Charge Conference
205 linesJUDGE HANKINSON: So we need to have a charge conference. Y'all want a few minutes to get ready for that? And — And if you know — if you've designated who's in charge of your instructions. I don't care that everyone is sitting here.
JUDGE HANKINSON: And you have the ones I sent out, the second set I sent out.
JUDGE HANKINSON: Yes. We'll go to that.
JUDGE HANKINSON: Easily distracted.
JUDGE HANKINSON: Do you have something, Ms. Kawass?
MS. KAWASS: I'm going to mark it first, but we are discussing a special jury instruction as to certain kinds of evidence. I've given that copy to the state and they've given a copy to Ms. Designate. I'm just going to mark one now for the court so that we can have it. Do you want me to wait until we reach that portion of your instructions?
JUDGE HANKINSON: All right, we'll just kind of work through them then.
JUDGE HANKINSON: We emailed them. I mean, this has been several days. Just included the changes in the way we've done.
JUDGE HANKINSON: In principle, we're going to be a minute. I'm all good, unless you've got another cup.
MR. EVANS: I did.
JUDGE HANKINSON: All right.
JUDGE HANKINSON: And y'all may remain seated if you desire. It seemed hard on you to try to keep seated — you're more comfortable standing up when you respond. So, big, but I don't think you could stand up. All right, so let's just start at page one. Introduction to final instruction, statement of the charge, introduction to homicide. Anybody found any errors or have any objections to any of those?
MR. EVANS: No, sir. No.
MR. ZANGENEH: Judge, not for Mr. Garcia.
JUDGE HANKINSON: You need another copy of this?
MR. ZANGENEH: I'm fine right here.
JUDGE HANKINSON: Okay. We can burn another copy pretty quickly.
MR. ZANGENEH: No, it's okay.
JUDGE HANKINSON: All right. Okay. Second page. Justifiable homicide, excusable homicide. Let's take it through that.
JUDGE HANKINSON: Anybody found any errors or have any objections?
JUDGE HANKINSON: None of these have been changed from our original discussion.
MS. KAWASS: Okay. So, Your Honor, we would ask — Your Honor, may I have a support?
JUDGE HANKINSON: No, we need to decide who's speaking for whom. I don't know who you are, but if you want to do it all, you can do it all. But we're not going to bounce back and forth.
MS. KAWASS: Your Honor, I would have Ms. Kawass — Ms. Kristen Kawass handle this.
JUDGE HANKINSON: I can't hear you. I'm sorry.
MS. KAWASS: Your Honor, I believe for excusable homicide, which is jury instruction 7.1, there is a paragraph at the end after "dangerous weapon" that reads, "I will now instruct you on the circumstances that must be proved before the defendants may be found guilty of first-degree murder or any lesser included crimes."
JUDGE HANKINSON: It's just additional language, but I'm taking that out because it confuses things when we have multiple defendants. Generally we put a defendant's name there. We're dealing with two defendants, and I felt like that confused things. But that's why that was removed.
JUDGE HANKINSON: So let's go to first — go to first-degree murder.
JUDGE HANKINSON: And on page two, let's take the — go through the elements first. Any objection to the way first-degree murder has been defined?
MR. EVANS: Not from the state.
MR. ZANGENEH: Not from Mr. Garcia, Judge.
MS. KAWASS: Not from Ms. Magbanua.
JUDGE HANKINSON: All right. Any of the definitions — anyone have any issue as to the definitions? They're just the standard instruction.
MR. ZANGENEH: No objection from Mr. Garcia, Judge.
MR. EVANS: Not from the state.
MS. KAWASS: Not from Ms. Magbanua, Your Honor.
JUDGE HANKINSON: Okay. It's my understanding from our last charge conference that neither Garcia nor Magbanua are seeking lesser-includeds, but the state has sought the lesser-includeds of second-degree murder and manslaughter. I've previously ruled that those are category one lessers, and have overruled the request not to give lessers and will give second-degree murder and manslaughter. Do either of the defendants want to make any further argument on the lessers — the definition of second-degree murder, manslaughter? Anybody have any objections to the instruction given on manslaughter?
