6.Tonia Werner — Cross (Part 4)
751 linesCROSS-EXAMINATION
BY MR. OWENS:
MR. OWENS: Dr. Werner, good morning.
TONIA WERNER: Good morning.
MR. OWENS: What all did you consider collaterally as it relates to your opinions you're expressing here today?
TONIA WERNER: I had a number of documents that I reviewed. I have a list. I had the Orange County Sheriff's Office investigation report. I had a transcript of a two-hour interview of the defendant. I had --
MR. OWENS: That's the two-hour interrogation with Detective Lowen and Detective Koepsell?
TONIA WERNER: It was an interview, yes.
MR. OWENS: Excuse me?
TONIA WERNER: Yeah.
MR. OWENS: Okay.
TONIA WERNER: It was labeled an interview.
Then I had a transcript of a second interview the next day of Ms. Boone. I had medical records from Aspire Health and Advent Health. And then I had some cell phone records. And I also received the deposition of your expert.
MR. OWENS: The deposition of Dr. Julie Harper?
TONIA WERNER: Yes.
MR. OWENS: Okay. And did you -- did you listen to Dr. Julie Harper's testimony in this trial of Sarah Boone?
TONIA WERNER: No.
MR. OWENS: Do you agree you have a right to do that?
TONIA WERNER: Yes.
MR. OWENS: And did you listen to Sarah Boone's testimony in the trial of this case?
TONIA WERNER: No.
MR. OWENS: Do you agree you have a right to do that?
TONIA WERNER: Yes.
MR. OWENS: And you elected not to listen to her testimony before expressing opinions here today?
THE COURT: Overruled.
TONIA WERNER: I did not have time to do that.
BY MR. OWENS:
MR. OWENS: You did not have time to do that?
TONIA WERNER: Correct.
MR. OWENS: She's on trial for murder --
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: You said you considered some text messages from Sarah Boone's phone?
TONIA WERNER: I reviewed them, correct.
MR. OWENS: Would it be fair to say that of those text messages they're not necessarily overly relevant?
THE COURT: Yes.
(At the bench.)
THE COURT: Yes, sir.
MR. JAY: This is outside the scope of what she reviewed for her opinions that were expressed today. The opinion she expressed today was based on the evaluation of Ms. Boone.
THE COURT: Response?
MR. OWENS: Judge, she considered -- she considered everything that was given to her. She reviewed that -- everything that was given to her before she went to the jail and had interviewed Sarah Boone, so she had that in her mind when she interviewed her Sarah Boone. And her opinions are tied to the paperwork that was given her. That's standard operating procedure of any expert in this field who relies on collateral sources, as well as the assessment made of the patient.
THE COURT: Any response?
MR. JAY: May I voir dire the witness then and ask her did this inform your opinion on what you just expressed about inapplicability of BSS and PTSD to the facts of this case?
THE COURT: But it was provided to her, correct?
THE COURT: Yeah, I'll allow you to voir dire the witness. Go ahead.
(In open court.)
VOIR DIRE EXAMINATION
BY MR. JAY:
MR. JAY: Regarding these text messages that you were provided, did that inform your opinion that you just expressed about the inapplicability of BSS or PTSD to the facts of this case?
TONIA WERNER: No.
CROSS-EXAMINATION (CONTINUED)
BY MR. OWENS:
MR. OWENS: Did it apply to your opinion that Sarah Boone suffers from battered spouse syndrome?
TONIA WERNER: No.
MR. OWENS: Are those -- that information, when you expressed opinions in court about a patient or about an individual, you rely on your personal assessment, as well as the documents and evidence that you're provided and asked to review, are you not?
TONIA WERNER: Correct.
MR. OWENS: And in this case, your testimony is that you reviewed all of that information before you interviewed Sarah Boone for two and a half hours on October the 2nd of 2024, 22 days ago?
TONIA WERNER: Correct.
MR. OWENS: So you had the information --
TONIA WERNER: Yes, ma'am.
MR. OWENS: -- the documents? You read the documents?
TONIA WERNER: Yes.
MR. OWENS: You read all the text messages?
TONIA WERNER: Correct.
MR. OWENS: And you're going to express some opinions here today, are you not?
TONIA WERNER: Correct.
MR. OWENS: You're going to express some opinions about narcissism --
THE COURT: Yes.
(At the bench.)
MR. JAY: This is outside the scope of direct. I didn't ask her about narcissism or any of these things. If they want to recall my witness, they can, but this is way outside the scope of cross.
THE COURT: Response?
MR. OWENS: Judge, this is an expert witness. We're given wide latitude to cross-examination. I can't believe you're trying to limit --
THE COURT: But she didn't offer any opinions on narcissism, so what facts or consequences make it more or less probable? Even if it may be in the deposition, what does it matter for the purposes of today based on what she rendered opinions on?
MR. OWENS: I'm allowed to -- I'm allowed to question her on any opinions that she may have about my client. Just because they specifically only want to ask her about one opinion that she has about that issue, does not limit me from asking an expert witness in psychiatry about other conditions that she may or may not suffer from as it relates to the ultimate issue that she's expressing and asking the jury to decide on the issue of self-defense, battered spouse syndrome, whether she acted appropriately under the circumstances.
THE COURT: Anything further?
MR. JAY: Judge, the reason that the State went into the narcissistic personality traits that Dr. Harper expresses that she has, and the reason we had Dr. Brannon explain all these things was because it specifically relates to the credibility of the patient or the client informing the doctor and it goes to the weight and credibility of the opinion that they render. So that's what we got into the alcoholism with, that's what we got into the narcissism with, and all those things were asked and answered by their experts as to directly relating to the credibility of the historian giving that information.
So if he wants to impeach his client's statements by having her express that she opines that she had narcissistic personality tendencies, that's on them, but --
THE COURT: I'm not addressing that.
MR. OWENS: Dr. Brannon testified, Dr. Harper testified it's standard operating procedure to rely on all those --
THE COURT: But that's not the issue. The issue right now is whether it's outside the scope. That opinion was not offered. I'm going to overrule the objection, but I find that it has really limited relevance based on what her opinions were. But I'm going to allow you to proceed on it.
MR. OWENS: Well, Judge, if I'm not allowed to explore --
THE COURT: That's not what I said.
MR. OWENS: -- her opinions --
THE COURT: That's not what I said. What I said was, is I'm going to allow you to do it. But she didn't offer those opinions.
MR. OWENS: I understand that and I'm allowed to cross-examine her that she didn't find certain diagnoses.
THE COURT: The only issue before me right now is an opinion on narcissism. The State's objection is that's not being offered. It's not relevant. I'm going to overrule their objection, but just be mindful that they're not offering any of these opinions.
MR. OWENS: Well, it goes to the other objection about whether I can go into what other evidence she relied upon in expressing her opinion as it relates to Sarah Boone, and she relied upon collateral sources including --
THE COURT: That's not in front of me right now. That issue is not in front of me. There's been no objection to that at this point in time. The only objection was to the text messages and it was not a basis --
MR. OWENS: Can we go ahead and talk about it?
THE COURT: Sure. Go ahead.
MR. OWENS: Well, I think this all started when I was talking -- asked the expert, Dr. Werner, about Sarah being -- cell phone records, and I believe the state attorney provided her -- I'm not sure if it was -- I'm pretty sure it was text messages from that cell phone, and I believe the testimony from Dr. Werner is going to say -- and the reason this comes up is I know they're going to introduce a bunch of text messages --
THE COURT: What are you trying to get at?
MR. OWENS: Judge, I guess --
THE COURT: If you're getting into the basis of her opinion and what was relied upon, you're absolutely allowed to do that, but you have to understand, based on what opinions were elicited during direct and what the Court's heard, none of that mattered for the purposes of the opinion she testified for today. If you want to do that, I'm not going to foreclose you from doing it. It's your decision.
MR. OWENS: If they're going to object to me asking her about all that information, all the evidence -- and I'm going to get into the medical records --
THE COURT: I'm going to --
MR. OWENS: -- I'm going to get into the Advent records --
THE COURT: If that was a basis of her opinion, you're allowed to explore it. That's all I'm saying.
MR. OWENS: Are you going to be objecting to --
MR. JAY: The testimony that she gave was -- outside materials were absolutely irrelevant to the opinion she gave --
THE COURT: I understand that.
THE COURT: I understand that. If he wants to explore it, he can explore it. It may not be beneficial. I don't know.
