1.Wendi Adelson — Fifth Amendment motion and subpoena ruling
65 linesPROCEEDINGS
JUDGE WHEELER: Good morning. Please be seated.
All right. Good morning to everyone. We're here this morning in the case of the State of Florida v. Katherine Magbanua, 2016CF3036, 2018CF497. Ms. Magbanua is present along with her counsel and the attorneys on behalf of the State.
All right. So, I have received the witness list, and so it looks like we have five witnesses on board for today. And so, Ms. Cappleman, how many do you think we'll get done with by our lunch hour this morning?
MS. CAPPLEMAN: I'm hoping to get through Mr. Lacasse by the lunch hour, Judge.
JUDGE WHEELER: Okay. And then just Mr. Rivera would be this afternoon?
MS. CAPPLEMAN: Yes, Sir.
JUDGE WHEELER: Okay.
MS. KAWASS: Your Honor?
JUDGE WHEELER: Yes.
MS. KAWASS: Because the State didn't let us -- they only let us know that they would be calling Ms. Adelson and Mr. Rivera today --
JUDGE WHEELER: Because the State did let you know?
MS. KAWASS: Did not let us know until this morning that Mr. Lacasse would be testifying today.
JUDGE WHEELER: Okay.
MS. KAWASS: I am handling Mr. Lacasse, and I did not bring my documents. So, I would need to return to the hotel to pick up my documents in order to properly cross-examine him. This is one of the issues we had, Judge, with them not telling us fully who is going to be called.
JUDGE WHEELER: All right. You're either going to need to send somebody or you're going to have to --
MS. KAWASS: I might have to, Judge.
JUDGE WHEELER: -- do it during a break, or whatever you need to do.
MS. KAWASS: On a break, if I could just -- I could probably send someone. I just have to be able to have her locate all them -- all the documents.
JUDGE WHEELER: well, it's the fourth witness. Just do what you have to do. I mean --
MS. KAWASS: All right. Thank you, Judge.
JUDGE WHEELER: You know, the State's not required to provide you with every bit of information. we knew that there were two other witnesses testifying today. So, just make sure that you get your documents and however you need to do it, and I'll depend on you. Okay?
MS. KAWASS: All right. Thank you, Judge.
JUDGE WHEELER: All right. Thank you.
All right. The first thing that I want to address is in regards to wendi Adelson and a nonparty motion that I received. And so is Mr. Lauro present?
MR. LAURO: Yes, Your Honor. Good morning.
JUDGE WHEELER: Okay. Mr. Lauro, good morning. Let's see. we don't have the podium in a good place at this point, but if you could just step right up to the podium. Good morning.
MR. LAURO: Yes, Your Honor. John Lauro, and with me is Ms. Adelson. Your Honor, as you know, Ms. Adelson has been subpoenaed by the State as well as the Defense. She, without a State subpoena, would unequivocally invoke her Fifth Amendment rights. we want to make that clear for the record. In light of Your Honor's prior rulings and direction, we wanted to put that on the record.
However, with respect to the State subpoena, it automatically confers use and derivative use immunity on her pursuant to Florida Statute 914.04. That use and immunity -- use and derivative use immunity would only apply to a State subpoena and not to a Defense subpoena.
So, in light of that, we would ask respectfully that the Court quash the Defendant's subpoena since there's no purpose and no appropriate purpose in calling a witness simply to invoke in front of the jury.
JUDGE WHEELER: Let me ask you this, Mr. Lauro: Any questions that are given to Ms. Adelson during -- if she was called with the Defense case, is she going to assert her Fifth Amendment rights to any question that's asked at that time?
MR. LAURO: Yes, Your Honor. I'm assuming any question would have to be relevant and germane to the matters in this case, and as a result, she would invoke as to those questions.
JUDGE WHEELER: All right. And so I'm just going to assert my previous ruling that I've made -- and I did restate it on the record yesterday -- is that she'll be required to testify under the State subpoena.
The cross-examination will be limited to whatever the State brings forth on direct; so that's what the cross-examination scope will be limited to. There's no piggybacking or bringing in any other information just because she's under the State subpoena. That's not going to be permissible.
And then she's not going to be permitted to be called as a witness -- now that we know that she's just going to assert her Fifth Amendment rights, she won't be called as a witness in the Defense case at this time.
MR. LAURO: Yes, Your Honor, that's exactly our understanding of the law.
