617 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 V ) 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 24, 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 618 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 619 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 620 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 621 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 622 1 P-R-O-C-E-E-D-I-N-G-S C-O-N-T-I-N-U-E-D 2 (IN THE PRESENCE OF THE JURY) 3 THE BAILIFF: The jury's in the 4 courtroom and seated, your Honor. 5 THE COURT: Ladies and gentlemen, both 6 the State and the Defense have now rested 7 their cases. The attorneys will present 8 their arguments. Please remember what 9 the -- that what the attorneys say is not 10 evidence. However, do listen closely to 11 their arguments. They are intended to aid 12 you in understanding the case. Each side 13 will have equal time, but the State is 14 entitled to divide this time between an 15 opening argument and a rebuttal argument 16 after the opponent has spoken. 17 Counsel for the State prepared to proceed 18 to closings? 19 MS. WARDELL: Yes, your Honor. 20 THE COURT: You may proceed at this 21 time. 22 MS. WARDELL: Thank you. May it please 23 the Court, Counsel. 24 Members of the jury, at the beginning of 25 this trial I asked that you return a verdict of KANABAY COURT REPORTERS 623 1 guilt based on the observations of law 2 enforcement, based upon the evidence that law 3 enforcement seized, and I'm once again asking 4 you to do that. 5 This is a case about the corroboration that 6 law enforcement obtained. This is not a case 7 where law enforcement went out and based solely 8 on the word of Barry Gaston or Brian Raftery 9 made an arrest or took evidence. 10 You may not like the snitch, you may not 11 like the person behind the snitch, but that 12 snitch is for another day and another time. 13 This isn't the State of Florida versus 14 Barry Gaston. His day is coming. This isn't 15 the State of Florida versus Scientology. It's 16 not the State of Florida versus Deneen Phillips. 17 Today is the State of Florida versus 18 Jesse Prince. And it's his action, his behavior 19 that you should stay focused on. It is time 20 that Jesse Prince be held accountable for his 21 part in this. It is time for Jesse Prince to be 22 responsible for what he did, his actions. He is 23 a grown man. It's time to stop shifting the 24 blame. It's time to focus on what Jesse Prince 25 did. KANABAY COURT REPORTERS 624 1 What the Defense is asking you to do in 2 this case is to take sides. The Defense wants 3 this to be Lisa McPherson Trust versus 4 Scientology. And, members of jury, I don't work 5 for Scientology. I answer to one person, and 6 that's my mother and she is not here. I don't 7 answer to Scientology, nor should you. And you 8 shouldn't be made to feel that if you return a 9 verdict of guilty in this case that you are in 10 any way condoning Scientology, its practices and 11 its beliefs. 12 I don't know much about the practices and 13 beliefs, and I don't care to know about it. 14 They don't control me, they don't tell me what 15 to do. They don't tell me how to put on this 16 case. I go to church, I put my money in the 17 plate and I come home. I don't follow the 18 Scientologist's beliefs, and you should not be 19 made to feel that you're a bad person or that 20 you are dirty in any way if you convict 21 Mr. Prince because Scientology hired the source 22 that led to law enforcement's involvement. 23 There's an adage from law school, if you 24 have the facts, you argue the facts; if you have 25 the law, you argue the law; if you don't have KANABAY COURT REPORTERS 625 1 either, you sit up here and you pound on the 2 podium. Well, I'm not going to yell at you and 3 I'm not going to scream at you. I'm going to 4 ask you to rely on the facts in this case to 5 convict Mr. Prince. 6 And I want to take you back to May 7th of 7 2000, the first time law enforcement enters his 8 home. Regardless of who brought up the subject 9 of this smoking of marijuana, it was brought up 10 and it was done in the presence of law 11 enforcement. According to law enforcement, the 12 defendant brought it up. "Hey, you guys want to 13 smoke?" According to Miss Phillips, Trinidad 14 brought it up. Who cares? It came up. He was 15 a willing participant. It was in his home. The 16 joint was rolled. A joint was smoked. He 17 touched it. He possessed it. 18 And you're allowed to believe that that was 19 marijuana based on the observation of law 20 enforcement. I don't have to have a lab witness 21 to come in and say, "I tested that joint that 22 was smoked." Law enforcement can tell you based 23 on their training and their experience, the 24 odor, the appearance, that it was marijuana. 25 Miss Phillips told you it was marijuana. That KANABAY COURT REPORTERS 626 1 is not in dispute. 2 This case could stop right there. This 3 case could stop May 7 in his computer room 4 when he put that joint in his fingers and 5 smoked it. It doesn't have to stop there. 6 You know, members of the jury, if 7 Scientology was so controlling in this case, 8 then why don't I have a count for every time the 9 man was around marijuana? Why isn't there a 10 separate count for May 7, a separate count for 11 August 6, a separate count for August 11? I 12 could have stacked that man until I'm blue in 13 the face, and I didn't do that. I'm trying to 14 be reasonable. 15 And if you remember in the beginning of 16 this case, Mr. DeVlaming mentioned to you that 17 this was a misdemeanor. Okay? And he talked a 18 lot about, well, you didn't see Jesse watering 19 the plant, you didn't see Jesse put fertilizer 20 on the plant, you didn't see him tend to the 21 plant. You know what? All that goes to a 22 charge called cultivation of marijuana. 23 Cultivation of marijuana is a felony. 24 Cultivation of marijuana is not the charge that 25 Mr. Prince is charged with today. He is charged KANABAY COURT REPORTERS 627 1 with misdemeanor possession. It's another 2 windfall he got in this case. You know, the 3 State is trying to be fair. The State is trying 4 to be reasonable. 5 Judge Andrews is not going to instruct you 6 that in order for you to find him guilty of 7 possession the State has to prove he watered 8 that plant. That's not what he is going to tell 9 you. 10 He is going to tell you that possession can 11 be actual or constructive. Now actual, that's 12 the gimme. That's when he has the joint in his 13 hand. There's no doubt about that. That's 14 actual. Constructive is when the thing -- and 15 here the thing is going to be marijuana, whether 16 it be a joint or a plant, but constructive is 17 when the thing is in a place over which he has 18 control. 19 There's two ways to prove constructive. 20 Number one, is it in a place over which he has 21 control? Well, the joint was in his hand. All 22 right? But let's take that aside. Let's go to 23 the plant in the pool area. That's his house. 24 That's his pool. He goes out there. Does he go 25 on daily basis? Who knows? Who cares? It's KANABAY COURT REPORTERS 628 1 his pool. 2 His own girlfriend told you he knew it was 3 there. It was there for three months. And, 4 sure, he was throwing some plants away, but he 5 chose not to throw the bigger one away. Did he 6 know it was there? Yes. Did he know it was 7 marijuana? Yes. The thing is in a place over 8 which he, Jesse Prince, has control. Okay? 9 Possession can be joint. You don't have to 10 say, well, gee, Deneen did it too, so therefore 11 I can't convict Mr. Prince. No. Possession can 12 be joint. Two people can possess the same 13 object. And, like I said, Deneen Phillips is 14 another day, another time. Today is 15 Jesse Prince, did Jesse Prince have control over 16 that thing on the porch. 17 And I would suggest to you based on 18 everything you have heard about all the things 19 that have been going on during that time frame 20 he absolutely had control over that plant. Now, 21 did he go out and touch it every day and stroke 22 it and pet it? No. I'm not saying that. I'm 23 saying it was on his property, and he knew of 24 its what they call illicit nature. Illicit 25 means illegal or the fact that it was a KANABAY COURT REPORTERS 629 1 controlled substance. 2 So he knew, and that's what the judge is 3 going to use, did he know of its, quote, illicit 4 nature? Of course he did. He smoked marijuana. 5 He knew it was marijuana. So he knew of its 6 illicit nature. So that's -- you know, so 7 that's May 7th. 8 But let's go further. Let's go to August. 9 And, same thing, law enforcement goes back to 10 corroborate. When you serve a warrant it's got 11 to be close in time to your observation. You're 12 not going to go in August to serve a warrant on 13 what you saw in May. You need to go back one 14 more time. 15 And you heard Largo's was a small 16 agency. Only one guy was doing all the 17 narcotic investigations with the exception 18 of they had that two months when they tried 19 to get a narcotics task force he, Bruno, 20 said he was on. But other than that, it's a 21 one-man show. And Jesse Prince wasn't the 22 only thing he had going, plus he had knee 23 surgery. 24 So it basically got to the point where here 25 it is August and, you know, he was going to KANABAY COURT REPORTERS 630 1 finish out this investigation. So he doesn't go 2 and get his warrant based upon what he saw in 3 May. He goes back into the house. Is the stuff 4 still there? Yeah, it's still there. Miss 5 Phillips told you she knew it was there back in 6 June or late spring. Mr. Prince knew it was 7 there back in June or late spring. It's still 8 there. 9 Now, is that the exact plant that was seen 10 in May? Who knows? Who cares? Crosby said 11 when he saw it the first time it was four or 12 five plants. Well, we know she had tons of 13 plants out there, and according to her own 14 testimony they were springing up everywhere and 15 they tried to pull them out. So who cares if 16 the plant that was seized was the plant that was 17 seen in May? It doesn't matter. Either way 18 it's marijuana. Either way it's there. 