State Rests Rebuttal and Surrebuttal Discussion
236 linesJUDGE NEWMAN: Any further witnesses by the State?
MR. WATERS: Your Honor, in the rebuttal case, the State rests.
JUDGE NEWMAN: All right, ladies and gentlemen, the State has rested. I'm going to have you go to the jury room for a break. Please do not discuss the case.
(The jury left the courtroom.)
JUDGE NEWMAN: If everyone will be seated. Any comments you want to make, Mr. Harpootlian or Mr. Griffin, about surrebuttal?
MR. HARPOOTLIAN: About what? I'm sorry.
JUDGE NEWMAN: About surrebuttal, surreply.
MR. HARPOOTLIAN: No, thank you.
JUDGE NEWMAN: All right. So, the -- we have run out of time today as far as the jury view. We're going to take a recess for me to confer with counsel.
(Break in proceedings.)
(Public transcript withheld under seal from 5526:24 through 5544:12.)
(All parties returned to the courtroom.)
JUDGE NEWMAN: Okay. That's the end of all of the testimony. I don't know whether or not another motion or matter of law needs to be addressed at the end of reply.
MR. HARPOOTLIAN: Yes.
JUDGE NEWMAN: Do you need to preserve the record any further?
MR. HARPOOTLIAN: No, sir.
JUDGE NEWMAN: All right. So, we need to discuss jury charges. Also the jury view.
MR. HARPOOTLIAN: Your Honor, just in an abundance of caution --
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: -- we just want to -- I'm not sure we have. I've read a case on this, but renew all previous motions concerning a directed verdict, I would just preserve those. I'm not going to argue the grounds anymore.
JUDGE NEWMAN: Yes, sir. That's what I was suggesting to preserve the record. And the Court denies any motions regarding dismissals or directed verdicts. So, we need to have the jury come. If you'll bring the jury.
(The jury returned to the courtroom.)
COURT BAILIFF: The jury is present, sir.
JUDGE NEWMAN: Okay. Very good. Ladies and gentlemen we have now -- you have now heard all of the testimony and received all of the evidence in the case, and we are essentially done for the day. But when you return tomorrow morning, we're going to have the -- an escort take you all to the subject property, Moselle, to have a view, a jury view of the location, and I will be there as well to ensure things go as they should. But I need to instruct you as to how it happens, and give you these instructions, and that is that you will be taken to the scene of the alleged crimes, and while you are on your way to the scene and from the scene, you are not allowed to discuss the case with anyone, including your fellow jurors. And you're not allowed while there to ask any questions of anyone who may be there, including any law enforcement personnel or any other court officials. If you have any questions you can only ask me. You're still -- you still have not heard closing arguments.
You have not begun deliberating. So, the way tomorrow is expected to go, you will come. You'll have the jury view. After the jury view, you'll return for closing arguments. Then I will instruct you as to the law that you are to apply. Then you will deliberate in an effort to reach a verdict. But it's absolutely essential that you understand that you're being taken there to view the scene. Now, it has been a year and a half or more since June the 7th of 2021, since the alleged crime occurred, and things have changed, or most likely have changed. You'll a different season of the year, just change of circumstances as far as the property is concerned, so you have to take that in mind and certainly consider that, but still it's the same location. I've determined that it will be beneficial to you to be able to observe the scene that everyone has been talking about. And we will do that tomorrow morning. So, I want you to -- we'll prepare to leave now. I'm going to have you go back to the jury room and talk with the bailiff for a moment, and then you all will be dismissed for the day. And I'll instruct the personnel to take you directly to the scene at the designated time tomorrow morning, which will be 9:30. Do you all get here before 9:30? Like 9:00?
(Break in proceedings.)
JUDGE NEWMAN: So, we'll say 9:30, but you may leave before 9:30 since apparently you all get here pretty early, so we'll see how that works tomorrow morning. So, if you will go to the jury room now, and we'll prepare to dismiss for the day, and we'll see y'all after the viewing, after the view tomorrow morning. So, if you'll go to the jury room.
(The jury left the courtroom.)
