183 1 IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA 2 CASE NO. CTC01-00101MMANO-E 3 4 STATE OF FLORIDA ) ) 5 V. ) VOLUME II ) 6 JESSE PRINCE, ) ) 7 Defendant. ) ) 8 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ) 9 PROCEEDINGS: Jury Trial 10 BEFORE: Honorable Michael F. Andrews 11 Judge of the County Court 12 DATE: May 23, 2001 13 PLACE: Division E Criminal Justice Center 14 14250 49th Street North Clearwater, FL 34620 15 REPORTED BY: Jennifer Fleischer, RPR 16 Notary Public - State of Florida 17 18 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 19 KANABAY COURT REPORTERS TAMPA AIRPORT MARRIOTT HOTEL (727) 224-9500 20 ST. PETERSBURG - CLEARWATER (727) 821-3320 21 22 23 24 25 KANABAY COURT REPORTERS 184 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 185 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 186 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 187 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 188 1 P-R-O-C-E-E-D-I-N-G-S C-O-N-T-I-N-U-E-D 2 THE COURT: State, prepared to call 3 your first witness? 4 MS. WARDELL: Thank you, Judge. Judge 5 the State calls Detective Crosby. 6 * * * * * * * * * * * * * * * * * * * * * * * * 7 Whereupon, 8 HOWARD CROSBY, 9 the State's witness herein, being first duly 10 sworn upon oath, was questioned and testifies as 11 follows: 12 THE COURT: Please proceed. 13 MS. WARDELL: Thank you. 14 DIRECT EXAMINATION 15 BY MS. WARDELL: 16 Q If you could please turn to the jury and 17 introduce yourself by stating your name and how you 18 are currently employed. 19 A Howard Crosby. Sergeant. I supervise the 20 afternoon shift parole for Largo Police Department. 21 Q And how long have you been with Largo? 22 A Since 1981. 23 Q Was that all, what, nineteen, twenty years? 24 A Almost. 25 Q And if you could talk to the jury a little KANABAY COURT REPORTERS 189 1 bit about your current duties and responsibilities. 2 A My current duties are to supervise patrol 3 units on afternoon shift. I was previously assigned 4 to the narcotics unit back in 1994. 5 Q How long were you in the narcotics unit? 6 A About six years. 7 Q From 1994 until you took over patrol? 8 A Yes. 9 Q And when did you switch jobs? 10 A I believe it was in September. 11 Q Of 2000? 12 A Yes. 13 Q Okay. And I want to take you back to 14 April of 2000 and have you talk to the jurors about 15 your assignments and responsibilities while a member 16 of the narcotics force. 17 A At that time I was assigned to the county 18 wide narcotics unit. I was also assigned to the high 19 intensive drug trafficking unit over there. I had 20 attended an eighty-hour class at St. Pete Junior 21 College on basic narcotics, and I also attended a 22 four hundred-hour narcotics handler, K-9 handler, 23 class prior to that. From there I went to the drug 24 enforcement administration school, which is an 25 eighty-hour course, and another advanced eighty KANABAY COURT REPORTERS 190 1 hours. 2 Q During this six-year tenure in the 3 narcotics unit, would you use your training or 4 experience in each and every case that you do? 5 A Yes. 6 Q And the more cases you did, the more you 7 learned and the more you became experienced? 8 A Yes. 9 Q And is it fair to say that you have seen 10 various drugs as a matter of routine as part of your 11 job? 12 A Yes. 13 Q Specifically with regards to marijuana, is 14 marijuana something you can recognize on sight? 15 A Yes. 16 Q Both in plant form and in ground up form, 17 if you will? 18 A Yes. 19 Q You've seen it in plant form? 20 A Yes. 21 Q But you've also seen it in it's form where 22 it's ready to be smoked? 23 A Right. 24 Q Are there any other forms that you can talk 25 to the jury about? KANABAY COURT REPORTERS 191 1 A For marijuana? 2 Q Right. 3 A I've seen it in pipes, in marijuana 4 cigarettes, in plants, plant material. 5 Q Lots of ways marijuana can look? 6 A Right. 7 Q And you're familiar with all of them? 8 A Yes. 9 Q Is that a part of your training and 10 experience that allows you to have this familiarity? 11 A Yes, it is. 12 Q Is it common while in the narcotics unit to 13 utilize an informant? 14 A Yes. 15 Q Can you talk to the jury about what an 16 informant is and how it is you come into contact with 17 one and how you turn out utilizing one. 18 A Usually informants come to us. Sometimes 19 we find them. The main use for the informants are to 20 help us gain access to the drug dealers or people 21 possessing narcotics. What we normally use them for 22 is either to do the buys for us, to get us actually 23 introduced to people. 24 Q They're the go-between, if you will? 25 A Yes. KANABAY COURT REPORTERS 192 1 Q In this particular case with regards to 2 Jesse Prince, was a confidential informant utilized? 3 A Yes, he was. 4 Q Okay. Was that informant actually assigned 5 a specific number? 6 A Yes. 7 Q Is that just routine policy so you can keep 8 track of who's who? 9 A That's so when we write the reports we can 10 refer to the informant as a number and not as their 11 name. 12 Q That's for the protection of the informant? 13 A Right. 14 Q And that's common and routine to do that? 15 A Very. 16 Q And in this particular case, do you recall 17 the number that was assigned to this informant? 18 A The number was 273. 19 Q And was there actually a fake name that 20 went along with NO. 273? 21 A Well, the informant had -- his name was 22 Trinidad. 23 Q Do you recall the first name that he used? 24 A Rinzy. 25 Q And that wasn't his real name? KANABAY COURT REPORTERS 193 1 A No. 2 Q That was a stage name for the 3 investigation? 4 A Correct. 5 Q And that name came to you, you didn't 6 create that name? 7 A No, I didn't. 8 Q He was already using that when he came to 9 you? 10 A Yes. 11 Q Okay. Now, is there a certain 12 conversation, if you will, that you're going to have 13 with an informant before you as law enforcement would 14 utilize one? 15 A Yes. After we debrief the informants, find 16 out what information they have, we go over the basic 17 rules of what they're to do, what they're not to do. 18 What it comes down to is they act with us. They 19 don't act on their own, and they don't go off without 20 us being there. 21 Q Basically it's your game, and they're 22 supposed to play by your rules? 23 A Exactly. 24 Q And you tell these rules up front? 25 A Yes. KANABAY COURT REPORTERS 194 1 Q And you hope that they follow these rules? 2 A Right. 3 MS. WARDELL: Judge, may I approach the 4 witness? 5 THE COURT: You may. 6 BY MS. WARDELL: 7 Q I'm showing you what's been previously 8 marked as State's Exhibit NO. 1 for identification 9 purposes, and I would ask you to take a look at it 10 and tell me whether or not you recognize what that 11 is. 12 A This is a CI form that's labeled 13 "Investigative Assistance Agreement." We go over 14 each statement and have the informant sign and sign 15 the bottom and eyewitness the signature. It gives 16 the rules. 17 Q I'm sorry. That's the actual form that was 18 used in this case as relates to CI NO 273. 19 A 273? 20 A Correct. 21 Q And that would be the informant's initials 22 next to each rule that's outlined to him? 23 A Yes. 24 Q And you were present when he went over that 25 form? KANABAY COURT REPORTERS 195 1 A I went over the form with him. 2 Q Okay. Even better. And you kept that form 3 in a business records that's maintained down in Largo 4 Police Department? 5 A Well, this goes into the CI file and it's 6 kept under lock and key. 7 Q And although that's an original -- I mean, 8 excuse me, that's a copy, there's an original that's 9 going to be maintained in Largo's files? 10 A Right. 11 MS. WARDELL: Judge, at this point I 12 would introduce State's Exhibit NO. 1 into 13 evidence. 14 THE COURT: Any objection? 15 MR. DEVLAMING: None. 16 THE COURT: It will be received. 17 MS. WARDELL: Permission to just 18 briefly publish to the jury? 19 THE COURT: Okay. Publish. 20 BY MS. WARDELL: 21 Q And do you recall the date that you met 22 with this informant and assigned him this number? 23 A It's written on bottom. It's 4/24/2000. 24 Q Now, as part of the debriefing that you 25 mentioned, is that basically when the CI tells you KANABAY COURT REPORTERS 196 1 what he already knows so that you'll kind of know 2 what you're fixing to get into? 3 A Correct. 4 Q And was there actually specifically a 5 prearranged date and location that you knew it was 6 okay for you to go to the defendant's house along 7 with the CI? 8 A After talking to the informant, he told me 9 that specific date that he was invited over to the 10 defendant's house. 11 Q And you were to tag along? 12 A That he was going to bring a friend, which 13 would be me. 14 Q And tell the jury what your story, if you 15 will, was. In other words, who were you to be when 16 you got to his house? 17 A I was the informant's friend from up north, 18 and the informant became friends with Mr. Prince and 19 said that he was going bring his, which is me, friend 20 over to his house, so -- since I'm down from up 21 north. 22 Q So Mr. Prince was aware ahead of time that 23 Mitch, or whoever you were, was going to come to his 24 home? 25 A I assume so. The informant told me that he KANABAY COURT REPORTERS 197 1 knew a friend was coming. 2 Q And what was your name in this scenario? 3 A Mitch. 4 Q Mitch. Okay. Did you actually respond to 5 Mr. Prince's home? 6 A Yes. 7 Q Speaking of Mr. Prince, do you see him in 8 the courtroom today? 9 A Yes, I do. 10 Q Could you please point to him and describe 11 an article of clothing? 12 A He's sitting right over there with a dark 13 suit and white shirt on. 14 MR. DEVLAMING: Judge, we'll stipulate 15 to the identity of Mr. Prince to my right. 16 THE COURT: So stipulated. 17 BY MS. WARDELL: 18 Q So the few times that I've said the 19 defendant or Mr. Prince, that's to whom you're 20 referring? 21 A Yes, ma'am. 22 Q And did you actually respond to his 23 residence? 24 A Yes, we did. 25 Q And do you recall where? KANABAY COURT REPORTERS 198 1 A 1949 Belleair Road. 2 Q What city? 3 A That's Largo, Clearwater mailing address. 4 Q In what county? 5 A Pinellas. 6 Q Could you speak up a little bit louder? 7 I'm having a hard time hearing you. 8 And would this have been your first 9 personal contact with Mr. Prince? 10 A Yes, it was. 11 Q Could you take a minute and describe to the 12 jury what happened as you approached the door and 13 what happened once inside? 14 A Both the CI and I, we drove over to 15 Mr. Prince's residence and went to his front door and 16 knocked on the door. The -- a black female answered 17 the door, who was later identified as Deneen 18 Phillips, and let us inside the house. 19 Q Were you introduced to Mr. Prince? 20 A Yes. 21 Q And how so? 22 A The CI introduced me as Mitch, and we went 23 into the room to the left of the door. 24 Q Would that have been the computer room? 25 A Well, there was a computer in the room, KANABAY COURT REPORTERS 199 1 yes. 2 Q Okay. And tell us what happened inside 3 that room. 4 A Inside the room Mr. Prince was working on a 5 computer. We sat down, had a conversation. He asked 6 us if we wanted a beer. We said yes. He went up and 7 got us each a beer, himself and Miss Phillips a beer. 8 We continued to talk, and he then asked us if we 9 wanted to smoke, and we said yes. 10 Q You said he asked if you wanted a, quote, 11 smoke. What did you take that to mean? 12 A Smoking cannabis. 13 Q Marijuana? 14 A Marijuana. 15 Q Not a cigarette? 16 A No. 17 Q And were you somewhat surprised or taken 18 aback, if you will, that that was mentioned so soon 19 in that context? 20 A Yes, because it was my first time even 21 meeting him. I didn't think that we would get that 22 far that quick. 23 Q And it was Mr. Prince that used the words 24 "a smoke" first? 25 A Yes. KANABAY COURT REPORTERS 200 1 Q So the first mention of marijuana at this 2 visit comes from Mr. Prince's mouth, correct? 3 A Correct. 4 Q And did you agree to a smoke? 5 A Yes, we did. 6 Q And why did you agree to that? 7 A To maintain my undercover status. 8 Q And to state the obvious, you weren't 9 dressed in uniform, were you? 10 A No, I was not. 11 Q How were you dressed? 12 A I believe I was in shorts and a T-shirt. 13 Q Casual clothes? 14 A Yes. 15 Q Was marijuana actually produced? 16 A Yes, it was. 17 Q How so? 18 A Miss Phillips rolled a cigarette, a 19 marijuana cigarette, lit the cigarette and passed it 20 to Mr. Prince. Mr. Prince then passed it to me, and 21 I passed it to the informant, and it went back to 22 Miss Phillips again. 23 Q On May 7th of 2000, you personally observed 24 Mr. Prince in possession of a marijuana cigarette? 25 A Yes. KANABAY COURT REPORTERS 201 1 Q Did you recognize that marijuana cigarette 2 to be that? 3 A That and the odor. 4 Q You recognized the odor? 5 A Yes. 6 Q You're familiar with the odor of a 7 marijuana cigarette? 8 A Yes. 9 Q Is there any doubt in your mind that what 10 was passed that day in that room was a marijuana 11 cigarette? 12 A No doubt. 13 Q And is there something called simulation in 14 the field of uncover work? 15 A Yes, there is. 16 Q Could you tell the jury what that means? 17 A Where we actually don't smoke the 18 cigarette. We simulate smoking the cigarette. And 19 then I passed it to the informant. 20 Q Did those around you close to you think you 21 were smoking it but you have a technique to where 22 you're not? 23 A That's correct. 24 Q And was it Mr. Prince personally who handed 25 you the joint? KANABAY COURT REPORTERS 202 1 A Yes, he did. 2 Q Now, during this joint passing, if you 3 will, did the conversation of plants come up? 4 A The -- when Miss Phillips left the room to 5 get the marijuana -- 6 THE COURT: I'm -- hold up for one 7 second. Can you all here okay? Is there 8 anybody who's having any trouble hearing? 9 Okay. Thank you. Please proceed. 10 THE WITNESS: When she went to the get 11 the marijuana, we -- Mr. Prince stayed in 12 the room with us, so it was the three of us 13 in the room together and the topic of 14 marijuana plants came up, and he said that 15 they were growing and they're getting 16 bigger. And Miss Phillips overheard that 17 conversation when she came back. 18 BY MS. WARDELL: 19 Q Was there any conversation with regards to 20 whether the children in the home knew of the presence 21 of the marijuana plants? 22 MR. DEVLAMING: Objection unless she 23 lays a predicate by the client and not by 24 another hearsay source. 25 THE COURT: I'll sustain the objection. KANABAY COURT REPORTERS 203 1 MS. WARDELL: As to that reason? 2 THE COURT: You need to lay the 3 predicate as who it is that's going to be 4 answering -- who you're talking about as it 5 relates to the conversation. 6 BY MS. WARDELL: 7 Q During the course of the conversation, was 8 a comment made with regards to whether the children 9 knew of the presence of the marijuana? 10 MR. DEVLAMING: Objection. Same 11 objection, Judge. 12 THE COURT: Comment by whom? 13 MS. WARDELL: Well, first I need to lay 14 the comment, then by whom. 15 THE COURT: Okay. 16 BY MS. WARDELL: 17 Q Was, in fact, a comment made? 18 A Yes. 19 Q And who, in fact, made it? 20 A Deneen Phillips. 21 MR. DEVLAMING: Objection, same. 22 THE COURT: Sustained. 23 BY MS. WARDELL: 24 Q Did Mr. Prince brag about the marijuana 25 plants getting bigger? KANABAY COURT REPORTERS 204 1 A Yes, he did. 2 Q Did this indicate to you that he had 3 knowledge that marijuana plants existed on his 4 property? 5 A Yes. 6 Q Did he also brag the marijuana plants were, 7 quote, doing fine? 8 A Yes, he did. 9 Q And did this also indicate to you he had 10 knowledge that marijuana plants were on his property? 11 A Yes. 12 Q Did there come a point in time when you 13 were shown around the residence? 14 A Yes, we were given a tour of the house. 15 Q Were you aware that the Princes -- excuse 16 me, Mr. Prince and Miss Phillips had moved into this 17 home in the late part of February? 18 A That's what I -- I wasn't for sure, but 19 that's what I had heard. 20 Q It was a new house to them? 21 A Right. 22 Q And so talk to the jury, please, about 23 being shown around and where you went. 24 A Miss Phillips gave us a tour of the house, 25 walked us through the whole house showing us the KANABAY COURT REPORTERS 205 1 different bedrooms, and we went out to the back porch 2 area, which is a pool area, a large pool area that's 3 enclosed by a screen. 4 Q And how do you enter into the pool area 5 from the home? 6 A We went through the kitchen and then out 7 some sliding glass doors. 8 Q Sliding glass doors from a kitchen area? 9 A Kitchen/living room area. It was an open 10 area. 11 Q There's more than one way to get to the 12 pool from the inside of the house? 13 A I believe so. We went through the same 14 area. 15 Q So once into the pool area, what did you 16 observe? 17 A The -- there were several pots with 18 marijuana plants in the pots, planters. 19 Q And tell us how it was you were able to 20 recognize these plants as marijuana plants. 21 A Miss Phillips pointed the marijuana plants 22 out to me, and, of course, I recognized them as being 23 marijuana plants. And she pointed out about five -- 24 about five different areas where the plants were, 25 when Mr. Prince came out and pointed an additional KANABAY COURT REPORTERS 206 1 one out that was smaller to me. 2 Q And Mr. Prince personally pointed out one 3 another marijuana plant to you? 4 A Yes. 5 Q Did this indicate to you that he had 6 knowledge that marijuana plants were on his property? 7 A Yes. 8 Q And were they basically in arms reach of 9 Mr. Prince? 10 A Well, they were in the enclosed area of 11 the -- of his back porch. 12 Q And while walking around and pointing them 13 out, they were within arms distance? 14 A Right. Well, yes. 15 Q Now, was there a conversation about how to 16 keep the plants healthy? 17 A I asked Miss Phillips how to keep the 18 plants healthy. She said -- 19 MR. DEVLAMING: Objection, Judge. 20 Hearsay. 21 THE COURT: Did you wish to respond to 22 that objection? 23 MS. WARDELL: It's going to be a 24 statement that's against interest of the 25 defendant. KANABAY COURT REPORTERS 207 1 THE COURT: Overruled. Well -- 2 MS. WARDELL: And as corroborated, if 3 necessary, by the other party. 4 THE COURT: Okay. You said a statement 5 against the interest of the defendant. I'll 6 overrule the objection on statement against 7 interest. Proceed. 8 BY MS. WARDELL: 9 Q I'll reask it this way. Was there an 10 indication in that conversation that Mr. Prince 11 participated in keeping those plants healthy by 12 watering them? 13 MR. DEVLAMING: Objection, Judge. We 14 need the predicate as to who's making these 15 statements. I need to cross-examine the 16 declarant. 17 MS. WARDELL: I'll produce the 18 declarant to tie it up. 19 THE COURT: Please do. Sustained. 20 Please lay the predicate. 21 MS. WARDELL: Well, I'm -- 22 THE COURT: Approach the bench. 23 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 24 THE COURT: What I am going to ask you 25 to do, and this is what Mr. DeVlaming is KANABAY COURT REPORTERS 208 1 objecting to, is that you -- I guess I 2 understand what you're doing. You're just 3 asking was there a statement, and then after 4 that you are going to ask who made the 5 statement. Is that it? 6 MS. WARDELL: Yeah. And well, the 7 statements are coming from the girlfriend, 8 and I'll bring in the girlfriend to say the 9 same ones. 10 THE COURT: See, the thing I'm trying 11 to figure out is and the reason I keep 12 getting tossed off is you keep asking was 13 there any statement, but it's obviously an 14 objectionable statement unless there is a 15 exception to the hearsay rule if 16 Miss Phillips made the statement. 17 MS. WARDELL: Right. 18 THE COURT: But it's not an 19 objectionable statement. It is an admission 20 if the defendant made it. So what 21 Mr. DeVlaming is objecting to is your 22 failure to establish who made the statement 23 before you ask the question. 24 And what I get confused about, and I think 25 I have to sustain the objection, is that you KANABAY COURT REPORTERS 209 1 haven't laid the predicate as to did 2 Mr. so-and-so make a statement regarding this? 3 What was that statement? 4 MS. WARDELL: Okay. All right. 5 Because my thinking is that Miss Phillips, 6 when I call her, made deny making that 7 statement. So I need to ask this officer 8 now did she say it. I guess I'm bringing 9 the cart before the horse. 10 THE COURT: You are. 11 MS. WARDELL: But the bottom line is in 12 opening statement Mr. DeVlaming gave an 13 entire hearsay conversation at that lunch. 14 I mean, are you going -- are the same rules 15 going to apply that now nothing that was 16 said at that lunch is going to come in? 17 THE COURT: Unless you object, how can 18 I rule on it? 19 MS. WARDELL: Well, you know, I think, 20 you know -- 21 MR. DEVLAMING: Well, what you need to 22 do -- here's the thing, if -- you know 23 Miss Phillips can be making here a statement 24 against interest. I mean, you've said that 25 and I overruled the objection when you said KANABAY COURT REPORTERS 210 1 that. But you still have to lay the 2 predicate before -- 3 MS. WARDELL: All right. Then I'll do 4 it the other way because Miss Phillips' 5 statement against interest would go against 6 this defendant because they were 7 cohabitating in the house. 8 THE COURT: It's a statement against 9 interest. It doesn't have to do with who 10 the defendant is. As long as it's against 11 pecuniary interest, it comes in. 12 MS. WARDELL: All right. 13 THE COURT: Overruled. 14 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 15 THE COURT: Please proceed. 16 MS. WARDELL: Thank you. 17 BY MS. WARDELL: 18 Q You mentioned Miss Phillips earlier, and 19 what was your understanding of her relationship to 20 the defendant? 21 A She was living with him. 22 Q As a girlfriend or a fiancee? 23 A Girlfriend, fiancee. 24 Q Did Miss Phillips make statements to you on 25 the pool patio area with regards to how to keep those KANABAY COURT REPORTERS 211 1 plants? 2 MR. DEVLAMING: Objection. Hearsay. 3 THE COURT: And your response would be? 4 MS. WARDELL: Statement against 5 interest. 6 THE COURT: Overruled. 7 THE WITNESS: Yes. When she was asked 8 she said that, her and Jesse, it does not 9 take much to grow these plants and that they 10 just need water and sunlight. 11 BY MS. WARDELL: 12 Q But that she and Jesse -- 13 A She and Jesse. 14 Q -- kept them healthy? 15 A Correct. 16 Q Do you recall what time you left 17 Mr. Prince's home? 18 A 1658 hours. 19 Q When is your next involvement with 20 Mr. Prince in this investigation? 21 A The August, August 6. 22 Q And can you tell the jury the reason for 23 the time lapse between May 7 and August 6? 24 A The time lapse was I had other cases going. 25 I believe I was even out on knee surgery also, so KANABAY COURT REPORTERS 212 1 that's why there was a time lapse. 2 Q This wasn't your only investigation? 3 A No. 4 Q This was just one of the many that you were 5 doing? 6 A Yes. 7 Q And on August 6 did you actually meet with 8 the confidential informant, the same one, 273? 9 A Yes, we did. We met at the police 10 department. 11 Q And was there already, as far as you knew, 12 a prearranged meeting or stopping by? 13 A We were going to stop by because we were 14 going on a trip. 15 Q Mr. Prince -- 16 A -- to say good bye. 17 Q Okay. And did you, in fact, do that? 18 A Yes. 19 Q And where did you respond? 20 A 1949 Belleair Road. 21 Q Do you recall what time you got there? 22 A At 10:53 a.m. 23 Q And who opened the door? 24 A At first a child opened the door, and then 25 Mr. Prince came right up after behind the child. KANABAY COURT REPORTERS 213 1 Q And what did you see when you got inside? 2 A Mr. Prince let us inside, and we went into 3 an area like a living room type area. 4 Q And from there where did you go? 5 A I saw Miss Phillips on the back porch 6 watering the plants. They had all other types of 7 plants on the back porch. And we asked if we could 8 go back out there and say hi to her. 9 Q And did you? 10 A Yes. 11 Q When you got to the screened-in area, the 12 pool area, what did you see? 13 A When I got to the pool area, we made 14 contact with Miss Phillips, talked to her, and then 15 Mr. Prince came out to us. 16 Q And when he came out, was there a reason 17 for his coming out? 18 A To talk to us. 19 Q Did he show you anything? 20 A Yes. He pointed out a pot with a small 21 plant, marijuana plant, in it. 22 Q Did you recognize it to be marijuana? 23 A Yes. 24 Q Approximately how tall was that plant? 25 A About a foot or two. Tall? Is that what KANABAY COURT REPORTERS 214 1 you said? 2 Q Yeah. How tall? If you need to refer to 3 your report -- well, let me ask this: Did you make a 4 report back when this was fresh in your mind? 5 A Yes. 6 Q Back in the -- for the first instance, the 7 May time frame, and now the August time frame? 8 A Yes, I did. 9 Q Is that because you never know when you're 10 going to get asked questions about it and it's tough 11 to remember what you did? 12 A That's true. 13 Q If you need to refer to your report at any 14 point for a specific, that's fine. Did you document 15 in your report how tall the plants were? 16 A I said in the southwest area of the 17 screened-in pool that it was approximately two to 18 three -- 19 MR. DEVLAMING: Judge, I'm going to 20 object to the reading of the report that's 21 not in evidence. 22 THE COURT: Sustained. 23 BY MS. WARDELL: 24 Q Take a minute and read it, and then once 25 your memory is refreshed, you can look up and KANABAY COURT REPORTERS 215 1 testify. 2 A About two to three feet high. Also he told 3 me he had just previously, about a month ago, pulled 4 out about fifteen other marijuana plants, and that 5 this one was -- came up, started growing on it's own, 6 and all you need to do was basically give it water 7 and sunlight and that it will grow, and that he 8 needed -- he needed more sunlight so he was going to 9 pull it out into the sun. 10 Q And he actually talked to you about how to 11 help the plant grow? 12 A Yes. 13 Q And he actually pointed that plant out to 14 you? 15 A Yes. 16 Q And did it appear to be more than one plant 17 when you saw it did? 18 A It was bushy. To me it looked like two or 19 three plants, but I didn't get close enough to see 20 the actual stalk. 21 Q The stick part of it? 22 A Right. 23 Q Okay. And you had mentioned the southwest 24 corner. Can you tell us, coming from the house out 25 to the pool, would that be to the right? KANABAY COURT REPORTERS 216 1 A To the right. 2 Q Or to the left? 3 A As you walk in from the house on the pool 4 area, it would be over to your right. 5 Q By a screen door? 6 A Yes, there is a screen door there. 7 Q Do you recall him stating, quote, let 'em 8 grow? 9 A That he was letting them grow, yes. 10 Q Did he actually talk to you about how easy 11 it was to maintain these plants? 12 A That they would grow on their own. All 13 they needed was sun and water. 14 Q Based upon your personal observations of 15 August 6th of 2000, did you assist in drafting a 16 warrant in this case? 17 A Yes, I did, for cultivation of cannabis. 18 Q And have you actually assisted in the 19 drafting of other warrants? 20 A Yes. 21 Q Do you have experience in writing warrants? 22 A Yes. 23 Q And, in this particular case, were you the 24 affiant? 25 A Yes, I was. KANABAY COURT REPORTERS 217 1 Q And that is the person that made the 2 observations and signed you name at the bottom? 3 A Right. 4 Q And took it to the judge and the judge 5 signed it? 6 A Yes. 7 Q Now, this warrant had a very limited 8 purpose, correct? 9 A Correct. 10 Q What was it you were asking to search for? 11 A For marijuana plants. 12 Q Where? 13 A Back porch. 14 Q Of this particular residence? 15 A Of 1949 Belleair Road. 16 Q And more specifically in the screened porch 17 area? 18 A The back porch, yes, screened-in pool area. 19 Q Were you actually present when the warrant 20 was executed? 21 A Yes, I was there. I didn't go inside the 22 house. 23 Q Is that a safety reason? 24 A Yeah. Because I was still undercover at 25 the time, so what I did is I drove the van and I went KANABAY COURT REPORTERS 218 1 to the side of the house, but once they made contact, 2 I went back and I did not participate in the warrant 3 at all. 4 Q You didn't want to blow you cover? 5 A Right. 6 Q Is it protocol for a tactical team to come 7 in and actually execute the warrant? 8 A Yes. All the warrants in Largo the 9 tactical team serves the warrants. 10 Q Prior to them entering the home in 11 furtherance of the warrant, had you communicated to 12 them the observations you made on August 6? 13 A Yes. Once I get the warrant, we have a 14 briefing with a tactical team. I tell them who the 15 person is, I show them pictures, and then tell them 16 what the warrant's for. I actually give the person 17 who's going to read the warrant to him, and then the 18 tactical commander goes over the tactics on how to 19 approach the house. 20 Q So they knew they were to go to the pool 21 area and look in that specific location? 22 A Right. 23 Q Now, what's the purpose in bringing an 24 entire team in? 25 A For safety and security and officer safety. KANABAY COURT REPORTERS 219 1 When you're going in someone's home, you bring as 2 many people as you can. We don't know how they're 3 going to act once we get there. 4 Q Do different officers have different 5 assignments? 6 A Yes. The main officers are going in for 7 security to handcuff the suspect, and anyone else 8 inside the residence, they're there to secure them, 9 and then we have a search team that goes in also. 10 MS. WARDELL: Judge, I don't have 11 anything further. 12 THE COURT: Okay. Before we go into 13 cross-examination, how are you all feeling? 14 Do you all need a break or can we proceed? 15 I got a break. Okay. We're going to take 16 about a fifteen-minute break at this point 17 in time, and we'll proceed right after that. 18 Okay? 19 (OUTSIDE THE PRESENCE OF THE JURY) 20 MS. WARDELL: Judge, may Mr. DeVlaming 21 and I approach? 22 THE COURT: Sure. You all come on up. 23 MS. WARDELL: We don't need the court 24 reporter. 25 (A DISCUSSION WAS HAD OFF THE RECORD) KANABAY COURT REPORTERS 220 1 (A RECESS WAS HAD) 2 THE COURT: I promise we won't start 3 without him. Somebody look out there and 4 see if he is outside. Please bring the jury 5 back. 6 THE BAILIFF: Sure. 7 MR. DEVLAMING: Your Honor, since the 8 jury is not in here, I just want to put on 9 the record that Miss Wardell and I have an 10 agreement that we'll not release any 11 witnesses without consulting each other. 12 I have had Miss Phillips available. I will 13 not release her unless Miss Wardell tells me 14 that -- I subpoenaed Officer Crosby. It's 15 possible I might have to call him back. 16 THE COURT: Okay. 17 (IN THE PRESENCE OF THE JURY) 18 THE COURT: Your Honor, the jury is in 19 the courtroom and seated. 20 THE BAILIFF: All right. 21 Mr. DeVlaming, sir, are you at this time 22 able to proceed to cross? 23 MR. DEVLAMING: Thank you. 24 CROSS-EXAMINATION 25 BY MR. DEVLAMING: KANABAY COURT REPORTERS 221 1 Q Detective Crosby, do you remember when you 2 first received information concerning this 3 investigation? 4 A Not the date, no, I don't. 5 Q Well, would it have been on or about the 6 24th of April when this man was made a CI, or would 7 it have been quite a bit before that? 8 A No. He was made a CI on the 24. 9 Q Right. When did you first become involved 10 that there was an investigation or information on -- 11 A That's the date that I'm not sure about. 12 It was probably a week, maybe two, before then. 13 Q Okay. And who called you? 14 A Brian Raftery -- Raferty. 15 Q Raftery? 16 A Raftery. 17 Q Okay. And on the basis of your call from 18 Raftery, you met with Gaston? 19 A Yes, sir. 20 Q You ultimately met with Gaston? 21 A Yes, sir. 22 Q Now, did either Raftery or Gaston discuss 23 with you what happened from February 7 until right 24 around April 24 or a week before April 24? Did they 25 say what they had been doing? KANABAY COURT REPORTERS 222 1 A That he was being surveilled. 2 Q Okay. 3 A And that the informant had met him and 4 became friends with him. 5 Q And did they say how often he was being 6 surveilled? 7 A I don't recall them saying how often, no. 8 Q Did you get the impression it was 9 regularly? 10 A Daily. 11 Q Daily? 12 A Yes. 13 Q And was the word "Church of Scientology" 14 mentioned? 15 A Yes. 16 Q And did Raftery mention that the Church of 17 Scientology had hired him as an investigator? 18 A Yes, sir. 19 Q And did he tell you that on the first 20 meeting, the first discussion with you? 21 A Yes, he did. 22 Q What did you say to him? 23 A That I wasn't real pleased with getting 24 this type of case. 25 Q Why? KANABAY COURT REPORTERS 223 1 A Because of the church being involved, and I 2 didn't want -- if they're doing that much 3 investigation on one person, then, you know, 4 something's going to have to come to me. I'm going 5 to see for myself, and not just going to take 6 someone's word for it. 7 Q You didn't feel comfortable? 8 A Correct. 9 Q Have you come to learn the parts of this 10 investigation now that you were not aware of back 11 when you were dealing with Gaston? 12 A Yes. 13 Q Would you have gotten involved in it again? 14 A Once I saw the marijuana plant, then I 15 would. Yes, I would have. 16 Q When you dealt with Gaston, was he up-front 17 with you about what he was doing in this 18 investigation? 19 A Yes. 20 Q Okay. Subsequently, did you learn that he 21 was doing things outside of this investigation and 22 the permission that Largo Police gave him? 23 A Correct. 24 Q All right. When you found out that he was 25 possessing marijuana himself? KANABAY COURT REPORTERS 224 1 A Yes. 2 Q All right. And is that against department 3 policy? 4 A Yes. 5 Q And do you discuss with him or did you 6 discuss with him back on April 24 what the rules and 7 regulations were about being a confidential informant 8 for your department? 9 A Yes, sir. 10 Q All right. And do you consider a 11 confidential informant who outside your presence 12 possesses drugs to be unlawful? 13 A Correct. 14 Q It's against the law? 15 A Yes. 16 Q Did Mr. Gaston ever turn over to you any of 17 his daily reports that he was making in this case? 18 A No. 19 Q Did you know that he was making daily 20 reports? 21 A Later on I found out that he was actually 22 making the daily logs or reports. 23 Q Okay. 24 A I would probably assume that he wrote 25 something down to give to his boss. KANABAY COURT REPORTERS 225 1 Q But you learned that reports were in 2 existence after the arrest in this case? 3 A Right. 4 Q Now, when you went to Mr. Prince's house on 5 May 7, did Rinzy Trinidad make the introduction of 6 you? 7 A Yes. 8 Q And when you were within the house of 9 Mr. Prince, did you see any pots that appeared to 10 have marijuana in them? 11 A On that date? 12 Q Yes, sir. 13 A On the back porch. 14 Q Okay. And on the back porch, were they 15 interspersed with other tropical plants? 16 A Yes. There were a lot of plants back 17 there. 18 Q And Deneen was caring to or watering those 19 plants? Did you ever see her water the plants? 20 A Yes, I did. 21 Q Okay. And was it on that date? 22 A I believe it was on the second date where I 23 actually saw her water the plants. 24 Q Were these plants interspersed among 25 tropical plants on the porch, the ones -- now I'm KANABAY COURT REPORTERS 226 1 talking about on the 7? 2 A Yes. 3 Q Were you able to see the color of the pots 4 they were in? 5 A Yes. 6 Q What color were they? 7 A On the second date? 8 Q Let's take the first date. 9 A On the first date I can't recall what color 10 the pots were. 11 Q Okay. Can you tell us whether or not on 12 the first date, that is on May 7, were any of the 13 plants that you saw there tested by a laboratory to 14 confirm that they were marijuana? 15 A No. 16 Q All right. Now let's take the second date. 17 How many pots did you see? 18 A With marijuana plants in them? 19 Q Yes, sir. 20 A One. 21 Q And what did that pot look like? 22 A I believe it was, like, just a planter, a 23 round pot. 24 Q And what color was it? 25 A It was black. KANABAY COURT REPORTERS 227 1 Q Okay. Was it larger or smaller -- 2 MR. DEVLAMING: Judge, I'm going just 3 for -- if I may do this, I'll have to have 4 the Clerk mark this as Defense 5 Exhibit NO. 1, but if I could do that in a 6 moment? 7 THE COURT: Okay. Any objection? 8 MS. WARDELL: No, sir. 9 THE COURT: Proceed. 10 BY MR. DEVLAMING: 11 Q Was it larger or smaller than this black 12 pot? 13 A I can't say for sure. I didn't -- I'm not 14 sure if it was larger or smaller. I don't think it 15 was any smaller than that. 16 Q Okay. Based upon what you saw, could this 17 have been the pot? 18 A Yeah, it could have been. 19 Q All right. And on the second visit which 20 led to the warrant in this case, it was your opinion 21 that the marijuana -- that a plant that was growing 22 out of a black pot was the one that you ended up 23 getting a warrant for the search of Mr. Prince's 24 residence? 25 MS. WARDELL: Judge, I would object. KANABAY COURT REPORTERS 228 1 The officer wasn't present when the actual 2 marijuana was seized from the pool. That 3 would be outside of his knowledge as to 4 whether the marijuana that was seized was 5 actually the plant that he saw the day 6 before. 7 MR. DEVLAMING: Well, I'll rephrase it, 8 Judge. 9 THE COURT: Rephrase. 10 MR. DEVLAMING: Okay. 11 BY MR. DEVLAMING: 12 Q You saw what appeared to be a marijuana 13 plant or maybe plants, you weren't sure of the number 14 of stalks, in a black pot. Was it that description 15 that let to you to get a warrant for the search of 16 the house? 17 A What led me to get a warrant was the 18 marijuana itself, not the pot that it was in. 19 Q Well, of course. Well, of course. The 20 plant that you saw growing in the black planter? 21 A Correct. 22 Q So you were able to see that, view it, and 23 then you went and got the warrant, correct? 24 A Correct. 25 Q All right. And so we're talking about then KANABAY COURT REPORTERS 229 1 from roughly August 6, which is when you and Gaston 2 went over, and then until the 11th, when the actual 3 search took place and the warrant was issued, 4 correct? 5 A Correct. 6 Q How long did it take to get a warrant? 7 A I can probably have one drafted -- it 8 depends on the circumstances. If I -- 9 Q Okay. Tell you what. Let me help you here 10 then because the question was sloppy. What I meant 11 was from the time that you leave the house and you're 12 going to have to draft what the house looks like, the 13 affidavit for search warrant and the rereading it, 14 the drafting it, the approval by the prosecutor and 15 seeing the judge, you know, until you walk away with 16 the judge's signature, beginning to end, roughly how 17 long does it take in this case? 18 A Probably about a day. 19 Q Okay. A full -- a full working day? 20 A By the time you draw it and find the judge 21 to sign it, yes. 22 Q Okay. Have you ever gotten a warrant for 23 marijuana plant before? 24 MS. WARDELL: Objection, Judge. 25 Relevancy. KANABAY COURT REPORTERS 230 1 THE COURT: Overruled. 2 THE WITNESS: For a marijuana plant? 3 MR. DEVLAMING: Yes, sir. 4 THE WITNESS: No. 5 BY MR. DEVLAMING: 6 Q You talked about conversations that Dee was 7 having and Jesse was having. At any time during this 8 investigation when you were present were there any 9 type of body bugs or recording devices used to 10 preserve conversation? 11 A No. 12 Q Okay. Was there ever any kind of 13 transmitting device used? 14 A Yes. 15 Q All right. And who wore the transmitting 16 device? 17 A I did. 18 Q Okay. And where was it transmitted to and 19 on what date? 20 A The second time we were there to another 21 unit on the street. I don't know where that unit was 22 though. Probably down the block. 23 Q And sitting in an undercover car of some 24 kind? 25 A Right. KANABAY COURT REPORTERS 231 1 Q And do they have the capability of 2 recording what is going on in this house and what is 3 being said? 4 A Yes, we have the capability of recording. 5 Q And can you tell me whether anything was 6 recorded concerning the discussions had inside 7 Mr. Prince's home? 8 A No. 9 Q It was not, or you can't tell me? 10 A No, it was not. 11 Q It was not recorded, or it was recorded but 12 it's -- 13 A No. Okay. It was recorded, but there 14 was -- it was -- it was so broken up that you 15 couldn't get anything from the recording. 16 Q Okay. Who was on the other end that did 17 the recording? 18 A Officer Desgardens. 19 Q Okay. Did Officer Desgardens ever take 20 that recording to try to have it, I guess, cleaned up 21 or whatever they call it? 22 A I don't believe so. 23 Q Now, on the second visit, Mister -- I'll 24 call him Trinidad, but it was Gaston/Trinidad. 25 A Okay. KANABAY COURT REPORTERS 232 1 Q Trinidad, did he ever try to buy marijuana 2 from Mr. Prince? 3 A In my presence? 4 Q Yes, sir. 5 A We had to ask if he had any, and he said 6 no. 7 Q Did Trinidad then say, "Listen, we're going 8 to the Keys. I'd be even willing to pay you for it"? 9 A Well, that's what I was saying. We tried 10 to see if we could get any marijuana from him, but he 11 had none to give to us. 12 Q On the first visit you said Dee showed you 13 around the house? 14 A Yes. 15 Q Okay. Did you ever on that visit or on the 16 second visit or at any time inside Mr. Prince's 17 residence see any marijuana that was being cured? 18 You know what I mean by being cured? 19 A Yes. 20 Q Did you ever see it? 21 A No. 22 Q Okay. Did you ever see any leaves being 23 laid out to be dried? 24 A No. 25 Q Did you ever see any drying lamps? Those KANABAY COURT REPORTERS 233 1 are the heat lamps. 2 A No. 3 Q Did you ever see any type of paraphernalia 4 that would lead you to believe that the plants that 5 were outside were in any way being processed -- 6 A No. 7 Q -- for use. Now, you said that Mr. Prince 8 made a comment that he had pulled out about fifteen 9 plants? 10 A Yes, sir. 11 Q Would that have been big ones or little 12 ones, or did he not say? 13 A He did not say. 14 Q But he said that after he pulled these 15 plants out that one plant remained -- or, excuse me, 16 grew in it's place? Is that what he said? 17 A Right. 18 Q Did he ever say that he planted any 19 marijuana? 