19 And Mr. Gaston testified that when he saw 20 it it was in a white ceramic plant. That's just 21 more marijuana on their property. The officer 22 said when he saw it few days before the warrant 23 he saw marijuana in a black plant. He saw one 24 stalk with what appeared to be -- he saw, sorry, 25 one pot with what appeared to be four or five KANABAY COURT REPORTERS 631 1 plants in it. 2 Well, we know he seized one pot, one plant. 3 So is the marijuana that Officer Crosby saw on 4 August 6 the same marijuana that was seized on 5 the 11th? Who knows? Who cares? I don't have 6 to prove that. 7 I only have to prove that on any one of 8 those three days he was in possession, and the 9 fact that three different pots are involved just 10 lends credence to the State's theory that it was 11 out there and it was growing. It wasn't a 12 happenstance. They knew -- they knew what they 13 were doing. They knew it was out there. And 14 they certainly enjoyed smoking it. You know? 15 And, by the way, you know, I didn't bring 16 out all this extra stuff that was going on. If 17 you recall, in my case I brought in two officers 18 to talk you about May 7 and about August 6 and 19 August 11. I didn't do a bunch of trash talking 20 about all this stuff going on at Wilson's bar 21 and all this, you know, poison, if you will, 22 against Mr. Prince. I didn't do that until 23 what? I didn't do that until Gaston starts 24 taking the stand and the Defense goes after him. 25 Well, you know, if they want to play that KANABAY COURT REPORTERS 632 1 game, okay, I got some information too and I'm 2 going to bring it to your attention. But I'm 3 not asking you to convict him based upon all 4 that extra stuff, but all that extra stuff goes 5 to show you this wasn't a setup. All that extra 6 stuff goes to show you that Mr. Prince knew 7 exactly what he was doing, and he was absolutely 8 one hundred percent a willing participant. 9 You know, there is an old story from back 10 in England when hunters would go after the fox. 11 They would get out there and they would have 12 trainers, and they would bring their dogs and 13 they wanted to see who was going to be the best 14 dog to give it to the king because the king 15 would take the dog on the next fox hunt. 16 They gave the best dog to the king. And 17 the way they did this was they set the fox loose 18 on a set trial. Before they set that fox loose 19 they took a bunch of red herrings, stinky, 20 smelly fish, and they drag them along the trail 21 trying to throw the dog off the track, and they 22 let the dogs free. 23 Now, all those dogs that got distracted and 24 went off after the red herring scent, that's not 25 the one the king wants. He wants the dog that KANABAY COURT REPORTERS 633 1 can stay right there on the track and follow it 2 and get to the fox at the end. That's the dog 3 that the king's going to take on his hunt the 4 next week. 5 Members of the jury, don't get off the 6 track in this case. All this stuff about 7 Scientology, all this stuff about fair game and 8 all these other issues that are coming into play 9 are designed to get you to take your attention 10 and your focus off of Jesse Prince. All that 11 other stuff is red herrings. The Defense wants 12 to talk about everybody in the world but Jesse 13 Prince. They want you to look at everybody's 14 conduct in this case but Jesse Prince. 15 If you'll notice, there's not one piece of 16 undisputed uncontroverted evidence as it comes 17 from law enforcement. The Defense hasn't 18 attacked that Officer Crosby didn't see what he 19 saw. There's no attack that Officer Bruno 20 didn't seize what he seized. There's nothing to 21 dispute that Jesse Prince was in possession of 22 marijuana. 23 They want a freebee, if you will, or a 24 walk pass, if you will, solely because 25 Scientology is involved. They want you to KANABAY COURT REPORTERS 634 1 be so poisoned against the idea -- the 2 ideologies and policies and the things that 3 Scientologists believe that you dislike them 4 so much you're willing to cut him a break 5 for no reason other than the fact that he 6 used to be former Scientologist. 7 Members of the jury, a former Scientologist 8 should not be able to hide behind that shield. 9 Just because you used to practice that religion 10 and now you don't anymore, that's not a one-way 11 ticket to do whatever you want whenever you want 12 because when you're caught you can just say, 13 "Hey, the Scientologists were involved. They 14 hate me. The set me up. I can walk into Publix 15 and steel whatever meat I want because there 16 might be a cashier that that used to work for 17 Scientology now. They set me up. I can do it." 18 He is not above the law. He is not untouchable 19 just because he used to be a former 20 Scientologist. 21 I want you to think back to jury selection 22 when we talked about the two cashiers at K-Mart. 23 Number one really didn't like number two. 24 Number one saw number two conceal merchandise. 25 You didn't want to convict number two based KANABAY COURT REPORTERS 635 1 solely on number one. You wanted the manager to 2 get involved. You wanted the manager to 3 intervene and corroborate what cashier number 4 two did. 5 That's exactly what we had here, and each 6 of you told me you would return a verdict of 7 guilt if the manager got involved and 8 corroborated. And in this case Scientology is 9 cashier number one, and Jesse Prince is cashier 10 number two. They saw him doing it. You may not 11 like how they got involved, but they saw him 12 doing it. And the manager is Crosby. He 13 stepped in between and made his independent 14 observations and his independent evidence in 15 this case. 16 Same thing with Darryl Strawberry. 17 Remember the crackhead off the street that 18 waited for him to get out of his counseling 19 session, "Come on, Darryl, get in my car." 20 Light up the crack pipe, put in front of his 21 nose. That's one of the most odious, 22 offensive-type things, you know, in our society, 23 for somebody smoking crack all day every day and 24 take it and stick it up under somebody's nose 25 when you know they're recovering, and that KANABAY COURT REPORTERS 636 1 person did that. 2 But you know what? Darryl Strawberry 3 succumbed. He took a smoke, a hit as they call 4 it, off that pipe. And each of you agreed that 5 Darryl Strawberry, no matter how repugnant that 6 crackhead was -- 7 MR. DEVLAMING: Your Honor, I don't 8 like to interrupt closing arguments, but I 9 would like to approach and object about the 10 use of a case that is mentioned by name. I 11 think it's improper. I made the same 12 objection in voir dire, and I'd like to 13 affirm that objection. 14 THE COURT: Overruled. 15 MS. WARDELL: No matter how repugnant 16 that crackhead was, each of you agreed and 17 made a promise to the State that 18 Darryl Strawberry should be held accountable 19 for his part, for his actions. And in that 20 case a judge sentenced him. The judge gave 21 him what she believed to be the appropriate 22 sentence. 23 And in this case you've got to trust that 24 Judge Andrews, who's been around long enough, 25 seen enough, experienced enough, that he's going KANABAY COURT REPORTERS 637 1 to do the right thing in this particular case. 2 And if for one minute, one fleeting second 3 in the course of this two days, you stopped and 4 you thought, gee, I wonder what he is going get 5 or I wonder what's going to happen to him, if 6 you're looking and for one second the thought 7 has entered your mind, then you've already 8 convicted him. You've already found him guilty 9 if you're wondering what is going to happen. 10 You're going to have to trust Judge 11 Andrews, learned Judge Andrews, to do the right 12 thing in this case and impose the appropriate 13 sentence. He's heard all the facts. He'll do 14 the right thing, and I'm asking you to do the 15 right thing, rely on the testimony that you 16 heard from law enforcement, and convict 17 Mr. Prince for his actions and for his role in 18 what he did. 19 THE COURT: Are you done? Thank you, 20 Counsel for the State. Counsel for the 21 Defense wish to make a closings argument? 22 MR. DEVLAMING: Thank you, 23 Judge Andrews. Please the Court. 24 Members of the jury, we told you it would 25 be probably be a two-day trial, well, we were KANABAY COURT REPORTERS 638 1 right. You'll be getting the case probably -- 2 it's twenty minutes after three. Probably in 3 about sixty minutes. 4 In 1789 Thomas Jefferson made a comment. 5 He said that "trial by jury is the only anchor 6 imagined by man by which a government is held to 7 the principles of its constitution." 8 Thank God that we have trial by jury, 9 because juries get to administer the correct 10 result in every case. They get to sift through 11 evidence and make the decision whether or not 12 there is fundamental fairness in the way a 13 fellow citizen is treated and handled in our 14 criminal justice system. 15 No one grows a marijuana plant on purpose 16 in a dead rubber tree plant planter. You don't 17 do it unless it's somebody threw something in 18 it, unless someone had the ability to have 19 access to it. Because this is what this trial, 20 ostensibly, if you believe the prosecutor's 21 theory, is all about. This. This is what it's 22 all about. 23 Now, let's take a look at the charging 24 document here, if this thing works. You'll see 25 Miss Wardell's signature on the bottom of the KANABAY COURT REPORTERS 639 1 information filed in this matter. Let's see 2 what the State has to prove. Jesse Prince, Jr., 3 in the County of Pinellas, State of Florida, on 4 the 7th day of May -- 5 Let's take these one at a time. The 7th 6 day of May. Members of the jury, that's the 7 first day that Detective Crosby and Barry Gaston 8 went to the Prince residence. That's the day 9 that they want you to convict because Mr. Prince 10 was allegedly smoking marijuana. That's a 11 problem here. 12 Number one, can you imagine, can you 13 imagine our court system when we bring somebody 14 in and say, Frank, did you see Bill smoke 15 marijuana? Yep. Did you smell it? Yep. 16 Marijuana? Yep. And build a case on that. And 17 that's what they say. 18 There's no lab reports. There's no proof. 