2.Hearing on Voluntariness Questioning
55 linesRICK HUBBARD: Your Honor, may we approach? (Whereupon, a bench conference was held in the presence of the jury but out of the hearing of the jury.)
THE COURT: I got to put something on the record. I'm going to put you all in the jury room for a little bit. Don't talk about the case.
(Whereupon, the jury was excused from open court.)
THE COURT: All right. Let's go back to where we were. Solicitor said he had a matter of law regarding the question proposed by the Defense. Solicitor, I'm going to hear from you first and then I'm going to see what Mr. Secor wishes to proffer.
RICK HUBBARD: Yes, sir. Your Honor, I objected because for the past two days, two different witnesses, the Defense has tried to open the door of re-litigating what Your Honor has already ruled on back in March about the voluntariness of the statement given on September 7th, 2014. And we met in March and we discussed the statement or interview, on the 6th. That interview was out. All the parties understand it's out. Your Honor ruled it wouldn't be coming in. The State hasn't even offered. What they want to do is go back and try to say the conversation that happened on the 6th, when Mr. Jones said, I assert the Fifth, taints the one on the 7th which Your Honor ruled on because we went through that ad nauseam back in March, Your Honor ruled on it. They try to say it tainted every other statement made out to that. Your Honor ruled on it after hearing voluminous arguments. We came into this courtroom and you gave the ruling. Your Honor reiterated it yesterday. And I have a witness up, there is an interview. I will always start, did you have permission from this man to interview him. Did you give Miranda, or Miranda given. I have got to do that because the jury, when they evaluate the statement, as Your Honor knows, is the September 7th statement. They have to evaluate whether it was free and voluntary. Your Honor will charge them that. But it in no way opens up your ruling as to the 6th.
THE COURT: I agree with you. Let me see what he wants to say.
CASEY SECOR: Your Honor, my position was, is that it absolutely opens the door to Defense questioning the voluntariness of it. That's exactly what it does. The record will be clear that on both of these witnesses, Sheriff Crumpton and Agent Johnson, the State unilaterally of their own volition brought up the issue of voluntariness. We were not going to bring up the issues of voluntariness because it was our understanding that the Judge had ruled on that and, therefore, it became a non-issue for this trial. They decided to bring it up. And they think that by presenting it as voluntary on the 7th, without there being information about the preceding 24 hours is legitimate and it's completely not legitimate. If I water board a boy for 24 hours and then he confessed to rob and signed a waiver that wouldn't make it--
THE COURT: Don't give me, that's not part of your argument.
CASEY SECOR: No, it is very much part of --
THE COURT: No, it's not.
CASEY SECOR: It is, because --
THE COURT: Don't give me another example about something that's not relevant to the case, please.
CASEY SECOR: The comparison I'm making is that his will was overborn by his invocations of his Fifth Amendment rights on the 6th being repeatedly ignored, told that he was going to stay in that jail until he told law enforcement what they wanted to know. And then the next day when they, when they asked him if he would consent to samples of blood and hair and DNA, he says no. He has shown that that refusal is not going to make any difference because he's transported to a hospital, the samples are taken --
THE COURT: And you have got the right to ask that, and it's been asked and presented to the jury. I don't understand why the State can't say, brought him into the room, his dad was there, got the waiver, asked the questions, this is how he appeared and how he acted. You've got all that. I don't see what door you're opening, you are claiming they're opening. I don't see it. You want to open the door because it's convenient and advantageous, but that's against my ruling. I don't understand.
CASEY SECOR: But your ruling was that the statements were voluntary.
THE COURT: Correct.
CASEY SECOR: But they're --
THE COURT: So if the State can't say, did you get a waiver, y'all are going to say, I didn't get a waiver. The jury didn't see the waiver. So how do they know if it was voluntary or not when they have got to evaluate that.
CASEY SECOR: Well, they have to evaluate that. They have to evaluate it in the context of the entire case, not just that one moment in time.
THE COURT: I think they're doing more than that one moment in time, because you got the request for blood samples and saliva samples. He refused. You've got that. Come back in, Johnson gives him a waiver form, he describes the behavior, Mr. Jones took the waiver form and read it. Y'all have got all of that.
CASEY SECOR: There's also a video recording of repeated invocations by Mr. Jones being --
THE COURT: And that's off limits because you all wanted it off limits.
CASEY SECOR: Well, no, sir. The State has made it relevant now.
THE COURT: No, they have not.
CASEY SECOR: Well, respectfully I disagree.
THE COURT: I respectfully am sticking by my ruling.
CASEY SECOR: Yes, sir. I understand.
THE COURT: I want you all to stay away from that.
CASEY SECOR: I understand. But correct me if I'm wrong, but my understanding is that if evidence is suppressed as a consequence of a Constitutional violation, that does not prohibit the Defense from bringing it up if it deems it necessary.
THE COURT: No, that's, you're saying, I think you're saying we will do it anyway whether you like it or not, Judge. That's what it sounds you just said to me. And I respectfully hope you're not saying that.
CASEY SECOR: No. And I --
THE COURT: That's what it sounded like.
CASEY SECOR: Well, I did not, I didn't mean to be, I didn't mean to be disrespectful at all. I'm saying --
THE COURT: It sounded like it.
CASEY SECOR: I literally, I literally, my literal understanding is that if evidence is suppressed it is a consequence of a Constitutional violation. My understanding is that doesn't prohibit the Defense from bringing it up but it prohibits the State from bringing it up because that's the penalty for Constitutional violation.
THE COURT: All right. There was no Constitutional violation if Mr. Jones says I'm not talking. They stopped. That's not in front of the jury. That's not a violation. That's a request, please give me my Constitutional rights which was abided by the State.
CASEY SECOR: But then they reinitiated contact the next day--
THE COURT: Nothing against the rules about reinitiating.
CASEY SECOR: I'm sorry?
THE COURT: There's no reason the State can't reinitiate.
CASEY SECOR: Well, respectfully, Your Honor, from our argument on the Denno issue there is if they do not scrupulously honor invocation of rights, they do not have the right to reinitiate contact with the suspect.
THE COURT: With the circumstance of five missing kids and you're saying the State didn't have the responsibility to go back and talk to him again?
CASEY SECOR: They had the responsibility to preserve his Constitutional rights.
THE COURT: All right. All right. We've been over this. The interview of the 9th is off limits. The State did not open the door, in my opinion. I understand the legal issue. Did not open the door by revisiting the waiver before talking to him 20 or 22 hours later depending on whose testimony you believe. Nearly a full day later, the waiver is given, he read it. He refused to give the blood samples. And so, you get that. I don't understand why you keep wanting to go outside of that, other than it would be more advantageous to you.
CASEY SECOR: Well, to be honest, I don't, I don't want to go into it. The State has--
THE COURT: Well, then don't. I grant your wish.
CASEY SECOR: The State has forced me to do it.
THE COURT: No, they've not. They've not done that. I don't want, I don't want to discuss this anymore, really.
CASEY SECOR: I understand, Your Honor.
THE COURT: I think you've, I think you've made a full record of you think you should be able to go into it. You've made a nice record with Lieutenant Johnson yesterday about it. And you want to further proffer with this Sheriff. If you do get it, I'm ready to move on.
CASEY SECOR: Yes, sir.
THE COURT: You all wasted enough time yesterday with this jury, so we're going to push through it a little bit today.
CASEY SECOR: Yes, sir.
THE COURT: And that's for everybody.
CASEY SECOR: Yes, sir. PROFFER TESTIMONY