10.Evidence-Scope and Redaction Hearing
72 linesTHE COURT: Thank you. Are y'all ready to go on the motions? I think I have two. I am guessing we have two.
BOYD YOUNG: Yes, sir.
THE COURT: We want to deal with that 404 issue first, depending on whose motion it is. The State's position that it is in response to the Defense motion. So, Mr. Madsen, are you handling that, Mr. Madsen?
ROBERT MADSEN: Yes, sir.
THE COURT: Let's hear from you first and then I will hear back from the State. I believe it is your motion but if it is not I will still hear both sides.
ROBERT MADSEN: Judge, they filed a motion for, at least a pleading that indicates notice of evidence or prior wrongs, crimes or bad acts. The motion, the notice indicates that during the guilt phase of the trial or any sentencing proceeding conducted that the State will present evidence as to the Defendant's adult and juvenile character, characteristics, mentality, intelligence, background and prior and subsequent adult and juvenile crimes, unlawful acts, crimes of violence, bodily harm including acts of domestic violence and threats of domestic violence, sentences and punishments, parole, probation and other unlawful acts and conducts prior and subsequent adult and juvenile violation of laws, rules, regulations, ordinances and fractions prior and subsequent adult and juvenile crimes, criminal records, punishment--
THE COURT: Is that the caption or is that--
ROBERT MADSEN: -- that in it. And I guess my point is this and I am sorry for reading so fast. My point is this, it doesn't tell us, if they plan on introducing something in the first phase of the trial or the second phase of the trial, Your Honor is going to have to rule on the appropriateness of it. We made a motion to basically, for it to be more specific so we know what we are talking about because obviously if they get to a point they put something in or try to put something in and it is not beyond clear and convincing we have got a problem. And as Your Honor knows, we have got 50,000 pages of discovery and this just basically says something in there. And so that was our motion. Additionally, it talks about propensity. I would hope, even though it is captioned that this is first phase and second phase, clearly under 404(b) propensity evidence, it is just, doesn't fall under there. And so that was kind of our motion to make it specific, what specific things or actions are they talking about because until we know that the Court doesn't have the ability to rule.
THE COURT: All right. Ms. Mayes.
SUZANNE MAYES: Yes sir, Your Honor. This is Defense motion 25. If I may approach I am going to go ahead and pass it up to the Court at this time. Based specifically alleged or requested notice for any prior bad acts or prior wrongs, pursuant to South Carolina Rules of Evidence, 401, 402, 403 and 404. And so we are not talking about just 404(b) evidence, Your Honor, it would be any evidence of a prior wrong. This is the State's response and I will note that in their motion, 25, they requested notice within 30 days of trial. In response to that, Your Honor, the State filed this notice.
ROBERT MADSEN: Can I see that.
SUZANNE MAYES: Yes, we can get you a copy of that.
ROBERT MADSEN: Let me just make sure we are talking about the same thing.
SUZANNE MAYES: The State's notice was filed March 29th of 2019.
ROBERT MADSEN: Okay. I just wanted to make sure.
THE COURT: It is the same one, Mr. Madsen?
ROBERT MADSEN: Yes, sir.
THE COURT: Okay.
SUZANNE MAYES: So, Your Honor, our response was to their original motion. This is not a motion for admission of Lyle evidence, I believe as it was referred to earlier. This is a motion in response to their request pursuant to Rules of Evidence 401, 402, 403 and 404. That would include anything that would potentially be a prior wrong. So in response to that, Your Honor, under that recognition we did provide them with multiple witnesses, their names and I believe the next day additional witnesses as well and made references to anything that could potentially be a prior wrong including the sentencing phase. Well, we are way too premature at this point to be dealing with character evidence in the sentencing phase.
THE COURT: They understand that, it was the guilt or innocence side that they were concerned.
