oN
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 86-3773
PUBLISH
THEODORE ROBERT BUNDY,
Petitioner-Appellant,
versus
RICHARD L. DUGGER, Secretary,
Department of Corrections,
State of Florida,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(July 7, 1988)
Before VANCE, KRAVITCH and JOHNSON, Circuit Judges.
JOHNSON, Circuit Judge:
ax! s
" Theodore Robert Bundy was convicted and sentenced to
death in Florida for the murder of Kimberly Leach.! on
lpuring the tine Bundy was awaiting trial in this case,
he was convicted and sentenced to death for two murders
committed in Tallahassee ("Leon County case"). Bundy v.
State, 455 So. 2d 330 (Fla. 1984). This Court has remanded
Bundy's federal habeas corpus challenge in that case to the
undy Vv Wainwr sant 808 F.2d i410 i 1987)
direct appeal, the Florida Supreme Court affirmed the
conviction and sentence. Bundy v. State, 471 So. 24 9 (Fla.
1985), cert. denied, 107 S. Ct. 295 (1986). The Governor of
Florida signed a death warrant scheduling Bundy's execution
for November 18, 1986. On November 17, Bundy was
unsuccessful in state post conviction and habeas corpus
proceedings. Bundy v. State, 497 So. 2d 1209 (Fla. 1986).
Bundy immediately filed an application for a stay of
execution, a petition for a writ of habeas corpus, and an
application for a certificate of probable cause with the
United States District Court for the Middle District of
Florida. On November 17, the district court, having reviewed
the trial record in advance, dismissed the petition without a
hearing and denied the applications for a stay of execution
and for a certificate of probable cause. Bundy v.
Wainwright, No. 86-968-CIV-ORL-18 (M.D. Fla. Nov. 17, 1986).
This Court subsequently granted a certificate of probable
cause and a stay of execution pending appeal. Bundy v.
Wainwright, 805 F.2d 948 (llth Cir. 1986) (No. 86-
3773) (Bundy II), application to vacate stay denied, 107 S.
ct. 483 (1986).
After briefing and oral argument, this Court remanded
the case to the district court for the limited purpose of
conducting an evidentiary hearing into Bundy's competence to
stand trial. Bundy v. Dugger, 816 F.2d 564 (llth Cir.),
cert. denied, 108 S. Ct. 198 (1987). On remand, the district
court conducted an evidentiary hearing and concluded that
Bundy was competent to stand trial. Bundy v. Dugger, 675 F.
Supp. 622 (M.D. Fla. 1987). This Court ordered supplemental
briefing on the competence to stand trial issue and heard
oral argument.
I. Abuse of the Writ
We expressly state at the outset a conclusion implicit
in the earlier decision of a limited remand: Bundy's first
federal habeas corpus petition should not be dismissed for
abuse of the writ. Typically, "abuse of the writ" principles
apply to second or successive petitions that present claims
that were raised, or that could have been raised, in previous
petitions. See 28 U.S.C. § 2254 Rule 9(b); see also Antone
——— antone
v. Dugger, 465 U.S. 200 (1984). Although this is Bundy's
first petition, the district court considered the petition
abusive:
At approximately 2:30 p.m. on November 17,
1986, sixteen and one half hours prior to the time
Mr. Bundy is scheduled to be executed, the
petitioner filed a 183 page petition for writ of
habeas corpus asking this [C]Jourt to stay the
execution and grant relief to the petitioner. This
Court considers the petition filed under these
conditions to be abusive. Davis v. Wainwright, 107
S.Ct. 17 (1986).
Slip op. at l.
We disagree.2 Even assuming arguendo that a first
—
2Despite its comment that it considered Bundy's petition
abusive, the district court added that it would "give the
petitioner a conscientious review of the issues." Slip op.
at 1. Consequently, it cannot be said that the district
court dismissed the petition for abuse of the writ.
3
petition could be dismissed as an abuse of the writ because
it was filed on the eve of execution,? this case does not
present an abusive situation. The United States Supreme
Court denied certiorari review of Bundy's direct appeal on
October 14, 1986. On October 21, the Governor of Florida
signed a death warrant scheduling Bundy's execution for
November 18. Bundy began state postconviction and habeas
proceedings on November 7 and those proceedings concluded on
November 17. Bundy then filed his federal petition. Under
these facts, the filing on the eve of execution does not
constitute abuse of the writ.4
3the district court misplaced its reliance on Justice
Powell's concurring opinion in Davis. See 107 S. Ct. at 18
(Powell, J., concurring) ("In the future, and here I can write
only for myself, I will expect counsel whose papers are filed
with me as Circuit Justice on the eve of the execution date,
to make an appropriate explanation."). Despite Justice
Powell's admonition, the full Supreme Court granted stays of
execution, although the applications for stay were not filed
until the day before the scheduled execution. Consequently,
Davis does not support the district court's observation.
Likewise, none of the cases cited by the state support the
proposition that a first petition can be dismissed as abusive
because it was filed on the eve of execution. Furthermore,
this Court subsequently held in Davis v. Dugger, 829 F.2d
1513, 1514 (llth Cir. 1987), that "the scheduling of an
=—_——
excuse failure to raise claim in a prior petition); Adams v.
Wainwright, 804 F.2d 1526, 1533-34 (llth Cir. 1986) (time
constraints do not excuse failure to develop facts associated
with claim raised in a prior petition).
4We likewise find no basis to dismiss the petition as a
"delayed" petition, ee 28 U.S.C. § 2254 Rule 9(a).
Stgtioe
ly, the state's argument that Bundy's petition
ts fr volous claims and, therefore, a finding of abuse
strengtt
anted is without merit. Rule 9 does not examine the
1 of the claims. f. 28 U.S.C. § 2254 Rule 4.
4
= II. Competence to Stand Trial
As set forth above, the district court, after a limited
remand from this Court, conducted an evidentiary hearing and
concluded that Bundy was competent to stand trial. Bundy v.
Dugger, 675 F. Supp. 622 (M.D. Fla. 1987). We begin our
analysis by setting forth the applicable legal standards
central to our review of the district court's conclusion.
First, "(t]he legal test for mental competency is whether, at
the time of trial and sentencing, the petitioner had
‘sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding! and whether he
had 'a rational as well as factual understanding of the
proceedings against him.'" Adams v. Wainwright, 764 F.2d
1356, 1359-60 (11th Cir. 1985) (quoting Dusky v. United
States, 362 U.S. 402, 402 (1960)), cert. denied, 474 U.S.
1073 (1986). Second, Bundy had the burden of proof on
remand: "At the ensuing district court hearing, petitioner
_———-
{the defendant] bears the burden of proving the fact of
incompetency by a preponderance of the evidence." Price v.
Wainwright, 759 F.2d 1549, 1553 (llth Cir. 1985) (citing
Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir. 1978) (en
banc)). Third, the standard of appellate review provides:
Before the court can meaningfully apply [the
Dusky] legal standard . . . it must often ascertain
the nature of petitioner's allegedly incapacitating
illness. It is at this initial juncture that
5
¥
®
vrll
expert testimony is particularly valuable, for the
existence of even a severe psychiatric defect is
noe always apparent te—lavien. Because of this
ifficulty in detecting medical diseases, the trial
court may find it necessary to make an initial
factfinding on whether the accused suffers from a
mental defect at all. Although sometimes
dispositive of the ultimate competency question,
this medical inquiry is properly classified as pure
facttinding and reviewabis- only Under the -cleariy
erroneous standard.
Once it is established that an individual
suffers from a clinically recognized disorder, the
court must decide whether such condition rendered
the accused incompetent under the Dusky
formulation. . . . ([T]his second stage
determination of legal incompetency is subject to a
review arly erroneous
ru To insure protection of valuable
constitutional rights, this court is bound to take
a hard look at the ultimate competency "finding."
Bruce v. Estelle, 536 F.2d 1051, 1059-60 (5th Cir. 1976),
cert.
denied, 429 U.S. 1053 (1977) .5
somewhat
(| standard of review we should apply to the district court's
finding that Bundy was competen o stand trial. Under one
line
5From our predecessor circuit we have inherited two
i t. ines of authori i espect to the
of cases a district court's finding of competency to
tand trial is a finding of fact that can be set aside only
if clearly erroneous or arbitrary. See United States v.
Hayes, 589 F.2d 811, 822 (5th Cir.), cert. denied, 444 U.S.
847 (1979); United States v. Fratus, 530 F.2d 644, 647 (5th
Cir.), cert. denied, 429 U.S. 846 (1976); United States v.
Stone, 472 F.2d 909, 913 (5th Cir. 1973), cert. denied, 449
Cir.
1020 (1980); United States v. Gray, 421 F.2d 316, 317
Cir. 1970); see also United States v. Birdsell, 775 F.2d
648 (5th Cir. 1985), cert. denied, 476 U.S. 1119 (1986).
is consistent with the approach taken by other circuits.
e.g., McFadden v. United States, 814 F.2d 144, 146 (3d
1987); United States v. Lovelace, 683 F.2d 248, 251 (7th
1982); Chavez v. United States, 656 F.2d 512, 517 (9th
1981); United States v. Caldwell, 543 F.2d 1333, 1349
(D.C. Cir. 1974), cert. denied, 423 U.S. 1087 (1976) (all
using the clearly erroneous standard). In_anoth: ine
cases, however, the Fifth Circuit has been less deferential,
reviewing historical facts under a clearly erroneous standard
but taking a more stringent "hard look" at the district
6
Bruce suggests that a district court's determination of
competency. should proceed in two parts: (1) Does the
defendant suffer from a clinically recognized disorder? and
(2) if so, did that disorder render the defendant incompetent
under the Dusky standard? In the present case, Bundy argued
that he suffered from bipolar mood disorder. § Although the
district court did not segregate its analysis as suggested by
Bruce, our reading of the district court's opinion,
particularly the conclusion,’ indicates that the district
court's ulti - See Lokos v. Capps,
625 F.2d 1258, 1267 (5th Cir. 1980); Bruce v. Estelle, 536
F.2d 1051, 1059-60 (5th Cir. 1976), cert. denied, 429 U.S.
1053 (1977); United States v. Makris, 535 F.2d 899, 907 (5th
Cir. 1976), cert. denied, 430 U.S. 954 (1977); see also Wheat
v. Thigpen, 793 F.2d 621, 631 (5th Cir. 1986), cert. denied,
107 S. Ct. 1566 (1987).
s is inconsistency. Instead,
We Will assume that the stricter "hard look" standard applies
and analyze the district court's finding under that standard.
' Because we_would upbosd the district court's finding
that Bundy was competent to stand trial under either
*K tandard, we need not resolve th
6a bipolar mood disorder is better known as manic
depressive mental illness. Bipolar mood disorders are
characterized by wide changes in mood or mood swings. During
the manic phase, the person can be loud, angry, violent, or
grandiose. At the other extreme, the person would experience
periods of extreme depression.
7?he district court concluded:
Upon reviewing the voluminous records in this
case, observing the demeanor of each of the
witnesses, and considering the expert testimony
concerning Petitioner's competency to stand trial
for the murder of Kimberly Diane Leach, the Court
accepts the testimony and opinions of Dr. Charles
Mutter and Dr. U[mJesh Mha[t]re as being™logical
and consistent with the testimony of other
witnesses,” as well as the record evidence, tape
recordings and video cassette recordings submitted
7
court determined that, even if Bundy otherwise suffered from
bipolar mood disorder, the disorder was not manifesting
itself so as to affect his competence to stand trial.
Consequently, pursuant to Bruce, we take a "hard look" at the
ultimate competency "finding."
for consideration in this cause. Accordingly, the
Court finds that Petitioner, Theodore Robert
Bundy, possessed sufficient present ability to
consult with his attorneys with a reasonable degree
of rational understanding, and that Petitioner had
a rational as well as factual understanding of the
proceeding against him at all relevant times during
the trial and pretrial proceedings in the Kimberly
Diane Leach murder case.
Petitioner appreciated the charges that were
pending against him and he understood and
appreciated the range and nature of the possible
jeopardy he faced if convicted for the murder of
Kimberly Diane Leach. Petitioner clearly
understood the adversary nature of the proceedings
in the Leach murder case and was well informed as
to the legal process. Petitioner had the ability
and capacity to disclose to his attorneys pertinent
facts surrounding the murder of Kimberly Leach.
Petitioner also related well with his attorneys in
the Leach murder case, and Petitioner, on many
occasions, assisted his attorneys during the course
of the Leach murder trial and pretrial proceedings.
Petitioner was clearly motivated to help his case,
and he was actively involved in the planning of
defense strategy. Further, it is clear from the
numerous depositions taken by Petitioner that
etitioner was not only mot es.
winning defense, but he was also an effective
quest oner. Finally, the Court notes that
etitioner had no problem adjusting to the stress
of incarceration prior to trial. Consequently, the
Court finds as a matter of law that Petitioner,
Theodore Robert Bundy, was at all times competent
to stand trial for the murder of Kimberly Diane
Leach.
Bundy, 675 F. Supp. at 634-35.
\
Bundy argues that, although he had a factual
understariding of the proceedings against him, he lacked a
rational “understanding of those proceedings and a rational
understanding necessary to consult with his lawyer. We have
undertaken a detailed review of the record and given a "hard
look" to the district court's conclusion of "competency."
Based upon the record evidence of the testimony (including
depositions) at the evidentiary hearing and the associated
exhibits, we hold that the district court's findings of
historical fact were not clearly erroneous, see Amadeo v.
Zant, 56 U.S.L.W. 4460 (U.S. May 31, 1988), and thus we will
not reiterate the district court's findings here. We do,
however, highlight the record evidence that leads us to
conclude, after a "hard look," that Bundy was competent to
stand trial.®
Dr. Dorothy Lewis and Dr. Emanuel Tanay, both
psychiatrists, testified? that Bundy was incompetent to stand
trial. Dr. Charles Mutter and Dr. Umesh Mhatre, both
psychiatrists, testified in rebuttal for the State. The
district court credited the testimony of Drs. Mutter and
Mhatre. We agree with the district court's observation that
8pundy also raises claims concerning ineffective
assistance of counsel relating to Bundy's competence to stand
trial. In light of our conclusion that Bundy was competent
to-stand trial, the related ineffective assistance of counsel
claims lack merit.
9pr. Tanay's testimony was from a deposition taken on
December 14, 1987.
|
l
their testimony better accorded with the testimony of other
witnesses. and the associated exhibits. 10
For example, Judge Wallace Jopling, the presiding judge
at the Lake City trial, and prosecutors George Dekle and
Jerry Blair testified about Bundy's actions at trial. This
testimony indicates that Bundy's actions were inconsistent |
with the actions of a person manifesting bipolar mood
disorder.11
In addition, the exhibits from the hearing, largely
ignored by Bundy in his supplemental brief, indicate that
Bundy was competent to stand trial. The videotape of Bundy's
argument to Judge Jopling prior to sentencing shows that
Bundy delivered a cogent, well-reasoned argument. Bundy
focused on the effect of pretrial publicity on the jury and
argued that the jury was overwhelmed more by the quantity,
than the quality, of the state's evidence. Bundy can be seen
10Bundy emphasizes in his brief that only Dr. Lewis had
recently interviewed him and that Drs. Mutter and Mhatre had
not. We agree with the explanation of Drs. Mutter and Mhatre
that a recent interview was unnecessary because the narrow
issue of focus was Bundy's competence to stand trial at the
time of the trial. Similarly, we reject the suggestion in
Bundy's brief that Dr. Mhatre's opinion is entitled to less
weight because Dr. Mhatre interviewed only one of Bundy's
defense lawyers. Dr. Mhatre interviewed Victor Africano,
Bundy's lawyer during the Lake City trial.
lipundy did express (out of the presence of the jury)
dissatisfaction at the selection of one of the jurors.
Considerable testimony before the district court, however,
suggests that either the outburst was calculated to win favor
from Bundy's péers on death row or it was legitimate in light
of the juror's statements.
10
flipping pages of a legal pad as he goes through his
The: tapes made by Bundy22 while awaiting the verdict and
shortly after the verdict strongly demonstrate that Bundy had
a rational understanding of the proceedings. For example,
on tape I (recorded while the jury was deliberating), Bundy
describes his displeasure at one of the trial judge's
vi instructions, evaluates some of the evidence against him, and
criticizes the state's closing argument for referring to
facts not in evidence. On tape G (recorded two hours after
the jury returned its guilty verdict), Bundy recalls that
after closing argument he bet members of the defense team
that the jury would be back within three hours with a guilty
verdict: "I was attempting to protect myself -- insulate
myself from the terribly harsh consequences of a guilty
‘verdict .... " On that tape, Bundy recalls evaluating the
trial proceedings: "I can remember throughout the course of
the trial, my counsel, myself, speculating on the reactions
V of jurors to state witnesses, the reactions of jurors to
defense witnesses, speculating on the ineffectiveness of
certain state witnesses, and the convincing qualities of our
witnesses." On tape H (recorded on the morning after the
jury returned its guilty verdict), Bundy describes how, when
he woke up that morning, "I immediately began thinking about
v the statements I'm going to make to the jury during the
12these tapes were to be used to prepare a book about Bundy.
11
penalty phase and the statements I'm going to make to the
judge wher he sentences me. Right now my concern lies with
just what the tenor of those comments should be."
Consequently, a "hard look" at the record evidence supports
the conclusion that Bundy was competent to stand trial.13
III. Choice of Counsel
Bundy argues that he was denied his Sixth Amendment
right to choice of counsel. This claim overlaps with
Bundy's claim that his counsel provided ineffective
assistance of counsel by failing to raise this claim on
direct appeal. Shortly after his indictment, Bundy asked the
trial court to grant the motion of Georgia attorney Millard
Farmer to be admitted pro hac vice. The trial court denied
the. motion after conducting an evidentiary hearing and
allowing oral argument. See State v. Bundy, No. 78-169-CF
(Fla. Cir. Ct. Columbia County Sept. 22, 1978) (Jopling,
J.) (R.14,117; vol. 156, app. 37).14 on direct appeal, Bundy
13 we recognize that in the decision of remand this
Court focused on "strong indicia" of possible incompetence to
stand trial. See Bundy II, 816 F.2d at 567. This Court
cautioned, however, that a final determination could be made
only after a full and fair evidentiary hearing. Id. at 568.
Our review of the record in light of the district court's
observations concerning these indicia convinces us that what
appeared as "strong indicia" prior to the hearing are
happenings that are consistent with a determination that
Bundy was competent to stand trial.
14punay claims in his federal habeas corpus petition
that "[t]he ground for the court's denial was a contempt
citation arising from Mr. Farmer's persistent objection, in a
Georgia criminal matter, to the prosecutor referring to the
black defendant by his first name rather than by his surname,
as the prosecutor referred to other persons in the
12
did not claim that he was denied the counsel of his choice.
Bundy then vaised this claim in state postconviction
proceedings. The Florida Supreme Court found this claim
procedurally barred because it could have been raised on
direct appeal. See Bundy, 497 So. 2d at 1210. The Court
also found Bundy's related ineffective assistance of
appellate counsel claim to be without merit. Id. at 1211.
Bundy then raised the choice of counsel claim and the
related ineffective assistance of appellate counsel claim in
his federal habeas corpus petition. The district court
determined that the choice of counsel claim was procedurally
defaulted, see slip op. at 9, and the related ineffective
Y¥ assistance of counsel claim was not a basis for relief
because the district court had denied relief on the merits of
the choice of counsel claim.15 See slip op. at 12.
We conclude that Bundy's failure to raise the choice of
{| counsel claim on direct appeal constitutes procedural
default. See Murray v. Carrier, 477 U.S. 478 (1986).
Consequently, Bundy must show both cause for noncompliance
proceeding." See para. 92 (emphasis added) (citing Farmer v.
Holton, 245 S.E.2d 457 (Ga. App. 1978) (overruled by In re
Crane, 324 S.E.2d 443, 446 (Ga. 1985)), cert. denied, 440
U.S. 958 (1979). We note that the trial court did not base
its denial solely on the Farmer v. Holton decision. See
R:14,121-22. For reasons set forth in the text infra, we do
not evaluate the trial court's denial of the motion to appear
pro hac vice.
15we agree with Bundy that the district court did not
address the merits of the choice of counsel claim and thus
v erred in its reasoning for rejecting the related ineffective
assistance of counsel clain.
13
with the state rule and actual prejudice resulting from the
alleged constitutional violation. Smith v. Murray, 477 U.S.
527, 533-(1986).
Bundy contends that ineffective assistance of his
appellate counsel satisfies the cause requirement.1® See
Carrier, 477 U.S. at 488 ("Ineffective assistance of counsel
. « « is cause for a procedural default."). We disagree as
we do not find Bundy's counsel ineffective.17 The supreme
Court's decision in Smith informs our analysis. The Supreme
Court reasoned that, when viewed in light of state law at the
time of direct appeal, the decision not to raise the claim
“fell well within the ‘wide range of professionally competent
assistance' required under the Sixth Amendment to the Federal
Constitution." Smith, 477 U.S. at 536 (quoting Strickland v.
Washington, 466 U.S. 668, 690 (1984)); see id. at 535 ("Nor
can it seriously be maintained that the decision not to press
the claim on appeal was an error of such magnitude that it
rendered counsel's performance constitutionally deficient
under the test of Strickland v. Washington, 466 U.S. 668
(1984)."); see also Jones v. Barnes, 463 U.S. 745, 751-54
16Because Bundy presented the ineffective assistance of
counsel claim as an independent claim to the Florida courts,
the exhaustion doctrine is not implicated here. See Carrier,
477 U.S. at 488-89.
17Because we do not agree that Bundy has satisfied the
"cause" requirement, we do not examine whether Bundy
demonstrated actual prejudice.
14
(1983) (recognizing that appellate counsel needs latitude in
selecting issues to raise on appeal).
In his direct appeal in the Leon County case, which
antedated the direct appeal in the present case, Bundy
raised the choice of counsel claim and the Florida Supreme
Court found it without merit. See Bundy v. State, 455 So. 2d
330, 347-48 (Fla. 1984).18 consequently, pursuant to Smith,
Bundy's counsel was not ineffective for not raising the
choice of counsel claim on direct appeal.19 Finally, this
is not "an extraordinary case" where the writ should be
granted even absent a showing of cause. See Carrier, 477
U.S. at 496; Smith, 477 U.S. at 537-39.
Iv. Ineffective Assistance of Counsel
Bundy argues that he received ineffective assistance of
counsel at trial on a number of grounds. The Florida Supreme
Court, see Bundy, 497 So. 2d at 1210, and the district
court, see slip op. at 9-12, held this claim without merit.
We affirm the district court because none of the asserted
18we also note that immediately after the denial of the
motion to appear pro hac vice in the Leon County case, Bundy
filed an action in federal court pursuant to 42 U.S.C. §
1983. Bundy alleged that the denial violated his Sixth
Amendment right to counsel. This Court, affirming on the
basis of the district court's opinion, concluded that Younger
v. Harris, 401 U.S. 37 (1971), precluded a federal court from
examining Bundy's claim. See Bundy v. Rudd, 581 F.2d 1126,
1129-30 (5th Cir. 1978), cert. denied, 441 U.S. 905 (1979).
19accordingly, Bundy could not rely on the novelty of
his legal claim as "cause" for noncompliance with Florida's
rules. See Smith, 477 U.S. at 536-37.
15
grounds satisfies both the performance and prejudice prongs
enunciatéd by Strickland v. Washington, 466 U.S. 668 (1984).
; Bundy first complains of ineffectiveness of trial
counsel in relation to the investigation concerning fiber
evidence, the hearing on the motion in limine to exclude
such evidence, the failure to object to the conclusions
testified to by the state's expert witness, and the failure
to have a defense expert testify regarding the fibers. We
have reviewed the record evidence and, particularly based
upon the cross-examination regarding the source of the van's
carpet, the users of the van, and the clothes worn in the
van; the arguments on the motion in limine; the cross-
examination of the state's expert, and the examination of
witnesses recalled as part of the defense's presentation, we
conclude that Bundy has failed to satisfy Strickland's
‘performance prong. In addition, in ruling on this claim in
the state postconviction proceeding, the trial court stated
that it would have permitted the evidence anyhow.
Consequently, it does not appear that the prejudice prong was
met.
Bundy next argues that he received ineffective
assistance of counsel in connection with the plea agreement.
A review of the record again demonstrates that Bundy has not
satisfied the performance prong. In addition, Bundy asserts
that counsel had to disclose damaging information to the
state in the course of negotiations. Bundy does not allege
16
what that information was or whether it was used at trial.
Consequently, this assertion does not raise a colorable
showing of prejudice sufficient to trigger an evidentiary
hearing.
Bundy next claims that he received ineffective
assistance of counsel because no evidence was presented at
the penalty phase of trial that he was suffering from a
mental disorder. As a related claim, Bundy argues that he
was denied effective assistance of counsel by counsel's
failure to investigate an insanity defense. The record
V indicates an insanity defense was investigated and that Bundy
rejected any suggestion that such a defense be presented. In
addition, Bundy would not admit complicity of the crimes upon
which he was convicted. Based upon Bundy's actions and the
actual presentation at the penalty phase, we cannot say that
Bundy has satisfied the performance prong. The record also
indicates that, even if such evidence were presented, the
state could produce countering evidence and thus, in light of
the aggravating circumstances, no prejudice resulted.
Finally, Bundy argues that he received ineffective
assistance of counsel because no challenge was made to the
use of prior convictions as aggravating circumstances. Bundy
does not suggest any basis for a challenge to the Utah
convictions. We cannot say that Bundy has satisfied the
performance prong as to his Leon County convictions. That
conclusion is buttressed by the Florida Supreme Court's
17
subsequent affirmance of those convictions. In addition, we
do not believe Bundy has satisfied the prejudice prong.
Three aggravating circumstances remain independent of the
Leon County convictions.
Vv. Faretta Inquiry
Bundy claims that the trial court failed to conduct a
proper inquiry into whether he should have been allowed to
represent himself during critical stages of the prosecution.
Faretta v. California, 422 U.S. 806 (1975). This claim
overlaps with Bundy's claim that his counsel provided
ineffective assistance of counsel by failing to raise this
claim on direct appeal.
On September 21,.1978, after the trial court orally
denied the motion for Farmer to appear o hac vice, the
trial court asked Bundy if he had other counsel to represent
him. In relevant part, Bundy replied:
[S]eeing that the Court in its wisdom has
denied me representation by Mr. Farmer, I will
proceed pro se.
In the first instance, I guess I should ask
for leave to proceed in proper person and submit in
support of my motion the case of Anthony Pasquale
Faretta versus the State of California 42[2] U.S.
806, case decided in 1975.
Supp. R3:144-45 (footnote omitted). The trial court
permitted Bundy to proceed pro se. Subsequently, at the
request of the state's attorney, the trial court asked Bundy
what education he had. Bundy replied in relevant part:
I have a Bachelor of Science in Psychology
from the University of Washington and two years of
law school. I think, however, if the Court will
18
read Faretta, the United States Supreme Court has
said- that the legal background or legal training of
a defendant who wishes to represent himself is not
an issue. If the man or woman wishes to represent
himself or herself, understandingly, knowingly and
voluntarily expresses the desire to do so, he or
she may exercise that Sixth Amendment right applied
to the States through the Fourteenth Amendment and
so I don't really think that an inquiry into my
background, beyond my stating that I knowingly and
voluntarily and understandingly take this step, is
necessary.
Id. at 147-48. On June 21, 1979, Bundy withdrew his waiver
of counsel and accepted Victor Africano as his attorney in
the Lake City case. R157:14,383. Africano served as Bundy's
attorney from that pre-trial point to the conclusion of the
direct appeal.
On direct appeal, Bundy did not claim he was denied a
proper Faretta hearing. Bundy then raised this claim in
state postconviction proceedings. The Florida Supreme Court
held:
We find that the appellant's fourth claim
{i.e., the Faretta inquiry] could have been raised
on direct appeal and is therefore barred from
consideration. Even if we were to examine the
claim, however, we would find it lacking in
substance. The trial court conducted an inquiry
into appellant's ability to act as his own counsel
prior to allowing him to represent himself, and
during this inquiry appellant himself alerted the
trial court to the teachings of Faretta. We may
not now reverse the trial court's finding of
appellant's ability to pursue his own
representation.
Bundy, 497 So. 2d at 1210. The Court also found Bundy's
related ineffective assistance of appellate counsel claim to
be without merit. Id. at 1211. Although the state asserted
before the district court that the Faretta inquiry claim was
19
subject to the procedural default doctrine, the district
court did not mention that doctrine, but rather concluded
that Bundy was not entitled to relief on the merits. See
slip op. at 12-13.
On appeal, the state renews its argument that the claim
is subject to the procedural default doctrine. When it is
clear that a state court is addressing a particular claim
(i.e., the Florida Supreme Court's reference to "the
appellant's fourth claim") and the state court expressly
states that the claim is barred from consideration, we
conclude that the state court has not excused the procedural
default when it proceeds alternatively and hypothetically to
address the merits of the claim. Consequently, we conclude
that Bundy's failure to raise the Faretta inquiry claim on
direct appeal constitutes procedural default. See Murray v.
Carrier, supra. Bundy thus must show both cause for
noncompliance with the state rule and actual prejudice
resulting from the alleged constitutional violation. Smith,
477 U.S. at 533.
Bundy again contends that ineffective assistance of his
appellate counsel satisfies the cause requirement.29 See
Carrier, 477 U.S. at 488 ("Ineffective assistance of counsel
- « . is cause for a procedural default."). Again, we rely
on the Supreme Court's analysis in Smith to conclude that
Bundy has not met the cause requirement. In light of Bundy's
20see supra note 16.
20
ce che trial court, and Africano's serving as
Bundy! s
direct appeal, "the decision not to press the claim on appeal
orney from well before trial to the conclusion of
was [{not] an error of such magnitude that it rendered
counsel's performance constitutionally deficient."21 smith,
477 U.S. at 535; see also Jones v. Barnes, 463 U.S. 745, 751-
54 (1983) (recognizing that appellate counsel needs latitude
in selecting issues to raise on appeal).
Alternatively, if the procedural default doctrine did
not preclude us from examining the merits of the Faretta
inquiry claim, we would conclude that Bundy was not entitled
to relief on this ground. This Circuit generally requires
that a trial judge conduct a waiver hearing to make sure that
the accused understands the risks of proceeding pro se. See
" Jackson v. James, 839 F.2d 1513, 1516 (llth Cir. 1988) and
cases cited therein. In the present case, the passage
quoted above indicates that the trial court did not inform
Bundy of the disadvantages of proceeding pro se. Bundy,
however, cited Faretta to the trial court and asserted that
en
he was "knowingly and voluntarily and understandingly
tak[{ing] this step." We do not decide whether these facts
_——————
constitute a "rare" case in which an exception to the hearing
2lpundy cannot argue that this claim is so novel as to
constitute cause. See Smith, 477 U.S. at 536-37. Nor is
this "an extraordinary case" where the writ should be granted
even absent a showing of cause. See Carrier, 477 U.S. at
496; Smith, 477 U.S. at 537-39.
21
requirement will be made. See Fitzpatrick v. Wainwright, 800
F.2d 1057,. 1064-68 (llth cir. 1986). Rather, we conclude
that any“ error by the trial court was harmless. As set forth
above, well before trial in the Lake City case, Bundy
accepted Victor Africano as his attorney. Africano served as
Bundy's attorney from that point to the conclusion of direct
appeal. Accordingly, the Faretta inquiry claim and the
related ineffective assistance of appellate counsel claim are
without merit.
VI. Race of the Victim
Bundy argues that the Florida death penalty is.
unconstitutionally applied because it is disproportionately
imposed in cases, such as the present case, where the victim
is white. On collateral review, the Florida Supreme Court
held that this claim was without merit. See Bundy, 497 So.
2d at 1210-11. Consequently, the procedural default doctrine
does not apply.
The district court also held that this claim was without
merit. See slip op. at 13. On appeal, Bundy argues that
the district court erred in denying him an evidentiary
hearing on this claim. We disagree. Bundy relies solely on
studies allegedly showing systematic discrimination on the
basis of the victim's race. This Court repeatedly has
rejected these studies as grounds for an evidentiary hearing
or relief. See Funchess v. Wainwright, 788 F.2d 1443, 1445-
46 (llth Cir.), cert. denied, 475 U.S. 1133 (1986); Thomas v.
