Charge Conference — Jury Instructions Finalized for All Three Counts
227 linesJUDGE EVERETT: Everyone can be seated. Donuts, no interest. There's got to be something good.
JUDGE EVERETT: All right. For the attorneys, we'll go ahead and go into recess now. When we come back from lunch, we will have the charge conference on the jury instructions, the initial draft that's been sent to everyone. Both parties have it?
MS. CAPPLEMAN: Yes, Your Honor.
JUDGE EVERETT: All right. Other than what's already been sent, did either party request additional instructions?
MS. CAPPLEMAN: The State has not.
MS. MEYERS: Nor does the defense, Your Honor.
JUDGE EVERETT: All right. There was one other instruction that came to mind given all the discussion about intent and context.
JUDGE EVERETT: Within standard instruction 13.1, there is a definition that defines intent. I've previously given it in murder trials as a standalone instruction, which basically would give the jurors a definition of what is intent.
JUDGE EVERETT: In this matter, I would believe it's appropriate. I'll allow you all to raise any objections or concerns about it as we get into the charge conference itself, but I just wanted to make you aware it's part of the edit that I have been working on.
MR. RASHBAUM: Can you provide the number one last time?
JUDGE EVERETT: Yes. Standard Instruction 13.1. This is the general burglary instruction, but within the definition section of that instruction, intent is defined, and that definition of intent would be what would be given unless either party is objecting to it taking place.
MR. RASHBAUM: Thank you, Your Honor.
JUDGE EVERETT: Right. We will reconvene with the charge conference at 1:15.
JUDGE EVERETT: Mr. Rashbaum, Ms. Meyers, typically how I do this, I go through each instruction and we simply just edit as we go. I believe it's better to work through the full instructions so that way everyone has an opportunity to be heard concerning anything they wish to argue for or anything that they want to omit. As to 3.1, is there any objection or request? 3.2, any objection or request?
MR. EVANS: No objection. Request would be "conspiracy to commit first-degree murder."
JUDGE EVERETT: Right. I will make that edit.
JUDGE EVERETT: And the same with regard to solicitation, Mr. Evans?
MR. EVANS: Yes, sir.
JUDGE EVERETT: Does the defense wish to be heard concerning 3.2?
MS. MEYERS: No, Your Honor.
JUDGE EVERETT: All right. As to introduction to homicide, given what has been argued as a part of the defense case, I really don't know how the justifiable or excusable can be given. Are you advocating for either?
MR. EVANS: We are not, Your Honor. The State is not.
JUDGE EVERETT: All right. Then what I'm going to do then, is there a concession by the defense that the homicide was not excusable or justified?
MS. MEYERS: Yes, Your Honor.
JUDGE EVERETT: And I will remove from 7.1 all reference to excusable and justified homicide.
MS. MEYERS: Your Honor, one brief issue. I know that this is part of the standard instructions, but just for the record, we do waive lesser included offenses.
MS. MEYERS: So just putting it out there.
JUDGE EVERETT: State, do you wish for second degree and manslaughter to be given?
MR. EVANS: No, sir.
JUDGE EVERETT: Very well.
MR. EVANS: Well, I would suggest using the first line under introduction to homicide and where it says "Charles Adelson is accused of first-degree murder in count one of the indictment," and then read the last sentence of that just above count one, which says "I now instruct you on the circumstances that must be proved before Charles Adelson may be found guilty of first-degree murder." End up with a period. Get rid of the "or lesser including crime."
JUDGE EVERETT: One moment. What is the defense's position as to the proposed edit?
MS. MEYERS: We're fine with that, Your Honor.
JUDGE EVERETT: All right, then it will read as requested: "Charles Adelson is accused of first-degree murder in count one of the indictment." Now we'll just add: "I will now instruct you on the circumstances that must be proved before Charles Adelson may be found guilty of first-degree murder."
MS. MEYERS: That's fine, Your Honor.
JUDGE EVERETT: And for all the edits that I'm making right now, everyone will receive a copy of this as well.
MS. MEYERS: Your Honor, a very minor—
JUDGE EVERETT: Go ahead.
