i

PAGE NO.:

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . 42

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 44

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . . 44

WHETHER THE LOWER COURT ERRED REVERSIBLY IN

DENYING A DEFENSE REQUEST FOR A SECOND

ATTORNEY TO ASSIST.

ISSUE II . . . . . . . . . . . . . . . . . . . . . . . . 49

WHETHER THE COURT ERRED IN REFUSING TO APPOINT

DIFFERENT COUNSEL.

ISSUE III . . . . . . . . . . . . . . . . . . . . . . . 65

WHETHER THE TRIAL COURT ERRED IN THE ADMISSION

OF THE TESTIMONY AND PRIOR CONSISTENT

STATEMENTS OF THE CO-DEFENDANT HOPE SIEGEL.

ISSUE IV . . . . . . . . . . . . . . . . . . . . . . . . 81

WHETHER THE TRIAL COURT ERRED REVERSIBLY IN

ADMITTING EVIDENCE OF ALLEGEDLY BAD ACTS OF

TREASE.

ISSUE V . . . . . . . . . . . . . . . . . . . . . . . . 92

WHETHER THE LOWER COURT ERRED REVERSIBLY IN

ASSIGNING LITTLE OR NO WEIGHT TO THE

MITIGATING FACTOR OF ADJUSTING WELL TO

INCARCERATION AND ASSISTING IN PREVENTING

ANOTHER INMATE’S SUICIDE.

ISSUE VI . . . . . . . . . . . . . . . . . . . . . . . . 94

WHETHER THE LOWER COURT ERRED REVERSIBLY IN

FINDING THE AGGRAVATING FACTOR OF HOMICIDE

COMMITTED TO AVOID ARREST.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 97

ii

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 97

iii

PAGE NO.:

Alvin v. State,

548 So.2d 1112 (Fla. 1989) . . . . . . . . . . . . . . . . . 80

Amoros v. State,

531 So.2d 1256 (Fla. 1988) . . . . . . . . . . . . . 79, 82, 91

Anderson v. State,

574 So.2d 87 (Fla.), cert. denied, 502 U.S.

834, 112 S.Ct. 114, 116 L.Ed.2d 83 (1991) . . . . . . . . 77, 80

Armstrong v. State,

642 So.2d 730 (Fla. 1994) . . . . . . . . . . . . . . . 42, 46-48

Audano v. State,

641 So.2d 1356 (Fla. 2DCA 1994) . . . . . . . . . . . . . . . 83

Bottoson v. State,

443 So.2d 962 (Fla. 1983) . . . . . . . . . . . . . . . . . . 95

Bowden v. State,

588 So.2d 225 (Fla. 1991) . . . . . . . . . . . . . . . . . . 64

Brogan v. United States,

522 U.S. ___, 139 L.Ed.2d 830 (1998) . . . . . . . . . . . . 89

Campbell v. State,

571 So.2d 415 (Fla. 1990) . . . . . . . . . . . . . . . . . . 92

Chandler v. State,

702 So.2d 186 (Fla. 1997) . . . . . . . . . . . . . . 75, 79, 80

Correll v. State,

523 So.2d 562 (Fla. 1988) . . . . . . . . . . . . . . . . . . 68

Davis v. State,

___ So.2d ___, 22 Florida Law Weekly S701 (Fla. 1997) . . . . 64

Derrick v. State,

641 So.2d 378 (Fla. 1994) . . . . . . . . . . . . . . . . . . 96

Dufour v. State,

495 So.2d 154 (Fla.), cert. denied, 479 U.S.

1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987) . . . . . . . . . 77

Edwards v. State,

iv

548 So.2d 656 (Fla. 1989) . . . . . . . . . . . 42, 66, 68, 72-74

Edwards v. State,

662 So.2d 405 (Fla. 1DCA), review

dismissed, 679 So.2d 772 (Fla. 1996) . . . . . . . . . . . . 77

Ferrell v. State,

653 So.2d 367 (Fla. 1995) . . . . . . . . . . . . . . 42, 47, 48

Ferrell v. State,

686 So.2d 1324 (Fla. 1996) . . . . . . . . . . . . . . . . . 85

Finney v. State,

660 So.2d 674 (Fla. 1995) . . . . . . . . . . . . . . . . . . 85

Foster v. State,

679 So.2d 747 (Fla. 1996) . . . . . . . . . . . . . . . . . . 85

Gibson v. State,

661 So.2d 288 (Fla. 1995) . . . . . . . . . . . . . . . . . . 86

Green v. State,

688 So.2d 301 (Fla. 1996) . . . . . . . . . . . . . . . . . . 72

Griffin v. State,

639 So.2d 966 (Fla. 1994) . . . . . . . . . . . . . . . . . . 82

Gudinas v. State,

693 So.2d 953 (Fla. 1997) . . . . . . . . . . . . . . . . . . 92

Hall v. State,

614 So.2d 473 (Fla. 1993) . . . . . . . . . . . . . . . . . . 95

Harmon v. State,

527 So.2d 182 (Fla. 1988) . . . . . . . . . . . . . . . . . . 95

Hazen v. State,

700 So.2d 1207 (Fla. 1997) . . . . . . . . . . . . . . . 67, 88

Herring v. State,

446 So.2d 1049 (Fla. 1984) . . . . . . . . . . . . . . . . . 95

Heuring v. State,

513 So.2d 122 (Fla. 1987) . . . . . . . . . . . . . . . . . . 84

Hoefert v. State,

617 So.2d 1046 (Fla. 1993) . . . . . . . . . . . . . . . . . 85

Howell v. State,

v

___ So.2d ___, 23 Florida Law Weekly S90 (Fla. 1998) . . . . 96

Hunt v. State,

613 So.2d 893 (Fla. 1992) . . . . . . . . . . . . . . . . . . 64

Jensen v. State,

555 So.2d 414 (Fla. 1DCA), review

denied, 564 So.2d 1086 (Fla. 1990) . . . . . . . . . . . . . 85

Johnson v. State,

565 So.2d 879 (Fla. 5DCA 1990) . . . . . . . . . . . . . . . 72

Jones v. State,

610 So.2d 105 (Fla. 3DCA 1992) . . . . . . . . . . . . . . . 86

Kellem v. Thomas,

287 So.2d 733 (Fla. 4DCA 1974) . . . . . . . . . . . . . . . 77

Kelley v. State,

486 So.2d 578 (Fla.), cert. denied, 479 U.S.

871, 1075 S.Ct. 244, 92 L.Ed.2d 169 (1986) . . . . . . . . . 77

Kokal v. State,

492 So.2d 1317 (Fla. 1986) . . . . . . . . . . . . . . . . . 95

Koon v. Dugger,

619 So.2d 246 (Fla. 1993) . . . . . . . . . . . . . . . . 32, 60

Koon v. State,

513 So.2d 1253 (Fla. 1987) . . . . . . . . . . . . . . . . . 61

Larzelere v. State,

676 So.2d 394 (Fla. 1996) . . . . . . . . . . . . . . . . . . 64

Lindsey v. State,

636 So.2d 1327 (Fla. 1994) . . . . . . . . . . . . . . . . . 68

Lowe v. State,

650 So.2d 969 (Fla. 1994) . . . . . . . . . . . . . . . . . . 64

Lucas v. State,

376 So.2d 1149 (Fla. 1979) . . . . . . . . . . . . . . . . . 67

Malloy v. State,

382 So.2d 1190 (Fla. 1979) . . . . . . . . . . . . . . . . . 84

vi

Morris v. Slappy,

461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) . . . . . . 61

Pittman v. State,

646 So.2d 167 (Fla. 1994) . . . . . . . . . . . . . . . . . . 88

Preston v. State,

607 So.2d 404 (Fla. 1992) . . . . . . . . . . . . . . . . 94, 95

Richardson v. State,

561 So.2d 18 (Fla. 5DCA 1990) . . . . . . . . . . . . . . . . 72

Sanborn v. State,

474 So.2d 309 (Fla. 3DCA 1985) . . . . . . . . . . . . . . . 62

Shellito v. State,

701 So.2d 837 (Fla. 1997) . . . . . . . . . . . . . . . . 77, 80

Sims v. State,

681 So.2d 1112 (Fla. 1996) . . . . . . . . . . . . . . . . . 92

State v. Basiliere,

353 So.2d 820 (Fla. 1978) . . . . . . . . . . . . . . . . . . 69

State v. Clark,

614 So.2d 453 (Fla. 1992) . . . . . . . . . . . . . . . . . . 69

State v. DiGuilio,

491 So.2d 1129 (Fla. 1986) . . . . . . . . . . . . . . . . . 80

Stewart v. State,

558 So.2d 416 (Fla. 1990) . . . . . . . . . . . . . . . . . . 77

Strickland v. Washington,

466 U.S. 668, 80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . 48

Swafford v. State,

533 So.2d 270 (Fla. 1988) . . . . . . . . . . . . . . 84, 88, 95

Thomas v. State,

693 So.2d 951 (Fla. 1997) . . . . . . . . . . . . . . . . . . 93

Trease v. State,

686 So.2d 593 (Fla. 2DCA 1997) . . . . . . . . . . . . . . . 60

Tullis v. State,

556 So.2d 1165 (Fla. 3DCA 1990) . . . . . . . . . . . . . . . 72

Tumulty v. State,

vii

489 So.2d 150 (Fla. 4DCA 1986) . . . . . . . . . . . . . . . 88

Voorhees v. State,

699 So.2d 602 (Fla. 1997) . . . . . . . . . . . . . . . . . . 82

Watts v. State,

593 So.2d 198 (Fla. 1992) . . . . . . . . . . . . . . . . . . 64

Williams v. State,

110 So.2d 654 (Fla. 1959) . . . . . . . . . . . . . . . . . . 84

Williams v. State,

617 So.2d 398 (Fla. 3DCA 1993) . . . . . . . . . . . . . . . 72

Williams v. State,

622 So.2d 456 (Fla. 1993) . . . . . . . . . . . . . . . . . . 85

Wuornos v. State,

644 So.2d 1000 (Fla. 1994) . . . . . . . . . . . . . . . . . 91

F.S. 90.404 . . . . . . . . . . . . . . . . . . . . . . . 87, 88

F.S. 90.801(2)(b) . . . . . . . . . . . . . . . . . . . . . . 76

1

Appellant was charged by indictment with the first degree

murder of Paul Edenson (Vol. I, R 31-32). Trease was charged in a

subsequent information with burglary and robbery with a firearm

(Vol. I, R 137-139). The jury returned guilty verdicts (Vol. X, R.

1846-1847).

The lower court prior to trial granted defense motions to

appoint a private investigator, Keith Steele (Vol. I, R 46), to

appoint a penalty phase investigator and mitigation specialist,

Cheryl Pettry (Vol. I, R 74), to appoint an expert pursuant to

Florida Rules of Criminal Procedure 3.216 (Vol. III, R 482-484), to

have court-ordered EEG examination performed (Vol. IV, R. 642-643),

to compel disclosure of alcohol and/or drug treatment information

and/or medical health and/or psychiatric treatment information,

hospital records and Baker Act records of Hope Siegel (Vol. IV, R.

644-645; Vol. XIV, TR. 228-229), requesting a PET scan and

appointment of Dr. Frank Wood (Vol. IV, R 706-707).

House cleaner Mary Mullen went to Paul Edenson’s house on

August 18, 1995, sometime after 1:00 P.M. She noticed his car was

in the driveway which was unusual since he’s never home when they

arrive on Friday afternoon. She heard a loud noise inside which

she later learned was the television blasting. After knocking and

receiving no answer she and Stephany Portell entered the house

2

using a pass key and discovered the victim laying face down on the

living room floor with his head in a pool of dried blood (Vol.

XXII, TR 1490-92). Paramedics arrived ten minutes after the 911

call (Vol. XXII, TR 1493). The witness testified that Edenson had

a jewelry box in his master bedroom, State’s Exhibit 2 (Vol. XXII,

TR 1495).

Robert Potter, a paramedic, stated that the victim was not

breathing, had a gunshot wound to the head and it was obvious he

was dead (Vol. XXII, TR 1498-1500). Officer Terry Winkel observed

the victim laying on the floor (Vol. XXII, TR 1503). Winkel smoked

Benson & Hedges Menthol cigarettes outside the house area in the

yard -- outside the initial perimeter securing the crime scene

which was later expanded. Winkel later gave a blood sample to

compare it with the DNA on the cigarette butts (Vol. XXII, TR 1503-

1505).

Associate medical examiner Dr. James C. Wilson observed the

victim on the floor wearing a blue bathrobe. There was a large

amount of blood around the upper chest, neck and head region

extending outward on the hard, smooth stone floor (Vol. XXII, TR

1514). There was blood spatter in several areas, at least one

fragment of tissue on a rug close to the body, there was some

furniture that was ajar, evidence of a gunshot wound with a spent

projectile deformed and lying on the floor (Vol. XXII, TR 1514).

Exhibit 36 depicted the piece of tissue about four to six feet from

the body (Vol. XXII, TR 1520). Dr. Wilson observed the wound

3

consistent with a gunshot wound to the right side of the head prior

to turning the body over. There were also very deep, large incised

wounds to the neck area (Vol. XXII, TR 1521). The tip of a rubber

glove similar to the kind a doctor or health care professional

might wear was under the head (Vol. XXII, TR 1522). There were

multiple injuries to the face; the right eye globe had been damaged

if not exploded and a few small marks in the left eye region were

consistent with blunt impact (Vol. XXII, TR 1526). An autopsy

revealed that the victim was 5'9" or 5'10" and weighed about 188

pounds (Vol. XXII, TR 1527). On the right side of the face was a

contact range entrance wound (Vol. XXII, TR 1531). The exit wound

was to the left of the midline in the forehead above the eyebrow

(Vol. XXII, TR 1533). There were multiple fractures of the skull

across the front of the head and injuries to the brain tissue in

the frontal portions (Vol. XXII, TR 1534). The injury to the left

eye was consistent with striking with the knuckles of the fist

(Vol. XXII, TR 1536). He opined that the gunshot wound was

consistent with a .38 caliber or 9 millimeter (Vol. XXII, TR 1538-

39). X-rays revealed bullet fragments inside Mr. Edenson’s head

(Vol. XXII, TR 1539). The frontal lobes of the brain are not

involved directly with immediate motor and sensory activities or

breathing (Vol. XXII, TR 1543). There were at least three separate

cuts to the neck beginning on the right side and the cutting motion

was from right to left (Vol. XXII, TR 1550). All the tissues were

incised from deep up towards the surface (Vol. XXII, TR 1555). The

4

depth of the neck wounds was three to three and a quarter inches

(Vol. XXII, TR 1556). The piece of tissue found on the rug a few

feet away was muscle and a slice of the hyoid bone which is located

above the larynx (Vol. XXII, TR 1557). To cut that bone and eject

it would require an extremely powerful thrust or cutting movement

(Vol. XXII, TR 1558). The victim’s chin was clearly up out of the

cutting area (Vol. XXII, TR 1559). The wounds are easily explained

in a scenario wherein the perpetrator from behind the victim pulled

the head back using the hair and slashing with a great deal of

power (Vol. XXII, TR 1560-61). If the victim had only been shot he

would have lived a matter of a few hours before he died (Vol. XXII,

TR 1567). The injuries received by the victim would be consistent

with his trying to push himself up off the floor (Vol. XXII, TR

1567). The carotid arteries were not cut (Vol. XXII, TR 1567-68).

Hope Siegel entered a plea of no contest as a principal to

second degree murder of Paul Edenson and sentencing was scheduled

for later in the month (Vol. XXIII, TR 1604). The plea called for

a sentencing range of ten to twenty years imprisonment (Vol. XXIII,

TR 1605). She knew appellant Trease when his hair was longer as

depicted in Exhibit 10 (Vol. XXIII, TR 1606). Siegel met Trease

before Christmas in 1994 and became his girlfriend. In early 1995

she accompanied him to Bayview Motors to try and sell his red

Mercedes. They met Paul Edenson (Vol. XXIII, TR 1607). Appellant

signed Exhibit 14, a consignment agreement with Bayview Motors; she

believed he was left-handed (Vol. XXIII, TR 1609-10). Siegel and

5

Trease visited with Edenson two or three times at Bayview Motors

(Vol. XXIII, TR 1610). She separated from appellant in the spring

of 1995 and met David Shorin (Vol. XXIII, TR 1612). While dating

Shorin he indicated that he was a sharpshooter (Vol. XXIII, TR

1614). She asked Shorin to give her gun lessons but it never

happened (Vol. XXIII, TR 1614). Siegel subsequently got back

together with Trease and they took a trip to Biloxi, Mississippi

(Vol. XXIII, TR 1615). In June of 1995 she and Trease burglarized

Shorin’s house -- appellant was always asking if she knew anybody

who had guns or money and she told appellant she remembered Shorin

had a gun shop -- and Trease took the safe (Exhibit 27) and put it

in the truck. Guns and money were inside it (Vol. XXIII, TR 1616-

1619). Appellant left town with the guns. She saw Shorin while

Trease was gone but did not tell him she had committed the burglary

(Vol. XXIII, TR 1620). When Trease returned he still had some of

the guns including the Glock (Exhibit 9)(Vol. XXIII, TR 1621).

There was also a holster (Exhibit 32) and magazines for the gun.

She and Trease bought latex gloves during the summer of 1995 (Vol.

XXIII, TR 1622). Trease told her different things about being

associated with law enforcement agencies such as the DEA and FBI.

Siegel had worked for the Sarasota Sheriff’s Department and had two

shirts that said police on them (Vol. XXIII, TR 1625). After his

return from law Vegas, Trease stayed with her on occasion at her

parents’ house in Bradenton while her parents were in Pennsylvania.

She observed him practice martial arts (Vol. XXIII, TR 1626).

6

Prior to August 17, appellant indicated that he knew or wanted to

find out if Paul Edenson had a safe at Bayview Motors and he asked

Siegel to call him (Vol. XXIII, TR 1627-28). At Trease’s direction

Siegel called Edenson and told him that Trease was out of the

picture and she was supposed to try and get together with the

victim to find out if he had a safe or money (Vol. XXIII, TR 1628).

On August 17 at her house Trease asked Siegel to call Edenson again

and make a date to get together with him, in order to find out if

he had any money. Although she didn’t want to, she called him

(Vol. XXIII, TR 1629-30). At first she dialed different numbers so

appellant would think she was talking to Edenson but Trease didn’t

believe her so Trease picked up the phone, called Edenson and

handed her the phone (Vol. XXIII, TR 1630-31). Edenson gave

directions to his house (Vol. XXIII, TR 1632). Appellant told her

to get dressed up and she put on a black dress and high heels; her

hair was strawberry-blond color (Vol. XXIII, TR 1633). Appellant

was wearing a blue denim shirt, blue jeans and moccasins (Vol.

XXIII, TR 1634). She drove and appellant had the Glock in the back

of his pants. Trease told her to drop him off at the bar Cha Cha

Coconuts and instructed her to find the safe and to look in the

bedroom (Vol. XXIII, TR 1637-38). She parked in Edenson’s driveway

and went inside; the victim said he was going to take a shower

(Vol. XXIII, TR 1640). Edenson seemed sad and mentioned that his

business was down forty thousand dollars (Vol. XXIII, TR 1644).

Edenson got on the phone and called Chinese Palace for a delivery.

7

Siegel did not look around the house for a safe, she only noticed

a hole in the fireplace (Vol. XXIII, TR 1646). She mentioned to

Edenson about seeing a friend at Columbia and he suggested she

walk; Siegel walked to Cha Cha Coconuts and saw Trease sitting at

the bar with two women (Vol. XXIII, TR 1647-48). She noticed one

of the women giving him a number. Siegel sat down and looked at

him. She was upset. They walked out and argued. Trease was mad,

claiming the two Brazilian women had money and she had messed

things up (Vol. XXIII, TR 1649-51). She told appellant that she

had looked for a safe (but really hadn’t) and that he didn’t have

one and Edenson claimed he was down forty thousand dollars. Trease

was mad and didn’t believe her (Vol. XXIII, TR 1651). Trease

instructed her to go back to the victim’s house and that he would

be behind her; Siegel recalled passing a tall man who smelled good

(Vol. XXIII, TR 1653-54). When she walked inside Edenson locked

the door (Vol. XXIII, TR 1655). She heard a knock and told Edenson

she was going to her truck for cigarettes -- she didn’t know if

appellant was there (Vol. XXIII, TR 1657). Edenson unlocked the

door and Trease was crouched down with both hands in a claw-like

gesture. He pushed the door open, hit the victim in the nose and

knocked him to the ground. Edenson got up, pulled appellant’s

shirt and Trease fell back (Vol. XXIII, TR 1658-59). Appellant was

wearing latex gloves on both hands (Vol. XXIII, TR 1658-60).

Trease said "you ripped my shirt" (Vol. XXIII, TR 1661). Appellant

made a weird sound, got the victim on the ground, put his knee on

8

his back and pulled the victim’s head back (Vol. XXIII, TR 1663).

Trease asked if he had a safe or money and Edenson insisted he had

no safe, only jewelry in a jewelry box (Vol. XXIII, TR 1664).

Trease grabbed Siegel by the back of the hair and told her to get

the gun in the truck and she did so (Vol. XXIII, TR 1665). Trease

put the gun to Edenson’s head, asked him if he wanted to live and

kept asking about a safe (Vol. XXIII, TR 1666). Siegel heard a

gunshot while she was by the door and there was blood everywhere.

Edenson tried to push himself up. Trease told her to get a knife

in the kitchen and she gave it to him (Vol. XXIII, TR 1667-68).

She saw Trease cut his throat three times while holding his head

back (Vol. XXIII, TR 1669-70). At appellant’s direction she took

a jewelry box and a bullet casing and appellant gave her the knife

to put in a bag. She also picked up the tip of his glove from the

floor (Vol. XXIII, TR 1672). Outside in the car Trease told her he

heard the victim’s last breath and that Trease liked it (Vol.

XXIII, TR 1674). Appellant burned their clothes in the fireplace

of her house (Vol. XXIII, TR 1675). As for the items in the bag

appellant said he was going to throw it in a lake or river (Vol.

XXIII, TR 1677). Exhibit 48 was the bag. Appellant put holes in

the bag so it would sink. The bag and the safe were thrown in a

river by Trease (Vol. XXIII, TR 1680-81). Trease kept the Glock

for protection (Vol. XXIII, TR 1681). Afterwards they went to a

bar, Tink’s Lounge (Vol. XXIII, TR 1727), left her mother’s messy

house and drove north in her truck on I-75 (Vol. XXIII, TR 1728).

9

Siegel had a stun gun in her purse which she had purchased a couple

of months earlier in appellant’s presence (Vol. XXIII, TR 1729).

She had never used the stun gun on a person; appellant was aware

that she had it (Vol. XXIII, TR 1730). They decided to go to

Pennsylvania where her friend Heather Tomlinson lived. On the way

north appellant threatened her, telling her if she testified

against him someone else would find her if he couldn’t (Vol. XXIII,

TR 1731-32). He instructed her not to be stopped by the police or

he would "cap" the policeman and her. Trease told her that he

would kill her mother if she found out that Hope was with him (Vol.

XXIII, TR 1733). Appellant informed Siegel he was going to marry

her so that she couldn’t testify against him (Vol. XXIII, TR 1733).

Appellant explained that they had to leave Florida because he could

get the electric chair. He said he killed Edenson because he could

identify them and he tore his shirt. Appellant became angry when

she got emotional telling her "to get my shit together" (Vol.

XXIII, TR 1734). On the way to Pennsylvania she called her mother

who had returned to Bradenton to get money (Vol. XXIII, TR 1735).

Siegel was scared to contact police (Vol. XXIII, TR 1736). She was

apprehended by Pennsylvania police and gave them information and

also talked to Sarasota detectives when they arrived (Vol. XXIII,

TR 1738-39). She told detectives about the Brazilian women at Cha

Cha Coconuts and the well-dressed man she passed wearing the

cologne and being at Tink’s Lounge (Vol. XXIII, TR 1742-43).

On cross-examination Siegel was asked about her seven month

10

employment with the sheriff’s office (Vol. XXIII, TR 1748) and the

brain injury she received following a 1992 automobile accident

(Vol. XXIII, TR 1749). As a result of her auto accident she had

problems with her memory for recalling new information (Vol. XXIII,

TR 1758). She conceded not telling Mr. Shorin of her participation

in the burglary of his residence (Vol. XXIII, TR 1763). She was

upset when the woman at Cha Cha’s gave her phone number to Trease

(Vol. XXIII, TR 1777). Siegel insisted that she did not touch

Edenson when Trease assaulted the victim (Vol. XXIII, TR 1790).

She denied shooting the victim or cutting his throat (Vol. XXIII,

TR 1793). Siegel denied telling Tonya Sterling that appellant made

her put her hand on the gun, held her hand and that she shot

Edenson (Vol. XXIII, TR 1805). She denied telling Janene Silkwood

that she killed Edenson by herself (Vol. XXIII, TR 1807). She was

originally charged with first degree murder but pled to second

degree murder on October 7, 1996 (Vol. XXIII, TR 1811).

On redirect she admitted having given details of her case to

Janene Silkwood who was similarly involved in a murder and an exhusband

(Vol. XXIII, TR 1823-24). She and Silkwood had a falling

out in early 1996 (Vol. XXIII, TR 1829).

Lisa Magana, a court reporter, testified that at a hearing on

September 18, 1996, Trease stated under oath that he was left

handed (Vol. XXIV, TR 1845-48). The defense stipulated that Trease

was left handed (Vol. XXIV, TR 1849).

Mary Siegel, Hope’s mother, testified that Hope Siegel had an

11

automobile accident in 1992 and among the changes resulting from

that accident were forgetfulness, difficulty in taking things in,

and she would cry more. Hope became more frustrated, upset and

angry (Vol. XXIV, TR 1851-55). Her attention span got worse after

the accident (Vol. XXIV, TR 1856). The witness learned in late

1994 that Trease had entered her daughter’s life (Vol. XXIV, TR

1856). Mary Siegel met appellant once in March of 1995 and learned

that sometime in the spring Hope and Trease had separated. Then

the witness learned that Hope took a trip to Biloxi, Mississippi in

May of 1995 with Trease (Vol. XXIV, TR 1858). In the summer of

1995 Mary and her husband (employed as a golf professional in

Pennsylvania) and Hope’s nine year old daughter Chelsea went to

Pennsylvania. Hope was left at the Bradenton home (Vol. XXIV, TR

1859-60). The schedule called for their return to Bradenton by

August 18 for Chelsea’s return to school; Mr. Siegel was going to

stay in Pennsylvania (Vol. XXIV, TR 1860). When she returned to

the Bradenton home on August 18 the witness discovered that it was

very messy; the spice rack was gone (Vol. XXIV, TR 1861-62). Later

in the fireplace there were thin pieces of metal (Vol. XXIV, TR

1862). She found a pill bottle with appellant’s name and his

motorcycle license plate and tool box (Vol. XXIV, TR 1863). Days

later she got a phone call from Hope. She was nervous and scared

and not herself (Vol. XXIV, TR 1864). Hope told her mother that

something bad happened and she was there but couldn’t prove that

she didn’t do anything (Vol. XXIV, TR 1870). She said she was at

12

the wrong place at the wrong time. The witness worked with police

in trying to find her daughter. She wired money to Hope (Vol.

XXIV, TR 1871-72).

Rick Goldman, an employee of Auto Trim Design in Bradenton,

testified that he was at Edenson’s Bayview Motors on August 17,

1995 at 6:30 P.M. and was present when Edenson was making a phone

call to a female between seven and seven-thirty (Vol. XXIV, TR

1876-79). He gave directions to a house near St. Armands Circle

(Vol. XXIV, TR 1880). The witness identified photos of Paul

Edenson (Vol. XXIV, TR 1883).

Christopher Gauthier received a delivery food order at China

Palace Express on Siesta Key on August 17, 1995 shortly before nine

o’clock (Vol. XXIV, TR 1887). A man placed the order over the

phone and a woman’s voice in the background was involved in the

food decision making (Vol. XXIV, TR 1888). Gauthier arrived at 232

North Boulevard of the Presidents at about 9:55 P.M. (Vol. XXIV, TR

1890). In front of the house were a Mercedes-Benz, a sport coupe,

a Cadillac and a white pickup truck (Vol. XXIV, TR 1891). A man

wearing a dark bathrobe came to the door and the witness turned the

food over to Mr. Edenson. He did not see anyone in the living room

area but he heard either a woman’s voice or television (Vol. XXIV,

TR 1894). There were no observable injuries to the man’s face

(Vol. XXIV, TR 1895).

Marshall Weldy, GET security manager, oversees the production

of and searches for telephone records (Vol. XXIV, TR 1902). In

13

response to a subpoena he did two searches, a universal measure

service type search and an early toll retrieval type search of toll

calls (Vol. XXIV, TR 1904). One of the numbers searched for, (941)

365-1940, was for Bayview Motorcars (Vol. XXIV, TR 1905). One of

the highlighted calls at 7:01 P.M. on August 17 was from 941-739-

1052, a number assigned to Curt Siegel (Vol. XXIV, TR 1906). A

third entry at 7:10 P.M. was from that number to 941-365-1940

Bayview Motors. An intervening second call was to directory

assistance requesting information on the Bayview Motors number

(Vol. XXIV, TR 1908). State Exhibit 13 verified the call from 739-

1052 to 365-1940 on August 17, and on August 15 at sixteen minutes

after midnight there was a directory assistance direct dialed call

to 941-364-9335 (Vol. XXIV, TR 1912).

Edward Kolek testified that while walking to the Columbia’s

Restaurant just after 10:00 P.M. on August 17, 1995 -- and wearing

Lapidus cologne -- he passed a woman wearing a tight-fitting

Spandex type silver gray dress with black high heels and a man

following her seventy-five feet behind (Vol. XXIV, TR 1915-1919).

He concluded that it must be a lover’s quarrel (Vol. XXIV, TR

1921). Later at about 12:30 he walked home and heard a sound and

saw dim lighting at the Edenson house (Vol. XXIV, TR 1922). The

next day he saw police cars and crime tape at Paul Edenson’s house.

He informed police about the noise he had heard there but did not

mention the man and woman he had passed since he made no connection

with the two incidents (Vol. XXIV, TR 1925-1926). On the following

14

Friday he saw the pictures of the man and woman on television -- he

immediately recognized the man’s photo -- and called police (Vol.

XXIV, TR 1927-1928). Appellant in court appeared to be the same

man with his hair shorter (Vol. XXIV, TR 1928).

On August 25, 1995, Beth Muniz, public information officer

with the Sarasota Police Department, released a photo of Trease to

the media following his August 17 arrest for the Edenson homicide

(Vol. XXIV, TR 1935-1936).

Ismail Elginer, a former employee of Bayview Motorcars, saw

appellant Trease there in February of 1995. Trease brought in a

1983 Mercedes-Benz and he came in almost everyday for a week with

his girlfriend (Vol. XXIV, TR 1938-1939).

Margarida Wortmann of Brazil went to St. Armands Circle about

9:15 on August 17, 1995 with her friend, Edjanira Viana (Vol. XXIV,

TR 1945). They entered the Cha Cha Coconuts lounge about 9:30 and

a man was sitting next to Edjanira; the man was depicted in the

photo exhibit 10 (Vol. XXIV, TR 1947-1948). Her friend wrote her

phone number on a piece of paper and the man took it from her hand

when he left. A nervous looking woman came in and sat down with

the man (Vol. XXIV, TR 1949-1950). Appellant said he knew her,

that she was police (Vol. XXIV, TR 1951-1952). The man and woman

left and appeared to be arguing (Vol. XXIV, TR 1955).

Edjanira Viana was with her friend Margarida at Cha Cha

Coconuts on the evening of August 17, 1995. She identified

appellant in court as the man who sat next to her (Vol. XXIV, TR

15

1969-71). He said his name was Robert; she was wearing jewelry,

maybe five or six rings. He asked for her phone number and she

wrote it on a piece of paper (Vol. XXIV, TR 1972-1977). Trease

told her he was police. A nervous woman sat next to appellant

(Vol. XXIV, TR 1978). He said he had to go because the woman was

also with the police (Vol. XXIV, TR 1979).

The state and defense stipulated that the photo of appellant,

exhibit 10, was taken on February 16, 1995 (Vol. XXIV, TR 1988).

Crime scene technician Jackie Scogin discussed the gathering

of evidence at the crime scene and evidence acquired from the

Pennsylvania state police as well as items recovered from the

Braden River (Vol. XXIV, TR 1992-2037).

Crime scene technician Janet Elser attended the Edenson

autopsy and described the items collected (Vol. XXIV, TR 2058-

2059).

Sergeant Howard Hickok supervised technicians Scogin and Elser

(Vol. XXIV, TR 2060). He recovered a latent print of value from

the front door interior of the Edenson home (Vol. XXIV, TR 2061).

He was also a member of the dive team that recovered a large

plastic bag depicted in photo exhibit 48 (Vol. XXIV, TR 2062).

Heather Tomlinson, a Pennsylvania friend of Hope Siegel,

testified that Siegel and appellant visited her in August of 1995,

a couple of days before Hope’s arrest (Vol. XXV, TR 2078-2079).

She saw Trease in possession of a black handgun, a stun gun and a

gun that looked like a tire gauge (Vol. XXV, TR 2081). She saw

16

Trease put the gun in the mattress of the bed where he and Hope

were sleeping (Vol. XXV, TR 2083). Hope’s demeanor and emotions

changed when she was not in the presence of appellant; she was

crying, shaking and visibly upset right after Trease left her

presence (Vol. XXV, TR 2084-2085). Hope told her she would never

see the witness or her family again, that she was stuck with

appellant for the rest of her life and that she couldn’t tell what

she knew or what he was capable of (Vol. XXV, TR 2086). Heather

began asking questions and Hope answered that he hadn’t robbed a

bank, answered no when asked if he killed anyone and then Hope

asserted that she couldn’t let Trease know that she’d been crying

and went into the bathroom to wash her face (Vol. XXV, TR 2088).

After a discussion both defense counsel and appellant agreed it

would be preferable not to give a limiting instruction on the

proffered testimony that Trease asked the witness if she knew

anyone with money, with a safe, to rob. The court did instruct the

jury, with defense counsel’s concurrence that appellant was not on

trial for anything other than the crimes charged (Vol. XXV, TR

2089-2098).

Tomlinson testified that appellant asked her if she knew

anybody or stores that had a safe to rob (Vol. XXV, TR 2100). She

observed appellant take medication – Valium and Vicodin – which he

claimed was for a heart condition (Vol. XXV, TR 2101). Tomlinson

left the apartment with Hope to get money that was supposed to be

wired by Hope’s mother and police pulled them over and arrested

17

Hope (Vol. XXV, TR 2101-2102). The witness gave authorities

consent to search her apartment (Vol. XXV, TR 2102).

