Defense Rests
102 linesJUDGE EVERETT: As to your exhibit, do you wish to publish or just leave it in that order?
MR. ZELMAN: Not at this time, Your Honor. I do need to make the edits that were requested to the jury so that —
JUDGE EVERETT: Very well. Members of the jury we will have a brief break; the bailiff will take you to the jury room once again.
JUDGE EVERETT: Everyone can be seated.
JUDGE EVERETT: Please make all necessary redactions and changes at this time.
JUDGE EVERETT: If there are no other witnesses for the defense — it is time for the decision to be made.
MR. ZELMAN: I can tell the court that co-counsel and my client are deep in conversation.
MR. ZELMAN: I'm sorry -
JUDGE EVERETT: I am capable of seeing that, Mr. — no, no narration is needed.
JUDGE EVERETT: Miss Cappleman, once the defense rests, is the state intending to place or put on any rebuttal case?
MS. CAPPLEMAN: I think not, if they rest without calling any further witnesses. That could change if Mrs. Adelson decides to testify.
JUDGE EVERETT: Very well. At this point, I do need a decision. Mrs. Adelson, please rise.
JUDGE EVERETT: You've been placed on your oath earlier this afternoon.
JUDGE EVERETT: Mrs. Adelson, I will advise you concerning your rights. You understand that you have the right to remain silent and the jury will be instructed that your silence cannot be held against you in determining the merits of this case.
JUDGE EVERETT: Do you understand this?
DONNA ADELSON: I do understand.
JUDGE EVERETT: Do you also understand that you have the right to testify as a witness in your case in chief on your own behalf?
DONNA ADELSON: Yes.
JUDGE EVERETT: You have the right to take the stand.
JUDGE EVERETT: You understand if you do choose to take the witness stand you will be cross-examined by one of the prosecutors?
DONNA ADELSON: Yes, I do.
JUDGE EVERETT: Do you understand that your credibility will be placed before the jury like any other witness?
DONNA ADELSON: Yes, Your Honor, I understand.
JUDGE EVERETT: Have you been able to discuss with your attorneys the two rights that the court has placed before you?
DONNA ADELSON: Yes, we've discussed the rights.
JUDGE EVERETT: Concerning those rights as to whether you will remain silent or whether you will testify, have you made a decision concerning this matter?
DONNA ADELSON: I haven't. I'm not prepared to make that decision. This decision affects the rest of my life.
JUDGE EVERETT: Mrs. Adelson, you're in the same position as every other criminal defendant who faces trial. Ultimately you must decide whether you will testify or whether you will not. I cannot make you testify. Your attorneys cannot make you testify. But ultimately you must choose whether you will testify or not.
DONNA ADELSON: I know I had to choose. I was hoping that we would have some time to speak to my attorneys.
JUDGE EVERETT: This has already been discussed, ma'am. What is your choice?
MR. ZELMAN: Since I was handling prior witnesses while Ms. Fulford was speaking with Ms. Adelson, can I have a few minutes, please?
JUDGE EVERETT: What exactly are we going to accomplish that we have not been able to since the trial started, pre-trial, the long recess yesterday, or even the lunch break today?
MR. ZELMAN: That's what I'm trying to determine, Your Honor.
JUDGE EVERETT: I will give you exactly five additional minutes. From there, Mrs. Adelson has to make a decision whether she will testify or whether she will not.
MR. ZELMAN: Thank you, Your Honor.
JUDGE EVERETT: If anyone in the gallery needs to use the restroom or stretch your legs, this is your opportunity. At this point, you can be seated.
JUDGE EVERETT: Mr. Zelman, Ms. Fulford, and Mrs. Adelson, the extra time that you have been provided has come to a conclusion.
JUDGE EVERETT: We are not finished with the colloquy quite yet.
JUDGE EVERETT: I am not talking for the sake of talking. Before we have to move into any contempt, we do need to move on.
JUDGE EVERETT: Mrs. Adelson, the question remains as it relates to your right to remain silent and your right to testify.
JUDGE EVERETT: What is your decision concerning these two rights?
DONNA ADELSON: At this time, I don't want to testify.
