the duration and preparation. I

3 took a few days to go to the Keys, and I remember getting a

4 call from Nancy Daniels about, you know, something needed to

5 be done about the case, and I think that was about the time
6 when either Ms. Daniels was thinking about putting in Nicole
7 Jamieson or Paula saunders to assist in the case.
8 Q were you concerned in late November -- you've used
9 the word "psychotic" -- in late November, early December for
10 Ms. Suber's mental health wellbeing?
11 A of course.

12 Q To you, there was something wrong?

13 A Right. I mean, you know, difficult 1s one thing,
14 and what was go1ng on was something different. And I had a

15 good relationship with Ms. saunders, and Ms. saunders had

16 worked with Ms. Suber for, you know, a number of years, and,
17 you know, we both -- you know, we talk. we knew that, you
18 know, Ines was difficult but we had high respect for her, but
19 this was different.

20 Q To that point, though, to the -- to the time that

21 you received that phone call in the Keys, Ms. Suber was still

22 the proverbial boss of the case? she was the first chair?

23 A Correct. I mean, that would have been -- yeah.

24 Anything that happened after was Ms. Daniels' call but you're

25 correct.

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1 Q Did you report to Ms. Daniels your concerns over

2 Ms. Suber's wellbeing and ability to guide or steer or prepare

3 the case?
4 A I had a couple conversations with Ms. Daniels when I

5 got back and then subsequent too in December.

6 Q That prompted Ms. saunders being brought into the

7 case to assist as well?

8 A correct.

9 Q was she tasked with any particular aspect of the

10 case?
11 A I mean, that was a big calling for Paula saunders to

12 come 1n the case at that period of time. This case was

13 voluminous. I think she was working on some guilt phase. I
14 mean, I -- or she was assisting Ines with developing the guilt

15 phase.
16 I would keep in contact -- I would talk -- you know,

17 I had a good relationship with Paula, and I would talk to her

18 about penalty phase issues. But, yes, she did what she could
19 in the, you know, three months, maybe, she was on the case. I
20 don't recall how long she was on the case.
21 Q At some point in time a decision 1s made by
22 Ms. Daniels that Ms. Suber is not going to be responsible for
23 the examination or preparation of both the guilt phase and the
24 penalty phase. when did that occur?

25 A That occurred when I -- in early December, that it

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1 became clear that I needed to -- I couldn't deal with the

2 extracurricular activity. I don't know if that's the right

3 way to put it, but this case was difficult enough so I said

4 that I need to focus.

5 You know, I need to do what I need to do to do the
6 penalty phase, and that kind of caused sort of a separation
7 between myself and Ms. Suber. And I had a long working
8 relationship with Julie Hartwein in the appellate division and
9 Jimmy Ryce cases, and she was already assigned to assist with
10 media and other things in the capital division.
11 so, you know, I had -- rather than going through

12 Faye Darn, D-o-r-n, Ines' assistant, I kind of-- I kind of

13 just dealt with Betty, Julie, Paula, chris Ellrich, and
14 became less and less allowing Ines to micromanage, because I

15 felt as though I needed to focus on putting this case

16 together.
17 Q It was at that point though in December that, with
18 60 days to go before trial roughly, that you take the helm and
19 responsibility for preparation of the penalty phase, getting
20 the witnesses rounded up, being prepared for direct
21 examination, and then also combating the aggravators that the
22 State is presenting?

23 A That 1s accurate.
24 Q Ines 1s now out of the picture and she doesn't have
25 a say 1n your construct of the penalty phase?

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1 A Correct, although I still think we had -- I know we

2 still had a couple of meetings in the conference room to let

3 everybody know still what's going on. As dysfunctional as it

4 was, there were -- you know, we still met in the conference

5 rooms. I think, you know, Ms. Daniels also wanted to keep

6 abreast of what was going on.

7 Q Let me show you what's been entered into evidence as

8 State's Exhibit 2. And I don't know whether you'll recognize

9 that or not, but see if you do.

10 A I recognize it.
11 Q what do you recogn1ze it as?

12 A As a mitigation witness-- for trial. And I

13 recogn1ze it because it was provided to me, I think,
14 yesterday.

15 Q okay. Fair enough. You had not seen that during

16 the pendency of Mr. Hilton's trial?
17 A I do not recall seeing it and I do not recall see1ng
18 it in the time I went to the public -- like I said, I was out
19 of the public defender's office since 2014. when we went
20 there, I don't recall seeing it.
21 Q Did you discuss in the 60-day run-up to Mr. Hilton's
22 trial, did you discuss with Ms. Fuentes the witnesses that she

23 believed would be pivotal or crucial to present to the jury?

24 A Yeah, we had conversations.
25 Q Did she identify particular witnesses to you that

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1 would be of some import to the jury understanding the

2 chronological story of Mr. Hilton's life?

3 A Yes. And I respected her op1n1on.

4 Q would you have been responsible for the 1ssuance of

5 subpoenas for the penalty phase?

6 A No, except for, I believe, Dr. Delcher and

7 Mr. Tabor. That involved, since they were -- s1nce they -- at

8 the time we had to go through getting a certificate of

9 materiality. And I know that to get an out-of-court --
10 out-of-state subpoena from Fulton county in Georgia -- and I
11 recall Dr. Delcher having a lawyer who I had conversations

12 with, and I actually did a telephonic hearing with a judge

13 1n -- from Fulton county with respect -- so those are the only
14 two that I would have been involved with.

15 Q And everybody's office works differently.

16 A Right.
17 Q At some point 1n time among the penalty phase team
18 or group, the mitigation group, I suppose that witnesses are
19 identified that are going to be presented to the jury and

20 or may be presented to the jury, and subpoenas are issued for

21 them or contact is made to make certain that they're going to

22 be present; is that accurate?

23 A Yes.
24 Q Someone would have been instructed, maybe
25 Ms. Hartwein or another assistant in the office, You're

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1 responsible for getting these subpoenas out. You might have

2 signed them or another lawyer might have signed them?

3 A Or chris Ellrich.
4 Q Fair enough. Do you know who was subpoenaed?

5 A without seeing it through the file, I don't

6 recollect, but I did not subpoena unwilling witnesses. so

7 anybody that's -- that received a subpoena would have been a

8 witness that I thought would be helpful or was not unwilling

9 to testify.
10 There were instances where a lot of the lay
11 witnesses, while they may have been helpful witnesses, what

12 they may have said to Betty and then when I spoke with them to
13 say, you know, will you be willing to come testify on behalf
14 of Mr. Hilton, that became a different story. And I didn't

15 necessarily issue a subpoena to somebody, a lay witness, that

16 may have seen him hiking in 2006 or 2007 that was not willing
17 to testify.
18 Q would Ms. Bohanan, Ms. Suber, or Ms. saunders have
19 had the autonomy to issue subpoenas for witnesses in the
20 penalty phase that they believed were relevant?
21 A I don't think they would have done it without
22 consulting with me.

23 Q okay. Do you recollect how many lay witnesses you

24 had under subpoena?
25 A I don't recall which ones I had under subpoena, but

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1 I do know which witnesses were called.

2 Q The record --

3 A Reflects that.
4 Q -- reflects

5 A Correct.

6 Q -- who was called?

7 A Correct. But as I indicated, if there was an

8 unwilling lay witness, I didn't serve them a subpoena because

9 they wouldn't I mean, I didn't think they would be helpful,

10 either that they wouldn't be helpful or, possibly, a thought,
11 maybe it was duplicitous. I don't know. It depends on what

12 we were talking about.

13 Q By the time that we get to trial, you made a
14 judgment call at some point in time where, according to some,

15 caused consternation, a rift, people quit. Explain what

16 happened there from your perspective.
17 A From my perspective, Betty was upset with me when I
18 made a determination in my professional judgment that I did
19 not want to call Dr. Delcher or John Tabor. And the reason
20 why I did not want to call Dr. Delcher is because in one of
21 Betty's memos, he -- it was written that he thought that
22 Mr. Hilton was dangerous. I had a phone call with Mr --with
23 Dr. Delcher, and he also told me on the telephone that he
24 thought Mr. Hilton was dangerous.
25 when I heard that and I thought about it, the last

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1 thing I wanted to do in a case that had s1x aggravating

2 circumstances, have an additional nonstatutory aggravating

3 circumstance that could possibly come out that Mr. Hilton was

4 dangerous.
5 Given the fact, you know, the record shows that he
6 was sanctioned by the Georgia school -- excuse me, Georgia
7 Board of Medicine. I went on -- we had that presented. And I
8 got out all of -- I believe I got all of Dr. Delcher's
9 testimony through the four expert witnesses. It's why you
10 have expert witnesses.
11 with respect to Mr. Tabor, he hated Mr. Hilton. He

12 was a hostile witness. Again, he had a Georgia Bureau of

13 Investigation interview as well as a deposition that was taken
14 and that was provided to all the experts. But that was a big

15 deal, Betty getting very upset with me about not calling

16 Dr. Delcher.
17 she thought, which may or may not be true, and I
18 recall her saying that she thought he was a quack and that
19 would have been good to present to the jury. But when I
20 weighed quack versus dangerousness, I opted to go the route
21 that I went, for better or worse.
22 Q was Ms. Fuentes' frustration or disagreement with
23 you, was it strictly limited to your decision not to call
24 Delcher and Tabor, or was it that you were also not going to
25 call other lay witnesses?

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1 A That may have been the case. I don't recall every

2 one of our conversations. The only other thing I would add is

3 that obviously everybody is under a lot of stress during this

4 case, and she was putting together the life history

5 PowerPoint. And that was -- you know, as we were getting

6 closer, in my opinion, that was, you know, never really fully

7 completed, notwithstanding what happened in court, her

8 leaving.

9 But, you know, I don't -- you know, we probably had

10 conversations about what witnesses I was going to call or not

11 call, but as I said, there were lay witnesses that, you know,

12 I see on this particular list that, yes, would have been

13 helpful but may not have been willing to testify.
14 Q Do you know that the witnesses on State's Exhibit 2

15 were unwilling to testify?

16 A I would have to go through every one of them. I
17 don't -- you know, I don't know. But I did not see when I

18 went to the public defender's office to look in my file -- my

19 custom and practice would have been, for example, to, you

20 know, have a pile of witnesses here. These are good

21 witnesses. In this pile, these are bad witnesses. So if I

22 thought the witness would have been helpful, I would contact

23 that witness and I would make notations. But as I indicated,

24 I didn't -- I went there and I didn't see everything in the

25 files there.

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1 so a lot of -- so what I have are the memos -- I

2 mean, I'm just pointing but that's not them --were what I

3 received from the federal defender's office and a couple of

4 the memos we may have copied at the public defender's office.

5 so I didn't see memos with my notations on them.
6 Q The term "streamlined" has been used 1n terms of
7 what the presentation in the penalty phase was going to be.
8 when did you make the decision that the penalty phase would be
9 limited or restricted to the experts, the lay witnesses that
10 testified, and the PowerPoint presentation?
11 A when?

12 Q Yes, sir.
13 A As close in time as possible. And I -- and I may
14 disagree with the term "streamline." You know, I think

15 that-- well, we all would have enjoyed more time to do the

16 case. I did think that, you know, I did the best I could
17 under the circumstances, and I did try and establish, 1n my
18 judgment, through the expert witnesses and I tried to
19 establish the two statutory mental health mitigators which the
20 Florida Supreme court has found to be the most weighty. so I
21 did spend a lot of time with the expert witnesses and I did
22 was able to see that I had at least close to ten nonstatutory
23 mitigators, which, of course, is part of the record and part
24 of the sentencing order.
25 so I don't necessarily consider that to be

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 streamlining. But, yeah, when you use experts, you get a lot
2 of testimony out through the experts. So whatever memos I

3 provided them -- like I said, I didn't see my letters to the

4 experts.

5 Q And when you say -- when you make mention of the two

6 mitigators that the supreme court says are the most weighty,
7 that's a more cerebral and legal conclusion, though, that we,

8 as lawyers, deal with in reviewing appeals of these type of

9 cases?
10 A That would be correct. But I think when you do a
11 capital case, or any case really, you need to be cognizant of

12 the appellate record if things don't go your way. And

13 quite -- and having done post-conviction death penalty, you
14 know, I was cognizant of that. I was trying to make the

15 record the best -- the best I could in the event we didn't get
16 a life sentence.
17 Q So you take issue with my term "streamline." Let's
18 put that aside and not worry about it. But when did you make
19 the decision that those four experts and the lay witnesses who
20 testified were going to testify? You said as close in time to
21 trial as possible?
22 A Correct.

23 Q was there a larger group of people that were under

24 subpoena that were available to provide information if you had
25 so chosen?

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1 A As I said, if I spoke to somebody on the phone, a

2 lay witness that was really unwilling to testify, then I

3 didn't subpoena them.

4 Q And I'm clear on that. I'm asking 1n the larger

5 picture, though. There were other witnesses that were coming

6 and available and could have testified to things that weren't

7 adversarial or combative?

8 A I without -- as I said, without looking at the

9 memos and the notations, it's hard for me to respond to that

10 question, although, you know, I would not I wasn't trying
11 to limit, oh, I'm only going to call, you know, 10 witnesses

12 or 11 witnesses. I believe it was 11 and the four experts.

13 If there were more that were willing, I would have
14 called them, but when I spoke to them on the phone, a lot of

15 them were unwilling. And, quite frankly, those would be

16 the ones that I didn't call that would have been helpful
17 presumably, those would be the ones you'd be calling here 1n
18 the post-conviction.
19 Q If I understand your testimony correct then, the

20 witnesses that were called were the only ones that were
21 willing to -- were the only ones that were willing to

22 participate in the penalty phase. There were not other

23 witnesses that were willing?
24 A That would be a fairly accurate statement. I mean,
25 like I said, without looking at, you know, my memos -- excuse

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 me, without looking at the memos, without my notations, I

2 can't answer it any other way. But I wasn't going to not -- I

3 didn't streamline it, well, we're only go1ng to call one

4 witness for this period or one witness for that. You know, I
5 tried -- whoever I thought would be helpful is who I called.
6 But that's not to say in subsequent investigation, there may
7 be other witnesses that would be helpful.

8 Q And among those witnesses that were willing, you

9 made the decision to -- not to call Delcher and Tabor? And I
10 understand your qualification, that -- as to the drawbacks to
11 Delcher and the drawbacks to Tabor.

12 A Correct.
13 Q But you made the decision to eliminate or exclude
14 them from

15 A Live testimony.
16 Q Correct.
17 A use them through the experts.
18 Q what was the concept of the PowerPoint? what did
19 you find to be the strength of the PowerPoint presentation?

20 A The PowerPoint would have shown Gary Hilton's life,

21 you know, if we had, from the time, you know, he was a child,
22 baby pictures, through the time period -- how many times he
23 moved around, different houses. I thought that was
24 particularly important with respect that he grew up 1n a
25 financially poor family. I think one of the pictures may have

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 depicted a housing project. It just gave a good life history

2 of him.

3 And obviously it was -- a lot of what was there was

4 objected to, and we made a determination, and I remember

5 consulting with Ms. saunders and Ms. Suber, well, we can't get

6 it in in its entirety. we're not going to have-- go in

7 piecemeal, and let the Florida Supreme court sort it out. But

8 apparently the appellate lawyer did not raise that as an issue

9 on direct appeal so --

10 Q what was the basis of the objection to the

11 PowerPoint?

12 A Most of it was a relevant -- most of it were

13 relevant objection -- irrelevant, the State would argue, and
14 it was sustained by the court.

15 Q Meaning
16 A so we -- so we proffered -- my recollection is we

17 proffered the PowerPoint, what we would have presented to the

18 JUry, and it was not raised on appeal. so perhaps down the
19 road, it may be an appellate habeas issue; I don't know.

20 Q And I want to see if I can give an example. And I

21 think I understand pretty clearly, but by way of example, if

22 the PowerPoint presentation included a picture of Mr. Hilton's

23 birth certificate, the State says objection, relevance, and

24 the court makes whatever decision it makes. Let's make the

25 assumption that it excludes it because what's the relevance of

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 the jury see1ng a birth certificate? Am I on task here 1n

2 terms of my understanding?

3 A well, yeah, that would be what happened 1n the

4 courtroom.

5 Q what witness was able to testify to Mr. Hilton's

6 mother having come from a neglectful environment and that she

7 entered into a similarly neglectful marriage with Mr. Hilton's

8 father?

9 A Are you asking me from the PowerPoint?

10 Q In general. witnesses.
11 A I believe Ms. Castelli and -- who did -- who did

12 testify, Maria Castelli, C-a-s-t-e-1-l-i. I believe--

13 Q She was able to speak to Mr. Hilton's mother having
14 been 1n a prior neglectful relationship prior to her

15 association with Mr. Hilton's father?

16 A Not -- no. That was more so with the relationship
17 with, I believe it was, Nilo.
18 Q was the witness able to testify to the --
19 Mr. Hilton's mother and father's relationship and the

20 volatility of it?
21 A To an extent. And I believe Sandy carr also

22 testified how they didn't get along.

23 Q were either of them able to discuss abusiveness,

24 sustance abuse 1ssues 1n the relationship?
25 A I believe -- I don't believe so.

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 Q were either of them able to testify that

2 Mr. Hilton's father was murdered by a lady at a later point 1n

3 time because of his abusiveness and substance abuse?

4 A You're talking about the biological father?

5 Q Correct.

6 A No. And with respect to the biological father, he

7 was murdered when Gary was at a very young age. He never had

8 any relationship with the biological father. Even though I

9 recogn1ze in capital cases to go back X number of generations,

10 since Mr. Hilton -- Gary Hilton had no relationship with the
11 biological father, that was sort of something that was not

12 further presented.
13 But it was -- I believe it did come out 1n the
14 information that was provided to the experts, and I believe

15 that was one of the nonstatutory mitigators, that Mr. Hilton

16 was deprived of a relationship with his biological father.
17 And whether or not it could be more fully fleshed out in
18 post-conviction --

19 Q were the lay witnesses able to -- and you make a

20 good point in terms --

21 THE COURT: when you get to a good stopping point,

22 Mr. Morris -- we've been going about an hour. It'd

23 probably be good for a break, but --

24 MR. MORRIS: we can take a break right now, Judge.

25 THE COURT: -- pick a time -- pick a time that suits

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1 you.
2 MR. MORRIS: Right now will be fine.

3 THE COURT: All right. Why don't we take ten

4 minutes.

5 (A recess 1n the proceeding.)

6 THE COURT: You may proceed, Mr. Morris.

7 MR. MORRIS: Thank you, Judge.
8 BY MR. MORRIS:

9 Q where we left off was you made mention 1n your

10 response that you understand the generational thing related to
11 a defendant -- or Mr. Hilton's parentage and lineage. Despite

12 Mr. Hilton not having had a relationship with his father, what
13 witnesses were able to testify to Mr. Hilton's biological
14 father's mental health 1ssues, substance abuse issues, and

15 propensity toward violence?

16 A Anything -- I mean, I don't recall all the testimony
17 from the from the mother, cleo Debag. I think whatever
18 information we had was provided to the experts and that's I

19 mean, I think that they testified about that he never had a

20 relationship with his biological father.
21 But with respect to all the -- whatever mental
22 health issues, I don't I don't recall having that much
23 information on that to go do -- to hire geneticists or do some
24 type of epigenetic expert to talk about how it may have
25 affected Mr. Hilton.

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 Q were you aware and were witnesses called with

2 respect to other male members of Mr. Hilton's family on his

3 father's side evidencing mental health issues and violence?

4 A There was not much information that we had with

5 respect to the biological father other than some general

6 information as to he was, you know, 1n the military, he was

7 previously married, and whatever -- mostly what cleo Debag

8 gave us.

9 Q You mention -- and cleo Debag being Mr. Hilton's

10 biological mother?
11 A Correct.

12 Q what witnesses were called that were able to speak

13 to Mr. Hilton's impoverished childhood with a single mom?
14 A well, cleo Debag was, I would say, the main witness

15 who described how many times they moved, all the different
16 schools. And the information was provided to the experts, and
17 I believe most of them spoke to how he moved a lot and how
18 that affected him, as well as --
19 Q when you say most of them, you're talking about the

20 expert witnesses are saying

21 A That were called, right. They provided that

22 information. I think that's -- between cleo Debag and the

23 expert witnesses was predominantly how we tried to establish

24 those nonstatutory mitigators that -- you know, how he grew up

25 1n a financially poor family, no relationship with the

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 biological father, and the issue with respect to, you know,
2 maternal deprivation or lack of bonding between the mother and

3 Mr. Hilton.
4 Q But there weren't witnesses that were able to

5 testify to the condition of their apartment or Mr. Hilton

6 having rheumatic fever or --

7 A The rheumatic fever, I believe, no set -- no lay

8 witnesses, but that information I know came out through at

9 least one of the experts with respect to the rheumatic fever.

10 And the information with respect to the mother and the
11 biological father, as well as the step-father, Nilo, I mean,

12 the record established what the experts said about that.

13 Q were there any lay witnesses that were able to
14 describe the deterioration of Mr. Hilton's relationship with

15 his mother?
16 A Give me one second. I believe Castelli talked a lot
17 about how Nilo didn't accept Gary; that she was not a loving
18 mother, not affectionate, cold; never saw Ms. Debag show love
19 to Gary; chose Nilo over Gary; he grew up alone; she was

20 selfish and cold. so I think Maria Castelli talked a lot

21 about that.

22 Q And she was able to talk about the circumstances

23 that culminated in Dade county, based on the abusiveness 1n

24 the relationship that resulted in, at the age of 14,

25 Mr. Hilton having shot Mr. Debag?

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1 A I think we had a lot of other record evidence to

2 establish that. I don't recall additionally how much she

3 spoke about that.

4 Q That would have come in through the expert?

5 A Correct. I think they all -- that was pretty clear

6 that that came out at the time when he shot the father, but I
7 remember we had much difficulty getting records from Jackson

8 Memorial Hospital in Miami because I believe he may have been

9 in a psychiatric unit at the time. But we were unable to get
10 those records; or the doctor -- I believe it was a Dr. Emerson
11 who was deceased.

12 Q what about his foster parents s1nce his mother had

13 rejected him out of the house and chose her husband?
14 A I believe we called one of the -- I believe it was

15 Mr -- I believe we called one of the witnesses. The name is

16 escap1ng me.
17 Q Roy cave?
18 A Excuse me?
19 Q Roy cave?

20 A No. That was his buddy in the band and went to the
21 military. The name is escaping right now, but I know we
22 called one of the witnesses. It may have been -- I don't
23 recall. It may have been Thomas Perchoux. I don't -- I don't
24 remember.

25 Q were you able to call lay witnesses that were able

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 to speak to Mr. Hilton having been jostled 1n foster care and

2 the rejection of him by his mom?

3 A we just called the one witness who he stayed with 1n

4 Miami.

5 Q And now that we mention Mr. cave, were you aware

6 did you know to ask Mr. cave about Mr. Hilton having been
7 sexually molested by the attorney that was appointed to

8 represent him?

9 A That never came out to me or 1n the memos provided

10 to me by Betty, but that information that he was sexually
11 molested at the age of 16 by the attorney representing him 1n

12 Miami did come out through the experts. I did not request a
13 separate nonstatutory mitigator that Mr. Hilton was sexually
14 abused as a child because there was some qualifiers to this 1n

15 my judgment, rightly or wrongly, that even though he was a

16 youth at the time, that was something where it was an exchange
17 of -- for marijuana. And there was subsequent 1ssues about --
18 with the use of drugs and other homosexual activity.
19 so I may have I may have been deficient for not

20 presenting that as a -- as a nonstatutory mitigator that he

21 was sexually abused as a child, but there was also nothing

22 there was nothing to corroborate it. But presumably,, if

23 there's something else, you'll present it.

24 Q were there lay witnesses that were called to testify

25 to the prior psychiatric episodes that Mr. Hilton had?

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 A when you say pr1or psychiatric episode, what are

2 you

3 Q There's a significant one that occurred 1n the

4 military.

5 A we did not call any witnesses but we did introduce

6 the military records, and I know that the expert witnesses

7 talked about the psychiatric issues, the times when he was

8 having auditory hallucinations, so that all was provided to

9 the experts. But, no, we did not call a -- I did not call a
10 separate witness with respect to the military, other than Roy
11 cave saying they went through the military together,

12 introducing the military records at the trial, and having the

13 expert witness talk about -- talk about that.
14 And I think that why that was also important,

15 because we also had the nonstatutory mitigator that Mr. Hilton

16 suffers from severe mental defect, so that was a good way to
17 show throughout his history that it was something that was
18 contrary to what the State was trying to say that he was just
19 a drug abuser, psychopath

20 Q what about --
21 A -- et cetera.

22 Q what about Gary's ex- -- Mr. Hilton's ex-girlfriends

23 or w1ves to speak to his psychiatric issues and/or his
24 addiction to drugs?
25 A which one are you referring to?

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1 Q we can start with Paulette Goldman.

2 A I thought that that was there was more bad than

3 good with Paulette Goodman [sic], because that was a time

4 period when they were abusing lots of drugs, and there was

5 information about having threesomes and homosexual activity,

6 and I didn't think that that would have been a good thing to
7 present.
8 Q well, the drugs -- the drug addiction 1ssue could be
9 used at a mitigator; correct?
10 A Correct. And I think, you know, we -- I think that
11 was something we talked about that was requested and that

12 Mr. Hilton abused substances. But that was -- but presumably,

13 you know, I made a decision not to call or present her
14 testimony at the evidentiary hearing.

15 Q And likewise, the sexual ambiguity would have maybe

16 been 1n harmony with having been abused sexually at a young
17 age?
18 A That would be something for the experts to explore.
19 That would be, you know

20 Q Or for the jury to hear?

21 A Correct.

22 Q Then I believe that Mr. Hilton's first girlfriend or

23 wife after coming back from Germany, she had passed away from
24 cancer?

25 A ursula, I think was her name.

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1 Q ursula, yes. Any witnesses that you spoke to or

2 called that were able to speak to Mr. Hilton's relationship

3 with her?
4 A I recall that there were -- that there was

5 investigation done with that, but as I've said, unless I, you

6 know, see the memos with whatever notations I had on them, I

7 can't say -- I can't say who I spoke to or did not speak to.

8 But as I said before, I mean, presumably, if you were able to

9 procure their attendance, you'll put them on.

10 Q what about Mr. Hilton's relationship and marr1age to
11 Dina Baugh?

12 A I don't recall that there was much -- I don't recall

13 much about that.
14 Q Any witnesses called to speak to why the marr1age

15 only lasted six months or Mr. Hilton's behaviors during that

16 period of time?
17 A No.

18 Q Likewise, Mr. Hilton's relationship with the law

19 enforcement officer, sue Edwards?

20 A There was also I believe there was negative

21 information with respect to I think I wrote some notes

22 with respect to sue Edwards.

23 I -- there was some negative information with
24 respect -- that whether the allegation is true or false, 1s an
25 ex-wife who -- may have exposed himself to her son, so that

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1 would not have been helpful.

2 Q That actually came 1n, did it not, through

3 Dr. Prichard?

4 A That was objected to. And I think there may have

5 been another issue that was objected to, raised on direct

6 appeal, and the Florida Supreme court said it was okay because
7 my theory of the case was that generally Mr. Hilton was a

8 law -- you know, may have been odd but he was generally a law

9 abiding citizen, and it wasn't until 2005 when he went

10 downhill after he met Dr. Delcher and basically, you know,
11 went downhill.

12 Q what witnesses were called pr1or to Mr. Hilton

13 having come 1n contact with Dr. Delcher to speak to or testify
14 about Mr. Hilton's behaviors in public places like parks or

15 hiking trails or things of that nature?

16 A I believe we called Scott Gillespie. He was a
17 willing and able witness. we also called Deputy Nelson who
18 came. I mean, I think -- I think what I tried to do was, you
19 know, between -- between February of 2006 and November of
20 2017, we called in officer King, scott Gillespie, Deputy

21 Nelson, and a Mary Pat King.

22 And while there were a number of other witnesses
23 that saw him on the trail acting oddly or walking, talking to
24 his dog, or saying various things about, do you have a permit,
25 or walking with a cane or mumbling to himself, those, as we

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1 may have discussed earlier, were witnesses that, you know, I

2 contacted, that when it really came time to, do you want to

3 testify at the trial what your observations were, were

4 unwilling to testify and --

5 Q Those witnesses all made observations of Mr. Hilton

6 evidencing these behaviors prior to him starting to take

7 medications prescribed by Dr. Delcher?

8 A It was around the time.

9 Q what I'm interested in is, what witnesses were

10 available to call that could have testified to Mr. Hilton's
11 bizarre behaviors pr1or to taking medicine?
12 A I remember -- I was looking -- I'm looking at your
13 list Mr. Priester. I remember his wife had recently -- if
14 I recall correctly, may have recently passed away. And there

15 was a and there were other witnesses. I recall Stephanie

16 Dugan and Brenda champagne, but I was unable to -- whether I
17 spoke to them, I was unable to procure their attendance.
18 And I think that-- I think, if I recall, both
19 Stephanie Dugan and Brenda champagne would have testified to
20 similar testimony that Sandy carr had testified to, to try to
21 normalize Mr. Hilton; I mean, that he had relationships with
22 women, the theory of the case that he didn't change until
23 after the Ritalin came about, that whether he be odd and
24 eccentric, he carried on in society and had relationships with
25 women that got along with him.

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1 Q who testified about him collecting -- his

2 relationships with animals?
3 A I think it -- I think the -- particularly the

4 information that was provided to Dr. Strauss, I think that

5 came out pretty clear through Dr. Strauss' testimony that
6 Mr. Hilton only really had a love of his dogs, and I think
7 that was something that I even tried to emphasize to the jury
8 1n closing argument.
9 And I remember I do recall there was a -- I think
10 the people that did testify -- he was always with his dog. I
11 mean, his dog was always with him. And so that information

12 was provided to the experts, and I do recall Dr. Strauss

13 testifying and that became kind of a secondary theme that
14 Q Secondary theme, how do you mean?

15 A A secondary theme as to I mean, it was not

16 something we were going to put on as a nonstatutory mitigator,
17 you know, his love of dogs, but it did establish what a lot of
18 the experts were talking about, I mean, him being, you know
19 what we talked about, about being -- you know, being alone, a
20 loner, and not being able to carry on, you know, going through
21 a lot of these relationships and, you know, how he grew up
22 with, you know, how -- with maternal deprivation, lack of
23 relationship with the biological father, bad relationship with
24 the step-father, and that somehow the dogs, Ranger and Dandy,
25 were his -- you know, were his true love.

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1 Q And the experts were the ones who provided that

2 information versus laypeople making those observations?

3 A Correct.

4 Q And likewise, Mr. Hilton's obsession with collecting

5 and dating dog fur from his respective pets, that information
6 came from experts as compared to individuals?
7 A Correct. And I did and I did go -- I recall when
8 we went to FDLE and examined all the evidence, the bags of the
9 dog hair and the tennis balls. And I do recall there was a
10 conversation in the conference room at the public defender's
11 office about introducing that to the jury.

12 And, quite frankly, it just seemed looking at it,

13 it just seemed kind of creepy. So the decision was made not
14 to separately introduce tennis balls and dog hair, but that

15 information was all provided to the experts.

16 Q Those behaviors preexisted Mr. Hilton com1ng 1n
17 contact with Dr. Delcher though; correct?
18 A Yeah. And I think -- yeah. And I think that was
19 pretty you know, all the witnesses that Ms. Fuentes had

20 interviewed, that was pretty clear that whoever he came in

21 contact with, they would always say he was with his dog,

22 whether the dogs were very obedient. Or you could tell, I

23 think, even the witness who -- Ms. Lee from the laundry even

24 testified he'd always come there with his dog and --

25 Q So thematically, if I'm understanding, your

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1 presentation to the jury was that Mr. Hilton did not evidence
2 psychological impairments, dysfunctionality. He was a law

3 abiding citizen for the most part up until Dr. Delcher entered

4 the picture?
5 A Right. But it was -- there was also evidence that
6 there -- you know, the fact that he was discharged from the
7 Army one time honorably, another time, under honorable
8 conditions, but there was the evidence of him having
9 psychiatric 1ssues with the auditory hallucinations.
10 And, you know, even as a child or a teenager,
11 although we did not get the records from Jackson Memorial, it

12 was clear that he was in psychiatric care at the hospital

13 under this Dr. Emerson's watch who we were unable -- who is
14 deceased so -- but I think that was something I was trying to

15 establish as well as best I could, that Mr. Hilton suffered

16 from severe mental defects in addition to what you just
17 outlined thematically that, you know, he was odd, he was
18 eccentric, but for the most part, law abiding. And I think
19 that's -- we also discussed that's why Florida supreme court
20 said it was okay for what Dr. Prichard testified to, which I
21 objected to.
22 Q But essentially, thematically, the presentation was
23 that Mr. Hilton wasn't broken until Dr. Delcher was
24 inappropriately prescribing medication?
25 A Correct. And that was what all the experts

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1 testified. That was the gasoline on the fire.

2 Q Had you demonstrated that Mr. Hilton would you

3 agree that there was evidence that Mr. Hilton was -- and I'm

4 us1ng the layperson term "broken." There was evidence that

5 Mr. Hilton was broken in several different ways from an early

6 age?
7 A Yeah.

8 Q That evidence, though, you were reliant upon the

9 experts to convey that versus the people, the laypersons, who

10 observed it?
11 A well, I think that-- well, cleo Debag, I mean,

12 testified to his life, and I think that Roy cave and sandy
13 carr testified to those years in high school, and Maria
14 Castelli testified as well, which we already discussed about

15 his relationship with cleo. I mean, it was pretty -- you

16 know, going from you know, being in foster care and mov1ng
17 around a lot, being from school to school, you know, I think
18 that was fairly established.
19 Q All right. I have three other compartments to deal
20 with and then I'll let Ms. Cappleman inquire.
21 How many times did you meet with Mr. Hilton?

22 A I would have to look at the jail logs to make that

23 determination. I did see two memos. That's how I knew the
24 first time I saw him was in February of 2009. I know-- I
25 don't recall how many times I saw him. I didn't always

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1 dictate memos. I mean, sometimes I remember go1ng out there

2 just as a -- I remember I was going to Israel for two weeks

3 and I let him know, when I get back, I'll talk to you. You

4 know, we talked -- I mean, this is outside but we -- you know,

5 we would talk about the two-state solution and, you know -- so

6 we had a good relationship.

7 Q The defense team objective and Mr. Hilton's

8 objective was to get a life sentence; agreed?

9 A Correct.
10 Q Did Mr. Hilton demand of you and of the defense
11 team, I need a trial and I want you to deny everything, demand

12 strict proof, scorched earth guilt phase-type tactic?

13 A It was clear to me that, as even commented in one of
14 his interviews, that he wasn't giving up anything for free.

15 so it was clear that we were go1ng to make them prove it.

16 Q That segues to my next question: what discussions,
17 if any, from a strategic perspective did you have with
18 Mr. Hilton or did you hear other lawyers have with Mr. Hilton
19 in terms of how the presentation should go in guilt phase in
20 conjunction with penalty phase?
21 A I don't recall going to the jail with, you know,
22 just myself and Ms. Suber and going through it in that
23 particular way, although

24 Q was Mr. Hilton reliant

25 THE COURT: wait a minute. Let him -- let him --

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1 MR. MORRIS: I apologize, Judge.

2 THE COURT: he's concluded.

3 THE WITNESS: although Mr. Hilton, 1n my op1n1on,

4 was aware of what the strategy was in the guilt phase, to

5 make the State prove the case, adversarially test the

6 evidence.
7 And with respect to what I was doing -- it was also

8 my practice to, every time I had an expert come to meet

9 with Mr. Hilton, I would also meet the expert at the

10 jail, you know, introduce Mr. Hilton to the experts. so
11 all along he knew what experts we were calling. And I

12 would keep him abreast of what lay witnesses -- I know he

13 was happy to know that two of the high school people,
14 Sandy carr and, you know, Roy cave, were coming to

15 testify on his behalf.

16 so I did the best I could to keep him abreast of
17 everything, but as we discussed earlier, you know, there
18 was a, quote/unquote, dysfunction among the team prior
19 to -- you know, within the 60 days prior to trial.

20 BY MR. MORRIS:
21 Q That dysfunction, 1n your op1n1on, did the guilt

22 phase and the penalty phase complement one another?

23 A I think it worked the way it could. I did -- I did

24 not do anything in the guilt phase, which I think is, you

25 know-- is, you know, important in these type of --why you

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1 would have two lawyers in this case, one conducting the guilt
2 phase and one conducting the penalty phase. You don't want to
3 have a guilt phase lawyer say, oh, he's -- you know, he's

4 not guilty of -- okay, then come up in penalty phase, I didn't

5 really mean that but believe me now. so that's why you have
6 two separate lawyers.
7 Q But that's essentially what happened, isn't it? I
8 know we had two separate lawyers, but that's essentially what
9 happened?
10 A when you say essentially what happened, what are
11 you

12 Q Denied everything, challenged the evidence, acted as

13 if 1nnocence was the case, and then --
14 A well, I would say more not guilty than Mr. Hilton 1s

15 innocent. I mean, I think that's always a distinction that we

16 make as lawyers, at least.
17 Q And so you felt that segued into -- that the guilt
18 phase segued into your penalty phase?
19 A well, I recall -- I mean, there were times -- I

20 mean, it would have been n1ce to get some mitigation evidence

21 1n during the guilt phase however you can backdoor it.

22 Q why didn't that happen?

23 A There wasn't a way to do it.

24 Q were there any

25 A I mean, diminished -- we couldn't go with diminished

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1 capacity obviously. They did see, I believe, one interview

2 with -- was introduced. I mean, I remember exploring an

3 insanity defense, an intoxication-induced sanity defense,

4 which would have been admissible but that was not really
5 viable.
6 But this was not the type of case that we were able
7 to get anything -- backdoor any, you know, mental health
8 information through the guilt phase. It was a pure
9 adversarial testing of the State's evidence and make them
10 prove the case. And then I came up and did the penalty phase.
11 Q The adversarial testing of the State's evidence

12 contemplated -- before I phrase that question, were you

13 present during the entirety of the guilt phase?
14 A Yes.

15 Q The adversarial testing of the State's evidence

16 was based on your observation, was it object to everything
17 that the State 1s attempting to introduce as evidence?
18 A Yes, 1n addition to whatever cross-examination.
19 Q Is it your procedure, your policy, your experience

20 that objecting to every item of evidence helps build rapport

21 with the jury?

22 A well, I don't think juries necessarily like that,

23 but I remember there were a lot of instances where the State

24 was having difficulties with predicates and, you know, we

25 weren't just going to let them-- you know, I say we-- well,

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1 yeah, we. we're not go1ng to just let them introduce it.
2 So I remember there were a number of off-the-record

3 discussions about the State's problems getting into evidence

4 because of lack of a predicate, because it was unbelievable

5 amount of evidence that was introduced into evidence.

6 Q was Ms. Suber's cross-examination effective as it

7 related to the witnesses?

8 A My opinion with respect -- I mean, the biggest

9 one of the biggest issues in the case was the DNA expert and
10 the DNA in the case, and I thought that she could have done a
11 better -- you know, this 1s my own op1n1on. I thought that

12 she could have done a better job, because a lot of the

13 questions she was asking were open-ended, and one of the
14 things, as you know, on cross-examination is not to ask

15 questions you don't know the answer to.

16 Q In fact, some of her questions actually bolstered or
17 highlighted evidence that was negative?
18 A I did not read the DNA testimony before I came here,
19 but I remember sitting at the table and Paula and I, you

20 know -- I mean, we were kind of limited in what we could do

21 other than, you know, we could pass a few notes. But, you

22 know, I think we both would have done things differently, but

23 she was the lead attorney on the guilt phase. But I thought

24 that she could have done a better job on the cross-examination

25 of DNA expert because that was the biggest part of the case,

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1 that and his statements.

2 Q Did you participate 1n JUry selection?

3 A I did the penalty phase questioning voir dire.

4 Other than passing notes, you know, Ines was the one calling

5 the preremptories and the cause challenges. I thought -- I

6 thought she could have done -- I thought she could have done a
7 better job with that. I mean, like I said, we were limited to

8 other than passing notes. we didn't have two or three people

9 doing the challenges in front of the court.

10 You know, I think a big issue, in my op1n1on, 1n the
11 case was when we did the pretrial publicity vo1r dire about

12 JUry knowledge about any other cases, whether it be

13 particularly the Georgia case or the North carolina case. I
14 mean, in my opinion, the court made a distinction without a

15 difference allowing jurors that heard about what happened 1n

16 Georgia or maybe North carolina to be on the case, but if they
17 didn't know the outcome, it was okay to sit on the case. And
18 most of them, quite frankly, if I recall, did.
19 And although the court granted a number of
20 peremptory challenges -- and I don't have the jury selection
21 or notes or whatever in front of me to point out which
22 particular juror -- I thought a better job could have been
23 done in the requesting cause challenges or additional strikes.
24 And I guess that would be something -- you would
25 argue that that would be something that was -- but it wasn't

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1 raised on direct appeal so maybe it was not properly

2 preserved. But that would be an issue for yourself and

3 perhaps an appellate habeas; I don't know.

4 Q The preservation issue, that would have been the

5 responsibility of Ms. Suber?

6 A correct. Like I said, Ms. saunders and I were

7 limited to -- I mean, not limited, but we were there passing

8 notes as best you could and, you know, whispering or, you

9 know-- you know how that goes when you're in trial. But she
10 was solely responsible for the strikes.
11 Q was her questioning of the prospective JUrors on

12 target, on task, or were there concerns about the adequacy of

13 it?
14 A I didn't think she was on her game, so to speak.

15 That's my op1n1on. I've worked with Ms. Suber in the other

16 case and, you know, like I said, we had -- there was a
17 noticeable difference what went on in this case versus my
18 prev1ous exper1ence.
19 Q Did you participate 1n the entirety of JUry
20 selection or only death qualification portion?
21 A I was present for everything, but we split it.
22 Q That was my question.

23 A Yeah, I was present for everything.

24 Q when you say that Ms. Suber wasn't on her game --
25 and I understand you say1ng I've seen her before and this was

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1 not the same as I had seen previously. was anything done

2 about that or anything changed?

3 A we were we were already at JUry selection. I

4 mean, I was aware of the fact that she was sleep deprived, and
5 I don't -- and it was very -- people that have worked with

6 Ms. Suber know she's very meticulous, and most of her JUry
7 selection, you know-- methodical, and I didn't think that was
8 the case here. I thought it was very perfunctory.
9 And, I mean, the only thing she -- I mean, I knew
10 she was sleep deprived so I don't know if she -- I don't know
11 how many days or nights she was -- I don't know any -- I don't

12 have any personal information other than I knew she was sleep
13 deprived.
14 Q was the performance 1n the rest of the guilt phase,

15 did it evidence the same type of behaviors?

16 A I mean, there were portions where she did a good
17 job, and I thought she did a decent closing argument. You
18 know, everyone did the best that they could. You know, the
19 thing that stood out to me the most were the JUry selection
20 and the DNA expert.
21 Q when you say "did the best that they could," is it a
22 fair characterization to say the best that they could given
23 the 60-day run-up and division of the case?
24 A Yeah. I mean, that definitely had an effect, I
25 mean, on everybody. It was --you know, it's not-- I mean,

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1 it was not -- it was not an easy situation. This was a

2 difficult case in and of itself. You add that on top of it,

3 it made it difficult for everybody.

4 Q Finally, lastly, was there communication, adequate

5 communication, between yourself and Ms. Suber in preparing for

6 the trial and the presentation of the trial to the jury?

7 A During the last 60 days, it was more it was less.

8 There was a lot less communication because that's when we, you

9 know -- you know, especially from December on, we kind of --

10 you know, you're doing guilt, I'm doing penalty. I stopped

11 rev1ew1ng the you know, I mean, I was reviewing everything

12 that came 1n. And it was, you know, it was like State's, you
13 know, discovery number 25, 28, 32.
14 But there came a point in time 1n those last 60

15 days, let's say, where I stopped, you know, go1ng to

16 depositions, or reviewing evidence, or reviewing, you know,
17 additional discovery, although I got copies of everything.
18 You know, I got it but I didn't go through it meticulously.
19 And I do recall that being an issue in the case was

20 when it was sort of -- it was a surprise at trial that should

21 have been known beforehand by Ms. Suber since she was doing

22 the guilt phase of the so-called snitch in the jail. And, you

23 know, I was not I was already not reading discovery at the

24 time. That would have been her responsibility, but that was,

25 you know -- that was a problem.

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1 MR. MORRIS: Tender the witness, Judge.

2 THE COURT: why don't we take about a five-minute

3 break, if we could take a quick break, and let's start

4 with cross.

5 (A recess 1n the proceeding.)

6 THE COURT: You may proceed, Ms. Cappleman.

7 MS. (APPLEMAN: May it please the Court.
8 CROSS EXAMINATION
9 BY MS. (APPLEMAN:

10 Q Mr. Friedman, how long were you on Mr. Hilton's case

11 before it went to trial?

12 A since February 2009.

13 Q so two years?
14 A Correct.

15 Q And 1n that two years, was that adequate time for

16 you to ultimately prepare your portion of the presentation of
17 his case?
18 A we could have all used an extra 90 days.
19 Q of course.

20 A we all could.
21 Q But were you ready?

22 A As ready as I could be under the circumstances.

23 Q were you given all the resources you needed to be

24 prepared?

25 A Yes. whatever I asked Ms. Daniels, she

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 accommodated.
2 Q And you were asked a little bit regarding strategy

3 1n reference to the guilt phase, and it was -- it's been

4 referred to as scorched earth or challenge everything, test

5 the State's case. All those type of things have been used to
6 refer to that strategy. I think you said you were present
7 when that strategy was discussed with Mr. Hilton; is that
8 correct?

9 A I did go out to the jail with Ines on more than one

10 occas1on.
11 Q All right. And -- okay. so I guess that doesn't

12 really answer the question. was the strategy to challenge and

13 test the State's case discussed at those meetings?
14 A That was -- it was never an option, in the absence

15 of a life sentence, not to do that, so it was always a g1ven.

16 Q okay. so it wasn't called a strategy, but the idea
17 that we're going to test everything and how we're going to do
18 it in reference to particular evidence was discussed; is that
19 accurate?
20 A That would be -- that would be an accurate
21 statement. But as time went by, you strategize how you're
22 going to go about doing that.

23 Q sure.

24 A As the evidence becomes available.

25 Q And what -- were those types of discussions that

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 we're go1ng to challenge and test everything, were those

2 discussions conducted throughout the pendency of the case, or

3 were those discussions that were only had toward the inception

4 of the case?

5 A It coincided with the goal of getting a life

6 sentence, so yes.
7 Q so yes, what?

8 A Yes, that was -- that was discussed throughout --

9 Q All right.
10 A --that that was-- that would have been the goal.
11 Q And throughout the discussions that you --

12 throughout the case, the discussions that you were pr1vy to

13 that included Mr. Hilton, did he appear to be in agreement at
14 all times with that strategy?

15 A Yes.
16 Q In reference to the strategy that you employed for
17 the guilt phase, specifically in reference to the idea of
18 introducing Ritalin as the breaking point or the gasoline on
19 the fire I think is how you referred to it --
20 THE COURT: Are you talking about the guilt phase or
21 penalty phase?

22 MS. (APPLEMAN: I'm sorry, did I say guilt? I meant

23 penalty. Thank you.

