3.Out-of-Jury Record on Defense Exhibit Photographs
143 linesTHE COURT: That's what I was thinking, too. I have got to put something on the record before the next witness. I thought we could take a break, we got it early. So you're going to get another 10 minutes. So step in the jury room. We'll have you back out here in a moment.
(Whereupon, the jury was excused from the courtroom.)
THE COURT: The next witness is Dr. Ross?
RICK HUBBARD: It is.
THE COURT: Okay.
RICK HUBBARD: On the witness we just had, we had a sidebar with Defense who wanted to put those photos in. We brought up the sidebar for the purpose of informing Your Honor that unlike the DSS plan, safety plan, was found in the vehicle. The Defense put that in along with everything from the vehicle. These photos were not in the vehicle. So these were separate and apart, so we wanted to make sure the Defendant himself wanted these in. The Defense team, they even have Appellate Defense here. Part of that sidebar and said -- they're assuring Your Honor that the Defendant wants this. I just want that record clear, because so many times there's an issue about did the Defendant really want this.
THE COURT: I think my comment, are they ready, did they want to proceed, was confirming the conference they had at the counsel table that that's what they wanted to do.
RICK HUBBARD: Yes, sir. What we will have with Dr. Ross, there's one photo out of all those autopsy photos, there's hundreds of them, I was going to put in. I showed it to Your Honor and the Defense. It is premarked, the cut to Nahtahn's knee. I understand they want to get in other photos. I don't know what those are. We'd like to address that at this point and time.
THE COURT: All right. Mr. Young, let's hear you.
BOYD YOUNG: Are you going to do, the 403 analysis on the photo that the State--
THE COURT: I'd like to see it again. But I saw it and it was a photo of the base of the knee and parts of the leg. I don't know if the foot was even in it or the hip. It was in between the hip and the foot. The knee area. The middle part of the leg.
RICK HUBBARD: State's ID 177. It is a closeup shot. It's probably the cleanest closeup shot we have of the knee where Dr. Ross can testify as to the saw marks. Your Honor, what we would argue that, obviously we have to prove malice, that he's saying Nahtahn was an accident. As Your Honor has heard, September 7th, the day after Mr. Jones was arrested, we had Sheriff Crumpton say, "I was struck by how angry he still seemed to be at Nahtahn." On the 8th when he was interviewed by FBI, again there was that anger at Nahtahn. And he even said none of this would have happened, all these kids would be alive but for Nahtahn. If he had just come off of it. On the 9th, the day they went to find the bodies, the very day that they found this leg as it was, that's when he -- he also talked about he broke the glasses on that day. He then seemed anger at the time. This photo is highly probative of that continuing malice of all the kids that he attempted to cut or saw, the one we have evidence of that, clear evidence, was Nahtahn. So I think it's highly probative of malice I have to prove. Their argument is it was an accident. So that's my argument on 403.
THE COURT: All right. Let me hear from Young on that 403. What is -- what is the number again?
RICK HUBBARD: 177 ID for State. I believe Your Honor may still have it up there on the Bench.
THE COURT: I don't.
RICK HUBBARD: Did I just get it back?
THE COURT: Yeah.
RICK HUBBARD: Okay. There we go. I got it right here. It's 177.
THE COURT: 177. All right. Mr. Young, I'll hear you.
BOYD YOUNG: Your Honor, given the gruesome nature of the photographs we would ask again that they all be suppressed. But, of course, if this one comes in, I think it would be upon us to put others in.
THE COURT: Based upon my understanding of the testimony and the statements of the Defendant regarding the cut, sawing on the child, I believe it would be probative of the State's case and their burden of showing malice. The picture is very restrictive. It doesn't even show his feet, it's a closeup. It's, in my description of, understanding it would be prejudicial, it's graphic but it's close. It's not, it has been cleaned up.
RICK HUBBARD: Yes, sir.
THE COURT: It's not a fresh wound, I guess, is the best way in layman's terms, Dr. Ross may have better terms for that. I believe it would be -- under 403 it is prejudicial, but the State's request seems reasonable considering, considering everything, one photograph out of dozens. And that particular photograph -- and I've not viewed the others. But that one does not seem unduly prejudicial in the Court's view. So I will allow it.
