7.Charge Conference — Jury Instruction Settlement Before Closing Arguments
284 linesJUDGE EVERETT: Everyone can be seated.
Please open your copies of the jury instructions. My custom in going through the jury instructions is to go through each one. Any request or changes that are being asked for by either party, we will address as we go through each instruction.
Let's start with 3.1, introduction to final instructions. Are there any requests or changes being sought?
MR. ZELMAN: No, Your Honor.
MR. EVANS: NO, Sir.
JUDGE EVERETT: 3.2, statement of the charge. Any requests or changes?
MR. EVANS: Not from the State.
MR. ZELMAN: Your Honor, the only request that I would make is that the name of my client and the names of the charges not be in all caps.
JUDGE EVERETT: So stylistic changes?
MR. ZELMAN: Yes, Your Honor.
JUDGE EVERETT: State, do you wish to be heard?
MR. EVANS: No, sir.
JUDGE EVERETT: I will make that change. Let me make a note.
Moving on to 7.1, introduction to homicide. This is a mandatory instruction in all murder cases. As to the first paragraph, Donna Adelson is accused of first-degree murder in Count 1 of the indictment. Is there any request or change?
MR. EVANS: No, sir.
JUDGE EVERETT: AS to the next paragraph concerning lesser includeds, is the Defense asking for all category one lesser includeds?
MR. ZELMAN: Just confirming my recommendation being approved by my client, Your Honor.
Your Honor, Defense would request the manslaughter lesser.
JUDGE EVERETT: As to the second-degree lesser, are you requesting that as well? It's a category one.
MR. ZELMAN: Although it's a category one lesser, it still carries the same penalty, so we are not requesting second degree.
JUDGE EVERETT: Is the State requesting second degree as a category one lesser?
MR. EVANS: Yes, sir. We would be requesting all lessers.
JUDGE EVERETT: Very well. All category one lessers will be given.
Second paragraph will read in the introduction, first-degree murder includes the lesser crimes of second-degree murder and manslaughter, all of which are unlawful; however, a killing that was excusable or that was committed by the justifiable use of deadly force is lawful.
I believe the indictment refers to the victim as Daniel Markel. Does either party have a preference?
MR. ZELMAN: To conform with the indictment, we would request his full name, Your Honor.
MR. EVANS: Acceptable to the State.
JUDGE EVERETT: If you find Daniel Markel was killed by Donna Adelson, you will then consider the circumstances surrounding the killing in deciding if the killing was first-degree murder, second-degree murder, or manslaughter, or whether the killing was excusable or resulted from the justifiable use of deadly force.
The definition of justifiable homicide and excusable homicide, is either party seeking these? I'm not entirely certain we have any evidence in the record that would support giving them, but is either party requesting?
MR. ZELMAN: Just a moment, Your Honor.
I would agree with the Court's conclusion there, Your Honor.
JUDGE EVERETT: Mr. Evans? Ms. Cappleman?
MR. EVANS: No objection removing them.
JUDGE EVERETT: Just the definitions of justifiable and excusable homicide will be removed.
As to any other degrees, I believe the evidence remains the evidence. I do not find where there is a basis to give either set of instructions as to the lessers.
The final paragraph of the introduction will read, I now instruct you on the circumstances that must be proved before Donna Adelson may be found guilty of first-degree murder or any lesser included crime.
As to Count 1, the State is only proceeding on the premeditated theory; is that correct?
MR. EVANS: Yes, Sir.
JUDGE EVERETT: Any reference to felony murder will be removed.
The elements of first-degree premeditated murder, element one, Daniel Markel is dead. Element two, the death was caused by the criminal act of Donna Adelson. Element three, there was a premeditated killing of Daniel Markel.
MR. ZELMAN: Just the stylistic issues that we raised previously.
JUDGE EVERETT: very well. Instead of caps, they will be in upper and lower case.
Moving on to the definitions. The definition of an act will be given. Killing with premeditation, that will be given. The question of premeditation, that will be given.
The portion that will be omitted, give only if there is evidence the Defendant acted in the heat of passion on legally adequate provocation, that will be removed.
Instruction 3.4, this deals with the lessers. Is there any objection or request other than the stylistic issue previously raised?
