IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO. CTC01-00101MMANO-E STATE OF FLORIDA ) ) V. ) VOLUME I ) JESSE PRINCE, ) ) Defendant. ) ) ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ) PROCEEDINGS: Jury Trial BEFORE: Honorable Michael F. Andrews Judge of the County Court DATE: May 23, 2001 PLACE: Division E Criminal Justice Center 14250 49th Street North Clearwater, FL 34620 REPORTED BY: Jennifer Fleischer, RPR Notary Public - State of Florida ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ KANABAY COURT REPORTERS TAMPA AIRPORT MARRIOTT HOTEL (727) 224-9500 ST. PETERSBURG - CLEARWATER (727) 821-3320 KANABAY COURT REPORTERS 2 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 3 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 4 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 5 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 6 1 P-R-O-C-E-E-D-I-N-G-S 2 THE COURT: All right. We shall take a 3 ten-minute recess and you all should bring 4 the jury in. 5 MS. WARDELL: Judge? 6 THE COURT: Are there motions? I'm 7 sorry. 8 MR. DEVLAMING: Well -- 9 MS. WARDELL: I had a couple issues. 10 Number one, I was going to ask the Court if 11 you were going to address pretrial publicity 12 in light of today's article and Saturday's? 13 THE COURT: There was an article today? 14 MS. WARDELL: Yes, Tampa Tribune. It's 15 pretty detailed, and it actually gets into 16 some deposition statements. 17 THE COURT: I have not seen any 18 articles. 19 MS. WARDELL: I can get it off the 20 computer and bring it back if you want to 21 see it. I didn't know -- 22 THE COURT: I would like to see the 23 article. 24 MS. WARDELL: -- if you wanted to leave 25 it up to us to cover it or if you had KANABAY COURT REPORTERS 7 1 intended to cover it and maybe separate 2 those that read it. So I was just hoping to 3 get some guidance from the Court on that 4 issue. 5 MR. DEVLAMING: Before we leave that, I 6 didn't either, Judge. Maybe it's a 7 regional -- 8 THE COURT: I believe it is probably 9 regional, because I have a north county 10 paper, and I've looked -- and I actually 11 specifically looked for an article, and I 12 did not find one. 13 MS. WARDELL: I'll bring it to you 14 because I checked for that very purpose. 15 THE COURT: Are you going to be asking 16 for a separation in individual, or at least 17 if not individual then regional lines, so to 18 speak, jury voir dire relating to that. 19 MR. DEVLAMING: I'm not, and I don't 20 know what Miss Wardell cares to do. I 21 usually like the Court to handle that 22 initially, and then if it's something that 23 we need to individually go through -- I'm 24 not going to ask for -- 25 MS. WARDELL: Judge, it was much, much, KANABAY COURT REPORTERS 8 1 more detailed than Saturday's. 2 THE COURT: Saturday's I saw which was 3 not very detailed. 4 MS. WARDELL: This is much more 5 detailed. And, number two, the Defense has 6 listed a witness. His name is Frank Oliver. 7 I haven't brought this up prior. Mr. 8 Oliver's in Miami, and we were going to do 9 his depo but we got running so late that 10 date that we did him, we ended up agreeing 11 that I wouldn't do his depo. 12 I read his prior testimony that he gave in 13 a case in Division E about a year and a half 14 ago, and Mr. DeVlaming represents that if he's 15 allowed to testify it is going to be similar 16 testimony. 17 My position, so as not to surprise the 18 Court, is that I think that if it gets to that 19 point, that Mr. Oliver should have to proffer 20 his testimony. I want to voir dire him on his 21 qualifications and things of that nature and 22 then have your Honor rule whether or not that 23 testimony is admissible. 24 THE COURT: Is Mr. Oliver apparently 25 some sort of an expert? KANABAY COURT REPORTERS 9 1 MS. WARDELL: He wants -- he wants to 2 testify about all the fair game things that 3 you've heard about. 4 THE COURT: Okay. We'll cross the 5 bridge when we get to it. 6 MS. WARDELL: I was hoping to do the 7 proffer before he was allowed to testify. 8 THE COURT: Okay. 9 MR. DEVLAMING: Before we leave that, 10 Judge, that's correct. And I told 11 Miss Wardell I will not mention that in 12 opening statements. However, and I know 13 that we've given the Court an awful lot 14 already on this case to read, what might be 15 helpful, since Mr. Oliver won't go on until 16 tomorrow, is if you want to give the Court a 17 little jump-start on what I have given you, 18 in other words, what he testified to at last 19 trial, that will be the parameters of it. 20 It might be some help to the Court. 21 THE COURT: I'd be happy to read it. 22 MS. WARDELL: Well, I prefer to hear 23 what he is going say this time because 24 obviously the last time it went to that 25 defendant and how that defendant was caught KANABAY COURT REPORTERS 10 1 up in fair game, if you will, and I would 2 like the Court to have it fresh, no taint if 3 you will, of what this guy's going to say. 4 MR. DEVLAMING: Judge, that's fine. 5 THE COURT: However you all wish to 6 handle this is fine with me, and we can 7 cross the bridge when we get to it. 8 MS. WARDELL: Okay. And, thirdly, 9 Judge, Ms. Kobrin had an issue she'd like to 10 raise. 11 THE COURT: Ms. Kobrin? I'm sorry. Is 12 it Kobirn or Kobert? 13 MS. KOBRIN: Kobrin. 14 THE COURT: Kobrin. Okay. 15 MS. KOBRIN: Your Honor, the issue that 16 I had mentioned to Miss Wardell, 17 Mr. DeVlaming handed me a subpoena the other 18 day on Mr. Fabrizio, and we're willing to 19 make him available to appear. I just wanted 20 to raise the issue that this subpoena is not 21 signed, it's not sealed, it's not a 22 subpoena. It's just a draft of a subpoena. 23 THE COURT: Do you wish to respond to 24 that? 25 MR. DEVLAMING: Well, I mean, her KANABAY COURT REPORTERS 11 1 caveat is fine with me. She just said she 2 would have him here, so -- 3 THE COURT: As long as you're willing 4 to produce him -- 5 MS. COBRIN: I just wanted to raise the 6 issue that what was given to me was not a -- 7 I didn't look at it at the time, but it's 8 not an actual subpoena. 9 THE COURT: But you will have him here, 10 will you not? 11 MS. COBRIN: We don't want to, you 12 know, cause a problem, and I don't know if 13 perhaps you should issue another one, but -- 14 THE COURT: Well, yeah, I don't know 15 that it's going to be required or, rather, 16 necessary for him to issue another one if 17 you are at this time as an officer of the 18 court saying you will produce him. 19 MS. KOBRIN: I will produce him. I 20 just wanted to put on the record that this 21 subpoena was not -- for whatever reason, it 22 was not signed and sealed. 23 THE COURT: Okay. Thank you, ma'am? 24 MR. DEVLAMING: Just so as a courtesy 25 to Mr. Johnson too, he is apparently on KANABAY COURT REPORTERS 12 1 vacation in Long Boat Key or something. I 2 told him he did not have to produce either 3 one of the witnesses that were subpoenaed in 4 this case until one. I hope that's all 5 right with you Miss Wardell. 6 I didn't think Miss Wardell had intended to 7 call Mr. Gaston, Mr. Raftery or Mr. Fabrizio, so 8 I took it upon myself, since I am the one that's 9 going to call him, to say one o'clock. Is that 10 all right? 11 MS. WARDELL: Whatever the Court -- 12 MR. DEVLAMING: No. But I mean -- 13 THE COURT: Do you need him before one? 14 MS. WARDELL: Well, I don't know how 15 the time table is going to go but, right, if 16 now you're asking me do I need him, the 17 answer is no. But you know -- 18 THE COURT: Okay. The point 19 Mr. DeVlaming is making is that he didn't 20 anticipate you would call them, and he had 21 given them permission to not come here until 22 at least one o'clock today. 23 MS. WARDELL: That's fine. 24 THE COURT: Okay. 25 MR. DEVLAMING: Thank you. KANABAY COURT REPORTERS 13 1 THE COURT: Any other matters I need to 2 address? 3 MR. DEVLAMING: No, sir. 4 MS. WARDELL: I'll bring the article 5 up, though. 6 MR. DEVLAMING: Oh, actually there is 7 one other matter. I'm sorry. Your Honor, 8 you received a communication from 9 Mr. Bunker, who is this gentleman here with 10 the beard, about the ability to -- 11 THE COURT: -- videotape. 12 MR. DEVLAMING: Yeah, videotape. I 13 understand the media is here. What 14 Mr. Bunker would like to do since the media 15 is not going to cover full gavel to gavel, 16 is to go downstairs where he will not be, 17 you know, in the courtroom, and if there is 18 a feed from these stationary cameras, to be 19 able to use those for his documentary work. 20 THE COURT: What Mr. Bunker needs to 21 understand is that in my courtroom only one 22 camera works and it focuses on me the entire 23 time. That's not going to help him. 24 MR. DEVLAMING: No, it -- is that 25 right, Judge? None of them -- KANABAY COURT REPORTERS 14 1 THE COURT: That's a fact. The only 2 one that's going to ever work is that one 3 sitting there, and it focuses on me the 4 entire time and I understand that I don't 5 show up very well on it for obvious reasons. 6 MR. DEVLAMING: Judge, then could I ask 7 whether or not he would be able to be as 8 nonintrusive as is Chanel 13 and go over on 9 this side of the courtroom? 10 THE COURT: I've already spoken with 11 Mr. Bunker as it relates particularly to 12 that, and I am uninclined to assist him 13 today. 14 MR. DEVLAMING: Okay. So the only 15 thing would be the media room on the court? 16 THE COURT: Yes. 17 MR. DEVLAMING: Okay. Thank you. 18 Might I step down now? 19 MS. WARDELL: Yes. And do you want me 20 to just have the bailiff run you back the 21 article when they get it? 22 THE COURT: Please. We shall take 23 fifteen. 24 (A RECESS WAS HAD) 25 (THE JURY PANEL WAS DULY SWORN) KANABAY COURT REPORTERS 15 1 VOIR DIRE EXAMINATION 2 THE COURT: Please have a seat. Good 3 morning. 4 THE PROSPECTIVE JURORS: Good morning. 5 THE COURT: I'm Judge Andrews, and I'll 6 be presiding over this case today. This is 7 a criminal case. And the defendant in this 8 case, Mr. Prince, is charged with the 9 offense of possession of marijuana. 10 You all approach the bench one moment, 11 please. 12 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 13 THE COURT: Do you want me to read this 14 one? I'll read it. 15 MS. WARDELL: It's handwritten on -- 16 THE COURT: -- May 7 through August 6. 17 MR. DEVLAMING: And/or. Not through 18 there, and/ors. 19 THE COURT: May 7th and/or August 6th 20 and/or August 11, 2000? 21 MS. WARDELL: Right. 22 THE COURT: Thank you. 23 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 24 THE COURT: Mr. Prince is charged with 25 possession of marijuana. And again, this is KANABAY COURT REPORTERS 16 1 a criminal case. And I will read to you the 2 charging document in this case. It's called 3 an information. It reads as follows: 4 The State of Florida versus 5 Jesse Prince Jr,. 6 it says Bernie McCabe, State Attorney for 7 the Sixth Judicial Circuit of Florida, in and 8 for Pinellas County, prosecuting for the State 9 of Florida, in said County, under oath. The 10 information makes that Jesse Prince, Jr., in the 11 County of Pinellas and State of Florida on 12 May 7th and/or August 6th -- May 7, 2000, and/or 13 August 6, 2000, and/or August 11, 2000, in the 14 County and State aforesaid, did unlawfully 15 possess and have in his control a certain 16 controlled substance, to wit: Cannabis, 17 commonly known as marijuana, which contains less 18 than 20 grams of cannabis; contrary to Chapter 19 893.13, Florida Statutes, and against the peace 20 and dignity of the State of Florida. 21 That is the offense that the defendant is 22 charged with here today. 23 Now, what we're going to be doing is trying 24 to pick a jury of about seven people -- it will 25 be seven people -- to sit and be fair and KANABAY COURT REPORTERS 17 1 impartial jurors here today, and we're going to 2 be asking you questions that are going to be 3 designed to determine whether or not you can be 4 fair or impartial. 5 I can guarantee you that nothing we ask you 6 is going to be designed to embarrass you or in 7 any way make you feel uncomfortable. The sole 8 purpose of the questions is to determine whether 9 or not on today's trial you can be fair and 10 impartial. So we're asking you some questions 11 that relate particularly to that. 12 Consider for a minute if this were a DUI 13 case and some of you had either been charged 14 with DUI or someone in your family had been a 15 victim of a DUI driver, then this might be a 16 case that you might not be a good juror to serve 17 on because you might have some particular 18 feeling about DUI that might in some way impact 19 upon your ability to be fair and impartial. 20 That's kind of where we're headed here. 21 When we get to asking you questions, if you 22 at any point in time feel uncomfortable about 23 the questions that you are being asked and 24 uncomfortable about the answer that you would 25 have to give in front of the rest of what is KANABAY COURT REPORTERS 18 1 this venire, then you have my permission to ask 2 to approach. We would allow you to do that. 3 You can come up here to the bench. You can 4 stand here and answer the question in front of 5 myself, the attorneys and the court reporter, 6 and you won't have to reveal whatever it is that 7 you don't wish to reveal in front of entire 8 venire. So I want you to feel comfortable that 9 that is something that can happen. 10 Now, I anticipate that this case is going 11 to last two days. I heard a complaint already 12 about that. It was already well registered. I 13 it was believe Mr. Mensch who said "aw." I 14 might be wrong. I anticipate it is going to 15 last two days. I am going to ask you some 16 questions about that to determine whether or not 17 you might be a person who can sit here for a 18 couple of days and hear this case. 19 I'll also tell you that I anticipate there 20 are going to be news media personnel in the 21 courtroom at some point also today and tomorrow 22 as it relates to this trial and while the trial 23 is going on. So, if during the questioning 24 itself any of those things end up becoming a 25 problem for you or something that's going to KANABAY COURT REPORTERS 19 1 concern you, and I will ask you about your 2 ability to stay for two days in just a second 3 here, when the attorneys are asking you 4 questions or when I am, please bring that up. 5 As far as I am concerned, if we sort of 6 have the gall and audacity to ask you to 7 come down here and take away from what are 8 your busy lives, in some cases you're 9 probably missing work and there's no way in 10 the world we're going to pay you anywhere 11 near what you would make while at work 12 today, and, of course, sometimes you're 13 going to be missing your children and other 14 things, then it seems to me that we can do 15 the best we possibly can to be as nice to 16 you as we possibly can. So it's my intent 17 to do that. 18 So you need to -- or you should, rather, 19 rest assured that if at any point in time you 20 need to use the facilities -- I call it take a 21 potty break because I've got little ones, so I 22 always use the word "potty." But if you need to 23 use the facilities at any point in time, just 24 let me know. Better yet, let the bailiff know. 25 If you're sitting as a juror in this case KANABAY COURT REPORTERS 20 1 you'll be sitting over here in the jury box. 2 Sitting right next to you will be a bailiff. 3 Turn to the bailiff and let them know that you 4 got to go, and the bailiff will let me know, and 5 I can guarantee you I will take a break as soon 6 as practical so that we can make sure that that 7 happens. 8 I think the worst possible feeling there is 9 in the world is sitting trying to hold it and 10 you don't want anybody to know that you're 11 trying to hold it at the same time you've got to 12 focus on and concentrate on the evidence in this 13 case, and I don't really want that to be 14 something that you all suffer from. So again, 15 if you have that issue, then do that. 16 Also, if you need any other -- some other 17 type of breaks, I've had cases where I've had 18 folks who were diabetic and a couple of those 19 people needed to take a break so they can munch 20 on something especially going late in the 21 everything, again I'm prepared to take a break 22 so that that can happen for you. 23 If you need to stretch, some people have 24 back problems, anything like that, I don't have 25 a problem with that. You can stand where you KANABAY COURT REPORTERS 21 1 are and stretch and it will not offend me and it 2 will be something you're able to do. 3 The other thing or a couple other things, I 4 tend to allow jurors to take into the jury box 5 with them a covered drink. So if you're served 6 or, rather, able to serve or to serve as a juror 7 in this case, you can take into the jury box 8 with you a drink that's covered. So either have 9 a lid over it or a cap over it so that you don't 10 spill it. That's my concern. 11 Now, the only thing I would ask you as 12 relates particularly to the drink itself is that 13 when you get towards the end there, you don't 14 slurp it. We're trying to avoid having a 15 problem interrupting the witness as they're 16 testifying, so please don't slurp the drink. 17 I also tend to allow jurors, because I 18 understand some folks enjoy chewing gum -- 19 nobody else in the courtroom will get to chew 20 gum, but you can. And if you wish to chew gum, 21 that's fine with me. Again, we try to be nice 22 to you and we're going to do the best we can to 23 accommodate you. 24 The only thing -- I have two requests as it 25 relates to the gum. Don't chew the gum with KANABAY COURT REPORTERS 22 1 your mouth open, and please don't pop or smack 2 the gum. Every now and again we get somebody 3 that tries to pop or snap the gum, and that 4 is -- can be interrupting, so I would ask that 5 you not do that. 6 Anything else that I can possibly to do to 7 make this a more comfortable experience so you 8 can focus on the evidence in this case, listen 9 to the testimony of the witnesses and come to a 10 what is a fair and impartial verdict here today, 11 that's what I intend to do. I'm trying to place 12 you at ease. If I haven't done that yet, that's 13 what I'm trying to do. 14 Now, this, I believe, is going to take a 15 day and a half, two days to try. Is there 16 anyone here who cannot -- now, let me tell you 17 also I anticipate we'll break today between 18 five-thirty and seven, I mean, it may be closer 19 to maybe six and seven. Is there anyone here 20 who cannot stay, first of all, until six or 21 seven today, and then, secondly, cannot 22 participate in this trial for up to two days? 23 Please raise your hand. All right. I have, 24 sir, is it Ondich? 25 PROSPECTIVE JUROR ONDICH: Yes, sir. KANABAY COURT REPORTERS 23 1 THE COURT: All right. Can you tell me 2 why it is that you might not be able to 3 participate for two days? 4 PROSPECTIVE JUROR ONDICH: I'm a staff 5 radiological technologist. I travel, and 6 the hospital I have to attend to tomorrow 7 depends on me to be there. If not, then 8 they are not going to have enough people to 9 do x-rays in that facility. 10 THE COURT: Okay. Where do you have to 11 go tomorrow? 12 PROSPECTIVE JUROR ONDICH: Northside 13 Hospital? 14 THE COURT: That's here in Pinellas 15 County? 16 PROSPECTIVE JUROR ONDICH: Yes. 17 THE COURT: Here's my question, sir: 18 Is there anyone -- let me ask it this way. 19 Now, Mr. Ondich, God forbid decided to go 20 jogging today and slipped and fell and broke 21 his ankle. He can't go to work tomorrow. 22 Who does Northside Hospital call tomorrow 23 then to fill in for you? 24 PROSPECTIVE JUROR ONDICH: They will 25 have to try and find another agency and try KANABAY COURT REPORTERS 24 1 and bring in another technologist. 2 THE COURT: Okay. But the point of it 3 is that there is someone who could cover for 4 you if you could not make it to work 5 tomorrow; is that accurate? 6 PROSPECTIVE JUROR ONDICH: It's 7 possible, yes. 8 THE COURT: If we were to allow you to 9 use a telephone, and we would allow you to 10 use that phone pretty much at your 11 convenience whenever it would be necessary 12 for you to use that phone, could you arrange 13 for someone to maybe cover for you tomorrow? 14 PROSPECTIVE JUROR ONDICH: I can call 15 my supervisor and see if she will have 16 anyone available. 17 THE COURT: Okay. Thank you, sir. 18 Anybody else? All right. Let the record 19 reflect that no hands went up. 20 Okay. I'm going to go through this list, 21 and I'm going to read your names and I'm going 22 to try and make sure that I read them correctly. 23 The reason I do that is to avoid us pronouncing 24 your name several times wrongly. My last name 25 is Andrews, as you can see from my plaque and KANABAY COURT REPORTERS 25 1 from me having introduced myself. 2 And one of the things that seems to annoy 3 me more than anything, folks often leave off of 4 my last name that "s." They always call me 5 Michael Andrew. Nothing seems to annoy me more 6 than being called Michael Andrew. So your name 7 being mispronounced may annoy you. 8 I'm going to try to avoid that. I'm going 9 to go through and see if we can pronounce 10 everyone's name correctly, starting over here 11 with Mr. Benjamin, sir? 12 PROSPECTIVE JUROR BENJAMIN: That's 13 correct. 14 THE COURT: Okay. Is it Scurlock? 15 PROSPECTIVE JUROR SCURLOCK: Yes. 16 THE COURT: Is it Marx? 17 PROSPECTIVE JUROR MARX: Yes. 18 THE COURT: All right. Mr. Lovett? 19 PROSEPCTIVE JUROR LOVETT: Yes. 20 THE COURT: And Miss Matthews? 21 PROSPECTIVE JUROR MATTHEWS: Yes. 22 THE COURT: Miss Ellis? 23 PROSPECTIVE JUROR ELLIS: Yes, sir. 24 THE COURT: Miss, is the "S" silent? 25 PROSPECTIVE JUROR ELLIS: No. KANABAY COURT REPORTERS 26 1 THE COURT: I'm talking to Miss -- I'm 2 sorry. Not the "S" but the "T". Is the "T" 3 silent? 4 PROSPECTIVE JUROR TSIKOS: Tsikos. 5 THE COURT: It is Tsikos? 6 PROSPECTIVE JUROR TSIKOS: Tsikos. 7 THE COURT: So the "S" is silent? 8 PROSPECTIVE JUROR TSIKOS: Yes, sir. 9 THE COURT: Okay. Tsikos. 10 Is it Janusik or Janusik? 11 PROSPECTIVE JUROR JANUSIK: Janusik. 12 THE COURT: Janusik. Okay. Is it 13 Casella? 14 PROSPECTIVE JUROR CASELLA: Yes, it is. 15 THE COURT: Ezell? 16 PROSPECTIVE JUROR EZELL: Yes. 17 THE COURT: Is it Swonger? 18 PROSPECTIVE JUROR SWONGER: Yes, sir. 19 THE COURT: Mr. Ondich? 20 PROSPECTIVE JUROR ONDICH: Yes, sir. 21 THE COURT: Is it Bartocci? 22 PROSPECTIVE JUROR BARTOCCI: Bartocci, 23 right. 