6.Barry Sowards — Proffer
25 linesBARRY SOWARDS, being first duly sworn, testified as follows:
COURT CLERK: Have a seat, please. State your name, spell your last for the record.
BARRY SOWARDS: My name is Barry Sowards. Last name is spelled S-O-W-A-R-D-S. PROFFER DIRECT EXAMINATION
BY MR. MADSEN:
MR. MADSEN: Sergeant Sowards, were you one of the members of the team that extradited Tim back from Mississippi?
BARRY SOWARDS: I was.
MR. MADSEN: Did you all stop for food at Krystals?
BARRY SOWARDS: We did. We stopped at two places --
THE COURT: Ask him the question, you don't have to talk about what he ate.
MR. MADSEN: Did you have a conversation with Tim about your automatic weapon?
BARRY SOWARDS: I did.
MR. MADSEN: Can you tell the Court about that, please?
BARRY SOWARDS: We were stopped at a location for a rest stop. Two of my detectives went inside the business. I stayed inside the vehicle. I had a weapon on my lap. It was a H&K UMP 45. It's an automatic weapon. Mr. Jones looked at me when the other two exited the vehicle and he said to me, you guys don't need automatic weapons for me. I'm not going to hurt you. And I replied to him and said, these weapons are not for you, in particular, it's for everyone trying to kill you.
MR. MADSEN: That's all the questions I have.
THE COURT: That's a good proffer. Still won't allow it. Step down.
MR. GRAHAM: In support of your ruling, they have cited, I believe, Lockett vs. Ohio, 438 U.S. 586 at U.S. Supreme Court. Footnote 12 on that case says nothing in this opinion limits the traditional authority for the Court to exclude as irrelevant evidence not bearing on the Defendant's character, prior record or the circumstances of his offense.
MR. MADSEN: Judge, our position would be that it's mitigation evidence and it goes to the circumstances of the offense that is the basis for something less than death, that Tim will have to spend the rest of his life in prison in protective custody because of the type of offense in the other prisoners opinion.
THE COURT: All right. Bring in the jury.
MR. MADSEN: Just for clarification, Tim's question is allowed, just not the response, Your Honor?
THE COURT: You can get Tim's response in, but Detective Sowards response, to me, is his personal opinion and not relevant to Mr. Jones character in any way. I think it goes to Mr. Sowards training as an officer, that's his job to protect him, it is Mr. Sowards character.
MR. MADSEN: If Your Honor would just note our objection.
THE COURT: It's noted.
(Whereupon, the jury came into open court at approximately 11:22 a.m.)
THE COURT: Call your witness, please.
MR. YOUNG: The Defense calls Kerry Breen.