The day before I visited James Duckett in prison, I received this comment on my website. I chose not to publish it but instead I informed Beth Wells, James Duckett's attorney. I sent all the info to her.
In one of the followup emails from Brandie to me:
Beth Wells was able to contact her. And this past year Brandie was charged with felony child neglect. This seems par for the course as anytime anyone speaks up for James, bad things happen, especially since Brandie commented about protecting her children is most important to her.
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. YEAR 2003
James Aren Duckett v. State of Florida
CHIEF JUSTICE: GOOD MORNING EVERYONE. GOOD MORNING. WELCOME TO THE FLORIDA SUPREME COURT. WE APPRECIATE COUNSEL BEING READY TO GO ON THE FIRST CASE. WITHOUT ANY FURTHER ADO, WE WILL CALL THAT CASE IN DUCKETT VERSUS STATE. IF COUNSEL IS READY TO PROCEED, YOU MAY PROCEED.
This is a current picture of Gwen Gurley now incarcerated at the Lowell Prison in Ocala, Florida.
MAY IT PLEASE THE COURT. THE ONLY WITNESS WHO PUTS JAMES DUCKETT WITH THE VICTIM IN THIS CASE, THERESA McABEE, AFTER MR. DUCKETT IS SEEN DRIVING BY HIMSELF ON HIGHWAY 50, IS GWEN GURLEY. THE TRIAL COUNSEL DIDN'T DO HIS JOB AND PRESENT EVIDENCE THAT WOULD HAVE SHOWN SHE WAS LYING. THERE WAS A WEALTH OF EVIDENCE THAT COUNSEL DIDN'T PRESENT. DIDN'T MR. SALVATORE AND HIS UNCLE, MR. RUBIO, DIDN'T THEY ACTUALLY PLACE THE VICTIM IN THE VEHICLE OF THE POLICE OFFICER AND SHE GOT IN ON ONE SIDE AND THE OFFICER WAS STANDING THERE, AND YOU CAN CONCLUDE BY THAT THAT THE OFFICER WAS ABOUT TO GET INTO THE CAR, SO DO WE JUST HAVE MS GURLEY'S TESTIMONY CONCERNING THE OFFICER BEING WITH THE VICTIM?
YES, YOUR HONOR, AND THERE WERE SEVERAL STATEMENTS THAT THERESA McABEE THEN GOT OUT OF THE CAR AND HE DROVE OFF TOWARD THE POLICE STATION AND HE THEN CAME AROUND AND PICKED HER UP AGAIN,
AND THERE WERE SEVERAL WITNESSES WHO TESTIFIED AT THE TRIAL THAT HE WAS SEEN DRIVING OFF ON HIGHWAY 50, WITHOUT ANYBODY IN HIS CAR, AND ALSO THERE WAS AN ADDITIONAL WITNESS.
WHO WERE THOSE WITNESSES?
THEY WERE SHIRLEY WILLIAMS AND KIM VARGAS, AND COUNSEL SAID HE KNEW ABOUT HER AND HAD A PRETRIAL STATEMENT. SHE WAS IN CALIFORNIA AND HE DIDN'T BRING HER BACK. TRIAL COUNSEL DIDN'T PRESENT HER. SHE NOT ONLY SAYS HE DROVE OFF ON HIGHWAY 50 BUT SAYS SHE WALKED HOME FROM THE CONVENIENCE STORE, AND THE STATE NEVER SAID THAT HE TOOK THERESA McABEE FROM THE POINT SHE WAS SITTING IN HIS CAR AND HE WAS QUESTIONING HER. NO ONE TESTIFIED THAT SHE WAS IN THE CAR WHEN THE CAR LEFT THE PARKING LOT,
IN OTHER WORDS THAT SHE WAS IN THERE WITH HIM?
NO. THAT WAS NOT THE STATE'S CASE. WHAT THEY SAID WAS,
AND THEY HAD TO COME UP WITH THIS IMPLAUSIBLE THEORY BECAUSE HE WAS SEEN DRIVING OFF ALONE THAT HE THEN DROVE AROUND A LARGE AREA AND CAME AROUND AND PICKED HER UP BY THE DUMPSTER, AND THAT IS WHEN GWEN GARLEY COMES IN. SHE SAYS AT THE TRIAL I SAW THERESA McABEE. I HEARD HIS VOICE AND I TALKED TO HIM EARLIER IN THE NIGHT, SO I RECOGNIZED HIS VOICE. AND I WALKED TO THE CAR AND SAW A SMALL GUN IN THE PASSENGER SEAT.
