IN THE SUPREME COURT OF FLORIDA

ROBERT JEFFREY TREASE,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

: Case No.

89,961

APPEAL FROM THE CIRCUIT COURT

IN AND FOR SARASOTA COUNTY

STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

JAMES MARION MOORMAN

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

ANDREA NORGARD

Assistant Public Defender

FLORIDA BAR NUMBER O661O66

Public Defender's Office

Polk County Courthouse

P. O. Box 9000--Drawer PD

Bartow, FL 33831

(941) 534-4200

ATTORNEYS FOR APPELLANT

TOPICAL INDEX TO BRIEF

PAGE NO.

PRELIMINARY STATEMENT 1

STATEMENT OF THE CASE 2

STATEMENT OF THE FACTS 4

SUMMARY OF THE ARGUMENT 30

ARGUMENT 33

ISSUE I

THE TRIAL COURT ERRED IN DENYING

COUNSEL'S REQUEST TO HAVE A SECOND

ATTORNEY APPOINTED TO ASSIST IN THE

DEFENSE OF MR. TREASE. 33

ISSUE II

THE TRIAL COURT ERRED IN REFUSING

TO APPOINT DIFFERENT COUNSEL TO

REPRESENT MR. TREASE. 36

ISSUE III

THE TRIAL COURT ERRED IN THE ADMISSION

OF THE TESTIMONY AND PRIOR

CONSISTENT STATEMENTS OF THE CODEFENDANT,

HOPE SEIGEL. 43

ISSUE IV

THE TRIAL COURT ERRED IN ADMITTING

EVIDENCE OF OTHER BAD ACTS OF MR.

TREASE. 55

ISSUE V

THE TRIAL COURT ERRED IN ASSIGNING

LITTLE OR NO WEIGHT TO THE MITIGATING

FACTOR THAT MR. TREASE HAD AD-

TOPICAL INDEX TO BRIEF (continued)

JUSTED WELL TO INCARCERATION AND

ASSISTED IN PREVENTING THE SUICIDE

OF ANOTHER INMATE. 68

ISSUE VI

THE TRIAL COURT ERRED IN FINDING

THE AGGRAVATING FACTOR THAT THE

HOMICIDE WAS COMMITTED TO AVOID

ARREST. 69

CONCLUSION 71

CERTIFICATE OF SERVICE 71

iii

TABLE OF CITATIONS

CASES PAGE NO.

Albright v. State,

378 So. 2d 1234 (Fla. 2d DCA 1979) 62

Anderson v. State,

574 So. 2d 87 (Fla. 1991) 53, 54

Armstrong v. State,

642 So. 2d 730 (Fla. 1994) 34

Audano v. State,

641 So. 2d 1356 (Fla. 2d DCA 1994) 59

Barnes v. State,

576 So. 2d 439 (Fla. 4th DCA 1991) 54

Bouie v. State,

559 So. 2d 1113 (Fla. 1990) 41

Bowden v. State,

588 So. 2d 225 (Fla. 1991) 42

Castro v. State,

547 So. 2d 111 (Fla. 1987) 60, 61, 64

Chandler v. State,

22 Fla. Law Weekly S653 (Fla. October 16, 1997) 52, 53

Colutino v. State,

620 So. 2d 244 (Fla. 3d DCA 1993) 52

Cortes v. State,

670 So. 2d 119 (Fla. 3d DCA 1996) 52

Cuyler v. Sullivan,

446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) 41

Czubak v. State,

570 So. 2d 925 (Fla. 1990) 61

Davis v. Alaska,

415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) 47, 50

Dawson v. State,

585 So. 2d 443 (Fla. 4th DCA 1991) 52

TABLE OF CITATIONS (continued)

Dawson v. State,

528 So. 2d 1309 (Fla. 2d DCA 1988) 52

Drake v. State,

400 So. 2d 1217 (Fla. 1981) 60

Edwards v. State,

548 So. 2d 656 (Fla. 1989) 49, 50

Escobar v. State,

22 Fla. Law Weekly S415 (Fla. July 10, 1997) 64

Gamble v. State,

492 So. 2d 1132 (Fla. 5th DCA 1986) 48, 49

Gideon v. Wainwright,

372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963) 34

Godorov v. State,

365 So. 2d 423 (Fla. 2d DCA 1978); cert. denied, 376 So.

2d 76 (Fla. 1979) 47

Hawkins v. State,

326 So. 2d 229 (Fla. 2d DCA); cert. denied, 336 So.

2d 108 (Fla. 1976) 49

Hodges v. State,

403 So. 2d 1375 (1981) 63

Jackson v. State,

498 So. 2d 906 (Fla. 1986) 52

Jaggers v. State,

536 So. 2d 321 (Fla. 2d DCA 1988) 47

Lewis v. State,

570 So. 2d 412 (Fla. 1st DCA 1990) 47

Lewis v. State,

377 So. 2d 640 (Fla. 1979) 62

Morris v. Slappy,

461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983) 41

O'Reilly v. State,

TABLE OF CITATIONS (continued)

516 So. 2d 107 (Fla. 4th DCA 1987) 47

Peek v. State,

488 So. 2d 52 (Fla. 1986) 60

TABLE OF CITATIONS (continued)

Perry v. State,

522 So. 2d 817 (Fla. 1988) 69

Preston v. State,

607 So. 2d 404 (Fla.1992) 69

Quiles v. State,

523 So. 2d 1261 (Fla. 2d DCA 1988) 54

Rodriguez v. State,

609 So. 2d 493 (Fla. 1992); cert. denied, 510 U.S. 830,

114 S. Ct. 99, 126 L. Ed. 2d 66 (1993) 54

Sanborn v. State,

474 So. 2d 309 (Fla. 3d DCA 1985) 41

Schwab v. State,

636 So. 2d 3 (Fla. 1994) 42

Sexton v. State,

22 Fla. Law Weekly S469 (Fla. July 17, 1997) 62

Spencer v. State,

691 So. 2d 1062 (Fla. 1996) 68

State v. DiGuilio,

491 So. 2d 1129 (Fla. 1986) 61

State v. Jones,

625 So. 2d 821 (Fla. 1993) 52

Straight v. State,

397 So. 2d 903 (Fla.); cert. denied, 454 U.S. 1022,

102 S. Ct. 556, 70 L. Ed. 2d 418 (1981) 61

Tullis v. State,

556 So. 2d 1165 (Fla. 3d DCA 1990) 49, 50

Williams v. State,

621 So. 2d 413 (Fla. 1993) 58-60, 63

OTHER AUTHORITIES

TABLE OF CITATIONS (continued)

vii

§ 90.403, Fla. Stat. (1995) 58, 61

§ 90.404 (1)(a), Fla. Stat. (1995) 62

§ 90.404(2)(a), Fla. Stat. (1995) 55, 58

§ 90.405, Fla. Stat. (1993) 63

§ 90.801(2)(b), Fla. Stat. (1995) 52

PRELIMINARY STATEMENT

The record in this case consists of 31 volumes and one

supplemental volume. Volumes 1 through 12 contain records

supplied by the clerk, including depositions. These volumes will

be designated "C" in the Initial Brief. The remaining volumes

contain transcripts of the hearing and trial and will be referred

to as "R" in the Initial Brief. The supplement will be referred

to as "S". Arabic numerals shall be used to designate the Volume

numbers.

The Appellant in this case, Mr. Trease, shall be referenced

by the use of his name. The co-defendant, Hope Seigel shall be

referred to as "Seigel".

Summaries of the depositions will not be done in the Statement

of the Facts in the interest of page conservation. When

necessary, they will be referred to in the brief and referenced

as being testimony contained only in deposition.

STATEMENT OF THE CASE

On September 28, 1995, the Appellant, Robert Trease, was

indicted by the Grand Jury for Sarasota County, the Twelfth Judicial

Circuit, for the murder of Paul Edenson on August 17, 1995.

(Vol.1, C31-32) Hope Seigel was charged as a co-defendant in a

separate indictment. (Vol.1, C37) Conflict counsel was appointed

to represent Mr. Trease. (Vol.1, C8,132) Mr. Trease was also

charged with Armed Burglary and Robbery with a Firearm arising

out of the same incident as the murder, and these charges were

consolidated for trial. (Vol.1, C183)

Numerous pre-trial motions were filed by the State, including

Notices of Intent to Use Evidence of Other Crimes and Wrongs

(Vol.1, C188-189; Vol.2, C211-212,374-375; Vol.3, C513-514);

Motions in Limine regarding the co-defendant (Vol.3, C509-510),

victim (Vol.3, C511-512), defense witnesses (Vol.3, C576-577),

and the co-defendant's statements to others (Vol.4, C625-626).

Defense counsel also filed numerous pre-trial motions,

including moving to Appoint Co-Counsel (Vol.1, C58-59) to strike

the Notice of Other Crimes (Vol.4, C637-638); to Suppress Statements

(Vol.4, C628-634); Motions for Koon and Nelson inquiries

(Vol.2, C353-363, Vol.3, C451-453,496-500); and Motions in Limine

(Vol.4, C655-636; Vol. 12, C 1770-1774)

Mr. Trease sought to remove defense counsel on numerous

occasions. The first motion to dismiss counsel was filed on

September 6, 1996. (Vol.2, C242-246) A supplement to the motion

was filed on September 12, 1996. (Vol.2, C258-264) An emergency

Motion to Dismiss Counsel was filed on September 30, 1996.

(Vol.2, C280-295) Defense counsel moved to withdraw on October

7, 1996. (Vol.1, S2407-2410) An ex-parte hearing was heard on

the motion on the same day. (Vol.32, C303-333) Mr. Trease then

filed an Second Emergency Motion to Dismiss Counsel on October 9,

1996. (Vol.2, C334-341) All motions were denied. (Vol.2, C353-

370) Mr. Trease unsuccessfully attempted to appeal this denial

to the Second District Court of Appeal. (Vol.2, C373,377-378,

Vol.4, C679)

Mr. Trease was tried by a jury from November 25, through

December 11, 1996. (Vol.18-29) The jury returned a verdict of

guilty as charged on December 11, 1996. (Vol.1 , C1846-1847)

Penalty phase was held on December 16 through 19, 1996.

(Vol. 30-31) The jury returned an advisory recommendation of 11-

1 in favor of execution. (Vol.29, C1884-1885)

The trial court sentenced Mr. Trease to death on January 22,

1997. (Vol.12, C2232-2246) The Notice of Appeal was filed on

February 18, 1996. (Vol.12, C2335-2336)

STATEMENT OF THE FACTS

GUILT PHASE

The body of Paul Edenson was found by his housekeeper on

August 18, 1995. (Vol.22, R1490-1492) Mr. Edenson was lying in a

pool of blood in the living room of his home just off the Boulevard

of the President's in Sarasota, Florida, clad in a bathrobe and

underwear. (Vol.22, R1492,1499) The police were summoned. They

secured the area and sent for the medical examiner. (Vol.22, R1497-

1508) The police found no signs of forced entry and observed only

the couch near the body seemed to be out of place. (Vol.22, R1507-

1508)

Dr. James Wilson, the medical examiner, viewed the body at the

scene. (Vol.22, R1513) He observed the body on the floor in a

large pool of blood and a one to two inch piece of tissue lying

four to six feet from the body. (Vol.22, R1514-1520) When the body

was turned over a piece of rubber from the tip of a rubber glove

was found. (Vol.22, R1522-1525)

Dr. Wilson, through observation at the scene and a subsequent

autopsy, determined that Mr. Edenson had been shot on the right

side of his face, with the gun most likely having been placed

against his head. (Vol.22, R1531) The bullet passed through the

frontal lobes and exited through the right eye, completely disrupting

it and causing it to be dislodged to the floor. (Vol.22, R1531-

1535,1535-1543; Vol.23, R1584) The gunshot wound was consistent

with having been made by a 9mm bullet. (Vol.22, R1539) Wilson

stated the injuries would ultimately be fatal, but that they would

not have immediately caused death. Brain stem function, which

controls breathing, was not immediately affected. (Vol.22, R1543)

The left eye and tip of the nose also showed signs of abrasion

consistent with him having been struck. (Vol.22, R1535-1537)

There were some small marks on the back of the right arm which

might be consistent with having been caused by a stun gun.