19 They want you to be able to convict on the basis 20 of May 7th because somebody said I saw it. I 21 saw somebody smoke marijuana. Can you imagine? 22 Can you fathom how many people will come through 23 this system because somebody says I saw somebody 24 else. 25 But there is a bigger problem with May 7 KANABAY COURT REPORTERS 640 1 and you know exactly what it is. It's Mr. Fifth 2 Amendment. It's Mr. Fifth Amendment. Now you 3 know, don't you? Now you know why he took the 4 Fifth. And it was Deneen Phillips that told you 5 why he took the Fifth. A person who after April 6 24 became a member of law enforcement -- and 7 that's what an agent is. 8 A confidential informant becomes an agent 9 of law enforcement. He becomes a pseudocop when 10 he's given that authority. And before that day, 11 before that day, he's the very one that provided 12 the drug that was smoked by Detective Crosby. 13 He's the one that brought it into the house. He 14 is the one that offered it. He is the 15 individual that is responsible for it, and now 16 the government comes forwards and says, ah, now 17 you're guilty of possession. 18 Of course he wouldn't answer those 19 questions. I couldn't give that guy immunity. 20 I couldn't. I don't have the ability to give 21 any immunity. But we know now, don't we, why he 22 took the Fifth Amendment. He told us exactly 23 what it is. 24 So on May 7 what we have is government 25 produced drugs, that's uncontroverted. They KANABAY COURT REPORTERS 641 1 haven't brought Gaston back on the stand, give 2 him immunity and said, okay, fess up. They 3 haven't done that. So it goes uncontroverted 4 that the very marijuana they want you to convict 5 this man for was provided by the very government 6 that is prosecuting him. 7 And/or the 6th day of August. Now, the 8 6th day of August is the one where Gaston 9 came by and tried to get him to sell 10 marijuana. Remember that? "Jesse, you got 11 any? We're going down to the Keys. We want 12 you to sell us some marijuana." 13 "Don't have it." 14 All that stuff that he gave him now is 15 gone. All that stuff that Gaston's buddy at 16 Wilson's gave is gone. "I don't have any to 17 sell you." So he didn't smoke any marijuana. 18 He didn't have any left. If they're growing all 19 these plants and curing all this dope, they got 20 plenty of marijuana. All they got is what came 21 out of the that little, pot and we'll get to 22 that one in minute. 23 So on the 6th, do you remember what Crosby 24 said? Remember what he said he saw there? I 25 showed him a black pot. To be honest with you, KANABAY COURT REPORTERS 642 1 I found it on the side of the road. Did it come 2 in a black pot? 3 Yeah, it came in a black pot. This is the 4 6th -- in the black? 5 Yeah. 6 You see any evidence of a black pot? Did 7 you see any evidence of any marijuana coming 8 from a black pot? Did you see any lab report or 9 any evidence coming from a black pot on the 10 6th?" 11 No, no, no, and no. 12 So now we're back to day he was arrested. 13 The people came into the home the way Deneen 14 described. And maybe that's the way it's 15 supposed to be. I don't know. I don't know. 16 But they went through the home and went through 17 every room in the home. 18 If they would have found any contraband the 19 officer said we would have been able to take it. 20 It's called a Plain View Doctrine. You can take 21 anything you see in plain view, any marijuana 22 drying, any marijuana that was laying there 23 drying out, no grow lamps, no curing process, 24 nothing like that. 25 Every room in the house they went through KANABAY COURT REPORTERS 643 1 to make sure there was nobody in it. Nothing. 2 And of course the Prince family was asleep. 3 They had no idea that was going to happen, 4 except that one guy filming on the other side of 5 the road. 6 Prince did not cultivate that plant. 7 Prince did not plant that plant. Prince did not 8 move that plant, water that plant, do anything 9 to the plant that was taken out of this bag, 10 that little scrawny little thing that they came 11 and brought six SWAT team members to take that 12 little scrawny plant out of that house. He 13 never did anything to that plant. 14 But really this is what this trial is not 15 about. And you know it's not about that little 16 scrawny plant. You know what this trial is all 17 about is that. It's what we started from the 18 very beginning of this case. You know it's a 19 law firm that hired private investigators. 20 And they put up these, I call them 21 firewalls. You know they want everybody 22 didn't -- you know, you can get to one but you 23 might not be able to get to the other. The 24 manner in which they worked, Fabrizio works then 25 with Raftery, who reports back to Shaw, but Shaw KANABAY COURT REPORTERS 644 1 doesn't have any connection with Fabrizio. 2 Firewalls. Firewalls, so you can't get back the 3 parent company. Fabrizio dealing with Gaston. 4 How can he take the Fifth Amendment? How 5 can there be a fair prosecution in any case 6 where you're asking how did you get into that 7 house? What did you say to these people? What 8 was in your pocket? What did you bring to these 9 people? You know Fabrizio says -- I think it 10 was Fabrizio. I said, you know, "Does Jesse 11 have a problem with alcohol?" 12 "Yeah, he drinks too much." 13 You bring alcohol to somebody who drinks 14 too much? Do you bring dope to someone that you 15 later then say you're in possession of that? 16 You know, members of the jury, a church, a 17 real church, is a house of God. You tell me 18 what house of God hires somebody like Gaston to 19 be able to infiltrate a life, to get into his 20 home, to get into his family, to get into his 21 house, his house, his home? And they're telling 22 him, you know, "the Church of Scientology is 23 going through my garbage. They're looking after 24 me. They're following me." And, you know, I'll 25 bet you he was laughing. I bet he was laughing KANABAY COURT REPORTERS 645 1 because he was thinking, yeah, I'm in your home. 2 This is a henhouse and I'm the fox. 3 But he befriended that family. The kids 4 thought the world of Barry Gaston, and the most 5 he came up with was that scrawny little plant. 6 And what they hope you'll do, and you know who 7 when I say the word "they" hope you do, is that 8 you will convict him in this case. 9 But if you remember what the testimony was 10 of the investigators in this case, they need 11 this conviction to impeach him, to discredit him 12 in another civil case where there is a lot at 13 stake. So is this case about -- all about 185 14 days of going in, of meeting the ladies, Gaston 15 coming into town night after night and going to 16 Prince's house, becoming a CI, holding dope, 17 bringing dope, possessing dope, handing dope by 18 Gaston, until such time on the very end they get 19 a little scrawny little plant? 20 That's not what this case is about. This 21 is what they want, and this is what they think 22 they got. So if we go through dates, 7th of May 23 is the very marijuana provided by a government 24 agent; the 6th of August, Jesse refuses to sell 25 any marijuana but there's something in a black KANABAY COURT REPORTERS 646 1 pot out by -- that's attended by his girlfriend 2 among other tropical plants. On the 11th day of 3 August I asked the officer, I said, "Did you 4 ever see Jesse in possession of that pot?" He 5 said no. 6 So legally they failed completely to prove 7 this case, but I want to get by that because you 8 know he was set up. You know what happened in 9 this case. I think when you scrutinize it and 10 you listen and you talk about the witnesses in 11 this case, you talk about Gaston when he was 12 testifying, about the things he said, he didn't 13 say -- 14 And you know what? I know you saw in the 15 back of the courtroom what was happening. I 16 know you did because I looked at you. You saw 17 it as well as I. You saw the signals. You saw 18 what was going on in this case. 19 You know with all these cameras around here 20 this is not just a simple marijuana case of some 21 dead rubber tree. You know it's more than this. 22 And what I'm asking you to do is don't do the 23 church's biding. Don't convict this man because 24 of this type of evidence where the reason for 25 conviction is totally unfair and it's unjust, KANABAY COURT REPORTERS 647 1 and it's totally unwarranted for Mr. Prince to 2 have to suffer. Thank you. 3 THE COURT: Thank you, Mr. DeVlaming. 4 Counsel for the State, you wish to make 5 rebuttal argument? 6 MS. WARDELL: Yes. 7 THE COURT: Please proceed. 8 MS. WARDELL: Members of the jury, two 9 wrongs don't make a right. And let's get 10 something straight here. I'm not happy with 11 Barry Gaston. He's no friend of mine. I 12 didn't call him and I didn't give him 13 immunity. If I wanted to pour the trash on 14 thick from Mr. Prince and I wanted to just 15 sprinkle everything against him, I certainly 16 could have. 17 I could have called Barry Gaston in my case 18 in chief. All I had to do was hand him a 19 subpoena and say, Sit up there and tell me all 20 the dirt you got, and I could have done it, and 21 I didn't. I would love that. I would love that 22 because I could prove my case in a heartbeat. 23 Okay? 24 Now, I want to talk to you about this 25 supposed, quote, impeachment that the Defense KANABAY COURT REPORTERS 648 1 has several times brought up to you to make you 2 think your doing Scientology a favor. All 3 right? When a witness takes the stand in any 4 case, be it criminal or civil, the only thing -- 5 MR. DEVLAMING: Objection, Judge. May 6 I approach? 7 THE COURT: Please. 8 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 9 MR. DEVLAMING: Your Honor, if she is 10 going to go and start talking about law and 11 how -- what you can use to impeach somebody 12 on the basis of a conviction or a statement 13 involving, I guess, false statements or what 14 have you, impeaching information is not 15 necessarily testimonial. In other words, 16 you can impeach somebody by discrediting 17 their character to other people without 18 necessarily being in the courtroom. 19 So I would object to her telling the jury 20 the law in this respect. 