JUDGE NEWMAN: Okay. As I stated, the scene will be secure and the -- law enforcement will ensure that no one is there to distract or to interfere with the jury view. I'm going to administer an oath to the people who will be transporting the jury: bailiffs, deputies, whoever they are. Danny Gregory -- if y'all will come forward now. Danny Gregory, Reuben Carter, Dale Polk, and Taylor Flynn. All right. If you'll -- I'm going to give y'all an oath. If you all will come and I'll administer the oath to you. All right, and if you first just state your names.
UNIDENTIFIED SPEAKER: Reuben Carter.
UNIDENTIFIED SPEAKER: Taylor Flynn.
UNIDENTIFIED SPEAKER: Daniel Gregory.
UNIDENTIFIED SPEAKER: Bill Polk.
JUDGE NEWMAN: All right, if you all will raise your right hands, please.
(All four complied.)
JUDGE NEWMAN: Do you swear that you will keep the jurors during the time you escort them to the property on Moselle, or at Moselle, and you will return them to the jury room, and that you will allow no person to speak to them, including yourself, while you have them in your custody, unless the Court otherwise gives you permission? If you accept that oath, please say I do.
(All four said I do.)
JUDGE NEWMAN: All right. Thank you very much. And as I said to the jury, the plan is to -- since I've told them now about the jury view, is that when they meet in the morning, I intend to go, and maybe the Clerk or one, two other court folks, but we'll go there prior to the jurors, prior to them coming here. Any questions about anything? Okay. Very good. And Mr. Polk, if I may speak to you for just a second, to you for a second?
(Break in proceedings.)
JUDGE NEWMAN: All right. I'm going to meet with the lawyers and discuss jury charges. Anything else before we adjourn for the day?
MR. HARPOOTLIAN: Nothing from the defense, Your Honor.
MR. WATERS: Nothing from the State, Your Honor.
JUDGE NEWMAN: All right. Very well. We're in adjournment. Let's see, I want to say adjourn until 9:30, but we'll have the jury view at 9:30. We'll need the court reporters. If you all will stand by. We going to adjourn until 10:30. We're not adjourning. We've got to discuss jury charges.
MR. HARPOOTLIAN: Yes, sir. I guess what I'm saying is if you go out there -- and, I mean, I understand we're allowed to go out there and watch the jurors the way they look at things and --
JUDGE NEWMAN: Yes.
MR. HARPOOTLIAN: -- and not speak with them. Do you think they'll be back here by what time?
JUDGE NEWMAN: I'm thinking 10:30.
MR. HARPOOTLIAN: They're going to leave here at 9:30?
JUDGE NEWMAN: Maybe before 9:30. We're going to figure all of that out. We may not be back exactly at 10:30, but we're going to shoot for 10:30. It may be 11:00.
MR. HARPOOTLIAN: Yes, sir.
JUDGE NEWMAN: It may be 11:30. Well, let's say 11:00, how about that? I mean, I don't know. It's whenever we get back really.
MR. HARPOOTLIAN: Statistically if I'm at Moselle with the jurors and they're not -- it takes 25 minutes to get there, they're going to be probably there for an hour, add 25 to that, about 2 hours total. I just didn't want to --
JUDGE NEWMAN: We'll say 11:00.
MR. HARPOOTLIAN: That's great. Thank you.
JUDGE NEWMAN: 11:00, yeah. We'll be in adjournment until we --
MR. HARPOOTLIAN: And you're talking about when they get back arguing and charging tomorrow.
JUDGE NEWMAN: Yes. Argue, charge, deliberation tomorrow.
MR. HARPOOTLIAN: All righty then.
JUDGE NEWMAN: All right.
MR. WATERS: Yes, sir.
MR. HARPOOTLIAN: Thank you, Your Honor.
JUDGE NEWMAN: And whether we deliberate will depend upon what time argument ends.
(Public transcript withheld under seal from 5550:23 through 5563:1.)
(All parties returned to the courtroom.)
JUDGE NEWMAN: Okay. Requested jury charges.
(Break in proceedings.)
JUDGE NEWMAN: Yes, sir?
