2.Ann Elizabeth Cunningham — Direct/Cross/Redirect
532 linesJUROR: Good morning.
JUDGE EVERETT: I hope everyone had a good, restful, long weekend. At this point in time, we are going to begin with the defense's case in chief.
Mr. Zelman, you may call the defense's first witness.
MS. FULFORD: The defense would call Annie Cunningham.
JUDGE EVERETT: Please raise your right hand.
whereupon, ANNE CUNNINGHAM was called as a witness, having been first duly sworn, was examined and testified as follows:
JUDGE EVERETT: You may take your seat. Please speak loudly and clearly. You can adjust the microphone as you need to.
DIRECT EXAMINATION BY MS. FULFORD:
MS. FULFORD: Good morning.
ANN ELIZABETH CUNNINGHAM: Good morning.
MS. FULFORD: Just pull that microphone a little over closer to you. There you go.
MS. FULFORD: Make sure you speak into it so everyone can hear you.
ANN ELIZABETH CUNNINGHAM: Yes, ma'am.
MS. FULFORD: If you could, tell us your name and then spell it for the court reporter.
ANN ELIZABETH CUNNINGHAM: My name is Anne Elizabeth Cunningham, A-N-N-E, ~+E-L-I-Z-A-B-E-T-H, Cunningham, C-U-N-N-I-N-G-H-A-M.
MS. FULFORD: Thank you. Ms. Cunningham, you are aware why we are here today, correct?
ANN ELIZABETH CUNNINGHAM: Yes, ma'am.
MS. FULFORD: Okay. I don't want your address, but where do you live?
ANN ELIZABETH CUNNINGHAM: I live in Naples, Florida, and New Jersey.
MS. FULFORD: So you spend some time in New Jersey during the year and some time in the state of Florida?
ANN ELIZABETH CUNNINGHAM: That is correct.
MS. FULFORD: All right. And, tell us, what did you do -- are you retired?
ANN ELIZABETH CUNNINGHAM: yes, I am.
MS. FULFORD: Okay. And what did you do for your career?
ANN ELIZABETH CUNNINGHAM: I was a teacher, a special education teacher.
MS. FULFORD: Okay. Do you know Donna Adelson?
ANN ELIZABETH CUNNINGHAM: Yes, I do.
MS. FULFORD: And how long have you known Mrs. Adelson?
ANN ELIZABETH CUNNINGHAM: Since 2009.
MS. FULFORD: Okay. And how is it that the two of you met?
ANN ELIZABETH CUNNINGHAM: Excuse me? I couldn't --
MS. FULFORD: How did you meet?
ANN ELIZABETH CUNNINGHAM: we met when my life partner and I drove to Florida and arrived on Christmas Eve. And the only place that was open was a Chinese restaurant. And he bit into a spare rib and cracked his tooth. So he actually went to high school with Harvey, and Harvey was a practicing dentist at the time.
MS. FULFORD: And what is his name?
ANN ELIZABETH CUNNINGHAM: Ronald Gutterson.
MS. FULFORD: Okay. And so he cracked his tooth, and what happened?
ANN ELIZABETH CUNNINGHAM: And he called a mutual friend from high school also and said, who do we know in South Florida who can help me? And our friend mentioned Harvey's name, and we called him and he came in the next day to treat Ronnie.
MS. FULFORD: Okay. And when you said they went to high school together, that wasn't in Florida, right?
ANN ELIZABETH CUNNINGHAM: No. It was in Manhattan, New York.
MS. FULFORD: Okay. All right. very good. So he was able to take care of Ronald?
ANN ELIZABETH CUNNINGHAM: Yes. He made a special trip -- it was Christmas Day -- to come in and care for him.
MS. FULFORD: Okay. And then how did that lead to you meeting Mrs. Adelson?
ANN ELIZABETH CUNNINGHAM: when Ron returned, he said that he had met -- he had remet a former high school classmate of his and that he was a very lovely man and that he thought it would be very nice if maybe we had dinner together with his wife.
MS. FULFORD: And did you do that?
ANN ELIZABETH CUNNINGHAM: we did.
MS. FULFORD: Okay. And from there, did you develop a strong friendship?
ANN ELIZABETH CUNNINGHAM: we did. we all got along very well and developed a friendship.
MS. FULFORD: Okay. And when you spent your time in Florida, was that Naples at that point?
ANN ELIZABETH CUNNINGHAM: No, it was in Southeast Florida, Aventura.
MS. FULFORD: All right. And was that closer to where the Adelsons were living at that time?
ANN ELIZABETH CUNNINGHAM: Yes, it was.
MS. FULFORD: So did you spend quite a bit of time together?
ANN ELIZABETH CUNNINGHAM: we did.
MS. FULFORD: Socializing?
ANN ELIZABETH CUNNINGHAM: we did.
MS. FULFORD: Did you travel together at all?
ANN ELIZABETH CUNNINGHAM: Quite often.
MS. FULFORD: Okay. So you had a lot of contact over the years?
ANN ELIZABETH CUNNINGHAM: very much so.
MS. FULFORD: Okay. Did you have the opportunity to speak to her on the telephone when you were away in New Jersey?