MR. ZANGENEH: No, Judge.
MS. KAWASS: No additional argument for Ms. Magbanua, Your Honor.
JUDGE HANKINSON: Okay. Aggravation of a felony by carrying a firearm. Anybody have objection to that instruction?
MR. EVANS: I have no objection. The only question I did have — I did have raised, because the word "defendant" is used several times in there and we are narrowing it to Mr. Garcia.
MR. EVANS: After each time "defendant" is used, should Mr. Garcia's name appear?
MR. EVANS: I don't know that it — I don't think it confuses it in any way as it is now. It's just a question I had, but I figured I'd raise it.
JUDGE HANKINSON: Do you want me to say "defendant Garcia" every time? It gets a little burdensome, but we can do so if anybody's requesting that.
MS. KAWASS: I would actually agree with the state, Your Honor. Just clarify for the jury.
JUDGE HANKINSON: So each place will say "defendant Garcia" where it says "defendant," right?
JUDGE HANKINSON: Everybody's in agreement for that?
MR. EVANS: Yes, sir.
JUDGE HANKINSON: One, two, three references to "defendant" where I've not included the name. Anybody see more than that?
MR. ZANGENEH: No, sir.
JUDGE HANKINSON: Okay.
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: All right. Principals — the state sought to have both versions of principal. I've fashioned the instruction that the pattern after the felony murder instruction kind of does that. I'll hear any objections to that.
MR. EVANS: No objection from the state, Your Honor.
MR. ZANGENEH: Judge, with regards to principal, I believe the government's theory only applies to the second definition of principal. They asked for the second definition. So, I would only ask for the second definition.
JUDGE HANKINSON: And Ms. Magbanua?
MS. KAWASS: And, Your Honor, it would actually be the opposite position for us. We feel that the paragraphs that relate to being an active participant hired by the defendant — we believe that that instruction is sufficiently encompassed by the principal instruction as it stands, and so we would object to the second part of the principal instruction that deals with an active participant.
MR. EVANS: I believe that we may proceed under either theory of principal in this case, Your Honor, and we're asking for both.
JUDGE HANKINSON: I'll overrule the defense objection. I think it all depends how the jury construes the facts. You could have it under the first version if they did not accept there was a prior conspiracy for hire, and they simply — Mr. Rivera and Mr.
JUDGE HANKINSON: Garcia — were here and decided to jointly commit a murder, then the first version would apply.
JUDGE HANKINSON: Or the second version could apply if they accept that it was a murder for hire. I think they're both accurate statements of the law, so I'll overrule the objection to that.
JUDGE HANKINSON: We left open whether the defense was seeking the independent act instruction.
MR. ZANGENEH: Mr. Garcia is requesting it.
MS. KAWASS: Your Honor, Ms. Magbanua was asking to remove that instruction. It does not fit the facts of this case. The purpose of the independent act defense is to exonerate the defendant from acts committed by another defendant which departed from an original plan, and the courts have interpreted the independent act instruction to require some evidence of a common design or common unlawful act, and we do not believe that that fits within the purview of Ms. Magbanua's defenses. We do not believe that there was any common scheme or plan that she was involved in.
JUDGE HANKINSON: Your Honor — I don't know that there is sufficient evidence to give it, but the state has not objected to it being given, so I'll overrule Magbanua's objection and give the independent act. Does anybody have an issue as to the wording of it?
MR. EVANS: No, sir.
MR. ZANGENEH: No, Judge.
JUDGE HANKINSON: Anything specific as to the wording of it from Magbanua? I understand your objection to giving it at all, but as to the wording of it?
MS. KAWASS: Would Your Honor be inclined to do the same as it did in regard to putting Garcia after "the defendant," since we're not requesting it on Ms. Magbanua's behalf?
JUDGE HANKINSON: No.
JUDGE HANKINSON: As to conspiracy, there's been no evidence of withdrawal, which is the highlighted portion, so I'll strike that.
