3.State Rests, Judgment-of-Acquittal Motion, and Pretestimony Evidentiary Discussion
282 linesTHE COURT: Yes, sir.
(Counsel conferring.)
MR. HENDERSON: Thank you, ma'am. I have no further questions.
THE COURT: Any redirect?
MR. CACCIATORE: No, Your Honor.
THE COURT: Can this witness be released, State?
MR. CACCIATORE: We have her subject to recall.
THE COURT: Ma'am, you're released subject to recall.
CHELSEY KOEPSELL: Great. Thank you.
(Witness stepped down.)
THE COURT: State, any other witnesses, evidence or testimony to be produced?
MR. CACCIATORE: Your Honor, at this time the State would rest.
THE COURT: Okay. Members of the jury, it is 10:22 a.m. I have some matters with counsel that I need to address, so we're going to excuse you for a short while. It's a great opportunity for us to take our morning break as well. Similar instructions that I've given to you over the last couple of days. Please do not discuss this case among yourselves or with anyone else. Do not conduct any independent research on persons, places or things charged or involved in this case. We'll bring you back in as promptly as possible.
(Jury exits.)
THE COURT: You-all may be seated. Thank you.
Defense?
MR. OWENS: Judge, we do have some motions, but my client needs a comfort break if we can do that, because it may be fairly lengthy before that.
THE COURT: All right. Let's go ahead and take the break. The Court is going to be in recess for ten minutes, and then we'll pick up any motions at that point in time. The Court is going to be off the record. Thank you.
(Brief recess from 10:23 a.m. to 10:41 a.m.)
THE COURT: You-all can be seated. Thank you.
We're back on the record, 2020-CF-2603. State of Florida versus Sarah Boone.
Appearances for the State.
MR. CACCIATORE: Dave Cacciatore on behalf of the State.
MR. OWENS: James Owens for Ms. Boone.
MR. HENDERSON: Tommy Henderson for Sarah Boone.
THE COURT: Do we have any motions?
THE COURT: You may proceed.
MR. BECK: Your Honor, at this time the defense would move for a judgment of acquittal. I'll start with just a real quick couple of comments, Your Honor. We know that JOA motions have become essentially pro bono, which may be why I have been assigned this responsibility today, but in this instance I want to make an argument that I think has some merit.
I've been paying close attention to the testimony in this case, and I want to point a couple things out. First of all, we know the Court has essentially assumed and is assigned the role of becoming a gatekeeper in this matter. We know from the testimony that's been presented in this matter that not only did law enforcement, but also the Office of the State Attorney had knowledge of these parties prior to the event having occurred and despite that, the State has proceeded with this prosecution based upon a criminal information as opposed to having taken it to the grand jury. That kind of places the Court in a special position to evaluate the nature of the evidence that has been presented.
The -- I want to focus on the second degree murder allegation. And one thing that occurred to me while watching the evidence as it was presented, watching the videos, particularly the interrogation, was part of the dialogue between Ms. Boone as well as Detective Scott Lowen at the end of the interrogation -- and I'm gonna paraphrase. I apologize, I should have written this down verbatim. I did not. But she's advised that she is being placed under arrest, something to that effect, and her response is, Why are you doing this? The detective's response to Ms. Boone is, Because George is dead? That's not enough. It's not enough to support a second degree murder prosecution, conviction or should it even be enough to allow this matter to go to the jury.
Now, there are three elements of the second degree murder Information. The first is that the victim is dead, that Mr. Torres is dead. We stipulated to his identity. There has been no argument to the fact or the idea that he died in this incident. However, the State also has to show that it was caused by a criminal act and that the act was imminently dangerous and demonstrated a depraved mind.
Now, the fact that it was imminently dangerous I think is belied by the fact that Jorge Torres voluntarily entered the suitcase, albeit under the influence of alcohol, but the perception of dangerousness that is attributable to the victim, apparently he did not perceive it to be a dangerous or an imminently dangerous situation in having entered the Suitcase, possibly because of the influence of alcohol on his capacity to make decisions should necessarily be attributed to the defendant as well.
But I also want to focus on the depravity issue, which the State must prove, and pursuant to the jury instructions in this matter, depravity is equivocated -- not equivocated, is the equivalent of ill will, hatred, spite or evil intent. And that's not enough. Not only does the State have to show depravity, but it has to show, because it's in the conjunctive, that the act demonstrates an indifference to human life.
The State has presented testimony and argument in this matter -- not argument, but testimony that, in fact, Jorge Torres was suffering. Suffering does not equal hatred. It does not equal ill will. And even if they were to have established negligence, that's not homicidal.
We know that suffering is something that the courts have been very, very cognizant of and very sensitive to. We know it from the field of capital punishment and incarceration. The idea that somebody suffers is not in and of itself homicidal, nor should it support the idea that there was indifference to the life of Jorge Torres by Sarah Boone. Was she angry? I think there's clear evidence that she was angry, but that's not hatred. And that's the element that has to be proven here. And I don't think there is a prima facie case that, in fact, she was -- that she demonstrated hatred so much as she demonstrated anger. It doesn't establish a prima facie case of second degree murder.
It's for those reasons, Your Honor, that I think that this matter should be -- the motion for a JOA as to second degree murder should be granted and this matter should be allowed to proceed solely ona manslaughter charge because, in fact, they have not established prima facie elements as required by law. Thank you, Your Honor.
THE COURT: Thank you.
Response?
MR. JAY: Yes, thank you.
The standard at this time is just a prima facie case. Whether any trier of fact in taking all the facts in the light most favorable to the State an inference is drawn from them establish the elements of the crime.
There are three elements to this crime. Jorge Torres is dead has been established by a prima facie case. The death was caused by the criminal act of Sarah Boone, that has been established. There was an unlawful killing of Jorge Torres by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
An act similar is imminently dangerous to another and demonstrating a depraved mind if it is an act or series of acts that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another. It's not Ms. Boone's subjective statements on February 25th, I had no idea you could die from being zipped into a suitcase for 13, 15 minutes before she goes to bed.
Two, is done from ill will, hatred, spite or an evil intent. We heard what she said, the two-minute video starting at 11:12 p.m. 45 seconds would be linked in Merriam Webster's digital dictionary for the definition of depraved mind. Fuck you, I don't care, laughing, is of such a nature that the act itself indicates an indifference to human life. Sarah. That's my name, don't wear it out.
Judge, there's no question that a prima facie case has been laid in addition to the two-minute video and then the 20-second video 11 minutes later. We also have the defendant's inconsistent statements that she has made in regards to these events and, therefore, we have that factual issue for the jury to decide. She made statements on the 911 call and to law enforcement, both on the 24th and 25th, that I have no idea what happened. I just went to sleep, everything was good. And then when confronted with her video on the 25th, we see that there are two distinctly different sets of statements that were made.
So this is sufficient at this stage and time for a jury question. Thank you.
THE COURT: Thank you.
Any other additional argument, Mr. Beck?
THE COURT: Thank you both for your arguments. The Court in viewing the light most favorable to the State, the Court finds that the State has presented competent but rebuttal evidence to establish each of the elements of the charge contained in the Information to the required level of a prima facie showing. As such, the defendant's motion for judgment of acquittal is denied.
Defense, do you intend on putting on a case?
MR. HENDERSON: Yes.
THE COURT: Okay. Ms. Boone, I have a couple of questions to go over with you.
MR. OWENS: Judge, if I may?
THE COURT: Yes, sir.
MR. OWENS: In a normal criminal trial, my position has always been to put on the defendant last, call whatever witnesses, put on exhibits, photographs and then the client would be the last person to testify. Because of the nature of this charge and our defense, self-defense and battered spouse, we understand that we have to put on her first, Sarah first, and the Court to then consider whether or not we've established enough evidence for a self-defense instruction. So she's gonna have to be going first as the witness.
I'm gonna need a few moments with her based on everything that's gone on, and based on that denial of that motion for judgment of acquittal to just go through it again because I know you're gonna ask to colloquy about all of that. So I'm gonna need a few moments with her. I don't know if ten minutes maybe for the three lawyers, four lawyers, to meet with her, I don't know if we can do it here or maybe back there, but just a short meeting.
THE COURT: Sure. I'll give you that opportunity, but before you do that, ma'am, I don't -- again, don't want to go into any specifics of any conversations that you've had with any of your attorneys in this case. Mr. Owens has identified for the Court his normal practice of calling a defendant last in a criminal case. In this case, he has advised that he wants to call you first. Without going into any discussions of any strategy that you had with your attorneys, do you understand the strategy that Mr. Owens and your team will be utilizing in your defense?
SARAH BOONE: Yes.
THE COURT: And are you in agreement with that strategy?
SARAH BOONE: Yes.
THE COURT: Counsel, you can have that opportunity to speak with her. The Court will remain here. I don't know --
Officer Jones, can we let them go back to have that conversation?
COURT STAFF: Yes.
THE COURT: You can go back and have the conversation. The Court will remain here and we'll be in recess for ten minutes. Thank you.
(Brief recess from 10:52 a.m. to 11:13 a.m.)
THE COURT: We're back on the record. Case No. 2020-CF-2603. State of Florida versus Sarah Boone.
State, appearances.
MR. CACCIATORE: Dave Cacciatore on behalf of the State.
THE COURT: Defense?
MR. HENDERSON: [[James Owens, Tony end for Sarah Boone Kevin beckon behalf Ms. Boone.
THE COURT: Ms. Boone is seated at counsel table wearing the same dark blazer and dark blue blouse from this morning. She is custody, however, not wearing any restraints, so she will be able to stand when our jury enters. And if she is called to testify in this matter, she will be able to walk to the witness stand.
