2.Penalty-Phase Evidence Rulings
37 linesTHE COURT: I've got to address one thing real quick before we get started. Y'all step in the jury room for a couple minutes and we'll be right back out.
(WHEREUPON, the jury was excused from the courtroom.)
THE COURT: Y'all said y'all wanted a short break to get rearranged.
(WHEREUPON, a short break was taken.)
THE COURT: Y'all ready?
BOYD YOUNG: Yes, sir.
THE COURT: Bring them to me, Tommy.
CASEY SECOR: No, I need to put one thing on the record first.
THE COURT: They were close. Hang on, Tommy. Guys, when you say yeah, they run quick.
CASEY SECOR: Sorry.
RICK HUBBARD: I want to put one thing on too.
CASEY SECOR: I'm doing this to try to prevent requiring argument during the course of testimony regarding admission of photographs of the recovery of the children in Alabama. Just request permission to do so now.
THE COURT: Okay.
CASEY SECOR: My understanding from the Court yesterday is that the photographs are admissible. I would just reiterate that the Defense stipulates to all the information that would come from the photographs. The bags containing the remains, that each bag contained the human remains of the child subsequently identified. And just for the Court and the record, we are speaking about photographs 207A and B, 208A and B, 209A, B, C, D, 210A and B, 211A, B, C, D as well as the video that is marked 206. We would just reiterate our argument that because the information is stipulated to, the admission of the photographs brings an arbitrary factor in the proceedings and causes substantial risk of inflamed passion and prejudice of the jury. And for further authority, I cite State v. Brazell, B-R-A-Z-E-L-L, 325 S.C. 65, as well as State v. Torres, 390 S.C. 618 and State v. Waitus, W-A-I-T-U-S, 224 S.C. 12. And just lastly would state the admission of the photographs would violate Tim's right to due process under the Fifth and Fourteenth Amendments as well as Article 1, Section 314, South Carolina Constitution, his right to a fair trial under the Sixth and Fourteenth Amendments as well as Article 1, Section 14, South Carolina Constitution and a heightened reliability and prohibition against cruel and unusual punishment, the Eighth Amendment to the United States Constitution, Article 1, Section 15, of the South Carolina Constitution. And, Your Honor, I would just request a final ruling on this at this point so that when the photos are admitted, all that we have to do is say subject to previous objection rather than stopping.
THE COURT: Yeah, because I don't want you to have to keep doing that. And that's a very artful presentation. Solicitor, let me hear from you real quick?
RICK HUBBARD: Your Honor, we went over all these photos with Your Honor, with the Defense yesterday and explained the reason why we're doing what we're doing. As Your Honor recalls, every single photo from body recovery, to the extent they are opened, it was just to see if they was human remains. They were not pulled out in full, so officers did what they had to do. This shows how they found that crime scene, how they found the children and the stuff they had to take -- where the Defendant had closed the bag, they had to open the bag to identify what they were taking.
THE COURT: The State's not required to accept a stipulation as to an element.
RICK HUBBARD: That's correct.
CASEY SECOR: Yes, sir.
THE COURT: So, respectfully, the photographs from Alabama will be admitted subject to your objection and you can renew that at the appropriate time.
CASEY SECOR: Thank you, sir.
RICK HUBBARD: One final thing, Your Honor. I had mentioned yesterday under 16-3-20, the State's now moving to incorporate the first phase evidence and testimony into the second phase, which I think is required by statute. I know there was some dispute about Dr. Frierson and Dr. Kruse. I'm moving all testimony per statute come forward into this phase so that we don't have to reintroduce all of this evidence and recall witnesses. And I think that's the purpose of the statute.
THE COURT: Okay. Mr. Young.
BOYD YOUNG: The testimony of Dr. Frierson and Dr. Kruse were limited by court order for the specific purpose of determining not guilty by reason of insanity. That determination has been made by the jury and their testimony is -- testimony of records, any -- all of it is inadmissible for any other purpose and should not be admitted in this case. I cite the Court to our motion and our briefs and our arguments and incorporate all of those records.
THE COURT: All right. They're all done. The State's motion to incorporate everything will be done. Whether or not I give a limiting instruction at the end depends on how this phase goes because I want to be able to consider what's been presented if I have to do that, but I don't have to rule on that right now. But my consideration will be toward the end once we hear whatever y'all present. So I'm going to rule the same way as -- I'm kind of holding your motion to request a limiting instruction to the very end.
BOYD YOUNG: Well, Your Honor gave a limiting instruction with regard to Dr. Frierson that his testimony was only admissible for this phase.
THE COURT: All right. I am not going to rule on that. Y'all made your motion to limit it. I'm not going to grant that because I don't know what's coming from the witness stand. It's hard for me to say competency and criminal responsibility. And all those issues are so intertwined in what may be presented now, so I don't know that it is against the rules. You keep saying that, but I'm not certain of that yet. I understand how you are reading the order but I am not going to say motion granted and then I'm hamstringing myself. I'm not going to do that. I'm not ruling against you, I'm just not granting your motion. But you're protected.
BOYD YOUNG: Yes sir, thank you.
RICK HUBBARD: The State's ready.
CASEY SECOR: One last thing, Your Honor. I'm sorry. I just want to make sure that I comply with the Court's order. At the conclusion of the ruling on my argument, you said when the photos are introduced, you can renew your objection. I prefer to not renew. I'd prefer to just say subject to previous objection if that's okay with you.
THE COURT: That's what I meant. That's fine. All right. Y'all got all your law out of you? You got all the law out?
CASEY SECOR: Yes, sir.
THE COURT: Ask the Appellate lawyers, geez, y'all are beating me down early.
RICK HUBBARD: The State's ready.
THE COURT: All right. Bring in the jury now. (Whereupon, the jury came into open court at approximately 9:45 a.m.)
THE COURT: Call your witness.
RICK HUBBARD: Thank you, Your Honor. The State calls Dave Lawrence.