BOYD YOUNG: I understand.
THE COURT: Now, the State also mentioned when we had the bench conference, they intended to use some sketches by Dr. Ross showing others. You want to be heard on those, or do you want to go into the pictures you made to use to balance --
BOYD YOUNG: I'm fine with the sketches.
THE COURT: The sketches are okay?
BOYD YOUNG: Yes, sir. I just need to note my objection for the picture--
THE COURT: -- it is noted. So that's on 177?
BOYD YOUNG: Yes, sir. In light of the Court's ruling, we would move -- we intend to offer five pictures taken from the autopsies, one of each child, as they were photographed at the time of autopsy.
RICK HUBBARD: And I'm going to strenuously object. One, at this stage, they are absolutely irrelevant. 401, relevance means evidence just for the record having any tendency to make evidence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Your Honor, I cannot, as an officer of the Court, say those show what I need to prove, to prove my case. Under 403 I think you will find it's far more prejudicial than probative. I think what they're trying to do is basically use shock value to diminish the shock should there be a second half of this case. The second phase of this case we get to show the characteristics of the crime, the Defendant, how the victims were found. They become probative at that point, relevant at that point. Right now they're not, even if they want to put them in, Your Honor, I think it's reversible. Even with them saying, because right now I think it's going to be reversible. And if the knee where there was a saw cut was prejudicial, then my God, these are even more so. Plus they're going into other victims that I haven't even brought up. What the State has done, even though we have hundreds and hundreds of autopsy photographs, including two sets from CSI individuals taking photos, I've pulled out one, cleaned up, closeup of a knee. I'm using sketches for the rest. I think it's highly prejudicial under 403. Clearly not even relevant. Not relevant to malice, or anything. It only becomes relevant in the second phase. I think it would be reversible error.
THE COURT: Let me hear back from Mr. Young. I think he needs to review them.
RICK HUBBARD: Your Honor, in looking at that, I'm at a loss for the probative value in the guilt phase, for those photos.
THE COURT: Mr. Young, tell me why these are necessary.
BOYD YOUNG: Because he was riding around in the car with them for over nine days and it goes to mental illness.
THE COURT: Goes to what?
BOYD YOUNG: Mental illness.
RICK HUBBARD: Your Honor, they don't need the photos for that. Just riding around with rotting corpses in the testimony is fine. They don't have to see it. It's not probative. It's highly prejudicial. They have the testimony. They'll have experts talking about mental illness for riding around with rotting corpses in your car.
BOYD YOUNG: I believe Mr. Hubbard as made an argument that it is probative and I can, to show the conditions of the bodies that he was riding around in the car with, up until hours before he was stopped.
RICK HUBBARD: It's not at this phase of the case, Judge. It's not at this phase.
BOYD YOUNG: It is. It's his -- that's mental illness.
THE COURT: Here's what I think. Certainly he'd been riding around in the car with the bodies. I haven't heard any testimony that they were visible. They were in bags. They were covered in sheets. And so, a photograph of that graphic nature that shows mental illness when that's not what he's viewing. If I heard anything that was contradiction to they were covered with bags and/or sheets -- you know, the smell certainly has been testified to by just about every witness who came into contact with Mr. Jones, and officers out there recovering the bodies. The bodies were recovered in black trash bags. So how are pictures of what's inside the bag indicative of mental illness?
BOYD YOUNG: Well, he took -- he took the bodies out of the car and put them in the bags on the side of the road in Alabama.
THE COURT: I haven't heard that.
BOYD YOUNG: That was -- that was in his taped statement. Taped in, a transcript--
THE COURT: I thought the testimony was he put them in trash bags and put them in the car.
BOYD YOUNG: No.
RICK HUBBARD: It's not clear. The only thing it does say, he says at one point that he put them in trash bags right before he dumped them. The problem with that is --
BOYD YOUNG: Trash bags--
RICK HUBBARD: -- excuse me.
BOYD YOUNG: Sorry.
