crime 1

IN THE SUPREME COURT IN AND FOR THE STATE OF FLORIDA
JAMES W. HAZEN
App e 1 1 ant
vs .
STATE OF FLORIDA
Appellee
CASE NO. 84,645
Cir. Court Case
N0.93-3302CF
Lynn A. Williams
Attorney At Law
902-A N. Gadsden Street
Tallahassee Florida 32303
Fla. Bar I.D. 195484
(04) 224-2146
TABLE OF CONTENTS
TABLE OF AUTHORITIES
PRELIMINARY STATEMENT
STATEMENT OF THE CASE AND FACTS
SUMMARY OF ARGUMENT
ARGUMENT
ISSUE ONE
THE TRIAL JUDGE ERRED IN DETERMINING THAT
THE EVIDENCE DID NOT SUPPORT PROPOSED
MITIGATING CIRCUMSTANCES AND WHETHER
OR NOT THE PROPOSED NONSTATUTORY
MITIGATING CIRCUMSTANCES WERE TRULY
MITIGATING
ISSUE TWO
i-ii
iii
1
2
79
82
82
87
APPELLANTS SENTENCE WAS DISPROPORTIONAL
TO THE SENTENCE RECEIVED BY A CO-PERPETRATOR
WHO WAS OF EQUAL OR GREATER CULPABILITY IN THE
COMMISSION OF THE CRIMES
ISSUE THREE 95
THE TRIAL JUDGE REVERSIBLE ERRED IN
ADVISING THE JURY THAT IT WAS NOT
LEGALLY PERMISSIBLE FOR A JUROR TO
ABSTAIN FROM VOTING IN THE PENALTY PHASE
ISSUE FOUR
MRS. MCADWS TESTIMONY THAT APPELLANT
RECOGNIZED HER AT A PREVIOUS ENCOUNTER
IN A COURTROOM SUBSEQUENT TO THE CRIME
DEPRIVED APPELLANT OF DUE PROCESS OF LAW
AND A FAIR TRIAL IN CONTRAIXNTION OF . ARTICLE I, SECTION 16 OF THE FLORIDA
CONSTITUTION AND AMENDMENTS V AND XIV
OF THE UNITED STATES CONSTITUTION
97
i
t
ISSUE FIVE
APPELLANT WAS DEPRIVED OF DUE PROCESS
OF LAW AND A FAIR TRIAL IN CONTRAVENTION
OF ARTICLE I, SECTIONS 9 AND 16 AND
AMENDMENTS V AND XIV OF THE UNITED STATES
CONSTITUTION
-. - . . . . .
99
. .... . . _ .. . .. . .. . - ... . . . . . . ... ..
CONCLUSION
CERTIFICATE OF SERVICE
100
100
ii
TABLE OF CITATIONS
CASES
Caldwell v. Mississippi, 472 U.S. 320 (1988); . . . . . . 95
Campbell v. State, 571 So.2d 415 ( F l a . 199Op, 83, 87, 97, 98
Edwards v. State, 538 So.2d 440 (Fla. 1989) . . . . . . . 95
Scott v. Dugger, 604 So.2d 465 (Fla. 1992) . 81, 88, 89
Slater v State, 316 So.2d 539 (Fla 1975) . . . 80,87,88,95
Tedder v. State, 322 So.2d 908 (Fla. 1975); . . . . . 95, 97
Wainwright v. Witt, 469 U.S. 412 (1985 . . . . . . . . . 87
Witt v. State, (direct appeal) 342 So.2d 497 (Fla.), cert.
denied, 434 U.S. 935, 54 L.Ed. 2d 294, 98 S.Ct. 422 (1977)87
FLORIDA STATUTES
Section 921.141, Fla. Stat. (1995) . . . . . . . . . . . . 80
FLORIDA CONSTITUTION
Article I, Sections 2, 9 and 17 . . . . . . . . . . . 94, 95
Article I, Sections 2, 9, and 16 of the Florida Constitution
.............................86
Article I, Sections 9 and 16 of the Florida ConstitutiQfi, 82
Article I, Sections 9 and 16 of the Florida Constitutiea, 82
UNITED STATES CONSTITUTION
Amendments V and XIV of the United States Constitutiol3.2, 83,
86
Amendments V, V1,and XIV of the United States Constitution.
...............,...............98
Amendments V, VIII, and XIV of the United States
Constitution.
. . . . . . . . . . . . . . . . . . . . ,...... 86,88
iii
JAMES W. HAZEN
Appe 11 ant
vs *
STATE OF FLORIDA
Appe 11 ee
CASE NO. 84,645
Cir. Court Case No. 93-3302CF
PRELIMINARY STATEMENT
This is an appeal from a sentence of death.
Appellant, James W. Hazen, was the defendant in the trial
court below and will be referred to in this brief as appellant or
Hazen.
References to the record, transcript, and supplemental
transcript will be referred to as "R", "T", and "S"respectively,
followed by the appropriate page number. There is also a volume
dated September 23, 1994 which is not consecutively numbered and
which contains the sentencing proceedings. This volume will be
referred to as S followed by the appropriate page number.
STATEMENT OF THE CASE AND FACTS
Appellant, James Hazen, along with Curtis D. Buffkin and
Johnny Kormondy, was indicted for premeditated and/or felony
first degree murder of Gary McAdams, three counts of sexual
battery against Cecilia McAdams by threatening with a weapon( a
firearm) or the use of actual physical force likely to cause
serious personal injury, one count of burglary and committing a
battery while therein, and one count of armed robbery (R 2-4).
Hazen was tried separately from Buffkin and Kormondy.
The case proceeded to jury trial.
Harold Cole testified that he lived next door to Gary
and Cecilia McAdams in the Thousand Oaks subdivision (T 504-505).
On July 11, 1993 Cole was awakened about one or one-fifteen in
the morning by his wife who heard a noise. A few seconds later
Cole saw Cecilia McAdams come out of her garage door hysterical,
dressed in a towel which was wrapped around her, and screaming
that Gary had been shot. Cole approached Ms. McAdams and asked
if there was anyone else in the house. Ms. McAdams answered no,
at which point Cole and Ms. McAdams went through the garage and
kitchen door into the McAdams home (T 506-508; T 516-517).
Cole observed Mr. McAdams lying on the kitchen floor.
Cole escorted Ms. McAdams to her bedroom so that she could
dress. Cole then went back to Mr. McAdarns. Cole observed
gasping or l i p movement from Mr.McAdams and saw Mr. McAdams
2
pupils dilating (T 510). Ms. McAdams was coming back up the
hall, screaming and asking if Gary was dead. Cole went to the
kitchen door and yelled to his wife on their front porch to call
911 and a neighbor, Mr. Andrews (T 511).
Ms. McAdams was stating that they had raped her. Cole was
trying to calm her down.
McAdams into a back bedroom (T511-513).
Cole's daughter arrived and took Ms.
Larry Andrews, a neighbor, went to the McAdarns' house in
response to Ms. Cole's phone call at 1:45 in the morning of July
11, 1993. Andrews saw Cole standing in the house visibly upset,
and Mr.McAdams on the f l o o r , still breathing. Andrews left for a
moment to get his glasses. When he returned, Ms. McAdams was
standing three or four feet away from Mr. McAdams. She was
repeating 'why did they do this, they told us if we did what they
told us, they wouldn't hurt us." She also said that they even
raped me. Andrews told Cole's daughter not to let Ms.McAdams
back in the kitchen (T 518-521).
Andrews observed the bedroom to be in total disarray and
almost knee deep, every drawer looked like it was piled up on the
floor *
In the kitchen there was a bottle of Corona beer lying on
the floor against the wall. There were a150 some Whataburger
breakfast sandwiches lying on the counter that looked like they
were partially eaten (T 520-521).
Mr. Fred Kennedy, an Escambia County Deputy, was in charge
of the identification and crime scene units. Kennedy found no
identifiable prints at the scene other than those that could be
matched to Cecilia McAdams and Gary McAdams. Kennedy found t w o
smudges that were consistent with fabric marks on the telephone
receiver and on the Corona beer bottle. Kennedy could not
identify the exact fabric. On direct examination by the state,
Kennedy agreed the fabric was consistent with socks (T 524-528).
Kennedy also testified that he assisted in putting together
a video tape of the scene. Over appellant’s objection, the
video, State‘s Exhibit 2-B, was admitted into evidence (T 528-
529).
Kennedy narrated, through questioning by the state, as the
video was shown to the jury. The video included a picture of
Mr.McAdams “as we found him” (T 530) with what appeared to be
droplets of blood at his feet (T 531).
Also included in the video was an open breakfast sandwich,
tacquita sauce, a Corona beer bottle, and a pair of ladies shoes
(T 532-533). In the first bedroom on the right, which appeared
to be an office or guest room, there was a phone whose wire had
been torn, jerked out, or violently removed. A partially
obscured phone in a second bedroom was in working order (T 534).
The master bedroom was in disarray and everything appeared
to be strewn around. A ladies silk dress was in the vanity area
4
A telephone in the bedroom was jerked out of the wall (T 535).
Kennedy then observes on another portion of the video,
toward the end of the video, that Mr. McAdams' body has been
turned over, and there are splatter marks on the wall (T 536-
537).
Deputy Paul Rice found a towel, marked as State's Exhibit
37-A, on the bed of the master bedroom (T 549). Also recovered
from the scene was a green silk dress [State's Exhibit 211 from
the dressing room immediately off the master bedroom (T 551-552).
A bullet fragment, [State's Exhibit 91 was found underneath the
carpet and pad in the vanity area of the master bedroom. The
fragment was located by a large blackened area on the surface of
the carpet (T 552).
Taylor attended the autopsy of Mr. McAdams, and identified
State's Exhibit 10 as the bullet that Dr. McConnell removed from
Mr. McAdams' brain (T 553).
Dr. McConnell, the medical examiner, who performed the
autopsy on Mr. McAdams, testified that Mr. McAdams died from a
contact gunshot wound to the head going in to the back side of
the left side of the head and traveling in a forward direction.
McConnell identified State's Exhibit 10 as the bullet he
recovered during the autopsy. He stated the bullet was flattened
into a mushroom shape because of the bullet's contact with the
front of the skull.
5
I
McConnell further testified that the wound was a contact
wound. Extensive soot was on the entrance wound and on the bone
underlying the wound. Soot occurs in this manner when the barrel
is pressed tightly against the skin and the unburned powder is
carried into the wound. McConnell also found a split in the
wound where the gases went into and underneath the scalp. This
occurs in a contact wound because the scalp is attached to the
underlying bone, and the gases from the firing of the firearm get
underneath the skin, blow it apart, and cause the skin to split
in that area. (T 560-566).
McConnell further testified that the wound would have
immobilized Ms. McAdams immediately, causing immediate loss of
memory and physical function. Despite the fact that Mr. McAdams
made some noises or sounds after the gunshot wound, McConnell
opined that Mr. McAdams was probably brain dead at the time and
it was not unexpected that some breathing would occur subsequent
to brain death (T 567-568).
Mr. McAdams blood alcohol level was .02; there was an
alcohol level of .78 in the stomach. This indicated that the
alcohol intake was still in the absorption stage at the time of
death. Mr.McAdams was not legally intoxicated. The alcohol
level findings were consistent with a person who had a drink or
two earlier in the evening and also had a drink right before his
death (T 568-569).
6
Ms. McAdams t e s t i f i e d that on July 11, 1993 she and her
husband attended a high school reunion. They left the reunion at
12:40 a.m., went through the drive-thru at a Whataburger
restaurant, bought two Taquitas and a cup of coffee, and then
returned to their home at 11561 Havenwood Road in the Thousand
Oaks Subdivision (T 576-581).
Mr. McAdams used the automatic garage door opener and drove
their car in the garage. They left the garage door up because
they were going to be taking their dog out for a walk. After
going through the kitchen door, Ms. McAdams kicked her shoes o f f ,
she and her husband put the food and some odds and ends on the
kitchen bar, and Mr.McAdams went into the bathroom to pick up the
dog (T 582- 584).
They were standing in the middle of the kitchen floor when
they heard a knock at the kitchen door. Mr. McAdams asked who it
was and a voice answered, "It's me". Mr. McAdams opened the door
and they saw a man standing there in the garage with a gun
pointed at them.
The man, who Ms. McAdams identified at trial as Darryl
Buffkin, by identifying a photograph [State's Exhibit 161 of
Buffkin, told the McAdams' to put their heads down or he would
blow their head off (T 584-587). The McAdams stared a t Buffkin
in shock. Buffkin then repeated his order, and the McAdams got
down on the floor and put their heads down.
7
Ms. McAdams heard two other people enter the house. She saw
two more sets of feet, and was told by "them" that "they" were
closing the blinds and ripping out the phone cord. "They" then
asked for money and car keys. Mr. McAdams threw what he had in
his pocket on the floor-- his wallet, money, and car keys and Ms.
McAdams told them her purse was on the counter and her keys were
in it.
Buffkin stayed and was telling them to keep their head down
and to what they were told. Ms. McAdams could hear the others in
the back of the house. She could hear drawers being pulled out.
One of the individuals came back, presumably with a pistol
Mr. McAdams kept in his drawer, and asked "who do you think
you're going to hurt with this". Mr. McAdams replied, "No one",
"They" then walked up behind Ms. McAdams, ran the pistol up her
hip, and t o l d her to come with "them". Ms. McAdams avoided
looking at the men because she had been told not to look and was
fearful she and her husband would be killed if she did look (T
588-590).
Both Mr. and Ms. McAdams begged them not to do this. Ms.
McAdams t o l d her husband to do what they told him because she
would be alright.
Ms. McAdams was taken to the vanity area of her bedroom and
sexually assaulted. Ms. McAdams stated that when she first went
to the vanity area she was wearing a green silk dress. Before
8
the sexual assaults, she removed the dress. One of the
perpetrators forcibly removed a tampax from her. One of the
perpetrators put his penis in her mouth, and threatened to kill
Ms. McAdams if she let it out of her mouth. At the same time,
another individual assaulted her by putting his penis in her
vagina. The two men bragged about it as they were assaulting her
(T 590-592; T595-596).
Ms. McAdams observed that one of the two men assaulting her
had mousy, dishwater-blond, stringy hair and something pulled up
over his head which covered part of his face. Ms. McAdams did
not notice if the other person had a mask on. When asked by the
prosecutor if "anyone of them had gloves or socks on their
hands", she replied "socks on their hands" (T 592-593).
Upon viewing State's Exhibit 15, a picture of Shane
Kormondy, Ms. McAdams said she recognized part of his hair and
his facial features. She was also able to say it was not the
hair of the man that came in the door with the gun [Buffkin] nor
the hair as depicted in a picture of Hazen [State's Exhibit 171
(T 593) .
Ms. McAdams was taken naked back to the kitchen and kneeled
down in front of her husband. She reached out to take her
husband's hand but "they" yelled at her to let him go, that
"they" had not said she could touch him, so she dropped his hand
(T 596) .
9
"They" found a beer in the refrigerator, slammed it down
between Mr. and Ms. McAdams, and said, "drink it" (T 596). Mr.
McAdams drank some of the beer (T 596).
Ms. McAdams was then taken back to the bedroom. When they
got back in the bedroom, the person who took her back there said,
"I don't know what the other two did to you, but you're going to
like what I'm going to do" (T 596-597). He then sexually
assaulted Ms. McAdams by putting his penis in her vagina. During
this time, Ms. McAdams heard a gunshot and screamed her husband's
name. She did not get a response (T 597). "They" then called
out for the person in the bedroom. He jumped up, threw a tan
colored towel over Ms. McAdams head, and then Ms. McAdams heard a
gunshot in the bedroom (T 598).
