receive first really from the florida supreme court at some point or from the state's circuit court and we have a case management conference scheduled later this month on that particular issue the florida supreme court has been very consistent about granting relief to those individuals who are post ring with nine unanimous jury recommendations and mr rimmer falls into that category so i don't plan on spending any time on that issue today and i actually would ask that perhaps the court hold off on ruling on that in till the state court has had an opportunity to do you have a sense of timing on that well i know it's hard for you to predict but from the conferences you've had to have the sense that when you might get something from the florida supreme court on that issue sure that so our case management is now set for june twenty sixth where will argue the motion before the state circuit court i have not had a circuit court judge reject the claim based on the floor supreme court's case law and the state has now dropped the appeals in all of i know in all of my cases in many other cases that they had filed relating to the relief that had been granted under those circumstances so my position is this is going to be a case that gets rescheduled for we sensing perceiving by the state courts and i with this it without an appeal probably without an appeal to the supreme court so you might have a hansard early this summer i think that this will be resolved in the trial proceedings will start happening probably in august i would imagine that he'll have an attorney appointed for him so you mean they'll be a new senate and trial yes he will get a new sentencing proceeding under such that so your your point is that the   dealing with retroactivity i've forgotten the name what was so there were mostly and a state came out on december twenty second ok mostly it was a postering case that granted  court opinion that if you had two murders ok and maybe this is going to be self answering actually by the time that if you have two murders that you still could have death even though you didn't have a finding on the aggravated but what i think you're going to say is this case has not only that issue no finding on the aggravated but is is that lack of you and you know an image correct so it doesn't even  so in that respect just to start with the brady then as far as the brady claim goes there's the district court found that there were two sort of areas i'm sorry one more question church is that as i not disclosed from the florida department of law enforcement that indicated that there were other suspects in the crime and they had pulled the booking photos of those particular individuals there were three of them and placed them into lineups to be shown to be eyewitnesses in this case that does not appear to have happened or if it has happened it was not revealed to trial counsel through the pretrial investigation that he conducted the second piece of information related to a crime that occurred just a few days before this particular crime which was similar enough in that the law enforcement reached out from the plantation police department to the will manners police department and wanted to show mr rimmer's photograph and get his fingerprints so that they could determine whether or not he was involved in that particular crime and in those records there's also reference to another robbery where there was no homicide in that case but there was a robbery at another similar kind of situation where there's an auto repair store where there is a bay area set up and someone came up unaware of any clearly established federal law that allowed the court to credit the testimony of trial counsel when the defendant was also present and then effective assistance on that seems to me to be wrong well so what happened at the in the state trial court and then in the florida supreme court was the court had indicated that because trial counsel had said i wouldn't have used this information are i don't see the point of some of nd also conclude based on this record with that with this evidence of guilt that that that was right well i don't doubt that it's well here's the problem is the trial counsel who didn't have that information when he was trying the case eight years prior was suddenly put in a position where he was being asked what does this mean to you in terms of your theory and how could you have used it and so he was he was certainly not a he was a hostile witness really to mr rimmer by that point and he indicated that he wouldn't have used it even had he had it but this is someone who's had you know no time to think about it or investigate it further or ask anybody any questions about it so while he could be credited in saying that at the end of the day his his his take that it's not material is clearly rebutted by the evidence and that's what the district court found because she said that this isn't peaching of detective lewis it does show that there were these other things happening in the pretrial in terms of the eyewitness identification that he he didn't acknowledge in his deposition or in his trial testimony so i think that that's where she was saying not necessarily entirely based on trial counsel sort of disregarding it but also that what he was saying is rebutted by the by the actual evidence by these actual documents and even in she found that the the documents about the prior robbery homicide was also would have also been helpful and material to mr rimmer and so again that just rebutted what trial counsel had said his testimony so i thought it how would it have been helpful because in that case if you if you look at the records from that case what you have is you have a three person robbery happening where similar to what happened here where someone approaches the bay area where the work is being conducted and the employees and customers are there and takes their jewelry takes their wallets tells them to get the cash out of the cash register and then leaves and there's a getaway driver and there's a lookout so we know how many robberies there are in the county and in the state that more or less mimic that and no two or three folks go into a store the stores involved in commerce they stick up the store either for cash or goods or both someone gets shot someone dies they get in a getaway car and they split that's very common m o what is it that ties this mind they keep muffler robbery sufficiently