Charge Conference
178 linesMS. CAPPLEMAN: Mr. Evans is going to come down, Judge, but I'll stand in until he arrives.
JUDGE WHEELER: All right. And do you all Ms. Dugan, do we have the same technology that we have out in Gadsden where we can make changes to them right here?
MS. DUGAN: Yes, sir, I can make changes.
JUDGE WHEELER: Okay, can you do that? All right. Good morning.
MS. KAWASS: Good evening, Your Honor.
JUDGE WHEELER: Okay. Good afternoon. Good late afternoon. Late afternoon. All right. And so, Ms. Kawass, you're handling the instructions?
JUDGE WHEELER: All right, can we take a look at the jury instructions now? I think we can get through these pretty efficiently so that we can have them ready to go when we bring the jury back tomorrow. So who's going to handle this on behalf of the state?
MS. KAWASS: No, this one.
JUDGE WHEELER: All right.
MS. KAWASS: Your Honor, I just want to let you know it's very minor changes. A lot of it really just includes taking out some instructions that the state included. Thank you. I'm a stickler for mirroring the language from the Florida Supreme Court's standards.
JUDGE WHEELER: All right. I appreciate that. It's just relatively minor changes. What I'm going to do is, since the state submitted them to me, I'm going to take it as if they don't have any objection to them, and so I'll be going primarily to you to see as we work our way through this right now. And I have the copy that they provided to you, so I've been going based off of their copy and the minor changes that I wanted to have. We'll let Ms. Dugan bring them up, and then she can just make the changes there, and then we can get the appropriate copies made for tomorrow. You ready? Okay. The only thing that I see on the first page is just a minor change there's no space above "Justifiable Homicide" on my copy. If you could just make sure that's a space there. All right. And then also on the bottom I don't know what those are called on the bottom there but can you see underneath the page number it has Mr. Garcia still on there? So we need to take that out for the page number. Okay. So for the statement of charge, introduction to homicide, and the justifiable homicide instruction and the excusable homicide instruction those are standard instructions. Any discussion on those?
MS. KAWASS: Yes, Your Honor. I'm just like I said, I'm sticking with the Florida Supreme Court's guidance. So in the statement of the charge, I would just add "conspiracy to commit murder" and "solicitation to commit murder." It's just the addition of those words, instead of "conspiracy to commit murder and solicitation to commit murder."
JUDGE WHEELER: Right. All right, I'm in favor of that, so we'll just make that more specific.
MS. KAWASS: It's just more clarification for the jury.
MS. DUGAN: "Conspiracy to commit."
MS. DUGAN: "Solicitation to commit."
JUDGE WHEELER: "Conspiracy to commit murder" and "solicitation to commit murder." Just as I was charged in the information.
MS. KAWASS: Just to add those.
JUDGE WHEELER: I just want to make sure that our camera here is not getting any work product by looking at the back of these. Okay. Thank you.
MS. KAWASS: Thank you. Your Honor, as for the introduction to homicide, we would ask that the first three paragraphs be taken. The defense is waiving all lesser includeds in this case. We believe that based on the facts we've never disputed that a first-degree murder has been committed so we would be waiving all category-one lessers. We would ask that second-degree murder not be included, manslaughter not be included, any lessers of murder. We're not disputing that Dan Markel was premeditatedly murdered.
MR. EVANS: State is not waiving the lessers, Your Honor.
JUDGE WHEELER: All right, we're keeping the lessers. That's a standard instruction. So we're keeping in both the second degree and the manslaughter. Okay.
MS. KAWASS: Your Honor, we would we're not asserting justifiable homicide or excusable homicide. We would ask that those be taken out.
MR. EVANS: I think those are required to be read, Your Honor, and so we are requesting them.
JUDGE WHEELER: All right. I'm going to keep them both. It's a standard instruction that's given in every first-degree murder case, and so they will remain. All right, so now we go to count one, first-degree murder. Any discussion on that, Ms. Kawass?
