419 1 IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA 2 CASE NO. CTC01-00101MMANO-E 3 4 STATE OF FLORIDA ) ) 5 V. ) VOLUME IV ) 6 JESSE PRINCE, ) ) 7 Defendant. ) ) 8 컴컴컴컴컴컴컴컴컴컴컴컴컴�) 9 PROCEEDINGS: Jury Trial 10 BEFORE: Honorable Michael F. Andrews 11 Judge of the County Court 12 DATE: May 24, 2001 13 PLACE: Division E Criminal Justice Center 14 14250 49th Street North Clearwater, FL 34620 15 REPORTED BY: Jennifer Fleischer, RPR 16 Notary Public - State of Florida 17 18 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� 19 KANABAY COURT REPORTERS TAMPA AIRPORT MARRIOTT HOTEL (727) 224-9500 20 ST. PETERSBURG - CLEARWATER (727) 821-3320 21 22 23 24 25 KANABAY COURT REPORTERS 420 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 421 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 422 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 423 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 424 1 P-R-O-C-E-E-D-I-N-G-S C-O-N-T-I-N-U-E-D 2 (OUT OF THE PRESENCE OF THE JURY) 3 THE COURT: I had a chance to read over 4 the proffered testimony of Mr. Frank Oliver. 5 Did you all wish to make some sort of 6 argument as it relates to it at this time? 7 This is essentially what I am told he is 8 going testify to in the hearing. It's not 9 really any different. Do you feel compelled 10 to have the proffer still, Miss Wardell? 11 MS. WARDELL: Well, I guess it depends 12 on what your ruling's going to be. If 13 you're inclined to exclude him, then I would 14 say no. If you are inclined to let him 15 testify, then I would like an opportunity to 16 voir dire him to convince you that he 17 shouldn't testify. 18 THE COURT: Well, if he's going to say 19 the same thing that's in this affidavit -- 20 not in this affidavit, but this proffered 21 testimony, I don't know the need to voir 22 dire him again. He's already been voir 23 dired. 24 MS. WARDELL: I just would like to 25 point out, like I mentioned last night, the KANABAY COURT REPORTERS 425 1 time frame that he was in the church. I 2 don't recall if that came out or not. 3 THE COURT: Well, it did come out. At 4 least it came out in the testimony, and he 5 was in the church I think until '92. I 6 believe from reading from, like, '86 to '92. 7 So it's a little more than the year you 8 said. It was seven years, my recollection 9 of the testimony to be. And he was moving 10 up through the organization. He ended up in 11 various training courses. 12 He said he took about 80 percent of the 13 courses that he was supposed to take, and then 14 he eventually became disenchanted, tried to get 15 out, and when he was getting out, he went 16 through some particular procedure about the 17 method in which he got out, and then they 18 eventually said that he was attempting to 19 secretly get out. He was basically labeled, 20 arguably, a suppressive, and then a whole bunch 21 of other stuff came in. 22 But here's the thing. It seems to me the 23 basis he is here, the reason he is here to 24 testify today, is about the fair game policy 25 itself. I had a lot of problem, frankly, of KANABAY COURT REPORTERS 426 1 whether or not he was really even able to 2 testify to that policy. He -- there are some 3 things that I don't find his in this testimony 4 to be relevant. 5 He talked a lot about what punishment 6 people within the organization would receive. 7 Why that is at all relevant to this criminal 8 case I cannot see. So someone maybe will get an 9 opportunity to tell me that. 10 And he also talked about how it is that 11 there are legal and illegal things to be done to 12 anyone who was supposed to be a critic of the 13 organization, except that when he was pressed on 14 that by Mr. Tyson, the only example he could 15 give was of some woman apparently, allegedly at 16 least, was set up by the organization in the 17 '70s. No other examples did he give. 18 I'm not prepared to find that either as 19 anything he can testify to, because he said, "I 20 never did anything illegal." He gave no 21 examples of anything that he knew of or that any 22 organization or anyone in the organization 23 ordered to be done illegally other than one case 24 in the 70s, which is remote, and which no one at 25 this point in time, at least that I know of, can KANABAY COURT REPORTERS 427 1 provide the Court with any evidence to establish 2 that the church of Scientology did set her up 3 and that it was proven that the young lady was 4 set up at all. So again, he is not going to be 5 able to testify to that either today unless I 6 get something more. 7 He also talked about signing the so called 8 nondisclosure form. I'm not -- I don't see 9 where the nondisclosure form finds itself 10 relevant to the question of whether or not the 11 defendant in this case was set up. I'm not 12 prepared to let him testify to that either. 13 He talks about particular methods of -- he 14 was looking at videotape. Apparently there was 15 some videotape in the last case involving 16 Mr. Minton, and he looked at some videotapes. 17 Apparently there were many more videotapes than 18 even the ones that he looked at. 19 But he looked at some videotapes and was 20 able to, from his looking at the videotapes, 21 say, "This is the way that Scientology does it," 22 except he ends up being pressed on that very 23 issue by Mr. Tyson when Mr. Tyson asked him 24 if -- it was a rebuttal question, and he was not 25 able to say, okay, well, that is something that KANABAY COURT REPORTERS 428 1 is done. One second. 2 Oh, yeah. Someone would use a laser 3 pen and put it in your face. Would that be 4 fair game? Well, that apparently doesn't 5 qualify as fair game. He obviously then 6 would know exactly apparently what the 7 training was as it was as it relates 8 particularly to fair game that this is what 9 you do and don't do as a part of fair game. 10 And the question is assuming that this so 11 called fair game policy still existed, is it 12 from his expertise or must be it qualified that 13 when I was in the organization these are some of 14 the legal ways of doing things that I was 15 taught. 16 Because based upon what he says in his 17 proffered testimony, he wasn't taught to do 18 anything illegal that I have seen. Now, if 19 somebody can point out to me where he said that 20 he was taught to do something illegal, he 21 specifically states he was not. 22 So unless there is going to be some 23 argument, I am prepared to allow him to testify. 24 I'm not sure that -- unless again I would have 25 to have more argument as it relates to this, I'm KANABAY COURT REPORTERS 429 1 not prepared to qualify him as any sort of an 2 expert as it relates particularly to the Church 3 of Scientology and any particular tactics that 4 the church has. 5 But he can surely come to court and testify 6 that when he was a member of the Church of 7 Scientology that he was a part of the OAS I 8 think was the acronym -- OSA was the acronym 9 that was attached to the organization, and that 10 under that there was some particular training 11 that was given as to how to address people who 12 were I think the term is "suppressive" toward 13 the organization, those who left the 14 organization, and that harassment was surely one 15 of the tactics -- legal harassment was surely 16 one of the tactics that the organization was 17 apparently prepared to participate in, and 18 through his training that was some of it. 19 But illegal tactics of the organization 20 there is nothing that I have seen that qualifies 21 him to testify to that, or to suggest even that 22 the organization involves itself in illegal 23 tactics. And I'm not prepared to let him 24 testify to the penalties that people who leave 25 organization suffer or, for that matter, any KANABAY COURT REPORTERS 430 1 other penalties that people within the 2 organization may receive. 3 Millions of dollars and nondisclosure 4 forms, again I don't find any of that to be 5 relevant. 6 MR. DEVLAMING: Judge, frankly, I do 7 agree with the Court in one respect. The 8 Minton case was a bit different, and he 9 watched the manner in which that actual 10 offense took place, and then he described 11 how the organization in that case would 12 place a person to be able to in a 13 regimented, predetermined way, set up 14 Minton. I'm going agree with you. I don't 15 think that is present here. So I will stay 16 away from it. 17 MS. WARDELL: And all other areas that 18 you just outlined. 19 MR. DEVLAMING: Well, yeah, the 20 Court's -- let's see. The Court did 21 indicate to stay away from the nondisclosure 22 forms. 23 THE COURT: Essentially no testimony 24 about alleged punishment that people within 25 the organization received for whatever KANABAY COURT REPORTERS 431 1 reasons. I don't find it relevant. The 2 nondisclosure forms, again I don't seem to 3 see the relevance in that. 4 Anything that is allegedly illegal that the 5 organization does, setting up people, frankly, 6 is -- he cannot give an example of that. So 7 illegal operations that they allegedly conduct 8 on people, he can't testify to that because I 9 don't see anything that says that. 10 He can testify to the legal forms of 11 harassment that he was taught through the 12 organization to address so called suppressives, 13 and that's where I'm prepared to limit his 14 testimony. 15 MR. DEVLAMING: Okay. Judge, 16 Mr. Oliver's in the courtroom since no 17 testimony's being taken. I think he's 18 heard -- oh, is he out? Oh, I'm sorry. He 19 is out. We'll have to tell him. 20 THE COURT: Inform him of that. 21 MR. DEVLAMING: Yes, sir. 22 THE COURT: Okay. Now, having said 23 that, do you still feel compelled to have 24 proffered testimony? 25 MS. WARDELL: As long as it's limited, KANABAY COURT REPORTERS 432 1 but I still want to again argue that even 2 the limited nature that you've just pointed 3 out I still think violates 90.611 which 4 prohibits giving opinions and commenting on, 5 not just opinions, but commenting on 6 religious beliefs. 7 For him to come in and say, "When I was a 8 member, this is what I was taught as fair game," 9 that's a comment on that religion. I can't 10 bring in a Methodists to come in and say, "When 11 I went through confirmation I had a nice Sunday 12 lunch and my relatives came and we all sat down 13 and read, you know, the First Corinthians." 14 THE COURT: I read the cases that you 15 gave me. I do not find those cases to be on 16 point as it relates to the case at all. I 17 understand your argument, but that is, I 18 think, distinguishable considering the 19 circumstances of this case. 20 There is no question that this entire case 21 arose out of an investigation that was started 22 through Church of Scientology. Now, whether or 23 not the defendant had any particular 24 predisposition to use or possess marijuana, you 25 know, I'm not -- the jury will make that call. KANABAY COURT REPORTERS 433 1 But under these circumstances there is a 2 defense that is relevant to the circumstance -- 3 or let me restate that. It is relevant to the 4 defense in this case that Church of Scientology 5 did initiate this investigation, and for that 6 matter contacted the police after they found the 7 illegal -- alleged illegal substances that the 8 defendant's is accused possessing, and that 9 arguably that they even contacted the police 10 because they were not happy with the particular 11 charge that was brought forth. I find that 12 relevant, and therefore I'm going to overrule 13 your objection on that. 14 MS. WARDELL: I don't disagree with any 15 of that, Judge. I'm just saying that for 16 him to talk about the practices that he was 17 taught. I don't disagree that all of those 18 things are arguments the Defense has, they 19 have laid out, it's out there. 20 THE COURT: How do they make that 21 argument without saying that that is part of 22 the practice? 23 MR. DEVLAMING: He's already got out 24 through the private investigators and 25 through the officer that everything you just KANABAY COURT REPORTERS 434 1 said about they called you and they told you 2 what charges they wanted, they started this 3 investigation, they were behind the whole 4 thing. All of that is already out there. 5 Fair game and his interpretation of what 6 fair game is not something -- that is not 7 one of those five things that you just said 8 was his defense. 9 THE COURT: All right. 10 MS. WARDELL: All right. And then my 11 only other argument that I would ask you to 12 consider is the fact that by him doing that 13 he is, in effect, commenting on the 14 credibility of -- of, you know, a witness 15 that really isn't a witness in the case. He 16 is commenting on the credibility of the 17 Church of Scientology and it's members who 18 have directed people or not directed people 19 to do these practices. 20 THE COURT: All right. Duly noted. 21 All right. Bring them in. 22 MR. DEVLAMING: Judge, I'll tell 23 Mr. Oliver your ruling. 24 THE COURT: Please, somebody tell him. 25 (IN THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 435 1 THE COURT: Good morning. 2 THE JURY: Good morning. 3 THE COURT: I said ten. It's ten. You 4 got the truth here. Now, I have one 5 question really to ask you all. Did you all 6 follow my instructions. When I say that, 7 you didn't watch the television reports on 8 this and you did not read the paper as it 9 relates to this? Can everybody agree with 10 that? 11 THE JURY: Yes. 12 THE COURT: All right. Thank you very 13 much. We have -- we're sort of on hold for 14 a moment. 15 If you would please call your first 16 witness. 17 MR. DEVLAMING: Your Honor, at this 18 time the Defense calls Frank Oliver to the 19 stand. 20 * * * * * * * * * * * * * * * * * * * * * * * * 21 Whereupon, 22 FRANK OLIVER, 23 the Defense witness herein, being first duly 24 sworn upon oath, was questioned and testifies as 25 follows: KANABAY COURT REPORTERS 436 1 THE COURT: Please proceed. 2 MR. DEVLAMING: Okay. 3 DIRECT EXAMINATION 4 BY MR. DEVLAMING: 5 Q Tell us your name. 6 A My name's Frank Oliver. 7 Q And what city do you live in, Mr. Oliver? 8 A I live in Miami, Florida. 9 Q And what do you do for a living? 10 A I'm a graphic designer. 11 Q And could I ask your age. 12 A I'm thirty-eight. 13 Q And, Mr. Oliver, was there a time when you 14 were a member of an orgranization called the Church 15 of Scientology? 16 A Yes, I was. I joined it in 1986. 17 Q And how long did you stay within the Church 18 of Scientology? 19 A Until November of 1992. 20 Q And while you were a member of the Church 21 of Scientology, did you have any particular duties 22 and responsibilities there? 23 A In the first several years I was a member I 24 was recruited for staff and I was a tech call-in 25 officer in -- KANABAY COURT REPORTERS 437 1 Q Let me stop you because you're using terms 2 that we all don't know. You were a tech calling 3 officer. What is that? 4 A A tech call-in officer. I worked in a 5 particular division of the organization that called 6 in people that had paid for services. I called them 7 in to schedule them to do the services and to 8 possibly get them to expand their services that they 9 had purchased. 10 Q Okay. And are there two ways to go through 11 the Church of Scientology, that is, to stairstep? 12 A There is several entrance points into the 13 organization. One side of what they call their 14 bridge, you know, which is their route to some sort 15 of spiritual awareness through training, and another 16 side is through receiving of this counselling they 17 call auditing. 18 Q Okay. And did you participate in both or 19 did you participate in one? 20 A I participated in both sides. 21 Q Okay. And did you ever become a member of 22 the Office of Special Affairs of the church? 23 A In late 1989 I started assisting the Office 24 of Special Affairs within the organization that I was 25 a member of in Miami. It was called the Department KANABAY COURT REPORTERS 438 1 of Special Affairs in that type of organization. And 2 I was recruited to join staff in that department not 3 too long after that. 4 Q What is the Office of Special Affairs? 5 A It's a division within the organization 6 that handles legal matters of the organization, 7 public relations and investigations. 8 Q When you say investigations, does that have 9 anything to do with church critics? 10 A It has to do with anyone that the 11 organization deems to be an enemy, whether it be a 12 critic, someone from the outside, people who have 13 expressed a dissatisfaction with the organization, 14 anyone who they feel could jeopardize the forward 15 progress of the organization, is, you know, worthy of 16 being investigated. 17 Q Okay. And is there a term that is used for 18 such a person? 19 A Yes. A person is considered a "suppressive 20 person." It's a term within Scientology that's 21 labeled to for anyone that tries to impede or inhibit 22 the expansion, growth or activity of Scientology. 23 They're called SP's. 24 Q Are you a suppressive person according to 25 the church? KANABAY COURT REPORTERS 439 1 A According to the church. Not according to 2 anyone else I know. 3 Q Okay. And were you given any written 4 documentation by the church declaring you a 5 suppressive person? 6 A When I left in 1992 I was given a document 7 called an SP Declare which is a declaration from the 8 organization that I was now labeled by them to be a 9 suppressive person. And the reason for that was 10 because I wanted to leave the organization. That in 11 itself is, you know, enough for them declare you a 12 suppressive person. 13 Q Did they actually hand you a document with 14 this declare on it? 15 A Yes. And it lists anything that they 16 considered was my, you know, my shortcomings within 17 what I was doing. And my -- you know, the reason, 18 the crime, if you were -- you know, if I was to give 19 it a characterization, the crime that I committed to 20 earn to be declared and SP, which was that I was, 21 according to them, that I had secretly made plans to 22 leave. So because I had made plans to leave the 23 organization, that automatically made me a 24 suppressive person. 25 Q Okay. And this document which I'm going to KANABAY COURT REPORTERS 440 1 show you in a minute, was that literally given to you 2 by someone? 3 A That was handed to me by a gentleman named 4 Erik Arnette who's the -- who at that time was the 5 Director of Inspections and Reports from the Church 6 of Scientology of Miami, actually Coral Gables. 7 Q I'd like to show you what's been marked as 8 Defense Exhibit NO. 6 for identification. Is this 9 the declare that you have just testified to? 10 A Yes, it is. 11 MR. DEVLAMING: Your Honor, at this 12 time I would offer into evidence Defense 13 Exhibit NO. 6. 14 MS. WARDELL: Judge, it's hearsay. 15 MR. DEVLAMING: Judge, it doesn't go to 16 the truth of the matter asserted. It goes 17 to whether he was told that he was a 18 declare. 19 THE COURT: Then it's the matter 20 asserted. 21 MR. DEVLAMING: Pardon? 22 THE COURT: Then it's a matter 23 asserted, isn't it? 24 MR. DEVLAMING: But he just testified 25 to that. KANABAY COURT REPORTERS 441 1 MS. WARDELL: And, Judge -- 2 THE COURT: But it does go to that. 3 MR. DEVLAMING: Okay. Judge, I don't 4 think a document handed to him is a hearsay 5 document if he was given it at the time he 6 left the church. 7 THE COURT: Approach. 8 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 9 THE COURT: Can I see the document? 10 Why would that not be hearsay? It's still 11 an out of court statement being offered to 12 prove the truth of the matter asserted 13 within the statement itself. 14 MR. DEVLAMING: I think it just goes to 15 corroborate his statement that he was made a 16 suppressive person. 17 THE COURT: It's still hearsay. 18 MR. DEVLAMING: If that's the way 19 you're ruling, that's your ruling. 20 THE COURT: All right. Sustained. 21 MR. DEVLAMING: Okay. 22 MS. WARDELL: Thank you. 23 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 24 BY MR. DEVLAMING: 25 Q Mr. Oliver, do you know a man by the name KANABAY COURT REPORTERS 442 1 of Jesse Prince? 2 A Yes, I do. 3 Q And do you know him to be, according to the 4 Church of Scientology, a suppressive person? 5 A According to the Church of Scientology, 6 yes, they would consider Jesse Prince a suppressive 7 person. 8 Q Why? 9 A Because he -- 10 MS. WARDELL: Objection, Judge. How 11 can this witness comment on what the church 12 would consider another individual to be? 13 THE COURT: Sustained. 14 MR. DEVLAMING: I'll lay a better 15 predicate. 16 BY MR. DEVLAMING: 17 Q How well do you know Mr. Prince and in what 18 capacity do you know him? 19 A I met Mr. Prince a few years ago. He is a 20 member of the Lisa McPherson Trust. I know him to be 21 a good person. 22 Q What is the Lisa McPherson Trust? 23 A The Lisa McPherson Trust is an organization 24 that was established in Clearwater to expose the 25 deceptive practices and abuses of the Church of KANABAY COURT REPORTERS 443 1 Scientology. 2 Q You know what -- I'm sorry. 3 A It's an organization that helps people 4 getting out of the organization, families of people 5 that have members that were in Scientology or in 6 Scientology and want to get out, and they basically 7 provide information and assistance to these people 8 and document the abuses and report them to the 9 appropriate authorities. 10 Q Are all people within the Lisa McPherson 11 Trust declared to be suppressive persons? 12 MS. WARDELL: Objection, Judge. How 13 would he know what's the church -- 14 THE COURT: I have to sustain that 15 objection. 16 BY MR. DEVLAMING: 17 Q What is the Sea Org? 18 A The Sea Org is a organization that exists 19 within Scientology. It's a military-like 20 organization, or it's a modeled after the navy, and 21 it has rank and uniforms. And these people make a 22 billion year commitment to Scientology. They sign a 23 billion year contract that they will serve 24 Scientology lifetime after lifetime, and they're very 25 dedicated members, if I can phrase it that way. KANABAY COURT REPORTERS 444 1 Q Okay. What's the difference between a 2 Sea Org and somebody that's a parishioner, somebody 3 that goes to the Church of Scientology? 4 A Sea Org members actually live there, they 5 work there, they're entire life is completely 6 enveloped in Scientology. That's all they do. They 7 work for the organization, you know, they're there 8 24-7. There is no going home for, you know, vacation 9 or anything like that. They are just completely 10 within the organization. 11 Q Okay. While you were within the Office of 12 Special Affairs during your time in the Church of 13 Scientology, did you take any courses? 14 A Yes, I took many courses. 15 Q Okay. And who was L. Ron Hubbard? 16 A L. Ron Hubbard is the founder of 17 Scientology. 18 Q Okay. And can L. Ron Hubbard or did 19 L. Ron Hubbard make policy? 20 A Well, Mr. Hubbard wasn't alive when I 21 joined Scientology, but all the policies, all the 22 technical bulletins and everything written in 23 Scientology was written by L. Ron Hubbard. 24 Q Okay. And could his policies be changed by 25 others? KANABAY COURT REPORTERS 445 1 A Only by L. Ron Hubbard. His policies 2 specifically state that because he is the founder of 3 the organization, and, you know, the one that 4 discovered this technology, that anyone that isn't 5 him that would try and change or alter it would be 6 committing a grievous, you know, transgression 7 against Scientology. So anything that would alter or 8 change anything that L. Ron Hubbard wrote is 9 considered, you know, blasphemy I guess in 10 Scientology. No one can change what he wrote except 11 him. 12 Q Are you familiar with a policy that the 13 church had in the 1960s or at least promulgated in 14 the 1960s called fair game? 15 A I'm familiar with that policy letter, yes. 16 Q Okay. And what is it? 17 A Fair game is a policy letter which lays out 18 what is to be done and how a person deemed by 19 Scientology as suppressive, how they are to be dealt 20 with. 21 Q And how are they to be dealt with according 22 to L. Ron Hubbard's policy letter? 23 A Well, the term "fair game," you know, used 24 in common vernacular means anything that could be, 25 you know -- if something is declared fair game let's KANABAY COURT REPORTERS 446 1 say amongst people that aren't in Scientology, you 2 can go after and do something to it, and if it's 3 within the boundaries of what is accepted in 4 Scientology, that understanding is carried forth. 5 Meaning that someone that is acknowledged by the 6 organization to be fair game is subject to activities 7 against them that might otherwise, you know, not be 8 within the rules. But if that person is declared 9 fair game, then just about anything could be done to 10 them without fear of retribution to yourself. 11 Q And a person can be lied to or tricked or 12 even destroyed? 13 A That's exactly what the policy letter 14 states. 15 Q Are you familiar with that policy letter? 16 A Yes, I am. 17 Q Mr. Oliver, let me show you what in a 18 moment is going to be marked as Defense Exhibit NO. 7 19 and ask whether or not this is the policy letter 20 you're referring to by L. Ron Hubbard. 21 A Yes, it is. 22 Q Okay. And during the time that you were 23 within the Church of Scientology, do you recognize 24 that as to be an active policy employed by the 25 church? KANABAY COURT REPORTERS 447 1 A This policy is still in effect. There was 2 a subsequent policy to this that just, you know, 3 defined it for window dressing, public relations 4 purposes. It just defined the use of the term "fair 5 game." But what is done to a suppressive person, 6 that doesn't change, you know. 7 Q Okay. And does that policy letter in front 8 of you dictate what an enemy is of the church? 9 A Yes. It's -- an enemy is someone who has 10 been issued an SP order is fair game, may be deprived 11 of property or injured been any means by any 12 scientologist without any discipline of the 13 scientologist, may be tricked, sued or lied to or 14 destroyed. 15 Q And you said there was another policy 16 letter by -- what's the date than policy letter? 17 A This one is issued 16 -- excuse me, 18 18 October 1967, I believe. 19 Q Okay. Let me show you a policy letter 20 dated 21 October, 1968, marked as 21 Defense Exhibit NO. 8. Is that the policy letter 22 where you just referred to a moment ago? 23 A Yes, this is the -- I believe it's called 24 Cancellation of Fair Game. 25 Q Okay. And how did it cancel fair game? KANABAY COURT REPORTERS 448 1 A Well, it doesn't really cancel fair game. 2 It cancels the term "fair game." It depends on how 3 someone would read this what it actually said. What 4 it says, "The practice of declaring people fair game 5 will cease. Fair game may not appear on any ethics 6 order. It causes bad public relations. This PL, 7 which stands for policy letter, does not cancel --" 8 MS. WARDELL: Objection, Judge. What 9 he's doing is reading the letter, and it's 10 pure hearsay. 11 THE COURT: Sustained. 12 BY MR. DEVLAMING: 13 Q Okay. Did that -- did that exhibit take 14 back fair game or just take back the term "fair 15 game?" 16 MS. WARDELL: Objection, Judge. He's 17 in-arounding hearsay. 18 THE COURT: Overruled. 19 THE WITNESS: All this did was change 20 what it was called. It didn't change 21 anything about what was done to a person who 22 was declared an SP. 23 MR. DEVLAMING: Okay. Your Honor, at 24 this time I would offer into evidence 25 Defense Exhibit NO. 7 for identification and KANABAY COURT REPORTERS 449 1 NO. 8. 2 MS. WARDELL: Objection. Hearsay. 3 Same argument we made a minute ago. 4 THE COURT: You want to respond to 5 that? 6 MR. DEVLAMING: No. I don't believe -- 7 I believe this man is qualified to -- 8 THE COURT: Please approach. 9 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 10 THE COURT: Sorry. You say he's 11 qualified to -- your response is? 12 MR. DEVLAMING: I think he's qualified 13 to testify since he was within the 14 organization, he was taught about these 15 particular doctrines, and plus I think it's 16 a -- I'll have to grab the ruling on the 17 Chapter 90, but I also believe that it's an 18 exception to hearsay rule. These are 19 published periodicals. 20 MS. WARDELL: Judge, it's still 21 hearsay. 22 THE COURT: Here's the thing I haven't 23 heard yet. I haven't heard -- first of all, 24 I never even heard that this guy even saw 25 the fair game policy, and nor that he even KANABAY COURT REPORTERS 450 1 saw the second document that you're handing, 2 and he's already testified to it, so he 3 surely has done that. But introducing the 4 document itself, I'm not seeing it 5 authenticated. 6 MS. WARDELL: Judge, even beyond the 7 authentification (sic) issue, there's no way 8 around -- 9 THE COURT: After it's authenticated, 10 then I think then we have to get past the 11 hearsay question. 12 MS. WARDELL: Just think of it as an 13 intox form. I can't have an officer just -- 14 I can't just walk up a say, okay, here it 15 is. I've got to have it certified, I've got 16 to have it be in a public record, I got to 17 have it -- 18 MR. DEVLAMING: Let me shorten it. Let 19 me do this. I'll tell you what, let me go 20 on, hold your ruling right now, but let me 21 do that on a break and I'll provide it to 22 the Court. 23 THE COURT: Okay. 24 MR. DEVLAMING: All right. 25 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) KANABAY COURT REPORTERS 451 1 BY MR. DEVLAMING: 2 Q Mr. Oliver, these policy letters that we 3 have been discussing while you were within the Church 4 of Scientology, were they part of your training? 5 A Yes. 6 Q Were they within the materials given to you 7 by the Church of Scientology? 8 A Yes. 9 Q What were they contained within that 10 allowed you to review them as being a part of church 11 policy? 12 A They're contained in different -- in green 13 vol's, I believe. I can't cite exactly which volume 14 it is. Everything in Scientology is written in 15 certain colors. Policy is written with green ink on 16 white paper and is contained in green volumes in 17 Scientology. Things of a technical nature are red 18 ink on white paper, and they are contained in the red 19 volumes. 20 Those are referred to repeatedly in 21 Scientology when, you know, throughout your 22 normal training or in a course of a day or, you 23 know, whatever it is you're working on, when you 24 need to refer to how something is to be done you 25 refer to these policy letters. KANABAY COURT REPORTERS 452 1 They're also contained in different packs. 2 If you're working on something and -- or you're 3 working on a particular course, it will always 4 refer to a policy letter. Different policy 5 letters are required reading when you do 6 different courses, and then when you are done, 7 what they do to make sure you have an 8 understanding of the policy letter, they do 9 something called a star read checkout, which 10 they sit you down and make sure you have a full 11 understanding of the policy letter. So any 12 policy letter that's red, you really have to 13 know. 14 Q Okay. And was -- based upon your position 15 within that organization, were these policy letters 16 required for you to read, understand and know? 17 A Completely. They dealt exclusively with 18 the type of individual that I was mandated to 19 investigate as an investigations officer. 20 Q Okay. So you were part of this Office of 21 Special Affairs for a period of six or seven years or 22 during at least that time? 23 A During the time I was a member it was 24 approximately two years. A little over two years. 25 Q What years were those? KANABAY COURT REPORTERS 453 1 A Starting in late 1989 going into 1992 when 2 I left. 3 Q Did you conduct any surveillance yourself 4 on suppressive persons? 5 A Yes, I did. 6 MS. WARDELL: Objection, Judge. 7 Relevance. Outside the scope of this case. 8 Outside your previous ruling. 9 MR. DEVLAMING: Well, I thought it was 10 within it. 11 THE COURT: I think it is within it. 12 Overruled. 13 MR. DEVLAMING: Yeah, okay. 14 BY MR. DEVLAMING: 15 Q And did you personally do anything unlawful 16 during the course of your duties during that 17 twenty-four-month period? 18 A I don't believe I did anything unlawful; 19 however, I was given documents whose origins could 20 only have been obtained by unlawful means. 21 Q Did you -- did -- 22 MS. WARDELL: Judge, I would move to 23 strike. 24 THE COURT: It is stricken, and it is 25 outside what I previously ordered. KANABAY COURT REPORTERS 454 1 MS. WARDELL: And an admonition to this 2 witness to stay within the parameters of 3 your ruling. 4 THE COURT: Take the jury out. 5 (OUTSIDE THE PRESENCE OF THE JURY) 6 THE BAILIFF: The jury is out of the 7 hearing of the Court. 8 THE COURT: I want to make sure you're 9 clear about my ruling. You cannot testify 10 at all about any unlawful or illegal 11 activities that took place within the Church 12 of Scientology while you were there 13 regarding to investigating other people at 14 all. 15 Any documents that you surmise that were 16 apparently gotten as you have testified through 17 illegal means you can't testify to because you 18 don't know how those documents were gotten. So 19 you can't testify to that. Do you understand? 20 THE WITNESS: Yes. 21 THE COURT: You aren't going to talk 22 about any nondisclosure forms, any 23 punishment that people received within the 24 organization themselves for failing to do 25 things that the organization likes or does KANABAY COURT REPORTERS 455 1 not like. 2 MS. WARDELL: Judge, you said 3 specifically no examples. 4 THE COURT: He couldn't give examples. 5 That's the point I was making, so you can't 6 give an example now. You couldn't give any 7 in your previous -- well, the point is you 8 can't give any testimony at all about 9 anything illegal or allegedly illegal that 10 the church did. There's no testimony to 11 that. Are you with me on that? 12 THE WITNESS: I understand. 13 THE COURT: Thank you, sir. 14 MS. WARDELL: Judge, would the Court 15 consider instructing the jury that what he 16 said is solely based upon his opinion, that 17 there is no evidence, there is nothing to 18 substantiate the church in any way obtained 19 documents that were in any way illegal 20 manners were used? 21 THE COURT: What I will tell them is 22 you are to disregard last statement 23 regarding any documents obtained illegally 24 by the Church of Scientology. 25 THE WITNESS: May I ask a question, KANABAY COURT REPORTERS 456 1 your Honor, for clarification? 2 THE COURT: Okay. 3 THE WITNESS: In that particular 4 example, Mr. DeVlaming asked me the 5 question -- at the time when I was given 6 these documents this was part of my 7 beginnings in questioning what I was 8 involved in, and the fact that this type of 9 document that I was given, what I was shown, 10 I know to be something that a member of the 11 public cannot in any way, shape or form -- 12 THE COURT: How do you know that? 13 THE WITNESS: Well, I'm -- if I got a 14 copy of your phone records -- 15 THE COURT: What's your point? People 16 can get my phone records legally. How do 17 you know that? 18 THE WITNESS: I don't know that to be. 19 THE COURT: Then you can't say it. 20 THE WITNESS: But that was my 21 understanding. 22 THE COURT: Based on what? 23 THE WITNESS: Based on my training 24 to -- 25 THE COURT: So somebody trained you KANABAY COURT REPORTERS 457 1 that these documents have to be gotten 2 illegally? 3 THE WITNESS: We had to impersonate the 4 people who we were investigating in order to 5 obtain them, and I know that to be illegal, 6 sir. 7 THE COURT: Do you know for certain 8 that the documents that were received were 9 gotten illegally? Are you able to say for 10 certain, I mean, you had direct knowledge or 11 someone specifically stated to you, "I got 12 this illegally"? 13 THE WITNESS: If the methodology -- 14 THE COURT: No. That's a yes or no 15 question. 16 THE WITNESS: Not that particular 17 document. 18 THE COURT: Then you can't testify to 19 that. 20 THE WITNESS: Okay. I just wanted to 21 be clear. 22 MR. DEVLAMING: Okay. All right. 23 MS. WARDELL: May I have a moment? 24 THE COURT: Sure. 25 MS. WARDELL: Thank you. KANABAY COURT REPORTERS 458 1 THE COURT: Please bring them back. 2 (IN THE PRESENCE OF THE JURY) 3 THE BAILIFF: The jury is in the 4 courtroom and seated, your Honor. 5 THE COURT: Ladies and gentlemen of the 6 jury, you are to disregard the last 7 statement regarding documents that were 8 allegedly obtained by the Church of 9 Scientology through illegal means. There's 10 been no evidence of that. 11 Please proceed. 12 MR. DEVLAMING: Thank you, your Honor. 13 BY MR. DEVLAMING: 14 Q Mr. Oliver, do you know what year 15 L. Ron Hubbard died? 16 A I believe it was the day after the 17 Challenger blew up. I think it was 1986 or '85. It 18 was 1986 or '85. One of those two years. It was the 19 day after the Challenger blew up. I remember that. 20 Q After his death, can any policy letter be 21 withdrawn or cancelled that was written by 22 L. Ron Hubbard? 23 MS. WARDELL: Judge, I would object. 24 How would he have this information? 25 THE COURT: I think he'll tell us that. KANABAY COURT REPORTERS 459 1 Overruled. 2 THE WITNESS: As a member of 3 Scientology it's clearly stated on the 4 policy letters that the written word of 5 L. Ron Hubbard cannot be changed by anyone 6 other than L. Ron Hubbard. 7 BY MR. DEVLAMING: 8 Q And can you tell us whether or not there is 9 any policy within the church which would declare 10 critics as criminals? 11 A There are policy letters that state that 12 anyone who opposes Scientology should be investigated 13 for criminal activities and that they are -- if the 14 information isn't, there it can be manufactured, and, 15 you know, fed to the press. There is a particular 16 policy letter that states that. 17 MS. WARDELL: Your Honor, I would 18 object. This witness has intentionally 19 violated your order. 20 MR. DEVLAMING: Judge, I asked him the 21 question as to whether there was a policy as 22 to that term of criminals being critics or 23 critics being criminals. 24 THE COURT: Jury out. 25 (OUTSIDE THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 460 1 THE BAILIFF: The jury is out of the 2 hearing of the Court, your Honor. 3 THE COURT: Do you happen to be in 4 possession of such a policy letter? 5 MR. DEVLAMING: I think we do have a 6 copy of it. 7 THE COURT: May I see it? 8 THE WITNESS: It's in more than one 9 policy letter also. 10 THE COURT: That people have to be 11 labeled criminals? 12 THE WITNESS: Yes, sir. 13 THE COURT: And what does that mean? 14 THE WITNESS: Well, anyone who -- since 15 they believe that Scientology is the only 16 hope for mankind, anyone that would try to 17 keep that from being the truth must be a 18 criminal. It's just stated that way. 19 THE COURT: Now, I remember you saying 20 that in your previous statement. But are 21 you at this time also saying that then you 22 must do something to make that person appear 23 criminal? 24 THE WITNESS: Yes, sir. There is a 25 policy letter that says that. It says KANABAY COURT REPORTERS 461 1 manufacture -- you know, find or manufacture 2 enough evidence to prove that that statement 3 is true. There is policy letter. 4 THE COURT: All right. Fine. If you 5 are going to testify to manufacturing 6 evidence to prove the statement is true, 7 that goes against what I've already ordered, 8 and unless you've got some specific example 9 of when it is that the Church of Scientology 10 did it or how they told you to do -- because 11 you're telling me based upon what I have 12 read, you've never been ordered to 13 participate in anything illegal. 14 THE WITNESS: I thought he was asking 15 me about if there is a policy letter that 16 states that. I guess I'm not understanding, 17 sir. 18 THE COURT: I don't want you to talk 19 about anything that the church allegedly did 20 or said they were going to do to make 21 someone criminal. 22 THE WITNESS: Okay, well -- 23 MS. WARDELL: Judge, there is no way 24 that wasn't clear. We went over this on 25 more than one occasion. KANABAY COURT REPORTERS 462 1 THE COURT: I don't think I was 2 unclear. 3 MS. WARDELL: I mean, at this point the 4 witness -- what is my remedy here? I mean, 5 I don't get a mistrial. The remedy is -- 6 THE COURT: You have it there, 7 Mr. DeVlaming? 8 MR. DEVLAMING: Yes, sir. There's a 9 policy letter dated August 15, 196O, by 10 L. Ron Hubbard, page 484, that states, "If 11 attacked on some vulnerable point by anyone 12 or anyone or anything or any organization, 13 always find or manufacture enough threat 14 against them to cause them to sue for 15 peace." 16 THE COURT: That does not say that. 17 That does not say as best I can tell that 18 you should find something or create 19 something criminal on someone. 20 THE WITNESS: I believe there is 21 another policy letter that you might want to 22 look at. 23 MR. DEVLAMING: Well, there is, Judge, 24 and I -- 25 THE WITNESS: There's -- keep looking. KANABAY COURT REPORTERS 463 1 It's in there. 2 MR. DEVLAMING: All right. At this 3 point in time I'm prepared to instruct the 4 jury again. I'm telling you for the last 5 time. Are you clear now? 6 THE WITNESS: If I have a doubt, should 7 I ask you? 8 THE COURT: You should look this way. 9 THE WITNESS: Okay, sir. I just -- I 10 thought I was answering the question, and I 11 was -- 12 THE COURT: Please bring them back. 13 (IN THE PRESENCE OF THE JURY) 14 THE BAILIFF: Your Honor, the jury is 15 back in the courtroom and seated. 16 THE COURT: Ladies and gentlemen, you 17 are to disregard the last statement. At 18 this point there is no evidence that the 19 Church of Scientology ordered anyone to 20 manufacture any evidence to make someone 21 appear criminal. 22 Please proceed. 23 MR. DEVLAMING: Your Honor. 24 BY MR. DEVLAMING: 25 Q When you were in the Office of Special KANABAY COURT REPORTERS 464 1 Affairs would there be any policy about trying to 2 discredit or impeach someone that was perceived to be 3 an enemy of the church? 4 A Let me think about this for a second before 5 I answer. I'm not sure how I can answer this 6 question, and I'm not -- 7 Q Well, let's do it this way. 8 THE COURT: Mr. DeVlaming, I would ask 9 you to lead him. 10 MR. DEVLAMING: Okay. Thank you. 11 BY MR. DEVLAMING: 12 Q Was there a policy of the church that would 13 ask you to gather as a member of OSA information that 14 would lead to impeach or discredit someone that was 15 perceived to be a suppressive person? 16 A There are several policy letters that 17 instruct or -- 18 Q You can answer yes or no. 19 A I'm just trying to be -- I'm trying to 20 answer the question and not upset the Judge, 21 because -- 22 THE COURT: Your attorney is telling 23 you you can answer yes or no. 24 THE WITNESS: Yeah, there are. 25 BY MR. DEVLAMING: KANABAY COURT REPORTERS 465 1 Q There are such policy letters? 2 A Yes. 3 Q Thank you. That's all I have. 4 THE COURT: Thank you, sir. 5 CROSS-EXAMINATION 6 BY MS. WARDELL: 7 Q Sir, there's also a policy letter, whatever 8 color, that says, "Nothing in this policy letter 9 shall ever or under any circumstances justify any 10 violation of the laws of the land or intentional 11 illegal wrongs. Any such offenses shall subject the 12 offender to penalties prescribed by law as well as 13 ethics of injustice and actions," correct? 14 A I ask what your referring to specifically, 15 ma'am. 16 Q A policy. You referred to these policies 17 on direct examination. Now I want to ask you if you 18 remember that policy? 19 A Can you tell me what the name of the policy 20 is? 21 Q No, sir. I'm asking you if you remember 22 the content, that content in one of your policies 23 that you reviewed. In fact, that policy was shown to 24 you about a year and a half ago when you testified in 25 this building on another case, wasn't it? KANABAY COURT REPORTERS 466 1 A Yes, it was. 2 Q And you didn't want to remember it until it 3 was shown to you, did you? 4 A Actually, I never saw the policy letter 5 before that point, ma'am. 6 Q So why are you acting right now as if you 7 hadn't heard that when you were just shown that about 8 a year ago? 9 A As a member be the Office of Special 10 Affairs? 11 Q My question is very simple. 12 MR. DEVLAMING: Judge, may the witness 13 answer the question? 14 MS. WARDELL: The witness -- 15 THE COURT: All right. I'm going to 16 ask him -- I'm going to ask you to allow him 17 to answer the question. Go ahead. 18 THE WITNESS: There are policy letters 19 that may state one thing, and there are 20 policy letters that a member of the Office 21 of Special Affairs acts upon which are in 22 direct conflict with other policy letters. 23 BY MS. WARDELL: 24 Q Sir, that wasn't my question. My question 25 was why did you try to act like to me you hadn't KANABAY COURT REPORTERS 467 1 heard that content before when you were, in fact, 2 shown that about a year ago by the state attorney in 3 a criminal proceeding? 4 A It wasn't a policy letter that I had ever 5 seen when I was a member. 6 Q But you saw it about a year ago, right? 7 A Not when I was a member of Scientology, 8 though. 9 Q The question was you saw it about a year 10 ago? 11 A I saw it. I saw -- it was shown to me a 12 year ago if that's the answer to your question. 13 Q And it came out of one of Scientology's 14 policy books, right? 15 A Yes, it was shown to me from the 16 Scientology -- 17 Q Now, you were only a scientologist for a 18 limited time; is that correct? 19 A No, it is not correct. 20 Q Not much more than a year, year and a half? 21 A From 1986 until 1992 is more than a year 22 and a half. 23 Q Well, isn't it true you were only an active 24 member between September of '87 and January '88, you 25 look a leave of absence, and you came back in KANABAY COURT REPORTERS 468 1 February '91 to November of '91? 2 A No, that's not correct. 3 Q So that's wrong? 4 A Yes, that's wrong. 5 Q So it's to your testimony you were a 6 Scientologist for, what, two years? 7 A From 1986 until 1992. 8 Q '86 to '92? 9 A Yes, ma'am. 10 Q Okay. So you haven't had any dealings with 11 the innerworkings of the church since 1992? 12 A Not with the innerworkings of the church. 13 Q Okay. And isn't it fair to say that all of 14 your testimony today has been a comment on the 15 religious practices of the Church of Scientology? 16 A I don't believe I have said anything having 17 to do with religious practice, ma'am. 18 Q Isn't fair game one of their practices? 19 A It's not a religious practice. 20 Q Well, isn't the Church of Scientology a 21 recognized religion? 22 A By one government. 23 Q The United States of America recognizes the 24 Church of Scientology as a religion, correct? 25 A No, I believe it's the Internal Revenue KANABAY COURT REPORTERS 469 1 Service that recognizes Scientology. 2 Q That's right. Worldwide they are 3 recognized as a religion, correct? 4 A No, ma'am, that is not correct. 5 Q And -- 6 A They are not recognized as a religion 7 worldwide. In Greece I believe they are a 8 corporation there. 9 Q Let's talk about the united States of 10 America. 11 A You asked me worldwide. 12 Q Okay. Well, I'm now taking -- 13 THE COURT: Okay. Here's the thing. I 14 want you all to stop and then you start, 15 then you start and you stop, because the 16 court reporter can't take you both down. 17 THE WITNESS: Sorry. 18 THE COURT: Let's proceed. 19 BY MS. WARDELL: 20 Q In the United States where they are 21 governed by our laws, they are recognized as a 22 church, correct? 23 A I believe it's only by one agency, the 24 Internal Revenue Service. 25 Q And therefore any of their practices an KANABAY COURT REPORTERS 470 1 policies would be their religious beliefs, correct? 2 A No, I don't believe that's correct. 3 Q Now, you testified on direct that you were 4 told to do, quote, just about anything with regards 5 to somebody who is as suppressive person, but you 6 were never specifically told to do anything illegal, 7 were you? 8 A I was never told. 9 Q So that's a yes, you were never told to do 10 anything illegal by any member of the Church of 11 Scientology? 12 A I have an answer, your Honor, but I'm not 13 sure if I'm going to say something -- 14 THE COURT: Here's the question. Were 15 you ever told by a member of the Church of 16 Scientology to do anything illegal? And 17 that is the question that you should answer. 18 THE WITNESS: It relates back -- 19 THE COURT: No, I doesn't. If you were 20 told -- 21 THE WITNESS: I'm not -- 22 THE COURT: No. Listen to the question 23 and answer the question. Please repeat your 24 question, Miss Wardell. 25 BY MS. WARDELL: KANABAY COURT REPORTERS 471 1 Q You personally were never specifically told 2 to engage in an illegal practice, in other words, a 3 practice that is considered illegal by our laws not 4 by the church's laws, illegal by our laws that we all 5 abide by. You were never told to do anything 6 illegal, correct? 7 A No, I was never told to do anything 8 illegal. 9 Q Thank you. In fact, once you became a, 10 quote, suppressive person, you voluntarily chose to 11 engage in antagonistic practices against church 12 members, didn't you? 13 A Ma'am, I don't believe myself to be a 14 suppressive person. 15 Q Well, you said the church labeled you 16 suppressive, right? 17 A They labeled me suppressive. That doesn't 18 make me suppressive. 19 Q Once you were labeled suppressive by the 20 church, you yourself engaged in antagonistic 21 practices against church members, didn't you? 22 A No. 23 Q You don't consider giving them the finger, 24 which basically means fuck you, an antagonistic 25 practice? KANABAY COURT REPORTERS 472 1 A I believe it's an appropriate response to 2 something done to me. 3 Q My question was was it antagonistic? 4 A It was retaliatory. 5 Q Oh, retaliatory. Even better. So you 6 don't deny that you gave the finger to members of 7 church, correct? 8 A No, I don't deny that at all. 9 Q And you also don't deny that you took one 10 of those little pens that had a little red dot that 11 you would point and shine and you shined it right in 12 the direction at church members, didn't you? 13 A Into a camera that wasn't held in someone's 14 eyes, yes. 15 Q You shined it into the church in the 16 direction of church members, correct? 17 A I don't know if the person was church 18 member. I couldn't tell from where I was standing. 19 Q Well, you were down there -- you knew -- so 20 your testimony is that you had no idea that the 21 person you shined that laser light on was not a 22 church member? 23 A I can assume they were, but I don't know 24 that for a fact. 25 THE COURT: Miss Wardell? KANABAY COURT REPORTERS 473 1 MR. DEVLAMING: I'm sorry, Judge. 2 THE COURT: Go ahead. 3 BY MS. WARDELL: 4 Q You had reason to believe that person was a 5 church member? 6 A They might have been. 7 Q And that little light is an antagonistic 8 practice, isn't it? 9 A Being recorded -- 10 Q Sir, I'm not asking you what was done to 11 you. I'm asking about -- 12 A -- what I did to them. 13 Q My question are very simple and they're 14 designed for yeses and no's. My question was don't 15 you consider pointing a red laser beam light into 16 somebody's face or in their direction to be 17 antagonistic? 18 A No. 19 Q Now, you don't consider yourself to be 20 above the law because you're a former Scientologist, 21 do you? 22 A Not at all. 23 Q You consider yourself to be a law-abiding 24 citizen? 25 A Yes, I do. KANABAY COURT REPORTERS 474 1 Q And you don't think former Scientologists 2 should be shielded with regards to any future conduct 3 they may have? 4 A I don't understand the question, ma'am. 5 Q Just because you're a former Scientologist 6 doesn't mean that you can go out and do whatever you 7 want, commit a crime, and not be held accountable? 8 A Of course not, whether you're a former 9 Scientologist or not. 10 Q And you think you should be held 11 accountable for your actions? 12 A I believe everyone should. 13 Q Now, you mentioned that Mr. Prince was a 14 good person. Isn't it true that good people make 15 mistakes? 16 A I suppose that's true. 17 Q And isn't it true that good people can 18 violate the law? 19 A I suppose that's true also. 20 Q And you mentioned the Lisa McPherson Trust. 21 Now, that's a for-profit organization, correct? 22 A My understanding is it is, yes. 23 Q In fact, are you familiar with an 24 individual by the name of Robert Minton? 25 A Yes, I am. KANABAY COURT REPORTERS 475 1 Q Are you aware that his has personally put 2 over 1.3 million dollars into that trust? 3 A I'm not involved in the financial dealings 4 of the organization. 5 Q I didn't ask you if you were involved -- 6 A I wasn't aware, no. 7 Q I asked you if you were aware of whether or 8 not he put 1.3 million dollars into that trust. 9 A I believe my answer was no. 10 Q See Mr. Minton in the courtroom today? 11 A Yes, I do. 12 Q He is a member of that trust? 13 A To my understanding, he is. 14 Q See Stacey Brooks in the courtroom today? 15 A Yes, I do. 16 Q Is she a member of that trust? 17 A Yes, she is. 18 Q See Mark Bunker in the courtroom? 19 A Yes, I do. 20 Q Member of that trust? 21 A As far as I know. 22 Q Now, when you talked about fair game, fair 23 game really is a policy that the church has that 24 says, hey, we're going to punish, if you will, our 25 members of the church based upon our laws and what we KANABAY COURT REPORTERS 476 1 belive, correct? 2 A No. 3 Q Well, is it fair to say that while you're a 4 member of the Church of Scientology, while you're a 5 practicing member in good standing, that under fair 6 game you get treated a certain way if -- let me start 7 over. Is it true that the Church of Scientology has 8 their own internal rules with regards to how a person 9 is to be treated if they're caught doing something 10 wrong? 11 A Yes. 12 Q They like to handle things internally? 13 A Sometimes. 14 Q Okay. So, like, if there was a domestic 15 disputes between to members of the Church of 16 Scientology, they would prefer to handle it within 17 the church and through whatever means they have 18 established and not get the police necessarily 19 involved in that, correct? 20 A I have known that to be the case sometimes. 21 Q So isn't it true that all fair game really 22 means is once you leave you're not afforded the 23 protection of handling things internally within the 24 church? 25 A No. KANABAY COURT REPORTERS 477 1 Q In other words, you're now fair game to be 2 handled the way anybody else in the United States is 3 handled? 4 A No, that's not correct. 5 Q You weren't at Mr. Prince's home on May 7th 6 of 2000, were you? 7 A May 7th of 2000? No, I don't believe so. 8 That was the day before my birthday. I wouldn't be 9 at his house on -- 10 Q A simple no would suffice. Your weren't in 11 his home on August 6th of 2000, were you? 12 A Not that I can recall. 13 Q And you weren't at his home on August 11th 14 of 2000, were you? 15 A Not that I can recall. 16 MS. WARDELL: Judge, I don't have 17 anything further. 18 THE COURT: Mr. DeVlaming, any 19 redirect? 20 MR. DEVLAMING: Just a couple 21 questions. 22 REDIRECT EXAMINATION 23 BY MR. DEVLAMING: 24 Q Mr. Oliver, the prosecutor in her 25 cross-examination mentioned the fact that Mr. Minton, KANABAY COURT REPORTERS 478 1 Miss Brooks and Mr. Bunker in the courtroom are 2 members of the trust. Are they also considered 3 suppressive persons by the Church of Scientology? 4 A Yes. 5 Q And based upon your previous testimony, 6 would they be subject to this fair game law? 7 A Yes. 8 Q They could be tricked, sued, lied to or 9 destroyed? 10 A Yes. 11 Q That's all I have. 12 THE COURT: Thank you, sir. 13 Do the jurors have any questions of this 14 witness? May this witness be released, sir? 15 MR. DEVLAMING: Yes, he may. 16 THE COURT: All right. Miss Wardell, 17 do you anticipate you may need this witness, 18 or can he be released from his subpoena? 19 MS. WARDELL: He can be released. 20 THE COURT: Sir, you may step down and 21 you are free to leave at this time. 22 Mr. DeVlaming, do you have any other 23 witnesses? You need to approach? Come on up. 24 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 25 MR. DEVLAMING: I guess I just wanted KANABAY COURT REPORTERS 479 1 to tell you something while the jury is 2 here. I'm going to rest. 3 THE COURT: You're going to rest at 4 this point? 5 MR. DEVLAMING: Yes, sir. 6 THE COURT: Okay. 7 MR. DEVLAMING: So I guess you will 8 have the dialogue with my client. He is not 9 going to testify. I didn't want to rest, 10 until you had the dialogue with him, in 11 front of the jury, and then I'm going to -- 12 THE COURT: I don't intend to do the 13 dialogue in front of the jury. 14 MR. DEVLAMING: No, no, no. I meant 15 you'd have the dialogue -- 16 THE COURT: -- and then you'd rest in 17 front of the jury? 18 MR. DEVLAMING: Yes, sir. 19 THE COURT: I got it. All right. I'll 20 tell you what I'm going to do then. I'm 21 going to send them out. I'm going to send 22 them out, and then I'm going to -- I haven't 23 prepared any jury instructions because I 24 didn't know if we were going to have any 25 extra ones or any of that kind of stuff. At KANABAY COURT REPORTERS 480 1 this point it appears to me maybe we will 2 not, and so I'll just prepare the standard 3 instructions and then we'll hand them out, 4 then we'll have the charge conference and 5 bring them back. I'm going to give them a 6 good half hour. 7 MS. WARDELL: I have a rebuttal 8 witness. 9 THE COURT: You have a rebuttal? Who 10 do you wish to call? 11 MS. WARDELL: Deneen Phillips. 12 THE COURT: As rebuttal? 13 MR. DEVLAMING: Who's she going to 14 rebut? 15 THE COURT: That's what I'm getting 16 ready to ask. 17 MS. WARDELL: She is going to rebut 18 the -- 19 MR. DEVLAMING: She could have been 20 called in the State's case, but -- 21 MS. WARDELL: Let me see how I want to 22 phrase this. She is going to rebut the 23 inference that came out -- 24 THE COURT: I'm going to send the jury 25 out. KANABAY COURT REPORTERS 481 1 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 2 THE COURT: Ladies and gentlemen, you 3 get to take another break whether you want 4 to or not. I apologize for that. We 5 need -- we're going to need a little while. 6 You all got time to take a smoke, get a 7 snack. It's going to be about a half hour. 8 Okay? 9 (OUTSIDE THE PRESENCE OF THE JURY) 10 THE COURT: First of all, let me ask 11 you. Sir, I have been informed -- I'm 12 speaking to you, Mr. Prince -- that you are 13 at this time choosing not to become a 14 witness in this case. Is that correct, sir? 15 THE DEFENDANT: Yes, your Honor. 16 THE COURT: And you do understand, sir, 17 that you have the absolute right to testify 18 as a witness in this case, that it is a 19 decision that is yours and yours alone to 20 make, that you, of course, do not have to 21 testify, but you do have the right to do so? 22 You understand that? 23 THE DEFENDANT: Yes, I do, your Honor. 24 THE COURT: And you are at this time 25 choosing to exercise what is your Fifth KANABAY COURT REPORTERS 482 1 Amendment right to remain silent; is that 2 correct, sir? 3 THE DEFENDANT: Yes, your Honor. 4 THE COURT: And you're doing that of 5 your own free will? 6 THE DEFENDANT: Yes, sir. 7 THE COURT: All right, sir. Thank you 8 very much. 9 Now, rebuttal witness? 10 MS. WARDELL: Judge, Miss Phillips was 11 a witness that I believe I could not call in 12 my case in chief because she talks about 13 marijuana use through time frame of April 7 14 through August 11, over and above the dates 15 charged in the information. 16 I believed in good faith I needed to wait 17 until the, quote, door was open, if you will, 18 i.e, what the Defense was going to cross on and 19 what was going to come out from Mr. Gaston. I 20 think the fact that Mr. Gaston, you know, was 21 impeached with the plant here, the setup here, I 22 had to wait for the Defense to get in front of 23 the jury that Mr. Prince was setup. 24 And specifically she rebuts this fair game, 25 that the whole reason he was arrested was KANABAY COURT REPORTERS 483 1 because he was fair game and the church did 2 illegal things or improper things or wrongful 3 tactics to get him arrested. She will put him 4 in possession of marijuana not only on the three 5 dates that information charged, but she puts him 6 voluntarily in possession of it on other dates. 7 That directly rebuts that fair game set him up. 8 And, quite frankly, I think the Defense has 9 now opened the door to the fact that within a 10 week of these two people meeting almost two 11 years ago marijuana was introduced. Well, two 12 years ago -- 13 THE COURT: Which two people? 14 MS. WARDELL: Mr. Prince and 15 Miss Phillips met two years ago, and within 16 a week of them meeting, marijuana was 17 introduced to them by the person that 18 introduced them. Whoever introduced them 19 brought in marijuana. The fact that that 20 happened two years ago before Brian Raftery 21 was mentioned, before Barry Gaston was 22 mentioned, you know, that directly rebuts 23 fair game. 24 Not only -- not only was she doing it then, 25 but she will tell you from the time frame KANABAY COURT REPORTERS 484 1 between April 7 and August 11, even when 2 Barry Gaston wasn't in their home those extra 3 times, she and Mr. Prince smoked marijuana. And 4 that directly rebuts any inference that the 5 church is behind all this. They were doing it 6 on there own. And -- 7 THE COURT: Well, I mean -- 8 MS. WARDELL: Judge, I -- 9 THE COURT: I mean, what you're asking 10 me to do is to allow you to have her come in 11 and basically testify to all the particular 12 marijuana use that took place in the home. 13 Marijuana use as opposed to -- arguably it 14 still is marijuana possession, but I 15 think -- 16 MS. WARDELL: Well, Judge -- 17 THE COURT: Well, actually the 18 information does charge possession on the 19 dates that it was smoked, but it also 20 charges possession because these alleged 21 plants were out on the lanai. 22 MS. WARDELL: It's part and parcel. 23 THE COURT: So she is prepared to 24 testify to those plants were always out on 25 the lanai? KANABAY COURT REPORTERS 485 1 MS. WARDELL: Yes, she is. She is 2 going to say that she saw those plants as 3 early as June, and that she and Mr. Prince 4 repeatedly pulled up the smaller ones, but 5 the bigger one was intentionally left, and 6 she will tell you that on May 7 she allowed 7 Barry Gaston and the officer back to the 8 pool lanai and the marijuana plant was seen. 9 I mean -- and she'll tell you that they 10 introduced the word "joint" the first time law 11 enforcement came. That goes to the heart of 12 their defense, who brought up marijuana for the 13 first time. And if mister -- and she'll also 14 tell you that there was -- there was so much 15 marijuana to be smoked in the home that she 16 couldn't remember whether it was kept in the 17 black tin or whether it was kept in the bathroom 18 robe, things of this nature. 19 This is all fair game for the State now. 20 And she will also tell you that on one of the 21 nights some girls from Memphis Tennessee came in 22 town and they brought marijuana. So how does 23 that go back to the trust -- to a member of the 24 church setting him up, that he has other sources 25 of marijuana? KANABAY COURT REPORTERS 486 1 Now, what I think she'll also tell you is 2 that the first time she really met Mr. Gaston is 3 that he invited her at the bar out -- he invited 4 her and Mr. Prince at the bar out for a smoke, 5 and that they voluntarily went out for a 6 marijuana joint. Well, you know, that's the 7 carrot in front of his face. Nobody made him go 8 out there and smoke that joint, but I'm entitled 9 argue this after this fair game stuff. 10 THE COURT: Do you want to respond to 11 that? 12 MR. DEVLAMING: Yeah. This is clearly, 13 Judge, an attempt to be able to call the 14 last witness in this case, which means I got 15 to get Gaston back over here. This is not 16 rebuttal. She had an absolute right and 17 ability to call this witness in her case in 18 chief. This isn't rebuttal. This is 19 corroborative of Gaston; it's corroborative 20 of her other witness Crosby. There's not 21 one thing that she could testify to that 22 rebuts a witness that has testified for the 23 Defense. It's clearly outside rebuttal. 24 THE COURT: Give me the things that 25 you're rebutting. KANABAY COURT REPORTERS 487 1 MS. WARDELL: You mean the content of 2 what she could testify to? 3 THE COURT: Well, no. The various 4 testimony of the particular witnesses that 5 have already testified that her testimony 6 will now rebut. 7 MS. WARDELL: She's rebutting the 8 theory that Mr. Prince was, quote, set up. 9 That theory didn't come out until the 10 Defense put on it's case. So all this other 11 marijuana use that the Defense opened the 12 door to yesterday I could not have gotten 13 into with Miss Phillips in my case in chief. 14 I had to sit back and wait for them to talk 15 about how the church was involved, how the only 16 reason they're charged right now is because the 17 church, the church, the church. I couldn't have 18 called her in my case in chief. Almost all of 19 her testimony goes to the other marijuana use 20 that was going on. 21 THE COURT: But why couldn't you have 22 called her in your case in chief to testify 23 to the very same things that you had 24 Mr. Gaston -- actually that was in the 25 Defense's case. KANABAY COURT REPORTERS 488 1 MS. WARDELL: Right. I didn't call 2 Mr. Gaston, Judge. 3 THE COURT: Okay. Okay. Let -- just 4 let me think for a minute. All right. 5 MS. WARDELL: I could have called her 6 and then recalled her for a limited area, 7 but I thought that was -- I just didn't -- I 8 didn't think that was practical. 9 MR. DEVLAMING: Judge there's nothing 10 that Gaston has testified to that this 11 witness can rebut. She was -- 12 THE COURT: What about her argument she 13 is rebutting your defense? 14 MR. DEVLAMING: I've never heard of a 15 rebuttal witness -- rebuttal witness means 16 they're rebutting something that is said 17 during the course of the trial that 18 discredits it. You have limited my witness 19 to testify as to anything unlawful, and, in 20 fact, she's brought out the fact he has only 21 done and been instructed to do lawful 22 things. So, you know, I can't argue that 23 Frank Oliver was set up to do unlawful 24 things or to set anybody up. 25 MS. WARDELL: Judge, there is no rule KANABAY COURT REPORTERS 489 1 that says rebuttal is limited to what a 2 specific witness says. Rebuttal is for me 3 to rebut their defense. If they chose to 4 put on a case, they do so at their own 5 peril. They chose to go into fair game. 6 They chose to put out there that the church 7 was behind all this, that the only reason he 8 had possession of marijuana was because of 9 the church, but we know that ain't so, and 10 Deneen Phillips is here to say it. 11 MR. DEVLAMING: They could have called 12 her right after Crosby, Judge. And I'll 13 tell you at depositions, your Honor, that 14 she was there on every time Crosby was, she 15 was there on every time Gaston was, and they 16 could have called her. They failed to do 17 it. This is a tactical move to get the last 18 witness in this case, and it's improper 19 rebuttal. 20 MS. WARDELL: Judge -- 21 THE COURT: All right. I'll rule. 22 Thank you. I'll see you all in about -- 23 we'll have the charge conference at 24 eleven-twenty. 25 (A RECESS WAS HAD) KANABAY COURT REPORTERS 490 1 THE COURT: At this point it is my 2 intent to actually send the jury to lunch 3 and then come back after lunch. But here's 4 what I intend to do. I read the case of 5 Driscoll v. Morris, which is located at 6 114 So.2d 314. It is a Third DCA case out 7 of 1959. Yes, it is a bit dated, but it 8 does state and relevant to this issue: 9 "Generally speaking, rebuttal testimony 10 which is offered by the plaintiff is directed to 11 new matter brought out by evidence of the 12 defendant and does not consist of testimony 13 which should have properly been submitted by the 14 plaintiff in his case. It is not the purpose of 15 rebuttal to add additional facts to those 16 submitted by the plaintiff in his case in chief 17 unless such additional facts are required by the 18 new matter developed by the defendant. If the 19 proffered evidence appears to be cumulative 20 rather than rebuttal, it is within the sound 21 discretion of the judge to allow the admission 22 and the exercise of such discretion will not be 23 disturbed on appeal." It is my -- it goes on to 24 say, however, "... on appeal unless it appears 25 so prejudice -- and I imagine really so KANABAY COURT REPORTERS 491 1 prejudicial -- that the result -- a result as to 2 indicate an abuse of discretion." 3 So I want to -- I want to proffer the 4 testimony of Deneen Phillips. It is, at least 5 in my view, clear to me this was the State's 6 burden and charge here today and this is how 7 they proceeded in their case. 8 They offered the testimony of three 9 witnesses, two officers and a expert relating to 10 the drugs that were allegedly seized in this 11 case. And those experts -- the witnesses 12 testified to the day that Detective Crosby was 13 present, the sight of marijuana and or use of 14 marijuana on the dates he was present. 15 What they did not testify to was anything 16 outside of what the Detective Crosby -- and 17 really what is amounts to the confines of the 18 information in this case. It was not until the 19 Defense's case in chief that we heard about 20 other days as relates particularly to the 21 alleged use of marijuana, and on top of that, of 22 course, the following of the defendant. 23 We talked about a time line that started 24 apparently sometime at least in February and how 25 the defendant had been surveilled for quite a KANABAY COURT REPORTERS 492 1 period of time. And arguably the alleged drug 2 use didn't even start or at least didn't begin 3 until sometime around when the investigators 4 began to follow the defendant. 5 Apparently then Miss Phillips is going to 6 testify in some way to rebut those suggestions 7 that the Church of Scientology's investigators 8 were not directly involved with any planting of 9 drugs or anything because some of these things 10 can be found even before Mr. Gaston gets 11 involved in this case. 12 And what else is it that you anticipate you 13 will have her testify to? 14 MS. WARDELL: That she -- that she and 15 Mr. Prince had smoked marijuana before 16 Mr. Gaston was even introduced to them; that 17 even after Mr. Gaston was introduced to them 18 there were times that she and the defendant 19 smoked marijuana that he wasn't even around; 20 that they had other sources of marijuana, so 21 even if you believe Scientology put this 22 there somehow, they had other sources of 23 marijuana, i.e., her friends who came into 24 town that -- 25 THE COURT: Okay. For instance, that KANABAY COURT REPORTERS 493 1 one unnerves me. I'm a little concerned 2 about being able to have somebody come in 3 and testify about alleged bad acts of 4 Mr. Prince when some friends came into town, 5 about other sources of marijuana. 6 What the rebuttal evidence must 7 specifically relate to is rebutting the 8 suggestion that the Church of Scientology 9 planted or in some way set up the defendant by 10 placing in his possession marijuana, and 11 specifically or at least especially when the 12 investigators either were around or may have 13 been around. 14 And I'm trying to hear whatever rebuttal 15 testimony you offer towards rebutting specific 16 allegations that were made at least on the 17 Defense's case in chief about the operations of 18 the Church of Scientology and about a setup 19 here. 20 MS. WARDELL: The proffer is probably a 21 good idea, but on that particular occasion 22 the CI was present. The point being, the CI 23 is not the one that's always saying, Here, 24 smoke the marijuana. Their own friends 25 brought it out in the presence of the CI. KANABAY COURT REPORTERS 494 1 THE COURT: The CI was there on the day 2 the friends brought the marijuana? 3 MS. WARDELL: Yes. And, Judge, I just 4 would like to point out, although 5 technically the Defense hasn't asked for 6 the, quote, entrapment defense and they're 7 still pondering that, it's certainly come 8 up. 9 THE COURT: They can't ask for it 10 unless they actually assert it, and they 11 must prove it and they did not and they 12 haven't called a witness for that, so 13 they're not going to be able to get it. 14 MS. WARDELL: Well, they -- I think the 15 innuendo is there that he was entrapped by 16 the fact that the Scientologists, you know, 17 got in -- through Barry Gaston, got in there 18 to him. 19 And I think actually Miss -- I expect 20 Miss Phillips to testify that Barry Gaston is 21 the one that first introduced marijuana to them. 22 I don't know whether their position is of 23 bringing that out, but that certainly opens the 24 door to a lot of other areas. 25 But I was going to tell you that a KANABAY COURT REPORTERS 495 1 defendant asserting the statutory defense of 2 entrapment initially has the burden to establish 3 lack of predisposition, but as soon as the 4 defendant produces evidence of no 5 predisposition, i.e., that he was set up, the 6 burden shifts to the prosecution to rebut this 7 evidence beyond a reasonable doubt, which it may 8 do by making appropriate and certain inquiry 9 into the conduct of the defendant and presenting 10 evidence of his prior criminal history even 11 though such evidence would normally be -- 12 THE COURT: The problem is that the 13 lack of predisposition has not been 14 established and the defendant would have had 15 to take the stand in order to establish 16 that. 17 MS. WARDELL: Right. 18 THE COURT: So we're not quite there 19 and -- 20 MS. WARDELL: Not quite there, but I 21 just wanted to you to know that that's still 22 out there, but still, I mean, I think the 23 proffer it the best way to go. 24 THE COURT: What time do you want to do 25 this proffer? Is she here now? KANABAY COURT REPORTERS 496 1 MS. WARDELL: She is here. And if 2 you're ready to go forward, that's fine. 3 What I was going to say is I'll go ahead and 4 do all my questions, and I'll go slow if you 5 want to be writing them down if there's some 6 that you think are cumulative and some you 7 don't want me to do. 8 THE COURT: That's what I intend to do. 9 MS. WARDELL: Yeah. If you don't mind, 10 I would like to -- 11 THE COURT: Send the jury to lunch. 12 Ask them to be back at one-fifteen. 13 Yeah, bring her in. 14 * * * * * * * * * * * * * * * * * * * * * * * * 15 Whereupon, 16 DENEEN PHILLIPS, 17 the State's rebuttal witness herein, being first 18 duly sworn upon oath, was questioned and 19 testifies as follows: 20 THE COURT: Please proceed. 21 DIRECT EXAMINATION 22 BY MS. WARDELL: 23 Q Can you turn to the judge and introduce 24 yourself by stating your name and how you're 25 employed. KANABAY COURT REPORTERS 497 1 A I am Deneen Phillips and I am employed with 2 the Lisa McPherson Trust. 3 THE COURT: I'm sorry. With what now? 4 THE WITNESS: The Lisa McPherson Trust. 5 THE COURT: With the Lisa McPherson 6 Trust? 7 THE WITNESS: Yes, sir. 8 THE COURT: Okay. 9 MS. WARDELL: And I'm having a hard 10 time hearing you. Is your microphone on? 11 THE COURT: The mike is on. 12 BY MS. WARDELL: 13 Q If you can pull it a little closer. Okay? 14 And what is your salary with the trust? 15 A Three thousand a month. 16 MR. DEVLAMING: Judge, I'm -- well, I 17 want -- 18 THE COURT: It's a proffer. I don't 19 find it relevant, but let's proceed. 20 BY MS. WARDELL: 21 Q And you're paid by the Trust, correct? 22 A Yes, ma'am. 23 Q And it's Jesse Prince that got you that job 24 with the Trust? 25 A Yes, ma'am. KANABAY COURT REPORTERS 498 1 Q And he is Vice President of the Trust? 2 A Yes, ma'am. 3 Q He is your fiance? 4 A Yes, ma'am. 5 Q And you share a home together? 6 A Yes. 7 Q And you moved -- 8 MS. WARDELL: Judge, for purposes of 9 this, permission to lead her a little bit, 10 and I'll tailor it -- 11 THE COURT: Go ahead. 12 MS. WARDELL: Okay. 13 BY MS. WARDELL: 14 Q You moved to Florida to be with 15 Jesse Prince? 16 A Yes. 17 Q And you picked Clearwater because of his 18 job with the trust? 19 A Yes. 20 Q And you moved into a home together in 21 approximately February 25th of 2000? 22 A Yes, ma'am. 23 Q That's on Bellair Road? 24 A Yes, ma'am. 25 Q And there was an alarm security system that KANABAY COURT REPORTERS 499 1 was installed approximately a month after you moved 2 into that home? 3 A Yes, ma'am. 4 Q And that alarm worked properly? 5 A Yes. 6 Q Your pool area has two separate screen 7 doors that accesses that area from the outside? 8 A Right. 9 Q One of which had damage to it just after 10 you moved in? 11 A Right. 12 Q And that damage was noticeable and large 13 enough that somebody could actually come through that 14 screened in break, if you will? 15 A Yes. 16 Q In other words, you didn't have to open the 17 door. You could come in through the screen break. 18 the break in the screen? 19 A Yes. 20 Q Okay. And no effort was made to repair 21 that damage until recently when you had somebody come 22 out and give you an estimate? 23 A I'm sorry? 24 Q No effort was made to repair the damage to 25 the screen door until you recently had somebody come KANABAY COURT REPORTERS 500 1 out and give you an estimate? 2 A Right. 3 Q I want to talk about an individual you 4 believe to be named Rinzy Trinidad. You first met 5 him at Wilson's bar. You don't recall the date; is 6 that correct? 7 A Right. 8 Q And you're not sure who approached who, but 9 it was a friendly conversation, very brief, correct? 10 A He spoke and we walked out the door. 11 Q Right. It was very brief? 12 A Yes. 13 Q You didn't exchange names or phone numbers 14 at that point? 15 A I don't remember. 16 Q Okay. And let's skip to the second visit. 17 This would again have been at Wilson's Lounge when 18 you ran into him, correct? 19 A Right. 20 Q And he was friendly? 21 A Uh-huh. 22 Q And you kind of hung out and played pool, 23 socialized? 24 A Right. 25 Q There came a point in time where you went KANABAY COURT REPORTERS 501 1 out the back door to smoke marijuana with him, right? 2 A Right. 3 Q And Jesse Prince went too? 4 A Uh-huh. 5 Q You were -- is that a yes? 6 A Yes. 7 Q You were invited out back for the purpose 8 of smoking marijuana? 9 A Yes. 10 Q And you knew that purpose when you went out 11 back? 12 A Yes. 13 Q And Mr. Prince was present when you were 14 invited to go out back, correct? 15 A Yes. 16 Q And you two knew the purpose was to go out 17 and smoke marijuana? 18 A Yes. 19 Q And you, in fact, smoked marijuana? 20 A Yes, ma'am. 21 Q Out back at Wilson's Lounge? 22 A Yes, ma'am. 23 Q And Jesse smoked some marijuana out back at 24 Wilson's Lounge? 25 A Yes, ma'am. KANABAY COURT REPORTERS 502 1 Q The joint was passed back and forth? 2 A Yes. 3 Q Now, a patron at the bar actually handed 4 Mr. Prince a baggie of marijuana, correct? 5 A Right. 6 Q And he took it? 7 A Yes. 8 Q It was not Rinzy Trinidad that handed him 9 this bag of marijuana? 10 A No, it was Rinzy's friend. 11 Q A person you believed to be his friend? 12 A Yeah. 13 Q Because you saw him at the bar? 14 A No, he knew everybody in the bar, so -- 15 Q Right. 16 A -- it was his friend. 17 Q The person that gave the marijuana was at 18 the bar? 19 A Yes. 20 Q But you haven't seen him since, right? 21 A No. 22 Q Only saw him that one night? 23 A Right. 24 Q Okay. Now, following this smoke outside of 25 Wilson's bar, you allowed Rinzy Trinidad to follow KANABAY COURT REPORTERS 503 1 you to your home, correct? 2 A Right. 3 Q And you actually invited him from the bar? 4 While at the bar you actually invited him to your 5 home? 6 A Yes. 7 Q And once at your home you shared drinks? 8 A Right. Him, his girlfriend and Jesse and 9 I. 10 Q And you smoked another joint? 11 A Yes. 12 Q Mr. Prince smoked that joint too? 13 A Yes. 14 Q And I know you don't know the exact date, 15 and that's okay, but this is prior to what you now 16 know to be law enforcement coming to your home with 17 Mr. Trinidad, right? 18 A Right. 19 Q And this joint that was smoked was actually 20 rolled from loose marijuana, right? 21 A Right. 22 Q And do you recall where you got the papers? 23 A They were -- we had them. 24 Q In fact, Mr. Prince is the one that came 25 out with the rolling papers, correct? KANABAY COURT REPORTERS 504 1 A Yes. 2 Q And you had those rolling papers because 3 occasionally you and Mr. Prince would smoke 4 marijuana, correct? 5 A Very seldom. 6 Q Well, you previously have given a 7 deposition in this case just a few days ago, right? 8 A Right. 9 Q And in that deposition you testified -- 10 page 38, Counsel -- that you had the marijuana 11 rolling papers because you and Mr. Prince 12 occasionally smoked marijuana? 13 A Yes, very occasionally, very rare. 14 Q Okay. And this was before you ever met 15 Trinidad, right? 16 A Right. 17 Q In fact, you smoked marijuana within a week 18 of meeting Mr. Prince when you met him back in 19 Tennessee for the first time? 20 A Right. 21 Q And the person who provided that marijuana 22 to you had nothing to do with Rinzy Trinidad? 23 A No. 24 Q He was actually a friend of yours? 25 A Yes. KANABAY COURT REPORTERS 505 1 Q And you have no reason to believe that 2 friend is in any way associated with the Church of 3 Scientology? 4 A Correct. 5 Q Okay. The night that you allowed Trinidad 6 to come to your home, you actually took him out to 7 the pool area to smoke the marijuana? 8 A Him and his girlfriend, right. 9 Q Okay. And that was -- there's three ways 10 to get to the pool from your bedroom? 11 A From my -- sorry? 12 Q I'm sorry. Three ways to get to the pool 13 from the inside of your house? 14 A Right. 15 Q The bedroom, the living room and the 16 kitchen? 17 A Right. 18 Q And all of those are sliding glass doors? 19 A Yes. 20 Q And it was in the pool area where you 21 smoked the marijuana? 22 A Yes. 23 Q And your next contact with Mr. Trinidad 24 would have been about a week and a half later? Maybe 25 a week later? KANABAY COURT REPORTERS 506 1 A Maybe. 2 Q Okay. If at any point you want to refresh 3 your memory by referring to your deposition, that's 4 absolutely fine. Just tell me you need to take a 5 minute. But you previously stated a few days ago 6 that it was about a week, maybe a week and a half, 7 between the two visits. 8 A Right. 9 Q Okay. And on this visit he actually 10 brought alcohol to your home? 11 A Yes. 12 Q And again marijuana was smoked, correct? 13 A Yes. The marijuana that his friend gave 14 us. 15 Q And Mr. Prince smoked that, right? 16 A Yes. 17 Q And you smoked it? 18 A Yes. 19 Q And Trinidad smoked it? 20 A And his girlfriend, yes. 21 Q The girlfriend came again? 22 A The day that he brought the liquor we were 23 in the bed and he came by just ready to, as usual, 24 ready to just hang out. 25 Q Okay. And on that particular occasion do KANABAY COURT REPORTERS 507 1 you recall where the marijuana was retrieved from? 2 A Yes. 3 Q Where? 4 A It was out of a little can. 5 Q And who went and got it? 6 A I believe I did. 7 Q You believe you did? 8 A I'm not sure. 9 Q Could you have previously stated at the 10 May 18th deposition that Mr. Prince went and got it 11 from the black tin? 12 A Maybe. I'm not sure. I am not totally 13 sure. 14 Q Do you have the deposition in front of you? 15 A No, ma'am. 16 Q Do you have a copy handy. 17 A No, ma'am, not handy. 18 MS. WARDELL: May I approach the 19 witness, Judge? 20 THE COURT: You may. 21 BY MS. WARDELL: 22 Q I would direct your attention to page 44 23 and ask you if you recall whether you previously 24 stated that Mr. Prince went and got the loose 25 marijuana from a black tin. KANABAY COURT REPORTERS 508 1 A I think that they also told me that I had a 2 nine-year-old and an eleven-year-old. I was very 3 nervous. 4 Q Did you want to correct the ages? 5 A Yes. You know, I was just nervous. I'm 6 using that, you know, to let you know how nervous I 7 was that day. So I can't just tell you. It was so 8 long ago. 9 Q All right. 10 A So -- 11 Q I missed the significance of the nine- and 12 eleven-year-old. Just because you gave the wrong 13 ages and you want to correct that now? 14 A Yes. One is ten and one is fourteen. 15 Q Okay. 16 A It's just I said that to say, you know -- 17 Q I understand. 18 A -- I can't stick to this. You might. I 19 know you can, but, you know -- 20 Q That was just one statement, correct? 21 A Right. 22 Q And I want you to turn to page 44 and check 23 and see whether or not you told me that Mr. Prince 24 went and retrieved the marijuana from a black tin? 25 A Yes, ma'am, that's what I told you. KANABAY COURT REPORTERS 509 1 Q And who rolled that joint? 2 A I believe I did. 3 Q Okay. Again, I'm going you direct you to 4 page 45. Did you previously state that Mr. Prince 5 rolled that joint? 6 A Okay. Yes, ma'am. 7 Q Does that refresh your memory? 8 A Yes, ma'am. 9 Q And with regards to that marijuana that was 10 smoked on that visit with Trinidad -- and again, I 11 know you don't have your dates, but that visit is 12 what I'm talking about -- did you also previously 13 state that you got the marijuana from your coat 14 pocket? 15 A I got the marijuana from my coat pocket the 16 first day he came back to smoke marijuana. 17 Q Okay. 18 A Because it was in there from that time on. 19 And I got it out of -- 20 Q I'm asking you with regards to this 21 visit -- 22 A With the liquor. 23 Q The second visit with the liquor. 24 A Uh-huh. 25 Q Did you previously state that on that visit KANABAY COURT REPORTERS