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CAUSE NO. 8701
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THE STATE OF TEXAS
VS.
RODNEY REED
XXXXX
IN THE DISTRICT COURT OF
BASTROP COUNTY, TEXAS
21ST JUDICIAL DISTRICT
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REPORTER'S RECORDGUILT/INNOCENCE PHASE PRE-TRIAL HEARING
APRIL 30, 1998
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VOLUME 42 OF 69
ORIGINAL
FILED INCOURT OF C:PIMrNIlI ~ pOI=ALS
SEP 9 1998
Troy C. Bennett, Jr., LlerK
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1 On the 30th day of April, 1998,' t~e
2 above entitled and numbered cause carne on for
3 hearing before said Honorable Court, Harold R.
4 Towslee, Judge Presiding, and the following
5 proceedings were had:
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Volume 42 of 69
PRE-TRIAL HEARING
(PAGES 1 THROUGH 81)
1 APPEARANCES:
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For the State
Mr. Charles PenickDistrict Attorney, Bastrop County804 Pecan StreetBastrop, Texas 78602SBOT #015748500(512) 321-2244
Mr. Forrest SandersonAssistant District Attorney804 Pecan StreetBastrop, Texas 78602SBOT #17610700(512) 321-2244
Ms. Lisa.TannerAssistant Attorney GeneralP. O. Box 12548Austin, Texas 78711-2548SBOT #19637700(512) 463-2170
For the Defendant
Mr. Calvin GarvieAttorney at Law22 N. Bell St., P. O. Box 416Bellville, Texas 77418SBOT #07714300(409) 865-9781
Ms. Lydia Clay-JacksonAttorney at Law700 N. San JacintoConroe, Texas 77301SBOT #04332450(409) 760-2889
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CHRONOLOGICAL INDEX
WITNESS
APPEARANCES
PRETRIAL HEARING
MOTION TO SUPPRESS
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8 DAVID BOARD
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DIRECT EXAMINATION BY MS. TANNER
VOIR DIRE EXAMINATION BY MR. GARVIE
DIRECT EXAMINATION CONTINUED BY MS. TANNER
VOIR DIRE EXAMINATION BY MR. GARVIE
DIRECT EXAMINATION CONTINUED BY MS. TANNER
CROSS-EXAMINATION BY MR. GARVIE
REDIRECT EXAMINATION BY MS. TANNER
THE COURT VIEWED THE VIDEOTAPE
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19 DAVID BOARD (RECALLED)
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RECROSS EXAMINATION BY MR. GARVIE
FURTHER REDIRECT EXAMINATION BY MS. TANNER
FURTHER RECROSS EXAMINATION BY MR. GARVIE
RULING ON MOTION TO SUPPRESS
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1 DEFENSE MOTION IN LIMINE NO. 13 40
2 RULING 50
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4 STATE'S MOTION IN LIMINE REGARDING
5 EXPERT WITNESSES 52
6 RULING 52
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8 STATE'S MOTION IN LIMINE 53
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10 STATE'S MOTION REGARDING PSYCHIATRIC
11 EVALUATION 67
12 RULING 77
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14 COURT ADJOURNED FOR THE DAY 80
15 COURT REPORTER'S CERTIFICATE 81
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No.
S-6
S-7
S-8
Description
Statement
Videotape
Miranda Card
EXHIBIT INDEX
VOLUME 42
PRE-TRIAL
Mrkd
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Admit
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Motion in Limine, Judge, and a Motion to
Suppress.
(Day 20, Pre-trial Hearing, April 30, 1998;
Cause Number 8701, The State of Texas versus
Rodney Reed.)
MR. GARVIE: Yes.
THE COURT: What would be the
logical order to take those up? My suggestion
would be to do the Motion to Suppress so we
can get all the witnesses on their way.
MR. GARVIE: That's fine,
Judge. I don't know how the Court is going to
We have a
Are you ready onTHE COURT:
all those?
THE COURT: If you folks are
ready we'll go ahead and get started. If you
will give me your announcements and tell me
what motions you have for me today.
MS. TANNER: The State's
ready, Your Honor. We have filed a motion in
limine and a second motion in limine regarding
witnesses and a motion to have the defendant
psychologically examined.
MR. GARVIE:
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MS. TANNER: No.
view that before we hear the witnesses?
Do you have any argument?
addressing the statement of voluntariness.
No, we
No, Your Honor
David Board.
Twenty or
I have no
Okay, let's do
How long is it?
Who is your first
Do you want me to
MR. GARVIE:
MS. TANNER:
MR. GARVIE:
MS. TANNER:
MS. CLAY-JACKSON:
THE COURT:
THE COURT:
THE COURT:
THE COURT:
view it or view it now in open Court.
objection to you viewing it on your own.
deal with the videotape, if the Court wants to
-- for purposes of this hearing we are
thirty minutes.
take a break while I view the videotape.
that, and then we'll take a break, and you can
witness.
can go ahead.
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DAVID BOARD, the witness, after having
first been duly sworn, testified upon his oath as
follows:
DIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. State your name for the record, please.
A. David Board.
Q. And how are you employed?
A. Sergeant with the Bastrop Police Department.
Q. How long have you been with the Bastrop Police
Department?
A. Since July of '86.
Q. Eleven or twelve years?
A. Twelve years.
Q. And where are you -- a sergeant with the
Bastrop Police Department?
A. Sergeant.
Q. Patrol or detective?
A. Administrative sergeant.
Q. Do you have the opportunity to investigate
criminal cases?
A. Yes, ma'am.
Q. And were you one of the investigators who
worked on the case of the murder of Stacey
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A.
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Stites?
Yes.
And you worked on behalf of the Bastrop Police
Department on that case?
Yes.
In conjunction with that investigation, did
you have an opportunity to talk to the
defendant in this case, Rodney Reed?
Yes, ma'am, I did.
Do you recall what date you talked to him?
April 4th, 1996.
1996 or 1997? You might want to check your
notes.
1997, I'm sorry.
And where was it that you conversed with the
defendant?
In an interview room located here at the
sheriff's department.
And why was the defendant there?
He was brought to the interview room for the
purposes of an interview regarding this
particular case.
Was he in jail at the time?
Yes, he was.
What kind of charge was he in jail on?
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He was arrested the previous night for, I
believe, delivery of a controlled substance.
So he had not in any way at that time on April
4 of 1997 been charged with anything in
conjunction with the Stacey Stites case; is
that correct?
No, ma'am, I don't believe.
Okay, he was in jail on a drug charge, right?
Yes. I believe a warrant was outstanding that
morning.
When you went and talked to him had that
warrant been served on him?
No, it had not been served on him.
Now did you have an opportunity at the time
you talked to him to take a statement from the
defendant with regard to the Stacey Stites
case?
Yes.
And was that a written or oral statement?
Written statement.
And through the course of taking that written
statement were there other means to record it?
Yes, the entire interview was audio and video
recorded.
Was there also a one-way mirror so others
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could observe that taking place?
The interview room is equipped with a one-way
mirror but I don't think there was anyone
observing it.
Is there another way?
Yes, through a television monitor.
So everything that was transcribed was
videotaped?
Yes.
Now before you took a written statement from
the defendant did you read him his rights?
Yes.
And by that I mean what?
I advised him of his Miranda rights.
Do you have a card that you use?
Yes, ma'am I do.
And do you have that actual card that you used
in this case with you?
Yes.
(State's Pretrial Exhibit No.
8 was marked for
identification purposes.)
25 Q. (BY MS. TANNER) I show you what has been
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marked as state's Number 8 and ask you what
that item is.
That's a Miranda rights warning card.