MR. OWENS: I need a ruling, Judge, because if you're going to rule that I can explore that --
THE COURT: I've already ruled it, sir. I said you can explore it. I said you can.
MR. OWENS: Okay. But --
THE COURT: The problem is, I don't know what the utility of it is going to be because of the limited scope of the opinions. She didn't rely on anything of that stuff in forming the opinions that she's done today. If you want to do that, you can do that. I'm not going to say no.
MR. OWENS: Okay. His suggestion was, and my thing is, I'm going to get into medical records of Sarah Boone's and I'm going to get into specific notes about those medical records relating to her Baker Acts.
THE COURT: Okay.
MR. OWENS: If that's going to be objected to because it was not relied upon, then I'm going to need to call Dr. Werner as my own witness as an adverse witness.
THE COURT: Okay. Wait a second here, okay? Did she rely on medical records?
MR. JAY: She was provided them, but her direct testimony that we all just heard together was, it did not inform her opinion that BSS and PTSD do not apply to the facts of this case --
THE COURT: If you're able to tie it that she relied on them somehow, we can address that. It doesn't address any issue of hearsay or a 704 issue.
THE COURT: On cross-examination you're allowed to go into it.
MR. JAY: -- if an expert relies upon -- what she testified today, she did not rely upon it. So each time he brings up a new piece of evidence, I'm going to voir dire her and ask her if that informed her one opinion she gave.
MR. OWENS: Judge Kraynick, Judge Kraynick.
THE COURT: Yes, sir.
MR. OWENS: That's what I'm getting at. Let's not bicker and fight about this. If he's taking a position that he's going to object to everything, but he's not going to if I call her as my own witness and I can treat her as an adverse --
THE COURT: No, I think it's the same --
MR. OWENS: -- witness, let's do that.
THE COURT: -- it's the same problem.
THE COURT: But that's -- he's correct on that. 90.704 prohibits that. You're allowed to do it on cross, but the problem is it's not a basis of her opinion of what was offered today. So 702 tells us what we need to do. How's it relevant for the purposes of her opinion that was provided today? Yeah, I looked at these medical records, but they have nothing to do with the opinion I relied -- I opined on today.
MR. OWENS: It's not -- that's not the issue. The issue is cross-examination and wide latitude is allowed especially for an expert witness --
THE COURT: You're not answering my question. The opinion that was offered was, this is my opinion. BSS and PTSD are not applicable based on what was reported to me. How do the medical records have anything to do with that as a sufficient fact and data point that she relied upon to render that opinion? That's the first step.
MR. OWENS: It's her opinion. I can expose her opinion as not reliable. I can expose that she admits that she suffers from battered spouse syndrome. I can expose her opinion that she suffers from alcohol use syndrome. I can expose her opinion that she suffers from an anxiety disorder or adjustment disorder. I can expose her opinion that she meets some criteria for narcissism and she relied on those records in formulating that opinion, as every expert does in the field. I'm granted wide latitude to go into all that to express -- to attempt to impeach, to show that she's biased, to show that she's a State witness and that her only job here is to try to help the State win their case.
THE COURT: I understand. I'll allow you to proceed, but you're going to take the answers as they come, because if she keeps saying, it had nothing to do with my opinion today, nothing to do with my opinion today, that's -- you're going to be stuck with that. I don't know what she's going to say, but, I mean, the State's opinion was very truncated as to what they're offering her for.
MR. OWENS: And from my position with the state attorney, is if you're going to be objecting every time, and you suggested that I just call her as my own witness, I'm willing to do that just to save some time because I don't want to get in this and spend ten minutes up here every few seconds. If it would be better, I'll call her as my own witness.
THE COURT: Anything else, Mr. Jay?
MR. JAY: Just so that we understand the law, you can't get into the inadmissible evidence on direct --
THE COURT: I know that.
THE COURT: I'm not addressing surrebuttal at this point in time. But he's correct, 90.704 is going to prohibit her on direct examination from testifying directly to inadmissible evidence. Cross is a different kitty. The rule specifically addresses that.
I'm going to allow you to do it. And you can object, Mr. Jay, and --
THE COURT: -- we'll address it as we go. You may proceed. Objection is overruled.
(In open court.)
THE COURT: Objection is overruled. You may proceed.
MR. OWENS: Thank you, Judge.
BY MR. OWENS:
MR. OWENS: Ma'am, is it fair to say, in your evaluation of Sarah Boone on October 2nd of 2024, that you felt like the text messages that you received from the state attorney --
THE COURT: Overruled.
BY MR. OWENS:
MR. OWENS: -- are not relevant to your evaluation of Sarah Boone?
TONIA WERNER: I wasn't sure at the time who actually -- I wasn't sure whose phone number it was, in all honesty. We discussed that in the deposition, and I wasn't sure, I had no proof of who actually sent the text, who actually had possession of the phone and put the texts -- any of the texts in.
BY MR. OWENS:
MR. OWENS: Well, I was there for the deposition, was I not? Or I appeared by Zoom, did I not?
TONIA WERNER: No, sir, you were present in person.
MR. OWENS: Okay. I'm trying to think --
TONIA WERNER: Oh, deposition --
MR. OWENS: The deposition --
TONIA WERNER: -- you appeared by Zoom, yes.
MR. OWENS: You appeared by Zoom, I appeared by Zoom, the state attorney appeared by Zoom?
TONIA WERNER: Yes, that's correct.
MR. OWENS: And we discussed that these were the phone records from Sarah Boone's phone?
TONIA WERNER: Yes.
MR. OWENS: Okay. And at that time, you said they're not necessarily overly relevant to your evaluation; did you not say that?
TONIA WERNER: I don't recall specifically. I'm happy to look at it if you would turn me to the page.
MR. OWENS: Can I approach the witness?
THE COURT: You may.
TONIA WERNER: I have it.
THE COURT: Just a moment.
BY MR. OWENS:
MR. OWENS: You got it?
TONIA WERNER: I do.
MR. OWENS: Page 14, my question is at line 3. Your answer begins at line 5.
TONIA WERNER: Correct.
MR. OWENS: And you agree with that?
THE COURT: Let him finish.
MR. OWENS: I'm going to ask another question about the text messages, Judge.
THE COURT: You just said line 5.
Approach.
(At the bench.)
THE COURT: I asked her refer to page 14, line 5. And I have the depo in front of me. It says: I was aware of them, but they're not necessarily overly relevant.
MR. OWENS: That's correct.
THE COURT: So what are we doing? If you're going to ask her to rely on that and ask her about text messages, you need to give her the opportunity to say this is what she said.
MR. OWENS: All right.
(In open court.)
BY MR. OWENS:
MR. OWENS: Dr. Werner, did that refresh your recollection about our discussions about the text messages in your evaluation?
TONIA WERNER: Yes.
MR. OWENS: And would you agree that they're not necessarily overly relevant to your evaluation of Sarah Boone?
TONIA WERNER: Correct.
MR. OWENS: And you agree that after reviewing all those text messages that there was nothing that stuck out to you that caused you to pause and feel like they may have some impact on your evaluations of Sarah Boone?
MR. OWENS: Can she answer the question?
THE COURT: Have her answer the question first.
TONIA WERNER: I'm not sure what you're referring to in the deposition.
BY MR. OWENS:
MR. OWENS: Page 14, my question is at line 21, your answer is at line 25.
TONIA WERNER: Correct. And I said, no. As I said, it made me aware that they had a volatile relationship.
MR. OWENS: But my question to you specifically is, is there anything in the text messages that stuck out to you that caused you to pause and feel like that may have some impact on your evaluations?
TONIA WERNER: Correct.
MR. OWENS: And you agree your answer is no?
TONIA WERNER: As I said, it made me aware -- that's not my complete answer.
MR. OWENS: Okay. First you said no.
TONIA WERNER: As I said, it made me aware they had --
MR. OWENS: Matam --
TONIA WERNER: It's not my complete answer.
MR. OWENS: I know, Dr. Werner. But didn't you say no to me? That was your first sentence was no?
TONIA WERNER: It's not my complete answer.
MR. OWENS: I understand. I'm going to let you answer that. But when I asked you if there was anything in the text messages that caused you to pause and it would in some way affect the impact on your evaluation, your answer to me was no?
TONIA WERNER: It's not my complete answer.
MR. OWENS: I understand. But was your answer to me, no?
