2.Kyzer Affidavit and Family Mercy Testimony Rulings
88 linesBOYD YOUNG: Judge, there's one thing that -- for the record real quick.
THE COURT: Okay.
BOYD YOUNG: The Defense would intend to offer Defendant's Exhibit number 123, an affidavit from Amber Jones, for ID into evidence. Just offering the State an opportunity if they want to be heard about that.
RICK HUBBARD: I do. We object. Amber Kyzer is available. They can call her as a witness. I can't cross-examine an affidavit. I don't know the circumstances behind this affidavit. It purportedly says she doesn't want the death penalty. That she's never believed in it. I've never talked to her about it, haven't questioned her about it, and I think I can't cross an affidavit.
BOYD YOUNG: Ms. Kyzer identified the affidavit when she was in Court. The State certainly had an opportunity to ask her about it at that time. They didn't. This is no different than any of the number of exhibits that the State had her identify and then later moved into evidence in the penalty phase in this trial, which included the videos the State played during their case--
RICK HUBBARD: -- of course, I couldn't cross her on that because we were in guilt phase, and to say how do you feel about the death penalty, you probably would have been stopping me before Mr. Young.
THE COURT: I think I would have. If she's available, she's gone. I'm not going to allow it. She's an available witness. She lives locally. You all both can call her. Either of you can call her.
BOYD YOUNG: You already know what Ms. Kyzer went through and what it took for her to testify. We in good faith asked her to sign an affidavit if she wanted to. If she wanted to request mercy on Mr. Jones' behalf, which she did in affidavit form. To cross-examine, and to bar the Defense from presenting that affidavit that she's identified and authenticated as her own would be a denial of Defendant's right to present relevant litigation and a violation of his constitutional rights.
THE COURT: No. You can call her. You can call her. The case isn't over, you can get her here. So if you want her to testify, get her here.
RICK HUBBARD: And just for the record --
THE COURT: If you need help getting her here I will help you.
RICK HUBBARD: And just for the record, Your Honor, I know at one time she had told us she was for it. So we basically left her alone on that issue.
THE COURT: I understand. She's not far away. She's local. She can be brought in. I'll help you get her if you need to. Anything else before we take a short break?
BOYD YOUNG: No, sir.
THE COURT: All right.
(Whereupon, a short break was taken.)
SHAWN GRAHAM: Your Honor, I don't know if it's the next witness, but the Defense counsel has notified us that they plan on recalling Roberta Thornsberry, the Defendant's grandmother, and they plan on publishing a video. We haven't -- we didn't receive the video in discovery. They showed it to us this morning. We have looked at it. It shows Tim, Sr., walking with one of his grandchildren. I don't know the date and they don't know the date. The Defendant is not in the video and we would object to its introduction. It has nothing to do with the Defendant's character. Whatever Tim, Sr's., relationship is with his grandchildren or Roberta Thornsberry's with her great-grandchildren has nothing to do with the character of the Defendant.
THE COURT: All right. Mr. Secor.
CASEY SECOR: Yes, sir. Just so that I can address -- my understanding is its relevance?
THE COURT: You heard what he said.
CASEY SECOR: I am trying to narrow it down.
THE COURT: I think relevance to Jones, Jr's., character. I think that was how he -- he didn't say those exact words, but that was the substance of his argument.
CASEY SECOR: Okay. Ms. Thornsberry is Tim's grandmother and the great-grandmother to the five victims in this case. Her relationship with her great-grandchildren is not only relevant to Tim's character and background as being a part of his family, immediate family and extended family. The video information about Ms. Thornsberry's relationship with her great-grandchildren is specifically relevant to the loss that she suffered, the consequence of the admission of these murders. She is both a mitigation witness and a victim impact witness because she was one of the people to be most significantly impacted by these crimes. She's not being called by the State because she doesn't want Tim to die. And so, they have chosen to disregard her as a victim in this case.