22
Wainwright, 767 F.2d 738, 747-48 (llth Cir. 1985), cert.
denied, 475 U.S. 1031 (1986), and cases cited therein. In
addition, Bundy points to no evidence that the decision
makers in his case acted with discriminatory purpose. See
McCleskey v. Kemp, 107 S. Ct. 1756, 1765-1770 (1987).
VII. Hypnotically Refreshed Testimony
Bundy argues that the use of Clarence L. "Andy"
Anderson's hypnotically enhanced testimony violated his Sixth
Amendment right to confrontation and his Fourteenth Amendment
due process right to a fair trial.22 anderson was the
state's only eyewitness to the abduction of Kimberly Leach on
February 9, 1978. On July 18, 1978, Anderson first went to
the police because the profile of a person he had seen on a
television newscast bore a striking resemblance to the man he
had earlier observed with a girl near the Lake City Junior
High School. Anderson was hypnotized twice in order to
enhance his recollection. After conducting a hearing and
taking testimony, the trial court denied Bundy's pretrial
motion to suppress Anderson's testimony. The denial was
without prejudice to Bundy's right to object at trial to
specific portions of that testimony. R145:13,387; app. 22.
At trial, Anderson made an in-court identification of Bundy
as closely resembling the man he saw and, from a photograph
22pundy also suggests that the use of this testimony
deprived him of his right to a jury trial. This claim is
without merit.
23
introduced into evidence, identified Kimberly Leach as the
girl. ©
on direct appeal, the Florida Supreme Court held "that
hypnotically refreshed testimony is per se inadmissible in a
criminal trial in this state, but hypnosis does not render a
witness incompetent to testify to those facts demonstrably
v recalled prior to hypnosis." Bundy, 471 So. 2d at 18.
Relying on harmless-constitutional-error cases of the United
States Supreme Court, the Florida Supreme Court went on to
conclude that the admission of Anderson's hypnotically
refreshed testimony was harmless error.23 Id. at 19. The
district court held this claim without merit. See slip op.
at 13-14.
We first address Bundy's claim that admission of
Anderson's testimony violated the Confrontation Clause of the
Sixth Amendment. In Rock v. Arkansas, 107 S. Ct. 2704
(1987), the Supreme Court held that a state's per se rule
excluding hypnotically refreshed testimony impermissibly
infringed on a criminal defendant's right to testify.
Although the Supreme Court expressly did not address the
issue presented here, see id. at 2712 n.15, its reasoning
23pespite the reliance on harmless-constitutional-error
cases, it is difficult to ascertain whether the Court relied
on federal constitutional law or state evidence law in
holding that hypnotically refreshed testimony is per se
inadmissible in a criminal case. As discussed in the text
infra, we conclude that such testimony is not per se
< thadmissible as a matter of federal constitutional law.
24
informs our analysis. The Court stated that "it has not been
shown that hypnotically enhanced testimony is always so
untrustworthy and so immune to the traditional means of
VY evaluating credibility" such that a per se ban is warranted.
Id. at 2714. The Court recognized that cross-examination
remained as an effective tool for revealing inconsistencies,
id., even though hypnosis may lead to the introduction of
inaccurate memories, 24 "making effective cross-examination
more difficult." Id. at 2713.
Rock thus teaches that, although hypnosis may make
effective cross-examination more difficult, it does not
always make it impossible, thereby preserving the opportunity
for effective cross-examination safeguarded by the Sixth
‘Amendment. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985)
——
("[T]he Confrontation Clause guarantees the opportunity for
———t
effective cross-examination . . . ." (emphasis in original));
accord Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986).
Consequently, we decline to hold that the Confrontation
Clause requires a per se ban on the admission of hypnotically
refreshed testimony.
24qhe Court cited three general characteristics of
hypnosis as bases for inaccurate memories: "the subject
becomes 'suggestible' and may try to please the hypnotist
with answers the subject thinks will be met with approval;
the subject is likely to 'confabulate,' that is, to fill in
details from the imagination in order to make an answer more
coherent and complete; and the subject experiences 'memory
hardening,' which gives him great confidence in both true and
false memories... ." 107 S. Ct. at 2713.
25
We thus examine whether, on the facts of the present
case, a Confrontation Clause violation occurred. "The sixth
amendment confrontation clause is satisfied where sufficient
information is elicited from the witness from which the jury
can adequately gauge the witness['] credibility." United
States v. Burke, 738 F.2d 1225, 1227 (llth Cir. 1984). Such
information was elicited here. In particular, Anderson
admitted that the hypnotic sessions he underwent, to some
degree, had an effect on th i iving.
Moreover, defense counsel explored why Anderson took so long
to come forward; Anderson's activities on the morning of
February 9th; the relationship between the prosecution's
search of Anderson's work schedule records and Anderson's
understanding that February 9th was the date of Kimberly
Leach's disappearance; Anderson's identifying Bundy on
“television but never participating in a photo line-up or a
live line-up; Anderson's travelling the route from the fire
station past Lake City Junior High School many times before;
and the discrepancies between Anderson's trial testimony and
his statements prior to hypnosis. The record does not
demonstrate that the trial court impermissibly limited the
cross~examination of Anderson. In addition, Bundy examined
the two hypnotists concerning their qualifications. Finally,
the tape recordings of the two sessions were played to the
jury, each juror received a transcript of those sessions, and
Bundy presented an expert witness who addressed what he
26
characterized as the flaws in those sessions. In light of
these facts, Bundy certainly had the opportunity for
effective cross-examination and no Confrontation Clause
violation occurred.
We next examine Bundy's claim that admission of
Anderson's testimony deprived Bundy of his Fourteenth
Amendment due process right to a fair trial. We note at the
outset that Rock rejects the suggestion that hypnotically
refreshed testimony is so unreliable that a per _se ban on
such testimony is warranted. Accordingly, we must determine
whether, on the facts in the present case, the hypnotically
refreshed testimony was so unreliable as to violate due
process. We conclude that the use of Anderson's testimony
accorded with the dictates of due process.
, In the present case, as set forth above, Anderson first
went to the police on July 28, 1978, because the profile of a
person he had seen on a television newscast bore a striking
resemblance to a man he had earlier observed with a girl near
the Lake City Junior High School. Before going to the
police, Anderson had noticed a resemblance between his niece
and Kimberly Leach and thought, before seeing Bundy's picture
on television, that Kimberly Leach was the girl he had seen:
"I probably knew it for some time. Exactly when I realized
that it was the Leach girl, I have no earthly idea. I just
27
would not admit it to myself." R21:4151.25 prior to coming
to the Pélice, Anderson had thought what he saw was what he
testified to at trial. Indeed, during the search for
Kimberly Leach, Anderson expressed his thoughts to a fishing
companion: “And I said, I don't recall specifically what I
said, but I stated that I may have seen the guy that picked
the Leach girl up or I may have seen someone that could have
picked up the girl." Id. at 4152.
Anderson gave a statement at the police station. He
described the man he had seen as of medium build, 5-foot-7 to
5-foot-10, and having medium or darker brown wavy hair. The
man wore a light shirt or jacket. Anderson described the
girl as 12 or 13 years old with shoulder-length brown hair
parted in the middle. She wore dungarees or slacks and a
dark pullover, and carried a sweater, jacket, or large
pocketbook. He said the man led the girl, by her elbow,
around the front of the van and helped her in. The girl had
an unhappy look as if she had been in trouble at school. The
van was white and its rear windows were covered so that
25anderson explained that he delayed going to the police
"Tb]ecause I wasn't sure of what day I saw the girl.
wasn't sure at all. I didn't want to become involved in it.
I saw one picture of Mr. Bundy. I looked at the picture. It
did not closely resemble the man that I saw with the girl."
R21:4146. He added that "the only reason that I can give for
not coming forward sooner is, as I stated before, not wanting
to be involved, having a lot of other things on my mind at
the time, not knowing the exact date that I saw the girl,
halfway afraid of creating turmoil, needlessly[] seeing [sic]
law enforcement on a wild goose chase." Id. at 4148; see id.
at 4074.
28
Anderson could not see the man after he entered the van. He
described his observation as taking place in April.
After Anderson gave his statement, the prosecutor asked
Anderson if he would undergo hypnosis. Anderson agreed.
Thirty to forty-five minutes later, Imogene Keene, a
hypnotist, arrived. Prior to hypnosis, Anderson repeated his
statement. Keene then began the procedure to hypnotize
Anderson. The session was tape recorded. (The tape
recording was played to the jury and each juror received a
transcript of the session.) The prosecutor and police
investigator were also present. Anderson testified at trial
that he did not believe he was hypnotized. He recalled that
his neck bothered him and affected his concentration. He
remembered that people kept walking in and out of the area.
The descriptions offered by Anderson suggest that he was not
hypnotized. For the most part, Anderson recited the facts he
had given in his statement to the police. Although he
initially stated that he could not see the girl's face, in
response to a question, he stated that the girl was crying.
In addition, Anderson described the color of the van's
license plate, although the true color. was different.
At the conclusion of this first session, the prosecutor
asked if Anderson would undergo hypnosis again. Anderson
agreed and a second session took place three days later on
July 31. After the first session, the prosecutor or police
investigator suggested that Anderson go home and think about
29
the date of his observation.
Prior to the second session,
Anderson recalled the date of his observation as February
[A.] .. . I talked it over with my wife. I was
very concerned about it, very upset about it. I
didn't even know what day the girl was missing. I
believe my wife said it was around the time of our
little girl's birthday and then it began to dawn on
me as I went over it in my mind that I saw the
little girl and the man coming home from the fire
department the day after my little girl's birthday.
Q. What was you little daughter's birthday?
A. February the 8th.
Q. Had you planned any events in connection with
her birthday or what caused you to focus attention
on her birthday?
A. My wife had planned a party where [sic] some of
her friends and a movie, and I was looking forward
to, you know, going to the party and taking the
kids to the movies, you know, helping chaperone the
kids. And I didn't make it because I was working
overtime at the fire station. I got called in
quite often that day to work overtime. It seemed
like every. time I went home, I walked in the door,
the phone would be ringing and them asking me to
come back down to the fire station and, late that
afternoon, I got a call to go back down to the fire
station, they had a trip going to Gainesville, and
we needed the money, so I went and I called my wife
and told her that I'm sorry, go ahead and take the
kids to the party and the movie, I wasn't going to
be able to make it.
Q. Okay. What, if anything, happened on February
the 9th, after you got home, that allowed you to
tie that incident in with your little daughter's
birthday party?
A. I remember going in. I remember feeling guilty
about not being with the kids at the party. Well,
the first thing I did was eat a piece of my
daughter's birthday cake. I asked my wife to iron
me a shirt, a uniform shirt. I think probably
eating the cake and just I remember feeling guilty
about not making the party makes me remember it as
clear as anything else.
Q. Okay. And are you certain in your own mind, as
you have testified this morning, on February the
9th is the date that you made those observations
that you have described to the Court?
A. Yes, sir.
30
Q. Now, do I understand your testimony to be that,
in-between July the 28th and July the 3lst, you
made-this determination?
A. =Yes, sir.
R21:4087-89.
On July 31, the second session took place. Anderson,
Keene, the prosecutor, the police investigator, Johnny "Jack"
Burnette, and a stenographer were present. The session was
tape recorded. (The tape recording was played to the jury
and each juror received a transcript of the session.) In
this second session, Burnette, another hypnotist, placed
Anderson under hypnosis. Anderson believed he was hypnotized
during this session. During this session, Anderson stated,
inter alia, that his observation was on February 9; that the
man was fairly young (29, 30, or 31), was good looking, and
was wearing a white jacket or white pullover with a shirt
_ underneath; that the girl was wearing a blue football jersey
with "3" and either "6" or "8" on it; and that the van had
clear rear windows through which Anderson could see the man
scold the girl. After the session, Anderson "felt better,"
but "[t]here are still some things bothering me. I couldn't
definitely identify the man. I couldn't remember exactly
what the man was wearing. There were still some questions
that I had that I would like to have been able to answer."
R21:4120.
At trial, Anderson testified in relevant part as
follows:
31
Q. What, if anything, did you observe in the
vicinity of Lake City Junior High School on that
morning [February 9th] as you travelled to your
home?
A. ~The first thing I noticed was there was a white
van parked in the westbound lane of Duval Street,
that, as I approached it, several cars had, were
going around it. There were still two cars behind
the van and then my truck. And I was sitting there
waiting for the truck to move or waiting for
traffic to clear so I could go around it. And on
my left, I noticed a young girl, approximately
twelve or thirteen years old, dark hair, shoulder
length, parted in the middle. Probably the only
reason I noticed this girl was she looked very much
like one of my nieces.
Q. Was there anyone with the young girl?
A. Yes, sir. With her was a man, approximately
early thirties, had brown hair, you know, light to
dark brown hair, was full cut of hair. It was one
of the things that I really paid any attention: to
as far as the man was concerned. It was kind of
wavy, but it was full cut, you know, really a nice
head of hair.
I got the impression that the young girl was
either crying or had been crying. The man had a
scowl on his face. And I felt like probably the
girl had gotten in trouble at the school or
misbehaved in some way and had called her father to
come pick her up and take her home. And as I was
sitting there, watching them, I remember thinking
to myself, you know, the daddy is going to take the
little girl home and probably, you know, give her a
spanking or something like that.
Q. Would you tell us how the girl was dressed, as
you recall?
A. She was wearing a pullover football jersey and
probably dungarees.
Q. What was the color of the football jersey?
A. It was dark blue.
Q. Did the jersey have any distinguishing marks or
characteristics?
A. Yes, sir. It had some letters on it, "63" or
"68", red-orange, something like that.
Q. Did the girl appear to be carrying anything?
A. Yes, sir. In her left arm, kind of clutched to
her chest like this (demonstrating), was a medium-
sized object like, so it could have have been a
pocketbook or a rolled-up jacket or maybe both. I
don't know. The man had her by her left arm, right
about the elbow, and he was leading her towards the
white van. The little girl was not actually
32
resisting. It was pretty evidence [sic] that,
that, you know, she wasn't really anxious to go.
They-was, from the sidewalk, probably six to ten
feet from the sidewalk when I first saw them. They
continued to walk to the sidewalk. He stopped--
Q. Did the man have the girl by the left arm
during the entire time that you observed them?
A. Yes, sir. They stopped and a car came by,
going east, and they crossed in front of the white
van. The man opened the door.
Q. Which door did he open?
A. The door on the passenger side. And helped the
girl get in the van, slammed the door, and kind of
jogged in front of the van, got in the passenger
side, and they drove off.
R21:4063-65.
Q. Were you able to tell how the man was dressed?
A. Yes, sir. He had a pullover sweater, with a
shirt underneath the sweater. I don't recall the
exact color of either one of them. The sweater was
a neutral color, tan, light grey, something like
that. I don't recall the color of his trousers.
Q. You have described the van as being a white
van. Can you give any further description of it.
particularly with respect to any windows?
A. All I seen was a, was the very back of it and
it had two windows, the rear doors.
Q. Okay. I'm going to have you a photograph,
which has been marked for identification as State's
Exhibit J. I ask you to examine this photograph
and tell us whether or not that photograph is
similar to the white van that you observed on the
morning of February the 9th in front of the Lake
city Junior High School.
A. Yes, sir, it's very similar.
Q. Now, after the person placed the girl in the
white van and got in on the driver's side, what
happened then?
A. The van drove off, you. know, a normal rate of
speed. As I said before, there were two vehicles
between me and the van. The closest one to the van
was a small, dark blue foreign car of some kind. I
have no idea what kind.
Q. Did you remain behind the white van?
A. Yes, sir.
Q. And approximately at what distance behind the
white van?
A. Two car lengths. We were all fairly close
together. Nobody was keeping the proper distance
between the vehicles, if I remember correctly.
33
Somewhere between the junior high school and 7th
Street, which is roughly seven blocks, six blocks,
the small car turned off to the right. I don't
recall what street it turned off. And then the van
stopped at the red light at 7th Street.
Q. Were you able to observe the driver as he was
stopped at the red light there at 7th Street?
{A]. Okay. When the van stopped at 7th Street, I
could see the silhouette of the driver turn towards
the passenger side.
Q. Could you see anyone in the passenger side at
that point in time?
A. No, sir.
Q. Had the girl been sitting up straight in the
seat, do you know of any reason why you could not
have seen her at that time?
A. No, sir.
Q. What, if anything, did you see the driver
doing?
A. He was gesturing, turned to his right, and
moving his head like he was talking, and gesturing
with his left hand.
Q. And when you say he was turning to his right,
that would have been toward the passenger side of
the --
A. Toward the passenger side.
Q. How long after that did you lose sight of the
van?
A. Approximately two, two and a half blocks, U.S.
90 veers left and West Duval Street continues
straight west.
Q. Mr. Anderson, I'm going to hand you a
photograph, which is in evidence as State's Exhibit
1, and I ask you to examine that photograph and
tell the members of the jury whether or not you
recognize that person depicted.
A. Yes, sir, I do.
Q. Who is that person?
A. It's the young girl I saw at the school.
Q. On the morning of February the 9th?
A. Yes, sir.
Q. I'm going to ask you, Mr. Anderson, if you will
look around the courtroom and tell the members of
the jury whether or not you can positively identify
the man that you observed leading that young girl
from the school ground on February the 9th.
A. No, sir, I'm not absolutely certain.
Q. I ask you then to once again to [sic] look
around the courtroom and tell the members of the
jury whether or not there is anyone in the
34
courtroom who closely resembles the person that you
observed leading the young girl to the white van on
the morning of February the 9th.
A. Yes, sir, there is.
Q. Would you point that person out, please?
A. The defendant.
Q.° Are you aware of any dissimilarities in the
appearance between the person that you pointed out
in the courtroom and the person that you saw
leading the girl to the van on that morning?
A. No, sir, they were very much alike.
R21:4068-73.
We hold that Anderson's hypnotically enhanced testimony
was not so wholly unreliable that its admission violated
Bundy's due process right to a fair trial. Indeed,
Anderson's knowledge independent of the hypnosis sessions
defeats the inference that the hypnosis was unduly
suggestive. The above recitation of the facts makes clear
that, prior to going to the police, Anderson strongly
suspected that he had seen Leach's abduction -- a suspicion
he shared with a fishing companion. Upon seeing Bundy on
television, Anderson's suspicions grew to a certainty that
outweighed his fears of getting involved and sending police
on a "wild goose chase." At this point, Anderson went to the
police and gave a statement reflecting his thought that a man
resembling Bundy had abducted Kimberly Leach. Independent of
hypnosis, Anderson recalled that the date of his observation
was February 9th.
We also cannot say that the hypnotically enhanced
details of Anderson's trial testimony were the product of
impermissible suggestions or techniques by the hypnotist.
35
Indeed, the jury heard tapes of the two sessions, received
transcripts of those sessions, and heard testimony of an
expert witness who addressed what he characterized as the
flaws in those sessions. Cross-examination was the avenue
with which to attack Anderson's testimony. We have held
above that an opportunity for effective cross-examination was
available here. That holding buttresses our conclusion that
Anderson's testimony was not so unreliable as to violate
Bundy's due process right to a fair trial.
VIII. Exclusion of Jurors
Bundy argues that the trial court erred in denying his
motion to limit death qualification of the jury, permitting
such qualification, and excusing for cause jurors who
expressed opposition to the death penalty, notwithstanding
their ability to vote for guilt or innocence. Bundy argues
that, because of the capital sentencing procedures of Florida
law, the rule enunciated in Witherspoon v. Illinois, 391 U.S.
510 (1968), and refined by its progeny does not apply. Bundy
asserts that under Florida law the trial judge solely
determines whether a defendant receives a death sentence and
that the jury renders an advisory opinion only. Bundy
concludes that, because the jury has an advisory role only,
Florida lacks the usual state interest in excluding jurors
who would automatically vote against the death penalty. As a
result, Bundy argues that his interest in a jury composed of
a cross-section of the community controls and the trial court
36
erred in excusing those jurors who were unalterably committed
to vote against the death penalty.
on direct appeal, the Florida Supreme court held that it
was precluded from ruling on this claim because objections as
to this claim were not raised in the trial court. Bundy, 471
So. 2a at 19. The district court held that the claim was
procedurally parred and, alternatively, without merit. See
slip op. at 14.
We conclude that Bundy's claim is without merit.2°
supreme court precedent clearly establishes that a state can
exclude for cause a prospective juror whose opposition to the
death penalty "would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath." See, S-Fe, Wainwright v- witt,
469 U.S. 412, 420 (1985) (quoting Adams v. Texas, 448 U.S.
_
26pundy argues that the Florida Supreme Court improperly
recognized a procedural par because he raised this issue
before the trial court in his motion to limit death
qualification of the jury. See R159:14,6587 apP- 54. This
claim raised on direct appeal. Rather, the motion appears
directed at the distinction between the trial and sentencing
phases. cf. Lockhart v- Mccree 476 U.S. 162, 180
(1986) (state has “entirely proper interest" in obtaining a
single jury that could impartially decide all of the issues
in a capital case). in addition, it appears Bundy argued the
same rationale to the trial judge. See R126:11,375-80-
Bundy also suggests in his brief that he voiced timely
objections at voir dire. We have examined those passages and
it again appears that the objections were directed at the
consequently, it does not appear that Bundy raised the
present claim before the trial court. We do not determine,
however, whether this claim is subject to the procedural
default doctrine. Rather, we conclude that the claim is
without merit.
37
38, 45 (1980)). Bundy attempts to avoid the force of this
Supreme Court precedent by characterizing the role of the
sentencing jury as advisory under Florida law. We disagree.
See Mann v. Dugger, 844 F.2d 1446, 1449-54 (11th Cir.
1988) (en banc). As a result, Witherspoon and its progeny
apply to jury selection in Florida cases. Because Bundy
admitted in his brief on direct appeal, see page 56 of that
brief, that the jurors were properly excluded under
Witherspoon,?7 this claim is without merit as are any claims
that "death qualification" violates the fair cross-section or
impartial jury requirements of the Sixth Amendment. See
Lockhart v. McCree, 476 U.S. 162 (1986).
- IX. Frye Test
Bundy argues that the trial court erred in not
conducting a sua sponte inquiry into the scientific
reliability of fiber and shoe track evidence presented by the
state. See Frye v. United States, 293 F. 1013 (D.c. Cir.
1923) (expert testimony admissible only if based on well-
recognized and generally accepted scientific principles). on
direct appeal, the Florida Supreme Court noted that Bundy
failed to object at trial and thus the claim was procedurally
27our review of the record indicates that eight
prospective jurors were excused because their views on the
death penalty precluded them from returning a guilty verdict
and/or from voting for the death penalty. See voir dire
associated with R4:650, R7:1316, R11:2052, R11:2077,
R12:2205, R12:2363, R13: 2455, and R16: 3002. Our review also
indicates that their exclusion accorded with the standards
set forth in Witherspoon and its progeny.
38
/
barred. See Bundy, 471 So. 2d at 20. The district court
held that the claim failed pursuant to the procedural default
doctrine and, alternatively, was without merit. See slip op.
at 14-15.
This claim is not procedurally barred. If the trial
court truly had an independent duty to conduct a Frye test,
then Bundy was not obligated to request a Frye test or to
object at trial to the court's failure to conduct one.
Consequently, the Florida Supreme Court improperly refused to
consider the merits of this claim, and its mistaken reliance
on a procedural bar does not provide an adequate basis for
denying federal habeas review.
Although this claim is not procedurally barred, it is
without merit. In substance, Bundy seeks to avoid Florida's
contemporaneous objection rule and associated procedural
default, see Wainwright v. Sykes, 433 U.S. 72 (1977), by
requiring that the trial court object sua sponte to the
admission of evidence. In Wainwright v. Sykes, 433 U.S. at
86, the Supreme Court rejected the suggestion that the trial
court had an independent duty to conduct a hearing as to the
voluntariness of a defendant's confession. Similarly, we
agree that, even assuming that evidence must meet the Frye
test as a matter of constitutional law,28 the trial court has
28tndeed, this Court has intimated that federal evidence
law does not require that the Frye test be met prior to the
admission of evidence. United States v. Hope, 714 F.2d 1084,
1087 n.3 (11th Cir. 1983). This case, not concerning a
federal conviction, presents us with no opportunity to
39
no independent duty to challenge the evidence and the
admission of the evidence must be challenged by the defendant
at trial or not at all.
X. Jury View
Bundy claims he was denied due process when his motion
for a jury view of the scene around the school was denied by
the trial court. On direct appeal, the Florida Supreme Court
held that the trial court did not abuse its discretion. See
Bundy, 471 So. 2d at 20. The district court held that this
claim was addressed to an issue of state law and thus was not
a basis for federal habeas relief. Alternatively, the
@istrict court held that the trial court's ruling did not
deny Bundy fundamental fairness. See slip op. at 15.
We disagree with the district court's characterization
of this claim as addressed to an issue of state law. An
evidentiary ruling is a cognizable ground for federal habeas
corpus relief if it deprived the state court defendant of
fundamental fairness. See Jameson v. Wainwright, 719 F.2d
1125, 1126 (llth Cir. 1983), cert. denied, 466 U.S. 975
(1984). We agree with the district court, however, that the
ruling did not deprive Bundy of fundamental fairness. To
constitute a denial of fundamental fairness, the evidence at
issue must be crucial and highly significant. 719 F.2d at
address Hope's intimation.
40
¥
1127; see Williams v. Kemp, F.2d , , Slip p. 3193,
3200 (llth Cir. May 17, 1988). In the present case, the
scene had been significantly altered because of the
construction of a four-lane highway. In addition,
photographs of the scene were admitted into evidence, and
cross-examination as to the scene was allowed. Consequently,
denying the jury an actual view of the scene cannot be said
to have deprived Bundy of a fundamentally fair trial.
XI. Evidence of Flight
Bundy claims he was denied due process when his motion
in limine to exclude evidence of flight was denied by the
trial court and when the trial court instructed the jury
regarding the evidence of flight. On direct appeal, the
Florida supreme Court relied on federal cases binding on this
panel and held that the evidence was properly admitted and
that the related instruction was proper. See Bundy, 471 So.
2a at 20-21. The district court noted that this claim raised
state-law issues and thus was not a basis for federal habeas
corpus relief.29 Alternatively, the district court held that
the evidence was properly admitted and that the jury
instruction did not render the trial fundamentally unfair.
See slip op. at 15-16.
29as set forth above, an evidentiary ruling is a
cognizable ground for federal habeas corpus relief if it
deprived the state court defendant of fundamental fairness,
that is, the improperly admitted evidence was crucial and
highly significant.
41
The state presented evidence of two instances of flight
by Bundy. The first instance occurred on February 11, 1978
(two days after the abduction of Kimberly Leach) at 1:47 a.m.
in Tallahassee, which is approximately 100 miles west of
Lake City. In this instance, after being stopped by a police
officer, Bundy successfully fled. The second instance
occurred on February 15, 1978 (six days after the abduction
of Kimberly Leach) at approximately 1:30 a.m. in Pensacola,
which is approximately 200 miles west of Tallahassee and 300
miles west of Lake City. After being stopped by a police
officer, Bundy began to flee down a street, but was caught
and arrested within a few minutes. The trial judge permitted
evidence of both instances of flight and, prior to the jury's
deliberations, instructed the jury as follows:
You are instructed that the flight of the
defendant is a circumstance which may be taken into
consideration with all other facts and
circumstances in the evidence and, if you, the
jury, believe and find from the evidence beyond
every reasonable doubt that the defendant fled for
the purpose of avoiding arrest and trial under the
charges herein, you may take this fact into
consideration in determining guilt or innocence.
R35:6939-40. We find no error in the admission of the
evidence of flight and no error in the trial court's
instructions as to that evidence.
XII. Doubling of Aggravating Circumstances
Bundy argues that constitutional error occurred when the
trial court relied on Bundy's conviction in Utah for
aggravated kidnapping to find two aggravating circumstances:
42
|
(1) Bundy was under a sentence of imprisonment when he
committed the present crime and (2) Bundy previously had been
convicted of a violent crime. On direct appeal, the Florida
Supreme Court applied the test enunciated in Blockburger v.
United States, 284 U.S. 299 (1932), and rejected Bundy's
claim. See Bundy, 471 So. 2d at 22.
The district court recognized the Florida Supreme
Court's reliance on Blockburger and concluded it was
"convinced that the [Florida] Supreme Court's decision on
this issue [was] correct."39 slip op. at 16. We agree that
Blockburger renders Bundy's claim without merit. In
Blockburger, the Supreme Court stated that "the test to be
applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which
the other does not." 284 U.S. at 304. In the present case,
each aggravating circumstance clearly has an element
different from the other.
XIII. Penalty for Requesting Jury Trial
Based on the state's original agreement to a life
sentence in this case,31 africano filed a motion that would
30Because 28 U.S.C. § 2254(d) does not accord a
presumption of correctness to a state court's determination
of law, we read the district court as independently agreeing
with the Florida Supreme Court's analysis.
3lalthough the state did agree to life sentences in this
case and the Leon County case, Bundy appeared in open court
at the joint plea proceeding, challenged the effectiveness of
his counsel, and made a motion for replacement of counsel.
At this point, the state withdrew the plea offer for fear
that Bundy later would challenge his guilty pleas by claiming
43
have prevented the court from convening the penalty phase and
from returning a death sentence. The motion stated that
Bundy was unconstitutionally forced to risk death in order to
exercise his right to a jury trial. The trial judge denied
the motion. Although Bundy challenged this denial in his
brief on direct appeal, the Florida Supreme Court did not
address it.
In his federal habeas petition, Bundy claimed that the
trial court erred in denying his motion to enter a life
sentence on the verdict and to prohibit the penalty phase of
trial. The district court observed that Bundy "essentially
concedes that this ground is procedurally barred," and,
alternatively, held the claim without merit. See slip op. at
16-17. Although this claim is not procedurally barred,?2 we
agree that the claim is without merit. There is no hint in
the record that Bundy received a heavier sentence after trial
as a result of judicial vindictiveness or punitive action.
See Hitchcock v. Wainwright, 770 F.2d 1514, 1518-20 (llth
Cir. 1985) (en banc), rev'd on other grounds, 107 Ss. Ct. 1821
(1987).
XIV. Clemency Hearing
Bundy argues that he was denied his right to apply for
executive clemency in violation of the Eighth and Fourteenth
he had received ineffective assistance of counsel.
32we do not fault the district court for its statement.
Bundy erroneously stated in his habeas petition that the
claim had not been raised on direct appeal.
44
Amendments. The Florida Supreme Court, see Bundy, 497 So. 2d
at 1211, and the district court, see slip op. at 17, held
this claim without merit. We affirm the district court, but
do not share its reasoning.
We begin our analysis of the procedural due process
claim by determining whether Bundy has a protected liberty
interest in being accorded a hearing for executive clemency.
"Liberty interests protected by the Fourteenth Amendment may
arise from two sources -- the Due Process Clause itself and
the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466
(1983). This Circuit's predecessor has held that such a
liberty interest does not arise from the Due Process Clause
itself. See Spinkellink v. Wainwright, 578 F.2d 582, 617-619
(Sth Cir. 1978), cert. denied, 440 U.S. 976 (1979).
Accordingly, we turn to the Florida Rules of Executive
Clemency. See Sullivan v. Askew, 348 So. 2d 312, 319-25
(Fla.) (setting forth clemency procedures), cert. denied, 434
U.S. 878 (1977).
In Hewitt, the Supreme Court observed that the mere
enactment of regulations does not automatically give rise to
a liberty interest, especially if the regulations are nothing
more than guidelines for the exercise of executive
discretion. 459 U.S. at 471. The Court recognized, however,
—____
that a liberty interest is present when the regulations are
of an "unmistakably mandatory character" and require
"specific substantive predicates." Id. at 471-72.
