1.Exhibit Objections, Family-Law Records, and Brian Boone Impeachment
319 lines(The following proceedings were resumed October 17, 2024, at 9:21 a.m., with appearances as previously noted; stenographically reported by Breean Crisp.)
COURT CLERK: Case No. 2020-CF-2603, State of Florida vs. Sarah Boone.
Parties, announce your names for the record, beginning with the State.
MR. CACCIATORE: Dave Cacciatore on behalf of the State.
COURT CLERK: Defense?
MR. OWENS: James Owens for Sarah Boone.
MR. HENDERSON: Tony Henderson for Sarah Boone.
COURT CLERK: Ms. Boone, raise your right hand to be sworn, please.
(Defendant sworn.)
SARAH BOONE: I do.
THE COURT: Ma'am, good morning. Can you state your full name and date of birth for the record for me?
SARAH BOONE: Sarah Boone, 10/10/77.
THE COURT: All right. Ms. Boone is seated at counsels' table wearing a dark gray suit and a yellow blouse. She is in custody, however, she is not being shackled for the purposes of the trial based on the Court's prior findings.
We're here to conclude the objections as identified in the State's response to Defendant's Fifth Amended Reciprocal Discovery Exhibit List. The Court has reviewed the objections and the Defendant's Fifth Amended Reciprocal Discovery Exhibit List. Anything else we need to address, State, before we begin addressing those objections?
MR. JAY: Judge, I do not see a written order from yesterday's rulings on the clerk's website. I'm just -- I want to make sure I am crystal clear as to what the Court has said is going to occur during the trial regarding opening statements by either party and so on and so forth so that I am not in violation of any motions in limine or any case law that presides over what I can say or not Say.
THE COURT: Okay. Madam Clerk?
Were you anticipating a written order on the motions in limine?
MR. JAY: I felt like I heard you say everything that I anticipated was going to be put at least on court minutes by the clerk's office. I wasn't anticipating you type a written order.
THE COURT: Okay. That's what I wanted clarification on. Thank you.
MR. JAY: But I just do want crystal clear clarification as to what we are both doing, because based on that, I have some things that I would like to get on the record for post-conviction matters.
THE COURT: Sure.
All right. Madam Clerk is pulling up the file now, Sir. Give us a moment.
(Discussion between Judge and Clerk.)
THE COURT: Madam Clerk has advised that court minutes were not prepared for the ruling from yesterday due to it taking place during the trial and jury selection. So digital was not providing recording services yesterday, so it would have been Madam Court Reporter, so I would have to beg and plead if she's able to get me a copy of what it was so that it can be re-reviewed so that we're all on the same page for that.
THE COURT: Madam Court Reporter, how long do you think that would take you?
COURT REPORTER: Can I get it this afternoon?
THE COURT: Is that acceptable? Can we address it at 1:30 before we --
COURT REPORTER: A rough draft?
MR. JAY: It makes it very difficult to prepare for opening statements when I don't know what I can say.
THE COURT: I agree with you, and I'm not trying to, you know, submarine anybody or put anybody in an inappropriate box, but --
THE COURT: I don't disagree, but is 1:30 acceptable?
THE COURT: Okay. Well, then short of taking a break right now and having her create it, I don't know what else to tell you.
MR. OWENS: Can we finish jury selection? Mr. Henderson is going to take a minute. I guess we start at 10:30 or 11:00, and that's going to go -- that's going to spill into probably late afternoon before we actually get a jury picked. Can we just agree on Friday morning starting opening statements? That gives her time, him time, me time.
THE COURT: State?
MR. JAY: We have had an out-of-state witness and people that are scheduled to come in, so we do see problems with that.
THE COURT: Okay. I don't know how long jury selection is going to take this morning. I can't recall off the top of my head how much time the State said -- or the defense said they were going to need for the purposes of their questioning.
So, Mr. Henderson, how much time do you think you're going to need, sir?
MR. HENDERSON: Hour and a half, two tops, Judge.
THE COURT: Okay.
MR. OWENS: And then we've got to go through each juror as cause and peremptorily.
THE COURT: Correct.
MR. OWENS: I believe we each have ten strikes.
THE COURT: That's correct.
MR. OWENS: So that's going to take a bit.
THE COURT: Mr. Jay?
THE COURT: I understand. So the way I see it is we've got a couple of options. We can -- and there's no good way to cut this up. One, we can wait on the objections, which I know you do not want to do; or we can stop now, Madam Court Reporter can provide a rough draft of what was ordered yesterday, and we can go over it and review it, make sure that we're all on the same page as to what the Court's ruling orally was yesterday as to the various motions in limine. Then we can continue with jury selection or then we can pick up with the objections.
I'm amenable to however it is you want to proceed. T understand your concerns of running afoul of the motion in limine, I totally understand that, but it will take her some time to prepare this.
MR. JAY: I'm fine with either letting her do that now or letting her do that after we argue this, hopefully, last pending motion in limine, but prior to getting into jury selection so that I have time to rework what my opening statement will be based on the ruling during Mr. Henderson's voir dire.
THE COURT: Let me then ask this question. Assuming we get a jury this afternoon, what are the concerns with starting tomorrow morning with openings? Is it due to out-of-state witnesses that may be unavailable or because of their schedules?