Ms. McAdams ran into the kitchen and found Mr. McAdams lying
on the floor with blood around his head. She thought he was
alive because there his mouth was moving. She at first tried to
call for help, but then remembered the phones had been pulled
out. She covered herself with the tan towel and ran outside. At
that time she ran into her neighbor who was on his way across to
her yard. Ms. McAdams was screaming and the neighbor asked her
to please q u i t screaming. Ms. McAdams returned to her house and
stayed until the emergency medical services and law enforcement
officers arrived (T 597-599).
There were items taken from the home, including numerous
10
purses, jewelry, watches, rings, a pistol, cash, and car keys (T
607- 608).
Mrs. McAdams was examined at the hospital at about five in
the morning. M r s . McAdams t o l d the examining nurse that she had
been orally assaulted and that one of the perpetrators had
ejaculated in her mouth and forced her to swallow it. Vaginal
swabs were taken (T 601).
Prior to the state calling Ms. McAdams as a witness, the
defense attorney moved in limine to preclude Ms. McAdams from
making any statements in regard to identifying Hazen based upon
having seen Hazen in court previously. The prosecutor agreed
that Ms. McAdams was expected to testify that she recognized
Hazen from seeing him in court, but not from seeing him at the
house when the crime was committed. The trial judge commented
that since M s . McAdams was not going to say she had seen Hazen
before at the house, that '1 don't know that that's particularly
harmful'' (T 572). The defense attorney responded that the
testimony was not relevant, that the jury could conclude it was a
type of an identification, and that there was no need for the
testimony. The trial judge then ruled, \'I'm not going to
preclude the State from doing that provided it's absolutely clear
in your questioning that the identification was such that it was,
that she recognizes him from other court appearances pertaining
to this case" (T 572).
11
M r s . McAdams testified t h a t she attended a court hearing in
Courtroom 401 where Buffkin, Kormondy, and Hazen were scheduled
for a court appearance with their attorneys. Mrs. McAdams was
s i t t i n g in the audience section behind the prosecutor's table.
The courtroom was crowded and there was standing room only (T
602-604). Mrs. McAdams immediately recognized Curtis Buffkin.
She also saw 'the individual in the other photograph [the
prosecutor] showed [her] with the long scraggly hair or [someone]
who looked like him" (T 603).
The prosecutor then elicited the following testimony from
Mrs. McAdarns:
Q: [prosecutor] Now while you were seated in
that courtroom, did anybody who you did not
recognize, someone who you didn't apparently
believe you knew, anybody look strange at
you.
A: [Ms. McAdams] Yes sir, they did.
Q: If you see that person in the courtroom
today would you point to them and speak their
name as you know their name?
A: James Hazen.
Mr. Edgar [prosecutor] : Your Honor, I
would l i k e the record to reflect the witness
identified this defendant as the person she
saw in the court on this case.
A: Yes, sir.
The Court: The record will so reflect (T
604).
....
12
Q: Would you tell the jurors what you noticed
about him noticing you?
A: Okay, I was sitting there in the seat and
this person kept looking at me but not really
willing to make eye contact with me.
Whenever I would catch him looking at me, he
would look away and it was more of worried
look or a --- (T 605)
...
Q: Would you characterize in your description
this defendant's manner in which he looked at
you in court?
A: He was, he appeared uncomfortable. He was
unwilling to make eye contact with me.
Whenever I looked at him because I could see
that he was looking at me, he would look
away. I would look away and then I would
catch him looking at me again and it was a
worried, uncomfortable look (T 606).
...
Q: And at that time did you think you knew
this person?
A: No, sir.
Q: Did you wonder about that?
A: Yes, sir.
Q: Later during that same court proceeding
while you were sitting there, did they call
that person's name, this defendant's name.
A: Yes, sir, they did.
Q: And you heard the name?
A: Yes, sir (T 606-607).
Ms. Jane Hatcher, a registered nurse, performed an
examination on Ms. McAdams. Hatcher identified State's Exhibit
13
38-A as the tampax collected from Ms. McAdams (which she had used
subsequent to the assault but before the examination) and State‘s
Exhibit 36-A as blood drawn from Ms. McAdams (T 6 4 0- 6 4 3 ) .
At a later time, Hatcher also drew blood from Buffkin
(State’s Exhibits 35-19)‘ Kormondy (State‘s Exhibit 41), and Hazen
(State’s Exhibit 42) (T 644).
Magda Clanton, a forensic serologist with Florida Department
of Law Enforcement, examined various items.
Clanton performed tests to determine the secretor status of
the individuals she tested as well as their blood type.’ Mr. and
Mrs. McAdams were both non-secretors with blood type A (T 651).
Kormondy w a s a secretor with blood type A, Buffkin was a secretor
with blood type B, and Hazen was a secretor with blood type A (T
6 5 1- 6 5 2 ) .
Clanton found semen or sperm on the vaginal swabs, the
tampons, and a tan towel (T 650). Clanton was unable to detect
blood factors from the semen stain on the towel. Clanton opined
that this could be due to an insufficient amount of semen for
testing (T 6 5 2 ) .
Present on the vaginal swabs and tampon were blood types A
A “secretor” has detectable amounts of their blood type in their saliva, and in their
vaginal fluid or semen. In a %on-secretor”, blood type cannot be detected in their saliva, or in
their vaginal fluid or semen.
14
and B.2
Clanton requestec DNA testing on the tampon, the vaginal
swabs, the liquid blood samples, two panties from Mrs. McAdams, a
blue throw rug, jeans and white socks belonging to Kormondy (T
658-661; T663).
Clanton testified that the results of DNA testing are sent
from the testing lab to the State Attorney's Office. Clanton
said she was not sure if the results were generally given to the
defense (T 664).
Valerie Kormondy, wife of Johnny Shane Kormondy, testified
t h a t in July, 1993, Curtis Darrell Buffkin, a friend of her
husband's, came and stayed several days at their home at 6813
Pine Forest Road. When anyone came to the door, Buffkin would
hide (T 694-696).
On Saturday, July 10, 1993 Valerie went with Shane Kormondy
to a family reunion in Cantonment. They drove Shane Kormondy's
camaro.
Valerie described the camaro as silver, a black 2-28 bra on
the front, a dent on the left-hand side, and a silver Bad Boy
sticker on the back and identified State's Exhibits 18, 19, and
20 identified as pictures of the camaro (T 701).
Shane and Valerie ran into Hazen at the reunion. Shane
Also present was type H. This is present as a precursor building block and is present in
Blood types A, B, and 0 (T 652-653).
1s
Kormondy told Valerie that Hazen was going to come back to their
house and Shane, Valerie, and Hazen drove back to the Kormondy
house in Sham's camaro.
Amy Bradley and James Popejoy, friends of Valerie, stopped
by the house. Around five or six in the evening, Shane Kormondy,
Buffkin, and Hazen left the house. They were gone for one or two
hours, and returned about seven. They left again about nine in
the evening in Shane Kormondy's camaro (T 697-701).
Bradley and Popejoy left at midnight, and Valerie went to
bed at one in the morning (T 702). Valerie woke up about five in
the morning, and saw Shane Kormondy, Buffkin, and Hazen awake and
dressed sitting in the living room (T 702). Valerie went back to
bed and got up again about seven. She went to the family owned
bait store in front of her house. Shortly after that, Lane
Barrett, Shane Kormondy's mother, called on the phone for Hazen.
Barrett asked Valerie to take Hazen to the Food Max on Pine
Forest Road, because Barrett and Hazen were going fishing (T
705).
After showering and dressing, Valerie and Hazen went to the
car. Valerie testified that she opened the door and saw a bag of
jewelry. Valerie further testified, "and I asked him -- I'm not
sure if these were my exact words. I said James, did y'all rob
anyone last night? He said yes, we did. When I started to ask
him more detailed questions about itr he started to shut up and
16
he said well, 1 really don‘t remember anything because I was
drunk (T 706- 707). In response t o leading questions, Valerie
agreed that Hazen acted nervous and different that morning (T
706- 707).
Valerie dropped off Hazen and returned to her home. She
woke up Shane Kormondy and told Shane that he and Buffkin had to
leave (T 707).
Valerie heard and read news accounts of the break-in and
shooting death of Mr. McAdams. She called Crime Stoppers and
attempted to remain anonymous (T707- 709). Valerie disputed that
she called because there was a reward offered (T 7 0 8 ) .
Over appellant’ s hearsay objection, and the court I s finding
that the statement was being admitted for something other than to
prove the truth of the matter asserted, Valerie testified
concerning her second call to the deputy at Crime Stoppers as
follows:
I told him that I believed I knew something
about the case that they were investigating,
the homicide, and I told him that one of the
men were my -- was my husband and I was
scared as for my child. I told him that the
other two w e r e hi5 friends, and one of the --
one of the guys‘ names was Darrell and that
he had escaped from Camp 5. I told him that
I wasn’t doing it for the money. I told him
their clothes. I described the clothes that
they were wearing (T 7 1 1 ) .
Valerie’s mother was with her at the time and talked Valerie
out of giving more information. Valerie stated that she wanted
17
to give the deputy all three names, i.e., Shane Kormondy, Hazen,
and Buffkin (T 711).
Valerie was deposed twice before trial. Valerie stated that
she did not tell the entire truth at the depositions, only
answered the questions asked, and didn't tell everything she
knew. Later, she told the entire truth after being asked to do
so (T 712)
Valerie said she did not tell everything she knew initially
because she was scared there was a chance they would get out, and
also that anything that hurt any of the defendants would also
hurt her husband. She said she now felt scared, wanted to do
what was right, but felt caught in the middle (T 713-714).
On cross-examination, Valerie stated she had filed for
divorce from Shane Kormondy (T 715).
Valerie said she knew at the time Buffkin came to stay at
their house that he was an escaped prisoner. Buffkin arrived at
their house about four days before July 11th. After Buffkin's
arrival, Valerie saw Buffkin and her husband bring in VCR's,
stereo equipment, and a gun, which Valerie knew were stolen.
Valerie also saw Buffkin driving a car which she believed was
stolen. Valerie agreed she did not call Crime Stoppers at that
time and tell them that her husband had an escaped prisoner in
the house or that they were stealing (T 715-717; T 719).
Valerie said Hazen was visiting the area from Oklahoma and
18
staying with relatives at a boathouse in Alabama. She and Shane
Kormondy visited the boathouse at times, and other times Hazen
visited at their home. Prior to the evening in question, Hazen
had not been at their house while Buffkin was there (T 717-719).
On J u l y 9, [Friday evening] Valerie left the house and
stayed at her parents’ home because of a fight with her husband.
Valerie testified that the next day, Shane Kormondy picked her up
at her parents house to take her to the family reunion in
Cantonment. In contrast to her testimony on direct, Valerie
testified that Lane Barrett, [Shane Kormondy’s mother], took her
and Shane to the reunion in Lane‘s car and that she did not know
where Shane Kormondy’s car was at the time (T 720-721). They
stayed at the reunion about an hour. Valerie guessed that they
went back to her house with Hazen in Lane Barrett’s car (T 723).
Shortly after arriving back at the house, Valerie saw
Buffkin in the house. A friend of Buffkin‘s stopped by and
stayed about five minutes. Because Valerie w a s sick, Shane
Kormondy, Buffkin, and Hazen went out and got Valerie some
medicine about three or four in the afternoon (T ).
Valerie said the jewelry she found in the car was in a zipl
o c k bag behind the driver’s side near the back seat (T ) .
Valerie agreed that when she gave a statement to
Investigator Allen Cotton on July 29, 1993, that she did not say
anything to him about finding the bag of jewelry in the car, or
19
r’
t r
any statements that Hazen may have said about the robbery (T
731). Valerie also agreed that she did not say anything about
the jewelry or Hazen's purported statement at a deposition held
November 4, 1993 at which time the prosecutor and three defense
attorneys were present (T 732).
Valerie said she was aware there was a $50,000 award offered
for information at the time she called Crimestoppers. After
November 4, 1993 Valerie became aware that other individuals were
seeking the reward. Subsequent to that, at a deposition held
June 8, 1994, Valerie told the defense attorneys' for the first
time about the bag of jewelry.
Valerie agreed that she knew that in order to receive the
$50,000 reward, that it required not only an arrest but also a
conviction of the three people that were arrested (T 733-734).
Valerie testified that she did not intend to claim the reward (T
708; T 732-733) a
Valerie agreed that she had testified differently at her
deposition on June 8, 1994 then she was testifying at the present
trial. In confronting Valerie with her prior deposition
testimony, the defense attorney asked:
Q: Back then, on June the 8th, you told --
you told me -- my question was, "Did you ask
him about the bag? What's in this? Did you
guys rob somebody? Did you ask James [Hazen]
about the bag?" You said yes. My question
then was, "Did you show him the bag?"
"NO, I don't think so. I just remember
asking him if they had robbed some houses or
20
“’
1
anything, because I seen the jewelry. I
don't know if I picked it up." Period. ‘I
know I didn't pick it up and show it to him
and say, hey did you-all rob a house? I see
this jewelry here." My question, "You didn't
do that? You just asked him had they robbed
a house, and you say he indicated yes?" (T
737-738).
During cross-examination, there was the following colloquy
between defense counsel and Valerie Kormondy:
Q: Now, you said that you asked *.. Mr.
Hazen, . * ., if he had robbed -- if they had
robbed any houses?
A: Yes.
Q: What did you say his response was?
A: Yes.
(1: I think your testimony a few minutes ago,
he said yesI E did. Is that what he said?
[Emphasis supplied].
A: Yes, it is. I don't know how much I'm
supposed to say here.
Q: Say the truth, ma'am.
A: Excuse me?
Q: Did he say yes, we did, or yes --
A: Yes, he did.
Q: Was his response yes, we did, or yes, they
did?
A: Yes, we did (T 739).
Defense counsel then inquired concerning a statement
previously made by Valerie Kormondy at deposition:
21
Q: Where we were, Mrs. Kormondy, before we
took the break here, is that we were talking
about your statement from June 20 -- I'm
sorry, June 8th of 1994, on page 22 at line -
- starting at line 15, the question, "Now,
you indicated to Mr. Edgar that at some point
after the murder, James Hazen had a
conversation with you about it"? At line 18,
your answer, "Well, when I went to take him
to meet Lane that morning, I asked him if
they had robbed any houses, because I seen a
bag of jewelry in the car. He said yes, that
thev did." Did you make that statement on
June the 8th of 1994? [Emphasis supplied].
A: I guess so.
Q: Yes or no, ma'am. Did you make that
statement.
A: Yes (T 750-751).
On re-direct examination, the prosecutor brought out another
part of the deposition asking Valerie, "Do you recall being
asked the question on line 12, and it reads, 'Did you ask him
about the bag, what is this?' Did you rob the guys -- 'Did you
guys rob somebody? Did you ask James about the bag'. What was
your answer to Mr. Albritton?" (T 756). Valerie responded that
her answer to Mr. Albritton had been, "yes" (T 756),
On re-direct, Valerie also testified that the information
she added after the November 3, 1993 deposition was after she was
called into the prosecutor's office. Present were Mr. Edgar and
another employee of the state attorney's office, a victim
advocate named Arlene Fragale. Valerie said she was told if she
knew anything else, she needed to come forward with it. At that
22
point, she was ready to tell everything she knew (T 758-759).
Outside the presence of the jury, the prosecutor summarized
testimony which he wished to present at trial, stating, "The
state would proffer the testimony of Arlene Fragale, who will
testify that she was present in my office when Kay Kormondy
spontaneously responded with the information about the gun and
the conversation without any prompting, with some reluctance,
only upon being asked to tell if there's anything more that she
know because it is suspected that she knows more. So the
circumstances of her [Valerie Kormondy] telling that are
important to rebut the notion of the Defense that she's merely
fabricated it after the fact, okay, for purposes of collecting a
reward. So her prior consistent statement and circumstances
surrounding that statement are relevant in this case (T 766).
