0 Acronyms: LDB: Linda Drane-Burdick LDB: Good morning, Your Honor. As the court so succinctly put it yesterday, the law is the law. And while a great portion of defense counsel's argument dealt with a recitation of what the law is, he spent the majority of it trying to distinguish specific facts of cases and comparing them to the unique facts and circumstances of this case. The cases that I have provided to the court the other day were not provided because they were factually similar, but because they quite clearly stated what I presume and believe the court and counsel already know: that at this stage of the proceedings, all inferences to be drawn from the evidence must be resolved in favor of the state of Florida. In fact, that the defendant admits all of the facts and inferences to be drawn from the evidence that has been presented. The reason Seranno, a recent opinion by the Florida Supreme Court was included in the case packet was for the proposition under the law that the state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence inconsistent with the defendant's theory of events. In Seranno, the court – the defendant's theory of innocence was an alibi. The state in that case presented ample evidence to establish that Mr. Seranno's alibi was lacking. In this situation, the record evidence of a defense in the form of Ms. Anthony's statements to family, friends and law enforcement, was that an individual by the name of Zenaida Gonzales kidnapped her child. And at that point, she had no contact with the child, and obviously did not know what had happened to that child. The evidence in this case has conclusively rebutted that hypothesis of innocence. Now, the suggestion in opening statement that there was some sort of accidental theory to be propounded at some juncture is exactly what I would argue Seranno is designed to avoid, that this is a possible variation of events that the state would, does not have to conclusively rebut. However, if the court accepts that the argument or even perhaps some of the cross examination of the witnesses, establishes that accident is a possibility in this case, Dr.

Garivaglia has stated unequivocally that this was not an accident. The suggested witness to this accident and this aftermath, Mr. George Anthony, has conclusively rebutted this hypothesis that, at a judgment of acquittal stage, the defendant is proposing the court accept. I would ask the court to turn its attention to a case that I admittedly did provide this morning in some follow-up research that I had done yesterday. That's the case of Jackson vs. State, found at 25 southern 3rd 518, an opinion of the Florida Supreme Court from 2010, out of Velutia County. In that case, it's on page 17 of the printout, I can't quickly tell you on what page of the opinion it is, I believe it's at 532 – the defense challenged that the state did not present sufficient evidence that the victim died based on the criminal agency of another. In that circumstance, Dr. Beaver, who was the medical examiner in Velutia County, in that judicial circuit, testified that because the body was badly decomposed, he was unable to perform a normal autopsy, but examined normal tissue and bones – he was unable to find a definitive injury to the victim, and classified the victim's death as homicidal violence of undetermined etiology, which is almost identical to the verbiage used by Dr. Garivaglia in this case, homicide by undetermined means. There was a, or there were a multitude of possibilities, hypotheses of innocence that were propounded in that circumstance by the defense, all of which were rebutted by Dr. Beaver, who according the opinion, throughout the testimony stressed that his opinion was based on his significance experience as a medical examiner, as well as the characteristics of the grave site, information he learned about the victim, and common sense. The opinion goes on to state that the weight to be given that testimony and that evidence were determinations for the jury. It is our position that a reasonable jury in this case can conclude that Caylee Marie Anthony died as a result of the application of three pieces of duct tape to her nose and mouth, that a reasonable jury can conclude that Caylee Marie Anthony died as a result of poisoning by chloroform, that a reasonably – a reasonable jury can conclude that Caylee Marie Anthony died as a result of the combination of the two, based on the evidence that was discovered in the trunk and the evidence connected with how her remains were discovered. It is our position that a reasonable jury can conclude that the relationship between the parties in this case, specifically Mrs. Anthony and her daughter Casey, could provide or did provide a motive for Casey Anthony to eliminate the child. It is our position that a reasonable jury can conclude that Ms. Anthony began preparations for the elimination of the child as early as March of 2008, when she conducted searches, computer searches for how to make chloroform and other means of weapons, and how to create injury.