MR. EVANS: NO, Sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: 7.4, second-degree murder. Introduction to homicide will be given. This portion of the instruction will be removed. To prove the crime of second-degree murder, the State must prove the following three elements beyond a reasonable doubt. Element one, Daniel Markel is dead. Element two, the death was caused by the criminal act of Donna Adelson. Element three, there was an unlawful killing of Daniel Markel by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
As to the definitions, I believe act is repeated. Is there any objection to this stating, an act has been previously defined above?
MR. ZELMAN: I don't have a legal objection to that, Your Honor.
JUDGE EVERETT: Mr. Evans?
MR. EVANS: No objection.
JUDGE EVERETT: The second definition, an act is imminently dangerous to another and demonstrating a depraved mind, that must be given.
In order to convict of second-degree murder, it's not necessary for the State to prove the Defendant had an intent to cause death. That will be given.
Give only if there is evidence the Defendant acted in heat of passion on legally adequate provocation, that will be removed.
The next lesser, 7.7, manslaughter. To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt. Element one, Daniel Markel is dead. As to element two, which theory is the State proceeding on?
MR. EVANS: A and B, Your Honor.
JUDGE EVERETT: Very well. A and B will be split by an or. Donna Adelson intentionally committed an act or acts that caused the death of Daniel Markel, or, Donna Adelson intentionally procured an act that caused the death of Daniel Markel.
All right. Concerning the State v. Spencer italic, that will be removed.
MR. EVANS: And my understanding, Your Honor, is given the fact that the Defense has not requested that instruction, has agreed there is no legal basis to give the instruction, there is a concession that the homicide of Daniel Markel was not excusable or justified.
JUDGE EVERETT: Mr. Zelman, do you need to be heard concerning the concession, that it's not excusable or justified?
MR. ZELMAN: Not on the facts of this case, Your Honor.
MR. EVANS: And the Defendant agreed with that concession.
JUDGE EVERETT: Very well. Mrs. Adelson, do you understand what is being omitted from the jury instructions?
MS. FULFORD: Just one second, Judge.
JUDGE EVERETT: Go ahead.
(Pause. )
MS. FULFORD: Okay, Judge.
JUDGE EVERETT: Mrs. Adelson, do you understand what is being omitted concerning whether this homicide was justifiable or excusable?
DONNA ADELSON: I do.
JUDGE EVERETT: As to that concession, do you need anything else that you need to discuss with your attorneys?
DONNA ADELSON: Yes.
MS. FULFORD: She said, yes.
JUDGE EVERETT: Please discuss it with them now.
MS. FULFORD: Thank you.
(Pause. )
MS. FULFORD: Okay, Judge.
JUDGE EVERETT: Mrs. Adelson, you understand the concession that is being made as to justifiable and excusable homicide?
DONNA ADELSON: I understand, Judge.
JUDGE EVERETT: You are giving your consent to this?
DONNA ADELSON: Iam.
JUDGE EVERETT: Let's move on at this point.
The paragraph that states, every person has a duty to act reasonably toward others. If there is a violation of that duty without any conscience intention to harm, that violation is negligence. The Defendant cannot be guilty of manslaughter by committing a merely negligent act. I believe the period needs to go there because there will not be any discussion of justifiable or excusable homicide. Does either party wish to be heard?
MR. ZELMAN: We concur, Your Honor.
JUDGE EVERETT: In order to convict of manslaughter by act, that paragraph will be given.
The last portion, in order to convict of manslaughter by act, it is not necessary for the State to prove that the Defendant had an intent to cause death. Only an intent to commit an act that was not merely negligent and which caused death. The justifiable and excusable portion of the sentence would be removed.
Does either party wish to be heard?
MR. EVANS: No, sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: The definition of procure will be given, and all other references to culpable negligence will be removed.
Moving on to 3.5(€a), principals. The two elements are static. As to the portion below that is italicized, are any of the italicized portions being requested? I believe as to the first paragraph, where it says, attempted homicide cases.
MR. EVANS: We're not requesting that, Your Honor. Just for the completed offense, which is the next --
JUDGE EVERETT: Say that one more time, Mr. Evans.
MR. EVANS: We're not asking for the attempts. we're just asking for the --
JUDGE EVERETT: Correct.
MR. EVANS: -- completed offenses.
JUDGE EVERETT: I believe that instruction must be given for first-degree premeditated murder, and all references to attempts of any other sort will be removed. The State must prove the Defendant intended that the killing of Daniel Markel occur.
