5.Overt-Act Argument and Ruling
156 linesCOURT STAFF: Jury exiting.
(Jury exits.)
THE COURT: You-all may be seated. Thank you.
State, you can proceed with any argument at this point in time.
MR. JAY: Judge, I believe that's pretty close to what we already knew from the deposition testimony from the doctors relaying what she said for the proffer.
What we have here is testimony from the defendant. Her timeline is, she comes downstairs after having gone up to the shower and hiding, laying down, after being declared to be it. She comes back downstairs, and before she gets back to the bottom of the stairwell, she can see that the victim is in the suitcase trying to get flat because the lid is flopping and he's not -- he's not hidden just yet, and so she comes over. And I believe she testified she was moving it around before actually zipping the lid shut, but moving it around. Everybody is laughing. It's all fun and games still. And then she zips it, and it's still fun and games and everybody is laughing.
And then at this point, she testifies that this is now her opportunity to get on her pulpit to express her true feelings about everything. And that's when she sits down on the couch and opens up her phone device and begins recording what later turns out to be img 1062.movie at 11:12:45 for 2 minutes and 3 seconds.
During this period of time, the decedent is expressing meekly that he can't breathe. The only time he ever curses at her is, "Sarah, I can't fucking breathe. Babe, I can't fucking breathe."
He is demonstrating under the law that he is in fear of losing his life. She has committed an aggravated assault. She has committed false imprisonment. She was the initial aggressor. There was no overt act to justify these actions that she took against her boyfriend.
She then goes on to say that, during this period of time between the end of the movie at 11:14:48 and before the next one starts at 11:23, that it's now at this time, while he's still constrained and clearly unable to get out under his own power, despite having his hand out, she begins beating him with a bat, poking his hands, poking the suitcase with a deadly weapon. A bat is used for baseball, but it can also be used to harm another person. And according to the medical examiner's testimony, there was great harm caused to him; deep ecchymoses, bruises.
She can't start to do this out of fear. Like the analogy I gave earlier, if I pull a gun to rob you, Judge, and you pull a gun, I can't shoot you in self-defense. She -- she started this. She started this. There was no overt act and, therefore, we're asking for you to prevent, under the case law, any prior instances of violence, any reputation evidence, and any battered spouse syndrome evidence because that's simply just what the case ended up being.
Thank you.
THE COURT: Response?
MR. OWENS: Judge, this was a game by two intoxicated people. When people are drunk and intoxicated, they do silly and stupid things.
The evidence is uncontroverted that Jorge Torres willingly, by his own choice, elected to hide in the Suitcase. By their interaction between the two of them giggling and laughing at each other, he consented to her zipping up the suitcase and the playful nature of what was going on during those few minutes prior to the video.
When the video was turned on, there's a two-minute period where they're talking. He's saying, "I need to get out, I can't breathe." She's not taking him seriously, as you've seen from the videos, thought it was the boy crying wolf. She did not appreciate the fact that he could be actually having trouble breathing. And this was a chance for him to be heard by her about how she felt about some things involving their relationship.
A short time later, the video was turned off and then that period has been testified to by my client, and that period is uncontroverted. That's a second period of time. We've got that time for the video. We've got the 11 minutes. Then we've got the 22 seconds. And there's no video, there's no audio, there's no eyewitness, there's nothing but Sarah Boone's testimony, and she's testified here today that they had words, there were threats, he got his hand out of the suitcase. She knew by the threats of him getting his hand out of the suitcase that he was about to get out of the suitcase and he was going to hurt her. A reasonable person under that scenario would believe she was about to be harmed. She was in imminent threat of harm.
She blocked that attack by grabbing the bat, hitting his hand. When that didn't work, she started poking him with the bat and the suitcase. Eventually, she poked him several times. He put his hand inside the suitcase. She put the bat up. When she realized he was not going to do that any further, she flipped him over right side up. She still had a fear, knowing that if he got out, she would be harmed, he would beat her up. She went upstairs.
That is an overt act based on the discussions, coupled with the fact that he threatened her using the word, "I'm gonna fucking end it for you," or some words to that effect -- I don't remember her exact words -- just before she went upstairs while he was still in the suitcase. If she would have let him out -- and this is now -- now this is an event involving an omission, failure to act, failure to unzip him at that point before she went upstairs. The failure to act, the failure to unzip, which would have let him out, which would have created the situation that she believed was imminent bodily harm to herself.
And I guess I'll give a couple of examples. Let's say that a police officer is called to a scene and the only thing he hears is there is a suspect and the suspect may be armed. So, of course, the officer pulls out his revolver and he's walking around. Well, then eventually he finds the suspect and the suspect reaches for his waist. The officer doesn't see the gun, but the officer sees the movement to the waist. The officer fires and shoots the suspect. The officer is justified because there's an immediate threat of harm. The officer has to react instinctively. There's no time to think. Similar to the actions that Sarah Boone had to take.