ANN ELIZABETH CUNNINGHAM: Absolutely.
MS. FULFORD: would you say you had regular contact?
ANN ELIZABETH CUNNINGHAM: Regular contact.
MS. FULFORD: I'm going to tell you. This nice young lady over here, she's typing every word that we're saying. And I have a bad habit of talking over people, and she will shoot me if I do that. So I'm going to --
ANN ELIZABETH CUNNINGHAM: And I have a bad habit of speaking quickly.
MS. FULFORD: So you and I are going to need to make sure we wait until the other person finishes before we start to speak, okay?
So you had regular phone contact with Mrs. Adelson while you were in New Jersey each year?
MS. FULFORD: And then spending time together while you were in Florida?
MS. FULFORD: And you said it started out in Aventura, Florida, and that was close to where she lived. At some point, you got your home then in Naples; is that right?
ANN ELIZABETH CUNNINGHAM: That is correct.
MS. FULFORD: But still continued to spend time with the Adelsons?
MS. FULFORD: Okay. Did you have an opportunity to meet her children?
ANN ELIZABETH CUNNINGHAM: Yes, I did. I met two of her children.
MS. FULFORD: And who were they?
ANN ELIZABETH CUNNINGHAM: I met wendi, and I met Charlie.
MS. FULFORD: Okay. Did you have an opportunity with the Adelsons to spend time with wendi, her children, and Danny?
MS. FULFORD: Okay. And you never met Rob?
MS. FULFORD: Okay. All right. How would you best describe Donna Adelson and what you've come to know of her over these many years?
MS. CAPPLEMAN: Objection. Relevance and 404, Your Honor.
JUDGE EVERETT: Sustained.
MS. FULFORD: May we approach?
JUDGE EVERETT: You may.
MS. FULFORD: Thank you.
(Sidebar conference as follows:)
JUDGE EVERETT: What is your response?
MS. FULFORD: My response is this entire case, from opening through every witness has described Mrs. Adelson as a hateful, mean, aggressive person who had somebody killed. The fact that her friend is aware that she is the exact opposite of that is very relevant, Judge.
JUDGE EVERETT: As to the traits of the Defendant, I believe this has already been explored by both or at least one State witness.
But, Ms. Cappleman, response?
MS. CAPPLEMAN: It's improper character evidence, Your Honor. She's said hateful things toward this victim. That's relevant. what's not relevant is that she's a real nice gal according to her friends.
JUDGE EVERETT: JI believe when this came up in the State's case in chief, the defense opened the door on the character traits. And then I believe Robert Adelson and some others testified on this topic. However, Ms. Fulford, as to this witness having anything relevant to testify to other than the character traits of your client, what does she actually have to say concerning Counts 1, 2, or 3?
MS. FULFORD: I didn't call her just to be a character witness. She has actual evidence of what happened with my client when the murder took place.
JUDGE EVERETT: All right. As to the character traits of the Defendant, the defense opened the door. The State has provided evidence on this matter. It is at issue before the jury. However, in rebuttal, once again, I'm going to caution you, the further that this goes, the more the State gets to do in rebuttal. Everyone is clear on this?
MS. FULFORD: Yes, Judge.
(Sidebar conference concluded.)
JUDGE EVERETT: The objection is overruled on 404 grounds.
As to the relevance, let's move to that, Ms. Fulford.
MS. FULFORD: Thank you, Judge.
BY MS. FULFORD:
MS. FULFORD: with respect to Mrs. Adelson and your observations of her over these, I guess, 15 years, have you found her to be a hateful person?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: Is she aggressive towards others?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: Have you ever heard her threaten anyone?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: Have you ever seen her harm anyone?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: Have you ever heard her threaten to have somebody harmed?
MS. FULFORD: Did she ever make statements to you -- well, let me ask you this first. You were friends with her obviously when Wendi was going through her divorce?
MS. FULFORD: During that time period, through the divorce and up to the time that Danny Markel was killed, you're aware that he was murdered?
ANN ELIZABETH CUNNINGHAM: Yes, I am.
MS. FULFORD: At any time during that period, did she ever say she wanted to have Danny Markel killed?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: Ever say she wanted him to be harmed?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: She got upset, correct?
MS. FULFORD: And how is it that she displayed her anger over that situation?
ANN ELIZABETH CUNNINGHAM: She would be frustrated, and then she would calm down. And she told me that she --
MS. CAPPLEMAN: Objection. Hearsay.
JUDGE EVERETT: Sustained.
BY MS. FULFORD:
MS. FULFORD: You can't say what she said.
ANN ELIZABETH CUNNINGHAM: Yes, ma'am.
MS. FULFORD: Okay. But during that time period, did she ever do anything other than vent to you about it?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: Did she ever claim she was going to do anything about it?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: Okay. would you say that she is supportive of her children?
MS. FULFORD: And she is -- she's Jewish. Are you as well?
ANN ELIZABETH CUNNINGHAM: Yes, I am.
MS. FULFORD: Okay. Did you find her parenting consistent with the traditions of raising Jewish children?
MS. FULFORD: There's been some testimony that she kind of managed her kids' lives. Did she give them advice?
MS. FULFORD: Did the children, as they were adults, make up their own minds about what they wanted to do?
ANN ELIZABETH CUNNINGHAM: Absolutely.
MS. FULFORD: Now, you indicated that you would talk on the phone with Mrs. Adelson. Did you use home phones to do that during some of the period of time?
ANN ELIZABETH CUNNINGHAM: Pardon me? I'm sorry.
MS. FULFORD: Home phones, like landlines.
ANN ELIZABETH CUNNINGHAM: Sometimes.
MS. FULFORD: Okay. Did you use cell phones?
ANN ELIZABETH CUNNINGHAM: Many times.
MS. FULFORD: Okay. Did you travel with Harvey and Donna Adelson?
ANN ELIZABETH CUNNINGHAM: Many times.
MS. FULFORD: And as part of your travel, did you go overseas?
MS. FULFORD: And in your travel overseas, did you ever use any of the applications that you can put on your phone?
MS. FULFORD: Okay. And do you recall which applications you-all used?
ANN ELIZABETH CUNNINGHAM: whatsApp and Viber.
MS. FULFORD: And what was the purpose of using those?
ANN ELIZABETH CUNNINGHAM: Because they -- you didn't get charged, you know, for -- and also to keep in communication if we were on a cruise or on a land trip. where are you? where are you? when are we meeting? Just because they were free, it was easy.
MS. FULFORD: So while you were overseas, instead of having to pay increased rates on your cellular plan for the United States, you could use this app for free?
MS. FULFORD: Did you use those apps with Mrs. Adelson to hide any information from law enforcement, like encrypted, so that they wouldn't know what was going on?
MS. FULFORD: I want to talk to you -- lead you forward to the date that Danny Markel was murdered. That was July the 18th of 2014. Do you recall speaking to Mrs. Adelson on that day?
ANN ELIZABETH CUNNINGHAM: Yes, I do.
MS. FULFORD: And can you explain to us how you were contacted and the nature of the conversation?
ANN ELIZABETH CUNNINGHAM: I was called, and Donna was quite hysterical.
MS. FULFORD: Okay.
ANN ELIZABETH CUNNINGHAM: And she said to me, Danny's been shot.
MS. CAPPLEMAN: Objection. Hearsay.
JUDGE EVERETT: Sustained. Do not speak to what anyone has said out of court, ma'am. Please continue.
MS. CAPPLEMAN: Move to strike, Your Honor.
JUDGE EVERETT: It is strick --
MS. FULFORD: May we approach, please?
JUDGE EVERETT: Please approach.
(Sidebar conference as follows:)
MS. FULFORD: Your Honor, these are not being offered for the truth of the matter asserted. It goes to show Mrs. Adelson's state of mind, which clearly the state of mind that the State has presented is that she's this cold-blooded killer who was providing a birthday present to her husband that Danny Markel was going to be killed. And how she responded to him being killed is certainly relevant and shows her state of mind at that time period.
JUDGE EVERETT: I believe the context was the conversation occurred when?
MS. FULFORD: The night after he was killed.
JUDGE EVERETT: And you're not offering this as an excited utterance or a recollection-remembered?
MS. FULFORD: It could be an excited utterance, Judge.
JUDGE EVERETT: well, if you are going to do that, lay the proper foundation. As to every statement the Defendant has ever made being offered for state of mind, that's not going to work. But as it relates to this being in temporal proximity to when the crime is alleged to have occurred, if you either have a hearsay exception or a basis to demonstrate this is reliable as to your client's state of mind, that's certainly something that can be argued and I will rule upon. But everything she has ever said concerning this matter, it's not state of mind, and exceptions will need to be offered.
State?
MS. CAPPLEMAN: I do not think that the following night would be a sufficient time frame. I mean, we will see what the testimony is foundation-wise, but I would not expect the following night after the incident occurred --
MS. FULFORD: It's the night of.
MS. CAPPLEMAN: Okay. I guess, it needs to be --
JUDGE EVERETT: Concerning the foundation as to how this directly goes to her state of mind and why it's reliable, I'll allow you to develop that with the witness, but, again, I want to make clear concerning this, either specific exceptions to hearsay or we need to demonstrate how these would be reliable as state of mind or being offered for that purpose.
All of the Defendant's statements to her friends, family, and others, they are not going to be admissible. Are we clear on this point?
MS. FULFORD: Yes, Judge. Just a moment, please.
JUDGE EVERETT: Go ahead.
(Pause. )
MS. CAPPLEMAN: You asked for a moment.
JUDGE EVERETT: You had asked for a moment. All right. I will allow you to lay the foundation.
MS. FULFORD: Thank you, Judge.
(Sidebar conference concluded.)
MS. FULFORD: Thank you, Judge.
BY MS. FULFORD:
MS. FULFORD: Before we talk about what she might have said to you, at the time that you spoke to Mrs. Adelson, was it the day that Danny was murdered?
ANN ELIZABETH CUNNINGHAM: when he was shot, yes.
MS. FULFORD: Okay. And, yeah, I use murdered because, obviously, he didn't pass away until the next day?