TONIA WERNER: Yes. But that is not my complete answer.
MR. OWENS: Now, at the same time, Dr. Werner -- Dr. Werner, at the same time, you expressed that they had a volatile relationship?
TONIA WERNER: That is not the totality of my answer either.
MR. OWENS: Okay. I'm going to get to it.
TONIA WERNER: Okay.
MR. OWENS: But part of your answer was that they had a volatile relationship.
TONIA WERNER: Correct.
MR. OWENS: And this is in relation to my question about the text messages, you agree?
TONIA WERNER: Yes.
MR. OWENS: After you said, no, you said they had a volatile relationship, and that she text messaged calling him an idiot -- a fucking idiot for overdrafting her account?
TONIA WERNER: Correct.
MR. OWENS: And in those text messages, there was some reference to domestic violence between the two?
TONIA WERNER: Correct.
MR. OWENS: And that demonstrated to you that they had a violent relationship?
TONIA WERNER: Correct.
MR. OWENS: And do you not agree that that evidence of a violent, volatile relationship had an effect on you expressing your opinion here today that Sarah Boone suffered from battered spouse syndrome?
(At the bench.)
THE COURT: Yes, sir.
THE COURT: What's your legal objection?
THE COURT: Response?
MR. OWENS: Judge, this is cross-examination of an expert witness. I'm allowed to explore impeachment, bias, prior inconsistent statements, whatever the standard cross-examination, I'm allowed a lot of latitude. Cross-examination is fundamental to a defendant's right to a fair trial. Especially --
THE COURT: But what does this have anything to do with anything if she's not -- did she render an opinion as to this issue?
MR. OWENS: Yes, just earlier outside the presence of the jury. She said my client did suffer from battered spouse syndrome.
THE COURT: Your objection is outside the scope?
THE COURT: Objection is overruled.
THE COURT: How is it a misstatement of facts?
THE COURT: That's fair.
MR. OWENS: I'11 ask her.
MR. JAY: And we're going to object. He can explore and cross-examine her opinion that she rendered and point out all the things that she should have looked at and didn't and that's fine. But now what he wants to do is he has an imaginary direct examination that I didn't give her. He imagined that I was going to go into all this stuff and I didn't. This is all going to be outside the scope because she didn't rely on anything for the opinion she expressed except for Ms. Boone's evaluation on October 2nd.
THE COURT: Anything else?
MR. OWENS: Judge, I've got Erhardt down in the car. I mean, I don't know if we need to take a break for me to get that, but I don't have that rule, but she offered and expressed several opinions relating to Ms. Boone in her deposition that --
THE COURT: But just because they're in the deposition doesn't mean it's necessary for a trial. We all know this.
MR. OWENS: They directly affect my impeachment of her on her opinion that she expressed on direct. I'm going to make -- those arguments in my cross-examination are going to be tied to my closing argument in relation to limiting her opinion when she had other opinions that were not disclosed by the State.
THE COURT: I'm not going to get into disclosure or nondisclosure. We've already addressed that.
MR. OWENS: No, I'm talking about that he didn't ask her on direct. He limited his direct --
THE COURT: That's his choice.
MR. OWENS: Exactly. And I'm allowed to explore all the others and then argue that he didn't explore those issues. He wanted to limit --
THE COURT: I am not going to allow that. That is improper closing argument. That is a complete improper closing argument. That is demeaning the credibility of an adversary. You are attacking a person. That's an ad hominem attack. You're not allowed to do that in closing. He didn't do this. It was his choice. He didn't do that. You can't do that. Now, if you want to talk about the opinions that she's offered, that's a different kitty. But I'm not going to allow you, Mr. Jay, or you, Mr. Owens, to attack each other in closing argument. We are not doing that. I understand stress is high, I understand tensions are high. We need to bring down the boiling point. But I am not going to allow you to attack each other, one way or the other, in closing.
MR. OWENS: Can we have a break? I'd like to go get the Erhardt --
THE COURT: I'm going to allow you to do it.
MR. OWENS: I understand. But I'm a little hot right now. I think a break will do us all some good. I feel like if I had a chance to get Ehrhardt and review it, I can point to the issues. Obviously, this is a critical issue in the case --
THE COURT: I'm not disagreeing with you.
MR. OWENS: It's 12:00 o'clock.
THE COURT: I'm not disagreeing with you.
MR. OWENS: I'm about to blow my top.
THE COURT: Okay. And I don't want that to happen. I don't want anybody to blow their tops.
Mr. Jay, anything else?
MR. JAY: No, sir. Just that cross-examination -- we understand what cross-examination of an expert entails. If an expert comes in and gives an opinion about A, certainly attack that. But just because I chose not to have her give opinions B, C, and D, doesn't mean he gets to bring them in and then attack them.
THE COURT: Here's what we're going to do. We're going to go ahead and take that break, and I'm going to ask the jury to be back here at 1:30 p.m., and then we'll pick up from there.
Is there any other argument you're going to make other than outside the scope or relevance with regard to Mr. Owens' opportunity to explore these other opinions?
THE COURT: That's fair.
MR. JAY: But, again, if he's going to say, well, you know, text messages or Aspire records or whatever, when the opinions she offered today was not based on it, I'm going to object to the relevance of it.
THE COURT: Okay. I got it.
MR. OWENS: And, Judge, I want to review Ehrhardt. T'll have further response if something changes.
THE COURT: Understood. Okay. Thank you very much, you-all.
(In open court.)
THE COURT: All right. Members of the jury, it is 11:55. At this point in time, we are going to go ahead and take our lunch break. I'm going to give you a Similar instruction that I've given you throughout the last couple of days. Give me a moment to pull it back up.
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, 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, we're going to be in recess until 1:30, and we'll pick up at that point in time. Thank you so much for your service.
(Jury exited.)
THE COURT: You-all may be seated.
State, anything else?
THE COURT: Defense?
MR. OWENS: No, sir.
THE COURT: All right. We'll see you at 1:30. Thank you very much. Court's in recess.
(Court recessed for lunch at 11:58 p.m.)
(The following proceedings were resumed at 1:38 p.m.; stenographically reported by Breean Crisp.)
THE COURT: All right. We are 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 Sarah Boone.
THE COURT: Ms. Boone is seated at counsels' table wearing the same clothing from this morning.
Are we prepared to bring back in our jury at this time, State?
THE COURT: Defense?
MR. OWENS: No, sir.
THE COURT: Yes, sir?
MR. OWENS: I want to make another motion. Judge, I've had a chance to read this transcript and I'd like to draw your attention to a few pages.
THE COURT: Which transcript are we referring to, sir?
MR. OWENS: The October 4th, 2024 deposition of Dr. Tonia Werner.
THE COURT: Okay.
Yes, sir, I have it in front of me.
MR. OWENS: May I sit?
THE COURT: Yes, sir.
MR. OWENS: I'm referring to page 38, at the very bottom, line 21. Answer: I need to go through my notes and think about it and process it, but I had other depositions, as you're aware, yesterday, so I had to prepare for those and go through that, so I had not had time to process through all of my notes prior to this deposition today.
Page 39, line 2: Well, Doctor, I'm not trying to inconvenience you. You know, the judge set for October 7th for jury selection.
Line 5, she answered: Okay.
Question at 6: But I don't anticipate your testimony would be until later, you know. Maybe we could discontinue your deposition and then reset it when you've got time to review, because obviously I'm not going to want to take your deposition and then you have other opinions that are not going to be covered.
Then at 13, Mr. Jay says: What is your position?
Then at 14, Mr. Jay: Conducting discovery after the jury trial starts is completely unacceptable to me, so that's my position. If she needs to issue a supplemental report or if there becomes a need for a second deposition, then we can address that, but it would be my position that we need to get this done because the State doesn't have any appellate rights once a jury -- the jury is sworn and jeopardy attaches.
Line 23, Mr. Owens: Well, you obviously understand my position. I'd like to finish the deposition today as well, but if she is holding out -- if she is holding out that she may have other opinions and other diagnoses after she has had more time to think, review the paperwork, then obviously that -- that creates an issue.
The witness on line 4, page 40: But if that happens, I can bring that forward and then you can add to your deposition at that point if my opinions change after having reviewed further.
Line 8, Mr. Owens: Mr. Jay?