4 Q. Okay. Is that the card you used and you read
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A.
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off to the defendant on April 4th, 1997?(
Yes, ma'am.
And on there does it list each of the Miranda
rights that you read to him?
Yes, it does.
And did you make any markings on that card to
note that those had, in fact, been read?
Yes, by each of the warnings read to him I
placed a checkmark to the left-hand side of
the number.
And then on the back of that card behind the
warnings is there anything that reflects that
those warnings were read and he understood
them?
Yes, it has my signature, the date and the
time and the defendant's signature.
And did you actually observe the defendant
sign that card?
Yes, I did.
Okay. And on that back right there just above
the signature, does it have any other
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statement?
other side of this card."
that you used in this case?
(States Pretrial Exhibit No.
I'm
State would
I'm objecting
Yes, that's not
What was the
Do you want to
Any objections?
MR. GARVIE:
MS. TANNER:
THE COURT REPORTER:
THE COURT:
THE COURT:
8 was offered into evidence.)
MR. GARVIE:
THE COURT:
offer State's pretrial exhibit 8.
Yes, it is.
his signature.
Yes, it has a statement that reads, "I have
And so that is, in fact, the original card
accused's signature.
on the basis that we don't believe that's the
received and understand the warning on the
sorry?
objection? We couldn't hear.
Do you want to see it?
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ask the witness some questions?
MR. GARVIE: Yes.
THE COURT: Go ahead.
MR. GARVIE: Yes, sir.
THE COURT: It's overruled, 8
is admitted, ma'am.
(State's Pretrial Exhibit No.
8 was admitted into
evidence.)
VOIR DIRE EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. You're saying that Mr. Reed signed that in
front of you?
A. Yes, sir.
Q. At the time that you said that you read him
his rights?
A. Yes, sir.
Nothing
Is that your only
MR. GARVIE:
THE COURT:
further.
objection to it.
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I'
[. 1 DIRECT EXAMINATION CONTINUED
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2 QUESTIONS BY MS. TANNER:
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Q.
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And you actually observed the defendant make
this signature on that card?
Yes, sir.
And that would also be reflected on the
videotape, would it not?
Yes, sir.
9 Q. Okay. When you talked to the defendant and
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you read him his rights, did he indicate to\
you verbally that he understood those rights?
Yes, sir.
By the way, you -- before April 4th, you had
talked to the defendant in the past, had you
not?
Yes, ma'am.
So you two knew each other and conversed on
other occasions?
Yes.
20 Q. Okay. At any time during the course of
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talking to him before you actually took the
statement, did he indicate to you in any way
that he wanted a lawyer or wanted to talk to a
lawyer before he was willing to talk to you?
No, sir.
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No, ma'am.
Okay. Did he in any way tell you that he just
didn't want to talk to yo~?
Towards the end of the interview, yes, he did.
Was that before or after you took a written
statement from him?
That was after.
Okay. But up until the point when you took
the written statement he never at any point
said he wanted a lawyer or didn't want to talk
to you?
defendant, did you ever in any way, shape or
form threaten him with anything?
No.
Did you make any attempts in any way to coerce
him to talk to you?
No.
Did you through the course of talking to him
promise him anything if he would cooperate
with you?
No.
Did he ever ask you to take a break and you
refused to let him take a break or anything
like that?
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Q.
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Okay. Through the course of talking to the
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A. Yes, ma'am.
A. No.
Q. Okay. And you indicated that you two talked
and then he gave you a written statement?
Q. Which of the two of you filled out the written
statement?
A. Mr. Reed filled out the written statement.
Q. You didn't write it for him or anything like
that?
A. No, rna' am.
Q. Did you actually observe him write the
statement himself?
A. Yes, ma'am, I did.
Q. Did he sign it afterwards?
A. Yes.
Q. Did you observe him to sign it afterwards?
A. Yes.
Q. And did you provide him an opportunity to read
over that statement so if he wanted to change
anything he could?
May I approachMS. TANNER:
(State's Pretrial Exhibit No.
the witness?
A. Yes, ma'am.
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,
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6 was marked for
identification purposes.)
pretrial exhibit number 6 and ask if you can
identify this document?
A. Yes, this is a copy of the written statement
that Rodney Reed made on April 4th of '97.
Q. Okay. And that is·a fair and accurate copy of
it?
A. Yes.
Q. Does that also on the fact of the statement
reflect the Miranda rights that we've
discussed already?
A. Yes, it does.
Q. Okay. And those would be the same rights that
you read to him verbally?
A. Yes.
Q. And does it also include on the face of the
statement a waiver of rights?
A. Yes.
Q. Okay. And what is that waiver, if you could
read that for the record?
I show you what's been marked
,
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Q. (BY MS. TANNER)
THE COURT: Sure.
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offer pretrial exhibit number 6.
(State's Pretrial Exhibit No.
6 was offered into evidence.)
Says: "Piior to and during the making of this
statement I have and hereby waive the
above-explained rights and I do make the
following voluntary statement to the
aforementioned person of my own free will and
without any promises or offers of leniency or
favors and without compulsion or persuasion by
any person or persons whomsoever."
And did he actually inquire of you with regard
to that waiver and y'all talked about the
waiver?
Yes, he did.
And did he indicate to you that ·he understood
that waiver?
Yes, he did.
And then he signed underneath the waiver
indicating that he did understand it, correct?
That's correct, yes.
I.
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MS. TANNER:
MR. GARVIE:
The State would
Judge, I have
an objection to it.
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I would like to question
the witness before you rule on it.
THE COURT: Go ahead. Do you
want to question him now about it?
MR. GARVIE: Yes.
THE COURT: Go ahead.
VOIR DIRE EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Detective Board, you indicated that Mr. Reed
was arrested on a delivery charge; is that
correct?
A. That's correct, yes. I believe it was a
delivery, delivery or possession. Without
referring back to my notes, yes, he had been
previously arrested, I believe for a delivery
of a controlled substance.
Q. At the time of his arrest was he already a
suspect in the stites aase?
A. Yes.
Q. So the officer whomever arrested him knew it
at the time?
A. I would assume so. I'm not aware of who
arrested, but I assume they probably did.
Q. And you had the opportunity to question him
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the next morning?
Yes, sir.
And when you went in to question him, you
knew, of course, that a warrant had already
been issued to obtain samples from him?
Yes.
7 THE COURT: May I make a
8 suggestion? This is voir dire. This should
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not be your full blown cross-examination.
This should just be for the purpose of
developing objections to the exhibit, and if
you want to, go head along those lines.
13 Q. (BY MR. GARVIE) What room were you in, again?
14 A. It was in a -- I don't know if the rooms are
15 marked. It's a room in the investigation
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division of the sheriff's department, an
interview room.
How big was the room?
Gosh, I don't know, it's a fairly small room.
And you and he were the only ones present?
Yes.
Was there anybody outside the room?
Yes, sir.
24 THE COURT: It still sounds
25 as if you're going into your full
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THE COURT: Do you have any
objection to that then?
MR. GARVIE: Not for the
limited purposes of this hearing.
cross-examination. This is not for the
admissibility of this document in the trial,
it's just for the purposes of this pretrial
hearing.
it for the limited purpose of this hearing?
MS. TANNER: I'm offering it
to the Court at this point for the Court to
ultimately to make a ruling on it, and the
Court can't make a ruling until I actually put
it into evidence.
MR. GARVIE: Oh, I thought
she was offering for admissibility. I'm
sorry, I misunderstood the offer being made.
THE COURT: I'll rule on that
at the end of this hearing on the Motion to
Suppress. But right now she wants to get it
before the Court.