JUDGE HANKINSON: Other than that, is there any objection to the definition that conspiracy is provided?
MR. EVANS: Not from the state.
MR. ZANGENEH: Not from Mr. Garcia.
MS. KAWASS: With the stricken portions, not from Ms. Magbanua.
JUDGE HANKINSON: I beg your pardon?
MS. KAWASS: We were going to move to strike the portion, so with those stricken we have no objection.
JUDGE HANKINSON: Solicitation — we're in the same posture. The last steps are not applicable, but beyond that, is there any objection as to the solicitation instruction?
MR. EVANS: No objection, Your Honor.
MS. KAWASS: I would just like to point out on behalf of Ms. Magbanua that the standard instruction states, for both elements where it says "the defendant solicited," Your Honor has put in "one or more persons" — the standard instruction requires that the persons' names be alleged, but I don't know how that would be done in this situation since there's two.
JUDGE HANKINSON: Yeah, I mean, I looked at that. I think it gets real confusing. I think it would cause more confusion than anything else. Not — the parts are stricken. But voluntary intoxication — do you want to be heard on that?
MR. EVANS: The state is requesting it, Your Honor. There was some indication that some — that alcohol and drugs were consumed, and therefore we would be requesting it in case somebody happens to try to raise that in argument.
JUDGE HANKINSON: Defense?
MR. ZANGENEH: I don't think at any point we proffered that we're going to be using an involuntary intoxication defense. In fact, we attempted to discredit Mr. Rivera with regards to his testimony that my client consumed a toxic amount of cocaine in a six-hour period, and that was also rebutted by Sergeant Downing's testimony that there was nothing suspicious about when he stopped Luis Rivera. So I don't — I think it would be extremely confusing. We're not making that allegation, at least with regards to Mr. Garcia. I haven't made that allegation in opening, and I will not be making that allegation in my close.
MS. KAWASS: Your Honor, there's no evidence pertaining to Ms. Magbanua of any form of voluntary intoxication. So we would ask that that paragraph be stricken in regards to Ms. Magbanua.
JUDGE HANKINSON: I would agree that there's no evidence of that as to Ms. Magbanua, but I don't see how she's prejudiced in any way by the instruction.
JUDGE HANKINSON: Do you see some way in which she is prejudiced by that?
MS. KAWASS: I mean, no, Your Honor. I just don't think it's apt, because I don't know if Your Honor would be inclined to include Garcia's name after the one time it mentions defendants — but that would be the only —
JUDGE HANKINSON: I'll take that as an objection. You wanted to be heard on a circumstantial evidence instruction. This would be the point where, if we were going to do it, I would include a circumstantial evidence instruction.
MS. KAWASS: Yes, Your Honor.
MS. KAWASS: Yes, Your Honor. I actually submitted a copy to the court, but I have an extra copy if Your Honor would like. Madam Clerk, I have for you guys the circumstantial evidence instruction.
JUDGE HANKINSON: Okay. So this would be Magbanua one — number one?
JUDGE HANKINSON: Who wanted to be heard?
MR. DECOSTE: Your Honor, as argued by Ms. Kawass, we believe that this is a purely circumstantial case, and it was in Your Honor's discretion whether to give us a special instruction regarding circumstantial evidence. So we'd be asking, based on the evidence that was adduced at trial, that the instruction be given on Ms. Magbanua's behalf.
JUDGE HANKINSON: Garcia? I'm denying the request to give this instruction.
JUDGE HANKINSON: I think it causes much more confusion than it assists for the jury. So I'm simply going to write "denied," the date, and initial.
JUDGE HANKINSON: Madam Clerk, we need to make this part of the record. Barbara, are you listening? This needs — now, but you need to use this copy that I've noted on.
MR. EVANS: Your Honor, not to change your mind, but for the record, the state would have objected to the giving of the circumstantial evidence instruction.
JUDGE HANKINSON: Plea of not guilty, reasonable doubt, burden of proof — simply a standard instruction. Anybody have any issue on that?
MR. EVANS: No, sir.
MR. ZANGENEH: No, Judge.