The judge considered the issue of whether or not the
testimony from Fragale was to rebut the implication of recent
fabrication (T 766)
The defense attorney argued in that case, a proper predicate
had not been laid. The testimony about Valerie Kormondy's
knowledge of the reward, and the reward being contingent on a
conviction, occurred sometime after November 3, 1993 [the first
deposition] and June 8, 1994 [the second deposition].
The state agreed that it had not been established that the
statement made to the prosecutor, in the presence of Arlene
23
Fragale and outside the presence of the defense attorneys, and a
few days before the June 8, 1994 deposition, was a statement made
before Valerie Kormondy became aware that there was an award of
$50,000 which was being sought by other people and which required
a conviction (T 771).
The trial judge ruled any prior consistent statement made to
Arlene Fragale by Valerie Kormondy to be admissible (T 77 1.
Arlene Fragale testified that she was a victim witness
counselor with the State Attorney's Office. She was asked by the
prosecutor to sit in and witness an interview between the
prosecutor and Valerie Kormondy. Fragale stated that her
understanding of the interview was that there was another
deposition scheduled, that Valerie had not given a complete
statement before, and was going to do it at that time. Fragale
said Valerie was asked general questions. Defense counsel's
objection to the question, "Was she [Valerie] urged to tell the
truth?" was overruled. Fragale responded, "She [Valerie] was
urged to tell the truth". Fragale then testified in response to
the next question that Valerie then gave information. After the
trial judge overruled defense counsel's objection to the
question, "Was she [Valerie] led in any way particular area or
was she generally asked to provide what she knew?", Fragale
responded that Valerie was generally asked. Fragale also
testified that Valerie was reluctant and felt bad (T 780-784).
24
Kenneth Hoag, a latent fingerprint examiner with the Florida
Department of Law Enforcement, found a fingerprint of appellant's
on a Hardee's bag which was found inside Kormondy's Camaro (T
791). Kormondy's prints were found on several items in the car
(T 793).
The jury was shown, without objection, a video of the
Kormondy home (T 798-800).
Fred Kennedy, a latent print examiner, examined fingerprints
lifted from the Kormondy home. Kennedy identified two
fingerprints from Buffkin on a liquor bottle, several prints from
Kormondy, and none from Hazen (T 800-801)
Paula Sauer, a fiber analyst with the Florida Department of
Law Enforcement, examined a green silk dress and compared it to
vacuum sweepings taken from Kormondy's Camaro. Sauer found eight
green silk fibers that were microscopically consistent with the
green silk fibers of the dress. One green silk fiber was from
the vacuumings from the front driver's seat, one from the
vacuumings from the driver's floor, three from the vacuumings
from the front passenger's seat, one from the vacuumings from the
front passenger floor, and two from the vacuumings from the rear
seat (T 814; T816-817).
Sauer also compared fibers from the seat covers of the
Camaro with debris taken from the carpet in the McAdams' bedroom
area. She found two gray fibers consistent with the carpet on
2 5
the seat covers (T 817).
Sauer said the meaning of microscopically consistent was
that the items could have come from the compared item, that they
were microscopically similar, but that she could not say they
were a match (T 820).
Three law enforcement witnesses testified that Shane
Kormondy was arrested for the murder of Gary McAdams. Kormondy
was seen leaving his place of employment at about two in the
afternoon on July 19, 1993 in a Dodge Ram Charger. The officers
attempted to stop Kormondy as he was driving away. Kormondy fled
the vehicle and was apprehended about an hour later and formally
arrested between three and three-fifteen (T 824-834).
Allen Cotton, an investigator with the State Attorney's
Office, met with Kormondy's family at the sheriff's department in
the late afternoon or early evening hours after Kormondy's arrest
on July 19, 1993.
Sometime after Kormondy's arrest, Cotton requested that
James Hazen be located and arrested. Hazen was arrested in Ponca
City, Oklahoma on the evening of the 19th. Cotton identified
State's Exhibit 17 as a picture of James Hazen taken on July 21,
1993, the date that Hazen arrived back in Pensacola (T 838).
This picture was subsequently admitted into evidence over
appellant's objection that the picture was irrelevant,
prejudicial, and had no probative value (T 844-845).
26
Cotton also testified that after the arrest of Mr. Hazen or
during this time, he also directed authorities to try to locate
and arrest Curtis Darrell Buffkin. Buffkin was arrested in North
Carolina.
Cotton met with Kormondy's family at the sheriff's
department in the late afternoon or early evening hours of June
19th. Cotton did not reveal to the Kormondy family who else he
was attempting to arrest (T 835-837).
Cotton stated he also reviewed pertinent media coverage and
did not see Mrs. McAdams picture published in the paper or on
television (T 838).
Stephen Huth, North Carolina Police Department, arrested
Buffkin in Cary, North Carolina. At the time of Buffkin's arrest,
Huth found a pistol [State's Exhibit 28-A] (T 840-841) and his
back-up recovered a gold wedding band [State's Exhibit 301 from
Buffkin's sister (T 840-841; 849-850). James Chaney testified
that in early July his home was burglarized. A pistol, State's
Exhibit 28-A, was one of the items taken as well as State's
Exhibit 30, a wedding band (T 846-847).
Edward William Love, a firearms examiner with the Florida
Department of Law Enforcement, said the pistol taken from Buffkin
was a .44 special Charter Arms Bulldog model [State's Exhibit 28-
Al . The fragmented projectile found in the floor of the McAdams'
bedroom was consistent with a .44 caliber bullet. Due to the
27
damaged condition of the projectile, Love could not say whether
or not the . 44 caliber pistol recovered from Buffkin had fired
the bullet which was found in the bedroom; Love could say that it
was fired from a revolver with the same class characteristics (T
860-861).
Love also testified, in the following colloquy, as to the
manner in which the bullet was fired into the bedroom carpet.
Q [prosecutor]: Okay. Could you tell
from the carpet the proximity of the firing?
A: Yes sir, I could.
Q: What was the proximity?
A. This piece of carpet -- or the,
excuse me, firearm was at or near contact
with the piece of carpet at the time of
discharge.
Q: Have you previously examined
photographs of a carpet with appears to be
gunshot residue in this case?
A: Yes sir, I have.
Q: Sir, do you have an opinion as to
whether the firing of that bullet into the
carpet was one that was accidental or
deliberate?
A: It was difficult to tell just from
the photographs themselves. However, it's
not something that I've ever seen before
where someone would deliberately fire a nearcontact
shot into carpet, into a floor or a
slab with this type of -- any type of
firearm, for that matter.
. . .
Q; Knowing the characteristics of the
2 8
type of pistol before your the .44-caliber
pistol, how likely is it that if someone fell
down and was holding that pistol, that it
would fire in the manner in which we see
there on that carpet and the manner of carpet
that you examined?
A: It would not be very -- to me, it
would be very unlikely.
Q: It would be more likely or more
consistent with someone deliberately firing
into the floor?
A: Yes, sir (T 862-863).
Love also testified that the bullet recovered from Mr.
McAdams was a .38 special or .357 caliber bullet, The bullet
could have been fired from a Smith & Wesson .38-caliber model 10
with a four-inch barrel. The bullet was not fired from the .44
Charter Arms bulldog pistol (T 859-860).
Love stated that the Smith and Wesson .38 caliber model has
two internal safeties and that both of these safeties were
designed to keep the gun from discharging if the hammer were to
fall and the finger was not on the trigger. It was a double
action revolver meaning that it could be fired simply by pulling
the trigger -- i.e., pulling the trigger will cock the hammer and
fire the gun. On that model, if the gun is first cocked and then
the trigger is pulled, it takes three to five pounds of pressure;
pulling the trigger without cocking the gun first requires nine
to twelve pounds of pressure (T 863-867).
Johnny Shane Kormondy was called by the state as a witness
29
outside the presence of the jury. The state offered Mr. Kormondy
use immunity. Kormondy refused to testify. Kormondy was held in
civil contempt and sentenced to jail until such time as he
elected to testify (T 900-902).
Curtis Darrell Buffkin was called as a state witness. Prior
to the jury being brought in, and over Hazen's objection, the
trial judge ruled that Buffkin's attorney Mr. Kevin Beck, also a
witness, could be present while Buffkin testified. This was true
even though Mr. Buffkin had another attorney who could have been
used to present the testimony the state wanted to elicit. The
ruling was made in the following colloquy:
THE COURT: All right, Mr. Buffkin if at any
point in time you wish to cease your
testimony and take a break let me know and we
can do that and we can send the jury out.
Is counsel for Mr. Buffkin present here?
MR. EDGAR: Mr. Beck is present outside.
MR. ALLBRITTON: Your Honor, Mr. Beck has
been listed as a witness in this case and the
rule has been invoked.
THE COURT: By both counsel?
MR. ALLBRITTON: Yes, sir.
MR. EDGAR: I think that the rule can be
waived in that respect by the Court because
of the unique circumstances of this case.
MR. ALLBRITTON: I don't think it can.
MR. EDGAR: I think the Court has discretion
to do whatever.
THE COURT: Mr. Buffkin, do you wish your
30
attorney to be present in the courtroom when
you testify or are you satisfied that you can
proceed without his presence?
THE DEFENDANT: Well, I would rather him be
in here.
THE COURT: You would rather him be in
here? Okay.
MR. ALLBRITTON: He has two attorneys, Your
Honor.
MR. EDGAR: We'll be half a day finding the
other one, he's campaigning for Judge. Mr.
Buffkin, how about this, what if you got into
a problem and you just mentioned to the
Judge, Judge I need to take a break and
then you can go talk to your lawyer. would
that be okay, rather than have him sit here
the whole time?
THE DEFENDANT: I would rather have him in
here.
MR. EDGAR: Your Honor, it's your
prerogative and discretion to waive the rule.
MR. ALLBRITTON: Your Honor, the problem I
have is that Mr. Beck is listed as a witness
to testify as to what occurred in this so
called deal. Now, I may ask Mr, Buffkin
some questions about that and Mr.Buffkin, if
Mr. Beck is in here, would have a right to
clarify that or at least get statements from
his attorney. If his attorney was not
listed as a witness then I would have no
problems with it whatsoever but I think
that's not fair to my client.
THE COURT: Let me ask you this, what do you
believe the substance of Mr. Beck's testimony
to be?
MR. EDGAR: Before I answer that can I say
one thing? He was present at the deposition,
Mr. Beck was. The deal -- the deal as he
calls it, the agreement was a matter of
31
record. The substance of his testimony would
be to rebut any notion that Mr. Buffkin made
Mr. Hazen's involvement up. He didn't make
it up because he told his lawyer about it
before he went to trial and that's what Mr.
--
THE COURT: This would be used in rebuttal
or during your case in chief?
MR. EDGAR: During the case in chief if his
motivation for involving Mr. Hazen -- if Mr.
Allbritton tries to claim that Mr. Buffkin
is not trying to tell the truth about Mr.
Hazen being there, then I'm going to argue
that he is telling the truth because he told
his own lawyer that before the trial, that's
a prior consistent statement and that's the
only reason I would be calling him.
THE COURT: Okay. Mr. Beck is also an
officer of this Court in addition to being a
witness in this case which makes him
qualitatively different than most witnesses.
Also, counsel has been present during the
entire deposition process of this witness.
Counsel, you were present during that time,
weren't you?
MR. ALLBRITTON: Yes, sir, I was present
during the deposition, Judge.
THE COURT: Okay. I'll allow Mr. Beck to
be here during this testimony. I think that
the rights of this defendant clearly outweigh
the exercise of the Court's discretion in
imposing the rule, of, to sequester this
particular witness.
Mr. Beck will please be called to the courtroom.
MR. ALLBRITTON: My objection is noted for
the record, Your Honor-
THE COURT: Yes, sir, your objection is
overruled.
. . .
32
MR. EDGAR: Mr. Beck is present.
THE COURT: All right, let the record
reflect that counsel for Mr. Buffkin, Mr.
Beck, is present. He's available to consult
with his client in the event that his client
wishes that (T 906-910).
Immediately after Mr. Buffkin began testifying, defense
counsel approached the bench to advise the court that defense
counsel had "watched the first two questions . When he [the
prosecutor] asked a question, Mr. Beck went (indicating)." The
trial judge stated he hadn't noticed it independently. The trial
judge then advised Mr. Beck that "counsel suggests that you are
guiding your witness [Buffkin] by making gestures to him either
yes or no". Mr. Beck responded to the Court stating, "If I was,
I will not make any gestures" (T 911-912).
During a break taken later in Buffkin's testimony, Buffkin
was told that he could confer with his attorney Mr. Beck (T 977-
978).
During his testimony, Buffkin agreed that he had been
arrested, tried, and then plead guilty to the offenses of
burglary, robbery, sexual batteries and murder in the death of
Gary McAdams and was willing to testify (T 911).
Buffkin said that he had escaped from the county road camp
on July 6th and went to Kormondy's house on July 8th. During the
time Buffkin stayed with Kormondy, Buffkin and Kormondy broke
into a house near Nine Mile Road and stole jewelry, money, and a
33
g u n . Buffk in identified the , 44 Charter Arms Bulldog pistol as
the gun stolen [State's Exhibit 28-A] (T 912-914).
After stealing the gun, Buffkin and Kormondy talked about
breaking into a house and robbing it when the owners were home,
on the assumption that they would get more money that way.
Earlier in the week, they had broken into some houses and stolen
things and, in some ways,it was difficult to sell the items and
get money for them (T 914).
Buffkin did not meet Hazen until July 10 when Hazen came
back to the Kormondy house after a family reunion (T 915). At
that time, Buffkin and Kormondy had already decided that they
were going to break in a house and rob people (T 916).
Kormondy, Buffkin, and Hazen went to a store and bought some
medicine for Mrs. Kormondy. After bringing back the medicine and
staying around the house for awhile, Kormondy, Buffkin, and Hazen
left again in Kormondy's car and went riding around. When asked
by the prosecutor if they were looking for a place to break into,
Buffkin replied, "me and Kormondy was at the time" (T 916-917).
They again went back to the house. There was other company
at the house. Shane and Valerie Kormondy talked in their
bedroom. Buffkin sat in the kitchen and drank whiskey. Kormondy
then came in and Buffkin and Kormondy started talking about
hitting up a house (T 917-918). Hazen was not present in the
kitchen at this time.
34
As Buffkin, Hazen, and Kormondy were going out the door,
Buffkin realized he had left the gun underneath the chair.
Buffkin told Kormondy he had left the gun, and Kormondy told
Buffkin they had to get it. Hazen was already going towards the
car when Buffkin ran into the house, took the gun from underneath
the chair, walked outside the door, shoved the gun down his
britches and got in the car. After Buffkin got in the car, he
took the gun and slid it down up underneath the carseat (T 917-
918). Kormondy was driving, Buffkin got in the front passenger
seat, and Hazen was in the back behind the driver's seat (T 921-
922). It was getting dark and was between eight and nine when
they left.
Buffkin testified that they were scoping out places and just
riding around. They stopped once at a bar (T 947-948).
Buffkin and Kormondy started talking about hitting a house.
Buffkin saw a car in the subdivision and then Kormondy said,
That's us". Buffkin then testified, "I knew what time it was
already. I knew we were fixing to go ahead and hit a house. I
don't know if Hazen heard it or whatever, if he knew, if he even
knew what was going on" (T 922-923).
Kormondy pulled the car over and they sat for a bit.