JUDGE EVERETT: Very well. As I've previously stated, the jurors will be instructed that your silence cannot be held against you in any way.
JUDGE EVERETT: We will bring the jurors back out. The defense will rest its case on the record. Ms. Cappleman, you indicated the state will not have rebuttal?
MS. CAPPLEMAN: I did say that, Judge. May I have a moment to confer with co-counsel?
JUDGE EVERETT: Go ahead.
MS. CAPPLEMAN: We have prepared a written stipulation for Your Honor to read to the jurors. We can decide the language now if you find that more acceptable. It's a one-liner: the parties have stipulated or agreed that Patricia Byrd was never listed on the defense
JUDGE EVERETT: As to that, prepare the stipulation in writing. It needs to be signed by counsel for all parties and the defendant.
JUDGE EVERETT: From there, the stipulation will be read prior to the court going to further instructions.
JUDGE EVERETT: The preliminary copy of your instructions was sent to everyone this afternoon. Did everyone receive it?
MR. ZELMAN: We received it, Your Honor. We have not yet had a chance to look through it.
JUDGE EVERETT: We'll bring the jurors back into the room. The defense will rest. We will send them home for the evening and we'll give you a few minutes to look through the instructions. We'll go through the charge conference and then tomorrow we will move into instructions and closings.
MR. ZELMAN: Your Honor, can counsel and I have a moment to confer concerning whether or not we are going to rest at this point.
JUDGE EVERETT: Do you have another witness to call?
MR. ZELMAN: That's what we need to discuss.
JUDGE EVERETT: We've got a lot of conferring.
JUDGE EVERETT: Please quickly come to a decision as to whether there is another witness in fact for the defense.
JUDGE EVERETT: Is there another witness to be called?
MR. ZELMAN: Your Honor, we are going to be tendering two exhibits to the court to introduce. I believe that both qualify under hearsay exceptions.
MR. ZELMAN: The state's indicated that they're objecting. If I could just have a moment.
JUDGE EVERETT: Mr. Zelman, concerning the items, we do need to move on so a ruling can be made.
MR. ZELMAN: Yesterday, the state, or I'm sorry, not yesterday, but earlier in the case, the state introduced excerpts of the 2014 calendar that belonged to my client, as well as the 2023 calendar for my client. Under the rule of completeness, we are asking that the court admit the complete 2014 calendar as well as the 2023 calendar that is, I believe it's State's 51? No.
JUDGE EVERETT: Miss Cappleman, concerning these items what is the State's argument?
MS. CAPPLEMAN: The State's objection is hearsay, Your Honor. The portions that were admitted by the State we for very specific purposes.
MS. CAPPLEMAN: The rest of this item is not needed to add context to those individual entries. It's a day calendar. It's not a narrative.
MS. CAPPLEMAN: I don't think there's any argument for completeness. There's tons of self-serving hearsay in those documents. The state objects.
MR. ZELMAN: Yes, Your Honor. With respect to the 2023 calendar, the state introduced a few pages that listed my client identifying items that she was going to sell.
MR. ZELMAN: Based on the questions that were asked, the implication from that is that my client was selling these in anticipation of fleeing the country.
MR. ZELMAN: Contrary to that, there are a ton of pages going back to January 9th of 2023 where my client lists those very same items to get prices, to sell, to sell, to sell. So it is misleading to just put in those couple of pages that the state put in on the 2023 calendar for purposes.
JUDGE EVERETT: Who was the one to lay the foundation on some of the evidence that you wish to admit?
MR. ZELMAN: The foundation's already been laid by the state.
MR. ZELMAN: It was seized by the— I believe as did the inculpatory matters, yes, as to whether or not she was planning to sell something in January of 2023.
JUDGE EVERETT: What witness testified concerning that?
MR. ZELMAN: Judge, the implication from the state's admitting those pages is that my client was selling these in anticipation of fleeing. Under the rule of completeness, we should be entitled to introduce the additional entries from the calendar showing that it didn't just start around the time that she decided to travel to Vietnam, but it happened previously, not for the truth of the matter asserted, not that she was—
JUDGE EVERETT: Hold on. These are not recordings.