MS. MEYERS: Um, the indictment numbers the counts with non-Roman numerals. I don't know, so I don't know if you want to just keep it consistent.
JUDGE EVERETT: I don't think it makes a difference, but Mr. Evans, do you have a position?
MR. EVANS: No, sir.
JUDGE EVERETT: I'll just give the Roman numerals.
JUDGE EVERETT: Okay. All right. The italicized portion in 7.2 I'm going to remove. And I believe the State's — Mr. Evans, is the State's only theory going to be premeditated?
MR. EVANS: Yes, sir.
MR. EVANS: So I would suggest doing away with when it says "there are two ways."
JUDGE EVERETT: Yes.
MR. EVANS: Entire section together because I think it would read fine: "I now instruct you on the circumstances that must be proved before Charles Adelson may be found guilty of first-degree murder..."
JUDGE EVERETT: "...to prove the crime of first-degree premeditated murder" would be the next sentence.
MR. EVANS: Yes, sir.
JUDGE EVERETT: All right. As to the elements: Element one, Daniel Markel is dead. And I wasn't certain if you all wanted to read Dan or Daniel. Really doesn't make a difference, I believe, but is there a preference?
MR. EVANS: Um, it's alleged in the indictment, uh— I'm just remembering what we did last time.
MS. MEYERS: Last time it was Daniel, I believe.
MR. EVANS: Daniel, yeah. Yeah, we can go with Daniel because I think they've identified him that way.
JUDGE EVERETT: So very well. Elements one, two, and three — really the only thing that the Court has edited with this are just changing the names of defendant and victim. Element one: Daniel Markel is dead. Element two: the death was caused by the criminal act of Charles Adelson. Element three: there was a premeditated killing of Daniel Markel. Any objection or request as to the three elements?
MR. EVANS: No, Your Honor.
JUDGE EVERETT: All right. Moving on to the definitions. An act will be given. Killing with premeditation will be given. The question of premeditation will be given. And then the rest of the instruction deals with legally adequate provocation. I assume this is not being requested since there's no argument for it being justified or excusable.
MR. EVANS: State's not requesting it, Your Honor.
MS. MEYERS: Same, Your Honor.
JUDGE EVERETT: All reference then to legally adequate provocation will be removed and the instruction will end at the definition of the question of premeditation. And the State is waiving all lessors as well?
MR. EVANS: Yes.
JUDGE EVERETT: And the defense specifically is waiving all lesser included?
MS. MEYERS: Yes, Your Honor.
JUDGE EVERETT: And all reference to lesser included will be removed and also from the verdict form as well.
JUDGE EVERETT: All right, and that will take us right into, after the instruction on first-degree murder, 3.5(a), principals.
MR. EVANS: State is requesting that instruction, Your Honor.
JUDGE EVERETT: Very well.
JUDGE EVERETT: It will read: "If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all things the other person or persons did, if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime. To be a principal, the defendant does not have to be present when the crime is committed or attempted." And essentially it would just be the standard language. Does the defense have any objection or request to raise?
MS. MEYERS: No, Your Honor.
JUDGE EVERETT: 3.5(b), principals when active participant hired by defendant — State is requesting that one as well. All right, as to number three within 3.5(b), I edited this to read "the crime was committed by Sigfredo Garcia and/or Luis Rivera." Do you wish there to be any other edits?
MS. MEYERS: I think that that's fine with us.
JUDGE EVERETT: Mr. Evans?
MR. EVANS: Yes, sir, that will be fine.
JUDGE EVERETT: After 3.5(b), this is where earlier, when I was suggesting intent as a standalone instruction from 13.1, this is where I would otherwise think it's a good place for it to be inserted. It would just read "INTENT" in capital letters, and below: "The intent with which an act is done is an operation of the mind and therefore is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case." Does the State having a position about giving in the definition of intent as a standalone instruction or where it should go?
MR. EVANS: No sir. That would be an acceptable spot.
JUDGE EVERETT: Defense?
MS. MEYERS: Your Honor, I — I don't believe it's necessary because principal in particular does talk about conscious intent. I — I don't know that we need a separate instruction on it.