As to the paragraph that concerns second-degree murder, felony murder, or other attempts, I believe this paragraph needs to be given as it relates to the lesser as well.
For second-degree murder, it is not necessary for the State to prove the Defendant intended the death of Daniel Markel.
MR. EVANS: Your Honor, I think under that, the manslaughter instruction, or manslaughter needs to be included.
JUDGE EVERETT: Concerning whether an intent was necessary for manslaughter as well, Mr. Evans?
MR. EVANS: You have to intend the act, but you don't have to intend the killing.
JUDGE EVERETT: As to that inclusion within the principal instruction, does the Defense wish to be heard?
MR. ZELMAN: Just a moment, Your Honor.
I'm not sure that manslaughter is included in that, Your Honor.
JUDGE EVERETT: It's not included in the standard instruction, no.
MR. ZELMAN: Can I have some time to research that to make sure that I'm not inviting error?
JUDGE EVERETT: That's fine.
MR. EVANS: And Mr. Zelman can get in contact with me on that, Judge, and we will let you know hopefully later this evening.
JUDGE EVERETT: All right. If given to the jury as requested by the State, it would essentially mirror what it states as a second-degree murder. For manslaughter, it is not necessary for the State to prove the Defendant intended the death of Daniel Markel.
No weapon enhancement is being sought by the State. I believe that paragraph needs to be removed entirely. Does either party wish to be heard concerning this?
MR. EVANS: Are you ask --
JUDGE EVERETT: For cases where the criminal statute includes a higher degree because of a firearm.
MR. EVANS: Oh, yes, sir. Excuse me, I had moved down to principals already. The next italicized, yes, sir, no -- there's no evidence that the Defendant in this case actually possessed a firearm. So, no, we are not requesting it.
JUDGE EVERETT: It will be removed.
3.5Cb), principals. When active participant hired by Defendant. If the Defendant paid or promised to pay another person or persons to commit a crime, the Defendant is a principal and must be treated as if she had done all things the person who was promised or received the money did if the State proved beyond a reasonable doubt. And then elements one, two, and three are to be given.
As to the bracketed portion of element three, the offense that the State is asking for to read in element three, would this be first-degree murder?
MR. ZELMAN: I'm sorry, Your Honor. Can you say that again?
JUDGE EVERETT: Element three, the bracketed portion that says, crime or attempt. The crime that the State is requesting, is that first-degree murder?
MR. EVANS: Yes, sir. But I don't believe that -- I don't think you insert crime. I think you just leave the crime was committed by another person.
JUDGE EVERETT: So not a specific crime, just crime?
MR. EVANS: Yes. And I think that's why they have attempt.
JUDGE EVERETT: Unless you want the offense to be named, I will leave it at crime.
MR. EVANS: I don't believe -- I think crime is the appropriate one given the standard instruction.
MR. ZELMAN: I'm going to look at the standard briefly, Your Honor.
JUDGE EVERETT: The other person that is referred to in the bracketed portion, were any specific names being sought, or just the other person?
MR. EVANS: Just the other person, Your Honor.
MR. ZELMAN: I would ask that the individuals Sigfredo Garcia and Luis Rivera be named.
JUDGE EVERETT: I believe within the indictment, the named co-conspirators are Charles Adelson, Katherine Magbanua, and/or other persons.
MR. ZELMAN: For Count 1, Your Honor, there's no one identified.
JUDGE EVERETT: Mr. Evans?
MR. EVANS: For principal instruction, you --
JUDGE EVERETT: 3.5(b), element three.
MR. EVANS: Yes, sir. But what I'm saying for principal instruction, you do not have to allege it in the indictment in order to be entitled to the principal instruction.
JUDGE EVERETT: Very well. It will read, the crime was not committed by the other person. As to the persons who committed the crime, I believe the evidence and the record is clear. It can only be argued that Luis Rivera and Sigfredo Garcia were the actual trigger men; although, who may have put them up to the act as a conspiracy, that is for the jury to determine.
Any other matters that need to be addressed with 3.5(b)?
MR. EVANS: Just doing aware with the firearm part of it.
JUDGE EVERETT: That will be omitted.
MR. ZELMAN: And, Your Honor, something I want to address briefly on 3.5(a).
JUDGE EVERETT: Go ahead.
MR. ZELMAN: On my reading, this is the new instruction?
