5.State Rests and Sowards Testimony Ruling
60 linesRICK HUBBARD: Your Honor, at this time, the State rests.
THE COURT: All right. I've got to put some things on the record, so y'all step in the jury room. I'll give you a short break. There's required -- some things I've got to put on the record when the State has stopped. Don't discuss the case.
(WHEREUPON, the jury was excused from the courtroom.)
BOYD YOUNG: Your Honor, at this time, the Defense would renew all pretrial motions, all objections, all mistrial motions, motions for directed verdict, motions for a new trial. I would state for the record that the cumulative effect of the denial of the Defense's objections and motions has denied Mr. Jones his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article One, Section 3 and 14 of the South Carolina Constitution, his right to a fair trial under the Sixth and Fourteenth Amendments and Article One, Section 14 of the South Carolina Constitution and the prohibition, against cruel and unusual punishment under the Eighth Amendment and Article One, Section 15 of the South Carolina Constitution.
THE COURT: The State has put forth ample evidence for the directed verdicts of the punishment phase to go forward to the jury. All your pretrial motions, directed verdict motions, motion for a new trial, motions for mistrial, consistent with the rulings I made before, respectfully denied as to those motions.
BOYD YOUNG: At this time, the Defense would move in all the evidence offered by the Defense during the first phase of the case.
THE COURT: As it was with the State. How long y'all need? The jury's only been out two minutes.
SHAWN GRAHAM: One matter we'd like the Court to address, it's my understanding they plan on calling Barry Sowards with the sheriff's department. Our conversations with Sergeant Sowards, there appears to be several areas they plan to go into that I don't think is admissible, so I would ask to proffer his testimony.
THE COURT: All right. You want to do that?
ROBERT MADSEN: No, sir.
THE COURT: All right. Do you want to proffer his testimony?
ROBERT MADSEN: No, sir.
THE COURT: I'm not sure I can hear you, yes or no?
ROBERT MADSEN: No, sir. I don't think there's any -- I mean, they think that there's something, but -- I mean, they can certainly put that on there. But they don't have a right to preview the testimony just because they don't like potentially what he's going to say.
THE COURT: What's the nature of your objection?
SHAWN GRAHAM: Relevance and it has nothing to do with the Defendant's character. There are two -- at least, two things that I know that they plan on going into -- or my opinion would be. One of them is when Sergeant Sowards was transporting Mr. Jones back after his arrest to South Carolina that there was a time when Sergeant Sowards was alone with Mr. Jones and Sergeant Sowards had an automatic weapon lying across his lap. And, apparently, Mr. Jones made the comment you don't need it for me. And the reply by Sergeant Sowards was, It's not out of any concern for fear of you, it's because people want to kill you. I don't think that's relevant or admissible. It has nothing to do with the Defendant's character.
ROBERT MADSEN: I think it does go to his character. Saying that you don't need an automatic weapon, in other words, I'm no type of threat. And then Sergeant Sowards explains to him, that's not why I have the weapon. I have it to protect you against other people. But I certainly think that that goes to character.
THE COURT: How does Sergeant Sowards' opinion as to his job relevant to Mr. Jones' character?
ROBERT MADSEN: Well, I think the important part is that Mr. Jones asking him -- or telling him that question, making that statement.
THE COURT: I think the statement is fine, I think the reply is probably not.
ROBERT MADSEN: Well, I think it goes in to show the fact that they are taking him back, that he's not any type of threat to them, that that is their protection. We believe that that's relevant evidence, certainly.
THE COURT: I mean, explain to me how it's relevant to Mr. Jones, Mr. Sowards' opinion as to what people in the general public think about him. How is that relevant? I mean, that's what people in the general public think, perhaps.
ROBERT MADSEN: Well, I think if you take it all into context, I think that the response is important also.
THE COURT: How is it harmful to the State?
SHAWN GRAHAM: We don't think Sergeant Sowards' response is relevant to anything to do with the Defendant's character or this case. Your Honor said it yourself, what the public thinks what might think, that doesn't have anything to do with the Defendant.
ROBERT MADSEN: Judge, we believe that the Supreme Court has consistently said that anything can be mitigation and we think that that testimony would go towards mitigation.
SHAWN GRAHAM: Your Honor, trying to impose what the public might or might not think as being relevant to mitigation, it has no place in the courtroom. The jury's decision is based on things that have to do with the Defendant, not things outside this courtroom.
ROBERT MADSEN: Judge, we have already heard testimony about the rape video.
THE COURT: About what?
ROBERT MADSEN: The rape video, the American History X, assuming they're going to watch, about stuff of the public and their perception of that. That type of testimony has already come in.
THE COURT: All right. What else?
SHAWN GRAHAM: The second issue that I'm aware of, Your Honor, is that during the course of this trial, at one point, apparently they plan on eliciting testimony that Mr. Jones told Sergeant Sowards that he was hearing voices again and asking, I think, for his medication to be increased. And also trying to elicit that Sergeant Sowards -- I don't know exactly what he would say, but something about Mr. Jones' facial expressions that day. What his facial expressions were and whether he said he was hearing voices, again, it's not relevant. It has nothing to do with mitigation. If they want to put up an expert to talk about his mental health and him saying he's hearing voices again, that's fine. But those are just his words.