MS. FULFORD: But he was shot and barely surviving on the 18th. So that's -- when I refer to that, that's why I say that day.
MS. FULFORD: So when you spoke to her, did she call you, or did you call her; do you recall?
ANN ELIZABETH CUNNINGHAM: She called me.
MS. FULFORD: And when she called you, did she appear to be upset?
MS. FULFORD: Was she crying?
MS. FULFORD: was her tone of voice, based on your knowledge of her for the 15 years, did she seem to be upset?
MS. FULFORD: Okay. Did she seem to be at a point in time where she had just learned what had occurred?
MS. FULFORD: Did she indicate to you whether she had just learned that this had happened?
MS. FULFORD: Okay.
ANN ELIZABETH CUNNINGHAM: She did.
MS. FULFORD: I'm sorry?
ANN ELIZABETH CUNNINGHAM: Yes, she did.
MS. FULFORD: Okay. And during the course of your discussion with her about what had transpired, did she continue with this state of mind that she was upset?
MS. FULFORD: Okay. And while she was upset, what did she indicate to you?
ANN ELIZABETH CUNNINGHAM: She told me that Danny had been shot and that they were going to Tallahassee and that she was very concerned and worried about Wendi and the boys, whether they were in danger.
MS. FULFORD: Okay.
ANN ELIZABETH CUNNINGHAM: Because she did not know what -- who had shot him.
MS. FULFORD: Okay. And did she indicate whether she was concerned about Danny and him being in the hospital?
ANN ELIZABETH CUNNINGHAM: Absolutely.
MS. FULFORD: Okay. Did she indicate whether she had plans to go to see him at the hospital?
ANN ELIZABETH CUNNINGHAM: I don't recall.
MS. FULFORD: Okay. During the time that you had this conversation with her, was this the only time that you spoke to her that evening?
ANN ELIZABETH CUNNINGHAM: I believe so. Maybe one more time.
MS. FULFORD: Okay. And is it your understanding from later discussions with her, that she and her husband, Harvey, actually did come to Tallahassee?
MS. FULFORD: Okay. Did you have an opportunity to speak with her later on while she was in Tallahassee?
MS. FULFORD: Okay. And did she provide any information to you about a memorial service that took place?
MS. FULFORD: And did she tell you what had transpired at the memorial service?
ANN ELIZABETH CUNNINGHAM: She told me it was incredibly sad and painful and wrenching.
MS. FULFORD: Okay. And at the time that she was telling you this, did she still -- to be -- was she still very upset about what had happened?
MS. FULFORD: Okay. I want to go forward just a little -- a point in time. Did you continue to stay in contact with Mrs. Adelson and her husband from the time that Danny was murdered, moving forward?
MS. FULFORD: And you are aware at some point that her son, Charlie Adelson, who you said you had met, was arrested --
ANN ELIZABETH CUNNINGHAM: Yes, I was.
MS. FULFORD: -- in the case. Okay. And did you keep up with the case against Charlie in social media or news or anything?
ANN ELIZABETH CUNNINGHAM: It was -- no. TI really don't do social media, and, of course, it was on the news.
MS. FULFORD: Okay. Did you watch it on the news?
ANN ELIZABETH CUNNINGHAM: As little as possible.
MS. FULFORD: Okay. There came a time that Charlie Adelson was on trial for the charges against him. Were you aware of that?
MS. FULFORD: Okay. At that time period, in speaking to Mr. and Mrs. Adelson, was it brought to your attention that --
MS. CAPPLEMAN: Objection. Hearsay.
JUDGE EVERETT: Sustained.
BY MS. FULFORD:
MS. FULFORD: At some point, did you allow Mr. and Mrs. Adelson to stay in your home in Naples?
ANN ELIZABETH CUNNINGHAM: Yes, I did.
MS. FULFORD: For the purpose of watching the trial?
MS. FULFORD: Okay. And are you aware that they actually did stay there for a good portion of the trial?
MS. FULFORD: All right. And at some point, moving forward, did you become aware that Charlie Adelson was convicted of the offenses with which he was charged?
MS. FULFORD: Okay. were you aware that -- well, you knew their grandchildren, both of their grandchildren from Danny, correct?
MS. FULFORD: Okay. were you aware that there was a bar mitzvah planned for the younger one in January of 2023 -- no, 2024?
MS. FULFORD: Okay. And did you actually attend that?
MS. FULFORD: Did there come a point in time where, after the verdict, that you spoke to Mrs. Adelson about what in the world she was going to do?
MS. FULFORD: Okay. And did she discuss with you that she had planned --
MS. CAPPLEMAN: Objection. Hearsay.
JUDGE EVERETT: The answer would call for hearsay. Do you have an exception to offer concerning this?
MS. FULFORD: It's going to go to her state of mind, Judge.
JUDGE EVERETT: You need to lay the foundation as to why this specifically would go to state of mind, Ms. Fulford.
MS. FULFORD: Thank you.
BY MS. FULFORD:
MS. FULFORD: So could you explain to us the behavior, the -- how Mrs. Adelson was acting at the time? Don't tell us what she said yet. But how was she portraying herself at that time? Was she upset?