You're offering
Number 6 is
MR. GARVIE:
THE COURT:
Go ahead.admitted.
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(state's Pretrial Exhibit No.
6 was admitted into
evidence.)
(state's Pretrial Exhibit No.
7 was marked for
identification purposes.)
DIRECT EXAMINATION CONTINUED
QUESTIONS BY MS. TANNER:
Q. And you indicated that the entire interaction
between the defendant and yourself was
videotaped?
A . Yes, rna "am •
Q. Let me show you States Pretrial Exhibit Number
7 and ask if you can identify that?
A. It's a videotape. It has a date, time, case
number, and State versus Capital Murder, Reed
copy.
Q. And did you actually view that tape earlier
this morning?
A. Yes.
Q. And is that a fair and accurate rendition of
the interaction between the defendant and
yourself on April 4th of 1997?
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admitted.
offer State's Pretrial 7 for purposes of this
hearing.
(State's Pretrial Exhibit No.
7 was offered into evidence.)
THE COURT:· If this ever goes
to the jury, we will want the words capital
murder omitted on that.
For
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The State would
Sure.
Go ahead.
MS. TANNER:
Sgt. Board, throughout the
(State's Pretrial Exhibit No.
7 was admitted into
evidence.)
MS. TANNER.
Yes.
MR. GARVIE: For purposes of
this hearing, I have no objection.
THE COURT: Seven is
THE COURT:
this hearing it's admitted.
understand.
(BY MS. TANNER)
A.
Q.
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course of the time you were with the
defendant, you did indicate that at the end of
the time y'all talked he indicated he wanted
to talk to a lawyer?
Yes.
What was that in reference to that he wanted
to talk to a lawyer?
That was in reference to samples or
voluntarily submitting to blood samples, hair
samples and saliva samples.
You asked him for a consent to provide those?
Yes.
Did he ever indicate to you that he wanted to
talk to a lawyer with regard to the issue of
giving you a statement about the Stacey Stites
case?
No, ma'am.
18 Q. Okay. Was there anything with regard to the
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A.
Q.
A.
statement that occurred that would indicate to
you that the statement was not given freely,
voluntarily and intelligently?
No.
You have talked to the defendant in the past,
as you said before?
Yes.
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MS. TANNER: We ask that the
record reflect that the witness identified the
defendant.
Not relevant to
Yes, ma'am.
It's overruled.
You can answer
MR. GARVIE:
THE COURT:
I'm sorry.
THE COURT:
this proceeding.
And based on your knowledge of him as well as
your interaction with him here on April 4th of
'97, was it apparent to you that he could
read and write the English language?
Yes.
Yes, ma'am, he did.
Okay. And for purposes of identification, do
you see the person in the courtroom today that
you talked with on April 4th, 1997?
Yes.
And can you point him out for us?
Yes, he's wearing the red clothing issued by
the county jail.
(BY MS. TANNER)
the question.
Yes.
And did he, in fact, read portions of the
statement out loud to you?
Q.
A.
Q.
A.
Q.
Q.
A.
A.
Q.
A.
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Q. And did you ask him to come up, or did you
have the jail arrange to bring him up?
A. We had made arrangements for the jail to bring
him up~
Q. SO at that time he was brought up by an
officer?
A. Yes. Either a peace officer or corrections
officer, yes.
Q. SO at the time that he was brought to the
CROSS EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Sir, following up on my questioning here, at
the time you said that were you were in the
interview room over here; is that correct?
A. Yes.
Q. And at that time Mr. Reed was already in
custody; is that correct?
A. Yes.
Q. How did he get to the interview room?
A. He was brought from the jail portion up to the
investigation division, to that interview
room.
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the witness.
MS. TANNER:
28
And we'll pass
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3 Q.
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5 Q.
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29
room, he was not free to leave, was he?
No, sir.
He was, in fact, in physical custody?
Yes, sir.
And also, you indicated that a search warrant
had already been issued to obtain samples?
Yes, sir.
And you knew this at the time that you sat
down to interview him?
Yes, sir.
Did you ever tell him that, that a warrant had
been issued to obtain samples?
No, sir.
Not during the entire interview?
No, sir.
Is there any particular reason why you didn't
tell him that?
I guess because I was trying to see if he
would voluntarily submit to the taking of
those specimens.
Doesn't that seem kind of unfair?
No, sir.
That you know that you're already going to get
the samples?
Yes, sir.
, ., '
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But you're inducing him to tell you that he
would give you the samples?
I don't know that I induced him. I asked him
if he would be willing to voluntarily submit
to giving the specimens I asked for, yes, sir.
And you knew at the time that you did this
interview, of course, it was being taped?
Yes, sir.
Did you tell him that?
No, sir.
You didn't tell him it was being taped either?
No, sir.
And though you knew it was being taped, you
actually asked him about other offenses, did
you not?
What other offenses are you referring to?
Did you initiate discussion about other
offenses on the tape?
19 A. I may have. I know there was some discussion
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Q.
about me having spoken to him in the past, but
as far as any particular case, did I ask him
or question him about, I don't believe so, no.
The tape that has been admitted for the sole
purpose of this hearing, did you put the label
on there?
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31
No, sir, I did not.
Do you know who made that label?
I didn't see the person, but I believe
Detective John Barton did, yes, sir.
Did you ever have custody of the tape?
No.
And you did view that tape in preparation for
this hearing today --
Yes, sir.
-- and your testimony here today?
Yes, sir.
Did the accused admit to any offense?
No, sir, he did not.
And you said that he invoked his right to
counsel?
Yes, sir, after I obtained the written
statement, yes, sir.
Was that immediately thereafter or was there
some more questioning?
No, it was sometime after he gave the written
statement. At the time that he ~equested
counselor thought it might be within his best
interest to obtain counsel was when I was
asking him for consent to give blood, hair and
saliva samples.
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A.
Q.
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32
And he asked to speak to a lawyer?
Regarding the voluntariness of his giving the
samples, yes, sir.
At the time he was -- you were interviewing
him for this particular sta~ement, was he
still within the confines of the jail?
He was obviously still in custody, but, no, he
was not in the jail portion of this buildingII ., 9 per se. He was in the investigative division
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11
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13
Q.
of this complex.
And the words that. were listed in the
statement, were they presented by you or were
those all given by the accused?
14 A. The accused wrote them. I believe he was
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17
asking me questions at the time he was
writing, yes, but the statement was written by
him.
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witness.
MR. GARVIE: Pass the
21 REDIRECT EXAMINATION
22 QUESTIONS BY MS. TANNER:
23
24
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Q. Do you know of any legal requirement that of
you videotape a conversation between yourself
and somebody else that you have to tell that
33
other person?
No, ma'am.
Do you know of any legal requirement that if
there is an outstanding arrest warrant or an
outstanding search warrant you have to tell
them that before you ask for consent?
No, ma'am.
Okay. And in the course of talking about
other cases he asked you a lot of questions
about other cases, did he not?
Yes, ma'am.
questions.
MS. TANNER: No further
THE COURT: Follow-up?
MR. GARVIE: Nothing.
THE COURT: May he be
excused, or do you want him to corne back?
MS. TANNER: I would like to
have him hang around for just a few minutes if
I can.
(Whereupon the witness was
excused from the stand.)
THE COURT: Does the State
34
(Court viewed videotape.)
good place to take a break and let me look at
the video?
(At this time a recess was
taken. )
THE COURT: Okay. I have
seen the entire videotape now, and if you have
any argument in regard to this motion, now is
the time to make it.
MR. GARVIE: Judge, I would
like to recall one of the witnesses.
We'll
We have no
That all we
Sure.
I believe so.
All right.