21 MS. WARDELL: Judge, I'm allowed to 22 argue any law that is out there. If 23 Mr. DeVlaming had a problem with that, he 24 was the one that raised it. And right there 25 there's a misleading inference to these KANABAY COURT REPORTERS 649 1 jurors, and I'm certainly entitled to at 2 least argue that this conviction isn't going 3 to be used as impeachment, and that's what 4 I'm going to say, this conviction. Because 5 that's the law. This misdemeanor conviction 6 will not come out in that case. 7 MR. DEVLAMING: Judge -- sorry. 8 MS. WARDELL: I mean, he opened the 9 door. I certainly wouldn't have gone there 10 but for I was waiting for it. I knew he had 11 brought it out in his case. I wasn't going 12 to mention it until he brought it up in his 13 closings. 14 MR. DEVLAMING: But it's not -- 15 MS. WARDELL: It's fair for me to 16 respond. 17 MR. DEVLAMING: Sorry. If I would have 18 said testimonial impeachment, I think she's 19 absolutely right. I didn't. 20 THE COURT: If you would have said 21 testimonial impeachment why is that 22 different? 23 MR. DEVLAMING: Because they when take 24 the stand what she is going to explain to 25 the jury may very well be accurate. But you KANABAY COURT REPORTERS 650 1 can impeach somebody not necessarily in the 2 courtroom. You can impeach their character. 3 You can give it to the news media. You can 4 put it in the internet. You can impeach 5 them in many ways. 6 THE COURT: Overruled. 7 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 8 MS. WARDELL: Okay. I want to talk to 9 you about impeachment and why what 10 Mr. DeVlaming said to you isn't exactly true 11 and why this isn't going to help the 12 Scientologists in furtherance of their 13 impeachment. All right? When a witness 14 takes the stand and comes in and testifies, 15 to impeach them with regards to a criminal 16 conviction it has to a felony. Not only 17 does it have to be felony, it's -- 18 MR. DEVLAMING: Judge, I'm going to 19 object. That's a misstatement of the law. 20 It doesn't have to be a felony. 21 THE COURT: Sustained. Hold on. Let 22 me finish. I'm going to overrule the 23 objection for a moment. There is two ways. 24 MS. WARDELL: I'm going over the first 25 one first. KANABAY COURT REPORTERS 651 1 Be it law enforcement or be it a citizen 2 such as Barry Gaston, Raftery, Miss Phillips, if 3 they have previously been convicted of a felony, 4 then opposing counsel is entitled to say, 5 "Ma'am, have you ever been convicted of a 6 felony?" 7 "Yes, I have." 8 "Ma'am, how many times?" 9 "Two." 10 You didn't hear that in this case because 11 it wasn't appropriate for any of these 12 witnesses. Okay? So if Mr. Prince is 13 convicted -- this is a misdemeanor. Defense 14 told you that. 15 The fact that he is convicted of a 16 misdemeanor would not come out in any civil 17 trial between Scientologists and the Lisa 18 McPherson Trust. Nobody is allowed to ask him 19 in court when he is testifying, sir, have you 20 been convicted of a misdemeanor possession of 21 marijuana? It's inadmissible. It's not coming 22 in. 23 The second way to impeach somebody based 24 upon a conviction is if that crime involved, 25 quote, dishonesty. That would be a petit theft, KANABAY COURT REPORTERS 652 1 a worthless check, something of that nature. 2 Possession of marijuana is not a crime involving 3 dishonesty. So no matter how you look at it, no 4 matter how you cut it, this charge is not, 5 quote, impeachment that we're feeding to the 6 Church of Scientology. 7 Those are the rules. Those have been the 8 rules for years. Nothing just changed in the 9 last six months. When Mr. DeVlaming was in law 10 school those were the rules of conviction 11 impeachment. When I went to law school those 12 were the rules of conviction impeachment. Have 13 you been convicted of a felony or a crime 14 involving dishonesty. And this one doesn't 15 count. This conviction cannot and will not be 16 used as impeachment to further the cause of the 17 Scientologists, and I want to make sure you 18 understand that. Okay? 19 Now, we've heard a lot about this pulling 20 up of smaller plants, and, you know, just for 21 the life of me I tried and tried and tried to 22 make that make sense. How does somebody keep 23 seeing these random marijuana plants in these 24 random planters in their pool area and keep 25 pulling them up when your Jesse Prince. This KANABAY COURT REPORTERS 653 1 isn't joe blow citizen. This is Jesse Prince, 2 former member of Scientology. This is 3 Jesse Prince, somebody who believes he's been 4 labeled a -- I don't remember what the word was. 5 It something about a defector. Okay? This is 6 him. 7 He knows Scientology. He knows their 8 tactics. He has reason to believe he is 9 surveyed. He has reason to believe they're 10 going through his garbage. Yet the man pulls up 11 random marijuana plants and throws them in the 12 garbage, the very garbage that his supposed arch 13 enemy number one is going to rift through? That 14 makes no sense. It makes no sense because it 15 didn't happen. 16 He may be pulling them up all right, but he 17 ain't pulling them up and throwing them away. 18 And why do you only pull up the supposed small 19 ones and leave the big one to grow? Deneen 20 Phillips' uncontroverted -- his fiancee, "We 21 left it there. We knew it was there." It got 22 water every time the sprinkler was on. It was 23 in the sun. 24 Detective Crosby told you on one of the 25 visits that he even said, "Oh, it's easy to KANABAY COURT REPORTERS 654 1 grow. All it takes is sun and water," and 2 actually slid it out a little bit. The Defense 3 told you he never touched it. He pulled the 4 plant out a little bit to indicate all it needs 5 is a little sun. Okay? 6 And if you're so set up and if you think 7 these people are so -- so bad that they would 8 follow you, why do you go from late spring to 9 early June all the way to August without doing 10 something about it something about it? Why 11 don't you call one of those investigators that 12 this team has? Why don't you call Mr. DeVlaming 13 who everybody in that organization knows is 14 available as their attorney? 15 This wasn't -- Mr. DeVlaming's not new to 16 them. You heard two different people tell you 17 he has represented them in the past, the other 18 members of the trust. They had access to him. 19 They could have called him, "Denis, help, random 20 marijuana plants are showing up in my pool area. 21 Mr. Emmons, Lisa McPherson Trust private 22 investigator, help." 23 Mr. Emmons can go determine the identity of 24 Rinzy Trinidad, but they can't call him and say, 25 "Come figure out who's putting all these KANABAY COURT REPORTERS 655 1 marijuana plants in my pool area. Call the 2 police. Call -- I want to tell you right now I 3 don't want nothing to do with this. Look at 4 this. Could you just help me out here? I want 5 it documented that random marijuana plants are 6 showing up in my backyard." 7 It makes no sense. You got two kids that 8 you're supposedly so worried about, yet for all 9 this time from late spring early June all the 10 way to August you know or you think that people 11 are coming in and planting marijuana plants and 12 you don't do anything about it? You know that 13 the access between the area where supposedly 14 you're being set up and your house the only 15 thing that separates you is a sliding glass 16 door, and you don't do anything about it? You 17 sleep every night with a sliding glass door from 18 your bedroom to this pool area where the 19 marijuana plants are and you don't for three 20 months do anything about it? 21 It's clear they knew from that spring time 22 frame to August that these plants were 23 supposedly popping up. It makes no sense that 24 if you think you're being wronged, if you think 25 your setting up, somebody like Jesse Prince KANABAY COURT REPORTERS 656 1 doesn't let it go that long without doing 2 something about it. Fix the screen door. Put a 3 lock on it. Put a latch on it. 4 Set up a hidden video. That's a 5 no-brainer. I mean, a non-former member of 6 Scientology can think I think I'll put my camera 7 out back. I think I'll just call somebody to 8 tell somebody. It doesn't make any sense that 9 way. And if you're so paranoid about 10 Scientology being out to get you, why do you let 11 a virtual stranger into your home? 12 They meet Rinzy one time, hi and bye, in 13 the bar. The next time they're invited to have 14 a smoke. And nobody made them go out and have 15 that smoke. And both of them knew up front 16 going outside was for the purpose of smoking 17 marijuana. And recall whose hand that marijuana 18 was placed in. Who took that marijuana from 19 Wilson's? Jesse Prince. Nobody made him take 20 that marijuana. 21 And there is a tenuous relationship between 22 this Rinzy Trinidad and the white male that 23 provided the marijuana. It's speculation on 24 Miss Phillips' part that white male was 25 connected to Trinidad as opposed to some random KANABAY COURT REPORTERS 657 1 patron in the bar that, you know, wanted to 2 smoke marijuana with them. 3 I suggest to you he's probably not 4 connected because if you recall the 5 Scientologists specifically or their employer 6 specifically hired a black infiltrator because 7 that's the type of person that can go in this 8 area. Well, why would they go out of the their 9 way to hire a black PI and then use a white one 10 to hand him marijuana? He was just a random 11 patron at the bar. 12 Anyway, who cares? Maybe he was connected 13 to Trinidad. Who cares? Nobody made Mr. Prince 14 take that baggie of marijuana. Nobody made him 15 take it home with him into his house and put it 16 in his little black box. Nobody made him, as 17 Miss Phillips said, get four or five joints out 18 of it. 19 Mr. Prince is a grown man. He's 20 responsible for what he does. Now, don't tell 21 me Scientology has that much power over you that 22 they can get you to smoke marijuana, and here it 23 is, smoke it. Now, you make this decision to 24 take that marijuana. 25 You know, and speaking of that, none of the KANABAY COURT REPORTERS 658 1 State's witnesses had to be admonished by the 2 judge on two separate occasions. You know, who 3 sat up here and had to be -- twice you guys had 4 to leave so the judge could admonish him that he 5 was violating a court order. 