12.Recorded-Statement Redaction Rulings
63 linesCASEY SECOR: Your Honor, these are quotes from the interrogation of Mr. Jones after being arrested in Mississippi. They were with Special Agent Mackey and Investigator Creech.
THE COURT: Hold on, Mr. Secor. That printer is going to drive me crazy, it is coming through the loud speaker really good. I told the media that also. The media is going to be able to type and tweet during the trial, that is quiet. If it bothers me or Joy or anybody then I will ask them to stop. I am telling y'all that, I will do the same with y'all. So something, I know y'all have got to get stuff done but if something is bothering or interrupting the presentation I will say, please stop, like this. Y'all are subject to that same rule for the Court. So I just noticed, I hadn't heard that printer before but I could hear it in the loud speaker just then. That is how I am going to manage it and the media seemed to like that also and Joy liked it a lot. That is my main concern, was her. Mr. Secor, back where you were.
CASEY SECOR: Thank you, sir. I guess we should probably make what I handed up as a Court's exhibit just for reference. It is a document, total redactions for statement transcripts. It is obviously a request by the Defense. The things that we would like redacted from the statements. The first one is from recording on page thirteen where the Investigator is speaking with Mr. Jones, he is referencing a conversation that he had with a woman prior to his arrest. And the crux of our argument about that exchange is that the Investigator is, that the information gleamed from the female who referenced is hearsay, without an exception, and in addition it also violates Mr. Jones' right to confrontation, is the information from this female was relayed to law enforcement and testimony on the nature. So we would, base that claim on the Sixth Amendment of the United States Constitution, Fourteen, South Carolina Constitution in Crawford versus Washington, 5401 US 36, 2004. If we can go one at a time.
THE COURT: Okay. Y'all ready to address that? Mr. Graham.
SHAWN GRAHAM: Your Honor, my understanding it is objecting because it is hearsay?
CASEY SECOR: Yes, sir. And confrontation, yes.
SHAWN GRAHAM: It was an interview, he was asked questions that he answered. It is not, his answers are really what is important, I lied, and I lied and I lied to her and told the the kids, talks about the children being deceased. It is facts, otherwise they wouldn't be able to interview anybody and we would never be able to get any taped interviews in. It is not offered for the truth of the matter as far as what day he talked to her on. She is, I believe, is going to testify. So she will be, in fact, isn't that right. She will testify, she will be called at some point. If they want to cross her on the contents and the truth of it they can.
THE COURT: All right. The hearsay that she talked to him, is that going to be challenged as not credible. I mean, because, that is one of those hearsay, it could be but if it is not offered for the truth, it is just offered because it was said.
SHAWN GRAHAM: Judge, this would be similar to, when you got two suspects who are being interviewed and the police have them in different rooms and they go from one and the other and they say, we just talked to your codefendant and he said this. I mean, it doesn't matter if it is true or not.
THE COURT: Right. That is what I am asking Mr. Secor. It is not to prove it, it is offered that it was said.
CASEY SECOR: I understand. We can solve the problem regarding the confrontation issue. This is testimony information, it was relayed to law enforcement and is being utilized by law enforcement for the purposes of eliciting information from Mr. Jones. I understand Mr. Graham's argument but our objection to it still stands on those grounds.
THE COURT: I am going to not suppress that. That seems to me that he is being interviewed, the information is, you talked to someone on the phone, what did you tell them and the response to it. So that is not really the other end of the conversation as being questioned about. So I kind of disagree with you on that.
CASEY SECOR: Yes, sir. If I may, also I should have, before I started this argument on the statement I should have renewed our prior objection to interrogation and statements based on the motions filed and arguments heard before this Court, and also, the State was -- on the roadblock in Mississippi. Thank you.
THE COURT: All right. For all of those issues you are protected and timely.
CASEY SECOR: Thank you, sir. The second request to redaction on the sheet they handed up to the Court, from on page 33. The Investigators made a reference to the remains of the Jones children being a pile of and then that gets cut off and Mr. Jones says, give garbage bags. And the Investigator says, five garbage bags. So it looks like there is just garbage there. Okay. And Mr. Jones says, something that is inaudible. And then dead in there was the end of the quote. We would argue that the admission of that is a violation of Rule 403 as being more prejudicial than probative and therefore creates the danger of unfair prejudiced. Mr. Jones had told the Investigators that they, that the remains of the children were in garbage bags. That is true, that is how they found them. But I think the inference by Investigators that they are just thrown out there like garbage is violating Rule 403.