JUDGE EVERETT: This is the straight from the Florida Supreme Court on the Florida Bar website instruction.
MR. ZELMAN: Well, we are making the affirmative election to use the current instruction rather than the instruction that existed in 2014, which my client would be entitled to request.
JUDGE EVERETT: This is the current instruction.
MR. ZELMAN: I'm sorry?
JUDGE EVERETT: This is the --
MR. ZELMAN: Yes.
JUDGE EVERETT: -- Current instruction.
MR. ZELMAN: Yes. We are making the affirmative request for this, rather than the old instruction. I want to make that clear for the record.
JUDGE EVERETT: Moving on to Count 2, conspiracy to commit murder. To prove the crime of criminal conspiracy, the State must prove the following two elements beyond a reasonable doubt. Element one, the intent of Donna Adelson was that the offense of first-degree murder would be committed. Element two, as to agreed, conspired, combined, or confederated, which are being requested by the State?
MR. EVANS: All four.
JUDGE EVERETT: In order to carry out the intent, Donna Adelson agreed, conspired, combined, or confederated with Charles Adelson, Katherine Magbanua, and/or other persons to cause the first-degree murder to be committed either by them or one of them or by some other person.
MR. EVANS: Your Honor, on that, I know -- I understand the way it is written, but in order to avoid confusion because and/or would apply between, it would be Charles Adelson and/or Katherine Magbanua and/or other persons. So I think it could be --
JUDGE EVERETT: You're just requesting an and/or between the names?
MR. EVANS: Yes, sir.
JUDGE EVERETT: Defense wish to be heard?
MR. ZELMAN: Your Honor, I always have heartburn when I see and/or in a jury instruction.
JUDGE EVERETT: Going back to the indictment, these are the individuals that are within the charging document.
MR. ZELMAN: I understand that it's in the indictment. I think it leads to potential confusion with the jury. we would ask that and/or not be included.
MR. EVANS: And if that's the case, then you could put simply or. Because and/or, my understanding -- my understanding of and/or are it can include -- basically if you put something or, it means this one or this one or this one or this one.
And so in this case, if it's Charles Adelson or Katherine Magbanua or other persons, that would be acceptable to the State.
MR. ZELMAN: I don't have a legal objection.
JUDGE EVERETT: Conjunction junction --
MR. EVANS: Yes, sir.
JUDGE EVERETT: -- what's your function?
MR. EVANS: It's been a while. Yes.
JUDGE EVERETT: Very well. Charles Adelson or Katherine Magbanua or other persons.
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.
And then lastly, it is not necessary that the Defendant do any act in furtherance of the offense conspired.
As to the affirmative defense, I am not aware of any evidence in the record that would require this to be given. Does the Defense have any argument?
MR. ZELMAN: Legally, your Honor, there's no evidence of it.
JUDGE EVERETT: It will be omitted.
Count 3, solicitation to commit murder. To prove the crime of criminal solicitation, the State must prove the following two elements beyond a reasonable doubt. Element one, Donna Adelson solicited Charles Adelson, Katherine Magbanua, and/or other persons to commit first-degree murder. As to this, are the parties asking this to read with the same or that it does for conspiracy to commit?
MR. EVANS: Yes, sir.
MR. ZELMAN: Yes, Your Honor.
JUDGE EVERETT: Very well. Element one. Donna Adelson solicited Charles Adelson or Katherine Magbanua or other persons to commit first-degree murder. During the solicitation, and which are being requested by the State?
MR. EVANS: All four, Your Honor.
JUDGE EVERETT: During the solicitation, Donna Adelson commanded, encouraged, hired, or requested Charles Adelson or Katherine Magbanua or other persons to engage in specific conduct which would constitute the commission of first-degree murder. 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. The definition of solicit must be given as well. The affirmative defense will be omitted based on lack of evidence.
MR. EVANS: Your Honor, I believe we're also entitled to a principal instruction on solicitation. I think the only area of principal that doesn't apply is for conspiracy.
JUDGE EVERETT: Do you wish for me to move, then, the two principal instructions to the very end and then they can be argued as to Counts 1 and 3 as necessary?
MR. EVANS: We could put it there, or you could simply state, the principal instruction applies to solicitation to commit murder, as they have previously been defined. Or do we need to --
JUDGE EVERETT: Defense?
