372 1 IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA 2 CASE NO. CTC01-00101MMANO-E 3 4 STATE OF FLORIDA ) ) 5 V. ) VOLUME III ) 6 JESSE PRINCE, ) ) 7 Defendant. ) ) 8 컴컴컴컴컴컴컴컴컴컴컴컴컴�) 9 PROCEEDINGS: Jury Trial 10 BEFORE: Honorable Michael F. Andrews 11 Judge of the County Court 12 DATE: May 23, 2001 13 PLACE: Division E Criminal Justice Center 14 14250 49th Street North Clearwater, FL 34620 15 REPORTED BY: Jennifer Fleischer, RPR 16 Notary Public - State of Florida 17 18 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� 19 KANABAY COURT REPORTERS TAMPA AIRPORT MARRIOTT HOTEL (727) 224-9500 20 ST. PETERSBURG - CLEARWATER (727) 821-3320 21 22 23 24 25 KANABAY COURT REPORTERS 373 1 APPEARANCES: Lydia Wardell, Esquire Criminal Justice Center 2 14250 49th Street North Clearwater, FL 34620 3 Assistant State Attorney 4 Denis DeVlaming, Esquire 1101 Turner Street 5 Clearwater, FL 34616 Attorney for the Defendant 6 Paul Johnson, Esquire 7 101 South Franklin Street Suite 101 8 Tampa, FL 33602 9 Helena Kobrin, Esquire 1100 Cleveland Street 10 Suite 900 Clearwater, FL 33755 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 374 1 INDEX 2 VOLUME I PAGE LINE 3 PRETRIAL MOTIONS . . . . . . . . . . 6 6 4 VOIR DIRE EXAMINATION . . . . . . . . 15 1 5 PRELIMINARY INSTRUCTIONS . . . . . . 145 25 6 OPENING STATEMENTS . . . . . . . . . 159 1 7 VOLUME II 8 STATE'S WITNESS: HOWARD CROSBY Direct Examination . . . . . . . 188 14 9 Cross-Examination . . . . . . . .220 23 Redirect Examination . . . . . 240 21 10 Recross Examination . . . . . . 248 22 11 STATE'S WITNESS: MICHAEL BRUNO Direct Examination. . . .. . . 251 3 12 Cross-Examination . . . . . . . 265 12 Redirect Examination . . . . . . 273 22 13 STATE'S WITNESS: STACY MACE 14 Direct Examination . . . . . . . 276 8 Cross-Examination . . . . . . . 282 9 15 STATE RESTS . . . . . . . . . . . . . 283 8 16 MOTION FOR JUDGMENT OF ACQUITTAL . . . 286 24 17 DEFENSE WITNESS: BARRY GASTON 18 Direct Examination . . . . . . . 312 2 Cross-Examination . . . . . . . 342 8 19 Redirect Examination . . . . . 369 5 Recross Examination . . . . . . 370 7 20 VOLUME III 21 DEFENSE WITNESS: BRIAN RAFTERY 22 Direct Examination . . . . . . . 381 1 23 DEFENSE WITNESS: JOSEPH FABRIZIO Direct Examination . . . . . . . 399 9 24 25 KANABAY COURT REPORTERS 375 1 INDEX CONTINUED 2 VOLUME IV PAGE LINE 3 DEFENSE WITNESS: FRANK OLIVER Direct Examination . . . . . . . 436 3 4 Cross-Examination . . . . . . . 465 5 Redirect Examination . . . . . . 477 22 5 PROFFERED TESTIMONY: DENEEN PHILLIPS 6 Direct Examination . . . . . . . 469 21 Cross-Examination . . . . . . . 525 5 7 JURY CHARGE CONFERENCE: . . . . . . . 528 13 8 DEFENSE RESTS . . . . . . . . . . . . 559 8 9 STATE'S REBUTTAL WITNESS: DENEEN PHILLIPS 10 Direct Examination . . . . . . . 560 1 Cross-Examination . . . . . . . 594 3 11 Redirect Examination . . . . . 608 5 12 STATE'S RESTS: . . . . . . . . . . . . 613 13 13 MOTION FOR JUDGMENT OF ACQUITTAL . . . 613 19 14 VOLUME V 15 STATE'S CLOSING REMARKS . . . . . . . 622 22 16 DEFENSE CLOSING REMARKS . . . . . . . 637 22 17 STATE'S REBUTTAL REMARKS . . . . . .. 647 8 18 JURY INSTRUCTIONS . . . . . . . . . . 661 12 19 ALLEN CHARGE . . . . . . . . . . . . 692 8 20 VERDICT . . . . . . . . . . . . . . . 696 22 21 22 23 24 25 KANABAY COURT REPORTERS 376 1 EXHIBITS 2 3 STATE'S EXHIBITS RECEIVED PAGE LINE 4 STATE'S NO. 1 - Investigative 195 15 Assistance Agreement 5 STATE'S NO. 2 - Marijuana Sent To 264 15 6 The Laboratory 7 STATE'S NO. 3 - Photographs 261 4 8 STATE'S NO. 4 - Photographs 261 4 9 STATE'S NO. 5 - Photographs 259 22 10 STATE'S NO. 6 - Photographs 259 22 11 STATE'S NO. 9 - Marijuana Plant 263 18 12 13 DEFENSE EXHIBITS RECEIVED PAGE LINE 14 DEFENSE NO. 1 - Black Flower Pot 195 16 15 DEFENSE NO. 2(A-I) - Photographs 410 7 16 DEFENSE NO. 3 - Pot With Dead 410 16 Root System 17 DEFENSE NO. 5 - Videotape 393 2 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 377 1 P-R-O-C-E-E-D-I-N-G-S C-O-N-T-I-N-U-E-D 2 (OUTSIDE THE PRESENCE OF THE JURY) 3 THE COURT: Members of the press, our 4 next witness that comes in to testify is not 5 to be photoed or videotaped. Do you 6 understand? You all need to cut the camera. 7 We're going to cut the courtroom cameras. 8 Okay? Thank you. 9 I anticipate that we're going to take this 10 one witness next, and he'll be the last witness 11 of the evening and then we'll break until 12 morning. Here's my next question: How many 13 people do you anticipate you'll call tomorrow. 14 MR. DEVLAMING: Judge, I'm probably 15 going to -- and I'd like you to remind the 16 parties that I'm going to need Mr. Fabrizio 17 to stay over on deposition. 18 THE COURT: Is Mr. Fabrizio actually 19 here today? 20 MR. DEVLAMING: Yeah. 21 THE COURT: I'm sorry to stay over? 22 MR. DEVLAMING: In other words, he 23 knows -- he knows he has to come back. 24 THE COURT: Yes, sir, okay. Fabrizio 25 will be one. KANABAY COURT REPORTERS 378 1 MR. DEVLAMING: Right. Then I'm going 2 to either -- I might call one or both of my 3 investigators. Probably only one. 4 THE COURT: Do we think they're long 5 witnesses? 6 MR. DEVLAMING: No. Well, I don't know 7 how long the cross -- no. Lydia's saying 8 the cross is -- 9 THE COURT: What about Mr. Fabrizio, a 10 long witness? 11 MR. DEVLAMING: No, no. I think the 12 two longest witnesses, Judge, for me are 13 Gaston and Raftery. 