MS. FULFORD: Okay. How did she express that to you, that she was upset? Not in words, just your observations hearing her on the phone, et cetera.
ANN ELIZABETH CUNNINGHAM: She cried a lot.
MS. FULFORD: Okay.
ANN ELIZABETH CUNNINGHAM: She was very concerned about Harvey.
MS. FULFORD: Okay.
ANN ELIZABETH CUNNINGHAM: Very concerned about Charlie.
MS. FULFORD: Okay.
ANN ELIZABETH CUNNINGHAM: And just incredibly sad.
MS. FULFORD: Okay. And during the time that she was sad and worried about Harvey and Charlie, now that he's -- he's going to prison for life.
MS. FULFORD: You knew that?
MS. FULFORD: All right. So during that, when she's having these emotions, did she tell you that she was planning on --
MS. CAPPLEMAN: Objection. Hearsay.
JUDGE EVERETT: Please approach.
(Sidebar conference as follows:)
JUDGE EVERETT: Before we get to the objection, the issue of penalty in the case is not to be presented to the jurors.
Ms. Fulford, what was the point of that question?
MS. FULFORD: The point of the question was to lay the foundation of --
JUDGE EVERETT: No, concerning Charlie Adelson --
MS. FULFORD: Right.
JUDGE EVERETT: -- going to prison for life.
MS. FULFORD: Right. Because that goes to the reason that my client was making the plan that she was making, that he was going to prison for life. I didn't discuss what Mrs. Adelson may be facing.
JUDGE EVERETT: So we don't have to get into an issue of in any way me directing to the jurors to disregard any question or answer, I want your questions to be clear and specific. I'm not going to need to make any ruling on this matter beyond that.
Concerning the hearsay objection, Ms. Cappleman, do you need to be heard any further?
MS. CAPPLEMAN: No, Your Honor.
JUDGE EVERETT: What is the response?
MS. FULFORD: I want to go back to the sentence of Charlie Adelson. That was all brought out in the State's case about everybody was being convicted. And what is my response to --
JUDGE EVERETT: As far as conviction, that's one thing. Penalty, I don't believe was actually discussed.
MS. FULFORD: Yes, it was, Judge.
JUDGE EVERETT: Let's move on to the hearsay objection.
MS. FULFORD: It shows her state of mind, Judge, what she was thinking; how she was feeling; she was planning on committing suicide. The evidence that this witness has shows what her state of mind was at the time that she was going to be traveling. The foundation has been laid.
The State has made it clear that they believe she was actually fleeing to try to avoid prosecution. This witness's knowledge about what the plan actually was is certainly relevant, and she's already testified about how upset Mrs. Adelson was.
JUDGE EVERETT: MS. Cappleman, any remaining argument?
MS. CAPPLEMAN: It is self-serving hearsay, Judge. If Mrs. Adelson wants to tell the jury why she went to Vietnam on a one-way ticket, she needs to take the witness stand. She cannot use this witness as a conduit to everything she said about why she wanted to go to vietnam.
JUDGE EVERETT: Concerning the witness having knowledge of the Defendant being upset and what her state of mind was concerning any travel on that topic that's been raised, I'll permit it on those grounds. Beyond that, any other statements, again, we're getting into we need to actually have proper exceptions to hearsay ora foundation laid. But as to all matters the Defendant has stated to this witness or others, it has to be properly addressed with the rules of evidence.
The objection is overruled on the limited issue of travel. Beyond that, we do need to move on.
MS. FULFORD: Can I have just one second?
JUDGE EVERETT: Go ahead.
MS. FULFORD: Based on the other witnesses that we have today and the Court's ruling, we are going to need to speak to our client for just a few minutes.
JUDGE EVERETT: That's fine.
(Sidebar conference concluded.)
JUDGE EVERETT: Members of the jury, we are going to take a brief break before we continue with the direct examination of this witness. The bailiff will take you to the jury room.
(Jury exits the courtroom.)
JUDGE EVERETT: Ms. Cunningham, you may step down. Please step outside the doors. Don't discuss your testimony with any other person.
ANN ELIZABETH CUNNINGHAM: Yes, sir.
JUDGE EVERETT: Everyone can be seated.
we will resume with the testimony, we will try to at least, within the next five minutes. That should give the defense an opportunity to confer with the Defendant.
If anyone needs to use the restroom or stretch your legs, please do so now.
(Court is in recess.)
JUDGE EVERETT: Is the witness still outside the courtroom doors? Please bring her back in.
MS. FULFORD: We are waiting on Mr. Zelman, Your Honor, if that's okay.
(Pause. )
JUDGE EVERETT: Please come back up to the witness stand, ma'am.
Please bring in the jurors.
MR. ZELMAN: Judge, can we approach while the jurors are coming in?
JUDGE EVERETT: Very briefly. As getting through a timely defense case, we are not going to have an opportunity for this many conferrals at sidebar and with counsel and with client, but please approach very briefly.
(Sidebar conference as follows:)
JUDGE EVERETT: Go ahead.
