4.Tonia Werner — Direct (Part 2)
177 linesDIRECT EXAMINATION
BY MR. OWENS:
MR. OWENS: Dr. Werner?
TONIA WERNER: Yes, sir.
MR. OWENS: Good morning.
TONIA WERNER: Good morning.
MR. OWENS: At some point, the state attorney notified you that you were to come today?
TONIA WERNER: Correct.
MR. OWENS: Did you and the state attorney have a discussion about your testimony?
TONIA WERNER: Yes.
MR. OWENS: When was that discussion?
TONIA WERNER: Briefly last night.
MR. OWENS: So you-all talked on the phone last night?
TONIA WERNER: Yes.
MR. OWENS: Have you-all had any discussions since the phone conversation last night?
TONIA WERNER: Briefly this morning.
MR. OWENS: And how long was the phone conversation?
TONIA WERNER: Less than five minutes.
MR. OWENS: How long was the face-to-face conversation?
TONIA WERNER: Less than five minutes.
MR. OWENS: Did you-all discuss that your testimony would be, that you did not have enough information that you gathered from Sarah Boone to form an opinion as to whether or not she suffered from post-traumatic stress disorder?
TONIA WERNER: Correct. That my opinion hasn't changed.
MR. OWENS: I'm sorry?
TONIA WERNER: Yes, that my opinion hadn't changed. That I didn't have enough information.
MR. OWENS: Okay. And did he -- did the state attorney speak to you about, that it didn't matter whether you had an opinion, if you didn't feel like the facts that Sarah Boone had given you as it relates to the facts at issue in this case, that if you didn't feel like post-traumatic stress disorder even applied, then you could answer that way?
TONIA WERNER: Correct. That was my opinion, correct.
MR. OWENS: But did he present that to you initially for you to form an opinion about it?
TONIA WERNER: No. My opinion was that it didn't apply because of the way that she described the incident to me.
MR. OWENS: Was that your opinion back when I took your deposition?
TONIA WERNER: Yes.
MR. OWENS: When did you form that opinion?
TONIA WERNER: When she described the incident to me.
MR. OWENS: Why didn't you let us know that was your opinion at the time that I took your deposition?
TONIA WERNER: You didn't ask me about that, sir.
MR. OWENS: Do you remember me asking you any other opinions that you may have as it relates to this case?
TONIA WERNER: You didn't ask me specifically about that.
MR. OWENS: I understand that, but you're saying you formed that opinion prior to the deposition, correct?
TONIA WERNER: Yes. The state attorney and I discussed that on the way out of the jail, as a matter of fact.
MR. OWENS: After the deposition?
TONIA WERNER: No, sir, after the evaluation.
MR. OWENS: Okay.
TONIA WERNER: On the way out of the jail.
MR. OWENS: All right. I asked you, were there any other opinions that you may express at trial after you had discussed that with the state attorney prior to the deposition; is that correct?
TONIA WERNER: Yes.
MR. OWENS: And so you were aware that I wanted -- I didn't want to be ambushed at trial. I wanted to know any and all opinions that you may be expressing in the Sarah Boone case?
TONIA WERNER: I didn't know what specific information you wanted, sir. That's why you had a deposition. I answered your questions. I didn't know what all information you wanted me to provide to you.
MR. OWENS: So, because I didn't ask you specifics, you felt like you didn't have to respond specifically?
TONIA WERNER: No, sir. I answered all of your questions. And, as I said, I'm happy to answer any questions that I'm asked. I don't know what questions you want me to answer.
MR. OWENS: But you know that this was a central issue in the case, did you not?
TONIA WERNER: I didn't.
MR. OWENS: Your opinion -- your opinion is relating to a central issue in this case.
TONIA WERNER: Correct.
MR. OWENS: You're aware that Sarah Boone is on trial for murder?
TONIA WERNER: That's correct.
MR. OWENS: And you had this opinion, when I was taking your deposition and I was asking you specifics about any opinions that you may be expressing in the trial of Sarah Boone, and you did not disclose it.
TONIA WERNER: Well, I told you that I would answer any questions that were asked of me. I have a number of opinions. I know that I don't feel that she's suffering from major depressive disorder, I didn't offer that opinion either. I have a number of opinions.
MR. OWENS: That's all the questions I have.
THE COURT: Mr. Jay, anything else?
THE COURT: This is your opportunity, Mr. Owens.
MR. OWENS: Inquire about what?
THE COURT: This is your opportunity to inquire. You are conducting a deposition. This is your opportunity and your only opportunity to cure any prejudice that we have identified with regard to those proffered opinions as it relates to the relationship of battered spouse syndrome and/or post-traumatic stress disorder as proffered.
MR. OWENS: The problem is now, Judge, is I've got my expert, and we weren't aware, you know, how in these type cases, the experts are allowed to listen to the testimony of the other experts and read the depositions of the other experts.
