Charge Conference — Jury Instruction Settlement Before Closing Arguments
268 linesJUDGE EVERETT: Everyone can be seated.
JUDGE EVERETT: Please open your copies of the jury instructions. My custom in going through the jury instructions is to go through each one.
JUDGE EVERETT: Any requests or changes that are being asked for by either party, we will address as we go through each instruction.
JUDGE EVERETT: Let's start with 3.1, introduction to final instructions.
JUDGE EVERETT: Are there any requests or changes being sought?
MR. ZELMAN: No, sir.
JUDGE EVERETT: 3.2, statement of the charge. Any requests or changes?
MR. ZELMAN: None 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 do 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.
JUDGE EVERETT: Moving on to 7.1, introduction to homicide. This is a mandatory in all murder cases as to the first paragraph. Donna Adelson is accused of first-degree murder, and count one of the indictment, is there any request or change as to the next paragraph concerning lesser included? Is the defense asking for all category one lesser included?
JUDGE EVERETT: The 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.
JUDGE EVERETT: I believe the indictment refers to the victim as Daniel Markel.
JUDGE EVERETT: Does either party have a preference?
MR. ZELMAN: For the indictment, we would request a consent from the judge.
JUDGE EVERETT: If you find Daniel Markel was killed by Donna Adelson, you will then consider the circumstances surrounding the killing and deciding if the killing was first-degree murder, second-degree murder, or manslaughter.
JUDGE EVERETT: ...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? Not entirely certain we have any evidence in the record that would support giving them, but has any party requested? Is...
JUDGE EVERETT: Mr. Evans? Miss Cappleman?
JUDGE EVERETT: Just the definitions of justifiable and excusable homicide will be removed.
JUDGE EVERETT: 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.
JUDGE EVERETT: 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 one, 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.
JUDGE EVERETT: The elements of first-degree premeditated murder.
JUDGE EVERETT: Element one: Daniel Markel is dead.
JUDGE EVERETT: Element two: the death was caused by the criminal act of Donna Adelson.
JUDGE EVERETT: Element three: there was a premeditated killing of Daniel Markel. There is previously, well, instead of caps that will be in upper-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's evidence the defendant acted in the heat of passion on legally adequate provocation," that will be removed. Right.
JUDGE EVERETT: Instruction 3.4, this deals with the lessers. Is there any objection or request other than the stylistic issue previously raised? Yes, sir.
JUDGE EVERETT: 7.4, second-degree murder. Introduction to homicide will be given. This portion of the instruction, it 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 eminently 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"?
JUDGE EVERETT: The second definition: an act is eminently 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's 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?
JUDGE EVERETT: A and B will be split by an "or."
JUDGE EVERETT: 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.
JUDGE EVERETT: Concerning the "state versus Spencer" italic, that will be removed.
MR. EVANS: And my understanding, Your Honor, is given the fact that the defense has not requested for that instruction — to agree with no legal basis to give the instruction, there is a concession that the homicide and kill 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 in the facts of this case, Your Honor.
JUDGE EVERETT: And does defendant agree with that concession?
JUDGE EVERETT: Mrs. Adelson, do you understand what is being omitted from the juror instructions? Go ahead.
JUDGE EVERETT: This is a little — so do you understand what is being omitted concerning whether this homicide was justifiable or excusable? As to that concession, do you need anything else that you need to discuss with your attorneys?
JUDGE EVERETT: Please discuss it with them.
JUDGE EVERETT: Miss Adelson, do you understand the concession that is being made as to justifiable and excusable homicide?
DONNA ADELSON: I understand.
JUDGE EVERETT: You are giving your consent to this?
DONNA ADELSON: I have.
JUDGE EVERETT: Let's move on at this point.
JUDGE EVERETT: The paragraph that states: "Every person has a duty to act reasonably toward others. If there is a violation of that duty without any conscious intention to harm, that violation is negligence. The defendant cannot be guilty of manslaughter by committing a merely negligent act."
JUDGE EVERETT: I believe the period needs to go there, because there will not be any discussion of justifiable or excusable homicide.
JUDGE EVERETT: Does either party wish to be heard?
JUDGE EVERETT: In order to convict of manslaughter by act, that paragraph will be given.
JUDGE EVERETT: 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?
JUDGE EVERETT: The definition of "procure" will be given, and all other references to culpable negligence will be removed.
JUDGE EVERETT: Moving on to 3.5 sub A, principals. The two elements are static as to the portion below — that is italicized — or any of the italicized portions being requested.