JUDGE EVERETT: Well, it certainly incorporates the word "intent," but nowhere, I believe, is "intent" defined specifically.
MS. MEYERS: I — I don't believe this separate intent instruction was used in the prior trial. I don't know about the first one, but I don't believe it was in the instructions in the previous case. I don't think it's necessary, so we would object.
JUDGE EVERETT: Well, Mr. Evans?
MR. EVANS: I do not believe it was included in the last one. I don't believe either side requested it. We — we are okay with it. Would request that if you go to the right test for the inclusion of an instruction, I believe is found at Butler v. State, 1473-269, with the factors being: an instruction accurately states the applicable law, the facts in the case support giving the instruction, and the instruction was necessary to allow the jury to properly resolve all issues in the case.
JUDGE EVERETT: Whether or not the defendant has acted with intent as it relates to the primary offense, first-degree murder, I don't think anyone is disputing whatsoever. I'm going to give the instruction as requested from the State as it does meet the grounds outlined in Butler. Is there any argument as to where it should be positioned within the instructions themselves?
MR. EVANS: It can either go where it is, or it could be placed after the, um, the reasonable doubt instruction. I don't have any strong feelings one way or the other.
MS. MEYERS: I think — I'm sorry, what did you say? I think if it's going to be included, it should be before reasonable doubt.
JUDGE EVERETT: Does the defense have a position as to where it would be positioned?
MR. EVANS: I do not have a problem with sticking it before reasonable doubt.
JUDGE EVERETT: Very well. I will move it there.
JUDGE EVERETT: All right. Moving on to count two, conspiracy to commit. Mr. Evans, you would ask that this read first-degree murder?
MR. EVANS: Yes, sir.
MS. MEYERS: No objection.
JUDGE EVERETT: All right. Element one: the intent of Charles Adelson was that the offense of first-degree murder would be committed.
JUDGE EVERETT: And then as to element two, I'm just going to remove the italicized portion because we've already defined first-degree murder in the instructions. I don't believe we need to repeat it. Is either party asking for it?
MR. EVANS: No, sir.
MS. MEYERS: No, Your Honor.
JUDGE EVERETT: All right. Moving on to element two: "In order to carry out the intent, Charles Adelson..." Mr. Evans, which of the bracketed portions are you asking for?
MR. EVANS: We would ask for all four, Your Honor.
JUDGE EVERETT: Very well. I will just place a semicolon after each one.
MR. EVANS: And I would request that between "combined" and "confederated" that an "or" be placed.
JUDGE EVERETT: That's fine.
JUDGE EVERETT: You said after the semicolon or before it?
MR. EVANS: It would be after the semicolon in the file.
JUDGE EVERETT: Yes. Just making sure.
JUDGE EVERETT: All right. Element two: "In order to carry out the intent, Charles Adelson agreed, conspired, combined, or confederated with Katherine Magbanua" — and this was another edit I made — "and other co-conspirators to cause the first-degree murder to be committed either by them or one of them or by some other person."
JUDGE EVERETT: Is there any objection or request?
MR. EVANS: No, sir.
MS. MEYERS: I don't know that he's accused in the indictment, Your Honor, of conspiring with others.
JUDGE EVERETT: Let me bring up the indictment.
MS. MEYERS: Oh, you know what, Your Honor, no objection.
JUDGE EVERETT: Very well. Let me go back to how that will read once again. In order to carry out the intent, Charles Adelson agreed, conspired, combined, or confederated with Katherine Magbanua and/or other co-conspirators to cause the first-degree murder to be committed either by them or one of them or by some other person.
JUDGE EVERETT: It is not necessary that — and the State's asking for all four again?
MR. EVANS: Yes, sir.
JUDGE EVERETT: It is not necessary that the agreement, conspiracy, combination, or confederation to commit first-degree murder be expressed in any particular words or that words passed between the conspirators.
JUDGE EVERETT: It is not necessary the defendant do any act in furtherance of the offense conspired. It pertains to the good faith affirmative defense of renunciation. Is there any argument for this? I'll remove it. I don't believe there's any evidence either, but better to ask the question than just delete. Right.