MR. HARPOOTLIAN: Your Honor, maybe we can save a little time. Okay. Well, I think if we went through the State's proposed instructions we have, like, four we disagree with.
JUDGE NEWMAN: All right.
MR. HARPOOTLIAN: If we go through those maybe we can move this along quicker.
JUDGE NEWMAN: All right. Tell me the four you disagree with.
MR. HARPOOTLIAN: I'm sorry, sir?
JUDGE NEWMAN: Yeah. Tell my which four.
MR. HARPOOTLIAN: Yes, sir. Let me make sure I don't -- Mr. Griffin is taking a pen to them. That's the way I have to find them. I'm sorry. Okay. If you go to page 6, section 4, which says other bad acts and crimes, we would like -- number one is motive. We would like you to not charge two, three, four, and five, but your intent in regards to commission of the offense charge in this case, which it's not absence of mistake, it's not common scheme, it's not identity of the person or not. So, we would like you to leave -- restrict it to just motive.
JUDGE NEWMAN: All right. What says -- well, we'll get all of yours down and then we'll talk about them.
MR. HARPOOTLIAN: Yes, sir. If you go to page 10 of 14B, malice not impacted by voluntary intoxication. I'm not going to argue at this point. I'm just going to tell you which we want and then we can go back and deal with those. If you go to page 11 of 14, we object to the alibi charge, which is number 11. 11? 11. And then that may be it. I believe that's it.
JUDGE NEWMAN: All right. Motive, intoxication, alibi, and what else?
MR. HARPOOTLIAN: Other bad acts and crimes on page 6.
JUDGE NEWMAN: Yes, sir. That's part of motive, yeah.
MR. HARPOOTLIAN: Okay. I'm sorry. Voluntary intoxication --
JUDGE NEWMAN: Okay.
MR. HARPOOTLIAN: -- on page 10. Oh, no, and alibi. Did I say alibi?
JUDGE NEWMAN: Yeah.
MR. HARPOOTLIAN: Okay. Voluntary intoxication and alibi, and I think that's it. Yeah.
JUDGE NEWMAN: So, I have only three: bad acts, intoxication, and alibi.
MR. HARPOOTLIAN: No, there was more than that.
JUDGE NEWMAN: Is there something else?
MR. HARPOOTLIAN: I should have written them down. I apologize. Motive, voluntary intoxication, alibi. Is that it? Yeah, that's it. How many is that?
JUDGE NEWMAN: And bad acts.
MR. HARPOOTLIAN: Yeah, that's it.
JUDGE NEWMAN: All right, and regarding the State, objection to any defense request number?
MR. WATERS: Yes, sir. I provided the defense with a memo, and if I can approach and hand it up to Your Honor? And we can send an electronic copy later. Your Honor, a few things. Number one, we object to the mere presence instruction. State v. Stokes cited in the memo, that instruction is only warranted if there is issues raised as to whether the defendant is guilty as an accomplice in the crime, or if he's charged with possession of contraband as a result of being present when the contraband was found. Neither of those circumstances are present. As it relates to the circumstantial evidence charge, I think we have the -- what's the accepted and corrected language in there. They have all of the circumstances language.
MR. HARPOOTLIAN: We agree with that. We're --
MR. WATERS: With all of them?
MR. HARPOOTLIAN: With all of what?
MR. WATERS: Just the first one or all of them?
MR. HARPOOTLIAN: No, just the circumstantial evidence.
MR. WATERS: Okay. All right.
MR. HARPOOTLIAN: That is, I didn't object to yours.
MR. WATERS: Okay. So two and three, I guess, Your Honor, that's --
JUDGE NEWMAN: Your Logan -- your circumstantial evidence is the Logan charge?
MR. WATERS: Yes, sir.
JUDGE NEWMAN: Is what you requested.
MR. HARPOOTLIAN: So, we agree.
MR. WATERS: As modified by Herndon, Your Honor.
JUDGE NEWMAN: Well, the one word is taken out, two words taken out?
MR. WATERS: All of, exactly, yes, sir.
MR. HARPOOTLIAN: Do what now?
MR. WATERS: All of.
JUDGE NEWMAN: All of, yeah.