Line 9, Mr. Jay: I think you need to plow ahead. This is our time with her. The court reporter is prepared to give us a transcript by the end of the weekend. And if something needs to be amended, then she can, A, issue a report; and then, B, if you need to take a deposition -- an abbreviated deposition on the limited subject matter she is not prepared to testify about to on today, then we can do that, but the notion of halting a deposition today that is set for three hours and then doing a three-hour deposition during trial, especially after jeopardy has attached, is not what the State would do.
Line 23 at page 40, Mr. Owens: I'm not suggesting that, Mr. Jay. I'm suggesting that we just said at the very beginning -- I'm suggesting what you just said at the very beginning, which is let's finish, but if she has some supplement, then I would want to take a brief second deposition as it relates to any new diagnoses or opinions.
Then Mr. Jay goes -- I think he gets confused about an issue relating to a diagnosis of an adjustment disorder or anxiety disorder.
So we get down to the bottom of page 41, line 22, Mr. Jay: Okay. So on this topic, if something new comes up, then we can address it, but if we have other topics to depose her on, then I would suggest we go on.
And then page 42, line 1, Mr. Owens: I agree. I agree. And, Dr. Werner, just let the state attorney know, I know that you may be, you know -- we are short -- we are on short time. If -- if you do review your notes over the weekend or whatnot and formulate any other opinions, just let the state attorney know and we'll address it.
Line 7, the witness: Absolutely.
That was our understanding. I've been ambushed by a new opinion that I was not made aware of by any kind of report. I was not notified by Dr. Werner. I was not notified by the state attorney, William Jay.
I first heard about the opinion when she testified to it, and I objected to it, relating to imminent threat, the ultimate issue of fact. I move for a total dismissal for prosecutorial misconduct.
THE COURT: Denied.
And here's the other reason it's denied. Page 38 of the deposition, specifically that you made reference to starts at page 21 -- line 21. The question preceding that is important.
Question, 14: So, the -- from my understanding, what you just said was, Yeah, I agree with general anxiety disorder that she had been diagnosed with?
Answer: No. I said it would be generalized anxiety disorder versus adjustment disorder and that I hadn't had time to fully formulate that opinion out.
This entire conversation pertains to those two issues, anxiety disorder and adjustment disorder. It has nothing to do with PTSD, nothing to do with battered spouse.
MR. OWENS: But, Judge, we go on and I see what she's doing; that she's saying, Hey, I got jammed up, I had a deposition yesterday, I didn't really have time between the evaluation and the deposition two days later -- she had a deposition in between -- to really think about it, really review my notes. So asa catchall, I said on page 40, If you have other opinions or other diagnoses after she has more time to think and review the paperwork, then obviously that creates an issue.
So, yes, that was initially what she was talking about specifically, but I realized what she was saying was she was gonna have to reflect on a lot of these opinions, so I expressed --
THE COURT: But, respectfully, sir, that's not what it says. That's specifically in line with the anxiety disorder versus adjustment disorder. That was the entire topic that was being conversed with.
Now, later in the deposition there are references, as I believe that I identified previously. Give me a moment.
On page 59, line 22, the question is asked: Okay. And do you intend on expressing any other opinions, other than what we've spoken about here today?
Line 25: No. I will answer whatever questions I'm -- moving to page 60, line 1 -- asked.
Page 60, line 11 -- well, let me just start with 2 because it gives it more context. Question: Well, I'm asking now. I mean, you're the expert. I'm not. You're the one that's evaluated her. You're the one that's given her the tests. I don't know the field like you do. You know the field. I understand you've said, Hey, I want to think some more about -- excuse me, Hey, I want to think about this some more. I want to review my notes some more to see if -- but in terms of right now, without any further reflection, without any further --
Answer: Yes, sir.
Question: -- reading of the notes, any other opinions that you think you could express in any form or fashion with all this experience, almost 1,000 jury trials or 1,000 trials you've testified as an expert, anything else that comes to mind that may be an opinion that you might express in Sarah Boone's case.
Answer: Anything else that I'm asked with regard to her diagnosis come into play with regard to her case, I guess.
Question: What other opinions do you believe you're qualified to express as it relates to Sarah Boone and the facts and circumstances relating to this case?
Anything with regard to her diagnosis, I guess.
61: Of those four things we mentioned?
Line 2: Correct.
MR. OWENS: And, Judge, the four things were mentioned were related to the anxiety disorder, the narcissism, the battered spouse, the alcohol abuse disorder, which are into pages 58 and 59, but the overall thrust of that was any other opinions that were expressed. That was in good faith what we were doing.
I would have -- like I said before, I would have never taken her deposition. Once she said I hadn't finished my analysis and I may need additional information -- just like he said the other day, Dr. Harper, if you get those additional medical records, Mr. Owens, about Jorge Torres and give them to Dr. Harper, then I'm going to want to take her deposition again. The same rules apply. Why would I take her deposition when she hasn't finished her analysis?
THE COURT: Because the Court ordered you to take her deposition because there were concerns about being able to have all of this done prior to trial and you had concerns about what she was going to testify to. And the Court set a scheduling order as to when, how, where, and the deadlines for those depositions to be conducted.
MR. OWENS: That prosecutor should have let me know. If he was going to ambush me at trial, I should have known beforehand about a new opinion that Dr. Werner was going to express, especially related to battered spouse, post-traumatic stress, and whether or not there was an imminent threat at the time of this event.
THE COURT: And the Court has addressed that. The Court did exactly what was required by binding precedent, by the Sixth District Court of Appeal, and held a Richardson hearing, analyzed the three factors as required by Florida law with regard to those, and gave you the opportunities to cure.
Now, with regard to your request to strike or dismiss the case due to prosecutorial conduct, the case law by the Third District Court of Appeal, filed April 10, 2024, State of Florida vs. Denninghoff, D-e-n-n-i-n-g-h-o-f-f, and I can provide you a citation momentarily, states that: Dismissal is an extreme sanction to be used with caution and only when a lesser sanction wouldn't achieve the desired result. Specifically, dismissal of an Information or Indictment is an action of such magnitude, that resort to such sanction should only be had when no viable alternative exists.
There were multiple viable alternatives, including, but not limited to, my request and inquiry of whether or not you wanted that struck and the instruction to strike that opinion, in which you demurred and said, No, I want it for cross-examination. And I gave you the opportunity twice to depose her here in open court, which I oversaw, with regard to any opinion that she -- based on the proffer or any other opinion that she would be offering today.
For those reasons, the Court is not going to exercise its discretion and strike due to the extreme nature of striking a criminal charge and for the adequate remedy that has been provided to you.
Is there anything else, sir, we need to address?
THE COURT: Yes, sir.
MR. JAY: Judge, this deposition did not end on page 40 or 41 or 42. Mr. Owens took a direct examination of this deponent for 68 pages and then it was turned over to myself for cross-examination during the deposition.
Beginning on page 75, I asked the deponent: What did the defendant say about the murder?
She said on page 78, was that -- starting at line 13: And she said there was a suitcase and some clothes that had gotten out to donate and they were trying to get that together and it was on the floor in the living room. And that, as she was coming down the stairs, she saw him kind of slipping into the suitcase as a hiding place. As she said, I was -- I saw him in the suitcase and I zipped him up and we were laughing. She said then he said he couldn't breathe and I remembered feeling I couldn't breathe when he was choking me or sodomizing, and I was angry and I shook the suitcase. I lost control of the suitcase and it flipped.
And she goes on and on about what happened.
Defense counsel was there. He heard this testimony, that there was no imminent danger presented at the time that she began getting angry, shaking the suitcase, hitting him with a bat, so on and so forth. And he didn't ask her that question after she had specifically instructed him, If you need an opinion of mine, you've got to ask me the question.
It's unfair to experts to be thrown with this catchall provision of, please tell me any opinion about this case that you may think is relevant. Well, what the doctor may think is relevant is different than, perhaps, what counsel thinks is relevant, so it's really an unfair criticism of the State and probably more likely self-reflective that this deposition -- this opportunity to ask about this obvious issue did not occur.
So that is what I would like to supplement the record with. The deposition was substantially longer than page 41 or 42, where it's acting like it's concluding and, you know, is there anything else?
The State would just submit, I understand very well what my ethical duties are. I do not have any ethical duty to provide him an unrecorded statement that is not inconsistent with prior testimony. This doctor did not give me any unrecorded statements inconsistent with her testimony.
Thank you.
THE COURT: Thank you.