SO THERE WAS A WITNESS, THEN, THE WITNESS YOU ARE ALLUDING TO THAT TESTIFIED THAT THE CHILD WAS WITH HIM IN THE CAR, LEAVING THE CONVENIENCE STORE PROPERTY.
YES, YOUR HONOR. I AM SORRY. I MISUNDERSTOOD YOUR QUESTION. THERE WERE SEVERAL WITNESSES WHO WERE THERE WHEN MR. DUCKETT WAS QUESTIONING THERESA McABEE ABOUT HER AGE AND CURFEW. THOSE WITNESSES,
THE TESTIMONY FROM EVERYBODY THEN WAS THAT MR. DUCKETT LEFT. SOME OF THE WITNESSES DIDN'T SEE MR. DUCKETT LEFT, MR. CARUSO, THAT JUSTICE QUINCE HAS REFERRED TO,
BUT GWEN GURLEY SAID I SAW HIM PICK HER UP, AND SHE CAME ALONG, INTERESTINGLY FIVE MONTHS LATER. SHE WAS ALLOWED TO TESTIFY BY VIDEO DEPOSITION BECAUSE SHE WAS FIVE MONTHS PREGNANT. TRIAL COUNSEL DID NOT CROSS-EXAMINATION HER. HE SENT ANOTHER ATTORNEY TO DO THAT. HE WAS NOT EVEN A PARTNER WITH TRIAL COUNSEL BUT SOMEONE WHO SHARED OFFICE SPACE WITH MR. EDMOND. .
WHAT ABOUT THE FINGERPRINTS FOUND ON THE POLICE CAR?
THERE WERE FINGER PRINTS FOUND ON THE POLICE CAR, AND AFTER THE EVIDENTIARY HEARING, THERE WAS NO RELIABLE EVIDENCE AND MR. EDMOND DROPPED THE BALL HERE, TOO. HE SAID CAN YOU TELL US WHETHER ONE FINGERPRINT IS SUPER IMPOSED? HE SAID, NO, I CAN'T TELL YOU --
(unrelated text omitted for this article)
BACK TO GWEN GURLEY, THOUGH, SHE WAS THE ONLY WITNESS THAT COULD PUT MR. DUCKETT WITH --
YOU SAID HER TESTIMONY WASN'T TRUE. WE HAVE THE RECANTATION AND DON'T WE ALSO HAVE THE TESTIMONY OF THE PROSECUTOR AND THE POLICE OFFICER WHO SAY THAT HER RECANTATION IS NOT TRUE, SO HOW ARE WE TO DEAL WITH ALL OF THESE DIFFERENT STORIES?
WELL, THERE ARE REALLY TWO ISSUES THERE. ONE IS WHETHER OR NOT THE RECANTATION IS TRUE OR NOT. WHEN SHE WAS CALLED TO TESTIFY IN THE EVIDENTIARY HEARING,
THE STATE REFUSED TO GRANT HER IMMUNITY AND WAIVE THE APPLICATION OF THE PERJURY STATUTE TO HER AND SHE TOOK THE FIFTH. I WOULD ARGUE THAT THAT MAKES HER UNAVAILABLE AS A WITNESS AND THESE RECANTATIONS SHOULD HAVE COME IN AND WHAT HAPPENED IS THE CIRCUIT COURT DID NOT CONSIDER THE RECANTATIONS. HE DID NOT ADMIT THEM INTO THE EVIDENCE BUT HE MADE A CREDIBILITY FINDING, SAYING SHE WAS NOT CREDIBLE. THERE IS NO TESTIMONY THERE TO SHOW SHE IS OR IS NOT CREDIBLE. IT IS MY POSITION THAT THE CREDIBLE FINDING IS NOT SUPPORTED BY THE RECORD.
THE OFFICERS DID TESTIFY, CORRECT?