MR. JAY: I feel like if we have time, we should at least get into preliminary instructions and opening statements and use every waking moment we have to not waste these jurors' times until 5:00 today.
THE COURT: Okay. All right.
Madam Court Reporter, how long do you think it would take you?
COURT REPORTER: JI can also just give the rulings quickly.
THE COURT: Is that acceptable, as opposed to in print? She could go back and pull back the audio from -- and re-review it and just provide it to us now?
THE COURT: Okay. All right. Then we'll take a short recess.
Just let us know when you're prepared to give us that ruling and then we'll go from there.
Anything else we need to discuss before we take this brief recess?
THE COURT: State -- or Mr. Owens?
MR. OWENS: Madam Clerk [sic] is going to -- 30 minutes?
COURT REPORTER: No, not that long.
MR. OWENS: Excuse me?
COURT REPORTER: No, not that long.
MR. OWENS: Okay.
THE COURT: How long do you think; 10, 15, 20?
COURT REPORTER: Fifteen, maybe.
THE COURT: Okay. Great.
All right. We'll be in recess until 9:45. Thank you.
MR. HENDERSON: Judge?
THE COURT: Yes, sir.
MR. HENDERSON: Excuse me.
THE COURT: Yes, sir.
MR. HENDERSON: One thing, because there was another motion filed last night.
THE COURT: Yes.
MR. HENDERSON: I think it would have some impact in opening statement. Of course, if we deal with that now, that would probably help.
THE COURT: You're talking about the motion in limine regarding anticipation of affirmatively pled intent to use battered spouse syndrome evidence?
MR. HENDERSON: Correct.
THE COURT: Fine.
MR. HENDERSON: And just to make it quick, Judge, I've read the motion, I've read the case law that was provided by the State, and I think it's accurate.
THE COURT: Okay. Well, that saves me some time, then, so I appreciate that.
All right. So do you have any objection, then, Mr. Henderson, to the granting of the State's motion in limine, which would allow the State to be able to outline in opening statements and present evidence in the State's case in chief in anticipation of the use of the battered spouse syndrome defense at trial?
MR. HENDERSON: No objection.
THE COURT: All right. Motion is granted.
All right. We'll be ina brief recess until 9:45. We're off the record. Thank you.
(Brief recess from 9:29 a.m. to 9:52 a.m.)
THE COURT: All right. We're back on the record, Case No. 2020-CF-2603, State of Florida vs. Sarah Boone.
Let me get appearances for the State.
MR. CACCIATORE: Dave Cacciatore on behalf of the State.
MR. OWENS: James Owens for Sarah Boone.
MR. HENDERSON: Tony Henderson for Sarah Boone.
Mr. Beck had to leave, Judge.
THE COURT: Okay. Ms. Boone is seated at counsels' table wearing the same clothing from this morning.
Ms. Boone, a third of your defense team is not present at the moment. Are you amenable to proceeding without Mr. Beck being here?
SARAH BOONE: Yes.
THE COURT: Okay. Thank you very much.
(Mr. Beck entered.)
THE COURT: Well, that cures itself. Counselor?
THE COURT: Thank you.
The record will reflect that Mr. Beck has just entered the courtroom.
All right. The Court has had the opportunity to review the excerpts from the motion in limine hearing from yesterday, and my understanding is both the State and the defense were provided copies of same.
Mr. Jay, is that accurate?
THE COURT: Mr. Owens, is that accurate?
MR. OWENS: Yes.
THE COURT: Okay. The Court has reviewed it. Are there any questions with regards to the Court's rulings on that motion?
THE COURT: Yes, sir.
MR. OWENS: Judge, was it e-mailed to us?
MR. HENDERSON: Yes.
MR. OWENS: All right. Give us one minute.
THE COURT: Sure.
MR. OWENS: I didn't know.
THE COURT: Madam Clerk is providing you a printed copy, sir.
MR. HENDERSON: Thank you, ma'am.
MR. OWENS: Thank you.
THE COURT: Have you had the opportunity to review that excerpt yet, Mr. Owens?
MR. OWENS: No, sir.
THE COURT: All right. Go ahead and take a look at it.
(Pause.)
MR. OWENS: I've reviewed it, Judge.
THE COURT: Okay. All right. Mr. Jay, you may proceed.
MR. JAY: Thank you.
Judge, we are referring to a rough draft printout that the court reporter made. It's four pages of part of your rulings from -- there were several motions yesterday, but in this one, it's on page 1, lines 22 through 24, part of the Court's ruling was: It's indisputable that an overt act needs to be provided under the Holland case by the Florida Supreme Court prior to battered spouse syndrome evidence coming in.
And perhaps the State wasn't clear in its request, and I apologize if I was not in our motion, though, but paragraph 24 of the State's motion includes a quote from the Holland case: However, before a defendant may introduce evidence of the victim's character, he must first show that there was an overt act by the victim at or about the time of the incident that reasonably indicated a need for self-defense.
Holland vs. State, 916 So.2d 750, page 760 of that opinion, a Florida Supreme Court case from 2005, which was quoting Quintana, Q-u-i-n-t-a-n-a, vs. State, 452 So.2d 98, page 100, a Florida First DCA case from 1984. Also quoting Williams vs. State, 252 So.2d 243, 246 is the page, Florida Fourth DCA, 1971; Reid, R-e-i-d, vs. State, 213 So.3d 1110, at page 1111, Florida Fifth DCA, 2017; Rudin vs. State, 182 So.3d 724, at page 726, Florida First DCA, 2015.