45
Florida's clemency procedures do not satisfy either
requirement. Cf. Sheley v. Dugger, 833 F.2d 1420, 1424
(llth Cir. 1987) (Florida "rules and regulations concerning
administrative segregation and close management create for
inmates a liberty interest in remaining in the general prison
population"); McQueen v. Tabah, 839 F.2d 1525, 1527-29 (lith
Cir. 1988) (following Sheley). First, the clemency
procedures do not unmistakably indicate that a prisoner
sentenced to death is entitled to a clemency hearing. Rule
7, a special rule for executive clemency in capital cases,
provides that "[t]he Governor or any member of the Cabinet,
after reviewing a certified copy of the conviction and
sentence, may request the Florida Parole and Probation
Commission to make an appropriate investigation, inquiring
into any factors relevant to commutation." Although Rule 7
sets forth required procedures, these procedures are required
only after the discretionary request to the Commission. See
also Sullivan, 348 So. 2d at 318 (England, J., specially
concurring) (procedures are required "once triggered").
Second, no specific substantive predicates govern this
discretion; the decision whether to grant clemency is wholly
a matter of executive discretion. Sullivan, 348 So. 2d at
314-16; Fla. Const. Art. IV, § 8. The clemency rules do not
require the Governor to make any factual findings in order to
deny clemency to a capital defendant.
46
Finally, Bundy's claim that the lack of a clemency
hearing violates his Eighth Amendment right is without merit.
This is not the situation where a state prohibits executive
clemency. See Gregg v. Georgia, 428 U.S. 153, 200 n.50
(1976) (opinion of Stewart, Powell, and Stevens, JJ.)
(prohibiting executive clemency "would be totally alien to
our notions of criminal justice"). In addition, the concern
derived from the Eighth Amendment regarding capital cases
focuses on the judicial processes of trial and appellate
review, not on the discretionary state process (i.e.,
executive clemency) succeeding them. See Spinkellink, 578
F.2d at 619 & n.45.
XV. Pretrial Publicity
Bundy argues that his jury was both presumptively and
actually prejudiced on account of adverse pretrial publicity
concerning his conviction in the Leon County case. By
statutory choice of permissive venue, venue initially was in
Suwannee County. (Lake City is located in Columbia County.)
After the start of voir dire in Suwannee County, the trial
court granted Bundy's motion for a change in venue and moved
the case to Orange County. The trial court refused to grant
Bundy another change of venue, or abatement in the trial,
even though Bundy contended that the jurors in Orange County
were as equally prejudiced as the jurors in Suwannee County.
The Florida Supreme Court, see Bundy, 471 So. 2d at 19-20,
and the district court, see slip op. at 17-19, held this
47
claim without merit. On appeal, Bundy argues that the
district court erred in denying him an evidentiary hearing on
this claim.
Jury prejudice can be presumed from pretrial publicity
if that publicity is sufficiently prejudicial and
inflammatory and if it saturated the community where the
trial was held. Murphy v. Florida, 421 U.S. 794, 798-99
(1975); Rideau v. Louisiana, 373 U.S. 723, 726-27 (1963);
Coleman v. Kemp, 778 F.2d 1487, 1490 (llth Cir. 1985), cert.
denied, 476 U.S. 1164 (1986). This principle is “rarely
applicable “and reserved for extreme situations where pretrial
publicity renders "virtually impossible a fair trial by an
impartial jury drawn from the community." Mayola v. Alabama,
623 F.2d 992, 997 (5th Cir. 1980), cert. denied, 451 U.S. 913
(1981).
We hold that the coverage of the Leon County trial,3>
although extensive, does not satisfy the heavy burden
associated with presumed prejudice. In support of his motion
for a change in venue or abatement of prosecution, Bundy
presented the testimony of local television personnel. See
R6:1159-98, R7:1202-18. The public television station had
broadcast half-hour summaries of the Leon County trial.
33wWe reject any notion that press coverage related to
the evidence in the present case or related to Bundy's
activities in other states satisfies the heavy burden
associated with presumed prejudice. Our review of the voir
dire buttresses this conclusion; few prospective jurors had
knowledge of the details of the present case or of Bundy's
out-of-state activities.
48
These summaries were factual accounts; the station was
prohibited by law from offering editorial comment. At the
time of jury selection in January 1980, the station had not
broadcast anything about Bundy since the conclusion of the
Leon County trial in late July 1979. Although the commercial
television stations provided extensive coverage of the Leon
County trial, the coverage was factual in nature and not.
designed to inflame or prejudice the public. In addition,
prior to the verdict, these stations did not broadcast
editorials about whether the defendant was guilty in that
case. Bundy also presented newspaper articles from the local
newspaper. See R12:2222-24. Again, these articles are
largely factual in nature. Consequently, unlike Coleman, the _
coverage of the Leon County case was not infested with
inflammatory and prejudicial remarks from the police and
prosecutors. See also Murphy, 421 U.S. at 802 (news articles
were largely factual in nature); United States v. Klacker,
811 F.2d 555, 556 (llth Cir. 1987) ("The news reports
detailing appellant's flight from justice were largely
factual reports, devoid of inflammatory material.").
Likewise, we are unpersuaded by a public opinion poll
proffered by Bundy in support of his motion. The poll,
conducted among residents of Orange County, showed that 98%
of those who responded indicated their familiarity with the
name Bundy. See R7:1237. Of that number 58% stated that
they knew Bundy had been involved in the Leon County case.
. 49
Of that number, 31% believed that Bundy's conviction in that
case strongly indicated that he was guilty in the present
case. See id. at 1240. Although publicity concerning a
defendant's involvement in other crimes is relevant in
presuming jury prejudice, especially if the defendant's
involvement in that crime is inadmissible in the
guilt/innocence phase, Murphy stands for the proposition that
prejudice is not presumed simply because the defendant's
criminal record is well publicized. Thus, even assuming that
the methodology of the public opinion poll is such that it
accurately reflected the attitude of Orange County residents,
the poll does not demonstrate that the community was so
predisposed to Bundy's guilt in the present case that
prejudice must be presumed.
Nor can we say that Bundy has demonstrated actual
prejudice in the entire venire. See Irvin v. Dowd, 366 U.S.
717, 727 (1961). We have carefully reviewed approximately 19
volumes of voir dire. We note that the trial court
propounded general questions to each set of prospective
jurors, the panels ranging from eleven to fifteen persons.
As one of the general questions, the trial court requested
that prospective jurors raise their hands to indicate if they
had heard of the defendant, but that they not reveal the
source or extent of their knowledge. Thereafter, those
prospective jurors who remained after general questioning
were individually questioned by the trial court, one
50
prosecutor, and one defense attorney. No other prospective
juror was present during this individual questioning. our
review of the record indicates that as part of this
——
individual questioning the trial court permitted a searching
inquiry into knowledge and thoughts about the defendant.
our review of the record indicates that 172 prospective
jurors were called and 56 were excused for reasons relating
to health, family, employment, or school. Of the 116
remaining prospective jurors, 42 were excused because they
could not (1) be impartial based upon their extensive
knowledge of the Leon County case, (2) set aside preconceived
notions of guilt, and/or (3) could not accord Bundy a
presumption of innocence.34 of the remaining 74 jurors, a
small minority also stated that they had a preconceived
notion of guilt. Consequently, we cannot say that Bundy
suffered actual prejudice from the entire venire.
Before we examine whether Bundy has demonstrated actual
prejudice regarding the trial jury as a whole, we examine
Bundy's challenge to an individual juror. The Supreme Court
34three prospective jurors could not accord a
presumption of innocence to a defendant in general. In
addition to the 12 jurors and three alternates, 36 were
excused on the basis of peremptory challenges, eight on the
basis of Witherspoon, five for hearing improper comments of
or engaging in improper discussion with other prospective
jurors, four because of their reaction to the victim's age or
the planned introduction of photographs into evidence, one
because of meeting the victim's father, one because of being
in Lake City at the time of the crime, and one because of
believing that imposition of the death penalty was automatic
upon conviction based on the facts alleged in the indictment.
bl
has recognized that the question of the partiality of an
individual juror is one of historical fact to which the
presumption of correctness of a state court's factual
findings under 28 U.S.C. § 2254(d) applies. Patton v. Yount,
467 U.S. 1025, 1036 (1984). "Thus the question is whether
there is fair support in the record for the state courts!
conclusion that the juror[] here would be impartial." Id. at
1038.
We conclude that there is fair support in the record for
the trial court's conclusion?> as to this individual juror.
This juror, the twelfth juror selected and eventually the
jury foreman, was pre-press manager of the local newspaper.
In response to the trial court's questions, he stated that he
understood that the defendant was entitled to be tried on the
evidence presented in the present case alone, that he would
follow the trial court's instructions as to the law, that he
would accord the defendant a presumption of innocence and
hold the state to its burden of proof, that he would not
require the defendant to take the stand, and that he would
set aside any opinion or impression he had about the
defendant. See R18:3455-58. Assuming a guilty verdict, he
stated that he was not committed to voting automatically for
35The trial court rejected the defendant's challenge for
cause: "The Court finds that this prospective juror is
competent to serve. It has not been shown that he has
partiality and as shown by his total testimony, he is able to
put aside anything he might have heard or any feelings he
might have, and he is competent to serve." R18:3507.
52
the death penalty or life imprisonment. Id. at 3465. He
again stated that the defendant need not take the stand, the
defense need not prove the defendant not guilty, and that the
burden rested on the state. Id. at 3466-67.
On questioning by Africano, see generally id. at 3473-
89, the juror stated that he knew Bundy was convicted of
murder in Miami of "the Tallahassee girls" and that "it
sounded like a pretty gory case" and "some brutal murders."
He knew Bundy was sentenced to death. Unlike most
prospective jurors, he recalled the bite-mark evidence from
that case, although he stated, "I believe that was the Bundy
case." He guessed that death was by bludgeoning and that
there was more than one murder. Unlike most prospective
jurors, he recalled that Bundy had escaped from prison in
Colorado. He knew that Bundy "is highly intelligent and he
had some law background or something somewhere along the
line." He did not recall if co-workers had reached a
consensus of Bundy's guilt prior to the Leon County verdict,
but said that family and friends thought Bundy was guilty.
Twice, he stated that he had no thoughts as to Bundy's guilt
prior to the verdict.36 after conviction in the Leon County
369. Did you ever voice or feel that he was guilty
before the verdict was handed down?
A. No. I'm one of the rare few that, without
seeing or being there when the evidence was given,
I really don't think you can judge.
Q. Okay. And didn't that "he must have done
something," doesn't that give you any tendency to
feel that he must have been guilty of something?
53
case, his feelings were "{[n]ot too good towards Mr. Bundy."
He stated that he still felt that way, but that he would
listen to the evidence in the present case.37 Upon further
A. No. It aroused a lot of curiosity, but I can't
judge anyone guilty just because there is a lot of
publicity.
R18:3479.
379. The feelings that you had about Mr. Bundy after
the trial in Miami, which you have described as not
being very good, do you still carry those feelings
with you?
A. Sure.
Q. You do?
A. (Nods head affirmatively)
Q. Well, how do you feel about him as he sits
there now?
A. He is a convicted murderer.
Q. Okay. Does that make you feel anything about
the charges in this case?
A. Not in this case.
Q. Does the fact that the State of Florida has
brought an indictment against him and prosecuting
him make you feel that he is in some way guilty of
that charge?
A. Not of this charge.
Q. The fact that you know he is a convicted
murderer, as you put it, doesn't make you feel any
less like giving him all the presumptions of
innocence that the Court has instructed you about?
A. No. The State has to prove that he is guilty
in this particular case.
Q. Okay. But how are you going to take out of
your mind the bad feelings you have about Mr.
Bundy, the fact that you described him as a
convicted murderer, and then just look at that
evidence totally and completely objectively?
A. He is innocent in this case until the State of
Florida proves him guilty. As a juror, I have to
listen to the evidence in this case. . . . Whether
I like him or not, what I think about him in the
past has to have nothing to do with this case. I
will attempt to do that.
Q. I understand you will attempt to do that, but,
because I'm not going to get a chance to discuss
with you later, and, once you're passed on as a
54
questioning, the juror adhered to his earlier stated
positions. 38 Based upon our examination of the record, we
hold that there is fair support for the trial court's
conclusion.
We proceed to examine whether Bundy has demonstrated
actual prejudice regarding the trial jury as a whole. In
this context, the Supreme Court has questioned whether the
juror, it's too late, if you don't think that you
really can do it. This is why we have this
opportunity to deal with this at this point in
time. And as Mr. Bundy's lawyer, I need to know
how you feel about him. Are you so opinionated
about him personally that it might affect your
perception about the evidence in this case?
A. Not as far as this case is concerned.
R18:3483-85.
389, Is what you know and, as a person, feel about Mr.
Bundy going to make the State's burden any less in
proving guilt beyond and to the exclusion of every
reasonable doubt?
A. No.
Q. If, at the conclusion of the State's case or
all of the evidence in this case, you feel that the
State hasn't quite met its burden, but you do have
a reasonable doubt, that this defense has not come
forward with any evidence or Ted Bundy did not take
the stand and testify and tell you he didn't do it,
is what you know about him and feel about him
personally, is that going to make you resolve that
reasonable doubt against him?
A. No.
Q. If you resolve in your own mind, at the
conclusion of all of the evidence, that the State
has not met its burden and you feel and find in
your own mind that Ted Bundy is not guilty, would
you hold firm in that resolve?
A. Sure.
Q. Even if you were a majority of one of twelve people?
A. (Nods head affirmatively).
R18:3488-89.
55 :
"fairly supported by the record" standard of 28 U.S.C. §
2254(d) supplanted the "manifest error" standard enunciated
in Irvin. Patton v. Yount, 467 U.S. at 1031 n.7. The Court,
however, did not resolve the question because it concluded
that the defendant had not satisfied the "manifest error"
standard. Id. at 1032 n.7. Because we conclude that Bundy
has not satisfied Irvin's standard, we also do not determine
whether Section 2254(d) has superseded that standard.
We have already set forth the relevant voir dire of the
twelfth juror. We now summarize the individual voir dire of
the other eleven jurors:
Juror No. 1 (R6:1017-1049): She stated that she could
follow the trial court's instructions. She knew that Bundy
was on trial for some murders in the northern part of
Florida. She believed he was convicted, but did not know the
sentence. No challenge for cause was made.
Juror No. 2 (R6:1080-1116): He stated that he could
follow the trial court's instructions. He had heard Bundy's
name before, but could not recollect why. No challenge for
cause was made.
Juror No. 3 (R8:1482-1530): She stated that she was not
sure that she had a fixed opinion regarding guilt/innocence,
but that she would follow the trial court's instructions.
She stated that she was not sure if she had an open mind
regarding hypnosis and that she had mixed feelings about the
death penalty. Although she "may even have the'wrong thing,"
56
it seemed that Bundy was involved in the crime involving
three girls in upstate Florida. She had formed a negative
opinion about Bundy, but could fairly and impartially judge
the evidence, although there might be a glimmer of a doubt
that she could do that. She thought she would require some
evidence tending to show innocence, even though there is a
a
presumption of innocence. She thought she might be
a I ht LC A,
influenced by the fact that Bundy did not take the stand.
However, she would just have to keep reminding herself of the
instructions of the court. The trial court found a firm
indication of impartiality and denied the motion to excuse
¢ for cause.
en
Juror No. 4 (R9:1686-1729): He stated that he could
follow the trial court's instructions. He knew that Bundy
was found guilty of murder in the previous trial and
sentenced to death. He knew nothing of Bundy's background.
He stated that what happened before would not have any effect
on the guilt/innocence in the present case. The trial court
found that the prospective juror could be impartial and
Y aeniea the motion to excuse for cause.
Juror No. 5 (R10:1974-98, R11:2002-12): He stated that
he could follow the trial court's instructions. He heard
Bundy's name mentioned around his workplace. He knew Bundy
was tried for something in northern Florida, but he did not
know the charges or the outcome of the trial. He knew
nothing of Bundy's background. The trial court credited the
57
truth of the prospective juror's testimony and denied the
V notion to excuse for cause on that basis.
Juror No. 6 (R11:2013-51): He stated that he had no
preconceived notion of Bundy's guilt or innocence and that he
could follow the trial court's instructions. He knew that
Bundy was tried, convicted, and sentenced to death in Miami
for the murders of two sorority sisters at Florida State
University. Unlike most prospective jurors, he recalled the
dentist's testimony about the bite marks and recalled that
Bundy was a law student out west and possibly wanted out
there. Prior to the verdict in the Leon county case, he had
formed an opinion that Bundy was guilty. He stated that he
had no opinion about Bundy personally and that his knowledge
would not influence his decision because the present case was
a totally different case. He stated that he believed in the
notion of innocent until proven quilty. The trial court
vA denied the motion to excuse for cause.
Juror No. 7 (R14:2698-2737): She stated she could
follow the trial court's instructions. She was dubious about
hypnosis, but could consider the testimony. She read the
newspaper once she knew Bundy was coming to Orlando for
trial. She learned that Bundy had been tried and found
guilty. She did not know what sentence was imposed. The
¥ trial court denied a motion to excuse for cause.
Juror No. 8 (R14:2737-80): She stated that she could
follow the trial court's instructions. She stated that she
58
first heard of Bundy in the context of jury selection for
this case. She expressed no knowledge of the Leon County
trial. No challenge for cause was made.
Juror No. 9 (R16:3102-46): She stated that she could
follow the trial court's instructions. She knew that Bundy
was convicted of murder in the earlier trial, but did not
know if any sentence was imposed on Bundy. No challenge for
cause was made.
Juror No. 10 (R16:3191-98, R17:3202-27): She stated
that she had no feelings or opinions about the defendant that
would prevent her from serving as a fair and impartial juror.
She stated that she could follow the trial court's
instructions. She knew there was a prior trial, but did not
know where it was held. No challenge for cause was made.
Juror No. 11 (R17:3227-52): She stated that she could
follow the trial court's instructions. She did not have a
television, did not get the newspaper, and heard of Bundy
through conversations only. She did not recognize Bundy when
she came to court and thought one of the defense attorneys
was Bundy. She stated that she had never heard of Bundy
before reporting for jury duty. No challenge for cause was
made.
Based upon the composition, as summarized ‘above, of the
trial jury as a whole, we hold that Bundy has not shown that
the trial court committed "manifest error." Consequently, we
59
e suffered presumed or actual
reject Bundy's claim that h
prejudice as a result of pretrial publicity.
Accordingly, we hold that none of the grounds asserted
by Bundy for federal habeas corpus relief merits the granting
of his petition. Therefore, we AFFIRM the district court.
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BY MS. NELSON:
Q. WHEN YOU OBSERVED MR. BUNDY SPEAKING WITH HIS LAWYERS
OR ATTEMPTING TO SPEAK WITH HIS LAWYERS AS YOU DESCRIBED,
WHAT ACTIONS DID YOU TAKE IN RESPONSE?
MR. MENSER: OBJECTION, YOUR HONOR. WHEN AND
THE COURT: OVERRULED.
A. I WAS AWARE THAT SOME OF HIS ACTIONS WERE AGITATING
THE ATTORNEYS AND I WOULD TALK TO HIM AT TIMES WHEN HE, TO
KEEP HIM RELAXED, TO KEEP HIM, MORE OR LESS ‘TRY To ‘SUBDUE
HIM TO KEEP FROM DOING WHAT HE WAS DOING AS FAR AS AGITATING
THEM.
I DON'T KNOW WHETHER MAYBE THE WORD AGITATED IS
NOT THE WORD TO USE, BUT BOTHERING THEM WHILE THEY WERE
TRYING TO LISTEN TO THE VOIR DIRE GOING ON THERE IN LIVE
OAR.
Q. ON WHAT DID YOU BASE YOUR OPINION THAT MR. BUNDY WAS —
BOTHERING THESE ATTORNEYS?
A. FROM FIRSTHAND KNOWLEDGE. FROM BEING INFORMED.
Q.-~ ~-YOU WERE INFORMED BY WHOM? ~ ~ -
A. ~ LYNN THOMPSON COMPLAINED ABOUT IT SEVERAL TIMES.
MR. MENSER: OBJECTION AS TO HEARSAY, YOUR HONOR.
THE COURT: SUSTAINED.
MS. NELSON: YOUR HONOR, I'M ATTEMPTING TO LAY THE
PREDICATE FOR MR. KENNEDY'S CONDUCT.
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THE COURT: WELL, IT'S OBVIOUS WHAT SOMEBODY ELSE
SAID IS HEARSAY. HE CAN SAY WHAT HE OBSERVED.
BY MS. NELSON:
Q. MR. KENNEDY, COULD YOU DESCRIBE YOUR ACTIONS IN
RESPONSE TO MR. BUNDY'S CONDUCT AS YOU HAVE BEEN
DISCUSSING?
MR. MENSER: OBJECTION, YOUR HONOR. I THINK
THAT'S BEEN ASKED AND ANSWERED.
THE COURT: ALL RIGHT. THE-OBJECTION IS
SUSTAINED. HIS CONDUCT IS IRRELEVANT. IT'S MR. BUNDY'S
CONDUCT WE'RE CONCERNED WITH.
BY MS. NELSON:
Q. MR. KENNEDY, WOULD YOU DESCRIBE THE SUBSTANCE OF YOUR
CONVERSATIONS WITH HR. BUNDY DURING THE PROCEEDINGS IN LIVE
OAK?
A. YES, MA'AM. WE TALKED ABOUT WHAT WE WERE GOING TO
HAVE TO EAT THAT DAY.
Q. DID YOU TALK ABOUT ANYTHING ELSE?
A. DISCUSSED THE WEATHER, PEOPLE SITTING IN THE
COURTROOM.
MR. MENSER: YOUR HONOR, I HAVE TO OBJECT AS TO
RELEVANCE OF THIS.
THE COURT: OVERRULED.
BY MS. NELSON:
Q. WHAT WOULD BE MR. BUNDY'S COMMENT AS TO THE PEOPLE IN
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THE COURTROOM?
A. IN LIVE OAK?
Q. THAT'S RIGHT.
A. I THINK HE WOULD JUST MAKE JUST GENERAL CONVERSATION
ABOUT A PARTICULAR PERSON SITTING IN THE COURTROOM, YOU i
KNOW, SOMEONE FROM EITHER THE MEDIA OR ONE OF THE
SPECTATORS. I CAN'T REMEMBER ANYTHING IN DETAIL AS FAR AS ~
ANY OF THE COMMENTS MADE. IN GENERAL THEY WERE MADE, YOU
KNOW -— 7 -
Q. WERE THESE COMMENTS OF A SERIOUS NATURE? ~
A. OH, NO. I DON'T THINK THEY WERE SERIOUS, NO. OF A
SERIOUS NATURE?
Q. YES. ; -
A. NO. JUST PASSING THE TIME OF DAY TYPE OF COMMENTS.
Q. THANK YOU.
TO YOUR KNOWLEDGE, DID MR. BUNDY HAVE ACCESS TO
DRUGS OR ALCOHOL DURING THE PROCEEDINGS IN THIS MATTER?
A. IN LIVE OAK? ~
Q. IN LIVE OAK OR IN ORLANDO.
A. NOT IN LIVE OAK, BUT YES, IN ORLANDO.
Q. HOW DO YOU KNOW THAT MR. BUNDY HAD ACCESS TO DRUGS OR
ALCOHOL DURING THE PROCEEDINGS IN ORLANDO?
A. FROM MY OWN OBSERVATIONS.
Q. WHAT DID YOU OBSERVE?
A. WELL, WHAT DID I OBSERVE AS FAR AS WHAT?
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Q. HOW ARE YOU AWARE THAT MR. BUNDY HAD ACCESS TO ALCOHOL
DURING THE PROCEEDINGS?
MR. MENSER: I'M OBJECT TO THAT, YOUR HONOR, AS TO
THE FORM. I BELIEVE HE SAID HE HAD THE OPPORTUNITY TO
OBSERVE, HE DIDN'T SAY HE DID OR DIDN'T.
THE COURT: OVERRULED.
A. FROM TASTE, SMELL AND SIGHT.
BY MS. NELSON:
Q. IN WHAT MANNER WERE YOU ABLE TO KNOW BY TASTE?
AL THERE was A COUPLE OCCASIONS HERE IN ORLANDO WHERE TED
BECAME INTOXICATED. THROUGH HIS ACTIONS, SPEECH. AND I
SUSPECTED THAT THE JUICE THAT WAS BEING GIVEN TO HIM, THE
V-8 JUICE IN THE LARGE SIXTEEN OUNCE RESEALABLE TYPE CAN HAD
BEEN DOCITORED UP, SO ~-
Q. WHO PROVIDED THAT JUICE FOR MR. BUNDY?
A. WHO PROVIDED TSE JUICE? IT WAS GIVEN TO ME BY CAROL
BOONE. .
0. AND WHAT DID YOU DO WITH IT WHEN YOU RECEIVED IT?
A. I WAS INSTRUCTED TO GIVE IT TO TED. :
Q. WHOSE INSTRUCTIONS? :
A. ‘TED'S AND VIC'S. - -
_THE COURT: ALL RIGHT. AT THIS TIME WE'LL -TAKE A
FIFTEEN MINUTE RECESS.
(BRIEF RECESS.)
THE COURT: MISS NELSON, YOU MAY PROCEED.
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BY MS. NELSON:
Q. MR. KENNEDY, YOU REFERRED IN YOUR TESTIMONY JUST NOW
TO A PERSON YOU CALLED VIC. WHO WAS THAT?
A. THAT'S VIC AFRICANO. J. VICTOR AFRICANO. I CALL HIM
vic.
Q. THANK YOU.
DO YOU PERSONALLY KNOW THAT THE FRUIT JUICE THAT
YOU MENTIONED CONTAINED ALCOHOL?
A. YES. _ ee oo oe
Q. AND HOW DO YOU KNOW THAT?
A. FROM TASTING IT MYSELF.
Q. IN ADDITION TO THE FRUIT JUICE, WAS THERE ANY OTHER’ ~
FOOD BROUGHT iN? :
A. YES, THERE WAS. THERE WAS SOME SANDWICHES, COOKIES,
THINGS OF THAT NATURE, JUST LITTLE TIDBITS, SNACKS.
Q. DID YOU EVER DISCOVER ANY OTHER DRUGS OR ALCOHOL?
A. YES, I DID.
Q. AND IN WHICH TYPE OF FOOD WAS THAT?
A. SORRY?
Q. DID YOU FIND OTHER TYPES OF DRUGS OR ALCOHOL IN OTHER
FOOD?
A. YES, WE DID. WHEN I SAY WE, MYSELF AND THE SECRETARY
THAT WE HAD THERE WORKING WITH US HERE IN ORLANDO FOUND A
PILL IN, ONE OR TWO PILLS IN HIS BAG OF GOODIES THAT DAY.
Q. AND WHAT DID YOU DO WHEN YOU DISCOVERED THE PILLS?
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A. THEY WERE FLUSHED DOWN THE TOILET.
Q. COULD YOU DESCRIBE THOSE PILLS?
A. YEAH. FROM MY BEST MEMORY OF THEM THEY WERE LITTLE
ROUND TABLETS, BLUISH GRAY, GREENISH COLOR. I DON'T KNOW
EXACTLY WHAT IT SAID ON IT. 1f WASN'T GOING TO FIND OUT,
WASN'T INTERESTED, I JUST WANTED TO DISPOSE OF THEM.
Q. WHAT WAS MR. BUNDY'S REACTION TO YOUR DISCOVERY OF THE
PILLS?
A. NOTHING WAS SAID VERBALLY BETWEEN TED AND I, BUT
ACTIONS SORT OF SPEAK LOUDER THAN WORDS. .
Q. WHAT WERE MR. BUNDY'S ACTIONS IN RESPONSE?
A. I THINK HE WAS DISAPPOINTED IN ME FOR WHAT I HAD DONE.
Q. AND HOW DID HE MANIFEST HIS DISAPPOINTMENT?
A. SOR! OF IN HIS OWN UNIQUE WAY.
Q. DID YOU INFORM ANY OF MR. BUNDY'S ATTORNEYS THAT YOU
HAD DISCOVERED ALCOHOL AND THESE PILLS IN MR. BUNDY'S LUNCH?
A. YES, I DID.
Q. WHICH ATTORNEYS DID YOU INFORM?
A. BOTH VIC --
MR. MENSER: YOUR HONOR, I'M GOING TO HAVE TO
OBJECT TO RELEVANCE AT THIS POINT. I'D LIKE TO APPROACH THE
BENCH.
THE COURT: -ALL RIGHT,.SIR. - = -
(BENCH CONFERENCE ON THE RECORD. )
MR. MENSER: YOUR HONOR, WE'RE GOING TO, WE'D LIKE
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TO PLACE AN OBJECTION REGARDING ANY QUESTIONS CONCERNING MR.
AFRICANO AND HIS CONDUCT IN THIS CASE. THERE IS A PENDING
ISSUE IN ATLANTA REGARDING THE COMPETENCE OF COUNSEL AND
WHILE WE WERE REMANDED HERE FOR HEARING ON THE COMPETENCE OF
TED BUNDY AND HIS ABILITY TO STAND TRIAL, WE DON'T BELIEVE
THESE PROCEEDINGS SHOULD BE USED TO LAY THE GROUNDWORK FOR A
SECOND EVIDENTIARY HEARING REGARDING MR. AFRICANO LATER AND
WE THINK THAT'S WHAT IS BEING DONE HERE.
THE COURT: IF I SEE THAT IT'S GOING THAT WAY, I
WILL CUT IT OFF. I WILL AGREE WITH YOU IN THAT RESPECT.
THIS IS, AS I MENTIONED BEFORE, IT'S FOR THE VERY NARROW
ISSUE AND YOU SHOULD KEEP IT ON TRACK.
MR. COLEMAN; THE USE OF THE DRUGS AND THE ALCOHOL
THOUGH IS RELEVANT TOO BECAUSE IT'S REFLECTIVE OF HIS
CONDITION DURING THE TRIAL AND THAT'S THE IMPORTANCE OF IT.
IT HAS NOTHING TO DO WITH MR. AFRICANO'S COMPETENCE OR
INCOMPETENCE.
MR. MENSER: THAT'S FINE, AS LONG AS THEY'RE
TALKING ABOUT MR. BUNDY'S USE OF IT. BUT WHEN HE GETS INTO
WHAT AFRICANO DID, WHAT HE DIDN'T DO, THEN YOU'RE GETTING
INTO A PIECEMEAL LITIGATION STRATEGY AND WE OBJECT TO IT.
- .MR._ COLEMAN: _ LET ME EXPLAIN... IT HAS TO_DO_WITH
WHETHER IT WAS STOPPED AND WHETHER MR. BUNDY INSISTED ON
CONTINUING TO RECEIVE THIS STUFF.
MR. MENSER: I DON'T SEE THE RELEVANCE OF THAT TO
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MENTAL COMPETENCE TO STAND TRIAL.
MR. COLEMAN: THAT'S WHY IT'S RELEVANT.
THE COURT: THEY CAN GET ON THE RECORD THE NUMBER
OF TIMES THAT IT WAS DONE, BUT SO FAR iT WAS BROUGHT IN BY
CAROL BOONE AND LET'S LEAVE IT AT THAT.
MR. COLEMAN: THAT'S FINE. AND WE WON'T GET --
(END OF BENCH CONFERENCE.)
THE COURT: ALL RIGHT, MA'AM. YOU MAY PROCEED.
MS. NELSON:- ‘THANK YOU, YOUR HONOR. = 7
BY MS. NELSON:
Q. MR. KENNEDY, ONCE YOU DISCOVERED THE DRUGS AND ALCOHOL
IN MR. BUNDY'S LUNCHES AS YOU'VE DESCRIBED, DID YOU CONTINUE
TO PROVIDE THESE LUNCHES TO MR. BUNDY?
A. WELL, FIRST OF ALL, I DIDN'T PROVIDE THEM TO BEGIN
WITH. I WASN'T THE PROVIDER SO TO SAY, I'M SORT OF THE IN
BETWEEN TYPE, THE GO-FER SO TO SAY, BUT LET'S CLARIFY THAT
MATTER.
NO, I DID NOT, NOT AFTER THAT, AFTER WHAT I
DISCOVERED. AND AFTER I HAD BROUGHT IT OUT TO THE ATTENTION
OF THE ATTORNEYS, HY REQUEST WAS IS THAT I NOT BE INVOLVED
ANY MORE IN TRANSPORTING THE LUNCHES TO AND FROM.
