GUILTY FL - Dan Markel, 41, FSU Law Professor, Tallahassee, 18 July 2014 - #6 *arrests*

[dotr]

Jada E. Williams‏ @JadaEWilliams 1m1 minute ago
Luis Rivera just entered the court room. #MarkelMurderTrialWTXL @abc27

Given that he is or was a "Grand Poobah" in the LK, wondering if there is extra security at the court? speculation, imo.

 

[clearskies1]

Well, not quite. A prior inconsistent statement can be offered to impeach credibility of a witness, but only by directly confronting that witness with it, and only if the prior statement was made under penalty of perjury. So, for example, if WA said something at a sworn deposition (for example during her divorce proceedings) that is inconsistent with something she says now at the criminal trial, she could be confronted with the inconsistency during her own examination. But that's about it. Lacasse's statements cannot be admitted under the theory that they are undermining WA's earlier testimony. So it has to be one of the other rationales - that they are not hearsay to begin with because they are not being offered to prove the truth of the matter asserted, or they are an exception to hearsay.

On the other hand, the fact that Lacasse's recollection has a tendency to undermine WA's statements is something the prosecutor could argue in support of the proposition that those statements are being offered for something other than to prove the truth of the matter asserted.

BBM. I think during the trial Wendi denied telling Lacasse anything about her brother trying to hire a hitman. So it seems Lacasse's testimony about what Wendi allegedly told him is admissible under Fla. Statute 90.801(2)(a):

90.801 Hearsay; definitions; exceptions.—
(1) The following definitions apply under this chapter:
(a) A “statement” is:
1. An oral or written assertion; or
2. Nonverbal conduct of a person if it is intended by the person as an assertion.
(b) A “declarant” is a person who makes a statement.
(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c) One of identification of a person made after perceiving the person.

Statutes & Constitution :View Statutes : Online Sunshine

 

[rsc42]

Both KM and SG are charged with conspiracy to commit murder. CA is an unindicted co-conspirator. If CA's statements are being entered to prove the truth of the matter asserted (i.e. that he hired a hitman) some courts may admit the statement under the exception that it was against his interests as a co-conspirator. But hearsay gets super complicated in circumstances like this.

Right. But also bear in mind it is not just CA's statement to WA we are talking about, but also WA then conveying that statement to Lacasse. Super complicated and likely was heavily argued by the lawyers before the testimony.

 

[rsc42]

BBM. I think during the trial Wendi denied telling Lacasse anything about her brother trying to hire a hitman. So it seems Lacasse's testimony about what Wendi allegedly told him is admissible under Fla. Statute 90.801(2)(a):

90.801 Hearsay; definitions; exceptions.—
(1) The following definitions apply under this chapter:
(a) A “statement” is:
1. An oral or written assertion; or
2. Nonverbal conduct of a person if it is intended by the person as an assertion.
(b) A “declarant” is a person who makes a statement.
(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c) One of identification of a person made after perceiving the person.

Statutes & Constitution :View Statutes : Online Sunshine

Look at subsection (a) though - the prior statement has to have been given under oath at a legal proceeding. In this case, the statements we are talking about are not WA's sworn testimony, we are talking about Lacasse's recollection of things she said to him during personal conversations.

 

[clearskies1]

Right. But also bear in mind it is not just CA's statement to WA we are talking about, but also WA then conveying that statement to Lacasse. Super complicated and likely was heavily argued by the lawyers before the testimony.

It wasn't clear to me if it was double hearsay (WA and CA) or if possibly Wendi allegedly had first hand knowledge of the purported prior attempt to hire a hitman. JMO.

 

[YESorNO]

Jada E. Williams‏ @JadaEWilliams 3m3 minutes ago
Tara Kawass is giving some objections about Rivera's testimony before bringing the jury in. #MarkelMurderTrialWTXL @abc27

 

[clearskies1]

Look at subsection (a) though - the prior statement has to have been given under oath at a legal proceeding. In this case, the statements we are talking about are not WA's sworn testimony, we are talking about Lacasse's recollection of things she said to him during personal conversations.

I think the statement at issue -- the potential hearsay -- is Wendi's alleged prior out of court statement to Lacasse about a hitman. IIRC I think during this trial Wendi denied making that statement to Lacasse. JMO.