14 MS. WARDELL: Well why, as a courtesy, 15 don't we knock Fabrizio out tonight since 16 he's been here all day? 17 THE COURT: Well, I promised them 18 seven, and seven it is. Now, if we can get 19 finished with Mr. Raftery sometime within 20 maybe a half hour or forty-five minutes, 21 then I'll ask them to take another witness 22 and we can try that. 23 MS. WARDELL: Okay. 24 THE COURT: Now here's my reason for 25 asking you this. It is my intent to not KANABAY COURT REPORTERS 379 1 start this trial again until 10 a.m. the 2 reason I don't want to start until 10 a.m. 3 is because I've got advisories in the 4 morning. Although there is a judge covering 5 for me, it will be far better if I did the 6 advisories in the morning. Enough said on 7 that. 8 So I would like to not start until about 9 ten. I can ask you all to be here at 10 nine-thirty and see if I can rocket through the 11 advisories and maybe we can start then. I'm 12 hoping that -- the real question is do you think 13 that we need to start at eight in order to 14 finish this trial tomorrow? That's my real 15 question. 16 MR. DEVLAMING: Oh, we'll get done, 17 Judge. Almost no doubt. Well, whoa, I hate 18 to say that. That -- the only other is 19 going to be Frank Oliver. 20 THE COURT: The only other is going to 21 be who now? 22 MR. DEVLAMING: Frank Oliver is flying 23 in from Miami. Remember she said she wanted 24 to proffer him? 25 THE COURT: I see. Yeah. KANABAY COURT REPORTERS 380 1 MR. DEVLAMING: That's limited 2 testimony. 3 THE COURT: Okay. 4 MS. WARDELL: I don't want this on the 5 record. 6 (A DISCUSSION WAS HAD OFF THE RECORD) 7 THE COURT: All right. Let's bring 8 them back. 9 (IN THE PRESENCE OF THE JURY) 10 THE COURT: I understand there may be 11 some grumbling. I said seven and seven it 12 is. Unless we can just squeeze one more -- 13 no. 14 Please call your next witness, 15 Mr. DeVlaming. 16 MR. DEVLAMING: Yes, your Honor. The 17 Defense calls Brian Raftery. 18 * * * * * * * * * * * * * * * * * * * * * * * * 19 Whereupon, 20 BRIAN RAFTERY, 21 the Defense witness herein, being first duly 22 sworn upon oath, was questioned and testifies as 23 follows: 24 THE COURT: Sir, you may proceed at 25 this time. KANABAY COURT REPORTERS 381 1 DIRECT EXAMINATION 2 BY MR. DEVLAMING: 3 Q Good afternoon. 4 A Sir. 5 Q Tell us your name. 6 A May name is Brian Joseph Raftery, 7 R-a-f-t-e-r-y. 8 Q Mr. Raftery, I'm not going to ask where you 9 reside, but if you could tell us what you do for a 10 living. 11 A I'm a private investigator, and I have my 12 own private investigative agency. 13 Q And do you have a primary client? 14 A Yes, I do, sir. 15 Q Who is your primary client? 16 A My primary client is Moxon and Kobrin Law 17 Firm. 18 Q And their primary client? 19 A Their primary client would be the Church of 20 Scientology. 21 Q And would you say that most of your work is 22 done for the law firm of Moxon and Kobrin for that 23 client? 24 A Yes, sir. 25 Q Now, do you know a man by the name of KANABAY COURT REPORTERS 382 1 Jesse Prince? 2 A Yes, sir. 3 Q And as part of your duties working for the 4 Moxon law firm on behalf of the Church of 5 Scientology, have you surveilled Mr. Prince? 6 A Yes, I have, sir. 7 Q And could you tell us how long you have 8 surveilled Mr. Prince? 9 A In terms of time? 10 Q Yes. 11 A I probably first observed Mr. Prince a 12 couple of years ago when he came -- I'm thinking 13 perhaps this is privileged. I'm sorry. 14 Q Well, did you surveil him as it relates to 15 a time period of February 7, 2000, to August 11? 16 A Yes, I did. 17 Q And on what regularity would you surveil 18 Mr. Prince? 19 A I would surveil Mr. Prince quite regularly 20 during that time period, either during the 21 surveillance where I was specifically keeping track 22 of him and knowing where he was, or I would even 23 observe him when I didn't and I wasn't on 24 surveillance. I would just see him. 25 His office is located right downtown in KANABAY COURT REPORTERS 383 1 Clearwater right beside one of the main buildings of 2 the Church of Scientology. My primary function is 3 security work with the church, and consequently I 4 would see Mr. Prince almost daily. 5 Q Okay. Would you ever report to anybody 6 about Mr. Prince's activities? 7 A Yes. 8 Q You know a man by the name of Ben Shaw? 9 A Yes. 10 Q And does he work for the Office of Special 11 Affairs in the Church of Scientology? 12 A That's correct, sir. 13 Q And would he be your liaison on who you 14 would report to concerning whatever you learned about 15 Jesse Prince? 16 A Either he or Mr. Moxon. 17 Q Okay. And what position does Mr. Shaw have 18 within the church to your knowledge? 19 A He is the chief of the Office of Special 20 Affairs. 21 Q And that's headquarters here in Clearwater? 22 A Yes, sir. 23 Q Mr. Raftery, as part of your reason for 24 surveilling Mr. Prince, were you asked to find out 25 any intelligence information that might help the KANABAY COURT REPORTERS 384 1 Church of Scientology in a pending civil case 2 involving Lisa McPherson or the estate of Lisa 3 McPherson versus the Church of Scientology? 4 A The primary reason why I was surveilling 5 Jesse Prince is his history of violence. He's 6 repeatedly been involved in either attacks, verbal, 7 physical attacks on members or parishioners of the 8 church. So the first reason that I would be 9 observing him and keeping track of him and his 10 associates was for that purpose. The second purpose 11 was that I did know, in fact, that he is involved in 12 a very large civil suit. 13 Q Okay. And that he's listed as an expert to 14 testify about the procedures and the practices -- 15 MS. WARDELL: Judge, again, leading. 16 Could we get the answers from the witness? 