IN THE SUPREME COURT OF FLORIDA

ROBERT TREASE,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

:

:

: Case No.

:

:

89,961

:

APPEAL FROM THE CIRCUIT COURT

IN AND FOR SARASOTA COUNTY

STATE OF FLORIDA

REPLY BRIEF OF APPELLANT

JAMES MARION MOORMAN

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

ANDREA NORGARD

Assistant Public Defender

FLORIDA BAR NUMBER O661O66

Public Defender's Office

Polk County Courthouse

P. O. Box 9000--Drawer PD

Bartow, FL 33831

2

(941) 534-4200

ATTORNEYS FOR APPELLANT

i

TOPICAL INDEX TO BRIEF

PAGE NO.

PRELIMINARY STATEMENT 1

ARGUMENT 1

ISSUE II

WHETHER THE TRIAL COURT ERRED IN

REFUSING TO APPOINT DIFFERENT COUNSEL

(AS STATED BY THE APPELLEE). 1

ISSUE III

WHETHER THE TRIAL COURT ERRED IN THE

ADMISSION OF THE TESTIMONY AND

PRIOR CONSISTENT STATEMENTS OF THE

CO-DEFENDANT HOPE SEIGEL (AS STATED

BY THE APPELLEE). 4

ISSUE IV

WHETHER THE TRIAL COURT ERRED REVERSIBLY

IN ADMITTING EVIDENCE OF

ALLEGEDLY BAD ACTS OF TREASE 12

CONCLUSION 18

CERTIFICATE OF SERVICE 19

ii

TABLE OF CITATIONS

CASES PAGE NO.

Bohannon v. State,

546 So. 2d 1081, rev. denied, 557 So. 2d 35 (Fla. 1990) 5

Chandler v. State,

702 So. 2d 186 (Fla. 1997) 10

Cuyler v. State,

446 U. S. 335 (1980) 3

Ferrell v. State,

686 So. 2d 1324 (Fla. 1986) 14

Finney v. State,

660 So. 2d 674 (Fla. 1995) 17

Foster v. State,

679 So. 2d 747 (Fla. 1996) 15

Green v. State,

688 So. 2d 301 (Fla. 1996) 8

Hoefert v. State,

617 So. 2d 1046 (Fla. 1993) 16

Holloway v. Arkansas,

435 U. S. 475 (1978) 2

Lightbourne v. State,

829 F. 2d 1012 (11th Cir. 1987) 3

Malloy v. State,

382 So. 2d 1190 (Fla. 1979) 12-14

Oliver v. Wainwright,

782 F. 2d 1521, cert. denied, __ U. S. __, 107 S. Ct. 313, 93 L.

Ed. 2d 287 (1986) 3

Richardson v. State,

561 So. 2d 18 (Fla. 5DCA 1990) 8

Shellito v. State,

701 So. 2d 837 (Fla. 1997) 10, 11

Swafford v. State,

TABLE OF CITATIONS (continued)

iii

533 So. 2d 270 (Fla. 1988) 12-14

TABLE OF CITATIONS (continued)

iv

Tullis v. State,

556 So. 2d 1165 (Fla. 3rd DCA 1990) 8

Wenzel v. State,

459 So. 2d 1086 (Fla. 2nd DCA 1984) 5

Williams v. State,

617 So. 2d 398 (Fla. 3rd DCA 1993) 8, 13, 14

Williams v. State,

622 So. 2d 456 (Fla. 1993) 16

1

PRELIMINARY STATEMENT

Petitioner will be responding to Issues II, III, and IV as set

forth in the Initial Brief and Answer Brief. Petitioner will rely

upon the arguments and citations of authority as presented in the

Initial Brief for Issues I,V, and VI.

ARGUMENT

ISSUE II

WHETHER THE TRIAL COURT ERRED IN

REFUSING TO APPOINT DIFFERENT COUNSEL

(AS STATED BY THE APPELLEE).

Appellant argued in his Initial Brief that his court-appointed

attorney, Fred Mercurio, should have been relieved of his representation

of Appellant by the trial court and that it was reversible

error for the trial court to fail to take this action when requested

to do so by both Appellant and counsel. As the state concedes,

the relationship between counsel and Appellant was not the best, to

say the least. As both Briefs have extensively chronicled, (State's

Brief at p.49-61; Appellant's Initial Brief at p.33-41) the

attorney-client relationship was severely strained. The significant

difference of opinion that remains is whether or not the

deterioration reached the point where it was impossible for counsel

to render effective assistance of counsel to Appellant.