closely to but i think i think certainly one factor is the timing can be certainly considered a common feature but then also the fact that plantation police department wanted to actually show its eye witness es rumors photographs and they wanted to look at remembers fingerprints they believe there was enough to look at him in their crime likewise then if you were trying the case certainly you could argue that trial counsel could have looked at this case and presented something and there is another thing that undermines at all all the evidence that tied grammar to describe  right right i mean so what if there was another person involved what it whether he was involved in the plantation or not there was a lot of evidence that ties him to this crime and the question for materiality is whether that will call it brady material would undermine confidence in this verdict right right so that that comes to sort of our prejudice analysis and i don't think at the trial  materiality is in korea is a lot like a prejudice analysis and it certainly there's yes certainly there's some overlap but i guess my point is is that when you look at what the theory of the defense was it was that i'm not that there was an artist sketch that drew you know that that looked like him and it right well putting aside the eyewitness for one second everything other than that doesn't put rimmer into the crime until after the fact the fingerprints there's nothing time him to the crime scene we know that the supposed shooter supposedly touched the cash register touched the shelving and yet those fingerprints don't match him though i mean is that the right because there's nothing timing him to the crime scene and i don't why doesn't that tie him to the crimes i'm sorry there's nothing putting him at the crime scene in terms of like forensic evidence evidence after the fact and that he didn't have anything to do with the actual robbery or homicide now i just want to talk about kyle's forces whitley because the facts in that case when you look at what was presented at mr trial was for eye witnesses put him at the robbery homicide of the victim there was a fingerprint on a receipt found in the victim's car that was stolen he was in possession of the victim purse and the gun that killed the victim this is the evidence presented against mr caius when brady surfaces showing that two of the four eyewitnesses had given sworn previous statements that were not very consistent with their trial testimony and there was some evidence linking him to the informant i think is name was they kept calling him dreamy was his nickname that he may when i look at the substance of the corpus of the evidence that purportedly exculpates i find virtually nothing what is there in this other stuff whether you look at the f how is that are not well it actually identifies the other suspect cases they say the other suspects are jones and smith but what is there in the course don't know what ties them we just know that they were i don't you suppose you have to show something more than that at some point they were suspects well i mean i sort of envision this as when you're at the trial in the jury sitting there and you're asking the detective and you're asking the eyewitnesses and you're asking the fingerprint examiner about these other suspects and whether or not lineups were made and why were now why weren't they shown to the eyewitnesses and why was the fingerprint examiner told not to conduct any more fingerprint analysis even though we had fingerprints at the scene that didn't match rimmer or parker and that again goes into kyle's to show that there's this rush to judgment and then there's a lack of thorough investigation and so that it undermines the entire at the evidentiary hearing we established that the witnesses were not shown those lineups even though they were they were put together by f t l so what we do know is there was an absence of a lineup and an absence of a show up and an absence of friends or prints and that's the totality of it and that at some point someone somehow put it enough to only report that they were suspects right and then  but also on the fingerprint analysis report they're characterized as suspects and they've gone to the length to get their pictures put them in the lineups mr ingram is told to interview witnesses and show people the lineups and then that to me was not that significant because i already you know i was already arguing that he wasn't there and that none of you know that the eyewitness evidence was not reliable  to him he didn't see it as significant but again this is someone sitting on a witness stand being asked questions not having the opportunity i mean i objected to this line of questioning and said this is for the court to determine what significance does would have at this point because he's no longer the trial attorney he's no longer the person making those judgments about me that this is the case does he say something of even if i had it i wouldn't use that it wouldn't help testimony i did want to again emphasize that income which ties him to the same though that is what ties him to the scene and but i think it's important to look at that eyewitness testimony number one and in these false you know in these  that we've seen the number one factor is is faulty eyewitness testimony and if you look at this eyewitness testimony we have from the very beginning we have problems with the reliability davis burke is shown fifty photographs before she makes the sketch before she says a single word to the sketch artist that immediately taints the sketch then we have during the photographic  lineup she's told she picks a different person as her choice and she's also told if you don't see someone exactly like the guy just picked the one closest to it we know that that that is absolutely prohibited at this point in where we are in sort of the investigation how to deal with eyewitnesses so at every step of the way there was unreliable and suggestive means and i understand that the four supreme court didn't find it to be a problem in this case but i think under under the prejudiced analysis you have to consider the totality of that so i would just ask that i reserve the rest of my time do you have  june issue will be joined in a state trial court on the application of her first to a postering defendant with a verdict of nine to three by the jury they're going to seek relief is t the state of the law