11.Planned Mitigation Proffers
67 linesTHE COURT: Before we stand down. What are you all -- you said about proffering some more, maybe, the social historian, or are you going to do that tomorrow? Before we take a break, what have you all got in mind? Because you all are kind of running the --
CASEY SECOR: We were thinking about beginning the proffer of the social historian, Deborah Grey's testimony to give Your Honor an idea of why we think it's necessary to the story. The bulk of the first half of it is information before Tim's birth. So I assume that the Court's ruling would, obviously, be the same about that not being presented to the jury unless, of course, Your Honor would change his mind.
THE COURT: All right. How long are you expecting the proffer to take, just for the benefit of the jury. I mean, do we need to send them home or give them an extended break after we take ours. That's kind of what I'm asking. Time wise, how do I manage the jury. What are you thinking because I have told you that one Juror has a 5:00 o'clock commitment and it's a few minutes to 3:00. We can work as close to 5:00 as y'all like.
CASEY SECOR: I would be surprised if I could get it done in the amount of time. It would make sense to keep the jury until 5:00. We've worked over the weekend to try to shorten it the most effective way we possibly can, but because of the magnitude of the information and the number of people in the family with various issues, it just, unfortunately, takes a while to get through.
THE COURT: All right. And likewise, the proffer in the morning of Dr. Flores. How long with her?
BOYD YOUNG: Your Honor, I think it would be probably 30 to 45 minutes.
THE COURT: Were you wanting to do her early?
BOYD YOUNG: She can be here at 9:00.
THE COURT: All right. Well, let's think about it. Mr. Secor, you're thinking we're going to take 45 minutes to an hour with her proffer? I'm asking you. We're going to take a couple of minutes and you get me an answer. If we're talking an hour or more or an hour or less and let's work off of that. It would be my hope that we could get the proffer done and, maybe, some testimony. But if we can only get the proffer done, then so be it. I'd like Dr. Flores first, and then go into the social historian as either follow-up or initial testimony for the jury.
CASEY SECOR: I think that the proffer of Dr. -- of Deborah Grey's testimony would take up the remainder of the day.
BOYD YOUNG: One other issue for the record, Your Honor. We would request to present the audio tape of the proffer of Bethany Yeiser at this point during this phase of the case.
THE COURT: Is she the one from Cincinnati?
BOYD YOUNG: Yes, sir.
THE COURT: From a videotaping?
BOYD YOUNG: We did not videotape her. We just have the audio tape from the Court Reporter.
THE COURT: I thought that, the media recorded it. Let me ask, I don't know, we can find out. If we did, we will put that in.
COURT REPORTER: That is the one that was proffered.
THE COURT: I know but the media may have recorded it for us. I don't remember, I will ask them.
BOYD YOUNG: I've inquired.
THE COURT: All right. We're going to take a couple of minutes and I'll probably excuse the jury. I'll think about it for a minute and let me know.
CASEY SECOR: Yes, sir.
THE COURT: We will do the best we can because I don't want to impose on them if we don't have to.
RICK HUBBARD: Is there any other like short witness that we could fit in before we do the proffer because we can stay late on a proffer. But get the jury while we've got them.
THE COURT: Yeah. So you all answer that question.
(Whereupon, a short break was taken.)
THE COURT: Maybe, I misunderstood you, Mr. Young. I thought you said you wanted to proffer -- replay the audio of the young girl from Cincinnati. You want to play the testimony for the jury?
BOYD YOUNG: I want to play what was previously offered as a proffer as evidence for the jury.
THE COURT: Okay. I misunderstood you at break.
RICK HUBBARD: I did not hear what he just said. I'm sorry.
THE COURT: What he said was, he wants to present the audio recording of the young lady from Cincinnati and her testimony for the jury. I thought he was offering to proffer in this portion.
RICK HUBBARD: I thought it was a proffer for this phase outside of the jury.
BOYD YOUNG: I want her testimony played for the jury is what it was. What was previously taken as her proffer.
THE COURT: I understand and I think -- I don't see the difference in proffering -- I mean, excuse me. I don't see the difference in my ruling changing, as far as mitigating factors, in this phase as to her presenting on her history and schooling, onset of schizophrenia and the four years of homelessness, living in the dorm in the library and then the treatment, how is that relevant to the mitigation?
BOYD YOUNG: It's her dealing with auditory hallucinations and how they presented themselves with her and the different types of them and how she explains them.