6 He wanted to talk to you about the tactics 7 of Scientology. He didn't talk to you about his 8 tactics. He was here to put on a show for those 9 folks. He was here to push it. He was here to 10 stretch it. He was here to intentionally and 11 wilfully violate a court order and say things to 12 you he knew he wasn't supposed to say, things he 13 knew weren't true. Because they got some 14 motivation too. They got 1.3 million dollar 15 bank motivation. 16 And this man up here was just feeding fuel 17 to the fire, making them proud of him. He 18 doesn't care what happens. What he cares is 19 they're proud of him for what he did today. Ha, 20 the judge is going to tell me not to say it. 21 I'm going to do it anyway. Let's talk about 22 their tactics. None of my witness violated a 23 court order. None of my witnesses caused you to 24 be taken out and be yelled out. 25 Defense asked you to imagine, imagine being KANABAY COURT REPORTERS 659 1 convicted because Jack says John was smoking 2 marijuana. That's not what I'm asking you to 3 do. What Mr. DeVlaming asked you to do was to 4 disregard the law because the law in this State, 5 as we live today, allows a law enforcement 6 officer with training and experience to tell you 7 that what he saw was marijuana because he 8 recognizes it on sight and because he recognizes 9 it by smell. 10 That is sufficient under our laws. There 11 is no rule that says a lab analyst must come in 12 as it relates to that joint that law enforcement 13 saw being smoked. So he has asked you to 14 disregard the law when he made that analogy 15 about Jack seeing Jill smoke it. 16 But you know what? I don't have Jack 17 saying Jill smoked it. I got his fiancee saying 18 on May 7, the date charged in the information, 19 that he touched it and smoked it, and I got law 20 enforcement. Law enforcement ain't Jack. Law 21 enforcement, twenty years experience -- I 22 started this whole thing saying I'm not going to 23 bring just Trinidad in here to make this case. 24 If that were the case, fine, I agree. I'm not 25 going to make a case on just Trinidad saying KANABAY COURT REPORTERS 660 1 this happened. Law enforcement and his fiancee. 2 Think back to the jury selection when you 3 were asked about, you know, how you would feel 4 if you were being surveilled and, you know, 5 would that aggravate you, and remember the lady 6 that was sitting by the gentleman with the 7 glasses on the second row, this was one lady 8 said, "You know, I would be aggravated if I was 9 being surveilled, but I'm not going anything 10 wrong --" 11 MR. DEVLAMING: Judge, I'm going to 12 object. I'm going to object. It's highly 13 improper to talk about what is not in 14 evidence in this case. Voir dire is not in 15 evidence in this case. 16 MS. WARDELL: Judge, I can ask the jury 17 to think back to what was said and hold them 18 to the promises and the commitments that 19 were made. 20 THE COURT: Overruled. 21 MS. WARDELL: Okay. Remember she sat 22 right there and she said, "Yeah, I would be 23 aggravated that I was followed, but I'm not 24 doing anything wrong, so I guess it really 25 wouldn't matter"? Well, you know what? KANABAY COURT REPORTERS 661 1 Yeah, Mr. Prince was followed, but he was 2 doing something wrong. 3 Nobody's saying he is a bad guy. Nobody's 4 saying, you know, he is a horrible person. All 5 we're saying is that he, during the time frame 6 alleged and during the time frame you heard 7 testimony to, he possessed marijuana. That's 8 all I'm asking you to say, and I'm asking you 9 to, yeah, hold him accountable, hold him 10 responsible and convict him for misdemeanor 11 possession of marijuana. Thank you. 12 THE COURT: Thank you, Miss Wardell. 13 Ladies and gentlemen of the jury, I thank 14 you for your attention during this trial. 15 Please pay attention to the instructions that I 16 am about to give you. 17 Jesse Prince, Jr., the defendant in this 18 case, has been accused of the crime of 19 possession of marijuana. Certain drugs and 20 chemical substances are known by law as 21 "controlled substances." Marijuana is a 22 controlled substance. 23 Before you can find the defendant guilty of 24 possession of marijuana, the State most prove 25 the following three elements beyond a reasonable KANABAY COURT REPORTERS 662 1 doubt: 2 1. Jesse Prince, Jr., possessed a certain 3 substance. 4 2. That substance was marijuana. 5 3. Jesse Prince, Jr., had knowledge of the 6 presence of the substance. 7 To "possess" means to have personal charge 8 of or exercise the right of ownership, 9 management or control over the thing possessed. 10 Possession maybe actual or constructive. 11 Actual possession means the thing is in the hand 12 of or on the person of -- on the person, or the 13 thing is in a container in the hand of or on the 14 person, or the thing is so close as to be within 15 ready reach and is under the control of the 16 person. Mere proximity to a thing is not 17 sufficient to establish control over that thing 18 when the thing is not in a place over which the 19 person has control. 20 Constructive possession means the thing is 21 in a place over which the person has control or 22 in which the person has concealed it. If a 23 thing is in a place over which the person does 24 not have control, in order to establish 25 constructive possession the State most prove the KANABAY COURT REPORTERS 663 1 person's: 2 1. control over the thing, 3 2. knowledge that the thing was within the 4 person's presence, and, 5 3. knowledge of its illicit nature -- of 6 the illicit nature of the thing. 7 Possession maybe joint, that is, two or 8 more persons may jointly have possession of an 9 article, exercising control over it. In that 10 case, each of those persons is considered to be 11 in possession of that article. 12 If a person has exclusive possession of a 13 thing, knowledge of its presence may be inferred 14 or assumed. 15 If a person does not have exclusive 16 possession of a thing, knowledge of its presence 17 may not be inferred or assumed. 18 The defendant in this case has entered a 19 plea of not guilty. This means you must presume 20 or believe the defendant is innocent. This 21 presumption stays with the defendant as to each 22 material allegation in the information through 23 each stage of trial unless it has been overcome 24 by the evidence to the exclusion of and beyond a 25 reasonable doubt. KANABAY COURT REPORTERS 664 1 To overcome the defendant's presumption of 2 innocence the State has the burden of proving 3 the follow: The crime with which the defendant 4 is charged was committed, and the defendant is 5 the person who committed the crime. 6 The defendant is not required to present 7 evidence or prove anything. 8 Whenever the words "reasonable doubt" are 9 used you must consider the following: A 10 reasonable doubt is not a mere possible doubt, a 11 speculative, imaginary or forced doubt. Such a 12 doubt must not influence you to return a verdict 13 of not guilty if you have an abiding conviction 14 of guilt. On the other hand, if, after 15 carefully, considering, comparing and weighing 16 all the evidence, there is not an abiding 17 conviction of guilt, or, if having a conviction, 18 it is one which is not stable but one which 19 wavers and vacillates, then the charge is not 20 proved beyond every reasonable doubt and you 21 must find the defendant not guilty because doubt 22 is reasonable. 23 It is to the evidence introduced in 24 this trial, and to it alone, that you are to 25 look for that proof. KANABAY COURT REPORTERS 665 1 A reasonable doubt as to the guilt of the 2 defendant may arise from the evidence, conflict 3 in the evidence or the lack of evidence. 4 If you have a reasonable doubt, you should 5 find the defendant not guilty. If you have no 6 reasonable doubt you should find the defendant 7 guilty. 8 It is up to you to decide what evidence is 9 reliable. You should use your common sense in 10 deciding which is the best evidence, and which 11 evidence should not be relied upon in 12 considering your verdict. You may find some of 13 the evidence not reliable or less reliable than 14 other evidence. 15 You should consider how witnesses acted, as 16 well as what they said. Some things you should 17 consider are: 18 Did the witness seem to have an opportunity 19 to see and know the things about which the 20 witness testified? 21 Did the witness seem to have an accurate 22 memory? 23 Was the witness honest and straightforward 24 in answering the attorneys' questions? 25 Did the witness have some interest in how KANABAY COURT REPORTERS 666 1 the case should be decided? 2 Does the witness' testimony agree with 3 other testimony and other evidence in the case? 4 Has the witness been offered or received 5 any money, preferred treatment or other benefit 6 in order to get the witness to testify? 7 Had any pressure or threat been used 8 against the witness that affected the truth of 9 the witness' testimony? 10 Did the witness at some other time make a 11 statement that is inconsistent with the 12 testimony he or she gave in court? 13 You may rely upon your own conclusion about 14 the witness. A juror may believe or disbelieve 15 all or any part of the evidence or the testimony 16 of any witness. 17 The constitution requires the State to 18 prove its accusation against the defendant. It 19 is not necessary for defendant to disprove 20 anything. Nor is the defendant required to 21 prove his innocence. It is up to the State to 22 prove the defendant's guilt by evidence. 23 The defendant exercised a fundamental right 24 by choosing not to be a witness in this case. 25 You must not view this as an admission of guilt KANABAY COURT REPORTERS 667 1 or be influenced in any way by his decision. No 2 juror should ever be concerned that the 3 defendant did not -- did or did not take the 4 witness stand and give testimony in the case. 5 These are some of the general rules that 6 apply to your discussion. You must follow these 7 rules in order to return a lawful verdict: 8 You must follow the law as set out in these 9 instructions. If you fail to follow the law, 10 your verdict will be a miscarriage of justice. 