MR. ZELMAN: We would object, Your Honor. How can one be a principal to solicitation? I'm not sure that that's correct. And as with the previous issue, I want an opportunity to look at that. That's not what was requested in the previous co-defendants’ trials, or at least it hasn't been given.
JUDGE EVERETT: I think the easiest way to settle this would be to move the two instructions to the end of the counts, and then that way they can be argued as necessary for which counts they apply to.
MR. ZELMAN: The concern that the Defense has, Your Honor, is whether or not it's legally appropriate. That's what I would like the opportunity to address.
JUDGE EVERETT: As far as that, you can research the matter, whether it can be argued that someone is a principal in soliciting.
MR. ZELMAN: Thank you.
JUDGE EVERETT: For now, I will just move the two instructions to the end of the counts.
MR. EVANS: And if they're at the end of the counts, it just needs to be clearly stated that conspiracy -- it does not apply to the conspiracy count. That, I think we're all in agreement on.
JUDGE EVERETT: I can add it, but ultimately no instruction can be argued as to a defense that it does not apply to. Does the Defense wish for me to add at the end of the principal instructions that this does not apply to conspiracy?
MR. ZELMAN: Yes, Your Honor. And that might be a moot point depending on the research that I do later.
JUDGE EVERETT: And I will just add at the bottom the principal theory. Or, actually, this instruction does not apply to Count 2. And I will do that for both principal instructions.
Moving on to intent as a standalone instruction. This is not a standard instruction but comes from standard jury instruction 13.1, burglary, which gives a definition of intent. This was given in the prior trial for Charles Adelson, and I have given it previously in murder cases. Is either party requesting it or do you wish for it to be removed?
MR. EVANS: We're requesting it, Your Honor.
JUDGE EVERETT: The intent instruction, that will remain.
MR. ZELMAN: We would object, Your Honor.
JUDGE EVERETT: what is the basis?
MR. ZELMAN: The basis is it's not a standard instruction.
JUDGE EVERETT: One hundred percent speaks to the facts and evidence in this case as to how the jury must determine whether your client had intent. Over objection, it will be given.
3.7, plea of not guilty, reasonable doubt, burden of proof. All standard language from the current instruction. Does either party wish to be heard?
MR. EVANS: NO, sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: 3.9, weighing the evidence. The opening paragraph will be given. As to the witness testimony, one through five will be given. As to the give as applicables, which are being requested?
MR. EVANS: I think probably number ten is the only one we're not requesting. So six, seven, eight, and nine.
JUDGE EVERETT: Does the Defense have any argument for the giving of number ten?
MR. ZELMAN: No, Your Honor. We agree.
JUDGE EVERETT: Number six, has the witness been offered or received any money, preferential treatment, or other benefit in order to get the witness to testify?
Number seven, had any pressure or threat been used against the witness that affected the truth of the witness's testimony?
Number eight, did the witness at some other time give a statement that is inconsistent with the testimony he or she gave in court?
Number nine, has the witness been convicted of a felony or misdemeanor involving dishonesty?
whether the State has met its burden of proof, that will remain.
To the next set of give as applicables, law enforcement witness. Is this requested?
MR. ZELMAN: Yes, Your Honor.
MR. EVANS: No objection.
JUDGE EVERETT: The fact that a witness is employed in law enforcement does not mean that his or her testimony deserves more or less consideration.
Expert witnesses. Experts are like other witnesses with one exception; the law permits an expert witness to give his or her opinion. However, an expert's opinion is reliable only when given on a subject about which you believe him or her to be an expert. Like other witnesses, you may believe or disbelieve all or any part of an expert's testimony.
As to the issue that came up earlier with the testimony of Linda Bailey, is the State requesting any instruction to be given to the jury concerning that testimony?
MS. CAPPLEMAN: Yes, Your Honor.
JUDGE EVERETT: What is the requested instruction?
MS. CAPPLEMAN: I have it typed out for you. would you like to --
JUDGE EVERETT: Yes.
MS. CAPPLEMAN: And I provided a copy to the Defense. Sorry about the typo in the title. And the certificate of service. It's all on Mr. Evans.
JUDGE EVERETT: AS to the requested instruction, was the witness present in the courtroom during the testimony of another witness or other witnesses? Did the witness violate the Court's orders not to be present in the courtroom during the testimony of another witness or witnesses? what is the Defense's position?
MR. ZELMAN: Just one moment.