 

[rsc42]

I think the statement at issue -- the potential hearsay -- is Wendi's alleged prior out of court statement to Lacasse about a hitman. IIRC I think during this trial Wendi denied making that statement to Lacasse. JMO.

Correct. Which is why Lacasse's statements would not be allowed in under the theory that they are being admitted to impeach WA. The rule requires that the statement being offered for impeachment was itself a statement given under oath. So Lacasse's statements are coming in under some other explanation as to why there are not hearsay.

 

[clearskies1]

Correct. Which is why Lacasse's statements would not be allowed in under the theory that they are being admitted to impeach WA. The rule requires that the statement being offered for impeachment was itself a statement given under oath. So Lacasse's statements are coming in under some other explanation as to why there are not hearsay.

Not seeing it that way....perhaps someone else can chime in.

 

[YESorNO]

Jada E. Williams‏ @JadaEWilliams 8m8 minutes ago
Luis Rivera is now on the stand. And he keeps looking over at Sigfredo Garcia. #MarkelMurderTrialWTXL @abc27

Blaise L Gainey‏ @BlaiseGainey 10m10 minutes ago
Luis Rivera who took a 19-year plea deal is now testifying. Says he has said nothing but the truth, and that nobody has told him to include any facts in his testimony.


Jada E. Williams‏ @JadaEWilliams 8m8 minutes ago
ASA Georgia Cappleman: "What did you have to do in return for your sentence?" Luis Rivera "Cooperate... Say nothing but the truth." #MarkelMurderTrialWTXL @abc27


Jada E. Williams‏ @JadaEWilliams 7m7 minutes ago
Rivera says no one has told him what to say. He's only here to tell the truth. #MarkelMurderTrialWTXL @abc27


Jada E. Williams‏ @JadaEWilliams 7m7 minutes ago
There are other crimes that Rivera still hasn't been sentenced for. Looks like he's looking at another 30 years. No promises in terms of plea on those. #MarkelMurderTrialWTXL @abc27


Blaise L Gainey‏ @BlaiseGainey 7m7 minutes ago
Rivera says he and Sigfredo Garcia has known one another since 5 years old. Went to the same school, hung out with same people, knew his nickname "Tuto".


Jada E. Williams‏ @JadaEWilliams 5m5 minutes ago
Rivera says he's known Garcia aka Tuto since they were about 5 or 6. They hung out just about everyday. He says Katherine Magbanua is Garcia's wife. #MarkelMurderTrialWTXL @abc27


Jada E. Williams‏ @JadaEWilliams 5m5 minutes ago
Rivera says his only relationship with Katherine Magbanua was being Garcia's wife. He didn't exactly have an independent friendship or relationship with her. #MarkelMurderTrialWTXL @abc27


Blaise L Gainey‏ @BlaiseGainey 5m5 minutes ago
Says he thought Katherine Magbanua and Sigfredo Garcia were married, from what he knew. He says he never really spoke to Katie (her nickname) on the phone. He was friends with Garcia not Katie. He says there relationship was on and off often.


Jada E. Williams‏ @JadaEWilliams 42s42 seconds ago
We're looking at a picture of Sigfredo Garcia, Katherine Magbanua, the mother of Luis Rivera's child, and Rivera. Another picture shows him and Garcia. #MarkelMurderTrialWTXL @abc27

 

[rsc42]

Not seeing it that way....perhaps someone else can chime in.

Think about it this way. Our focus is on the statement that is being offered, and whether it is hearsay or not - we are talking about the prior statement. The rule says the prior statement can be admitted if (1) it is inconsistent with the current testimony of a witness, and (2) the prior statement was given under oath in another legal proceeding. However, the statement in question is Lacasse's recollection of WA's own statements to him - a personal conversation, not a sworn legal proceeding.

 

[dixiegirl1035]

One of the jury questions asked something that I had always wondered due to making the timelines.

The question by the juror was when does the cell tower make an event. Does it just make an event when I call or text or made?

The answer was that for only with AT&T, here in this case, Facebook or searching the internet would show up as an event.

But not T-Mobile that carrier does not show an event for internet searches and or Facebook searches..

SG had tmobile, and LR had AT&T.

That answers my question of during so many periods why LR phone showed activity, but SG did not!

Great question Mr or Mrs juror! Thank you so much.

I agree with others above, jury questions are fabulous to have in a case. That was one I had always wondered about and in is my timeline notes re "events" that law enforcement said in their affidavits, but I could not figure out if it was a call or a text. I guess now we know what it was. I was thinking perhaps it was just pinging, but now I know it was something other than that and why only LR phone had such.