(Vol.23, R1589-1590)

Dr. Wilson also observed severe trauma to the neck. (Vol.22,

R1545) Dr. Wilson found three large wounds which cut deeply into

the neck and were made from right to left. (Vol.22, R1550-1555)

The most likely instrument used to make them was a knife (Vol.22,

R1571-1573) The piece of tissue found on the floor of the house a

few feet from the body was the hyoid bone which is located just

above the larynx. (Vol.22, R1557-1558) Dr. Wilson opined that it

would take a very powerful cutting or thrusting movement to expel

that tissue and to account for the depth of the cuts. A tremendous

amount of force was required to cause these injuries. (Vol.22,

R1558) Dr. Wilson acknowledged that sometimes great anger or rage

can lead to increased strength. (Vol.23, R1591-1592)

Dr. Wilson opined that Mr. Edenson was struck in the face

shortly before his death. He was then shot and his head pulled

back with the assailant behind him and his throat cut. (Vol.22,

R1559-1563) Dr. Wilson also believed that Mr. Edenson would have

been capable of some movement after being shot. (Vol.22, R1565)

Mr. Edenson may have been subdued in his level of consciousness,

but he could have been aware that he had been injured and tried to

escape further injury. (Vol.22, R1566) He may have been able to

make some vocalization sounds. (Vol.22, R1566) The neck wounds in

combination with the gunshot wound would have caused death in a

matter of minutes. (Vol.22, R1569)

Hope Seigel testified that she was present at the death of

Paul Edenson. (Vol.23, R1603) Seigel was a 25 year old, single

parent of a 9 year old girl. (Vol.23, R1604) Seigel liked black

panthers, and sometimes signed her name "Black Panther". (Vol.23,

R1753) She lived at her parents home in Bradenton. (Vol.23, R1615)

Seigel's mother, Mary, cared for her child. (Vol.23, R1616)

Seigel had been in a serious car accident in 1992. (Vol.23,

R1748) It caused her to be moody, to be forgetful, and much more

emotional due to the brain injuries she suffered. (Vol.23, R1749)

Mary Seigel noted that Seigel "couldn't take everything" in and

would be easily frustrated. (Vol.24, R1852) Seigel admitted to

taking several drugs, including Vicodin and Valium. (Vol.23, R1768)

She would take Prozac if it was around. (Vol.23, R1769) According

to her mother, Seigel was right handed. (Vol.23, R1850)

Seigel pled guilty to the charge of principal to a second

degree murder after being charged with first degree murder and was

awaiting sentencing at the time of her testimony (Vol.23, R1803).

Seigel agreed to testify consistent with the statement she had

given at her arrest. (Vol.23, R1815) She expected to receive

between 10 and 20 years prison as punishment for her participation

in the murder of Mr. Edenson. (Vol.23, R1604-1605) Seigel was

aware that no evidence linking Mr. Trease to the crime was found at

the scene. (Vol.23, R1803) The only evidence placing him at the

murder was Seigel's word. (Vol.23, R1803) Seigel admitted to contacting

Mr. Trease after they were arrested to try to get him to

say things to incriminate himself and exonerate her. (Vol.23,

R1808) She admitted to sending him a pornographic picture she drew

of herself. (Vol.23, R1809-1810)

Seigel testified that she was Mr. Trease's sometime girlfriend.

(Vol.23, R1607) They began to date in December 1994, broke

up in the spring of 1995, and then got back together toward summer.

(Vol.23, R1612) Seigel admitted she was very jealous of Mr.

Trease, she sought out his girlfriend when she and he were broken

up, and was very angry. (Vol.23, R1752-1753) During the break-up

Seigel dated a man named David Shorin several times and had an

intimate relationship with him. (Vol.23, R1613,1754,2213) She was

aware that Shorin had guns in his bedroom. (Vol.23, R1614,1755)

Seigel had some familiarity with handguns and was planning on

taking shooting lessons. (Vol.23, R1757-1760)

Seigel and Mr. Trease took a trip to Biloxi together, which

was the beginning of their reconciliation, and while there planned

to burglarize Shorin. (Vol.23, R1616) They went to Shorin's house,

and after making sure he was not home, they entered through a

window and stole a safe. (Vol.23, R1618) They took the safe in

Seigel's truck back to Seigel's house. (Vol.23, R1618) They found

guns, money, and knives in the safe. (Vol.23, R1619,2203-2205) Mr.

Trease left town with several of the guns. (Vol.23, R1620) When he

returned he had kept several of the guns, including a very small

one and a Glock. (Vol.23, R1621) Mr. Trease would carry the Glock

in the back of his pants. (Vol.23, R1622)

Seigel saw Mr. Shorin after the burglary. (Vol.23, R1620) She

did not tell him that she had committed the burglary. (Vol.23,

R1620,1762-1763) In his words, she was "cool as a cat". (Vol.25,

R2215)

According to Seigel, Mr. Trease told her that he had worked

for the FBI and the DEA or something. (Vol.23, R1625) In fact,

Seigel had worked for the police and owned two shirts that said

"Police" on them. (Vol.23, R1625,1748)

Mr. Trease stayed with Seigel at her parent's home while her

parents and daughter were in Pennsylvania. (Vol.23, R1626) She

observed him practice defensive martial arts called "Aikido". (Vol.

23, R1626)

Seigel met Paul Edenson in 1995 when she went with Mr. Trease

to Bayview Motors for the purpose of selling his Mercedes. (Vol.23,

R1995) Edenson owned Bayview Motors. (Vol.23, R1609) Mr. Trease's

car was taken by Bayview on consignment, but did not sell. It was

returned. (Vol.24, R1938-1939) Seigel went to the dealership three

or four times and also ran into Mr. Edenson once in a restaurant.

(Vol.23, R1611) Seigel and Mr. Trease would sometimes drive by the

car lot and Mr. Trease would wonder if there was a safe in the

store. (Vol.23, R1627)

According to Seigel, it was Mr. Trease's idea for her to call

Mr. Edenson and arrange a date with him in order for her to find

out if he had a safe they could then steal. (Vol.23, R1628) Seigel

called and talked to Mr. Edenson. (Vol.23, R1629)

She called Mr. Edenson again on her phone on August 17, 1995.

(Vol.23, R1629) Seigel claimed she didn't want to make the calls,

and she called different numbers to fool Mr. Trease. (Vol.23,

R1630) According to Seigel, Mr. Trease got frustrated, took the

phone, dialed information, and had the operator connect the call,

and then handed her the phone. (Vol.23, R1631) Phone records

reflected that three calls were made to Bayview Motors on August 17

from the Seigel residence. (Vol.24, R1906) The calls were present

on the bill because they utilized directory assistance. (Vol.24,

R1910) Instead of hanging up, Seigel arranged a date for that

evening with Mr. Edenson. (Vol.23, R1631-1632)

Rick Goldman was in Paul Edenson's office on August 17, 1995,

when Edenson received a phone call around 6:30 p.m. (Vol.24, R1878)

Due to the gestures and facial expressions Mr. Edenson gave him

during the call, Goldman believed the caller was a female. (Vol.24,

R1881)

Seigel got very dressed up for the date, wearing a black dress

and high heels. (Vol.23, R1633) She did her hair up big. (Vol.23,

R1633) Seigel took some drugs, Vicodin and Valium, with some

vodka. (Vol.23, R1636) Seigel carried her purse, which contained

her stun gun. (Vol.23, R1729,1776) Mr. Trease dressed in casual

clothes and then she drove them down to Mr. Edenson's house in her

pick-up truck. (Vol.23, R1634) Once they got to his neighborhood,

she saw Mr. Edenson in his yard. He waved and Mr. Trease ducked

down so he wouldn't be seen. (Vol.23, R1636-1637) Seigel drove

around the block and dropped Mr. Trease off at a bar called ChaCha

Coconuts. (Vol.23, R1638) Seigel returned alone to Mr. Edenson's.

(Vol.23, R1638)

Seigel went in the house and sat in a massage chair while Mr.

Edeson showered. (Vol.23, R1638) She then sat on the couch with

Edenson while he was wearing only bikini underwear and smoked a

joint with him. (Vol.23, R1638-1643) Mr. Edenson seemed sad and

talked to Seigel about money troubles. (Vol.23, R1643-1645) Seigel

commiserated with him and offered to help him. Then they decided to

order Chinese food and have it delivered rather than going out to

eat. (Vol.23, R1645) Christopher Gauthier, who worked at China

Palace Restaurant, received a call for take out Chinese at 8:53

p.m. He delivered it around 10:00p.m due to the long distance

between the restaurant and Mr. Edenson's house.. (Vol.24, R1890)

He saw a white truck and a Mercedes in the driveway. (Vol.24,

R1891)

While they were waiting on the food to arrive Seigel testified

that she decided to go find Mr. Trease, although she testified to

no prearranged meeting. (Vol.23, R1645) Seigel lied to Mr. Edenson,

telling him she needed to see a friend at the Columbia, and

then left, walking to ChaCha Coconuts. (Vol.23, R1647-1648) Mr.

Edenson had suggested she walk.

Seigel discovered Mr. Trease sitting at the bar talking to two

Brazilian women. (Vol.23, R1648-1649) This angered her, especially

when Mr. Trease ignored her. (Vol.23, R1649-1650,1778) She became

even more angry when she saw one of the women giving Mr. Trease her

phone number. (Vol.23, R1650) Mr. Trease got up and left the bar

and Seigel followed him. (Vol.23, R1650)

Margarida Wortman and Edjanira Viana were the two Brazilian

women in the bar. (Vol.24, R1945) They recalled meeting Mr. Trease

and talking to him for about 20 minutes. (Vol.24, R1948,1970)

Edjanira gave him her phone number on a piece of paper. (Vol.24,

R1949,1973-1977) The women recalled Seigel coming in because she

was dressed up. (Vol.24, R1950) She seemed very nervous and was

smoking non-stop. (Vol.24, R1950,1978) Seigel did not seem normal.

(Vol.24, R1957) Seigel did not speak to Mr. Trease, but he said he

knew her. (Vol.24, R1951) Mr. Trease said Seigel was the police

according to Wortman. (Vol.24, R1952) When the women left they saw

Mr. Trease and Seigel arguing outside on the street. (Vol.24,

R1953,1984) They saw Seigel push Mr. Trease, but he didn't touch

her. (Vol.24, R1960)

Seigel's story was that she and Mr. Trease argued about

whether or not Mr. Edenson had a safe and whether they should call

the thing off. (Vol.23, R1651,1779) Mr. Trease was also angry

because Seigel had messed things up with the woman in the bar.

(Vol.23, R1651,1780) They continued to argue and Seigel walked

back toward Mr. Edenson's house. (Vol.23, R1653) She turned once

and saw Mr. Trease behind her. (Vol.23, R1653) Seigel also remembered

passing another man who smelled good. (Vol.23, R1654) When

she turned again, she did not see Mr. Trease. (Vol.23, R1783)

Edward Koleck was the man that Seigel passed and thought

smelled good. (Vol.24, R1914) Mr. Koleck lived on North Boulevard

of the Presidents. (Vol.24, R1914) He was walking to the Columbia

on the night of August 17 at around 10:00 p.m. (Vol.24, R1914) He

remembered passing Seigel because she was wearing a very tight

dress, high heels, and had a good build. (Vol.24, R1917) Koleck

saw a man a short ways behind her, with a medium build and long

curly hair. (Vol.24, R1918) Both were walking quickly. (Vol.24,

R1920) Koleck watched for a minute, decided they had had a lover's

quarrel, and went on. (Vol.24, R1921) When he went home at 12:30,

he heard the T.V. on very loudly at Mr. Edenson's home. (Vol.24,

R1922) The next day he learned Mr. Edenson had been killed.

(Vol.24, R1926) Koleck later saw the girl's picture on T.V. and

contacted the police. (Vol.24, R1927)

Seigel knocked on Edenson's door, he answered in a bathrobe,

and she went in. (Vol.23, R1655) Mr. Edenson locked the door and

went back to serving the Chinese food. (Vol.23, R1655) According

to Seigel she again lied to Mr. Edenson, telling him she needed to

get her cigarettes from her truck, when she was really planning to

leave. (Vol.23, R1655) Mr. Edenson unlocked the door for her; and

as he did so, Mr. Trease jumped into the room. (Vol.23, R1657-1659)

Seigel stated that Mr. Trease struck Mr. Edenson in the face,

causing him to fall back and in doing so, Mr. Edenson grabbed Mr.

Trease's shirt. (Vol.23,1659-1660) Mr. Trease continued to strike

Mr. Edenson and Seigel stated she saw gloves on Mr. Trease's hands.

(Vol.23, R1660) Seigel stated she heard Mr. Trease tell Mr. Edenson

that he should kill him for tearing his shirt. (Vol.23, R1662)

Seigel then said Mr. Trease got into one of his karate

positions and got Mr. Edenson down on the floor. (Vol.23, R1662)

Mr. Trease was sitting on Mr. Edenson's back. (Vol.23, R1662) Mr.

Trease was demanding to know where a safe was and Mr. Edenson was

saying that it was at the store. (Vol.23, R1664) Seigel then

claimed that Mr. Trease told her to go to the truck and get the

gun. (Vol.23, R1664) Seigel then acknowledged that she went to the

truck, found the gun, brought it into the house, and claimed she

gave it to Mr. Trease. (Vol.23, R1664-1666)

Seigel claimed she saw Mr. Trease put the gun to Mr. Edenson's

head and heard Mr. Trease ask Mr. Edenson if he wanted to live.