MS. KAWASS: No, Your Honor, I have no objection to the where it says "count one, first-degree murder," I have no objection to the standard jury instruction. And then the standard instruction with the lesser included crimes I understand that you have an objection to including them, but that's the standard instruction if we are.
JUDGE WHEELER: Okay. All right, and then second-degree murder, any discussion on that?
MS. KAWASS: No, Your Honor.
JUDGE WHEELER: Okay. Okay, and any discussion on the manslaughter?
MS. KAWASS: No, Your Honor.
JUDGE WHEELER: All right, thank you. Okay. The principals instruction any discussion on the principals instruction?
MS. KAWASS: Your Honor, I know that it was probably just put in there just to facilitate everything for the jury, but the way it starts, "There are two ways in which a person may be a principal" is not in the standard jury instruction.
MS. KAWASS: We would just ask that it read "principals," and then that language is taken out, and it starts with "if the defendant helps another person," which is the standard language. I do know that it says "if the defendant helps another person or persons commit a crime." It says "that defendant." I don't know if that's maybe just because Ms. Magbanua was tried with Mr. Garcia the last time. The standard language says "the defendant," not "that defendant."
MS. KAWASS: I know I'm being particular, but I'm just like I said, you know, that's whenever it's clear, that's I don't have any problem. Right? And then the rest of the paragraph is fine. And then it says the first, number one it says "that defendant." I would just ask that be changed to "the defendant." And the same for paragraph two. So instead of "that defendant," it says "the defendant."
JUDGE WHEELER: All right.
MS. KAWASS: The language otherwise is from its standard.
JUDGE WHEELER: Okay. All right. So "there are two ways in which a person may be a principal" is not in the standard instruction?
MS. KAWASS: No, Your Honor, because the standards are differentiated between 3—I think it's 3.8 for principals. The second one would be "principals," and then it says "when active participant hired by defendant." That would be the second principal instruction.
JUDGE WHEELER: Mr. Evans?
MR. EVANS: Your Honor, the reason it was being requested for both or this line was inserted the last time and it needs to be inserted this time is because there's two ways to prove principals. One is the first paragraph, or the first one, that goes through "if the defendant helped another person" and goes through one and two.
JUDGE WHEELER: I think it's repetitive. I don't think we need it. I mean, if you read it all in its entirety, you can tell that's what the jury instruction says that there's two ways. So we're going to take that out, Ms. Dugan. And then if you could change that on that first line to "the." And then also with one and two, change that to "the." If you have any question about what I'm saying, then let me know. Okay. And then on the next way to be a principal, where it's one, two, three on the first, on number one we'll need to change that to "the." And also, I believe in the initial paragraph I have it here as an addition, I think it might have been inadvertently left out it just says "defendant" instead of "the defendant."
MS. KAWASS: And, Your Honor, I'd just like to note for the record that the first line of that paragraph, where it says "the defendant may also be a principal if he or she," is not standard language. The standard language just starts with "if the defendant paid or promised to pay another or other person." That's all the standard reads.
JUDGE WHEELER: All right.
MR. EVANS: The main was instructed for the same reason the first line was instructed to differentiate. There are two ways to prove principle, which is the first part, which would be 3.5(a), I believe. Yep, 3.5(a). And the second part is the second way you can prove a person is the principal of 3.5(b), which is where it starts "the defendant paid or promised" is what it says. But the reason that line the first part of that line was inserted, it was started last time, was—
JUDGE WHEELER: I don't care if it was certain last time. I don't need to hear that. Is it in the standard instruction?
MR. EVANS: It is not standard instruction.
JUDGE WHEELER: I don't want it. I don't want it. "The defendant may also be a principal" is struck, and so it'll start with "if" "if the defendant."
MS. KAWASS: Right. And, Your Honor, I'd just like to note in element one, it says "that defendant" again, instead of "the."
MR. EVANS: And, Your Honor, for the record, the reason the state has made this and is requesting is objecting to removal of it is it needs to be clear to the jury that there are two ways to prove the defendant may be a principal. One is under 3.5(a), the other is under 3.5(b), and the way it's being worded now does not make it clear to the jury that distinction that there are two different ways.
MS. KAWASS: Your Honor, if I may respond? I believe that how that could be clarified is where you have "principals," which is how the 3.5(a) is titled "principals." 3.5(b) is actually titled "principals when active participant hired by defendant."
MS. KAWASS: I would ask that that title be included before the second one so that the jury is well aware that there are two different ways that principals can be approved.
MR. EVANS: Would not have any objection to that, Your Honor, because then it clearly makes the distinction.
MS. KAWASS: I agree with the state, Your Honor. I don't want to come—
JUDGE WHEELER: All right, we'll make that change then.
MS. KAWASS: It would look like this. So it would just be the title of the actual 3.5(b). So take out this language here that says "the defendant may also." Right. And then so that would be capital. And then you can add in this title, which says "principals when active participant," because I understand that the state wants to differentiate the two. So it would be that title but with a hyphen right before the second one.
MS. KAWASS: I don't want to include in the standard I know it's repetitive but after both principals, it says "to be a principal the defendant does not have to be presently" I don't know if you want—
JUDGE WHEELER: Okay, hold on. To say we if we need to get this on the record.
MS. KAWASS: If the court agrees that we should have them differentiated by title, under the first principals instruction the standard language and it's repetitive to both principals, but I want to make sure that it's clear to the jury for both after the second element on the first principals, there should be language that reads "to be a principal, the defendant does not have to be present when the crime is committed." That language is read for both principals instructions, so it will be repetitive, but since we're delineating them into two different types of principals, I'm sure the state would agree that that line—
JUDGE WHEELER: All right. Mr. Evans, is that a distinction is that a good enough distinction for the state?
MR. EVANS: Yes. Well, since we're breaking the two of them out, they should read and put them under different. They should read as the standard instructions read. It does include that line, so we have no objection to it.
JUDGE WHEELER: All right. Thank you.
MS. KAWASS: Everything's fine. The only thing that's changed is in red.
MS. DUGAN: Yeah, I know. I'm looking right here now.
MS. KAWASS: Okay. Sorry. Oh, and Your Honor, in paragraph two on the 3.5(b), which is when active participant I would request that it cross out "he or," because it reads "he or she," but in this case Ms. Magbanua is it's just Ms. Magbanua alone.
MR. EVANS: That's acceptable.
JUDGE WHEELER: All right.
MS. KAWASS: Yes, please. Yeah, that line needs to be put in right above.
MS. DUGAN: Huh?
MS. KAWASS: Oh, yeah, all the yeah. In both paragraphs this line has to be—
MS. DUGAN: Oh, we have it in this one. Yeah.
MS. KAWASS: In both paragraphs, it'll just say "if she," right? Okay.
MS. DUGAN: So I'm just going to copy and—
MS. KAWASS: Well, yes, that needs to. And then in both paragraphs. Oh, right in here at the top, "if she," as "if she." So right here just cross out "he or," because I remember last time Mr. Garcia was sitting—
JUDGE WHEELER: Okay. Right. All right, just look over that real quick.
MS. DUGAN: Do you want to come over here?
MS. KAWASS: Yeah, here. I've just made my changes in order. So, the and then "the defendant," "the defendant," and then the language, the standard. Right. And then start with "the defendant," right? The, da-da-da. "The person to whom" — oh, this wasn't a separate line.
MS. KAWASS: Your Honor, in the 3.5(b), the active participant — in the state's version it's broken into two separate sentences. Actually, just one sentence, so it says, "If the defendant paid or promised to pay another person or persons to commit a crime, comma, the defendant is a principal and must be treated..." They have it as two separate sentences. So I would just ask, if the state has no objection —
MR. EVANS: No objection.
MS. KAWASS: To read it as one fluid sentence.
JUDGE WHEELER: All right.
JUDGE WHEELER: The change has been made?
MR. EVANS: Yes.
JUDGE WHEELER: Okay. All right. So now we're to independent act.