MR. HARPOOTLIAN: Yeah.
JUDGE NEWMAN: Okay, and we've been through that on some other cases. Okay.
MR. WATERS: All right. Again with the reasonable doubt instruction.
MR. HARPOOTLIAN: We agree.
MR. WATERS: You agree? Okay. They had their suggested language, which we had some issues with. It's in the memo verifying the State's language.
MR. HARPOOTLIAN: We're fine with his version. It's so easy.
MR. WATERS: Let's see here. With the other crimes and bad acts, again we have -- I should say there's the audio recordings charge, which that's on page 5 of our memo, and also the charge on the defendant as a witness. We think with both of those, those are specific instructions on the type of evidence that are unnecessary, and we would object to those, particularly identifying one particular sort of instance of evidence to the distinction of all others. And then as it relates to the bad acts, there's a couple of things there, going back to the defense objections to the State. We have the various things that are listed. That's just a citation of the rule, and so, you know -- with the various things in there, and so we would assert that that's proper law under Rule 404. Additionally, there was also the context of --
JUDGE NEWMAN: Well.
MR. WATERS: Yes, sir?
JUDGE NEWMAN: It's proper under the law but it was not what the Court allowed. The Court allowed it for the purpose of the motive. And anything else other than motive?
MR. WATERS: I think common scheme or plan at one point, and then I think ultimately motive is identity evidence, and so those are the three. I would agree with you with just the general intent and absence or mistake or accident, we can certainly take those out. I think the other three have been made applicable by the development of the evidence in this case as it -- you know, as it's developed from what the original ruling was. So, those would be the three that we would argue are appropriate here.
MR. HARPOOTLIAN: Your Honor, we believe motive -- while we disagreed with your ruling, motive is what it was allowed in for. Identity? The fact that he committed these financial crimes, it goes to identity? What was the other one? Common scheme. Certainly it was a common scheme to steal, but -- and he's proved the identity of the thief, but this is not an embezzlement financial case. Those -- you specifically allowed those in to show the motive, not anything else. And I think it would be confusing to the jury, and it gives rise to some sort of inference that if he did that, then he must have done this, and you're going to specifically tell them not. I assume you will recharge the charge you gave concerning the financial crimes only being allowed in for motive.
JUDGE NEWMAN: Anything else on that issue?
MR. HARPOOTLIAN: On that specific issue, Jim?
MR. WATERS: I think as the evidence developed, common scheme and plan came up with the reference to the side of the road, and it ultimately -- so, I think that that's certainly applicable.
MR. HARPOOTLIAN: The common scheme for the side of the road was to kill them and then kill himself?
MR. WATERS: I think that the common scheme as alleged, there was the attempt by the defendant to, when accountability was at his door, to engage in some sort of activity that's ultimately violent and that results in him becoming the victim.
MR. HARPOOTLIAN: Well, he meant to be dead. I think it was determined that everybody agrees he was supposed to be dead.
JUDGE NEWMAN: Okay. I agree with the defense on this. The evidence of bad acts can only considered by you as it relates to motive.
MR. HARPOOTLIAN: Thank you.
MR. WATERS: Your Honor, moving on to voluntary intoxication, certainly there's been ample evidence put into this record as it relates to his pill use, and I believe that was a --
JUDGE NEWMAN: As it relates to what now?
MR. WATERS: His pill use, and then extensively testified by the defendant as to that as well. So, I think it's an appropriate statement of law and was squarely raised by the issues in this particular case.
MR. HARPOOTLIAN: Your Honor, there's no evidence he was intoxicated on the day of the crime. No one has testified that he appeared to be intoxicated. He hasn't said he was intoxicated. He may have a habit, but this is -- we're not going to raise intoxication. I mean, just -- I don't quite understand why there's a need for the charge, and I think it's pejorative to the defendant if we're not raising that defense, and we're not raising the defense of voluntary intoxication.
MR. WATERS: Well, that's the point, Your Honor. It's not a defense, and that's why it's been put into issue here. It's appropriate for the jury to understand that voluntary intoxication is never a defense to any crime.