17 THE COURT: The objection is leading? 18 MS. WARDELL: Yes, sir. 19 THE COURT: Sustained. 20 BY MR. DEVLAMING: 21 Q You just said that the -- that it involves 22 a large lawsuit. Do you know what position 23 Mr. Prince has in that lawsuit? 24 A No, I really don't know exactly what his 25 position would be, no. KANABAY COURT REPORTERS 385 1 Q The word "expert witness" does not sound 2 familiar to you at all, Mr. Raftery? 3 A If you're telling me that's his only 4 function, then I have heard that, yes, sir. 5 Q All right. And based upon the information 6 that you would be gathering from the sources we'll go 7 into in a minute, were you the main liaison to the 8 Office of Special Affairs in the church? In other 9 words, was it mainly Raftery that would report to the 10 church, or was it Gaston or was it Fabrizio or your 11 son? 12 A Certainly it wasn't my son. I don't know 13 what the reporting procedures were between 14 Mr. Fabrizio and Mr. Gaston and the church or 15 Mr. Moxon. 16 Q You said that part of your reason for 17 surveillance was because of Jesse's history and his, 18 let's call it, antagonism with the church. Certainly 19 this investigation that started on February 7 20 involving Wilson's liquor store and Maccabees and all 21 that, that was primarily to be able to provide 22 surveillance information, not to protect 23 parishioners, correct? 24 A When -- it is to provide information, yes, 25 sir. Now, the way it originally began, Mr. Prince KANABAY COURT REPORTERS 386 1 was regularly going into a very, very rough area in 2 downtown Clearwater. 3 Q Where was that area? 4 A That area is called Greenwood. 5 Q Is that a predominately black area? 6 A Yes, it is, sir. 7 Q All right. And is that where predominantly 8 black Americans have their homes? 9 A Well, I don't know if it's predominantly 10 black Americans. 11 Q Well, I mean -- 12 A That neighborhood is black neighborhood. 13 Q It's a black neighborhood, right? 14 A Yes, sir. 15 Q All right. Do you see anything wrong with 16 Mr. Prince going into a neighborhood bar where blacks 17 live and work? 18 A In a high-crime area where prostitution and 19 drugs use, yeah, I would say that this would be 20 indicative of the type of character he is. 21 Q You don't take into account that he might 22 want to go -- 23 MS. WARDELL: Objection, Judge. There 24 is no indication this witness is hostile. 25 MR. DEVLAMING: I'll withdraw. I'll KANABAY COURT REPORTERS 387 1 withdraw it. I'll withdraw it. 2 BY MR. DEVLAMING: 3 Q Okay. Who is Joseph Fabrizio? 4 A Joseph Fabrizio is a private investigator. 5 Q Okay. Is he also hired by the Moxon law 6 firm whose main client is the Church of Scientology? 7 A I don't know. 8 Q Well, did you discuss -- 9 A No. 10 Q You do know or you don't? 11 A No, I don't. No, sir. 12 Q Okay. Well, did -- did you work with 13 Fabrizio in this surveillance? 14 A Yes. 15 Q Okay. What did you think he was? 16 A You asked me if I knew who hired him, and I 17 said, no, I don't. Now, if you're asking me who -- 18 did I know he was working in this investigation, yes, 19 I do. 20 Q All right. What was it? 21 A Pardon me, sir? 22 Q Okay. 23 A Let's start again. 24 Q Let's start again. Okay. You're on the 25 same team as Fabrizio, right, on the surveillance of KANABAY COURT REPORTERS 388 1 Mr. Prince? Same team. 2 A Yes. 3 Q Okay. Well, let me ask you, during the 4 course of this investigation, did you ever call him 5 on the cell phone and tell them where they could find 6 Mr. Prince? 7 A Yes, sir. 8 Q Did you ever say, "Hey, listen I think if 9 you go to Maccabees in the African American section 10 of town you may run into him"? 11 A I could have. 12 Q Okay. Did you ever tell them he might be 13 at Wilson's liquor store with his fiancee and maybe 14 that's where you can go and surveil him? 15 A Again I can't -- I don't recall that 16 specifically, and I would have if I had known. 17 Q Okay. And there were times when you saw 18 Mr. Prince coming from Clearwater Beach, for example, 19 and you would get on your cell phone and tell 20 Fabrizio which way he is headed? 21 MS. WARDELL: Objection. Leading. 22 THE COURT: Sustained. 23 BY MR. DEVLAMING: 24 Q Would you have contacted with Mr. Fabrizio 25 about how they could find Jesse Prince? KANABAY COURT REPORTERS 389 1 A Yes. 2 Q All right. And would he call you on 3 occasion, or was he mostly the one doing the 4 surveillance? 5 A Say that to me again, sir. 6 Q Okay. Would you call Fabrizio and say, 7 "This is where you can find Prince," or would 8 Fabrizio call you and say, "Brian, this is where you 9 can find Prince," or vice versa? The same. 10 A Sometimes I would call him. Sometimes he 11 would call me. 12 Q Do you know a Brian Gaston -- excuse me, 13 Barry Gaston? 14 A Yes, sir. 15 Q And what do you know him to be? 16 A A private investigator. 17 Q And did you meet him in regards to this 18 investigation? 19 A Yes, sir. 20 Q Did you debrief him? 21 A Yes, sir. 22 Q Did you ever have meetings at the end of 23 the day where he would talk about his ability to 24 surveil Mr. Prince and what he learned? 25 A Yes. KANABAY COURT REPORTERS 390 1 Q All right. Sometimes you'd meet at 2 Eckerd's parking lot? 3 A Yes, sir. 4 Q All right. And would you do this almost 5 every day that Gaston was in town? Would you have 6 some sort of debriefing every time he was in town? 7 A There would usually be some sort of a 8 debriefing. 9 Q And then you would report back to Mr. Shaw 10 or -- 11 A Yes, sir. 12 Q -- the liaison? 13 A Uh-huh. 14 Q Was again Shaw the intermediary that got 15 Fabrizio and you together? Would you call him the 16 intermediary? 17 A I believe he was the person who told me 18 that Fabrizio and Gaston had been hired. 19 Q Okay. So Mr. Shaw is telling you that 20 Gaston now may be able to help out. Fabrizio may be 21 able to help out. That's where you learned of their 22 two names, and then you worked together? 23 A Yes, sir. 24 Q If I asked you what your surveillance car 25 looks like, would you tell me? KANABAY COURT REPORTERS 391 1 A I wouldn't be able to. 2 Q You use all kinds of different ones? 3 A Yes, sir. 4 Q All right. Did you surveil Mr. Prince's 5 house during this time period to see him leave in the 6 morning? 7 A I have. 8 Q Did you specifically surveil Mr. Prince's 9 home on April 11, 2000, when he was arrested? 10 A I don't think he was arrested in April. 11 Q I'm sorry. My eyes are so bad. I'm 12 looking back there. August. 13 A August 11th? 14 Q Yes, sir. 15 A I'll tell you exactly how that happened. I 16 do what you call drive-bys. My house is not in 17 Clearwater, so when I'm driving into Clearwater I 18 will drive by someone's house who is involved with 19 Mr. Prince at the Lisa McPherson Trust and just 20 observe what cars might be there, who's involved. 21 The morning of August 11th I saw a Largo 22 police car drive down the street on Belleair right by 23 Mr. Prince's house. And the officer turned his head 24 to look at the property, and I thought to myself I've 25 never seen a Largo police officer on Belleair before. KANABAY COURT REPORTERS 392 1 So I pulled over a little bit up the road and saw 2 that officer turn around and come back, and I assumed 3 there would be -- I've spent thirty years in this 4 business. I was a special agent in the Drug 5 Enforcement Administration. And I assumed that there 6 would be an arrest taking place sometime. So I drove 7 around the block, put up my camera and they pulled 8 in. 9 Q That lucky? 10 A Yeah. 11 Q Okay. All right. If I show you what's 12 been marked as Defense Exhibit -- this is going to 13 be -- what is my next one? 14 THE CLERK: NO. 5. 15 BY MR. DEVLAMING: 16 Q Marked for identification or it will be as 17 NO. 5. It says Brian Raftery tape. If it will help 18 you so we can save time, this was provide by your 19 attorney to me. Did you make a videotape of the -- 20 of your surveillance that day? 21 A Yes, sir. 22 Q Okay. Your Honor, at this time I would 23 offer into evidence Defense Exhibit NO. 5 at this 24 time. 25 THE COURT: Any objection, State? KANABAY COURT REPORTERS 393 1 MS. WARDELL: No, sir. 2 THE COURT: Be received. 3 MR. DEVLAMING: Okay. 4 BY MR. DEVLAMING: 5 Q Just so you know, Mr. Raftery, I have 6 played a portion of that already to this jury, and if 7 we were to watch the whole thing, it starts out with 8 basically you hitting the record button and basically 9 waiting, and occasionally you'll zoom in, but then 10 sometimes there's no activity, nobody's coming out of 11 the door. Do you remember that? 12 A Yes. 13 Q Okay. And after quite a bit of period of 14 time you eventually see Mr. Prince come out, correct? 15 A I haven't watched it since the day I took 16 it, so -- 17 MS. WARDELL: Judge, I would object. 18 The video speaks for itself. He can play it 19 or play it later. Play it now or play it 20 later, but there's no need to ask him what's 21 on the video. 22 MR. DEVLAMING: Well, I'm just laying a 23 predicate, Judge. 24 THE COURT: Overruled. 25 BY MR. DEVLAMING: KANABAY COURT REPORTERS 394 1 Q My question to you, Mr. Raftery, is when 2 you watch this video you zoom right in to make sure 3 you get every aspect of Mr. Prince in handcuffs. Did 4 you give that tape to Mr. Shaw so the Scientologists 5 could see it? 6 A I gave the tape to Mr. Moxon. 7 Q And were you careful to make sure that you 8 got as much of the footage of Mr. Prince in handcuffs 9 and being arrested as you could? 10 A What I did was I was careful to include 11 everything that took place. 12 Q We hear a cell phone go off on that tape. 13 Do you remember that? 14 A No, sir. 15 Q Okay. You don't remember a cell phone 16 where you say, "Not now"? Does that sound familiar? 17 A If the cell phone had gone off, I would 18 have said that, yeah. 19 Q Okay. You did not want to be disturbed 20 when you were videotaping this man being placed in 21 custody? Is that what you're saying? 22 A I'm saying that it could have been my son, 23 it could have been my mother calling me, it could 24 have been -- I don't know who's on there, but I know 25 it's being recorded and I didn't want whatever the KANABAY COURT REPORTERS 395 1 conversation was on the tape. 2 Q When you first -- when you were meeting 3 with Gaston, did you tell Gaston a little bit about 4 Mr. Prince? Did you tell him about some of his 5 habits and a little bit about him? 6 A Yes, sir. 7 Q Was it you that showed a picture of Jesse? 8 You know if you showed Mr. Gaston -- 9 A I don't remember doing that. 10 Q Okay. You don't recall telling Mr. Gaston 11 that Jesse is a chronic alcoholic? 12 A I could have used those words. 13 Q You've just told us how long you've been 14 involved in surveillance and law enforcement work. 15 In fact, you worked for the United States government. 16 Let me ask you, Mr. Raftery, would you ever bring 17 alcohol during the course of an investigation to a 18 chronic alcoholic? 19 A Would I bring alcohol to a chronic 20 alcoholic. 21 Q Yes, sir. If you were investigating him 22 and you went to his home? 23 A Perhaps I would. When you go to someone's 24 home it's customary to bring something. 