Would this be a
Does the defense
MR. GARVIE:
MS. TANNER:
THE COURT:
THE COURT:
MS. TANNER:
THE COURT:
MR. GARVIE:
have another witness?
have.
have a witness?
witnesses.
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DAVID BOARD, the witness, after having
been previously sworn, resumed the witness stand
and testified upon his oath as follows:
MR. GARVIE: The witness.
THE COURT: Sir, will you
come back up here and have a seat. He's still
under oath.
RECROSS EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Sgt. Board, do you recall -- obviously you had
a chance to be in here and have actually
viewed the tape that has been submitted for
the limited purposes of this hearing. Do you
recall telling the accused what to put in that
statement?
A. I believe we talked about what he was going to
write. He was apparently unclear as to what I
was asking him, from what he was telling me.
I had to give him a starting point. I had to
explain to him what it was that we were
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do that. Who?
35
II
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Q.
A.
36
looking for and what he was trying to tell us
was and I had to explain to him that was the
information we needed in that statement.
Did you tell him what to put in the statement?
He could have put anything in the statement.
6 I told him. I specifically asked him if
7
8
that's all he wanted in that statement and if
that statement was, in fact, true and
9 correct. He could have continued writing or
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11
12
he could have put what he wanted in there, but
apparently he was unclear as to what he was to
-put in there.
13 Q. Okay. And so you kind of helped him along?
14
15
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A. Yes, sir.
witness.
MR. GARVIE: Pass the
18 FURTHER DIRECT EXAMINATION
19 QUESTIONS BY MS. TANNER:
20
21
22
Q. Do you normally have to give people starting
points when you ask them what y?U want to talk
to them about?
23 A. Yes, ma'am. When I put a blank piece of paper
24
25
in front of somebody and tell them I want
something without -- or want them to do
37
No further
Anything else?
MS. TANNER:
THE COURT:
questions.
something or asking them to do something
without explaining to them, they are not going
to know what to do.
And so it's your general standard procedure to
at least give them the topics that you want to
address, right?
That's correct.
And I believe on this tape it reflects that on
numerous occasions you told him to put
whatever you remember?
That's right, yes •.A.
Q.
A.
Q.
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16 FURTHER RECROSS EXAMINATION
17 QUESTIONS BY MR. GARVIE:
18 Q. Did you specifically tell him to put in there
That's what he told me. He told me that he
did not know the girl. I asked him if he knew
the girl, and he told me, "No."
And did you tell him to put that in there?
Yes, I told him that's what I wanted in the
Did I tell him he had to putstatement, yes.
19 that he didn't know the girl?
20 A.
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22
23 Q.
24 A.
25
38
THE COURT: State?
MR. GARVIE: No.
other evidence or witnesses? Defense.
MS. TANNER: No, Your
I believe the
Judge, my
Pass the
Comments with
He could put what he wanted
MR. GARVIE:
MS. TANNER: No.
excused from the stand.)
THE COURT: Anything else?
THE COURT: Do you have any
THE COURT: That will be all,
(Whereupon the witness was
You may step down.
THE COURT:
MR. GARVIE:
argument, again, this is a hearing on the
Honor.
voluntariness of the statement.
record would reflect that from the testimony
regard to this motion?
sir.
But you did tell him to put that in there.
to in there.
witness.
it in there? No.1
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The issue of what was in the
statement. Obviously, the officer has to give
him some sort of a topic and in this situation
obviously the fact that defendant is in
custody does not make the statement by itself
involuntary. The Court simply needs to look
at all the circumstances, and the
circumstances in this statement indicate that
it was voluntary. He never invoked his
rights, he indicated he understood his rights,
and he, in fact, himself initiated going back
over the rights to make sure he was clear on
them.
of the officer and also from the tape that Mr.
Reed was specifically directed to put. certain
things into the statement, that he was still
in custody at the time and was not free to
leave, was actually brought there by officers
and was at that time under arrest on another
charge, and that the statement was not
voluntary and was obtained in violation of his
Constitutional rights.
THE COURT: Thank you, sir.
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Ma'am?
MS. TANNER: Your Honor,
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the defendant told him he didn't know the
victim and he said, "Well, okay, put that in
there." It would be different if he said, "Now
put it in there whether it's true or not." He
reiterated over and over again just put in
there whatever you know, whatever that might
7 be. Therefore, if the Court looks at all the
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circumstances, the statement is clearly
voluntary.
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comments?
THE COURT: Any other
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MR. GARVIE: No, Your Honor.
THE COURT: I'll overrule the
Motion to Suppress.
Is there another motion the defense
wants me to look at now?
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MR. GARVIE:
have a Motion in Limine.
THE COURT:
se«, Judge, we
Let me get it in
20 front of me so I can see what you're talking
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about.
motion?
Does the State have a copy of that
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Honor.
MS. TANNER:
THE COURT:
Yes, Your
The way I would
41
like to handle it is if there are no
sure I'm ruling on the correct one?
objections to it from the State, it will
look at the one I've got in the file to be,
will you
Do you
Save it,
Well, you
Let me
Let me
Why don't we
Yes.
Thirteen.
Okay.
Okay.
Okay.
Character of the
Let me get it in
Here it is.
MR. GARVIE:
MR. GARVIE:
MR. GARVIE:
THE COURT:
THE COURT:
THE COURT:
The defendant was numbering the
Does it have a number on it? Is it
MS. CLAY-JACKSON:
look for the other one.
number 33, is that·~he one I'm supposed to be
looking at?
find it.
look at that one now or save it?
only have one limine motion for the defendant;
motions.
front of me before we start, though.
save it until later.
Judge, please.
automatically be granted.
do have another one then.
is that right?
complainant, victim impact. Do you want me to
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1 MR. GARVIE:
42
Yes, that's
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it.
THE COURT:
motion is number thirteen.
All right.
It's accused
The
5 Motion in Limine. Let's handle it this way,
6
7
if the State has no objection to it, it will
automatically be granted.
8 MS. TANNER: I have anI·
Ii 9 objection to a few of the specifics in it,
10 Your Honor. Over all I don't have many
11
12
objections to it.
THE COURT: Okay. Let's go
13 down them one at a time. Tell me, please.
14 MS. TANNER: I have no
15 objections to number one through five.
16 THE COURT: All right. Six?
17 MS. TANNER: Number six,
18 part of our burden of proof in this case is to
19 prove cause of death. Obviously, therefore,
20
21
22
we're going to need to introduce pictures of
that nature, and therefore, I'd object to
that.
23 THE COURT: And again, this
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is not a ruling on the admissibility of the
evidence, it's just a request for the
43
attorneys to show the evidence to me before
especially the photographs, I think they
should be shown to the Court before the jury
sees them.
Honor, the problem I have, this is overbroad.
I mean, is it requiring me to show the Court
every single picture of the deceased I
introduce before showing it to the Court. I
MS. TANNER: Okay. I would,
on number eight
THE COURT: Did you have any
objection to seven?
MS. TANNER: No, Your
Well, Your
No, ma'am, the
And in that regard,
MS. TANNER:
THE COURT:
mean --
the jury sees it.
way I would suggest that you do it, is after
the witness has identified it and before it's
flashed to the jury, and after you have
offered it, let me see it at the bench before
I rule on the admissibility of it. There
might be an objection as to-- well, a 403
objection, something like that, and in that
regard I'll grant number six.
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any statement given to law enforcement.
and, of course, since this Court has made the
ruling on the written statement then there's
any third person not in law enforcement since
Eight?
Statements of
Number eight
I think I just
Okay.