MR. OWENS: Judge, I'd like to add, on page 79, that she -- Dr. Werner claims that Sarah said, He put his two fingers out and I hit them with a bat. So there was a rule of completeness.
But for him to say that that's not standard operating procedure when you're taking a deposition of an expert --
THE COURT: Mr. Owens, I've ruled, sir. I understand. I understand your position. However, the questions that were specifically asked, which gave rise to this, specifically pertain to opinions of PTSD. I'm not going to rehash any and all of those things. The record speaks for itself. The Court has ruled. Your motion for dismissal of the charges is denied.
For the record, the citation that the Court relied upon with regard to Denninghoff is located at 388 So.3d 10055, located at pinpoint 1057, Florida Fourth -- Third District Court of Appeal, April 10th, 2024.
With that, are we ready to bring back in our panel?
MR. OWENS: No, sir.
THE COURT: Okay.
MR. OWENS: Judge, I've got Ehrhardt's Florida Evidence, 2023 Edition, Volume 1, Charles W. Ehrhardt --
THE COURT: Let me tell you how I'm going to rule on this, sir. I'm going to allow you, as I said up here at sidebar, to go into the facts that she relied upon and what it is that she utilized. I'm going to allow you, sir, as I said up here at the bench before the lunch hour, to go into those opinions that she didn't offer here today. And on rebuttal, Mr. Jay, I'm not going to allow you to stand up and say, May I voir dire, that wasn't one of your opinions today. You can address all of that in redirect. Is that clear?
MR. OWENS: Judge, let me just review to see if -- because I had several.
THE COURT: What you had inquired of me, Mr. Owens, up here was that you wanted to go into these other facts; medical records, text messages, statements. And you said, If I can't do it now because he's going to object, I'm going to call her in surrebuttal. And the problem, as the State pointed out, is that you can't use her as a conduit to inadmissible evidence on direct examination, and that if you want to do it, you've got to do it now. And your argument was, it goes to her bias, it goes to her credibility, and that you're permitted wide discretion on cross-examination. I agree with you. I agreed with you before the lunch hour. My ruling hasn't changed. I'm going to absolutely allow you to go into those things.
MR. OWENS: I appreciate that, Judge.
The other thing I wanted to readdress was --
(Brief interruption.)
THE COURT: I'm taking care of it, Counselor. Give me a moment.
Yes, sir?
MR. OWENS: Judge, and I'm referring to Ehrhardt's Treatise, Section 90.703, opinion on the ultimate issue. I'm on page 933: Testimony in the form of an opinion or inference otherwise inadmissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.
And in that section, 703.1, it talks about: That opinion testimony is not inadmissible solely because it includes an ultimate issue to be decided by the trier of fact. The provision is equally applicable to expert and lay witnesses. The jury has the power to accept or reject the testimony of expert or lay witnesses and is not bound by their conclusions. Merely because a witness expresses an opinion to an ultimate issue does not compel the jury to find the facts to be true. The jury will be given the -- the jury will give the opinion as much weight as it feels the opinion deserves.
Then it goes on: The abolition of the rule against opinions on the ultimate issues does not mean that all other opinions are admissible. Witnesses will be prevented from expressing their conclusions when the opinion only tells the jury how to decide the case. Witnesses will be prevented from expressing their conclusions when the opinion only tells the jury how to decide the case and does not help the jury to determine what occurred. For example, a witness cannot express his or her opinion as to the guilt or innocence of a criminal defendant.
Then I'm on page 940, 703.1 still: When a witness is asked to express an opinion that applies a legal standard to a set of facts -- which Dr. Werner did -- the opinion testimony is generally inadmissible. The danger is that the witness will apply a standard or definition which is different from that defined by the applicable law. The application of erroneous legal standard results in the opinion testimony being misleading and not helpful to the jury. For example, an expert cannot opine whether a nursing home was negligent in its care of the decedent.
THE COURT: That's exactly what we spoke about at counsels' table.
MR. OWENS: I know, Judge, but if you go on, it says: An expert may not be permitted that a truck driver drove his gross -- drove in a grossly negligent manner, whether the sheriff's conduct was unconstitutional, whether certain waters are navigable, whether the defendant's action constituted misapplication or concealment of funds, or the legal obligations of the parties to a contract. Whether the testimony of the expert is a permissible factual conclusion or the impermissible application of a legal standard or definition to a set of facts is sometimes a fine distinction involving a large measure of discretion with the trial judge.
For example, the admission of expert testimony that certain -- it goes on. However, if the witness expresses an opinion about the intent of the accused, the opinion -- and this is the important -- one of the important sections: However, if the witness expresses an opinion about the intent of the accused -- which Dr. Werner did -- the opinion has not been permitted. The distinction drawn by the Courts as to when this type of opinion testimony is admissible are often not clear.
Section 90.703 does not permit a witness to testify to legal conclusions or express an opinion upon questions of substantive law. This expert testimony regarding substantive legal principles may not be helpful to the jury and may create confusion if an expert testifies in a manner that is different or even in conflict with the testimony of an opposing expert.
THE COURT: But the citations, respectfully, Counselor --
MR. OWENS: Judge, if I could finish?
THE COURT: Respectfully, Counselor, the citations that you're referring to are not at issue. Fluellen, error to permit arresting officer to testify that the quantity of cocaine possessed by appellant indicated that he possessed with intent to sell, which is a specific element of the charge in that case.
Gamble, officer's expert testimony with the amount of drugs found in defendant's possession was inconsistent with personal use and, therefore, intended for sale was inadmissible.
644 So.2d 1376 for Gamble. And Fluellen, 703 So.2d 511.
The Dinken case that I read says this is acceptable. If a psychologist or psychiatrist can testify that someone is not mentally defective or was mentally defective, that's on all fours with based on what the defendant had said to this expert she was not in imminent fear. Now, I don't remember exactly what was said, but it was along those lines. Based on looking at all those things, the totality of the circumstances of what in my evaluation on or about October 2 that the defendant had said to me, as the expert, it's not imminent fear. That opinion is not inadmissible per the case law under Dinkens.,
MR. OWENS: All right. Judge, can I read a little bit more? It applies --
THE COURT: If you're just going to be reading from the treatise, I've already read it.
MR. OWENS: Okay. Well, I just want to make mention, because it's talking about, does not permit a witness to testify about legal conclusions or express opinions on questions of substantive law. And I was about to finish this section: When the testimony -- the testimony -- this testimony -- and I'm on page 947: This testimony may also interfere with the function of the trial judge to determine the applicable law and to instruct the jury thereon.
As we know, we're going to do battle over the jury instruction on justifiable use of deadly and non-deadly force. The testimony from Dr. Werner, and I wrote it down, she said, Based on what Sarah Boone told her, she was not facing imminent risk of harm. That invades the province and function of the trial judge to determine the applicable law and to instruct the jury otherwise, which we haven't even done yet. You haven't made findings of law about which instructions apply. That's what she did, Judge.
THE COURT: Your objection has been made for the record and the Court previously ruled on this matter. I appreciate the additional argument, but the Court's reliance on Dinkens remains.
MR. OWENS: Thank you.
THE COURT: Just because -- and 97.03 speaks for itself, so your objection is overruled as to that issue.
Anything else we need to address, Mr. Owens, before we bring back in our panel?
MR. OWENS: No, sir.
THE COURT: State?
THE COURT: Okay. Let's bring back in our panel.
MR. OWENS: Judge, should I approach the lectern now or wait?
THE COURT: You can just stay where you are, Counselor. Let's wait for them to come in.
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, sir.
THE COURT: Thank you. You-all can be seated.
Members of the jury, welcome back.
Juror No. 2, back row, he's already ready. I see those hands are raised. You know what's coming. You-all complied with the Court's instructions, right?
Thank you. Record will reflect all hands have been raised.
Mr. Owens, you may continue your cross-examination, sir.
MR. OWENS: Thank you, Judge.
CROSS-EXAMINATION (CONT'D)
BY MR. OWENS:
MR. OWENS: Dr. Werner, I don't want to rehash it, but just for the jury's sake, would it be fair to say that the text messages that you were forwarded by the state attorney -- by the state attorney for you to review, you did not deem to be relevant to your evaluation?
TONIA WERNER: Right. They demonstrate --
MR. OWENS: Ma'am, it's a yes-or-no question.
TONIA WERNER: Yes.