MR. HARPOOTLIAN: He hadn't raised the issue of voluntary intoxication as a defense to anything except maybe the financial crimes, which are only being introduced to show motive.
MR. WATERS: Court's indulgence one moment, Your Honor.
(Break in proceedings.)
MR. WATERS: I mean, he testified extensively -- first of all, we have his discussion of it on the side of road, but he also testified extensively about his paranoia and his agitation and those sorts of things. He testified about being clean. He made the statement I would never intentionally hurt Maggie and Paul. I think the issue was squarely raised particularly from the defendant's testimony in as much as it could confuse the jury as if intoxication -- voluntary intoxication can somehow preclude intent from existing. These are issues that are raised in the case, and again, they keep saying they're not raising a voluntary intoxication defense and that's the whole point, that it's not a defense. He, of course, you know, said that he was taking 60 pills a day.
JUDGE NEWMAN: Well, you know, the defendant mentioned that he was under the influence, or that affected his questioning or ability of -- being distrustful of SLED. In part, that all of that was triggered by his heavy drug use, but he -- it wasn't a defense to the crime, but as a defense to maybe the voluntariness of his statement or something, or the truthfulness of the statement because he was under the influence. The problem that I have seen with regard to voluntary intoxication, and I love you and I would never harm you and all of that, it comes in quite often with the issue -- in the issue of malice. And, of course, the State says malice is not impacted by voluntary intoxication. Jurors really get -- they get hung up and have been getting hung up most recently in deciding malice versus manslaughter because of the whole issue of intent. And so if the facts in these case -- in this case is the jury concludes, well, yes, he killed her, but he loved her, he killed them but he loved them dearly, then the jury could conclude, well, he didn't have malice. And he didn't have malice because he killed them because he was under the influence, because he was strung out on drugs, and that was his reaction to drugs. So, the charge that addresses this -- really this case addresses that issue, that voluntary intoxication does not impair a person's ability to act with malice aforethought, which is directly from that case. You know, that's -- it's worth strong consideration in this case.
MR. HARPOOTLIAN: Your Honor, is the State asking for a voluntary manslaughter charge? Because, I mean, that has been the problem where they -- you know, the voluntary intoxication may in their minds --
JUDGE NEWMAN: Well, that's where it comes in. You know, my -- you know, I've been arguing a lot with solicitors lately because jurors have found many people not guilty of murder, where they really think that the person is guilty of unlawful killing but they can't find the malice --
MR. HARPOOTLIAN: Well --
JUDGE NEWMAN: -- aforethought. Now, and as a matter of law, I mean, I'm arguing with the solicitors, saying, well, give the jury an option and then you'll get a verdict as opposed to losing a case or getting a hung jury. You know, the all or nothing proposition often works against the State. But as a matter of law, what I've been telling them is not correct because of this case that says exactly what this case says. It doesn't reduce -- it's not a substitute for malice, voluntary intoxication. But, you know, jurors will read into things whatever they want to read into it, but, you know, it says that voluntary intoxication does impair a person's ability to act with malice and is not a defense to the crime.
MR. HARPOOTLIAN: Your Honor, all I would say is this. Are they contemplating voluntary manslaughter?
MR. WATERS: We have not requested one, Your Honor.
JUDGE NEWMAN: Pardon?
MR. WATERS: We have not requested one, Your Honor.
JUDGE NEWMAN: Yeah. The State loves all or nothing generally, and that's what ties up jurors -- juries in deliberations.
MR. WATERS: It's not -- yeah. I mean, that's ultimately the issue is -- and, you know, I know this from a case that I argued, State v. Starnes, as to whether or not there's evidence in the record of the elements of voluntary manslaughter, which would be sufficient provocation and heat of passion. And --
JUDGE NEWMAN: Or lack of -- or lack of malice.
MR. WATERS: Of lack --
JUDGE NEWMAN: An lawful killing without malice is manslaughter, isn't it?
MR. WATERS: Clearly without malice it would be involuntary if you have the elements.
JUDGE NEWMAN: A voluntary killing without malice.
MR. WATERS: Yes, sir.