We have a right to present that information, for her to express to this jury the extent of her loss and be able to demonstrate that and explain that and have it corroborated with video evidence that shows that relationship, things that happened at her house in Mississippi. And for purposes of a relevance objection, there are numerous United States Supreme Court cases that discuss how mitigation is potentially, the South Carolina Supreme Court in State vs Mercer 381 SC 149 took a very critical view of objecting under evidentiary grounds to constitutionally permissible mitigation of evidence offered by the Defense in a Capital case. Green v. Georgia 442 U.S. 95, 1979, United States Supreme Court says evidence rules may not be imposed to bar otherwise relevant to mitigating evidence. Specifically, in reference to State v. Mercer, the South Carolina Supreme Court, application of rule 403 should be cautiously invoked against a Capital Defendant in a penalty case. Especially, in light of the due process implications at stake when a Capital Defense seeks to introduce mitigation evidence.
THE COURT: Summarize -- tell me about the video. How long is it and what's really depicted? Have I seen it already?
CASEY SECOR: It's, approximately a minute.
THE COURT: I previewed several videos earlier. Does this happen to be one of those?
CASEY SECOR: I don't believe so, but I can certainly provide Your Honor a copy of it if you want, right now if you would like. Ms. Thornsberry is not the next witness.
THE COURT: Okay. If she's not, then let's just keep on moving.
CASEY SECOR: She will be shortly, though.
THE COURT: Okay.
RICK HUBBARD: I do have one quick thing. If there is family or anybody -- since we have not really addressed this, I'm not exactly sure how they will phrase the question. It may not be a problem at all. Of course, we would object to any witness being called by the Defense who says they don't want the Defendant to get the death penalty or they want a life sentence. That goes to the ultimate issue of the jury. We do believe family and others can say they want mercy and they would like him to live. I know it seems like semantics, but that would be in line with State v. Wise and I've got a copy of that for Your Honor.
THE COURT: That's going to be the tenor of y'all's questions, those rules. But all the cases seem to suggest that.
CASEY SECOR: Questions will be tailored specifically to the outline of State v. Sapp.
THE COURT: So the answer to my question is yes or no? You know all of the rules about case name, I know there is another rule, not by case name.
CASEY SECOR: Yes, sir.
THE COURT: Will the questions be tailored towards --
CASEY SECOR: I'm sorry. I didn't mean to interrupt Your Honor.
THE COURT: The mercy for him to live? I mean, is that --
CASEY SECOR: Do you want him to die for what he did.
THE COURT: I thought that was not allowed.
CASEY SECOR: State v. Sapp specifically allows it and may I approach with a copy?
COURT REPORTER: Is that S-A-P-P or S-A-A-P?
CASEY SECOR: S-A-P-P.
THE COURT: Yeah.
COURT REPORTER: What did he say? S-A-P-P.
THE COURT: All right. What was the question going to be again?
CASEY SECOR: Do you want him to die for what he did.
RICK HUBBARD: I think they can ask, do you want him to die or do you want him to live, but not for what he did. It is going back to what this jury's got to decide. I think that's just another way of say, do you want the death penalty. I think that's the whole tenor of these cases saying a witness can't substitute for what the jury -- or go to the ultimate issue. The jury's got to decide. Do you want him to live. Do you want him to die.
CASEY SECOR: On page six of this, the Court points out, the mother testified at the sentencing. "I'm begging you, please don't take my son's life. Please, if you kill my son, you're going to devastate the community again, more and more families. Please, don't do it. Please, don't kill him."
RICK HUBBARD: That's different than for what he did. I mean, it's not going to the ultimate issue. So, I mean --
THE COURT: It's very semantic and I kind of agree with you both. That was the question that was asked, but do you want to see him die for what he did. For what he did, I think, is suggested that it's not allowed.
CASEY SECOR: Well, I don't think that that is telling them what decision to arrive at, but I think that the suggestion that there's anything different between do you want him to die or do you want him to die for what he did --
THE COURT: There's a difference. I mean, they--
CASEY SECOR: Well --
THE COURT: If you were on the other side, you would be arguing vigorously that there's a huge difference. I agree with you, there's a small difference.
CASEY SECOR: I think that to ask somebody who is a family member, another person, do you want them to die. I would hope, in most situations, would be no, we don't want anybody in your family to die, knowing that they will, of course, eventually, at some point. But there's a difference between, do you want him to die for what he did. Do you want him to die for murdering your five great-grandchildren. That is a significant difference. Of course, there's one, but the State doesn't want the jury to know because it's powerful and impactful, but it is relevant mitigation, it's relevant victim impact testimony, it is how Ms. Thornsberry feels.
