1.Pending Motions Hearing

MR. JAY: Your Honor, for the record, I'm having Madam Clerk mark A, B, and C for identification purposes for this hearing.

A is a copy of the defendant's statements that she made on body-worn camera to Deputy Sheriff Kayla Rodriguez on February 24th, 2020, as well as the interview that she provided to Detectives Koepsell and Lowen on February 24th, 2020 and February 25th of 2020. It is an identical exhibit as to what was provided to the Court for review in chambers as a courtesy before the motion to suppress statements, as well as what is entered into evidence for that motion to suppress statements hearing that was held.

State would move A for identification purposes in as 1 for the purposes of this hearing.

MR. JAY: Your Honor, this is a motion in limine. We are asking for a pretrial ruling based on the proffered statements that the defendant has made, which should -- in good faith and reliance, the State should be able to assume that that will be her testimony at trial, given that her latest version of events was just given to our expert last week.

So we are asking for a pretrial ruling on, if that is the evidence that comes in at trial, will she get a self-defense instruction? Will she be able to then open the door to all the things that come with self-defense, such as reputation evidence of the victim for being violent, which she may or may not be aware of that is not required under the law, or prior instances of violence between she and the victim or the victim and anybody that she is aware of, because that goes to the reasonableness of her perception of an imminent threat of death or great bodily harm.

We are not asking to not be allowed to talk about these things during voir dire. The defense cited numerous cases and spent some of their time in their response about the ability to voir dire that. That was not the purpose of our motion, and I don't think we mentioned voir dire, because we understand that the defendant can, like any other witness, change her story again. So we understand that we both, on both sides -- and we intend on spending a great deal of time on it as well for the State of Florida. We need to explore these issues during jury selection.

But what we are asking from the Court now preliminarily is, if that is what the defendant is going to say in trial -- and I'm not asking the Court to make any credibility determinations about one version or another. We're asking you to treat this just like a (c) (4) motion or a motion for summary judgment ina civil case. If this is what she says, does this amount to what they are asking for legally? And it's the State's position under the case law, that no.

Because under her statements that she gave to the experts, there was no overt act taken by the decedent on that day. There was no overt action, and that's what's required under the law to trigger her response of acting in self-defense. There was nothing creating an imminent fear of death or great bodily harm to her until she committed two forcible felonies and a non-forcible felony.

What her testimony was, is we were having a good day. Now, what's different -- and, again, we don't -- we're not asking you to make a credibility determination about what's different, but what is different than what you had heard at the motion to suppress is, We were having a good day, but I'm on edge every day because of past instances of violence, including an instance the night before, but we were having a good day. We're out on the porch. There's a dart board out there. There's puzzles that we're doing. We're doing arts and crafts. We're doing everything to keep him preoccupied so he doesn't get sad or upset. Interjecting with some phone calls to his family, which she knows would potentially upset him, but that's her testimony.

And then eventually it comes to a point in time where they're sitting on the couch and he reaches over to her and says, Tag, you're it. And she apparently runs up to the shower to hide and he apparently gets into the suitcase to hide, and it's not clear who's it. Eventually she comes down out of the shower after she says she was getting cold up there and sees him in the Suitcase and zips him up. And at the time that she Zips the suitcase, what she describes is nearly entirely shut, but two fingertips could get out. Mind you, a 103-pound man, two fingertips. They're laughing. It's all fun and games still. There's still no overt act taken by the decedent during this entire calendar day to put anybody in reasonable fear -- objectively reasonable fear of imminent harm, of great bodily harm or death.

And it's only when he begins to say, after she has zipped him up into the suitcase -- and, again, she's saying that she did not have mal intent at that time. When he starts to say, I cannot breathe, now she describes to the doctors that she does have bad intent and she wants him to feel what she has felt in the past. She gets angry is her description. She shakes the suitcase. She beats it. It falls over. It flips over. And he sticks his fingertips out, she hits him with a bat. So she's now the initial aggressor. And we'll discuss jury instructions as we get closer, but she's the initial aggressor, and she has now committed forcible felonies; aggravated assault and aggravated battery.

Stating that, I only intended to keep him in there for a couple of minutes, I believed he could get out. She never perceived, according to her, that he would die or face great bodily harm. And she just goes upstairs knowing now he's mad because she won't let him out, now because of the actions she took as the initial aggressor, she is facing death or great bodily harm from the decedent if he gets out. And she completely expects him to get out because her testimony is that he could get two fingertips out of the zipper.

So, Your Honor, under the law, the State understands -- we are deeply, deeply thoughtful about this request because of the risk of error, but this is just one of those cases, like the cases the State cited, there is no self-defense if that is what her testimony is. And, therefore, the jury should not hear about any prior instances of violence, any reputation evidence, any battered spouse syndrome unless and until there is testimony that is self-defense that's recognized under the State of Florida's laws.