(Vol.23, R1666) Mr Edenson was saying yes. (Vol.23, R1666) Seigel

claimed she looked away, then heard a gunshot.(Vol.23, R1667) She

turned and saw Mr. Edenson trying to get up. (Vol.23, R1667-1668)

Seigel saw blood and then claimed that Mr. Trease told her to bring

him a knife. (Vol.23, R1668) Again, it was Seigel who went to the

kitchen, found a knife in a drawer, and then claimed she took it to

Mr. Trease. (Vol.23, R1668) Seigel said she saw Mr. Trease pull

Mr. Edenson's head back and then she turned away. (Vol.23, R1669)

She saw three movements. (Vol.23, R1670)

Seigel then claimed that Mr. Trease had her search the house

for valuables and help him clean up. (Vol.23, R1671) Seigel testified

that she picked up a bullet, the knife, and a piece of a rubber

glove, and put the things into a bag. (Vol.23, R1672) Wine

glasses with Seigel's prints were also put into the bag. (Vol.23,

R1672) Seigel went with the things to the car and a short time

later Mr. Trease came out. (Vol.23, R1673) Seigel drove off and

Mr. Trease purportedly told Seigel that he had heard Mr. Edenson's

last breath and that he had enjoyed that. (Vol.23, R1674)

Seigel and Mr. Trease returned to Seigel's parent's home.

(Vol.23, R1675) Their clothes were burned in the fireplace. (Vol.

23, R1677) The remaining items, including the knife and a jewelry

box, were placed in a garbage bag, weighted down with a paint can,

and dumped into the river by Seigel's house. (Vol.23, R1674-1680)

Seigel later led police to the bag. (Vol.23, R1740)

After disposing of everything, Seigel got dressed up again and she

and Mr. Trease went to a local bar called Tink's. (Vol.23, R1794)

They had a few drinks and Seigel claimed she went into the bathroom

and cried. (Vol.23, R1796)

Seigel and Mr. Trease then left Bradenton in Seigel's truck.

(Vol.23, R1681) They headed for Pennsylvania, where Seigel was

from. Seigel had already planned a trip to visit an old girlfriend.

(Vol.23, R1781,1731)

Mary Seigel testified that when she returned to Florida on

August 18, she found her house very messy. (Vol.23, R1862) There

were two pieces of metal in the fireplace. (Vol.23, R1862) She

also found some items belonging to Mr. Trease in the house, which

she gave to the police. (Vol.23, R1863)

Seigel testified that the trip to Pennsylvania took several

days. (Vol.23, R1732) According to Seigel, Mr. Trease threatened

her on the way. (Vol.23, R1732) Mr. Trease threatened to kill her

or have someone else do it if she testified against him. (Vol.23,

R1732) He yelled at her when she drove and told her that if they

were stopped, he would kill the cop. (Vol.23, R1733) Mr. Trease

also told Seigel that he would marry her so she couldn't testify

against him. (Vol.23, R1733) He got mad at Seigel when she cried.

(Vol.23, R1735)

Seigel called her mother several times while on the road to

get money. (Vol.23, R1735) According to Mary Seigel, Seigel seemed

nervous on the phone. (Vol.24, R1866) Seigel told her mother that

something bad had happened, she was there, but couldn't prove she

hadn't done anything. (Vol.24, R1870) Seigel said she was in the

wrong place at the wrong time. (Vol.24, R1871) Mary Seigel agreed

to cooperate with the police and wired money to Seigel. (Vol.24,

R1872; Vol.27, R252510-2511) After they arrived at her friend

Heather's house in Pennsylvania, she and Heather were on the way to

pick up some money that was being wired to her when she was

arrested. (Vol.23, R1737-1739,1800)

Heather Tomilson testified that Seigel and Mr. Trease arrived

at her apartment in late August 1995. (Vol.25, R2078) Mr. Trease

had a black handgun and a gun that looked like a tire gauge. (Vol.

25, R2081) Seigel had a stun gun. (Vol.25, R2081) At one point

when Heather and Seigel were alone, Seigel got all red faced and

had a "nervous breakdown" in Heather's kitchen. (Vol.25, R2084)

Seigel said she would never see her family again and that she was

stuck with Mr. Trease for the rest of her life. (Vol.25, R2085)

Heather tried to guess what had happened, and Seigel denied that

murder had been committed. (Vol.25, R2088) According to Heather,

and admitted over objection, Mr. Trease asked Heather if she knew

anyone with a safe that they could rob. (Vol.25, R2099-2100)

The Pennsylvania police, in co-operation with the Sarasota

police, learned that Seigel and Mr. Trease were staying with

Heather. (Vol.25, R2108-2110) They detained Seigel on a witness

warrant while she and Heather were on their way to pick up a wire

from Seigel's mother. (Vol.25, R2111) Seigel told them where to

find Mr. Trease and told them he had a gun. (Vol.25, R2114)

The police went to Heather's residence. When they knocked, no

one answered. (Vol.25, R2113) They entered the apartment with

their guns drawn and Mr. Trease made a lunging motion toward them.

(Vol.25, R2114,2128) When he saw the guns, Mr. Trease stopped and

was detained without incident. (Vol.25, R2115) Mr. Trease told

them where to find the Glock gun. (Vol.25, R2116,2140) Mr. Trease

denied any knowledge of a murder in Sarasota. (Vol.25, R2118,2131)

Mr Trease said he had found the gun behind Seigel's house. (Vol.25,

R2119-2110) Mr. Trease said he had a heart condition and did not

have long to live. (Vol.25, R2121,2132) During the interview, Mr.

Trease was arrested as a fugitive from justice for First Degree

Murder in Florida.

The Edenson home was dusted for prints. (Vol.24, R1995) A

latent shoe print was found on the floor of the home from a deck

type shoe. (Vol.24, R2003; Vol.27, R2406) It was not known if the

shoe print matched a pair of Mr. Edenson's or if it was a female

shoe. (Vol.24, R2045; Vol27, R2410) One palm print belonging to

Seigel was found by the door on the inside. (Vol.24, R2010-2011)

No fingerprints belonging to Mr. Trease were found in the house.

Bullet fragments and the rip of a rubber glove were also recovered.

(Vol.24, R2004) Blood swabbings were taken, but no blood samples

matched Mr. Trease's. (Vol.24, R2008) A blue bag was recovered

from a lake, which contained a safe belonging to David Shorin and

a knife. No prints or blood were found on these items. (Vol.24,

R1032) The FDLE crime lab was unable to determine if the Glock gun

taken from the Tomilson apartment had fired the bullet removed from

Mr. Edenson due to the small size of the fragments recovered. (Vol.

26, R2349,2352) Hair samples could not be compared due to the

short length of the sample from Mr. Trease, who had shaved his head

in the jail upon his arrest. (Vol.26, R2358) However, no black

hairs, the color of Mr. Treases' hair, were found in the vacuumings

and samples obtained from Mr. Edenson's house. (Vol.26, R2367) All

of the DNA samplings done were either determined to be Mr. Edenson's

or inconclusive. (Vol.27, R2397)

Over objection, Deputy Harry Keffer testified that he arrested

Seigel in Pennsylvania. (Vol.26, R2253) He read her her Miranda

rights and she talked to him about the homicide. (Vol.26, R2255)

A taped statement was eventually made. (Vol.26, R2256) Keffer

noted that Seigel was very upset and very emotional on the tape.

(Vol.26, R2257) One sound on the tape is that of Seigel shredding

paper towels. (Vol.26, R2258) Over objection the taped interview

was played to the jury. (Vol.26, R2262-2319)

Becky Bishop testified over objection that she was employed as

a massage therapist and knew Mr. Trease. (Vol.25, R2226) They had

met at a restaurant in October 1994. (Vol.25, R2228) They dated for

a month and Mr. Trease wanted to marry her. (Vol.25, R2230) She

was given a ring (Vol.25, R2230) Mr. Trease told her he worked in

law enforcement. (Vol.25, R2231) Bishop related how she observed

Mr. Trease practicing karate moves. (Vol.25, R2231) At one point

Mr. Trease said they could make a lot of money if she had rich

clients. (Vol.25, R2234) A mistrial was requested and denied.

(Vol.25, R2235)

Over objection, Jeffery Colson testified that he was from Las

Vegas, Nevada. (Vol.27, R2440) He knew Mr. Trease a couple of

years before in a business context. (Vol.27, R2440) He had dinner

at Mr. Trease's house several times. (Vol.27, R2441) Mr. Colson

had observed Mr. Trease perform some martial arts moves and Mr.

Trease had told him that he had a black belt in Karate. (Vol.27,

R2442) The moves were visually stunning. (Vol.27, R2442) Mr.

Trease also demonstrated proficiency with knives and showed Mr.

Colson handmade knives of superior craftsmanship. (Vol.27, R2443)

Mr. Trease demonstrated how someone's throat might be cut with two

people standing face to face. (Vol.27, R2444-2445)

Over objection, Bridgett Berousek testified that in the early

part of 1995 she dated Mr. Trease. (Vol.27, R2449) Their relationship

ended in May. (Vol.27, R2450) In March, Mr. Trease had asked

her if she knew anyone with safe, drugs, or valuables that they

could steal. (Vol.27, R2451) Berousek would also see Mr. Trease do

karate moves in the house they were living in together. (Vol.27,

R2451) As part of a proffer outside the jury, Berousek testified

that she did have one occasion to deal with Seigel when Seigel came

to where she worked to talk to her. (Vol.27, R2455) Seigel was

upset and angry. (Vol.27, R2455)

Deputy Ralph Robinson interviewed Mr. Trease in Pennsylvania.

(Vol.27, R2487) Mr. Trease agreed to talk and told Robinson the

route he and Seigel had taken to Pennsylvania. (Vol.27, R2489) On

the evening of the murder, Mr. Trease said he had stayed up late

the night before and had not gotten up until about 8p.m.. (Vol.27,

R2490) Seigel and he spent the evening at the residence. (Vol.27,

R2491) Mr. Trease did not think he had been around St. Armand's

Circle on the night of the murder. (Vol.27, R2492) Mr. Trease

stated he owned no guns, but had found the Glock by the Seigel's

pool. (Vol.27, R2493)

On August 26, in another interview, Mr. Trease indicated that

he was taking medication for his heart. (Vol.27, R2499) He also

indicated that on the night of the murder, Seigel may have gone out

on a date with a "john". (Vol.27, R2500)

Detective Wildtraut also interviewed Mr. Trease with his consent.

(Vol.27, R2513) Mr. Trease claimed he had some memory loss

caused by his medication. (Vol.27, R2513) Mr. Trease repeated the

route he and Seigel took to Pennsylvania. (Vol.27, R2515) Mr.

Trease denied owning weapons, but said that Seigel owned a nine

millimeter handgun, a Taser stun gun, and a pen gun. (Vol.27,

R2517) Mr. Trease said he knew the victim because he had once

tried to sell a car through him, but that was the only contact.

(Vol.27, R2518) Mr. Trease said he wanted to cooperate and would

speak with the detectives in Florida when he was returned there.

(Vol.27, R2519)

Before his return to Florida, Mr. Trease asked to speak to

Seigel. He stated that she was only 24, had a child, and did not

need to go to prison for the rest of her life. (Vol.27, R2520) Mr.

Trease said he might have to take the fall for her. (Vol.27, R2520)

In Florida, Mr. Trease inquired about Seigel's charges and

said he didn't want her charged with anything. (Vol.27, R2521) He

said she had killed no one. (Vol.27, R2521) Mr. Trease said that

he did not kill Mr. Edenson, but that he didn't care what happened

to him. (Vol.27, R2522)

On September 18, Mr. Trease again requested an interview. He

told Detective Wildtraut that he didn't kill Mr. Edenson, and that

if he had done so, he would not have been so stupid as to leave a

witness. (Vol.27, R2524) He asked if the murder weapon had been

found, indicated he did not care what happened to Seigel, and that

she could fry for what she had done to him. (Vol.27, R2524)

Dr. Daniel Sprehe testified that the medications Mr. Trease

was taking were tranquilizers and analgesics. (Vol.27, R2536) They

are not heart medication. (Vol.27, R2537)

Lieutenant Gordon Hoffmeister testified concerning the use and

capabilities of stun guns. (Vol.27, R2545-252550) He examined

Seigel's stun gun. (Vol.27, R2550) The gun was operational, but

left no effect when it was used. (Vol.27, R2552)

The following evidence was presented by the defense:

Rebecca Bostic was the bartender at Tink's bar on August 17,

1995. (Vol.28, R2571) She recalled Mr. Trease and Seigel coming

into the bar around 12:30 and leaving around 1:30 a.m. (Vol.28,

R2573) They were well dressed and the women appeared to be under

the influence of alcohol when they arrived. (Vol.28, R2573-2574)

The girl went to the bathroom several times, but never appeared to

have been crying. (Vol.28, R2575) The girl looked cool and calm

and the man did not look like he had been involved in a bloody

fight. (Vol.28, R2581)

Heather Ciambrone, a inmate at the jail with a pending first

degree murder charge, was called by the State. She invoked the

Fifth Amendment and did not testify. (Vol.28, R2584-2586)

Janene Silkwood testified that she shared a cell with Seigel

and the two became very close friends. (Vol.28, R2597) While they

were friends, Seigel told Silkwood that she had killed Mr. Edenson

by herself. (Vol.28, R2597) She claimed to have slashed his throat

three times. (Vol.28, R2598) Seigel said that she had used a stun

gun on him after he began to make unwanted sexual advances. (Vol.

28, R2599) Seigel said she tricked Edenson into lying on the floor

by promising to play a sexual game, stunned him, and then shot him.