RICK HUBBARD: Your Honor, my response is, they will go not just to that issue at that point. The jury has got to ask. If they do that, it's also going to be highly inflammatory. It's going to -- it's intended to inflame the passions of the jury for their side and we're restrained from that. We've played by those rules. I think they can just ask, do you want him to live, do you want him to die. They're going to talk about how much they love him. The jury knows.
THE COURT: I think we need to stay away from, for what he did or for behavior in his case. That end clause, do you want him to live, do you want him to not die, sure. But certainly, the jury knows. The suggestion is, for what he did, for what he has done. But the cases seen tell us to steer away from that because it goes too close to the ultimate issue.
CASEY SECOR: Well, I would just, again, reiterate that paragraph on the last page of Sapp where the Court, the defendant's mother saying, "I'm begging you, please don't take my son's life." Which seems to me to be a pretty strong way of telling them what to do and I'm not asking to do that.
THE COURT: I know, but her response is not your question.
CASEY SECOR: No. You're right. That's true.
THE COURT: So ask the question without the, for what he did, for what he has done. Leave that out. I don't think that's in here. I think these things say stay away from that.
CASEY SECOR: About that quote, Your Honor, I would just point out that the Court says, under Johnson and Wise, two other cases, should have been permitted to ask the question as to whether she would like to see Sapp put to death. To me that, I want to--
THE COURT: If that's the question, do you want to see him put to death, do you want to see him die. I mean, that's very close -- closely worded with put to death for what he has done. It's the, for what he has done, is where we're -- you and I are disagreeing, I think, on what this case allows.
RICK HUBBARD: And if you read it with Wise, I think that the germane question for every witness, if they want to elicit that is, do you want to see him live, do you want to see him die. They're going to talk about their emotional attachment. That's clear.
THE COURT: I mean, what else are they talking about?
RICK HUBBARD: Right. So, I mean, it's clear. I mean, they give what they want, but without telling the jury what to do. One quick follow-up, too, Judge. I know we just got that video. We'd like to know, is there any other videos that they've got or anything we need to be looking at? We also got notice this morning that there's a witness that was never on the witness list that's going to be testifying tomorrow, an expert. We just kind of need to know so we don't have to keep stopping the Court and that's why I'm using the downtime as time to bring that up.
THE COURT: All right, fair inquiry. All right. You got one more thing to say about the--
CASEY SECOR: I would just say that, I think, the distinction that is attempted to be drawn by cases regarding this issue is, that a witness is allowed to say what they wish to have occurred, but not to tell the jury what they ought to do.
THE COURT: Okay.
CASEY SECOR: I believe that that's the distinction.
THE COURT: I think you may be right. But just so that I'm more comfortable with your questions, don't tag for what he has done or for what he's done to his grandkids. I want that left off.
CASEY SECOR: Yes, sir.
THE COURT: I don't think that's prejudicial to you to leave that off.
CASEY SECOR: And I'd just respectfully ask -- respectfully request that you note my objection to that ruling.
THE COURT: Okay.
RICK HUBBARD: And, Your Honor, just for my clarification. Is he going to be asking, do you want him put to death or do you just want him to die?
THE COURT: I think he's going to ask, put to death.
RICK HUBBARD: I think that's the jury's -- that's their call. That's why I would object to that. I think, do you want him to die, they know exactly what's being asked of them. But they are the ones who have been charged with that task. So I would just ask Your Honor, if we can just stop at that point, I won't object and I know they've got plenty of witnesses that will express that opinion.
THE COURT: I like the characterization of showing mercy. But it appears that the Sapp, Johnson would allow that question to be answered. Johnson, Wise and Sapp. So the characterization -- that's an awful question. Whether you would like to see someone die or put to death. It's almost a leading question.
CASEY SECOR: My characterization of the question is, obviously, I consider the interpretation of the question to the Court fairly as authorized.
THE COURT: It appears it's allowed. Apparently, that whether the witness would like to see the Defendant put to death appears to be allowed on page six under the Johnson and Wise analysis.
RICK HUBBARD: That's fine, Your Honor.
THE COURT: It sure seems leading to me.
RICK HUBBARD: Sure.
THE COURT: So we'll allow that to that extent. Let's go. Bring the jury, please. (Whereupon, the jury came into open court at approximately 11:05 a.m.)
THE COURT: All right. Call your witness.
ROBERT MADSEN: The Defense calls Robert Brannon.