MR. ZELMAN: In looking at Ehrhardt, the testimony that this witness is intending to offer is a statement of Donna Adelson's state of mind to show her subsequent acts. Normally, we would have a witness testify, for example, Mrs. Adelson, if she so chose to testify, prior to offering corroboration for this witness.
Unfortunately, her life partner, Rob Gutterson, has bladder cancer, and he starts experimental treatment in New Jersey tomorrow. So she and Mr. Gutterson flew down so that they could both offer their testimony and he could get the treatment for his bladder cancer. The timing obviously isn't ideal for the offering of the testimony, but it's similar to what the State was permitted to do.
JUDGE EVERETT: The difference is the State had to tie it up. Your client cannot be made to testify by me, you, or anyone.
MR. ZELMAN: I understand.
JUDGE EVERETT: That is a very significant difference.
MR. ZELMAN: I understand. It still goes to state of mind of a subsequent act. The declarant is Mrs. Adelson.
JUDGE EVERETT: Ms. Cappleman, very briefly.
MS. CAPPLEMAN: The subsequent act isn't an issue. They are offering this to prove that she then went to Vietnam? No. They are offering it to prove why she went to Vietnam. She needs to testify to that. It is self-serving hearsay. It is not a proper excited utterance because excited utterance relates to the exciting event that you are under the stress of when you made the statement.
If she made a statement about Charlie's conviction, maybe that comes in as an excited utterance. But what does going to Vietnam have to do with it?
JUDGE EVERETT: Concerning this, because of the nature of the Defendant's constitutional right where she does not have to testify, nor can I make her, nor can it in any way be implicated improperly before the jury, if you are seeking to offer this as proof of a subsequent act, that is corroboration. It can be done, but it sounds like she's going to need to testify.
MR. ZELMAN: I understand the Court's ruling.
JUDGE EVERETT: Let's move on.
MR. ZELMAN: Thank you.
(Sidebar conference concluded.)
JUDGE EVERETT: Please bring in the jurors.
(Jury enters the courtroom.)
JUDGE EVERETT: Everyone can be seated.
The objection is sustained. You may continue with your examination of this witness as to any other matters.
MS. FULFORD: Thank you.
BY MS. FULFORD:
MS. FULFORD: Ms. Cunningham, we were talking about the fact that you were speaking to Mrs. Adelson after the verdict came out about her son being convicted, correct?
MS. FULFORD: Was she upset about that?
MS. FULFORD: was she crying?
MS. FULFORD: was she -- did she appear to be distraught about the circumstances?
MS. FULFORD: was her actions and her words to you when she was discussing this with you, was she in a calm state or an excited state?
ANN ELIZABETH CUNNINGHAM: Very excited.
MS. FULFORD: Okay. And during the course of her conversation with you in that state, did it come to your attention that Mrs. Adelson was considering an option about her life because all of this had just happened?
MS. FULFORD: Okay. And what was that?
ANN ELIZABETH CUNNINGHAM: She was considering taking her own life.
MS. FULFORD: And if you know -- and if you don't, just say you don't. But if you know, from those same conversations with her in that state of mind that she had, did she ever discuss with you a potential plan to just get away to clear her head?
MS. FULFORD: Okay. May I have just one moment?
JUDGE EVERETT: Go ahead.
MS. FULFORD: Thank you.
BY MS. FULFORD:
MS. FULFORD: Just one last subject I wanted to ask you about. As a Jewish mother and grandmother, are the traditions of bar mitzvahs and bat mitzvahs, are those important to you-all?
ANN ELIZABETH CUNNINGHAM: Very important.
MS. FULFORD: Okay. Based on your relationship with Mrs. Adelson, was the bar mitzvah that was upcoming for her younger grandson from Mr. Markel, was that something that she was participating in?
MS. FULFORD: was she excited about attending?
MS. FULFORD: TI don't have anything further.
JUDGE EVERETT: Cross-examination?
CROSS- EXAMINATION BY MS. CAPPLEMAN:
MS. CAPPLEMAN: Ma'am, are you familiar with the Defendant's statement that she could be buried in the bar mitzvah dress that she bought?
ANN ELIZABETH CUNNINGHAM: No, I'm not.
MS. CAPPLEMAN: I guess, if she was going to be buried in that dress, she probably wasn't, at least at the time she made that statement, going to be making it to bar mitzvah, would you agree?
ANN ELIZABETH CUNNINGHAM: No. She was always going to be making it to the bar mitzvah as far as I knew.
MS. CAPPLEMAN: Even if she was dead and buried, she was going to =make it?
ANN ELIZABETH CUNNINGHAM: I never heard that.
MS. CAPPLEMAN: Okay. Was she suicidal when you spoke with her after Charlie's verdict?
MS. CAPPLEMAN: Okay. You were best friends with her?
MS. CAPPLEMAN: Okay. And she would call and vent to you about Danny Markel?
ANN ELIZABETH CUNNINGHAM: Sometimes.
MS. CAPPLEMAN: All right. And did she ever call him names?
ANN ELIZABETH CUNNINGHAM: Not to my knowledge, not to me.
MS. CAPPLEMAN: Did she share with you that she was planning to offer a bribe to Mr. Markel to facilitate relocation?
ANN ELIZABETH CUNNINGHAM: I don't recall.