As far as the
There's one that we
But the problem I have
MS. TANNER:
MS. TANNER:
MR. GARVIE:
THE COURT:
THE COURT:
Are there other statements that you
might be aware of that she might possibly try
no need to.
law enforcement perhaps.
However, I object to any statement given to
provided them with.
Honor.
with this is any statements to third parties,
eight.
statement as well, you may refer to them, and
received one, just recently, Judge.
written statement and this videotaped
the Miranda and voluntariness is not relevant,
with regard to the statements of the accused,
I have know objection to approaching prior to
that won't be subject to this request number
to introduce?
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need to address, that a limine would address,
the issues of Miranda and voluntariness are
obviously no present if it's a statement to a
non-law enforcement individual.
MR. GARVIE: Obviously,
there are other evidence grounds that would
apply in that instance, Judge. Again, it's a
Motion in Limine .. It doesn't say that they
can't do it. All it asks is that it is
presented to the Court first.
THE COURT: Do you know of
some statement to witnesses who are not law
enforcement.
MS. TANNER: Yes, I do, and
those have been provided to the defendant.
THE COURT: Would it be time
consuming for the Court to look at those
before the jury hears it?
MS. TANNER: Well, that ball
is in the defense's park. I would think so.
THE COURT: I would rather
take the time to do that. I don't want to
THE COURT: Do you want to
The issues that weto non-law enforcement.
comment on that?
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46
look at those statements and see if there are
Court six times with every witness.
witness's testimony.
jury, but I don't want to get in a situation
Let me
A couple.
The problem I'm
A couple.
Oh, no, I would
THE COURT:
MS. TANNER:
THE COURT:
MS. TANNER:
That's the general gist of
will affect? Number 8?
want to do it at the beginning of that
How many witnesses do you think this
any valid objections before the jury hears
understand there are certain things that need
to be taken up outside the presence of the
where we're running back and forth with the
the motion I'm having a problem with. I
and I think that is going to be inordinately
to the Court first before we get it to a jury,
of in general the areas I'm objecting to are,
having, Your Honor, is that this motion, sort
time consuming.
it almost is asking us to try our entire case
have to try this case a second time, and if
to rule on them before the jury hears it.
there are legitimate objections, I would like
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47
to number 10?
THE COURT: May we move along
Do you have objections to nine?
MS. TANNER: Number 9 I
would simply like to limit that to any
eyidence seized from the defendant as opposed
to anyone else. He obviously doesn't have
standing to contest any evidence seized from
anyone else.
THE COURT: Do you want to
comment on that or explain that request?
MR. GARVIE: Judge, at this
time I don't have a problem with that.
Obviously, if it becomes necessary to object
to something like that, we would present that
objection at that time.
THE COURT: Nine is denied.
MS. TANNER: And obviously
the serological evidence that was obtained
from the defendant, that has already been
litigated.
Okay.
I will grant
MS. TANNER:
THE COURT:
eight.
those them.1
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48
was looking for, Rule 603 -- 602, where a
witness is required to state matters within
dire provision for laywitnesses and,
therefore, it is overbroad with regard to that
aspect of it.
problems with number 10. Number 11, I have no
objections to most of it. Any opinion offered
by psychiatrists, psychologists or other quote
what I would hear is an objection at the time
the question is asked in the trial that this
witness is not qualified to answer such a
question, and it may be necessary for me to
test those qualifications at that time or pass
the witness on voir dire.
I do
Normally
Yes. No
Let me go ahead
Judge, what I
J~dge, can we
Yes.
Do you want to
MS. TANNER:
Rule 705 does not ~nclude a voir
THE COURT:
laywitness.
expert, I have no objections to that.
object with regard to the issue of
MR. GARVIE:
and make a response to that.
comment on that one, sir?
MR. GARVIE:
come back to that one?
THE COURT:
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49
their personal knowledge, we are entitled to
voir dire a witness on their personal
knowledge if they begin to make statements to
that effect, that are not within their
personal knowledge.
6 THE COURT: Is this talking
7
8
about any opinion that they might have?
instance, he was drunk, she was drunk.
For
9
10 have --
MS. TANNER: The problem I
11 MR. GARVIE: Okay. I see.
12 I'm sorry. Let me withdraw that.
13 THE COURT: This is not a
14 fact question, this is expertise.
15
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17
MR. GARVIE:
that one, as to laywitnesses.
THE COURT:
I'll withdraw
Yes, otherwise
18 it's granted as to the other experts. I'm
19
20
21
going to make a note it's modified on the
record.
Number 121
22 MS. TANNER: I have no
23 objection to twelve through fifteen.
24
25 granted.
THE COURT: They are all.J
50
trial.
reference to the scientific evidence or the
results of those scientific evidence until the
wrong, please correct me, but I think what
I think
And the last
Judge, all
I'm going to deny
Do you want to
MS. TANNER:
MR. GARVIE:
THE COURT:
THE COURT:
The concern I have with regard to
or reference to any scientific evidence tests
one is number 16, that refers to any evidence
number 16 is it's so overbroad that it could,
admissibility has been established.
or other results of such tests until
admissibility has been established.
16 and let you save it for objections at
we're asking here, it's pretty obvious that
science.
Kelley Hearing is no longer required as to the
DNA type evidence and it's been held that a
they're asking for is a Kelley Hearing on the
what they are asking for here, and if I'm
opening statement.
in fact, hinder our ability to even make an
what we are asking here is that we don't make
comment on that, sir.
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51
I have ruled on all of that motion
and I'll sign the order that's attached to
it.
State's Motion in Limine and State's Motion in
Limine Regarding Expert witnesses as well.
THE COURT: will you look at
this and make sure I'm looking at the right
We do,
Other than the
We have a
Yes, and there
Again, we will
MS. TANNER:
MR. GARVIE:
MS. CLAY-JACKSON:
THE COURT:
Is this it.one?
other motion that we will carry with us
forward, Judge, the other motion in limine, I
think that concludes our motions.
THE COURT: Okay. Now the
State has a Motion in Limine and also a Motion
for Psychiatric Examination.
Judge.
MS. TANNER:
is a second one further back.
THE COURT: Okay. Earlier?
MS. TANNER: More recent.
THE COURT: Do you have a
copy of that motion in front of you?
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handle it the same way, if the defendant does
not have any objections to those requests,
they will be granted, beginning with number
one.
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the other one?
MR. GARVIE:
THE COURT:
We are going to
Well, it's a
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21-paragraph motion and about a three- or
four-page motion.
10 MR. GARVIE: Judge, for
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purpose of convenience, might we address the
Motion in Limine Regarding the Expert
Witnesses, first?
14 THE COURT: Certainly. Let
15 me get it in front of me. Okay. 'I have it in
16 front of me now. It's styled State's Motion
17 in Limine Regarding Expert witnesses. And
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again, does the defendant have any objections
to it?
20 MR. GARVIE: For the record,
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Judge, I think we are both entitled to do
that. We don't have any objection to it.
23 THE COURT: Okay. I'll grant
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that motion. There is an order attached.
I'll sign it now.
53
Do you want to refer now and consider
of that is you need to let the Court consider
what it's asking for, in general.
refer to interrogation or concerning -- well,
Those
Do you
Yes, Your
First of all, I
That's my
My interpretation
Not to mention
It's extremely broad in
MR. GARVIE:
MS. TANNER:
THE COURT:
THE COURT: Go ahead.
MR. GARVIE: With respect to
again, first of all, it's
broad in what it asks for.
et cetera et cetera.
Honor.
the other state's Motion in Limine?
have a copy of it?
MR. GARVIE: Yes, judge.
have a general objection to the Motion in
Limine in style, and that is it's extremely
it before the jury hears it.