Ms. Boone, I have a couple of questions to go over with you simply to our conversations earlier today. I don't want to know about any of the substance of any conversations you had with your attorneys, just whether or not you've had certain conversations. So far you've been present throughout the entire trial process. You've been seated the counsel's table. You've had the opportunity to observe the evidence presented by the State as well as the direct and cross-examination of the State's witnesses. Are you satisfied with your attorneys up and until this point?
SARAH BOONE: Yes.
THE COURT: Now, similarly, I'm gonna ask you questions about -- again, about specific conferences and conversations you've had with your attorneys. I don't want to note specifics, just whether or not those things have been had. Have you had the opportunity to discuss with your attorneys whether or not you would like to testify as a witness in this case?
SARAH BOONE: Yes.
THE COURT: Do you need any additional time to discuss that matter with your attorneys?
SARAH BOONE: No.
THE COURT: Have your attorneys discussed with you the potential benefits and potential harms of testifying as a witness in this case?
SARAH BOONE: Yes.
THE COURT: Are you satisfied with the advice from your counsels?
SARAH BOONE: Yes.
THE COURT: Do you understand that attorneys can make most of the decisions about trial strategy, they cannot determine whether or not a defendant testifies or not. Do you understand that?
SARAH BOONE: Yes.
THE COURT: Not even the Court can interfere with the defendant's right to make that decision. Do you understand that?
SARAH BOONE: Yes.
THE COURT: Do you understand that it's your decision and your decision alone?
SARAH BOONE: Yes.
THE COURT: While counsel can give advice on whether or not it would be wise for you to testify in this case, do you understand that you could ignore counsel's advice because the final decision is yours?
SARAH BOONE: Yes.
THE COURT: Do you understand that you have the right to remain silent?
SARAH BOONE: Yes.
THE COURT: Did you hear me explain to the jury at the beginning of the trial how the right to remain silent is an absolute, and the fact that a defendant did not testify cannot be considered as evidence of guilt or influence their verdict in any way.
SARAH BOONE: Yes.
THE COURT: Before the jury begins its deliberations, the Court will read another jury instruction if you decide not to testify. This instruction orders the jury not to consider your Silence as evidence of guilt or to consider your decision at all. Would you like me to read that instruction for you at this time?
SARAH BOONE: Yes.
THE COURT: It is instruction 3.9(a) entitled defendant not testifying. The Constitution requires the State to prove its accusations against the defendant. It's not necessary for the defendant to disprove anything. Nor is the defendant required to prove her innocence. It is up to the State to prove the defendant's guilt by evidence. The defendant exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by her decision. No juror should ever be concerned that a defendant did or did not take the witness stand to give testimony in the case. Do you have any questions about the -- this instruction?
SARAH BOONE: No, Your Honor.
THE COURT: Do you understand that if you choose to testify, you are waiving your right to remain Silent.
SARAH BOONE: Yes.
THE COURT: That means once you begin to answer questions, you have to answer all questions unless I instruct you not to answer a question. Do you understand that?
SARAH BOONE: Yes.
THE COURT: You cannot pick and choose which questions you want to answer and not answer. Do you understand that?
SARAH BOONE: Yes.
THE COURT: Do you understand that if you refuse to answer any questions, the Court can impose sanctions, such as holding you in contempt, striking your entire testimony and instructing the jury not to consider any of your testimony. Do you understand that?
SARAH BOONE: Yes.
THE COURT: If you choose to testify, you will also be subject to cross-examination and impeachment. That means the State could ask you about any prior felony convictions or convictions for crimes of dishonesty if you have any such convictions. If you have any such convictions, the questions will be limited to whether you have such convictions and the number of same. Do you understand that?
SARAH BOONE: Yes.
THE COURT: Are you aware if you have any such convictions?
SARAH BOONE: Yes.
THE COURT: State, are you aware of any felony convictions or convictions for crimes of dishonesty?
THE COURT: You have no such convictions? Thank you for that clarification.
Now, as there are no convictions and that that number is not in dispute, the State will not be permitted to inquire into those matters. Have you had enough time to discuss your decision to testify or not testify with your attorneys?
SARAH BOONE: Yes.
THE COURT: Again, do you need any additional time?
SARAH BOONE: No.
THE COURT: Has anyone forced you or threatened you to get you to testify or not testify in this case.
SARAH BOONE: No.
THE COURT: Has anyone made any promises to you to get you to testify or not testify in this case?
SARAH BOONE: No.
THE COURT: Are you satisfied with your counsel's advice so far in this case?
SARAH BOONE: Yes.
THE COURT: Are you making this decision freely and voluntarily?
SARAH BOONE: I am.
THE COURT: Did anyone force you, threaten you or coerce you to testify in this case?
SARAH BOONE: No.
THE COURT: Would you like to testify or not testify as a witness in this case?
SARAH BOONE: Testify.
THE COURT: Okay. And, ma'am, similarly, after you've had the opportunity to converse with your lawyers, again, I want to confirm that you are on board with the strategy that they have utilized in your defense in this case.
SARAH BOONE: Yes, I understand.
THE COURT: Including calling you first.
SARAH BOONE: Yes.