25 Q How about flowers? KANABAY COURT REPORTERS 396 1 A Flowers are a good idea also. 2 Q What is your hourly rate? 3 A Sixty dollars an hour, sir. 4 Q You bill on the basis of an hourly week? 5 A Yes, sir. 6 Q How many? 7 A Sixty. 8 Q For this client? 9 A Yes, sir. 10 Q If my math is right, that's $187,200 a year 11 roughly? 12 A I'm a college graduate. I was a captain in 13 the marine corp. 14 Q I'm not saying you're not worth it. 15 A I was a supervisor in the DEA. 16 Q I'm not saying you're not worth it, 17 Mr. Raftery. Sixty hours a week is probably more 18 than I put in. So, I mean -- and would you say you 19 get paid a guaranteed sixty hour week? 20 A Yes, sir. 21 Q Okay. Can you put in for more than sixty? 22 A Not usually. What I'll do is just take a 23 little comp time if I can. 24 Q After the arrest of Mr. Prince, did you 25 call Detective Howard Crosby up? KANABAY COURT REPORTERS 397 1 A There's some confusion on this. I read 2 Officers Crosby's report, his deposition. 3 Q You read his deposition? 4 A Yes, sir. And in the deposition he said 5 that I called him and suggested something that -- 6 charging Jesse with something. I forget. Something 7 about a school distance. That wasn't me. I did not 8 make that phone call. 9 Q Did you call him repeatedly during the 10 course of this investigation? 11 A I called him frequently, especially in the 12 beginning. 13 Q What -- 14 A It was difficult to locate the officer. He 15 had days off. He had schools. He left the area. 16 There's only one narcotics officer in Largo. So in 17 order to begin the case to get he and Barry together 18 and so forth, it was quite difficult. I called a 19 number of times. 20 Q How many times do you think you talked to 21 him? 22 A I talked to him a lot less than I called 23 him. I would get the answering machine or I would 24 just leave a message at the desk or something. 25 Q So there were several times he could KANABAY COURT REPORTERS 398 1 recognize your voice. He would know it was 2 Brian Raftery -- 3 MS. WARDELL: Objection as to what he 4 believes another witness can do. 5 THE COURT: Sustained. 6 MR. DEVLAMING: That's fine. That's 7 all. Thank you, your Honor. 8 THE COURT: Any cross? 9 MS. WARDELL: No, sir. 10 THE COURT: Sir, you're still under -- 11 I'm sorry. Do the jurors have any 12 questions? Sir, you are still subject to 13 subpoena, so you must -- you know, if we 14 need you, you must return. At this time, 15 however, you may step down. 16 Ladies and gentlemen of the jury, I do 17 believe before seven o'clock we can get one more 18 witness in. That might make it little slower 19 come tomorrow. Would you all like to do that? 20 A little better come tomorrow rather. All 21 right. Are you prepared to call your next 22 witness at this time, Mr. DeVlaming? 23 MR. DEVLAMING: I am. 24 THE COURT: Please call your next 25 witness. KANABAY COURT REPORTERS 399 1 MR. DEVLAMING: I call Joseph Fabrizio. 2 * * * * * * * * * * * * * * * * * * * * * * * * 3 Whereupon, 4 JOSEPH FABRIZIO, 5 the Defense witness herein, being first duly 6 sworn upon oath, was questioned and testifies as 7 follows: 8 THE COURT: Sir, you may proceed. 9 DIRECT EXAMINATION 10 BY MR. DEVLAMING: 11 Q Good afternoon. 12 A Good afternoon. 13 Q Would tell the jury your name, please. 14 A Joseph C. Fabrizio. 15 Q Would you spell your last name for the 16 court reporter. 17 A F-as in Frank-a-b-r-i-z-i-o. 18 Q Mr. Fabrizio, tell us what you do for 19 living? 20 A I'm president of J.F. Charles and 21 Associates Incorporated in Tarpon Springs. 22 Q Okay. You have a little bit of a soft 23 voice. So I'm okay, but I'm not so sure it carries 24 that well, so I'm going to ask you just speak up a 25 little bit. KANABAY COURT REPORTERS 400 1 A I'm president of J.F. Charles and 2 Associates Incorporated. 3 Q Okay. What is that? 4 A It's a private investigative agency. 5 Q And are you former law enforcement? 6 A Yes. I spent twenty-five years in law 7 enforcement. I retired July 31, 1992, as a 8 detective. 9 Q New Jersey? 10 A In New Jersey, yes. 11 Q When you came down here to Florida you 12 started an investigative agency? 13 A Yes, I did. August 5, 1993. 14 Q Are part of your duties as a private 15 investigator sometimes surveillance? 16 A Yes. 17 Q Were you approached to do some work as 18 related to a Jesse Prince in the year 2000? 19 A Yes, I was, by law firm Moxon and Kobrin. 20 Q And do you know who their client was? 21 A I didn't ask them at the time. I was -- as 22 far as I was concerned, they were my client. 23 Q Okay. Who do you understand their client 24 to be now? 25 A I believe it's the church. KANABAY COURT REPORTERS 401 1 Q Which church? 2 A The Church of Scientology. 3 Q And did you have discussions with that law 4 firm about what the objective was in investigating 5 Mr. Prince? 6 A Yes. 7 Q All right. And what was that objective? 8 A There was several. We were basically 9 concerned about the security of the members of the 10 congregation and the staff, and also we were 11 attempting to obtain information that would impeach 12 his credibility with respect to future litigation. 13 Q Specifically did it have to do with a 14 wrongful death case, the Lisa McPherson case? 15 A Quite frankly, I'm not sure. 16 Q Okay. Did you have a meeting to make a 17 decision on strategy, that is, how you could 18 accomplish this goal of gaining this information? 