THE COURT: Solicitor, do you want anything on the record?
RICK HUBBARD: Your Honor, we still think it's not relevant. In fact, under 403, even in this phase, it can confuse more than it could help because you're talking about a different individual. We've already had Dr. Maddox say that schizophrenia affects people different ways. Her life experience is very interesting, but it in no way parallels the Defendant's. I think it just -- it confuses the situation. So I think, under 403 and 801 -- I mean, under 401, it's just not relevant and it's confusing and prejudicial.
THE COURT: I can't think of why -- I think this is different now, Mr. Young. It wasn't guilt or innocence under 403 -- but I think I ruled under 401, 402 and 403 that it was not relevant. First of all, for 401 and 2, but if it was relevant, it was confusing and prejudicial and I don't see that it would help the finder of fact because it wasn't associated with Mr. Jones' behavior. It was different. So it's confusing, if it was determined to be relevant. I don't think it would be -- I think it would be prejudicial and confusing if it were played or presented during any phase. Also still now.
RICK HUBBARD: Additionally, Your Honor. It was offered as a proffer. We didn't ask her any questions. So in effect, it would be testimony without State cross because we acted under the belief that it was just a proffer.
THE COURT: Okay. And we don't need to replay that as a proffer here?
BOYD YOUNG: No, sir.
THE COURT: Okay. You can mark the testimony as an Exhibit, which Joy already has, and republish it as a proffer herein.
BOYD YOUNG: Yes, sir.
THE COURT: Okay.
BOYD YOUNG: We would object under State V. Mercer, 381 SC 149, that the application of Rule 403 should be cautiously invoked against Capital Defendant in the penalty phase especially in light of due process and of the State when a Capital Defendant seeks to introduce mitigation.
THE COURT: Okay. The record is protected.
BOYD YOUNG: As far as -- the State chose not to cross her. They certainly had an opportunity to do so and that is part of the purpose of a proffer. It's not just -- it's for them to exercise their opportunity to cross if they so choose and they chose not to.
THE COURT: Okay. That's fine. My analysis is not on the State not having an opportunity to cross. It's more of -- not taking the opportunity to cross. I still think it's a relevance issue.
RICK HUBBARD: Your Honor, as to Deborah Grey. I'm still not exactly sure what the basis is. They're not even attempting to call her.
THE COURT: Yes, they are.
RICK HUBBARD: As a witness before the jury. Are they?
THE COURT: Yeah. They're going to call her as a witness before the jury. They just want to proffer before they have her testimony.
RICK HUBBARD: Okay. Is that what we're doing?
THE COURT: No. That's what we're --
RICK HUBBARD: See, I'd been told --
THE COURT: Here's what I understood -- my question beforehand was, how much of a proffer can we get done today. What they basically said is we hope we can get all of it today. And then tomorrow will be the testimony she's going to present in front of the jury. Correct?
RICK HUBBARD: I'm sorry. I'd been told that we were just going to put her up here and proffer her and that we're sending the jury home.
THE COURT: Well, we are, but she's going to testify tomorrow post-proffer.
RICK HUBBARD: Post-proffer.
THE COURT: I mean, '81 to now. Am I right?
CASEY SECOR: That's my understanding. That's my intention.
THE COURT: Okay. (Whereupon, the jury came into open court at approximately 3:20 p.m.)
THE COURT: All right, folks. I'm sorry for the delay. I'm going to send you all right back out and send you on home. Okay? I've got to listen to some issue on the record and it may take closer to 4:30, 5:00 o'clock that I've got to listen to. I'm not going to make you all sit around for an hour, hour and a half. I'm going to send you all home. Don't talk about the case. Leave everything here. 9:00 o'clock tomorrow, 10:00 o'clock be back in the jury room. I have got some stuff in the morning. I'm trying to keep you all out of trouble, from sitting in the jury room for an extended period of time. So I'm sorry for keeping you back for fifteen minutes. Anyway, see you all in the morning about 10:00. (Whereupon, the jury was excused from the courtroom for the day.)
BOYD YOUNG: Whenever you're ready --
THE COURT: I've been waiting on you.
BOYD YOUNG: Oh, I'm sorry.
THE COURT: I was about to leave. I thought we were done.
BOYD YOUNG: Thank you, sir. The Defense calls Deborah Grey.