Q. DID YOU RECOMMEND TO ANYONE THAT MR. BUNDY NOT BE
PERMITTED TO RECEIVE LUNCHES FROM THE OUTSIDE?
A. YES, I DID.
Q. TO WHOM DID YOU MAKE THIS RECOMMENDATION?
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A. TO VIC AFRICANO.
Q. AND DO YOU KNOW WHETHER MR. BUNDY DID. CONTINUE TO
RECEIVE LUNCHES FROM THE OUTSIDE?
A. YES, I DO.
Q. DID HE?
A. YES, HE DID.
MR. MENSER: YOUR HONOR, I'M GOING TO HAVE TO
OBJECT AS TO RELEVANCE ON THIS.
THE COURT: SUSTAINED.
MR. MENSER: I'D ASK. THAT THAT LAST QUESTION AND
ANSWER BE STRICKEN.
THE COURT: IT WILL BE STRICKEN.
BY MS. NELSON:
OF MR. BUNDY THAT SUGGESTED TO YOU THAT HE WAS USING DRUGS
OR ALCOHOL DURING THE PROCEEDINGS? 7
, MR. MENSER: OBJECTION, YOUR HONOR, NO. PREDICATE.
THE COURT: SUSTAINED.
BY MS. NELSON:
Q. MR. KENNEDY, YOU TESTIFIED EARLIER IN YOUR TESTIMONY
THAT YOU HAD KNOWLEDGE THAT MR. BUNDY HAD ACCESS TO DRUGS
- AND-ALCOHOL BECAUSE OF HIS BEHAVIOR ON CERTAIN OCCASIONS.
COULD YOU DESCRIBE THOSE OCCASIONS?
A. YES, MA'AM. THIS WAS IN THE FIRST WEEK OF THE
PROCEEDINGS HERE IN ORLANDO AT THE COURTHOUSE DURING JURY
Q. MR. KENNEDY, DID YOU EVER OBSERVE BEHAVIOR ON THE PART
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SELECTION WHICH LASTED AT LEAST A WEEK, SEVEN DAYS, SIX
DAYS, SEVEN, FIGHT DAYS, AND DURING THAT FIRST WEEK I HAD
OBSERVED TED ON MORE THAN ONE OCCASION, THICK TONGUED,
SLURRED SPEECH AND UNUSUAL BEHAVIOR.
AND THOSE OCCASIONS, ONE IN PARTICULAR I REMEMBER,
WAS DURING JURY SELECTION WHERE TED BECAME UPSET, OUTRAGED,
BELLIGERENT, WHATEVER TERM YOU WANT TO ATTACH TO iT,
REGARDING A SPECIFIC JUROR BY THE NAME OF, I BELIEVE HIS
NAME WAS PATRICK WOLSKY, WOLFSKY SKI, SOMETHING LIKE THAT.
Q. DID MR. BUNDY MANIFEST HIS BEHAVIOR IN THE COURTROOM?
A. YES, HE DID.
Q. CAN YOU DESCRIBE WHAT HE DID? ‘ . oe
A. AFTER THE PARTICULAR MOTION WAS DENIED BY THE COURT,
HE BECAME UPSET, APPROACHED THE BENCH SHAKING HIS FINGER,
SHAKING HIS FINGER AT MR. BLAIR AND INFORMING MR. BLAIR THAT
HE WOULD RAIN ON HIS PARADE AND YANKING THE JACKET OFF,
JERKING AWAY FROM ONE OF THE BAILIFFS. ALL THIS TIME WITH
THICK TONGUE AND SLURRED SPEECH.
Q. THANK YOU-
MR. KENNEDY, WERE YOU ABLE TO OBSERVE MR. BUNDY'S
REACTION TO THE VERDICT OF GUILTY IN THIS CASE?
A. YES, I WAS. I WAS PRESENT IN THE COURTROOM THAT DAY.
Q. WHAT WAS MR. BUNDY'S REACTION TO THE VERDICT WHILE HE
WAS IN THE COURTROOM?
A. NONE WHATSOEVER. AS HE WAS STANDING IN BETWEEN BOTH
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VIC AFRICANO AND LYNN THOMPSON AND MYSELF AGAIN DIRECTLY
BEHIND THEM, SORT OF IN BETWEEN AGAIN, AND TED, THERE WAS NO
EMOTION AT ALL DISPLAYED, NONE.
Q. DID YOU HAVE AN OPPORTUNITY TO OBSERVE MR. BUNDY'S
REACTION TO THE VERDICT OUTSIDE OF THE COURTROOM?
A. YES, I DID.
Q. WOULD YOU DESCRIBE THAT REACTION, PLEASE?
A. AT THAT PARTICULAR MOMENT THERE WAS NO CONCERN AT
ALL. THERE WAS SEVERAL HOURS -- I ANSWERED! THE QUESTION, _
NO, THERE WAS NO CONCERN AT ALL.
Q. DID MR. BUNDY SEEM DISAPPOINTED BY THE VERDICT?
A. NO, NO, HE WASN'T, NO.
Q. DID MR. BUNDY SEEM DEPRESSED?
A. NOT AT THAT TIME. A LITTLE LATER HE DID, YES-
Q. AND DID MR. BUNDY SEEM TO BE CONCERNED ABOUT THE
POSSIBILITY OF RECEIVING A DEATH SENTENCE?
A. NO, MA'AM.
Q. WHAT WAS MR. BUNDY CONCERNED ABOUT AT THIS POINT IN
THE PROCEEDINGS?
A. HIS MARRIAGE, OR SO-CALLED MARRIAGE.
Q. WAS MR. BUNDY CONCERNED ABOUT HIS APPEARANCE?
A. OH, VERY MUCH SO.
Q. CAN YOU DESCRIBE? ~ 7
A. WELL, THAT STARTED FROM DAY ONE. HIS APPEARANCE WAS
PROBABLY ONE OF THE MOST IMPORTANT THINGS TO HIM, YES.
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MR. MENSER: YOUR HONOR, WE'D OBJECT TO RELEVANCE.
THE COURT: OVERRULED. .
A. HE WAS PROVIDED WITH AN ELECTRIC RAZOR, BESIDES A
REGULAR BIC DISPOSABLE RAZOR. HE USED BOTH. I FORGET WHICH
ORDER. I THINK HE SHAVED WITH THE ELECTRIC RAZOR FIRST,
THEN THE DISPOSABLE RAZOR DUE TO IRRITATION OF SKIN
PREVENTED HIM FROM DOING SUCH. I MAY HAVE THAT ORDER
BACKWARDS, I DON'T KNOW.
Q.. WAS MR. BUNDY. CONCERNED ABOUT HIS DIET? —- ----
A. DIET, CLOTHES, YES, VERY MUCH. MORE SO THAN THE
PROCEEDINGS ITSELF.
Q. WHEN MR. BUNDY WAS IN THE OFFICE BEHIND THE COURTROOM
WITH YOU, CAN YOU DESCRIBE HIS BEHAVIOR GENERALLY?
I'M SORRY. #AYBE I SHOULD CLARIFY THAT. WHEN MR.
BUNDY -- DID YOU HAVE AN OPPORTUNITY TO VIEW MR. BUNDY WHEN
HE WOULD FIRST RETURN FROM THE COURTROOM TO THE ROOM THAT
WAS USED AS AN OFFICE IN THE COURTROOM?
A. YES, YES, EVERY DAY, EVERY RECESS.
Q. CAN YOU DESCRIBE HIS BEHAVIOR? 7
A. MOST OF THE TIMES IT WAS GOOD, LAUGHING, MAKING
COMMENTS ABOUT A PARTICULAR WITNESS, SOMETHING THEY MAY HAVE
A FEW DAYS, QUITE A FEW DAYS HE'D GET IN HIS
MOODS, GET UPSET, MAYBE NOTHING IN PARTICULAR THAT WAS
HAPPENING IN THE PROCEEDINGS THAT DAY, BUT SOMETHING OUTSIDE
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IN HIS LIFE.
Q. CAN YOU DESCRIBE MR. BUNDY'S PHYSICAL BEHAVIOR?
A. PHYSICAL BEHAVIOR?
Q. YES. WAS HE PHYSICALLY ACTIVE?
A. OH, YEAH. CONSTANTLY PACING THE FLOOR, ESPECIALLY
WHEN I WAS ON THE PHONE. PACED CONSTANTLY. WASN'T DOING
ANY SIT-UPS, PUSH-UPS, THINGS OF THAT NATURE, BUT YES, HE
WAS REAL ACTIVE.
Q. DO YOU HAVE AN IMPRESSION ABOUT WHY MR. BUNDY WAS
PACING ESPECIALLY WHEN YOU WERE -ON THE TELEPHONE?
A. YES, MA'AM.
f
MR. MENSER: I'D HAVE AN OBJECTION TO THAT. I
DON'T KNOW THAT THERE WAS ANY FOUNDATION FOR THAT.
THE COURT: SUSTAINED.
BY MS. NELSON:
Q. DID MR. BUNDY EVER INDICATE TO YOU, MR. BUNDY EVER SAY
ANYTHING TO YOU WHEN YOU WERE ON THE PHONE WHEN YOU WERE IN
THE OFFICE?
A. HE DIDN'T HAVE TO.
Q. WHAT DO YOU MEAN BY THAT?
A. I WAS -- BEFORE -- BY THE TIME THE PHONE WAS HUNG UP,
AFTER I COMPLETED MY CALL, I DIDN'T HAVE A CHANCE TO GET MY -
HANDS OFF OF IT BEFORE HE HAD IT.
Q. YOU SAID THAT MR. BUNDY WOULD SOMETIMES COMMENT ABOUT
A STATEMENT BY A WITNESS THAT HE PERCEIVED AS FUNNY. DO YOU
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RECALL ANY SUCH REMARKS SPECIFICALLY?
MR. MENSER: I'D HAVE TO OBJECT AS TO RELEVANCE,
YOUR HONOR. I DON'T KNOW IF ANY PARTICULAR REMARK IS
IMPORTANT.
THE COURT: OVERRULED.
A. YES. NOT ANYTHING IN PARTICULAR, BUT I KNOW THAT SOME
OF THE TESTIMONY REGARDING HYPNOSIS, THE STATE'S EXPERTS ON -
HYPNOSIS, A LOT OF THAT WAS COMICAL TO HIM.
Q. DID MR. BUNDY EVER MAKE ANY COMMENTS REGARDING THE
PROSECUTORS? a 7 - 7 : -
A. YES, MA'AM.
Q. CAN YOU RECALL SOME OF THOSE COMMENTS?
A. YES, MA'AM.
QO. CAN YOU DESCRIBE SOME?
A. YES, MA'AM.
Q. WOULD YOU, PLEASE? -
A. NEVER HAD A DISCOURAGING WORD AT ALL TO SAY ABOUT
JERRY BLAIR, NOT AT ALL, NEVER ONE. BUT THE OTHER TWO
ASSISTANTS INVOLVED FROM MR. BLAIR'S OFFICE, LYNN REGISTER
WHO WAS GIVEN THE NICKNAME FIDGET. I DON'T KNOW IF THAT WAS
TED'S ORIGINAL NICKNAME OR IF IT WAS CONCOCTED, SOMEWHERE
SAID DURING THE PROCEEDINGS. BUT BOB DEKLE WAS VERY, VERY
COMICAL TO HIM FROM- THE GET-GO; {THE-BEGINNING. FROM LAKE--
CITY TO LIVE OAK TO ORLANDO. YOU WANT DETAILS?
Q. WOULD YOU DESCRIBE?
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LAUGHED ABOUT THIS AND COMMENTED ABOUT THIS SEVERAL
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A. INSTANCES?
Q. WHAT KIND OF COMMENTS HE MADE ABOUT MR. DEKLE.
A. YEAH, THERE WAS A BUNCH OF THEM. PROBABLY THE MOST
COMICAL TO MYSELF ALSO WAS BOB HAD A PAIR OF SHOES THAT WERE
RUBBER SOLES AND BOB WOULD SIT IN THE JUDGE'S CHAMBERS WHEN
WE WERE HAVING MOTIONS IN THE LAKE CITY AND ALSO IN ORLANDO,
CROSS HIS LEG, AND EVERY TIME HIS TOES WOULD WIGGLE OR ANY
PART OF HIS FOOT, THE SHOES WOULD JUST .SQUEAK BAD. AND WE
TIMES.
AND ONE SPECIFIC INCIDENT IN ORLANDO THAT I
REMEMBER THAT BOB APPARENTLY OR BECAME AWARE THAT WE WERE,
AND I SAY WE BECAUSE IT WAS, WE WERE MAKING COMMENTS TO EACH
OTHER ABOUT IT, AND ONE PARTICULAR INCIDENT IN THE JUDGE'S
CHAMBERS THERE, IN JUDGE JOPLIN'S CHAMBERS HERE IN ORLANDO,
BOB KNEW THAT IT WAS AGITATING OR AGGRAVATING TED, AND HE
LOOKED OVER AT -- :
MR. MENSER: YOUR HONOR, I DON'T MEAN TO INTERRUPT
THE WITNESS, THIS IS VERY ENTERTAINING, BUT I DON'T SEE THE
RELEVANCE OF IT. : -
THE COURT: OVERRULED.
BY MS. NELSON:
-Q. - -HR.-KENNEDY, COULD YOU DESCRIBE, DO YOU RECALL —
PRECISELY ANY COMMENTS THAT MR. BUNDY MADE REGARDING MR.
DEKLE?
A. YEAH, I'M SURE HE REFERRED TO HIM AS A TOBACCO CHEWING
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BUFFOON, SOMETHING OF THAT NATURE.
Q. DID HE MAKE COMMENTS ABOUT THE SHOES' THAT YOU JUST
DESCRIBED?
A. YES, HE DID.
Q. AND WERE THESE COMMENTS OF A SERIOUS NATURE?
A. I DON'T BELIEVE THEY WERE SERIOUS. T THINK THIS WAS
JUST LITTLE QUIRKS THAT BOB MAY HAVE HAD THAT MAYBE AGITATED
BOTH VIC AND TED.
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BY MS. NELSON:
oO. DO YOU RECALL WHETHER MR. BUNDY MADE JOKES ABOUT OTHER
MATTERS?
A. OTHER MATTERS?
I BELIEVE THERE MAY HAVE BEEN, BUT IF YOU ASK ME
WHAT, I CAN'T RECALL. YOU KNOW, THERE WAS SO MUCH SAID, SO
MUCH DONE, YOU KNOW, 8 YEARS IS A LONG TIME.
Q. _ WHAT WAS YOUR IMPRESSION OF MR. BUNDY IN TERMS OF HIS
NATURE, HIS CONVERSATIONAL NATURE?
A. VERY INTELLIGENT, VERY BROAD VOCABULARY.
Q. WAS HE WITTY?
A. AT TIMES HE COULD BE, YES, MA'AM.
Q. WAS HE FUNNY?
A. NO, NOT REALLY.
Q. MR. KENNEDY, YOU MENTIONED EARLIER WHAT YOU
REFERRED TO AS MARRIAGE CEREMONY. 7
WHEN DID THIS OCCUR? Sk
A. ACTUAL CEREMONY ITSELF?
Q. > (THAT'S RIGHT? ~ 7 7 :
A. ~ THE DAY OF THE PENALTY PHASE, ON SATURDAY, JANUARY, OR
EXCUSE ME, FEBRUARY EIGHTH OR NINTH SOMEWHERE AROUND THERE.
QO. DO YOU RECALL?
A. NINTH I SELIEVE.
Q. DO YOU RECALL MR. BUNDY'S CONDUCT IMMEDIATELY BEFORE
THE PROCEEDING?
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KENNEDY —- DIRECT -— NELSON
85
A. YES, MATAM. HE WAS REAL UP TIGHT, REAL NERVOUS, I
GUESS, VERY SIMILIAR TO ONES BIG WEDDING DAY, BUT HE WAS
REAL CONCERNED ASOUT THE WAY HE WAS DRESSED WITH HIS CUTE
LITTLE BOW TIE, YOU COULD TELL THAT HE WAS REAL NERVOUS
ABOUT HAVING CAROL TAKE THE STAND, AND WHATEVER, HE HAD TO
PROPERLY SAY TO COMPLETE THE CEREMONY, VERY CONCERNED ABOUT
THAT.
Q. DID YOU DO ANYTHING EXTROARDINARY ON ‘THAT DATE?
A. MYSELF? -
Q. YES? .
A. I GUESS I WAS THE PHOTOGRAPHER FOR tHE WEDDING, I
GUESS YOU COULD SAY.
Q. WHAT MANNER?
A. I JUST, I HAD MY OWN CAMERA THERE AT THE COURTHOUSE,
AND TOOK SOME SOME PHOTO'S OF THE GROOM.
Q. THIS WAS DURING THE PENALTY PHASE?
A. | YES, THIS WAS THE DAY OF. THE PENALTY PHASE.
Q. ON THE DAY OF THE PENALTY PHASE? -
A. YES, MA™AM, I AM NINETY NINE PERCENT THE PENALTY PHASE
WAS COMPLETED IN ONE DAY, SATURDAY.
QO. IN YOUR EXPERIENCE. HAVE. YOU. OBSERVED ANY OTHER _— -
DEFENDANT ACT IN THIS MANNER ON THE DAY OF HIS PENALTY
PHASE?
A. NO, MA*AM.
Q. MR. KENNEDY, WAS THIS MARRIAGE A SPUR’ OF THE MOMENT
KENNEDY —- DIRECT ~ NELSON
86
DECISION?
A. NO. MA'AM, MARRIAGE CEREMONY-—
THE COURT: SUSTAINED. !
THE WITNESS: NO.
MR. MENSER: I WOULD LIKE THE LAST RESPONSE
STRICKEN. FROM THE RECORD. -
THE COURT: IT WILL BE STRICKEN.
BY MS. NELSON:
Q. WERE YOU AWARE OF THE PREPARATION, WERE YOU AWARE -
WHETHER OR NOT THERE WERE PREPARATIONS LEADING UP TO THIS
f
MARRIAGE CEREMONY?
A. AWARE AND INVOLVED.
oO. WERE YOU DESCRISE THE FIRST TIME THAT YOU WERE AWARE
OF SUCH A CEREMONY?
A. YES, MA'AM. WHEN I WAS INSTRUCTED TO NOTARIZE THE
MARRIAGE LICENSE.
Q. WHO INSTRUCTED YOU TO NOTARIZE THE MARRIAGE LICENSE?
A. I AM SURE IT WAS VIC, I AM SURE.
Q. DO YOU RECALL APPROXIMATELY WHEN THIS OCCURRED?
A. WELL, HAD TO BE 1 @uESS AT LEAST TWO WEEKS BEFORE THE
ACTUAL CEREMONY ITSELF, PROBABLY THREE WEEKS, BACK IN THE
MIDDLE OF THE TRIAL. Se
QO. DO YOU RECALL WHETHER THEY WERE ANY OTHER PROCEDURES
UNDERTAKEN IN REGARD TO THE MARRIAGE CEREMONY?
A. YES, THERE WAS. ARRANGEMENTS WERE MADE FOR £ M T OR
H
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KENNEDY ~- DIRECT ~ NELSON
87
SOME SORT OF MEDICAL TECHNICIAN TO COME AND TAKE A BLOOD
SAMPLE FROM TED THERE AT OUR OFFICE BEHIND THE COURTROOM
HERE IN ORANGE COUNTY.
Q. DO YOU KNOW WHO AUTHORIZED THAT BLOOD TEST?
A. EVERY ONE THERE AT THE COURT HOUSE WAS AWARE OF IT.
WHEN I SAY EVERY ONE I AM TALKING ABOUT EVERYBODY THERE
INVOLVED WITH THE DEFENSE, THE BAILIFFS, SAILIFFS WERE VERY
MUCH AWARE OF_ WHETHER THE STATE WAS, I DON'T KNOW, I_
DON'T HAVE ANY IDEA. I IMAGINE THEY WERE WHEN THEY SAW E M
T COME BACK TO OUR OFFICE.
Q. WAS MR. AFRICANO AWARE?
A. YES.
MR. MENSER: I OBJECT ABOUT MR.--
THE COURT: SUSTAINED.
BY MS. NELSON:
Q. MR. KENNEDY, DID MR. BUNDY EVER DISCUSS THE UP COMING
MARRIAGE CEREMONY WITH YOU? See
A. YES.
Q. HOW FREQUENTLY DID YOU DISCUSS THIS? 7
A. AS IT GOT CLOSER ON A DAILY BASIS, AND WHEN I Say
CLOSER, THREE OR FOUR DAYS 8EFORE, THE. CRIGINAL PLAN WAS FOR
ME TO CONDUCT THE CEREMONY, BEING A NOTARY BACK THERE IN OUR
OFFICE, ALLOW CAROL TO COME BACK THERE, BUT THAT WAS PUT A
STOP TO WITH JUDGE JOPLIN ORDERING ALL. PARTIES INVOLVED THEY
WOULD NOT PARTICIPATE, BE INVOLVED IN ANY MARRIAGE OF TED
2
3
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25
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KENNEDY ~ DIRECT — NELSON
88
BUNDY OR CAROL BUNDY. SO THAT ELIMINATED MY INVOLVEMENT AT
THAT POINT, FROM THERE, BUT THEN AGAIN THERE WAS DISCUSSIONS
AND TALKS ABOUT IT.
Q. DID YOU HAVE ANY REACTION TO YouR INVOLVEMENT IN THIS
MARRIAGE CEREMONY HAVING BEEN ENDED?
A. SAY THAT AGAIN.
Q. THAT WAS A CONVOLUTED QUESTION.
YOU STATED THAT. YOU'RE ROLE IN, THAT ORIGINALLY
YOUR ROLE HAD BEEN PARTICIPATE IN THE CEREMONY?
A. YES.
Q. AND AT SOME POINT THAT WAS ENDED, PLANS CHANGED?
A. YES.
Q. DID YOU HAVE ANY PARTICULAR REACTION TO THE FACT THAT
YOU WOULD NO LONGER BE PERFORMING THE CEREMONY?
A. I WAS RELIEVED.
Q. WHY WERE YOU RELIEVED?
A. - WELL, SECAUSE I HAD NEVER DONE-THIS BEFORE FOR A
CLIENT, AND NOT THAT I HAVE ANY-- I HAVE BEEN A NOTARY
SEVERAL YEARS, NEVER HAD THE PLEASURE OF MARRYING ANYONE, —
BUT I THOUGHT IT WAS KIND OF AN UNUSUAL REQUEST. 8UT THEN
AGAIN I WAS GOING TO DO-IT AS LONG -AS- IT WAS-LEGAL.- - ~
Oo. BID YOU HAVE AN OPINION WHETHER THIS WAS AN
APPROPRIATE USE OF THE PENALTY PHASE.
MR. MENSER: YOUR HONOR, I OBJECT TO THAT.
THE COURT: SUSTAINED.
KENNEDY ~ DIRECT - NELSON
89
BY MS. NELSON:
Q. MR. KENNEDY, OVER THE TIME THAT YOU KNEW MR. BUNDY,
DID HE APPEAR TO YOU TO HAVE DIFFERENT MOODS AT DIFFERENT
A. VERY MUCH.
Q. CAN YOU DESCRIBE THESE mooDS?
MR. MENSER: YOUR HONOR, I OBJECT ON THE BASIS OF
RELEVANCE, AND ALSO THE FACT I THINK IT's PAST THE ANSWER.
BY MS. NELSON: -
|
|
|
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| 4 TIMES?
E )"—
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10 | Q. LET ME BE MORE SPECIFIC. MR. KENNEDY, YOU FIRST MET
W | MR. BUNDY AT THE FLORIDA STATE PRISON; IS THAT CORRECT?.
12 | A. Yes. |
13 Q. AND WHAT WAS YOUR IMPRESSIONS OF MR. BUNDY AT THAT
14 | TIME?
I
MR. MENSER: OBJECTION, YOUR HONOR. I BELIEVE THIS
ee Ent
a
HAS BEEN RUN OVER.
Chess
3
THE COURT: SUSTAINED. HAS BEEN GETTING
| |
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18 REPETITIVE.
|
19 | MS. NELSON: I DON'T RECALL THAT WE HAVE TALKED
a 20 | ABOUT MR. BUNDY'S MooDSs, Your HONOR.
{
21 THE COURT: WELL, I HAVE GOT LOTS OF NOTES ON MR.
22 | BUNDY'S MOODS, SO SOMEBODY ASKED ABOUT IT. |
23 MS. NELSON: I AM GLAD TO HEAR THAT. H
24 | BY MS. NELSON:
25 O.° MR. KENNEDY, WAS MR. BUNDY EVER PARTICULARLY
l
reg pry
ey
reer
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KENNEDY ~ DIRECT - NELSON
30
TALKATIVE?
A. YES, HE WAS.
Q. WAS HE EVER NOT TALKATIVE?
A. YES, HE WAS.
MR. MENSER: YOUR HONOR, SHE'S TRYING TO DO
INDIRECTLY WHAT SHE CAN'T DO DIRECTLY.
THE COURT: SUSTAINED.
BY MS. NELSON:
Q. MR. KENNEDY, DID MR. BUNDY EVER APPEAR TO YoU
DIFFERENT IN HIS APPEARANCE FROM OTHER TIMES?
MR. MENSER: SAME OSJECTION, YOUR HONOR.
THE COURT: CVERRULED.
THE WITNESS: YES, HE DID ONCE, ONE SPECIFIC
INCIDENT I DEFINITELY RECALL.
BY MS. NELSON:
Q. WOULD YOU DESCRIBE THAT INCIDENT?
A. YES, IT WAS ON ONE OF THE EVENINGS WHEN COURT HAD
RECESSED, BOTH VIC AFRICANO AND LYNN THOMPSON WERE OUT OF
THE ROOM, OR SECRETARY WAS GONE, OUR CLIENT WAS-USING THE
PHONE OFF AND ON, AND. I WAS THERE-TALKING WITH HIM-AND HE
WAS ONE OF THESE EVENINGS OR AFTERNOONS WHEN HE BECAME
INTOXICATED. ~
Q. AND WHAT MANNER-— DID HIS APPEARANCE SEEM TO BE
DIFFERENT TO You?
A. TO ME HE SEEMED LIKE A COMPLETELY DIFFERENT PERSON.
i
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25
KENNEDY ~ DIRECT ~ NELSON
Q. CAN YOU DESCRIBE THE CHANGE?
A. IT WASN'T A FRIGNTENING TYPE CHANGE, BUT IT WAS A VERY
UNUSUAL TYPE CHANGE, A DIFFERENT TED THAT I HAD BEEN
ACCUSTOMED TO BEING AROUND.
Q. CAN YOU DESCRIBE MORE SPECIFICALLY WAS THERE A CHANGE
IN HIS FACE?
A. WELL, THE FACIAL EXPRESSION WAS CHANGED SOMEWHAT, HE
WAS RAMBLING, TALKING ABOUT BEING VERY ENVIOUS OF VIC AND
LYNN AND MYSELF BECAUSE WE WERE ASLE TO GO HOME THAT EVENING
AND KICK OUR SHOES OFF AND RELAX, HAVE A DRINK, GO OUT AND
EAT A DINNER AND AHVE A DRINK, COME BACK, HAVE A DRINK, GO
INTO A LOUNGE TO RELAX AND A DRINK. HE COMPLETED THE
COMMENT THAT, COMPLETED THE CONVERSATION 8Y. LOOKING AT ME
AND INFORMING ME THAT HE ENJOYED DOING THOSE TYPE OF THINGS
ALSO.
Q. CAN YOU DESCRIBE, HOW WOULD YOU DESCRIBE HOW MR. S8UNDY
LOOKED AT THE END OF THAT CONVERSATION?
A. LIKE HE WAS TRYING TO CONVINCE ME OF SOMETHING.
Q. DID HE LOOK DIFFERENT THAN HE HAD LOOKED AT OTHER
TIMES THAT YOU HAVE KNOWN HIM?
A. YES, I WOULON'T SAY THAT HIS WHOLE FACIAL APPEARANCE
HAD CHANGED SOME, BUT IT WAS A QUITE SERIOUS TYPE LOOK.
Q. MR. KENNEDY, WAS THERE EVER A TIME WHEN YOU THOUGHT
THAT MR. BUNDY MAY HAVE HAD MORE THAN ONE PERSON
PERSONALITY?
E.
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KENNEDY ~ DIRECT - NELSON
92
MR. MENSER: OBJECTION, YOUR HONOR.
THE COURT: SUSTAINED.
BY MS. NELSON:
Q- MR. KENNEDY, DID YOU HEAR MR. BUNDYS SPEECH To THE
JURY AT THE END OF THE PROCEEDINGS IN THIS MATTER?
A. YES, I DID, DURING THE PENALTY PHASE.
Q. DID YOU OBSERVE MR. BUNDY MAKING THAT SPEECH TO THE
JURY? _ _ . - _
A. YES, I DID.
Q. DID YOU HAVE ANY PARTICULAR REACTION?
MR. MENSER: OBJECTION AS TO RELEVANCE, YOUR HONOR.
THE COURT: SUSTAINED.
MS. NELSON: I HAVE NO FURTHER QUESTIONS. THANK
YOU.
CROSS EXAMINATION.
BY MR. MENSER:
Q. GOOD MORNING, MR. KENNEDY. STILL MORNING.
OUT OF THE THOUSANDS OF CLIENTS YOU WORKED WITH IN
THE COURSE OF YOUR CAREER, HOW MANY OF THEM. HAD COLLEGE
DEGREE IN PSYCHOLOGY.
MS. NELSON: O8JECTION, YOUR HONOR. THIS IS THE
TYPE OF QUESTION THAT MR.. MENSER OBJECTED To. - -
THE COURT: OVERRULED.
THE WITNESS: DEGREE IN PSYCHOLOGY? I THINK THAT
THERE WAS AT LEAST ONE AND THERE MAY HAVE BEEN MORE THAN
ee
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25
EVER BEEN INSTRUCTED BY DEFENSE COUNSEL TO OBTAIN
KENNEDY — CROSS ~ MENSER
93
ONE, YES.
BY MR. MENSER:
oO. AND HOW MANY OF THEM HAD LEGAL TRAINING AS WELL AS A
DEGREE IN PSYCHOLOGY?
A. I WOULD, WOULD YOU CLASSIFY LEGAL TRAINING AS FAR AS
PRIOR CRIMINAL RECORD?
Q. AS FAR AS LAW SCHOOL TRAINING?
A. LAW SCHOOL, I DON'T THINK, I DON’T THINK ANY OF THEM
DID.
Q. REGARDING THE OUTBURST DURING JURY SELECTION,
REGARDING VENIREMAN WOLSKI, DID YOU HAVE A CONVERSATION WITH
WITH 808 DEKLE REGARDING THAT OUTBURST?
A. I MAY HAVE.
Q. DO YOU RECALL TELLING BOB DEKLE THAT TED BUNDY PLANNED
THAT OUTBURST FOR THE BENEFIT OF THE MEN ON DEATH ROW?
A. I DON'T KNOW WHETHER I MAY HAVE SAID THAT, IF BOB SAID
THAT I SAID THAT, HE COULD BE CORRECT. THERE WAS DISCUSSION
THERE AMONGST ALL THE CHARACTERS INVOLVED IN THE CASE, THAT
THIS WAS THE PLAN, YES, SIR, OR THAT WAS HIS PLAN.
OQ. IN THE COURSE OF INVESTIGATING CAPITAL CASES, HAVE You
INFORMATION THAT WOULD HUMANIZE A CLIENT?
MS. NELSON: OBJECTION. RELEVANCE.
THE COURT: SUSTAINED.
BY MR. MENSER: '
need
24
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KENNEDY — CROSS - MENSER
94
Q. YOU SAID YOU OBTAINED BACKGROUND MATERIAL ON YOUR
CLIENTS, INCLUDES THINGS REGARDING THEIR PRIOR CRIMINAL
RECORD?
A. PRIOR CRIMINAL RECORD, YES, SIR.
Q. ALSO OBTAIN EVIDENCE WHICH WOULD IMPROVE THFIR
APPEARANCE, WOULDN'T YOU? -
A. COULD YOU BE A LITTLE MORE SPECIFIC.
QC. LET'S TAKE TED BUNDY. HERE YOU HAVE A MAN HERE
ACCUSED OF BRUTALLY MURDERING A TWELVE YEAR OLD GIRL; IS
THAT CORRECT?
