2.Mistrial Motion over Jury Access to Blu-Ray Evidence
111 linesTHE COURT: And TD Bank, four things. So it appears they restricted the search to the dates that were presented in testimony regarding the actual incident of August 28th. If that's all they searched, I don't see any other error for them catching, sensing, searching any other type of information. Mr. Young, I'll hear from you, if you want to --
BOYD YOUNG: Your Honor, we'd move for a mistrial. They had a disk that had a lot of inadmissible information on it. We were unaware that they had been provided with a Blu-Ray player to look at that information. As soon as we discovered that, I came up and found Your Honor in the hall and told you they didn't have a Blu-Ray player. Then I called -- I had some more questions and I called Mr. Graham. He said he heard something about a Blu-Ray player. Then we talked to Your Honor's law clerk, Whitney, she said she had taken them a computer. She didn't know about a Blu-Ray player. And then at some point in time, it was discovered that somebody from the Solicitor's Office had given them a Blu-Ray player. We knew the only Blu-Ray disk in evidence was the phone extraction. Mr. Graham and I thought that it had been marked for identification and not entered into evidence because we knew --
THE COURT: Off the extraneous information.
BOYD YOUNG: Extraneous and inadmissible information. The jurors had it. I understand what the jury says that they have looked at, but the fact that that has been in their possession for most of the morning, we would necessitate a mistrial.
RICK HUBBARD: Judge, my response to that is, the Blu-Ray player itself is not what had the date on it. There's an item that, even if the parties thought it was ID, it was marked evidence. So when the evidence went back, that was one of the items that went back. There was not a player. Apparently, as I understand, a SLED agent said that they needed a Blu-Ray player. The Blu-Ray player, again, is just the device you play the evidence with. But the IT guy who's on the jury, Mr. Lewis, made it clear that the only items he pulled is exactly what they saw in court. So it's four things that he discussed that Your Honor repeated, the American History X, the medical school stuff, the -- I think the extradition information and then --
THE COURT: The bank.
RICK HUBBARD: The bank, TD records.
THE COURT: The bank records.
RICK HUBBARD: So that was it. So I think although there could be a lot of concern and fear that that disk was back there, they made it clear -- this is the guy that actually pulled it for the jury, as a Juror, that's all they looked for, all he looked at. There's no prejudice.
THE COURT: I'm relying on what that Juror told me and what Ms. Miller told me. Their responses to my question were consistent, it was the August/September timeframe from Ms. Miller, a little more detail from Mr. Lewis. My questions were specific enough that I'm comfortable that's all they looked at, was August/September and those four subject matter of facts, being banking records, extradition laws, the American X video and the --
RICK HUBBARD: Medical school.
THE COURT: -- medical school. And those were all discussed in the courtroom during testimony. And Mr. Lewis also responded as the information we looked at was consistent with what we saw in the courtroom. I don't believe they looked any further than that because they had no reason to be curious about anything further than that because they've got so much information there. So I don't see any harm. I think it's a discretionary call. I may be wrong, but I don't believe the jury considered, discovered, looked at anything further than what was described by Mr. Lewis.
RICK HUBBARD: I would ask that what was previously marked as State's Exhibit 33A be remarked as a Court's Exhibit for the purposes of the record so it doesn't go back. They already have the printout on those items, so I think -- for what was already offered and what they saw. So that way it will correspond, the Court will know on appeal. But I don't see any prejudice either, Your Honor.
COURT REPORTER: You want to mark that as a Court's Exhibit, Judge?
THE COURT: Just leave it like it is for the time being, but I think if --
RICK HUBBARD: I didn't know if we needed to identify to that so -- in the mix.
THE COURT: I think we can hold it here. 33A stays here for the time being. All right. Mr. Young, you have something else?
BOYD YOUNG: Your Honor, I was just going to make this -- this is a clean copy of the extraction report without my notes on it. Of course, the extraction report -- there's a lot more information on here. This is just records that the State identified and selected and these are the records --
THE COURT: That's 32, isn't it?
BOYD YOUNG: I never moved it in because it has all the stuff that we were worried about that was inadmissible in it.
COURT REPORTER: You're saying it's Defense 32?
THE COURT: No, he never moved it in. I thought it was something else.
BOYD YOUNG: But just for the appellate record, this -- I'm trying to get the State to confirm that this is the copy I used for cross that --
THE COURT: This is a printed-out version --
RICK HUBBARD: See, I've never looked at the printed version, so I don't know.
BOYD YOUNG: These are the records that was used for the cross-examination of Mike Phipps. This is the extraction report where the State selected records and these are the records that they provided to Dr. Frierson.
THE COURT: Why do we need that versus this for this issue?
BOYD YOUNG: We don't, but that is hard to find. And on this, you can go to June 20th dates where there's the kids being sexually abused.
THE COURT: This is a subset of this? This has more information?
BOYD YOUNG: Yes, sir.
THE COURT: Okay. So the paper version is the phone extraction report, CD or DVD is the full extraction?
BOYD YOUNG: Yes, sir.
THE COURT: Digital information?
BOYD YOUNG: Yes, sir.
THE COURT: Okay. I understand. So this may be easier to refer to on the record from hence forward about what you may be concerned about, but --
BOYD YOUNG: Right.
THE COURT: -- we don't have anything else other than what Mr. Lewis and Ms. Miller told us.
BOYD YOUNG: Right.
THE COURT: Okay.
BOYD YOUNG: And I'm just asking to make this a Court's Exhibit so I can make it part of the record to show what the impression was that we had --
THE COURT: We can do that.
RICK HUBBARD: Should we go ahead and put a Court Exhibit on this as well so it corresponds to this?
THE COURT: I think so.
RICK HUBBARD: Can we do that?
THE COURT: I think we can do it as a Court's Exhibit here first and here second. So what are our two next numbers, Joy?
COURT REPORTER: 108 and 109.
THE COURT: All right. 108 is going to be the disk that was admitted and then 109 will be the extraction report, which is a portion. Do y'all want to cut out this digital information or printed information consistent with what we've already admitted and give it back to the jury?
RICK HUBBARD: I think this is fine like this since they have a printed version.
THE COURT: Oh, they've got a printed version of it?
RICK HUBBARD: Yes, sir.
THE COURT: Okay.
CASEY SECOR: Are we positive they have a printed version?
RICK HUBBARD: That's what they said they couldn't read. That's why they wanted to see this.
CASEY SECOR: Okay.
RICK HUBBARD: That's what we put in. I can't talk to a Juror, but I mean, I think what I heard them saying is that's why they wanted to pull this up to read it. So they had what was already admitted, the paper version -- remember what we had up on the big screen --
CASEY SECOR: Right.
RICK HUBBARD: And that's when he said that's exactly what they looked at. (WHEREUPON, Court's Exhibit numbers 108 and 109 were marked for identification only.)
RICK HUBBARD: We need a printed portion of State's 33A, Court's exhibit whatever.
THE COURT: This is an extraction, that is an extraction report. It is different.
BOYD YOUNG: Now, the only thing that they don't have is the material that the Defense used in cross.
THE COURT: Get something to give to them if you want. A substitute, a redacted portion of this.
BOYD YOUNG: Let me hold--
THE COURT: If you can do that, that was kind of my question.
RICK HUBBARD: What did you use, did you put something in. You didn't put anything in in cross, right?
BOYD YOUNG: No.
THE COURT: Right, because he had it on the disk.
BOYD YOUNG: Right.
RICK HUBBARD: So you used that disk--
THE COURT: He used that to cross, that was how he was questioning.
RICK HUBBARD: I got you.
THE COURT: Boyd needs to come up with a substitute piece of evidence, we will stipulate goes in, which represents 33A redacted.
RICK HUBBARD: My concern is now putting something in. I don't remember how it was used, if a physical object wasn't put in, I mean--
BOYD YOUNG: No, I just showed it to them--
RICK HUBBARD: I don't think that gets to come in. You brought it out so they know there was a cross. They heard what you were going after. I think if you put an item in now, we have got another issue.
THE COURT: We might. Anyway, I am going to tell them, if he has a proposal to substitute in the 33B for 33A, a redacted version of something, whether it is a printed out or a digital copy. I am not opposed to hearing that.
RICK HUBBARD: Right. I got you.
THE COURT: Boyd, if y'all want to think about that for a few minutes.
BOYD YOUNG: Basically we just have to take the scissors to this thing and cut it out.
THE COURT: Okay. All right.
(Whereupon, a short break was taken.)
THE COURT: Mr. Young.
BOYD YOUNG: Judge, this is a copy of the pages that were shown to the jury during my cross-examination of Mr. Phipps regarding the phone records and what we showed the jury during that cross-examination. The Defense would -- based on the earlier error, we think that this should be admitted and sent back to the jury.
THE COURT: As a substitute for 33A?
BOYD YOUNG: Yes, sir. In addition to -- I mean, they already have the --
RICK HUBBARD: I have not looked at it. My problem is sending something back to the jury now. They've said what they've looked at and they moved on. My suggestion would be this, what's in is in. We've pulled out that disk. If they have anymore questions about items on it that they want to look at, they be directed to come -- let the Court know, come out into the courtroom so we can make sure we can navigate exactly what they want. Otherwise, I think they've already said what they've looked at. They said it was what they saw in court. Whether it was Defense or State, they didn't say. So they may very well have looked at what the Defense crossed on as well. Otherwise, I think we're putting something in after the case has been closed. That would be improper.
THE COURT: This is a portion --
BOYD YOUNG: Of Court's --
THE COURT: -- of the 33.
RICK HUBBARD: Shawn, I'll let you speak on that.
SHAWN GRAHAM: If I understand and assume, I'm assuming here, 103 for ID is the report that you asked Rhonda to run for you.
BOYD YOUNG: It's the one that y'all sent to Frierson.
THE COURT: They've been calling it the phone extraction report as opposed to the disk as the entire phone extraction.
SHAWN GRAHAM: So if that's the one -- what does it have--
RICK HUBBARD: Hang on, Shawn, here's Rhonda. She can take a look at that. We are on the record, Rhonda. So if you can look at that and then you tell us.
RHONDA: If this is what was sent to Dr. Frierson, this would have been things that I tab'd and Shawn tab'd in a timeline.
RICK HUBBARD: Is that what you did for him, Rhonda?
RHONDA: Some of this looks familiar, some of this does not look familiar of things that I would have tab'd. I know that Boyd came over to our office and asked for a certain date range because he couldn't get the reader to work. And I printed out him a section of what he asked for.
SHAWN GRAHAM: But that is now what you are saying this is.
BOYD YOUNG: No. The dates that were printed, y'all have had two reports that were sent to Frierson. One was this extraction report and then there was a second report that was from, I think it was August the 24th through the 6th.
RHONDA: We sent Frierson things that were tab'd, a timeline for the dates of August 28th through September 6th and we tagged things that were also beyond that. I don't remember sending him a separate timeline of that. I don't remember doing anything -- we only worked that stuff through the 6th.
BOYD YOUNG: I never got it to -- it was never tagged in the record so if y'all didn't do it, that is why I came to your office.
RHONDA: I have not tagged anything that went back other than 2014. Anything that I tagged that went to Dr. Frierson was a week prior at the most, a week prior to -- a week after.
RICK HUBBARD: What I still suggest, they've told us what they've looked at exactly. If they have any other issues or questions or they want to see something, we still have it. It's out here so the Court's now in control of it. They can let you know, Your Honor, what they want to see. We can make sure it's queued up so they don't see anything else. I think putting in what the Defense pointed out, that was never part of the problem. That's just going to muddy things up. It may get them to elicit additional questions about -- because we don't know what they looked at. You know, as far as from the Defense perspective, State perspective, we don't know what their question was, why they were looking. So I think it just creates an issue that's not there. That way Your Honor stays in control.
THE COURT: Shawn, you review what Boyd's pulled out, but for the time being -- until they ask us for something, we're going to sit on it. Like, they may ask. They know we have it, so if they need to see it again, they can ask and we can tell them that. So we're going to keep it here just since there was other information that's not been redacted. If they want to see more of it, we'll show it to them, perhaps, through this method. But until they ask, we don't give it to them.
BOYD YOUNG: Do we send a note back saying if you want to look at anything else on --
THE COURT: I think that would be appropriate, sure.
BOYD YOUNG: 33 is available to you in court?
THE COURT: Yeah.
BOYD YOUNG: I need to renew the motion for a mistrial.
THE COURT: Okay. Consistent with my ruling, I think -- which I believe is proper considering what I've been told by the jurors, I'm respectfully denying it at this time with respect to sending a note saying we're going to hold 33 Exhibit and the Blu-Ray player. If they want to hear more, see more, we can respond to it the old-fashioned way, bring them back in the courtroom as a group for replay and that is what we will do. Whitney, fashion me up a note for the jury that says, if you need to review any further information on Exhibit 33A please so advise by note. And we'll mark this as a Court's Exhibit. (WHEREUPON, Court's Exhibit number 110 and 111 were marked for identification. Jury note for extraction.)
(WHEREUPON, a lunch break was taken.)