24 THE COURT: Miss Carter? 25 PROSPECTIVE JUROR CARTER: Yes. KANABAY COURT REPORTERS 27 1 THE COURT: Mr. Backus? 2 PROSPECTIVE JUROR BACKUS: (Indicates.) 3 THE COURT: Mr. Wilson? 4 PROSPECTIVE JUROR WILSON: (Indicates.) 5 THE COURT: All right. Mr. Langston? 6 PROSPECTIVE JUROR LANGSTON: Yes, sir. 7 THE COURT: Mr. Wright? 8 PROSPECTIVE JUROR WRIGHT: Yes. 9 THE COURT: Mr. Herdman? 10 PROSPECTIVE JUROR HERDMAN: Yes. 11 THE COURT: Miss Mobley? 12 PROSPECTIVE JUROR MOBLEY: (Indicates.) 13 THE COURT: Miss Drake? 14 PROSPECTIVE JUROR DAKE: Dake, no "R." 15 THE COURT: I'm sorry. There is no "R" 16 there. You're right. You would know. 17 Sorry, Miss Dake. 18 And Mr. Osborn? 19 PROSPECTIVE JUROR OSBORN: (Indicates.) 20 THE COURT: Mr. Garrison? 21 PROSPECTIVE JUROR GARRISON: (Indicates.) 22 THE COURT: Mr. Shea? 23 PROSPECTIVE JUROR SHEA: (Indicates.) 24 THE COURT: Is it Rothschild? 25 PROSPECTIVE JUROR ROTHSCHILD: The "S" KANABAY COURT REPORTERS 28 1 is silent. 2 THE COURT: The "S" is silent, so 3 Rothschild? 4 PROSPECTIVE JUROR ROTHSCHILD: Right. 5 THE COURT: Miss Lovely? 6 PROSPECTIVE JUROR LOVELY: Yes. 7 THE COURT: Is it Lepley? 8 PROSPECTIVE JUROR LEPLEY: Yes. 9 THE COURT: And is it -- is there a 10 hyphen between Dalla and Rosa? 11 PROSPECTIVE JUROR DALLA ROSA: No. 12 It's one word -- one name, two words. 13 THE COURT: Okay. So It's Miss Dalla 14 Rosa? 15 PROSPECTIVE JUROR DALLA ROSA: Dalla 16 Rosa. 17 THE COURT: Okay. Mr. Wickett? 18 PROSPECTIVE JUROR WICKETT: Yes. 19 THE COURT: And Mr. Mensch? 20 PROSPECTIVE JUROR MENSCH: Yes. 21 THE COURT: Okay. Now, real quickly, 22 by a show of hands, if you left your common 23 sense at the door when you walked in the 24 courtroom, please raise your hand. 25 Let the record reflect that nobody raised KANABAY COURT REPORTERS 29 1 their hand. Every now and again someone raises 2 their hand. Actually on Monday three people 3 raised their hand. The reason I asked you that 4 is because you are not required to leave your 5 common sense at the door. It is not magic and 6 there is nothing mystical about what's going to 7 happen here today. We ask you to bring your 8 common sense into this courtroom. 9 For the X-number of years that each of you 10 have been living or has been living, you've 11 developed some things that help you determine 12 whether or not you believe a person is telling 13 the truth or telling a lie, whether or not a 14 story is believable or not believable. We don't 15 ask you to abandon that. In fact, we ask -- 16 insist that you bring that in the courtroom with 17 you here today. 18 Now, all the evidence in this case, all of 19 the evidence, is going to come from one place 20 and one place only. That is this witness stand. 21 What I say will not be evidence. What the 22 lawyers say will not be evidence. The evidence 23 will come from the testimony of the witnesses 24 and some of the documents, if any, that are 25 introduced into this trial here today. KANABAY COURT REPORTERS 30 1 When they are done testifying, then I will 2 read to you at the end of the trial what is the 3 law in this case. Now, what we ask you to do is 4 to look at the evidence and the law and come up 5 with what is a fair and impartial verdict here 6 today. That's what we're going to ask you to 7 do, and you using your common sense to do that. 8 Is there anyone here who cannot do that? 9 Please raise your hand if you can't. Okay. 10 Thank you. Let me introduce to you all the 11 people who are in the courtroom here today. 12 Sitting over here in the jury box is a student, 13 if you will. She is sort of observing and 14 learning how this is done. So that's -- how do 15 you say your last name? 16 UNIDENTIFIED SPEAKER: Delcolisis 17 (phonetic.) 18 THE COURT: I can't say it, so I always 19 ask her to say her last name. Next to 20 Miss Thea is the bailiff. The bailiffs are 21 the persons you will see that have on black 22 jackets, black tie, and a white shirt. 23 They're going to be in charge of our safety 24 here today. They're going to protect us. 25 They're going to take you, if you serve as a KANABAY COURT REPORTERS 31 1 juror, from place to place throughout the 2 building where it is that you might need to 3 go. 4 If some of you are smokers, they will take 5 you to a particular place in the building where 6 you will be allowed -- well, outside really is 7 only where you will be allowed to smoke. And 8 for all intents and purposes they're going to 9 make sure that you are comfortable and address 10 your needs. Those are the ones you would talk 11 to again if you have some issues that you need 12 to address. 13 Sitting to my right in front of me here is 14 the assistant state attorney who is going to be 15 prosecuting the State's case. Ma'am, stand and 16 introduce yourself and read from your witness 17 list anyone you anticipate you may call. 18 MS. WARDELL: Yes, Judge. Good 19 morning. Lydia Wardell with the State 20 Attorney's Office. 21 Officer Howard Crosby, 22 Officer Michael Bruno and Pinellas County Lab 23 technician Stacy Mace. Judge, do you want me to 24 read all the possible witnesses or just the ones 25 I intend to call? KANABAY COURT REPORTERS 32 1 THE COURT: If you possibly may call 2 some others, please also read those. 3 MS. WARDELL: Okay. There is 4 Brian Raftery, Barry Gaston, Ray Emmons, 5 James Patterson, Frank Oliver and 6 Deneen Phillips. 7 THE COURT: Thank you very much. 8 Sitting in front of me here is our court 9 reporter, and she is typing any and 10 everything that we say down, which, of 11 course, preposes that we actually say 12 something audible. 13 We have sort of a habit I think, or folks 14 often, at least in this county I've come to 15 realize, answer questions with when they want to 16 answer a question yes, they say uh-huh, and if 17 they want to say no, they say huh-uh. Well, 18 there is nothing on the machine that takes down 19 the uh-huh and the huh-uh. So we're going to 20 need to say yes and no. 21 We also sometimes also answer our questions 22 by shaking our head up and down, yes; shaking it 23 left and right for no. Again, nothing on the 24 machine that's going take down the shakes of 25 your head. So we would ask you to be -- if you KANABAY COURT REPORTERS 33 1 answer your question, that you answer them out 2 loud and say yes or no to -- or whatever the 3 answer may be to the questions that are asked. 4 Sitting in front of me here is 5 Mr. DeVlaming and his client. Mr. DeVlaming, 6 would you please stand and introduce yourself 7 and your client and any witness you may call 8 today. 9 MR. DEVLAMING: Yes, your Honor. My 10 name is Denis DeVlaming. I'm a lawyer in 11 Clearwater. And Miss Wardell read the names 12 of all witnesses in this case including the 13 ones that I intend to call, so I have 14 nothing in addition at this time. And this 15 is Jesse Prince. He is my client. He is 16 also of Pinellas County. 17 THE COURT: Thank you, sir. 18 Sitting over to my left is the court clerk. 19 The court clerk is for all intents and purposes 20 the Court's secretary. She takes all the 21 minutes in this case, will collect all of the 22 evidence and will make sure that I do all the 23 things that are supposed to be done in this 24 case. For instance, you all were sworn when you 25 came. She will take care of that. She will KANABAY COURT REPORTERS 34 1 remind me to swear you in if I fail to do that, 2 and just keep the trial running orderly and 3 efficiently. 4 Now, having done that, introduced all these 5 folks, is there anyone here who recognizes any 6 of the people in the courtroom or any of the 7 names that were called? Please raise your hand 8 if you do. 9 Okay I have Mr. Wright raising his hand. 10 Sir, who do you recognize? 11 PROSPECTIVE JUROR WRIGHT: Mr. Oliver 12 and the Clerk. 13 THE COURT: Okay. You recognize the 14 Clerk and you recognize Mr. Oliver? 15 PROSPECTIVE JUROR WRIGHT: Uh-huh. 16 THE COURT: Okay. Anything about the 17 fact you recognize Mr. Oliver and recognize 18 the Clerk here today going affect your 19 ability to be fair and impartial here today? 20 PROSPECTIVE JUROR WRIGHT: No. 21 THE COURT: Okay. Thank you. Anyone 22 else? Anybody here recognize or heard 23 anything in particular about this case from 24 the information as I read it. Okay. No 25 hands. KANABAY COURT REPORTERS 35 1 Let me go into greater detail. This case 2 was in the paper two days -- well, I think it 3 was Saturday and today. It was in the 4 St. Petersburg Times Saturday and it made its 5 way into the Tampa Tribune today. There are 6 some allegations that this case involves 7 members, a former member -- arguably a former 8 member of the Church of Scientology and the 9 Church of Scientology, arguably, itself. I'm 10 not telling you that it does or doesn't, but 11 that's what the paper would seem to suggest. 12 Did anyone read those articles? Okay. 13 Starting down here with Mr. Marx. Did you -- 14 you read the article? 15 PROSPECTIVE JUROR MARX: I -- 16 THE COURT: You did read the article? 17 PROSPECTIVE JUROR MARX: (Indicates.) 18 THE COURT: Other than Mr. Marx, 19 anybody else? Please raise your hand if you 20 read that article or those articles. 21 Mr. Marx, I'm going to ask you to please 22 step to the podium, sir, or, rather, to step 23 to the bench. 24 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 25 MR. DEVLAMING: Judge, do you need a KANABAY COURT REPORTERS 36 1 waiver from my client? He doesn't need to 2 be here, but if you want him -- 3 THE COURT: I do need a waiver. 4 MR. DEVLAMING: Okay. Mr. Prince? 5 (THE DEFENDANT APPROACHES THE BENCH) 6 MR. DEVLAMING: Mr. Prince, you have a 7 right to be here at the bench conference as 8 well as other bench conferences or you can 9 waive that right and be represented by your 10 lawyer. I recommend that, but it's your 11 decision to make. What do you want to do? 12 Do you want to be at the bench conferences, 13 or do you want me to handle it for you? 14 THE DEFENDANT: I'm perfectly -- I 15 trust you to handle it competently. 16 THE COURT: Thank you, Mr. Prince. 17 (THE DEFENDANT RETURNED TO THE DEFENSE TABLE) 18 THE COURT: Sir can you tell us what it 19 is you read in the article? 20 PROSPECTIVE JUROR MARX: I said -- yes, 21 your Honor, since you mentioned it. 22 THE COURT: Okay. And we gave the 23 names, but the first time the name didn't 24 connect with you? 25 PROSPECTIVE JUROR MARX: No. KANABAY COURT REPORTERS 37 1 THE COURT: Is there anything in 2 particular about that article that you think 3 since has in any way swayed you or made you 4 feel that you might not be able to be fair 5 here today? 6 PROSPECTIVE JUROR MARX: The article it 7 looks to me like it presented, like, one 8 side of the story and not the other side, so 9 -- 10 THE COURT: Do you think that the fact 11 that, in your mind, the article presented 12 only one side of the story is going to 13 affect your ability to sit and listen to 14 both sides of the story, if both sides are 15 offered, and come up with a fair and 16 impartial verdict here today? 17 PROSPECTIVE JUROR MARX: Yes. 18 THE COURT: Why do you say that? 19 PROSPECTIVE JUROR MARX: Well, I'd 20 like -- I don't like extreme religions, 21 and -- 22 THE COURT: You're saying at this time 23 that the article -- you say you don't like 24 extreme religions. Let me ask you this: By 25 extreme -- did you already have an opinion KANABAY COURT REPORTERS 38 1 about the Church of Scientology before you 2 read the article? 3 PROSPECTIVE JUROR MARX: I read the 4 articles on the Church of Scientology. 5 THE COURT: Did you already -- 6 PROSPECTIVE JUROR MARX: I've read many 7 articles because there's all kinds of 8 scandals in Clearwater. 9 THE COURT: Right. And did you already 10 have some particular feelings, negative 11 feelings, about the Church of Scientology 12 before you read the article today? 13 PROSPECTIVE JUROR MARX: Negative, I 14 can't tell you. 15 THE COURT: Here's my problem. You say 16 that you don't like extreme religions, and 17 that's causing me to assume that you know 18 something in particular about the Church of 19 Scientology to make you think it is an 20 extreme religion as opposed to -- 21 PROSPECTIVE JUROR MARX: I believe 22 people can practice whatever they want. It 23 doesn't affect me, but it is always in the 24 paper. I don't know if they do that because 25 of they like publicity or -- they're always, KANABAY COURT REPORTERS 39 1 like, front page. 2 THE COURT: Okay. 3 PROSPECTIVE JUROR MARX: So -- 4 THE COURT: All right. Did you have 5 some questions? 6 MS. WARDELL: Do you recall if you read 7 the St. Pete Times article Saturday or the 8 Tampa Tribune's article today? 9 PROSPECTIVE JUROR MARX: Saturday's 10 article. 11 MS. WARDELL: You read Saturday's 12 article? 13 PROSPECTIVE JUROR MARX: Uh-huh. 14 MS. WARDELL: Which side did I think -- 15 you said you believe only one side was 16 given. What side do you believe was 17 presented in that article? 18 PROSPECTIVE JUROR MARX: I can't 19 remember. I can't recall, but I remember 20 having, let's say, a negative feeling about 21 the article. I can't remember exactly what 22 side. I would have to reread it, but I do 23 remember it stayed with me. 24 MS. WARDELL: You have negative 25 feelings about the prosecution of the KANABAY COURT REPORTERS 40 1 individual because Scientology was involved? 2 PROSPECTIVE JUROR MARX: Possibly. 3 MS. WARDELL: Because the techniques 4 and tactics that they used to -- like one 5 against the other? 6 PROSPECTIVE JUROR MARX: I guess. 7 MS. WARDELL: So the article, that led 8 you to believe that improper tactics were 9 used to lead to the prosecution or to the 10 arrest? 11 PROSPECTIVE JUROR MARX: Yes. I'm not 12 sure, but I know -- I mean, whenever it's 13 involving, like, the Church of 14 Scientology -- I don't know or read that 15 much about them besides they are in the 16 paper all the time. So they are in the 17 paper all the time. They must, like, have 18 some reason to be in the paper all the time. 19 I mean, I don't see, like, some other local 20 churches being in the paper all the time. 21 MS. WARDELL: Based upon what you read, 22 do you think you could be fair and impartial 23 in this case? 24 PROSPECTIVE JUROR MARX: No. 25 THE COURT: Do you understand the KANABAY COURT REPORTERS 41 1 Church of Scientology is not a party in this 2 case? 3 PROSPECTIVE JUROR MARX: Oh, I 4 understand that. 5 THE COURT: Okay. Having said that, do 6 you think if the Church of Scientology 7 becomes relevant to the proceedings that you 8 would hold it against the Church of 9 Scientology and possibly against either the 10 prosecution or the defense or whichever side 11 arguably represents or is fostering what 12 would be their interest? 13 PROSPECTIVE JUROR MARX: Well, I have 14 this doubt. This other problem with 15 marijuana is that I had a couple of friends 16 over the years that kind of are in and out 17 of this world by just smoking too much. I 18 mean, like, being they would tell me they 19 were on medication and -- 20 THE COURT: Okay. Here's the thing. 21 I'm just trying to focus on the article. 22 PROSPECTIVE JUROR MARX: Okay. 23 THE COURT: We can talk about your 24 friends at another point. What I'm trying 25 to figure out, what I'm trying to get you to KANABAY COURT REPORTERS 42 1 tell me is are you going to hold it against 2 a particular side, either the prosecution or 3 the defense, if you come to believe that one 4 or the other side might be assisting the 5 Church of Scientology in whatever you don't 6 like about them today? 7 PROSPECTIVE JUROR MARX: I can't -- I 8 can't answer. 9 THE COURT: All right. Mr. DeVlaming, 10 did you have any questions of this 11 gentleman? 12 MR. DEVLAMING: I guess what we're 13 trying to find out, Mr. Marx, is based upon 14 what you've read and based upon what you 15 know and what you've just told us, do you 16 feel that you can follow the law that the 17 judge gives you at the end of the case and 18 take the facts that you hear from the 19 courtroom and arrive at a fair verdict, or 20 do you think you come in with some sort of 21 bias or prejudice? 22 PROSPECTIVE JUROR MARX: I think I am 23 more likely coming with a bias or prejudice. 24 THE COURT: Thank you. 25 MR. DEVLAMING: Okay. KANABAY COURT REPORTERS 43 1 (PROSPECTIVE JUROR LEAVES THE BENCH) 2 THE COURT: Stay here. I'm not sure I 3 understand where we're headed here. I 4 believe he is cause. I don't know that we 5 need to ask him any more questions. Do you 6 agree he is cause? 7 MS. WARDELL: I don't have a problem 8 with cause. 9 MR. DEVLAMING: Let's let him go. 10 THE COURT: All right. Thank you. 11 MR. DEVLAMING: Judge, though, I'm 12 always a little leary about a stampede, and 13 sometimes when a juror leaves -- 14 THE COURT: He's staying. I was just 15 saying don't ask him any questions. 16 MR. DEVLAMING: That's fine. 17 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 18 THE COURT: I understand right now we 19 need to take about a ten-minute recess. 20 We'll take that recess at this moment, and 21 then in ten minutes we'll come back and I'll 22 finish my questioning and turn it over to 23 the attorneys. Okay? Let's take ten. 24 (A RECESS WAS HAD) 25 THE COURT: All right. KANABAY COURT REPORTERS 44 1 MR. DEVLAMING: We don't need the court 2 reporter. 3 (A DISCUSSION WAS HAD OFF THE RECORD) 4 THE COURT: Okay. Before we took the 5 last break I forgot to tell you a couple 6 things. First of all, from this point 7 forward, especially if you're picked, but 8 until the proceeding, this selection 9 process, is over, you cannot discuss this 10 case amongst yourselves, nor can you read 11 any articles relating particularly to this 12 case. Nothing whatsoever. 13 Now, did anyone actually run out and grab 14 the paper in the last ten minutes? Raise your 15 hand if you did. It's okay to tell the truth. 16 You can't get in any trouble. Nobody's going to 17 jail. 18 PROSPECTIVE JUROR ROTHSCHILD: I've got 19 a paper. 20 THE COURT: Yeah. But the question is 21 did you read the paper? 22 PROSPECTIVE JUROR ROTHSCHILD: No. 23 THE COURT: So grabbing the paper is 24 fine. Please don't read any articles 25 related to this. I also forgot to do one KANABAY COURT REPORTERS 45 1 thing. Did you already invoke the rule 2 here? 3 MS. WARDELL: No, sir. 4 THE COURT: All right the rule of writ 5 and sequestration is at this time invoked. 6 Anyone who is in this courtroom and may be a 7 witness in these proceedings is ordered to 8 not discuss this matter and to leave the 9 courtroom at this time. 10 I have a couple of more questions for you 11 and then I'll turn the questioning over. 12 Everybody agree that if you don't like a 13 law you must still nonetheless follow the law? 14 Do we all agree with? 15 THE PROSPECTIVE JURORS: Yes. 16 THE COURT: Let me ask that again 17 because I'm asking for an audible answer. 18 We all agree that if you don't like the law 19 you have to follow that law? 20 THE PROSPECTIVE JURORS: Yes. 21 THE COURT: All right. From a show of 22 hands, if you just love to pay your taxes, 23 raise your hand. All right. Let the record 24 reflect that nobody raised their hands. I'm 25 happy to hear that. Now, but nonetheless, KANABAY COURT REPORTERS 46 1 we do pay those taxes because it is the law 2 and we have to support our republic. Does 3 everybody agree with that? 4 THE PROSPECTIVE JURORS: Yes. 5 THE COURT: Would you also agree that 6 if you want to change the law, the place to 7 change that law is in Tallahassee and not in 8 courtroom here today? 9 THE PROSPECTIVE JURORS: Yes. 10 THE COURT: Is that a fair assessment? 11 THE PROSPECTIVE JURORS: Yes. 12 THE COURT: So no matter how silly you 13 think that law is, you all can, nonetheless, 14 listen to the evidence, listen to the law 15 that I read to you and follow that law in 16 deciding your verdict? Can you do that? 17 THE PROSPECTIVE JURORS: Yes. 18 THE COURT: I'm going to read an 19 instruction to you. This is called the 20 reasonable doubt instruction. I'm going to 21 read it to you now and read to you again at 22 the end of the trial. 23 The State has the responsibility of proving 24 the defendant's guilt beyond and to the 25 exclusion of every reasonable doubt. You KANABAY COURT REPORTERS 47 1 don't -- the defendant in this case doesn't have 2 to prove or disprove anything. The definition 3 of reasonable doubt is as follows: 4 Whenever the words "reasonable doubt" are 5 used you should consider the following: 6 A reasonable is not a mere possible 7 doubt -- you all can hear me okay without the 8 microphone on? 9 THE PROSPECTIVE JURORS: Yes. 10 THE COURT: All right -- is not a, mere 11 possible doubt, a speculative, imaginary or 12 forced doubt. Such a doubt must not 13 influence you to return a verdict of not 14 guilty if you have an abiding conviction of 15 guilt. On the other hand, if, after 16 carefully considering, comparing and 17 weighing all the evidence, there is not an 18 abiding conviction of guilt, or, if, having 19 a conviction, it is one which is not stable 20 but one which wavers and vacillates, then 21 the charge is not proved beyond all 22 reasonable doubt and you must find the 23 defendant not guilty because the doubt is 24 reasonable. 25 It is to the evidence introduced in this KANABAY COURT REPORTERS 48 1 trial, and to it alone, that you are to look for 2 that proof. 3 A reasonable doubt as to the guilt of a 4 defendant may arise from the evidence, conflict 5 in the evidence or the lack of evidence. 6 If you have a reasonable doubt, you should 7 find the defendant not guilty. If you have no 8 reasonable doubt, you should find the defendant 9 guilty. 10 That is the definition of reasonable doubt. 11 That is the standard by which the State has to 12 prove this case today. And I'm going read it to 13 you again at the end of the trial and ask you 14 pay attention to it and to apply it. 15 But here's a question that I have that sort 16 of stems from that. Has anybody here ever seen 17 Perry Mason? Raise your hand. How about 18 Matlock? L.A. Law? Any of that? Ally McBeal? 19 Any of those other shows? The point I'm ready 20 to get at here is that you hear a whole lot of 21 stuff -- if you have a phone or a beeper, please 22 turn those off or place them on vibrate. 