MS. CAPPLEMAN: Did she talk to you about plans to threaten or to convert the children to Christianity in order to strongarm Mr. Markel?
ANN ELIZABETH CUNNINGHAM: She mentioned that she had said that, and she said, That was so foolish of me.
MS. CAPPLEMAN: when did she say that?
ANN ELIZABETH CUNNINGHAM: I don't know whether we were together or on a phone call. I'm not sure.
MS. CAPPLEMAN: Did she ever tell you that she was being extorted in reference to Mr. Markel's murder?
ANN ELIZABETH CUNNINGHAM: Eventually, yes.
MS. CAPPLEMAN: Okay. And when you say "eventually," when did she tell you that?
ANN ELIZABETH CUNNINGHAM: We were on a trip to Japan together.
MS. CAPPLEMAN: Okay. when was the trip to Japan?
ANN ELIZABETH CUNNINGHAM: we took so many trips. I'm not exactly sure of the year.
MS. CAPPLEMAN: Was it between the murder and the first arrests?
ANN ELIZABETH CUNNINGHAM: I don't recall.
MS. CAPPLEMAN: And when she told you that she was being extorted, then, naturally, you learned that she knew who had killed Dan Markel?
MS. CAPPLEMAN: Obviously, it's the people that are extorting her, right?
ANN ELIZABETH CUNNINGHAM: She didn't know what -- are you talking about -- yeah, I guess. I don't know.
MS. CAPPLEMAN: She was forced to make payments to the people that killed Dan Markel?
ANN ELIZABETH CUNNINGHAM: Yes, yes.
MS. CAPPLEMAN: That's what the checks were all about, right?
ANN ELIZABETH CUNNINGHAM: I don't know about the checks.
MS. CAPPLEMAN: well, what -- when she told you she was being extorted, if it wasn't about the checks, how was she being extorted?
ANN ELIZABETH CUNNINGHAM: She was -- I'm confusing that with the bump, I believe, that Charlie was being extorted by Katherine.
MS. CAPPLEMAN: Prior to the bump, you knew that Charlie was being extorted by Katherine?
ANN ELIZABETH CUNNINGHAM: No, I believe it was afterwards.
MS. CAPPLEMAN: After the bump, you learned that Charlie was being extorted by Katherine?
ANN ELIZABETH CUNNINGHAM: I'm not sure of the timeline.
MS. CAPPLEMAN: And when you learned that Charlie was being extorted by Katherine, you learned that your friend, your best friend, Donna Adelson, was also being forced to write these checks as payment to the killers that were extorting?
ANN ELIZABETH CUNNINGHAM: I don't recall.
MS. CAPPLEMAN: And when the phone call was made to you, you were saying, I guess it was the night of the verdict, you got the phone call, and she was very upset and suicidal and so forth. what was your phone number at that time?
ANN ELIZABETH CUNNINGHAM: I believe my cell number.
MS. CAPPLEMAN: Okay. what is your cell number? Just give me the last four digits if you don't want to put the --
MS. CAPPLEMAN: And did you watch the trial of Charlie Adelson?
ANN ELIZABETH CUNNINGHAM: At the very end.
MS. CAPPLEMAN: Okay. And during the trial of Charlie Adelson, were you in regular communication with your best friend, Donna Adelson?
ANN ELIZABETH CUNNINGHAM: Yes, but we didn't really discuss the trial.
MS. CAPPLEMAN: well, you -- would it refresh your recollection to review your text messages during the trial?
ANN ELIZABETH CUNNINGHAM: I guess. It's a long time ago.
MS. CAPPLEMAN: Okay. I'm going to approach and show you those. I'm going to just draw your attention to -- I've circled a few here.
MS. CAPPLEMAN: But you're free to look at as many as you need to --
MR. ZELMAN: Could we see the text messages, please?
MS. CAPPLEMAN: -- for context.
JUDGE EVERETT: If you please can let the defense --
ANN ELIZABETH CUNNINGHAM: Oh, yes. This part, I do recall.
MS. CAPPLEMAN: You do recall that. Thank you.
JUDGE EVERETT: If you can show the defense the same messages you are referring to.
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: So you did keep some tabs on your friend during the trial of her son?
MS. CAPPLEMAN: And she was watching the trial of her son, as we learned, at your residence, right?
MS. CAPPLEMAN: And when Charlie Adelson was convicted, you disagreed with the verdict, right?
MS. CAPPLEMAN: You think the jury got it wrong, didn't you?
MS. CAPPLEMAN: And that was out of loyalty to your friend, right?
ANN ELIZABETH CUNNINGHAM: No. I thought they got it wrong.
MS. CAPPLEMAN: They got it wrong. Okay. And you, in fact, said to Mrs. Adelson, I know you are all innocent, all caps “all,” right?
MS. CAPPLEMAN: Meaning Charlie's innocent?
MS. CAPPLEMAN: wendi's innocent?
ANN ELIZABETH CUNNINGHAM: Definitely.
MS. CAPPLEMAN: No Adelson had anything to do with the murder of Dan Markel; isn't that what you think?