Trooper Richard Terek of the Pennsylvania state police learned

there was a fugitive witness warrant for Hope Siegel and that Hope

Siegel and appellant were at the Pine Apartments. A surveillance

was also set up (Vol. XXV, TR 2109-2110). Surveillance was also

set up at a Western Union shop in Latrobe ten miles away. The

white Chevy S-10 pickup truck carrying Siegel and Tomlinson passed

by at 6:39 P.M. on August 24, 1995 (Vol. XXV, TR 2110-2111). They

stopped the truck, the vehicle was searched and a brown shoulder

holster was behind the driver’s seat. Hope told them the gun was

at the apartment with her boyfriend Trease (Vol. XXV, TR 2111-

2112). When police entered the Tomlinson apartment, appellant made

a leaning motion toward him but stopped when he saw Terek’s gun

pointed at him (Vol. XXV, TR 2115). Trease was told he was not

under arrest and informed the officer the gun was in the bedroom

between the box spring and mattress. Appellant was read his

Miranda rights (Vol. XXV, TR 2116). Trease agreed to talk. Trease

admitted coming to Pennsylvania from Sarasota with Hope Siegel. At

this point the witness was unaware that Trease was wanted for a

murder (Vol. XXV, TR 2118). The gun was recovered where appellant

said it was. Appellant explained that Hope had found the weapon at

her mother’s place, in the back yard by the pool. Trease also

mentioned having a pen gun, can of mace and a Taser stun gun (Vol.

XXV, TR 2119-2120). Trease reported that he had a heart condition

18

and they allowed him to take medication (Vol. XXV, TR 2121).

Trease was later told that he was being placed under arrest for

murder at 9:30 P.M., August 24 (Vol. XXV, TR 2121-2122). Appellant

vehemently denied any involvement and asked how Terek had found out

about this. He said he didn’t believe Hope would say anything like

that and wanted to talk to her. When told that Sarasota detectives

had information about the homicide, appellant expressed the desire

to talk to them when they arrived (Vol. XXV, TR 2122).

FBI agent mark Sykes similarly described the apprehension of

Siegel and Trease (Vol. XXV, TR 2125-2136) as did Corporal Roger

Pivirotto (Vol. XXV, TR 2138-2144) and FBI agent John Gera (Vol.

XXV, TR 2146-2150) and Corporal Robert Stauffer (Vol. XXV, TR 2150-

2155).

George Lowther testified that appellant had the hair shaved

off his head while incarcerated at the Pennsylvania facility on

August 26, 1995, and his hair was collected by authorities in case

the detectives needed it (Vol. XXV, TR 2159-2162).

Margarida Wortmann testified that the man sitting next to her

at Cha Cha Coconuts asked her friend for her phone number. Her

friend responded that she didn’t have a phone because she was poor

and Wortmann told him she’s lying, she has a phone number and is a

very rich woman (Vol. XXV, TR 2195-2196).

David Shorin met Hope Siegel in the spring of 1995, dated her

a few times and owned a variety of firearms (Vol. XXV, TR 2198-

2199). Shorin owned a safe in his home; his apartment was

19

burglarized on June 25, 1995, and the items taken included a Glock

19 with thirty round magazine, a Taurus .357 revolver, a Beretta

.22 automatic, a pen gun and other guns, bullets and knives.

Exhibit 27 was the safe he had (Vol. XXV, TR 2200-2204).

Deputy Heidi Rodgers Pittman responded to the reported

burglary of the Shorin residence. The point of entry was a bedroom

window, no fingerprints of comparison value were obtained and

numerous items of value in plain view were not taken. A safe and

some weapons were on the list of items reported stolen (Vol. XXV,

TR 2221-2223).

Becky Bishop knew appellant when she lived in Sarasota; she

met him at Gecko’s restaurant the week before Halloween in 1994

(Vol. XXV, TR 2226-2228). She gave him her phone number and he

called her three days later. They dated for about a month.

Appellant told her he was a drug enforcement agent and she saw him

practicing karate moves in front of a mirror (Vol. XXV, TR 2229-

2232). Trease told her they could make a lot of money but the

court granted a defense motion to strike and instructed the jury to

disregard the question and answer about whether she had any rich

clients (Vol. XXV, TR 2234-2235). The court denied a subsequent

mistrial motion regarding Ms. Bishop’s testimony (Vol. XXV, TR

2238).

Trooper Harry Keffer of the Pennsylvania State Police assisted

the Sarasota Police Department in the homicide investigation. On

August 24, 1995, while conducting surveillance in the area of the

20

Pines Apartments, Keffer was present shortly after a 1988 Chevy S-

10 pickup truck was stopped. Hope Siegel was taken into custody

pursuant to a federal material witness warrant (Vol. XXVI, TR 2253-

2254). He gave her Miranda warnings and she signed a waiver at

8:21 P.M. (Vol. XXVI, TR 2254). She agreed to talk about the

homicide even though she was not under arrest for that crime.

Keffer was not aware that she was involved in it. No promises or

threats were made to her (Vol. XXVI, TR 2255). After talking to

her for about an hour and a half Siegel agreed to give a taped

statement at 10:00 P.M. Exhibits 99 and 100 were admitted into

evidence and the tape (Exhibit 100) was played to the jury (Vol.

XXVI, TR 2256-2262; TR 2263-2318).

Corporal Stauffer was recalled and testified that when he

searched Hope Siegel’s white Chevy S-10 pickup truck he located a

stun gun in a purse in the front seat, Exhibit 7 (Vol. XXVI, TR

2329). Other items retrieved in a gym bag included an empty bullet

clip, a thirty-one round Glock clip, a male golf shirt, male socks

and latex gloves (Vol. XXVI, TR 2333).

Doug Gaul, FDLE crime lab analyst assigned to the latent print

section, testified that he was not able to obtain any latent prints

of value from the rubber glove tip (Exhibit 16), the handgun and

magazine (Exhibit 9), live rounds of ammunition (Exhibit 77), one

magazine and fold over plastic bag (Exhibit 29) (Vol. XXVI, TR

2338).

Billy Hornsby, FDLE crime lab analyst in the ballistics

21

section, testified that the Exhibit 9 Glock 9 mm. pistol and

magazine was functioning properly and the trigger pull was

approximately six pounds (Vol. XXVI, TR 2346). The sixteen unfired

9 mm. Luger cartridges consisted of four Federal hydroshocks, ten

Winchester Black Talons, and two Glaser safety slugs (Vol. XXVI, TR

2346-2347). Exhibit 30 was a Federal brand cartridge case found

under the seat of the white Chevy S-10 pickup (Vol. XXVI, TR 2347).

Hornsby determined that the Exhibit 30 cartridge case was fired

from the Exhibit 9 Glock and the fragments recovered from the crime

scene (Exhibits 21-25) were too damaged for him to determine

whether fired from a particular weapon (Vol. XXVI, TR 2348-2349).

Marta Strawser, FDLE crime lab analyst in the hair section,

determined that head hair samples from appellant and from victim

Edenson were not suitable for comparison (Vol. XXVI, TR 2362). She

described the hairs that were submitted to her from the scene, none

of which she would describe as long strawberry blonde (Vol. XXVI,

TR 2362-2364).

Kathy Benjamin, FDLE forensic serologist, received known blood

samples of Robert Trease, Hope Siegel, Paul Edenson and officer

Terry Winkel. All had different DNA profiles (Vol. XXVII, TR 2384-

2385). She got results on Exhibit 31 (hairs removed from the

victim’s robe), Exhibit 32 (hairs from the right shoulder of the

victim’s robe), Exhibit 46 (hairs from the sheet), Exhibit 56

(trace evidence from the right hand), Exhibit 47 (from the

bathrobe), Exhibit 58 (trace evidence from the face and mouth)

22

(Vol. XXVII, TR 2390-2391). The DNA profiles on the hairs matched

Paul Edenson (Vol. XXVII, TR 2392). Other hairs tested were

inconclusive. Bloodstains that were recovered either belonged to

Paul Edenson or were inconclusive (Vol. XXVII, TR 2394).

Fingernail clippings were consistent with Edenson and of two

cigarette butts one was consistent with originating from Officer

Winkel and the other inconclusive (Vol. XXVII, TR 2396). The

Exhibit 72 holster had a spot of blood and the DNA was appellant’s

(Vol. XXVII, TR 2396). None of the items tested matched the DNA

profile of Hope Siegel (Vol. XXVII, TR 2398).

FDLE shoe print impression expert Ed Guenther opined that the

shoe in the photograph Exhibit 47 could have left the impression in

Exhibit 20 (Vol. XXVII, TR 2408).

Kathleen Lundy of the FBI Materials Analysis Unit testified

that the fragments and jackets on the bullets tested were the same

alloy class, about 90% copper and 10% zinc (Vol. XXVII, TR 2418).

She excluded Black Talons and Blue Tips as used in the homicide.

One Federal round was consistent with the lead fragments found at

the scene (Vol. XXVII, TR 2420-2421) and Exhibit 30, a spent casing

recovered under the seat of the pickup truck was a Federal (Vol.

XXVII, TR 2421). The fragments and bullet case of the Federal

cartridge were all manufactured from the same source of lead as the

Federal ammunition plant in Minnesota (Vol. XXVII, TR 2422).

Jeffrey Colson had a business relationship with the appellant

a couple of years earlier and at a dinner at Trease’s home in Las

did not want counsel to attempt to impeach Colson by showing he had

a prior felony conviction since it would give the jury the

impression he hung around with convicted felons (Vol. XXVII, TR

2447-2448).

23

Vegas appellant demonstrated a movement showing proficiency in the

martial arts. Trease said he was a black belt Karate (Vol. XXVII,

TR 2441-2442). Trease also displayed handmade knives and

demonstrated how they might be used to disable another person (Vol.

XXVII, TR 2443). Trease demonstrated to Colson moving the knife

Brigitte Berousek dated appellant from February to the end of

May in 1995. She did not see him in August (Vol. XXVII, TR 2449-

2450). She did not see him the night of the homicide although she

was living with him during this time. In March of 1995 he asked

her if she knew anybody that had valuables, drugs, money or safes

to burglarize them. When living with him she observed him practice

martial arts (Vol. XXVII, TR 2450-2451). On August 15, 1995 she

received a phone call at work (364-9335) about midnight from

appellant (Vol. XXVII, TR 2452).

In April she met Hope Siegel who had a prior relationship with

Trease (Vol. XXVII, TR 2453) and Siegel appeared to be angry and

upset (Vol. XXVII, TR 2455). (On a proffer outside the jury’s

presence the witness stated that on that occasion Siegel appeared

to be under the influence of drugs or alcohol.)(Vol. XXVII, TR

2462).

24

Detective Ralph Robinson observed the victim lying inside his

home wearing a large gold necklace and gold bracelet on August 18,

1995 (Vol. XXVII, TR 2482). Investigation using phone records from

Edenson’s Bayview Motorcars business led to Hope Siegel. A Chevy

S-10 pickup truck was registered to Hope Siegel and they were

looking for a female (Vol. XXVII, TR 2482-2483). They went to her

mother Mary Siegel’s residence on August 24 and later that evening

learned that Hope had been picked up by Pennsylvania authorities.

Robinson and Detective Wildtraut flew to Pennsylvania the next day

and learned that Trooper Keffer had taken a statement from her and

the witness talked to Siegel on the 26th (Vol. XXVII, TR 2484-

2485). She was cooperative and gave a more detailed statement than

Keffer provided. Siegel informed him about two Brazilian women

with Trease at Cha Cha Coconuts on August 17 and Robinson succeeded

in finding them on July 16, 1996 (Vol. XXVII, TR 2485-2486). He

also was able to verify information she furnished about her going

to Tink’s Bar with Trease after the homicide (Vol. XXVII, TR 2486).

He located waitress Rebecca Bostic (Vol. XXVII, TR 2487). Robinson

interviewed appellant at 1945 hours on August 26 and after Miranda

warnings Trease initially couldn’t remember where he was on the

17th (Vol. XXVII, TR 2488-2489). Trease claimed he would have been

staying at the Siegel residence on the 17th and indicated that he

both knew and didn’t know St. Armand’s Circle in Sarasota (Vol.

XXVII, TR 2490-2491). Trease admitted he had been at Cha Cha

Coconuts but wasn’t sure if he was there Thursday, August 17 (Vol.

25

XXVII, TR 2492). He claimed he didn’t own a gun and explained that

the nine millimeter recovered in Heather Tomlinson’s apartment was

found by Hope Siegel on the bank of a creek (Vol. XXVII, TR 2493).

After Ms. Siegel was transported back to Sarasota and on

September 11 assisted police in locating the safe and a bag she had

thrown into a river. Both were found where she indicated (Vol.

XXVII, TR 2495-2497). The bag contained a knife protruding through

a plastic bag (Vol. XXVII, TR 2498). Trease explained on August 26

he was taking medication, Valium and hydrocodone for a heart

condition (Vol. XXVII, TR 2498-2499). Ms. Siegel demonstrated how

Trease had slit the victim’s throat but said but said she wasn’t

sure which hand he used (Vol. XXVII, TR 2507).

Detective Daniel Wildtraut added that Mary Siegel had wired

money to Hope (Vol. XXVII, TR 2511). Trease claimed in his

interview that he had previously taken a 1980 Mercedes he owned to

Bayview Motors and met with Paul Edenson and tried to work out a

deal where Bayview Motors would take the vehicle on consignment but

they could not agree on a price (Vol. XXVII, TR 2518). Trease

wanted to talk to Wildtraut again on September 6, 1995. Trease

stated that he wanted to speak to Hope Siegel, that she was only

twenty-four years old with a baby and that "he might have to take

the fall for her" (Vol. XXVII, TR 2519-2520). On September 11

appellant wished to speak to Wildtraut again; Trease asked if

Siegel had been charged with anything, stated that he didn’t want

her charged with anything and that she did not kill Edenson (Vol.

26

XXVII, TR 2521). Trease stated he didn’t kill the victim either,

that he was forty-five years old and didn’t care whether he lived

or died (Vol. XXVII, TR 2522). At the end of the conversation

Trease blurted out "did you get wet?" (Vol. XXVII, TR 2522). When

asked what he meant by that Trease stated that he heard they were

diving for evidence in Florida (Vol. XXVII, TR 2522). On September

18, Wildtraut called Trease pursuant to the latter’s request and

appellant denied the killing, stating that if he had would he be

stupid enough to keep a witness or be caught by police with the

murder weapon. After hesitating he asked if the witness knew that

was the murder weapon. Trease stated that he would be found not

guilty, that he didn’t care what happened to Hope Siegel and she

could fry for what she did to him. He claimed to have an airtight

alibi (Vol. XXVII, TR 2524). On September 28 Wildtraut went to the

Edenson residence and located some knives that appeared to match

the knife found in the river (Vol. XXVII, TR 2525).

Psychiatrist Dr. Daniel Sprehe testified that Valium

(diazepam) and Vicodin (hydrocodone) are not heart medications.

The former is a mild tranquilizer to relieve anxiety and would not

cause impairment of memory and the latter is an analgesic, a weaker

than morphine pain killer which also would not cause memory loss

over a period of time (Vol. XXVII, TR 2537-2538). Sprehe reviewed

the dosages administered to Trease at the Westmoreland County jail

August 25 through August 31 and opined they would have negligible

effect on the ability to remember or recount events in the previous

27

seven to ten days (Vol. XXVII, TR 2538-2540).

Lieutenant Gordon Hoffmeister, an experienced instructor in

stun guns with the sheriff’s office, testified that Exhibit 7 was

an imitation type stun gun made in Korea which he tested on himself

and it did not render him immobile, cause him to drop to the ground

or stop him from carrying on a conversation (Vol. XXVII, TR 2552-

2553). Stun guns can leave marks on the body (Vol. XXVII, TR

2553). If placed on someone’s back through a robe long enough to

render the person immobile there would be signature marks on the

body (Vol. XXVII, TR 2556).

The defense called Rebecca Bostic, an employee of Tink’s

Lounge, who observed appellant and his female companion on August

17-18, 1995 (Vol. XXVIII, TR 2572). On cross-examination, the

witness admitted that she did not go to the bathroom to see if

Trease’s companion was crying, the bar was dark that night and she

didn’t notice scrapes or bruises on the hands of either customer

(Vol. XXVIII, TR 2579-2580).

Outside the presence of the jury Heather Ciambrone declined to

answer any questions regarding statements of Hope Siegel, asserting

her Fifth Amendment privilege of self-incrimination (Vol. XXVIII,

TR 2584-2586).

Janene Silkwood testified that she was in the same Manatee

County jail cell in 1995 with Hope Siegel (Vol. XXVIII, TR 2593).

Silkwood was currently serving a sentence for conspiracy to commit

first degree murder, grand theft auto, burglary of a dwelling and

28

accessory after the fact (Vol. XXVIII, TR 2595). The witness

claimed that she helped Siegel write a letter to Trease because

Siegel hoped Trease would respond and incriminate himself (Vol.

XXVIII, TR 2597). Hope told her in December of 1995 that she shot

Edenson and had slashed his throat and used a stun gun on the

victim (Vol. XXVIII, TR 2598-2599). Hope also told her that she

was a witness to Trease killing the victim and that it was a Mafia

hit (Vol. XXVIII, TR 2600). Siegel and Silkwood had a subsequent

falling out and in March 1996 the witness wrote a letter to Trease

(Vol. XXVIII, TR 2601). The witness claimed that Siegel was

laughing when she described killing Edenson (Vol. XXVIII, TR 2604).

On cross-examination, the five-time convicted felon witness

admitted that Siegel was emotional and crying when she related that

appellant had shot and sliced the victim’s throat (Vol. XXVIII, TR

2605-2606). She was so upset she had a paralytic attack. Siegel

told her that Trease had worn rubber gloves (Vol. XXVIII, TR 2606-

2607). Siegel also told her that she didn’t leave the defendant

because she was afraid he’d kill her family and that he’d kill a

police officer if they were pulled over (Vol. XXVIII, TR 2607).

Siegel and Silkwood told each other a lot about their respective

cases because there were similarities, involving a male codefendant

who was the major culprit (Vol. XXVIII, TR 2608). Throughout their

discussions between September and December of 1995 Siegel seemed

genuinely scared and would cry hysterically when detailing the

murder (Vol. XXVIII, TR 2608-2609). Silkwood did not tell any

29

police officers, attorneys or detectives about Siegel’s December

admissions until March of 1996 (Vol. XXVIII, TR 2610-2611). After

December of 1995 she and Siegel had an argument and Silkwood had

great animosity toward her (Vol. XXVIII, TR 2612). After this

animosity developed Silkwood told about the so-called second

version of events (Vol. XXVIII, TR 2612) and she sent a friendly

letter to Trease; in this second version Silkwood claims Siegel

told her that Trease was not even present, that he was with a

girlfriend named Bridgette (Vol. XXVIII, TR 2603), that Siegel

claimed she used a stun gun on the victim’s back and was carefree

and unemotional when relating it (Vol. XXVIII, TR 2613-2614).

Silkwood gave a twenty-three page sworn statement to defense

investigator Steele on March 7, 1996 during the peak of her

animosity with Siegel and never mentioned Siegel’s prior statements

from September to December 1995 in which she had emotionally

recited the details of Trease committing the murder (Vol. XXVIII,

TR 2615-2617). Silkwood told Steele on March 7 she believed Siegel

was telling the truth in the second version but she was not telling

the truth when she said that under oath (Vol. XXVIII, TR 2619). In

her deposition of November 29, 1996 Silkwood admitted that she was

not truthful to Steele was because of her animosity to Siegel; she

was upset with her because Silkwood felt Siegel was communicating

with her ex-husband (Vol. XXVIII, TR 2620-2621). She admitted

being internally inconsistent in her statement (Vol. XXVIII, TR

2622). After giving this second version, when interviewed by

30

Sarasota Police Detective Robinson, Silkwood reported the first

version given by Siegel (which she hadn’t told defense investigator

Steele). In fact she told Robinson that the second story sounded

crazy (Vol. XXVIII, TR 2624-2625). She admitted she thought her

talking to Steele would be the end of it and was upset and

surprised when called to testify and realized that repeating what

she told Steele would assure she wasn’t charged with perjury.

Silkwood acknowledged taking the Fifth Amendment at the first

deposition because it could subject her to perjury charges (Vol.

XXVIII, TR 2625-2627). She had a change of heart about testifying

when the judge gave her a six-month jail sentence (Vol. XXVIII, TR

2627) and she was testifying to get out of the six months contempt

incarceration (Vol. XXVIII, TR 2628).

Tonya Sterling, another cellmate of Hope Siegel, claimed that

Siegel told her that Trease physically made her pull the trigger

with his hand (Vol. XXVIII, TR 2642). Sterling added that Silkwood

and Siegel had a falling out after December of 1995 (Vol. XXVIII,

TR 2648). On cross-examination the witness indicated that she had

very limited discussion with Siegel about the facts of the case,

only one short conversation (Vol. XXVIII, TR 2649). There was no

reference to the throat being slashed and Siegel was emphatic that

Trease was the controlling force in the homicide, and that

everything she did was because Trease made her do it. Siegel never

said she acted alone, nor did she mention a stun gun. Siegel said

she was a victim herself. Sterling witnessed the animosity of

31

Silkwood to Siegel (Vol. XXVIII, TR 2650-2652). It was apparent

Silkwood hated her (Vol. XXVIII, TR 2652).

Dr. Cynthia Bailey, a neuropsychologist, testified that she

interviewed and examined Hope Siegel on November 2, 1992 in

relation to automobile accident injuries sustained September 20,

1992, and at that time Siegel was suffering from problems with

temper control (Vol. XXVIII, TR 2673). She determined that her

I.Q. was 82, the low average range of intellectual functioning and

Siegel reported to her feeling depressed, stressed, anxious and

difficulty in concentration since the accident (Vol. XXVIII, TR

2674). Bailey determined that Siegel was emotionally stable,

empathetic and warm, had a reasonable control of her issues of

anger and hostility and that her symptoms were consistent with post

concussion syndrome (Vol. XXVIII, TR 2676).

After the jury returned its guilty verdicts, at a hearing on

December 13, 1996, defense counsel advised the court pursuant to

Koon v. Dugger, 619 So.2d 246 (Fla. 1993), that Trease had

instructed him not to present any type of evidence in mitigation

(Vol. XXX, TR 2829). The court made inquiry and Trease confirmed

that he had refused to go to Jacksonville the day before for the

PET scan arranged by defense counsel Mercurio (Vol. XXX, TR 2829).

After referring to those present as "you stupid little assholes"

Trease confirmed his desire not to have the examination and a

32

desire not to be present during court that morning (Vol. XXX, TR

2830-31). As to the presentation of evidence appellant stated that

"Mr. Mercurio can do what he deems necessary that he must do. . .

." (Vol. XXX, TR 2832). Trease allowed defense counsel to do what

he wanted (Vol. XXX, TR 2832). He also indicated that he would be

willing to undergo a PET scan if they could still get it scheduled

(Vol. XXX, TR 2833).

At the penalty phase on December 16, 1996 it was announced

that appellant refused to be present, against the advice of defense

counsel (Vol. XXX, TR 2869-2870). The state introduced into

evidence Exhibit 1 pertaining to appellant’s armed robbery of

Colleen Joy Harmon on November 19, 1972 (Vol. XXX, TR 2895-96).

Edward Beran next testified regarding he and his family being

victims of robbery and assault on January 7, 1981; see also

Exhibit 2 (Vol. XXX, TR 2897-2902). During the episode, his wife

and son were tied up, Trease told his accomplice to "shoot the

motherfucker" and Beran received 53 stitches to his head after

being pistol-whipped. A six hundred dollar necklace was taken

(Vol. XXX, TR 2899-2902). No one was shot but the incident

affected him and his family afterward; Beran could not sleep for

eleven days afterward and his son years later engaged in behavior

(punching a wall) that those around him had never seen in him (Vol.

XXX, TR 2902-03).

33

Karen Sherman testified that on October 27, 1981 she was

robbed and beaten by an assailant demanding her diamond ring.

Appellant’s conviction, Exhibit 3, was introduced. The incident

resulted in three surgeries, and another one scheduled and she

sustained "a fear that you just never get over." (Vol. XXX, TR

2904-2909).

Defense witnesses corrections officer Robert Owen, Michael

Davino, and Donald Corsi testified that Trease had not been a

problem in jail while awaiting trial (Vol. XXX, TR 2911-2929).

Owen and Corsi admitted they were unaware of appellant’s nine

violent felony convictions (Vol. XXX, TR 2919, 2929). Davino also

testified that when another inmate had attempted suicide Trease

hollered "inmate cut his wrist" (Vol. XXX, TR 2923), but other

inmates had also screamed for help at that time (Vol. XXX, TR

2925).

A former neighbor Lorraine Mendyk from Saginaw, Michigan,

lived next door to the Trease family from 1956 through 1959 (Vol.

XXX, TR 2931). Appellant’s father was never sober and she saw

signs of physical abuse on appellant and his sisters. The children

were fed goulash while the parents ate steaks and pork chops (Vol.

XXX, TR 2933-34). The witness hasn’t seen or heard from appellant

since 1962 (Vol. XXX, TR 2938).

During a break in testimony, trial defense counsel informed

34

the court that he would not be calling either expert Dr. Merin, Dr.

Wood or Dr. Negroski if the PET scan did not show organic brain

injury (Vol. XXXI, TR 2948-49).

Carol Rutkowski, the forty-seven year old sister of appellant

Trease, testified that their father passed away in 1972 from a

heart attack (Vol. XXXI, TR 2956). She stated that he would make

them take off their clothes and beat them with a strap. He always

drank at home (Vol. XXXI, TR 2959, 2961). Additionally, he tried

to sexually bother her in front of appellant and his sisters (Vol.

XXXI, TR 2963). He would mock appellant and tried to make him go

into his mother’s bedroom (Vol. XXXI, TR 2964). They were not

permitted to have friends when the father was at home (Vol. XXXI,

TR 2965). There were a pair of boxing gloves at home to encourage

appellant to fight (Vol. XXXI, TR 2966-67). Their father even made

appellant and his sisters beat him (the father) with a belt and dog

leash (Vol. XXXI, TR 2969). Appellant ran away in his teens and

the witness claimed she was beaten the most (Vol. XXXI, TR 2973,

2975, 2986). Her sister Linda was sexually abused by their father

from age seven to fifteen or sixteen (Vol. XXXI, TR 2978). Her

father once shot her mother in the arm (Vol. XXXI, TR 2979). The

witness admitted on cross-examination that she has been able to

hold a job, get married and raise a family and has never been

involved in any kind of violent crime (Vol. XXXI, TR 2987).

present any statutorily enumerated mitigating facts (Vol. XI, R

2030).

35

Linda Peltier, appellant’s forty-six year old sister,

similarly described physical abuse by the father and stated she had

been sexually abused (Vol. XXXI, TR 2989-97). She also had not

subsequently been involved in any crimes (Vol. XXXI, TR 3010).

On December 19, 1996 defense counsel advised the court that

the results of the PET scan were negative for organic brain damage

and that there were no other witnesses. Counsel stated that Trease

had refused permission to have his mother and daughter testify

(Vol. XXXI, TR 3019). Earlier Carol Rutkowski had testified that

appellant had a sixteen year old daughter Marisa and a photo of her

was introduced into evidence (Vol. XXXI, TR 2981-82). Following

argument the jury recommended death by a vote of eleven to one

(Vol. XXXI, TR 3054).

On January 22, 1997 after further argument (Vol. XXXI, TR

3062-3085) the court recessed and returned and imposed a sentence

of death (Vol. XXXI, TR 3086-3096).

After the filing of sentencing memoranda by the prosecutor

trial court entered its sentencing order, reciting at Vol XII, R

2235-2237:

AGGRAVATING FACTORS

36

1. The defendant was previously

convicted of other felonies

involving the use or threat of

violence to the person.

On August 29, 1973, defendant was

convicted of Armed Robbery in Milwaukee,

Wisconsin. This conviction was for a crime

committed on November 19, 1972, in which the

defendant approached a motel desk clerk,

pointed a gun at the clerk, and stole money.

On May 16, 1983, defendant was convicted

of Robbery in Los Angeles, California. This

conviction was for a crime committed on

October 27, 1981, in which defendant beat a

woman severely with his fists causing the

victim serious bodily harm in order to

facilitate the theft of her purse and rings.

On December 8, 1983, defendant was

convicted of seven felonies: Burglary;

Attempted Robbery (two counts); Robbery; and

Assault With a Deadly Weapon (three counts).

The convictions arose from an incident that

occurred on January 7, 1981, in Orange County,

California in which the defendant and two

other persons, at gunpoint, burglarized a

residence occupied by a man and woman and

their son, tied up and gagged the woman and

her son, and "pistol-whipped" the man, all to

facilitate the theft of jewelry. The man was

beaten so severely that he required more than

fifty stitches to his head. Defendant and his

accomplices stole a necklace from the woman.

The existence of this aggravating factor

was established beyond a reasonable doubt.

2. The capital felony was

committed while the defendant

was engaged in the commission

of, or attempt to commit, a

robbery or burglary.

The evidence established beyond a

reasonable doubt that defendant was engaged in

the burglary Paul Edenson’s home, and the

robbery of Mr. Edenson, when defendant killed

37

Mr. Edenson. The jury found defendant guilty

of both the Burglary and the Robbery.

The existence of this aggravating factor

was established beyond a reasonable doubt.

3. The capital felony was

committed for the purpose of

avoiding or preventing a lawful

arrest or effecting an escape

from custody.

Defendant and the victim knew one

another. They had engaged in a business

relationship immediately prior to the killing.

The defendant, at the time of the crimes, was

not concealed and made no attempt to conceal

his identity from the victim. Defendant told

his accomplice, HOPE SIEGEL, that he killed

the victim in order to prevent his

identification and because the victim had torn

defendant’s shirt.

The existence of this aggravating

circumstance was established beyond a

reasonable doubt. Furthermore, the evidence

established that the dominant motive for the

killing was the avoidance or prevention of

arrest.

4. The capital felony was

committed for pecuniary gain.

The existence of this aggravating factor

was proven beyond a reasonable doubt; however,

the court is not considering this factor

because the court has found to exist the

circumstance that the capital felony was

committed during the commission of a burglary

and robbery.

5. The capital felony was

especially heinous, atrocious

and cruel.

Defendant beat the victim to the floor.

Defendant had the victim lying face down on

the floor and defendant was sitting on the

victim. Defendant asked the victim more than

38

once where the victim’s safe was. When the

victim failed to provide an answer that the

defendant found satisfactory, defendant sent

Hope Siegel to her truck to get a gun. The

victim was thus aware that a gun was being

obtained for defendant.

Defendant stuck the gun to the side of

the victim’s head and again asked the location

of the victim’s safe. He asked the victim

several times "do you want to live?" The

victim replied "yes".

Defendant shot the victim in the side of

the head. The bullet exited above the

victim’s right eye. The victim did not die

immediately after being shot. In fact, the

victim tried to push himself up off the floor.

Based on the testimony of the medical

examiner, the victim was aware of the danger

he was in and the further danger he faced.

The defendant did not shoot the victim a

second time or otherwise attempt to effect the

instantaneous death of the victim. Instead,

while the victim was still alive (again based

on the medical examiner’s testimony and the

facts as related by Hope Siegel), the

defendant instructed Hope Siegel to get a

Knife from the victim’s kitchen. Hope Siegel

got a knife from the kitchen and gave it to

the defendant. The defendant used the knife

to cut the victim’s throat three times.

Defendant used such force that a portion of

the victim’s hyoid bone was expelled from the

victim’s throat and landed several feet away

from the victim’s body.

The victim survived this last insult for

several minutes. Defendant told his

accomplice, HOPE SIEGEL, that he had remained

with the victim until he heard the victim’s

last breath which he, the defendant, enjoyed.

The killing of Paul Edenson by this

defendant was conscienceless, pitiless and

unnecessarily torturous to the victim.

The existence of this aggravating factor

was established beyond a reasonable doubt.

39

MITIGATING FACTORS

1. STATUTORY FACTORS.

No evidence was presented to establish

statutory mitigating factors.

2. NON-STATUTORY FACTORS.

a. That defendant has adjusted well to

incarceration and has conducted himself in an

appropriate manner while in jail awaiting

trial in this case. He assisted in the

prevention of a fellow inmate’s suicide. I

find this factor to have been established to

exist by the greater weight of the evidence;

however, I give it little or no weight.

b. Defendant was physically abused as a

child and witnessed his sisters abused

physically and sexually by their father. The

abuse of both the defendant and his siblings

occurred regularly. The instances of such

abuse are too numerous to recount. The

existence of this factor was proven by the

greater weight of the evidence. No evidence

was presented to relate this factor to

defendant’s conduct in this case, or for that

matter to any of the defendant’s prior

instances of criminal behavior. Both of the

sisters of defendant who testified related

that they had not engaged in criminal behavior

during their lives. I give this factor

considerable weight.

c. Hope Siegel received a vastly

disparate sentence from that being sought for

this defendant. Hope Siegel participated in

the burglary and robbery. She did not shoot

the victim or cut the victim’s throat. She

had no foreknowledge that defendant intended

to kill Mr. Edenson. Her testimony was

critical to the successful prosecution of the

killer. The disparate sentence received by

Ms. Siegel was justified. I give this factor

little weight.

I have carefully considered and

independently weighed the aggravating and

40

mitigating circumstances which I have found to

exist. I have given great weight to the

recommendation of the jury. I concur with the

jury’s finding that the aggravating

circumstances found to exist outweigh the

mitigating circumstances found to exist.

Trease now appeals.

41

I. The lower court did not err in denying a defense request

for a second attorney to assist since trial counsel was very

experienced in criminal cases and the credibility rationale

advanced below is insubstantial. This Court has rejected similar

requests. Armstrong v. State, 642 So.2d 730 (Fla. 1994); Ferrell

v. State, 653 So.2d 367 (Fla. 1995).

II. The lower court did not abuse its discretion in refusing

to appoint different counsel. The lower court carefully listened

to the reasons propounded for appointing different counsel and

properly concluded that they were meritless. Trial counsel

Mercurio could and did provide capable, effective representation.

III. The trial court’s ruling on the state’s motion in limine

#1 correctly followed the requirements of this Court’s decision in

Edwards v. State, 548 So.2d 656 (Fla. 1989), appellant acquiesced

and agreed to the ruling and Trease was not prohibited from

presenting a defense. The trial court properly allowed the

prosecutor to introduce Hope Siegel’s prior consistent statement

made to Pennsylvania Trooper Harry Keffer on August 24 prior to her

arrest or being charged with the Edenson murder since appellant

opened the door on cross-examination by suggesting that her motives

included favorable terms of a plea bargain, that she was not

charged with certain offenses and that her agreement with the state

42

included testifying both truthfully and consistently with earlier

statements.