MS. KAWASS: No objection, Your Honor, on Ms. Magbanua's behalf.
JUDGE HANKINSON: Weighing the evidence — one through five are given in all cases, six through ten are optional.
JUDGE HANKINSON: I'll hear first from Garcia as to which ones you want of six through ten.
MR. ZANGENEH: I want six, Judge.
MR. ZANGENEH: Number seven. Number eight. Number nine. And number ten.
JUDGE HANKINSON: Where do you get ten?
MR. ZANGENEH: I think the inference with Ms. Magbanua's testimony, with regards to when I asked about Luis Rivera's general reputation for being a violent person.
JUDGE HANKINSON: Reputation for violence. Not have allowed general reputation. There's no such thing as general reputation.
MR. ZANGENEH: Correct.
JUDGE HANKINSON: Anyway. Magbanua.
MS. KAWASS: Your Honor, we would ask for one through nine, and we have no objection to the striking of number ten.
JUDGE HANKINSON: State.
MR. EVANS: We're in agreement. Strike number ten and the rest is fine.
MS. KAWASS: Your Honor, if I may — the paragraph that begins, "You must consider the testimony of some witnesses with more caution than others."
JUDGE HANKINSON: We're going to go through it paragraph by paragraph.
JUDGE HANKINSON: I get easily mixed up. Let's not get me mixed up.
JUDGE HANKINSON: The next paragraph — and we're just doing it paragraph by paragraph — whether the State's met its burden of proof, is standard instruction.
JUDGE HANKINSON: The next one is optional. Does the defense seek the law enforcement witness instruction?
MR. ZANGENEH: Yes.
MS. KAWASS: Yes, Your Honor.
JUDGE HANKINSON: Does the State want to be heard on that?
MR. EVANS: No, Your Honor, we agree.
JUDGE HANKINSON: Expert witnesses, we did.
JUDGE HANKINSON: Expert witnesses — I assume both sides are seeking that instruction?
MS. KAWASS: Yes, Your Honor.
MR. ZANGENEH: Yes, Your Honor.
JUDGE HANKINSON: Okay. Yeah, that next paragraph sometimes needs cleaning up.
JUDGE HANKINSON: All right. You wanted to be heard on the next paragraph.
MS. KAWASS: Yes, Your Honor.
MS. KAWASS: Where it reads, "for example, a witness who claims to have helped a defendant commit a crime," the standard jury instruction also gives an option, "has been promised immunity from prosecution."
MS. KAWASS: Wendi Adelson was offered immunity from prosecution in this case, so we would be seeking the addition of that sentence.
JUDGE HANKINSON: She was not given immunity from prosecution — it's use immunity.
MS. KAWASS: Your Honor, it would be our position that it's still immunity, and we would just request that that portion be included in the instruction.
JUDGE HANKINSON: Well, I've already explained to the jury what types of immunity there are. She does not have transactional immunity; she has use and derivative use immunity.
JUDGE HANKINSON: What's your position, Mr. Evans?
MR. EVANS: I don't believe that the defense is entitled to get it. I believe the court explained the immunity to the jury, that it's clear that she's just like any other witness. This immunity only allowed her not to invoke her Fifth Amendment right. It gave her no transactional immunity, and it didn't give immunity for her testimony in the sense that, while it may not be used in the future, it wasn't that she couldn't — she had an option not to truthfully testify. So I don't believe that it would apply in this situation, and we would not be requesting it and would object to it.
MR. ZANGENEH: So it does say — or the standard, it says "has been promised" — and it does kind of apply. To be able to use it. I think we need to be able to explore that, and then we have a jury instruction to back this up. We're not going to go — this statement of the law, the court's made it clear. But I think having the fact that she has been granted some sort of immunity from the prosecutor's office is something that we can bolster ourselves, that it's in a jury instruction to indicate why she would testify the way she did.
JUDGE HANKINSON: But it's not been granted by the State Attorney — it's been granted by the court. The witness has been ordered to answer questions. She's not been granted any kind of benefit from the State Attorney.