BY MR. OWENS:
MR. OWENS: Dr. Werner, were you given the opportunity to read Dr. Harper's deposition?
TONIA WERNER: I did.
MR. OWENS: I mean, that's standard operating procedure in these type cases and now I'm taking the deposition on the fly and I haven't had a chance to speak with my expert about those opinions in whether or not that would change her opinion. It just puts me in a very difficult situation. But if I'm ordered to continue the deposition, I will.
THE COURT: That's your decision. It's not an order. I'm just saying that this is the opportunity to cure that Richardson issue. You asked previously to strike the expert. I am disinclined to do that. The case law says that is an extraordinary remedy, one which I am not going to permit today.
BY MR. OWENS:
MR. OWENS: Dr. Werner, you realize you're in a courtroom?
TONIA WERNER: Yes.
MR. OWENS: And we're waiting on the jury on the trial of Sarah Boone?
TONIA WERNER: Yes.
MR. OWENS: Are there any other opinions that you intend to express in this trial that you have not disclosed to me in the deposition or you have not disclosed here today under oath?
TONIA WERNER: I'm happy to answer any questions that I'm asked.
MR. OWENS: Are you refusing to answer my question about any other opinions that you intend to express here today as it relates to Sarah Boone who is on trial for murder in the second degree?
MR. JAY: Judge, I'm going to object. The catchall vague question that Mr. Owens wants to ask this expert witness about any and all opinions she may or may not have, 99 out of a hundred attorneys would come in here and say, that's not how you do depositions of expert witnesses. You have to ask specific questions. Any time you ask a question like that of an expert, the expert is always going to say, Please ask me a specific question. And that's what she did then and that's what she's doing now. It is unfair and vague to ask somebody, tell me every opinion you have.
MR. OWENS: Judge --
THE COURT: Yes, sir.
MR. OWENS: -- we're in the middle of a trial. She's fixing to testify. She's had conversations with the state attorney. She knows what she's going to be asked and forms of opinions that she's going to express. That's why she's here to help the jury understand the science that relates to the law and express opinions. I mean, for me to ask -- we're playing hide the ball here? In the middle of a trial --
THE COURT: I disagree that there's any hiding of the ball. There's been a proffer that's been read multiple times as to the scope of the opinions regarding battered spouse syndrome and post-traumatic stress disorder and its relationship to the facts of the case as the defendant represented them. And the answer is, they are not relatable to the incident as relayed by the defendant. That is the opinion that has been proffered.
MR. OWENS: Can I continue with my deposition?
THE COURT: Yes, sir.
BY MR. OWENS:
MR. OWENS: Dr. Werner, do you recall expressing that you wanted more time to reflect as to whether or not Sarah Boone suffered from post-traumatic stress disorder?
TONIA WERNER: Yes. That I was going to review my notes to see if I had enough information in there to support or negate that.
MR. OWENS: All right. What additional information would you need for you to express an opinion that she suffered from post-traumatic stress disorder?
TONIA WERNER: So she did not give me information regarding the presence of intrusive symptoms. She didn't give me information regarding persistent avoidance. She didn't give me information regarding alterations and arousal or reactivity.
MR. OWENS: Anything else?
TONIA WERNER: No.
MR. OWENS: Would you agree you failed to ask her those questions?
TONIA WERNER: I asked her if there was any other important information that she felt like she needed to share with me at the end of my evaluation and she said no.
MR. OWENS: So a catchall question?
TONIA WERNER: Correct.
MR. OWENS: Were there any other personality disorders? Isn't that what you do as a psychiatrist, you diagnose an opinion -- express opinions about whether people suffer from personality disorders?
TONIA WERNER: Correct.
MR. OWENS: Are there any other personality disorders that you have formed opinions about Sarah Boone that you intend to express?
TONIA WERNER: No.
MR. OWENS: So narcissism you did not find?
TONIA WERNER: I found narcissistic traits.
MR. OWENS: In terms of your opinion that she suffers from narcissistic personality disorder?
TONIA WERNER: No, Sir. I said narcissistic traits.
MR. OWENS: Okay. So you don't have an opinion that she suffers from narcissistic personality disorder?
TONIA WERNER: Correct. She suffers from -- she has -- she displays narcissistic traits.
MR. OWENS: You expressed an opinion that she suffers from alcohol use syndrome?
TONIA WERNER: Alcohol use disorder.
MR. OWENS: Alcohol use disorder?
TONIA WERNER: Correct.
MR. OWENS: Is that still your opinion?
TONIA WERNER: Yes, it is.
MR. OWENS: Anxiety disorder. Is it your opinion she suffers from anxiety disorder?
TONIA WERNER: No.
MR. OWENS: Do you recall in your deposition indicating that you felt like she suffered from either anxiety disorder or adjustment disorder?
TONIA WERNER: That's correct.
MR. OWENS: And you've changed that opinion now?
TONIA WERNER: I have -- I'm leaning towards adjustment disorder secondary to her legal situation.