MR. HARPOOTLIAN: We would oppose this charge. And the Attorney General can maybe contemplate overnight whether he wants a lesser included as opposed to the voluntary. And we, by the way, I think we would just oppose that. We would oppose the charge except murder up or down. We think --
JUDGE NEWMAN: Yeah. So, you all are on the same page with that. And generally if both sides are on the same page, I'm on the page that you all are on. If so, that's a -- but it still raises the -- that makes more valid the State's requested charge, and that is --
MR. HARPOOTLIAN: But, Your Honor, we're not raising -- very haven't raised voluntary intoxication. I'm afraid this is going to confuse the jury. Maybe as to the statement, but not as to the homicides. Our defense is he didn't do it. He didn't pull the trigger. He didn't -- he wasn't there. So, I think this is confusing the jury, and I'm afraid it's going to cause a matter of consternation to the jury. And, again, there's nothing that was raised by the defense it was voluntary intoxication as to the admission of these crimes. Now, there's been no, you know, not a shred of evidence -- the defendant testified and said he didn't do it. Not that he did it when he was impaired, not he did it under those drugs.
JUDGE NEWMAN: They are good arguments on both sides of this, so we'll put a question mark on that one for the time being.
MR. HARPOOTLIAN: Okay. Thank you.
MR. WATERS: The final one, Your Honor, is alibi. And again, the defendant expressly pled in response to the State's request for notice of alibi, so we believe obviously this is a correct statement of law and applicable by the defendant's own pleadings in this case.
MR. HARPOOTLIAN: Well, this is -- I think this charge is burden shifting. We raised the defense of alibi. In order to establish an alibi, it must be shown that the defendant was in another specified place when the crime was committed and it was, therefore, impossible for the defendant to have been at the scene. Mere denial of presence at the scene does not constitute an alibi. Well, there's no burden on the defendant to prove alibi. The burden is on the State to prove beyond a reasonable doubt that the defendant was actually present at the scene and actually participated and was not somewhere else. In other words, State has the burden of disproving the defendant's alibi beyond a reasonable doubt. Let me check with Mr. Griffin.
JUDGE NEWMAN: Is alibi statutory or what? Is that a -- notice of alibi, is that a --
MR. HARPOOTLIAN: Well, it's in the --
MR. GRIFFIN: Rule 5.
JUDGE NEWMAN: Yeah, a rule, okay. Well, it's statutory.
MR. GRIFFIN: Well, Your Honor, they asked for us to provide notice of alibi. They didn't give a specific time or any time initially. Then we objected. Your Honor ruled that they had to give some time period. Then they gave sort of a broad time period of, you know, between the hours of -- I've forgotten what it was, it was pretty broad, and we said in response we don't know when the murders occurred because we were not there, but here is where we were. We were on the property until 9:06.
JUDGE NEWMAN: Well, assuming you get over that hurdle, how do you get over the hurdle of mere presence requiring, as Mr. Waters says --
MR. GRIFFIN: Well, we think they're probably right on that --
JUDGE NEWMAN: -- where the defendant is -- say it again.
MR. HARPOOTLIAN: We think they're probably right on that, Your Honor.
JUDGE NEWMAN: So, it can't be both. I mean, if you -- you can't have mere presence, according to the State, unless you are --
MR. HARPOOTLIAN: We agree, Your Honor.
JUDGE NEWMAN: -- actually there at the time.
MR. HARPOOTLIAN: We agree.
JUDGE NEWMAN: Okay.
MR. GRIFFIN: Yeah, we withdraw that.
JUDGE NEWMAN: So, you withdraw your mere presence, but the State wants alibi.
MR. HARPOOTLIAN: Yes, sir, we oppose that.
JUDGE NEWMAN: And you want alibi though they've withdrawn mere presence?
MR. WATERS: Court's indulgence.
(Break in proceedings.)
MR. WATERS: If they will withdraw mere presence, then we will withdraw the alibi.
JUDGE NEWMAN: All right. So, you all are in agreement on that.
MR. HARPOOTLIAN: Done.
JUDGE NEWMAN: All right. No alibi, no mere presence. So, what do y'all disagree on?
