2.Hearing on Prior Mental-Health Evidence
58 linesBOYD YOUNG: Your Honor, do you want to talk about the photographs or do you want to talk about the previous motions filed concerning Dr. Frierson and Dr. Kruse.
THE COURT: Let's hear about -- I mean, Solicitor Hubbard told you he was likely not going to call Frierson. So if he's going to call him, then maybe we know that first. If he's not, then maybe your argument is something I don't need to hear.
BOYD YOUNG: Well, it's not a matter of calling him or not calling him, Your Honor. And this is why we requested the limiting instruction prior to his testimony. It's because his testimony is only admissible for the purpose of deciding criminal responsibility or not guilty by reason of --
THE COURT: Yeah, but I don't have to rule on that if he's not going to call him, then that makes it easier for me.
BOYD YOUNG: Right.
THE COURT: Can we find that out?
BOYD YOUNG: Well, the State's going to say we readmit all the testimony and evidence from the first phase and that would -- we would ask the Court to say with the exception of the testimony of Dr. Frierson and Dr. Kruse, who were admitted for the limited purpose of deciding criminal responsibility, which the jury has decided. Their testimony is no longer relevant and is inadmissible pursuant to Your Honor's own order that Your Honor signed --
THE COURT: Some time ago.
BOYD YOUNG: I think May 25th, 2018.
THE COURT: Okay. If we say it's readmitted except for that, certainly, Judges are tasked with disregard any irrelevant testimony, you only consider relevant testimony when they're doing Judge only bench trials. You don't expect this jury to be able to discard all that testimony and not consider it at all?
BOYD YOUNG: I expect the jury to be able to follow the Court's instruction when they're told that that information was for a limited purpose of deciding --
THE COURT: I understand that, but they can't do that.
BOYD YOUNG: And they can't use it in any way, shape or form in the penalty phase and they certainly can't use it for aggravation.
THE COURT: I mean, I know you're saying that and I may instruct that but you don't realistically believe that they're going to say -- erase that and not consider it. It's -- I mean, they've got it in their head.
BOYD YOUNG: Well, I think if Your Honor tells them -- just like Mr. Jones' right to remain silent, it's something that you can't consider, you can't talk about, you can't use it in any way.
THE COURT: Let me hear from the Solicitor because I think that's an unusual request, also. Let me hear from him. If he's not going to call him, then it's just a matter of can I agree on the instruction.
RICK HUBBARD: Your Honor, the way it's always worked with these cases is you have that first phase, all of the evidence from the first phase is always carried into the second phase per statute, which is 16-3-20, section B. The second phase is about additional testimony. State v. Shaw, that old, old Capital case, Your Honor, when we were first getting Capital cases back in line, directly talked about that. Now, as to the issue of Frierson and Kruse, all that evidence comes forward. They don't forget their testimony. The thing about Dr. Frierson, you appointed him and tasked him with two things, determine whether the Defendant was criminally responsible and whether he had the capacity to conform his conduct to the requirements of the law. He testified to that.
But now, in the penalty phase, if the defense puts up a psychiatrist, psychologist that in any way implicates any of his findings because he had -- he had to determine if the Defendant suffered from psychosis, to determine if he suffered that night. If they open that door at all, I think I get to knock on Dr. Frierson's door. That's not my hope or my intent. I'd like to leave that man alone. He did a lot of work. He testified. Dr. Kruse, on the other hand, was brought in at the request of Dr. Frierson. She differed in this respect. She was not giving an opinion as to what happened on August the 28th of 2014. She was brought in to supplement and augment him, can you do scientific testing, neurological testing, neuro-psychological testing to determine whether this man has any organic cognitive deficits, whether he has any psychotic disorders. And, also, as you remember, we had the battle over personality testing. He wanted that full battery done.
All of that is still in play if they bring it up again. Because her findings say that it's not just that night, he has no psychosis whatsoever. He has no cognitive deficits whatsoever and he has a personality disorder that explains all the stuff they're trying to, I believe in this second phase, saying it is schizophrenia. We've been provided two reports from Dr. Maddox, used to be Dr. Schwartz-Watts. I think back in March of this year, she issued a report saying she diagnosed him with schizophrenia and she's been, basically, working with him since days after he got arrested. We didn't know if she was going to testify first phase or not. We had to be ready. I understand they're talking about bringing her up in this phase of the trial basically to say it's mitigating evidence. He has a mental illness. Well, I have direct testimony that contradicts that. And what brings Dr. Kruse to mind is this, she supplemented her report, Dr. Maddox did.
And now for the first time basically said she referenced Dr. Kruse's report, but she kept the same diagnosis. Did not explain anything about how she looked at Dr. Kruse's report. She's called it rightfully and -- on the floor, here it is. So if Dr. Maddox gets on that stand, I'm going to question her, what did you look at in Dr. Kruse's report. What, if any, way did you interpret that? How did it affect your opinion. Dr. Kruse will be a reply witness because of that. And Dr. Maddox will make that so because she says she has looked at, relied on and reviewed that analysis. There is no case, no law that says Dr. Kruse can't come in here and testify nor Dr. Frierson, for that matter. It's the same old rule that you've always had, is this proper reply. Was something brought up where the State has the right to reply. And right now, they're trying to shoot me down and say I don't have an expert and, Solicitor, you don't even know what Dr. Maddox is actually going to say. They can't do that.