JUDGE EVERETT: As to the first paragraph, where it says "attempted homicide cases" — Say that one more time, Ms. Cappleman?
MR. EVANS: We're not asking for the attempt — we're just asking for the -
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.
JUDGE EVERETT: The state must prove the defendant intended that the killing of Daniel Markel occurred.
JUDGE EVERETT: 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.
JUDGE EVERETT: For second-degree murder, it is not necessary for the state to prove the defendant intended the death of Daniel Markel.
JUDGE EVERETT: Concerning whether as to that inclusion within the principal instruction, does the defense wish to be heard?
MR. ZELMAN: Just a moment.
MR. ZELMAN: It's not included in the standard instruction, though.
MR. ZELMAN: Can I have some time to research that to make sure that I'm not inviting error?
JUDGE EVERETT: That's fine.
JUDGE EVERETT: Right. If given to the jury as requested by the state, it would essentially mirror what it states for second-degree murder: "For manslaughter, it is not necessary for the state to prove the defendant intended the death of Daniel Markel."
JUDGE EVERETT: No weapon enhancement is being sought by the state. I believe that paragraph needs to be removed entirely.
JUDGE EVERETT: Does either party wish to be heard concerning those?
JUDGE EVERETT: Are you asking for cases where the criminal statute includes a higher degree because of a firearm?
MR. EVANS: Yes, sir. I scrolled down and moved down. The principal's already connected to that.
MR. EVANS: So I ask you, yes or no — there's no evidence that the defendant in this case actually possessed a firearm, so no, you're not requesting it.
JUDGE EVERETT: It will be removed.
JUDGE EVERETT: 3.5 sub B — principals when active participant hired by defendant.
JUDGE EVERETT: 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 — 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 to remove. I'm sorry, I'm just going to say — the element three, the bracket 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 there's a certain crime. I think you just leave "the crime was committed by another person." So not a specific crime, just "crime."
JUDGE EVERETT: Yes — and I think that's why they have "attempt." Unless you want the offense to be named, I will leave it at "crime."
JUDGE EVERETT: The other person that is referred to in the bracketed portion — are any specific names being sought, or just "the other person"?
MR. EVANS: Just the other person.
MR. ZELMAN: I would ask the individuals Sigfredo Garcia and Luis Rivera be named.
JUDGE EVERETT: I believe within the indictment, the named co-conspirators are Charlie Adelson, Katherine Magbanua, and/or other persons.
MR. ZELMAN: Count one, Your Honor. There's no one identified.
JUDGE EVERETT: Mr. Evans.
MR. EVANS: For principal instruction.
JUDGE EVERETT: 3.5 sub B, element three.
MR. EVANS: Yes, sir.
MR. EVANS: But I'm saying — for principal instruction, you do not have to go back into the indictment in order to be entitled to principal instruction.
JUDGE EVERETT: Well, I'll read "the crime was committed by the other person."
JUDGE EVERETT: As to the persons who committed the crime, the evidence in the record is clear. It would be argued that Luis Rivera and Sigfredo Garcia were the actual killers, although who may have put them up to the act as a conspiracy — that is for the jury to determine.
JUDGE EVERETT: Any other matters that need to be addressed with 3.5 sub B?
MR. EVANS: Just the do away with the firearm part of it.
JUDGE EVERETT: That will be omitted.
MR. ZELMAN: Your Honor, there's something I wanted to address briefly on 3.5 A.
JUDGE EVERETT: Go ahead.
MR. ZELMAN: I'm just reading.
MR. ZELMAN: This is the new instruction.
MR. ZELMAN: This is straight from the Supreme Court — on the court's own 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?
MR. ZELMAN: Yes. This is the current instruction. Yes — we are making the affirmative request for this rather than the old instruction. I want to make that clear for you.
JUDGE EVERETT: Moving on to count two — conspiracy to commit murder. To prove the crime of criminal conspiracy, the state must prove the following two elements beyond a reasonable doubt.
JUDGE EVERETT: 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.
JUDGE EVERETT: In order to carry out the intent, Donna Adelson agreed, conspired, combined, or confederated with Charlie 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.
JUDGE EVERETT: I think.
JUDGE EVERETT: I understand the way it is written, but in order to avoid confusion, because the "and/or" would apply between the parties — Charles Adelson and/or Catherine Magbanua and/or other persons — I think it could be... you're just requesting an "and/or" between names?