20 A No. 21 Q Did he ever tell you that he fertilized 22 marijuana? 23 A No. 24 Q Did you ever see him watering marijuana? 25 A No. KANABAY COURT REPORTERS 234 1 Q Now, I think you had some knee surgery 2 during some of this time? 3 A I believe it was during that time. 4 Q Okay. Would it have been somewhere between 5 May 7 and August 6? 6 A Yes. 7 Q Okay. Did you know what Gaston was doing, 8 now that he had become a confidential informant 9 concerning this case, from May 7 to August 6? Did he 10 give you any briefings on what he was doing during 11 that period of time? 12 A Other than just phone conversations saying 13 that, you know, he is still around, no. 14 Q Okay. Did he tell you that he had been 15 inside the Prince home? 16 A No. 17 Q Did he tell you that he had smoked or used 18 marijuana? 19 A No. 20 Q Had he ever used Mr. Gaston/Trinidad 21 before? Had he ever been a confidential informant 22 before? 23 A For me, no. 24 Q Ever used him since? 25 A No. KANABAY COURT REPORTERS 235 1 Q Would you? 2 A No. 3 Q You weren't sure, Detective Crosby, but I 4 think you said that you believe that Mr. Prince and 5 his girlfriend moved into this house or bought the 6 house sometime in February? 7 A I wasn't -- no, I don't -- 8 Q You're not sure? 9 A No. 10 Q Okay. But were you -- I think Miss Wardell 11 asked you whether you were knowledgeable of the fact 12 that he was a recent owner of this particular 13 residence. 14 A I had been told, but I didn't have -- I 15 didn't know for sure. 16 Q Okay. And you've been to the residence? 17 A Three times. 18 Q Okay. Can you get to the back lanai from 19 the street without having to go through a gate? If 20 you need -- want me to show you pictures to help you? 21 A Yeah. I know there is a screen door on the 22 west side. 23 Q Okay. If you're standing on the street, 24 can you walk back to the back? 25 A I believe so. I think there's a fence KANABAY COURT REPORTERS 236 1 there, but I don't know if it is his fence or not. 2 Q I'm going to show you what in a moment is 3 going to be marked Defense Exhibit NO. 2(A-I) for 4 identification, if I may your Honor. 5 THE COURT: Please. Proceed. 6 BY MR. DEVLAMING: 7 Q And show you A and B and see if this helps 8 refresh your recollection. Are those two different 9 views of this home? One looking towards street and 10 one looking away from the street, to help you. 11 A Yes. But -- yes. I don't know what side. 12 I don't know what side of the house this is on. 13 Q Okay. But is that Mr. Prince's house? 14 A I can't say for sure. I don't have the 15 address here. 16 Q Well, if you don't know, you don't know. 17 A No, not from just this. 18 Q All right. Then let me ask you this. Can 19 you -- you can get to the back of his house from the 20 street without going through a gate, correct? At 21 least on one side of the house, correct? 22 A I believe so. The stockade fence I believe 23 it is -- I'm not sure, but I think it's the 24 neighbor's fence. 25 Q Okay. Which runs the property line? KANABAY COURT REPORTERS 237 1 A Right. 2 Q All right. So if you go walk from the 3 street back to the lanai, there's a screened-in porch 4 area in the back of the house? 5 A A pool area. 6 Q Pool area. Do you know whether the screen 7 is capable of being locked? 8 A I don't know. 9 Q All right. Do you know whether there was 10 any disrepair to the screen? 11 A I don't recall. 12 Q Okay. Do you know whether or not that is 13 subject to a security system at all? 14 A No. 15 Q Okay. But these plants were inside this 16 screened-in area, not inside the house proper, 17 correct? 18 A Correct. 19 Q All right. If no one was home, could you 20 have gone, without going over any fence, to the back 21 property of Jesse Prince and Dee Phillips? 22 A Yes. 23 MS. WARDELL: I'm sorry. I missed 24 that. Can you repeat that? 25 MR. DEVLAMING: Yes. I asked him KANABAY COURT REPORTERS 238 1 whether or not if nobody was home if he 2 could go from the street to the back of the 3 property without going over or through any 4 fence. 5 THE WITNESS: Except for the screen 6 area, yes. 7 BY MR. DEVLAMING: 8 Q During the course of your investigation, 9 which I suppose is when you first became involved 10 about a week before April 24 or thereabouts -- I'm 11 not going to hold you to dates -- up until the very 12 end April, May, June, July, August, so that's four 13 months, were you getting calls from Brian Raftery? 14 A Yes. 15 Q He wanted to know the status of the 16 investigation? 17 A Yes, sir. 18 Q After the arrest did you get calls from 19 Brian Raftery? 20 A Yes. 21 Q Did he want additional charges other than 22 cultivation brought against Jesse? 23 A They were mentioned. 24 Q Okay. He wanted child abuse charges? 25 A Yes. KANABAY COURT REPORTERS 239 1 Q Possession of drugs within a thousand feet 2 of a school? 3 A Yes. 4 Q What did you tell him? 5 A No. 6 Q Did you tell him it was your investigation, 7 not his? 8 A Correct. 9 Q Did you ever ask him why he wanted you to 10 load up on the charges? 11 A No. 12 Q To your knowledge, Officer Crosby, was any 13 substance tested by a laboratory other than that what 14 was taken on the 11th of April? 15 A No. 16 MR. DEVLAMING: Judge, if I could have 17 one moment, I think I'm almost done. 18 THE COURT: Okay. 19 BY MR. DEVLAMING: 20 Q So if I understand correctly, Officer, the 21 first time you went, you saw what looked like more 22 than one plant, correct? It looked like more than 23 one plant? 24 A Yes. 25 Q Jesse makes some comment to you he had KANABAY COURT REPORTERS 240 1 pulled out some plants and another one grew in its 2 place, correct? 3 A Correct. 4 Q Then on the second time you came, there was 5 only one pot? 6 A Well, the statement was made on the second 7 time. 8 Q I'm sorry? 9 A That statement was made on the second time. 10 Q That he had already pulled them out? 11 A Right. 12 Q Okay. And then on the second time there 13 was the one singular plant left? 14 A Yes. It was bushy and I thought it was 15 several. 16 MR. DEVLAMING: Judge, I believe that's 17 all the questions I have. 18 THE COURT: Thank you, Mr. DeVlaming. 19 Miss Wardell, do you have any redirect? 20 MS. WARDELL: Yes, your Honor. 21 THE COURT: Please proceed. 22 REDIRECT EXAMINATION 23 BY MS. WARDELL: 24 Q I just want to clear something up first. 25 On my direct I referred to the informant as the KANABAY COURT REPORTERS 241 1 NO. 273, and during cross-examination Mr. DeVlaming 2 referred to a Gaston. Is NO. 273 and Gaston one in 3 the same? 4 A Yes. 5 Q Also known as this Trinidad? 6 A Yes. 7 Q Just to make sure everyone knows we're 8 talking about the same person, 273 is Gaston, is 9 Trinidad? 10 A Correct. 11 Q Okay. And with regards to Raftery wanting 12 you to come up with a child abuse charge, that's 13 because the indication was children were present in 14 the home while marijuana was there, correct? 15 A Correct. 16 Q That was the rationalization? 17 A Right. 18 Q The children were around marijuana when it 19 was being smoked? 20 A That they were present in the home, yes. 21 Q Okay. And as far as the school charge, 22 that's because the Prince's home was, in fact, within 23 a thousand feet of a Montessori school? 24 A I don't know if it was within a thousand 25 feet. KANABAY COURT REPORTERS 242 1 Q That's what Mr. Raftery believed? 2 A Correct. 3 Q And he wanted you to look into that? 4 A Correct. 5 Q And you made a determination that that, 6 although it may, in fact, be true, it wasn't 7 something that was justified under these 8 circumstances? 9 A Yes. 10 Q And so you quelled that? 11 A Right. 12 Q With regards to whether or not you saw 13 Mr. Prince fertilize these marijuana plants, isn't it 14 true he said to you they only needed sun and water? 15 A Correct. 16 Q And did you see plants in the sun? 17 A Yes. 18 Q And you did see Miss Phillips watering 19 them? 20 A She was watering the plants. I didn't see 21 her specifically watering that one. 22 Q You saw her out back with water. 23 A Correct. 24 Q Okay. And there was actually a hose hookup 25 in the porch area too, if you recall? KANABAY COURT REPORTERS 243 1 A I don't know if there was a hose hookup. 2 Q Okay. But the two things that Mr. Prince 3 said these plants needed, you witnessed, correct? 4 Sun and water? 5 A Yes. 6 Q He didn't tell you they needed fertilizer? 7 A No. 8 Q There are very easy to grow, in his words, 9 right? 10 A Correct. 11 Q And as far as whether or not the marijuana 12 plants were in the, quote, house proper, as 13 characterized by the Defense, on May 7, when the 14 joint that was smoked, that was in the house proper, 15 correct? 16 A Yes. 17 Q So you observed Mr. Prince in possession of 18 marijuana in his house proper, correct? 19 A Correct. 20 Q And you based it being marijuana on your 21 training and experience? 22 A Yes. 23 Q You recognized the odor? 24 A Yes. 25 Q In fact, you brought it to your mouth, KANABAY COURT REPORTERS 244 1 correct? 2 A Yes. 3 Q Now, you told the Defense -- actually you 4 told the jury through defense questioning that you 5 didn't really care for the source of this 6 investigation, and is that why you wanted independent 7 corroboration that a crime, in fact, was being 8 occurred? 9 A Yes. I wanted to see it for myself. 10 Q And did you, in fact, satisfy yourself that 11 Mr. Prince was in possession of marijuana? 12 A Yes. 13 Q Did you, in fact, gain independent 14 corroboration that Mr. Prince possessed marijuana on 15 May 7? 16 A Yes. 17 Q And did you obtain independent 18 corroboration that Mr. Prince possessed marijuana on 19 August 6? 20 A Yes. 21 Q And although you weren't present when the 22 plant was seized on the 11th, are you satisfied from 23 independent corroboration that Mr. Prince possessed 24 marijuana on August -- 25 MR. DEVLAMING: Objection, Judge. He KANABAY COURT REPORTERS 245 1 wasn't there, Judge. He can't testify. 2 THE COURT: Sustained. 3 BY MS. WARDELL: 4 Q Based upon your knowledge and the 5 circumstances with regard to how that marijuana plant 6 was seized and where it was seized, are you satisfied 7 that there was independent corroboration that a crime 8 had occurred? 9 MR. DEVLAMING: Objection, Judge. If 10 he wasn't there, he doesn't know whether my 11 client was in possession on the day of the 12 warrant. 13 THE COURT: Sustained. 14 MS. WARDELL: May I be heard? 15 THE COURT: Yeah. 16 MS. WARDELL: This is in direct 17 response to his questions on cross that 18 opened the door to that particular question. 19 He asked him all kinds of questions about 20 what was going on outside his presence and 21 did he know or not know that it was going 22 on. 23 THE COURT: I sustain the objection 24 still because -- approach the bench. 25 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) KANABAY COURT REPORTERS 246 1 THE COURT: Even if Mr. DeVlaming did 2 do that, I don't recall that in his 3 questioning. What Mr. DeVlaming -- what the 4 defendant, I mean, witness ultimately ended 5 up testifying to is that he didn't see or in 6 any way became aware of exactly what the 7 plant was that was taken out of house on 8 that day. 9 MS. WARDELL: That's why I said based 10 on what you learned from the case as part of 11 your investigation as to what the other 12 officers took and what went on. And he said 13 he was driving the van. I mean, in other 14 words, another officer can be independent 15 corroboration. It doesn't have to be this 16 officer. 17 MR. DEVLAMING: That -- 18 MS. WARDELL: Just forget it. 19 Whatever. 20 MR. DEVLAMING: If she is withdrawing 21 it then, that's fine. 22 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 23 MS. WARDELL: May I proceed? 24 THE COURT: Please. 25 BY MS. WARDELL: KANABAY COURT REPORTERS 247 1 Q You were asked on cross-examination about 2 conduct that Mr. Gaston may have had with or without 3 your knowledge as relates to Mr. Prince? Were you 4 involved in any way in furtherance of Mr. Gaston's 5 conduct with Mr. Prince when you weren't around? 6 A No. 7 Q And do you -- do you approve at all in any 8 way of that conduct? 9 A No. 10 Q And, in fact, isn't it true that in light 11 of what we've learned about Mr. Gaston's conduct he's 12 subject to the same charges that Mr. Prince is 13 subject to with the exception of the plants? 14 A Correct. 15 Q And Mr. Gaston will be handled accordingly, 16 correct? 17 A Yes. 18 Q Now, are you also aware that Mr. Prince and 19 defense investigators met with Mr. Gaston? 20 A One more time? 21 Q Okay. Were you aware that Mr. Prince and 22 two defense retained investigators met with Gaston 23 early on after the arrest in an attempt to identify 24 him as the, quote, informant? 25 A Yes. KANABAY COURT REPORTERS 248 1 Q And are you aware that they did, in fact, 2 identify him as the informant? 3 A Yes. Mr. Prince was there, from what 4 Gaston told me. 5 Q Mr. Prince participated in that? 6 A Yes. 7 Q Okay. And at that time Mr. Gaston was a 8 witness in the case, correct? 9 A Correct. 10 Q And that certainly can be perceived as 11 being witness tampering, correct? 12 MR. DEVLAMING: Objection, Judge. That 13 elicits facts as far as how the meeting took 14 place. This witness cannot testify as to 15 whether -- 16 MS. WARDELL: It can certainly be 17 perceived that way, Judge. 18 THE COURT: Sustained. 19 MS. WARDELL: Nothing further. 20 THE COURT: Thank you. 21 MR. DEVLAMING: Two questions. 22 THE COURT: Sure. 23 RECROSS EXAMINATION 24 BY MR. DEVLAMING: 25 Q Officer, when the prosecutor asked you when KANABAY COURT REPORTERS 249 1 Raftery mentioned the Church of Scientology, you said 2 that you wanted to see for yourself. Remember saying 3 that a minute ago? 4 A About the narcotics? 5 Q When you heard that they were behind the 6 investigation, that you wanted to see for yourself, 7 correct? 8 A About the investigation, yes. 9 Q Correct. All right. Is that because you 10 didn't trust the tactics of the Church of 11 Scientology? 12 A I -- I just wanted to be able to see. I 13 mean, in all my other case I usually don't take the 14 word of a CI or someone coming off the street. 15 Q Okay. When you learned that Gaston may 16 have violated the law during the course of this 17 investigation, is it your opinion based upon what you 18 know now that he may be subject to criminal charges? 19 A He may be subject, yes. 20 Q Do you know whether he engaged in any 21 entrapment involving Mr. Prince? Do you know 22 firsthand? 23 MS. WARDELL: Objection. That calls 24 for a legal conclusion. 25 THE COURT: Sustained. KANABAY COURT REPORTERS 250 1 MR. DEVLAMING: That's all I have. 2 THE COURT: Ladies and gentlemen of the 3 jury, do you all have any questions? 4 Anybody? Don't be shy. All right. No 5 questions. May this -- sir, you may step 6 down and you are asked to remain. 7 MR. DEVLAMING: Your Honor, I will tell 8 you that I doubt that the officer -- well -- 9 THE COURT: So are we saying remain 10 under subpoena? 11 MR. DEVLAMING: Yeah. I don't mind if 12 he leaves the building. 13 THE COURT: All right. Sir, if you 14 would please make sure that we have a way to 15 contact you if we need you back. 16 THE WITNESS: Yes, sir. 17 THE COURT: All right. Thank you. 18 State, please call your next witness. 19 MS. WARDELL: The State calls 20 Officer Bruno. 21 * * * * * * * * * * * * * * * * * * * * * * * * 22 Whereupon, 23 MICHAEL BRUNO, 24 the State's witness herein, being first duly 25 sworn upon oath, was questioned and testifies as KANABAY COURT REPORTERS 251 1 follows: 2 THE COURT: Please proceed. 3 MS. WARDELL: Thank you, Judge. 4 DIRECT EXAMINATION 5 BY MS. WARDELL: 6 Q If you could please turn to the jury and 7 state your name by introducing yourself. 8 A Officer Michael Bruno from Largo Police 9 Department. 10 Q And how long have you been with Largo? 11 A I completed the police academy in December 12 of '98 and hired by Largo Police also in December. 13 Q And what are your current duties and 14 responsibilities? 15 A I'm currently assigned to the patrol 16 division of day shift of Largo Police Department. 17 Q And if you could briefly describe to the 18 jury your background, training and experience. 19 A I attend the twenty-week police academy, 20 which is a basic recruit training. I then completed 21 a twelve-week in-house training with Largo Police 22 Department, and a ten-week field training program 23 where I was assigned to a second officer and assigned 24 to patrol. 25 Q Would part of your training specifically KANABAY COURT REPORTERS 252 1 include the detection of narcotics? 2 A Yes, ma'am. I've been involved in 3 several -- many drug cases. I was also assigned 4 temporarily to a narcotics unit within the Largo 5 Police Department. 6 Q And although not assigned directly to the 7 narcotics now, on any given day at any given time you 8 could run into a narcotics investigation? 9 A Yes, ma'am, almost on a daily basis. 10 Q Routine traffic stop, marijuana in the 11 glove compartment? 12 A Yes, ma'am. 13 Q You've seen it on more than one occasion? 14 A Yes, ma'am. 15 Q You know it when you see it? 16 A Yes, ma'am. 17 Q I want to direct your attention to 18 August 11th of 2000. Did your department at that 19 time have a special task force that was designed to 20 assist in narcotic detail? 21 A Yes, ma'am. 22 Q And were you a member of that task force? 23 A Yes, ma'am, I was. 24 Q And was that your assignment during that 25 time frame? KANABAY COURT REPORTERS 253 1 A Yes, ma'am. 2 Q That was a special assignment? 3 A Yes, ma'am. 4 Q And what would this have entailed? 5 A It would have entailed doing controlled 6 buys, using confidential informants, surveillance and 7 execution of warrants. 8 Q All with narcotics as targets? 9 A Yes, ma'am. 10 Q And part of your regular duties would 11 include the discovery and seizing of narcotics where 12 appropriate? 13 A Yes, ma'am. 14 Q And on August 11, 2000, as a member of this 15 task force, did you assist in serving and executing a 16 warrant at 1949 Belleair Road here in Pinellas 17 County? 18 A Yes, ma'am, I did. 19 Q Prior to serving and executing that 20 warrant, would you have received specific training as 21 to what to do? 22 A Yes, ma'am. 23 Q In other words, you had a protocol or 24 checklist, if you will, of procedures? 25 A Yes, ma'am. KANABAY COURT REPORTERS 254 1 Q And as a rule when you serve a warrant, are 2 you going to go alone or are you going to go with a 3 team? 4 A With a team, ma'am. 5 Q And what's the purpose of the team? 6 A The team is to assure that the warrant is 7 served safely, as safely as possible and as 8 efficiently as possible. 9 Q Would each member on that team have a 10 specific assignment? 11 A Yes, ma'am. 12 Q And at approximately 7:30 a.m., 13 August 11, 2000, did you arrive at 1949 Belleair 14 Road? 15 A Yes, ma'am. 16 Q If you could please tell the jury what 17 occurred. 18 A I exited the van that we arrived in, and I 19 proceeded to the west side of the residence with 20 Investigator Crosby. I maintained a visual contact 21 on the west and south side of the residence. We 22 could see a small marijuana plant inside the 23 screened-in porch. I maintained visual contact with 24 that to make sure it was not disturbed while the 25 tactical team executed the warrant. KANABAY COURT REPORTERS 255 1 Q Did members of the team actually knock on 2 the door and, excuse me, secure Mr. Prince? 3 A Yes, ma'am. 4 Q Was that for safety reasons? 5 A Yes, ma'am. 6 Q Basically, at that point there was probable 7 cause to arrest him for the -- you would have talked 8 to Detective Crosby before going, correct? 9 A Yes, ma'am. 10 Q And you knew what Detective Crosby had seen 11 a few days prior? 12 A Yes, ma'am. 13 Q So he's then arrested and detained based on 14 those observations? 15 A Yes, ma'am. 16 Q And did you actually enter the residence 17 along with Mr. Prince? 18 A Yes, ma'am. He was already inside when I 19 walked in. 20 Q You came into contact in the residence? 21 A Yes. In the living room. 22 Q Did you read him his Miranda rights? 23 A Yes, ma'am. 24 Q And after that did you read him the 25 warrant? KANABAY COURT REPORTERS 256 1 A I did. 2 Q And is that standard procedure? 3 A Yes, ma'am. 4 Q Did you actually provide him a copy of the 5 warrant? 6 A I did. 7 Q And that's standard procedure? 8 A Yes, ma'am. 9 Q What specifically did this warrant allow 10 you to search for? 11 A For contraband, including the marijuana 12 plants in the back screened-in porch area of the 13 residence. 14 Q This was a very limited search? 15 A Yes, ma'am. 16 Q Members of team didn't whip through 17 drawers, open up desks, brief cases, kitchen drawers, 18 things of that nature? 19 A No, ma'am. 20 Q Members of the team did go do a cursory 21 check of rooms to make sure there weren't adults or 22 risk of harm, correct? 23 A Correct, for safety purposes, yes. 24 Q But there was no search, per se, of any 25 area other than the pool screened-in area? KANABAY COURT REPORTERS 257 1 A Correct. 2 Q And that's because the warrant limited you? 3 A Yes, ma'am. 4 Q And you followed the parameters of the 5 warrant? 6 A Yes, ma'am. 7 Q Did you actually enter the screened-in 8 porch area? 9 A I did, ma'am. 10 Q And please describe. 11 A I entered the -- actually I exited the 12 residence through the sliding door, and as I exited 13 to the right-hand side, there was an exit to the 14 screened-in porch area, an opening door, which was 15 closed at that time. There was also several plants 16 on the west side of the screened-in area, including a 17 marijuana plant tucked in with the other plants. 18 Q Okay. I just want to -- sometimes I don't 19 follow west and north and all that stuff real good. 20 Let's go through this slowly. When you leave the 21 back of the Prince residence to get into the pool 22 area, it's a sliding door? 23 A Yes, ma'am. 24 Q Is that in the living room to the pool? 25 A I believe it was the living room or KANABAY COURT REPORTERS 258 1 kitchen. 2 Q Okay. One or two areas? 3 A Correct. 4 Q You can get back from both ways? 5 A I believe so, yeah. 6 Q You can't remember? 7 A I can't remember if it was the kitchen or 8 the living room. That would be heading south. 9 Q Okay. And then to the right? 10 A To the right. 11 Q So to the right would be the rest? 12 A Yes, ma'am. 13 Q And so it's to the right that you see this 14 pot of marijuana plants? 15 A Yes, ma'am. 16 Q And that's still within this screened-in 17 area? 18 A Yes, ma'am. 19 Q Actually by a door? 20 A Yes, ma'am. 21 Q And do you recall -- 22 MS. WARDELL: Well, Judge, may I 23 approach the witness? 24 THE COURT: You may. 25 BY MS. WARDELL: KANABAY COURT REPORTERS 259 1 Q Was this the plant you actually seized? 2 A Yes, it was. 3 Q I'm going show you State's Exhibits NO. 4 4 and NO. 6 for identification purposes and ask you if 5 you recognize those. 6 A Yes, ma'am, I do. 7 Q And what is that? 8 A That is a marijuana plant along with the 9 west screened-in wall to the screened-in porch area. 10 Q Where it was when you observed it before 11 you seized it? 12 A Yes, ma'am. 13 Q Is that a fair and accurate representation 14 of where the marijuana plant was when you saw it? 15 A Yes, ma'am. 16 MS. WARDELL: At this time I would move 17 State's Exhibits NO. 4 and NO. 6 into 18 evidence. 19 THE COURT: Any objection? 20 MR. DEVLAMING: Let me just -- I 21 probably won't, Judge, but if I could just 22 see them. None. 23 THE COURT: That will be received. 24 BY MS. WARDELL: 25 Q You actually took these pictures, right? KANABAY COURT REPORTERS 260 1 A Yes, ma'am. 2 MS. WARDELL: May I briefly publish to 3 the jury? 4 THE COURT: Please. 5 MS. WARDELL: May I approach? 6 THE COURT: You may. 7 BY MS. WARDELL: 8 Q I'm showing you State's Exhibits NO. 3 and 9 a NO. 5, and I want to ask if you recognize these. 10 A Yes, ma'am. That's the same plant. And I 11 took those photos back at the Largo Police 12 Department. 13 Q This would be it in its uprooted condition? 14 A Correct. 15 Q What you actually seized? 16 A Correct. And I also removed one leaf to be 17 processed, and that's placed on the desk next to it. 18 Q That single leaf was what you sent to the 19 lab? 20 A That is what I did a presumptive on. 21 Q Okay. Let's talk about that in a minute. 22 This is a fair and accurate representation of how 23 they looked when you took them? 24 A Yes, ma'am. 25 MS. WARDELL: Judge, I would move KANABAY COURT REPORTERS 261 1 State's Exhibits NO. 3 and NO. 5 into 2 evidence. 3 THE COURT: Any objection? 4 MR. DEVLAMING: None. 5 THE COURT: They will be received. 6 MS. WARDELL: Briefly publish? 7 THE COURT: All right. So publish. 8 BY MS. WARDELL: 9 Q Okay. You mentioned a presumptive. Tell 10 us about that. What is that? 11 A A presumptive is a test that is given to us 12 that detects a narcotic substance. It's specifically 13 designed for one or multiple narcotics. The tests 14 that I used was specifically for marijuana. What you 15 do is you take a small portion of the substance you 16 want to test, place it inside a plastic ampule, close 17 it and break both -- there's two separate ampules 18 inside, shaking it, mixing the chemicals and it will 19 indicated a color change. For marijuana specifically 20 it's purple color. From clear to purple. It did 21 activate as a positive presumptive test. 22 Q Not withstanding the fact the test told you 23 it was marijuana, did you on your own form an opinion 24 that it was marijuana? 25 A Yes, ma'am. It's a marijuana leaf. KANABAY COURT REPORTERS 262 1 Q Based on your training and experience? 2 A Yes, ma'am. 3 Q And is it procedure to place this into 4 evidence? 5 A Yes, ma'am. 6 Q And is it procedure to forward a portion of 7 that plant over to the lab to have the lab actually 8 test it? 9 A Yes, ma'am. 10 Q Did do you that in this case? 11 A Yes, ma'am, I did. 12 MS. WARDELL: Judge, may I approach the 13 witness? 14 THE COURT: Please. 15 BY MS. WARDELL: 16 Q I'm going to show you State's Exhibit NO. 2 17 and NO. 9. Let's talk about NO. 9 first. What is 18 that? 19 A This is the entire marijuana plant that has 20 been folded up into smaller portions to be able to 21 fit into the bag, and that was placed into evidence. 22 Q So basically it's been sitting there since 23 August 11 drying out? 24 A Yes, it's dried out. 25 Q And are those your markings on it so you KANABAY COURT REPORTERS 263 1 can recognize what it says? 2 A Yes. You notice on the tape part here 3 these are my initials, M.P.B, and the date that 4 was -- it was sealed covering the tape on the back. 5 Q So if you open that, it's going to be dried 6 marijuana? 7 A Yes, ma'am. 8 Q Is that a fair and accurate representation 9 of the same condition that was in when you sealed it? 10 A Well, it was a lot bigger because it has 11 dried out at this time. 12 Q Is the bag the same? 13 A The bag is the same. 14 MS. WARDELL: I would move State's 15 Exhibit NO. 9 into evidence over any 16 objection. 17 THE COURT: Objection? 18 MR. DEVLAMING: None. 19 THE COURT: It will be received. 20 MS. WARDELL: It's -- Judge, it's not 21 my intent to open it at this point. If that 22 needs to be done later, that's fine. 23 BY MS. WARDELL: 24 Q And with regards to State's Exhibit NO. 2, 25 is this what you actually sent to the lab? KANABAY COURT REPORTERS 264 1 A I sent a total of five leaves to the lab. 2 I don't know how many were used, but this is one of 3 the leaves that was sent, yes. 4 Q And that was the bag you sent it in? 5 A I sent it in the inside plastic bag. It 6 was resealed by, I imagine, a lab worker. 7 Q And is this in the same condition with the 8 exception of what the lab people did to it as when 9 you packaged it? 10 A Yes, ma'am. It's just a little dried out 11 at this point. 12 MS. WARDELL: Judge, I would move 13 State's Exhibit NO. 2 into evidence? 14 THE COURT: Any objection? 15 MR. DEVLAMING: None. 16 THE COURT: Be received. 17 MS. WARDELL: Permission to publish? 18 THE COURT: Please. 19 BY MS. WARDELL: 20 Q And what was the point of just picking a 21 few leaves to send over. 22 A We don't need to send the entire plant. 23 It's an accurate representation of the plant to take 24 off a few leaves and send them out to be processed. 25 Q Is that standard police procedure? KANABAY COURT REPORTERS 265 1 A Yes, ma'am. 2 Q Do you recall how much the plant weighed 3 before you sent it to the lab? 4 A After shaking off the excess dirt, I have 5 it listed as 75 grams. And I did weigh that myself. 6 Q Yourself? 7 A Yes, ma'am. 8 MS. WARDELL: Judge, I don't have 9 anything further. 10 THE COURT: Any cross? 11 MR. DEVLAMING: Yes. 12 THE COURT: Proceed, sir. 13 CROSS-EXAMINATION 14 BY MR. DEVLAMING: 15 Q Officer Bruno, were you one of the officers 16 that executed the warrant? 17 A Yes, sir. 18 Q Did you have bulletproof wear on your 19 person? 20 A I believe I was wearing shorts and a 21 T-shirt and then a bulletproof vest over the top of 22 the T-shirt, yes. 23 Q Okay. And did -- how many members of your 24 department served the warrant? 25 A I believe it was myself and Officer Crosby KANABAY COURT REPORTERS 266 1 outside the residence, and probably four to six 2 members of the tac team inside went to the front 3 door. 4 Q Okay. And that's -- that's to be done very 5 quickly, right, in order to gain some sort of, you 6 know, control and surprise? 7 A In order to -- well, in most warrants, yes. 8 Q Okay. And these half a dozen people, were 9 they dressed like you, or were they in all black? 10 A I believe they were in all black except for 11 Officer Lauance (phonetic) who was wearing a full 12 uniform like I'm wearing. 13 Q The ones that were in all black did they 14 also have bulletproof vests on? 15 A I would imagine they did underneath their 16 shirts, yes. 17 Q Okay. And either automatic or 18 semiautomatic firearms? 19 A I believe some. Officer Chaney I do 20 remember specifically carrying and MP5, which is a 21 semiautomatic rifle, or not a rifle but a medium 22 sized machine gun. And other than that, I believe 23 everyone else had handguns. 24 Q Okay. And is it practice for all of them 25 to go in in order to gain control of the house as KANABAY COURT REPORTERS 267 1 quickly as possible? 2 A Yes, sir. 3 Q And was that done in this case? 4 A I believe it was. I was on the side of the 5 residence. I couldn't see exactly what was going on. 6 Q Was there any debriefing that there was a 7 nine-year-old and a thirteen-year-old asleep in the 8 house when it was being searched? 9 A I was made aware that there were children 10 inside the residence, and I was made aware that they 11 were sleeping upon entering the residence after the 12 warrant had already been executed and Mr. Prince was 13 secured. 14 Q Where was Mr. Prince arrested, do you know? 15 A Do not know, sir. 16 Q Did you go inside residence? 17 A Yes, sir. 18 Q Okay. Did you go out into the lanai area? 19 A By the front door? 20 Q No, no. The lanai, meaning the screened-in 21 porch area. 22 A Yes, sir. 23 Q Okay. So you're out back making sure that 24 nothing happens to that plant by looking through it, 25 correct? KANABAY COURT REPORTERS 268 1 A Right. 2 Q The six officers go through the door, 3 secure the house, and you're still outside looking at 4 that plant? 5 A Correct. 6 Q All right. So at some point in time when 7 they say, "all secured," you're able to take your 8 eyes off the plant and go in the house, right? 9 A Correct. 10 Q Did you ever see Mr. Prince on that date on 11 the lanai, that is, in the screened-in porch area? 12 A No, sir, I did not. 13 Q Go ahead. 14 A He was inside the residence when I made 15 contact with him. 16 Q All right. So did you ever see him in 17 possession of what was on the lanai on April 11th of 18 the year 2000? 19 A No, sir, I did not. 20 Q And how many marijuana plants did you take 21 after this house was secured? 22 A One plant, sir. 23 Q And is this, which I am showing you will be 24 marked Defense Exhibit NO. 3 for identification, does 25 this appear to be the pot that you got that marijuana KANABAY COURT REPORTERS 269 1 out of? 2 A It appears to be. I do recall the dead 3 root system in there also, and it's evident in the 4 photos that there is a dead root system in that 5 plant. 6 Q You took the plant out of that pot? 7 A Yes, sir. 8 Q Okay. You remember taking it out of the 9 pot before another officer said, "Hey, did you take a 10 picture of that?" 11 A Yes, sir. 12 Q All right. So then you put the plant back 13 in the pot? 14 A Yes, sir. 15 Q Okay. So that picture that we saw was you 16 replanting -- replanting that pot into the pot before 17 the photo was taken? 18 A Correct. I took it out, shook some of the 19 dirt off it and placed it back into the planter. 20 Q You sure this is the planter you took it 21 out of? 22 A Yes, sir. 23 Q Are you absolutely sure it did not come out 24 of a black planter that might have looked something 25 like Defense Exhibit NO. 1 for identification? KANABAY COURT REPORTERS 270 1 A I'm positive it came out of that planter, 2 sir. 3 Q Thank you. When you went to the 4 screened-in porch area, did you have to trans -- did 5 you have to go over any gates? 6 A To go over any gates? 7 Q Right. 8 A I don't recall, sir. I don't believe that 9 there was a gate on the west side of the residence. 10 Q All right. Let me show you what's been 11 marked at Defense Exhibit NO. 2-A and B for 12 identification. Does that look like the west side of 13 the residence? 14 A Actually, that looks like the east side of 15 the residence to me, sir. 16 Q Okay. Well, does one side have a gate 17 where you would need to open it, yet the other side 18 is open where you can walk right back to the 19 backyard? 20 A I don't recall, sir. This does look like 21 it is the east side of the residence though. 22 Q Okay. And let me show you what's been 23 marked as Defense Exhibit NO. 2-C and D. Does that 24 appear to be the rooted plant system that you saw on 25 the date that you conducted your seizure? KANABAY COURT REPORTERS 271 1 A It looks similar to it. I couldn't 2 absolutely say it is the same one. 3 Q Does that help you? Does that other 4 photograph that I just showed you help you by showing 5 you where on the lanai it was sitting? 6 A That is an accurate representation of where 7 the plant was removed. Whether that's the same root 8 system I couldn't tell you though. 9 Q But you have no reason to believe it's not? 10 A Not -- I couldn't tell you either way, sir. 11 Q Unless we did a pretty good job in 12 rerooting the dead rubber tree plant? 13 A Yes. 14 Q Okay. Is it part of the team when they 15 first get there for safety reasons to go through 16 every room. 17 A Do a cursory search to make sure there is 18 no armed gunmen hiding behind a closet door, yes. 19 Q Okay. So they walk in every room to make 20 sure that there's nobody that could cause them a 21 safety problem later, correct? 22 A I don't know that that's what they did as I 23 was not in the house. That would be normal 24 procedure, yes. 25 Q All right. Now, you can tell us this. Did KANABAY COURT REPORTERS 272 1 you ever see -- well, let me ask you this. If you're 2 doing that cursory search and you see something 3 illegal, you can take it, can't you? 4 A If it's in plain view? 5 Q Right. 6 A Yes, sir. 7 Q Okay. Did you ever see on that date any 8 curing marijuana? Do you know what I mean by that? 9 A No, sir. 10 Q Okay. Do you see any marijuana hanging 11 upside down so it can dry out and be later smoked? 12 A The only room I entered that day was the 13 living room. I didn't go in any rooms and no one 14 presented me anything else. 15 Q That's not what I asked you. Did anybody 16 present you with anything? 17 A No, sir. 18 Q How about any dried leaves? 19 A I was presented no other evidence other 20 than that marijuana plant. 21 Q Just that one plant in that dead rubber 22 tree planter? 23 A That's what I took in evidence. 24 MR. DEVLAMING: May I open this? 25 THE COURT: Yes. KANABAY COURT REPORTERS 273 1 BY MR. DEVLAMING: 2 Q I'm having in my hand what's been marked as 3 State's Exhibit NO. 9 now into evidence. Did you 4 take custody of the marijuana bush? 5 A The plant, yes. 6 Q The plant? 7 A Yes, sir. 8 Q And you sent one leaf off? 9 A Five leaves off to the lab. One for 10 presumptive on that I did. 11 Q Okay. And the rest of the plant you put in 12 this bag? 13 A I believe so, sir. 14 Q And on August 11th of the year 2000, is 15 this what you carried out of that residence? 16 A I believe there was more to it than that, 17 sir. 18 Q And that little foliage that's left? 19 A Yes, sir. 20 MR. DEVLAMING: That's it. 21 THE COURT: Thank you. Any redirect? 22 MS. WARDELL: Just briefly, Judge. 23 REDIRECT EXAMINATION 24 BY MS. WARDELL: 25 Q You were asked whether or not you saw KANABAY COURT REPORTERS 274 1 Mr. Prince in the possession of marijuana on 2 August 11. Now, possession doesn't have to be 3 actual, i.e., it doesn't have to be physically on him 4 to be possession, correct? 5 A Correct. There's constructive possession 6 also. 7 Q There is something else in the law called 8 constructive possession, right? 9 A Yes, ma'am. 10 Q And, in your opinion, Mr. Prince was in 11 constructive possession -- 12 MR. DEVLAMING: Objection, your Honor. 13 Object to the form of the question as being 14 asking for a legal conclusion. 15 MS. WARDELL: Judge, he opened the door 16 when he asked him was he in possession. 17 THE COURT: Overruled. 18 BY MS. WARDELL: 19 Q In your opinion, was Mr. Prince in 20 constructive possession of the marijuana plant that 21 was seized from his pool area? 22 A Yes, ma'am. 23 Q And this dried stuff basically has been 24 sitting in some evidence room somewhere since 25 August 11, right? KANABAY COURT REPORTERS 275 1 A Yes, ma'am. 2 Q It was a big and bushy plant when you put 3 it in and now it's dried? 4 A It's completely dried. 5 Q And it's this dried stuff that people 6 crunch and crumble and do whatever when they put it 7 in a paper and smoke it, right? 8 A It's the buds from the plant. 9 Q Right. This could be smoked? It could 10 have been smoked? 11 A It has THC content, yes. 12 Q All right. 13 MS. WARDELL: Nothing further. 14 MR. DEVLAMING: That's all, Judge. 15 THE COURT: Any questions? None? Sir, 16 you may step down. You are still under 17 subpoena. 18 THE WITNESS: Thank you, sir. 19 MS. WARDELL: He may be excused from 20 the building. 21 THE COURT: You are excused from the 22 building, sir. 23 You have any other witnesses you wish to 24 call at this time? 25 MS. WARDELL: Yes, your Honor. KANABAY COURT REPORTERS 276 1 Stacy Mace. 2 * * * * * * * * * * * * * * * * * * * * * * * * 3 Whereupon, 4 STACY MACE, 5 the State's witness herein, being first duly 6 sworn upon oath, was questioned and testifies as 7 follows: 8 THE COURT: Please proceed. 9 DIRECT EXAMINATION 10 BY MS. WARDELL: 11 Q Good afternoon. If you could please turn 12 to the jury and introduce yourself by stating your 13 name and how you're employed. 14 A My name is Stacy Mace. I work at the 15 Pinellas County Forensic Laboratory as a forensic 16 chemist. 17 Q And what would your duties and 18 responsibilities include? 19 A I analyze evidence to determine whether or 20 not there is controlled substances present. 21 Q And what type of training have you had to 22 enable you to do that? 23 A I have a Bachelor's of Science Degree from 24 the University of Central Florida in forensic science 25 and a minor in chemistry. I participated in a KANABAY COURT REPORTERS 277 1 one-term internship at the University with the head 2 of the forensic science department. I completed an 3 on-the-job training program with the Pinellas County 4 Forensic Laboratory, and I also completed a 5 forty-hour DOA forensic chemistry seminar. 6 Q How long have you held this position? 7 A A little over two years. 8 Q Have you during that two year period had 9 the occasion to chemically analyze various substances 10 to determine whether or not they contain narcotics? 11 A Yes, I have. 12 Q And how many times? 13 A Over a thousand. 14 Q Specifically, have you had an occasion to 15 do chemical testing to see if marijuana is involved? 16 A Yes, I have. 17 Q And how many times? 18 A Several hundred. 19 Q Is this a daily job for you? 20 A Yes. 21 Q Are you right across the street in one of 22 those labs, or where is the building? 23 A It's located at the Sheriff's Office 24 complex on Ulmerton Road and Seminole Boulevard. 25 Q As a matter of routine, you analyze KANABAY COURT REPORTERS 278 1 evidence throughout Pinellas County in cases? 2 A Yes, I do. 3 Q Have you been declared an expert before in 4 this particular area? 5 A Yes, I have. 6 MS. WARDELL: Judge, at this point I 7 would tender her an as expert in the 8 specific area of using chemical testing to 9 determine whether or not marijuana is 10 present. 11 THE COURT: Any voir dire? 12 MR. DEVLAMING: Not right now, no. 13 THE COURT: Be received. 14 MS. WARDELL: May I approach? 15 THE COURT: Please. 16 BY MS. WARDELL: 17 Q I'm show you State's Exhibit NO. 2 for 18 identification purposes and ask you whether or not 19 you recognize it? 20 A Yes, I do. 21 Q And how is it you recognize that? 22 A On the evidence label this is my signature 23 indicating that I opened this evidence and the date 24 that which I opened it and sealed it back on the heat 25 sealed bags. These are my marks on here, including KANABAY COURT REPORTERS 279 1 the date I that sealed this evidence, the laboratory 2 number, item number and my signature. 3 Q So when the evidence came to you it was 4 just in a manila bag and you, after the fact, put it 5 in this sealed bag? 6 A Yes, I did. 7 Q And do you recall the date you received it? 8 A May I refer to my notes? 9 Q Sure. 10 A I received the evidence on August 15, 2000. 11 Q And do you recall how you received it? 12 A I received it from our evidence custodian. 13 Q Is there a specific procedure that your 14 office has in place with as far as receiving 15 evidence, testing it and then sending it back? 16 A Yes. Evidence comes into our laboratory 17 via submitting agency to our evidence custodian, 18 where he'll log it in the computer, give it a 19 laboratory number and then keep it in a locked vault 20 until the cases are assigned to a chemist. And once 21 they're assigned, the chemist will pick up their case 22 and keep it in a locked bench until their analysis is 23 complete and a report is generated. Now, once a 24 report is generated, the chemist will turn it back to 25 the evidence custodian and he will return it back to KANABAY COURT REPORTERS 280 1 the submitting agency. 