A. ACCUSED, YES.
Q. AND IN ADDITION TO MURDER, EVEN OVERTONES OF SEXUAL
RELATIONS BETWEEN MR. SUNDY AND VICTIM; IS THAT CORRECT?
A. YES.
Q. I AM SURE BY THE TIME THE LAKE CITY TRIAL CAME AROUND
YOU'LL WERE AWARE OF THE CONVICTIONS FOR THE MURDERS IN THE
CHI OMEGA CASE?
A. YES.
Q. NOW, YOU YOU WILL WERE PLANNING A WEDDING FOR MR.
BUNDY; IS THAT CORRECT?
A. WHAT?
Q. A WEDDING? -
A. WEDDING.
Q. A WEDDING? '
A. YES, WE ARE WERE PLANNING ON A WEDDING.
24
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KENNEDY - CROSS ~ MENSER
95
oO. YOU BEGAN PLANNING A WEDDING?
A. YES, SIR. I DIDN'T, I WASN'T THE COORDINATOR OF THE
WEDDING, BUT I WAS INVOLVED IN IT.
Q. IS IT YOUR TESTIMONY THAT THE FACT THAT A WOMAN WOULD
MARRY A MAN WITH THESE KINDS OF CONVICTIONS, WOULD HAVE A
POSITIVE IMPACT ON THE JURY?
MS. NELSON: OBJECTION. NO PREDICATE.
THE COURT: SUSTAINED.
BY MR. MENSER: |
°. YOU RECALL YOU TESTIFIED BEFORE THAT MR. BUNDY MADE
SOME JOKES ABOUT SOME PEOPLE IN THE TRIAL?
A. YES, SIR, SOME OF THE CHARACTERS.
Q. THAT INCLUDED COMMENTS ABOUT MR. DEKLE'S SHOES?
A. YES.
Q. YOU WOULD SAY BUNDY HAD PRETTY GOOD POWERS OF
OBSERVATION DURING THE TRIAL, WOULDN'T YOU?
A. THESE, KNOW THAT DID NOT ACTUALLY OCCUR, IF I SAID
THAT THAT WAS WRONG, THESE WERE IN THE PRE-TRIAL
PROCEEDINGS, THE MOTIONS THAT WERE HELD IN THE JUDGES
CHAMBERS, I DON'T RECALL ANY SPECIFIC COMMENTS MADE ABOUT A
PERSONS APPEARANCE IN THE COURTROOM THAT DAY OR DURING THE
DAYS HERE IN ORLANDO, OTHER THAN MAYBE LYNN REGISTER, THE
NICK NAME HE WAS GIVEN.
I MAY NOT HAVE ANSWERED IF QUESTION, I DON'T KNOW.
Oo. THAT'S ALL RIGHT. THE QUESTION CAME UP BEFORE ABOUT
(
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FES | PEEP
BUNDY; IS THAT CORRECT?
KENNEDY - CROSS - MENSER
S36
THE SO CALLED PILLS YOU FOUND IN MR. BUNDY'S LUNCHES? i
A. YES.
Q. YOU HAVE NO PERSONAL KNOWLEDGE THAT ANY PILLS ACTUALLY
GOT THROUGH TO MR. BUNDY, DO YoU?
A. NO, SIR. I DON'T.
Q. YOU SAID YOU, I ASSUME WHEN YOU SAID YOU FELT MR.
BUNDY WAS INTOXICATED BY-- YOU TASTED HIS JUICE AND NOT MR.
A. TASTED THE WHAT? -
Q- THE JUICE AND NOT MR. BUNDY?
A. I HOPE MOST DEFINITELY.
Q. SO THERE WAS SOME JUICE LEFT OVER. DID YOU TASTE IT
BEFORE OR AFTER HE DRANK IT?
A. AFTER I SUSPECTED ALCHOLOL, I THINK IF I AM NOT
MISTAKEN I GAVE IT THE TASTE TEST, AND THERE WAS MORE THAN
ONE CAN IN EACH INCIDENT. AFTER I SMELLED FIRST BECAUSE YOU
KNOW TO SEE IF THERE WAS ANY SMELL, AND IT WAS v-8 JUICE,
LARGE CANS OF V-8, AND.
Q. MR. BUNDY HADN'T DRUNK THE ENTIRE CAN?
A. NO. HE HAD NOT DRANK IT ALL.- A FEW LITTLE NIPPS.
MR. MENSER: NOTHING ELSE, YOUR HONOR. —
THE COURT: ANY REDIRECT?
MS. NELSON: NO, YOUR HONOR.
THE COURT: THANK YOU, SIR. YOU ARE EXCUSED.
;
THE COURT: CALL YOUR NEXT WITNESS.
a
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KENNEDY - CROSS - MENSER
37
MS. NELSON: PETITIONER CALLS MR. LYNN THOMPSON. I
BELIEVE HE MAY BE IN THE JURY WITNESS ROOM. I AM SORRY,
YOUR HONOR. THE WITNESS APPEARS TO HAVE STEPPED AWAY.
THE COURT: CALL ANOTHER WITNESS THEN.
MS. NELSON: OUR WITNESSES ARE ALSo OUT OF THE
COURTROOM AT THIS TIME. JUST AT MOMENT, YOUR HONOR.
LYNN ALAN THOMPSON,
HAVING BEEN DULY SWORN, WAS EXAMINED AND TESTIFIED AS
FOLLOWS:
DIRECT EXAMINATION.
BY MS. NELSON:
Q. MR. THOMPSON, ARE YOU PRESENTLY EMPLOYED?
A. YES. I Am.
Q. WHAT IS YOUR PRESENT EMPLOYMENT?
A. IT AM A PRIVATE PRACTITIONER PRACTICING LAW IN
PRIMARILY LEON COUNTY, FLORIDA.
Q. AND HOW MANY YEARS HAVE SEEN PRACTICING LAW?
A. SINCE "74.
Q. DO YOU KNOW THE PETITIONER MR. BUNDY?
A. YES, I DO.
QO. CAN YOU TELL ME THE CIRCUMSTANCES IN WHICH YOU BECAME
INVOLVED WITH MR. BUNDY?
A. AT THE TIME THAT THE CASE WAS BEING HANDLED THE OFFICE
OF THE PUBLIC DEFENDER I WAS AN ATTORNEY WITH THE FLORIDA
BAR IN THE PROGRAM SECTION. HAD BEEN A FRIEND OF ED HARVIES
24
25
KENNEDY - CROSS — MENSER
38
AND HE WAS ONE OF THE ATTORNEYS WORKING IN THE CASE, AND AS
THE CASE BECAME CLOSE TO TRIAL, WITHIN A MONTH OR SO OF THE
SCHEDULED DATE, IN TALLAHASSEE, I WAS CONTACTED BY ED FOR
THE PURPOSES OF JOINING IN THE DEFENSE FOR MR. BUNDY.
Q. CAN YOU DESCRIBE WHAT YOUR ROLE WAS TO BE IN MR.
BUNDY'S DEFENSE?
A. AS OUTLINED TO ME, I WAS TO PLAY A VERY SIMILIAR ROLE
TO THAT OF MR. REGISTERS IN THE LAKE CITY CASE, WHICH WAS I
' WAS TO BE A BACKGROUND WORKER, PRIMARILY INVOLVED IN”
RESEARCH, MOTION DRAFTING, ARGUMENTS ON VARIOUS PLEADINGS
INVOLVING EVIDENTIARY MATTERS AND THAT'S THE 8ASIS UNDER
WHICH I AGREED TO PARTICIPATE.
Q. AND IN EARLY DAYS OF YOUR PARTICIPATION IN THIS
MATTER, WHAT FREQUENCY OF CONTACT DID YOU HAVE WITH MR.
BUNDY?
AL INITIALLY IT WAS VERY SLIGHT CONTACT. WHAT I WAS
DOING REQUIRED ME TO GO THROUGH TREMENDOUS NUMBER OF POLICE
RECORDS, TRACEING CHARTS, LISTS ABOUT WHICH ABOUT PHYSICAL
EVIDENCE AND THAT REQUIRED MY PRESENCE IN THE OFFICE WHERE
THOSE RECORDS WERE LOCATED, AND I DIDN'T HAVE VERY MUCH
CONTACT WITH TED AT ALL UNTIL RIGHT NEAR THE TIME OF THE
TRIAL BEGAN IN TALLAHASSEE.
QO. I ASK YOU TO DESCRIBE THE TYPE OF PHYSICAL EVIDENCE
FOR WHICH YOU WERE RESPONSIBLE?
AL THERE WERE SEVERAL ITEMS, THE ISSUE OF FINGERPRINTS
METER ae
24
25
KENNEDY - CROSS - MENSER
3g
WAS ONE AREA WHICH WAS OF SIGNIFICANCE; THERE WERE ANALYSIS
RELATING TO HAIR SAMPLES THAT WERE OBTAINED FROM THE
DUNWOODIE APARTMENTS, THERE WERE SERUMOLOGICAL EXAMINATIONS
DONE OF SEMEN SAMPLES TAKEN FROM THE DUNWOODIE RESIDENCE;
SERUM SAMPLES FROM CHEWING GUM TAKEN FROM THE CHI OMEGA
HOUSE RESIDENCE; THERE WERE ISSUES RELATING TO SEVERANCE OF
THE TWO CRIME SCENES, AND THAT WAS SASED SOMEWHAT UPON THE
PHYSICAL EVIDENCE TAKEN FROM THOSE SCENES.
me ‘THERE WERE-MATTERS RELATING TO BITE MARKS WHICH i
HAD A MINOR ROLE IN. THERE WERE KNOTS TIED IN PANTY HOUSE,
THERE WERE QUITE A FEW THINGS OF LESSER NATURE, A TACKING OF
BLOOD AND 8LOCD SAMPLES FROM ONE SCENE TO THE OTHER, WHICH
THERE WAS NEVER ANY CONNECTION MADE 8ETWEEN' IF TWO SCENES,
SUT WERE A LOT OF ITEMS SEIZED THAT WERE 8LOOD STAINED, HAD
TO TRACK WHERE THEY WERE LOCATED, WHO COVERED THEM, AND THE
BLOOD TYPES THAT WERE FOUND ON THOSE ITEMS. THAT'S
PRIMARILY PHYSICAL EVIDENCE PARTS.
Q. YOU DESCRIBED WHAT TYPE OF WORK WAS REQUIRED TO
DEVELOP THE PHYSICAL EVIDENCE AS TO SEROLOGY?
A. THE SEROLOGY MR. BUNDY HAD TAKEN A DEPOSITION OF
RICHARD STEVENS WHO WAS A SEROLOGIST WITH THE FLORIDA
DEPARTMENT OF LAW ENFORCEMENT, AND HE HAD QUESTIONED TO SOME
EXTENT, THE CONCLUSION OF mR. STEVENS THAT THE TESTS THAT HE
HAD CONDUCTED WERE INCONCLUSIVE.
THE METHOD OF EXAMINING THAT THAT I TOOK WAS TO
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KENNEDY ~ CROSS - MENSER
100
TRY TO INDICATE THAT THE TESTS WERE IN FACT CONCLUSIVE, .ON
THE POINT THAT THE SEMEN STAIN AND THE CHEWING GUM
CONTAINING SALIVA WERE THE PRODUCT OF PERSON WHO WAS A NONE
SECRETER, AND THAT'S THE THRUST OF THE EXAMINATION WAS
LOOKING INTO HIS TESTIMONY IN REGARD TO THAT.~
Q. WAS MR. BUNDYS DEPOSITION OF THE SEROLOGY EXPERT
ADEQUATE FOR YOUR PURPOSES?
A.
mt
T IDENTIFIED THE ISSUE, BUT IT DID NOT GO INTO AS
GREAT AS DETAIL AS I PREFERRED TO DO. aa ~
Q. WHAT OTHER QUESTIONS WOULD HAVE BEEN NECESSARY FOR
YOUR INVESTIGATION?
A. WELL, THERE WERE NUMEROUS TESTS INVOLVED, THEY WERE
REPETITIOUS, DONE SIMULTANEOUSLY, AND IT WOULD HAVE REQUIRED
A MORE DETAILED QUESTIONING AS TO THE SPECIFIC RESULTS OF
|
EACH TEST. AND THEN THE FOLLOWING QUESTION! OF MR. STEVENS
AS TO WHY IF ALL THE TESTS WERE THE SAME, AND FOUND
ABSOLUTELY NO INDICATION OF ANY SECRESION WHY HIS CONCLUSION
WAS NOT THE PERSON WAS A NONE SECRETER.
MR. MENSER: WE WOULD LIKE TO OBJECT AS TO
"RELEVANCE. WE ARE NOT HERE AS TO MR. BUNDY'S COMPETENCE AS
AN ATTORNEY.
THE COURT: OVERRULED. ~-
BY MS. NELSON: 7
Q. COULD YOU DESCRIBE MR. BUNDYS APPROACH IN CONDUCTING A
DEPOSITION?
KENNEDY - CROSS - MENSER
101
A. I NEVER OBSERVED HIM AT ANY OF HIS DEPOSITIONS.
QO. DID YOU READ THE DEPOSITION OF MR. STEVENS?
A. YES, I DID.
Q. DID YOU HAVE AN IMPRESSION OF MR. BUNDYS APPROACH?
A. IT WAS NOT THOROUGH, IT WAS NOT COMPLETE.
Q. DID YOUR JOB AT THIS TIME INCLUDE ANALYZING FIBER
EVIDENCE? : _ :
A. NOT SO MUCH IN THE CHI OMEGA CASE, 8ECAUSE THERE WAS
~NO-FRANSFERENCES SHOWN ,--BUT -LATER-IN- THE-LAKE CITY CASE: IT
WAS PRIMARIALLY FOCUSED OF THAT WORK.
Q. AND HAD MR. BUNDY DONE ANY WORK ON THE FIBER EVIDENCE?
A. HE HAD TAKEN SOME DEPOSITIONS, I DON'T RECALL AT THIS
TIME WHAT THE EXTENT OF THOSE WERE, I HAVE NOT GONE BACK AND
READ ANY OF THE DEPOSITIONS OR VIEWED THE TESTIMONY, SO I
DON'T RECALL SPECIFICALLY.
Q- DO YOU RECALL IF THOSE DEPOSITIONS WERE USEFUL TO YOU
IN YOUR OWN INVESTIGATION?
A. I DON'T RECALL THEM BEING USEFUL.
Q. CAN YOU DESCRIBE THE WORK THAT WAS REQUIRED IN
INVESTIGATING THE EVIDENCE AS RELATING TO BLOOD SAMPLES?
A. THERE'S A GOOD DEAL OF READING THE LITERATURE FROM
EXPERTS IN TRYING TO DETERMINE THE SIGNIFICANCE OF THE
DIFFERENCE BETWEEN SECRETERS AND NONE SECRETERS, LEARNING
HOW THE TESTS ARE CONDUCTED, THE METHODS, THE CHECKS, THE
CONTROLS, LEARNING THE LANGUAGE OF WHAT WAS INVOLVED IN
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102
THAT, THERE WAS A GOOD DEAL OF PUBLICATIONS ABOUT THAT TIME,
THE SEROLOGY IS HAS BEEN IS BECOMING A MUCH MORE EXACTING,
OR EXACT PURSUIT, AND IT WAS QUITE COMPLICATED JUST LEARNING
THE LANGUAGE.
Q. DID YOU SEE ANY EVIDENCE THAT MR. BUNDY HAD CONDUCTED
THIS TYPE OF INVESTIGATION IN RESEARCH?
A. HE HAD NO ACCESS TO THOSE TYPE OF MATERIALS, SO I
DON'T SEE HOW HE COULD HAVE DONE THAT.
~~ "MR. MENSER: I OBJECT,-YOUR HONOR. => ~~" - >
THE COURT: SUSTAINED.
MR. MENSER: I WOULD ASK THAT LAST COMMENT BE
STRICKEN. :
THE COURT: IT WILL BE STRICKEN.
MS. NELSON: OUESTION WAS, YOUR HONOR, WAS WHETHER
MR. THOMPSON SAW ANY EVIDENCE OF MR. 8UNDY'S HAVING
CONDUCTED ANY SUCH INVESTIGATION.
THE COURT: QUESTION WAS AS TO ACCESS.
BY MS. NELSON:
Q. MR. THOMPSON, DID YOU SEE ANY EVIDENCE THAT MR. ‘BUNDY
HAD CONDUCTED ANY SUCH INVESTIGATION OR RESEARCH? -
A. I SAW NO PHYSICAL ITEMS, BOOKS, LITERATURE, PAMPHLETS
IN HIS POSSESSION, AND MY REVIEWING OF THE DEPOSITION HE
CONDUCTED DID NOT INDICATE THAT HE WAS FAMILIAR WITH THE
LANGUAGE.
Q. CAN YOU DESCRIBE THE WORK THAT WAS REQUIRED IN
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KENNEDY — CROSS - MENSER
403
ANALYZING THE FINGERPRINT EVIDENCE?
A. IT WOULD BE VERY SIMILIAR, ANY SCIENTIFIC TYPE
TESTIMONY REQUIRES THE SAME TYPE OF PREPARATION, YOU NEED TO
GO THROUGH ALL THE LITERATURE, YOU NEED THE TALK WITH
PERSONS WHO ARE EXPERT IN THAT FIELD, WHO DETERMINE WHAT IS
SIGNIFICANT, WHAT THE ANALYSIS OF FINGERPRINT EVIDENCE
INCLUDES, WHAT CONCLUSIONS CAN BE DRAWN, STRENGTHS AND
WEEKNESSES, THAT'S ALL THE STUDY IS ESSENTIALLY THE SAME IN
EACH OF THESE. CATAGORLES... a Be
Q. DID YOU SEE ANY EVIDENCE THAT MR. BUNDY HAD CONDUCTED
THESE TYPE OF INVESTIGATIONS AS TO THE FINGERPRINT EVIDENCE?
A. T OBSERVED NO LITERATURE, PUBLICATIONS, OR THE LIKE
INVOLVING FINGERPRINT WORK IN HIS POSSESSION.
AND I DIDN'T NOTICE ANY PARTICULAR FAMILIARITY
WITH THE SUBJECT, SOME GENERAL UNDERSTANDING OF WHAT
FINGERPRINTS WERE, AND AS THE QUESTIONING OF EXPERTS
OCCURRED, THERE WAS SOME DISCUSSION ABOUT THE POINTS THAT
WERE RAISED, BUT NOTHING TO INDICATE A WORKING KNOWLEDGE OF
THAT SCIENCE.
Q. WAS THERE ANY PARTICULAR PIECE OF EVIDENCE THAT WAS
RELEVANT TO YOUR CASE REGARDING THE FINGERPRINTS?
- MR. MENSER: I-OBJECT AS TO RELEVANCE, YOUR HONOR.
THE COURT: SUSTAINED.
BY MS. NELSON:
Q. MR. THOMPSON, DID YOU SEE ANY EVIDENCE THAT MR. BUNDY
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KENNEDY — CROSS - MENSER
104
HAD CONDUCTED ANY INQUIRY INTO THE MANNER IN WHICH
FINGERPRINTS WERE COLLECTED AT THE CRIME SITES?
A. No.
Q. DO YOU RECALL THE EVIDENCE THAT WAS COLLECTED AT THE
SITE RELEVANT TO FINGERPRINTS?
A. WHICH SITE ARE WE TALKING ABOUT?
Q. THE CHI OMEGA SITE?
A. YES, I RECALL THAT.
Q. DO YOU RECALL ANY PARTICULAR PIECE OF EVIDENCE-THAT —-
WAS LOST? - '
A. YES, I 00.
Q. WHAT WAS THAT EVIDENCE?
A. THERE WAS A--
MR. MENSER: YOUR HONOR, I DON'T MEAN TO INTERUPT,
IS THIS THE LAKE CITY CASE OR CHI OMEGA.
THE COURT: THIS IS CHI OMEGA CASE. OBJECTION
WILL BE SUSTAINED.
MR. MENSER: THANK YOU, YOUR HONOR.
MS. NELSON: YOUR HONOR, I ASKED THE OUESTION IN
ORDER TO HELP THE COURT EVALUATE MR. BUNDYS ABILITY To
EVALUATE THE EVIDENCE AGAINST HIM.
THE COURT: I UNDERSTAND. SUSTAINED.
BY MS. NELSON: - - - ~ - 7 ~ ~~
Q. MR. THOMPSON, DID YOU BELIEVE THAT TALLAHASSEE WOULD
BE A PROPER VENUE FOR THE TRIAL?
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105
A. I DIDN'T.
QO. DID YOU TAKE ANY ACTIONS TO PREPARE FOR A MOTION FOR
CHANGE OF VENUE?
A. YES, I DID.
Q. CAN YOU DESCRIBE THOSE?
A. THERE HAD BEEN AN ONGOING COLLECTION OF ARTICLES FROM
THE NEWSPAPERS OF GENERAL CIRCULATION IN LEON COUNTY SINCE
THE TIME OF THE HOMICIDES. LATER WE OBTAINED TRANSCRIPTIONS
OF NEWS BROADCASTS, BOTH RADIO AND TELEVISION, OBTAINED SOME
ACTUAL FCOTAGE OF TELEVISION BROAD CASTS, WE CONDUCTED A
SCIENTIFIC SURVEY POLE FOR PURPOSE OF DETERMINING THE AMOUNT
OF INFORMATION AVATLABLE To CITIZENRY OF LEON COUNTY AND
CIRCUIT.
MR. MENSER: YOUR HONOR, IN THE INTEREST OF TIME
m
HERE AGAIN WE ARE NOT ON THE LEON COUNTY CASE. I OBJECT.
THE COURT: SUSTAINED.
MS. NELSON: YOUR HONOR, I AM ATTEMPTING TO PUT IN
CONTEXT CERTAIN STATEMENTS THAT MR. BUNDY MADE TO THE
PSYCHIATRIST THAT EXAMINED HIM AROUND THIS TIME PERIOD
REGARDING CHANGE OF VENUE.
THE COURT: ALL RIGHT.
BY MS. NELSON: - oe ~ 7 - ~
Q. MR. THOMPSON, DID YOU ARGUE A MOTION FOR CHANGE OF
VENUE?
A. SEVERAL TIMES. '
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KENNEDY - CROSS - MENSER
106
Q. WAS MR. BUNDY INFORMED OF THESE EFFORTS FOR CHANGE OF
VENUE?
A. YES, HE WAS.
Q. AND DO YOU RECALL WHEN THESE EFFORTS BEGAN?
A. EFFORTS BEGAN?
Q. EFFORTS TO PREPARE FOR A CHANGE OF MOTION, FOR MOTION
FOR CHANGE OF VENUE 8EGAN? 7
A. IT WAS ALWAYS IN THE PROCESS, BECAUSE THERE WAS A
COLLECTION OF EVIDENCE, SO THAT WAS ALWAYS IN PROCESS.
THERE WAS A LOT OF RESEARCH DONE ON THE LAW RELATING TO
VENUE CHANGES, BOTH IN THE STATE FEDERAL LEVELS, AGAIN
PUBLICATIONS, MODEL RULES, TREMENDOUS AMOUNT OF WORK WENT
INTO THAT.
QO. THANK YOU.
MR. THOMPSON, IT HAS BEEN TESTIFIED TO IN THIS
PROCEEDING THAT THERE WERE NEGOTIATIONS TOWARDS THE PLEA
THAT ENCOMPASSED BOTH CHI OMEGA AND LAKE CITY CASE, WERE YOU
AWARE OF THESE PLEA NEGOTIATIONS?
A. I WAS AWARE OF NEGOTIATIONS.
Q. DID YOU PARTICIPATE IN ANY EXTENT WITH THE PLEA
NEGOTIATIONS?
A. I DIDN'T.
QO. WERE YOU PRESENT AT THE HEARING AT WHICH IT WAS
EXPECTED THAT MR. BUNDY WOULD PROFFER HIS PLEA?
A. I WAS IN THE AREA, I WAS NOT IN THE COURTROOM, PROFFER
KENNEDY - CROSS - MENSER
[ 107
C 1 OF HIS PLEA.
2 Q. IN YOUR OBSERVATION, WHAT WERE THE CONSEQUENCES TO THE
3 DEFENSE TEAM OF THE RESULTS OF THAT HEARING?
4 A. IT WAS SOMEWHAT DEMORALIZING, IT WAS KIND OF A
CONSENSUS OF THE PARTICIPANTS.
5 MR. MENSER: I OBJECT AS TO RELEVANCE. THIS IS NOT
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7 MR. BUNDY. -
8 — THE COURT: SUSTAINED.
~ 3 ~ ~ BY MS. NELSON: ~ 7
10 Q. MR. THOMPSON, DID YOUR ROLE IN THESE MATTERS CHANGE AS
A RESULT OF THE TERMINATION OF THE PLEA NEGOTIATIONS?
Yee
12 A. YES, THEY DID.
4
13 Q. HOW DID YOU'RE ROLE CHANGE?
7 14 A. AS A RESULT OF THE FAILURE OF THE PLEA, MR. MINERVA
15 FELT HE WAS NO LONGER ABLE TO PARTICIPATE REMOVED HIMSELF
3 16 FROM THE CASE, AND ELEVATED MR.. HARVEY TO LEAD COUNSEL, AND_
a V7 ELEVATED ME FROM BACK SEAT THE FRONT OF THE: 8US.
‘ 18 Q- WHAT MANNER DID YOUR OWN ROLE CHANGE IN THE CASE?
=a
d 19 A. WELL, I BECAME A COURTROOM FIGURE RATHER THEN A
20 RESEARCH AND PREPARATION FIGURE.
ad
21 Q. DID YOU HAVE TIME ADEQUATELY TO PREPARE FOR TRIAL?
Ad
nN
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aA. I HAD TIME TO PREPARE VERY WELL FOR ASPECTS OF THE
23 TRIAL, BUT BECAUSE TRIAL--
a
24 MR. MENSER: I OBJECT. WE ARE GETTING INTO THE
25 AREA OF COUNSEL AGAIN. ONCE AGAIN MR. THOMPSON IS ONE OF
1
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KENNEDY — CROSS - MENSER
108
THE ATTORNEYS WHO'S HAS BEEN ACCUSED OF INEFFECTIVEVESS .
THE COURT: OB8JECTION SUSTAINED.
MR. MENSER: I WOULD ASK COUNSEL BE INSTRUCTED TO
NOT KEEP GOING INTO THESE AREA.
THE COURT: YOU ARE SO INSTRUCTED.
BY MS. NELSON:
Q. AFTER MR. MINERVA LEFT THE DEFENSE TEAM, WHO COMPRISED
THE DEFENSE TEAM IN THIS MATTER?
MR. MENSER: OBJECTION AS TO. RELEVANCE, YOUR HONOR.
THE COURT: SUSTAINED.
MS. NELSON: YOUR HONOR, MR. BUNDY’S RELATIONSHIP
WITH HIS DEFENSE TEAM AND MEMBERS OF THAT DEFENSE TEAM ARE
RELEVANT AS TO HIS COMPETENCY.
THE COURT: THAT'S FINE IF YOU WANT TO TALK TO
THIS PARTICULAR WITNESS, BUT WHOEVER ELSE IS INVOLVED IS NOT
RELEVANT TO THESE QUESTIONS.
MS. NELSON: I WAS HOPING TO CLARIFY THE RECORD BY
NAMING THE PARTICIPANTS THAT MAY COME UP. IN LATER
CONVERSATIONS, BUT WE WILL IDENTIFY THEM AS. WE COME To
THEM.
BY MS. NELSON: :
oO. DID FREQUENCY OF YOUR CONTACT WITH MR.-BUNDY CHANGE
AFTER MR. MINERVA LEFT THE CASE?
A. YES, IT DID.
OQ. WHAT MANNER DID IT CHANGE?
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KENNEDY — CROSS — MENSER
109
A. BECAME NECESSARY AT THAT TIME, FOR ME TO SPEND MORE
TIME WITH MR. BUNDY, SO I BEGAN HAVING MORE FREQUENT TRIPS
TO THE JAIL, WHERE HE WAS, ALSO SEE HIM IN COURTROOM
PROCEEDINGS.
Q. WHAT WAS THE SUBSTANCE OF YOUR CONVERSATIONS WITH MR.
BUNDY OUTSIDE OF THE COURTROOM?
AL MOSTLY WERE TO MATTERS EXTRANEOUS TO THE PROCEEDINGS,
A LOT OF PERSONAL DISCUSSIONS RELATING TO LAW SCHOOL,
ATHLETICS, LITERATURE, JUST GENERAL EXPERIENCE OF LIFE,.
NOTHING THAT WOULD PRIMARILY RELATE TO HIS DEFENSE.
°. WAS IT YOUR INTENT, YOUR CONVERSATIONS WITH MR. BUNDY
CONCERNING THESE MATTERS?
A. YES. -
Q. DID YOU EVER ATTEMPT TO TALK TO MR. BUNDY ABOUT THE
EVIDENCE THAT YOU ARE PREPARING FOR TRIAL?
A. WE TALKED A GREAT DEAL IN GENERALITY ABOUT IT. 8UT
SINCE THE MATTERS THAT I WAS CONCERNED WITH INVOLVED
SCIENTIFIC EVIDENCE, AND MR. BUNDY HAVING NO ACCESS TO
MATERIALS, I DIDN'T FEEL THAT HE REALLY HAD.A LOT TO OFFER
IN THE PREPARATION OF THOSE ASPECTS OF THE CASE. SO I
REPORT TO HIM ON WHAT WAS TRANSPIRING, BUT I DIDN'T SEEK
FROM HIM A LOT OF HIS INPUT AS TO WHAT TO DO WITH IT.
Q. DID HE APPEAR -TO YOU TO BE SERIOUS ABOUT THOSE ASPECTS
OF THE CASE?
A. YES.
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KENNEDY - CROSS - MENSER
110
Q. A MATTER OF RECORD THAT A MOTION FOR CHANGE OF VENUE
WAS MADE AND GRANTED IN THE TRIAL MOVED TO MIAMI?
MR. MENSER: OBJECTION. THAT'S THE CHI OMEGA
CASE.
THE COURT: LET'S AT LEAST HEAR WHAT THE QUESTION
Is.
BY MS. NELSON:
Q. IN MIAMI, DID THE LAWYERS HAVE A PLAN FOR VOIR DIRE?
-MR..MENSER: NOW I OBJECT ON-THE BASIS-OF ~~. — =~ -
RELEVANCE.
THE COURT: SUSTAINED.
By MS. NELSON:
Q. MR. THOMPSON, IN YOUR OBSERVATION DID MR. 8UNDY
INTERFERE IN ANY EXTENT WITH THE PLANS OF THE LAWYERS THAT?
MR. MENSER: OBJECTION, YOUR HONOR. THAT'S THE
SAME QUESTION UST.
THE COURT: SUSTAINED. WE ARE NOT HERE ON THAT
CASE.
BY MS. NELSON:
Q. YOUR HONOR, MR. THOMPSON REPRESENTED MR. BUNDY IN BOTH
CASES? 7
- . THE COURT: ASK HIM ABOUT THIS CASE. ~
MS. NELSON: I BELIEVE HIS EXPERIENCE WITH MR.
BUNDY IS RELEVANT AT ALL TIME PERIODS.
BY MS. NELSON:
—_
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KENNEDY - CROSS - MENSER
411
Q. MR. THOMPSON, DO YOU HAVE AN OPINION ABOUT WHETHER MR.
BUNDY DID IN FACT ASSIST YOU IN PREPARING HIS DEFENSE IN THE
CHI OMEGA TRIAL?
MR. MENSER: OBJECTION, YOUR HONOR. SAME
OBJECTION.
THE COURT: SUSTAINED.
MR. MENSER: I ASK COUNSEL BE INSTRUCTED NOT TO
KEEP REFERRING TO THE MIAMI-—
THE COURT: WE-ARE HERE ON THE KIMBERLY LEACH ~~~
TRIAL.
MS. NELSON: THERE WAS SUBSTANTIAL HEARING
TESTIMONY READ REGARDING MR. CHI OMEGA TRIAL. ;
THE COURT: DOESN'T MEAN IT WAS RELEVANT.