THE COURT: Again, take your
time and let me know if you have any
interpretation of that lead-in paragraph. Do
you agree, ma'am?
item number one
objections to any of those requests.
you do not object to I will grant.
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1II',
rIr·' 1 extremely broad. The statements that
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defendant made to any witnesses or to law, .
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3 enforcement. And also it restricts our( ..
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ability to rebut statements that the
prosecution may suggest that the defendant
made.
II:
7 THE COURT: It may be too
, .il
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early for to you tell me, but I would expect
this to come when you present your evidence,
if any, and if at that time you produce
witnesses who are going to testify about
statements made by the defendant, I think I
13 should hear those first. That's what the
rI·
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State is requesting, right?
MS. TANNER:
Honor.
THE COURT:
long.
MR. GARVIE:
Yes, Your
It won't take me
That is only as
20 to the presentation of our evidence?
21 THE COURT: I don't expect
I,
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the State to put on any witnesses saying your
client told them anything exonerating him in a
statement --
25 MR. GARVIE: The problem is
55
and self-serving, which it would be.
ability to cross-examine witnesses. For
rights to cross-examine the witnesses.
Y or Z, they approach the Court first because
All I'm asking
Judge, the
I don't want to
I don't think
MS. TANNER:
MR. GARVIE:
THE COURT:
THE COURT:
problem again is that it unduly burdens our
"Yes," you approach the bench and you tell me
that it unnecessarily restricts the accused's
example, you could have two people who were in
it's going to be burdensome, and I think it
is if they are going to ask one of our
All you have to do is ask the witness, "Did
do that at all.
we would have an objection that it's hearsay
may be exculpatory to the defendant.
witnesses, well, did the defendant tell you X,
would be prudent for the Court to grant this.
State wants to present, and we have no ability
the same location and heard something that the
to ask the other person what they heard that
this courtroom?" And if the witness says,
the defendant make a statement to you outside
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at that time if you want to have a hearing
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outside the presence of the jury.
of you request it, I'll grant it.
grant that limine request number 1.
If either
Let me
Does the
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state have any objection with that procedure?
MS. TANNER: That's fine.
THE COURT: One is admitted.
8 Let's move on to two, if we may. Number two.
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One is granted.
Garvie.
Okay. Number two, Mr.
11 MR. GARVIE: Again, once
12 again, I would object to this statement. It's
13 unduly restricting his right to a fair trial.
14 It's extremely broad. Any prior statement by
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any witness that, of course, includes state
witnesses.
17 THE COURT: Do you want to
! 'I,
18 comment on that? I certainly don't want to
19 restrict the defendant's cross-examinations.
20
21 Your Honor.
MS. TANNER: Absolutely,
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I have no objection to them
impeaching witnesses with any prior statements
that they may have made, that being prior
inconsistent statements or prior consistent
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statements for purposes to rebut recent
fabricat~on. The problem I have is if the
witness has given a statement in the past, I
couldn't bring that statement in and put it
on. They would object,' I assume, and they
would have a valid objection. I ask that that
same rule apply to them, that they not be
allowed to introduce actual statements of
witnesses that have been given outside of
Court because those are obviously hearsay. I
am asking that they approach the bench before
any intent to just do that. I am in no way
attempting to hinder their ability to proper
impeachment.
MR. GARVIE: The problem is
what I don't understand is what counsel is
terming "proper impeachment." Again, it
sounds as though counsel intends to duly
rest~ict our ability to cross-examine
witnesses. If you put the label on it proper
impeachment, obv~ously that's open
objectionable.
MS. TANNER: The rules of
evidence say what is proper impeachment. You
can impeach with a prior inconsistent
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statement, you can impeach with a prior
consistent statement to rebut a claim of
3 recent fabrication. That's what I'm talking
4 about. I have no objection to them doing
5 that. They can do that. The problem I have
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is them just trying to blanket introduce a
hearsay statement for substantive evidence.
That is not permissible.
9 THE COURT: And if you read
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this request number 2 carefully, it says
unless the statement is proper impeachment.
That wouldn't apply to that if it is proper
impeachment.
MS. TANNER: Right.
THE COURT: I'm going to
impeachment evidence is not covered by thatII
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grant number two. Anything that is
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paragraph.
May we look at number three?
20 MS. TANNER: I think three
21 and four pretty much go together.
22 THE COURT: Normally this is
23 done outside the presence of the jury.
24
25 required by law.
MR. GARVIE: I think that's
59
the defendant?
okay.
THE COURT: That's okay with
MR. GARVIE: Okay.
THE COURT: Five is granted.
That's
I think that's
Seven is
It's sort of a
Do you want to
MR. GARVIE:
Six?
MR. GARVIE:
THE COURT: Yes, sir, I
believe so. Six is granted.
Seven?
THE COURT: Three and four
are granted. Paragraph five?
MS. CLAY-JACKSON:
within the rules.
awfully broad.
MS. TANNER: That's
precisely what it is, Your Honor. Obviously,
there are extremely limited circumstances
under which the defendant can do that, and I
would like to approach beforehand.
THE COURT: I'm going to play
THE COURT:
generalization of the rule.
comment on that?
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MR. GARVIE: I think the
attack her character, let me hear about it
before the jury does.
both encompass the rape shield law.
I
I certainly
No objection.
That goes
Right.
Ten and eleven
I think that
If you intend to
I'm going to
MR. GARVIE:
MR. GARVIE:
MR. GARVIE:
I
MS. TANNER:
MR. GARVIE:
THE COURT: Nine is granted.
THE COURT: Twelve?
THE COURT:
Number eight?
Nine?
Ten?
THE COURT: Eight is granted.
it safe and grant that one.
asking you to approach the bench first.
one is kind of broad, Judge.
without saying.
grant ten and eleven. Again, there may be
some way to get that in. All this is doing is
understand.
rules provide for that, judge.
would like for it to be subject to the rules,
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obviously.
MS. TANNER: Absolutely.
THE COURT: And I would,
4 too. I'm going to grant twelve. The rules
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provide that you may elicit that testimony.
All the State wants to do is have the Court
7 hear it first. I would like to make sure
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those questions are asked in good faith, etc.
So twelve is granted.
Thirteen?
11 MR. GARVIE: Okay.
12
13 granted.
THE COURT: Thirteen is
It would not be appropriate a~ that
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stage of the trial.
Fourteen?
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MS. CLAY-JACKSON:
and fifteen, they are fine.
THE COURT: Okay.
both granted.
Fourteen
They are
20 MS. TANNER: Fifteen is a
21 little bit moot. It was a voir dire one.
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THE COURT: Okay.
Was there a polygraph exam.
Sixteen?
24 MS. TANNER: Not of this
25 defendant, but of witnesses' there was.
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THE COURT: Okay.
MR. GARVIE: Granted as to
the motion in limine.
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THE COURT:
sixteen is granted.
Seventeen?
MR. GARVIE:
All right.
I have some
8 concern about seventeen. Obviously, it would
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apply more to punishment than anything else.
THE COURT: Yes.
MR. GARVIE: I'm concerned
about the number of restrictions being placed
on our ability to question witnesses.
14 THE COURT: Well, as far as
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seventeen is concerned, the defensive theory
in this case is that your client did not do
this, I wouldn't think there would be any
evidence of any remorse by any witness
whatsoever in the guilt/innocence phase of
this trial.
21 MR. GARVIE: This only
22 refers to punishment, I'm certain.
I.. ,
23 MS. TANNER: Yeah, I
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certainly can't imagine that at
guilt/innocence.
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THE COURT: At punishment
that is a valid issue for the jury to
consider.
remorse is, and I totally agree. However,
there are cases that say that has to corne from
the defendant, and that's all I'm citing to
here.