JUDGE EVERETT: There are no category one lesser included of count two. Are there any being requested by the defense or the State?
MR. EVANS: No, sir.
JUDGE EVERETT: Moving on to count three. The wording of the header "solicitation to commit first-degree murder" — is that the State's request once again?
MR. EVANS: Yes, sir.
JUDGE EVERETT: To prove the crime of criminal solicitation, the State must prove the following two elements beyond a reasonable doubt. Element one — this is where I've edited this during the trial — but it would read "Charles Adelson solicited Katherine Magbanua, Sigfredo Garcia, and/or Luis Rivera to commit first-degree murder." Any objection or request?
MR. EVANS: No, sir.
MS. MEYERS: No, Your Honor.
JUDGE EVERETT: Element two: "During the solicitation, Charles Adelson..." And of the bracketed portions, Mr. Evans, which are being requested?
MR. EVANS: All four. And the "or" being in place consistent with what we did in the prior instruction.
JUDGE EVERETT: Very well.
JUDGE EVERETT: Starting back at the beginning, during the solicitation, Charles Adelson commanded, encouraged, hired, or requested Katherine Magbanua, Sigfredo Garcia, and/or Luis Rivera to engage in specific conduct which would constitute commission of first-degree murder.
JUDGE EVERETT: It is not necessary that the defendant do any act in furtherance of the offense solicited. The crime of first-degree murder has been previously defined in these instructions.
JUDGE EVERETT: And the one definition that would be given would be "to solicit." The affirmative defense, again, concerning renunciation — this would be removed unless there's any argument for keeping it.
MR. EVANS: None from the State.
MS. MEYERS: No, Your Honor.
JUDGE EVERETT: Very well, following then count three, the definition of intent would be given as a standalone instruction. Then we would move into 3.7, plea of not guilty, reasonable doubt, and burden of proof.
JUDGE EVERETT: 3.9, weighing the evidence. And then going into the witness testimony, specifically the "give as applicable" portion, which are being asked for. I believe, from what I've heard, all but number 10. Defense?
MS. MEYERS: We want six, seven, eight. I think nine, I think we ought to take out. I don't know if anyone's been convicted of a misdemeanor, so I don't think that's applicable.
JUDGE EVERETT: Certainly felony.
MS. MEYERS: Um, I don't know that there's been... I don't think there's been any evidence per se.
MR. EVANS: I don't think there's been any. That's the reason State isn't requesting it.
JUDGE EVERETT: Right. Ten will be removed, then. As to nine, you're just asking has the witness been convicted of a felony, and put the question mark there?
MS. MEYERS: Yes, sir.
JUDGE EVERETT: Miss Meyers?
MS. MEYERS: That's fine.
JUDGE EVERETT: For eight, I will just put an "or" between "he" and "she".
JUDGE EVERETT: It would read "the witness at some other time make a statement that's inconsistent with the testimony he or she gave in court".
MS. MEYERS: That's fine, Your Honor.
JUDGE EVERETT: Law enforcement witness — is this being requested?
JUDGE EVERETT: Under the "give as applicable", next "give as applicable" section.
MS. MEYERS: Yes, Your Honor.
JUDGE EVERETT: Very well. "The fact that a witness is employed in law enforcement does not mean that his or her —"
MS. MEYERS: Yes, Your Honor.
JUDGE EVERETT: "— testimony deserves more or less consideration than that of any other witness."
JUDGE EVERETT: We have had multiple experts. I assume the parties want this to be given as well?
MR. EVANS: Yes, sir.
JUDGE EVERETT: Accomplices and informants. The "amen-ing" can stop from the defense table for this one. All right. As to the bracketed portion, "claims to have helped the defendant commit a crime" and "hopes to gain favorable treatment" would be the ones I think are most appropriate. Is anything else being asked for?
MS. MEYERS: I think, Your Honor, that the immunity piece is important because Ms. Magbanua was given — was offered immunity at various points.
MR. EVANS: I don't have any objection to it because I also remember Ms. Adelson testified.
JUDGE EVERETT: Then it will read, for example, "a witness who claims to have helped the defendant commit a crime, has been promised immunity from prosecution, or hopes to gain more favorable treatment".
JUDGE EVERETT: I guess this really isn't a "his or her" — this is just really her case.
JUDGE EVERETT: Mr. Evans, is there any objection to editing out "his" and the "or" from "hopes to gain"?
MS. MEYERS: We would object, Your Honor. I don't know that the evidence came out at trial, but Mr. Rivera has written quite a few letters to the State, and I believe he's filed a number of motions asking for a reduced sentence based on his cooperation and testimony. So I believe it's —
JUDGE EVERETT: Well, if it didn't come out at trial, those would be facts not in evidence, would they not?
MS. MEYERS: They would be, but I —
JUDGE EVERETT: Ms. Meyers, there's not a good faith argument for arguing facts not in evidence.
MS. MEYERS: Well, I wouldn't say it's not good faith — it's just confused. So no, that's fine, Your Honor.
JUDGE EVERETT: All right. Mr. Evans, unless you have an issue, I'll leave it in. But really, the only person the jury has heard that's hoping to gain favorable treatment is Ms. Magbanua.
MR. EVANS: Yes, sir. I, I don't have any objection to removing it.
JUDGE EVERETT: Very well. "Hopes to gain more favorable treatment in her own case may —"
JUDGE EVERETT: "— have a reason to make a false statement in order to strike a good bargain with the State." All — Right. At this portion, it will remain "his or her" because this would go to both Rivera and Magbanua. There are — no children witnesses in this matter. Defendant — has testified. So that will be given.
JUDGE EVERETT: "The defendant in this case has become a witness. You should apply the same rules to consideration of his testimony that you apply to the other witnesses."
JUDGE EVERETT: Witness talked to the lawyer. Is this being requested?
MR. EVANS: Yes, Your Honor. I believe they have, both sides.
MR. EVANS: From what I understand. From what I saw, several witnesses have been talking to lawyers.
JUDGE EVERETT: And I will just place an "or" between "his" and "her", and the "given all cases" will be given. Yes.
JUDGE EVERETT: Ms. Meyers?
MS. MEYERS: I'm not sure I remember what testimony that is about a witness talking to a lawyer, other than the defendant talking to his own attorneys. And I don't know that that warrants any instruction.
JUDGE EVERETT: Are you asking for it to be removed?
MS. MEYERS: Yes, Your Honor.
JUDGE EVERETT: Mr. Evans, is there a specific piece of the testimony that you're referring to for why it should remain?
MR. EVANS: One of the defendant did, I recall, testify this morning that he had talked to his lawyer. And then I'm trying to remember during the direct or cross of Ms. Magbanua, if there was any discussion about her talking with her lawyer or with the prosecutor. I believe in reference to both the proffer and also the lack of her attorneys being here, it came up in both contexts.
JUDGE EVERETT: Is there any further argument from the defense? I would think this line is fairly benign — it's not otherwise alluding to anyone doing something improper.
MS. MEYERS: Oh, yeah. Yes, Your Honor. I think in connection with the proffers, is that — Magbanua — ah, the State is correct that this — like Magbanua did testify that she did not speak to her, did not have her lawyers present. So that's "present in the courtroom" or "present during the proffer itself"? "Present during the proffer" is what I believe she said, or maybe she was referring to the courtroom. But either way, it's fine, Your Honor.
JUDGE EVERETT: Very well. Defendant's statements — this will be given. Any objection or request to the wording?
MS. MEYERS: I don't believe the defend— my understanding is 3.9 reverses statements that Mr. Adelson would have made to police, and he was never interviewed by police.
JUDGE EVERETT: You're asking for it to be removed? I'll remove it.
MS. MEYERS: Oh — Yes, Your Honor. I apologize.
JUDGE EVERETT: Very well. I do believe this does raise the context of law enforcement statements at the same time as there was an active wire — it kind of straddles that line. But I will remove, unless the State is asking for it to be given for some reason.
MR. EVANS: No, sir. I'm not asking for it to be given.