SUZANNE MAYES: So looking solely at the guilt phase, Your Honor, what we foresee at this time is evidence of the drug use. And Your Honor has heard much of the testimony already that deals with the seisure of drugs on the night of his arrest, September 6th, 2014. Beyond that, Your Honor, there is going to be evidence dating back to May of 2014 that he was purchasing the same type of drugs, street name being Spice but containing the ingredients, AB Pinaca. And that is going to relate to testimony that is going to be offered by the State in response to the NGRI defense. And specifically, they are alleging all of these behaviors which may, according to their presentation, relate to evidence of insanity or mental illness. The State's position in response is that anything going back to May, which is potentially related to his use of this drug, AB Pinaco, is now relevant in response to their case.
So, Your Honor, it then becomes res gestae and the State versus McGee I will point there, I will go ahead and pass up a copy of that as well. In State versus McGee, Your Honor, 408 SC 278, 2014, recent case which really reinforce the importance of res gestae testimony when it is relevant to a matter in controversy. And here the evidence of the Spice use would be a integral part of the crime for which he is charged and is needed to aid the fact finder in understanding the context of that crime and specifically the insanity defense that is alleged. Now, with all of that said there were references throughout these recorded audiotapes to his drug use. We did not receive a request from the Defense to redact any of those portions. So based on that we are operating with the understanding that they are not objecting to that but we just want the record to be clear regarding the State's position.
That is what we foresee at this stage in the trial, Your Honor, regarding any type of prior bad acts, prior wrong, anything that might be considered character evidence in the guilt phase. Now, we also propose redacting from those confessions, statements, however you want to term them, the references to a DSS investigation. Ordinarily an open or prior DSS investigation would not be admissible in the State's case-in-chief and certainly not in the guilt phase. But, again, they have not requested those portions be redacted. Most likely it is because their experts have made numerous references to that DSS investigation and we expect that to be offered during their testimony. But we just want the record to be clear that if they choose to leave those portions in the statements that that is a strategic decision that they are making because otherwise, Your Honor, those portions would need to be redacted. So that is a little bit of a separate issue but I wanted to go ahead and address it now since it does relate to evidence of prior wrongs during the course of the State's case-in-chief in the guilt phase.
THE COURT: Okay, Mr. Madsen, comment on the, it seems Ms. Mayes is representing to the Court that the State intends, wishes to go into the use of the Spice.
ROBERT MADSEN: Okay with that.
THE COURT: Okay with that. And all the way to May, prior to the September date. You have received notice of that and that is what they intend to use. The other acts could come in in the sentencing side but not in the--
ROBERT MADSEN: And as Your Honor can see what our concern was.
THE COURT: Oh, yeah.
ROBERT MADSEN: And I guess our request was to make more specific.
THE COURT: That behavior for your res gestae, Ms. Mayes, is that right?
SUZANNE MAYES: Yes sir, Your Honor.
THE COURT: Fair enough. So y'all understand that.
ROBERT MADSEN: We are fine with that.
THE COURT: All right, what about the references to the statement to the DSS investigation or whatever opened or closed. Because I think it is kind of unclear, there may be one open and close and the other one open and close. But there was several DSS communications on and off.
ROBERT MADSEN: I am going to let Mr. Young address it since it is the statements.
BOYD YOUNG: Your Honor, the DSS allegations are coming out, if not through the State, it will be coming out through the Defense as part of our--
THE COURT: So the statements--
BOYD YOUNG: --in the insanity case. I don't care if they come out on the State's case.
THE COURT: All right, fair enough to you.
BOYD YOUNG: There were a number of specific allegations alleged in a variety of reports. The first DSS report starts off with a neighbor saying that Tim had threatened to shoot his dog. Now, I don't know if the State intends to offer that. That is what we were asking, does the State intend to offer that statement or they intend to say, DSS was called and got involved based on the family situation.
THE COURT: Have y'all discussed that?
SUZANNE MAYES: I can clarify that to a certain extent, Your Honor. Because we are so cautious about any testimony regarding DSS in the guilt phase, it is just a strategic decision on their part to leave in the references in his recorded statement of the DSS investigation. We will do that as long as they are on the record saying that they want it in. But that would be the extent of it. Now, once that door is open perhaps their experts or someone else, if the facts of the DSS investigation come into play and that door is open the State may then potentially respond or clarify somehow but we are not offering that evidence beyond what is in the confession case-in-chief unless or until the door is open wider.
THE COURT: Is that responsive to your concern?
BOYD YOUNG: Yes, sir.
THE COURT: Okay. I understand her, their posture and I think that is good to understand that.
BOYD YOUNG: There are a number of references to Mr. Jones' prior criminal record, the fact that he has been in prison before. In these statements those are coming out as part of our case for insanity. However, I do think it needs to be clarified that some of the charges that he plead guilty to, I don't know how much detail they intend to go into it, we don't intend to go into any great detail, there is some charges he plead guilty to, he got sentenced, this is what happened, there were mental health evaluations, there were other things that happened as a result of that sentence which is where we intend to focus. One of those things is that he was charged with burglary which was, which in South Carolina would consider breaking and entering in a motor vehicle as opposed to a burglary because it was going into in an open car in a driveway and it was titled a burglary. In that statement, would be in this statement so we just need to be careful with our language. in South Carolina it needs to be referred to as what it would be inside, if they are intending to get into that level.
THE COURT: Ms. Mayes.
SUZANNE MAYES: Yes sir, Your Honor. The only statement that I am aware of that is an issue would be the one in the statements that was recorded September 8th, 2014 and that is the statement to FBI Agent Mackey and the Sheriffs Department Investigator Creech. That is on page 77, that is line 25. Mr. Jones makes the statement, I have done time before. And one of the Investigators responds back, okay. We would redact that entire line and the response. Now with that said, there is nothing in the State's case-in-chief in guilt phase that we would offer regarding his record whatsoever. So I am not sure what Mr. Young was referencing.
THE COURT: Okay. Anything else need to be redacted first of all?
BOYD YOUNG: No, sir.
THE COURT: Okay. And then they are not going to use in their case-in-chief that you referred to.
BOYD YOUNG: Yes, sir.
THE COURT: That is clear.
BOYD YOUNG: Yes, sir.
THE COURT: But the sentencing side may be a different ballgame, we won't worry about that now.
BOYD YOUNG: Yes, sir.
THE COURT: Okay, good.
BOYD YOUNG: There was a police report taken in Lexington during the time of separation about threats, the threats about Amber Jones' neck. There is a statement that she gave to law enforcement, I don't know what the State intends, if anything, to do with that.
THE COURT: Is she subpoenaed by either side?
BOYD YOUNG: She is subpoenaed by us.
THE COURT: Y'all plan on using Mr. Jones?
SUZANNE MAYES: Yes sir, Your Honor. But, again, we have already disclosed to the Court the extent of anything that would be a considered a prior wrong and it is going to relate to drug use. In the State's case-in-chief, in the guilt phase we would not get into any prior threat that he has made against her. Now, I can't control what might happen on cross-examination but we are not eliciting that.
THE COURT: I think that, I am clear that she is not predictable in her responses. They are not going to ask her a question and if she responds otherwise we will deal with it.
BOYD YOUNG: Yes, sir.
THE COURT: Okay. Fair enough.
BOYD YOUNG: There are a number of allegations about abuse against Mr. Jones from both school people, at the school, school personnel, school nurse, school teachers, school counselors.
THE COURT: The mandatory reporters or whatever?
BOYD YOUNG: Yes, sir.
THE COURT: All right.
BOYD YOUNG: And some of the babysitters, some of these reported to DSS, some of them weren't and some were reported by Ms. Jones. So I don't know what, if any, extent the State intends to get into those.
THE COURT: All right. What about that, Ms. Mayes?
SUZANNE MAYES: Yes sir, Your Honor. Again, guilt phase, case-in-chief, we have already addressed that. If their experts open the door to the DSS investigations we may then respond or clarify. But we just can't predict that before it happens and Your Honor would be made aware.
THE COURT: They are not going into it unless it is open. Fair enough.
BOYD YOUNG: I think that is it for the 404(b) and then we have some other redaction request.