24 BY MS. (APPLEMAN:

25 Q was the idea that, in the penalty phase, we're go1ng

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1 to introduce the mis-prescription of Ritalin as the breaking

2 point something that was discussed with Mr. Hilton?

3 A He knew that.

4 Q How did he know?

5 A Through the -- through my meetings with him with the
6 experts, that that was going to be the theme of the case. And
7 he was fully cooperative with all the experts. I know I've
8 had -- it's not answering the question but I've had many
9 instances where that's not the case.
10 Q okay. And in reference to the idea that Ritalin
11 could have or should have been introduced in the guilt phase

12 of the trial, were you present for any meetings where that
13 idea or concept was discussed?
14 A No. That was something that would have been

15 discussed amongst the attorneys

16 Q Okay. But you're
17 A -- how but not something that was discussed with
18 Mr. Hilton, per se, as I stated earlier. I know that I was
19 researching the idea of doing an intoxication-induced insanity
20 defense and that would have included the Ritalin, but that was
21 not -- after conferring with experts and lawyers and the case
22 law, that was not something I could do in the guilt phase.
23 Q okay. I jumped around on you a little bit. I'm now
24 referring to a meeting that would have occurred at the office
25 amongst lawyers, including Ms. Daniels, in which this idea of

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 introducing Ritalin into the guilt phase would have been

2 discussed. were you present for that?

3 A I believe -- yeah. Yes. And that's when we

4 discussed this, I think what I term what I discuss as

5 intoxication-induced insanity defense. But it was clear, you
6 know, it was not -- that this was not the -- I mean, the
7 problem with the case was that he knew what he was doing, you
8 know. That was the problem with, you know, even when we --
9 I'm deviating but when we were establishing the statutory
10 mitigation, you know, I mean, he was --

11 Q But you recall being present at the meeting where

12 that idea was discussed?

13 A Yes.
14 Q All right. And were you the person primarily

15 charged with researching that idea or the feasibility of that

16 idea?
17 A Yes, to my knowledge.
18 Q All right. And your recommendation was to reject
19 that idea, and that was ultimately accepted by everyone?

20 A Yes. And there was no other way -- and as we know,

21 diminished capacity is not admissible in Florida, and this

22 because he knew what he was doing, made this an impossible

23 defense to posit. I mean, we looked at that and also looked
24 at an insanity defense, but this would have been the best way
25 to go because of the Ritalin, an intoxication-induced insanity

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 defense, which is admissible 1n Florida.

2 Q okay. All right. I'm JUmplng back to the penalty

3 phase now. why push the idea of Ritalin as a turning point as

4 opposed to painting him as having been completely broken or a

5 monster, however you want to put it, all the way back from
6 birth or some early childhood event?
7 A well, as I stated earlier, this was a s1x
8 aggravated -- I think it was six aggravating factors 1n this
9 case, which is a lot. And I felt that it was important -- you
10 know, more important to firmly establish the two non- -- the
11 two statutory mental health mitigators.

12 You know, as I said earlier, when you go through

13 Florida Supreme court opinions, those are the weightiest, so I
14 went more so with that. And plus, you know, we only had so

15 many witnesses to testify to what you're referring to, but

16 what we could, I tried -- we tried to present or I tried to
17 present.
18 And in that regard, I mean, I came up with, you
19 know, ten nonstatutory mitigators including, you know,
20 being grew up 1n an emotionally abusive and neglective
21 home; he abused substances; deprived of a relationship with
22 his biological father; served his country through military
23 service; he suffered maternal deprivation; lack of bonding
24 between the mother and father; moved from his home into foster
25 care, grew up 1n a poor family; traumatic brain injury; severe

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1 mental defect. So that was all tried to present to the jury

2 as nonstatutory mitigation, but I still -- my own judgment,

3 rightly or wrongly, was to focus also or heavily on those

4 statutory mitigators.
5 Q Am I correct 1n stating that your thoughts were --
6 or what you wanted to convey to the jurors was while he had
7 issues and problems, including mental health problems, leading
8 up to the Ritalin, the Ritalin is really what turned him from
9 a somewhat sometimes productive member of the community or
10 someone who has some redeeming qualities to somebody who was
11 capable of murder?

12 A Yes.
13 Q Did you have any trouble, during the time that you
14 met with Mr. Hilton at the jail, communicating with him?

15 A No.

16 Q Did he appear to understand everything as you were

17 explaining it?
18 A Yes.
19 Q what about in the courtroom? Did you have any
20 difficulty communicating with him in the courtroom?
21 A He was always highly medicated in the courtroom and
22 that was pretty obvious. The only difficult time was when we
23 had the incident with Ms. Bohanan.
24 Q okay. And I'll get to that a little bit later. But
25 1n general, was he able to assist in his defense and maintain

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1 proper courtroom demeanor?

2 A He maintained court demeanor. There was no

3 problems. You know, he was medicated. He was he was an

4 easy client, quite frankly. I mean, he let us do what we

5 needed to do, and I thought that he liked and trusted us so

6 whatever -- you know.

7 Q Did you ever personally observe his behavior when he

8 was not medicated?

9 A He was always medicated on something in the jail. I
10 mean, we you know, I would get the jail records every 90
11 days or so, so he was always medicated, as are most inmates 1n

12 the jails and prisons.

13 Q Do you have an op1n1on as to whether medication
14 would be required or -- do you have an op1n1on as to whether

15 or not medication would be required for Mr. Hilton to assist

16 1n his own defense and maintain proper courtroom demeanor?
17 A I'm not a -- I'm not a, you know, doctor so I
18 don't meet him -- you know, I don't meet him in those

19 circumstances at the jail when they're doing, you know I

20 can only go by what I see in the documents from the jail
21 but
22 Q well, what about that first meeting 1n Georgia? Did
23 you attend that?
24 A Excuse me?
25 Q The first meeting that occurred 1n Georgia and

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1 Ms. Suber was present. I'm not sure if you were

2 A No, I was not. I only -- I think that was before I

3 got on the case. In 2009 when -- February 2009 when I got on

4 the case, he was already in the Leon county Jail, so I had no

5 interaction in Georgia.

6 Q All right. You were asked about whether there was a

7 conflict in the strategies between guilt and penalty, or

8 whether they were harmonious or not. Did you feel that

9 Ms. Suber's strategy in the guilt phase killed your mitigation

10 or discredited your strategy in the penalty phase?

11 A No.

12 Q Do you think that it's necessary to concede guilt 1n

13 order to have a credible presentation of mitigation?
14 A No.
15 Q Other than Betty Fuentes, did anyone else express
16 disagreement with your decision not to call Dr. Delcher or any
17 other witness that you elected not to call?
18 A No. Basically I didn't take the decision to not
19 call Dr. Delcher or Mr. Tabor lightly. I spoke at length with
20 Paula saunders about it, at length with Bill McLain, the
21 capital appellate lawyer 1n the office about it. And that
22 made me feel comfortable with my decision.
23 Q was Ms. Suber aware of your plan not to call
24 Dr. Delcher?
25 A I don't think I specifically, you know, went to her

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1 office and told her, because I think at that time it was so

2 separated and dysfunctional and high pressure because of

3 actually going to trial that I was -- and that's after

4 Ms. Daniels, you know, gave me the license to just make my own

5 decisions. so I just made my own decisions with other

6 consultation.
7 Q I understand. was Ms. Suber aware of the incident

8 with Ms. Fuentes getting upset and ultimately quitting?

9 A I don't have personal knowledge, but I know that she

10 was good friend with Ms. Fuentes so -- or through Ms. Bohanan,
11 you know, she may -- must have known or found out. It became

12 pretty, you know -- pretty obvious in the office.

13 Q All right. Do you agree that it's important 1n the
14 penalty phase to humanize your client?

15 A Yes.
16 Q Do you agree that lay witnesses can be important 1n
17 achieving this?
18 A Yes.
19 Q Do you have any particular discomfort or fear about
20 exam1n1ng lay witnesses --
21 A No.

22 Q -- as opposed to experts?

23 A No.

24 Q would you put on a witness for the purpose of either

25 nodding at your client, doing some nonverbal communication

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1 with your client in front of the jury, or to weep for your

2 client on the stand in front of the jury?

3 A Or what?

4 Q weeping, cry1ng for your client. Do you understand

5 what I'm getting at, what kind of witness?

6 A I mean yes and no. I mean, yes, no, I know what

7 you're getting at. You know, a lot of times, you know, you

8 don't know what the witness is going to do. But, I mean, for

9 the specific purpose, oh, I'm going to call this witness

10 because I know she's going to shed tears and somehow that's
11 going to be sympathetic, I don't think that's necessarily

12 something that I would do.

13 Q would you coach a witness to do those things?
14 A No.

15 Q Do you agree that it's important to demonstrate the

16 client's childhood for the jury?
17 A Yes. You want to show the client's humanity.
18 Q And in this case was it important to develop the
19 facts surrounding Mr. Hilton having been raised in a
20 neglectful home?
21 A Yes.
22 Q Abandoned by his father?

23 A Yes.
24 Q Exposed to violence and/or abuse?
25 A Yes.

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1 Q His military experience?

2 A Yes.

3 Q And did you feel that you accomplished all these

4 things through the witnesses that you did call?

5 A Yes.

6 Q How many lay witnesses did you either call live or

7 put on via video testimony?

8 A I believe it was 11.

9 Q And four experts?

10 A Correct.
11 Q okay. so 15 total?
12 A Yes.
13 Q All right. Is there some mag1c number of witnesses
14 that could be or should be called 1n a case like this?
15 A I don't think there's a magic number, but it's

16 always helpful to flesh things out as much as you can.

17 Q From your exper1ence in capital appeals, is 15
18 witnesses a particularly low number of witnesses to call 1n a
19 case like this?
20 A I would think it's a good number.
21 Q I want to ask you a little bit about the mitigation
22 that was the work that was done in this case. Did
23 Ms. Fuentes do a thorough mitigation investigation, in your
24 opinion?
25 A Yes, other than -- other than not completing the

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1 PowerPoint.
2 Q All right. And she did find and conduct preliminary

3 interviews of lay witnesses?

4 A she did an exhaustive investigation of witnesses.

5 Q would it be customary 1n your experience for a

6 lawyer to accompany Ms. Fuentes to all of those field

7 interviews?

8 A At times.
9 Q If you did not follow up with her, how would you, as
10 the lawyer if you did not go with her to the interview, how
11 would you, as the lawyer, learn what was said in the

12 interview?
13 A I would read her memo, which she always did, and I
14 would contact witnesses on my own.

15 Q okay. were all of Ms. Fuentes' witnesses that were

16 on that -- it's been called the matrix, Defense Exhibit IV,
17 were all of those witnesses helpful to your case?
18 A No.

19 Q were all of those witnesses willing to testify?

20 A No.

21 Q Did you bully or threaten any of the lay witnesses

22 1n this case to preclude them from testifying or treat them in
23 such a way that they didn't want to testify --
24 A No.

25 Q -- when you were done with them?

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1 In reference to State's Exhibit 2 -- 1s that still

2 on your table?

3 A Yes.

4 Q All right. You said that you don't recall having

5 seen that list before. Have you seen the names on the list?
6 Or are the names on the list familiar to you?
7 A Most, after the witness list was provided to me by
8 your by your office yesterday.
9 Q All right. And did you consider calling these folks
10 as witnesses in the trial?
11 A A number of them, I considered calling. But as I

12 indicated earlier, a lot of these lay witnesses were not so

13 willing to testify. They may have spoke to Betty or they may
14 have spoke to me on the phone, but a lot of them, when they,

15 you know, knew about what happened in Georgia, now what

16 happened here, while they may have been helpful, they were
17 unwilling to testify.
18 And as I indicated on direct, I did not subpoena
19 people that did not want to testify in this case. I thought
20 it would be harmful. And then presumably, the ones I didn't
21 call would be presented at the evidentiary hearing to see if
22 it made a difference.

23 Q All right. Am I correct that witnesses often are

24 likely to speak when someone comes and knocks on their door,
25 but then when they find out they're being asked to come to

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1 Tallahassee to testify 1n a death penalty case, their position

2 changes?

3 A That would be a fair statement.

4 Q Did you consider calling other lay witnesses, other

5 than the ones listed on State's Exhibit 2?

6 A There -- yeah. There were other -- there were other

7 witnesses around the time. Excuse me. I mean, Betty's list

8 was very -- it was exhaustive.

9 Q Are you referring to the matrix or the list, State's

10 Exhibit 2?
11 A Both. But I'm actually looking at No. 2 now. But

12 most of the witnesses, especially during 2007, were a lot of

13 witnesses that -- or similar witnesses that I spoke to, to
14 describe his behavior while camp1ng or hiking.

15 Q And those are the witnesses listed on page 2 of

16 State's Exhibit 2 under the heading "Adult During 2007"?
17 A Correct. And there were -- and I think there were
18 other witnesses in the time period, you know, before that as
19 well. I don't have, you know, off the top of my head, but
20 this 1s a pretty good list.
21 Q okay. And you talked a little bit about the fact
22 that you went through the list and made some decisions and
23 took notes along the way about why you were or were not
24 calling certain witnesses?
25 A Correct.

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1 Q And those notes, you have not been able to locate

2 those notes or they're not where they're supposed to be?

3 A I am no longer with the public defender's office

4 s1nce January 2014, so other than the time you got the court

5 order for us to go through the boxes in the PD's office which

6 we all saw was incomplete, I have not -- I have not seen my

7 notes.

8 Q okay. But you did make an attempt to locate them?

9 A Yes.
10 Q okay. Is it fair to say that the witnesses -- and
11 I'm specifically referring to the witnesses listed on State's

12 Exhibit 2 -- on this list that you did not call, you had some
13 reason for making that decision?
14 A Yes.

15 Q And I think you listed either unwillingness or you

16 felt they did more harm than good. Are there other reasons
17 that could explain
18 A Those would be the two ma1n -- the two ma1n reasons,
19 you know, other than I think a lot of what these witnesses had
20 to say, while maybe could have been more fleshed out by having
21 more witnesses, was all presented in the witnesses that I did
22 call. so a lot of this, I think, was cumulative, in my
23 op1n1on. But it would have been helpful to have these
24 witnesses testify if they were, you know, willing to come and
25 testify.

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1 Q okay. I know you can't recall the specific reasons

2 or reasoning associated with your decision on every witness on

3 this list, but I would like to go through and the ones that

4 you do have an independent recollection of, I would like to

5 know what that 1s.

6 Now, go1ng through the list, the first one, two,

7 three five witnesses were called or presented at trial.

8 would you agree with that?

9 A Yes.
10 Q All right. And the fifth one, Sandy Herman, that's
11 the same as Sandy carr; correct?

12 A uh-huh.
13 Q okay. Is that a yes?
14 A Yes.

15 Q All right. And the sixth witness, Beverly Hilton,

16 it indicates on this sheet that she's a hostile witness but is
17 the defendant's sister. Do you recall anything specifically
18 1n reference to why you didn't call her?
19 A I don't recall speaking to her, but I remember
20 see1ng something to the effect of being hostile. so I rely
21 you know, I relied on Betty's information, so if she had down
22 "dangerous" or "hostile" or -- I would move on.

23 Q All right. And you did call the seventh listed

24 witness there, Maria Castelli; correct?

25 A Correct.

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1 Q Do you know why you did not call Juan Castelli?

2 A I really don't recall Juan Castelli.

3 Q okay. Do you know whether he was duplicative of

4 Maria Castelli or whether they were from the same household or

5 time period?
6 A I'm presum1ng Juan Castelli 1s her current husband.
7 It wasn't in the matrix that I looked at, but I don't recall
8 Mr. Castelli.

9 Q All right. Leroy Pruitt 1s the next witness listed

10 there. I know you did have some communication with him;
11 correct?

12 A I remember, I think, at the time he was living 1n

13 california, maybe. I did speak with him. He could have added
14 a little bit to, you know, Roy cave in respect to his time 1n

15 the military, but I think that was discussed with the Jury
16 through the records and through Roy cave. And it was an
17 unwillingness on his part to testify.
18 Q so Leroy Pruitt was somebody who was 1n the military
19 with Mr. Hilton?
20 A Correct.
21 Q was there anything significant that Mr. Pruitt could
22 add that you did not introduce through Roy cave or the
23 introduction of Mr. Hilton's military
24 A Other than the actual names of the divisions that
25 Mr. Hilton was in in the military. He was of high

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1 intelligence so they had him doing certain operations 1n the

2 military, but I think that all came out through the expert

3 witnesses, that he was of high intelligence and in these

4 certain groups --

5 Q Including the Davy Crockett --

6 A Correct. so -- but that would be -- he would flesh

7 that out a little bit.

8 Q okay. And then the next one on the list is Bob

9 Priester. This witness, according to the list, had

10 information about Mr. Hilton's uncle trying to molest him.
11 Did you do any further investigation into that?

12 A well, Hilton was 36 at the time so I wouldn't

13 exactly think -- I mean, I couldn't consider that being
14 molestation. And, you know, like I testified earlier, there

15 was some indication of some homosexual activity so --

16 Q And did you think
17 A Plus -- plus, I mean, I think -- or I recall his

18 wife had just died. I did speak with him. His wife had just
19 died so that was problematic as well, and I didn't think that

20 the fact that Mr. Hilton was 36

21 Q Mr. Hilton was 36 years of age at the time that the

22 sexual encounter with Mr. Priester occurred or was alleged to

23 have occurred?
24 A That-- well, it didn't occur with Mr. Priester. It
25 was some uncle but that

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1 Q I'm sorry, with the uncle.

2 A Based on whatever I read or whatever memos were

3 done, that's what I surmised, that he was 36 at the time so

4 Q so you didn't consider that to be molestation?

5 A No.

6 Q And did you feel -- did you have any concerns that
7 eliciting homosexual activity on the part of your client could
8 be negatively viewed by members of the jury?

9 A well, when it related to -- not in and of itself.

10 But when it related to the exchange for drugs, I mean, I
11 thought -- I mean, yeah. It came out that, you know, he -- we

12 tried to establish 1n one of the nonstatutory mitigators that

13 he abused substances, but I thought that that could be a
14 little more problematic, you know, exchanging drugs for sex,

15 presenting that.

16 Q And we -- I think you discussed on direct the next

17 two witnesses there, Ms. Dugan and Ms. champagne. we've
18 talked at length about why you didn't call Dr. Delcher. why
19 didn't you call the 14th witness listed on this list, John

20 Tabor?
21 A He was -- he hated Mr. Hilton. He was very hostile.

22 He was fighting the subpoena. And we had his interview with

23 GBI, with Georgia Bureau of Investigation. we had a
24 deposition. I believe that was sufficient information. He
25 was going to -- you know, he would do more harm than good. In

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1 fact, he was one of the people that identified Mr. Hilton 1n

2 the 1n the Georgia case with Ms. Emerson.

3 Q All right. And then the next few witnesses there, I

4 know you called the laundromat ladies, Jin Hee Lee; correct?

5 A Correct. well, I think she was a videotape.

6 Q Right. And then you had a specific reason for not

7 calling Dr. Bateman. could you tell us what that is? He's

8 the 26th

9 A He was -- he was unavailable.

10 Q Twenty-second.
11 A I think what he could testify to is how he cared for

12 his dogs, but I think that all -- that came out, Mr. Hilton's
13 love of his dogs. I mean, that was --
14 Q okay. So love of dogs generally would be considered

15 a positive attribute, but there was some pretty weird stuff

16 associated with the dogs. were you interested in getting that
17 1n or not?
18 A That also, with, you know, the rapid speech, and he
19 was always, you know, moving around, I mean, that -- you know,
20 I thought that would have been, you know, important
21 information, but he was unavailable to testify or and
22 that -- all that information was able to come out through
23 other sources.

24 Q okay. And then there's several other witnesses

25 listed there under "Adult prior to and 2005," Jenny Johnson,

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1 Shawn Stewart, Ned Dwight coleman, Pam Burnette, Ray Lung, and
2 Norm collins. Do you have any recollection of those specific

3 witnesses?

4 A Some of them, I do. But, I mean, they were -- it

5 was generally a mixed bag, I mean, quite frankly. They

6 could -- they could talk about -- a little bit about his
7 decline. But, you know, I remember Shawn Stewart was afraid
8 of him. I think Jenny Johnson, he would get into a lot of
9 arguments with. Pam Burnette thought she called the police on
10 him; also, Ray Lung. so a lot of these -- Norm collins had
11 some information on his odd behavior. But this was a mixed

12 bag that had negative things to say.

13 Q was there anything helpful to your case that you
14 could have elicited through any of these witnesses that you

15 were not able to otherwise elicit?

16 A I think Dr. Bateman would have been a good witness.
17 Q okay. But he was not available?
18 A Correct.
19 Q Okay. And Officer Kim lS listed there. I don't

20 know if you know the answer to this, but you called an officer
21 King which appears to be from the same time period. Is this a

22 typographical error, or were there two officers listed?

23 A You know, I was under the impression -- I mean, I'd

24 have to look at the record on appeal, but I was under the

25 impression it was an officer Kim because I do remember that

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1 tape and he was go1ng off to Afghanistan or something to that

2 effect, and I thought we had presented it. And I would have

3 to go through the record on appeal, but there also was an

4 officer -- there were two Kings, an officer King from Georgia

5 and then there was, I believe, a Pat King from Tallahassee

6 with the signal 20.
7 Q okay. one moment, please.
8 All right. so the video of the officer go1ng off to
9 Afghanistan that was introduced at trial was transcribed as an
10 officer King. Knowing that, do we think that officer Kim is
11 somebody else or same person?

12 A I would -- I would say it's the same person.

13 Q All right. Next on the list is a heading, "Adult
14 during 2007." what can you tell us about the witnesses listed

15 under that heading?

16 A These were the witnesses that, other than Scott
17 Gillespie, which is noted as "scott Gill , " they all caul d have
18 testified that when they ran into Mr. Hilton hiking, like,
19 around --you know, during 2007, that, you know, he may be
20 muttering, talking to a dog, walking with a stick. And even
21 though they may have spoke to Betty, when I call them up, Are
22 you willing to come testify here 1n Tallahassee in
23 Mr. Hilton's death penalty case, it was pretty much unwilling.
24 And I think that --

25 Q All right. But Scott Gillespie was willing?

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1 A He was the only -- yeah. He was -- he was willing

2 to come.

3 Q All right. And did --

4 A The rest of them were not.

5 Q Did you find Mr. Gillespie to be a credible witness

6 on this topic?
7 A I thought so. I mean, he ran into Mr. Hilton in
8 June of 2007. He seemed to be in a mental trance. He was
9 mumbling. And I think he -- he was a n1ce young man,
10 presented well 1n front of the jury.
11 Q And was that an issue, that he was acting oddly 1n

12 the forest and mumbling to himself and so forth, was that an

13 issue that was contested by the State?
14 A I don't recollect, but I don't think you did --

15 there was much cross-examination of Mr. Gillespie.

Q In fact, the State put on Ms. Pat King, the officer

24 there?
25 A well, they'd be similar to the witnesses previously

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1 discussed around 2007, but this would have been closer to the
2 time-- well, if it was-- one of them was around-- it was

3 around December 31. That was right before Meredith Emerson

4 incident occurred and would have been after this case -- this

5 case had occurred.

6 Q okay. And why didn't you call any of these

7 witnesses?
8 A I think for the same reason that, like I said, they
9 may be willing to speak, but when you say, are you willing to
10 testify, and then they put together Emerson's case in addition
11 to Ms. Dunlap's case, a lot of them became unwilling to

12 testify.
13 Q All right. And then jail staff is listed as some
14 testimony that could be given. Are you familiar with what

15 witnesses are referenced there?

16 A Those are -- those generally would be people that
17 would have observations of Mr. Hilton at the jail. I
18 routinely did -- you know, every 90 days or so would request,
19 you know, jail records because I would always provide those to
20 the expert witnesses, you know, see what medication, any DR,
21 disciplinary reports, or whatnot. I didn't -- you know, I

22 didn't see anything that would be worth calling or, you

23 know so I don't -- I don't have anything to add.

24 Q All right. And would Ms. Fuentes have provided

25 memos for each of the witnesses listed on State's Exhibit 2?

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1 A Presumably, yes.
2 Q And would all of those memos -- were all of those

3 memos, along with any other memos generated by Ms. Fuentes,

4 forwarded to your experts?

5 A I was the one who forwarded memos to the experts,
6 and I routinely -- I think I may have said it earlier. It was
7 my practice to do that on -- I mean, to put together the
8 package on my own, and that would include, you know, whatever,
9 you know, with respect to experts, school records, medical
10 records, psychiatric records, helpful witness memos.
11 And I know that Dr. Strauss thought highly of Betty

12 because we had used Dr. Strauss in the Coy Evans case, so he

13 had a relationship with -- you know, he thought she did very
14 good work. But, yes, we would provide memos to the experts.

15 Q was there any memo or information contained in a

16 memo that was important to your expert's testimony that you
17 did not provide to your expert?
18 A Not to my knowledge. But I didn't -- when we went

19 through the boxes in the public defender's office, there

20 was -- there were things m1ss1ng so I could not sit here and
21 say, you know, Dear Dr. Strauss, please find enclosed, you
22 know, witness memos from Ms. Fuentes without -- I didn't see

23 it.
24 Q Okay. But to your knowledge, during the trial --
25 course of the trial or afterwards, it has not come to your

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1 attention that there was some p1ece of information contained

2 in one of these memos or gleaned from one of these lay

3 witnesses that could have been helpful to your case that you
4 didn't provide to the expert?

5 A If I had them and I thought they were helpful, I

6 would send it to the expert.
7 Q All right. And was there any information from these
8 lay witnesses that you felt was important that you were not
9 able to elicit through either a lay witness or through one of
10 your expert witnesses at trial?
11 A I think all this information from these witnesses

12 were provided to the experts, came out in some form by the

13 other witnesses, and either, you know, would have been helpful
14 but also could be duplicitous. But there was not and there

15 was no new information on here that wasn't presented to

16 either. Prior to 2005, to humanize him, or after 2005, to
17 show the change in behavior that wasn't presented.
18 Q okay. And you were asked about three witnesses 1n
19 particular that were not on the list State's Exhibit 2,
20 Paulette Goldman, ursula I don't recall her last name
21 and sue Edwards, all wives or girlfriends of the defendant.
22 Am I correct, none of those three were on the short list that
23 Ms. Fuentes prepared as the most essential witnesses, in her
24 opinion?
25 A Yes. And they all were -- I mean, two of them were

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1 problematic in my op1n1on.
2 Q okay. That's my next question. You were aware of

3 all three of them and elected not to call them or were not
4 able to call them?

5 A Yeah. I elected not to call Paulette Goldman or

6 Goodman because of the activity that they were engaged in with

7 drugs and threesomes or whatever, homosexual activity; and sue

8 Ellen Edwards with respect to any child abuse investigation.

9 And I don't recall off the top of my head if ursula is still

10 with us, even back then. But I was aware that's who he
11 married after the military.

12 Q All right. In reference to Dr. Delcher, you said

13 that the way that you tackled the positive aspects of his
14 testimony was by, in part, introducing the Georgia Board of

15 Medical Examiners' findings. And that order actually was read

16 aloud to the jury; correct?
17 A Correct.
18 Q All right. And you also got a stipulation from the
19 State regarding the medications that Dr. Delcher prescribed
20 which were in Mr. Hilton's van at the time of his arrest?
21 A uh-huh. correct.
22 Q so the jury was aware of that?

23 A Correct.
24 Q All right. I want to ask you, was it a
25 consideration for you that, in order to make Dr. Delcher

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1 appear as the real bad guy here, that it would -- that would
2 be eas1er to accomplish if Dr. Delcher was an empty chair, as

3 it were; or it would be harder to point the finger at him if

4 he was able to take the stand and explain himself or defend

5 himself or appear redeemable in some way?

6 A well, I mean, like I said earlier, I just balanced

7 it and thought he was more bad than good. To turn it into --

8 I mean, even though that was -- you know, could be construed,

9 oh, the Ritalin made me do it and this is the quack who, you
10 know, prescribed it, I mean, I think that all very clearly,
11 you know, came out.

12 And, you know, as I said earlier, I -- you know, the

13 thing that worried me the most was the fact, in both the memo
14 and in my conversation with him, that he thought that

15 Mr. Hilton was dangerous. so by that by that potential of

16 com1ng out would, you know, obviate anything good.
17 Q okay. In reference to the PowerPoint, you testified
18 that the objections which caused you to ultimately not
19 introduce that PowerPoint were in reference to relevance?

20 A Correct.
21 Q And the questioning that followed seemed to indicate

22 that you could have called a lay witness to establish

23 relevance. was there any foundation or -- foundational or
24 authenticity type objection being made to the images in the
25 PowerPoint?

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1 A without reading the transcript, I don't recall off

2 the top of my head.

3 Q okay. well, would you expect calling a lay witness

4 to talk about a birth certificate, for example, would

5 establish relevance in some way?
6 A Probably not.
7 Q All right. In reference to the experts, we heard
8 from Ms. Suber a little bit about her thoughts regarding
9 calling Dr. McClaren. You chose to call Dr. Strauss instead
10 of Dr. McClaren; is that accurate?
11 A Yes.

12 Q And why did you do that?

13 A I've known Dr. McClaren for many years-- well, he's
14 no longer with us -- and I just never had -- I mean, Ms. Suber

15 would always -- or her practice was to hire Dr. Mcclaren 1n a

16 capital case confidently in the beginning. And I've had
17 experiences with Dr. McClaren with other clients of mine where
18 I just never trusted him, and he's done more hurt for clients
19 that I've had.
20 so I never -- even though I had a personal
21 relationship-- well, not personal, but professional
22 relationship with him, I never -- you know, in fact,
23 Dr. McClaren, you know, in the defense community was known as
24 Dr. Death and I just never trusted him.
25 And really the only thing he was able to testify to

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 with respect -- when we started getting into the statutory

2 mitigation was, you know, he would have been able to testify

3 he was under -- the capital felony was committed while he was

4 under -- suffering from extreme psychological or emotional

5 disturbance. And he would have been able to testify to the

6 second part that the -- that the defendant was -- his capacity
7 to not appreciate the criminality of his conduct, he knew it
8 but it was substantially -- conform his conduct and
9 requirements of law was substantially impaired.
10 But I just never felt good about Dr. McClaren based
11 on my professional relationships with him and I just didn't

12 trust him. so it was pretty hard for me, as an attorney, to

13 have a witness to have to deal with that I don't trust. And I
14 had -- I've worked with Dr. Strauss before and even -- and was

15 successful with Dr. Strauss, so I decided to go with

16 Dr. Strauss. But particularly in this case, Dr. Strauss, 1n
17 addition to being an M.D. and a psychiatrist, he has got a
18 background in psychopharmacology which I thought was important
19 1n this case.

20 Q All right. And were you able to elicit all of the

21 things that you could have elicited from Dr. McClaren through
22 Dr. Strauss?

23 A Absolutely.
24 Q I want to ask you about Dr. wu bringing up the
25 Deadly Run movie. How did that come to pass?

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 Let's first establish, the Deadly Run mov1e was the

2 subject of one of Ms. Suber's motion in limine; correct?

3 A Yes.
4 Q And she was successful 1n keeping that out?

5 A Correct.

6 Q All right. How 1s it that that ended up com1ng out

7 through your examination of Dr. wu?

8 A well, I was able to get a portion of the transcript

9 from the federal defender's office, and it came out
10 nonresponsive to my courtroom question.
11 "would that have been Mr. Tabor?

12 "Yes. Mr. Tabor, yes."

13 And then he started just, you know, like a lot of
14 experts, they go on and talk, and it just kind of popped out.

15 And I, admittedly, was dumbfounded, but it was not in response

16 to a question. And perhaps I could have handled it better.
17 Maybe I was ineffective for not objecting to my own witness.
18 I'm not sure I can do that.
19 But any but subsequently when Dr. Prichard tried

20 to testify to it, it was objected to and I think it was raised

21 on appeal. And I know I objected to it when Mr. Meggs tried

22 to bring it up 1n closing argument. But this was

23 nonrespons1ve to a question, and it just -- and it came out.

24 Q was the Deadly Run mov1e, as the subject of a motion
25 1n limine of the defense, something that you gave a heads-up

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 about to your experts?

2 A To the best of my knowledge, I did. In handling

3 these -- this type of a case, not only did I do a, like,

4 sunday afternoon telephone conference trying to get four

5 experts together, I know when they all came into town and they

6 stayed at a hotel near I-10 off of Thomasville Road, we met at

7 a restaurant and we -- you know, to discuss, you know, talk

8 about, prepare for the case. And it would have been my -- the

9 other three didn't blurt it out so --

10 Q was there
11 A But -- if I could just finish. But there was -- I

12 guess 1n Dr. wu's mind, he did think that this kind of showed
13 the grandiosity. But I but I -- my practice would have
14 been to tell them to not bring it up because it was harmful.

15 Q okay. And would you agree, to some extent, Dr. wu

16 was right in that Mr. Hilton has overstated his contribution
17 to that film?
18 A That could be the case. I know they're go1ng
19 through some of the records that, you know, Mr. Hilton has

20 taken credit for coming up with that idea, and I don't really
21 know if that's true or false.

22 Q All right. And was the Dr. wu mentioning Deadly

23 Run, was that the incident 1n which Ms. Suber objected?

24 A I don't see that 1n the record. I mean, the record

25 will speak for itself.

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1 Q okay. Do you --

2 A The only thing -- okay.

3 Q Do you have any recollection of Ms. Suber objecting

4 during your questioning of a witness?

5 A It doesn't reflect so in the record here. The only
6 thing I can say is that when it came out -- and that's from
7 reviewing the record on appeal, that when-- well, after the
8 defense case was presented, in rebuttal, you all put on
9 Dr. Prichard, and then it was, like, a Friday so we had the
10 weekend for me to do my cross-examination on Monday.
11 And before we started the proceedings, according to

12 the record on appeal, I had a particular issue that I brought

13 up to the court, you know, moving for a mistrial. It had to
14 do with Dr. Prichard testifying through opinions of other

15 experts. And then since Ms. Suber had done the motion in
16 limine, it must-- it was discussed that, well, go ahead and,
17 you know, you can argue, you know, the Deadly Run issue.
18 what's the big deal?
19 Q okay.

20 A But that was out of the presence of the JUry. It's

21 stuff we were arguing in front of the court. But I didn't see

22 it in the records, but if it's 1n the record, it's in the
23 record. But I did not see her objection in the record.
24 Q And you don't have an independent recollection of
25 her objecting during your questioning during any portion of

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 trial? we may not have the right portion.

2 A I do not have any recollection, nor do I recall

3 see1ng anything. But admittedly, I didn't read the whole

4 trial transcript before my testimony here today.

5 Q okay. Did you, at any point, make an objection or
6 file a motion declaring the defendant ineligible for the death
7 penalty due to mental illness?
8 A No, I did not. And the Florida Supreme court has,
9 you know, repeatedly held that severe mental illness is not a
10 bar to the death penalty. I think most recently, you know, 1n
11 McCoy v. State, they reiterated that.

12 That's not to say that I don't file motions even,

13 you know, for the -- to preserve it, but I think that that's
14 an 1ssue that if it's raised in post-conviction or raised even

15 down the road, it'll be available to Mr. Hilton just like, you

16 know, competency to be executed or, you know, that -- so I

17 think 1n my opinion, that's kind of -- I mean, I'm deviating,

18 but this 1s kind of down the road that, you know, we've gone
19 through, you know, juvenile, competency, mental retardation,
20 and the next -- you know, the next thing in post-conviction or
21 death penalty is a bar to -- getting the u.s. Supreme court to
22 do a bar to severe mental illness. But no, I did not file a
23 motion.
24 Q And at the time you had no legal basis to do so?

25 A Correct. The Florida Supreme court repeatedly has

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1 rejected that.
2 Q All right. I want to ask you a little bit about the

3 issue with Ms. Bohanan. I know you said you weren't clear on

4 her role in the preparations, but she was physically present

5 for the trial; correct?

6 A Correct.
7 Q Or a portion of it.

8 were you present 1n court whenever Ms. Bohanan

9 addressed your client in a way that was of some concern?
10 A Yes.
11 Q could you tell us what you observed?

12 A I think I was discussing with Mr. Hilton that Betty

13 was no longer -- Betty Fuentes was no longer with the case.
14 Mr. Hilton was visibly upset, and I think I explained to

15 him you know, I told him that Betty quit, and I think the
16 reason was she was on -- I think I said she was under a lot of
17 stress and she -- or something to that effect.
18 And then all of a sudden, Merribeth, you know, came
19 up there and was like, That's not why Berry -- why Betty left.
20 And Paula and I were sitting there like, whoa. This was a
21 total interference with the attorney-client you know,

22 attorney-client relationship.
23 I ran upstairs looking for Nancy, found John
24 Tomasino instead, and for lack of a better word, Tomasino
25 extracted her from the courtroom. But I thought it was

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 totally detrimental to the attorney-client relationship.

2 Q And she was not present in the courtroom anymore

3 after that for that trial?

4 A Correct.

5 Q Did you feel

6 A I think then she subsequently withdrew or something

7 to that effect.

8 Q Okay. Did you -- I guess, did you feel that

9 anything about that incident made it necessary for you to

10 withdraw from your representation of Mr. Hilton?
11 A It was -- I know Paula was -- felt pretty strong --

12 Paula saunders, she felt pretty strong about that. And, you
13 know, I think there may have been an off-the-record -- I mean,
14 I do recall Paula, Ines and I, maybe with Judge Hankinson, we

15 went in chambers and maybe had some conversation about it,

16 about -- but it didn't rise I mean, I guess in the final
17 analysis, it didn't rise to the level that we were going to
18 withdraw. And that wouldn't have been my call anyway since I
19 wasn't lead attorney, but I know -- I think that Paula had a

20 strong feeling about it. But it was definitely -- it was a

21 bad thing.

22 Q okay. But ultimately the decision was made not to

23 withdraw?

24 A Correct.

25 MS. CAPPLEMAN: No further questions.

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1 THE COURT: Redirect?

2 REDIRECT EXAMINATION

3 BY MR. MORRIS:
4 Q Mr. Friedman, you were mentioning the Florida

5 Supreme court has routinely rejected claims that are made that

6 the death penalty shouldn't be applicable to persons with

7 severe mental illness; accurate?

8 A Correct.

9 Q You'd also agree with me that until Hurst, the

10 Florida Supreme court had rejected Ring claims?
11 A Correct.

12 Q Thus, the motion's not made, it doesn't follow the

13 track up the -- up the path?
14 A Correct.

15 Q And 1n this circumstance that motion was not made

16 for the court to rule on at the trial level?
17 A Say that one more time?
18 Q In this case that motion was not made related to the
19 mental illness --

20 A Correct.
21 Q -- for the trial court to rule on?
22 However, a Ring claim was made, trial court denied
23 it, and it remains reviewable?
24 A Correct. Although I did say and I do believe that
25 the that will be available to Mr. Hilton to raise in the

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 future, but that's not to say that I didn't ra1se it.

2 Q I don't want to get us mired in pipeline and that

3 sort of thing so

4 A Right, we won't.

5 Q was Mr. Hilton reliant upon your and Ms. Suber's

6 advice?

7 A I would say yes.

8 Q The reason I ask 1s, was the conversation with

9 Mr. Hilton, we're going to we're going to test the

10 evidence, he was in agreement with testing the evidence?

11 A I don't think he was ever in disagreement with -- I

12 would say yeah. I would say yes. Because in the absence of

13 an offer of a life sentence, this case was going to trial.

14 Q well, and the reason I ask is because are-- do you

15 env1s1on that there are potentially different ways of testing

16 the evidence?

17 A There could be, yeah.

18 Q And what I mean by that 1s it'd be one thing to look

19 at the jury and say, look, the State has the burden of proof

20 here; they've got to prove the case beyond a reasonable doubt;

21 you don't object to everything; you soft-pedal the

22 circumstance; you focus on the circumstances that you can,

23 with a straight face, legitimately challenge; you get to the

24 end of the guilt phase and say, we don't believe that the

25 State has proven their case beyond a reasonable doubt, versus

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 attacking and challenging the evidence by objecting to every

2 single item of evidence?
3 A Yeah. That's a -- I mean, that's a way -- a way

4 people conduct trials.

5 Q And what I want to -- Mr. Hilton was reliant upon
6 you and/or Ms. Suber to figure out the best way of testing or
7 attacking the evidence in a way that would be the best
8 presentation to the jury?
9 A Yes. And as I said earlier, I think he liked and
10 trusted us.
11 Q But there wasn't a discussion with Mr. Hilton

12 about -- you used the word "strategy" strategy or the

13 presentation where he had an election on how that was go1ng to
14 occur?

15 A Correct. And as I -- and as we discussed, I mean,

16 after, you know, we -- the team kind of like separated a
17 little bit in December, I didn't really have any more
18 discussions with him about what happened about the guilt
19 phase.
20 Q You've mentioned on a couple of occas1ons that the
21 evidence that would come out 1n the penalty phase could not be
22 woven into the guilt phase. Do you recall whether or not pill
23 bottles were found on or about Mr. Hilton's person when he was
24 arrested 1n Georgia?
25 A I don't recall right now off the top of my head. I

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1 do recall during the penalty phase we introduced into evidence

2 Ritalin. That was shown to the jury. I don't -- I don't -- I

3 don't recall off the top of my head.

4 Q Let's make the assumption that law enforcement took

5 a photograph and documented a pill bottle found in

6 Mr. Hilton's van when he was arrested and it says Dr. Delcher

7 on it. could not the question have been asked in the guilt

8 phase, an officer or investigator or Agent so-and-so, did you

9 se1ze any pill bottles during your search of Mr. Hilton's van?

10 A But I think -- I would say yes. But I think the --

11 what happened in GBI -- I don't recall what was presented from

12 the Georgia Bureau of Investigation right now off the top of

13 my head during the guilt phase, but I'm in agreement that that

14 would be something that I would ask.

15 Q You would have -- you would have woven 1n the fact

16 that the JUry is getting ready to hear something 1n the

17 penalty phase about Ritalin or drugs and Dr. Delcher?

18 A But I was not in charge of the guilt phase.

19 Q Had you been, would you have done that?

20 A It would be something I would consider.

21 Q Mr. Tabor wasn't called because he hated Mr. Hilton;

22 accurate?

23 A Those were my words, yes.

24 Q At one point --

25 A And I think he said that.

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1 Q And at one point 1n time Mr. Tabor had a positive

2 relationship with Mr. Hilton because he hired him as an

3 employee for the siding company?

4 A Correct.
5 Q Mr. Tabor watched Mr. Hilton -- his condition
6 deteriorate markedly?
7 A Correct.
8 Q To the point that he became fearful of Mr. Hilton
9 and actually armed himself because Mr. Hilton's conduct had
10 become so erratic?
11 A Correct.
12 Q He then finds out that Mr. Hilton 1s responsible for
13 not one but multiple homicides?
14 A Correct.
15 Q Reasonable that Mr. Tabor wasn't fond of the
16 homicidal person that he had previously employed?
17 A Correct.
18 Q You don't feel that that would have made rational
19 sense or been explainable to the jury?
20 A I think everything -- I think everything from
21 Mr. Tabor, through the GBI interview and we took a deposition
22 of him that was provided to the experts, came out
23 sufficiently. And like I said, he was a hostile -- not only
24 did he hate Mr. Hilton, he was a very hostile witness and I
25 didn't think it was a good thing to call him.

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 Q So you were reliant upon the GBI interview to convey

2 the observations that Mr. Tabor made over time and elected not

3 to have him communicate those directly to the jury?

4 A Right. Because I think everything that was 1n the

5 interview -- that was in the interviews was sufficient.
6 Q Likewise, as it relates to Dr. Delcher, you didn't
7 call him because of the balancing and the fear that
8 Dr. Delcher would testify that Mr. Hilton was dangerous?
9 A Correct.
10 Q He was not dangerous in Dr. Delcher's op1n1on when
11 he first became a patient though; correct?

12 A I don't think Dr. Delcher felt he was dangerous 1n

13 his presence. He thought he was a dangerous person.
14 Q Did he feel that way at the inception of the

15 patient-doctor relationship?
16 A I don't believe so.
17 Q would that not have explained to -- better explained
18 to the jury that the doctor's own conduct led to the doctor
19 believing him to be dangerous?

20 A I can't -- I can't say.

21 Q You mentioned the jail witnesses that Ms. Cappleman

22 mentioned, and you said that you check on records in terms of

23 behavior and things like that?

24 A And medication.

25 Q why would you check on disciplinary reports and

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1 medication and things of that nature at the jail?

2 A well, it just -- it's important to see what's go1ng

3 on with him. And, I mean, you know, any additional

4 psychiatric/psychological notes, any medication, is he acting

5 out, that would be all important information to provide the

6 experts to see -- to see where he's at.

7 Q Are you familiar with circumstances where you argue

8 to the jury that this individual does not have any

9 disciplinary reports, he's not a fighter, doesn't create

10 problems, he's compliant in his confinement, and, thus, ladies
11 and gentlemen of the JUry, it demonstrates that he's

12 warehousable and you don't have to kill him?

13 A Yeah. I mean, I agree that that would be good
14 information for a non- -- for the jury, to present as

15 nonstatutory mitigation. I think, you know, we did it

16 tangentially. He was already serving a life sentence and
17 society was adequately protected. But I totally agree that
18 that's helpful information for nonstatutory mitigation.
19 Q You mentioned that Ms. Fuentes didn't complete the

20 PowerPoint. Had she completed it, what would have been

21 different?
22 A Probably nothing. since it was objected to and we
23 made the decision not to piecemeal it, then nothing.
24 Q I'm going to show you a portion of what's been
25 introduced as Defendant's Exhibit III.

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1 MR. MORRIS: May I approach, Judge?

2 THE COURT: You may.

3 BY MR. MORRIS:
4 Q Ask you to look at those three slides. what do

5 those three slides depict?

6 A show Gary in his good days.

7 Q In his good days. who is Shawn Stewart?

8 A I believe it may have been a girlfriend or

9 Q Assuming, for argument's sake, that Shawn Stewart
10 met Gary Hilton when she was 15 years of age, and she viewed
11 him as a father figure who was a positive role model in her

12 life, that would be part and parcel of Mr. Hilton and his good
13 days; correct?
14 A Correct.

15 Q Do you know whether or not the slide of Mr. Hilton

16 embracing Shawn Stewart, dancing with Shawn Stewart's mom, or
17 Shawn Stewart and her mother hiking with Mr. Hilton, do you
18 know if those slides were presented to the jury?
19 A No.

20 Q And the reason was? was it because those witnesses

21 were not present to be able to talk about the positive
22 attributes of Mr. Hilton?
23 A I would have to g1ve me -- see if I -- with Shawn
24 Stewart, I don't recall the -- I don't recall the availability
25 of Shawn Stewart or not. But those slides definitely would be

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 helpful to humanize Mr. Hilton.

2 Q Certainly the testimony of the person who would

3 state that they viewed Mr. Hilton as a father figure and that

4 he was always respectful, car1ng, and kind, it would be

5 helpful as well, would it not?

6 A Right. But I think we did present the one witness

7 that testified similarly. But, of course, as much as you

8 could humanize Mr. Hilton, it would have been helpful.

9 Q Did Ms. Fuentes' work on mitigation and the

10 establishment of the matrix, did it matter?
11 A It's helpful.