19 A A meeting with whom? 20 Q Well, meeting with either Moxon's law firm 21 or with church members or anything like that? 22 A With Kendrick Moxon, yes. 23 Q Okay. And in your discussions with him was 24 it determined that it would be best to find an 25 African American private investigator to help you? KANABAY COURT REPORTERS 402 1 A Yes. That was my decision. 2 Q And did you feel that it would be easier to 3 be able to look at Mr. Prince's life, so to speak, if 4 you had somebody that could get closer to him because 5 of that situation? 6 A Actually, at that point in time the only 7 reason I hired a black investigator is because we 8 were working -- we were going to be working in a 9 potentially black area. Actually it's an all black 10 area. So anyone white and black would be immediately 11 suspected as a salt and pepper team. So I chose to 12 use Barry Gaston. 13 Q Okay. Gaston came into town -- and I'm 14 trying to save some time because we've been here all 15 day and some of this has come out already. And on -- 16 you had your first meeting with him about 17 February 7th of 2000? 18 A We started February 7. I had -- I spoke -- 19 I believe it was latter -- the latter part of 20 January, early February. 21 Q Okay. But specifically on February 7 you 22 met with a Jim Leigh, L-e-i-g-h, at Perkins 23 restaurant along with Mr. Gaston? 24 A That's correct. 25 Q All right. And did you early in the KANABAY COURT REPORTERS 403 1 investigation bring any photographs so Gaston could 2 know who the individual was that was the subject of 3 this investigation? 4 A Oh, yes. 5 Q All right. 6 A They were not actual photographs. They 7 were colored Xerox copies. 8 Q Was it of full body or was it of 9 Mr. Prince's face? 10 A It was a full frontal shot. 11 Q Full facial shot? 12 A A full frontal facial shot. 13 Q Okay. And did Mr. Gaston study it? 14 A Yes, he studied it. 15 Q Okay. Now from February 7 till April 1, 16 which is the first time Mr. Gaston had actually come 17 in contact with Mr. Prince, were you working -- were 18 you the main PI that was working with Mr. Gaston when 19 he would come into town for surveillance? 20 A He subcontracted with me, so he was my eyes 21 and ears. 22 Q Okay. So you were the -- okay, good. He 23 was your eyes and ears, so he would report to 24 Joseph Fabrizio each time he was in town and report 25 to you what he learned, correct? KANABAY COURT REPORTERS 404 1 A Correct. 2 Q All right. And from February 7 to April 1, 3 you would send him out to different places, but at no 4 time did he ever see Jesse Prince at this bar 5 Maccabees or in this section of town; is that 6 correct? 7 A If you're talking about the first section, 8 Greenwood -- 9 Q Yes. 10 A -- where Maccabees is. 11 Q Yes. That is -- what I just said is 12 correct? 13 A Yes. 14 Q All right. But he ended up being able to 15 meet with him at Wilson's; is that right? 16 A Actually Jesse met -- approached him, and 17 was. 18 MS. WARDELL: Judge, I would object. 19 This witness is testifying to what he's read 20 about what another witness said. He has no 21 personal knowledge. 22 THE COURT: Your objection is hearsay? 23 MS. WARDELL: Hearsay and no personal 24 knowledge. 25 THE COURT: Lack of personal knowledge. KANABAY COURT REPORTERS 405 1 Any response? 2 MR. DEVLAMING: No. 3 THE COURT: Sustained. 4 MR. DEVLAMING: Okay. 5 BY MR. DEVLAMING: 6 Q When Mr. Gaston would do what Mr. Gaston 7 was doing, did you specifically discuss with Gaston 8 what he could and could not do, in other words, what 9 boundaries he had? 10 A I do that with every investigator. 11 Q Okay. Are you aware, Mr. Fabrizio, that on 12 fifty occasions that Mr. Gaston took the Fifth 13 Amendment in this court? 14 A No, I'm not. 15 MS. WARDELL: Objection. It's improper 16 to ask one witness to comment on the 17 testimony of another. 18 THE COURT: Sustained. 19 BY MR. DEVLAMING: 20 Q Okay. Were you talking daily, at least 21 once a day, to Mr. Gaston when he was in town doing 22 his surveillance work on Mr. Prince? Would you talk 23 to him at least once a day? 24 A I would say approximately. That's not 25 something I would keep track of if I spoke once or KANABAY COURT REPORTERS 406 1 more than once or less than once or not at all. 2 Q So you're saying there are days that he 3 came into town and did work and you had no contact 4 with him? 5 A No. I said that on -- you didn't make 6 yourself clear. I mean, are you asking me on the 7 days he came into Clearwater to work, or any day in 8 particular? 9 Q No. The days he came into town to do work, 10 would you see him at least once during that time? 11 A Yes, I would. 12 Q Was there any discussion between you and 13 Mr. Gaston about Gaston getting into, that is being 14 able to get into, Mr. Prince's house? 15 A No, that never came up initially. 16 Q How about after? How about after April 1 17 but before April 15, were there any strategy reasons, 18 I mean, discussions about getting into the Prince 19 house? 20 A There was no discussions at that point in 21 time that I could recall. 22 Q Did you know, Mr. Fabrizio, that he was 23 going to be going to the Prince residence and did on 24 April 15th of 2000? 25 A He had called me on the cell phone and told KANABAY COURT REPORTERS 407 1 me, and I gave him instructions to do whatever he 2 felt comfortable with. 3 Q Did you also tell him that if he ever saw 4 any drugs that he was not to do any investigation 5 thereafter until it specifically involved a law 6 enforcement officer that could give him direction? 7 A I said if he was an invited guest into the 8 house and he observed anything illegal, that illegal 9 activity could be reported to me. 10 Q Okay. To you. My question to you is when 11 that occurred was law enforcement immediately 12 supposed to be contacted so that they could get a 13 handle on and directly supervise Barry Gaston? 14 A I had indicated that at the point in time 15 it becomes criminal, that's our obligation. It's 16 actually mandated that we report these -- our 17 findings and or observations to the police 18 department, and that was done by Brian Raftery and 19 Barry Gaston. 20 Q Okay. You're still not answering my 21 question. Maybe I'm not making it clear. Did you 22 then tell Gaston that once he involved law 23 enforcement he was not to go and conduct any further 24 investigation that involved drugs unless Crosby was 25 involved, law enforcement was involved? KANABAY COURT REPORTERS 408 1 A I told Mr. Gaston that at the point in time 2 it was criminal and the police were involved that he 3 was not to enter the house. 4 Q Okay. And you since found out that he did, 5 correct? 6 A I -- I -- you would have to be more 7 specific. I mean, this happened a long time ago and 8 so I'm being honest with you. You have to be more 9 specific. 10 Q Let's be real specific. 11 A Okay. 12 Q April 24, 2000, is when Gaston became a 13 confidential informant. 14 A Yeah, he was a CI. 15 Q Okay. My question to you is was he 16 supposed to go in to the Prince house any time after 17 he became a confidential informant unless it was 18 under the supervision of Largo Police Department? 19 MS. WARDELL: Asked and answered. 20 THE COURT: Overruled. 21 THE WITNESS: I beg your pardon? 22 MR. DEVLAMING: The judge says you can 23 answer it. 24 THE WITNESS: He was not supposed to. 25 He was not instructed to go into the house KANABAY COURT REPORTERS 409 1 unless he was with the undercover officer. 2 MR. DEVLAMING: Thank you. That's all 3 I wanted. Thank you. That's all I have. 4 THE COURT: That's all you have? All 5 right. Any cross? 6 MS. WARDELL: No, sir. 7 THE COURT: Sir, you may step down. 8 You are still under subpoena. 9 THE WITNESS: Okay. 10 MR. DEVLAMING: Judge, I could call a 11 real quick one. 12 THE COURT: All right. Let's do it. 13 MS. WARDELL: Wait a minute. Who? 14 MR. DEVLAMING: May I have a moment. 15 THE COURT: One moment. 16 MR. DEVLAMING: Your Honor, at this 17 time the Defense would move into evidence 18 Defense Exhibit 2-A through I, which report 19 to be photographs of Mr. Prince's house and 20 lanai area. 21 THE COURT: All right. And any 22 objection? 23 MS. WARDELL: No. Let's just get the 24 date they were taken on the record. 25 MR. DEVLAMING: Judge, on the back of KANABAY COURT REPORTERS 410 1 each one says August 14, 2000. 2 THE COURT: Okay. Anything else? 3 MR. DEVLAMING: Well -- 4 THE COURT: Basically are you objecting 5 to these? 6 MS. WARDELL: No. 7 THE COURT: They shall be received 8 then. 9 MR. DEVLAMING: All right. Your Honor, 10 at this time I would offer into evidence 11 Defense Exhibit NO. 3 marked for 12 identification which is the pot that was 13 shown to the seizing officer. 14 THE COURT: Any objection? 15 MS. WARDELL: No, sir. 16 THE COURT: Also received. 17 MR. DEVLAMING: Judge, at this time I 18 think we can -- that was that one fast 19 witness I told you about, so -- 20 THE COURT: Okay. All right. Ladies 21 and gentlemen, at this point in time I think 22 it's a good place for us to break and we 23 shall start early in the morning. Well, not 24 early actually. Ten o'clock is when I'm 25 looking forward to starting. You all -- ten KANABAY COURT REPORTERS 411 1 o'clock. All right. Here's the thing. We 2 might -- I'll tell you what, if you will be 3 here, please, by like nine-fifteen because 4 it's my intent maybe to start at 5 nine-thirty. 6 Now, don't be disappointed if we start at 7 ten. There's -- we may have to start at ten. 8 Okay? If you all could please be here by 9 nine-fifteen and the bailiff will tell you where 10 to report and we shall ask you all to have a 11 good night. 12 MS. WARDELL: Judge, may we approach 13 before you release -- 14 THE COURT: Oh, one more thing. Make 15 sure that you -- please approach anyway. 16 Make sure that you read no reports, don't 17 look at the TV, you can't look at the paper. 18 If you get the paper, I ask that you don't 19 read it until this trial is over. Do you 20 understand? Did you need to approach for 21 any other reason? 22 MS. WARDELL: I just wanted to remind 23 you of that. 24 THE COURT: Okay. All right. Thank 25 you very much. We shall see you all in the KANABAY COURT REPORTERS 412 1 morning. 2 (OUTSIDE THE PRESENCE OF THE JURY) 3 THE COURT: For the attorneys, do we 4 anticipate any special instructions that may 5 be presented to the jury? Are you going to 6 be seeking an entrapment defense instruction 7 on this one, Mr. DeVlaming? 8 MR. DEVLAMING: I don't know yet, 9 Judge. 10 THE COURT: You're not sure yet? 11 MR. DEVLAMING: No. 12 MS. WARDELL: Okay. Just the last 13 issue of Oliver now. 14 THE COURT: What time do you anticipate 15 he'll be here? 16 MS. WARDELL: Because, like I said, 17 that's going to be the proffer. 18 THE COURT: We need to proffer 19 Mr. Oliver. 20 MS. WARDELL: Right. And then I'm 21 going to argue whether or not it's 22 admissible. 23 THE COURT: Have you already -- do 24 you -- you don't need to depose him. You've 25 got whatever he did in the last trial. KANABAY COURT REPORTERS 413 1 MS. WARDELL: I'll waive deposing him 2 because I've got an idea what he is going to 3 say, so I don't want to take the time to do 4 that. 5 THE COURT: Are you at this time 6 telling me that you will be objecting to his 7 testimony? 8 MS. WARDELL: I would like to hear what 9 he has to say. 10 THE COURT: Okay. But you don't need 11 to depose him? 12 MS. WARDELL: No, sir. 13 THE COURT: So you know what he is 14 going to say -- 15 MS. WARDELL: I'm anticipating what 16 he's going to say and I'm anticipating an 17 objection, but I would like to hear it. I 18 would like the Court to hear it. 19 THE COURT: Well, let me ask you a 20 better question. Is there some way you can 21 just tell me what you think he is going to 22 say that you were objecting to? 23 MS. WARDELL: Yes, sir. 24 THE COURT: Okay. What is that? 25 MS. WARDELL: I think that he is -- I KANABAY COURT REPORTERS 414 1 think he is going to testify to certain 2 practices. I think he is going to interpret 3 religion that he believes to exists within 4 the Church of Scientology. 5 THE COURT: So he is going to go into 6 the policy, I believe, I heard of what's 7 called "fair game?" 8 MS. WARDELL: Right. And I would like 9 to, after he testifies as to what he 10 believes it is and what he believes the 11 impact it has had on this particular 12 defendant, I would like to voir dire him on 13 his qualifications to make that opinion. 14 Because I would point out to the Court and 15 let you know where I'm going ahead of time, he 16 was only a member for approximately a year. 17 September '87 to around January '88, then again 18 February '91 to November '91. So he was really 19 only a member in the church for about a year, 20 and his membership is almost now ten years 21 stale, and it would be my position that anything 22 he learned or gleaned with regards to the church 23 policy back then is too remote in time and too 24 old. 25 If they want to bring a defector from a KANABAY COURT REPORTERS 415 1 year ago, two years ago, six months ago, maybe 2 three years ago to come in and talk about what 3 current fair game is or is not, then that's a 4 different story. But they're bringing somebody 5 that defected or left the church ten years ago. 6 And again, that's my first reason, that he 7 is too remote in time; number two, that any 8 testimony that he would provide would be a 9 comment on a religious belief as specifically 10 prohibited by 90.611. I got a couple cases on 11 that if you want to see them tonight -- 12 THE COURT: I would like to see them 13 tonight. 14 MS. WARDELL: -- and think about it. 15 And I apologize I only brought one. I'll 16 give the cite and bring it to you. 17 MR. DEVLAMING: That's fine. 18 MS. WARDELL: So like I said, I think 19 that all of the testimony is going to end up 20 being a comment on a specific religious 21 belief, and that's expressly prohibited. 22 My number three reason for excluding him is 23 that he would basically be commenting on the 24 credibility of what has really now turned into a 25 defense witness, but a witness nonetheless. By KANABAY COURT REPORTERS 416 1 talking about fair game and the ties with the 2 church, you're basically impeaching the church, 3 if you will, and one witness commenting on the 4 credibility of another witness is absolutely 5 prohibited. You follow what I'm saying. 6 THE COURT: I follow what you're 7 saying. Okay. You got some case for me? 8 Mr. DeVlaming, I assume you have some also? 9 MR. DEVLAMING: Well, I'll tell you, 10 Judge, really what I was looking for was -- 11 I think it would help you if you read the 12 proffer which is going to be identical that 13 we did in front of Judge Morris. It's not 14 going to change, and I think it would just 15 be a springboard. 16 THE COURT: Do you happen to have it? 17 MR. DEVLAMING: Well, I'm looking for 18 it. 19 MS. WARDELL: I got it if he doesn't, 20 Judge. 21 MR. DEVLAMING: Do you, Lydia? 22 THE COURT: Do you happen to have a 23 copy of it? 24 MS. WARDELL: I do for you, Judge. 25 MR. DEVLAMING: Did you have one? KANABAY COURT REPORTERS 417 1 Because I have one. Let me just take a 2 quick look. Mine is unmarked. 3 THE COURT: Yours is marked. 4 MR. DEVLAMING: Un. 5 THE COURT: Unmarked? May I have it, 6 please? 7 MR. DEVLAMING: Yes. 8 THE COURT: Okay. All right. You have 9 no particular case law, though, 10 Mr. DeVlaming; is that accurate? 11 MR. DEVLAMING: No, Judge. I have 12 argument. I may have something in the 13 morning, but I don't think you're going to 14 find anything that talks about religion 15 itself. 16 THE COURT: Is there anything else I 17 need to address before morning? We never 18 did get to the question on special 19 instructions. At this point we don't have 20 an answer to that; is that correct? 21 MR. DEVLAMING: I'm not anticipating 22 any, Judge. 23 THE COURT: Okay. 24 MS. WARDELL: That leaves us with 25 Emmons and then whether or not I'm going to KANABAY COURT REPORTERS 418 1 call rebuttal, correct? 2 THE COURT: Whether or not you'll call 3 any -- well, Emmons and possibly -- and 4 maybe Mr. Oliver and possibly one other 5 person. 6 MS. WARDELL: I didn't mean -- 7 MR. DEVLAMING: She meant Oliver. 8 MS. WARDELL: Oliver in my rebuttal. 9 Emmons I think -- Emmons was going to do all 10 those predicates, and I just said fine. 11 MR. DEVLAMING: And I'm going to talk 12 to my client tonight about being a witness. 13 THE COURT: Okay. If there is nothing 14 else, then we stand in recess. I'd ask you 15 all to be here by nine-thirty and that we 16 may put that gentleman on the stand at 17 nine-thirty if necessary to hear his 18 proffer. Okay? 19 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 20 END OF TRIAL DAY ONE 21 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 22 23 24 25 KANABAY COURT REPORTERS