MS. KAWASS: Your Honor, we were asking to remove that instruction. I did some case law, and I found case law that says that when the defendant's theory at trial is supported by the testimony at trial from the defendant — that they're denying any involvement — it negates the propriety of an independent act instruction. And I could put the case site on the record.
JUDGE WHEELER: All right. Mr. Evans, any objection?
MR. EVANS: No objection. We put it last time at one of the defendant's requiest.
MS. KAWASS: I think it was Mr. Garcia.
JUDGE WHEELER: Okay, so we'll take out independent act.
JUDGE WHEELER: Count two for conspiracy. Any discussion?
MS. KAWASS: Your Honor, the only language that's not standard is the first line that says, "In count two, Katherine D. Magbanua, the defendant in this case, has been accused of the crime of conspiracy to commit first-degree murder." That's the only language that's not standard. I mean, I don't know — it's just the introductory line.
JUDGE WHEELER: We'll keep that in. Okay, so everything else is standard, you're okay with it?
MS. KAWASS: Yes.
JUDGE WHEELER: Okay. Ms. Dugan, you're all caught up — there's no changes?
MS. DUGAN: No changes.
JUDGE WHEELER: Okay. All right. Count three, solicitation — it has the same introductory line, right? And then any other discussion?
MS. KAWASS: Yes, Your Honor. The amended information for the solicitation count actually lists who the one or more persons were. So I would ask that it track the language of the information. We would take out "the defendant solicited one or more persons" and put in "the defendant solicited Luis Rivera and/or Sigfredo Garcia," because that's how it's charged in the information.
JUDGE WHEELER: Do you have any objection, or do you have discussion on that, Mr. Evans? Do you want me to pull up the information? So they want the specific names of —
MS. KAWASS: Yes, that would be exactly — and that's exactly how it's worded in the information, Your Honor.
JUDGE WHEELER: All right, so "the defendant solicited Luis Rivera and/or Sigfredo Garcia." All right, that's how it's charged in the information. And that would also go for the second element.
MS. KAWASS: "And/or," yes. "And/or" — I hate that language in jury instructions, but that's how it's charged. In "Sigfredo Garcia," right.
MS. KAWASS: And that would also go for element two, Your Honor, where instead of "one or more persons," it would say "Luis Rivera and —"
JUDGE WHEELER: All right. You see that, Ms. Dugan?
MS. DUGAN: Yeah.
JUDGE WHEELER: Okay. Let me know when you're ready.
MR. EVANS: Okay.
JUDGE WHEELER: Plea of not guilty, reasonable doubt, and burden of proof — is the standard instruction. Any discussion on that?
MS. KAWASS: Like I said, Your Honor, I don't mean to be a stickler. I just like to track the language.
MS. KAWASS: It says, "to overcome the defendant's presumption of —" in a sense, the state has a burden of proving. The standard instruction doesn't pluralize "crimes" — it just says "crime with which the defendant is charged was committed and the defendant is the person who committed the crime." It's just — it's mere semantics. I mean, I doubt whether it says "crimes" or "was" or "were" or "individual" or "person" really has an effect on the jurors. I'm just a very big stickler for tracking language from instructions.
JUDGE WHEELER: All right, so do we want that in plural then, since there's — three? Two? — crimes charged. All right. "And the defendant is the individual who —" so then it needs to be consistent. With the last crime on that paragraph, "has the burden of proving the crimes with which the defendant is charged were committed and the defendant is the individual who committed the crimes." Got it. All right, then we go to weighing the evidence.
MS. KAWASS: Judge, everything is exactly as worded. I would just ask that the tenth factor be considered, which was, "does the witness have a general reputation for dishonesty?" And I would be pointing to Mr. Rivera.
MR. EVANS: I don't — I don't know if reputation evidence was admitted in this.
