5.Penalty-Phase Photograph Admissibility Hearing
97 linesTHE COURT: What is the best way to proceed with the photographs? I have read the cases, Dickerson and one of the other issues. What is the best way to proceed with the photograph consideration.
RICK HUBBARD: I don't know if it is easier where you can see them here. However you want to do it. This is the body recovery photos.
THE COURT: The video we are talking about?
RICK HUBBARD: Yes, sir. And we have not, they have, we have not played it for them. But on Eli, what I have done is mark the bag, stick with the photos. So this is 207 ID, two photos, 207A and B. How it is found, placed the child in the body bag. What they had to do is open them up, this bag was already pretty much open. Two is Merah which is 208 ID. Two photos, A and B, that is the bag. That is the bag where they put her in the body bag. It was already open so they could tell that -- the remains. Gabriel which is 209. There are several here just to get to it. 209A is the bag, 209B is the bag on the body bag. 209C, they opened the bag and you just see the blanket, the bedding. 209D, is where you actually see body. And you can barely make out what it is. You can just tell there is a body. 210 is Abigail, two photos. A, just showing the bag. B is them opening the bag on the body bag, just enough to see human remains. 211 is Nahthan. We have five. 211A is the bag; B is the bag on the body bag; they opened it up, that is C, you can just see bedding. When you get to D, 211D you see body. That is it. That is all they did to confirm human remains at that point in time. The video, which I know they have is a video when officers get there, maybe four minutes where the actual bags are.
BOYD YOUNG: I have never watched the video.
RICK HUBBARD: We can play it but I didn't know if you want to play it in here. If you want to put it up on the big screen we can.
THE COURT: No, I don't want to do that. We might play it on the computer.
RICK HUBBARD: If you want I will go ahead and jump to the autopsy.
THE COURT: Yeah, the autopsy.
RICK HUBBARD: 212 is Elias. I have several in here because there is some with Dr. Ross. I am going to go over and may throw some of these out. A is how the bag comes to her, that is how she sees it which picks up on what you just saw of the body recovery. They open it up, part of the ID is, which is in B, the shirt, Saxe Gotha. This is how his body is which is C. Shows the animal activity. Then these are the ones I am going to talk to her about. I don't anticipate necessarily having to put these in. He is the one with the bone that is broken. So I wanted to know what is her focus here which is D and E. You will notice there is evidence into the neck that obviously something that she focused on. F and G, I think were related to that. I wanted her to confirm that, maybe the hyoid bone. Then she had Xrays which are H and I. I am not sure, she would have to tell me if these have any significance or she could tell anything from those.
THE COURT: Okay.
RICK HUBBARD: This one is, Elias and Gabriel have the most because those were the ones that showed physical injury--
THE COURT: With the belt.
RICK HUBBARD: At the neck, yes sir. That was Elias. Merah which is 213, got two. This is how she presented when they pulled her out of the bag, she is wrapped in one of her brother's bedding. She is not clothed, to show the damage to her arm that she talked about. That is the one that they think there is a hand missing. The only other photo is so close up, the other photo shows her head.
THE COURT: The other photo shows her head.
RICK HUBBARD: Right, it does. And I have got, she has got plenty of closeups on that. So that is 213A and B. Gabriel which is 214, this is one that has got several at the neck. Which she said he had a distended leg, that is 214A. That is how he was in the bag. Then there was clothing that she mentioned. That is B, that is the shirt, the large adult shirt. C is a slipper. D is the Hello Kitty journal. E is the diaper she mentioned. And then we get to the neck and, again, going to meet with her. Some may be duplicative. This is the back of the neck showing a mark on the neck. That is 214F. And you have 214G and H which are very similar but you see, look at the striation, explain should it be one or both, what does she need.
THE COURT: She is coming Friday?
RICK HUBBARD: Yes, sir. She is coming tomorrow but it will be lunch time.
THE COURT: Okay.
RICK HUBBARD: 215 is Abigail. We have got two photos, that is how she was in A, when they pulled her out of the bag she was pretty much incased in bedding. And then, B, when they unfold it that is it. I have got 569 photos. There is a lot of more graphic ones of her. Nathan which is 216. I have got A when they pulled him out of the bag, he is also wrapped in bedding. And they open him up. In B, he is not clothed. And then he has an unusual mark, she testified about that there -- pre-mortem, postmortem, that is C, that is his elbow. Now, we already have in his knee that was cut. That is the only photo that is already in. So, basically all the photos for purposes to show how they were when they got to her, the condition. And then any injuries. And if Your Honor wants we can play this video.
THE COURT: Let's play the video. Put it on that computer. The computer was in the jury room when I saw it last.
RICK HUBBARD: Get Rhonda to get the computer. The computer that the jury had, can you bring it. (Whereupon, a video was played for the Court starting at 4:12 and ended at 4:16.)
THE COURT: Did Joy mark that?
RICK HUBBARD: Yes sir, it is 206.
THE COURT: 206, you can mark that. That is the video, about four minutes of the scene on the logging road. (Whereupon, State's Exhibit 206 was admitted into evidence.)
THE COURT: Speak to me on first the video and the scene at the logging road. That group of photos, those all seem to be of similar time and quality and graphicness. They're all about the same tone. I'm going to use that word.
ROBERT MADSEN: Obviously, our argument is much weaker on, say, the video because of the ungraphic nature. But, I mean, it's not -- they put photographs in in the first phase, I believe, of the bags.
RICK HUBBARD: Of a distant shot of the bags after they were marked, that's it. That's the only thing other than Nahtahn's knee, a close-up. That's it.
ROBERT MADSEN: Like I said, kind of getting back to on one of our arguments, Rick's words, is that it's redundant. I mean, they got that in. They don't need it. It's more prejudicial than probative. We know where the bags were. No one has disputed that fact whatsoever. I mean, they don't need it to prove anything.
RICK HUBBARD: Of course, our position is it goes to character and circumstances of the crime. Those closed bags don't. They just show he dumped them there. This shows their actual bodies there. And, obviously, they're extremely relevant to that issue.
THE COURT: All right. I was reading a case, it's State vs. Johnson, which is 338 S.C. 114, and it addresses photographs in sentencing proceedings. And it also quotes Kornahrens, which is 290 S.C. 281, I've read that and that's also in this packet. And they're consistently ruling with -- it appears to me that in the sentencing side, the trial Court admitted photos depicting bodies in substantially the same condition in which the Defendant left and more to show the circumstances of the crime and the character of the defendant. And it appears to me under 401, 402 and 403 that the ones at the scene, including the video, all are similar nature, graphicness, and depiction of each of the children collectively. I'm going to allow them under those three rules, 401, 402 and 403. Certainly, they're probative. Certainly, they're prejudicial. But weighing everything, those are allowed, this group.
ROBERT MADSEN: Just note our objection.
THE COURT: I will.
ROBERT MADSEN: Judge, and I think you have a copy of our motion, also. We also put in there -- I mean, obviously, the decision by the jurors -- I mean, we know that they have proven the aggravating circumstances based on the verdict. So it's an emotional decision, obviously, by the jurors on whether it's life or death. That is obviously an option for them. Back of the motion, we had some social studies dealing with photographs. And like I said, it's kind of introducing an arbitrary factor for their decision, which is not appropriate. You know, they're trying to lather up the passion of the jury and so -- and based on the fact that they had already -- that that wasn't the circumstances that he left them at and then the testimony that came out. I don't need to rehash that, I've already --
THE COURT: All right. Now, I'm going to allow those in. I'm comfortable with the ruling on those. These are a little different. There's a little different ruling on those. So let's hear your argument on those.
ROBERT MADSEN: Well, I mean, obviously, you looked at those --
THE COURT: And I'm sorry. For the record, the autopsy photos is another group and they are of similar quality, character and condition, collectively, they are.