RICK HUBBARD: What he does say is that he puts them in trash bags and dumps them. Here's the problem. Where as in the penalty phase you can go into the conditions as they're found, which is what you see. That's not necessarily the condition they were in. Because as Dr. Ross is going to say, when she testifies, that putting kids -- or bodies in black bags and leaving them out in the hot sun increases and rapidly increases decomposition. So those kids didn't necessarily look in the condition they are right there when they were in his car. So there's a discrepancy. All that can be testified to is that there was decomp, there is a smell. Those photos will not be probative of how they actually looked when he put them in bags. The bags created that condition. They are misleading.
BOYD YOUNG: I understand the State's argument on that, but that's what it is.
RICK HUBBARD: It's fact.
BOYD YOUNG: I disagree, that that--
RICK HUBBARD: It's a fact. Dr. Ross will testify that putting bodies in a black bag and leaving them out in the hot sun increases decomp. That is not how those bodies looked when Mr. Jones rode them around in the car, what they looked like when he put them in bags. The penalty phase, it's purely relevant --
THE COURT: Okay. I think we are, I don't need to sit here and argue. I am thinking, y'all are saying the same thing.
RICK HUBBARD: Yes, sir.
THE COURT: Y'all are repeating yourselves, not saying the same thing.
BOYD YOUNG: Judge, of course, we can't appeal stuff that we put in. That's not an issue.
THE COURT: I'm with you.
BOYD YOUNG: Barring the Defense from offering up evidence that goes towards his mental illness is appealable. That will get reversed. Letting evidence in that the Defense says is probative of mental illness and the State wants to argue is not, is not appealable.
RICK HUBBARD: Number one, this wouldn't be the witness. Number two, they are not being barred from arguing anything at all. But it is misleading photographs and I am highly, highly prejudicial photographs. Misleading in that it would show --they're trying to say that's how they looked when they were in his car. But that is, Dr. Ross will establish --
THE COURT: All right. I understand what you're arguing.
BOYD YOUNG: She can still say that.
THE COURT: Tell me again, it seems to me this is not the right witness, number one. Two, maybe this is probably my best analysis is, is this the right witness. We've had other testimony to show -- I think you're allowed to show, you've got a burden to show the mental illness certainly at this phase of the case. Can you do it through another witness?
BOYD YOUNG: She's the only medical examiner.
RICK HUBBARD: Part of the problem is, five days have gone by since they're dropped off to autopsy. There is tremendous decomp between the two.
BOYD YOUNG: I understand. He keeps making that argument. But their witnesses said that they took them to the cold storage to slow it down. And I'm sure that that is something that she can testify to.
THE COURT: Are there any other pictures available that show less graphic -- I mean, these are very graphic, more so than -- these aren't cleaned up like the knee is. I'm not going to -- I'm not going to go pick them out for you.
BOYD YOUNG: I mean, there's pictures at the location which I would argue are worse. These others where they opened up bags to verify they all had human remains in them. Those witnesses have already testified. And the State put in the one picture of the bags under the tree. There are pictures from the Alabama Coroner's office where they opened the bag, photographed the remains and then put them in individual body bags and transported them to South Carolina. And then Dr. Ross was the next person to see them.
RICK HUBBARD: Your Honor, I think they can't even begin to make it relevant until they put their experts up to talk about why this is important. Right now it's attorney argument. It's not testimony.
BOYD YOUNG: I don't have the medical examiner and my understanding is she has a scheduling conflict.
RICK HUBBARD: She's going to have to come back anyway, if we have a second half. If we don't have a second half then it's a moot point.
BOYD YOUNG: Well, if Your Honor rules I can't get them in now then it's sort of a moot point.
RICK HUBBARD: In his case-in-chief, if he can establish that relevancy to show probative value outweighs prejudicial effect under 403 then, Your Honor --
BOYD YOUNG: Prejudicial effect is to the State.
THE COURT: It's not prejudicial. I thought prejudicial effect is the--
BOYD YOUNG: On evidence that I am arguing, he is saying it shouldn't come in because it's too prejudicial to him. And I don't know what the prejudice is to the State.
RICK HUBBARD: I answer to the Court. I answer as an administer of justice because I have to protect a client even if I'm trying to put that man on death row. Because you know five years from now these aren't going to be the attorneys. They're making some major decisions here. And they keep representing, well, we are doing what Tim wants.