The State argues that by virtue of the fact that a trial

occurred that counsel was able to present an effective defense.

2

(State's Brief, at p. 62) Appellant disagrees. Appellant would

suggest that an effective defense would have resulted in a different

outcome at trial than a guilty verdict and a death recommendation

of 11-1. Appellant does not agree with the State's assertion

that defense counsel's cross-examination of key witnesses was capable

or that the witnesses presented by the defense, especially in

penalty phase, would not have been more effective had there been an

adequate attorney-client relationship established between Appellant

and counsel.

Defense counsel was largely responsible for creating the

actual conflict of interest that arose between Appellant and himself

when he chose to make ill-advised comments within the hearing

of a jail guard, James Clay. Counsel's statements in Clay's hearing

that he did not believe that many of his client's were innocent,

and in fact, felt most were guilty coupled with his earlier

responses to Appellant that he might work harder on a case if he

had evidence that his client was 100% innocent certainly were not

caused by or the fault of Appellant. Many of Appellant's concerns

were related to his belief that counsel was not working hard enough

for him.

Appellant, as is every defendant, is unquestionably entitled

to conflict-free counsel. Holloway v. Arkansas, 435 U. S. 475

(1978). Appellant asserted he had a conflict with counsel and

counsel, in his written motion seeking withdrawal, asserted a conflict

as well. The right to conflict-free counsel is among those

3

constitutional rights so basic to a fair trial that any infraction

regarding it cannot be treated as harmless error. Holloway.

In Cuyler v. State, 446 U. S. 335, 349 (1980), the United

States Supreme Court held that the Sixth Amendment right to effective

assistance of counsel encompasses the right to representation

free from actual conflict. Whether or not conflict exists is a

mixed question of law and fact. When a defendant can demonstrate

actual conflict, he must also show that the conflict had an adverse

effect on his lawyer's representation. Once conflict and adverse

effect are shown by the defendant, prejudice is presumed. See

also, Lightbourne v. State, 829 F. 2d 1012 (11th Cir. 1987);

Oliver v. Wainwright, 782 F. 2d 1521, cert. denied, __ U. S. __,

107 S. Ct. 313, 93 L. Ed. 2d 287 (1986).

The record demonstrates, as argued above and in the Initial

Brief, that the disintegration of the lawyer-client relationship

caused an actual conflict of interest to develop and, according to

defense counsel's Motion to Withdraw, led to an inability on

counsel's part to provide effective assistance of counsel. While

Appellant has never claimed he was not responsible for part of the

problems, it is equally clear that defense counsel was independently

and solely responsible for large portions of the problem as

well, namely his ill-advised conversation in the jail elevator.

The record also demonstrates that the resulting lack of any

attorney-client relationship led to an adverse effect in the trial.

4

Counsel and Appellant did not work well together, in fact, Appellant

refused to be present during penalty phase.

Appellant, is thus presumed to be prejudiced by counsel's

continued representation of him. His Sixth and Fourteenth Amendment

rights to counsel under the United States Constitution were

violated. Appellant should be granted a new trial with different

counsel.

ISSUE III

WHETHER THE TRIAL COURT ERRED IN THE

ADMISSION OF THE TESTIMONY AND

PRIOR CONSISTENT STATEMENTS OF THE

CO-DEFENDANT HOPE SEIGEL (AS STATED

BY THE APPELLEE).

The State's main contention with regard to this issue is that

defense counsel, through various incidents, failed to preserve

these claims for appellate review. Appellant disagrees with this

assertion and maintains that the record is adequately preserved.

The State's first claim is that because the issue of Seigel's

background was brought to the trial court's attention by the State

when they filed a Motion in Limine to exclude testimony about

Seigel and to limit defense counsel's inquiry into the areas referred

to in the motion that Appellant is somehow barred from arguing

the correctness of the rulings of the trial court with regard to

that motion. The State's argument seems to be that because defense

counsel didn't bring up the issue first, he must not have wanted to

delve into the areas outlined in the motion and therefore, waived

5

his right to argue the correctness of the rulings of the trial

court on them in the direct appeal. The State cites no case law

for this proposition and Appellant has been unable to unearth any

law which penalizes defense counsel or holds that a waiver occurs

when the State is the first on the draw and files a motion to limit

what it anticipates the defense will do with one of their witnesses.

