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From:
[email protected] (Myra Dinnerstein)
Subject: SIDEBARS - July 10, 1995
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Date: Fri, 21 Jul 1995 18:21:34 GMT
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Sidebars from July 10, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE ARE OVER AT THE SIDE BAR,
MR. COCHRAN.
MR. COCHRAN: I PROMISED I WOULD APPROACH THE BENCH BEFORE
I TALKED ABOUT THE LETTER OR WHATEVER AND WHAT I WANTED TO DO IS
BEFORE I MENTION THAT I WANT TO HAVE A 402 HEARING ON THAT
ASPECT.
BUT THERE IS A COUPLE THINGS I WANTED TO BRING UP
BEFORE THE LUNCH HOUR AND THERE -- A COUPLE OF THESE STATEMENTS
THAT WILL BE MADE BY HIM ABOUT WATCHING T.V. OR WHATEVER, HE SEES
SOMETHING ON THE TELEVISION OR SOMETHING LIKE THAT, I THINK IS
STATE OF MIND, SPONTANEOUS UTTERANCES THAT WILL BE EXCEPTIONS TO
THE HEARSAY RULE.
AND OBVIOUSLY I DON'T WANT TO ARGUE IN FRONT OF THE
JURY, SO I WANT TO MENTION THAT TO YOUR HONOR AGAIN.
THE COURT: UH-HUH.
MR. COCHRAN: SHE WAS GOING TO SAY THAT HER FATHER WAS
WATCHING T.V. AND WOULD TALK TO THE T.V.
I THINK SHE WOULD INDICATE THAT A COUPLE TIMES HE
SAID "HOW CAN ANYBODY SAY I WOULD DO THAT" OR "HOW WOULD ANYBODY
THINK I WOULD BE GUILTY" OR SOMETHING LIKE THAT, WORDS TO THAT
EFFECT WHEN HE IS TALKING TO THE T.V., SPONTANEOUS UTTERANCES AND
STATE OF MIND AND EXCEPTION TO THE HEARSAY RULE AS AN EXAMPLE.
AND I WOULD LIKE TO BE ABLE TO MARSHAL THOSE
PARTICULAR ACTUAL STATEMENTS.
THE COURT: MISS CLARK.
MS. CLARK: IT DOESN'T QUALIFY IN ANY WAY, SHAPE OR FORM AS
A SPONTANEOUS UTTERANCE.
NO. 1, WE ARE NOT TALKING ABOUT A STARTLING EVENT.
HE HAS ALREADY BEEN QUESTIONED BY THE POLICE AND KNEW EXACTLY
WHAT WAS GOING ON.
SELF-SERVING STATEMENT WITH NO INDICIA OF
TRUSTWORTHINESS MADE FOR THE BENEFIT OF ALL OF THEM AROUND IN
RESPONSE TO THE ACCUSATION ON THE TELEVISION AT THE TIME.
THERE IS NOTHING ABOUT THAT THAT QUALIFIES AS A
SPONTANEOUS UTTERANCE AND I WOULD REMIND ALSO THE COURT OF ITS
OWN RULING PERTAINING TO DENISE BROWN'S RESPONSE THAT HER SISTER
WAS MURDERED, THE PEOPLE'S ARGUMENT THAT THAT WAS A STARTLING
EVENT, AND SHE HAD NO KNOWLEDGE OF ANYTHING HAVING OCCURRED AT
THAT POINT WHEN TOM LANGE MADE THE NOTIFICATION, AND HER
IMMEDIATE RESPONSE WAS "HE DID IT, HE DID IT, THAT SON OF A BITCH
DID IT."
AND NOW WE HAVE A SITUATION THAT IS FAR LESS CREDIBLE
IN TERMS OF ITS TRUSTWORTHINESS WHERE SOMEONE HAS ALREADY BEEN
OBVIOUSLY QUESTIONED BY THE POLICE, ASKED TO TAKE A POLYGRAPH,
ASKED FOR BLOOD TESTS.
