11.Unredacted Statement Review
55 linesRICK HUBBARD: Your Honor, this is that matter that --
THE COURT: Okay. We need kind of a ten minute break, do we not. We will back in 15 or 20 minutes. You in the jury, if y'all will step outside, you may. You'll have enough time to do that. There's something I've got to deal with. Don't talk about the case. (Whereupon, the jury was excused from open court for a break.)
THE COURT: All right, would it be easier for me to hear the unredacted version and I can go into chambers and listen to it and everybody can kind of have a break and y'all won't be sitting here watching me listen. I mean, do you want me to hear the whole thing, and then we can hear your arguments?
RICK HUBBARD: Yes, sir.
THE COURT: Okay.
RICK HUBBARD: All right, I've got our -- the whole unredacted to redacted.
THE COURT: Okay.
RICK HUBBARD: Just for Your Honor's sake, the unredacted is 187 for ID. The redacted does not have a sticker on it yet --
THE COURT: Okay.
RICK HUBBARD: But I can go ahead and put one on.
BOYD YOUNG: And I haven't heard the redacted.
THE COURT: Okay. Well, you all listen to that and when you get done with it, then --
RICK HUBBARD: We'll send it down to you.
THE COURT: Send it back to me through Whitney. So we'll stand down for at least -- you said 14 minutes?
RICK HUBBARD: It's probably about 16 plus.
THE COURT: Okay. (Whereupon, a short break was taken for the Court and attorneys to listen to a CD.)
THE COURT: I now know there's a player that needs to be downloaded than the player it already has. So I had to get Court Administration, IT, to help me and finally they did. All right. Mr. Young, why do you want the whole thing --
BOYD YOUNG: The --
THE COURT: -- or why do you want neither?
BOYD YOUNG: The State's redaction is misleading in that it cuts out the section of Tim and his parents and his parents interjecting and I snapped. And then the State's cutting all that out, all that initial dialogue out, to then bogus it to make it look like Tim says, later on, I know why this happened, I just snapped. When, in reality, it's part of a much longer conversation where that answer has already been subjected by his family, and that's why it's misleading to play just Tim saying it and not playing the family part, as well. Finally, Your Honor, at the end of the recording, to end it where they did is misleading, as well, because Tim does talk about not wanting to die now and what his life in prison could be like. And we think that should be played under Rule 106 and should be required to be played under the Rules of Completion. I understand that the Court has ruled that this phase where Tim says I could one day get out, or be back out on the streets if I was found not guilty by reason of insanity, should not be allowed in. We, of course, from our objection, think that it should be allowed in. If there was anything that was going to be played, it should just be that one line, I could be back out on the street. But other than that, that's the only thing that the Court has ruled should not come in and to redact it, and in the manner the State has makes it misleading.
THE COURT: All right. I don't think the whole thing's necessary. But out of an abundance of caution, I want it redacted, just the part about the if he gets a not guilty by reason of insanity, I'd be back on the streets. I want that part out. If you want the rest in, I'll let you play that.
RICK HUBBARD: The only question about that is it also talks about I don't want to die, which you've already ruled he can't say that, and that's all --
THE COURT: Why can't he say that?
RICK HUBBARD: Well, I don't think he can. Not in this phase. First of all, we're in phase one. So if it was phase two and they wanted to put the whole thing in, I get it. I do. We wouldn't have a problem. But your ruling has been very consistent so far that we can't go into that area. So that's why we're trying to honor your ruling and just say all of that truly post-sentencing. And so, we're not there yet. So, frankly, Judge, I was trying to honor your ruling --
THE COURT: Yeah.
RICK HUBBARD: -- and not confuse the jury, because we spend so much time, as you know, trying to teach them on the phases and that that doesn't come -- it's not supposed to be in their thoughts now. And I think it would be me interjecting with a piece of evidence something that you've properly ruled that doesn't come up now. And that's why -- can we just try to end it with what, I think, is relevant.
THE COURT: Well, I mean --
BOYD YOUNG: The State --
THE COURT: Do you really need it at all? I mean, it seems like it would be more appropriate if we get to the second phase to me, because it's just a bunch of talking about, well, you know, we had a cousin and they did this, and it's --
RICK HUBBARD: I will tell you --
THE COURT: -- a lot of rambling.
RICK HUBBARD: The whole front is, I'll tell you why that part is relevant to this section right now, the first phase. It's because he explains yet another version of why he killed Nahtahn and the kids. It is different than anything that we have presented so far and, Judge, we've got -- we've presented what he's said to the FBI agent, you just heard what he said to the SCDC guy. So this is the third version and we're -- I think we're entitled, because that's what this part is about. So we try to keep it to what's relevant and nothing else.
THE COURT: All right. Mr. Young, what about the part -- and I don't remember the specific word. I didn't write it down. I only listened to it one time, but, you know, I'm feeling good, about ninety-five -- I thought he meant like ninety-five percent good. Something along those lines. I think that's where this, I don't want to die comment comes in. His dad says, well, that's great, or, you know, it's good to hear that. Something positive back to him. Why do you get that if we're going to stay away from the result of the verdict and--
BOYD YOUNG: -- well, I think under the Rule of Completeness it is required to be played with the whole conversation into context. He's talking about the meds, how the meds are working for him, how he feels better because he's not talking to himself like he used to. And based on his medical regimen, he finally feels like he doesn't want to die. That's relevant to our case of mental illness and I think it should be played.
RICK HUBBARD: That's the problem. It's so tied into what comes next. Your Honor has been very consistent on that. So that's what we try to honor what the Judge has ruled on, Judge. That's -- so as far as 106 Rule of Completeness, what's fair to explain what's going on. What this entire part of our case is about is why did he do what he did. Is he guilty. And they're trying to say he's mentally ill.
THE COURT: All right.
RICK HUBBARD: What's going to happen with the mental health people, they're going to put up, Judge -- because we read their stuff. They're going to take this and say he didn't want his kids to suffer. So it's actually going to lead right into what they're going to present next in this phase, but not getting into what happens sentence-wise.
BOYD YOUNG: I don't think saying I feel better, I don't want to die, gets into what happens sentence-wise.
THE COURT: I think everything ties into everything. So, I mean, you all have got to quit arguing. You all keep arguing that. Everything ties into everything. My gut and my ruling is, cut out the one part about I could be on the streets again. That part. The rest of it, I don't think is necessary. I don't -- I wouldn't even play it, but it's not my case to try. I wouldn't play any of it. I just think it's not my case to try. It's not very impressive to me.
RICK HUBBARD: Well, I understand that, Judge, and, obviously, we've put a lot of time into it. I'll tell you what we'll do. We'll take what you've -- and the ruling would be if it comes in at all, we do what.
THE COURT: It's the part where he says, well, if -- I think his dad says something like, if you get off of the death row BS, then, you know, we can go there. He says, no, no, I could, if that verdict comes out, be walking the streets again. It's all in there. That's what I want out.
RICK HUBBARD: Go up to -- Judge, I'll take it and we'll work on it.
THE COURT: Yeah. That's a lot and it's hard to listen to it.
RICK HUBBARD: It is and that's why, Judge --
THE COURT: That's why I probably wouldn't play it just because it's so difficult to concentrate and listen to.
RICK HUBBARD: That's why we focused on the exact thing we thought was relevant for this trial.
THE COURT: I don't -- I don't -- and I appreciate that.
COURT REPORTER: What are those numbers on --
THE COURT: 186 and 187, ID.
RICK HUBBARD: 198 and 187, Judge.
THE COURT: Okay. (Whereupon, State's Exhibit 198 was marked for identification only.)
RICK HUBBARD: We're ready to move on, Judge.
THE COURT: Me, too. We're ready for the jury. (Whereupon, the jury came into open court at approximately 3:32 p.m.)
THE COURT: All right. Thank you all for your patience. I had to listen to some stuff, and then my computer gave me trouble. So that was the main part of the wait was me on the phone with Court Administration. So I apologize. Call your next witness.
SHAWN GRAHAM: The State calls Mike Phipps.