23 You hear a lot of stuff on those shows 24 about the law, and we unfortunately actually had 25 a juror once in the jury room say, Well, on KANABAY COURT REPORTERS 49 1 L.A. Law I saw this, or on The Verdict I saw 2 that. Well, you can't consider things that you 3 saw on L.A. Law or any of those other shows. 4 None of -- the truth is those things are really 5 not factual. 6 On one of those shows I actually saw an 7 attorney throw an appellate brief at an 8 appellate court judge. That would never happen. 9 She would lose her bar card. She would be face 10 down on the pavement. The bailiff would have 11 her in custody and she would be dragged out of 12 the courtroom. The point is that wouldn't 13 happen. So you can't rely on any of that stuff. 14 Mr. Matlock used to talk about what was the 15 shadow of a doubt. There's no such standard. 16 The standard is reasonable doubt. The thing 17 that I'm asking you all to do is to not pay any 18 attention to what you may have seen on those 19 shows and focus on the facts of this case, the 20 evidence in this case, and determine the guilt 21 or innocence of this defendant based solely on 22 this. 23 Is there anyone here who thinks that they 24 cannot do that? Let the record reflect that no 25 one has raised his or her hand at this time. KANABAY COURT REPORTERS 50 1 All right. Sympathy is a common emotion, 2 and it's one that we all have. You would not be 3 human if you did not have feelings of sympathy. 4 But sympathy is not legally a reasonable doubt. 5 You can't decide your verdict in this case 6 because you're angry at anyone or because you 7 feel sorry for anyone. 8 Is there anybody here who feels that they 9 could not set aside whatever sympathies you may 10 have for or against the State or the Defense in 11 this case and base your verdict solely on the 12 evidence? Is there anyone here who cannot do 13 that? Raise your hand if you can't. Let the 14 record reflect that again nobody has raised his 15 or her hand. 16 Now, it is often the occasion -- well, it 17 has happened in the past. Often maybe too 18 strong, but it has happened in the past that 19 from time to time people have not been able to 20 reach a verdict. They can't sit in judgment of 21 another person. 22 Let me suggest to you that you are not 23 today sitting in judgment of a person. You are 24 sitting in judgment of the facts of this case. 25 You are going to be listening to the facts and KANABAY COURT REPORTERS 51 1 determining whether or not from the facts the 2 State has proven the defendant's guilt beyond 3 and to the exclusion of every reasonable doubt. 4 But assume for the moment you believe you 5 are sitting in judgment of a person. Is there 6 anyone here who for whatever reason, religious, 7 social, moral, whatever reason, you don't think 8 that you, as you know yourself to, be can sit in 9 judgment of a person and render a verdict with 10 the understanding that you're going to be 11 finding a person either guilty or not guilty of 12 the charge? 13 Mind you, if the defendant ultimately is 14 found guilty here today, whatever sentence he 15 receives will be up to me, not you. So you 16 would be sitting in judgment solely of the facts 17 of this case. Is there anyone here who can't do 18 that, you feel that that's just something that 19 you should not be called upon to do? Raise your 20 hand if you think that reflect -- relates to 21 you. Again no hands went up. 22 Okay. As I look through my list of 23 questions, I am done, and I'm getting ready 24 to turn the questioning over to the 25 assistant state attorney. I would ask that KANABAY COURT REPORTERS 52 1 you pay careful attention to her also. 2 Thank you. You may proceed. 3 MS. WARDELL: Thank you, Judge. Good 4 morning. 5 THE PROSPECTIVE JURORS: Good morning. 6 (A BRIEF PAUSE) 7 MS. WARDELL: Good morning. 8 THE PROSPECTIVE JURORS: Good morning. 9 MS. WARDELL: I understand that each of 10 you all are here because of a summons, if 11 you will, that you received in your mail 12 box, and I want to talk to you a minute 13 about the morning or the evening that you 14 got that summons and realized today is the 15 day that you have to come down to this 16 complex and participate in jury selection. 17 Miss Scurlock, tell me about that. When 18 you got it, kind of what was going on in your 19 mind? 20 PROSPECTIVE JUROR SCURLOCK: Actually I 21 knew. I had came last month for a jury 22 selection, but I just -- I was graduating 23 from college and I had my midterms due, so I 24 couldn't serve last time so I knew I had to 25 come. KANABAY COURT REPORTERS 53 1 MS. WARDELL: Okay. And because of 2 knowing ahead of time, did that give you the 3 luxury, if you will, of making arrangements 4 for today and possibly tomorrow if you're 5 available? 6 PROSPECTIVE JUROR SCURLOCK: Right. 7 MS. WARDELL: Well, that's good for 8 you. Is there anybody else that had that 9 convenience that they knew ahead of time 10 prior to going out to their mail box that 11 today was the day they were going to have to 12 come in? 13 Miss Scurlock, I see you work with R'Club. 14 Were you able to get -- that involves children, 15 right? 16 PROSPECTIVE JUROR SCURLOCK: Right. 17 MS. WARDELL: Were you able to get your 18 duties and responsibilities covered for 19 today? 20 PROSPECTIVE JUROR SCURLOCK: Yes. 21 MS. WARDELL: Okay. Good. 22 Miss Matthews, same question to you. I see 23 that you're a teacher. 24 PROSPECTIVE JUROR MATTHEWS: Yes. 25 MS. WARDELL: When you got your summons KANABAY COURT REPORTERS 54 1 did you -- were you immediately able go to 2 your supervisor or the principal and make 3 arrangements for today? 4 PROSPECTIVE JUROR MATTHEWS: Yes, I 5 was. 6 MS. WARDELL: If you're selected to be 7 seated on this jury, are your thoughts and 8 attentions going to be distracted to the 9 children you've left behind and whether or 10 not the substitute is going to adaquately 11 cover? 12 PROSPECTIVE JUROR MATTHEWS: I would 13 say no. 14 MS. WARDELL: Okay. And, if selected, 15 can you give your full focus and attention 16 on the evidence and the facts as presented 17 by both the State and the Defense against 18 Mr. Prince? 19 PROSPECTIVE JUROR MATTHEWS: Yes, 20 ma'am. 21 MS. WARDELL: And I know it's the end 22 of the year, and is school not quite out for 23 you all? 24 PROSPECTIVE JUROR MATTHEWS: June 9th 25 is the last day of school. KANABAY COURT REPORTERS 55 1 MS. WARDELL: Okay. All right. Good. 2 Miss Tsikos, same question to you. Tell me 3 about being here today and learning that today 4 was the day. Is there anything going on in your 5 background or work related that this presents a 6 problem for you? 7 PROSPECTIVE JUROR TSIKOS: No. I'm 8 free. And I've known for several weeks that 9 I would be here today, so I don't have a 10 problem. I am retired. 11 MS. WARDELL: Okay. A lot of times I 12 find especially here in Pinellas County that 13 some folks are responsible for other folks. 14 In other words, they have elderly 15 fathers-in-law or mothers to take care of 16 and they need to be with these -- these 17 individuals rely on them, whether it's small 18 children or elderly adults. 19 Is there anybody here who has that type of 20 responsibility that if they're selected they are 21 going to be wondering whether their elderly 22 patient it going to get their medicine and 23 things of that nature that needs to be done? Is 24 there anybody responsible for somebody else? 25 Okay. That's a no? All right. KANABAY COURT REPORTERS 56 1 Mr. Bar -- is it, I'm sorry, Bartocci? 2 PROSPECTIVE JUROR BARTOCCI: Bartocci. 3 MS. WARDELL: Is the mail going to get 4 delivered today without do you being there? 5 PROSPECTIVE JUROR BARTOCCI: It always 6 does. 7 MS. WARDELL: Same question to you. I 8 think it's, Mr. Wright, same thing. Is 9 somebody covering your route? 10 PROSPECTIVE JUROR WRIGHT: Yes. 11 MS. WARDELL: Was it a problem for you 12 to get your route covered? 13 PROSPECTIVE JUROR WRIGHT: No, no 14 problem at all. 15 MS. WARDELL: So if you're selected to 16 sit up here, are you going to wonder whether 17 those dogs are going to be attacking 18 somebody else and will your focus be 19 distracted? 20 PROSPECTIVE JUROR WRIGHT: No, I won't 21 be distracted. 22 MS. WARDELL: Because keep in mind the 23 whole point and the purpose behind this is 24 that we all, both sides, want six 25 individuals who are going to be fair and KANABAY COURT REPORTERS 57 1 impartial. Of course Miss Wardell on behalf 2 of the State wants six folks to vote that 3 the defendant is guilty beyond a reasonable 4 doubt, and Mr. DeVlaming on behalf of 5 Mr. Prince wants six individuals to say no 6 way, State, you didn't do your job. But we 7 have a common thread. We have a common goal 8 here, and that is that we select six of you, 9 who, no matter what your decision is, you 10 will treat this case openly and fairly and 11 listen to all the facts before you make your 12 decision. 13 Is there anybody for whatever reason 14 whatever distraction might be in your mind, be 15 it your job, be it your work, be it your family 16 responsibilities, that can't do that? 17 Mr. Rothschild? 18 PROSPECTIVE JUROR ROTHSCHILD: Yes, 19 ma'am. 20 MS. WARDELL: Anything going on in your 21 background as relates to work or home that 22 might distract your attention? 23 PROSPECTIVE JUROR ROTHSCHILD: Not 24 really. I just started a new job, but it 25 won't be distracting I don't think. KANABAY COURT REPORTERS 58 1 MS. WARDELL: Okay. Is this with the 2 medical equipment? Is that covered? 3 PROSPECTIVE JUROR ROTHSCHILD: It's 4 covered, yes. 5 MS. WARDELL: Okay. Miss Dake, I think 6 I wrote down that you have a manager-type 7 position. Is this a hardship for you to be 8 here today? I know that means you're 9 responsible for others. 10 PROSPECTIVE JUROR DAKE: No. I have 11 four interns. 12 MS. WARDELL: Okay. Good. Good. 13 That's lucky for you. Okay. Well, hearing 14 no other voices and seeing no other hands, 15 I'm going to move on with the understanding 16 that anybody that's selected out of this 17 group has no outside distractions, whether 18 it be work or family related. 19 The judge touched on it briefly with 20 regards to the burden of doubt here, and I 21 believe that he covered that area 22 satisfactorily, and I just want to make sure 23 that you understand that I do have the burden in 24 this case. 25 I'm a representative of Mr. McCabe, the KANABAY COURT REPORTERS 59 1 State of Florida, and the burden is right here 2 on me, squarely on me, and I want each and every 3 one of you to agree that you will hold me to my 4 job and nothing more than my job. 5 The judge talked about a shadow of a doubt, 6 and we have a reasonable doubt, and then, of 7 course, we have, you know, maybe, maybe not. I 8 don't want a maybe, maybe not. I don't want a 9 speculation. I don't want a proof by all doubt. 10 That's absolutely impossible. Unless you were 11 there and saw it for yourself, you're never 12 going to convince yourself proof by all doubt. 13 Is there anybody here that wants me to live 14 up to a higher standard? Anybody that thinks 15 that a reasonable doubt isn't good enough? 16 Mr. Garrison, is reasonable doubt a good 17 enough standard for you? 18 PROSPECTIVE JUROR GARRISON: Yes, it 19 is. 20 MS. WARDELL: Can you hold me to that 21 burden and that alone? 22 PROSPECTIVE JUROR GARRISON: Yes. 23 MS. WARDELL: Mr. Swonger? 24 PROSPECTIVE JUROR SWONGER: Yes, ma'am. 25 MS. WARDELL: Same question. KANABAY COURT REPORTERS 60 1 PROSPECTIVE JUROR SWONGER: Yeah. 2 MS. WARDELL: Do you expect more of me? 3 PROSPECTIVE JUROR SWONGER: No. 4 MS. WARDELL: Do you expect less of me? 5 PROSPECTIVE JUROR SWONGER: No, ma'am. 6 MS. WARDELL: Mr. Lovett, you expect 7 more of me? 8 PROSEPCTIVE JUROR LOVETT: No, ma'am. 9 MS. WARDELL: Do you think somebody 10 sitting here on criminal charges on trial 11 today, a very important day for Mr. Prince, 12 do you think because of that I should have 13 some higher burden? 14 PROSEPCTIVE JUROR LOVETT: No, ma'am. 15 MS. WARDELL: Is there anybody that 16 thinks I should have a higher burden? Okay. 17 Let the record reflect no hands. 18 Is there anybody who thinks, hey, wait a 19 minute, he is sitting there, where there's 20 smoke, there's fire, you don't need to have that 21 kind of burden, let's have a little bit lower 22 burden? Anybody who thinks just because he is 23 sitting there something wrong happened here? 24 You heard the phrase "presumption of 25 innocence." This is a criminal trial. It's not KANABAY COURT REPORTERS 61 1 a civil trial. Okay? Right now as Mr. Prince 2 sits before you he is what we call, quote, 3 presumed innocent. Is that a phrase that you 4 all have heard before? A nod of heads? Yes? 5 Okay. Can each of you, as we sit here now, 6 presume Mr. Prince innocent? Okay. 7 Miss Carter, I see you nodding your head. 8 PROSPECTIVE JUROR CARTER: Yes. 9 MS. WARDELL: Okay. And now, of 10 course, the converse of that and what I'm 11 going to ask you to do for me is once the 12 witnesses start to testify and once the 13 evidence begins to come out, can you agree 14 that you'll give me a fair shake at chipping 15 away at that presumption, and can you agree 16 that he may not have that presumption come 17 the end of the trial? Is that -- does 18 everybody understand that? 19 Mr. Wilson, I see you're nodding your head. 20 PROSPECTIVE JUROR WILSON: Yes. 21 MS. WARDELL: You agree right now he's 22 presumed innocent, but once the curtain 23 lifts, if you will, the State has a fair 24 shot of putting on the evidence, right, 25 Mr. Wickett? KANABAY COURT REPORTERS 62 1 PROSPECTIVE JUROR WICKETT: Yes. 2 MS. WARDELL: Is that fair? 3 PROSPECTIVE JUROR WICKETT: (Indicates.) 4 MS. WARDELL: Can you agree to that? 5 PROSPECTIVE JUROR WICKETT: Yes. 6 MS. WARDELL: Okay. Mr. Herdman? 7 PROSPECTIVE JUROR HERDMAN: Yes. 8 MS. WARDELL: Same question. Right 9 now, presumed innocent, end of the trial, 10 consider the facts and the evidence, and 11 maybe not give him that cloak? 12 PROSPECTIVE JUROR HERDMAN: Yeah. 13 MS. WARDELL: Okay? 14 PROSPECTIVE JUROR HERDMAN: Yes. 15 MS. WARDELL: Okay. All right. 16 Anybody that doesn't understand that 17 proposition or has a problem with that? All 18 right. 19 I want to give you an example, if you will, 20 and I want to ask you what you would think based 21 upon this example. Okay? 22 And, Miss Lepley, all right, I'm going to 23 ask you the question so I'll let you know it's 24 coming ahead of time. All right? We got two 25 women working at K Mart. They work side by side KANABAY COURT REPORTERS 63 1 and they're cashiers. These two women have 2 something in common. They used to date the same 3 guy. They didn't know each other was dating the 4 same guy. Now they do not like each other. 5 They don't like each other at all. 6 Day by day they sit there gritting their 7 teeth ringing their customers out. Well, 8 cashier number one sees cashier number two stick 9 some merchandise in her purse. Cashier number 10 one goes to the manager and says, "She's got 11 merchandise in her purse." Now, the manager 12 knows there is this hot history between the two. 13 With nothing more, nothing more -- 14 MR. DEVLAMING: Judge, I'm going to 15 object and ask to approach. 16 THE COURT: Please. 17 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 18 MR. DEVLAMING: Normally I don't like 19 to object to in voir dire, but I see where 20 she's heading. She's trying to get the jury 21 to precommit to a certain aspect of this 22 case and, that is whether or not -- I 23 imagine whether or not they would discredit 24 or hold it against somebody with use of this 25 hypothetical, and I think it is more towards KANABAY COURT REPORTERS 64 1 preconditioning of the jury than it is 2 towards getting an honest answer. 3 THE COURT: Is that where you're 4 headed? 5 MS. WARDELL: I'm heading with just 6 because the two people don't like each 7 other, in terms of the intentions of 8 somebody else, is that enough to make them 9 have a problem with the case? I mean, 10 that's the whole thing about -- 11 THE COURT: Overruled. 12 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 13 MS. WARDELL: Okay. So, Miss Lepley, 14 you're the manager. Based solely on cashier 15 number one, who you know has a contentious 16 relationship with cashier number two, do you 17 believe cashier number two has done 18 something wrong? 19 PROSPECTIVE JUROR LOVELY: Are you 20 talking to me? 21 MS. WARDELL: Yes, ma'am. 22 PROSPECTIVE JUROR LOVELY: Okay. My 23 name's Lovely. 24 MS. WARDELL: Oh, I'm sorry. 25 Miss Lovely. KANABAY COURT REPORTERS 65 1 PROSPECTIVE JUROR LOVELY: Okay. What 2 was -- sorry. What was the question again? 3 MS. WARDELL: Okay. The two cashiers 4 clearly dislike each other. The manager 5 knows it. You're the manager. 6 PROSPECTIVE JUROR LOVELY: Okay. 7 MS. WARDELL: Cashier number one comes 8 to you and says cashier number two has 9 concealed merchandise in her purse. Based 10 solely on the person who you know doesn't 11 like the other one telling you that, do you 12 believe it? 13 PROSPECTIVE JUROR LOVELY: Well, I 14 presume you're asking me this because you've 15 seen what my husband does for a living. 16 MS. WARDELL: No, ma'am. Is he -- 17 PROSPECTIVE JUROR LOVELY: He is a 18 retail manager. 19 MS. WARDELL: Oh, well then, good. You 20 were a good person -- 21 PROSPECTIVE JUROR LOVELY: I know that 22 he would question them about it. 23 MS. WARDELL: He would do something 24 more? 25 PROSPECTIVE JUROR LOVELY: He would KANABAY COURT REPORTERS 66 1 just question them. 2 MS. WARDELL: Okay. And, Miss Lepley, 3 I'm sorry. I was -- I got my boxes off. 4 Same question to you. Based solely on the 5 word of the cashier who dislikes the other 6 cashier, do you believe it? 7 PROSPECTIVE JUROR LEPLEY: I would 8 agree, I think you need to go ahead and 9 investigative and find out whether she does 10 have this and talk to her. 11 MS. WARDELL: You would like some 12 corroboration? 13 PROSPECTIVE JUROR LEPLEY: I would, 14 uh-huh, yes. 15 MS. WARDELL: What if you, yourself, 16 went to the purse and saw the concealed 17 merchandise? Would that make you feel 18 better about it? 19 PROSPECTIVE JUROR LEPLEY: I don't 20 think you could go into the person's things. 21 MS. WARDELL: Well, taking all those 22 outside issues, you have the purse and you 23 see the merchandise. Would that be your 24 independent corroboration? 25 PROSPECTIVE JUROR LEPLEY: I think so. KANABAY COURT REPORTERS 67 1 I would raise the issue and talk to the 2 person. 3 MS. WARDELL: Okay. Miss Carter, same 4 question to you. You know there's a 5 contentious relationship. Are you satisfied 6 just with one pointing the finger at the 7 other, or do you want something more? 8 PROSPECTIVE JUROR CARTER: I would want 9 something more. 10 MS. WARDELL: And if you have something 11 more, is that sufficient? 12 PROSPECTIVE JUROR CARTER: Yes. 13 MS. WARDELL: Okay. Is there anybody 14 who I don't care how much evidence you have 15 against cashier two, just because cashier 16 one told you about it and you know they 17 don't like it, that's not enough? You could 18 have a confession, you could have the 19 merchandise, you could have a hidden video 20 camera, but just because cashier number one 21 who doesn't like cashier number two told you 22 about it, is that enough to let cashier two 23 go? Anybody think that? 24 Mr. Swonger, you know what I'm asking? 25 PROSPECTIVE JUROR SWONGER: Yes, ma'am. KANABAY COURT REPORTERS 68 1 MS. WARDELL: What do you think? Do 2 you let them walk just because they don't 3 like each other? 4 PROSPECTIVE JUROR SWONGER: If you go 5 on the facts and information and prove that 6 he's guilty. 7 MS. WARDELL: You want to see 8 everything? 9 PROSPECTIVE JUROR SWONGER: Yes. 10 MS. WARDELL: Okay. Is there anybody 11 that has a different opinion than that? 12 Mr. Lovett, just because they don't like 13 each other and just because this one brings it 14 to the attention of manager, is that enough to 15 let her walk? 16 PROSEPCTIVE JUROR LOVETT: No. I'm 17 like him. I need all the information. 18 MS. WARDELL: You want the see it all? 19 PROSEPCTIVE JUROR LOVETT: Uh-huh. 20 MS. WARDELL: Okay. Is there anybody 21 that has a different opinion than that? I'm 22 not going to go one by one and ask the exact 23 same question, but I hope -- and the same 24 courtesy to Mr. DeVlaming. If you do have 25 an answer that is different than somebody, KANABAY COURT REPORTERS 69 1 raise your hand and speak up. 2 Mr. Wright, same question. 3 PROSPECTIVE JUROR WRIGHT: Same. I 4 would. 5 MS. WARDELL: Consensus. Cashier one 6 alone is not enough, but let's look at the 7 other stuff too? 8 PROSPECTIVE JUROR WRIGHT: Yes. Look 9 at more information, gather the information, 10 and make a determination. 11 MS. WARDELL: Okay. 12 Darryl Strawberry's been in the press a lot, 13 and I want to talk to you about that a 14 minute. Okay? Have you all been following 15 that story? Is there anybody here that 16 hasn't somewhat followed the story? You 17 haven't? Okay. Well, basically 18 Mr. Strawberry was on probation, it was drug 19 related, and as he was leaving a meeting 20 somebody who's a known in the area -- 21 MR. DEVLAMING: Judge, I'm going to 22 object. 23 THE COURT: Approach. 24 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 25 THE COURT: I'm trying to figure out KANABAY COURT REPORTERS 70 1 where you're heading with this hypothetical. 2 MS. WARDELL: Okay. On this one the 3 crackhead drives up to Mr. Strawberry and he 4 takes a hit, maybe he's a confidential 5 informant. I'm trying to get at because the 6 crackhead is the one that provided it, 7 Mr. Strawberry shouldn't be punished. The 8 whole defense is I was set up by somebody. 9 MR. DEVLAMING: Okay. The Simmons case 10 was in the news. Defense lawyers were 11 recently shut down by talking about other 12 actual cases in order to get the jurors 13 opinions as to whether or not they agreed or 14 disagreed with certain things. I don't have 15 a problem with her -- 16 THE COURT: I'll sustain the objection. 17 I think you need to ask the question in a 18 different way. In fact, why don't you just 19 ask the question? 20 MS. WARDELL: Do you have a problem 21 with giving my example and not using 22 Darryl Strawberry's name? You know, what is 23 that thing, you put the what -- you put the 24 food in front of the mouth, what is that 25 phrase? Dangling the carrot in front of the KANABAY COURT REPORTERS 71 1 nose, do you bite? 2 MR. DEVLAMING: I'm saying you can ask 3 the question without giving the specific of 4 the Strawberry case. 5 THE COURT: Frankly, I think what you 6 ought to do is just ask the question. 