Kormondy, Buffkin, and Hazen got out of the car. Buffkin was
ahead and when he turned around he saw Kormondy and Hazen putting
socks on their hands. Buffkin saw Mr. McAdams walk by the garage
35
door and then go in the house.
Buffkin walked to the driveway. Kormondy was off to the
side from where the door was and was putting a white T-shirt over
his head so that only his eyes showed. Buffkin didn't see a Tshirt
on Hazen at the time. After they entered the house,
Buffkin saw that Hazen had a T-shirt over his head also. Buffkin
knocked on the door. He heard someone say "who is it" and
Buffkin replied, "me". Mr. McAdams opened the door and Buffkin
saw Mr. and Mrs. McAdams standing there. Buffkin testified that
he then looked at them, showed them the gun, and said, "put your
heads down and don't look up or I'll blow your fucking heads off"
(T 928). They looked shocked. Buffkin told them to put their
heads down and get down on the floor, do as he said, and no one
would get hurt. Buffkin said the McAdams' got down on the floor
and did exactly as Buffkin said.
Buffkin said that all along the plan was to just go in
there, get money, guns and jewelry and get up out of there (T
923-928).
When asked what plan they had to secure the house once they
got in, Buffkin answered, "Well, me and Kormondy had talked about
it before and I just basically told him when we entered the house
just pull the phone cords and shut the curtains and stuff like
that and so that's basically what happened. When he came in he
ran towards where like you come in the door here, you have got
3 6
the kitchen here, you have got like a little bar thing here. He
ran around that way, snatched out the phone and started shutting
the blinds. When Hazen came inside the door, he went off towards
like where the living room part was and after he got through they
started heading down towards the back going back towards the
bedroom in the house. I don't know what they were doing back
there" (T 929) .
Buffkin heard things being thrown around in the back of the
house. Kormondy and Hazen returned to the front. Kormondy had a
gun in his hand, and asked Mr. Mc.Adams what he used the gun for,
The man first replied "nothing" and then said "target practice".
According to Buffkin, Kormondy then "rubbed the gun up on
the woman's ass and told her she had a cute ass and then he
stated get up and come with me is basically what he told her" (T
931).
Buffkin said taking the woman in the back bedroom was not
part of the original plan (T 931). Mrs. M&dams, Kormondy and
Hazen went down the hall. "The woman was stating, please don't
do this to her and just take whatever you want, don't hurt us and
then the man stated the same thing (T 931). Buffkin stayed in
the front room holding a gun on Mr. McAdams.
Five to fifteen minutes later Kormondy and Hazen brought
back Mrs. McAdams, who was naked at that time. Buffkin figured
that they must have raped her. Mrs. McAdams sat next to Mr.
37
McAdams and reached over to touch him. Kormondy said, "I didn't
tell you to touch him". Mrs. McAdams moved her hand away.
Buffkin got a beer from the icebox, handed it to Mr.
McAdams, and told him to drink. Buffkin figured that under the
circumstances, the man needed a drink. Buffkin then handed his
gun, the . 44, to Hazen, and told Hazen to watch the man. Buffkin
told the woman to get up and come with him. Buffkin said he was
"intending to go ahead and rape the woman. Kormondy wound up
behind them also. Buffkin told Mrs. McAdams, "I don't know what
the other two did to you, but you're going to like what I'm going
to do to you" (T 933).
Buffkin said Kormondy had touched the woman with the gun,
and the woman was cooperating. Buffkin told Mrs. McAdams to lie
down, Kormondy walked in at the time and Buffkin "had sex with
the woman as when Kormondy was getting his penis sucked
otherwise". Kormondy told Mrs. McAdams to keep her hands across
her eyes. Buffkin had reached up to the shower and grabbed a
towel. When the woman dropped it from her mouth, Kormondy told
her he was going to blow her head off. Mrs. McAdams was shaking
and crying.
When Mrs. McAdams dropped Kormondy's penis out of his mouth,
Kormondy told her that if she dropped it out again, he would blow
her head off. Kormondy started going out and threw the towel
over Mrs. McAdams head. Kormondy went back to the front of the
38
house, and Hazen walked in. Hazen tried to hand Buffkin the .44
gun. Buffkin told Hazen to keep the gun.
Buffkin went back up front. At the time, the towel was over
the woman's head. Buffkin ran into the living room and was at
the bar in the kitchen. Buffkin started going through Mrs.
McAdams' purse. Buffkin looked over and saw Kormondy telling the
man to keep his "fucking head down." Buffkin heard a hammer
pulled back and looked at Kormondy and started shaking his head
IlO. Kormondy kept bumping the man on the head. About that time
the gun went off. Kormondy ran out the door and then came back
in. After that Buffkin heard a second shot in the back and
thought the woman had been killed (T 933-937).
Buffkin ran out the door and went to the car. Kormondy and
Hazen also went toward the car. Kormondy handed the gun that
belonged to Mr. McAdams to Buffkin and said, "I didn't mean to
shoot the man", "it happened on accident". Buffkin testified he
then told Kormondy, "well, what is done is done, you can't change
it now. And I fired me up a cigarette and he fired up the
vehicle and we rode off" (T 937).
They then rode around and sold the gun. The buyer of the
gun blinked a light and Buffkin struck a lighter. Buffkin
explained that this was a signal that he wanted some crack.
Kormondy told the buyer of the gun to give him 40 piece of crack
cocaine for the gun. Kormondy then handed the gun to Buffkin.
39
Buffkin asked the buyer to show Buffkin some "40" pieces.
Buffkin took some crack after checking it with his lighter
because "you got bad crack and you got good crack". Buffkin gave
the man the gun and grabbed the "40" and Kormondy drove the car
off. Kormondy smoked all the crack because Buffkin and Hazen
preferred drinking to smoking crack (T 948-949).
On the way to Kormondy's house, Kormondy drove behind a
Winn-Dixie. Buffkin threw out some keys and a wallet.
After getting back to the house, in discussing the sexual
batteries, Buffkin asked Kormondy, "did he shoot off in the
woman". Kormondy said he did not, or not that he was aware of.
Buffkin never asked Kormondy about the gunshot that happened in
the bedroom. Buffkin said he never asked if Mrs. McAdams was
dead, but he assumed that she was. Buffkin said Hazen was in the
back bedroom when the shot went off.
Buffkin saw Hazen with some jewelry after they went back
into Kormondy's house. Kormondy, Buffkin, and Hazen went through
the jewelry. Buffkin decided he did not want any of the jewelry.
After looking at the jewelry, they put it back in the same tan
bag. Hazen took the jewelry outside and put it in Kormondy's
camaro.
Buffkin had a drink. While they were sitting there talking,
Mrs. Kormondy came into the room. The three stopped talking.
Mrs. Kormondy then went back to bed.
40
After getting back to the house, in discussing the sexual
batteries, Buffkin asked Kormondy, "did he shoot off in the
woman". Kormondy said he did not, or not that he was aware of.
Buffkin never asked Kormondy about the gunshot that happened in
the bedroom. Buffkin said he never asked if Mrs. McAdams was
dead, but he assumed that she was.
Buffkin said Hazen was in the back bedroom when the shot
went off.
Buffkin went to bed. Hazen and Kormondy were still sitting
in the kitchen. When Buffkin woke up, Hazen was gone (T 93%
947).
Concerning an agreement with the state, there was the
following colloquy between the prosecutor and Buffkin:
Q: Now, I understand that you made an
agreement with the State that you would
testify truthfully, is that correct?
A: Yes, sir.
Q: And for that agreement it was agreed
that you would not receive the death penalty,
isn't that right?
A: That's correct.
Q: Is it also your understanding the
death penalty would not be pursued because it
was not thought that you were the one that
shot Mr. McAdams?
A: Yes, sir.
Q: Did you shoot Mr. McAdams?
A: No, sir.
4 1
Q: Did you see who shot him?
A: Yes, sir.
Q: And who was that?
A: That was Kormondy (T 946-947).
Buffkin agreed that before any agreement was made, he spoke
to his attorney, Mr. Beck. Buffkin told Beck who was with
Buffkin (T 949-950).
On cross-examination, Buffkin stated that when he escaped
from the road camp, he broke into a trailer. He took a car and
some clothes. He also took some keys. Buffkin stopped by his
ex-girlfriend's house and then went to his cousin Larry's
trailer. Buffkin checked with Larry to see if Buffkin's escape
had been on the news. Buffkin agreed that he and his cousin
Larry, whose last name he did not know, had played "together and
everything ever since we were little kids. Buffkin then went to
a bar and slept in the stolen car behind the bar. The next
morning he got some beer and cigarettes and then stayed behind
the bar. He returned to his cousin Larry's trailer one time
after his first visit (T 952-957).
Buffkin knew he could not stay around his family and decided
to go to Kormondy's house. Buffkin stated he and Kormondy had
been good friends since meeting in jail in 1.990. At the time he
met Kormondy in 1990, Buffkin had already been sentenced to
prison and was in jail waiting to testify against a codefendant
42
l ‘, ’ I
in another case.
Buffkin went to Kormondy's house on Thursday, July 8th, told
Kormondy that Buffkin had escaped, and showed Kormondy the
$30,000 car stolen from the trailer. Kormondy invited Buffkin to
stay.
After planning a second burglary of the trailer Buffkin had
burglarized, Kormondy and Buffkin went back to the trailer on
July 8th and stole a stereo (T 957-962).
On Friday, July 9th, Buffkin, Kormondy and Kormondy's
brothers rode around, and went to "titty bars". Also during the
day on Friday, Buffkin, Kormondy, and a man named "Joe" rode
around the Wedgewood area to buy crack. Kormondy bought some
cocaine and Kormondy and Joe smoked it. As they were riding
around, they mentioned burglarizing a place a home with no one
there. Buffkin said that the conversation about breaking into a
home included Buffkin and Kormondy, but that Joe did not know
what was going on.
Buffkin said that their driving around included the Thousand
Oaks subdivision where the McAdams lived. They stopped at one
point and Joe got out of the car to take a ‘leak". When Joe got
back in the car, Kormondy and Buffkin were "mentioning" breaking
in a house in that subdivision. Joe said he didn't want no part
of it and asked to be dropped off at his trailer. Kormondy and
Buffkin dropped Joe off (T 962-970).
4 3
Buffkin maintained that he met Joe for the first time at
Kormondy's house when Kormondy went to pick Joe up and brought
Joe back. Buffkin said he was at Joe's trailer at the time they
dropped him off at his trailer after Joe said he didn't want to
be part of breaking in a house and later when they picked him to
go out and buy crack (T 981-984).
Buffkin further maintained that he had never left Kormondy's
house and came back to the house in a blue truck (T 982).
Buffkin described Joe as about six foot tall and weighing
190 pounds (T 1002). Joey Tarcus was then brought into the
courtroom and Buffkin identified him as Joe (T 1003). During
the trial, Allen Cotton, an investigator with the State
Attorney's Office, testified that Tarcus was six-foot four and
one-half inches tall and weighed 260 pounds (T 1028-1029).
After dropping off Joe, Kormondy and Buffkin then broke into
James Chancy's home and stole rings, whiskey, stereo equipment,
and the . 44 Charter Arms Bulldog firearm. They then went back,
picked up Joe, sold the stolen stereo equipment, and went to a
crack dealer in the Wedgewood area (T 971-972). Kormondy and Joe
smoked the "crack" (T 984).
The next morning Shane and Kay Kormondy stated they were
going to a family reunion. While they were gone, Buffkin drank
some Crown Royal whiskey that he and Kormondy had stolen from the
Chaney home. After about two hours Shane and Kay Kormondy
44
returned with Hazen. Buffkin had never met Hazen before (T 985-
986) s Buffkin stated he had a fifth earlier that day and a
littler more when he got back to the house. Buffkin said he
loved to drink, that according to other people he had a drinking
problem, but that he could handle his drinking, so that you
couldn't tell he had been drinking at the time they left the
house (T 918-919). Buffkin characterized the others as having
"drank a little bit" and not into drinking as heavy as Buffkin (T
921).
Concerning Kormondy and Buffkin's conversation about
breaking into a home, there was the following colloquy between
the defense attorney and Buffkin:
Q: At the time that you had this conversation
with Mr. Kormondy about breaking into a house
with someone in it, was Mr. Hazen privy to
that conversation, was he present?
A: No, sir.
Q: Did you see or hear Mr. Kormondy discuss
that idea with Mr. Hazen?
A: Not that I was aware of, no, sir (T 987-
988).
Buffkin and Kormondy had a conversation in the kitchen about
breaking into a house with someone in it. Concerning Hazen's
access to this conversation, Buffkin responded as follows to
defense counsel's questions:
Q: Okay, a the time that you had the
conversation with Shane in the kitchen was
James Hazen privy to that conversation? Was
4 5
he in the kitchen?
A: No sir, he was in the living room sitting
on the couch or in that chair.
Q: Were you and Shane talking loud enough for
him to have overheard you in the living room?
A: No sir. There was no way he could have
heard it because the TV was on and they were
in there talking (T 991).
As to whether or not Hazen could see the gun Buffkin took
out to the car, Buffkin testified:
Q: When you shoved it [the gun] in your
britches, was Mr. Hazen in a position to see
you do that?
A: Never did, sir.
Q: When you took it out in the car, could he
have seen it at that point?
A: No, sir, he couldn't have. There was no
way he could have (T 992).
Buffkin further testified:
Q [defense attorney]: Now, you indicated that
-- when you all are riding around looking for
or headed to Thousand Oaks Subdivision, did
you or Mr. Kormondy mention to Mr. Hazen that
you were going to break into a house?
A: Never did, no, sir (T 998).
* . .
Q [prosecutor]: Now, after you got in the car
with Kormondy and Hazen, you had the gun when
you were driving around you said later that
after driving around quite awhile you went to
the subdivision of Thousand Oaks?
A: Yes, sir.
46
Q: During this time did you talk when you
were seated in the front of the car in the
passenger's seat and Kormondy was driving and
Hazen was in the back seat, did you talk
about what you and Kormondy were going to do?
A: Yes, sir, we did.
Q: And what did you talk about?
A: About burglarizing the house with someone
in it.
Q: Did you talk about who was going to go in
with the gun?
A: Well, I had basically already had told
them that I'll go in with the gun. I don't
know if Hazen heard this or whatever because
when we were sitting in the car the radio was
playing too (T 1008).
While Buffkin said he was not exactly the person who planned
the crime, "We had just, we mentioned it, both of us, me and
Kormondy did about hitting a house with someone in it" (T 999).
Buffkin further stated he was told that the reason the death
penalty was not pursued against him was that he didn't actually
shoot Mr. McAdams (T 1000). Buffkin agreed that he had six to
eight prior convictions for felonies or crimes of dishonesty (T
1001). These convictions were for burglary of an auto and petty
theft in 1993, two grand thefts and a burglary in 1990, and two
grand thefts and a burglary in 1988 and 1989 (T 1012).
Kevin Beck, Curtis Buffkin's attorney, testified that he had
negotiated a plea agreement with the state on behalf of Buffkin.
The agreement was that the state would not pursue the death
penalty if Buffkin would testify truthfully. Beck said that it
47
was his understanding that one of the facts that led to the
agreement was the state's determination that Buffkin was not the
triggerman. Beck testified that Buffkin was told he was facing
the death penalty, that his status as a nontriggerman would
affect the State's ability to impose the death penalty, and that
he was given an opportunity to enter a plea in return for
truthful testimony in part because he was not the triggerman (T
1017).
Prior to this agreement, Buffkin told Beck that Shane
Kormondy and James Hazen were with Buffkin when the crime was
committed (T 1016).
