13.Out-of-Jury Hearing on Witness's Emotional Testimony
76 lines(Whereupon, the witness is crying.)
THE COURT: Let's take a break.
AMBER KYZER: Oh, God. Oh, my God. My babies. My babies. Oh, God. Oh, God. Oh, God. I'm so sorry. Oh, God. Merah. Oh, God.
(Whereupon, the jury was excused from the courtroom.)
AMBER KYZER: I can't breath. My babies, my babies, my babies, my babies, my babies. I miss my babies. I want my babies. Oh, God. Oh, God. I'm so sorry. Why. Why. Oh, God. Oh, God. Help me. Help me, please. Help me, help me, help me, help me, help me, help me, help me, help me, help me, help me, help me.
THE COURT: We'll stand at ease a little bit.
AMBER KYZER: Why, God. They're my babies. (Whereupon, the witness was assisted off the witness stand.)
THE COURT: We will stand down for a few minutes.
(Whereupon, a short break was taken.)
RICK HUBBARD: We will put her back up.
THE COURT: You are not going to ask her to read anymore.
RICK HUBBARD: No sir, no sir.
THE COURT: She has got to get through this. I am going to let her rest for a minute, she is not going to read any more letters.
RICK HUBBARD: No, sir.
SUZANNE MAYES: We have about three more items to ID.
THE COURT: Okay.
BOYD YOUNG: I have a motion for a mistrial.
THE COURT: Let's turn the mike's off. Let's do this right here.
BOYD YOUNG: Your Honor, the Defense would move for a mistrial based on Ms. Jones reaction on the stand. This was calculated by the State. The State consistently ramped up her emotions in an effort to get her to crack which she then did. The jury had to file past her wailing, screaming, crying and a complete breakdown unlike anything I have ever seen on the stand. The State has prepared her, I am assuming the State has been with her and I am assuming they have been through all of the evidence with her and she knows what these letters are. The State calculated this attempt to cause her to break down and they did and it was in front of the jury and for that basis we would move for a mistrial.
SUZANNE MAYES: Your Honor has not seen the report that have been generated by the Defense experts but that we expect are coming. We are looking to call Ms. Kyzer one time in this phase and not have to recall her on reply. But it is repeated throughout the Defense expert's reports, references to the DSS action and that he killed the children because the mother did not want them. And there is one expert that goes as far as to say it was, he did not know that it was morally wrong because he believed that sending to heaven was a morally greater value choice than leaving them with their mother. So the fact that she wanted them is absolutely probative, that is reflected in that letter. That is a Defense expert, that is a Defense exhibit and in response to the expert testimony we believe is coming. Your Honor, as to a mistrial the case law is that it is for manifest necessity and that is not present here. She is emotional, we expect persons to be emotional on the Defendant's behalf when we get to that stage. But certainly in a case where someone has lost five children, she is a necessary witness, we can't expect her not to have any emotion.
BOYD YOUNG: Expecting her, that is a mischaracterization of the Defense expert's report. Nobody says he did it because he didn't want her to have them. That is not in anybody's report.
SUZANNE MAYES: That is our interpretation of the report, so the interpretation of experts we have consulted with.
THE COURT: Let's give him a chance.
BOYD YOUNG: So, they have met with her, they have worked with her, this was a calculated and design response that they created. It is absolutely a manifest necessity that Mr. Jones be granted a mistrial in order to get a fair trial. At least one Juror was visibly crying in of the front row of the jury box. A white female on the front row of the jury box, there is no curative instruction that could possibly cure this. No Juror could ever forget what they saw or conceivably put it out of their mind. Under 16-3-25(c)(1), the jury may not be influenced by passion, prejudice or any other arbitrary factor.
THE COURT: Do you know which Juror it was?
RICK HUBBARD: It was an alternate.
THE COURT: Which one are we talking about so I know.
RICK HUBBARD: She is an alternate.
BOYD YOUNG: Ms. Kent.
RICK HUBBARD: It is not Ms. Kent, I think you are talking about the one on down from Ms. Kent, probably on the other side of Ms. Kent.
THE COURT: Can y'all tell me which seat she is in because I know about where they have been sitting pretty consistently on the front row. It has been the gentleman with the tattoos, the Clemson tattoo, rides a motorcycle.
RICK HUBBARD: She has glasses.
THE COURT: The fourth one down wears glasses and is dark headed, always has his hair pulled back.
RICK HUBBARD: Ms. Kent doesn't wear glasses. Ms. Kent is the one that is coughing the whole time.
BOYD YOUNG: I mean the State has the pictures.
THE COURT: I have got them. She is down here. Ms. Brown who I think you are thinking about. Ms. Lee is sitting to her right. Ms. Lee is sitting beside her, she is the one that left her notebook in here last. She looks very much like her. It is very close, one looks like the other. I agree with you because I have been studying which one is which for my benefit during the trial. They do look similar, similar build, similar hairstyle. I thought y'all were talking the fourth chair. That is who I think it is, who you are describing, Ms. Brown.
BOYD YOUNG: As the jury was walking out the witness started yelling, Oh God, Oh God, I want my babies, my babies, my babies. She got loud, scream, she was why, why, why, help me, help me, help me. As part of our record on what--
THE COURT: Your record is clearly made and it was loud, it was emotional. I don't find that to be manifest necessity to declare a mistrial. I think the jury needs, I am going to call it a cautionary reassurance instruction that we told them coming in it was going to be emotional, difficult case to listen to. And they understand the emotions run high at times and that was unexpected. Something along those lines. That is what I would like to do to move forward.
BOYD YOUNG: I don't think it was unexpected.
THE COURT: Oh, I think it was unexpected. I don't think either one of those three, particular Ms. Mayes would have done that had she known she was going to get that response.
BOYD YOUNG: The record needs to reflect that it was the Court that intervened. The State didn't just, said--
THE COURT: Intervene on her crying?
BOYD YOUNG: Yes.
THE COURT: Well, you think that I shouldn't?
BOYD YOUNG: No.
THE COURT: Okay. I am the closest one to her.
BOYD YOUNG: It wasn't the State, the State just said, okay, this is it as if presenting further evidence. This is part of the test, the Court stopped it appropriately and should have stopped it.
THE COURT: I thought I did right.
BOYD YOUNG: You did. But they didn't.
THE COURT: What are they suppose to do?
BOYD YOUNG: Ask for a break.
THE COURT: I mean, they knew--
RICK HUBBARD: The Judge intervened immediately.
BOYD YOUNG: That is incorrect, that is not accurate, that is not--
RICK HUBBARD: Certainly did. Y'all keep painting a picture--
THE COURT: I think I did that appropriately, I don't think they have got any responsibility to say, Judge, we need to take a break. I think I did the job. I think I did what I was suppose to. And if you want to make a record of them not saying a word that is fine.
RICK HUBBARD: And I would just tell, Your Honor stepped in pretty quick.
THE COURT: I did. She turned to me and I stood up. I mean, I don't think there was any doubt in any of y'all's minds, I'm not putting words in your mouths, y'all didn't think I was going to get the jury out of there as promptly as I could. I mean, that was exactly what I was doing. So, I am not saying y'all thought I was going to do that. I knew that is what I was going to do. I don't think I left any doubt for y'all either. So I don't think it was anybody's responsibility to say something other than me. I think it was my responsibility and that I handled it as efficiently as we could. So if y'all think it is the State's responsibility, make your record. I think I did my job.
BOYD YOUNG: For the record, I know that it was recorded and there is no way to transcribe what was going on. So we would ask for that section of the recording to be made part of the record.
THE COURT: Sure.
ROBERT MADSEN: I think we want to make sure that that is included.
THE COURT: They want an audio portion of that part.
COURT REPORTER: Just of that.
THE COURT: Yes, when she started and stopped. You have got a video. I promise you, they can get you whatever you want. They told us ahead of time, it is available to y'all.
RICK HUBBARD: One final note too. Yesterday the Defendant was crying, it is expected that people who are closely to this case. Whether they are sitting at the defense table or whether they take the stand. And, Judge, no one is trying to misstry this case, we are just trying to try it. And Your Honor has already made observations about her earlier on being very emotional. And Ms. Mayes was doing a great job holding her there, trying to address what we know is coming.
THE COURT: Okay.
COURT REPORTER: So I will do that later and we will put in as a Court's exhibit. I can put in an external hard drive.
THE COURT: Do the audio and make it the portion from when the question was asked and she started reading until your recording goes off and we can have that.
BOYD YOUNG: Thank you.
THE COURT: The audio actually, not her parenthetical. (Whereupon, Court's exhibit 87 was marked for identification only.)
BOYD YOUNG: Understood. The motion is denied?
THE COURT: The motion is denied.
BOYD YOUNG: We object and we object to the, I don't think it can be cured by a curative instruction. I have to object after the curative instruction.
THE COURT: Okay. I understand. All right, the mikes are back on. Get the jury in. (Whereupon, the jury came into open court at approximately 4:15 p.m.)
THE COURT: All right, folks. We're going to continue on. I told you earlier during the jury selection process the case was going to be challenging. We're going to have some difficult emotional moments. The case will be decided on the sworn testimony and evidence and emotions from the witnesses are going to be shown. I'll give you further instruction on how to consider the testimony. But the affects of the emotion shouldn't be considered, and I'll explain that later at the end. But we need to be cognizant, aware, emotions will be shown during the trial. Thank you all for your consideration. Ms. Mayes.
BOYD YOUNG: We would object and renew our motion.