Obviously, such a rule of law would make no sense and would

unfairly and unconstitutionally permit the State to thwart any

appellate review on evidentiary matters if they could beat defense

counsel to the courthouse door by filing limiting motions.

Further, once the issue was brought to the court's attention

and hearings held on it, it would serve no purpose for the defense

to file motions arguing the alternative. The main key to whether

an issue is preserved for appeal whether or not the objections are

sufficiently specific so as to apprise the trial judge of the error

and to preserve the record for intelligent review on appeal.

Bohannon v. State, 546 So. 2d 1081, rev. denied, 557 So. 2d 35

(Fla. 1990); Wenzel v. State, 459 So. 2d 1086 (Fla. 2nd DCA 1984).

At the hearing on the motion, the record is perfectly clear as to

the basis for defense counsel's objections to the trial court's

limiting ruling. The trial court was aware of the basis for

defense counsel's objections. The written order presented by the

court to defense counsel during the trial made it clear that the

court was continuing to make the same rulings. There is no question

as to what issues are being brought before this Court for

6

review and the record provides sufficient basis for this Court to

conduct an intelligent review of the matter.

The State next claims waiver occurred on December 2, 1996,

during trial, when the trial court provided defense counsel for the

first time with a written order which spelled out the trial

court's prior oral ruling with regard to the Motion in Limine.

Counsel did advise the court that he had no objection to the order.

(Vol. XXII, TR1415) The State contends that this constitutes

waiver of any claim. Appellant, however, disagrees. The record

does not reflect that defense counsel acquiesced to the correctness

of the ruling, merely that he agreed that the written order

accurately reflected what the judge had previously

ruled.(Vol.XXII,T1416-1419) Agreeing that the written order was an

accurate reflection of a prior verbal ruling is not and should not

be interpreted as agreeing as to the correctness of the legal basis

for that ruling. Thus, factually this situation differs from those

cases cited by the State which set forth the standard for procedural

bar which arise when a lawyer acquiesces to the ruling of a

trial court. (State's Brief, at p. 67-68)

At the hearing on the Motion in Limine held on November 22,

1996, defense counsel certainly did not agree with the State's

position or the ruling of the trial court. (Vol.XIV,T260-266)

Defense counsel specifically argued to the court that he be allowed

to delve into Seigel's background, specifically points 1,2, and 3

of the motion because they went to her credibility and her ability

7

to accurately remember events. (Vol.XIV,T261;265-266) Thus, contrary

to the State's assertion that the argument advanced in the

Initial Brief is strictly the creation of Appellate counsel, trial

counsel also argued to the trial court that this information about

Seigel was critical to the defense.

The State next claims that Appellant's brief fails to mention

that Seigel put an ad in the paper advertising an escort service

under the name of " Luscious Lucinda". This is not correct. The

Initial Brief on page 45 specifically references the "Luscious

Lucinda" episode. Seigel claimed that Appellant wanted her to do

this, yet the record also reflects that Seigel went alone to place

the ad, that Trease did not force her to do it, that she was not

opposed to doing this type of work or to placing the ad, and that

prior to even meeting Trease, Seigel had advertised her willingness

to perform the same type of services under the name "Dancing

Beauty". The State, however, fails to mention these additional

facts in their claim that Appellant counsel omitted facts surrounding

this act of Seigel's from the brief.

The State further contends that trial counsel specifically

acquiesced to the trial court's ruling regarding the admissibility

of Seigel's prior drug use at the time of the incident. Again, the

record does not reflect acquiescence as to correctness of the

application of the law, but rather only as to counsel understanding

what the trial court had ruled and agreeing to abide by that

ruling, even if incorrect. The trial court, as argued in the

8

Initial Brief, misapplied the Edwards standard. When faced with

the trial court's ruling against him, defense counsel acknowledged

that he would abide by the ruling. (Vol.XIV,TR267-268) The record

no way reflects that defense counsel agreed with the court as to

the court's application of the law. Thus, the issue is properly

before this Court for review.

Appellant continues to hold the position that the trial court

incorrectly applied the Edwards standard. The cases relied upon by

the Appellee in the Answer Brief to support the ruling of the

trial court are factually distinguishable from the instant case.

