3.Charge Conference
334 linesJUDGE HANKINSON: My rulings as to motions will be the same, and I'll deny the motion for judgment of acquittal as to Magbanua.
So we need to have a charge conference. Y'all want a few minutes to get ready for that? And if -- you know, if you've designated who's in charge of jury instructions, I don't care that everyone is sitting here. But --
MR. ZANGENEH: We're ready. I know that Mr. Garcia is ready.
MS. KAWASS: And, Your Honor, we're --
JUDGE HANKINSON: And you have the ones I sent out, the second set I sent out, right?
MR. ZANGENEH: No.
(off-the-record discussion.)
MR. ZANGENEH: Oh, I have it right in front of me, Judge. I'm sorry.
JUDGE HANKINSON: Okay. So y'all are ready?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: Ms. Cappleman.
MS. CAPPLEMAN: Yes.
JUDGE HANKINSON: All right. Let's go to that.
MR. DECOSTE: Does Your Honor mind if I help reorganize the exhibits?
JUDGE HANKINSON: You can do so quietly. I'm easily distracted.
Do you have something, Ms. Kawass?
MS. KAWASS: Your Honor, I'm going to mark it, first, but we are requesting a special jury instruction as to circumstantial evidence. I've given a copy to the State. I've given a copy to Mr. Zangeneh. And I'm just going to mark one now for the Court so that he can have it. Do you want me to wait until we've reached that portion of the jury instructions to make argument?
JUDGE HANKINSON: Yeah. Yeah.
MS. KAWASS: Thank you, Judge.
JUDGE HANKINSON: All right. we'll just kind of work through them then. what are you looking for, Ms. Kawass?
MS. KAWASS: Your Honor, we didn't get the second set of jury instructions. I don't know if they were e-mailed.
JUDGE HANKINSON: We e-mailed them -- I mean, this has been several days ago. It just included the changes in the way we've done principal.
MR. EVANS: I've got a spare copy.
MS. KAWASS: Oh, thank you so much.
(off-the-record discussion.)
JUDGE HANKINSON: Actually, I didn't print out the second version either. We're going --
MR. EVANS: I have ano --
JUDGE HANKINSON: -- to need to be a minute. I'm going to go make copies, unless you've got another copy.
MR. EVANS: I do.
JUDGE HANKINSON: All right. Let me have another.
MR. EVANS: I thought somebody had taken mine from upstairs and it's down here. So I made two copies.
JUDGE HANKINSON: All right. And y'all may remain seated if you desire. If it seems hard on you to try to keep seated, so if you're more comfortable standing up when you respond, so be it. But I don't need you to stand up.
All right. So let's just start at page 1, introduction to final instructions, statement of the charge, introduction to homicide. Anybody found any errors or have any objections as to any of those?
MR. EVANS: No, sir.
MR. ZANGENEH: No, Judge. Not from Mr. Garcia.
MS. KAWASS: None from Ms. Magbanua.
JUDGE HANKINSON: Mr. Zangeneh, do you need another copy of this? we can --
MR. ZANGENEH: I'm fine right here, Judge. If you don't mind.
JUDGE HANKINSON: Okay. We can burn another copy pretty quickly.
MR. ZANGENEH: No. It's okay. I'm ready.
JUDGE HANKINSON: Okay. Second page, justifiable homicide, excusable homicide, let's take it through that. Anybody found any errors or have any objections?
MR. EVANS: NO, Sir.
JUDGE HANKINSON: None of these have been changed from our original .
(off-the-record discussion.)
MS. KAWASS: So, Your Honor, we would ask -- Your Honor, may I address the Court?
JUDGE HANKINSON: No. we need to decide who's speaking for whom. I mean, if -- 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: And, Your Honor, I would have Ms. Kawass, MS. Kristen Kawass handle this.
JUDGE HANKINSON: Okay.
MS. KAWASS: She's with my law firm. She's with --
JUDGE HANKINSON: Okay.
MS. KAWASS: -- the appellate department so -- and she did all the research. So...
JUDGE HANKINSON: Okay. Go ahead.
MS. KAWASS: Your Honor, I believe for excusable homicide, there is a paragraph in the standard instructions that references, I now instruct you on the circumstances --
JUDGE HANKINSON: I can't hear you. I'm sorry.
