5.Tonia Werner — Direct (Part 3)
84 lines(At the bench.)
THE COURT: Any response?
MR. OWENS: I disagree. I think that's the one where we talked about that I'm going to be able to use it to impeach her with her statements that she made in deposition versus the statements she made today, if I'm referring to the correct response. Which response is it?
THE COURT: What was your opinion? My opinion was she did not give enough information to diagnose her with PTSD at the time of evaluating her at the jail.
THE COURT: What else did you rely upon?
MR. JAY: No. I basically asked the same thing that my proffered questioning was asking. Then she gave this nonresponsive answer that has caused all this.
THE COURT: I'm going to overrule your request. The question was what was your opinion. And the answer to the last question was to what was your opinion.
(In open court.)
THE COURT: Your objection is overruled.
DIRECT EXAMINATION
BY MR. JAY:
MR. JAY: All right. Irrespective of whether anybody has an opinion about whether Ms. Boone was suffering from PTSD or BSS, irrespective of that, based on your evaluation of Ms. Boone and what she relayed to you about the facts of the case, does PTSD or BSS have any relation --
MR. OWENS: Objection. Asked and answered.
THE COURT: Overruled.
TONIA WERNER: No.
BY MR. JAY:
TONIA WERNER: The whole part where she's describing the part about playing hide and seek and that they were having a good time, they were laughing. When he got in the suitcase, when she found him, they were enjoying themselves. She zipped him up, they were still laughing, having a good time. All of that isn't consistent with her having a feeling of she's at imminent risk or imminent fear that there was an imminent risk of harm --
MR. OWENS: Judge, I'm going to object. Can we approach the bench?
THE COURT: Yes.
(At the bench.)
THE COURT: Legal grounds of the objection?
MR. OWENS: Judge, I don't object to her expressing --
THE COURT: What are the legal grounds of your objection? You just said, I object. What are the legal grounds?
MR. OWENS: It's an improper response to a question in which the ultimate issue of fact is being asked by the prosecutor. It's an improper answer to the -- the ultimate issue of fact is for the jury, not for her.
THE COURT: Response?
MR. JAY: This is no different than an expert Saying insanity applies or doesn't apply. It's their expert opinion on that portion of the law and it's permissible.
MR. OWENS: I do not believe that --
THE COURT: Just because -- even assuming that the answer embraces an ultimate issue, that didn't mean it's objectionable. It's not saying she committed homicide. It's not saying that she's negligent. It's not saying that she's punitive. It didn't go to any one of the specific elements.
MR. OWENS: She's not expressing a medical opinion. She's not expressing a scientific opinion. She's expressing an opinion as to whether or not her behavior, her conduct, her statements constitute an imminent threat. That is the province of the jury.
THE COURT: She didn't say that.
MR. OWENS: Yes, she did.
MR. JAY: This is the exact same thing as the doctor saying somebody didn't appreciate the legal consequences or did. There is an interaction of intersection of the law in psychiatry when this testimony comes in and it's not objectionable.
MR. OWENS: Think about what she said. She's ultimately telling the jury that there was not an imminent threat. That's a question for --
THE COURT: Essentially telling the jury and telling the jury are two different things. What specifically did she just say, Mr. Jay?
MR. OWENS: She mentioned -- I do not -- we can have the court reporter read it back, but it's a critical issue, Judge, about the ultimate issue of fact about whether this psychiatrist, based on a history my client gave to her four and a half years after this event, and whether or not I believed as an expert, no, that defense doesn't apply because she was not perceiving an imminent threat.
THE COURT: But the question didn't ask about a defense. Unless I missed something.
MR. OWENS: I think we need to re-read the question and re-read her answer. This is a critical issue about guilt or innocence that she is expressing.
THE COURT: Are you able to re-read it for me?
MR. OWENS: Judge, I'd ask that it be done outside the presence of the jury.
THE COURT: To the extent possible, if I have to have madam court reporter come up here and do that, I will do that.
COURT REPORTER: I'd have to disconnect.
THE COURT: It's going to disconnect everything? Okay. All right. Okay. All right. I'll take them out.
(In open court.)
THE COURT: Members of the jury, I have something I've got to discuss with counsel outside of you-all's presence. Same instruction, please don't conduct any independent investigation or research on the person, places, things, or charge involved, and don't have any conversations among yourselves or anyone else with regard to that, and we'll bring you back in as promptly as possible. Thank you.
(Jury exited.)
THE COURT: You-all can be seated. Thank you.
Madam Court Reporter, when you're ready.
(The requested question and answer was read back.)
THE COURT: Any other argument, Mr. Owens?
MR. OWENS: That invades the province of the jury. That's a decision whether or not she had imminent risk of harm or perceived an imminent threat is a question for the jury. This expert can express opinions on science, on medicine, but not on the ultimate issue of fact and explain to the jury that this defense doesn't qualify, that you should rely on me as an expert and I'm going to make the decision for you. Ladies and gentlemen of the jury, by telling you that under the facts expressed to me by Sarah Boone, she was not perceiving an imminent threat at the time.