12 Q Helpful?
13 A It was good.
14 Q Good. But what of it did you use?

15 A what I could.
16 Q Ms. Cappleman asked you questions about -- that when
17 all of a sudden people are asked to come to Tallahassee to
18 testify in a death penatly case that they become more
19 skittish, or, no, that's a hardship or whatnot. Did you
20 explore the opportunity of having those witnesses appear
21 remotely by video conference or seek leave of the court to do
22 so?

23 A I think a lot of those witnesses didn't want to

24 testify, period.

25 Q I understand the response. But did you seek the

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1 opportunity to have them appear remotely v1a video conference

2 or seek leave of the court to do so?

3 A The witnesses that were unwilling to testify were

4 not willing to testify, 1n my op1n1on or my conversation,

5 remotely or 1n court. Because even though they said certain

6 things, when they put two and two together -- two to two
7 together, Emerson and Dunlap, they became unwilling witnesses.

8 It was fine to -- you know, it was fine to speak to

9 Betty, talk about their observations. But when it came to

10 it was different with the law enforcement people, I mean, you
11 know. But with respect to a lot of the lay witnesses, it

12 wasn't a question of the travel. we would have-- we would

13 have paid for their travel.
14 Q Ms. Fuentes developed some 300 witnesses 1n her

15 mitigation research and investigation, and amongst those, only

16 11, I guess, were willing to travel?

17 A well, no. well, some was videotape, some was audio

18 tape, so it was not something that was not utilized, audio
19 tape and videotape and live testimony. I mean, my testimony

20 is the witnesses that I didn't call wasn't so much about

21 traveling as it was unwilling to testify. And I think I said

22 earlier that I don't want to start subpoenaing send a

23 subpoena to somebody who doesn't want to testify.

24 Q Back to Shawn Stewart briefly, had you received a

25 memorandum from Ms. Fuentes saying that she spoke with Shawn

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1 Stewart and Shawn Stewart's mother and they provided

2 information about the positive relationship with Mr. Hilton,

3 the time period being 1991, 1992, you would have passed that

4 information on to your expert so they would be clued in to

5 that information?

6 A Presumably, yes.
7 Q Do you not draw any distinction between your expert

8 being given the information and being a filter of that

9 information before the jury as compared to them actually

10 the people actually telling the jury about the relationship?
11 A I think in that instance it would -- that would be

12 helpful for the JUry.

13 Q okay. You've made reference a couple of times 1n a
14 very clinical and legalistic way to supreme court op1n1ons,

15 statutory aggravators and mitigators. of course, I assume you

16 don't speak necessarily that way to a JUry during a closing
17 argument or something along those lines?
18 A But I recall we had a PowerPoint that list --

19 bullets that listed all the -- the two statutory mitigators

20 and the ten nonstatutory mitigators. And I think in closing
21 argument I tried to present some evidence that came out to
22 establish each one.
23 So in the sense -- yeah, I had a PowerPoint so I

24 do -- and I know we were attacking -- you know, also during

25 closing argument, you attack the aggravators. And I know a

LISA BABCOCK, OFFICIAL COURT REPORTER

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1 big argument in the case was attacking the HAC and the CCP,
2 because we argued that the State was trying to extrapolate

3 what happened in Georgia to what happened here through that

4 very damaging interview that was played to the jury during

5 closing argument by the State.
6 Q Prior to your involvement 1n Mr. Hilton's case, had
7 you attended continuing legal education courses such as "Life
8 over Death," or "Death That's Different"?

9 A To the best of my knowledge, yes. I try and keep up

10 every year or two. And I know you know, I'm sure once I
11 got on, I made sure that I was up to speed.

12 Q Do those courses encourage or discourage

13 communication between the attorney handling the guilt phase
14 and the penalty phase?

15 A I would say they encourage communication.

16 Q Do those courses encourage or discourage a common
17 theme to get to the end goal point?
18 A You want to be on the same page.
19 Q Do you believe that you were on the same page?

20 A There was a lack of communication towards the end

21 and that was because of what transpired. It was not -- it was
22 not optimal circumstances to be trying a high profile death
23 penalty case.

24 Q You don't believe that had any impact on the verdict

25 or the decision of the jury?

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1 A I can't answer. I don't -- I don't have a -- I

2 don't know.

3 MR. MORRIS: Thank you, Slr.

4 THE COURT: All right. You can step down.

5 we need to keep Mr. Friedman any longer?

6 MR. MORRIS: No, sir. He can be released.

7 THE COURT: You need him, Ms. Cappleman?

8 MS. (APPLEMAN: No, sir.

9 THE COURT: All right. You're excused. Thank you

10 for being here.
11 where do we stand on further testimony?

12 MR. MORRIS: Judge, and I know the answer, the

13 court's likely response to this. I've been encouraged to
14 ask the court to keep the evidence open so I can take

15 Dr. Maddox's testimony at a later point 1n time.

16 The basis of her absence is because of the Florida
17 Medical Board licensing board. My response when I was
18 asked to is that the court is going to very promptly
19 respond and say no, we've had our opportunity to procure

20 witnesses, and the evidence is going to be closed.

21 THE COURT: what's the State's position?

22 MS. CAPPLEMAN: The State would object to leaving

23 the evidence open, Judge.

24 THE COURT: Give me some idea of what you would

25 anticipate from Dr. Maddox.

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1 MR. MORRIS: Dr. Maddox is a medical doctor,

2 psychiatrist. She was involved in Mr. Hilton's defense

3 team in North carolina. She generated, with the North

4 carolina defense team, a great deal of mitigation that

5 and detailing Mr. Hilton's psychiatric episodes beginning

6 at an early age and traumatic events that began at an

7 early age; that she would opine that Mr -- the Ritalin

8 and the Effexor was not -- this was not a "all of a

9 sudden," a revelation; that Mr. Hilton had many aspects

10 of his life that were broken and very damaged early
11 development stage; and as life progressed, he began to

12 evidence greater and greater psychiatric issues

13 ultimately and culminating in mis-prescribed drugs being
14 the tipping point.

15 And she's met with Mr. Hilton on -- both during the

16 pendency of the North carolina prosecution and met with

17 the Department of Justice in avoidance of the death
18 penalty, and she's since met with Mr. Hilton during the
19 pendency of this proceeding.

20 THE COURT: If you're if you're telling me that

21 you're asking to leave the evidence open after today, I

22 deny that request. This matter has been pending for a

23 long time. we're way beyond when we're supposed to have

24 resolved the 3.851. I can't remember exactly when it

25 first started. I know we're on our second amended

LISA BABCOCK, OFFICIAL COURT REPORTER

1575
 566

1 motion. It's time to get it done, so I deny your

2 request.

3 Beyond that, do you have further testimony?

4 MR. MORRIS: No, Your Honor. Defense rests.

5 THE COURT: Is the State going to have testimony?

6 MS. (APPLEMAN: No, sir.

7 THE COURT: Have you all discussed what I raised

8 yesterday about how we're going to define the record?

9 MR. MORRIS: we have, Judge. Ms. Keegan and I have

10 discussed it, and we believe that the entirety of the
11 record, jury selection and trial, as well as the case

12 managements and motion hearings that preceded, should be

13 made part and parcel of the record.
14 THE COURT: so essentially, let's say, the entire

15 record --

16 MR. MORRIS: Yes, s1r.

17 THE COURT: -- of the trial court 1s the record for
18 the 3. 851.
19 MR. MORRIS: Yes, Your Honor.

20 MS. KEEGAN: Correct.

21 THE COURT: All right. State's 1n agreement?

22 MS. KEEGAN: Yes, Your Honor.

23 THE COURT: All right. Does that leave the clerk

24 with any ambiguity as to --

25 THE CLERK: No, s 1 r.

LISA BABCOCK, OFFICIAL COURT REPORTER

1576
 567

1 THE COURT: -- what the record is?

2 THE CLERK: No, Slr.

3 THE COURT: All right. If ambiguity should develop,

4 you need to communicate with the attorneys, but the

5 intention is that the full record would be part of the

6 the full trial record will be part of this record.

7 Any other 1ssues we need to raise in terms of record

8 or evidence?

9 MR. MORRIS: No. As I understand it, Your Honor has

10 already provided instruction to the office of the
11 official court Reporter, or will do so on its own motion

12 and order, for the transcription of these proceedings, or

13 does Your Honor need me to file an appropriate motion and
14 order?

15 THE COURT: It probably wouldn't hurt to do a motion

16 and order to that effect, although I've already
17 instructed them to start work on it. They will do so
18 promptly. They divided it up so they'd have a different
19 court reporter each day to facilitate their work, and I

20 will encourage them to do so promptly.

21 They understand there is the rule of a max1mum 45

22 days, but I anticipate it'll be done well before then.

23 And I would ask that the court reporters notify counsel

24 when filing. I don't know that there will be -- they may

25 be filed separately so -- we have three different court

LISA BABCOCK, OFFICIAL COURT REPORTER

1577
 568

1 reporters so they may not all be filed the same day. I

2 would ask the court reporters to notify counsel when it's

3 been filed.

4 counsel has 30 days from the filing of the final

5 transcript to prepare written closing argument. It'll be

6 simultaneous filings. And I will say that sometimes

7 attorneys shy away from this, but the rule provides that

8 the closing argument should include requested

9 conclusions -- you know, findings of fact and conclusions

10 of law.
11 I know particularly sometimes the attorney general's

12 office tends to shy away from that under some parano1a

13 that it will be used in an order. well, I think that's
14 what the rule contemplates, and I would encourage you, if

15 you think there should be a finding of fact or a

16 conclusion of law, it should be included in your written
17 closing argument.
18 so with that, does that leave anything -- anyone
19 confused or uncertain?

20 MR. MORRIS: No, sir. I think that I'll take care

21 of the motion and order as it relates to the transcripts.

22 I'm clear on the -- on our procedure going forward. And

23 then the only other thing that I need instruction on from

24 the court is whether or not -- whether I need to address

25 Mr. Hilton's transport.

LISA BABCOCK, OFFICIAL COURT REPORTER

1578
 569

1 THE COURT: It would be my intention to simply have

2 Mr. Hilton returned to Department of Corrections' custody

3 unless you have some other request.

4 MR. MORRIS: I don't have another request. Is the

5 bailiff's unit okay without on order and based on the

6 court's instruction?
7 THE COURT: Yeah. we don't need an order on that.

8 Madam clerk, if you'll just reflect that --

9 THE CLERK: Yes, sir.

10 THE COURT: -- Mr. Hilton be returned to Department
11 of Corrections.

12 I had one other thought that escaped me. Give me

13 one second.
14 Must not have been important -- oh, I know. It

15 would be helpful to the court if your closing arguments

16 can be provided to the court in a electronic format such
17 as word or word Perfect in case the court decides to use
18 any portions of the written closing argument.
19 MR. MORRIS: Yes, sir.

20 THE COURT: All right. Anything else?

21 MR. MORRIS: No, sir.

22 THE COURT: All right. we'll be 1n recess.

23 (Proceedings concluded at 12:23 p.m.)

24

25

LISA BABCOCK, OFFICIAL COURT REPORTER

1579
 570

1 CERTIFICATE
2 STATE OF FLORIDA:

3 COUNTY OF LEON:

4 I, LISA A. BABCOCK, Official Court Reporter, do

5 hereby certify that the foregoing proceedings were taken
6 before me at the time and place therein designated; that my
7 shorthand notes were thereafter translated under my
8 supervision; and the foregoing pages are a true and correct
9 record of the aforesaid proceedings.
10 I FURTHER CERTIFY that I am not a relative,
11 employee, attorney or counsel of any of the parties, nor

12 relative or employee of such attorney or counsel, or

13 financially interested in the foregoing action.
14

15 DATED this 29th day of November, 2018.

16

17

18
19
____d.C2g~~~~~~-------­
20 LISA A. BABCOCK
OFFICIAL COURT REPORTER
21 LEON COUNTY COURTHOUSE
TALLAHASSEE, FLORIDA 32301
22
23
24

25

1580
Filing# 81480082 E-Filed 11/.Jv/2018 04:10:05 PM

IN THE CIRCUIT COURT OF THE

SECOND JUbiCIAL CIRCUIT IN AND
FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697 A

SPNNO.: 197149
vs.

GARY MICHAEL IDLTON,

Defendant.
--------------~----~/
SCHEDULING ORDER

nns cause coming Oil to be heard sua :;ponte, it is hereby

ORDERED AND ADJUl>GED that written closing arguments shall be due
from both parties by the end of the. day January 14, 2019. In addition to propedy
filing the response, a courtesy copy should be subtnitte(j to the Court in Word
format. No reqoests for an extension will be entertained. If a party chooses not to
file a written Closing argument, the Court will proceed. to rule without it.

DONE AND ORDERED this 30th day ofNovetnber, 2018, in Tallahassee,

Leon County, Florida.

cc:
Eddie. Evans, Assistant State Attorney
Georgia Cappleman, Assistant State Attorney
Robert A. Mortis, Co\1Ilse1 for Defendant
Jertnifer Keegan, Assistant Attorney General

1581
Filing# 83325291 E-Fi1ed 01/14/2019 04:48:49 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No. 2008-CF-000697

CAPITAL CASE
GARY MICHAEL HILTON,

Defendant

STATE'S POSTCONVICTION HEARING

CLOSING ARGUMENT

COMES NOW, the State of Florida, by and through the undersigned counsel, and hereby

submits the State's Postconviction Hearing Closing Arguments. On April 20, 2017, Hilton filed

his Second Motion for Leave to Amend Initial Postconviction Motion and Incorporated

Memorandum of Law (hereinafter "Motion"), raising seven claims. The State filed its answer to

Hilton's Motion (hereinafter "Answer" or "State's Answer") on May 15, 2017. Hilton filed an

Amended Claim 6 on July 21, 2017, and the State filed its answer on August 7, 2017. An

evidentiary hearing was held October 30, 31, and November I, 2018, where Hilton presented

testimony and exhibits to support his Motion. Because the evidentiary hearing did not produce

any evidence that entitled Hilton to relief, Hilton's Motion should be denied. The State submits

this written closing argument in support.

Record Citations

Citations to the record are as follows: The direct appeal record shall be referred to by "R"

and followed by the volume and page number; references to Hilton's Motion shall be referred to

1582
by "Motion" followed by the page number; references to the evidentiary hearing transcripts shall

be referred to by "Evid. Hrg. Trans." and the page number. Other references are self-evident

Facts and Procedural History

Hilton was convicted of grand theft, and the kidnapping and first-degree murder of

Cheryl Dunlap. The relevant facts concerning the crimes are recited in the Florida Supreme

Court's opinion on direct appeal:

On February 28, 2008, a Leon County grand jury indicted Gary Michael Hilton
for the first-degree murder of Cheryl Dunlap between December I and December
15, 2007, kidnapping, grand theft of a motor vehicle, and grand theft of currency.
Hilton pleaded not guilty on March 14, 2008. Hilton proceeded to a jury trial
commencing on February 2, 2011.

Cheryl Dunlap, 46, was last seen alive on December I, 2007. That morning,
Dunlap called a friend, Kiana Hill, and made arrangements to have dinner with
her that evening. That afternoon, Dunlap went to Leon Sinks to read, where she
was seen by Michael and Vikki Shirley at approximately 1:30 p.m. The Shirleys
described that Dunlap was wearing jeans and a sweater and carrying a hardback
book Dunlap did not arrive for dinner that evening and was missed at church the
following morning by Tanya Land. Land went to Dunlap's residence and found
her dog, but noticed that her car was missing so she called the police. Steven
Ganey of the Wakulla County Sheriffs Office took the missing person report on
December 3, 2007.

Dunlap's car, a white Toyota Camry, was found on December 3, 2007, on the side
of Crawfordville Highway parked near the woods. The car had deliberate tire
punctures in the sidewall that was later identified as a bayonet piercing. On
December I, the car had received a disabled vehicle ticket from Florida Highway
Patrol Trooper Brian Speigner. Ganey testified that it appeared that someone had
driven into the woods with all four tires intact and punctured the tire after the car
had been parked. Dunlap's purse was recovered in her car, but no money was
found.

Dunlap's Ameris Bank account records revealed that Dunlap cashed a check with
a drive-through teller at 11:17 a.m. on December I. The records further revealed
that three cash withdrawals were made at the ATM at Hancock Bank on West
Tennessee Street on December 2, 3, and 4, 2007, totaling $700. In addition, two
attempted withdrawals were-declined because they exceeded the daily limit. The
video from the security camera at the bank showed that the person making the

1583
transactions was wearing a blue and white patterned, long-sleeved shirt, glasses, a
hat, and a make-shift mask made from tape.

Dunlap's body was discovered on December 15 by Ronnie Rentz while he was

hunting in the Apalachicola National Forest. Dunlap's body was near a forest
road and had been covered with some brush and limbs. Additionally, her head
and hands had been removed. Dunlap's body was identified using a sample of
thigh muscle. Dr. Anthony Clarke, an associate medical examiner, performed the
autopsy. Dr. Clarke opined that Dunlap's head and hands had been removed by
an instrument with a sharp blade and that the dismemberment occurred
postmortem. The cause of death was not able to be determined, but Dr. Clarke
opined that it was likely to have been a violent homicide. Additionally, Dr.
Clarke noted that there was a significant pre-mortem bruise located on Dunlap's
middle to lower back and that the bruise was not consistent with a normal fall
injury. Dr. Clarke estimated that Dunlap's body could have been in the woods for
seven to fifteen days. Dr. Clarke testified that his best estimate was that Dunlap
died between December 5 and December 8, 2007.

On January 9, 2008, investigators found what they believed to be the remains of

Dunlap's head and hands in a fire pit at Joe Thomas campsite-approximately
seven miles from where her body had been found. The bone fragments were
charred. Because of the burn damage, no DNA was recoverable from the
fragments. Dr. Anthony Falsetti, a forensic anthropologist, opined that there were
two hands represented, that the bones were from an adult, and that the bones were
from a person with small hands.

Several witnesses testified that they saw or encountered Gary Michael Hilton
during the time period surrounding Dunlap's disappearance. In late November
2007, George Ferguson encountered Hilton on LL Wallace Road. Hilton asked
Ferguson for a jump start because his van, a white Chevrolet Astro, would not
crank. Ferguson testified that it did not appear to him that Hilton actually needed
the assistance. Ethan Davis provided similar testimony, that sometime in late
November 2007, Hilton stopped him and asked for help starting his vehicle. Davis
declined. Shawn Matthews also encountered Hilton in late November near his LL
Wallace Road camp. Hilton appeared to be familiar with the area and told
Matthews about a nearby sinkhole. On December 1, 2007, Celeste Hutchins saw
Hilton on Crawfordville Highway, not far from Leon Sinks. Hutchins testified
that Hilton was rummaging through a white Camry on the side of the road. On
December 10, 2007, Loretta Mayfield spoke to Hilton at a convenience store on
Crawfordville Highway. Mayfield testified that Hilton was wearing a blue and
white patterned shirt. Hilton was also wearing something on his left side that
looked like a large knife holder. Mayfield testified that the shirt she saw Hilton
wearing looked like the one in the ATM security video. On December 11, 2007,
Stephen Prosser saw Hilton in the Apalachicola National Forest. On December

1584
12, 2007, Michael Travis saw Hilton in the forest near the Bloxham cutoff and
then saw him again on December 14. On December 18, 2007, Teresa Johnson
saw Hilton in Bristol, Florida, where Hilton told her that she looked like Dunlap
and that it was "too bad" about that girl getting murdered.

Sometime between December 18, 2007, and January 1, 2008, Hilton made his
way to Georgia where he kidnapped and murdered Meredith Emerson. Hilton
took Emerson from Blood Mountain and held her for four days before murdering
her. He cooperated with Jaw enforcement in exchange for a life sentence. Hilton
was arrested in Georgia after Stephen Shaw saw Hilton walk to the back of a
convenience store in the direction of the store's dumpsters and called law
enforcement. Law enforcement officers recovered items Hilton was seen
discarding in a dumpster at the convenience store. From the dumpster, law
enforcement recovered a U.S. Forestry citation for unauthorized camping, a knife
and sheath, Hi-Tee boots, some chain, a padlock, gloves, a jacket, a folding
police baton, and a blue backpack. Hilton gave Georgia officials information on
where to find his bayonet on a hiking trail on Blood Mountain in North Georgia.
Later, Jeff Foggy, an FDLE tool mark expert, matched the bayonet to the
puncture marks in Dunlap's tire. Georgia law enforcement also gathered items
from Hilton's van. Items recovered from the van included clothing, jackets,
gloves, camping equipment, duffel bags, two sleeping bags, Hi-Tee boots, a
camera, tobacco rolling papers, Hilton's Georgia driver's license, tape, paper
towels, maps, two BB pistols, a book purchased at a Tallahassee book store, and
dog food.

On February 12, 2008, Sergeant David Graham and Detective Dawn Dennis with
the Leon County Sheriff's Office executed a search warrant on Hilton while he
was in custody in Georgia. Hilton's DNA was collected and the entire execution
of the warrant was recorded. Portions of the recording were played for the jury.

On June 6, 2008, Sergeant Graham and two other officers drove Hilton from
Georgia to Florida. Although Hilton was not questioned, he spoke for nearly the
entire five-hour drive, which was recorded. The State also played portions ofthis
recording at trial. Hilton stated:

I'm not all bad. I mean, you got to understand, I mean, I'm sure you can see. I
mean, I'm a [expletive] genius, man. I'm not a-I'm not all bad. I just, you know,
lost my mind for a little bit. Lost a grip on myself, man. What can I tell you? FBI
and everybody else is trying to scratch their head, hey, guys don't get started
doing my shit at 61 years old. It just don't happen, you know. Like there's a retired
FBI (indecipherable) named Cliff Van, Clifford Van Zandt, that keeps getting
himself in the news, talking about me. And he said, this guy didn't just fall off the
turnip truck, he said. You know, in other words, he's been doing this. But like I
told you before, you know, when I saw you before, I said, remember, I said I'd

1585
 give you one for free. Nothing before September, okay? I mean, I'm not joking,
okay? I just, I got old and sick and couldn't make a living and just lost, flat lost
my [expletive] mind for a while, man. I couldn't get a grip on it.

Additionally, Hilton made statements to a fellow inmate at the Leon County Jail
that were overheard by Correctional Officer Caleb Wynn. Specifically, Hilton
told inmate Summers that he could answer all the State Attorney's questions if he
would give him a life sentence, that he would reveal where the head was located,
that his bayonet was used on Dunlap's tire, that he would explain how he "pulled
it off' on a busy highway, that he spent a few hours or a few days with Dunlap,
and that he felt no regret other than getting caught.

The penalty phase began on February 17, 2011, during which the state called Clay
Bridges of the Georgia Bureau of Investigation. Agent Bridges testified about
Hilton's prior felony conviction-the murder of Emerson in Georgia to which
Hilton pleaded guilty. The State played Hilton's taped conversation with law
enforcement where he described kidnapping Emerson, holding her captive, and
stripping her body naked to remove DNA and fiber evidence. He also stated that
"you either kill them or you get caught."

Hilton presented four expert witnesses who testified regarding his psychological
condition: Dr. Joseph Wu, a psychiatrist and clinical director of the Brain Imaging
Center at the University of California, Irvine; Dr. Charles Golden, a clinical
neuropsychologist performing neuropsychological testing and examinations; Dr.
Abbey Strauss, a psychiatrist with special expertise in psychopharmacology; and
Dr. William Morton, a board certified psychiatric pharmacist and professor; and
nine lay witnesses. The State then called Dr. Greg Prichard in rebuttal.

On February 21, 2011, the jury recommended unanimously that Gary Hilton be
sentenced to death for the murder of Cheryl Dunlap.

The trial court held the Spencer 1 hearing on April 7, 2011. The State presented
three victim impact witnesses: (I) Ms. Emma Blount, the victim's aunt; (2) Laura
Walker, the victim's best friend; and (3) Gloria Tucker, the victim's cousin. Hilton
presented no witnesses.

The trial court found that the State had proven six aggravators beyond a
reasonable doubt. Assigning weight to each aggravator, the trial court found: (!)
the defendant was previously convicted of a violent felony (great weight); (2) the
murder was committed in the course of a kidnapping (great weight); (3) the
murder was committed to avoid arrest (moderate weight); (4) the murder was
committed for pecuniary gain (some weight); (5) the murder was especially

1 Spencerv. State, 615 So.2d 688 (Fla. 1993).

5

1586
 heinous, atrocious or cruel (HAC) (great weight); and (6) the murder was cold,
calculated, and premeditated (CCP) (great weight).

The court also considered and weighed each mitigating circumstance proposed by
Hilton and found one statutory mental mitigating factor-at the time of the
murder Hilton was under extreme emotional distress (some weight). Under the
catch-all provision, the trial court considered ten mitigating factors, finding that
Hilton established eight of them and rejecting two. The court found: (1) Hilton
grew up in an abusive household (some weight); (2) Hilton abused drugs,
specifically Ritalin (some weight); (3) Hilton was deprived of a relationship with
his biological father (moderate weight); (4) Hilton is already serving a life
sentence so society is protected (some weight); (5) Hilton served his country in
the U.S. military (very little weight); (6) Hilton suffered maternal deprivation and
Jack of bonding between mother and child (some weight); (7) Hilton was removed
from his home and put into foster care when he was a child (some weight); (8)
Hilton grew up in a financially poor family (not proven); (9) Hilton suffered a
traumatic brain injury as a child (some weight); and (10) Hilton suffers from
severe mental defects (not proven).

On April 21,2011, the trial court followed the jury's unanimous recommendation
and sentenced Hilton to death. The court found beyond a reasonable doubt that
the aggravators outweighed the mitigators.
Hilton v. State, 117 So. 3d 742, 746-50 (Fla. 2013) (footnote included).

On appeal to the Florida Supreme Court, Hilton raised six claims: 1) the trial court erred

in admitting his statements to law enforcement as they constituted inadmissible Williams rule

evidence; 2) the trial court erred in admitting Dr. Gregory Prichard's testimony regarding

Hilton's past criminal conduct, as it constituted a nonstatutory aggravating circumstance

(hereinafter, "aggravator"); 3) the trial court erred in permitting Dr. Prichard to remain in the

courtroom, despite invocation of the rule of sequestration; 4) the evidence was insufficient to

find that the HAC and CCP aggravators were proven; 5) the trial court erred in rejecting the lack

of capacity mitigating circumstance (hereinafter, "mitigator") and failed to make findings to

support the ruling; and 6) the death sentence violates Ring v. Arizona, 536 U.S. 584 (2002). The

Florida Supreme Court affirmed Hilton's convictions and death sentence. Hilton, 117 So. 3d at

1587
756. Hilton's petition for certiorari to the United States Supreme Court was denied on December

2, 2013. Hilton v. Florida, 134 S. Ct. 686 (2013).

On November 25, 2014, Hilton filed a Motion for Postconviction Relief under Rule

3.851. The State filed its answer on January 26,2015. Thereafter, on July 24,2015, Hilton filed a

Motion for Leave to Amend Initial Postconviction Motion and Incorporated Memorandum of

Law, attaching his Amended Motion for Postconviction Relief. The Court granted the Motion for

Leave to Amend Initial Postconviction Motion on July 28,2015, and the State filed its answer on

August 14, 2015. On January 20, 2016, this Court entered a stay pending the Florida Supreme

Court's decisions on the application of Hurst v. Florida, 136 S. Ct. 616 (2016). The stay was

lifted in open court on March 23, 2017. Hilton filed his Second Motion for Leave to Amend

Initial Postconviction Motion and Incorporated Memorandum of Law on April 20, 2014,

attaching his Second Amended Motion for Postconviction Relief. In response to the Court's June

14, 2017 order striking Hilton's Claim 6 for legal insufficiency, Hilton filed an Amended Claim

6 on July 21, 2017. The State filed an answer to Hilton's Amended Claim 6 on August 7, 2017.

An evidentiary hearing was held October 30, 31, and November I, 2018, during which Hilton

presented testimony and exhibits to support his Motion.

At the evidentiary hearing, Hilton presented the testimony of Hilton's defense team

members, including Robert Friedman, Ines Suber, Paula Saunders, Tracy Record, Merribeth

Bohanan, Steven Been, Beatriz (Betty) Fuentes, and Chris EUrich. Hilton presented the

testimony of other members of the Public Defender's Office, including then-elected Public

Defender Nancy Daniels, then-Deputy Public Defender Andy Thomas, and Julie Hartwein,

Friedman's assistant. Per the testimony presented, Suber was lead attorney in the guilt phase,

1588
Friedman was lead attorney in the penalty phase, Fuentes was the mitigation specialist, and

Ellrich was the fact investigator. Saunders, Record, Bohanan, and Been all assisted the case in

smaller roles. (Evid. Hrg. Trans. at 183, 275-77, 325). Hilton also presented the lay testimony of

Dr. Deicher, the physician who treated Hilton prior to Cheryl Dunlap's murder. Hilton called one

expert witness, Dr. Norman Camp, to testify about Hilton's military records. (Evid. Hrg. Trans.

at 143).

Ineffective Assistance of Counsel

(a) Ineffective Assistance of Counsel Generally

To establish ineffective assistance of counsel (also known as a Strickland claim), Hilton

must satisfy a two-prong test, establishing deficient performance and prejudice. Strickland v.

Washington, 466 US. 668 (1984). To establish deficient performance, Hilton must show that

counsel made specific errors so serious that s/he was not functioning as the counsel guaranteed

by the Sixth Amendment. Id. at 687; Pietri v. State, 885 So. 2d 245, 252 (Fla. 2004) ("a court

deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged

conduct on the facts of the particular case, viewed as of the time of counsel's conduct") (quoting

Strickland, 466 US. at 690). Strickland refrained from providing specific guidelines to evaluate

counsel's performance and held "[t]he proper measure of attorney performance remains simply

reasonableness under prevailing professional norms." 466 US. at 688. To establish prejudice,

Hilton must show that there is a reasonabkprobability that but for trial counsel's deficiencies, he

would have received a different outcome. Sears v. Upton, 561 U.S. 945 (2010).

"Judicial scrutiny in these cases must be 'highly deferential' and 'every effort ... made to

eliminate the distorting effects of hindsight"' Bryant v. State, 901 So. 2d 810, 820 (Fla. 2005)

(citing Strickland, 466 US. at 689). The standard for evaluation is not whether an attorney could
8

1589
have done more. Pagan v. State, 29 So. 3d 938, 949 (Fla. 2009). Rather, "[c]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment'' Strickland, 466 US. at 690.

The presumption of adequacy is heightened when rev1ewmg the conduct and

performance of an experienced trial lawyer. Chandler v. United States 218 F. 3d 1327, 1316

(11th Cir. 2000); Provenzano v. Singletary, 148 F. 3d 1327, 1332 (11th Cir. 1998) (stating, "Our

strong reluctance to second guess strategic decisions is even greater where those decisions were

made by experienced criminal defense counsel."). In line with this standard of deference, an

attorney is not ineffective for strategic decisions that are part of the trial strategy, even if these

decisions appear to be unwise in retrospect "The decision will be held to have been ineffective

assistance only if it was 'so patently unreasonable that no competent attorney would have chosen

it"' Dingle v. Sec'y Dept of Corr., 480 F.3d !092, 1099 (11th Cir. 2007) (quoting Adams v.

Wainwright, 709 F.2d 1443, 1445 (lith Cir. 1983)).

Because a court can make a finding on the prejudice prong of Strickland without ruling

on the deficiency prong, claims of ineffective assistance of counsel are subject to denial when the

court can determine the outcome of the proceeding would not be affected even if counsel were

deficient. Franqui v. State, 59 So. 3d 82, 96 (Fla. 2011); Troy v. State, 57 So. 3d 828 (Fla. 2011);

Walls v. State 926 So. 2d 1156, 1173 (Fla. 2006) (summary denial appropriate on ineffective

assistance of counsel claim where evidence was cumulative). See also Stewart v. State, 801 So.

2d 59, 65 (Fla. 2001) (where the Strickland standard requires establishment of both the deficient

performance and pr~udice prongs, when a defendant fails to make a showing as to one prong, it

is not necessary to assess the other prong). "Failure to sufficiently allege both prongs results in a

1590
summary denial of the claim." Spera v. State, 971 So. 2d 754, 758 (Fla. 2007) (citing Thompson

v. State, 796 So. 2d 511,514 fn. 5 (Fla. 2001)).

In penalty phase proceedings, trial counsel is expected to exercise reasonable strategic

judgement in deciding what mitigation to present and what theme to use. Counsel is expected to

make these decisions only when fully informed by a thorough mitigation investigation. Brooks v.

State, 175 So. 3d 204, 227-31 (Fla. 2015). The Florida Supreme Court has held that counsel may

withhold available evidence when he has a reasonable strategic basis for doing so. Hannon v.

State, 941 So. 2d 1109, 1126-28 (Fla. 2006) (holding counsel was not ineffective for failing to

investigate or present certain mitigation because it was inconsistent with the penalty phase

theme); Brooks, 175 So. 3d at 221. Trial counsel's penalty phase theme is not unreasonable

simply because it opens the door to the State's rebuttal evidence. Rigterink v. State, 193 So. 3d

846, 877 (Fla. 2016) (holding trial counsel's "good person" theme was reasonable, despite

opening the door for the State to present rebuttal evidence of bad character).

(b) Ineffective Assistance of Counsel in Jury Selection

An allegation of ineffective assistance of counsel during jury selection is subject to a

uniquely stringent standard of prejudice. Proof on the face of the record that specific jurors that

served on Hilton's jury harbored an actual bias is required to demonstrate that Hilton was

prejudiced by counsel's actions during jury selection. Absent such proof of actual bias, a claim

of prejudice in jury selection is based on conjecture about what could have occurred and is

insufficient for Strickland relief. In Carratelli v. State, 961 So. 2d 312 (Fla. 2007), the Florida

Supreme Court concluded that a Strickland claim for failing to preserve a denial of a challenge

for cause must establish that an actually biased juror sat on the jury, and such bias must be plain

10

1591
on the face of the record. The court went on to define an actually biased juror as one who is not

impartial; one who is biased against the defendant. Carratelli, 961 So. 2d at 324.

A juror is competent if s/he "can lay aside any bias or prejudice and render his verdict

solely upon the evidence presented and the instructions on the law given to him by the court."

Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984). Therefore, actual bias means bias-in-fact that

would prevent service as an impartial juror. See United States v. Wood 299 U.S. 123, 133-34

(1936) (stating, in a case where US. government employees served as jurors in a criminal case

prosecuted by the U.S. government, that the jurors' employment status did not automatically

disqualify them, but the defendant had the ability during voir dire to "ascertain whether a

prospective juror ... has any bias in fact which would prevent his serving as an impartial juror").

The Carratelli requirement for a defendant to establish actual bias extends to various

types of Strickland claims involving jury selection. In Johnson v. State, 63 So. 3d 730 (Fla.

2011), the Florida Supreme Court applied Carratelli to a Strickland claim for failure to

sufficiently question potential jurors on exposure to pretrial publicity. Although some jurors did

not confirm impartiality, actual bias was not plain on the face of the record, and the Court found

that the Strickland claim necessarily failed.

In Owen v. State, 986 So. 2d 534 (Fla. 2008), the Florida Supreme Court applied

Carratelli to a Strickland claim for failure to challenge and remove three jurors. The Court

rejected the notion that Owen need only show that there was a question about juror impartiality.

Although one of Owen's jurors gave confusing answers about weighing mitigation and said she

would "probably" vote for death, counsel was not ineffective for failing to strike her because

these facts did not establish actual bias on the face of the record. Id. at 550. See Smithers v.

II

1592
State, 18 So. 3d 460 (Fla. 2009) (rejecting Strickland claim where juror indicated, "if they are

guilty without a doubt they should get the death penalty," but that he could vote for life if he

"had to," because actual bias was not clear on the face of the record).

The Merits

Claim 1: Whether Trial Counsel was Ineffective during the Penalty Phase of
Hilton's Trial

Hilton alleges that trial counsel was ineffective during the penalty phase of his trial for

failing to conduct a competent mitigation investigation, (Motion at 28), failing to present

compelling mitigation that the defense team possessed, (Motion at 5-6), and for failing to

effectively present the mitigation evidence they used (Motion at 23). The evidence presented at

the evidentiary hearing demonstrates that trial counsel conducted a thorough and complete

investigation of the mitigation in Hilton's case, and trial counsel's decisions about which

evidence and witnesses to present were reasonable strategic decisions. As Hilton has failed to

demonstrate that trial counsel was ineffective during the penalty phase of Hilton's trial, this

claim should be denied.

Hilton's defense team included Ines Suber handling the guilt phase, Robert Friedman

handling the penalty phase, Beatriz (Betty) Fuentes as the mitigation specialist, and Chris EHrich

as the fact investigator. Paula Saunders, Steve Been, Tracy Record, Nicole Jamieson, and

Merribeth Bohanan were attorneys in the office who assisted in various capacities in preparing

the case for trial. (Evid. Hrg. Trans. at 183,275-77, 325).

Robert Friedman is a highly experienced trial and appellate attorney who had nearly 25

years of experience when he was assigned to Hilton's case in February of 2009. (Evid. Hrg.

Trans. at 455, 515). He began as an assistant public defender in West Palm Beach where he tried

12

1593
over 50 cases and briefed over 100 appeals. Since then, he handled Jimmy Ryce cases, including

10-12 Jimmy Ryce jury trials, and second chaired the death penalty trial for Coy Evans, during

which he presented all the expert witness testimony and drafted and argued pretrial motions. (Id.

at 455-57).

Friedman testified that he developed a penalty phase strategy as he worked up the case

with Betty Fuentes, the mitigation specialist. (Evid. Hrg. Trans. at 469-71 ). He had Dr. Joseph

Wu, a neuropsychiatrist, do a PET scan on Hilton and develop an analysis of the traumatic brain

injury he suffered as a child when he was hit by a falling bed frame. He also had Dr. Charles

Golden, a neuropsychologist, conduct a neuropsychological analysis and testing that coincided

with the brain injury evidence, and had Dr. Abbey Strauss, a psychopharmacologist do an

analysis as well. ffiL at 470-71; R. 38:97-99; 39:158-59, 214-15). Based on the mitigation that

developed, Friedman's focus was on the two mental health mitigators available under Florida

law: the defendant's capacity to appreciate the criminality of his conduct or conform his conduct

to the law was substantially impaired, and the defendant was under the influence of extreme

emotional or psychological disturbance. As these were the weightiest mitigators, he believed it

important to focus on establishing them at trial. ffiL at 485-86). His strategy was to show that

because of Hilton's childhood brain injury and lifelong history of suffering emotional abuse, the

overprescribed Ritalin coupled with Effexor he was consuming acted as "gasoline on the fire."

(Id. at 471).

(a) Failure to conduct a competent mitigation investigation

As Hilton describes, (Motion at 5-23), the defense team conducted a lengthy mitigation

investigation before trial. While Hilton alleges briefly that counsel "never did a

13

1594
multigenerational review of mental illness in Mr. Hilton's family" and "failed to investigate Mr.

Hilton's time in the military and the effect this had on him mentally," (Motion at 28) (internal

citations omitted) the evidence developed at the evidentiary hearing demonstrates that the

defense team conducted a competent and thorough investigation. Fuentes, the defense team's

mitigation specialist, conducted the mitigation investigation for Hilton's case. (Evid. Hrg. Trans.

at 185-86). She was employed with the office as an investigator since 1997 and later because a

mitigation specialist for the office around 2001. As a mitigation specialist, she attended Florida

and national death penalty training seminars. (Id. at 180-82). Fuentes was the mitigation

specialist for Hilton's case from its origination and began conducting the mitigation investigation

immediately after his arrest in 2008. (Id. at 184). She testified that she investigated and

interviewed over 300 mitigation witnesses and created memoranda documenting what the

witnesses told her. (Id. at 186-87). She also met with Hilton at the jail for two to three hours per

visit every week during the three years his case was awaiting trial. @at 257).

Hilton did not present any evidence demonstrating that his defense team failed to

investigate the mitigation in his case, including information about his military history and his

family's mental health history. Fuentes' investigation uncovered information about Hilton's

military history, and the changes in his mental health during that time. Friedman testified that he

knew about Hilton's military service and presented that evidence to the jury. He admitted

Hilton's military records as an exhibit at trial and had his expert witnesses testify about Hilton's

prior psychiatric episodes and his mental decline during and after his military service. (Evid.

Hrg. Trans. at 496-97, 525-26; R. 16: disc 7). In fact, Dr. Wu testified in detail about Hilton's

military service in an elite regiment. Dr. Wu explained that Hilton began to "decompensate"

14

1595
during his service, started having auditory hallucinations, was hospitalized for several weeks,

and was ultimately discharged for being unfit. (R. 38: 124-25). Dr. Strauss also testified in detail

about Hilton's military service, his psychiatric hospitalization and treatment, and the decline of

his mental health during that time. (R. 39:242-43).

While Hilton presented the testimony of Dr. Camp at the evidentiary hearing to discuss

Hilton's military service and his mental health during his military service, the information Dr.

Camp discussed was the same information the jury heard at trial. (Evid. Hrg. Trans. at 143-77).

Dr. Camp's testimony was based entirely on Hilton's military records, some of which Friedman

admitted at trial. (Id. at 172; R. 16; disc 7). Dr. Camp's conclusions echoed the testimony of Dr.

Wu and Dr. Strauss, that Hilton's military records reflected the possibility he was suffering from

serious mental illness during his military service. (Evid. Hrg. Trans. at 170). Ultimately, Dr.

Camp's testimony did not contain any material information that was previously unknown or

otherwise not presented to Hilton's jury.

Fuentes also developed mitigation regarding traumatic aspects of Hilton's past, including

that Hilton's father, William Hilton, was killed by his wife, that Hilton was sexually abused by

an attorney who had represented him, and that he suffered a serious head injury as a child. (Evid.

Hrg. Trans. at 260-62). While Hilton accuses his defense team of failing to investigate his

family's mental health history during the mitigation investigation, (Motion at 28), he failed to

present any evidence to support this claim. While Hilton did submit sworn statements from

Phillip Kitchen and Elaine Leming discussing their secondhand knowledge of William Hilton's

possible use of drugs or alcohol and violent behavior, Hilton failed to call either of them to

testify at the evidentiary hearing. Additionally, neither of their statements reflect allegations that

15

1596
William Hilton abused drugs or alcohol or suffered from mental illness. Both sworn statements

would have been inadmissible at trial, and the pertinent portions of their statements, if presented

through their live testimony, would have been subject to valid hearsay objections because their

statements merely recounted what other people told them. §§ 90.80l(!)(c), 90.803, Fla. Stat.

(2018). Finally, both Fuentes and Friedman testified that they were aware of William Hilton's

background and the circumstances of his death, and Friedman explained that he provided that

information to the experts working on Hilton's case. (Evid. Hrg. Trans. at 262, 492-93).

Even if Hilton's team was deficient in failing to investigate evidence of familial mental

health issues and Hilton's military service, Hilton was not prejudiced by it. Overwhelming

evidence supported the six weighty aggravators in this case, including HAC and CCP, including

Hilton's numerous chilling statements and his prior conviction for the factually similar

kidnapping and murder of Meredith Emerson. These aggravators would not have been

outweighed by the mitigation evidence Hilton says should have been investigated. Hilton failed

to provide this Court with evidence of any information that Hilton's defense team failed to

uncover during their investigation. Hilton cannot demonstrate that his defense team conducted a

deficient investigation or that he was prejudiced thereby.

(b) Failure to present available mitigation

Hilton claims that trial counsel was ineffective for failing to present available mitigation

evidence and witnesses. Hilton appears to argue that trial counsel should have presented

whatever mitigation they had, regardless of usefulness or consequences. (Motion at 25).

Although Hilton points to specific witnesses that he believes should have testified at trial, most

of the information that Hilton claims should have been presented through these witnesses was

16

1597
presented at trial through other means. Furthermore, Friedman's decisions regarding what

evidence he would present was based on an informed and reasonable strategy.

First, Hilton alleges that trial counsel generally failed to present evidence on Hilton's

background, and specifically on the following topics: I) multigenerational mental illness in

Hilton's family; 2 2) Hilton's mother alternately smothering him and neglecting him; 3) repeated

attempts at self-mutilation and/or suicide; 4) childhood illnesses that affected Hilton's mind; 5)

Hilton's adult battle with substance abuse; and 6) Hilton's mental impairment and deterioration

that made him vulnerable to the effects of Ritalin overdose. (Motion at 24, 28). Trial counsel was

not deficient in presenting evidence on these topics. The record demonstrates that evidence on

most of these topics was presented at trial. Dr. Wu, Dr. Strauss, and multiple lay witnesses

testified at trial about Hilton's damaged relationship with his mother, and the way that she

eventually abandoned him. (R. 38:133-34; 39:236-39, 244-46, 390-404; 41:409-512). Dr.

Charles Golden discussed how Hilton had rheumatic fever as a child and such illnesses can have

an impact on the frontal areas of the brain. (R. 39:191-92). Dr. Alexander Morton and Dr. Wu

both testified about Hilton's mental condition and his vulnerability to Ritalin overdose. (R.

38:126-35; 40:299-356). Victorine Rowe presented lay witness testimony on Hilton's childhood

head injury. (R. 39:379-89).

Hilton argues that presenting additional mitigation would have given more context to the

claim that Ritalin affected Hilton's behavior, however, Friedman presented all the helpful

mitigation they had available. At the evidentiary hearing, Friedman testified that he wanted to

stay away from presenting some of the evidence on Hilton's drug use because of the negative

effect it might have had on the jury. (Evid. Hrg. Trans. at 498, 534). Cleo Debag, Hilton's

2
A discussion of evidence of multi generational mental illness in Hilton's family is contained, supra, page 14-17.
17

1598
mother, provided information on a single isolated incident of Hilton attempting to harm himself

as a child during a recorded interview with law enforcement. (R. 14:2750-51). The team knew

about this information and Fuentes documented it in an internal memorandum that Hilton

submitted at the evidentiary hearing, (Defense Exhibit I-A), but no other evidence of self-

harming behavior was provided by Hilton at the evidentiary hearing. Friedman explained in his

testimony that he provided all the information they had from Cleo Debag to their expert

witnesses to inform their opinions. (Evid. Hrg. Trans. at 470, 492). Friedman testified that he

read Fuentes' memos on her conversations with all the potential witnesses and then he contacted

those witnesses as well. Many of them were unwilling to testify (Id. at 481-82, 484). Ultimately,

he provided all the mitigation information to their experts and called all the helpful lay witnesses

who were willing to testify. (Evid. Hrg. Trans. 11/01/18 at 481-87, 537, 560-61). Friedman's

method of handling the background information on Hilton was reasonable and there is no

requirement that he call a witness to testify to every little fact in Hilton's background. He made

sure all the background and mitigation information that was collected was provided to the

experts and he trusted them to use the information meaningfully.

Importantly, other than the Cleo Debag interview memorandum, Hilton failed to present

any admissible witnesses or exhibits at the evidentiary hearing that addressed these topics.

Therefore, Hilton cannot point to any admissible evidence that was not utilized by the defense

team. What little of these topics was not presented to the jury was trivial in light of the evidence

presented by both the State and the defense team, and it would have had no impact on the

sentence in Hilton's case.

18

1599
 To the extent that Hilton relies on Cunningham v. Zant, 928 F.2d 1006 (lith Cir. 1991)

and Parker v. State, 3 So. 3d 974 (Fla. 2009), to argue that counsel should have indiscriminately

presented whatever mitigation they had, this argument ignores the obligation of counsel to

exercise reasonable judgement. It is entirely proper for counsel to withhold presenting available

evidence or witnesses if the decision to do so is reasonable and strategic. In Parker, the trial

attorney was found ineffective primarily because he did not properly investigate the mitigation in

the case, having only interviewed the defendant, his mother, and his ex-wife. 3 So. 3d at 984.

Similarly, in Cunningham, the trial attorney was found ineffective for failing to properly

investigate mitigation, and for the lack of a tactical reason for excluding the mitigation they

possessed. 928 F.2d 1006, 1018 (lith Cir. 1991). Conversely, in Hannon v. State, 941 So. 2d

1109, 1124 (Fla. 2006), the Florida Supreme Court had held that an attorney is not ineffective for

declining to present available mitigation when he had a reasonable strategic basis for

withholding it. Counsel's decision regarding what mitigation to present was a reasonable

strategic decision under the law.

Second, Hilton claims his defense team was deficient for not calling enough Jay

witnesses. (Motion at 5, 23, 29). Hilton failed to present any of the Jay witnesses that he now

claims should have been presented, thus he is unable to show that these witnesses were available

and willing to testify under oath in court. To establish ineffective assistance for failing to call

certain witnesses, Hilton must demonstrate that those witnesses were available to testify at trial

and that their testimony would have been admissible. Guardado v. State, 176 So. 3d 886 (Fla.

2015) (holding, "[trial] court properly held that Guardado did not demonstrate deficiency or

prejudice as to [failure to call] the first four witnesses because he did not provide any testimony

19

1600
from these witnesses at the evidentiary hearing"); Booker v. State, 969 So. 2d 186, 196 (Fla.

2007) (citing Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004). To demonstrate that these lay

witnesses were, in fact, available and willing to testify at Hilton's trial, Hilton should have

presented those witnesses to testify at the evidentiary hearing. His failure to do so is fatal to his

claim. Lebron v. State, 135 So. 3d 1040, 1055-56 (Fla. 2014) (claim that counsel failed to present

witness at trial denied when Lebron did not present that witness at the evidentiary hearing).

Even if Hilton had presented these lay witnesses at the evidentiary hearing, his claim

remains meritless. To the extent that Hilton claims the defense team should have called all of

Fuentes' "essential witnesses" at the penalty phase, Friedman had a reasonable strategic basis for

choosing not to call them. At the evidentiary hearing, Fuentes discussed a list she compiled of 34

"essential witnesses" 3 that she believed should have been called to testify at trial. (Evid. Hrg.

Trans. 10/30/18 at 189-93; State Exhibit 2). Saunders testified that while "humanizing" Hilton

before the jury was important, she also agreed that many of the lay witnesses in the case were not

persuasive 4 (State Exhibit 1). Of those lay witnesses, Friedman called or presented video

testimony of Thomas Perchoux, Victorine Rowe, Cleo Debag, Maria Castelli, Sandy Herman

3 Fuentes' "essential witnesses" were Thomas Perchoux, Victorine Rowe, Cleo Debag, Roy Cave, Sandy Herman,
Beverly Lehmann Hilton, Maria Castelli, Juan Castelli, Leroy Pruitt, Bob Priester, Stephanie Duggan, Brenda
Champagne, Dr. Harry Deicher, John Tabor, Jennie Johnson, Shawn Stewart, Ned Dwight Coleman, Pam Burnett,
Ray Lung, Norm Collins, Officer Kim/King, "laundromat ladies," Dr. Bateman, Maria Linarte, Chad Smallwood,
Justin Wight, Karen Stansbury, Scott Gill, Mildred Stevens, Shaun Faukner, Casey Smith, Robert Schmidt, Tom
Roger, Nancy Linkesh, and "jail stall."
4
To the extent that Ms. Saunders testified that humanizing Hilton was especially important because he was
overmedicated at trial and looked like «a zombie," and could not communicate, the other testimony in the case
refutes this. Ms. Suber testified that Hilton was somewhat sedated, but she was always able to have good
communication with him. Before being medicated, Hilton was manic and unable to have rational conversations.
(Evid. Hrg. Trans. at 127-28). Ms. Friedman testified that Hilton was always able to effectively communicate,
despite being medicated. (!d. at 521 ).
20

1601
Carr, Roy Cave, Officer Steve Kim, 5 and Jin Hee Lee. (R. 39:379, 390; 41:409, 506, 512, 518,

530, 554). He also called Scott Gillespie, Stefanie Durham, and Officer Mary Pat King. (R.

41:523, 539, 546).

At the evidentiary hearing, Friedman was able to recall specific strategic reasons for

choosing not to call several of the witnesses on Fuentes' list. (Evid. Hrg. Trans. at 528-543). For

instance, he chose not to call Dr. Deicher, the physician who overprescribed Ritalin to Hilton,

because Dr. Deicher thought Hilton was dangerous and he said he was afraid of him. Friedman

believed that testimony would be very harrnful if it came out at trial, so he chose to present

testimony about Dr. Deicher's errors in treating Hilton though expert witnesses and by

submitting exhibits of Dr. Deicher's medical board disciplinary proceedings. (Id. at 482-83,

542). Although Fuentes was very critical of Friedman for choosing not to call Dr. Deicher as a

witness, she confirmed in her testimony that Dr. Deicher told her he was afraid of Hilton. CJ.i at
258). Similarly, Friedman chose not to call John Tabor, Hilton's forrner employer, because

Tabor "hated" Hilton and was a very hostile witness. He did not think having an openly hostile

witness on the stand was wise. CJ.i I 1/01/!8 at 485-86, 556). Instead, Friedman chose to give
Tabor's deposition to his expert witnesses and let them discuss Tabor's accounts of Hilton's

behavior in their testimony. (R. 39:240).

Friedman explained that he could not independently recall why he did not call all of

Fuentes' "essential witnesses," but he had a standard practice of calling witnesses who were

helpful and not calling witnesses who were going to present damaging testimony or present as a

5 The testimony of Officer Steve Kim was transcribed at trial as an Officer Steve King at trial but appears to be the
same person as the Officer Kim listed on Fuentes' "essential witnesses" list. (R 41:529M30; Evid. Hrg. Trans. at
536-37; Defense Exhibit I-A, Officer Steve Kim Memorandum).
21

1602
hostile witness. He remembered several potentially helpful witnesses who ultimately were

unwilling to testify at trial in person or remotely. (Evid. Hrg. Trans. at 481-87, 537, 560-61).

Third, Hilton's claim that his defense team unreasonably chose to "streamline" his

mitigation phase and only present "bare bones" mitigation due to a preference for expert

witnesses over lay witnesses is meritless. (Motion at 5-6). Counsel is not ineffective for declining

to present cumulative testimony, Booker v. State, 969 So. 2d 186, 198-99 (Fla. 2007), or

otherwise declining to present witnesses based on a reasonable trial strategy. Johnston v. State,

63 So. 3d 730, 740 (Fla. 2011). Friedman explained that he did not "streamline" the penalty

phase presentation of evidence but rather, tried to present the best evidence that would make the

greatest impact, given the facts of Hilton's case. (Evid. Hrg. Trans. at 485-86). He also explained

that he did not prefer expert witnesses over lay witnesses, (Id. at 524-25), and he made his

decisions about who to call based on who would be a good witness and who was willing to

testify. (Id. at 481-87, 537, 560-61). He testified that some of the evidence that could have been

presented, such as Hilton practice of hoarding his dog's toys and keeping dog skeletons and dog

fur was "creepy," and would not have been helpful. (Id. at 503). He did not take his decisions

about which witnesses to call lightly; he consulted other attorneys on his team and made

reasonable strategic decisions about who to call. (Id. at 523; State Exhibit 1). Finally, Friedman

recognizes the importance in developing Hilton's background and family and military history for

the jury, and he believes he did so in this case with the witnesses he had. ffiL at 524-26).
Fourth, Hilton claims that the defense team did not make the best use of the lay witnesses

they did call, specifically Roy Cave and Sandy Herman Carr. He claims that Cave could have

testified to Hilton suffering sexual abuse from an attorney that represented him and to Hilton's

22

1603
awkwardness and bizarre behavior as a teenager. He claims Carr also could have testified about

Hilton suffering sexual abuse and to an inappropriate conversation Hilton had with her many

years later. (Motion at 30-31). Again, while Hilton submitted written statements from Roy Cave

and Sandy Herman Carr to support his claim, Hilton failed to call these witnesses to testify at the

evidentiary hearing to demonstrate that they were willing and available to testify in court on

these subjects. His failure to call these witnesses is fatal to his claim. Booker, 969 So. 2d at 196;

Lebron, 135 So. 3d at 1055-56. Furthermore, the defense team made every reasonable effort to

glean from these witnesses all the relevant information they knew about Hilton, and they cannot

be faulted for a witness's failure to be forthcoming. To the extent that the defense team knew

about some of this information, Friedman made reasonable strategic decisions about how to use

the information at triaL

Fuentes confirmed in her testimony that the defense team had no idea that Cave knew

anything about Hilton being sexually abused because he never told them about it (Evid. Hrg.

Trans. at 263). Similarly, Fuentes' memo on her interview of Carr reflects a long and detailed

conversation, during which Carr also never mentioned knowing about Hilton being sexually

abused. (Defense Exhibit I-A). It is not reasonable to hold the defense team responsible for these

witnesses' failures to be forthcoming. Moreover, the failure to have Cave or Carr testify about

the sexual abuse Hilton suffered was inconsequential because that information was presented to

the jury. Friedman provided all the information they did have, including information about

Hilton being sexually abused, to their expert witnesses, and much of that information was

presented to the jury through expert testimony. (Evid. Hrg. Trans. at 496). He explained that he

was reluctant to Jean heavily on the sexual abuse information because there was information that

23

1604
Hilton's sexual activity with the lawyer could have been in exchange for drugs. (l.QJ.

Presumably, such information would have been harmful if it had been presented to the jury.

Friedman also explained that the objective of calling Carr was to "normalize" Hilton,

(Evid. Hrg. Trans. at 501), so to have her testify to Hilton's bizarre behavior or inappropriate

phone calls with her would have undermined the reason for calling her as a witness. Finally, even

if these witnesses had been mishandled, the jury heard most of the information that Hilton claims

these witnesses should have testified to. The minor points that were never presented to the jury

are trivial and would not have impacted the outcome of Hilton's case.

Fifth, Hilton claims that the defense team failed to present a mitigation PowerPoint

presentation 6 during the penalty phase which would have been helpful to humanizing him before

the jury. To the extent that Hilton argues that counsel was unable to admit the PowerPoint

presentation either because they did not call fact witnesses to authenticate it or because Fuentes

quit in the middle of trial because she disagreed with penalty phase strategy, these arguments are

meritless.

Counsel is not liable for the misconduct of an expert. The Florida Supreme Court has

rejected claims that trial counsel was ineffective for the misconduct or deficiency of an expert.

Guardado, 176 So. 3d at 895-96 (rejecting claim that counsel was ineffective for failing to

investigate mitigation because expert witness's deficient report did not include it); Dufour v.

State, 905 So.2d 42, 56 (Fla.2005) (counsel is not deficient for relying on the work of an expert

that he has no reason to doubt). The Sixth Amendment does not guarantee the effective

assistance of an expert like it does the effective assistance of counseL Walls v. State, 926 So. 2d

1156 (Fla. 2006) (relying on the holding in Wilson v. Greene, 155 F.3d 396, 401 (4th Cir. 1998),

6
This PowerPoint presentation is referred to as a "video" in Saunders' testimony. (State Exhibit 1).
24

1605
that the Sixth Amendment does not guarantee effective assistance of an expert); Silgay v. Peters,

905 F.2d 986, 1013 (7th Cir.). Similarly, such a claim is not cognizable under the Due Process

Clause. Trotter v. State, 932 So. 2d 1045, 1051-52 (Fla. 2006); Hodges v. State, 885 So. 2d 338,

352 (Fla. 2004).

Here, Fuentes was acting in an expert role as the mitigation specialist for the team.

Fuentes was overcome with emotion when testifying at the evidentiary hearing that she disagreed

with Friedman's penalty phase strategy. On the morning the penalty phase of the trial was

scheduled to begin, Fuentes sent an email to Nancy Daniels informing her that she refused to

testify at the trial as planned or assist with the case any further. (Evid. Hrg. Trans. at 249-51 ).

Through tears, she explained that she did this to ensure that the case would be reversed on

appeal. She believed if she testified, the Florida Supreme Court would not reverse the case, so

she refused to testify. (Id. 250-51 ).

The actions Fuentes admitted to at the evidentiary hearing are a shocking departure from

the conduct that one would be expected of a mitigation specialist. This conduct is so far outside

the realm of professional conduct it would not be reasonable for any of the attorneys on the team

to anticipate that it would occur. Guardado, 176 So. 3d at 895-96; Dufour 905 So.2d at 56.

The team responded reasonably to Fuentes' conduct. When Fuentes quit, the team

instructed their fact investigator, Chris EUrich, to finish the PowerPoint presentation of Hilton's

life history and prepare himself to testifY during the penalty phase regarding the mitigation,

whlch he did. (Evid. Hrg. Trans. at 336-37). While the PowerPoint presentation ultimately was

not admitted at trial, it was because the trial court sustained the State's relevance objections 7 to

many of the photos in the PowerPoint presentation. (R 40:354-76; Evid. Hrg. Trans. at 488-90).

7
§ 90.401, Fla. Stat (2011).
25

1606
Unlike an objection based on other predicates, Friedman could not call a witness to cure the

State's objections. Even if Friedman had called every lay witness Fuentes talked to it would not

have changed the court's rulings as to relevance. Ultimately, Friedman decided, in consultation

with Suber and Saunders, that it was better not to use the PowerPoint presentation at all rather

than to use a "piecemeal" version of it. (Evid. Hrg. Trans. at 489). This was a reasonable

strategic decision that trial counsel should not be faulted for making.

Additionally, Hilton was not prejudiced by the exclusion of the PowerPoint presentation.

The PowerPoint contained photographic representations of things discussed by witnesses at trial,

including photos of Hilton's relatives, a photo of a bed like the one that caused Hilton's head

injury, and copies of marriage and birth certificates. (R. 16: disc 7). If this PowerPoint had been

presented to the jury it would not have outweighed the significant evidence in aggravation.

Hilton is not prejudiced by trial counsel's conduct in the penalty phase. Hilton argues that

trial counsel could have somehow prevented the State from introducing their rebuttal evidence of

Hilton's prior bad conduct if they had presented additional mitigation. (Motion at 32). However,

presenting additional background witnesses or evidence would not have cured the State's basis to

present rebuttal evidence. Hilton notes that the basis for introducing Dr. Pritchard's rebuttal

testimony was in response to the penalty phase theme that Ritalin changed Hilton's behavior.

(Motion at 32). But as Friedman explained, the theme they presented was the best option given

the evidence they had. (Evid. Hrg. Trans. at 468, 470-71). Even if trial counsel had presented the

additional mitigation that Hilton identifies, the primary theme of the penalty phase would have

remained the same and the State would have still been permitted to introduce its rebuttal

evidence. Moreover, the Florida Supreme Court had declined to find counsel ineffective when a

26

1607
reasonable theme opens the door to rebuttal evidence. Rigterink v. State, 193 So. 3d 846, 877

(Fla. 2016).

Hilton claims he is prejudiced by the trial court's rulings rejecting the two mental health

mitigators available under Florida Jaw: that the defendant's capacity to appreciate the criminality

of his conduct or conform his conduct to the law was substantially impaired, and the defendant

was under the influence of extreme emotional or psychological disturbance. (Motion at 32). The

record refutes this claim. The trial court only rejected one of the mental health mitigators; the

trial court found that the defense proved that the defendant was under the influence of extreme

emotional or psychological disturbance, and gave it some weight. (R. 12:2357-58). Additionally,

the trial court's rulings rejecting the other mitigator was not based on Friedman's failure to

present more evidence, it was based entirely on a finding that the State's expert witness, Dr.

Pritchard was more credible than the defense expert testimony. (R. 12:2357).

Hilton is unable to demonstrate that the outcome of his case would have been different if

counsel had presented the mitigation as he now contends he should have. Overwhelming

evidence supported the six weighty aggravators in this case, including HAC and CCP. Evidence

in aggravation included Hilton's numerous chilling, incriminating statements and his prior

conviction of the factually similar kidnapping and murder of Meredith Emerson. These

aggravators would not have been outweighed by the mitigation Hilton says should have been

presented. Hilton failed to present any of the witnesses he claims were available and willing to

testify at trial. Hilton also failed to produce any admissible evidence that should have been

presented to the jury and was not. Hilton cannot demonstrate that his defense team conducted a

deficient investigation or that he was prejudiced thereby. This claim should be denied.

27

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 (c) Failure to prepare and effectively use expert witnesses

Hilton claims that trial counsel was ineffective in preparing and effectively using expert

witnesses during the penalty phase of Hilton's triaL Specifically, he claims that trial counsel did

not provide their experts with all the information they needed to fully inform expert opinions;

they did not prepare Dr. Wu to avoid talking about Hilton's involvement in the Deadly Run

movie, which had been excluded under a motion in limine; they did not effectively mitigate the

damage after Dr. Wu brought up the Deadly Run movie; they hired Dr. Strauss; and they failed

to confirm that Hilton had multiple sclerosis. (Motion at 25-31). The trial record and the

testimony at the evidentiary hearing demonstrate that trial counsel was not deficient in their

handling of expert witnesses and that Hilton was not prejudiced by their actions.

First, Hilton claims that the defense team did not properly inform their experts by

providing them all the information they needed, specifically multigenerational mental and

physical health information on Hilton's family and "clear evidence of [Hilton's] mental illness,"

such as his deceased dog's skeleton. (Motion at 29). This claim fails because Hilton was unable

to present any new material evidence or information at the evidentiary hearing that was available

at the time of trial that was not presented to the experts. As discussed, supra, page 14-17, the

defense team conducted a thorough mitigation investigation and Hilton has failed to produce any

new material information that they failed to uncover. Friedman testified that the information they

did have was always provided to his experts and he would regularly update his experts when new

information was developed. (Evid. Hrg. Trans. at 470-71, 483, 486, 491-94, 497, 502-03, 539-

41 ). Friedman also testified that he did not want some of the evidence of mental illness, such as

Hilton hoarding his dog's toys or skeletons, to come out at trial because this evidence was

28

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"creepy." (Id. at 503). The record reflects that the experts were provided the evidence of Hilton's

mental illness because they testified about it at trial. (R. 38:124-35, 144; 39:169, 190-94, 199-

202; 40:236, 239-40, 299-356). Finally, Hilton did not present Dr. Wu, Dr. Morton, Dr. Strauss,

Dr. Golden, or any other expert, to testify that there was any information available at the time of

trial that was material to their opinions but was not provided to them. Hilton failed entirely to

present evidence to support this claim.

Second, Hilton claims that the defense team failed to properly prepare Dr. Wu to testify,

and as a result, he discussed Hilton's involvement in the Deadly Run movie after this

information had been excluded subject to a motion in limine. (Motion at 29). Friedman's

testimony at the evidentiary hearing demonstrates that he properly prepared Dr. Wu and the other

three experts to testify and he acted reasonably in response to Dr. Wu's mistake. Friedman

testified that he met with all the experts together before trial and would have informed them not

to talk about the Deadly Run movie while preparing them to testify at trial. (Evid. Hrg. Trans. at

546-47). He pointed out that his admonition was sufficient for the other three experts and he was

"dumbfounded" when Dr. Wu brought it up, unprompted, during his testimony. (Id. at 546).

Indeed, the record reflects that Dr. Wu's mention of the Deadly Run movie was nonresponsive to

the question Friedman asked him. Friedman asked him about a correlation between Ritalin and

the frontal lobe of Hilton's brain. During his longwinded response, Dr. Wu mentioned Hilton's

claim of involvement in the Deadly Run movie as an example of grandiose delusions. (R.

38: 127-28). It is entirely unreasonable to expect counsel to anticipate that a mention of the

Deadly Run movie would come out in response to the question he asked.

29

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 Friedman also responded to Dr. Wu's mistake reasonably. It would certainly look bad in

front of the jury for Friedman to object to his own expert witness. Rather, when the State's

expert, Dr. Pritchard brought up the Deadly Run movie, Friedman objected repeatedly, and those

objections were overruled. (R. 41:592, 42:617-28). Hilton claims that Friedman was ineffective

for not calling Samuel Rael, the purported director of the Deadly Run movie, to testify that

Hilton was only minimally involved in the movie. (Motion at 29-30). However, Hilton failed to

present Samuel Rael as a witness at the evidentiary hearing to demonstrate what his testimony

would have been if Friedman had called him as a trial witness. In so doing, Hilton fails to

demonstrate that Rael was available and willing to testify or that he had anything helpful to say.

Booker, 969 So. 2d at 196; Lebron 135 So. 3d at 1055-56. Friedman and the defense team were

not deficient for Dr. Wu's nonresponsive comment about the Deadly Run movie. Considering

the overwhelming evidence in aggravation and the six weighty aggravators in this case, the

mention of the Deadly Run movie would have had no impact on the outcome of Hilton's case.

Third, Hilton claims that Friedman was ineffective for calling Dr. Strauss as an expert

witness because Dr. Strauss had been previously disciplined by a medical board. Friedman had a

reasonable strategic basis for calling Dr. Strauss, and Hilton was not prejudiced by his choice.

Friedman testified at the evidentiary hearing that he used Dr. Strauss because he had worked

with him in the past and gotten successful results in his cases with Dr. Strauss. (Evid. Hrg. Trans.

at 545). He thought Dr. Strauss was particularly good for Hilton's case because he was a

psychiatrist with a background in psychopharmacology. (!4). Suber criticized Friedman for

using Dr. Strauss instead of Dr. McLaren, who she had used in the past. However, Friedman

testified that he did not want to use Dr. McLaren because he did not trust him and had seen cases

30

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where he thought Dr. McLaren's involvement in the case did harm. Ultimately, Friedman was

able to elicit all the same testimony from Dr. Strauss that he would have been able to elicit from

Dr. McLaren. (JQJ. Hilton failed to present any evidence that Friedman was not fully informed

when he chose Dr. Strauss as an expert on Hilton's case. Friedman's testimony at the evidentiary

hearing reflects a reasonable strategic decision on his part. Furthermore, Hilton has failed to

show how using Dr. Strauss was prejudicial to his case.

Fourth, Hilton claims that trial counsel should have confirmed whether Hilton had

multiple sclerosis and did not. He claims that this information would have assisted the defense,

regardless of the result. (Motion at 31). This claim is meritless because testing Hilton would have

had no impact on the case and would have potentially conflicted with defense expert testimony.

If testing Hilton for multiple sclerosis would have been equally impactful, regardless of the

result, it accomplishes nothing to do the testing. One of the defense experts, Dr. Golden, testified

that he saw no evidence of Hilton having multiple sclerosis and that the symptoms were most

likely a result of severe depression. (R. 39: 191). This testimony accomplishes the same result as

introducing a negative test result for multiple sclerosis; Hilton's incorrect self-diagnosis

demonstrates a potential mental health concern. Precisely the evidence Hilton claims should have

been presented was in fact presented. Moreover, Dr. Golden indicated he thought the symptoms

Hilton associated with multiple sclerosis were symptoms of depression, and it is reasonable for

the defense team to rely on their expert's analysis.

Hilton has failed to demonstrate that his defense team was deficient in its preparation or

execution of the penalty phase of his trial. Hilton has also failed to demonstrate that he was

prejudiced by the defense team's actions. The six weighty aggravators, including CCP and HAC

31

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were supported by overwhelming evidence in aggravation. Hilton made numerous chilling

statements, in which he talked about hunting his victims and dismembering them, his prior

conviction for the factually similar kidnapping and murder of Meredith Emerson was also

introduced. There is no question the outcome of Hilton's penalty phase would remain the same.

Claim 2: Whether Trial Counsel was Ineffective due to Disorganization and

Division, Inconsistent Preparation, Unreasonable Caseloads, and Unreasonable Strategy

(a) Divisiveness of the Defense Team

Hilton alleges that the members of his trial team were divisive and uncooperative,

resulting in ineffective assistance of counsel. (Motion at 34-39). There is no question that there

was some discord within Hilton's trial team, however, the evidence demonstrates it was not to

the severe extent that he alleges. Moreover, while personal conflict and lack of a cooperation is

not ideal, it certainly does not alone establish ineffectiveness; Hilton must allege specific

deficient acts that that there is a reasonable probability that those errors affected the outcome of

his case. Strickland, 466 U.S. at 688-90); Sears, 561 U.S. at 945. Hilton's allegations fall short of

this standard.

Hilton alleges members of his defense team engaged in unprofessional conduct during his

case 8 Many of these allegations center on Suber's conduct, claiming she was very difficult to

work with, would send combative late-night emails to other team members, and was unwilling to

entertain other team member's perspectives on evidence and strategy. While the testimony at the

evidentiary hearing consistently demonstrated that Suber was demanding and very difficult to

work with, this does not constitute ineffective assistance of counsel. As discussed in more detail,

8 Hilton's allegations of Ms. Fuentes' misconduct are discussed fully, supra. Claim I.
32

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infra, every material decision Suber made in Hilton's case was based on reasonable strategy, not

personal feuds, interpersonal conflict, or other non-strategic bases.

Allegations were made by other team members that Suber may have been using

prescriptions for Xanax or Ambien, or consuming alcohol in a way that interfered with work.

Suber explained that she used to have a prescription for Xanax many years ago but does not

believe she was still taking it while working in the capital division. When she did take Xanax, it

was always at home and never at work. (Evid. Hrg. Trans. at 90-91). She also confirmed that she

was not consuming alcohol during Hilton's case because she was too busy for recreation. (.!f!J.

However, Suber was taking Ambien to help her sleep. She consulted a doctor about having

trouble sleeping because she was very stressed out about Hilton's case, as is common for

attorneys handling serious capital cases, and he prescribed her Ambien and told her not to work

more than 18 hours per day. (Id. at 89). Daniels testified that she saw no need to remove Suber

from work and saw no signs of drug or alcohol use. (Id. at 314). She was under the impression

that Suber had a prescription for some type of anxiety medication but did not see an issue with

that. (Id. at 296-97).

Hilton also alleges that Bohanan was unprofessional in intentionally sabotaging the

attorney-client relationship. (Motion at 38). The testimony at the evidentiary hearing

demonstrates that after Fuentes quit, Bohanan, apparently in solidarity with Fuentes, told Hilton

that the defense team was not acting in his best interest. (Evid. Hrg. Trans. at 27-28; State

Exhibit I). Bohannon was removed from the courtroom for her conduct and ultimately was

removed from the case. Saunders believed that the office needed to withdraw based on an ethical

conflict and informed the court in camera. (State Exhibit !). Daniels testified that Thomas

33

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evaluated the situation and talked to everyone involved, and ultimately, the office elected to not

withdraw. (Evid. Hrg. Trans. at 303-04). Friedman also testified that the incident did not rise to

the level that they were obligated to withdraw. (Id. at 551). While Bohanan's conduct is

regrettable and no doubt upset Hilton, there is no evidence that her conduct affected the triaL

Other team members testified that Bohanan's role in the case was minor, so her exit from the

team would have been inconsequentiaL (Id. at 28, 474; State Exhibit 1). Moreover, the office

handled her conduct in a reasonable way by removing her from the courtroom and addressing

any ethical issues arising out of it

The alleged unprofessional conduct did not result in ineffective assistance of counseL

The conduct was not directly related to any legal work that was done in the case. All the

evidence that needed to be presented was, and all of the legal tasks that needed to be performed

were completed. While some level of unprofessional conduct may have existed behind closed

doors, Hilton's team was thorough, they provided adequate representation in court, and made

decisions in his case based on reasonable strategy.

To the extent that Hilton alleges specific instances of ineffective assistance of counsel, he

is not entitled to relief on those allegations. Ines Suber was lead counsel in the guilt phase of

Hilton's triaL Suber was an extremely experienced capital trial attorney. She began work at the

Public Defender's Office in 1997 and estimates she worked on over 100 capital cases. She

oversaw the capital division from 1999 through the completion ofHilton's·case in 201!. (Evid.

Hrg. Trans. at 10 1-02). She was assigned to the case immediately after his arrest in 2008 and

worked to prepare his case for trial during the three years the case was awaiting trial. (Id. at 102-

03). During initial conversations with Hilton and several conversations thereafter, Hilton

34

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expressed a desire to contest guilt and "fight everything" if they couldn't get him a life sentence

plea agreement. (Id. at 68-70, 84, 132-33). The evidence of guilt was overwhelming and there

were no obvious weaknesses to attack in the guilt phase. Because they were unable to secure a

life sentence plea agreement, despite repeated attempts to secure one, and because Hilton wanted

to "fight everything," their strategy was to go to trial and attack whatever weaknesses they could,

object to everything they could, and concede nothing. (lQJ.

First, Hilton alleges that his defense team was not prepared for the guilt or penalty phase

of trial because the team members were not cooperating with each other and team members kept

changing roles or leaving the team. (Motion at 36, 39). Both the trial record ruid the evidence

presented at the evidentiary hearing demonstrate that Hilton's team was extremely prepared

when they began trial.

Hilton's team filed well over 100 pretrial motions, including over two dozen motions to

exclude or limit evidence or argument at trial, most of which were filed well before trial. (R.

Master Index at i-xxxi; 3:521-62; 4:648-59, 1120-32, 1152-91; 7:1274-79; 11:1995-2003, 2046-

47, 2077-83). Suber and several team members spent a full two weeks combing through

innumerable of pieces of physical evidence. (Evid. Hrg. Trans. at 108). They deposed,

interviewed, and investigated approximately 500 State witnesses. (Id. at 66-67, 107, 08, 112-13).

Friedman testified at the evidentiary hearing that they were ready for trial. (Id. at 515). Both

were appointed to Hilton's case well before trial; Suber was appointed to Hilton's case when he

was arrested in Georgia in early 2008, and Friedman testified he was appointed approximately

two years before trial. (Id. 102-03, 505, 515). The fact investigator, Chris Ellrich, and the

mitigation specialist, Betty Fuentes, both conducted exhaustive investigations to assist the

35

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attorneys. (Id. at 54, 60, 62, 109, 186-87, 257). Each of them had sufficient time to prepare. (R.

17:01). Although Suber filed for a 90-day continuance in September 2010, (R. 3:450-54), she

requested the continuance partially to take five weeks of vacation, and so other tean1 members

could go on vacation as well. (Id. at 121-23). The denial of the continuance was not a surprise to

the team, as Suber mentioned in an email following the denial that she expected the trial court to

deny it. (Id. at 123).

While there were numerous changes in team makeup, most of those changes happened

long before trial, except for Bohanan's and Fuentes' exits. Bohanan and Fuentes left the team

during Hilton's trial, but these exits had little impact. The evidentiary hearing testimony from

Thomas, Saunders, and Friedman was consistent that Bohannon did very little in the case,

making her exist inconsequential. (Evid. Hrg. Trans. at 28, 474; State Exhibit 1). Fuentes' exit

was also inconsequential because the bulk of her work was building the mitigation investigation,

which was completed before trial, and EHrich was able to step in and finish what little work that

Fuentes had not completed before leaving. iliL. at 186-87, 257, 336).
Lack of cooperation did not prevent team members from fully preparing for trial. Suber

testified that whenever discovery came in, each team member got a copy. She would divide her

copies of discovery into files for each witness that she kept in her office, but any team member

was welcome to borrow her files. (Evid. Hrg. Trans. at 124-25). The team had regular group

meetings leading up to trial, during which they discussed strategy and shared infom1ation and

discovery. iliL. at 67-68, 80-81, 133-34, 278, 516-17). Although communication between Suber

and Friedman may have been more strained as trial neared, Friedman's assistant, Julie Hartwein,

testified that they remained in contact about the case leading up to trial. (Id. at 422). The case file

36

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was reportedly disorganized, but it was a very large case with thousands of items of evidence and

hundreds of filings. Some degree of disorganization is to be expected. Ultimately, whatever

disorganization may have existed, the evidence and trial record demonstrate that the team was

fully prepared to respond to the State's evidence at trial.

Saunders testified that she had not reviewed all the discovery before trial and had not

read all the witness's statements before they were called to testify. (State Exhibit 1). However, in

a case this size it would be expected that different attorneys would need to familiarize

themselves with different portions of the evidence, based on their tasks. Thomas testified that the

amount of evidence in the case was extremely voluminous, and it was too much for any one

person to physically review all of it. (Evid. Hrg. Trans. at 35-36).

Any lack of preparation on Saunders' part would have had very little impact at trial. Her

role in the trial was minor, only examining a handful of witnesses,' and she was unable to

identify any specific tasks she was unprepared to handle. (State Exhibit I). Ultimately, the

defense team was prepared for trial and Hilton fails to demonstrate otherwise. Hilton failed to

produce evidence of any specific items of discovery that were overlooked 10 or misplaced,

material tasks that were unfinished, or any specific prejudice he suffered.

Second, Hilton claims that Suber was generally "ill prepared" in defending his case.

Specifically, he claims that she was ineffective for being late to court, making poor use of her

peremptory challenges during jury selection, 11 and objecting to another attorney on her team in

9
Ms. Saunders conducted the cross-examination of Ofc. David Graham, Mark Cecci, and Norman Gunter. (R.
30:667; 31: 840; 33:1 003). Ms. Saunders conducted the direct-examination of Neil Smith and Adina Schwartz. (R.
33:1016; 36:1390).
10 To the extent that Hilton claims the defense team overlooked the statement of correctional officer Caleb Wynn,

that is addressed more fully, infra, page 41-43.

11
Hilton's allegations as 'to error in jury selection are discussed at length, infra. Claim 6.
37

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open court. (Motion at 37). The record and evidentiary hearing testimony refute these claims.

The only time Suber was late to court was for a hearing that another attorney on her team was

handling. (Evid. Hrg. Trans. at 292-93). Suber also explained during her testimony that when she

objected while Friedman was presenting Dr. Wu's testimony, she was trying to tell Friedman to

object to something the State orthe witness had done. (!fL. at 116-17).

Friedman and Saunders testified that Suber did not do a perfect job cross-examining the

DNA or tool mark expert at trial and asked open-ended or confusing questions. However, Nancy

Daniels testified that Suber was very experienced in dealing with scientific evidence and had

dealt with many scientific issues prior to Hilton's case. (Evid. Hrg. Trans. at 308). Suber also

testified that she prepared extensively to handle the scientific evidence and was prepared to

cross-examine the DNA and tool marks experts. (Id. at 110-12). The record reflects that the

defense team adequately attacked the scientific evidence. The tool mark evidence was challenged

in a motion in limine and Suber's cross-examinations of both experts were thorough and did not

reflect any material flaws. (R. 11 :24-56; 33:11 01-52; 35: 1274-1350).

Third, Hilton claims that "[t]here was also little communication with Mr. Hilton about the

reality of the case against him." 12 Saunders and Fuentes suggested during their testimony that the

defense team failed to communicate adequately with Hilton regarding evidence and strategy.

(State Exhibit 1; Evid. Hrg. Trans. at 232) However, this suggestion is entirely unfounded and is

refuted by more reliable testimony from other witnesses.

During Suber's testimony, she explained that Hilton either wanted a life sentence plea

agreement, or he wanted an adversarial trial. (Evid. Hrg. Trans. at 69, 72). She said that Hilton

12To the extent that Hilton argues the defense team developed a poor guilt phase and penalty phase strategy, this is
addressed more fully, infra, Claim 3.
38

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made it clear "from the beginning" that he wanted them to force the State to prove everything.

She made sure Hilton understood that there was not much to argue because the evidence of guilt

was overwhelming. (Id. at 69-70). She also explained to him the potential benefits of going to

trial, as well as the option to enter a guilty plea and just try the penalty phase. (Id. at 82-84).

Friedman also discussed strategy with Hilton, who said, "he wasn't giving up anything for

free" and he wanted them to make the State prove the charges. (Evid. Hrg. Trans. at 506-07).

Friedman also discussed penalty phase strategy with Hilton and would introduce Hilton to the

experts they were using. His practice was to keep Hilton up to date on case and evidence

developments. (Id. at 507). Daniels also confirmed that her understanding in the defense team

meetings was that Hilton wanted the team to contest everything at trial. (!A_ at 287). As the lead

attorneys on the case, Friedman and Suber are in the best position to testify to their strategy

discussions with Hilton. Their testimony refutes any allegation that Hilton was not adequately

consulted about evidence and strategies.

While there is no question that there was some disharmony within the defense team,

Hilton has been unable to show how that disharmony resulted in specific deficient acts. Any

impact the defense team's lack of cooperation may have had on the case would not have changed

the outcome of Hilton's trial. The case included voluminous evidence of guilt, including the

victim's DNA on items Hilton possessed, tool mark evidence matching the cuts in the victim's

car tires to Hilton's bayonet, and Hilton's own chilling and incriminating statements. The six

weighty aggravators in the case were supported by overwhelming evidence as welL The defense

team's level of cooperation would have had no impact on the outcome of Hilton's case.

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 (b) Excessive Workload

Hilton submits that the defense team was working under an excessive caseload and did

not spend as much time on Hilton's case as they needed to. (Motion at 40). Specifically, he

alleges the defense team did not have time to interview all the witnesses and review all the

evidence in the case, including the correctional officer's report documenting Hilton's confession

to another inmate. The only specific error that Hilton alleges is that the defense team overlooked

correctional officer Caleb Wynn's report in the evidence and was unprepared to address his

testimony at trial. (Motion at 4 I). This claim is meritless and should be denied.

Officer Wynn is a correctional officer who was called to testify at trial about

incriminating statements he heard Hilton make while in jail. (R. 34: 1238). The record reflects

that during opening statement, the State referenced the substance of Officer Wynn's testimony,

and Suber objected, stating she was not aware of a listed witness that would present such

testimony. While the State had provided Officer Wynn's statement to the defense among

thousands of other pages of discovery, his name was accidentally not included on the witness

list. (R. 24:44-46). Suber confirmed during the evidentiary hearing that his name jumped out at

her because his name was the only one she did not recognize of the 100 other witnesses the State

listed at the beginning of trial. She was unfamiliar with Officer Wynn only because he had not

been properly disclosed to the defense. (Evid. Hrg. Trans. I I I- I 3). When the witness was later

presented to testify, she objected again, and the court provided her the remedy of delaying the

witness's testimony and giving Suber an opportunity to talk to the witness. Suber elected to talk

to the witness instead of setting a deposition because he answered all her questions. (Id. at I 13-

14).

40

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 Suber's handling of Officer Wynn's testimony was effective and did not reflect a lack of

preparation. It is not reasonable to expect Suber to know about a witness that was not properly

disclosed to her. Suber raised valid objections regarding Officer Wynn's testimony and

succeeded in excluding a damaging portion of his testimony that he overheard Hilton say he was

"very selective" of his victims. (R. 34:1 237). On cross-examination, Suber questioned Officer

Wynn about his report, gaining a concession from him that every detail he testified to on direct

was not in the reports he drafted, and that he never included the victim's name when

documenting Hilton's statements. (R. 34:1250-51; 1254). Wynn also admitted that he did not

document anywhere on his daily logs that Hilton and the other inmate spoke together on the

dates he claimed Hilton's admissions occurred. (R. 34: 1259-60). These facts demonstrate that

trial counsel was properly prepared to address Officer Wynn's testimony, and was not deficient

in preparing Hilton's defense.

Any deficiency in failing to prepare for Officer Wynn's testimony did not prejudice

Hilton. Suber testified that if she had known about this witness before trial, she would have gone

to the jail to look for evidence in the jail layout and audio equipment to attack the likelihood that

Officer Wynn overheard Hilton's statements. (Evid. Hrg. Trans. 10/30/18 at 114-15). With the

recess that the judge afforded her, Suber was able to go to the jail and attempt to conduct that

investigation, but the jail did not grant their request for access because it would require vacating

the detention area. (Id. at 115). This outcome would remain the same even if Suber had known

about the witness sooner. Additionally, Officer Wynn's testimony was not the only evidence

regarding Hilton's incriminating statements. The State presented audio recordings of Hilton's

multiple incriminating statements to law enforcement officers, including that he had not started

41

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killing before September and his military training taught him to disassociate from killing people.

(R. 34:1 180, 1184, 1196-1203). As such, if Suber had known about Officer Wynn's testimony

sooner, it would have had no impact on the evidence that was admitted or the outcome of the

trial.

Furthermore, there is no support for the claim that Hilton's defense team was

overworked. The record reflects that there were nearly thirty-six months between the filing of the

complaint (February 28, 2008) and the start of jury selection (January 31, 2011). (R. 1:39;

17:01). The defense team was able to accomplish an enormous amount of work in Hilton's case.

At the evidentiary hearing, Suber confirmed that the team deposed or interviewed almost 500

State witnesses. They spent two weeks at the evidence hold examining all the items of physical

evidence in the case. (Evid. Hrg. Trans. at 107-08). Furthermore, they filed well over 100 pretrial

motions, including over two dozen motions to exclude or limit evidence or argument at trial, and

held hearings on a number of those motions. (R. Master Index at i-xxxi; 3:521-62; 4:648-59,

1120-32, 1152-91; 7:1274-79; 11:1995-2003,2046-47, 2077-83).

The Public Defender's Office also made every effort to accommodate the workload of

Hilton's defense team. The offtce reassigned approximately five of Suber's cases, including

Angela Prim, Rodrizgus Richardson, and Earl Brundidge. (Evid. Hrg. Trans. at 105-07). Daniels

also accommodated all of Suber's and Friedman's requests for resources. (.lJL 109-10, 514-15).

Thomas and Daniels both agreed in their testimony that the office dedicated enormous resources

to the Hilton case and made every effort to provide the defense team what they needed. (Id. 34-

35, 308).

42

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 Even if Hilton were able to demonstrate that his defense team was overworked,

Strickland claims require more than just a showing that trial counsel was overworked. Hilton

must demonstrate with specificity "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466

U.S. at 687. On the rare occasion a defendant meets that threshold, he or she must also prove that

such an error prejudiced his case. Id. Hilton's allegations of deficiency are defeated by the record

and the testimony at the evidentiary hearing. Any impact the defense team's workload may have

had on the case would not have changed the outcome of the trial. There was voluminous

evidence of guilt, including the victim's DNA was found on items in Hilton's possession, Hilton

made numerous callous and incriminating statements, and the puncture marks in the victim's car

tires matched Hilton's bayonet. This claim is meritless and should be denied.

Claim 3: Whether Trial Counsel was Ineffective for Failing to Present a Cohesive,
United Defense in the Guilt and Penalty Phases of Hilton's Trial

Hilton alleges that trial counsel was ineffective for presenting a defense theory of

innocence in the guilt phase and admitting guilt during the penalty phase. Specifically, Hilton

claims the penalty phase theory was to blame the overprescription of Ritalin for Hilton's sudden

change in behavior and ultimately, the murder, and such a theory was inconsistent with the guilt

phase defense of attacking the forensic evidence. (Motion at 41-42). This claim is meritless

because the guilt and penalty phase strategies did not conflict with each other and the defense

team's strategies were dictated by the realities of the evidence in the case and Hilton's request

that his team "fight everything."

The guilt and penalty phase strategies were reasonable based on the realities of the

evidence in the case and Hilton's request to subject the State's case to adversarial testing. Suber

43

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noted that the evidence of guilt was "overwhelming," and there were not many weaknesses in the

guilt phase evidence for them to attack. (Evid. Hrg. Trans. at 70). The team considered using an

intoxication-induced insanity defense and held a meeting with the whole team and Daniels to

discuss it. Suber testified that it was a defense she wanted to pursue, but after Friedman

conducted research and conferred with a few experts, he determined that it was not a viable

defense in this case. (Id. at 133-34, 518). Such a determination is reasonable. Shellito v. State,

121 So. 3d 445, 453 (Fla. 2013) (holding that counsel was not deficient for failing to present an

intoxication defense as it would have been inconsistent with the defense theme). Hilton told the

team several times that he wanted to go to trial and "fight everything" if they could not get him a

life sentence plea agreement. (Ml at 133, 196, 256, 506). When repeated plea negotiations failed,

(Id. at 130), the team worked to develop Hilton's case for trial and ftght the evidence in his case.

Contrary to Hilton's assertion, trial counsel did not argue guilt phase theories, such as

actual innocence or circumstantial evidence, which would conflict with the evidence. Rather,

they attempted to demonstrate that there was reasonable doubt in the State's case. The approach

was comprised of pointing out inconsistencies in the evidence, highlighting unanswered

questions, and focusing on other areas of reasonable doubt, which was a reasonable trial strategy.

(R. 24:47-55; 37: 1529-60). As Suber explained, she did not argue that it was a circumstantial

evidence case, she argued that the evidence was insufficient to prove the allegations. (Evid. Hrg.

Trans. at 94-95). Friedman testified that the trial strategy was a "not guilty" defense, rather than

a claim that he was innocent. (Ml at 508). Moreover, alternative guilt phase theories, like

intoxication-induced insanity were evaluated and abandoned because they were not viable. (Id. at

44

1625
508-09). The defense team used the guilt phase strategy available to them, given the evidence

and Hilton's desire for an adversarial trial.

Trial counsel's guilt phase strategy was not inconsistent with the penalty phase. As

discussed, the guilt phase strategy attempted to highlight the weaknesses in the State's case,

rather than argue that he was actually innocent or that the State's case was purely circumstantial.

Both Suber and Friedman agreed that such a strategy is not inconsistent with trying to give

context to Hilton's behavior in the penalty phase. (Evid. Hrg. Trans. at 95, 135-36, 507-08).

Notably, it is common practice for trial attorneys to have their clients enter a not guilty plea,

proceed to trial on a reasonable doubt defense, and then plea for mercy in the penalty phase.

Raising such a defense did not assert factual innocence in this case, as Hilton appears to allege,

and thus, it was not inconsistent with the penalty phase theory.

Hilton argues his trial counsel's guilt phase strategy was poorly executed, particularly by

objecting too much or by executing poor cross-examination. (Motion at 35, 37). The defense

team's effort in protecting Hilton's rights and preserving issues for appeal was thorough and not

excessive. Hilton discussed with Suber that he wanted her to preserve every evidentiary matter

that she could. (Evid. Hrg. Trans. I 0/30/18 at 86-87). Friedman testified that while juries at times

dislike lots of objections, the State was having issues laying predicates for some of their evidence

and the defense team could not overlook that and just let the evidence in. (Id. at 509-10).

Finally, Hilton has failed to allege any speciftc basis of prejudice. Hilton claims that the

inconsistent theories diminished the defense team's credibility in front of the jury, and the

defense team should have used a different guilt phase theory. (Motion at 42). However, he fails

to identify what guilt phase theory would have a reasonable probability of resulting in a life

45

1626
sentence. Given the voluminous evidence of guilt, including the victim's DNA found on items

Hilton possessed, Hilton's numerous callous and incriminating statements, and the puncture

marks in the victim's car tires that matched Hilton's bayonet, there is no question the outcome of

Hilton's trial would be the same, regardless of the guilt and penalty phase theories. Hilton's

claim is meritless and should be denied.

Claim 4: Whether Hilton is entitled to Relief Pursuant to Hurst v. Florida, 136 S. Ct.
616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016)

Hilton claims that he is entitled to a new penalty phase pursuant to Hurst v. Florida, 136

S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). Hilton is not entitled to relief

because the unanimous jury death recommendation, combined with the overwhelming evidence

supporting the aggravators in this case weighed against the uncompelling mitigation, renders any

Hurst error harmless. Hilton's claim is without merit and should be denied.

Harmless error analysis inquires whether the record demonstrates beyond a reasonable

doubt that the jury would have unanimously recommended death had it been instructed m

accordance with Hurst v. State, 202 So. 3d at 68 (analyzing whether the jury's failure to

unanimously find all the facts necessary for imposition of the death penalty contributed to

Hurst's death sentence); see also Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007).

Any Hurst error in Hilton's case is plainly harmless because the jury in his case voted

unanimously to impose the death penalty. While Hilton argues that it is reversible error for the

jury to recommend death without making express findings regarding the existence of sufficient

aggravators and the weighing of the aggravation and mitigation, (Motion at 43-45), this

argument is unsupported by the law. The Florida Supreme Court has consistently found Hurst

error harmless in cases with similar circumstances where the jury unanimously voted to impose

46

1627
the death penalty. See Davis v. State, 207 So. 3d 142 (Fla. 2016); King v. State, 211 So. 3d 866

(Fla. 2017); Truehill v. State 211 So. 3d 930 (Fla. 2017); Lowe v. State, No. SC12-263 2018

WL 5095143, *26 (Fla. Oct 19, 20 18).

In Lowe v. State, 2018 WL 5095143, *26, the Florida Supreme Court relied in part on the

Lowe's jury instructions in finding that any Hurst error was harmless.

Here, the jury was informed that before it could consider the death penalty, it
must first determine that at least one aggravating circumstance has been proven
beyond a reasonable doubt Also, as in Davis [v. State, 207 So. 3d at 142], the
jury was informed 'that it needed to determine whether sufficient aggravators
existed and whether the aggravation outweighed the mitigation before it could
recommend a sentence of death.' Id. at 174. Among other things, the jury was also
informed that, regardless of its findings, it was neither compelled nor required to
recommend a sentence of death.

Id. at *27. Because the jury unanimously recommended death despite the mitigation presented

and being informed that they are never required to recommend death, the unanimous

recommendation was sufficient to conclude that Hurst error was harmless. Id.

The jury instructions in Hilton's case were like those in Lowe. (12:2307-14). Hilton's

jury was instructed that one aggravator must be proven beyond a reasonable doubt before they

could consider the death penalty, (12:2309-10), and that the jury must determine whether

sufficient aggravators exist to justify the death penalty and whether the aggravators outweighed

the mitigators. (12:2312). The instructions also advised the jury that they are never required to

recommend a death sentence and cautioned them to "carefully weigh, sift, and consider the

evidence, realizing that human life is at stake." (12:2313).

The unanimous death recommendation and the instructions the jury received provide this

Court with the basis to conclude that the jury made the required findings under Hurst As the

47

1628
Florida Supreme Court held in Lowe and numerous other cases, any Hurst error in this case is

harmless beyond a reasonable doubt.

Hilton asserts multiple flawed reasons for this Court to depart from the Florida Supreme

Court's decisive precedent. Hilton alleges that the jury instructions diminished the jury's role

under Caldwell v. Mississippi, 472 U.S. 320 (1985), by telling the jury their sentence finding was

advisory. (Motion at 49-50). First, these instructions do not mislead the jury because a jury's

sentence finding is advisory; the trial court may depart from a jury's death recommendation and

impose a life sentence when fitting. This did not change following Hurst. See § 921.141(2)(3),

Fla. Stat. (2017) (calling the jury's sentencing finding a "recommendation"). Second, in Truehill,

the Court found harmless Hurst error regardless of the trial court's instruction to the jury that the

verdict was advisory. 211 So. 3d at 955. The Court concluded that Hurst error was harmless

because the jury was instructed on the proper considerations in recommending a sentence and

based on the unanimous recommendation, the Court concluded the jury made the constitutionally

required findings. Id. at 955-57. The jury instructions in Hilton's case reflect the requirements

described in Truehill and support the conclusion that the jury's role was not diminished in

violation of Caldwell.

Hilton argues trial counsel's penalty phase approach may have been different if the jury

instructions complied with Hurst and the trial court may have imposed a life sentence if bound by

the jury findings. (Motion 51-54). These arguments are highly speculative, and the Florida

Supreme Court has not found such arguments persuasive in numerous cases where a unanimous

verdict has rendered Hurst error harmless.

48

1629
 Finally, Hilton claims that harmless error review cannot be applied because there must

first be "a valid jury verdict, grounded in the proof-beyond-a-reasonable-doubt standard."

(Motion 56-57). Such an argument ignores the fact that the beyond-a-reasonable-doubt standard

has not changed after Hurst. Section 921.141, Florida Statutes, required the aggravators be found

beyond a reasonable doubt prior to Hurst and that requirement is unchanged following Hurst.

Neither the United States Supreme Court, nor the Florida Supreme Court have interpreted Hurst

to change the findings that must be found beyond a reasonable doubt before recommending a

death sentence. See Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (rejecting a claim that the

constitution requires a burden of proof attached to the finding of whether mitigating

circumstances outweigh aggravating circumstances); Fla. Std. Jury Instr. (Crim.) 7.11.

Moreover, the Florida Supreme Court has clearly held that harmless error review applies

to Hurst error. Johnson v. State, 205 So. 3d 1285, 1289-90 (Fla. 2016). Furthermore, the Florida

Supreme Court repeatedly uses unanimous verdicts as a factor in evaluating whether a Hurst

error is harmless. Davis, 207 So. 3d at 177; King, 211 So. 3d at 866; TruehilL 211 So. 3d at 930.

The suggestion that the Sixth Amendment prohibits Florida Supreme Court's use of unanimous

verdicts in evaluating the harmlessness of Hurst errors is entirely unsupported by the law.

Any Hurst error is harmless. Overwhelming evidence support the weighty aggravators in

Hilton's case, including incriminating statements and forensic evidence, and easily outweighed

the unpersuasive mitigation. The jury rendered a unanimous recommendation for death after

being instructed to make the findings required under Hurst. This claim should be denied.

49

1630
 Claim 5: Whether Trial Counsel was Ineffective for Failing to Object to Hilton's
Eligibility for the Death Penalty

Hilton claims that his mental illness makes him ineligible for the death penalty under the

Eighth Amendment. Specifically, Hilton claims that his death sentence should be vacated

because his mental illness 13 renders him ineligible for the death penalty, and he claims his trial

counsel was ineffective for not raising this claim at his trial. This claim is unripe and Florida law

does not recognize mental illness as a valid bar to imposition of the death penalty.

Article I, section 17 of the Florida Constitution prohibits this Court from departing from

the United States Supreme Court's Eighth Amendment rulings. See Correll v. State, 184 So. 3d

478,489 (Fla. 2015) (citing Valle v. State, 70 So. 3d 530, 538-39 (Fla. 2011)).

The United States Supreme Court has determined that the Eighth Amendment requires an

age-related categorical bar on imposing the death penalty to offenders who were younger than 18

years old at the time of the offense. Roper v. Simmons, 543 U.S. 551 (2005). Similarly, in Atkins

v. Vircini!!, 536 U.S. 304 (2002), the Court created a categorical bar to imposing the death

penalty on intellectually disabled defendants. No similar categorical bar exists for defendants

suffering from mental illness.

Hilton does not fall into any class that is excluded from imposition of the death penalty

under the Eighth Amendment, and the United States Supreme Court has never recognized a

categorical bar for imposition of the death penalty due to mental illness. While Hilton attempts to

draw similarities between mental illness and classes that are ineligible for the death penalty, such

as juvenile and intellectually disabled defendants, there is absolutely no basis in the United

States Supreme Court's jurisprudence for his argument Moreover, the Florida Supreme Court

13 Hilton notes various mental conditions relevant to this claim, including brain damage, pervasive drug use in his
youth, multiple sclerosis, schizoaffective disorder, and exhibitions of "bizarre" behavior. (Motion at 61-62)
50

1631
has repeatedly rejected such claims. See Power v. State 992 So. 2d 218, 222 (Fla. 2008)

("[N]either this Court nor the Supreme Court has recognized mental illness as a per se bar to

execution."); Johnston v. State, 27 So. 3d 11 (Fla. 2008); Lawrence v. State, 969 So. 2d 294, 300

(Fla. 2007); Simmons v. State, 105 So. 3d 475, 511 (Fla. 2012). As the Florida Supreme Court

has repeatedly rejected such claims and this Court is bound by the Florida Constitution to

construe its Eighth Amendment jurisprudence in accordance with United States Supreme Court

precedent, this claim is meritless and should be denied.

To the extent that Hilton is attempting to allege that his mental illness renders him legally

insane, and thereby incompetent to be executed, such a claim is unripe for review. A claim of

legal insanity, also called a Ford 14 claim, addresses whether a defendant is competent to be

executed, and must be raised pursuant to a specific statutory procedure. Section 922.07, Florida

Statutes, sets fortb the procedure to be followed in raising a Ford claim, vesting the power in the

governor to determine whether a defendant is insane. Rule 3.8ll(c), Florida Rules of Criminal

Procedure, states, "No motion for a stay of execution pending hearing, based on grounds of the

prisoner's insanity to be executed, shall be entertained by any court until such time as the

Governor of Florida shall have held appropriate proceedings for determining the issue pursuant

to the appropriate Florida Statute." Goode v. Wainwright, 448 So. 2d 999 (Fla. 1984). As such,

Hilton's Ford claim is unripe.

Trial counsel was not ineffective for failing to file a motion arguing that Hilton's mental

illness renders him ineligible for the death penalty because such a claim is without legal merit.

Counsel cannot be ineffective for refusing to raise a frivolous claim. See Lockhart v. Fretwell,

506 U.S. 364 (1993); Nix v. Whiteside, 475 U.S. !57 (1986). When asked why he did not file a

14 Ford v. Wainwright, 477 U.S. 399 (1986).

51

1632
motion claiming Hilton was ineligible for the death penalty due to mental illness, Friedman

explained that he did not file such a motion because the Florida Supreme Court has "repeatedly

held that severe mental illness is not a bar to the death penalty." (Evid. Hrg. Trans. at 549). As

there was no legal basis for counsel to file such a motion, counsel was not ineffective for failing

to do so in Hilton's case. This claim should be denied.

Claim 6: Whether Trial Counsel was Ineffective for Failing to Preserve for Appeal
the Denial of Cause Challenges During Jury Selection 15

Hilton puts forth a conclusory claim that trial counsel was ineffective for failing to

preserve the denial of cause challenges in accordance with Trotter v. State, 576 So. 2d 691 (Fla.

1990), so that such denials could be raised on appeal. (Amended Claim 6 at 2-3). Hilton's claim

fails because it is facially insufficient, and Hilton is unable to demonstrate that he was prejudiced

by counsel's actions during jury selection because no biased jurors sat on his jury.

This claim is insufficiently pled because Hilton has simply made a broad allegation that

trial counsel was ineffective because cause challenges were not preserved. (Amended Claim 6 at

2-3). He does not identify which cause challenges counsel should have preserved, he does not

allege any specific facts to demonstrate prejudice, and he does he identify any biased jurors who

remained on his jury. He simply makes conclusory allegations. To be entitled to relief, the

movant must allege specific facts. The defendant "bears the burden of establishing a prima facie

.case based upon a legally valid claim." Hannon v. State, 941 So. 2d 1109, I 139 (Fla. 2006)

(explaining that where a movant presents only bare conclusory allegations on several issues,

summary denial was proper). Hilton's claim should be denied as insufficiently pled.

15 This claim is sequentially numbered as Claim 6 but Hilton's Motion, presumably due to typographical error, has
this claim listed as Claim 7. (Motion at 73).
52

1633
 Hilton's claim is also meritless. Hilton cannot satisfy Strickland's prejudice prong

because there is nothing in the record that demonstrates that any of the jurors seated in Hilton's

case were actually biased. A Strickland claim related to jury selection requires proof, plain on the

face of the trial record, that an actually biased juror sat in the case. In Carratelli v. State, 961 So.

2d 312 (Fla. 2007), the Florida Supreme Court concluded that a Strickland claim for failing to

preserve a denial of a challenge for cause must establish that an actually biased juror sat on the

jury, and such bias must be plain on the face of the record. The Court defined an actually biased

juror as one who is not impartial; one who is biased against the defendant. Id. at 324. Actual bias

means bias-in-fact that would prevent service as an impartial juror. United States v. Wood 299

U.S. 123, 133-34 (1936).

Here, Hilton has failed to specifically identify any jurors that were actually biased in his

case, nor does he provide a single citation to the record that supports his claim. Rather, Hilton

simply makes the broad claim that "the face of the record demonstrates bias of jurors sought to

be stricken for cause," without providing specific record citations or naming specific jurors.

Most importantly, the record does not support Hilton's claim that biased jurors sat in his

case. Hilton's jury panel consisted of Jurors Crowell, Sperduti, Hoffman, Williams, Herring,

Bearss, Reichert, Harris, Walker, Godwin, Rice, and Sparks. Booth and Tarof served as alternate

jurors. (R. 23:1075-77). The only jurors serving on Hilton's jury that had been objected to by

counsel were Jurors Crowell and Rice. Although Juror Crowell had been exposed to some media

coverage about Hilton, she unequivocally and repeatedly stated she could set aside anything she

heard about him prior to the case. (R. 17:30-35). All of Juror Crowell's other questioning

reflected no bias, and many of her responses were favorable to Hilton. (R. 22:669, 681-83, 697-

53

1634
703, 754-55, 759, 770, 792-95, 852). During questioning, Juror Rice stated that names in the case

sounded familiar, but other than "something about a kidnapping and a body found in the forest,

or something like that," she didn't remember any details about why the names were familiar to

her. (18:281). Juror Rice confirmed unequivocally that she had not formed any opinion about the

case. (18:280). Juror Rice also indicated she was "for the death penalty," (R. 23:1057), but

confirmed repeatedly that she would not automatically impose the death penalty and would

follow the court's instructions about weighing the aggravation and mitigation in deciding on a

sentence. (R. 23:1060-62). Juror Crowell's and Juror Rice's responses do not reflect actual bias

on the face of the record as required to establish prejudice under Carratelli, 961 So. 2d at 312;

Wood, 299 U.S. at 133-34.

Hilton's claim is facially insufficient and he is unable to establish the requisite prejudice

by demonstrating on the face ofthe record that an actually biased juror sat in his case. As such,

Hilton's claim should be denied.

Claim 7: Cumulative Error 16

Hilton alleges that he did not receive a fair trial due to the numerous errors in his case. He

asserts that the errors complained of in his Motion tainted his case and these errors are not

harmless. (Motion at 74). Cumulative error relief is not warranted in Hilton's case because none

of his claims have any merit.

Although Hilton presents this claim as an independent basis for relief, a cumulative error

claim cannot warrant relief unless the trial court finds specific claims of error meritorious. Israel

v. State, 985 So. 2d 510, 520 (Fla. 2008) (holding where individual claims of error are meritless

16 This claim is sequentially numbered as Claim 7 but Hilton's Motion, presumably due to typographical error, has
this claim listed as Claim 8. (Motion at 74).
54

1635
or procedurally barred, a defendant is not entitled to relief based on cumulative error). Because

all of Hilton's claims are meritless, he is not entitled to cumulative error relief. See Griffin v.

State, 866 So. 2d 1, 22 (Fla. 2003) ("[W]here individual claims of error alleged are either

procedurally barred or without merit, the claim of cumulative error must fail.); Vining v. State,

827 So. 2d 201, 219 (Fla. 2002) (where the defendant's claims were either meritless,

procedurally barred, or did not meet the Strickland standard, his cumulative error claim

necessarily failed). As all of Hilton's claims are meritless, Hilton is not entitled to cumulative

error relief.

CONCLUSION

WHEREFORE, the record and the evidence presented at the evidentiary hearing

affirmatively demonstrates that Hilton is not entitled to relief. The State prays this Court deny

Hilton's Motion in its entirety.

Respectfully submitted,

ASHLEY BROOKE MOODY

ATTORNEY GENERAL

Is/ Jenniter L. Keegan

JENNIFER L KEEGAN
ASSISTANT ATTORNEY GENERAL
Florida Bar No.: 0105283
PL-01, The Capitol
Tallahassee, FL 32399-1050
jennifer. keegan@m yfl ori dalegal. com
capapp@m yfl ori dal ega!. com
Phone: (850) 414-3579
Co-counsel for the Plaintiff

JACK CAMPBELL
STATE ATTORNEY

Is/ Georgia Capp/eman

55

1636
 GEORGIA CAPPLEMAN
ASSISTANT STATE ATTORNEY
Florida Bar No.: 566071
301 South Monroe St., Ste. 475
Tallahassee, FL 32301-1861
capplemang@leoncountyfl.gov
Phone: (850) 606-6062
Co-counsel for the Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished

via the eportal to Robert A. Morris, Esq., alex@ramlawyer.com, Counsel for the Defendant; and

the Office of the State Attorney, SA02_Leon@leoncountyfl.gov; this 14th day ofJanuary, 2019.

Is/ Jenniter L. Keegan

CO-COUNSEL FOR THE PLAINTIFF

56

1637
Filing# 83335402 E-Filed 01/14/2019 10:20:31 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO.: 2008-CF-697A

DIVISION: FELONY

GARY MICHAEL HILTON, DEATH PENALTY

DEFENDANT.

------------------------~1

GARY MICHAEL HILTON'S WRITTEN CLOSING ARGUMENT

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, pursuant to Rule 3 .85l(f)(5)(E), Florida Rules of Criminal Procedure and files this

written closing argument supporting the Defendant's claims of ineffective assistance of counsel.

Counsel argues as follows:

Preliminary Statement

The record before the Court is in several different formats and is somewhat complicated

given the length of the proceedings. The transcripts of the trial shall be referred to by use of the

symbol, "T," any necessary volume reference as well as the appropriate page number

designation. The transcripts of the hearing on the motion for post-conviction relief shall be

referred to by use of the symbol "H," any necessary volume reference and the appropriate page

number designation. There are several exhibits that were entered into evidence during the course

of the evidentiary hearing by the State and the Defense. They will be referred to by the exhibit

1638
number as well as any additionally descriptive information that draws the Court's attention to the

reference.'

Counsel has elected not to focus on legal arguments surrounding the application of the

facts to the Jaw or vice versa. The applicable Jaw has already been set forth and argued in

pleadings previously filed. This Court is well aware of the law surrounding post-conviction

proceedings. It is of greater consequence that Counsel highlight factually why trial counsels'

performance and why Mr. Hilton was prejudiced.

Claim 1: Trial counsel was ineffective during the penalty phase in violation of
Mr. Hilton's Sixth and Fourteenth Amendment right to effective counsel.

During Mr. Hilton's penalty phase, trial counsel inexplicably failed to elicit relevant

testimony from witnesses on the stand, completely failed to call other witnesses who had helpful

information, and did not adequately consult with and prepare the expert witnesses. Counsel's

stewardship during the penalty phase was deficient, and these deficiencies prejudiced Mr. Hilton

by not providing the effective counsel guaranteed by the Sixth and Fourteenth Amendments.

Accordingly, Mr. Hilton is entitled to a new penalty phase.

Trial counsel opted for a barebones, streamlined mitigation presentation during the

penalty phase. This left out much of Mr. Hilton's life history and Jed to a mitigation story that

ultimately hurt Mr. Hilton because it opened the door to the State's harmful rebuttal evidence.

Trial counsel collected historical information about Mr. Hilton's life, which included, among

other things, head injuries, neglect, sexual abuse, suicidal ideations, instability, poverty, and

mental illness. However, the jury never heard a vast majority of this information, including that

1 In candor, post~conviction counsel for the Defendant probably made things more complex with the format of the
exhibits admitted into evidence because they are not "Bates stamped" and must now be referenced by the actual
document within the exhibit.
2

1639
this was not simply a case of Ritalin overuse, but instead Ritalin overuse by a man who was

already impaired and on the cusp of a breakdown. Trial counsel could have shown the jury that

Mr. Hilton's brain damage and mental illness, in addition to his troubled life history, left him

especially vulnerable to the effects of wrongfully prescribed Ritalin. Had trial counsel presented

a more complete picture of Mr. Hilton's life history, there is a reasonable likelihood that the

result of the penalty phase would have been different and the jury would have voted for life.

The evidence adduced at the evidentiary hearing in this matter was nothing less than

shocking. Thematically, the trial defense team was not a team at all and all of the sworn

testimony before the Court essentially conflicts with the testimony of others and seeks to point

fingers and cast blame on other members of the defense team. It would take a flow chart

hundreds of yards long to come close to reflecting the absolute disaster of the defense structure

and presentation. Clarence E. Gideon would have been better off representing himself in this

circumstance-' The testimony and the evidence before the Court is truly amazing and unique.

Moreover, it is not incredibly helpful in the Court's proper resolution of this matter.

There is no point in trying to give a citation to the record to explain how the defense team

was organized or structured. Every single witness testified differently as it related to who

became a member of the defense team and when as well as what their responsibilities were along

with the responsibilities of others. The most telling comment that trail counsel (seemingly

responsible for the penalty phase presentation) made during the evidentiary hearing was that the

mitigation specialist's efforts and work were simply "helpful." (H, 560).

'Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) was, of course, the United States Supreme
Court's landmark decision that indigent persons should be afforded counsel under the protections guaranteed in the
6"' Amendment to the United States Constitution.
3

1640
 Beatriz "Betty" Fuentes was the mitigation specialist in the Office of the Public

Defender. From the inception of the case, she was on board. (H, 179-184). Ms. Fuentes

developed some 300 different mitigation witnesses and drafted memoranda as it related to each

of the witnesses interviewed as well as prepared a PowerPoint presentation to chronicle the life

of Mr. Hilton. (H, 187-197,230-263, Exhibit I-A, Exhibit IV). Ms. Fuentes testified that that

she developed and prepared witnesses for testimony that would aid in telling the life story of Mr.

Hilton (from birth to the time of the offense). (H, 187-197,230-263, Exhibit I-A, Exhibit IV).

She also testified that trail defense counsel Friedman contacted these witnesses and offended

them to the point of them not be willing to testify. (H, 187-197, 230-263). Mr. Friedman, of

course, denies that he did any of this. (H, 454-552). In the end, Ms. Fuentes resigned her

position from the Office of the Public Defender as a mitigation expert in the middle of trial

because none of the mitigation she had developed were being utilized on behalf of Mr. Hilton.

(H, 187-197, 230-263). Mr. Friedman characterizes all of this as "strategy" and essentially

asserts that all of the evidence that he deemed necessary was able to "come in" through the

experts. (H, 454-552). Every single witness had a different opinion and impression of why Ms.

Fuentes left the case in the middle of trial and under what circumstances. All of them were

negative as it related to Mr. Hilton's defense. The exception was/is Mr. Friedman's general

testimony and expressions that he got everything correct and just simply had to make "tactical

and strategic decisions." (H, 454-552).

It is helpful to look at the matters that should have been put before the jury in

chronological order and categorical order to gather a better context as to what was available for

Mr. Hilton's defense. Set forth below is a helpful chronology of evidence admitted during the

evidentiary hearing that should have been provided to the jury during Mr. Hilton's trial. The

1641
facts below track the life and circumstances of Mr. Hilton from a narrative perspective and

provide the witnesses who could have and would have testified to the assertions herein.

Mitigating evidence available at the time of trial would have shown Mr. Hilton's life filled
with mental illness, brain injury, childhood abuse and neglect, unstable relationships, and
years of substance abuse.

Cleo Marie Debag nee Reynolds, Mr. Hilton's mother, was born in Calhoun, Georgia, in

1925. She had three siblings, and she was the second oldest. When Ms. Debag was eleven-years-

old, her mother died. A few years later, her father remarried a much younger woman. Ms.

Debag's father and stepmother abused and starved the kids. The parents would put the children

outside without any food, and the children were not allowed to come in. When they were inside,

Ms. Debag's father would hide the food from them. Finally, Ms. Debag's stepmother grew tired

of the children and sent them to live elsewhere. Ms. Debag was left on her grandmother's porch

and eventually moved in with her aunt and uncle. She viewed her aunt and uncle as her parents

after that. Ms. Debag dropped out of school in ninth grade and worked as a dishwasher.

In 1943, Ms. Debag was working as a waitress in a pharmacy when William Esco Hilton carne

in. He asked for permission to take her home, and she agreed. They started dating after this, and

they married three months later on October 2, 1943. Mr. William Hilton was thirty-two, and Ms.

Debag was eighteen.

Three months after they were married, Mr. William Hilton left to join the Army. After

this, Ms. Debag and William Hilton never lived together again. They would see each other

sporadically and meet in hotels. Three years after they were married, Ms. Debag got pregnant.

At the time, the marriage was not going smoothly, and Ms. Debag got pregnant intentionally in

1642
the hopes that it would force William Hilton to get them an apartment. Her plan did not work,

but Gary Michael Hilton was born on November 22, 1946.

William Hilton left his young family and moved to Jackson, Georgia to open a jewelry

store. He actually had another wife in Jackson at the same time that he was married to Ms.

Debag, and he had four more children. At least two of these children were also abandoned by

their father.

Ms. Debag had been hoping for a girl when she got pregnant, so she dressed Mr. Hilton

in girl's clothes for the first few months of his life. She rented out a room in a house and lived

there with him. There was no crib, so he slept in the same bed as his mother. William Hilton was

not providing financial assistance, so they did not have much money. Ms. Reynolds tried to sue

him for child support at one point, but Legal Aid was unable to locate him.

When Mr. Hilton was a baby, Ms. Debag was very attentive. She always had him with

her when she was not working and spent all of her free time taking care of him. She took a lot of

pictures and kept track of his milestones.

When Mr. Hilton was nine-months-old, Ms. Debag divorced William Hilton. She brought

her baby to the courthouse with her, and he played under the table during the proceedings.

William Hilton would not even acknowledge his son. This was the last time that William Hilton

saw his son. He was later shot and killed by one of his wives, Edna May Hilton, in Lexington,

Kentucky in 1971 after he attacked her with a fire poker.

Ms. Debag continued raising her baby by herself. When Mr. Hilton was one-and-a-half,

he had to go in for tonsil and adenoid surgery. Ms. Debag had to put hot towels on his head

because the pain from his sinuses was so intense. Around this same time, Mr. Hilton also

1643
contracted rheumatic fever. This lasted until he was five-years-old. The doctors told Ms. Debag

not to let Mr. Hilton walk, and after that she carried him until he was three.

Ms. Debag returned to work when Mr. Hilton was two. She made $1.00 per hour and

$25.00 per month. Since Ms. Debag was not making very much money, they either rented out

rooms or lived in housing projects. She would get home very late, so she would make him dinner

and then put him to bed right away. She did not have as much time for her young son, and she

did not get to interact with him as much as she once had. When she did spend time with him,

however, she treated him like a friend instead of her very young child. She was lonely, so she

would talk to Mr. Hilton as if he were an adult and shared personal, mature things with him.

WhEm Ms. Debag could take time off work, she would take Mr. Hilton on trips. She

would take him to see his cousins in Gainesville, Georgia. However, one of his older cousins

threw a mattress on Mr. Hilton and smothered him, almost killing him_ Mr. Hilton was on! y four

at the time.

Even after the sinus surgery, Mr. Hilton continued to suffer from his sinus problems as a

young child. When Mr. Hilton was only five, he was in so much pain that Ms. Debag walked in

on him holding a knife, about to cut his arms. When Mr. Hilton started attending kindergarten, he

still had symptoms of rheumatic fever and had a heart murmur.

Around this time, Mr. Hilton got a pet bird named Pee Wee_ He was very attached to the

bird. Ms. Debag left the window open one day, and the bird flew away. Mr. Hilton spent hours

calling for his bird, who never returned. Though it was an accident, Mr. Hilton blamed his

mother for Jetting the bird go.

When Mr. Hilton was in second grade, Ms. Debag transferred for work to Tampa,

Florida. They Jived in a housing project. Mr. Hilton went to daycare when he was not in school,

1644
but it was not a good one. One day, Mr. Hilton got stuck in a bathroom. When he called for help,

nobody responded. He had to crawl through a window to get out. After that, Ms. Debag started

leaving Mr. Hilton with a neighbor. However, the neighbor tried to throw Mr. Hilton into an

alligator pit, and this terrified Mr. Hilton. He started going to the Boys and Girls Club of Tampa

after that, where he excelled.

Mr. Hilton's life changed for the worse in 1955. When he was nine-years-old, his mother

met and married Nilo Debag. Mr. Debag was a horse trainer from Argentina. He traveled around

to different race tracks around the country. One night, he was at a park in Tampa when he came

across Ms. Debag and Mr. Hilton. It was raining, so he offered them a ride and to go get

something to eat. Ms. Debag was still having financial problems, and Mr. Debag had a lot of

money. By this time, Ms. Debag had her own apartment, and Mr. Debag started coming over and

staying the night. Two months after they started dating, Mr. and Ms. Debag got married.

Mr. Hilton's life was very different after his mother's remarriage. He went from having

his mother give him her full attention when she was not at work to her regular! y choosing her

new husband over him. Mr. Debag traveled a lot for work, training and buying horses. Mr.

Hilton's mother would go with him, and when she did this she would leave Mr. Hilton with his

aunt. Mr. Debag became possessive over Ms. Debag, and he wanted her all to himself. Once they

were married for two months, they moved to Toledo, Ohio. They left Mr. Hilton behind, and he

moved in with his maternal aunt and uncle.

Six weeks later, Ms. Debag moved back to Tampa, and Mr. Hilton returned to her care.

Mr. Debag moved separately to Chicago and then Cleveland. Once Ms. Debag and Mr. Hilton

were back in Tampa, they rented a room within a house. A day or two after they moved in, Ms.

Debag was trying to unscrew a Murphy bed bolted to the floor but could not get under it. She

1645
asked Mr. Hilton to go under the bed, but then it fell on his head. Ms. Debag lifted the bed and

started screaming. The metal bars had cut Mr. Hilton's scalp open. A next door neighbor,

Victorine Rowe, heard the screaming and ran over. She saw Ms. Debag trying to hold bloody

towels over Mr. Hilton's head and to calm down so the towels would stay still. Another neighbor

came over to take them to the hospital. Mr. Hilton was in the hospital for a week, and he received

two hundred (200) stitches in his head. When he finally went back home, his entire head was

bandaged.

Mr. Hilton continued to move around a lot with his mother and stepfather. He changed

schools about every three months. Within a couple years, Mr. Hilton lived in Atlanta, Tampa,

Toledo, Louisville, Cleveland, Cincinnati, and back to Tampa. Mr. and Ms. Debag continued to

pull Mr. Hilton out of school to travel around with him. Mr. Hilton tried to participate in school

activities. For example, in Toledo he became a school patrol; but this was short-lived because he

had to move again. The family went to Tampa, Chicago, Miami, Hialeah, San Francisco, and

back to Hialeah. Between kindergarten and seventh grade, Mr. Hilton changed schools seventeen

times. A few times, he was in school for less than a week. When they were in San Francisco, Mr.

Hilton missed school for a month after a flood prevented him from returning to school.

Mr. Debag lived with the family sporadically. One of the times that they were all living

together in Toledo, about a year after Mr. and Ms. Debag were married, Mr. Hilton started

vomiting a lot. Ms. Debag took him to the doctor, who told them that Mr. Hilton had an ulcer.

The ulcer went away once Mr. Debag was living by himself in Ohio and Mr. Hilton was with his

mother in Florida. Ms. Debag assumed that Mr. Hilton was afraid of Mr. Debag and that is why

he got the ulcer. When Mr. Debag got angry, which was often, he would break and throw things.

One time he tore up one of Mr. Hilton's favorite coats. Ms. Debag told Mr. Hilton not to speak or

1646
respond to Mr. Debag' s outbursts. Ms. Debag suspected that Mr. Hilton and Mr. Debag were

jealous of each other because they both wanted all of her time and attention.

When Mr. Hilton was ten, Mr. Debag left for one of his business trips. While he was

gone, Ms. Debag had a miscarriage. Mr. Hilton was the only one around, and he had to call an

ambulance for his mother.

During all this moving around, Mr. Debag brought Mr. Hilton back a Dalmatian named

Muhamad. Mr. Hilton got very attached to the dog and dressed him up for Halloween. He played

with and trained Muhamad. Then, Mr. Debag suddenly took Muhamad away and never brought

him back. Another time, when Mr. Hilton was eleven, they lived next door to a family who got a

puppy. Mr. Debag thought that the family was not taking care of the puppy, so he took it. They

brought the puppy with them when they moved back to Florida. Shortly after the move, the dog

disappeared. Mr. Hilton found the dog's body in a trash can where Mr. Debag had thrown it.

When Mr. Hilton was around eleven or twelve, Ms. Debag came home from work. Mr.

Debag and Mr. Hilton had been home alone together. Mr. Hilton· privately told his mother that

Mr. Debag had tried to take off his pants in front of him. Ms. Debag dismissed it and did not

confront Mr. Debag with Mr. Hilton's accusation.

Mr. Debag cared little about education and thought nothing of pulling Mr. Hilton out of

schooL When the family moved to Puerto Rico, then, they did not enroll Mr. Hilton in school

there. Ms. Debag tried to enroll Mr. Hilton in correspondence school, but she never got the

paperwork in. Mr. Hilton was expected to help Mr. Debag because Mr. Debag had been working

since before he was ten and wanted the same for Mr. Hilton. In Puerto Rico, Mr. Hilton was with

Mr. Debag when Mr. Debag was beaten by other horse trainers. Mr. Debag almost died in the

beating and was hospitalized.

10

1647
 Mr. Hilton and Mr. and Ms. Debag returned to Florida when Mr. Hilton was fourteen.

They lived in Miami Beach first, where Mr. Hilton fell out of a tree and broke every bone in his

hand. He did not tell his mother until later that night when he had to tell her because his hand

was so swollen. They moved to Hialeah, Florida next. That year, he got a persistent rash in his

genital area. Ms. Debag treated it at home with boric acid. She also got the same rash, but hers

was treated when she went to the doctor for an unrelated surgery.

Around this time, Mr. Hilton started dating Sandy Herman, a classmate of his. They

mostly hung out after school and did homework together. Mr. Hilton's other friend at that time,

Leonard Scalfani, was two years older than him and had been held back a few times. Otherwise,

Mr. Hilton did not really socialize with any other students. Ms. Herman went to Mr. Hilton's

home a few times, and she met both of his parents. Ms. Debag was nice to her, but Mr. Debag

was distant. She was not sure if he just did not know much English or if it was his personality,

but he would only say hello to her and not much else.

In 1961, Mr. and Ms. Debag separated. This was one of seven times that this happened.

Mr. Hilton and his mother moved into a one bedroom apartment in a motel. On September 5,

1961, Mr. Hilton stopped off at the apartment to try and reconcile with Ms. Hilton. Mr. Hilton

told Mr. Debag to go away, but Mr. Debag refused. Mr. Hilton threatened to call the police if Mr.

Hilton would not go, but this did not faze Mr. Debag. Mr. Hilton had a gun that he had borrowed

from a friend, so next he threatened to shoot Mr. Debag. Mr. Debag still did not leave and

encouraged Mr. Hilton to shoot. Mr. Hilton aimed at Mr. Debag's lower stomach and shot him

there. Ms. Debag chose her husband over her son because she talked to a counselor who said it

was her duty to be loyal to her husband. Mr. Hilton was taken into juvenile custody, and the

attorney appointed to represent him made sexual passes at him and paid him for sex. Mr. Hilton

11

1648
 ultimately ended up staying with the Kellers, family friends who offered to take Mr. Hilton in.

They became his foster parents temporarily.

While Mr. Hilton was in foster care, Ms. Herman went with Ms. Debag to buy a set of

drums for Mr. Hilton. He taught himself to play and started playing with a band, The Famous

Yellow Jackets.

The shooting was in the local papers. Ms. Herman broke up with Mr. Hilton right after.

She changed schools, and the two of them just stopped talking. Mr. Hilton was devastated, and

he had a breakdown. He was admitted to Jackson Memorial Psychiatric Unit. After his release

from that unit, he moved in with Margarite and Thomas Perchoux for six months. Margarite

Perchoux worked with Ms. Debag at the time. They lived two blocks away from Ms. Debag, but

Ms. Debag never came to visit her son. She also did not assist financially.

Ms. Debag left Mr. Debag again shortly after, and Mr. Hilton left the Perchouxs to move

back in with his mother. Ms. Debag took Mr. Hilton to Atlanta with her to meet an aunt who was

. ill. While there, Mr. Hilton met a young woman around his age, Beverly Hilton, who had the

same last name. When Mr. Hilton told his mother, she went to see Ms. Hilton's mother Vema

and discovered that William Hilton had married Vema Hilton while still married to Ms. Debag.

Mr. Hilton was learning for the first time that he had a sister.

When they returned to Florida in 1963, Mr. Hilton taught himself to play the drums and

started playing in a band. This was one of the few times Mr. Hilton seemed happy. Usually, he

was brooding about his home life. When he played in the band, though, he became a different

person and was in a better mood, although he also bragged a lot about his drum skills.

After Mr. Hi! ton joined the band, they usually practiced at Mr. Hilton's house because his

mother and stepfather were rarely home. Even though they practiced there several times per

12

1649
week, one of Mr. Hilton's bandmates recalls that he only saw Mrs. Debag a few times and Mr.

Debag once. The few times that Mrs. Debag was around, she and Mr. Hilton had an unusual

relationship and would yell at each other.

The band would play at various clubs. Mr. Hilton drank and smoked marijuana after the

gigs. This was the only time Mr. Hilton really communicated normally, since the marijuana

mellowed him out.

In general, Mr. Hilton had a high opinion of himself and tried telling others how smart he

was. He did not really have friends so much as acquaintances, and he tried to be sociable but was

very socially awkward. Because of this, the band members came and went. Mr. Hilton was

critical of his bandmates, as he was with others, so a lot of the members quit.

During this time, Mr. Hilton was still upset about his home life, and at times he would

stay with other people. This included a stay an attorney who represented Mr. Hilton on one of his

juvenile charges. The attorney was a male much older than Mr. Hilton, who was around fifteen

or sixteen at the time. One of Mr. Hilton's bandmates, Roy Cave, knew that Mr. Hilton continued

to spend time with this attorney after the case was over. The three of them went to a bar one

time, and they got a motel room with two rooms afterward. Mr. Hilton stayed in the room with

the older attorney, and they had sex. When Mr. Cave confronted Mr. Hilton about this later, Mr.

Hilton explained that his attorney was giving him a place to stay and money or drugs.

Mr. Hilton eventually went on to join a more experienced band. He answered an ad in the

Miami Herald for a band that was looking for a drummer. Mr. Hilton was selected, and he

dropped out of school. He was making money and working late hours, so his mother consented.

Mr. Hilton was only sixteen, however. When the band found out, they had to let him go.

13

1650
Witnesses and evidence who were/are crucial to the foregoing:

• Lionel Sonny Hilton (Sonny)- Sonny Hilton is/was Gary Hilton's paternal half-
brother. Sonny had/bas information about his own relationship with William
Hilton, their mutual father. William deserted Sonny's family in the same way as
he did Gary Hilton. Sonny confirms that William had multiple wives and families
at once and did not contribute monetarily. (Exhibit II-A, Declaration of Hilton,
Lionel Sonny).

• Phillip Kitchen- Mr. Kitchen is a police officer familiar with William and Edna
Hilton. Officer Kitchen worked for the police department in Lexington,
Kentucky. He interviewed Edna Hilton after she shot and killed William Hilton.
Edna said she was tired of the abuse. The prosecutor did not press charges
because it was "self-defense." Officer Kitchen was already involved with
William and Edna before this. He went to their home three or four times on
domestic violence calls. Some of those times Edna had black eyes and bruises.
The police department in general were called about two to three times a year for
five years. Each time, Officer Kitchen could smell alcohol on William's breath,
and one time there were alcohol containers on the lawn. Edna also reported
William had drugs in the house. (Exhibit II-A, Declaration of Kitchen, Phillip).

• Elaine Leming- Ms. Leming is Gary Hilton's paternal half-sister. Ms. Leming
confirms that William Hilton similarly deserted her mother and siblings. She has
more extensive knowledge about William Hilton's death, including that Edna shot
him in self-defense when William was drunk. She also has knowledge that
William Hilton got hooked on prescription pills while working for a hospital in
Kentucky and had a reputation in his neighborhood for acting erratically while
drunk. Her brother Olin, another one of Gary's half-siblings, shows signs of
mental illness and becomes angry about minor things then refuses to talk to his
family for weeks or months. (Exhibit II-A, Declaration of Leming, Elaine).

• Nina Reynolds- Mr. Hilton's aunt by marriage. Nina was married to Mr.
Hilton's maternal uncle Don Reynolds before Don passed away. She had
interactions with Mr. Hilton as a child and can confirm that after Gary's father,
William Hilton, abandoned Gary and Cleo. He found another wife while still
married to Cleo, and in fact had a third wife that Cleo did not find out about until
years later. Nina can also confirm that Gary was extremely close with is mother at
that time, and Cleo took her son everywhere with her when she was not at work.
Nina only saw Mr. Hilton a few times in his teens, but he was smart and
handsome and had a life of possibilities. In the 1980s, though, she saw Mr. Hilton
and Cleo again, and Mr, Hilton was unrecognizable. He was unkempt and did not
look the same, and Cleo admitted that she thought Mr. Hilton was addicted to
drugs. Nina also has information about Don and Cleo's upbringing. Their father
beat them with a belt, and their father and stepmother would not allow them to
eat. Don had to sneak food when his stepmother was busy watching soap operas.

14

1651
 Eventually, all of the children, including Cleo, were shipped off to live with other
relatives. (Exhibit II-A, Declaration of Reynolds, Nina).

• Donald Stephen Reynolds -Mr. Reynolds is Gary Hilton's paternal cousin.

Stephen has some background information on Mr. Hilton's mother's, upbringing.
He is Cleo's brother's son. Stephen was physically abused by his own father and
believes it is because his grandfather was abusive to his children, including Cleo.
Stephen' s·grandfather kicked his children out of the house after he remarried
because his new wife did not want them. Stephen heard from other family
members that Cleo's second husband, Nilo Debag, was involved in the mob in
Argentina. (Exhibit II-A, Declaration of Reynolds, Donald Stephen).

• Kenneth Caldwell- Mr. Caldwell is Mr. Hilton's maternal cousin. He has

information on Mr. Hilton's mother Cleo, including her cold personality and lack
of affection with Mr. Hilton. He also has limited information about Mr. Hilton's
stepfather, Nilo's, and his dangerous business dealings in Argentina. He
witnessed Mr. Hilton acting strangely in a bar, when Gary was being boisterous
enough to attract attention. Gary then got mad when he noticed a man staring at
him. (Exhibit II-A, Declaration of Caldwell, Kenneth).

• Exhibit 1-B- Birth record of Mr. Hilton along with his "baby book" that is
interestingly devoid of a great deal of information.

• Exhibit 1-1- The death records of William Hilton and articles related to William
Hilton being shot and killed by his wife in Lexington, KY due to what appears to
be many of the same mental health issues manifested by Gary Hilton.

• Sandra "Sandy" Herman Carr- Ms. Carr was Mr. Hilton's high school
girlfriend. Ms. Carr can confirm that Mr. Hilton joined the military to get away
from an older man making sexual passes at him. She can attest to Mr. Hilton's
lack of close friends in high school and his tense relationship with his mom and
stepfather. Finally, she had a weird incident where Mr. Hilton looked her up
years later and talked to her on the phone for about ten minutes before suddenly
making an inappropriate sexual comment. Ms. Carr was a witness at the trial.
Ms. Carr can conftrm that there was limited and chaotic witness preparation.

• Exhibit 1-H- Mr. Hilton's school records the great number of environments he
was in, his aptitude, but more importantly the instability.

• Roy Cave- Mr. Cave was a high school and Army acquaintance. He attended
high school with Mr. Hilton, and then they were in boot camp together. He
witnessed Mr. Hilton's juvenile attorney sexually exploiting him. The three of
them stayed in a hotel room together. Mr. Cave saw the attorney engaging in
sexual acts with Mr. Hilton. When he asked Mr. Hilton what was going on, Mr.
Hilton explained that this man gave him food and money. Mr. Cave also saw Mr.
15

1652
 Hilton's tense relationship with his mom and stepfather, Mr. Hilton's inability to
make friends because of his weird personality, and his developing marijuana
addiction. Finally, Mr. Cave was a penalty phase witness, and he can confirm that
he received no preparation or guidance from the trial team despite flying in from
Oregon to testify. Of incredible significance is that the defense team had no idea
to ask Mr. Cave about Mr. Hilton's sexual exploitation by his attorney due to a
failure to investigate. (Exhibit II-A, Declaration of Cave, Roy, Exhibit 1-F, H,
454-570).

• Exhibit 1-C- Court records related to juvenile and adult criminal history.

• Exhibit I-F- Article related to shooting ofNilo Debag

• Cleo Debag- She testified by video posthumously. The defense team had little
to no knowledge of what to inquire to adequately prepare the perpetuation of
testimony.

*****************************************************************************

With no job and no high school degree, Mr. Hilton decided to join the army. He was only

seventeen, so his mother had to sign a waiver. She did so even though she still described his

behavior as "infantile"

Mr. Hilton went to go say goodbye to Ms. Herman before he left, although they had not

spoken in a while. He showed up at her school during the lunch hour. Mr. Hilton told her that he

had been staying with an older man, and that this man had been making sexual passes at him.

While he did not explain who this man was to Ms. Herman, this was likely the older attorney that

Mr. Cave had seen with Mr. Hilton. Mr. Hilton told Ms. Herman that he was starting to like it

and thought he should get away.

In the army, Mr. Hilton was able to earn his G.E.D. He also continued his passion for

drums and was assigned as the drummer while they marched. He trained as a paratrooper and

had to jump out of a plane for his graduation. During his military training, Mr. Hilton also

developed a fascination with weapons. He requested to join the Special Forces. He was in a
16

1653
secret unit, the Davie Crockett Division, which transported nuclear weapons from trucks.

Everyone in the unit had to have a high IQ to get in. Mr. Hilton still did not fit in with the rest of

his unit, though. The unit only had about fifteen members, so the rest of the guys would hang

out with each other and get to know each other. Mr. Hilton was an outcast. He would talk about

things that nobody else wanted to talk about, and he spoke very rapidly. He always wanted to

talk about how smart he was and how he thought he would eventually end up in Special Forces.

During this time, Mr. Hilton was stationed right on the border of communist Eastern Germany.

In 1967, Mr. Hilton spent four and a half weeks in the United States Army Medical

Center Psychiatric Hospital. He said he was losing interest in the military and reported hearing

voices. Eventually, Mr. Hilton was found unfit to be in the military, and he was honorably

discharged.

Mr. Hilton met his flfSt wife, Ursula, when he was in Germany. They married in 1968.

After his discharge, Ursula moved back to the United States with Mr. Hilton, and they lived in an

apartment with Mr. and Ms. Debag. They divorced in 1971 due to irreconcilable differences, and

·Ursula would later pass away of cancer in 2001.

Soon after his divorce, Mr. Hilton started dating Paulette Goldman. She introduced Mr.

Hilton to Quaaludes, and he became addicted. He confided in Ms. Goldman that his mother had

molested him when he was younger.

Mr. Hilton moved to Atlanta in 1973 where he started working as a telemarketer. A

young woman, Dina Evonne Baugh, came into the company he worked for in 1976 looking for a

job. She moved in with Mr. Hilton almost immediately. She had a son, Cameron, from a

previous marriage, and Cameron lived with them. Mr. Hilton encouraged Ms. Baugh to get her

realtor's license. When she went to get her diploma from the realtor's office, a woman passed out

17

1654
in the lobby. Mr. Hilton did not even hesitate in performing CPR on the woman. A year after

they met, Mr. Hilton and Ms. Baugh got married. He took to being a stepfather was the

homeroom dad for Cameroo's class. However, Mr. Hilton also started drinking heavily. He

started drinking to get off the Quaaludes. He would start one addiction to get over another, and

he was soon an alcoholic.

In 1977, Mr. Hilton started a company called Green Light Adverlising. He circulated

brochures that had other people's advertisements printed on them. After the starting the

company, he went to the doctor to get help for his alcoholism. The doctor prescribed Antabuse,

a medicine that is supposed to cause unpleasant effects when any alcohol is consumed.

The marriage to Ms. Baugh was short-lived, and they divorced six months after they

married. Mr. Hilton cried when he signed the divorce papers. He continued to live with Ms.

Baugh for another four months until he found somewhere else to live. Ms. Baugh kept Mr.

Hiltoo's name after the divorce.

In January 1979, Ms. Goldman came to see Mr. Hilton in Atlanta. They had not seen each

other for six years. She was still addicted to drugs. She stayed with him for a week before

leaving, and they did not see each other again after that. Mr. Hilton was an avid runner, and he

started running at Stone Mountain Park in Stone Mountain, Georgia. He fell in love with a police

officer, Sue Ellen Edwards, who worked there. They married in March 1979, two or three

months after they met. Mr. Hilton was Ms. Edwards' fourth marriage. She had two children from

a previous marriage, and Ms. Edwards thought that Mr. Hilton did a good job of walking into a

full family. They bought a house using Mr. Hilton's Veteran's Affairs loan. They divorced seven

months later, however. Even after the divorce, they continued to talk whenever Mr. Hilton was in

Stone Mountain.

18

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 Mter the divorce, Mr. Hilton moved to an apartment building in Tucker, Georgia. He met

a fifteen-year-old girl, Shawn Stewart, who lived in his building. Ms. Stewart's mother was the

building manager. Ms. Stewart was on her school's volleyball team, and she and Mr. Hilton

started running together. Mr. Hilton was also friends with Ms. Stewart's mother. Ms. Stewart saw

Mr. Hilton as a father figure. Even when she left for college a few years later, she would still stay

in touch with him over the phone.

In 1982, Mr. Hilton went with his mother to visit his maternal uncle and uncle's wife in

North Carolina. The two women went shopping, and Mr. Hilton stayed with his uncle. While

they were there, Mr. Hilton's uncle made sexual passes at him.

Mr. Hilton continued to make other friends during this time. He met Connie Wagoner in

1983, and he moved in with her and her children. Ms. Stephanie Durham Brim, Ms. Wagoner's

daughter, was about eleven when Mr. Hilton first moved in. He would spend time with her and

taught her how to shoot a bb gun. Mr. Hilton started using Quaaludes again when he was Jiving

with Ms. Wagoner. He was eccentric because he was so bubbly and over-the-top, but Ms. Brim

enjoyed having him around. When Mr. Hilton and Ms. Wagoner broke up, it was a peaceful

break and Mr. Hilton moved out. Ms. Wagoner and Ms. Brim went to visit Mr. Hilton in Atlanta

a few years later just to see how he was doing.

Mr. Hilton was still drinking heavily, and he also started using LSD, marijuana, and other

drugs. His mother refused to come visit him during that time because of his drug use. Also

around this time, Mr. Hilton started running a charity scam. He would call people asking for

donations for his charity, but he was really using the rnoney for himself. He was very good at

this, though, and able to make a living. Mr. Hilton would stop drinking for good in 1989.

19

1656
 Mr. Hilton randomly decided to reach out to his old high school sweetheart, Ms. Herman.

He called her parents'house and pretended to be an alumni of her high school or college. They

gave Mr. Hilton her home phone number. He called her one day and they had a brief ten minute

conversation where they just caught up on each other's lives. Then Mr. Hilton made an

inappropriate sexual comment, and Ms. Herman hung up on him.

In 1984, Mr. Hilton retained a lawyer, Samuel Rae!, on a minor charge. Mr. Rae! got Mr.

Hilton out of the charge, and Mr. Hilton was very appreciative. He started offering to help Mr.

Rae! file things or giving Mr. Rae! rides to his meetings. Mr. Rae! found Mr. Hilton endearing,

and the two became friends. Mr. Hilton continued to act strangely. When Mr. Rae! put his

house up for sale and had a house tour, Mr. Hilton went and made up outrageous facts about the

house. He told people that Martin Luther King, Jr. had given a speech there and that it had ties

to the Civil War. Mr. Hilton was such a good salesman that people believed him, and it was

typical for Mr. Hilton to exaggerate in this way.

Mr. Rae! and another one of his friends started working on a movie about a serial killer

up in Alaska. Mr. Hilton took an interest in the project. Mr. Rae! gave him small tasks to do

around the set. Later, Mr. Hilton tried to claim more credit for the movie.

Mr: Rae! had a dog when he became friends with Mr. Hilton, and Mf. Hilton was

wonderful with the dog. He would play with the dog and give it hugs and kisses. He would

bring around more expensive brands of dog foods for the dog. He go out and get dog food even ·

when it was snowing. That dog passed away, and around 1990, Mr. Rae! got a golden retriever

named Yuppie. Mr. Hilton treated Yuppie the same way he treated the other dog; he loved him.

When Yuppie was almost a year old, he suddenly went missing from Mr. Rae! 's backyard. Mr.

Hilton was furious and helped Mr. Rae! hang up posters around the neighborhood and search for

20

1657
the dog. They were not able to find Yuppie. Mr. Hilton also gradually stopped talking to Mr.

Rae! around this time. They went from talking every day to not talking at all. About a year after

Yuppie went missing and Mr. Hilton stopped talking to Mr. Rae!, Mr. Rae! was driving around

Atlanta when he saw Mr. Hilton out running. Mr. Hilton had a dog with him, a dog that looked

exactly like Yuppie.

Mr. Hilton continued his life with his dog, now called Ranger. Mr. Hilton was religious

about keeping up with Ranger's shots, and people who observed him during this time said that he

fawned over Ranger. Mr. Hilton took Ranger on vacation with him, including a trip to

Washington, D.C. in 1994. Mr. Hilton went to find the names of the men he had served with.

One of these men had died on his first day of service in Vietnam. Mr. Hilton found it hard to

find places that rented to dog owners. He started living in storage facilities whenever he could

not find a place.

However, Mr. Hilton was also very obsessed with his dog. He collected Rangers'fur in

Ziploc baggies and documented where the fur had been collected from. He noted the dates that

he opened and closed the Ziploc baggies. He kept a journal of Ranger's activities, down to the

date and time that Ranger would do trivial things, such as catching a balL

In 1997, Mr. Hilton was arrested. His mother and Mr. Debag had just been scammed out

of $10,000, so they did not have the money to bail him out Mr. Hilton was upset that his mother

had paid for the scam and would not pay for her own son to get out of jaiL He called his friend

Shawn Stewart, whom he was still friends with. She bailed him out

Mr. Hilton then went and got a job with John Tabor. He worked on and off for Mr.

Tabor's company, Insulated Wall Systems, for the next ten years. Mr. Hilton's job was to find

leads on people who needed vinyl siding, and Mr. Tabor would do the installation. Mr. Hilton

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lived in a house in Chamblee whenever he was working and then stayed in the storage facilities

when he was not. At other times he was homeless or lived out of his van. On April 12, 2000,

Mr. Hilton was homeless when a tornado hit Atlanta. He had to find shelter in a Motel 6 in

Norcross. He also went off into the woods to live for months.

During his time working for Mr. Tabor, Mr. Hilton had confrontations with his co-

workers and other people who worked in the area. One of his co-workers in the late 1990s, Ms.

Parrott, did what she could to avoid him because of his mood swings. He changed daily and

sometimes hourly. When he was upset, he would slam doors and start cursing. He was on the

phone trying to get leads for Mr. Tabor, and he would scream at people and hang up on them if

they refused Mr. Tabor's services. Ms. Parrott had been with the company longer than Mr.

Hilton and was supposed to train him, but he would get upset with her if she tried to correct him

on anything. Mr. Hilton also came to work high on marijuana a lot.

Another woman who worked in the area, Barbara Speed, worked in an office next to Mr.

Tabor's business for twelve years. Mr. Hilton would come in and ramble on for hours. It was

difficult for her to have a conversation with him because he would bounce around between topics

so much. Even though they did not know each other very well, he would make strange requests

of her, such as asking her to do his laundry or look up people he knew in the military. Mr. Hilton

was also very territorial. She saw him putting up barricades in the parking lot to try and block

people from parking near the building.

Ranger died in 2002. Mr. Hilton was devastated. He started looking through obituary

pages because he found comfort in reading about other people who had suffered loss. Mr. Hilton

was depressed, and he told multiple people, including mere acquaintances, that he was

contemplating suicide. He still had the bags of Ranger's fur and planned to make a blanket out of

22

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it someday. He also kept Ranger's skin and bones in a tub. He had all of Ranger's toys. He had

taken thousands of pictures.

In 2003, Mr. Hilton was still distraught over Ranger's death. He saw an ad for a golden

retriever puppy and bought Dandy. Mr. Hilton took Dandy to the same places he had taken

Ranger. He started documenting Dandy's behavior and collecting Dandy's fur in the same way

that he had with Ranger.

In the early 2000s, Mr. Hilton's mental health started deteriorating rapidly. He regularly

frequented Candler Park in the Atlanta area, and he had run-ins with other people at the park. He

would yell at people for having their dogs offleash and threaten them and/or their dogs if they

got too close to Dandy. He would get right in people's faces to yell at them. He would make

inappropriate sexual comments in front of women, and he usually chose to talk to women instead

of men. He carried around a baton, and sometimes he had a stick that he sharpened into a knife.

Some of these people were afraid of Mr. Hilton and called the police.

In 2005, Mr. Hilton became convinced that he had multiple sclerosis. He found an

endocrinologist, Dr. Harry Deicher, in the yellow pages and started going to him for prescription

medication. Dr. Deicher noted that he had multiple sclerosis, without doing the requisite testing,

and prescribed Mr. Hilton with medications like Ritalin and terazosin. He later prescribed

Etfexor. The prescription that Dr. Deicher gave to Mr. Hilton was more than three times the

dose recommended by the FDA. He started telling anyone who would listen, including

strangers, about his multiple sclerosis diagnosis. One of the people that Mr. Hilton called to tell

about his diagnosis was his ex-wife Ms. Edwards. He called her to explain that he had told his

mother about the diagnosis, and his mother had blown it off.

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 Once Mr. Hilton was on the Ritalin, his behavior became even more bizarre than before.

He became paranoid that Mr. Tabor had stolen $10,000 from him, despite the fact that Mr. Tabor

had loaned him money throughout the years which Mr. Hilton had not repaid. He and Mr. Tabor

got into arguments over the money, and Mr. Hilton left his job. He continued to contact Mr.

Tabor about the money, until finally Mr. Tabor wrote him a check for $2,500 to get him to go

away. Mr. Tabor included a strongly-worded letter with the check, so Mr. Hilton returned the

letter and tore the check in pieces. He showed up at Ms. Stewart's place of employment and

asked her for money. He was spoke even faster than he usually did. He had lost a lot of weight

and some of his teeth were missing. He told Ms. Stewart that he had quit his job and asked for

$800. She gave him the money because he had given her almost the same amount years before

without any hesitation. She was also afraid and wanted him to leave.

Mr. Hilton left to go camping then. At all three of the campsites where the crimes were

committed, witnesses described him as a bizarre man. He paced back and forth, mostly talking

only to himself, almost as if he was in a trance. When he spoke to other people, he was rambling

and changing topics very suddenly. He tried to convince people to come off the path with him.

He was frustrated and ranting about problems he had with the park. Mr. Hilton was wearing an

outdated nylon suit

After the crimes, the police were still searching for Mr. Hilton, and Ms. Stewart saw his

picture on the TV. Mr. Hilton called her for money one more time. This time, she told him no

and called the police as soon as she hung up.

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Witnesses and evidence who would be/are crucial to the foregoing:

• Paul Pruitt- seFVed in the Anny with Mr. Hilton in the 1960s. Paul was in the
elite Davy Crockett unit with Mr. Hilton for almost a year. Paul remembers Mr.
Hilton as a strange guy who did not really fit in with the rest of the men. The
others in the unit would socialize, and Mr. Hilton would not go out with them.
Mr. Hilton was very opinionated and talked constantly, almost as if he could not
stop talking. He spoke very quickly and was very fixed on his opinions. Mr.
Hilton found himself to be very intelligent and often bragged about his IQ score.
(Exhibit II-A, Declaration of Pruitt, Paul).

• Needham Bateman- Dr. Bateman was the veterinarian for Mr. Hilton's dog,
Dandy. Dr. Bateman provides insight on Mr. Hilton's bizarre behavior whenever
he brought his dog, Dandy, into Dr. Bateman's office in the mid-2000s. Mr.
Hilton was unable to sit still in the waiting room, would just show up
unannounced rather than making appoints, and had a nervous energy. (Exhibit II-
A, Declaration of Bateman, Needham).

• Pamela Burnett-: Ms. Burnett was a park acquaintance. She saw Mr. Hilton
numerous times at Murphy Candler Park between 1998 and 2004 and can attest to
Mr. Hilton's strange behavior. He would talk to himself, drive in circles around
the parking lot yelling at people, and get into verbal arguments with people about
their dogs being off leash. She called the police on Mr. Hilton a couple times, but
they always told her Mr. Hilton was harmless. He also wore camping/hiking
attire, which was unusual for a casual neighborhood park. (Exhibit II-A,
Declaration of Burnett, Pamela).

• Kay Damerow- Ms. Damerow was a park acquaintance. She saw Mr. Hilton at
Murphy Candler Park numerous times in the mid-2000s through 2007. She
recalls that he had a reputation as the "weird park guy" because he was
obsessive compulsive about his parking, wore inappropriate hiking attire to the
park; and being overly aggressive with others at the park. She and her neighbors
called the police on him because of his strange behavior, and the police assured
them that he was harmless. (Exhibit II-A, Declaration ofDamerow, Kay).

• Dr. Harry Deicher- Dr. Deicher was Mr. Hilton's doctor who prescribed the
Ritalin. Dr. Deicher can confirm that he did not follow standard procedure in
prescribing him Ritalin and explains that he did provide Mr. Hilton with a very
high dosage of Ritalin without taking into account the psychological effect. He
confirms the mental and behavioral changes he observed following the increase in
Ritalin dosage, including Mr. Hilton becoming more manic. He also witnessed a
strange episode where Mr. Hilton suddenly became upset with his dog for
virtually no reason. (Exhibit II-A, Declaration of Deicher, Harry).

25

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• Joyce Dittmer- Ms. Dittmer was a park acquaintance. She encountered Mr.
Hilton over a number of years at Murphy Candler Park. She noticed his strange
speech pattern, his excessive hiking attire, and his extreme techniques in training
his dog. As a nurse, she had some mental health training, and he came across as
manic and schizoid to her. (Exhibit II-A, Declaration of Dittmer, Joyce).

• Ronald Miller- Mr. Miller was a park acquaintance. He saw him at Murphy
Candler Park in the years before his arrest. He observed him to be constantly
agitated, only interested in a one-sided conversation, and wore strange clothes to
the park. (Exhibit II-A, Declaration of Miller, Ronald).

• Heather Parrott- Ms. Parrott was Mr. Hilton's former co-worker. She worked
for Gary in the mid- to late-1990s. She noticed Mr. Hilton's erratic mood changes,
when he would go from being fine to suddenly very mad. She was supposed to
train him, but he thought of himself as superior to her. He would get upset when
customers did not buy what he was selling, and he would scream at them.
Sometimes, he would then get off the phone and scream at her. (Exhibit II-A,
Declaration of Parrott, Heather).

• Philip Darryl Presti (Darryl)- Mr. Presti is Mr. Hilton's ex-girlfriend's son.
Darryl's mother, Connie Wagoner, dated Mr. Hilton for a couple of years in the
1980s. Darryl says that Mr. Hilton suffered from sudden mood changes where he
would suddenly become angry for no reason. He was also addicted to marijuana
and smoked constantly. Other than that, though, Mr. Hilton was very caring and
attentive toward Darryl's mother and teenaged sister, although Darryl himself did
not get along with Mr. Hilton. (Exhibit II-A, Declaration of Presti, Darryl Philip).

• Brenda Roberts Ms. Roberts is Mr. Hilton's ex-girlfriend. Brenda casually

dated Mr. Hilton back in the 1980s for about a year. She was nine years younger
than Mr. Hilton. He did not have a lot of money, and this was when he was
running his charity scam. Mr. Hilton smoked a lot' of pot with Brenda. She knew
he had been married a couple times, and she always hoped that he would not run
into one of his ex-wives who worked at a park that Brenda and Mr. Hilton often
went to. He seemed angry at his ex, but he never told Brenda why. He also never
talked to her about his family. Brenda was subpoenaed to testify at the trial. She
was told that she would be there for a day and a half at the most. Instead, she
waited for three or four days before the attorneys recorded a statement from her
and then told her to go. (Exhibit II-A, Declaration of Roberts, Brenda).

• Christa Sparks- Ms. Sparks is Mr. Hilton's ex-sister-in-law. Christa's sister,

Ursula, met Gary in Germany when Mr. Hilton was in the Army. Ursula was
from Germany, and she moved to the States to be with Mr. Hilton. Ursula
divorced him because he had developed a drug addiction and was unemployed.
Christa met him after he and Ursula had already divorced. Christa went to visit

26

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 her sister in Miami, and Ursula wanted to go check on Mr. Hilton because she
was worried about him. She warned Christa that this was not the same man she
had married. When they got there, Mr. Hilton was living in a shack with no
furniture. He was unkempt and lying on pillows on tbe floor. He was high, and
his eyes were rolling around. They only stayed a few minutes. (Exhibit ll-A,
Declaration of Sparks, Christi).

• Barbara Speed- Ms. Speed worked in an office next to Mr. Hilton's employer.
Barbara worked for a realty company right next to John Tabor's siding business,
where Mr. Hilton worked on and off for ten years. He would randomly wander
into the realty company and start chatting with Barbara. He rambled, and his
focus bounced around. Barbara did not want to talk to him, so she would just keep
working. He would not even notice that she was not paying attention to him. He
would also make strange requests of her, such as asking her to do his laundry.
This was weird because tbey were not friends. He did not seem to have any
friends. He was also very territorial and got upset when customers for Barbara's
business would park in the parking lot, even though the realty company and
Tabor's business shared a lot. He even yelled at a customer for trying to park
there once. He used construction cones to barricade certain spaces. He also used
a lot of pot around this time. (Exhibit II-A, Declaration of Speed, Barbara).

• Tom Rogers -Mr. Rogers had a strange encounter with Mr. Hilton. Tom was
hiking with his friend on Blood Mountain. The parking lot was pretty full, so
when tbey were about to leave, Mr. Hilton hurried up to tbem and asked if tbey
were leaving. When he spoke, he was intense and aggressive. When tbey did pull
their car out, Mr. Hilton got into his van and then aggressively pulled into tbe
park His hair was cropped close to his head, and his teeth were either bad or
missing. He had on hiking gear, and he had a lot of garbage bags in his van.
(Exhibit ll-A, Declaration of Rogers, Tom).

• Robert Schmidt- Mr. Schmidt had a strange encounter witb Mr. Hilton. Robert
was hiking on Blood Mountain with his wife and son on December 31, 2007
when he saw a dog coming up the trail off leash. Mr. Hilton was shortly behind
the dog. He was talking in a high pitched, squeaking voice, like he was singing a
nursery rhyme or song. Robert stepped in between Mr. Hilton and his wife and
son because it was weird, so Robert did not want Mr. Hilton around them.
(Exhibit II-A, Declaration of Schmidt, Robert).

• Karen Stansbury- Ms. Stansbury had a strange encounter witb Mr. Hilton.
Karen and her husband were at Amicalola Falls State Park in fall 2007. They
were going up a set of stairs to get to the top of the falls when they came up on
him. Karen was ahead of her husband, and he kept circling her on tbe stairs. He
was talking to himself, almost as if he was singing a nursery rhyme. He also kept
tapping her as he ran by like a child playing tag. It was very childish. (Exhibit ll-
A, Declaration of Stansbury, Karen).
27

1664
 • Exhibit 1-C- Court Records- Court records related to Mr. Hilton's criminal
offenses and the progression of them.

• Exhibit 1-D- Dissolution of Marriage- Court records and the progression of

Mr. Hilton's failed relationships.

• Exhibit 1-H- School- Mr. Hilton's school records as a young adult

• Exhibit I-A- Betty Fuentes Memos- The mitigation memos that were prepared
by the expert who was designated to develop mitigation.

• Exhibit 11-C- Dog- The information and documentation related to Mr. Hilton's
fixations and compulsions associated with his dogs.

• Exhibit 11-B- Deicher- The entire file related to Dr. Deicher's health care of
Mr. Hilton, his over-prescription of medications and his ultimate reprimand under
his medical license.

• Exhibit 11-E- Military- The entire military record of Mr. Hilton to provide a
chronology of him evidencing and manifesting detachments from reality and
major mental illness.

• Exhibit 11-D- Medical- Mr. Hilton's medical records that reflected his mental
health and his general health.

**********************************************************
Trial counsel's barebones mitigation presentation was deficient because it focused almost
entirely on the effects of the Ritalin without adequately explaining how Mr. Hilton's
background and mental impairments made him especially vulnerable to the effects of
Ritalin overdose

The undersigned counsel is not convinced that there actually was a strategy. Despite the

abundance of mitigation evidence trial counsel's mitigation specialist had uncovered, Robert

Friedman, lead counsel during the penalty phase, decided he was going to streamline the penalty

phase and call in just as many witnesses as he needed to thread the story together. Right before

the guilt phase started, Betty Fuentes, the mitigation specialist, found out that this meant not

calling Dr. Deicher, the doctor who had over-prescribed Mr. Hilton's medications. Ms. Fuentes
28

1665
quit the case at that time because of her frustration with Mr. Friedman's "strategy." She had been

working on a life history presentation. (H, 179-197, 230-266). This left two of the other team

members, attorney Paula Saunders and fact investigator Chris EHrich, to rush to complete the

presentation at the last minute.

Once the penalty phase started, Mr. Friedman "streamlined" the penalty phase by relying

mostly on expert testimony. Trial counsel obtained four expert witnesses to testify at the penalty

phase. (H, 454-570). Several crucial factors in Mr. Hilton's life were briefly mentioned once by

an expert without any kind of explanation and details, including but not limited to, the emotional

abuse that Mr.Hilton suffered at the hands of his mother and stepfather, his admission into a

psychiatric hospital, the sexual abuse he suffered as a juvenile at the hands of his attorney,

genetic disorders within the family, Mr. Hilton's history of delusions and hallucinations, and his

years-long battle with rheumatic fever when he was a toddler. All of these warranted further

detail and supporting documents, but trial counsel merely relied on experts' brief references.

Other lay witnesses filled in a few superficial details, mostly via video testimony or over

the phone. By the end of the penalty phase, the jury had not heard much of Mr. Hilton's life

history. The lackluster penalty phase presentation failed to go into: I) the multigenerational

history of mental illness in Mr. Hilton's family; 2) the stark contrast between Mr. Hilton's mother

smothering him as a young child and then neglecting him after her remarriage; 3) Mr. Hilton's

repeated attempts at self-mutilation and/or suicide dating back to age five; 4) the various physical

illnesses that affected Mr. Hilton's mind as a child; 4) his years-long battle with substance abuse

as an adult; and 5) Mr. Hilton's impaired mental state and gradual deterioration throughout his

life that left him vulnerable to the effects of Ritalin overdose. Thus, in comparison to the

29

1666
information that was available, trial counsel precluded the jury from hearing how Mr. Hilton got

to where he was by the time of the crime.

Trial counsel's performance was deficient because they did not investigate Mr. Hilton's life
history, and they failed to present this mitigating evidence that they did have

By the time of Mr. Hilton's trial in 2011, it was clearly established law that defendants in

capital cases are entitled to an individualized sentencing at the penalty phase. See e.g., Lockett v.

Ohio, 438 U.S. 586, 605 (1978) ("[A]n individualized decision is essential in capital cases.");

Woodson v. North Carolina, 428 U.S. 280, 304 ("[W]e believe that in capital cases the

fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of

the character and record of the individual offender and the circumstances of the particular

offense as a constitutionally indispensable part of the process of inflicting the penalty of death.");

Raulerson v. Wainwright, 732 F.2d 803, 806 (11th Cir. 1984); Barnes v. State, 29 So. 3d 1010,

I 025 (Fla. 201 0). This is achieved by allowing the jury to "consider all relevant mitigating

evidence." Blystone v. Pennsylvania, 494 U.S. 299,307 (1990). Necessarily, counsel in capital

cases have a duty to reasonably investigate and develop mitigating evidence and present that

evidence to the jury. See Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539

U.S. 510, 521-22 (2003); Williams v. Taylor, 529 U.S. 362, 396 (2000); Porter v. Singletary, 14

F.3d 554, 557 (11th Cir. 1994) (counsel has a "duty to investigate, develop, and present

mitigating evidence"); Spann v. State, 985 So. 2d 1059, 1069 (Fla. 2008) ("An attorney in a

capital case has a duty to investigate and present to the court and the jury, when applicable, the

mitigating evidence found to exist.").

In addition to the abundance of case law on counsel's penalty phase responsibilities,

professional norms at the time of trial were also clearly developed. The American Bar

30

1667
Association had provided multiple guidelines requiring counsel in capital cases to investigate the

client's life history "from conception to the time of sentencing," 2003 Guideline I O.ll(F)(l);

meet with potential witnesses in face-to-face, one-on-one interviews, often more than once, 2008

Guideline IO.ll(C); and hire a mitigation specialist, 2003 Guideline 4.1. This is in addition to

the general requirement that defense counsel in any case provide zealous advocacy to their

clients. Criminal Justice Standards for the Defense Function 4-1.2(b), Fourth Ed. While the ABA

standards are only guides, they may still help the courts in determining what reasonable

professional judgment was at the time of trial. See Wiggins, 539 U.S. at 524; Strickland, 466 U.S.

at 688-89.

Where trial counsel did discover certain evidence but did not present it, "then a

determination must be made whether the failure to put this evidence before the jury was a

tactical choice by trial counsel." Porter, 14 F. 3d at 557. Judicial review of counsel's

performance is "highly deferential," and courts "must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance." !d at 689.

Accordingly, "strategic decisions do not constitute ineffective assistance of counsel if alternative

courses have been considered and rejected and counsel's decision was reasonable under the

norms of professional conduct" Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).

Courts have found counsels' actions unreasonable even where the defense team did

conduct a thorough investigation of their client's background but did not present the mitigation at

trial, made an inadequate presentation, or did not prepare the witnesses to testify. This is because

the failure to present available mitigating evidence "prejudices a convicted defendant's receiving

an individualized sentence." Hardwick v. Crosby, 320 F.3d 1127, 1163 (II th Cir. 2003).

31

1668
 For example, in Cunningham v. Zant, 928 F.2d 1006 (lith Cir. 1991), the defense only

presented two witnesses in addition to their client at the penalty phase. !d. at 1016. The lawyers

in the case did not interview these witnesses until the day before and the day of trial, and they

spoke only for a few minutes. !d. at I 017. Once one of the witness took the stand, they only

asked him six questions. !d. At an evidentiary hearing on state post-conviction, it was revealed

that the witness had much more information than had been asked at trial. !d. A head injury the

defendant had suffered was mentioned "only in passing." !d. at I 018. Trial counsel completely

avoided other topics, such as the defendant's intellectual disability. !d. The Eleventh Circuit

found that this undermined "[t]he primary purpose of the penalty phase ... to insure that the

sentence is individualized by focusing the particularized characteristics of the defendant" and

granted penalty phase relief. !d. at 1019.

Similarly, the Florida Supreme Court vacated a death sentence in Parker v. State, 3 So.

3d 974 (Fla. 2009), where the defense presented a "bare bones" penalty phase and presented the

defendant's life history through the secondhand testimony of defense team investigators rather

than firsthand witness accounts. See id. at 984-85. At first glance, evidence presented during

Parker's penalty phase touched on many of the mitigation themes often found compelling:

These witnesses testified that Parker's childhood was chaotic and dysfunctional. His

father abandoned the family when Parker was only a few months old; his mother was frequently

hospitalized for serious mental problems; he spent his childhood in a series of foster homes; he

was physically and sexually abused; and he has a long history of alcohol abuse and violent

behavior. !d. at 983-84. During the Rule 3.851 evidentiary hearing, however, more details were

provided to support these broader themes. For example, the mother's "serious mental problems"

were actually an ongoing battle with schizophrenia for which she was repeatedly hospitalized.

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!d. at 984. The sexual abuse that had briefly mentioned at trial was at the hands of caretakers and

older children in the community. !d. Moreover, this information came from the actual witnesses

rather than the secondhand testimony of defense investigators. !d. The Florida Supreme Court

found this "fleshed out" evidence should have led to further investigation and been presented at

the trial. See id. at 985. Thus, it is not enough that counsel conduct an investigation and present

a brief summary of a client's life history. The failure to actually present that life history in a

manner that resonates with the jury and provides meaning to the right to individualized

sentencing is deficient.

Here, trial counsel's performance was deficient. Much like Cunningham and Parker, the

pre-trial investigation revealed a number of themes for the defense to go into during the penalty

phase, including: I) the multi generational history of mental illness in Mr. Hillen's family; 2) the

stark contrast between Mr. Hilton's mother smothering him as a young child and then neglecting

him after her remarriage; 3) Mr. Hilton's repeated attempts at self-mutilation and/or suicide

dating back to age five; 4) the various physical illnesses that affected Mr. Hillen's mind as a

child; 4) his years-long battle with substance abuse as an adult; and 5) Mr. Hilton's impaired

mental state and gradual deterioration throughout his life that left him vulnerable to the effects of

Ritalin overdose. However, trial counsel did not present evidence on any of these subjects,

choosing instead to cursorily summarize Mr. Hiltcn's childhood and focus on his head injury

after the Murphy bed incident and the effects of the Ritalin overdose.

Trial counsel completely failed to investigate some major areas altogether. For example,

they never did a multigenerational review of mental illness in Mr. Hillen's family. See 2008

ABA Guideline IO.ll(E)(2)(a) (recommending review extending at least three generations back).

33

1670
They also failed to investigate Mr. Hilton's time in the military and the effect this had on him

mentally.

Rather than calling the lay witnesses who had firsthand accounts about Mr. Hilton's life,

trial counsel relied heavily on experts to present this information. However, trial counsel had not

provided their experts with relevant background materials so that the experts could conduct an

accurate examination of Mr. Hilton's mental health history. They did not provide the experts

with a multigenerational mental and physical health history for Mr. Hilton's relatives. During

discovery, the defense had received Georgia Bureau of Investigation photos documenting Mr.

Hilton's obsession with his dogs, including a plastic container holding his deceased dog's

remains; Ziploc baggies filled with years of fur he had collected from both dogs as well as

documentation of where and when it had been collected; and detailed journals noting mundane

activities, such as fetching a ball. The experts did not receive this clear evidence of mental

illness and were unable to consider it in their assessment of Mr. Hilton. Consequently, the

experts made vague passing comments to just a few of the traumatic events in Mr. Hilton's life,

and they focused mostly on the Murphy bed incident and the Ritalin prescriptions.

Despite trial counsel's reliance on their experts, they failed to prepare their experts before

the penalty phase. One expert, Dr. Wu, testified to Mr. Hilton's exaggerated participation in the

making of a movie. He testified that he believed this claim to be false and that it demonstrated

Mr. Hilton's grandiosity. R, Penalty Phase, 122. In reality, the movie in question, Deadly Run,

existed, and trial counsel had succeeded on a motion in limine to prevent mention of the violent

film that was produced twelve years before the crimes. After Dr. Wu's mistake, the State's expert

was able to go into the violent nature of the film, testify to its similarities to Mr. Hilton's crimes,

and tell the jury that Mr. Hilton actually had assisted in the making of the film. Trial counsel

34

1671
missed an opportunity to remedy the situation by failing to call Mr. Hilton's friend Samuel Rae!.

Mr. Rae! produced the film, and he would have been willing to testify that Mr. Hilton had a very

minor role of running errands around the set, that he became involved in the film after the script

had already been written, that the story was based on a case up in Alaska, and that the crimes in

the movie bore no resemblance to Mr. Hilton's crimes beyond the fact that they took place in the

woods. The failure to prepare Dr. Wu or fix his blunder with Mr. Rae! 's testimony allowed more

aggravating evidence against Mr. Hilton and affected Dr. Wus credibility. Finally, trial counsel

called Dr. Strauss to testify to Dr. Deicher's unethical behavior in over-prescribing Mr. Hilton.

Because trial counsel had not properly vetted Dr. Strauss before hiring him, however, they did

not know that Dr. Strauss himself had been subjected to disciplinary action for unprofessional

prescription practices. SeeR, Penalty Phase, 265. Because trial counsel relied on these experts

to get in mitigating evidence about Mr. Hilton, the experts' decreased credibility reduced the

credibility of the life history they testified to.

Moreover, trial counsel did not make use of the witnesses they called. Roy Cave was

definitely available at the time of trial, as he was one of the witnesses who testified. However,

the defense merely asked him about his time in the band and boot camp with Mr. Hilton. See R,

Penalty Phase, 518-21. In reality, Mr. Cave had witnessed the older male attorney coercing the

sixteen-year-old Mr. Hilton into having sex with him, had information about Mr. Hilton's bizarre

behavior even as a teen and his inability to make real friends, Mr. Hilton's substance use at such

a young age, and Mr. Hilton's rocky, argumentative relationship with his mother that left him in a

sullen mood almost all of the time. Trial counsel also called Ms. Sandy Herman, who dated Mr.

Hilton briefly in high schooL SeeR, Penalty 513-17. They asked her about how kindly he had

treated her in high school but did not ask her about Mr. Hilton's decision to join the army

35

1672
because of the strange relationship he had with an older male who was "propositioning" him for

sex, or Mr. Hiltoo's random decision to find her years after they had last seen each other and

sudden inappropriateness with her during that phone call. This information would have been

relevant to establishing Mr. Hilton's long history of mental illness and how vulnerable his mental

state was even before the Ritalin, but trial counsel simply did not present the evidence.

Finally, trial counsel elicited testimony that Mr. Hilton had diagnosed himself with

multiple sclerosis, see e.g., T. Penalty Phase, 120, but they never actually confirmed whether or

not he had it. They failed to do so despite the fact that multiple sclerosis testing could have

helped the defense no matter the result. Multiple sclerosis is a neurological disease and could

have affected Mr. Hilton's mental state. Alternatively, if Mr. Hilton did not have multiple

sclerosis, then he was exhibiting paranoia and frustration about a disease that he did not have, at

times even confronting complete strangers about his diagnosis.

By ignoring much of Mr. Hiltoo's history, the jury was unable to understand that Mr.

Hilton was in a vulnerable position mentally for much of his life rather than just after he started

using Ritalin, making him that much more susceptible to the effects of Ritalin abuse and

overdose. This nuance was especially important when Ritalin is a well-known drug, and the

jurors likely associated its use with helping to calm down children suffering from attention

disorders. The jury would not have understood its impact on a mentally vulnerable adult who

became more manic after its use. Trial counsel's failure to make this clear fell below an

objective standard of reasonableness and amounted to deftcient performance.

Mr. Hilton was prejudiced by trial counsel's deficient performance.

Mr. Hilton must also show that he was prejudiced by trial counsel's deficient

performance. Strickland, 466 U.S. at 687. Prejudice exists where "there is a reasonable

36

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probability that, but for counsefs unprofessional errors, the result of the proceeding would have

been different." Jd at 694. In reaching a determination on prejudice, courts have looked not just

at the actual death sentence imposed, but also whether or not certain mitigating factors were

rejected, whether the evidence would have rebutted certain aggravating factors, and whether

reviewing courts relied on the lack of evidence to affirm the conviction. For example, in Parker,

the Florida Supreme Court reviewed new evidence presented during the Rule 3.851 evidentiary

hearing and noted that on direct appeal, it had affirmed the trial court's finding of no mitigating

factors because there had not been sufficient evidence to support such a finding. Parker, 3 So. 3d

at 984.

Here, Mr. Hilton was prejudiced by trial counsel's deficiencies in not presenting

compelling, readily-available mitigation evidence. Mr. Hilton has suffered from severe mental

illness for most of his life, but the trial court rejected the statutory mitigating factor that Mr.

Hilton was substantially impaired and could not conform to the requirements of the law, and it

rejected the non-statutory mitigating factor that he suffered from severe mental defects. Despite

the fact that Mr. Hilton's mother made only $1.00 an hour and $25.00 per month and could not

afford an apartment for herself and her son, the trial court rejected the mitigating factor that Mr.

Hilton grew up financially poor. This is because while trial counsel quickly glazed over these

aspects of Mr. Hilton's life, they did not provide the necessary details to actually prove these

mitigating factors. This resulted in the court finding three fewer mitigating factors than actually

existed, and Mr. Hilton was prejudiced by the resulting death sentence.

Indeed, the defense's failure to present a fuller picture of Mr. Hilton's life history actually

assisted the State s rebuttal presentation. Because the penalty phase defense suggested that the

Ritalin was the major catalyst for change in Mr. Hilton's behavior and he had been fine before

37

1674
that, the State was allowed to call Dr. Prichard to testify about Mr. Hilton's prior uncharged

offenses, including soliciting money for charity only to keep it himself and the unproven hearsay

allegations that Mr. Hilton had inappropriately touched his ex-girlfriend's daughter. The trial

court admitted this testimony, specifically stating: And I understand that there were a whole lot

of things that came out in the expert's testimony that normally would be, you know, verboten, I

mean- just couldn't do.

But, the whole theme of the defense expert's testimony was that Mr. Hilton never did

anything wrong until these murders, and that it was a sudden change in his life created by Ritalin

that brought about- it was based on, you know, these medical problems compounded by his

brain damage. And I think that just kind of opens the door. I think the State has the right to

contest that this is in fact the situation. T, Penalty Phase, 520. Thus, unlike in other cases where

courts have found trial counsel's decision not to introduce mitigating evidence because of the

possibility of opening the door to harmful rebuttal evidence, see, e.g., Douglas v. State, 141 So.

3d 107, 121 (Fla. 2012), here, trial counsel'sfailure to present more expansive mitigating

evidence allowed this harmful evidence to come in. This prejudiced Mr. Hilton not only during

his penalty phase, where this evidence effectively rebutted the mitigation presented, but also on

direct appeal. The Florida Supreme Court affirmed the trial court's admission of Dr. Prichard's

testimony because "Hilton's penalty phase defense relied heavily on the assertion that Hilton was

a Jaw-abiding citizen prior to his exposure to Ritalin. Dr. Prichard's testimony was provided in

rebuttal to that assertion." Hilton v. State, 117 So. 3d 742,751 (Fla. 2013). Mr. Hilton was

doubly prejudiced by trial counsel's deficient performance, and he is entitled to a new penalty

phase.

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Claim 2: Trial counsel was ineffective because the defense team was in complete
disarray, due to inconsistent preparation, a fractured and divisive team,
unreasonable caseloads, and the unreasonable strategic decisions that
resulted.

Many of the problems before and during the trial were a consequence of the chaotic

nature of the defense team assigned to Mr. Hilton'scase. Throughout its representation of Me

Hilton, the team engaged in eruptive team feuding and undermined each other's strategies. This

led to the repeated shifting of roles, including in the weeks leading up to trial. This chaos reached

its peak when two of the team members withdrew from the case in the middle of the trial. The in-

fighting prevented them from providing the competent assistance of counsel required by the

Sixth and Fourteenth Amendments. Moreover, the high case load at the Public Defender's Office

at the time also affected trial counsel's ability to effectively represent Mr. Hilton. Accordingly,

Mr. Hilton is entitled to a new trial.

1. Trial counsel was ineffective due to the divisive nature of the defense
team.

When the Public Defender's Office was first appointed to represent Mr. Hilton, the office

assigned a standard team to the case: Ines Suber as lead counsel, Steven Been as second chair,

Betty Fuentes as mitigation specialist, and Chris EHrich as fact investigator. They started

receiving discovery, and Mr. Been soon left the division because he could no longer tolerate Ms.

Suber. (H, 431-451) This began a revolving door of attorneys. Robert Friedman was brought in

from the appeals unit to help out. Tracy Record came in as second chair, but she left the unit

within a couple months because she could no longer tolerate Ms. Suber. (H, 346-360). Nicole

Jamieson and Merribeth Bohanon, two other young attorneys in the office, helped out with

projects that came up.

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 It became quickly apparent that this case needed to focus on the guilt phase. Ms. Suber

had successfully negotiated plea deals with the State in the past, but such an outcome was not

likely in this case. She continued to try and focused a lot of energy and resources on going

through the physical evidence and consulting with forensic experts. In the meantime, Ms.

Fuentes started an expansive mitigation investigation that would ultimately result in her speaking

with over 300 witnesses.

As the discovery came in, Ms. Suber did not allow anyone else to have a full picture of

the case. She selected which team members got to go review the physical evidence, mostly

relying on Ms. Fuentes. Other team members made copies of what they did have, but there was

no structure or organization, and no one person other than Ms. Suber knew everything about the

case. As a result, many documents were lost or overlooked. The State started requiring the

defense team to sign a log whenever the prosecutors disclosed evidence after the third or fourth

time that the defense claimed not to have received discovery that had previously been disclosed.

Ms. Suber continued to focus on combating the forensic evidence, and the other team

members started to disagree with her. Ms. Suber was also working long hours and had difficulty

with anxiety, stress and sleeping. Other members of the team reported getting em ails from Ms.

Suber in the middle of the night, between 2:00 and 4:00 a.m. This happened on a regular basis,

and the emails were often rambling and vitriolic; she would chastise them for things they had and

had not done. Many of the team members were concerned that Ms. Suber was under the

influence of drugs and/or alcohol during the pendency of the case as well as potentially in court

proceedings. (State's Exhibit 1, H, 11-50, H, 271-324, H, 346-451, H, 454-570). There was also

little communication with Mr. Hilton about the reality of the case against him. Mr. Friedman was

permanently brought into the team. He was supposed to serve as Ms. Suber's second chair in the

40

1677
guilt phase, and then in the penalty phase, Mr. Friedman would serve as lead counsel and Ms.

Suber would be second chair.

Several of the members of the team went to talk to Nancy Daniels, the Public Defender.

They were concerned that Ms. Suber was wasting all her time and energy on the guilt phase, and

that she was going for a futile innocence strategy. Ms. Fuentes had already uncovered the

evidence of Mr. Hilton's downfall after becoming addicted to the Ritalin, and she thought that

they should incorporate that into the guilt phase. Then, even if it did not work to clear Mr.

Hilton of first- degree murder, it would lay the groundwork for the penalty phase. Ms. Daniels

suggested that they recommend this strategy to Ms. Suber, but Ms. Suber rejected this strategy.

Ms. Fuentes was so upset by this that she threatened to quit. Ms. Daniels, and others in the

office, requested her to stay and continue to help. They also reminded her that her place on the

team was as an investigator, and that she needed to do what the lead attorney asked.

In the summer of 2010, about six months before the trial was supposed to start, the team

was confident in getting a continuance. Ms. Suber had already booked a five week trip home to

visit her family, a trip she took every December. Right before they filed the continuance motion,

however, the case changed judges. Judge Hankinson denied the continuance, and they only had a

few months left to get their case together.

This caused a complete breakdown in the team. Ms. Suber was devastated that she would

not get to take her trip. She actually tried to go on a five-week trip anyway, but Ms. Daniels told

her she could not take such a long leave before this trial. The case was also not even close to

having a complete investigation. They had started on the minor motions and met with minor

witnesses, but they had not started reaching out to the more significant guilt phase witnesses yet

41

1678
at all. Plus, there was still the argument over whether they should present some kind of mental

impairment defense or one of innocence.

Once it was clear that the team was not working together, Ms. Daniels put Ms. Suber

solely in charge of the guilt phase and Mr. Friedman solely in charge of the penalty phase. Ms.

Daniels also brought in Paula Saunders from the appeals unit. Ms. Saunders had worked

smoothly with Ms. Suber in the past, and Ms. Daniels thought that it would help Ms. Suber from

feeling ganged up on. The remaining junior attorney, Ms. Bohanon, started off doing tasks for

both but ultimately focused on the penalty phase.

After this shift, the team was completely fractured. Ms. Saunders ultimately agreed with

Mr. Friedman, and she started working on pretrial motions and the penalty phase. Furthermore,

Ms. Suber felt that Ms. Saunders was there to get her spot on the case, so she did not trust Ms.

Saunders. Meanwhile, Ms. Saunders hoped that Ms. Suber would be able to keep going because

Ms. Saunders did not know enough about the case to take the lead in the guilt phase if Ms. Suber

got pulled from the team. Both sides developed their phases individually. They did not invite

each other to meetings, and they did not collaborate on a theme. Going into trial, the defense

team did not have a united strategy.

The problems did not dissipate once the trial started. During jury selection, some

members of the team were upset because Ms. Suber requested more peremptory challenges

because of the mass amount of media attention, but then when the court granted them, she did

not use them to get people off of the case. Ms. Suber and Ms. Saunders argued various pretrial

motions, and Ms. Suber was ill-prepared and stumbling in court. She admitted as much, saying

multiple times on the record that they were not prepared to proceed to trial. Once, she even

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1679
arrived late. Other members of the team were shocked because Ms. Suber had been a great trial

lawyer in the past and was usually eloquent in her arguments to the court

Once the guilt phase started, the consequences of having fractured phases really showed.

Ms. Suber introduced evidence that the penalty phase lawyers would have preferred stayed out

Most importantly, she relied on the fully adversarial innocence defense. She challenged the

overwhelming forensic and physical evidence, ignoring the fact that even if the jury ruled out

one piece, there was still so much left to consider. Ms. Suber also objected to minor issues,

coming off as overly combative. At one point, one defense counsel objected to another defense

counseL Ms. Suber continued her bumbling presentation that had started in the pre-trial motions.

If possible, the penalty phase was even more chaotic. Shortly before the guilt phase,

Robert Friedman, lead counsel during the penalty phase, had mentioned to Andy Thomas, then

Deputy Public Defender, that he was going to streamline the penalty phase and call in just as

many witnesses as he needed to thread the story together. Right before the guilt phase started,

Betty Fuentes, the mitigation specialist, found out that this meant not calling Dr. Deicher, the

doctor who had over-prescribed Mr. Hilton's medications. Ms. Fuentes quit the case at that time.

She had been working on a life history presentation, so Ms. Saunders and Mr. EUrich had to

complete the presentation.

Ms. Bohanon returned to court the next day to realize that nobody had informed Mr.

Hilton that Ms. Fuentes was no longer with the team, despite the fact that he was closer to Ms.

Fuentes than to anyone else on the defense team. Mr. Friedman and Ms. Saunders then told Mr.

Hilton that Ms. Fuentes was overworked and had had a breakdown. Ms. Bohanon told Mr.

Hilton that Ms. Fuentes had a strategic difference with the others and that she had left, so Ms.

Saunders asked her to leave the courtroom. Ms. Saunders accused Ms. Bohanon of undermining

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1680
the relationship with the client. She also believes she heard Ms. Bohanon telling Mr. Hilton that

they were providing ineffective assistance of counsel. This defeated the months of work they had

put into cultivating a relationship with Mr. Hilton, and Ms. Bohanon was banned from the

courtroom. She filed a motion to withdraw shortly thereafter.

Once the penalty phase started, Mr. Friedman "streamlined" the penalty phase by relying

mostly on expert testimony. The experts made vague passing comments to just a few of the

traumatic events in Mr. Hilton's life, and they focused mostly on the Murphy bed incident and

the Ritalin prescriptions. Other lay witnesses filled in a few superficial details, mostly via video

testimony or over the phone. Similar to the guilt phase, several of the witnesses testified to things

that the defense had successfully fought to keep out during the guilt phase. This inability of the

defense team to work as a unit on the case resulted in the defense team's deficient performance.

Because the team could not get along and multiple members left the capital unit while the case

was still going, those representing Mr. Hilton did not have time to review the entire case file.

Other than Ms. Suber, no one on the team saw the entire file because she was possessive about it

and would not let them see it. The constant rotation of team members left the ftles disorganized,

so no one knew where anything was. Some members, such as Ms. Sanders, were appointed to

the case right before trial, and others, namely Ms. Fuentes and Ms. Bohanon, left abruptly in the

middle of trial so that the other members had to quickly step in and perform their work without a

full understanding of the case. This division caused multiple mishaps at trial. The team members

working on the guilt phase had no idea what the team working on the penalty phase was doing.

The penalty phase team later felt that evidence was introduced in the guilt phase that they would

have preferred not to have before the jury. Then, as explained above in Claim l, in the penalty

44

1681
phase, a defense expert in the penalty phase bringing up evidence that guilt phase counsel had

successfully kept out through a motion in limine.

All of this chaos was not the effective assistance of counsel required by the Constitution.

Trial counsel's performance was deficient and prejudiced Mr. Hilton, see Strickland, 466 U.S. at

687, because he did not have a defense team that agreed on and united around a strategy, and

trial counsel was making decisions about the case without knowing all of the relevant

information. Accordingly, Mr. Hilton is entitled to a new trial.

Trial counsel was ineffective because they had an excessive workload at the time of Mr.
Hilton's trial, which prevented them from dedicating the necessary time and resources to
his case.

The defense team was not working on Mr. Hilton's case in a vacuum, and the Public

Defender's Office had several other high profile cases at the same time. The capital unit at the

time comprised of Ms. Suber as lead counsel and whomever the Office appointed as her co-

counsel. Ms. Fuentes was the mitigation specialist, and Mr. EHrich was the fact investigator.

These four were expected to handle all of the capital cases in the Second Judicial Circuit. At the

time, this included the Rachel Hoffman murder, another case that garnered extensive media

coverage and included a wrongful death civil suit. Another case the office had at the same time

as Mr. Hilton's case was out on St. George's Island, so the team had to drive nearly two hours out

of Tallahassee to meet with witnesses on that case. Ms. Bohanon and Ms. Jamieson were both

involved in that case. Another one of the cases involved an intellectual disability claim, so the

Office expended many resources on the development of that case. Under this pressure, trial

counsel requested multiple continuances once the trial started, all of which were denied.

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1682
 This highly centralized workload onto such a small unit prevented the team from

focusing as much attention on Mr. Hilton's case as they needed to. The Florida Supreme Court

"has repeatedly recognized that excessive caseload in the public defender's office creates a

problem regarding effective representation." Public Defender, Eleventh Judicial Circuit ofFla. v.

State, 115 So. 3d 261, 282 (Fla. 2013). This is because "[w]hen excessive caseload forces the

public defender to choose between the rights of the various indigent criminal defendants he

represents, a conflict of interest is inevitably created." In re Order on Prosecution of Criminal

Appeals by Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1135 (Fla. 1990). Indeed,

the Florida Rules Regulating the Florida Bar allow for counsel to withdraw from a case when

"there is substantial risk that the representation of I or more clients will be materially limited by

the lawyer's responsibilities to another client or a third person or by a personal interest of the

lawyer." Rule 4- 1.7(a)(2). Both trial counsefs failure to make use of this rule and the

inadequate representation they provided as a result were deficient performance and prejudiced

Mr. Hilton. See Strickland, 466 U.S. at 687. The high workload prevented counsel from

interviewing all of the witnesses they needed to by the time the trial started, and they failed to

review all of the documents in the case. Indeed, they overlooked a report by a correctional officer

who overheard Mr. Hilton confessing to the crime to another prisoner and thus were surprised by

his testimony at trial. Up until that point, trial counsefs defense strategy had been that the State's

case was based on circumstantial evidence. The correctional officer's testimony completely

undermined their strategy, and had they not overlooked the witness, they would have pursued a

more sensible defense or at least would have been prepared to rebut his testimony. This

constituted ineffective assistance of counsel, and Mr. Hilton's conviction and sentence should be

vacated.

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Claim 3: Trial counsel was ineffective for failing to present a cohesive, united defense
in the guilt and penalty phases.

Trial counsel spent a majority of the guilt phase futilely trying to combat the

overwhelming forensic evidence in this case. Trial counsel's defense strategy was that the State's

case was merely circumstantial, and at some points they even suggested that witnesses had

identified someone else as the main suspect. See, e.g., R, Guilt Phase, 1533 (during closing

argument, Ms. Suber reminds the jury that witness testimony identified a taller man in his 40s

rather than Mr. Hilton as the perpetrator). Then, in the penalty phase, they presented evidence

that Mr. Hilton had committed this crime because he had a mental breakdown after Dr. Deicher

over-prescribed him Ritalin. See, R, Penalty Phase 123 (Dr. Wu testifies that Mr. Hilton "was

never violent until he started to get on Ritalin."). Because trial counsel presented a guilt phase

defense that contradicted the penalty phase defense, trial counsel rendered ineffective assistance

of counsel and Mr. Hilton is entitled to a new trial.

As previously explained in Claim 2, a majority of the defense team wanted to present a

guilt phase defense that Mr. Hilton was affected by the over-prescription of Ritalin. This would

have been much more reasonable than the denial of guilt the defense actually presented. Indeed,

this is the strategy recommended by the ABA Guidelines. See 2003 Guideline 10.10.1 ("[T]rial

counsel should formulate a defense theory. Counsel should seek a theory that will be effective in

connection with both guilt and penalty, and should seek to minimize any inconsistencies.").

However, Ms. Suber insisted that they go with an adversarial approach and try to undermine all

of the forensic evidence, despite the fact that the evidence in this case was overwhelming and

that even if she succeeded in diminishing one type of evidence, there was still an abundance of

evidence to establish Mr. Hilton's guilt. Trial counsel's decision to deny Mr. Hilton's guilt in the

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1684
guilt phase and then completely change messages and blame the Ritalin in the penalty phase

diminished their credibility before the jury during the penalty phase.

The Florida Supreme Court has refrained from finding ineffective assistance of counsel

where a defendant asserted that trial counsel should have presented mitigating evidence when

that mitigating evidence was inconsistent with the guilt phase theory. See, e.g., Blanco v. State,

963 So. 2d 173, 179 (Fla. 2007) (denying an ineffective assistance of counsel claim because "the

mitigators Blanco argue[ d] should have been presented at his penalty phase [were] inconsistent

with his theory of the case: that he is innocent of [the] murder"). It stands to reason, then, that it

does constitute ineffective assistance of counsel for trial counsel to knowingly present

inconsistent guilt and penalty phases. Here, that is just what trial counsel did, and their

representation was ineffective. Mr. Hilton is entitled to a new trial under Strickland. See

Strickland, 466 U.S. at 687.

Claim 4: Defendant's death sentence violates Hurst v. Florida and Hurst v. State

Mr. Hilton's death sentence violates Hurst v. Florida and Hurst v. State. In Hurst v.

Florida, the United States Supreme Court held that Florida's capital sentencing scheme violated

the Sixth Amendment because it required the judge, not the jury, to make the findings of fact

required to impose the death penalty under Florida law. 136 S. Ct. at 620-22. Those findings

included: (1) the aggravating factors that were proven beyond a reasonable doubt; (2) whether

those aggravators were "sufficient" to justify the death penalty; and (3) whether those

aggravators outweighed the mitigation. Florida's unconstitutional scheme first required an

advisory jury to render a generalized sentencing recommendation for life or death by a majority

vote, without specifying the factual basis for the recommendation, and then empowered the

sentencing judge alone, notwithstanding the jury's recommendation, to conduct the required fact-

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finding. ld at 622. The Supreme Court held that before making its recommendation, the jury, not

the judge, must make the findings of fact required to impose the death penalty under Florida law.

!d.

In Hurst v. State, the Florida Supreme Court held that, in addition to the principles

articulated in Hurst v. Florida, the Eighth Amendment also requires unanimous jury fact-finding

as to (1) which aggravating factors were proven, (2) whether those aggravators were "sufficient"

to impose the death penalty, and (3) whether those aggravators outweighed the mitigation. 202

So. 3d at 53-59. The Court made clear that each of those determinations are "elements" that

must be found by a unanimous jury beyond a reasonable doubt. !d. at 57; see also Jones v. State,

No. SC14- 990, 2017 WL 823600, at *16 (Fla. Mar. 2, 2017). In addition to rendering

unanimous findings on each of those elements, the Court explained that the jury must

unanimously recommend the death penalty before a death sentence may be imposed. Hurst v.

State, 202 So. 3d at 57 ("[B]efore the trial judge may consider imposing a sentence of death, the

jury in a capital case must unanimously and expressly find all the aggravating factors that were

proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to

impose death, unanimously find that the aggravating factors outweigh the mitigating

circumstances, and unanimously recommend a sentence of death."). The Court further cautioned

that, even if the jury unanimously found each of the elements required to impose the death

penalty satisfied, the jury was not required to recommend the death penalty. ld. at 57-58 ("We

equally emphasize that ... we do not intend to diminish or impair the jury's right to recommend a

sentence of life even if it finds the aggravating factors were proven, were sufficient to impose

death, and that they outweigh the mitigating circumstances.").

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1686
 The Florida Supreme Court also ruled that Hurst claims must be subjected to

individualized hannless error review, and that the burden is on the State to prove, beyond a

reasonable doubt, that the Hurst error did not impact the sentence. !d. at 67-68. If the State is

unable to make that showing, this Court should vacate the death sentence.

Because Mr. Hilton's death sentence violates Hurst v. Florida and Hurst v. State, and

those decisions are retroactive to him, Mr. Hilton should be granted relief from his death

sentence unless the State can prove that the Hurst error was "hannless beyond a reasonable

doubt." In the Hurst context, the Florida Supreme Court has defined "harmless beyond a

reasonable doubt" as "no reasonable probability that the error contributed to the sentence." Hurst

v. State, 202 So. 3d at 68.

The Florida Supreme Court has repeatedly held that the burden is on the State to prove,

beyond a reasonable doubt, that the Hurst error did not impact the Mr. Hilton's death sentence.

See Jd at 67-68 ("[T]he burden is on the State, as the beneficiary of the error, to prove beyond a

reasonable doubt that the jury's failure to unanimously find all the facts necessary for imposition

of the death penalty did not contribute to [the] death sentence."). The "State bears an extremely

heavy burden" in this context. !d at 68. A court's finding that a Hurst error was harmless will be

"rare." King v. State, No. SC14-1949, 2017 WL 372081, at *17 (Fla. Jan. 26, 2017).

The Florida Supreme Court has indicated that a unanimous jury recommendation is a

factor in Hurst hannless error analysis, but not necessarily a dispositive factor in every case. The

Court has emphasized this principle on several occasions. In Hall v. State, the Court stated that a

jury's unanimous recommendation "lays a foundation for us to conclude beyond a reasonable

doubt" that the Hurst error was harmless, and then assessed other hannlessness factors, such as

the "egregious facts" of the case, reflecting a traditional hannless error analysis that evaluated the

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aggravation and mitigation. No. SC15-1662, 2017 WL 526509, at *22-23 (Fla. Feb. 9, 2017)

(emphasis added). Again in King v. State, the Court emphasized that the unanimous

recommendation was not dispositive, but rather "begins a foundation for us to conclude beyond a

reasonable doubt" that the Hurst error was harmless. 2017 WL 372081, at *17 (emphasis added).

In Woodv. State, No. SC15-954, 2017WL411336,at*l3 (Fla. Jan. 31, 2017), the Court

indicated that a Hurst error in a unanimous-recommendation case would-if the case were not

already being remanded for imposition a life sentence on proportionality grounds-require a

remand for a new penalty phase because the jury had been instructed to consider inappropriate

aggravators.

The Hurst error in Mr. Hilton's case should not be ruled harmless beyond a reasonable

doubt, not only due to the problems inherent in using the advisory jury's recommendation to infer

what fact-finding would have occurred in a constitutional proceeding, but also because the

circumstances of this case reflect, more other unanimous-recommendation cases the Florida

Supreme Court has addressed, a reasonable probability that the Hurst error impacted the

sentence.

In Mr. Hilton's case, the court found the following mitigating factors: (1) Hilton was

under the influence of extreme mental or emotional disturbance at the time of the crime; (2)

Hilton grew up in an emotionally abusive and neglectful home; (3) Hilton abused drugs,

including Ritalin, over a long period of time; (4) Hilton had no relationship with his biological

father; (5) Hilton is already serving a life sentence; (6) Hilton served his country in the military;

(7) Hilton suffered maternal deprivation and lacked bonding of a mother and child; (8) Hilton

was placed in foster care as an adolescent; and (9) Hilton suffered traumatic brain injury as a

child. Given this mitigation, there is a reasonable probability that at least some jurors in a

51

1688
constitutional proceeding, having been properly advised of their role as fact-finder in deciding

whether to sentence Mr. Hilton to death, would have decided that the death penalty should not be

imposed.

The jury's unanimous recommendation in Mr. Hilton's case also does not account for the

likelihood that defense counsel's approach to diminishing the weight of the aggravating factors

and presenting mitigation at the penalty phase would have been different had counsel known that

the jury, not the judge, would be required to unanimously agree on each of the elements required

to impose the death penalty. The impact of the unconstitutional scheme may have begun as early

as jury selection for the penalty phase. Counsel may have conducted his questioning of

prospective jurors differently had he known that only one juror needed to be convinced, as to

only one of the required elements, in order for Mr. Hilton to avoid a death sentence. During the

penalty phase itself, defense counsel's approach may have been different had the jury, rather than

the judge, been required to unanimously find that each specific aggravating factor had been

proven beyond a reasonable doubt. Indeed, in a constitutional proceeding, defense counsel may

have successfully diminished or eliminated some aggravators.

Defense counsel's approach may also have been different had the jury, as opposed to the

judge, been required to unanimously make the "sufficiency" and "insufficiency" findings

regarding the aggravating factors. In addition, counsel's approach to the mitigation may have

differed in a penalty phase where the jury rendered the findings regarding the weight of

aggravation relative to mitigation. Counsel's thinking also may have been impacted had he

known the jury would be instructed that it was entitled to recommend a life sentence even if it

had unanimously agreed that all of the other elements for a death sentence were satisfied.

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Counsel may have given different advice to Mr. Hilton, and the decision-making may have been

different.

Given those and other uncertainties about the Hurst error's impact on counsefs strategy

and presentation, the jury's unanimous recommendation does not allow this Court to reliably

conclude that the jury would have unanimously made all of the required findings of fact in a

constitutional proceeding. In this regard, as noted in Section II(S), an evidentiary hearing is

necessary to establish how counsel's approach may have differed in a post-Hurst penalty phase.

Claim 5: Trial counsel was ineffective for not objecting to Mr. Hilton's ineligibility for
the death penalty under the Eighth Amendment due to his severe mental
illness.

Counsel relies on the arguments already presented in the post-conviction motion in

addition to the evidence adduced at the evidentiary hearing.

Claim 6: Trial counsel was ineffective for their failure to preserve for appeal the
denial of cause challenges during jury selection.

Counsel relies on the arguments already asserted in the initial post-conviction motion in

conjunction with the testimony adduced at the evidentiary hearing. This issue is more

emblematic of how completely dysfunctional the defense team was in Mr. "Hilton's case. In

short, Jury Selection proceeded over the course of several days. (T. Jury Selection, 1-1 082).

There were numerous "cause challenges" that were asserted during jury selection. Many of them

were granted, but many of them were not. While the defense team made objections to the denial

of cause challenges, the defense team failed to preserve any of these objections for the purposes

of appellate review by utilization of the process outlined in Trotter. The Defendant asserts that

the failure to properly preserve the denial of cause challenges for appellate review was and is

53

1690
ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

Ms. Suber explains that she made a mistake and that she thought that she had preserved

any error. (H, 50-140). Ms. Saunders explains that she should have been responsible, but

nobody knew who was responsible and she failed in her obligations. (H, 8, State's Exhibit 1).

Mr. Friedman essentially didn't feel he had any obligations and was reliant on others. (H, 452-

570). It is difficult to discern who was trying to preserve error, why they were trying to preserve

error, for what purpose that error was being preserved and by what mechanism. Suffice it to say

that the left hand had no idea what the right hand was doing. All lawyers make mistakes at trial,

but to go through an entire grist mill of objections, cause challenges and peremptory challenges

to only then fail to preserve any appealable issue highlights the complete dysfunctionality of Mr.

Hilton's defense.

Claim 7: Cumulative error

Even if each individual claim is insufficient to set aside Mr. Hiltoo's conviction and

sentence, all of trial counsel's errors taken together renders his guilty verdicts and death sentence

unreliable. In considering all aspects of the defense counsel's deficient performance as part of a

cumulative analysis, Mr. Hilton would not have been found guilty of first-degree murder and

sentenced to death. Accordingly, his conviction and sentence should be vacated.

54

1691
 Respectfully submitted,

Is/ Robert A. Morris

Robert A. Morris, Esquire

The Law Offices of Robert A. Morris, LLC
Florida Bar No. 0144680
911 E. Park Avenue
Tallahassee, FL 32301
Attorney for Defendant
COURT APPOINTED

55

1692
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3~d Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant State

Attorney Georgia Cappleman, SA02 LeonFelony@leoncountyfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 14th day of January, 2019.

Is! Robert A. Morris

ROBERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alex@ramlawyer.com
efiling@ramlawyer. com
ATTORNEY FOR DEFENDANT
COURT APPOINTED

56

1693
Filing# 84008126 E-Filed 01/28/2019 03:53:36 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN AND
FOR LEON COUNTY; FLORIDA

STATE OF FLORIDA, CASE NO.: 2008 CF 697A

SPNNO.: 197149
vs.

GARY MICHAEL HILTON,

Defendant.
--------------------~/
ORDER REQUESTING SUPPLEMENTAL PLEADINGS

THIS cause coming on to be heard sua sponte, and the court being otherwise
fully advised in the premises, it is heteby,
ORDERED AND ADJUDGED that withih five (5) days each. party will
simultaneo\lsly submit to the Co\lrt ~'proposed frndings of facts and conclusions of
law" as provided by Fla.R.Crim.P. 3.85l(f)(5)(E), and as previously requested by
theCo\lrt.
DONE AND ORDERED this 28th day of 1anuary, 2019., in Tallahassee,
Leon County, Florida.

cc:
Eddie Evans, Assistant State Attomey
Georgia Cappleman, Assistant State Attomey
Robert A. Morris, Counsel for Defendant
Jennifer Keegan, Assistant Attorlley General

1694
Filing# 84311851 E-Filed 02/ul/2019 04:17:38 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

V. Case No. 2008-CF-000697

CAPITAL CASE
GARY MICHAEL HILTON,

Defendant.
_________________________cl

STATE'S RESPONSE TO COURT'S JANUARY 28,2019 ORDER

COMES NOW, the State of Florida, by and through undersigned counsel, and hereby

submits the State's Response to Court's January 28,2019 Order. On April20, 2017, Hilton filed

his Second Motion for Leave to Amend Initial Postconviction Motion and Incorporated

Memorandum of Law (hereinafter "Motion"), raising seven claims. The State filed its answer to

Hilton's Motion (hereinafter "Answer" or "State's Answer") on May 15, 2017. Hilton filed an

Amended Claim 6 on July 21, 2017, and the State filed its answer on August 7, 2017. An

evidentiary hearing was held October 30, 31, and November I, 2018, during which Hilton

presented testimony and exhibits to support his Motion. The State filed its Postconviction

Hearing Closing Argument on January 14, 2019 and Hilton filed his Written Closing Argument

on the same day. On January 28, 2019, the Court issued an Order requesting supplemental

pleadings providing proposed findings of fact and conclusions of law. The State submits the

following supplemental pleading setting forth the proposed findings of fact and conclusions of

law contained in the State's Postconviction Hearing Closing Argument.

1695
 The Merits

Claim 1: Whether Trial Counsel was Ineffective during the Penalty Phase of
Hilton's Trial

(a) Failure to conduct a competent mitigation investigation

Hilton alleges that trial counsel was ineffective during the penalty phase of his trial for

failing to conduct a competent mitigation investigation, and specifically for failing to conduct a

"multigenerational review" of Hilton's family's mental illness and failing to investigate Hilton's

military service and the mental health impact it had. (Motion at 28). Hilton's defense team was

not deficient in conducting a mitigation investigation. Strickland v. Washington, 466 U.S. 668

(1984); Dingle v. Sec'y Dept. of Corr., 480 F.3d 1092, 1099 (I lth Cir. 2007). Fuentes, the

mitigation specialist, conducted a thorough mitigation investigation and the defense team knew

about all the mitigation related to Hilton's military service and family history, and that

information was presented at trial. (Evid. Hrg. Trans. at I 08-87, 257, 260-62, 492-93, 496-97,

525-26; R. 16:disc 7; 38:124-25; 39:242-43). Hilton's expert witness, Dr. Camp, did not testify

to any information that was previously unknown or otherwise not presented to Hilton's jury. (Id.

at 143-77; R. 16:disc 7). Hilton is not prejudiced by the defense team's mitigation investigation.

As Hilton's defense team uncovered all available mitigation, any changes to their mitigation

investigation would have no reasonable probability of changing the outcome of his case. Sears v.

Upton, 561 U.S. 945 (2010). This claim should be denied.

(b) Failure to present available mitigation

Hilton claims that trial counsel was ineffective for failing to present available mitigation

evidence and witnesses on several topics and for not calling enough lay witnesses. (Motion at 5,

23-25, 29). Friedman, lead trial counsel in the penalty phase, was not deficient in presenting

1696
mitigation because his decisions on presentation of evidence were informed and based on

reasonable strategy. Pietri v. State, 885 So. 2d 245, 252 (Fla. 2004); Johnston v. State, 63 So. 3d

730, 740 (Fla. 2011). As Friedman is a highly experienced trial attorney, his strategic decisions

are entitled to additional deference. Chandler v. United States, 218 F. 3d 1327, 1316 (I I th Cir.

2000); Provenzano v. Singletary, 148 F. 3d 1327, 1332 (I lth Cir. 1998). Friedman presented all

the helpful mitigation evidence to the jury, provided all the mitigation evidence to their experts,

called eleven lay witnesses, and made reasonable strategic decisions to withhold unhelpful or

potentially harmful mitigation evidence and witnesses. (Evid. Hrg. Trans. at 498, 534).

Ultimately, the jury heard most of the evidence that Hilton claims was withheld at trial. (R.

38:126-35; 39:191-92, 236-39, 244-46, 379-89, 390-404; 40:299-356; 41:409-512). Counsel is

not deficient for declining to present available mitigation or witnesses because he had a

reasonable strategic basis for withholding it. Hannon v. State, 941 So. 2d 1109, 1124 (Fla. 2006).

Hilton failed to provide evidence of prejudice because he did not present any of the Jay

witnesses at the evidentiary hearing that he claims should have been presented at trial and did not

present any evidence that would have a reasonable probability of changing the outcome of

Hilton's trial if it had been presented at trial. Guardado v. State, I 76 So. 3d 886 (Fla. 2015);

Lebron v. State, 135 So. 3d 1040, 1055-56 (Fla. 2014). The exclusion of the defense team's

PowerPoint presentation was the result of relevance objections, rather than a failure to present

mitigation, and had no reasonable probability of impacting Hilton's trial because it mostly

contained photos of evidence the jury heard about through other means. (R. 16: disc 7). The

introduction of the State's rebuttal evidence in response to the defense theme that Ritalin affected

Hilton's behavior would not have been excluded if they had presented the mitigation Hilton

1697
 claims should have been presented. Finally, the defense counsel is not liable for Fuentes' choice

to quit over objections to Friedman's mitigation strategy because her actions were a shocking

departure from the conduct expected of a mitigation specialist, and the team responded

reasonably to her departure by completing the remainder of her work. Guardado v. State, 176 So.

3d 886 (Fla. 2015); Dufour v. State, 905 So.2d 42, 56 (Fla.2005). This claim should be denied.

(c) Failure to prepare and effectively use expert witnesses

Hilton alleges trial counsel was ineffective in preparing and effectively using expert

witnesses during the penalty phase of Hilton's trial. (Motion at 25-31). Hilton failed to present

any evidence on this claim by presenting new diagnoses or expert testimony that were not

presented at trial or by calling the defense experts to testify that they were not properly prepared

for trial. Friedman was not deficient because he exercised due diligence and his decisions were

reasonable and strategic. Friedman provided all available information to his experts and regularly

· updated them on developments, and he exercised due diligence by instructing the experts not to

mention harmful topics. (Evid. Hrg. Trans. at 470-71, 483, 486, 491-94, 497, 502-03, 539-41,

546-47). Friedman was not deficient in presenting Dr. Wu's testimony because Dr. Wu's

mention of the Deadly Run movie was spontaneous and nonresponsive to Friedman's

questioning. (R. 38:127-28). Friedman's decision to hire Dr. Strauss as an expert witness instead

of Dr. McLaren was a reasonable decision because he did not trust Dr. McLaren and Dr. Strauss

was better-suited to Hilton's case. (Evid. Hrg. Trans. at 545). Hilton was not prejudiced by the

defense team's preparation and presentation of expert testimony because any changes in the

defense team's preparation and use of experts would not outweigh the overwhelming evidence in

aggravation and the six weighty aggravators in this case. This claim should be denied.

1698
 Claim 2: Whether Trial Counsel was Ineffective due to Disorganization and
Division, Inconsistent Preparation, Unreasonable Caseloads, and Unreasonable
Strategy

(a) Divisiveness of the Defense Team

Hilton alleges that the members of his trial team were divisive and uncooperative,

resulting in ineffective assistance of counsel. (Motion at 34-39). There is no question that there

was some discord within Hilton's trial team, however, Hilton's general allegations of personal

conflict are insufficient to establish ineffectiveness. Hilton alleges that the defense team did not

get along and that Suber was difficult to work with. These allegations fail to allege specific

deficient acts that present a reasonable probability of affecting the outcome of his case.

Strickland, 466 U.S. at 688-90); Sears, 56! U.S. at 945. As such, Hilton is not entitled to relief

on general allegations of discord. This claim should be denied.

Hilton alleges that Suber was ineffective for consuming prescription medication during

Hilton's case in a manner that interfered with her work. (Motion at 35). There is no deficient

performance because Suber's use of prescribed medication did not cause specific errors, and her

use of medication was after work and under the care of a doctor. Allegations that consuming

prescription medication or alcohol may have affected Suber's work is refuted by the record and

the evidentiary hearing testimony presented by Suber and Daniels. (Evid. Hrg. Trans. at 89, 314).

Hilton cannot establish deficiency or prejudice because he failed to present evidence of specific

deficient acts that present a reasonable probability of affecting the outcome of his case. This

claim should be denied.

Hilton alleges that Bohanan was ineffective for acting unprofessionally and intentionally

sabotaging the attorney-client relationship. (Motion at 38). There is no prejudice because

1699
Bohanan's conduct, though regrettable, had no reasonable probability of affecting the outcome of

Hilton's trial. Although the evidence demonstrates that Bohanan may have made unprofessional

comments to Hilton about other defense team members, Daniels and Friedman testified at the

evidentiary hearing that Bohanan's conduct did not create a conflict that obligated withdrawal

from the case. (Id. at 303-04, 551). The team responded reasonably to Bohanan's conduct by

addressing any ethical issues and removing Bohanan from the case. Bohanan's exit was

inconsequential to the defense team's performance at trial because her role in the case was

minor. (Id. at 28, 474; State Exhibit 1). As such, there is no reasonable probability that

Bohanan's conduct impacted the outcome of the trial. This claim should be denied.

Hilton alleges that his defense team was not prepared for the guilt or penalty phase of

trial because the team members were not cooperating with each other and team members kept

changing roles or leaving the team. (Motion at 36, 39). There is no deficient performance

because the trial record and the evidentiary hearing testimony establish that the defense team was

extremely prepared for trial and completed an enormous amount of work in the thirty-six months

that the case was pending. (R. Master Index at i-xxxi; 3:521-62; 4:648-59, 1120-32, 1152-91;

7:1274-79; 11:1995-2003, 2046-47, 2077-83; Evid. Hrg. Trans. at 66-67, 107-08, 112-13). Any

Jack of cooperation did not prevent team members from fully preparing for trial, as every team

member got a copy of the discovery and the team had regular group meetings. Hilton is not

prejudiced by whatever lack of cooperation existed among the team members. Bohanan's and

Fuentes' exits had little impact on the case because Bohanan's role was minor and Fuentes' work

was nearly finished when she quit. Any lack of cooperation that may have existed within the

team does not have a reasonable probability of changing the outcome of Hilton's trial given the

1700
overwhelming evidence of guilt and the six weighty aggravators in his case. This claim should be

denied.

Hilton alleges that Suber was ineffective for being generally "ill prepared" in defending

his case, including being late to court, making poor use of her peremptory challenges during jury

selection, and objecting to another attorney on her team in open court. (Motion at 37). Suber was

not deficient in her preparation of Hilton's case because any errors Suber made, such as being

late for court one time for a hearing that another attorney on her team was handling, were minor

errors that do not constitute deficient performance. Suber prepared extensively to cross-examine

the State's scientific witnesses and the record reflects that the defense team adequately attacked

the evidence. (Evid. Hrg. Trans. at 110-12, 292-93; R. ll :24-56; 33:1!0 l-52; 35:1274-1350).

Hilton was not prejudiced by Suber's performance, as changes in her preparation would have had

no reasonable probability of changing the outcome of his trial in light of the overwhelming

evidence of guilt. This claim should be denied.

Hilton alleges that the defense team failed to adequately communicate with Hilton "about

the reality of the case against him." (Motion at 35). There was no deficient performance because

Suber and Friedman both communicated with Hilton multiple times about trial strategy and the

evidence in his case, and he repeatedly confirmed that he wanted an adversarial trial. (Id. at 69-

70, 72, 82-84, 506-07). Hilton was not prejudiced because counsel adequately communicated

with him, and any lack of communication would not have a reasonable probability of changing

the outcome of his trial. This claim should be denied.

1701
 (b) Excessive Workload

Hilton alleges the defense team was working under an excessive caseload, did not spend

the necessary time on Hilton's case, and overlooked correctional officer Caleb Wynn's report in

the evidence. (Motion at 40-41 ). The defense team was not det1cient due to overwork or failure

to prepare Hilton's case. The defense team had enough time to prepare for Hilton's case during

the thirty-six months Hilton's case was pending and they accomplished an enormous amount of

work during that time. (Master Index at i-xxxi; I :39; 3:521-62; 4:648-59, 1120-32, 1152-91;

7:1274-79; 11:1995-2003, 2046-47, 2077-83; 17:01). The Public Defender's Oft1ce eased the

defense team's workload by reassigning cases and accommodating all resources requests. (Evid.

Hrg. Trans. at 105-07, 109-10, 514-15). Suber was unfamiliar with Otl'icer Wynn only because

be bad not been properly disclosed to the defense. (Id. at 111-13). When Officer Wynn was

presented to testify, Suber responded adequately by raising proper objections and taking steps to

prepare for his testimony. (Id. at 113-14). Hilton was not prejudiced. Suber would not have been

able to exclude or change Officer Wynn's testimony if she bad been aware of it earlier. (!d. at

114-15). Even if they succeeded in excluding Oft1cer Wynn's testimony, it would have no

impact because other evidence of Hilton's incriminating statements presented at trial. (R.

34:1180, 1184, 1196-1203). As such, iftbe defense team had more time to prepare for Oft1cer

Wynn's testimony it would have had no reasonable probability of changing the outcome of

Hilton's trial. This claim should be denied.

Claim 3: Whether Trial Counsel was Ineffective for Failing to Present a Cohesive,
United Defense in the Guilt and Penalty Phases of Hilton's Trial

Hilton alleges defense counsel was ineffective because the penalty phase strategy to

blame Hilton's sudden change in behavior on Ritalin overdose was inconsistent with the

1702
reasonable doubt defense used in the guilt phase. (Motion at 41-42). The defense team's

performance was not deficient because the guilt and penalty phase strategies did not conflict with

each other and the defense team's strategies were reasonable given the realities of the evidence

in Hilton's case. Shellito v. State, 121 So. 3d 445, 453 (Fla. 2013); Dingle v. Sec'y Dept. of

Corr., 480 F.3d 1092, 1099 (lith Cir. 2007). The evidence of guilt was overwhelming and

presented few defenses, an intoxication-induced insanity defense was not legally viable, and

Hilton told the team repeatedly he wanted to "fight everything" at trial. (Evid. Hrg. Trans. at 70,

133-34, 196, 256, 506, 518). As such, the defense team's guilt phase strategy to focus on

establishing reasonable doubt was a reasonable trial strategy and was not inconsistent with the

penalty phase strategy. Hilton is not prejudiced by the defense team's choices on strategy

because there is no guilt or penalty phase theory that would have a reasonable probability of

changing the outcome of Hilton's trial, given the voluminous evidence of guilt and six weighty

aggravators in his case. This claim should be denied.

Claim 4: Whether Hilton is entitled to Relief Pursuant to Hurst v. Florida, 136 S. Ct.
616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016)

Hilton alleges that he is entitled to a new penalty phase pursuant to Hurst v. Florida, 136

S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). Hilton is not entitled to relief

because the jury in his case unanimously recommended death and the Florida Supreme Court has

repeatedly relied on a unanimous death recommendation to find Hurst error harmless beyond a

reasonable doubt. See Davis v. State, 207 So. 3d 142 (Fla. 2016); King v. State, 211 So. 3d 866

(Fla. 2017); Truehill v. State, 2Jl So. 3d 930 (Fla. 2017); Lowe v. State, No. SC12-263 2018

WL 5095143, *26 (Fla. Oct. 19, 2018). Hilton's jury was properly instructed that one aggravator

must be proven beyond a reasonable doubt before they could consider the death penalty, that the

1703
jury must determine whether sufficient aggravators exist to justify the death penalty, and whether

the aggravators outweighed the mitigators. (12:2309-12). The jury was cautioned that they are

never required to recommend a death sentence and to carefully consider the evidence. (12:2313).

The unanimous death recommendation and the instructions the jury received provide the basis to

conclude that the jury made the required findings under Hurst. As such, any Hurst error in this

case is harmless beyond a reasonable doubt and Hilton is not entitled to relief.

Claim 5: Whether Trial Counsel was Ineffective for Failing to Object to Hilton's
Eligibility for the Death Penalty

Hilton alleges that his trial counsel was ineffective for failing to argue that his mental

illness 1 makes him ineligible for the death penalty under the Eighth Amendment. Trial counsel

was not deficient for failing to raise this claim at trial because it is unripe and Florida law does

not recognize mental illness as a valid bar to imposition of the death penalty. Power v. State, 992

So. 2d 218, 222 (Fla. 2008) ("[N]either this Court nor the Supreme Court has recognized mental

illness as a per se bar to execution."); Goode v. Wainwright, 448 So. 2d 999 (Fla. 1984). Hilton

is not prejudiced by trial counsel's failure to raise this claim as raising meritless claims would

not have changed the outcome of his trial. This claim should be denied.

Claim 6: Whether Trial Counsel was Ineffective for Failing to Preserve for Appeal
the Denial of Cause Challenges During Jury Selection 2

Hilton alleges that trial counsel was ineffective for failing to preserve the denial of cause

challenges in accordance with Trotter, 3 so that such denials could be raised on appeal. (Amended

Claim 6 at 2-3). Hilton's claim is facially insufficient because he fails to identify which cause

1 Hilton notes various mental conditions relevant to this claim, including brain damage, pervasive drug use in his
youth, multiple sclerosis, schizo affective disorder, and exhibitions of"bizarre" behavior. (Motion at 61-62)
2 This claim is sequentially numbered as Claim 6 but Hilton's Motion, presumably due to typographical error, has

this claim listed as Claim 7. (Motion at 73).

3 Trotter v. State, 576 So. 2d 691 (Fla. 1990)

10

1704
challenges should have been preserved and fails to identify specific jurors that harbored actual

bias. Hannon v. State, 941 So. 2d 1109, 1139 (Fla. 2006). Hilton is not prejudiced by trial

counsel's handling of the cause challenges in his case because none of the jurors that served on

his jury harbored actual bias against him. Carratelli v. State, 961 So. 2d 312 (Fla. 2007). Jurors

Crowell and Rice were the only jurors that served on Hilton's jury after cause challenges to

remove them were denied. The voir dire of both jurors reflects that they were impartial. (R.

17:30-35; 18:280-81). As such, Hilton is not prejudiced by their service on his jury. This claim

should be denied.

Claim 7: Cumulative Error4

Hilton alleges that he did not receive a fair trial due to the numerous errors in his case. He

asserts that the errors complained of in his Motion tainted his case and these errors are not

harmless. (Motion at 74). As none of Hilton's individual claims contain any merit, he is not

entitled to cumulative error relief. Israel v. State, 985 So. 2d 510, 520 (Fla. 2008) (holding where

individual claims of error are meritless or procedurally barred, a defendant is not entitled to relief

based on cumulative error). This claim should be denied.

CONCLUSION

WHEREFORE, the record and the evidence presented at the evidentiary hearing

demonstrates that Hilton is not entitled to relief. The State prays this Court deny Hilton's Motion

in its entirety.

Respectfully submitted,

ASHLEY MOODY
ATTORNEY GENERAL

4 This claim is sequentially numbered as Claim 7 but Hilton's Motion, presumably due to typographical error, has
this claim listed as Claim 8. (Motion at 74).
II

1705
 Is/ Jennifer L. Keegan
JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL
Florida Bar No.: 0105283
PL-0 I, The Capitol
Tallahassee, FL 32399- I 050
jennifer.keegan@myfloridalegal.com
capapp@myfloridalegal.com
Phone: (850) 414-3579
Co-counsel for the Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished

via the eportal to Robert A. Morris, Esq., alex@ramlawyer.com, Counsel for the Defendant; and

the Office of the State Attorney, SA02_Leon@leoncountyfl.gov; this I st day of February, 2019.

Is/ Jennifer L. Keegan

CO-COUNSEL FOR THE PLAINTIFF

12

1706
Filing# 84388613 E-Filed 02/v4/2019 04:38:46 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

CASE NO.: 2008-CF-697

SPN: 197149
vs. DIVISION: FELONY

GARY M. HILTON, DEATH PENALTY

Defendant.
I

UNOPPOSED MOTION FOR ENLAGEMENT OF TIME

COMES NOW the Defendant, by and through the undersigned counsel, and moves this

Court for Enlargement of Time and in support thereof states as follows:

1). This Court entered an order in January 28,2019 requiring counsel for the

respective parties to submit supplemental pleadings within five (5) days.

2). Counsel has diligently prepared the responsive pleading. However, there is

something that has corrupted the Word file and "scrambled" the work produced. Compounding

matters, the undersigned is ill along with his wife and children.

3). Counsel attended a brief plea hearing this morning in Liberty County and had to

return home. The undersigned asked another attorney to appear on his behalf before this Court

on today' s date.

4). The undersigned would respectfully request a brief enlargement of time until 5:00

p.m., February 6, 2019 within which to file the Court's desired response.

1707
 5). The undersigned has contacted Assistant Attorney General Jennifer Keegan and

she has no objection to the relief sought.

WHEREFORE, the defense requests this Court enter an order granting an enlargement

of time to file the response as set forth above.

RESPECTFULLY SUBMITTED,

c/'._., flPN.<d
:,5.75 "' ' ..__X,Y.
//s ::;7ZC-(tef.-r- ,(/ ._ _ _ _ __
ROBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar No.: 0144680
1123 North Bronough Street
Tallahassee, Florida 32303
(850) 792-1111 Facsimile (850) 792-1113
alex@ramlawyer.com
efiling@ramlawyer.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'd Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant State

Attorney Georgia Cappleman, SA02 Leon@leoncountyfl.gov, State Attorney's Office, Leon

County Courthouse, 4th Floor, 301 S. Monroe Street, Suite 475, Tallahassee, FL, and Jennifer

Keegan, jennifer.keegan@myfloridalegal.com, Capital Appeals Bureau, Office ofthe Attorney

General, PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 4th day of February, 2019.

1708
Filing# 84401998 E-Filed 02/05/2019 08:19:28 AM

IN TII'E ClltCUIT COURT OF THE

SECOND JUDICIAL CIRC.UIT, IN
AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

vs. CASE NO.: 2008-CF-697A

DIVISION: FELONY

GARY MICHAEL IDLTON, DEATH PENALTY

Defendant.
--------~------~'
ORDERGRANTINGUNOPPOSED MOTION FOR ENLARGEMENT OF TIME

THIS CAUS:E h..ving come before the Court ott an Unopposed Motion for EnlargernelJJ:

of Time, and the Court being otherwi~e fully adVised in the premises, it is

ORDEMD ANI) ADJUDGED that the Unowosed Motion for Enlargement .of Time is

hereby GRANTED,. and the defense shall file the Court's tesponse bY 5:00 p.m. onFebruary 6,

2019.

DONE AND ORDERED in Chambers at Tallahassee, Leon Co\lllty, Florida, on this

/+"""-.of February, 2019.
";;J-.- day

Copies. furnished to:

ROBERT A. MORRIS, ESQUIRE;

Attorney for Defendant

JENNIFER KEEGAN,
ASsistant Attorney General

1709
Filing# 84540488 E-Filed 02fu6/2019 05:47:38 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO.: 2008-CF-697A

DIVISION: FELONY

GARY MICHAEL HILTON, DEATH PENALTY

DEFENDANT.

------------------------~/

GARY MICHAEL HILTON'S RESPONSE TO THE COURT'S

JANUARY 28,2019 AND ORDER AND PROPOSED FINDINGS OF FACTS AND
CONCLUSIONS OF LAW

COMES NOW the Defendant, Gary Michael Hilton, by and through the undersigned

counsel, and files this Response to the Court's January 28,2019 Order and Proposed Findings of

Fact and Conclusions of Law and as grounds therefore states as follows:

Claim 1: Whether Trial Counsel was Ineffective during the Penalty Phase of Mr.
Hilton's Trial

(a) Failure to conduct a competent mitigation investigation

Mr. Hilton alleges that trial counsel was ineffective during the penalty phase of his trial for

failing to conduct a competent mitigation investigation. The evidence adduced at the evidentiary

hearing was not so much focused on "a failure to develop mitigation" as compared to failing to

present the mitigation developed. This issue is somewhat of a "cart before the horse" matter.

However, there is evidence that the defense failed to conduct a competent mitigation

1710
investigation. Matters of seeming importance that should have been thoroughly vetted and

presented to the jury are categorically broken down below.

Family History
• Kenneth Caldwell- Mr. Hilton's maternal cousin.
Mr. Caldwell has information on Mr. Hilton's mother Cleo, including her cold
personality and lack of affection with Gary. Mr. Caldwell also has limited
information about Mr. Hilton's stepfather Nilo's dangerous business dealings in
Argentina. He witnessed Mr. Hilton acting strangely in a bar. (Exhibit 2A).
• Lionel Sonny Hilton (goes by Sonny)- Mr. Hilton's paternal half-brother.
Sonny Hilton had information about his own relationship with William Hilton,
their father. William deserted Sonny's family in the same way as he did Gary
Hilton. Sonny confirms that William had multiple wives and families at once and
did not contribute monetarily. (Exhibit 2A).
• Phillip Kitchen- police officer familiar with William and Edna Hilton.
Officer Kitchen worked for the police department in Lexington, Kentucky. He
interviewed Edna Hilton after she shot and killed William. Edna said she was
tired of the abuse. The prosecutor did not press charges because it was self-
defense. Officer Kitchen was already involved with William and Edna before
this. He went to their home three or four times on domestic violence calls. Some
of those times Edna had black eyes and bruises. The police department in general
were called about two to three times a year for five years. Each time, Officer
Kitchen could smell alcohol on William's breath, and one time there were alcohol
containers on the lawn. Edna also reported William had drugs in the house.
(Exhibit 2A).
• Elaine Leming- Mr. Hilton's paternal half-sister.
Ms. Leming confirms that William Hilton similarly deserted her mother and
siblings. She has more extensive knowledge about William's death, including that
Edna shot him in self-defense when William was drunk .. She also learned that he
got hooked on prescription pills while working for a hospital in Kentucky and had
a reputation in his neighborhood for acting erratically while drunk. Her brother
Olin, another one of Gary's half-siblings, shows signs of mental illness and
becomes angry about minor things then refuses to talk to his family for weeks or
months. (Exhibit 2A).
• Donald Stephen Reynolds (goes by Stephen)- Mr. Hilton's paternal cousin.
Stephen Reynolds has some background information on Mr. Hilton's mother
Cleo's upbringing. He is Cleo's brother's son. Stephen was physically abused by
his own father and believes it is because his grandfather was abusive to his
children, including Cleo. Stephen's grandfather kicked his children out of the

1711
 house after he remarried because his new wife did not want them. Stephen heard
from other family members that Cleo's second husband, Nilo De bag, was
involved in the mob in Argentina. (Exhibit 2A).
• Nina Reynolds- Mr. Hilton's aunt by marriage.
Nina was married to Mr. Hilton's maternal uncle, Don Reynolds, before Don
passed away. She had interactions with Mr. Hilton as a child and can confirm that
after Mr. Hilton's father, William Hilton, abandoned Mr. Hilton and his mother.
He found another wife while still married to Cleo, and in fact had a third wife that
Cleo did not find out about until years later. Nina can also confirm that Gary was
extremely close with is mother at that time, and Cleo took her son everywhere
with her when she was not at work. Nina only saw Mr. Hilton a few times in his
teens, but he was smart and handsome and had a life of possibilities. In the
1980s, though, she saw Gary and Cleo again, and Gary was unrecognizable. He
was unkempt and did not look the same, and Cleo admitted that she thought Mr.
Hilton was addicted to drugs. Nina also has information about Don and Cleo's
upbringing. Their father beat them with a belt, and their father and stepmother
would not allow them to eat. Don had to sneak food when his stepmother was
busy watching soap operas. Eventually, all of the children, including Cleo, were
shipped off to live with other relatives. (Exhibit 2A).
• The articles and legal information related to William Hilton's death. (Exhibit ll).
Mr. Hilton's Childhood
• Sandra "Sandy" Herman Carr- Mr. Hilton's high school girlfriend.
Sandy can confirm that Mr. Hilton joined the military to get away from an older
man making sexual passes at him. She can also speak to Mr. Hilton's lack of
close friends in high school and his tense relationship with his mom and
stepfather. Finally, she had a weird incident where Mr. Hilton looked her up
years later and talked to her on the phone for about ten minutes before suddenly
making an inappropriate sexual comment. She was a witness at the trial, but she
confirms that there was limited and chaotic witness preparation. (Exhibit 2A).
• Roy Cave - high school and Army acquaintance.
Mr. Cave attended high school with Mr. Hilton, and then they were in boot camp
together. Roy witnessed Mr. Hilton's juvenile attorney sexually exploiting him.
The three of them stayed in a hotel room together and Roy saw the attorney
engaging in sexual acts with Mr. Hilton. Roy also saw Mr. Hilton's tense
relationship with his mom and stepfather, his inability to make friends because of
his weird personality and his developing marijuana addiction. Finally, Roy was a
penalty phase witness, but he confirms that he received no prep or guidance from
the trial team despite flying in from Oregon to testify. (Exhibit 2A).
Mr. Hilton's Military Experience
• Paul Pruitt- served in the Army with Mr. Hilton in the 1960s.

1712
 Paul was in the elite Davy Crockett unit with Mr. Hilton for almost a year. Paul
recollects Mr. Hilton as a strange guy who did not really fit in with the rest of the
men. The others in the unit would socialize, and Mr. Hilton would not go out
with them. Mr. Hilton was very opinionated and talked constantly, almost as if he
could not stop talking. He spoke very quickly and was very fixed on his opinions.
Mr. Hilton found himself to be very intelligent and often bragged about his IQ
score. (Exhibit 2A).
Mr. Hilton's Mental Health/Personal Life
• Needham Bateman - veterinarian for Gary's dog Dandy
Dr. Bateman has information on Mr. Hilton's bizarre behavior whenever he
brought his dog, Dandy, into Dr. Bateman's office in the mid-2000s. Mr. Hilton
was unable to sit still in the waiting room, would just show up unannounced
rather than making appoints, and had a nervous energy. (Exhibit 2A).
• Pamela Burnett- a park acquaintance.
Pamela saw Mr. Hilton numerous times at Murphey Candler Park between 1998
and 2004 and can attest to his strange behavior. He would talk to himself, drive in
circles around the parking lot yelling at people, and get into verbal arguments
with people about dogs being off leash. She called the police on Mr. Hilton a
couple times, but they always told her Mr. Hilton was harmless. He also wore
camping/hiking attire, which was unusual for a casual neighborhood park.
(Exhibit 2A).
• Kay Damerow - a park acquaintance.
Kay saw Mr. Hilton at Murphey Candler Park numerous times in the mid-2000s
through 2007. She recalls that Mr. Hilton had a reputation as the "weird
park guy" because he was obsessive compulsive about his parking, wore
inappropriate hiking attire to the park, and being overly aggressive with others at
the park. Kay and her neighbors called the police on Mr. Hilton because of his
strange behavior, and the police assured them Mr. Hilton was harmless. (Exhibit
2A).
• Dr. Harry Deicher- Mr. Hilton's doctor who prescribed Ritalin.
Dr. Deicher confirms that he did not follow standard procedure in prescribing Mr.
Hilton Ritalin and explains that he did provide Mr. Hilton with a very high dosage
of Ritalin without taking into account the effect on Mr. Hilton psychologically.
He confirms the mental and behavioral changes he observed in Mr. Hilton
following the increase in Ritalin dosage, including Mr. Hilton becoming more
manic. He witnessed a strange episode where Mr. Hilton suddenly became upset
with his dog for virtually no reason. (Exhibit 2A).
• Joyce Dittmer- a park acquaintance.
Joyce encountered Mr. Hilton over a number of years at Murphey Candler Park.
She noticed his strange speech pattern, his excessive hiking attire, and his extreme

1713
 techniques in training his dog. As a nurse, Joyce had some mental health training,
and Mr. Hilton came across as manic and schizoid to her. (Exhibit 2A).
o Ronald Miller - a park acquaintance.
Ronald saw Mr. Hilton at Murphey Candler Park in the years before his arrest.
He observed Mr. Hilton to be constantly agitated, only interested in a one-sided
conversation and wearing strange clothes to the park. (Exhibit 2A).
o Heather Parrott- Mr. Hilton's former co-worker.
Heather worked for Mr. Hilton in the mid- to late- 1990s. She noticed Mr.
Hilton's erratic mood changes. Heather was supposed to train Mr. Hilton, but he
thought of himself as superior to her. He would get upset when customers did not
buy what he was selling, and he would scream at them. Sometimes, he would
then get off the phone and scream at Heather. (Exhibit 2A).
• Philip Darryl Presti (goes by Darryl)- Mr. Hilton's ex-girlfriend's son.
Darryl's mother, Connie Wagoner, dated Mr. Hilton for a couple of years in the
1980s. Darryl indicates that Mr. Hilton suffered from sudden mood changes
where he would suddenly become angry for no reason. He was also addicted to
marijuana and smoked constantly. Mr. Hilton was very caring and attentive
toward Darryl's mother and teenaged sister, although Darryl himself did not get
along with Mr. Hilton. (Exhibit 2A).
• Brenda Roberts- Mr. Hilton's ex-girlfriend
Brenda dated Mr. Hilton back in the 1980s for about a year. Brenda was nine
years younger than Mr. Hilton. He did not have a lot of money, and this was
when he was running a charity scam. Mr. Hilton smoked a great deal of
marijuana with Brenda. She knew him after he had been married a couple times,
and he always hoped that he would not run into one of his ex-wives who worked
at a park that Brenda and Mr. Hilton often went to. He seemed angry at his ex,
but he never told Brenda why. He also never talked to her about his family.
Brenda was subpoenaed to testify at the trial. She was told that she would be
there for a day and a half at the most. Instead, she waited for three or four days
before the attorneys recorded a statement from her and then told her to go.
(Exhibit 2A).
• Christa Sparks- Mr. Hilton's ex-sister-in-law.
Christa's sister, Ursula, met Mr. Hilton in Germany when he was in the Army.
Ursula was from Germany, and she moved to the States to be with Mr. Hilton.
Ursula divorced Mr. Hilton because he had developed a drug addiction and was
unemployed. Christa met Mr. Hilton after he and Ursula had already divorced.
Christa went to visit her sister in Miami, and Ursula wanted to go check on Mr.
Hilton because she was worried about him. She warned Christa that this was not
the same man she had married. When they got there, Mr. Hilton was living in a
shack with no furniture. He was unkempt and lying on pillows on the floor. He

1714
 was high, and his eyes were rolling around. They only stayed a few minutes.
(Exhibit 2A).
• Barbara Speed- worked in an office next to Mr. Hilton's employer.
Barbara worked for a realty company right next to John Tabor's siding business,
where Mr. Hilton worked on and off for ten years. Mr. Hilton would randomly
wander into the realty company and start chatting with Barbara. He rambled, and
his focus bounced around. Barbara did not want to talk to him, so she would just
keep working. Mr. Hilton would not even notice that she was not paying attention
to him. Mr. Hilton would also make strange requests of her, such as asking her to
do his laundry. This was strange because they were not friends. He did not seem
to have any friends. Mr. Hilton was also very territorial and got upset when
customers for Barbara's business would park in the parking lot, even though the
realty company and Tabor's business shared a lot. He even yelled at a customer
for trying to park there once. Mr. Hilton used construction cones to barricade
certain spaces. He also used a lot of marijuana around this time. (Exhibit 2A).

Mental State at Time of Crime

• Tom Rogers - had a strange encounter with Mr. Hilton.
Tom was hiking with his friend on Blood Mountain. The parking lot was pretty
full, so when they were about to leave, Mr. Hilton hurried up to them and asked if
they were leaving. When he spoke, he was intense and aggressive. When they
did pull their car out, Mr. Hilton got into his van and then aggressively pulled into
the park. Mr. Hilton's hair was cropped close to his head, and his teeth were either
bad or missing. He had on hiking gear, and he had a lot of garbage bags in his
van. (Exhibit 2A).
• Robert Schmidt- had a strange encounter with Mr. Hilton.
Robert was hiking on Blood Mountain with his wife and son on December 31,
2007 when he saw a dog coming up the trail off leash. Mr. Hilton was shortly
behind the dog. Mr. Hilton was talking in a high pitched, squeaking voice, like he
was singing a nursery rhyme or song. Robert stepped in between Mr. Hilton and
his wife and son because it was weird, so Robert did not want Mr. Hilton around
them. (Exhibit 2A).
• Karen Stansbury - had a strange encounter with Mr. Hilton.
Karen and her husband were at Amicalola Falls State Park in fall 2007. They
were going up a set of stairs to get to the top of the falls when they came up on
Mr. Hilton. Karen was ahead of her husband, and Mr. Hilton kept circling her on
the stairs. He was talking to himself, almost as if he was singing a nursery rhyme.
He also kept tapping her as he ran by like a child playing tag. It was very
childish. (Exhibit 2A).

1715
 Additional
• Daniel Fendley - producer and lead actor in Deadly Run.
Daniel can confirm that Mr. Hilton only had minor involvement in Deadly Run.
The movie was based on real life events out in Alaska. They stuck as close to the
original story as possible. Mr. Hilton was a production assistant, and he mostly
did minor tasks around the set. He knew Georgia well. His biggest contribution
was picking the filming locations. He may have suggested a couple props and
lines, but nothing major. (Exhibit 2A).

It cannot be said that the defense team did not "investigate" mitigation witnesses on the

Defendant's behalf. However a comparison of mitigation expert Betty Fuentes' memorandums

developed reveal cursory development. (Compare Exhibits lA with Exhibits IB, IC, ID, IF,

IH, II, 2A, 2B, 2C, 2D, 2E). Comparison reveals a lack of depth to inquiry and a complete

failure to investigate and inquire in many important areas.

The analysis of a competent investigation does not end here. It shifts to the next issue

before the Court.

(b) Failure to present available mitigation

Mr. Friedman, lead trial counsel in the penalty phase, was deficient in presenting

mitigation. There is no question that Mr. Friedman is an attorney with many years of experience.

However, his experience is not associated with trial work or death penalty trial work. Mr.

Friedman's experience handling death penalty trial work in the guilt phase and/or penalty phase is

very limited. He does have familiarity with the concepts, but little to no practical experience.

Mr. Friedman is currently employed by Capital Collateral Regional Counsel North.

(Evidentiary Hearing, 455). He worked as an assistant public defender in West Palm Beach in the

80's and 90's for an 8 year period of time. During that period of time he "tried approximately 50

1716
cases" 1 and "briefed close to 200 cases." (Evidentiary Hearing, 455). Mr. Friedman was then in

private practice for 4 years where he handled state and federal appeals. (Evidentiary Hearing,

455). He moved to Tallahassee in !997 and worked for a year for Capital Collateral Regional

North. (Evidentiary Hearing, 455). Mr. Friedman was employed by the Office of the Public

Defender for the Second Judicial Circuit from 1998 until20!4. (Evidentiary Hearing, 455-456).

During his tenure, he handled one "capital case" where the defendant was declared incompetent to

proceed. (Evidentiary Hearing, 456). He handled appeals, Jimmy Ryce cases and recollected that

he handled 1 post-conviction matter in a capital case. (Evidentiary Hearing, 455-456). Mr.

Friedman testified that he was "second chair" in the penalty phase of I capital case where he called

"all four witnesses- the expert witnesses in that case. (Evidentiary Hearing, 456). Mr. Friedman

did not have experience in a felony trial courtroom between 1998 and 2014. (Evidentiary Hearing,

460).

Mr. Friedman rejected and did not present virtually all of the mitigation evidence

developed by the mitigation expert assigned to the case by the Office of the Public Defender. He

elected to present evidence "through the expert witnesses" and not present chronological physical

witnesses or substantive evidence/testimony. (Evidentiary Hearing, 454-570).

The failure to present mitigation does not stop here.

(c) Failure to prepare and effectively use expert witnesses

Mr. Hilton alleges trial counsel was ineffective in preparing and effectively using expert

witnesses during the penalty phase of Hilton's trial. (Motion at 25-31 ). Mr. Friedman did not

provide all available information to his experts or regularly update them on developments as he

1 It is unclear what type of cases these may have been, but there is no testimony or evidence that they were capital

cases.
8

1717
testified. (Evidentiary Hearing, 454-570). He could not have done so because there was a failure

to adequately investigate in the first instance. He was completely unaware of a great deal of

information or its significance and had no appreciable ability to ask an expert to evaluate that

which was not known and communicate it to a jury. Likewise, he was not aware of great amount

of information with which to prepare his experts leaving his witnesses susceptible.

There is not a particularly good way to address Claims 2&3 in a succinct manner.
They will be addressed together below.

Claim 2: Whether Trial Counsel was Ineffective due to Disorganization and Division,
Inconsistent Preparation, Unreasonable Caseloads, and Unreasonable Strategy

(a) Divisiveness of the Defense Team

Mr. Hilton alleges that the members of his trial team were divisive and uncooperative,

resulting in ineffective assistance of counsel. (Motion at 34-39). He is correct.

(b) Excessive Workload

Mr. Hilton alleges the defense team was working under an excessive caseload, did not

spend the necessary time on Hilton's case, and overlooked correctional officer Caleb Wynn's

report in the evidence. (Motion at 40-41 ). He is likely correct.

Claim 3: Whether Trial Counsel was Ineffective for Failing to Present a Cohesive,
United Defense in the Guilt and Penalty Phases of Hilton's Trial

Mr. Hilton alleges defense counsel was ineffective because the penalty phase strategy to

blame Hilton's sudden change in behavior on Ritalin overdose was inconsistent with the

reasonable doubt defense used in the guilt phase. (Motion at 41-42).

1718
 *********************************************************************

There is not a way of encapsulating the issues in the aforementioned claims in any succinct

way. In the most simplistic of terms:

The testimony ofthe various members of the defense team evidence anything other than a

"team." Each of them attribute blame to another. Each of them attribute responsibility from one

to the other. Each of them shirk and/or accept responsibility for various issues. There is complete

conflict of who was in charge of who, what, when, how or why. There are allegations of mental

health issues and/or substance abuse issues related to counsel. There is testimony that various

counsel was removed, fired or shuffled at varying points of the case or during the actual trial

because there were known and identifiable problems. The mitigation expert resigned in the middle

of trial because mitigation wasn't being used. There is testimony that members of the defense

team were fired or resigned in the midst of trial because of deficiencies known before and in the

middle of trial. There is testimony related to conflicts of interest and the necessity of withdrawing

from the Defendant's case. There is evidence that vacations were more important than the defense

of the Defendant. The emails between the parties that were introduced into evidence demonstrate

anything but stability (and contempt for the Court). (Exhibit IE). There were numerous capital

cases assigned to the Offtce of the Public Defender with the same parties involved with no clear

definition of responsibility. There was no division of labor or responsibility in this case until the

II th hour. There was no agreement on strategy among the lawyers or the client. Moreover, the

lawyers involved presented inconsistent defenses between the guilt phase and penalty phase. The

lawyers involved were unaware of witnesses and their testimony and/or the gravity of their

testimony.

10

1719
 There is genuinely no intelligent way to arrive at findings of fact other than to say that this

is a very rare circumstance where the lawyers simply lost their way. They stopped "lawyering"

for Mr. Hilton and they became more engrossed in their own self-preservation and sense of self.

They jettisoned mitigation. They made things simplistic and streamlined. Everyone wanted to be

finished with a very difficult case. The Defendant did not receive adequate representation. The

jury did not hear or see a presentation that afforded the Defendant an effective defense.

There has rarely been, if ever, a circumstance as presented in this case.

Claim 4: Whether Hilton is entitled to Relief Pursuant to Hurst v. Florida, 136 S. Ct.
616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016)

Mr. Hilton alleges that he is entitled to a new penalty phase pursuant to Hurst v. Florida,

136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). Mr. Hilton is entitled to relief

because it cannot possibly be said that the error in this case is harmless. While the jury's

recommendation was unanimous, their unanimity was without the benefit of an overwhelming

amount of mitigation. It is likely the jury would have and could have arrived at a different

recommendation irrespective of the fact that the schematic in use at the time has now been found

unconstitutional.

Claim 5: Whether Trial Counsel was Ineffective for Failing to Object to Hilton's
Eligibility for the Death Penalty

Mr. Hilton stands on the motion and arguments previously presented.

Claim 6: Whether Trial Counsel was Ineffective for Failing to Preserve for Appeal
the Denial of Cause Challenges During Jury Selection

II

1720
 Mr. Hilton alleges that trial counsel was ineffective for failing to preserve the denial of

cause challenges. (Amended Claim 6 at 2-3). This is further indication of what is evidenced

above, but not necessarily indicative of the necessity for a new guilt phase.

Claim 7: Cumulative Error

This claim should be granted given the collision of the deficiencies and problems described

above.

Conclusion:

During Mr. Hilton's penalty phase, trial counsel failed to elicit relevant testimony from

witnesses on the stand, completely failed to call other witnesses who had helpful information,

and did not adequately consult with and prepare the expert witnesses. Counsel's stewardship

during the penalty phase was deficient, and these deficiencies prejudiced Mr. Hilton by not

providing the effective counsel guaranteed by the Sixth and Fourteenth Amendments.

Accordingly, Mr. Hilton is entitled to a new penalty phase.

Trial counsel opted for a barebones, streamlined mitigation presentation during the

penalty phase. This left out much of Mr. Hilton's life history and led to a mitigation story that

ultimately hurt Mr. Hilton because it opened the door to the State's harmful rebuttal evidence.

Trial counsel collected historical information about Mr. Hilton's life, which included, among

other things, head injuries, neglect, sexual abuse, suicidal ideations, instability, poverty, and

mental illness. However, the jury never heard a vast majority of this information, including that

this was not simply a case of Ritalin overuse, but instead Ritalin overuse by a man who was

already impaired and on the cusp of a breakdown. Trial counsel could have shown the jury that

Mr. Hilton's brain damage and mental illness, in addition to his troubled life history, left him
12

1721
especially vulnerable to the effects of wrongfully prescribed Ritalin. Had trial counsel presented

a more complete picture of Mr. Hilton's life history, there is a reasonable likelihood that the

result of the penalty phase would have been different and the jury would have voted for life.

Mr. Hilton did not receive effective representation and he was prejudiced. See Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052,80 L.Ed.2d 674 (1984). The prejudice Mr. Hilton

suffered was not harmless error pursuant to Hurst and its evolving progeny.

Mr. Hilton is entitled to a new trial.

Respectfully submitted,

Is/ Robert A. Morris

Robert A. Morris, Esquire

The Law Offices of Robert A. Morris, LLC
Florida Bar No. 0144680
911 E. Park Avenue
Tallahassee, FL 32301
Attorney for Defendant
COURT APPOINTED

13

1722
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic mail: to The Honorable James C. Hankinson, Presiding Judge, Leon County

Courthouse, 3'ct Floor, 301 S. Monroe Street, Tallahassee, Florida 32301, Assistant State

Attorney Georgia Cappleman, SA02 LeonFelony@,leoncountvfl.gov, State Attorney's Office,

Leon County Courthouse, 4th Floor, 301 S. Monroe Street, Tallahassee, FL, and Jennifer Keegan,

Jennifer.keegan(almyfloridalegal.com, Capital Appeals Bureau, Office of the Attorney General,

PL-01 The Capitol, Tallahassee, Florida 32399-1050 on this 6th day of February, 2019.

Is/ Robert A. Morris

ROBERT A. MORRIS, ESQUIRE

The Law Offices of Robert A. Morris, LLC
Florida BarNo.: 0144680
911 E. Park Avenue
Tallahassee, Florida 32301
(850) 792-1111
(850) 792-1113 Facsimile
alcx(al,ramlawyer.com
efilingifll,ramlawyer.com
ATTORNEY FOR DEFENDANT
COURT APPOINTED

14

1723
Filing# 84765255 E-Filed 0211212019 09:28:41 AM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA
STATE OF FLORIDA,

Plaintiff,

v. Case No. 2008-CF-000697

GARY MICHAEL HILTON,

Defendant.
--------~--~----~'
ORPER DENYING DEFENDANT'S MOTION
FQRPOSTCOJWICTIQNRELIEF

This cause came on to be heard before the Court pursuant to Defendant's

Second Amended Motion For PostconVictiort Relief filed on April 20, 20t7, and
amended as to claim6 on Jl!ly 21, 2017 .. An. evidentiary hearing was conducted on
October 30, 31, and November 1, 20[8. The State filedits PostcortvictiortHearing
Closing Argument ort January 14, 2019, and Hilton filed his Written Closing
Argument on the same day. On January 28, 2019, the. Court issued .an. Order
reqUe!lting supplemental pleadings providing proposed finding~> of fact and
conclusions of law. Both parties responded to the Court;s supplemental order.
Based upon the reasons as set out below,
It is hereby, Ordered and Actjudged that the. motion be denied .
Procedural Histoty
This matter commenced by indictment of Gary Michael Hilton on February
28, 2008. On March 5, 200&, the Public Defender's Office, S.ecortd Judicial

1724
Circuit, was appointed to represent Hilton. The Public Defender's Office
continued to represent Hilton throughout the trial and direct appeal proceedings.
On June 6, 2008, Hilton was booked into the Leon County Jail after being
el(tradited from Georgia. Jury trial in this matter started on February 2, 2011. On
February 15, 2011, the jury returned a verdict of guilty as to First Degree. Murder,
Kidnapping With Intent To Commit A Felony And To Terrorize, and Grand Theft.
A penalty phase proceeding was conducted on February 17, 18 and 21, 2011. On
February 21, 2011, the juty recommended unanimously that Gary Hilton be
sentenced to death for the murder of Cheryl Dunlap.
On April 21, 20 11, the trial court pronounced a sentence of death and issued
its. sentencing order. The sentencingorder provided that the State had ptoven six
aggravators beyond a reasonable doubt. Weight was assigned to each aggravator,
as follows: (1) the defendant was previously convicted of a violent felony (great
weight); (2) the murder was committed in the course of a kidnapping (great
weight); (3) the murder was committed to avoid arrest (moderate weight); (4) the
murder was committed for pecuniary gain (some weight); (5} the murder was
especially heinous, atrocious or cruel (HAC) (great weight); and (6) the murder
was cold, calculated, and premeditated (CCP) (great weight).
The court also considered and weighed each mitigating circumstance.
proposed by Hilton. and found one statutory mental mitigating factor-at the time
of the murder Hilton was under extreme emotional distress (some. weight). Under
the catch-all provision, the trial court considered ten mitigating factors, finding that
Hilton established eight of them and rejecting two. The court found: (1) Hilton
grew up in an abusive household (some weight); (2) Hilton abused drugs,
specifically Ritalin (some weight); (3) Hilton was deprived of a relationship with

1725
his biological father (moderate. weight); (4) Hilton is already serving a life sentence
so society is protected (some weight); (5) Hilton served his country in the U.S.
military (very little weight); (6) Hilton suffered maternal deprivation and lade of
bonding between mother and child (some weight); (7) Hilton was removed from
his home and put into foster care when he was a child (some weight); (8) Hilton
grew up in a fmancia1ly poor family (not proven); (9} Hilton suffered a traurtlatic
brain injury as a child (some weight); and (10) Hilton suffers from severe mental
defects. (not proven). The court found beyond a reasonable doubt that the
aggravators outweighed the mitigators .and imposed a sentence of death.
On appeal to the Florida Supreme Court, Hilton raised six claims: 1) th.e trial
court erred in admitting his statements to law enforcement as they constituted
inadmissible Williams rule evidence; 2) the trial c.ourt erred in admitting Dr.
Gregory Prichard's testimony regarding Hilton's past criminal conduct, as it
constituted a nonstatutory aggravating circumstance; 3) the trial court erred in
permitting Dr. Prichard to remain in the courtroom, despite invocation of the rule
of sequestration; 4) the evidence was insufficient to find that the HAC and CCP
aggravators were proven; 5) the. trial court erred in rejecting the lack of capacity
mitigating circumstance and failed to make findings to support. the ruling; and 6)
the death sentence violates Rlng v. Arizona, 536 U.S. 584 (2002), The Florida
Supreme Court affirmed Hilton's convictions and death sentence. Hilton v . State,
117 So. 3d 742 (Fla. 20 i3)c Hilton's petition for certiorari to the United States
Supreme Court was denied on December 2, 2013. Hilton v. Florida, 134 S. Ct. 68.6
(2013).
As indicated. above, on April 20,. 20 17, Hilton filed his Second Motion for
Leave to Amend Initial Postconviction Motion and Incorporated Memorandum of

1726
Law (hereinafter "Motion"), raising seven claims. The State filed its answer to
Hilton's Motion (hereinafter "Answer" ot "State's Answer") on May 15;2017. On
June 14, 2017, claim six was dismissed without prejudice with leave to amend due
to legal insufficiency. Hilton ftled an Amended Claim (jon July 21, 20l7,and the
State filed its answer on August 7, 2017. An evidentiary hearing was held October
30, 31, and November 1, 2018, during which Hilton presented testimony and
exhibits to support his Motion. The State filed its Postconviction Hearing Closing
Argl.iiiient on January 14, 2019 and Hilton filed his Written Closing Argument on
the same day. On January 28, 2019, the Court issued an Otder requesting
suPPlemental pleadings providing proposed findings of fact and conclusions of
law. The State submitted its supplemental pleading on February L, 2019. The
Defendant filed his supplemental pleading on February 6, 2019.
Finding Of Facts And Conclusions Of Law
Claim 1: Whether Trial Counsel was Ineffective during the Penalty
Phase ofHilton's Trial

(a)Failure to conduct a competent mitigati()n investigation

Hilton alleges that trial counsel was ineffective during the penalty phase of
his trial for failing to conduct a competent mitigation investigation, and
specifically for failing to conduct a "multigerterational review'' pf Hilton's family's
mental illness and failing to investigate Hilton's military service and the mental
health impact it had. Hilton's defense team was not deficient in conducting a
mitigation investigation. Strickland v. Washington, 466 U.S. 668 (1984). The
Defense conducted an extensive mitigation investigation. Fuentes, the mitigation
specialist, conducted a thorough mitigation investigation and the defense team

1727
knew about all the mitigation related to Hilton's military service and family
history, and most of that information was presented at trial. Hilton's expert witness
at the hearing, Dr. Camp, did not testify to any infonnation that was previously
unknown or otherwise not presented to Hilton's jury. Hilton has proven no
ineffective assistance of counsel in the investigation, nor has he shown any
prejudice by the defense team's mitigation investigation as to any alleged failings.
Any changes to their mitigation investigation would have had no reasonable
probability of changing the outcome of his case .. This claim is denied.
(b)Failure to present available mitigation
Hilton claims that trial counsel was ineffective for failing to present
available mitigation evidence and witnesses on several topics and for not calling
enough lay witnesses. Robert Friedman was the lead trial couns.el in the penalty
phase. Friedman is a highly experienced trial attorney, and his strategic decisions
are entitled to due deference based on that experience. Friedman presented all the
help:fill mitigation evidence to the jury, provided aU the mitigation evidence to their
experts, called eleven lay witnesses, and made reasonable strategic decisions to
withhold unhelp:fill or potentially harmful mitigation evidence and witnesses.
Ultimately, the.jury heard most of the evidence that Hilton claims was withheld at
trial. Reasonable attorneys can disagree on the best way to present evidence to the
jury. It was not unreasonable to decide to present the evidence through highly
qualified experts, who were experienced witnesses. Counsel was not deficient
because he had a reasonable strategic basis for withholding the as.serted additional
evidence.
Hilton also failed to prove prejudice at the evidentiary hearing. No
witnesses were presented at the evidentiary hearing that if presented at trial would

1728
have had an.yreasonable probability of changing the outcome of Hilton's trial. The
exclusion of the defense team's PowerPoint presentation was the result of
relevance objections, rather than a failure to present mitigatipn, and had. no
reasonable probability of impacting Hilton's trial because. it mostly contained
photos of evidence the jury heard about through other means. The court's ruling as
to the PowerPoint presentation would have been the same whether Fuent~s was
present or hot. The State's rebuttal evidence in response to the defense theme that
Ritalin affected Hilton's behavior wotHd probably have been admitted under the
presentation Hilton now proposes to present. Finally, the defense counsel is not
liable for Fuentes' choice to quit over objections to Friedman's mitigation strategy
because her action was a departure from the conduct expected of a mitigation
specialist, and the team responded reasonably to her departure by completing the
remainder of her work. This claim is denied.
(c) Failure to prepare and effectively use expert witnesses
Hilton alleges trial counsel was ineffective in preparing. and effectively using
expert witnesses during the penalty phase of Hilton's triaL Hilton failed to present
any evidence on .this claim by presenting new diagnoses or expert testimony that
were not presented at trial or by calling the defense experts to testify that they wete
not properly prepared for trial. Friedman was not deficient because he exercised
due diligence and his decisions were reasonable and strategic. Friedman provided
all available information to his experts and regularly updated them on
developments, and. be exercised due diligence by instructing the experts not to
mention harmful topics. Friedman was not deficient in presenting Dt. Wu's
testimony because Dr. Wu's mention of the Deadly Run movie was spontaneous
and nonresponsive to Friedman's questioning. Friedman's decision to hire and

1729
present Dr. Strauss as an expert witness instead .of Dr. McLaren was a reasonable
decision because he did not trust Dr. McLaren and believed Dr. Strauss was better-
suited to Bilton's case, Hilton has failed to prove any unreasonable deficiency in
preparation of expert witnesses by Friedman. Further, Hilton has failed to prove
that he was prejudiced by any alleged deficiency. It was not proven that any
changes in the defense team's preparation and use of experts would have
outweighed the overwhelming evidence in aggravation and the six weighty
aggravators in this case. This claim is denied.
Claim 2: Whether Trial Counsel Was Ineffective due to Disorganization
and Division, Inconsistent Preparation, Unreasonable Caseloads, and
Unreasonable Strategy
(a)Divisiveness of the Defense Team
Hilton alleges that the members of his trial team were divisive and
uncooperative, resulting in ineffective assistance of counsel. There is no question
that then~ was some discord within Hilton's trial team, however, Hilton's general
allegations of personal conflict are insufficient to establish ineffectiveness. Hilton
alleges that the defense team didrtot get along and that Suber was difficult to work
with. These allegations fail to allege specific deficient acts that present a
reasonable probability of affecting the outcome of his casec As such, Hilton is not
entitled to relief on general allegations of discord.. This claim is denied.
Hilton alleges that Suber was ineffective for consuming prescription
medication and alcohol during Hilton's case in a manner that interfered with her
work. He has failed to prove that this occurred. Therefore, no deficient
perfonnance has been proven. The record of the trial and the evidentiary hearing
testimony presented refute any claim that Suber's representation during trial was

1730
deficient Hilton has also failed to pre~ent evidence of any specific deficient acts
that present a reasonable probability of affecting the outcome of his case.
Therefore, prejudice has not been proven. 1bis claim is denied.
Hilton alleges that Bohanan was ineffective for acting unprofessionally and
Intentionally sabotaging the attorney-client relationship. Although the evidence
demonstrates that Bohanan may have made unprofessional colnments to Hilton
about other defense team members, Bohanan's removal from the case was
inconsequential to the defense team's performance at trial because her role in the
case was minor. As such, there is no reasonable probability that Bohanan's
conductimpacted the outcome of the trial. This claim is denied.
Hilton alleges that his defense team was not prepared for the guilt or penalty
phase of trial because the team members were not cooperating with each other and
team members kept changing roles or leaving the team. Hilton. has proven no
deficient performance because the trial record and tile evidentiary hearing
testimony establish that the defense team was extremely prepared for trial and
completed an enormous amount ofwork in the thirty-six months that the case was
pending. Any lack of cooperation did .not prevent team members from fully
preparing for trial, as every team member got a copy of the discovery and the team
had regular group meetings. Hilton was not prejudiced by whatever lack of
cooperation existed among the team members. Bohanan's and Fuentes; exits had
little impact on the case because Bohanan's role was minor and Fuentes' work was
nearly finished when she quit. Hilton has failed to prove any deficient conduct.
Further, he has failed to prove that any alleged lack of cooperation Within the. team
had a reasonable probability of changing the outcome of Hilton's trial. The

1731
evidence as to guilt was overwhelming and six weighty aggravators dictated the
death Verdict in this case. This claim is. denied.
Hilton alleges that Suber was ineffective for being generally "ill prepared" in
defending his case, including being late to court, making poor use of her
peremptory challenges during jury selection, and objecting to another attorney on
her team. in open court. He has failed to prove any unreasonable deficiency.
Further, Hilton has failed to prove that any alleged deficiencies had any reasonable
probability of changing the outcome ofhis trial. This claim is denied.
Hilton alleges that the defense team failed. to adequately communicate with
Hilton "about the reality of the case against him." There was no deficient
performance because Suber and Friedman both communicated with Hilton multiple
times about trial strategy and the evidence in his case, and he repeatedly confirmed
that he wanted an adversarial trial. No deficient conduct was proven. Further,
Hilton has failed to prove that any alleged deficiency as lack of communication
had any reasonable probability of changing the outcome of the trial. This claim is
denied.
(b) Excessive Workload
Hilton alleges the defense team was working under an excessive caseload,
did not spend the necessary time on Hilton's case, and overlooked correctional
officer Caleb Wynn's report in the evidence. The defense team was not deficient
due to overwork or failure to prepare Hilton's case, The defense team had enough
time to prepare for Hilton's case during the thirty-six months Hilton's case was
pending and they accomplished an enormous amount of work during that time.
Su!Jer was unfamiliar with Officer Wynn only because he had not been properly
disclosed to the defense. Any claim as to the discovery violation could have been

1732
raised on appeal and is not a proper subject for postconviction relh:f. When
Officer Wynn was presented to testify, Suber responded adequately by raising
proper objections and taking steps to prepare for his testimony. Hilton has failed to
prove any deficient conduct on Suber's part. Further, Hilton has failed to show
any prejudice. Suber would not have been able to exch.tde or change Officer
Wynn's testimony if she had. been aware. of it earlier. Hilton has not shown that
additional time to prepare for Officer Wynn's testimony would have had any
reasonable probability of changing the outcome df Hilton's trial. This claim is
denied.
Claim 3: Whether Trial Co.unsel was lneffective for Failing to Present a
Cohesive, United Defense in the Guilt and Penalty Phases of Bilton's
Trial

Hilton alleges defense· counsel was ineffective because the penalty phase
strategy to blame Hilton's sudden change in behavior on Ritalin overdose was
inconsistent with the reasonable doubt defense used in the guilt phase, The
defense team's petfbrmance was not deficient because the guilt and penalty phase
strategies did not conflict with each other and the defense team's strategies were
reasonable given the realities of the evidence in Hilton's case. The evidence of
guilt was overwhelming and presented few defenses, an intdxication-induced
insanity defense was not legally viable, and Hilton told the team he wanted to
"fight everything" at trial. As such, the defense team's guilt phase strategy to
focus on establishing reasonable ddubt was a reasonable trial strategy and was not
inconsistent with the pertalty phase strategy. Hilton has failed to prove any
deficient conduct. Further, Hilton has failed to prove prejudice by the defense

10

1733
team's choices on strategy because there was no guilt or penalty phase theory that
would have had a reasonable probability of changing the outcome of Hilton's trial,
given the voluminous evidence of guilt and six weighty aggravators in: his case.
This claim is denied.
Claim 4: Whethet Hilton is entitled to Relief Pursuant to Hurst v.
Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla.
2016)

Hilton alleges that he is entitled to a new penalty phase pursuant to Hurst v.

Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016).
Hilton is not entitled to relief because the jury in his case unanimously
recommended death and the Florida Supreme Court has repeatedly relied on a
unanimous death recommendation t0 find Hurst error hannless beyond a
reasonable doubt. Hilton's juty was properly instructed that one aggravator must
be proven beyond a reasonable doubt before they could consider the death penalty,
that the jury must determine whether sufficient aggravators. exi&t to justify the
death penalty, and whether the aggravators outweighed the mitigators. The jury
was cautioned that they were never required to recommend a death s.entence and to
carefully consider the evidence. The unanimous death recommendation and the
instructions the juty received provide the basis to conclude that the jUry made the.
required findings under Hurst. Aside from the jury verdict, this Court has no
reasonable doubt that any Hurst error in this case was harmless beyond a
reasonable doubt and Hilton is not entitled to relief. This claim is denied.

li

1734
 Claim 5: Whether Trial Counsel was Ineffective for Failing to Object to
Hilton's Eligibility for the Death Penalty

Hilton alleges that his trial counsel was ineffective for failing to argue that
his mental illness make-s him ineligible for the death penalty under the Eighth
Amendment. Hilton has offered no plausible evidence in support of this contention.
To the extent, Hilton is contending that he is not currently mentally eligible for
execution, that claim is unripe. Hilton has failed to prove any deficiency on the
part. of trial counsel as to this issue. Further, Hilton has failed to prove how trial
counsel's failure to raise this claim would have changed the outcome of his trial.
This claim is denied.
Claim 6; Whether Trial Counsel was Ineffective .for Failing to Preserve
for Appeal the Denial of Cause Challenges During Jury Selection1

Hilton alleges that trial counsel Was ineffective for failing to preserve the
denial of cause challenges in accordance with Trotter,2 so that such denials could
be raised on appeal. Hilton's claim is facially insufficient because he fails to
identify which cause challenges should have been preserved ancl fails to identify
specific jurors that harbored actual bias. Hilton was given an opportunity to amend
thi!i legally insufficient claim, but the I;Uilendment failed to cure this error. Hilton
was not prejudiced by trial counsel's hanclling of the cause challenges in his case
because. none of the jurors that served on his jury harbored actual bias against him.
As such, Hilton was rtot legally prejudiced by their service on his jury. This claim
is denied.

r. This clailll is sequentially numbered as Claim 6 but Hilton's. Motion, presumably due to typographical error, has
ti)i.s claim listed as Claim 7. (Motion at 73).
>Trotter y, State, 576 So. 2d 691 (Fla. 1990)

12

1735
 Claim 7: Cumulative Errorl
Hilton alleges that he did not receive a fair trial due to the numerous errors
in his case. He asserts that the errors complained of in his Motion tainted his case
and these errors are not harmless. Since the court has not found legally deficient
conduct as to any of the claims, he is not entitled to cumulative .error relie£
Assuming deficient conduct, the claims taken in combination do not show a
reasonable likelihood of a different result. Thi.s claim is denied.
For all the reasons as set out above the Defendant's motion is denied.
Defendant is advised that he has 30 days to file an appeal to this Court's

ruling. . . -\-\.A...
DONE AND ORDERED this Ll_ day of February, 2019, in Tallahassee,
Leon County, Florida.

Copies:
Eddie Evans, Assistant State Attorney
Georgia Cappleman, Assistant State. Attorney
Robert A. Morris, Counsel for Defendant
Jennifer Keegan, Assistant Attorney General

3 This claim is s¢quentiallynumbered as. Claim 7 but Hilt<1n"s.Motiort, presumably due to typographical error, has
this claim listed as Claim 8. (Motion at 74).

13

1736
Filing# 86033707 E-Filed 03/07/2019 02:03:45 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs CASE NO. 2008-CF-000697A

DIVISION: FELONY
GARY MICHAEL HILTON,
Defendant.
------------------~1
NOTICE OF APPEAL

COMES NOW, the Defendant, and files this NOTICE OF APPEAL to the

Florida Supreme Court, to appeal the 3.850 Post-Conviction hearing held on October 30,

31 and November I, 2018 and the Court's Order Denying Defendant's Motion for Post-

Conviction Relief dated February 11, 2019 in the above-styled Case.

RESPECTFULLY SUBMITTED,

IIs !!i£.4b?£ ,c)f(J/tM,;; - - - - - - -

ROBERT A. MORRIS, ESQUIRE/or
The Law Offices of Robert A. Morris, LLC
Florida Bar Number 0144680
911 East Park Avenue
Tallahassee, Florida 32301
(850) 792-1111 Facsimile (850) 792-1113
ATTORNEY FOR DEFENDANT
COURT APPOINTED
alex@ramlawyer.com
efiling@ramlawyer.com

1737
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic Mail to: SA02 Leon@leoncountyfl.gov OFFICE OF THE STATE ATTORNEY,

SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, 301 S. Monroe Street,

Suite 475, Leon County Courthouse, Tallahassee, Florida 32301, service.leon@flpd2.com

PUBLIC DEFENDER'S OFFICE, 301 S. Monroe Street, Suite 401, Leon County Courthouse,

Tallahassee, Florida 32301 and crimapptlh@myfloridalegal.com THE ATTORNEY

GENERAL'S OFFICE, DEPARTMENT OF LEGAL AFFAIRS, APPEALS DIVISION,

The Capitol Building, PL-01, Tallahassee, Florida 32301, on this 7th day ofMarch, 2019.

!Is f!Jf~£.o/..//t:,/,;, _ _ _ _ _ __
ROBERT A. MORRIS, ESQUIRE

1738
Filing# 86033707 E-Filed 03/07/2019 02:03:45 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs CASE NO. 2008-CF-000697A

DIVISION: FELONY

GARY MICHAEL HILTON,

Defendant.
----------------~/

STATEMENT OF JUDICIAL ACTS TO BE REVIEWED

COMES NOW, the Defendant, pursuant to Rule 9.140, Florida Rules of Appellate

Procedure, and states that the following Judicial Acts are to be reviewed by the Florida Supreme

Court.

I. The Defendant's Post-Conviction hearing held on October 30, 31 and November

I, 2018.

2. The Court's order denying the Defendant's Motion for Post-Conviction Relief

dated February II, 2019.

RESPECTFULLY SUBMITTED,

/Is §{l,d;,,cS:y/..//tvu;; _ _ _ _ _ _ __
ROBERT A. MORRIS, ESQUIRE for
The Law Offices of Robert A. Morris, LLC
Florida Bar Number 0144680
911 East Park Avenue
Tallahassee, Florida 32301
(850) 792-1111 Facsimile (850) 792-1113
ATTORNEY FOR DEFENDANT
COURT APPOINTED
alex@ramlawyer.com
eliling@ramlawyer.com

1739
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic Mail to: SA02 Leon@leoncountytl.gov OFFICE OF THE STATE ATTORNEY,

SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, 301 S. Monroe Street,

Suite 475, Leon County Courthouse, Tallahassee, Florida 32301, service.leon@tlpd2.com

PUBLIC DEFENDER'S OFFICE, 301 s. Monroe Street, Suite 401, Leon County Courthouse,

Tallahassee, Florida 32301 and crimapptlh@mytloridalegal.com THE ATTORNEY

GENERAL'S OFFICE, DEPARTMENT OF LEGAL AFFAIRS, APPEALS DIVISION,

The Capitol Building, PL-01, Tallahassee, Florida 32301, on this 7fh day of March, 2019.

1740
Filing# 86033707 E-Filed 03/07/2019 02:03:45 PM

IN THE CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT, IN
AND FOR LEON COUNTY, FLORIDA

STATE OF FLORIDA,

vs CASE NO. 2008-CF-000697A

DIVISION: FELONY

GARY MICHAEL HILTON,

__________
Defendant.
/

MOTION FOR ORDER DIRECTING COURT REPORTER(S) TO TRANSCRIBE

COMES NOW, the Defendant, by and through the undersigned counsel, and

moves this Honorable Court, pursuant to Rule 9.200, Florida Rules of Appellate

Procedure, to enter an order directing that the 3.850 Post-Conviction hearing held before

the Honorable James C. Hankinson, on October 30, 31 and November 1, 2018 be

transcribed by the official court reporter and the costs taxed to Justice Administrative

Commission. The original and two copies of said proceedings are to be filed with the

Clerk of the Circuit Court, Leon County, Florida within thirty days ofthe date of the

Court's Order.

1741
 RESPECTRULLY SUBMITTED,

//s !J&,,C,,,: cCr/..,IZ,,.-4 - - - - - -

ROBERT A. MORRIS, ESQUIRE
The Law Offices of Robert A. Morris, LLC
Florida Bar Number 0144680
911 East Park Avenue
Tallahassee, Florida 32301
(850) 792-1111 Facsimile (850) 792- I 113
A TIORNEY FOR DEFENDANT
COURT APPOINTED
alexia),ramlawyer ,com
efiling@ramlawyer.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by

Electronic Mail to: SA02 Leon@leoncountyfl.gov OFFICE OF THE STATE ATTORNEY,

SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, 301 S. Monroe Street,

Suite 475, Leon County Courthouse, Tallahassee, Florida 32301, service.leon@flpd2.com

PUBLIC DEFENDER'S OFFICE, 301 S. Monroe Street, Suite 401, Leon County Courthouse,

Tallahassee, Florida 32301 and crirnapptlh@rnyfloridalegal.com THE ATTORNEY

GENERAL'S OFFICE, DEPARTMENT OF LEGAL AFFAIRS, APPEALS DIVISION,

The Capitol Building, PL-01, Tallahassee, Florida 32301, on this 7th day of March, 2019.

//s .:~t/%,,:cW,//t?Md ________

ROBERT A. MORRIS, ESQUIRE

1742
Filing# 86075933 E-Filed 03/08/2019 09:42:23 AM

IN. THE CIRCID':r cOt:IR)' OF THE

SE(:OND JUDlCIAL CIRCUIT, IN
AND FORLEON COUNTY,. FLORIDA

STATE OF FLORIDA,

CASE NO. 2008..C.F•000697A

DIVISION; FELONY
GARY MICHAEL IDLTON,
Defend!lnt.

-------------------'
ORDER DIRECTING COURTREPORTER(S) TO TRANSCRIBE

TillS CAUSE,. coming .on to be. heard uponthe Defendant's .Motion fotOrder

Directing Court Reporter(s) to Transcribe !!f certain proceedings in this cause necessary for

appeal, it is hereby, .

ORDERED AND ADJUDGED that the Official Court Rep()rter is directed to transcribe

the iL8.50 Post-Convic.tion hearing held. before the Honorable James C. Hankinson on October

.30, 31 and November I, 2018 in the above-styled cause. Said notes of said proceedings shall be

filed with the Cletk of the SetQnd Judicial Circuit, Le()n County, Fl!!rida, within thirty (30). days

ofthe date ofthfs Order.

Filrther, it is

ORDERED AND ADJUDGED that the cost of tranScribing the above proceedings shall

be. home byJustice.Administrative Commission.. +"'-

DoNE AND oRDERED in Tallahassee, Leon Connty, Florida, this i? day of
March, 20.19.

Copies furnished to:

ROBERT A. MORJUS, ESQ.
ATTORNE~ GENERALIS OFFICE
StATE ATTORNEY'S O:F.flC:E
OFFICIAL COURt llliPORTER
PUBLIC DEFENDER'S OFFICE 1743
 CERTIFICATE OF CLERK

STATE OF FLORIDA

COUNTY OF LEON

I, Gwen Marshall, Clerk and Comptroller Leon County, Florida, do

hereby certify that the foregoing page(s) of the inclusive contains the record
GARY MICHAEL HILTON V. STATE OF FLORIDA and is a true and
correct recital of all such papers and proceedings in said cause as appears in
the records and files in my office that have been directed to be included in
said record pursuant to the Florida Rules of Appellate Procedure.

In Witness Whereof, I have hereunto set my hand and affixed the Seal
of said MARCH 15TH, 2019.

GWEN MARSHALL
CLERK AND COMPTROLLER
LEON COUNTY, FLORIDA

BY: DAVIDL.HUBERT
David L. Hubert, Deputy Clerk

1744