So what we were asking for is, in addition to the battered spouse syndrome expert testimony to not be mentioned prior to an overt act being laid was any evidence of the victim's character, including reputation or prior bad acts. We apologize if that was not clear since the motion is titled battered spouse syndrome evidence, but the backbone and the basis of that battered spouse syndrome is, obviously, prior bad acts by the victim. So we are seeking a pretrial ruling as well on the admission of prior bad acts -- specific bad acts or reputation evidence of the decedent.
THE COURT: Thank you.
Response?
MR. HENDERSON: I just have one question. As to what time? Are we talking about voir dire? Are we talking about opening statement? At what time are we talking about?
THE COURT: That was my takeaway.
MR. HENDERSON: Okay. He's absolutely correct.
THE COURT: Okay. Then the motion is granted. So the Court is going to rely on that specific excerpt in Holland, 916 So.2d 750, at pinpoint 760 through 761, beginning with: As a general rule, evidence of a victim's character is inadmissible to prove actions in conformity with it on a particular occasion, Section 90.404(1) Florida Statutes. However, when a claim of self-defense is raised, a defendant may introduce evidence of a victim's character to establish who the aggressor was or that the defendant was apprehensive of the victim at the time of the homicide. Internal citations omitted. However, before a defendant may introduce evidence of the victim's character, he must first show that there was an, quote, overt act by the, brackets, victim, end bracket, at or about the time of the, bracket, incident, end bracket, that reasonably indicated a need for, bracket, self-defense, end bracket. Internal citations omitted.
That's the standard. So hearing no objection from the defense, the motion will be granted.
MR. HENDERSON: Judge, and just my understanding and I'm clear on the record, it's just procedurally correct. Procedurally, before we can put evidence of that, there has to be a claim of self-defense, that has to come from someone, and in this case, we all know that has to come from Ms. Boone.
THE COURT: Okay. Received and understood.
Any other clarifications for the purposes of opening or trial based on the Court's oral rulings on the State's motions in limine yesterday?
MR. JAY: No, Your Honor.
And then the only other thing that we beg of the Clerk of the Court and the Court is just that we can have some written rulings, even if it's just minutes, from all the motions that were ruled upon yesterday at some point for the record for the Sixth DCA.
COURT CLERK: I'11 put them in the jury trial minutes. Is that okay?
COURT CLERK: That's what we usually do. Okay.
THE COURT: All right. Thank you.
Anything further from the State before we proceed with the objections?
THE COURT: Defense?
MR. HENDERSON: Judge, yes.
Just my overall understanding is that the motions and the orders that the Court has made apply to trial and the organization or the flow of the evidence at trial. Certain things have to be presented before certain witnesses can testify. It has nothing to do with voir dire, nor opening statement.
THE COURT: That is correct, and the Court ruled specifically on that yesterday.
MR. HENDERSON: Thank you.
THE COURT: And that's in the excerpt that was provided to you and your cocounsel.
MR. HENDERSON: Thank you.
THE COURT: All right. Thank you.
MR. JAY: I also believe part of the Court's ruling was that the testimony that was proffered, the expected testimony of the defendant that was given to the experts, I believe the Court's position was, if that is the testimony, then that is not an overt act.
THE COURT: The Court's --
MR. OWENS: I don't recall that.
THE COURT: -- statements yesterday speak for themselves. I'm not going to rehash that matter today.
Anything else, Mr. Jay?
THE COURT: Anything else, defense?
MR. HENDERSON: No, Your Honor.
THE COURT: All right. Let's proceed with these objections. The Court, again, has had the opportunity to review that Fifth Amended Reciprocal Discovery Exhibit List filed by the defense I believe back on October the 2nd or the 3rd, and the Court was provided yesterday the actual exhibit list itself and the State's response and objections to same.
There's no need to go over the items for which the State has no objections. So, State, I would ask you just to, you know, provide as to the ones that you have objections for, and I have notes with regard to all of them. So you may proceed, sir.
THE COURT: I think that's the easiest way to do it. I know we start with item 1 and then go to 3, 4, et cetera, so we can ping-pong it back and forth from there.
MR. JAY: All right. Regarding item number 1 on the Fifth Amended Reciprocal Discovery Exhibit List from the defendant, I do not believe we have received those records.
THE COURT: Response from the defense?
MR. OWENS: You're referring to 1Al1?
MR. JAY: We're referring to 1. 1A is all the State's evidence that you believe you can use, and I labeled that as paragraph zero in my response. So specifically talking about your paragraph that you labeled 1, certified medical records from AdventHealth Orlando (not yet received by the defense), it's not yet received by the State, paren.
MR. OWENS: The defense has not received those records.
THE COURT: Okay. The motion -- or the objection is sustained.
Moving to 3, are these the 550 pages that we addressed yesterday?
MR. JAY: My belief -- and, again, none of the exhibits are numbered as they get disclosed to the State. They're not Bates numbered, I do that myself, but what I have and what I believe is State's 2 was 81 pages of records regarding treatment by --
THE COURT: I'm not talking about 2. You don't object to 2. I'm talking about 3.