THE COURT: Okay. All right. I want to remind you, ma'am, that you can change your mind, you just have to let your lawyers know before the jury comes back in. Do you understand?
SARAH BOONE: Yes.
THE COURT: State, anything else we need to address?
MR. JAY: Just that the law of the case is there should be testimony from the defendant of an [[ouvert contact that particular day before there is (NOTE: fix steno above) ancillary things that comes with self-defense.
THE COURT: The Colin (ph) case speaks for itself anything further.
MR. OWENS: I do want to talk about that, but as it relates to her right to remain silent or testify, I have nothing about that.
THE COURT: What do we need to address in regards to Holland?
MR. OWENS: I have three issues on Holland the other is I have the gloves of my client, and I would like to take a few minutes to look at the suitcase and then look at the bat. And then the third thing is that the State had filed that motion for the in-camera hearing. I don't know, maybe we need to hear that before she testifies.
THE COURT: The Court is not gonna address that at this time. We'll address that later.
MR. OWENS: So the two things, number one, of course, I've got a lot of photographs about the prior violence that Jorge Torres committed on Sarah Boone and there is a dispute about whether or not I have to establish an overt act that she responded to, that she considered an imminent threat and that she took evidence or she took action to either block or physically restrain Jorge Torres from committing an act of violence on her.
But Judge, if you remember, during the two-hour interrogation the officers make mention that they are aware of the prior incidents of violence. So I believe the door has been opened that I can go into that based on that -- those statements by the two detectives. If you remember they introduced this two-hour video. She says, He comes at me all the time. Eventually, Sarah Boone realized that they had her phone and they were gonna see pictures, they were gonna see video tapes of evidence that Jorge Torres committed acts of violence on Sarah Boone. I think at that point she changed her tone about -- she was trying to protect Jorge, then she realized she would have to disclose some of the acts that had been committed on her by Jorge Torres, and so she did talk about him coming at me and we've had issues before, and the officers gave -- I can't remember exactly what they said, but yeah, we're well-aware of -- I don't know if they said the prior acts or we're aware of the domestic violence, whatever the case may be. I submit that opens the door. That was during their case in chief. They chose to play that entire video. And so I think I can talk about the prior bad acts before the event in question chronologically, and of course I've got a bunch of photographs that go into her -- physical evidence of her injuries at the result of Jorge's violence.
THE COURT: Response, if any?
MR. JAY: Judge, we're asking for the Court to maintain its ruling. We already read the instruction the police are allowed to tell her things to try and get a reaction from her. She affirmatively denied there was an overt act that night to the police. And the Court in the ruling pretrial, as we were are trying to get guidance on this, reviewed Ms. Boone's most recent statements on the matter and there is no overt act thus testified to. So we are hopeful that we will maintain that ruling, and I don't know how it prejudices her or her team in any way to establish an overt act on February 23rd, 2020 before we go into reputation evidence, prior incidents of violence or battered spouse syndrome evidence.
THE COURT: Any further argument?
MR. OWENS: No, sir.
THE COURT: I don't find the officer's statements are character evidence in your looking for specific instances of conduct which are going to be utilized for those specific purposes for reputation or violence to establish the fear component that the case law speaks about. The Florida Supreme Court decision in Holland is clear, that that overt act needs to be established before any of that evidence is submitted. I don't find it's an opening of the door and I'm gonna rely on what the Florida Supreme Court has told us to do.
MR. OWENS: All right. Judge, I have got to get the clerk to mark some photographs and then my client and I need to take that suitcase out of that box and inspect it, play with the zipper a little bit, and then also take that bat out of that paper bag and inspect it before she testifies.
THE COURT: Any response?
MR. JAY: I'm just confused why we haven't utilized the nearly half an hour or more that the Court has been off the bench to get these photographs marked. The defense team has been onboard for quite sometime. They did not request a second evidence view of the physical evidence that Ms. Boone already had an opportunity to do while she was pro se. It's 11:25. We need to try the case.
MR. OWENS: Judge, I think that she -- she had that evidence view, I think, with Billy Lane. I believe that was the day after I filed my notice of appearance, or maybe it was the day I filed my notice of appearance. I don't remember exactly, but it had already been previously scheduled. I was in Milton, so they went ahead and did it this morning at, I believe at the jail. I believe the evidence --
THE COURT: Any particular reason why it hasn't been done in the last 45 minutes when I sent my jury out.
MR. OWENS: Because I've been meeting with my client about her rights to testify or not and other related matters. So in terms of not giving her this evidence?
THE COURT: In terms of anything that the State just discussed.
MR. OWENS: I have just been busy which my client.
THE COURT: Okay. How much time do you need in order to pre mark these exhibits and look at the baseball bat and the suitcase which have been entered into evidence?
MR. OWENS: I would think 15 minutes.
THE COURT: I'm very concerned because it is 11:25 and I discharged our jury sometime ago, and I don't want to be in a position where we have to break in the middle of testimony.
MR. OWENS: May I suggest that we just take an early lunch? It's 11:30. Let's take an early lunch. We have got witnesses coming this afternoon anyway. If her testimony ends before 5:00, we have got one or two witnesses that are here and then I believe tomorrow is Wednesday, we have got Dr. Brannon (ph) that's gonna be here first thing Wednesday morning, and then I believe Dr. Harper is not gonna be here until Thursday morning. So I don't -- we're gonna have a little gap in time unless we could -- we have got to put on several officers about prior acts and all that. But I think for purposes of this, Judge, in the abundance of caution, I feel like I need to go over this evidence with my client before she testifies and I have not had a chance to view that evidence other than seeing it here today, but I think I need to do that with her before she testifies.
THE COURT: Can the parties approach for a moment?
(At the bench.)
THE COURT: I understand what it is you want to do. I get it that you have not participated in the viewing. My most pressing concern is our time with our jury. We have wasted substantially amounts of it.
MR. OWENS: Judge, I don't know if I would say wasted. I mean, we've been working.
THE COURT: From their perspective.
MR. OWENS: Okay.
THE COURT: Okay. They are sitting in that room waiting to be brought back in. And now I'm gonna bring them in and excuse them again for an early lunch. I understand that it's a lot of work and everyone is doing an excellent job so far, but we need to try to be more efficient with the time that we have. If there are exhibits that either the State or the defense that intends on using, let's pre mark them during this break, all of them. So we -- maybe not the rebuttal evidence because the defense hasn't rested yet, but at least for any evidence that you intend on eliciting over the next couple of days, let's go ahead, pre mark it so there's no concern, no question, no last minute markings. If it comes up, we will address it.
MR. OWENS: Can we do it during lunch?
THE COURT: We are going to recess in the next couple of moments.
MR. OWENS: Can you give us and the clerk some time?
THE COURT: I will have Madam Clerk stay behind so that you guys can do that. I don't know that I need to be there for that. The State should probably be here for it to confirm that. I'll bring the jury in, I'll ask them to be back here at 1 o'clock and at 1 o'clock we need to be ready to go.
MR. OWENS: JI understand. And, Judge, if I start it, I wouldn't be finished before lunch.
THE COURT: I understand that.
MR. OWENS: It would be broken up anyway.
THE COURT: I agree with you. I'm trying to avoid it.
Mr. Jay?
MR. JAY: Judge, I had the opportunity to take depositions of two witnesses last night. I'm just curious as to when this third witness is flying in from Jersey and is going to get deposed so we can start making arrangements with the court reporter.
THE COURT: Who is that?
MR. OWENS: I think these are people that four and a half years ago were tenants of that apartment when this occurred but they have dispersed.
THE COURT: So you took P.W. and who else last night?
THE COURT: All right. M.G?
THE COURT: All right. Got it, all right. And then as for -- okay. When do we expect Ms. Johnson to be arriving from New Jersey?
MR. HENDERSON: We tried to contact her last night, Your Honor, and she was asleep.
THE COURT: Okay.
MR. HENDERSON: We're trying to work with --
MR. OWENS: United airlines, flying in I believe Wednesday at 9:05 a.m.
MR. OWENS: It would be Wednesday morning.
THE COURT: Correct. I see arrival time at 9:05 a.m. So it's either the lunch hour or Wednesday evening, because I don't know with when the defense intends on offering that testimony. But my pretrial ruling remains the same, that before those persons are allowed to testify, the State has their opportunity and Similar with you, if it's a rebuttal witness, you'll have that opportunity as well. Okay?
Did you have the opportunity to address the USB to CD conversion because it was just on my list from yesterday?
MR. OWENS: Ms. Sanders?
(Attorney Sanders approached the bench.)
THE COURT: Where are we on the USB to CD conversion?
MS. SANDERS: oOh, I have all the videos on separate videos, separate discs.
THE COURT: Here's what we're gonna do. Bring the jury in, give them the same instruction, ask them to be released for lunch, return here at one. You'll have the opportunity to inspect the bat, inspect the suitcase, mark everything and we will start promptly at 1:00 o'clock.
Anything else, State?
MR. JAY: Judge, unfortunately because I just got made aware of their actual redaction requests today, what I'm gonna have to do is mark something for ID to go over with Ms. Boone during her cross-examination and then we're gonna have to reach some sort of agreement that whatever letter that ends up being, X, will be allowed to be substituted for Y after the redactions are made that they requested and if the State has any.
THE COURT: Are you referring to a body cam video?
THE COURT: Here's what we had discussed previously was with regard to the 911 call, the 3:51 time stamp reduction -- redaction, excuse me, and the body-worn camera redaction regarding arrest. And it takes time for the State's AV team to make those redactions. So I don't know if that needs to be a stipulation that is wrote up and provided into evidence that won't go back to the jury or something that is just a stipulation that's announced in open court.
Any thoughts on that, Mr. Jay?
MR. JAY: TI have got to go back and do all this work and kind of sort out what we're doing and see if there are things now that the State wants to redact now that I've got their input. I generally don't litigate against myself. So that's what I'm asking to do is go through these files with Ms. Boone. It will obviously have to be outside the presence of the jury because of the audio at some point at the end of her cross, but it's just not gonna be done before then.
THE COURT: Okay. Any response to that procedure? So it would be authenticated outside the presence of the jury?
MR. OWENS: By Ms. Boone?
THE COURT: By Ms. Boone during cross-examination.
THE COURT: For potential admission once the redactions are made. And it will be premarked as X and then what we will receive will be Y, which will be the redactions of X without any additional authentication. And obviously you'd have the opportunity to review those before they are admitted, but I think that's the Simplest, easiest way.
MR. OWENS: We could just stipulate.
THE COURT: Yeah. Okay, fine. Then let's do that.
MR. OWENS: Yeah. She doesn't need to authenticate it if it is what it is.
MR. HENDERSON: It is what it is.
THE COURT: If you have a stipulation as to authentication to those items, just work on the redactions.
THE COURT: With regard to the bat and the Suitcase, is there gonna be any demonstratives or anything that are done with those?
MR. OWENS: Well, the jury never got any closer than up here. So I may want the jury to get a closer view if I bring her down and want to show the jury. So I may hold the suitcase and have her standing next to me to show her how she left it in terms -- you know, you're well-aware the suitcase has two zippers and they meet at various points along that. I mean, and so she --
THE COURT: There's not gonna be any other manipulation of that exhibit maybe other than operating that zipper similar to how the CSI tech whose name is escaping me at the moment.
MR. HENDERSON: Roughgarden.
THE COURT: Roughgarden, thank you.
MR. OWENS: In opening and closing.
THE COURT: Okay.
MR. JAY: She should be prepared to stand down during cross-examination to come into the well too.
THE COURT: Very good. Then with that, I accept your stipulation as to not requiring authenticities with regard to those two items. We'll bring back in the panel and reconvene at 1:00.
Anything further, Mr. Jay?
THE COURT: Anything further, Mr. Owens?
MR. OWENS: No.
THE COURT: It is 11:35. Counsels have matters that they need to address with Madam Clerk for the pre-marking of exhibits and along with the review of the suitcase and bat which were previously entered into evidence. I'm going to bring our -- with basically agreement of the parties, I'm going to bring our jury panel in at this time, release them for lunch, give them a similar instruction to the instruction they have been provided earlier, and we will commence promptly at 1 o'clock this afternoon.
State, any disagreement with the battle plan so far?
THE COURT: Same question, Mr. Owens?
MR. OWENS: No, sir.
THE COURT: Let's go ahead and stand and bring back in our panel.
(Jury enters.)
THE COURT: State recognize the presence of the jury?
THE COURT: Defense recognize the presence of the jury?
MR. OWENS: Yes.
THE COURT: Members of the jury, once you're seated and comfortable if you could raise your hands to confirm that you complied with the Court's instructions. Thank you very much.
Thank you for your patience. The matters with counsel took a little bit longer than we anticipated. We're going to take an earlier break today. It is 11:35. We anticipate the defense putting on a case this afternoon. We don't want to get into it and have to break a half an hour into it. So we're going to go ahead and take a break at this time.
I'm gonna give you a similar instruction as I've read over the last couple of days. Jurors, you must not conduct any investigation on your own. This includes reading newspapers, watching television or using a computer, cell phone, or the internet, any electronic device or any other means at all to get information related to this case or the people and places involved in this case. This applies to whether you are in the courthouse, at home or anywhere else.
You must not visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during the trial. Jurors do not watch local news or read local newspapers.
The jurors must not have any discussions of any sort with friends, family members or even your fellow jurors about the case or the people and places involved. So do not let anyone make comments to you or ask questions about the trial.
I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an internet website, chat room or blog.
With that, members of the jury, I thank you for your time and your service and your attentiveness, and we'll see you at 1:00 o'clock this afternoon.
(Jury exits.)
THE COURT: You-all may be seated.
State and the defense, if you could please review the items and please mark every defense exhibit at this time with Madam Clerk, and I'll see you-all to commence promptly at 1:00 p.m. Court is in recess. Thank you.
MR. OWENS: I'm gonna need some assistance from my client, and can you leave her in the courtroom. Judge, they want to go take her out of the courtroom and I need her to view the evidence.
THE COURT: Just stay with her. Bruce, stay with her.
(Lunch recess taken at 11:40 p.m.)
(The following proceedings were resumed at 1:01 p.m.; stenographically reported by Breean Crisp.)
THE COURT: We are on the record --
MR. OWENS: My client is not here either.
THE COURT: All right. We'll wait for her. That's fine.
(Pause.)
(Defendant entered.)
THE COURT: 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.
THE COURT: Defense?
MR. OWENS: James Owens for Ms. Boone.
MR. HENDERSON: Tony Henderson for Ms. Boone.
THE COURT: Ms. Boone is seated at counsels' table wearing the same black jacket and blue blouse from this morning. We will be standing when our jury enters. She's in custody, but out of any restraints.
Now, she is testifying first. Once we bring in our jury, she will walk to the jury box and be sworn in in front of the jury.
State, are we ready to bring in our panel?
MR. JAY: Yes, Your Honor. I was able to get the redactions done. I've put a disk on Mr. Owens' notebook there. It has the case number on it and three black dots in Sharpie just so that -- a random way of saying what it is.
THE COURT: Excellent. Appreciate it. Thank you for getting that done over the lunch hour.
Defense, are we ready to bring in our jury?
MR. OWENS: I've got a couple of issues.
THE COURT: Yes.
MR. OWENS: Number one, Kevin Beck is working on --
(Mr. Beck entered.)
THE COURT: Let the record reflect that Mr. Beck has appeared.
MR. OWENS: For the record, I'd like to make two points about this issue about whether or not I can bring in evidence of prior acts -- prior bad acts prior to the overt act, and there's two reasons that I believe I should be allowed to do so.
One is, Judge, in that two-minute video, Sarah Boone makes a statement, "That's how I feel when you choke me." And then some moments later, "That's how I feel when you cheat on me." And she's angry at him and she's talking to him. She's talking to him in an intoxicated state and she's expressing her anger and why she is angry, and I ought to be able to elaborate on what that is that she's angry about as it relates to "when you choke me." That's my first motion.
THE COURT: Okay. Before you proceed --
MR. OWENS: The second one is, Judge --
THE COURT: Before you proceed with the second, is the second intertwined with the first?
MR. OWENS: No. I mean, it's a similar argument, but it's relating to something else.
THE COURT: Okay. Response?
MR. JAY: Judge, I don't disagree that they should be able to bring that in once they've established an overt act that is imminently dangerous to an objectively reasonable person. I believe that's the law under Holland.
THE COURT: Any other further argument, sir?
MR. OWENS: Not on that issue.
THE COURT: Motion is denied. The Court, again, is going to rely on the Supreme Court's guidance in these situations based on Holland, 916 So.2d 750, at pinpoint 760 through 761.
MR. OWENS: My second argument ties in to what he just said about what a reasonable person would do under the circumstances facing an imminent threat and whether a reasonable person would perceive the overt act on the part of Jorge Torres that was witnessed by Sarah Boone, would that be perceived by someone as a -- aS an imminent threat? And to some degree, you have to understand the history of Jorge Torres and Sarah Boone. They were together three and a half years. They were engaged, but there had been a history of violence.
And from the evidence that's been presented, facing the circumstances in total, if you take what she said at various times, you would understand that she became concerned when he came back from Publix with that second bottle of wine because she knew, when Jorge Torres gets to a certain level of intoxication, he gets sad, he gets moody, and eventually he gets belligerent and sometimes he can be violent. So she knew when he brought home that second bottle of wine that it was not going to be a good night. And she tried to keep him occupied and tried to keep his mind off of his troubles because she knew that, if he reaches a certain level and is dwelling on his hardships, that he will react to her in a violent way.
So she had that state of mind with that understanding of her history and his history. And his overt act, which she's going to testify to, coupled with the fact of her state of mind based on her past experiences with him in that intoxicated state and the fact that he is violent. So she was hypersensitive to danger and fear, and I think that ought to be allowed in as part of her -- collectively, an overt act. So it was culminated by his state of intoxication, coupled with his overt act, created the well-founded fear for her to block the attack, to self-restrain or physically restrain Jorge Torres in the suitcase, to actually use the bat to prevent him from getting out of the suitcase because she knew she was gonna get attacked.
THE COURT: And the basis of the opinion of "about to be attacked" is predicated on the prior incidences of violence, correct, based on the knowledge --
MR. OWENS: Well, there's an overt act committed by Jorge Torres, but she was heightened because she knows when he gets to that level of intoxication in that scenario, in that --
THE COURT: So I need clarification. What is it that you're asking me to do?
MR. OWENS: For me to be able to elicit from Sarah Boone that she was concerned once that second bottle was brought and that that's why she tried to placate him over the course of the evening and that's why she had a heightened sense -- or a heightened sense that he was capable -- Judge, due to that -- due to his degree of intoxication, that he may act violently towards her.
And the problem is, a lot of the problem is, Judge, he doesn't remember battering her the next day. That's part of the reason that she videotapes him and photographs him, and she starts to document what happens so that she can show him. She loves the man. She adores the man. She wants to marry him. She wants a life with him, but she's tired of being beat on, and so that all ties in to her behavior, her sense of nervousness at that point.
The reason she was so confident during that two-minute video is because she knew, okay, this is my chance, he can't get to me. I can tell him exactly what he does that bothers me, that hurts me and how I feel. And so that's all tied together with -- and then he starts to try to get out of the suitcase and she reacts the way she does.
THE COURT: Response?
MR. JAY: We held these arguments already. The Court has ruled. There are no new arguments being made. The Court understands exactly what Sarah Boone, the defendant, said to Dr. Werner on October 2nd. The Court knows exactly what the defendant said to Dr. Harper over the period of a number of months and years, and there was no overt act. The overt act has to be something that is objectively reasonable to cause a reasonable person to believe there is an imminent fear of great bodily harm or death.
What the testimony is, is not that that's what has occurred, that there's -- her new testimony is this generalized fear, but you've already read that and you've already ruled on that. And I'll just remind the Court that her previous testimony is: It's all fun and games. We're laughing. I zipped the suitcase shut. We're still both laughing. It's funny. And then the decedent says, I can't breathe, and then she flips a Switch, gets angry because it reminds her of all the times before where she is asserting that the decedent made her feel like she couldn't breathe, and then that's when she starts beating and shuffling the Suitcase so much that it flips over and hitting him with the bat.
We've covered this ground. Aggravated assault, aggravated battery, two independent forcible felonies. She's committing false imprisonment. She is the initial aggressor after there being no overt act. She can't start it and then say, Well, I'm in fear of retaliation. Because that's what her testimony was, is once I started doing these things, once I wouldn't let him out of the suitcase, I was afraid he would come out and harm me or kill me.
Well, Judge, if I pull a gun on you and I Say, give me everything you own on you right now and then you, in turn, pull a gun on me and say, Bam, bam, bam, bam, and shoot and kill me, and I shoot -- let me strike that -- you pull a gun on me to defend yourself and then I shoot and kill you, I can't assert self-defense. I can't say, Well, Judge Kraynick pulled a gun on me and I was in fear of death, because I had -- I was the initial aggressor. I was committing a forcible felony.
That's the facts of this case here according to her previous testimony. And the State concedes, if she wants to change her testimony again, that's one thing and then we'll cross that bridge when we get there, but if she testifies as she previously has, the Court has already ruled there's no overt act. And you've read the transcripts, you know what she has said.
MR. OWENS: Judge, she hasn't testified. She hasn't testified. Dr. Harper has testified. Dr. Werner has testified --
THE COURT: They have not testified. They've given depositions.
MR. OWENS: Well, given depositions, but she hasn't testified about the act in question. She hasn't testified about the event in question. She had consultations and evaluations by Dr. Harper where they had discussions that Dr. Harper could relate in her testimony. Dr. Werner can say what was said during the evaluation. Again, both of those were not recorded. There may be disputes. I disagree with his characterization of that assessment, but it's up to Sarah to tell the truth here today. She's under oath. She's under oath today. She's got an obligation to tell the truth. If he thinks she's made prior inconsistent statements, it's up to him to impeach her with those inconsistent statements.
THE COURT: To the extent that you are requesting permission to go into, presumably and seemingly, prior bad acts, vis-a-vis, he got the wine and I know what happens when he gets it and everything that follows from that, those are bad acts. That is character. And the Florida Supreme Court has provided guidance in circumstances, specifically in Holland, on what needs to be done.
You're attempting to provide information that the defendant was apprehensive of the victim at the time of the homicide by virtue of the wine, et cetera, as you've proffered. That's bad character evidence that you're going to be bringing in, historic bad character evidence. This is what happens when he drinks. This is what happens when I don't placate him. This is the Situation that I find myself in, which inevitably may dovetail into prior instances of abuse.
That's all prohibited character under 404; 90.404. And the carve-out for that is, if an overt act is established. It's not a subjective standard. It's an objective standard. The Jury Instruction 3.6F identifies it being an objective standard and the Oquendo case specifically tells us that it's an objective standard.
In Oquendo, the Second DCA in 2023 stated: The conduct of a person acting in self-defense is measured by an objective standard, but the standard must be applied to the facts and circumstances as they appeared at the time of the altercation to the one acting in self-defense.
I'm going to rely on Holland. Holland is the law of the land. It is what the Supreme Court has told us to utilize. That's what I will be relying on. The overt act has to be established.
MR. OWENS: Ms. Boone, do you understand that?
SARAH BOONE: I do.
THE COURT: Okay. Anything else --
MR. OWENS: She understands we cannot talk about any prior bad acts or anything of that nature until we talk about the actual event, the attack, correct?
SARAH BOONE: Uh-huh.
MR. OWENS: You understand?
SARAH BOONE: Yes.
THE COURT: Do you understand that?
SARAH BOONE: I do.
THE COURT: Okay. Anything else, State?
THE COURT: Defense, anything else, sir?
MR. OWENS: No, sir.
THE COURT: All right. Let's go ahead and stand and bring in our jury.
COURT STAFF: Jury entering.
(Jury entered.)
THE COURT: State, do you recognize our jury?
MR. CACCIATORE: Yes, Your Honor.
THE COURT: Defense, do you recognize our jury?
MR. OWENS: Yes.
THE COURT: All right. Thank you. You-all can be seated.
Members of the jury, after seated and comfortable, if you could raise your hands to confirm that you've complied with the Court's instructions during the break.
The record will reflect all hands have been raised.
With that, State has rested. The defense is going to put on a case.
Defense, Mr. Owens, you can call your first witness.