mombomb
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SIDEBAR #11 (2:21-2:26)
HHJBP: Okay, who will be the state's witness? Alina Burroughs.
JA: First witness will take 30 seconds. Second witness will be Michael Vincent and his examination of State's Exhibit 322. His testimony will be that the odor in the can will be the same as that in the trunk, but with less intensity.
JB: I think the court needs to evaluate what this is in rebuttal of.
JA: Furton's statement that the odor in the trunk came from the trash. I feel the Jury is going to want to smell the evidence. As they passed around the garbage, one or two of the jurors smelled it. They are going to want to do it and we are going to need to determine how to do that and part of the predicate is that the smell in the can is the same as the car. Doesn't know if the Court will allow them to smell. Obviously the testimony is permissible, but doesn't know if the court wants to address the next issue.
JB: Dr. Furton was asked specifically if he had smelled the trash or the carpet.
JA: The defense going to concede that the odor in the car came from the trash? We know they won't.
HHJBP: How many witnesses did you put on that said it was human decomp?
JA: At least 4 or 5. Each witness was cross examined vigorously. I anticipate the defense is going to continue to convince the jury that the smell came from the garbage.
HHJBP: Isn't that a jury question since you have had Furton say it was not and a fair number on the other side saying it was human decomp. Dr. Vass who smelled it and it was the odor of decomp and his testing also said that. Trying to figure out what it rebuts.
JA: It rebuts the direct testimony that the odor is from the trash. What are we going to do when the jury asks to smell the can.
HHJBP: Do you want the jury to open the can up in the jury room and smell it?
JB: I would ask the court to review Huff and Clark.
JA: Huff issue - a single juror gaining experience with an item and telling other jurors what it is. These cases do not hold for the proposition that the jurors can't use their sense of smell on the evidence. I can find no legal support for the proposition that they can't. Decker v Knowles involving a situation where the jurors on their own during deliberation smelled some marijuana evidence that was placed before them and the question was whether or not it was improper. The partial holding of the court was that the jurors use of smell was not improper. Washington v Fairbanks - a case in which the issue was the prosecutor in a marijuana case - issue about officers testifying that the odor of fresh marijuana had an odor they could recognize. The prosecutor brought in a bag of fresh marijuana as a demonstrative exhibit - the court indicated this was appropriate. There are legions of cases from the twenties and thirties involving prohibition where juries were permitted to smell and taste. He can't find anything that would prohibit the jury from smelling it. If they want to, then they each must smell it individually to avoid Clark. Mike Vincent's testimony...
JB: JA did not understand jury instructions. Your Honor told the prosecutor if they wanted to do this, then they would need specific case law to do it. We have an unusual situation. The court was clear during jury selection what the jury was and had instructed the prosecution to provide something and they did not. Now they want to try again. The first time in the State of Florida the Jury should smell something and become witnesses to the smell of decomp. He does not know which jurors know the smell of decomp. We can't start changing the rules. Also, under the Fairbanks case, the Defense opened the door and there is no such situation in this case.
HHJBP: The Court raised this issue in jury selection and the Court called everyone's attention to Smith v State - a 1948 decision - where they said - the question is not a new one. It has been before this court a great many time and has been a cause of reversal over a long period of time. The court of criminal appeals condemns the practice of having the jurors smell or taste whiskey because it calls upon them to become witnesses and when a juror stated during deliberation that it smelled like whiskey - that becomes new evidence received. Also Decker v Knowles and that there was a case out of the Supreme Court of New Mexico - which said you could do it and it was a case dealing with the smell of alcohol, commonly known as whiskey/beer which was traditionally within the realm of beer or alcohol would smell like. There are two cases in Florida that have sort of dealt with this issue - jury experimentation. The latest case comes from the Florida Supreme Court - Lynch v State - a case that was a death 3851 case presided over by O.H. Eaton. The defense found fault with Judge Eaton of going back and looking at an item of evidence which was a Glock weapon and the Judge was trying to see if what the firearms expert was consistent with his manipulation of the weapon. The Court drew a narrow distinction because it was a non-scientific conclusion. In Lynch there was a site - Castillo v Vision Health - talking about so-called jury experimentation. Trial court did not abuse discretion in a med-mal case when a surgeon left fragments of sponge in an eye in allowing a deliberating jury to replicate a demonstration done by a defense expert in trial in which an expert had placed a sponge in water to show how the sponge expanded. What they concluded was that a demonstration of a demonstration in court, was not new evidence.
If the jury is allowed to go back and open up a can, why would they be doing that? (SIT DOWN JA - I'M NOT FINISHED TALKING) Are we asking them to determine if it is trash or the scent of a decomposing body when in Jury selection there were about 3 or 4 potential jurors who had smelled the odor. He can't remember if any of those are on the jury. How would the Defense be able to cross examine that particular juror or determine what sway that juror would have on the other jurors. To permit them to smell and the one who had experience to say that was the odor of decomp would be new extrinsic evidence and would violate ICA's due process rights and 6th amendment right.
The Court finds that evidence will not go back to the Jury even though all items of evidence are supposed to. The Court will exercise it's discretion and will not allow any smell test by jurors. There has been ample testimony - cutting edge/voodoo testimony.
The testimony of Detective Vincent is not rebuttal and will not be permitted.
LDB: e could introduce some photos and documents and then deal with the issue with the Gentiva records for the balance of the day and take care of that in the morning.