For example; in Green v. State, 688 So. 2d 301 (Fla. 1996), the

opinion relates that the witness in question had been an alcoholic

three years before the incident and denied having had a drink on

the date of the crime. There was no evidence to contradict this

assertion, and therefore, this Court held that there was no basis

for the introduction of the witness' prior drinking problems under

Edwards. Likewise, in Tullis v. State, 556 So. 2d 1165 (Fla. 3rd

DCA 1990), the defense was not allowed to question the witness

concerning delusions that he had experienced where there was no

evidence that the delusions had affected the witnesses ability to

observe, remember, recount, or recall the jailhouse conversations

that he had had with the defendant. The opinion states that these

delusions were not occurring at the time of the conversation

between the witness and defendant, in fact they did not begin until

six months after the conversation and the last one had occurred a

9

year and a half before the trial. In both Richardson v. State, 561

So. 2d 18 (Fla. 5DCA 1990) and Williams v. State, 617 So. 2d 398

(Fla. 3rd DCA 1993), there was no evidence that the witnesses had

used drugs on the day of the crime or in close connection to that

day and no evidence that the drug use had affected the minds of the

witnesses.

These factual situations are significantly different from that

presented in this case. In this case Seigel admitted that she was

using drugs continuously and regularly at the time of the homicide.

She admitted that smoking marijuana made her "stupid", clearly

leaving the implication that cocaine would do no less since is

generally considered to be a far more serious drug. Seigel admitted

to significant memory problems and on the witness stand often

claimed to not remember things that had occurred during the time

immediately preceding and after the homicide. Thus, the cases

cited by the State are not a basis upon which the ruling of the

trial court can be supported. Appellant submits, that under the

Edwards standard, Seigel's drug usage was admissible and the trial

court's ruling was incorrect.

B. The prior consistent statement

Appellant, in the Initial Brief, argued that the admission of

Seigel's statement to police which led to her and Appellant's

arrest should not have been admitted because it did not meet the

evidentiary requirements for admission and because defense counsel

10

had not made claims of recent fabrication. The State contends that

defense counsel did open the door to admission by levying the

accusation of recent fabrication. (State's Brief, at p. 78)

Defense counsel, in arguing against the admission, very specifically

told the court that it was his position that Seigel had

known all along what her exposure was if she was charged with the

murder and that she had lied about her involvement in the homicide

from the beginning, not just after she was formally charged or in

her trial testimony. (Vol..23, TR1869) All of the reasons cited

by the State on pages 78-79 of the Brief which were argued by

defense counsel as reasons that Seigel would lie do nothing to

undercut counsel's initial claim -- Seigel lied from the beginning

to try to avoid arrest and to try to escape the death penalty.

Appellant submits that choosing to claim that a witness has been

a consistent liar and must continue to do so in order to achieve

her goal of a lesser sentence does not "open" the door to allowing

her prior consistent lies to be admitted into evidence.

The State also cites to F.S. 90.801 (2)(b) and Chandler v.

State, 702 So. 2d 186 (Fla. 1997), in part for the proposition that

a statement is not hearsay if the declarant testifies at trial and

is subject to cross-examination concerning the statement. While

Seigel did testify at trial, the chronology of the witnesses did

not render her subject to cross-examination regarding this statement

made in Pennsylvania. The statement was admitted in the

State's case through a witness other than Seigel after Seigel had

11

testified and after she had been released from the stand. The

State did not question Seigel about the statement in Pennsylvania,

therefore, the defense, who obviously wanted to exclude the statement,

would certainly not open the door to admission by engaging in

discussion about it on cross-examination.

The record also reflects that the State initially brought to

to the jury's attention the plea agreement and benefits from it

that Seigel would enjoy. The defense did not delve into this area

first.

The State extensively quotes the case of Shellito v. State,

701 So. 2d 837 (Fla. 1997), in support of their position that the

statement was admissible to rebut a charge of recent fabrication.

However, the facts in Shellito present a clear claim of recent

fabrication, unlike the facts presented in this case. In Shellito

the witness, Bays, testified that the defendant had told him that

he had shot someone. Bays testified that after his arrest 20 hours

after the homicide on a robbery charge, he told the police what

Shellito said. Bays admitted during cross-examination that he was

concerned about the charges against him when he made the statement,

that he kept evidence about his case under the mattress in his jail

cell, and that he had read newspaper accounts of the murder Shellito

was charged with while he was in jail. This Court pointed

out that the questioning of Bays on cross brought out information

which made it appear that Bays had obtained details about the crime

from the media and police reports which were not written until

12

after Bays had given the statement. Thus, the calling of the police

officer who took the statement from Bays before he would have had

access to media and police reports was admissible to rebut the

inference that Bays had made this up recently.

In this case there are no facts which support the claim that

defense counsel believed that Seigel had recently fabricated her

trial testimony such as were present in Shellito. At no time did

counsel imply that Seigel had obtained confidential information or

had access to anything after the fact. Defense counsel maintained

that Seigel was, from the beginning, a liar, who was very aware of

the potential penalties she face before her arrest and was willing

to say anything from the beginning which would lessen her exposure.

The admission of the prior consistent statement through the police

officer was error in this case.

The restriction of Appellant's ability to present his defense

and adequately confront the witnesses against him deprived Appellant

of his rights to due process, a fair trial, and the confrontation

of witnesses under the state and federal constitutions. Appellant

is entitled to a new trial.

ISSUE IV

WHETHER THE TRIAL COURT ERRED REVERSIBLY

IN ADMITTING EVIDENCE OF

ALLEGEDLY BAD ACTS OF TREASE

( AS STATED BY THE APPELLEE).

13

(1) The Tomilson-Bersousek Testimony of Trease's requests for

Information Targeting People Who Had Safes Or Money:

The State first appears to claim that this evidence was admissible

even though there were no completed acts, relying on the

cases of Malloy v. State, 382 So. 2d 1190, 1192 (Fla. 1979) and

Swafford v. State, 533 So. 2d 270 (Fla. 1988). Appellant submits

that both of these cases are distinguishable from the instant case,

and therefore, are without persuasive authority to support the

admission of the evidence of Appellant's conversations.

In Malloy the defendant was charged with the murder of two

individuals as part of a robbery after an evening of drug use.

The State was allowed to admit into evidence that earlier in the

evening, Malloy had been an at lounge and two people were arguing

in the parking lot. Malloy told the people to "shut up" and then

got out of his car and began to remove a rifle. The incident at

the lounge was ruled admissible as "one incident in a chain of

chronological events which began at the termination of the party at

the Surrett's and 12:30 a.m. and concluded with the delivery of the

victim's property to the appellant's bedroom at 5:30 a.m. back at

the Surrett premises. In addition, the circumstances of the lounge

incident do not establish all the elements of a crime and, consequently,

the question of the admissibility of the prior criminal

acts is not present." Malloy, at 1192.

Malloy supports Appellant's assertion that the conversations

are not admissible as these conversations do not contain all the

14

elements of a crime. Thus, they are inadmissible under Williams

rule under the Malloy opinion. Nor do the conversations in the

instant case fall within the admissibility test used in Malloy as

they are not part of the chronology of the murder. The conversations

here occurred with Berousek some five months before the

homicide.

In Swafford the defendant was charged with killing a young

woman he had abducted from a FINA gas station in Daytona Beach.

The woman had been shot nine times, with two shots to the head.

The State was permitted to admit evidence that two months after the

murder, the defendant and an Ernest Johnson were out, at the defendant's

urging, to find a girl and abduct her so they could do anything

they wanted with her. Swafford said not to worry about being

caught, because after they were done, he would shoot her twice in

the head so there would be no witnesses. At this point Johnson

asked if that bothered Swafford, who replied that you got used to

it. Johnson and Swafford then went to a parking lot and Swafford

selected a victim. As Swafford approached the victim's car and

drew his gun, Johnson demanded to be taken back to his vehicle and

refused to continue in the plan to abduct and kill a second young

woman. Thus, the testimony of Johnson relating to the Williams

rule event established that Swafford did much more than talk about

what they might do -- a plan was set into motion by Swafford. This

Court noted that the Johnson testimony was not admitted to establish

that Swafford had committed a separate crime so similar to the

15

charged crime so that it pointed with logical relevancy to Swafford

as the perpetrator because it did not refer to a crime that had

been committed. Rather, the statement was admissible as an admission

of a party-opponent, which was relevant evidence which tended

to prove or disprove a material fact in issue. The opinion specifically

notes that the two incidents were not sufficiently similar

to be admissible under the modus operandi theory of admissibility.

Appellant submits that neither Malloy nor Swafford stand for

the proposition that a defendant's conversation alone about committing

a crime render it admissible under Williams rule. Neither,

under Swafford, do the conversations with Bersousek and Tomilson

have sufficient similarity to the homicide to establish a modus

operandi as the State asserts on page 85 of their Brief. There is

nothing unique about seeking to burglarize people whom you believe

may have something worth stealing.