MR. ZANGENEH: Well, I understand that, but the State Attorney's who subpoenaed her.
JUDGE HANKINSON: Right.
MR. ZANGENEH: And the subpoena coming in, she was represented by counsel. She understands that nothing that she says in this case during her testimony can be used against her in prosecution.
MR. ZANGENEH: I think it's applicable, Judge.
JUDGE HANKINSON: I mean, I think it's certainly something you can argue to the jury, but I don't think that's what is intended by this paragraph.
JUDGE HANKINSON: This is — I mean, this was a witness who refused to cooperate, not one who has worked out a deal to cooperate. She refused to cooperate.
JUDGE HANKINSON: This is dealing with persons that some deal has been strike with. I don't think it's applicable. I'll consider it a little bit more — I mean, I'll reread the standard. But at this point in time, I'm one of the I need to talk about how to word this next paragraph.
JUDGE HANKINSON: I would think we just should just use the defendant's name — to say Ms. Magbanua has become a witness. Her testimony should be considered like any other witness's.
JUDGE HANKINSON: Anybody have a better idea?
MR. ZANGENEH: Are you going to say Katherine Magbanua or defendant Magbanua? Because you did refer to my client as the defendant Garcia. I just want to be consistent.
JUDGE HANKINSON: All right. "Defendant Magbanua has become a witness. You should apply the same rules to consideration of her testimony that you apply to the testimony of other witnesses." Anybody have a problem with that?
MS. KAWASS: No, Your Honor.
MS. KAWASS: Your Honor, my suggestion would have been to say, instead of her name, I would have just suggested to say "one of the defendants in this case." But I prefer that — maybe easier — "one of the defendants in this case has become a" —
JUDGE HANKINSON: I don't think you have a position on that, Mr. Clarkson. Is that what you're saying?
MR. ZANGENEH: Well, Judge, yeah, that's fine. That's fine.
JUDGE HANKINSON: What's your issue?
MR. ZANGENEH: It's just, if that's going to be the way that we phrase things, then it should say "one of the defendants" when we're talking about aggravation of a felony by carrying a firearm — "one of the defendants committed second degree murder" instead of "defendant Garcia." But listen, that's fine, Judge. I'll retract my objection. I'm okay with it.
JUDGE HANKINSON: You want the paragraphs on defendant not testifying?
MR. ZANGENEH: I'm sorry, Judge, I lost my page. Yes, Judge.
JUDGE HANKINSON: Both paragraphs?
MR. ZANGENEH: Correct.
JUDGE HANKINSON: Defendant's statements. Are you seeking that instruction, Mr. Zangeneh?
MR. ZANGENEH: Yes.
JUDGE HANKINSON: And I think we only had one by Mr. Garcia, correct?
MR. ZANGENEH: Yeah, it was entered into evidence.
JUDGE HANKINSON: So, say, "a statement claim has been made by one of the defendants."
JUDGE HANKINSON: The rest of it would be standard. Do you have a problem with that?
MR. ZANGENEH: No, Your Honor.
MR. EVANS: Acceptable.
JUDGE HANKINSON: Rules for deliberation. Is this a standard instruction? Does anybody have an issue with that?
MR. ZANGENEH: No, sir.
MR. EVANS: No, Judge.
MS. KAWASS: Your Honor, I'd just like to note that for paragraph 5 — I'm not sure if Your Honor just decided to take that part out, but there is a second sentence, there is a second sentence that doesn't apply in death cases, so that's why it was taken out.
MS. KAWASS: No objection otherwise, Your Honor.
MR. EVANS: I hear no objection otherwise. Is she objecting to it being taken out? Because I thought the whole idea behind this was not to let the jury know that in the guilt phase the death penalty wasn't being thought about.
JUDGE HANKINSON: That was Ms. Magbanua's request, that we not inform the jury that she's not exposed to the death penalty. So I don't think you want to start making distinctions as to her at this point in time.
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: So are you objecting to the way paragraph six is worded? I'm sorry — paragraph five.
MS. KAWASS: Your Honor, you can leave it as it is. Right. No objection.