THE COURT: Mr. Young, let me hear from you again.
BOYD YOUNG: Your Honor, they can call Dr. Maddox and talk to her if they want to. The order issued by the Court says that the evaluation report may be admissible as evidence in subsequent hearings concerning the Defendant's criminal responsibility and capacity to conform. However, 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 during the criminal responsibility and capacity forum examination or for any purpose other than on the issue of criminal responsibility and capacity to conform. Dr. Kruse was hired by Dr. Frierson as part of the Court's ordered evaluation and is subject to the same limitations and they're the same order. All of Dr. Kruse's findings relate directly to things that Mr. Jones told her in his responses to specific questions, all of which are inadmissible for any other purpose other than determining criminal responsibility, which the jury has already decided. They can't use it --
THE COURT: Well, here's what doesn't make sense --
BOYD YOUNG: -- they can't argue it --
THE COURT: Here's what doesn't make sense to me in what you're asking is, Dr. Maddox, come here and give your opinion and you base it on all these things, including Dr. Kruse's report, findings, testing, whatever, her stuff. If Dr. Maddox uses Dr. Kruse's report, what you're arguing is, that should be off limits to you.
BOYD YOUNG: Yeah, it should be off limits to Dr. Maddox. She shouldn't talk about it.
THE COURT: Well, what if she does?
BOYD YOUNG: She's going to be instructed not to. She's going to be instructed to say that --
THE COURT: I've already been told that she's already reviewed --
BOYD YOUNG: She has reviewed it. First off, we didn't get Kruse's report until after jury selection had already started in this case. So it's hard to imagine how she could have reviewed something in a report that she issued before the other report was even available. So to say well, she didn't review it and then she did review it is sort of, you know, misstated facts when it wasn't available to her until later. But just like Frierson had a list of materials, some of which were inadmissible. Those were redacted out and he didn't mention them. Some of Dr. Maddox's materials that she's reviewed are inadmissible, then we redact it out and she won't be mentioning it.
THE COURT: But if it helped her form her opinion, how is she going to discount them?
BOYD YOUNG: She can say I looked at a bunch of stuff, I've taken this out of account. I'm not using this stuff as relevant to my opinion. Your Honor, the case law -- the case order and what is available to the State and why they get to use the Defendant's answers in a criminal responsibility examination are clear. It is unmistakable. There's no leeway on it. It doesn't say, unless the State really wants to use it for some other purpose. It can't be used, period. That is the order. That is the order Your Honor signed.
THE COURT: All right. Quit blaming it on me.
BOYD YOUNG: Well, it's a form order by the South Carolina Supreme Court that says --
THE COURT: Well, you're blaming it on me. You kept saying you signed the order so uphold your own order. Well, what if it's allowed by other South Carolina law, which was the exception in there and I hear law that says okay, it can be used.
BOYD YOUNG: The South Carolina Supreme Court wrote the form order and said that it has to be used exactly as published without alteration or additions.
THE COURT: All right. But that seems kind of unfair to you and to the State that we can't utilize it for first proper purpose.
BOYD YOUNG: It was utilized first proper--
THE COURT: -- I guess you --do you have a case that says the State can't use it other than that form?
BOYD YOUNG: Other than this Court order?
THE COURT: Yes.
BOYD YOUNG: Nobody has ever tried to use it.
THE COURT: Okay. That's what I want to know. Because it's never been tried. You're trying to enforce it for the first time?
BOYD YOUNG: Everybody has understood that the order plainly says it can't be used for any other purpose.
THE COURT: Everybody is not. You said it's never been tried. I understand what you're arguing, but this case presented so many different nuances, like the gentleman that just stood up here and wants to argue to the jury on behalf of Tim, Sr. Never heard that before either. Have you?
BOYD YOUNG: Once.
THE COURT: Okay. Got one more than me, so you've heard it twice. The Solicitor has never heard it.
BOYD YOUNG: This case, in the presentation of the insanity defense, is a unique situation and that's why the State was permitted to conduct a criminal responsibility evaluation. But even the State in their own proposed limiting instruction proposed that Your Honor tell the jury that statements by Mr. Jones were -- to Dr. Kruse or Dr. Frierson were only admissible for the limited purpose of determining criminal responsibility. Her test results, her conclusions based on her test results are all directly from statements made by him. The State is not allowed to mention it, to argue about it or to bring it up in closings or to cross-examine with it. It's inadmissible for any other purpose now that the jury has decided criminal responsibility.
THE COURT: Solicitor.
RICK HUBBARD: Judge, when we got Dr. Frierson, his purpose, as you know, you know what it was for. He testified to that. We had the limiting instruction because of that. But they can't come in here now and have their expert agree or pick apart the different parts of what Dr. Frierson said in order to reach a conclusion and expect that he can't be called back to respond. There is no case that says they can do that. And then as to Dr. Kruse -- first of all, they didn't just get the report when jury strikes were going on. It was issued back in March. She supplemented at their request on some factual issues. That's all that is. They've had it since March. But, anyway, her analysis really didn't need a limiting instruction because she wasn't speaking to the ultimate issue the jury had to handle in the first phase as to the issue of insanity, knowing right and wrong on August 28th of 2014.
THE COURT: Well, here's what's going to be kind of odd is Dr. Maddox gets up and she composites an opinion he's schizophrenic. The jury has already determined they didn't believe that, but they hear it again.
BOYD YOUNG: I take issue with that. Part of the State's argument was people can be schizophrenic and still be criminally responsible. The jury has determined that he was criminally responsible and that mentally ill or not, it did not rise to the level of a defense. But to say the jury has already determined that he's not schizophrenic, I don't know. And if the Court knows that, then --
THE COURT: Just the verdict speaks to that, more or less, that's where I'm getting it from. That's my suggestion. I've not talked to any of the jurors. I know you're just not suggesting that, but no, I'm not -- it just seems to me that the straight guilty verdict appears that's what the jury has decided, is they didn't buy any of the mental stuff or they weren't compelled to go with it.
RICK HUBBARD: But, anyway, Your Honor, the witness they want to bring in has now -- once this trial started, it was just last month, she did an update, Dr. Maddox -- and she can do this. She did an update on her report where she specifically said one of her sources of information was Dr. Kruse. How in the world can they put her up and say, Mr. Hubbard, you can't cross her on a source of information that went to her ultimate opinion, whether she accepted or rejected it. How in the world do I get to cross her on that? That wouldn't make any sense. And that's exactly why they want to do that, to cut me off at my feet. Anyway, Your Honor, the only way -- if Dr. Schwartz-Watts or Dr. Maddox, I believe that's her last name now, I've just known her for so long --
THE COURT: It is. She's told me that specifically, it's Maddox.
RICK HUBBARD: It is. And I've just known her for so many years, it's hard to do that pivot. But if she's going to testify, cross her, and particular if this is one of her relevant sources of information. You don't get to black this out. The Defense doesn't get to say that's -- you don't get to go there. I need to know why she rejected an opinion and I get to put somebody up to reply. I have a right to do that. I have a right to do that. And nothing in your order says I can't do that.
BOYD YOUNG: Your Honor, it specifically blocks cross-examination of particular experts, particularly Dr. Kruse. I mean, we weren't allowed to say well, isn't it true that one of these questions where you get these six points is you ask him if he could sit still in a chair and he told you no and then he sat still in a chair, so you changed the answer to yes. That's one of her questions, but we weren't allowed to cross-examine on that because of the Court's ruling. And to say -- Your Honor can certainly restrict cross-examination and say that's an area that you can't get into. Your Honor has done that in a number of other instances where you've said that evidence is not relevant, I'm directing you to direct away from that or I'm directing you not to go there on cross.
RICK HUBBARD: Judge, we can keep going back and forth, but we've got a right to present --
THE COURT: Here the thing is, I don't know that I can make a proper ruling, an appropriate ruling until I hear Dr. Maddox's testimony. That's going to impact my decision. So I can't tell you right now, okay, those -- particular Dr. Kruse. She was -- she was a source of information for Dr. Frierson just as, apparently, what y'all are saying is she's a source of information also for Dr. Maddox. Dr. Frierson's report may be different. He was the one tasked with criminal responsibility strictly. Dr. Kruse was asked to do studies by Dr. Frierson. I don't know that that's the same thing is we're not going to allow either side to cherry pick questions from Dr. Kruse's studies for cross-examination purposes because it will be too unfair. Seems like that's two separate issues to me. I'm going to consider it a motion in limine if you don't want that testimony coming forward, but until I hear Dr. Maddox's testimony, if she's going to testify, she may not. Then if she doesn't, that makes things easier on me. I can't say right now okay, those are off limits and you put something up and it creates an issue that I have not anticipated that I can say, okay, well, you know, you said it yesterday, therefore -- I can't do that. So I'm not going to rule on that until I hear the testimony as presented by the Defense.
BOYD YOUNG: I understand. And we would object and we're being asked to formulate a comprehensive penalty phase case and trial strategy for the jury in which to decide whether or not Tim lives or dies. And we're doing that and we have done that and we have prepared that in reliance on the Court's prior orders and the Court's rulings and that those orders would be applicable to this phase of the case and they said what they said -- they meant what they said.
THE COURT: And we'll go forward with that in mind. But I'm -- I'm not going to give you a final ruling that something is off limits when I don't know yet. I understand your argument. I generally follow it, but it's hard for me to know now -- I mean, if somebody gets up and says something totally different and you've got to have something to reply with it. And you say well, that's off limits, but something was done unanticipated, it puts me in a very awkward position of ruling. I'm not comfortable making a ruling right now with that. Yes, sir.