MR. HARPOOTLIAN: It's a kumbaya moment, Your Honor, in these proceedings. Did we deal with audio recording?
JUDGE NEWMAN: Of course, the defendant is a witness. That's -- I've never seen that given as a charge where the defendant has testified, putting special emphasis on the way they're to look at the defendant's testimony as opposed to any other witness.
MR. GRIFFIN: Your Honor, our point on that particular charge is really more directed to the 608 evidence that was admitted.
JUDGE NEWMAN: 608 evidence.
MR. GRIFFIN: You know, the character evidence, that the jury could consider evidence of character to assess the credibility. You allowed that as an alternative ground, which was some of the bad conduct evidence, and we're just trying to get the limitation that that is only -- that's all it could be considered for and nothing beyond that. It can't be considered as propensity evidence. That's the point of that charge.
JUDGE NEWMAN: But that's not defendant as a witness. That's prior bad acts, isn't it?
MR. GRIFFIN: Yes, sir, but they argued under 608 also and you've admitted that.
JUDGE NEWMAN: Mr. Waters.
MR. WATERS: Your Honor, again, and I appreciate the defense bringing that up. I mean, we have the 404, but ultimately issues of credibility are always in play, particularly when the defendant testifies. And so I think their particular instruction again of, you know, as you just stated would unduly emphasize one particular aspect of the evidence. And again, I know that there's going to be a prior bad acts charge, but I don't know that there needs to be a specific emphasis on the defendant distinct from all other classes of evidence in this particular regard. Ultimately, you know, as to this second paragraph, you know, we have introduction of this evidence, or introduction of things related to this that are based in other theories than just 404, and so I think that the clearest means of instruction on this particular subject would be a 404 instruction, and no other specific instruction as it relates to the defendant need to be given.
JUDGE NEWMAN: Okay, and one issue or concern that I have with regard to the other crimes and bad acts charge, not -- it's not the limiting instruction requested by the defendant, but the comment about Mr. Murdaugh facing hundreds of years on other charges, and the jury is not to consider any other crimes or any other possible punishment that the defendant may be facing as it relates to any other crimes. And if I give this limiting instruction regarding other crimes, which the defendant has, in effect, admitted to, the jury needs to be instructed that they cannot consider that at all in deciding whether he's guilty or not guilty of this particular crime. And I'm trying to contemplate the best place in the jury charge to include that. Quite often it's put in -- well -- Yes, sir?
MR. MEADORS: May it please the Court?
JUDGE NEWMAN: Yeah.
MR. MEADORS: Judge, is that to go along with that -- they won't be able to argue that he's looking at a bunch of time on these other charges, correct?
JUDGE NEWMAN: The jury cannot consider that. They cannot consider the fact that he's charged or may have committed other bad acts. I mean, in this particular instance, it's sort of a two-edged sword because the other crimes are not admissible to prove character in order to show action in conformity therewith, or he's more likely to have committed the crime for which he is accused of. You may not consider evidence of other crimes and bad acts for this purpose, or for any purpose other than as it relates to defendant's motive. You know, basically nor can you consider any other crime or criminal acts for which the defendant may be facing punishment.
MR. MEADORS: Okay.
JUDGE NEWMAN: I mean, you know, the wording of that, I don't know, but it needs to be included because a jury cannot consider that, and that was put out there. I mean, basically that was -- actually, that was one of the most egregious violations, I think, that's come up during the course of the trial and the jury needs to be -- needs to be -- it needs to be -- there's -- some instruction should be given on that.
MR. MEADORS: Thank you.
JUDGE NEWMAN: Now, where it should be put in this instruction, you know, I'll leave for you all to figure that out and how few words it needs to be expressed in by using, but it must be included.
MR. WATERS: Yes, sir, Your Honor.
JUDGE NEWMAN: So, I'm going to give you all an opportunity to insert it somewhere.
MR. WATERS: We'll be working on that this evening, Your Honor.