HHJBP: Okay, who will be the state's witness? Alina Burroughs.
JA: First witness will take 30 seconds. Second witness will be Michael Vincent and his examination of State's Exhibit 322. His testimony will be that the odor in the can will be the same as that in the trunk, but with less intensity.
JB: I think the court needs to evaluate what this is in rebuttal of.
JA: Furton's statement that the odor in the trunk came from the trash. I feel the Jury is going to want to smell the evidence. As they passed around the garbage, one or two of the jurors smelled it. They are going to want to do it and we are going to need to determine how to do that and part of the predicate is that the smell in the can is the same as the car. Doesn't know if the Court will allow them to smell. Obviously the testimony is permissible, but doesn't know if the court wants to address the next issue.
JB: Dr. Furton was asked specifically if he had smelled the trash or the carpet.
JA: The defense going to concede that the odor in the car came from the trash? We know they won't.
HHJBP: How many witnesses did you put on that said it was human decomp?
JA: At least 4 or 5. Each witness was cross examined vigorously. I anticipate the defense is going to continue to convince the jury that the smell came from the garbage.
HHJBP: Isn't that a jury question since you have had Furton say it was not and a fair number on the other side saying it was human decomp. Dr. Vass who smelled it and it was the odor of decomp and his testing also said that. Trying to figure out what it rebuts.
JA: It rebuts the direct testimony that the odor is from the trash. What are we going to do when the jury asks to smell the can.
HHJBP: Do you want the jury to open the can up in the jury room and smell it?
JB: I would ask the court to review Huff and Clark.
JA: Huff issue - a single juror gaining experience with an item and telling other jurors what it is. These cases do not hold for the proposition that the jurors can't use their sense of smell on the evidence. I can find no legal support for the proposition that they can't. Decker v Knowles involving a situation where the jurors on their own during deliberation smelled some marijuana evidence that was placed before them and the question was whether or not it was improper. The partial holding of the court was that the jurors use of smell was not improper. Washington v Fairbanks - a case in which the issue was the prosecutor in a marijuana case - issue about officers testifying that the odor of fresh marijuana had an odor they could recognize. The prosecutor brought in a bag of fresh marijuana as a demonstrative exhibit - the court indicated this was appropriate. There are legions of cases from the twenties and thirties involving prohibition where juries were permitted to smell and taste. He can't find anything that would prohibit the jury from smelling it. If they want to, then they each must smell it individually to avoid Clark. Mike Vincent's testimony...
JB: JA did not understand jury instructions. Your Honor told the prosecutor if they wanted to do this, then they would need specific case law to do it. We have an unusual situation. The court was clear during jury selection what the jury was and had instructed the prosecution to provide something and they did not. Now they want to try again. The first time in the State of Florida the Jury should smell something and become witnesses to the smell of decomp. He does not know which jurors know the smell of decomp. We can't start changing the rules. Also, under the Fairbanks case, the Defense opened the door and there is no such situation in this case.
HHJBP: The Court raised this issue in jury selection and the Court called everyone's attention to Smith v State - a 1948 decision - where they said - the question is not a new one. It has been before this court a great many time and has been a cause of reversal over a long period of time. The court of criminal appeals condemns the practice of having the jurors smell or taste whiskey because it calls upon them to become witnesses and when a juror stated during deliberation that it smelled like whiskey - that becomes new evidence received. Also Decker v Knowles and that there was a case out of the Supreme Court of New Mexico - which said you could do it and it was a case dealing with the smell of alcohol, commonly known as whiskey/beer which was traditionally within the realm of beer or alcohol would smell like. There are two cases in Florida that have sort of dealt with this issue - jury experimentation. The latest case comes from the Florida Supreme Court - Lynch v State - a case that was a death 3851 case presided over by O.H. Eaton. The defense found fault with Judge Eaton of going back and looking at an item of evidence which was a Glock weapon and the Judge was trying to see if what the firearms expert was consistent with his manipulation of the weapon. The Court drew a narrow distinction because it was a non-scientific conclusion. In Lynch there was a site - Castillo v Vision Health - talking about so-called jury experimentation. Trial court did not abuse discretion in a med-mal case when a surgeon left fragments of sponge in an eye in allowing a deliberating jury to replicate a demonstration done by a defense expert in trial in which an expert had placed a sponge in water to show how the sponge expanded. What they concluded was that a demonstration of a demonstration in court, was not new evidence.
If the jury is allowed to go back and open up a can, why would they be doing that? (SIT DOWN JA - I'M NOT FINISHED TALKING) Are we asking them to determine if it is trash or the scent of a decomposing body when in Jury selection there were about 3 or 4 potential jurors who had smelled the odor. He can't remember if any of those are on the jury. How would the Defense be able to cross examine that particular juror or determine what sway that juror would have on the other jurors. To permit them to smell and the one who had experience to say that was the odor of decomp would be new extrinsic evidence and would violate ICA's due process rights and 6th amendment right.
The Court finds that evidence will not go back to the Jury even though all items of evidence are supposed to. The Court will exercise it's discretion and will not allow any smell test by jurors. There has been ample testimony - cutting edge/voodoo testimony.
The testimony of Detective Vincent is not rebuttal and will not be permitted.
LDB: e could introduce some photos and documents and then deal with the issue with the Gentiva records for the balance of the day and take care of that in the morning.