(Vol.28, R2599) Because he was still moving, she slashed his

throat. (Vol.28, R2599) Seigel claimed the eyeball came out and

she had to be careful she didn't step on it in her heels. (Vol. 28,

R2601) Seigel claimed they'd never believe she did it because of

her size. (Vol.28, R2601) Seigel was laughing and carefree when

she described the murder. (Vol.28, R2604)

Seigel had also told Silkwood earlier that Mr. Trease killed

Mr. Edenson in front of them and that it was a Mafia hit. (Vol. 28,

R2600) Initially, Seigel had told a story consistent with her

trial testimony. (Vol.28, R2611)

At one point Seigel and Silkwood had a falling out and were no

longer friends. (Vol.28, R2601-2602,2612) Silkwood had never met

Mr. Trease. (Vol.28, R2604) She did send him a letter after she

and Seigel were no longer friends because she felt that it was not

fair what Seigel was doing. (vol.28, R2604)

Tonya Sterling was another inmate at the jail and shared a

cell with Seigel. (Vol.28, R2641) Seigel told Sterling that her

hand was on the gun and her finger was on the trigger, but that Mr.

Trease had physically made her pull the trigger. (Vol.28, R2642)

Sterling stated she didn't talk much to Seigel about her case.

(Vol.28, R2650) Seigel did claim that everything she did, Mr.

Trease made her do. (Vol.28, R2651)

Dr. Cynthia Bailey testified that she treated Seigel following

her car accident in 1992. (Vol.28, R2673) Dr. Bailey is a psychologist.

(Vol.28, R2673) Seigel came because she was having temper

control problems, was under stress, and feeling very emotional.

(Vol.28, R2673,2675) Bailey also noted that Seigel had an IQ of

82, or low average. (Vol.28, R2674)

PENALTY PHASE

Penalty phase began on December 16, 1996. (Vol.30) Mr. Trease

was not present at his request. (Vol.30, R2827-2866)

The State introduced into evidence copies of judgments and

convictions of Mr. Trease's prior record. (Vol.30, R2895) In one,

Colleen Harmon was robbed at gunpoint while working at the Sands

Motel. (Vol.30, R2896)

Edward Beran testified that on January 7, 1981, his son was

accosted at gun point by three men in the family garage. (Vol.30,

R2898) The men came in the house, tied up the family, and Mr.

Trease told the others to shoot Mr. Beran's wife because she was

screaming. (vol.30, R2895) Mr. Beran was pistol whipped by Mr.

Trease. (Vol.30, R2900) One necklace was taken. (Vol.30, R2901)

Karen Sherman testified that in 1981 she was accosted by Mr.

Trease. (Vol.30, R2905) He followed her into the underground and

hit her in the face. He tried to take her jewelry. (Vol.30, R2905)

As a result of the beating, Ms. Sherman has had three surgeries on

her lips with one more scheduled. (Vol.30.R2907)

The defense presented the following:

Corrections Officer Robert Owen testified that Mr. Trease had

never caused a problem during his incarceration in the county jail.

(Vol.30, R2913) He acted as a peacemaker within the cell. (Vol.30,

R2914) Corrections Officer Michael Davino testified that Mr.

Trease has adjusted well to being incarcerated. (Vol.30, R2921)

When one cellmate tried to commit suicide, Mr. Trease alerted the

guards and helped to save the man. (Vol.30, R2923)

Lorraine Mendyk lives in Michigan. (Vol.30, R2930) She lived

next door to the Trease family when Mr. Trease was a child, probably

from 1956 through 1959. (Vol.30, R2931) During the day she

would babysit the Trease children. (Vol.30, R2931) There were four

children, three older girls, Mr. Trease, and one younger girl.

(Vol.30, R2932) The father was a fireman. He was always drunk

when he was at home. (Vol.30, R2933)

Mrs. Mendyk observed signs of physical abuse on two of the

girls, Carol and Linda, and on Mr. Trease. (Vol.30, R2933) She saw

strap marks on their backs and, at least once or twice a week,

would hear the children screaming in the house at night when the

father was home. (Vol.30, R2934) In the spring and summer when the

windows were open she could hear the children being beaten. (Vol.

30, R2934) The children were fed the same food for all their meals

everyday: oatmeal for breakfast, peanut butter sandwiches for

lunch, and goulash for dinner. (Vol.30, R2934) The father was the

meanest man Mrs. Mendyk had ever seen. (Vol.30, R2934)

The children were frightened around their father. (Vol.30,

R2936) They didn't know what would trigger him. (Vol.30, R2937)

No police were ever involved and never were called because in that

time that was just not done. (Vol.30, R2939) Mrs. Mendyk knew of

no intervention available during that time. (Vol.30, R2940) Mrs.

Mendyk last saw Robert in 1962. (Vol.30, R2936)

Carol Rutowski is Robert's sister and the oldest of the

children. (Vol.31, R2955) Carol recalled living next door to Mrs.

Mendyk and that she was their babysitter. (Vol.31, R2957) Linda

Peltier is also Robert's sister. (Vol.31, R2990) They both testified

as to the conditions of their and Robert's childhood. (Vol.31)

Carol testified that when she was a child her father worked as

a fireman. (Vol.31, R2958) He would be gone for two or three days

at a time, then home for three days. (Vol.31, R2958) When he was

home he would beat the children every day. (Vol.31, R2958) Linda

recalled praying every day that she would come home and her father

would be dead. (Vol.31, R2991)

Carol stated that if the children misbehaved while the father

was away, when he returned he would get them out of bed. (Vol.31,

R2959) The children would be forced to take off their clothes and

then would be beaten naked with a strap he wore with his uniform or

a braided dog leash. (Vol.31, R2959,2991) The children would be

lined up, forcing them to watch the others being beaten. (Vol.31,

R2960) These beatings usually took place in the children's bedroom.

(Vol.31, R2960)

The father would also beat the children in his bedroom. (Vol.

31, R2931) The naked children were tied on the bed to the bedposts

and then beaten from the neck down. (Vol.31, R2961)

As the children got older, the location of choice for the

beatings became the basement. (Vol.31, R2961) The basement had

beams across the ceiling. (Vol.31, R2961) The children would be

stripped, their hands tied with a rope that was then thrown over

the ceiling beam, and the suspended children were beaten. (Vol.31,

R2961,2992) All of the children watched the others being beaten in

this fashion. (Vol.31, R2961) The children were beaten for such

things as leaving roll marks on a tube of toothpaste. (Vol.31,

R2974-75,3002) The children would scream and cry while being

beaten, although Robert stopped as he got older. (Vol.31, R2975,

2994) The abuse continued until the children left home. (Vol.31,

R2977,3001)

The father drank all the time he was home, he was always

drunk. (Vol.31, R2962,2993) When he drank he would often require

the children to sit naked at the table with him. (Vol.31, R2962)

He would use a pointer and point out their body parts. (Vol.31,

R2962) Robert was often included in this. (Vol.31, R2962) When

the father was drunk at night, he would sexually molest the children.

(Vol.31, R2963)

Carol testified that her father tried to "bother" her. (Vol.

31, R2963) Robert would come and try to help her. (Vol.31, R2964)

Linda was also sexually abused. (Vol.31, R2979,2995) The sexual

abuse began when she was seven and occurred all the time. (Vol.31,

R2995-2996) Robert knew of this and couldn't stand it. (Vol.31,

R2979)

The father often told Robert that he was not his child, but

rather the child of his uncle. (Vol.31, R2964,2997-2998) Robert

was often sent into his mother's bedroom. (Vol.31, R2964,2997) The

father would tease Robert about the size of his penis. (Vol.31,

R2964,2997) At one point their father decided to teach Robert how

to defend himself. (Vol.31, R2966) He bought two sets of boxing

gloves and would order Robert to fight him. (Vol.31, R2967) Robert

would cry and the father would just beat and punch him, trying to

make him fight. (Vol.31, R2967) Another time Robert was caught

smoking. (Vol.31, R2973) The father made the girls watch while he

forced Robert to drink beer and smoke cigarettes until he vomited.

(Vol. 31, R2973-2974)

Robert had a bed wetting problem that occurred every night

until he was around 9. (Vol.31, R2971) On days the father was

not home, the children would get up early and wash the wet sheets

so they would not be found. (Vol.31, R2972) If the sheets were

discovered, Robert would be beaten. (vol.31, R2972) The bathroom

was located where the children would have to pass by their father

at night, so none of them wanted to go. (Vol.31, R2971) They would

urinate onto clothes, then hide them. (Vol.31, R2971)

One time their father made the children beat him. (Vol.31,

R2969,2998) He said if they didn't do it, he would beat them.

(Vol.31, R2969) The children cried and didn't want to do it, but

they did. (Vol.31, R2969-2970)

The children were not allowed to have friends outside the

family. (Vol.31, R2965) Their father would try to hypnotize them

and the children would pretend that it worked. (Vol.31, R2966) He

would wash their hair in beer and egg. (Vol.31, R2971) On one

occasion he put all their heads in a dirty diaper pail because they

had not cleaned it well enough. (Vol.31, R2974,3000)

The father also beat their mother. (Vol.31, R2975,2994) The

children would be awakened by the sound of the strap hitting their

mother's skin. (Vol.31, R2976,2994) Robert would want to go defend

his mother and kill their father. (Vol.31, R2976) It took three of

the girls to hold him down. (Vol.31, R2976) Their father also

slept with a gun and one time shot their mother in the arm. (Vol.

31, R2979,3003) Robert, then a teenager, took his mother to the

hospital. (Vol.31, R2980)

Their father died in 1972. (Vol.31, R29 ) Robert at one time

went and urinated on the grave. (Vol.31, R2980)

Robert ran away from home as a teenager. (Vol.31, R2970,3005)

As a young child, he once locked himself in the car with a knife

and threatened to kill himself if his father ever touched him

again. (Vol.31, R2980) When he was older, Robert once took his

father to the ground and threatened to kill him if the abuse did

not stop. (Vol.31, R2981,3004) However, the abuse did not end.

(Vol.31, R2981)

Carol knew that Robert had one child named Marissa. (Vol.31,

R2981) She was sixteen and lived in Milwaukee. (Vol.31, R2981)

Carol had finished high school and held down a job. (Vol.31,

R2987) She has not been convicted of any violent crimes. (Vol.31,

R2987) Her contact with Robert ended in 1972 when the father died.

(Vol.31, R2987) Robert has limited contact with his child. (Vol.

31, R2988)

SENTENCING

Mr. Trease appeared for sentencing on January 22, 1997. Both

the defense and State submitted memorandums regarding sentencing.

The court found the following aggravators: that Mr. Trease had

been previously convicted of a felony involving force or violence;

the capital felony was committed while Mr. Trease was engaged in

the commission of a burglary or robbery; the capital felony was

committed to avoid or prevent a lawful arrest; and the capital

felony was especially heinous, atrocious, and cruel. (Vol.31,

R3088-3093) The court found in mitigation that Mr. Trease had

adjusted well to incarceration and that he assisted in the prevention

of the suicide of another inmate. (Vol.31, R3093) The court

stated it gave these factors little or no weight. (Vol.31, R3093)

The court found that Mr. Trease was abused as a child on occasions

to numerous to recount. (Vol.31, R3093) This factor was given

considerable weight. (Vol.31, R3094) The court recognized the

disparate sentence received by Seigel and gave that factor little

weight. (Vol.31, R3094)

The court stated after giving consideration to each of the

mitigating and aggravating factors and after giving the jury recommendation

great weight, he sentenced Mr. Trease to death. (Vol.31,

R3094-3095) Mr. Trease also received a life sentence, consecutive

to the death sentence on the remaining charges. (Vol.31, R3095)

SUMMARY OF THE ARGUMENT

The trial court, based upon the facts in this case, erred in

failing to appoint a second attorney to assist in the defense in

this case. This error was further compounded by the difficulties

which arose between appointed counsel and Mr. Trease.

The trial court erred in denying both Mr. Trease's and counsel's

request that counsel be allowed to withdraw from representing

Mr. Trease and that another lawyer be appointed. New counsel was

necessary where conflicts between the two rose to the level that

counsel was unable to provide effective assistance of counsel.

The trial court in the admission of the testimony of the codefendant,

Seigel. Initially, the trial court impermissibly limited

the cross-examination of Seigel regarding her employment, drug

usage, and prior suicide and psychiatric hospitalizations. This

evidence was critical to the presentation of Mr. Trease's defense

and completely precluded him from showing the bias, prejudice, and

motive of Seigel in testifying. The jury was wholly deprived of

crucial facts by which they should have judged the crediblilty of

the State's key witness.

The trial court further erred in allowing the State to improperly

buttress the testimony of Seigel by allowing the State to

admit into evidence a prior consistent statement made by Seigel to

the police which the State claimed was admissible to rebut a

defense claim of recent fabrication. There was no basis for this

exception and the prejudice resulting from the admitting of the

statement was further enhanced by the use of a police officer as

the vehicle for the admission of the evidence.