THE COURT: Okay.
MR. JAY: -- this morning, after having previously already been given 81 pages of records that purport to be from Winter Park AdventHealth regarding treatment of Sarah Boone over a variety of different dates spanning 2018 to 2020, after having received those, reviewed those, and made my decision on not objecting, this morning I was given a thumb drive from the defense which contained 119 JPEGs rather than a single PDF with 119 pages. A JPEG for the record is a digital picture. They were upside down. They were sideways. I got them all formatted. I was able to read them while we were waiting for Madam Court Reporter. They do not appear to be completely the same as what has been previously provided by the defendant in regards to Winter Park's AdventHealth treatment of Ms. Boone.
So I just want to be clear that now, since the State's response, there has been some sort of change in what those records purport to be and we are objecting. We are requesting a Richardson hearing regarding the 119 JPEGs that we were provided this morning in regards to Defendant's Exhibit No. 2.
THE COURT: Okay. At this point in time, the Court is going to proceed with a Richardson hearing.
Defense?
MR. OWENS: Judge, referring to our paragraph 2 in the Defense Fifth Amended Reciprocal Discovery Exhibit List?
THE COURT: Correct.
My understanding, based on what Mr. Jay just provided and based on his response, is that there were 81 pages provided to the State on or about September 27th, 2024. The State had no objection to those. The State further identified that this morning, a thumb drive of 119 JPEGs, evidencing something else, was provided. And under the mandates of the Sixth District Court of Appeal based on Young v. State, 369 So.3d 1243, I am required to conduct a Richardson hearing. The Court is conducting a Richardson hearing at this time.
MR. OWENS: Judge, the 81 pages that were the medical records --
THE COURT: The 81 pages are not at issue.
MR. OWENS: I understand. They were given -- they were given of Sarah Boone from the AdventHealth Winter Park. The 119 pages, my understanding is we thought we had sent them previously. We realized yesterday -- or last night that we had not sent those, so we provided those to the State as soon as we were aware that we had not given them to them.
THE COURT: And what do the 119 pages evidence?
MR. OWENS: They're medical records from the hospital relating to Sarah Boone over a period of time. Obviously, that's going to be whittled down depending on her testimony and whether or not it would corroborate her testimony that she suffered injury at the hands of Jorge Torres.
THE COURT: I need more specifics than that. I don't have a time frame. I don't have when. I don't have what.
MR. OWENS: Well, it's going to have to be matched up with the dates that she was injured, which would coincide with the --
THE COURT: But that all goes to the irrelevancy issue. We're conducting a Richardson hearing at this time.
MR. OWENS: All right.
THE COURT: So I need to address the inadvertence or willfulness --
MR. OWENS: Okay.
THE COURT: -- of the discovery. I need to address whether it was trivial or substantial. And if I don't know what's in these 119 pages, it's difficult for the Court to determine whether or not this is a trivial or substantial matter. Are these items that were previously produced in the 81 pages? Are they different? Are they different events? Are they different injuries? Are they different things?
Moreover, I need to make a determination as to whether this violation had an impact on the ability for the State to properly prepare for trial. Those are the three prongs that I need to address.
MR. OWENS: Judge, my understanding is the first 81 pages were medical records of Sarah Boone that we had gotten from one of the previous lawyers that we had sent to the State. The other medical records were those that we had requested directly from the hospital that we got last week or late last week and we just failed to immediately provide those.
THE COURT: When did you receive them last week?
MR. OWENS: I'm not sure, Judge. I'd have to get my secretary. We'd have to take a break and let me find out from my secretary when we received them.
THE COURT: Okay. I'm going to continue with the balance of the objections and we'll circle back on the issue with regard to this objection so that you can provide when, where, how, what.
MR. OWENS: My staff is --
THE COURT: Understood.
MR. OWENS: -- texting her so we can get --
THE COURT: Well, I'll make a note to circle back to this issue.
Moving to number 3, is this -- the AdventHealth Winter Park, Jorge, not yet received by the defense. State's response reveals a motion in limine was filed regarding this motion. Is that the 550 pages that we addressed yesterday?
MR. JAY: Yes, Your Honor, and the State still has not received a whittled-down exhibit that they plan to introduce at trial.
THE COURT: The Court ruled on that yesterday regarding the blood alcohol content records and the narrative would be admissible.
THE COURT: Okay.
MR. OWENS: You want the exact pages that those --
THE COURT: Yes.
MR. OWENS: -- the BAC and the narrative are on?
THE COURT: That's what's going to be offered into evidence at this point in time.
MR. OWENS: Judge, we'll work on that right now.
THE COURT: Appreciate it.
MR. OWENS: I've got staff here in the courtroom that can work on that.
THE COURT: So with regard to the State's objection to item 3, that was previously ruled upon yesterday.
Is that the same with regard to the State's objection as to item number 5, certified medical records, AdventHealth Altamonte Springs, Jorge?
MR. JAY: I believe so, without being able to tell. AdventHealth, it just seems to all come from Altamonte Springs, the records, so I believe that is all encompassing, but -- so we don't have an objection, other than the ones previously noted, for number 5.
THE COURT: Okay. Thank you.
Moving now to item number 6, certified medical records, Orange County Jail, not yet received by the defense. I'm assuming they also have not yet been received by the State?