MS. KAWASS: I'm so sorry. 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 now instruct you on the circumstances that must be proved before -- it would be, the defendants may be found guilty of first degree murder or lesser included crime. It's just additional language but it is --
JUDGE HANKINSON: Right. I've taken that out.
MS. KAWASS: Okay.
JUDGE HANKINSON: 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. So that's why that was removed. So let's go to first degree murder. And on page 2, 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, Your Honor.
MR. ZANGENEH: Not for Mr. Garcia, Judge.
MS. KAWASS: Not for Ms. Magbanua, Your Honor.
JUDGE HANKINSON: All right. Any of the definitions? Anyone have any issues as to the definitions? They're just a standard instruction but...
MR. ZANGENEH: No objection for Mr. Garcia, Judge.
MR. EVANS: None from the State.
JUDGE HANKINSON: MS. Kawass.
MS. KAWASS: None for 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 1 lessers and have overruled the request not to give lessers and give second degree murder and manslaughter. Either of the defendants want to make any further argument on the lessers?
MR. ZANGENEH: No, Judge.
MS. KAWASS: No additional argument for Ms. Magbanua, Your Honor.
JUDGE HANKINSON: All right. The definition of second degree murder. Anybody found any errors there, have any objection to that instruction?
MR. EVANS: Not from the State.
MR. ZANGENEH: With regards to second degree murder, Judge?
JUDGE HANKINSON: Yes, Sir.
MR. ZANGENEH: No, Judge.
MS. KAWASS: No objection from Ms. Magbanua.
JUDGE HANKINSON: Manslaughter, anybody have any objection to the instruction given on manslaughter?
MR. EVANS: No, sir. Not from the State.
MR. ZANGENEH: Not for Mr. Garcia.
MS. KAWASS: Not for Ms. Magbanua.
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 being used several times in there and we were narrowing it to Mr. Garcia.
JUDGE HANKINSON: Right.
MR. EVANS: Should -- after each time defendant is used, should Mr. Garcia's name appear? TI don't know that it -- I don't think it confuses anything the way it is now. It just was a question I had, so I figured I'd raise it.
JUDGE HANKINSON: well, do you want me to say Defendant Garcia every time? I think it gets a little burdensome, but we can do so if anybody's requesting that.
MS. KAWASS: I --
MR. ZANGENEH: Yes, Judge.
MS. KAWASS: -- I would actually agree with the State.
JUDGE HANKINSON: Okay.
MS. KAWASS: Just to clarify for the jury.
JUDGE HANKINSON: Okay. So each place we'll say, Defendant Garcia where it says, defendant, right?
MR. ZANGENEH: Yes, Judge.
MS. KAWASS: Yes, Your Honor.
MR. EVANS: Yes.
JUDGE HANKINSON: Everybody's in agreement for that?
MR. EVANS: Yes, sir.
MS. KAWASS: Yes, Your Honor.
JUDGE HANKINSON: I so one, two, three, references to defendant where I've not included the name. Anybody see more than that?
MR. EVANS: NO, Sir.
MR. ZANGENEH: No, Judge.
JUDGE HANKINSON: Okay.
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: Principals, the State had sought to have both versions of principal. I've fashioned an instruction that's patterned after felony murder instruction that 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...
(off-the-record discussion.)
MR. ZANGENEH: Definition of principal. So I would only ask for the second definition.
JUDGE HANKINSON: well, there -- okay. I'm sorry.
And Magbanua.
MS. KAWASS: And, Your Honor, I would -- we would actually be the opposite position for us. we feel that the paragraphs that relate to being when an active participant's hired by the defendant, we believe 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 hired by the defendant.
JUDGE HANKINSON: Mr. Evans.
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: All right. I'11l 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. Garcia were here and decided to jointly commit a murder, then the first version would apply 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.
we've left open whether the defense was seeking the independent act instruction.
MR. ZANGENEH: Judge, Mr. Garcia is requesting it.
JUDGE HANKINSON: Okay.
MS. KAWASS: And, Your Honor, Ms. --
JUDGE HANKINSON: Magban -- I'm sorry.