MR. OWENS: Now, from what I understand, when the state attorney sent you the information, they did not send you any videotapes?
TONIA WERNER: Correct.
MR. OWENS: So you have not reviewed any videotapes in this matter?
TONIA WERNER: Correct.
MR. OWENS: The suitcase videotapes, either one of those you have not reviewed?
TONIA WERNER: I have not seen them, correct.
MR. OWENS: Okay. Or any bodycam videotapes, you have not reviewed?
TONIA WERNER: They're described in the police report.
MR. OWENS: My question is, have you viewed any of the bodycam videotapes relating to this incident?
TONIA WERNER: I have not seen them, correct.
MR. OWENS: Prior incidences between the two of them, have you reviewed any videotapes -- bodycam videotapes of any prior incidences?
TONIA WERNER: I have not.
MR. OWENS: Have you reviewed the audiotapes related to some of the questioning of Sarah Boone?
TONIA WERNER: I have not.
MR. OWENS: Have you reviewed the autopsy report?
TONIA WERNER: It's described in the incident report, but I did not see the actual autopsy report.
MR. OWENS: Now, you're aware that we have called two -- two experts, Dr. Michael Brannon and Dr. Julie Harper; is that correct?
TONIA WERNER: Yes.
MR. OWENS: And you're aware that they are forensic psychologists?
TONIA WERNER: That's correct.
MR. OWENS: And you are a forensic psychiatrist?
TONIA WERNER: That's correct.
MR. OWENS: So they didn't go to medical school and you did?
TONIA WERNER: That's correct.
MR. OWENS: And they don't understand medical issues, so to speak?
TONIA WERNER: I don't have an understanding of what they understand medically.
MR. OWENS: Do you recall telling me that they don't understand medical issues, so to speak?
TONIA WERNER: They haven't been to medical school, but I wouldn't understand their medical knowledge.
MR. OWENS: If you would look on page 22 of your deposition.
THE COURT: Approach.
(At the bench.)
THE COURT: Further explanation, please.
THE COURT: What line on 22?
MR. OWENS: Judge, it goes to bias --
THE COURT: What line, sir?
MR. OWENS: On 22, it starts at 7, line 7. It's distinguishing between psychiatrists and psychologists.
THE COURT: Overruled.
(In open court.)
THE COURT: The objection is overruled.
BY MR. OWENS:
MR. OWENS: Dr. Werner, have you had a chance to review your deposition on page 22, starting at line 7?
TONIA WERNER: Yes.
MR. OWENS: Could you read down through line 11, your answer?
TONIA WERNER: Yes. I'm talking about psychologists in general, not with regard specifically to your experts, which is what you were just asking me about.
MR. OWENS: Okay. But you would agree, your opinion is psychologists typically do therapy, but they don't prescribe medication or understand medical issues, so to speak?
TONIA WERNER: Correct.
THE COURT: Overruled.
TONIA WERNER: Correct, but I wasn't specifically talking about your experts, which you were just asking me about your experts specifically, and I said I didn't know what their specific medical knowledge was.
BY MR. OWENS:
MR. OWENS: All right. That's what you said under oath October 4th of this year?
TONIA WERNER: Correct.
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: Now, is it fair to say that the majority of your work is in the field of competency to proceed and guardianship evaluations?
TONIA WERNER: Actually, the majority of my work is in patient care. I work seven days a week on the crisis stabilization unit actually treating patients.
MR. OWENS: You work seven days a week?
TONIA WERNER: Yes, sir.
MR. OWENS: So as a forensic psychiatrist doing forensic work, the majority of your work in that area is in the field of competency to proceed and guardianship evaluations?
TONIA WERNER: As a forensic psychiatrist, correct. Asa psychiatrist, I work seven days a week on the crisis stabilization unit.
MR. OWENS: And where is that unit?
TONIA WERNER: It's in -- located in Lake City, Florida.
MR. OWENS: So you work there seven days a week?
TONIA WERNER: Yes, sir.
MR. OWENS: And then on -- you also do this forensic psychiatrist work doing competencies to proceed and guardianship evaluations?
TONIA WERNER: That's part of the -- what comes under the umbrella of my forensic work, yes.
MR. OWENS: That's the majority of your forensic work?
TONIA WERNER: Yes. That's the majority of, like, the -- that's the most common cases that we're asked to opine on.
MR. OWENS: And then next in line would be sanity at the time of the crime?
TONIA WERNER: Yes.
MR. OWENS: So you would make a determination and submit a report to the Court as to whether or not a defendant, an accused, is legally sane or not at the time of the offense?
TONIA WERNER: Yes, that's correct.
MR. OWENS: Is it fair to say that you also testify weekly as a treating physician through Baker Act court?
TONIA WERNER: Yes, that's correct. Every Thursday, we have Baker Act hearings with regards to our individuals who are being held in our crisis stabilization unit.
MR. OWENS: Is that in Gainesville or Lake City?
TONIA WERNER: No, sir. That's in Lake City.
MR. OWENS: Now, Lake City from here is north, north of Gainesville?
TONIA WERNER: Yes, sir. It's approximately 40 minutes north of Gainesville.
MR. OWENS: Now, I believe you said you've testified in battering spouse situations in court approximately five to ten times?
TONIA WERNER: Yes.
MR. OWENS: Is that correct?
TONIA WERNER: Yes.
MR. OWENS: And you often refer to that as intimate violence cases?
TONIA WERNER: Yes.
MR. OWENS: Now, my understanding, that after you had a chance to evaluate my client, Sarah Boone -- and I believe you evaluated her two days before the deposition, so it would have been October the 2nd of 2024?
TONIA WERNER: Correct.
MR. OWENS: As to your diagnosis as it relates to her, do you believe that she suffers from a generalized anxiety disorder?
TONIA WERNER: No, sir.
MR. OWENS: Now, you're aware that she was previously diagnosed prior to -- prior to you evaluating her, she was previously diagnosed with a generalized anxiety disorder?
TONIA WERNER: She told me that she had previously been diagnosed. I did not see any medical records with that diagnosis in it, but she told me that she had previously been diagnosed with that.
MR. OWENS: Did you attempt to secure any other records to --
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: Did you diagnose her with an adjustment disorder?
TONIA WERNER: I did diagnose her with an adjustment disorder.
MR. OWENS: Do you believe that if she was diagnosed with a generalized anxiety disorder, it's really not that, it should be an adjustment disorder?
TONIA WERNER: A lot of the symptoms overlap for the two diagnoses. And we see that quite often, that different diagnosticians or physicians come up with different diagnoses based on a conglomerate of symptoms. So it's not uncommon for the two diagnoses to overlap based on the symptoms.
MR. OWENS: Do you agree back on October the 4th, 2024, when I took your deposition, that you could not make up your mind at that time whether she suffered from generalized anxiety disorder or an adjustment disorder?
TONIA WERNER: IT had not made a clinical decision at that time. T hadn't reviewed all of my documents at that time.
MR. OWENS: When did you make a clinical decision that she suffered from adjustment disorder as opposed to generalized anxiety disorder?
TONIA WERNER: It was probably within the next week when I was reviewing all of the -- going through all of the documents and her interview more thoroughly.
MR. OWENS: Dr. Werner, did you -- you agree you did not notify me --
THE COURT: Yes.
(At the bench.)
THE COURT: Yes, sir?
THE COURT: What are we doing, Mr. Owens?
MR. OWENS: She's making opinions here today in court --
THE COURT: Then there's another way to ask it.
MR. OWENS: -- when she told me --
THE COURT: There's another way to ask it. Hey, this is the first time you've rendered this opinion. You did not render this opinion in your deposition. There's other ways of asking, other than saying, Hey, we agreed and you lied, or anything along those lines.
MR. OWENS: She said some things in deposition that she would notify me or notify the state attorney if she had a change in any of those opinions. She failed to do that, Judge.
THE COURT: There was no change. There was no change. We've been over this.
MR. OWENS: Judge, at the time -- let me get the transcript.
THE COURT: Mr. Owens, I don't need the -- I don't need a reread of the deposition transcript. You've provided it to me. I'm familiar with the portions that you're relying on.
MR. JAY: Judge, it's improper for him to ask about opinions that I did not and then cross-examine her on them. Had I wanted to get her opinions on these things, I would have sent her all of these records that we have, and I didn't want to delay the trial when she gave me her opinion that battered spouse syndrome didn't matter in this case. So I foregoed giving her any additional records so that I could get valid opinions and now he's being allowed to ask about these opinions and then cross-examine them on her. It's improper.
