13.Evidentiary Hearing on Exhibits 161–165
48 linesSHAWN GRAHAM: Your Honor, the State would offer these into evidence. May we approach?
THE COURT: Yes. (Whereupon, a bench conference was held in the presence of the jury but out of the hearing of the jury.)
THE COURT: I'm trying to get you out of here, she is from out of State. I'd like to get her finished today. You all step in the jury room. I won't have you out there very long. I got to put something on the record and we'll have you back in here. I want her to finish this afternoon. Okay? And I'm mindful of your time too. (Whereupon, the jury was excused from open court for a break.)
THE COURT: Mr. Young, can you verify whether or not there was -- the one you mentioned you thought was inconsistent?
BOYD YOUNG: Coming up right now, Your Honor. I had to go get the paper work off the table from downstairs.
THE COURT: Oh, okay.
ROBERT MADSEN: We have a room.
THE COURT: Okay.
SHAWN GRAHAM: I do have something I want to put in evidence while we are sitting here and they are reviewing it. A Court's exhibit. Just for the Judge to see and for the people on appeal to see it. This will be a Court's exhibit.
THE COURT: I thought we already had that. That is something else?
ROBERT MADSEN: It is different.
THE COURT: I am looking at 84. Why can't the media see that.
SHAWN GRAHAM: This is going to be all of the crime scene photos. (Whereupon, Court's Exhibit 84 was marked for identification only.)
SHAWN GRAHAM: Judge, we are ready if you are.
THE COURT: Okay, come on.
BOYD YOUNG: Your Honor, we had a previous hearing where the State, or the Defense had pretrial objected to any evidence that was gruesome or graphic in nature and those photographs shouldn't be allowed in in any way shape or form. We provided the Court with the notebook, I think it was Court's Exhibit number 55.
THE COURT: 61. I know where it is.
BOYD YOUNG: And the State at that time said that they hadn't elected which photographs they intended to use. We would renew that objection at this point in time. I know that the one picture of the trash bags is in, I don't think the State should be allowed to go any further than that. And at this point in time I would make -- I guess it would be Defense motion number 103 at this point in time which would be the motion to suppress the photographs of any remains and/or descriptions thereof. I would like to make that a Court's exhibit with the other motions. And then as far as --
THE COURT: That's your motion you're making now?
BOYD YOUNG: Yes, sir.
THE COURT: All right. I understand your motion and the State having not done it we just took it as a motion in limine.
BOYD YOUNG: Yes, sir.
THE COURT: And I still can't rule on it because I don't know what they are trying to introduce.
BOYD YOUNG: Yes, sir.
THE COURT: So we're in the same position. Let's go these, 161, 2, 3, 4 and 5, those.
BOYD YOUNG: One of our motions in limine was that Merah was listed as being nude or didn't have any clothes. And we had asked the Court to limit that. And the State was still thinking about what they were going to do with that. Of course, that State's number 162 and -- lists Merah as nude. And State's number 165 lists Nahtahn as nude. We would object and move to keep those out. These are summaries, they shouldn't come in, the witness should just testify.
SHAWN GRAHAM: As he -- as Mr. Jones chose to leave the bodies how he left them, clothed or unclothed were choices that he made. They are things fair for us to comment on. Nobody on our side is making any type of allegation, of any kind of inappropriate sexual, there is no proof of that. We are not going down that road. But he did choose to leave Merah and Nahtahn without clothes. And he did choose to put whatever he put in each one of the bags and it is relevant. And he chose to -- malice on some level for what he did and how he chose to leave the bodies.
THE COURT: These are--
SHAWN GRAHAM: -- it is a summary of her testimony. It is accurate. But, I mean, the other choice is to get this in, pictures. And we don't want to offer pictures. And I don't believe we should and I don't think it's appropriate.
THE COURT: Anything else, Mr. Young?
BOYD YOUNG: Just under 403 it's --
THE COURT: I think 403 analysis is appropriate. And based on my review of these -- I've been handed a copy of the exhibits that were handed up. It's typed testimony -- I mean, the descriptions on there are very direct, straightforward. It's not, there's nothing, very few additives. It describes color, black garbage bags, underwear, that sort of thing. I think the State's allowed to get this. I think it's probative to their case. I don't think the way it's presented here is not prejudicial. It certainly is some prejudice, on a sheet of paper for each body. A description of the observation of this crime scene analysis technician. It's a fair summary of what she observed without going and showing graphic pictures. So I'll allow these.
BOYD YOUNG: Yeah, sure. And I'm not arguing the Court's ruling, but -- and the State's saying they're not going to offer any other pictures. Does that mean they're not going to offer any other pictures at either phase of the trial and they're just going to have written descriptions, or --
THE COURT: I don't know.
BOYD YOUNG: Because if they're allowed to sandbag and save those pictures for their emotional affect at -- if we were to get to a penalty phase, that would be sort of crux of our objection.
THE COURT: Well, I don't know that they're going to offer any pictures or not. And so, your ruling on a motion to suppress them, I'm still holding them until I see the pictures and determine a 403, probative versus prejudicial. So I can't answer that. You can ask them, but I can't.
BOYD YOUNG: I understand. Can I make this a Court's Exhibit, number 103. It is the memorandum that goes with out motion--
THE COURT: It's in the Court's file, we will have a copy of that.
BOYD YOUNG: It wasn't in the binder that we put in with all of the other ones.
THE COURT: It wasn't?
BOYD YOUNG: But I can just add it to that.
THE COURT: Sure. Add it to the binder. You said it on the record, so certainly it's preserved. We'll add to the binder all the motions you all have made. It will be part of, part and parcel of that. So it's going to be added to the binder of all the motions filed by the Defense, because that's exactly what it is. It is a part and parcel of that. The binder with all the motions that have been filed and that one was inadvertently left out. All right. Are we ready to bring the jury back in?
SHAWN GRAHAM: Yes, sir.
THE COURT: All right. Bring them in. (Whereupon, the jury came into open court at approximately 5:00.)
THE COURT: All right. Continue on, Mr. Graham.
SHAWN GRAHAM: The State would offer 161 through 165 into evidence.
THE COURT: All right. Based upon the objections of the Defense, the Court will accept them and they're in evidence.
SHAWN GRAHAM: Thank you, Your Honor. (Whereupon, State's Exhibit numbers 161 through 165 were admitted into evidence.)