is in florida ok so if the judge says i'm granting relief based upon what the florida supreme court has said if they do that is that something you're going to s to appeal to the florida supreme court no your honor in the past where we have sought those a week where we disagreed and we sought an appeal we have now withdrawn those appeal the only reason i ask questions is i'm trying to figure out whether we have to fuss with this other issue or whether essentially it's going to be rendered moot and rendered moot pretty soon the state would suggest that this this court does reach the issue of ineffective assist the counsel because the state courts say he gets a do over on the penalty phase it's of no moment that the lawyer on round one may have screwed up or not it's of no moment whether his performance felt the need some acceptable standard or whether there was prejudice shown or not because he gets the relief that you otherwise would have received from a successful script wouldn't claim anyway so it's has to start in a penalty phase square one do over how then could it possibly matter what we say about this strickland claim it doesn't necessarily matter to mr rimmer but this decision or retroactively is that i found judgment in a do not believe that the time has actually run on a say in mostly i may be in incorrect in that however can you advise us as this hearing if the florida supreme court decision is a final judgment and state of florida we need to know yes your honor and i can just do that by letter ye if there are no more questions moved to the brady issue in this case the florida supreme court identified the correct law which was brady and its progeny and then analyzed the facts that were brought out at the evidentiary hearing in this case and determine that there was no brady violation while some of the documents were not turned over like the f t l the document had not been turned over the bulk of that information was already known to defense counsel what was known and what wasn't what wasn't known was the videotape of the of the attempted enhanced ment of the videotape the documents if i understand it you can help me just piece it together included the names of some f t l e law enforcement folks involved in the inquiry right yes was that known or not known that was  opening argument here there were three assailants in this case get it i believe so your honor it got life yes and he never said who the third person was either not not to my knowledge and getting back to the suspect which is the heart of her argument concerning the f there were three other suspects who were named in the report did council have those names on the front end before this you said that he knew some things and didn't know others so he did not know the names of the suspects either what f t l e was tasked with doing was preparing lineups what they also did in preparing their report is they took the will manners police department report which defense counsel did have and they reincorporated a lot of that into their report that will matter police report indicate the names of the on ok so the report lays out three names other than the defendant and his confederate here yes what else does it say about those suspects other than we got these other suspects here they are a b and c but that's in essence what house doesn't say anything about lineups show ups fingerprint analysis or anything like that you know if the testimony was that these were just  no record evidence on that i don't believe so your honor what we have is the f d m l f t l e report defense counsel looking at it identifying what he doesn't know mentioning what he does have anything with with parker he's not interested in but he knew nothing about these three that is to say the name rank and serial number that's correct john what evidence if any in this record either previous post is there that ties these other three suspects a b and c to this crime other than that they were characterized as suspects in an early have to ellie report nothing was brought out about that you is there any reason there was offered in this record about why no fingerprints were taken from  not in this record that none of the none of the officers testified at the evidence you're hearing as to why they didn't take fingerprints or or show or lineup or or show or thank you  with regard to again staying with the identification ms burke composite sketch the one that she developed was so closely tied to mr rumors from the physical attributes that a the owner of a different audiophile store recognized recognized him as the person who had a beef with audio logic and then brought it to the attention of the owner of audiological of course the police and that's how mr rimmer was developed as the suspect that it was so close that others could recognize mr rimmer and then when mr rimmer was spotted driving his one thousand nine hundred eighty eight oldsmobile not the probe that he had used in the robbery he did throw out three items the two guns and mr moore's wallet that that's pretty damning evidence and the firearms were matched up to the bullets that in it out of the car yes that was ok just that was the other weapon also mr rimmer is the one that had the had the equipment that was stolen opened up an account with a storage company sign the report all of that comes out the had the ford probe that's a another car in his name he is tied to th since they were in that store for a while she says there's no fingerprint evidence but the cash register are anything apparent evidence of him doing the robbery will end is that correct again will that there was nothing there was nothing that could be identified as mr rumors however there were plenty of fingerprints this is a a business a business that has many people in and out of it they were but wh fingerprints at the store given that he took the gun out of the cash or maybe he did maybe somebody else took it out and gave it to him if there were plenty of prints that may not have been identifiable doesn't mean that he didn't leave prints but there were no fingerprints tying him to the scene is her point that is the floor and todd knol that was the ammo the same and they all the robbery i do not remember if they were duct tape your honor however i do remember something that mr rimmer's photograph was shown and none of those witnesses could identify him was the item that was put into evidence in this case with regard to the the report of a chop shop and and where that of the murder weapon was initially  taken the defense counsel would not have wanted to put that in to show that mr reverse involved and in a crime ring or or that he had the murder weapon before entering the store with regard the i think that was a fourth thing the the bulk of the information was known to counsel and therefore it's wasn't wasn't withheld it wasn't at the dish importantly the right standard of or no i don't believe so your honor the district court ignored it certain factual findings and ignored it in essence a credibility finding credibility findings is pretty sacrosanct the florida supreme court looked at what the defense counsel said and the defense counsel was under oath and he made those representation  line ups i guess they were must have been a photo right on up had been prepared that they had the a driver's license photos ok they're not a photo right i don't believe it was a suspects their names are a b and c and we have the driver's licenses of each of the three suspects and quite another thing to say that f d l e law enforcement put together a photo spread recollection however i want to be honest with the court i do not recall if there were actually photo arrays done my recollection is that they were for the driver's license photos i may be would be helpful thank you ana and maybe a regular side of course yes i'm just trying to make sure i understand there's nothing but the names i know driver's license wouldn't be much but there's nothing about the suspects other than the names that was lifted over to the f l about lots of things then necessarily the testimony but so i was trying to compare the two so i need to know where the two thousand and three one is in the cloud review record i will i will look that up your honor if i got it and it may be just have a heart test mine i will check your honor ok thank you thank you ron  just a couple of quick things these lineups that were made with the other suspects are in the record in the district court they were filed this document sixteen dash one for two and the action now and they are  bernard gilbert and then they also a no no no that's not the thrust of my question could also put them in michael mind that's what i'm asking they have a lineup of each of the suspects with five others  if they just put that suite suspects together in the same photo spread if i recall they may have put them into the same photo spread ok i got it there were there were several different photo spreads though that they that they did  never was identified certainly shouldn't impact the issue about the other suspects to the extent that if they thought that the third person was if that was one of the other suspects was the that is disputed that was never shown this photographs were never shown to any of the witnesses right now we know that because i want because i thought the law enforcement officers were not questioned a lateral clear i know that what had happened was is that detective lewis was asked at some point by trial counsel and this it was revealed in the post conviction hearing what if there were any other  suspects and he had said there were not so that that's where i'm taking that from his trial counsel's testimony that there he was unaware of it because lewis had told him there was nobody nobody out there that they were looking at a misstated another way there's no evidence in the record that these photographs were shown to the witnesses correct that's the the other thing i just want to again point out that you know this this notion that davis burke's description of mr rimmer was very solid i don't know how that can hold up when we have her looking at a photo array and choosing another person and then according to her sworn statement being told your boyfriend pick this guy and then that's when she picks him detective lewis says he didn't tell her that your boyfriend picked this guy till after she picked f or her second choice but her sworn statement is clear and that is in the record that she only picture him or because she was told your boyfriend picked this guy so let me go make sure i understand  what the supreme court of florida said was that on may fourth two days after the robbery she provided a description of this from that sketch was drawn right rect yes and that sketch was then shown to the owner of this store who recognized him as having a beef with audio logic isn't that right that's that's right ok and the photo has nothing to do with that or know that the only thing in relation to that the other piece of that the dr brigham talked about at the evidence you hearing was she had been exposed to this group of photographs which is improper improper before you sit down with a sketch artist and that would taint her memory of was shown a photo lineup on may true she was shown the photo lineup but before she did the composite sketch she was exposed and that may not be in the florida supreme court opinion but it is in this record because she was exposed to at least it right at least fifty photos and i understand that the individual at the other auto shop said oh wait i'm in this guy came in complaining but certainly if he had that in his mind that there was someone who had a beef then he may have pointed to you know said let's figure out who that guy was so i don't know that we can put a lot of stock in the fact that he identified look for the guy who came back in incomplete tell me if i looked at that skit she would look like him personally i don't think it looks like him but i think if you look at  the you know the other thing that we're missing that i haven't said and i think is important is the rumor is legally blind without his eyeglasses and this is a huge problem because nobody has him wearing eyeglasses and it would be it would have been impossible for him to co commit a crime without was he wearing eyeglasses the day he was arrested and in the car yes he had glasses on yes and they made him take them off during the lineup and i  guess he's not wearing them he's where i don't know if he's wearing them in his driver's license photo but it clearly says that he has a restriction he has a restricted driver's license so no i so there are there are several problems with the eyewitness testimony i would ask the court when you look at this case the totality of the circumstances and you look at a case like this to find that the district court should have granted found