The trial court erred in permitting the admission of improper

character evidence against Mr. Trease regarding prior ownership of

knives and demonstration of defensive tactics using a knife several

years before the murder, prior false statements he made to various

women about being a police officer and about using Vicodin and

Valium as medication for a heart condition. There was no basis for

the admission of this evidence, it was not relevant to any material

fact in issue, and served only to portray him as a liar.

The court erred as well in the improper admission of Williams

rule evidence concerning the alleged solicitations by Mr. Trease of

other women to help him commit burglaries by providing him with the

names of people or places where safes or money might be obtained.

The evidence had little to no probative value, it’s prejudicial

impact was great, and was not relevant to any material fact in

issue. It's sole purpose was to portray Mr. Trease a bad person

with a propensity to commit crime.

The trial court erred in preparing an ambiguous sentencing

order with respect to the mitigation concerning Mr. Trease's

adjustment to incarceration where he assigned little or no weight

to that factor.

The trial court erred in finding the aggravating factor of the

murder being committed to avoid arrest applied in this case where

there was the probability that the homicide occurred in a fit of

anger due to the thwarted robbery and the tearing of Mr. Trease's

shirt.

ARGUMENT

ISSUE I

THE TRIAL COURT ERRED IN DENYING

COUNSEL'S REQUEST TO HAVE A SECOND

ATTORNEY APPOINTED TO ASSIST IN THE

DEFENSE OF MR. TREASE.

On November 3, 1995, defense counsel Mercurio filed a motion

with the trial court requesting that a second attorney be appointed

to assist in the defense. (Vol.1,C58-59) Mercurio expounded upon

his request at a hearing on November 15, 1995 before Judge Rapkin.

(Vol.12, R-23) Mercurio named the attorney he wished to work with

and told the court a second attorney was necessary because this was

a death case. (Vol.12, R14) Mercurio advised the court that the

second attorney had experience he, himself, did not possess, that

a second attorney was one of the standards promulgated by the American

Bar Association, and the second attorney would concentrate on

the penalty phase. (Vol.12, R15) Mercurio stated that this would

allow better rapport with the jury and maintain a greater degree of

credibility with them. (Vol.12, R15,17-18

The county attorney was present at the hearing and objected to

the appointment. They simply did not wish to pay for more than one

attorney. (Vol.12, R19)

Judge Rapkin opined that he didn't know where the "trend came

from to have two lawyers" (Vol.12, R14) and noted that these cases

already have a lot of expenses. Judge Rapkin dismissed the idea of

credibility problems with one lawyer with the jury, was concerned

that there would be duplication of hours spent on the case, and

feeling that the trend was going to be toward allowing only one

lawyer anyway, denied the request. (Vol.12, R20)

The "trend" has not gone the way Judge Rapkin felt it would.

Nor should such a critical issue be dismissed lightly as "trendy"

or "too expensive". Prior to Gideon v. Wainwright, 372 U.S. 335,

9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), there were most certainly

those who argued that the idea that one lawyer was necessary in a

criminal case was a trend certain to go nowhere.

Currently this Court is considering the adoption of a new rule

of Judicial Administration in Capital Cases. In Re: Proposed

Amendment to Florida Rules of Judicial Administration- Minimum

Standards for Appointed Counsel in Capital Cases, 22 Fla. Law

Weekly S407 (Fla. July 3, 1997) Under Section G, "A court must

appoint lead counsel and co-counsel to handle every capital trial

in which the defendant is not represented by retained counsel or

the public defender." Comments to the proposed rule are currently

being accepted. However, it is clear that the trend is not to

continue with only one lawyer in capital cases. Obviously, it is

recognized that the sheer volume, complexity, and time demands of

capital cases require the skills and talents of two qualified

attorneys.

Although there is no constitutional right that a second attorney

be appointed, it is a matter within the trial court's discre-

tion based upon a determination of the complexity of the case and

the attorney's effectiveness therein. See, Armstrong v. State, 642

So. 2d 730 (Fla. 1994). In this case it was an abuse of discretions

for the trial court to deny the request for a second attorney

to focus on penalty phase. The trial in this case lasted over

three weeks, including the penalty phase. significant numbers of

witnesses were located out of state -- all the family of Mr.

Trease, as well as the police and other witnesses, were located in

Pennsylvania. The trial court's concerns about duplication of

effort during depositions was a simple situation which could have

been resolved between the two attorneys handling the case, it was

certainly not sufficient grounds upon which to deny the request.

The conflicts of interest between Mr. Trease and Mercurio further

created a need for a second attorney. Mr. Trease should receive a

new trial with two, conflict-free attorneys appointed to represent

him.

ISSUE II

THE TRIAL COURT ERRED IN REFUSING TO

APPOINT DIFFERENT COUNSEL TO REPRESENT

MR. TREASE.

A substantial conflict of interest arose between Mr. Trease

and court-appointed counsel. The trial court erroneously denied

both counsel and Appellant's requests to have a different lawyer

appointed to represent Mr. Trease.

The trial court was first appraised of the problems, according

to the record, on September 6, 1996, when Mr. Trease filed a motion

to dismiss Mercurio and a second motion seeking to have another

attorney, Ben Kay, appointed to represent him. (Vol.2, C242-246)

On September 12, 1996, Mr. Trease filed an emergency supplement to

the motion to dismiss counsel. (Vol.2, C258-264) In these motions

Mr. Trease alleged that Mercurio had told him he would work harder

for an innocent client and that the mitigation specialist employed

by Mercurio had told his family that he would be found guilty.

(Vol.2, C242-243) Mr. Trease advised the court that he had spoken

with attorney Ben Kay and Kay was willing to represent him. (Vol.2,

C245) In the emergency supplement, Mr. Trease alleged that

Mercurio had breached the attorney-client privilege, was refusing

to listen to Mr. Trease regarding how he wished to proceed with his

case, and had refused to request a change of venue. (Vol.2,C258-

260)

At the first hearing on this request Mr. Trease again stated

his desire to be represented by Ben Kay. (Vol.13, R63) Mr. Trease

did not believe that Mercurio felt he was innocent and would work

hard for him. (Vol.213, R64-66) Mr. Trease also explained that at

Mercurio's request he had given him lists of things that he felt

were important, such as people to interview, and that had not been

followed through on. (Vol.13, R67)

Mr. Trease was also concerned that the only thing Mercurio

wanted was for him to plead to life. (Vol.13, R68) Mr. Trease felt

the plea was being shoved down his throat by Mercurio and the mitigation

specialist, Ms. Petty. (Vol.13, R69) Mercurio told him that

he believed he would be found guilty if he went to trial and would

be sentenced to death. (Vol.13, R70) Mr. Trease also advised the

court that he had written letters to the Florida Bar. (Vol.13, R73-

74)

Mercurio agreed that he had had a conversation with Mr. Trease

about whether he would work harder for and innocent person, a 100%

innocent person. (Vol.13, R76) Mercurio believed that Mr. Trease

was taking his response out of context. (Vol 13, R76) Mercurio

denied breaching the attorney-client privilege and neither did the

Bar feel that he had done so. (Vol.13, R77,80)

The trial court found no ethical violation or ineffectiveness

by Mercurio and denied the request. (Vol.13, R89-90) The court

asked Mr. Trease if he wished to represent himself, to which Mr.

Trease responded "No". (Vol.13, R91)

Mr. Trease again moved to dismiss Mercurio on September 30,

1996. (Vol.2, C284-295) In this motion Mr. Trease stated that

Mercurio had told employees of the Sheriff's office that he was

guilty. (Vol.2, R285) According to the motion, Mercurio told the

mitigation specialist in the presence of a jail guard that he had

never had an innocent client, that he just tried to prove them

innocent, and that Appellant was guilty too. (Vol.2, C287)

Mercurio filed a Motion to Withdraw on October 7, 1996. (Supp.

Vol., C2407-2410) In it Mercurio denied making the statements to

sheriff's employees, yet stated that the attorney-client relationship

had completely broken down, they did not trust each other, and

that it was in the best interests of everyone to grant the request

for a different attorney. (Supp.Vol., C2409-2410)

The court conducted a sealed hearing on the motions on October

7, 1996. (Vol.13, C303-309) Mercurio told the court during the

hearing that he and Mr. Trease were at such opposite points of view

as to how the case should be handled that problems would just continue

to develop. (Vol.2, C304) Mercurio stated he did not believe

it was in the interest of justice or Mr. Treases's best interest

for him to continue his representation. (Vol.2, C306) Mr. Trease

stated that he believed that if the trial was conducted the way

Mercurio wanted to, he would be found guilty. (Vol.2, C307) The

motion to withdraw was denied. (Vol.13, R111)

A portion of the hearing was also conducted in open court.

(Vol.13, R97-112) At this hearing Mr. Trease stated that the name

of the person whom Mercurio had made comments to was Officer Clay.

(Vol.13, R97) Mercurio told the court that two bar complaints had

been filed, that Mr. Trease was doing things against his advice

such as talking to the media, and still seeking to dismiss him.

(Vol.13, R99) Mercurio believed there was no way for them to

effectively work together. (Vol.13, R100)

Officer Clay was brought to the court room. He stated he

recalled the conversation that Mr. Trease had reported. (Vol.13,

R104) Officer Clay stated the conversation was not directed at

him, but that he, Mercurio, and Cheryl Pettry were in an elevator

going to the fourth floor in the jail. (Vol.13, R104) Clay knew

they were going to see Mr. Trease. (Vol.13, R104) Officer Clay

heard Mercurio say that he did not believe that many of his clients

were innocent, he felt most of them were guilty. (Vol.13, R104)

Clay thought that Mercurio was also referring to Mr. Trease because

he knew of Mr. Trease's concerns regarding Mercurio. (Vol.13, R104-

105) There was no specific mention of Mr. Trease. (Vol.13, R106)

The court denied the motion to discharge because the comments

were not specific to Mr. Trease. (Vol.13, R109) The court asked

Mr. Trease if he wanted to represent himself. (Vol.13, R109) Mr.

Trease asked if he did, could he have a lawyer as co-counsel. (Vol.

13, R109) The court said he could not unless he hired one. (Vol.

13, R109) Mr. Trease stated that he did not wish to represent

himself at this time. (Vol.13, R110)

On October 9, 1996, Mr. Trease filed a Second Emergency Motion

to Dismiss Court Appointed Counsel. (Vol.2, C334-341) In it he

asked the court to reconsider the prior day's ruling.

On October 10, 1996, copies of the Bar's request to Mercurio

regarding Mr. Trease's complaint, and a lengthy reply from Mercurio

were filed. (Vol.2, C346-352) In the letter to Mr. Trease, Mercurio

stated he had been informed that Mr. Trease did not wish to speak

to him again and that he had requested a hearing on October 10.

(Vol.2, C351) Mercurio provided case law regarding self-representation

to Mr. Trease. (Vol.2, C351)

Mr. Trease then filed a motion requesting a Nelson hearing.

(Vol.2, C353-363)

The court held a hearing on October 10, 1996. (Vol.213, R114)

Mr. Trease said he did not wish to represent himself, but he

believed that he was entitled to another lawyer if Mercurio was

ineffective. (Vol.13, R117) Mr. Trease said that felt that

Mercurio had admitted that he could not be effective. (Vol.13,

R117-118) The request was again denied. (Vol.13, R121-122)

Mr. Trease then filed a Notice of Appeal with the Second

District Court of Appeal. (Vol.2, C373) The trial court quashed

the Notice of Appeal, it was re-instated by the Second District,

and eventually dismissed for lack of jurisdiction. (Vol.2, C378-

380)

On November 8, 1996, Mr. Trease filed a Second Emergency

Motion to Dismiss Counsel. (Vol.3,C486-495) In this motion Mr.

Trease again stated he felt that Mercurio had acted in an unethical

fashion, alleged counsel was failing to obtain certain witness

interviews, failing to pay the private investigating firm, and

alleged he had other witnessers to attest to counsel making statements

that he believed that Mr. Trease was guilty, and had requested

a Koon inquiry where none was required. (Vol.3, C486-495) The

record reflects that counsel had filed a motion requesting a Koon

hearing on October 30, 1996. (Vol.3, R451-453) Several days later

Mr. Trease filed a letter with the court asking that this request

and three others relating to the Koon inquiry be disregarded. (Vol.

3, C504) No hearing was held on these motions.

At a hearing on the Koon motion on October 31, 1996, Mr.

Trease advised the court that he was not a death volunteer. (Vol.

13, R134) Mr. Trease did state that he had told counsel that he

would not allow the presentation of any mitigating evidence from

his family. (Vol.13, R133-134) Counsel acknowledged that he had

found mitigation from the family. (Vol.3, R132,135-137)

Initially, Appellant acknowledges that the courts have ruled

that a criminal defendant is not entitled to a "meaningful" relationship

with his attorney. Morris v. Slappy, 461 U.S. 1, 14, 103

S. Ct. 1610, 75 L. Ed. 2d 610 (1983). However, the law is clear

that a criminal defendant is entitled to effective assistance of

his court-appointed lawyer. Substantial deterioration of the

attorney/client relationship can result in a situation where

counsel cannot give effective aid in the presentation of a defense.

Sanborn v. State, 474 So. 2d 309, 314 (Fla. 3d DCA 1985).