JUDGE EVERETT: Right. Rules for deliberation, 3.10.
JUDGE EVERETT: Any objection or request?
MS. MEYERS: Not from the defense, Your Honor.
MR. EVANS: It's fine, Your Honor.
JUDGE EVERETT: Cautionary instruction. Any objection or request?
MR. EVANS: No, sir.
MS. MEYERS: No, Your Honor.
JUDGE EVERETT: 3.12 sub a. Any objection or request?
MR. EVANS: No, sir.
JUDGE EVERETT: 3.12 verdict. Any objection or request?
MR. EVANS: No, sir.
JUDGE EVERETT: I will modify the verdict form to get rid of the lessers for count one.
MR. EVANS: Yes, sir.
JUDGE EVERETT: The verdict form will read: "We, the jury, find as follows as to count one of the indictment, first-degree murder. Check only one letter choice as to this count. Option A, the defendant is guilty of first-degree murder."
JUDGE EVERETT: "Option B, the defendant is not guilty as to count one."
JUDGE EVERETT: "Count two: We, the jury, find as follows as to count two of the indictment."
JUDGE EVERETT: "Conspiracy to commit" — and I'll just make it consistent here — "first-degree murder."
JUDGE EVERETT: "Check only one letter choice as to this count."
JUDGE EVERETT: "Option A, the defendant is guilty of conspiracy to commit first-degree murder."
JUDGE EVERETT: "Option B, the defendant is not guilty as to count two."
JUDGE EVERETT: "Count three: We, the jury, find as follows as to count three of the information."
JUDGE EVERETT: "Solicitation to commit first-degree murder."
MS. MEYERS: Your Honor, I believe on that, I believe it should read "indictment".
JUDGE EVERETT: Oh, yes, it should. Thank you.
JUDGE EVERETT: "We, the jury, find as follows as to count three of the indictment, solicitation to commit first-degree murder."
JUDGE EVERETT: "Check only one letter choice as to this count."
JUDGE EVERETT: "Option A, the defendant is guilty of solicitation to commit first-degree murder."
JUDGE EVERETT: "Option B, the defendant is not guilty as to count three." And then to be signed and dated by the foreperson.
MR. EVANS: It should be November, I believe.
JUDGE EVERETT: Yes. I've already made that change.
MR. EVANS: You were an optimist when you put in October.
JUDGE EVERETT: Well, you never know.
JUDGE EVERETT: All right. 2.7, closing. Any objection or request?
MR. EVANS: No, sir.
JUDGE EVERETT: 3.13, submitting the case.
JUDGE EVERETT: Really, the main edit to be made in this is what will go back with them.
JUDGE EVERETT: What I have in my edit now is: the audio, cell-phone summary discs, jump drives, photographic and video exhibits will be sent into the jury room when you begin to deliberate. If you wish to see any other exhibits, please request that in writing. Excepts of defense — I think the main thing as it relates to any disc or multimedia piece of evidence: nothing else is on there except what needs to be on there, so it's not causing any potential for a mistrial. If you all need to review what is going to go back to ensure this, it's probably a good idea, especially since we have all afternoon. But that would — that would be me putting a bug in your ears, so there's nothing going back there that shouldn't be.
MS. MEYERS: We will. We have... no, we have not submitted any electronic evidence, Your Honor, but we will confer with state to ensure that the transcripts aren't part of—
JUDGE EVERETT: Yes.
MS. MEYERS: —of the wires that go back, because I believe all of those were just demonstrative for being out here. Once they're in there, it's just the raw footage or raw audio. Yes, sir.
JUDGE EVERETT: Okay. Right. Any other requests or objections as to the instructions?
MR. EVANS: No, sir.
MS. MEYERS: No, Your Honor.
JUDGE EVERETT: I will send both sides a copy of what has just been edited on my screen.
JUDGE EVERETT: You'll have an opportunity to review it further if you wish, and before we get started on Monday morning, if something needs to be changed — well, I'll put it this way: if you're asking for anything else, please email my assistant immediately so that way on Monday we can just jump into it and keep rolling. Yes. Right. We are in recess.