11 There is no reason for failing to follow the 12 law. All of us are depending upon you to make a 13 wise and legal decision in this matter. 14 This case must be decided only upon the 15 evidence that you have heard from the testimony 16 of the witnesses and have seen in the form of 17 exhibits -- of the exhibits in evidence and 18 these instructions. 19 This case must not be decided for or 20 against anybody because you feel sorry for 21 anyone or are angry at anyone. 22 Remember, the lawyers are not on trial, and 23 your feelings about them should not influence 24 your decision in this case. 25 Your duty is to determine if the defendant KANABAY COURT REPORTERS 668 1 has been proven guilty or not, in accord with 2 the law. It is the judge's job to determine a 3 proper sentence if the defendant is guilty. 4 Whatever verdict you render must be 5 unanimous, that is, each juror must agree to the 6 same verdict. 7 It is entirely proper for a lawyer to talk 8 to a witness about what testimony the witness 9 would give if called to the courtroom. The 10 witness should not be discredited by talking to 11 a lawyer about his or her testimony. 12 Your verdict should not be influenced by 13 feelings of prejudice, bias or sympathy. Your 14 verdict must be based on the evidence, and on 15 the law contained in these instructions. 16 Deciding a verdict is exclusively your job. 17 I cannot participate in that decision in any 18 way. Please disregard anything that I may have 19 said or done that made you think I preferred one 20 verdict over another. 21 Only one verdict may be returned as to the 22 crime charged. The verdict must be unanimous, 23 that is, all of you must agree to the same 24 verdict. The verdict must be in writing and for 25 your convenience the proper form has been KANABAY COURT REPORTERS 669 1 prepared for you. The verdict form reads as 2 follows: 3 State of Florida v. Jesse Prince, Jr. The 4 charge is possession of marijuana. 5 We, the jury, find as follows as to the 6 defendant in this case: 7 There are some parenthesis, and within the 8 parenthesis it reads "check only one." Below 9 that there are two boxes and sentences that are 10 next to each box. 11 Box A reads: The defendant is guilty of 12 possession of marijuana as charged. 13 Box B reads: The defendant is not guilty. 14 Below that it says, "so say we all." Below 15 that then there is a line and below that line 16 the words "foreperson of the jury" is written. 17 The foreperson should sign that line. 18 Below that line -- below that foreperson of the 19 jury then there's another line, and below that 20 line it says "print the name of the foreperson." 21 That is self-explanatory, please print your 22 name. And then after that the date, and the 23 foreperson should date the verdict form. 24 In just a few moments you will be taken to 25 the jury room by the court bailiff. The first KANABAY COURT REPORTERS 670 1 thing you should do is elect a foreperson. The 2 foreperson presides over your deliberations, 3 like a chairperson of a meeting. It is the 4 foreperson's job to sign and date the verdict 5 form when all of you have agreed on a verdict in 6 this case. The foreperson will bring the 7 verdict back to the courtroom when you return. 8 Your verdict finding the defendant either 9 guilty or not guilty must be unanimous. The 10 verdict must be the verdict of each juror as 11 well, as the jury as a whole. 12 In closing, let me remind you that it is 13 important that you follow the law spelled out in 14 these instructions in deciding your verdict. 15 There are no other laws that apply to this case. 16 Even if you do no like the laws that must be 17 applied, you must use them. For two centuries 18 we have agreed to a constitution and to live by 19 the law. No one of us has the right to violate 20 the rules that we all share. 21 Counsel approach, please. 22 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 23 THE COURT: Counsel for the Defense, 24 did I read all the instructions I said that 25 I would read? KANABAY COURT REPORTERS 671 1 MR. DEVLAMING: You did. 2 THE COURT: State? 3 MS. WARDELL: Yes, sir. 4 THE COURT: Okay. Thank you very much. 5 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 6 Ladies and gentlemen, at this time I'm 7 going to ask that the bailiff take the jury out. 8 I shall ask Mr. Wilson to remain seated, and I'm 9 going to send a copy of the jury instructions 10 back with you so if you have some questions 11 about those instructions you can refer to those. 12 Please take the jury out. 13 (OUTSIDE THE PRESENCE OF THE JURY) 14 THE COURT: Mr. Wilson, if you hadn't 15 figured it out, you're the alternate. You 16 figured it out? 17 JUROR WILSON: Yep. 18 THE COURT: Okay. Well, we gave you 19 the bad chair. That's the reason why. It's 20 not the comfortable one. I appreciate your 21 willingness to participate in the process. 22 We took two days out of your life, and on 23 behalf of the State and Defense and the 24 people of the Sixth Circuit, the judges and 25 all of us who are involved, we do thank you, KANABAY COURT REPORTERS 672 1 sir. 2 At this time your jury service is done, and 3 you have the right to keep to yourself what your 4 thoughts are relating particularly to this case. 5 At the same time, if you wish, from this moment 6 forward you get to share those with whomever you 7 wish to. Again, you don't have to say anything, 8 but you can. 9 Again, on behalf of the State and the 10 Defense we do have a parting gift for you, but 11 your service is done and you are allowed at this 12 time to leave. Thank you, sir. 13 JUROR WILSON: Thank you. 14 THE COURT: All right. At this time if 15 there's nothing else, we shall recess and 16 await the jury's verdict. There being 17 nothing, then I'm leaving. 18 (RECESS WAS HAD) 19 (OUTSIDE THE PRESENCE OF THE JURY) 20 THE COURT: There are two questions. 21 The first question is: Did Mr. Prince ever 22 point out the marijuana plant to 23 Officer Mitch from Mitch's testimony? 24 I assume they mean they want me to try and 25 isolate in Officer Mitch's testimony a point KANABAY COURT REPORTERS 673 1 where he specifically states that the defendant 2 pointed out the plants. I'm not so sure I heard 3 that, but even if I did, I'm inclined to isolate 4 any testimony and read just that portion as 5 opposed to reading the entire testimony again. 6 Now, what do you all want me to do? 7 MR. DEVLAMING: Judge, I think that 8 what is usually done is you tell them to 9 rely on their own collective recollection, 10 and that's what I would be requesting in 11 this case. 12 THE COURT: State, what about you? 13 MS. WARDELL: Are they asking for the 14 testimony? Because I recall Officer -- 15 Detective Crosby testifying that on the 16 second incident when he went out to see 17 Deneen watering the plants that Jesse 18 actually bent and pulled one over and said, 19 all it needs is sun and water. And if 20 that's in the testimony obviously that's 21 favorable to the State. Did they ask, point 22 blank, in their question may we have the 23 testimony read, or did they just say -- 24 THE COURT: Well here's -- this is what 25 the question says: Did Mr. Prince ever KANABAY COURT REPORTERS 674 1 point out the marijuana plant to 2 Officer Mitch from Officer Mitch's 3 testimony? 4 MS. WARDELL: Well, I believe it's in 5 there, and if you don't want to isolate it 6 then perhaps you could read the whole thing 7 or you could choose to tell them to rely on 8 their collective memory. 9 THE COURT: What are you asking for? 10 MS. WARDELL: I think Officer -- 11 Detective Crosby's testimony would be 12 helpful. 13 THE COURT: The next question is, What 14 is joint possession and what exercise 15 control over this joint possession? And 16 this is sort of a third question but related 17 to the second one, Does exercise control 18 mean I take control and tomorrow you take 19 control, et cetera? 20 MR. DEVLAMING: Judge, I think it's 21 pretty clear when they ask legal questions 22 like that about the only thing you can do 23 then is either give them or read them the -- 24 THE COURT: -- the instruction. 25 MR. DEVLAMING: -- the jury KANABAY COURT REPORTERS 675 1 instruction. 2 THE COURT: Reread the instruction. 3 That's the only thing I can do. 4 MS. WARDELL: I thought you did give 5 them a copy. 6 THE COURT: I did. 7 MR. DEVLAMING: Oh, you did? They have 8 it? 9 THE COURT: Yeah, they got it. 10 MR. DEVLAMING: Then I think you just 11 have to tell them that the instructions they 12 have are the only laws that can be given to 13 them. 14 THE COURT: I have no intention of 15 trying to define this anymore than what the 16 instruction does. Nor do I think I have any 17 authority to do so. 18 Now the real question is whether or not -- 19 what we do as it relates particularly to 20 Mr. Crosby's testimony. So on the second one, I 21 specifically will tell them the legal 22 definitions that they are seeking are contained 23 within the instruction, and that they should 24 rely on those definitions. As it relates to 25 whether or not Mr. Prince ever pointed out the KANABAY COURT REPORTERS 676 1 marijuana plant to officer Mitch's -- to 2 Officer Mitch from Officer Mitch's testimony -- 3 MR. DEVLAMING: Judge, they have not 4 indicated they have deadlocked. I think I 5 would start out trying to tell them to rely 6 on their own collective recollection, and if 7 it becomes a problem with the second 8 question, well, we'll address it. 9 THE COURT: How long was that guy on 10 the stand? 11 MS. WARDELL: That's what I was going 12 to ask. Sometimes the Court notes how long 13 the witness testifies. It was not very long 14 and the cross was not very long. 15 THE COURT: On officer Mitch? On 16 Officer Crosby? 17 MS. WARDELL: Yeah. I don't think so. 18 If your recall -- 19 MR. DEVLAMING: He's the main witness. 20 MS. WARDELL: Yeah. But I started the 21 State's case and I was rested in less than 22 an hour and a half. I called three 23 witnesses. 24 THE COURT: Jennifer? 25 THE COURT REPORTER: Yes. KANABAY COURT REPORTERS 677 1 THE COURT: I know you all hate it. 2 I'm going to have her read back 3 Officer Crosby's testimony. Bring the jury 4 in. 5 THE COURT REPORTER: Can you give me a 6 few minutes? 