9.Judicial Notice of No-Contact Orders, Special Jury Instruction, and Trial Planning

THE COURT: I agree with that. Okay. So here's what we're going to do. It's 4 o'clock. Let's just go ahead and take that afternoon break at this point in time. We can address that after we have our comfort break, and then -- we can address that and then you can rest in the presence of the jury if you don't have anything else.

Okay. Thank you.

THE COURT: All right. Members of the jury, it is 4:01. At this point in time, we're going to go ahead and take that afternoon break. I've got a couple things I've got to address with counsels, so it may be a little bit longer, but we'll bring you back in as promptly as possible.

Again, same instruction I've given you before. Please don't conduct any independent investigation or research as to person, places, things, or charge involved in this case, and do not have any conversation amongst yourselves or anyone else about that. We will bring you back in as promptly as possible. Thank you.

THE COURT: You-all can be seated.

Let's go ahead and take a recess, a comfort break, for any of us and then we can address any argument with regard to the -- any other evidence that the defense may be seeking.

Let's come back here in about ten minutes, so 4:13, okay?

All right. Thank you. We'll be ina short recess.

THE COURT: You-all can be seated. Thank you.

We're back on the record. Case No. 2020-CF-2603, State of Florida versus Sarah Boone.

Appearances for the State?

THE COURT: Ms. Boone is seated at counsel's table, wearing the same dark gray suit and maroon blouse from this morning.

Mr. Owens, are there any other matters we need to address before you rest in the presence of our jury?

THE COURT: Yes.

State, have you seen them?

THE COURT: Understood.

Okay. You can bring them on up.

Thank you, sir.

The Court has been provided no-contact orders issued in Case No. 2019-MM-5062, on or about June 16, 2019, and a no-contact order in Case No. 2019-MM-5114, issued on or about June 19, 2019. Both cases styled State of Florida vs. Torres, Jorge, Jr.

Let me hear any arguments as to the judicial notice from you, Mr. Henderson.

THE COURT: But the case law says you can't utilize judicial notice to get around hearsay. I know 90.202 says that I may take judicial notice. 90.203 says that, upon sufficient notice being provided, which the State is conceding based on their argument, the Court shall take judicial notice of items identified in 90.202.

But my question is, the case law as identified in Professor Ehrhardt's treatise specifically says in Dufour v. State, 69 So.3d 235, which specifically talks about notice of judicial documents in a court file, that that doesn't get you around hearsay. So what's your response?

THE COURT: Okay. All right. Thank you very much.

State v. Mobley, 98 So.3d 124, by the Florida Fifth District Court of Appeal, signed in 2012, says that there's a procedure that specifically needs to be followed for judicial notice as set forth in 90.202 and 90.203. State is conceding that although there's not a writing, they're not objecting to the judicial notice concept, they're objecting to the evidentiary bases. I do find that it is relevant, but the problem is I have with hearsay.

And the Court in relying on the Florida Supreme Court decision in Dufour, D-u-f-o-u-r, v. State, 69 So.3d 235, at pinpoint 253 by the Florida Supreme Court in 2011, which states: While the Court may take judicial notice of documents in a court file which were properly placed there, this notice would not make the contents of the documents admissible if they were subject to challenge, such as when a document is protected by privilege or constitutes hearsay.

It is an out-of-court statement that is being offered for the truth, to wit, it is a no-contact order. And the requisite requirements for a business record under 90.803(6) (a) have not been met, nor has there been a certificate from the custodian of records as to those things as required by paragraph -- Section 6, Paragraph C in the timeliness of a certification, so I cannot accept judicial notice of these two documents. Even though the State is not conceding the procedure for judicial notice, I am sustaining the State's objection as to hearsay under the grounds and the exceptions that you have offered.

THE COURT: All right. Fine.

Then based on the Court -- on the concession by the defense -- or, I'm sorry, by the State, excuse me, do you have any other objections with regard to these two no-contact orders, Mr. Jay?

THE COURT: Okay. Madam Clerk, can you premark them, and then we'll identify them, please.

The no-contact order in 2019-MM-5062, dated June 16, 2019, has been premarked as AB. And the no-contact order in 19-MM-5114, dated June 19, 2019, is dated as AC.