7 However, I'm somewhat concerned that you are 8 going to get into the facts of the case or 9 and the method in which you would ask the 10 question may in some way create a problem 11 for you. Okay. Let's try to ask the 12 question without using Darryl Strawberry's 13 name. 14 MS. WARDELL: Let me think about that. 15 What's the Court suggested way? If you 16 found out that one of the witnesses in this 17 case is such and such, are you going to 18 object to that? No, that's not -- one of 19 the witnesses in this case is -- 20 MR. DEVLAMING: No. Don't even say it 21 that way. Then you're talking about the 22 case. I think you can ask them if you want, 23 Lydia, if they have any preconceived notions 24 about using confidential informants. That's 25 what you want to know. KANABAY COURT REPORTERS 72 1 THE COURT: Well -- 2 MS. WARDELL: I'm just trying to find 3 out if they are going to let number two go 4 because number one is just as bad as number 5 one. 6 THE COURT: Ask that question. 7 MS. WARDELL: All right. 8 THE COURT: If you find out that number 9 one is as bad as two or one is just as bad 10 as the other one, can you evaluate the 11 person's testimony the same way? 12 MS. WARDELL: Okay. 13 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 14 MS. WARDELL: Okay. I'm going to do my 15 best to convey this question without 16 bringing Mr. Strawberry into this. Okay? 17 But let's say you have the scenario where 18 number two is doing something he shouldn't be 19 doing, but he is doing that because the carrot, 20 if you will, was dangled in front of his nose by 21 number one, so you may not like number one 22 dangling the carrot, but number two bit the 23 carrot, do you think just because number one may 24 have done something you didn't wrong -- I mean 25 you didn't like and you don't care for number KANABAY COURT REPORTERS 73 1 one, would you let number two go? Mr. Ondich? 2 PROSPECTIVE JUROR ONDICH: You lost me 3 there. 4 MS. WARDELL: Yeah. All right. 5 PROSPECTIVE JUROR ONDICH: I got -- I'm 6 lost. 7 MS. WARDELL: Okay. Number one dangles 8 the carrot in front of number two. 9 PROSPECTIVE JUROR ONDICH: Okay. 10 MS. WARDELL: Number two bites. 11 PROSPECTIVE JUROR ONDICH: Okay. 12 MS. WARDELL: Number one had the carrot 13 and passed it on to number two. Does number 14 two get away with what he did just because 15 number one put I out there? 16 PROSPECTIVE JUROR ONDICH: No. 17 MR. DEVLAMING: Objection. Well, your 18 Honor, I'm going to object. I think we need 19 to go into entrapment issues and all the 20 rest of it in order for this jury to make a 21 determination about this number one and 22 number two type of scenario. 23 MS. WARDELL: Okay. I'm trying to use 24 generics. 25 MR. DEVLAMING: I don't think that KANABAY COURT REPORTERS 74 1 question can be answered effectively by any 2 of these jurors -- 3 MS. WARDELL: If we're going to argue, 4 may we approach the bench? 5 THE COURT: Approach please. 6 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 7 THE COURT: I don't understand -- 8 here's the thing. You absolutely have the 9 right to determine, to ask whether or not 10 these jurors can be fair and impartial and 11 whether or not they will automatically 12 assume that just because two people involved 13 both have some sort of -- 14 MS. WARDELL: Dirty hands. 15 THE COURT: -- dirty hands that one 16 person is not guilty and the other one is. 17 But this -- fashion a question that says 18 that. In other words, I don't know why you 19 have to have the hypo. 20 MS. WARDELL: I'm telling the hypo as 21 part of the question. 22 THE COURT: Well, the question is fair. 23 The hypo seems to be confusing everybody. 24 MR. DEVLAMING: I agree with the, 25 Judge. I think, Lydia, you can ask the KANABAY COURT REPORTERS 75 1 question the way he is telling -- kind of 2 suggesting that you ask it without giving a 3 hypothetical. 4 MS. WARDELL: If two people have dirty 5 hands, can one walk away just because the 6 other's may be dirty too? 7 MR. DEVLAMING: I'll tell you how to do 8 it to save some time. 9 THE COURT: Yeah. Go ahead. 10 MR. DEVLAMING: Well, I know what Lydia 11 is doing. I'm just going to say, to help 12 things out, the way I usually do it is I 13 will say to a jury if you have a situation 14 where two people are drag racing, which is 15 unlawful, down the road, a cop sees the drag 16 racer, however, they come to a fork in the 17 road, they're both responsible, does the cop 18 let them both go or go after one in order to 19 catch them? 20 MS. WARDELL: How is that different? 21 It's the same. 22 THE COURT: I think that's the same. 23 MS. WARDELL: I don't think it's 24 better, but I'll -- 25 THE COURT: I think that's exactly the KANABAY COURT REPORTERS 76 1 same. I'm going to overrule the Defense's 2 Darryl Strawberry argument. 3 MR. DEVLAMING: Your Honor, is the 4 Court going to allow her to use the 5 Darryl Strawberry case as well as his name 6 and talk about the facts of that case? 7 THE COURT: I'm going to let her use 8 his name. Is there something to do with the 9 facts here? 10 MS. WARDELL: No. I'm just going to 11 say that somebody offered him cocaine. 12 MR. DEVLAMING: Judge, I strongly 13 object to that. I strongly object on this 14 record that you will allow the prosecutor to 15 use an active case in this community that 16 was in the newspaper. 17 MS. WARDELL: It's not active. 18 MR. DEVLAMING: It was very recently 19 active and highly televised in the news 20 media, yeah. I object. 21 THE COURT: All right. Go ahead. 22 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 23 THE COURT: We're trying to correct the 24 PA problem. About thirty seconds here. Go 25 ahead, Miss Wardell. KANABAY COURT REPORTERS 77 1 MS. WARDELL: Okay. I promise I'm not 2 trying to confuse you, but I think I'm going 3 to go back to Mr. Strawberry because I think 4 that might simplify it a little bit better. 5 Okay? 6 Mr. Shea? 7 PROSPECTIVE JUROR SHEA: Yeah. 8 MS. WARDELL: All right. In the 9 Strawberry case an individual who is a known 10 crackhead, if you will, someone that lives 11 on the streets that had all kinds of access 12 to crack, picks up Mr. Strawberry, lights 13 the pipe and puts it in front of his nose. 14 Mr. Strawberry takes a hit off that pipe. 15 Mr. Strawberry is then punished in court for 16 what he did with regard to the person 17 putting it in front of his nose. 18 Do you think because you have somebody 19 repugnant, somebody odious, somebody off the 20 street who goes to Mr. Strawberry and says, 21 "Here, smoke this," do you think the fact that 22 somebody put it in front of his nose means that 23 he shouldn't have been punished for what he did? 24 MR. DEVLAMING: Once again, Judge, I 25 impose my objection as stated at the bench. KANABAY COURT REPORTERS 78 1 MS. WARDELL: You can answer the 2 question. 3 PROSPECTIVE JUROR SHEA: Should I 4 answer? 5 MS. WARDELL: Yes. 6 PROSPECTIVE JUROR SHEA: Yeah, I would 7 say no. 8 MS. WARDELL: You think he should be 9 held accountable for his actions and she 10 should be accountable for hers? 11 PROSPECTIVE JUROR SHEA: They're 12 independent of each other. 13 MS. WARDELL: Okay. Mr. Ezell, did you 14 understand that set of facts? 15 PROSPECTIVE JUROR EZELL: (Indicates.) 16 MS. WARDELL: Sets it right up there to 17 his nose. It's kind of hard to turn away. 18 He does what he does. Does he get off 19 because somebody else fed it to him? 20 PROSPECTIVE JUROR EZELL: No. 21 MS. WARDELL: Do you have a problem 22 with him being punished for what he did? 23 PROSPECTIVE JUROR EZELL: He should be 24 punished because he already knew that he 25 shouldn't. KANABAY COURT REPORTERS 79 1 MS. WARDELL: Okay. What about you? 2 Same question. 3 PROSPECTIVE JUROR TSIKOS: I feel the 4 same way. 5 MS. WARDELL: Okay. No matter how 6 repugnant she is for sticking it right there 7 knowing that he, you know, had these 8 problems? 9 PROSPECTIVE JUROR TSIKOS: He would 10 still have had the responsibility of taking 11 it. 12 MS. WARDELL: So you can look at the 13 two and decide, okay, you're responsible for 14 (a), you're responsible for (b), and I'm 15 going to hold you each accountable for what 16 you did, correct? 17 PROSPECTIVE JUROR TSIKOS: Yes. 18 MS. WARDELL: Anybody -- without going 19 one by one again, is there anybody that has 20 a view different than that? Is there 21 anybody that says, hold on, wait a minute, 22 you can't send somebody like that, stick 23 that up under Mr. Strawberry's nose and not 24 think he is going do that, no fair to 25 Mr. Strawberry? Anybody? Back row, KANABAY COURT REPORTERS 80 1 anybody? 2 I'm not getting much of a reaction. Let 3 me -- does everybody agree with what's been 4 previously stated, everybody's responsible for 5 their own actions and their own participations? 6 THE PROSPECTIVE JURORS: Yes. 7 MS. WARDELL: Is that a yes from 8 everybody? 9 THE PROSPECTIVE JURORS: Yes. 10 MS. WARDELL: You heard the judge talk 11 at the beginning of this case it's going to 12 involve marijuana. There's a lot of 13 different views out there on marijuana. 14 Just, you know, people think it's has 15 medicinal purposes. People think it's just 16 no big deal. 17 I want to touch briefly on some of you 18 all's views. And I don't mean to put you on the 19 spot, and if you think you're going to say 20 something that you don't want everybody else to 21 hear because of your personal situation or 22 friends that you know or something, we'll 23 approach the bench. Okay? 24 But I kind of want to get a showing of 25 hands if you sort of think that marijuana is no KANABAY COURT REPORTERS 81 1 big deal. Smoke a joint, you know, it's really 2 not worse than taking a few shots of liquor or 3 something? 4 Mr. Wicket, do you have the "no big deal" 5 marijuana view? 6 PROSPECTIVE JUROR WICKETT: I know it's 7 illegal to possess and use. But other than 8 that, no. 9 MS. WARDELL: Do you think there are 10 times it's okay to have it? 11 PROSPECTIVE JUROR WICKETT: No, because 12 it's not -- it's illegal. It's an illegal 13 substance. 14 MS. WARDELL: This is difficult 15 question because I know it puts you on the 16 spot. 17 Mr. Ondich? 18 PROSPECTIVE JUROR ONDICH: It's 19 illegal. You shouldn't have it, but in 20 certain cases -- I have a friend of mine 21 that was suffering from severe cancer and he 22 had no appetite, and he says when he smoked 23 marijuana it increased his appetite and then 24 he would eat. And that's the only time he 25 used it. I was never around when he did it, KANABAY COURT REPORTERS 82 1 so I wouldn't witness him use it or 2 anything. 3 MS. WARDELL: So would you like to know 4 the reason the person has it? 5 PROSPECTIVE JUROR ONDICH: Yeah. 6 MS. WARDELL: In other words, just 7 recreation versus does that person really 8 think in their mind there is a reason for 9 it? 10 PROSPECTIVE JUROR ONDICH: Yes. 11 MS. WARDELL: That come into play? 12 PROSPECTIVE JUROR ONDICH: Yes. 13 MS. WARDELL: That's fair. Is there 14 anybody that has that opinion? 15 Miss Scurlock? Or do you think no matter 16 what the reason is, if the law says no, then no? 17 PROSPECTIVE JUROR SCURLOCK: Well, 18 you're asking me, and I just graduated as an 19 RN. And I believe in certain instances 20 there is research now on marijuana use as 21 far as cancer patients go, and it's illegal 22 so I personally wouldn't do it, but if it 23 became legal, I, of course, would accept it 24 as drug treatment for cancer because it's 25 proven. KANABAY COURT REPORTERS 83 1 MS. WARDELL: So would you like to know 2 whether the case involved recreational use 3 versus a legitimate -- 4 PROSPECTIVE JUROR SCURLOCK: If it 5 became legal for use, then yes. 6 MS. WARDELL: All right. Okay. Is 7 there anybody that just sort of has the 8 marijuana is no big deal opinion? Anybody? 9 Hey, you know, it's just a joint. Let it 10 go. 11 Mr. Osborn, what do you think about that? 12 PROSPECTIVE JUROR OSBORN: (Indicates.) 13 MS. WARDELL: No opinion? 14 PROSPECTIVE JUROR OSBORN: No, ma'am. 15 MS. WARDELL: Okay. All right. So 16 basically, kind of the point of that is you 17 follow the law like the judge said kind of 18 whether you like it or not. So what? You 19 know, maybe a joint's not that big of a 20 deal, but the letter of the law says you're 21 not supposed to have it, so you're not 22 supposed to have it? Can everybody agree to 23 that? 24 THE PROSPECTIVE JURORS: Yes. 25 MS. WARDELL: Now, I always use the KANABAY COURT REPORTERS 84 1 example of it's against the law to ride down 2 the sidewalk on a Wednesday in red socks, 3 and somebody sees the man on the sidewalk on 4 his bicycle in red socks. Okay? Well, it 5 may be kind of dumb, but if that law was on 6 the books, would you convict him? 7 Mr. Swonger? 8 PROSPECTIVE JUROR SWONGER: I agree 9 with Mr. Andrews, we're not going to change 10 the law here. You go through Tallahassee. 11 MS. WARDELL: That's an important 12 point, you know. No matter what your views 13 on whether marijuana should be legalized or 14 allowed for medicinal purposes, today's not 15 the day to argue that point. Today's a 16 pretty black and white day. Either he did 17 or didn't possess. That's the bottom line 18 here. 19 I want to ask you, each of you, if you have 20 heard the phrase "keep your eye on the ball." 21 Miss Carter, keep your eye on the ball, have you 22 heard that phrase? 23 PROSPECTIVE JUROR CARTER: Yes. 24 MS. WARDELL: Does anybody here have 25 children in little league? KANABAY COURT REPORTERS 85 1 PROSEPCTIVE JUROR LOVETT: Yes. 2 MS. WARDELL: Okay. Mr. Lovett. You 3 ever gone to watch them play? 4 PROSEPCTIVE JUROR LOVETT: I coach. 5 MS. WARDELL: You coach them. You ever 6 notice one of them may be out there in left 7 field and he's sort of drifting and he is 8 kind of looking at the stands and maybe 9 thinking about, you know, the cotton candy 10 that he would rather be having, and you tell 11 him get back in the game, get your eye back 12 on the ball? 13 PROSEPCTIVE JUROR LOVETT: Yes. 14 MS. WARDELL: Is that something you 15 have to tell them quite often? 16 PROSEPCTIVE JUROR LOVETT: No. 17 MS. WARDELL: Anybody else have kids 18 here in little league? 19 PROSEPCTIVE JUROR LOVETT: I say on my 20 team, no. 21 MS. WARDELL: Oh, you keep their 22 attention focused? 23 PROSEPCTIVE JUROR LOVETT: Yes, ma'am. 24 MS. WARDELL: And you tell them that, 25 keep your eye on the ball, stay in the game, KANABAY COURT REPORTERS 86 1 let's get your head straight? 2 PROSEPCTIVE JUROR LOVETT: Yes, ma'am, 3 definitely. 4 MS. WARDELL: Miss Carter? 5 PROSPECTIVE JUROR CARTER: Yes. 6 MS. WARDELL: Do you coach or just go 7 and watch? 8 PROSPECTIVE JUROR CARTER: Just watch. 9 MS. WARDELL: Ever notice one of them 10 out in the outfield and you sort of have to 11 go to get them back and remind them what the 12 focus is? 13 PROSPECTIVE JUROR CARTER: Yes. 14 MS. WARDELL: Same thing like with 15 dance classes, or, you know, maybe you're 16 sitting at a seminar and the lecturer's up 17 there and you're like, whoa, and you have to 18 remind yourself, whoa, I got to pay 19 attention to what's going on. Okay? 20 So I just ask that each of you promise me 21 that you will keep your eye on the ball here and 22 stay in the game and not lose the forest for the 23 trees, so to speak, and let some things distract 24 you. Okay? 25 The judge talked to you about sympathy, so KANABAY COURT REPORTERS 87 1 I'm not going to repeat that. Oh, I know one 2 question. 3 Miss Scurlock, do you know Yolanda Gonzales 4 with R'Club? 5 PROSPECTIVE JUROR SCURLOCK: I don't -- 6 the name doesn't sound familiar. 7 MS. WARDELL: She had a case that I was 8 involved in. I just wanted to make sure she 9 didn't discuss that with you. 10 PROSPECTIVE JUROR SCURLOCK: Oh, no. I 11 don't -- they're all different. I'm at the 12 Exceptional Ed. Center. So we are totally 13 different. 14 MS. WARDELL: All right. So you never 15 talked to her about anything she had to do 16 here? 17 PROSPECTIVE JUROR SCURLOCK: No. I 18 don't know. 19 MS. WARDELL: Is there anybody that's 20 had friends or family members recently 21 involved with the court system? I wrote 22 down a couple. I'm sorry. 23 Mr. Ondich? 24 PROSPECTIVE JUROR ONDICH: I'm in it 25 now with my wife. She -- we're going after KANABAY COURT REPORTERS 88 1 a child support case, and we spoke to our 2 attorney yesterday and I asked him and he 3 said it doesn't really matter that I do. 4 But since you asked that question she, is 5 involved. I am not really involved. I just 6 go to support her, and they said they're 7 supposed to get back to us today about 8 setting a judgment. 9 MS. WARDELL: Do you actually come 10 down -- 11 PROSPECTIVE JUROR ONDICH: I've never 12 been here before. 13 MS. WARDELL: So you haven't been here. 14 Is the State involved with DCF or any of 15 those folks involved with it? 16 PROSPECTIVE JUROR ONDICH: I really 17 truly don't know. 18 MS. WARDELL: Okay. 19 PROSPECTIVE JUROR ONDICH: I stay out 20 of it because it's her deal. 21 MS. WARDELL: There is nothing about 22 that that might make you harbor some 23 prejudice against the State -- 24 PROSPECTIVE JUROR ONDICH: Correct. 25 MS. WARDELL: -- because of whatever is KANABAY COURT REPORTERS 89 1 going on with her? 2 PROSPECTIVE JUROR ONDICH: Correct. 3 MS. WARDELL: Okay. I'm sorry. Who 4 else raised their hand? Mr. Rothschild. 5 Shea, I'm sorry. 6 PROSPECTIVE JUROR SHEA: I got a 7 brother that's in jail. He just got 8 convicted about three weeks ago. 9 MS. WARDELL: Here in Pinellas County? 10 PROSPECTIVE JUROR SHEA: Up in 11 Massachusettes. 12 MS. WARDELL: Okay. Did you attend 13 that trial? 14 PROSPECTIVE JUROR SHEA: No. 15 MS. WARDELL: Was it a trial or was 16 it -- do you know? 17 PROSPECTIVE JUROR SHEA: You know, I 18 don't even keep contact with him. I know 19 from my other brother that he is in jail. 20 MS. WARDELL: Is there anything about 21 that that you think he was treated unfairly 22 or with disrespect? 23 PROSPECTIVE JUROR SHEA: You know, it's 24 not the first time, so, no, I don't. 25 MS. WARDELL: Is there anything about KANABAY COURT REPORTERS 90 1 that experience that you might hold against 2 the State? 3 PROSPECTIVE JUROR SHEA: No. 4 MS. WARDELL: What about the Defense? 5 PROSPECTIVE JUROR SHEA: No. 6 MS. WARDELL: Who else, either you or 7 close family member? Okay. 8 Mr. Wright? 9 PROSPECTIVE JUROR WRIGHT: My brother. 10 MS. WARDELL: Was that a situation that 11 was involved in Pinellas County? 12 PROSPECTIVE JUROR WRIGHT: Yes. 13 MS. WARDELL: Okay. He was the 14 accused? 15 PROSPECTIVE JUROR WRIGHT: Yes. He's 16 in the system. He's away now. 17 MS. WARDELL: I'm sorry, what? 18 PROSPECTIVE JUROR WRIGHT: He's -- he's 19 in -- he's away. 20 MS. WARDELL: In the prison system? 21 PROSPECTIVE JUROR WRIGHT: Doing time, 22 yes. 23 MS. WARDELL: Okay. Did this office, 24 my office, convict him? 25 PROSPECTIVE JUROR WRIGHT: No. I don't KANABAY COURT REPORTERS 91 1 know. I don't follow up on him. 2 MS. WARDELL: How recent was that case? 3 PROSPECTIVE JUROR WRIGHT: A year and a 4 half ago. 5 MS. WARDELL: Was it -- 6 PROSPECTIVE JUROR WRIGHT: It was a 7 long -- he is in and out. 8 MS. WARDELL: Did you come to any of 9 his court hearings or participate in any 10 way? Did you talk to -- without telling me 11 what he said, did he talk about the facts of 12 the case? 13 PROSPECTIVE JUROR WRIGHT: No. 14 MS. WARDELL: Is there anything that 15 makes you think he might have been treated 16 unfairly in that case? 17 PROSPECTIVE JUROR WRIGHT: No. 18 MS. WARDELL: Is there anything about 19 that experience that would make you harbor 20 ill will towards the State because, quite 21 frankly, we put him there? 22 PROSPECTIVE JUROR WRIGHT: No. 23 MS. WARDELL: Okay. All right. Who 24 else raised their hand? 25 Miss Tsikos? KANABAY COURT REPORTERS 92 1 PROSPECTIVE JUROR TSIKOS: I'd like to 2 approach. 3 THE COURT: All right. 4 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 5 PROSPECTIVE JUROR TSIKOS: My son is -- 6 has a DUI against him and he will be -- I 7 don't know when because he thinks it's a 8 secret, but my daughter-in-law told me about 9 it. I have no hard feelings against anyone, 10 but he also had previous problems when he 11 was a teenager. I am unbiased. 12 THE COURT: You don't think that's 13 going to affect your decision? 14 PROSPECTIVE JUROR TSIKOS: I know it's 15 not going to affect my decision, but I feel 16 I have to tell you, right. 17 THE COURT: We thank you. Do you have 18 any questions? 19 MS. WARDELL: Has he talked to you 20 about the circumstances surrounding his 21 arrest? 22 PROSPECTIVE JUROR TSIKOS: He has not 23 said a word. And my daughter-in-law told 24 me, and I don't know too much about it. 25 It's supposed to be sometime next month that KANABAY COURT REPORTERS 93 1 they will -- 2 MS. WARDELL: Any indication he was 3 treated unfairly by the police during that 4 incident? 5 PROSPECTIVE JUROR TSIKOS: No. 6 MS. WARDELL: What about the prior 7 things that he was involved in? Any 8 indication law enforcement was not fair to 9 him? 10 PROSPECTIVE JUROR TSIKOS: No, because 11 I was there and I saw it. No, it was always 12 fair. 13 MS. WARDELL: And he got a fair shake? 14 PROSPECTIVE JUROR TSIKOS: Yes. 15 MS. WARDELL: And did he come through 16 the system on this? 17 PROSPECTIVE JUROR TSIKOS: Did he what? 18 MS. WARDELL: Come through the system 19 in those other cases? 20 PROSPECTIVE JUROR TSIKOS: In Pinellas 21 County. 22 MS. WARDELL: Yes, ma'am. Did he come 23 to the judge? 24 PROSPECTIVE JUROR TSIKOS: Twenty years 25 ago, something like that, yeah. KANABAY COURT REPORTERS 94 1 MS. WARDELL: Okay. 2 PROSPECTIVE JUROR TSIKOS: No. He did 3 get a fair shake. I have no problem with 4 the law. 5 MR. DEVLAMING: Just one. Did that 6 involve any drug abuse issues in the past? 7 PROSPECTIVE JUROR TSIKOS: In the very, 8 very past when he was young. 9 MR. DEVLAMING: Okay. Thank you, 10 ma'am. 11 PROSPECTIVE JUROR TSIKOS: When he was 12 a teenager at the time. 13 MR. DEVLAMING: Okay. Juvenile. 14 MS. WARDELL: Do you know whether he 15 retained an attorney? 