Heidi Galore — Direct/Cross
199 linesTHURSDAY, FEBRUARY 2, 2023
(Court resumed at 9:35 a.m.)
JUDGE NEWMAN: Good morning.
MR. WATERS: Good morning, Your Honor.
MR. HARPOOTLIAN: Good morning, Your Honor.
JUDGE NEWMAN: First I want to address the ruling yesterday overruling the objection by the defense to the State's question of the witness on redirect as to whether he was aware of certain things that had occurred earlier on June 7th involving Mr. Murdaugh, or Murdaugh. In the questioning, cross-examination of the witness by Mr. Griffin, the witness was asked whether he could think of any reason -- the gist of it, if he can think of any reason possible why Mr. Murdaugh would commit the crimes he is accused of committing. That, in effect, turned the cross-examination of that witness from dealing with the specific issues in the case to having that witness testify as a character witness for Mr. Murdaugh.
Among his other areas in inquiry was his being a loving father, great provider, financially secure, things of that nature, all indicating an opinion by that witness as to the good character of the defendant, either through direct statements or circumstantially through the evidence that was adduced from that witness. In the Court's view, that opened the door for the State to respond by asking questions as the State did, hence the Court overruled the objection. In addition to all of that, the objection was totally inappropriate. As the Court laid out and reviewed with the parties early in the trial, that objection should be made and the legal basis stated. An objection of -- totally inappropriate is, in the words of Judge Joe Anderson, in effect, no objection at all. That's not a legal basis for an objection. But that summarizes the basis for the Court's ruling on that issue as to those questions yesterday. And that character type evidence was not only sought by -- from Mr.
Gibson, but also -- is it Loving? But also Mr. Loving. And none of that really implicated rule 404 -- 404B. Number one, it opened the door. Number two, it's 404A type reputation questioning that the State had a right to respond to per the rule. And thirdly, it addressed an issue raised in the case by the defense. The defense in the case has primarily been the defendant has such a great character that he could not possibly have committed these offenses; that's been a general thread from opening statement throughout. In addition, the, the defense introduced through that witness, which was also introduced through other testimony in the case by the defendant, that the boating case was a reason for the murders to have occurred, and by the defense inquiring of the witness yesterday as to his knowledge and belief concerning -- or his knowledge concerning the boating case. That likewise opened the door for the State to address that issue, and that is the basis for the Court's ruling as to opening the door, introducing the boating case, and reputation type evidence that the State had a right to respond under Rule 403. Yet to be addressed by the Court is Rule 404 issues, and those issues will, to some degree, have to be addressed in camera, and I'm wondering if the State has other witnesses to testify as to other things, since we have the jury here ready to go, prior to addressing other of those -- any other --
MR. WATERS: Well, we do have a -- first of all, we do have a Snapchat custodian who has flown in that we need to get in so that person can make a flight. Based on how things ended yesterday, I do -- I was prepared this morning, we were planning on going forward with some of the witnesses from the law firm, and that's going to -- there's certainly stuff beyond 404, but that's also going to put some of the 404 issues squarely into play. So, that's kind of where we were planning to go this morning, Your Honor, with the testimony that we have. I can certainly get some more forensic people rolling. And I apologize if I sort of misread what we needed to be ready to do, but that's kind of what we focused on last night and are ready to address this morning.
JUDGE NEWMAN: Yeah. Well, the Court didn't have a lot of time to do jury planning issues and it might have, you know -- the jurors typically come at 9:30. It might have been a better idea had -- with the greater thought to have them -- to have had them come later, but -- and I don't know how long these issues will take to be addressed.
MR. WATERS: I think with the two law firm witnesses out of the gate, I think, you know, once the Court has -- you know, we can do some very focused in-camera testimony, and I think that for those witnesses, you know, the Court can then rule on what's admissible and what's not. And once that's done, then we can get underway for the jury for those witnesses and proceed accordingly. And then, of course, we can certainly have a discussion as far as other witnesses and then perhaps arrange a time to do any other in camera. But I think setting the table with these two witnesses is going to set the table for many of the issues that -- you know, whether they're in or out that the Court has to decide.