THE COURT: All right. Let's
carry it. If it's all right with the
defendant, I'll carry it along to the
punishment hearing if and when that starts.
Number eighteen? You don't object to
number eighteen, do you?
No objection,
The issue of
I need to see
MS. TANNER:
THE COURT:
MS. TANNER: I can get
Perhaps we can carry this one.
sir.
that.
those.
MR. GARVIE:
Eighteen is granted.
Number nineteen?
Let me mention something else that
you have been faithful about so far, and that
is I don't think the jury is supposed to be
told the effect of a hung jury; that is, if
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State what they are looking for.
hamstrings the defense's ability.
testimony or evidence that could be recently
have nineteen, include that in your argument.
Any
Twenty-one
Okay.
What I'm
I would like to
Okay.
Let me ask the
Sure.
We have no
MS. TANNER:
THE COURT:
again, the problem is is that it
MR. GARVIE: I have no
objection to that.
THE COURT: Nineteen is
granted.
Twenty?
MR. GARVIE: If I might,
they cannot reach a result.
THE COURT:
MR. GARVIE:
objection to twenty-one.
THE COURT:
Judge, can I address twenty-one and come back
to twenty?
looking for in that particular one, Judge, is
that was a response to their motion that we
is granted.
Twenty, the last one.
MR. GARVIE:
construed
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kind of a different ma~ter, Judge.
THE COURT: If we get to
punishment, I expect the defendant to request
the jury to give him a life sentence instead
case law that says that they can't ask the
jury for that. As I said, this was addressed
in their previous motion when they requested
to be able to do that, and the Court denied
the motion. This is simply sort of the same
thing just in my motion.
heard some time ago with regard to them being
permitted to put on witnesses to talk about
the affect of the death sentence would have on
their family and things like that, and the
Court denied that motion based on the case law
that that was not an appropriate area for
testimony. This motion is simply a
reinforcement of that ruling by the Court.
That's all we're seeking.
THE COURT: I expect the
defendant to make a plea to the jury for a
certain sentence, if we get to that stage of
the trial.
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MS. TANNER:
MR. GARVIE:
There is the
I think that is
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of the death sentence, and that's -- certainly
is predictable.
3 MS. TANNER: Okay. Well,
I 4 I'll tell you what. I'll withdraw twenty, and
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I think that the motion they have on file will
be adequate.
7 THE COURT: Okay. It's
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withdrawn, then. Does that take care of all
the State's limine motions?
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MS. TANNER:
Honor.
Yes, Your
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THE COURT: And there is an
order attached and I'll sign it for you.
14 THE COURT: The last motion
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is in regard to the psychiatric evaluation; is
that correct.
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MR. SANDERSON:
correct, Your Honor.
That's
Ii·
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THE COURT: Let me get it in
front of me before we talk about it, please.
Do you have a copy of it?
I1·
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MR. GARVIE:
Honor.
·THE COURT:
that recently?
Yes, Your
Did you just file
67
objections to it?
THE COURT: Okay. I have it
in front of me now. Would you just briefly
tell me what the motion is about?
MR. GARVIE: Judge, I have
several objections to it. First of all my
objection to the motion itself and its
corresponding affidavit. The affidavit that
is attached to this motion purports from an
investigator involved in this case saying that
in part the basis of this is that in essence
she talked to somebody that talked to an
it's pretty self-explanatory. Basically what
the current case law says is if the defense is
going to sponsor an expert witness, that is an
evaluation on the defendant on the question of
future dangerousness then the State also gets
to evaluate the defendant with its own expert
to be able to have evidence for rebuttal
purposes, and I have attached an excerpt from
that case to provide the Court with the law.
THE COURT: Do you have any
A couple of
Yes, Judge,MR. SANDERSON:
MR. SANDERSON:
days ago, Judge.
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investigator who said. That amounts to double
hearsay. As far as the affidavit, there is no
basis for this motion. The State is alleging
that the defense intends to introduce
psychol~gical testimony on future
dangerousness. Obviously, the State has no
way of knowing what we intend'to do, if we get
to that point, and it's certainly not relevant
at this point.
Additionally, I might add, the case
that counsel has referred to specifically says
in several points that if the defense plans to
introduce or introduces evidence on the issue
of future dangerousness. As the Court is
aware, if we got to punishment, there is two
issues, including the mitigation issue, when
is separate and a part from the first issue.
The State in it's motion argued that we
inquired about differ jurors about
psychological testimony and we discussed that
-- when we were discussing special issues
number one and number two. As the Court is,
of course, aware, on the questionnaire, there
was specific questions about mental health and
we responded simply to the questions that were
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posed there because the jurors expressed their
feelings about mental health and whether it
could be used for or against the accused in
each instance.
Additional grounds, as far as any
reports or anything like that, even if that
were being done it would not have been
completed at this point, obviously, because
we're not in the stage of punishment and we're
quite some way away from there, if we ever get
there. Additionally, if at some point we were
to get to punishment and it became necessary
to present an expert on the issue of
mitigation, I don't think future
dangerousness, but if we did, just for the
sake of argument, the State in punishment,
from what we can tell of their witness list
intends to call about fifteen experts.
Certainly, if it became necessary to do that,
their expert would have the opportunity to
examine the accused if the State so ordered.
THE COURT: At that time?
MR. GARVIE: Yes, sir.
THE COURT: Wouldn't that
delay the trial?
70
If
Well, let me
No, sir.MR. GARVIE:
is, this motion as presented assumes there
will be a conviction. Obviously, neither of
us knows that we will get to the punishment
stage and we certainly don't know what
witnesses we' intend to use for the punishment
stage at this time, including any experts.
But the case law specifically relates to the
issue of future dangerousness. Even in the
State's affidavit in their motion they say
that the affidavit suggests something about
MR. GARVIE:
continue if I might.
THE COURT: Go ahead.
MR. GARVIE: The other thing
there are quite a few witnesses that the State
would be calling at that stage, and obviously
we would be calling several witnesses, too.
THE COURT: But we need your
client present for the trial. I can't have
him off in a doctor's office at the time the
trial's going on. It just appears to me
logically that if the State needs that type of
evidence for rebuttal, now would be the time
to have him examined.
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ask the defendant what they are going to do.
me. Let me see if there are any other
mitigation, but there is no evidence at all
that would support this type of motion.
that I read of this case that is attached to
the motion, it appears to indicated that the
defendant refused to cooperate with Dr.
Coontz.
He did in
Well, my
It seems fair to
The little bit
I'm not going to
MR. SANDERSON:
MR. SANDERSON:
THE COURT:
THE COURT:
THE COURT:
that case, Judge, and I don't know if that
would be the issue here or not, but in the
event that that is,the case here, then the
motion provides a sanction which is not
letting the defense expert testify, which is I
think, reasonable, and the defense can make
this entire motion moot right now, Judge, by
saying they are not going to call anybody.
point is we have to presume on the basis that
they are going to in order to be ready, and
we're just asking the Court to follow the
law.
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will notice that we don't even get to see the
results of the examination unless it becomes
ripe.
nothing presented for the Court to even
consider a motion like this at this point.
MR. SANDERSON: Judge, this
opinion says absolutely nothing about the
State having the burden of proof here. All it
says is that if the defendant plans to call
that type of evidence. And we have plenty of
suggestions so far to think that that will be
true.
The Court
There are no
I understand.
MR. SANDERSON:
MR. GARVIE:
The only purported suggestion is
objections to it.
suggestions.
THE COURT:
Any other objections to it.
MR. GARVIE: Again, Judge, I
would ask the Court to review the opinion.