THE COURT: Response?
MR. JAY: Judge, it's not an objectionable opinion. It's not an opinion on the ultimate issue. It's an opinion upon the applicability of a particular set of evidence that the testimony that the defense has offered, called battered spouse syndrome, to kind of help explain a portion of the justifiable use of deadly force or non-deadly force instructions.
She's not up there saying Ms. Boone was unjustified in doing what she did. She's not saying that justifiable use of force doesn't apply. What she is saying, is in her opinion, based on the facts that she relies on, given by the defendant herself just a couple weeks ago, that this particular set of testimony and evidence that has been offered through their expert, Dr. Harper, doesn't apply.
This is no different than one expert coming in and saying, well, yeah, you can know that the defendant was saying at the time despite his mental illness because he ran from the police, he hid, he concealed the evidence, so on and so forth. And, therefore, because of those facts, insanity doesn't apply.
And the defense expert may come in and say, well, you know, insanity does apply because my client, after stabbing her mother to death, called 911, was speaking unintelligibly and singing and greeted the officers at the door with a pair of knives and wouldn't drop the knives and was incoherent for 12 hours after the offense. Therefore, based on those facts, the expert says, well, insanity does apply. It's not becoming a lawyer, it's not becoming the juror, it's explaining a particular type of expert testimony and it just happens to disagree with Dr. Harper's.
And Dr. Harper came in and said that BSS does apply and that she was in constant fear and the reason she's in constant fear is because of all the past episodes and whatnot. It's permissible testimony, Judge.
THE COURT: Any other argument, Mr. Owens?
MR. OWENS: That's totally wrong. He claims -- the prosecutor claims Dr. Harper came in and said BSS does apply. That's true. But he just got through saying and trying to get the witness to say BSS is not to be regarded. Post-traumatic stress is not to be regarded. It doesn't even come into play. Post-traumatic stress, battered spouse syndrome does not even come into play, because at the time she was facing, according to this witness, no imminent risk of harm. Therefore, you can discount everything you hear, ladies and gentlemen of the jury, about battered spouse syndrome.
THE COURT: How does that have anything to do with whether or not it's an improper legal opinion under 90.703?
MR. OWENS: It is. It's the ultimate issue of fact in this case because self-defense has been alleged by the defense, and the issue for this jury is whether or not Sarah Boone had the right to defend herself with force, deadly force or non-deadly force, based on her beliefs and impressions at the time, whether they were reasonable under the jury instructions, under the special jury instructions that are going to be applied for battered spouse syndrome, under the jury instructions under justifiable use of deadly force, whether her perceptions about the threat was imminent and whether it was appropriate or reasonable to act the way she did. This expert is trying to say that she was not facing imminent risk of harm at the time.
THE COURT: Thank you both for your arguments.
The Court is going to overrule your objection and find that it is not an ultimate issue of fact as addressed by 90.703. The Court specifically relies on Dinkins vs. State, 976 So.2d 660, at pinpoint 661. In that case, a psychologist testifies -- in the instant case, in Dinkins, the psychologist's opinions were not legal conclusions. The psychologist did not opine on the defendant's guilt or innocence. Rather, the psychologist opined only as to whether the victim was, quote, mentally defective, end quote, incapable of consent to intercourse. Although the opinions did go to ultimate issues in the case, Florida case law -- or Florida law, excuse me, expressly provides that an expert witness may render such opinion. See section 90.703 Florida Statute, which provides that testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact. Thus, the jury had the power to accept or reject the opinions and was not bound by such.
For those reasons, your objection is overruled.
MR. JAY: Madam Court Reporter, I'm just going to ask you to read the question and answer to the jury, and then I have no further questions of the witness.
THE COURT: Okay. Thank you.
MR. OWENS: I'm sorry?
THE COURT: He is going to have Madam Court Reporter read back the question and the answer and then he is going to have no other questions for this witness.
MR. OWENS: I object.
THE COURT: Basis?
MR. OWENS: It was asked and answered.
THE COURT: Overruled. There was a pending objection. I'm going to allow the State to re-ask it so it's clear based on that objection.
MR. OWENS: Judge, it's 11:30. I'm going to be at least an hour for my cross-examination.
THE COURT: We're going to begin your cross-examination after we're done with the -- after the State advises the jury in open court that there are no more questions.
Let's go ahead and bring back in our panel.
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, Your Honor.
THE COURT: You may be seated. Thank you.
Members of the jury, again, if you could raise those hands. Juror No. 2, back right, he gets it. All right. Thank you-all very much. The record will reflect that all hands have been raised.
State, you may proceed.
THE COURT: Madam Court Reporter.
(The requested question and answer were read back.)
THE COURT: Any cross-examination?
MR. OWENS: Yes.
THE COURT: You may proceed, sir.