MS. NELSON: I BELIEVE IT IS RELEVANT TO A PATTERN
OF BEHAVIOR.
THE COURT: ASK QUESTIONS. I WILL TAKE THEM UP
ONE BY ONE.
MS. NELSON: I AM UNCERTAIN ASOUT THE COURTS RULING
UN.
THE COURT: I WILL EXPLAIN TO YOU 'VERY CLEARLY
THAT THE OPINION FROM THE 11TH eIRcUIT Is VERY SPECIFIC AND
DEALS ONLY WITH EVIDENTIARY HEARING REGARDING THE LAKE CITY
TRIAL. THERE'S GOING TO BE AN EVIDENTIARY HEARING REGARDING
THE CHI OMEGA CASE, SO LET'S NOT GET THEM CONFUSED. LET'S
KEEP THE HEARING TO THE COMPETENCY OF THIS PARTICULAR CASE.
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KENNEDY ~ CROSS - MENSER
MS. NELSON: YOUR HONOR,
I AM ATTEMPTING TO DEVELOP
MR. THOMPSONS OPINION REGARDING MR. BUNDY'S BEHAVIOR IN THE
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LAKE CITY CASE, AND I THINK IT WOULD BE USEFUL TO EXPLORE
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THAT OPINION IN TERMS OF HOW MR. THOMPSON COMPARED MR. BUNDY
IN THE TWO CASES.
THE COURT: IT WOULDN'T BE USEFUL TO ME. I AM
ONLY CONCERNED ABOUT THIS CASE.
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MR. COLEMAN: YOUR HONOR, MAY I ASK A QUESTION,
PLEASE?
THE COURT: NO, SIR. UNDER RULE 5.03, ONLY THE
PERSON CONDUCTING THE QUESTIONING CAN ADDRESS THE COURT.
MR. COLEMAN: THIS IS NOT RELATED TO THE WITNESSES
TESTIMONY.
THE COURT: WELL THEN, WE TAKE IT UP AT A
DIFFERENT TIME THEN.
BY MS. NELSON:
Q. MR. THOMPSON, TURNING TO THE LAKE CITY CASE, WHAT WAS
YOUR ROLE IN THE LAKE CITY CASE?
A. UPON THE CONCLUSION OF THE CHI OMEGA CASE, I THOUGHT
MY PARTICIPATION WAS OVER. I WAS CONTACTED BY VICTOR
AFRICANO AND ASKED TO ASSIST HIM IN THAT CASE. AGAIN, THE
REQUEST WAS THAT i WOULD BE PRIMARILY DEALING WITH PHYSICAL
EVIDENCE RESEARCH, PROTECTING RECORDS AND Nor PRIMARILY OR
SPECIFICALLY NOT THE LEAD COUNSEL IN THAT CASE.
Q. DO YOU HAVE AN OPINION ABOUT THE STRENGTH OF THE
STATE'S EVIDENCE IN THE LAKE CITY CASE?
A. I FELT FROM A PHYSICAL EVIDENCE STANDPOINT IT WAS MUCH
SUPERIOR TO THAT IN THE CHI OMEGA CASE. 7
Q. _ DID YOU_HAVE AN OPINION AS TO WHETHER THE. PLEA THAT
HAD BEEN NEGOTIATED IN THE TWO CASES WOULD HAVE BEEN IN MR.
BUNDY'S BEST INTEREST FOR THE LAKE CITY MATTER?
a f
MR. MENSER: OBJECTION AS TO RELEVANCE, YOUR
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114
HONOR.
THE COURT: OVERRULED.
A. YES, I DO.
Q. WHAT IS THAT OPINION?
A. THAT THAT PLEA, HAD IT BEEN COMPLETED, WOULD HAVE BEEN
IN HIS BEST INTEREST.
Q. MR. THOMPSON, WHAT ROLE DID MR. BUNDY PLAY IN THE LAKE
CITY PROCEEDINGS IN RELATION TO YOU AS HIS COUNSEL?
A. HE DID NOT PARTICIPATE VERY MUCH AT ALL IN THAT CASE.
Q. WHAT WAS THE NATURE OF YOUR CONTACTS, WITH MR. BUNDY?
A. WE WERE TOGETHER IN THE SAME CONFINED AREA A LOT, THE
TRIAL WAS CONDUCTED ON A SECURED FLOOR AND|WE WERE IN A
SECURED ROOM ON THE SECURED FLOOR DURING BREAKS. THE COURT
WOULD BEGIN ROUGHLY EIGHT O'CLOCK IN THE MORNING, WE WOULD
BE THERE AROUND SEVEN O'CLOCK, AND WE'D BE IN CONSTANT
CONTACT THROUGHOUT THE ENTIRE DAY, BUT FOR SOME PERIOD FOR
LUNCH. !
Q. CAN YOU DESCRIBE MR. BUNDY'S CONDUCT?
A. HE MORE THAN ANYTHING ELSE APPEARED TO BE -
DISINTERESTED IN THE PROCEEDINGS.
Q. AND WHAT WAS HE DOING OUTSIDE OF THE COURTROOM?
“IN THE ANTEROOM THAT SERVED AS OUR OFFICE, THERE WAS A
TELEPHONE WHICH WAS, WE HAD A WATS LINE OR SOME SIMILAR TYPE
SERVICE. HE WOULD USE THE PHONE, CALL PEOPLE AROUND THE
COUNTRY. HE WOULD ANSWER THE PHONE IF IT RANG DURING THE
UNITED STATES COURT REPORTER
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TIME A BREAK OCCURRED. THAT'S THE OUTSIDE! OF THE
COURTROOM. TALKED SIGNIFICANT AMOUNT, IN My OPINION, ABOUT
THIS PENDING MARRIAGE CEREMONY TO MISS BOONE. AGAIN, THERE
WERE A LOT OF CONVERSATIONS EXTRANEOUS TO THE PROCEEDINGS
ABOUT RUNNING SHOES AND ATHLETIC EVENTS AND SNOW SKIING AND
LIFE OUT WEST, THAT KIND OF STUFF.
Q. DO YOU RECALL MR. BUNDY ANSWERING THE TELEPHONE?
A. YES, I DO.
MANNER IN WHICH HE ANSWERED THE
Q. DO YOU RECALL THE
TELEPHONE?
A. ONE ANSWER UPON PICKING UP THE RECEIVER WAS BUNDY
DEFENSE TEAM, DEFENDANT SPEAKING. ONE WAS CRISIS CENTER,
SOMETHING LIKE THAT.
Q. WHAT WAS YOUR REACTION TO THIS CONDUCT?
A. I DON'T KNOW IF I HAD A PARTICULAR REACTION TO IT. if
DID NOT FURTHER THE GOALS OF WHAT WE WERE THERE FOR, BUT IT
SEEMED RATHER HARMLESS.
Q. DID MR. BUNDY ASSIST YOU IN PREPARATION FOR THE LAKE
CITY TRIAL?
A. NO.
Q. WAS HE CURIOUS ABOUT THE EVIDENCE IN THE LAKE CITY
TRIAL? ~ -
A. HE SHOWED, AGAIN, VERY LITTLE INTEREST IN THE
PROCEEDINGS. I DON'T KNOW WHETHER HE WAS CURIOUS OR NOT.
HE DID NOT DISPLAY ANY REAL CURIOSITY IN WHAT WAS HAPPENING.
UNITED STATES COURT REPORTER
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Q. DID MR. BUNDY ASSIST YOU DURING THE JURY SELECTION
PHASE OF THE PROCEEDINGS?
A. HE DID NOT ASSIST THAT PROCESS. HE WAS SEATED BESIDE
ME THROUGHOUT THE FIFTEEN DAYS, HOWEVER LONG THAT TOOK.
UPON OCCASION I WOULD TALK TO HIM ABOUT WHETHER HE THOUGHT A
PARTICULAR JUROR WOULD BE SATISFACTORY, BUT AS FAR AS ANY
INPUT INTO HOW TO QUESTION PEOPLE OR WHAT QUESTIONS TO ASK,
HE HAD NO INPUT AT ALL.
Q. WAS MR. BUNDY ENGAGING IN ANY OTHER ACTIVITIES AT THIS
TIME IN THE COURTROOM?
A. HE WOULD FREQUENTLY TAKE IN A FILE FOLDER AND INSIDE
THE FILE FOLDER WOULD BE A MAGAZINE OR SOME OTHER READING
MATERIAL. HE WOULD PERUSE THAT THROUGHOUT THE DAY. WRITE,
I DON'T KNOW WHAT WAS BEING WRITTEN, BUT HE WROTE A LOT.
Q. WAS HE WRITING INFORMATION THAT HE WOULD PASS ON TO
YOU?
A. I DID NOT SEE THE INFORMATION.
Q. DID MR. BUNDY ASSIST YOU ANY DURING THE GUILT PHASE OF
THE PROCEEDINGS?
A. NO.
Q. DO YOU RECALL HIS CONDUCT IN THE COURTROOM AT THIS
TIME? — - 1 -
A. IT WAS VERY SIMILAR. HE HAD SOME CONVERSATIONS WITH
MR. AFRICANO REGARDING THE HYPNOSIS. I THINK HE HAD AN
INTEREST IN THAT. AND IN THE PREPARATION OF THE CLOSING
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ARGUMENT, AGAIN, PRIMARILY WITH MR. AFRICANO.
Q. WHAT DID MR. BUNDY SEEM TO BE DOING IN THE COURTROOM
DURING THESE PROCEEDINGS?
A. HE FIDGETED A LOT. I MEAN HE DIDN'T, SEEM TO HAVE A
GREAT LOT OF INTEREST IN WHAT WAS HAPPENING AT THAT TIME.
WHEN YOU SIT THERE FOR THIRTEEN, FIFTEEN HOURS A DAY, YOU
HAVE TO OCCUPY YOURSELF IN SOME FASHION, BUT HIS TIME WAS
CCUPIED BY THINGS OTHER THAN ASSISTING IN THAT CASE.
Q. CAN YOU RECALL WHAT TYPE OF THINGS THOSE WERE
SPECIFICALLY? ~ . OT
A. IN READING OUTSIDE MATERIALS, WRITING NOTES TO HIMSELF
OR OTHER PEOPLE.
Q. DID HR. BUNDY EVER ACT OUT IN COURT? |
A. YES, HE DID.
Q. WHEN WAS THAT?
A. IT WAS AT THE END OF THE JURY SELECTION PROCESS, THE
INDIVIDUAL WHO ULTIMATELY WAS THE FOREMAN OF THE JURY WAS
BEING PROFFERED BY THE STATE, I THINK, AND TED JUMPED UP AND
RAN AROUND INSIDE THE COURTROOM MAKING STATEMENTS OF A
DEROGATORY NATURE AGAINST THAT INDIVIDUAL PRIMARILY.
Q. WHAT WAS YOUR REACTION TO MR. BUNDY'S CONDUCT?
A. WELL, IT DID NOT PLEASE ME SINCE IT WAS MY OPINION
THAT THAT PERSON WOULD PROBABLY END UP BEING THE FOREMAN OF
THE JURY, SO I WAS QUITE CONCERNED THAT THAT TYPE OF
BEHAVIOR APPEARING TO BE VIOLENT WHERE YOU HAVE A PERSON
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CHARGED WITH VIOLENT ACTS COULD BE A VERY SUBJECTIVE
EMOTIONAL FACTOR OF IMPORTANCE IN THE CASE AND IT DISTURBED
ME CONSIDERABLY.
Q. WHAT WAS DON KENNEDY'S ROLE IN REGARD TO MR. BUNDY?
A. DON PRIMARILY WAS USED IN TRACKING WITNESSES,
OBTAINING STATEMENTS, HAVING PEOPLE AVAILABLE, DOING
INTERVIEWS, RUNNING DOWN PIECES OF PHYSICAL EVIDENCE WITH ME
IN A CHAIN OF CUSTODY TYPE OF ANALYSIS. HIS DIRECT
INVOLVEMENT WITH MR. BUNDY WAS, I SUSPECT, ONE OF OCCUPYING
HIM RATHER THAN WORKING ANY DEVELOPMENT OF THE CASE, BUT
JUST OCCUPYING MR. BUNDY IN CONVERSATION.
' :
Q.. WAS MR. KENNEDY'S ROLE IN THAT REGARD IN OCCUPYING MR.
BUNDY'S ATTENTION USEFUL TO YOU? :
A. IT FREED ME FROM HAVING TO DO THAT SO I COULD WORK ON
WHAT I CONSIDERED THE SIGNIFICANT PARTS OF THE CASE.
Q. OUTSIDE OF THE COURTROOM, DID YOU HAVE AN OPPORTUNITY
TO OBSERVE MR. BUNDY'S MOOD?
A. YES.
Q. AND HOW WOULD YOU DESCRIBE THAT MOOD?
A. WELL, THERE WERE RANGES IN MOOD. THERE WERE MOMENTS
THAT WERE LIGHT HEARTED JOKING. THERE WERE! MOMENTS THAT
-WERE VERY.DRAMATIC IN THE SENSE OF GRIEF, REMORSE,-ARE KIND
OF AS TO WHAT WAS OCCURRING, SO HE HAD A WHOLE RANGE OF
EMOTIONS I WOULD THINK OVER THE PERIOD OF SEVEN OR EIGHT
WEEKS.
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Q. AND WHEN MR. BUNDY WAS IN A TALKATIVE MOOD, HOW WOULD
YOU DESCRIBE HIS CONVERSATIONS?
A. GENERALLY WELL INFORMED. MR. BUNDY READ QUITE A BIT
AND WAS AN ARTICULATE PERSON. HE WAS KNOWLEDGEABLE ON A
NUMBER OF SUBJECTS THAT WERE ALSO OF INTEREST TO ME AND HE
WAS A GOOD CONVERSATIONALIST.
Q. DID YOU EVER DISCUSS OR WERE YOU EVER PRESENT IN ANY
DISCUSSIONS CONCERNING, WITH MR. BUNDY CONCERNING HIS
PSYCHOLOGICAL STATE?
A. CAN YOU LIMIT THAT UNDERSTANDING THE COURT'S PREVIOUS
INSTRUCTIONS?
Q. WERE YOU EVER PRESENT WITH ANY DISCUSSION WITH MR.
BUNDY CONCERNING HIS COMPETENCY TO STAND TRIAL?
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MR. MENSER: OBJECTION, YOUR HONOR. FIKS'I', WE
DON'T KNOW WHICH TRIAL. SECOND, WE DON'T KNOW IF THERE HAS
BEEN ANY QUALIFICATION.
THE COURT: ALL RIGHT. LAY THE PREDICATE, WHEN
YOU'RE TALKING ABOUT.
BY MS. NELSON:
Q. MR. THOMPSON, REGARDING THE LAKE CITY MATTER, WERE YOU
PRESENT AT ANY DISCUSSIONS WITH MR. BUNDY CONCERNING HIS
COMPETENCY TO STAND TRIAL IN THE LAKE CITY MATTER?
A. NO.
Q. WERE YOU EVER PRESENT AT ANY SUCH DICUSSIONS ~~
A. LET ME INTERRUPT YOU. AGAIN, TALKING ABOUT MR. BUNDY
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IS PRESENT.
Q. THAT'S RIGHT.
A. NO, NOT IN HIS PRESENCE.
Q. DID YOU AT ANY OTHER TIME HAVE CONVERSATIONS WITH ANY
PERSON REGARDING MR. BUNDY'S COMPETENCY TO STAND TRIAL IN
THE LAKE CITY MATTER?
A. YES. j
Q. WITH WHOM?
A. MEMBERS OF THE PUBLIC DEFENDER'S OFFICE IN
_
TALLAHASSEE, MIKE MINERVA, ED HARVEY. LAKE CITY CASE, MR.
AFRICANO, TO SOME EXTENT MR. KENNEDY, BUT NOT VERY MUCH. IT
WAS NOT SOMETHING THAT WAS DISCUSSED VERY EXTENSIVELY.
THE COURT: ALL RIGHT. LADIES AND GENTLEMEN,
WE'RE GOING TO RECESS FORK LUNCH All! THIS TIME. PLEASE BE
BACK AT ONE THIRTY.
(LUNCH RECESS.)
UNITED STATES COURT REPORTER
sare
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AFTERNOON SESSION
THE COURT: I BELIEVE WHEN WE LEFT OFF MISS NELSON
WAS IN DIRECT EXAMINATION OF THIS WITNESS. ~
MR. COLEMAN: THAT'S CORRECT, YOUR HONOR. I WANT
TO RAISE A MATTER UNRELATED TO THE WITNESS'S TESTIMONY AT
THIS POINT, IF I CAN.
THE COURT: ALL RIGHT. WHY DON'T YOU RAISE IT
AFTER WE'RE THROUGH WITH THIS WITNESS?
MR. MENSER: YOUR HONOR, WE WANTED TO_NOTE AN
OBJECTION FOR THE RECORD. JUST AS WE BROKE FOR LUNCH THERE
|
WAS A QUESTION AND ANSWER WHICH TAKING NOTES I WAS NOT ABLE
i TO JUMP UP AND OBJECT TO AT THE TIME.
t
MISS NELSON ASKED THE WITNESS IF HE HAD BEEN
CONCURRING OR IF HE HAD CONSULTED WITH THE ATTORNEYS IN THE
CHI OMEGA CASE REGARDING MR. BUNDY'S COMPETENCE TO STAND
TRIAL AND I BELIEVE THAT THE QUESTION AND IF THERE WAS AN
ANSWER ON IT, I DIDN'T HEAR IT, BUT THE QUESTION AND ANSWER
WOULD BE IN CONTRAVENTION OF THIS COURT'S RULING AGAIN ABOUT
THE COURT: ALL RIGHT. THE OBJECTION WILL BE
SUSTAINED.
MR. MENSER: WE WOULD ASK IF THERE IS A QUESTION
AND ANSWER IT COULD BE STRICKEN.
~ THE COURT: IT WILL BE STRICKEN.
MS. NELSON: COULD WE HAVE THE QUESTION READ
WHETHER OR NOT MR. THOMPSON AND MR. AFRICANO WERE COMPETENT. —
UNITED STATES COURT REPORTER
Nees ERIN
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122
BACK. :
(TESTIMONY REFERRED TO READ BACK BY THE REPORTER.
THE COURT: I THINK THAT'S WHEN WE BROKE AND THAT
QUESTION IS ALLOWED. .
MS. NELSON: THANK YOU, YOUR HONOR.
BY MS. NELSON:
Q. MR. THOMPSON, YOU DESCRIBED MR. BUNDY AS READING
MAGAZINES DURING THE LAKE CITY TRIAL? i
A. THAT'S CORRECT.
Q. AND YOU DESCRIBED THOSE MAGAZINES AS 'BEING CONTAINED.
IN FOLDERS? : i
A. THAT'S CORRECT.
f
Q. DO YOU KNOW THE PURPOSE FOR THE FOLDER?
A. If WAS "O DISGULSE HE FACT THAT THEY WERE MAGAZINES
AND HAVE THEM APPEAR TO BE MATTERS RELATING TO WHAT WAS
f
OCCURRING IN THE COURTROOM.
Q. WHY WAS IT NECESSARY TO DISGUISE THE READING MATERIAL?
A. SO OBSERVERS WOULDN'T KNOW WHAT WAS BEING READ.
Q. WAS IT JUROR'S REACTION THAT YOU WERE CONCERNED ABOUT?
A. IN PART. A LOT OF THIS OCCURRED DURING THE VOIR DIRE
PORTION OF THE TRIAL AND CERTAINLY THAT WOULD BE A CONCERN.
Q. SO YOU WERE CONCERNED ABOUT THE couRT's REACTION AS
WELL? - Se =
A. YES. :
Q. EXCUSE ME. ;
UNITED STATES COURT REPORTER
THOMPSON-DIRECT-NELSON
123
1 HOW DID MR. BUNDY'S DEMEANOR DURING THE LAKE CITY
¢ 2 TRIAL COMPARE TO YOUR OTHER CRIMINAL DEFENDANTS?
3 A. THERE IS REALLY NO STANDARD DEFENDANT. THERE IS A
4 TREMENDOUS RANGE IN A PERSON'S ACTIONS DURING TRIALS. MR.
BUNDY IN THAT CASE I THINK WAS UNIQUE IN HIS SEEMING
hialicd
ao ww
DISINTEREST IN THE PROCEEDINGS.
7 Q. MR. THOMPSON, DID YOU EVER SUGGEST TO MR. AFRICANO
8 THAT HE EXPLORE THE ISSUE OF MR. BUNDY'S COMPETENCE TO STAND
wy
~ - 9 TRIAL IN THE LAKE CITY MATTER? = ~~ > ~
10 MR. MENSER: WE'RE GOING TO OBJECT AGAIN. WE'RE
11 GETTING INTO BUSINESS ABOUT WHAT WHETHER WHAT COUNSEL WAS
12 DOING.
|
13 THE COURT: READ BACK THE QUESTION. YOU JUMPED UP
14 BEFORE SHE WAS ABLE TO GIVE THE QUESTION.
15 (QUESTION REFERRED TO WAS READ BACK BY THE
16 REPORTER. ) -
17 THE COURT: OVERRULED.
18 A. WE DISCUSSED AND THERE WAS NO PARTICULAR EFFORT ON MY
19 PART TO ENCOURAGE THAT TO HAPPEN. : — -
20 BY MS. NELSON:
21 Q. WHY DID YOU NOT ENCOURAGE THAT TO HAPPEN?
22) A. A COMPLETE ANSWER TO THAT QUESTION WOULD REQUIRE SOME
= 23 DISCUSSION OF THE CHI OMEGA CASE. BASICALLY I FELT THAT IT
24 COULD HAVE BEEN VERY DISRUPTIVE IN THE PROCEEDINGS IN THE
25 LAKE CITY CASE.
UNITED STATES COURT REPORTER
.
Bet
Q. I'M SORRY?
A. I BELIEVE MR. BUNDY'S REACTION WOULD |HAVE BEEN
NEGATIVE, THAT HE WOULD FORBID THAT TO OCCUR AND COULD LEAD
TO A RIFT BETWEEN MR. AFRICANO, MYSELF AND MR. BUNDY.
Q. DO YOU BELIEVE THAT THERE MIGHT BE GROUNDS TO EXPLORE
THE ISSUE OF BUNDY'S COMPETENCE TO STAND TRIAL IN THE LAKE
CITY CASE? - :
A. YES.
Q. DID MR. AFRICANO PURSUE YOUR SUGGESTION?
wR. MENSER: YOUR HONOR, I HAVE GOT TO OBIECT ON
THE BASIS OF RELEVANCE HERE AGAIN.
THE COURT: OVERRULED.
A. UNDERSTAND IT WAS NOT NECESSARILY A SUGGESTION, IT WAS
A DISCUSSION. THE DISCUSSION WAS NOT ACTED UPON BY MR.
AFRICANO OR HYSELF.
BY MS. NELSON:
Q. DID MR. BUNDY SEEM CONCERNED ABOUT RECEIVING A DEATH
PENALTY IN THE LAKE CITY CASE?
A. NO.
Q. DO YOU KNOW WHAT HE WAS CONCERNED ABOUT IN THE CASE?
A. AS EVENTS APPROACHED, THE HEARING ON THE PENALTY
PHASE, HIS ATTENTION WAS DIRECTED TO THIS MARRIAGE CEREMONY -
TO MISS CAROL BOONE.
Q. TO YOUR KNOWLEDGE, DID MR. BUNDY CONTRIBUTE IN ANY
OTHER WAY TO THE PREPARATIONS FOR THE PENALTY PHASE?
1
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UNITED STATES COURT REPORTER
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A. HE HAD SOME DISCUSSIONS, I BELIEVE, yITH MR. KORIN WHO
WILL TESTIFY LATER. I DO NOT KNOW THE SUBSTANCE OF THOSE
CONVERSATIONS. I DO NOT KNOW OF ANYTHING PARTICULAR THAT HE
DID.
Q. DID MR. BUNDY, IN FACT, MEANINGFULLY ASSIST YOU IN
PREPARING A DEFENSE IN THE LAKE CITY CASE?
A. NO.
Q. DID HE MAKE ANY EFFORT TO ASSIST YOU?
A. HE EAD DONE SOME DEPOSITIONS, I BELIEVE, AND THEY WERE
OF SOME SIGNIFICANCE, BUT THAT WAS WELL BEFORE THE TRIAL ~
BEGAN. DURING THE TRIAL ITSELF FROM THE VOIR DIRE STAGE,
THROUGH EVIDENCE, THROUGH CLOSE, THROUGH PENALTY PHASE,
THERE WAS REALLY NO EFFORT AT ALL.
MS. NELSON: THANK YOU. I HAVE xio FURTHER
QUESTIONS.
CROSS EXAMINATION
BY MR. MENSER:
Q. GOOD AFTERNOON. -
A. GOOD AFTERNOON.
Q. MR. BUNDY WAS ALREADY UNDER A SENTENCE OF DEATH WHEN
THE LAKE CITY TRIAL BEGAN, WASN'T HE?-
A. IN SPITE OF THE COURT'S RULING ON rue! CHT OMEGA CASE,
THE ANSWER IS YES, THERE WAS A SEPARATE CASE THAT DID RESULT
IN AN IMPOSITION OF THE DEATH PENALTY. i
Q. AND MR. BUNDY DID ACCEPT VIC AFRICANO, AS HIS ATTORNEY
UNITED STATES COURT REPORTER
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IN THE LAKE CITY CASE, DIDN'T HE?
A. YES, HE DID.
Q. YOU SAID MR. BUNDY WAS OF NO ASSISTANCE TO YOU DURING
THE GUILT PHASE OF THE TRIAL AT ALL?
A. THAT'S CORRECT.
Q. DIDN'T MR. BUNDY REMIND VIC AFRICANO! TO OBJECT TO
MORRIS' IDENTIFICATION TESTIMONY OF _HIM?
1
A. I DON'T RECALL HIM TALKING TO MR. AFRICANO ABOUT
THAT. VIC MAY RECALL THAT. I HAVE NO RECOLLECTION ON IT.
Q. HOW ABOUT HIS REACTION TO MR. FARHAT: WHO WAS
TESTIFYING, CALLED HIM LIAR?
A. MR. WHO? . . _ eee
Q. FARHAT. AM I SAYING IT CORRECTLY?
A. THIS IS THE HYPTONIST TESTIMONY?
Q. I BELIEVE SO, YES.
A. I WAS NOT INVOLVED IN THAT ASPECT OF TRIAL. THAT MAY
i
HAVE HAPPENED.
Q. HOW ABOUT WHEN MR. HOOKER WAS TESTIFYING, DIDN'T MR.
BUNDY HAVE TO PRY YOU AND VIC TO GET UP AND MAKE A MOTION
FOR A MISTRIAL? :
A. WOULD YOU IDENTIFY THE TESTIMONY SPECIFICALLY.
Q. WELL, WHEN MR. BOOXER MENTIONED THE cut omEca CASE,-. -
THAT WAS INVOLVED IN THE CHI OMEGA CASE, WEREN'T YOU AND MR.
AFRICANO MAKING NOTES AND BUNDY HAD TO POKE YOU AND SAY MOVE
1
FOR A MISTRIAL?
UNITED STATES COURT REPORTER
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127
A. I REMEMBER THERE WAS A MOTION FOR MISTRIAL MADE. I
DON'T RECALL THE SPECIFIC INDIVIDUAL WHO MADE THAT STATEMENT
BY NAME. IT SEEMS LIKE HE DID, HE, TED, DID MAKE SOME WORD
OR GESTURE AT THAT TIME. AGAIN, I DON'T RECALL SPECIFICALLY
WHO THE INDIVIDUAL WAS CONCERNING. '
Q. SO IT'S NOT ACCURATE TO SAY THAT BUNDY WAS JUST
SITTING THERE READING MAGAZINES AND NOT PAYING ATTENTION
DURING THE WHOLE TRIAL, WAS IT?
A. IT'S ACCURATE TO SAY HE DIDN'T PARTICIPATE IN THE
PREPARATION OF THE-CASE I BELIEVE WHAT 7 TH 1 cuestioN WAS. 7
Q. BUT HE DID PAY ATTENTION DURING THE RIAL?
A. HE PAID SOME ATTENTION. |
MR. MENSER: I HAVE NOTHING FURTHER, YOUR HONOR.
THE COURT: ANY REDIRECT?
MS. NELSON: NO, YOUR HONOR, THANK You.
THE COURT: THANK YOU, SIR. YOU MAY STEP DOWN.
ALL RIGHT. MR. COLEMAN, YOU MAY NOW MAKE YOUR
MOTION. :
MR. COLEMAN: YES.
YOUR HONOR, BEFORE WE BROKE FOR LUNCH I TRIED TO
RAISE A MATTER WITH THE COURT cowcERNING 17s RULING DURING
MR. THOMPSON'S TESTIMONY. HE COURT WOULD NOT PERMIT THE
WITNESS TO TESTIFY ABOUT HIS INVOLVEMENT aH MR: BUNDY —-- -
DURING THE CHI OMEGA TRIAL AND HIS OBSERVATIONS AND SO FORTH
CONCERNING ISSUES THAT ARE RELEVANT TO HIS Couprrsncy.
T
UNITED STATES COURT REPORTER
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128
WE HAVE MAINTAINED ALL ALONG THAT THAT EVIDENCE IS
RELEVANT BECAUSE OF THE INTERRELATEDNESS OF THESE TWO
CASES. WE ARGUED THAT IN OCTOBER, ON OCTOBER 22, AND IT WAS
OUR UNDERSTANDING OF THE COURT'S RULING THEN THAT YOU WOULD
PERMIT THAT SORT OF TESTIMONY TO BE OFFERED.
WHAT I WOULD LIKE IS CLARIFICATION OF WHETHER THE
i}
COURT'S RULING NOW IS THAT WE CANNOT PUT ON OUR TESTIMONY
RELATING TO MR. BUNDY'S CONDUCT OTHER THAN AT THE LAKE CITY
_TRIAL BECAUSE THAT AFFECTS OUR WITNESSES, maar AFFECTS OUR,
EXPERT, OR MAY AFFECT OUR EXPERT'S TESTIMONY, AND WE'RE NOT
SURE HOW WE CAN PROCEED IF THAT IS THE COURT'S RULING.
THE COURT: ALL RIGHT. MR. MENSER, ANY REPLY?
MR. MENSER: YOUR HONOR, WE RECEIVED AN ORDER FOR
HEARING FROM THIS COURT, SPECIFICALLY HAD A WRITING ON IT
LAKE CITY CASE ONLY.
IN THE OCTOBER PROCEEDING THERE WAS SOME TESTIMONY
THAT CAME IN REGARDING THE EVENTS SURROUNDING THE CHI OMEGA
CASE, BUT ONLY IN TERMS OF THE JOINT PLEA BARGAIN.
JUSTIFICATION FOR IT AT THE TIME WAS THAT ras WAS A JOINT
PLEA BARGAIN AND THEY ARE SOMEHOW RELATED 0 THE LAKE crty
CASE. WE RESPECTFULLY DISAGREE WITH WHAT COUNSEL SAYS ABOUT
“THE CASES BEING CONNECTED. I WAS IN THE ELEVENTH CIRCUIT
COURT OF APPEALS WHEN MR. COLEMAN TOLD JUDGE GODBOLD THAT
THE TWO TRIALS WERE SIX MONTHS APART AND BUNDY'S COMPETENCE
IN ONE CASE WOULDN'T NECESSARILY RELATE TO THE OTHER CASE
T
UNITED STATES COURT REPORTER
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129
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WHICH HAS BEEN OUR POSITION AS WELL. i
THE COURT: ALL RIGHT. THE COURT IS FAMILIAR WITH
THE LAST HEARING IN WHICH MOST OF THE THRUST OF THAT WAS THE
PLEA BARGAINING AND THE PLEADING LEADING UP TO HIS SUPPOSED
PLEA TO A LIFE SENTENCE.