So what we are asking for is a ruling that if -- and this is a motion in limine, and a motion in limine is, Hey, this is what's proffered to the Court prior to trial; if this is what comes in at trial, this is the Court's preliminary ruling, unless something changes. What we are asking for is a preliminary ruling that, if that is what her testimony is, then we should not be allowing introduction of past instances of violence, reputation for violence --

MR. JAY: -- or battered spouse syndrome evidence.

And, furthermore, what the case law supports is our request that, clearly, this evidence can only come from her. There was nobody else in the apartment -- or townhouse that night, so she should have to testify before any of those things come in, and she -- her testimony should meet the requirements of an overt act before any of this testimony comes in. It should not be allowed to come in prior to her testimony.

And under the case law that the State cited, it's not unfair, it's not forcing her to testify. She chose to raise battered spouse syndrome. The State completely understands we have the burden of disproving self-defense beyond a reasonable doubt, but what the case law says is, we shouldn't have to combat this. We can't put the toothpaste back in the tube until she actually puts forth the self-defense that justifies all this.

So that is our request. We are not making any requests about voir dire because, we understand, she can come in and testify differently yet again at trial, and that's a discussion we'll have to have as well about how that will occur. The State's position is, is that if she changes her testimony yet again, she should have to give a narrative testimony. No attorney should be allowed to participate in putting forth new testimony about the events of February 23rd.

Thank you.

MR. JAY: Yes, sir.

This is procedurally correct. Parties are allowed to get motions in limine based on the proffers of evidence that have been made prior to trial. Apparently, opposing counsel has not read the depositions or -- he clearly didn't attend them because he was not there, but the Court has before it the statements that Sarah Boone made when directly asked, What happened that day? What happened next? And there was no overt act taken by the decedent on that particular day.

What they want to do and what is not permissible under the case law that I have cited -- in particular, the one that says, you get a threatening text and then two days later you can't go slit somebody's throat because of the threatening text two days earlier. Not to dehumanize Mr. Torres at all, but to give you this analogy, if somebody owns a bad dog and that bad dog bites, and that bad dog has bitten in the past, but on this particular day the dog is just doing arts and crafts and puzzles and hanging out, drinking some Woodbridge Chardonnay and you put the dog in the Suitcase and then the dog barks because it's in the Suitcase and doesn't want to be in the suitcase when it's zipped up, that triggers you to, I remember when the dog bit me in the past.

You can't -- that's not how this works. That's not how self-defense works, with or without battered spouse syndrome. There has to be an overt act. You can't bootstrap and make up a fictitious act of violence on that day based on the past violence. That's not what the case law allows.

And the State is asking -- unless they are saying that the testimony will be different at trial, we are asking for the Court to prevent them from saying anything about this during opening statements, because they will know based on the Court's ruling, what your client has already said to Drs. Werner and Harper does not admit self-defense evidence into this case.

So that's what we're looking for, is that ruling; if this is what the testimony is at trial, then self-defense is not going to apply. And all the ancillary prejudicial things that come with it -- reputation evidence, past instances of violence, battered spouse evidence -- is not coming in either.

Now, if they make some statements and promises that they cannot fulfill in opening statements, then that'll be on them. King vs. State will allow us to point those things out to the jury and it will not be burden shifting, but that's what we're asking. This is a proffer. Just like any other proffered testimony, like a sex crimes case where we file a deposition of a Williams Rule victim and ask the Court to rule prior to trial, Hey, if this is how the Williams Rule victim testifies and it's clear and convincing and it meets all the standards under 404 and 403, can this prior act of sexual violence come in during the trial? This is what parties do all the time, is get pretrial rulings on crucial matters like this.

This is a crucial matter because the tip of the iceberg is the second degree murder. The rest of the iceberg, the 99 percent of what has been going on for the last month and a half, is the self-defense that just isn't there. It wasn't there under her former statements to the police and it's not there under her current statements.

So we're asking for a ruling, a motion in limine, which is subject to change based on the evidence at trial. But if this is what the evidence is at trial, the Court should not allow any of the battered spouse, any of the prior violence, any reputation evidence in. That's all we're asking for.

MR. JAY: And as far as the last line on page 92, line 15, if something is designed to get a response that a normal person would respond to and there's no response, that still makes it a relevant statement. He's not giving an opinion on the law, he's giving an opinion about her reactions to this interview and trying to get a reaction from her when he says: Well, intention or not, Jorge is dead. You act like, when you say unintentionally, that absolves you from everything.

He's not stating that that is a legal defense, he's just commenting on what has transpired in the 92 pages of the interview. So we defer to whatever the Court's ruling is.

MR. JAY: Judge, just the other night, I received 550 pages of medical records regarding the treatment of Mr. Torres from two incidents, one in 2017 and one in 2018. A third e-mail that I received from Mr. Owens purported -- he believed that they had attachments. They did not. I replied to him as such and I have not gotten any additional e-mails with attachments regarding the medical records. So for the purposes of this hearing, all I'm arguing about is the 550 pages that I have been provided.