16 PROSPECTIVE JUROR TSIKOS: For this new 17 one, the DUI? 18 MS. WARDELL: Yes. 19 PROSPECTIVE JUROR TSIKOS: Yes, my 20 daughter in law said he did. 21 MS. WARDELL: Do you know who it is? 22 PROSPECTIVE JUROR TSIKOS: I have no 23 clue. 24 MR. DEVLAMING: I can tell you it's not 25 me. KANABAY COURT REPORTERS 95 1 THE COURT: Thank you. 2 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 3 MS. WARDELL: Okay. Is there anyone 4 else who either you or a close family member 5 has been involved somehow with the criminal 6 justice system? Okay. 7 PROSPECTIVE JUROR ELLIS: Involved 8 recently? 9 THE COURT: Yeah, and really at any 10 point, and we'll talk about how recently. 11 Okay? 12 Miss Scurlock, I actually had written down 13 that you checked off on your form you had been 14 accused. 15 PROSPECTIVE JUROR SCURLOCK: Yes. I 16 was accused -- someone had stoled (sic) my 17 driver's license in '96 and used it to cash 18 two stolen checks. I was arrested in 19 Pinellas County, but the warrant was served 20 out of Hillsborough County, and so I had to 21 go to trial over there, and that's when they 22 dropped the charges when they realized it 23 wasn't me. 24 MS. WARDELL: How long did you stay in 25 jail? KANABAY COURT REPORTERS 96 1 PROSPECTIVE JUROR SCURLOCK: I was only 2 in jail for, like, three hours here. 3 MS. WARDELL: And ultimately somebody 4 was able to assist you and straighten it all 5 out? 6 PROSPECTIVE JUROR SCURLOCK: Oh, yeah. 7 I had to hire an attorney and to prove that 8 it wasn't me. 9 MS. WARDELL: All right. Is there 10 anything about the way maybe the detention 11 deputies treated you or the or cops -- were 12 you stopped for speeding or something and 13 they saw -- 14 PROSPECTIVE JUROR SCURLOCK: No, no. 15 Actually what happened was they came to my 16 job, and luckily I wasn't there that day. I 17 would have had a fit, but -- and they left 18 the card stating that they were wanting to 19 arrest me. So I came up here to find out 20 what it was for, and they told me and then 21 they arrested me at that time. 22 MS. WARDELL: Is there anything about 23 that experience that -- 24 PROSPECTIVE JUROR SCURLOCK: No. I 25 mean, I understood what happened, you know, KANABAY COURT REPORTERS 97 1 afterwards. Of course during the process I 2 freaked out, but afterwards, you know, I was 3 fine with it. 4 MS. WARDELL: So you can still be fair 5 and impartial? 6 PROSPECTIVE JUROR SCURLOCK: Oh, yes. 7 MS. WARDELL: Okay. All right. Were 8 you going to tell me something else? 9 PROSPECTIVE JUROR SCURLOCK: No, that 10 was it. 11 MS. WARDELL: Okay. All right. I 12 think Mr. Lovett, did you raise your hand? 13 PROSEPCTIVE JUROR LOVETT: Yeah, I have 14 a brother that's in the system. 15 MS. WARDELL: Okay. 16 PROSEPCTIVE JUROR LOVETT: But -- 17 MS. WARDELL: The prison system? 18 PROSEPCTIVE JUROR LOVETT: Yes, yes. 19 And it was just, you know, a situation when 20 I was serving in the military that my name 21 was used quite often. 22 MS. WARDELL: Oh, he was trying to be 23 you? 24 PROSEPCTIVE JUROR LOVETT: Exactly. 25 MS. WARDELL: Oh, how aggravating. KANABAY COURT REPORTERS 98 1 Well, did you ever get arrested because of 2 that? 3 PROSEPCTIVE JUROR LOVETT: Yes. 4 MS. WARDELL: You did? 5 PROSEPCTIVE JUROR LOVETT: Yeah. 6 MS. WARDELL: Did you get it 7 straightened out -- 8 PROSEPCTIVE JUROR LOVETT: Oh, yes. 9 MS. WARDELL: -- that you weren't him? 10 Did anybody treat you unfairly or wrongly 11 while arresting you and taking you through 12 that process? 13 PROSEPCTIVE JUROR LOVETT: No. I just 14 went along with it because I knew. 15 MS. WARDELL: You knew that it was 16 probably your brother saying he was you? 17 PROSEPCTIVE JUROR LOVETT: Yes. 18 MS. WARDELL: Do you think State acted 19 responsibly in clearing things up and 20 recognizing it? 21 PROSEPCTIVE JUROR LOVETT: Oh, yes. 22 MS. WARDELL: So you don't have any 23 issues with the State? 24 PROSEPCTIVE JUROR LOVETT: No. 25 MS. WARDELL: Was it Pinellas County KANABAY COURT REPORTERS 99 1 that put your brother in prison? 2 PROSEPCTIVE JUROR LOVETT: Pinellas 3 County, yes. 4 MS. WARDELL: How long ago was that? 5 PROSEPCTIVE JUROR LOVETT: I want to 6 say '92. 7 MS. WARDELL: And he is still there? 8 PROSEPCTIVE JUROR LOVETT: Yes. 9 MS. WARDELL: I didn't do it, did I? 10 PROSEPCTIVE JUROR LOVETT: I don't 11 know. I wasn't here. 12 MS. WARDELL: Okay. Same question to 13 you. I didn't do that other one, did I? 14 PROSPECTIVE JUROR WRIGHT: I wasn't 15 there either. 16 THE COURT: All right. I think I saw 17 some other hands. 18 Miss Ellis, you wanted to tell me 19 something. 20 PROSPECTIVE JUROR ELLIS: It's been a 21 long time. It was in a different state, so 22 I don't know if that -- 23 MS. WARDELL: It was you? 24 PROSPECTIVE JUROR ELLIS: No, it wasn't 25 me. KANABAY COURT REPORTERS 100 1 MS. WARDELL: Was it a family member? 2 PROSPECTIVE JUROR ELLIS: Uh-huh. 3 Father. I would prefer not to discuss it 4 openly. 5 THE COURT: Okay. We'll come up to the 6 bench. 7 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 8 PROSPECTIVE JUROR ELLIS: It's been 9 many years. My father was in prison for 10 thirteen years. 11 THE COURT: Okay. 12 PROSPECTIVE JUROR ELLIS: For cocaine. 13 THE COURT: Any questions? 14 MS. WARDELL: Drug related? 15 MR. DEVLAMING: Sorry, I didn't hear 16 that. 17 PROSPECTIVE JUROR ELLIS: It was drug 18 related. 19 MS. WARDELL: How old were you when he 20 would have been prosecuted? 21 PROSPECTIVE JUROR ELLIS: Two. 22 MS. WARDELL: Okay. 23 PROSPECTIVE JUROR ELLIS: Until I was a 24 teenager. 25 MS. WARDELL: So did you go visit him KANABAY COURT REPORTERS 101 1 and things? 2 PROSPECTIVE JUROR ELLIS: Uh-huh. 3 MS. WARDELL: Did he talk about the 4 facts of his case? 5 PROSPECTIVE JUROR ELLIS: Not really. 6 MS. WARDELL: Did he ever give you the 7 impression that he was wrongly accused? 8 PROSPECTIVE JUROR ELLIS: He deserved 9 it. 10 MS. WARDELL: Okay. 11 PROSPECTIVE JUROR ELLIS: He did it. 12 MS. WARDELL: Anything about that that 13 you would hold it against the State? 14 PROSPECTIVE JUROR ELLIS: No. 15 THE COURT: Mr. DeVlaming? 16 MR. DEVLAMING: Miss Ellis, has it left 17 you with any feelings, though, about -- 18 you've just heard that this is a marijuana 19 case. Did you feel that based upon that 20 experience in your life that you would come 21 in and be more one-sided than the other or 22 not? 23 PROSPECTIVE JUROR ELLIS: No. 24 MR. DEVLAMING: You can still be fair? 25 PROSPECTIVE JUROR ELLIS: I'm very KANABAY COURT REPORTERS 102 1 impartial. 2 MR. DEVLAMING: Okay. Thank you, 3 ma'am. 4 PROSPECTIVE JUROR ELLIS: Thank you. 5 THE COURT: Thank you. 6 (WHEREUPON THE FOLLOWING BENCH CONFERENCE CONCLUDED) 7 MS. WARDELL: Okay. Mr. Shea? 8 PROSPECTIVE JUROR SHEA: I was arrested 9 here in Pinellas County within the last 10 year. 11 MS. WARDELL: Okay. All right. And is 12 our office currently prosecuting you? 13 PROSPECTIVE JUROR SHEA: No. 14 MS. WARDELL: The charges were dropped? 15 PROSPECTIVE JUROR SHEA: PTI. 16 MS. WARDELL: Okay. Well, does that 17 mean you think you were treated fairly? 18 PROSPECTIVE JUROR SHEA: I think I got 19 as good as I could hope for. 20 MS. WARDELL: Is that misdemeanor PTI? 21 PROSPECTIVE JUROR SHEA: Yes. 22 MS. WARDELL: Do you remember the 23 name -- I'm sure that was me because that's 24 one of my job responsibilities. Did you 25 recognize my name as being on your document KANABAY COURT REPORTERS 103 1 that put you in that program? 2 PROSPECTIVE JUROR SHEA: No. 3 MS. WARDELL: Do you think you 4 shouldn't even have gotten to the point 5 where you had to apply for PTI? 6 PROSPECTIVE JUROR SHEA: I think that 7 it was the best I could hope for, yes. 8 MS. WARDELL: Well, I can tell you with 9 about a hundred percent certainty that I'm 10 the one that signed that paperwork. Do you 11 got a problem with that? 12 PROSPECTIVE JUROR SHEA: I didn't know 13 you were on the paperwork, but, no. 14 MS. WARDELL: Do you think that -- 15 well, basically what I'm saying is it would 16 have been my call whether to put you on the 17 program. I would have reviewed the police 18 report and decided whether you qualified. 19 Do you think that because I put you on that 20 program you might like me a little bit 21 better? You're not worried that I might 22 take you off if you don't vote my way? 23 PROSPECTIVE JUROR SHEA: Like I said, I 24 didn't know you were involved. It was the 25 judge, I thought, that made the decision. KANABAY COURT REPORTERS 104 1 MS. WARDELL: Okay. No. That's the 2 State Attorney program and the State 3 Attorney makes all the calls on that. Is 4 there anything about the experience? Do you 5 think you were treated unfairly? Were you 6 arrested? 7 PROSPECTIVE JUROR SHEA: Yes, I was 8 arrested, but, I mean, you know, they 9 treated me with respect I guess. 10 MS. WARDELL: That's what I'm getting 11 at. Do you think they just scooped you up, 12 shoved you in the slammer and moved on to 13 the next case, or did they treat you with 14 respect, you know? 15 PROSPECTIVE JUROR SHEA: I mean, you 16 know, they had a job to do and they did it. 17 MS. WARDELL: Okay. So you're 18 satisfied with the disposition? 19 PROSPECTIVE JUROR SHEA: Like I said, 20 obviously PTI was what I wanted, I got it, 21 and that was the best I could hope for, yes. 22 MS. WARDELL: Okay. Now that you know 23 that I'm involved in that decision, will you 24 be pro-State? 25 PROSPECTIVE JUROR SHEA: What's that? KANABAY COURT REPORTERS 105 1 MS. WARDELL: Do you think you might be 2 a little more pro-State now that you know I 3 would have been involved in that decision? 4 PROSPECTIVE JUROR SHEA: No. 5 MS. WARDELL: What about little more 6 pro-Defense because you might be wondering, 7 gee, why didn't he do the same thing? 8 PROSPECTIVE JUROR SHEA: Like I said, 9 if I thought I had -- 10 MS. WARDELL: Okay. You can be fair 11 and impartial? 12 PROSPECTIVE JUROR SHEA: (Indicates.) 13 MS. WARDELL: I appreciate that. Is 14 there anybody else that I've missed that 15 either themself has been accused, arrested, 16 or a family member? Okay. 17 Miss Lovely -- Lepley? 18 PROSPECTIVE JUROR LEPLEY: Yes, ma'am. 19 MS. WARDELL: Miss Lepley wants to 20 approach, Judge. 21 THE COURT: Okay. Please come forward. 22 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 23 THE COURT: Yes, ma'am. What did you 24 want to tell us? 25 PROSPECTIVE JUROR LEPLEY: My children KANABAY COURT REPORTERS 106 1 when they were young -- now they are all in 2 their 40s -- were involved with -- 3 THE COURT: Marijuana? 4 PROSPECTIVE JUROR LEPLEY: Uh-huh. 5 And, in fact, they graduated the Seed at 6 that time, and all of them are doing 7 beautiful now and no problems with court or 8 things like that. I thought I should, you 9 know, mention that that was a family 10 problem. 11 THE COURT: Okay. 12 MS. WARDELL: They were prosecuted, or 13 you handled it? 14 PROSPECTIVE JUROR LEPLEY: No. They 15 were -- I handled it. They did -- we did 16 have a child that graduated the Seed. 17 MS. WARDELL: Sorry, what did they 18 graduate? 19 PROSPECTIVE JUROR LEPLEY: It was at 20 the Seed. 21 MS. WARDELL: The After Seed program. 22 Okay. 23 PROSPECTIVE JUROR LEPLEY: Yes, in 24 Lauderdale. 25 MS. WARDELL: It was a court ordered KANABAY COURT REPORTERS 107 1 program? 2 PROSPECTIVE JUROR LEPLEY: No. When 3 they were teenagers that's when they went. 4 When they were teenagers, anything that was 5 done usually came through the school and 6 then we worked it out with community service 7 and that type of thing. Nothing to do with 8 any charges. 9 MS. WARDELL: Okay. Okay. 10 THE COURT: Thank you, ma'am 11 Mr. DeVlaming? 12 MR. DEVLAMING: No, I don't have any 13 questions, sir. 14 THE COURT: Thank you. 15 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 16 THE COURT: Please proceed. 17 MS. WARDELL: Thank you, Judge. 18 Miss Lepley, I note that you're retired 19 from the St. Pete Times. 20 PROSPECTIVE JUROR LEPLEY: Uh-huh. 21 MS. WARDELL: Would you just talk to me 22 a minute about what your responsibilities 23 would have been? 24 PROSPECTIVE JUROR LEPLEY: I was 25 assistant photo editor and special manager. KANABAY COURT REPORTERS 108 1 MS. WARDELL: So did you actually 2 participate in the writing of articles? 3 PROSPECTIVE JUROR LEPLEY: I did at one 4 time early on in my career, then I moved up. 5 I was primarily responsible for any of the 6 photos that we got from other newspapers or 7 around the world and hiring freelancers to 8 provide photos that our photographers were 9 unable to go and obtain, news that was 10 actually happening at that time. 11 MS. WARDELL: Did your job duties 12 include criminal cases that were covered in 13 the paper? 14 PROSPECTIVE JUROR LEPLEY: Photos would 15 be coming in, but other than that, I didn't 16 have anything to do with the writing at that 17 time. 18 MS. WARDELL: Is there anything about 19 that experience and the articles, the 20 photographs you would have participated in, 21 that might cause you a problem to sit on 22 this jury today? 23 PROSPECTIVE JUROR LEPLEY: I don't 24 think so. 25 MS. WARDELL: Okay. All right. KANABAY COURT REPORTERS 109 1 PROSPECTIVE JUROR LEPLEY: Because the 2 things that you do, you do in context with 3 what your specific part of the job would be. 4 You don't go tell someone else what the news 5 is, what they're writing. You obtain the 6 photos to go with the story. 7 MS. WARDELL: Okay. Mr. Wright, you 8 mentioned that you knew Bailiff Oliver and 9 the Clerk that was here. Anything about 10 that relationship with either of the two 11 that would cause you not to be fair and 12 impartial today? 13 PROSPECTIVE JUROR WRIGHT: No. 14 MS. WARDELL: You think -- are you -- 15 do you ever talk to Mr. Bailiff Oliver about 16 some of the case he has watched or seen or 17 had conversations about that? 18 PROSPECTIVE JUROR WRIGHT: No. I just 19 know him through high school. 20 MS. WARDELL: Okay. Same question of 21 the Clerk. Do you have conversations about 22 what she sees every day in court? 23 PROSPECTIVE JUROR WRIGHT: No. 24 MS. WARDELL: All right. All right. 25 This is the last question and I'm done. Is KANABAY COURT REPORTERS 110 1 there anything that's on anybody's mind that 2 they need to bring to our attention that 3 might cause you to be distracted from the 4 facts and the evidence in this case? 5 Anything? I appreciate your time. 6 THE COURT: Thank you. Mr. DeVlaming, 7 sir, do you wish to inquire at this time? 8 MR. DEVLAMING: If you want to go 9 straight on, yes, sir. 10 THE COURT: I do want to go straight on 11 unless you all are about to tell me that 12 it's time for another break. I believe 13 Mr. DeVlaming, not being able to gauge how 14 long he is going take, I assume he might 15 take an hour. Do we need to take a short 16 break before we get started? Anybody who 17 needs a break please raise your hand? All 18 right. 19 Everybody can hold for an hour, 20 Mr. DeVlaming. Let's proceed. 21 MR. DEVLAMING: I'm going to tell you 22 I'm not going to take an hour. 23 PROSPECTIVE JUROR BACKUS: Thank you. 24 MR. DEVLAMING: Your welcome. I do 25 have some questions, members of the jury. KANABAY COURT REPORTERS 111 1 You'll find out that whoever's chosen on 2 this panel that I'll always go second, and 3 that's the rules of the road, the rules of 4 court, and we'll abide by them. It's the 5 prosecutor's burden in this case to prove 6 the case. We're here to defend against it. 7 Do you all understand that? 8 THE PROSPECTIVE JURORS: Yes. 9 MR. DEVLAMING: Does everybody in this 10 panel believe that a person, a citizen in 11 this country, has the right to take their 12 case to court if they believe they're 13 innocent? 14 THE PROSPECTIVE JURORS: Yes. 15 THE BAILIFF: Okay. Now, you know, 16 it's funny some of you chose to go to the 17 bench, which is fine, and, frankly, I would 18 have too in many of your cases. 19 Mr. Shea we kind of discussed a little bit 20 about you getting on the PTI program. For the 21 benefit of the rest of you, that stands for 22 Pretrial Intervention. I don't mean to talk 23 about Mr. Shea, but just in case you were 24 scratching your head about the dialog there, it 25 means his case was taken out of the system, for KANABAY COURT REPORTERS 112 1 whatever reasons given, and he didn't have to go 2 to court. 3 That was your right the apply for that 4 program, correct? 5 PROSPECTIVE JUROR SHEA: Yes, sir. 6 MR. DEVLAMING: It would also have been 7 your right, if you wanted to, to take this 8 matter to court? 9 PROSPECTIVE JUROR SHEA: Yes, sir. 10 MR. DEVLAMING: All right. Do you 11 understand that this is a misdemeanor case? 12 Drugs can either be felonies or they can be 13 misdemeanors. Do you understand you're in 14 misdemeanor court? Does everybody 15 understand where we are? 16 THE PROSPECTIVE JURORS: Yes. 17 MR. DEVLAMING: Okay. I'm going to ask 18 a question and I'm going to tell you in a 19 minute why I'm asking it, and you're going 20 to see me just kind of making a note or two. 21 I want you to raise your hand if you live 22 north of you Ulmerton Road. If you live north 23 of Ulmerton road. Just -- first row just keep 24 them up for one second. Okay. Second row. 25 Miss Carter. First row can put them down. KANABAY COURT REPORTERS 113 1 Okay. Second row put them down. Third row, 2 Miss Dake. Anybody else in the third row? 3 Okay. Okay. Miss Ellis. No? Okay. All 4 right. All right. Miss Lovely, Mr. Wickett and 5 Mr. Mensch. Okay. 6 I want you to raise your hand now if you 7 have never heard of the Church of Scientology. 8 If you have never heard of the Church of 9 Scientology, raise your hand. Okay. It just 10 looks like there is only two hands. 11 And, Mr. Lovett, you've never heard that 12 word before? 13 PROSEPCTIVE JUROR LOVETT: Never. 14 MR. DEVLAMING: Okay. And Mr. Ondich? 15 PROSPECTIVE JUROR ONDICH: No. 16 MR. DEVLAMING: Okay. I'm going to 17 assume the rest of you have. Judge Andrews 18 said something in the beginning of this 19 case, and that is there may be an issue 20 about this. 21 Mr. Prince is not a member of the Church of 22 Scientology; however, there may be some issues 23 surrounding some of the practices of that 24 particular organization. 25 Now, the question I have for you now is, of KANABAY COURT REPORTERS 114 1 the people other than Mr. Lovett and Mr. Ondich, 2 has everybody else heard at least something 3 about the practices of that particular religion? 4 Raise your hand if at least you have heard about 5 some of the practices of that particular 6 organization. Okay? I'm looking around real 7 fast. 8 And Mr. Wilson, I don't see your hand up. 9 You don't -- you haven't hear of -- you've heard 10 of the -- 11 PROSPECTIVE JUROR WILSON: I've heard 12 of the name. I don't know what -- 13 THE COURT: Anything about it. 14 PROSPECTIVE JUROR WILSON: -- anything 15 about them or what they do or anything. 16 MR. DEVLAMING: Anybody else that 17 doesn't know anything about it? 18 PROSPECTIVE JUROR SCURLOCK: I know the 19 name, but I don't know what they practice. 20 MR. DEVLAMING: Okay. And Bartocci? 21 Okay. There was two hands. 22 And Mr. Wright, you don't know anything 23 about their practices at all? 24 PROSPECTIVE JUROR WRIGHT: No. 25 MR. DEVLAMING: Okay. Mr. Benjamin, KANABAY COURT REPORTERS 115 1 you don't either? 2 PROSPECTIVE JUROR BENJAMIN: No. 3 MR. DEVLAMING: Okay. All right. 4 Miss Tsikos, don't know anything about the 5 practices of that particular -- 6 PROSPECTIVE JUROR TSIKOS: No. 7 MR. DEVLAMING: Do you live in north 8 county? 9 PROSPECTIVE JUROR TSIKOS: I live in 10 Dunedin, right. 11 MR. DEVLAMING: Okay. In Dunedin. 12 Okay. All right. Is anybody here on the 13 panel a member be the Church of Scientology? 14 Does anybody on this panel know someone who 15 is a member of the Church of Scientology? 16 The record will reflect on both of those 17 last questions I'm seeing no hands, so I'm 18 trying to abide by my promise that I'm not 19 going to keep you here an hour. So I'm not 20 hearing anybody that is a member of the 21 church or that knows a member of the church. 22 Has anybody ever been to a tour of the 23 Church of Scientology? I see no hands. Has 24 anybody read any books authored by a man by the 25 name of L. Ron Hubbard? KANABAY COURT REPORTERS 116 1 Yes, Mr. Backus, have you? 2 PROSPECTIVE JUROR BACKUS: Yes. 3 MR. DEVLAMING: Okay. Was it -- I 4 don't mean to get personal with you, but was 5 it out of curiosity you did it, or -- 6 PROSPECTIVE JUROR BACKUS: I read a lot 7 of nonfiction, and I assumed when I read the 8 book it was nonfiction. After I read the 9 book I thought it was fiction. 10 MR. DEVLAMING: Okay. Was it a sci-fi 11 book? 12 PROSPECTIVE JUROR BACKUS: Somewhat to 13 me. 14 MR. DEVLAMING: All right. But, I 15 mean, it wasn't a book called "Dianetics?" 16 PROSPECTIVE JUROR BACKUS: Yes, it was. 17 MR. DEVLAMING: It was? 18 PROSPECTIVE JUROR BACKUS: Yes. 19 MR. DEVLAMING: All right. All right. 20 I think I -- no one's ever toured it. No 21 one's a member of the church. Has anyone 22 ever met a Scientologist and sat around -- 23 okay. 24 You are Miss Ellis. Okay. And did that 25 person become a friend of yours? KANABAY COURT REPORTERS 117 1 PROSPECTIVE JUROR ELLIS: Yeah, a 2 little. 3 MR. DEVLAMING: All right. Did you 4 come. 5 A Away with any feelings about the church or 6 how it operates? 7 PROSPECTIVE JUROR ELLIS: Not really. 8 I mean, I just looked at more -- I didn't 9 really see it as a religion, more as just a 10 philosophy. That's all. 11 MR. DEVLAMING: Okay. All right. But 12 did you come away having any strong feelings 13 one way or the other? 14 PROSPECTIVE JUROR ELLIS: No. 15 MR. DEVLAMING: Were you tried to 16 come -- to take a tour or tried to come into 17 the church or anything like that? 18 PROSPECTIVE JUROR ELLIS: I was asked, 19 but I wasn't interested. 20 MR. DEVLAMING: Okay. All right. Last 21 question. I'm going to assume the answer, 22 but I don't want to assume anything up here. 23 Has anybody ever taken any classes offered 24 by the Church of Scientology? I see no 25 hands. KANABAY COURT REPORTERS 118 1 Does anybody in this courtroom on the 2 prospective panel believe that in real life that 3 somebody cannot be set up? We talked a little 4 about the TV shows where we might see this, but 5 I'm talking real life now. Does anybody on this 6 panel think that in real life a citizen cannot 7 be set up for a crime? All right. 8 Now, I want you to raise your hand if you 9 think that a citizen could be, in real life, set 10 up. All right. Everybody's paying attention 11 then. Everybody that didn't have their hand up 12 before put their hand up now. Okay. 13 Does anybody have any strong feelings about 14 being spied upon or followed in their own 15 private life? Mr. Benjamin? 