Your Honor, we don't have an objection to the first one. The second one, we do.
JUDGE EVERETT: What is the objection as to the second?
MR. ZELMAN: Your Honor, it's based -- the witness's presence in the courtroom was based on our apparent misunderstanding of the discussion that we had at sidebar last week. As a result, we think that the first one is an accurate statement of the law, but under the facts, the second one would be inappropriate.
JUDGE EVERETT: Ms. Cappleman, what is your argument for the giving of the second?
MS. CAPPLEMAN: I'm fine with just the first one, Judge.
JUDGE EVERETT: Very well. After the expert witness instruction, the next instruction would be, was the witness present in the courtroom during the testimony of another witness or witnesses?
Accomplices and informants. You must consider the testimony of some witnesses with more caution than others. For example, a witness who claims to have helped the Defendant commit a crime has been promised immunity from prosecution hopes to gain more favorable treatment in his or her own case. TI believe we have number three of the bracketed portions. Are any others being sought?
MR. EVANS: Your Honor, I -- it has just dawned on me where you are sticking the previous requested instruction by, the witness was present in the courtroom during the testimony of another.
JUDGE EVERETT: Yes.
MR. EVANS: That's probably better under weighing the evidence, as opposed to -- because --
JUDGE EVERETT: You're asking for this, then, to be inserted into the ten -- or what would be the nine questions and make it ten?
MR. EVANS: Yes. Because I don't know how much sense it would make if we read, like other witnesses, you may believe or disbelieve all or any expert testimony, and then, was the witness present in the courtroom during the testimony of another witness or witnesses? That just sort of leaves it hanging out there as to, what does that mean?
JUDGE EVERETT: I understand what you're getting at. Does the Defense wish to be heard as to the positioning?
MR. ZELMAN: we don't have a legal objection, Your Honor.
JUDGE EVERETT: Then it will be question ten. Let me move that now.
Going back to accomplices or informants. For example, a witness who hopes to gain more favorable treatment in his or her own case. Are there any arguments for claims to have helped the Defendant, has been promised immunity?
MR. ZELMAN: Not from the Defense, Your Honor.
JUDGE EVERETT: Those will be omitted. You must consider the testimony of some witnesses with more caution than others. For example, a witness who hopes to gain more favorable treatment in his or her own case may have a reason to make a false statement in order to strike a good bargain with the State. This is particularly true when there is no other evidence tending to agree with what the witness says about the Defendant. So while a witness of that kind may be entirely truthful when testifying, you should consider -- and I believe this would just be her testimony?
MR. EVANS: Yes, Sir.
MR. ZELMAN: Your Honor, can we go back to the first bracketed language, please?
JUDGE EVERETT: which is being requested?
MR. ZELMAN: Claims to have helped the Defendant commit a crime. I think that would apply to Ms. Magbanua and to Mr. Rivera.
JUDGE EVERETT: State?
MR. EVANS: That's fine, Your Honor. So we're -- for the record, as I understand it, other bracketed languages under accomplices and informants --
JUDGE EVERETT: Who claims to have helped the Defendant commit a crime or hopes to gain more favorable treatment.
MR. EVANS: All right. Yes, sir.
JUDGE EVERETT: So while a witness of that kind may be entirely truthful when testifying, you should consider her testimony with more caution than testimony of other witnesses. However, if the testimony of such a witness convinces you beyond a reasonable doubt of the Defendant's guilt or the other evidence in the case does so, then you should find the Defendant guilty.
There have been no children witnesses.
The Defendant has not testified.
witness talked to lawyer. Is either party requesting this?
MR. ZELMAN: Yes, Your Honor.
MR. EVANS: Yes, sir.
JUDGE EVERETT: That will be given. And the give in all cases. You may rely upon your own conclusion about the credibility of any witness. That will be given.
Defendant not testifying, this will be given in full. I will just change the pronouns to all feminine.
The constitution requires the State to prove its accusations against the Defendant. It is not necessary for the Defendant to disprove anything, nor is the Defendant required to prove her innocence. It is up to the State to prove the Defendant's guilt by evidence.
The Defendant exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by her decision. No juror should ever be concerned that the Defendant did or did not take the witness stand to give testimony in the case.
As to Defendant's statements, I do not believe there was ever a statement given by the Defendant to law enforcement. This specifically goes to whether the statement was freely and voluntarily made. As to that, as there is no law enforcement statement, this will be removed. Does any party wish to be heard concerning this?