One of those instances involved a narrative being given by the patient, Mr. Torres, that he had put his hand through a plate glass window.

MR. JAY: And his wife the following day made him go in and get treatment. There was a 4.5-centimeter laceration that required two sutures. There is no history in the narrative about any violence that the decedent had committed. So I anticipate that Ms. Boone, when she testifies, will give us an explanation about how this was an instance of past violence that she was aware of by the decedent.

So making that assumption, then what the State is asking for is, the 57 pages seems excessive. This jury is going to have a lot of information to weigh and consider. They don't -- not every page of these 57 pages is relevant.

What is relevant is, yes, he came in for treatment. That narrative, you know, and the history that he gave of putting his hand through a plate glass window and that he got sutures, that corroborates her testimony. I understand why she will need corroboration for her testimony, to bolster her credibility. So if she testifies that way, we get it, but it's just excessive and it's going to be confusing. They don't need to read 57 pages of all of his treatment.

The second batch was 487 pages regarding an incident on Christmas of 2017, when what the decedent reports in the narrative to the hospital is that some unknown men jumped him and beat him up. Being a victim of violence is not relevant in this case.

I expect there will be a story, based upon the testimony that we've taken from the experts, that this all happened at a family gathering and one of the decedent's brothers learned from Sarah Boone that Sarah Boone said that he had -- he, the decedent -- had committed violence against her and then beat him up. That's not the same ilk as corroborating violence with breaking windows or whatever it is that caused his laceration, whatever she ends up testifying to about the 2018 incident.

But this incident, it's irrelevant that he got beat up by his brother. It's irrelevant that he suffered the amount and severity of injuries that he did. That is not required to corroborate her testimony that -- I mean, I don't even know if it comes in that she makes an out-of-court statement to the decedent's brother that something is true that happened in the past. That seems like classic hearsay. I'm not sure how she would get that in. I don't know that the 487 pages is needed to corroborate that.

And if the Court -- like I stated in my response, if the Court believes that it is necessary to corroborate her story that he did get beat up by his brother, then, again, there are narrative parts of these medical records -- generally, I would say in this particular instance, it was a handful of pages -- that give the narrative as to what happened. And I don't know that it's relevant what the treatment was that he received, but there's narratives of that as well.

They don't need to be bogged down with 487 pages of toxicology reports, nursing rounds, just all the things that I'm sure the Court is familiar with from your past experience that are in these medical records. It's unnecessary and it's prejudicial. Its probative value is substantially outweighed by its prejudice, confusing, repetitiveness as I outlined in my response. So that's our position.

MR. JAY: The two parties' discovery responsibilities in a criminal matter are not equal. The State of Florida has a duty to disclose anything that anybody knows or may reasonably be calculated to lead to relevant information to the defense. The defendant's obligation is to let us know what they're going to use in trial. So for them to come in today on the third day of jury selection and to tell us that it's premature to ask for what is going to be their actual evidence in atrial is wrong. They got these records -- and I understand that they're the ninth set of attorneys for Ms. Boone, but the defendant got these records in 2022 or 2021, and they just get disclosed to me overnight a couple of nights ago.

In their discovery responses, in the first amendment, second amendment, third, so on and so forth, for weeks they were telling us that they didn't have them and they were waiting for them, but they were sitting in Ms. Boone's box apparently that Billy Lane had acquired years ago. So it's not premature to ask. And it's not unfair to ask for what is going to be introduced in this case or attempted to be introduced, particularly given the Court's rulings.

We had rulings from this Court, I think you entered it August 5th or August 6th, setting forth a schedule for, what are you both -- and the State too. We both disclosed, what are we actually introducing? And the State has actually narrowed down the digital phone evidence from the defendant greatly to about 160 pages of the PDF from the thousands that it was and a handful -- a few dozen pictures and videos. We have done everything we can to narrow it down. We're not asking for much here. We're not asking for much.

And just to bring the point about the BAC. Jorge Torres had a .342 medical blood, so there's probably some conversion, 10, 15 percent for legal blood, at the time that he was admitted for his facial injuries. That would be a different picture than on the date of the plate glass window.

On that date, again, I expect that the testimony from the defendant will be that he was the aggressor, the violent one, and his blood alcohol level would be relevant for the plate glass window one, but I'm struggling to understand what his BAC's relevance is if we're all at a family gathering at the Torreses and she says something that triggers one of his brothers to violently beat him nearly to death, what his BAC's relevance is on that particular occasion, unless her testimony is the decedent was being violent with her that day, and that's just not my understanding of how the deposition is read.

So, Judge, we're not asking for much. I don't think Friday is sufficient. We're attaching jeopardy to this case as soon as we swear this panel in hopefully tomorrow morning.

Thank you.