5.Statements Admissibility Ruling and Proffer
81 linesSHAWN GRAHAM: Your Honor, may we approach?
THE COURT: Yeah. (Whereupon, a bench conference was held in the presence of the jury but out of the hearing of the jury.)
THE COURT: I need to put something on the record. So I'm going to send you all to the jury room and have you right back in here.
(Where upon the jury was excused from the courtroom.)
THE COURT: All right. Mr. Graham.
SHAWN GRAHAM: Your Honor, previously, we have had hearings about what was admissible or not, it is my understanding regarding any statements other than what we've discussed.
THE COURT: I thought that was my ruling, too, and, Mr. Young, what's your position?
BOYD YOUNG: That, ultimately, voluntariness is a determination for the jury and I'm not asking anything about any of the statements. They've gotten in the statements they want to. My question for Lieutenant Johnson is, was he made aware that Mr. Jones had invoked on the 6th and earlier that day had said that he wanted a lawyer. And, of course, there was a lot of testimony about he said he was taking the Fifth when he walked in there with his father, which was reflected in some notes but not others. And this is a subject that was brought up by the State during their direct.
RICK HUBBARD: I don't know what he's talking about. I know when we had that hearing, Your Honor --
THE COURT: All right. Wait a minute. Let's put Mr. Graham to work on this so we don't get two lawyers and two lawyers.
RICK HUBBARD: Well, I think he was referring to one of my witnesses.
THE COURT: I thought, if that was -- again, the statement you're talking about, the one where his father walked in, he was part of that interview.
BOYD YOUNG: He was present for it. Yes, sir. They brought up that he was going to get -- hired -- they were going to hire a lawyer. They brought it up.
THE COURT: It's part of the statement.
BOYD YOUNG: What, no, it's not part of the statement. It's part of something that he overheard Tim's father telling him, we'll get you a lawyer. And they didn't need to bring it out, but they did and I've got to deal with it.
THE COURT: By talking about a statement which was off-limits. I thought there was, you made a comment just now that there was conversation before the interview on the 8th, no, the 7th. The 7th was the interview without the South Carolina people. The interview before the 7th, which walked in about getting a lawyer. You just said that. So how was he without knowledge of Mr. Jones' request, maybe, that he wanted a lawyer?
BOYD YOUNG: How was he -- he was not told that Mr. Jones had invoked on the 6th and had invoked earlier that day on the 7th.
THE COURT: Which he heard. He heard that or did he? You just said he did.
BOYD YOUNG: I don't think that he was told. I'm thinking he was intentionally not told.
THE COURT: All right. Now, since that's another witness I'm going to hear from Solicitor Hubbard on that, because we are switching witnesses because kind of a combination of several different people in the interview.
RICK HUBBARD: Your Honor will remember, Marty Patterson's the one that testified at the initial hearing on this issue.
THE COURT: Yes.
RICK HUBBARD: Which we didn't go into it at all yesterday. Now, here's how he described it at that time in the hearing. That he was the one standing near Mr. Jones, Sr. and the Defendant, Tim Jones. He heard Tim Jones talk about the day before, something about the Fifth, he had asserted the Fifth, but he did not assert it that day on the 7th. He did not speak about it at all to law enforcement, there was nothing hidden, they went right into it. And then the Miranda was given by this MBI agent. And you heard the whole thing about how he took the sheet --
THE COURT: Yeah. Yeah. I remember that.
RICK HUBBARD: And read the whole thing.
THE COURT: I remember.
RICK HUBBARD: And so, yesterday, when Marty Patterson was on the stand on cross, they started going into that statement on the 6th.
THE COURT: I noticed that.
RICK HUBBARD: And I left it alone because, as far as that jury knows, that was a discussion on the side of the road and in booking.
THE COURT: Right.
RICK HUBBARD: We left it. Your Honor, they are digging to try to get in there. They're trying to get in there and, Your Honor, it's a poison pill in this case --
THE COURT: It is.
RICK HUBBARD: And that was way out of line.
THE COURT: Yeah.
BOYD YOUNG: The poison pill in this case is not telling the jury when they bring up the lawyer issue. And not telling the jury that he had invoked when, ultimately, the jury has to make the determination as to the voluntariness of the statement, which they can't do with partial information that was brought out through the State.
THE COURT: I think it was brought out by the Defense. You all want that by virtue of questioning the Undersheriff. The State tried to avoid it. What do you all want to do? My suggestion is, the question becomes did you have any knowledge that Mr. Jones invoked the Fifth prior to you interviewing him.
BOYD YOUNG: That was the question.
RICK HUBBARD: Your Honor --
THE COURT: No, that wasn't the question.
RICK HUBBARD: Here's what I would like. There was an objection made. I'd like Your Honor to say, sustained, disregard. Counsel, move on. That's what I would like. Anything else or continuing to wallow in something you've already ruled on and that we haven't brought up, but I'd like the objection sustained. Counsel, move on. Jury, disregard.
THE COURT: What do you want?
BOYD YOUNG: I want to be allowed to ask the question.
THE COURT: I want to know your question because your questions go back and say in some previous interview you weren't told -- because he wasn't there. So the question is, was he aware.
BOYD YOUNG: Were you aware that he had previously invoked his rights?
RICK HUBBARD: And I think that's absolutely out of bounds because you ruled on that issue and that whole statement was taken out. So it is not in play right now. They've re-approached him, properly so, 22 hours later and Mirandized him. This witness speaks to that statement.
BOYD YOUNG: Your Honor, I'd just add that the State elicited testimony from Lieutenant Johnson that all of these statements were free and voluntary. Everything was free and voluntary. He did everything voluntarily when Lieutenant Johnson didn't know that he had previously invoked. And that would make a difference to the jury in determining the voluntariness of the statement and the tactic of bringing Mr. Jones' father into the interview.
RICK HUBBARD: Your Honor ruled on that.
THE COURT: I don't believe the State opened the door. I don't believe they did. I think, based from our pretrial hearings back in March, that that's out of bounds. So I'm not going to allow you to ask that question.
BOYD YOUNG: May I proffer it?
THE COURT: You should. PROFFER TESTIMONY
By Mr. Young:
BOYD YOUNG: Mr. Graham asked you if Tim ever said he didn't want to talk or if he said he wanted a lawyer. You said Tim never said these things. Did anyone at Smith County tell you that he'd invoked his Fifth Amendment constitutional rights several times the night before inside the Smith County jail and that those invocations were ignored by law enforcement?
ERIC JOHNSON: Is that a question I'm to answer, Your Honor?
THE COURT: Yes.
ERIC JOHNSON: No. I had no prior knowledge of any discussion, interview or -- with Mr. Jones, Jr. I had no prior knowledge of anything like that. Whether that occurred -- did or did not occur, I cannot advise.
BOYD YOUNG: And you didn't know or weren't aware that he had invoked earlier that day when asked to give hair, DNA and blood?
ERIC JOHNSON: I did not. I was not privy to that information either.
BOYD YOUNG: That would be the extent of my proffer, Your Honor.
THE COURT: Okay. Fair enough.
BOYD YOUNG: Do I need to object, I don't know how to object to the objection or--
THE COURT: All right. We'll be at ease a couple minutes. I've got to, I'm going to step off. Be back in a minute.
ERIC JOHNSON: May I step down, Your Honor?
THE COURT: You may.
(Whereupon, a short break was taken.)
THE COURT: Solicitor, let me ask you a question. The second question to the Detective was, were you advised that he'd refused to give hair samples and saliva samples earlier that day. I think that's a fair question. That wasn't part of the night before.
RICK HUBBARD: That was fair, but a search warrant was obtained.
THE COURT: Right.
RICK HUBBARD: He didn't invoke. So if it's anything about, were you aware that he invoked his rights, no. He just said he refused and they got a search warrant.
THE COURT: I think that's fair and I think that he's allowed to ask that question.
RICK HUBBARD: Yes, sir. As long as it's not invoking his, you know, right to remain silent and all that again. Somehow -- that implication.
THE COURT: I agree.
BOYD YOUNG: Just to complete the record, our position would be that the State opened the door when they had Lieutenant Johnson come off the stand and go into great detail about the circumstances of the Miranda waiver on September the 7th without -- our argument at the previous hearing. And I'm not trying to reargue the case, was that Mr. Jones consistently invoked and eventually, through a tactic of putting his father in his room, his -- all of his invocations were ignored and his will was overcome by the presence of his father. Those arguments the Court has heard and ruled on and I'm not trying to reargue them, but I think the State opened the door to the jury learning about that by going through how voluntary and cooperative Mr. Jones was without telling them what had happened before.
THE COURT: I don't believe that's opening the door, but you've made your record.
BOYD YOUNG: Thank you.
THE COURT: Okay. So you can ask about refusing to give hair samples and search warrants obtained --
BOYD YOUNG: Okay.
THE COURT: -- and whether he knew that.
BOYD YOUNG: Yes, sir.
THE COURT: All right. Let's have the jury, please. (Whereupon, the jury came into open court at approximately 5:00 p.m.)
THE COURT: All right. For the record, the objection is sustained. Ask your next, your next question.
CROSS-EXAMINATION By Mr. Young: