1.Richardson Hearing

MR. JAY: Nor the new 119 pictures that's still not in a PDF form.

So of the 15 pages, the first two that they list are pages 9 and 10 out of 111, and I believe I've identified them as best I can, however, the Bates stamp from the hospital is over other text and there is no other Bates stamp, so I had to -- I'm guessing that it's pages 9 and 10 out of 111. It appears to just be a health information sharing sheet, like, a contract. I don't understand the relevance of those two pages.

Pages 21, and then they skip 22, 23, 24, and 25 are all part of her initial assessment on 1/23/18. We don't object to those pages, but for -- and I apologize that there is a but for -- the fact that at the bottom of page 25 begins her toxicology screening, and that does go into page 26. And they did not indicate that they want to use page 26, however, without page 26, we are going to experience relevancy issues and a 403 objection from the State. And that is because, in her toxicology screen for which she is coming to the treatment -- to seek treatment for depression, depression symptoms, she is at 165 for ethanol. Meaning, when converted, it's .165 grams per deciliter, over twice the legal limit. It's a central nervous system depressant. We are going to have at least one medical doctor -- well, two. The forensic pathologist will testify for the State and then our expert on battered spouse syndrome, if we get to that point, is also a medical doctor. She's a psychiatrist, not a psychologist. Will tell us that ethanol is a central nervous system depressant. I believe even the psychologist will be able to get that information in. So we are objecting to pages 21 through 25 coming in without page 26.

MR. JAY: I mean, in the sense that it applies to documents as opposed to statements. I mean, it is an out-of-court statement, so it is a rule of completeness issue, particularly when the symptoms and the complaints of the patient on that particular day were crying and being depressed and showing signs of uSing a central nervous system depressant.

The rest of the tox screen, pages 27 and 28, they did not list. We are not complaining that they are not including that.

Page 29 is another page they listed. That's more of a narrative about her visit on January 23rd, 2018. We do not object.

Page 43 is just her vital signs. We don't object.

Page 44 is more of the initial assessment on this January 23rd, 2018 visit. We do not object, nor do we object to pages 45, 46, or 47.

MR. JAY: Page 48, we are asking, again, that this be included. Again, I don't believe it's super mysterious why we are going from pages 43, 44, 45, 46, 47, and then skipping page 48, and then going to 49, but we do want page 48 included. On that page includes her height and weight at the time.

Page 63 --

MR. JAY: Page 63, it appears to be repetitive, but we don't have any particular objection to page 63 of the 111.

Page 108 seems to be another part of the initial assessment from January 23rd, 2018, so we don't object to that.

So, basically, we're asking for pages 26 and 48 to be included.

MR. JAY: Your Honor, there was just a reference that these 81 pages were all marked up by the defense. There's no -- there's no markings.

The issue and the confusion that the State Attorney's Office still has, though, is page 68 of 81 of these original 81 documents --

MR. JAY: Judge, the defense team has indicated to me that they intend on using demonstrative aids during opening statement. The ones that I've seen include jury instructions that may not be given and may not be given in the way that the Court gives and photographs that could be coming into evidence. I identified at least one that I don't recognize as something they sought to be seeking into evidence, perhaps two, so I believe we should have a discussion about each and every one of those. They should each be marked for the record purposes by letter so that we can refer to them and we can make a record.

I believe it's in the Court's discretion, even though I rarely see it exercised in this way in this circuit, to allow the respective parties to refer to actual exhibits during opening statements. I would urge the Court not to allow that. They're going to see them soon enough, but particularly with what they are seeking to introduce, given the motion in limine ruling that the Court has already issued that, at this point in time, the latest proffer of the defendant's testimony is not amounting to an overt act that will result in a self-defense instruction that will result in prior instances of violence coming in, that it would be extremely prejudicial, dangerous, and to use Mr. Cacciatore's analogy, very impossible to put that toothpaste back in the tube. If we amplify our opening statements, which may or may not come to fruition when we start talking about these past instances and battered spouse syndrome, it would be greatly amplified if they're actually seeing exhibits of the defendant's past injuries that she's attributing to the decedent. So I'm asking for us to discuss that.

MR. JAY: Judge, it's opening statements. We should we discussing what we anticipate to come into the trial, and that's going to be enough of a minefield. It really shouldn't be about the law. We'll both have an opportunity to use the actual jury instructions, which we have not decided upon. We will have the opportunity to use that overhead or any means that we want at the end of the trial during our closings to put up what is actually decided to be the law after the case has been presented.

So it's our position that we shouldn't be using demonstrative aids with portions of jury instructions. We're going to have that opportunity to argue how the law applies to the facts at the end, and we will have the correct version. And if the Court is following the tendency that I've seen in this circuit recently, we may, in fact, reed three-quarters of the jury instructions to them before we even begin our closing remarks. I think it's premature and problematic to be doing that at this time and it's not the role of opening remarks.

MR. JAY: Again, since it's not all of it, it's misleading. It's highlighting something about the law when we're just talking about open remarks -- opening remarks. Six through ten are optional. We haven't decided which out of the optional instructions, six through ten, we're going to use in this case because we have not heard the evidence yet.

So I just think it's inappropriate to be delving into pieces and portions of jury instructions before we get the evidence. What we should be doing is explaining to the jury what we believe the facts are going to show and the inferences that they can draw from them and argue the law later.

MR. JAY: Judge, the standard is, it is your discretion, and you will only be reversed if you abuse your discretion in this regard. The State is urging you, just flat-out as a matter of principle, to not allow the parties to go into the exhibits during opening statements.

They're going to be seeing the actual exhibit s in the very, very near future. I mean, we can do this. We can play the videos, we can show gruesome autopsy photographs on the big screen as well during opening statements, but those things are all coming. So we're just asking you first, in general, let's not extend the opening statements in that regard any more than necessary.

Now, our specific objections are this: With A, which is beneath everything now, but the bloody ear from the prior incident, I believe that is from a body-worn camera, and I think he indicated as much, it was not from her phone. If we get to that point where we know that this piece of evidence is coming in, that would be one thing, but right now the law of the case is, they cannot put on any evidence of prior instances of violence, any reputation evidence regarding the victim, or go into battered spouse syndrome in the evidence until self-defense has been established. And that self-defense must be established by the testimony -- and in this particular case, it has to come from the defendant -- of an overt act taken by the decedent which resulted in imminent threat of great bodily harm or death. And we have had that litigation. We have provided the Court the most recent testimony regarding the defendant's most recent statements from the two doctors and it doesn't exist at this time.

So it's one thing for the parties to go into things in opening statements that don't end up coming into evidence. And when the defendant does that, well, under King vs. State, the State gets to point out, Look, they made these promises in opening statements and they didn't come to fruition, so you need to disregard everything that you heard that was going to happen in trial that didn't.

But the problem, particularly for the State side, is we don't get to appeal. So if we go through opening statements and we have the jurors not only exposed to our words about things that may or may not be coming into evidence, but exposed to 1,000 words per picture, if a picture is worth 1,000 words, that amplifies the error, and it's an error the State has no remedy to fix.

So we're asking for A, which would absolutely come into evidence -- if we get this overt act testimony, which has not occurred yet, from the defendant, then certainly A would come in, and some of the other letters. And there's nothing wrong with him blowing it up like that. In fact, the State has it on their exhibit and will be showing it on the screen as well. There's not, you know, a lot of dispute over whether that will come in if we meet that standard of an imminent act -- or an overt threat of an imminent act of danger.

B, I'm not sure B was on their list of items that they sought to introduce from the phone. We would argue a picture of her with her dogs on her porch doesn't have any relevance. I don't expect that to be coming into trial, so we're objecting on that separate ground.

And then returning back to C, D, E, F, G, H, I, State is all aware of those photographs. We are prepared to introduce them ourselves through the digital evidence, there's no hiding those things, if we meet the threshold for this sort of evidence coming in.