MS. KAWASS: Ms. Magbanua is asking to remove that instruction. It does not fit the facts of this case. The purpose of independent act defense is to exonerate the defendant from acts coming to 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 a common unlawful act. And we do not believe that that fits within the purview of Ms. Magbanua's defense, as we do not believe that there was any common scheme or plan that she was involved in.
JUDGE HANKINSON: Mr. Evans.
MR. EVANS: Your Honor, I don't know that there is sufficient evidence to give it. The State would not object to it being given.
JUDGE HANKINSON: I'll overrule Magbanua's objection. we'll 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 all, but as the wording of it.
MS. KAWASS: Would Your Honor be inclined to do the same as it did in regard to putting Garcia after defendant since we're not requesting it on Magbanua's behal f?
JUDGE HANKINSON: No. All right. As to conspiracy, there's been no evidence of withdrawal, which is the highlighted portion. So I'll strike that. Other than that, is there any objection to the definition of conspiracy as 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 portions that we do -- stricken. We have no objection.
JUDGE HANKINSON: All right. Solicitation, we're in the same posture. The last four paragraphs are not applicable. But beyond that, is there any objection as to the solicitation instruction?
MR. ZANGENEH: It's standard, Judge.
MR. EVANS: No objection, Your Honor.
MR. ZANGENEH: NO, no objection.
JUDGE HANKINSON: Okay.
MS. KAWASS: Your Honor, 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 and The Honor has put in one or more persons that 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 is two --
JUDGE HANKINSON: Right. Yeah.
MS. KAWASS: -- two defendants.
JUDGE HANKINSON: I mean, I looked at that. I think it will get real confusing.
MS. KAWASS: Right. Yeah. It would.
JUDGE HANKINSON: I think it would cause more confusion than assist. So anything else?
MS. KAWASS: Not for Ms. Magbanua, Your Honor, if the highlighted parts are stricken.
JUDGE HANKINSON: Right.
MS. KAWASS: Right.
JUDGE HANKINSON: Voluntary intoxication, anybody want to be heard on that?
MR. EVANS: The State is requesting that, Your Honor, there was some indications that some maybe 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: Judge, I...
JUDGE HANKINSON: what's that?
MR. ZANGENEH: I don't think at any point we proffered that we're going to be using a voluntary 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 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 closing.
JUDGE HANKINSON: Magbanua.
MS. KAWASS: Your Honor, there is 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: well, 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. 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 applicable. 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: All right. I'll take that as an objection. I overrule the objection.
You wanted to be heard on the 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. AS MS. --
JUDGE HANKINSON: And you've done it -- something in writing?
MS. KAWASS: Yes, Your Honor. I actually submitted a copy to the Court, but I have an extra copy if Your Honor would like.
JUDGE HANKINSON: Madam Clerk, do you have that?
MR. ZANGENEH: I got it for you.
COURT CLERK: what do you need?
JUDGE HANKINSON: The circumstantial evidence instruction they've proposed. Okay. So this would be Magbanua No. 1.
MS. KAWASS: Yes, Your Honor.
JUDGE HANKINSON: Okay. who wanted to be heard?
MS. KAWASS: Your Honor, as argued by Ms. Tara Kawass at JOA, we believe that this is a purely circumstantial case. And it was in Your Honor's discretion whether to give a special instruction regarding circumstantial evidence so that 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.
MR. ZANGENEH: I have no position on this, Judge.
JUDGE HANKINSON: All right. I will deny the request to give this instruction. I think it causes much more confusion than it assists for the jury. So I'm simply going to write denied, the date and the initial.
Madam Clerk, we need to make this part of the record. Barbara, are you listening?
COURT CLERK: Yes. I have a copy, Your Honor.
JUDGE HANKINSON: Yeah. But we need to use this copy --
COURT CLERK: Okay.
JUDGE HANKINSON: -- that I've noted on.
COURT CLERK: Okay.
MR. EVANS: And, Your Honor, not to change your mind, but the record -- the State was -- would have objected to the giving the circumstantial evidence instruction.
JUDGE HANKINSON: Plea of not guilty, reasonable doubt, burden of proof is 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. $ix through ten are optional.
I'll hear, first, from Garcia as to which ones you want of six through ten.
MR. ZANGENEH: I want six, Judge, No. 7, No. 8, No. 9, and No. 10.
JUDGE HANKINSON: where do you get ten?
MR. ZANGENEH: well, I think the inference with Ms. Magbanua's testimony with regards to when I asked about Luis Rivera's general reputation was for being a violent person -- I'm sorry, Judge. You're right.
JUDGE HANKINSON: It's reputation for violence. That certainly would not --
MR. ZANGENEH: Yeah, Judge. You're right.
JUDGE HANKINSON: -- have allowed general reputation. There is no such thing as general reputation.
MR. ZANGENEH: Correct, Judge.
JUDGE HANKINSON: But, anyway. Magbanua.
MS. KAWASS: Your Honor, we would ask for one through nine, and we have no objection to the striking of No. 10.
MR. EVANS: we're in agreement. Strike No. 10. The rest is fine.
JUDGE HANKINSON: Okay.
MS. KAWASS: Your Honor, if I may. The paragraph that begins, you must consider the testimony of some witnesses with more caution than others, and it, for --
JUDGE HANKINSON: All right. Let me -- we're going to go through it --
MS. KAWASS: Okay.
JUDGE HANKINSON: -- paragraph by paragraph. I get easily mixed up. Let's not get me mixed up.
The next paragraph. And we're just doing it paragraph by paragraph, whether the State submitted burden of proof is standard instruction.
The next one is optional. Does the defense seek the law enforcement witness instruction?
MR. ZANGENEH: Yes?
MS. KAWASS: Yes, Your Honor.
MR. ZANGENEH: Respectfully.
JUDGE HANKINSON: State want to be heard on that?
MR. EVANS: No, Your Honor. We agree.
JUDGE HANKINSON: Expert witnesses. we had expert witnesses. I assume both sides are seeking that instruction?
MR. ZANGENEH: Yes, Judge.
MS. KAWASS: Yes, Your Honor.
MR. EVANS: Yes, Your Honor.
JUDGE HANKINSON: Okay. Yeah. That next paragraph sometimes needs cleaning up.
All right. You wanted to be heard on the next paragraph?
MS. KAWASS: Yes. Yes, Your Honor. when it -- where it reads, for example, a witness who claims to have helped the defendant commit a crime, comma, the standard jury instruction also gives an option, has been promised immunity from prosecution. 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. She has 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 this -- in the instructions.
JUDGE HANKINSON: well, it's -- 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. I don't know.
what's your positon, Mr. Evans?
MR. EVANS: I don't believe 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 didn't give immunity for her testimony in the sense that while it may not be used against her 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, Your Honor, and would object to it.
JUDGE HANKINSON: Mr. Zangeneh.
MR. ZANGENEH: So it does say -- or the standard does say, has been promised immunity from prosecution. It does kind of apply, because she is granted immunity from her testimony from the prosecution being able to use it. I think that we need to be able to explore that, and then we have a jury instruction to back this up. we're not going to give a misstatement 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, it's something that we can bolster ourselves if it's in a jury instruction to, 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: But I understand that. But the State Attorney's who's subpoenaed.
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 to, to -- against her in prosecution. I think it's applicable, Judge. But I think we --
JUDGE HANKINSON: Okay. 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. This is -- I mean, this was a witness who refused to cooperate, not one who was -- worked out a deal to cooperate. She refused to cooperate. This is dealing with persons that some deal has been struck with. I don't think it's applicable. I'll consider it a little bit more. Let me. I'll reread the standard but I don't -- at this point jin time, I'm going to overrule the request to add in immunity.
Next paragraph is about child witness. we did not have child witness. we need to talk about how to word this next paragraph. I would think we just -- should just use the defendant's name. Just say, Ms. Magbanua has become a witness. Her testimony should be considered like any other witness. Anybody have a better idea?
MR. ZANGENEH: Judge, are you going to say Katherine -- Ms. Magbanua or Defendant Magbanua? Because you did refer to my client as Defendant Garcia. I just don't want -- to be consistent.