MS. CAPPLEMAN: Okay. And when she went to Vietnam -- or was trying to go to Vietnam to clear her head, she was going to clear her head in a non-extradition country. Can you agree with that?
ANN ELIZABETH CUNNINGHAM: I wasn't aware it was non-extradition.
MS. CAPPLEMAN: Okay. She was going to clear her head with a one-way ticket to go do the head clearing?
ANN ELIZABETH CUNNINGHAM: She had no idea how long they were staying or where they would go.
MS. CAPPLEMAN: Are you familiar with her statement that she's hoping to make it out of the airport on time?
MS. CAPPLEMAN: Hoping to make it out before what?
ANN ELIZABETH CUNNINGHAM: No. She meant the plane was on time.
MS. CAPPLEMAN: No, ma'am. I'm referring to, Hoping to make it out before law enforcement apprehended her. Are you aware of that?
MS. CAPPLEMAN: She didn't say that statement to you?
ANN ELIZABETH CUNNINGHAM: I don't recall really.
MS. CAPPLEMAN: Okay. Do you remember Mrs. Adelson texting you after the verdict and complaining that Wendi had not even called?
ANN ELIZABETH CUNNINGHAM: No, I don't.
MS. CAPPLEMAN: would it refresh your recollection to review that message?
JUDGE EVERETT: Please show the defense.
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: It's the bottom message on this page I'm handing you.
ANN ELIZABETH CUNNINGHAM: which one?
MS. CAPPLEMAN: The bottom one.
MS. CAPPLEMAN: Does that refresh your memory?
ANN ELIZABETH CUNNINGHAM: I remember Harvey -- her describing Harvey being on the floor and crying like a baby.
MS. CAPPLEMAN: Harvey's on the floor crying like a baby, and wendi hasn't even called, right? Isn't that what it says?
ANN ELIZABETH CUNNINGHAM: If she wrote that.
MS. CAPPLEMAN: If she wrote that. Didn't you just see where she wrote that?
ANN ELIZABETH CUNNINGHAM: I did. She wrote that.
MS. CAPPLEMAN: And you offered to come and be with her during that difficult time, didn't you?
ANN ELIZABETH CUNNINGHAM: I believe we did.
MS. CAPPLEMAN: One moment, please, Your Honor.
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: what type of work does your husband do -- or did he do before --
ANN ELIZABETH CUNNINGHAM: My late husband?
MS. CAPPLEMAN: -- he retired? I'm sorry. I thought you had -- is it -- maybe it's not your husband. Partner?
ANN ELIZABETH CUNNINGHAM: Partner.
MS. CAPPLEMAN: Is that Mr. Gutterson?
MS. CAPPLEMAN: what type of work does he do, or what's his background?
ANN ELIZABETH CUNNINGHAM: He owns a computer consulting business.
MS. CAPPLEMAN: Okay. Does he also do anything with real estate?
ANN ELIZABETH CUNNINGHAM: He did with his ex-wife. They flipped apartments a lot. They moved a lot.
MS. CAPPLEMAN: Okay.
ANN ELIZABETH CUNNINGHAM: Made a lot of money in real estate.
MS. CAPPLEMAN: No further questions.
JUDGE EVERETT: Redirect examination?
REDIRECT EXAMINATION +BY MS. FULFORD:
MS. FULFORD: Just to make sure I understand your testimony correctly, Donna didn't tell you at the time she was writing checks that she was writing checks, correct?
MS. FULFORD: And when you spoke about extortion, you were talking about Charlie being extorted?
MS. FULFORD: Donna, did she ever say she was actually being extorted or how?
ANN ELIZABETH CUNNINGHAM: No. No.
MS. FULFORD: Okay. Now, you were asked questions by the State which implied that Mrs. Adelson was going to a non-extradition country. She wasn't returning, right?
ANN ELIZABETH CUNNINGHAM: That's what I was told.
MS. FULFORD: Just now while you were testifying?
ANN ELIZABETH CUNNINGHAM: Yes. Yes.
MS. FULFORD: You didn't hear that before?
MS. FULFORD: Did Donna ever tell you she wasn't coming back?
ANN ELIZABETH CUNNINGHAM: Never.
MS. FULFORD: In fact, she told you she was coming back, didn't she?
ANN ELIZABETH CUNNINGHAM: Definitely.
MS. FULFORD: And she was coming back without a doubt to go to what?
ANN ELIZABETH CUNNINGHAM: L.A.'S bar mitzvah.
MS. FULFORD: TI don't have anything further.
JUDGE EVERETT: You may step down. will this witness be recalled by the defense or the State potentially in rebuttal?
MS. CAPPLEMAN: No, Your Honor. She is released.
JUDGE EVERETT: will this witness be recalled by the defense?
MS. FULFORD: No, Judge. I'm sorry.
JUDGE EVERETT: You are released, Ms. Cunningham.
ANN ELIZABETH CUNNINGHAM: Excuse me?
JUDGE EVERETT: You are released.
ANN ELIZABETH CUNNINGHAM: Thank you.
JUDGE EVERETT: Have a good day.
Please call your next witness.
MR. ZELMAN: Your Honor, the defense's next witness will be Ronald Gutterson.