THE COURT: Ms. Mayes.
SUZANNE MAYES: Yes sir, Your Honor. And that on its face is not prejudicial. It is a fact in the case that each of the children's bodies were put into individual garbage bags. So the fact that he has explained to the officers that the bodies are concealed in garbage bags is an essential fact in the case and it is important and relevant to the State because it goes to criminal responsibility which is now an issue with the insanity defense and also be getting the submission of a guilty but mentally ill verdict. So whenever we have an issue regarding knowledge of guilt and then an attempt to conceal that evidence it is certainly relevant and probative to the issue of criminal responsibility. And that is what it is, Your Honor. He states that he put them in garbage bags and that he then put them off to the side. The fact that they are in garbage bags and he acknowledges that during the course of the interview, it is certainly probative to the State's case.
THE COURT: Come back with your prejudicial argument, Mr. Secor.
CASEY SECOR: Yes, sir. Clearly the evidence that the children's remains were found in black garbage bags is going to come into evidence. That is not what I am asking to suppress. I am asking to suppress that the fact that the investigators says that, infers that, based on the first lines of the statement, you said that they just looked like they were a pile of, and then he ends, Tim says five bags, five garbage bags. And the Investigator infers that Tim is saying that they are, just look like garbage which I don't think was the actual intention of the statement. And under any definition I think that any inference that he is stating either by himself or by, officers suggestion that the children are garbage is highly prejudicial and is not probative of anything. The evidence that they are found, the condition that they are found is going to come in, I can't imagine that in any way it could be kept out.
THE COURT: So you are saying that the inference is, is that, you think it is prejudicial, that the jury could infer that Mr. Jones was considering the kids, "garbage" as opposed to the way I heard it, because I am not on the jury, the way I heard it was, it was an inconspicuous five garbage bags out there that you might not notice, if you rode by you wouldn't know what is in it.
CASEY SECOR: Yes, sir.
THE COURT: Just five garbage bags.
CASEY SECOR: Yes, sir.
THE COURT: That is what I heard but I am not the--
CASEY SECOR: I can understand a person interpreting that way. When I heard it, my first impression was it sounded as though they were being referred to as garbage. And that, I think, certainly I can tell you it is not accurate as to what Mr. Jones thinks or feels but also just a suggestion of it, I think it is prejudicial and that is the basis of my argument.
THE COURT: So 403 straight away. And I think that it is probative, it is certainly prejudicial to some extent but I think the probative value that that is how they were found, I think it comes in in spite of the prejudicial nature of it. I think it is outweighed but it is, I understand your argument very clearly.
CASEY SECOR: Yes, sir. Should I continue?
THE COURT: Yes, sir.
CASEY SECOR: The third one is recording on page 46 through 47. The Investigator states, "Nahthan was an accident but you murdered the other four children." Tim responds, "yes." Investigator says, "Okay. Why did you do that. We talked about this earlier." Your Honor, I would base this objection on South Carolina Rule of Evidence 701 regarding lay opinion and 704, regarding opinion on the ultimate issue. This is an Investigator using the word, murder, to define Mr. Jones' conduct. Therefore it is a lay opinion on ultimate issue and it is also a legal conclusion, an admission, lay opinion on ultimate issue.
THE COURT: Solicitor.
RICK HUBBARD: Yes sir, Your Honor. This is an interview where they are not given legal terms. Let me define what murder is, let me define what accident is because there is a legal definition for that. This is a one on one officer, Tim Jones in a room and based on what Mr. Jones described, he did it with those other four children. The officer goes, so, you are saying that Nahtahn was an accident but you murdered the other children. The importance of that is, Judge, if anybody ever put a question to you, so you murdered somebody. There is not anybody off the street is going to understand the significance of that. They are not going to have a legal definition. They are going to know, I am being asked did I do the ultimate crime. Mr. Jones' response is, yes. The significance of that is, it is the very heart of this case. This is what we are here about. He says, yes, I did that. We are not offering it as a legal definition, no officer is going to sit there and say, like, we did with each Juror. Let me read you a legal definition of what murder is. In fact, the Defense doesn't seem to be upset about there is no legal definition for accident. There is one for that too. But officers aren't going to talk that way. This is just basic knowledge where the Defendant claims one is an accident and his view of what accident is. And then murder and in the most understood term that anyone off the street would understand. You are saying that you committed the really big--
THE COURT: Let me ask you this. Do you, does the State plan on, in your closing saying, well, y'all heard the interview and he said, when you asked and here is the issue, here is the ultimate issue, he said yes and therefore--
RICK HUBBARD: No sir, I don't. The way I would present it to a jury is, you are going to give the law to this jury but we are going to talk about what he says he actually does. I am going to focus, not so much on this, yes, but that he admits this one is different and that it is intentional of what he does. Because the way he says it, if you go back into the transcript, I am going to focus on that. And then his different statements about what he actually says, not just a one word, yes. I am not going to focus on what the officers said or how he captured it, I am not going to do that. I don't think that would help me at all. And frankly, when the officer testifies, if there is an issue they can always put that question to them about why he chose that terminology. I bet that officer is going to say, I could have easily have said, just intentional killing or something like that. It is just common street language is what they were using. There is no legal conclusion in other words, Your Honor.
THE COURT: All right.
RICK HUBBARD: One moment, Your Honor. And also, Your Honor has seen just a snippet cutout but I just want to actually change the whole context of the before and after conversation if you take that out.
THE COURT: Okay.
RICK HUBBARD: Because he is going to revert back to his defenses voices and all of that. So this is the back and forth. That is why I think, if it is just in context I think it is better for both sides to be able to deal with it at that time because Your Honor knows I am not going to stand up and say, you heard him say, he used the word, murder. He didn't.
THE COURT: All right. I am going to do this. I am going to allow and not redact it but I am going to direct and restrict the State from using that question as, he admitted, did you commit the murder or murders, whatever the exact language is, and therefore he admitted it. That will be all based, that will be big problems. Because that is the statutory definition we are looking at. That won't be allowed to be argued by the State as that question and response off limits as to proof, the definition of murder, I can't do that, that is, wouldn't be fair. The whole context, the whole interview is fair game but that question cannot be singled out and used by the State.
CASEY SECOR: The next one, Your Honor, this is a recording, page 22, the Investigator states, "You know it was, you know it was wrong and you know you shouldn't have done it." Again, that would be a lay opinion on the ultimate issue. The ultimate issue there being that Mr. Jones was not, not guilty by reason of insanity meaning inference by the officer that Tim did, in fact, know the difference between moral or legal or wrong, legal wrong. So my objection would be based on South Carolina Rule of Evidence 701 and 704.
RICK HUBBARD: Your Honor, again, this is in response, once these officers are clearing up this issue of voices. And they have to go into the issue, do you know something is wrong. It is not a legal conclusion, it is what they have to ask. And it is a follow-up, it is hard for Your Honor, there is one snippet here but they have to ask him, did you know this was wrong. And then follow-up, so you knew it was wrong. It goes directly--
THE COURT: How did he answer, how did he answer that?
RICK HUBBARD: He said, I can't fix it. I mean, that was his answer to what he did. That goes right to our countering their Defense. Those officers knew from that night that when we came here today, all of these years later, this was going to be the issue so they were trying to pin him down on that. And that is a follow-up.
CASEY SECOR: Your Honor, they utilized tools to determine Tim's mental state, those questions that SLED provided to Lexington County. They brought down there and they asked him questions. But those questions didn't infer an opinion on the ultimate issue. Those were questions that they asked Mr. Jones, they were hoping to use those to counter a defense of not guilty by reason of insanity but those were just questions. This is a statement by the Investigator saying, you know it was wrong and you know you shouldn't have done it. It is a statement by him, Mr. Jones' response to it, based on my argument, is irrelevant. It is still an opinion by a lay person on an ultimate issue that he was not insane.
RICK HUBBARD: Your Honor, it is a question, it is not a statement where the officer says, this officer is not making a conclusion, it is a question, an affirmative question which is what he is suppose to do.
THE COURT: That is part of the interview, that is back and forth, that is, I think that comes in.
CASEY SECOR: Yes, sir. The next one is page 24 where the Investigator states, "Sounds like you were just very angry at him." That is a reference to Nahthan. And my objection or our objection rather to it, is that it is a lay opinion, again, pursuant to South Carolina Rules of Evidence 701. An ultimate issue which would violate Rule 704 because this is, this is an attempt by law enforcement to establish malice of the death of Nahtahn.
RICK HUBBARD: This is, make sure it is page 24?
THE COURT: Yes.
RICK HUBBARD: Your Honor, again, it is just like the one before that, it is a snippet out of context where an officer isn't just saying, it sounds like you are angry. It is based on what Mr. Jones has already told about his interaction with his son, Nahthan. So if they, am I correct, it sounds like you are angry at him. That is how it is couched. This is just what is going on in an interview room.
THE COURT: It sounds like, to me repeat the question back or make sure I understand what you are saying, thus and so.
RICK HUBBARD: Yes, sir.
THE COURT: Let me get it straight, thus and so. It is restating what has been stated. That sounds fair to me. I don't believe that is a violation of 704.
CASEY SECOR: Yes, sir. The last one is page 23 and the Investigator states, they are discussing the condition of Mr. Jones' vehicle, when the children's remains were still in the vehicle. And the Investigator says, "What's going on in that car since they have been sitting for so long." On the sheet that I passed up, I think that the Investigator says a couple of more things. And then Tim does say, "It stinks like shit." Forgive my language. But we would argue that that should be redacted to the statement pursuant to Rule 403 as being more prejudicial than probative and therefore it creates a danger of unfair prejudiced. I understand that law enforcement did not suggest that terminology to him but it is, I think, very upsetting for a person to hear, a person to say that their, the remains of their children stinks like shit. When I heard it it made me feel angry, anger towards Tim. But I understand, you know, there were a lot of things going on with him at that time. So I try to rein in the way that I respond to that. But I think a person would hear that could get very upset considering they are going to know or they are going to believe that at a bare minimum he straggled four of his children. And I just, I do not see the benefit to that, letting the jury hear him refer to the smell of the children's bodies in that way. And I just, I think that there is nothing probative about it other than to just create anger in the jurors and will increase the likelihood that they will respond with passion and prejudice which is something that they are not familiar with. Thank you.
THE COURT: Solicitor.
RICK HUBBARD: Your Honor, this goes, frankly to the heart of malice. Everything he talks about with his kids, it is, he will make these comments and you are like, my gosh. This man, we are talking about his kids here. It shows who he is. The question actually was from the Investigator, Okay, so they are in the vehicle the whole time. What kind of is happening in the vehicle as far as, how does it smell in there. And he says, it stinks like shit. But that is who Mr. Jones is, throughout the whole statement. On one hand he will talk about, you know, oh my kids. But on the other hand, he can make these comments that are just, are you kidding me. And we need that. And it is going to come right down to, is it an act of malice or is he insane. It is what it is. And if we take something like that and just go with it and build an entire case on one statement I am going to pay for that by the jury. But in the context what was just made, it certainly shows, here is a man, he is just talking about killing his five kids. And he can still speak in terms like that. It shows exactly who we are presenting Mr. Jones to be, it goes to malice. It is absolutely probative.
THE COURT: I don't, I agree with you it is prejudicial but I think it is probative and it is a decision for probative outweighing the prejudicial effect. I think, I find that that would be probative because it is in the whole line of questions and answers of the interview. So it will stay in.
CASEY SECOR: I respectfully request you note my exceptions to the Court's rulings on these issues.
THE COURT: Sure. You want to make, Joy, have you made this a Court's exhibit?
COURT REPORTER: I have not yet.
THE COURT: Okay. I want, we will make it a Court's exhibit, whatever the next one is.
COURT REPORTER: That will be 74.
THE COURT: 74. (Whereupon, Court's Exhibit 74 was marked for identification only.)
THE COURT: All right. Anything else?