JUDGE HANKINSON: All right. Defendant Magbanua has become a witness. You should apply the same rules of consideration of her testimony that you apply to the testimony of other witnesses. Anybody have a problem with that?
MS. KAWASS: No, Your Honor.
MR. EVANS: NO, Sir.
MS. KAWASS: Oh, sorry. No, go ahead.
MR. EVANS: No, sir.
JUDGE HANKINSON: All right.
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 mean...
JUDGE HANKINSON: All right. If you prefer that but -- it may be easier. One of the defendants --
MS. KAWASS: One of the defendants in this case has become a witness and it would read, you should apply --
JUDGE HANKINSON: Are you okay with that, Mr. Evans?
MR. EVANS: I'm okay with it, Your Honor.
JUDGE HANKINSON: I don't think you have a position on that, Mr. Garcia -- Mr. Zangeneh.
MR. ZANGENEH: well, Judge -- yeah. That's fine.
JUDGE HANKINSON: Okay.
MR. ZANGENEH: That's fine.
JUDGE HANKINSON: what's your issue?
MR. ZANGENEH: It's just if we're -- if that would be the line of the way that we phrase things, then it should say, one of the defendants -- when we're talking about aggravation of a felony by -- 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: All right. You want the paragraphs on defendant not testifying?
MR. ZANGENEH: I'm sorry, Judge. I lost my place. Okay. I got it. Yes, Judge.
JUDGE HANKINSON: Both paragraphs?
MR. ZANGENEH: Correct.
JUDGE HANKINSON: All right. 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. Yes.
JUDGE HANKINSON: So I will say a statement claimed has been made by one of the defendants. And the rest of it would be standard.
MR. ZANGENEH: Yes, Judge.
JUDGE HANKINSON: Do you have a problem with that?
MR. ZANGENEH: NO, Your Honor.
MR. EVANS: Acceptable.
JUDGE HANKINSON: Rules for deliberation, it's just the standard instruction. Anybody have an issue with that?
MR. EVANS: NO, Sir.
MR. ZANGENEH: No objection.
MS. KAWASS: Your Honor, I would just like to note that for paragraph 5 -- I'm not sure if Your Honor just decided to take that part out --
JUDGE HANKINSON: Yeah.
MS. KAWASS: -- but there is a second sentence that talks --
JUDGE HANKINSON: There is a --
MS. KAWASS: -- about the sentence.
JUDGE HANKINSON: -- second sentence that doesn't apply in death penalty cases.
MS. KAWASS: Right.
JUDGE HANKINSON: So that's why it was taken out.
MS. KAWASS: And no objection, otherwise, Your Honor.
JUDGE HANKINSON: Okay.
MR. EVANS: But, Your Honor, 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 if the pen -- the guilt, if death penalty wasn't being sought against both.
JUDGE HANKINSON: That was at 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 6 is worded?
MR. ZANGENEH: Paragraph 5, Your Honor.
JUDGE HANKINSON: I'm sorry. Paragraph 5.
(off-the-record discussion. )
MS. KAWASS: Your Honor, you can leave it as it is.
JUDGE HANKINSON: All right. No objection?
MS. KAWASS: No objection, Your Honor.
JUDGE HANKINSON: All right. You can say no objection.
MS. KAWASS: No objection.
JUDGE HANKINSON: It doesn't hurt.
All right. Cautionary instruction, simply a standard instruction.
Multiple counts, multiple defendants. The only thing that is 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. ZANGENEH: No, Judge, not from Mr. Garcia.
MR. EVANS: Not from the State.
MS. KAWASS: No objection from Ms. Magbanua.
JUDGE HANKINSON: Verdict had to do with the similar. I 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 case to the jury. I've tampered with it just slightly, but it's by and large a standard instruction. I think that will -- 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. Anybody have any issue with that?
MR. EVANS: No objection from the State, Your Honor.
MR. ZANGENEH: No objection --
MS. KAWASS: Your Honor --
MR. ZANGENEH: -- not from Mr. Garcia.
MS. KAWASS: -- I'd just like to note that the standard reads, in the second line of the second paragraph, if a juror goes to the restroom that a....
JUDGE HANKINSON: Right. 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.
All right. Any different -- any -- so I think we've covered all the issue. Anybody have any other issues they wish to raise?
MR. EVANS: Not as the ver -- the jury instructions, Your Honor.
JUDGE HANKINSON: Okay. Garcia.
MR. ZANGENEH: No, Judge.
JUDGE HANKINSON: Magbanua.
MS. KAWASS: No, Your Honor.
JUDGE HANKINSON: All right. There's a verdict instruction -- a verdict form. I took out reference to the enhancements on Ms. Magbanua's portion. Other than that, I don't know whether you got that. Did y'all get the revised verdict form?
MR. ZANGENEH: Yes, Judge.
JUDGE HANKINSON: It wasn't changed as to Mr. Garcia --
MR. ZANGENEH: Correct.
JUDGE HANKINSON: -- so I didn't send a new one on Garcia. But I sent a new one on Magbanua that took out the enhancement.
(off-the-record discussion. )
MR. EVANS: But, Your Honor, the -- I didn't have -- the State didn't have an issue with either verdict form. The latest verdict form that was sent on Magbanua looks acceptable to the State. And the original --
JUDGE HANKINSON: Say what?
MR. EVANS: The latest version -- I guess the second version, whenever you -- the one you're talking about now which removes the firearm question and stuff is acceptable to the State. And the one, 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.
JUDGE HANKINSON: Okay. All right. Garcia.
MR. ZANGENEH: No objection.
JUDGE HANKINSON: All right. I want to get these totally finalized this evening before we leave so I can go ahead and make copies. I'm not having to do that in the morning. I'll do it -- probably take us to about 30 minutes to have copies prepared. How do y'all want to do that? Do y'all want to reconvene in 20 or 30 minutes, or what would you prefer?
MR. ZANGENEH: Could you e-mail them to us, Judge?
JUDGE HANKINSON: We -- I can e-mail them to you, but what I want to get it resolved this afternoon, whether there's some issue with it, not be figuring it out in the morning. why don't we reconvene about 20 minutes. I'll have new copies for you. Okay?
MR. ZANGENEH: Yes, Judge.
MR. EVANS: Yes, Judge.
(Pause. )
MS. CAPPLEMAN: Judge, one other item. I've prepared a wire call disk, which is 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: I assume the defense in agreement?
MR. ZANGENEH: Yes, Judge.
JUDGE HANKINSON: Is y'all's objection...
MS. KAWASS: Yes. I have no objection for them putting that in so there's no confusion to the jury, Judge.
JUDGE HANKINSON: All right. And do you want the one with all the calls in evidence for appeal purposes or --
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: All right. So mark one -- we need to make sure which ones goes to the jury.
COURT CLERK: Okay.
JUDGE HANKINSON: we need to -- the new one needs to go to the jury. The other one needs to be for ID only --
COURT CLERK: Okay.
JUDGE HANKINSON: -- for purposes of review.
All right. About 20 minutes we'll be back.
(Brief recess.)
BAILIFF: Court's back in session.
JUDGE HANKINSON: Be seated, please, folks. I think I made the changes agreed upon. The only thing that I changed after I went back and read the weighing the evidence, I 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 there wasn't any evidence he was promised anything. But he wasn't prosecuted, so you could argue that was the grant of immunity. So, anyway, that's the only substantive change.
Other than that, on paragraph nine of weighing the evidence, I took out reference to the misdemeanor conviction. we haven't had testimony of misdemeanor conviction. I think, other than that, there was just the technical changes that had been agreed upon. Anybody found anything they've got a problem with?
MR. ZANGENEH: No, Judge. Not from Mr. Garcia.
JUDGE HANKINSON: All right. And the verdict form, y'all have looked over those? They're okay?
MR. ZANGENEH: Yes, Judge.
MR. EVANS: Yes, sir.
JUDGE HANKINSON: All right.
MS. KAWASS: No objection from Ms. Magbanua.
JUDGE HANKINSON: All right. So we will finalize them and make copies. we'll see y'all in the morning at 8:30.
MS. KAWASS: 8:30 tomorrow morning, Judge?
JUDGE HANKINSON: Yes.
MR. ZANGENEH: See you then.
JUDGE HANKINSON: All right.
(Court in recess; continued in Volume XII.)