6.Defense Rests
90 linesJUDGE EVERETT: As to your exhibit, do you wish to publish or just leave in evidence?
MR. ZELMAN: Not at this time, Your Honor. I do need to make the edits that were requested outside the presence of the jury so that we can remove the two references. That could just take a few minutes.
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.
(Jury exits courtroom.)
JUDGE EVERETT: Everyone can be seated.
Please make all necessary redactions and changes at this time.
MR. ZELMAN: Your Honor, Ms. Cappleman has offered for her team to assist because, as I indicated to the clerk, it's going to take me a few minutes to remember how to do this.
JUDGE EVERETT: How about that? collegiality? Reaching across the aisle? It's a beautiful thing. Hands across America.
This brings us back to where we were concerning whether the Defendant is going to testify in this matter. 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 concerning this.
JUDGE EVERETT: I am capable of seeing that, Mr. Zelman. No narration is needed.
Ms. 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. You have been placed under oath earlier this afternoon.
Mrs. Adelson, I will advise you concerning your rights. Do 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? Do you understand this?
DONNA ADELSON: I do understand that.
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, Your Honor, I understand that.
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.
JUDGE EVERETT: You understand that your credibility will be placed before the jury like any other witness?
DONNA ADELSON: Yes, Your Honor, I understand that.
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 have 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: TI haven't. I'm not prepared to make that decision. This decision affects the rest of my life.
JUDGE EVERETT: Mrs. Adelson, you are 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: No, I know I have to choose. I was hoping I would have some time to speak with my attorneys.
JUDGE EVERETT: This has already been discussed, ma'am. what is your choice?
MR. ZELMAN: Judge, since I was handling the prior witnesses while Ms. Fulford was speaking with Mrs. 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, pretrial, the long recess yesterday, or even the lunch break?
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.
(Court in recess.)
JUDGE EVERETT: Everyone can be seated.
Mr. Zelman, Ms. Fulford, Mrs. Adelson, the extra time that you have been provided, that has come to a conclusion. we are not finished with the colloquy quite yet.
(Pause. )
JUDGE EVERETT: JI am not talking for the sake of talking.
MR. ZELMAN: Sorry, Your Honor.
JUDGE EVERETT: Before we have to move into any contempt, we do need to move on.
Mrs. Adelson, the question remains, as it relates to your right to remain silent and your right to testify, 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 have previously stated, the jurors will be instructed that your silence cannot be held against you in any way. 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? I'm sorry, co-counsel. See? we really are collegiate.
(Pause. )
JUDGE EVERETT: Go ahead.
MS. CAPPLEMAN: There is one matter, Judge, that I thought we might be able to reach an agreement on and we have. I will need to prepare a written stipulation for Your Honor to read to the jurors, or 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 witness lists.
JUDGE EVERETT: AS to that, prepare the stipulation in writing. It needs to be signed by counsel for all parties and the Defendant. From there, the stipulation will be read prior to the Court going into further instructions.
The preliminary copy of the jury 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: All right. we'll bring the jurors back into the room. The Defense will rest. We will send them home for the evening. I will give you a few minutes to look through the instructions. we'll go through the charge conference. And then tomorrow we will move into the instructions and closings.
MR. ZELMAN: Your Honor, can we -- 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, Your Honor.
JUDGE EVERETT: we've done a lot of conferring. Please quickly come to a decision as to whether there is another witness, in fact, for the Defense.
(Pause. )
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 over hearsay exceptions. State's indicated that she's -- they're objecting. If I could just have a moment?
(Pause. )
JUDGE EVERETT: Mr. Zelman, concerning the items, we do need to move on so a ruling can be made.
MR. ZELMAN: Your Honor, yesterday the State -- or 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.
JUDGE EVERETT: Ms. Cappleman, concerning these items, what is the State's argument?
MS. CAPPLEMAN: State's objection is hearsay, Your Honor. The portions that were admitted by the State were for very specific purposes. 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. I don't think there's any argument for completeness. There's tons of self-serving hearsay in those documents. And the State objects.
MR. ZELMAN: 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. Based on the questions that were asked, the implication from that is that my client was selling these in anticipation of fleeing the country.
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 is going to lay the foundation concerning the items that you wish to admit?
MR. ZELMAN: The foundation has already been laid by the State, Your Honor. It was seized by --
JUDGE EVERETT: I believe as to the inculpatory matters, yes. As to whether or not she was planning to sell something in January of 2023, what witness testified concerning that?
MR. ZELMAN: Judge, the State's -- the implication from the State's admitting those pages is that my client was selling these in anticipating of fleeing. In 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. 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 than the manner that you're describing. As to each page of this planer, all the information is not inculpatory. So to that end, what witness has laid a foundation for the pages that you seek to admit from that are separate from the inculpatory information?
MR. ZELMAN: All we are seeking to admit are the pages from the 2023 calendar that lists those additional items, lists the items that the State has already put into evidence as my client intending to sell them prior to leaving the country.
I have printed out the specific pages, and I have 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 will 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 foundation concerning this, I will reserve for now. Depending on the Court's ruling, you may argue it in closing. Is it the same argument as to the 2014 calendar?
MR. ZELMAN: Just a moment.
Excuse me, Your Honor. The argument for the 2014 calendar would be the same under the rule of completeness. Obviously, there are some things in here -- and I said this to Ms. Cappleman earlier -- that would 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: Again, is there any witness who will testify to these matters, or you're just offering them as rule of completeness?
MR. ZELMAN: Rule of completeness, Your Honor.
JUDGE EVERETT: Ms. Cappleman, any additional argument that you have not already made?
MS. CAPPLEMAN: The only entry from the ‘14 planner that was admitted -- has been admitted so far in this trial is the page that shows --
JUDGE EVERETT: The license plate number?
MS. CAPPLEMAN: -- the license plate number. And so I don't see how birthday party planning adds to the completeness of possessing the license plate number, so I would 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 -- by a witness as it being seized from the residence.
JUDGE EVERETT: JI will reserve ruling as to the 2014 planner as well. 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 will be able to argue them if they are admitted.
MR. ZELMAN: Yes, Your Honor. And for the record, what I have done is I have marked the 2013 excerpts as Defense -- 2023 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 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 -- 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: Jurors are fine to come in.
(Jury in courtroom.)
JUDGE EVERETT: Everyone can be seated.
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 the 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.
Please report tomorrow at 8:45 and we will get started at 9:00, or at least attempt to. Have a good evening.
(Jury exits courtroom.)