MR. EVANS: Yes.
JUDGE EVERETT: Defense, wish to be heard?
MR. ZELMAN: Your Honor, I always have a heartburn when I see "and/or" in a jury instruction.
MR. ZELMAN: Going back to the indictment, these are the individuals that are in the charging documents.
MR. ZELMAN: I understand that in the indictment, I think it leads to potential confusion with the jury. We would ask that "and/or" not be included.
JUDGE EVERETT: And if that's the case, then you could put simply "or". So "and/or", my understanding — oh, my understanding of "and" and "or" are, it can include, basically, if you put something, something or — I mean, this one, this one, or this one, or this one, or this one. And so, in this case, if it's Charles Adelson or Catherine Magbanua or other persons, that would be acceptable to say.
MR. ZELMAN: I'll add a legal objection.
JUDGE EVERETT: Conjunction junction.
JUDGE EVERETT: Yes. What's your objection? Yes.
JUDGE EVERETT: Very well. Charles Adelson or Catherine Magbanua or other persons.
JUDGE EVERETT: It is not necessary that the agreement, conspiracy, combination, or confederation to commit first degree murder be expressed in any particular words or that words pass between the conspirators.
JUDGE EVERETT: And lastly, it is not necessary that the defendant do any act in furtherance of the offense conspired.
JUDGE EVERETT: 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: There is no evidence of it.
JUDGE EVERETT: It will be omitted.
JUDGE EVERETT: Count three, solicitation to commit murder.
JUDGE EVERETT: To prove the crime of criminal solicitation, the state must prove the following two elements beyond a reasonable doubt.
JUDGE EVERETT: Element one, Donna Adelson solicited Charles Adelson, Catherine Magbanua, and/or other persons to commit first degree murder. As to this, the parties are asking this to read with the same "or" that it does for conspiracy to commit?
MR. EVANS: Yes.
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, which are being requested by the state. 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.
JUDGE EVERETT: It is not necessary that the defendant do any act in furtherance of the offense solicited.
JUDGE EVERETT: The crime of first-degree murder has been previously defined in these instructions.
JUDGE EVERETT: The definition of solicit must be given as well.
JUDGE EVERETT: The affirmative defense will be omitted based on lack of evidence.
JUDGE EVERETT: Do you wish for me to move them — the two principal instructions — to the very end, and then they can be argued as to count one, two, or three, if necessary?
JUDGE EVERETT: You could put it there, or you could simply say "the principal instruction applies to solicitation as murder, as has previously been defined"?
MR. EVANS: Or do we need to —
MR. ZELMAN: We would object, Your Honor.
MR. ZELMAN: How can one be a principal to solicitation?
MR. ZELMAN: I'm not sure that that's correct.
MR. ZELMAN: As with the previous issue, I want an opportunity to look at that. That's not been requested in 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.
MR. ZELMAN: That's what I'd 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 to solicitation. Thank you.
JUDGE EVERETT: For now, we'll just move the two instructions to the end of the counts.
JUDGE EVERETT: If there are any counts that just need to be clearly stated that it does not apply to — the conspiracy count, I don't think we're all agreed on that.
JUDGE EVERETT: I can add it, but ultimately no instruction can be argued as to the defense that it does not apply to. Does the defense wish for me to add in 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: At the bottom, "the principal theory," or "actually this instruction does not apply to..." and I would do that for both principal instructions.
JUDGE EVERETT: Moving on to intent as a standalone instruction.
JUDGE EVERETT: This is not a standard instruction, but comes from standard jury instruction 13.1, burglary, which gives a definition of intent.
JUDGE EVERETT: This was given in the prior trial for Charles Adelson, and I have given it previously in murder cases.
JUDGE EVERETT: Is either party requesting it, or do you wish for it to be removed?
MR. EVANS: We request an instruction.
JUDGE EVERETT: Intent instruction — that will remain.
MR. ZELMAN: We would object, Your Honor.
JUDGE EVERETT: What is the basis?
MR. ZELMAN: A basis is, it's not a standard instruction. It speaks 100% to the facts and evidence in this case as to how the jury must determine whether the client had intent.
JUDGE EVERETT: Over objection, it will be given. 3.7, plea of not guilty, reasonable doubt, and burden of proof — all standard language from the current instruction. Does either party wish to be heard? 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 applicable," which are being requested.
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 applicable," which are being requested.