JUDGE EVERETT: A book with several entries is somewhat different from a recording. As it relates to recordings, the rule of completeness, I believe, serves a different purpose in the manner that you're describing. As to each page of this planner, all of the information is not inculpatory. So to that end, what witnesses laid a foundation for the pages that you seek to admit that are separate from the inculpatory information?
MR. ZELMAN: All we're seeking to admit are the pages for the 2023 calendar that list those additional items — list the items that the state has already put into evidence as my client intending to sell them prior to leaving the country. I've printed out the specific pages and I prepared a copy with highlights to be able to present to the jury during closing. But it's not the entire — we don't have the entire 2023 calendar; it's been marked for identification and it's in the clerk's possession. These are just the pages with those entries.
JUDGE EVERETT: As to that, I will reserve whether the rule of completeness will drag across the pages that you're seeking to admit. I'll do some additional research, but again, every item that appears in the calendars does not have a relevant or probative hook to this matter. If there is not a witness that will testify or lay a foundation concerning this, I will reserve for now. Depending on the court's ruling, you may argue in closing.
JUDGE EVERETT: Is the same argument as the 2014 calendar? Just a moment.
MR. ZELMAN: The argument for the 2014 calendar would be the same under the rule of completeness.
MR. ZELMAN: Obviously, there are things in here, and I said this to Ms. Cappleman earlier, that include personal information that would have to be redacted. Prior counsel provided a scanned copy of this to the state. If they could send that to me, I can identify the items that I think should be redacted. The specific purpose of offering the 2014 materials has to do with planning the 70th birthday party of our client's husband and the specific entries that she made identifying the tasks that she was going to carry out for that.
JUDGE EVERETT: Is there any witness who will testify to these matters or you're just offering them as rule of completeness?
MR. ZELMAN: Rule of completness, Your Honor.
JUDGE EVERETT: Miss Cappleman, any additional argument that you haven't already made?
MS. CAPPLEMAN: The only entry from the '14 planner that has been admitted so far in this trial is the page that shows the license plate number, sir, and so I don't see how birthday party planning adds to the completeness of possessing the license plate number. We object. In addition, I think this exhibit is in a little bit different posture because the 2014 planner in its entirety has not been identified at all — only that page was identified. The '23 planner was identified as a file by a witness as they were being seized from the residence.
JUDGE EVERETT: Was there a ruling as to the 2014 planner as well?
JUDGE EVERETT: Beyond that, if the court does permit these items to be admitted, the defense will be able to admit them prior to any instructions and closings, and you'll be able to argue them if they are admitted.
MR. ZELMAN: Yes, Your Honor. And for the record, what I've done is I've marked the 2023 excerpts, sorry, as Defense 51 and the 2014 as 76.
JUDGE EVERETT: Please leave them with the clerk.
MS. CAPPLEMAN: Judge, if Your Honor does rule that those items are admissible, the state would request complete redactions of all the items that are not related to the specific purposes that the defense articulated.
MR. ZELMAN: Certainly no objection to that, Your Honor.
JUDGE EVERETT: Please bring in the jurors.
MR. ZELMAN: And, Judge, the state has made the — let me, I want to check the redactions on this video.
JUDGE EVERETT: I believe this is just being admitted without being published, correct?
MR. ZELMAN: That's correct, Your Honor.
JUDGE EVERETT: The jurors are fine to come in.
JUDGE EVERETT: The judge can be seated. The defense may call its next witness.
MR. ZELMAN: Your honor, at this point in time, the defense rests.
JUDGE EVERETT: Members of the jury, with the defense having rested, is the state planning to recall or call any rebuttal witnesses?
MS. CAPPLEMAN: No, Your Honor.
JUDGE EVERETT: With both the state and defense having rested their cases at this time, we are going to go into recess for the evening. I have some matters that I need to discuss with the parties, and from there tomorrow you will receive your instruction on law and the closing arguments will take place. Once again, do not discuss this case with each other or any other person. Do not seek out any additional or outside information from what has been presented to you in this courtroom.
JUDGE EVERETT: Please report tomorrow at 8:45, and we will get started at 9 o'clock, or at least attempt to. Have a good evening.