2 Q And with regard to this particular 3 evidence, would you talk to the jury about what it 4 was you analyzed and what the results were? 5 A I opened the evidence bag that was 6 submitted to me, removed the contents, which I have 7 described as plant material. I weighed it. I took a 8 sample for my analysis. I reweighed the sample to 9 determine how much was left and replaced it back into 10 this bag here that you see and heat sealed it. 11 Q And what were the results of your analysis? 12 A It was positive for cannabis. 13 Q And was all of the plant material used in 14 your testing, or did some remain? 15 A Some remained. 16 Q And is what remained what we see there with 17 a naked eye through the clear bag? 18 A Yes, it is. 19 Q So there is no longer anything down in the 20 manila envelope? 21 A Correct. 22 Q That was used up in the testing? 23 A Yes. 24 Q And could you just briefly talk to the jury 25 about the actual test? KANABAY COURT REPORTERS 281 1 A I performed a series of three microscopic 2 chemical and instrumental tests to determine my 3 results. 4 Q And can you tell us how that's done? 5 A First I looked at the sample under the 6 microscope for features characteristic to cannabis. 7 Then I ran a color test called the Duquenois Levine 8 test where I took a small amount of the sample and 9 extracted it with a solvent, and with this extract I 10 add a reagent and the resulted color I refer to my 11 notes. And this color just gave me an indication of 12 what the substance might be. 13 And then I ran the sample on the gas 14 chromatograph mass spectrometer, which we abbreviate 15 GCMS. Now the GC essentially is just an oven, and 16 inside this oven there's a column, and this column 17 serves to separate the sample. So the separated 18 sample at this point travels through the mass 19 spectrometer where they are broken apart and the 20 fragments were detected and recorded. 21 We -- this is a confirmatory test because 22 the way in which any chemical breaks apart is 23 characteristic. They always break apart the same way 24 every time we analyze them. The data is represented 25 to me in the form of a graph, which I compared it to KANABAY COURT REPORTERS 282 1 a standard, and if they match, it was considered a 2 positive test. 3 Q And your conclusion was, in fact, that the 4 substance you analyzed was marijuana? 5 A Correct. 6 Q I don't have anything further, Judge. 7 THE COURT: All right. Any cross? 8 MR. DEVLAMING: Just a couple 9 questions, your Honor. 10 CROSS-EXAMINATION 11 BY MR. DEVLAMING: 12 Q Miss Mace, is this the only marijuana as it 13 relates to this case that you were given to analyze? 14 A Correct, it is. 15 Q Okay. And, number two, do you have any 16 idea how much or what cost it was to the tax payers 17 for you to do this analysis? 18 MS. WARDELL: Objection, Judge. 19 Relevancy. 20 THE COURT: Sustained. 21 MR. DEVLAMING: I don't have anything 22 further. 23 THE COURT: Anything else? 24 MS. WARDELL: No, sir. 25 THE COURT: Ladies and gentlemen, any KANABAY COURT REPORTERS 283 1 questions of this witness? 2 THE JURY: No, sir. 3 THE COURT: No questions from the 4 jurors. Ma'am, you may step down at this 5 time? She may be released? And, Ma'am, you 6 are still subject to subpoena however. 7 Okay? Thank you. 8 Do you have any other witnesses? 9 MS. WARDELL: Judge, the State would 10 rest. 11 THE COURT: All right. The State of 12 Florida has rested its case. Counsel, 13 please approach. 14 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 15 MS. WARDELL: First, Judge, I'm going 16 to apologize for telling you whatever and 17 never mind. That was inappropriate when I 18 walked away from that objection. 19 THE COURT: Yeah. All right. You have 20 a motion? 21 MR. DEVLAMING: Yes. 22 THE COURT: At this time? 23 MR. DEVLAMING: Do you want to do it up 24 here? 25 THE COURT: I mean, it's up to you. I KANABAY COURT REPORTERS 284 1 wanted you to do it up here unless it's 2 going to take you a while because I was 3 going to then turn and see if you had your 4 case ready to start at this time. I don't 5 want to let them go. We haven't been going 6 quite an hour yet. 7 MR. DEVLAMING: Okay. Let me get my 8 cases. And I got -- my first witness will 9 be Gaston, so I got to make sure he is here. 10 He ain't exactly my friend, so... 11 MS. WARDELL: He was here when I went 12 to the bathroom. 13 MR. DEVLAMING: I think there's going 14 to be a little bit of fireworks before he 15 takes the stand. And Mr. Johnson let us 16 know he is not going to let him say anything 17 past his name, so you're going to have to 18 call the shots on that. 19 THE COURT: Then right now I need to 20 release them, let you run your motion, hear 21 Mr. Johnson and whatever he's got to say and 22 then go from there. 23 MR. DEVLAMING: Yes, sir. 24 MS. WARDELL: Judge I went ahead and 25 told people back in my office that if it KANABAY COURT REPORTERS 285 1 came to the point of reading the depo they 2 need to be ready to come and role-play as a 3 courtesy because I know you don't have two 4 people standing by to do that. 5 THE COURT: That thing's a hundred 6 pages. 7 MR. DEVLAMING: I don't think we're 8 going to be able to get that far. 9 MS. WARDELL: Okay. But they are 10 available if you need it. 11 (WHEREUPON THE BENCH CONFERENCE WAS CONCLUDED) 12 THE COURT: All right. Ladies and 13 gentlemen, we haven't quite been going an 14 hour, but I actually need to take you all 15 out for a short period. I don't know 16 exactly how long, ten, maybe fifteen or so 17 minutes, and then we'll get back to the rest 18 of the case from that point. Okay? Please 19 take the jury out. 20 (OUTSIDE THE PRESENCE OF THE JURY) 21 THE BAILIFF: The jury is out of the 22 hearing of the court, your Honor. 23 THE COURT: Okay. Mr. DeVlaming, sir, 24 do you have a motion? 25 MR. DEVLAMING: Yes, your Honor. At KANABAY COURT REPORTERS 286 1 this time Mr. Prince would move for a 2 directed judgment of acquittal as to the 3 charge of possession of marijuana on the 4 dates alleged in the information, and would 5 rely on two cases for that motion. I will 6 hand them to the Court, and tell you briefly 7 about what they say. 8 Judge, one is Marrisette v. State, found at 9 780 So.2d, page 1020, Fourth District, 2001. It 10 was decided about sixty days ago. And this has 11 to do with after the State rested they did not 12 introduce the marijuana which was the subject of 13 the charge into evidence. 14 Now, I know the State is going say, well, 15 yes, we did, and although I may concede that 16 they did as to 11th day of August which was 17 taken in this case, but I would suggest that the 18 marijuana that was seen on the 6th day of 19 August, which was described to be in a black 20 pot, was never -- was never seized or analyzed 21 nor was it on the 7th day of May. 22 The second cases is Trinidad v. State, 615 23 So.2d, page 806. And this was a marijuana 24 cigarette, which also was discussed in this 25 particular case, and this -- in the Trinidad KANABAY COURT REPORTERS 287 1 case I will tell you that it was available but 2 was not introduced. 3 But I'm sure the State's going to argue it 4 was not available, but that denies my client the 5 right of confrontation and due process by not 6 being able to have the substance testified in 7 order for the jury to make a determination 8 whether on the 7th of May or the 6th of August 9 he was in possession of marijuana. 10 THE COURT: Response? 11 MS. WARDELL: Judge, the response is 12 that in both the defendant's cases state 13 that if it's available I must bring it. 14 However, I would like to cite Pama at 552 15 So.2d 309, A.A., a juvenile, at 461 So.2d 16 165; J.S., a juvenile 691 So.2d 20, State v. 17 Bennett, 710 So.2d 661; Scarlett, 704 So.2d 18 615; Lewis, 754 So.2d 897, speaks for the 19 proposition that -- may I approach? 20 THE COURT: Yes. 21 MS. WARDELL: -- a law enforcement 22 officer based on his training and experience 23 may testify that a substance that he 24 observed is, in fact, marijuana sufficient 25 enough to go forward to the jury. So as for KANABAY COURT REPORTERS 288 1 the May 7 date and as for the August 6 date, 2 the officer's observations in and of 3 themself are sufficient. As for 11th day, 4 we have the lab test. 5 THE COURT: Any response? 6 MR. DEVLAMING: Judge, I am aware of 7 those, that case law, but I would like to 8 preserve my objection to the introduction of 9 that for the purpose of establishing proof 10 in this case. I was aware of that the case 11 law existed, but I still think it's a denial 12 of confrontation. 13 THE COURT: Thank you. The motion for 14 judgment of acquittal directed verdict will 15 be denied. 16 Now, you are prepared to call Mr. Gaston I 17 understand. 18 MR. DEVLAMING: Yes, sir. 19 THE COURT: And, Mr. Johnson, sir, I 20 have been told that there is some reason to 21 believe that Mr. Gaston is unprepared to 22 testify to anything beyond his name. Is 23 that accurate, sir? 24 MR. JOHNSON: May I approach, your 25 Honor? KANABAY COURT REPORTERS 289 1 THE COURT: Please. I would like you 2 to approach. 3 MR. JOHNSON: I never indicated such a 4 thing to anybody, your Honor. 5 THE COURT: Okay. 6 MR. JOHNSON: I thought we outlined the 7 areas that he would not be testifying to 8 earlier. I did want to have some ruling 9 from the Court on how we're going to handle 10 things. He doesn't have to -- so far, 11 Mr. DeVlaming hasn't told me exactly what he 12 is going to be asking either of my clients, 13 but we may get into areas where there may be 14 privilege objections and work product of 15 Miss Kobrin on my objections of this past 16 Monday. 17 THE COURT: It is my intention to 18 instruct your clients that if at any time 19 they feel that the answer to the question 20 would be incriminating and they felt 21 compelled to consult with you that I would 22 allow that to happen. I did observe the 23 other day as Mr. Gaston was testifying you 24 essentially clued him in that you felt that 25 the question should not be answered by KANABAY COURT REPORTERS 290 1 raising your hand? 2 MR. JOHNSON: Correct. 3 THE COURT: Unless there is an 4 objection from the attorneys in this case, 5 I'm prepared to allow you to proceed the 6 same today. 7 MR. JOHNSON: And if there is a 8 question which concerns my client, if I 9 raise my hand, I've asked both of them -- or 10 Miss Kobrin raises her hand, I have asked 11 them to respond, I believe my answer may 12 involve a privileged matter. Just that 13 loose just to clue people so they won't have 14 to take a privilege such as 15 self-incrimination in front of the jury 16 which would be improper. 17 THE COURT: Mr. DeVlaming and -- well, 18 Mr. DeVlaming, well, and Miss Wardell -- 19 here's my question, Mr. Johnson. Would it 20 be beneficial for us to proffer the 21 testimony at this time of the witness, 22 Mr. Gaston, to see what it is that 23 Mr. DeVlaming intends to ask him so that we 24 can get some sort of an understanding on the 25 privilege issue as opposed to questions KANABAY COURT REPORTERS 291 1 related to his Fifth Amendment right to 2 remain silent? 3 I don't think the Fifth Amendment questions 4 are going to be really in dispute. Anything 5 that may subject him to possible prosecution he 6 surely has no -- he cannot be compelled to 7 answer. However, the privilege issues are 8 separate. 9 MR. JOHNSON: Well, I consider both the 10 work product privilege and Fifth Amendment 11 privilege, that's why I was going to -- 12 THE COURT: Let me restate that. The 13 work product privilege. 14 MR. JOHNSON: I would much prefer that, 15 your Honor. And, quite frankly, it would 16 make it cleaner in front of the jury. 17 THE COURT: All right. Here's my next 18 question. Mr. DeVlaming, are you able to 19 assist us by telling us at this time what 20 particular questions that you might ask 21 related particularly or that may be related 22 to work product? 23 MR. DEVLAMING: No. No. I didn't 24 really plan to go into anything that I 25 consider to be a work product. I mean, this KANABAY COURT REPORTERS 292 1 was hashed out in the deposition, number 2 one, and, Judge, number two, I did a little 3 research since we met last, and I honestly 4 believe that when -- and if you kind of look 5 at Headnote 9, when a witness testifies in a 6 proceeding, he waives the Fifth amendment. 7 This man, under oath, answered all 8 questions in a deposition talking about 9 everything that I'm going to ask him. He -- 10 he's given up the Fifth Amendment. He has 11 waived the Fifth Amendment. And that's what 12 this case of State v. Spiegel, found at 710 13 So.2d page 13, Third District Court of Appeal, 14 1998, "The waiver of the Fifth Amendment 15 privilege against self-incrimination by 16 testimony is generally limited to a particular 17 proceeding in which the witness volunteered the 18 testimony." 19 Frankly, this is one where the lawyer ended 20 up testifying at a bar proceeding then later 21 asserted the privilege. They said, well, that's 22 two different proceedings. However, Judge, in 23 this case he gave a deposition in this 24 proceeding in this case, under oath, and it's my 25 position that he waived it. KANABAY COURT REPORTERS 293 1 THE COURT: Well, this exact case that 2 you have cited, however, specifically 3 states: "More importantly, for the purpose 4 of this case, waiver by testimony of Fifth 5 Amendment privileges is generally limited to 6 the particular proceeding in which the 7 witness volunteered testimony." 8 It cannot be said that this gentleman 9 volunteered any testimony. His attorney was 10 very vigorous in his efforts to avoid making 11 this witness or allowing this witness to 12 testify. 13 MR. DEVLAMING: Judge, what you're 14 saying is this proceeding meaning before 15 your Honor. I'm talking about the 16 proceeding at this case in a sworn 17 deposition downstairs where he answered all 18 of these questions. 19 THE COURT: Subject to the Court's 20 order that he appear at that deposition and 21 answer those questions. 22 MR. DEVLAMING: No, that he appear. He 23 could still have invoked his Fifth amendment 24 rights on -- all you did was said that he no 25 longer has the private investigator KANABAY COURT REPORTERS 294 1 privilege. You didn't abrogate anything or 2 tell him that had to waive his Fifth 3 Amendment rights. 4 MR. JOHNSON: They're separate issues 5 here, your Honor. Although the law says 6 waiving them related to a particular 7 proceeding, the case law that is given to 8 you by Mr. DeVlaming is the same case I 9 think he cited before, is where the 10 defendant takes the stand and then is 11 recalled on the same trial, and they're 12 questioning him. At that point he has 13 waived. He knows he is the defendant. He 14 knows his Fifth Amendment rights are 15 implicated. He knows he is the target. 16 Actually, he is the defendant. More than a 17 target. 18 The general rule -- and I just looked it 19 up. I didn't pull case law because I didn't 20 know there would be another dispute. I went to 21 the Sissle Federal Criminal Trials (phonetic), 22 which is the federal criminal text, and 23 basically a witness who testifies for a grand 24 jury may invoke the privilege at trial. 25 When my client, Mr. Gaston, testified in KANABAY COURT REPORTERS 295 1 deposition, I was not on notice in any way, 2 shape or form of the contradictory testimony of 3 Detective Crosby. Only Monday when I realized 4 what Crosby was going to say, did I inform the 5 prosecutor I think I've got to take the 6 privilege, or when I got some intimation. 7 I didn't know what Crosby exactly was going 8 to say until I sat in the hearing Monday and 9 heard his exact testimony, and then my decision 10 was cemented at that point. 11 So, one, not only is it a different 12 proceeding because it's not the same trial 13 proceeding where my client voluntarily waived -- 14 he is talking about a waiver. He had no 15 knowledge that his Fifth Amendment rights were 16 implicated, not knowing that Crosby was going to 17 take the position he did. So, one, no notice 18 and it was a different proceeding. It was a 19 deposition. 20 THE COURT: Miss Wardell? 21 MS. WARDELL: Judge, I don't 22 necessarily have a bone in this fight, but I 23 can't stand by and listen to him say he had 24 no knowledge. The Defense -- Mr. Gaston and 25 the defense attorney asked me for a subpoena KANABAY COURT REPORTERS 296 1 for that depo for the purpose of giving him 2 immunity, and I declined to give it to him. 3 MR. JOHNSON: Correct. And I advised 4 Miss Wardell why I wanted it because I 5 had -- you know, I'll tell you what I told 6 Miss Wardell. I told Miss Wardell I was 7 talking to my client before his deposition, 8 and I was just going over it again about the 9 simulated smoking, and he said, "Paul, I 10 can't tell you that I didn't get some in my 11 lungs." 12 I mean they're looking at it and there's 13 smoke all through the room. And based on that I 14 went out and told Miss Wardell, "Look, something 15 may have gotten in his lungs. I won't give you 16 the exact statement, but something may have 17 gotten in his lungs. I'd like immunity if we 18 can get it." We hadn't asked for it at that 19 time. 20 She departed the room, came in and gave me 21 a no signal. I had a conversation with my 22 client. He went on and testified and said in 23 the deposition, "Look, I can't tell you 24 something didn't get into my lungs." I got 25 worried that was more than simulation and the KANABAY COURT REPORTERS 297 1 State might take negatively to that. That's 2 what I was worried about. 3 I had no idea he was going to be 4 contradicted as to -- by Crosby as to whether 5 Crosby had knowledge if he was there in the 6 house otherwise without him being present after 7 he became a CI. So that's what my point was and 8 I made it clear to Miss Wardell. 9 And he testified to it, "Mr. DeVlaming, I 10 can't tell you something didn't get in my lungs. 11 There's smoke all through the room. They're 12 looking right at me while I'm trying to do it. 13 I'm doing the best I can." 14 That was my basis for going to Miss 15 Wardell, and I let her know, I'm worried some 16 got in his lungs. You might view that 17 differently. 18 THE COURT: Ten minutes. 19 MR. JOHNSON: Your Honor, by the way, 20 one other matter related to Mr. Raftery, 21 whenever the Court can, I would like to 22 address. I would be more comfortable if I 23 could do that at the bench. 24 THE COURT: Please approach. 25 MS. WARDELL: Judge, I'm at that point KANABAY COURT REPORTERS 298 1 you discussed in voir dire where I need to 2 go. 3 MR. DEVLAMING: Let's take a break 4 first then. Let's take the break and let 5 Lydia go. 6 THE COURT: All right. I'm sorry. 7 You're at the point where now? 8 MS. WARDELL: That you discussed in 9 voir dire that I got to go. 10 THE COURT: Back shortly. Ten minutes. 11 (A RECESS WAS HAD) 12 THE COURT: In my view it is, in fact, 13 I think even constitutionally it surely is 14 inherit and basic in what are constitutional 15 rights that whenever those rights are waived 16 that we do so knowingly and voluntarily and 17 freely. 18 Mr. Gaston was ordered by this Court to 19 appear at the deposition. At this time no one 20 has told me that Mr. Gaston was at any time 21 placed on notice that comments that he made at 22 the deposition could be used against him in any 23 way and he could possibly be prosecuted for 24 those. 25 We would not allow comments that any KANABAY COURT REPORTERS 299 1 defendant made to law enforcement to be used 2 against him unless he was -- he freely, 3 knowingly and voluntarily waived his rights 4 against the right to remain silent. 5 At no time that I am aware of during the 6 depo, and I did read the depo, that was 7 Mr. Gaston advised of his Miranda rights, 8 suggested to him in any way, shape or form that 9 he could be prosecuted, and at this point in 10 time I am not prepared to find that he has 11 waived his Fifth Amendment rights by previously 12 testifying, and he still at this time has the 13 right to invoke the Fifth. 14 Now, the only thing I am prepared at to at 15 this time, if you would all want to do that, is 16 to proffer the testimony of Mr. Gaston. I hate 17 to do it because it's going to take awhile and 18 we're going to have the jury sitting for a 19 while, but nonetheless, I think it's probably 20 the appropriate step before we hear his 21 testimony. 22 So I'm going ask him to be brought in at 23 this time and we shall proffer -- yes, 24 Mr. DeVlaming? 25 MR. DEVLAMING: Judge, that is going to KANABAY COURT REPORTERS 300 1 take an awful long time, puts me at a 2 disadvantage to have to then turn right 3 around and cross-examine him again. I would 4 like to do it this way. 5 I intend -- I would have intended, had it 6 not been for your ruling, to ask him 7 substantially the same questions that are 8 contained in the filed deposition, in essence 9 the areas that I put in my motion to dismiss. 10 And that is talking about the numbers of times 11 that he possessed marijuana; number two, that he 12 took drugs from within Mr. Prince's house; 13 thereafter took -- number three, that he took it 14 for -- or you know, stole it basically. He 15 conducted illegal search and seizure. 