MR. EVANS: Probably number 10 is on the wrong box, but is it 6, 7, 8, and 9?
JUDGE EVERETT: Does the defense have any argument for the giving of number 10?
MR. ZELMAN: No, Your Honor, we read it.
JUDGE EVERETT: Number 6: has the witness been offered or received any money, preferential treatment, or other benefit in order to get the witness to testify?
JUDGE EVERETT: Number 7, had any pressure or threat been used against the witness that affected the truth of the witness's testimony?
JUDGE EVERETT: Number 8, did the witness at some other time give a statement that is inconsistent with the testimony he or she gave in court?
JUDGE EVERETT: Number 9, has the witness been convicted of a felony or misdemeanor involving dishonesty?
JUDGE EVERETT: Whether the state has met its burden of proof — that will remain.
JUDGE EVERETT: To the next set of given-as-applicables: law enforcement witness. Is this requested?
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.
JUDGE EVERETT: Expert witnesses.
JUDGE EVERETT: 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.
JUDGE EVERETT: As to the issue that came up earlier with the testimony of Linda Bailey, is the state requesting any instruction we'll get into the jury concerning that testimony?
JUDGE EVERETT: What is the requested instruction?
MS. CAPPLEMAN: I have it typed out for you, if you'd like.
JUDGE EVERETT: Yes.
JUDGE EVERETT: As to the requested instruction: was the witness present in the courtroom during the testimony of another witness or other witnesses?
JUDGE EVERETT: Did the witness violate the court's order not to be present in the courtroom during the testimony of another witness or witnesses?
JUDGE EVERETT: What is the defense's position?
JUDGE EVERETT: What is the objection to the second?
MR. ZELMAN: Your Honor, it's based on the witness's presence in the courtroom. It's based on our apparent misunderstanding of the discussion that we had at the sidebar last week.
MR. ZELMAN: 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: Miss Cappleman, what is your argument for the giving of the second?
MS. CAPPLEMAN: I'm fine with just the first one.
JUDGE EVERETT: Well, after the expert witness instruction, the next instruction will be: was the witness present in the courtroom during the testimony of another witness or witnesses?
JUDGE EVERETT: 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.
JUDGE EVERETT: We have number three of the bracketed portions. Are any others being sought?
MR. EVANS: Your Honor, it's just dawned on me where you're sticking the previous requested instruction that the witness was present in the courtroom during the testimony of another.
JUDGE EVERETT: Yes.
MR. EVANS: That's probably better underlaying the evidence as opposed to because of —
JUDGE EVERETT: You're asking for those things to be inserted into the tent board.
JUDGE EVERETT: 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 might believe, disbelieve, all or any other testimony," then "Was the witness present in the courtroom hearing the testimony of another witness or witnesses, hanging out with us?" What does that mean?
JUDGE EVERETT: I understand what you're getting at. Does the defense wish to be heard? That's the position.
MR. ZELMAN: We don't have a legal objection, right?
JUDGE EVERETT: Then it will be question 10. Move that. Now, going back to accomplices and 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"?
JUDGE EVERETT: Those will be admitted. 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: 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 will apply to Ms. Magbanua and to Mr. Rivera.
JUDGE EVERETT: State.
MR. EVANS: Second.
JUDGE EVERETT: It's not here. So we're — for the record, as I understand it, the directed languages under accomplices and informants are "who claims to have helped the defendant commit a crime" or "hopes to gain more favorable treatment."
JUDGE EVERETT: So while a witness of that kind may be entirely truthful in testifying, you should consider her testimony with more caution than the testimony of other witnesses.
JUDGE EVERETT: 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.
JUDGE EVERETT: There have been no children witnesses.
JUDGE EVERETT: The defendant has not testified.
JUDGE EVERETT: Witness talked to lawyer. Is either party requesting this?
MR. ZELMAN: Yes, Your Honor. That is the given.
JUDGE EVERETT: And the given: "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. We'll 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.
JUDGE EVERETT: No juror should ever be concerned that the defendant did or did not take the witness stand to give testimony in the case.
JUDGE EVERETT: As to defendant's statements: I do not believe there was ever a statement given by the defendant to law enforcement.
JUDGE EVERETT: This specifically goes to whether the statement was freely and voluntarily made. As there is no law enforcement statement, this will be removed. Does any party wish to be heard concerning this?
JUDGE EVERETT: Rules for deliberation — standard instruction. This will be given. Does either party wish to be heard?