A criminal defendant is also entitled to conflict-free

counsel, and a defendant must establish that an actual conflict

adversely affected his lawyer's performance. See, Bouie v. State,

559 So. 2d 1113, 1115 (Fla. 1990), quoting, Cuyler v. Sullivan, 446

U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)) The party

seeking the withdrawal bears the burden of demonstrating that substantial

prejudice will result if withdrawal is not allowed.

Schwab v. State, 636 So. 2d 3, 5-6 (Fla. 1994).

The factors surrounding the comments made in the elevator by

defense counsel which were overheard by Officer Kay to the effect

that most all of Mercurio's clients were guilty were of a sufficient

nature to create an actual conflict of interest between

Mercurio and Mr. Trease. This confirmed statement combined with

Mercurio's statements concerning the amount of work performed for

innocent clients as opposed to guilty ones creates the probability

that performance was affected.

Mercurio admitted in his motion to withdraw that the conflicts

between he and Mr. Trease had reached the level that any attorneyclient

relationship was impossible, that his effectiveness would

certainly be in question, and that is was in the interest of justice

to appoint a different attorney. While Mercurio claimed that

the problems were Mr. Trease's fault, Mr. Trease was in arguable

way responsible for Mercurio's foolish statements in the elevator.

Thus, it cannot be said that the disintegration of the relationship

was largely the cause of Mr. Trease. See, Bowden v. State, 588 So.

2d 225 (Fla. 1991) Thus, it was an abuse of discretion for the

trial court to deny both Mercurio and Mr. Trease's requests that he

be represented by someone else. A new trial is required with counsel

other than Mercurio being appointed to represent Mr. Trease.

ISSUE III

THE TRIAL COURT ERRED IN THE ADMISSION

OF THE TESTIMONY AND PRIOR CONSISTENT

STATEMENTS OF THE CO-DEFENDANT,

HOPE SEIGEL.

Hope Seigel was, by her own admission, the only witness who

could provide any direct evidence which placed Mr. Trease at the

home of Paul Edenson.(Vol.23, R1803) It was only the testimony of

Hope Seigel which implicated Mr. Trease in the homicide. Grave

errors were made by the trial court in the admission of the testimony

of Seigel. These included improper limitations on the ability

of the defense to impeach her character and present an accurate

portrayal of her to the jury and the admission of a prior consistent

statement that she had given upon her arrest to the Pennsylvania

police. The jury was presented a sanitized picture of Seigel

as a victim which had little basis in fact.

The jury was informed by Hope Siegel that she was a single

mother who dated Robert Trease. Seigel had suffered some memory

loss as the result of an auto accident. On the day of the homicide

she had a drink or two, maybe a Valium or Vicodin. Against her

will, she was forced by Mr. Trease to arrange a date with Paul

Edenson for the purpose of finding out if there was a safe at his

house. According to Seigel, she was forced to meet Edenson and

then became a horrified witness to his murder at the hands of Mr.

Trease.

The only problem with this testimony is that, because of the

omissions, it was essentially a lie. The real Hope Seigel was not

recognizable from her trial appearance due to the improper granting

of the State's Motion in Limine.

A. THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION IN

LIMINE,THUS PROHIBITING THE DEFENSE FROM PRESENTING A

DEFENSE

Following the deposition of Hope Seigel, the State filed a

motion in limine seeking to sanitize their star witness. (Vol.5,

C509-510) Hope Seigel was far from the poor little manipulated

girl the State presented to the jury and upon whose testimony the

State's case hinged. In reality, according to her own admissions

at her deposition, Seigel was far from naive and with ample motive

of her own to kill Paul Edenson.

According to Seigel in her deposition, in 1994, she began

working for an escort service owned by her friend Holly. (Vol.6,

C1003-1007) Seigel also began to work at a lingerie shop as a

"model". (Vol.6, C1008) As part of her job as an "escort" Seigel

would meet with the men who would call the service, dance with the

dates, perform oral sex and engage in sexual intercourse with these

men for money. (Vol.6, C1013) Group sex with Holly and the client

was also engaged in by Seigel. (Vol.6, C1014-1015) Seigel was

paid a hundred dollars, per act, in cash. (Vol.6, C1015)

As a lingerie model at various establishments Seigel would

dance and strip off her lingerie for the male customers. (Vol.6,

C1019) Seigel would masturbate the customers. (Vol.6, C1031-1032)

During this employment Seigel became involved with a man named Don

Lambert, with whom she had sex with for money. (Vol.6, C1021) It

was during this period Seigel met Mr. Trease as well. She quit her

lingerie job to open her own escort service, advertised in the

newspaper as "Lucious Lucinda". (Vol.5, C1025-1026,1037-1038) She

had also previously advertised as an escort under the name "Dancing

Beauty". (Vol.6, C1027-8) Even after beginning her relationship

with Mr. Trease, Seigel continued to have sex with Don Lambert, and

presumably others, for money. (Vol.6, C1029-1030, Vol.7, C1289)

Seigel also obtained a rented car from Lambert. (Vol.6, C1120)

She and Mr. Trease damaged the car in an argument, but Seigel

falsely reported a robbery to the police. (Vol.6, C1123; Vol.7,

C1299-1302)

Seigel went with Mr. Trease to Biloxi, Mississippi to gamble,

but ended up calling Lambert for money to come home on. (Vol.6,

C1102; Vol.7, C1290) During this time period she willingly committed

burglaries with Mr. Trease to obtain money for drugs. (Vol.6,

C1105-1109,1115-1116)

Seigel was a heavy user of cocaine during this period. (Vol.6,

C1040-1041) She described herself as an addict who used coke on a

daily basis. (Vol.6, C1042) While she and Mr. Trease used drugs

together, it was Seigel who would purchase them from dealers she

knew because she had the money to do so. (Vol.6, C1052,1083) She

free-based so much she would have convulsions. (Vol.6, C1042) Her

cocaine usage led to her being admitted twice in January 1996 to

the hospital emergency room. (Vol.5, C965-967) Seigel also ran in

front of a car a few weeks before the murder, in a suicide attempt.

(Vol.6, C968,991) This incident led to her being kept over night

at Glen Oaks, a psychiatric facility and the institution of Baker

Act proceedings against her. (Vol.5, C993) At the time of the

homicide she would often use $200 worth of cocaine per day. (Vol.6,

C1043) At the time of the murder she was using crack. (Vol.6,

C1043-1044) According to Seigel, there was never a break in the

crack usage between she and Mr. Trease. (Vol.6, C1044) They

engaged in a cycle of using drugs, sleeping the next day, and then

Seigel going out to buy more drugs. Although Seigel wasn't sure if

she smoked crack on the day of the homicide, she knew that she had

smoked very recently before that. (Vol.6, C1131) Seigel also drank

more than usual before the homicide. (Vol.6, C1047) Seigel admitted

she was "addicted big time" to Valium and Vicodin up to the

homicide. (Vol.6, C1048,1054) Seigel also tried opium. (Vol.6,

C1057)

The trial court precluded the defense from cross-examining

Seigel about these activities. This decision by the trial court

was error. This decision by the trial court improperly restricted

the cross examination and precluded the defense from presenting to

the jury relevant impeachment evidence. As a result, Mr. Trease

was not afforded an adequate and fair opportunity to demonstrate

Seigel's bias, prejudice, and motive to lie. He was, in essence,

denied the right to present his defense.

The defense position was that Seigel had gone to Edenson's

house with her own motivation to obtain money. She killed Edenson

herself after he made unwanted sexual advances and after she had

become angry after seeing Mr. Trease involved with two other women

in a bar. Critical to this theory was the need to establish that

Seigel would have willingly placed herself in Edenson's house to

obtain money, that she needed money, and that she was unstable

enough to commit murder. It was also necessary to impeach her

credibility with the jury in view of the fact that her testimony

was the only evidence linking Mr. Trease to the Edenson's house.

The exposure of a witness's motivation in testifying is a

proper and important function of the constitutionally protected

right of cross examination. Davis v. Alaska, 415 U.S. 308, 316, 94

S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974). It is, of course,

fundamental that a criminal defendant has a constitutional right to

a full and fair cross examination to show a witness's possible bias

or motive to be untruthful. Lewis v. State, 570 So. 2d 412 (Fla.

1st DCA 1990), citing Davis v. Alaska. The refusal to allow the

presentation of testimony as to matter which are at the heart of

the accused's defense is also reversible error. Godorov v. State,

365 So. 2d 423 (Fla. 2d DCA 1978), cert. denied, 376 So. 2d 76

(Fla. 1979); O'Reilly v. State, 516 So. 2d 107 (Fla. 4th DCA 1987).

A jury must have information regarding bias, motive, prejudice,

intent, and corruptiveness if they are to correctly assess

the credibility of a witness. This is particularly true when that

witness is crucial to the state's case and there is little to no

independent evidence which establishes the defendant as the perpetrator.

Limiting the scope of cross examination in a manner which

keeps from the jury relevant and important facts bearing on the

trustworthiness of the crucial testimony constitutes error.

Jaggers v. State, 536 So. 2d 321, 328 (Fla. 2d DCA 1988). The

importance of a full and detailed cross-examination is rather

colorfully summed up by the Fifth District Court of Appeal in the

case of Gamble v. State, 492 So. 2d 1132, 1134 (Fla. 5th DCA 1986)

In Gamble the defendant had been limited in his cross-examination

the rape victim as to arrest affidavits she had filed against her

jealous and violent boyfriend. The court stated:

The exclusion of defense counsel's inquiry

as to these specifics was error. This was

similar to serving up spice cake without the

spice, or a bloody Mary without the vodka. It

is the specifics, the details,the nitty gritty

of life that proves or disproves generalities

and which permits effective cross-examination.

Each of the facts excluded by the trial court's ruling specifically

related to issues of Seigel's credibility and were critical

in evaluating her bias, prejudice, and motive.(Vol.14, R261) The

fact that she was a crack addict with a $200 a day habit, had been

subject to a Baker Act, and tried to commit suicide shortly before

the murder supplied both a motive for her to be at Edenson's to

obtain money, whether from having sex with him or robbing him, and

would underscore the probability of her behaving irrationally and

violently.

The fact that Seigel was well accustomed to going on "dates"

with unknown men as part of her livelihood as a prostitute was proper

impeachment of her claim that she was only at Edenson's house

because Mr. Trease forced her to be there. (Vol.14, R261) It also

provided her with a motive for being at the home to obtain money.

The fact of Seigel's drug use and hospitalization for suicide

attempts as a result of her drug addiction was also a critical

fact in impeaching her ability to recall the events of the homicide

accurately. (Vol.14, R219) A well-established means of impeaching

a witness's credibility is to show through testimony that the witness

has some defect in his or her capacity to accurately testify.

A witness' mental state or condition is a proper basis for this

type of impeachment. Hawkins v. State, 326 So. 2d 229, (Fla. 2d

DCA) cert. denied, 336 So. 2d 108 (Fla. 1976); Gamble v. State,

492 So. 2d 1132, 1133-1134 (Fla. 5th DCA 1986).

The trial court excluded evidence about Seigel’s cocaine usage

relying on Edwards v. State, 548 So. 2d 656 (Fla. 1989) and Tullis

v. State, 556 So. 2d 1165 (Fla. 3d DCA 1990). The trial court was

correct that these cases set forth the correct method by which to

evaluate the admissibility of the evidence, however the trial court

misapplied that method. Under Edwards and Tullis the evidence of

Seigel's drug use was admissible.

Under both these cases evidence regarding drug usage is admissible

if it can be shown that the witness had been using drugs at

or about the time of the incident which is the subject of the

witness's testimony or if it is shown by other relevant evidence

that the drug usage affects the witness’ ability to remember or

recount. Seigel stated that she used cocaine, if not on the day of

the homicide, then very recently. Very recently, according to her

deposition testimony, meant that there was only a break in the drug

usage if she was sleeping it off or on her way to purchase more

drugs. Thus, Seigel, by her own admission was using cocaine about

the time of the homicide. Neither Edwards or Tullis excluded

evidence which was recent -- in Edwards the witness had not used

drugs for several years and in Tullis the delusional behavior which

was excluded had occurred six months after the conversations

between the witness and the defendant. In fact, in Tullis the

defendant was allowed to cross-examine the witness about his preincarcerative

drug usage.

In this case it was also clear that Seigel suffered from memory

problems. The deposition is replete with incidents that Seigel

was unable to recall. (See, for example, Vol.6, C1010,1016,1025,

1029,1164, Vol.7, C971) Seigel was even unsure if she had used

cocaine on the day of the homicide. Seigel admitted to short term

memory loss as well, some of which resulted due to a automobile

accident. Seigel’s mother also confirmed Seigel suffered memory

loss. (Vol. 24, R1852) With this independent corroboration of

memory problems, testimony about Seigel’s cocaine usage was

admissible.

By prohibiting Mr. Trease from impeaching Seigel with specific

information, the jury was likely to believe that Mercurio's crossexamination

was ". . . a speculative and baseless line of attack

on the credibility of an apparently blameless witness" Davis, 415

U.S. at 318. Mr. Trease was at least entitled to an opportunity to

level the playing field. The means by which he could present his

defense and demonstrate to the jury the fallibility of Seigel's

testimony was denied to him. The jury was entitled to have the

benefit of the defense theory before them so they could make an

informed decision as to what weight to place on the crucial testimony

of Seigel. Because this opportunity was not afforded to the

jury and Mr. Trease, the conviction must be overturned.

B. THE TRIAL COURT ERRED IN ALLOWING A PRIOR CONSISTENT

STATEMENT OF SEIGEL'S TO BE ADMITTED INTO EVIDENCE

After Seigel had testified at trial and been cross-examined,

the State sought to introduce the taped interview that Seigel had

given to the Pennsylvania police upon her arrest. In this statement,

Seigel claimed that Mr. Trease had committed the homicide.

The statement did not differ in any material fashion from her trial

testimony. The State claimed that it was entitled to present this

evidence of a prior consistent statement to rebut the defense's

alleged charge of recent fabrication. The defense objected strongly,

arguing to the court that it had certainly not made the claim

that Seigel was recently fabricating her testimony. It was the

defense position that Seigel had lied all along, both in that initial

statement to the Pennsylvania police and during her trial

testimony when she claimed that Mr. Trease had committed the homicide.

(Vol.23, R1869) The trial court ruled that the statement

could be admitted, but that any references to the facts subject to

the motion in limine would be removed. The tape was then played to

the jury during the testimony of the Trooper Keffer, who conducted

the interview.

The tape is emotional and hysterical. As explained by the

officer, one of the sounds on the tape is the sound of paper being

shredded by Seigel. She was apparently given a stack of paper

towels, which she tore up during the statement.

The trial court's ruling permitting the introduction of the

prior consistent statement was error. It amounted to an improper

buttressing of Seigel, a severely prejudicial action in this case

which completely hinged upon her credibility.

"It is well established that a witness's prior consistent

statements are generally inadmissible to corroborate that witness's

testimony." Jackson v. State, 498 So. 2d 906,909 (Fla. 1986);

accord, Dawson v. State, 585 So. 2d 443, 444-45 (Fla. 4th DCA

1991). Section 90.801(2)(b), Florida Statutes (1995), sets forth

an exception to that general rule- when the prior consistent statement

is offered to rebut an express or implied charge of improper

influence, motive, or recent fabrication. Chandler v. State, 22

Fla. Law Weekly S653 (Fla. October 16, 1997); State v. Jones, 625

So. 2d 821, 826 (Fla. 1993); Cortes v. State, 670 So. 2d 119, 121

(Fla. 3d DCA 1996); Colutino v. State, 620 So. 2d 244, 245 (Fla. 3d

DCA 1993). However, the exception applies only when the prior consistent

statement was made before the existence of the fact which

gave rise to the improper influence or motive to falsify. Jackson,

at 910; Cortes, at 121; Colutino, at 245; and Dawson v. State, 528

So. 2d 1309, 1311 (Fla. 2d DCA 1988).

As previously stated, the main issue at trial was whether or

not Mr. Trease or Hope Seigel had killed Paul Edenson. At trial,

defense counsel on cross-examination, tried to establish that the

killer was Hope Seigel. Seigel's motive to lie and claim Mr.

Trease was the killer was obvious- to prevent herself from going

to prison for the rest of her life or to avoid the electric chair.

This motivation was present from the beginning, not just after her

formal arrest and after she had made a plea bargain. While Seigel

obviously wanted to keep the benefit of her plea bargain, which

required her to pin the homicide on Mr. Trease and testify

consistently with the statements she gave upon her detention in

Pennsylvania, it is equally clear that her motivation all along was

lessen the severity of her own punishment and secure favorable

treatment for herself. In this case, the motive for Seigel to

testify falsely existed from the time of her detention on. (Vol.23,

R1748) Seigel knew she was in serious trouble with the law. She

acknowledged this to her mother and to her friend Heather. Seigel

also admitted that she and Mr. Trease had conversations about the

potential penalties the crime carried on their flight to Pennsylvania.(

Vol. 7,C1219; Vol.23, R1734) Seigel's motivation to lie about

her involvement was present when she was stopped in Pennsylvania.

It did not only arise after she was offered a plea bargain. The

plea bargain only reinforced the motivation to lie, as it was

conditioned upon Seigel giving testimony consistent with her

initial statement. (Vol. 23, R1803)

The existing case law requires that the prior consistent

statement be made before the existence of the fact giving rise to

a motive to testify in order to be admissible. In this case,

defense counsel did not suggest or imply there were multiple reasons

to fabricate or offer two different motives in different time

periods as in Chandler, supra. Nor did the defense imply that

Seigel's story had changed after she made her plea. See, Anderson

v. State, 574 So. 2d 87 (Fla. 1991). Thus, it was error for the

statement to be admitted and it cannot be said that the error was

harmless.

The erroneous admission of a witness's prior consistent statement

should not be deemed harmless when the credibility of the witness

is critical to the case. Although in Anderson this Court

found the admission of one statement harmless, but it did so only

after determining that a far more damaging prior consistent statement

was admissible. In this case that does not exist.

Not only was the state allowed to buttress Seigel's testimony,

they did it through a police officer. It is especially harmful to

allow the State to bolster the credibility of such a witness

through the testimony of a police officer because the police officer

is generally regarded by the jury as disinterested, objective,

and highly credible. Rodriguez v. State, 609 So. 2d 493, 500

(Fla. 1992), cert. denied, 510 U.S. 830, 114 S. Ct. 99, 126 L. Ed.

2d 66 (1993); Barnes v. State, 576 So. 2d 439 (Fla. 4th DCA 1991);

Quiles v. State, 523 So. 2d 1261 (Fla. 2d DCA 1988). Absent any

evidence that Seigel's motive to fabricate her testimony had occurred

before her plea agreement, the admission of the prior statement

was clearly error. The improper and prejudicial admission of this

testimony requires that Mr. Trease's conviction be reversed for a

new trial.

ISSUE IV

THE TRIAL COURT ERRED IN ADMITTING

EVIDENCE OF OTHER BAD ACTS OF MR.

TREASE.

Pre-trial, the State filed four separate notices that it

intended to utilize Williams Rule evidence. (Vol.1, C118-119;

Vol.3, C374-375; Vol.4, C513-314) Defense counsel filed a motion

objecting to each notice, arguing the evidence was being used only

to show propensity and bad character. (Vol.4, C637-638) A hearing

was held on the admissibility of these matters on November 22,

1996. (Vol.14, R258-362). The State argued that it was seeking

admission under Florida Statutes Section 90.404(2)(a), with the

exception of the testimony relating to Shorin and the theft of the

murder weapon. (Vol.14, R332-338) The State argued that the questioning

of the other females established a unique modus operandi

and, most importantly, corroborated the testimony of Seigel.

(Vol.14, R334-335) At that hearing defense counsel conceded that

the evidence relating to the burglary of David Shorin’s home was

admissible. (Vol.14, R329) However, defense counsel continued to

object to the testimony of Bridgette Berousek, Heather Tomilson,

Ken Creye, and Joe Bavaro as failing to be sufficiently similar,

not relevant, and only showing propensity and bad character. (Vol.

14, R327-331) The court ruled that the State would be permitted to

introduce the evidence. The State chose to offer the testimony of

Tomilson and Berousek, but did not offer testimony about Creye and

Bavaro.

The defense also objected to other bad act or character evidence

that was admitted at trial which portrayed Mr. Trease as a

liar. Over objection Seigel, Becky Bishop, and Edjanira Viana

testified that Mr. Trease had lied to them by telling them that he

was a police officer or had worked for the police or DEA. (Vol.23,

R1625; Vol. 24, R1777-1778; Vol.25, R2231)

Heather Tomilson, Detective Wildtraut, and Seigel were permitted

to testify over defense counsel's objection that Mr. Trease

took Vicodin and Valium for a heart condition.(Vol.25, R2101; Vol.

27, R2513) Subsequent to Berousek, the State called Dr. Spehre,

who testified that the medication Mr. Trease was taking were not

heart medications. (Vol.27, R2357)

At trial Heather Tomilson testified over objection that while

Seigel and Mr. Trease were staying with her in Pennsylvania after

the murder, Mr. Trease asked her if she knew anybody that had a

safe, of any stores with safes, or if she knew anyone who was rich

that they could rob. (Vol. 25, R290-2100)

Becky Bishop testified that she had met Mr. Trease in at a bar

in Sarasota the week before Halloween in 1994. (Vol.25, R2228) They

dated for a month, during which time Mr. Trease asked her to marry

him. (Vol.25, R2229-2230) Mr. Trease told her that he worked in law

enforcement as a drug enforcement agent. (Vol.25, R2231) She

observed him practice martial arts. Bishop was asked if Mr. Trease

ever threatened her, to which a motion for mistrial was made and

denied. (Vol.25, R2232-2233) Mr. Trease told Bishop that they could

make a lot of money because she was a massage therapist and had

rich clients. (Vol.25, R2233-2234) That response was stricken by

the court. (Vol.25, R2234)

No notice was filed by the State regarding the following testimony,

however, Jeffery Colson testified that he was from Nevada

and knew Mr. Trease. (Vol.27, R2440) They had a business relationship

several years earlier. (Vol.27, R2441) Once, while visiting

Mr. Trease, Mr. Trease demonstrated to Colson some martial arts

moves. (Vol.27, R2441-2) Mr. Trease also showed Colson a collection

of handmade knives with very long blades and superior workmanship.

(Vol.27, R2443) He demonstrated to Colson how one person might

disable another when defending oneself. (Vol.27, R2443) The

demonstration included placing a knife against someone's throat.

(Vol.25, R2444) Mr. Trease stood face to face with Colson during

the demonstration. (Vol. 25, R2445)

Bridgette Berousek testified that she had a relationship with

Mr. Trease during the early part of 1995, from February to May.

(Vol.27, R2449) They lived together, but she saw him last at the

end of May. (Vol.27, R2450) In March 1995, Mr. Trease asked her if

she knew anyone that had any valuables, drugs, money, or safes.

(Vol.27, R2451) Mr. Trease wanted to burglarize them. (Vol.27,

R2451) Berousek chose not to share any information.

Berousek also testified she saw Mr. Trease practice martial

arts. (Vol.25, R2451)

On cross, defense counsel attempted to ask Berousek about her

encounter with Seigel at her job site. The court refused to allow

the jury to hear the evidence, but the proffer stated that Seigel

was angry and appeared to be under the influence of drugs or alcohol.

(Vol.27, R2462) When Seigel spoke, she made no sense. (Vol.27,

R2463)

Williams Rule governs the admissibility of similar fact evidence

and is codified at Section 90.404(2)(a), Florida Statutes,

(1995). It permits the admission of similar fact evidence of other

crimes, wrongs, or acts when relevant to prove a material fact in

issue, such as motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake. It is inadmissible

where it is relevant solely to prove bad character or propensity.

As with all evidence, similar fact evidence is also excludable

under Section 90.403, Florida Statutes (1995) when its probative

value is substantially outweighed by its prejudicial impact, confusion

of the issues, misleading the jury, or needless presentation

of cumulative evidence.

The evidence admitted in this case as similar fact evidence,

that being the solicitations about committing other burglaries, was

not properly admitted under Section 90.404(2)(a), Florida Statutes

(1995). In this case the State's contention was that this evidence

was relevant to the issue of identity. "Although similarity is not

a requirement for admission of other crime evidence, when the fact

to be proven is, for example, identity or common plan or scheme it

is generally the similarity between the charged offense and the

other crime or act that gives the evidence probative value."

Williams v. State, 621 So. 2d 413, 414 (Fla. 1993) Upon examining

the testimony relating to these conversations, it is clear that the

evidence was not of sufficient similarity to the charged offense to

render it of sufficient probative value to qualify for admission as

similar fact evidence.

Perhaps the most glaring difference between the actual offense

and these conversations is that there were only conversations.

There were no completed burglaries. There were no details as to

how the other burglaries would be committed, there were merely

conversations about whether or not there were potential monies to

be obtained. There is really no way to compare similarities and

dissimilarities between the two due to the limited nature of the

conversations. There are simply not enough facts present in the

solicitation conversations to give them any uniqueness at all.

Thus, the threshold question of admissibility, that of similarity,

is not met.

The conversations were also not admissible because they did

not involve completed crimes. The Second District Court of Appeal

in Audano v. State, 641 So. 2d 1356 (Fla. 2d DCA 1994), held that

before collateral crimes can be admitted under Williams Rule,

there must be clear and convincing evidence that the former offense

was actually committed by the defendant. Certainly with regards to

the conversations between Mr. Trease, Berousek, and Tomilson there

was no evidence that any offense at all was committed. Appellant

submits that the testimony, on the authority of Audano was not

admissible.

Even if this Court disagrees with Appellant's contention that

the conversation about other burglaries is sufficiently similar to

qualify as Williams rule evidence, that does not automatically render

it admissible. Collateral crime evidence is not relevant and

admissible just because it involves the same type of offense. Peek

v. State, 488 So. 2d 52 (Fla. 1986). If the collateral crime evidence

tends only to prove propensity or bad character it is also

excludable. Peek, quoting Drake v. State, 400 So. 2d 1217 (Fla.

