Defense Motion for Judgment of Acquittal
91 linesMR. ZELMAN: Principal instruction requires that, in the light most favorable to the State at this stage of the trial, there is competent evidence that Donna Adelson helped somebody else or other persons commit the crime — specifically that she intended the crime to occur. I think we go back to the initial statement I made about intent, but also that she did some act or said something that was intended to and that did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime. For this, I think it's important that we look at how that is defined. The most recent case on the issue, where it was discussed at length, is Denise Williams, and the Williams case — the First DCA focused on what was done the day of. So in this case it would be July 18th of 2014. The cite for Mr. Williams' case is 314 So. 3d 775. It's the First DCA from '21.
MR. ZELMAN: It's our position, Your Honor, that there's no evidence that Donna Adelson did some act or said something that was intended to and that can incite, cause, encourage, assist, or advise the other person or persons to commit the crime. And as Williams indicated, you have to focus on what Mrs. Adelson did on July 18th of 2014.
MR. ZELMAN: Williams' decision says proof of conspiracy alone is not enough.
MR. ZELMAN: And so, in the light most favorable to the State, let's go through briefly what the evidence reflects.
MR. ZELMAN: Daniel Markel was killed by Sigfredo Garcia, who was driven to and from the scene by Luis Rivera on July 18th of 2014.
MR. ZELMAN: Both of them were solicited by Katherine Magbanua to drive from South Florida to Tallahassee.
MR. ZELMAN: Luis Rivera testified that they were hired by the Wendi lady to get her kids back.
MR. ZELMAN: Luis Rivera testified that he saw that Sigfredo Garcia had a picture of Markel with some writing which he believed to be an address.
MR. ZELMAN: They made two trips to Tallahassee. During both of those trips, according to Mr. Lacasse, Wendi Adelson acted extremely anxious and exhibited odd behavior.
MR. ZELMAN: At the time of both of those trips, Mr. Lacasse was scheduled to be heading out of town, and he drove a vehicle that looked similar to the ones rented by the shooter.
MR. ZELMAN: There's no evidence that my client ever spoke with Katherine Magbanua, Sigfredo Garcia, or Luis Rivera.
JUDGE EVERETT: Your client did speak, however, with Charlie Adelson in the chain of communications.
JUDGE EVERETT: I believe the State's wording was the "train cars"?
MR. ZELMAN: Yes, Your Honor. I'm going to get to that.
JUDGE EVERETT: Go ahead.
MR. ZELMAN: Thank you.
MR. ZELMAN: The evidence — the undisputed evidence — is that Charlie Adelson kept stacks of stapled cash in his house.
MR. ZELMAN: There is no evidence that Donna Adelson did the same. The evidence also reflects that Charlie Adelson had a safe the size of a refrigerator.
MR. ZELMAN: There is no evidence that Donna Adelson had a similarly large safe.
MR. ZELMAN: Before Mr. Markel was murdered, Wendi Adelson told Jeff Lacasse that the only way she could leave Tallahassee is if something happened to Mr. Markel.
MR. ZELMAN: There is no evidence that Donna Adelson was aware of the statement made by Wendi Adelson. And there is no evidence that she also agreed that there was no way that Wendi Adelson could leave Tallahassee unless something happened to Dan Markel.
MR. ZELMAN: Before Mr. Markel was murdered, Wendi Adelson told Mr. Lacasse that Charlie looked into hiring a hitman in the summer of 2013 after relocation was denied. There is no statement in evidence whatsoever that Donna Adelson was either aware of that, or said or did anything to encourage that or incite that.
MR. ZELMAN: There's also no evidence that has been admitted that Donna Adelson was aware of the claim — I'm sorry — that Charlie Adelson had actually looked into that. Additionally, before Mr. Markel was murdered, whenever Charlie was on the phone with his mother, he would walk out of the house to speak with his mother on the phone when Katherine Magbanua was there.
MR. ZELMAN: After Mr. Markel was murdered, Katherine Magbanua went to Charlie's house.
MR. ZELMAN: According to the evidence in the light most favorable to the State, Charlie told her that his parents had just left.
MR. ZELMAN: I rewatched her testimony over the weekend.
MR. ZELMAN: During her testimony, she did not say that Charlie said anything at that point about his parents leaving money at the house.
MR. ZELMAN: She testified that she woke up the next morning and Charlie said he had put the money in the trunk.
MR. ZELMAN: She then left and tried to locate Sigfredo Garcia.
MR. ZELMAN: She testified that when she got the money back later that day, or the following day, the money was stapled together.
MR. ZELMAN: Her testimony was pretty clear. She said, "A couple days later, I'm pretty sure I contacted him and asked him why the money was flat." She did not say that she did.
MR. ZELMAN: After Mr. Markel was murdered, Donna Adelson followed her daughter's instructions and used the last name Adelson for her grandchildren.
MR. ZELMAN: After Mr. Markel was murdered, Donna Adelson conveyed the message from their family attorney Weinstein to Rob Adelson to not talk to the cops.
MR. ZELMAN: After Mr. Markel was murdered, Donna Adelson wrote checks from Charlie Adelson's business account to Katherine Magbanua at Charlie's instruction.
MR. ZELMAN: The evidence that has been admitted reflects that that business belonged to Charlie from 2012 to 2020.
MR. ZELMAN: As this Court knows, being a manager of an LLC is not the same as being an owner.
MR. ZELMAN: After Mr. Markel was murdered and the bump happened, Donna Adelson begged the undercover to go to the cops and tell them what he knew.
MR. ZELMAN: After Mr. Markel was murdered, Charlie kept up the lie that he told Donna Adelson when discussing the arrest of Sigfredo Garcia and Luis Rivera.
MR. ZELMAN: Now, it is our position the only way that the State overcomes counts one and three is by improper stacking of inferences.
MR. ZELMAN: They have evidence that Donna Adelson allegedly hated Mr. Markel.
MR. ZELMAN: The evidence is that Donna Adelson didn't like how Dan Markel treated Wendi.
MR. ZELMAN: The evidence reflects that from 2012 to 2013, according to the emails from Donna Adelson, a non-negotiable was relocation.
MR. ZELMAN: However, after July 31st of 2013, there has been no evidence admitted in this trial that Donna Adelson said or did anything to convey the message that she would do anything for Wendi and the children to move to South Florida.
JUDGE EVERETT: There's no mention as to the argument about inferences. However, inferences plus a confession — and you're saying the State has not met the burden?
MR. ZELMAN: Judge, I'm getting to that.
JUDGE EVERETT: Please do.
MR. ZELMAN: There's no evidence that she solicited anyone to murder Markel aside from these assumptions.
MR. ZELMAN: The emails, the text messages, the testimony — no one has said that my client solicited anybody to commit murder.
MR. ZELMAN: The evidence reflects that Donna Adelson vented to Charlie Adelson about how Markel treated Wendi, but as I said, there's no evidence aside from assumption that she went a step further.
MR. ZELMAN: The State has submitted the July 17th, 2013 email to her parents' shared account, and one of her parents responded "Wow."
MR. ZELMAN: The evidence also reflects that, had it been Donna Adelson who responded, all the other email correspondence that's been admitted reflects that she would have said something much longer.
MR. ZELMAN: But even if she did know, the motion itself — and I would ask the Court to take a look at the prayer for relief in that grandmother motion — it was not to prevent Donna Adelson from spending time with the boys. It was to prevent her from spending time with the boys in contravention of the right of first refusal, not to prohibit any unsupervised contact.
MR. ZELMAN: So even if the Court were to find, in the light most favorable to the State, that my client was aware that the grandmother motion was filed —
MR. ZELMAN: — the relief that the State believes was sought is not what was sought in the motion.
MR. ZELMAN: As to the alleged confession, Your Honor, what the confession — as I heard it — was that she wrote the checks; she paid the money after.
JUDGE EVERETT: I think we'll get the court reporter to read it if need be, but go ahead.
MR. ZELMAN: What she did after the murder is not evidence of her intent prior to the murder, and that's what Williams talks about.
JUDGE EVERETT: What evidence is there, in the light most favorable to the State, that prior to the murder Mrs. Adelson did something?
MR. ZELMAN: I think that if we were before the Court on a different charge, and the statute of limitations had not expired on it, the situation might be different.
MR. ZELMAN: But we're here for principal to first-degree murder, conspiracy, and solicitation.
MR. ZELMAN: Venting about how somebody is treating their daughter is not the same as asking somebody to have them killed.