THE ELEVENTH CIRCUIT WHEN THEY ORIGINALLY SENT
THIS CASE BACK FOR AN EVIDENTIARY-HEARING CONSOLIDATED BOTH
THE CHI OMEGA CASE AND THE LAKE CITY CASE FOR THIS VERY
COMPETENCY HEARING. THE ELEVENTH CIRCUIT IS THE ONE WHO
RETREATED FROM THAT AND SPECIFICALLY STATED THAT THEY WERE
TO BE SEPARATE AND INDEPENDENT SO THAT THIS COURT Is ONLY
RESPONDING TO WHAT THE ELEVENTH CIRCUIT HAS DIRECTED. AND
THEY VERY SPECIFICALLY RETREATED FROM THEIR, PREVIOUS
CONSOLIDATION OF THE CASES, THEREFORE THEY HAVE TO BE
SEPARATE AND APART AND WE CAN ONLY BE CONCERNED WITH THE
COMPETENCY AS OF THE TIME OF THE LAKE CITY CASE BECAUSE
THERE APPARENTLY WILL BE AN INDEPENDENT HEARING ON THE CHI
OMEGA CASE.
MR. COLEMAN: WELL, YOUR HONOR, THE DIFFICULTY IS
THAT THE EVIDENCE ON HIS COMPETENCY IS RELEVANT FOR THE
PERIOD OF HIS INDICTMENT IN BOTH CASES THROUGH HIS
CONVICTION IN THE LAKE CITY CASE.
THE COURT: WELL, WHY THEN DIDN'T) YOU ARGUE FOR
I
CONSOLIDATION?
MR. COLEMAN: WE DID.
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UNITED STATES COURT REPORTER
et
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4
Sf
actaiiainall
ileal
UNLESS THE STATE DECIDES THAT HE IS NOW COMPETENT. THE
THE COURT: YOU STATED THAT THEY WERE SIX MONTHS
APART AND SEPARATE.
MR. COLEMAN: THAT'S NOT TRUE. I STATED AND MR.
MENSER'S RECOLLECTION OF WHAT MY ARGUMENT IS IS A LITTLE
OFF. |
I WAS ASKED A QUESTION ABOUT WHETHER IF MR. BUNDY
WAS COMPETENT, WAS FOUND TO BE COMPETENT IN CHI OMEGA, THAT
THAT WOULD NECESSARILY MEAN THAT HE WAS COMPETENT FOR LAKE
iF
CITY, AND THE ANSWER WAS NO. AND I THINK THAT IS THE
CORRECT ANSWER, THAT IT WOULD NOT.
ON THE OTHER HAND, I SAID THAT IF HE WERE FOUND TO
BE INCOMPETENT DURING CHI OMEGA, THEN THAT WOULD HAVE A
BEARING ON LAKE CITY BECAUSE THE BURDEN THEN SHIFTS. IF HE
WERE INCOMPETENT TO STAND TRIAL AT THE TIME OF THE CHI OMEGA
CASE WHICH PRECEDED LAKE CITY, THEN HE CANNOT BE TRIED
|
BURDEN SHIFTS.
THE COURT: I DON'T WANT TO-TRY TWO SEPARATE CASES
ON COMPETENCY. I'LL RESPOND TO INDIVIDUAL QUESTIONS AS THEY
COME UP, WHETHER THEY'RE REGARDING THE cHI OMEGA CASE. AND
IF IT SOMEHOW DIRECTLY RELATES TO THE LAKE city CASE, I WILL
LET IT IN, BUT IF THE COURT DETERMINES via rr DOES NOT
DIRECTLY RELATE TO THIS CASE, THEN I WILL RULE ON AN
INDIVIDUAL QUESTION BaSIS. So
MR. COLEMAN: ‘THEN, YOUR HONOR, THE PROBLEM IS
i}
UNITED STATES COURT REPORTER
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131
THAT, AS I SAID TO YOU, WE ORIGINALLY WERE! GOING TO READ
INTO EVIDENCE THE DEPOSITION TESTINONY. THE REMAINING
WITNESSES THAT WE HAVE EXCEPT FOR OUR EXPERT -- WELL, EXCEPT
FOR TWO OTHER WITNESSES, OUR EXPERT AND ANOTHER WITNESS, ALL
RELATE TO HIS BEHAVIOR OTHER THAN AT THIS SPECIFIC PERIOD OF
LAKE CITY.
WE HAVE THE THREE WITNESSES WHOSE TESTIMONY WILL
RELATE TO THE PENSACOLA PERIOD. WE HAVE TWO WITNESSES WHOSE
|
TESTIMONY WILL RELATE TO HIS BEHAVIOR IN COLORADO. WE HAVE
ONE WITNESS WHOSE TESTIMONY WILL RELATE TO ‘HIS BEHAVIOR IN
CHI OMEGA. THAT WITNESS WAS A LAW CLERK WHO BASICALLY SAT
WITH MR. BUNDY DURING THE CHI OMEGA TRIAL.
THE COURT: WELL, I FAIL TO SEE THE RELEVANCY OF
“THAT TYPE OF TESTIMONY. WOULD THE STATE LIKE TO RESPOND TO
THAT?
MR. MENSER: YOUR HONOR, THAT wouLD BE OUR PRECISE
CBJECTION TO IT. HE'S GOING BACK ALMOST WHAT, FOUR, FIVE
YEARS, THREE OR FOUR YEARS. -
THE COURT: ALL RIGHT. THE ELEVENTH CIRCUIT HAS
GIVEN THIS COURT SPECIFIC DIRECTIONS. THE COURT IS GOING BY
THOSE DIRECTIONS. WE ARE TESTING THE COMPETENCY OF MR.
BUNDY TO STAND TRIAL AND HIS COMPETENCY TO ASSIST COUNSEL ~
DURING THE LAKE CITY CASE ONLY.
MR. COLEMAN: WELL, YOUR HONOR, THEN WE HAVE ONE
OTHER WITNESS WHOSE TESTIMONY WE CAN PUT ON| TODAY. THE ONLY
i
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UNITED STATES COURT REPORTER
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i
OTHER WITNESS WHOSE TESTIMONY BASED ON THAT RULING WOULD BE
RELEVANT IS OUR PSYCHIATRIST WHO DOES NOT gun TO ORLANDO
UNTIL THIS AFTERNOON. SHE WAS GOING TO BE -- WELL,
ACTUALLY --
THE COURT: ALL RIGHT. WELL, YOU PUT ON WHATEVER
WITNESSES YOU HAVE TODAY, BUT STARTING rouoRnon, AND THIS
GOES FOR BOTH SIDES, BE PREPARED WITH YOUR WITNESSES TO GO
, I
PAST FIVE O'CLOCK EVERY DAY THiS WEEK.
_ ; MR. COLEMAN: IF YOUR HONOR'S RULING IS THAT WE
CAN onty PUT ON TESTIMONY ABOUT LAKE criy, HEN TOMORROW OUR
ONLY WITNESS WILL BE OUR PSYCHIATRIST.
THE COURT: AND THEN YOU WILL BE READY TO REST?
MR. COLEMAN: THAT'S CORRECT.
THE COURT: ALL RIGHT.
MR. COLEMAN: I WOULD ALSO AT THAT TIME, AND WE
CAN DO THIS ORALLY OR WE CAN DO IT IN WRITING, I WOULD ALSO
LIKE TO MAKE A PROFFER OF WHAT THE PESTIMONY OF THE OTHER
WITNESSES WOULD BE. THE TESTIMONY DOES NOT RELATE TO THE
LAKE CITY TRIAL.
THE COURT: WELL, THIS IS JUST, THAT'S UP TO THE
ELEVENTH CIRCUIT. THEY'RE THE ONES THAT GAVE THE DIRECTIONS
HERE. THEY UNCONSOLIDATED THE CASE AND I'M JUST FOLLOWING
THEIR ORDERS.
MR. COLEMAN: WELL, WOULD THE couRT PERMIT US TO
MAKE A PROFFER EITHER ORALLY OR IN WRITING?) WHATEVER THE
UNITED STATES COURT REPORTER
24
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133
COURT PREFERS.
THE COURT: I CAN'T TELL YOU WHAT TO PROFFER. YOU
CAN PROFFER WHATEVER YOU WANT. PUT INTO WRITING, THAT'S NOT
FOR ME, THAT'S FOR A DIFFERENT COURT.
MR. COLEMAN: THAT'S MY POINT. DO WE HAVE
_—
PERMISSION TO MAKE A PROFFER IN WRITING?
THE COURT: ABSOLUTELY.
MR. COLEMAN: THANK YOU. THEN, YOUR HONOR, THE
NEXT WITNESS AND LAST WITNESS THAT WE'LL CALL TODAY IS MIRE
KORIN. :
WHEREUPON:
MICHAEL KORIN,
|
CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN FIRST DULY
f
SWORN ACCORDING TO LAW, TESTIFIED AS FOLLOWS:
DIRECT EXAMINATION
BY MR. MR. COLEMAN:
Q. MR. KORIN, WOULD YOU STATE YOUR FULL NAME FOR THE
i
RECORD, PLEASE? _t
A. MICHAEL KORIN, KORIN.
CAN YOU TELL ME WHERE YOU ARE CURRENTLY EMPLOYED?
Q.
A. I'M ASSISTANT PUBLIC DEFENDER IN SECOND JUDICIAL
CIRCUIT, TALLAHASSEE, FLORIDA. ~ oo
Q. IN 1979 AND 1980 CAN YOU TELL ME WHERE YOU WERE
EMPLOYED?
aA. THE LATTER PART OF '79 AND 1980 I WAS| ALSO IN THE
UNITED STATES COURT REPORTER
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PUBLIC DEFENDER'S OFFICE IN TALLAHASSEE, FLORIDA.
Q. HAVE YOU IN YOUR CAREER BEEN EMPLOYED AS ASSISTANT
STATE ATTORNEY?
A. I WAS ASSISTANT ATTORNEY GENERAL.
Q. SORRY.
A. FROM 1971 TILL DECEMBER OF 1975.
Q. NOW, DO YOU KNOW THE PETITIONER IN vars CASE, MR.
BUNDY?
A. YES, I DO.
Q. AND CAN YOU TELL ME THE CIRCUMSTANCES UNDER WHICH YOU
CAME TO KNOW HIM?
A. IN MID 1979 I HAD BEEN WORKING AS ASSISTANT FEDERAL
PUBLIC DEFENDER AND WENT BACK TO WORK IN THE STATE PUBLIC
DEFENDER'S OFFICE. LYNN THOMPSON, WHO WAS WORKING ON MR.
BUNDY'S CASE, IS A FRIEND OF MINE WHO I HAD WORKED WITH OVER
THE YEARS. AS I RECALL, SOMETIME PROBABLY ‘IN LATE DECEMBER
OF '79 OR I RECALL 1980 LYNN ASKED ME IF I WOULD ASSIST HIM
AND MR. AFRICANO IN MR. BUNDY'S LAKE. CITY CASE. AND
ESSENTIALLY WHAT THEY WANTED ME FOR WAS, I THINK, WAS
i
BECAUSE AT THE TIME I WAS DOING NOTHING BUT CAPITAL APPEALS
AND PRESUMABLY WAS MORE CURRENT ON CASE LAW THAN EITHER MR.
AFRICANO OR MR. THOMPSON. AND THERE; AS SPECIFICALLY - _
GETTING INVOLVED IN THE CASE, IT WAS PROBABLY THROUGH LYNN,
AND THEN I MET MR. BUNDY WHEN I AGREED TO DO THAT.
Q. NOW, YOU'VE REFERRED TO MR. THOMPSON AND YOU REFER TO
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UNITED STATES COURT REPORTER
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135
LYNN. IS THAT A REFERENCE TO LYNN THOMPSON?
A. YES, IT Is.
Q. AND AT THE TIME HE WAS REPRESENTING &R. BUNDY?
A. HE WAS WORKING WITH MR. AFRICANO REPRESENTING MR.
BUNDY.
Q. NOW, DO YOU RECALL WHEN HE FIRST APPROACHED YOU ABOUT
ASSISTING IN THE PENALTY PHASE? |
A. SPECIFICALLY I CANNOT RECALL. I can, MY SPECIFIC
|
RECOLLECTION WAS THAT IT WAS PROBABLY IN LATE DECEMBER OF
"79 OR JANUARY OF 1980, BUT THAT I DID NOT| COME TO ORLANDO
UNTIL I BELIEVE IT WAS THE SUNDAY BEFORE THE VERDICT AS TO
i
GUILT. I CAME DOWN AND MET MR. AFRICANO AT THAT TIME AND
MR. KENNEDY AND I DID GO TO THE COURTHOUSE, BUT I DID NOT GO
INTO THE COURTROOM. I RECALL OBSERVING 7 PROCEEDINGS IN
THE MEDIA ROOM AND I DON'T BELIEVE I EVEN Mer MR. BUNDY AT
THAT TIME.
I THEN WENT BACK TO TALLAHASSEE AND THE FRIDAY
BEFORE THE SATURDAY COMMENCEMENT OF THE PENALTY PHASE I CAME
BACK TO ORLANDO AND AT THAT TIME MET MR. BUNDY.
Q. NOW, YOU SAY @HE FRIDAY BEFORE THE PENALTY PHASE, WAS
THAT BEFORE OR AFTER HE HAD BEEN convicrep |r LAKE CITY?
A. IT WAS THE FRIDAY APTER THE GUILTY VERDICT WAS IN THE
LAKE CITY TRIAL IN ORLANDO.
Q. CAN YOU TELL ME WHEN THE PENALTY PHASE WAS TO BEGIN?
A. AS I RECALL, IT BEGAN SATURDAY MORNING.
i
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UNITED STATES COURT REPORTER
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Q. THE NEXT DAY?
A. YES, SIR.
Q. NOW, CAN YOU TELL ME WHAT YOU HAD DONE TO PREPARE FOR
I
THE PENALTY PHASE AT THE TIME THAT YOU ARRIVED ON FRIDAY?
A. IN TERMS OF EVIDENTIARY MATTERS AND TESTIMONY MATTERS,
i
NOTHING. WHAT I HAD DONE WAS PREPARE SOME JURY INSTRUCTIONS
AND SOME OUTLINES AS TO CLOSING ARGUMENT.
Q. HAD YOU DISCUSSED EVIDENCE THAT YOU WOULD OFFER IN THE
PENALTY PHASE WITH THE ATTORNEYS REPRESENTING MR. BUNDY?
A. NO, SIR.
MR. MENSER: YOUR HONOR, I'M GoINe TO OBJECT TO
THIS POINT, HEREAGAIN WE'RE GETTING INTO WHETHER THE
ATTORNEYS PREPARED FOR THE SENTENCING PHASE.
MR. COLEMAN: WELL, THIS HAS TO Do WITH MR.
BUNDY'S ATTITUDES IN THE PENALTY PHASE.
'
MR. MENSER: YOUR HONOR, HE CAN ASK ABOUT BUNDY'S
ATTITUDE, BUT NOT WHETHER OR NOT WHAT THE LAWYERS HAD
i
OFFERED OF BRINGING IN EVIDENCE. THAT'S DIFFERENT.
|
THE COURT: ALL RIGHT. I'LL ALLOW THE QUESTION.
i
OVERRULED -
(PENDING QUESTION READ BACK BY THE REPORTER.)
A. NO I BAD NOT. . -aebe
BY MR. COLEMAN:
Q. NOW, YOU SAID THAT YOU ARRIVED IN ORLANDO ON THE
:
FRIDAY BEFORE THE PENALTY PHASE WAS TO BEGIN. CAN YOU TELL
i
UNITED STATES COURT REPORTER
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HU ALWiNSC I Conan
ME WHAT TIME OF THE DAY YOU ARRIVED?
A. IT WOULD HAVE BEEN IN THE AFTERNOON, PROBABLY LATE
AFTERNOON OR EARLY EVENING. I HAD HAD AN ARGUMENT IN THE
FLORIDA SUPREME COURT THAT MORNING AND Was! NOT ABLE TO LEAVE
|
UNTIL THE AFTERNOON. :
Q. AND WHEN YOU ARRIVED IN ORLANDO, DID) YOU MEET WITH MR.
THOMPSON OR MR. AFRICANO? '
A. I DON'T RECALL MEETING EITHER MR. AFRICANO OR MR.
i
. THOMPSON. MY RECOLLECTION IS -THAT MR, -KENNEDY PICKED-ME UP
AT THE AIRPORT.
Q. DID YOU MEET WITH MR. BUNDY?
A. YES, SIR. THAT'S WHERE MR. KENNEDY 700% ME TO, WHERE
MR. BUNDY WAS. :
Q. AND DID YOU DISCUSS WITH MR. BUNDY TEE PENALTY PHASE
.
OF HIS TRIAL?
A. YES, SIR. Hl
I
Q. CAN YOU TELL ME WHAT THE SUBSTANCE OF THAT DISCUSSION
WAS?
A. WELL, I CAN TELL YOU THAT WHEN MR. KENNEDY PICKED ME
UP AT THE AIRPORT HE ACTED SORT OF LIKE THE CAT THAT ATE THE
|
CANARY AND LIKE THERE WAS SOMETHING UP. AND WHEN I ASKED
HIM WELL, WHAT IS GOING ON, HE INDICATED WELL, YOU'LL HAVE
TO TALK TO TED OR VIC OR LYNW.
f
I THEN RECALL WHEN I MET WITH MR.) BUNDY, I ASKED
HIM ABOUT ANY WITNESSES HE WANTED TO CALL AT THE PENALTY
i
UNITED STATES COURT REPORTER
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KORIN-DIRECT-COLEMAN
'
PHASE, IF THERE WERE ANY, AND AT THAT TIME HE INDICATED THAT
HE DESIRED TO CALL CAROL BOONE.
i
Q. AND DID HE TELL YOU WHY HE WANTED TO) CALL MISS BOONE?
A. MY RECOLLECTION IS UNCLEAR AS TO WHETHER HE WOULD
|
SPECIFICALLY TELL ME WHY HE WANTED TO CALL HER. I WANT TO
BELIEVE THAT HE DIDN'T TELL ME EXACTLY WHY AND THAT I DID
- - |
NOT FIND OUT WHY HE WANTED TO CALL HER UNTIL I HAD
|
THEREAFTER SEEN MR. THOMPSON AND MR. AFRICANO.
|
Q. NOW, YOU SAY YOU WANT TO BELIEVE THAT. WHY DO YOU
WANT TO BELIEVE THAT?
A. BECAUSE AT ONE POINT I WAS VERY, I GUESS, UPSET. I
|
FELT DUPED I GUESS IS THE WAY TO -- YOU KNOW, IT WAS NOT THE
TYPE OF THING THAT -- I WOULD NOT, I WOULDN'T WANT TO
INTENTIONALLY PARTICIPATE IN SOMETHING LIKE THAT.
Q. AND WHAT IS THE SOMETHING LIKE THAT THAT YOU REFER TO?
|
A. THE MARRIAGE. \
Q. NOW, WHAT DID YOU KNOW ABOUT THE MARRIAGE?
|
A. WELL, THAT'S WHAT I DON'T REMEMBER IF I, IF IT WAS MR.
BUNDY THAT THE PURPOSE WAS, ONE OF THE PURPOSES WAS TO GET
MARRIED OR WHETHER I ULTIMATELY FOUND THAT OUT FROM MR.
AFRICANO AND MR. THOMPSON.
Q. DID MR. BUNDY INDICATE TO YOU ANY OmHER REASON FOR
i
CALLING MISS BOONE?
A. I PROBABLY MADE INQUIRY OF HIM AS TO WHETHER SHE WOULD
!
BE ABLE TO TESTIFY AS TO, YOU KNOW, HIS CHARACTER AND SAY
UNITED STATES COURT REPORTER
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139
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SOME NICE THINGS OR GOOD THINGS ABOUT HIM, AND OF COURSE, MY
RECOLLECTION IS SHE DID, IN ADDITION TO THE OTHER SITUATION.
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Q. DID MR. BUNDY PROVIDE YOU WITH OTHER INFORMATION THAT
COULD BE USED AT THE PENALTY PHASE?
A. NO, SIR.
Q. DID HE IDENTIFY OTHER WITNESSES WHO counp BE CALLED?
A. YOUR OFFICE HAD PROVIDED ME WITH A TRANSCRIPT OF THE
PENALTY PHASE PROCEEDINGS AND IN REVIEWING THAT I'VE NOTED
|
THAT MR. BUNDY, WE HAD REQUESTED THE CONTINUANCE ON OF THE
SATURDAY MORNINGS PRIOR TO THE COMMENCEMENT OF THE PENALTY
PHASE. MR. BUNDY HAD URGED TO THE COURT THAT THERE SHOULD
BE A CONTINUANCE BECAUSE HE HAD TRIED TO GET A HOLD OF.
MILLARD FARMER THE NIGHT BEFORE, PRESUMABLY FOR SOME PURPOSE
TO GIVE TESTIMONY AT THE PENALTY PHASE, BUT AS TO WHAT THAT
PURPOSE OF HIS TESTIMONY WAS, I DON'T INDEPENDENTLY REMEMBER
THAT. AND I DON'T REMEMBER MR. BUNDY TELLING ME THAT HE
WANTED TO CALL MR. FARMER.
Q. DID MR. BUNDY TELL YOU ANYTHING ABOUT EITHER WHAT HE
WANTED TO ACCOMPLISH AT THE PENALTY PHASE OR WHAT COULD
ASSIST YOU TO ASSIST HIM AT THE PENALTY PHASE?
A. NOT REALLY.
Q. WHAT WAS YOUR REACTION WHEN YOU DISCOVERED THAT MR.
BUNDY INTENDED TO GET MARRIED AT THE PENALTY PHASE?
A. WELL, HE WAS LIKE CO-COUNSEL, SO I WOULDN'T HAVE
i
ANYTHING TO DO WITH CALLING HER AS A WITNESS, HE CALLED
f
i
UNITED STATES COURT REPORTER
T |
: . i
i HER. OF COURSE, IT WOULDN'T HAVE DONE ANY! GOOD FOR ME TO
C 2 HAVE CALLED HER AS A WITNESS IF THE PURPOSE WAS TO EXCHANGE
i j
3} VOWS. I WASN'T ABOUT TO EXCHANGE VOWS WITH HER, SO -- i
|
4) 9. DID You DISCUSS YOUR -- I THINK YOU TESTIFIED BARLTER |
_ 5 | THAT YOU FELT DUPED?
a 6| A. YES, SIR. |
‘ 7| Q. DID YOU DISCUSS THAT WITH THE OTHER ATTORNEYS IN THE -
8 | CASE? | i
Ke}
>
I'M SURE I EXPRESSED MY -- WELL, I WASN'T A HAPPY i
10 CAMPER, THAT'S THE ONLY WAY I CAN PUT IT AT THAT TIME. ~
11 Q. CAN YOU TELL ME WHAT ASSISTANCE THE OTHER LAWYERS IN
|
12 THE CASE GAVE YOU TO PUT ON EVIDENCE IN THE PENALTY PHASE?
be
w
AR. HENSER: I'LL OBJECT TO THAT |QUESTION, . YOUR
~ 14 HONOR, ON THE GROUND OF RELEVANCE. WE'RE NOT HERE TO TALK
| H
~ 15 ABOUT THE LAWYERS. |
|
!
TH
ty
COURT: SUSTAINED.
Acie
i
con
17 BY MR. COLEMAN:
j
id
i
18 Q. DID THE LAWYERS PROVIDE YOU-WITH ANY EVIDENCE?
wos
fod
©
MR. MENSER: CBJECTION, YOUR HONOR, THAT'S THE
20 SAME THING HE JUST ASKED.
21 THE COURT: SUSTAINED.
|
= i
: 22 | BY MR. COLEMAN:
: |
23) Q. WERE YOU AWARE OF PSYCHIATRIC REPORTS THAT HAD BEEN —
24 PREPARED ON MR. BUNDY?
25 A. NO, SIR.
UNITED STATES COURT REPORTER
SE REPANE I
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fon)
0
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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! 141
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Q. DID YOU EVER DISCUSS PSYCHIATRIC REPORTS ABOUT MR.
BUNDY WITH MR. BUNDY? l
A. NO, SIR.
Q. CAN YOU TELL ME WHAT APPEARED TO BE MR. BUNDY'S
ATTITUDE ABOUT THE PENALTY PHASE? H
|
A. HE WAS VERY INTERESTED IN CALLING MISS BOONE. I DON'T
|
RECALL ANY PARTICIPATION BY MR. BUNDY IN MY PREPARATION OF
ANY JURY INSTRUCTIONS OR LEGAL ARGUMENTS THAT I WOULD BE
MAKING IN HIS BEHALF. i
Q. DID HE SHOW ANY CONCERN ABOUT THE DEATH PENALTY?
A. NO, SIR. i
j-
Q. NOW, DURING THE TIME THAT YOU WERE IN ORLANDO, AND I
THINK YOU SAID YOU ARRIVED ON FRIDAY BEFORE THE PENALTY
PHASE, IS THAT CORRECT? 1
i
A. YES, SiR. THAT WAS THE SECOND TIME I HAD COME. I HAD
|
BEEN HERE FOR MAYBE TWENTY FOUR HOURS THE SUNDAY AND MONDAY
|
PRIOR TO THAT, BUT THAT WAS THE SECOND TIME, YES.
i
Q. WAS THERE A DISCUSSION AMONG THE LAWYERS ABOUT MR.
BUNDY USING ALCOHOL? i -
MR. MENSER: YOUR HONOR, I'LL OBJECT IN TERMS OF
RELEVANCE. : i
- - THE COURT: OVERRULED. mo
A. YES, SIR.
|
Q. AND WHAT DO YOU RECALL OF THE DISCUSSION?
A. I RECALL --
UNITED STATES COURT REPORTER
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25
142
MR. MENSER: EXCUSE ME, YOUR HONOR. I'LL OBJECT
AGAIN. I HATE TO KEEP JUMPING UP. NOW WE'RE GETTING INTO
HEARSAY.
THE COURT: OVERRULED. :
A. I RECALL THAT THERE WAS DISCUSSION aS TO MR. --
THE COURT: NOW, IN THIS DISCUSSION, IS MR. BUNDY
PRESENT DURING THIS DISCUSSION? _
A. NO, SIR.
THE COURT: ALL RIGHT. THE OBJECTION WILL BE
f
SUSTAINED. I THOUGHT MR. BUNDY WAS PRESENT.
BY MR. COLEMAN:
i
Q. DID YOU HAVE AN UNDERSTANDING ABOUT WHETHER MR. BUNDY
WAS RECEIVING ALCOHOL? ‘
A. YES, SIR.
Q. AND WHAT WAS YOUR UNDERSTANDING?
A. THAT HE HAD BEEN. |
Q. AND DO YOU HAVE ANY UNDERSTANDING OR KNOWLEDGE OF HOW
HE WAS RECEIVING IT?
A. THROUGH JUICE CANS WITH PEEL BACK TOPS.
Q. AND DID YOU OBSERVE WHETHER MR. BUNDY WAS RECEIVING
THOSE KINDS OF JUICE CANS DURING A TIME PEAT YOU WERE IN
ORLANDO?.. a
|
A. MY RECOLLECTION IS THAT THEY WERE THOSE TYPES OF JUICE
|
CANS IN THE DEFENSE OFFICES AT THAT TIME.
j -
MR. MENSER: YOUR HONOR, I HAVE TO OBJECT. TI
UNITED STATES COURT REPORTER
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|
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| 143
DON'T BELIEVE THAT'S RESPONSIVE. WHAT'S my THE DEFENSE
OFFICE ISN'T WHAT MR. BUNDY WAS RECEIVING.
THE COURT: OVERRULED.
BY MR. COLEMAN:
Q. MR. KORIN, CAN YOU TELL ME WHAT YOU ACTUALLY DID AT
THE PENALTY PHASE, WHAT YOU PERSONALLY ACTUALLY DID?
A. PRETTY MUCH JURY INSTRUCTIONS, MADE A LEGAL ARGUMENT
i
DIRECTED TOWARD THE PRECLUDING THE DEATH PENALTY BASED UPON
THE PRIOR PLEA NEGOTIATION, AND I MADE A cuosiNe ARGUMENT
AND I BELIEVE I MAY HAVE CROSS EXAMINED -- |I THINK THERE
WERE ONLY THREE WITNESSES CALLED BY MR. BLAIR FOR THE
|
STATE. I THINK MR. SIMPSON AND TWO OTHERS.) I, YOU KNOW,
OBJECTED TO CERTAIN PARTS OF THEIR TSSTINONY, I RECALL, AND
MADE THE ANALOGOUS MOTIONS SAY FOR JUDGMENT OF ACQUITTAL AS
i
TO AGGRAVATING CIRCUMSTANCES.
AGAIN, THE CHARGE CONFERENCE, AND THEN ULTIMATELY
AT THE ACTUAL SENTENCING I THINK I RENEWED SOME ARGUMENTS
DIRECTED TOWARD DOUBLING UNNECESSARY uTPICAPING FACTORS, BUT
I HAD MADE ONE CLOSING ARGUMENT.
Q. CAN YOU TELL ME HOW MANY WITNESSES WERE CALLED ON MR.
BUNDY'S BEHALF AT THE PENALTY PHASE? : |
i
A. MISS BOONE WAS THE ONLY ONE.
Q. AND WHO HANDLED THE QUESTIONING OF MISS BOONE?
A. MR. BUNDY. ;
Q. AND CAN YOU TELL ME WHAT MR. BUNDY DID AT THE PENALTY
- UNITED STATES COURT REPORTER
Bry?
SA
24
25
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PHASE? |
A. IN TERMS OF THE DIRECT EXAMINATION OF MISS BOONE, HE
|
DID THAT. HE ALSO DID SOME REDIRECT OF HER AND HE ALSO MADE
A CLOSING ARGUMENT. |
Q. AND IN THE COURSE OF THE -- WELL, LET ME ASK YOU, WHEN
i
DID HE GET MARRIED? i
|
A. WELL, I DON'T KNOW THAT HE IS, BUT, I MEAN AS TO MY
\
KNOWLEDGE. SEE, I DON'T KNOW, MY UNDERSTANDING OF THE
|
SITUATION WAS IS THAT THEY HAD SOMEHOW OBTAINED A MARRIAGE
woe wee ee a oo
LICENSE, THEY HAD GOTTEN BLOOD TESTS AND THAT THERE WAS A
NOTARY IN THE COURTROOM. NOW, WHETHER THERE WAS A NOTARY IN
THE COURTROOM THAT OBSERVED WHAT PURPORTED |T0 BE AN EXCHANGE
OF VOWS, I DON'T xNOW. |
BUY AS MY RECOLLECTION IS THAT WHEN MR. BUNDY WAS
ON DIRECT EXAMINATION OF MISS BOONE, THEY TALKED ABOUT
SEVERAL THINGS AND I THINK THE QUESTION WAS WELL, DO YoU
WANT TO MARRY ME, AND I THINK THE ANSWER WAS YES. DO I WANT
TO MARRY YOU, AND I THINK THE ANSWER WAS YES. THEN I RECALL
I THINK HE SAT DOWN AND, IF I'M NOT MISTAKEN, MR. AFRICANO
SAID WELL, OR WHISPERED OR WROTE ON THE PAD, WELL, YOU _
DIDN'T DO IT RIGHT, YOU'RE NOT MARRIED, UNDER THE NOTION
THAT THERE WAS NOT A PRESENT EXCHANGE OF vous. so-My-
|
RECOLLECTION IS THAT ON REDIRECT THE QUESTION WAS CAROL,
i
WILL YOU MARRY ME, AND SHE GAVE THE PROPER ANSWER.
NOW, AS TO WHETHER THAT'S A LEGAL! MARRIAGE OR
UNITED STATES COURT REPORTER
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eer
KORIN-CROSS-MENSER
145
WHETHER THERE WAS A NOTARY IN THE COURTROOM, I DON'T KNOW.
Q. NOW, AS BETWEEN THE MARRIAGE AND AVOIDING THE DEATH
PENALTY, CAN YOU TELL ME WHAT WAS MR. BUNDY'S CONCERN?
A. MARRIAGE. MR. BLAIR I THINK IN HIS CLOSING ARGUMENT
REFERRED TO IT AS A VALENTINE'S DAY CHARADE.
Q. AND DO YOU HAVE AN OPINION OF THE IMpacr OF THE
MARRIAGE CEREMONY IN A PENALTY PHASE OF A DEATH PENALTY
CASE?
AL VERY PLTIPUL. oo —_ : : -
MR. COLEMAN: I HAVE NO FURTHER QUESTIONS, YOUR
i}
HONOR.