16 PROSPECTIVE JUROR BENJAMIN: No, sir. 17 MR. DEVLAMING: Okay. Do you feel that 18 as a private citizen that you would be 19 offended if you were found out that you were 20 either spied upon or followed in your daily 21 life without -- 22 PROSPECTIVE JUROR BENJAMIN: I may be, 23 sir. It would depend on the situation I 24 guess. 25 MR. DEVLAMING: All right. KANABAY COURT REPORTERS 119 1 PROSPECTIVE JUROR BENJAMIN: But, no, I 2 wouldn't. 3 MR. DEVLAMING: Does anybody have any 4 strong feelings about that? All right. 5 Miss Janusik, you're nodding your head. 6 PROSPECTIVE JUROR JANUSIK: I wouldn't 7 want to be spied on or followed. It would 8 be very uncomfortable. 9 MR. DEVLAMING: Say you didn't even 10 know about it. In other words, they're not 11 following you beeping the horn. Would your 12 answer still be the same that you wouldn't 13 want people following you your every move? 14 PROSPECTIVE JUROR JANUSIK: Yes, my 15 answer would be the same. 16 MR. DEVLAMING: Okay. I'm sorry. 17 UNIDENTIFIED PROSPECTIVE JUROR: Yes, I 18 would. 19 MR. DEVLAMING: Okay. How about you, 20 Miss Scurlock? How do you feel about that? 21 PROSPECTIVE JUROR SCURLOCK: I feel -- 22 yeah, I don't want anyone following me. 23 MR. DEVLAMING: Okay. How about you, 24 Mr. Marx? 25 PROSPECTIVE JUROR MARX: I think I KANABAY COURT REPORTERS 120 1 would be enjoying it enormously. Sorry. 2 MR. DEVLAMING: You can't use -- 3 that's -- you know what the records says 4 now? You'd enjoy it enormously. Okay? All 5 right. 6 Miss Matthews, how about you? 7 PROSPECTIVE JUROR MATTHEWS: No, I 8 would not like it at all. 9 MR. DEVLAMING: Would you be offended 10 about it? 11 PROSPECTIVE JUROR MATTHEWS: Yes, I 12 think so. 13 MR. DEVLAMING: All right. How about 14 you, Miss Ellis? 15 PROSPECTIVE JUROR ELLIS: I wouldn't 16 like it, no. 17 MR. DEVLAMING: Okay. Miss Tsikos? 18 PROSPECTIVE JUROR TSIKOS: I would not 19 like it. 20 MR. DEVLAMING: Might you report it if 21 you ever found out that this was happening? 22 PROSPECTIVE JUROR TSIKOS: Certainly. 23 MR. DEVLAMING: Would you consider that 24 it bordered on stalking if it continued? 25 PROSPECTIVE JUROR TSIKOS: Certainly. KANABAY COURT REPORTERS 121 1 MR. DEVLAMING: All right. How about 2 you, Mr. Casella? 3 PROSPECTIVE JUROR CASELLA: I used to 4 do it. I was a counter-intelligence special 5 agent, and I did -- I followed people. 6 MR. DEVLAMING: Okay. All right. Do 7 it -- do you still do it? You're retired? 8 PROSPECTIVE JUROR CASELLA: I have 9 PTSD. I don't do much of anything anymore. 10 MR. DEVLAMING: Okay. Well, I got to 11 ask you then, Mr. Casella, this question. 12 There may be some people that testify in 13 this case that do for a living what you did 14 for a living. Will you have any 15 preconceived feelings about them as 16 witnesses? 17 PROSPECTIVE JUROR CASELLA: No, not at 18 all. 19 MR. DEVLAMING: All right. Would you 20 be more prone to accept what they do or be 21 critical of what they do or neither? 22 PROSPECTIVE JUROR CASELLA: I would 23 accept what they do as valid employment. 24 MR. DEVLAMING: Okay. Do you -- do you 25 understand -- well, let me take the shoe off KANABAY COURT REPORTERS 122 1 and put it on the other foot. Do you agree 2 with what this lady said to your right 3 there, that it might be offensive to 4 somebody that would be followed? 5 PROSPECTIVE JUROR CASELLA: It would be 6 offensive to me if someone were to follow 7 me. 8 MR. DEVLAMING: How about you, Mr. 9 Ezell? 10 PROSPECTIVE JUROR EZELL: I've always 11 been told that at any time the government 12 can look at your files or anything. And to 13 me that wouldn't be too much of a bother 14 until it got in-depth to the point to where 15 they were watching your house, watching your 16 phonecalls, and just plain out making a nice 17 little book of what you do day in and day 18 out. 19 MR. DEVLAMING: How about if they went 20 one step further and infiltrated your life 21 actually? Would you be offended? 22 PROSPECTIVE JUROR EZELL: Became a part 23 of your job and stuff, or decided to visit 24 your house while you weren't there? 25 MR. DEVLAMING: No, no. By infiltrated KANABAY COURT REPORTERS 123 1 I mean worked their way into your life as, 2 like, one of your friends but they were not. 3 Would you be offended by that? 4 PROSPECTIVE JUROR EZELL: Yeah. 5 MR. DEVLAMING: Okay. Would anybody 6 not be offended by that? Raise your hand if 7 you would be, if you would be offended when 8 somebody infiltrated your life. All right. 9 Go ahead, yes. 10 Yes, Miss Carter? 11 PROSPECTIVE JUROR CARTER: I agree but 12 I don't agree. I think that I feel like I 13 would be comfortable enough with someone 14 coming into my life. I wouldn't want 15 someone spying on me, but I don't think I'm 16 doing anything that I would feel 17 uncomfortable with if some did come to spy 18 on me and became my friend. I don't think I 19 feel like I'm -- 20 MR. DEVLAMING: You said you would 21 not -- that would not bother you? 22 PROSPECTIVE JUROR CARTER: It would 23 bother me immensely if someone was following 24 me and stalking me, but if they became my 25 friend, it wouldn't -- it would upset me, KANABAY COURT REPORTERS 124 1 but I don't feel like I'm doing anything. 2 MR. DEVLAMING: How about for the sole 3 purpose of telling other people what 4 Miss Carter does every day of her life? 5 PROSPECTIVE JUROR CARTER: Now that 6 would be kind of irritating. But do you see 7 where I'm -- 8 MR. DEVLAMING: I understand. You're 9 starting to draw a line. And it might be 10 that if somebody's your friend, they're your 11 friend, if they came into my life and I 12 really thought they were. But you would 13 want to know what they were doing, wouldn't 14 you, why they did that if they really 15 weren't your friend? What they're up to. 16 PROSPECTIVE JUROR CARTER: Okay. 17 MR. DEVLAMING: I mean, would you? I'm 18 not putting words in your mouth. Would you 19 want to know that? 20 Mr. Backus, would you want to know if 21 somebody came into your life and was reporting 22 to somebody? 23 PROSPECTIVE JUROR BACKUS: (Indicates.) 24 MR. DEVLAMING: You know, I'd like to 25 ask this question because sometimes I get KANABAY COURT REPORTERS 125 1 some different answers about what 2 everybody's job is here today. And Miss 3 Wardell talked a little about her job and 4 that is to present evidence in this case and 5 she represents the State and asks that this 6 man be convicted, and my job is to defend 7 him. 8 Let me -- Miss Matthews, what is your job? 9 What do you perceive your job to be in this 10 case? 11 PROSPECTIVE JUROR MATTHEWS: To listen 12 to the evidence and make a true and honest 13 judgment on the guilt or innocence of the 14 person. 15 MR. DEVLAMING: Okay. I'm going to 16 repeat it because I'm not so sure everybody 17 in the back -- that's all right. And I 18 don't mean -- if I make a mistake, correct 19 me, but to listen to the evidence and make a 20 true and honest decision as to guilt or 21 innocence. 22 PROSPECTIVE JUROR MATTHEWS: Yes, sir. 23 MR. DEVLAMING: Okay. Is that -- raise 24 your hand if you think that sounds like 25 that's just about what your job's going to KANABAY COURT REPORTERS 126 1 be. All right. Put your hands down. And 2 let me tell you something, what you just 3 said or a variation of it is what everybody 4 says. 5 What if I told you that at the conclusion 6 of this case what the judge is going to tell you 7 your job is singularly to listen to the 8 witnesses that the prosecutor calls and 9 determine whether or not they have proven beyond 10 all reasonable doubt the guilt of this citizen? 11 Okay. In other words, he doesn't have to do 12 anything. It isn't a balancing, let's listen to 13 the State, let's listen to the Defense and make 14 the decision. It always stays on the 15 prosecutor's side to remove all reasonable 16 doubt. Can you accept that? 17 PROSPECTIVE JUROR MATTHEWS: Yes, sir. 18 MR. DEVLAMING: Okay. Miss Carter, how 19 about you? Do you understand what I'm 20 saying? It is not a balancing test like it 21 is in civil cases. 22 Mr. Wilson, have you ever sat on a case 23 before? Are you -- what is your name? No. 24 Yes. 25 PROSPECTIVE JUROR WRIGHT: Wright. KANABAY COURT REPORTERS 127 1 MR. DEVLAMING: Mr. Wright. I knew it 2 began with a "W." I didn't know what it 3 was. Have you ever sat on a case before? 4 PROSPECTIVE JUROR WRIGHT: No. 5 MR. DEVLAMING: Has anybody ever sat on 6 a civil case before as a juror? I know I 7 saw something. Were you called? 8 PROSPECTIVE JUROR MATTHEWS: Yes, I sat 9 on a case that settled out of court. 10 MR. DEVLAMING: Okay. Anybody ever sit 11 on a jury on a civil case? I don't see any 12 hands. Do you know there is a difference in 13 the burden of proof between a civil case and 14 a criminal case? Do you all understand 15 that? One has to do with the possible loss 16 of property, the other one the possible loss 17 of freedom? 18 Ms. Bartocci, you're nodding your head. Do 19 you understand that there's a difference? 20 PROSPECTIVE JUROR BARTOCCI: Certainly. 21 MR. DEVLAMING: In a criminal case the 22 burden is higher than it is in a civil case. 23 PROSPECTIVE JUROR BARTOCCI: Yes, I do. 24 MR. DEVLAMING: Do you think it should 25 be higher? KANABAY COURT REPORTERS 128 1 UNIDENTIFIED PROSPECTIVE JUROR: Yes. 2 MR. DEVLAMING: Yeah? Why? 3 UNIDENTIFIED PROSPECTIVE JUROR: Well, 4 she would be trying to prove that this 5 gentleman did something that was against the 6 law. If he's done something that's against 7 the law he's going to lose rights. 8 MR. DEVLAMING: Okay. So you think 9 because something more would be at stake 10 then the loss of property that it should be 11 harder for the government to be able to take 12 your liberty potentially? 13 UNIDENTIFIED PROSPECTIVE JUROR: Well, 14 sure, yes. 15 MR. DEVLAMING: All right. 16 UNIDENTIFIED PROSPECTIVE JUROR: I 17 would hope so. 18 MR. DEVLAMING: Okay. Does anyone have 19 any particular opinion about the burden of 20 proof and whether or not it is fair that the 21 government has to remove all reasonable 22 doubt, whereas in a civil case it's called a 23 preponderance of the evidence? Fifty-one 24 percent is all that is needed in a civil 25 case to win a civil case. KANABAY COURT REPORTERS 129 1 Let's see, is it Miss Dalla Rosa? Okay. 2 What is your feelings about that? Do you think 3 it's too hard? Do you think the government 4 should not have to prove beyond a reasonable 5 doubt the guilt of a citizen? You think it 6 should be a lesser burden? 7 PROSPECTIVE JUROR DALLA ROSA: No, 8 absolutely not. They need to prove it. 9 MR. DEVLAMING: Okay. In other words, 10 a lesser burden might be like in a civil 11 case. The plaintiff goes, the defense goes, 12 and you do one of these, you know, did he 13 run the stop sign, did he not run the stop 14 sign? Fifty-one percent. In a criminal 15 case it always stays on the government's 16 side. Do you think that's correct? 17 PROSPECTIVE JUROR DALLA ROSA: Yes. 18 MR. DEVLAMING: You think that's the 19 way it should be? 20 PROSPECTIVE JUROR DALLA ROSA: Yes. 21 MR. DEVLAMING: All right. I want you 22 to raise your hand if you think that's 23 exactly the way it should be in our country. 24 All right. I want you to raise your hand if 25 you believe beyond and to the exclusion of KANABAY COURT REPORTERS 130 1 every reasonable doubt is the burden that 2 should be present before a person could lose 3 their liberty. I'm not seeing some hands so 4 I'm going to call on you. Okay? 5 You, sir, yes. 6 PROSEPCTIVE JUROR LOVETT: To me I 7 think, you know, you ought to have a fair 8 trial. I mean, be fair. 9 MR. DEVLAMING: Okay. Well, you know 10 what? Basically you are right. That's what 11 we're all asking you to do. As 12 Judge Andrews said, you need to come in with 13 your common sense. But I want to make sure 14 before I sit down that you understand that 15 Mr. Prince doesn't have to prove everything 16 here. The State has to prove guilt. All 17 right? 18 PROSEPCTIVE JUROR LOVETT: Right. 19 MR. DEVLAMING: All right. Will you 20 require him -- let me tell you something, 21 we're going to call witnesses in this case. 22 Don't get me wrong. Okay? But if you're 23 going to require us to -- that we accept the 24 burden of proof, I need you to know that 25 you're requiring me to prove something. KANABAY COURT REPORTERS 131 1 PROSEPCTIVE JUROR LOVETT: No. I think 2 they ought to be able to present their 3 evidence. 4 MR. DEVLAMING: -- to prove him guilty 5 if they can. Okay. 6 Miss Scurlock, how about you? 7 PROSPECTIVE JUROR SCURLOCK: I agree. 8 The same thing. 9 MR. DEVLAMING: How about you, 10 Mr. Backus? 11 PROSPECTIVE JUROR BACKUS: Yes. 12 MR. DEVLAMING: Okay. I'm almost 13 finished. Let me ask you this question, and 14 it has to do about marijuana. You heard 15 this was a marijuana case. And let me do it 16 this way. It might be easier and a little 17 bit faster. I'm going to ask you your 18 feelings about that particular drug. And 19 this is the way I want to ask it, and I'm 20 just going to go right down the old line 21 here. 22 On a scale of one to ten, a zero is it 23 should be just about the lowest drug that can be 24 regulated, you know, maybe a little closer to 25 what Alaska does, give you a parking ticket for KANABAY COURT REPORTERS 132 1 it or what have you. A number ten is it's a bad 2 drug and it should be vigorously enforced, 3 vigorously. Okay? Do you understand? Zero is 4 it's probably one of the most minor drugs; ten, 5 I put it up to a very serious drug. Okay? 6 Mr. Benjamin? 7 PROSPECTIVE JUROR BENJAMIN: I wouldn't 8 call it a serious -- 9 MR. DEVLAMING: No, no, no. Got to do 10 one to ten. That's -- on a zero being it's 11 not that bad a drug or a ten being a real 12 bad drug, where do you fall? 13 PROSPECTIVE JUROR ONDICH: I'll give it 14 a ten. 15 MR. DEVLAMING: That it's a real bad 16 drug? 17 PROSPECTIVE JUROR ONDICH: Yes, sir. 18 MR. DEVLAMING: Okay. All right. Fair 19 enough. 20 PROSPECTIVE JUROR SCURLOCK: Five. 21 MR. DEVLAMING: Five? 22 PROSPECTIVE JUROR MARX: Five. 23 PROSEPCTIVE JUROR LOVETT: Four. 24 MR. DEVLAMING: Four? 25 PROSPECTIVE JUROR MATTHEWS: Ten. KANABAY COURT REPORTERS 133 1 MR. DEVLAMING: Ten? It's your own 2 person -- you know, you can't cheat off your 3 neighbor. This is -- I'm asking you, you 4 know, what you truly feel. 5 PROSPECTIVE JUROR ELLIS: I've done a 6 lot of reports on marijuana. Based on the 7 fact that there's been no reported deaths on 8 it and cigarettes kill millions of people 9 every year, I would rate it a one. 10 MR. DEVLAMING: Okay. All right. 11 Fair. 12 PROSPECTIVE JUROR TSIKOS: Ten. It's a 13 drug. 14 MR. DEVLAMING: Ten. It's a drug. 15 Okay. 16 PROSPECTIVE JUROR JANUSIK: Ten. 17 MR. DEVLAMING: Okay. 18 PROSPECTIVE JUROR CASELLA: That's a 19 personal opinion? 20 MR. DEVLAMING: Just personal. 21 PROSPECTIVE JUROR CASELLA: Two. 22 MR. DEVLAMING: Okay. 23 PROSPECTIVE JUROR EZELL: Based on what 24 you're saying for a zero being it being 25 non -- KANABAY COURT REPORTERS 134 1 MR. DEVLAMING: Yeah, it being the 2 lowest of the drugs, and a ten being a 3 serious, you know -- 4 PROSPECTIVE JUROR EZELL: Me 5 personally, I don't do anything, so I would 6 rate it high for myself, but as to 7 everything else I've heard, maybe a one. 8 MR. DEVLAMING: Okay. 9 PROSPECTIVE JUROR SWONGER: Four. 10 MR. DEVLAMING: Four? 11 PROSPECTIVE JUROR ONDICH: Four. 12 MR. DEVLAMING: Four? 13 PROSPECTIVE JUROR BARTOCCI: Five 14 maybe. 15 MR. DEVLAMING: Okay. 16 PROSPECTIVE JUROR CARTER: Seven. 17 MR. DEVLAMING: All right. 18 PROSPECTIVE JUROR BACKUS: Two. 19 MR. DEVLAMING: Okay. 20 PROSPECTIVE JUROR WILSON: Four. 21 PROSPECTIVE JUROR LANGSTON: Five. 22 PROSPECTIVE JUROR WRIGHT: Four. 23 PROSPECTIVE JUROR HERDMAN: Three. 24 PROSPECTIVE JUROR MOBLEY: I'd say ten. 25 MR. DEVLAMING: Okay. All right. And KANABAY COURT REPORTERS 135 1 incidentally, your answers are not going to 2 get you on this jury and it ain't going to 3 get you off of the jury, so... 4 PROSPECTIVE JUROR DAKE: Five. 5 PROSPECTIVE JUROR OSBORN: Five. 6 PROSPECTIVE JUROR GARRISON: One. 7 PROSPECTIVE JUROR SHEA: Zero. 8 PROSPECTIVE JUROR ROTHSCHILD: One. 9 PROSPECTIVE JUROR LOVELY: Four. 10 PROSPECTIVE JUROR LEPLEY: Ten. 11 PROSPECTIVE JUROR DALLA ROSA: Two. 12 PROSPECTIVE JUROR WICKETT: Four. 13 PROSPECTIVE JUROR MENSCH: Ten. 14 MR. DEVLAMING: Okay. All right. Now 15 you all heard -- you haven't heard any facts 16 in this case. Okay? We're both dying to 17 tell you what the facts are, and you're 18 probably scratching your heads saying what 19 the heck is this all about? How can you 20 take two days to -- when you sit up here 21 we'll be able to tell you all that. 22 Here's the last kicker I'd like to ask. Is 23 there anything you all brought through that door 24 on an individual basis based upon this type of 25 charge that you feel that either Miss Wardell or KANABAY COURT REPORTERS 136 1 I should know about whether you can be fair and 2 impartial on a possession of marijuana case? 3 Run through your lives -- that you haven't 4 already told us. I mean, if you told us at the 5 bench or you've already told us, that's fine. 6 You don't have to repeat anything. But is there 7 anything else that you can feel in that regard? 8 Okay. And this probably -- 9 THE COURT: You have one hand. 10 MR. DEVLAMING: I do have a hand. Yes, 11 sir. 12 PROSPECTIVE JUROR EZELL: When I was 13 growing up, a lot of my friends, or actually 14 one of my friends was into doing marijuana, 15 and when I left Arizona my parents were 16 doing it. My -- since then my father that I 17 know had stopped, and my step-mom I know 18 still does. And that's -- I feel that I 19 have seen that drug, I've been close enough 20 to the drug to smell what it smells like, 21 and if I wanted it all I would have to do is 22 probably go into the room while they weren't 23 home. 24 I have never wanted to do any of those 25 drugs. I don't think I would be unfair as a KANABAY COURT REPORTERS 137 1 jury, but I also think you guys should know 2 that, that I have been close enough to where it 3 would be something that -- not saying it would 4 make me feel not right being sitting over there. 5 MR. DEVLAMING: Okay. One follow-up 6 question, Mr. Ezell. Do you feel that 7 because of that exposure that you would be 8 more prone to favor one side or the other? 9 PROSPECTIVE JUROR EZELL: If a person 10 was using it and -- I don't know how to put 11 that. If a person was using a drug that was 12 illegal and did it to the point to where it 13 was his own personal effect and it stayed 14 with themselves and nothing outside of their 15 own house and no one else knew about it, I 16 would not feel too bad about it. But if it 17 was to where the other people were 18 perceiving it from the person, that's where 19 I would start seeing that's a little bit 20 bad. 21 MR. DEVLAMING: Personal use does not 22 offend you, but distribution or selling it 23 or what have you? 24 PROSPECTIVE JUROR EZELL: Yes. 25 MR. DEVLAMING: Mr. Casella, let me ask KANABAY COURT REPORTERS 138 1 you one question before we adjourn here. I 2 asked you a question or two about your past 3 occupation, that is, that you were in the -- 4 can I call it the surveillance field? I 5 mean, did you do surveillance as well? 6 PROSPECTIVE JUROR CASELLA: Yes, I 7 have. 8 MR. DEVLAMING: Okay. And did you do 9 it for a private agency or the government? 10 PROSPECTIVE JUROR CASELLA: It was Army 11 -- it was for Army counter-intelligence, 12 special agent. 13 MR. DEVLAMING: Okay. So you did it 14 for the government? 15 PROSPECTIVE JUROR CASELLA: Yes. 16 MR. DEVLAMING: Okay. Did you ever do 17 it as a PI or a -- 18 PROSPECTIVE JUROR CASELLA: Yes, I did. 19 MR. DEVLAMING: You did that too? 20 PROSPECTIVE JUROR CASELLA: Yes. 21 MR. DEVLAMING: All right. Do you feel 22 that since we told you a little bit about 23 the fact that you may hear from some 24 witnesses in this case that actively do 25 that, do you feel as if that would affect KANABAY COURT REPORTERS 139 1 your ability to be fair and impartial in 2 deciding their testimony? 3 PROSPECTIVE JUROR CASELLA: No, I don't 4 think it would have any kind of consequences 5 at all as to what I would think. 6 MR. DEVLAMING: All right. Thank you. 7 THE COURT: Are you done? 8 MR. DEVLAMING: Yes, sir. 9 THE COURT: Thank you. Ladies and 10 gentlemen, at this time we are going to take 11 a fifteen-minute recess. After we do that, 12 when you all come back, we will have our 13 panel and we will figure out whether or not 14 they need you for the rest of the day. I 15 don't believe actually they do, so those who 16 are not picked will be released. Let's take 17 fifteen minutes. 18 (A RECESS WAS HAD) 19 (OUTSIDE THE PRESENCE OF THE JURY) 20 THE COURT: Mr. Bunker apparently is 21 down in the media room, which I think I knew 22 he was gonna go to. I didn't realize that 23 was reserved particularly for anybody in 24 particular. Is it -- I don't know, is there 25 some sort of moratorium on the media room KANABAY COURT REPORTERS 140 1 for anybody in particular? 2 MR. SOMMER: Judge, it's just that he 3 is alined with one side in the case, and we 4 are news media, and first off, we're not 5 taking sides, and second off, we have to 6 talk to our editors on the telephone and 7 things like that and you have conversations 8 that you don't necessarily want to share 9 with the general public. That's -- 10 THE COURT: All right. Well, after 11 lunch I'll address it. Not right now. All 12 right? Are you ready, Mr. DeVlaming? 13 MR. DEVLAMING: Yes, sir. 14 THE COURT: All right. Miss Wardell, 15 are you also ready? 16 MS. WARDELL: Yes, your Honor. 17 THE COURT: Let the record reflect that 18 the defendant was present during the entire 19 voir dire, has already consulted with his 20 attorney as to who should serve on this 21 jury. 22 As it relates to challenges for cause, I 23 think we all agree that Mr. Marx, Juror 24 number -- voir dire panelist, rather, number 25 three is cause. Does everybody agree with that? KANABAY COURT REPORTERS 141 1 MS. WARDELL: Yes, sir. 2 THE COURT: State? Defense? 3 MR. DEVLAMING: Correct. 4 THE COURT: Okay. Now, State, do you 5 have any other challenges for cause? 6 MS. WARDELL: Judge, number four and 7 number eighteen both have brothers in the 8 prison system as a result of Pinellas County 9 prosecutions. 10 THE COURT: Yeah. Do you have a 11 response to that, Mr. DeVlaming? 