JUDGE EVERETT: Cautionary instruction — does either party wish to be heard? Single defendant, multiple counts — does either party wish to be heard?
MR. ZELMAN: No objection.
JUDGE EVERETT: Objection. 3.12 verdict — any objection or request?
MR. EVANS: No.
JUDGE EVERETT: Moving on to the verdict form. Count one: "We the jury find as follows as to count one of the indictment, first-degree murder. Check only one letter choice as to this count. Option A: defendant is guilty of first-degree murder. Option B: 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 one." Any objection or request?
MR. EVANS: 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.
JUDGE EVERETT: That is overruled. As to the options being in bold or not, does the state have a position?
MR. EVANS: The only thing I would suggest, we leave them in bold and make it fair for the jury to differentiate between each of the counts, but I don't have a real strong opinion. I see why they would be in bold.
JUDGE EVERETT: So you are requesting for it to remain the same or to not be the same?
MR. EVANS: I request they remain the same, simply because I think it makes it much clearer for 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.
JUDGE EVERETT: This is for the purpose of clarity. No other purpose is involved.
JUDGE EVERETT: As to count two, the jury finds as follows as to count two 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 one?
JUDGE EVERETT: This is stylistic because ultimately this has no bearing on how they're evaluating the evidence, correct?
MR. ZELMAN: I think 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: You're on. I think it's — to me, when it comes time to sign the verdict, they want it real clear which boxes they are checking. I think this makes it the most clear; that's the reason I think the all caps in the bold are appropriate. The only stylistic change I would suggest on count one, we probably need to move the second-degree murder that's up under it over to fully under subsection B, and manslaughter under subsection C, so it's not up under the check box.
MR. EVANS: 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: Okay. As to the body of the instructions, I will grant the defense's request. For the verdict form itself, again, the objective specifically is to have clarity as to what verdict the jury is reaching and why.
JUDGE EVERETT: The form will remain as it's currently presented.
JUDGE EVERETT: Two options: guilty and not guilty for count two.
JUDGE EVERETT: Same two options for count three: guilty and not guilty.
JUDGE EVERETT: I've 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.
JUDGE EVERETT: Closing argument, 2.7 — any objection or request?
MR. EVANS: No, sir.
JUDGE EVERETT: How much time is each party anticipating for their closing argument?
JUDGE EVERETT: Very well. Both parties will have two hours 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'll need to be mindful of the time; I will help you in that regard as well. Two hours.
JUDGE EVERETT: Submitting the case to jury — just with the time.
JUDGE EVERETT: Nothing else.
JUDGE EVERETT: Any objection or request?
JUDGE EVERETT: The items that are going to be sent into the jury room, I believe we have photos, discs, jump drives, written reports.
JUDGE EVERETT: Is there anything that the parties are not asking to go back into the jury room?
MS. CAPPLEMAN: A demonstrative is not admitted, so yes, I would agree it does not go back to the jury.
MR. ZELMAN: Ms. Dugan and I spoke earlier during the trial about going through especially 73 and 73-A and making sure it complies with the court's rules, so we'll do that before the trial.
JUDGE EVERETT: Alright, we'll just leave it then.
JUDGE EVERETT: Photographic, discs, jump drives, reports, and document exhibits will be sent to the jury room with you when you begin to deliberate.
JUDGE EVERETT: If you wish to see any other exhibits, please request that in writing.
JUDGE EVERETT: The final instruction, when we reach the end of the case — instruction upon 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 3.5a for manslaughter: "It is not necessary for the state to prove the defendant intended the death of Daniel Markel."
JUDGE EVERETT: I believe the defense is reserving any objection as to that instruction. That will remain for now. Now, also added to both principals, this instruction does not apply to count two.
JUDGE EVERETT: The defense was asking for time to review that as well.
JUDGE EVERETT: Or was it specifically as to count three?
MR. ZELMAN: It's specific.
MR. ZELMAN: Principal applies to count one. I'm not disputing that in any way, shape, or form.
MR. ZELMAN: I wanted the opportunity to look at it as to count three.
JUDGE EVERETT: As to the language "this instruction does not apply to count two" appearing in both principal instructions — Does the defense wish to be heard?
MR. ZELMAN: No, Your Honor.
JUDGE EVERETT: Once I've made my edits, I will send through my assistant an updated copy of the instructions.
JUDGE EVERETT: I will also rule on the items that were submitted by the defense prior to the end of its case.
JUDGE EVERETT: 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.