ROBERT MADSEN: And I don't think I'm going out of bounds to describe those photos are the things of nightmares. I mean, they're just the most horrific things that I've seen in 22 years, having done, you know, from both sides, hundreds of different murders. And there's no way the jury is going to be able to see that and just not -- or follow the law. It's just not going to happen. It's nothing in issue -- I mean, we have been consistent. The Solicitor seems to have adopted that, at least, in their closing argument as to how the children were killed. So it's not an issue. They don't need those to prove anything in this case. They're just absolutely horrific, they're unnecessary. There are head shots of Merah, Nahtahn, Abigail. There are appendages that have been eaten off by animals. I mean, they are just absolutely not necessary. They go from bad to worse. And I don't think that there's anything in there that Dr. Ross needs to explain. I mean, she's already kind of testified without them and so adding them in there, that is -- I just think that that is extremely dangerous ground.
RICK HUBBARD: My response is in the guilt phase, they tried to put in some of these same very photos. And at that time, it was all about it's probative because it shows our client is insane. Who would do this? They were okay with it. I fought to keep them out because I don't know any case that would allow this in guilt phase. Because what these show, not so much the Y-incision autopsy and going through different organs, except for certain things with Eli and with Gabriel, they show the actual condition of the bodies. The photos you just saw, body recovery, you can see there is a body, you cannot see what he did to that body. You cannot see how they're placed in there or what's wrong with them. These photos show exactly what he did. And they are graphic, but I've limited them. I have 569 photos I plan to, at least, make Court's Exhibits out of. I have hand selected just a few.
So if Your Honor wants to go through these and see just how profoundly graphic the others are and how conservative I was in choosing these for a very specific purpose. Most of these, it's just two shots. Really, I'm going beyond that with Eli and Gabriel and I'm not necessarily putting in the other shots. I don't know what the doctor needs to describe the hyoid bone break or the striation on the neck. But this shows how he placed them in the bags, how they were in the bags. That goes directly to the circumstance of the crime and directly to his character, absolutely directly to his character. Otherwise, without these, there are no real body shots. The shots you just shot from recovery, you just get a glimpse of a portion of the body. And several of them, you can't even make out what it is, it just looks like decomp of some sort. And we're relying on the officers on the scene to say that is a human body. You see that with the autopsy photos in the actual condition.
And my argument is it's not just how he left them there that day, he left them there to decompose. He left them there to do exactly what you see here. That reveals his character, that's what he intended. No burial. He left them there to bake in the sun, decay. And he left them there -- you heard that video with the bugs and the sounds. He left them there knowing it's summertime and they're coming after his kids. So I think it shows his character more than anything I've got. They argued he was a loving father. Judge, I argue he is a man who acted in the most evil way. And, again, the initial photos, they were putting those in themselves. So they say it's the worse thing they've ever seen, but they were putting them in.
ROBERT MADSEN: Do you have the one that we offered?
THE COURT: Yes, we marked them.
COURT REPORTER: I have them.
THE COURT: There was five, one for each.
COURT REPORTER: So 109 through 113.
RICK HUBBARD: I would like Your Honor to compare what they put in, 109, to what I've got. One, she's -- in A, she's covered up except for her upper torso, head, and in B, it's far less graphic. Who do you have next?
BOYD YOUNG: Eli.
RICK HUBBARD: Okay. Which corresponds to --
THE COURT: Very close.
RICK HUBBARD: Very similar. It shows the body -- and what they don't show is the animal activity. Our argument is he left them for the animals. There's two bags that were broken into, Merah's and Eli's. Everybody else's, the bags were not broken into. All right. That will be Nahtahn. The first one, he's covered.
THE COURT: Same picture.
RICK HUBBARD: Very similar, may be the exact same photo, Judge. I think it is.
THE COURT: Okay.
RICK HUBBARD: And then the last was his elbow, and she talked about that. All right. That is Gabriel. I think that's the exact same photo as 2014A. The only thing I have after that is what's found in the bag. Not prejudicial at all, but showing why would he put stuff here. And then I just had what I was going to talk to the doctor about --
THE COURT: As far as neck injury?
RICK HUBBARD: Yes, sir. All right. And then Abigail, how she came, wrapped up. Same photo, 2015B.
THE COURT: Okay.
ROBERT MADSEN: First of all, I understand what Rick is trying to do. He balked because he didn't want them in the first phase because he knows that they'll inflame the passion in the second phase. And that's kind of the crux of our argument. Depending -- there's certainly no reason that if some of the photos do come in, they -- be in black and white, kind of mute that passion.
RICK HUBBARD: My argument had nothing to do about --
ROBERT MADSEN: Especially if you need them for Dr. Ross, you know, if they're going to point out this or that. Black and white doesn't change that as opposed to color.
RICK HUBBARD: My comeback to that is this, they were putting color photos in in the guilt phase because they thought it served their purpose for their client. And, Judge, I fought to keep them out because I thought it was inappropriate at that time because I think it goes to the crime and to his character. So these are perfectly appropriate here. It's not to inflame the passion. It's to show what I think I'm actually not only entitled, but what I have to show, the character of the Defendant and his crime. That's what the argument is going to be. And whatever argument they were going to make in that first half using their photos, they're still entitled to make that argument in the second half. It won't be that he's not guilty, but that he has mental illness. They're going to argue mental illness in the second phase. And so say only use black and white, they weren't even willing to use black and white.
ROBERT MADSEN: It just interjects that passion.
RICK HUBBARD: Which is what they were going to interject. So, to me, it just makes no sense.
BOYD YOUNG: We were trying to take the sting out of it --
COURT REPORTER: Judge, I can't hear.
THE COURT: Boyd said we were trying to take the sting out of it in the first phase and then he stopped.
ROBERT MADSEN: And there's a portion that we've got to try to minimize what we potentially know is coming down the pike. Like I said, jurors see those images -- I mean, how can you not see that and not be inflamed?
RICK HUBBARD: My comeback to that is this. It was strategy on their part and they were willing to risk inflaming the jury at a time you can't, can't introduce these. I have case law, as Your Honor sees. This shows -- they're not opening these children up. This shows the condition they were in. You can't tell when they're in the bag, you have to take them out.
THE COURT: Okay. I got your argument.
RICK HUBBARD: Okay.
BOYD YOUNG: We thought that these pictures should have been shown to the jurors during voir dire, that jurors should have the opportunity to see these pictures, to know what they were getting into to decide whether or not they were going to be too emotionally overcome based on the graphic nature of the pictures, at voir dire to answer whether or not they could still be fair and impartial. We were denied that. We filed a motion where we had black and white photos, one of each of the autopsies that we thought were appropriate as a way to show them. And yes, we got denied on that. We then had the color copies that we offered at several different points during the first phase of the case. We were denied on that as well. At this point in time, if the State is allowed to show photographs, in order to minimize the overwhelming emotional nature of them, they should be in black and white.
RICK HUBBARD: The problem with the black and white is the evidence as far as striations, anything like that is gone. You have to have texture. And they were going to do that themselves, so -- I'm getting -- everybody is getting redundant at this point. Your Honor, I will tell you, in State V. Finkley, we put in a video showing a man burned to death and bleed out. We have pictures of his charred torso. Because it was circumstance of the crime, it showed the character of the Defendant. He knew the man was going to burn up when he poured gas on him and lit him on fire.
THE COURT: I remember that case.
RICK HUBBARD: It was God awful because you actually saw it happen. It came in, the video and the pictures. And then not only that, we brought in a rack to put his clothing on --
THE COURT: I read that case.
RICK HUBBARD: And it was affirmed.
BOYD YOUNG: Your Honor, this is not what happened on August 28th. This is a natural course of decomposition of over two weeks during the summer in the South.
RICK HUBBARD: Which is our argument, that he intended that.
THE COURT: I understand. I've got y'all's argument. Let me study it a second. This is my first opportunity to see all of them. So y'all have and I haven't. Give me a minute. I understand y'all's argument very clearly. It's easy. There's a big bright line right between y'all.
(Whereupon, a short break was taken.)
THE COURT: In the cases I've read, State versus Diehl, talks about autopsy photos, as does Kornahrens, it's K-O-R-N-A-H-R-E-N-S. State versus Powers and State versus Johnson. And I understand the probative of the 403 analysis is a broader probative value standard in the sentencing side of a Capital trial. All these talk about what happened and how they described the nature of the crime and the character of the Defendant and all the cases talk about the unpleasantness. But the probative value -- him putting them out there in the bags, that was a much easier call than these autopsy photos of the bag and then the body in the bag on the table. In my understanding of the case law, would be allow for the State to show what -- the character and the conduct of cramming the children in the bags, that -- whatever that depicts, his, I'm going to call it lack of respect for their bodies. I won't comment that in front of the jury, but his conduct of packing the children in bags and contorting the bodies in different fashion, putting them out there in the woods, albeit it very unpleasant. I think the State has a right to go into that as to show what he did. And the pictures on the side of the road don't show that. So Dr. Ross's picture of the neck, Solicitor Hubbard did not say he was going to try to use those unless Dr. Ross needed those to explain the nature of the injuries. And that's not really before me now, but I understand -- I was thinking so I could probably rule on those after I hear whatever she -- we may need to proffer for her. But I think, basically, it's two photos per child except for several photos showing items inside the bag maybe. Considering the case law I just cited, 401, 402, 403, they are admissible, even though very unpleasant.
ROBERT MADSEN: Your Honor, how about our request for black and white?
THE COURT: You know --
ROBERT MADSEN: I mean, it shows the bodies then contorted -- and I know Rick said that you can't get the texture in that. But until you see them, you don't --
RICK HUBBARD: You also lose, you lose everything. I mean, there's --
ROBERT MADSEN: You can tell by the pattern.
RICK HUBBARD: You can. And that's fine, you can argue that. But to me, Judge, it just shows reality. I mean, it just shows the reality and that's all this is about.
ROBERT MADSEN: Well, I mean, none of those -- how -- I mean, he's the one who told them. That's never been contested and, obviously, he's not charged with unlawful disposing of the bodies. I mean, it's just not relevant.
THE COURT: Can I see one of them in black and white? Just to see it. That way I considered it. You got a black and white? This is -- which child is that?
ROBERT MADSEN: This is Eli.
THE COURT: The color ones aren't any less graphic than the black and white ones. A couple of the black and whites almost look more graphic to me. Those are tough. But under the circumstances of the case, they're admissible.
ROBERT MADSEN: One more issue. So the jail ran out of Tim's meds, so he got a half a dose of Geodon. They're hoping to get more in --
THE COURT: And who wrote -- I'm sorry. Earlier, Dr. Maddox, when she came, she issued a new prescription because Captain Joyner got it and transmitted it to the jail. I was part of a text message and told him to help manage that and administer it and he did. And yet, we're already out again.
ROBERT MADSEN: Well, he did not get a full dose yesterday. And they're hoping that they come back in, but he's not had a full dose of his Geodon. He's had a half dose.
THE COURT: All right. We'll do our best.
ROBERT MADSEN: Your Honor, my understanding is that the jail just ran out, not Tim specific.
THE COURT: Okay. Find out the status of the refills. (WHEREUPON, Court's Exhibit numbers 112 and 113 were marked for identification only.)
THE COURT: 112 and 113 is a letter from Tim, Jr. to Amber, that will be 112. 113, a letter to Rick Hubbard from Tim, Jr. It is three or four lines. That is the Amber letter right there, that is 112. Anything else?