THE OFFICERS DID TESTIFY. AND HE WAS ABLE TO WAIVE THE CREDIBILITY OF THE OFFICERS. HE DID WAIVE THE CREDIBILITY OF THE OFFICERS, YES, YOUR HONOR. SO IF ONE PERSON SAYS A AND THE OTHER PERSON SAYS NOT "A-", AND THE PERSON THAT SAYS NOT "A" TESTIFIES AND THE COURT FINDS HER CREDIBLE, AND THEY SAY NOT "A", AND THEN I AM NOT GOING TO FIND NOT "A". HE DIDN'T ALLOW ANY OF HER STATEMENTS IN, SO HE HAS GOT JUST OFFICERS' STATEMENTS IN AND OF COURSE THEY ARE CREDIBLE. THERE IS NOTHING TO COMPARE IT TO AT THIS TIME. THERE WERE STATEMENTS MADE, BUT THEY ARE NOT IN THE RECORD. ADDITIONALLY, ASIDE FROM WHETHER OR NOT HER RECANTATION IS TRUE,
THERE WAS EVIDENCE AT TRIAL THAT TRIAL COUNSEL COULD HAVE PRESENTED THAT WOULD HAVE SHOWN THE JURY THAT MISS GURLEY WAS NOT TESTIFYING TRUTHFULLY. SHE WAS WITH TWO OTHER PERSONS ON THE NIGHT IN QUESTION. VICKI DAVIS AND JESSICA HAND. THEY BOTH GAVE STATEMENTS, DIFFERENT VARIATIONS ABOUT WHETHER OR NOT WHAT MS. GURLEY SAYS HAPPENED, DID HAPPEN. BUT --
DID THEIR STATEMENTS SAY THAT THEY WERE WITH HER THAT ENTIRE TIME THAT NIGHT?
BECAUSE SHE SAYS THAT SHE CAME BACK AT SOME POINT, WITHOUT THEM, AND THAT IS WHEN SHE SAW WHAT SHE TESTIFIED TO AT TRIAL. JESSICA HAND'S STATEMENT IS JUST ALL OVER THE PLACE AND I WOULD ASK THE COURT TO READ THAT. HE SAYS I REMEMBER WE WENT DOWN TO THE CIRCLE K THAT NIGHT AND I DON'T REMEMBER SEEING A POLICE OFFICER AND I DON'T REMEMBER GETTING A QUESTION ABOUT CURFEW. WHAT GWEN GURLEY TESTIFIED TO WAS THAT SHE GOT QUESTIONED, ALONG WITH JESSICA HAND GOT QUESTIONS ABOUT THEIR AGE ANSWER HID IN THE BUSHES AND CAME BACK LATER AND THAT IS WHEN SHE SAW THERESA DUCKETT WALKING TOWARD -- THERESA WALKING TOWARD MR. DUCKETT'S CAR. VICKI DAVIS DOESN'T SAY ANYTHING ABOUT AGE IN HER STATEMENT BUT TRIAL COUNSEL NEVER INTERVIEWED THESE PEOPLE. HAD HE INTERVIEWED THEM, HE WOULD HAVE DISCOVERED THAT VICKI DAVIS SAID THAT
GWEN WANTED ME TO SAY THIS, BECAUSE SHE WANTED TO GET OUT OF JAIL IN TIME TO HAVE HER BABY, AND IF YOU LOOK AT THE STATEMENT, IT SAYS THEY NEED TO GET THE FACTS STRAIGHT, AND IF YOU LOOK AT WHAT THAT WAS, SHE SAYS
THIS IS WHAT I WAS TOLD TO SAY, IN ORDER TO GET OUT OF JAIL. SHE TURNED OFF THE TAPE DURING THAT STATEMENT: HAD THEY ASKED, SHE SAID THEY TURNED THE TAPE OFF, IN ORDER THAT THEY GET THEIR STORIES STRAIGHT.
SHE DID SAY THAT?
ON THE RECORD SHE TESTIFIED. AND SHE DOESN'T HAVE A DOG IN THIS FIGHT. SHE HAS NO INTEREST IN THIS CASE, ONE WAY OR. SHE WAS NOT QUESTIONED AT ALL. SHE WAS NOT CALLED AS A WITNESS. YOU SAID TO JUSTICE CANTERO THAT THE RECANTATION IS NOT IN EVIDENCE, THAT THE JUDGE COULD NOT CONSIDER IT BECAUSE IT WAS NOT EVIDENCE.
HOW ARE WE ARGUING IT?
WE OFFERED THE RECANTATION INTO EVIDENCE AND THE JUDGE RULED IT WAS HEARSAY AND DIDN'T ALLOW IT IN. WE HAVE ARGUED THAT SHE WAS UNAVAILABLE AS A WITNESS AND IT SHOULD HAVE COME IN. IT ACTUALLY IS IN THE PAPERWORK YOU HAVE, BUT THE JUDGE IN HIS ORDER, DID NOT RELY UPON IT AND RULED IT INADMISSIBLE IN HIS FINAL ORDER. OKAY. THE OTHER THINGS THAT VICKI DAVIS AND JESSICA TAND COULD HAVE MADE CLEAR WHEN GURLEY WAS BEING, TESTIFIED,
THEY NEVER WENT TO THE CIRCLE K AND SAW JAMES DUCKETT. NONE OF THEM. VICKI DAVIS TESTIFIED THAT GWEN NEVER LEFT HER, ALL NIGHT. THEY NEVER SAW THERESA GETTING INTO THE CAR. ADDITIONALLY, THERE WERE EIGHT OTHER PEOPLE AT THE CIRCLE K THAT NIGHT. THIS SAYS NOTHING ABOUT OFFICER SALVE CORE AND ALL OF THAT, WERE THEY QUESTIONED ABOUT MS. GURLY? ONE WAS ASKED DO YOU REMEMBER HER COMING IN THE STORE AND BUYING A COKE. THE OTHERS WERE NEVER ASKED IF THEY HAD SEEN MS. GURLEY.
OTHER PEOPLE WERE INTERVIEWED THAT NIGHT AND NONE OF THEM REMEMBERED THIS. THESE WERE STATEMENTS THAT HE HAD.
CHIEF JUSTICE: THE MARSHAL REMINDS US THAT YOU ARE IN YOUR REBUTTAL TIME. I WOULD LIKE TO SUMMARIZE THIS POINT THAT THERE WAS CROSS-EXAMINATION THAT WOULD HAVE BEEN AVAILABLE FOR GWEN GURLEY. A, SHE HADN'T LEFT THE STATE AND PROBATION RECORDS SHOW THAT SHE WAS IN THE TOWN THREE MONTHS AFTER THIS TRIAL
AND ALSO THAT SHE WAS RELEASED THREE OR FOUR WEEKS EARLY FROM HER SENTENCE AND THAT WAS NOT TOLD TO THE JURY THAT SHE WAS, IN FACT, OUT WHEN HER BABY WAS BORN. I WILL SAVE THE REMAINDER FOR REBUTTAL.
CHIEF JUSTICE: GOOD MORNING.
GOOD MORNING. I AM KEN NUNNELLEY, AND I REPRESENT THE STATE ON THIS APPEAL.
CAN YOU ADDRESS THE GWEN GURLEY ISSUE?
THE GWEN GURLEY ISSUE IS QUITE SIMPLY, A CREDIBILITY DETERMINATION THAT, UNDER LONG STANDING PRECEDENT OF THIS COURT, IS THE PROVINCE OF THE TRIAL COURT. UNFORTUNATELY I HAVE HAD THE MISFORTUNE TO ARGUE MOST OF THE CASES THAT YOU ALL CITE FOR THAT PROPOSITION AND THAT WE CITE FOR THAT PROPOSITION, THE LEAD CASE BEING STATE VERSUS SPAZIANO. THE CIRCUIT COURT HEARD THE WITNESSES TESTIFY WITH RESPECT TO GWEN GURLEY. THEY HEARD VICKI -- TO GWEN GURLEY. JUDGE LOCKETT, HEARD VICKI DAVIS TESTIFY. HER CREDIBILITY WAS BEFORE THE TRIAL COURT, AS WAS THE TESTIMONY OF THE OTHER INDIVIDUALS WHO TESTIFIED ABOUT THE
ALLEGED RECANTATION. RECANTED TESTIMONY IS EXCEEDINGLY UNRELIABLE, AS THIS COURT HAS REPEATEDLY SAID, AND I WOULD SUGGEST THAT THE CIRCUIT COURT DID, IN FACT, HAVE EVIDENCE BEFORE IT THAT REQUIRED IT TO WEIGH CREDIBILITY, AND THE FACT THAT VICKI, EXCUSE ME, GWEN GURLEY TOOK THE FIFTH AMENDMENT ON THE WITNESS STAND, DOES NOT MEAN THE CIRCUIT COURT HAD NOTHING BEFORE IT THAT COULD BE ASSESSED FOR CREDIBILITY. WITH RESPECT TO THE SUGGESTION THAT GWEN GURLEY'S TESTIMONY AT THE CIRCUIT LEVEL,
NOW LET ME BACK UP, WITH, THE IDEA OR THE SUGGESTION THAT THE STATE'S REFUSAL TO GRANT MISS GURLEY IMMUNITY IS, IN SOME FASHION, EQUAL TO UNAVAILABILITY UNDER THE EVIDENCE CODE, IS YET ANOTHER NEW CLAIM THAT IS BEING RAISED FOR THE FIRST TIME HERE.
WHILE COUNSEL WAS MAKING THAT ARGUMENT, I REVIEWED THE BRIEF AS QUICKLY AS I COULD. WHAT I THOUGHT OR HOPED WAS THE RELEVANT PORTION, AND I FIND NO REFERENCE TO UNAVAILABILITY UNDER THE EVIDENCE CODE CONTAINED WITHIN THE DEFENDANT'S BRIEF, NOR DO I FIND A CITATION TO THE EVIDENCE CODE IN THE TABLE OF AUTHORITIES IN THE DEFENDANT'S BRIEF. THEREFORE I WOULD SUGGESTION THAT THAT ISSUE IS NOT PROPERLY BEFORE THE COURT.
THAT ARGUED TO THE TRIAL COURT?
THAT IS A THAT, BECAUSE SHE TOOK THE FIFTH OR BECAUSE THE STATE WOULDN'T OFFER HER A DEAL, THAT HER TESTIMONY WAS UNAVAILABLE, AND THEREFORE THE COURT SHOULD CONSIDER HER OUT OF COURT STATEMENT?
WELL, JUSTICE ANSTEAD, I AM NOT TRYING TO DEFLECT YOUR QUESTION, BUT THE SHORT ANSWER IS
I DON'T REMEMBER, AND THE REASON I DON'T REMEMBER IS BECAUSE IT WASN'T RELEVANT, BECAUSE IT WASN'T RAISED ON APPEAL TO THIS COURT. NO REASON I WOULD BE READING IT FOR THAT, WHEN THE ISSUE IS NOT BEFORE THE COURT IN THE FIRST PLACE.
THIS WITNESS, THOUGH, THAT IS ALLEGED TO HAVE RECANTED, HAS NEVER TESTIFIED BEFORE A COURT, RECANTING HER TESTIMONY, IS THAT CORRECT?
THAT'S CORRECT, YOUR HONOR.
CAN YOU ADDRESS THE ARGUMENT THAT COUNSEL DID MAKE IN THE BRIEF, REGARDING GWEN GURLEY, AND THAT IS THAT COUNSEL FAILED TO CROSS-EXAMINATION OR
EVEN INVESTIGATE A FALSE ALLEGATION OF SEXUAL HARASSMENT THAT SHE HAD MADE ABOUT ANOTHER, ABOUT A SHERIFFS OFFICER, I THINK?
WELL, YOUR HONOR, FIRST OF ALL, I DON'T KNOW THAT THE, THAT THAT IS AN ISSUE OR A MATTER THAT RISES TO THE LEVEL OF STRICKLAND VERSUS WASHINGTON, DEFICIENT PERFORMANCE IN PREJUDICE. IT IS CERTAINLY A MATTER THAT COULD HAVE BEEN LOOKED INTO BY TRIAL COUNSEL. THE FACT THAT HE DID NOT LOOK INTO THAT, GIVEN THE FACTS THAT THIS CASE, WHICH WERE THAT GWEN GURLEY WAS MERELY A WITNESS. SHE WAS NOT ALLEGING SOME IMPROPRIETY ON THE PART OF MASCOT POLICE DEPARTMENT OFFICERS, WITH RESPECT TO HER. THE FACT THAT SHE HAD AN ALLEGATION WITH RESPECT TO ANOTHER LAW ENFORCEMENT OFFICER, DOES NOT, REALLY, HAVE ANYTHING TO DO WITH THE CASE. I MEAN --
IT DOES IMPEACH HER TESTIMONY, RIGHT?
IT IS IMPEACHMENT MATERIAL,
AND ISN'T, IS SHE THE ONLY ONE WHO TESTIFIED THAT, WHEN OFFICER DUCKETT RETURNED TO THE CONVENIENCE STORE, SHE IS THE ONLY ONE WHO SAID SHE, THAT HE, THEN, LEFT WITH THE VICTIM?
SHE IS THE WITNESS WHO PUTS THE VICTIM IN THE CAR WITH THE DEFENDANT.