Jackson goes on to state that the state does not need to present evidence proving the exact manner of the victim's death, or the location of the murder, citing Crane vs. State found at 894 southern 2nd page 54, Florida Supreme Court case from 2004, which affirmed a murder conviction based on circumstantial evidence, despite the fact the state did not establish how the murder occurred or even present the body of the victim. The only real issue as it relates to the judgment of acquittal at this stage has to do with the case of Brooks vs. state. The defense presented only that case to the court, although it is apparent from the questioning that the court is familiar with the litigation that has ensued as a result of Brooks opinion, which was issued in 2005 by the Florida Supreme Court. The first – that I could find – pronouncement as it related to Brooks actually came out of the 5th district Court of Appeals in 2006, in the case of Dorsey vs. State, which is at 942 southern 2nd 983. In that case, Dorsey does not address whether or not the language in the merger doctrine between aggravated child abuse and 1st degree murder would require a judgment of acquittal on the felony murder theory. In Dorsey, the 5th district Court of Appeals questioned whether or not shaking, in that circumstance, shaking a child to death could ever be considered a single instantaneous act. The act of course in Brooks that was under consideration was the stabbing, a single stab wound to an infant. And the 5th district Court of Appeals distinguished Brooks on the basis that the mechanism required to, or that did result in the death of the child in Dorsey was something that more than a single, instantaneous act. The court had mentioned Lewis, Amanda Lewis, which came out of the 1st district Court of Appears in May of 2010. In that case, Ms. Lewis was convicted of drowning her daughter by holding her under the water in a swimming pool. And again, this is where the 1st district Court of Appeals has indicated that the language in Brooks was dicta, not essential to the conclusion, and therefore they weren't going to apply it, and also questioned whether the act of holding the child under the water was a single act of aggravated child abuse. What's interesting is that subsequent to Lewis, in Sturdevant, which is – I only have the Florida Law Weekly cite – 35 Florida Law Weekly D 1993, a decision of the 1st district Court of Appeals in September of 2010, conflicts, the panels in the 1st district Court of Appeals, conflict with each other, as to whether or not the language in Brooks is in fact dicta. Appended to the opininns in both Lewis and Sturdevant, I attached the minutes as of last evening, at least the docket minutes, from the Florida Supreme Court, as to the status of both of those appeals. Lewis is on hold, pending resolution of the matter, and in Sturdevant, the last entry in the docket has to do with the reply brief, which is dated 2/1 of 2011.

The other opinions dealing with this subject, again coming out of the 1st district, is Lim vs. state, L-I-M, found at 50 southern 3rd 34, which is a 1st district Court of Appeals case from September 2010, where regardless of the language in Brooks, they indicate that the multiple events surrounding the victim's death would take it out of the holding in Brooks. Similarly, 2nd district Court of Appeals in Rosa vs. State, which was a case out of Hillsboro County, the opinion is dated March 2nd 2011, cited at 58 southern 3rd 900, that more than one hold or grip on the victim during a single act of abuse or strangulation would, the holds during strangulation did not constitute a single act of abuse. Therefore, it is our argument to this court that since a reasonable jury can conclude that Caylee Marie Anthony was caused by the application of multiple pieces of duct tape, which obstructed her airway, both her mouth and her nose, based on the evidence presented in this case, that that would not constitute a single act of abuse under the theories espoused by the various district courts of appeal in this state, and therefore the aggravated child abuse does not merge into the homicide, and preclude us from the application of the felony murder rule, either as it relates to the application of the duct tape or the administration of a poison to the child for whatever purpose. The other issue for the court's consideration as it relates to the judgment of acquittal has to do with the issue, admittedly, of premeditation. I've touched on this very briefly and I will not belabor the point, but at this juncture, resolving all inferences in favor of the state, the question is whether or not there is substantial competent evidence from which a jury could conclude that Ms. Anthony, based on her computer searches, based on the manner in which the evidence establishes that the child died, whether that could be concluded conclusively by the medical examiner, that this was an intentional act by the defendant designed to cause the child's death, that there is no fixed period of time that must pass despite earlier evidence of computer searches, but that when Ms. Anthony decided to place duct tape on the child's face – not one application, not two, but three – that sufficient time had passed for her to understand the nature and quality of that act, and that premeditation has been established as a result. Therefore, we would ask the court to deny the motion of acquittal as it relates to all counts of the indictment. End of transcript.

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