IV. The lower did not err reversibly by permitting improperly

the admission of evidence of other crimes. The trial court

properly admitted testimony of the Shorin burglary since the gun

used in the instant homicide was stolen in that burglary. Other

challenged evidence was not Williams-rule evidence and was relevant

for various issues at trial.

V. The trial court properly accorded only minimal weight to

the non-statutory mitigating factor of helping to prevent another

inmate’s suicide.

VI. The lower court did not err in finding the aggravator of

avoid arrest since the victim and appellant had done business

together and appellant expressed to his cohort the motive to

eliminate a witness who could identify him.

Criminal Trial Law.

43

Prior to trial appellant through his attorney Mr. Mercurio

filed a motion to appoint co-counsel (Vol. I, R 58-59). At a

hearing on November 15, 1995 on the motion, defense counsel

indicated that the co-counsel he had in mind was David Denkin (Vol.

XIII, TR 13). Counsel stated that the reason for the request was

that the state indicated that it was seeking the death penalty

(Vol. XIII, TR 14). The court responded, "That’s why I appointed

you because you’re tremendously qualified, you have the ability,

you’ve handled many of these cases. . ." (Vol. XIII, TR 14) and

inquired whether there was any specialized knowledge that Mr.

MR. MERCURIO: I wouldn’t say that he has

any specialized knowledge that I don’t have or

possess, or the ability to obtain or possess,

but the primary reason for seeking two

attorneys in death penalty cases is, first of

all, that’s one of the standards that the

American Bar Association set for

representation in death penalty cases.

Secondly, it would allow --

THE COURT: They don’t pay the bill.

MR. MERCURIO: I understand that.

Secondly, it would allow Mr. Denkin to

concentrate on the penalty phase and for me to

44

concentrate on the guilt phase so that in the

event this case were to go to trial that I

would be able to maintain some degree of

rapport with the jury and sincerity, if I have

to make an argument that he’s not guilty of

the crime itself; and then Mr. Denkin can get

up without having lost that credibility, if

the jury has reached a verdict against him,

and still maintain the credibility and deal

with the issues in the penalty phase. That’s

one of the other factors. It’s primarily

related to that and the ability to spend a

significant amount of time dealing with that

issue.

(Vol. XIII, TR 14-15)

Mercurio acknowledged that Florida case law did not articulate an

entitlement to two attorneys and "I would be misrepresenting the

law if I said that" (Vol. XIII, TR 18). The court repeated that

the reason it had assigned Mr. Mercurio to this case was that with

his reputation and experience "you’re one of the most qualified

people that we have in this circuit" (Vol. XIII, TR 18). The court

added:

THE COURT: That’s what I figured, and

I’m in agreement with that, not that we -- I

understand the necessity to keep costs down,

and, certainly, if it was necessary for his

defense, I would do whatever to give him a

defense equal to somebody who wasn’t indigent.

I would make an order for anything that I had

to do.

But, getting back to it, I think that the

argument with regard to credibility, I think

the jurors are sophisticated to understand

that it’s a two -- and we’ve explained to them

that it’s a two-phase thing: The first phase,

they have to make a conclusion as to guilt.

And I certainly don’t think a lawyer loses any

credibility, because he’s not there putting

forth his personal views, the lawyer is there

45

arguing the facts to the jury, and so the

lawyer’s credibility, so to speak, is really

not an issue. And I think the jurors are

sophisticated enough to understand the

difference between arguing the innocence or

guilt as opposed to arguing the penalty phase.

And I would think that it would be a

tremendous -- it’s almost unavoidable that

there would be a tremendous duplication of

hours because you would both have to be kept

abreast of what happens, both lawyers would

have to attend deposition, because some parts

of it might deal with the guilt phase and some

parts might deal with the penalty phase. And

I’ve discussed this with other judges, and I

think the trend is going to be that there’s

going to be one lawyer in a death penalty

case.

Now, I’ll give you as much time as you

need and whatever hours you have to put in to

totally and completely prepare this case, I

will see to it that you’re paid for it, but

I’m not going to appoint a co-counsel at this

point, without prejudice to renew the motion

if you could come up with some type of a real

reason that -- not that this isn’t real, but a

real persuasive reason for it. So I’m denying

your motion.

MR. MERCURIO: Okay, I’ll prepare an

order for the Court, then.

THE COURT: Okay.

(Vol. XIII, TR 19-20)

The motion was denied without prejudice, and subject to renewal at

a later time (Vol. I, R 77).

The lower court did not abuse its discretion. This Court has

repeatedly rejected the argument that there is entitlement to two

attorneys in a capital case. In Armstrong v. State, 642 So.2d 730

(Fla. 1994) this Court stated:

[11][12] In his final guilt-phase issue,

Armstrong claims that his right to effective

46

assistance of counsel and equal protection was

violated because the trial judge refused to

appoint two attorneys to represent him in this

case. According to Armstrong, because of the

complicated nature of this case, he was

entitled to more than one attorney. We

disagree. Appointment of multiple counsel to

represent an indigent defendant is within the

discretion of the trial judge and is based on

a determination of the complexity of a given

case and the attorney's effectiveness therein.

Makemson v. Martin County, 491 So.2d 1109

(Fla.1986), cert. denied, 479 U.S. 1043, 107

S.Ct. 908, 93 L.Ed.2d 857 (1987). We note

that, in making his request for co-counsel,

Armstrong stated that additional counsel was

needed to ensure that the case was properly

investigated and to allow one counsel to

represent him during the guilt phase and

another to represent him during the penalty

phase to guarantee a fair trial. In ruling on

Armstrong's request, the trial judge

specifically stated that another counsel was

unnecessary and that Armstrong had been given

"almost carte blanche " access to

investigators to assist him. We find that the

trial judge acted within his discretion in

denying Armstrong's request.

(text at 737)

Subsequently, in Ferrell v. State, 653 So.2d 367, 370 (Fla.

1995) this Court declared:

[2][3] Ferrell's second claim is twofold.

The first part of this claim--that he

was denied effective assistance of counsel and

due process when the trial court refused

defense counsel's request that co-counsel be

appointed--is without merit based on our

recent decision in Armstrong v. State, 642

So.2d 730 (Fla.1994). In that case, we

explained that "[a]ppointment of multiple

counsel to represent an indigent defendant is

within the discretion of the trial court judge

and is based on a determination of the

complexity of a given case and the attorney's

47

effectiveness therein." Id. at 737.

Ferrell's attorney admitted during the motion

hearing that his case was not complicated.

(FN2) Clearly, there was no abuse of

discretion here. We also decline Ferrell's

invitation to adopt a rule that would require

the appointment of two attorneys in all

capital cases. The standard set forth in

Armstrong adequately protects the rights of

defendants in capital cases.

The reasons advanced below by the defense were insubstantial.

The loss of credibility argument is not solved merely by having a

second counsel, presumably less active in the guilt phase, becoming

the primary actor at penalty phase since the jury would attribute

the lack of success of the defense in the guilt phase to the entire

defense team. Reliance on ABA standards may be a worthwhile guide

but as Justice O’Connor observed for the Court in Strickland v.

Washington, 466 U.S. 668, 688, 80 L.Ed.2d 674, 694 (1984) they are

only guides and are not determinative of constitutional

requirements.

The lower court did not abuse its discretion in following the

failing to anticipate or predict what some future Court somewhere

might opine, especially given Mr. Mercurio’s talent and experience.

counsel informed the court that despite prior exclamations Trease

"has instructed me not to pursue a change of venue at this point."

(Vol. XIV, TR 347).

48

Mr. Trease and his defense team did not enjoy the warmest

relationship.

The court conducted a hearing on appellant’s motion to dismiss

court-appointed counsel Mercurio and to appoint Ben King (or Roy

Black or Deborah Blue). Trease informed the court that he did not

have the ability to hire a lawyer to represent him (Vol. XIII, TR

63). Trease complained that his lawyer stated he would work harder

if he felt his client were innocent and that his mitigation

specialist told his sister that she felt Trease would be found

guilty (Vol. XIII, TR 64). Appellant thought counsel should

relayed a prosecutor’s offer of life imprisonment which Trease did

not want (Vol. XIII, TR 68). Appellant didn’t feel comfortable

with Mr. Mercurio or his mitigation team (Vol. XIII, TR 69).

Appellant answered in the affirmative the court’s inquiry that a

major disagreement was counsel’s expression that Trease may be

found guilty and sentenced to death (Vol. XIII, TR 70). Trease

mentioned that he had written to the Florida Bar and appellant

49

urged that there had to be a conflict of interest (Vol. XIII, TR

74). He complained that a handwriting expert to show he was lefthanded

hadn’t yet done anything (Vol. XIII, TR 74) and that counsel

hadn’t interviewed people at the county jail (Vol. XIII, TR 75).

Mr. Mercurio responded:

MR. MERCURIO: Judge, I think that

statement was taken out of context in the

conversation that we had. It was one of the

first conversations I had when I first was

meeting Mr. Trease, he mentioned having read

something in a book about it, and I think what

I told him was that I’ve never had to worry

about what my personal beliefs about a case

were, that I know that there are some

attorneys that that may cause problems with

but for me personally, my personal belief as

to someone’s guilt or innocence was not

relevant as to how hard I worked.

Now, with respect to the issue of some

cases he posed, some questions about if I knew

a person was 100 percent innocent would I work

harder and if I had evidence of it, and I said

that might cause me to work a little harder if

I had 100 percent evidence that a person was

innocent, or not guilty, that that might cause

me to work harder, but that was a general

conversation about what type of impression or

comment I would make on some statement he read

in the book. So that’s my response with

respect to that.

(Vol. XIII, TR 76).

* * *

THE COURT: I don’t want to – this is kind

of a precarious topic matter, of course, but,

to your knowledge, have you conveyed any

confidential communications to anyone other

than persons who work for you in this case

without Mr. Trease’s knowledge and consent?

MR. MERCURIO: No, sir. I mean, I’ve

50

never breached the attorney/client

relationship and I’ve never communicated to

anyone without his permission and consent.

And I brought Ms. Pettry here, who’s

present in the courtroom.

(Vol. XIII, TR 77).

Judge, what this all started was, there

was a conversation between myself and Mr.

Roberts, or several conversations, where the

discussion of a potential plea was brought up,

and Mr. Roberts and Mr. Nales had suggested to

me that if there was going to be a plea in

this case and if Mr. Trease were willing to

plead guilty to the first-degree murder they

would consider waiving the death penalty and

that this had to be done on or before

September 1st, 1996. Ms. Pettry’s been

working with me side by side investigating the

penalty phase of this case. Mr. Steele has

been the private investigator assigned to the

case.

So during the month of August, after Ms.

Pettry had returned from conducting some

penalty phase investigation in Mr. Trease’s

home state where some of his family members

were, I spoke to Mr. Trease personally,

conveyed the possibility of this offer to him.

I wanted to make sure, for the purposes of

protecting myself and the record, for 3.850

reasons and other ethical concerns, that I had

someone else there with me.

And since Ms. Pettry and Ms. Pepper were

assigned to assist me with the mitigation, we

had a meeting on a Friday afternoon, and I

don’t recall if it was the weekend before

Labor Day or not, but there was a Friday

afternoon meeting where we basically went over

all the evidence in the case, which included

the fact that none of the DNA matched with Mr.

Trease, that there was no DNA found at the

scene of the crime, which includes jailhouse

statements, people that were in the cell of

the codefendant, Hope Siegel, who was the one

who implicates Mr. Trease in this murder,

where they say Hope admits she did the murder

alone without Mr. Trease’s help and other

things.

51

And we discussed at length with him the

possibility that if he were to be found guilty

by a jury that he was a good candidate, based

on what we know at the time, to be sentenced

to death in the electric chair, based on what

we know of the aggravating and mitigating

circumstance that we could legally present to

the Court.

So after that, it’s my understanding that

Ms. Pettry had a conversation with Mr.

Trease’s sister, and all of a sudden that’s

when this complaint started, that’s when we

were continuing to work on the case and Mr.

Trease refused to see Ms. Pettry and refused

to cooperate with us in the remaining portions

of the defense.

Then out of the blue I get the motion to

dismiss me as counsel. I then received from

the Florida Bar a letter from the attorney

that included a copy of a complaint written by

Mr. Trease. And the letter from the attorney

from the Florida Bar basically said that they

had reviewed Mr. Trease’s complaint and found

it to be without merit, that I’m entitled to

my opinions, that nothing I did was improper

or violated the rules of professional

responsibility. I have not seen this second

letter that he’s made reference to or that the

Court made reference to, so as far as I knew

any Bar or grievance matter had been resolved

by virtue of that being the case.

With respect to the other issues, I don’t

know if the Court wants me to go into them all

or not, but I’ll gladly do it.

(Vol. XIII, TR 78-80).

* * *

THE COURT: He’s also indicated that he

asked you to get him a –- move, I’m sorry,

move for a change of venue.

MR. MERCURIO: He did request –- probably

the very first thing when I first met Mr.

Trease, that was the first words out of his

mouth, that he wanted a change of venue

because there was no way he could get a fair

trial in Sarasota County based on the extreme

amount of publicity.

52

What I told Mr. Trease was that prior to

trial we would move for a change of venue and

that, in my experience, based on the

activities that have occurred in the 12th

Judicial Circuit and the current state of the

case law, that in all likelihood this Court

would require us to attempt to pick a jury and

see to what extent a potential jury veniring

has been exposed to the publicity relating to

this case and reserve ruling on the issue of

changing venue. He didn’t like that answer,

he’s never like that answer, he wanted me to

file the motion for a change of venue, and I

explained the manner in which I would do that

to him and have continued to explain it that

way. So that’s with respect to the motion for

change of venue, that’s what I have told him.

The burglary charge, he mentioned talking

about the burglary charge, and what –- the

discussion I had with him was basically to the

extent that he had been charged with a

burglary, the State had filed a notice of

intent to use similar-fact evidence of that

burglary charge in the first-degree murder

case, however, if he were to resolve the case

by way of a plea to the first-degree murder

case that the burglary charge in all

likelihood would disappear, meaning, in my

mind, that it would be some type of a

concurrent sentence. And then, as he’s

indicated, there was a case management

conference after that and the case was set for

trial.

So I didn’t deceive him in some fashion.

I never told him the case had been dismissed

or in any way, shape or form disappeared,

other than to suggest to him that if he pled

guilty that that was the lesser of his two

worries and that would resolve itself by way

of a plea to the murder case if that was

something he chose.

I think, quite frankly, Your Honor, the

problem with Mr. Trease and myself at this

point is not one of real questioning the

things we’ve done, it’s one of not having

liked what he was told, and that’s the

unfortunate problem when you deal with cases

of this significance of a first-degree murder

where death is a possible penalty.

53

I’ve done my best in representing clients

throughout the 12-plus years I’ve done this

and the number of death penalty cases I’ve had

to always be as honest and open with clients

as I can. I’ve told him –- and he’s even

admitted during his statement that he feels

I’ve been honest with him all along. What

I’ve told him is that, in my assessment of the

case, if he were to be found guilty of the

felony murder there is a substantial

likelihood, based on the aggravating and

mitigating factors that I’m aware of, that a

jury would recommend the death penalty. That

does not, however, mean that I will try any

less hard or to do my best to give Mr. Trease

the fairest possible trial I can and would

continue to do so.

As I’ve said earlier, Your Honor, Ms.

Pettry is present in the courtroom. If the

Court wishes to hear from her, she’s certainly

able and willing to do so.

(Vol. XIII, TR 82-84).

Mitigation specialist Cheryl Pettry testified under oath:

THE COURT: He indicates in his –- and I

assume you’ve read –-

MS. PETTRY: Yeah.

THE COURT: –- this, that you spoke with

his sister, I believe he said, yes, his

sister, and expressed an opinion that he was

guilty. Do you know what it is he’s referring

to?

MS. PETTRY: Yeah, I do. He asked his

sister to call me one day after this meeting,

and as I have told him and I tell everyone,

and I’m sure you know, a mitigation specialist

really doesn’t care whether somebody’s guilty

or innocent. We still have to do the same

amount of work and prepare for the eventuality

or the possibility that we will be going into

a mitigation phase. What I said to his sister

Linda after that meeting that Friday was,

Linda, it is my opinion that if he is found

guilty he will receive the death penalty

because the State has numerous aggravating

witnesses that are witnesses that are going to

be coming to demonstrate there’s some

54

aggravating circumstances in his life.

THE COURT: Did you at any point

communicate or have you communicated to her or

to any other person other than Mr. Trease, Mr.

Mercurio, or other people working with you or

on Mr. Trease’s behalf in this case any

communication you made to your or Mr. Mercurio

in confidence by Mr. Trease.

MS. PETTRY: No.

THE COURT: So this was just an expression

of your opinion that if he were found guilty

of murder that he would be sentenced to death.

MS. PETTRY: The gist of the conversation

was, Why did you go ask my brother to take a

plea? Well, number one, we didn’t go ask him

to take a plea. We wanted to demonstrate to

him –-

THE COURT: Excuse me, Mr. Trease, I

listened to you, I was very patient, I heard

you out, and now you’re going to let me listen

to her.

Okay, you go ahead.

MS. PETTRY: We went to discuss a possible

plea bargain with Mr. Trease, and at that

point I said to Mr. Trease, if you are found

guilty of this crime, and I don’t care whether

he did it or not, I honestly believe that you

will end up with the death penalty, and that’s

all I have ever said to anyone.

THE COURT: All right. Anything else, Mr.

Mercurio.

MR. MERCURIO: Judge, my only request is

that if the Court not grant Mr. Trease’s

request to dismiss me as his counsel and the

mitigation specialist that the Court do

whatever it can or whatever is within its

power to suggest to Mr. Trease that it would

remain in his best interest to continue to

cooperate with us, because since the time he’s

done this Ms. Pettry has attempted to go see

him at the jail and he’s refused to see her

and communicate with her. So if we are to

remain on the case, I think it’s imperative

that Mr. Trease realize that he has to

continue to cooperate with us to whatever

extent we request his cooperation, otherwise,

certainly it would be difficult for us to

continue to effectively represent his

interests.

55

(Vol. XIII, TR 85-87).

The court found that attorney Mr. Mercurio was guilty of no

impropriety either ethically or in terms of effective assistance

and denied the motion to discharge (Vol. XIII, TR 89-90). The

court inquired whether Trease wished to invoke the right to selfrepresentation

and appellant answered that he did not (Vol. XIII,

TR 91). The court entered a written order following this hearing

(Vol. II, R 367-370).

The court held a hearing on appellant’s second motion to

dismiss Mr. Mercurio, on the claim that counsel had made statements

on an elevator expressing a belief in appellant’s guilt (Vol. XIII,

TR 96) and attorney Mercurio’s motion to withdraw (Vol. XIII, TR

99).

As to Mercurio’s motion, counsel stated that Trease had filed

two complaints with the Florida Bar against him (both of which were

denied by staff counsel), that Trease had previously filed a motion

to dismiss him as counsel and the very next day granted an

interview to the television media contrary to his advice, and then

Trease filed a motion to dismiss him on the accusation of making

statements to a sheriff’s deputy (Vol. XIII, TR 99-100).

When the court inquired how he had been hampered in the

preparation of a defense Mercurio responded that it would call for

him to disclose attorney-client communications which should be done

in an ex parte proceeding without the prosecutor’s presence (Vol.

56

XIII, TR 102).

The court turned to Trease’s motion. Corrections Officer

James Clay testified that he overheard a conversation in a jail

elevator in which Mercurio stated that he did not believe that many

of his clients were innocent; he felt that most of them were guilty

(Vol. XIII, TR 104). Mercurio did not say Trease was guilty.

(Vol. XIII, TR 105). Mercurio denied making any statements like

that in the elevator on the way up to see Mr. Trease and whatever

the officer thought he heard any comment was not directed to Mr.

Trease (Vol. XIII, TR 109). The trial court denied the motion,

noting that the officer’s testimony did not recall anything

specific with regard to Mr. Trease (Vol. XIII, TR 109).

The court then reminded appellant that Trease had an option of

self-representation but that the court was not obligated to appoint

successor counsel, or if Trease could hire another lawyer he could

do so. (Vol. XIII, TR 109-110). Trease chose not to represent

himself (Vol. XIII, TR 110).

The court then conducted an in camera interview with attorney

Mercurio and appellant Trease in the absence of the prosecutor

(Vol. II, R 303-309). The court asked Mercurio what reason he had

to believe he could not effectively represent appellant. Mercurio

responded as to Trease’s uncooperativeness; that appellant claimed

to know who committed the crime but wouldn’t tell him. Mercurio

claimed Trease wanted counsel to pursue Trease’s theory but refused

to disclose the people to present to the jury as to their guilt or

57

innocence to clear him. Also, Trease wanted counsel to take an

approach that counsel thought would not be at all effective and for

which counsel was uncomfortable. As to penalty phase, counsel

claimed that Trease had told him things that he should or should

not attempt to present in court (Vol. II, R 304-305). Mercurio

added that competency of counsel was not the issue and he didn’t

understand why appellant was taking this approach with him.

Mercurio had been doing this work for over twelve years and felt

that he was one of the more competent attorneys in the area (Vol.

II, R 306). Mercurio agreed with the trial court’s summary that it

was not that Mercurio did not believe he could effectively

represent Trease, only that he could not effectively do so in the

manner he deemed to be his best interests (because of Trease’s

conduct, e.g., disregarding counsel’s advice and giving newspaper

interviews)(Vol. II, R 306-307).

Trease responded that he didn’t want to get life in prison and

he thought that if counsel were offering life they must feel he’s

going to be found guilty and Trease agreed that he shouldn’t have

given the television interview (Vol. II, R 307). The court

explained that Mercurio did not say he would not pursue Trease’s

course of defense but believed it was the wrong course (Vol. II, R

308).

Back in open court, the court found that it could not be shown

Mercurio has not acted and would not be able to act as effective

counsel for Trease and denied the motion to withdraw and the motion

58

for discharge (Vol. XIII, TR 111-112).

At this hearing, defense counsel Mercurio represented that

Trease had made remarks to mitigation specialist Cheryl Pettry

regarding a desire for self-representation (Vol. XIII, TR 116).

The court interpreted the request as a motion for emergency Nelson

inquiry. Trease responded that at one point he considered selfrepresentation

but now he did not –- "I would be –- have a fool for

a client if I did" (Vol. XIII, TR 116-117).

The court then reviewed motions provided by Trease and stated

that he had previously conducted Nelson inquiries and nothing new

was raised in these motions (Vol. XIII, TR 117-119). Trease

inquired whether he could appeal the trial court’s earlier rulings

on the motion to withdraw and to dismiss counsel (Vol. XIII, TR

119). Mercurio explained that he had informed Trease that he could

not at this point in time appeal that ruling but could do so later

in the event he were found guilty (Vol. XIII, TR 120). Trease

indicated a desire to appeal the trial court’s ruling (Vol. XIII,

TR 122). The Second District Court of Appeal dismissed Trease’s

appeal for lack of jurisdiction on January 2, 1997 (Vol. IV, R

679); Trease v. State, 686 So.2d 593 (Fla. 2DCA 1997).

At a hearing on October 31 one of the matters considered was

a motion for court inquiry pursuant to Koon v. Dugger, 619 So.2d

246 (Fla. 1993) by attorney Mercurio (Vol. III, R 451-453; Vol

59

XIII, TR 131-148). Mercurio represented that Trease had advised

him not to present any mitigation whatsoever (Vol. XIII, TR 131).

Counsel represented that he had developed mitigation evidence and

discussed it with Trease (Vol. XIII, TR 133). Trease confirmed to

the court that Mercurio had discussed the mitigating evidence with

him and responded:

Well, your Honor, he can present anything

except for anything that has to do with my

family. I’m not going to subject my family to

this charade.

(Vol. XIII, TR 133).

The court informed Trease of the importance of mitigation evidence

to the jury and appellant understood (Vol. XIII, TR 134-135).

Mercurio added that Trease had instructed him not to present

anything but today he had changed him mind and restricted the

presentation of mitigating evidence from any family members and

appellant concurred (Vol. XIII, TR 135). Defense counsel

represented that in his view the testimony and evidence from family

members would be the most critical evidence to present in the

mitigation phase if the case went that far (Vol. XIII, TR 137).

At the prosecutor’s request and without defense objection the

court made inquiry of appellant as to his level of education, the

absence of any disabilities. Trease related that he had never been

treated for mental illness or disease and took only sleeping pills

(Vol. XIII, TR 139). Trease asserted that he was fully alert, had

not used alcohol or drugs and has not been sick in the last

60

seventy-two hours (Vol. XIII, TR 140-141).

Mercurio further asserted that Trease did not even want family

members in court (Vol. XIII, TR 141).

Mercurio then stated that Trease had another motion to dismiss

counsel pertaining to events that day in the jail with Ms. Pettry

and counsel (Vol. XIII, TR 143) but after conferring with Trease

the latter had decided he did not wish to pursue it. The court

responded that if he decided to do so, send the motion and the

court would hear it (Vol. XIII, TR 144).

There is no constitutional right to a "meaningful"

relationship with counsel. Morris v. Slappy, 461 U.S. 1, 14, 103

S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621 (1983). An indigent

defendant does not have a right to have a particular lawyer

represent him. Koon v. State, 513 So.2d 1253, 1255 (Fla. 1987).

Although it is true that apparently a great deal of counsel’s

and the trial court’s time leading up to trial was consumed by

appellant’s multiple assertions of dissatisfaction, the record

demonstrates that the lower court did not abuse its discretion in

denying motions to withdraw or to discharge court-appointed

counsel. Sanborn v. State, 474 So.2d 309, 314 (Fla. 3DCA 1985).

Trease asserts that substantial deterioration of the

attorney/client relationship can result in a situation where

counsel cannot give effective aid in the presentation of a defense.

Whatever validity that may have as a general proposition, the

61

instant record shows that counsel was able to conduct a defense

despite having a difficult and uncooperative client. As noted at

the hearing on October 7, 1996 (Vol. II, R 303-309), it was not a

situation that counsel Mercurio believed he could not effectively

represent appellant but that the client’s conduct in disregarding

his advice made it difficult to effectively represent him in the

manner counsel felt appropriate (Vol. II, R 307).

Despite the usual disagreements defense counsel frequently

encounter with their clients, defense attorney Mercurio was able to

mount a capable defense, both in challenging the prosecution’s

witnesses and affirmatively presenting defense witnesses Rebecca

Bostic, Janene Silkwood, Tonya Sterling and Dr. Cynthia Bailey and

for penalty phase using corrections officers, Michigan neighbor

Lorraine Mendyk and appellant’s two sisters, Carol Rutkowski and

Linda Peltier.

With respect to the conflict of interest assertion, appellant

contends that the remark on the elevator overheard by Officer Clay

created an actual conflict of interest adversely affecting

performance. Appellee disagrees. Clay said he heard Mercurio

mention that he felt most of his clients were guilty –- he did not

say Trease was guilty. Mercurio denied making any such statement

and whatever the officer thought he heard was not directed to

Trease (Vol. XIII, TR 104-109). Additionally, attorney Mercurio

had maintained that appellant earlier had misunderstood or taken

out of context their earlier conversation. Whatever may be the

62

approach of other defense lawyers

. . . but for me personally, my personal

belief as to someone’s guilt or innocence was

not relevant as to how hard I worked.

(Vol. XIII, TR 76).

The comment about working harder if there were 100% evidence of

innocence related to a comment or impression on a statement Trease

had read in a book (Vol. XIII, TR 76). Mr. Mercurio added:

What I’ve told him is that, in my assessment

of the case, if he were to be found guilty of

the felony murder there is a substantial

likelihood, based on the aggravating and

mitigating factors that I’m aware of, that a

jury would recommend the death penalty. That

does not, however, mean that I will try any

less hard or to do my best to give Mr. Trease

the fairest possible trial I can and would

continue to do so.

(emphasis supplied)(Vol. XIII, TR 84).

Appellee disagrees that there was any disintegration of the

attorney-client relationship. The minor disagreements or

misunderstandings on pre-trial preparation were aired at the

hearings before the trial court who concluded, on the matters

presented to it, that counsel was not ineffective and could

continue to capably represent Mr. Trease. And even though Trease

at the Koon hearing on October 31, 1996, first opted to exclude the

use of family members as mitigation witnesses in the penalty phase

. . . he can present anything except for

anything that has to do with my family. I’m

not going to subject my family to his charade.

(Vol. XIII, TR 133)

63

by the time the penalty phase was actually conducted trial counsel

succeeded in persuading appellant to allow the use of his sisters

Ms. Rutkowski and Ms. Peltier to provide family background

testimony (Vol. XXX, TR 2832).

The trial court was extremely thorough in its inquiries below

to determine whether there was any legitimate basis for discharge

of court-appointed counsel because of alleged incompetence. See

Bowden v. State, 588 So.2d 225, 229-230 (Fla. 1991); Hunt v. State,

613 So.2d 893, 899 (Fla. 1992); Watts v. State, 593 So.2d 198, 203

(Fla. 1992); Toney Deron Davis v. State, ___ So.2d ___, 22 Florida

Law Weekly S701, 702 (Fla. 1997)["As a practical matter, a trial

judge’s inquiry can be only as specific and meaningful as the

defendant’s complaint" citing Lowe v. State, 650 So.2d 969, 975

(Fla. 1994)]; Larzelere v. State, 676 So.2d 394, 403 (Fla. 1996).

Appellant’s claim is without merit.

64

Perhaps the most significant factor demonstrating the falsity

of appellate defense counsel’s current argument is the absence of

any claim by the defense at trial that they were prohibited from

presenting a defense; and certainly, trial counsel would have

argued such had it been the case. It is true that the prosecutor

filed motion in limine #1 to prevent testimony:

1) That Hope Siegel worked as a

lingerie model;

2) That Hope Siegel’s employment

involved occasional sexual activity with

customers;

3) That Hope Siegel received payment

for this modeling and occasional sexual

activity;

4) That Hope Siegel used or ingested

any controlled substances, other than the time

period immediately surrounding the homicide;

5) That in the past, Hope Siegel had

been hospitalized as a result of controlled

substance ingestion.

6) That in July, 1995, Hope Siegel was

"Baker Acted" because it was believed she was

suicidal.

7) That Hope Siegel has been involved

in any criminal activity not resulting in a

conviction, other than those crimes related to

the homicide and those crimes committed with

Robert Trease which the court finds admissible

pursuant to F.S. 90.404.

(Vol. III, R. 509-510).

At a pretrial hearing on November 22, 1996 (Vol. XIV, TR. 258-

65

272) after hearing argument that as to paragraphs one, two, and

three that case law did not permit attack on the character of a

witness by showing prior bad acts that had no bearing on

credibility, the court agreed (Vol. XIV, TR. 262-263). The court

also agreed regarding paragraphs 4-6 that it would follow the

dictates of this Court’s decision in Edwards v. State, 548 So.2d

656, 658 (Fla. 1989)(Vol. XIV, TR. 268). The lower court stated:

. . . the evidence of Miss Siegel’s drug use I

will be excluding for purposes of impeachment

unless it can [sic] shown that Miss Siegel had

been using drugs at or about the time of the

incident, which is the subject of this

lawsuit, this prosecution, unless it can be

shown that the witness was using drugs at or

about the time of her testimony at trial, or,

all of this is in the disjunctive, or it is

expressly shown by other relevant evidence

that prior drug use -- that her prior drug use

affects her ability to observe, remember and

recount.

That case specifically requires that

there be something more than just her

testimony that she previously used drugs or

previously had hallucinations and so forth. I

interpret that to mean that there has to be

some other relevant evidence that would tend

to show that essentially affects her ability

to accurately recall and so forth.

(emphasis supplied)(Vol. XIV, TR. 266-267).

As to paragraph seven of the motion, the prosecutor related

that he included that as a precaution for something he did not

expect to come up. Apparently Siegel at deposition mentioned minor

offenses for which she had not been arrested or convicted and the

prosecutor did not want these matters introduced unless the court

found them to be admissible and relevant (Vol. XIV, TR. 268-269).

66

The defense indicated that it might cross-examine on her stealing

purses to get money to buy drugs to show Siegel could act on her

own, not under Trease’s domination (Vol. XIV, TR. 269). The court

indicated that it could not make a pretrial ruling -- it did not

think that the witness was a thief was sufficiently relevant other

than showing she was a bad person. The court stated that it would

allow the defense the opportunity to approach the bench and discuss

it outside the presence of the jury for the court to make a ruling.

The defense agreed this was "fine" (Vol. XIV, TR. 271-272; see also

Vol. IV, R. 658).

After jury selection and prior to opening statements on

December 2, 1996, the trial court entered its written order on the

state’s motion (Vol. IV, R. 708) and defense counsel announced that

he had no objection on review of this order (Vol. XXII, TR 1415).

In essence that order provided that the matters urged in the motion

not be mentioned "without first proffering said testimony outside

the presence of the jury" (Vol. IV, R. 708). Trial counsel’s

acquiescence and agreement with the court’s ruling constitutes a

procedural bar to now asserting error. See Lucas v. State, 376

So.2d 1149, 1151 (Fla. 1979)(This Court will not indulge in the

presumption that the trial judge would have made an erroneous

ruling had an objection been made and authorities cited contrary to

his understanding of the law); Hazen v. State, 700 So.2d 1207, 1211

(Fla. 1997); Lindsey v. State, 636 So.2d 1327, 1328 (Fla. 1994);

Correll v. State, 523 So.2d 562, 566 (Fla. 1988). The defense in

67

essence acquiesced and concurred with the trial court’s

determination that Edwards constituted the applicable law and that

the trial court was correctly applying it. Not only did trial

counsel fail to avail himself of the opportunity -- as the trial

court’s order provided and as counsel well understood since he

agreed to it -- to revisit the issue on a proffer where

appropriate, but also defense counsel made abundantly clear that

tactically he did not want Hope Siegel talking about Trease’s

criminal record or history before he even began his crossexamination

of her (Vol. XXIII, TR. 1745-1746). Appellant declares

at page 45 of the brief that "During this time period she willingly

committed burglaries with Mr. Trease to obtain money for drugs.

(Vol.6, C1105-1109,1115-1116)". But this is exactly what trial

counsel explicitly warned the court -- prior to his initiation of

cross-examination -- that he did not want Siegel to volunteer lest

he have to request a mistrial. Appellant notes that in her

deposition Hope Siegel acknowledged having worked as a lingerie

model and for an escort service and that she occasionally performed

sexual acts for cash. She additionally testified -- which remains

unmentioned in appellant’s brief -- that appellant Trease had her

put an ad in the paper for her own escort service Luscious Lucinda

(Vol. VI, R 1026). The business which could include engaging in

sexual activity or dancing while a person masturbated was Trease’s

idea (Vol. VI, R 1038). Obviously, if trial counsel had opted for

the strategy current counsel second-guesses about, it could have

of a deposition from Don Lambert. A pre-trial discovery deposition

is not admissible at trial as substantive evidence. State v.