MR. ZELMAN: The evidence reflects — I know that the State's argument or belief is that the birthday gift is a murder. The birthday gift, the evidence reflects, was the party and the caterer. You have to make an inference on top of another inference that the birthday gift was murder. So focusing on what evidence exists as to my client's statements and actions prior to the murder actually happening according to Williams, judgment of acquittal is appropriate on count one.
JUDGE EVERETT: Concerning Williams specifically, was there evidence of consciousness of guilt admitted against the defendant in the same way it's been in this trial?
MR. ZELMAN: In Williams?
JUDGE EVERETT: Yes.
MR. ZELMAN: I don't believe so.
JUDGE EVERETT: So in addition to any circumstantial evidence, any inference, we also have in this record the defendant allegedly making a confession, suborning perjury, and attempting to flee.
JUDGE EVERETT: As to those pieces of evidence linking up with the others, what is your argument?
MR. ZELMAN: Well, Your Honor, I think Williams speaks to the fact that there's even more evidence. In Ms. Williams' case, you had the co-conspirator testify directly that Ms. Williams was involved in the planning, but she wasn't involved in the execution.
MR. ZELMAN: All of those, the after-the-fact things, yes, it might be relevant to consciousness of guilt.
MR. ZELMAN: However, it doesn't overcome the absence of evidence as to what Donna Adelson did on July 18th of 2014. That's what Williams speaks to.
JUDGE EVERETT: And you are disputing that she dropped off any money to Charlie Adelson on that date as payment to the trigger man?
MR. ZELMAN: What I'm saying is that there's no evidence that she knew on July 18th. In the light most favorable to the state — obviously I disagree ultimately that that's what happened, but in the light most favorable to the state, which is the standard that we're applying here today — there has to be that next step that she knew what it was for, and there's no evidence that she did. As a result, Your Honor, we're asking that the court grant judgment of acquittal of count one and count three.
JUDGE EVERETT: Response from the state?
MS. DUGAN: Considering this JOA argument as to whether there is sufficient evidence for this defendant to be a principal to the charges, the state first wants to point out the emails in this case that detail the defendant's hate for Dan Markel and her motive. If he's out of the picture, then Wendi and the grandsons can come to live in Miami where she is, and she was the person who benefited most from this crime by them being able to do that. We also heard from Luis Rivera. He said that he and Garcia followed Dan Markel's car from his home to the daycare, to the gym the day of the murder, and had surveilled Dan Markel's comings and goings from the park outside of Trescott Drive in the month before and the weekend of the murder. We also saw on the defendant's planner where in 2014 she had the year, make, model of Dan Markel's car as well as his license plate.
MS. DUGAN: We also heard from Katherine Magbanua. She said that Charlie Adelson said that his parents had just been at his house the night of the murder when she arrived, and then also told her his mom had washed the money. This was the same money that was provided to the killers and that Magbanua found was wet.
MS. DUGAN: That testimony was corroborated by phone evidence showing that the defendant stopped at Charlie Adelson's house the night of the murder. We saw the text message from her saying she's outside his house, and that was during the short stretch of highway where she has one hour unaccounted for on her drive — when the rest of her drive she was able to accomplish within the estimated time that the mapping software would think that she would have. We also heard from Rob Adelson, and heard that she told him not to talk to the FBI, and when he let her know that he already had, she said, well, you don't know anything anyway. She also had a complete lack of curiosity about what happened according to him, and said that, you know, I don't know and I don't care what happened, it's not my concern. We saw from the evidence that this defendant had access to a large amount of cash, kept her cash in a safe, and that it was very common for she and Charlie Adelson to transfer cash back and forth to each other.
MS. DUGAN: We saw that she signed 44 checks to Katherine Magbanua from Adelson Institute over the course of two years. This is despite the fact that Charlie Adelson had signing authority there. He could have done it himself if it was just him acting alone here.
MS. DUGAN: We also heard that in 2015 Harvey Adelson bought Adelson Institute back from Charlie Adelson, and we saw on the summary of the checks where roughly half the checks written to Katherine Magbanua were written from fall of 2015 to spring of 2016, where Harvey Adelson would have been back as one of the primaries in the business.
MS. DUGAN: Donna Adelson — we also saw from the bump video — she was handed an article with Danny's picture about the murder, and she calls her son. He's the first call that she makes, and she tells Charlie specifically that this involves the both of us, and that it involves the two of us, when she's talking about the article that she was handed about Dan Markel's murder.