JUDGE NEWMAN: And copy the other side. All right. Now, on all of these, almost everything the State has sent, I mean, those are, for the most part, standard charges. You know, these are what i give every time on a murder case, and it's -- you know, every time we do a trial, by the time we do the next one, something else has occurred and we have to refine it and refine it and refine it. But, you know, we did two murder cases in December, so we've been giving murder charges pretty frequently lately. And this request, I know you all have citations and all and it's -- and so what you've requested is a basic murder charge. And so we're going to include whatever y'all have agreed on here, take out what needs to be taken out, and then we'll email it to you all tonight, and we'll include some language referencing not considering any other crime that he might have been charged and may be facing in their deliberations. So, we'll send that to you all, and then I welcome any comment or criticisms, whatever, you know. I use the lawyers and my editorial board to correct, suggest modify, or suggest modifications, and so there's no pride and ownership. And then I blame my law clerk whenever there is an error, so there's no problem.
MR. GRIFFIN: Your Honor, will you send the instructions back?
JUDGE NEWMAN: Yes. We'll give them a copy of the charge. Again, regarding audio recording, what's the story there, that request to charge involving audio recordings?
MR. WATERS: Your Honor, our only comment on that one is, again, it's just a specific on a class of evidence that we believe is unnecessary to single that out, and that is our only basis for objection to that.
JUDGE NEWMAN: All right. Any other comment about that?
MR. GRIFFIN: Your Honor, I mean, there is audio coming in, and there was testimony about what was on the audio, and so I don't think it's a charge on the facts. It's just how the jury deals with the issue.
MR. WATERS: And, Your Honor, what they cite, of course, are which -- are cases in federal court where they were referring to transcripts that have been admitted into evidence, and none of that ever happened. So, these instructions are unnecessary and are not even justified by the cases that they cited in support of that instruction. There have been no transcripts admitted, and so, again, I don't believe that this instruction is necessary even under the cases that they've cited.
JUDGE NEWMAN: Well, the standard instruction is that -- let's see, recollection of counsel, let's see --
(Break in proceedings.)
JUDGE NEWMAN: Part of the standard charge is that arguments of counsel, that while the arguments of counsel are a beneficial part of every trial, counsel refers to the evidence, but you should base your verdict on the evidence as you remember it. If there are conflicts between recollection of counsel about the evidence and your own recollection, you are to rely on your own understanding of the evidence. I mean, that's, in effect, saying the same thing. I mean, we've had these number of weeks of testimony and conflicting accounts of the testimony and all of that. I don't think I should single that out more so than any other part. The jury will be tasked with utilizing their own recollection as to the evidence, so that's more argument than jury charge, so I'm not going to charge that. All right. Anything else?
MR. WATERS: Nothing from the State at this time, Your Honor.
MR. HARPOOTLIAN: Nothing from the defendant, Your Honor.
JUDGE NEWMAN: All right. So, we plan to get together at 9:30 and go out to Moselle.
MR. HARPOOTLIAN: Your Honor, is it okay if I meet you at Moselle? I'm staying not far from there.
JUDGE NEWMAN: No, it's fine. You can meet us there.
MR. HARPOOTLIAN: And you believe we should be starting final arguments at 11:00?
JUDGE NEWMAN: Yeah. If we can get there and get back out of there, that's like -- by 11:00 sounds good.
MR. WATERS: I probably will not attend that, so I'll have another counsel member of the team attend that, the jury viewing.
JUDGE NEWMAN: So, you'll be ready --
MR. WATERS: I'll be ready to go.
JUDGE NEWMAN: -- at 11:00, so --
MR. HARPOOTLIAN: Mr. Griffin is not coming either. He'll be ready.
JUDGE NEWMAN: Oh, so you all will be ready, yeah, as soon as we get back. Okay.
MR. HARPOOTLIAN: So, he probably will be ready at 2:30 or 3:00, whenever Mr. Waters finishes his opening.
JUDGE NEWMAN: If you all intend to use any PowerPoints in your closing, if you'll email a copy to the Court so that we can see it is as you're presenting it, or in advance.
MR. WATERS: Yes, sir.
MR. HARPOOTLIAN: Thank you, Your Honor.
JUDGE NEWMAN: All right. See y'all tomorrow.
(Whereupon, the case was at ease.)