JUDGE HANKINSON: No objection. You can say no objection — no objection doesn't hurt. All right. Cautionary instruction, simply a standard instruction. Multiple counts, multiple defendants. The only thing that's a little confusing here is part of the charges are by indictment, part of them are by information. That's why it's just slightly changed from the standard — I didn't want to get into indictment and information, or indictment or information. Anybody have a problem with that?
MR. EVANS: Not from the State.
MS. KAWASS: No objection from Ms. Magbanua.
JUDGE HANKINSON: Verdict — Had to do the similar — just took out indictment or information, just said charges. Anybody have a problem with that?
MR. EVANS: No, sir.
MR. ZANGENEH: No, Judge.
MS. KAWASS: No, Judge.
JUDGE HANKINSON: Submitting the case to the jury. I've tampered with it just slightly, but it's by and large a standard instruction. I think I've changed what they're supposed to do with their phones, and slightly about the evidence. I don't think there's anything of controversy there.
JUDGE HANKINSON: Anybody have any issue with that?
MR. EVANS: No objection from the State, Your Honor.
MR. ZANGENEH: No. Judge.
MS. KAWASS: Your Honor, I'd just like to note that the standard reads, in the second line of the second paragraph, that if a juror goes to the restroom, that it'll be —
JUDGE HANKINSON: I understand. I think that's an insult to the jury. I'm not going to tell them what to do when they go to the bathroom. I'm sorry.
JUDGE HANKINSON: Any different? Any — so I think we've covered all the issues. Anybody have any other issues they wish to raise? Verdict instruction. Verdict form. I took out reference to the enhancements on Ms. Magbanua's portion. Other than that, did y'all get the revised version? It wasn't changed as to Mr. Garcia's — I didn't send a new one on Garcia, but I sent a new one on Magbanua that took out the enhancement. I didn't bring it down, but —
MR. EVANS: Your Honor, the statement had an issue with either verdict form. The latest verdict form that was sent on the Magbanua looked acceptable to the State, and the original —
JUDGE HANKINSON: Say what?
MR. EVANS: The latest version — I guess the second version, whichever one you're talking about now, the one that removes the firearm questions and stuff — was acceptable to the State, and the one for Mr. Garcia, which was the original one, looked acceptable to the State.
JUDGE HANKINSON: Magbanua?
MS. KAWASS: No objection from Ms. Magbanua to the verdict form.
MS. CAPPLEMAN: Garcia.
MR. ZANGENEH: No objection.
JUDGE HANKINSON: I want to get these totally finalized this evening before we leave, so I can go ahead and make copies and I'm not having to do that in the morning. It'll probably take us about 30 minutes to have copies prepared. How do y'all want to do that? Y'all want to reconvene in 20 or 30 minutes, or what would you prefer? We can email them to you, but what I want is to get it resolved this afternoon, whether there's some issue — not be figuring it out in the morning. Why don't we reconvene in about 20 minutes. I'll have new —
MS. CAPPLEMAN: I prepared a wire call — the State's 138. This one only has the calls that were admitted. The previous one had all the ones the State was seeking to admit. So I don't know if you want to replace 138 with this exhibit and make the old 138 a court exhibit.
JUDGE HANKINSON: Is the defense in agreement, since it was y'all's objection. No, sustained. Do you want the one with all the calls in evidence for appeal purposes? All right, so mark one. We need to make sure which one goes to the jury — the new one needs to go to the jury, the other one needs to be only for purposes of review.
JUDGE HANKINSON: Okay. All right. About 20 minutes, we'll be back.
JUDGE HANKINSON: ...the way the evidence did go along with what Magbanua had requested. Neither way is exactly perfect, but there was also the other gentleman that assisted them up here that was never prosecuted, I guess, but he wasn't prosecuted, so you could argue that immunity. So, anyway, substantive change, other than that paragraph 9 away in the evidence that took out reference.
JUDGE HANKINSON: In the verdict form — y'all looked over those? So we will finalize and make copies. See you all in the morning at 8:30.