THE COURT: The question before the Court is improper -- that's pending right now, I find improper. That was a discovery issue and that was remedied and it's not something that the jury needs to worry about. If you want to ask her questions about the formulation of that opinion and when it was provided, that it wasn't provided at depo and today may be the first time that it's been provided to you, fine, but we're not going to get into, there was a promise and it gets complicated. I'm not going to do that. The objection is sustained.
(In open court.)
THE COURT: The objection is sustained.
BY MR. OWENS:
MR. OWENS: Dr. Werner, you agree that when I took your deposition on October the 4th, you had questions, in all honesty, about whether or not you felt like Sarah Boone suffered from a generalized anxiety disorder versus an adjustment disorder?
TONIA WERNER: I was leaning towards adjustment disorder secondary to her being in the correctional setting, and I think I said that in my deposition. I didn't know that I had enough information from her, because I only had information from her. I didn't have anything in the medical records to support a generalized anxiety disorder, so I wanted to review that.
MR. OWENS: And I'm just learning it now, as you testify here today?
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: Is this the first time you've let the parties know that this is your opinion?
TONIA WERNER: That I believe that she has generalized anxiety disorder?
MR. OWENS: No.
TONIA WERNER: Or that I believe that she has --
MR. OWENS: Adjustment disorder.
TONIA WERNER: -- an adjustment disorder? Yes.
MR. OWENS: Now, from your evaluation, you determined that she had a personality trait?
TONIA WERNER: That's correct.
MR. OWENS: And you felt like -- that she had a grandiosity issue?
TONIA WERNER: Yes. She has a narcissistic personality disorder trait.
MR. OWENS: A trait, one trait?
TONIA WERNER: Correct.
MR. OWENS: Do you agree a lot of people have one trait?
TONIA WERNER: Yes.
MR. OWENS: Okay. A lot of people have a grandiosity trait?
TONIA WERNER: That's correct.
MR. OWENS: That are not narcissists?
TONIA WERNER: But I never said that she was a narcissist.
MR. OWENS: Is it your opinion that Sarah Boone has alcohol use disorder?
TONIA WERNER: Yes, that's correct.
MR. OWENS: And are you forming that opinion based on Sarah Boone's admission to you that she was an alcoholic?
TONIA WERNER: I'm going to refer to my notes for her.
She has a history of being diagnosed with that. She also acknowledged to me that her use had been problematic, yes.
MR. OWENS: So you formed the opinion that she suffered from alcohol use disorder based on the history that she presented to you at this evaluation?
TONIA WERNER: It was based on the totality of the information that I was provided. So the medical records demonstrating that she had been diagnosed with it in the past, her ex-husband in the -- in his interview and the police report, described her as an alcoholic. And in her description of herself, having a problem with alcohol.
MR. OWENS: Now, do you acquire a tolerance over time if you drink on the regular?
TONIA WERNER: That's one of the criteria.
MR. OWENS: Do people also have a genetic tolerance for alcohol?
TONIA WERNER: They may.
MR. OWENS: Now, as it relates to battered spouse syndrome, would you agree that that is a recognized syndrome in the psychiatric community?
TONIA WERNER: Yes.
MR. OWENS: And you have heard no criticisms of that syndrome?
TONIA WERNER: No.
MR. OWENS: And you would agree that's a subset of post-traumatic stress disorder?
TONIA WERNER: Yes.
MR. OWENS: And you would agree that Lenore Walker first developed the theory of post-traumatic stress syndrome?
TONIA WERNER: Yes.
MR. OWENS: And I think at the time of this deposition, you were not sure you knew Lenore Walker?
TONIA WERNER: I don't recall that.
MR. OWENS: All right. Look at page 54.
MR. OWENS: Excuse me?
THE COURT: Approach.
(At the bench.)
THE COURT: What does this -- her knowledge -- and what line specifically on 54?
MR. OWENS: It starts on page 54. I start the question at 23.
THE COURT: Where is the impeachment at?
MR. OWENS: You see on 54, I think Lenore Walker is the one who first developed --
THE COURT: She responds, I'm not sure.
MR. OWENS: She responds, I'm not sure. I've got the therapeutic treatise, which is the authority treatise, on battered spouse syndrome.
THE COURT: Right now we're looking at an impeachment. What's the impeachment?
MR. OWENS: Well --
THE COURT: What's the contradiction?
MR. OWENS: It's that she didn't even recognize who the authoritative person was in the field of battered spouse syndrome, which Dr. Michael Brannon recognized and Dr. -- I think she spoke of it. I know he spoke of her in his testimony. I think Dr. Harper mentioned Lenore Walker's three-step cycle for battered spouse syndrome, and she was not even sure she knew who Lenore Walker was.
THE COURT: Okay. What's the impeachment?
MR. OWENS: The impeachment is, I'm going to ask her if she recognizes that as an authoritative treatise. They spoke on it. She wasn't even for sure who Lenore Walker was.
THE COURT: No. I'm going to sustain that as collateral.
MR. JAY: And while we're here, what's becoming obvious to me when we start asking about alcohol abuse disorder and narcissistic traits and all the things that the State did not get her to opine on, this is essentially like him calling his own witness to impeach, and that's improper impeachment under the evidence code. I can't call a witness just to impeach the witness in front of the jury. This is what he's doing on these new topics. He's bringing these topics up that the State didn't and then impeaching her on them, and it's improper.
MR. OWENS: Judge --
THE COURT: I disagree with impeachment on them, but I'm going to agree with you on this is a collateral matter and I'm going to sustain the objection.
(In open court.)
THE COURT: The objection is sustained.
BY MR. OWENS:
MR. OWENS: Dr. Werner, do you recognize Lenore E.A. Walker's book, The Battered Woman Syndrome, as an authoritative treatise on battered spouse syndrome?
TONIA WERNER: I do not because I have not read everything -- I haven't read it and so I can't say that I agree with everything in it.
MR. OWENS: Is it clear to you that Sarah Boone was involved in a violent relationship with Jorge Torres?
TONIA WERNER: Yes.
MR. OWENS: Do you agree that there was a violent cycle that occurred during that three and a half year relationship that Sarah Boone had with Jorge Torres?
TONIA WERNER: It's been described that way, yes.
MR. OWENS: Would you describe it that way?
TONIA WERNER: It's been described that way to me, yes.
MR. OWENS: Do you have an opinion?
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: Do you have an opinion that that was a violent cycle between Sarah Boone and Jorge Torres?
TONIA WERNER: It's been described that way, yes.
MR. OWENS: Do you agree that Jorge Torres was the abuser and Sarah Boone was the victim in that?
TONIA WERNER: It's been -- it was a volatile relationship. In the police report, her ex-husband actually describes her as being the aggressor.
MR. OWENS: Ma'am, I'm going to show you what's been identified as Defense Exhibit I. Have you ever seen this photograph?
TONIA WERNER: I have not.
MR. OWENS: Do you see the injuries on Sarah Boone?
TONIA WERNER: I do.
MR. OWENS: I'm going to show you Defense Identification H. Do you see this photograph?
TONIA WERNER: I do.
MR. OWENS: Have you ever seen it before?
TONIA WERNER: I have not.
MR. OWENS: Do you agree that's Sarah Boone?
TONIA WERNER: I do.
MR. OWENS: Are you aware that Jorge Torres --
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: I'm going to show you Defense Identification G. Have you ever seen this photograph?
TONIA WERNER: I have not.
MR. OWENS: Did you ever read anything about Jorge Torres using a curtain rod aS a weapon against Sarah Boone?
TONIA WERNER: I don't recall that specifically.
MR. OWENS: Identification F, have you ever seen this photograph?
TONIA WERNER: No.
MR. OWENS: Defense Identification E, have you ever seen this photograph?
TONIA WERNER: No.
MR. OWENS: Identification D, have you ever seen this photograph?
TONIA WERNER: No.
MR. OWENS: Have you ever seen the videotape relating to this photograph?
TONIA WERNER: No.
MR. OWENS: Identification A, have you ever seen this photograph?
TONIA WERNER: No.
MR. OWENS: Now, I believe at the time of the deposition, you had spent two -- I think on October the 2nd of 2024, you had spent two and a half hours evaluating Sarah Boone and about half of that time was giving her a test?
