8.Ruling on Lay-Opinion Testimony
126 linesTHE COURT: All right.
ROBERT MADSEN: That is not what he asked and that's not what --
THE COURT: Okay. That's what I thought he wanted to ask. I'm not certain -- the first question you objected --
ROBERT MADSEN: He, basically, said -- he's got the officer up there saying he knew the difference between right and wrong. That is the ultimate issue. That's a lay opinion. That is not appropriate. That last question needs to be struck, the answer needs to be struck. Your Honor needs to give a curative instruction. That is not appropriate for him to say.
THE COURT: All right. I want to be clear. Those four or five questions he just asked are appropriate.
ROBERT MADSEN: He can ask questions about action, but not get the opinion on what do you think.
RICK HUBBARD: My question was initially were you looking for any indication of wrongfulness. That's absolutely appropriate. That is absolutely appropriate. Now, his response, his initial response may have -- if Your Honor overrules that, but my question was appropriate. And I'm going to try to make them specific so he doesn't have to guess what I'm asking.
ROBERT MADSEN: Judge, you could have the Court Reporter just read that little part back? I mean, that's what needs to be struck.
THE COURT: I'm good with the last question and your objection, the response is struck and the Solicitor asked another question. I'm good with that without repeating it.
ROBERT MADSEN: But we still need a curative instruction.
THE COURT: Suggest one for me. Don't listen to the Solicitor's last question, it was improper? I mean --
RICK HUBBARD: Let's highlight it and say --
THE COURT: Yeah, that's always my concern, is all right, one of these lawyers asked a question that was too detailed, so don't listen to the detailed question he just asked, which was. You know, what color is the White House? Well, you gave the answer in the question. That's not fair, I object. Suggest a curative instruction for me.
RICK HUBBARD: Your Honor, I believe my question was appropriate. If Your Honor wants me to just move on, I will.
ROBERT MADSEN: Judge, like I said, the lay witness cannot give an opinion on the ultimate issue.
THE COURT: I agree with you.
ROBERT MADSEN: That's what he did.
RICK HUBBARD: And if he did, it wasn't my question. So I'm fine if Your Honor says rephrase your question, we'll start over.
ROBERT MADSEN: And with all due -- that's what I think he did and that's what he got.
THE COURT: What do you want me to do? I'll be glad to give a curative instruction. You can suggest one. Please ignore the last answer? I don't know.
ROBERT MADSEN: Judge, the question and answer --
RICK HUBBARD: My question --
THE COURT: Wait a minute, Solicitor.
RICK HUBBARD: Yes, sir.
THE COURT: You want it read?
ROBERT MADSEN: To the Court.
THE COURT: No, no. Do you want Joy to look it up?
ROBERT MADSEN: Yes, sir.
THE COURT: Okay. Stop. Don't say anything else. Let her find it.
ROBERT MADSEN: The question and answer. (WHEREUPON, the Court Reporter played back requested question and answer.)
RICK HUBBARD: I think the question was fine. I've got to attack the case.
THE COURT: How about this, the question, which asked the officer in his opinion did he understand wrong is the question the jury will have. He can only describe what he knew.
RICK HUBBARD: Right. And I didn't ask him --
THE COURT: I know, but that's my curative instruction.
RICK HUBBARD: But, Judge, I didn't ask for his opinion on whether he did something wrong. I don't want them to think I did something wrong.
THE COURT: Y'all's semantics is so close. He was asking a question and it was improper and not wrong. You're lashing out at him. Your body language is aggressive and --
RICK HUBBARD: I have a suggestion.
THE COURT: -- they're not. It's okay.
CASEY SECOR: We're not breaking the rules, they have.
THE COURT: Y'all have broken rules, too, but they don't lash out at you. It's okay.
ROBERT MADSEN: We just think the question needs to be struck and the answer.
RICK HUBBARD: No. Judge, here's what I -- I think my question is appropriate. His answer went on. I think you can just say -- you can sustain the objection as to the answer and then I'll start asking specifics.
ROBERT MADSEN: Judge, all we would ask is that you tell them that the last question and answer was struck from the record and it is not in evidence.
RICK HUBBARD: I object to that because my question was fine.
THE COURT: I think that's the easy way to do it. I think that's the easy way to do it.
RICK HUBBARD: Well, how do I ask it, Judge?
THE COURT: No, you ask what did he do, did y'all look for him -- like you just did.
RICK HUBBARD: Yeah. They want to strike it, though. That's why I'm questioning.
THE COURT: No, no, what you just asked, those five questions you just asked proffering is fine, all those.
RICK HUBBARD: But my base question, just so Your Honor understood, was you're looking for any kind of indication from him he understands something is wrong and that's why you're looking for these things. The answer is what -- really got. And I'm fine with that.
THE COURT: You know, you were looking for him running, him hiding, him lying, whatever.
RICK HUBBARD: And why.
THE COURT: No, don't say why. You don't have to explain why.
RICK HUBBARD: Well, Judge, I do, because that's his job.
THE COURT: I think it's obvious.
RICK HUBBARD: Well, I'd like to say that, but I've got to attack their case and that is the whole thing. I've got to disprove -- I'm not trying to contest you, but, Judge, I'm just saying --
THE COURT: But this is so different in this case. You've not had, nor I've had, nor they've had is they've got a burden and the ultimate issue is decide that.
RICK HUBBARD: And I've got to attack it.
THE COURT: You can attack it without saying in your opinion, you were looking for the wrongful conduct of him. I don't think you can ask that. The semantics of that are going to be tough. The five questions you just asked are fine.
RICK HUBBARD: May I do this --
THE COURT: I don't think you can say, and Officer, do you think he knew what he was doing was wrong.
RICK HUBBARD: And I didn't mean to put it that way. But can I do this --
THE COURT: That's kind of the flavor of it, I guess.
RICK HUBBARD: May I do this? Since this has already been presented to each and every Juror about whether he knew legal and moral right from wrong, knowing that, Officer, what type of conducts and actions are you looking for, like coverup, things like that? And anywhere he might admit where he actually says he acknowledges he did it. How about that?
THE COURT: I think that's fine.
RICK HUBBARD: Can we just do this? Rephrase the question, sustain, rephrase and I'll do it.
BOYD YOUNG: No, we need it struck.
RICK HUBBARD: Why?
BOYD YOUNG: Because its still in the record, because the jury has to be told to disregard it.
THE COURT: I'll say the answer was struck.
ROBERT MADSEN: We ask that the last question and answer be struck.
THE COURT: Well, his question was not as harmful to you and so, I don't want to do that. I don't think that's fair. And I think what y'all are doing is trying to --
ROBERT MADSEN: -- I don't think it causes --
THE COURT: -- to be honest with you --
ROBERT MADSEN: -- him any problem to say the last question and answer were struck, please disregard.
THE COURT: And he's going to rephrase his last question.
RICK HUBBARD: Just rephrase, I'll do that. Sustain and rephrase.
BOYD YOUNG: We ask that it be struck.
THE COURT: I'm not going to say strike the last question. Well, what was it? Because I don't want that. So y'all have asked. The answer is -- I'm going to give the last answer is struck. Solicitor, please rephrase your question. That's how we're going to move forward. And y'all do not want me to give a curative instruction?
BOYD YOUNG: We do want you to give a curative instruction.
THE COURT: Well, I mean, y'all are creating the issue because now, they're going to be standing on this thing. When y'all asked a lot of these questions all the way down through this, y'all are going to be on target. So you better be careful what you're asking for, both of you. I mean, this is going to be tedious. It's okay with me, but y'all are really going to be tedious with each other and this is going to be a troubling issue for you. I'm just warning you, all of you. Think about it. How are y'all going to ask the question, okay, so you knew morally. I mean, he didn't know. They're going to be hammering y'all, so this is going to go back and forth. I'm just giving you fair warning. What's good for the goose is going to be good for the gander. Okay?
ROBERT MADSEN: I don't think anyone would intend to put up a lay witness to say no, he doesn't know the ultimate issue. Obviously, the experts --
RICK HUBBARD: So when you bring them out, Judge, just to make sure the appropriate question so we don't start this all over again. If I ask him, in light of this information that you had, were you looking for any evidence that would show whether he knew legal and moral right from legal and moral wrong? And then we go on from there.
THE COURT: No, I don't think they want that question.
RICK HUBBARD: Well, I mean, my question -- it's a preface, but then I go -- and just -- they're looking for that, but -- I've got to explain why he's looking. Why are you asking these type of questions? Because they were strategically geared questions.
ROBERT MADSEN: That's just a different way to say, give us your opinion on the ultimate issue.
RICK HUBBARD: No, no. I'm saying what evidence, are you looking for evidence? So evidence of like, why is that important to you? Why are you looking for evidence of flight? Why do you record that?
BOYD YOUNG: The State is trying to redirect you from the issue before you, which is the question and the answer given. They want to redirect the Court so the Court doesn't end up striking their question and answer, which is hanging out in front of the jury.
RICK HUBBARD: It's interesting that --
THE COURT: Y'all are making such a big deal out of it. It's mired in a lengthy after recording.
ROBERT MADSEN: The way to protect the record is to strike it and give a curative instruction.
THE COURT: I get that, but y'all are going a little too far.
RICK HUBBARD: And I'm just asking --
THE COURT: What I'm saying is, in the big scheme of things, this one question is not your case, but you're trying to make it your case. That's what y'all are doing.
BOYD YOUNG: It was an improper question.
THE COURT: I'm going to say strike it now. Solicitor, how do you propose you ask your next question?
RICK HUBBARD: That is where I just want to make sure I'm not -- I understand parameters from you so I'm not engaging Your Honor and pushing things at 4:30. What I'd like to get at, Your Honor, just the general gist is that this officer is clearly looking for any type of evidence, whether it's responses or physical evidence showing an understanding or -- this is just me speaking, not a question.
THE COURT: Okay.
RICK HUBBARD: Knowing that the ultimate issue is going to be the legal and moral right and wrongfulness of conduct. So he's gearing his responses in his search. So just starting it out, just cueing the jury in --
THE COURT: I think you're giving him too much credit.
RICK HUBBARD: Well, actually, I know it's something we've talked about for a long time over there during the past and that's why SLED got involved, Judge.
ROBERT MADSEN: Judge, the problem is he's trying to back door in the answer to the ultimate issue. He can clearly say --
RICK HUBBARD: That's where they're wrong.
ROBERT MADSEN: -- did he do this.
RICK HUBBARD: They keep telling you what I'm trying to do. I'm not trying to say, do you think he understood right from wrong? I'm not trying to do that. I'm saying now, why are you asking these questions? What do you look for? I look for evidence of flight. Did you find it?
THE COURT: That question is fine.
RICK HUBBARD: But I need to preface it, why are you looking for this? And then -- because I know this is an ultimate --
THE COURT: Now, why do you got to ask him that question, why are you looking for it? Doesn't everybody know where they hide the gun? It's underneath the sofa. I mean --
RICK HUBBARD: I would like to think that, Judge, but I can't assume that in a case like this.
THE COURT: No, but you can argue it. You can argue, the reason they asked these questions is they wanted to know if he knew and they asked did he run, did he hide, did he lie, did he cheat and steal, whatever. I think you've got that in argument, but you don't have to ask him, since y'all were looking to see if he knew morally right from morally wrong or legally right from legally wrong, y'all asked these questions. Don't they ask them in every case anyway to see if the guy ran?
RICK HUBBARD: And sometimes we preface why, what does it show you?
THE COURT: Let's --
RICK HUBBARD: I'll make it easy for you --
THE COURT: Let's don't do it in this case because of the defense they pitched out. Every other case you've ever tried, it hasn't been here with that.
RICK HUBBARD: I tell you what, I will do my best.
THE COURT: Okay.
RICK HUBBARD: And Your Honor knows I'm kind of walking on eggshells because they got brickbats behind me.
THE COURT: Yes, I understand.
ROBERT MADSEN: And that's obviously witnesses give facts, not opinions. Certainly, if it was regular run of the mill murder trial, they couldn't say hey, he did this because that shows he's guilty.
RICK HUBBARD: What time is Your Honor looking to break?
THE COURT: About ten after 5:00, in about 30 minutes.
RICK HUBBARD: I'm going to be a while. I don't know if you want to do this now or if you want me to regroup.
THE COURT: Let's try to get through what you can.
RICK HUBBARD: Because I'd hate to have to pick up cross again. I'd like to be done.
THE COURT: Yeah. Let's get them back in here and go for about 20 minutes and see where you are, if you're at a breaking point and still need to go further. We'll stop at 5:00, how about that. Get me the jury. (Whereupon, the jury came into open court at approximately 4:40 p.m.)
THE COURT: Okay, folks, I'm going to be concise in my instructions. The last question was a little bit in-artfully made. The last answer is struck from the record, so please disregard it. Y'all are going to answer questions of fact at the very end. There's going to be several. Lay witnesses are not allowed to give you the answers to the questions y'all are going to answer. So the Solicitor is going to rephrase his question to the Detective and we're going to move on from there.