Mr. Owens, you can approach.

Let's just tackle a couple other housekeeping matters that we have. You can move those in, when our jury returns, into evidence. Are there any other witnesses, evidence, or testimony, sir, that you're going to be offering this afternoon?

THE COURT: Thank you, Madam Clerk.

We'll bring the jury back at 9:00 a.m. tomorrow and you can continue with your evidence presentation at that time, including, but not limited to, calling any additional witnesses. The Court can have any further colloquy with the defense at that time. The State then could put on its rebuttal case.

State, how long do you anticipate, ballparking it for the Court, your rebuttal case?

THE COURT: Okay. Got it.

All right. Okay. So that's going to take us into tomorrow afternoon. Are we going to be in a position for the State to rest its rebuttal case tomorrow and proceed with closings or are we going to proceed with closings Friday morning after I've had the opportunity to have a full -- not that we would not have a full charging conference, but after having a charging conference Thursday afternoon with regard to the jury instructions?

THE COURT: So here's what we're going to do, okay? Let's just see how long the rebuttal case takes. And then if we have to do closings Friday morning, we'll have to do closings Friday morning. I'd rather go through and spend the time and make sure that we're all on the same page with regard to the instructions, especially due to the complicated nature of 3.6(f).

With regard to those, the Court will have Ms. Berrios email you -- she just started her drive back to Kissimmee, so it might come a little bit later this evening. I will have Ms. Berrios email to you-all the red line that the Court has worked on so far of the jury instructions provided by the State.

The defense is to provide its markup of the 3.6(f) and 3.6(g) instructions and any other defensive instructions that the defense seeks to have read to the jury.

THE COURT: Okay. All right. So just so the record is clear, we're referring to the State's Request for Special Jury Instruction Regarding Florida Criminal Standard Jury Instruction 3.9(b), Defendant's Statements, filed October 22, 2024. The provision that the State seeks to add to the 3.9(b) instruction reads as follows: Law enforcement is not legally required to ask a suspect whether he or she wants to talk to law enforcement after Miranda warnings are read to a suspect. This is, however, one of the factors you may consider whether the defendant's statements were voluntarily made.

State, have I read that correctly?

THE COURT: It's just a matter of where you-all want it. So I will add this to the red line to be sent out this afternoon.

Ms. Boone, I want to have a couple other conversations with you, ma'am. Again, I don't want to know specifics of anything that you or your attorneys have discussed, just whether or not you've had those discussions.

Did you hear the Court read the proposed additional language to the jury instruction about your statements?

THE COURT: I can.

So just to give you some background, ma'am, there's a form instruction, it's 3.9(b), and it talks about how the jury is to consider your statements that were read to them and provided in evidence through the course of the trial and that they're to consider the voluntariness of those statements and whether they were coerced.

The State is seeking to add the following language to that instruction: Law enforcement is not legally required to ask a suspect whether he or she wants to talk to law enforcement after Miranda warnings are read to a suspect. This is, however, one of the factors you may consider whether the defendant's statements were voluntarily made.

Do you understand that portion of the instruction?

THE COURT: Thank you. You-all can be seated.

Members of the jury, good late afternoon, early evening, I think. Again, could you just raise those hands, confirm that you've complied with the Court's instructions. The record will reflect all hands have been raised.

Members of the jury, it's 4:43. We're going to go ahead and break for the evening. I'm going to ask you to be back here at 9:00 a.m. tomorrow morning. We'll continue with the evidence and testimony presentation by the defense and then we'll proceed accordingly thereafter.

I want to read you the same instruction that I've read you multiple times over the last week, and I beg your forgiveness as you hear it again, but I just have to keep reminding you.

Jurors, you must not conduct any investigation on your own. This includes reading newspapers, watching television, or using a computer, cell phone, 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 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.

Jurors must not have 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, again, I thank you for your time, your sacrifice, and your attentiveness in this matter, and we'll see you tomorrow morning at 9:00 a.m.

THE COURT: You-all can be seated. Thank you.

Anything else we need to discuss, State, before we go into recess for the evening?

THE COURT: All right. We'll see you-all tomorrow morning at 9:00 a.m. Thank you very much.

Court's off the record.