1.Hearing on Limiting Instruction for Dr. Frierson
101 linesMay 30, 2019
THE COURT: I want to deal with the video that I was perusing yesterday afternoon first. This is two videos, it's one of -- I don't know, one is about 10 minutes. It's the pinata and the kids are at -- looks like a birthday party with somebody and the SpongeBob Squarepants pinata.
CASEY SECOR: Yes, sir.
THE COURT: And the other one was, I don't know, minute maybe swimming, two children, with Tim, Sr.
CASEY SECOR: Yes, sir.
THE COURT: I think it's redundant. I don't think it adds anything that you haven't already presented through your other exhibits. And so I don't think -- I think it's duplicative. I don't think it adds anything for you. Certainly, it's similar to the other evidence you've already presented with the photographs showing a very good home recreation of the grandkids and Tim, Sr. It's very representative of that, but I think you've got representations of that throughout the record and throughout his testimony. I don't see any benefit in the jury seeing it.
CASEY SECOR: I understand that. I just respectfully request that you note our objection to the Court's ruling on that.
THE COURT: Now, so that would end Tim, Sr.'s testimony. He was still on the stand when we adjourned yesterday, correct?
CASEY SECOR: Yes, sir.
THE COURT: Okay. What's y'all's plan this morning? I know there was a memo sent to me or handed up, I read that.
BOYD YOUNG: Yes, sir. There's a motion from the Defense to issue a limiting instruction prior to testimony of Dr. Frierson. In addition to the authority and case law cited in our motion, I would point the Court to the form order issued by the South Carolina Supreme Court, which can't be -- which in and of itself says it shall not be altered or amended. I don't have a copy of the signed order for Dr. Frierson, but the order authorizes the State to conduct a criminal responsibility evaluation that says that the report shall be inadmissible in any other proceeding except as expressly permitted by South Carolina law. Examiners and agency staff may not be compelled to testify regarding statements made --
THE COURT: You're going fast.
BOYD YOUNG: I'm sorry.
THE COURT: Tell me what you want to say, I mean, without reading that.
BOYD YOUNG: Dr. Frierson's testimony is not admissible for any other purpose other than --
THE COURT: Do you intend on calling him?
BOYD YOUNG: Yes, sir.
RICK HUBBARD: I've got a proposed instruction for you. I've got instruction that conforms to requirements of the law.
BOYD YOUNG: I disagree.
THE COURT: Go ahead with your argument. You want to call him for the limited purpose of?
BOYD YOUNG: To determine criminal responsibility. And the jury should be instructed that the only admissible purpose and the only consideration they can give to his testimony would be as to the determination of criminal responsibility. And that would be the entirety of his testimony, it can be only be considered -- when a defendant claims not guilty by reason of insanity, they necessarily give up certain rights, one of which is they're compelled to participate in State or Court ordered evaluations.
THE COURT: Right.
BOYD YOUNG: Those evaluations are limited in scope and purpose to determinations of criminal responsibility and are not admissible for any other purpose.
THE COURT: What do you anticipate the other purpose being?
BOYD YOUNG: I anticipate the State saying, we move his testimony in at penalty, if we get there. And that would be the inadmissible purpose of Dr. Frierson's testimony. So the jury should be given a limited instruction that they're only able to consider his testimony as to the issue of criminal responsibility.
THE COURT: Okay. I see what you're saying. Solicitor -- I mean, it seems like it's premature, but if you're not going to get a limiting instruction, then you're not going to call him, is that you're telling me?
BOYD YOUNG: No, I think the limiting instruction is required by the court order.
THE COURT: I mean, I don't disagree with you in substance, I don't. I mean, I think there needs to be a limiting instruction, but why are you telling -- arguing right now that that's his purpose, saying he can't testify later?
BOYD YOUNG: The limiting instruction should be told to the jury now, that his testimony is only available for the purpose of determining criminal responsibility and not for any other purpose.
THE COURT: All right. And the State's limiting instructions goes towards that.
BOYD YOUNG: The State says that only the statements from the Defendant should be limited. Dr. Frierson, of course, in conducting his evaluation spoke with numerous other people and conducted a social history, which is important --
THE COURT: I mean, the jury has got to know that he talked to everybody he could find, he didn't just talk to one person. I mean, doesn't he have to -- I mean, you can't just say all right, what was the end result. I mean, you can't just start at the end of the line, right?
