Privilege and Sequestration Rulings; Thomas Balboni — Direct/Cross
216 linesDay 3 starts in progress.
MS. KAWASS: ...at that point, because they did indicate at some points during the deposition that they didn't have any independent recollection. So at the very least, if the court is going to allow them to testify, we would ask the court to entertain an order compelling them to answer the questions that we ask, so at least we're on notice of what it is that they're going to say.
JUDGE HANKINSON: But I thought you said they didn't answer any questions.
MS. KAWASS: It was very strange, Judge. When we were asking specifics about conversations they had with Mr. Rivera, they would assert privilege. But then we would ask what questions were asked of the State's attorney in that meeting, and they'd say, well, I don't have an independent recollection of those questions. So they were asserting privilege, but also saying that they didn't have independent recollection of certain specific details.
JUDGE HANKINSON: But they did answer questions about the process?
JUDGE HANKINSON: That's a question.
MS. KAWASS: I believe Mr. Collins did — Mr. Chuck Collins, Senior.
JUDGE HANKINSON: David Collins is the senior. So that kind of confused this thing. It's David Collins and Charles Collins.
JUDGE HANKINSON: So say that again, please.
MS. KAWASS: So it would be David Collins.
JUDGE HANKINSON: David what?
MS. KAWASS: He testified that he remembered that procedure, and he testified as to how that procedure translated.
MS. KAWASS: But he would not answer questions that he believed fell under attorney-client privilege as to any conversations he had directly with Mr. Rivera. When they were in that situation were they were alone.
JUDGE HANKINSON: I've done this a long time. Every day I have something new.
JUDGE HANKINSON: That's what makes it interesting. It wouldn't be unusual if Mr. Rivera was not waiving the privilege. The thing I'm puzzled about is him waiving the privilege and them still declining to answer the questions.
JUDGE HANKINSON: I guess I'm going to need to hear from them as to what their thinking is. I don't want to assume that they have no reason for what they're asserting. I guess I'd like to hear from them.
JUDGE HANKINSON: When do you think you're going to get to Rivera?
MS. CAPPLEMAN: Possibly this afternoon or tomorrow morning.
JUDGE HANKINSON: I'm going to ask the Collinses to be here tomorrow morning at 8:30, so I can hear from them what it is they're thinking.
JUDGE HANKINSON: So I'm going to reserve ruling on that at this point in time. We had one other issue. Officer Brannon was in the courtroom for a short period of time during Mr. Yao's testimony. Are you still planning to call Officer Brannon?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: And what does his testimony relate to?
MS. CAPPLEMAN: He was holding the crime scene at the time that Wendi Adelson approached the crime scene tape.
JUDGE HANKINSON: It's not going to relate to what Mr. Yao was testifying to?
MS. CAPPLEMAN: No, sir.
JUDGE HANKINSON: Defense, do you wish to be heard?
MR. ZANGENEH: Yes, Judge.
MR. ZANGENEH: While I understand his role as proffered by the government, which I take one hundred percent to be what his role was, there was a situation where I saw this officer approach the prosecutors while Investigator Yao — Mr. Yao — was testifying, and he provided them with what appeared to be a piece of paper. I assume in that piece of paper was direction that he saw based on his experience and knowledge, not just to have witnesses, not that a person with experience that understands the scene.
JUDGE HANKINSON: We all make assumptions. I assume he was asking her to sign off that he was present so he would get paid. So we all make different assumptions.
JUDGE HANKINSON: He did hand you some kind of piece of paper, Ms. Cappleman. What did that involve?
MS. CAPPLEMAN: It was a comment on Mr. Yao's testimony.
JUDGE HANKINSON: What was his comment?
MS. CAPPLEMAN: It was that the gangster style of shooting would be less accurate than traditional.
JUDGE HANKINSON: Wish to be heard further, Mr. Zangeneh?
MR. ZANGENEH: Yes, Judge. And candidly, the government did delve into that area at the conclusion of Investigator's Yao testimony. So, I don't know what the appropriate remedy would be for having a witness that shouldn't be in here providing additional information. Now I believe these two prosecutors are extremely competent but this is one of the reasons we have the rule of sequestration.