12 MR. DEVLAMING: Sure. I mean, you need 13 to ask whether or not -- that doesn't 14 disqualify them as jurors. They need to ask 15 whether or not it would affect them, and 16 there was no such question, so with an 17 absent record -- 18 THE COURT: Actually I think there was 19 that question and I think the answer was no, 20 so I don't find those gentleman to be cause. 21 Any others, Miss Wardell? 22 MS. WARDELL: No. 23 THE COURT: Mr. DeVlaming, do you have 24 any challenges for cause? 25 MR. DEVLAMING: None for cause. KANABAY COURT REPORTERS 142 1 THE COURT: All right. Now, State, as 2 it relates to jurors number one, two, four, 3 five, six and seven, do you have any 4 challenges? 5 MS. WARDELL: Judge, I would strike 6 number six. 7 THE COURT: All right. State has 8 struck number six. 9 MS. WARDELL: Your Honor? 10 THE COURT: Yes. 11 MS. WARDELL: Do you allow back 12 strikes? 13 THE COURT: The law allows back 14 strikes, so I have no choice in that matter. 15 Six is struck. 16 Now, Mr. DeVlaming, as it relates to one, 17 two, four, five and seven and eight, do you have 18 any challenges? 19 MR. DEVLAMING: We would excuse juror 20 number five. 21 THE COURT: All right. The Defense has 22 used its first challenge. State, as it 23 relates to one, two, four, seven, eight and 24 nine, any challenges? 25 MS. WARDELL: No. KANABAY COURT REPORTERS 143 1 THE COURT: State -- I mean, 2 Mr. DeVlaming, Defense? 3 MR. DEVLAMING: We would excuse juror 4 number eight. 5 THE COURT: The Defense has used a 6 second challenge. State, as it relates to 7 one, two, four, seven, nine and ten, any 8 challenges? 9 MS. WARDELL: Ten. 10 THE COURT: The state has used it 11 second challenge. Defense, as it relates to 12 one, two, four, seven, nine and eleven, any 13 challenges? 14 MR. DEVLAMING: Number seven. 15 THE COURT: The Defense has used its 16 third challenge. 17 State, as it relates to one, two, four, 18 nine, eleven and twelve, any challenges? 19 MS. WARDELL: You said we're up to 20 twelve? 21 THE COURT: We're up to twelve. It is 22 one, two, four, nine, eleven, twelve. 23 MS. WARDELL: One. 24 THE COURT: The State has used its 25 third and final challenge also. So the KANABAY COURT REPORTERS 144 1 panel then is two, nine, eleven, twelve -- 2 hold on. 3 MR. DEVLAMING: No, no. 4 THE COURT: Two, four, nine, eleven, 5 twelve and thirteen. Now, anybody object to 6 or wish to strike Anne Carter, number 7 fourteen, as an alternate? State? 8 MS. WARDELL: I'll accept. 9 THE COURT: Defense? 10 MR. DEVLAMING: We'll strike. 11 THE COURT: Defense has used it's one 12 challenge for the alternate. State, do you 13 wish to strike Mr. Backus as an alternate? 14 MS. WARDELL: Yes, sir. 15 THE COURT: The State has used its one 16 challenge as an alternate. The alternate 17 will be Mark Wilson. I believe we have a 18 panel. What I intend to do is read them, 19 send them to lunch, we'll have an hour, and 20 then after lunch we'll begin with the 21 State's case and opening. Is there anything 22 else? 23 MS. WARDELL: I just want to remind you 24 to give the admonition about the paper again 25 and especially with all the people KANABAY COURT REPORTERS 145 1 circulating. 2 THE COURT: Okay. Now, if I forget to 3 give that admonition before I let them go, 4 remind me to give the admonition. 5 MS. WARDELL: I was trying to -- 6 THE COURT: Please bring them back in. 7 (IN THE PRESENCE OF THE JURY) 8 THE COURT: Okay. When I call your 9 name please come forward. Miss Scurlock, 10 Christopher Lovett, John Casella, 11 Glenn Swonger, John Ondich, Maria Bartocci, 12 Mark Wilson. 13 Ladies and gentlemen, this is our panel. 14 The rest of you are free to leave at this time. 15 We thank you for your willingness to participate 16 in the process on behalf of the State and the 17 Defense and on behalf of all the people of the 18 Sixth Circuit. I also understand that you are 19 not needed for the rest of the day, so you are 20 able to go home. You all should have a good 21 day. 22 THE COURT: Madam Clerk, please swear 23 the panel. 24 (THE PANEL WAS DULY SWORN) 25 THE COURT: Thank you. Please have a KANABAY COURT REPORTERS 146 1 seat. 2 Ladies and gentlemen of the jury, you've 3 been selected and sworn to try the case of the 4 State of Florida versus Mr. Jesse Prince, Jr. 5 This is a criminal case, and the defendant is 6 charged with the crime of possession of 7 marijuana. 8 The definition of the elements of the crime 9 of possession of marijuana will be explained to 10 you later. It is your solemn responsibility to 11 determine if the State has proved it's 12 accusation beyond and to the exclusion of every 13 reasonable doubt against the defendant. 14 Your verdict must be based solely on the 15 evidence, or the lack of evidence, and the law. 16 The information that I read to you is the 17 charging document and is not evidence in this 18 case and it is not to be considered by you as 19 any proof of the defendant's guilt. 20 It is the judge's responsibility to decide 21 which laws apply to this case and to explain 22 those law to you. It is your responsibility to 23 decide what the facts of the case may be, and to 24 apply the law to those facts. Thus, the 25 province of the jury and the province of the KANABAY COURT REPORTERS 147 1 court are well defined, and they do not overlap. 2 This is one of the fundamental principles of our 3 system of justice. 4 Before proceeding further, it will be 5 helpful if you understand how a trial is 6 conducted. 7 At the beginning of the trial the attorneys 8 will have an opportunity, if they wish, to make 9 an opening statement. The opening statement 10 gives the attorneys a chance to tell you what 11 evidence they believe will be presented during 12 the trial. What the lawyers say is not 13 evidence, and you should not consider it as 14 evidence. 15 Following the opening statements, witnesses 16 will be called to testify under oath. They will 17 with examined and cross-examined by the 18 attorneys. Documents and other exhibits may 19 also be produced as evidence. 20 After the evidence has been presented, the 21 attorneys will have the opportunity to make 22 their final arguments. 23 Following the arguments by the attorneys, 24 the Court will instruct you on the law that is 25 applicable to this case. KANABAY COURT REPORTERS 148 1 After the instructions are given, you will 2 then retire to consider your verdict. 3 You should not form any defendant or fixed 4 opinion on the merits of this case until you 5 have heard all the evidence, the arguments of 6 the lawyers and the instructions on the law by 7 the judge. Until that time you should not 8 discuss this case amongst yourselves. 9 During the course of the trial the Court 10 may take recesses, 5during which you will be 11 permitted to separate and go about you personal 12 affairs. During these recesses you will not 13 discuss this case with anyone nor permit anyone 14 to say anything to you or in your presence about 15 this case. If anybody attempts to say anything 16 to you or in your presence about this case, tell 17 them that you are on the jury trying the case 18 and ask them to stop. If they persist, leave 19 them at once and immediately report the matter 20 to the court deputy, who will then advise me. 21 This case must be tried by you only on the 22 evidence presented during the trial in your 23 presence and in the presence of defendant, the 24 attorneys and the judge. Jurors must not 25 conduct any investigation of their own. KANABAY COURT REPORTERS 149 1 Accordingly, you must not visit any of the 2 places described in the evidence. You must not 3 read nor listen to any reports about this case. 4 Further, you must not discuss this case with any 5 person and you must not speak with the 6 attorneys, the witnesses or the defendant about 7 any subject until the deliberations are 8 finished. 9 In every criminal proceeding the defendant 10 has the absolute constitutional right to remain 11 silent. At no time is it the duty of the 12 defendant to prove his innocence. From the 13 exercise of the defendant's right to remain 14 silent, a jury is not permitted to draw any 15 inference of guilt, and the fact that the 16 defendant did not take the witness stand must 17 not influence your verdict in any manner 18 whatsoever. 19 The attorneys are trained in the rules of 20 evidence and trial procedure, and it is their 21 duty to make all objections they feel are 22 proper. When an objection is made you should 23 not speculate on the reason why it is made; 24 likewise, when an objection is sustained, or 25 upheld, by me, you must not speculate on what KANABAY COURT REPORTERS 150 1 might have occurred had the objection not been 2 sustained, nor what the witness might have said 3 had he or she been permitted to answer. 4 Let me reiterate, you can see that there 5 are cameras and folks with photo cameras and 6 reporters and the like that will be around this 7 case. There may be reports on television. 8 There maybe reports in the newspaper tomorrow or 9 later this evening. You are not permitted to 10 listen to any of those reports or to read any of 11 those accounts, nor can you speak to those 12 people at all until these -- this case is done 13 and your deliberations are finished. Does 14 everybody understand that? 15 THE JURY: Yes, sir. 16 THE COURT: At this time we're going to 17 take a lunch break. You, of course, are 18 free to leave the building if you wish. I 19 would prefer that you don't because every 20 now and then something happens, a car breaks 21 down and you can't get back. We do have a 22 cafeteria downstairs. I would ask that you 23 all be back to -- the bailiff will tell you 24 where to go, where to report to by 25 one-twenty. And we shall try and start this KANABAY COURT REPORTERS 151 1 trial promptly again at one twenty-five. 2 Please take the jury out. 3 (OUTSIDE THE PRESENCE OF THE JURY) 4 THE BAILIFF: The jury's out of the 5 hearing of the court, your Honor. 6 THE COURT: I decided that Mr. Bunker, 7 and somebody needs to tell him, is going to 8 have to leave the media room. All right. 9 We're on break until one twenty-five. 10 (LUNCH RECESS WAS HAD) 11 THE COURT: Mr. DeVlaming, 12 Miss Wardell, I had one of our jurors 13 attempt to approach me with a question when 14 I was in the lunch room. I did not allow 15 him to ask me that question, and I told him 16 he would have to raise that issue before 17 everybody so that the Court, if there was 18 something that needed to be answered, we 19 would do that in the presence of everyone 20 here. 21 So it is my intent at this time to bring 22 Mr. Swonger in here so that he can raise 23 whatever question he has. 24 (JUROR SWONGER ENTERED THE COURTROOM) 25 THE COURT: Okay. Wrong one. KANABAY COURT REPORTERS 152 1 JUROR SWONGER: The gentlemen beside me 2 had a couple questions. Is that who you're 3 looking for? 4 THE COURT: Okay. Which one is that? 5 Mr. Ondich? 6 JUROR SWONGER: Whichever one worked at 7 the hospital. 8 THE COURT: Okay. Bring Mr. Ondich in. 9 MR. DEVLAMING: Yes. Mr. Ondich. 10 THE COURT: Is that Mr. Ondich? Okay. 11 MS. WARDELL: He didn't have a lid on 12 that one, Judge. 13 THE COURT: Say again? 14 MS. WARDELL: He didn't have lid. 15 THE COURT: He has to have a lid. It's 16 either a lid or a straw or I'm in trouble if 17 it spills. 18 (JUROR ONDICH ENTERED THE COURTROOM) 19 THE COURT: Mr. Swonger -- I'm sorry, 20 Mr. Ondich. Sir, you had a question you 21 wanted to raise. Is this something that you 22 don't mind the entire -- 23 JUROR ONDICH: No, I don't mind at all. 24 With me working in the medical field in an 25 emergency room, I don't associate with the KANABAY COURT REPORTERS 153 1 cops or the police, but I do see them 2 frequently come in and go out, and I just -- 3 you know, I didn't make that present before. 4 It won't affect any opinion I have or my 5 judgment I have on this or anything like 6 that. But I just wanted you guys to know 7 that with we working in the emergency room I 8 do frequently see a lot of different cops 9 come in and go and things like that. 10 THE COURT: Okay. Did you all have any 11 questions regarding that? 12 MS. WARDELL: No, Judge. 13 MR. DEVLAMING: No, sir. 14 THE COURT: Thank you, Mr. Ondich. 15 Please bring the entire panel back. 16 THE BAILIFF: Bring the entire panel? 17 THE COURT: Uh-uh. He can have a seat 18 at this point. 19 MR. DEVLAMING: Judge, could we -- 20 THE COURT: Come on up. We don't need 21 the court reporter. 22 (WHEREUPON A DISCUSSION WAS HAD OFF THE RECORD) 23 (IN THE PRESENCE OF THE JURY) 24 THE BAILIFF: Your honor, the jury's in 25 the courtroom and seated. KANABAY COURT REPORTERS 154 1 THE COURT: Would counsel approach one 2 more time, please. 3 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 4 THE COURT: I am pointing out to the 5 attorneys at this time that I tend to allow 6 jurors to ask questions. I give them a pad 7 and tell them to write it down and have them 8 bring the question back up here, read it to 9 attorneys, and we decide as a group whether 10 or not this is a question that can or cannot 11 as a matter of law be asked. 12 At this point in time I'm asking whether or 13 not either side has an objection and what that 14 objection would be if such a thing were allowed 15 today. 16 MR. DEVLAMING: Well, the obvious 17 problem, Judge, is that if it's an 18 inappropriate question, how then do you tell 19 the jury? 20 THE COURT: I specifically tell them 21 before that I have decided that this is a 22 question that cannot be asked, so it's 23 always my fault, and I am always the one 24 making that decision. 25 MR. DEVLAMING: Okay. On a KANABAY COURT REPORTERS 155 1 question-by-question basis then? 2 THE COURT: It is a 3 question-by-question basis. I find it makes 4 it a lot easier for me because they don't 5 come back with questions once they go out 6 most of the time because they have already 7 asked all the questions they had. 8 MR. DEVLAMING: And I understand the 9 status of the law is it is discretionary for 10 them to ask questions, and I have no problem 11 with your procedure. 12 MS. WARDELL: You got the note pads? 13 THE COURT: Say again? 14 MS. WARDELL: You got the note pads? 15 THE COURT: I have a note pad. 16 MS. WARDELL: I thought you meant to 17 give each one of them one from the get-go. 18 THE COURT: No. They don't have note 19 pads. They can't take notes. 20 MS. WARDELL: I didn't think so. 21 THE COURT: The only question -- I will 22 send a pad over with a pen if they have a 23 question. Okay? 24 MS. WARDELL: Okay. 25 THE COURT: Okay. KANABAY COURT REPORTERS 156 1 MR. DEVLAMING: No. Wait a minute, I 2 thought -- 3 MS. WARDELL: He thought what I 4 thought. 5 MR. DEVLAMING: Yeah. How do they -- 6 if they are in the middle of listening to a 7 witness, how do they say I need the pad? 8 What do they do? 9 THE COURT: Oh, at the end, before the 10 witness is released. I will explain to them 11 in just a second that before the witness is 12 released I will turn to them and ask if they 13 have questions. If they do, then I will 14 send a pad over. So their questions don't 15 even arise until after you all are done. 16 MS. WARDELL: Right. But we're saying 17 if they think of that question in the middle 18 instead of listening to what's going on, 19 they're going to go don't forget this 20 question, don't forget this question, and 21 not listen to what's going on. 22 THE COURT: They got to hold them or 23 lose them. Okay? 24 MS. WARDELL: Or get distracted. 25 THE COURT: Okay. KANABAY COURT REPORTERS 157 1 (IN THE PRESENCE OF THE JURY) 2 THE COURT: Ladies and gentlemen, we're 3 going to go into the opening statement. Let 4 me tell you before we get started, the law 5 allows me to allow you all to ask questions 6 of the witnesses. Let me tell you how that 7 is going to proceed. 8 I have a note pad here, and I will send the 9 note pad over to you along with a pen to write 10 your question. What will happen is the State 11 will call a witness or the Defense, the witness 12 will have a direct examination, a 13 cross-examination, maybe a redirect and a 14 recross. 15 Once that witness is done testifying, I 16 will then turn to the jury and ask, Do the 17 jurors have any questions? If you have 18 questions, please raise your hand. I will send 19 the note pad over, and then you can please write 20 your question down. 21 At that time I will have the attorneys 22 approach. We will look at the question to 23 determine whether as a matter of law that is a 24 question that can or cannot be asked. 25 If I determine that that is a question that KANABAY COURT REPORTERS 158 1 cannot be asked, I will not allow the question 2 to be asked and I will not also explain to you 3 why the question can't be asked. It just won't 4 be asked. And if it is a question that can be 5 asked, then I will either ask that question 6 myself or I will ask one of the attorneys to ask 7 the witness the question. 8 Does everyone understand? 9 THE JURY: Yes. 10 THE COURT: It is often the occasion 11 that I forget to ask the jurors, Do you have 12 any questions? So if you see a witness 13 stepping down and leaving the witness stand 14 and walking out and you had a question you 15 wanted to ask, raise your hand. 16 The thing I'm asking you not to do is to 17 let the person get out of the door before you 18 raise your hand. If you see them leaving and I 19 have forgot to ask you do you all have 20 questions, please raise your hand. Okay? 21 Counsel for the State prepared to proceed 22 to opening? 23 MS. WARDELL: Yes, your Honor. 24 THE COURT: You may proceed at this 25 time. KANABAY COURT REPORTERS 159 1 MS. WARDELL: May it please the court. 2 Members of the jury, at the end of this 3 trial I'm going to ask you to convict Mr. Prince 4 of possession of marijuana based solely on law 5 enforcement testimony with regards to law 6 enforcement's observation, law enforcement's 7 duties and responsibilities, and evidence that 8 the law enforcement seized in this case. And in 9 order to do that, I'm going to walk you through 10 what I anticipate law enforcement to testify to. 11 Okay? 12 At the end of April of 2000, an informant, 13 an individual, some might call him a snitch, 14 came to Detective Crosby. Detective Crosby has 15 been with Largo for some seventeen years. He's 16 very experienced in narcotics investigation, and 17 this informant came and brought him some 18 information, some information about 19 Jesse Prince. 20 Now, Detective Crosby didn't run out and 21 arrest him and send charges on him based solely 22 on what the informant said. Detective Crosby 23 did what's expected of him, and that was develop 24 his own independent corroboration of the 25 criminal wrongdoing that was alleged against KANABAY COURT REPORTERS 160 1 Jesse Prince, and I'm going to tell you how that 2 happened. 3 On May 7, 2000, one of the dates the judge 4 read to you in the charging document, from May 7 5 law enforcement, Detective Crosby disguised as 6 Mitch, went undercover with this informant to 7 the defendant's home. The informant had already 8 developed a relationship with the defendant, so 9 that it was no big deal for him to bring this 10 officer, albeit undercover, to their home. 11 Once inside the home there was greetings, 12 everything was friendly, it was a very casual 13 atmosphere. They went to the computer room, and 14 Mr. Prince offered Mitch, law enforcement, the 15 informant, some beer. Yeah, everybody had a 16 beer. You know, things were very casual. 17 Well, then Mr. Prince asked if anybody 18 wanted a, quote, smoke. Now Detective Crosby, 19 Mitch, is going tell you that he was kind of 20 taken aback. He was a little surprised. 21 Although he had been told what to expect and 22 things that might occur, he didn't think that 23 topic was going to come up so quickly in this 24 meeting with Mr. Prince, but it did. And in 25 order to maintain his undercover status, he KANABAY COURT REPORTERS 161 1 agreed. And so, sure enough, a joint was 2 produced, and I think actually Mr. Prince's 3 girlfriend brought the joint out. It was lit, 4 it was passed, and Mr. Prince passed the joint 5 to Detective Crosby. 6 Now, during this interaction, the subject 7 of plants came up. The confidential informant 8 had been to the house previously and had seen 9 some things, so the confidential informant 10 brought up, "Hey, how are the plants doing?" 11 And that's when Mr. Prince said, "They're 12 getting bigger, you know, they're doing okay. 13 They're getting bigger." 14 Well, it just so happens that Mr. Prince 15 and his girlfriend had moved into this home at 16 the end of February. It was a new home to them 17 because this is the April/May time frame. And 18 they were proud of this house. It was a very 19 nice house, and the girlfriend, Miss Phillips, 20 wanted to show it off to these folks, and so she 21 took Mitch, law enforcement, on a tour, if you 22 will, of the home. 23 And part of that tour included the back 24 porch pool area. This is a pool that was 25 enclosed by a screen, two screen doors that KANABAY COURT REPORTERS 162 1 come from the outside yard to the pool, and 2 you get to the pool through the living room 3 sliding door. Okay? It's part of the 4 property. It's adjoined. It's attached. 5 And once outside in this pool area 6 Detective Crosby saw with his own two eyes what 7 he recognized absolutely, positively, no doubt 8 about it, to be marijuana plants growing. 9 In fact, he saw approximately four to five. 10 In fact, Mr. Prince joined him in the pool porch 11 area, this enclosed area and even pointed out a 12 couple that Crosby may not have seen, because 13 the way these plants were, they were kind of 14 scattered among other household common plants. 15 Okay? So this is May 7, and this meeting, if 16 you will, ends and law enforcement goes about 17 their business. 18 Now, the next time law enforcement makes 19 contact with Mr. Prince is going to be August 6. 