The remaining cases cited by the State, apparently in support

of the modus operandi theory of admissibility on pages 85-86 of the

Brief also do not support admissibility in this case. In Ferrell

v. State, 686 So. 2d 1324 (Fla. 1986), the victim of the homicide

had been robbed two days earlier by the defendant. The basis for

admissibility was not modus operandi, but rather that the testimony

of the earlier robbery was inseparable from the crime charged and

admissible under Sec. 90.402 as necessary to adequately describe

the instant offense. It completed the story of the crime for which

the defendant was on trial.

16

Again in Foster v. State, 679 So. 2d 747 (Fla. 1996), the testimony

concerning another robbery which had occurred earlier that

same day was admitted in the homicide case as inseparable crime

evidence. The gun used in the homicide had been used in the

earlier robbery, the truck used in the homicide had been obtained

in the earlier robbery. This Court held that the testimony concerning

the other crime was necessary to establish the entire

context in which the crime arose and was necessary in order to

present a complete picture of the criminal episode the defendant

was on trial for.

While neither of these cases have anything to do with modus

operandi as a basis for admissibility, it is abundantly clear that

the testimony of Tomilson and Bersousek was not admissible as

inseparable crime evidence. The State, at the trial level, never

advanced this theory of admissibility to the trial court. Again,

these cases are also distinguishable because the testimony was

about completed crimes, not just conversation about possibly

committing a crime.

The remaining cases did use modus operandi as the basis for

admissibility, however, an examination of the facts of each case

reflects that the testimony in this case does not meet the standard

of similarity necessary for admissibility under case law. For

example, in Hoefert v. State, 617 So. 2d 1046 (Fla. 1993), the

victim died as a result of being choked to death and there was

evidence consistent with her having had sexual activity. Three

17

other women were called to testify that the defendant had enjoyed

choking them while having sex with them and that he obtained sexual

gratification from the choking. Two of these women had been choked

until they passed out. The evidence of these other chokings was

admissible because it was strikingly similar and the defendant had

placed into issue the motive because of the lack of trauma to the

victim's body. Identity was also an issue.

In Williams v. State, 622 So. 2d 456 (Fla. 1993), the murder

victims had ripped the defendant off in his drug business. The

evidence admitted was that four months earlier the defendant had

sent a hit man off to kill two other former employees who had left

his employ to start their own drug business. The modus operandi

the State sought to establish was that whenever anyone crossed the

defendant in his drug trafficking ring, hie wound have them killed.

This Court approved the admission of the other crime evidence given

the special circumstances of the facts of the case.

The testimony of Bersousek and Tomilson in this case does not

establish a modus operandi. It was general conversation about

targeting potential burglary victims. There was no conversation

about who, what, where, when, and certainly no conversations about

the possibility of murdering the victims.

The final case cited, that of Finney v. State, 660 So. 2d 674

(Fla. 1995), did not deal with the admissibility of evidence in the

guilt phase, but instead focused on the use of other crime evidence

to support the aggravating factor of pecuniary gain, which the

18

defendant disputed. This Court ruled the evidence of the other

crime was not sufficiently similar to warrant admission as the victim

in the other crime was not murdered, but found harmless error

because there was other evidence to support the finding of the

aggravator.

In this case the admission of the testimony solely to buttress

the credibility of Seigel is not of sufficient probative value to

overcome the tremendous prejudicial impact of the testimony. Given

the limitations imposed on the defense's ability to impeach Seigel

as argued in Issue II, the admission of this testimony to buttress

Seigel only served to heighten the cumulative unfairness of the

trial. Appellant is entitled to a new trial free from such taint.

Appellant will rely upon the Initial Brief and the arguments

contained therein concerning the admissibility of the testimony

concerning his truthfulness, his knowledge of martial arts, and his

earlier possession of handmade knives.

CONCLUSION

Based upon the arguments and citations of authority recited

herein and in the Initial Brief, Appellant respectfully requests

this Honorable Court to reverse this cause for a new trial.

19

CERTIFICATE OF SERVICE

I certify that a copy has been mailed to Robert J. Landry,

Suite 700, 2002 N. Lois Ave., Tampa, FL 33607, (813) 873-4739, on

this day of October, 1998.

Respectfully submitted,

JAMES MARION MOORMAN ANDREA NORGARD

Public Defender Assistant Public Defender

Tenth Judicial Circuit Florida Bar Number O661O66

(941) 534-4200 P. O. Box 9000 - Drawer PD

Bartow, FL 33831

AN/ddv