JUDGE HANKINSON: That's not the issue. The issue is whether his future testimony would be tainted by what he heard. That's what the rule of sequestration involves.
MR. ZANGENEH: Correct. I think it's more cerebral than that. But in this specific scenario, this witness in addition to seeing...
MR. ZANGENEH: Well, this is my position, Judge.
JUDGE HANKINSON: I'm sorry, the cerebral word didn't seem to fit.
JUDGE HANKINSON: But I'm sorry, I didn't mean to laugh. I'm sorry.
MR. ZANGENEH: He gave his testimony, provided the government with something that he could potentially buttress as well, where he gave them a question that these prosecutors could ask him. He's a crime scene analyst. They could ask him the same question that he proffered to the government to ask your investigator, Yao, and then they would have two consistent testimonies.
JUDGE HANKINSON: I'm not going to let him do that. I'm not going to let him testify on anything that relates to what Yao was testifying to. But the question is whether his testimony about what he was going to testify to — seeing Ms. Adelson at the crime scene — whether that's tainted by the fact he was in the area during Mr. Yao's testimony.
JUDGE HANKINSON: Anything further? On behalf of Ms. Magbanua?
MR. DECOSTE: Good morning, Your Honor.
JUDGE HANKINSON: Mr. DeCoste.
MR. DECOSTE: With respect to Officer Brannon and the testimony that I expect, we have no problem with that. I do, for the record, given the fact that Investigator Yao was asked the very question that Brannon tipped the prosecution off about, I believe that he helped the prosecution. I would move to strike that portion of Investigator Yao's testimony with a curative instruction for the jury.
JUDGE HANKINSON: I deny that request.
JUDGE HANKINSON: Further, Ms. Cappleman?
MS. CAPPLEMAN: No, sir.
JUDGE HANKINSON: We're not going to get into anything relating to Mr. Yao's testimony.
JUDGE HANKINSON: To the extent I take the defense request as a motion to exclude Officer Brannon — Is that what your motion is, Mr. Zangeneh? Okay, thank you. I deny that request. I don't see that — although there was a violation of the rule of sequestration, given the testimony that I'm going to allow, I don't see that his testimony has been tainted. Whether he helped the prosecution or not during his brief time in here really has nothing to do with the rule of sequestration. That's not the purpose of the rule of sequestration. The purpose of the rule is to prevent a witness from shaping his testimony to match what's said in the courtroom. It doesn't have anything to do with whether he suggested a question to the prosecutor. To the extent that's the objection, I'll overrule that objection. All right, so, any other issues?
MS. CAPPLEMAN: Nothing from the State.
MR. DECOSTE: Nothing on behalf of Ms. Magbanua.
JUDGE HANKINSON: Any other issues?
MR. ZANGENEH: Not at this time, Judge. [unintelligible]
JUDGE HANKINSON: Let's be clear, once you make a specific objection and I rule on that specific objection, there is no need to come back and object again. All that is, is arguing with my ruling. So, I mean, I understand you did it very respectfully, but that's not appropriate, and if you do it in front of the jury it will get a reprimand from me. That's not necessary. You've preserved your record, I've made a ruling, that's the end of it.
MR. ZANGENEH: That wasn't my intention, Your Honor.
JUDGE HANKINSON: Well, I understand. That's why I'm saying it. I'm not trying to chastise you, but once you make a specific objection and I make a specific ruling, it's up to the First DCA or the Florida Supreme Court to decide whether I'm right or wrong. There's no need for an "I wish to preserve my objection." You've made it. All right. Now, if you think you haven't made a specific objection, then you need to be clear on that. But you clearly made a specific objection, I've clearly ruled on it, and that's the end of the story for now. Okay.
JUDGE HANKINSON: I understand. I think there was a misunderstanding, all right? Anything else?
MS. CAPPLEMAN: No, sir.
JUDGE HANKINSON: Who are you going to start with, Ms. Cappleman?
MS. CAPPLEMAN: Tom Balboni.
JUDGE HANKINSON: All right. We'll be in recess until 9 o'clock.
JUDGE HANKINSON: All right, everybody be seated, please.
JUDGE HANKINSON: Why don't you have a seat. Just a second Mr. Balboni. Let make this comment. I know we need to swear you.