MR. EVANS: NO, Sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: Rules for deliberation, standard instruction, this will be given. Does either party wish to be heard?
MR. EVANS: No, sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: Cautionary instruction. Does either party wish to be heard?
MR. EVANS: No, sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: Single defendant, multiple counts. Does either party wish to be heard?
MR. EVANS: NO, Sir.
MR. ZELMAN: No objection.
JUDGE EVERETT: 3.12, verdict. Any objection or request?
MR. EVANS: NO, sir.
JUDGE EVERETT: Moving on to the verdict form.
Count 1. we, the jury, find as follows as to Count 1 of the indictment, first-degree murder. Check only one letter choice as to this count. Option A, Defendant is guilty of first-degree murder. Option B, the Defendant is guilty of the lesser included offense of second-degree murder. Option C, the Defendant is guilty of the lesser included offense of manslaughter. Option D, the Defendant is not guilty as to Count 1. Any objection or request?
MR. EVANS: NO, sir.
MR. ZELMAN: I'll make the same request that I make in all cases. We would request that not guilty be the first option, since she has the presumption of innocence. we would also request that the words guilty and not guilty not be in all caps and bold.
JUDGE EVERETT: AS to replacing the order, I believe the standard instruction not only identifies guilty/not guilty, but the State is the Plaintiff in this matter and has brought the action. They are entitled to the first option. That is overruled.
As to the options being in bold or not, does the State have a position it wishes to raise?
MR. EVANS: The only thing I would suggest is we leave them in bold. It makes it clearer for the jury to differentiate between each of the counts. But I don't have any real strong feelings, but I see why they would be in bold.
JUDGE EVERETT: So you are requesting for it to remain the same or to not be bold?
MR. EVANS: I am requesting they remain the same, simply because I think it makes it much clearer to the jury to identify what is what. It's not suggesting anything. It's just making sure they recognize which box they're checking.
JUDGE EVERETT: Very well. It will remain in bold. This is for the purpose of clarity. No other purpose is involved.
As to Count 2, we, the jury, find as follows as to Count 2 of the indictment, conspiracy to commit murder. Check only one letter choice as to this count.
MR. ZELMAN: Your Honor, what about all caps for the guilty, not guilty words in Count 1?
JUDGE EVERETT: This is stylistic. Because, ultimately, this has no bearing on how they're evaluating the evidence, correct?
MR. ZELMAN: The same reason why I'm asking for the names of the charges to be in regular caps, not all caps throughout the instructions, it's the same principle.
JUDGE EVERETT: State, do you have a position?
MR. EVANS: Your Honor, I think it's -- to me, when it comes time to signing the verdict, we want it real clear which boxes they are checking. I think this makes it most clear. That's the reason I think the all caps and the bold are appropriate. The only stylistic change I would suggest, you know, like Count 1, probably need to move the degree murder that's up under it over to fully under subsection B, and manslaughter fully under subsection C so it's not up under the checkbox.
But other than that, I think throughout the verdict form we're going to be asking the same thing; leave it as is because I think it makes it much clearer to the jury when they're looking at it, you know what you're checking.
JUDGE EVERETT: As to the body of the instructions, I will grant the Defense's request. For the verdict form itself, again, the object specifically is to have clarity as to what verdict the jury is reaching and why. The form will remain as it's currently presented.
Two options, guilty and not guilty, for Count 2. Same two options for Count 3, guilty and not guilty.
MR. EVANS: I would suggest, Your Honor, for Count 3, that you move it off page 16 and put it at the top of page 17.
JUDGE EVERETT: I have been making several edits so my pages aren't the same, but it will flow to where it's not being broken up between pages.
MR. EVANS: Thank you, sir.
JUDGE EVERETT: All right. Closing argument, 2.7, any objection or request?
MR. EVANS: No, sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: How much time is each party anticipating for their closing argument?
MS. CAPPLEMAN: Two hours, Your Honor.
JUDGE EVERETT: Defense?
MR. ZELMAN: We would say the same, Your Honor.
JUDGE EVERETT: Very well. Both parties will have two hour to present their arguments. Ms. Cappleman, yours will be broken up based on what the law permits between your initial closing and any rebuttal that you wish to give to the Defense. You will need to be mindful of the time. I will help you in that regard as well. Two hours.