20 That's the other date we're going to be talking 21 about. That's about a three-month time delay, 22 and you might be thinking, well, gee, I wonder 23 why it took the cops three months to make their 24 second visit to do something else? Well, the 25 Detective's going to tell you that he had some KANABAY COURT REPORTERS 163 1 knee surgery, he had some other case, he got 2 busy, he got distracted and, you know, just this 3 was on his list of things to do. 4 So August 6 he goes back to the defendant's 5 home to make another independent corroborative 6 observation of what Mr. Prince was doing. And 7 he stopped by the home along with the informant 8 this time, and the guise, the ruse if you will, 9 was, hey, Mitch, law enforcement, and the 10 informant were on their way out of town to the 11 Keys, and they just wanted to say goodbye and to 12 check and see what was going on. 13 And when they got there Miss Phillips, the 14 girlfriend, was out back in the pool area 15 watering the plants, and Mitch, law enforcement, 16 went out to that area, said hello to her, and 17 again observed, independent of his informant, a 18 marijuana plant growing. It appeared to the 19 officer to be about four or five plants due to 20 the bushiness of it, and it was potted in a pot. 21 And so this visit was pretty short because 22 it was a Sunday morning, and I think they had -- 23 may have woken Mr. Prince out of bed, but 24 ultimately he comes out to the porch and he 25 talks about how that plant needed sunlight and KANABAY COURT REPORTERS 164 1 how it was growing, and I think he even drug it 2 out in the sunlight to get it what it needed. 3 So that's the August 6 visit. 4 This is the second time in three months 5 that law enforcement has actually observed 6 marijuana in the presence of Mr. Prince and 7 observed him acknowledge the plants. Okay? 8 Based on this information, because this plant 9 was in Mr. Prince's home, law enforcement came 10 back and got a warrant, a warrant to search and 11 seize that plant. This was a very limited 12 warrant. 13 When you do a warrant you have to say what 14 it is you want to search for and where it is you 15 think this stuff is. Well, he knew where it 16 was, the porch pool area, and he knew what it 17 was, marijuana. So that's what the warrant 18 directed him to do. A judge signs it and now he 19 can -- law enforcement can go to that house, go 20 into that pool area and seize that plant, and 21 that's exactly what happened on August 11 of 22 2000. That warrant was executed. 23 Now, when a warrant is executed it's not 24 just one officer going and knocked on the door 25 and saying, "May I go in and search?" you know, KANABAY COURT REPORTERS 165 1 "this is what I want to do." What happens is 2 there is a tac team, a tactical team, and 3 everybody has an assigned duty and assigned 4 responsibility. It's a group because law 5 enforcement doesn't necessarily know what 6 they're going to encounter when they get there. 7 Somebody has the job of watching the 8 outside. Somebody has the job of maybe watching 9 the backyard, the side yard. Somebody has the 10 job of going into the home and making sure that 11 the various rooms are clear, if you will. 12 That's a law enforcement term for nobody hiding 13 in the closet or hiding up under the bed. 14 You know, they don't know these folks. 15 They don't know what they're getting into. So 16 there is going to be more than one person 17 because everybody has a responsibility. 18 Somebody has to read the warrant. The law 19 requires that you actually read the warrant to 20 the person before you start the search. 21 Somebody has to do the search. Okay? 22 So there are a lot of duties and a lot of 23 responsibilities, and this team went to 24 Mr. Prince's home early Sunday morning on 25 August 11, and this team secured Mr. Prince. He KANABAY COURT REPORTERS 166 1 was arrested basically for the probable cause 2 from what Crosby had seen a few days prior, and 3 you know, detained and sat there and watched by 4 another officer while they went to the pool area 5 to get the plant and come back out of the house. 6 And like I said, another officer went in to 7 clear the rooms and he was read the warrant. 8 But that's it. That's the case. It's as simple 9 as that. On three separate occasions law 10 enforcement observed marijuana in the home of 11 the defendant, and Mr. Prince acknowledged it. 12 He certainly was aware of it. 13 I'm going to ask you again at the end of 14 this case, based upon those observations, based 15 upon what a seventeen-year veteran of Largo 16 Police Department saw and observed and 17 recognized, I'm going ask you to find him guilty 18 of simple possession of marijuana. 19 THE COURT: Thank you, Miss Wardell. 20 Counsel for the defense wish to make opening 21 at this time? 22 MR. DEVLAMING: I would. 23 THE COURT: You may proceed, sir. 24 MR. DEVLAMING: May I have moment just 25 to set up, Judge? KANABAY COURT REPORTERS 167 1 THE COURT: Okay. 2 MR. DEVLAMING: Judge, is this all 3 right? I know you're not going to be able 4 to see the exhibits -- 5 THE COURT: It's fine with me. 6 MR. DEVLAMING: All right. 7 Members of the jury, the prosecutor opened 8 up her opening statement by saying she was going 9 to ask that you bring back a conviction based 10 upon the law enforcement testimony provided to 11 you in this case. She started out with a date 12 where an undercover confidential informant went 13 to the police, that date beginning in April. 14 We're going to have to back up a little 15 bit, and it's now my opportunity to tell you a 16 little bit about Mr. Prince, about how the 17 Church of Scientology becomes involved in this 18 case, and about how Mr. Prince was worked, 19 stalked, his life, his home and his family 20 invaded by the surreptitious actions of this 21 organization. 22 To do this I need to talk to you about the 23 players and about the hierarchy of what you're 24 going to learn about and about who was involved, 25 and in a minute I'm going to show you a time KANABAY COURT REPORTERS 168 1 line of what was involved. At the top of this 2 hierarchy is the Church of Scientology. 3 You're going to hear from testimony in this 4 case that the Church hires a law firm here in 5 Clearwater, it also has offices in Los Angeles, 6 California, by the name of Moxon and Kobrin. 7 Moxon and Kobrin is going to be testified to 8 hire certain private investigators. They 9 investigate individuals. They investigative 10 critics of the church, and they investigative 11 matters of security. 12 Moxon and Kobrin hired the investigator by 13 the name of Brian Raftery. And you're going to 14 hear his name throughout this trial. He has a 15 son that's also a private investigator. I put 16 the two boxes together, and you're going to hear 17 about how the two of them got together. 18 Also hired another private investigator. 19 So there are three private investigators 20 involved in this case. Actually there is going 21 to be four. Another fellow by the name of 22 Joseph Fabrizio. And approximately the 7th of 23 February of the year 2000, after being hired, 24 Joseph Fabrizio needed to find a black 25 confidential informant, a private investigator. KANABAY COURT REPORTERS 169 1 Someone with a firearms license, someone that 2 could come into this town and not be recognized, 3 someone that they could use to infiltrate this 4 man's life. 5 They found one. They found one in Lake 6 wales, Florida. Licensed to carry a firearm, 7 private investigator, and he's black. On the 8 7th of February what they did is Fabrizio 9 briefed him, told him everything that he could 10 know about Jesse Prince. 11 Jesse was a prior Scientologist in the 70s. 12 He worked his way up to really high in that 13 organization. In the early 1990s Jesse left 14 that particular organization, and when he did, 15 he left with its secrets. He is currently 16 listed as an expert witness in a local case, in 17 a local civil case that's here in town called 18 Lisa McPherson versus the Church of Scientology. 19 And you're going to hear that the reasoning 20 behind what I'm going to tell you they did in 21 this case, was to find any impeachment 22 information, anything they could find on this 23 man in order to convict him of a crime to 24 impeach his credibility in that civil case. 25 So Gaston meets with Fabrizio. Fabrizio KANABAY COURT REPORTERS 170 1 then brings in Raftery, and they have a 2 conversation with him. They arrive at a game 3 plan of what Gaston can do. He's to put himself 4 in the areas of this town so that he could meet 5 with this man, find a way to be able to be 6 friends with him, find a way to get into his 7 life, find a way to get into his home. Time 8 after time they went to local lounges, they went 9 to bars, they waited until the evening hours 10 where they could find Jesse Prince. 11 On February 7, you see that -- excuse 12 me, Gaston was hired. Not -- on almost a 13 daily basis, or I should say on a daily 14 basis, Raftery was following Prince. 15 Sometime during each and every day he was 16 following him. I think his testimony is 17 going to be he was never detected because he 18 is that good of an investigator. 19 But Gaston, time after time, positioned 20 himself from February 7 to April 1 going to 21 lounges, going to bars, going to places that he 22 might be able to find Jesse in a hopes that he 23 would go there. Night after night, report after 24 report, every day he had to write a report where 25 he went, what he saw night after night, and KANABAY COURT REPORTERS 171 1 nothing. 2 Never saw him in a lounge, never saw him in 3 a bar, never saw him doing anything unlawful, 4 unethical, going home to his fiancee, their 5 nine-year-old and their thirteen-year-old, until 6 April 1st. 7 Raftery, Fabrizio, through cell phones 8 said, Jesse's going to Wilson's lounge. He's on 9 his way to Wilson's. Gaston hightails it first 10 to get to Wilson's. He gets himself into -- 11 it's a bar, a liquor place. It has a package 12 store and also a place where you can sit down 13 and have a drink. It's on Belcher Road in north 14 county. 15 Gaston gets in there and he sits at a bar 16 and starts watching television, positions 17 himself so you have to walk by him. He's the 18 only black man in the bar. Jesse walks in with 19 Dee and they are the only African Americans as 20 well. Jesse nods his head, says hello. Gaston 21 says hello. And with a smile, for the first 22 time he began his physical investigation of 23 Jesse Prince. Fourteen days later he hits pay 24 dirt again. 25 Now, he is still surveilling, still going KANABAY COURT REPORTERS 172 1 to lounges, still going to different parts of 2 town, still following him, watching him having 3 dinner on the beach, watching him drive back 4 with his fiancee, following him, looking at him, 5 trying to catch him doing something. Nothing. 6 On the 15th Gaston gets into Jesse Prince's 7 house. He ends up talking to Prince. Prince -- 8 Mr. Prince is a very, very amiable fellow. He 9 says, "I'm new in town." 10 "You get an opportunity, you stop by." 11 And that's exactly what he did. He was -- 12 well, he was invited in the sense he said, "You 13 can stop by on this date." He stopped by. He 14 got himself for the first time into the Prince's 15 home and began to look around. 16 On April 24 of that year Gaston becomes a 17 confidential informant. He goes to the Largo 18 Police Department and he says, "I want law 19 enforcement involved in this. There's a 20 marijuana plant inside Jesse's house. I need a 21 cop to come in and look at it so we can get that 22 man arrested and put him in jail." Never told 23 the police about this impeachment information 24 for this civil case. Never talked to him about 25 what was behind it all. KANABAY COURT REPORTERS 173 1 As the prosecutor said, on May 7, that's 2 when Mr. Crosby and Mr. Gaston also went into 3 the house under a ruse, but they get into the 4 house. They look around. The investigation of 5 Jesse Prince -- now, let me stop right here. 6 This is on May 7 now. All this time has gone 7 by. Law enforcement comes in and they see what 8 they say is some plants. 9 Let me tell you what Jesse says about the 10 plants because he told the law enforcement this. 11 Now, Jesse doesn't know he's being investigated, 12 doesn't know his life is being infiltrated. 13 So these people are talking about 14 marijuana, he's talking about marijuana, and 15 Jesse says to them, "We just bought this house." 16 He and Dee just got into that house in February. 17 He said, "When we got into this house we saw 18 marijuana growing and we pulled it up and these 19 things kept growing right in their place. 20 Now, he doesn't know he's talking to cops. 21 It's not one of these after the facts. He said, 22 "This stuff's growing." At that time he had no 23 idea who would put that stuff in a place that's 24 accessible. You're going to see pictures of his 25 property. You can walk right back onto Jesse's KANABAY COURT REPORTERS 174 1 property. There's a lanai that doesn't lock, 2 and there's some plants that his girlfriend 3 takes well care of, tropical plants and so 4 forth. There was supposedly a plant in among 5 them. 6 The plant was growing out of this dead 7 rubber tree planter. And you're going to 8 see the pictures, and it's as dead as it 9 looked then, it's as dead as it looks now. 10 It was sitting here popping up like that, 11 and Jesse said, "I pulled them out. That 12 grew in it's place." 13 This is the evidence they have in this 14 case. That's the evidence they're going to 15 introduce in this case. Is growing out of this 16 dead rubber tree plant that this man went to law 17 enforcement and had law enforcement brought into 18 his home. 19 Let's just take it from here on May 7. You 20 see the different -- May 7 to August 6, that's 21 three months. Nothing. Every day that man's 22 being surveilled. Every day he is being looked 23 at. Every day the agents of the Church of 24 Scientology are following that man, telling 25 people by cell phones where he is, what he's KANABAY COURT REPORTERS 175 1 doing, what they can expect, where is he on his 2 way to. All have cell phones. 3 All of them are following Jesse Prince. 4 For a 185 days, from the time this started until 5 the time of Mr. Prince's arrest, that, that is 6 what they've got. Looking into that man's life, 7 him not knowing they're looking into his life, 8 that's what it is. 9 Now, members of the jury, you're going to 10 hear the legal definitions of possession. 11 You're going to find out he never touched that 12 plant, he never cultivated that plant, he never 13 fertilized that plant, he never watered that 14 plant. 15 You're going to hear that from the people 16 that were in that house. But the only thing you 17 are going to hear -- let me tell you what we did 18 to Gaston. I'm going to tell you what we did to 19 him. Gaston was a confidential informant. He 20 never thought that we would go back up the 21 ladder. He never thought we'd find out who he 22 was. He was insulated. He was confidential. 23 He was given a number. He was from out of town. 24 By the way, he wasn't Gaston. We all know 25 that, right? Confidential informants use fake KANABAY COURT REPORTERS 176 1 names. His was Rinzy Trinidad. That was his 2 fake name. 3 Prince has no idea who the man was who 4 infiltrated his life. But we hired two 5 investigators. We hired two investigators, and 6 we did a check of the state and found out the 7 black investigators, found out who 8 Rinzy Trinidad may be. 9 We called him up on the phone. I didn't, 10 but the private investigator did and got his 11 answering machine. Said to Jesse, "Listen to 12 the voice on the answering machine." 13 "That's him. That's him." 14 So my two private investigators called him 15 up and said, "Want to hire you for a job," and 16 Mr. Gaston said sure. So he said, "What do you 17 want me to do?" He says, "We want you to sweep 18 a --" I think it's called sweeping a restaurant 19 or what have you. That's when you go in and 20 find out if employees are stealing or what have 21 you. 22 So Gaston says, "Okay. I'll be happy to 23 take the job." So my investigators -- their 24 names are Patterson and Emmons. You're going to 25 be hearing from them too -- they go over -- they KANABAY COURT REPORTERS 177 1 go over to Lake Wales, Florida. That's where 2 Gaston is from, Lake Wales. And they meet in a 3 restaurant over there and ostensibly to hire 4 Mr. Gaston. 5 Jesse's out in the car. Okay? So he 6 can -- you know, so he can identify Gaston. And 7 Mr. Gaston comes in, shakes the hand of 8 Mr. Patterson who is supposedly going to be the 9 person hiring him. Emmons makes the 10 introduction, excuses himself, gets Jesse, Jesse 11 comes in and says -- this is a crowded 12 restaurant so nobody's in any danger. 13 Jesse comes walking around the corner and 14 Gaston goes, "Oh, heck." He realized right then 15 that Jesse knew exactly who he is, figured out 16 that he was going to figure out what he had 17 done, figured out who he was working for, what 18 his orders were and so forth. So they stayed 19 and they talked for forty-five to sixty minutes. 20 There's a rule of confidentiality that 21 Mr. Gaston held pretty close to. He didn't tell 22 them everything about what he was doing. He did 23 admit that he was working for the Church of 24 Scientology, that he was hired by Fabrizio or 25 Raftery I think, and he apologized to Jesse. KANABAY COURT REPORTERS 178 1 He indicated on at least one occasion that 2 he wanted to call Jesse, tell him he was being 3 set up. And he also indicated that he knew that 4 Jesse had removed some of those plants and 5 pulled them out, grew back again. He didn't 6 admit to planting them. I'm not going to tell 7 you that he admitted to that. 8 After forty-five minutes in the bar 9 everybody left. People were cordial. He's 10 going to testify that when they walked outside 11 that he hugged Jesse and Jesse hugged him back 12 and they went on their way. Later he did call 13 Crosby, and didn't know whether he was being set 14 up, and reported the incident to him. 15 By the way, I did leave one person out as I 16 was telling you this and that is this follow by 17 the name of Ben Shaw. You're going to hear 18 Raftery, who was hired by this law firm on 19 behalf of the Church of Scientology, that's the 20 contact with the church. This is the main 21 private investigator, been with them and with 22 the church for years. He's going to tell you 23 that church pays him $187,200 a year to do 24 security. 25 He was required to report to Ben Shaw. KANABAY COURT REPORTERS 179 1 Ben Shaw works for the Office of Special Affairs 2 OSA. OSA is the division of the Church of 3 Scientology that investigates critics. So 4 Raftery was telling Ben Shaw, so that he could 5 go back to the church, what he was doing on a 6 daily basis every single night. Every single 7 night there was report made. We were able to 8 ultimately get those reports from I forgot who 9 it was and learned about the things that I'm 10 telling you. 11 Members of jury, this does not start with 12 law enforcement. It probably ended that way, 13 but this is how we got there. From February 7 14 through the May's, wasn't Jesse's plant, didn't 15 own it, didn't grow, didn't possess it, 16 fingerprints aren't anywhere on it, didn't do 17 anything with it. 18 I'm going to show you about three minutes 19 of this tape, and I'm going to ask you to look 20 up here on the screen for a second. And I'm 21 going to tell you the significance of this. 22 This is where Jesse was arrested, and you're 23 going to see the plant coming out of the house. 24 You will -- this whole tape is a surveillance 25 tape. I'm just going to show you probably about KANABAY COURT REPORTERS 180 1 two, three minutes. 2 It starts and there's really nothing on the 3 beginning, but you will have the opportunity, if 4 you have the desire -- and this is I'm showing 5 to you. 6 (THE VIDEOTAPE WAS PLAYED) 7 MR. DEVLAMING: That's Dee, his 8 fiancee. 9 UNIDENTIFIED SPEAKER: Not now. I'll 10 call you back. 11 (THE VIDEOTAPE WAS STOPPED) 12 MR. DEVLAMING: Now I'll tell you the 13 significance of that tape. That was the 14 actual arrest at Jesse Prince's home after 15 Largo Police Department, through their 16 procedures, six officers showed up, executed 17 the warrant, early morning hours when Jesse 18 was and his wife were sleeping and kids were 19 sleeping. Police came in as they do under 20 the procedure and went through every room. 21 They do that for their own protection to 22 make sure there isn't anybody around. 23 They saw no other marijuana. They saw no 24 paraphernalia. They saw no drying room. That's 25 when you take the marijuana and dry it and so KANABAY COURT REPORTERS 181 1 you can smoke it. They say saw no dried 2 marijuana. They saw nothing else in that house, 3 but on the back lanai, accessible to anybody who 4 would care to bring it, was that bush you saw 5 coming out of that house. 6 The significance of that tape is that 7 police didn't make that tape. Raftery was 8 sitting outside that house. Let me tell you, 9 the police don't tell you when they are going to 10 execute a warrant. They don't tell you. For 11 their own security's sake they never tell you. 12 He was out there for one purpose. When you 13 watch that video being done he zoomed in on 14 Jesse. He had to get something impeachable. He 15 had to get Jesse with bracelets on, brought 16 Deneen when she was crying back -- got her on 17 there. Gaston and his reports even chronical 18 that Deneen went up to Jesse crying and he got 19 every minute of it from across the street. 20 And did you hear that cell phone go off? 21 Did you hear that cell phone? That was 22 Raftery's cell phone. And I don't know if you 23 remember, you heard what he said. He said two 24 words "Not now. Not now." 25 And if you watch this thing, which I'm not KANABAY COURT REPORTERS 182 1 going to bore you with it, but at the very 2 beginning you'll go minute after minute after 3 minute after minute until you'll get as tired as 4 I am of looking at it as he's standing there 5 waiting, waiting for Jesse to come out. 6 If you want to take the time in that jury 7 room, you watch how long he waited to get that 8 footage of what this trial is all about. It 9 ain't about this. It's about that. And it's 10 about that from beginning to end. 11 Betty Davis once said in an old movie, 12 fasten your seat belts, you're in for a rough 13 ride when we start the trial. Thank you. 14 THE COURT: Thank you, Mr. DeVlaming. 15 16 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 17 END OF VOLUME I 18 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 19 20 21 22 23 24 25 KANABAY COURT REPORTERS