THE COURT: Oh, I apologize. You're correct.
Four, certified medical records, AdventHealth Altamonte Springs, Sarah, not yet received by the defense. I'm assuming also, then, State, you have not received them?
MR. JAY: I believe the only records, until this morning, that I had was the 81 pages from Winter Park disclosed on September 27th, 2024. If there is something that they have from AdventHealth Altamonte Springs, I don't believe I have that.
THE COURT: Defense?
MR. OWENS: Judge, we have not yet received those records. We had Sarah Boone sign a medical release and we have sent requests to the various medical facilities asking for records and we're just waiting ona response.
THE COURT: The objection is sustained.
Moving to 6, certified medical records, Orange County Jail, not yet received by the defense. I'm assuming they have not yet been received by the State either?
MR. JAY: Last night, after business hours, I received 382 pages of jail records regarding Ms. Boone. Once again, I had to spend my personal time reviewing these records. Of the 382 pages, probably fewer than 5 percent refer to her mental health and the psychiatric treatment that gets provided to inmates at the Orange County Jail. The other 95-plus percent of these records is all about physical treatment, COVID tests, things I won't outline here unnecessarily since I do not believe these records will come in, but all of the things that you would expect a middle-aged inmate to have to go through for the course of four years. The State just is having great difficulty understanding what, if any, pages of these records are relevant.
On page 135, there is records from part of her intake procedure on February 26th, 2020. On page 137, that's the initial screening when she came into the jail on February 25th, 2020. Page 137 and 138 include this initial intake screening. But from there, we get pretty far removed in time, pretty far removed in relevance, so the State is objecting to the introduction of these records.
Even her intake screening on pages 135 through 138, I don't understand the relevancy of it. She indicates panic symptoms, she's semi-cooperative, has poor insight, unrealistic expectations, wants holistic treatment, doesn't like being housed alone. The screening on 2/25 goes through, alcohol abuse, yes. Type, spirits; not wine. Last used, 2/23/20. Several times a week. The intake screening also includes a history of violence towards others, yes.
So we're -- there's no psychiatric treatment records for treatment for trauma. Any of the recognized trauma diagnoses in the DSM-5, PTSD or any of the other trauma symptoms that can be diagnosed, there's no records of any treatment of that. It's just the anxiety, which having read the expert depositions, I'm sure you understand that that was pre-existing before the jail.
So our objection is we don't understand the relevance of these records. They do not go to her subjective state of mind on February 23rd, 2020. They do not go to help us understand whether somebody in her position was objectively reasonable on February 23rd, 2020. And, quite frankly, most of it is just embarrassing and irrelevant and it would bog the jury down, much like 487 pages of Jorge Torres' records. There's just a lot of COVID screenings and blood test results, and it's -- we struggle to see the relevance, Judge.
THE COURT: Thank you.
Response?
MR. OWENS: Well, Judge, it's similar to the State about ten days ago sending me over 500 pages --
THE COURT: We addressed that yesterday. It's not germane to the issue.
MR. OWENS: Okay. Well, as soon as I got the medical records, I sent them to the State.
He mentions anxiety was pre-existing. No, that's not what their expert, Dr. Werner, opined. In her deposition, that the anxiety she may be suffering from at the jail was from being in the jail. So there are questions about that, but, generally, you get these records, as you -- as you know, when you have a forensic psychologist that's trying to evaluate a patient --
THE COURT: What is the relevance of these records? What do COVID tests have to do with anything in this case?
MR. OWENS: They don't.
THE COURT: What do blood tests have to do with anything in this case? If they don't, then what of these 382 pages of records are relevant?
MR. OWENS: I'm trying to tell you.
THE COURT: What specifically is relevant? What page?
MR. OWENS: Dr. Harper --
THE COURT: What date?
MR. OWENS: Dr. Harper --
THE COURT: What document?
You're not answering my question, Counselor.
MR. OWENS: I didn't say we were going to introduce these records.
THE COURT: They are listed on your exhibit list.
MR. OWENS: I understand.
THE COURT: The State is taking the position that these may be sought to be entered into evidence.
MR. OWENS: I don't intend on introducing these exhibits -- this exhibit into evidence. I intend on potentially the doctors, the experts, Dr. Werner, Dr. Harper, to rely on these records.
MR. JAY: The depositions of all three doctors predate their request for these records, so it's pretty unclear whether any of these experts have already reviewed these records. Now we're going to have to address, when do I get to depose their doctor, Dr. Harper? If she has not reviewed these records yet, when do I get to depose her, who's going to pay for the expedited costs for the transcripts, what relevance is it to her if she hasn't reviewed these records?
They got these records post deposition, post evaluation. The last date that I believe she saw Ms. Boone was September 30th or October lst, and then we took her deposition either the lst or the 2nd. So this is also a problem, even if it's just going to be relied upon and not introduced. And I appreciate them letting us know that they don't seek to introduce these records into evidence because, of course, experts can rely on inadmissible evidence if, within the course of that area of expertise, it's the type of evidence that's routinely relied upon. But how are these records relied upon if they acquired them after we've done all the depositions?
Now, Dr. Harper did say that she relied upon some jail records during her deposition. State didn't have those at the time. I don't know what the date span is of the records that she did review at the time of her deposition. So now we have new issues to confront and we would like to know whether or not their experts have been provided these new records so that we can address them.