Ms. McAdams was recalled as a witness for the State (T
1030). When asked to describe the physical build, height, and
approximate weight of the men who assaulted her and her husband,
Mrs. McAdams replied, "Okay, Mr. Buffkin was approximately, I'd
swI five eight, five nine, a little bit heavier build than the
other two; I would say medium build. The other two were -- Mr.
Kormondy was slightly taller than Mr. Hazen, but they were both
very slim built" (T 1030).
Appellant immediately moved for a mistrial, stating, "Your
Honorl at this time I move for a mistrial. This lady has
basically said that she could not identify Mr. Hazen as the
person who assaulted her. Now she's coming into court and
describing Mr. Hazen as the person that assaulted her. I move
48
for a mistrial" (T 1031). The motion was denied (T 1031).
Appellant then asked for a curative instruction (T 1032).
Appellant asked the trial judge to "tell them [the jury] to
disregard the statement that Mr. Hazen was one of the men that
assaulted her (T 1032-1033). After further questioning by
the state, the trial judge advised the jury, "All right. Ladies
and gentlemen, Mrs. McAdams has previously testified that she
could not identify Mr. Hazen, from her prior testimony. Today
she has described an individual and made reference to Mr. Hazen,
and I want you to clearly understand that you're not to take the
description that she gave of Mr. Hazen today, describing him
today, as being any indication that she was in a position to
identify him at the time that these events occurred, and you're
not to take her testimony as being an identification of Mr. Hazen
at the time that these events occurred. Her testimony was only
to describe what she believed to be the physical appearance of
those who she alleges assaulted her at the time that the events
occurred. Do all of you clearly understand that?" (T 1035-1036).
Appellant then renewed his motion for mistrial which was
denied (T 1036).
The state rested (T 1040).
Appellant's motion for a judgment of acquittal on the
grounds that the state failed to establish a prima facie case of
guilt as to each count was denied (T 1041).
49
Appellant James Hazen testified in his behalf that he was
not present when the crimes against the McAdams' were committed.
Hazen was visiting the area from Pancho City, Oklahoma with
his foster parents, Mr. and Mrs. Mike and Sam Karl. They were
staying on a houseboat in Daphne, Alabama.
Kormondy was Sam Karl's nephew. Hazen had known Kormondy
since Hazen was seven years old, and considered Kormondy a close
friend and family member. Shane Kormondy was at the houseboat
almost every day visiting, and sometimes brought his wife Kay (T
1043-1046).
Hazen said he was a part of a Kormondy family reunion in
Cantonment held in July. After the reunion, Hazen went with
Kormondy back to Kormondy's house in Pensacola. They were driven
by Shane's mother, Lane. Shane Kormondy's car was at Kormondy's
house.
At that time, which was early afternoon, Hazen met Darrell
Buffkin at Kormondy's house. Darrell was introduced to Hazen as
"Curtis". Kormondy did not tell Hazen at the time that Buffkin
was an escapee from a road camp. Hazen said Kay Kormondy didn't
tell him, and that he and Kay Kormondy didn't speak that much
because they didn't get along. He attributed this to the fact
that Kay's family had disapproved of Kay's marriage to Shane, and
that Hazen was part of Shane's family (T 1047-1049).
Hazen and Buffkin sat around for an hour or hour and one-
50
half getting to know each other (T 1049). Hazen and Buffkin
dumped out a bag of pennies to get some money to buy medicine for
Kay Kormondy. Hazen, Buffkin, and Kormondy went in Kormondy's
chamber and got the medicine. They were gone for about twenty
minutes.
After they got back, they sat around, drank mixed drinks,
and talked. They discussed different penitentiaries they had
been in and the different things they had seen in them (T 1050).
They then left the house again, and rode around for about an
hour and a half. During this time, Kormondy bought some "crack"
and smoked it. Hazen and Buffkin did not smoke any (T 1050-
1051).
They arrived back at the house about six in the afternoon.
They ate, drank, and watched television. During this time, a man
and his girlfriend stopped by and were visiting (T 1051-1052).
Kormondy came into the living room where Hazen was watching
television, talking to the visitors and Kay, when Kormondy told
Hazen to come on, they were going. Hazen went out to the car and
was surprised to find that nobody was behind him, so he sat in
the car and waited for Kormondy and Buffkin to come out (T 1053).
Kormondy and Buffkin got into the car. They left the
Kormondy house, drove several miles, and went to a trailer and
picked up someone that Hazen did not know. This person was
waiting at the gate.
5 1
Kormondy was driving, Buffkin was in the front passenger
seat, Hazen was seated in the middle of the rear seat because
there was a child's car seat to his left, and the person they
picked up was sitting to Hazen's right. The person said, "Let's
go buy some stuff". They then drove to a neighborhood where
Kormondy and this other person bought crack. They went to a
little field where Shane and this other person smoked the crack.
During this time, Buffkin and Hazen drank beer and mixed drinks
(T 1053-1057).
Hazen testified that it was apparent that Buffkin and
Kormondy knew this person from before. They were talking about
people Hazen did not know, and for some time the conversation
really did not involve Hazen. As Hazen testified, "it was an A,
B, and C conversation and I was 2. I was no -- nothing to do
with that conversation at all (T 1054-1055).
Hazen said after the crack was smoked, they would ask Hazen
whether he wanted to do something exciting, just mellow out, what
did he want to do? Hazen said he just wanted to have a little
fun and relax. After listening to the three others for awhile,
talking about someone they knew and whether they should go visit
that person, Hazen was getting drunk and tired and asked if they
would take him home. Hazen estimated it to be about twelve or
twelve-thirty at that time. After being asked what happened
after Hazen asked to be dropped off, Hazen replied, "This other
52
gentleman said well, run me by my house real quick and drop me
off, and y'all can come back later. And so we went and took him
to his trailer, and they run home, dropped me off" (T 1057-1058).
The prosecutor's objection to the hearsay and motion to strike
the statement "of this anonymous person" was sustained (T 1058).
Kormondy dropped Hazen off at Kormondy's house. "They just
said well, whatever. Have it your way. You know, if you don't
want to -- if you're scared to play, you know, stay home" (T
1058-1059). Kormondy and Buffkin left the way they had come.
Hazen went to go in the house but the door was locked.
Hazen decided not to wake up Kay Kormondy and their child because
Kay had been sick earlier in the day and he didn't want to bother
her. It was a nice night, a little warm. Hazen played with a
hot plate attached to a barbecue grill and also dozed off a
little.
Hazen estimated it was an hour or more before Buffkin and
Kormondy returned. (T 1059-1061). Buffkin came around he parked
car first and said, "well, if I didn't do it like that, I was
going to have to shoot him anyhow. Kormondy appeared scared and
Buffkin "was emotional like he was just freaked out" (T 1062).
Hazen went into the living room of the house and lay down on
the couch. Kormondy and Buffkin milled around. One of the two,
Hazen believed it was Buffkin, said, "well, it's done. There's
nothing that can be done about it" (T 1063).
53
Hazen was curious about what happened and figured it had
something to do with the rough black neighborhood where "crack"
was sold that they had been frequenting earlier.
After they had been in the house about ten minutes, Kay
Kormondy got up briefly, looked in the living room, and turned
around and went right back to bed. At the time, Hazen was lying
on the couch, about to go to sleep; Buffkin was shying away from
Kay and trying not to look at her, and Kormondy just looked at
her and continued his conversation (T 1063-1064).
That morning Kay Kormondy woke Hazen up at about seventhirty
in the morning to get a phone call. Hazen talked to Shane
Kormondy's mother, Lane Barrett, on the phone. Hazen agreed to
go out on a boat with her, his mom (stepmother Sam Karl), and
some other people.
Hazen got in the car with Kay to go to a store to meet Lane
Barrett. Hazen stated that Kay did not show him any jewelry that
morning. Kay did ask Hazen what they had done last night, and
Hazen told her they had ridden around and picked up some guy, and
that Shane and the guy had some smoke. Other than that, Kay
talked about how she was going to kick Shane Kormondy out that
day (T 1065-1067). Kay asked Hazen if he had been with them and
robbed anybody, Hazen told her no, that he was not with them,
that if they did go rob somebody, it was when they dropped him
off. Hazen also told her that he'd had enough to drink that
54
night, but he was not drunk (T
Concerning Ms. McAdams earlier testimony that she had seen
Hazen staring at her at a court appearance, Hazen stated that he
had not been staring at her, that he may have looked in that
direction, that he didn't know her, and didn't look directly at
her. Hazen also said the courtroom was crowded and there were
not may seats available. Hazen stated that the day Ms. McAdams
got on the stand and testified at the trial was the first day
that he knew who she was or what she looked like (T 1068-1069).
Hazen further testified that during the jury selection
process in the case, he had been concerned about a Ms. McAdams
who was listed on the jury venire. Hazen stated, "I thought it
was the victim in this case. I thought -- I thought maybe the
State had put her there to try to get an ID or something of me.
I didn't know what -- what the woman was doing there" (T 1069; T
1071).
Hazen testified he had been convicted of a crime involving
dishonesty or a felony twice (T 1072).
The state began it's cross-examination by asking, "Mr.
Hazen, you're a convicted felon?" (T 1073). The state then
brought out that Kormondy and Buffkin were also convicted felons
and that Kormondy and Hazen were close friends. In asking about
Buffkin, the prosecutor asked, "And Mr. Buffkin is a convicted
felon?" to which Hazen answered, "I know that now". When the
55
prosecutor then said, "Well, I thought you said y'all sat around
and we talked about the penitentiary?, Hazen answered, "Well, I
knew it then but, I mean, I didn't -- right when I first met him,
I did not know that. It was probably several hours later". The
prosecutor then asked Hazen, "Well, what are you trying to say"
(T 1072). The trial judge overruled appellant's objection to the
form of the question and that Hazen had already said what he
meant to say. (T 1073). The prosecutor then again asked "What
are you trying--?," at which point Hazen interjected, "It was
several hours later. If you're trying to say did I know it right
at first, no. I didn't know it for several hours -- several
hours". The prosecutor then argued, ‘I didn't ask you when you
knew it. I just said do you know it?, at which point Hazen
answered "yes" (T 1073-1074). In point of fact, the prosecutor's
exact original question concerning Buffkin was, "And Mr. Buffkin
is a convicted felon? (T 1073).
Hazen testified he was sitting in his backyard in Pancho
City, Oklahoma on July 19, 1993 when he was arrested. He was
shocked when he was arrested. Hazen was not as shocked to find
out they were arresting Kormondy and Buffkin. He already knew
Kormondy had been arrested because a police officer told him,
"they already got one of y'all" (T 1074). Hazen said Kormondy
did not call him from the jail nor did anybody else call to tell
him to watch out because the police were coming. Hazen said his
56
address in Pancho City was 3701 Larkspur and that there were two
phone numbers at the residence, (405) 765-3701 and (405) 765-3700
(T 1075).
Hazen said that when he appeared in Courtroom 401 for the
previously referenced court appearance that he did not see Ms.
McAdams. Hazen said he sat in the jury box, but not in the spot
that Ms. McAdams had said he was seated. Hazen said when he
first went in the courtroom, he had to pay attention to where he
was going so he wouldn't run into the jury box. He then sat down
and started looking around to see where his family was at. It
did not take him long to find Shane's family, Sam Karl, and
Hazen's girlfriend in the courtroom -- they were sitting directly
behind him.
Hazen agreed that if Ms. McAdams was seated in the courtroom
where she said, that if Hazen looked in his family's direction,
he would not have been looking in the direction in which Ms.
McAdams was seated (T 1076-1079).
There was then the following colloquy between the prosecutor
and Hazen:
Q: So when Mrs. McAdams said that you looked at
her and recognized her, your testimony is that you
were not looking at her or in her direction and looking
at someone else; you just don't recall it at all?
A: If I looked at her, I didn't recognize her. I
didn't know she was sitting there. I was just
looking for my family.
Q: You never looked at her, locked eyes and looked
57
away?
A: Just like I look at that gentleman there every
once in a while, I don't lock, you know, and just
stare. I would just -- you know.
Q: You didn't do that over and over again?
A: No, I did not.
Q: You didn't look at her and recognize her
because you'd been in her home?
A: No, I did not (T 1079-1080).
Hazen agreed that he told his counsel that he saw a woman
during jury selection named Mrs. McAdams and he wondered if that
was Cecilia McAdams. The prosecutor then inquired of appellant
as to what documents he had seen concerning the case. Hazen
stated he had seen Buffkin's deposition about a week before,
Officer Allen Cotton's deposition and another officer's
deposition. Hazen stated he had not seen the deposition of Mrs.
McAdams or the police reports. The prosecutor then pursued the
matter as follows:
Q: (Prosecutor): From reading those
depositions, sir, it should have been very
clear to you, shouldn't it, that Cecilia
McAdams was not a middle-aged woman with
glasses, as the woman appeared in the jury
pool?
A (Hazen): If I recall, there wasn't nothing
directly said about what she looked like or
nothing in there.
Q: You didn't know if she was eligible to be
your mother or your grandmother; is that what
you're trying to say?
5 8
A: I've never seen this woman. I don't know
how old she was. I ain't never seen her. I
don't know how tall, how wide, how nothing.
I do not know the woman. I've never seen the
woman until yesterday.
Q: Are you saying you had no idea of her age
at all?
A: No.
Q: Whether she was young, middle-aged, or
old?
A: I knew they were thirty-something, but I
didn't know anything more than that?
Q: So you did know she was in her 3Os,
probably?
A: Yeah, late 30s or early 30s. I had heard
something on TV.
Q: Are you trying to tell this jury that that
Mrs. McAdams that was seated, I think, about
on the fourth row back here towards the end,
with the glasses, that middle-aged woman was
in her 3Os? Are you just saying this, sir,
because you want to throw the jury off,
thinking that you really didn't recognize
Mrs. McAdams, and so you fabricated this?
A: No, I did not fabricate this, and I am not
trying to throw these people off.
Q: Can you explain, sir, how if you thought
from reading the depositions that Mrs.
McAdams was in her 3Os, that you thought that
that was the woman, that middle-aged woman,
Mrs. McAdams, seated back here? Tell us.
Convince us, if you will, that you weren't
trying to throw this jury off.
A: I heard the name McAdams. I don't know
nothing more than that.
Q: Oh, now you're saying you didn't see her?
59
a” , l ‘ :
A: I heard the name McAdams and I started
wondering. I started looking for this lady
to see if I could find her. Something come
up. She stood up or she -- somebody moved or
something happened. Anyhow, she said her
name, and I asked my attorney is that the
woman that's the victim in this case? And he
--
Q: So you did see her?
A: I seen her after she stood up, yes.
Q: All right. So you're trying to convince
this jury that you really thought that
middle-aged woman might have been the 30-
year-old woman who is the victim in this
case?
Mr. Albritton (Defense Attorney): Your Honor,
he's asked that question three or four times.
It's being argumentative now.
The Court: Overruled.
Q: (prosecutor): That's your testimony, your
sworn testimony?
A: I don't know how old that woman was.
Q: Sir?
A: I'm not an age expert here.
Q: No, you've not been qualified as an
expert, sir (T 1082-1084)
Hazen agreed that the last time he went riding with Kormondy
and Buffkin that Hazen was concerned that Kormondy and Buffkin
were going to commit a crime but nothing happened. As Kormondy
and Buffkin "started talking a little deeper", Hazen asked them
to take him home.
Hazen agreed with the prosecutor that at that point they
60
hadn't committed any crimes and so Hazen wasn't that worried
about it. The prosecutor then turned his question around and
suggested that Hazen did not consider smoking crack a crime.
Hazen said he did consider smoking crack a crime, but that they
were grown men and he couldn't stop them. Hazen said while he
did not distance himself from them when they were doing crack, he
kept to his own self drinking beer and mixed drinks (T 1085-
1087).