JUDGE HANKINSON: Good morning. Thank you all for being back here this morning. I hope everybody had a nice weekend. Again, if anybody experienced any problems that we need to discuss with you.
JUDGE HANKINSON: Anybody? No? All right.
JUDGE HANKINSON: If you'd face the clerk and be sworn in, please.
COURT CLERK: Sir, is the testimony you are about to give in this case the truth, the whole truth and nothing but the truth?
THOMAS BALBONI: I do.
JUDGE HANKINSON: Have a seat, please, sir. Slide up the microphone.
JUDGE HANKINSON: You may proceed.
MS. CAPPLEMAN: Sir, please introduce yourself and spell your name.
THOMAS BALBONI: My name is Thomas Balboni. I spell it B-A-L-B-O-N-I.
MS. CAPPLEMAN: How are you employed, Mr. Balboni?
THOMAS BALBONI: I'm employed in the Criminal Investigation Unit for the Office of the State Attorney for the Second Judicial Circuit of Florida.
MS. CAPPLEMAN: How long have you been so employed?
THOMAS BALBONI: Over 20 years now.
MS. CAPPLEMAN: And what are your duties at the State Attorney's Office?
THOMAS BALBONI: I provide investigative and logistic support to the Assistant State Attorneys in a variety of ways.
MS. CAPPLEMAN: All right. And does that include fingerprint comparisons?
THOMAS BALBONI: It does.
MS. CAPPLEMAN: Could you tell the jury what your training and experience is in the area of fingerprint examination and comparison?
THOMAS BALBONI: I got involved in the fingerprint sciences when I attended the FBI Academy's Science of Fingerprints course.
THOMAS BALBONI: I successfully completed that course.
THOMAS BALBONI: I've since then taken numerous other basic and advanced fingerprint examination courses presented by the Florida Department of Law Enforcement, the Crime Scene Institute of Florida, as well as the International Association for Identification, of which I'm an associate member under the discipline of fingerprint examiners.
MS. CAPPLEMAN: And how many times have you conducted fingerprint analysis and comparison?
THOMAS BALBONI: Thousands.
MS. CAPPLEMAN: And have you ever testified as an expert in the area of fingerprint analysis?
THOMAS BALBONI: Yes.
MS. CAPPLEMAN: How many times?
THOMAS BALBONI: Prior to today, 320 times.
MS. CAPPLEMAN: Judge, at this time, I tender Mr. Balboni as an expert in the area of fingerprint analysis and comparison.
JUDGE HANKINSON: Any voir dire?
MR. ZANGENEH: None from Mr. Garcia.
JUDGE HANKINSON: Magbanua.
MR. DECOSTE: No, Your Honor.
JUDGE HANKINSON: All right. You may proceed.
MS. CAPPLEMAN: Did you have an opportunity to conduct a fingerprint analysis and comparison in this case that we'll hear about today?
THOMAS BALBONI: I did.
MS. CAPPLEMAN: I now want to approach you with what's been introduced into evidence as State 78.
MS. CAPPLEMAN: Do you recognize State 78?
THOMAS BALBONI: I do.
MS. CAPPLEMAN: How do you recognize it?
THOMAS BALBONI: In the lower right-hand corner, this document has my personal notation written in blue ink indicating this was the specific document that I had conducted a comparison on.
MS. CAPPLEMAN: And what type of document is that?
THOMAS BALBONI: This is a uniform Florida pawnbroker's transaction form.
MS. CAPPLEMAN: And who purports to be pawning the item in this exhibit?
THOMAS BALBONI: It's listed as Sigfredo Garcia.
THOMAS BALBONI: Garcia there is — I did. This is the — this is a standard pre-printed applicant fingerprint form. It bears my personal notations all over it. It has my signature, my printed name, my date, the date these prints were obtained, the individual's name whose fingerprints appear, the location that I obtained these fingerprints, as well as the demographic information of the individual whose prints are here.
MS. CAPPLEMAN: So you actually took the fingerprints contained in State 79 from the individual?
THOMAS BALBONI: I did.
MS. CAPPLEMAN: And does the exhibit appear to be in the same or substantially the same condition as when you collected the prints?
THOMAS BALBONI: It does.
MS. CAPPLEMAN: Judge, at this time, I'd ask to move into evidence State's Exhibit 79.
JUDGE HANKINSON: Any objection?
MR. ZANGENEH: Not from Mr. Garcia.
MR. DECOSTE: No objection.
JUDGE HANKINSON: 79 will be admitted.
MS. CAPPLEMAN: Mr. Balboni, from whom did you collect the fingerprints in State's Exhibit 79?
THOMAS BALBONI: Sigfredo Garcia.
MS. CAPPLEMAN: And do you see that person present in the courtroom?
THOMAS BALBONI: Yes.
MS. CAPPLEMAN: Could you please point him out and describe what he's wearing?
THOMAS BALBONI: It's the individual with the blue shirt sitting to the right of defense counsel, with glasses.
MS. CAPPLEMAN: Let the record reflect the witness has identified the defendant, Mr. Garcia.
MS. CAPPLEMAN: Now, Mr. Balboni, once you collected the fingerprints from Mr. Garcia, did you make a comparison between the known fingerprints that you collected and the ones — or one — present on the pawn?
THOMAS BALBONI: I did.
MS. CAPPLEMAN: Could you tell the jury about that process?
THOMAS BALBONI: I conducted what's referred to as a side-by-side comparison. In this instance, since I had two paper documents, I merely determined, first of all, which digit appeared on the one bearing a single print. The document is actually listed as the right thumbprint of the individual who conducted the pawn transaction.
THOMAS BALBONI: Under magnification with appropriate lighting, I did a comparison for the purpose of determining whether or not that fingerprint matched the fingerprints that I had obtained from Mr. Garcia.
MS. CAPPLEMAN: And is it true that fingerprints are unique to each individual person?
THOMAS BALBONI: Yes, that is one of the premises of fingerprints — that no two individuals are known to have ever had identical fingerprints.
MS. CAPPLEMAN: And what was the result of your analysis of the comparison between the print you collected from Mr. Garcia and the one on the pawn ticket?
THOMAS BALBONI: It was my determination the fingerprint on the pawn ticket matched the number one digit, or the right thumbprint, of the individual whose fingerprints I obtained.
MS. CAPPLEMAN: Alright, if you could just remind us what the phone number is that's present for Mr. Garcia on the palm ticket.
THOMAS BALBONI: The phone number?
MS. CAPPLEMAN: Yes, sir.
THOMAS BALBONI: Area code 786-372-5986.
MS. CAPPLEMAN: No further questions.
JUDGE HANKINSON: Cross.
MR. ZANGENEH: Good morning. How are you, sir?
THOMAS BALBONI: I'm good. Thank you.
MR. ZANGENEH: So, Government's Exhibit 78. May I approach, Judge?
JUDGE HANKINSON: You may.
MR. ZANGENEH: Mr. Balboni, with regards to this document, which is already in evidence, this is the... Sorry.
MR. ZANGENEH: You were able to obtain a fingerprint on the bottom right-hand corner of this pawnbroker transaction form. Is that correct?
THOMAS BALBONI: Well, the fingerprint was already on the document.
MR. ZANGENEH: I apologize.
MR. ZANGENEH: You were able to utilize the fingerprint that was already on the document to be able to compare it to the print that you took of my client, correct?
THOMAS BALBONI: That's correct.
MR. ZANGENEH: Now, the government went and asked you what the phone number was on this pawnbroker transaction.
MR. ZANGENEH: Is that correct, sir?
THOMAS BALBONI: Yes.
MR. ZANGENEH: And do you want to read that back into the record?
THOMAS BALBONI: Area code 786-372-5986.
MR. ZANGENEH: Now, why don't we also go ahead and read into the record?
MR. ZANGENEH: I apologize. Let me ask this question first. Are you familiar with the facts of the homicide investigation in this case?
THOMAS BALBONI: Not entirely.
MR. ZANGENEH: Are you aware that the homicide took place in July? I don't want to go back to the podium.
JUDGE HANKINSON: You can leave the document with him if you want him to refer to it.
MR. ZANGENEH: Yes, Judge. Thank you.
MR. ZANGENEH: Mr. Balboni, would it sound about right, based on your knowledge — if you don't know, that's fine to say you don't know — that the homicide in this case took place in July, mid-July of 2014? Is that correct?