THE COURT: Mr. Owens?
MR. OWENS: Judge, I don't want to delay the trial. I will not have Dr. Harper review these --
THE COURT: So she has not yet reviewed these yet, correct?
MR. OWENS: No, no.
THE COURT: Okay.
MR. OWENS: I don't want to get into a situation where we're going to take another deposition, so I'll wait -- I will not ask her to review these records.
THE COURT: Okay. State --
MR. OWENS: That was the only purpose for the record.
THE COURT: Okay. So, State, understanding that tactical decision and that Dr. Harper has not reviewed and, seemingly, will not be relying upon these experts [sic], does that cure any concerns that you have?
THE COURT: All right. Then based on counsel's representation, the Court is not going to sustain or overrule the objection as the defense has identified they are not going to be seeking any of these 382 pages into evidence.
Moving now to 8, 9, 10, and 11, there's no issue with regard to the bodycam footage, but there is as to the police report itself. What is your response to that, Mr. Owens?
MR. OWENS: Judge, the arrest reports are not listed as evidence in itself, but the reports may be used to refresh the officer's memory, if needed, during their testimony.
THE COURT: Okay. Does that cure that understanding?
THE COURT: Okay. All right. So based on Mr. Owens' representation of those items will not be sought to be moved into evidence or received into evidence, but only for the purposes of refreshing a recollection, the objection is not sustained, nor overruled as they're not going to be sought to be entered into evidence.
Moving to Exhibit 17 -- no. I'm sorry, 16. 16 is a repeat of 11, so the Court is going to adopt its -- Similarly, with regard to that exhibit, Mr. Owens, are you only going to be seeking the arrest report for the purposes of refreshing?
MR. OWENS: Yes, sir.
THE COURT: Okay. So the same ruling with regard to Exhibit 16 as with 9, 10, 11.
Moving to 17, the jail calls involving defendant and third parties. State, anything else to add, other than your written objection?
THE COURT: Response?
MR. OWENS: The defendant is not intending to introduce the jail phone calls.
THE COURT: Okay. The objection is sustained.
18, prior criminal history of Jorge Torres, not yet received by the defense. Has the State received that?
MR. JAY: Other than the arrest history that has resulted in interaction with the State Attorney's Office, we have not. He's not a testifying witness, so, obviously, you know, we have to provide, if they can't get it through due diligence, rap sheets of any of our witnesses, but he's not a witness, so we have not done anything other than had discussions about the prior interactions with the State Attorney's Office.
THE COURT: Okay. Response, Mr. Owens?
MR. OWENS: Judge, we're referring to the prior record involving Sarah that Sarah is aware of.
THE COURT: Okay.
MR. OWENS: I know he had some priors in Pennsylvania and maybe Massachusetts. We're not -- we're not referring to those. We're only referring to the ones involving incidents involving Sarah Boone.
MR. JAY: I'm just trying to understand. Are they seeking to introduce some sort of paper or is this just the broad notification that Ms. Boone, when she testifies, will be testifying about any prior incident of violence that she wants to regarding the decedent because he can't rebut it?
THE COURT: What is it -- is this oral testimony? Because this is an exhibit list, so that's my confusion. Because if it's oral testimony, that may be a different critter once the overt act is established under Holland.
MR. OWENS: Judge, she's going to testify to it and then it kind of ties into that evidence being used to refresh the officer's testimony. The officer's testimony we believe is going to corroborate Sarah Boone's testimony about her injuries, photographs, the officer visibly observing injuries on her. That's the nature of this, so I don't think there is going to be anything about a prior criminal history other than what she's testifying to.
THE COURT: Okay. So there's not going to be any documentary or physical evidence that's provided -- Informations, charging affidavits, a criminal history report, anything tangible -- that's going to be offered to establish that criminal history, other than Ms. Boone's testimony? Is that your position?
MR. OWENS: Yes. Unless there's some dispute about that, that we have to corroborate it and ask the Court to take some judicial notice that there was a case file that was set up to handle that criminal prosecution.
THE COURT: Okay. Mr. Jay?
MR. JAY: I don't know that papers generated by a government agency is relevant and the disposition of the papers that were generated by some government agency is relevant. What's relevant is, if there is an overt act that gets testified to, prior instances of violence by the decedent that she is aware of. That doesn't open the door to hearsay. That doesn't open the door to any of these things that he seems to be referring to, whether it's criminal rap sheets, which is what I believed he was referring to, or police reports or state attorney records of No Bills or -- I don't know -- based on his last statement, I don't know what we're talking about now, but we do have hearsay objections to -- I thought we were talking about physical exhibits, and that's what our objection would be to believing that what was represented was a criminal rap sheet.
MR. OWENS: Judge, part of battered spouse syndrome -- and Dr. Brannon will testify, I assume Dr. Harper will testify about it, Dr. Werner will testify -- is -- is this feeling by a victim of being battered, that she has nowhere to turn, that there's -- family can't help her. She has no group.
The state attorney dropped three of the charges. Three separate times Jorge Torres was arrested and charged with violence against Sarah Boone. At her request, she wanted them dropped. That's part of the syndrome. But in addition, in her mind, she felt like the state attorney had let her down. They could not -- they dropped three of the cases, so she felt helpless that there was some outside entity that would protect her. That ties into her state of mind as to whether or not she felt an imminent threat at the time of this event. So that may become relevant depending on what Dr. Harper says, Dr. Werner says about that, what Dr. Brannon says about that, as to whether or not she felt helpless, because the State Attorney's Office was not prosecuting Jorge Torres when she was the victim.
THE COURT: But that all sounds like oral testimony. And, again, this goes back to, this is an exhibit list. What are the exhibits, tangible, physical?
MR. OWENS: We may want to introduce something in a court record indicating that the state attorney dismissed the case.
THE COURT: Okay. What does that have to do with prior criminal history? Because that's the topic here, prior criminal history of Jorge Torres, Jr., not yet received by the defense. That's the line item in your exhibit list.
MR. OWENS: I'11 withdraw the prior criminal history.
THE COURT: Okay. All right. So based on counsel's representation of the withdrawal, the Court will not sustain or grant the objection.
Does that clarify that for you, Mr. Jay?
THE COURT: All right. Moving now to 19, Orange County Sheriff's Office investigative workup report. Response?
MR. OWENS: That's to be used to refresh the officer's memory, if need be, during their testimony.
THE COURT: Okay. With that understanding, Mr. Jay?
MR. JAY: Yes. I'm not -- I'm not clear what a workup report is, but if it's not sought to be introduced into evidence, then I will accept that representation.
THE COURT: Okay. So accepted. Your objection is overruled based on counsel's representation, the investigative report workup will not be offered into evidence, but merely for refreshing.
Moving to 21, all court orders in all Orange County criminal cases regarding Jorge Torres. State, any further argument?
THE COURT: Oh, I apologize. I had the wrong -- I color-coded this and I miscolor-coded this one.
MR. OWENS: Judge, we don't intend to introduce anything on 20.
THE COURT: Okay. Then based on counsel's representation of withdrawing that, the Court will not rule on that objection.
Moving to 21, anything further? Because it's kind of -- we kind of addressed this as well with number 19. Anything further, argument, State?
THE COURT: Anything further, argument?
MR. OWENS: No, sir.
THE COURT: Okay. I'm going to overrule the objection as to -- at this point in time, because if a Declination of Prosecution may have been filed, that may be relevant based on Ms. Boone's testimony. So I'm going to overrule your objection at this time, assuming the overt act concept is placed into evidence.
Moving to 22, family law case file, Boone v. Boone, Case No. 2017-DR-01660-0. I understand the State's objection as to relevance and hearsay. Response?
MR. OWENS: Judge, Brian Boone, we anticipate, is going to testify for the State, may testify for the defense, and he may be considered an adverse witness or hostile witness and so we may attempt to establish either bias on his part based on some of the documents or orders in the court record or we may reflect for impeachment purposes the fact that he has not complied with some of the orders and that he -- the reason being is because of his feelings for the defendant.
You know, he's now got full custody of their son and has had full custody for four and a half years. That was not the agreement they originally had, and he's -- he was ordered to pay alimony, which he has failed to do as a result of her being incarcerated. So there's litigation going on. Brian Boone has counsel, Sarah Boone does not in that divorce, but there --
THE COURT: What does the --
MR. OWENS: Depending on what he says --
THE COURT: What does the non-payment of alimony have to do with what's happening in a family case?
MR. OWENS: Well, Judge, that goes to his testimony. That goes to his credibility, whether or not he can be impeached, that her, in the position that she's in now -- he's biased. And to show that he's biased, that he has not paid alimony for -- he was supposed to pay $1,000 a month for a number of years, that he's just failed to comply with the Court's order, that shows his personal bias or feelings towards Sarah Boone.
THE COURT: Response?
MR. JAY: It sounds like this is ongoing pending litigation that has not been decided by a circuit court judge of the Ninth Circuit sitting in the family division. And I can certainly understand why one may believe they don't need to pay alimony when their spouse is incarcerated. I can certainly understand why somebody may believe they don't need to pay child support when their spouse is incarcerated, and they would probably want to seek legal redress about those issues, and it sounds like it's all ongoing.
THE COURT: Are there any orders from the Court in that case addressing the non-payment of alimony and that being contemptuous or in violation of any court order?
MR. OWENS: No. They were divorced. I think there was a marital settlement agreement that was attached to the final order. Brian Boone did open the case back up to move the child to Gainesville, which has happened. And then my understanding is there's still some issues -- I think she was given some kind of a notice of a hearing coming up that she's not represented. I don't represent her.
THE COURT: Is there -- so if there's no order in the court file finding there's a violation of an order to pay alimony, what is --
MR. OWENS: Well, there's a final order about his -- his obligation to pay alimony. And I think if he gets on the stand, I'm going to ask him, But you haven't paid her alimony like you were ordered to do so. I can go into on cross-examination --
THE COURT: But it sounds like there's pending litigation, including a relocation or -- and I don't know because that's not my case and I haven't looked at it.
MR. OWENS: That's been decided. That's been decided. He has been able to relocate. I don't know all the ramifications. I'll look at the clerk file. I think we had subpoenaed the custodian of the records of the clerk file. I'11 look at it and I'll let the Court know and the State know --
THE COURT: Can you-all approach just for a moment?