JUDGE WHEELER: All right. Okay. Anything else for the Court?
MR. LAURO: No, sir.
JUDGE WHEELER: Okay. I'm going to ask that Ms. Adelson then please remain outside the courtroom because she's subject to the rule.
MR. LAURO: Yes.
JUDGE WHEELER: All right. Thank you.
MS. KAWASS: And, Your Honor, did you want -- are you going to allow Defense any argument in addition to what we put in our motions in limine? Because our position is right now that what is happening is our cross-examination ability, which was precisely -- in this case of Katherine Magbanua v. State of Florida that was issued by the First DCA on this direct issue warned about this exact thing happening, which is that -- and the Court even stated that it would be reversible error for our cross-examination to be limited because the State can tailor their direct examination to prohibit us from going into areas that could potentially be relevant.
JUDGE WHEELER: All right. Thank you, Ms. Kawass. we've gone through these arguments before. I think you'd made a record prior, and so I appreciate that. You further made your record, and so my ruling stands.
MS. KAWASS: I appreciate it. Thank you, Judge.
JUDGE WHEELER: All right. Thank you.
All right. And first witness will be Marcia Rodriguez. Okay. All right. So, anything else from the State before we bring the jury in, Ms. Cappleman? Ms. Dugan, is this your witness?
MS. DUGAN: No, sir, this is Ms. Cappleman's. But I did want to follow up with the Court with an issue that came up yesterday regarding whether portions of the Defendant's testimony might be brought --
JUDGE WHEELER: I did some research myself on that and --
MS. DUGAN: Yes, sir. And I brought some case law for the Court. I've provided it to the Defense. And I can give the Court a two-minute summary of this in an argument, or we can do that at a later time. we don't expect to try to elicit anything or play anything right now.
JUDGE WHEELER: Okay. If it becomes an issue again that's objected to, then I'll hear the argument at that time. I did do some research on my own in regards to the admissibility of her trial testimony from the earlier trial. And so based on how it's presented or if there are any other issues connected with that, then when it's presented as a particular issue, I'll make my ruling at that time.
MS. DUGAN: Yes, sir.
JUDGE WHEELER: Okay?
MS. DUGAN: would you like this or --
JUDGE WHEELER: I have enough at this point. All right. Thank you.
All right. Anything else from the State?
MS. CAPPLEMAN: NO, sir.
JUDGE WHEELER: Anything from the Defense?
MR. DECOSTE: Just a -- I guess they call this a housekeeping matter. Given the fact that Mr. Rivera is going to be testifying -- and I just want to give the Court as much notice -- if we can get some sort of secondary table, perhaps something like this, or if we can use this one for Mr. Rivera. There's just a lot of paperwork, all of those transcripts, and I'll be able to move a lot smoother if I have it laid out.
JUDGE WHEELER: Okay. You're asking -- do you want that up here by the podium when you have the podium up here? Is that what you're asking?
MR. DECOSTE: I'd put it next to me. I need something a little bit bigger than that. Your courtroom officer is pointing out -- if I could potentially use that from the State, it would work out great and it would move real smooth. I'd just have it next to me laid out with the computers, and we can move smoothly.
JUDGE WHEELER: Okay. So, I want to make sure what you're asking for. I don't know what you're pointing to over here.
MR. DECOSTE: This right here. If the State would let me use this table for the cross, I think that would clear up the issue.
MS. CAPPLEMAN: No objection.
JUDGE WHEELER: Okay. So, it can remain right there. And then you just want to set your items on that?
MR. DECOSTE: I'd wheel it right up here, put it next to me, lay out the transcripts.
JUDGE WHEELER: Well, there's some things -- I don't know what that is on it, and so I want to make sure that -- let's see if we can get something else that would be sufficient that gives us at least the square footage of what that table is that we can wheel in here.
BAILIFF: Yes, sir.
JUDGE WHEELER: we'll get something available to you. we'll make sure that it's in here by lunchtime for the -- for your use after that. Okay?
MR. DECOSTE: Thank you so much, Your Honor.
JUDGE WHEELER: All right. Anything else before we bring the jury in?
MS. CAPPLEMAN: Nothing from the State, Your Honor.
MR. DECOSTE: Nothing from the Defense. Thank you.
JUDGE WHEELER: All right. Thank you. Let's bring the jury in, please.
(Jury in courtroom.)