Another example, you're in a bar with your buddies and you've had something to drink and another group has had something to drink, and one of your buddies gets into an argument with one of the buddies on the other party. And one of your friends, seeing that it's being escalated and the guy that's arguing with your buddy is aggressive, more aggressive than your buddy is. Your buddy is trying to settle the thing, but this other individual, maybe he's had too much to drink and he's more aggressive, so you go around behind this individual, and before he's able to strike your buddy, you grab him, you lock him up. That's physical restraint to block an attack. Or you grab him by the neck and you choke him. Physical restraint to block an attack.
That's what she was doing with the suitcase. If she let him out of the suitcase, she was going to be harmed based on him trying to get out with his hand, based on the threats he made while he had his hand out, and based on the threats he made while he had his hand inside just before she went upstairs.
Thank you.
THE COURT: All right. Thank you.
The Court is going to re-review all the case law that it has obtained in its research in this matter and come back with an oral ruling momentarily. Thank you.
(Brief recess from 2:25 p.m. to 2:39 p.m.)
THE COURT: All right. We're back on the record. State vs. Sarah Boone, Case No. 2020-CF-2603.
Appearances for the State?
MR. CACCIATORE: Dave Cacciatore on behalf of the State.
THE COURT: Defense?
MR. OWENS: James Owens for Ms. Boone.
MR. HENDERSON: Tony Henderson for Sarah Boone.
THE COURT: And Ms. Boone is currently seated at counsels' table, wearing the same clothing from this morning.
The Court has had the opportunity to review the case law, review the arguments provided by both the State and the defense. The Court finds that an overt act has been established. The case law is clear that a scintilla of the providing of an overt act is sufficient to provide the self-defense jury instruction.
An overt act is not something that's specifically defined in Florida case law. It's something that's from the totality of the circumstances, seemingly, under the authorities that the Court has reviewed. As such, the Court is going to find that under Holland, an overt act has been established, and will allow the defense to proceed with evidence of reputation and specific instances of conduct and battered spouse evidence, so long as the necessary predicates are established for those items.
Any questions or clarifications with regard to the Court's order, State?
THE COURT: Defense?
MR. OWENS: I think it would help if we went through my exhibits involving the blowup photographs and these other photographs, because I think some of it was contingent on the Court's ruling. So I don't know if you want to try to deal with all of them one at a time in front of the jury or whether we want to just talk about them ahead of time so that we know --
THE COURT: Are there any objections to those items?
MR. JAY: It depends on the items. I was shown a lot of different things, including, like, a rap sheet of -- between the victim and the defendant, so...
MR. OWENS: I've taken that out.
THE COURT: I'd rather do it now so that it's not up/down, in and out with the jury.
THE COURT: All right. Go ahead, Mr. Owens. What do we got?
MR. OWENS: Well, I had the clerk go ahead and mark everything. Some of it is a composite. Is this it here?
COURT CLERK: Uh-huh.
MR. OWENS: First is Defense Identification K. It's four pictures involving the injuries to her leg.
MR. JAY: Assuming a predicate for fair and accurate depiction of the picture is laid, we don't have any specific objections to K at this point.
MR. OWENS: Identification -- Defense Identification Composite L, two photographs of a burn to her leg.
THE COURT: You said that was L, correct?
MR. OWENS: Yes.
MR. JAY: Again, assuming proper testimony that the decedent was responsible for that in a criminal manner and fair and accurate depiction, we have no specific objection at this time.
THE COURT: Okay.
MR. OWENS: Defense Exhibit M for identification, two photographs. The first one is a photograph of the back porch. Sarah is on the back porch with her two dogs. The next photograph is a picture of one of her dogs on one of the outdoor couches.
MR. OWENS: Judge, the relevance is that he would threaten the dogs with harm if she didn't comply with his directives, and she -- he actually harmed the dogs, kicked the dogs as a threat to her. So to get her to do what he wanted, he used the dogs. And she was in fear for their safety, so she will testify about those threats.
THE COURT: Relevancy objection is overruled.
MR. OWENS: Identification -- Defense Identification No. -- or letter N, one photograph. It's a photograph of the living area, but also the stairs, and it shows that -- one of the allegations by the State is that the defendant --
THE COURT: Okay. No objection.
MR. OWENS: Now, Judge, this is where he took a bat -- it's five photographs where he took a bat to the TV, to Sarah's TV.
THE COURT: My understanding -- is this 0? This is still O, correct?
MR. OWENS: Yes.
THE COURT: My understanding from the State is there's no objection, so long as the foundation is established.
THE COURT: Thank you.
MR. OWENS: We also intend to introduce the video. There's a short video --
MR. JAY: It's on the State's exhibit too. We're not objecting to that, as long as the foundation is laid.
THE COURT: No objection, so long as foundation is established.
MR. OWENS: P, Identification -- Defense Identification P is two photographs of an incident in which --
THE COURT: All right. No objection, so long as appropriate predicate is established.
MR. OWENS: These next ones are individual photographs, not composites, but Q for identification is one photograph.
MR. OWENS: I was told this was separate from the burn. This was, I think, a slap or something or a hand to the leg, not the burn.
THE COURT: With regard to Q, no objection, so long as the appropriate foundation is laid.
MR. OWENS: Identification R.
THE COURT: No objection to R, so long as foundation is laid.
MR. OWENS: S --
MR. OWENS: -- for identification.
THE COURT: With regard to S, no objection, so long as foundation is laid.
MR. OWENS: T.
THE COURT: No objection by the State, so long as appropriate foundation is laid.
THE COURT: No objection from the State, so long as appropriate foundation is laid for U.
THE COURT: Same for V.
THE COURT: W.
THE COURT: xX.
THE COURT: /Y.
MR. OWENS: I've got some blowups, Judge.
MR. OWENS: A. Identification for A.
THE COURT: Were these the ones that we addressed pretrial?
MR. OWENS: Yes.
THE COURT: Okay. Thank you.
THE COURT: Okay.
MR. OWENS: In terms of introducing this as an exhibit into evidence?
THE COURT: Is it contained in K through Y?
THE COURT: Then -- is that accurate?
MR. OWENS: I believe so. I mean, I know the clerk probably doesn't want this blowup, but it's going to be easier to handle -- the clerk to handle the 8-and-a-half-by-11.
THE COURT: If it's -- I'll allow you to use it for demonstrative purposes, but I'm not going to accept it into evidence as it is duplicative of what's already in evidence as X, Defense Premarked X.
MR. OWENS: And then Identification C.
THE COURT: That was either -- it was one of the earlier ones we addressed. M or N was the staircase.
THE COURT: Okay. For the same reasons, you can utilize it for demonstrative purposes, but it's duplicative, as the exhibit itself will be entered into evidence, presumably.
MR. OWENS: D for identification.
THE COURT: Any disagreement that it's included in your premarked --
MR. OWENS: I agree.
THE COURT: Okay. Then same ruling. It is duplicative. You can utilize it for demonstrative purposes.
MR. OWENS: Identification E.
THE COURT: Is it included, sir, in K through Y?
MR. OWENS: Yes.
THE COURT: Then for the same reasons, it's duplicative. You can utilize it for demonstrative purposes only.
MR. OWENS: F for identification.
THE COURT: It's included in your submittals?
MR. OWENS: Yes.
THE COURT: All right. Same ruling. It's duplicative. You can utilize it for demonstrative purposes, but it will not be accepted into evidence.
MR. OWENS: Identification G.
THE COURT: Is it included in your submittal, sir?
MR. OWENS: Yes.
THE COURT: All right. For the same reasons, I find it's duplicative. You can utilize it for demonstrative purposes, but not seeking it into evidence.
MR. OWENS: Yes.
THE COURT: Same ruling. You can use it for demonstrative purposes, but it will not be received into evidence by virtue of it being duplicative.
MR. OWENS: Identification I.
THE COURT: Any disagreement with that, sir?
MR. OWENS: No, sir.
THE COURT: Same ruling. The Court finds it's duplicative. You can utilize it for demonstrative purposes.
MR. OWENS: Identification, Madam Clerk?
THE COURT: Hang on. Is that the house?
MR. OWENS: It's either delta or B.
THE COURT: I think that's bravo. Is it the defendant on the porch with the two dogs?
MR. OWENS: Yes.
THE COURT: That was premarked before trial as bravo.
MR. OWENS: Is that a B?
COURT CLERK: That's a B. Sorry.
MR. OWENS: Same.
THE COURT: It was as Defense M. Relevancy objection is overruled, but I'm not going to allow the enlargement as it's duplicative, because the native photo is in evidence, but you can use it for demonstrative purposes.
MR. OWENS: Yeah, I probably want to use these in closing and just use this -- use that for the testimony.
THE COURT: However you see fit, sir.
MR. OWENS: Okay. And this is not working today?
THE COURT: I can't speak to that. I don't know that anybody today has utilized it, but that's not connected to the overhead. That's separate and apart from the overhead.
MR. OWENS: 0h, okay.
Judge, nothing else through Sarah. There may be some bodycam footage to refresh memories, but we've got two deputies out there.
THE COURT: Okay. Any other exhibits with regard to Ms. Boone at this point in time, Mr. Owens?
MR. OWENS: No, sir.
THE COURT: All right. State, any reason why we cannot ask Ms. Owens -- or Mr. Owens to continue his inquiry of Ms. Boone and have her return to the witness stand?
THE COURT: All right. Mr. Owens, anything else we need to discuss, sir?
MR. OWENS: One moment.
THE COURT: Sure.
MR. OWENS: Judge, I think we're ready.
THE COURT: Okay. If we can bring Ms. Boone back up to the witness stand. Once she is seated, we can bring back in our panel.
All right. Let's go ahead and stand and bring back in our panel.
COURT STAFF: Jury entering.