MS. CAPPLEMAN: Don't help me too much.
JUDGE EVERETT: Submitting the case to jury -- just with the time, nothing else -- any objection or request?
MR. EVANS: NO, Sir.
JUDGE EVERETT: The items that are going to be sent into the jury room, I believe we have photos, discs, jump drives, written reports. Is there anything that the parties are not asking to go back into the jury room.
MS. CAPPLEMAN: Just the demonstratives, Judge. All the exhibits, I think, can go.
JUDGE EVERETT: A demonstrative is not admitted, so, yes, I would agree, it does not to go back into the jury room.
MR. ZELMAN: Ms. Dugan and I spoke earlier during the trial about going through especially 73 and 73A to make sure it complies with the Court's ruling, so we'll do that before they're sent back.
JUDGE EVERETT: Then I will just leave it, then, the photographic, discs, jump drives, reports, and document exhibits will be sent to the jury room with you when you begin to deliberate. If you wish to see any other exhibits, please request that in writing.
And the final instruction when we reach the end of the case, the instruction on discharge of the jury, standard language once again. Any objection or request?
MR. EVANS: NO, Sir.
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: I believe the remaining edits that I need to make within the body of the instructions concern the capitalization and the names.
I believe the State has requested within 3.5(a) for manslaughter, it is not necessary for the State to prove the Defendant intended the death of Daniel Markel. I believe the Defense is reserving any objection as to that instruction. That will remain for now.
Also added to both principals, this instruction does not apply to Count 2. The Defense was asking for time to rereview that as well, or was it specifically as to Count 3?
MR. ZELMAN: It's specific -- principal applies to Count 1. There's -- not disputing that in any way, shape, or form. I wanted the opportunity to look at it as to Count 3.
JUDGE EVERETT: AS to the language, this instruction does not apply to Count 2 appearing in both principal instructions. Does the Defense wish to be heard?
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: Once I have made my edits, I will send through my assistant an updated copy of the instructions. I will also rule on the items that were submitted by the Defense prior to the end of its case, and then from there, we will roll into the instructions and the closings tomorrow morning. Please report by 8:30. we will await the jurors. Any issues that can be resolved concerning the exhibits, certainly confer and advise tomorrow. We're in recess.
(Court in recess.)
JUDGE EVERETT: All right. The stipulation concerning Ms. Byrd, this will be read to the jury before we get into instructions and closings as well.
MR. ZELMAN: Can I approach with the excerpt?
JUDGE EVERETT: You may.
MS. CAPPLEMAN: Judge, is the current --
JUDGE EVERETT: Is this any different from the one that has the sticker?
MR. ZELMAN: No, it's not. It's the exact same thing I was giving you. TI thought I had given it to the clerk.
JUDGE EVERETT: I'‘'11 just take these two with me.
MR. ZELMAN: Perfect.
JUDGE EVERETT: They will not disappear.
Yes, Ms. Cappleman?
MS. CAPPLEMAN: would you like me to leave the headphones for closing arguments out here and then send them back with the clerk and the evidence, or would you like me to have those transported to the back prior to closing statements?
JUDGE EVERETT: Are you going to use them in your closing in any way?
MS. CAPPLEMAN: I'm not, but I don't know what the Defense is planning.
JUDGE EVERETT: Is the Defense planning to use anything that will require the headphones in closing?
MR. ZELMAN: Most likely, yes, Your Honor.
JUDGE EVERETT: Headphones stay out here.
MS. CAPPLEMAN: Yes, Sir.
JUDGE EVERETT: After that, I believe we need the assistance of your tech person to move them?
MS. CAPPLEMAN: I think so, Judge, so we'll need some kind of accommodation for that to happen.
JUDGE EVERETT: well, they can always get started with any other piece of evidence that does not require the headphones. Ultimately, how long will this take for the tech person to remove the headphones?
MS. CAPPLEMAN: Ten, 15 minutes.
JUDGE EVERETT: Spoken like a true technophobe. I have no idea. I call someone. well, however long it takes, it takes. Just so we don't have any issues while the member of the State Attorney's Office or the audio-tech is moving items, I will instruct the jurors not to have any deliberations until they are in the room by themselves and the door is closed.
MS. CAPPLEMAN: Yes, sir.
JUDGE EVERETT: Have a good night, everyone.
(Court in recess.)