HE GOES BACK TO HIS HOME AT ROCKINGHAM WHEN THERE IS
ALL THE FRIENDS AND FAMILY AROUND THAT HE IS GOING TO NEED TO
SUPPORT HIS DEFENSE EFFORT AND HE IS MAKING RESPONSES TO THE
TELEVISION NEWS BROADCASTS THAT DON'T QUALIFY AS A STARTLING
EVENT, AND HIS UTTERANCES IN RESPONSE THERETO NOT ONLY LACK
TRUSTWORTHINESS, BUT THEY ARE NOT -- CAN I BORROW THE EVIDENCE
CODE FOR A SECOND?
THE COURT: KEEP GOING.
MS. CLARK: I JUST NEED THE EVIDENCE CODE FOR A SECOND,
YOUR HONOR. I WANTED TO SEE THE SPECIFIC LANGUAGE I WANTED TO
READ.
MS. CLARK: OKAY.
IT HAS TO PURPORT TO "NARRATE, DESCRIBE OR EXPLAIN AN
ACT, CONDITION OR EVENT."
HIS RESPONSE TO THE NEWSCASTS NEITHER EXPLAINS,
NARRATES OR DESCRIBES THE NEWSCASTS, NOR CAN THE NEWSCAST BE
TERMED TO BE AN ACT, CONDITION OR EVENT.
THESE ARE ALL ONGOING TELEVISION BROADCASTS THAT WERE
ON FOR THE ENTIRE DAY. IT ALSO HAS TO BE MADE SPONTANEOUSLY
WHILE THE DECLARANT IS UNDER THE STRESS OF EXCITEMENT CAUSED BY
THE PERCEPTION.
THE PERCEPTION WAS WAY EARLY ON AT THE POLICE
STATION, NOT NEWLY DISCOVERED AT THAT POINT.
THERE IS NOTHING, NOTHING IN THE MANNER IN WHICH ANY
OF THESE EVENTS TRANSPIRED WITH THE DEFENDANT THERE IN THE
FAMILY ROOM THAT QUALIFIES UNDER 1240 OF THE EVIDENCE CODE.
THE COURT: I TAKE IT WHAT YOU ARE TRYING TO SAY IS BASED
UPON THE OFFER OF PROOF THAT THERE IS AN INADEQUATE FOUNDATION?
MS. CLARK: NOT JUST AN INADEQUATE FOUNDATION, I'M SAYING
THERE CAN NEVER BE ADEQUATE FOUNDATION
FOR THE CIRCUMSTANCE UNDER WHICH THE UTTERANCES WERE MADE.
THE COURT: PERHAPS NOT NEVER, BUT IT IS CERTAINLY UNLIKELY
IS WHAT YOU ARE ARGUING?
MS. CLARK: YES.
MR. COCHRAN: YOUR HONOR, I THINK THAT COUNSEL -- I WOULD
LIKE, AS WE DO THIS 402, TO RENEW THIS, AND I WOULD LIKE TO SPELL
OUT WHAT I INDICATED TO THE COURT.
I WOULD LIKE AN OPPORTUNITY TO SPELL OUT THESE
THINGS.
THESE ONLY -- REFERS ONLY TO SPONTANEOUS. I THINK
THERE IS A STATE OF MIND EXCEPTION TO THIS.
AND THEY MAKE THIS BIG THING ABOUT THE STATE OF MIND.
LOOK AT ALL THE TIME THEY SPENT WITH PHILLIPS TALKING ABOUT HE
DIDN'T REACT LIKE A MAN WHO JUST HEARD HIS WIFE HAS BEEN KILLED
AND EVEN ASKED, "WHAT DO YOU MEAN SHE HAS BEEN KILLED?" AND WE
WENT THROUGH ALL THAT.
AND NOW --
THE COURT: BUT YOU HAVE ALSO BEEN ALLOWED TO GET IN
THROUGH THIS WITNESS THAT HE WAS UPSET, HE WAS DISTRAUGHT AND SHE
HAD NEVER HEARD HIM REACT IN THIS WAY EVER BEFORE IN HER LIFE,
AND THAT WAS CONTEMPORANEOUS TO THE SAME CONVERSATION WITH THE
DETECTIVES IN THE KITCHEN WHERE THE NOTIFICATION WAS MADE.
MR. COCHRAN: THAT IS TRUE.
THE COURT: YOU HAVE BEEN ALLOWED TO PRESENT YOUR PART OF
THAT.
MR. COCHRAN: YOU MAY FIND IT RELEVANT.
THE COURT: CERTAINLY.
MR. COCHRAN: ALL RIGHT.
THE COURT: THEN AT THIS THIS POINT, SINCE WE ARE FIVE
MINUTES TO THE NOON HOUR --
MR. COCHRAN: YES.
THE COURT: -- YOU ARE INDICATING YOU WANT AN OPPORTUNITY
TO HAVE A 402 HEARING TO PERHAPS PRESENT SOME ADDITIONAL --
MR. COCHRAN: YES.
THE COURT: MY INCLINATION IS TO TELL YOU THAT YOU HAVE AN
INADEQUATE FOUNDATION AT THIS POINT BASED UPON THE OFFER OF
PROOF.
MR. COCHRAN: JERRY UELMEN IS GOING TO HANDLE THE 402
ASPECT OF IT.
MS. CLARK: CAN WE TAKE IT UP AT 1:30, YOUR HONOR?
THE COURT: PROBABLY.
MR. DARDEN: CAN WE HAVE SOME SPECIFIC DISCOVERY AS TO WHAT
THE STATEMENT IS SUPPOSED TO BE?
THE COURT: WHICH STATEMENT?
MR. DARDEN: THE ONE THAT HE CLAIMS WAS SPONTANEOUS.
THE COURT: TO THE T.V.?
HE IS SAYING, "HOW CAN THEY ACCUSE ME OF THAT?" BLAH,
BLAH, BLAH.
MR. DARDEN: BLAH, BLAH, BLAH.
MR. COCHRAN: HE WANTS A REPORT, YOUR HONOR.
THE COURT: BLAH, BLAH, BLAH.
MR. COCHRAN: I WILL TRY TO WRITE HIM A REPORT OVER THE
LUNCH HOUR.
MS. CLARK: MR. GORDON WILL RESPOND TO THE MOTION. I GUESS
WE WILL TAKE THAT UP AT 1:30.
THE COURT: HAVE YOU GOT ANYTHING ELSE?
MR. COCHRAN: VERY LITTLE, IF ANY, BUT THIS WOULD BE WHERE
WE SHOULD PROBABLY CONCLUDE, SO I WANT TO DO THE 402 AND TALK TO
HER ABOUT THE STATEMENT.
IS THAT ALL RIGHT?
THE COURT: ALL RIGHT.
MS. CLARK: OKAY.
MR. SHAPIRO: YOUR HONOR, MAY I ASK YOU SOMETHING OFF THE
RECORD, PLEASE?
THE COURT: SURE.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR.
THE ISSUE IS WHETHER OR NOT THERE WAS A GOOD FAITH
BELIEF OR CAUSE TO ASK QUESTIONS OF ARNELLE SIMPSON REGARDING THE
TRIP WITH PAULA BARBIERI AND THE DEFENDANT TO HAWAII SOMETIME IN
'93, '94, AND THE COURT MAKES REFERENCE TO THE TRANSCRIPT AT PAGE
20444 STARTING AT PAGE -- EXCUSE ME -- LINE 24 AND GOING OVER TO
20445 ENDING AT LINE 8.
I FIND THERE WAS A GOOD FAITH BASIS FOR ASKING THE
QUESTION.
MS. CLARK: THANK YOU.
MR. SHAPIRO: MAY WE ALSO JUST FOR THE RECORD ASK YOU TO
REFER TO MY CROSS-EXAMINATION ON THAT QUESTION?
THE COURT: YES. I ALSO LOOKED AT PAGE 30 WHERE I
OVERRULED THE OBJECTIONS TO YOUR QUESTIONS.
MR. SHAPIRO: THANK YOU.
MR. COCHRAN: OFF THE RECORD.
(A DISCUSSION WAS HELD AT THE
BENCH, NOT REPORTED.)