MR. OWENS: So you haven't formed an opinion as to whether or not she suffers from general anxiety disorder or adjustment disorder?
TONIA WERNER: Correct.
MR. OWENS: You agree that she suffered from trauma as it relates to the domestic violence history that she expressed to you from the intimate partner violence with Jorge Torres?
TONIA WERNER: Yes. As reported by her, yes.
MR. OWENS: Do you have anything to dispute that?
TONIA WERNER: No.
MR. OWENS: In your opinion, does she suffer from any form of psychosis?
TONIA WERNER: No.
MR. OWENS: Is it your opinion that Sarah Boone suffers from acute stress disorder?
TONIA WERNER: No.
MR. OWENS: Is it your opinion that Sarah Boone suffers from intimate partner violence?
TONIA WERNER: Yes. I think that there is enough history to have a volatile relationship between the two of them.
MR. OWENS: Because of that, do you believe that she, Sarah Boone, suffered from battered spouse syndrome?
TONIA WERNER: She may meet the criteria for that.
MR. OWENS: May. So it's possible?
TONIA WERNER: Yes.
MR. OWENS: Is that your opinion?
TONIA WERNER: Yes.
MR. OWENS: Definitively you can't say?
TONIA WERNER: There's a history of her having that, yes.
MR. OWENS: So you agree she suffers from battered spouse syndrome?
TONIA WERNER: Yes.
MR. OWENS: I believe we've covered anxiety disorder, narcissism, battered spouse syndrome, and alcohol use disorder. Are there any other opinions that you intend to express as it relates to that or any other psychological condition of Sarah Boone?
TONIA WERNER: No.
MR. OWENS: That's all the questions I have.
THE COURT: Any other arguments at this time?
MR. OWENS: No, Judge. Just what I've already made.
THE COURT: All right. The Court has conducted its Richardson hearing and made its findings. The Court, as previously identified, will not strike the expert as that remedy is quite draconian and I will not do so based on the questions that were asked as highlighted by the defense and the opinions that were offered.
The specific areas for which opinions are being offered were not inquired into, but the deposition did leave it open. I'll ask questions about any other opinions that I'm asked about or anything that I'm asked during the course of the trial. Specifically, page 59, 22 through 26 on one. Page 60, lines 11 through 25.
So, in the abundance of caution, the Court has permitted that in-court deposition.
Anything else, sir?
MR. OWENS: No, sir.
THE COURT: State, anything else?
THE COURT: All right. Let's go ahead and bring back in our panel and --
MR. BECK: Judge, before we bring the jury back in, may I approach with Mr. Cacciatore on a completely unrelated matter?
THE COURT: Does it need to be on the record?
THE COURT: Okay. Go ahead.
MR. CACCIATORE: We would concede that Detective Koepsell and Detective Lowen are not testifying again since they've been here in court this morning.
MR. JAY: Excuse me. I asked Mr. Henderson if you guys were calling Detective Koepsell again and he said no.
MR. BECK: We're not in our defense, our direct defense. There is a possibility that based upon the information the State is going to present today or this afternoon that we may want to seek surrebuttal and possibly through these witnesses. They are under subpoena. And I'm sorry, Mr. Henderson is not here. Just noticed her presence. Out of an abundance of caution, I think that we need to clarify for the record that they're here listening to the testimony.
THE COURT: What's your basis -- well, we're off the record. There's no jury here. That's fine. You-all stay where you are. What's the basis for your surrebuttal?
THE COURT: That doesn't answer my question. What's the legal basis of a surrebuttal?
THE COURT: Okay. Anything else, Mr. Cacciatore?
MR. CACCIATORE: No, Your Honor.
THE COURT: Okay. The rule of sequestration is still in full force and effect.
Detectives Lowen and Koepsell, good morning. I'm going to ask you to be excused from our proceedings and not view them and not have any communication amongst yourselves about testimony that has been previously given or any questions that have been asked or answered, and just keep your separate ways as it relates to this case and any questions or testimony that you intend to give, may give, or have given. And comply with any instructions that were provided to you by the State regarding the rule of sequestration. Thank you very much.
Anything else, Mr. Owens, we need to address?
MR. OWENS: No, sir.
THE COURT: Anything else, State?
THE COURT: All right. Let's bring back in our jury. You can continue your inquiry, sir.
COURT STAFF: Jury's entering.
(Jury entered.)
THE COURT: State, do you recognize our jury?
THE COURT: Defense, do you recognize our jury?
MR. OWENS: Yes, sir.
THE COURT: Thank you-all. You can be seated.
Members of the jury, thank you again for your patience. We had some issues I had to address with counsel outside of your presence, and we're going to continue the State's rebuttal case this morning.
Again, if you could please just raise your hands to confirm that you've complied with the Court's instruction during the break. Record will reflect all hands have been raised.
Mr. Jay, you may continue your inquiry, sir.
THE COURT: Approach.