The opinion clearly says that if we intend to
introduce or plan to introduce future
dangerousness expert testimony, there
certainly would have to be something presented
as evidence toward that end, and there is
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an affidavit that's based on double hearsay
from the State's own witnesses.
-- I'm going to overrule those objections.
I'll grant the Motion for Psychiatric
Evaluation. I would assume that there are
rules that are going to have to be complied
with by the psychologist, and if they are not,
then that evidence would not be admissible.
Especially about advising the defendant of his
right that this may be used in Court against
because of the rules that the State is not
privy to what the defendant's evidence will be
at the punishment hearing if we get to that
point in the trial.
MR. GARVIE: Judge, I forgot
to say one thing. I'm also concerned that it
forces the defendan~ to give up his right to
counsel in the manner the State has requested
since counsel cannot be present. It also
forces the accused to give up his right again
self-incrimination under the U. S.
Constitution and Texas Constitution.
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THE COURT:
allow the State to do this.
THE COURT:
I'm going to
One reason is
Right. And those
74
record?
whether or not the examination has been
State's witness list he can discuss with the
interview, and that's what I'm concerned
If the Court
Right. And atTHE COURT:
MR. SANDERSON:
Those are the only two bits of
Any other motions or comments for the
process.
information we get to know until at which time
defendant cooperated during the examination
MR. GARVIE: Your Honor, I
psychologist will not be allowed to reveal to
us any information, other than number one,
the defense sponsor's their expert witness.
that time we take a recess, and if both sides
completed, or number two, whether or not the
counsel will simply look at the order, this
will simply look at the order, if the defense
about.
nevertheless, obviously because he's on the
release the contents of the report, but
state what he may have obtained during the
have a comment for the record. In looking at
him.
Court to present, it says that he's not to
this motion, the order they're asking the
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course, Judge, the problem is, it assists the
state in getting a look at whatever defense we
so. I think they are only going to get to
know whether or not he cooperated with them
during the interview; is that right?
want to look at his report you can do it. But
at that time we may have to take a break in
the trial for hour or two or half a day,
to call Dr. Reynolds as witness to verify
that, that he didn't violate this order, you
can certainly do that before this trial is
finished.
That's
And then, of
Well, the
And if you want
I d on' t think
MR. GARVIE:
MR. GARVIE:
MR. SANDERSON:
THE COURT:
THE COURT:
If he questions the accused in
It's clearly set forth in the order.
even.
right.
problem, Judge, is if, of course, at some
point we were to present a mental health
expert, this order specifically gives the
entire report over to the State, and that may
may apply.
this case.
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I.! " 1
76
include aspects of our defense.
2 THE COURT: Your expert's
3 report; is that what you're talking about?
4 MR. GARVIE: No, Dr.
5 Reynold's report. If you look at item five.
6 THE COURT: If they need his
I,."I·
7
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9
testimony and the door is open, so to speak,
then they have the right to see his report,
and so does the defendant at that time.
10 MR. GARVIE: But, Judge, the
11 problem is what are the limits of what the
12 doctor can ask him? I mean, can he go into
13
14
all the specifics of our defense and what we
intend to do at trial and all that kind of
15 stuff? I mean, theoretically it's broad
16 enough to allow that. There are no parameters
17 for what the doctor is asking him about.
18 THE COURT: That's right,
19
20
there are no parameters" as long as it has to
do with his mental health.
21 MR. GARVIE: And at some
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point, obviously, well, the doctor may
consider that the circumstances of the defense
may be important, but what I'm saying is,
ultimately the State could have that entire
77
allow the state to do that, and I'll grant
that motion and overrule the objections. Do
you have anything else?
information including anything that he may
have said about our approach to the case.
THE COURT: I agree. I
agree. I still think it's a good motion. Do
you have any other comments?
we will, once we find out from Dr. Reynolds
when he can do this, we'll notify defense so
if they want to be present outside the room
for consultation in and out, they can do
that. Furthermore, we understand from Dr.
Reynolds' own schedule that he will not be
available to do this until -- I think he's out
of town now and won't return until Sunday, so
the actual time in which this evaluation will
take place will have to be either after the
courtroom hours or on weekends so that it will
not interfere with the courtroom process.
THE COURT: How long do you
think it will take him to do that?
MR. SANDERSON: Your Honor,
No, sir.
I'm going to
MR. GARVIE:
THE COURT:
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78
maybe Dr. Reynolds could do interview the
that, Judge, because it would help get us
wrapped up for next week.
THE COURT: Okay. Let me
ask, what are your intentions about Fridays
If
Well,
Judge, I
I would
We have one
I would request
Okay.
Several hours.
I was thinking
MR. SANDERSON:
MS. TANNER:
THE COURT:
THE COURT:
THE COURT:
Do you have witnesses scheduled
It's sort of up to counsel.
There's no problem there.
don't know.
during trial?
next Friday?
selection.
MR. SANDERSON:
think several hours.
MR. GARVIE: But, Judge --
week.
we've taken Fridays off during jury
witness who can't be here any day next week
but Friday, but if the-Court is entertaining
at all the possibility of giving us Fridays
off, that witness can be here the whole next
you want Friday off --
MR. GARVIE:
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i
79
mentioned, we have one witness that absolutely
cannot be here, and she is one of our very
last witnesses who simply can't be here until
Friday of next week or the next, so if we need
to, we may have to request the Court on
Thursday to recess a little early.
THE COURT: I'm generally
easy to get along with once we get into trial
because I know other people have important
schedules, too, and I'll cooperate with the
State and the defendant for scheduling
defendant next Friday.
MR. SANDERSON: That's a very
real possibility. We'll certain discuss that.
THE COURT: Let's plan that
then next Friday so that they wouldn't have to
do it in the evening. I would imagine the
defendant would be tired, too, after a day of
trial, and so would Dr. Reynolds. Let's plan
on next Friday, then, for Dr. Reynolds, if it
fits his schedule.
Do you have any other comments for
the record?
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MR. GARVIE:
MS. TANNER:
No.
I have, as I
80
1998, at 9:00 o'clock.)
you Monday morning at 9:00 o'clock.
(At this time a recess was
taken until Monday, May 4,
No, Your
We have nothing
MR. SANDERSON:
MR. GARVIE:
THE COURT: Okay. We'll see
Just let me know ahead of time if
Okay? Do you have anything else
Honor.
witnesses.
further.
today?
you can.
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81
1 STATE OF TEXAS
2 COUNTY OF BASTROP
3 I, Carolee Murray, Official Court
4 Reporter in and for the 21st Judicial District
5 Court of Bastrop County, State of Texas, and Notary
6 Public for the State of Texas, do hereby certify
7 that the above and foregoing contains a true and
8 correct transcription of all the proceedings (of
9 all proceedings directed by counsel to be included
10 in the Statement of Facts, as the case may be), in
11 the above styled and numbered cause, all of which
12 occurred in open Court or in chambers and were
13 reported by me.
14 I further certify that this
15 transcription of the record of the proceedings
16 truly and correctly reflects the exhibits, if any,
17 offered by the respective parties.
18 WITNESS my hand this the 30th day of
19 April, 1998.
20Carolee Murray
21 Official Court Reporter335th Judicial District
22 Certification No. 1938Expiration Date 12-31-98
23 P.O. Box 2441Brenham, Texas 77834
24 (409) 277-0707
25 Taxable Court Cost:
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~or to and during the making.of.this-voluntary statement. I have and hereby waive the above explained rights and I do make theUowing voluntary statement to the:aforementioned person of my own free will and without any promise of offers of leniency orIVOrs. and withoutcompulsicn III persIl3silln-by-anyperson or whomsoever.
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