Hazen testified he never saw a gun, he didn't hear any talk
about the robbery, and he didn't hear any talk about going to
pick a house out (T 1092).
In response to a question from the prosecutor about picking
up two men, Hazen said he did not know about two men. He did
know that they picked up one person at his trailer. Hazen
explained that he could not retrace the route from Kormondy's
house to the trailer because of his unfamiliarity with the
Pensacola area (T 1092-1093; T 1105-1106). Hazen believed that
after they dropped Hazen off at Kormondy's house, Kormondy and
Buffkin may have gone to pick up the person at the trailer. This
was based on hearing Kormondy or Buffkin telling the person they
would be back later (T 1094-1095). Hazen did not remember the
name of the person although he thought it might have been used
once or twice in conversation (T 1093-1094). Hazen described the
person as a little bigger than Hazen with light brown shoulder-
61
length hair (T 1094).
When the prosecutor questioned Hazen about why he didn't go
back to Kormondy to get the key to the house after Hazen found
out it was locked, Hazen replied, "I figured I'd be able to get
in the house when they dropped me off. I turned around -- when
the door was locked, I turned around to ask Shane [Kormondy] for
the keys, and he was already gone too far away that I could not
get his attention to get him to come back" (T 1101).
Hazen stated that when Kormondy and Buffkin returned to the
house he did not ask them about what had happened. He had
already been to the neighborhood where they bought "crack' and
was skeptical of it. Hazen said if they had gone back to the
neighborhood and somebody tried to rob them or shoot them, Hazen
did not want to know anything about it (T 1099-1101). Hazen,
when asked by the prosecutor if Hazen would care if they
[Kormondy and Buffkin] had killed anybody, responded, "Yes, I
would, very much so" (T 1102).
Hazen said he did not tell Kay Kormondy that they [Kormondy
and Buffkin] robbed someone, and that he told her that he didn't
know what they did. Hazen believed that his words to Kay
Kormondy were, "yeah, I guess they robbed somebody". Hazen said
he volunteered to Kay Kormondy he had been drinking and Kay knew
he had been drinking. Hazen further said that Kay said that she
was going to throw Shane Kormondy out of the house. She told him
62
this in the car and she also stated the evening before in front
of her Hazen, her friend and his wife that she would never
consider Kormondy her husband (T 1087-1091).
When confronted with Buffkin's testimony that Hazen was
involved in the commission for he crime against he McAdams, Hazen
stated that Buffkin's testimony was not true (T 1102).
The prosecutor then began questioning of Hazen, intimating a
prosecution theory that Hazen had been pulled into something
Hazen had never planned or intended, and eliciting ambiguous
testimony from Hazen concerning hypothetical situations:
Q (prosecutor): Sir, is it just a matter that
you got pulled into something, you're from
out of town, got in the car with them, didn't
really know what they had in mind, pulled up
to a neighborhood, they want to go in a house
and break in , and you just sort of went
along not really knowing what was going to
happen? Really, wasn't it a case of that?
A (Hazen): No, it was not.
Q: Isn't it really a case, sir, of
approaching the house and getting in and
finding out that there's more that they had
in mind, that they wanted to rob somebody,
and then you got scared, and you didn't
really want to be involved in it?
A: No.
Q (prosecutor): Isn't it a case, sir, of once
being in the house, that they began to rape a
woman, and you didn't want to have any part
of that, and you were scared, and you just
don't want to tell us that you were there?
A (Hazen): If I was
do with that situat
something to
Id have been
gonna have
ion, it wou
63
done a lot different and --
Q: You'd have killed Mrs. McAdams, for one
thing.
A: If somebody --
Q: Is that right?
A: Yeah, if I --
Q: Is that right? Is that right?
A: If I would have been there, that's what
would have happened, yes.
Q: You would have made sure she was dead?
A: If that's what -- if I was gonna do that,
that's what would have to have happened, yes.
Q: Did it ever cross your mind, sir, that if
you'd been there, sir, the whole point of
this is, you don't kill somebody, that you
turn around and walk out or you tell the
others to stop? Did it ever cross your mind
that's the right answer, sir?
A: If I was there, that's what I would have
done.
Q: You just said if you were there, you would
have killed her?
A: If I could have stopped it, I would have
(T 1103-1104).
Joseph Tarcus testified for the defense. Mr. Tarcus stated
he had known Shane Kormondy his entire life and had been with Mr.
Buffkin for about five hours. Tarcus stated that when he first
met Buffkin, it was when Kormondy and Buffkin came to Tarcus'
home in Kormondy's chamber. It was in July, before the crime
against the McAdams. Tarcus declined their invitation to go
64
riding around because he was working on his car. Tarcus stated
that he would be over to the Kormondy house later (T 1106-1109).
The following afternoon Tarcus went to the Kormondy house.
Buffkin was not at the Kormondy house when Tarcus arrived.
Buffkin came to the Kormondy house about an hour later. Buffkin
arrived in a large, blue pick-up truck driven by a male. The
male sat in the truck for about five minutes and then drove away
(T 1109-1111).
Kormondy, Buffkin, and Tarcus then went out to the Wedgewood
area and bought some crack (T 1111). During this time, Buffkin
said that he wanted a handgun because he was not going back to
jail. When asked if Buffkin said how a handgun was going to keep
him out of jail, Tarcus replied, "Yeah. He'd [Buffkin] shoot him
in the head. That's his [Buffkin's] exact words." (T 1112).
Tarcus said they did not drive out near the Thousand Oaks
subdivision; that they were in Wedgewood and behind Pine Forest
High School (T 1112).
When asked if he ever got out in front of an apartment
complex and urinated, Tarcus said, "Probably. I know there was
one on Highway 29. It was not an apartment complex. It's a
truck stop. It's a lounge and -- let me think of the name of it.
It's right across the street from Groovin Noovin's". Tarcus then
agreed that it was not at an apartment complex (T 1113).
Tarcus said he was with Kormondy and Buffkin until about
65
9:30 or 1O:OO in the evening at the latest. After Buffkin said
he was an escaped convict, Tarcus had them drop him off at his
house (T 1113).
Tarcus did not see Kormondy and Buffkin again, nor did he go
out with them again to buy and smoke crack (T 1113-1114).
Tarcus testified on cross-examination that he did not
participate in the crimes against the McAdams (T 1114).
Mr. Bobby Lee Prince testified as a defense witness. Prince
lived at 651 Childers Street, Apartment 10. Prince stated that
the Thousand Oaks Subdivision was approximately a half a mile
north of his apartment complex (T 1115-1117). Prince elaborated
that from his apartment complex you would take of a right onto
Chemstrand and the first road on your left would be the Thousand
Oaks Subdivision (T 1129). Prince marked the locations on
Defense Exhibits l-A and l-B (T 1128-1129).
Prince testified that on the Friday before July 11, 1993 he
heard a suspicious car pull up about 9:30 in the evening. Prince
was very particular in his description of the car, noting that it
was a gray 2-28 two-door with mags, a muscle man and woman in the
back window, a black spoiler on the front of the car, and a 2-28
on the emblem in the center front of the car. Prince identified
State's Exhibits 18 and 20 [previously identified as Kormondy's
car] as the car that he saw pull up. Prince was paying
particular attention because they had been broken into about a
66
month before that, and the car sounded unusual to him for the
neighborhood (T 1118-1120).
After about five minutes, the dome light of the car came on
for about one minute. Prince observed three males get out of the
car. They exited the car and one of the males urinated in the
bushes. The driver had long, blondish hair, was skinny compared
to the other two, and was wearing a ball cap. The front seat
passenger and the back seat passenger had blackish-brownish short
hair. The back passenger was a little shorter but bigger then
the front passenger (T 1120-1121). They left the car and headed
in the direction of the Thousand Oaks Subdivision. About fortyfive
minutes later Prince saw the three males return. The three
males at first walked past their car until another car that had
pulled into the apartment complex parked and the occupant went
into her apartment. At that point, the three males got in their
car and took off. During the time the males were gone, Prince
wrote down the tag number of the car. However, by Monday when he
realized its possible relevance, he had thrown it away (T 1121-
1123; T 1125).
On Saturday, while cooking out with his wife and son, Prince
thought he saw the car drive by again; however he could not be
sure it was the same car (T 1126-1127).
The Prince's were away from their apartment most of Sunday.
On Monday, they saw law enforcement personnel and canines walking
6 7
all around. They learned from a neighbor there had been a murder
in the area. Mr. Prince advised a detective on Monday about the
car he had seen and specifically told her that he first saw the
car outside his apartment complex on Friday night (T 1125) q
On cross-examination, Prince looked at State's Exhibits 15
[a picture of Kormondy], 16 [a picture of Buffkin], and State's
Exhibit 17 [ a picture of Hazen]. Prince testified that sizewise
Kormondy's picture would match up with the driver; sizewise
and because of the short hair Buffkin's picture would match
up with the back-seat passenger; and body-wise and from what his
hair looked like Hazen's picture would match the person in the
front passenger seat (T 1130). Prince agreed he could not
identify the individuals by their faces but was testifying to the
similarity in build (T 1132).
Prince stated that none of the males he saw weighed 260
pounds and were six-foot five inches.
The state suggested to Prince that it was possible he saw
the three men on Saturday night. Mr. Prince at first responded
by saying that "I'm more sure probably that it was Friday night
but it could have been Saturday night" (T 1131). Prince stated
that his wife had suggested to him it was Saturday night but that
Prince was convinced it was Friday (T 1131).
On re-direct, Prince stated that he had told the police the
first saw the car on Friday night, that in a previous
68
conversation with defense counsel and at a deposition Prince had
stated it was Friday night, that he had always maintained that it
was Friday night, and that he had testified a few minutes before
that it was Friday night. Prince stated that at all these times
he was convinced it was Friday when he observed Kormondy's car in
his apartment complex parking lot (T 1132-1133).
The defense rested (T 1134).
Susan Lewis, an employee of Southern Bell Telephone Company,
testified that on July 19, 1993 at 6:17 p.m., a phone call was
made from the residence of Vernon Holderfield, 581 Neal Road,
Cantonment to 405-765-3700 in Ponce City, Oklahoma. The
prosecutor represented to defense counsel that Kormondy's brother
lived at 581 Neal Road (T 1136-1139).
Barbara White, a lieutenant with the Pancho City, Oklahoma
Police Department, executed an arrest warrant against Hazen at
about 8:45 p.m. at 3701 Larkspur Drive in Pancho City. Neither
White, or anyone in her presence, told Hazen that anyone else had
been arrested (T 1140-1141).
On cross-examination White stated that there were other
officers there when the warrant was served, that Lieutenant Helms
actually executed the arrest warrant, and that she was present.
White stated that Hazen was transported to the jail by Patrolman
Jim Sharon (T 1141-1142).
The state rested. Appellant made a motion for a judgment of
69
acquittal which was denied (T1146-1147).
The jury returned a verdict finding appellant guilty as
charged on all counts (T 1320).
During the penalty phase the state presented evidence that
appellant had been convicted of the crimes against the McAdams (T
1378-1380).
The state presented Arlene Fragale, a victim-witness
coordinator employed with the State Attorney's Office. Over
appellant's objection Fragale testified that in a conversation
with the prosecutor Mrs. Kormondy related the following: that in
a conversation with her husband Mr. Kormondy, before the McAdams'
crimes, that Mr. Kormondy said Buffkin and Hazen were going with
him (T 1380-1381). During cross-examination there was the
following colloquy:
Q(Defense Attorney): Ms. Kormondy did not
tell you whether or not Mr. Hazen knew
anything about their going to the house, did
she?
A (Fragale) : She didn't say.
Q: She simply said that her husband told her
that?
A: Her husband said that those three men were
going to leave that night (T 1381).
Officer Allen Cotton testified for the state that the reason
he applied for a warrant against Hazen was due to statements made
by Kormondy. Kormondy confessed to the crime. In Kormondy's
initial statement of June 19, 1993 Kormondy named Hazen as being
70
the third participant. Kormondy originally said that Buffkin
killed Mr. McAdams and that Hazen was the first to rape Mrs.
McAdams. On cross-examination, Cotton stated that Kormondy said
Hazen was in another room when Mr. McAdams was shot. There was
also the following colloquy:
Q (defense attorney): From Mr. Kormondy's
statement or from Mr. Buffkin's statement
there is no evidence that Mr. Hazen planned
this robbery or planned to be involved in a
murder, is there? . . . Mr. Buffkin's or Mr.
Kormondy's.
A (Cotton) : He [Hazen] was involved in part
of the planning of the robbery. So far as
the murder itself, no sir.
Q: Mr. Buffkin or Mr. Kormondy's.
A: He was involved in part of the planning of
the robbery. So far as the murder itself,
noI sir.
Q: In what statement was this?
A: That is in the statement of Mr. Buffkin
where he states that the defendant had on
gloves and a mask -- I say gloves, it was
socks and a mask when they left the vehicle.
Q: When they left the vehicle, I understand
that.
A: Correct.
Q: Other than that?
A: Other than that, no, sir.
Q: That he was involved at the house, there's
no evidence that he was involved at the house
with Kormondy and Buffkin in planning the
robbery?
71
A: Where are you referring at, Mr.
Allbritton, so far as the planning goes at
the scene or at the --
Q: I'm talking prior now at Mr. Kormondy's
house.
A: No, sir (T 1388-1389)
Sam Karl, who had taken appellant in as a child and who
appellant considered his mother, testified. Karl said she first
saw Hazen when he was eight or nine and lived in the same
neighborhood that she did with his adoptive parents, the
McKissics. Hazen and his brother were taken away from his
biological parents and put up for adoption because his mother was
unfit. Apparently the McKissics adopted Hazen and his brother
Bobby at a time they thought they could not be biological
parents. But they later had four children of their own, and
became abusive to Hazen and his brother Bobby. Karl often fed
Hazen because he was no allowed to go home to the McKissicks
unless he had earned some money that day to eat (T 1390-1392).
Karl said the McKissics natural children and Hazen and Bobby
were treated very differently. The McKissics would pay for the
four children to go to the local pool; Hazen and Bobby had to
walk ten miles to the free pool if they wanted to swim. Hazen
didn't have much at all in the way of food or clothing. Hazen
started mowing lawns in the neighborhood when he was eight OK
nine, and then took the money to the McKissicks so they would
feed and clothe him. Bobby, Hazen's younger brother, withdrew
7 2
into a shell and was placed in a home. Karl would take Hazen
there on Christmas so he could visit Bobby (T 1393-1394).
Karl was Shane Kormondy's aunt. Because of this, Hazen and
Kormondy grew up playing together and considered each other
family. Hazen began calling Karl mom when Hazen was about ten
years old (T 1394-1395).
At seventeen Hazen was arrested for a burglary. He and two
others broke into a business and stole two cases of beer. Hazen
was in the car during the burglary. Hazen was placed on
probation for the incident. Until that time, Hazen had no prior
arrests or any type of record (T 1395-1396). From nine until
seventeen Karl's impression was that Hazen was a very respectful,
loving child (T 1396).
Karl related an incident where she had called Hazen at the
McKissick's home to see if Hazen could go to Whitewater with her
and some children. Hazen was handing the phone to Mrs. McKissick
and Karl overheard McKissick saying to Hazen that he was, "an
illegitimate little bastard and you're no good and you're a liar
and don't ask me for a damn thing because you're not going to get
it." At that point Karl said something on the phone, and Mrs.
McKissick apologized to Karl saying she didn't mean for Karl to
hear that(T 1396-1398.)