16 Now, if your ruling is those areas of him 17 violating the constitution by stealing and that 18 he was in possession of drugs are such that it 19 would violate the privilege for me to ask them, 20 I would like you just to tell me that. I 21 mean -- 22 THE COURT: I don't think it violates 23 the privilege -- I'm not prepared to say 24 that you cannot ask those questions. He 25 does not have to answer those questions. KANABAY COURT REPORTERS 301 1 MR. DEVLAMING: Okay. Well, then my 2 suggestion then is when he does say the word 3 "privilege" that you just say sustained, and 4 I will not argue. 5 MR. JOHNSON: Your Honor, may I? 6 THE COURT: You may. 7 MR. JOHNSON: Again, Mr. DeVlaming and 8 I on this subject matter had a conversation 9 yesterday early yesterday afternoon, and 10 again I apologize I didn't come with 11 research. It was my understanding at the 12 close of that, I can't give you the precise 13 wording, that the areas that Mr. Gaston was 14 going take the Fifth as evidenced in the 15 Monday hearing Mr. DeVlaming would leave 16 alone. 17 My general understanding of the law, and 18 again I'm sorry I didn't bring research, is that 19 it's improper to have someone on the stand just 20 to have him take the Fifth in front of a jury. 21 THE COURT: It is improper to put 22 someone on the stand for the sole purpose of 23 impeachment. That's a fact. 24 MR. JOHNSON: True, and also improper 25 just to put them on the stand just to take KANABAY COURT REPORTERS 302 1 the Fifth so the jury gets all the negative 2 inferences that this person must have -- 3 although it's a constitutional right, the 4 law also acknowledges that, gee, people tend 5 to look down and think badly about people 6 that take the Fifth, and that's not the 7 purpose of the Fifth amendment. It protects 8 the innocent as well as the guilty. 9 THE COURT: You're going to need to get 10 that case law. 11 MR. JOHNSON: All right. I'll have to 12 call that in. There was another matter then 13 that I wanted to take before the Court at 14 the bench. Would you rather do that now or 15 later after the proffer? 16 THE COURT: Do it now. 17 MR. DEVLAMING: Okay. 18 MR. JOHNSON: May I approach the bench? 19 Miss Kobrin also asked to -- 20 THE COURT: Miss Kobrin, if you would 21 please approach. 22 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 23 MR. JOHNSON: I represent, as the Court 24 knows, Mr. Gaston and Mr. Raftery. As the 25 Court's aware from the deposition, I KANABAY COURT REPORTERS 303 1 reviewed it a while ago, in the own words of 2 Mr. DeVlaming that members of -- whoever, 3 supporters of his client, I assume they're 4 from the Lisa McPherson Trust, intended at 5 the deposition to photograph Mr. Raftery. 6 There were two men outside waiting with 7 cameras. One of the men I understand is here 8 with a camera. Mr. Raftery, as a longtime DEA 9 agent, has made many people be put in jail, put 10 people -- he's been informed that he has had 11 three death contracts taken out on him. 12 It's his understanding that a particular 13 organization which he's given me the name of 14 still has an active death contract, murder 15 contract, out on him. He's been very careful 16 not to be photographed. He has been very 17 careful not to be seen. The Lisa McPherson 18 Trust has an extensive internet presence. I 19 don't know if the Court's gone through it. 20 THE COURT: No clue. 21 MR. JOHNSON: I believe that they would 22 want to publish a photograph of him. Also 23 I'm worried about the media. My 24 understanding generally of the law in 25 Florida, the Supreme Court allows the media KANABAY COURT REPORTERS 304 1 to be here unless there is a compelling 2 showing of that the media's presence would 3 harm people here or other proceedings. 4 I don't think photographing -- the media 5 photographing Mr. Raftery would harm the 6 proceedings, but certainly it would put him at 7 risk were they to air that or release those 8 photographs. He will be willing to testify. He 9 has information and a belief that he is still 10 under one active murder contract. He does not 11 want to be photographed and published. 12 He has got to figure out how to get out of 13 this courthouse without being photographed 14 because I assume as at his deposition, there's 15 people out there waiting to photograph him. I 16 believe that is a compelling interest, and he 17 would be happy to tell the Court, in camera, 18 what he believes is the active murder warrant -- 19 excuse me, murder contract. 20 THE COURT: You all wish to be heard on 21 this? 22 MR. DEVLAMING: Well. The only thing I 23 would say, Judge, is that he is still 24 actively surveilling people in the 25 Lisa McPherson Trust. I think they have the KANABAY COURT REPORTERS 305 1 right to know who is surveilling them. Now, 2 if there's a representation that he will no 3 longer do that, that's fine. But I think 4 other than that, that they have a right to 5 know who's on there bumper. 6 MR. JOHNSON: They've got people in the 7 courtroom who are going to visually identify 8 him. He cannot have his face published with 9 that name. 10 MS. WARDELL: Judge, this criminal 11 proceeding is not for the purpose of them 12 knowing who is following them. I'm no fan 13 of either side here, but this criminal 14 proceeding is not for them to further the 15 Lisa McPherson cause. That's what he 16 basically just said. You got to decide 17 whether or not this is a compelling 18 interest. 19 THE COURT: That's it. 20 MS. WARDELL: Not whether that is. 21 THE COURT: And at this point in time 22 as best I can tell his life may well be in 23 danger, and if his life is in danger, I do 24 find that to be a compelling interest. I 25 would allow him to enter. I would not allow KANABAY COURT REPORTERS 306 1 the taking of his photograph by any media. 2 MR. JOHNSON: For the record, there is 3 a moving camera and a still photographer in 4 the courtroom. 5 THE COURT: I would indicate to them 6 that they would not be allowed to take his 7 photo. 8 MS. WARDELL: We've got to turn off 9 that video in the media room. 10 MR. DEVLAMING: Well, he doesn't have a 11 video. He's got audio. 12 MS. WARDELL: I thought he was -- 13 MR. DEVLAMING: Audio. 14 THE COURT: From my understanding it 15 was supposed to be audio. If he's doing 16 something on video, I don't want anything 17 videoed. 18 MR. DEVLAMING: Then we better find 19 out. You know, I thought it was like you 20 said, audio, but if you think it's video, 21 then we'll find out. You know what else you 22 can tell them, Judge, is they can -- 23 THE COURT: Blur out his face. 24 MR. DEVLAMING: Yeah. 25 THE COURT: I got to rely on that KANABAY COURT REPORTERS 307 1 though, and I don't really want to do that. 2 MR. JOHNSON: And I have -- the way 3 they do the cameras I had where a woman was 4 drugged and potentially molested, certainly 5 photographed. The way the fuzz overgoes it 6 can be removed. She got aired on like the 7 fifteen-minute updates, hey, upcoming thing 8 on the trial, and they had taken the fuzz 9 off. 10 THE COURT: We'll not do that. All 11 right. Thank you. Mr. Bunker, sir, are you 12 video or audiotaping these proceedings? 13 MR. BUKNER: It's hooked into both. 14 THE COURT: You were not given 15 permission to videotape these proceeding. 16 MR. BUKNER: Oh, I'm sorry. I didn't 17 understand that. 18 MR. DEVLAMING: Judge, I think -- you 19 know what he means? From the fixed -- 20 THE COURT: I know what he means. 21 Okay. All right. We need to bring in the 22 witness. You need to unhook your video. 23 Let's proceed. 24 MR. DEVLAMING: Wait a minute now. 25 Before you bring in Gaston, we were going to KANABAY COURT REPORTERS 308 1 talk about whether you were going to make a 2 ruling and tell me what I can or cannot, you 3 know, go into. I mean, I didn't want to 4 spend the next forty-five to sixty minutes 5 on a proffer if you tell me these are the 6 areas that I'm going to sustain -- 7 THE COURT: He's at this point in time 8 given me no case law he has to, and I'm 9 still prepared to proffer him at this 10 moment. As best I can -- well, put it like 11 this. My ruling at this time still stands. 12 You get to ask him those Fifth Amendment 13 questions. He just doesn't have to answer 14 them. 15 MR. DEVLAMING: Okay. Then is there a 16 need for a proffer or we'll just go ahead? 17 THE COURT: If you all don't feel 18 compelled to have a proffer, call the next 19 witness and bring the jury back. 20 MR. JOHNSON: On that aspect, 21 Miss Kobrin stepped out to call for the 22 research would be as to work product, which 23 as I made clear in the deposition, I can't 24 raise. I wasn't a lawyer at the time. Only 25 Miss Kobrin can do that, so I think the KANABAY COURT REPORTERS 309 1 proffer, if there's anything going to go to 2 work product, we still do need a proffer. 3 MR. DEVLAMING: Judge, she can raise 4 her hand, and, you know, and say work 5 product and then you can call the shot. 6 MR. JOHNSON: Well, Judge, we went 7 through this in the deposition. 8 Mr. DeVlaming knows how the Court's already 9 ruled and what's happened at least with 10 respect to Mr. Raftery. He knows how the 11 Court -- 12 THE COURT: Tell her to raise her hand. 13 Bring the jury back. And what I would allow 14 if I need argument on it, Miss Kobrin would 15 have to come to the bench. 16 MS. WARDELL: Judge, when Raftery 17 testifies, you might want to turn that 18 camera off because I know people are back in 19 my office and they may not have caught not 20 to turn that on and have a tape in, and 21 people are watching it back there. 22 THE COURT: I don't know how to turn 23 the camera off, but I'll figure it out. 24 MS. WARDELL: Call the county guy. 25 THE COURT: The county guy? Can we KANABAY COURT REPORTERS 310 1 find the county guy and have him come up to 2 the courtroom? 3 MR. JOHNSON: Can I give you some cites 4 on that issue just looking at the text that 5 I brought? 6 THE COURT: Yell them out please. 7 MR. JOHNSON: And I'm just I'm glancing 8 at this. One is Grunewald v. U.S. at 353 9 U.S. 389, 1957, U.S. Supreme Court, and I'm 10 just reading from Sissle (phonetic). "The 11 court held it's a prejudicial error to 12 permit revelation or cross-examination of a 13 petitioner of petitioner's claim to the 14 Fifth Amendment privilege before the grand 15 jury --" 16 THE COURT: That's different than this. 17 MR. JOHNSON: "-- in a separate 18 proceeding." 19 THE COURT: That's different than this. 20 MR. JOHNSON: Again I'm trying to -- 21 similarly there is another case, Charles v. 22 Anderson, and I'll give you the cite, "the 23 holding of the court distinguishing 24 cross-examination of the defendant about a 25 prior inconsistent statement in cross about KANABAY COURT REPORTERS 311 1 the previous failure to give a statement 2 concerning events that later being 3 unconstitutional --" 4 THE COURT: That's still different. 5 MR. JOHNSON: All right. I'm just -- 6 again, I didn't think this was going to be 7 an issue today based on my conversations, I 8 didn't pull the case. 9 THE COURT: Thank you. Please bring 10 him in. 11 (IN THE PRESENCE OF THE JURY) 12 THE BAILIFF: Your Honor, the jury is 13 back in the courtroom and seated. 14 THE COURT: Thank you. Mr. DeVlaming, 15 sir, if you would, please call your first 16 witness. 17 MR. DEVLAMING: Judge, yes, the Defense 18 calls Barry Gaston to the stand. 19 * * * * * * * * * * * * * * * * * * * * * * * * 20 Whereupon, 21 BARRY GASTON, 22 the Defense witness herein, being first duly 23 sworn upon oath, was questioned and testifies as 24 follows: 25 THE COURT: Please proceed KANABAY COURT REPORTERS 312 1 Mr. DeVlaming. 2 MR. DEVLAMING: Thank you, your Honor. 3 DIRECT EXAMINATION 4 BY MR. DEVLAMING: 5 Q Please tell us your name. 6 A Barry Gaston, Sr. 7 Q And in what city do you reside? 8 A Lake Wales, Florida. 9 Q And what do you do for a living, 10 Mr. Gaston? 11 A I'm a private investigator. 12 Q And do you have previous law enforcement 13 experience? 14 A Yes, I do. 15 Q Okay. Were you a law enforcement officer 16 before you became a private investigator? 17 A Yes. 18 Q Are you licensed to carry a firearm? 19 A Yes. 20 Q What do you carry? 21 A On some occasions I carry 9X18 Hungarian 22 weapon, firearm, semiautomatic. 23 Q Mr. Gaston, did you have occasion to 24 receive a call to do some work in this town back in 25 February of the year 2000? KANABAY COURT REPORTERS 313 1 A Yes. 2 Q Who called you? 3 A (No audible response.) 4 Q Who called you? 5 A Who called me for what, sir? 6 Q To do some work in this town? 7 A Joseph Fabrizio. 8 Q And do you know what Mr. Fabrizio does for 9 a living? 10 A It's privileged, sir. 11 Q That's privileged, what Mr. Fabrizio does 12 for a living? 13 A Fabrizio is a private investigator too. He 14 owns a private investigation agency, sir. 15 Q Okay. And he is the one who called you up 16 and wanted your services, correct? 17 A Yes. 18 Q Did he tell you why he was choosing you? 19 A Yes, sir. 20 Q Why? 21 A Because he needed someone with my 22 qualifications. 23 Q Okay. Qualifications meaning your 24 background, or qualifications meaning you live out of 25 town and you're African American? KANABAY COURT REPORTERS 314 1 A African American was one of the 2 qualifications. 3 Q And was the fact that you were African 4 American discussed as far as what your duties would 5 be once you came into this town? 6 A No, sir. 7 Q Okay. Were you told who would be the 8 object of your activities? 9 A No, sir. 10 Q Were you ever told who would be the object 11 of surveillance? 12 A Eventually, sir. 13 Q Okay. Well, when? 14 A When I had a meeting in February on the 7th 15 of February. 16 Q Okay. In fact, that's when all of this 17 started, right, when you came into town and you were 18 hired on February 7? Is that correct? 19 A That's when what started, sir? 20 Q Okay. February 7, is that the day you were 21 hired on this job? 22 A Yes, sir. 23 Q And did you meet with a fellow by the name 24 of Raftery as well as on that date? 25 A No. KANABAY COURT REPORTERS 315 1 Q Okay. You only met with Fabrizio? 2 A That's correct. 3 Q Fabrizio ever show you a picture of this 4 man, and I'm pointing to Jesse Smith -- excuse me, 5 Jesse Prince? 6 A Yes. 7 Q All right. And did he -- in that context 8 did he show you his picture and say, "This is the man 9 you're to follow"? 10 A Not in those words, sir. Not in that 11 context, sir. 12 Q Did he say, "This is the man that you're 13 being hired to surveil"? 14 A Yes, sir. 15 Q Or to conduct your investigation 16 surrounding? 17 A Yes. 18 Q All right. And did you from February 7 for 19 a couple of months try to position yourself so you 20 could find out where Mr. Prince was? Did you surveil 21 him? 22 A I did. 23 Q All right. And from February 7 until 24 April 1, would you tell us approximately how many 25 times you tried to position yourself so that you KANABAY COURT REPORTERS 316 1 could meet with or see or surveil Mr. Prince? 2 A As far as I can recall, eleven. 3 Q And were any of those -- and none of those 4 were successful? 5 A Correct. 6 Q Did you go to bars? 7 A Yes. 8 Q Which bars did you go to? 9 A Maccabees Lounge on Greenwood in 10 Clearwater. 11 Q Okay. Who sent you there? 12 A Joseph Fabrizio. 13 Q Did he tell you that you might be able to 14 see Mr. Prince there? 15 A He said it was possible. 16 Q Okay. And did you sit and have drinks? 17 A I had a drink each time. 18 Q Each time. Okay. Meet any ladies? 19 A Several. 20 Q Okay. Just talked to some of the ladies 21 for a couple hours and they gave you their phone 22 number? 23 A Sometimes. 24 Q Yep. Married? 25 A Who? KANABAY COURT REPORTERS 317 1 Q Are you married? 2 A Yes. 3 MS. WARDELL: Judge, I would object to 4 relevance. 5 THE COURT: Sustained. 6 BY MR. DEVLAMING: 7 Q On these eleven occasions, would you report 8 back to Mr. Fabrizio? 9 A Yes, sir. 10 Q Would you report back to him almost 11 nightly? 12 A Each time. 13 Q Each time the surveillance was concluded 14 you would report back to Fabrizio? 15 A Yes, sir. 16 Q And did you tell him the results of your 17 surveillance? If you never saw Prince, you'd tell 18 him you never saw him? 19 A That's correct. 20 Q Okay. And on those eleven occasions, did 21 you have to tell Fabrizio that he never came into 22 these places you were trying to find him? 23 A That's correct. 24 Q Were there other places you went to other 25 than this particular bar to try to find Mr. Prince? KANABAY COURT REPORTERS 318 1 A There was one other. 2 Q What is it? 3 A Wilson's Lounge in I believe that's Largo. 4 Q All right. And in February and March, in 5 either of those months, did you find Mr. Prince in 6 Wilson's Lounge? 7 A Yes, sir. 8 Q You sure? 9 A No. I must correct that. No, I did not in 10 February or March. 11 Q You did not. It wasn't until February that 12 you found him? 13 A I didn't find him in February. 14 Q Did you see him in Wilson's Lounge in 15 February? 16 A No, sir. 17 Q Excuse me. In April. I'm sorry. In 18 April? 19 A Yes. 20 Q Okay. Because the first time that you saw 21 Mr. Prince in your surveillance that you conducted in 22 this case was in Wilson's on April 1st? 23 A Yes, sir. 24 Q Okay. And where did you position yourself 25 inside Wilson's? KANABAY COURT REPORTERS 319 1 A I was casual, sir. I didn't position 2 myself in any specific location. 3 Q Did you position yourself by the front door 4 that he would have to walk by you? 5 A Not each time, no. 6 Q How about that time. On the first time 7 where you tried to make contact with Prince on 8 April 1st, did you position yourself by the door? 9 A I positioned myself in front of the 10 television where the game was playing, which was not 11 at the door. It was on the side where the pool 12 tables were and the television, the large screen TV. 13 You would have to pass me if you came through the 14 door. 15 Q Okay. And, in fact, Mr. Prince indeed came 16 in that night, didn't they? 17 A Yes, sir. 18 Q All right. And they went to the other end 19 of the bar? 20 A Yes. 21 Q What were they doing? 22 A They were kissing. 23 Q Okay. Anything wrong with that? Anything 24 immoral about that? 25 A No. KANABAY COURT REPORTERS 320 1 Q Okay. Were you watching them while they 2 were making out? 3 A Was I staring at them or watching? What do 4 you mean, sir? 5 Q Were surveilling them? 6 A Yes. 7 Q You were surveilling them? 8 A Uh-huh. I noticed them. 9 Q I'm sorry? 10 A I noticed them. 11 Q All right. And was there a time when 12 Mr. Prince walked by you on his way out with his 13 girlfriend? 14 A Yes. 15 Q Did he say anything to you? 16 A He spoke to me and said hello. 17 Q What did you say? 18 A Hello. 19 Q Okay. Did you report back to Fabrizio that 20 night that you had then for the first time made 21 contact with Prince? 22 A Yes, sir. 23 Q All right. Did you know at that point in 24 time that your employer was the Church of 25 Scientology? KANABAY COURT REPORTERS 321 1 A My employer was not the Church of 2 Scientology. 3 Q Who was your employer? 4 A Joseph Fabrizio. 5 Q And Fabrizio works for the Church of 6 Scientology? You know that now, don't you? 7 MS. WARDELL: Judge, I would object. 8 This is a defense witness. There is no 9 indication that he is hostile, and he's 10 asking quite a lot of leading questions. 11 THE COURT: Sustained. 12 BY MR. DEVLAMING: 13 Q Did you know at that point that Fabrizio 14 worked for the Church of Scientology? 15 A Fabrizio did not work for the Church of 16 Scientology as far as I knew. I didn't ask, him and 17 he didn't tell me at the time. 18 Q Are you sure? 19 A He did tell me, sir, that he is -- 20 Mr. Prince was related to the Church of Scientology 21 at one point. 22 Q Did he indicate to you who had hired him? 23 Did Fabrizio indicate who had hired him? 24 A No. 25 Q Okay. So all you knew is that Fabrizio KANABAY COURT REPORTERS 322 1 wanted you to do this job? 2 A Yes, sir. 3 Q Let me ask you this. You know who 4 Detective Crosby is? 5 A I do. 6 Q Did you ever tell Crosby that you well-knew 7 during this investigation that the Church of 8 Scientology hired you? 9 A Down the line I found out who was behind 10 the investigation, yes. 11 Q Okay. So, no mistake about it, you know 12 now who had hired Fabrizio, who then hired you, and 13 you told Crosby that, correct? 14 A Sir, I don't know the individuals that 15 hired Fabrizio. I can't speak for him. I am aware 16 of the persons involved -- correction, the 17 organizations involved. 18 Q All right. And that would be the Church of 19 Scientology? 20 A Yes, sir. 21 Q All right. Were you told why this man was 22 to be surveilled? 23 A I was told -- 24 Q Did you -- let me rephrase the question. 25 Did they tell you what you wanted to be able to get KANABAY COURT REPORTERS 323 1 out of this investigation, what they wanted you to do 2 in relation to Prince? 3 A Yes, sir. 4 Q All right. And was that to investigative 5 him to see if he had been doing anything wrong? 6 A My job, sir, was to surveil Mr. Prince and 7 to see if there was any illegal -- possibly illegal 8 activities behind his persona, observe it and report 9 it. 10 Q You worked on this case for 185 days, 11 didn't you? 12 A I'm not sure, sir. I didn't count. 13 Q All right. Let's count. I'm not going to 14 count it out loud. But you were hired on February 7, 15 correct? 16 A Yes, sir. 17 Q All right. And you know that August 11 was 18 the date of his arrest. I mean, that's in your 19 report, correct? 20 A Yes, sir. 21 Q Were you there the date of his arrest? 22 A No. 23 Q How do you know Dee was crying? 24 A I'm sorry? 25 Q How did you know Dee was crying? Your KANABAY COURT REPORTERS 324 1 report says Dee was crying. How did you know that? 2 A I don't know. I spoke to Crosby after the 3 arrest took place. He explained it to me. 4 Q Crosby said -- 5 A I'm not sure if he told me. I don't know 6 who told me, but I heard that she was crying. And if 7 that's in my report, that's what I heard. 8 Q But you don't know who told you? 9 A No. 10 Q You know this guy named Raftery? 11 A Yes, sir. 12 Q Raftery? 13 A Yes, I do. 14 Q Okay. Is he another investigator involved 15 in this case? 16 A Yes, sir. 17 Q Did you meet with him on occasion? 18 A Yes, sir. 19 Q Debrief him? 20 A Yes, sometimes. 21 Q Have some strategy sessions with him about 22 Prince? 23 A He was involved in some of them. 24 Q Okay. Did he ever call you on his cell 25 phone and tell you where you might be able to find KANABAY COURT REPORTERS 325 1 Prince? 2 A No, not me. 3 Q What about Fabrizio? Did he ever call you 4 and tell you where you might be able to find Prince? 5 A He told me sometimes, yes, sir. 6 Q Okay. And, in fact, when he would tell 7 you, you would go to position yourself at those 8 locations in the hopes of being able to surveil 9 Prince, correct? 10 A Yes, sir. 11 Q All right. Sometimes it worked, sometimes 12 it didn't, right? 13 A That's correct. 14 Q Okay. And sometimes your report indicates 15 that he was home for the night. He was with his 16 family. 17 A Yes, sir. 18 Q And do you also recall saying he was being 19 a bit conservative, he wasn't going out to bars on 20 certain times? 21 A Do I recall saying that? 22 Q Yes. That he appeared to be a bit 23 conservative in not going out? 24 A No, sir, I don't recall saying that. 25 Q All right. So your investigation then KANABAY COURT REPORTERS 326 1 starts on the 7th. You meet Mr. Prince for the first 2 time on April 1. Was it your intent to be able to, 3 and pardon the word, "infiltrate" his life to be able 4 to get into his life? 5 A No, sir. 6 Q Was it your intent to be able to get into 7 his home so that you could investigative inside his 8 house? 9 A Definitely not. 10 Q Okay. Definitely not. Could you tell me 11 then why on, if you were hired on April 7, and on 12 April 1 is the first time you ever met the man, how 13 you were able to get in his house on April 15? 14 A I was hired on February 7. 15 Q Right. The first meeting at Wilson's was 16 April 1st, right? 17 A That's correct, sir. 18 Q You got in his house on April 15? 19 A Yes, sir. 20 Q But it was never your intention to getting 21 in his house? 22 A It was never my intentions to speak with 23 him. 24 Q Fact of the matter is when you got in his 25 house on the 15th, you stopped by, right? KANABAY COURT REPORTERS 327 1 A On the 15th I followed him home. 2 Q On the 15th you followed him home? 3 A Yes, sir. 4 Q Okay. How many times did you go in his 5 house? 6 A It's privileged. 7 Q It's privileged how many times you went in 8 his house? 9 A Yes, sir. 10 Q Did you ever possess marijuana in his 11 house? 12 A Have I possessed marijuana? 13 Q In his house. 14 A Have I possessed marijuana? 15 Q Yes, sir. 16 A That's privileged. 17 Q Well, are you taking the Fifth amendment? 18 A (No audible response.) 19 Q Are you taking the Fifth amendment? 20 A Yes, sir. 21 Q All right. You got in Prince's house for 22 the first time on April 15th. Was his girlfriend 23 there, Dee? 24 A Yes, sir. 25 Q Okay. How about the kids? KANABAY COURT REPORTERS 328 1 A On April 15th? I don't remember meeting 2 the kids that night. 3 Q You know who I'm talking about, the kids? 4 Her kids? 5 A I know who you're talking about. 6 Q All right. What are their names? 7 A I don't know. I don't remember. 8 Q Were there times that you saw the kids in 9 the house? 10 A Yes, sir. 11 Q Times that they'd greet you at the door? 12 A Yes, sir. 13 Q Times that they hugged you? 14 A Oh, yes. 15 Q They thought you were their friend and 16 their daddy's friend? Did they think you were their 17 friend? 18 A Yes, sir. 19 Q All right. Did you become a confidential 20 informant officially on April 24? 21 A Yes, sir. 22 Q And you had a meeting with Detective Crosby 23 on that date? 24 A Yes, I did. 25 Q He told you what you could and couldn't do KANABAY COURT REPORTERS 329 1 as a confidential informant? 2 A Excuse me just a moment. 3 Q Sure. 4 A He gave me some information reference to 5 confidential informant. 6 Q But he gave you a sheet, didn't he? Is 7 that in evidence? Let me show you what's marked as 8 State's Exhibit NO. 1 -- is this in evidence? -- in 9 evidence. You recognize that sheet? 10 A I recognize signing it. 11 Q Okay. How about your initials on every 12 single paragraph. You recognize your initials? 13 A I do. 14 Q Did Crosby go over what the dos and don'ts 15 were as a confidential informant? 16 A He gave me the sheet and asked me to read 17 it and sign. 18 Q Okay. Did you ask him any questions, or 19 did you agree -- or did you agree to abide by these 20 conditions? 21 A I agreed. 22 Q Okay. Crosby tell you you could not either 23 use marijuana outside his presence or engage in 24 anything that would be considered entrapment? Did he 25 tell you that? KANABAY COURT REPORTERS 330 1 A I can't -- I'd like to plead the Fifth in 2 reference to your question, sir. 3 Q Were there times when you were with 4 Mr. Prince where he was drinking alcohol? 5 A Yes, sir. 6 Q And were there times when he was drinking 7 alcohol where you were concerned about him driving? 8 A Yes, I was. 9 Q And at times when you saw that that you 10 bought him alcohol? 11 A Negative, sir. 12 Q Never bought him alcohol at a bar? 13 A Twice I bought him a drink at a bar. 14 Q Did you bring alcohol to his house? 15 A Yes, sir. 16 Q Bring rum to his house? 17 A Yes, sir, in and bottle sealed. 18 Q In bottle what? 19 A In a sealed bottle. 20 Q Let me show you what will be marked as 21 Defense Exhibit NO. 4 for identification. Was it 22 Puerto Rican rum that looked like that? 23 A Possibly, sir. 24 Q Did you at any time think that Mr. Prince 25 had a problem with alcohol when you bought him KANABAY COURT REPORTERS 331 1 alcohol? Did it ever enter your mind that he had a 2 problem, he was a problem drinker? 3 A No. 4 Q Never did. Okay. Why did you bring him 5 alcohol? Was it as a gift? 6 A I'll take the Fifth on that question. 7 Q Well, do your reports indicate that Jesse 8 and Dee opened up more and talked more when you 9 brought alcohol? 10 A No, sir. 11 Q Dee did not open up more when she was 12 drinking? 13 A She opened up whenever she felt like 14 opening up. I don't know if it was because of the 15 alcohol or because she wanted to talk. 16 Q Did they consider you a friend? 17 A Yes, sir. 18 Q Let me ask you when you were having these 19 debriefings with Fabrizio primarily, and sometimes 20 Raftery, would you tell them these things you were 21 doing at the house? Would you tell them? 22 A It's privileged, sir. 23 Q Take the Fifth on that? 24 A Yes, I will. 25 Q All right. Where would these meetings take KANABAY COURT REPORTERS 332 1 place? Did you ever meet in parking lots? 2 A Sometimes. 3 Q All right. Meet at Eckerd's? 4 A Yes, sir. 5 Q All right. Met at a place calls Angie's 6 Restaurant? 7 A Sometimes. 8 Q All right. And is that when they wanted 9 you to tell them so that they could report back to 10 their employer what you were learning, what you were 11 doing? 12 A Not at Angie's, but at Eckerd's sometimes. 13 Q Was there a time that Mr. Raftery's son was 14 involved in these debriefings? 15 A I believe once. 16 Q Would he give his own opinion as to how you 17 should increase getting information from Prince, 18 Mr. Prince? 19 A No, sir. 20 Q He would not be involved in any strategy 21 sessions? 22 A Not that I recall. 23 Q Do you know how often Raftery on a daily 24 basis was surveilling Mr. Prince when you were 25 involved in this investigation from February to KANABAY COURT REPORTERS 333 1 April? 2 A I wasn't privy to all of that information, 3 sir. There were times when he was there. There were 4 times when he wasn't available. 5 Q But you didn't -- you came into town. You 6 weren't in town every day during this period of time? 7 A No, sir. 8 Q So but when you were coming into town, the 9 specific reason you were coming into town was to 10 surveil Jesse Prince, right? 11 A That's correct. 12 Q All right. And is that when Fabrizio and 13 also Raftery were stepping up their surveillance to 14 be able to help you to be where you could be to 15 surveil him? 16 A At times, yes. 17 Q Remember a girl at Wilson's named Joyce? 18 A Yes, sir. 19 Q Joyce know you're working undercover? 20 A Nope. 21 Q Okay. Is she a girl that you met there 22 that for lack of better term had an "interest" in 23 you? 24 A Yes, sir. 25 Q Okay. To this day have you ever told her KANABAY COURT REPORTERS 334 1 that you were married or working a case? 2 A I don't know her. She doesn't know me. 3 Q But you'd see her at Wilson's? 4 A A couple of times. 5 Q Played pool together? 6 A Yes, sir. 7 Q Introduce her to Jesse and Dee? 8 A Yes, sir. 9 Q How much did you get paid in this case? 10 A Overall? 11 Q Yeah. 12 A About 14,000. 13 Q Mr. Gaston, when you left and found out 14 that Jesse Prince -- let me ask you this. Do you 15 know how Raftery photographed this man's arrest? 16 Maybe you didn't know. Did you know he videotaped 17 his arrest? 18 A I wasn't present, sir. 19 Q But do you know that he did now, or has 20 this come as a surprise to you? 21 A I know now. I just learned it recently. 22 Q All right. And did Raftery ever tell you 23 about the process of knowing how he was going to get 24 arrested on the day he was? 25 A Raftery never told me how. He wouldn't KANABAY COURT REPORTERS 335 1 know. 2 Q No, no, no. Raftery is the one that 3 photographed it. He made the tape. My question is 4 did he ever tell you how he knew on April 11 to be at 5 this man's house? 6 A No, sir. 7 Q Okay. Do you know whether Raftery was in a 8 confidential vehicle surveilling this guy every day? 9 A I can't speak for him. 10 Q After April 11, did you think your job was 11 concluded when Mr. Prince was arrested? 12 MS. WARDELL: Judge, excuse me. I 13 think counsel means August 11. 14 MR. DEVLAMING: I'm sorry. You're 15 right. She's right. 16 BY MR. DEVLAMING: 17 Q When he was arrested on August 11, did you 18 think that your job was completed? 19 A Yes, sir. 20 Q Was there a time when two of my 21 investigators met with you in a place called Martin's 22 Restaurant -- I guess it's in the Lake Wales area -- 23 in October? 24 A I'd like to go back the last question. 25 Q Sure. KANABAY COURT REPORTERS 336 1 A My job was completed on the last day that 2 Officer Crosby went into that house. 3 Q Okay. That would be August 6? 4 A Yes, sir. 5 Q When he went in with you? 6 A That's correct. As far as I was concerned, 7 that was when I was finished. 8 Q But you subsequently learned that a warrant 9 was issued for his arrest -- I mean, for a search of 10 his house and he was arrested? 11 A That's correct. 12 Q All right. In fact, when you left on 13 April 6 with Detective Crosby, the reason you thought 14 you were finished is Crosby told you he was going to 15 get a warrant and serve it on Mr. Prince's house? 16 A The reason that I thought that I was 17 finished was because Officer Crosby told me that he 18 saw everything he needed to see. 19 Q Okay. All right. So let's get back to 20 that meeting. Did you have a meeting with my 21 investigators, Patterson and Emmons, at Martin's 22 restaurant on October 19th, year 2000? 23 A Yes, sir. 24 Q Why did think you were meeting with them? 25 A Because on October 16 I came home and found KANABAY COURT REPORTERS 337 1 Mr. Emmons' number on my ID box, as an Investigator 2 Emmons and Associates. And on October 18th I spoke 3 with him, and we were going to meet in reference to a 4 job that he said that he would like to hire me for. 5 On October 19th we met at Martin's Steakhouse in the 6 city of my home town. 7 Q Okay. And ostensibly you thought at that 8 point in time that was for the purpose of you getting 9 another job, right? 10 A That's right. 11 Q Okay. You met Emmons that day? 12 A I did. 13 Q Right. Met Patterson, and Patterson was 14 supposed to be the employer? 15 A That's correct. 16 Q Okay. Soon after you got there, there was 17 a surprise, right? 18 A Yes. 19 Q Jesse came around the corner and greeted 20 you, correct? 21 MS. WARDELL: I would just ask the 22 witness be allowed to answer questions. 23 This is direct testimony. 24 MR. DEVLAMING: I'm sorry. 25 MS. WARDELL: Objection. Leading. KANABAY COURT REPORTERS 338 1 THE COURT: Sustained. 2 BY MR. DEVLAMING: 3 Q Okay. Did you -- were you -- tell me what 4 you thought when you saw Mr. Prince come around that 5 corner. 6 A I thought I'm a confidential informant and 7 these two men brought a witness to me, and what's up. 8 And I was very, very intimidated. I didn't have to 9 show it, but I was very intimidated. The first thing 10 I thought about was grabbing my gun from my pocket. 11 Q Drawing your heat? Drawing your gun on 12 them? 13 A I didn't do it. 14 Q No, I know. But that's the first thing you 15 do is to draw down on him? 16 A First thing I thought about doing was 17 surviving. 18 Q Okay. 19 A It's my first instinct. 20 Q Okay. Did anybody go after you? 21 A When? 22 Q Right then. Was there anything that they 23 did in this crowded restaurant that you thought that 24 you were going to get hurt? 25 A Yes, sir. KANABAY COURT REPORTERS 339 1 Q All right. Who was the one talking to you 2 at that point in time? 3 A You want me to answer your question? 4 Q Yes. 5 A My back was to the door. These two 6 gentleman placed themselves where I would be at a 7 disadvantage. As a prior law enforcement officer, I 8 don't ever have my back to a door. They placed me 9 there. When Mr. Prince came up behind me, that's 10 when I was intimidated. That's why I was feeling 11 that way. 12 Q Okay. That didn't last long, did it? 13 A The whole time it lasted. 14 Q How long did you spend while they had 15 lunch? 16 A About thirty to forty-five minutes. 17 Q Okay. Was it more like forty-five to 18 sixty? 19 A No. 20 Q Okay. And in the meantime, they were 21 eating and you had some ice tea? 22 A They were eating and I had a glass of ice 23 tea. 24 Q Okay. And you're talking somewhat about 25 the investigation? KANABAY COURT REPORTERS 340 1 A Can you explain further? 2 Q Sure. Wasn't it said at that meeting and 3 asked to you at that meeting whether Mr. Prince was 4 pulling out plants -- 5 MS. WARDELL: Judge, again, this is 6 direct examination, and this has been turned 7 into a cross, and there is no indication 8 this witness is hostile. Why doesn't he ask 9 the witness what was going on? 10 MR. DEVLAMING: I did. He said, "Would 11 you be more specific?" 12 THE COURT: I'll sustain the objection. 13 MS. WARDELL: And I also would ask that 14 you prohibit counsel from introducing 15 self-serving hearsay through his 16 questioning. 17 THE COURT: When you object, I'll do 18 that. 19 MS. WARDELL: Thank you. 20 BY MR. DEVLAMING: 21 Q All right. So you had a conversation in 22 Martin's restaurant, and when you left, did you all 23 walk outside? 24 A When we left? 25 Q Yes, sir. Did you all walk out together? KANABAY COURT REPORTERS 341 1 A Yes, sir. 2 Q All right. Were you still feeling 3 intimidated, or was that over? 4 A I was angry by then. 5 Q Okay. Were you so angry that you didn't 6 hug Jesse Prince, or did you hug him? 7 A We hugged. I don't let people know how I 8 feel, Mr. DeVlaming. My job is to act, and when 9 those guys came up on me, I acted. 10 Q You thought they tricked you? 11 A They did trick me. 12 Q Okay. Did you trick this man in your 13 investigation? 14 A That's my job. 15 Q Jesse Prince had not moved into his new 16 house with his fiancee by the time that you started 17 this investigation on February 7, correct? 18 A I don't know when he moved in. 19 Q Was the first time you ever drove by his 20 house the day you went to his house on April 1st? 21 A I believe so. 22 Q Mr. Gaston, when you were at Jesse Prince's 23 house, did you ever steal anything? Did you ever 24 take anything out of his house? 25 A No, sir. KANABAY COURT REPORTERS 342 1 Q You never took anything out of his house? 2 A Never took anything out of his house. 3 Q Put anything in your pocket? 4 A I'll hold that as a Fifth. 5 Q You take the Fifth? 6 A Uh-huh. 7 MR. DEVLAMING: That's all I have. 8 THE COURT: Cross? 9 CROSS-EXAMINATION 10 BY MS. WARDELL: 11 Q Good afternoon. 12 A Hi. 13 Q Mr. Gaston, you have taken the Fifth on 14 several questions throughout your direct testimony. 15 Isn't it true you're taking the Fifth because you're 16 now aware that you face possible charges as a result 17 of your conduct during this investigation? 18 A Correct. 19 Q Does your alleged misconduct in any way 20 change the fact that Jesse Prince possessed marijuana 21 in your presence between May 7 and August 11? 22 MR. DEVLAMING: Just a minute. 23 Judge,if he answers that question I'm 24 entitled to cross-examine on those Fifth 25 Amendment answers. If that question stands, KANABAY COURT REPORTERS 343 1 I ask to approach the bench and ask to 2 reopen the Court's ruling. 3 MS. WARDELL: Judge, my question was to 4 Mr. Prince's misconduct. 5 THE COURT: Overruled. 6 BY MS. WARDELL: 7 Q Does your alleged misconduct in any way 8 change the fact that the defendant in this case, 9 Mr. Prince, possessed marijuana between May 7th and 10 August 11th of 2000? 11 A No, it does not. 12 Q And based upon your training and 13 experience, are you able to recognize marijuana on 14 sight? 15 A Yes. 16 Q Do you recognize it not only in plant form 17 but also as a rolled joint? 18 A That's correct. 19 Q And you are aware that you do not have 20 immunity for your answers, correct? 21 A That's correct. 22 Q I have talked to you about some of your 23 visits with Mr. Prince. I want to go to April 2nd of 24 2000. Isn't it true that Jesse Prince gave you his 25 home phone number? KANABAY COURT REPORTERS 344 1 A That's correct. 2 Q And isn't it true that Jesse Prince and his 3 girlfriend that night at Wilson's bar talked to you 4 about Scientology involvement in their life? 5 A Yes, ma'am. 6 Q They brought up the phrase to you? 7 A That's correct. 8 Q And didn't Mr. Prince also express concern 9 to you that he believed he was being followed by a 10 private investigator? 11 A Yes, he did. 12 Q I want to talk to you about April 15th. 13 Isn't it true that the defendant, Jesse Prince, ran 14 into you again at Wilson's Liquor Lounge? 15 A That's correct. 16 Q And isn't it true that he told you quote, 17 You got to come to my house for a drink? 18 A That's correct. 19 Q Isn't it true you were invited to 20 Mr. Prince's home? 21 A Yes, I was. 22 Q And that's the night you followed him to 23 his house? 24 A That's correct also. 25 Q That's how come you know where he lives? KANABAY COURT REPORTERS 345 1 A That's correct. 2 Q He took you there? 3 A Yes. 4 Q Now once inside that home, isn't it true 5 that Jesse Prince wanted to share the fact that he 6 had a, quote, pet? 7 A Definitely. 8 Q And despite his girlfriend Miss Phillips' 9 protesting that he show it to you, he showed it to 10 you nonetheless? 11 A Yes. 12 Q And when you saw it, you recognized it to 13 be a marijuana plant? 14 A Yes. 15 Q In fact, you saw it in a -- specifically in 16 a white flower pot and it was containing three to 17 four plants? 18 A Yes. 19 Q Now, after each visit, if you will, with 20 Mr. Prince, you went home that night and typed up 21 notes, correct? 22 A Yes. 23 Q And I see you're referring to things. 24 That's your reports you're referring to? 25 A Yes. KANABAY COURT REPORTERS 346 1 Q And you made these reports when it was 2 fresh in your mind? 3 A Yes, I did. 4 Q In fact, within hours of leaving 5 Mr. Prince? 6 A Right away. 7 Q And you documented that you saw three or 8 four marijuana plants in a white flower pot, correct? 9 A That's correct. 10 Q Not black? No? 11 A No. 12 Q Not orange? 13 A A white flower pot. 14 Q White. And the one you saw, the largest of 15 those three to four, was five feet tall? 16 A It's seemed to be without measuring. 17 Q And Mr. Prince stated to you that that pool 18 room was like a greenhouse, correct? 19 A Yes. 20 Q And, in fact, that same night, we're 21 talking April 15th, 2000, he actually -- Mr. Prince, 22 actually brought out a black metallic box, correct? 23 A Correct. 24 Q And when he pulled the lid off the box you 25 saw what you recognized to be marijuana, true? KANABAY COURT REPORTERS 347 1 A True. 2 Q In fact, Mr. Prince had cigarette rolling 3 papers, correct? 