BOYD YOUNG: I never said that. I said I am doing what I want.
RICK HUBBARD: And that's, that's the problem. May I see those photographs.
THE COURT: Yes. I understand both of you y'all's arguments. All right. I'm having a hard time balancing the prejudicial effect when the knee was prejudicial to the Defense, probative for the State. Now the roles are reversed and these are much more prejudicial in the look. I don't believe this is the appropriate time to put these in. I'm not saying they can't come in, but I don't think it's appropriate right now. You all have got an opportunity later to present them in your case as to the mental illness. I think we'll be in that phase shortly, soon, in a few days. And perhaps there's -- you can call Dr. Ross back if need be. But I don't think right now that's the appropriate entrance. Because how can, explain to me, how can you say the knee is prejudicial, the State says it's probative and then we flip?
BOYD YOUNG: The State hasn't offered any prejudice to the State on the admissibility -- on the admission of those photographs. Because there's not -- it's not what the Rule is designed for.
RICK HUBBARD: I will clearly express it.
THE COURT: All right. Clearly express it then.
RICK HUBBARD: As administer of justice, obviously as Your Honor knows, I have a duty to the Defendant. I don't want to try it again. I don't want to call Dr. Ross in five years from now. I don't want to call Sheriff Crumpton along into his retirement again and I think that's exactly where I am going to be. Calling people from Mississippi. Ms. Watkins --
THE COURT: I guess what I don't understand, Mr. Young, is this. Why are you arguing against it and then you're arguing for it, because of my ruling on the other picture. That's what is kind of confusing me, is it seems to me you should have said the knee is -- I need some also, rather than arguing both sides of it. That's where I'm, that's kind of where I'm losing. No, I don't want that picture in. And then once I make that ruling that it's under 403, then you flip and say now we want more.
BOYD YOUNG: Yes, sir.
THE COURT: I'm having a hard time following that logic.
BOYD YOUNG: If it makes it easier for the Court, I'll withdraw my objection to the knee picture.
RICK HUBBARD: That is a resolve to the ultimate issue.
THE COURT: I'm going to step off real quick. Just stand easy for a minute. All right?
BOYD YOUNG: Thank you, Your Honor.
(Whereupon, a short break was taken.)
THE COURT: Here's what I've decided. The State's 177 is in, or comes in if they offer it, preliminary 403 analysis. My understanding of the facts, the bodies were placed on the side of the road sometime Saturday before his arrest.
RICK HUBBARD: I am just not hearing, Judge, it may be the air.
THE COURT: There we go. Is that better?
RICK HUBBARD: Yes, sir.
THE COURT: It wasn't on. It wasn't me. 177 is coming in if the State offers it under the 403 analysis we just presented on. The five pictures numbered by the Defense, for the record, 112, 111, 110, 109 and 113. Those are photos, to my understanding, of the bodies in Newberry, the autopsy. Is that correct?
RICK HUBBARD: That's correct.
THE COURT: Okay. The Defense has represented to the Court that they want to show pictures of the bodies to show mental health issues of the Defendant. I don't believe they're appropriate now. I believe other photos may be more appropriate but closer in time to the disposition of the bodies away from Mr. Jones. I don't know that. I'm not saying what photos would be more appropriate. I don't know. I don't know all the photos y'all have, y'all represented the photos here. There are photos that have been picked up, they've been from Alabama. There's a lot of photos out there. I'm just not aware of them. These are extended, deferred in time. I understand they may be relevant to the mental illness. I think that should come up during the mental health portion of the Defense case. If the Defense believes Dr. Ross is needed for these photos, wants to try to get them, I will assist them in trying to coordinate with Dr. Ross. Hopefully her schedule will coordinate with that, even if we have to wait on her. So I don't think they're appropriate at this time. So they're marked for identification. I'm not going to rule whether the Defense can use photographs or not during their portion of the case. I think you can. I don't think they're appropriate at this point in the case, in the State's case. So that's my ruling now.
BOYD YOUNG: Your Honor, note our objection that it violates the Sixth Amendment right to present a defense for Mr. Jones.
THE COURT: All right. I want to be clear. I'm not saying you can't do it in your portion of the case.
BOYD YOUNG: Well, the State has certainly tried to preempt -- I mean, they've asked every witness about mental health. They've asked all of their witnesses about mental health. You're not saying that, mental health evidence that comes in is during the Defense's case. The State has tried to preempt our insanity case since their first witness. To say that we can't do the same thing and offer up evidence of mental health through the State's witnesses is not --
THE COURT: All right. I want to go back. To my understanding, the presentation on Mr. Jones' mental health status at the time everything happened, these photographs are -- when were they taken? The Thursday or Friday after or the -- I don't even know when.
BOYD YOUNG: I think it was on the 11th when the autopsy was done.
THE COURT: And the bodies were placed on the side of the road on Saturday the --
BOYD YOUNG: 6th.
THE COURT: -- 6th. There's no reason the Defense cannot cross-examine Dr. Ross on the graphic nature of these pictures when she's up here now. And if you want to call her back I'll help you get her back.
BOYD YOUNG: The Court's saying, you can't use these pictures?
THE COURT: Right now.
BOYD YOUNG: Under this witness?
THE COURT: Yes.
BOYD YOUNG: We believe that we're being prevented from fully presenting our defense of not guilty by reason of insanity, that the Court's ruling violates the Sixth Amendment, the right to confrontation and the right to put on a full defense under both the due process, Fifth, Sixth, Fourteenth Amendments, Article 1 Section 13 of the South Carolina Constitution. And specifically the case of Lee versus State which was reversed by the United States Supreme Court on a failure, or the right to present a defense analysis.
THE COURT: Okay. Your objection is noted for the record. With my explanation earlier as to why I am ruling this way at this time.
BOYD YOUNG: My attempt would be to ask Dr. Ross to identify the pictures, if they came from her, without publication--
THE COURT: You can do that.
BOYD YOUNG: -- at this time.
THE COURT: You can do that. She can testify she took several hundred pictures, or some of -- one of her staff members did. So these are some of the newest ones that were taken during the autopsy. That's fine. You can make her identify them.
BOYD YOUNG: And here's what -- here's what the State's real problem is, is they're just trying to sandbag and wait until the penalty so they can try to shock and awe the jury with these pictures at penalty, which the Court is -- truly is allowing them to to.
THE COURT: I disagree with you but I understand you have made a record, and your objection is noted.
BOYD YOUNG: Thank you.
THE COURT: All right. We're ready for the jury.
RICK HUBBARD: Yes, sir.
SUZANNE MAYES: Your Honor, pursuant to Rule 1002, Mr. Madsen and I have conferred. We have the original photographs of Nahtahn Jones that were collected by DSS and in the possession of law enforcement. They had marked a copy of copies pursuant to discovery. So they have no objection to us substituting with the originals.
THE COURT: Okay. So we'll substitute those, marked as the same photographs -- numbers?
SUZANNE MAYES: Yes, Your Honor. We'll just let Joy match those up at the appropriate time.
BOYD YOUNG: These aren't the originals. These are just printed copies. They're the same as those printed copies.
SUZANNE MAYES: Those would be the originals that were received by law enforcement from DSS. Those were the original printed versions. These are copies of copies that have been scanned in by our office and provided pursuant to discovery. Based on my communications with Mr. Madsen, my understanding was, is there was no objection.
THE COURT: Okay.
BOYD YOUNG: There's no difference in the quality.
THE COURT: I don't want to argue over which is the better quality. If the originals are better than the copies, then use the originals.
BOYD YOUNG: If they have got the originals I am happy to put those in.
THE COURT: Okay.
BOYD YOUNG: These are just different copies.
THE COURT: Well then, I don't want to make a non-issue an issue. Bring in the jury.
BOYD YOUNG: I don't have any objection of them putting those in, too, I guess.
THE COURT: We will substitute the pictures. I don't want an issue of which pictures were first and second and which copies, five pictures, however many it was. We don't need ten pictures of the same two things.
COURT REPORTER: I will do this during our next break. (Whereupon, the jury came into open court at approximately 10:35 a.m.)
THE COURT: Call your witness.
RICK HUBBARD: Thank you, Your Honor. The State calls Dr. Janice Ross.
THE COURT: Dr. Ross, come forward and be sworn.