Hazen was then readopted by an unmarried gay man named Jerry
Hazen. The McKissics had told appellant that he either go with
7 3
this man, or go behind bars until Hazen was eighteen. Three
weeks after the adoption Jerry Hazen made sexual advances toward
Hazen. It was after that Hazen got into his first trouble -- the
earlier referenced burglary. After a subsequent sexual advance,
Hazen hit Jerry Hazen in the nose. Hazen was arrested for
violation of the burglary probation and sentenced to prison.
Hazen subsequently escaped and was re-arrested and sentenced on
the escape. Hazen was released in 1992 or 1993. He had obtained
his GED while in prison. When he was released, he began working
two jobs to pay of the fines and restitution. He lived with
Karl. Hazen was putting most of his earnings to paying off the
fines; in fact one county was paid off and another was almost
paid (T 1398-1403).
Hazen was in Escambia County in July 93 on vacation with Mr.
and Mrs. Karl. They were staying on their houseboat in Alabama
(T 1403-1404).
During cross-examination, the prosecutor noted that except
for summers Karl worked full-time (T 1405-1407). The prosecutor
then inquired how she could work full-time and spend so much time
with Hazen (T 1407). The prosecutor questioned Karl about the
McKissicks giving up Hazen after all those years of abuse,
questioning Karl as to why the Oklahoma authorities didn't
intervene (T 1407-1409). The prosecutor compared the McKissicks
taking Hazen's money writh earl ier testimony that Hazen gave his
74
money to Karl. Karl clarified that she handled Hazen's money
because she bought the money orders to pay Hazen's fines (T
1409). The prosecutor then accused Karl of lying in his office
about her previous knowledge of a prior burglary (the burglary
where the beer was taken) committed by Hazen. Karl responded
that she had told the prosecutor not only about the burglary, but
had given the prosecutor the name of the place where it occurred.
The prosecutor further accused the witness of denying knowledge
about Hazen's escape. The prosecutor then asked the witness if
the reason Hazen was at her house so much was because in
actuality Karl had no discipline whatsoever, that she enticed him
down there, and that she profited financially by his presence.
The prosecutor asked Karl if she received state aid for taking
care of Hazen; insinuating that she did. When Karl indicated
that she took care of a lot a abused children as a foster parent,
that she did get aid for some, and that she did not recall
specifically if she ever got aid for Hazen. The prosecutor
replied, "I guess that's something you would forget perhaps
whether you got state aid" (T 1413). The prosecutor asked the
witness if she cared so much for Hazen, why didn't she adopt
them. Karl responded that the state law in Oklahoma would not
allow you to adopt foster children (T 1415).
The prosecutor then asked Ms. Karl if it didn't have
something to do with her background, and hadn't she had some
7s
problem with contributing to delinquency problems? (T 1415).
After objection, at the bench, the prosecutor stated he knew
the witness was convicted of contributing to delinquency with
some juvenile (T 1417). The prosecutor apparently had no written
verification of this nor did he reveal his source. Further,
prior to Karl taking the stand, the prosecutor had advised the
defense attorney that the prosecutor had no evidence of any
felonies or crimes of dishonesty concerning Ms. Karl. After the
trial judge ruled that the line of questioning would be
admissible, the prosecutor stated he would just abandon it (T
1416-1418).
At a later point, after continuing to question the witness
about details of the escape that appellant had been previously
convicted for, the prosecutor then asked if Karl had gone to
Kormondy's house and bought some stereo equipment or a VCR and
taken it back to her home in Oklahoma (T 1421-1422).
The case was submitted to the jury.
During its deliberation, the jury returned a question.
THE COURT: Okay. We're back on the record
again. The defendant is present represented
by counsel. The State is present through
counsel. The jury has a question which they
have propounded to the Court in writing.
The question says, "sir, may a juror
abstain from voting? Example: Six favor
death, five are opposed, one abstains. Do
we then have a simple majority?" Signed by
the foreman.
Counsel, do you agree with the Court that
the answer to this question should simply be
76
that a juror may not abstain from voting,
period?
MR. ALLBRITTON: Judge, I don't know
whether or not that is a correct statement of
the law. I've never run across it. I don'-t
know of any case law to support one position
one way or the other, and I'm kind of
reluctant to agree to anything. I'm going
to leave it to the judgment of the Court.
THE COURT: Well, the judgment of the Court
is that you have what is tantamount to a hung
jury if you have a juror abstain. They are
required by their oath and by their
instructions by the Court that they are to
return a recommendation that is in some form
either by a majority or otherwise. If they
were not in a position to vote, then that
should have been made known at jury
selection. They were given ample opportunity
to make that known if they were not in a
position to vote on this issue. Since the
inception they were told that this was a
potential death penalty case.
MR. ALLBRITTON: Of course, you see what my
concern is, Judge. If the example is that
six have voted for death and five have not,
that even though the other one did not vote,
that six does not constitute a majority.
THE COURT: Right.
MR. ALLBRITTON: And, therefore, death would
not be an option.
THE COURT: Their vote does not say that
this is what we have come to so far. It says
example. Now, whether that example coincides
with where they are in their deliberations, I
have no way of knowing,and I don't think it
would be proper for the Court to inquire.
. . .
THE COURT: . . . I'm simply going to answer the
question that it is not permissible for a
77
’ , ,’
juror to abstain from voting, period (T 1461-
1463).
The trial judge then instructed the jury that:... "I have
read the question and the answer to the question is that it is
not legally permissible for a juror to abstain from voting. Does
that answer the question? JUROR: Yes, sir, it does (T 1463).
The jury subsequently returned an advisory verdict of death
by a seven to five vote.
The trial judge followed the recommendation and sentenced
appellant to death on the murder conviction. Appellant was
sentenced to life on the remaining five contemporaneous
convictions (R 228-241).
The sentencing order outlining the trial court's reasoning
for sentencing appellant to death is contained in the record (R
242-253). The aggravating circumstances found by the trial judge
all relate to the crime committed against the McAdams. One, the
Defendant has been previously convicted of a felony involving the
use or threat of violence to a person. This was based on the
acts which occurred that evening, including the sexual battery of
Mrs. M&dams. Two, the capital felony was committed while the
defendant was engaged, or was an accomplice in the commission of,
or an attempt to commit, or flight after committing or attempting
to commit a burglary. This was based on the burglary of the
McAdams home. And thirdly, that the capital felony was committed
for pecuniary gain (R 243-246).
7 8
While the judge says that no other factors were considered
in aggravation, it is noteworthy that the trial judge's belief
that "witness elimination" was another intent of the
perpetrator's (R 243). The judge mentioned this in his order
finding the appellant had previously been convicted of a felony
involving the use of threat or violence, and further stated in
his rejection of one mitigating circumstance stating, "The firing
of the second shot could have been for no purpose other than to
create the appearance (for the benefit of his codefendants) that
Hazen had,in fact,completed his part in what the evidence
establishes to have been a prearranged plan for the elimination
of both Mr. and Mrs. McAdams (T 246-247).
This appeal follows.
SUMMARY OF ARGUMENT
In Issue I appellant submits that the trial erred in
determining that the evidence did not support the mitigating
circumstance that appellant had mno crimes of violence prior to
July 19, 1993" and that "a co-defendant with greater involvement
was sentenced to life.
Under Camw&ll v. State, 571 So.2d 415 (Fla. 1990) the law
is clear that a trial judge is required to expressly evaluate in
its written order each mitigating circumstance proposed by the
defendant to determine whether the evidence supports it and
79
whether any proposed statutory mitigation is truly mitigating.
In this case, the trial court rejected that appellant had no
prior crimes of violence because of an equivocal and ambiguous
statement made on the stand which had no relevance to the
proposed mitigator.
Further, in rejecting as a mitigating circumstance that an
equally or more culpable co-defendant received life, the trial
court not only ignored the evidence, but the telling statement
made by the prosecutor at the sentencing hearing that all three
perpetrators "equally deserve the death penalty because none of
the mitigating circumstances, when added together for each of
these defendants, could possibly outweigh the aggravating
circumstances in this case" (S 103). The result was to violate
the rule of Slater v State, 316 So.Zd 539 (Fla 1975).
In Issue II appellant submits that the death sentence in
this case is disproportional as a matter of law to the sentence
received by a co-perpetrator who was of equal or greater
culpability in the commission of the murder. The relative
culpability of the defendant who received a life sentence is
contrasted to the relative culpability of appellant. The
resulting inescapable conclusion is that the facts as presented
at trial establish without any serious question that Buffkin's
relative culpability in this crime was greater than Hazen's. It
is indisputable that the re lative culpability was at a minimum an
8 0
equal culpability. Under no scenario of the facts as presented
at trial, can appellant be considered more culpable than Buffkin.
Hazen's death sentence should be vacated and his a life sentence
imposed.
In Issue III appellant submits that the trial court erred in
instructing the jury that it was not legally permissible for a
juror to abstain from voting in the penalty phase. An accused
has an inviolate right under the statutory sentencing scheme in
Florida to an advisory recommendation made by a jury. Section
921.141, Fla. Stat.(1995). Unless a majority of the jury
recommends death, the accused is entitled to a life
recommendation. Implicit in this right to an advisory
recommendation is a right to a fair and impartial jury. This
right is nullified when a juror is ordered and advised by the
trial judge that the law requires that juror to vote and posits
that no intervening circumstances have rendered that juror unfair
and partial.
In Issue IV appellant submits that the "reverse
identification" made by Mrs. McAdams in a previous encounter with
appellant in a courtroom, i.e., that while she did not recognize
appellant he recognized her, constituted reversible error and
deprived appellant of his right to a fair trial and due process
of law in contravention of Article I, Sections 9 and 16 of the
Florida Constitution and Amendments V and XIV of the United
81
States Constitution. Any probative value that this testimony may
have had was outweighed by the prejudicial effect on appellant's
right to a fair trial. This is due both to the circumstances
under which Mrs. McAdams viewed appellant -- at an arraignment
with his co-defendants and to the manner in which it was used by
the state as "proof" that appellant was at the scene of the
crime.
In Issue V appellant submits he was deprived of a fair trial
and due process of law due to the prosecutor's unveiled and
unsubstantiated attack on appellant's only mitigation witness.
The testimony was completely out of ethical bounds and deprived
appellant of fundamental fairness in the presentation of evidence
at his penalty phase.
ARGUMENT
ISSUE I
THE TRIAL JUDGE ERRED IN DETERMINING THAT THE EVIDENCE DID NOT
SUPPORT PROPOSED MITIGATING CIRCUMSTANCES AND WHETHER OR NOT THE
PROPOSED NONSTATUTORY MITIGATING CIRCUMSTANCES WERE TRULY
MITIGATING
Out of the proposed mitigating circumstances, the trial
judge rejected and gave no weight to the proposed mitigators of
"No crimes of violence committed prior to July 19, 1993" and -a
co-defendant with greater involvement sentenced to life
imprisonment" (T 250-251). The full argument on the court's
rejection of the latter mitigating circumstance, that "a co-
82
defendant with greater involvement sentence to life imprisonment"
is contained in Issue II.
Under CamDbell v. State, 571 So.Zd 415 (Fla. 1990) the law
is clear that a trial judge is required to expressly evaluate in
its written order each mitigating circumstance proposed by the
defendant to determine whether the evidence supports it and
whether any proposed statutory mitigation is truly mitigating.
A) In rejecting the proposed mitigating circumstance of "NO
crimes of violence committed prior to July 19, 1993 the trial
judge wrote:
"The evidence establishes that (prior to the
instant criminal episode) Hazen had no
involvement in crimes of violence. His prior
criminal record consists of a burglary for
which he was initially placed on probation.
His supervision was, however, terminated for
failure to pay court costs and fines. As a
result of that violation he was sentenced to
state prison. While in state prison he
escaped and was apprehended in New Mexico
where he was returned to prison and sentenced
to additional time for the escape.
Although, on its face, Hazen's lack of
record for violent crimes appears to be a
viable mitigating factor the Court considers
Hazen's own testimony to be the more accurate
barometer of his propensity for violence.
Although he denied participating in the
events of that evening he, nonetheless,
testified that if he had been present neither
Mr. or Mrs. McAdams would have been left
alive. This testimony clearly belies any
inference which might otherwise be drawn from
a lack of documented prior violent behavior.
The Court therefore finds that this nonstatutory
mitigating factor has not been
reasonably established and gives it no
weight." (T 250-251).
83
The record support for the court's annulment of the proposed
mitigating factor does not, in fact, address whether or not Mr.
Hazen had "no prior record of violent crimes prior to July 19,
1993”. Instead, the trial judge treats the mitigating factor as
if it were proposed that Mr. Hazen had no propensity for
violence. Not only does this not address the actual mitigating
factor proposed, the only record support for the trial judge's
conclusion that defendant has a propensity for violence is based
on a cross-examination of Hazen, which contained several
interruptions by the prosecutor, was based on hypothetical
proposed by the prosecutor, and was ultimately ambiguous as to
its meaning.
Q (prosecutor): Isn't it a case, sir, of
once being in the house, that they began to
rape a woman, and you didn't want to have any
part of that, and you were scared, and you
just don't want to tell us that you were
there?
A (Hazen): If I was gonna have something to
do with that situation, it would have been
done a lot different and --
Q: You'd have killed Mrs. McAdams, for one
thing.
A: If somebody --
Q: Is that right?
A: Yeah, if I --
Q: Is that right? Is that right?
A: If I would have been there, that's what
would have happened, yes.
84
,
Q: You would have made sure she was dead?
A: If that's what -- if I was gonna do that,
that's what would have to have happened, yes.
Q: Did it ever cross your mind, sir, that if
you'd been there, sir, the whole point of
this is, you don't kill somebody, that you
turn around and walk out or you tell the
others to stop? Did it ever cross your mind
that's the right answer, sir?
A: If I was there, that's what I would have
done.
Q: You just said if you were there, you would
have killed her?
A: If I could have stopped it, I would have
(T 1103-1104).
The ambiguity is further clarified in the defendant's favor
in light of the fact that the trial judge believed the defendant
was in fact at the scene, and that the defendant had in fact LLQL
killed Mrs. McAdams despite an apparent ability to do so.
Thus the trial judge erred in taking a statement based on a
hypothetical during a cross-examination in which appellant was
repeatedly interrupted by the prosecutor, and giving it more
weight then what actually played out at the scene. A statement
replete with "ifs" must fall before the actuaJ facts which
transpired at the scene -- that is that Hazen did not kill or
attempt to kill Mrs. McAdams.
The trial judge candidly stated in his order that "the
evidence establishes that (prior to the instant criminal episode)
Hazen had no involvement in crimes of violence".
85
B) The trial judge erred in rejecting as a mitigating
circumstance that "a co-defendant with greater involvement [was]
sentenced to life imprisonment" (T 250-251). The full argument
as to why the court erred in rejecting this mitigating
circumstance is contained in Issue II.
Thus the trial judge erred in not finding the aforementioned
mitigating circumstances and denied appellant his right to
proportionality review and due process of law in contravention of
Article I, Sections 2, 9, and 16 of the Florida Constitution and
Amendments V, VIII, and XIV of the United States Constitution.
86
,
ISSUE II
APPELLANTS SENTENCE WAS DISPROPORTIONAL TO THE SENTENCE RECEIVED
BY A CO-PERPETRATOR WHO WAS OF EQUAL OR GREATER CULPABILITY IN
THE COMMISSION OF THE CRIMES
Florida law is well-settled that death is not a proper
penalty when a co-perpetrator of equal or greater culpability has
received less than death. This holds whether the coperpetrator's
death sentence becomes final while the defendant's
case is at the trial level, on direct appeal, or pending decision
on a motion seeking post conviction relief. Scott v. nuclcler, 604
So.2d 465 (Fla. 1992) (post -conviction relief); Witt v. State,
(direct appeal) 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935,
54 L.Ed. 2d 294, 98 S.Ct. 422 (1977); Slater v State, 316 So.2d
539 (Fla 1975) (trial level).
