3.State Rests and Cocaine-Testimony Ruling
59 linesRICK HUBBARD: Your Honor, we move to incorporate Dr. Frierson's testimony as to reply to Dr. Dorney's.
THE COURT: Fair enough. We'll do that.
BOYD YOUNG: They're going to replay his --
THE COURT: No, they're incorporating it, just by reference.
RICK HUBBARD: At this time, the State rest.
THE COURT: Very well. All right. Y'all step in the jury room. We'll take about 15 minutes. We'll have you back in here shortly and I'll find out what we're going to do next. Okay. So don't discuss the case and I'll have you right back out here.
(Whereupon, the jury was excused from the courtroom.)
THE COURT: (Whereupon, Court's Exhibit 104 was admitted into evidence.)
THE COURT: Both parties have asked about the 2001 arrest and conviction for cocaine, rock cocaine, the weight. It was characterized in the question by the prosecution as a heavy cocaine user or heavy crack cocaine user. No corrective instruction was given then. I'm not going to comment on the law in front of the jury. Either party can use the report that's in evidence as to what the drug was and how much it was. The State is not going to utilize any large adjectives in the cocaine use. That was inadvertence and unintentional because they were not apprized of the analysis at the time from what I remember.
BOYD YOUNG: Your Honor, the Defense would object that the lab report indicated that powder cocaine on the police report said two small rocks--
COURT REPORTER: Can we get quite back there. Boyd, can you start over.
BOYD YOUNG: The Defense would object. There was a police report that indicated two small rocks of cocaine were found in possession of Mr. Jones when he was a passenger in a car and indicated that the driver of the car had asked him to hold it because his license was suspended and he believed that he was going to be searched. Mr. Jones had that in his possession. It was later sent to a lab and tested positive for powder cocaine. The State's assertions that Tim Jones was a heavy crack user are false and are a mischaracterization of evidence they knew or should have known at the time and their failure to correct it deprives Mr. Jones of a fair trial under the Sixth, Fourteenth Amendments to both the United States and the reciprocal portions of the South Carolina Constitution. We believe the case is -- the United States Supreme Court case of -- on the duty of the State to correct false or misleading testimony.
THE COURT: All right.
RICK HUBBARD: For our response, we had no test analysis from Illinois from this arrest. The arrest record had rock cocaine, so there was a reliable basis to ask the question. The record is also replete with the fact that his drug of choice was cocaine. So if there's any misimpression, it was purely unintentional. And I don't know how else to fix it, I just don't.
THE COURT: The record is made, stop. The issue is on the record and protected.
BOYD YOUNG: Can we say what number Court Exhibit the report is?
THE COURT: I don't know which one it is. If you find it, Joy, we'll identify it. The police report.
RICK HUBBARD: I think the only other thing, Judge, is you want to have them disregard the question and answer without commenting on it. That's the only other thing I know to do.
THE COURT: I mean, do y'all want to do that?
BOYD YOUNG: I don't think that fixes it. I think that's a step.
RICK HUBBARD: If I can make this on the record. I do offer this, that if the Defense would like us to disregard both the question and the answer, we would be fine to do that.
BOYD YOUNG: Any questions and answers regarding Tim's a heavy crack cocaine user.
THE COURT: Do you want that instruction?
BOYD YOUNG: I can't object to that instruction, but I don't think the jurors -- and I would object afterwards.
THE COURT: Okay, then I'm not going to give it then because of that.
BOYD YOUNG: Okay.
THE COURT: And I wouldn't either. If I was in your position, I wouldn't want it mentioned again. I'd hope they've forgot it. I mean, that's kind of the position you're in.
BOYD YOUNG: Right, but I don't want it --
THE COURT: You've made your record as to it's an error, if it is, if I'm wrong, but if you want me to -- a curative instruction, I'm not.
BOYD YOUNG: I do want a curative instruction, but I'm just going to object anyway, so I don't want to say that --
THE COURT: We're still in here. We're still conducting business. Y'all have got to quiet down.
COURT REPORTER: Go ahead.
BOYD YOUNG: I did request a curative instruction. I would object -- I would maintain an objection after the curative instruction. I don't want to waive the issue by saying I don't want a curative instruction.
THE COURT: Okay. Right. Okay. Fair enough. I'll give a curative instruction and you can do that. I understand what you're saying. It's not going to be sufficient to fix the errors is what you're going to say, so therefore --
BOYD YOUNG: Right. Or you can say I'm not going to give it anyway and you're still protected.
THE COURT: Which way do you want it? I'm giving you your choice. I'll do it either way. I'll give a curative instruction and then you'll be protected on the record that you don't think is sufficient or I won't give it and you're still protected. Your choice.
BOYD YOUNG: We'll take it, we'll take the instruction.
THE COURT: Good enough. My instruction will say there was a question asked of -- who was it?
BOYD YOUNG: Dr. Wood.
THE COURT: Dr. Wood about a prior conviction and use of cocaine. He was characterized as a heavy user of crack cocaine, that testimony should be disregarded and not considered in deliberations. Something to that effect is what I'm going to say.
BOYD YOUNG: Yes, sir.
THE COURT: Fair enough. All right. What you got?
SHAWN GRAHAM: We need to add something on the record, too. When Dr. Frierson was testifying, I introduced State's 204, which was a list of his sources of information --
THE COURT: I thought we redacted some of it or something.
SHAWN GRAHAM: Correct. Mr. Young wanted to go back and look at it and he has suggested and we have made the appropriate redactions. So now, 204 is a redacted copy and 102 for Court's ID is actually the unredacted copy.
THE COURT: Fair enough. That's a good record.
CASEY SECOR: One last thing for the record. Is that okay?
THE COURT: Yeah.
CASEY SECOR: I just want to renew our objection to not being allowed to go into further questioning with Dr. Kruse about her data.
THE COURT: And all the data is 104 Court's Exhibit now.
CASEY SECOR: Yes, sir. And the questions about specific questions.
THE COURT: I think the State objected to it, too, but I told y'all pretrial nobody was going into the data and y'all didn't. Thank you for following instructions. (WHEREUPON, Court's Exhibit number 102, 105 and 106 was marked for identification only.)
THE COURT: We will take our lunch break, the jury is taking theirs now.
(WHEREUPON, a lunch break was taken.)
THE COURT: Solicitor, you ready?
RICK HUBBARD: One moment.
THE COURT: Okay. (Whereupon, the jury came into open court at approximately 12:55 p.m.)
THE COURT: All the evidence and testimony has been presented. Everybody's done. What's left to do now? The State's going to summarize its position, closing argument, if you will, then we'll take a break, 10 minutes, 10, 15 minutes between the State getting finished and then getting their exhibits and then Defense will have their opportunity summarize their position, also. Take another short break and I'll give you my instructions. Okay. Now, the lawyers and I -- the reason I was late leaving for lunch. The lawyers and I discussed the basics, details of my instructions to y'all, so they kind of know what I'm going to say. And they may say the Judge is going to instruct you. They're allowed to do that. But I'll give the instruction again. So my instructions, y'all have a copy of in the jury room during deliberations, so I'll tell you that now. You don't have to memorize all the law. Y'all actually don't have to memorize all the evidence because you get it, too. So with all that being said, I'm going to sit down and let Solicitor Hubbard.
BOYD YOUNG: One issue, Your Honor. (Whereupon, a bench conference was held in the presence of the jury but out of the hearing of the jury.)