JUDGE NEWMAN: All right. Well, first as it relates to Rule 404, Rule 404B states that evidence of other crimes or wrong is not admissible to prove the character of a person in order to show action in conformity therewith. In other words, not admissible to show propensity to commit the crime, or a crime, but it may be admitted for certain other reasons including motive, identity, intent, and the -- and perhaps the existence of a common scheme or plan. Additionally -- well, I'll address it later regarding res gestae, but my view of the evidence is that evidence of the other alleged crimes can be introduced in this case to show motive, intent, and common scheme or plan given the proper analysis as it relates to that evidence being offered. As I indicated earlier, that the Court agrees with the view, and as expressed by the Court in U.S. v.
Siegel, 536 Federal 3rd 306, wherein the Court addressed the issue of previous crimes involving -- previous alleged crimes involving multiple victims, and that the State should be able to pursue its theory of proving that why suddenly, or why some such tragic -- the motive for such tragic an occurrence to have taken place on the dates alleged here. And under the federal rule it goes on to say that evidence of other crimes or bad acts is necessary if it is an essential part of the crimes on trial, or where it furnishes part of the context of the crime. This state has not adopted rule -- that portion of Rule 404B, but the courts have addressed that issue in some of the cases.
Particularly one that stands out to me is one of my cases, State v Frankie Lee McGee from Richland County, in which the res gestae was used as a basis for the Court's properly allowing certain evidence, including evidence of commission of an earlier crime, the test being whether it logically relates to the crime with which the defendant is charged. The Court states in that opinion under res gestae that one of the accepted bases for the admissibility of the evidence of other crimes arises from such evidence furnishes part of the context of the crime, or is necessary to a full presentation of the case, or is so intimately connected with an explanatory of the crime charged against the defendant, and is so much a part of the setting of the case in its environment that its proof is appropriate in order to complete the story of the crime on trial by proving its immediate context, or the res gestae, or the uncharged offense is so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other, and thus is part of the res gestae of the crime charged.
And where evidence is admissible to prove this full presentation of the offense, there is no reason to fragmentize events under inquiry by suppressing parts of the res gestae. And interestingly involved in that case, the Court held that that did not require a 403 analysis. Because the evidence was properly admitted as part of the res gestae, the issue of whether or not a 404B analysis was done is not necessary or -- and at this point the Court hasn't addressed any particular issue under 404B, but I find that it is admissible provided that the proper scrutiny is done in relation to clear and convincing evidence and logical relationship to the offense for which we're having this trial. Additionally, as it relates to intent, evidence tending to prove a defendant's state of mind or intent at or near the time of the crime is relevant to establish possible guilt. So, there are many areas under which it's appropriate for the Court to consider admitting this evidence of other crimes, other bad acts in a manner that does not address or seek to have the jury conclude that it's propensity evidence, and the Court will address all of that as we proceed.
MR. WATERS: Yes, sir, Your Honor.
JUDGE NEWMAN: Yes, sir, Mr. Griffin?
MR. GRIFFIN: Thank you, Your Honor. I just want to get some arguments on the record for purposes --
JUDGE NEWMAN: Yes, sir.
MR. GRIFFIN: As to Your Honor's conclusion that we opened the door by presenting evidence of good character, I would respectfully disagree, and the evidence that we presented was specifically limited to the relationship between the defendant and the victims for which he's accused of murdering. In our view, that is not character witness. That's a factual issue relating to the relationship between the parties, and so I just want to put that on the record. Your Honor puts great emphasis and reliance on U.S. vs. Siegel, and that's a federal case and I just want -- I want to point out --
JUDGE NEWMAN: I gave the cite, the federal cite, yeah.
MR. GRIFFIN: Yes, sir.