All above Moo

I think that is interesting after following many cases, because we find many suspects these days we'll use Facebook Messenger so it does not go through their cell phone for tracking Etc. I don't recall search warrants for Facebook Messenger Etc, so we shall see.

 

[YESorNO]

Blaise L Gainey‏ @BlaiseGainey 3m3 minutes ago
Rivera: "He said he had a job that he had to go do."
Cappleman ask if he knew what the job was. Rivera says he didn't ask because that was his friend and he "trusted him." Says he was told he would get 35k for the job.
He says he thought they were coming to Tallahassee to rob.


Jada E. Williams‏ @JadaEWilliams 5m5 minutes ago
Rivera says Garcia approached him about coming to Tallahassee "I got a job I need you to do." This was a few months before the murder. Rivera says he didn't ask any questions because it was his best friend and he trusted him. #MarkelMurderTrialWTXL @abc27


Jada E. Williams‏ @JadaEWilliams 4m4 minutes ago
"He said take a ride with me to Tallahassee and I'll give you some money." Rivera says he was promised $35,000 for the job. #MarkelMurderTrialWTXL @abc27

Jada E. Williams‏ @JadaEWilliams 4m4 minutes ago
Two trips from Miami to Tallahassee. No one but Rivera and Garcia on both trips. Rivera says the first time, he assumed they were coming to Tallahassee to do a robbery. On the way coming up, he was told "We're going to have to kill the man for some kids." #MarkelMurderTrialWTXL


Blaise L Gainey‏ @BlaiseGainey 2m2 minutes ago
Says on the way, "halfway there he said we we're going to have to kill the man... for some kids.", "I guess the lady wanted her kids back", "He had a piece of paper."
That paper was a picture of Dan Markel.


Jada E. Williams‏ @JadaEWilliams 3m3 minutes ago
Rivera says Garcia had a piece of paper in his hand with information about who they were going to kill. The paper had a picture of Dan Markel and his address. #MarkelMurderTrialWTXL @abc27


Jada E. Williams‏ @JadaEWilliams 3m3 minutes ago
Rivera said that Garcia rented the car for the first trip and he wasn't with him when the car was rented. #MarkelMurderTrialWTXL @abc27

 

[clearskies1]

Think about it this way. Our focus is on the statement that is being offered, and whether it is hearsay or not - we are talking about the prior statement. The rule says the prior statement can be admitted if (1) it is inconsistent with the current testimony of a witness, and (2) the prior statement was given under oath in another legal proceeding. However, the statement in question is Lacasse's recollection of WA's own statements to him - a personal conversation, not a sworn legal proceeding.

Still don't see it... but maybe others do.

 

[Mariposa]

Alright King Tato time to shine

 

[TTF14]

Correct. Which is why Lacasse's statements would not be allowed in under the theory that they are being admitted to impeach WA. The rule requires that the statement being offered for impeachment was itself a statement given under oath. So Lacasse's statements are coming in under some other explanation as to why there are not hearsay.

So Wendi's statement that her brother tried to find someone to kill Dan would have had to have been made under oath in order for Lacasse's statement to be an impeachable statement/exception to the hearsay rule?

 

[Mariposa]

Still don't see it... but maybe others do.

I’m so confused too but I’m just going to trust Judge Hankinson lol

 

[rsc42]

Still don't see it... but maybe others do.

You quoted the rule listing the hearsay exceptions, and bolded the part about prior inconsistent statements, presumably to show that Lacasse's statements re what WA told him were admissible under that exception. However the rule specifically requires that the prior statement being offered be one that was given under oath, i.e. not just any prior statement made in the course of normal conversation. So I'm trying to explain that however Lacasse's testimony was admitted, that wasn't the reason.

 

[rsc42]

I’m so confused too but I’m just going to trust Judge Hankinson lol

Correct, this is probably the best way to avoid getting a headache - just assume that this issue was litigated and that the statements have been ruled non-hearsay or hearsay-subject-t0-an-exception.

 

[clearskies1]

I’m so confused too but I’m just going to trust Judge Hankinson lol

Will think about it more later. Still think it's Wendi's alleged statement that is at issue-- not Lacasse's recollection of it but maybe I'm wrong. Going to focus on Rivera's testimony now.