ROBERT MADSEN: Judge, first of all, that's inaccurate. That is not what happened. What happened is Sergeant Sowards asked -- I'm going to call him Tim's handler since he's here. But he noticed something different with Tim. Not Tim coming to him, he noticed something different with Tim when they were in the back. He approached Tim and said hey, is there anything going on? He pretty much had to draw -- or Tim said, well, I need to talk to medical. He said, hey, if there's something going on, you need to let me know. Tim, at that point in time, after he kind of dragged it out of him told him about hearing voices. Sergeant Sowards then contacted medical about that and they ended up raising his Geodon. But that's not something that Tim said hey, this is what I want, this is what I need, this is what I'm doing. He noticed a difference in the way that Tim was acting. And he approached Tim and, like I said, basically, had to drag it out of him. So with all due respect, I mean, the way he characterized it is incorrect. Judge, I would say this, in Capital cases, the sentence may consider as mitigating, as a mitigating factor any aspect of the Defendant's character or record and any of, and any of the circumstances that the Defense, that the Defendant proffers as a basis for a sentence less than death. That cites Eddings vs. Oklahoma, 455 U.S. 104; Lockett vs. Ohio, 438 U.S. 586; Skipper vs. South Carolina, 476 U.S. 1. The sentence may not be precluded from considering any relevant mitigating evidence. Again, that is Eddings and Skipper.
THE COURT: One case I read had the 403 analysis, was the probative value or enlarged or spread a little bit more in the sentencing portion of Capital cases, a little more latitude could be given is what I recollected the case law being. I understand your objection, Mr. Graham. I'm going to allow them to do that. I don't want them going down the road -- too much further off the road with Detective Sowards. I understand your objection. I'm going to allow it. The directive from the Supreme Court is to allow a broader range of probative versus prejudicial effect, so I'll allow it.
SHAWN GRAHAM: Does that apply to both?
THE COURT: Both.
SHAWN GRAHAM: Are you going to allow them to elicit the response from Sergeant Sowards about it's not for you, it's for the public?
THE COURT: I'm going to allow that.
SHAWN GRAHAM: Well, Your Honor, we would like -- before the jury comes back, we would like to do a Jackson V. Denno hearing on the statement with Sergeant Sowards on the statement that the Defendant made to him in a Schmerber hearing earlier. This is a statement where he's in custody, but he's not being questioned. And Mr. Jones, on his own, inquires into Sergeant Sowards about -- he requested Sergeant Sowards go investigate Amber for food stamp fraud.
THE COURT: All right. I need a break, things are coming unraveled. I understand. One thing is leading to five others. Y'all put it back together. I don't think you need that, it's my humble opinion. You're wearing the jury down and the Judge down. All right. We'll take five minutes.
(WHEREUPON, a short break was taken.)
THE COURT: All right.
SHAWN GRAHAM: Just a few things, Your Honor. If I understand your ruling, for the record, on what was admissible or not. I would just share the State's concern that by allowing them going into Sergeant Sowards response about people out there wanting to kill Mr. Jones, that that's injecting an arbitrary factor, what society wants to have happen in this case.
THE COURT: I tend to agree with you. I tend to agree with you.
SHAWN GRAHAM: By them assuming to do that, I'm assuming that it's a tactical decision on their part to interject that into this case.
THE COURT: Why do you want that, really? To me, it's senseless. It's almost like an intentional PCR.
ROBERT MADSEN: We think it goes to character, it goes to mitigation.
THE COURT: It's Mr. Sowards opinion as to what the general public thinks, not what Mr. Jones thinks.
ROBERT MADSEN: He's telling him why he has the automatic weapon.
THE COURT: I know. That has nothing to do with Mr. Jones character.
ROBERT MADSEN: I understand. Are you reconsidering?
THE COURT: I think I am. That answer is not a good answer to put in there as to why he said that. I just don't think that's relevant to Mr. Jones character at all, now that I think about it.
ROBERT MADSEN: If Your Honor orders me not to ask that question, I will not. I think I've probably got to proffer it.
THE COURT: All right. If you need to proffer, let's do it. I think you've probably proffered it enough given the sum and substance of it.
ROBERT MADSEN: If Your Honor thinks that that's okay, the substance of that without being proffered, might not proffer it.
THE COURT: Okay. I'll find that the proffer was the responsive comment from Sowards would be something along the lines, I don't have it because I'm fearful of you escaping, the general public may want to cause you harm for murder.
ROBERT MADSEN: I understand. The Appellate Defense tells me it's got to be proffered.
THE COURT: I disagree with you.
ROBERT MADSEN: I understand.
THE COURT: And I disagree with Counsel. Proffer it anyway, though. I feel like I'm fighting ten different lawyers. I bet when you all get to the Supreme Court, one lawyer gets to talk to five Judges, not one Judge to five lawyers. Place him under oath, please.