Basiliere, 353 So.2d 820 (Fla. 1978); State v. Clark, 614 So.2d 453

(Fla. 1992). Appellant did not attempt to call Lambert as a

witness at trial and the record does not provide any information to

support a suggestion that the trial court refused to allow Lambert

to be called or whether he had proper, relevant, and admissible

testimony for use at trial. If we are now to speculate on why

defense counsel did not call Lambert as a defense witness (whom the

trial court did not prohibit) perhaps counsel felt it inappropriate

to rely on a witness with two prior felony convictions (one

involving a scheme to defraud)(Vol. VII, R. 1280-1281); who never

saw Hope Siegel with cocaine (Vol. VII, R. 1308); who was still in

love with Hope Siegel and had seen her many times in the county

jail (Vol. VII, R. 1344-1345) and whom Hope had told she went along

in the Edenson matter strictly to rob but not anything else (Vol.

VII, R. 1350).

68

opened the door to more damaging evidence about appellant which

competent counsel could seek to avoid. (In her deposition Siegel

claimed she bought drugs because appellant wanted her to get it;

Trease did not threaten her -- Vol. VI, R 1083).

The contention that the trial court prevented the defense from

presenting its defense -- especially with regard to Hope Siegel --

Siegel (Vol. XXIII, TR. 1603-1839) reveals that during her direct

testimony the defense objected about a dozen times (Vol. XXIII, TR.

1620, 1623-1624, 1629, 1644, 1647, 1667, 1726-1728, 1733, 1735-

1736, 1738), most of which were sustained. The defense crossexamination

of Ms. Siegel reveals no preclusion by the court of the

defense effort to present a defense (Vol. XXIII, TR. 1747-1818).

On this record it would appear that trial counsel, having concurred

with the propriety of the lower court’s disposition of the pre-

69

trial motion, was satisfied that he could satisfactorily impeach

the witness without resort to revisiting the issue on a proffer, as

he agreed. At the very least the defense could have asked the

court to revisit the issue during the trial if it felt the court

had misinterpreted the law or was otherwise denying them the

opportunity to present a defense.

The defense cross-examination of Siegel at trial explored the

witness’ prior auto accident and resulting effects on her (Vol.

XXIII, TR. 1749-1751), the on-again, off-again relationship she had

with Trease and intervening dating with Shorin (Vol. XXIII, TR.

1752-1767). She was asked about taking Vicodin and Valium (Vol.

XXIII, TR. 1767-1768), and taking a drink that day (Vol. XXIII, TR.

1770) and smoking marijuana with Edenson (Vol. XXIII, TR. 1774) her

visit to the Edenson house on August 17 while Trease waited for her

at Cha Cha Coconuts and arguing with him prior to the return to the

Edenson residence, followed by Mr. Trease (Vol. XXIII, TR. 1774-

1782), Trease’s physical assault on the victim, the shooting,

throat slashing by Trease and theft of the jewelry box (Vol. XXIII,

TR. 1790-1794), the trip to Pennsylvania and the reasons for not

revealing events on the way (Vol. XXIII, TR. 1796-1798), her

conversations with Pennsylvania and Sarasota officers, her being

charged with murder, incarceration in the county jail and alleged

conversations with Tonya Sterling and Janene Silkwood and plea

bargain with the state (Vol. XXIII, TR. 1800-1818).

Appellant contends that in her deposition testimony Hope

sentencing that this was a mob hit (Vol. XXXI, TR. 3085).

70

Siegel displayed "ample motive of her own to kill Paul Edenson"

(Brief, p. 44). Appellee asks where? That Ms. Siegel previously

had been a lingerie model or danced for men or at some point in her

life had used drugs hardly suggests a motive to kill Mr. Edenson

whom she had only met as a result of Trease’s efforts. It is true

that the defense presented to the jury the thesis that Siegel

rather than Trease committed the Edenson homicide, a pathetic

hypothesis that involves speculation that Siegel received unwanted

sexual advances from Edenson, left his premises only to become

enraged at Trease flirting with the two Brazilian women and

returned to Edenson’s home -- and in a jealous rage shot Edenson

with the Glock Trease was found in possession of in Pennsylvania

and slashed Edenson’s throat in a manner -- according to the

medical examiner with great force in a right to left manner with

such force as to eject tissue from the hyoid bone feet away from

the body (Trease was left-handed and proficient in the martial

arts) -- all while the hapless Trease apparently waited unknowingly

The trial court correctly ruled that this Court’s decision in

for the purpose of impeachment to the three exceptions cited

therein. Accord, Green v. State, 688 So.2d 301, 305 (Fla. 1996)(no

showing that defense witness was using the intoxicant at or about

71

the time of the incident, or the time of testimony, or that prior

use of the intoxicant affected the witness’ ability to observe,

remember and recount); Tullis v. State, 556 So.2d 1165 (Fla. 3DCA

1990) (delusions of witness were not contemporaneous with either

the jail cell conversations or the witness’ testimony); Richardson

v. State, 561 So.2d 18 (Fla. 5DCA 1990); Johnson v. State, 565

So.2d 879 (Fla. 5DCA 1990); Williams v. State, 617 So.2d 398 (Fla.

3DCA 1993). To the extent that appellant may now be arguing that

the lower court erred in obeying Edwards and its progeny, appellee

disagrees with him and the lower court correctly followed the law.

Appellant contends in this Court that the trial court

counsel acquiesced and agreed to the lower court’s pre-trial

ruling. At the beginning of his cross-examination he sought the

court’s help to insure Siegel not volunteer testimony about

Trease’s criminal history and certainly would not want to emphasize

Trease’s dominating role in having Siegel buy drugs for his benefit

(Vol. VI, R. 1052, 1083).

Appellant’s contention that Siegel’s deposition acknowledged

recent use of cocaine is answered by the fact that the trial court

answered counsel’s inquiry that Edwards and his ruling would permit

exploration if used at or about the time of the incident:

MR. MERCURIO: Judge, before we go and

leave that area, I mean there is testimony

from Miss Siegel, I believe, undoubtedly, she

will admit that on the date of the incident

she was taking, at a minimum, Vicodin and

72

Valium.

She also testified that at or about the

time of this incident, her and Mr. Trease were

involved in some type of three-day cycles of

drug usage involving rock cocaine, Vicodin and

Valium on a daily basis as well as alcohol.

So are you saying that I can get into

that?

THE COURT: What I’m specifically doing

is adopting as part of my order the Supreme

Court’s ruling at the middle of the left-hand

column of page 658.

Unless 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’ testimony; it can be shown that the

witness is using drugs at or about the time

the testimony itself; or it is expressly shown

by other relevant evidence that the prior drug

use affects the witness’ ability to observe,

remember, and recount.

I think that that specifically addresses

any drug use that she may have been engaging

in at or about the time of the alleged robbery

and homicide and so forth. Okay?

MR. ROBERTS: Yes, Your Honor.

MR. MERCURIO: Yes, sir.

(Vol. XIV, TR 267-268).

Appellant’s contention that the lower court misapplied the

Edwards standard is erroneous. Since the lower court announced it

was following Edwards it presumably was aware that the trial court

in Edwards -- whose actions were approved by the Fourth District

Court of Appeal and this Court -- had permitted counsel to question

the victim about the drug use on the days preceding the incident

and the night of the incident. 548 So.2d at 656. The trial court

had answered defense counsel’s inquiry about examining the witness

concerning drug use at or about the time of the incident (Vol. XIV,

TR 267-268). Defense counsel properly chose to confine his

73

examination within the parameters of the court’s correct ruling.

In the defense cross-examination of Hope Siegel counsel

elicited from the witness that "jail was not a nice place to be"

(Vol. XXIII, TR. 1748), attempted to establish that she received a

brain injury affecting her ability to remember (Vol. XXIII, TR.

1749), inquired as to whether she had told jail inmate Tonya

Sterling that Trease had made her put her hand on the gun and that

she shot Edenson (Vol. XXIII, TR. 1805)(Siegel denied making such

a statement), asked her if she had told jail inmate Janene Silkwood

that she had killed Edenson (Vol. XXIII, TR. 1807)(Siegel denied so

telling her), examined her on the fact that she was not charged

with robbery with a firearm or burglary of a dwelling and the

circumstances of her no contest plea to the reduced charge of

second degree murder and avoiding a possible death sentence (Vol.

XXIII, TR. 1811-1818), and that she had not been charged in the

Shorin burglary (Vol. XXIII, TR. 1814). Defense counsel examined

Ms. Siegel that part of her agreement with the prosecutor was an

agreement to testify against Trease (Vol. XXIII, TR. 1814) and that

she had agreed to testify consistently with what she had told the

police on August 24 and August 26 and that if she did not testify

consistently the state could withdraw the deal (Vol. XXIII, TR.

1815). The defense even introduced a letter -- Defendant’s Exhibit

D -- and called the witness’ attention to paragraph 4 of that

letter concerning her testimony which the prosecutor had written to

74

her lawyer, Mr. Given (Vol. XXIII, TR. 1816-1818).

As part of its response to the defense invitation, the

prosecutor called Pennsylvania Trooper Harry Keffer who identified

Siegel’s taped statement of August 24 -- made at a when Siegel was

not under arrest or charged with the Edenson murder (Vol. XXVI, TR.

2255) -- and exhibits 99 and 100 were introduced into evidence; the

tape was played to the jury (Vol. XXVI, TR. 2263-2318).

In Chandler v. State, 702 So.2d 186, 197-198 (Fla. 1997) this

Court explained:

Next, Chandler argues that the trial

court erred in admitting Kristal Mays' prior

consistent statement made on October 6, 1992,

when the existence of a fact giving rise to a

motive to falsify, the October 1990 drug money

theft, occurred before the statement was made.

We agree with the State that the trial court

did not err in admitting the prior consistent

statement. We also find any potential error

harmless.

[13] We have long held that prior

consistent statements "are generally

inadmissible to corroborate or bolster a

(Fla.1951). Since such statements are usually

hearsay, "they are inadmissible as substantive

evidence unless they qualify under an

exception to the rule excluding hearsay."

ed.)). However, prior consistent statements

are considered non-hearsay if the following

conditions are met: the person who made the

prior consistent statement testifies at trial

75

and is subject to cross-examination concerning

that statement; and the statement is offered

to "rebut an express or implied charge ... of

improper influence, motive, or recent

(quoting section 90.801(2)(b), Florida

Statutes (1989)).

* * *

We conclude that this statement was

properly admitted as rebuttal regarding the

appearance motivated her trial testimony,

since Mays testified and was subject to crossexamination,

and the statement pre-dated the

existence of her motive to fabricate, i.e.,

Fla. Stat. (1993). The October 1992

statement was undisputedly made after the

October 1990 drug money incident. However, by

appearance motivated Kristal's testimony,

Chandler could not thereafter prevent the

State from rehabilitating her testimony by

urging that another motive to fabricate

existed earlier. That was a choice that the

defendant made in urging more than one reason

to fabricate at trial. Having made this

choice, he must suffer its natural

consequences.

See also F.S. 90.801(2)(b)(statement is not hearsay if declarant

testifies at trial and is subject to cross-examination concerning

the statement and is offered to rebut an express or implied charge

against the declarant of improper influence, motive or recent

fabrication); Dufour v. State, 495 So.2d 154, 160 (Fla.), cert.

denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987)(prior

consistent statement made after robbery attempt but before the

robbery plea negotiation and the filing of the Georgia murder

charge properly admitted); Kellem v. Thomas, 287 So.2d 733, 734

76

(Fla. 4DCA 1974); Kelley v. State, 486 So.2d 578, 582 (Fla.), cert.

denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986)(where

defense cross-examined witness about a laundry list of crimes for

which he had been given immunity in exchange for his testimony

there was no abuse of discretion in admitting statement made prior

to immunity to rebut the charge of recent fabrication or improper

motive); Anderson v. State, 574 So.2d 87, 92 (Fla.), cert. denied,

502 U.S. 834, 112 S.Ct. 114, 116 L.Ed.2d 83 (1991)(prior consistent

statement admissible because it was made before plea agreement);

Stewart v. State, 558 So.2d 416, 419 (Fla. 1990); Edwards v. State,

662 So.2d 405 (Fla. 1DCA), review dismissed, 679 So.2d 772 (Fla.

1996).

In Shellito v. State, 701 So.2d 837, 841 (Fla. 1997), this

Court explained:

Section 90.801(2)(b), Florida Statutes

(1995), allows a prior consistent statement to

be used "to rebut an express or implied charge

against the declarant of improper influence,

motive, or recent fabrication." Shellito

contends that this exception is inapplicable

here because the motive to fabricate arose

before Bays made the post-arrest statement;

that is, Bays was under arrest for armed

robbery at the time he made his statement. We

disagree. First, the motive to fabricate does

not necessarily arise simply because the

witness has been arrested and charged with a

So.2d 87 (Fla.1991)(witness's prior consistent

statements to police officer, given the night

of her arrest but before her plea agreement,

were admissible to rebut implication of recent

fabrication because motive to fabricate arose

77

the questioning on cross-examination brought

out information which made it appear that Bays

had obtained details about the crime through

newspaper articles and police reports, which

were not written until after Bays had given

the statement. Thus, as the trial court

recognized, the officer's testimony was

necessary to rebut the "inference of recent

fabrication based on information obtained."

However, even were we to conclude that the

officer's testimony was erroneously admitted,

we would find the error to be harmless. The

officer's testimony was brief and at least two

other witnesses testified that Shellito had

bragged to them about committing the murder.

Appellant’s protestations to the contrary notwithstanding,

Trease’s cross-examination of Hope Siegel opened the door to the

prosecutor’s demonstrating that her present testimony was not false

or fabricated to obtain the benefits of the plea.

Appellant’s claim at page 53 of the brief that counsel did not

suggest or imply there were multiple reasons or motives to

fabricate is not accurate. For example, in the defense closing

argument Trease argued that Siegel in return for her plea to second

degree murder and to obtain a sentence of ten to twenty years must

testify truthfully and consistently with the statements she made to

police and to the proffer given the state and that she has not yet

been sentenced (Vol. XXIX, TR. 2735-2736). Counsel also argued

that in considering witnesses’ testimony they should consider "Has

the witness been offered or received any money, preferred

treatment, or other benefit in order to get the witness to

testify?" and "Did the witness have some interest in how the case

78

was decided?" (Vol. XXIX, TR. 2738). Quite apart from closing

argument, the defense cross-examination of Siegel chose to put in

issue whether her plea agreement and Defendant’s Exhibit D (the

prosecutor’s letter to Siegel’s attorney) required her to testify

consistently, as well as truthfully, with her pre-plea bargain

statements to the authorities (Vol. XXIII, TR. 1810-1818). Having

chosen to make an issue of whether Ms. Siegel’s statements were

both consistent and truthful or not, Trease cannot complain of the

jury’s receipt of evidence of her August 24 taped statement to

Trooper Keffer prior to the filing of charges and the entry of her

All evidence that tends to convict is prejudicial. Amoros v.

State, 531 So.2d 1256, 1260 (Fla. 1988). Appellant’s complaint

that it was unfairly prejudicial because the tape contains

emotional utterances of Hope Siegel must be rejected; it is not

unfairly prejudicial since Heather Tomlinson had previously

testified without objection that upon Siegel’s arrival in

Pennsylvania when not in the presence of defendant Siegel was

crying, shaking and visibly upset (Vol. XXV, TR. 2084-2088).

Finally, even if the lower court did commit error, it was

(Fla. 1986). See also Alvin v. State, 548 So.2d 1112 (Fla.

1989)(trial court did not err in admitting tape recorded statement

of Remy to rebut the inference that he had fabricated his story

79

because the state granted him immunity in exchange for his

testimony; to the extent the tape was consistent with his trial

testimony, it was admissible for this purpose. Admission of

portions of the tape containing matters not testified to was

harmless error). In the instant case the prosecutor, defense and

the court engaged in a thorough review of the tape to redact

material that Siegel had not testified about in order to satisfy

the Alvin requirements (Vol. XXV, TR. 2168-2191).

80

At a hearing conducted November 22, 1996, the trial court

considered the defense objection to the state’s multiple notices of

intent to rely on similar fact evidence (Vol. XIV, R 327-342).

With respect to the first notice filed by the state pertaining to

the burglary of David Shorin wherein a gun was stolen used in the

instant homicide as well as a safe [the safe recovered where Hope

Siegel claimed Trease had discarded it after the Edenson murder],

defense counsel conceded "with all honesty to the Court, as it

relates to Mr. Shorin, I believe it’s not truly similar fact

evidence. It’s one of a case where the facts and the finding of

the gun are inextricably intertwined with the murder case and

therefore, it’s not truly similar fact evidence" (Vol. XIV, R.

329). The remaining notices, the defense argued, concerned

incidents which were not sufficiently similar (Vol. XIV, R. 331).

The prosecutor answered that all the notices were filed in an

abundance of caution, that the Shorin burglary was not similar fact

but constituted admissible evidence since the stolen 9 mm. Glock

was the weapon used in the Edenson homicide and recovered by police

in the bedroom Trease was using in Pennsylvania (Vol. XIV, R. 331-

332).

With respect to testimony of Brigitte Berousek and Heather

Tomlinson regarding appellant’s efforts to request their assistance

81

in targeting other potential robbery victims, the prosecutor argued

that (1) it was a unique modus operandi for a defendant to ask coparticipants

about people they knew who had safes for them to

commit burglaries, and (2) was corroborative of the testimony of

the state’s chief witness where that witness’ credibility is

attacked (Vol. XIV, R. 334-335). With respect to the notices

involving the burglaries of Joseph Bavaro and Ken Creye, the

prosecutor represented that he had not decided whether to use that

evidence -- which also involved Trease and Hope Siegel -- the

prosecutor did not think he would use that evidence (Vol. XIV, R.

337), and appellant acknowledges (Brief, p. 55) that the prosecutor

did not offer testimony about Creye and Bavaro. The court

announced it would deny the defense motion to strike as it related

to the Shorin burglary whence the gun used in the Edenson homicide

derived and would take the remainder under advisement (Vol. XIV, R.

339, 341-342).

Appellant does not appear to challenge in this appeal the

correctness of the ruling concerning the Shorin burglary which is

understandable. See Griffin v. State, 639 So.2d 966 (Fla. 1994);

Amoros v. State, 531 So.2d 1256 (Fla. 1988); see also Voorhees v.

State, 699 So.2d 602, 608 n 4 (Fla. 1997)(trial court did not err

in admitting into evidence defendant’s possession of a knife

because it was relevant, as there was testimony linking the knife

to the murder scene as well as to the stolen car).

Trease raises a number of complaints under this point -- which

82

he characterizes as improper other bad acts -- that Heather

Tomlinson and Bridgette Berousek testified about appellant’s

request to provide information about people who had a safe or

money, that he lied to Hope Siegel, Becky Bishop and Edjanira Viana

by telling them he worked for law enforcement agencies, that there

was testimony of witnesses that Trease was familiar with or

practiced martial arts and demonstrated the use of knives on one’s

throat, that Trease used medications Vicodin and Valium for an

asserted heart condition when such medications do not aid the

heart, and the court disallowed testimony from Berousek that Siegel

was angry and appeared to be under the influence of drugs or

alcohol during an encounter at her job site. Although many of

these assertions do not seem to be Williams-rule issues, appellee

Appellant contends that it was improper for witnesses

Tomlinson and Berousek to provide testimony regarding his requests

that they provide information on people to target who had money or

safes (Vol. XXV, TR 2098-2100; Vol. XXVII, TR. 2451); Trease argues

that these conversations were not completed burglaries, citing

Audano v. State, 641 So.2d 1356 (Fla. 2DCA 1994), a child sexual

battery case where the appellate court concluded that the standards

of Heuring v. State, 513 So.2d 122 (Fla. 1987), were not met.

Appellee would submit that in Malloy v. State, 382 So.2d 1190,

83

1192 (Fla. 1979), this Court rejected a defense contention that

circumstances of the lounge incident do not establish all the

elements of a crime, and, consequently, the question of the

admissibility of prior criminal acts is not present." See also

Swafford v. State, 533 So.2d 270 (Fla. 1988) (testimony of witness

that defendant admitted "you just get used to it" when asked if it

bothered him to shoot a girl in the head was relevant evidence

tending to prove that he had committed such a crime two months

earlier; it did not matter that he had also suggested a crime that

had not been committed. Even if the proposal and solicitation were

not similar enough to show modus operandi, it was not unfairly

prejudicial).

Trease’s pre-homicide request to Bridgette Berousek in March

-- five months prior to the burglary and murder of Paul Edenson --

was relevant and admissible evidence. The issue at trial was

whether Trease murdered Edenson and committed a burglary and

robbery at his residence. Eyewitness Hope Siegel insisted that she

met the victim pursuant to appellant’s desire that she examine the

residence for the whereabouts of a safe containing valuables (as

Siegel and Trease had done previously in the Shorin burglary). The

defense offered the thesis that Siegel killed Edenson because she

was jealous of Trease’s paying attention to other women at a bar

84

and his arrest in Pennsylvania in possession of the gun used in the

killing was . . . a mistake. Thus, appellant’s prior request to

Berousek was not submitted to show mere propensity but rather was

specific activity showing a modus operandi of discovering and

targeting potential wealthy victims who had readily available

assets in their homes and his intent; it also is corroborative of

Siegel’s testimony. See generally Ferrell v. State, 686 So.2d 1324

(Fla. 1996)(evidence of robbery of victim days earlier explained

defendant’s motivation in seeking to prevent retaliation by

victim); Foster v. State, 679 So.2d 747 (Fla. 1996) (other crime

evidence admissible to show defendant’s motive and intent); Hoefert

v. State, 617 So.2d 1046 (Fla. 1993)(testimony of other choking

victims relevant to issue of motive); Williams v. State, 622 So.2d

456 (Fla. 1993)(evidence of attempted murder in Jacksonville four

months prior to Pensacola murders relevant to show modus operandi

in operation of his drug business). Jensen v. State, 555 So.2d 414

(Fla. 1DCA), review denied, 564 So.2d 1086 (Fla. 1990)(evidence of

prior burglaries on victim’s house admissible to prove intent since

the more frequently an act is done the less likely that it is

innocently done). Evidence of other crimes or acts can be

admissible to prove motive and in such a case it is not necessary

that the evidence be similar. Finney v. State, 660 So.2d 674 (Fla.

1995). It is also corroborative of Siegel’s testimony whose

610 So.2d 105 (Fla. 3DCA 1992)(letter from defendant to his wife

85

containing references to his prior drug use admissible in

prosecution for aggravated child abuse and battery since wife had

testified that defendant was under the influence of drugs during

one of the offenses charged; his admissions in the letter were

relevant to corroborate her testimony).

With respect to Trease’s post-homicidal request to Tomlinson,

that similarly tends to support Hope Siegel’s testimony regarding

the unsuccessful effort to find a safe containing valuables during

the Edenson burglary-murder and the limited proceeds obtained from

that crime.

Even if the Court were to find that the introduction of

evidence of witnesses Berousek and Tomlinson that appellant asked

about people with safe or money was error, such error was harmless.

See Gibson v. State, 661 So.2d 288, 292 (Fla. 1995)(harmless error

to admit testimony of two witnesses that defendant had asked to

have anal intercourse with them which they declined since the

witnesses had declined the request and, there was compelling

evidence of guilt despite the absence of eyewitness identification

[which the instant case does have]).

Trease complains about testimony from Siegel, Bishop and Viana

that he had lied to them by claiming to be involved in law

enforcement (Vol. XXIII, TR. 1625; Vol. XXIV, TR 1977-1978; Vol.

XXV, TR. 2231). Appellee submits that telling a lie about one’s

86

employment to girlfriends or to those whom one meets at a bar is

not a crime or bad act prohibited by F.S. 90.404. In any event,

appellant’s representing himself as a law enforcement officer to

Viana at the Cha Cha Coconuts -- as well as representing Hope

Siegel as a police agent to both Margarida Wortmann (Vol. XXIV, TR

1951-1952) and Edjanira Viana (Vol. XXIV, TR 1979) -- was

significant because according to Siegel she and Trease argued

outside the establishment, Trease complaining that she had "messed

things up", that the two Brazilian women had money (Vol. XIII, TR

1649-1651). This testimony found support in the Viana testimony

that she was wearing five or six rings and that she wrote her phone

number on a piece of paper when Trease requested it (Vol. XXIV, TR

1972-1977) after Wortmann corrected her friend’s representation

that she was too poor to have a phone (Vol. XXIV, TR 1974) by

telling Trease that Viana was "a very rich woman" (Vol. XXV, TR

2195-2196). Appellant’s minor lies about his police employment

were relevant to the specific larcenous intent he had on the night

of the Edenson burglary-robbery-homicide and his use of Siegel to

investigate the victim’s premises, and tended to negate the defense

hypothesis that Siegel killed Edenson because of jealousy.

Appellant complains that witness Colson testified about

Trease’s demonstrated proficiency with a knife (Vol. XXVII, TR.

2440-2445) and that witness Berousek corroborated the Hope Siegel

testimony by Berousek (Vol. XXVII, TR. 2451), and thus it is

procedurally barred. Hazen v. State, 700 So.2d 1207 (Fla. 1997).

the evidence is admissible under F.S. 90.402. See Tumulty v.

State, 489 So.2d 150, 153 (Fla. 4DCA 1986).

87

testimony that Trease practiced martial arts (Vol. XXVII, TR.

(Fla. 1988), ruled that knowledge of knives and the martial arts

was not Williams-rule similar fact evidence (Vol. XXVII, TR 2424-

2437). The defense acknowledged that martial arts testimony was

"relevant to show that he knew how to do those things" (Vol. XXVII,

TR. 2430-2431).

The testimony relating to appellant’s familiarity, proficiency

and skill with the martial arts and knives was relevant and

Pittman v. State, 646 So.2d 167, 170 (Fla. 1994)(approving the

admission of evidence that defendant once made a gas bomb because

relevant to the murder-arson charges being prosecuted).

Appellant also complains that the prosecutor improperly

demonstrated that Trease was lying when he claimed that he was

taking the medication Vicodin and Valium for a heart condition.

First of all, it was proper for Detectives Robinson and Wildtraut

to testify about this (Vol. XXVII, TR. 2488-2489, TR 2513, 2519)

and for the state to have Dr. Sprehe testify to the purpose and

prosecutor’s efforts to show that on occasion Trease told lies also

extends to Trease’s comments to Sarasota Detectives Robinson and

Wildtraut that Hope Siegel did not commit the Edenson homicide and

that he might have to take the fall (Vol. XXVII, TR. 2519-2521).

88

effects of such medication (Vol. XXVII, TR. 2537-2541) since that

testimony was relevant to show not only that Trease did not have

the asserted heart condition, but also that Trease’s claim during

questioning after consent to Miranda warnings that the medications

were affecting his memory of events about the homicide was

untruthful since Dr. Sprehe explained they would have had a

negligible affect on the ability to remember events of the past

seven to ten days (Vol. XXVII, TR. 2540). While appellant may have

a right to decline to talk to police and assert his Fifth Amendment

privilege, he has no concomitant right to speak to the police and

provide lies to obstruct an investigation. See, e.g., Brogan v.

United States, 522 U.S. ___, 139 L.Ed.2d 830 (1998). Having chosen

to answer -- and to answer falsely thus betraying guilty knowledge

-- the prosecutor could prove that fact, much as he could by

calling a witness to refute an alibi urged by the defendant. That

other witnesses may have also testified that Trease repeated the

same or similar lie to them on other occasions is merely

The record reflects that on cross-examination of Berousek the

defense asked if she had met Hope Siegel and the witness answered

visited Berousek’s office but was not asked if she was under the

influence of drugs or alcohol at the time (Vol. XXIII, TR. 1753).

89

that in April Siegel visited her employment and attempted to

discuss her relationship with Trease (Vol. XXVII, TR. 2453). At a

bench conference requested by the defense, the defense indicated

not being comfortable asking the question whether Siegel appeared

to be under the influence of drugs or alcohol (Vol. XXVII, TR.

2454). Berousek then testified Siegel appeared to be upset and

angry that night (Vol. XXVII, TR. 2455). Afterwards, outside the

jury’s presence, Berousek on a proffer stated that Siegel appeared

to be under the influence of drugs or alcohol when she visited

Berousek’s place of employment because she talked fast and didn’t

make any sense (Vol. XXVII, TR. 2462-2463). The defense did not

With respect to the American gigolo comment, on direct

examination of Trooper Terek the court sustained a defense

objection to a question about how Trease had described his

relationship with other women; the prosecutor unsuccessfully argued

that the state’s theory was that Trease was controlling Hope Siegel

(Vol. XXV, TR. 2118-2119). When the prosecutor asked Agent Sykes

if appellant had referred to himself as a great American gigolo,

the court sustained the defense objection and instructed the jury

to disregard the question and answer (Vol. XXV, TR. 2135-2136).

The prosecutor agreed not to bring it up again when the defense

90

made an oral motion in limine (Vol. XXV, TR. 2137). There was no

mistrial request.

Almost all evidence to be introduced by the state in a

criminal prosecution will be prejudicial to a defendant. Only

where the unfair prejudice substantially outweighs the probative

value of the evidence should it be excluded. Amoros v. State, 531

So.2d 1256, 1259 (Fla. 1988); Wuornos v. State, 644 So.2d 1000,

1007 (Fla. 1994). In the instant case appellant has failed to

demonstrate an abuse of discretion in the lower court’s admission

of evidence.

No reversible error appears.

91

The trial court’s sentencing findings recite among the nonstatutory

mitigators:

a. That defendant has adjusted well to

incarceration and has conducted himself in an

appropriate manner while in jail awaiting

trial in this case. He assisted in the

prevention of a fellow inmate’s suicide. I

find this factor to have been established to

exist by the greater weight of the evidence;

however, I give it little or no weight.

(Vol XII, R 2237)

Even the defense acknowledged in its argument to the jury that

the incident wherein Trease yelled to jailers about another

inmate’s suicide attempt was "not the greatest mitigation in the

world" (Vol. XXXI, TR 3043) and appellee notes that there was

testimony that other inmates as well as Trease who alerted guards

to the inmate’s attempted suicide (Vol. XXX, R 2925).

The trial court adequately complied with the requirements of

Campbell v. State, 571 So.2d 415 (Fla. 1990) by giving minimal

weight to this non-statutory mitigating factor. See Gudinas v.

State, 693 So.2d 953, 966 and fn 16 (Fla. 1997); Sims v. State, 681

So.2d 1112, 1119 (Fla. 1996)(finding that Campbell had been

satisfied by the trial court’s according "little or no weight" to

the proffered mitigators).

92

Even if there were error it would be harmless in light of the

substantial aggravation found in comparison to the weak nonstatutory

mitigation presented. See, e.g., Thomas v. State, 693

So.2d 951 (Fla. 1997).

93

The trial court in its sentencing findings determined:

3. The capital felony was

committed for the purpose of

avoiding or preventing a lawful

arrest or effecting an escape

from custody.

Defendant and the victim knew one

another. They had engaged in a business

relationship immediately prior to the killing.

The defendant, at the time of the crimes, was

not concealed and made no attempt to conceal

his identity from the victim. Defendant told

his accomplice, HOPE SIEGEL, that he killed

the victim in order to prevent his

identification and because the victim had torn

defendant’s shirt.

The existence of this aggravating

circumstance was established beyond a

reasonable doubt. Furthermore, the evidence

established that the dominant motive for the

killing was the avoidance or prevention of

arrest.

(Vol. XII, R 2236)

Appellant complains that the trial court erroneously found the

presence of this aggravator because under Preston v. State, 607

So.2d 404 (Fla. 1992) the sole or dominant motive for the murder

was not the elimination of a witness; appellant argues that the

homicide may have resulted from rage following the victim’s having

torn appellant’s shirt.

Appellant’s accomplice who was present during the murder Hope

Siegel testified:

94

Q. Miss Siegel, did he ever on the way

up north to Pennsylvania ever tell you why he

had killed Paul Edenson?

A. He told me -- he told me it was

because he could identify us and -- and, um,

um, um -- he said he tore his shirt.

(Vol. XXIII, TR 1734)

Additionally the state elicited testimony through mechanic

Ismail Elginer who worked for victim Paul Edenson at Bayview

Motorcars that appellant Trease had previously -- in February --

brought a Mercedes-Benz in and had been by everyday for a week at

that time. Trease and his girlfriend would be sitting with Paul’s

desk in the showroom (Vol. XXIV, TR 1937-1940). This Court has

held that the witness elimination aggravating factor may be shown

by circumstantial evidence from which the motive may be inferred

without direct evidence of the offender’s thought processes.

Preston v. State, 607 So.2d 404, 409 (Fla. 1992); Swafford v.

State, 533 So.2d 270, 276 n 6 (Fla. 1988); Hall v. State, 614 So.2d

473, 477 (Fla. 1993). Here, in addition to the circumstantial

evidence of Elginer’s testimony that Trease had been a previous

Edenson customer, the record provides direct evidence of

appellant’s admission to Siegel regarding his concern for the

State, 492 So.2d 1317, 1319 (Fla. 1986); Bottoson v. State, 443

So.2d 962, 966 (Fla. 1983); Herring v. State, 446 So.2d 1049 (Fla.

1984). See also Harmon v. State, 527 So.2d 182, 188 (Fla. 1988)

(victim knew the defendant and would easily have identified him in

95

the robbery); Derrick v. State, 641 So.2d 378, 380 (Fla.

1994)(where defendant’s goal was to steal the victim’s money, avoid

arrest aggravator properly found since victim knew defendant from

previous encounters, the victim recognized the defendant during the

attack and defendant admitted the stabbing to shut up the victim).

Appellee additionally notes that Trease had three prior robbery

convictions, leading to imprisonment where he had not utilized

deadly force. Appellant’s hypothesis that the insignificant factor

of having his shirt ripped may have fueled an irrational homicidal

rage need not be accepted, especially in light of appellant’s

assertion at sentencing that he was innocent and that Trease

believed this had been a "hit" (Vol. XXXI, TR 3084-3085). It is

absurd to believe that after the shirt-tearing initial assault

Trease repeatedly threatened the victim with death unless he turned

over the sought-for safe and then proceeded to slice his throat

(after a gunshot to the head) with a dominant motive to avenge the

torn shirt. See also Howell v. State, ___ So.2d ___, 23 Florida

Law Weekly S90 (Fla. 1998)(that defendant may have had other

motives for murdering victim does not preclude witness elimination

as a dominant motive).

96

Based on the foregoing arguments and authorities, the judgment

and sentence should be affirmed.

Respectfully submitted,

Assistant Attorney General

Florida Bar I.D. No.: 0134101

2002 N. Lois Avenue, Suite 700

Tampa, Florida 33607

(813) 873-4739

has been furnished by U.S. Regular Mail to Andrea Norgard,

Assistant Public Defender, Public Defender’s Office, Post Office

Box 9000 -- Drawer PD, Bartow, Florida 33831, this _____ day of

April, 1998.