BOYD YOUNG: Sure. But his testimony can't be used to impeach those people. His testimony can't be used to say well, didn't somebody tell you something different? He's allowed to talk to those people and form his conclusions. But it's inadmissible to use his testimony to try to impeach any prior witnesses or to use it for any other purpose at some other phase of the case.
THE COURT: Solicitor, what do you --
RICK HUBBARD: Severals things here. There was so much there, so if I miss something --
THE COURT: I kind of didn't expect that, I guess.
RICK HUBBARD: First of all, we've never intended on bringing him up in a penalty phase should we get there. He was ordered in to do a diagnosis, does he or does he not --
THE COURT: In his professional opinion have --
RICK HUBBARD: Right, on two issues.
THE COURT: That was his tasks, two tasks.
RICK HUBBARD: Two issues, whether he's not guilty by reason of insanity, knows the difference between right and wrong. And the second was capacity to conform, which they want to say he can't even offer an opinion on. The problem is this, this limiting instruction goes to statements of the Defendant. The only one whose rights are in play here is the Defendant's. He waived his Fifth Amendment right for this purpose of submitting to Dr. Frierson. What the jury needs to know, whatever statements he made to Dr. Frierson don't go to the issue of, basically, whether he's guilty or not. They can't be used substantively, but they go to the issue and can only be used for the issue of did he know the legal or moral difference between right and wrong and did he have the capacity to conform his conduct to the requirements of the law. And that's all Frierson is going to be offered for. Now, as far as what other people told him, it is critical to know what information was given to him because if information from those same people are given to -- different information from those same people to another expert, I can ask those experts about that. He didn't tell you -- or you weren't provided A, B, and C? That's just cross. You know, did you not have sufficient information? Because, as you know, psychiatrists always get as much information as they can, but, ultimately, their opinions are based on their interaction with the Defendant, with the suspect as they question him. So all that's open. It's the Defendant's statements that are in play here. And this instruction addresses the totality of that.
THE COURT: All right. You're saying what information to be given and Mr. Young is saying used to impeach other witnesses. That's a different characterization. I think y'all are saying the same thing.
BOYD YOUNG: I think that everything Frierson did is limited and can only be used by the jury to determine the issue of criminal responsibility, not guilty by reason of insanity, guilty but mentally ill, guilty, not guilty. But they can't use anything that he did for any other purpose --
THE COURT: How is it prejudicial for another purpose if Dr. Frierson was told by -- the only example I can think of. Dr. Frierson was told that Tim was taking Chantix. Then someone else said, well, he bought 18 packs of cigarettes on the seven days after the event. So he's taking Chantix or smoking cigarettes. Which were you told? Which do you assume? Why is the jury not able -- why is that not relevant to how he formed his opinion as to Tim's condition?
BOYD YOUNG: Here's what happened is that the State impeached Tim's grandmother with statements that she made pursuant to the social history questionnaire sent out by Dr. Frierson. And that was an improper use. And I didn't object, wrongly didn't object. But that's the situation where the State should not -- they can't use Dr. Frierson to impeach other witnesses.
THE COURT: I don't think they're -- I mean, you're calling him. I don't think they're going to do that. They're just going to make certain it's clear -- or as I understand it, I think the only thing they're allowed to do is make it clear what Dr. Frierson based his opinion on, not another statement. I think that's where I'm kind of -- I agree with you, but you're losing me in your argument as to impeaching other witnesses. As long as it's clear what he was told and what he based his opinion on, then that's what he based his opinion on. If he was given something that differs from someone else, then that's just part and parcel of the whole case.
RICK HUBBARD: Judge, if I can interject at this point. I think whatever Dr. Frierson sees as relevant coming from the Defendant for his diagnosis, he's got to be able to testify about that. That's what he does as a professional. The Court has always let doctors do what they think they have to do as professionals. The information he's given comes from both sides, he's going to say that. He's a neutral party. Whatever he hasn't been given, he can be confronted, well, did you not know, did you not know. As far as other witnesses, Judge, no one else testifying has a Fifth Amendment right. So grandmother, we can -- we're not limited in our cross. That has nothing to do with the Defendant's rights, which he waived sitting down with Dr. Frierson by asserting the not guilty by reason of insanity. Dr. Frierson should be able to give a full and complete report, why he gave it, and whether he deems as an expert was necessary to reach it. Anything else, absolutely hobbles him. And then, frankly, Judge, we're not putting up experts. We're relying on his good, honest, neutral opinion. And what the Defense wants to do is say let's limit him, so, therefore, the State's hobbled. And it's here we are in the third week, into the third week oh, can the State go hire a witness. Oh, no, you can't because you didn't do that. We didn't need to.
THE COURT: Okay. Let me come back to Mr. Young. Mr. Young, how do you envision --
BOYD YOUNG: We're not asking to limit his testimony in any way. He can testify to his evaluation, what he relied on, the information that he collected as part of the process of his evaluation, that he reached out and talked to other people, all the records that he collected, that's fine. He can testify to that fully. That's not the purpose of the limiting instruction. The purpose of the limiting instruction is to inform the jury that this testimony is only admissible for a very narrow purpose, and that purpose is for the determination of not guilty by reason of insanity. They can't use it for any other purpose.
THE COURT: All right. What other purpose --
BOYD YOUNG: Malice, they can't use it to determine malice.
THE COURT: Not to comment on the facts in front of the jury, but he doesn't need to comment on malice.
BOYD YOUNG: He doesn't.
RICK HUBBARD: And that's what -- but what the Defense is leaving out, his conclusion wasn't just as to not guilty by reason of insanity. You instructed him and asked him, as an expert, to also address his capacity to conform, that was addressed. So that is also in here limited. So what we've asked -- and it's directed to the jury. They can take whatever he says and consider it on those two issues. Because those are -- you've let this jury know there's four verdict forms, four possibilities. To say that they can't consider guilty but mentally ill and that Dr. Frierson can't even render an opinion on that.
THE COURT: Wait, y'all can -- in your closing instruction can say, we don't think not guilty is even on the table because we, more or less, had to admit the act. I don't know whether you argue that or not, but I don't think I can instruct the jury on that because that's me commenting on the facts. I think I've got to say the State has the burden of proving beyond a reasonable doubt this, this and this. The inference of the not guilty by reason of insanity plea, then places the burden upon the Defense for a preponderance to show the greater weight of the evidence is whether or not his capacity to conform, knowing legal right from wrong, that issue brought up.
BOYD YOUNG: What I'm trying to do, Judge, is that the jury needs to be told, prior to hearing from Dr. Frierson, that his testimony is only admissible for a limited purpose. That way, before they hear it, they know how to appropriately use that information. If we wait until and if we get into a penalty phase and say all right, well, now, you can't consider Dr. Frierson's testimony anymore, then it's too late. They need to be told that beforehand.
RICK HUBBARD: And I'll agree. I think if you read this before he testifies and then read it with your jury charge. Dr. Frierson is not coming in on the penalty phase. He is for this phase.
THE COURT: So does that help you, Mr. Young, if he's telling you he's not going to call him in the penalty phase?
BOYD YOUNG: Or rely on anything he did.
RICK HUBBARD: That second phase, don't rely on what he did. Here's the one issue. Now, if we get into the penalty phase and they start bringing up schizophrenia again and we've already shown by expert testimony that was not in play, we might -- if they bring it up, I might be sitting down with you, Your Honor, and we might be revisiting that. We have no intention of going there. We have no intention. This is really a guilt phase issue. So I'm fine with this instruction before Dr. Frierson testifies. I'm fine with this instruction when you read it -- the jury charge to the law. It can even go back with them.
BOYD YOUNG: The State just explained what the problem is, is that they can't use Dr. Frierson to challenge schizophrenia at penalty.
RICK HUBBARD: Actually, that's not -- Dr. Frierson --
THE COURT: We don't have to get there today.
BOYD YOUNG: We don't.
THE COURT: I think if Frierson is going to testify and you're going to call him, limiting instruction to him is look, he's offered. He was assigned by the Court to do an evaluation of Mr. Jones. He's done so and he's issued two opinions, ability to conform and morally right from wrong. He's issued those two opinions. He can testify to that end and that's the consideration for the jury. That's all for their consideration, tell them ahead of them.
RICK HUBBARD: Right. What the Defense is saying, though, would still hobble him. He had to address was there psychosis. Was there a psychotic episode, whether it's schizophrenia or something else? Because that had a direct bearing on his ability to determine -- the Defendant's ability to determine right and wrong and, also, his capacity to conform. So to say that we can't bring that up is to tell Dr. Frierson, I've assigned you to do a job, but you can't talk about it. So he needs to be able to do what an expert does. That limiting instruction will tell the jury how they can use that information and we're good.
THE COURT: I think we're on the same page.
BOYD YOUNG: The State is trying to show you one thing and say another. They can't use anything Dr. Frierson said at any other part of the case.
THE COURT: And they're telling you they're not going to unless you create an issue that they don't anticipate.
BOYD YOUNG: I understand that his opinion is that Tim's not schizophrenic, I get that, and he's going to testify to that. But the jury has to be told prior to hearing that that they're only allowed to use that opinion for the purpose of determining criminal responsibility.
RICK HUBBARD: And capacity.
BOYD YOUNG: Criminal responsibility is capacity.
THE COURT: So what other purpose would he be offered for?
BOYD YOUNG: To say -- they would offer him at a later stage of the trial to say -- to challenge a finding of schizophrenia.
RICK HUBBARD: Your Honor, if --
THE COURT: How can you offer that after this stage is over?
BOYD YOUNG: Well, schizophrenics can still be criminally responsible.
THE COURT: I understand. But if you get to the penalty phase, we get there and you offer he's schizophrenic, isn't that -- hasn't the jury already made that determination, answered that question of fact?
BOYD YOUNG: No, sir.
THE COURT: How have they not?
BOYD YOUNG: Because schizophrenic doesn't equal criminal responsibility. You can still be schizophrenic and you can still be mentally ill and be criminally responsible. The State has already brought that out.
RICK HUBBARD: Judge, I think if that issue comes up at that time, we can address it.
THE COURT: Yeah, I think we can address it then. I don't think --
BOYD YOUNG: I can't address it then before Dr. Frierson testifies. I mean, that's what the court order says. It says it's not admissible for any other purpose.
THE COURT: From what you're telling me now, I agree with you. He can be offered for a limited purpose and you're going to call him for the limited purpose of criminal responsibility and understanding right from wrong, legally and morally. He's going to testify today to that.
BOYD YOUNG: Right.
THE COURT: Let's do that. I think unless something really odd happens in sentencing, if we get there, then that would be a need for you to decide then. I don't think I can tell you now he's not going to be allowed to testify period because -- I mean, because I don't know what's going to come up.
RICK HUBBARD: Well, Your Honor --
THE COURT: What's going to prevent the State from calling somebody else to say -- I can't predict the future of what's going to be testified to in the penalty phase, if we get there, to say okay, he can't be called again period because the order says that. I mean, I don't know that I can do that.
RICK HUBBARD: And Your Honor may not even need to address the issue because what we do is we incorporate this first phase evidence into the second phase, that's always done, so that we can still use what he said without bringing him back and say here's what his determination was in guilt phase as to -- as to whether there was psychosis. The same is true with Dr. Kruse as to was there psychosis.
BOYD YOUNG: That's what they can't do.
RICK HUBBARD: Absolutely --
BOYD YOUNG: That's exactly what they can't do.
RICK HUBBARD: We'll address that later --
BOYD YOUNG: That's what the case law and the Court order prevents them from doing.
RICK HUBBARD: No. The case law says substantive evidence. You can't -- they can't find guilt or innocence based on Defendant's statements to Dr. Frierson when he's rendering an opinion. That's it.
THE COURT: All right. I don't have to make that decision right now.
RICK HUBBARD: No sir, that's right.
THE COURT: I can read a little more up on it. And that's what I'll do. I will give them the limited instruction right now like you're asking. I don't know if I'll read yours verbatim. When are you going to call him?
BOYD YOUNG: Second.
THE COURT: Second, okay.