4 A Yes. 5 Q And Mr. Prince took his hand and filled 6 that rolling paper with that dried green substance 7 and rolled a joint, right? 8 A Yes. 9 Q You saw him lick the paper the seal it 10 tight? 11 A That's correct. 12 Q His girlfriend got the lighter and lit up 13 the joint, correct? 14 A Yes. 15 Q You were offered that joint, correct? 16 A Yes, I was. 17 Q You didn't smoke it that night, did you? 18 A No. 19 Q And you told them you couldn't smoke it 20 because you had to pass a urine test, correct? 21 A Yes. 22 Q That wasn't true the part about you needing 23 a urine test. You just made up an excuse to not 24 smoke it, right? 25 A Correct. KANABAY COURT REPORTERS 348 1 Q At any point on April 15th did you provide 2 marijuana to Mr. Prince? 3 A I never did. 4 Q Did you see him in possession of a 5 substance known to you to be marijuana? 6 A Yes. 7 Q And did you watch him as he smoked that 8 joint? 9 A Yes. 10 Q And did you smell the odor of that joint? 11 A Yes. 12 Q And was it consistent with marijuana? 13 A Yes. 14 Q Okay. I want to talk about April 22. Did 15 you again run into the defendant, Jesse Prince, and 16 his girlfriend at Wilson's Lounge? 17 A Yes. 18 Q Did you actually leave the bar for some 19 point in time with Mr. Prince and head towards his 20 car? 21 A Yes. 22 Q And when you got to that car did you smell 23 the odor of marijuana? 24 A Yes, I did. 25 Q Did you see Mr. Prince in that car smoking KANABAY COURT REPORTERS 349 1 marijuana? 2 A Yes. 3 Q Isn't it true you saw smoke, quote, 4 billowing from the car? 5 A Yes. 6 Q That's a quote in your report? 7 A That's correct. 8 Q May -- April 22? 9 A That's correct. 10 Q Soon after that occurred? 11 A Yes. 12 Q And isn't it true that again that night 13 Mr. Prince -- or, excuse me, isn't it true that 14 Mr. Prince's girlfriend Deneen told you that they 15 were being harassed and followed by the 16 Scientologists? 17 A That's correct. 18 Q So they believed all the way back in 19 April 22, 2000, that somebody was following them? 20 A Yes. 21 Q Despite believing someone was following 22 them, that didn't stop Mr. Prince from lighting up a 23 joint in a car in a public parking lot at a bar? 24 MR. DEVLAMING: Objection. 25 Argumentative. KANABAY COURT REPORTERS 350 1 THE COURT: Overruled. 2 THE WITNESS: That's correct. 3 BY MS. WARDELL: 4 Q Now, on April 24 you got your CI number? 5 A Yes. 6 Q That's when you met with Officer Crosby, 7 correct? 8 A That's correct. 9 Q Detective Crosby. And that would have been 10 273, if you remember? 11 A Beg your pardon? 12 Q NO. 273, if you remember? 13 A I don't remember. 14 Q If not, that's okay. I want to talk to you 15 about May 5th of 2000. Again you went to the lounge. 16 Is it Wilson's Liquor Lounge? Is that correct? No. 17 Actually it was Maccabees Lounge that day? 18 A Maccabees lounge. 19 Q Maccabees lounge? And at that lounge the 20 defendant arrived in his black Jeep Cherokee, 21 correct? 22 A Yes. 23 Q And you actually got into that car with 24 him, right? 25 A Yes. KANABAY COURT REPORTERS 351 1 Q And you got into the back seat, right? 2 A I like to plead the Fifth on those 3 questions. 4 Q On the questions of whether or not you got 5 into the car with Mr. Prince? 6 A Oh, I did get in the car with him. 7 Q Okay. You got into the back seat? 8 A That's correct. 9 Q I'm doing my best not to ask you about 10 anything that you did that might have been wrong. 11 Okay? If you think I do ask you, take the Fifth. 12 All right? 13 A Okay. 14 Q Mr. Prince got in the driver's seat, 15 correct? 16 A That's correct, ma'am. 17 Q And a marijuana cigarette was lit? 18 A Yes. 19 Q And you saw Jesse Prince smoke from that 20 marijuana cigarette, correct? 21 A Yes. 22 Q And you recognized that to be marijuana 23 based on your training and experience? 24 A That's correct? 25 MR. DEVLAMING: Can we have the date? KANABAY COURT REPORTERS 352 1 MS. WARDELL: Yes. May 5. 2 BY MS. WARDELL: 3 Q And you smelled that odor and you 4 recognized it? 5 A That's correct. 6 Q And it was at this meeting with Mr. Prince 7 that you were invited to the home on May 7, which 8 gave you the opportunity to bring law enforcement 9 with you, correct? 10 A That's correct. 11 Q Specifically, this event led you to opening 12 the door to bringing Mitch, right? 13 A That's correct. 14 Q And Mitch was Detective Crosby? 15 A Yes. 16 Q And on May 7 you and Detective Crosby did 17 go in Mr. Prince's house, right? 18 A Yes, we did. 19 Q And during that visit, Mr. Prince -- excuse 20 me, you were there when Mitch, who is really 21 Detective Crosby, was shown around the home? 22 A Yes, I was. 23 Q And Mr. Prince -- excuse me, Mitch, 24 Detective Crosby, actually went to the pool area? 25 A That's correct. KANABAY COURT REPORTERS 353 1 Q You had previously described the plant, 2 quote, pets that you had seen at the defendant's home 3 to Crosby, correct? 4 A Correct. 5 Q And on this visit, May 7, Detective Crosby 6 saw what you had previously described, correct? 7 A Yes, he did. 8 Q Detective Crosby corroborated what you told 9 him, correct? 10 A Yes, he did. 11 Q And, in fact, these plants were bigger than 12 when you had seen them previously when you had been 13 in the home, correct? 14 A That's also correct. 15 Q That indicates to you as a member of law 16 enforcement with experience in narcotics that 17 somebody had been growing those plants, correct? 18 MR. DEVLAMING: Objection. Calls for a 19 conclusion. 20 MS. WARDELL: Judge -- 21 MR. DEVLAMING: I think he can say what 22 he saw, but not -- I'm sorry. 23 THE COURT: Go ahead. 24 MS. WARDELL: I asked him if based upon 25 his training and experience he believed that KANABAY COURT REPORTERS 354 1 those plants had grown larger because 2 somebody nurtured them during that time 3 frame. 4 MR. DEVLAMING: Objection. That calls 5 for rank speculation. 6 THE COURT: Sustained. 7 BY MS. WARDELL: 8 Q But the plant was, in fact, larger? 9 A Yes. 10 Q On that same date, May 7, in the presence 11 of law enforcement, was a marijuana joint produced 12 from this home of Jesse Prince? 13 A Excuse me, yes. 14 Q In fact, Jesse Prince is the one that 15 introduced the word "marijuana" into that 16 conversation first by offering a, quote, smoke or a 17 joint, correct? 18 A Yes. 19 Q And his girlfriend came back out with the 20 black box that you've referenced before? 21 A That's correct. 22 Q And loose marijuana was taken from that 23 black box and a joint was rolled, correct? 24 A Correct. 25 Q Jesse Prince stood right there while that KANABAY COURT REPORTERS 355 1 joint was being rolled, correct? 2 A Yes. 3 Q It was right there in front of him? 4 A He was right there. 5 Q In fact, he smoked it in your presence, 6 correct? 7 A Correct. 8 Q And Crosby saw this, right? 9 A Yes, he did. 10 Q And this is further corroboration of what 11 you had previously told Crosby, correct? 12 A Correct. 13 Q I want to talk to you about May 30. This 14 was another incidence to where you went to 15 Mr. Prince's home, right? 16 A Yes. 17 Q Now, you believe that Crosby would be able 18 to show up undercover, but something happened with 19 the schedule and he couldn't appear, right? 20 A That's correct. 21 Q But you were already there and did not blow 22 your cover, you stayed? 23 A Correct. 24 Q Right? And at about nine-twenty Mr. Prince 25 again took you to that backyard pool area that's KANABAY COURT REPORTERS 356 1 screened-in to show you some, quote, damage to a 2 pipe, right? 3 A Yes. 4 Q And while out there, isn't it true that 5 Miss Phillips came up with a joint in her hand? 6 A That's correct. 7 Q And again you recognized this to be 8 marijuana based on your training and experience? 9 A Yes. 10 Q And you smelled the odor? 11 A Correct. 12 Q And Miss Phillips gave that lit joint to 13 the defendant, Jesse Prince, correct? 14 A Correct. 15 Q Jesse -- excuse me, actually she gave it to 16 him unlit and he, in fact, lit it, correct? 17 A That's correct. 18 Q And you saw -- 19 MR. DEVLAMING: Judge, I'm going to 20 place an objection. The information says 21 7th May, 6th August or 11th August, and I 22 think she is talking about dates not 23 alleged. I object. 24 MS. WARDELL: Judge, the Defense opened 25 the door to all of this in not only his KANABAY COURT REPORTERS 357 1 opening -- 2 THE COURT: Approach. 3 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 4 THE COURT: You said he opened this on 5 opening? 6 MS. WARDELL: In the Defense's opening 7 statements he said in this 185 days 8 something about nobody will tell you that he 9 was in possession of marijuana. He talked 10 about nobody saw rolling papers, nobody saw 11 loose marijuana, nobody saw drying things. 12 This was crossed in Crosby. All this cross 13 now opened the door to this area topic. I 14 wasn't going to do it but for him calling 15 the witness and opening it up. 16 THE COURT: I understand. Response? 17 MR. DEVLAMING: It's not in the 18 information. 19 THE COURT: Overruled. 20 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 21 THE COURT: Please proceed. 22 MS. WARDELL: Okay. 23 BY MS. WARDELL: 24 Q Mr. Gaston, we're talking about May 30. 25 We're at the point where you're outside, Miss KANABAY COURT REPORTERS 358 1 Phillips brings a joint, Mr. Prince actually lights 2 it and you see him smoke it, correct? 3 A That's correct. 4 Q Same question. You recognized it to be 5 that of marijuana and you recognized the odor, 6 correct? 7 A Yes. 8 Q Now, during this event, did you 9 specifically ask Mr. Prince how his, quote, pet 10 plants were doing? 11 A Excuse me just a moment. 12 Q That's okay. Take your time. May 30. 13 That was -- 14 A Yes. 15 Q And it's there that Mr. Prince told you 16 that his girlfriend Deneen had gotten rid of them? 17 A That's correct. 18 Q And the explanation he gave you as to why 19 she got rid of them was because they had an alarm 20 scare where the police came out and she got worried 21 that they might get busted so she pulled them all up, 22 correct? 23 A That's correct. 24 Q She said, quote, It scared me so badly I 25 buried them in the yard? KANABAY COURT REPORTERS 359 1 A That's correct. 2 Q And at no time did anybody say to you they 3 felt those marijuana plants were as a part of any 4 setup or that somebody had planted them there? 5 A Never. 6 Q In fact, they were worried that law 7 enforcement found them when they came to 8 investigative the alarm going off? 9 MR. DEVLAMING: Objection as to who 10 they is, Judge. 11 BY MS. WARDELL: 12 Q In fact, Mr. Prince believed that law 13 enforcement might have found them when the alarm went 14 off? 15 A That's correct. 16 Q During any of these visits that we have 17 talked about to date, did anybody express a concern 18 to you that they were being, quote, set up with 19 regards to these marijuana plants? 20 A No. 21 Q I want to talk about July 3. On July 3 you 22 went to the residence of Jesse Prince? 23 A Yes. 24 Q At around nine-fifteen while at that 25 residence, Mr. Prince and his girlfriend went to the KANABAY COURT REPORTERS 360 1 back bedroom, maybe to get dressed or for whatever 2 reason, they were in the back bedroom? 3 A Correct. 4 Q And that left you alone for a while? 5 A Correct. 6 Q And during that time you went out to the 7 pool area? 8 A I plead the Fifth on this question. 9 Q Just as to whether or not you went to the 10 pool area? 11 A I went to the pool area. 12 Q Okay. And to get to the pool area from the 13 inside of their home you have to go through a glass 14 sliding door, right? 15 A I did. 16 Q And you went from the kitchen to the glass 17 sliding door? 18 A Yes. 19 Q Can you also go to the pool from their 20 bedroom, if you know, from a bedroom through a glass 21 sliding door? 22 A The living room. 23 Q The living room has glass sliding doors? 24 A Yes. 25 Q And do you know about whether or not you KANABAY COURT REPORTERS 361 1 can get to the pool from the bedroom? 2 A I don't know. 3 Q Okay. And while out there in that pool 4 area on July 3, you again noticed a white ceramic 5 flower pot containing a marijuana plant, correct? 6 A Correct. 7 Q And you documented specifically a white 8 ceramic flower pot, right? 9 A Let me make sure in my documentation. 10 Q Take your time. 11 A Correct, ma'am. 12 Q Not an orange plastic one? 13 A A white ceramic flower pot. 14 Q And not a black plastic one? 15 A Right. 16 Q Okay. I want to talk to you about 17 July 13th of 2000. Again you went over to the Prince 18 residence? 19 A I was headed to that direction. 20 Q And you ultimately got there around 21 eight thirty-five? 22 A Correct. 23 Q Right? And now while there you saw 24 Mr. Prince, correct? 25 A I'm sorry? KANABAY COURT REPORTERS 362 1 Q You actually came into face to face contact 2 with Mr. Prince at his home? 3 A Yes. 4 Q And you had a conversation with him? 5 A I spoke to him. 6 Q And that conversation included marijuana, 7 right? 8 A Let me see. 9 Q Take your time. July 13? 10 A We spoke about it. 11 Q Okay. Specifically, he said that he had, 12 quote, home-grown weed, correct? 13 A Correct. 14 Q And you talked about to Mr. Prince what a 15 wonderful ability Deneen had to make those plants 16 grow, correct? 17 A Correct. 18 Q In fact, she was proud of the way she could 19 make those plants grow, right? 20 A On my observation, yes. 21 Q And, in fact, you observed that some had 22 now grown several feet tall? 23 A Correct. 24 Q And Mr. Prince expressed concern to you 25 that some of the marijuana plants had to be cut down KANABAY COURT REPORTERS 363 1 because they were becoming too large and he was 2 worried that somebody might see them, correct? 3 A Correct. 4 Q He also told you he had a yard full of 5 marijuana plants, right? 6 A At one time. 7 Q So many that he got scared and pulled them 8 out of the ground? 9 MR. DEVLAMING: Objection. Asked and 10 answered. 11 MS. WARDELL: Judge, this is a whole 12 different thing. 13 THE COURT: Sustained. Overruled, I 14 mean. 15 BY MS. WARDELL: 16 Q On that particular day he told you that he 17 got scared and pulled the plants out of the ground 18 because he had so many and he didn't want them to be 19 detected, right? 20 A Right. 21 Q He even told you on that day that some were 22 still in the yard, correct? 23 A Yes. 24 Q Now, at this point you see Mr. Prince go 25 into his bathroom and come back out with several KANABAY COURT REPORTERS 364 1 leaves of marijuana which he told you he had cut from 2 the plants in his yard, correct? 3 A Correct. 4 Q Add you saw these things in his hand, 5 right? 6 A Yes. 7 Q And you recognized them to be that of 8 marijuana leaves? 9 A Yes. 10 Q That's based on your training and 11 experience? 12 MR. DEVLAMING: What date? 13 MS. WARDELL: July 30. 14 THE WITNESS: Excuse me. The 13th. 15 BY MS. WARDELL: 16 Q In fact, he went further than that and he 17 showed you how to bind a leaf with dental floss, 18 correct? 19 A Correct. 20 Q He talked to you about how he dried the 21 leaves and how he prepared them to smoke them, 22 correct? 23 A Correct. 24 Q In fact, he went and got that same black 25 tin that's come up a couple of times and he actually KANABAY COURT REPORTERS 365 1 rolled a joint in your presence July 13th, correct? 2 A Correct. 3 Q You watched him do that? 4 A I watched. 5 Q And that joint was smoked? Mr. Prince 6 smoked that joint in your presence? 7 A Yes, he did. 8 Q You recognized the odor and the appearance 9 to be that of marijuana? 10 A Yes. 11 Q I want to talk to you about July 28th of 12 2000. Again you went to home of Jesse Prince around 13 8:30 p.m.? 14 A I'd like to plead the Fifth on this. 15 Q On going to the home of Jesse Prince on 16 July 28th? To go to his house on July 28th of 2000? 17 MR. DEVLAMING: Judge, if he answers 18 the question he opens up cross-examination. 19 THE WITNESS: I'd like to plead the 20 fifth on that. 21 BY MS. WARDELL: 22 Q Okay. On July 28th of 2000, did you see a 23 marijuana cigarette in the home of Jesse Prince? 24 A I'd also like to plead the Fifth to that 25 question. KANABAY COURT REPORTERS 366 1 Q On July 28th did you see a lit, rolled 2 marijuana cigarette at the home of Jesse Prince? 3 A I'd also like to plead the Fifth. 4 Q On July 28th of 2000, did you see 5 Jesse Prince at his home with a lit rolled cigarette? 6 A I will plead the Fifth on that again. 7 Q On July 28, 2000, did you see Jesse Prince 8 smoke a lit rolled marijuana cigarette? 9 A I will plead the Fifth. 10 Q On July 28th of 2000, did you get into the 11 car with Jesse Prince and drive to a sports pub named 12 Billy G's on Cleveland Avenue? 13 A I would plead the Fifth. 14 Q During that drive to Billy G's on July 28th 15 of 2000, was a marijuana joint passed amongst the 16 occupants of the car? 17 A I'll plead the Fifth. 18 Q On July 28th of 2000, while in that car did 19 you see Jesse Prince with a lit marijuana cigarette? 20 A I'll plead the fifth on that. 21 Q Did you see Jesse Prince with an unlit 22 marijuana cigarette on July the 28th of 2000 in that 23 car? 24 A I'll plead the Fifth. 25 Q After leaving Billy G's, did you go to the KANABAY COURT REPORTERS 367 1 beach area with the defendant and others where a 2 joint was produced? 3 A I'll plead the Fifth on that. 4 Q Actually we would be talking about 5 July 29, 2000, just around one-thirty where the date 6 would change from the 28th to the 29th. On the 29th 7 of July of 2000, early morning hours, did you see the 8 defendant handle a lit marijuana joint while at the 9 beach? 10 A I will plead the Fifth. 11 Q On August 6, 2000, did you accompany law 12 enforcement, specifically Detective Crosby, who was 13 still playing the role of Mitch, to the defendant's 14 residence? 15 A Yes. 16 Q And while at that home did you again see a 17 marijuana plant out in the pool area? 18 A Yes. 19 Q And were you present when law enforcement, 20 Detective Crosby, saw that same marijuana plant? 21 A Yes. 22 Q And during that visit of August 6th of 2000 23 did you hear Jesse Prince brag to Officer Crosby 24 about how healthy and large the plants had become? 25 A Yes, I did. KANABAY COURT REPORTERS 368 1 Q And you also heard him tell -- you also 2 heard Jesse Prince tell the detective that he had 3 some fifteen other plants he had to pull up because 4 he didn't -- 5 A That's correct. 6 Q And the plants that you saw that date 7 August 6th of 2000 were much larger than the ones you 8 had seen previously? 9 A That's correct. 10 Q Did Mr. Prince tell you on that date that 11 he only had, quote, a few roaches left? 12 A Yes. 13 Q Sorry? 14 A Yes. 15 Q And that was in response to you or 16 Detective Crosby asking if you could purchase some to 17 take with you to the Keys? 18 A Yes. 19 Q He told how he only had a few left, 20 correct? 21 A That's correct. 22 Q At any point in your investigation did 23 Mr. Prince express concerned with regards to somebody 24 rummaging through his garbage? 25 A Yes. KANABAY COURT REPORTERS 369 1 MS. WARDELL: Judge, I don't have 2 anything further. 3 THE COURT: Mr. DeVlaming, do you wish 4 to redirect? 5 MR. DEVLAMING: Just a couple, Judge. 6 REDIRECT-EXAMINATION 7 BY MR. DEVLAMING: 8 Q Mr. Gaston, early in the cross-examination 9 you said that Mr. Prince brought up the word 10 "Scientology." During the course of your 11 investigation, did he say that he had gone to 12 California to help somebody leave the church? 13 A At one point I remember something to that 14 effect. 15 Q Somebody wanted to leave the church and he 16 was flying to California to help them? 17 A That's what he told me. 18 Q On the August 6 date when you went back 19 with Detective Crosby, did you try to buy some 20 marijuana from Mr. Prince? 21 A I'll plead the Fifth, sir. 22 Q The fact of the matter is, Mr. Gaston, you 23 did try to buy marijuana from him and he told you he 24 didn't have any, didn't he? 25 A On August 6? KANABAY COURT REPORTERS 370 1 Q On August 6. 2 A Yes, sir. That was the last day. 3 Q Right. He told you he didn't have any? 4 A Yes, sir. 5 MR. DEVLAMING: That's all. 6 THE COURT: Based on those questions, 7 do you have any others? 8 RECROSS EXAMINATION 9 BY MS. WARDELL: 10 Q He told you he didn't have any for sale. 11 That's because he only had a few roaches left? 12 A That is correct. 13 Q Not that he didn't have any. That he 14 didn't have any to sell? 15 A That's correct. 16 MR. DEVLAMING: Nothing further, your 17 Honor. 18 THE COURT: Jurors have any questions 19 of this witness? Sir, you may step down. 20 You are still subject to subpoena. Do you 21 understand? 22 THE WITNESS: Yes, sir. 23 THE COURT: All right. I don't know 24 how long we've been going. How are you all 25 doing? You need a break? You all ready to KANABAY COURT REPORTERS 371 1 keep rolling? You need to approach? 2 MS. WARDELL: I just need a minute, 3 Judge. 4 THE COURT: Do you need to approach? 5 MR. DEVLAMING: No. She needs to go. 6 THE COURT: Oh, you got to go. And are 7 you all right? Do you want to take five? 8 MR. DEVLAMING: Let's take five. 9 THE COURT: All right. Let's take a 10 five minute break. 11 (A RECESS WAS HAD) 12 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 13 END OF VOLUME II 14 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 15 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS