IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO. CTC01-00101MMANO-E STATE OF FLORIDA ) ) V. ) VOLUME I ) JESSE PRINCE, ) ) Defendant. ) ) 컴컴컴컴컴컴컴컴컴컴컴컴컴�) PROCEEDINGS: Jury Trial BEFORE: Honorable Michael F. Andrews Judge of the County Court DATE: May 23, 2001 PLACE: Division E Criminal Justice Center 14250 49th Street North Clearwater, FL 34620 REPORTED BY: Jennifer Fleischer, RPR Notary Public - State of Florida 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� KANABAY COURT REPORTERS TAMPA AIRPORT MARRIOTT HOTEL (727) 224-9500 ST. PETERSBURG - CLEARWATER (727) 821-3320 KANABAY COURT REPORTERS 2 1 APPEARANCES: Lydia Wardell, Esquire Criminal Justice Center 2 14250 49th Street North Clearwater, FL 34620 3 Assistant State Attorney 4 Denis DeVlaming, Esquire 1101 Turner Street 5 Clearwater, FL 34616 Attorney for the Defendant 6 Paul Johnson, Esquire 7 101 South Franklin Street Suite 101 8 Tampa, FL 33602 9 Helena Kobrin, Esquire 1100 Cleveland Street 10 Suite 900 Clearwater, FL 33755 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 3 1 INDEX 2 VOLUME I PAGE LINE 3 PRETRIAL MOTIONS . . . . . . . . . . 6 6 4 VOIR DIRE EXAMINATION . . . . . . . . 15 1 5 PRELIMINARY INSTRUCTIONS . . . . . . 145 25 6 OPENING STATEMENTS . . . . . . . . . 159 1 7 VOLUME II 8 STATE'S WITNESS: HOWARD CROSBY Direct Examination . . . . . . . 188 14 9 Cross-Examination . . . . . . . .220 23 Redirect Examination . . . . . 240 21 10 Recross Examination . . . . . . 248 22 11 STATE'S WITNESS: MICHAEL BRUNO Direct Examination. . . .. . . 251 3 12 Cross-Examination . . . . . . . 265 12 Redirect Examination . . . . . . 273 22 13 STATE'S WITNESS: STACY MACE 14 Direct Examination . . . . . . . 276 8 Cross-Examination . . . . . . . 282 9 15 STATE RESTS . . . . . . . . . . . . . 283 8 16 MOTION FOR JUDGMENT OF ACQUITTAL . . . 286 24 17 DEFENSE WITNESS: BARRY GASTON 18 Direct Examination . . . . . . . 312 2 Cross-Examination . . . . . . . 342 8 19 Redirect Examination . . . . . 369 5 Recross Examination . . . . . . 370 7 20 VOLUME III 21 DEFENSE WITNESS: BRIAN RAFTERY 22 Direct Examination . . . . . . . 381 1 23 DEFENSE WITNESS: JOSEPH FABRIZIO Direct Examination . . . . . . . 399 9 24 25 KANABAY COURT REPORTERS 4 1 INDEX CONTINUED 2 VOLUME IV PAGE LINE 3 DEFENSE WITNESS: FRANK OLIVER Direct Examination . . . . . . . 436 3 4 Cross-Examination . . . . . . . 465 5 Redirect Examination . . . . . . 477 22 5 PROFFERED TESTIMONY: DENEEN PHILLIPS 6 Direct Examination . . . . . . . 469 21 Cross-Examination . . . . . . . 525 5 7 JURY CHARGE CONFERENCE: . . . . . . . 528 13 8 DEFENSE RESTS . . . . . . . . . . . . 559 8 9 STATE'S REBUTTAL WITNESS: DENEEN PHILLIPS 10 Direct Examination . . . . . . . 560 1 Cross-Examination . . . . . . . 594 3 11 Redirect Examination . . . . . 608 5 12 STATE'S RESTS: . . . . . . . . . . . . 613 13 13 MOTION FOR JUDGMENT OF ACQUITTAL . . . 613 19 14 VOLUME V 15 STATE'S CLOSING REMARKS . . . . . . . 622 22 16 DEFENSE CLOSING REMARKS . . . . . . . 637 22 17 STATE'S REBUTTAL REMARKS . . . . . .. 647 8 18 JURY INSTRUCTIONS . . . . . . . . . . 661 12 19 ALLEN CHARGE . . . . . . . . . . . . 692 8 20 VERDICT . . . . . . . . . . . . . . . 696 22 21 22 23 24 25 KANABAY COURT REPORTERS 5 1 EXHIBITS 2 3 STATE'S EXHIBITS RECEIVED PAGE LINE 4 STATE'S NO. 1 - Investigative 195 15 Assistance Agreement 5 STATE'S NO. 2 - Marijuana Sent To 264 15 6 The Laboratory 7 STATE'S NO. 3 - Photographs 261 4 8 STATE'S NO. 4 - Photographs 261 4 9 STATE'S NO. 5 - Photographs 259 22 10 STATE'S NO. 6 - Photographs 259 22 11 STATE'S NO. 9 - Marijuana Plant 263 18 12 13 DEFENSE EXHIBITS RECEIVED PAGE LINE 14 DEFENSE NO. 1 - Black Flower Pot 195 16 15 DEFENSE NO. 2(A-I) - Photographs 410 7 16 DEFENSE NO. 3 - Pot With Dead 410 16 Root System 17 DEFENSE NO. 5 - Videotape 393 2 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 6 1 P-R-O-C-E-E-D-I-N-G-S 2 THE COURT: All right. We shall take a 3 ten-minute recess and you all should bring 4 the jury in. 5 MS. WARDELL: Judge? 6 THE COURT: Are there motions? I'm 7 sorry. 8 MR. DEVLAMING: Well -- 9 MS. WARDELL: I had a couple issues. 10 Number one, I was going to ask the Court if 11 you were going to address pretrial publicity 12 in light of today's article and Saturday's? 13 THE COURT: There was an article today? 14 MS. WARDELL: Yes, Tampa Tribune. It's 15 pretty detailed, and it actually gets into 16 some deposition statements. 17 THE COURT: I have not seen any 18 articles. 19 MS. WARDELL: I can get it off the 20 computer and bring it back if you want to 21 see it. I didn't know -- 22 THE COURT: I would like to see the 23 article. 24 MS. WARDELL: -- if you wanted to leave 25 it up to us to cover it or if you had KANABAY COURT REPORTERS 7 1 intended to cover it and maybe separate 2 those that read it. So I was just hoping to 3 get some guidance from the Court on that 4 issue. 5 MR. DEVLAMING: Before we leave that, I 6 didn't either, Judge. Maybe it's a 7 regional -- 8 THE COURT: I believe it is probably 9 regional, because I have a north county 10 paper, and I've looked -- and I actually 11 specifically looked for an article, and I 12 did not find one. 13 MS. WARDELL: I'll bring it to you 14 because I checked for that very purpose. 15 THE COURT: Are you going to be asking 16 for a separation in individual, or at least 17 if not individual then regional lines, so to 18 speak, jury voir dire relating to that. 19 MR. DEVLAMING: I'm not, and I don't 20 know what Miss Wardell cares to do. I 21 usually like the Court to handle that 22 initially, and then if it's something that 23 we need to individually go through -- I'm 24 not going to ask for -- 25 MS. WARDELL: Judge, it was much, much, KANABAY COURT REPORTERS 8 1 more detailed than Saturday's. 2 THE COURT: Saturday's I saw which was 3 not very detailed. 4 MS. WARDELL: This is much more 5 detailed. And, number two, the Defense has 6 listed a witness. His name is Frank Oliver. 7 I haven't brought this up prior. Mr. 8 Oliver's in Miami, and we were going to do 9 his depo but we got running so late that 10 date that we did him, we ended up agreeing 11 that I wouldn't do his depo. 12 I read his prior testimony that he gave in 13 a case in Division E about a year and a half 14 ago, and Mr. DeVlaming represents that if he's 15 allowed to testify it is going to be similar 16 testimony. 17 My position, so as not to surprise the 18 Court, is that I think that if it gets to that 19 point, that Mr. Oliver should have to proffer 20 his testimony. I want to voir dire him on his 21 qualifications and things of that nature and 22 then have your Honor rule whether or not that 23 testimony is admissible. 24 THE COURT: Is Mr. Oliver apparently 25 some sort of an expert? KANABAY COURT REPORTERS 9 1 MS. WARDELL: He wants -- he wants to 2 testify about all the fair game things that 3 you've heard about. 4 THE COURT: Okay. We'll cross the 5 bridge when we get to it. 6 MS. WARDELL: I was hoping to do the 7 proffer before he was allowed to testify. 8 THE COURT: Okay. 9 MR. DEVLAMING: Before we leave that, 10 Judge, that's correct. And I told 11 Miss Wardell I will not mention that in 12 opening statements. However, and I know 13 that we've given the Court an awful lot 14 already on this case to read, what might be 15 helpful, since Mr. Oliver won't go on until 16 tomorrow, is if you want to give the Court a 17 little jump-start on what I have given you, 18 in other words, what he testified to at last 19 trial, that will be the parameters of it. 20 It might be some help to the Court. 21 THE COURT: I'd be happy to read it. 22 MS. WARDELL: Well, I prefer to hear 23 what he is going say this time because 24 obviously the last time it went to that 25 defendant and how that defendant was caught KANABAY COURT REPORTERS 10 1 up in fair game, if you will, and I would 2 like the Court to have it fresh, no taint if 3 you will, of what this guy's going to say. 4 MR. DEVLAMING: Judge, that's fine. 5 THE COURT: However you all wish to 6 handle this is fine with me, and we can 7 cross the bridge when we get to it. 8 MS. WARDELL: Okay. And, thirdly, 9 Judge, Ms. Kobrin had an issue she'd like to 10 raise. 11 THE COURT: Ms. Kobrin? I'm sorry. Is 12 it Kobirn or Kobert? 13 MS. KOBRIN: Kobrin. 14 THE COURT: Kobrin. Okay. 15 MS. KOBRIN: Your Honor, the issue that 16 I had mentioned to Miss Wardell, 17 Mr. DeVlaming handed me a subpoena the other 18 day on Mr. Fabrizio, and we're willing to 19 make him available to appear. I just wanted 20 to raise the issue that this subpoena is not 21 signed, it's not sealed, it's not a 22 subpoena. It's just a draft of a subpoena. 23 THE COURT: Do you wish to respond to 24 that? 25 MR. DEVLAMING: Well, I mean, her KANABAY COURT REPORTERS 11 1 caveat is fine with me. She just said she 2 would have him here, so -- 3 THE COURT: As long as you're willing 4 to produce him -- 5 MS. COBRIN: I just wanted to raise the 6 issue that what was given to me was not a -- 7 I didn't look at it at the time, but it's 8 not an actual subpoena. 9 THE COURT: But you will have him here, 10 will you not? 11 MS. COBRIN: We don't want to, you 12 know, cause a problem, and I don't know if 13 perhaps you should issue another one, but -- 14 THE COURT: Well, yeah, I don't know 15 that it's going to be required or, rather, 16 necessary for him to issue another one if 17 you are at this time as an officer of the 18 court saying you will produce him. 19 MS. KOBRIN: I will produce him. I 20 just wanted to put on the record that this 21 subpoena was not -- for whatever reason, it 22 was not signed and sealed. 23 THE COURT: Okay. Thank you, ma'am? 24 MR. DEVLAMING: Just so as a courtesy 25 to Mr. Johnson too, he is apparently on KANABAY COURT REPORTERS 12 1 vacation in Long Boat Key or something. I 2 told him he did not have to produce either 3 one of the witnesses that were subpoenaed in 4 this case until one. I hope that's all 5 right with you Miss Wardell. 6 I didn't think Miss Wardell had intended to 7 call Mr. Gaston, Mr. Raftery or Mr. Fabrizio, so 8 I took it upon myself, since I am the one that's 9 going to call him, to say one o'clock. Is that 10 all right? 11 MS. WARDELL: Whatever the Court -- 12 MR. DEVLAMING: No. But I mean -- 13 THE COURT: Do you need him before one? 14 MS. WARDELL: Well, I don't know how 15 the time table is going to go but, right, if 16 now you're asking me do I need him, the 17 answer is no. But you know -- 18 THE COURT: Okay. The point 19 Mr. DeVlaming is making is that he didn't 20 anticipate you would call them, and he had 21 given them permission to not come here until 22 at least one o'clock today. 23 MS. WARDELL: That's fine. 24 THE COURT: Okay. 25 MR. DEVLAMING: Thank you. KANABAY COURT REPORTERS 13 1 THE COURT: Any other matters I need to 2 address? 3 MR. DEVLAMING: No, sir. 4 MS. WARDELL: I'll bring the article 5 up, though. 6 MR. DEVLAMING: Oh, actually there is 7 one other matter. I'm sorry. Your Honor, 8 you received a communication from 9 Mr. Bunker, who is this gentleman here with 10 the beard, about the ability to -- 11 THE COURT: -- videotape. 12 MR. DEVLAMING: Yeah, videotape. I 13 understand the media is here. What 14 Mr. Bunker would like to do since the media 15 is not going to cover full gavel to gavel, 16 is to go downstairs where he will not be, 17 you know, in the courtroom, and if there is 18 a feed from these stationary cameras, to be 19 able to use those for his documentary work. 20 THE COURT: What Mr. Bunker needs to 21 understand is that in my courtroom only one 22 camera works and it focuses on me the entire 23 time. That's not going to help him. 24 MR. DEVLAMING: No, it -- is that 25 right, Judge? None of them -- KANABAY COURT REPORTERS 14 1 THE COURT: That's a fact. The only 2 one that's going to ever work is that one 3 sitting there, and it focuses on me the 4 entire time and I understand that I don't 5 show up very well on it for obvious reasons. 6 MR. DEVLAMING: Judge, then could I ask 7 whether or not he would be able to be as 8 nonintrusive as is Chanel 13 and go over on 9 this side of the courtroom? 10 THE COURT: I've already spoken with 11 Mr. Bunker as it relates particularly to 12 that, and I am uninclined to assist him 13 today. 14 MR. DEVLAMING: Okay. So the only 15 thing would be the media room on the court? 16 THE COURT: Yes. 17 MR. DEVLAMING: Okay. Thank you. 18 Might I step down now? 19 MS. WARDELL: Yes. And do you want me 20 to just have the bailiff run you back the 21 article when they get it? 22 THE COURT: Please. We shall take 23 fifteen. 24 (A RECESS WAS HAD) 25 (THE JURY PANEL WAS DULY SWORN) KANABAY COURT REPORTERS 15 1 VOIR DIRE EXAMINATION 2 THE COURT: Please have a seat. Good 3 morning. 4 THE PROSPECTIVE JURORS: Good morning. 5 THE COURT: I'm Judge Andrews, and I'll 6 be presiding over this case today. This is 7 a criminal case. And the defendant in this 8 case, Mr. Prince, is charged with the 9 offense of possession of marijuana. 10 You all approach the bench one moment, 11 please. 12 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 13 THE COURT: Do you want me to read this 14 one? I'll read it. 15 MS. WARDELL: It's handwritten on -- 16 THE COURT: -- May 7 through August 6. 17 MR. DEVLAMING: And/or. Not through 18 there, and/ors. 19 THE COURT: May 7th and/or August 6th 20 and/or August 11, 2000? 21 MS. WARDELL: Right. 22 THE COURT: Thank you. 23 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 24 THE COURT: Mr. Prince is charged with 25 possession of marijuana. And again, this is KANABAY COURT REPORTERS 16 1 a criminal case. And I will read to you the 2 charging document in this case. It's called 3 an information. It reads as follows: 4 The State of Florida versus 5 Jesse Prince Jr,. 6 it says Bernie McCabe, State Attorney for 7 the Sixth Judicial Circuit of Florida, in and 8 for Pinellas County, prosecuting for the State 9 of Florida, in said County, under oath. The 10 information makes that Jesse Prince, Jr., in the 11 County of Pinellas and State of Florida on 12 May 7th and/or August 6th -- May 7, 2000, and/or 13 August 6, 2000, and/or August 11, 2000, in the 14 County and State aforesaid, did unlawfully 15 possess and have in his control a certain 16 controlled substance, to wit: Cannabis, 17 commonly known as marijuana, which contains less 18 than 20 grams of cannabis; contrary to Chapter 19 893.13, Florida Statutes, and against the peace 20 and dignity of the State of Florida. 21 That is the offense that the defendant is 22 charged with here today. 23 Now, what we're going to be doing is trying 24 to pick a jury of about seven people -- it will 25 be seven people -- to sit and be fair and KANABAY COURT REPORTERS 17 1 impartial jurors here today, and we're going to 2 be asking you questions that are going to be 3 designed to determine whether or not you can be 4 fair or impartial. 5 I can guarantee you that nothing we ask you 6 is going to be designed to embarrass you or in 7 any way make you feel uncomfortable. The sole 8 purpose of the questions is to determine whether 9 or not on today's trial you can be fair and 10 impartial. So we're asking you some questions 11 that relate particularly to that. 12 Consider for a minute if this were a DUI 13 case and some of you had either been charged 14 with DUI or someone in your family had been a 15 victim of a DUI driver, then this might be a 16 case that you might not be a good juror to serve 17 on because you might have some particular 18 feeling about DUI that might in some way impact 19 upon your ability to be fair and impartial. 20 That's kind of where we're headed here. 21 When we get to asking you questions, if you 22 at any point in time feel uncomfortable about 23 the questions that you are being asked and 24 uncomfortable about the answer that you would 25 have to give in front of the rest of what is KANABAY COURT REPORTERS 18 1 this venire, then you have my permission to ask 2 to approach. We would allow you to do that. 3 You can come up here to the bench. You can 4 stand here and answer the question in front of 5 myself, the attorneys and the court reporter, 6 and you won't have to reveal whatever it is that 7 you don't wish to reveal in front of entire 8 venire. So I want you to feel comfortable that 9 that is something that can happen. 10 Now, I anticipate that this case is going 11 to last two days. I heard a complaint already 12 about that. It was already well registered. I 13 it was believe Mr. Mensch who said "aw." I 14 might be wrong. I anticipate it is going to 15 last two days. I am going to ask you some 16 questions about that to determine whether or not 17 you might be a person who can sit here for a 18 couple of days and hear this case. 19 I'll also tell you that I anticipate there 20 are going to be news media personnel in the 21 courtroom at some point also today and tomorrow 22 as it relates to this trial and while the trial 23 is going on. So, if during the questioning 24 itself any of those things end up becoming a 25 problem for you or something that's going to KANABAY COURT REPORTERS 19 1 concern you, and I will ask you about your 2 ability to stay for two days in just a second 3 here, when the attorneys are asking you 4 questions or when I am, please bring that up. 5 As far as I am concerned, if we sort of 6 have the gall and audacity to ask you to 7 come down here and take away from what are 8 your busy lives, in some cases you're 9 probably missing work and there's no way in 10 the world we're going to pay you anywhere 11 near what you would make while at work 12 today, and, of course, sometimes you're 13 going to be missing your children and other 14 things, then it seems to me that we can do 15 the best we possibly can to be as nice to 16 you as we possibly can. So it's my intent 17 to do that. 18 So you need to -- or you should, rather, 19 rest assured that if at any point in time you 20 need to use the facilities -- I call it take a 21 potty break because I've got little ones, so I 22 always use the word "potty." But if you need to 23 use the facilities at any point in time, just 24 let me know. Better yet, let the bailiff know. 25 If you're sitting as a juror in this case KANABAY COURT REPORTERS 20 1 you'll be sitting over here in the jury box. 2 Sitting right next to you will be a bailiff. 3 Turn to the bailiff and let them know that you 4 got to go, and the bailiff will let me know, and 5 I can guarantee you I will take a break as soon 6 as practical so that we can make sure that that 7 happens. 8 I think the worst possible feeling there is 9 in the world is sitting trying to hold it and 10 you don't want anybody to know that you're 11 trying to hold it at the same time you've got to 12 focus on and concentrate on the evidence in this 13 case, and I don't really want that to be 14 something that you all suffer from. So again, 15 if you have that issue, then do that. 16 Also, if you need any other -- some other 17 type of breaks, I've had cases where I've had 18 folks who were diabetic and a couple of those 19 people needed to take a break so they can munch 20 on something especially going late in the 21 everything, again I'm prepared to take a break 22 so that that can happen for you. 23 If you need to stretch, some people have 24 back problems, anything like that, I don't have 25 a problem with that. You can stand where you KANABAY COURT REPORTERS 21 1 are and stretch and it will not offend me and it 2 will be something you're able to do. 3 The other thing or a couple other things, I 4 tend to allow jurors to take into the jury box 5 with them a covered drink. So if you're served 6 or, rather, able to serve or to serve as a juror 7 in this case, you can take into the jury box 8 with you a drink that's covered. So either have 9 a lid over it or a cap over it so that you don't 10 spill it. That's my concern. 11 Now, the only thing I would ask you as 12 relates particularly to the drink itself is that 13 when you get towards the end there, you don't 14 slurp it. We're trying to avoid having a 15 problem interrupting the witness as they're 16 testifying, so please don't slurp the drink. 17 I also tend to allow jurors, because I 18 understand some folks enjoy chewing gum -- 19 nobody else in the courtroom will get to chew 20 gum, but you can. And if you wish to chew gum, 21 that's fine with me. Again, we try to be nice 22 to you and we're going to do the best we can to 23 accommodate you. 24 The only thing -- I have two requests as it 25 relates to the gum. Don't chew the gum with KANABAY COURT REPORTERS 22 1 your mouth open, and please don't pop or smack 2 the gum. Every now and again we get somebody 3 that tries to pop or snap the gum, and that 4 is -- can be interrupting, so I would ask that 5 you not do that. 6 Anything else that I can possibly to do to 7 make this a more comfortable experience so you 8 can focus on the evidence in this case, listen 9 to the testimony of the witnesses and come to a 10 what is a fair and impartial verdict here today, 11 that's what I intend to do. I'm trying to place 12 you at ease. If I haven't done that yet, that's 13 what I'm trying to do. 14 Now, this, I believe, is going to take a 15 day and a half, two days to try. Is there 16 anyone here who cannot -- now, let me tell you 17 also I anticipate we'll break today between 18 five-thirty and seven, I mean, it may be closer 19 to maybe six and seven. Is there anyone here 20 who cannot stay, first of all, until six or 21 seven today, and then, secondly, cannot 22 participate in this trial for up to two days? 23 Please raise your hand. All right. I have, 24 sir, is it Ondich? 25 PROSPECTIVE JUROR ONDICH: Yes, sir. KANABAY COURT REPORTERS 23 1 THE COURT: All right. Can you tell me 2 why it is that you might not be able to 3 participate for two days? 4 PROSPECTIVE JUROR ONDICH: I'm a staff 5 radiological technologist. I travel, and 6 the hospital I have to attend to tomorrow 7 depends on me to be there. If not, then 8 they are not going to have enough people to 9 do x-rays in that facility. 10 THE COURT: Okay. Where do you have to 11 go tomorrow? 12 PROSPECTIVE JUROR ONDICH: Northside 13 Hospital? 14 THE COURT: That's here in Pinellas 15 County? 16 PROSPECTIVE JUROR ONDICH: Yes. 17 THE COURT: Here's my question, sir: 18 Is there anyone -- let me ask it this way. 19 Now, Mr. Ondich, God forbid decided to go 20 jogging today and slipped and fell and broke 21 his ankle. He can't go to work tomorrow. 22 Who does Northside Hospital call tomorrow 23 then to fill in for you? 24 PROSPECTIVE JUROR ONDICH: They will 25 have to try and find another agency and try KANABAY COURT REPORTERS 24 1 and bring in another technologist. 2 THE COURT: Okay. But the point of it 3 is that there is someone who could cover for 4 you if you could not make it to work 5 tomorrow; is that accurate? 6 PROSPECTIVE JUROR ONDICH: It's 7 possible, yes. 8 THE COURT: If we were to allow you to 9 use a telephone, and we would allow you to 10 use that phone pretty much at your 11 convenience whenever it would be necessary 12 for you to use that phone, could you arrange 13 for someone to maybe cover for you tomorrow? 14 PROSPECTIVE JUROR ONDICH: I can call 15 my supervisor and see if she will have 16 anyone available. 17 THE COURT: Okay. Thank you, sir. 18 Anybody else? All right. Let the record 19 reflect that no hands went up. 20 Okay. I'm going to go through this list, 21 and I'm going to read your names and I'm going 22 to try and make sure that I read them correctly. 23 The reason I do that is to avoid us pronouncing 24 your name several times wrongly. My last name 25 is Andrews, as you can see from my plaque and KANABAY COURT REPORTERS 25 1 from me having introduced myself. 2 And one of the things that seems to annoy 3 me more than anything, folks often leave off of 4 my last name that "s." They always call me 5 Michael Andrew. Nothing seems to annoy me more 6 than being called Michael Andrew. So your name 7 being mispronounced may annoy you. 8 I'm going to try to avoid that. I'm going 9 to go through and see if we can pronounce 10 everyone's name correctly, starting over here 11 with Mr. Benjamin, sir? 12 PROSPECTIVE JUROR BENJAMIN: That's 13 correct. 14 THE COURT: Okay. Is it Scurlock? 15 PROSPECTIVE JUROR SCURLOCK: Yes. 16 THE COURT: Is it Marx? 17 PROSPECTIVE JUROR MARX: Yes. 18 THE COURT: All right. Mr. Lovett? 19 PROSEPCTIVE JUROR LOVETT: Yes. 20 THE COURT: And Miss Matthews? 21 PROSPECTIVE JUROR MATTHEWS: Yes. 22 THE COURT: Miss Ellis? 23 PROSPECTIVE JUROR ELLIS: Yes, sir. 24 THE COURT: Miss, is the "S" silent? 25 PROSPECTIVE JUROR ELLIS: No. KANABAY COURT REPORTERS 26 1 THE COURT: I'm talking to Miss -- I'm 2 sorry. Not the "S" but the "T". Is the "T" 3 silent? 4 PROSPECTIVE JUROR TSIKOS: Tsikos. 5 THE COURT: It is Tsikos? 6 PROSPECTIVE JUROR TSIKOS: Tsikos. 7 THE COURT: So the "S" is silent? 8 PROSPECTIVE JUROR TSIKOS: Yes, sir. 9 THE COURT: Okay. Tsikos. 10 Is it Janusik or Janusik? 11 PROSPECTIVE JUROR JANUSIK: Janusik. 12 THE COURT: Janusik. Okay. Is it 13 Casella? 14 PROSPECTIVE JUROR CASELLA: Yes, it is. 15 THE COURT: Ezell? 16 PROSPECTIVE JUROR EZELL: Yes. 17 THE COURT: Is it Swonger? 18 PROSPECTIVE JUROR SWONGER: Yes, sir. 19 THE COURT: Mr. Ondich? 20 PROSPECTIVE JUROR ONDICH: Yes, sir. 21 THE COURT: Is it Bartocci? 22 PROSPECTIVE JUROR BARTOCCI: Bartocci, 23 right. 24 THE COURT: Miss Carter? 25 PROSPECTIVE JUROR CARTER: Yes. KANABAY COURT REPORTERS 27 1 THE COURT: Mr. Backus? 2 PROSPECTIVE JUROR BACKUS: (Indicates.) 3 THE COURT: Mr. Wilson? 4 PROSPECTIVE JUROR WILSON: (Indicates.) 5 THE COURT: All right. Mr. Langston? 6 PROSPECTIVE JUROR LANGSTON: Yes, sir. 7 THE COURT: Mr. Wright? 8 PROSPECTIVE JUROR WRIGHT: Yes. 9 THE COURT: Mr. Herdman? 10 PROSPECTIVE JUROR HERDMAN: Yes. 11 THE COURT: Miss Mobley? 12 PROSPECTIVE JUROR MOBLEY: (Indicates.) 13 THE COURT: Miss Drake? 14 PROSPECTIVE JUROR DAKE: Dake, no "R." 15 THE COURT: I'm sorry. There is no "R" 16 there. You're right. You would know. 17 Sorry, Miss Dake. 18 And Mr. Osborn? 19 PROSPECTIVE JUROR OSBORN: (Indicates.) 20 THE COURT: Mr. Garrison? 21 PROSPECTIVE JUROR GARRISON: (Indicates.) 22 THE COURT: Mr. Shea? 23 PROSPECTIVE JUROR SHEA: (Indicates.) 24 THE COURT: Is it Rothschild? 25 PROSPECTIVE JUROR ROTHSCHILD: The "S" KANABAY COURT REPORTERS 28 1 is silent. 2 THE COURT: The "S" is silent, so 3 Rothschild? 4 PROSPECTIVE JUROR ROTHSCHILD: Right. 5 THE COURT: Miss Lovely? 6 PROSPECTIVE JUROR LOVELY: Yes. 7 THE COURT: Is it Lepley? 8 PROSPECTIVE JUROR LEPLEY: Yes. 9 THE COURT: And is it -- is there a 10 hyphen between Dalla and Rosa? 11 PROSPECTIVE JUROR DALLA ROSA: No. 12 It's one word -- one name, two words. 13 THE COURT: Okay. So It's Miss Dalla 14 Rosa? 15 PROSPECTIVE JUROR DALLA ROSA: Dalla 16 Rosa. 17 THE COURT: Okay. Mr. Wickett? 18 PROSPECTIVE JUROR WICKETT: Yes. 19 THE COURT: And Mr. Mensch? 20 PROSPECTIVE JUROR MENSCH: Yes. 21 THE COURT: Okay. Now, real quickly, 22 by a show of hands, if you left your common 23 sense at the door when you walked in the 24 courtroom, please raise your hand. 25 Let the record reflect that nobody raised KANABAY COURT REPORTERS 29 1 their hand. Every now and again someone raises 2 their hand. Actually on Monday three people 3 raised their hand. The reason I asked you that 4 is because you are not required to leave your 5 common sense at the door. It is not magic and 6 there is nothing mystical about what's going to 7 happen here today. We ask you to bring your 8 common sense into this courtroom. 9 For the X-number of years that each of you 10 have been living or has been living, you've 11 developed some things that help you determine 12 whether or not you believe a person is telling 13 the truth or telling a lie, whether or not a 14 story is believable or not believable. We don't 15 ask you to abandon that. In fact, we ask -- 16 insist that you bring that in the courtroom with 17 you here today. 18 Now, all the evidence in this case, all of 19 the evidence, is going to come from one place 20 and one place only. That is this witness stand. 21 What I say will not be evidence. What the 22 lawyers say will not be evidence. The evidence 23 will come from the testimony of the witnesses 24 and some of the documents, if any, that are 25 introduced into this trial here today. KANABAY COURT REPORTERS 30 1 When they are done testifying, then I will 2 read to you at the end of the trial what is the 3 law in this case. Now, what we ask you to do is 4 to look at the evidence and the law and come up 5 with what is a fair and impartial verdict here 6 today. That's what we're going to ask you to 7 do, and you using your common sense to do that. 8 Is there anyone here who cannot do that? 9 Please raise your hand if you can't. Okay. 10 Thank you. Let me introduce to you all the 11 people who are in the courtroom here today. 12 Sitting over here in the jury box is a student, 13 if you will. She is sort of observing and 14 learning how this is done. So that's -- how do 15 you say your last name? 16 UNIDENTIFIED SPEAKER: Delcolisis 17 (phonetic.) 18 THE COURT: I can't say it, so I always 19 ask her to say her last name. Next to 20 Miss Thea is the bailiff. The bailiffs are 21 the persons you will see that have on black 22 jackets, black tie, and a white shirt. 23 They're going to be in charge of our safety 24 here today. They're going to protect us. 25 They're going to take you, if you serve as a KANABAY COURT REPORTERS 31 1 juror, from place to place throughout the 2 building where it is that you might need to 3 go. 4 If some of you are smokers, they will take 5 you to a particular place in the building where 6 you will be allowed -- well, outside really is 7 only where you will be allowed to smoke. And 8 for all intents and purposes they're going to 9 make sure that you are comfortable and address 10 your needs. Those are the ones you would talk 11 to again if you have some issues that you need 12 to address. 13 Sitting to my right in front of me here is 14 the assistant state attorney who is going to be 15 prosecuting the State's case. Ma'am, stand and 16 introduce yourself and read from your witness 17 list anyone you anticipate you may call. 18 MS. WARDELL: Yes, Judge. Good 19 morning. Lydia Wardell with the State 20 Attorney's Office. 21 Officer Howard Crosby, 22 Officer Michael Bruno and Pinellas County Lab 23 technician Stacy Mace. Judge, do you want me to 24 read all the possible witnesses or just the ones 25 I intend to call? KANABAY COURT REPORTERS 32 1 THE COURT: If you possibly may call 2 some others, please also read those. 3 MS. WARDELL: Okay. There is 4 Brian Raftery, Barry Gaston, Ray Emmons, 5 James Patterson, Frank Oliver and 6 Deneen Phillips. 7 THE COURT: Thank you very much. 8 Sitting in front of me here is our court 9 reporter, and she is typing any and 10 everything that we say down, which, of 11 course, preposes that we actually say 12 something audible. 13 We have sort of a habit I think, or folks 14 often, at least in this county I've come to 15 realize, answer questions with when they want to 16 answer a question yes, they say uh-huh, and if 17 they want to say no, they say huh-uh. Well, 18 there is nothing on the machine that takes down 19 the uh-huh and the huh-uh. So we're going to 20 need to say yes and no. 21 We also sometimes also answer our questions 22 by shaking our head up and down, yes; shaking it 23 left and right for no. Again, nothing on the 24 machine that's going take down the shakes of 25 your head. So we would ask you to be -- if you KANABAY COURT REPORTERS 33 1 answer your question, that you answer them out 2 loud and say yes or no to -- or whatever the 3 answer may be to the questions that are asked. 4 Sitting in front of me here is 5 Mr. DeVlaming and his client. Mr. DeVlaming, 6 would you please stand and introduce yourself 7 and your client and any witness you may call 8 today. 9 MR. DEVLAMING: Yes, your Honor. My 10 name is Denis DeVlaming. I'm a lawyer in 11 Clearwater. And Miss Wardell read the names 12 of all witnesses in this case including the 13 ones that I intend to call, so I have 14 nothing in addition at this time. And this 15 is Jesse Prince. He is my client. He is 16 also of Pinellas County. 17 THE COURT: Thank you, sir. 18 Sitting over to my left is the court clerk. 19 The court clerk is for all intents and purposes 20 the Court's secretary. She takes all the 21 minutes in this case, will collect all of the 22 evidence and will make sure that I do all the 23 things that are supposed to be done in this 24 case. For instance, you all were sworn when you 25 came. She will take care of that. She will KANABAY COURT REPORTERS 34 1 remind me to swear you in if I fail to do that, 2 and just keep the trial running orderly and 3 efficiently. 4 Now, having done that, introduced all these 5 folks, is there anyone here who recognizes any 6 of the people in the courtroom or any of the 7 names that were called? Please raise your hand 8 if you do. 9 Okay I have Mr. Wright raising his hand. 10 Sir, who do you recognize? 11 PROSPECTIVE JUROR WRIGHT: Mr. Oliver 12 and the Clerk. 13 THE COURT: Okay. You recognize the 14 Clerk and you recognize Mr. Oliver? 15 PROSPECTIVE JUROR WRIGHT: Uh-huh. 16 THE COURT: Okay. Anything about the 17 fact you recognize Mr. Oliver and recognize 18 the Clerk here today going affect your 19 ability to be fair and impartial here today? 20 PROSPECTIVE JUROR WRIGHT: No. 21 THE COURT: Okay. Thank you. Anyone 22 else? Anybody here recognize or heard 23 anything in particular about this case from 24 the information as I read it. Okay. No 25 hands. KANABAY COURT REPORTERS 35 1 Let me go into greater detail. This case 2 was in the paper two days -- well, I think it 3 was Saturday and today. It was in the 4 St. Petersburg Times Saturday and it made its 5 way into the Tampa Tribune today. There are 6 some allegations that this case involves 7 members, a former member -- arguably a former 8 member of the Church of Scientology and the 9 Church of Scientology, arguably, itself. I'm 10 not telling you that it does or doesn't, but 11 that's what the paper would seem to suggest. 12 Did anyone read those articles? Okay. 13 Starting down here with Mr. Marx. Did you -- 14 you read the article? 15 PROSPECTIVE JUROR MARX: I -- 16 THE COURT: You did read the article? 17 PROSPECTIVE JUROR MARX: (Indicates.) 18 THE COURT: Other than Mr. Marx, 19 anybody else? Please raise your hand if you 20 read that article or those articles. 21 Mr. Marx, I'm going to ask you to please 22 step to the podium, sir, or, rather, to step 23 to the bench. 24 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 25 MR. DEVLAMING: Judge, do you need a KANABAY COURT REPORTERS 36 1 waiver from my client? He doesn't need to 2 be here, but if you want him -- 3 THE COURT: I do need a waiver. 4 MR. DEVLAMING: Okay. Mr. Prince? 5 (THE DEFENDANT APPROACHES THE BENCH) 6 MR. DEVLAMING: Mr. Prince, you have a 7 right to be here at the bench conference as 8 well as other bench conferences or you can 9 waive that right and be represented by your 10 lawyer. I recommend that, but it's your 11 decision to make. What do you want to do? 12 Do you want to be at the bench conferences, 13 or do you want me to handle it for you? 14 THE DEFENDANT: I'm perfectly -- I 15 trust you to handle it competently. 16 THE COURT: Thank you, Mr. Prince. 17 (THE DEFENDANT RETURNED TO THE DEFENSE TABLE) 18 THE COURT: Sir can you tell us what it 19 is you read in the article? 20 PROSPECTIVE JUROR MARX: I said -- yes, 21 your Honor, since you mentioned it. 22 THE COURT: Okay. And we gave the 23 names, but the first time the name didn't 24 connect with you? 25 PROSPECTIVE JUROR MARX: No. KANABAY COURT REPORTERS 37 1 THE COURT: Is there anything in 2 particular about that article that you think 3 since has in any way swayed you or made you 4 feel that you might not be able to be fair 5 here today? 6 PROSPECTIVE JUROR MARX: The article it 7 looks to me like it presented, like, one 8 side of the story and not the other side, so 9 -- 10 THE COURT: Do you think that the fact 11 that, in your mind, the article presented 12 only one side of the story is going to 13 affect your ability to sit and listen to 14 both sides of the story, if both sides are 15 offered, and come up with a fair and 16 impartial verdict here today? 17 PROSPECTIVE JUROR MARX: Yes. 18 THE COURT: Why do you say that? 19 PROSPECTIVE JUROR MARX: Well, I'd 20 like -- I don't like extreme religions, 21 and -- 22 THE COURT: You're saying at this time 23 that the article -- you say you don't like 24 extreme religions. Let me ask you this: By 25 extreme -- did you already have an opinion KANABAY COURT REPORTERS 38 1 about the Church of Scientology before you 2 read the article? 3 PROSPECTIVE JUROR MARX: I read the 4 articles on the Church of Scientology. 5 THE COURT: Did you already -- 6 PROSPECTIVE JUROR MARX: I've read many 7 articles because there's all kinds of 8 scandals in Clearwater. 9 THE COURT: Right. And did you already 10 have some particular feelings, negative 11 feelings, about the Church of Scientology 12 before you read the article today? 13 PROSPECTIVE JUROR MARX: Negative, I 14 can't tell you. 15 THE COURT: Here's my problem. You say 16 that you don't like extreme religions, and 17 that's causing me to assume that you know 18 something in particular about the Church of 19 Scientology to make you think it is an 20 extreme religion as opposed to -- 21 PROSPECTIVE JUROR MARX: I believe 22 people can practice whatever they want. It 23 doesn't affect me, but it is always in the 24 paper. I don't know if they do that because 25 of they like publicity or -- they're always, KANABAY COURT REPORTERS 39 1 like, front page. 2 THE COURT: Okay. 3 PROSPECTIVE JUROR MARX: So -- 4 THE COURT: All right. Did you have 5 some questions? 6 MS. WARDELL: Do you recall if you read 7 the St. Pete Times article Saturday or the 8 Tampa Tribune's article today? 9 PROSPECTIVE JUROR MARX: Saturday's 10 article. 11 MS. WARDELL: You read Saturday's 12 article? 13 PROSPECTIVE JUROR MARX: Uh-huh. 14 MS. WARDELL: Which side did I think -- 15 you said you believe only one side was 16 given. What side do you believe was 17 presented in that article? 18 PROSPECTIVE JUROR MARX: I can't 19 remember. I can't recall, but I remember 20 having, let's say, a negative feeling about 21 the article. I can't remember exactly what 22 side. I would have to reread it, but I do 23 remember it stayed with me. 24 MS. WARDELL: You have negative 25 feelings about the prosecution of the KANABAY COURT REPORTERS 40 1 individual because Scientology was involved? 2 PROSPECTIVE JUROR MARX: Possibly. 3 MS. WARDELL: Because the techniques 4 and tactics that they used to -- like one 5 against the other? 6 PROSPECTIVE JUROR MARX: I guess. 7 MS. WARDELL: So the article, that led 8 you to believe that improper tactics were 9 used to lead to the prosecution or to the 10 arrest? 11 PROSPECTIVE JUROR MARX: Yes. I'm not 12 sure, but I know -- I mean, whenever it's 13 involving, like, the Church of 14 Scientology -- I don't know or read that 15 much about them besides they are in the 16 paper all the time. So they are in the 17 paper all the time. They must, like, have 18 some reason to be in the paper all the time. 19 I mean, I don't see, like, some other local 20 churches being in the paper all the time. 21 MS. WARDELL: Based upon what you read, 22 do you think you could be fair and impartial 23 in this case? 24 PROSPECTIVE JUROR MARX: No. 25 THE COURT: Do you understand the KANABAY COURT REPORTERS 41 1 Church of Scientology is not a party in this 2 case? 3 PROSPECTIVE JUROR MARX: Oh, I 4 understand that. 5 THE COURT: Okay. Having said that, do 6 you think if the Church of Scientology 7 becomes relevant to the proceedings that you 8 would hold it against the Church of 9 Scientology and possibly against either the 10 prosecution or the defense or whichever side 11 arguably represents or is fostering what 12 would be their interest? 13 PROSPECTIVE JUROR MARX: Well, I have 14 this doubt. This other problem with 15 marijuana is that I had a couple of friends 16 over the years that kind of are in and out 17 of this world by just smoking too much. I 18 mean, like, being they would tell me they 19 were on medication and -- 20 THE COURT: Okay. Here's the thing. 21 I'm just trying to focus on the article. 22 PROSPECTIVE JUROR MARX: Okay. 23 THE COURT: We can talk about your 24 friends at another point. What I'm trying 25 to figure out, what I'm trying to get you to KANABAY COURT REPORTERS 42 1 tell me is are you going to hold it against 2 a particular side, either the prosecution or 3 the defense, if you come to believe that one 4 or the other side might be assisting the 5 Church of Scientology in whatever you don't 6 like about them today? 7 PROSPECTIVE JUROR MARX: I can't -- I 8 can't answer. 9 THE COURT: All right. Mr. DeVlaming, 10 did you have any questions of this 11 gentleman? 12 MR. DEVLAMING: I guess what we're 13 trying to find out, Mr. Marx, is based upon 14 what you've read and based upon what you 15 know and what you've just told us, do you 16 feel that you can follow the law that the 17 judge gives you at the end of the case and 18 take the facts that you hear from the 19 courtroom and arrive at a fair verdict, or 20 do you think you come in with some sort of 21 bias or prejudice? 22 PROSPECTIVE JUROR MARX: I think I am 23 more likely coming with a bias or prejudice. 24 THE COURT: Thank you. 25 MR. DEVLAMING: Okay. KANABAY COURT REPORTERS 43 1 (PROSPECTIVE JUROR LEAVES THE BENCH) 2 THE COURT: Stay here. I'm not sure I 3 understand where we're headed here. I 4 believe he is cause. I don't know that we 5 need to ask him any more questions. Do you 6 agree he is cause? 7 MS. WARDELL: I don't have a problem 8 with cause. 9 MR. DEVLAMING: Let's let him go. 10 THE COURT: All right. Thank you. 11 MR. DEVLAMING: Judge, though, I'm 12 always a little leary about a stampede, and 13 sometimes when a juror leaves -- 14 THE COURT: He's staying. I was just 15 saying don't ask him any questions. 16 MR. DEVLAMING: That's fine. 17 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 18 THE COURT: I understand right now we 19 need to take about a ten-minute recess. 20 We'll take that recess at this moment, and 21 then in ten minutes we'll come back and I'll 22 finish my questioning and turn it over to 23 the attorneys. Okay? Let's take ten. 24 (A RECESS WAS HAD) 25 THE COURT: All right. KANABAY COURT REPORTERS 44 1 MR. DEVLAMING: We don't need the court 2 reporter. 3 (A DISCUSSION WAS HAD OFF THE RECORD) 4 THE COURT: Okay. Before we took the 5 last break I forgot to tell you a couple 6 things. First of all, from this point 7 forward, especially if you're picked, but 8 until the proceeding, this selection 9 process, is over, you cannot discuss this 10 case amongst yourselves, nor can you read 11 any articles relating particularly to this 12 case. Nothing whatsoever. 13 Now, did anyone actually run out and grab 14 the paper in the last ten minutes? Raise your 15 hand if you did. It's okay to tell the truth. 16 You can't get in any trouble. Nobody's going to 17 jail. 18 PROSPECTIVE JUROR ROTHSCHILD: I've got 19 a paper. 20 THE COURT: Yeah. But the question is 21 did you read the paper? 22 PROSPECTIVE JUROR ROTHSCHILD: No. 23 THE COURT: So grabbing the paper is 24 fine. Please don't read any articles 25 related to this. I also forgot to do one KANABAY COURT REPORTERS 45 1 thing. Did you already invoke the rule 2 here? 3 MS. WARDELL: No, sir. 4 THE COURT: All right the rule of writ 5 and sequestration is at this time invoked. 6 Anyone who is in this courtroom and may be a 7 witness in these proceedings is ordered to 8 not discuss this matter and to leave the 9 courtroom at this time. 10 I have a couple of more questions for you 11 and then I'll turn the questioning over. 12 Everybody agree that if you don't like a 13 law you must still nonetheless follow the law? 14 Do we all agree with? 15 THE PROSPECTIVE JURORS: Yes. 16 THE COURT: Let me ask that again 17 because I'm asking for an audible answer. 18 We all agree that if you don't like the law 19 you have to follow that law? 20 THE PROSPECTIVE JURORS: Yes. 21 THE COURT: All right. From a show of 22 hands, if you just love to pay your taxes, 23 raise your hand. All right. Let the record 24 reflect that nobody raised their hands. I'm 25 happy to hear that. Now, but nonetheless, KANABAY COURT REPORTERS 46 1 we do pay those taxes because it is the law 2 and we have to support our republic. Does 3 everybody agree with that? 4 THE PROSPECTIVE JURORS: Yes. 5 THE COURT: Would you also agree that 6 if you want to change the law, the place to 7 change that law is in Tallahassee and not in 8 courtroom here today? 9 THE PROSPECTIVE JURORS: Yes. 10 THE COURT: Is that a fair assessment? 11 THE PROSPECTIVE JURORS: Yes. 12 THE COURT: So no matter how silly you 13 think that law is, you all can, nonetheless, 14 listen to the evidence, listen to the law 15 that I read to you and follow that law in 16 deciding your verdict? Can you do that? 17 THE PROSPECTIVE JURORS: Yes. 18 THE COURT: I'm going to read an 19 instruction to you. This is called the 20 reasonable doubt instruction. I'm going to 21 read it to you now and read to you again at 22 the end of the trial. 23 The State has the responsibility of proving 24 the defendant's guilt beyond and to the 25 exclusion of every reasonable doubt. You KANABAY COURT REPORTERS 47 1 don't -- the defendant in this case doesn't have 2 to prove or disprove anything. The definition 3 of reasonable doubt is as follows: 4 Whenever the words "reasonable doubt" are 5 used you should consider the following: 6 A reasonable is not a mere possible 7 doubt -- you all can hear me okay without the 8 microphone on? 9 THE PROSPECTIVE JURORS: Yes. 10 THE COURT: All right -- is not a, mere 11 possible doubt, a speculative, imaginary or 12 forced doubt. Such a doubt must not 13 influence you to return a verdict of not 14 guilty if you have an abiding conviction of 15 guilt. On the other hand, if, after 16 carefully considering, comparing and 17 weighing all the evidence, there is not an 18 abiding conviction of guilt, or, if, having 19 a conviction, it is one which is not stable 20 but one which wavers and vacillates, then 21 the charge is not proved beyond all 22 reasonable doubt and you must find the 23 defendant not guilty because the doubt is 24 reasonable. 25 It is to the evidence introduced in this KANABAY COURT REPORTERS 48 1 trial, and to it alone, that you are to look for 2 that proof. 3 A reasonable doubt as to the guilt of a 4 defendant may arise from the evidence, conflict 5 in the evidence or the lack of evidence. 6 If you have a reasonable doubt, you should 7 find the defendant not guilty. If you have no 8 reasonable doubt, you should find the defendant 9 guilty. 10 That is the definition of reasonable doubt. 11 That is the standard by which the State has to 12 prove this case today. And I'm going read it to 13 you again at the end of the trial and ask you 14 pay attention to it and to apply it. 15 But here's a question that I have that sort 16 of stems from that. Has anybody here ever seen 17 Perry Mason? Raise your hand. How about 18 Matlock? L.A. Law? Any of that? Ally McBeal? 19 Any of those other shows? The point I'm ready 20 to get at here is that you hear a whole lot of 21 stuff -- if you have a phone or a beeper, please 22 turn those off or place them on vibrate. 23 You hear a lot of stuff on those shows 24 about the law, and we unfortunately actually had 25 a juror once in the jury room say, Well, on KANABAY COURT REPORTERS 49 1 L.A. Law I saw this, or on The Verdict I saw 2 that. Well, you can't consider things that you 3 saw on L.A. Law or any of those other shows. 4 None of -- the truth is those things are really 5 not factual. 6 On one of those shows I actually saw an 7 attorney throw an appellate brief at an 8 appellate court judge. That would never happen. 9 She would lose her bar card. She would be face 10 down on the pavement. The bailiff would have 11 her in custody and she would be dragged out of 12 the courtroom. The point is that wouldn't 13 happen. So you can't rely on any of that stuff. 14 Mr. Matlock used to talk about what was the 15 shadow of a doubt. There's no such standard. 16 The standard is reasonable doubt. The thing 17 that I'm asking you all to do is to not pay any 18 attention to what you may have seen on those 19 shows and focus on the facts of this case, the 20 evidence in this case, and determine the guilt 21 or innocence of this defendant based solely on 22 this. 23 Is there anyone here who thinks that they 24 cannot do that? Let the record reflect that no 25 one has raised his or her hand at this time. KANABAY COURT REPORTERS 50 1 All right. Sympathy is a common emotion, 2 and it's one that we all have. You would not be 3 human if you did not have feelings of sympathy. 4 But sympathy is not legally a reasonable doubt. 5 You can't decide your verdict in this case 6 because you're angry at anyone or because you 7 feel sorry for anyone. 8 Is there anybody here who feels that they 9 could not set aside whatever sympathies you may 10 have for or against the State or the Defense in 11 this case and base your verdict solely on the 12 evidence? Is there anyone here who cannot do 13 that? Raise your hand if you can't. Let the 14 record reflect that again nobody has raised his 15 or her hand. 16 Now, it is often the occasion -- well, it 17 has happened in the past. Often maybe too 18 strong, but it has happened in the past that 19 from time to time people have not been able to 20 reach a verdict. They can't sit in judgment of 21 another person. 22 Let me suggest to you that you are not 23 today sitting in judgment of a person. You are 24 sitting in judgment of the facts of this case. 25 You are going to be listening to the facts and KANABAY COURT REPORTERS 51 1 determining whether or not from the facts the 2 State has proven the defendant's guilt beyond 3 and to the exclusion of every reasonable doubt. 4 But assume for the moment you believe you 5 are sitting in judgment of a person. Is there 6 anyone here who for whatever reason, religious, 7 social, moral, whatever reason, you don't think 8 that you, as you know yourself to, be can sit in 9 judgment of a person and render a verdict with 10 the understanding that you're going to be 11 finding a person either guilty or not guilty of 12 the charge? 13 Mind you, if the defendant ultimately is 14 found guilty here today, whatever sentence he 15 receives will be up to me, not you. So you 16 would be sitting in judgment solely of the facts 17 of this case. Is there anyone here who can't do 18 that, you feel that that's just something that 19 you should not be called upon to do? Raise your 20 hand if you think that reflect -- relates to 21 you. Again no hands went up. 22 Okay. As I look through my list of 23 questions, I am done, and I'm getting ready 24 to turn the questioning over to the 25 assistant state attorney. I would ask that KANABAY COURT REPORTERS 52 1 you pay careful attention to her also. 2 Thank you. You may proceed. 3 MS. WARDELL: Thank you, Judge. Good 4 morning. 5 THE PROSPECTIVE JURORS: Good morning. 6 (A BRIEF PAUSE) 7 MS. WARDELL: Good morning. 8 THE PROSPECTIVE JURORS: Good morning. 9 MS. WARDELL: I understand that each of 10 you all are here because of a summons, if 11 you will, that you received in your mail 12 box, and I want to talk to you a minute 13 about the morning or the evening that you 14 got that summons and realized today is the 15 day that you have to come down to this 16 complex and participate in jury selection. 17 Miss Scurlock, tell me about that. When 18 you got it, kind of what was going on in your 19 mind? 20 PROSPECTIVE JUROR SCURLOCK: Actually I 21 knew. I had came last month for a jury 22 selection, but I just -- I was graduating 23 from college and I had my midterms due, so I 24 couldn't serve last time so I knew I had to 25 come. KANABAY COURT REPORTERS 53 1 MS. WARDELL: Okay. And because of 2 knowing ahead of time, did that give you the 3 luxury, if you will, of making arrangements 4 for today and possibly tomorrow if you're 5 available? 6 PROSPECTIVE JUROR SCURLOCK: Right. 7 MS. WARDELL: Well, that's good for 8 you. Is there anybody else that had that 9 convenience that they knew ahead of time 10 prior to going out to their mail box that 11 today was the day they were going to have to 12 come in? 13 Miss Scurlock, I see you work with R'Club. 14 Were you able to get -- that involves children, 15 right? 16 PROSPECTIVE JUROR SCURLOCK: Right. 17 MS. WARDELL: Were you able to get your 18 duties and responsibilities covered for 19 today? 20 PROSPECTIVE JUROR SCURLOCK: Yes. 21 MS. WARDELL: Okay. Good. 22 Miss Matthews, same question to you. I see 23 that you're a teacher. 24 PROSPECTIVE JUROR MATTHEWS: Yes. 25 MS. WARDELL: When you got your summons KANABAY COURT REPORTERS 54 1 did you -- were you immediately able go to 2 your supervisor or the principal and make 3 arrangements for today? 4 PROSPECTIVE JUROR MATTHEWS: Yes, I 5 was. 6 MS. WARDELL: If you're selected to be 7 seated on this jury, are your thoughts and 8 attentions going to be distracted to the 9 children you've left behind and whether or 10 not the substitute is going to adaquately 11 cover? 12 PROSPECTIVE JUROR MATTHEWS: I would 13 say no. 14 MS. WARDELL: Okay. And, if selected, 15 can you give your full focus and attention 16 on the evidence and the facts as presented 17 by both the State and the Defense against 18 Mr. Prince? 19 PROSPECTIVE JUROR MATTHEWS: Yes, 20 ma'am. 21 MS. WARDELL: And I know it's the end 22 of the year, and is school not quite out for 23 you all? 24 PROSPECTIVE JUROR MATTHEWS: June 9th 25 is the last day of school. KANABAY COURT REPORTERS 55 1 MS. WARDELL: Okay. All right. Good. 2 Miss Tsikos, same question to you. Tell me 3 about being here today and learning that today 4 was the day. Is there anything going on in your 5 background or work related that this presents a 6 problem for you? 7 PROSPECTIVE JUROR TSIKOS: No. I'm 8 free. And I've known for several weeks that 9 I would be here today, so I don't have a 10 problem. I am retired. 11 MS. WARDELL: Okay. A lot of times I 12 find especially here in Pinellas County that 13 some folks are responsible for other folks. 14 In other words, they have elderly 15 fathers-in-law or mothers to take care of 16 and they need to be with these -- these 17 individuals rely on them, whether it's small 18 children or elderly adults. 19 Is there anybody here who has that type of 20 responsibility that if they're selected they are 21 going to be wondering whether their elderly 22 patient it going to get their medicine and 23 things of that nature that needs to be done? Is 24 there anybody responsible for somebody else? 25 Okay. That's a no? All right. KANABAY COURT REPORTERS 56 1 Mr. Bar -- is it, I'm sorry, Bartocci? 2 PROSPECTIVE JUROR BARTOCCI: Bartocci. 3 MS. WARDELL: Is the mail going to get 4 delivered today without do you being there? 5 PROSPECTIVE JUROR BARTOCCI: It always 6 does. 7 MS. WARDELL: Same question to you. I 8 think it's, Mr. Wright, same thing. Is 9 somebody covering your route? 10 PROSPECTIVE JUROR WRIGHT: Yes. 11 MS. WARDELL: Was it a problem for you 12 to get your route covered? 13 PROSPECTIVE JUROR WRIGHT: No, no 14 problem at all. 15 MS. WARDELL: So if you're selected to 16 sit up here, are you going to wonder whether 17 those dogs are going to be attacking 18 somebody else and will your focus be 19 distracted? 20 PROSPECTIVE JUROR WRIGHT: No, I won't 21 be distracted. 22 MS. WARDELL: Because keep in mind the 23 whole point and the purpose behind this is 24 that we all, both sides, want six 25 individuals who are going to be fair and KANABAY COURT REPORTERS 57 1 impartial. Of course Miss Wardell on behalf 2 of the State wants six folks to vote that 3 the defendant is guilty beyond a reasonable 4 doubt, and Mr. DeVlaming on behalf of 5 Mr. Prince wants six individuals to say no 6 way, State, you didn't do your job. But we 7 have a common thread. We have a common goal 8 here, and that is that we select six of you, 9 who, no matter what your decision is, you 10 will treat this case openly and fairly and 11 listen to all the facts before you make your 12 decision. 13 Is there anybody for whatever reason 14 whatever distraction might be in your mind, be 15 it your job, be it your work, be it your family 16 responsibilities, that can't do that? 17 Mr. Rothschild? 18 PROSPECTIVE JUROR ROTHSCHILD: Yes, 19 ma'am. 20 MS. WARDELL: Anything going on in your 21 background as relates to work or home that 22 might distract your attention? 23 PROSPECTIVE JUROR ROTHSCHILD: Not 24 really. I just started a new job, but it 25 won't be distracting I don't think. KANABAY COURT REPORTERS 58 1 MS. WARDELL: Okay. Is this with the 2 medical equipment? Is that covered? 3 PROSPECTIVE JUROR ROTHSCHILD: It's 4 covered, yes. 5 MS. WARDELL: Okay. Miss Dake, I think 6 I wrote down that you have a manager-type 7 position. Is this a hardship for you to be 8 here today? I know that means you're 9 responsible for others. 10 PROSPECTIVE JUROR DAKE: No. I have 11 four interns. 12 MS. WARDELL: Okay. Good. Good. 13 That's lucky for you. Okay. Well, hearing 14 no other voices and seeing no other hands, 15 I'm going to move on with the understanding 16 that anybody that's selected out of this 17 group has no outside distractions, whether 18 it be work or family related. 19 The judge touched on it briefly with 20 regards to the burden of doubt here, and I 21 believe that he covered that area 22 satisfactorily, and I just want to make sure 23 that you understand that I do have the burden in 24 this case. 25 I'm a representative of Mr. McCabe, the KANABAY COURT REPORTERS 59 1 State of Florida, and the burden is right here 2 on me, squarely on me, and I want each and every 3 one of you to agree that you will hold me to my 4 job and nothing more than my job. 5 The judge talked about a shadow of a doubt, 6 and we have a reasonable doubt, and then, of 7 course, we have, you know, maybe, maybe not. I 8 don't want a maybe, maybe not. I don't want a 9 speculation. I don't want a proof by all doubt. 10 That's absolutely impossible. Unless you were 11 there and saw it for yourself, you're never 12 going to convince yourself proof by all doubt. 13 Is there anybody here that wants me to live 14 up to a higher standard? Anybody that thinks 15 that a reasonable doubt isn't good enough? 16 Mr. Garrison, is reasonable doubt a good 17 enough standard for you? 18 PROSPECTIVE JUROR GARRISON: Yes, it 19 is. 20 MS. WARDELL: Can you hold me to that 21 burden and that alone? 22 PROSPECTIVE JUROR GARRISON: Yes. 23 MS. WARDELL: Mr. Swonger? 24 PROSPECTIVE JUROR SWONGER: Yes, ma'am. 25 MS. WARDELL: Same question. KANABAY COURT REPORTERS 60 1 PROSPECTIVE JUROR SWONGER: Yeah. 2 MS. WARDELL: Do you expect more of me? 3 PROSPECTIVE JUROR SWONGER: No. 4 MS. WARDELL: Do you expect less of me? 5 PROSPECTIVE JUROR SWONGER: No, ma'am. 6 MS. WARDELL: Mr. Lovett, you expect 7 more of me? 8 PROSEPCTIVE JUROR LOVETT: No, ma'am. 9 MS. WARDELL: Do you think somebody 10 sitting here on criminal charges on trial 11 today, a very important day for Mr. Prince, 12 do you think because of that I should have 13 some higher burden? 14 PROSEPCTIVE JUROR LOVETT: No, ma'am. 15 MS. WARDELL: Is there anybody that 16 thinks I should have a higher burden? Okay. 17 Let the record reflect no hands. 18 Is there anybody who thinks, hey, wait a 19 minute, he is sitting there, where there's 20 smoke, there's fire, you don't need to have that 21 kind of burden, let's have a little bit lower 22 burden? Anybody who thinks just because he is 23 sitting there something wrong happened here? 24 You heard the phrase "presumption of 25 innocence." This is a criminal trial. It's not KANABAY COURT REPORTERS 61 1 a civil trial. Okay? Right now as Mr. Prince 2 sits before you he is what we call, quote, 3 presumed innocent. Is that a phrase that you 4 all have heard before? A nod of heads? Yes? 5 Okay. Can each of you, as we sit here now, 6 presume Mr. Prince innocent? Okay. 7 Miss Carter, I see you nodding your head. 8 PROSPECTIVE JUROR CARTER: Yes. 9 MS. WARDELL: Okay. And now, of 10 course, the converse of that and what I'm 11 going to ask you to do for me is once the 12 witnesses start to testify and once the 13 evidence begins to come out, can you agree 14 that you'll give me a fair shake at chipping 15 away at that presumption, and can you agree 16 that he may not have that presumption come 17 the end of the trial? Is that -- does 18 everybody understand that? 19 Mr. Wilson, I see you're nodding your head. 20 PROSPECTIVE JUROR WILSON: Yes. 21 MS. WARDELL: You agree right now he's 22 presumed innocent, but once the curtain 23 lifts, if you will, the State has a fair 24 shot of putting on the evidence, right, 25 Mr. Wickett? KANABAY COURT REPORTERS 62 1 PROSPECTIVE JUROR WICKETT: Yes. 2 MS. WARDELL: Is that fair? 3 PROSPECTIVE JUROR WICKETT: (Indicates.) 4 MS. WARDELL: Can you agree to that? 5 PROSPECTIVE JUROR WICKETT: Yes. 6 MS. WARDELL: Okay. Mr. Herdman? 7 PROSPECTIVE JUROR HERDMAN: Yes. 8 MS. WARDELL: Same question. Right 9 now, presumed innocent, end of the trial, 10 consider the facts and the evidence, and 11 maybe not give him that cloak? 12 PROSPECTIVE JUROR HERDMAN: Yeah. 13 MS. WARDELL: Okay? 14 PROSPECTIVE JUROR HERDMAN: Yes. 15 MS. WARDELL: Okay. All right. 16 Anybody that doesn't understand that 17 proposition or has a problem with that? All 18 right. 19 I want to give you an example, if you will, 20 and I want to ask you what you would think based 21 upon this example. Okay? 22 And, Miss Lepley, all right, I'm going to 23 ask you the question so I'll let you know it's 24 coming ahead of time. All right? We got two 25 women working at K Mart. They work side by side KANABAY COURT REPORTERS 63 1 and they're cashiers. These two women have 2 something in common. They used to date the same 3 guy. They didn't know each other was dating the 4 same guy. Now they do not like each other. 5 They don't like each other at all. 6 Day by day they sit there gritting their 7 teeth ringing their customers out. Well, 8 cashier number one sees cashier number two stick 9 some merchandise in her purse. Cashier number 10 one goes to the manager and says, "She's got 11 merchandise in her purse." Now, the manager 12 knows there is this hot history between the two. 13 With nothing more, nothing more -- 14 MR. DEVLAMING: Judge, I'm going to 15 object and ask to approach. 16 THE COURT: Please. 17 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 18 MR. DEVLAMING: Normally I don't like 19 to object to in voir dire, but I see where 20 she's heading. She's trying to get the jury 21 to precommit to a certain aspect of this 22 case and, that is whether or not -- I 23 imagine whether or not they would discredit 24 or hold it against somebody with use of this 25 hypothetical, and I think it is more towards KANABAY COURT REPORTERS 64 1 preconditioning of the jury than it is 2 towards getting an honest answer. 3 THE COURT: Is that where you're 4 headed? 5 MS. WARDELL: I'm heading with just 6 because the two people don't like each 7 other, in terms of the intentions of 8 somebody else, is that enough to make them 9 have a problem with the case? I mean, 10 that's the whole thing about -- 11 THE COURT: Overruled. 12 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 13 MS. WARDELL: Okay. So, Miss Lepley, 14 you're the manager. Based solely on cashier 15 number one, who you know has a contentious 16 relationship with cashier number two, do you 17 believe cashier number two has done 18 something wrong? 19 PROSPECTIVE JUROR LOVELY: Are you 20 talking to me? 21 MS. WARDELL: Yes, ma'am. 22 PROSPECTIVE JUROR LOVELY: Okay. My 23 name's Lovely. 24 MS. WARDELL: Oh, I'm sorry. 25 Miss Lovely. KANABAY COURT REPORTERS 65 1 PROSPECTIVE JUROR LOVELY: Okay. What 2 was -- sorry. What was the question again? 3 MS. WARDELL: Okay. The two cashiers 4 clearly dislike each other. The manager 5 knows it. You're the manager. 6 PROSPECTIVE JUROR LOVELY: Okay. 7 MS. WARDELL: Cashier number one comes 8 to you and says cashier number two has 9 concealed merchandise in her purse. Based 10 solely on the person who you know doesn't 11 like the other one telling you that, do you 12 believe it? 13 PROSPECTIVE JUROR LOVELY: Well, I 14 presume you're asking me this because you've 15 seen what my husband does for a living. 16 MS. WARDELL: No, ma'am. Is he -- 17 PROSPECTIVE JUROR LOVELY: He is a 18 retail manager. 19 MS. WARDELL: Oh, well then, good. You 20 were a good person -- 21 PROSPECTIVE JUROR LOVELY: I know that 22 he would question them about it. 23 MS. WARDELL: He would do something 24 more? 25 PROSPECTIVE JUROR LOVELY: He would KANABAY COURT REPORTERS 66 1 just question them. 2 MS. WARDELL: Okay. And, Miss Lepley, 3 I'm sorry. I was -- I got my boxes off. 4 Same question to you. Based solely on the 5 word of the cashier who dislikes the other 6 cashier, do you believe it? 7 PROSPECTIVE JUROR LEPLEY: I would 8 agree, I think you need to go ahead and 9 investigative and find out whether she does 10 have this and talk to her. 11 MS. WARDELL: You would like some 12 corroboration? 13 PROSPECTIVE JUROR LEPLEY: I would, 14 uh-huh, yes. 15 MS. WARDELL: What if you, yourself, 16 went to the purse and saw the concealed 17 merchandise? Would that make you feel 18 better about it? 19 PROSPECTIVE JUROR LEPLEY: I don't 20 think you could go into the person's things. 21 MS. WARDELL: Well, taking all those 22 outside issues, you have the purse and you 23 see the merchandise. Would that be your 24 independent corroboration? 25 PROSPECTIVE JUROR LEPLEY: I think so. KANABAY COURT REPORTERS 67 1 I would raise the issue and talk to the 2 person. 3 MS. WARDELL: Okay. Miss Carter, same 4 question to you. You know there's a 5 contentious relationship. Are you satisfied 6 just with one pointing the finger at the 7 other, or do you want something more? 8 PROSPECTIVE JUROR CARTER: I would want 9 something more. 10 MS. WARDELL: And if you have something 11 more, is that sufficient? 12 PROSPECTIVE JUROR CARTER: Yes. 13 MS. WARDELL: Okay. Is there anybody 14 who I don't care how much evidence you have 15 against cashier two, just because cashier 16 one told you about it and you know they 17 don't like it, that's not enough? You could 18 have a confession, you could have the 19 merchandise, you could have a hidden video 20 camera, but just because cashier number one 21 who doesn't like cashier number two told you 22 about it, is that enough to let cashier two 23 go? Anybody think that? 24 Mr. Swonger, you know what I'm asking? 25 PROSPECTIVE JUROR SWONGER: Yes, ma'am. KANABAY COURT REPORTERS 68 1 MS. WARDELL: What do you think? Do 2 you let them walk just because they don't 3 like each other? 4 PROSPECTIVE JUROR SWONGER: If you go 5 on the facts and information and prove that 6 he's guilty. 7 MS. WARDELL: You want to see 8 everything? 9 PROSPECTIVE JUROR SWONGER: Yes. 10 MS. WARDELL: Okay. Is there anybody 11 that has a different opinion than that? 12 Mr. Lovett, just because they don't like 13 each other and just because this one brings it 14 to the attention of manager, is that enough to 15 let her walk? 16 PROSEPCTIVE JUROR LOVETT: No. I'm 17 like him. I need all the information. 18 MS. WARDELL: You want the see it all? 19 PROSEPCTIVE JUROR LOVETT: Uh-huh. 20 MS. WARDELL: Okay. Is there anybody 21 that has a different opinion than that? I'm 22 not going to go one by one and ask the exact 23 same question, but I hope -- and the same 24 courtesy to Mr. DeVlaming. If you do have 25 an answer that is different than somebody, KANABAY COURT REPORTERS 69 1 raise your hand and speak up. 2 Mr. Wright, same question. 3 PROSPECTIVE JUROR WRIGHT: Same. I 4 would. 5 MS. WARDELL: Consensus. Cashier one 6 alone is not enough, but let's look at the 7 other stuff too? 8 PROSPECTIVE JUROR WRIGHT: Yes. Look 9 at more information, gather the information, 10 and make a determination. 11 MS. WARDELL: Okay. 12 Darryl Strawberry's been in the press a lot, 13 and I want to talk to you about that a 14 minute. Okay? Have you all been following 15 that story? Is there anybody here that 16 hasn't somewhat followed the story? You 17 haven't? Okay. Well, basically 18 Mr. Strawberry was on probation, it was drug 19 related, and as he was leaving a meeting 20 somebody who's a known in the area -- 21 MR. DEVLAMING: Judge, I'm going to 22 object. 23 THE COURT: Approach. 24 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 25 THE COURT: I'm trying to figure out KANABAY COURT REPORTERS 70 1 where you're heading with this hypothetical. 2 MS. WARDELL: Okay. On this one the 3 crackhead drives up to Mr. Strawberry and he 4 takes a hit, maybe he's a confidential 5 informant. I'm trying to get at because the 6 crackhead is the one that provided it, 7 Mr. Strawberry shouldn't be punished. The 8 whole defense is I was set up by somebody. 9 MR. DEVLAMING: Okay. The Simmons case 10 was in the news. Defense lawyers were 11 recently shut down by talking about other 12 actual cases in order to get the jurors 13 opinions as to whether or not they agreed or 14 disagreed with certain things. I don't have 15 a problem with her -- 16 THE COURT: I'll sustain the objection. 17 I think you need to ask the question in a 18 different way. In fact, why don't you just 19 ask the question? 20 MS. WARDELL: Do you have a problem 21 with giving my example and not using 22 Darryl Strawberry's name? You know, what is 23 that thing, you put the what -- you put the 24 food in front of the mouth, what is that 25 phrase? Dangling the carrot in front of the KANABAY COURT REPORTERS 71 1 nose, do you bite? 2 MR. DEVLAMING: I'm saying you can ask 3 the question without giving the specific of 4 the Strawberry case. 5 THE COURT: Frankly, I think what you 6 ought to do is just ask the question. 7 However, I'm somewhat concerned that you are 8 going to get into the facts of the case or 9 and the method in which you would ask the 10 question may in some way create a problem 11 for you. Okay. Let's try to ask the 12 question without using Darryl Strawberry's 13 name. 14 MS. WARDELL: Let me think about that. 15 What's the Court suggested way? If you 16 found out that one of the witnesses in this 17 case is such and such, are you going to 18 object to that? No, that's not -- one of 19 the witnesses in this case is -- 20 MR. DEVLAMING: No. Don't even say it 21 that way. Then you're talking about the 22 case. I think you can ask them if you want, 23 Lydia, if they have any preconceived notions 24 about using confidential informants. That's 25 what you want to know. KANABAY COURT REPORTERS 72 1 THE COURT: Well -- 2 MS. WARDELL: I'm just trying to find 3 out if they are going to let number two go 4 because number one is just as bad as number 5 one. 6 THE COURT: Ask that question. 7 MS. WARDELL: All right. 8 THE COURT: If you find out that number 9 one is as bad as two or one is just as bad 10 as the other one, can you evaluate the 11 person's testimony the same way? 12 MS. WARDELL: Okay. 13 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 14 MS. WARDELL: Okay. I'm going to do my 15 best to convey this question without 16 bringing Mr. Strawberry into this. Okay? 17 But let's say you have the scenario where 18 number two is doing something he shouldn't be 19 doing, but he is doing that because the carrot, 20 if you will, was dangled in front of his nose by 21 number one, so you may not like number one 22 dangling the carrot, but number two bit the 23 carrot, do you think just because number one may 24 have done something you didn't wrong -- I mean 25 you didn't like and you don't care for number KANABAY COURT REPORTERS 73 1 one, would you let number two go? Mr. Ondich? 2 PROSPECTIVE JUROR ONDICH: You lost me 3 there. 4 MS. WARDELL: Yeah. All right. 5 PROSPECTIVE JUROR ONDICH: I got -- I'm 6 lost. 7 MS. WARDELL: Okay. Number one dangles 8 the carrot in front of number two. 9 PROSPECTIVE JUROR ONDICH: Okay. 10 MS. WARDELL: Number two bites. 11 PROSPECTIVE JUROR ONDICH: Okay. 12 MS. WARDELL: Number one had the carrot 13 and passed it on to number two. Does number 14 two get away with what he did just because 15 number one put I out there? 16 PROSPECTIVE JUROR ONDICH: No. 17 MR. DEVLAMING: Objection. Well, your 18 Honor, I'm going to object. I think we need 19 to go into entrapment issues and all the 20 rest of it in order for this jury to make a 21 determination about this number one and 22 number two type of scenario. 23 MS. WARDELL: Okay. I'm trying to use 24 generics. 25 MR. DEVLAMING: I don't think that KANABAY COURT REPORTERS 74 1 question can be answered effectively by any 2 of these jurors -- 3 MS. WARDELL: If we're going to argue, 4 may we approach the bench? 5 THE COURT: Approach please. 6 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 7 THE COURT: I don't understand -- 8 here's the thing. You absolutely have the 9 right to determine, to ask whether or not 10 these jurors can be fair and impartial and 11 whether or not they will automatically 12 assume that just because two people involved 13 both have some sort of -- 14 MS. WARDELL: Dirty hands. 15 THE COURT: -- dirty hands that one 16 person is not guilty and the other one is. 17 But this -- fashion a question that says 18 that. In other words, I don't know why you 19 have to have the hypo. 20 MS. WARDELL: I'm telling the hypo as 21 part of the question. 22 THE COURT: Well, the question is fair. 23 The hypo seems to be confusing everybody. 24 MR. DEVLAMING: I agree with the, 25 Judge. I think, Lydia, you can ask the KANABAY COURT REPORTERS 75 1 question the way he is telling -- kind of 2 suggesting that you ask it without giving a 3 hypothetical. 4 MS. WARDELL: If two people have dirty 5 hands, can one walk away just because the 6 other's may be dirty too? 7 MR. DEVLAMING: I'll tell you how to do 8 it to save some time. 9 THE COURT: Yeah. Go ahead. 10 MR. DEVLAMING: Well, I know what Lydia 11 is doing. I'm just going to say, to help 12 things out, the way I usually do it is I 13 will say to a jury if you have a situation 14 where two people are drag racing, which is 15 unlawful, down the road, a cop sees the drag 16 racer, however, they come to a fork in the 17 road, they're both responsible, does the cop 18 let them both go or go after one in order to 19 catch them? 20 MS. WARDELL: How is that different? 21 It's the same. 22 THE COURT: I think that's the same. 23 MS. WARDELL: I don't think it's 24 better, but I'll -- 25 THE COURT: I think that's exactly the KANABAY COURT REPORTERS 76 1 same. I'm going to overrule the Defense's 2 Darryl Strawberry argument. 3 MR. DEVLAMING: Your Honor, is the 4 Court going to allow her to use the 5 Darryl Strawberry case as well as his name 6 and talk about the facts of that case? 7 THE COURT: I'm going to let her use 8 his name. Is there something to do with the 9 facts here? 10 MS. WARDELL: No. I'm just going to 11 say that somebody offered him cocaine. 12 MR. DEVLAMING: Judge, I strongly 13 object to that. I strongly object on this 14 record that you will allow the prosecutor to 15 use an active case in this community that 16 was in the newspaper. 17 MS. WARDELL: It's not active. 18 MR. DEVLAMING: It was very recently 19 active and highly televised in the news 20 media, yeah. I object. 21 THE COURT: All right. Go ahead. 22 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 23 THE COURT: We're trying to correct the 24 PA problem. About thirty seconds here. Go 25 ahead, Miss Wardell. KANABAY COURT REPORTERS 77 1 MS. WARDELL: Okay. I promise I'm not 2 trying to confuse you, but I think I'm going 3 to go back to Mr. Strawberry because I think 4 that might simplify it a little bit better. 5 Okay? 6 Mr. Shea? 7 PROSPECTIVE JUROR SHEA: Yeah. 8 MS. WARDELL: All right. In the 9 Strawberry case an individual who is a known 10 crackhead, if you will, someone that lives 11 on the streets that had all kinds of access 12 to crack, picks up Mr. Strawberry, lights 13 the pipe and puts it in front of his nose. 14 Mr. Strawberry takes a hit off that pipe. 15 Mr. Strawberry is then punished in court for 16 what he did with regard to the person 17 putting it in front of his nose. 18 Do you think because you have somebody 19 repugnant, somebody odious, somebody off the 20 street who goes to Mr. Strawberry and says, 21 "Here, smoke this," do you think the fact that 22 somebody put it in front of his nose means that 23 he shouldn't have been punished for what he did? 24 MR. DEVLAMING: Once again, Judge, I 25 impose my objection as stated at the bench. KANABAY COURT REPORTERS 78 1 MS. WARDELL: You can answer the 2 question. 3 PROSPECTIVE JUROR SHEA: Should I 4 answer? 5 MS. WARDELL: Yes. 6 PROSPECTIVE JUROR SHEA: Yeah, I would 7 say no. 8 MS. WARDELL: You think he should be 9 held accountable for his actions and she 10 should be accountable for hers? 11 PROSPECTIVE JUROR SHEA: They're 12 independent of each other. 13 MS. WARDELL: Okay. Mr. Ezell, did you 14 understand that set of facts? 15 PROSPECTIVE JUROR EZELL: (Indicates.) 16 MS. WARDELL: Sets it right up there to 17 his nose. It's kind of hard to turn away. 18 He does what he does. Does he get off 19 because somebody else fed it to him? 20 PROSPECTIVE JUROR EZELL: No. 21 MS. WARDELL: Do you have a problem 22 with him being punished for what he did? 23 PROSPECTIVE JUROR EZELL: He should be 24 punished because he already knew that he 25 shouldn't. KANABAY COURT REPORTERS 79 1 MS. WARDELL: Okay. What about you? 2 Same question. 3 PROSPECTIVE JUROR TSIKOS: I feel the 4 same way. 5 MS. WARDELL: Okay. No matter how 6 repugnant she is for sticking it right there 7 knowing that he, you know, had these 8 problems? 9 PROSPECTIVE JUROR TSIKOS: He would 10 still have had the responsibility of taking 11 it. 12 MS. WARDELL: So you can look at the 13 two and decide, okay, you're responsible for 14 (a), you're responsible for (b), and I'm 15 going to hold you each accountable for what 16 you did, correct? 17 PROSPECTIVE JUROR TSIKOS: Yes. 18 MS. WARDELL: Anybody -- without going 19 one by one again, is there anybody that has 20 a view different than that? Is there 21 anybody that says, hold on, wait a minute, 22 you can't send somebody like that, stick 23 that up under Mr. Strawberry's nose and not 24 think he is going do that, no fair to 25 Mr. Strawberry? Anybody? Back row, KANABAY COURT REPORTERS 80 1 anybody? 2 I'm not getting much of a reaction. Let 3 me -- does everybody agree with what's been 4 previously stated, everybody's responsible for 5 their own actions and their own participations? 6 THE PROSPECTIVE JURORS: Yes. 7 MS. WARDELL: Is that a yes from 8 everybody? 9 THE PROSPECTIVE JURORS: Yes. 10 MS. WARDELL: You heard the judge talk 11 at the beginning of this case it's going to 12 involve marijuana. There's a lot of 13 different views out there on marijuana. 14 Just, you know, people think it's has 15 medicinal purposes. People think it's just 16 no big deal. 17 I want to touch briefly on some of you 18 all's views. And I don't mean to put you on the 19 spot, and if you think you're going to say 20 something that you don't want everybody else to 21 hear because of your personal situation or 22 friends that you know or something, we'll 23 approach the bench. Okay? 24 But I kind of want to get a showing of 25 hands if you sort of think that marijuana is no KANABAY COURT REPORTERS 81 1 big deal. Smoke a joint, you know, it's really 2 not worse than taking a few shots of liquor or 3 something? 4 Mr. Wicket, do you have the "no big deal" 5 marijuana view? 6 PROSPECTIVE JUROR WICKETT: I know it's 7 illegal to possess and use. But other than 8 that, no. 9 MS. WARDELL: Do you think there are 10 times it's okay to have it? 11 PROSPECTIVE JUROR WICKETT: No, because 12 it's not -- it's illegal. It's an illegal 13 substance. 14 MS. WARDELL: This is difficult 15 question because I know it puts you on the 16 spot. 17 Mr. Ondich? 18 PROSPECTIVE JUROR ONDICH: It's 19 illegal. You shouldn't have it, but in 20 certain cases -- I have a friend of mine 21 that was suffering from severe cancer and he 22 had no appetite, and he says when he smoked 23 marijuana it increased his appetite and then 24 he would eat. And that's the only time he 25 used it. I was never around when he did it, KANABAY COURT REPORTERS 82 1 so I wouldn't witness him use it or 2 anything. 3 MS. WARDELL: So would you like to know 4 the reason the person has it? 5 PROSPECTIVE JUROR ONDICH: Yeah. 6 MS. WARDELL: In other words, just 7 recreation versus does that person really 8 think in their mind there is a reason for 9 it? 10 PROSPECTIVE JUROR ONDICH: Yes. 11 MS. WARDELL: That come into play? 12 PROSPECTIVE JUROR ONDICH: Yes. 13 MS. WARDELL: That's fair. Is there 14 anybody that has that opinion? 15 Miss Scurlock? Or do you think no matter 16 what the reason is, if the law says no, then no? 17 PROSPECTIVE JUROR SCURLOCK: Well, 18 you're asking me, and I just graduated as an 19 RN. And I believe in certain instances 20 there is research now on marijuana use as 21 far as cancer patients go, and it's illegal 22 so I personally wouldn't do it, but if it 23 became legal, I, of course, would accept it 24 as drug treatment for cancer because it's 25 proven. KANABAY COURT REPORTERS 83 1 MS. WARDELL: So would you like to know 2 whether the case involved recreational use 3 versus a legitimate -- 4 PROSPECTIVE JUROR SCURLOCK: If it 5 became legal for use, then yes. 6 MS. WARDELL: All right. Okay. Is 7 there anybody that just sort of has the 8 marijuana is no big deal opinion? Anybody? 9 Hey, you know, it's just a joint. Let it 10 go. 11 Mr. Osborn, what do you think about that? 12 PROSPECTIVE JUROR OSBORN: (Indicates.) 13 MS. WARDELL: No opinion? 14 PROSPECTIVE JUROR OSBORN: No, ma'am. 15 MS. WARDELL: Okay. All right. So 16 basically, kind of the point of that is you 17 follow the law like the judge said kind of 18 whether you like it or not. So what? You 19 know, maybe a joint's not that big of a 20 deal, but the letter of the law says you're 21 not supposed to have it, so you're not 22 supposed to have it? Can everybody agree to 23 that? 24 THE PROSPECTIVE JURORS: Yes. 25 MS. WARDELL: Now, I always use the KANABAY COURT REPORTERS 84 1 example of it's against the law to ride down 2 the sidewalk on a Wednesday in red socks, 3 and somebody sees the man on the sidewalk on 4 his bicycle in red socks. Okay? Well, it 5 may be kind of dumb, but if that law was on 6 the books, would you convict him? 7 Mr. Swonger? 8 PROSPECTIVE JUROR SWONGER: I agree 9 with Mr. Andrews, we're not going to change 10 the law here. You go through Tallahassee. 11 MS. WARDELL: That's an important 12 point, you know. No matter what your views 13 on whether marijuana should be legalized or 14 allowed for medicinal purposes, today's not 15 the day to argue that point. Today's a 16 pretty black and white day. Either he did 17 or didn't possess. That's the bottom line 18 here. 19 I want to ask you, each of you, if you have 20 heard the phrase "keep your eye on the ball." 21 Miss Carter, keep your eye on the ball, have you 22 heard that phrase? 23 PROSPECTIVE JUROR CARTER: Yes. 24 MS. WARDELL: Does anybody here have 25 children in little league? KANABAY COURT REPORTERS 85 1 PROSEPCTIVE JUROR LOVETT: Yes. 2 MS. WARDELL: Okay. Mr. Lovett. You 3 ever gone to watch them play? 4 PROSEPCTIVE JUROR LOVETT: I coach. 5 MS. WARDELL: You coach them. You ever 6 notice one of them may be out there in left 7 field and he's sort of drifting and he is 8 kind of looking at the stands and maybe 9 thinking about, you know, the cotton candy 10 that he would rather be having, and you tell 11 him get back in the game, get your eye back 12 on the ball? 13 PROSEPCTIVE JUROR LOVETT: Yes. 14 MS. WARDELL: Is that something you 15 have to tell them quite often? 16 PROSEPCTIVE JUROR LOVETT: No. 17 MS. WARDELL: Anybody else have kids 18 here in little league? 19 PROSEPCTIVE JUROR LOVETT: I say on my 20 team, no. 21 MS. WARDELL: Oh, you keep their 22 attention focused? 23 PROSEPCTIVE JUROR LOVETT: Yes, ma'am. 24 MS. WARDELL: And you tell them that, 25 keep your eye on the ball, stay in the game, KANABAY COURT REPORTERS 86 1 let's get your head straight? 2 PROSEPCTIVE JUROR LOVETT: Yes, ma'am, 3 definitely. 4 MS. WARDELL: Miss Carter? 5 PROSPECTIVE JUROR CARTER: Yes. 6 MS. WARDELL: Do you coach or just go 7 and watch? 8 PROSPECTIVE JUROR CARTER: Just watch. 9 MS. WARDELL: Ever notice one of them 10 out in the outfield and you sort of have to 11 go to get them back and remind them what the 12 focus is? 13 PROSPECTIVE JUROR CARTER: Yes. 14 MS. WARDELL: Same thing like with 15 dance classes, or, you know, maybe you're 16 sitting at a seminar and the lecturer's up 17 there and you're like, whoa, and you have to 18 remind yourself, whoa, I got to pay 19 attention to what's going on. Okay? 20 So I just ask that each of you promise me 21 that you will keep your eye on the ball here and 22 stay in the game and not lose the forest for the 23 trees, so to speak, and let some things distract 24 you. Okay? 25 The judge talked to you about sympathy, so KANABAY COURT REPORTERS 87 1 I'm not going to repeat that. Oh, I know one 2 question. 3 Miss Scurlock, do you know Yolanda Gonzales 4 with R'Club? 5 PROSPECTIVE JUROR SCURLOCK: I don't -- 6 the name doesn't sound familiar. 7 MS. WARDELL: She had a case that I was 8 involved in. I just wanted to make sure she 9 didn't discuss that with you. 10 PROSPECTIVE JUROR SCURLOCK: Oh, no. I 11 don't -- they're all different. I'm at the 12 Exceptional Ed. Center. So we are totally 13 different. 14 MS. WARDELL: All right. So you never 15 talked to her about anything she had to do 16 here? 17 PROSPECTIVE JUROR SCURLOCK: No. I 18 don't know. 19 MS. WARDELL: Is there anybody that's 20 had friends or family members recently 21 involved with the court system? I wrote 22 down a couple. I'm sorry. 23 Mr. Ondich? 24 PROSPECTIVE JUROR ONDICH: I'm in it 25 now with my wife. She -- we're going after KANABAY COURT REPORTERS 88 1 a child support case, and we spoke to our 2 attorney yesterday and I asked him and he 3 said it doesn't really matter that I do. 4 But since you asked that question she, is 5 involved. I am not really involved. I just 6 go to support her, and they said they're 7 supposed to get back to us today about 8 setting a judgment. 9 MS. WARDELL: Do you actually come 10 down -- 11 PROSPECTIVE JUROR ONDICH: I've never 12 been here before. 13 MS. WARDELL: So you haven't been here. 14 Is the State involved with DCF or any of 15 those folks involved with it? 16 PROSPECTIVE JUROR ONDICH: I really 17 truly don't know. 18 MS. WARDELL: Okay. 19 PROSPECTIVE JUROR ONDICH: I stay out 20 of it because it's her deal. 21 MS. WARDELL: There is nothing about 22 that that might make you harbor some