THOMAS BALBONI: I'm not aware of the date of this case.
MR. ZANGENEH: Go ahead and read to the members of the jury the date of the pawnbroker transaction form. It's in the top corner — that's in the top portion of it, sir.
THOMAS BALBONI: Transaction date is 10-15 of 2013.
MR. ZANGENEH: 2013.
MR. ZANGENEH: So that's October 15th, 2013?
THOMAS BALBONI: Correct.
MR. ZANGENEH: And the location of this pawnbroker shop — do you know where that is?
THOMAS BALBONI: It's listed on here as 1823 Northwest 79th Street in Miami, Florida.
MR. ZANGENEH: Did you have an occasion to travel to the actual pawnbroker location?
THOMAS BALBONI: I did not.
MR. ZANGENEH: Did you contact the pawnbroker location to see if they had surveillance video that memorialized the actions that transpired on — what was the date again, sir?
THOMAS BALBONI: 10-15 of 2013.
MR. ZANGENEH: On 10-15 of 2013?
THOMAS BALBONI: I did not.
MR. ZANGENEH: Are you aware of what the rules and regulations are within the state of Florida that require pawnbrokers to keep surveillance video?
THOMAS BALBONI: I am not.
MR. ZANGENEH: Are you aware whether or not Sigfredo Garcia was accompanied by anybody during this transaction?
THOMAS BALBONI: I am not aware of that.
MR. ZANGENEH: How long did you indicate that you'd been a crime scene analyst, sir?
THOMAS BALBONI: Over 20 years.
MR. ZANGENEH: The limited portion of your investigation was with regards to verifying this fingerprint from the pawnbroker slip and the prints that you were able to obtain for my client.
THOMAS BALBONI: That's correct.
MR. ZANGENEH: No other investigation.
MR. ZANGENEH: Let's go. During your investigation, did you inquire from this same pawnbroker if there were additional forms that were filled out related to Sigfredo Garcia?
THOMAS BALBONI: I did not.
MR. ZANGENEH: During this investigation, did you inquire to see if there are any pawnbroker transaction forms filled out by Luis Rivera?
THOMAS BALBONI: I did not.
MR. ZANGENEH: And would it be safe to say that you were conducting your investigation at the direction of the State Attorney, correct?
THOMAS BALBONI: That's correct.
MR. ZANGENEH: I have no further questions of this witness, Your Honor, thank you.
JUDGE HANKINSON: Magbanua.
MR. DECOSTE: Very briefly, Your Honor.
MR. DECOSTE: Good morning.
THOMAS BALBONI: Good morning, sir.
MR. DECOSTE: State's Exhibit 78. You were given a fingerprint of Sigfredo Garcia, right?
THOMAS BALBONI: I was provided — I obtained the fingerprints from Mr. Garcia. I personally obtained the — not on that document, but the other document that was provided to me in a sealed envelope.
MR. DECOSTE: So what was provided to you had Sigfredo Garcia's fingerprint.
THOMAS BALBONI: It has a single fingerprint on the lower right-hand corner of the form that was compared to the known prints of Mr. Garcia, and I determined that that in fact was the right thumbprint of Mr. Garcia on the pawn form.
MR. DECOSTE: No fingerprints for Katherine Magbanua, right?
THOMAS BALBONI: That's correct.
MR. DECOSTE: Nothing further, Your Honor.
JUDGE HANKINSON: Any juror have a question of this witness? Write your question down, please.
JUDGE HANKINSON: When did you take Mr. Garcia's fingerprints?
THOMAS BALBONI: I've noted that on the actual document, and it was on 6-18 of 2019.
JUDGE HANKINSON: And how long can a fingerprint last on a piece of paper and remain identifiable?
THOMAS BALBONI: Indefinitely.
JUDGE HANKINSON: Any follow-up, Ms. Cappleman?
MS. CAPPLEMAN: No, sir.
JUDGE HANKINSON: Garcia.
MR. ZANGENEH: Give me just one second, Judge. Nothing further from Mr. Garcia, Judge.
JUDGE HANKINSON: Magbanua.
MR. DECOSTE: Nothing, Your Honor.
JUDGE HANKINSON: All right. You can step down.