JUDGE NEWMAN: The federal cite, right.
MR. GRIFFIN: Yes, sir. The federal cite is 536 F3rd 306.
JUDGE NEWMAN: F3rd, yes.
MR. GRIFFIN: Yes, sir, and the -- and it's important to distinguish the federal crimes for which the defendant in Siegel was on charge -- was charged with. First the defendant, she was charged with murdering the victim to prevent him from reporting fraud, and that's a specific federal statute, 18USC1512A1C. She was also charged with impeding an official investigation by transporting the defendant -- I mean, the deceased's body across state lines. But further the indictment alleged a broader scheme and artifice to defraud, and in the indictment it listed many of the prior crimes that the defendant committed in the federal indictment. And so -- and under Federal Rule 404B you can prove those up, and then there were others that the Court considered that were related to the whole scheme and artifice to defraud. The indictment in this case, Your Honor, is it is simply on June 7th of 2021, the defendant with malice aforethought murdered Ms. Maggie Murdaugh, murdered Mr. Paul Murdaugh, and used violent weapons in the commission of those two crimes. There's no scheme and artifice to defraud.
JUDGE NEWMAN: You're currently addressing it as if the court ruled based on 404.
MR. GRIFFIN: Well --
JUDGE NEWMAN: And the Court clearly stated that we have not reached any determination under 404, that the basis of the Court's ruling was --
MR. GRIFFIN: Yes, sir.
JUDGE NEWMAN: -- 403. The boating case, as you introduced through the witness, and opening the door to by giving testimony -- soliciting testimony of generally good character of the defendant such that neither of the two witnesses could possibly imagine the scenario under which -- what would cause this crime to have occurred, and the State is entitled to confront that evidence in the manner in which the Court ruled. But you're arguing 404. I cited that for an additional basis to say the Court would will need to look at all of that as we proceed with evidence of prior bad acts. But the basis of the Court's ruling was not 404 but 403, opening the door and responding to evidence that you produced.
MR. GRIFFIN: Yes, sir. And I apologize, I misunderstood the --
JUDGE NEWMAN: Yes, sir.
MR. GRIFFIN: -- Your Honor's --
JUDGE NEWMAN: I did not rule based on U.S. v. Siegel in overruling your objection yesterday.
MR. GRIFFIN: Fair enough. I will -- I guess I would ask for clarification of where we go from here. Is it your intention to have a hearing outside of the presence of the jury on their proposed 404B evidence?
JUDGE NEWMAN: Yes, sir.
MR. GRIFFIN: Okay. Then I can save all my arguments then. Thank you.
JUDGE NEWMAN: Yes, sir. And, again, with regard to planning purposes for the jury, you have set up a witness. Whatever can be done without getting into the 404 or the Court's need for an in-camera hearing where we have need to dismiss the jury for whatever period of time that might be, we can press on with what you have otherwise at this time, and whatever that is is what we'll hear.
MR. WATERS: Yes, sir, Your Honor. Like I say, we have one short custodian, and then I think our next witness who's here would be somebody where we would need to address some of the 404. That would be Jeannie Seckinger from the law firm. If you would give me one moment, I can -- to confer with my staff and we can see if we can get some other people rolling so we can kind of stagger that and continue to have presentation for the jury during the course of the day.
JUDGE NEWMAN: All right.
(Break in proceedings.)
JUDGE NEWMAN: We'll be in recess for a few minutes.
MR. WATERS: Thank you, Your Honor.
MR. GRIFFIN: Thank you, Your Honor.
(A break was taken.)
JUDGE NEWMAN: All right. Are you ready to proceed?
MR. WATERS: Yes, sir. We do have, again, that custodian witness. Then I think we would have to -- we are rolling some additional witness, but I think at that time we would have to break and do at least the first in-camera witness. Again, I think that may set the table for a lot of subsequent things.
JUDGE NEWMAN: Yes, sir.
MR. WATERS: And then we could have some additional work outside of any 404 stuff in the afternoon, Your Honor. But I'm certainly happy to do that, or if you want we can put up some multiple witnesses on the in camera here today.
JUDGE NEWMAN: Yes, sir. I think as it relates to each alleged bad act it must be a -- the Court must be informed and proffered and addressed separately. Of course, some may be a series of things occurring almost simultaneously, so that may be a different scenario, but we'll see how it goes. Are we ready proceed with the jury?
MR. WATERS: Yes, sir, Your Honor.
(The jury returned to the courtroom.)
JUDGE NEWMAN: Good morning.
(The jury responded good morning.)
JUDGE NEWMAN: Thank you. Welcome back. Day number nine, the State's case. You may call your next witness.
MR. CONRAD: Thank you. The State calls Heidi Galore.
The witness, HEIDI GALORE, was first duly sworn and testified as follows:
COURT CLERK: Take a seat in the witness stand. State your name again for the record. Spell your last name, please.
HEIDI GALORE: My name is Heidi Galore, last name is spelled G-a-l-o-r-e.
MR. CONRAD: Please the Court?
JUDGE NEWMAN: Yes, sir.
DIRECT EXAMINATION
BY MR. CONRAD:
MR. CONRAD: Good morning, Ms. Galore. Where do you work?
HEIDI GALORE: Good morning. I work for Snap, Incorporated.
MR. CONRAD: What are your duties there?
HEIDI GALORE: I'm in the operation -- or law enforcement operations lead, so I assist with and help manage a team of folks who respond to law enforcement legal process --
JUDGE NEWMAN: Can you come forward any?
HEIDI GALORE: Sure.
HEIDI GALORE: Our team responds to legal process submitted to our company: subpoenas, search warrants, that kind of thing.
MR. CONRAD: All right. So, you're in charge in responding to search warrants or subpoenas from law enforcement or other legal entities?
HEIDI GALORE: Correct.
MR. CONRAD: And briefly, please, what is Snapchat?
HEIDI GALORE: Snapchat, it's an application that was created by Snap, Incorporated, to help people express themselves. It's -- people can connect to their friends, people they know, and I guess you could consider it a social networking type of application.
MR. CONRAD: Is social media another word that can be used for Snapchat?
HEIDI GALORE: Yes.
MR. CONRAD: All right. Does it give the ability for individuals to send each others messages?
HEIDI GALORE: Yes.
MR. CONRAD: Does it give the ability for individuals to send each other pictures or videos?
HEIDI GALORE: Yes.
MR. CONRAD: All right, and in the normal course of its business, does Snapchat keep records if the user so chooses?
HEIDI GALORE: Yes.
MR. CONRAD: And what kind of records does Snapchat use?
HEIDI GALORE: Basic subscriber information contents that was sent to and from folks' IP logs, geolocation, depending on the settings of the user.
MR. CONRAD: Okay. All right. I'm going to show you what's marked as State's Exhibit 305 and 304, and I'm going to ask if you recognize these two items.
HEIDI GALORE: I do, yes.
MR. CONRAD: And what are you holding?
HEIDI GALORE: The paper here is the basic subscriber information for the user that was produced in the search warrant.
MR. CONRAD: And what is that CD?
HEIDI GALORE: The CD contains the full production of files that was sent to your agency requested from the search warrant.
MR. CONRAD: All right, and that was a search warrant from SLED --
HEIDI GALORE: Yes.
MR. CONRAD: -- that Snapchat responded to?
HEIDI GALORE: Correct.
MR. CONRAD: Okay, and you said there was subscriber information on that piece of paper, correct?
HEIDI GALORE: Yes.
MR. CONRAD: And is that also located on the CD in a digital way?
HEIDI GALORE: Yes. Yes.
MR. CONRAD: And, Your Honor, at this time the State would move these into evidence.
MR. BARBER: No objection, Your Honor.
JUDGE NEWMAN: They're admitted without objection.
(SNAPCHAT SHEET MARKED AS STATE'S EXHIBIT NUMBER 304 WAS RECEIVED INTO EVIDENCE.)
(SNAPCHAT CD MARKED AS STATE'S EXHIBIT NUMBER 305 WAS RECEIVED INTO EVIDENCE.)
MR. CONRAD: All right. I'm going to hand you back State's 304, and you said -- you indicated that was subscriber information. Is that correct?
HEIDI GALORE: Correct.
MR. CONRAD: All right, and could you read for the jury the subscriber information for the information on the account that you provided to -- in response to the search warrant?
HEIDI GALORE: Sure. The user name is listed here --
JUDGE NEWMAN: A little louder, please.
HEIDI GALORE: The user name is listed here as Paul9499. It's the common spelling for Paul. The email address listed here is PaulMurdaugh7845@gmail.com. This was created -- the account was created on Saturday, May 18, 2013. There was a creation IP but it's not listed here. Sometimes it's captured at the time of creation of the account; in this case, is doesn't seem to be. Phone number listed here is (803)842-7845. Display name is listed as Paul Murdaugh, and the status is active.
MR. CONRAD: Okay, and when somebody uses a telephone number, for example, to create a Snapchat account, does Snapchat verify that number?
HEIDI GALORE: If the user wants to verify the phone number, yes, they can, but it's not required.
MR. CONRAD: Okay, and what about the email? Is that required?
HEIDI GALORE: Not required either, no.
MR. CONRAD: All right. I'm going to hand you State's Exhibit 306. This is already in evidence, and I believe this is a CD. Do you recognize that CD?
HEIDI GALORE: Yes, I do.
MR. CONRAD: And have you reviewed the contents of that CD?
HEIDI GALORE: Yes, I have.
MR. CONRAD: And what is on the contents of that CD?
HEIDI GALORE: It's a video of a subject near a tree, and it's a short video with some audio.
MR. CONRAD: Okay, and did that video, was that part of the full search warrant return that we just talked about?
HEIDI GALORE: Yes.
MR. CONRAD: And did you take a look at that video and the records contained in the other CD to determine when that video was first uploaded and first sent?
HEIDI GALORE: Yes.
MR. CONRAD: Okay. Well, first of all let's talk about the upload. Was it uploaded to something called memories?
HEIDI GALORE: Yes.
MR. CONRAD: And could you describe to the jury, what is memories? What is that function with Snapchat?
HEIDI GALORE: Memories is kind of like a bucket where you can save your data. You can either create a video or some sort of photo on the app itself and save it to your memories so that it's always there when you need it, or you can upload from your camera or your phone into memories to then send to folks later, or just have it in there.
MR. CONRAD: So, is that a form of saving? Like trying to save something in the Cloud?
HEIDI GALORE: Correct, yes. It will be on the server.
MR. CONRAD: All right, and in reviewing these records, did you determine when this account uploaded that particular video to memories?
HEIDI GALORE: Yes. This video was first seen on memories on June 7, 2021, at 7:39 hours Eastern.
MR. CONRAD: Okay, and did Snapchat also keep a record when an individual sends out a communication?
HEIDI GALORE: Yes.
MR. CONRAD: And did you determine in reviewing the records whether, excuse me, that account sent out that particular video?
HEIDI GALORE: Yes. It was sent on the same day, June 7, 2021, at 23 -- or, I'm sorry, 7:56 hours Eastern time.
MR. CONRAD: All right, thank you. I'm going to show you -- if you'll look at your monitor in front of you, and I'm going to show you State's Exhibit 306 and see if you recognize it.
(The video was played. Audio not transcribed.)
MR. CONRAD: All right, and did you recognize that video?
HEIDI GALORE: It didn't show up on the --
MR. CONRAD: I'm sorry.
MR. CONRAD: Can we get the screen? I apologize. Okay.
MR. CONRAD: All right, try it again. Can you see the what's on your scene right now?
HEIDI GALORE: Yes.
MR. CONRAD: All right. I'll play that one more time.
(The video was played. Audio not transcribed.)
MR. CONRAD: Okay, and do you recognize that video, ma'am?
HEIDI GALORE: Yes, I do.
MR. CONRAD: All right, and is that video the video we just discussed that was part of the Snapchat search warrant return?
HEIDI GALORE: Yes.
MR. CONRAD: And that you just testified was uploaded at 7:39 p.m. and sent at 7:56 p.m.?
HEIDI GALORE: Yes.
MR. CONRAD: No further questions.
JUDGE NEWMAN: By the defense?
CROSS-EXAMINATION
BY MR. BARBER:
MR. BARBER: Good morning.
HEIDI GALORE: Good morning.
MR. BARBER: Can we pull up the Snapchat video, Doug? I think it's plugged into this computer.
(Break in proceedings.)
MR. BARBER: That's good.
MR. BARBER: So, this is what -- or part of what Snapchat gave to the State on July 6th. Is that -- of 2021. Is that correct?
HEIDI GALORE: Correct.
MR. BARBER: So, they -- the State had this on July 6, 2021, in the State's possession --
HEIDI GALORE: I believe so, yes.
MR. BARBER: -- this information. And you testified that this was uploaded at 7:39 p.m. on the 7th of June, correct?
HEIDI GALORE: Correct.
MR. BARBER: Is that exactly when this video was shot?
HEIDI GALORE: I can't tell that information from the production.
MR. BARBER: Are you certain it's not something that could be told from perhaps the metadata from the video file?
HEIDI GALORE: There was no metadata produced for this production. It wasn't requested, so it wasn't produced.
MR. BARBER: So, if someone were to right click on this video file, and, you know, where it has various metadata that pops up on the screen, would we see immediate created date?
HEIDI GALORE: I don't know. I wouldn't know.
MR. BARBER: Well, let's see if we would.
MR. BARBER: Court's indulgence for a moment.
(Break in proceedings.)
MR. BARBER: Can you see on the screen the metadata for this file?
HEIDI GALORE: Yes.
MR. BARBER: And does it say June 7, 2021, at 7:38?
HEIDI GALORE: Yes.
MR. BARBER: So, this was shot at basically a minute before it was uploaded. Is that correct?
HEIDI GALORE: It appears so, yeah.
MR. BARBER: And I'm sorry if that seems picky, but in this case, you know, every minute and every second can matter. Does Snapchat keep a list of, and I might be getting the terminology wrong, friends or contacts that Paul would have had on Snapchat?
HEIDI GALORE: Yes.
MR. BARBER: Was that list produced?
HEIDI GALORE: No.
MR. BARBER: And why was that list not produced?
HEIDI GALORE: It wasn't requested in this case.
MR. BARBER: And you mentioned earlier geolocation data. Was that produced?
HEIDI GALORE: No, not in this case.
MR. BARBER: And why was that not produced?
HEIDI GALORE: I don't believe it was requested.
MR. BARBER: Is it possible for -- I mean, I don't know how it works -- for some or all of Paul's friends to have access to his location through the app?
HEIDI GALORE: Yes. If his settings were -- yeah, if he made his settings visible, his geolocation visible to his friends, yes.
MR. BARBER: And would that information about whether that was -- that setting was in place to allow that, is that something that Snapchat would have had available to produce?
HEIDI GALORE: I'm not sure if the -- if -- I'm not sure about that, if you can see that it's actually turned on or off.
MR. BARBER: And was that requested?
HEIDI GALORE: No.
MR. BARBER: No further questions, Your Honor.
JUDGE NEWMAN: By the State?
MR. CONRAD: Nothing else from the State, Your Honor.
JUDGE NEWMAN: Thank you. You may step down.
(The witness exited the stand.)
JUDGE NEWMAN: Yes, sir?