MS. KAWASS: Yeah, I said — well, Garcia and Rivera, of several witnesses, Your Honor, were asked about Mr. Rivera's reputation, was he known as a Latin King member, um, which I would —
JUDGE WHEELER: All right, out of an abundance of caution we'll put that back in. And Ms. Adelson, of course. Do you know that language, Ms. Dugan?
MS. DUGAN: Yes.
JUDGE WHEELER: So let's see —
JUDGE WHEELER: All right, so we're adding number 10.
MS. KAWASS: The rest of that instruction is perfectly fine.
JUDGE WHEELER: Okay. We keep in law enforcement. We keep in expert witness
MS. KAWASS: One through ten. The nine that they included was — we're properly included.
JUDGE WHEELER: Right. I'm moving down from that. So, burden of proof instruction, law enforcement instruction, expert witness instruction.
JUDGE WHEELER: We keep in the paragraph in regards to immunity. So now we're — you're going to be caught up. Okay, now we will keep in "the defendant has become a witness," so we can take off the shading off of that and keep in the next two paragraphs, and then take out "defendant not testifying." Okay. Defendant's statements —
MS. KAWASS: From the research I've done, the language of the instruction talks about whether a statement was made knowingly, voluntarily, and freely made. It seems to deal with statements of the defendants that were made to police — like a confession, anything of that sort. And there's no evidence that Ms. Magbanua has given a formal statement to the police.
JUDGE WHEELER: Any discussion from the state?
MR. EVANS: We don't have any objection to taking it out. It's just usually a standard one — anytime any —
JUDGE WHEELER: All right, we'll take out defendant's statements. And rules for deliberation — we keep in all of those except for number seven.
MS. KAWASS: Yes, that's what I was gonna say — I don't believe that that was applicable.
JUDGE WHEELER: Let me know when you're ready. Okay. And then so we'll have, uh, renumbered to just seven of those. Cautionary instruction and single-defendant-multiple-counts —
MS. KAWASS: No objection.
JUDGE WHEELER: All right, thank you. Uh, I'll need a verdict form. So, have you — did you send that to me? I didn't get one. All right, if you could send me one in the morning, then we'll go over that in the morning. And then submitting the case to the jury, uh —
MS. KAWASS: Your Honor, of course, I just have to lay the record for the verdict instruction. I would of course object to the inclusion of any language that deals with lesser included based on my prior objection, but it's on Your Honor's ruling.
JUDGE WHEELER: All right, you can put that on the record when I show you the verdict form. Okay. Also, so submitting the case to the jury — uh, anything in regards to that?
MS. KAWASS: Your Honor, there was one line that was left out from the standard, which is in the second paragraph — which would be the second sentence after "our present in the jury room." The language that was left out was, "if a juror goes to the restroom, the deliberation should stop until the juror returns." That's the only discrepancy I saw with the standard.
JUDGE WHEELER: What number is that instruction? Do you know?
MS. KAWASS: There were no numbers.
JUDGE WHEELER: It it, let's see...
JUDGE WHEELER: Oh, I get it. Guessed well. Okay. It's 13.
JUDGE WHEELER: Yeah. So there's one sentence —
MS. KAWASS: The second sentence — it says something about the restrooms. "If a juror goes to the restroom, the deliberation should stop until the juror returns."
JUDGE WHEELER: "If juror goes to the restroom, comma, the deliberation should stop until the juror returns."
MS. KAWASS: That's the only line that I saw that was not present.
JUDGE WHEELER: All right, we'll include that. All right, I think that we're set, then. The last paragraph —
MS. KAWASS: It says, "during the trial items are received into evidence, you may examine what of exhibits you think will help in your deliberations." The standard language gives two options — either (a) "these exhibits will be sent into the jury room with you when you begin to deliberate," or (b) "if you wish to see any exhibits, please request that in writing." I didn't see any language that said "the exhibits will be delivered to you shortly," so I'm not sure if Your Honor wants to select (a) or (b).
MR. EVANS: We're fine with — whichever one the court would prefer to keep in.
JUDGE WHEELER: Uh, let's see. "The exhibits will be delivered to you" — all right, so, "the exhibits will be sent into the jury room with you when you begin to deliberate" is appropriate.
MS. KAWASS: Yes, I left that up to Your Honor. I didn't know if you'd want them to request it before they see, or if you would just send everything back. And so either one would be fine with the defense.
JUDGE WHEELER: Well, they have the capability to view video and audio back in the jury room — in this jury room, I believe. I checked on that. What about this special equipment, though? If they want to hear Dolce Vita or the wiretap calls, they might have to come back in here.
MS. DUGAN: Maybe none of us could be in here, and if it just comes — I don't know.
MS. KAWASS: Judge, I would object if you wanted to add an extra — especially for the Dolce Vita video. So you'd say, "if you wish to see," I mean, that particular exhibit, because I really don't know how they would get this.
JUDGE WHEELER: Okay, this is what we can say. Let's take out "the exhibits will be delivered to you shortly," we'll put in, "These exhibits will be sent into the jury room with you when you begin to deliberate," and then we're going to add another sentence.
JUDGE WHEELER: I don't know if that mic is going to operate at the moment, but I'm not sure.
JUDGE WHEELER: Let me know when you're ready with that.
MS. DUGAN: Got it.
JUDGE WHEELER: Okay. "If you wish to use the audio headphones provided in the courtroom, please request that in writing." Any objection from the defense?
MS. KAWASS: I just like to say — I had all the intentions of removing the lesser-includeds, so I'm going to be honest to the court: I didn't really look through the lesser-included because we had been asking. So I'm gonna go and look through them tonight. I'm sure they're standard, but if I do see anything, I would be happy to contact the state and just to let Your Honor know. But I'm sure they're standard.
JUDGE WHEELER: All right, you can have discussions and then just let me know in the morning. But we'll go with this as the final form unless you have any discussion to change that. Right, okay. And then — so, Ms. Dugan, you have that. If you could, when you get back to your office, ask somebody to print that out. And can you make the copies?
MS. DUGAN: Yes, sir.
JUDGE WHEELER: All right, we'll make 25.
JUDGE WHEELER: All right, are we all set?
MS. DUGAN: Yes, sir. I'm gonna email these to everybody, if that's okay, just in case there's anything else.
JUDGE WHEELER: Right. All right, they're coming as an email to everyone.
JUDGE WHEELER: All right. We're all set then with the charge conference. And so tomorrow morning we'll meet back here. We've been starting promptly at 8:45. We'll have the jury instructions ready to go. Read the jury instructions.
JUDGE WHEELER: We'll go right into closing.
JUDGE WHEELER: All right. For the state, Ms. Dugan, who's doing closing for you? Ms. Cappleman?
MS. DUGAN: Yes, sir.
JUDGE WHEELER: She's not here? Okay. And what about for the defense? Ms. Kawass? All right. So I want to get them into the jury room by lunchtime. These jury instructions aren't going to take that long to read, so we're going to be starting at approximately 9 o'clock. All right, so do you think 90 minutes is sufficient for you?
MS. KAWASS: All right.
JUDGE WHEELER: All right, so I'm going to hold you to that.
MS. KAWASS: Okay, I won't talk too fast, I promise.
JUDGE WHEELER: All right. And so if Ms. Cappleman can get the same message, and then, as I stated to the jury, then I'll excuse the alternates. We'll send them back to start deliberating at that time, and I'm going to provide them lunch, and then I'm going to tell them, now the time is in your hands in regards to that.
JUDGE WHEELER: Okay?
MS. DUGAN: Just to be clear, Your Honor, the 90 minutes — she can divide up however she chooses.
JUDGE WHEELER: She can, yeah, however she chooses. We don't have time.
JUDGE WHEELER: Okay?
JUDGE WHEELER: All right. Anything else before we break for the evening? From the defense?
MS. KAWASS: Not from the defense.
JUDGE WHEELER: From the state?
MS. CAPPLEMAN: Nothing from the State.
JUDGE WHEELER: All right, thank you. All right, we're in recess till tomorrow. Thank you.