(At the bench.)
THE COURT: I was on the family bench for four and a half years. Here's my concern. I don't know the status of this litigation, but if there's a pending supplemental petition and he's arguing a substantial change in circumstances regarding alimony, there's not a requirement for him to pay it. It's not contemptuous.
MR. OWENS: Yeah, I don't think that's the case. I don't believe that's the case.
THE COURT: There's not a pending supplemental petition? How did he move to Gainesville? The only way he can do that is with a supplemental petition.
MR. OWENS: The supplemental petition didn't have anything to do with alimony, it just had him -- he wanted to move the child to Gainesville, and I know the judge granted that order because he's living in Gainesville. So he got permission from the Court, but I don't believe there was any pleading filed about staying his alimony payments while she was in jail, but I'll look at the file.
THE COURT: I need clarification on that because I'm worried there's other legal issues in the family law realm that are going to be at play for the non-payment of his alimony.
MR. OWENS: I think I would proffer that to the Court if I was going to attempt to impeach him --
THE COURT: Uh-huh.
MR. OWENS: -- on a topic related to his family law matter, Sarah's family law matter. I would proffer that testimony outside the presence of the jury for the Court to make a ruling.
THE COURT: Okay.
MR. OWENS: Just I don't know at this stage what he's going to say, but I think it is fair game on cross-examination to share his bias against Sarah Boone. He doesn't want Sarah Boone to have any contact with their son, Lucas. He says derogatory things to the son about Sarah Boone, and those are all fair game, because he's fighting for full custody of the child or wants full custody. He never wants Sarah -- he wants Sarah to spend the rest of her life in prison -- this is Brian Boone. I think he's going to admit this on the stand, that he wants Sarah Boone to spend the rest of her life in prison and he wants Lucas to have no contact with his natural mother.
THE COURT: Any response, Mr. Jay?
MR. JAY: I reviewed the family court file and I don't see anything contemptuous about what he is doing based on those court records, not based on my understanding of family law, which was taking a class in 1995.
I do want to put some caution into their sails. I believe it's going to be completely fair game for him to say, I'm choosing to take these actions because she's incarcerated. We've taken great steps to avoid them knowing that, besides the fact that she never comes in and out for jury selection.
So I think it's going to be fair game for him to say, Yeah, I'm not paying child support because she's in jail; Yeah, I'm not paying alimony because she's in jail. And it's either been settled based on the court file in the family court case or it's still pending. I think that's fair. And then, also, there's going to be prior consistent statements that he made to rebut this recent motivation for fabrication, so we'll be prepared to introduce those prior consistent statements as well.
MR. OWENS: Judge, and I realize I may open the door about that type of testimony.
THE COURT: Have you had a conversation with your client about the ramifications of that?
MR. OWENS: Of the jury knowing that she's in custody?
THE COURT: Yes.
MR. OWENS: No, no, but I will, Judge. And like I said, I don't anticipate Brian Boone testifying until first of next week.
MR. OWENS: Tony Henderson and I have a four-hour appointment with -- of course, we haven't been able to talk to her much because all this is going on this week, but Tony Henderson and I are going out to see her Saturday from 11:00 to 4:00 -- or 11:00 to 3:00 and then Sunday from 11:00 to 3:00. So we're going to spend -- what's that -- eight hours with her this weekend, so we'll go over this, as well as --
MR. JAY: There will also now be tablet messaging between Brian Boone and Sarah Boone that will become relevant if we go this route, and jail calls between the two of them.
MR. OWENS: All right. Well, I just want to know the specifics, what exactly you-all are utilizing, but --
THE COURT: I think that's an "if, then what happens." I mean, it's all going to be predicated on what he may say from a prior consistent statement respective.
MR. JAY: And there's a Fifth DCA case I believe called State vs. Williams that would suggest that we are not permitted by the Court to be forced to tell people which particular pages we're going to introduce or which jail calls we're going to introduce, particularly when it's on rebuttal.
This is all new to us that he was going to open all these cans of worms, so -- but we're just cautioning him that there is potential rebuttal evidence on jail phone calls, tablets, prior consistent statements, and the testimony that will come out that the reason he stopped paying child support and alimony was because of her incarceration, which continues.
MR. OWENS: I think the State believes Brian Boone is a key witness. I think they anticipated calling him. We believe he's biased and has animus towards Sarah Boone.
THE COURT: Okay.
MR. OWENS: Sorry.
THE COURT: No, no. That's fine. You can go ahead. Just the wheels are spinning in my head.
MR. OWENS: You know, as it gets closer to his testimony, like I said, I think we should proffer whatever cross-examination. If I attempt to utilize anything from the domestic file, the family law file, that that be proffered outside the presence of the jury so the Court can make a ruling.
THE COURT: Okay. I'm going to overrule the objection at this time. It's -- it may go to bias. I understand the hearsay concept, but if there's specific statements that may have been made, I just don't know at this point in time. So I think there's enough potentially there for some level of impeachment maybe, and that may be enough. So I'm going to overrule your objection for now, but I am going to ask that before we proceed with anything from the family law case on cross-examination regarding Mr. Boone, that, you know, you ask to approach so that we can have that proffer and really dial it down at that point in time, okay?
MR. OWENS: Yes, sir.
THE COURT: All right. Thank you.