In Slater, Slater, Larry Gore, and Charlie Ware were
arrested for a robbery that resulted in a murder. Gore was the
driver of the get-away car and never entered the establishment.
The uncontroverted evidence established that Slater and Ware
entered the motel, and that during the robbery, the clerk of the
motel was shot and killed by Ware. Slater then assisted Ware in
removing the money from the motel and fled the scene. Ware plead
guilty to first degree murder and received a life sentence.
Slater was tried by a jury, received a life recommendation,
and was sentenced to death.
In ordering that Slater's sentence be reduced to life
87
imprisonment, this Court stated:
In this robbery-murder incident, the court
that tried the appellant also permitted the
"triggerman", Ware, to enter a plea of nolo
contendere to the charge of first degree
murder, for which he was sentenced to life
imprisonment. The record clearly reflects
that the defendant-appellant, Slater, was an
accomplice and did not have the murder weapon
in his hand. Eleven members of the jury
recognized the circumstances surrounding this
offense and recommended life imprisonment.
We wride ourselves in a svstem of iustice
that reguires equality before the la
+D f iff r n
upon the same or similar facts. When the
afcts are the sam e, the law should be the
same. The imggsition of this sentence 's not
ecrual iuttice before the law. [Emphasis
added].
Slater, 316 So.2d at
More recently,
251.
in Scott, this Court considered Scott's claim
brought on a motion for post-conviction relief that "the death
sentence is disproportionate, disparate, and invalid based upon
the newly discovered evidence that Scott's codefendant Amos
Robinson received a life sentence" Id. at 467. Prior to the
motion for post-conviction relief, Scott's death sentence had
been recommended by the jury, imposed by the trial judge, and
affirmed by this Court. This Court accepted review stating that
regardless of the timing of the respective sentences of the
defendants for a crime, "it is proper for this Court to consider
the propriety of the disparate sentences in order to determine
whether a death sentence is appropriate given the conduct of all
8 8
,
participants in committing the crime" &J. at 468. This Court
found that factually,
‘As to the crime itself, they [Scott and
Robinson] were both involved in all aspects
of it. They both participated in the robbery
of the victim, his kidnaping, his beatings
and, although Scott eventually ran the man
down with the automobile, it was only after
Robinson concocted this method of killing the
victim, and, in fact, was the first to try,
but failed. It is clear that this is not a
case where Scott was the "triggerman" and
Robinson a mere unwitting accomplice along
for the ride. In fact, "there is little to
separate out the joint conduct of the
codefendants which culminated in the death of
the decedent" (citation omitted)"
U. at 468.
After concluding its review of the law and the facts, this
Court vacated Scott's death sentence and remanded for imposition
of a life sentence without eligibility for parole for twenty-five
years.
In the case at bar, the facts as presented at trial
establish without any serious question that Buffkin's relative
culpability in this crime was greater than Hazen's. It is
indisputable that the relative culpability was at a minimum an
equal culpability. Under no scenario of the facts as presented
at trial, can appellant be considered more culpable than Buffkin.
During Buffkin's trial, Buffkin plead guilty to the murder
of Mr. McAdams, as well as burglary, robbery, and three counts of
sexual battery (T 911).
89
,
Buffkin began his crime spree, culminating in the murder of
Mr. McAdams, by escaping from a county prison on July 6, 1993.
During the four days before Buffkin went to Kormondy's house,
Buffkin committed several crimes. After leaving the road camp,
Buffkin broke into a trailer home and stole a $30,000 car,
clothes, and some keys. After spending some time with his
girlfriend and cousin "Larry" (whose last name Buffkin was never
able to remember), Buffkin decided to go to Kormondy's house.
Buffkin and Kormondy had been good friends since meeting in jail
in 1990 while Buffkin was awaiting transport to prison.
Kormondy welcomed Buffkin, and the two went back to the
trailer home Buffkin had previously burglarized and stole some
stereo equipment.
The next evening, Friday July 9th, Buffkin, Kormondy,
Kormondy's brothers, and Joe went to "titty bars" and bought
crack which Kormondy and Joe smoked. During this time, Buffkin
and Kormondy talked about burglarizing a home.
Buffkin and Kormondy took Joe back to his home. Buffkin and
Kormondy then broke into James Chaney's house where they stole
rings, whiskey, stereo equipment and a . 44 Charter Arms Bulldog
firearm. They went back and picked up Joe, sold the stereo
equipment and purchased crack. Kormondy and Joe smoked the
crack. When Buffkin was subsequently arrested in North Carolina
he had in his possession Chaney's Charter Arms Bulldog firearm;
90
at the same time a wedding ring stolen from Chaney was recovered
from Buffkin's sister.
Kormondy and Buffkin began a discussion about breaking into
a house with someone in it. This was apparently because they
believed they were more likely to obtain cash rather then items
that might be difficult to fence. Buffkin said that all along
the plan was to just go in there, get money, guns and jewelry and
get up out of there (T 923-928).
It was after these burglaries committed by Kormondy and
Buffkin that appellant arrived at the Kormondy home -- invited
there after a family reunion which Hazen had attended.
Buffkin unequivocally testified that while at the Kormondy
home, Hazen was not involved nor could he hear the conversations
which took place between Hazen and Kormondy about breaking into
an occupied home (T 987-988; T 991). When Buffkin took the
previously stolen . 44 Charter Arms Bulldog firearm out of the
house, Buffkin shoved the gun into his pants concealing it from
Hazen's view. In fact, Buffkin had at first forgot the gun he
had hid under the couch, and went back inside to get it while
Hazen was outside by the car (T 992).
Buffkin said he and Kormondy did discuss burglarizing the
home in the car, that the radio was playing in the back seat, and
that he did not know what, if anything, Hazen heard (T 1008).
During the commiss ion of the crime, short of pu lling the
9 1
I
,
trigger, Buffkin had the most active role. It was Buffkin who
knocked on the front door of the McAdams home, disarmed them by
saying it was "me", and then said to the McAdams, "put your heads
down and don't look up or 1'11 blow your fucking heads off" (T
928). Buffkin repeated to them to get down on the floor and do
as he said and no one would get hurt.
Buffkin took credit for the plan to secure the house,
stating that when he and Kormondy had talked before about how to
secure the house, "I [Buffkin] just basically told him when we
entered the house just pull the phone cords and shut the curtains
and stuff like that and so that's basically what happened."
Kormondy re-emerged from the back bedroom to the kitchen
where Buffkin was holding the McAdams at gunpoint. Kormondy had
a gun in his hand which belonged to Mr. McAdams.
Kormondy ran the gun along the woman and told her to come
with him. Buffkin said taking the woman in the back bedroom was
not part of the original plan. Kormondy and Hazen went in the
back room. When they returned and she was naked, Buffkin gave a
beer to Mr. McAdams to drink. Buffkin then handed the .44 to
Hazen and went back to rape Mrs. McAdams. Buffkin told her, "I
don't know what the other two did to you, but you're going to
like what I'm going to do to you" (T 933). Kormondy followed and
Buffkin and Kormondy proceeded to rape Mrs. McAdams.
Kormondy threw a towel over Mrs. McAdams head and went to
92
the front of the house. When Hazen walked in the bedroom Hazen
tried to hand the .44 firearm to Buffkin but Buffkin told Hazen
to keep the gun.
Buffkin then went back to the front of the house and began
rifling through Mrs. McAdams purse. At that point, Kormondy shot
Mr. McAdams. Buffkin heard a shot in the back bedroom and
Buffkin, Kormondy, and Hazen left the house.
The record also supports that Buffkin had a criminal record
.-..- burglary of an auto and petty theft in 1993, two grand thefts
and a burglary in 1990, and two grand thefts and a burglary in
1988 and 1989 (T 1012). This record does not include Buffkin's
self-admitted escape from the county road camp, two burglaries of
a trailer after his escape, auto theft, and the burglary of the
Chaney home in which the gun and jewelry were stolen.
Hazen's culpability is that at some point after the crime
was planned he became a participant; that time could have been as
late as when they exited the car to commit the burglary. Hazen
did not participate in the Chaney burglary which supplied the
gun. Hazen assisted in disabling phones and rummaging through
the McAdams bedroom. Hazen committed a rape on Mrs. McAdams. At
one point,Hazen guarded Mr. McAdams with a gun (not shooting
him), and subsequently tried to give the gun back to Buffkin.
After hearing a shot in the front room where Mr. McAdams was
killed, and being alone in the back room with Mrs. McAdams, Hazen
9 3
fired a shot which under no theory was intended to kill Mrs.
McAdams.
Under the facts of this case, Buffkin's culpability, as
compared to Hazen's, was not considered by the trial judge and in
fact Buffkin's life sentence was rejected as a possible
mitigating circumstance.
Under the facts of this case, Hazen was given a sentence
which was disproportionate, disparate, invalid, and not equal
under the law to that given his perpetrator.
This conclusion is shared by the prosecutor in this case who
stated at Hazen's sentencing hearing: "All three [Hazen, Buffkin,
and Kormondy] deserve the death penalty because none of the
mitigating circumstances, when added together for each of these
defendants, could possibly outweigh the aggravating circumstances
in this case" (S 103).
Based on the foregoing, imposition of the death penalty in
this case violated appellant's constitutional right to equal
protection of the law, due process of law, and freedom from cruel
or unusual punishment in contravention of Article I, Sections 2,
9 and 17 of the Florida Constitution and Amendments V, VIII, and
XIV of the United States Constitution.
94
ISSUE III
THE TRIAL JUDGE REVERSIBLE ERRED IN ADVISING THE JURY THAT
IT WAS NOT LEGALLY PERMISSIBLE FOR A JUROR TO A,j3STAIN FROM VOTING
IN THE PENALTY PHASE
Appellant submits that the trial court erred in instructing
the jury that it was not legally permissible for a juror to
abstain from voting in the penalty phase. An accused has an
inviolate right under the statutory sentencing scheme in Florida
to an advisory recommendation made by a jury. Section 921.141,
Fla. Stat.(1995). The constitutionality of Florida's death
penalty scheme, which includes the advisory sentence process, as
well as a wealth of case law which gives an almost irrebuttable
presumption to a life recommendation, is contingent on this
scheme. Proffit v. Florida, 428 U.S. 242 (1976); Caldwell v,
Mississippi, 472 U.S. 320 (1988); Tedder v. State, 322 So.2d 908
(Fla. 1975); Wainwricrht v. Wu, 469 U.S. 412 (1985).
Unless seven or more jurors recommend death, the accused is
entitled to a life recommendation. Implicit in this right to an
advisory recommendation by a penalty phase jury is a due process
right that the jury be fair and impartial jury. Article I,
Sections 16 and 22, Fla. Constitution; Amendments VI and XIV,
United States Constitution; Wainwriaht v. Witt, 469 U.S. 412
(1985).
The trial judge committed reversible error when he advised
the jurors that the law required that they vote without going
95
into the circumstances behind the jurors' question. Implicit in
the trial judge's instruction to the jury was that no intervening
event or change of heart had occurred which made that particular
juror feel they could not render an impartial and fair verdict.
Without any inquiry, this was an assumption without basis in
fact. Thus, the jury's subsequent recommendation of death was a
nullity.
96
MRS. MCADAMS TESTIMONY THAT APPELLANT RECOGNIZED HER AT A
PREVIOUS ENCOUNTER IN A COURTROOM SUBSEQUENT TO THE CRIME
DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND A FAIR TRIAL IN
CONTRAVENTION OF ARTICLE I, SECTION 16 OF THE FLORIDA
CONSTITUTION AND AMENDMENTS V AND XIV OF THE UNITED STATES
CONSTITUTION
Ms. McAdams was present at a court appearance held
subsequent to the crime but before trial where all three
defendants were brought for arraignment. Ms. McAdams recognized
two of her assailants. She was aware that the individuals
suspected of committing the crimes against her and her husband
were to be in court that day.
Under these circumstances, Ms. McAdams concluded that
appellant kept staring at her, and in fact this testimony was
used by the state at Hazen's trial as a form of "reverse
identification." That is, while Ms. McAdams could not recognize
the third perpetrator, that third perpetrator had to be appellant
because of the way he kept looking at her in court.
If this had been a situation where Ms. McAdams had been
asked to go to court and see if she could recognize anyone
involved in the crime, with full knowledge that the suspect was
there, certainly a full panoply of the appellant's rights
concerning due process, accuracy of any identification, and state
and federal constitutional rights to counsel would have
undoubtedly been transparently implicated, a Fdwards v. State,
538 So.Zd 440 (Fla. 1989) and cases cited therein.
The "reverse identification" made by Mrs. McAdams in a
97
previous encounter with appellant in a courtroom, i.e., that
while she did not recognize appellant he recognized her, calls
into question those very same rights.
Most important to this analysis is that the probative value
was minimal. The prejudice to appellant, as it was used at
trial, was overwhelming. This is due both to the circumstances
under which Mrs. McAdams viewed appellant -- at an arraignment
with his co-defendants, and to the manner in which it was used by
the state as "proof" that appellant was at the scene of the
crime. Even if it had never been directly referred to as a form
of eyewitness proof that appellant was at the scene of the crime
-- the facts of this case reveal that this could have been the
state's only motive for introducing this testimony.
The admission of the testimony constituted reversible error
and deprived appellant of his right to a fair trial, assistance
of counsel, and due process of law in contravention of Article I,
Sections 9 and 16 of the Florida Constitution and Amendments V,
VI,and XIV of the United States Constitution.
Appellant's conviction should be reversed and the case
remanded for a new trial.
98
ISSUE V
APPELLANT WAS DEPRIVED OF DUE PROCESS OF LAW AND A FAIR TRIAL IN
CONTRAVENTION OF ARTICLE I, SECTIONS 9 AND 16 AND AMENDMENTS V
AND XIV OF THE UNITED STATES CONSTITUTION
During the cross-examination of appellant's only mitigation
witness, the prosecutor accused her of stealing Hazen's money,
being too busy working to take care of her children, helping
Hazen only because of a state aid check which he could not prove
Kasl ever received, stating she had been convicted of
contributing to the delinquency of a child, without producing any
proof of same, and repeatedly accused her of lying to him in his
office. This undocumented attack on the appellant's mitigation
witness crossed all bounds of fairness and due process of law.
It deprived appellant of the most rudimentary due process, i.e.,
fundamental fairness and an opportunity to be heard. While the
prosecutor's most fanciful comment took place at the bench, i.e.,
that Ms. Kasl was actually running a kind of Pleasure Island,
it's effects could be seen in the cross-examination before the
jury. This theory of prosecution was never shown to be based in
fact, and the manner in which it played out in front of the jury
unfairly destroyed the credibility of appellant's one mitigation
witness.
99
CONCLUSION
Appellant should be granted a new trial. If this relief is
denied, appellant's sentence should be reduced to life. If this
relief is denied, appellant's case should be reversed and
remanded for a new penalty proceeding.
. .+“-fJ.pAfLAbh
Lynn A. Williams
Attorney At Law
902-A N. Gadsden Street
Tallahassee, Florida
Fla. Bar. Id. No. 195484
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a copy of the foregoing was delivered by United States Mail
to Mr. Richard Martel, Assistant Attorney General, Office of the Attorney General, The Capitol,
Suite 2 14, Tallahassee, Florida 32399-1050 this 14- dayL 1996.
cb. A LLynn
A. Williams
Attorney at Law
Fla. Bar. No. 195484
902-A N. Gadsden Street
Tallahassee, Florida 32303
(904) 224-2 146
100

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