CROSS EXAMINATION |
BY MR. MENSER: |
Q. GOOD AFTERNOON.
MR. BUNDY WAS ALREADY UNDER SENTENCE OF DEATH WHEN
THE LAKE CITY CASE CAME TO TRIAL, WASN'T HE?
A. YES, SIR.
MR. MENSER: OKAY. I HAVE NOTHING FURTHER.
THE COURT: ANY REDIRECT?
MR. COLEMAN: I HAVE NO ‘REDIRECT, YOUR HONOR.
THE COURT: THANK YOU, SiR. YOU'RE EXCUSED.
MR. COLEMAN: MAY WE APPROACH THE) BENCH?
(BENCH CONFERENCE ON THE RECORD.) |
MR. COLEMAN: I WOULD LIKE TO GIVE THE COURT THE
DEPOSITION OF DR. EMANUEL TANAY AND WE HAVE) GIVEN A COPY OF
|
UNITED STATES COURT REPORTER
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“THE PROFFER FEELS THERE IS SOMETHING GERMANE TO THE LAKE
. |
146
THE DEPOSITION TO MR. MENSER AND THIS IS IN LIEU OF CALLING
HIM AS A WITNESS.
YOUR HONOR, THE ONLY OTHER wroweds WE HAVE IS DR.
|
DOROTHY LEWIS WHO IS OUR EXPERT AND WE'LL CALL HER FIRST
THING TOMORROW MORNING.
|
THE COURT: SO YOU HAVE NOTHING FURTHER AT THIS
i
TIME.
MR. COLEMAN: WE HAVE NOTHING FURTHER AT THIS
TIME. :
MR. MENSER: SORRY I MISSED A LITTLE PART OF THAT
LAST EXCHANGE. THE AGREEMENT WE HAD WITH COUNSEL WAS THAT
|
TANAY'S DEPOSITION WOULD COME IN IN LIEU OF, TESTIMONY AND SO
ANT WE WANTED TO GO AHEAD AND GIVE
i
YOU MR. MICHAUD'S TESTIMONY SO WE HAVE THAT IN EVIDENCE.
THE COURT: AND I HAVE THAT TO READ RIGHT NOW?
i -
WOULD MR. MICHAUD, SO ¥
MR. MENSER: YES.
ON THE PROFFER REGARDING THE LAKE) CITY TESTIMONY,
i
OR CHI OMEGA TESTIMONY, .I'M SORRY, WE -WOULD. ALMOST WITHDRAW
|
I
OUR OBJECTION TO THE EXTENT THAT IF THE COURT UPON REVIEWING
i
| -
CITY CASE, IF YOU WANTED TO REOPEN THE PROCEEDINGS WE WOULD
|
HAVE NO OBJECTION TO THAT AS LONG AS -- ~—
MR. YORK: JUDGE, WE JUST WANT you TO HEAR THE
PROFFER AND NOT HAVE ABSOLUTELY NO PROFFER AND THEN HAVE HIM
|
FILE SOMETHING IN WRITING TO THE ELEVENTH CIRCUIT.
|
|
UNITED STATES COURT REPORTER
htaka
Lee
THE COURT: WELL, I'D RATHER HEAR THE PROFFER
LIVE.
MR. COLEMAN:
|
SHOULD I DO IT TOMORROW THEN,
TOMORROW MORNING AFTER DOCTOR LEWIS?
THE COURT: YOU CAN DO IT THIS AFTERNOON IF You
WANT.
MR. COLEMAN: I HAVE TO PUT IT TOGETHER. I CAN
|
TRY, SURE.
THE COURT:
MUCH OF A RECESS DO YOU WANT?
ALL RIGHT.
WELL, WE'LL TAKE A -- HOW
MR. COLEMAN: WHY DON'T WE TAKE FIFTEEN MINUTES?
THE COURT:
MINUTE RECESS.
(BRIEF RECESS.)
ALL RIGHT.
WE'LL TAKE A FIFTEEN
|
UNITED STATES
COURT REPORTER
et
eel
Pate
24
25
“48
(AT THIS TIME THE JUDGE ENTERS THE COURTROOM).
MR. COLEMAN: YOUR HONOR, THE FIRST THREE WITNESSES
WHO'S TESTIMONY I WOULD LIKE TO PROFFER are) ISAAC KORAN, K 0
RAN, ELIZABETH NICHOLAS AND TERRY D. TERRELL.
i
IN 1978, FEBRUARY OF 1978, ALL THREE OF THESE
WITNESSES WERE EMPLOYEED BY THE PUBLIC DEFENDERS OFFICE, AND
|
DEALT WITH MR. BUNDY WHEN HE WAS ARRESTED IN PENSACOLA.
'
RATHER THEN ATTEMPT HERE TO LAYOUT THEIR
TESTIMONY, I WILL REFER THE couRT TO EXHI@IT THREE THAT WAS
OFFERED IN IDENTIFICATION ON OCTOBER 22, THE PURPOSE OF
BRINGING THESE THREE WITNESSES WAS TO AUTHENTICATE THE
MEMORANDUM WHICH IS EXHIBIT THREE, AND THEY) WOULD HAVE
TESTIFIED AS REFLECTED IN THE MEMORANDUM.
THE TWO WITNESSES IN COLORADO, wHO'S TESTIMONY WE
|
|
WOULD HAVE OFFERED.
FIRST IS CHARLES LEIDNER, L E I olN ER.
MR. LIGHTNER IS THE ATTORNEY WHO visiteo MR. BUNDY
IN UTAH, AND THEN LATER REPRESENTED HIM IN coLorano.
IF MR. LEIDNER WERE PERMITTED TO TESTIFY, HE WOULD
TESTIFY ABOUT HIS MEETING WITH MR.” BUNDY IN) THE UTAH STATE
PRISON.
HE WOULD TESTIFY THAT ONCE MR. BUNDY ARRIVED IN
DENVER HE SOUGHT CONTROL OF HIS CASE.
|
HE WOULD TESTIFY THAT MR. BUNDY DID NOT LIKE
1
f
ANYBODY WHO WOULDN'T GIVE HIM CONTROL OF THE CASE.
|
Bie
Rahs
l 149
HE WILL EXPRESS HIS OPINION ABOUT HOW SHAKY THE
CASE WAS IN DENVER, I AM SORRY, COLORADO, aN THAT IT GOT
WORSE AT THE PRELIMINARY HEARING. THE ONLY| ALLEGED IT
WITNESS TO THE MURDER WHEN ASKED TO IDENTIFY THE PERSON SHE
|
SAW, SHE SELECTED AN UNIFORMED DEPUTY SHERIFF, AND NOT MR~.
BUNDY.
|
THE ONLY OTHER EVIDENCE HE WOULD TESTIFY THAT THE
STATE HAD WAS A GAS RECEIPT THAT PLACED MR. “BUNDY IN THE
VACINITY OF THE CRIME AT THE TIME THAT THE victim
DISAPPEARED. ! ;
HE WOULD TESTIFY THAT SHORTLY AFTER MR. BUNDY
ARRIVED IN COLORADO HE WANTED TO FILE MoT IONS AND DID SO.
AND THAT THE MOTIONS FOR THE MOST PART DEALT WITH HiS
i
I
PHYSICAL COMFORT.
i
HE WOULD TESTIFY THAT MR. BUNDY FILED ONE MOTION
: i
THAT REQUIRED MR. LEIDNER TO MEET WITH HIM THREE DAYS A
WEEK. HE WOULD TESTIFY THAT AT THESE MEETINGS MR. BUNDY DID
NOT FOCUS ON THE CASE.
a HE WOULD TESTIFY ALTHOUGH MR= BUNDY PROFESSED HIS -
INNOCENCE IN COLORADO, HE WOULD NOT DISCUSS! THE STATES
EVIDENCE WITH HIS LAWYERS.
- - f
HE WOULD TESTIFY THAT FROM THE VERY BEGINNING MR.
|
BUNDY PLAYED THE ROLE OF A LAWYER HE WOULD TESTIFY THAT MR.
|
BUNDY WAS ON FOCUS COULD NOT SEE THE OVERALL PICTURE IN
- |
COLORADO, THAT HE COULD SEE DETAILS AND COULD FOCUS ON A
f
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24
25
i}
| 150
SINGLE ISSUE, BUT HE COULD NOT FOCUS ON THE ENTIRE SCENARIO
|
DEVELOPING IN THE CASE.
|
HE WOULD DESCRIBE MR. 8UNDY'S CONVERSATIONS AS
RAMBLING, HE WOULD TESTIFY THAT HE COULD Not GET MR. BUNDY
TO FOCUS ON THE SUBJECT THAT WAS DIFFERENT THEN THE SUBJECT
THAT MR. BUNDY WANTED TO TALK ABOUT AT THE TIME.
HE WOULD TESTIFY THAT MR. BUNDY woure TALK TO
ANYBODY WHO WOULD LISTEN TO HIM, AND THAT on SEVERAL
OCCASIONS HE HAD CONVERSATIONS WITH A MR. MIKE FISHER; WHO
WAS AN INVESTIGATOR FOR THE DISTRICT ATTORNEY.
HE WOULD TESTIFY THAT MR. SUNDY APPROACHED THE
COLORADO PROCEEDINGS AS A PRODUCTION THAT was WRITTEN BY,
DIRECTED BY AND STARRING MR. SUNDY.
i
AND HE WOULD TESTIFY THAT WHENEVER ANYBODY TRIED
TO USURP ANY OF THESE FUNCTIONS, THAT MR. aunoy ACTED TO
PREVENT IT.
HE WOULD TESTIFY THAT MR. BUNDY WAS LIKE, IN HIS
WORDS A LITTLE 80Y PLAYING GROWN UP.
HE WOULD TESTIFY THAT MR. SUNDY DI|D NOTHING
CONSTRUCTIVE TO ASSIST WITH HIS DEFENSE IN COLORADO, THAT HE
GENERALLY WENT OFF IN TANGENTS, AND THAT HE WANTED EVERYBODY.
|
RUNNING AROUND IN ALL DIRECTIONS AT HIS 8ECKON CALL.
HE WOULD TESTIFY THAT ALTHOUGH MR. BUNDY DESCRIBED
IN VERY ACCURATE DETAIL THE GAS STATION WHERE HE PURCHASED
~
GAS IN COLORADO ON THE NIGHT THAT THE VICTIM THERE
.
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151
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DISAPPEARED, THAT HE COULD NOT GIVE AN ACCOUNT OF HIS
|
MOVEMENTS AFTER PURCHASING THE GAS. |
|
THE OTHER WITNESS FROM COLORADO IIS MR. WALLLY
|
BARRETT, HE WAS AN INVESTIGATOR WHO WORKED WITH THE PUBLIC
DEFENDERS IN COLORADO. \
HE WOULD TESTIFY ABOUT A SINGLE CONTACT THAT HE
HAD WITH MR. BUNDY.
HE WOULD TESTIFY THAT HE BELIEVES ON THE DAY OR
|
ABOUT THE DAY THAT MR. BUNDY ESCAPED FROM COLORADO THE
j .
SECOND TIME, AND SHORTLY WAS APPREHENDED IN| FLORIDA, THAT HE
MET WITH MR. BUNDY IN HIS COLORADO JAIL CELL, THAT AT THE
va
TIME MR. BUNDY WAS REPRESENTING HIMSELF, IN) THE COLORADO
|
CASE, AND THAT MR. SUNDY HAD ASKED MR. BARRETT TO COME IN TO
BRIEF HIM ON THE INVESTIGATION.
HE WOULD TESTIFY THAT-—
THE COURT: THIS WAS BEFORE, YOU SAID HE WAS
BEFORE REPRESENTING HIMSELF. . :
MR. COLEMAN: AFTER MR. LEIDNER. |
|
_ THE COURT: AFTER LEIDNER.
MR. COLEMAN: HE WOULD TESTIFY THAT MR. BUNDY ASKED
i
HIM TO COME IN AND BRIEF HIM ON THE INVESTIGATION; AND THAT
|
- |
HE SPENT THREE AND A HALF, THREE TO THREE AND A HALF HOURS
WITH MR. BUNDY FOR THAT PURPOSE.
. -
HE WOULD DESCRIBE THE EXPERIENCE IN HIS WORDS AS A
FAIRY TALE-
bean
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25
152
HE SAID THAT HE HAD HE WOULD TESTIFY THAT HE HAD
LOOKED FORWARD TO BRIEFING MR. BUNDY BECAUSE HE THOUGHT THAT
I
WITH MR. BUNDYS EXPERIENCE AND HIS KNOWLEDGE, THAT HE WOULD
BE ABLE TO ACCOMPLISH SOMETHING IN THE BRIEFING. HE WOULD
TESTIFY THAT, HOWEVER, THAT WHEN HE FINISHED THE MEETING,
THAT HE HAD THE IMPRESSION THAT MR. BUNDY WAS A CHILD
DIRECTING AN INVESTIGATION WITHOUT ANY KNOWLEDGE OF THE
|
FACTS DIRECTING AN INVESTIGATION.
- wee i .
HE WOULD TESTIFY THAT IN PARTICULAR HE ATTEMPTED
i
TO DESCRIBE TO MR. BUNDY HOW HE WAS GOING ABOUT
|
INVESTIGATING MR. BUNDYS MOVEMENTS IN COLORADO, WHICH MR.
BUNDY WAS UNABLE TO ASSIST HIM WITH. !
HE WOULD TESTIFY THAT MR. BUNDY SHOWED NO
|
UNDERSTANDING OF WHAT HE WAS TALKING ABOUT, AND ALTHOUGH HE
i
TOOK NOTES, HE SEEMED DETACHED, AND HE SAYS THAT ALTHOUGH
MR. BUNDY COULD HAVE ENDED THIS INVESTIGATION BY SIMPLY
SAYING I SLEPT ALONGSIDE THE ROAD, OR I WENT BACK TO UTAH,
- - - |
|
THAT HE DID NOT, BUT WAS NOT ABLE TO MEANINGFULLY ASSIST HIM
|
IN TRYING TO DETERMINE HIS MOVEMENTS. i
|
HE WOULD SAY THE CNLY EMOTION MR. BUNDY SHOWED
|
DURING THE MEETING CAME WHEN HE TALKED ABOUT THE ISOLATION
CELL IN WHICH HE WAS KEPT. -
HE WOULD SAY THAT MR. BUNDY, MR. SUNDYS COMMENTS
7 |
ABOUT THE ISOLATION CELL REFLECTED GREAT PAIN AND
DISCOMFORT.
153
° 4 AND HE FELT.THAT MR. BUNDYS GREATEST CONCERN WAS
2 BEING IN ISOLATION AND BEING LOCKED UP.
3 AND HE WOULD TESTIFY THAT MR. BUNDYS REACTION TO
i
|
i
4 THIS WAS. IN HIS WORDS, “CHILD LIKE".
5 YOUR HONOR, WE WOULD BRIEFLY ALSO|LIKE TO PROFFER
6 THE TESTIMONY OF MR. THOMPSON, THAT WAS NOT: PERMITTED TO 8E
7 OFFERED TODAY, AND TESTIMONY OF MR. DAVID MARCUSS WHO WOULD
8 BE CALLED TO TESTIFY ABOUT HIS RELATIONSHIP |WITH MR. BUNDY
Q DURING THE CHI OMEGA TRIAL, AND MISS NELSON!AND MR. SANDAGE
10 WHO WOULD HAVE HANDLED THESE WITNESSES WILL SUMMARIZE WHAT
mi THEY HAVE DONE.
42 THANK YOU.
13 MS. NELSON: YOUR HONOR, MR. THOMPSON WOULD TESTIFY
14 THAT MR. BUNDY INTERFERED WITH HIS OWN DEFENSE IN THE CHI
15 OMEGA CASE IN NUMEROUS RESPECTS. |
16 THE LAWYERS HAD A PLAN FOR VOIR DIRE, THAT MR.
3 17 THOMPSON AND MR. HAGER WOULD HANDLE THOSE PROCEEDINGS, AND
18 THEY HAD MANY DISCUSSIONS BETWEEN THEM AS TO THE PROPER
19 MANNER TO APPROACH THE QUESTION.
a a
20 JUDGE COWARD HAD STRINGENT REQUIREMENTS FOR
21 | EXCLUSION OF JURORS. MR. BUNDY APPROVED THIS PLAN, BUT
22 | RATHER THAN COOPERATE WITH IT, ENCOURAGED MARGARET GOOD TO
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23 PARTICIPATE. HER PARTICIPATION WAS A SUPRISE, AND SHE HAD
24 NOT BEEN PRIVY TO THE DISCUSSION ON HOW TO DEMONSTRATE
25 BIAS. MR. THOMPSONS REACTION TO THIS PHENOMINA WAS HE
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154
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WALKED OUT OF THE COURTROOM ALTHOUGH HE TRIED TO MAKE IT
LOOK LIKE HE HAD A PLAN TO PASS THE CASE To Miss GOOD AT
THAT TIME. HE WAS UPSET 8Y THE PHENOMENON FoR TWO REASONS -
ONE WAS THAT SHOWED THEIR PLAN FOR TRIAL ws OFF THE TRACK
ALREADY EARLY IN THE PROCEEDINGS, AND THAT MR. BUNDY WAS
INTERFERING WITH THE TEAM PLAN.
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THE AFFECT ON THE TEAM EFFORT WAS DEVASTATING.
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MR. BUNDY WAS UNABLE TO ACCURATELY ASSESS THE JURY AT THE
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END OF JURY SELECTION. MR. THOMPSON WAS PLEASED WITH THE
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JURY, PARTICULARLY ONE JUROR, WHO SEEMED TO BE FAVORABLE TO
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THE DEFENSE. MR. BUNDY IN FACT PARTICULARLY DISLIKED THAT
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FAULT WITH THE
ONE JUROR, AND WHEN THINGS WENT WELL, FOUND
PROCESS AND BECAME AGITATED-.
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THE CASE LOOKED GOOD IN MIAMI THE FIRST FEW DAYS
BECAUSE THE JURY WAS SEEMED TO BE FAVORABLE! AND PENSACOLA
STATEMENTS HAD BEEN SUPPRESSED.
NONE THE LESS, BUNDYS REACTIONS TO THOSE
DEVELOPMENTS WAS INCREASING HIS AGITATION, PEMANDS AND
INTERFERENCE. - - ~ oe -
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BUNDY HAD NO ROLE TO- PLAY IN THE DEFENSE; THE
STRATEGY ADOPTED BY THE TEAM WAS THAT HE HAD BEEN AN
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UNWILLING INNOCENT VICTIM OF POLICE MISCONDUCT -
HE DID NOT COOPERATE IN THAT PLAN | INSTEAD HE
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WOULD WALK AROUND THE COURTROOM AND, SWAGGERING HIS TIE, AND
FLIPPENTLY SAYING HI TO THE THE JURY.
24
25
155
THE DEFENSE TEAM LOST ITS COHESIVENESS BECAUSE OF
BUNDY'S BEHAVIOR AND SPLIT INTO FACTIONS OF! LAWYERS AGAINST
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LAWYERS.
THE TEAM WAS FORCED TO MEET WITH BUNDY NIGHTLY.
BECAUSE BUNDY WAS APPOINTED CO-COUNSEL AND CHIEF COUNSEL ON
THIS CASE. MR. BUNDY HOWEVER DID NOT FOCUS ON THE ISSUES
PRESENTED, BUT INSTEAD WANTED TO DISCUSS WHAT CAN I 00 IN
THE CASE, WHAT CAN MARGARET TO. HIS ATTENTION COULD NOT SE
TURNED TO THE ISSUES THE TEAMS NEEDED TO ADDRESS. -
AT ONE POINT MR. BUNDY UNEXPECTLY | JUMPED UP TO
EXAMINE A WITNESS, THE WITNESS WAS A POLICE |OFFICER ON THE
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SCENE AT THE CHI OMEGA SORORIATY SHORTLY AFTER THE CRIMES.
MR. GSUNDY HAD SEEN PRESENT IN THE TEAM DISCUSSION ABOUT HOW
TO HANDLE THIS POLICE OFFICER. THE HOPES WERE THAT THE
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POLICE OFFICER WOULD DISCUSS VERY LITTLE ASOUT WHAT HE
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OBSERVED AT THE SCENE, AND THAT THE DEFENSE TEAM COULD CROSS
EXAMINE HIM ON THE FACT THAT A CELOPHANE WRAPPER WOULD HAVE
HELD FINGERPRINTS, WAS COLLECTED AT THE SCENE AND THEN
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LOST.
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WHEN MR. BUNDY STOOD UP TO EXAMINE THE WITNESS,
MR. THOMPSON PASSED HIM THE FILE AS IF IT HAD BEEN PLANNED,
- we eS ae -
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SO AS TO MINIMIZE IMPACT ON THE JURY.
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RATHER THEN ASK THE POLICE OFFICER ABOUT THE
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CELOPHANE WRAPPER AND FINGERPRINT, MR. BUNDY, ASKED THE
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POLICE OFFICER TO DESCRIBE IN GREAT DETAIL THE CRIME SCENE.
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156
1 MR. THOMPSON FELT THAT AT THIS POINT THE TRIAL WAS
2 LOST, PARTICULARLY IN THE EYES OF THE JURY wHom THEY THOUGHT
3 WAS MOST FAVORASLE. AT THE END OF THE TRIAL THAT JUROR GAVE
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4 AN INTERVIEW TO THE PRESS IN WHICH HE SAID THAT HE HAD FELT
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5 FAVORABLY TOWARD MR. BUNDY UNTIL THAT OCCURRENCE, AND THAT
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} 6 AFTER THAT HE LOOKED LIKE A" BEADY EYED KILLER," .
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- 7 BUNDY REFUSED TC COME TO COURT ON|A FEW OCCASIONS,
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- 8 | AND SEEMED TO BE PRETENDING TO BE SICK. THE STATE WAS ABLE
- oe Ce one .
9 TO USE AT LEAST ONE OF THESE DAYS TO THEIR ADVANTAGE, -
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10 ADVANTAGE TO DEVELOP A THEORY TO COUNTY THE' DEFENSE POINT
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11 THAT NO FINGERPRINTS OF MR. BUNDY WERE FOUND IN THE CHI i
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12 OMEGA HOME.
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13 MR. THOMPSON WAS SUCCESSFUL IN HANDLING THE
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14 SERIOLOGY ISSUE AND POINTING OUT THAT MR. BUNDY WAS ACTUALLY
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15 EXCLUDED AS A SUSPECT BY THE SERIOLOGISTS EVALUATION.
16 THE ADVANTAGE OF THIS WAS LOST HOWEVER, WHEN MR.
17 | BUNDY INSISTED THAT MISS GOOD GIVE THE CLOSING ARGUMENT, AND
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: 18 SHE WAS NOT FULLY AWARE OF THE AFFECT OF THE SEROLOGY
19 | TESTIMONY. i
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20 : THE DEFENSE TEAM ATTEMPTED TO WITHDRAW FROM THE
fl
: 21 CASE, BUT WERE NOT PERMITTED TO DO SO BY THE COURT. MR.
f
22 HAGGERT WHO HAD BEEN ADDED AS AN EXPERT IN TRIAL WORK IN
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: 23 | MIAMI WAS PRIVATE PRACTICIONER AND WAS ALLOWED TO LEAVE THE
; |
24 CASE BEFORE THE PENALTY PHASE. :
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25 BECAUSE OF BUNDYS POSITION AS CHIEF COUNSEL IN THE
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24
25
| 157
CASE THE LAWYERS HAD TO CAJOLE HIM INTO AGREEMENT. THERE
WERE ALWAYS LOUD ARGUMENTS AND HE WAS ALREADY AGITATED.
i
MR. THOMPSON WILL TESTIFY THAT mR. BUNDY HAD NO
APPARENT STRATEGY WHEN HE WOULD MAKE DECISIONS IN THE CASE.
MR. THOMPSON WOULD TESTIFY THAT MR. BUNDY was NOT
MEANINGFULLY ABLE TO ASSIST HIM IN PREPARING A DEFENSE IN
THE CHI OMEGA TRIAL.
MR. BUNDYS CONDUCT WAS DAMAGING TO THE DEFENSE IN
SEVERAL WAYS.
MR. THOMPSON WILL TESTIFY THAT HE WAS RELUCTANT TO
RAISE A COMPETENCY ISSUE AGAIN CHI OMEGA TRIAL, BECAUSE OF
ITS POTENTIAL EFFECT ON POTENTIAL JURORS IN THE LAKE CITY
CASE.
MR. THOMPSON WOULD TESTIFY THAT MR. BUNDY SHOWED
NO REACTION TO EITHER THE VERDICT OR THE DEATH SENTENCE.
MR. BUNDY CONTRIBUTED NO INFORMATION TO THE
i
DEVELOPMENT OF THE PENALTY PHASE, THANK YOU.
MR. SANDAGE: YOUR HONOR, DAVID MARKUS WAS AT THE
RELEVANT TIME A STUDENT INTERN AT FLORIDA STATE UNIVERSITY
AFTER SERVING WITH THE DEFENDERS OFFICE IN | TALLAHASSEE,» AND
HE SPENT A GREAT DEAL OF TIME WITH. MR. BUNDY IN THE EARLY
|
PART OF 1973 AND WAS SEATED NEXT TO MR. BUNDY THROUGHOUT THE
ao. — — - — oo
CHI OMEGA TRIAL. AND HAD HE BEEN ALLOWED TO TESTIFY HE
WOULD HAVE GIVEN THE COURT TESTIMONY REGARDING HIS
OBSERVATIONS OF MR. SUNDYS BEHAVIOR AND WAY MR. BUNDY
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; | 158
‘ 1 ASSISTED IN HIS DEFENSE.
| |
| 2 MR. MARKUS WOULD HAVE TESTIFIED THAT HIS CHIEF
3 ROLE WAS BABY SITTING MR. SUNDY, AND IN THE COURSE OF THAT
4 BABY SITTING HE OBSERVED MR. BUNDY MOODS WOULD SWING RAPIDLY
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5 FROM MANIA TO DEPRESSION, SOMETIMES IN THE COURSE OF DAY OR
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a
TWO, HE WOULD HAVE TESTIFIED THAT. WHEN MR. BUNDY WAS-- HIS
7 PRIMARY CONCERN WAS WITH SECTION 1983 ACTION HE WAS BRINGING
8 PROTESTING CONDITIONS WHERE HE WAS HOUSED. ee
9 MR. MARKUS WOULD HAVE TESTIFIED WHEN MR. BUNDY WAS
10 | DOWN HE WOULD TAKE PARTICULAR DESTRUCTIVE ACTS DESIGNED To
11 UNDERMINE THE EFFECTIVENESS OF HIS CASE, AND HE WOULD HAVE -
12 OFFERED, FOR INSTANCE, AS AN EXAMPLE, MR. BUNDYS DECISION AS
13 MRS. NELSON SUGGESTED, TO REOUIRE THAT MISS | GOOD GET CLOSING
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14 ARGUMENT EVEN THOUGH MR. GOOD WAS APPELLATE | LAWYERS WITH NO
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15 EXPERIENCE WITH A JURY.
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16 MR. MARKUS WOULD HAVE TESTIFIED THAT MR. BUNDY HAD
< |
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ad 17 A GREAT DEAL OF DIFFICULTY COMING TO RATIONAL DECISIONS AND
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18 HE WAS UNABLE TO STICK TO THEM ONCE HE DID COME TO A
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19 DECISION. AND HIS INABILITY TO ALLOW DEFENSE TO SETTLE HIS
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20 INABILITY TO ALLOW DEFENSE COUNSEL TO SETTLE ANY DEFENSE
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21 STRATEGY _UNDERMINED THEIR ABILITY TO DEFEND|MR. 8UNDY'S: — _
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22 HE WOULD OFFER ANOTHER EXAMPLE OF THAT. THE
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7 23 STATEMENTS, TESTIMONY OF A MICRO-ANYLIST OF |HAIR EVIDENCE.
| -
t 24 AND MR. BUNDY WAS SLATED TO CONDUCT THE CROSS EXAMINATION OF
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25 THAT WITNESS AND MR. MARKUS HELPED IN THE PREPARATION ON THE
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2
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A
24
25
153
PHYSICAL SIDES OF THE EVIDENCE AS FAR AS RESEARCHING SOME OF
THE LEGAL ASPECTS.
THE NIGHT BEFORE THAT PERSON WAS TO GO ON THE
STAND MR. BUNDY CHANGED HIS MIND AND DECIDED HE WOULD NOT DO
THE CROSS EXAMINATION WHICH RESULTED IN THE) LAWYERS HAVING
TO DRAW LOTS AS TO WHO WOULD CONDUCT THE CROSS EXAMINATION.
AND MR. MARKUS WOULD OFFER THAT AS ADDITIONAL EVIDENCE THAT
MR. BUNDY WAS NOT ABLE TO MAKE UP HIS MIND AND CONSISTENTLY
TOCK ACTIONS TO UNDERMINE HIS ABILITY TO DEFEND HIMSELF.
MR. MARKUS WOULD HAVE OFFERED ANOTHER EXAMPLE.
MR. ROBERT HAGGARD CROSS EXAMINED MISS NERI AT THE
SUPPRESSION HEARINGS THAT HE CONDUCTED, PARTICULARLY WHETHER
CROSS EXAMINATION LEFT MISS NERI IN TEARS AND PLEDGEING SHE
WOULD NOT COOPERATE WITH THE STATES QUESTIONS IF SHE WAS
GOING TO BE SUBJECTED TO THAT KIND OF CROSS | EXAMINATION.
MR. BUNDY'S RESPONSE TO THAT WAS To FIRE MR.
HAGGARD.
MR. MARKUS CONCLUDED IN HIS JUDGMENT MR. BUNDY WAS
INCOMPETANT IN AND IRRATIONAL AND UNABLE TO|ASSIST HIS
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LAWYERS IN ANY MEANINGFUL WAY IN DEFENDING HIMSELF, AND I
L
SHOULD STATE THE PREDICATE THAT MR. MARKUS RECENTLY LEFT THE
STATES ATTORNEYS OFFICE IN MIAMI. HE WAS -IN THE SEX CRIMES
UNIT AND TS NOW IN PRIVATE PRACTICE IN MIAMI.
. I.
THE COURT: PETITIONERS HAVE ANYTHING FURTHER
TODAY?
SAPRB___ Seah _
e
| 160
MR. COLEMAN: WE HAVE NOTHING FURTHER.
IN THE EVENT THAT YOUR HONOR pecrbes THAT YOU WILL
PERMIT ANY OF THIS TESTIMONY, PARTICULARLY TESTIMONY OF MR.
|
LEIDNER AND MR. BARRETT, SECAUSE THEY ARE IN COLORADO, I
WILL INFORM THEM THAT THEIR TESTIMONY HAS BEEN EXCLUDED, BUT
IF YOUR HONOR CHANGES YOUR MIND ON THAT, I THINK BECAUSE OF
THE DISTANCE-~.
THE COURT: FORTY EIGHT HOURS?
MR. COLEMAN: FORTY EIGHT HOURS WouLD BE FINE. oR
DEPOSITION.
i
“THE COURT: ~ STATE OF ANYTHING FURTHER TODAY?
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MR. MENSER: NO.
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THE COURT: WE WILL STAND IN RECESS THEN UNTIL
NINE O'CLOCK TOMORROW MORNING.
(RECESS TAKEN).
*
s
24
25
CE
STATE OF FLORIDA:
WE, EMERY C.
OFFICIAL UNITED STATES
UNITED STATES DISTRICT
PROCEEDINGS.
fim pee
RTIFICATE
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TOMPKINS AND ANTHONY ROLLAND, BEING
i
COURT REPORTERS, IN AND FOR THE
COURT, MIDDLE DISTRICT OF FLORIDA,
|
ORLANDO DIVISION, DO HEREBY CERTIFY THAT I Was AUTHORIZED To
1
AND DID REPORT IN COMPUTERIZED SHORTHAND, AND TRANSCRIBE BY
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COMPUTER, TO THE BEST OF OUR ABILITY, THE FOREGOING
7
EMERY C. TOMPKINS
xa
athe
ANTHONY --ROLLAND
OFFICIAL COURT REPORTERS
DATE