MS. DUGAN: So while there is a lot of circumstantial evidence and inferences in this case, there is also direct evidence, and the state argues that her admission — that after being handed an article about the murder, that it involves both of us and it involves the two of us — to Charlie Adelson is direct evidence and an admission of guilt in this case. And she also tells Charlie Adelson the TV costs five, or this TV is about five, and that's the same TV that's referenced that Charlie Adelson bought instead of hiring a hitman, and that Wendi's family — that her mother helped set up as part of her alibi and emailed Wendi about — that day after the appointment was made by her father.
MS. DUGAN: When the wire took place, she and Charlie Adelson are overheard discussing the fact that they don't need to be talking on the phone, they don't need to be talking in an apartment. They go to great lengths to take a walk outside, to sit down by the water where they can't be overheard, to sit by the pool where they believe they're not able to be heard by law enforcement. And on the wire we see the same pattern of communication that was seen in the call detail records before the wire took place — Donna to Charlie to Katherine to Garcia — and this is consistent with Magbanua's testimony of how communication was relayed in this case.
JUDGE EVERETT: What do you continue specifically as to the argument of stacking inferences? What is the state's position?
MS. DUGAN: The state's position is, there are inferences in this case, there is circumstantial evidence in this case; however, there is also direct evidence. Even if there was only substantial circumstantial evidence — you know, the Bush case from the Florida Supreme Court did away with excluding every reasonable hypothesis of innocence in circumstantial evidence cases. However, that's — we have more than just that here. We have this defendant writing checks to the middleman of this murder. We have her admitting it involves the two of us. And we also have her suborning perjury by admitting to one of her friends in custody, Patricia Byrd, that she did do what she was accused of. That's what Ms. Byrd said on direct, and I clarified that with her on redirect — was it that she told you that she just wrote checks, or did you specifically ask her, did you do what she's accused of or did you do what they say you did? And she said that — no, she said she did what she was accused of. And she's also offering to pay for false testimony from Byrd and from Ms. Bernhardt, and even writing a script for Ms. Bernhardt to come in and recite in trial.
MS. DUGAN: We also have Donna Adelson adopting Charlie Adelson's extortion defense during and after Charlie's trial through text messages. And on the other hand, we have texts between Donna Adelson and Charlie Adelson in 2016 where we see that Charlie Adelson is telling her that his attorney is meeting with Garcia's attorney, and we see her reaction to that — which is not consistent with someone who believed that they were being extorted by Garcia or by that group for the past two years. We also see the 2016 text messages where we see Donna Adelson's reaction to Charlie Adelson workshopping this other possible theory of Dan Markel's murder, and our argument is that reaction is not consistent with somebody who believed that she was being extorted, according to Charlie Adelson, for the past two years.
MS. DUGAN: We also have evidence of consciousness of guilt in this case. We have her fleeing with an emergency fast-track visa she sought to obtain within hours of Charlie Adelson's verdict, and within also hours of Charlie Adelson's verdict sending a text that says basically, you know, I'm next, but that won't happen and I'll take care of that, and then going to board this flight to a non-extradition country a week later. So the state's argument is all of that circumstantial evidence combined with the direct evidence in this case in the light most favorable to the state — there has been competent substantial evidence that a reasonable trier of fact could find the existence of the elements of this crime beyond a reasonable doubt. Legal standard the court must apply at this point is reviewing the evidence in the light most favorable to the state. We have in Turner v. State, 29 So. 3d 361, and moving for a judgment of acquittal the defendant admits the facts and evidence and every conclusion favorable to the state that may be reasonably inferred from the evidence. As to the direct evidence, the circumstantial evidence, and also the consciousness of guilt evidence taken together, I believe this is sufficient to overcome the matter that was raised in Williams v. State.
JUDGE EVERETT: The motion for judgment of acquittal will be denied at this time. Does the defense, as to counts 1 and 3 specifically of the indictment, does the defense have any other motions to raise?
MR. ZELMAN: Just a moment, sir.
MR. ZELMAN: Judge, there was an issue that you raised last week concerning advice of counsel — I don't know if we can approach to address that.
JUDGE EVERETT: You may.
JUDGE EVERETT: Please bring in the jurors.