TONIA WERNER: No. The mental status examination takes approximately five minutes.
MR. OWENS: Okay. Did you go through her entire history of abuse over the three-and-a-half-year period within the 2 hours and 20 minutes that you had?
TONIA WERNER: No.
MR. OWENS: Now, I understand that you indicated you may take a couple more hours to go through your file and your notes and -- to come up with your conclusions. Did you do that?
TONIA WERNER: Yes.
MR. OWENS: Have you spent any more time on the case, other than that two hours?
TONIA WERNER: I re-reviewed the documents.
MR. OWENS: Have you made any other attempts to go see Sarah Boone anymore?
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: You agree that your opinions are subjective, not based on authority?
TONIA WERNER: They're based on my education, training, and years of experience.
MR. OWENS: And you would agree they're your subjective opinion?
TONIA WERNER: Correct.
MR. OWENS: Would you agree that Sarah Boone suffers from battered spouse syndrome?
TONIA WERNER: I do.
MR. OWENS: Would you agree that battered women's experiences affect their perception of imminent danger?
TONIA WERNER: They can.
MR. OWENS: Would you agree that victims of repeat violence may fear death in a situation others would not?
TONIA WERNER: They may.
MR. OWENS: Because someone suffers from battered spouse syndrome, they have a heightened sensitivity to danger?
TONIA WERNER: They may.
MR. OWENS: Do you agree that people suffering from depression and anxiety are predisposed to getting into a relationship with a partner who may be violent?
TONIA WERNER: They may. Each individual is different.
MR. OWENS: Are they more susceptible to getting ina relationship if they suffer from depression and anxiety with a violent intimate partner?
TONIA WERNER: They may be.
MR. OWENS: Do you agree that the DSM --
I think you have it there with you?
TONIA WERNER: Yes, sir.
MR. OWENS: -- directs that the clinician should consider post-traumatic stress disorder if there was exposure to extreme stress?
TONIA WERNER: Yes.
MR. OWENS: Do you agree with that?
TONIA WERNER: Yes.
MR. OWENS: Did you do any testing to measure whether or not Sarah Boone had post-traumatic stress disorder?
TONIA WERNER: No.
MR. OWENS: Is it your opinion that Sarah Boone suffers from post-traumatic stress disorder?
TONIA WERNER: Again, I -- she did not give me enough information to formulate an opinion with regards to that.
MR. OWENS: Do you agree that an intimate partner who commits acts of violence, physical violence, against the victim, that that could cause extreme stress in that individual?
TONIA WERNER: It may.
MR. OWENS: Do you agree if that is the cause, the violence is the cause of extreme stress, that a diagnosis of post-traumatic stress disorder should be considered?
TONIA WERNER: If they meet the criteria. They have to meet the diagnostic criteria.
MR. OWENS: Do you agree that there is a sense of learned helplessness when someone suffers from battered spouse syndrome?
TONIA WERNER: Yes, that's part of the syndrome.
MR. OWENS: Do you agree that these women, these battered women, have learned the probability of receiving a beating and they recognize specific predictive cues emitting from the batterers?
TONIA WERNER: Yes, but it's not just women.
MR. OWENS: I understand.
TONIA WERNER: Okay.
MR. OWENS: But you would agree, the vast majority of intimate partner violence, battered spouse syndrome victims are women?
TONIA WERNER: Yes. Of intimate partner violence, yes.
MR. OWENS: Excuse me?
TONIA WERNER: Intimate partner violence, yes.
MR. OWENS: The vast majority, the lion's share are women?
TONIA WERNER: Yes.
MR. OWENS: And these battered women have learned the probability of receiving a beating by recognizing specific predictive cues emitted by the batterers?
TONIA WERNER: Correct.
MR. OWENS: And many times these predictive cues result ina high level of anxiety?
TONIA WERNER: Yes.
MR. OWENS: And in that situation, the battered woman may attempt to reduce through several different means, one of which is to avoid delaying the beating?
TONIA WERNER: Yes. We talked about that with the cycle.
MR. OWENS: What is a basal instinct?
TONIA WERNER: A basal instinct? I have no idea.
MR. OWENS: Primal fear?
TONIA WERNER: Primal fear is just being afraid.
MR. OWENS: Is that a natural instinct that animals have?
TONIA WERNER: Yes.
MR. OWENS: Fight or flight instinct?
TONIA WERNER: Yes.
MR. OWENS: You don't even think about it?
TONIA WERNER: Correct.
MR. OWENS: Do you agree that victims of battered spouse -- or battered woman's syndrome suffer from self-isolation, Suicidal thoughts, and oftentimes substance abuse?
TONIA WERNER: They may. Each one -- each individual is different, so they may.
MR. OWENS: And they may show signs of physical injury and illness, such as bruising and chronic fatigue?
TONIA WERNER: Yes, those can be signs.
MR. OWENS: The syndrome, battered woman's syndrome, is the psychological effects of living with an intimate partner violence?
TONIA WERNER: Yes.
MR. OWENS: They may have intrusive memories?
TONIA WERNER: They may.
MR. OWENS: Where they re-experience past traumatic events in their mind?
TONIA WERNER: Yes.
MR. OWENS: May have high levels of anxiety?
TONIA WERNER: Yes, they may.
MR. OWENS: Hypervigilant when something doesn't seem right?
TONIA WERNER: They may.
MR. OWENS: It leads to this fight or flight response that we spoke about?
TONIA WERNER: Yes, they may.
MR. OWENS: They have problems with sleep?
TONIA WERNER: They may.
MR. OWENS: They often go into denial?
TONIA WERNER: They may.
MR. OWENS: Minimizing what is happening to them?
TONIA WERNER: They may.
MR. OWENS: Numbing their emotions?
TONIA WERNER: Some of them.
MR. OWENS: Dissociation, a battered woman may often develop a defense mechanism of being able to psychologically detach from their body during the traumatic experience?
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: Panic attacks, severe depression, very low self-esteem, poor body image, dissociation, learned helplessness, all of these are symptoms of a battered woman syndrome?
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: Do you agree panic attacks is one of the symptoms of battered woman syndrome?
THE COURT: Sustained.
BY MR. OWENS:
MR. OWENS: What are the symptoms of a battered spouse syndrome?
TONIA WERNER: They can be numerous symptoms, from anxiety symptoms, mood symptoms. They can have psychotic symptoms. So it can be any vast majority of symptoms. Substance abuse symptoms. Any vast majority.
MR. OWENS: Do you agree fear is a symptom?
TONIA WERNER: Yes.
MR. OWENS: Somebody in a constant state of fear?
TONIA WERNER: It may be, yes.
MR. OWENS: In terms of the abusive partner, do you agree that they would hit the victim?
TONIA WERNER: Some of them, yes.
MR. OWENS: Kick the victim?
TONIA WERNER: They may.
MR. OWENS: Punch and kick the victim?
TONIA WERNER: They may.
MR. OWENS: Choke?
TONIA WERNER: Abuse takes all different forms.
MR. OWENS: Choke?
TONIA WERNER: They may.
MR. OWENS: Burn?
TONIA WERNER: They may.
MR. OWENS: Destroy their belongings?
TONIA WERNER: They may.
MR. OWENS: Use weapons to hurt them?
TONIA WERNER: They may.
MR. OWENS: Threaten to hurt them, their children, or their pets?
TONIA WERNER: They may.
MR. OWENS: Take their car keys?
TONIA WERNER: They may.
MR. OWENS: Take their debit card?
TONIA WERNER: They may.
MR. OWENS: Take their vehicle?
TONIA WERNER: They may.
MR. OWENS: Control where they go and who they see?
TONIA WERNER: Yes, they may.
MR. OWENS: Force them to have sex when they don't want to?
TONIA WERNER: Yes, they may.
MR. OWENS: Dr. Werner, I know you spent a short amount of time with her and you're saying you didn't get some of the answers as to whether or not --
THE COURT: Objection sustained.
BY MR. OWENS:
MR. OWENS: If you'd have spent more time with Sarah Boone, could you have uncovered as to whether or not she suffered from battered spouse syndrome?
TONIA WERNER: I agreed that she met the criteria for -- or that she had battered spouse syndrome.
MR. OWENS: How about post-traumatic stress disorder?
TONIA WERNER: It's possible.
MR. OWENS: Thank you.
THE COURT: Any redirect examination?
THE COURT: You may proceed.