1981). For example, in Castro v. State, 547 So. 2d 111 (Fla. 1987-

), the defendant was charged with stabbed the victim to death. The

state presented collateral crime evidence that four days before

Castro had ripped up a sheet and tied and gagged another man and

then threatened to stab him. This Court ruled that the admission

of the collateral crime evidence relating to this incident should

not have been admitted. This Court found that this evidence was

not relevant to any material fact in issue and the only discernible

purpose for it was to show a bad character and propensity for violent

behavior. In this case, the testimony about the solicitations

to commit burglaries showed only Mr. Trease's propensity to

commit crime and to establish that he was a bad person. It did not

establish his identity as the killer, as the state had argued. It

quite simply had no other purpose than to convince the jury that

Mr. Trease was a bad person who was constantly trying to induce

others to commit crime as it was not relative to any material fact

in issue. Appellant submits that not only does the testimony of

Berousek and Tomilson not involve the same type of offense, but

that even if stretched to the outermost limits in that regard, it

is still not relevant.

Any implication of collateral crimes not relevant to any material

fact in issue should not be admitted. Czubak v. State, 570 So.

2d 925 (Fla. 1990). This Court has held that the erroneous admission

of irrelevant collateral crime evidence is "presumed harmful

error because of the danger that a jury will take the bad character

or propensity to crime they demonstrated as evidence of guilt of

the crime charged." Castro, at 115, quoting Straight v. State, 397

So. 2d 903, 908 (Fla.), cert. denied, 454 U.S. 1022, 102 S. Ct.

556, 70 L. Ed. 2d 418 (1981). The State has the burden of proving

that the error was not harmless beyond a reasonable doubt. State v.

DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). In this case the

State cannot meet that burden. There was no direct evidence save

that of Seigel linking Mr. Trease to this crime. The jury could

easily have been persuaded that if Mr. Trease had been willing to

commit other burglaries, then Seigel was telling the truth. This

error of showing bad character on the part of Mr. Trease was even

further compounded by the trial court's refusal to allow defense

counsel to present an accurate picture of Seigel's character to the

jury. Thus, the error cannot be said to be harmless and a new

trial is required.

Even if this Court should determine that the testimony relating

to the other burglary solicitations had some relevance, relevancy

is not the sole test for admittance. Even if relevant,

evidence must still pass the hurdle of section 90.403, Florida

Statutes (1993). Section 90.403 excludes evidence, even if relevant,

where the probative value of such evidence is outweighed by

its prejudicial impact. As this Court held in Sexton v. State, 22

Fla. Law Weekly S469 (Fla. July 17, 1997), the trial court must

balance the import of the evidence with respect to the case of the

party offering it against the danger of unfair prejudice. Only

when the unfair prejudice substantially outweighs the probative

value of the evidence should it be excluded.

In this case the scales are tipped in favor of exclusion.

While counsel cannot conceive of the slightest relevancy of this

evidence to a material fact in issue, even identity, the probative

value of the evidence of these conversations was marginal at best.

The prejudicial impact, however, was great. It certainly implied

to the jury that Mr. Trease was seeking to become a one man crime

wave. Thus, when balanced, the evidence should have been excluded.

In addition to the improper testimony about the burglary solicitations,

the trial court also erred in admitting the testimony

relating to the claim by Mr. Trease that he used the medications

Vicodin and Valium for a heart condition, which was then testified

to as being a lie. Whether or not Mr. Trease used the medication

for his heart or merely took it was of no relevance to any issue in

this case. All it did was to portray this non-testifying witness

who had not placed his credibility in issue by taking the stand to

be a liar. Mr. Trease had not offered any evidence relating to his

truthfulness, therefore character evidence of this type as offered

by the State was inadmissible under Section 90.404 (1)(a), Florida

Statutes (1995); Albright v. State, 378 So. 2d 1234 (Fla. 2d DCA

1979); Lewis v. State, 377 So. 2d 640 (Fla. 1979).

The State was also allowed to present additional evidence

which had no relevance to a material fact in issue and severed only

to portray Mr. Trease as someone of bad character and a liar.

Seigel, Bishop, and Viana all testified that Mr. Trease had told

them that he worked as a police officer or for the DEA. Again, all

this testimony amounted to was an improper attempt to paint Mr.

Trease as a liar before the jury.

Even assuming, by some stretch of the imagination, that Mr.

Trease's reputation for truth and veracity had been placed into

issue, the testimony about the drugs and work as a police officer

were not proper methods of impeachment. A witness's reputation for

truth and veracity may not be impeached by the introduction of

specific instances of dishonesty. Instead, only the general reputation

within the community for truth and veracity of the person in

question may be testified to Section 90.405, Florida Statutes

(1993); Hodges v. State, 403 So. 2d 1375 (1981), rev.denied, 413

So. 2d 877 (Fla. 1981). At the time of its introduction into

evidence there was no basis for admission. The admission of this

improper character evidence demands that a new trial be granted,

especially when the prejudicial impact is added to that of the

improper admission of the Williams rule evidence of other burglary

solicitations.

The State was also able to admit the testimony of Mr. Colson,

an acquaintance of Mr. Trease from several years previous in

Nevada. Mr. Colson testified that he was shown a collection of

handmade knives belonging to Mr. Trease. The admission of this

testimony was completely irrelevant. In this case there was no

issue relating to the origin of the knife and no suggestion that it

was a knife of any uniqueness. Seigel admitted that she obtained

the knife from Mr. Edenson's own kitchen drawer. The knife used in

the homicide was recovered from the lake where it had been thrown.

In Castro v. State, 547 So. 2d at 114, the state was allowed to

present testimony from a witness who lived in the same apartment

house as the defendant that several days after the murder he had

found a steak knife outside the defendant's apartment building.

This Court ruled the admission of this testimony was not relevant

where it was undisputed that this knife could not be the murder

weapon because the defendant had broken the knife used in homicide

into pieces and had thrown it into a lake. Thus, this evidence of

Mr. Trease's ownership of handmade knives several years earlier had

no relevance and was likewise not admissible in this case. Once

again, the admission of this evidence was extremely inflammatory

and prejudicial to the jury. It again only served to show, once

again, that Mr. Trease had a propensity toward violence.

Lastly, the State also introduced through Mr. Colson that Mr.

Trease, several years earlier, had demonstrated a defensive move

using a knife placed against the throat. The move was accomplished

with Mr.Trease and Mr. Colson standing face to face. According to

Colson, it was not done in a threatening manner and he was not

afraid. Again, this testimony had no relevance to the present

case. In Escobar v. State, 22 Fla. Law Weekly S415 (Fla. July 10,

1997), this Court held that evidence that the defendant had held a

pistol to another man's chest and threatened to kill him was not

admissible in the defendant's trial for killing a police officer

because it only proved bad character. The description of the incident

between Mr. Colson and Mr. Trease was in no way similar to the

incident and method by which Seigel had claimed that Mr. Trease had

cut Mr. Edenson's throat. In the homicide Mr. Trease, according

only to Seigel, was never intimated to have been placed in a

defensive posture. According to Seigel, the murder was clearly

one of fear by Mr. Edenson and aggression by Mr. Trease. With no

similarity, no qualifications as a prior bad act or crime, the

testimony of Colson must fall into the category of evidence which

again, only established a propensity to violence.

When the entire record in this case is examined as a whole,

the cumulative result is that of a trial characterized by great

unfairness and prejudice. In addition to the objected to errors

detailed above, there were other instances of improper evidence

being admitted, admittedly sometimes without objection or where

objections were sustained, which further created an atmosphere of

manifest injustice.

For example, the defense had specifically sought a Motion in

Limine to prevent the State from introducing testimony relating to

Mr. Trease's statements concerning his sexual conquests. Despite

the court's pretrial ruling that this would be inadmissible, on two

separate occasions the prosecutor intentionally delved into this

area. First, Trooper Richard Terek was asked if Mr. Trease had

made any comments concerning his associations with women. (Vol.25,

R2118) The court sustained defense counsel's objection. Despite

this, the prosecutor then asked Agent Mark Sykes if Mr. Trease had

referred to himself as the "Great American Gigiolo". (Vol.25,

R2135) Again defense counsel objected and the jury was ordered to

disregard the question. Another example of intentional efforts by

the State to introduce irrelevant testimony was the question put to

Becky Bishop as to whether Mr. Trease had ever threatened her, to

which an objection was sustained. Likewise there were instances of

unobjected to testimony, such as Seigel's testimony that Mr. Trease

stated during their trip to Pennsylvania that if they were stopped,

he would "cap" the cop which were extremely prejudicial. (Vol.24,

R1733) Although questionably preserved by defense trial counsel

for independent review, instances such as this only served to

further impinge upon Mr. Trease's right to a fair trial. While

instances such as these may not be appropriate for individual consideration,

the cumulative effect of all this testimony of little

to no probative value and great prejudicial impact can still be

considered in reviewing the record as a whole when the harmfulness

of the unquestionably preserved errors addressed in both this issue

and the preceding issue are considered.

When viewed in its entirety, the record before this Court cannot

support the conclusion that Mr. Trease received a fair trial.

The combined restrictions of his right to present a defense and to

effectively attack the credibility of Seigel as argued in Issue

III combined with the grossly unfair admission of irrelevant and

highly prejudicial collateral crime and character evidence outlined

in this issue vitiated any semblance of due process in this case.

At minimum, Mr. Trease was entitled to a level playing field, and

he was denied even that. The pervasive and manifest unfairness

which occurred in this case requires that the conviction be

reversed and Mr. Trease be afforded a new trial during which the

basic tenents of due process are respected.

ISSUE V

THE TRIAL COURT ERRED IN ASSIGNING

LITTLE OR NO WEIGHT TO THE MITIGATING

FACTOR THAT MR. TREASE HAD ADJUSTED

WELL TO INCARCERATION AND

ASSISTED IN PREVENTING THE SUICIDE

OF ANOTHER INMATE.

During the penalty phase, defense counsel introduced testimony

from several jail guards that Mr. Trease had adjusted well to incarceration

and that when another inmate in his cell had tried to

commit suicide, Mr. Trease had alerted the guards and assisted in

preventing the man's death. The trial court considered this in

mitigation of the death sentence. In both his written order and

oral pronouncement, the trial court stated that he had considered

this factor and was giving it little or no weight. (Vol.31, R3093;

Vol.12, C2235)

It was error in this case for the trial court to give this

mitigator no weight. This Court has consistently held that

although it will not review the amount of weight assigned to a

mitigator, the trial court is required to consider each mitigator

and assign it some weight- it cannot assign a mitigator no weight.

See, Spencer v. State, 691 So. 2d 1062 (Fla. 1996). The trial

court's ambiguous order in this case makes it just as likely that

he gave this mitigator no weight as opposed to little weight.

Because of this ambiguity, it cannot be determined if the principal

outlined in Spencer was followed. The case must be returned to the

trial court for a proper weighing consideration of this factor.

ISSUE VI

THE TRIAL COURT ERRED IN FINDING THE

AGGRAVATING FACTOR THAT THE HOMICIDE

WAS COMMITTED TO AVOID ARREST.

In his sentencing order the trial court found that the aggravating

factor of the capital felony being committed to avoid or

prevent a lawful arrest or effecting an escape from custody had

been established. (Vol.12, C2236) The trial court relied upon the

testimony of Seigel, who had stated that Mr. Trease told her that

Mr. Edenson had to be killed to prevent his identification and

because the victim had torn his shirt. The court found that the

evidence established the dominant motive for the killing was to

avoid arrest.

In Preston v. State, 607 So. 2d 404, 409 (Fla.1992), this

Court held that in order to establish this aggravating factor where

the victim is not a law enforcement officer, the State must show

that the sole or dominant motive for the murder was the elimination

of the witness. Accord, Perry v. State, 522 So. 2d 817, 820 (Fla.

1988). In this case it is not clear whether the dominant motive

for the killing was because Mr. Edenson might know Mr. Trease or if

the killing occurred in a fit of rage over the thwarted robbery and

the torn shirt. Seigel testified that during the confrontation

when Mr. Trease's shirt was torn, he told Mr. Edenson that he had

torn his shirt and that he should kill him for that. (Vol.23,

R1662) It is entirely possible that rage fueled the homicide

rather than subsequent identification and that irrational rage was

the dominant motive for the killing. Because of the possibility of

another motive, it is error to apply this aggravator to the instant

case.

CONCLUSION

Based on the foregoing arguments and citation of authorities,

Appellant respectfully requests that this Honorable Court reverse

the sentence of the lower court and remand this cause for a new

trial.

CERTIFICATE OF SERVICE

I certify that a copy has been mailed to Robert Butterworth,

Suite 700, 2002 N. Lois Ave., Tampa, FL 33607, (813) 873-4739, on

this day of October, 1998.

Respectfully submitted,

JAMES MARION MOORMAN ANDREA NORGARD

Public Defender Assistant Public Defender

Tenth Judicial Circuit Florida Bar Number O661O66

(941) 534-4200 P. O. Box 9000 - Drawer PD

Bartow, FL 33831

AN/ddv