7 THE COURT: How much time? 8 THE COURT REPORTER: Then minutes. 9 THE COURT: All right. Ten minutes it 10 is. See you all in ten. 11 (A RECESS WAS HAD) 12 THE COURT: They got more questions. 13 We'll just wait until they write them. 14 MR. DEVLAMING: Judge, Bailiff, I 15 wanted to address the judge before we did 16 that. Judge do you want to give the jury an 17 option of either, a, relying on their memory 18 or tell them we are prepared to read, 19 however, they will only get the entire -- 20 THE COURT: That was my intent. 21 MR. DEVLAMING: Oh, that was your 22 intent? 23 THE COURT: I intend to do exactly 24 that. 25 MR. DEVLAMING: Okay. KANABAY COURT REPORTERS 678 1 THE COURT: I was going to tell them, 2 listen, we can -- here's your question. I 3 cannot read a certain portion of the 4 testimony, and I am prepared at this time to 5 have the court reporter read the entire 6 testimony to you if you all feel that would 7 be beneficial. That's what I intended to 8 say -- of the officer, not the whole -- 9 MR. DEVLAMING: Right. Oh, of course. 10 Or they could rely on their collective 11 recollections? I mean, are you going to 12 tell them -- because they -- 13 THE COURT: I wasn't going to say that. 14 I was just going to say those two things, 15 that I can't do it, or I can do it but all 16 of it. 17 MR. DEVLAMING: Okay. Okay. Sorry. 18 THE COURT: All right. 19 MS. WARDELL: Judge, are we going to 20 handle that question before they write more, 21 or are you going to wait? 22 THE COURT: No. We're going to let 23 them write more and then we're going to 24 handle them all. 25 (IN THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 679 1 THE COURT: All right. Why are the 2 State Exhibits numbered 3, 4, 5 and 6, which 3 are pictures taken by the officer, dated 4 1998-2 -- I guess then they put 2/1 and a 5 question mark as opposed to where is 1 and 6 2. Let me read it again. Why are the State 7 Exhibits numbered 3, 4, 5 and 6, which are 8 pictures taken by the officer, dated '98 9 2/1. Maybe the pictures have '98 2/1 on 10 them? 11 MR. DEVLAMING: I know the answer. 12 First of all, those numbers you began to 13 read are the exhibit numbers. 14 THE COURT: Right. 15 MR. DEVLAMING: They're all 16 photographs. They have an imprint probably 17 -- 18 THE COURT: Of the development date? 19 MR. DEVLAMING: No. 20 THE COURT: No? 21 MR. DEVLAMING: You know how these 22 cameras are where you can change the date so 23 that it goes on to the camera? You know on 24 the picture? 25 THE COURT: It's a date stamp. I can't KANABAY COURT REPORTERS 680 1 answer that. 2 MR. DEVLAMING: It's set improperly. I 3 mean, you can't answer the question. You 4 can't give testimony. 5 MS. WARDELL: In other words on the 6 back of the picture -- 7 THE COURT: I know exactly what they're 8 talking about, I just -- I can't answer that 9 question. We all agree that this is a 10 question that we cannot answer. It didn't 11 come into evidence. It is something outside 12 the province of this trial. They are not to 13 consider it. I already told them they 14 weren't to consider it, but they're 15 considering it. So I'll tell them that 16 question I cannot answer. 17 I shall give them the option -- I may even 18 tell them -- I'm contemplating, or you can just 19 rely on your own memory. In fact, I think I 20 will say that as it relates to the first 21 question, and then I'll tell them the last one, 22 read the instructions I gave you or bring them 23 back and I'll read them for you. 24 MS. WARDELL: Wait. You changed your 25 mind on the whole transcript thing? KANABAY COURT REPORTERS 681 1 THE COURT: I didn't change my mind. 2 What I said is I will tell them, Listen, we 3 can -- we can -- I can't read a portion of 4 it. I can read it all or you all can just 5 rely on you own memory. That's what I am 6 going to say. And then the second one I'm 7 going to say read the instructions I gave 8 you, and on the last one I'll say we can't 9 answer that question, and that's it. Please 10 bring them in. 11 (IN THE PRESENCE OF THE JURY) 12 THE BAILIFF: The jury is in the 13 courtroom and seated. 14 THE COURT: We have three questions. 15 The first one is: Did Mr. Prince ever point 16 out the marijuana plant to Officer Mitch 17 from Officer Mitch's testimony? 18 From that question itself I glean you want 19 that portion of the testimony; however, I cannot 20 read just a portion of the testimony. I would 21 have to read the entire testimony, have it all 22 read back to you, to make sure that we don't 23 highlight any particular portion of the 24 testimony, or you can choose to rely on your own 25 memory. KANABAY COURT REPORTERS 682 1 If you want me to have the entire testimony 2 of Officer -- it's actually Officer Crosby, but 3 I make the assumption that you're speaking of -- 4 well, let me ask you. It says Officer Mitch. 5 Is it fair -- who's the foreperson. 6 THE JURY: It's Officer Crosby. 7 THE COURT: All right. So 8 Officer Crosby's testimony. All right. 9 Then here's your second question. Well, 10 actually let me get -- you all need to 11 figure out, and maybe you can huddle 12 together right now, whoever the foreperson 13 is, whether or not you want it all read back 14 or whether you want to rely on your own 15 memories. 16 FOREPERSON: We already tried the 17 memory -- the memory. 18 THE COURT: Okay. All read back. Then 19 the next one is: What is joint possession 20 and what is exercising control over this 21 joint possession? Does exercising control 22 mean I take control and tomorrow you take 23 control, et cetera? 24 All of the instructions on the law and all 25 of the definitions that relate particularly to KANABAY COURT REPORTERS 683 1 those instructions are contained in the packet I 2 gave you. You do have it. You did get it, 3 right? 4 FOREPERSON: Yes. 5 THE COURT: Okay. Now here's the next 6 thing, you're going to have to read that and 7 within the confines of that come up with 8 that answer. 9 And here's your last question: Why are the 10 State Exhibits numbered 3, 4, 5 and 6, which are 11 pictures taken by the officer, dated 9 2/1? 12 FOREPERSON: That's '98. 13 THE COURT: Sorry. '98 2/1. Okay. 14 The only thing that I can tell you is I 15 can't answer that question. The only 16 evidence you can consider are things that 17 have come into evidence. Do you understand? 18 FOREPERSON: Yes. 19 THE COURT: Okay. Now, are you 20 prepared -- 21 THE CLERK: Jennifer. 22 THE COURT: I know her name. I was 23 getting ready to say Madam Court reporter -- 24 to do that? 25 THE COURT REPORTER: Sure, Judge. KANABAY COURT REPORTERS 684 1 THE COURT: Please proceed. 2 (WHEREUPON THE COURT REPORTER READ BACK TESTIMONY OF 3 OFFICER CROSBY FROM HER STENOGRAPHIC NOTES) 4 THE COURT: You have a question? Can 5 you all approach for one moment, please? 6 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 7 THE COURT: I think to perfect the 8 record the question obviously needs to be 9 reported. Do you all want them to write it 10 now or can we just let them -- apparently 11 they have a question. Should we just let 12 them ask it and place it on the record, and 13 at that point in time we reconvene and we'll 14 figure out whether or not we can answer it? 15 MS. WARDELL: Yeah. I have a feeling 16 he is going say stop. 17 MR. DEVLAMING: Well, he said he had a 18 question. 19 MS. WARDELL: Okay. That's fine. I 20 don't care. We can put it on the record. 21 THE COURT: All right. Do you have any 22 problem with that? 23 MR. DEVLAMING: No. 24 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 25 THE COURT: All right. You all have a KANABAY COURT REPORTERS 685 1 question, Mr. Wonger or Swonger or whatever 2 it is, that you're about to ask me 3 collectively? 4 FOREPERSON: Yes, I do. 5 THE COURT: What is the question? 6 FOREPERSON: The question is I believe 7 we've heard what we wanted to hear. Does 8 she have to go on and read the rest of it? 9 THE COURT: Please approach. 10 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 11 THE COURT: I think I already told them 12 the answer to that question is yes. 13 MR. DEVLAMING: Yep. 14 THE COURT: I don't see anyway around 15 it. Thank you. 16 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 17 THE COURT: Yes, she has to read it 18 all. 19 FOREPERSON: Okay. 20 THE COURT: All right. Thank you. 21 (THE COURT REPORTER CONTINUED TO READ THE TESTIMONY 22 OF OFFICER CROSBY) 23 (A JUROR LEFT THE COURTROOM FOR A SHORT RECESS) 24 (THE COURT REPORTER CONTINUED TO READ THE TESTIMONY 25 OF OFFICER CROSBY UNTIL COMPLETED) KANABAY COURT REPORTERS 686 1 THE COURT: That's it. Please take the 2 jury out. 3 (OUTSIDE THE PRESENCE OF THE JURY) 4 THE COURT: We stand in recess. 5 (A RECESS WAS HAD) 6 THE COURT: What do you all want to do? 7 They're -- let me tell you that I just -- 8 one of the bailiffs -- the bailiff just told 9 me one of them apparently just came to the 10 door and says she can't stand it in there 11 anymore. So the next question is, What now? 12 Do we want to bring them in, offer them 13 something to eat, Allen charge them if they 14 tell us or suggest to us that can go no 15 longer, bring them back in the morning 16 maybe? 17 MR. DEVLAMING: Well, my -- I think 18 Miss Wardell and I are of the same feeling 19 that I don't want to send them home unless 20 we have to. 21 THE COURT: All right. So we'll Allen 22 charge them. 23 MR. DEVLAMING: No, no. 24 THE COURT: Well, actually nobody's 25 actually told me at this point in time that KANABAY COURT REPORTERS 687 1 they can't reach a verdict, so I don't think 2 we can Allen charge them. But I do need to 3 see where they are because it's time for me 4 to order something for them to eat if they 5 are not close. 6 MR. DEVLAMING: That's what I would 7 suggest. You want to by note? 8 MS. WARDELL: Well, I was going to say, 9 do we have to bring them in, because that 10 would just take more time. Can't the 11 bailiff just knock on the door and say do 12 you all need something, here's a menu if 13 they do? 14 THE COURT: No. Because the woman said 15 I cannot stay in this room any longer. She 16 has got the be let out. Something's got to 17 happen. 18 MR. DEVLAMING: Okay. All right. 