9.End-of-Day Mitigation Evidence Rulings
34 linesTHE COURT: All right. When we were talking about Monday witnesses lined up. There's a couple things we need to put on the record about --
ROBERT MADSEN: I can do mine first, Judge.
THE COURT: Okay.
ROBERT MADSEN: Your Honor sustained objections to me asking about crocodile tears and a show of remorse. We believe that that does go to mitigation under Eddings and Skipper. Obviously, a portion of their case has been kind of that he's all about -- or Tim's all about himself or that he is kind of a narcissist. To not allow those questions is denying Tim his due process rights, fair trial rights and we also believe it comes under cruel and unusual punishment.
THE COURT: All right, Mr. Graham, you objected.
SHAWN GRAHAM: Yes, speculation on his part about --
THE COURT: As speculation. I sustained it as to speculation. I understand your objection. So your record is protected. Anything else? All right, Mr. Young, you said something about a witness coming?
BOYD YOUNG: Yes, Your Honor. We've had a discussion about the admissibility of Frierson and Dr. Kruse and whether or not the State could get into anything depending on what the Defense presented. We've offered to present Dr. Maddox for a limited purpose of what she did in response to serious mental health concerns and her treatment at that time without going into her report or diagnosis. And we request that the Court let me know whether or not the Court felt like that limited testimony would open the door to Frierson and Kruse.
THE COURT: So, basically, she's going to testify to what she did during the trial?
BOYD YOUNG: Yes, sir.
THE COURT: As a result of the conversation we just heard about?
BOYD YOUNG: Yes, sir.
RICK HUBBARD: The way it was presented is hey, if y'all will agree to this, we'll pull back her testimony. I haven't even had a chance to talk to our folks, but, obviously, Judge, I don't know what she's going to testify to. And if it's about she's treating voices and things like that, that does open up the door. It's something I'm going to explore. So I just need -- I'm not real clear on what they want to present. If it's just I'm giving him meds. But I suspect they're going to focus on symptoms, symptoms that correlate to psychosis. If that's the case, I can't just not question her. And the only expert opinions I have are not just Frierson, but Kruse. So I just -- we don't really know exactly what they're limiting Dr. Maddox to.
THE COURT: As I understand what Mr. Young has said, is the third or fourth day in, the detective noticed something and so there was concern about Jones' condition.
BOYD YOUNG: Right.
THE COURT: Immediately, Dr. Maddox was contacted and she drove down, I think the next morning. And came to court and had some brief examination, talk, and in fact, wrote a prescription that was transmitted to the sheriff's department through the captain that changed his dosage, very close -- maybe that evening.
BOYD YOUNG: That was the second--
THE COURT: -- all right.
RICK HUBBARD: Is that going to be the entirety of it? If it is -- I mean if they're not going to get into the past five years she's been the treating doctor for him, that as early as September of 2014, she was seeing him and giving him medication.
THE COURT: Well, I think what he just said was regarding that treatment, she's been treating him, but she was called for that particular reason and that --
BOYD YOUNG: -- that would be our offer. And what we're looking for is if -- I mean, if the Court says that that opens the door to Dr. Kruse and Dr. Frierson, then it does and we'll deal with it accordingly.
THE COURT: I think just from that limited amount, that probably would not. If it gets expanded broader than what you represented, then, perhaps. I think that's going to be on a wait and see. But just that limited coming in, examined him, changed his prescription, I'd say probably not. But again, haven't proffered it yet.
BOYD YOUNG: Yes, sir.
RICK HUBBARD: And we'll wait and see and see what we need to go into, Judge. I mean, that would be fine if we shorten it.
THE COURT: Okay. Anything else? All right, we'll be here early Monday.
ROBERT MADSEN: One more thing?
THE COURT: Yes, sir.
ROBERT MADSEN: I just thought of something that jumped back to my questions and they're talking about speculation. They elicited testimony from someone about that Nahtahn was smiling, but they don't think it was a real smile. And I don't quite under -- thinking about it, how is that any different?
RICK HUBBARD: I didn't hear an objection, that's the biggest difference.
ROBERT MADSEN: Okay.
THE COURT: That's what I heard, too.
RICK HUBBARD: But I will say, ultimately, compared to what the rest of the testimony was, it ended up being cumulative in the sense of what the child was doing.
ROBERT MADSEN: We believe the evidentiary rights--
THE COURT: -- okay. (Whereupon, the trial will resume the next Monday at 9:00 a.m.)