19 THE COURT: So bring them in the 20 courtroom and let me see where they are. 21 She said -- I think she said, "I have thrown 22 up twice," or something like that. 23 MS. WARDELL: Maybe that's why -- 24 (IN THE PRESENCE OF THE JURY) 25 THE BAILIFF: Your Honor, the jury's in KANABAY COURT REPORTERS 688 1 the courtroom and seated. 2 THE COURT: I was told by one of the 3 bailiffs someone is ill and needed to leave 4 the room. I was going to call you all out 5 anyway to find out if you would like at this 6 point in time for me to order dinner for 7 you. I can indicate to you that it will 8 take about an hour for it to get here. 9 If you all needed to take -- if you all 10 need to take a break, you know, ten minutes or 11 fifteen minutes or so, maybe go outside, get 12 some fresh air, something of that nature, we can 13 surely arrange for that for you, and at the same 14 time you all can give your orders to the 15 bailiff, and we could attempt to get some food 16 for you. 17 JUROR NO. 1: 18 UNIDENTIFIED JUROR: I think don't 19 think it's a food thing. I think it's just 20 taking a break. 21 THE COURT: You need to take a break? 22 UNIDENTIFIED JUROR: I don't think I 23 could keep anything down right now. 24 THE COURT: Okay. So is it fair to say 25 that you all do not wish for me to order KANABAY COURT REPORTERS 689 1 anything for you at this time? 2 UNIDENTIFIED JUROR: Are you buying? 3 THE COURT: We are buying, but it's 4 going to take you about an hour to get it. 5 But we are buying. 6 UNIDENTIFIED JUROR: Filet mignon, 7 medium well. 8 THE COURT: Well, we didn't indicate 9 what we were ordering. You didn't know that 10 McDonald's was on the menu. 11 UNIDENTIFIED JUROR: Just trying to 12 break up a little humour here. 13 THE COURT: Okay. So there may be a 14 little recess for you. How much time do you 15 think -- 16 UNIDENTIFIED JUROR: Probably ten or 17 fifteen minutes would do us all good. 18 UNIDENTIFIED JUROR: We just need to 19 get out of that room. 20 THE COURT: Why don't we make it 21 twenty. Okay? You all take a twenty-minute 22 break. Now -- 23 MS. WARDELL: Judge? 24 THE COURT: Hold on. 25 MS. WARDELL: May we approach? KANABAY COURT REPORTERS 690 1 THE COURT: Do you need to approach? 2 MS. WARDELL: Yes. 3 THE COURT: Come on up. We don't need 4 the court reporter. 5 (A DISCUSSION WAS HAD OFF THE RECORD) 6 MS. WARDELL: All right. Here's the 7 deal. You don't have to keep them all 8 together. If you're going to keep them all 9 together -- well, here's the thing. While 10 you're separated you cannot individually and 11 amongst yourselves, for instance you and you 12 and you and you, discuss this case. Okay? 13 You got to be together when you're talking 14 about it. All right? Okay. Thank you. 15 Please give them a break. 16 (OUTSIDE THE PRESENCE OF THE JURY) 17 THE BAILIFF: The jury's out of the 18 hearing of the court, your Honor. 19 THE COURT: All right. We stand in 20 recess again. 21 MS. WARDELL: Judge would it be fair to 22 say that at least for that twenty-minute 23 period that the attorneys could leave the 24 building? 25 THE COURT: No. Because they may no -- KANABAY COURT REPORTERS 691 1 of course, go ahead and leave the building. 2 MS. WARDELL: You know what I'm saying? 3 THE COURT: You can leave the building. 4 That's was fine with me. I won't take the 5 verdict for twenty minutes or so. But if 6 you're buying, you know, just bring us all 7 back something. You want to put in your 8 order, Mr. DeVlaming? 9 (A RECESS WAS HAD) 10 THE COURT: Someone, I can't tell you 11 which juror, but one of the juror has 12 alerted the bailiff that they are 13 deadlocked. Shall I Allen charge them, or 14 should we call it even and do it again 15 another day? 16 MS. WARDELL: The State would request 17 at least one shot at an Allen charge. Did 18 they take the entire twenty-minute break? 19 THE COURT: They took the twenty. It 20 took them five minutes after the twenty to 21 say we're done. 22 MS. WARDELL: Okay. 23 THE COURT: All right. I'll read the 24 Allen charge. Bring them in. 25 (IN THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 692 1 THE BAILIFF: The jury's in the jury 2 box and seated, your Honor. 3 THE COURT: Mr. Swonger, I've been 4 advised, sir, that you all have indicated 5 you cannot reach a verdict. Is that 6 accurate? The jury is deadlocked? 7 FOREPERSON: Yes, sir. 8 THE COURT: I'm going to read to you an 9 instruction and I'd like you to listen to 10 the instruction, and then we'll try to go 11 from there. 12 I know that all of you have worked hard to 13 try and find a verdict in this case. It's 14 apparently been impossible for you to -- 15 impossible for you so far. Sometimes an early 16 vote before discussion can make it hard to reach 17 an agreement about the case later. The vote, 18 not the discussion, might make it hard to see 19 all sides of the case. 20 We are all aware that it is legally 21 permissible for a jury to disagree. There are 22 two things a jury can lawfully do: Agree on a 23 verdict or disagree on what the facts of the 24 case may truly be. 25 There is nothing to disagree about on the KANABAY COURT REPORTERS 693 1 law. The law is as I told you. If you have any 2 disagreements about the law, I should clear them 3 for you now. That should be my problem, not 4 yours. 5 If you disagree on what you believe the 6 evidence showed, then only you can resolve that 7 conflict, if it is to be resolved. 8 I have only one question of you. By law, I 9 cannot demand this of you, but I want you to go 10 back into the jury room. Then, taking turns, 11 tell each of the other jurors about any weakness 12 of your own position. You should not interrupt 13 each other or comment on each other's views 14 until each of you has had a chance to talk. 15 After you have done that, if you simply cannot 16 reach a verdict, then return to the courtroom 17 and I will declare this case mistried, and we'll 18 discharge you with my sincere appreciation for 19 your services. 20 You may now retire to continue with your 21 deliberations. 22 FOREPERSON: We're ready. 23 THE COURT: Please retire to continue 24 with your deliberations. 25 (OUTSIDE THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 694 1 THE COURT: Okay. We recess again. 2 (A RECESS WAS HAD) 3 THE COURT: All right. The jury's 4 indicated again that they are deadlocked. 5 I'm going to mistry it. Shall we pick a new 6 trial date? 7 MR. DEVLAMING: Yes. 8 THE COURT: July 2 and 3 are available. 9 Of course we don't to do the 3rd so I would 10 have to say the 2nd, which is a Monday, or 11 the very next week in July. 12 MR. DEVLAMING: Judge, I think for me 13 it's going to have to be the next because I 14 have a trial that first week in July. 15 THE COURT: How is July 10? Actually, 16 hold on. On the 11th I will not be here, so 17 I can't do the 10th. It's got to be the 18 third week. I can start it Monday the 16th. 19 MR. DEVLAMING: That's fine with me. 20 MS. WARDELL: Judge, right now I have a 21 murder set. I'm going to find out Friday 22 whether or not it's going to be continued. 23 THE COURT: It's set around the 16th of 24 July? 25 MS. WARDELL: Right. KANABAY COURT REPORTERS 695 1 THE COURT: On that day? 2 MS. WARDELL: Yes. 3 THE COURT: All right. So then we 4 should not set this -- 5 MS. WARDELL: Well, I thought it was 6 the 18th, but the 16th is a Monday? 7 THE COURT: The 16th is a Monday. The 8 18th would be a Wednesday. 9 MS. WARDELL: Well, I know it's a 10 Monday, so it must be the 16th. It's with 11 Judge Downey. That's -- they let me know 12 last night that the defendant filed a motion 13 to continue. 14 THE COURT: I can start it on July 23. 15 MS. WARDELL: Well, if you want -- I 16 would just ask that you pencil in the 16th 17 with the understanding that I'll know Friday 18 one way or the other if I'm available. 19 MR. DEVLAMING: Judge, I can do it 20 either day the Court chooses. 21 THE COURT: Shall I just set it for a 22 status check, and you come in and tell me -- 23 MS. WARDELL: I will come in Tuesday 24 and let you know if it got continued. 25 THE COURT: I'll do a pretrial if you KANABAY COURT REPORTERS 696 1 prefer to actually be present for it. 2 MR. DEVLAMING: Judge, if you or Lydia 3 were to call me, I'll put it in. 4 THE COURT: Status check this case for 5 Tuesday, Tuesday coming, and please bring 6 the jury back. Tuesday, I guess that's the 7 29th, and we'll pick the actual trial date 8 on that day, and it will be -- you said -- I 9 said the 23rd or the 18th? 10 MS. WARDELL: You said the 16th or the 11 23rd. 12 THE COURT: Thank you. The 16th or the 13 23rd. So one of those two days it will set 14 on. 15 THE BAILIFF: Your Honor, you did say 16 do not -- 17 THE COURT: Bring them back. 18 THE BAILIFF: I'm sorry, I 19 misunderstood you. 20 THE COURT: Okay. Bring them back. 21 (IN THE PRESENCE OF THE JURY) 22 THE COURT: Mr. Swonger, the bailiff 23 has advised me you all have still not been 24 able to reach a verdict; is that accurate, 25 sir? KANABAY COURT REPORTERS 697 1 JUROR SWONGER: Yes, your Honor. 2 THE COURT: At this time I declare this 3 case to be mistried. 4 On the behalf the State and the Defense in 5 this case and the people of the Sixth Circuit, 6 all the judges and all of us who are involved, 7 we appreciate your willingness to participate. 8 You've been here a long time. I know you worked 9 hard. And I at this time release you from your 10 service with the thanks of this court. You all 11 have a good day. 12 THE BAILIFF: Right this way. 13 (THE JURY EXITS) 14 THE COURT: All right, you all, I think 15 we stand adjourned. 16 17 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 18 PROCEEDINGS CONCLUDED 19 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 20 21 22 23 24 25 KANABAY COURT REPORTERS 698 1 REPORTER'S CERTIFICATE 2 3 STATE OF FLORIDA ) 4 COUNTY OF PINELLAS ) 5 6 I, Jennifer Fleischer, RPR, certify 7 that I was authorized to and did 8 stenographically report the foregoing 9 proceedings and that the transcript is a true 10 and complete record of my stenographic notes. 11 DATED this 1st day of June, 2001. 12 13 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 14 JENNIFER FLEISCHER, RPR 15 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS