IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO. CTC01-00101MMANO-E STATE OF FLORIDA ) ) V. ) VOLUME I ) JESSE PRINCE, ) ) Defendant. ) ) 컴컴컴컴컴컴컴컴컴컴컴컴컴�) PROCEEDINGS: Jury Trial BEFORE: Honorable Michael F. Andrews Judge of the County Court DATE: May 23, 2001 PLACE: Division E Criminal Justice Center 14250 49th Street North Clearwater, FL 34620 REPORTED BY: Jennifer Fleischer, RPR Notary Public - State of Florida 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� KANABAY COURT REPORTERS TAMPA AIRPORT MARRIOTT HOTEL (727) 224-9500 ST. PETERSBURG - CLEARWATER (727) 821-3320 KANABAY COURT REPORTERS 2 1 APPEARANCES: Lydia Wardell, Esquire Criminal Justice Center 2 14250 49th Street North Clearwater, FL 34620 3 Assistant State Attorney 4 Denis DeVlaming, Esquire 1101 Turner Street 5 Clearwater, FL 34616 Attorney for the Defendant 6 Paul Johnson, Esquire 7 101 South Franklin Street Suite 101 8 Tampa, FL 33602 9 Helena Kobrin, Esquire 1100 Cleveland Street 10 Suite 900 Clearwater, FL 33755 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 3 1 INDEX 2 VOLUME I PAGE LINE 3 PRETRIAL MOTIONS . . . . . . . . . . 6 6 4 VOIR DIRE EXAMINATION . . . . . . . . 15 1 5 PRELIMINARY INSTRUCTIONS . . . . . . 145 25 6 OPENING STATEMENTS . . . . . . . . . 159 1 7 VOLUME II 8 STATE'S WITNESS: HOWARD CROSBY Direct Examination . . . . . . . 188 14 9 Cross-Examination . . . . . . . .220 23 Redirect Examination . . . . . 240 21 10 Recross Examination . . . . . . 248 22 11 STATE'S WITNESS: MICHAEL BRUNO Direct Examination. . . .. . . 251 3 12 Cross-Examination . . . . . . . 265 12 Redirect Examination . . . . . . 273 22 13 STATE'S WITNESS: STACY MACE 14 Direct Examination . . . . . . . 276 8 Cross-Examination . . . . . . . 282 9 15 STATE RESTS . . . . . . . . . . . . . 283 8 16 MOTION FOR JUDGMENT OF ACQUITTAL . . . 286 24 17 DEFENSE WITNESS: BARRY GASTON 18 Direct Examination . . . . . . . 312 2 Cross-Examination . . . . . . . 342 8 19 Redirect Examination . . . . . 369 5 Recross Examination . . . . . . 370 7 20 VOLUME III 21 DEFENSE WITNESS: BRIAN RAFTERY 22 Direct Examination . . . . . . . 381 1 23 DEFENSE WITNESS: JOSEPH FABRIZIO Direct Examination . . . . . . . 399 9 24 25 KANABAY COURT REPORTERS 4 1 INDEX CONTINUED 2 VOLUME IV PAGE LINE 3 DEFENSE WITNESS: FRANK OLIVER Direct Examination . . . . . . . 436 3 4 Cross-Examination . . . . . . . 465 5 Redirect Examination . . . . . . 477 22 5 PROFFERED TESTIMONY: DENEEN PHILLIPS 6 Direct Examination . . . . . . . 469 21 Cross-Examination . . . . . . . 525 5 7 JURY CHARGE CONFERENCE: . . . . . . . 528 13 8 DEFENSE RESTS . . . . . . . . . . . . 559 8 9 STATE'S REBUTTAL WITNESS: DENEEN PHILLIPS 10 Direct Examination . . . . . . . 560 1 Cross-Examination . . . . . . . 594 3 11 Redirect Examination . . . . . 608 5 12 STATE'S RESTS: . . . . . . . . . . . . 613 13 13 MOTION FOR JUDGMENT OF ACQUITTAL . . . 613 19 14 VOLUME V 15 STATE'S CLOSING REMARKS . . . . . . . 622 22 16 DEFENSE CLOSING REMARKS . . . . . . . 637 22 17 STATE'S REBUTTAL REMARKS . . . . . .. 647 8 18 JURY INSTRUCTIONS . . . . . . . . . . 661 12 19 ALLEN CHARGE . . . . . . . . . . . . 692 8 20 VERDICT . . . . . . . . . . . . . . . 696 22 21 22 23 24 25 KANABAY COURT REPORTERS 5 1 EXHIBITS 2 3 STATE'S EXHIBITS RECEIVED PAGE LINE 4 STATE'S NO. 1 - Investigative 195 15 Assistance Agreement 5 STATE'S NO. 2 - Marijuana Sent To 264 15 6 The Laboratory 7 STATE'S NO. 3 - Photographs 261 4 8 STATE'S NO. 4 - Photographs 261 4 9 STATE'S NO. 5 - Photographs 259 22 10 STATE'S NO. 6 - Photographs 259 22 11 STATE'S NO. 9 - Marijuana Plant 263 18 12 13 DEFENSE EXHIBITS RECEIVED PAGE LINE 14 DEFENSE NO. 1 - Black Flower Pot 195 16 15 DEFENSE NO. 2(A-I) - Photographs 410 7 16 DEFENSE NO. 3 - Pot With Dead 410 16 Root System 17 DEFENSE NO. 5 - Videotape 393 2 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 6 1 P-R-O-C-E-E-D-I-N-G-S 2 THE COURT: All right. We shall take a 3 ten-minute recess and you all should bring 4 the jury in. 5 MS. WARDELL: Judge? 6 THE COURT: Are there motions? I'm 7 sorry. 8 MR. DEVLAMING: Well -- 9 MS. WARDELL: I had a couple issues. 10 Number one, I was going to ask the Court if 11 you were going to address pretrial publicity 12 in light of today's article and Saturday's? 13 THE COURT: There was an article today? 14 MS. WARDELL: Yes, Tampa Tribune. It's 15 pretty detailed, and it actually gets into 16 some deposition statements. 17 THE COURT: I have not seen any 18 articles. 19 MS. WARDELL: I can get it off the 20 computer and bring it back if you want to 21 see it. I didn't know -- 22 THE COURT: I would like to see the 23 article. 24 MS. WARDELL: -- if you wanted to leave 25 it up to us to cover it or if you had KANABAY COURT REPORTERS 7 1 intended to cover it and maybe separate 2 those that read it. So I was just hoping to 3 get some guidance from the Court on that 4 issue. 5 MR. DEVLAMING: Before we leave that, I 6 didn't either, Judge. Maybe it's a 7 regional -- 8 THE COURT: I believe it is probably 9 regional, because I have a north county 10 paper, and I've looked -- and I actually 11 specifically looked for an article, and I 12 did not find one. 13 MS. WARDELL: I'll bring it to you 14 because I checked for that very purpose. 15 THE COURT: Are you going to be asking 16 for a separation in individual, or at least 17 if not individual then regional lines, so to 18 speak, jury voir dire relating to that. 19 MR. DEVLAMING: I'm not, and I don't 20 know what Miss Wardell cares to do. I 21 usually like the Court to handle that 22 initially, and then if it's something that 23 we need to individually go through -- I'm 24 not going to ask for -- 25 MS. WARDELL: Judge, it was much, much, KANABAY COURT REPORTERS 8 1 more detailed than Saturday's. 2 THE COURT: Saturday's I saw which was 3 not very detailed. 4 MS. WARDELL: This is much more 5 detailed. And, number two, the Defense has 6 listed a witness. His name is Frank Oliver. 7 I haven't brought this up prior. Mr. 8 Oliver's in Miami, and we were going to do 9 his depo but we got running so late that 10 date that we did him, we ended up agreeing 11 that I wouldn't do his depo. 12 I read his prior testimony that he gave in 13 a case in Division E about a year and a half 14 ago, and Mr. DeVlaming represents that if he's 15 allowed to testify it is going to be similar 16 testimony. 17 My position, so as not to surprise the 18 Court, is that I think that if it gets to that 19 point, that Mr. Oliver should have to proffer 20 his testimony. I want to voir dire him on his 21 qualifications and things of that nature and 22 then have your Honor rule whether or not that 23 testimony is admissible. 24 THE COURT: Is Mr. Oliver apparently 25 some sort of an expert? KANABAY COURT REPORTERS 9 1 MS. WARDELL: He wants -- he wants to 2 testify about all the fair game things that 3 you've heard about. 4 THE COURT: Okay. We'll cross the 5 bridge when we get to it. 6 MS. WARDELL: I was hoping to do the 7 proffer before he was allowed to testify. 8 THE COURT: Okay. 9 MR. DEVLAMING: Before we leave that, 10 Judge, that's correct. And I told 11 Miss Wardell I will not mention that in 12 opening statements. However, and I know 13 that we've given the Court an awful lot 14 already on this case to read, what might be 15 helpful, since Mr. Oliver won't go on until 16 tomorrow, is if you want to give the Court a 17 little jump-start on what I have given you, 18 in other words, what he testified to at last 19 trial, that will be the parameters of it. 20 It might be some help to the Court. 21 THE COURT: I'd be happy to read it. 22 MS. WARDELL: Well, I prefer to hear 23 what he is going say this time because 24 obviously the last time it went to that 25 defendant and how that defendant was caught KANABAY COURT REPORTERS 10 1 up in fair game, if you will, and I would 2 like the Court to have it fresh, no taint if 3 you will, of what this guy's going to say. 4 MR. DEVLAMING: Judge, that's fine. 5 THE COURT: However you all wish to 6 handle this is fine with me, and we can 7 cross the bridge when we get to it. 8 MS. WARDELL: Okay. And, thirdly, 9 Judge, Ms. Kobrin had an issue she'd like to 10 raise. 11 THE COURT: Ms. Kobrin? I'm sorry. Is 12 it Kobirn or Kobert? 13 MS. KOBRIN: Kobrin. 14 THE COURT: Kobrin. Okay. 15 MS. KOBRIN: Your Honor, the issue that 16 I had mentioned to Miss Wardell, 17 Mr. DeVlaming handed me a subpoena the other 18 day on Mr. Fabrizio, and we're willing to 19 make him available to appear. I just wanted 20 to raise the issue that this subpoena is not 21 signed, it's not sealed, it's not a 22 subpoena. It's just a draft of a subpoena. 23 THE COURT: Do you wish to respond to 24 that? 25 MR. DEVLAMING: Well, I mean, her KANABAY COURT REPORTERS 11 1 caveat is fine with me. She just said she 2 would have him here, so -- 3 THE COURT: As long as you're willing 4 to produce him -- 5 MS. COBRIN: I just wanted to raise the 6 issue that what was given to me was not a -- 7 I didn't look at it at the time, but it's 8 not an actual subpoena. 9 THE COURT: But you will have him here, 10 will you not? 11 MS. COBRIN: We don't want to, you 12 know, cause a problem, and I don't know if 13 perhaps you should issue another one, but -- 14 THE COURT: Well, yeah, I don't know 15 that it's going to be required or, rather, 16 necessary for him to issue another one if 17 you are at this time as an officer of the 18 court saying you will produce him. 19 MS. KOBRIN: I will produce him. I 20 just wanted to put on the record that this 21 subpoena was not -- for whatever reason, it 22 was not signed and sealed. 23 THE COURT: Okay. Thank you, ma'am? 24 MR. DEVLAMING: Just so as a courtesy 25 to Mr. Johnson too, he is apparently on KANABAY COURT REPORTERS 12 1 vacation in Long Boat Key or something. I 2 told him he did not have to produce either 3 one of the witnesses that were subpoenaed in 4 this case until one. I hope that's all 5 right with you Miss Wardell. 6 I didn't think Miss Wardell had intended to 7 call Mr. Gaston, Mr. Raftery or Mr. Fabrizio, so 8 I took it upon myself, since I am the one that's 9 going to call him, to say one o'clock. Is that 10 all right? 11 MS. WARDELL: Whatever the Court -- 12 MR. DEVLAMING: No. But I mean -- 13 THE COURT: Do you need him before one? 14 MS. WARDELL: Well, I don't know how 15 the time table is going to go but, right, if 16 now you're asking me do I need him, the 17 answer is no. But you know -- 18 THE COURT: Okay. The point 19 Mr. DeVlaming is making is that he didn't 20 anticipate you would call them, and he had 21 given them permission to not come here until 22 at least one o'clock today. 23 MS. WARDELL: That's fine. 24 THE COURT: Okay. 25 MR. DEVLAMING: Thank you. KANABAY COURT REPORTERS 13 1 THE COURT: Any other matters I need to 2 address? 3 MR. DEVLAMING: No, sir. 4 MS. WARDELL: I'll bring the article 5 up, though. 6 MR. DEVLAMING: Oh, actually there is 7 one other matter. I'm sorry. Your Honor, 8 you received a communication from 9 Mr. Bunker, who is this gentleman here with 10 the beard, about the ability to -- 11 THE COURT: -- videotape. 12 MR. DEVLAMING: Yeah, videotape. I 13 understand the media is here. What 14 Mr. Bunker would like to do since the media 15 is not going to cover full gavel to gavel, 16 is to go downstairs where he will not be, 17 you know, in the courtroom, and if there is 18 a feed from these stationary cameras, to be 19 able to use those for his documentary work. 20 THE COURT: What Mr. Bunker needs to 21 understand is that in my courtroom only one 22 camera works and it focuses on me the entire 23 time. That's not going to help him. 24 MR. DEVLAMING: No, it -- is that 25 right, Judge? None of them -- KANABAY COURT REPORTERS 14 1 THE COURT: That's a fact. The only 2 one that's going to ever work is that one 3 sitting there, and it focuses on me the 4 entire time and I understand that I don't 5 show up very well on it for obvious reasons. 6 MR. DEVLAMING: Judge, then could I ask 7 whether or not he would be able to be as 8 nonintrusive as is Chanel 13 and go over on 9 this side of the courtroom? 10 THE COURT: I've already spoken with 11 Mr. Bunker as it relates particularly to 12 that, and I am uninclined to assist him 13 today. 14 MR. DEVLAMING: Okay. So the only 15 thing would be the media room on the court? 16 THE COURT: Yes. 17 MR. DEVLAMING: Okay. Thank you. 18 Might I step down now? 19 MS. WARDELL: Yes. And do you want me 20 to just have the bailiff run you back the 21 article when they get it? 22 THE COURT: Please. We shall take 23 fifteen. 24 (A RECESS WAS HAD) 25 (THE JURY PANEL WAS DULY SWORN) KANABAY COURT REPORTERS 15 1 VOIR DIRE EXAMINATION 2 THE COURT: Please have a seat. Good 3 morning. 4 THE PROSPECTIVE JURORS: Good morning. 5 THE COURT: I'm Judge Andrews, and I'll 6 be presiding over this case today. This is 7 a criminal case. And the defendant in this 8 case, Mr. Prince, is charged with the 9 offense of possession of marijuana. 10 You all approach the bench one moment, 11 please. 12 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 13 THE COURT: Do you want me to read this 14 one? I'll read it. 15 MS. WARDELL: It's handwritten on -- 16 THE COURT: -- May 7 through August 6. 17 MR. DEVLAMING: And/or. Not through 18 there, and/ors. 19 THE COURT: May 7th and/or August 6th 20 and/or August 11, 2000? 21 MS. WARDELL: Right. 22 THE COURT: Thank you. 23 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 24 THE COURT: Mr. Prince is charged with 25 possession of marijuana. And again, this is KANABAY COURT REPORTERS 16 1 a criminal case. And I will read to you the 2 charging document in this case. It's called 3 an information. It reads as follows: 4 The State of Florida versus 5 Jesse Prince Jr,. 6 it says Bernie McCabe, State Attorney for 7 the Sixth Judicial Circuit of Florida, in and 8 for Pinellas County, prosecuting for the State 9 of Florida, in said County, under oath. The 10 information makes that Jesse Prince, Jr., in the 11 County of Pinellas and State of Florida on 12 May 7th and/or August 6th -- May 7, 2000, and/or 13 August 6, 2000, and/or August 11, 2000, in the 14 County and State aforesaid, did unlawfully 15 possess and have in his control a certain 16 controlled substance, to wit: Cannabis, 17 commonly known as marijuana, which contains less 18 than 20 grams of cannabis; contrary to Chapter 19 893.13, Florida Statutes, and against the peace 20 and dignity of the State of Florida. 21 That is the offense that the defendant is 22 charged with here today. 23 Now, what we're going to be doing is trying 24 to pick a jury of about seven people -- it will 25 be seven people -- to sit and be fair and KANABAY COURT REPORTERS 17 1 impartial jurors here today, and we're going to 2 be asking you questions that are going to be 3 designed to determine whether or not you can be 4 fair or impartial. 5 I can guarantee you that nothing we ask you 6 is going to be designed to embarrass you or in 7 any way make you feel uncomfortable. The sole 8 purpose of the questions is to determine whether 9 or not on today's trial you can be fair and 10 impartial. So we're asking you some questions 11 that relate particularly to that. 12 Consider for a minute if this were a DUI 13 case and some of you had either been charged 14 with DUI or someone in your family had been a 15 victim of a DUI driver, then this might be a 16 case that you might not be a good juror to serve 17 on because you might have some particular 18 feeling about DUI that might in some way impact 19 upon your ability to be fair and impartial. 20 That's kind of where we're headed here. 21 When we get to asking you questions, if you 22 at any point in time feel uncomfortable about 23 the questions that you are being asked and 24 uncomfortable about the answer that you would 25 have to give in front of the rest of what is KANABAY COURT REPORTERS 18 1 this venire, then you have my permission to ask 2 to approach. We would allow you to do that. 3 You can come up here to the bench. You can 4 stand here and answer the question in front of 5 myself, the attorneys and the court reporter, 6 and you won't have to reveal whatever it is that 7 you don't wish to reveal in front of entire 8 venire. So I want you to feel comfortable that 9 that is something that can happen. 10 Now, I anticipate that this case is going 11 to last two days. I heard a complaint already 12 about that. It was already well registered. I 13 it was believe Mr. Mensch who said "aw." I 14 might be wrong. I anticipate it is going to 15 last two days. I am going to ask you some 16 questions about that to determine whether or not 17 you might be a person who can sit here for a 18 couple of days and hear this case. 19 I'll also tell you that I anticipate there 20 are going to be news media personnel in the 21 courtroom at some point also today and tomorrow 22 as it relates to this trial and while the trial 23 is going on. So, if during the questioning 24 itself any of those things end up becoming a 25 problem for you or something that's going to KANABAY COURT REPORTERS 19 1 concern you, and I will ask you about your 2 ability to stay for two days in just a second 3 here, when the attorneys are asking you 4 questions or when I am, please bring that up. 5 As far as I am concerned, if we sort of 6 have the gall and audacity to ask you to 7 come down here and take away from what are 8 your busy lives, in some cases you're 9 probably missing work and there's no way in 10 the world we're going to pay you anywhere 11 near what you would make while at work 12 today, and, of course, sometimes you're 13 going to be missing your children and other 14 things, then it seems to me that we can do 15 the best we possibly can to be as nice to 16 you as we possibly can. So it's my intent 17 to do that. 18 So you need to -- or you should, rather, 19 rest assured that if at any point in time you 20 need to use the facilities -- I call it take a 21 potty break because I've got little ones, so I 22 always use the word "potty." But if you need to 23 use the facilities at any point in time, just 24 let me know. Better yet, let the bailiff know. 25 If you're sitting as a juror in this case KANABAY COURT REPORTERS 20 1 you'll be sitting over here in the jury box. 2 Sitting right next to you will be a bailiff. 3 Turn to the bailiff and let them know that you 4 got to go, and the bailiff will let me know, and 5 I can guarantee you I will take a break as soon 6 as practical so that we can make sure that that 7 happens. 8 I think the worst possible feeling there is 9 in the world is sitting trying to hold it and 10 you don't want anybody to know that you're 11 trying to hold it at the same time you've got to 12 focus on and concentrate on the evidence in this 13 case, and I don't really want that to be 14 something that you all suffer from. So again, 15 if you have that issue, then do that. 16 Also, if you need any other -- some other 17 type of breaks, I've had cases where I've had 18 folks who were diabetic and a couple of those 19 people needed to take a break so they can munch 20 on something especially going late in the 21 everything, again I'm prepared to take a break 22 so that that can happen for you. 23 If you need to stretch, some people have 24 back problems, anything like that, I don't have 25 a problem with that. You can stand where you KANABAY COURT REPORTERS 21 1 are and stretch and it will not offend me and it 2 will be something you're able to do. 3 The other thing or a couple other things, I 4 tend to allow jurors to take into the jury box 5 with them a covered drink. So if you're served 6 or, rather, able to serve or to serve as a juror 7 in this case, you can take into the jury box 8 with you a drink that's covered. So either have 9 a lid over it or a cap over it so that you don't 10 spill it. That's my concern. 11 Now, the only thing I would ask you as 12 relates particularly to the drink itself is that 13 when you get towards the end there, you don't 14 slurp it. We're trying to avoid having a 15 problem interrupting the witness as they're 16 testifying, so please don't slurp the drink. 17 I also tend to allow jurors, because I 18 understand some folks enjoy chewing gum -- 19 nobody else in the courtroom will get to chew 20 gum, but you can. And if you wish to chew gum, 21 that's fine with me. Again, we try to be nice 22 to you and we're going to do the best we can to 23 accommodate you. 24 The only thing -- I have two requests as it 25 relates to the gum. Don't chew the gum with KANABAY COURT REPORTERS 22 1 your mouth open, and please don't pop or smack 2 the gum. Every now and again we get somebody 3 that tries to pop or snap the gum, and that 4 is -- can be interrupting, so I would ask that 5 you not do that. 6 Anything else that I can possibly to do to 7 make this a more comfortable experience so you 8 can focus on the evidence in this case, listen 9 to the testimony of the witnesses and come to a 10 what is a fair and impartial verdict here today, 11 that's what I intend to do. I'm trying to place 12 you at ease. If I haven't done that yet, that's 13 what I'm trying to do. 14 Now, this, I believe, is going to take a 15 day and a half, two days to try. Is there 16 anyone here who cannot -- now, let me tell you 17 also I anticipate we'll break today between 18 five-thirty and seven, I mean, it may be closer 19 to maybe six and seven. Is there anyone here 20 who cannot stay, first of all, until six or 21 seven today, and then, secondly, cannot 22 participate in this trial for up to two days? 23 Please raise your hand. All right. I have, 24 sir, is it Ondich? 25 PROSPECTIVE JUROR ONDICH: Yes, sir. KANABAY COURT REPORTERS 23 1 THE COURT: All right. Can you tell me 2 why it is that you might not be able to 3 participate for two days? 4 PROSPECTIVE JUROR ONDICH: I'm a staff 5 radiological technologist. I travel, and 6 the hospital I have to attend to tomorrow 7 depends on me to be there. If not, then 8 they are not going to have enough people to 9 do x-rays in that facility. 10 THE COURT: Okay. Where do you have to 11 go tomorrow? 12 PROSPECTIVE JUROR ONDICH: Northside 13 Hospital? 14 THE COURT: That's here in Pinellas 15 County? 16 PROSPECTIVE JUROR ONDICH: Yes. 17 THE COURT: Here's my question, sir: 18 Is there anyone -- let me ask it this way. 19 Now, Mr. Ondich, God forbid decided to go 20 jogging today and slipped and fell and broke 21 his ankle. He can't go to work tomorrow. 22 Who does Northside Hospital call tomorrow 23 then to fill in for you? 24 PROSPECTIVE JUROR ONDICH: They will 25 have to try and find another agency and try KANABAY COURT REPORTERS 24 1 and bring in another technologist. 2 THE COURT: Okay. But the point of it 3 is that there is someone who could cover for 4 you if you could not make it to work 5 tomorrow; is that accurate? 6 PROSPECTIVE JUROR ONDICH: It's 7 possible, yes. 8 THE COURT: If we were to allow you to 9 use a telephone, and we would allow you to 10 use that phone pretty much at your 11 convenience whenever it would be necessary 12 for you to use that phone, could you arrange 13 for someone to maybe cover for you tomorrow? 14 PROSPECTIVE JUROR ONDICH: I can call 15 my supervisor and see if she will have 16 anyone available. 17 THE COURT: Okay. Thank you, sir. 18 Anybody else? All right. Let the record 19 reflect that no hands went up. 20 Okay. I'm going to go through this list, 21 and I'm going to read your names and I'm going 22 to try and make sure that I read them correctly. 23 The reason I do that is to avoid us pronouncing 24 your name several times wrongly. My last name 25 is Andrews, as you can see from my plaque and KANABAY COURT REPORTERS 25 1 from me having introduced myself. 2 And one of the things that seems to annoy 3 me more than anything, folks often leave off of 4 my last name that "s." They always call me 5 Michael Andrew. Nothing seems to annoy me more 6 than being called Michael Andrew. So your name 7 being mispronounced may annoy you. 8 I'm going to try to avoid that. I'm going 9 to go through and see if we can pronounce 10 everyone's name correctly, starting over here 11 with Mr. Benjamin, sir? 12 PROSPECTIVE JUROR BENJAMIN: That's 13 correct. 14 THE COURT: Okay. Is it Scurlock? 15 PROSPECTIVE JUROR SCURLOCK: Yes. 16 THE COURT: Is it Marx? 17 PROSPECTIVE JUROR MARX: Yes. 18 THE COURT: All right. Mr. Lovett? 19 PROSEPCTIVE JUROR LOVETT: Yes. 20 THE COURT: And Miss Matthews? 21 PROSPECTIVE JUROR MATTHEWS: Yes. 22 THE COURT: Miss Ellis? 23 PROSPECTIVE JUROR ELLIS: Yes, sir. 24 THE COURT: Miss, is the "S" silent? 25 PROSPECTIVE JUROR ELLIS: No. KANABAY COURT REPORTERS 26 1 THE COURT: I'm talking to Miss -- I'm 2 sorry. Not the "S" but the "T". Is the "T" 3 silent? 4 PROSPECTIVE JUROR TSIKOS: Tsikos. 5 THE COURT: It is Tsikos? 6 PROSPECTIVE JUROR TSIKOS: Tsikos. 7 THE COURT: So the "S" is silent? 8 PROSPECTIVE JUROR TSIKOS: Yes, sir. 9 THE COURT: Okay. Tsikos. 10 Is it Janusik or Janusik? 11 PROSPECTIVE JUROR JANUSIK: Janusik. 12 THE COURT: Janusik. Okay. Is it 13 Casella? 14 PROSPECTIVE JUROR CASELLA: Yes, it is. 15 THE COURT: Ezell? 16 PROSPECTIVE JUROR EZELL: Yes. 17 THE COURT: Is it Swonger? 18 PROSPECTIVE JUROR SWONGER: Yes, sir. 19 THE COURT: Mr. Ondich? 20 PROSPECTIVE JUROR ONDICH: Yes, sir. 21 THE COURT: Is it Bartocci? 22 PROSPECTIVE JUROR BARTOCCI: Bartocci, 23 right. 24 THE COURT: Miss Carter? 25 PROSPECTIVE JUROR CARTER: Yes. KANABAY COURT REPORTERS 27 1 THE COURT: Mr. Backus? 2 PROSPECTIVE JUROR BACKUS: (Indicates.) 3 THE COURT: Mr. Wilson? 4 PROSPECTIVE JUROR WILSON: (Indicates.) 5 THE COURT: All right. Mr. Langston? 6 PROSPECTIVE JUROR LANGSTON: Yes, sir. 7 THE COURT: Mr. Wright? 8 PROSPECTIVE JUROR WRIGHT: Yes. 9 THE COURT: Mr. Herdman? 10 PROSPECTIVE JUROR HERDMAN: Yes. 11 THE COURT: Miss Mobley? 12 PROSPECTIVE JUROR MOBLEY: (Indicates.) 13 THE COURT: Miss Drake? 14 PROSPECTIVE JUROR DAKE: Dake, no "R." 15 THE COURT: I'm sorry. There is no "R" 16 there. You're right. You would know. 17 Sorry, Miss Dake. 18 And Mr. Osborn? 19 PROSPECTIVE JUROR OSBORN: (Indicates.) 20 THE COURT: Mr. Garrison? 21 PROSPECTIVE JUROR GARRISON: (Indicates.) 22 THE COURT: Mr. Shea? 23 PROSPECTIVE JUROR SHEA: (Indicates.) 24 THE COURT: Is it Rothschild? 25 PROSPECTIVE JUROR ROTHSCHILD: The "S" KANABAY COURT REPORTERS 28 1 is silent. 2 THE COURT: The "S" is silent, so 3 Rothschild? 4 PROSPECTIVE JUROR ROTHSCHILD: Right. 5 THE COURT: Miss Lovely? 6 PROSPECTIVE JUROR LOVELY: Yes. 7 THE COURT: Is it Lepley? 8 PROSPECTIVE JUROR LEPLEY: Yes. 9 THE COURT: And is it -- is there a 10 hyphen between Dalla and Rosa? 11 PROSPECTIVE JUROR DALLA ROSA: No. 12 It's one word -- one name, two words. 13 THE COURT: Okay. So It's Miss Dalla 14 Rosa? 15 PROSPECTIVE JUROR DALLA ROSA: Dalla 16 Rosa. 17 THE COURT: Okay. Mr. Wickett? 18 PROSPECTIVE JUROR WICKETT: Yes. 19 THE COURT: And Mr. Mensch? 20 PROSPECTIVE JUROR MENSCH: Yes. 21 THE COURT: Okay. Now, real quickly, 22 by a show of hands, if you left your common 23 sense at the door when you walked in the 24 courtroom, please raise your hand. 25 Let the record reflect that nobody raised KANABAY COURT REPORTERS 29 1 their hand. Every now and again someone raises 2 their hand. Actually on Monday three people 3 raised their hand. The reason I asked you that 4 is because you are not required to leave your 5 common sense at the door. It is not magic and 6 there is nothing mystical about what's going to 7 happen here today. We ask you to bring your 8 common sense into this courtroom. 9 For the X-number of years that each of you 10 have been living or has been living, you've 11 developed some things that help you determine 12 whether or not you believe a person is telling 13 the truth or telling a lie, whether or not a 14 story is believable or not believable. We don't 15 ask you to abandon that. In fact, we ask -- 16 insist that you bring that in the courtroom with 17 you here today. 18 Now, all the evidence in this case, all of 19 the evidence, is going to come from one place 20 and one place only. That is this witness stand. 21 What I say will not be evidence. What the 22 lawyers say will not be evidence. The evidence 23 will come from the testimony of the witnesses 24 and some of the documents, if any, that are 25 introduced into this trial here today. KANABAY COURT REPORTERS 30 1 When they are done testifying, then I will 2 read to you at the end of the trial what is the 3 law in this case. Now, what we ask you to do is 4 to look at the evidence and the law and come up 5 with what is a fair and impartial verdict here 6 today. That's what we're going to ask you to 7 do, and you using your common sense to do that. 8 Is there anyone here who cannot do that? 9 Please raise your hand if you can't. Okay. 10 Thank you. Let me introduce to you all the 11 people who are in the courtroom here today. 12 Sitting over here in the jury box is a student, 13 if you will. She is sort of observing and 14 learning how this is done. So that's -- how do 15 you say your last name? 16 UNIDENTIFIED SPEAKER: Delcolisis 17 (phonetic.) 18 THE COURT: I can't say it, so I always 19 ask her to say her last name. Next to 20 Miss Thea is the bailiff. The bailiffs are 21 the persons you will see that have on black 22 jackets, black tie, and a white shirt. 23 They're going to be in charge of our safety 24 here today. They're going to protect us. 25 They're going to take you, if you serve as a KANABAY COURT REPORTERS 31 1 juror, from place to place throughout the 2 building where it is that you might need to 3 go. 4 If some of you are smokers, they will take 5 you to a particular place in the building where 6 you will be allowed -- well, outside really is 7 only where you will be allowed to smoke. And 8 for all intents and purposes they're going to 9 make sure that you are comfortable and address 10 your needs. Those are the ones you would talk 11 to again if you have some issues that you need 12 to address. 13 Sitting to my right in front of me here is 14 the assistant state attorney who is going to be 15 prosecuting the State's case. Ma'am, stand and 16 introduce yourself and read from your witness 17 list anyone you anticipate you may call. 18 MS. WARDELL: Yes, Judge. Good 19 morning. Lydia Wardell with the State 20 Attorney's Office. 21 Officer Howard Crosby, 22 Officer Michael Bruno and Pinellas County Lab 23 technician Stacy Mace. Judge, do you want me to 24 read all the possible witnesses or just the ones 25 I intend to call? KANABAY COURT REPORTERS 32 1 THE COURT: If you possibly may call 2 some others, please also read those. 3 MS. WARDELL: Okay. There is 4 Brian Raftery, Barry Gaston, Ray Emmons, 5 James Patterson, Frank Oliver and 6 Deneen Phillips. 7 THE COURT: Thank you very much. 8 Sitting in front of me here is our court 9 reporter, and she is typing any and 10 everything that we say down, which, of 11 course, preposes that we actually say 12 something audible. 13 We have sort of a habit I think, or folks 14 often, at least in this county I've come to 15 realize, answer questions with when they want to 16 answer a question yes, they say uh-huh, and if 17 they want to say no, they say huh-uh. Well, 18 there is nothing on the machine that takes down 19 the uh-huh and the huh-uh. So we're going to 20 need to say yes and no. 21 We also sometimes also answer our questions 22 by shaking our head up and down, yes; shaking it 23 left and right for no. Again, nothing on the 24 machine that's going take down the shakes of 25 your head. So we would ask you to be -- if you KANABAY COURT REPORTERS 33 1 answer your question, that you answer them out 2 loud and say yes or no to -- or whatever the 3 answer may be to the questions that are asked. 4 Sitting in front of me here is 5 Mr. DeVlaming and his client. Mr. DeVlaming, 6 would you please stand and introduce yourself 7 and your client and any witness you may call 8 today. 9 MR. DEVLAMING: Yes, your Honor. My 10 name is Denis DeVlaming. I'm a lawyer in 11 Clearwater. And Miss Wardell read the names 12 of all witnesses in this case including the 13 ones that I intend to call, so I have 14 nothing in addition at this time. And this 15 is Jesse Prince. He is my client. He is 16 also of Pinellas County. 17 THE COURT: Thank you, sir. 18 Sitting over to my left is the court clerk. 19 The court clerk is for all intents and purposes 20 the Court's secretary. She takes all the 21 minutes in this case, will collect all of the 22 evidence and will make sure that I do all the 23 things that are supposed to be done in this 24 case. For instance, you all were sworn when you 25 came. She will take care of that. She will KANABAY COURT REPORTERS 34 1 remind me to swear you in if I fail to do that, 2 and just keep the trial running orderly and 3 efficiently. 4 Now, having done that, introduced all these 5 folks, is there anyone here who recognizes any 6 of the people in the courtroom or any of the 7 names that were called? Please raise your hand 8 if you do. 9 Okay I have Mr. Wright raising his hand. 10 Sir, who do you recognize? 11 PROSPECTIVE JUROR WRIGHT: Mr. Oliver 12 and the Clerk. 13 THE COURT: Okay. You recognize the 14 Clerk and you recognize Mr. Oliver? 15 PROSPECTIVE JUROR WRIGHT: Uh-huh. 16 THE COURT: Okay. Anything about the 17 fact you recognize Mr. Oliver and recognize 18 the Clerk here today going affect your 19 ability to be fair and impartial here today? 20 PROSPECTIVE JUROR WRIGHT: No. 21 THE COURT: Okay. Thank you. Anyone 22 else? Anybody here recognize or heard 23 anything in particular about this case from 24 the information as I read it. Okay. No 25 hands. KANABAY COURT REPORTERS 35 1 Let me go into greater detail. This case 2 was in the paper two days -- well, I think it 3 was Saturday and today. It was in the 4 St. Petersburg Times Saturday and it made its 5 way into the Tampa Tribune today. There are 6 some allegations that this case involves 7 members, a former member -- arguably a former 8 member of the Church of Scientology and the 9 Church of Scientology, arguably, itself. I'm 10 not telling you that it does or doesn't, but 11 that's what the paper would seem to suggest. 12 Did anyone read those articles? Okay. 13 Starting down here with Mr. Marx. Did you -- 14 you read the article? 15 PROSPECTIVE JUROR MARX: I -- 16 THE COURT: You did read the article? 17 PROSPECTIVE JUROR MARX: (Indicates.) 18 THE COURT: Other than Mr. Marx, 19 anybody else? Please raise your hand if you 20 read that article or those articles. 21 Mr. Marx, I'm going to ask you to please 22 step to the podium, sir, or, rather, to step 23 to the bench. 24 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 25 MR. DEVLAMING: Judge, do you need a KANABAY COURT REPORTERS 36 1 waiver from my client? He doesn't need to 2 be here, but if you want him -- 3 THE COURT: I do need a waiver. 4 MR. DEVLAMING: Okay. Mr. Prince? 5 (THE DEFENDANT APPROACHES THE BENCH) 6 MR. DEVLAMING: Mr. Prince, you have a 7 right to be here at the bench conference as 8 well as other bench conferences or you can 9 waive that right and be represented by your 10 lawyer. I recommend that, but it's your 11 decision to make. What do you want to do? 12 Do you want to be at the bench conferences, 13 or do you want me to handle it for you? 14 THE DEFENDANT: I'm perfectly -- I 15 trust you to handle it competently. 16 THE COURT: Thank you, Mr. Prince. 17 (THE DEFENDANT RETURNED TO THE DEFENSE TABLE) 18 THE COURT: Sir can you tell us what it 19 is you read in the article? 20 PROSPECTIVE JUROR MARX: I said -- yes, 21 your Honor, since you mentioned it. 22 THE COURT: Okay. And we gave the 23 names, but the first time the name didn't 24 connect with you? 25 PROSPECTIVE JUROR MARX: No. KANABAY COURT REPORTERS 37 1 THE COURT: Is there anything in 2 particular about that article that you think 3 since has in any way swayed you or made you 4 feel that you might not be able to be fair 5 here today? 6 PROSPECTIVE JUROR MARX: The article it 7 looks to me like it presented, like, one 8 side of the story and not the other side, so 9 -- 10 THE COURT: Do you think that the fact 11 that, in your mind, the article presented 12 only one side of the story is going to 13 affect your ability to sit and listen to 14 both sides of the story, if both sides are 15 offered, and come up with a fair and 16 impartial verdict here today? 17 PROSPECTIVE JUROR MARX: Yes. 18 THE COURT: Why do you say that? 19 PROSPECTIVE JUROR MARX: Well, I'd 20 like -- I don't like extreme religions, 21 and -- 22 THE COURT: You're saying at this time 23 that the article -- you say you don't like 24 extreme religions. Let me ask you this: By 25 extreme -- did you already have an opinion KANABAY COURT REPORTERS 38 1 about the Church of Scientology before you 2 read the article? 3 PROSPECTIVE JUROR MARX: I read the 4 articles on the Church of Scientology. 5 THE COURT: Did you already -- 6 PROSPECTIVE JUROR MARX: I've read many 7 articles because there's all kinds of 8 scandals in Clearwater. 9 THE COURT: Right. And did you already 10 have some particular feelings, negative 11 feelings, about the Church of Scientology 12 before you read the article today? 13 PROSPECTIVE JUROR MARX: Negative, I 14 can't tell you. 15 THE COURT: Here's my problem. You say 16 that you don't like extreme religions, and 17 that's causing me to assume that you know 18 something in particular about the Church of 19 Scientology to make you think it is an 20 extreme religion as opposed to -- 21 PROSPECTIVE JUROR MARX: I believe 22 people can practice whatever they want. It 23 doesn't affect me, but it is always in the 24 paper. I don't know if they do that because 25 of they like publicity or -- they're always, KANABAY COURT REPORTERS 39 1 like, front page. 2 THE COURT: Okay. 3 PROSPECTIVE JUROR MARX: So -- 4 THE COURT: All right. Did you have 5 some questions? 6 MS. WARDELL: Do you recall if you read 7 the St. Pete Times article Saturday or the 8 Tampa Tribune's article today? 9 PROSPECTIVE JUROR MARX: Saturday's 10 article. 11 MS. WARDELL: You read Saturday's 12 article? 13 PROSPECTIVE JUROR MARX: Uh-huh. 14 MS. WARDELL: Which side did I think -- 15 you said you believe only one side was 16 given. What side do you believe was 17 presented in that article? 18 PROSPECTIVE JUROR MARX: I can't 19 remember. I can't recall, but I remember 20 having, let's say, a negative feeling about 21 the article. I can't remember exactly what 22 side. I would have to reread it, but I do 23 remember it stayed with me. 24 MS. WARDELL: You have negative 25 feelings about the prosecution of the KANABAY COURT REPORTERS 40 1 individual because Scientology was involved? 2 PROSPECTIVE JUROR MARX: Possibly. 3 MS. WARDELL: Because the techniques 4 and tactics that they used to -- like one 5 against the other? 6 PROSPECTIVE JUROR MARX: I guess. 7 MS. WARDELL: So the article, that led 8 you to believe that improper tactics were 9 used to lead to the prosecution or to the 10 arrest? 11 PROSPECTIVE JUROR MARX: Yes. I'm not 12 sure, but I know -- I mean, whenever it's 13 involving, like, the Church of 14 Scientology -- I don't know or read that 15 much about them besides they are in the 16 paper all the time. So they are in the 17 paper all the time. They must, like, have 18 some reason to be in the paper all the time. 19 I mean, I don't see, like, some other local 20 churches being in the paper all the time. 21 MS. WARDELL: Based upon what you read, 22 do you think you could be fair and impartial 23 in this case? 24 PROSPECTIVE JUROR MARX: No. 25 THE COURT: Do you understand the KANABAY COURT REPORTERS 41 1 Church of Scientology is not a party in this 2 case? 3 PROSPECTIVE JUROR MARX: Oh, I 4 understand that. 5 THE COURT: Okay. Having said that, do 6 you think if the Church of Scientology 7 becomes relevant to the proceedings that you 8 would hold it against the Church of 9 Scientology and possibly against either the 10 prosecution or the defense or whichever side 11 arguably represents or is fostering what 12 would be their interest? 13 PROSPECTIVE JUROR MARX: Well, I have 14 this doubt. This other problem with 15 marijuana is that I had a couple of friends 16 over the years that kind of are in and out 17 of this world by just smoking too much. I 18 mean, like, being they would tell me they 19 were on medication and -- 20 THE COURT: Okay. Here's the thing. 21 I'm just trying to focus on the article. 22 PROSPECTIVE JUROR MARX: Okay. 23 THE COURT: We can talk about your 24 friends at another point. What I'm trying 25 to figure out, what I'm trying to get you to KANABAY COURT REPORTERS 42 1 tell me is are you going to hold it against 2 a particular side, either the prosecution or 3 the defense, if you come to believe that one 4 or the other side might be assisting the 5 Church of Scientology in whatever you don't 6 like about them today? 7 PROSPECTIVE JUROR MARX: I can't -- I 8 can't answer. 9 THE COURT: All right. Mr. DeVlaming, 10 did you have any questions of this 11 gentleman? 12 MR. DEVLAMING: I guess what we're 13 trying to find out, Mr. Marx, is based upon 14 what you've read and based upon what you 15 know and what you've just told us, do you 16 feel that you can follow the law that the 17 judge gives you at the end of the case and 18 take the facts that you hear from the 19 courtroom and arrive at a fair verdict, or 20 do you think you come in with some sort of 21 bias or prejudice? 22 PROSPECTIVE JUROR MARX: I think I am 23 more likely coming with a bias or prejudice. 24 THE COURT: Thank you. 25 MR. DEVLAMING: Okay. KANABAY COURT REPORTERS 43 1 (PROSPECTIVE JUROR LEAVES THE BENCH) 2 THE COURT: Stay here. I'm not sure I 3 understand where we're headed here. I 4 believe he is cause. I don't know that we 5 need to ask him any more questions. Do you 6 agree he is cause? 7 MS. WARDELL: I don't have a problem 8 with cause. 9 MR. DEVLAMING: Let's let him go. 10 THE COURT: All right. Thank you. 11 MR. DEVLAMING: Judge, though, I'm 12 always a little leary about a stampede, and 13 sometimes when a juror leaves -- 14 THE COURT: He's staying. I was just 15 saying don't ask him any questions. 16 MR. DEVLAMING: That's fine. 17 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 18 THE COURT: I understand right now we 19 need to take about a ten-minute recess. 20 We'll take that recess at this moment, and 21 then in ten minutes we'll come back and I'll 22 finish my questioning and turn it over to 23 the attorneys. Okay? Let's take ten. 24 (A RECESS WAS HAD) 25 THE COURT: All right. KANABAY COURT REPORTERS 44 1 MR. DEVLAMING: We don't need the court 2 reporter. 3 (A DISCUSSION WAS HAD OFF THE RECORD) 4 THE COURT: Okay. Before we took the 5 last break I forgot to tell you a couple 6 things. First of all, from this point 7 forward, especially if you're picked, but 8 until the proceeding, this selection 9 process, is over, you cannot discuss this 10 case amongst yourselves, nor can you read 11 any articles relating particularly to this 12 case. Nothing whatsoever. 13 Now, did anyone actually run out and grab 14 the paper in the last ten minutes? Raise your 15 hand if you did. It's okay to tell the truth. 16 You can't get in any trouble. Nobody's going to 17 jail. 18 PROSPECTIVE JUROR ROTHSCHILD: I've got 19 a paper. 20 THE COURT: Yeah. But the question is 21 did you read the paper? 22 PROSPECTIVE JUROR ROTHSCHILD: No. 23 THE COURT: So grabbing the paper is 24 fine. Please don't read any articles 25 related to this. I also forgot to do one KANABAY COURT REPORTERS 45 1 thing. Did you already invoke the rule 2 here? 3 MS. WARDELL: No, sir. 4 THE COURT: All right the rule of writ 5 and sequestration is at this time invoked. 6 Anyone who is in this courtroom and may be a 7 witness in these proceedings is ordered to 8 not discuss this matter and to leave the 9 courtroom at this time. 10 I have a couple of more questions for you 11 and then I'll turn the questioning over. 12 Everybody agree that if you don't like a 13 law you must still nonetheless follow the law? 14 Do we all agree with? 15 THE PROSPECTIVE JURORS: Yes. 16 THE COURT: Let me ask that again 17 because I'm asking for an audible answer. 18 We all agree that if you don't like the law 19 you have to follow that law? 20 THE PROSPECTIVE JURORS: Yes. 21 THE COURT: All right. From a show of 22 hands, if you just love to pay your taxes, 23 raise your hand. All right. Let the record 24 reflect that nobody raised their hands. I'm 25 happy to hear that. Now, but nonetheless, KANABAY COURT REPORTERS 46 1 we do pay those taxes because it is the law 2 and we have to support our republic. Does 3 everybody agree with that? 4 THE PROSPECTIVE JURORS: Yes. 5 THE COURT: Would you also agree that 6 if you want to change the law, the place to 7 change that law is in Tallahassee and not in 8 courtroom here today? 9 THE PROSPECTIVE JURORS: Yes. 10 THE COURT: Is that a fair assessment? 11 THE PROSPECTIVE JURORS: Yes. 12 THE COURT: So no matter how silly you 13 think that law is, you all can, nonetheless, 14 listen to the evidence, listen to the law 15 that I read to you and follow that law in 16 deciding your verdict? Can you do that? 17 THE PROSPECTIVE JURORS: Yes. 18 THE COURT: I'm going to read an 19 instruction to you. This is called the 20 reasonable doubt instruction. I'm going to 21 read it to you now and read to you again at 22 the end of the trial. 23 The State has the responsibility of proving 24 the defendant's guilt beyond and to the 25 exclusion of every reasonable doubt. You KANABAY COURT REPORTERS 47 1 don't -- the defendant in this case doesn't have 2 to prove or disprove anything. The definition 3 of reasonable doubt is as follows: 4 Whenever the words "reasonable doubt" are 5 used you should consider the following: 6 A reasonable is not a mere possible 7 doubt -- you all can hear me okay without the 8 microphone on? 9 THE PROSPECTIVE JURORS: Yes. 10 THE COURT: All right -- is not a, mere 11 possible doubt, a speculative, imaginary or 12 forced doubt. Such a doubt must not 13 influence you to return a verdict of not 14 guilty if you have an abiding conviction of 15 guilt. On the other hand, if, after 16 carefully considering, comparing and 17 weighing all the evidence, there is not an 18 abiding conviction of guilt, or, if, having 19 a conviction, it is one which is not stable 20 but one which wavers and vacillates, then 21 the charge is not proved beyond all 22 reasonable doubt and you must find the 23 defendant not guilty because the doubt is 24 reasonable. 25 It is to the evidence introduced in this KANABAY COURT REPORTERS 48 1 trial, and to it alone, that you are to look for 2 that proof. 3 A reasonable doubt as to the guilt of a 4 defendant may arise from the evidence, conflict 5 in the evidence or the lack of evidence. 6 If you have a reasonable doubt, you should 7 find the defendant not guilty. If you have no 8 reasonable doubt, you should find the defendant 9 guilty. 10 That is the definition of reasonable doubt. 11 That is the standard by which the State has to 12 prove this case today. And I'm going read it to 13 you again at the end of the trial and ask you 14 pay attention to it and to apply it. 15 But here's a question that I have that sort 16 of stems from that. Has anybody here ever seen 17 Perry Mason? Raise your hand. How about 18 Matlock? L.A. Law? Any of that? Ally McBeal? 19 Any of those other shows? The point I'm ready 20 to get at here is that you hear a whole lot of 21 stuff -- if you have a phone or a beeper, please 22 turn those off or place them on vibrate. 23 You hear a lot of stuff on those shows 24 about the law, and we unfortunately actually had 25 a juror once in the jury room say, Well, on KANABAY COURT REPORTERS 49 1 L.A. Law I saw this, or on The Verdict I saw 2 that. Well, you can't consider things that you 3 saw on L.A. Law or any of those other shows. 4 None of -- the truth is those things are really 5 not factual. 6 On one of those shows I actually saw an 7 attorney throw an appellate brief at an 8 appellate court judge. That would never happen. 9 She would lose her bar card. She would be face 10 down on the pavement. The bailiff would have 11 her in custody and she would be dragged out of 12 the courtroom. The point is that wouldn't 13 happen. So you can't rely on any of that stuff. 14 Mr. Matlock used to talk about what was the 15 shadow of a doubt. There's no such standard. 16 The standard is reasonable doubt. The thing 17 that I'm asking you all to do is to not pay any 18 attention to what you may have seen on those 19 shows and focus on the facts of this case, the 20 evidence in this case, and determine the guilt 21 or innocence of this defendant based solely on 22 this. 23 Is there anyone here who thinks that they 24 cannot do that? Let the record reflect that no 25 one has raised his or her hand at this time. KANABAY COURT REPORTERS 50 1 All right. Sympathy is a common emotion, 2 and it's one that we all have. You would not be 3 human if you did not have feelings of sympathy. 4 But sympathy is not legally a reasonable doubt. 5 You can't decide your verdict in this case 6 because you're angry at anyone or because you 7 feel sorry for anyone. 8 Is there anybody here who feels that they 9 could not set aside whatever sympathies you may 10 have for or against the State or the Defense in 11 this case and base your verdict solely on the 12 evidence? Is there anyone here who cannot do 13 that? Raise your hand if you can't. Let the 14 record reflect that again nobody has raised his 15 or her hand. 16 Now, it is often the occasion -- well, it 17 has happened in the past. Often maybe too 18 strong, but it has happened in the past that 19 from time to time people have not been able to 20 reach a verdict. They can't sit in judgment of 21 another person. 22 Let me suggest to you that you are not 23 today sitting in judgment of a person. You are 24 sitting in judgment of the facts of this case. 25 You are going to be listening to the facts and KANABAY COURT REPORTERS 51 1 determining whether or not from the facts the 2 State has proven the defendant's guilt beyond 3 and to the exclusion of every reasonable doubt. 4 But assume for the moment you believe you 5 are sitting in judgment of a person. Is there 6 anyone here who for whatever reason, religious, 7 social, moral, whatever reason, you don't think 8 that you, as you know yourself to, be can sit in 9 judgment of a person and render a verdict with 10 the understanding that you're going to be 11 finding a person either guilty or not guilty of 12 the charge? 13 Mind you, if the defendant ultimately is 14 found guilty here today, whatever sentence he 15 receives will be up to me, not you. So you 16 would be sitting in judgment solely of the facts 17 of this case. Is there anyone here who can't do 18 that, you feel that that's just something that 19 you should not be called upon to do? Raise your 20 hand if you think that reflect -- relates to 21 you. Again no hands went up. 22 Okay. As I look through my list of 23 questions, I am done, and I'm getting ready 24 to turn the questioning over to the 25 assistant state attorney. I would ask that KANABAY COURT REPORTERS 52 1 you pay careful attention to her also. 2 Thank you. You may proceed. 3 MS. WARDELL: Thank you, Judge. Good 4 morning. 5 THE PROSPECTIVE JURORS: Good morning. 6 (A BRIEF PAUSE) 7 MS. WARDELL: Good morning. 8 THE PROSPECTIVE JURORS: Good morning. 9 MS. WARDELL: I understand that each of 10 you all are here because of a summons, if 11 you will, that you received in your mail 12 box, and I want to talk to you a minute 13 about the morning or the evening that you 14 got that summons and realized today is the 15 day that you have to come down to this 16 complex and participate in jury selection. 17 Miss Scurlock, tell me about that. When 18 you got it, kind of what was going on in your 19 mind? 20 PROSPECTIVE JUROR SCURLOCK: Actually I 21 knew. I had came last month for a jury 22 selection, but I just -- I was graduating 23 from college and I had my midterms due, so I 24 couldn't serve last time so I knew I had to 25 come. KANABAY COURT REPORTERS 53 1 MS. WARDELL: Okay. And because of 2 knowing ahead of time, did that give you the 3 luxury, if you will, of making arrangements 4 for today and possibly tomorrow if you're 5 available? 6 PROSPECTIVE JUROR SCURLOCK: Right. 7 MS. WARDELL: Well, that's good for 8 you. Is there anybody else that had that 9 convenience that they knew ahead of time 10 prior to going out to their mail box that 11 today was the day they were going to have to 12 come in? 13 Miss Scurlock, I see you work with R'Club. 14 Were you able to get -- that involves children, 15 right? 16 PROSPECTIVE JUROR SCURLOCK: Right. 17 MS. WARDELL: Were you able to get your 18 duties and responsibilities covered for 19 today? 20 PROSPECTIVE JUROR SCURLOCK: Yes. 21 MS. WARDELL: Okay. Good. 22 Miss Matthews, same question to you. I see 23 that you're a teacher. 24 PROSPECTIVE JUROR MATTHEWS: Yes. 25 MS. WARDELL: When you got your summons KANABAY COURT REPORTERS 54 1 did you -- were you immediately able go to 2 your supervisor or the principal and make 3 arrangements for today? 4 PROSPECTIVE JUROR MATTHEWS: Yes, I 5 was. 6 MS. WARDELL: If you're selected to be 7 seated on this jury, are your thoughts and 8 attentions going to be distracted to the 9 children you've left behind and whether or 10 not the substitute is going to adaquately 11 cover? 12 PROSPECTIVE JUROR MATTHEWS: I would 13 say no. 14 MS. WARDELL: Okay. And, if selected, 15 can you give your full focus and attention 16 on the evidence and the facts as presented 17 by both the State and the Defense against 18 Mr. Prince? 19 PROSPECTIVE JUROR MATTHEWS: Yes, 20 ma'am. 21 MS. WARDELL: And I know it's the end 22 of the year, and is school not quite out for 23 you all? 24 PROSPECTIVE JUROR MATTHEWS: June 9th 25 is the last day of school. KANABAY COURT REPORTERS 55 1 MS. WARDELL: Okay. All right. Good. 2 Miss Tsikos, same question to you. Tell me 3 about being here today and learning that today 4 was the day. Is there anything going on in your 5 background or work related that this presents a 6 problem for you? 7 PROSPECTIVE JUROR TSIKOS: No. I'm 8 free. And I've known for several weeks that 9 I would be here today, so I don't have a 10 problem. I am retired. 11 MS. WARDELL: Okay. A lot of times I 12 find especially here in Pinellas County that 13 some folks are responsible for other folks. 14 In other words, they have elderly 15 fathers-in-law or mothers to take care of 16 and they need to be with these -- these 17 individuals rely on them, whether it's small 18 children or elderly adults. 19 Is there anybody here who has that type of 20 responsibility that if they're selected they are 21 going to be wondering whether their elderly 22 patient it going to get their medicine and 23 things of that nature that needs to be done? Is 24 there anybody responsible for somebody else? 25 Okay. That's a no? All right. KANABAY COURT REPORTERS 56 1 Mr. Bar -- is it, I'm sorry, Bartocci? 2 PROSPECTIVE JUROR BARTOCCI: Bartocci. 3 MS. WARDELL: Is the mail going to get 4 delivered today without do you being there? 5 PROSPECTIVE JUROR BARTOCCI: It always 6 does. 7 MS. WARDELL: Same question to you. I 8 think it's, Mr. Wright, same thing. Is 9 somebody covering your route? 10 PROSPECTIVE JUROR WRIGHT: Yes. 11 MS. WARDELL: Was it a problem for you 12 to get your route covered? 13 PROSPECTIVE JUROR WRIGHT: No, no 14 problem at all. 15 MS. WARDELL: So if you're selected to 16 sit up here, are you going to wonder whether 17 those dogs are going to be attacking 18 somebody else and will your focus be 19 distracted? 20 PROSPECTIVE JUROR WRIGHT: No, I won't 21 be distracted. 22 MS. WARDELL: Because keep in mind the 23 whole point and the purpose behind this is 24 that we all, both sides, want six 25 individuals who are going to be fair and KANABAY COURT REPORTERS 57 1 impartial. Of course Miss Wardell on behalf 2 of the State wants six folks to vote that 3 the defendant is guilty beyond a reasonable 4 doubt, and Mr. DeVlaming on behalf of 5 Mr. Prince wants six individuals to say no 6 way, State, you didn't do your job. But we 7 have a common thread. We have a common goal 8 here, and that is that we select six of you, 9 who, no matter what your decision is, you 10 will treat this case openly and fairly and 11 listen to all the facts before you make your 12 decision. 13 Is there anybody for whatever reason 14 whatever distraction might be in your mind, be 15 it your job, be it your work, be it your family 16 responsibilities, that can't do that? 17 Mr. Rothschild? 18 PROSPECTIVE JUROR ROTHSCHILD: Yes, 19 ma'am. 20 MS. WARDELL: Anything going on in your 21 background as relates to work or home that 22 might distract your attention? 23 PROSPECTIVE JUROR ROTHSCHILD: Not 24 really. I just started a new job, but it 25 won't be distracting I don't think. KANABAY COURT REPORTERS 58 1 MS. WARDELL: Okay. Is this with the 2 medical equipment? Is that covered? 3 PROSPECTIVE JUROR ROTHSCHILD: It's 4 covered, yes. 5 MS. WARDELL: Okay. Miss Dake, I think 6 I wrote down that you have a manager-type 7 position. Is this a hardship for you to be 8 here today? I know that means you're 9 responsible for others. 10 PROSPECTIVE JUROR DAKE: No. I have 11 four interns. 12 MS. WARDELL: Okay. Good. Good. 13 That's lucky for you. Okay. Well, hearing 14 no other voices and seeing no other hands, 15 I'm going to move on with the understanding 16 that anybody that's selected out of this 17 group has no outside distractions, whether 18 it be work or family related. 19 The judge touched on it briefly with 20 regards to the burden of doubt here, and I 21 believe that he covered that area 22 satisfactorily, and I just want to make sure 23 that you understand that I do have the burden in 24 this case. 25 I'm a representative of Mr. McCabe, the KANABAY COURT REPORTERS 59 1 State of Florida, and the burden is right here 2 on me, squarely on me, and I want each and every 3 one of you to agree that you will hold me to my 4 job and nothing more than my job. 5 The judge talked about a shadow of a doubt, 6 and we have a reasonable doubt, and then, of 7 course, we have, you know, maybe, maybe not. I 8 don't want a maybe, maybe not. I don't want a 9 speculation. I don't want a proof by all doubt. 10 That's absolutely impossible. Unless you were 11 there and saw it for yourself, you're never 12 going to convince yourself proof by all doubt. 13 Is there anybody here that wants me to live 14 up to a higher standard? Anybody that thinks 15 that a reasonable doubt isn't good enough? 16 Mr. Garrison, is reasonable doubt a good 17 enough standard for you? 18 PROSPECTIVE JUROR GARRISON: Yes, it 19 is. 20 MS. WARDELL: Can you hold me to that 21 burden and that alone? 22 PROSPECTIVE JUROR GARRISON: Yes. 23 MS. WARDELL: Mr. Swonger? 24 PROSPECTIVE JUROR SWONGER: Yes, ma'am. 25 MS. WARDELL: Same question. KANABAY COURT REPORTERS 60 1 PROSPECTIVE JUROR SWONGER: Yeah. 2 MS. WARDELL: Do you expect more of me? 3 PROSPECTIVE JUROR SWONGER: No. 4 MS. WARDELL: Do you expect less of me? 5 PROSPECTIVE JUROR SWONGER: No, ma'am. 6 MS. WARDELL: Mr. Lovett, you expect 7 more of me? 8 PROSEPCTIVE JUROR LOVETT: No, ma'am. 9 MS. WARDELL: Do you think somebody 10 sitting here on criminal charges on trial 11 today, a very important day for Mr. Prince, 12 do you think because of that I should have 13 some higher burden? 14 PROSEPCTIVE JUROR LOVETT: No, ma'am. 15 MS. WARDELL: Is there anybody that 16 thinks I should have a higher burden? Okay. 17 Let the record reflect no hands. 18 Is there anybody who thinks, hey, wait a 19 minute, he is sitting there, where there's 20 smoke, there's fire, you don't need to have that 21 kind of burden, let's have a little bit lower 22 burden? Anybody who thinks just because he is 23 sitting there something wrong happened here? 24 You heard the phrase "presumption of 25 innocence." This is a criminal trial. It's not KANABAY COURT REPORTERS 61 1 a civil trial. Okay? Right now as Mr. Prince 2 sits before you he is what we call, quote, 3 presumed innocent. Is that a phrase that you 4 all have heard before? A nod of heads? Yes? 5 Okay. Can each of you, as we sit here now, 6 presume Mr. Prince innocent? Okay. 7 Miss Carter, I see you nodding your head. 8 PROSPECTIVE JUROR CARTER: Yes. 9 MS. WARDELL: Okay. And now, of 10 course, the converse of that and what I'm 11 going to ask you to do for me is once the 12 witnesses start to testify and once the 13 evidence begins to come out, can you agree 14 that you'll give me a fair shake at chipping 15 away at that presumption, and can you agree 16 that he may not have that presumption come 17 the end of the trial? Is that -- does 18 everybody understand that? 19 Mr. Wilson, I see you're nodding your head. 20 PROSPECTIVE JUROR WILSON: Yes. 21 MS. WARDELL: You agree right now he's 22 presumed innocent, but once the curtain 23 lifts, if you will, the State has a fair 24 shot of putting on the evidence, right, 25 Mr. Wickett? KANABAY COURT REPORTERS 62 1 PROSPECTIVE JUROR WICKETT: Yes. 2 MS. WARDELL: Is that fair? 3 PROSPECTIVE JUROR WICKETT: (Indicates.) 4 MS. WARDELL: Can you agree to that? 5 PROSPECTIVE JUROR WICKETT: Yes. 6 MS. WARDELL: Okay. Mr. Herdman? 7 PROSPECTIVE JUROR HERDMAN: Yes. 8 MS. WARDELL: Same question. Right 9 now, presumed innocent, end of the trial, 10 consider the facts and the evidence, and 11 maybe not give him that cloak? 12 PROSPECTIVE JUROR HERDMAN: Yeah. 13 MS. WARDELL: Okay? 14 PROSPECTIVE JUROR HERDMAN: Yes. 15 MS. WARDELL: Okay. All right. 16 Anybody that doesn't understand that 17 proposition or has a problem with that? All 18 right. 19 I want to give you an example, if you will, 20 and I want to ask you what you would think based 21 upon this example. Okay? 22 And, Miss Lepley, all right, I'm going to 23 ask you the question so I'll let you know it's 24 coming ahead of time. All right? We got two 25 women working at K Mart. They work side by side KANABAY COURT REPORTERS 63 1 and they're cashiers. These two women have 2 something in common. They used to date the same 3 guy. They didn't know each other was dating the 4 same guy. Now they do not like each other. 5 They don't like each other at all. 6 Day by day they sit there gritting their 7 teeth ringing their customers out. Well, 8 cashier number one sees cashier number two stick 9 some merchandise in her purse. Cashier number 10 one goes to the manager and says, "She's got 11 merchandise in her purse." Now, the manager 12 knows there is this hot history between the two. 13 With nothing more, nothing more -- 14 MR. DEVLAMING: Judge, I'm going to 15 object and ask to approach. 16 THE COURT: Please. 17 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 18 MR. DEVLAMING: Normally I don't like 19 to object to in voir dire, but I see where 20 she's heading. She's trying to get the jury 21 to precommit to a certain aspect of this 22 case and, that is whether or not -- I 23 imagine whether or not they would discredit 24 or hold it against somebody with use of this 25 hypothetical, and I think it is more towards KANABAY COURT REPORTERS 64 1 preconditioning of the jury than it is 2 towards getting an honest answer. 3 THE COURT: Is that where you're 4 headed? 5 MS. WARDELL: I'm heading with just 6 because the two people don't like each 7 other, in terms of the intentions of 8 somebody else, is that enough to make them 9 have a problem with the case? I mean, 10 that's the whole thing about -- 11 THE COURT: Overruled. 12 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 13 MS. WARDELL: Okay. So, Miss Lepley, 14 you're the manager. Based solely on cashier 15 number one, who you know has a contentious 16 relationship with cashier number two, do you 17 believe cashier number two has done 18 something wrong? 19 PROSPECTIVE JUROR LOVELY: Are you 20 talking to me? 21 MS. WARDELL: Yes, ma'am. 22 PROSPECTIVE JUROR LOVELY: Okay. My 23 name's Lovely. 24 MS. WARDELL: Oh, I'm sorry. 25 Miss Lovely. KANABAY COURT REPORTERS 65 1 PROSPECTIVE JUROR LOVELY: Okay. What 2 was -- sorry. What was the question again? 3 MS. WARDELL: Okay. The two cashiers 4 clearly dislike each other. The manager 5 knows it. You're the manager. 6 PROSPECTIVE JUROR LOVELY: Okay. 7 MS. WARDELL: Cashier number one comes 8 to you and says cashier number two has 9 concealed merchandise in her purse. Based 10 solely on the person who you know doesn't 11 like the other one telling you that, do you 12 believe it? 13 PROSPECTIVE JUROR LOVELY: Well, I 14 presume you're asking me this because you've 15 seen what my husband does for a living. 16 MS. WARDELL: No, ma'am. Is he -- 17 PROSPECTIVE JUROR LOVELY: He is a 18 retail manager. 19 MS. WARDELL: Oh, well then, good. You 20 were a good person -- 21 PROSPECTIVE JUROR LOVELY: I know that 22 he would question them about it. 23 MS. WARDELL: He would do something 24 more? 25 PROSPECTIVE JUROR LOVELY: He would KANABAY COURT REPORTERS 66 1 just question them. 2 MS. WARDELL: Okay. And, Miss Lepley, 3 I'm sorry. I was -- I got my boxes off. 4 Same question to you. Based solely on the 5 word of the cashier who dislikes the other 6 cashier, do you believe it? 7 PROSPECTIVE JUROR LEPLEY: I would 8 agree, I think you need to go ahead and 9 investigative and find out whether she does 10 have this and talk to her. 11 MS. WARDELL: You would like some 12 corroboration? 13 PROSPECTIVE JUROR LEPLEY: I would, 14 uh-huh, yes. 15 MS. WARDELL: What if you, yourself, 16 went to the purse and saw the concealed 17 merchandise? Would that make you feel 18 better about it? 19 PROSPECTIVE JUROR LEPLEY: I don't 20 think you could go into the person's things. 21 MS. WARDELL: Well, taking all those 22 outside issues, you have the purse and you 23 see the merchandise. Would that be your 24 independent corroboration? 25 PROSPECTIVE JUROR LEPLEY: I think so. KANABAY COURT REPORTERS 67 1 I would raise the issue and talk to the 2 person. 3 MS. WARDELL: Okay. Miss Carter, same 4 question to you. You know there's a 5 contentious relationship. Are you satisfied 6 just with one pointing the finger at the 7 other, or do you want something more? 8 PROSPECTIVE JUROR CARTER: I would want 9 something more. 10 MS. WARDELL: And if you have something 11 more, is that sufficient? 12 PROSPECTIVE JUROR CARTER: Yes. 13 MS. WARDELL: Okay. Is there anybody 14 who I don't care how much evidence you have 15 against cashier two, just because cashier 16 one told you about it and you know they 17 don't like it, that's not enough? You could 18 have a confession, you could have the 19 merchandise, you could have a hidden video 20 camera, but just because cashier number one 21 who doesn't like cashier number two told you 22 about it, is that enough to let cashier two 23 go? Anybody think that? 24 Mr. Swonger, you know what I'm asking? 25 PROSPECTIVE JUROR SWONGER: Yes, ma'am. KANABAY COURT REPORTERS 68 1 MS. WARDELL: What do you think? Do 2 you let them walk just because they don't 3 like each other? 4 PROSPECTIVE JUROR SWONGER: If you go 5 on the facts and information and prove that 6 he's guilty. 7 MS. WARDELL: You want to see 8 everything? 9 PROSPECTIVE JUROR SWONGER: Yes. 10 MS. WARDELL: Okay. Is there anybody 11 that has a different opinion than that? 12 Mr. Lovett, just because they don't like 13 each other and just because this one brings it 14 to the attention of manager, is that enough to 15 let her walk? 16 PROSEPCTIVE JUROR LOVETT: No. I'm 17 like him. I need all the information. 18 MS. WARDELL: You want the see it all? 19 PROSEPCTIVE JUROR LOVETT: Uh-huh. 20 MS. WARDELL: Okay. Is there anybody 21 that has a different opinion than that? I'm 22 not going to go one by one and ask the exact 23 same question, but I hope -- and the same 24 courtesy to Mr. DeVlaming. If you do have 25 an answer that is different than somebody, KANABAY COURT REPORTERS 69 1 raise your hand and speak up. 2 Mr. Wright, same question. 3 PROSPECTIVE JUROR WRIGHT: Same. I 4 would. 5 MS. WARDELL: Consensus. Cashier one 6 alone is not enough, but let's look at the 7 other stuff too? 8 PROSPECTIVE JUROR WRIGHT: Yes. Look 9 at more information, gather the information, 10 and make a determination. 11 MS. WARDELL: Okay. 12 Darryl Strawberry's been in the press a lot, 13 and I want to talk to you about that a 14 minute. Okay? Have you all been following 15 that story? Is there anybody here that 16 hasn't somewhat followed the story? You 17 haven't? Okay. Well, basically 18 Mr. Strawberry was on probation, it was drug 19 related, and as he was leaving a meeting 20 somebody who's a known in the area -- 21 MR. DEVLAMING: Judge, I'm going to 22 object. 23 THE COURT: Approach. 24 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 25 THE COURT: I'm trying to figure out KANABAY COURT REPORTERS 70 1 where you're heading with this hypothetical. 2 MS. WARDELL: Okay. On this one the 3 crackhead drives up to Mr. Strawberry and he 4 takes a hit, maybe he's a confidential 5 informant. I'm trying to get at because the 6 crackhead is the one that provided it, 7 Mr. Strawberry shouldn't be punished. The 8 whole defense is I was set up by somebody. 9 MR. DEVLAMING: Okay. The Simmons case 10 was in the news. Defense lawyers were 11 recently shut down by talking about other 12 actual cases in order to get the jurors 13 opinions as to whether or not they agreed or 14 disagreed with certain things. I don't have 15 a problem with her -- 16 THE COURT: I'll sustain the objection. 17 I think you need to ask the question in a 18 different way. In fact, why don't you just 19 ask the question? 20 MS. WARDELL: Do you have a problem 21 with giving my example and not using 22 Darryl Strawberry's name? You know, what is 23 that thing, you put the what -- you put the 24 food in front of the mouth, what is that 25 phrase? Dangling the carrot in front of the KANABAY COURT REPORTERS 71 1 nose, do you bite? 2 MR. DEVLAMING: I'm saying you can ask 3 the question without giving the specific of 4 the Strawberry case. 5 THE COURT: Frankly, I think what you 6 ought to do is just ask the question. 7 However, I'm somewhat concerned that you are 8 going to get into the facts of the case or 9 and the method in which you would ask the 10 question may in some way create a problem 11 for you. Okay. Let's try to ask the 12 question without using Darryl Strawberry's 13 name. 14 MS. WARDELL: Let me think about that. 15 What's the Court suggested way? If you 16 found out that one of the witnesses in this 17 case is such and such, are you going to 18 object to that? No, that's not -- one of 19 the witnesses in this case is -- 20 MR. DEVLAMING: No. Don't even say it 21 that way. Then you're talking about the 22 case. I think you can ask them if you want, 23 Lydia, if they have any preconceived notions 24 about using confidential informants. That's 25 what you want to know. KANABAY COURT REPORTERS 72 1 THE COURT: Well -- 2 MS. WARDELL: I'm just trying to find 3 out if they are going to let number two go 4 because number one is just as bad as number 5 one. 6 THE COURT: Ask that question. 7 MS. WARDELL: All right. 8 THE COURT: If you find out that number 9 one is as bad as two or one is just as bad 10 as the other one, can you evaluate the 11 person's testimony the same way? 12 MS. WARDELL: Okay. 13 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 14 MS. WARDELL: Okay. I'm going to do my 15 best to convey this question without 16 bringing Mr. Strawberry into this. Okay? 17 But let's say you have the scenario where 18 number two is doing something he shouldn't be 19 doing, but he is doing that because the carrot, 20 if you will, was dangled in front of his nose by 21 number one, so you may not like number one 22 dangling the carrot, but number two bit the 23 carrot, do you think just because number one may 24 have done something you didn't wrong -- I mean 25 you didn't like and you don't care for number KANABAY COURT REPORTERS 73 1 one, would you let number two go? Mr. Ondich? 2 PROSPECTIVE JUROR ONDICH: You lost me 3 there. 4 MS. WARDELL: Yeah. All right. 5 PROSPECTIVE JUROR ONDICH: I got -- I'm 6 lost. 7 MS. WARDELL: Okay. Number one dangles 8 the carrot in front of number two. 9 PROSPECTIVE JUROR ONDICH: Okay. 10 MS. WARDELL: Number two bites. 11 PROSPECTIVE JUROR ONDICH: Okay. 12 MS. WARDELL: Number one had the carrot 13 and passed it on to number two. Does number 14 two get away with what he did just because 15 number one put I out there? 16 PROSPECTIVE JUROR ONDICH: No. 17 MR. DEVLAMING: Objection. Well, your 18 Honor, I'm going to object. I think we need 19 to go into entrapment issues and all the 20 rest of it in order for this jury to make a 21 determination about this number one and 22 number two type of scenario. 23 MS. WARDELL: Okay. I'm trying to use 24 generics. 25 MR. DEVLAMING: I don't think that KANABAY COURT REPORTERS 74 1 question can be answered effectively by any 2 of these jurors -- 3 MS. WARDELL: If we're going to argue, 4 may we approach the bench? 5 THE COURT: Approach please. 6 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 7 THE COURT: I don't understand -- 8 here's the thing. You absolutely have the 9 right to determine, to ask whether or not 10 these jurors can be fair and impartial and 11 whether or not they will automatically 12 assume that just because two people involved 13 both have some sort of -- 14 MS. WARDELL: Dirty hands. 15 THE COURT: -- dirty hands that one 16 person is not guilty and the other one is. 17 But this -- fashion a question that says 18 that. In other words, I don't know why you 19 have to have the hypo. 20 MS. WARDELL: I'm telling the hypo as 21 part of the question. 22 THE COURT: Well, the question is fair. 23 The hypo seems to be confusing everybody. 24 MR. DEVLAMING: I agree with the, 25 Judge. I think, Lydia, you can ask the KANABAY COURT REPORTERS 75 1 question the way he is telling -- kind of 2 suggesting that you ask it without giving a 3 hypothetical. 4 MS. WARDELL: If two people have dirty 5 hands, can one walk away just because the 6 other's may be dirty too? 7 MR. DEVLAMING: I'll tell you how to do 8 it to save some time. 9 THE COURT: Yeah. Go ahead. 10 MR. DEVLAMING: Well, I know what Lydia 11 is doing. I'm just going to say, to help 12 things out, the way I usually do it is I 13 will say to a jury if you have a situation 14 where two people are drag racing, which is 15 unlawful, down the road, a cop sees the drag 16 racer, however, they come to a fork in the 17 road, they're both responsible, does the cop 18 let them both go or go after one in order to 19 catch them? 20 MS. WARDELL: How is that different? 21 It's the same. 22 THE COURT: I think that's the same. 23 MS. WARDELL: I don't think it's 24 better, but I'll -- 25 THE COURT: I think that's exactly the KANABAY COURT REPORTERS 76 1 same. I'm going to overrule the Defense's 2 Darryl Strawberry argument. 3 MR. DEVLAMING: Your Honor, is the 4 Court going to allow her to use the 5 Darryl Strawberry case as well as his name 6 and talk about the facts of that case? 7 THE COURT: I'm going to let her use 8 his name. Is there something to do with the 9 facts here? 10 MS. WARDELL: No. I'm just going to 11 say that somebody offered him cocaine. 12 MR. DEVLAMING: Judge, I strongly 13 object to that. I strongly object on this 14 record that you will allow the prosecutor to 15 use an active case in this community that 16 was in the newspaper. 17 MS. WARDELL: It's not active. 18 MR. DEVLAMING: It was very recently 19 active and highly televised in the news 20 media, yeah. I object. 21 THE COURT: All right. Go ahead. 22 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 23 THE COURT: We're trying to correct the 24 PA problem. About thirty seconds here. Go 25 ahead, Miss Wardell. KANABAY COURT REPORTERS 77 1 MS. WARDELL: Okay. I promise I'm not 2 trying to confuse you, but I think I'm going 3 to go back to Mr. Strawberry because I think 4 that might simplify it a little bit better. 5 Okay? 6 Mr. Shea? 7 PROSPECTIVE JUROR SHEA: Yeah. 8 MS. WARDELL: All right. In the 9 Strawberry case an individual who is a known 10 crackhead, if you will, someone that lives 11 on the streets that had all kinds of access 12 to crack, picks up Mr. Strawberry, lights 13 the pipe and puts it in front of his nose. 14 Mr. Strawberry takes a hit off that pipe. 15 Mr. Strawberry is then punished in court for 16 what he did with regard to the person 17 putting it in front of his nose. 18 Do you think because you have somebody 19 repugnant, somebody odious, somebody off the 20 street who goes to Mr. Strawberry and says, 21 "Here, smoke this," do you think the fact that 22 somebody put it in front of his nose means that 23 he shouldn't have been punished for what he did? 24 MR. DEVLAMING: Once again, Judge, I 25 impose my objection as stated at the bench. KANABAY COURT REPORTERS 78 1 MS. WARDELL: You can answer the 2 question. 3 PROSPECTIVE JUROR SHEA: Should I 4 answer? 5 MS. WARDELL: Yes. 6 PROSPECTIVE JUROR SHEA: Yeah, I would 7 say no. 8 MS. WARDELL: You think he should be 9 held accountable for his actions and she 10 should be accountable for hers? 11 PROSPECTIVE JUROR SHEA: They're 12 independent of each other. 13 MS. WARDELL: Okay. Mr. Ezell, did you 14 understand that set of facts? 15 PROSPECTIVE JUROR EZELL: (Indicates.) 16 MS. WARDELL: Sets it right up there to 17 his nose. It's kind of hard to turn away. 18 He does what he does. Does he get off 19 because somebody else fed it to him? 20 PROSPECTIVE JUROR EZELL: No. 21 MS. WARDELL: Do you have a problem 22 with him being punished for what he did? 23 PROSPECTIVE JUROR EZELL: He should be 24 punished because he already knew that he 25 shouldn't. KANABAY COURT REPORTERS 79 1 MS. WARDELL: Okay. What about you? 2 Same question. 3 PROSPECTIVE JUROR TSIKOS: I feel the 4 same way. 5 MS. WARDELL: Okay. No matter how 6 repugnant she is for sticking it right there 7 knowing that he, you know, had these 8 problems? 9 PROSPECTIVE JUROR TSIKOS: He would 10 still have had the responsibility of taking 11 it. 12 MS. WARDELL: So you can look at the 13 two and decide, okay, you're responsible for 14 (a), you're responsible for (b), and I'm 15 going to hold you each accountable for what 16 you did, correct? 17 PROSPECTIVE JUROR TSIKOS: Yes. 18 MS. WARDELL: Anybody -- without going 19 one by one again, is there anybody that has 20 a view different than that? Is there 21 anybody that says, hold on, wait a minute, 22 you can't send somebody like that, stick 23 that up under Mr. Strawberry's nose and not 24 think he is going do that, no fair to 25 Mr. Strawberry? Anybody? Back row, KANABAY COURT REPORTERS 80 1 anybody? 2 I'm not getting much of a reaction. Let 3 me -- does everybody agree with what's been 4 previously stated, everybody's responsible for 5 their own actions and their own participations? 6 THE PROSPECTIVE JURORS: Yes. 7 MS. WARDELL: Is that a yes from 8 everybody? 9 THE PROSPECTIVE JURORS: Yes. 10 MS. WARDELL: You heard the judge talk 11 at the beginning of this case it's going to 12 involve marijuana. There's a lot of 13 different views out there on marijuana. 14 Just, you know, people think it's has 15 medicinal purposes. People think it's just 16 no big deal. 17 I want to touch briefly on some of you 18 all's views. And I don't mean to put you on the 19 spot, and if you think you're going to say 20 something that you don't want everybody else to 21 hear because of your personal situation or 22 friends that you know or something, we'll 23 approach the bench. Okay? 24 But I kind of want to get a showing of 25 hands if you sort of think that marijuana is no KANABAY COURT REPORTERS 81 1 big deal. Smoke a joint, you know, it's really 2 not worse than taking a few shots of liquor or 3 something? 4 Mr. Wicket, do you have the "no big deal" 5 marijuana view? 6 PROSPECTIVE JUROR WICKETT: I know it's 7 illegal to possess and use. But other than 8 that, no. 9 MS. WARDELL: Do you think there are 10 times it's okay to have it? 11 PROSPECTIVE JUROR WICKETT: No, because 12 it's not -- it's illegal. It's an illegal 13 substance. 14 MS. WARDELL: This is difficult 15 question because I know it puts you on the 16 spot. 17 Mr. Ondich? 18 PROSPECTIVE JUROR ONDICH: It's 19 illegal. You shouldn't have it, but in 20 certain cases -- I have a friend of mine 21 that was suffering from severe cancer and he 22 had no appetite, and he says when he smoked 23 marijuana it increased his appetite and then 24 he would eat. And that's the only time he 25 used it. I was never around when he did it, KANABAY COURT REPORTERS 82 1 so I wouldn't witness him use it or 2 anything. 3 MS. WARDELL: So would you like to know 4 the reason the person has it? 5 PROSPECTIVE JUROR ONDICH: Yeah. 6 MS. WARDELL: In other words, just 7 recreation versus does that person really 8 think in their mind there is a reason for 9 it? 10 PROSPECTIVE JUROR ONDICH: Yes. 11 MS. WARDELL: That come into play? 12 PROSPECTIVE JUROR ONDICH: Yes. 13 MS. WARDELL: That's fair. Is there 14 anybody that has that opinion? 15 Miss Scurlock? Or do you think no matter 16 what the reason is, if the law says no, then no? 17 PROSPECTIVE JUROR SCURLOCK: Well, 18 you're asking me, and I just graduated as an 19 RN. And I believe in certain instances 20 there is research now on marijuana use as 21 far as cancer patients go, and it's illegal 22 so I personally wouldn't do it, but if it 23 became legal, I, of course, would accept it 24 as drug treatment for cancer because it's 25 proven. KANABAY COURT REPORTERS 83 1 MS. WARDELL: So would you like to know 2 whether the case involved recreational use 3 versus a legitimate -- 4 PROSPECTIVE JUROR SCURLOCK: If it 5 became legal for use, then yes. 6 MS. WARDELL: All right. Okay. Is 7 there anybody that just sort of has the 8 marijuana is no big deal opinion? Anybody? 9 Hey, you know, it's just a joint. Let it 10 go. 11 Mr. Osborn, what do you think about that? 12 PROSPECTIVE JUROR OSBORN: (Indicates.) 13 MS. WARDELL: No opinion? 14 PROSPECTIVE JUROR OSBORN: No, ma'am. 15 MS. WARDELL: Okay. All right. So 16 basically, kind of the point of that is you 17 follow the law like the judge said kind of 18 whether you like it or not. So what? You 19 know, maybe a joint's not that big of a 20 deal, but the letter of the law says you're 21 not supposed to have it, so you're not 22 supposed to have it? Can everybody agree to 23 that? 24 THE PROSPECTIVE JURORS: Yes. 25 MS. WARDELL: Now, I always use the KANABAY COURT REPORTERS 84 1 example of it's against the law to ride down 2 the sidewalk on a Wednesday in red socks, 3 and somebody sees the man on the sidewalk on 4 his bicycle in red socks. Okay? Well, it 5 may be kind of dumb, but if that law was on 6 the books, would you convict him? 7 Mr. Swonger? 8 PROSPECTIVE JUROR SWONGER: I agree 9 with Mr. Andrews, we're not going to change 10 the law here. You go through Tallahassee. 11 MS. WARDELL: That's an important 12 point, you know. No matter what your views 13 on whether marijuana should be legalized or 14 allowed for medicinal purposes, today's not 15 the day to argue that point. Today's a 16 pretty black and white day. Either he did 17 or didn't possess. That's the bottom line 18 here. 19 I want to ask you, each of you, if you have 20 heard the phrase "keep your eye on the ball." 21 Miss Carter, keep your eye on the ball, have you 22 heard that phrase? 23 PROSPECTIVE JUROR CARTER: Yes. 24 MS. WARDELL: Does anybody here have 25 children in little league? KANABAY COURT REPORTERS 85 1 PROSEPCTIVE JUROR LOVETT: Yes. 2 MS. WARDELL: Okay. Mr. Lovett. You 3 ever gone to watch them play? 4 PROSEPCTIVE JUROR LOVETT: I coach. 5 MS. WARDELL: You coach them. You ever 6 notice one of them may be out there in left 7 field and he's sort of drifting and he is 8 kind of looking at the stands and maybe 9 thinking about, you know, the cotton candy 10 that he would rather be having, and you tell 11 him get back in the game, get your eye back 12 on the ball? 13 PROSEPCTIVE JUROR LOVETT: Yes. 14 MS. WARDELL: Is that something you 15 have to tell them quite often? 16 PROSEPCTIVE JUROR LOVETT: No. 17 MS. WARDELL: Anybody else have kids 18 here in little league? 19 PROSEPCTIVE JUROR LOVETT: I say on my 20 team, no. 21 MS. WARDELL: Oh, you keep their 22 attention focused? 23 PROSEPCTIVE JUROR LOVETT: Yes, ma'am. 24 MS. WARDELL: And you tell them that, 25 keep your eye on the ball, stay in the game, KANABAY COURT REPORTERS 86 1 let's get your head straight? 2 PROSEPCTIVE JUROR LOVETT: Yes, ma'am, 3 definitely. 4 MS. WARDELL: Miss Carter? 5 PROSPECTIVE JUROR CARTER: Yes. 6 MS. WARDELL: Do you coach or just go 7 and watch? 8 PROSPECTIVE JUROR CARTER: Just watch. 9 MS. WARDELL: Ever notice one of them 10 out in the outfield and you sort of have to 11 go to get them back and remind them what the 12 focus is? 13 PROSPECTIVE JUROR CARTER: Yes. 14 MS. WARDELL: Same thing like with 15 dance classes, or, you know, maybe you're 16 sitting at a seminar and the lecturer's up 17 there and you're like, whoa, and you have to 18 remind yourself, whoa, I got to pay 19 attention to what's going on. Okay? 20 So I just ask that each of you promise me 21 that you will keep your eye on the ball here and 22 stay in the game and not lose the forest for the 23 trees, so to speak, and let some things distract 24 you. Okay? 25 The judge talked to you about sympathy, so KANABAY COURT REPORTERS 87 1 I'm not going to repeat that. Oh, I know one 2 question. 3 Miss Scurlock, do you know Yolanda Gonzales 4 with R'Club? 5 PROSPECTIVE JUROR SCURLOCK: I don't -- 6 the name doesn't sound familiar. 7 MS. WARDELL: She had a case that I was 8 involved in. I just wanted to make sure she 9 didn't discuss that with you. 10 PROSPECTIVE JUROR SCURLOCK: Oh, no. I 11 don't -- they're all different. I'm at the 12 Exceptional Ed. Center. So we are totally 13 different. 14 MS. WARDELL: All right. So you never 15 talked to her about anything she had to do 16 here? 17 PROSPECTIVE JUROR SCURLOCK: No. I 18 don't know. 19 MS. WARDELL: Is there anybody that's 20 had friends or family members recently 21 involved with the court system? I wrote 22 down a couple. I'm sorry. 23 Mr. Ondich? 24 PROSPECTIVE JUROR ONDICH: I'm in it 25 now with my wife. She -- we're going after KANABAY COURT REPORTERS 88 1 a child support case, and we spoke to our 2 attorney yesterday and I asked him and he 3 said it doesn't really matter that I do. 4 But since you asked that question she, is 5 involved. I am not really involved. I just 6 go to support her, and they said they're 7 supposed to get back to us today about 8 setting a judgment. 9 MS. WARDELL: Do you actually come 10 down -- 11 PROSPECTIVE JUROR ONDICH: I've never 12 been here before. 13 MS. WARDELL: So you haven't been here. 14 Is the State involved with DCF or any of 15 those folks involved with it? 16 PROSPECTIVE JUROR ONDICH: I really 17 truly don't know. 18 MS. WARDELL: Okay. 19 PROSPECTIVE JUROR ONDICH: I stay out 20 of it because it's her deal. 21 MS. WARDELL: There is nothing about 22 that that might make you harbor some 23 prejudice against the State -- 24 PROSPECTIVE JUROR ONDICH: Correct. 25 MS. WARDELL: -- because of whatever is KANABAY COURT REPORTERS 89 1 going on with her? 2 PROSPECTIVE JUROR ONDICH: Correct. 3 MS. WARDELL: Okay. I'm sorry. Who 4 else raised their hand? Mr. Rothschild. 5 Shea, I'm sorry. 6 PROSPECTIVE JUROR SHEA: I got a 7 brother that's in jail. He just got 8 convicted about three weeks ago. 9 MS. WARDELL: Here in Pinellas County? 10 PROSPECTIVE JUROR SHEA: Up in 11 Massachusettes. 12 MS. WARDELL: Okay. Did you attend 13 that trial? 14 PROSPECTIVE JUROR SHEA: No. 15 MS. WARDELL: Was it a trial or was 16 it -- do you know? 17 PROSPECTIVE JUROR SHEA: You know, I 18 don't even keep contact with him. I know 19 from my other brother that he is in jail. 20 MS. WARDELL: Is there anything about 21 that that you think he was treated unfairly 22 or with disrespect? 23 PROSPECTIVE JUROR SHEA: You know, it's 24 not the first time, so, no, I don't. 25 MS. WARDELL: Is there anything about KANABAY COURT REPORTERS 90 1 that experience that you might hold against 2 the State? 3 PROSPECTIVE JUROR SHEA: No. 4 MS. WARDELL: What about the Defense? 5 PROSPECTIVE JUROR SHEA: No. 6 MS. WARDELL: Who else, either you or 7 close family member? Okay. 8 Mr. Wright? 9 PROSPECTIVE JUROR WRIGHT: My brother. 10 MS. WARDELL: Was that a situation that 11 was involved in Pinellas County? 12 PROSPECTIVE JUROR WRIGHT: Yes. 13 MS. WARDELL: Okay. He was the 14 accused? 15 PROSPECTIVE JUROR WRIGHT: Yes. He's 16 in the system. He's away now. 17 MS. WARDELL: I'm sorry, what? 18 PROSPECTIVE JUROR WRIGHT: He's -- he's 19 in -- he's away. 20 MS. WARDELL: In the prison system? 21 PROSPECTIVE JUROR WRIGHT: Doing time, 22 yes. 23 MS. WARDELL: Okay. Did this office, 24 my office, convict him? 25 PROSPECTIVE JUROR WRIGHT: No. I don't KANABAY COURT REPORTERS 91 1 know. I don't follow up on him. 2 MS. WARDELL: How recent was that case? 3 PROSPECTIVE JUROR WRIGHT: A year and a 4 half ago. 5 MS. WARDELL: Was it -- 6 PROSPECTIVE JUROR WRIGHT: It was a 7 long -- he is in and out. 8 MS. WARDELL: Did you come to any of 9 his court hearings or participate in any 10 way? Did you talk to -- without telling me 11 what he said, did he talk about the facts of 12 the case? 13 PROSPECTIVE JUROR WRIGHT: No. 14 MS. WARDELL: Is there anything that 15 makes you think he might have been treated 16 unfairly in that case? 17 PROSPECTIVE JUROR WRIGHT: No. 18 MS. WARDELL: Is there anything about 19 that experience that would make you harbor 20 ill will towards the State because, quite 21 frankly, we put him there? 22 PROSPECTIVE JUROR WRIGHT: No. 23 MS. WARDELL: Okay. All right. Who 24 else raised their hand? 25 Miss Tsikos? KANABAY COURT REPORTERS 92 1 PROSPECTIVE JUROR TSIKOS: I'd like to 2 approach. 3 THE COURT: All right. 4 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 5 PROSPECTIVE JUROR TSIKOS: My son is -- 6 has a DUI against him and he will be -- I 7 don't know when because he thinks it's a 8 secret, but my daughter-in-law told me about 9 it. I have no hard feelings against anyone, 10 but he also had previous problems when he 11 was a teenager. I am unbiased. 12 THE COURT: You don't think that's 13 going to affect your decision? 14 PROSPECTIVE JUROR TSIKOS: I know it's 15 not going to affect my decision, but I feel 16 I have to tell you, right. 17 THE COURT: We thank you. Do you have 18 any questions? 19 MS. WARDELL: Has he talked to you 20 about the circumstances surrounding his 21 arrest? 22 PROSPECTIVE JUROR TSIKOS: He has not 23 said a word. And my daughter-in-law told 24 me, and I don't know too much about it. 25 It's supposed to be sometime next month that KANABAY COURT REPORTERS 93 1 they will -- 2 MS. WARDELL: Any indication he was 3 treated unfairly by the police during that 4 incident? 5 PROSPECTIVE JUROR TSIKOS: No. 6 MS. WARDELL: What about the prior 7 things that he was involved in? Any 8 indication law enforcement was not fair to 9 him? 10 PROSPECTIVE JUROR TSIKOS: No, because 11 I was there and I saw it. No, it was always 12 fair. 13 MS. WARDELL: And he got a fair shake? 14 PROSPECTIVE JUROR TSIKOS: Yes. 15 MS. WARDELL: And did he come through 16 the system on this? 17 PROSPECTIVE JUROR TSIKOS: Did he what? 18 MS. WARDELL: Come through the system 19 in those other cases? 20 PROSPECTIVE JUROR TSIKOS: In Pinellas 21 County. 22 MS. WARDELL: Yes, ma'am. Did he come 23 to the judge? 24 PROSPECTIVE JUROR TSIKOS: Twenty years 25 ago, something like that, yeah. KANABAY COURT REPORTERS 94 1 MS. WARDELL: Okay. 2 PROSPECTIVE JUROR TSIKOS: No. He did 3 get a fair shake. I have no problem with 4 the law. 5 MR. DEVLAMING: Just one. Did that 6 involve any drug abuse issues in the past? 7 PROSPECTIVE JUROR TSIKOS: In the very, 8 very past when he was young. 9 MR. DEVLAMING: Okay. Thank you, 10 ma'am. 11 PROSPECTIVE JUROR TSIKOS: When he was 12 a teenager at the time. 13 MR. DEVLAMING: Okay. Juvenile. 14 MS. WARDELL: Do you know whether he 15 retained an attorney? 16 PROSPECTIVE JUROR TSIKOS: For this new 17 one, the DUI? 18 MS. WARDELL: Yes. 19 PROSPECTIVE JUROR TSIKOS: Yes, my 20 daughter in law said he did. 21 MS. WARDELL: Do you know who it is? 22 PROSPECTIVE JUROR TSIKOS: I have no 23 clue. 24 MR. DEVLAMING: I can tell you it's not 25 me. KANABAY COURT REPORTERS 95 1 THE COURT: Thank you. 2 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 3 MS. WARDELL: Okay. Is there anyone 4 else who either you or a close family member 5 has been involved somehow with the criminal 6 justice system? Okay. 7 PROSPECTIVE JUROR ELLIS: Involved 8 recently? 9 THE COURT: Yeah, and really at any 10 point, and we'll talk about how recently. 11 Okay? 12 Miss Scurlock, I actually had written down 13 that you checked off on your form you had been 14 accused. 15 PROSPECTIVE JUROR SCURLOCK: Yes. I 16 was accused -- someone had stoled (sic) my 17 driver's license in '96 and used it to cash 18 two stolen checks. I was arrested in 19 Pinellas County, but the warrant was served 20 out of Hillsborough County, and so I had to 21 go to trial over there, and that's when they 22 dropped the charges when they realized it 23 wasn't me. 24 MS. WARDELL: How long did you stay in 25 jail? KANABAY COURT REPORTERS 96 1 PROSPECTIVE JUROR SCURLOCK: I was only 2 in jail for, like, three hours here. 3 MS. WARDELL: And ultimately somebody 4 was able to assist you and straighten it all 5 out? 6 PROSPECTIVE JUROR SCURLOCK: Oh, yeah. 7 I had to hire an attorney and to prove that 8 it wasn't me. 9 MS. WARDELL: All right. Is there 10 anything about the way maybe the detention 11 deputies treated you or the or cops -- were 12 you stopped for speeding or something and 13 they saw -- 14 PROSPECTIVE JUROR SCURLOCK: No, no. 15 Actually what happened was they came to my 16 job, and luckily I wasn't there that day. I 17 would have had a fit, but -- and they left 18 the card stating that they were wanting to 19 arrest me. So I came up here to find out 20 what it was for, and they told me and then 21 they arrested me at that time. 22 MS. WARDELL: Is there anything about 23 that experience that -- 24 PROSPECTIVE JUROR SCURLOCK: No. I 25 mean, I understood what happened, you know, KANABAY COURT REPORTERS 97 1 afterwards. Of course during the process I 2 freaked out, but afterwards, you know, I was 3 fine with it. 4 MS. WARDELL: So you can still be fair 5 and impartial? 6 PROSPECTIVE JUROR SCURLOCK: Oh, yes. 7 MS. WARDELL: Okay. All right. Were 8 you going to tell me something else? 9 PROSPECTIVE JUROR SCURLOCK: No, that 10 was it. 11 MS. WARDELL: Okay. All right. I 12 think Mr. Lovett, did you raise your hand? 13 PROSEPCTIVE JUROR LOVETT: Yeah, I have 14 a brother that's in the system. 15 MS. WARDELL: Okay. 16 PROSEPCTIVE JUROR LOVETT: But -- 17 MS. WARDELL: The prison system? 18 PROSEPCTIVE JUROR LOVETT: Yes, yes. 19 And it was just, you know, a situation when 20 I was serving in the military that my name 21 was used quite often. 22 MS. WARDELL: Oh, he was trying to be 23 you? 24 PROSEPCTIVE JUROR LOVETT: Exactly. 25 MS. WARDELL: Oh, how aggravating. KANABAY COURT REPORTERS 98 1 Well, did you ever get arrested because of 2 that? 3 PROSEPCTIVE JUROR LOVETT: Yes. 4 MS. WARDELL: You did? 5 PROSEPCTIVE JUROR LOVETT: Yeah. 6 MS. WARDELL: Did you get it 7 straightened out -- 8 PROSEPCTIVE JUROR LOVETT: Oh, yes. 9 MS. WARDELL: -- that you weren't him? 10 Did anybody treat you unfairly or wrongly 11 while arresting you and taking you through 12 that process? 13 PROSEPCTIVE JUROR LOVETT: No. I just 14 went along with it because I knew. 15 MS. WARDELL: You knew that it was 16 probably your brother saying he was you? 17 PROSEPCTIVE JUROR LOVETT: Yes. 18 MS. WARDELL: Do you think State acted 19 responsibly in clearing things up and 20 recognizing it? 21 PROSEPCTIVE JUROR LOVETT: Oh, yes. 22 MS. WARDELL: So you don't have any 23 issues with the State? 24 PROSEPCTIVE JUROR LOVETT: No. 25 MS. WARDELL: Was it Pinellas County KANABAY COURT REPORTERS 99 1 that put your brother in prison? 2 PROSEPCTIVE JUROR LOVETT: Pinellas 3 County, yes. 4 MS. WARDELL: How long ago was that? 5 PROSEPCTIVE JUROR LOVETT: I want to 6 say '92. 7 MS. WARDELL: And he is still there? 8 PROSEPCTIVE JUROR LOVETT: Yes. 9 MS. WARDELL: I didn't do it, did I? 10 PROSEPCTIVE JUROR LOVETT: I don't 11 know. I wasn't here. 12 MS. WARDELL: Okay. Same question to 13 you. I didn't do that other one, did I? 14 PROSPECTIVE JUROR WRIGHT: I wasn't 15 there either. 16 THE COURT: All right. I think I saw 17 some other hands. 18 Miss Ellis, you wanted to tell me 19 something. 20 PROSPECTIVE JUROR ELLIS: It's been a 21 long time. It was in a different state, so 22 I don't know if that -- 23 MS. WARDELL: It was you? 24 PROSPECTIVE JUROR ELLIS: No, it wasn't 25 me. KANABAY COURT REPORTERS 100 1 MS. WARDELL: Was it a family member? 2 PROSPECTIVE JUROR ELLIS: Uh-huh. 3 Father. I would prefer not to discuss it 4 openly. 5 THE COURT: Okay. We'll come up to the 6 bench. 7 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 8 PROSPECTIVE JUROR ELLIS: It's been 9 many years. My father was in prison for 10 thirteen years. 11 THE COURT: Okay. 12 PROSPECTIVE JUROR ELLIS: For cocaine. 13 THE COURT: Any questions? 14 MS. WARDELL: Drug related? 15 MR. DEVLAMING: Sorry, I didn't hear 16 that. 17 PROSPECTIVE JUROR ELLIS: It was drug 18 related. 19 MS. WARDELL: How old were you when he 20 would have been prosecuted? 21 PROSPECTIVE JUROR ELLIS: Two. 22 MS. WARDELL: Okay. 23 PROSPECTIVE JUROR ELLIS: Until I was a 24 teenager. 25 MS. WARDELL: So did you go visit him KANABAY COURT REPORTERS 101 1 and things? 2 PROSPECTIVE JUROR ELLIS: Uh-huh. 3 MS. WARDELL: Did he talk about the 4 facts of his case? 5 PROSPECTIVE JUROR ELLIS: Not really. 6 MS. WARDELL: Did he ever give you the 7 impression that he was wrongly accused? 8 PROSPECTIVE JUROR ELLIS: He deserved 9 it. 10 MS. WARDELL: Okay. 11 PROSPECTIVE JUROR ELLIS: He did it. 12 MS. WARDELL: Anything about that that 13 you would hold it against the State? 14 PROSPECTIVE JUROR ELLIS: No. 15 THE COURT: Mr. DeVlaming? 16 MR. DEVLAMING: Miss Ellis, has it left 17 you with any feelings, though, about -- 18 you've just heard that this is a marijuana 19 case. Did you feel that based upon that 20 experience in your life that you would come 21 in and be more one-sided than the other or 22 not? 23 PROSPECTIVE JUROR ELLIS: No. 24 MR. DEVLAMING: You can still be fair? 25 PROSPECTIVE JUROR ELLIS: I'm very KANABAY COURT REPORTERS 102 1 impartial. 2 MR. DEVLAMING: Okay. Thank you, 3 ma'am. 4 PROSPECTIVE JUROR ELLIS: Thank you. 5 THE COURT: Thank you. 6 (WHEREUPON THE FOLLOWING BENCH CONFERENCE CONCLUDED) 7 MS. WARDELL: Okay. Mr. Shea? 8 PROSPECTIVE JUROR SHEA: I was arrested 9 here in Pinellas County within the last 10 year. 11 MS. WARDELL: Okay. All right. And is 12 our office currently prosecuting you? 13 PROSPECTIVE JUROR SHEA: No. 14 MS. WARDELL: The charges were dropped? 15 PROSPECTIVE JUROR SHEA: PTI. 16 MS. WARDELL: Okay. Well, does that 17 mean you think you were treated fairly? 18 PROSPECTIVE JUROR SHEA: I think I got 19 as good as I could hope for. 20 MS. WARDELL: Is that misdemeanor PTI? 21 PROSPECTIVE JUROR SHEA: Yes. 22 MS. WARDELL: Do you remember the 23 name -- I'm sure that was me because that's 24 one of my job responsibilities. Did you 25 recognize my name as being on your document KANABAY COURT REPORTERS 103 1 that put you in that program? 2 PROSPECTIVE JUROR SHEA: No. 3 MS. WARDELL: Do you think you 4 shouldn't even have gotten to the point 5 where you had to apply for PTI? 6 PROSPECTIVE JUROR SHEA: I think that 7 it was the best I could hope for, yes. 8 MS. WARDELL: Well, I can tell you with 9 about a hundred percent certainty that I'm 10 the one that signed that paperwork. Do you 11 got a problem with that? 12 PROSPECTIVE JUROR SHEA: I didn't know 13 you were on the paperwork, but, no. 14 MS. WARDELL: Do you think that -- 15 well, basically what I'm saying is it would 16 have been my call whether to put you on the 17 program. I would have reviewed the police 18 report and decided whether you qualified. 19 Do you think that because I put you on that 20 program you might like me a little bit 21 better? You're not worried that I might 22 take you off if you don't vote my way? 23 PROSPECTIVE JUROR SHEA: Like I said, I 24 didn't know you were involved. It was the 25 judge, I thought, that made the decision. KANABAY COURT REPORTERS 104 1 MS. WARDELL: Okay. No. That's the 2 State Attorney program and the State 3 Attorney makes all the calls on that. Is 4 there anything about the experience? Do you 5 think you were treated unfairly? Were you 6 arrested? 7 PROSPECTIVE JUROR SHEA: Yes, I was 8 arrested, but, I mean, you know, they 9 treated me with respect I guess. 10 MS. WARDELL: That's what I'm getting 11 at. Do you think they just scooped you up, 12 shoved you in the slammer and moved on to 13 the next case, or did they treat you with 14 respect, you know? 15 PROSPECTIVE JUROR SHEA: I mean, you 16 know, they had a job to do and they did it. 17 MS. WARDELL: Okay. So you're 18 satisfied with the disposition? 19 PROSPECTIVE JUROR SHEA: Like I said, 20 obviously PTI was what I wanted, I got it, 21 and that was the best I could hope for, yes. 22 MS. WARDELL: Okay. Now that you know 23 that I'm involved in that decision, will you 24 be pro-State? 25 PROSPECTIVE JUROR SHEA: What's that? KANABAY COURT REPORTERS 105 1 MS. WARDELL: Do you think you might be 2 a little more pro-State now that you know I 3 would have been involved in that decision? 4 PROSPECTIVE JUROR SHEA: No. 5 MS. WARDELL: What about little more 6 pro-Defense because you might be wondering, 7 gee, why didn't he do the same thing? 8 PROSPECTIVE JUROR SHEA: Like I said, 9 if I thought I had -- 10 MS. WARDELL: Okay. You can be fair 11 and impartial? 12 PROSPECTIVE JUROR SHEA: (Indicates.) 13 MS. WARDELL: I appreciate that. Is 14 there anybody else that I've missed that 15 either themself has been accused, arrested, 16 or a family member? Okay. 17 Miss Lovely -- Lepley? 18 PROSPECTIVE JUROR LEPLEY: Yes, ma'am. 19 MS. WARDELL: Miss Lepley wants to 20 approach, Judge. 21 THE COURT: Okay. Please come forward. 22 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 23 THE COURT: Yes, ma'am. What did you 24 want to tell us? 25 PROSPECTIVE JUROR LEPLEY: My children KANABAY COURT REPORTERS 106 1 when they were young -- now they are all in 2 their 40s -- were involved with -- 3 THE COURT: Marijuana? 4 PROSPECTIVE JUROR LEPLEY: Uh-huh. 5 And, in fact, they graduated the Seed at 6 that time, and all of them are doing 7 beautiful now and no problems with court or 8 things like that. I thought I should, you 9 know, mention that that was a family 10 problem. 11 THE COURT: Okay. 12 MS. WARDELL: They were prosecuted, or 13 you handled it? 14 PROSPECTIVE JUROR LEPLEY: No. They 15 were -- I handled it. They did -- we did 16 have a child that graduated the Seed. 17 MS. WARDELL: Sorry, what did they 18 graduate? 19 PROSPECTIVE JUROR LEPLEY: It was at 20 the Seed. 21 MS. WARDELL: The After Seed program. 22 Okay. 23 PROSPECTIVE JUROR LEPLEY: Yes, in 24 Lauderdale. 25 MS. WARDELL: It was a court ordered KANABAY COURT REPORTERS 107 1 program? 2 PROSPECTIVE JUROR LEPLEY: No. When 3 they were teenagers that's when they went. 4 When they were teenagers, anything that was 5 done usually came through the school and 6 then we worked it out with community service 7 and that type of thing. Nothing to do with 8 any charges. 9 MS. WARDELL: Okay. Okay. 10 THE COURT: Thank you, ma'am 11 Mr. DeVlaming? 12 MR. DEVLAMING: No, I don't have any 13 questions, sir. 14 THE COURT: Thank you. 15 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 16 THE COURT: Please proceed. 17 MS. WARDELL: Thank you, Judge. 18 Miss Lepley, I note that you're retired 19 from the St. Pete Times. 20 PROSPECTIVE JUROR LEPLEY: Uh-huh. 21 MS. WARDELL: Would you just talk to me 22 a minute about what your responsibilities 23 would have been? 24 PROSPECTIVE JUROR LEPLEY: I was 25 assistant photo editor and special manager. KANABAY COURT REPORTERS 108 1 MS. WARDELL: So did you actually 2 participate in the writing of articles? 3 PROSPECTIVE JUROR LEPLEY: I did at one 4 time early on in my career, then I moved up. 5 I was primarily responsible for any of the 6 photos that we got from other newspapers or 7 around the world and hiring freelancers to 8 provide photos that our photographers were 9 unable to go and obtain, news that was 10 actually happening at that time. 11 MS. WARDELL: Did your job duties 12 include criminal cases that were covered in 13 the paper? 14 PROSPECTIVE JUROR LEPLEY: Photos would 15 be coming in, but other than that, I didn't 16 have anything to do with the writing at that 17 time. 18 MS. WARDELL: Is there anything about 19 that experience and the articles, the 20 photographs you would have participated in, 21 that might cause you a problem to sit on 22 this jury today? 23 PROSPECTIVE JUROR LEPLEY: I don't 24 think so. 25 MS. WARDELL: Okay. All right. KANABAY COURT REPORTERS 109 1 PROSPECTIVE JUROR LEPLEY: Because the 2 things that you do, you do in context with 3 what your specific part of the job would be. 4 You don't go tell someone else what the news 5 is, what they're writing. You obtain the 6 photos to go with the story. 7 MS. WARDELL: Okay. Mr. Wright, you 8 mentioned that you knew Bailiff Oliver and 9 the Clerk that was here. Anything about 10 that relationship with either of the two 11 that would cause you not to be fair and 12 impartial today? 13 PROSPECTIVE JUROR WRIGHT: No. 14 MS. WARDELL: You think -- are you -- 15 do you ever talk to Mr. Bailiff Oliver about 16 some of the case he has watched or seen or 17 had conversations about that? 18 PROSPECTIVE JUROR WRIGHT: No. I just 19 know him through high school. 20 MS. WARDELL: Okay. Same question of 21 the Clerk. Do you have conversations about 22 what she sees every day in court? 23 PROSPECTIVE JUROR WRIGHT: No. 24 MS. WARDELL: All right. All right. 25 This is the last question and I'm done. Is KANABAY COURT REPORTERS 110 1 there anything that's on anybody's mind that 2 they need to bring to our attention that 3 might cause you to be distracted from the 4 facts and the evidence in this case? 5 Anything? I appreciate your time. 6 THE COURT: Thank you. Mr. DeVlaming, 7 sir, do you wish to inquire at this time? 8 MR. DEVLAMING: If you want to go 9 straight on, yes, sir. 10 THE COURT: I do want to go straight on 11 unless you all are about to tell me that 12 it's time for another break. I believe 13 Mr. DeVlaming, not being able to gauge how 14 long he is going take, I assume he might 15 take an hour. Do we need to take a short 16 break before we get started? Anybody who 17 needs a break please raise your hand? All 18 right. 19 Everybody can hold for an hour, 20 Mr. DeVlaming. Let's proceed. 21 MR. DEVLAMING: I'm going to tell you 22 I'm not going to take an hour. 23 PROSPECTIVE JUROR BACKUS: Thank you. 24 MR. DEVLAMING: Your welcome. I do 25 have some questions, members of the jury. KANABAY COURT REPORTERS 111 1 You'll find out that whoever's chosen on 2 this panel that I'll always go second, and 3 that's the rules of the road, the rules of 4 court, and we'll abide by them. It's the 5 prosecutor's burden in this case to prove 6 the case. We're here to defend against it. 7 Do you all understand that? 8 THE PROSPECTIVE JURORS: Yes. 9 MR. DEVLAMING: Does everybody in this 10 panel believe that a person, a citizen in 11 this country, has the right to take their 12 case to court if they believe they're 13 innocent? 14 THE PROSPECTIVE JURORS: Yes. 15 THE BAILIFF: Okay. Now, you know, 16 it's funny some of you chose to go to the 17 bench, which is fine, and, frankly, I would 18 have too in many of your cases. 19 Mr. Shea we kind of discussed a little bit 20 about you getting on the PTI program. For the 21 benefit of the rest of you, that stands for 22 Pretrial Intervention. I don't mean to talk 23 about Mr. Shea, but just in case you were 24 scratching your head about the dialog there, it 25 means his case was taken out of the system, for KANABAY COURT REPORTERS 112 1 whatever reasons given, and he didn't have to go 2 to court. 3 That was your right the apply for that 4 program, correct? 5 PROSPECTIVE JUROR SHEA: Yes, sir. 6 MR. DEVLAMING: It would also have been 7 your right, if you wanted to, to take this 8 matter to court? 9 PROSPECTIVE JUROR SHEA: Yes, sir. 10 MR. DEVLAMING: All right. Do you 11 understand that this is a misdemeanor case? 12 Drugs can either be felonies or they can be 13 misdemeanors. Do you understand you're in 14 misdemeanor court? Does everybody 15 understand where we are? 16 THE PROSPECTIVE JURORS: Yes. 17 MR. DEVLAMING: Okay. I'm going to ask 18 a question and I'm going to tell you in a 19 minute why I'm asking it, and you're going 20 to see me just kind of making a note or two. 21 I want you to raise your hand if you live 22 north of you Ulmerton Road. If you live north 23 of Ulmerton road. Just -- first row just keep 24 them up for one second. Okay. Second row. 25 Miss Carter. First row can put them down. KANABAY COURT REPORTERS 113 1 Okay. Second row put them down. Third row, 2 Miss Dake. Anybody else in the third row? 3 Okay. Okay. Miss Ellis. No? Okay. All 4 right. All right. Miss Lovely, Mr. Wickett and 5 Mr. Mensch. Okay. 6 I want you to raise your hand now if you 7 have never heard of the Church of Scientology. 8 If you have never heard of the Church of 9 Scientology, raise your hand. Okay. It just 10 looks like there is only two hands. 11 And, Mr. Lovett, you've never heard that 12 word before? 13 PROSEPCTIVE JUROR LOVETT: Never. 14 MR. DEVLAMING: Okay. And Mr. Ondich? 15 PROSPECTIVE JUROR ONDICH: No. 16 MR. DEVLAMING: Okay. I'm going to 17 assume the rest of you have. Judge Andrews 18 said something in the beginning of this 19 case, and that is there may be an issue 20 about this. 21 Mr. Prince is not a member of the Church of 22 Scientology; however, there may be some issues 23 surrounding some of the practices of that 24 particular organization. 25 Now, the question I have for you now is, of KANABAY COURT REPORTERS 114 1 the people other than Mr. Lovett and Mr. Ondich, 2 has everybody else heard at least something 3 about the practices of that particular religion? 4 Raise your hand if at least you have heard about 5 some of the practices of that particular 6 organization. Okay? I'm looking around real 7 fast. 8 And Mr. Wilson, I don't see your hand up. 9 You don't -- you haven't hear of -- you've heard 10 of the -- 11 PROSPECTIVE JUROR WILSON: I've heard 12 of the name. I don't know what -- 13 THE COURT: Anything about it. 14 PROSPECTIVE JUROR WILSON: -- anything 15 about them or what they do or anything. 16 MR. DEVLAMING: Anybody else that 17 doesn't know anything about it? 18 PROSPECTIVE JUROR SCURLOCK: I know the 19 name, but I don't know what they practice. 20 MR. DEVLAMING: Okay. And Bartocci? 21 Okay. There was two hands. 22 And Mr. Wright, you don't know anything 23 about their practices at all? 24 PROSPECTIVE JUROR WRIGHT: No. 25 MR. DEVLAMING: Okay. Mr. Benjamin, KANABAY COURT REPORTERS 115 1 you don't either? 2 PROSPECTIVE JUROR BENJAMIN: No. 3 MR. DEVLAMING: Okay. All right. 4 Miss Tsikos, don't know anything about the 5 practices of that particular -- 6 PROSPECTIVE JUROR TSIKOS: No. 7 MR. DEVLAMING: Do you live in north 8 county? 9 PROSPECTIVE JUROR TSIKOS: I live in 10 Dunedin, right. 11 MR. DEVLAMING: Okay. In Dunedin. 12 Okay. All right. Is anybody here on the 13 panel a member be the Church of Scientology? 14 Does anybody on this panel know someone who 15 is a member of the Church of Scientology? 16 The record will reflect on both of those 17 last questions I'm seeing no hands, so I'm 18 trying to abide by my promise that I'm not 19 going to keep you here an hour. So I'm not 20 hearing anybody that is a member of the 21 church or that knows a member of the church. 22 Has anybody ever been to a tour of the 23 Church of Scientology? I see no hands. Has 24 anybody read any books authored by a man by the 25 name of L. Ron Hubbard? KANABAY COURT REPORTERS 116 1 Yes, Mr. Backus, have you? 2 PROSPECTIVE JUROR BACKUS: Yes. 3 MR. DEVLAMING: Okay. Was it -- I 4 don't mean to get personal with you, but was 5 it out of curiosity you did it, or -- 6 PROSPECTIVE JUROR BACKUS: I read a lot 7 of nonfiction, and I assumed when I read the 8 book it was nonfiction. After I read the 9 book I thought it was fiction. 10 MR. DEVLAMING: Okay. Was it a sci-fi 11 book? 12 PROSPECTIVE JUROR BACKUS: Somewhat to 13 me. 14 MR. DEVLAMING: All right. But, I 15 mean, it wasn't a book called "Dianetics?" 16 PROSPECTIVE JUROR BACKUS: Yes, it was. 17 MR. DEVLAMING: It was? 18 PROSPECTIVE JUROR BACKUS: Yes. 19 MR. DEVLAMING: All right. All right. 20 I think I -- no one's ever toured it. No 21 one's a member of the church. Has anyone 22 ever met a Scientologist and sat around -- 23 okay. 24 You are Miss Ellis. Okay. And did that 25 person become a friend of yours? KANABAY COURT REPORTERS 117 1 PROSPECTIVE JUROR ELLIS: Yeah, a 2 little. 3 MR. DEVLAMING: All right. Did you 4 come. 5 A Away with any feelings about the church or 6 how it operates? 7 PROSPECTIVE JUROR ELLIS: Not really. 8 I mean, I just looked at more -- I didn't 9 really see it as a religion, more as just a 10 philosophy. That's all. 11 MR. DEVLAMING: Okay. All right. But 12 did you come away having any strong feelings 13 one way or the other? 14 PROSPECTIVE JUROR ELLIS: No. 15 MR. DEVLAMING: Were you tried to 16 come -- to take a tour or tried to come into 17 the church or anything like that? 18 PROSPECTIVE JUROR ELLIS: I was asked, 19 but I wasn't interested. 20 MR. DEVLAMING: Okay. All right. Last 21 question. I'm going to assume the answer, 22 but I don't want to assume anything up here. 23 Has anybody ever taken any classes offered 24 by the Church of Scientology? I see no 25 hands. KANABAY COURT REPORTERS 118 1 Does anybody in this courtroom on the 2 prospective panel believe that in real life that 3 somebody cannot be set up? We talked a little 4 about the TV shows where we might see this, but 5 I'm talking real life now. Does anybody on this 6 panel think that in real life a citizen cannot 7 be set up for a crime? All right. 8 Now, I want you to raise your hand if you 9 think that a citizen could be, in real life, set 10 up. All right. Everybody's paying attention 11 then. Everybody that didn't have their hand up 12 before put their hand up now. Okay. 13 Does anybody have any strong feelings about 14 being spied upon or followed in their own 15 private life? Mr. Benjamin? 16 PROSPECTIVE JUROR BENJAMIN: No, sir. 17 MR. DEVLAMING: Okay. Do you feel that 18 as a private citizen that you would be 19 offended if you were found out that you were 20 either spied upon or followed in your daily 21 life without -- 22 PROSPECTIVE JUROR BENJAMIN: I may be, 23 sir. It would depend on the situation I 24 guess. 25 MR. DEVLAMING: All right. KANABAY COURT REPORTERS 119 1 PROSPECTIVE JUROR BENJAMIN: But, no, I 2 wouldn't. 3 MR. DEVLAMING: Does anybody have any 4 strong feelings about that? All right. 5 Miss Janusik, you're nodding your head. 6 PROSPECTIVE JUROR JANUSIK: I wouldn't 7 want to be spied on or followed. It would 8 be very uncomfortable. 9 MR. DEVLAMING: Say you didn't even 10 know about it. In other words, they're not 11 following you beeping the horn. Would your 12 answer still be the same that you wouldn't 13 want people following you your every move? 14 PROSPECTIVE JUROR JANUSIK: Yes, my 15 answer would be the same. 16 MR. DEVLAMING: Okay. I'm sorry. 17 UNIDENTIFIED PROSPECTIVE JUROR: Yes, I 18 would. 19 MR. DEVLAMING: Okay. How about you, 20 Miss Scurlock? How do you feel about that? 21 PROSPECTIVE JUROR SCURLOCK: I feel -- 22 yeah, I don't want anyone following me. 23 MR. DEVLAMING: Okay. How about you, 24 Mr. Marx? 25 PROSPECTIVE JUROR MARX: I think I KANABAY COURT REPORTERS 120 1 would be enjoying it enormously. Sorry. 2 MR. DEVLAMING: You can't use -- 3 that's -- you know what the records says 4 now? You'd enjoy it enormously. Okay? All 5 right. 6 Miss Matthews, how about you? 7 PROSPECTIVE JUROR MATTHEWS: No, I 8 would not like it at all. 9 MR. DEVLAMING: Would you be offended 10 about it? 11 PROSPECTIVE JUROR MATTHEWS: Yes, I 12 think so. 13 MR. DEVLAMING: All right. How about 14 you, Miss Ellis? 15 PROSPECTIVE JUROR ELLIS: I wouldn't 16 like it, no. 17 MR. DEVLAMING: Okay. Miss Tsikos? 18 PROSPECTIVE JUROR TSIKOS: I would not 19 like it. 20 MR. DEVLAMING: Might you report it if 21 you ever found out that this was happening? 22 PROSPECTIVE JUROR TSIKOS: Certainly. 23 MR. DEVLAMING: Would you consider that 24 it bordered on stalking if it continued? 25 PROSPECTIVE JUROR TSIKOS: Certainly. KANABAY COURT REPORTERS 121 1 MR. DEVLAMING: All right. How about 2 you, Mr. Casella? 3 PROSPECTIVE JUROR CASELLA: I used to 4 do it. I was a counter-intelligence special 5 agent, and I did -- I followed people. 6 MR. DEVLAMING: Okay. All right. Do 7 it -- do you still do it? You're retired? 8 PROSPECTIVE JUROR CASELLA: I have 9 PTSD. I don't do much of anything anymore. 10 MR. DEVLAMING: Okay. Well, I got to 11 ask you then, Mr. Casella, this question. 12 There may be some people that testify in 13 this case that do for a living what you did 14 for a living. Will you have any 15 preconceived feelings about them as 16 witnesses? 17 PROSPECTIVE JUROR CASELLA: No, not at 18 all. 19 MR. DEVLAMING: All right. Would you 20 be more prone to accept what they do or be 21 critical of what they do or neither? 22 PROSPECTIVE JUROR CASELLA: I would 23 accept what they do as valid employment. 24 MR. DEVLAMING: Okay. Do you -- do you 25 understand -- well, let me take the shoe off KANABAY COURT REPORTERS 122 1 and put it on the other foot. Do you agree 2 with what this lady said to your right 3 there, that it might be offensive to 4 somebody that would be followed? 5 PROSPECTIVE JUROR CASELLA: It would be 6 offensive to me if someone were to follow 7 me. 8 MR. DEVLAMING: How about you, Mr. 9 Ezell? 10 PROSPECTIVE JUROR EZELL: I've always 11 been told that at any time the government 12 can look at your files or anything. And to 13 me that wouldn't be too much of a bother 14 until it got in-depth to the point to where 15 they were watching your house, watching your 16 phonecalls, and just plain out making a nice 17 little book of what you do day in and day 18 out. 19 MR. DEVLAMING: How about if they went 20 one step further and infiltrated your life 21 actually? Would you be offended? 22 PROSPECTIVE JUROR EZELL: Became a part 23 of your job and stuff, or decided to visit 24 your house while you weren't there? 25 MR. DEVLAMING: No, no. By infiltrated KANABAY COURT REPORTERS 123 1 I mean worked their way into your life as, 2 like, one of your friends but they were not. 3 Would you be offended by that? 4 PROSPECTIVE JUROR EZELL: Yeah. 5 MR. DEVLAMING: Okay. Would anybody 6 not be offended by that? Raise your hand if 7 you would be, if you would be offended when 8 somebody infiltrated your life. All right. 9 Go ahead, yes. 10 Yes, Miss Carter? 11 PROSPECTIVE JUROR CARTER: I agree but 12 I don't agree. I think that I feel like I 13 would be comfortable enough with someone 14 coming into my life. I wouldn't want 15 someone spying on me, but I don't think I'm 16 doing anything that I would feel 17 uncomfortable with if some did come to spy 18 on me and became my friend. I don't think I 19 feel like I'm -- 20 MR. DEVLAMING: You said you would 21 not -- that would not bother you? 22 PROSPECTIVE JUROR CARTER: It would 23 bother me immensely if someone was following 24 me and stalking me, but if they became my 25 friend, it wouldn't -- it would upset me, KANABAY COURT REPORTERS 124 1 but I don't feel like I'm doing anything. 2 MR. DEVLAMING: How about for the sole 3 purpose of telling other people what 4 Miss Carter does every day of her life? 5 PROSPECTIVE JUROR CARTER: Now that 6 would be kind of irritating. But do you see 7 where I'm -- 8 MR. DEVLAMING: I understand. You're 9 starting to draw a line. And it might be 10 that if somebody's your friend, they're your 11 friend, if they came into my life and I 12 really thought they were. But you would 13 want to know what they were doing, wouldn't 14 you, why they did that if they really 15 weren't your friend? What they're up to. 16 PROSPECTIVE JUROR CARTER: Okay. 17 MR. DEVLAMING: I mean, would you? I'm 18 not putting words in your mouth. Would you 19 want to know that? 20 Mr. Backus, would you want to know if 21 somebody came into your life and was reporting 22 to somebody? 23 PROSPECTIVE JUROR BACKUS: (Indicates.) 24 MR. DEVLAMING: You know, I'd like to 25 ask this question because sometimes I get KANABAY COURT REPORTERS 125 1 some different answers about what 2 everybody's job is here today. And Miss 3 Wardell talked a little about her job and 4 that is to present evidence in this case and 5 she represents the State and asks that this 6 man be convicted, and my job is to defend 7 him. 8 Let me -- Miss Matthews, what is your job? 9 What do you perceive your job to be in this 10 case? 11 PROSPECTIVE JUROR MATTHEWS: To listen 12 to the evidence and make a true and honest 13 judgment on the guilt or innocence of the 14 person. 15 MR. DEVLAMING: Okay. I'm going to 16 repeat it because I'm not so sure everybody 17 in the back -- that's all right. And I 18 don't mean -- if I make a mistake, correct 19 me, but to listen to the evidence and make a 20 true and honest decision as to guilt or 21 innocence. 22 PROSPECTIVE JUROR MATTHEWS: Yes, sir. 23 MR. DEVLAMING: Okay. Is that -- raise 24 your hand if you think that sounds like 25 that's just about what your job's going to KANABAY COURT REPORTERS 126 1 be. All right. Put your hands down. And 2 let me tell you something, what you just 3 said or a variation of it is what everybody 4 says. 5 What if I told you that at the conclusion 6 of this case what the judge is going to tell you 7 your job is singularly to listen to the 8 witnesses that the prosecutor calls and 9 determine whether or not they have proven beyond 10 all reasonable doubt the guilt of this citizen? 11 Okay. In other words, he doesn't have to do 12 anything. It isn't a balancing, let's listen to 13 the State, let's listen to the Defense and make 14 the decision. It always stays on the 15 prosecutor's side to remove all reasonable 16 doubt. Can you accept that? 17 PROSPECTIVE JUROR MATTHEWS: Yes, sir. 18 MR. DEVLAMING: Okay. Miss Carter, how 19 about you? Do you understand what I'm 20 saying? It is not a balancing test like it 21 is in civil cases. 22 Mr. Wilson, have you ever sat on a case 23 before? Are you -- what is your name? No. 24 Yes. 25 PROSPECTIVE JUROR WRIGHT: Wright. KANABAY COURT REPORTERS 127 1 MR. DEVLAMING: Mr. Wright. I knew it 2 began with a "W." I didn't know what it 3 was. Have you ever sat on a case before? 4 PROSPECTIVE JUROR WRIGHT: No. 5 MR. DEVLAMING: Has anybody ever sat on 6 a civil case before as a juror? I know I 7 saw something. Were you called? 8 PROSPECTIVE JUROR MATTHEWS: Yes, I sat 9 on a case that settled out of court. 10 MR. DEVLAMING: Okay. Anybody ever sit 11 on a jury on a civil case? I don't see any 12 hands. Do you know there is a difference in 13 the burden of proof between a civil case and 14 a criminal case? Do you all understand 15 that? One has to do with the possible loss 16 of property, the other one the possible loss 17 of freedom? 18 Ms. Bartocci, you're nodding your head. Do 19 you understand that there's a difference? 20 PROSPECTIVE JUROR BARTOCCI: Certainly. 21 MR. DEVLAMING: In a criminal case the 22 burden is higher than it is in a civil case. 23 PROSPECTIVE JUROR BARTOCCI: Yes, I do. 24 MR. DEVLAMING: Do you think it should 25 be higher? KANABAY COURT REPORTERS 128 1 UNIDENTIFIED PROSPECTIVE JUROR: Yes. 2 MR. DEVLAMING: Yeah? Why? 3 UNIDENTIFIED PROSPECTIVE JUROR: Well, 4 she would be trying to prove that this 5 gentleman did something that was against the 6 law. If he's done something that's against 7 the law he's going to lose rights. 8 MR. DEVLAMING: Okay. So you think 9 because something more would be at stake 10 then the loss of property that it should be 11 harder for the government to be able to take 12 your liberty potentially? 13 UNIDENTIFIED PROSPECTIVE JUROR: Well, 14 sure, yes. 15 MR. DEVLAMING: All right. 16 UNIDENTIFIED PROSPECTIVE JUROR: I 17 would hope so. 18 MR. DEVLAMING: Okay. Does anyone have 19 any particular opinion about the burden of 20 proof and whether or not it is fair that the 21 government has to remove all reasonable 22 doubt, whereas in a civil case it's called a 23 preponderance of the evidence? Fifty-one 24 percent is all that is needed in a civil 25 case to win a civil case. KANABAY COURT REPORTERS 129 1 Let's see, is it Miss Dalla Rosa? Okay. 2 What is your feelings about that? Do you think 3 it's too hard? Do you think the government 4 should not have to prove beyond a reasonable 5 doubt the guilt of a citizen? You think it 6 should be a lesser burden? 7 PROSPECTIVE JUROR DALLA ROSA: No, 8 absolutely not. They need to prove it. 9 MR. DEVLAMING: Okay. In other words, 10 a lesser burden might be like in a civil 11 case. The plaintiff goes, the defense goes, 12 and you do one of these, you know, did he 13 run the stop sign, did he not run the stop 14 sign? Fifty-one percent. In a criminal 15 case it always stays on the government's 16 side. Do you think that's correct? 17 PROSPECTIVE JUROR DALLA ROSA: Yes. 18 MR. DEVLAMING: You think that's the 19 way it should be? 20 PROSPECTIVE JUROR DALLA ROSA: Yes. 21 MR. DEVLAMING: All right. I want you 22 to raise your hand if you think that's 23 exactly the way it should be in our country. 24 All right. I want you to raise your hand if 25 you believe beyond and to the exclusion of KANABAY COURT REPORTERS 130 1 every reasonable doubt is the burden that 2 should be present before a person could lose 3 their liberty. I'm not seeing some hands so 4 I'm going to call on you. Okay? 5 You, sir, yes. 6 PROSEPCTIVE JUROR LOVETT: To me I 7 think, you know, you ought to have a fair 8 trial. I mean, be fair. 9 MR. DEVLAMING: Okay. Well, you know 10 what? Basically you are right. That's what 11 we're all asking you to do. As 12 Judge Andrews said, you need to come in with 13 your common sense. But I want to make sure 14 before I sit down that you understand that 15 Mr. Prince doesn't have to prove everything 16 here. The State has to prove guilt. All 17 right? 18 PROSEPCTIVE JUROR LOVETT: Right. 19 MR. DEVLAMING: All right. Will you 20 require him -- let me tell you something, 21 we're going to call witnesses in this case. 22 Don't get me wrong. Okay? But if you're 23 going to require us to -- that we accept the 24 burden of proof, I need you to know that 25 you're requiring me to prove something. KANABAY COURT REPORTERS 131 1 PROSEPCTIVE JUROR LOVETT: No. I think 2 they ought to be able to present their 3 evidence. 4 MR. DEVLAMING: -- to prove him guilty 5 if they can. Okay. 6 Miss Scurlock, how about you? 7 PROSPECTIVE JUROR SCURLOCK: I agree. 8 The same thing. 9 MR. DEVLAMING: How about you, 10 Mr. Backus? 11 PROSPECTIVE JUROR BACKUS: Yes. 12 MR. DEVLAMING: Okay. I'm almost 13 finished. Let me ask you this question, and 14 it has to do about marijuana. You heard 15 this was a marijuana case. And let me do it 16 this way. It might be easier and a little 17 bit faster. I'm going to ask you your 18 feelings about that particular drug. And 19 this is the way I want to ask it, and I'm 20 just going to go right down the old line 21 here. 22 On a scale of one to ten, a zero is it 23 should be just about the lowest drug that can be 24 regulated, you know, maybe a little closer to 25 what Alaska does, give you a parking ticket for KANABAY COURT REPORTERS 132 1 it or what have you. A number ten is it's a bad 2 drug and it should be vigorously enforced, 3 vigorously. Okay? Do you understand? Zero is 4 it's probably one of the most minor drugs; ten, 5 I put it up to a very serious drug. Okay? 6 Mr. Benjamin? 7 PROSPECTIVE JUROR BENJAMIN: I wouldn't 8 call it a serious -- 9 MR. DEVLAMING: No, no, no. Got to do 10 one to ten. That's -- on a zero being it's 11 not that bad a drug or a ten being a real 12 bad drug, where do you fall? 13 PROSPECTIVE JUROR ONDICH: I'll give it 14 a ten. 15 MR. DEVLAMING: That it's a real bad 16 drug? 17 PROSPECTIVE JUROR ONDICH: Yes, sir. 18 MR. DEVLAMING: Okay. All right. Fair 19 enough. 20 PROSPECTIVE JUROR SCURLOCK: Five. 21 MR. DEVLAMING: Five? 22 PROSPECTIVE JUROR MARX: Five. 23 PROSEPCTIVE JUROR LOVETT: Four. 24 MR. DEVLAMING: Four? 25 PROSPECTIVE JUROR MATTHEWS: Ten. KANABAY COURT REPORTERS 133 1 MR. DEVLAMING: Ten? It's your own 2 person -- you know, you can't cheat off your 3 neighbor. This is -- I'm asking you, you 4 know, what you truly feel. 5 PROSPECTIVE JUROR ELLIS: I've done a 6 lot of reports on marijuana. Based on the 7 fact that there's been no reported deaths on 8 it and cigarettes kill millions of people 9 every year, I would rate it a one. 10 MR. DEVLAMING: Okay. All right. 11 Fair. 12 PROSPECTIVE JUROR TSIKOS: Ten. It's a 13 drug. 14 MR. DEVLAMING: Ten. It's a drug. 15 Okay. 16 PROSPECTIVE JUROR JANUSIK: Ten. 17 MR. DEVLAMING: Okay. 18 PROSPECTIVE JUROR CASELLA: That's a 19 personal opinion? 20 MR. DEVLAMING: Just personal. 21 PROSPECTIVE JUROR CASELLA: Two. 22 MR. DEVLAMING: Okay. 23 PROSPECTIVE JUROR EZELL: Based on what 24 you're saying for a zero being it being 25 non -- KANABAY COURT REPORTERS 134 1 MR. DEVLAMING: Yeah, it being the 2 lowest of the drugs, and a ten being a 3 serious, you know -- 4 PROSPECTIVE JUROR EZELL: Me 5 personally, I don't do anything, so I would 6 rate it high for myself, but as to 7 everything else I've heard, maybe a one. 8 MR. DEVLAMING: Okay. 9 PROSPECTIVE JUROR SWONGER: Four. 10 MR. DEVLAMING: Four? 11 PROSPECTIVE JUROR ONDICH: Four. 12 MR. DEVLAMING: Four? 13 PROSPECTIVE JUROR BARTOCCI: Five 14 maybe. 15 MR. DEVLAMING: Okay. 16 PROSPECTIVE JUROR CARTER: Seven. 17 MR. DEVLAMING: All right. 18 PROSPECTIVE JUROR BACKUS: Two. 19 MR. DEVLAMING: Okay. 20 PROSPECTIVE JUROR WILSON: Four. 21 PROSPECTIVE JUROR LANGSTON: Five. 22 PROSPECTIVE JUROR WRIGHT: Four. 23 PROSPECTIVE JUROR HERDMAN: Three. 24 PROSPECTIVE JUROR MOBLEY: I'd say ten. 25 MR. DEVLAMING: Okay. All right. And KANABAY COURT REPORTERS 135 1 incidentally, your answers are not going to 2 get you on this jury and it ain't going to 3 get you off of the jury, so... 4 PROSPECTIVE JUROR DAKE: Five. 5 PROSPECTIVE JUROR OSBORN: Five. 6 PROSPECTIVE JUROR GARRISON: One. 7 PROSPECTIVE JUROR SHEA: Zero. 8 PROSPECTIVE JUROR ROTHSCHILD: One. 9 PROSPECTIVE JUROR LOVELY: Four. 10 PROSPECTIVE JUROR LEPLEY: Ten. 11 PROSPECTIVE JUROR DALLA ROSA: Two. 12 PROSPECTIVE JUROR WICKETT: Four. 13 PROSPECTIVE JUROR MENSCH: Ten. 14 MR. DEVLAMING: Okay. All right. Now 15 you all heard -- you haven't heard any facts 16 in this case. Okay? We're both dying to 17 tell you what the facts are, and you're 18 probably scratching your heads saying what 19 the heck is this all about? How can you 20 take two days to -- when you sit up here 21 we'll be able to tell you all that. 22 Here's the last kicker I'd like to ask. Is 23 there anything you all brought through that door 24 on an individual basis based upon this type of 25 charge that you feel that either Miss Wardell or KANABAY COURT REPORTERS 136 1 I should know about whether you can be fair and 2 impartial on a possession of marijuana case? 3 Run through your lives -- that you haven't 4 already told us. I mean, if you told us at the 5 bench or you've already told us, that's fine. 6 You don't have to repeat anything. But is there 7 anything else that you can feel in that regard? 8 Okay. And this probably -- 9 THE COURT: You have one hand. 10 MR. DEVLAMING: I do have a hand. Yes, 11 sir. 12 PROSPECTIVE JUROR EZELL: When I was 13 growing up, a lot of my friends, or actually 14 one of my friends was into doing marijuana, 15 and when I left Arizona my parents were 16 doing it. My -- since then my father that I 17 know had stopped, and my step-mom I know 18 still does. And that's -- I feel that I 19 have seen that drug, I've been close enough 20 to the drug to smell what it smells like, 21 and if I wanted it all I would have to do is 22 probably go into the room while they weren't 23 home. 24 I have never wanted to do any of those 25 drugs. I don't think I would be unfair as a KANABAY COURT REPORTERS 137 1 jury, but I also think you guys should know 2 that, that I have been close enough to where it 3 would be something that -- not saying it would 4 make me feel not right being sitting over there. 5 MR. DEVLAMING: Okay. One follow-up 6 question, Mr. Ezell. Do you feel that 7 because of that exposure that you would be 8 more prone to favor one side or the other? 9 PROSPECTIVE JUROR EZELL: If a person 10 was using it and -- I don't know how to put 11 that. If a person was using a drug that was 12 illegal and did it to the point to where it 13 was his own personal effect and it stayed 14 with themselves and nothing outside of their 15 own house and no one else knew about it, I 16 would not feel too bad about it. But if it 17 was to where the other people were 18 perceiving it from the person, that's where 19 I would start seeing that's a little bit 20 bad. 21 MR. DEVLAMING: Personal use does not 22 offend you, but distribution or selling it 23 or what have you? 24 PROSPECTIVE JUROR EZELL: Yes. 25 MR. DEVLAMING: Mr. Casella, let me ask KANABAY COURT REPORTERS 138 1 you one question before we adjourn here. I 2 asked you a question or two about your past 3 occupation, that is, that you were in the -- 4 can I call it the surveillance field? I 5 mean, did you do surveillance as well? 6 PROSPECTIVE JUROR CASELLA: Yes, I 7 have. 8 MR. DEVLAMING: Okay. And did you do 9 it for a private agency or the government? 10 PROSPECTIVE JUROR CASELLA: It was Army 11 -- it was for Army counter-intelligence, 12 special agent. 13 MR. DEVLAMING: Okay. So you did it 14 for the government? 15 PROSPECTIVE JUROR CASELLA: Yes. 16 MR. DEVLAMING: Okay. Did you ever do 17 it as a PI or a -- 18 PROSPECTIVE JUROR CASELLA: Yes, I did. 19 MR. DEVLAMING: You did that too? 20 PROSPECTIVE JUROR CASELLA: Yes. 21 MR. DEVLAMING: All right. Do you feel 22 that since we told you a little bit about 23 the fact that you may hear from some 24 witnesses in this case that actively do 25 that, do you feel as if that would affect KANABAY COURT REPORTERS 139 1 your ability to be fair and impartial in 2 deciding their testimony? 3 PROSPECTIVE JUROR CASELLA: No, I don't 4 think it would have any kind of consequences 5 at all as to what I would think. 6 MR. DEVLAMING: All right. Thank you. 7 THE COURT: Are you done? 8 MR. DEVLAMING: Yes, sir. 9 THE COURT: Thank you. Ladies and 10 gentlemen, at this time we are going to take 11 a fifteen-minute recess. After we do that, 12 when you all come back, we will have our 13 panel and we will figure out whether or not 14 they need you for the rest of the day. I 15 don't believe actually they do, so those who 16 are not picked will be released. Let's take 17 fifteen minutes. 18 (A RECESS WAS HAD) 19 (OUTSIDE THE PRESENCE OF THE JURY) 20 THE COURT: Mr. Bunker apparently is 21 down in the media room, which I think I knew 22 he was gonna go to. I didn't realize that 23 was reserved particularly for anybody in 24 particular. Is it -- I don't know, is there 25 some sort of moratorium on the media room KANABAY COURT REPORTERS 140 1 for anybody in particular? 2 MR. SOMMER: Judge, it's just that he 3 is alined with one side in the case, and we 4 are news media, and first off, we're not 5 taking sides, and second off, we have to 6 talk to our editors on the telephone and 7 things like that and you have conversations 8 that you don't necessarily want to share 9 with the general public. That's -- 10 THE COURT: All right. Well, after 11 lunch I'll address it. Not right now. All 12 right? Are you ready, Mr. DeVlaming? 13 MR. DEVLAMING: Yes, sir. 14 THE COURT: All right. Miss Wardell, 15 are you also ready? 16 MS. WARDELL: Yes, your Honor. 17 THE COURT: Let the record reflect that 18 the defendant was present during the entire 19 voir dire, has already consulted with his 20 attorney as to who should serve on this 21 jury. 22 As it relates to challenges for cause, I 23 think we all agree that Mr. Marx, Juror 24 number -- voir dire panelist, rather, number 25 three is cause. Does everybody agree with that? KANABAY COURT REPORTERS 141 1 MS. WARDELL: Yes, sir. 2 THE COURT: State? Defense? 3 MR. DEVLAMING: Correct. 4 THE COURT: Okay. Now, State, do you 5 have any other challenges for cause? 6 MS. WARDELL: Judge, number four and 7 number eighteen both have brothers in the 8 prison system as a result of Pinellas County 9 prosecutions. 10 THE COURT: Yeah. Do you have a 11 response to that, Mr. DeVlaming? 12 MR. DEVLAMING: Sure. I mean, you need 13 to ask whether or not -- that doesn't 14 disqualify them as jurors. They need to ask 15 whether or not it would affect them, and 16 there was no such question, so with an 17 absent record -- 18 THE COURT: Actually I think there was 19 that question and I think the answer was no, 20 so I don't find those gentleman to be cause. 21 Any others, Miss Wardell? 22 MS. WARDELL: No. 23 THE COURT: Mr. DeVlaming, do you have 24 any challenges for cause? 25 MR. DEVLAMING: None for cause. KANABAY COURT REPORTERS 142 1 THE COURT: All right. Now, State, as 2 it relates to jurors number one, two, four, 3 five, six and seven, do you have any 4 challenges? 5 MS. WARDELL: Judge, I would strike 6 number six. 7 THE COURT: All right. State has 8 struck number six. 9 MS. WARDELL: Your Honor? 10 THE COURT: Yes. 11 MS. WARDELL: Do you allow back 12 strikes? 13 THE COURT: The law allows back 14 strikes, so I have no choice in that matter. 15 Six is struck. 16 Now, Mr. DeVlaming, as it relates to one, 17 two, four, five and seven and eight, do you have 18 any challenges? 19 MR. DEVLAMING: We would excuse juror 20 number five. 21 THE COURT: All right. The Defense has 22 used its first challenge. State, as it 23 relates to one, two, four, seven, eight and 24 nine, any challenges? 25 MS. WARDELL: No. KANABAY COURT REPORTERS 143 1 THE COURT: State -- I mean, 2 Mr. DeVlaming, Defense? 3 MR. DEVLAMING: We would excuse juror 4 number eight. 5 THE COURT: The Defense has used a 6 second challenge. State, as it relates to 7 one, two, four, seven, nine and ten, any 8 challenges? 9 MS. WARDELL: Ten. 10 THE COURT: The state has used it 11 second challenge. Defense, as it relates to 12 one, two, four, seven, nine and eleven, any 13 challenges? 14 MR. DEVLAMING: Number seven. 15 THE COURT: The Defense has used its 16 third challenge. 17 State, as it relates to one, two, four, 18 nine, eleven and twelve, any challenges? 19 MS. WARDELL: You said we're up to 20 twelve? 21 THE COURT: We're up to twelve. It is 22 one, two, four, nine, eleven, twelve. 23 MS. WARDELL: One. 24 THE COURT: The State has used its 25 third and final challenge also. So the KANABAY COURT REPORTERS 144 1 panel then is two, nine, eleven, twelve -- 2 hold on. 3 MR. DEVLAMING: No, no. 4 THE COURT: Two, four, nine, eleven, 5 twelve and thirteen. Now, anybody object to 6 or wish to strike Anne Carter, number 7 fourteen, as an alternate? State? 8 MS. WARDELL: I'll accept. 9 THE COURT: Defense? 10 MR. DEVLAMING: We'll strike. 11 THE COURT: Defense has used it's one 12 challenge for the alternate. State, do you 13 wish to strike Mr. Backus as an alternate? 14 MS. WARDELL: Yes, sir. 15 THE COURT: The State has used its one 16 challenge as an alternate. The alternate 17 will be Mark Wilson. I believe we have a 18 panel. What I intend to do is read them, 19 send them to lunch, we'll have an hour, and 20 then after lunch we'll begin with the 21 State's case and opening. Is there anything 22 else? 23 MS. WARDELL: I just want to remind you 24 to give the admonition about the paper again 25 and especially with all the people KANABAY COURT REPORTERS 145 1 circulating. 2 THE COURT: Okay. Now, if I forget to 3 give that admonition before I let them go, 4 remind me to give the admonition. 5 MS. WARDELL: I was trying to -- 6 THE COURT: Please bring them back in. 7 (IN THE PRESENCE OF THE JURY) 8 THE COURT: Okay. When I call your 9 name please come forward. Miss Scurlock, 10 Christopher Lovett, John Casella, 11 Glenn Swonger, John Ondich, Maria Bartocci, 12 Mark Wilson. 13 Ladies and gentlemen, this is our panel. 14 The rest of you are free to leave at this time. 15 We thank you for your willingness to participate 16 in the process on behalf of the State and the 17 Defense and on behalf of all the people of the 18 Sixth Circuit. I also understand that you are 19 not needed for the rest of the day, so you are 20 able to go home. You all should have a good 21 day. 22 THE COURT: Madam Clerk, please swear 23 the panel. 24 (THE PANEL WAS DULY SWORN) 25 THE COURT: Thank you. Please have a KANABAY COURT REPORTERS 146 1 seat. 2 Ladies and gentlemen of the jury, you've 3 been selected and sworn to try the case of the 4 State of Florida versus Mr. Jesse Prince, Jr. 5 This is a criminal case, and the defendant is 6 charged with the crime of possession of 7 marijuana. 8 The definition of the elements of the crime 9 of possession of marijuana will be explained to 10 you later. It is your solemn responsibility to 11 determine if the State has proved it's 12 accusation beyond and to the exclusion of every 13 reasonable doubt against the defendant. 14 Your verdict must be based solely on the 15 evidence, or the lack of evidence, and the law. 16 The information that I read to you is the 17 charging document and is not evidence in this 18 case and it is not to be considered by you as 19 any proof of the defendant's guilt. 20 It is the judge's responsibility to decide 21 which laws apply to this case and to explain 22 those law to you. It is your responsibility to 23 decide what the facts of the case may be, and to 24 apply the law to those facts. Thus, the 25 province of the jury and the province of the KANABAY COURT REPORTERS 147 1 court are well defined, and they do not overlap. 2 This is one of the fundamental principles of our 3 system of justice. 4 Before proceeding further, it will be 5 helpful if you understand how a trial is 6 conducted. 7 At the beginning of the trial the attorneys 8 will have an opportunity, if they wish, to make 9 an opening statement. The opening statement 10 gives the attorneys a chance to tell you what 11 evidence they believe will be presented during 12 the trial. What the lawyers say is not 13 evidence, and you should not consider it as 14 evidence. 15 Following the opening statements, witnesses 16 will be called to testify under oath. They will 17 with examined and cross-examined by the 18 attorneys. Documents and other exhibits may 19 also be produced as evidence. 20 After the evidence has been presented, the 21 attorneys will have the opportunity to make 22 their final arguments. 23 Following the arguments by the attorneys, 24 the Court will instruct you on the law that is 25 applicable to this case. KANABAY COURT REPORTERS 148 1 After the instructions are given, you will 2 then retire to consider your verdict. 3 You should not form any defendant or fixed 4 opinion on the merits of this case until you 5 have heard all the evidence, the arguments of 6 the lawyers and the instructions on the law by 7 the judge. Until that time you should not 8 discuss this case amongst yourselves. 9 During the course of the trial the Court 10 may take recesses, 5during which you will be 11 permitted to separate and go about you personal 12 affairs. During these recesses you will not 13 discuss this case with anyone nor permit anyone 14 to say anything to you or in your presence about 15 this case. If anybody attempts to say anything 16 to you or in your presence about this case, tell 17 them that you are on the jury trying the case 18 and ask them to stop. If they persist, leave 19 them at once and immediately report the matter 20 to the court deputy, who will then advise me. 21 This case must be tried by you only on the 22 evidence presented during the trial in your 23 presence and in the presence of defendant, the 24 attorneys and the judge. Jurors must not 25 conduct any investigation of their own. KANABAY COURT REPORTERS 149 1 Accordingly, you must not visit any of the 2 places described in the evidence. You must not 3 read nor listen to any reports about this case. 4 Further, you must not discuss this case with any 5 person and you must not speak with the 6 attorneys, the witnesses or the defendant about 7 any subject until the deliberations are 8 finished. 9 In every criminal proceeding the defendant 10 has the absolute constitutional right to remain 11 silent. At no time is it the duty of the 12 defendant to prove his innocence. From the 13 exercise of the defendant's right to remain 14 silent, a jury is not permitted to draw any 15 inference of guilt, and the fact that the 16 defendant did not take the witness stand must 17 not influence your verdict in any manner 18 whatsoever. 19 The attorneys are trained in the rules of 20 evidence and trial procedure, and it is their 21 duty to make all objections they feel are 22 proper. When an objection is made you should 23 not speculate on the reason why it is made; 24 likewise, when an objection is sustained, or 25 upheld, by me, you must not speculate on what KANABAY COURT REPORTERS 150 1 might have occurred had the objection not been 2 sustained, nor what the witness might have said 3 had he or she been permitted to answer. 4 Let me reiterate, you can see that there 5 are cameras and folks with photo cameras and 6 reporters and the like that will be around this 7 case. There may be reports on television. 8 There maybe reports in the newspaper tomorrow or 9 later this evening. You are not permitted to 10 listen to any of those reports or to read any of 11 those accounts, nor can you speak to those 12 people at all until these -- this case is done 13 and your deliberations are finished. Does 14 everybody understand that? 15 THE JURY: Yes, sir. 16 THE COURT: At this time we're going to 17 take a lunch break. You, of course, are 18 free to leave the building if you wish. I 19 would prefer that you don't because every 20 now and then something happens, a car breaks 21 down and you can't get back. We do have a 22 cafeteria downstairs. I would ask that you 23 all be back to -- the bailiff will tell you 24 where to go, where to report to by 25 one-twenty. And we shall try and start this KANABAY COURT REPORTERS 151 1 trial promptly again at one twenty-five. 2 Please take the jury out. 3 (OUTSIDE THE PRESENCE OF THE JURY) 4 THE BAILIFF: The jury's out of the 5 hearing of the court, your Honor. 6 THE COURT: I decided that Mr. Bunker, 7 and somebody needs to tell him, is going to 8 have to leave the media room. All right. 9 We're on break until one twenty-five. 10 (LUNCH RECESS WAS HAD) 11 THE COURT: Mr. DeVlaming, 12 Miss Wardell, I had one of our jurors 13 attempt to approach me with a question when 14 I was in the lunch room. I did not allow 15 him to ask me that question, and I told him 16 he would have to raise that issue before 17 everybody so that the Court, if there was 18 something that needed to be answered, we 19 would do that in the presence of everyone 20 here. 21 So it is my intent at this time to bring 22 Mr. Swonger in here so that he can raise 23 whatever question he has. 24 (JUROR SWONGER ENTERED THE COURTROOM) 25 THE COURT: Okay. Wrong one. KANABAY COURT REPORTERS 152 1 JUROR SWONGER: The gentlemen beside me 2 had a couple questions. Is that who you're 3 looking for? 4 THE COURT: Okay. Which one is that? 5 Mr. Ondich? 6 JUROR SWONGER: Whichever one worked at 7 the hospital. 8 THE COURT: Okay. Bring Mr. Ondich in. 9 MR. DEVLAMING: Yes. Mr. Ondich. 10 THE COURT: Is that Mr. Ondich? Okay. 11 MS. WARDELL: He didn't have a lid on 12 that one, Judge. 13 THE COURT: Say again? 14 MS. WARDELL: He didn't have lid. 15 THE COURT: He has to have a lid. It's 16 either a lid or a straw or I'm in trouble if 17 it spills. 18 (JUROR ONDICH ENTERED THE COURTROOM) 19 THE COURT: Mr. Swonger -- I'm sorry, 20 Mr. Ondich. Sir, you had a question you 21 wanted to raise. Is this something that you 22 don't mind the entire -- 23 JUROR ONDICH: No, I don't mind at all. 24 With me working in the medical field in an 25 emergency room, I don't associate with the KANABAY COURT REPORTERS 153 1 cops or the police, but I do see them 2 frequently come in and go out, and I just -- 3 you know, I didn't make that present before. 4 It won't affect any opinion I have or my 5 judgment I have on this or anything like 6 that. But I just wanted you guys to know 7 that with we working in the emergency room I 8 do frequently see a lot of different cops 9 come in and go and things like that. 10 THE COURT: Okay. Did you all have any 11 questions regarding that? 12 MS. WARDELL: No, Judge. 13 MR. DEVLAMING: No, sir. 14 THE COURT: Thank you, Mr. Ondich. 15 Please bring the entire panel back. 16 THE BAILIFF: Bring the entire panel? 17 THE COURT: Uh-uh. He can have a seat 18 at this point. 19 MR. DEVLAMING: Judge, could we -- 20 THE COURT: Come on up. We don't need 21 the court reporter. 22 (WHEREUPON A DISCUSSION WAS HAD OFF THE RECORD) 23 (IN THE PRESENCE OF THE JURY) 24 THE BAILIFF: Your honor, the jury's in 25 the courtroom and seated. KANABAY COURT REPORTERS 154 1 THE COURT: Would counsel approach one 2 more time, please. 3 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 4 THE COURT: I am pointing out to the 5 attorneys at this time that I tend to allow 6 jurors to ask questions. I give them a pad 7 and tell them to write it down and have them 8 bring the question back up here, read it to 9 attorneys, and we decide as a group whether 10 or not this is a question that can or cannot 11 as a matter of law be asked. 12 At this point in time I'm asking whether or 13 not either side has an objection and what that 14 objection would be if such a thing were allowed 15 today. 16 MR. DEVLAMING: Well, the obvious 17 problem, Judge, is that if it's an 18 inappropriate question, how then do you tell 19 the jury? 20 THE COURT: I specifically tell them 21 before that I have decided that this is a 22 question that cannot be asked, so it's 23 always my fault, and I am always the one 24 making that decision. 25 MR. DEVLAMING: Okay. On a KANABAY COURT REPORTERS 155 1 question-by-question basis then? 2 THE COURT: It is a 3 question-by-question basis. I find it makes 4 it a lot easier for me because they don't 5 come back with questions once they go out 6 most of the time because they have already 7 asked all the questions they had. 8 MR. DEVLAMING: And I understand the 9 status of the law is it is discretionary for 10 them to ask questions, and I have no problem 11 with your procedure. 12 MS. WARDELL: You got the note pads? 13 THE COURT: Say again? 14 MS. WARDELL: You got the note pads? 15 THE COURT: I have a note pad. 16 MS. WARDELL: I thought you meant to 17 give each one of them one from the get-go. 18 THE COURT: No. They don't have note 19 pads. They can't take notes. 20 MS. WARDELL: I didn't think so. 21 THE COURT: The only question -- I will 22 send a pad over with a pen if they have a 23 question. Okay? 24 MS. WARDELL: Okay. 25 THE COURT: Okay. KANABAY COURT REPORTERS 156 1 MR. DEVLAMING: No. Wait a minute, I 2 thought -- 3 MS. WARDELL: He thought what I 4 thought. 5 MR. DEVLAMING: Yeah. How do they -- 6 if they are in the middle of listening to a 7 witness, how do they say I need the pad? 8 What do they do? 9 THE COURT: Oh, at the end, before the 10 witness is released. I will explain to them 11 in just a second that before the witness is 12 released I will turn to them and ask if they 13 have questions. If they do, then I will 14 send a pad over. So their questions don't 15 even arise until after you all are done. 16 MS. WARDELL: Right. But we're saying 17 if they think of that question in the middle 18 instead of listening to what's going on, 19 they're going to go don't forget this 20 question, don't forget this question, and 21 not listen to what's going on. 22 THE COURT: They got to hold them or 23 lose them. Okay? 24 MS. WARDELL: Or get distracted. 25 THE COURT: Okay. KANABAY COURT REPORTERS 157 1 (IN THE PRESENCE OF THE JURY) 2 THE COURT: Ladies and gentlemen, we're 3 going to go into the opening statement. Let 4 me tell you before we get started, the law 5 allows me to allow you all to ask questions 6 of the witnesses. Let me tell you how that 7 is going to proceed. 8 I have a note pad here, and I will send the 9 note pad over to you along with a pen to write 10 your question. What will happen is the State 11 will call a witness or the Defense, the witness 12 will have a direct examination, a 13 cross-examination, maybe a redirect and a 14 recross. 15 Once that witness is done testifying, I 16 will then turn to the jury and ask, Do the 17 jurors have any questions? If you have 18 questions, please raise your hand. I will send 19 the note pad over, and then you can please write 20 your question down. 21 At that time I will have the attorneys 22 approach. We will look at the question to 23 determine whether as a matter of law that is a 24 question that can or cannot be asked. 25 If I determine that that is a question that KANABAY COURT REPORTERS 158 1 cannot be asked, I will not allow the question 2 to be asked and I will not also explain to you 3 why the question can't be asked. It just won't 4 be asked. And if it is a question that can be 5 asked, then I will either ask that question 6 myself or I will ask one of the attorneys to ask 7 the witness the question. 8 Does everyone understand? 9 THE JURY: Yes. 10 THE COURT: It is often the occasion 11 that I forget to ask the jurors, Do you have 12 any questions? So if you see a witness 13 stepping down and leaving the witness stand 14 and walking out and you had a question you 15 wanted to ask, raise your hand. 16 The thing I'm asking you not to do is to 17 let the person get out of the door before you 18 raise your hand. If you see them leaving and I 19 have forgot to ask you do you all have 20 questions, please raise your hand. Okay? 21 Counsel for the State prepared to proceed 22 to opening? 23 MS. WARDELL: Yes, your Honor. 24 THE COURT: You may proceed at this 25 time. KANABAY COURT REPORTERS 159 1 MS. WARDELL: May it please the court. 2 Members of the jury, at the end of this 3 trial I'm going to ask you to convict Mr. Prince 4 of possession of marijuana based solely on law 5 enforcement testimony with regards to law 6 enforcement's observation, law enforcement's 7 duties and responsibilities, and evidence that 8 the law enforcement seized in this case. And in 9 order to do that, I'm going to walk you through 10 what I anticipate law enforcement to testify to. 11 Okay? 12 At the end of April of 2000, an informant, 13 an individual, some might call him a snitch, 14 came to Detective Crosby. Detective Crosby has 15 been with Largo for some seventeen years. He's 16 very experienced in narcotics investigation, and 17 this informant came and brought him some 18 information, some information about 19 Jesse Prince. 20 Now, Detective Crosby didn't run out and 21 arrest him and send charges on him based solely 22 on what the informant said. Detective Crosby 23 did what's expected of him, and that was develop 24 his own independent corroboration of the 25 criminal wrongdoing that was alleged against KANABAY COURT REPORTERS 160 1 Jesse Prince, and I'm going to tell you how that 2 happened. 3 On May 7, 2000, one of the dates the judge 4 read to you in the charging document, from May 7 5 law enforcement, Detective Crosby disguised as 6 Mitch, went undercover with this informant to 7 the defendant's home. The informant had already 8 developed a relationship with the defendant, so 9 that it was no big deal for him to bring this 10 officer, albeit undercover, to their home. 11 Once inside the home there was greetings, 12 everything was friendly, it was a very casual 13 atmosphere. They went to the computer room, and 14 Mr. Prince offered Mitch, law enforcement, the 15 informant, some beer. Yeah, everybody had a 16 beer. You know, things were very casual. 17 Well, then Mr. Prince asked if anybody 18 wanted a, quote, smoke. Now Detective Crosby, 19 Mitch, is going tell you that he was kind of 20 taken aback. He was a little surprised. 21 Although he had been told what to expect and 22 things that might occur, he didn't think that 23 topic was going to come up so quickly in this 24 meeting with Mr. Prince, but it did. And in 25 order to maintain his undercover status, he KANABAY COURT REPORTERS 161 1 agreed. And so, sure enough, a joint was 2 produced, and I think actually Mr. Prince's 3 girlfriend brought the joint out. It was lit, 4 it was passed, and Mr. Prince passed the joint 5 to Detective Crosby. 6 Now, during this interaction, the subject 7 of plants came up. The confidential informant 8 had been to the house previously and had seen 9 some things, so the confidential informant 10 brought up, "Hey, how are the plants doing?" 11 And that's when Mr. Prince said, "They're 12 getting bigger, you know, they're doing okay. 13 They're getting bigger." 14 Well, it just so happens that Mr. Prince 15 and his girlfriend had moved into this home at 16 the end of February. It was a new home to them 17 because this is the April/May time frame. And 18 they were proud of this house. It was a very 19 nice house, and the girlfriend, Miss Phillips, 20 wanted to show it off to these folks, and so she 21 took Mitch, law enforcement, on a tour, if you 22 will, of the home. 23 And part of that tour included the back 24 porch pool area. This is a pool that was 25 enclosed by a screen, two screen doors that KANABAY COURT REPORTERS 162 1 come from the outside yard to the pool, and 2 you get to the pool through the living room 3 sliding door. Okay? It's part of the 4 property. It's adjoined. It's attached. 5 And once outside in this pool area 6 Detective Crosby saw with his own two eyes what 7 he recognized absolutely, positively, no doubt 8 about it, to be marijuana plants growing. 9 In fact, he saw approximately four to five. 10 In fact, Mr. Prince joined him in the pool porch 11 area, this enclosed area and even pointed out a 12 couple that Crosby may not have seen, because 13 the way these plants were, they were kind of 14 scattered among other household common plants. 15 Okay? So this is May 7, and this meeting, if 16 you will, ends and law enforcement goes about 17 their business. 18 Now, the next time law enforcement makes 19 contact with Mr. Prince is going to be August 6. 20 That's the other date we're going to be talking 21 about. That's about a three-month time delay, 22 and you might be thinking, well, gee, I wonder 23 why it took the cops three months to make their 24 second visit to do something else? Well, the 25 Detective's going to tell you that he had some KANABAY COURT REPORTERS 163 1 knee surgery, he had some other case, he got 2 busy, he got distracted and, you know, just this 3 was on his list of things to do. 4 So August 6 he goes back to the defendant's 5 home to make another independent corroborative 6 observation of what Mr. Prince was doing. And 7 he stopped by the home along with the informant 8 this time, and the guise, the ruse if you will, 9 was, hey, Mitch, law enforcement, and the 10 informant were on their way out of town to the 11 Keys, and they just wanted to say goodbye and to 12 check and see what was going on. 13 And when they got there Miss Phillips, the 14 girlfriend, was out back in the pool area 15 watering the plants, and Mitch, law enforcement, 16 went out to that area, said hello to her, and 17 again observed, independent of his informant, a 18 marijuana plant growing. It appeared to the 19 officer to be about four or five plants due to 20 the bushiness of it, and it was potted in a pot. 21 And so this visit was pretty short because 22 it was a Sunday morning, and I think they had -- 23 may have woken Mr. Prince out of bed, but 24 ultimately he comes out to the porch and he 25 talks about how that plant needed sunlight and KANABAY COURT REPORTERS 164 1 how it was growing, and I think he even drug it 2 out in the sunlight to get it what it needed. 3 So that's the August 6 visit. 4 This is the second time in three months 5 that law enforcement has actually observed 6 marijuana in the presence of Mr. Prince and 7 observed him acknowledge the plants. Okay? 8 Based on this information, because this plant 9 was in Mr. Prince's home, law enforcement came 10 back and got a warrant, a warrant to search and 11 seize that plant. This was a very limited 12 warrant. 13 When you do a warrant you have to say what 14 it is you want to search for and where it is you 15 think this stuff is. Well, he knew where it 16 was, the porch pool area, and he knew what it 17 was, marijuana. So that's what the warrant 18 directed him to do. A judge signs it and now he 19 can -- law enforcement can go to that house, go 20 into that pool area and seize that plant, and 21 that's exactly what happened on August 11 of 22 2000. That warrant was executed. 23 Now, when a warrant is executed it's not 24 just one officer going and knocked on the door 25 and saying, "May I go in and search?" you know, KANABAY COURT REPORTERS 165 1 "this is what I want to do." What happens is 2 there is a tac team, a tactical team, and 3 everybody has an assigned duty and assigned 4 responsibility. It's a group because law 5 enforcement doesn't necessarily know what 6 they're going to encounter when they get there. 7 Somebody has the job of watching the 8 outside. Somebody has the job of maybe watching 9 the backyard, the side yard. Somebody has the 10 job of going into the home and making sure that 11 the various rooms are clear, if you will. 12 That's a law enforcement term for nobody hiding 13 in the closet or hiding up under the bed. 14 You know, they don't know these folks. 15 They don't know what they're getting into. So 16 there is going to be more than one person 17 because everybody has a responsibility. 18 Somebody has to read the warrant. The law 19 requires that you actually read the warrant to 20 the person before you start the search. 21 Somebody has to do the search. Okay? 22 So there are a lot of duties and a lot of 23 responsibilities, and this team went to 24 Mr. Prince's home early Sunday morning on 25 August 11, and this team secured Mr. Prince. He KANABAY COURT REPORTERS 166 1 was arrested basically for the probable cause 2 from what Crosby had seen a few days prior, and 3 you know, detained and sat there and watched by 4 another officer while they went to the pool area 5 to get the plant and come back out of the house. 6 And like I said, another officer went in to 7 clear the rooms and he was read the warrant. 8 But that's it. That's the case. It's as simple 9 as that. On three separate occasions law 10 enforcement observed marijuana in the home of 11 the defendant, and Mr. Prince acknowledged it. 12 He certainly was aware of it. 13 I'm going to ask you again at the end of 14 this case, based upon those observations, based 15 upon what a seventeen-year veteran of Largo 16 Police Department saw and observed and 17 recognized, I'm going ask you to find him guilty 18 of simple possession of marijuana. 19 THE COURT: Thank you, Miss Wardell. 20 Counsel for the defense wish to make opening 21 at this time? 22 MR. DEVLAMING: I would. 23 THE COURT: You may proceed, sir. 24 MR. DEVLAMING: May I have moment just 25 to set up, Judge? KANABAY COURT REPORTERS 167 1 THE COURT: Okay. 2 MR. DEVLAMING: Judge, is this all 3 right? I know you're not going to be able 4 to see the exhibits -- 5 THE COURT: It's fine with me. 6 MR. DEVLAMING: All right. 7 Members of the jury, the prosecutor opened 8 up her opening statement by saying she was going 9 to ask that you bring back a conviction based 10 upon the law enforcement testimony provided to 11 you in this case. She started out with a date 12 where an undercover confidential informant went 13 to the police, that date beginning in April. 14 We're going to have to back up a little 15 bit, and it's now my opportunity to tell you a 16 little bit about Mr. Prince, about how the 17 Church of Scientology becomes involved in this 18 case, and about how Mr. Prince was worked, 19 stalked, his life, his home and his family 20 invaded by the surreptitious actions of this 21 organization. 22 To do this I need to talk to you about the 23 players and about the hierarchy of what you're 24 going to learn about and about who was involved, 25 and in a minute I'm going to show you a time KANABAY COURT REPORTERS 168 1 line of what was involved. At the top of this 2 hierarchy is the Church of Scientology. 3 You're going to hear from testimony in this 4 case that the Church hires a law firm here in 5 Clearwater, it also has offices in Los Angeles, 6 California, by the name of Moxon and Kobrin. 7 Moxon and Kobrin is going to be testified to 8 hire certain private investigators. They 9 investigate individuals. They investigative 10 critics of the church, and they investigative 11 matters of security. 12 Moxon and Kobrin hired the investigator by 13 the name of Brian Raftery. And you're going to 14 hear his name throughout this trial. He has a 15 son that's also a private investigator. I put 16 the two boxes together, and you're going to hear 17 about how the two of them got together. 18 Also hired another private investigator. 19 So there are three private investigators 20 involved in this case. Actually there is going 21 to be four. Another fellow by the name of 22 Joseph Fabrizio. And approximately the 7th of 23 February of the year 2000, after being hired, 24 Joseph Fabrizio needed to find a black 25 confidential informant, a private investigator. KANABAY COURT REPORTERS 169 1 Someone with a firearms license, someone that 2 could come into this town and not be recognized, 3 someone that they could use to infiltrate this 4 man's life. 5 They found one. They found one in Lake 6 wales, Florida. Licensed to carry a firearm, 7 private investigator, and he's black. On the 8 7th of February what they did is Fabrizio 9 briefed him, told him everything that he could 10 know about Jesse Prince. 11 Jesse was a prior Scientologist in the 70s. 12 He worked his way up to really high in that 13 organization. In the early 1990s Jesse left 14 that particular organization, and when he did, 15 he left with its secrets. He is currently 16 listed as an expert witness in a local case, in 17 a local civil case that's here in town called 18 Lisa McPherson versus the Church of Scientology. 19 And you're going to hear that the reasoning 20 behind what I'm going to tell you they did in 21 this case, was to find any impeachment 22 information, anything they could find on this 23 man in order to convict him of a crime to 24 impeach his credibility in that civil case. 25 So Gaston meets with Fabrizio. Fabrizio KANABAY COURT REPORTERS 170 1 then brings in Raftery, and they have a 2 conversation with him. They arrive at a game 3 plan of what Gaston can do. He's to put himself 4 in the areas of this town so that he could meet 5 with this man, find a way to be able to be 6 friends with him, find a way to get into his 7 life, find a way to get into his home. Time 8 after time they went to local lounges, they went 9 to bars, they waited until the evening hours 10 where they could find Jesse Prince. 11 On February 7, you see that -- excuse 12 me, Gaston was hired. Not -- on almost a 13 daily basis, or I should say on a daily 14 basis, Raftery was following Prince. 15 Sometime during each and every day he was 16 following him. I think his testimony is 17 going to be he was never detected because he 18 is that good of an investigator. 19 But Gaston, time after time, positioned 20 himself from February 7 to April 1 going to 21 lounges, going to bars, going to places that he 22 might be able to find Jesse in a hopes that he 23 would go there. Night after night, report after 24 report, every day he had to write a report where 25 he went, what he saw night after night, and KANABAY COURT REPORTERS 171 1 nothing. 2 Never saw him in a lounge, never saw him in 3 a bar, never saw him doing anything unlawful, 4 unethical, going home to his fiancee, their 5 nine-year-old and their thirteen-year-old, until 6 April 1st. 7 Raftery, Fabrizio, through cell phones 8 said, Jesse's going to Wilson's lounge. He's on 9 his way to Wilson's. Gaston hightails it first 10 to get to Wilson's. He gets himself into -- 11 it's a bar, a liquor place. It has a package 12 store and also a place where you can sit down 13 and have a drink. It's on Belcher Road in north 14 county. 15 Gaston gets in there and he sits at a bar 16 and starts watching television, positions 17 himself so you have to walk by him. He's the 18 only black man in the bar. Jesse walks in with 19 Dee and they are the only African Americans as 20 well. Jesse nods his head, says hello. Gaston 21 says hello. And with a smile, for the first 22 time he began his physical investigation of 23 Jesse Prince. Fourteen days later he hits pay 24 dirt again. 25 Now, he is still surveilling, still going KANABAY COURT REPORTERS 172 1 to lounges, still going to different parts of 2 town, still following him, watching him having 3 dinner on the beach, watching him drive back 4 with his fiancee, following him, looking at him, 5 trying to catch him doing something. Nothing. 6 On the 15th Gaston gets into Jesse Prince's 7 house. He ends up talking to Prince. Prince -- 8 Mr. Prince is a very, very amiable fellow. He 9 says, "I'm new in town." 10 "You get an opportunity, you stop by." 11 And that's exactly what he did. He was -- 12 well, he was invited in the sense he said, "You 13 can stop by on this date." He stopped by. He 14 got himself for the first time into the Prince's 15 home and began to look around. 16 On April 24 of that year Gaston becomes a 17 confidential informant. He goes to the Largo 18 Police Department and he says, "I want law 19 enforcement involved in this. There's a 20 marijuana plant inside Jesse's house. I need a 21 cop to come in and look at it so we can get that 22 man arrested and put him in jail." Never told 23 the police about this impeachment information 24 for this civil case. Never talked to him about 25 what was behind it all. KANABAY COURT REPORTERS 173 1 As the prosecutor said, on May 7, that's 2 when Mr. Crosby and Mr. Gaston also went into 3 the house under a ruse, but they get into the 4 house. They look around. The investigation of 5 Jesse Prince -- now, let me stop right here. 6 This is on May 7 now. All this time has gone 7 by. Law enforcement comes in and they see what 8 they say is some plants. 9 Let me tell you what Jesse says about the 10 plants because he told the law enforcement this. 11 Now, Jesse doesn't know he's being investigated, 12 doesn't know his life is being infiltrated. 13 So these people are talking about 14 marijuana, he's talking about marijuana, and 15 Jesse says to them, "We just bought this house." 16 He and Dee just got into that house in February. 17 He said, "When we got into this house we saw 18 marijuana growing and we pulled it up and these 19 things kept growing right in their place. 20 Now, he doesn't know he's talking to cops. 21 It's not one of these after the facts. He said, 22 "This stuff's growing." At that time he had no 23 idea who would put that stuff in a place that's 24 accessible. You're going to see pictures of his 25 property. You can walk right back onto Jesse's KANABAY COURT REPORTERS 174 1 property. There's a lanai that doesn't lock, 2 and there's some plants that his girlfriend 3 takes well care of, tropical plants and so 4 forth. There was supposedly a plant in among 5 them. 6 The plant was growing out of this dead 7 rubber tree planter. And you're going to 8 see the pictures, and it's as dead as it 9 looked then, it's as dead as it looks now. 10 It was sitting here popping up like that, 11 and Jesse said, "I pulled them out. That 12 grew in it's place." 13 This is the evidence they have in this 14 case. That's the evidence they're going to 15 introduce in this case. Is growing out of this 16 dead rubber tree plant that this man went to law 17 enforcement and had law enforcement brought into 18 his home. 19 Let's just take it from here on May 7. You 20 see the different -- May 7 to August 6, that's 21 three months. Nothing. Every day that man's 22 being surveilled. Every day he is being looked 23 at. Every day the agents of the Church of 24 Scientology are following that man, telling 25 people by cell phones where he is, what he's KANABAY COURT REPORTERS 175 1 doing, what they can expect, where is he on his 2 way to. All have cell phones. 3 All of them are following Jesse Prince. 4 For a 185 days, from the time this started until 5 the time of Mr. Prince's arrest, that, that is 6 what they've got. Looking into that man's life, 7 him not knowing they're looking into his life, 8 that's what it is. 9 Now, members of the jury, you're going to 10 hear the legal definitions of possession. 11 You're going to find out he never touched that 12 plant, he never cultivated that plant, he never 13 fertilized that plant, he never watered that 14 plant. 15 You're going to hear that from the people 16 that were in that house. But the only thing you 17 are going to hear -- let me tell you what we did 18 to Gaston. I'm going to tell you what we did to 19 him. Gaston was a confidential informant. He 20 never thought that we would go back up the 21 ladder. He never thought we'd find out who he 22 was. He was insulated. He was confidential. 23 He was given a number. He was from out of town. 24 By the way, he wasn't Gaston. We all know 25 that, right? Confidential informants use fake KANABAY COURT REPORTERS 176 1 names. His was Rinzy Trinidad. That was his 2 fake name. 3 Prince has no idea who the man was who 4 infiltrated his life. But we hired two 5 investigators. We hired two investigators, and 6 we did a check of the state and found out the 7 black investigators, found out who 8 Rinzy Trinidad may be. 9 We called him up on the phone. I didn't, 10 but the private investigator did and got his 11 answering machine. Said to Jesse, "Listen to 12 the voice on the answering machine." 13 "That's him. That's him." 14 So my two private investigators called him 15 up and said, "Want to hire you for a job," and 16 Mr. Gaston said sure. So he said, "What do you 17 want me to do?" He says, "We want you to sweep 18 a --" I think it's called sweeping a restaurant 19 or what have you. That's when you go in and 20 find out if employees are stealing or what have 21 you. 22 So Gaston says, "Okay. I'll be happy to 23 take the job." So my investigators -- their 24 names are Patterson and Emmons. You're going to 25 be hearing from them too -- they go over -- they KANABAY COURT REPORTERS 177 1 go over to Lake Wales, Florida. That's where 2 Gaston is from, Lake Wales. And they meet in a 3 restaurant over there and ostensibly to hire 4 Mr. Gaston. 5 Jesse's out in the car. Okay? So he 6 can -- you know, so he can identify Gaston. And 7 Mr. Gaston comes in, shakes the hand of 8 Mr. Patterson who is supposedly going to be the 9 person hiring him. Emmons makes the 10 introduction, excuses himself, gets Jesse, Jesse 11 comes in and says -- this is a crowded 12 restaurant so nobody's in any danger. 13 Jesse comes walking around the corner and 14 Gaston goes, "Oh, heck." He realized right then 15 that Jesse knew exactly who he is, figured out 16 that he was going to figure out what he had 17 done, figured out who he was working for, what 18 his orders were and so forth. So they stayed 19 and they talked for forty-five to sixty minutes. 20 There's a rule of confidentiality that 21 Mr. Gaston held pretty close to. He didn't tell 22 them everything about what he was doing. He did 23 admit that he was working for the Church of 24 Scientology, that he was hired by Fabrizio or 25 Raftery I think, and he apologized to Jesse. KANABAY COURT REPORTERS 178 1 He indicated on at least one occasion that 2 he wanted to call Jesse, tell him he was being 3 set up. And he also indicated that he knew that 4 Jesse had removed some of those plants and 5 pulled them out, grew back again. He didn't 6 admit to planting them. I'm not going to tell 7 you that he admitted to that. 8 After forty-five minutes in the bar 9 everybody left. People were cordial. He's 10 going to testify that when they walked outside 11 that he hugged Jesse and Jesse hugged him back 12 and they went on their way. Later he did call 13 Crosby, and didn't know whether he was being set 14 up, and reported the incident to him. 15 By the way, I did leave one person out as I 16 was telling you this and that is this follow by 17 the name of Ben Shaw. You're going to hear 18 Raftery, who was hired by this law firm on 19 behalf of the Church of Scientology, that's the 20 contact with the church. This is the main 21 private investigator, been with them and with 22 the church for years. He's going to tell you 23 that church pays him $187,200 a year to do 24 security. 25 He was required to report to Ben Shaw. KANABAY COURT REPORTERS 179 1 Ben Shaw works for the Office of Special Affairs 2 OSA. OSA is the division of the Church of 3 Scientology that investigates critics. So 4 Raftery was telling Ben Shaw, so that he could 5 go back to the church, what he was doing on a 6 daily basis every single night. Every single 7 night there was report made. We were able to 8 ultimately get those reports from I forgot who 9 it was and learned about the things that I'm 10 telling you. 11 Members of jury, this does not start with 12 law enforcement. It probably ended that way, 13 but this is how we got there. From February 7 14 through the May's, wasn't Jesse's plant, didn't 15 own it, didn't grow, didn't possess it, 16 fingerprints aren't anywhere on it, didn't do 17 anything with it. 18 I'm going to show you about three minutes 19 of this tape, and I'm going to ask you to look 20 up here on the screen for a second. And I'm 21 going to tell you the significance of this. 22 This is where Jesse was arrested, and you're 23 going to see the plant coming out of the house. 24 You will -- this whole tape is a surveillance 25 tape. I'm just going to show you probably about KANABAY COURT REPORTERS 180 1 two, three minutes. 2 It starts and there's really nothing on the 3 beginning, but you will have the opportunity, if 4 you have the desire -- and this is I'm showing 5 to you. 6 (THE VIDEOTAPE WAS PLAYED) 7 MR. DEVLAMING: That's Dee, his 8 fiancee. 9 UNIDENTIFIED SPEAKER: Not now. I'll 10 call you back. 11 (THE VIDEOTAPE WAS STOPPED) 12 MR. DEVLAMING: Now I'll tell you the 13 significance of that tape. That was the 14 actual arrest at Jesse Prince's home after 15 Largo Police Department, through their 16 procedures, six officers showed up, executed 17 the warrant, early morning hours when Jesse 18 was and his wife were sleeping and kids were 19 sleeping. Police came in as they do under 20 the procedure and went through every room. 21 They do that for their own protection to 22 make sure there isn't anybody around. 23 They saw no other marijuana. They saw no 24 paraphernalia. They saw no drying room. That's 25 when you take the marijuana and dry it and so KANABAY COURT REPORTERS 181 1 you can smoke it. They say saw no dried 2 marijuana. They saw nothing else in that house, 3 but on the back lanai, accessible to anybody who 4 would care to bring it, was that bush you saw 5 coming out of that house. 6 The significance of that tape is that 7 police didn't make that tape. Raftery was 8 sitting outside that house. Let me tell you, 9 the police don't tell you when they are going to 10 execute a warrant. They don't tell you. For 11 their own security's sake they never tell you. 12 He was out there for one purpose. When you 13 watch that video being done he zoomed in on 14 Jesse. He had to get something impeachable. He 15 had to get Jesse with bracelets on, brought 16 Deneen when she was crying back -- got her on 17 there. Gaston and his reports even chronical 18 that Deneen went up to Jesse crying and he got 19 every minute of it from across the street. 20 And did you hear that cell phone go off? 21 Did you hear that cell phone? That was 22 Raftery's cell phone. And I don't know if you 23 remember, you heard what he said. He said two 24 words "Not now. Not now." 25 And if you watch this thing, which I'm not KANABAY COURT REPORTERS 182 1 going to bore you with it, but at the very 2 beginning you'll go minute after minute after 3 minute after minute until you'll get as tired as 4 I am of looking at it as he's standing there 5 waiting, waiting for Jesse to come out. 6 If you want to take the time in that jury 7 room, you watch how long he waited to get that 8 footage of what this trial is all about. It 9 ain't about this. It's about that. And it's 10 about that from beginning to end. 11 Betty Davis once said in an old movie, 12 fasten your seat belts, you're in for a rough 13 ride when we start the trial. Thank you. 14 THE COURT: Thank you, Mr. DeVlaming. 15 16 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 17 END OF VOLUME I 18 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 183 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 II ) 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 23, 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 184 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 185 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 186 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 187 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 188 1 P-R-O-C-E-E-D-I-N-G-S C-O-N-T-I-N-U-E-D 2 THE COURT: State, prepared to call 3 your first witness? 4 MS. WARDELL: Thank you, Judge. Judge 5 the State calls Detective Crosby. 6 * * * * * * * * * * * * * * * * * * * * * * * * 7 Whereupon, 8 HOWARD CROSBY, 9 the State's witness herein, being first duly 10 sworn upon oath, was questioned and testifies as 11 follows: 12 THE COURT: Please proceed. 13 MS. WARDELL: Thank you. 14 DIRECT EXAMINATION 15 BY MS. WARDELL: 16 Q If you could please turn to the jury and 17 introduce yourself by stating your name and how you 18 are currently employed. 19 A Howard Crosby. Sergeant. I supervise the 20 afternoon shift parole for Largo Police Department. 21 Q And how long have you been with Largo? 22 A Since 1981. 23 Q Was that all, what, nineteen, twenty years? 24 A Almost. 25 Q And if you could talk to the jury a little KANABAY COURT REPORTERS 189 1 bit about your current duties and responsibilities. 2 A My current duties are to supervise patrol 3 units on afternoon shift. I was previously assigned 4 to the narcotics unit back in 1994. 5 Q How long were you in the narcotics unit? 6 A About six years. 7 Q From 1994 until you took over patrol? 8 A Yes. 9 Q And when did you switch jobs? 10 A I believe it was in September. 11 Q Of 2000? 12 A Yes. 13 Q Okay. And I want to take you back to 14 April of 2000 and have you talk to the jurors about 15 your assignments and responsibilities while a member 16 of the narcotics force. 17 A At that time I was assigned to the county 18 wide narcotics unit. I was also assigned to the high 19 intensive drug trafficking unit over there. I had 20 attended an eighty-hour class at St. Pete Junior 21 College on basic narcotics, and I also attended a 22 four hundred-hour narcotics handler, K-9 handler, 23 class prior to that. From there I went to the drug 24 enforcement administration school, which is an 25 eighty-hour course, and another advanced eighty KANABAY COURT REPORTERS 190 1 hours. 2 Q During this six-year tenure in the 3 narcotics unit, would you use your training or 4 experience in each and every case that you do? 5 A Yes. 6 Q And the more cases you did, the more you 7 learned and the more you became experienced? 8 A Yes. 9 Q And is it fair to say that you have seen 10 various drugs as a matter of routine as part of your 11 job? 12 A Yes. 13 Q Specifically with regards to marijuana, is 14 marijuana something you can recognize on sight? 15 A Yes. 16 Q Both in plant form and in ground up form, 17 if you will? 18 A Yes. 19 Q You've seen it in plant form? 20 A Yes. 21 Q But you've also seen it in it's form where 22 it's ready to be smoked? 23 A Right. 24 Q Are there any other forms that you can talk 25 to the jury about? KANABAY COURT REPORTERS 191 1 A For marijuana? 2 Q Right. 3 A I've seen it in pipes, in marijuana 4 cigarettes, in plants, plant material. 5 Q Lots of ways marijuana can look? 6 A Right. 7 Q And you're familiar with all of them? 8 A Yes. 9 Q Is that a part of your training and 10 experience that allows you to have this familiarity? 11 A Yes, it is. 12 Q Is it common while in the narcotics unit to 13 utilize an informant? 14 A Yes. 15 Q Can you talk to the jury about what an 16 informant is and how it is you come into contact with 17 one and how you turn out utilizing one. 18 A Usually informants come to us. Sometimes 19 we find them. The main use for the informants are to 20 help us gain access to the drug dealers or people 21 possessing narcotics. What we normally use them for 22 is either to do the buys for us, to get us actually 23 introduced to people. 24 Q They're the go-between, if you will? 25 A Yes. KANABAY COURT REPORTERS 192 1 Q In this particular case with regards to 2 Jesse Prince, was a confidential informant utilized? 3 A Yes, he was. 4 Q Okay. Was that informant actually assigned 5 a specific number? 6 A Yes. 7 Q Is that just routine policy so you can keep 8 track of who's who? 9 A That's so when we write the reports we can 10 refer to the informant as a number and not as their 11 name. 12 Q That's for the protection of the informant? 13 A Right. 14 Q And that's common and routine to do that? 15 A Very. 16 Q And in this particular case, do you recall 17 the number that was assigned to this informant? 18 A The number was 273. 19 Q And was there actually a fake name that 20 went along with NO. 273? 21 A Well, the informant had -- his name was 22 Trinidad. 23 Q Do you recall the first name that he used? 24 A Rinzy. 25 Q And that wasn't his real name? KANABAY COURT REPORTERS 193 1 A No. 2 Q That was a stage name for the 3 investigation? 4 A Correct. 5 Q And that name came to you, you didn't 6 create that name? 7 A No, I didn't. 8 Q He was already using that when he came to 9 you? 10 A Yes. 11 Q Okay. Now, is there a certain 12 conversation, if you will, that you're going to have 13 with an informant before you as law enforcement would 14 utilize one? 15 A Yes. After we debrief the informants, find 16 out what information they have, we go over the basic 17 rules of what they're to do, what they're not to do. 18 What it comes down to is they act with us. They 19 don't act on their own, and they don't go off without 20 us being there. 21 Q Basically it's your game, and they're 22 supposed to play by your rules? 23 A Exactly. 24 Q And you tell these rules up front? 25 A Yes. KANABAY COURT REPORTERS 194 1 Q And you hope that they follow these rules? 2 A Right. 3 MS. WARDELL: Judge, may I approach the 4 witness? 5 THE COURT: You may. 6 BY MS. WARDELL: 7 Q I'm showing you what's been previously 8 marked as State's Exhibit NO. 1 for identification 9 purposes, and I would ask you to take a look at it 10 and tell me whether or not you recognize what that 11 is. 12 A This is a CI form that's labeled 13 "Investigative Assistance Agreement." We go over 14 each statement and have the informant sign and sign 15 the bottom and eyewitness the signature. It gives 16 the rules. 17 Q I'm sorry. That's the actual form that was 18 used in this case as relates to CI NO 273. 19 A 273? 20 A Correct. 21 Q And that would be the informant's initials 22 next to each rule that's outlined to him? 23 A Yes. 24 Q And you were present when he went over that 25 form? KANABAY COURT REPORTERS 195 1 A I went over the form with him. 2 Q Okay. Even better. And you kept that form 3 in a business records that's maintained down in Largo 4 Police Department? 5 A Well, this goes into the CI file and it's 6 kept under lock and key. 7 Q And although that's an original -- I mean, 8 excuse me, that's a copy, there's an original that's 9 going to be maintained in Largo's files? 10 A Right. 11 MS. WARDELL: Judge, at this point I 12 would introduce State's Exhibit NO. 1 into 13 evidence. 14 THE COURT: Any objection? 15 MR. DEVLAMING: None. 16 THE COURT: It will be received. 17 MS. WARDELL: Permission to just 18 briefly publish to the jury? 19 THE COURT: Okay. Publish. 20 BY MS. WARDELL: 21 Q And do you recall the date that you met 22 with this informant and assigned him this number? 23 A It's written on bottom. It's 4/24/2000. 24 Q Now, as part of the debriefing that you 25 mentioned, is that basically when the CI tells you KANABAY COURT REPORTERS 196 1 what he already knows so that you'll kind of know 2 what you're fixing to get into? 3 A Correct. 4 Q And was there actually specifically a 5 prearranged date and location that you knew it was 6 okay for you to go to the defendant's house along 7 with the CI? 8 A After talking to the informant, he told me 9 that specific date that he was invited over to the 10 defendant's house. 11 Q And you were to tag along? 12 A That he was going to bring a friend, which 13 would be me. 14 Q And tell the jury what your story, if you 15 will, was. In other words, who were you to be when 16 you got to his house? 17 A I was the informant's friend from up north, 18 and the informant became friends with Mr. Prince and 19 said that he was going bring his, which is me, friend 20 over to his house, so -- since I'm down from up 21 north. 22 Q So Mr. Prince was aware ahead of time that 23 Mitch, or whoever you were, was going to come to his 24 home? 25 A I assume so. The informant told me that he KANABAY COURT REPORTERS 197 1 knew a friend was coming. 2 Q And what was your name in this scenario? 3 A Mitch. 4 Q Mitch. Okay. Did you actually respond to 5 Mr. Prince's home? 6 A Yes. 7 Q Speaking of Mr. Prince, do you see him in 8 the courtroom today? 9 A Yes, I do. 10 Q Could you please point to him and describe 11 an article of clothing? 12 A He's sitting right over there with a dark 13 suit and white shirt on. 14 MR. DEVLAMING: Judge, we'll stipulate 15 to the identity of Mr. Prince to my right. 16 THE COURT: So stipulated. 17 BY MS. WARDELL: 18 Q So the few times that I've said the 19 defendant or Mr. Prince, that's to whom you're 20 referring? 21 A Yes, ma'am. 22 Q And did you actually respond to his 23 residence? 24 A Yes, we did. 25 Q And do you recall where? KANABAY COURT REPORTERS 198 1 A 1949 Belleair Road. 2 Q What city? 3 A That's Largo, Clearwater mailing address. 4 Q In what county? 5 A Pinellas. 6 Q Could you speak up a little bit louder? 7 I'm having a hard time hearing you. 8 And would this have been your first 9 personal contact with Mr. Prince? 10 A Yes, it was. 11 Q Could you take a minute and describe to the 12 jury what happened as you approached the door and 13 what happened once inside? 14 A Both the CI and I, we drove over to 15 Mr. Prince's residence and went to his front door and 16 knocked on the door. The -- a black female answered 17 the door, who was later identified as Deneen 18 Phillips, and let us inside the house. 19 Q Were you introduced to Mr. Prince? 20 A Yes. 21 Q And how so? 22 A The CI introduced me as Mitch, and we went 23 into the room to the left of the door. 24 Q Would that have been the computer room? 25 A Well, there was a computer in the room, KANABAY COURT REPORTERS 199 1 yes. 2 Q Okay. And tell us what happened inside 3 that room. 4 A Inside the room Mr. Prince was working on a 5 computer. We sat down, had a conversation. He asked 6 us if we wanted a beer. We said yes. He went up and 7 got us each a beer, himself and Miss Phillips a beer. 8 We continued to talk, and he then asked us if we 9 wanted to smoke, and we said yes. 10 Q You said he asked if you wanted a, quote, 11 smoke. What did you take that to mean? 12 A Smoking cannabis. 13 Q Marijuana? 14 A Marijuana. 15 Q Not a cigarette? 16 A No. 17 Q And were you somewhat surprised or taken 18 aback, if you will, that that was mentioned so soon 19 in that context? 20 A Yes, because it was my first time even 21 meeting him. I didn't think that we would get that 22 far that quick. 23 Q And it was Mr. Prince that used the words 24 "a smoke" first? 25 A Yes. KANABAY COURT REPORTERS 200 1 Q So the first mention of marijuana at this 2 visit comes from Mr. Prince's mouth, correct? 3 A Correct. 4 Q And did you agree to a smoke? 5 A Yes, we did. 6 Q And why did you agree to that? 7 A To maintain my undercover status. 8 Q And to state the obvious, you weren't 9 dressed in uniform, were you? 10 A No, I was not. 11 Q How were you dressed? 12 A I believe I was in shorts and a T-shirt. 13 Q Casual clothes? 14 A Yes. 15 Q Was marijuana actually produced? 16 A Yes, it was. 17 Q How so? 18 A Miss Phillips rolled a cigarette, a 19 marijuana cigarette, lit the cigarette and passed it 20 to Mr. Prince. Mr. Prince then passed it to me, and 21 I passed it to the informant, and it went back to 22 Miss Phillips again. 23 Q On May 7th of 2000, you personally observed 24 Mr. Prince in possession of a marijuana cigarette? 25 A Yes. KANABAY COURT REPORTERS 201 1 Q Did you recognize that marijuana cigarette 2 to be that? 3 A That and the odor. 4 Q You recognized the odor? 5 A Yes. 6 Q You're familiar with the odor of a 7 marijuana cigarette? 8 A Yes. 9 Q Is there any doubt in your mind that what 10 was passed that day in that room was a marijuana 11 cigarette? 12 A No doubt. 13 Q And is there something called simulation in 14 the field of uncover work? 15 A Yes, there is. 16 Q Could you tell the jury what that means? 17 A Where we actually don't smoke the 18 cigarette. We simulate smoking the cigarette. And 19 then I passed it to the informant. 20 Q Did those around you close to you think you 21 were smoking it but you have a technique to where 22 you're not? 23 A That's correct. 24 Q And was it Mr. Prince personally who handed 25 you the joint? KANABAY COURT REPORTERS 202 1 A Yes, he did. 2 Q Now, during this joint passing, if you 3 will, did the conversation of plants come up? 4 A The -- when Miss Phillips left the room to 5 get the marijuana -- 6 THE COURT: I'm -- hold up for one 7 second. Can you all here okay? Is there 8 anybody who's having any trouble hearing? 9 Okay. Thank you. Please proceed. 10 THE WITNESS: When she went to the get 11 the marijuana, we -- Mr. Prince stayed in 12 the room with us, so it was the three of us 13 in the room together and the topic of 14 marijuana plants came up, and he said that 15 they were growing and they're getting 16 bigger. And Miss Phillips overheard that 17 conversation when she came back. 18 BY MS. WARDELL: 19 Q Was there any conversation with regards to 20 whether the children in the home knew of the presence 21 of the marijuana plants? 22 MR. DEVLAMING: Objection unless she 23 lays a predicate by the client and not by 24 another hearsay source. 25 THE COURT: I'll sustain the objection. KANABAY COURT REPORTERS 203 1 MS. WARDELL: As to that reason? 2 THE COURT: You need to lay the 3 predicate as who it is that's going to be 4 answering -- who you're talking about as it 5 relates to the conversation. 6 BY MS. WARDELL: 7 Q During the course of the conversation, was 8 a comment made with regards to whether the children 9 knew of the presence of the marijuana? 10 MR. DEVLAMING: Objection. Same 11 objection, Judge. 12 THE COURT: Comment by whom? 13 MS. WARDELL: Well, first I need to lay 14 the comment, then by whom. 15 THE COURT: Okay. 16 BY MS. WARDELL: 17 Q Was, in fact, a comment made? 18 A Yes. 19 Q And who, in fact, made it? 20 A Deneen Phillips. 21 MR. DEVLAMING: Objection, same. 22 THE COURT: Sustained. 23 BY MS. WARDELL: 24 Q Did Mr. Prince brag about the marijuana 25 plants getting bigger? KANABAY COURT REPORTERS 204 1 A Yes, he did. 2 Q Did this indicate to you that he had 3 knowledge that marijuana plants existed on his 4 property? 5 A Yes. 6 Q Did he also brag the marijuana plants were, 7 quote, doing fine? 8 A Yes, he did. 9 Q And did this also indicate to you he had 10 knowledge that marijuana plants were on his property? 11 A Yes. 12 Q Did there come a point in time when you 13 were shown around the residence? 14 A Yes, we were given a tour of the house. 15 Q Were you aware that the Princes -- excuse 16 me, Mr. Prince and Miss Phillips had moved into this 17 home in the late part of February? 18 A That's what I -- I wasn't for sure, but 19 that's what I had heard. 20 Q It was a new house to them? 21 A Right. 22 Q And so talk to the jury, please, about 23 being shown around and where you went. 24 A Miss Phillips gave us a tour of the house, 25 walked us through the whole house showing us the KANABAY COURT REPORTERS 205 1 different bedrooms, and we went out to the back porch 2 area, which is a pool area, a large pool area that's 3 enclosed by a screen. 4 Q And how do you enter into the pool area 5 from the home? 6 A We went through the kitchen and then out 7 some sliding glass doors. 8 Q Sliding glass doors from a kitchen area? 9 A Kitchen/living room area. It was an open 10 area. 11 Q There's more than one way to get to the 12 pool from the inside of the house? 13 A I believe so. We went through the same 14 area. 15 Q So once into the pool area, what did you 16 observe? 17 A The -- there were several pots with 18 marijuana plants in the pots, planters. 19 Q And tell us how it was you were able to 20 recognize these plants as marijuana plants. 21 A Miss Phillips pointed the marijuana plants 22 out to me, and, of course, I recognized them as being 23 marijuana plants. And she pointed out about five -- 24 about five different areas where the plants were, 25 when Mr. Prince came out and pointed an additional KANABAY COURT REPORTERS 206 1 one out that was smaller to me. 2 Q And Mr. Prince personally pointed out one 3 another marijuana plant to you? 4 A Yes. 5 Q Did this indicate to you that he had 6 knowledge that marijuana plants were on his property? 7 A Yes. 8 Q And were they basically in arms reach of 9 Mr. Prince? 10 A Well, they were in the enclosed area of 11 the -- of his back porch. 12 Q And while walking around and pointing them 13 out, they were within arms distance? 14 A Right. Well, yes. 15 Q Now, was there a conversation about how to 16 keep the plants healthy? 17 A I asked Miss Phillips how to keep the 18 plants healthy. She said -- 19 MR. DEVLAMING: Objection, Judge. 20 Hearsay. 21 THE COURT: Did you wish to respond to 22 that objection? 23 MS. WARDELL: It's going to be a 24 statement that's against interest of the 25 defendant. KANABAY COURT REPORTERS 207 1 THE COURT: Overruled. Well -- 2 MS. WARDELL: And as corroborated, if 3 necessary, by the other party. 4 THE COURT: Okay. You said a statement 5 against the interest of the defendant. I'll 6 overrule the objection on statement against 7 interest. Proceed. 8 BY MS. WARDELL: 9 Q I'll reask it this way. Was there an 10 indication in that conversation that Mr. Prince 11 participated in keeping those plants healthy by 12 watering them? 13 MR. DEVLAMING: Objection, Judge. We 14 need the predicate as to who's making these 15 statements. I need to cross-examine the 16 declarant. 17 MS. WARDELL: I'll produce the 18 declarant to tie it up. 19 THE COURT: Please do. Sustained. 20 Please lay the predicate. 21 MS. WARDELL: Well, I'm -- 22 THE COURT: Approach the bench. 23 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 24 THE COURT: What I am going to ask you 25 to do, and this is what Mr. DeVlaming is KANABAY COURT REPORTERS 208 1 objecting to, is that you -- I guess I 2 understand what you're doing. You're just 3 asking was there a statement, and then after 4 that you are going to ask who made the 5 statement. Is that it? 6 MS. WARDELL: Yeah. And well, the 7 statements are coming from the girlfriend, 8 and I'll bring in the girlfriend to say the 9 same ones. 10 THE COURT: See, the thing I'm trying 11 to figure out is and the reason I keep 12 getting tossed off is you keep asking was 13 there any statement, but it's obviously an 14 objectionable statement unless there is a 15 exception to the hearsay rule if 16 Miss Phillips made the statement. 17 MS. WARDELL: Right. 18 THE COURT: But it's not an 19 objectionable statement. It is an admission 20 if the defendant made it. So what 21 Mr. DeVlaming is objecting to is your 22 failure to establish who made the statement 23 before you ask the question. 24 And what I get confused about, and I think 25 I have to sustain the objection, is that you KANABAY COURT REPORTERS 209 1 haven't laid the predicate as to did 2 Mr. so-and-so make a statement regarding this? 3 What was that statement? 4 MS. WARDELL: Okay. All right. 5 Because my thinking is that Miss Phillips, 6 when I call her, made deny making that 7 statement. So I need to ask this officer 8 now did she say it. I guess I'm bringing 9 the cart before the horse. 10 THE COURT: You are. 11 MS. WARDELL: But the bottom line is in 12 opening statement Mr. DeVlaming gave an 13 entire hearsay conversation at that lunch. 14 I mean, are you going -- are the same rules 15 going to apply that now nothing that was 16 said at that lunch is going to come in? 17 THE COURT: Unless you object, how can 18 I rule on it? 19 MS. WARDELL: Well, you know, I think, 20 you know -- 21 MR. DEVLAMING: Well, what you need to 22 do -- here's the thing, if -- you know 23 Miss Phillips can be making here a statement 24 against interest. I mean, you've said that 25 and I overruled the objection when you said KANABAY COURT REPORTERS 210 1 that. But you still have to lay the 2 predicate before -- 3 MS. WARDELL: All right. Then I'll do 4 it the other way because Miss Phillips' 5 statement against interest would go against 6 this defendant because they were 7 cohabitating in the house. 8 THE COURT: It's a statement against 9 interest. It doesn't have to do with who 10 the defendant is. As long as it's against 11 pecuniary interest, it comes in. 12 MS. WARDELL: All right. 13 THE COURT: Overruled. 14 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 15 THE COURT: Please proceed. 16 MS. WARDELL: Thank you. 17 BY MS. WARDELL: 18 Q You mentioned Miss Phillips earlier, and 19 what was your understanding of her relationship to 20 the defendant? 21 A She was living with him. 22 Q As a girlfriend or a fiancee? 23 A Girlfriend, fiancee. 24 Q Did Miss Phillips make statements to you on 25 the pool patio area with regards to how to keep those KANABAY COURT REPORTERS 211 1 plants? 2 MR. DEVLAMING: Objection. Hearsay. 3 THE COURT: And your response would be? 4 MS. WARDELL: Statement against 5 interest. 6 THE COURT: Overruled. 7 THE WITNESS: Yes. When she was asked 8 she said that, her and Jesse, it does not 9 take much to grow these plants and that they 10 just need water and sunlight. 11 BY MS. WARDELL: 12 Q But that she and Jesse -- 13 A She and Jesse. 14 Q -- kept them healthy? 15 A Correct. 16 Q Do you recall what time you left 17 Mr. Prince's home? 18 A 1658 hours. 19 Q When is your next involvement with 20 Mr. Prince in this investigation? 21 A The August, August 6. 22 Q And can you tell the jury the reason for 23 the time lapse between May 7 and August 6? 24 A The time lapse was I had other cases going. 25 I believe I was even out on knee surgery also, so KANABAY COURT REPORTERS 212 1 that's why there was a time lapse. 2 Q This wasn't your only investigation? 3 A No. 4 Q This was just one of the many that you were 5 doing? 6 A Yes. 7 Q And on August 6 did you actually meet with 8 the confidential informant, the same one, 273? 9 A Yes, we did. We met at the police 10 department. 11 Q And was there already, as far as you knew, 12 a prearranged meeting or stopping by? 13 A We were going to stop by because we were 14 going on a trip. 15 Q Mr. Prince -- 16 A -- to say good bye. 17 Q Okay. And did you, in fact, do that? 18 A Yes. 19 Q And where did you respond? 20 A 1949 Belleair Road. 21 Q Do you recall what time you got there? 22 A At 10:53 a.m. 23 Q And who opened the door? 24 A At first a child opened the door, and then 25 Mr. Prince came right up after behind the child. KANABAY COURT REPORTERS 213 1 Q And what did you see when you got inside? 2 A Mr. Prince let us inside, and we went into 3 an area like a living room type area. 4 Q And from there where did you go? 5 A I saw Miss Phillips on the back porch 6 watering the plants. They had all other types of 7 plants on the back porch. And we asked if we could 8 go back out there and say hi to her. 9 Q And did you? 10 A Yes. 11 Q When you got to the screened-in area, the 12 pool area, what did you see? 13 A When I got to the pool area, we made 14 contact with Miss Phillips, talked to her, and then 15 Mr. Prince came out to us. 16 Q And when he came out, was there a reason 17 for his coming out? 18 A To talk to us. 19 Q Did he show you anything? 20 A Yes. He pointed out a pot with a small 21 plant, marijuana plant, in it. 22 Q Did you recognize it to be marijuana? 23 A Yes. 24 Q Approximately how tall was that plant? 25 A About a foot or two. Tall? Is that what KANABAY COURT REPORTERS 214 1 you said? 2 Q Yeah. How tall? If you need to refer to 3 your report -- well, let me ask this: Did you make a 4 report back when this was fresh in your mind? 5 A Yes. 6 Q Back in the -- for the first instance, the 7 May time frame, and now the August time frame? 8 A Yes, I did. 9 Q Is that because you never know when you're 10 going to get asked questions about it and it's tough 11 to remember what you did? 12 A That's true. 13 Q If you need to refer to your report at any 14 point for a specific, that's fine. Did you document 15 in your report how tall the plants were? 16 A I said in the southwest area of the 17 screened-in pool that it was approximately two to 18 three -- 19 MR. DEVLAMING: Judge, I'm going to 20 object to the reading of the report that's 21 not in evidence. 22 THE COURT: Sustained. 23 BY MS. WARDELL: 24 Q Take a minute and read it, and then once 25 your memory is refreshed, you can look up and KANABAY COURT REPORTERS 215 1 testify. 2 A About two to three feet high. Also he told 3 me he had just previously, about a month ago, pulled 4 out about fifteen other marijuana plants, and that 5 this one was -- came up, started growing on it's own, 6 and all you need to do was basically give it water 7 and sunlight and that it will grow, and that he 8 needed -- he needed more sunlight so he was going to 9 pull it out into the sun. 10 Q And he actually talked to you about how to 11 help the plant grow? 12 A Yes. 13 Q And he actually pointed that plant out to 14 you? 15 A Yes. 16 Q And did it appear to be more than one plant 17 when you saw it did? 18 A It was bushy. To me it looked like two or 19 three plants, but I didn't get close enough to see 20 the actual stalk. 21 Q The stick part of it? 22 A Right. 23 Q Okay. And you had mentioned the southwest 24 corner. Can you tell us, coming from the house out 25 to the pool, would that be to the right? KANABAY COURT REPORTERS 216 1 A To the right. 2 Q Or to the left? 3 A As you walk in from the house on the pool 4 area, it would be over to your right. 5 Q By a screen door? 6 A Yes, there is a screen door there. 7 Q Do you recall him stating, quote, let 'em 8 grow? 9 A That he was letting them grow, yes. 10 Q Did he actually talk to you about how easy 11 it was to maintain these plants? 12 A That they would grow on their own. All 13 they needed was sun and water. 14 Q Based upon your personal observations of 15 August 6th of 2000, did you assist in drafting a 16 warrant in this case? 17 A Yes, I did, for cultivation of cannabis. 18 Q And have you actually assisted in the 19 drafting of other warrants? 20 A Yes. 21 Q Do you have experience in writing warrants? 22 A Yes. 23 Q And, in this particular case, were you the 24 affiant? 25 A Yes, I was. KANABAY COURT REPORTERS 217 1 Q And that is the person that made the 2 observations and signed you name at the bottom? 3 A Right. 4 Q And took it to the judge and the judge 5 signed it? 6 A Yes. 7 Q Now, this warrant had a very limited 8 purpose, correct? 9 A Correct. 10 Q What was it you were asking to search for? 11 A For marijuana plants. 12 Q Where? 13 A Back porch. 14 Q Of this particular residence? 15 A Of 1949 Belleair Road. 16 Q And more specifically in the screened porch 17 area? 18 A The back porch, yes, screened-in pool area. 19 Q Were you actually present when the warrant 20 was executed? 21 A Yes, I was there. I didn't go inside the 22 house. 23 Q Is that a safety reason? 24 A Yeah. Because I was still undercover at 25 the time, so what I did is I drove the van and I went KANABAY COURT REPORTERS 218 1 to the side of the house, but once they made contact, 2 I went back and I did not participate in the warrant 3 at all. 4 Q You didn't want to blow you cover? 5 A Right. 6 Q Is it protocol for a tactical team to come 7 in and actually execute the warrant? 8 A Yes. All the warrants in Largo the 9 tactical team serves the warrants. 10 Q Prior to them entering the home in 11 furtherance of the warrant, had you communicated to 12 them the observations you made on August 6? 13 A Yes. Once I get the warrant, we have a 14 briefing with a tactical team. I tell them who the 15 person is, I show them pictures, and then tell them 16 what the warrant's for. I actually give the person 17 who's going to read the warrant to him, and then the 18 tactical commander goes over the tactics on how to 19 approach the house. 20 Q So they knew they were to go to the pool 21 area and look in that specific location? 22 A Right. 23 Q Now, what's the purpose in bringing an 24 entire team in? 25 A For safety and security and officer safety. KANABAY COURT REPORTERS 219 1 When you're going in someone's home, you bring as 2 many people as you can. We don't know how they're 3 going to act once we get there. 4 Q Do different officers have different 5 assignments? 6 A Yes. The main officers are going in for 7 security to handcuff the suspect, and anyone else 8 inside the residence, they're there to secure them, 9 and then we have a search team that goes in also. 10 MS. WARDELL: Judge, I don't have 11 anything further. 12 THE COURT: Okay. Before we go into 13 cross-examination, how are you all feeling? 14 Do you all need a break or can we proceed? 15 I got a break. Okay. We're going to take 16 about a fifteen-minute break at this point 17 in time, and we'll proceed right after that. 18 Okay? 19 (OUTSIDE THE PRESENCE OF THE JURY) 20 MS. WARDELL: Judge, may Mr. DeVlaming 21 and I approach? 22 THE COURT: Sure. You all come on up. 23 MS. WARDELL: We don't need the court 24 reporter. 25 (A DISCUSSION WAS HAD OFF THE RECORD) KANABAY COURT REPORTERS 220 1 (A RECESS WAS HAD) 2 THE COURT: I promise we won't start 3 without him. Somebody look out there and 4 see if he is outside. Please bring the jury 5 back. 6 THE BAILIFF: Sure. 7 MR. DEVLAMING: Your Honor, since the 8 jury is not in here, I just want to put on 9 the record that Miss Wardell and I have an 10 agreement that we'll not release any 11 witnesses without consulting each other. 12 I have had Miss Phillips available. I will 13 not release her unless Miss Wardell tells me 14 that -- I subpoenaed Officer Crosby. It's 15 possible I might have to call him back. 16 THE COURT: Okay. 17 (IN THE PRESENCE OF THE JURY) 18 THE COURT: Your Honor, the jury is in 19 the courtroom and seated. 20 THE BAILIFF: All right. 21 Mr. DeVlaming, sir, are you at this time 22 able to proceed to cross? 23 MR. DEVLAMING: Thank you. 24 CROSS-EXAMINATION 25 BY MR. DEVLAMING: KANABAY COURT REPORTERS 221 1 Q Detective Crosby, do you remember when you 2 first received information concerning this 3 investigation? 4 A Not the date, no, I don't. 5 Q Well, would it have been on or about the 6 24th of April when this man was made a CI, or would 7 it have been quite a bit before that? 8 A No. He was made a CI on the 24. 9 Q Right. When did you first become involved 10 that there was an investigation or information on -- 11 A That's the date that I'm not sure about. 12 It was probably a week, maybe two, before then. 13 Q Okay. And who called you? 14 A Brian Raftery -- Raferty. 15 Q Raftery? 16 A Raftery. 17 Q Okay. And on the basis of your call from 18 Raftery, you met with Gaston? 19 A Yes, sir. 20 Q You ultimately met with Gaston? 21 A Yes, sir. 22 Q Now, did either Raftery or Gaston discuss 23 with you what happened from February 7 until right 24 around April 24 or a week before April 24? Did they 25 say what they had been doing? KANABAY COURT REPORTERS 222 1 A That he was being surveilled. 2 Q Okay. 3 A And that the informant had met him and 4 became friends with him. 5 Q And did they say how often he was being 6 surveilled? 7 A I don't recall them saying how often, no. 8 Q Did you get the impression it was 9 regularly? 10 A Daily. 11 Q Daily? 12 A Yes. 13 Q And was the word "Church of Scientology" 14 mentioned? 15 A Yes. 16 Q And did Raftery mention that the Church of 17 Scientology had hired him as an investigator? 18 A Yes, sir. 19 Q And did he tell you that on the first 20 meeting, the first discussion with you? 21 A Yes, he did. 22 Q What did you say to him? 23 A That I wasn't real pleased with getting 24 this type of case. 25 Q Why? KANABAY COURT REPORTERS 223 1 A Because of the church being involved, and I 2 didn't want -- if they're doing that much 3 investigation on one person, then, you know, 4 something's going to have to come to me. I'm going 5 to see for myself, and not just going to take 6 someone's word for it. 7 Q You didn't feel comfortable? 8 A Correct. 9 Q Have you come to learn the parts of this 10 investigation now that you were not aware of back 11 when you were dealing with Gaston? 12 A Yes. 13 Q Would you have gotten involved in it again? 14 A Once I saw the marijuana plant, then I 15 would. Yes, I would have. 16 Q When you dealt with Gaston, was he up-front 17 with you about what he was doing in this 18 investigation? 19 A Yes. 20 Q Okay. Subsequently, did you learn that he 21 was doing things outside of this investigation and 22 the permission that Largo Police gave him? 23 A Correct. 24 Q All right. When you found out that he was 25 possessing marijuana himself? KANABAY COURT REPORTERS 224 1 A Yes. 2 Q All right. And is that against department 3 policy? 4 A Yes. 5 Q And do you discuss with him or did you 6 discuss with him back on April 24 what the rules and 7 regulations were about being a confidential informant 8 for your department? 9 A Yes, sir. 10 Q All right. And do you consider a 11 confidential informant who outside your presence 12 possesses drugs to be unlawful? 13 A Correct. 14 Q It's against the law? 15 A Yes. 16 Q Did Mr. Gaston ever turn over to you any of 17 his daily reports that he was making in this case? 18 A No. 19 Q Did you know that he was making daily 20 reports? 21 A Later on I found out that he was actually 22 making the daily logs or reports. 23 Q Okay. 24 A I would probably assume that he wrote 25 something down to give to his boss. KANABAY COURT REPORTERS 225 1 Q But you learned that reports were in 2 existence after the arrest in this case? 3 A Right. 4 Q Now, when you went to Mr. Prince's house on 5 May 7, did Rinzy Trinidad make the introduction of 6 you? 7 A Yes. 8 Q And when you were within the house of 9 Mr. Prince, did you see any pots that appeared to 10 have marijuana in them? 11 A On that date? 12 Q Yes, sir. 13 A On the back porch. 14 Q Okay. And on the back porch, were they 15 interspersed with other tropical plants? 16 A Yes. There were a lot of plants back 17 there. 18 Q And Deneen was caring to or watering those 19 plants? Did you ever see her water the plants? 20 A Yes, I did. 21 Q Okay. And was it on that date? 22 A I believe it was on the second date where I 23 actually saw her water the plants. 24 Q Were these plants interspersed among 25 tropical plants on the porch, the ones -- now I'm KANABAY COURT REPORTERS 226 1 talking about on the 7? 2 A Yes. 3 Q Were you able to see the color of the pots 4 they were in? 5 A Yes. 6 Q What color were they? 7 A On the second date? 8 Q Let's take the first date. 9 A On the first date I can't recall what color 10 the pots were. 11 Q Okay. Can you tell us whether or not on 12 the first date, that is on May 7, were any of the 13 plants that you saw there tested by a laboratory to 14 confirm that they were marijuana? 15 A No. 16 Q All right. Now let's take the second date. 17 How many pots did you see? 18 A With marijuana plants in them? 19 Q Yes, sir. 20 A One. 21 Q And what did that pot look like? 22 A I believe it was, like, just a planter, a 23 round pot. 24 Q And what color was it? 25 A It was black. KANABAY COURT REPORTERS 227 1 Q Okay. Was it larger or smaller -- 2 MR. DEVLAMING: Judge, I'm going just 3 for -- if I may do this, I'll have to have 4 the Clerk mark this as Defense 5 Exhibit NO. 1, but if I could do that in a 6 moment? 7 THE COURT: Okay. Any objection? 8 MS. WARDELL: No, sir. 9 THE COURT: Proceed. 10 BY MR. DEVLAMING: 11 Q Was it larger or smaller than this black 12 pot? 13 A I can't say for sure. I didn't -- I'm not 14 sure if it was larger or smaller. I don't think it 15 was any smaller than that. 16 Q Okay. Based upon what you saw, could this 17 have been the pot? 18 A Yeah, it could have been. 19 Q All right. And on the second visit which 20 led to the warrant in this case, it was your opinion 21 that the marijuana -- that a plant that was growing 22 out of a black pot was the one that you ended up 23 getting a warrant for the search of Mr. Prince's 24 residence? 25 MS. WARDELL: Judge, I would object. KANABAY COURT REPORTERS 228 1 The officer wasn't present when the actual 2 marijuana was seized from the pool. That 3 would be outside of his knowledge as to 4 whether the marijuana that was seized was 5 actually the plant that he saw the day 6 before. 7 MR. DEVLAMING: Well, I'll rephrase it, 8 Judge. 9 THE COURT: Rephrase. 10 MR. DEVLAMING: Okay. 11 BY MR. DEVLAMING: 12 Q You saw what appeared to be a marijuana 13 plant or maybe plants, you weren't sure of the number 14 of stalks, in a black pot. Was it that description 15 that let to you to get a warrant for the search of 16 the house? 17 A What led me to get a warrant was the 18 marijuana itself, not the pot that it was in. 19 Q Well, of course. Well, of course. The 20 plant that you saw growing in the black planter? 21 A Correct. 22 Q So you were able to see that, view it, and 23 then you went and got the warrant, correct? 24 A Correct. 25 Q All right. And so we're talking about then KANABAY COURT REPORTERS 229 1 from roughly August 6, which is when you and Gaston 2 went over, and then until the 11th, when the actual 3 search took place and the warrant was issued, 4 correct? 5 A Correct. 6 Q How long did it take to get a warrant? 7 A I can probably have one drafted -- it 8 depends on the circumstances. If I -- 9 Q Okay. Tell you what. Let me help you here 10 then because the question was sloppy. What I meant 11 was from the time that you leave the house and you're 12 going to have to draft what the house looks like, the 13 affidavit for search warrant and the rereading it, 14 the drafting it, the approval by the prosecutor and 15 seeing the judge, you know, until you walk away with 16 the judge's signature, beginning to end, roughly how 17 long does it take in this case? 18 A Probably about a day. 19 Q Okay. A full -- a full working day? 20 A By the time you draw it and find the judge 21 to sign it, yes. 22 Q Okay. Have you ever gotten a warrant for 23 marijuana plant before? 24 MS. WARDELL: Objection, Judge. 25 Relevancy. KANABAY COURT REPORTERS 230 1 THE COURT: Overruled. 2 THE WITNESS: For a marijuana plant? 3 MR. DEVLAMING: Yes, sir. 4 THE WITNESS: No. 5 BY MR. DEVLAMING: 6 Q You talked about conversations that Dee was 7 having and Jesse was having. At any time during this 8 investigation when you were present were there any 9 type of body bugs or recording devices used to 10 preserve conversation? 11 A No. 12 Q Okay. Was there ever any kind of 13 transmitting device used? 14 A Yes. 15 Q All right. And who wore the transmitting 16 device? 17 A I did. 18 Q Okay. And where was it transmitted to and 19 on what date? 20 A The second time we were there to another 21 unit on the street. I don't know where that unit was 22 though. Probably down the block. 23 Q And sitting in an undercover car of some 24 kind? 25 A Right. KANABAY COURT REPORTERS 231 1 Q And do they have the capability of 2 recording what is going on in this house and what is 3 being said? 4 A Yes, we have the capability of recording. 5 Q And can you tell me whether anything was 6 recorded concerning the discussions had inside 7 Mr. Prince's home? 8 A No. 9 Q It was not, or you can't tell me? 10 A No, it was not. 11 Q It was not recorded, or it was recorded but 12 it's -- 13 A No. Okay. It was recorded, but there 14 was -- it was -- it was so broken up that you 15 couldn't get anything from the recording. 16 Q Okay. Who was on the other end that did 17 the recording? 18 A Officer Desgardens. 19 Q Okay. Did Officer Desgardens ever take 20 that recording to try to have it, I guess, cleaned up 21 or whatever they call it? 22 A I don't believe so. 23 Q Now, on the second visit, Mister -- I'll 24 call him Trinidad, but it was Gaston/Trinidad. 25 A Okay. KANABAY COURT REPORTERS 232 1 Q Trinidad, did he ever try to buy marijuana 2 from Mr. Prince? 3 A In my presence? 4 Q Yes, sir. 5 A We had to ask if he had any, and he said 6 no. 7 Q Did Trinidad then say, "Listen, we're going 8 to the Keys. I'd be even willing to pay you for it"? 9 A Well, that's what I was saying. We tried 10 to see if we could get any marijuana from him, but he 11 had none to give to us. 12 Q On the first visit you said Dee showed you 13 around the house? 14 A Yes. 15 Q Okay. Did you ever on that visit or on the 16 second visit or at any time inside Mr. Prince's 17 residence see any marijuana that was being cured? 18 You know what I mean by being cured? 19 A Yes. 20 Q Did you ever see it? 21 A No. 22 Q Okay. Did you ever see any leaves being 23 laid out to be dried? 24 A No. 25 Q Did you ever see any drying lamps? Those KANABAY COURT REPORTERS 233 1 are the heat lamps. 2 A No. 3 Q Did you ever see any type of paraphernalia 4 that would lead you to believe that the plants that 5 were outside were in any way being processed -- 6 A No. 7 Q -- for use. Now, you said that Mr. Prince 8 made a comment that he had pulled out about fifteen 9 plants? 10 A Yes, sir. 11 Q Would that have been big ones or little 12 ones, or did he not say? 13 A He did not say. 14 Q But he said that after he pulled these 15 plants out that one plant remained -- or, excuse me, 16 grew in it's place? Is that what he said? 17 A Right. 18 Q Did he ever say that he planted any 19 marijuana? 20 A No. 21 Q Did he ever tell you that he fertilized 22 marijuana? 23 A No. 24 Q Did you ever see him watering marijuana? 25 A No. KANABAY COURT REPORTERS 234 1 Q Now, I think you had some knee surgery 2 during some of this time? 3 A I believe it was during that time. 4 Q Okay. Would it have been somewhere between 5 May 7 and August 6? 6 A Yes. 7 Q Okay. Did you know what Gaston was doing, 8 now that he had become a confidential informant 9 concerning this case, from May 7 to August 6? Did he 10 give you any briefings on what he was doing during 11 that period of time? 12 A Other than just phone conversations saying 13 that, you know, he is still around, no. 14 Q Okay. Did he tell you that he had been 15 inside the Prince home? 16 A No. 17 Q Did he tell you that he had smoked or used 18 marijuana? 19 A No. 20 Q Had he ever used Mr. Gaston/Trinidad 21 before? Had he ever been a confidential informant 22 before? 23 A For me, no. 24 Q Ever used him since? 25 A No. KANABAY COURT REPORTERS 235 1 Q Would you? 2 A No. 3 Q You weren't sure, Detective Crosby, but I 4 think you said that you believe that Mr. Prince and 5 his girlfriend moved into this house or bought the 6 house sometime in February? 7 A I wasn't -- no, I don't -- 8 Q You're not sure? 9 A No. 10 Q Okay. But were you -- I think Miss Wardell 11 asked you whether you were knowledgeable of the fact 12 that he was a recent owner of this particular 13 residence. 14 A I had been told, but I didn't have -- I 15 didn't know for sure. 16 Q Okay. And you've been to the residence? 17 A Three times. 18 Q Okay. Can you get to the back lanai from 19 the street without having to go through a gate? If 20 you need -- want me to show you pictures to help you? 21 A Yeah. I know there is a screen door on the 22 west side. 23 Q Okay. If you're standing on the street, 24 can you walk back to the back? 25 A I believe so. I think there's a fence KANABAY COURT REPORTERS 236 1 there, but I don't know if it is his fence or not. 2 Q I'm going to show you what in a moment is 3 going to be marked Defense Exhibit NO. 2(A-I) for 4 identification, if I may your Honor. 5 THE COURT: Please. Proceed. 6 BY MR. DEVLAMING: 7 Q And show you A and B and see if this helps 8 refresh your recollection. Are those two different 9 views of this home? One looking towards street and 10 one looking away from the street, to help you. 11 A Yes. But -- yes. I don't know what side. 12 I don't know what side of the house this is on. 13 Q Okay. But is that Mr. Prince's house? 14 A I can't say for sure. I don't have the 15 address here. 16 Q Well, if you don't know, you don't know. 17 A No, not from just this. 18 Q All right. Then let me ask you this. Can 19 you -- you can get to the back of his house from the 20 street without going through a gate, correct? At 21 least on one side of the house, correct? 22 A I believe so. The stockade fence I believe 23 it is -- I'm not sure, but I think it's the 24 neighbor's fence. 25 Q Okay. Which runs the property line? KANABAY COURT REPORTERS 237 1 A Right. 2 Q All right. So if you go walk from the 3 street back to the lanai, there's a screened-in porch 4 area in the back of the house? 5 A A pool area. 6 Q Pool area. Do you know whether the screen 7 is capable of being locked? 8 A I don't know. 9 Q All right. Do you know whether there was 10 any disrepair to the screen? 11 A I don't recall. 12 Q Okay. Do you know whether or not that is 13 subject to a security system at all? 14 A No. 15 Q Okay. But these plants were inside this 16 screened-in area, not inside the house proper, 17 correct? 18 A Correct. 19 Q All right. If no one was home, could you 20 have gone, without going over any fence, to the back 21 property of Jesse Prince and Dee Phillips? 22 A Yes. 23 MS. WARDELL: I'm sorry. I missed 24 that. Can you repeat that? 25 MR. DEVLAMING: Yes. I asked him KANABAY COURT REPORTERS 238 1 whether or not if nobody was home if he 2 could go from the street to the back of the 3 property without going over or through any 4 fence. 5 THE WITNESS: Except for the screen 6 area, yes. 7 BY MR. DEVLAMING: 8 Q During the course of your investigation, 9 which I suppose is when you first became involved 10 about a week before April 24 or thereabouts -- I'm 11 not going to hold you to dates -- up until the very 12 end April, May, June, July, August, so that's four 13 months, were you getting calls from Brian Raftery? 14 A Yes. 15 Q He wanted to know the status of the 16 investigation? 17 A Yes, sir. 18 Q After the arrest did you get calls from 19 Brian Raftery? 20 A Yes. 21 Q Did he want additional charges other than 22 cultivation brought against Jesse? 23 A They were mentioned. 24 Q Okay. He wanted child abuse charges? 25 A Yes. KANABAY COURT REPORTERS 239 1 Q Possession of drugs within a thousand feet 2 of a school? 3 A Yes. 4 Q What did you tell him? 5 A No. 6 Q Did you tell him it was your investigation, 7 not his? 8 A Correct. 9 Q Did you ever ask him why he wanted you to 10 load up on the charges? 11 A No. 12 Q To your knowledge, Officer Crosby, was any 13 substance tested by a laboratory other than that what 14 was taken on the 11th of April? 15 A No. 16 MR. DEVLAMING: Judge, if I could have 17 one moment, I think I'm almost done. 18 THE COURT: Okay. 19 BY MR. DEVLAMING: 20 Q So if I understand correctly, Officer, the 21 first time you went, you saw what looked like more 22 than one plant, correct? It looked like more than 23 one plant? 24 A Yes. 25 Q Jesse makes some comment to you he had KANABAY COURT REPORTERS 240 1 pulled out some plants and another one grew in its 2 place, correct? 3 A Correct. 4 Q Then on the second time you came, there was 5 only one pot? 6 A Well, the statement was made on the second 7 time. 8 Q I'm sorry? 9 A That statement was made on the second time. 10 Q That he had already pulled them out? 11 A Right. 12 Q Okay. And then on the second time there 13 was the one singular plant left? 14 A Yes. It was bushy and I thought it was 15 several. 16 MR. DEVLAMING: Judge, I believe that's 17 all the questions I have. 18 THE COURT: Thank you, Mr. DeVlaming. 19 Miss Wardell, do you have any redirect? 20 MS. WARDELL: Yes, your Honor. 21 THE COURT: Please proceed. 22 REDIRECT EXAMINATION 23 BY MS. WARDELL: 24 Q I just want to clear something up first. 25 On my direct I referred to the informant as the KANABAY COURT REPORTERS 241 1 NO. 273, and during cross-examination Mr. DeVlaming 2 referred to a Gaston. Is NO. 273 and Gaston one in 3 the same? 4 A Yes. 5 Q Also known as this Trinidad? 6 A Yes. 7 Q Just to make sure everyone knows we're 8 talking about the same person, 273 is Gaston, is 9 Trinidad? 10 A Correct. 11 Q Okay. And with regards to Raftery wanting 12 you to come up with a child abuse charge, that's 13 because the indication was children were present in 14 the home while marijuana was there, correct? 15 A Correct. 16 Q That was the rationalization? 17 A Right. 18 Q The children were around marijuana when it 19 was being smoked? 20 A That they were present in the home, yes. 21 Q Okay. And as far as the school charge, 22 that's because the Prince's home was, in fact, within 23 a thousand feet of a Montessori school? 24 A I don't know if it was within a thousand 25 feet. KANABAY COURT REPORTERS 242 1 Q That's what Mr. Raftery believed? 2 A Correct. 3 Q And he wanted you to look into that? 4 A Correct. 5 Q And you made a determination that that, 6 although it may, in fact, be true, it wasn't 7 something that was justified under these 8 circumstances? 9 A Yes. 10 Q And so you quelled that? 11 A Right. 12 Q With regards to whether or not you saw 13 Mr. Prince fertilize these marijuana plants, isn't it 14 true he said to you they only needed sun and water? 15 A Correct. 16 Q And did you see plants in the sun? 17 A Yes. 18 Q And you did see Miss Phillips watering 19 them? 20 A She was watering the plants. I didn't see 21 her specifically watering that one. 22 Q You saw her out back with water. 23 A Correct. 24 Q Okay. And there was actually a hose hookup 25 in the porch area too, if you recall? KANABAY COURT REPORTERS 243 1 A I don't know if there was a hose hookup. 2 Q Okay. But the two things that Mr. Prince 3 said these plants needed, you witnessed, correct? 4 Sun and water? 5 A Yes. 6 Q He didn't tell you they needed fertilizer? 7 A No. 8 Q There are very easy to grow, in his words, 9 right? 10 A Correct. 11 Q And as far as whether or not the marijuana 12 plants were in the, quote, house proper, as 13 characterized by the Defense, on May 7, when the 14 joint that was smoked, that was in the house proper, 15 correct? 16 A Yes. 17 Q So you observed Mr. Prince in possession of 18 marijuana in his house proper, correct? 19 A Correct. 20 Q And you based it being marijuana on your 21 training and experience? 22 A Yes. 23 Q You recognized the odor? 24 A Yes. 25 Q In fact, you brought it to your mouth, KANABAY COURT REPORTERS 244 1 correct? 2 A Yes. 3 Q Now, you told the Defense -- actually you 4 told the jury through defense questioning that you 5 didn't really care for the source of this 6 investigation, and is that why you wanted independent 7 corroboration that a crime, in fact, was being 8 occurred? 9 A Yes. I wanted to see it for myself. 10 Q And did you, in fact, satisfy yourself that 11 Mr. Prince was in possession of marijuana? 12 A Yes. 13 Q Did you, in fact, gain independent 14 corroboration that Mr. Prince possessed marijuana on 15 May 7? 16 A Yes. 17 Q And did you obtain independent 18 corroboration that Mr. Prince possessed marijuana on 19 August 6? 20 A Yes. 21 Q And although you weren't present when the 22 plant was seized on the 11th, are you satisfied from 23 independent corroboration that Mr. Prince possessed 24 marijuana on August -- 25 MR. DEVLAMING: Objection, Judge. He KANABAY COURT REPORTERS 245 1 wasn't there, Judge. He can't testify. 2 THE COURT: Sustained. 3 BY MS. WARDELL: 4 Q Based upon your knowledge and the 5 circumstances with regard to how that marijuana plant 6 was seized and where it was seized, are you satisfied 7 that there was independent corroboration that a crime 8 had occurred? 9 MR. DEVLAMING: Objection, Judge. If 10 he wasn't there, he doesn't know whether my 11 client was in possession on the day of the 12 warrant. 13 THE COURT: Sustained. 14 MS. WARDELL: May I be heard? 15 THE COURT: Yeah. 16 MS. WARDELL: This is in direct 17 response to his questions on cross that 18 opened the door to that particular question. 19 He asked him all kinds of questions about 20 what was going on outside his presence and 21 did he know or not know that it was going 22 on. 23 THE COURT: I sustain the objection 24 still because -- approach the bench. 25 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) KANABAY COURT REPORTERS 246 1 THE COURT: Even if Mr. DeVlaming did 2 do that, I don't recall that in his 3 questioning. What Mr. DeVlaming -- what the 4 defendant, I mean, witness ultimately ended 5 up testifying to is that he didn't see or in 6 any way became aware of exactly what the 7 plant was that was taken out of house on 8 that day. 9 MS. WARDELL: That's why I said based 10 on what you learned from the case as part of 11 your investigation as to what the other 12 officers took and what went on. And he said 13 he was driving the van. I mean, in other 14 words, another officer can be independent 15 corroboration. It doesn't have to be this 16 officer. 17 MR. DEVLAMING: That -- 18 MS. WARDELL: Just forget it. 19 Whatever. 20 MR. DEVLAMING: If she is withdrawing 21 it then, that's fine. 22 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 23 MS. WARDELL: May I proceed? 24 THE COURT: Please. 25 BY MS. WARDELL: KANABAY COURT REPORTERS 247 1 Q You were asked on cross-examination about 2 conduct that Mr. Gaston may have had with or without 3 your knowledge as relates to Mr. Prince? Were you 4 involved in any way in furtherance of Mr. Gaston's 5 conduct with Mr. Prince when you weren't around? 6 A No. 7 Q And do you -- do you approve at all in any 8 way of that conduct? 9 A No. 10 Q And, in fact, isn't it true that in light 11 of what we've learned about Mr. Gaston's conduct he's 12 subject to the same charges that Mr. Prince is 13 subject to with the exception of the plants? 14 A Correct. 15 Q And Mr. Gaston will be handled accordingly, 16 correct? 17 A Yes. 18 Q Now, are you also aware that Mr. Prince and 19 defense investigators met with Mr. Gaston? 20 A One more time? 21 Q Okay. Were you aware that Mr. Prince and 22 two defense retained investigators met with Gaston 23 early on after the arrest in an attempt to identify 24 him as the, quote, informant? 25 A Yes. KANABAY COURT REPORTERS 248 1 Q And are you aware that they did, in fact, 2 identify him as the informant? 3 A Yes. Mr. Prince was there, from what 4 Gaston told me. 5 Q Mr. Prince participated in that? 6 A Yes. 7 Q Okay. And at that time Mr. Gaston was a 8 witness in the case, correct? 9 A Correct. 10 Q And that certainly can be perceived as 11 being witness tampering, correct? 12 MR. DEVLAMING: Objection, Judge. That 13 elicits facts as far as how the meeting took 14 place. This witness cannot testify as to 15 whether -- 16 MS. WARDELL: It can certainly be 17 perceived that way, Judge. 18 THE COURT: Sustained. 19 MS. WARDELL: Nothing further. 20 THE COURT: Thank you. 21 MR. DEVLAMING: Two questions. 22 THE COURT: Sure. 23 RECROSS EXAMINATION 24 BY MR. DEVLAMING: 25 Q Officer, when the prosecutor asked you when KANABAY COURT REPORTERS 249 1 Raftery mentioned the Church of Scientology, you said 2 that you wanted to see for yourself. Remember saying 3 that a minute ago? 4 A About the narcotics? 5 Q When you heard that they were behind the 6 investigation, that you wanted to see for yourself, 7 correct? 8 A About the investigation, yes. 9 Q Correct. All right. Is that because you 10 didn't trust the tactics of the Church of 11 Scientology? 12 A I -- I just wanted to be able to see. I 13 mean, in all my other case I usually don't take the 14 word of a CI or someone coming off the street. 15 Q Okay. When you learned that Gaston may 16 have violated the law during the course of this 17 investigation, is it your opinion based upon what you 18 know now that he may be subject to criminal charges? 19 A He may be subject, yes. 20 Q Do you know whether he engaged in any 21 entrapment involving Mr. Prince? Do you know 22 firsthand? 23 MS. WARDELL: Objection. That calls 24 for a legal conclusion. 25 THE COURT: Sustained. KANABAY COURT REPORTERS 250 1 MR. DEVLAMING: That's all I have. 2 THE COURT: Ladies and gentlemen of the 3 jury, do you all have any questions? 4 Anybody? Don't be shy. All right. No 5 questions. May this -- sir, you may step 6 down and you are asked to remain. 7 MR. DEVLAMING: Your Honor, I will tell 8 you that I doubt that the officer -- well -- 9 THE COURT: So are we saying remain 10 under subpoena? 11 MR. DEVLAMING: Yeah. I don't mind if 12 he leaves the building. 13 THE COURT: All right. Sir, if you 14 would please make sure that we have a way to 15 contact you if we need you back. 16 THE WITNESS: Yes, sir. 17 THE COURT: All right. Thank you. 18 State, please call your next witness. 19 MS. WARDELL: The State calls 20 Officer Bruno. 21 * * * * * * * * * * * * * * * * * * * * * * * * 22 Whereupon, 23 MICHAEL BRUNO, 24 the State's witness herein, being first duly 25 sworn upon oath, was questioned and testifies as KANABAY COURT REPORTERS 251 1 follows: 2 THE COURT: Please proceed. 3 MS. WARDELL: Thank you, Judge. 4 DIRECT EXAMINATION 5 BY MS. WARDELL: 6 Q If you could please turn to the jury and 7 state your name by introducing yourself. 8 A Officer Michael Bruno from Largo Police 9 Department. 10 Q And how long have you been with Largo? 11 A I completed the police academy in December 12 of '98 and hired by Largo Police also in December. 13 Q And what are your current duties and 14 responsibilities? 15 A I'm currently assigned to the patrol 16 division of day shift of Largo Police Department. 17 Q And if you could briefly describe to the 18 jury your background, training and experience. 19 A I attend the twenty-week police academy, 20 which is a basic recruit training. I then completed 21 a twelve-week in-house training with Largo Police 22 Department, and a ten-week field training program 23 where I was assigned to a second officer and assigned 24 to patrol. 25 Q Would part of your training specifically KANABAY COURT REPORTERS 252 1 include the detection of narcotics? 2 A Yes, ma'am. I've been involved in 3 several -- many drug cases. I was also assigned 4 temporarily to a narcotics unit within the Largo 5 Police Department. 6 Q And although not assigned directly to the 7 narcotics now, on any given day at any given time you 8 could run into a narcotics investigation? 9 A Yes, ma'am, almost on a daily basis. 10 Q Routine traffic stop, marijuana in the 11 glove compartment? 12 A Yes, ma'am. 13 Q You've seen it on more than one occasion? 14 A Yes, ma'am. 15 Q You know it when you see it? 16 A Yes, ma'am. 17 Q I want to direct your attention to 18 August 11th of 2000. Did your department at that 19 time have a special task force that was designed to 20 assist in narcotic detail? 21 A Yes, ma'am. 22 Q And were you a member of that task force? 23 A Yes, ma'am, I was. 24 Q And was that your assignment during that 25 time frame? KANABAY COURT REPORTERS 253 1 A Yes, ma'am. 2 Q That was a special assignment? 3 A Yes, ma'am. 4 Q And what would this have entailed? 5 A It would have entailed doing controlled 6 buys, using confidential informants, surveillance and 7 execution of warrants. 8 Q All with narcotics as targets? 9 A Yes, ma'am. 10 Q And part of your regular duties would 11 include the discovery and seizing of narcotics where 12 appropriate? 13 A Yes, ma'am. 14 Q And on August 11, 2000, as a member of this 15 task force, did you assist in serving and executing a 16 warrant at 1949 Belleair Road here in Pinellas 17 County? 18 A Yes, ma'am, I did. 19 Q Prior to serving and executing that 20 warrant, would you have received specific training as 21 to what to do? 22 A Yes, ma'am. 23 Q In other words, you had a protocol or 24 checklist, if you will, of procedures? 25 A Yes, ma'am. KANABAY COURT REPORTERS 254 1 Q And as a rule when you serve a warrant, are 2 you going to go alone or are you going to go with a 3 team? 4 A With a team, ma'am. 5 Q And what's the purpose of the team? 6 A The team is to assure that the warrant is 7 served safely, as safely as possible and as 8 efficiently as possible. 9 Q Would each member on that team have a 10 specific assignment? 11 A Yes, ma'am. 12 Q And at approximately 7:30 a.m., 13 August 11, 2000, did you arrive at 1949 Belleair 14 Road? 15 A Yes, ma'am. 16 Q If you could please tell the jury what 17 occurred. 18 A I exited the van that we arrived in, and I 19 proceeded to the west side of the residence with 20 Investigator Crosby. I maintained a visual contact 21 on the west and south side of the residence. We 22 could see a small marijuana plant inside the 23 screened-in porch. I maintained visual contact with 24 that to make sure it was not disturbed while the 25 tactical team executed the warrant. KANABAY COURT REPORTERS 255 1 Q Did members of the team actually knock on 2 the door and, excuse me, secure Mr. Prince? 3 A Yes, ma'am. 4 Q Was that for safety reasons? 5 A Yes, ma'am. 6 Q Basically, at that point there was probable 7 cause to arrest him for the -- you would have talked 8 to Detective Crosby before going, correct? 9 A Yes, ma'am. 10 Q And you knew what Detective Crosby had seen 11 a few days prior? 12 A Yes, ma'am. 13 Q So he's then arrested and detained based on 14 those observations? 15 A Yes, ma'am. 16 Q And did you actually enter the residence 17 along with Mr. Prince? 18 A Yes, ma'am. He was already inside when I 19 walked in. 20 Q You came into contact in the residence? 21 A Yes. In the living room. 22 Q Did you read him his Miranda rights? 23 A Yes, ma'am. 24 Q And after that did you read him the 25 warrant? KANABAY COURT REPORTERS 256 1 A I did. 2 Q And is that standard procedure? 3 A Yes, ma'am. 4 Q Did you actually provide him a copy of the 5 warrant? 6 A I did. 7 Q And that's standard procedure? 8 A Yes, ma'am. 9 Q What specifically did this warrant allow 10 you to search for? 11 A For contraband, including the marijuana 12 plants in the back screened-in porch area of the 13 residence. 14 Q This was a very limited search? 15 A Yes, ma'am. 16 Q Members of team didn't whip through 17 drawers, open up desks, brief cases, kitchen drawers, 18 things of that nature? 19 A No, ma'am. 20 Q Members of the team did go do a cursory 21 check of rooms to make sure there weren't adults or 22 risk of harm, correct? 23 A Correct, for safety purposes, yes. 24 Q But there was no search, per se, of any 25 area other than the pool screened-in area? KANABAY COURT REPORTERS 257 1 A Correct. 2 Q And that's because the warrant limited you? 3 A Yes, ma'am. 4 Q And you followed the parameters of the 5 warrant? 6 A Yes, ma'am. 7 Q Did you actually enter the screened-in 8 porch area? 9 A I did, ma'am. 10 Q And please describe. 11 A I entered the -- actually I exited the 12 residence through the sliding door, and as I exited 13 to the right-hand side, there was an exit to the 14 screened-in porch area, an opening door, which was 15 closed at that time. There was also several plants 16 on the west side of the screened-in area, including a 17 marijuana plant tucked in with the other plants. 18 Q Okay. I just want to -- sometimes I don't 19 follow west and north and all that stuff real good. 20 Let's go through this slowly. When you leave the 21 back of the Prince residence to get into the pool 22 area, it's a sliding door? 23 A Yes, ma'am. 24 Q Is that in the living room to the pool? 25 A I believe it was the living room or KANABAY COURT REPORTERS 258 1 kitchen. 2 Q Okay. One or two areas? 3 A Correct. 4 Q You can get back from both ways? 5 A I believe so, yeah. 6 Q You can't remember? 7 A I can't remember if it was the kitchen or 8 the living room. That would be heading south. 9 Q Okay. And then to the right? 10 A To the right. 11 Q So to the right would be the rest? 12 A Yes, ma'am. 13 Q And so it's to the right that you see this 14 pot of marijuana plants? 15 A Yes, ma'am. 16 Q And that's still within this screened-in 17 area? 18 A Yes, ma'am. 19 Q Actually by a door? 20 A Yes, ma'am. 21 Q And do you recall -- 22 MS. WARDELL: Well, Judge, may I 23 approach the witness? 24 THE COURT: You may. 25 BY MS. WARDELL: KANABAY COURT REPORTERS 259 1 Q Was this the plant you actually seized? 2 A Yes, it was. 3 Q I'm going show you State's Exhibits NO. 4 4 and NO. 6 for identification purposes and ask you if 5 you recognize those. 6 A Yes, ma'am, I do. 7 Q And what is that? 8 A That is a marijuana plant along with the 9 west screened-in wall to the screened-in porch area. 10 Q Where it was when you observed it before 11 you seized it? 12 A Yes, ma'am. 13 Q Is that a fair and accurate representation 14 of where the marijuana plant was when you saw it? 15 A Yes, ma'am. 16 MS. WARDELL: At this time I would move 17 State's Exhibits NO. 4 and NO. 6 into 18 evidence. 19 THE COURT: Any objection? 20 MR. DEVLAMING: Let me just -- I 21 probably won't, Judge, but if I could just 22 see them. None. 23 THE COURT: That will be received. 24 BY MS. WARDELL: 25 Q You actually took these pictures, right? KANABAY COURT REPORTERS 260 1 A Yes, ma'am. 2 MS. WARDELL: May I briefly publish to 3 the jury? 4 THE COURT: Please. 5 MS. WARDELL: May I approach? 6 THE COURT: You may. 7 BY MS. WARDELL: 8 Q I'm showing you State's Exhibits NO. 3 and 9 a NO. 5, and I want to ask if you recognize these. 10 A Yes, ma'am. That's the same plant. And I 11 took those photos back at the Largo Police 12 Department. 13 Q This would be it in its uprooted condition? 14 A Correct. 15 Q What you actually seized? 16 A Correct. And I also removed one leaf to be 17 processed, and that's placed on the desk next to it. 18 Q That single leaf was what you sent to the 19 lab? 20 A That is what I did a presumptive on. 21 Q Okay. Let's talk about that in a minute. 22 This is a fair and accurate representation of how 23 they looked when you took them? 24 A Yes, ma'am. 25 MS. WARDELL: Judge, I would move KANABAY COURT REPORTERS 261 1 State's Exhibits NO. 3 and NO. 5 into 2 evidence. 3 THE COURT: Any objection? 4 MR. DEVLAMING: None. 5 THE COURT: They will be received. 6 MS. WARDELL: Briefly publish? 7 THE COURT: All right. So publish. 8 BY MS. WARDELL: 9 Q Okay. You mentioned a presumptive. Tell 10 us about that. What is that? 11 A A presumptive is a test that is given to us 12 that detects a narcotic substance. It's specifically 13 designed for one or multiple narcotics. The tests 14 that I used was specifically for marijuana. What you 15 do is you take a small portion of the substance you 16 want to test, place it inside a plastic ampule, close 17 it and break both -- there's two separate ampules 18 inside, shaking it, mixing the chemicals and it will 19 indicated a color change. For marijuana specifically 20 it's purple color. From clear to purple. It did 21 activate as a positive presumptive test. 22 Q Not withstanding the fact the test told you 23 it was marijuana, did you on your own form an opinion 24 that it was marijuana? 25 A Yes, ma'am. It's a marijuana leaf. KANABAY COURT REPORTERS 262 1 Q Based on your training and experience? 2 A Yes, ma'am. 3 Q And is it procedure to place this into 4 evidence? 5 A Yes, ma'am. 6 Q And is it procedure to forward a portion of 7 that plant over to the lab to have the lab actually 8 test it? 9 A Yes, ma'am. 10 Q Did do you that in this case? 11 A Yes, ma'am, I did. 12 MS. WARDELL: Judge, may I approach the 13 witness? 14 THE COURT: Please. 15 BY MS. WARDELL: 16 Q I'm going to show you State's Exhibit NO. 2 17 and NO. 9. Let's talk about NO. 9 first. What is 18 that? 19 A This is the entire marijuana plant that has 20 been folded up into smaller portions to be able to 21 fit into the bag, and that was placed into evidence. 22 Q So basically it's been sitting there since 23 August 11 drying out? 24 A Yes, it's dried out. 25 Q And are those your markings on it so you KANABAY COURT REPORTERS 263 1 can recognize what it says? 2 A Yes. You notice on the tape part here 3 these are my initials, M.P.B, and the date that 4 was -- it was sealed covering the tape on the back. 5 Q So if you open that, it's going to be dried 6 marijuana? 7 A Yes, ma'am. 8 Q Is that a fair and accurate representation 9 of the same condition that was in when you sealed it? 10 A Well, it was a lot bigger because it has 11 dried out at this time. 12 Q Is the bag the same? 13 A The bag is the same. 14 MS. WARDELL: I would move State's 15 Exhibit NO. 9 into evidence over any 16 objection. 17 THE COURT: Objection? 18 MR. DEVLAMING: None. 19 THE COURT: It will be received. 20 MS. WARDELL: It's -- Judge, it's not 21 my intent to open it at this point. If that 22 needs to be done later, that's fine. 23 BY MS. WARDELL: 24 Q And with regards to State's Exhibit NO. 2, 25 is this what you actually sent to the lab? KANABAY COURT REPORTERS 264 1 A I sent a total of five leaves to the lab. 2 I don't know how many were used, but this is one of 3 the leaves that was sent, yes. 4 Q And that was the bag you sent it in? 5 A I sent it in the inside plastic bag. It 6 was resealed by, I imagine, a lab worker. 7 Q And is this in the same condition with the 8 exception of what the lab people did to it as when 9 you packaged it? 10 A Yes, ma'am. It's just a little dried out 11 at this point. 12 MS. WARDELL: Judge, I would move 13 State's Exhibit NO. 2 into evidence? 14 THE COURT: Any objection? 15 MR. DEVLAMING: None. 16 THE COURT: Be received. 17 MS. WARDELL: Permission to publish? 18 THE COURT: Please. 19 BY MS. WARDELL: 20 Q And what was the point of just picking a 21 few leaves to send over. 22 A We don't need to send the entire plant. 23 It's an accurate representation of the plant to take 24 off a few leaves and send them out to be processed. 25 Q Is that standard police procedure? KANABAY COURT REPORTERS 265 1 A Yes, ma'am. 2 Q Do you recall how much the plant weighed 3 before you sent it to the lab? 4 A After shaking off the excess dirt, I have 5 it listed as 75 grams. And I did weigh that myself. 6 Q Yourself? 7 A Yes, ma'am. 8 MS. WARDELL: Judge, I don't have 9 anything further. 10 THE COURT: Any cross? 11 MR. DEVLAMING: Yes. 12 THE COURT: Proceed, sir. 13 CROSS-EXAMINATION 14 BY MR. DEVLAMING: 15 Q Officer Bruno, were you one of the officers 16 that executed the warrant? 17 A Yes, sir. 18 Q Did you have bulletproof wear on your 19 person? 20 A I believe I was wearing shorts and a 21 T-shirt and then a bulletproof vest over the top of 22 the T-shirt, yes. 23 Q Okay. And did -- how many members of your 24 department served the warrant? 25 A I believe it was myself and Officer Crosby KANABAY COURT REPORTERS 266 1 outside the residence, and probably four to six 2 members of the tac team inside went to the front 3 door. 4 Q Okay. And that's -- that's to be done very 5 quickly, right, in order to gain some sort of, you 6 know, control and surprise? 7 A In order to -- well, in most warrants, yes. 8 Q Okay. And these half a dozen people, were 9 they dressed like you, or were they in all black? 10 A I believe they were in all black except for 11 Officer Lauance (phonetic) who was wearing a full 12 uniform like I'm wearing. 13 Q The ones that were in all black did they 14 also have bulletproof vests on? 15 A I would imagine they did underneath their 16 shirts, yes. 17 Q Okay. And either automatic or 18 semiautomatic firearms? 19 A I believe some. Officer Chaney I do 20 remember specifically carrying and MP5, which is a 21 semiautomatic rifle, or not a rifle but a medium 22 sized machine gun. And other than that, I believe 23 everyone else had handguns. 24 Q Okay. And is it practice for all of them 25 to go in in order to gain control of the house as KANABAY COURT REPORTERS 267 1 quickly as possible? 2 A Yes, sir. 3 Q And was that done in this case? 4 A I believe it was. I was on the side of the 5 residence. I couldn't see exactly what was going on. 6 Q Was there any debriefing that there was a 7 nine-year-old and a thirteen-year-old asleep in the 8 house when it was being searched? 9 A I was made aware that there were children 10 inside the residence, and I was made aware that they 11 were sleeping upon entering the residence after the 12 warrant had already been executed and Mr. Prince was 13 secured. 14 Q Where was Mr. Prince arrested, do you know? 15 A Do not know, sir. 16 Q Did you go inside residence? 17 A Yes, sir. 18 Q Okay. Did you go out into the lanai area? 19 A By the front door? 20 Q No, no. The lanai, meaning the screened-in 21 porch area. 22 A Yes, sir. 23 Q Okay. So you're out back making sure that 24 nothing happens to that plant by looking through it, 25 correct? KANABAY COURT REPORTERS 268 1 A Right. 2 Q The six officers go through the door, 3 secure the house, and you're still outside looking at 4 that plant? 5 A Correct. 6 Q All right. So at some point in time when 7 they say, "all secured," you're able to take your 8 eyes off the plant and go in the house, right? 9 A Correct. 10 Q Did you ever see Mr. Prince on that date on 11 the lanai, that is, in the screened-in porch area? 12 A No, sir, I did not. 13 Q Go ahead. 14 A He was inside the residence when I made 15 contact with him. 16 Q All right. So did you ever see him in 17 possession of what was on the lanai on April 11th of 18 the year 2000? 19 A No, sir, I did not. 20 Q And how many marijuana plants did you take 21 after this house was secured? 22 A One plant, sir. 23 Q And is this, which I am showing you will be 24 marked Defense Exhibit NO. 3 for identification, does 25 this appear to be the pot that you got that marijuana KANABAY COURT REPORTERS 269 1 out of? 2 A It appears to be. I do recall the dead 3 root system in there also, and it's evident in the 4 photos that there is a dead root system in that 5 plant. 6 Q You took the plant out of that pot? 7 A Yes, sir. 8 Q Okay. You remember taking it out of the 9 pot before another officer said, "Hey, did you take a 10 picture of that?" 11 A Yes, sir. 12 Q All right. So then you put the plant back 13 in the pot? 14 A Yes, sir. 15 Q Okay. So that picture that we saw was you 16 replanting -- replanting that pot into the pot before 17 the photo was taken? 18 A Correct. I took it out, shook some of the 19 dirt off it and placed it back into the planter. 20 Q You sure this is the planter you took it 21 out of? 22 A Yes, sir. 23 Q Are you absolutely sure it did not come out 24 of a black planter that might have looked something 25 like Defense Exhibit NO. 1 for identification? KANABAY COURT REPORTERS 270 1 A I'm positive it came out of that planter, 2 sir. 3 Q Thank you. When you went to the 4 screened-in porch area, did you have to trans -- did 5 you have to go over any gates? 6 A To go over any gates? 7 Q Right. 8 A I don't recall, sir. I don't believe that 9 there was a gate on the west side of the residence. 10 Q All right. Let me show you what's been 11 marked at Defense Exhibit NO. 2-A and B for 12 identification. Does that look like the west side of 13 the residence? 14 A Actually, that looks like the east side of 15 the residence to me, sir. 16 Q Okay. Well, does one side have a gate 17 where you would need to open it, yet the other side 18 is open where you can walk right back to the 19 backyard? 20 A I don't recall, sir. This does look like 21 it is the east side of the residence though. 22 Q Okay. And let me show you what's been 23 marked as Defense Exhibit NO. 2-C and D. Does that 24 appear to be the rooted plant system that you saw on 25 the date that you conducted your seizure? KANABAY COURT REPORTERS 271 1 A It looks similar to it. I couldn't 2 absolutely say it is the same one. 3 Q Does that help you? Does that other 4 photograph that I just showed you help you by showing 5 you where on the lanai it was sitting? 6 A That is an accurate representation of where 7 the plant was removed. Whether that's the same root 8 system I couldn't tell you though. 9 Q But you have no reason to believe it's not? 10 A Not -- I couldn't tell you either way, sir. 11 Q Unless we did a pretty good job in 12 rerooting the dead rubber tree plant? 13 A Yes. 14 Q Okay. Is it part of the team when they 15 first get there for safety reasons to go through 16 every room. 17 A Do a cursory search to make sure there is 18 no armed gunmen hiding behind a closet door, yes. 19 Q Okay. So they walk in every room to make 20 sure that there's nobody that could cause them a 21 safety problem later, correct? 22 A I don't know that that's what they did as I 23 was not in the house. That would be normal 24 procedure, yes. 25 Q All right. Now, you can tell us this. Did KANABAY COURT REPORTERS 272 1 you ever see -- well, let me ask you this. If you're 2 doing that cursory search and you see something 3 illegal, you can take it, can't you? 4 A If it's in plain view? 5 Q Right. 6 A Yes, sir. 7 Q Okay. Did you ever see on that date any 8 curing marijuana? Do you know what I mean by that? 9 A No, sir. 10 Q Okay. Do you see any marijuana hanging 11 upside down so it can dry out and be later smoked? 12 A The only room I entered that day was the 13 living room. I didn't go in any rooms and no one 14 presented me anything else. 15 Q That's not what I asked you. Did anybody 16 present you with anything? 17 A No, sir. 18 Q How about any dried leaves? 19 A I was presented no other evidence other 20 than that marijuana plant. 21 Q Just that one plant in that dead rubber 22 tree planter? 23 A That's what I took in evidence. 24 MR. DEVLAMING: May I open this? 25 THE COURT: Yes. KANABAY COURT REPORTERS 273 1 BY MR. DEVLAMING: 2 Q I'm having in my hand what's been marked as 3 State's Exhibit NO. 9 now into evidence. Did you 4 take custody of the marijuana bush? 5 A The plant, yes. 6 Q The plant? 7 A Yes, sir. 8 Q And you sent one leaf off? 9 A Five leaves off to the lab. One for 10 presumptive on that I did. 11 Q Okay. And the rest of the plant you put in 12 this bag? 13 A I believe so, sir. 14 Q And on August 11th of the year 2000, is 15 this what you carried out of that residence? 16 A I believe there was more to it than that, 17 sir. 18 Q And that little foliage that's left? 19 A Yes, sir. 20 MR. DEVLAMING: That's it. 21 THE COURT: Thank you. Any redirect? 22 MS. WARDELL: Just briefly, Judge. 23 REDIRECT EXAMINATION 24 BY MS. WARDELL: 25 Q You were asked whether or not you saw KANABAY COURT REPORTERS 274 1 Mr. Prince in the possession of marijuana on 2 August 11. Now, possession doesn't have to be 3 actual, i.e., it doesn't have to be physically on him 4 to be possession, correct? 5 A Correct. There's constructive possession 6 also. 7 Q There is something else in the law called 8 constructive possession, right? 9 A Yes, ma'am. 10 Q And, in your opinion, Mr. Prince was in 11 constructive possession -- 12 MR. DEVLAMING: Objection, your Honor. 13 Object to the form of the question as being 14 asking for a legal conclusion. 15 MS. WARDELL: Judge, he opened the door 16 when he asked him was he in possession. 17 THE COURT: Overruled. 18 BY MS. WARDELL: 19 Q In your opinion, was Mr. Prince in 20 constructive possession of the marijuana plant that 21 was seized from his pool area? 22 A Yes, ma'am. 23 Q And this dried stuff basically has been 24 sitting in some evidence room somewhere since 25 August 11, right? KANABAY COURT REPORTERS 275 1 A Yes, ma'am. 2 Q It was a big and bushy plant when you put 3 it in and now it's dried? 4 A It's completely dried. 5 Q And it's this dried stuff that people 6 crunch and crumble and do whatever when they put it 7 in a paper and smoke it, right? 8 A It's the buds from the plant. 9 Q Right. This could be smoked? It could 10 have been smoked? 11 A It has THC content, yes. 12 Q All right. 13 MS. WARDELL: Nothing further. 14 MR. DEVLAMING: That's all, Judge. 15 THE COURT: Any questions? None? Sir, 16 you may step down. You are still under 17 subpoena. 18 THE WITNESS: Thank you, sir. 19 MS. WARDELL: He may be excused from 20 the building. 21 THE COURT: You are excused from the 22 building, sir. 23 You have any other witnesses you wish to 24 call at this time? 25 MS. WARDELL: Yes, your Honor. KANABAY COURT REPORTERS 276 1 Stacy Mace. 2 * * * * * * * * * * * * * * * * * * * * * * * * 3 Whereupon, 4 STACY MACE, 5 the State's witness herein, being first duly 6 sworn upon oath, was questioned and testifies as 7 follows: 8 THE COURT: Please proceed. 9 DIRECT EXAMINATION 10 BY MS. WARDELL: 11 Q Good afternoon. If you could please turn 12 to the jury and introduce yourself by stating your 13 name and how you're employed. 14 A My name is Stacy Mace. I work at the 15 Pinellas County Forensic Laboratory as a forensic 16 chemist. 17 Q And what would your duties and 18 responsibilities include? 19 A I analyze evidence to determine whether or 20 not there is controlled substances present. 21 Q And what type of training have you had to 22 enable you to do that? 23 A I have a Bachelor's of Science Degree from 24 the University of Central Florida in forensic science 25 and a minor in chemistry. I participated in a KANABAY COURT REPORTERS 277 1 one-term internship at the University with the head 2 of the forensic science department. I completed an 3 on-the-job training program with the Pinellas County 4 Forensic Laboratory, and I also completed a 5 forty-hour DOA forensic chemistry seminar. 6 Q How long have you held this position? 7 A A little over two years. 8 Q Have you during that two year period had 9 the occasion to chemically analyze various substances 10 to determine whether or not they contain narcotics? 11 A Yes, I have. 12 Q And how many times? 13 A Over a thousand. 14 Q Specifically, have you had an occasion to 15 do chemical testing to see if marijuana is involved? 16 A Yes, I have. 17 Q And how many times? 18 A Several hundred. 19 Q Is this a daily job for you? 20 A Yes. 21 Q Are you right across the street in one of 22 those labs, or where is the building? 23 A It's located at the Sheriff's Office 24 complex on Ulmerton Road and Seminole Boulevard. 25 Q As a matter of routine, you analyze KANABAY COURT REPORTERS 278 1 evidence throughout Pinellas County in cases? 2 A Yes, I do. 3 Q Have you been declared an expert before in 4 this particular area? 5 A Yes, I have. 6 MS. WARDELL: Judge, at this point I 7 would tender her an as expert in the 8 specific area of using chemical testing to 9 determine whether or not marijuana is 10 present. 11 THE COURT: Any voir dire? 12 MR. DEVLAMING: Not right now, no. 13 THE COURT: Be received. 14 MS. WARDELL: May I approach? 15 THE COURT: Please. 16 BY MS. WARDELL: 17 Q I'm show you State's Exhibit NO. 2 for 18 identification purposes and ask you whether or not 19 you recognize it? 20 A Yes, I do. 21 Q And how is it you recognize that? 22 A On the evidence label this is my signature 23 indicating that I opened this evidence and the date 24 that which I opened it and sealed it back on the heat 25 sealed bags. These are my marks on here, including KANABAY COURT REPORTERS 279 1 the date I that sealed this evidence, the laboratory 2 number, item number and my signature. 3 Q So when the evidence came to you it was 4 just in a manila bag and you, after the fact, put it 5 in this sealed bag? 6 A Yes, I did. 7 Q And do you recall the date you received it? 8 A May I refer to my notes? 9 Q Sure. 10 A I received the evidence on August 15, 2000. 11 Q And do you recall how you received it? 12 A I received it from our evidence custodian. 13 Q Is there a specific procedure that your 14 office has in place with as far as receiving 15 evidence, testing it and then sending it back? 16 A Yes. Evidence comes into our laboratory 17 via submitting agency to our evidence custodian, 18 where he'll log it in the computer, give it a 19 laboratory number and then keep it in a locked vault 20 until the cases are assigned to a chemist. And once 21 they're assigned, the chemist will pick up their case 22 and keep it in a locked bench until their analysis is 23 complete and a report is generated. Now, once a 24 report is generated, the chemist will turn it back to 25 the evidence custodian and he will return it back to KANABAY COURT REPORTERS 280 1 the submitting agency. 2 Q And with regard to this particular 3 evidence, would you talk to the jury about what it 4 was you analyzed and what the results were? 5 A I opened the evidence bag that was 6 submitted to me, removed the contents, which I have 7 described as plant material. I weighed it. I took a 8 sample for my analysis. I reweighed the sample to 9 determine how much was left and replaced it back into 10 this bag here that you see and heat sealed it. 11 Q And what were the results of your analysis? 12 A It was positive for cannabis. 13 Q And was all of the plant material used in 14 your testing, or did some remain? 15 A Some remained. 16 Q And is what remained what we see there with 17 a naked eye through the clear bag? 18 A Yes, it is. 19 Q So there is no longer anything down in the 20 manila envelope? 21 A Correct. 22 Q That was used up in the testing? 23 A Yes. 24 Q And could you just briefly talk to the jury 25 about the actual test? KANABAY COURT REPORTERS 281 1 A I performed a series of three microscopic 2 chemical and instrumental tests to determine my 3 results. 4 Q And can you tell us how that's done? 5 A First I looked at the sample under the 6 microscope for features characteristic to cannabis. 7 Then I ran a color test called the Duquenois Levine 8 test where I took a small amount of the sample and 9 extracted it with a solvent, and with this extract I 10 add a reagent and the resulted color I refer to my 11 notes. And this color just gave me an indication of 12 what the substance might be. 13 And then I ran the sample on the gas 14 chromatograph mass spectrometer, which we abbreviate 15 GCMS. Now the GC essentially is just an oven, and 16 inside this oven there's a column, and this column 17 serves to separate the sample. So the separated 18 sample at this point travels through the mass 19 spectrometer where they are broken apart and the 20 fragments were detected and recorded. 21 We -- this is a confirmatory test because 22 the way in which any chemical breaks apart is 23 characteristic. They always break apart the same way 24 every time we analyze them. The data is represented 25 to me in the form of a graph, which I compared it to KANABAY COURT REPORTERS 282 1 a standard, and if they match, it was considered a 2 positive test. 3 Q And your conclusion was, in fact, that the 4 substance you analyzed was marijuana? 5 A Correct. 6 Q I don't have anything further, Judge. 7 THE COURT: All right. Any cross? 8 MR. DEVLAMING: Just a couple 9 questions, your Honor. 10 CROSS-EXAMINATION 11 BY MR. DEVLAMING: 12 Q Miss Mace, is this the only marijuana as it 13 relates to this case that you were given to analyze? 14 A Correct, it is. 15 Q Okay. And, number two, do you have any 16 idea how much or what cost it was to the tax payers 17 for you to do this analysis? 18 MS. WARDELL: Objection, Judge. 19 Relevancy. 20 THE COURT: Sustained. 21 MR. DEVLAMING: I don't have anything 22 further. 23 THE COURT: Anything else? 24 MS. WARDELL: No, sir. 25 THE COURT: Ladies and gentlemen, any KANABAY COURT REPORTERS 283 1 questions of this witness? 2 THE JURY: No, sir. 3 THE COURT: No questions from the 4 jurors. Ma'am, you may step down at this 5 time? She may be released? And, Ma'am, you 6 are still subject to subpoena however. 7 Okay? Thank you. 8 Do you have any other witnesses? 9 MS. WARDELL: Judge, the State would 10 rest. 11 THE COURT: All right. The State of 12 Florida has rested its case. Counsel, 13 please approach. 14 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 15 MS. WARDELL: First, Judge, I'm going 16 to apologize for telling you whatever and 17 never mind. That was inappropriate when I 18 walked away from that objection. 19 THE COURT: Yeah. All right. You have 20 a motion? 21 MR. DEVLAMING: Yes. 22 THE COURT: At this time? 23 MR. DEVLAMING: Do you want to do it up 24 here? 25 THE COURT: I mean, it's up to you. I KANABAY COURT REPORTERS 284 1 wanted you to do it up here unless it's 2 going to take you a while because I was 3 going to then turn and see if you had your 4 case ready to start at this time. I don't 5 want to let them go. We haven't been going 6 quite an hour yet. 7 MR. DEVLAMING: Okay. Let me get my 8 cases. And I got -- my first witness will 9 be Gaston, so I got to make sure he is here. 10 He ain't exactly my friend, so... 11 MS. WARDELL: He was here when I went 12 to the bathroom. 13 MR. DEVLAMING: I think there's going 14 to be a little bit of fireworks before he 15 takes the stand. And Mr. Johnson let us 16 know he is not going to let him say anything 17 past his name, so you're going to have to 18 call the shots on that. 19 THE COURT: Then right now I need to 20 release them, let you run your motion, hear 21 Mr. Johnson and whatever he's got to say and 22 then go from there. 23 MR. DEVLAMING: Yes, sir. 24 MS. WARDELL: Judge I went ahead and 25 told people back in my office that if it KANABAY COURT REPORTERS 285 1 came to the point of reading the depo they 2 need to be ready to come and role-play as a 3 courtesy because I know you don't have two 4 people standing by to do that. 5 THE COURT: That thing's a hundred 6 pages. 7 MR. DEVLAMING: I don't think we're 8 going to be able to get that far. 9 MS. WARDELL: Okay. But they are 10 available if you need it. 11 (WHEREUPON THE BENCH CONFERENCE WAS CONCLUDED) 12 THE COURT: All right. Ladies and 13 gentlemen, we haven't quite been going an 14 hour, but I actually need to take you all 15 out for a short period. I don't know 16 exactly how long, ten, maybe fifteen or so 17 minutes, and then we'll get back to the rest 18 of the case from that point. Okay? Please 19 take the jury out. 20 (OUTSIDE THE PRESENCE OF THE JURY) 21 THE BAILIFF: The jury is out of the 22 hearing of the court, your Honor. 23 THE COURT: Okay. Mr. DeVlaming, sir, 24 do you have a motion? 25 MR. DEVLAMING: Yes, your Honor. At KANABAY COURT REPORTERS 286 1 this time Mr. Prince would move for a 2 directed judgment of acquittal as to the 3 charge of possession of marijuana on the 4 dates alleged in the information, and would 5 rely on two cases for that motion. I will 6 hand them to the Court, and tell you briefly 7 about what they say. 8 Judge, one is Marrisette v. State, found at 9 780 So.2d, page 1020, Fourth District, 2001. It 10 was decided about sixty days ago. And this has 11 to do with after the State rested they did not 12 introduce the marijuana which was the subject of 13 the charge into evidence. 14 Now, I know the State is going say, well, 15 yes, we did, and although I may concede that 16 they did as to 11th day of August which was 17 taken in this case, but I would suggest that the 18 marijuana that was seen on the 6th day of 19 August, which was described to be in a black 20 pot, was never -- was never seized or analyzed 21 nor was it on the 7th day of May. 22 The second cases is Trinidad v. State, 615 23 So.2d, page 806. And this was a marijuana 24 cigarette, which also was discussed in this 25 particular case, and this -- in the Trinidad KANABAY COURT REPORTERS 287 1 case I will tell you that it was available but 2 was not introduced. 3 But I'm sure the State's going to argue it 4 was not available, but that denies my client the 5 right of confrontation and due process by not 6 being able to have the substance testified in 7 order for the jury to make a determination 8 whether on the 7th of May or the 6th of August 9 he was in possession of marijuana. 10 THE COURT: Response? 11 MS. WARDELL: Judge, the response is 12 that in both the defendant's cases state 13 that if it's available I must bring it. 14 However, I would like to cite Pama at 552 15 So.2d 309, A.A., a juvenile, at 461 So.2d 16 165; J.S., a juvenile 691 So.2d 20, State v. 17 Bennett, 710 So.2d 661; Scarlett, 704 So.2d 18 615; Lewis, 754 So.2d 897, speaks for the 19 proposition that -- may I approach? 20 THE COURT: Yes. 21 MS. WARDELL: -- a law enforcement 22 officer based on his training and experience 23 may testify that a substance that he 24 observed is, in fact, marijuana sufficient 25 enough to go forward to the jury. So as for KANABAY COURT REPORTERS 288 1 the May 7 date and as for the August 6 date, 2 the officer's observations in and of 3 themself are sufficient. As for 11th day, 4 we have the lab test. 5 THE COURT: Any response? 6 MR. DEVLAMING: Judge, I am aware of 7 those, that case law, but I would like to 8 preserve my objection to the introduction of 9 that for the purpose of establishing proof 10 in this case. I was aware of that the case 11 law existed, but I still think it's a denial 12 of confrontation. 13 THE COURT: Thank you. The motion for 14 judgment of acquittal directed verdict will 15 be denied. 16 Now, you are prepared to call Mr. Gaston I 17 understand. 18 MR. DEVLAMING: Yes, sir. 19 THE COURT: And, Mr. Johnson, sir, I 20 have been told that there is some reason to 21 believe that Mr. Gaston is unprepared to 22 testify to anything beyond his name. Is 23 that accurate, sir? 24 MR. JOHNSON: May I approach, your 25 Honor? KANABAY COURT REPORTERS 289 1 THE COURT: Please. I would like you 2 to approach. 3 MR. JOHNSON: I never indicated such a 4 thing to anybody, your Honor. 5 THE COURT: Okay. 6 MR. JOHNSON: I thought we outlined the 7 areas that he would not be testifying to 8 earlier. I did want to have some ruling 9 from the Court on how we're going to handle 10 things. He doesn't have to -- so far, 11 Mr. DeVlaming hasn't told me exactly what he 12 is going to be asking either of my clients, 13 but we may get into areas where there may be 14 privilege objections and work product of 15 Miss Kobrin on my objections of this past 16 Monday. 17 THE COURT: It is my intention to 18 instruct your clients that if at any time 19 they feel that the answer to the question 20 would be incriminating and they felt 21 compelled to consult with you that I would 22 allow that to happen. I did observe the 23 other day as Mr. Gaston was testifying you 24 essentially clued him in that you felt that 25 the question should not be answered by KANABAY COURT REPORTERS 290 1 raising your hand? 2 MR. JOHNSON: Correct. 3 THE COURT: Unless there is an 4 objection from the attorneys in this case, 5 I'm prepared to allow you to proceed the 6 same today. 7 MR. JOHNSON: And if there is a 8 question which concerns my client, if I 9 raise my hand, I've asked both of them -- or 10 Miss Kobrin raises her hand, I have asked 11 them to respond, I believe my answer may 12 involve a privileged matter. Just that 13 loose just to clue people so they won't have 14 to take a privilege such as 15 self-incrimination in front of the jury 16 which would be improper. 17 THE COURT: Mr. DeVlaming and -- well, 18 Mr. DeVlaming, well, and Miss Wardell -- 19 here's my question, Mr. Johnson. Would it 20 be beneficial for us to proffer the 21 testimony at this time of the witness, 22 Mr. Gaston, to see what it is that 23 Mr. DeVlaming intends to ask him so that we 24 can get some sort of an understanding on the 25 privilege issue as opposed to questions KANABAY COURT REPORTERS 291 1 related to his Fifth Amendment right to 2 remain silent? 3 I don't think the Fifth Amendment questions 4 are going to be really in dispute. Anything 5 that may subject him to possible prosecution he 6 surely has no -- he cannot be compelled to 7 answer. However, the privilege issues are 8 separate. 9 MR. JOHNSON: Well, I consider both the 10 work product privilege and Fifth Amendment 11 privilege, that's why I was going to -- 12 THE COURT: Let me restate that. The 13 work product privilege. 14 MR. JOHNSON: I would much prefer that, 15 your Honor. And, quite frankly, it would 16 make it cleaner in front of the jury. 17 THE COURT: All right. Here's my next 18 question. Mr. DeVlaming, are you able to 19 assist us by telling us at this time what 20 particular questions that you might ask 21 related particularly or that may be related 22 to work product? 23 MR. DEVLAMING: No. No. I didn't 24 really plan to go into anything that I 25 consider to be a work product. I mean, this KANABAY COURT REPORTERS 292 1 was hashed out in the deposition, number 2 one, and, Judge, number two, I did a little 3 research since we met last, and I honestly 4 believe that when -- and if you kind of look 5 at Headnote 9, when a witness testifies in a 6 proceeding, he waives the Fifth amendment. 7 This man, under oath, answered all 8 questions in a deposition talking about 9 everything that I'm going to ask him. He -- 10 he's given up the Fifth Amendment. He has 11 waived the Fifth Amendment. And that's what 12 this case of State v. Spiegel, found at 710 13 So.2d page 13, Third District Court of Appeal, 14 1998, "The waiver of the Fifth Amendment 15 privilege against self-incrimination by 16 testimony is generally limited to a particular 17 proceeding in which the witness volunteered the 18 testimony." 19 Frankly, this is one where the lawyer ended 20 up testifying at a bar proceeding then later 21 asserted the privilege. They said, well, that's 22 two different proceedings. However, Judge, in 23 this case he gave a deposition in this 24 proceeding in this case, under oath, and it's my 25 position that he waived it. KANABAY COURT REPORTERS 293 1 THE COURT: Well, this exact case that 2 you have cited, however, specifically 3 states: "More importantly, for the purpose 4 of this case, waiver by testimony of Fifth 5 Amendment privileges is generally limited to 6 the particular proceeding in which the 7 witness volunteered testimony." 8 It cannot be said that this gentleman 9 volunteered any testimony. His attorney was 10 very vigorous in his efforts to avoid making 11 this witness or allowing this witness to 12 testify. 13 MR. DEVLAMING: Judge, what you're 14 saying is this proceeding meaning before 15 your Honor. I'm talking about the 16 proceeding at this case in a sworn 17 deposition downstairs where he answered all 18 of these questions. 19 THE COURT: Subject to the Court's 20 order that he appear at that deposition and 21 answer those questions. 22 MR. DEVLAMING: No, that he appear. He 23 could still have invoked his Fifth amendment 24 rights on -- all you did was said that he no 25 longer has the private investigator KANABAY COURT REPORTERS 294 1 privilege. You didn't abrogate anything or 2 tell him that had to waive his Fifth 3 Amendment rights. 4 MR. JOHNSON: They're separate issues 5 here, your Honor. Although the law says 6 waiving them related to a particular 7 proceeding, the case law that is given to 8 you by Mr. DeVlaming is the same case I 9 think he cited before, is where the 10 defendant takes the stand and then is 11 recalled on the same trial, and they're 12 questioning him. At that point he has 13 waived. He knows he is the defendant. He 14 knows his Fifth Amendment rights are 15 implicated. He knows he is the target. 16 Actually, he is the defendant. More than a 17 target. 18 The general rule -- and I just looked it 19 up. I didn't pull case law because I didn't 20 know there would be another dispute. I went to 21 the Sissle Federal Criminal Trials (phonetic), 22 which is the federal criminal text, and 23 basically a witness who testifies for a grand 24 jury may invoke the privilege at trial. 25 When my client, Mr. Gaston, testified in KANABAY COURT REPORTERS 295 1 deposition, I was not on notice in any way, 2 shape or form of the contradictory testimony of 3 Detective Crosby. Only Monday when I realized 4 what Crosby was going to say, did I inform the 5 prosecutor I think I've got to take the 6 privilege, or when I got some intimation. 7 I didn't know what Crosby exactly was going 8 to say until I sat in the hearing Monday and 9 heard his exact testimony, and then my decision 10 was cemented at that point. 11 So, one, not only is it a different 12 proceeding because it's not the same trial 13 proceeding where my client voluntarily waived -- 14 he is talking about a waiver. He had no 15 knowledge that his Fifth Amendment rights were 16 implicated, not knowing that Crosby was going to 17 take the position he did. So, one, no notice 18 and it was a different proceeding. It was a 19 deposition. 20 THE COURT: Miss Wardell? 21 MS. WARDELL: Judge, I don't 22 necessarily have a bone in this fight, but I 23 can't stand by and listen to him say he had 24 no knowledge. The Defense -- Mr. Gaston and 25 the defense attorney asked me for a subpoena KANABAY COURT REPORTERS 296 1 for that depo for the purpose of giving him 2 immunity, and I declined to give it to him. 3 MR. JOHNSON: Correct. And I advised 4 Miss Wardell why I wanted it because I 5 had -- you know, I'll tell you what I told 6 Miss Wardell. I told Miss Wardell I was 7 talking to my client before his deposition, 8 and I was just going over it again about the 9 simulated smoking, and he said, "Paul, I 10 can't tell you that I didn't get some in my 11 lungs." 12 I mean they're looking at it and there's 13 smoke all through the room. And based on that I 14 went out and told Miss Wardell, "Look, something 15 may have gotten in his lungs. I won't give you 16 the exact statement, but something may have 17 gotten in his lungs. I'd like immunity if we 18 can get it." We hadn't asked for it at that 19 time. 20 She departed the room, came in and gave me 21 a no signal. I had a conversation with my 22 client. He went on and testified and said in 23 the deposition, "Look, I can't tell you 24 something didn't get into my lungs." I got 25 worried that was more than simulation and the KANABAY COURT REPORTERS 297 1 State might take negatively to that. That's 2 what I was worried about. 3 I had no idea he was going to be 4 contradicted as to -- by Crosby as to whether 5 Crosby had knowledge if he was there in the 6 house otherwise without him being present after 7 he became a CI. So that's what my point was and 8 I made it clear to Miss Wardell. 9 And he testified to it, "Mr. DeVlaming, I 10 can't tell you something didn't get in my lungs. 11 There's smoke all through the room. They're 12 looking right at me while I'm trying to do it. 13 I'm doing the best I can." 14 That was my basis for going to Miss 15 Wardell, and I let her know, I'm worried some 16 got in his lungs. You might view that 17 differently. 18 THE COURT: Ten minutes. 19 MR. JOHNSON: Your Honor, by the way, 20 one other matter related to Mr. Raftery, 21 whenever the Court can, I would like to 22 address. I would be more comfortable if I 23 could do that at the bench. 24 THE COURT: Please approach. 25 MS. WARDELL: Judge, I'm at that point KANABAY COURT REPORTERS 298 1 you discussed in voir dire where I need to 2 go. 3 MR. DEVLAMING: Let's take a break 4 first then. Let's take the break and let 5 Lydia go. 6 THE COURT: All right. I'm sorry. 7 You're at the point where now? 8 MS. WARDELL: That you discussed in 9 voir dire that I got to go. 10 THE COURT: Back shortly. Ten minutes. 11 (A RECESS WAS HAD) 12 THE COURT: In my view it is, in fact, 13 I think even constitutionally it surely is 14 inherit and basic in what are constitutional 15 rights that whenever those rights are waived 16 that we do so knowingly and voluntarily and 17 freely. 18 Mr. Gaston was ordered by this Court to 19 appear at the deposition. At this time no one 20 has told me that Mr. Gaston was at any time 21 placed on notice that comments that he made at 22 the deposition could be used against him in any 23 way and he could possibly be prosecuted for 24 those. 25 We would not allow comments that any KANABAY COURT REPORTERS 299 1 defendant made to law enforcement to be used 2 against him unless he was -- he freely, 3 knowingly and voluntarily waived his rights 4 against the right to remain silent. 5 At no time that I am aware of during the 6 depo, and I did read the depo, that was 7 Mr. Gaston advised of his Miranda rights, 8 suggested to him in any way, shape or form that 9 he could be prosecuted, and at this point in 10 time I am not prepared to find that he has 11 waived his Fifth Amendment rights by previously 12 testifying, and he still at this time has the 13 right to invoke the Fifth. 14 Now, the only thing I am prepared at to at 15 this time, if you would all want to do that, is 16 to proffer the testimony of Mr. Gaston. I hate 17 to do it because it's going to take awhile and 18 we're going to have the jury sitting for a 19 while, but nonetheless, I think it's probably 20 the appropriate step before we hear his 21 testimony. 22 So I'm going ask him to be brought in at 23 this time and we shall proffer -- yes, 24 Mr. DeVlaming? 25 MR. DEVLAMING: Judge, that is going to KANABAY COURT REPORTERS 300 1 take an awful long time, puts me at a 2 disadvantage to have to then turn right 3 around and cross-examine him again. I would 4 like to do it this way. 5 I intend -- I would have intended, had it 6 not been for your ruling, to ask him 7 substantially the same questions that are 8 contained in the filed deposition, in essence 9 the areas that I put in my motion to dismiss. 10 And that is talking about the numbers of times 11 that he possessed marijuana; number two, that he 12 took drugs from within Mr. Prince's house; 13 thereafter took -- number three, that he took it 14 for -- or you know, stole it basically. He 15 conducted illegal search and seizure. 16 Now, if your ruling is those areas of him 17 violating the constitution by stealing and that 18 he was in possession of drugs are such that it 19 would violate the privilege for me to ask them, 20 I would like you just to tell me that. I 21 mean -- 22 THE COURT: I don't think it violates 23 the privilege -- I'm not prepared to say 24 that you cannot ask those questions. He 25 does not have to answer those questions. KANABAY COURT REPORTERS 301 1 MR. DEVLAMING: Okay. Well, then my 2 suggestion then is when he does say the word 3 "privilege" that you just say sustained, and 4 I will not argue. 5 MR. JOHNSON: Your Honor, may I? 6 THE COURT: You may. 7 MR. JOHNSON: Again, Mr. DeVlaming and 8 I on this subject matter had a conversation 9 yesterday early yesterday afternoon, and 10 again I apologize I didn't come with 11 research. It was my understanding at the 12 close of that, I can't give you the precise 13 wording, that the areas that Mr. Gaston was 14 going take the Fifth as evidenced in the 15 Monday hearing Mr. DeVlaming would leave 16 alone. 17 My general understanding of the law, and 18 again I'm sorry I didn't bring research, is that 19 it's improper to have someone on the stand just 20 to have him take the Fifth in front of a jury. 21 THE COURT: It is improper to put 22 someone on the stand for the sole purpose of 23 impeachment. That's a fact. 24 MR. JOHNSON: True, and also improper 25 just to put them on the stand just to take KANABAY COURT REPORTERS 302 1 the Fifth so the jury gets all the negative 2 inferences that this person must have -- 3 although it's a constitutional right, the 4 law also acknowledges that, gee, people tend 5 to look down and think badly about people 6 that take the Fifth, and that's not the 7 purpose of the Fifth amendment. It protects 8 the innocent as well as the guilty. 9 THE COURT: You're going to need to get 10 that case law. 11 MR. JOHNSON: All right. I'll have to 12 call that in. There was another matter then 13 that I wanted to take before the Court at 14 the bench. Would you rather do that now or 15 later after the proffer? 16 THE COURT: Do it now. 17 MR. DEVLAMING: Okay. 18 MR. JOHNSON: May I approach the bench? 19 Miss Kobrin also asked to -- 20 THE COURT: Miss Kobrin, if you would 21 please approach. 22 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 23 MR. JOHNSON: I represent, as the Court 24 knows, Mr. Gaston and Mr. Raftery. As the 25 Court's aware from the deposition, I KANABAY COURT REPORTERS 303 1 reviewed it a while ago, in the own words of 2 Mr. DeVlaming that members of -- whoever, 3 supporters of his client, I assume they're 4 from the Lisa McPherson Trust, intended at 5 the deposition to photograph Mr. Raftery. 6 There were two men outside waiting with 7 cameras. One of the men I understand is here 8 with a camera. Mr. Raftery, as a longtime DEA 9 agent, has made many people be put in jail, put 10 people -- he's been informed that he has had 11 three death contracts taken out on him. 12 It's his understanding that a particular 13 organization which he's given me the name of 14 still has an active death contract, murder 15 contract, out on him. He's been very careful 16 not to be photographed. He has been very 17 careful not to be seen. The Lisa McPherson 18 Trust has an extensive internet presence. I 19 don't know if the Court's gone through it. 20 THE COURT: No clue. 21 MR. JOHNSON: I believe that they would 22 want to publish a photograph of him. Also 23 I'm worried about the media. My 24 understanding generally of the law in 25 Florida, the Supreme Court allows the media KANABAY COURT REPORTERS 304 1 to be here unless there is a compelling 2 showing of that the media's presence would 3 harm people here or other proceedings. 4 I don't think photographing -- the media 5 photographing Mr. Raftery would harm the 6 proceedings, but certainly it would put him at 7 risk were they to air that or release those 8 photographs. He will be willing to testify. He 9 has information and a belief that he is still 10 under one active murder contract. He does not 11 want to be photographed and published. 12 He has got to figure out how to get out of 13 this courthouse without being photographed 14 because I assume as at his deposition, there's 15 people out there waiting to photograph him. I 16 believe that is a compelling interest, and he 17 would be happy to tell the Court, in camera, 18 what he believes is the active murder warrant -- 19 excuse me, murder contract. 20 THE COURT: You all wish to be heard on 21 this? 22 MR. DEVLAMING: Well. The only thing I 23 would say, Judge, is that he is still 24 actively surveilling people in the 25 Lisa McPherson Trust. I think they have the KANABAY COURT REPORTERS 305 1 right to know who is surveilling them. Now, 2 if there's a representation that he will no 3 longer do that, that's fine. But I think 4 other than that, that they have a right to 5 know who's on there bumper. 6 MR. JOHNSON: They've got people in the 7 courtroom who are going to visually identify 8 him. He cannot have his face published with 9 that name. 10 MS. WARDELL: Judge, this criminal 11 proceeding is not for the purpose of them 12 knowing who is following them. I'm no fan 13 of either side here, but this criminal 14 proceeding is not for them to further the 15 Lisa McPherson cause. That's what he 16 basically just said. You got to decide 17 whether or not this is a compelling 18 interest. 19 THE COURT: That's it. 20 MS. WARDELL: Not whether that is. 21 THE COURT: And at this point in time 22 as best I can tell his life may well be in 23 danger, and if his life is in danger, I do 24 find that to be a compelling interest. I 25 would allow him to enter. I would not allow KANABAY COURT REPORTERS 306 1 the taking of his photograph by any media. 2 MR. JOHNSON: For the record, there is 3 a moving camera and a still photographer in 4 the courtroom. 5 THE COURT: I would indicate to them 6 that they would not be allowed to take his 7 photo. 8 MS. WARDELL: We've got to turn off 9 that video in the media room. 10 MR. DEVLAMING: Well, he doesn't have a 11 video. He's got audio. 12 MS. WARDELL: I thought he was -- 13 MR. DEVLAMING: Audio. 14 THE COURT: From my understanding it 15 was supposed to be audio. If he's doing 16 something on video, I don't want anything 17 videoed. 18 MR. DEVLAMING: Then we better find 19 out. You know, I thought it was like you 20 said, audio, but if you think it's video, 21 then we'll find out. You know what else you 22 can tell them, Judge, is they can -- 23 THE COURT: Blur out his face. 24 MR. DEVLAMING: Yeah. 25 THE COURT: I got to rely on that KANABAY COURT REPORTERS 307 1 though, and I don't really want to do that. 2 MR. JOHNSON: And I have -- the way 3 they do the cameras I had where a woman was 4 drugged and potentially molested, certainly 5 photographed. The way the fuzz overgoes it 6 can be removed. She got aired on like the 7 fifteen-minute updates, hey, upcoming thing 8 on the trial, and they had taken the fuzz 9 off. 10 THE COURT: We'll not do that. All 11 right. Thank you. Mr. Bunker, sir, are you 12 video or audiotaping these proceedings? 13 MR. BUKNER: It's hooked into both. 14 THE COURT: You were not given 15 permission to videotape these proceeding. 16 MR. BUKNER: Oh, I'm sorry. I didn't 17 understand that. 18 MR. DEVLAMING: Judge, I think -- you 19 know what he means? From the fixed -- 20 THE COURT: I know what he means. 21 Okay. All right. We need to bring in the 22 witness. You need to unhook your video. 23 Let's proceed. 24 MR. DEVLAMING: Wait a minute now. 25 Before you bring in Gaston, we were going to KANABAY COURT REPORTERS 308 1 talk about whether you were going to make a 2 ruling and tell me what I can or cannot, you 3 know, go into. I mean, I didn't want to 4 spend the next forty-five to sixty minutes 5 on a proffer if you tell me these are the 6 areas that I'm going to sustain -- 7 THE COURT: He's at this point in time 8 given me no case law he has to, and I'm 9 still prepared to proffer him at this 10 moment. As best I can -- well, put it like 11 this. My ruling at this time still stands. 12 You get to ask him those Fifth Amendment 13 questions. He just doesn't have to answer 14 them. 15 MR. DEVLAMING: Okay. Then is there a 16 need for a proffer or we'll just go ahead? 17 THE COURT: If you all don't feel 18 compelled to have a proffer, call the next 19 witness and bring the jury back. 20 MR. JOHNSON: On that aspect, 21 Miss Kobrin stepped out to call for the 22 research would be as to work product, which 23 as I made clear in the deposition, I can't 24 raise. I wasn't a lawyer at the time. Only 25 Miss Kobrin can do that, so I think the KANABAY COURT REPORTERS 309 1 proffer, if there's anything going to go to 2 work product, we still do need a proffer. 3 MR. DEVLAMING: Judge, she can raise 4 her hand, and, you know, and say work 5 product and then you can call the shot. 6 MR. JOHNSON: Well, Judge, we went 7 through this in the deposition. 8 Mr. DeVlaming knows how the Court's already 9 ruled and what's happened at least with 10 respect to Mr. Raftery. He knows how the 11 Court -- 12 THE COURT: Tell her to raise her hand. 13 Bring the jury back. And what I would allow 14 if I need argument on it, Miss Kobrin would 15 have to come to the bench. 16 MS. WARDELL: Judge, when Raftery 17 testifies, you might want to turn that 18 camera off because I know people are back in 19 my office and they may not have caught not 20 to turn that on and have a tape in, and 21 people are watching it back there. 22 THE COURT: I don't know how to turn 23 the camera off, but I'll figure it out. 24 MS. WARDELL: Call the county guy. 25 THE COURT: The county guy? Can we KANABAY COURT REPORTERS 310 1 find the county guy and have him come up to 2 the courtroom? 3 MR. JOHNSON: Can I give you some cites 4 on that issue just looking at the text that 5 I brought? 6 THE COURT: Yell them out please. 7 MR. JOHNSON: And I'm just I'm glancing 8 at this. One is Grunewald v. U.S. at 353 9 U.S. 389, 1957, U.S. Supreme Court, and I'm 10 just reading from Sissle (phonetic). "The 11 court held it's a prejudicial error to 12 permit revelation or cross-examination of a 13 petitioner of petitioner's claim to the 14 Fifth Amendment privilege before the grand 15 jury --" 16 THE COURT: That's different than this. 17 MR. JOHNSON: "-- in a separate 18 proceeding." 19 THE COURT: That's different than this. 20 MR. JOHNSON: Again I'm trying to -- 21 similarly there is another case, Charles v. 22 Anderson, and I'll give you the cite, "the 23 holding of the court distinguishing 24 cross-examination of the defendant about a 25 prior inconsistent statement in cross about KANABAY COURT REPORTERS 311 1 the previous failure to give a statement 2 concerning events that later being 3 unconstitutional --" 4 THE COURT: That's still different. 5 MR. JOHNSON: All right. I'm just -- 6 again, I didn't think this was going to be 7 an issue today based on my conversations, I 8 didn't pull the case. 9 THE COURT: Thank you. Please bring 10 him in. 11 (IN THE PRESENCE OF THE JURY) 12 THE BAILIFF: Your Honor, the jury is 13 back in the courtroom and seated. 14 THE COURT: Thank you. Mr. DeVlaming, 15 sir, if you would, please call your first 16 witness. 17 MR. DEVLAMING: Judge, yes, the Defense 18 calls Barry Gaston to the stand. 19 * * * * * * * * * * * * * * * * * * * * * * * * 20 Whereupon, 21 BARRY GASTON, 22 the Defense witness herein, being first duly 23 sworn upon oath, was questioned and testifies as 24 follows: 25 THE COURT: Please proceed KANABAY COURT REPORTERS 312 1 Mr. DeVlaming. 2 MR. DEVLAMING: Thank you, your Honor. 3 DIRECT EXAMINATION 4 BY MR. DEVLAMING: 5 Q Please tell us your name. 6 A Barry Gaston, Sr. 7 Q And in what city do you reside? 8 A Lake Wales, Florida. 9 Q And what do you do for a living, 10 Mr. Gaston? 11 A I'm a private investigator. 12 Q And do you have previous law enforcement 13 experience? 14 A Yes, I do. 15 Q Okay. Were you a law enforcement officer 16 before you became a private investigator? 17 A Yes. 18 Q Are you licensed to carry a firearm? 19 A Yes. 20 Q What do you carry? 21 A On some occasions I carry 9X18 Hungarian 22 weapon, firearm, semiautomatic. 23 Q Mr. Gaston, did you have occasion to 24 receive a call to do some work in this town back in 25 February of the year 2000? KANABAY COURT REPORTERS 313 1 A Yes. 2 Q Who called you? 3 A (No audible response.) 4 Q Who called you? 5 A Who called me for what, sir? 6 Q To do some work in this town? 7 A Joseph Fabrizio. 8 Q And do you know what Mr. Fabrizio does for 9 a living? 10 A It's privileged, sir. 11 Q That's privileged, what Mr. Fabrizio does 12 for a living? 13 A Fabrizio is a private investigator too. He 14 owns a private investigation agency, sir. 15 Q Okay. And he is the one who called you up 16 and wanted your services, correct? 17 A Yes. 18 Q Did he tell you why he was choosing you? 19 A Yes, sir. 20 Q Why? 21 A Because he needed someone with my 22 qualifications. 23 Q Okay. Qualifications meaning your 24 background, or qualifications meaning you live out of 25 town and you're African American? KANABAY COURT REPORTERS 314 1 A African American was one of the 2 qualifications. 3 Q And was the fact that you were African 4 American discussed as far as what your duties would 5 be once you came into this town? 6 A No, sir. 7 Q Okay. Were you told who would be the 8 object of your activities? 9 A No, sir. 10 Q Were you ever told who would be the object 11 of surveillance? 12 A Eventually, sir. 13 Q Okay. Well, when? 14 A When I had a meeting in February on the 7th 15 of February. 16 Q Okay. In fact, that's when all of this 17 started, right, when you came into town and you were 18 hired on February 7? Is that correct? 19 A That's when what started, sir? 20 Q Okay. February 7, is that the day you were 21 hired on this job? 22 A Yes, sir. 23 Q And did you meet with a fellow by the name 24 of Raftery as well as on that date? 25 A No. KANABAY COURT REPORTERS 315 1 Q Okay. You only met with Fabrizio? 2 A That's correct. 3 Q Fabrizio ever show you a picture of this 4 man, and I'm pointing to Jesse Smith -- excuse me, 5 Jesse Prince? 6 A Yes. 7 Q All right. And did he -- in that context 8 did he show you his picture and say, "This is the man 9 you're to follow"? 10 A Not in those words, sir. Not in that 11 context, sir. 12 Q Did he say, "This is the man that you're 13 being hired to surveil"? 14 A Yes, sir. 15 Q Or to conduct your investigation 16 surrounding? 17 A Yes. 18 Q All right. And did you from February 7 for 19 a couple of months try to position yourself so you 20 could find out where Mr. Prince was? Did you surveil 21 him? 22 A I did. 23 Q All right. And from February 7 until 24 April 1, would you tell us approximately how many 25 times you tried to position yourself so that you KANABAY COURT REPORTERS 316 1 could meet with or see or surveil Mr. Prince? 2 A As far as I can recall, eleven. 3 Q And were any of those -- and none of those 4 were successful? 5 A Correct. 6 Q Did you go to bars? 7 A Yes. 8 Q Which bars did you go to? 9 A Maccabees Lounge on Greenwood in 10 Clearwater. 11 Q Okay. Who sent you there? 12 A Joseph Fabrizio. 13 Q Did he tell you that you might be able to 14 see Mr. Prince there? 15 A He said it was possible. 16 Q Okay. And did you sit and have drinks? 17 A I had a drink each time. 18 Q Each time. Okay. Meet any ladies? 19 A Several. 20 Q Okay. Just talked to some of the ladies 21 for a couple hours and they gave you their phone 22 number? 23 A Sometimes. 24 Q Yep. Married? 25 A Who? KANABAY COURT REPORTERS 317 1 Q Are you married? 2 A Yes. 3 MS. WARDELL: Judge, I would object to 4 relevance. 5 THE COURT: Sustained. 6 BY MR. DEVLAMING: 7 Q On these eleven occasions, would you report 8 back to Mr. Fabrizio? 9 A Yes, sir. 10 Q Would you report back to him almost 11 nightly? 12 A Each time. 13 Q Each time the surveillance was concluded 14 you would report back to Fabrizio? 15 A Yes, sir. 16 Q And did you tell him the results of your 17 surveillance? If you never saw Prince, you'd tell 18 him you never saw him? 19 A That's correct. 20 Q Okay. And on those eleven occasions, did 21 you have to tell Fabrizio that he never came into 22 these places you were trying to find him? 23 A That's correct. 24 Q Were there other places you went to other 25 than this particular bar to try to find Mr. Prince? KANABAY COURT REPORTERS 318 1 A There was one other. 2 Q What is it? 3 A Wilson's Lounge in I believe that's Largo. 4 Q All right. And in February and March, in 5 either of those months, did you find Mr. Prince in 6 Wilson's Lounge? 7 A Yes, sir. 8 Q You sure? 9 A No. I must correct that. No, I did not in 10 February or March. 11 Q You did not. It wasn't until February that 12 you found him? 13 A I didn't find him in February. 14 Q Did you see him in Wilson's Lounge in 15 February? 16 A No, sir. 17 Q Excuse me. In April. I'm sorry. In 18 April? 19 A Yes. 20 Q Okay. Because the first time that you saw 21 Mr. Prince in your surveillance that you conducted in 22 this case was in Wilson's on April 1st? 23 A Yes, sir. 24 Q Okay. And where did you position yourself 25 inside Wilson's? KANABAY COURT REPORTERS 319 1 A I was casual, sir. I didn't position 2 myself in any specific location. 3 Q Did you position yourself by the front door 4 that he would have to walk by you? 5 A Not each time, no. 6 Q How about that time. On the first time 7 where you tried to make contact with Prince on 8 April 1st, did you position yourself by the door? 9 A I positioned myself in front of the 10 television where the game was playing, which was not 11 at the door. It was on the side where the pool 12 tables were and the television, the large screen TV. 13 You would have to pass me if you came through the 14 door. 15 Q Okay. And, in fact, Mr. Prince indeed came 16 in that night, didn't they? 17 A Yes, sir. 18 Q All right. And they went to the other end 19 of the bar? 20 A Yes. 21 Q What were they doing? 22 A They were kissing. 23 Q Okay. Anything wrong with that? Anything 24 immoral about that? 25 A No. KANABAY COURT REPORTERS 320 1 Q Okay. Were you watching them while they 2 were making out? 3 A Was I staring at them or watching? What do 4 you mean, sir? 5 Q Were surveilling them? 6 A Yes. 7 Q You were surveilling them? 8 A Uh-huh. I noticed them. 9 Q I'm sorry? 10 A I noticed them. 11 Q All right. And was there a time when 12 Mr. Prince walked by you on his way out with his 13 girlfriend? 14 A Yes. 15 Q Did he say anything to you? 16 A He spoke to me and said hello. 17 Q What did you say? 18 A Hello. 19 Q Okay. Did you report back to Fabrizio that 20 night that you had then for the first time made 21 contact with Prince? 22 A Yes, sir. 23 Q All right. Did you know at that point in 24 time that your employer was the Church of 25 Scientology? KANABAY COURT REPORTERS 321 1 A My employer was not the Church of 2 Scientology. 3 Q Who was your employer? 4 A Joseph Fabrizio. 5 Q And Fabrizio works for the Church of 6 Scientology? You know that now, don't you? 7 MS. WARDELL: Judge, I would object. 8 This is a defense witness. There is no 9 indication that he is hostile, and he's 10 asking quite a lot of leading questions. 11 THE COURT: Sustained. 12 BY MR. DEVLAMING: 13 Q Did you know at that point that Fabrizio 14 worked for the Church of Scientology? 15 A Fabrizio did not work for the Church of 16 Scientology as far as I knew. I didn't ask, him and 17 he didn't tell me at the time. 18 Q Are you sure? 19 A He did tell me, sir, that he is -- 20 Mr. Prince was related to the Church of Scientology 21 at one point. 22 Q Did he indicate to you who had hired him? 23 Did Fabrizio indicate who had hired him? 24 A No. 25 Q Okay. So all you knew is that Fabrizio KANABAY COURT REPORTERS 322 1 wanted you to do this job? 2 A Yes, sir. 3 Q Let me ask you this. You know who 4 Detective Crosby is? 5 A I do. 6 Q Did you ever tell Crosby that you well-knew 7 during this investigation that the Church of 8 Scientology hired you? 9 A Down the line I found out who was behind 10 the investigation, yes. 11 Q Okay. So, no mistake about it, you know 12 now who had hired Fabrizio, who then hired you, and 13 you told Crosby that, correct? 14 A Sir, I don't know the individuals that 15 hired Fabrizio. I can't speak for him. I am aware 16 of the persons involved -- correction, the 17 organizations involved. 18 Q All right. And that would be the Church of 19 Scientology? 20 A Yes, sir. 21 Q All right. Were you told why this man was 22 to be surveilled? 23 A I was told -- 24 Q Did you -- let me rephrase the question. 25 Did they tell you what you wanted to be able to get KANABAY COURT REPORTERS 323 1 out of this investigation, what they wanted you to do 2 in relation to Prince? 3 A Yes, sir. 4 Q All right. And was that to investigative 5 him to see if he had been doing anything wrong? 6 A My job, sir, was to surveil Mr. Prince and 7 to see if there was any illegal -- possibly illegal 8 activities behind his persona, observe it and report 9 it. 10 Q You worked on this case for 185 days, 11 didn't you? 12 A I'm not sure, sir. I didn't count. 13 Q All right. Let's count. I'm not going to 14 count it out loud. But you were hired on February 7, 15 correct? 16 A Yes, sir. 17 Q All right. And you know that August 11 was 18 the date of his arrest. I mean, that's in your 19 report, correct? 20 A Yes, sir. 21 Q Were you there the date of his arrest? 22 A No. 23 Q How do you know Dee was crying? 24 A I'm sorry? 25 Q How did you know Dee was crying? Your KANABAY COURT REPORTERS 324 1 report says Dee was crying. How did you know that? 2 A I don't know. I spoke to Crosby after the 3 arrest took place. He explained it to me. 4 Q Crosby said -- 5 A I'm not sure if he told me. I don't know 6 who told me, but I heard that she was crying. And if 7 that's in my report, that's what I heard. 8 Q But you don't know who told you? 9 A No. 10 Q You know this guy named Raftery? 11 A Yes, sir. 12 Q Raftery? 13 A Yes, I do. 14 Q Okay. Is he another investigator involved 15 in this case? 16 A Yes, sir. 17 Q Did you meet with him on occasion? 18 A Yes, sir. 19 Q Debrief him? 20 A Yes, sometimes. 21 Q Have some strategy sessions with him about 22 Prince? 23 A He was involved in some of them. 24 Q Okay. Did he ever call you on his cell 25 phone and tell you where you might be able to find KANABAY COURT REPORTERS 325 1 Prince? 2 A No, not me. 3 Q What about Fabrizio? Did he ever call you 4 and tell you where you might be able to find Prince? 5 A He told me sometimes, yes, sir. 6 Q Okay. And, in fact, when he would tell 7 you, you would go to position yourself at those 8 locations in the hopes of being able to surveil 9 Prince, correct? 10 A Yes, sir. 11 Q All right. Sometimes it worked, sometimes 12 it didn't, right? 13 A That's correct. 14 Q Okay. And sometimes your report indicates 15 that he was home for the night. He was with his 16 family. 17 A Yes, sir. 18 Q And do you also recall saying he was being 19 a bit conservative, he wasn't going out to bars on 20 certain times? 21 A Do I recall saying that? 22 Q Yes. That he appeared to be a bit 23 conservative in not going out? 24 A No, sir, I don't recall saying that. 25 Q All right. So your investigation then KANABAY COURT REPORTERS 326 1 starts on the 7th. You meet Mr. Prince for the first 2 time on April 1. Was it your intent to be able to, 3 and pardon the word, "infiltrate" his life to be able 4 to get into his life? 5 A No, sir. 6 Q Was it your intent to be able to get into 7 his home so that you could investigative inside his 8 house? 9 A Definitely not. 10 Q Okay. Definitely not. Could you tell me 11 then why on, if you were hired on April 7, and on 12 April 1 is the first time you ever met the man, how 13 you were able to get in his house on April 15? 14 A I was hired on February 7. 15 Q Right. The first meeting at Wilson's was 16 April 1st, right? 17 A That's correct, sir. 18 Q You got in his house on April 15? 19 A Yes, sir. 20 Q But it was never your intention to getting 21 in his house? 22 A It was never my intentions to speak with 23 him. 24 Q Fact of the matter is when you got in his 25 house on the 15th, you stopped by, right? KANABAY COURT REPORTERS 327 1 A On the 15th I followed him home. 2 Q On the 15th you followed him home? 3 A Yes, sir. 4 Q Okay. How many times did you go in his 5 house? 6 A It's privileged. 7 Q It's privileged how many times you went in 8 his house? 9 A Yes, sir. 10 Q Did you ever possess marijuana in his 11 house? 12 A Have I possessed marijuana? 13 Q In his house. 14 A Have I possessed marijuana? 15 Q Yes, sir. 16 A That's privileged. 17 Q Well, are you taking the Fifth amendment? 18 A (No audible response.) 19 Q Are you taking the Fifth amendment? 20 A Yes, sir. 21 Q All right. You got in Prince's house for 22 the first time on April 15th. Was his girlfriend 23 there, Dee? 24 A Yes, sir. 25 Q Okay. How about the kids? KANABAY COURT REPORTERS 328 1 A On April 15th? I don't remember meeting 2 the kids that night. 3 Q You know who I'm talking about, the kids? 4 Her kids? 5 A I know who you're talking about. 6 Q All right. What are their names? 7 A I don't know. I don't remember. 8 Q Were there times that you saw the kids in 9 the house? 10 A Yes, sir. 11 Q Times that they'd greet you at the door? 12 A Yes, sir. 13 Q Times that they hugged you? 14 A Oh, yes. 15 Q They thought you were their friend and 16 their daddy's friend? Did they think you were their 17 friend? 18 A Yes, sir. 19 Q All right. Did you become a confidential 20 informant officially on April 24? 21 A Yes, sir. 22 Q And you had a meeting with Detective Crosby 23 on that date? 24 A Yes, I did. 25 Q He told you what you could and couldn't do KANABAY COURT REPORTERS 329 1 as a confidential informant? 2 A Excuse me just a moment. 3 Q Sure. 4 A He gave me some information reference to 5 confidential informant. 6 Q But he gave you a sheet, didn't he? Is 7 that in evidence? Let me show you what's marked as 8 State's Exhibit NO. 1 -- is this in evidence? -- in 9 evidence. You recognize that sheet? 10 A I recognize signing it. 11 Q Okay. How about your initials on every 12 single paragraph. You recognize your initials? 13 A I do. 14 Q Did Crosby go over what the dos and don'ts 15 were as a confidential informant? 16 A He gave me the sheet and asked me to read 17 it and sign. 18 Q Okay. Did you ask him any questions, or 19 did you agree -- or did you agree to abide by these 20 conditions? 21 A I agreed. 22 Q Okay. Crosby tell you you could not either 23 use marijuana outside his presence or engage in 24 anything that would be considered entrapment? Did he 25 tell you that? KANABAY COURT REPORTERS 330 1 A I can't -- I'd like to plead the Fifth in 2 reference to your question, sir. 3 Q Were there times when you were with 4 Mr. Prince where he was drinking alcohol? 5 A Yes, sir. 6 Q And were there times when he was drinking 7 alcohol where you were concerned about him driving? 8 A Yes, I was. 9 Q And at times when you saw that that you 10 bought him alcohol? 11 A Negative, sir. 12 Q Never bought him alcohol at a bar? 13 A Twice I bought him a drink at a bar. 14 Q Did you bring alcohol to his house? 15 A Yes, sir. 16 Q Bring rum to his house? 17 A Yes, sir, in and bottle sealed. 18 Q In bottle what? 19 A In a sealed bottle. 20 Q Let me show you what will be marked as 21 Defense Exhibit NO. 4 for identification. Was it 22 Puerto Rican rum that looked like that? 23 A Possibly, sir. 24 Q Did you at any time think that Mr. Prince 25 had a problem with alcohol when you bought him KANABAY COURT REPORTERS 331 1 alcohol? Did it ever enter your mind that he had a 2 problem, he was a problem drinker? 3 A No. 4 Q Never did. Okay. Why did you bring him 5 alcohol? Was it as a gift? 6 A I'll take the Fifth on that question. 7 Q Well, do your reports indicate that Jesse 8 and Dee opened up more and talked more when you 9 brought alcohol? 10 A No, sir. 11 Q Dee did not open up more when she was 12 drinking? 13 A She opened up whenever she felt like 14 opening up. I don't know if it was because of the 15 alcohol or because she wanted to talk. 16 Q Did they consider you a friend? 17 A Yes, sir. 18 Q Let me ask you when you were having these 19 debriefings with Fabrizio primarily, and sometimes 20 Raftery, would you tell them these things you were 21 doing at the house? Would you tell them? 22 A It's privileged, sir. 23 Q Take the Fifth on that? 24 A Yes, I will. 25 Q All right. Where would these meetings take KANABAY COURT REPORTERS 332 1 place? Did you ever meet in parking lots? 2 A Sometimes. 3 Q All right. Meet at Eckerd's? 4 A Yes, sir. 5 Q All right. Met at a place calls Angie's 6 Restaurant? 7 A Sometimes. 8 Q All right. And is that when they wanted 9 you to tell them so that they could report back to 10 their employer what you were learning, what you were 11 doing? 12 A Not at Angie's, but at Eckerd's sometimes. 13 Q Was there a time that Mr. Raftery's son was 14 involved in these debriefings? 15 A I believe once. 16 Q Would he give his own opinion as to how you 17 should increase getting information from Prince, 18 Mr. Prince? 19 A No, sir. 20 Q He would not be involved in any strategy 21 sessions? 22 A Not that I recall. 23 Q Do you know how often Raftery on a daily 24 basis was surveilling Mr. Prince when you were 25 involved in this investigation from February to KANABAY COURT REPORTERS 333 1 April? 2 A I wasn't privy to all of that information, 3 sir. There were times when he was there. There were 4 times when he wasn't available. 5 Q But you didn't -- you came into town. You 6 weren't in town every day during this period of time? 7 A No, sir. 8 Q So but when you were coming into town, the 9 specific reason you were coming into town was to 10 surveil Jesse Prince, right? 11 A That's correct. 12 Q All right. And is that when Fabrizio and 13 also Raftery were stepping up their surveillance to 14 be able to help you to be where you could be to 15 surveil him? 16 A At times, yes. 17 Q Remember a girl at Wilson's named Joyce? 18 A Yes, sir. 19 Q Joyce know you're working undercover? 20 A Nope. 21 Q Okay. Is she a girl that you met there 22 that for lack of better term had an "interest" in 23 you? 24 A Yes, sir. 25 Q Okay. To this day have you ever told her KANABAY COURT REPORTERS 334 1 that you were married or working a case? 2 A I don't know her. She doesn't know me. 3 Q But you'd see her at Wilson's? 4 A A couple of times. 5 Q Played pool together? 6 A Yes, sir. 7 Q Introduce her to Jesse and Dee? 8 A Yes, sir. 9 Q How much did you get paid in this case? 10 A Overall? 11 Q Yeah. 12 A About 14,000. 13 Q Mr. Gaston, when you left and found out 14 that Jesse Prince -- let me ask you this. Do you 15 know how Raftery photographed this man's arrest? 16 Maybe you didn't know. Did you know he videotaped 17 his arrest? 18 A I wasn't present, sir. 19 Q But do you know that he did now, or has 20 this come as a surprise to you? 21 A I know now. I just learned it recently. 22 Q All right. And did Raftery ever tell you 23 about the process of knowing how he was going to get 24 arrested on the day he was? 25 A Raftery never told me how. He wouldn't KANABAY COURT REPORTERS 335 1 know. 2 Q No, no, no. Raftery is the one that 3 photographed it. He made the tape. My question is 4 did he ever tell you how he knew on April 11 to be at 5 this man's house? 6 A No, sir. 7 Q Okay. Do you know whether Raftery was in a 8 confidential vehicle surveilling this guy every day? 9 A I can't speak for him. 10 Q After April 11, did you think your job was 11 concluded when Mr. Prince was arrested? 12 MS. WARDELL: Judge, excuse me. I 13 think counsel means August 11. 14 MR. DEVLAMING: I'm sorry. You're 15 right. She's right. 16 BY MR. DEVLAMING: 17 Q When he was arrested on August 11, did you 18 think that your job was completed? 19 A Yes, sir. 20 Q Was there a time when two of my 21 investigators met with you in a place called Martin's 22 Restaurant -- I guess it's in the Lake Wales area -- 23 in October? 24 A I'd like to go back the last question. 25 Q Sure. KANABAY COURT REPORTERS 336 1 A My job was completed on the last day that 2 Officer Crosby went into that house. 3 Q Okay. That would be August 6? 4 A Yes, sir. 5 Q When he went in with you? 6 A That's correct. As far as I was concerned, 7 that was when I was finished. 8 Q But you subsequently learned that a warrant 9 was issued for his arrest -- I mean, for a search of 10 his house and he was arrested? 11 A That's correct. 12 Q All right. In fact, when you left on 13 April 6 with Detective Crosby, the reason you thought 14 you were finished is Crosby told you he was going to 15 get a warrant and serve it on Mr. Prince's house? 16 A The reason that I thought that I was 17 finished was because Officer Crosby told me that he 18 saw everything he needed to see. 19 Q Okay. All right. So let's get back to 20 that meeting. Did you have a meeting with my 21 investigators, Patterson and Emmons, at Martin's 22 restaurant on October 19th, year 2000? 23 A Yes, sir. 24 Q Why did think you were meeting with them? 25 A Because on October 16 I came home and found KANABAY COURT REPORTERS 337 1 Mr. Emmons' number on my ID box, as an Investigator 2 Emmons and Associates. And on October 18th I spoke 3 with him, and we were going to meet in reference to a 4 job that he said that he would like to hire me for. 5 On October 19th we met at Martin's Steakhouse in the 6 city of my home town. 7 Q Okay. And ostensibly you thought at that 8 point in time that was for the purpose of you getting 9 another job, right? 10 A That's right. 11 Q Okay. You met Emmons that day? 12 A I did. 13 Q Right. Met Patterson, and Patterson was 14 supposed to be the employer? 15 A That's correct. 16 Q Okay. Soon after you got there, there was 17 a surprise, right? 18 A Yes. 19 Q Jesse came around the corner and greeted 20 you, correct? 21 MS. WARDELL: I would just ask the 22 witness be allowed to answer questions. 23 This is direct testimony. 24 MR. DEVLAMING: I'm sorry. 25 MS. WARDELL: Objection. Leading. KANABAY COURT REPORTERS 338 1 THE COURT: Sustained. 2 BY MR. DEVLAMING: 3 Q Okay. Did you -- were you -- tell me what 4 you thought when you saw Mr. Prince come around that 5 corner. 6 A I thought I'm a confidential informant and 7 these two men brought a witness to me, and what's up. 8 And I was very, very intimidated. I didn't have to 9 show it, but I was very intimidated. The first thing 10 I thought about was grabbing my gun from my pocket. 11 Q Drawing your heat? Drawing your gun on 12 them? 13 A I didn't do it. 14 Q No, I know. But that's the first thing you 15 do is to draw down on him? 16 A First thing I thought about doing was 17 surviving. 18 Q Okay. 19 A It's my first instinct. 20 Q Okay. Did anybody go after you? 21 A When? 22 Q Right then. Was there anything that they 23 did in this crowded restaurant that you thought that 24 you were going to get hurt? 25 A Yes, sir. KANABAY COURT REPORTERS 339 1 Q All right. Who was the one talking to you 2 at that point in time? 3 A You want me to answer your question? 4 Q Yes. 5 A My back was to the door. These two 6 gentleman placed themselves where I would be at a 7 disadvantage. As a prior law enforcement officer, I 8 don't ever have my back to a door. They placed me 9 there. When Mr. Prince came up behind me, that's 10 when I was intimidated. That's why I was feeling 11 that way. 12 Q Okay. That didn't last long, did it? 13 A The whole time it lasted. 14 Q How long did you spend while they had 15 lunch? 16 A About thirty to forty-five minutes. 17 Q Okay. Was it more like forty-five to 18 sixty? 19 A No. 20 Q Okay. And in the meantime, they were 21 eating and you had some ice tea? 22 A They were eating and I had a glass of ice 23 tea. 24 Q Okay. And you're talking somewhat about 25 the investigation? KANABAY COURT REPORTERS 340 1 A Can you explain further? 2 Q Sure. Wasn't it said at that meeting and 3 asked to you at that meeting whether Mr. Prince was 4 pulling out plants -- 5 MS. WARDELL: Judge, again, this is 6 direct examination, and this has been turned 7 into a cross, and there is no indication 8 this witness is hostile. Why doesn't he ask 9 the witness what was going on? 10 MR. DEVLAMING: I did. He said, "Would 11 you be more specific?" 12 THE COURT: I'll sustain the objection. 13 MS. WARDELL: And I also would ask that 14 you prohibit counsel from introducing 15 self-serving hearsay through his 16 questioning. 17 THE COURT: When you object, I'll do 18 that. 19 MS. WARDELL: Thank you. 20 BY MR. DEVLAMING: 21 Q All right. So you had a conversation in 22 Martin's restaurant, and when you left, did you all 23 walk outside? 24 A When we left? 25 Q Yes, sir. Did you all walk out together? KANABAY COURT REPORTERS 341 1 A Yes, sir. 2 Q All right. Were you still feeling 3 intimidated, or was that over? 4 A I was angry by then. 5 Q Okay. Were you so angry that you didn't 6 hug Jesse Prince, or did you hug him? 7 A We hugged. I don't let people know how I 8 feel, Mr. DeVlaming. My job is to act, and when 9 those guys came up on me, I acted. 10 Q You thought they tricked you? 11 A They did trick me. 12 Q Okay. Did you trick this man in your 13 investigation? 14 A That's my job. 15 Q Jesse Prince had not moved into his new 16 house with his fiancee by the time that you started 17 this investigation on February 7, correct? 18 A I don't know when he moved in. 19 Q Was the first time you ever drove by his 20 house the day you went to his house on April 1st? 21 A I believe so. 22 Q Mr. Gaston, when you were at Jesse Prince's 23 house, did you ever steal anything? Did you ever 24 take anything out of his house? 25 A No, sir. KANABAY COURT REPORTERS 342 1 Q You never took anything out of his house? 2 A Never took anything out of his house. 3 Q Put anything in your pocket? 4 A I'll hold that as a Fifth. 5 Q You take the Fifth? 6 A Uh-huh. 7 MR. DEVLAMING: That's all I have. 8 THE COURT: Cross? 9 CROSS-EXAMINATION 10 BY MS. WARDELL: 11 Q Good afternoon. 12 A Hi. 13 Q Mr. Gaston, you have taken the Fifth on 14 several questions throughout your direct testimony. 15 Isn't it true you're taking the Fifth because you're 16 now aware that you face possible charges as a result 17 of your conduct during this investigation? 18 A Correct. 19 Q Does your alleged misconduct in any way 20 change the fact that Jesse Prince possessed marijuana 21 in your presence between May 7 and August 11? 22 MR. DEVLAMING: Just a minute. 23 Judge,if he answers that question I'm 24 entitled to cross-examine on those Fifth 25 Amendment answers. If that question stands, KANABAY COURT REPORTERS 343 1 I ask to approach the bench and ask to 2 reopen the Court's ruling. 3 MS. WARDELL: Judge, my question was to 4 Mr. Prince's misconduct. 5 THE COURT: Overruled. 6 BY MS. WARDELL: 7 Q Does your alleged misconduct in any way 8 change the fact that the defendant in this case, 9 Mr. Prince, possessed marijuana between May 7th and 10 August 11th of 2000? 11 A No, it does not. 12 Q And based upon your training and 13 experience, are you able to recognize marijuana on 14 sight? 15 A Yes. 16 Q Do you recognize it not only in plant form 17 but also as a rolled joint? 18 A That's correct. 19 Q And you are aware that you do not have 20 immunity for your answers, correct? 21 A That's correct. 22 Q I have talked to you about some of your 23 visits with Mr. Prince. I want to go to April 2nd of 24 2000. Isn't it true that Jesse Prince gave you his 25 home phone number? KANABAY COURT REPORTERS 344 1 A That's correct. 2 Q And isn't it true that Jesse Prince and his 3 girlfriend that night at Wilson's bar talked to you 4 about Scientology involvement in their life? 5 A Yes, ma'am. 6 Q They brought up the phrase to you? 7 A That's correct. 8 Q And didn't Mr. Prince also express concern 9 to you that he believed he was being followed by a 10 private investigator? 11 A Yes, he did. 12 Q I want to talk to you about April 15th. 13 Isn't it true that the defendant, Jesse Prince, ran 14 into you again at Wilson's Liquor Lounge? 15 A That's correct. 16 Q And isn't it true that he told you quote, 17 You got to come to my house for a drink? 18 A That's correct. 19 Q Isn't it true you were invited to 20 Mr. Prince's home? 21 A Yes, I was. 22 Q And that's the night you followed him to 23 his house? 24 A That's correct also. 25 Q That's how come you know where he lives? KANABAY COURT REPORTERS 345 1 A That's correct. 2 Q He took you there? 3 A Yes. 4 Q Now once inside that home, isn't it true 5 that Jesse Prince wanted to share the fact that he 6 had a, quote, pet? 7 A Definitely. 8 Q And despite his girlfriend Miss Phillips' 9 protesting that he show it to you, he showed it to 10 you nonetheless? 11 A Yes. 12 Q And when you saw it, you recognized it to 13 be a marijuana plant? 14 A Yes. 15 Q In fact, you saw it in a -- specifically in 16 a white flower pot and it was containing three to 17 four plants? 18 A Yes. 19 Q Now, after each visit, if you will, with 20 Mr. Prince, you went home that night and typed up 21 notes, correct? 22 A Yes. 23 Q And I see you're referring to things. 24 That's your reports you're referring to? 25 A Yes. KANABAY COURT REPORTERS 346 1 Q And you made these reports when it was 2 fresh in your mind? 3 A Yes, I did. 4 Q In fact, within hours of leaving 5 Mr. Prince? 6 A Right away. 7 Q And you documented that you saw three or 8 four marijuana plants in a white flower pot, correct? 9 A That's correct. 10 Q Not black? No? 11 A No. 12 Q Not orange? 13 A A white flower pot. 14 Q White. And the one you saw, the largest of 15 those three to four, was five feet tall? 16 A It's seemed to be without measuring. 17 Q And Mr. Prince stated to you that that pool 18 room was like a greenhouse, correct? 19 A Yes. 20 Q And, in fact, that same night, we're 21 talking April 15th, 2000, he actually -- Mr. Prince, 22 actually brought out a black metallic box, correct? 23 A Correct. 24 Q And when he pulled the lid off the box you 25 saw what you recognized to be marijuana, true? KANABAY COURT REPORTERS 347 1 A True. 2 Q In fact, Mr. Prince had cigarette rolling 3 papers, correct? 4 A Yes. 5 Q And Mr. Prince took his hand and filled 6 that rolling paper with that dried green substance 7 and rolled a joint, right? 8 A Yes. 9 Q You saw him lick the paper the seal it 10 tight? 11 A That's correct. 12 Q His girlfriend got the lighter and lit up 13 the joint, correct? 14 A Yes. 15 Q You were offered that joint, correct? 16 A Yes, I was. 17 Q You didn't smoke it that night, did you? 18 A No. 19 Q And you told them you couldn't smoke it 20 because you had to pass a urine test, correct? 21 A Yes. 22 Q That wasn't true the part about you needing 23 a urine test. You just made up an excuse to not 24 smoke it, right? 25 A Correct. KANABAY COURT REPORTERS 348 1 Q At any point on April 15th did you provide 2 marijuana to Mr. Prince? 3 A I never did. 4 Q Did you see him in possession of a 5 substance known to you to be marijuana? 6 A Yes. 7 Q And did you watch him as he smoked that 8 joint? 9 A Yes. 10 Q And did you smell the odor of that joint? 11 A Yes. 12 Q And was it consistent with marijuana? 13 A Yes. 14 Q Okay. I want to talk about April 22. Did 15 you again run into the defendant, Jesse Prince, and 16 his girlfriend at Wilson's Lounge? 17 A Yes. 18 Q Did you actually leave the bar for some 19 point in time with Mr. Prince and head towards his 20 car? 21 A Yes. 22 Q And when you got to that car did you smell 23 the odor of marijuana? 24 A Yes, I did. 25 Q Did you see Mr. Prince in that car smoking KANABAY COURT REPORTERS 349 1 marijuana? 2 A Yes. 3 Q Isn't it true you saw smoke, quote, 4 billowing from the car? 5 A Yes. 6 Q That's a quote in your report? 7 A That's correct. 8 Q May -- April 22? 9 A That's correct. 10 Q Soon after that occurred? 11 A Yes. 12 Q And isn't it true that again that night 13 Mr. Prince -- or, excuse me, isn't it true that 14 Mr. Prince's girlfriend Deneen told you that they 15 were being harassed and followed by the 16 Scientologists? 17 A That's correct. 18 Q So they believed all the way back in 19 April 22, 2000, that somebody was following them? 20 A Yes. 21 Q Despite believing someone was following 22 them, that didn't stop Mr. Prince from lighting up a 23 joint in a car in a public parking lot at a bar? 24 MR. DEVLAMING: Objection. 25 Argumentative. KANABAY COURT REPORTERS 350 1 THE COURT: Overruled. 2 THE WITNESS: That's correct. 3 BY MS. WARDELL: 4 Q Now, on April 24 you got your CI number? 5 A Yes. 6 Q That's when you met with Officer Crosby, 7 correct? 8 A That's correct. 9 Q Detective Crosby. And that would have been 10 273, if you remember? 11 A Beg your pardon? 12 Q NO. 273, if you remember? 13 A I don't remember. 14 Q If not, that's okay. I want to talk to you 15 about May 5th of 2000. Again you went to the lounge. 16 Is it Wilson's Liquor Lounge? Is that correct? No. 17 Actually it was Maccabees Lounge that day? 18 A Maccabees lounge. 19 Q Maccabees lounge? And at that lounge the 20 defendant arrived in his black Jeep Cherokee, 21 correct? 22 A Yes. 23 Q And you actually got into that car with 24 him, right? 25 A Yes. KANABAY COURT REPORTERS 351 1 Q And you got into the back seat, right? 2 A I like to plead the Fifth on those 3 questions. 4 Q On the questions of whether or not you got 5 into the car with Mr. Prince? 6 A Oh, I did get in the car with him. 7 Q Okay. You got into the back seat? 8 A That's correct. 9 Q I'm doing my best not to ask you about 10 anything that you did that might have been wrong. 11 Okay? If you think I do ask you, take the Fifth. 12 All right? 13 A Okay. 14 Q Mr. Prince got in the driver's seat, 15 correct? 16 A That's correct, ma'am. 17 Q And a marijuana cigarette was lit? 18 A Yes. 19 Q And you saw Jesse Prince smoke from that 20 marijuana cigarette, correct? 21 A Yes. 22 Q And you recognized that to be marijuana 23 based on your training and experience? 24 A That's correct? 25 MR. DEVLAMING: Can we have the date? KANABAY COURT REPORTERS 352 1 MS. WARDELL: Yes. May 5. 2 BY MS. WARDELL: 3 Q And you smelled that odor and you 4 recognized it? 5 A That's correct. 6 Q And it was at this meeting with Mr. Prince 7 that you were invited to the home on May 7, which 8 gave you the opportunity to bring law enforcement 9 with you, correct? 10 A That's correct. 11 Q Specifically, this event led you to opening 12 the door to bringing Mitch, right? 13 A That's correct. 14 Q And Mitch was Detective Crosby? 15 A Yes. 16 Q And on May 7 you and Detective Crosby did 17 go in Mr. Prince's house, right? 18 A Yes, we did. 19 Q And during that visit, Mr. Prince -- excuse 20 me, you were there when Mitch, who is really 21 Detective Crosby, was shown around the home? 22 A Yes, I was. 23 Q And Mr. Prince -- excuse me, Mitch, 24 Detective Crosby, actually went to the pool area? 25 A That's correct. KANABAY COURT REPORTERS 353 1 Q You had previously described the plant, 2 quote, pets that you had seen at the defendant's home 3 to Crosby, correct? 4 A Correct. 5 Q And on this visit, May 7, Detective Crosby 6 saw what you had previously described, correct? 7 A Yes, he did. 8 Q Detective Crosby corroborated what you told 9 him, correct? 10 A Yes, he did. 11 Q And, in fact, these plants were bigger than 12 when you had seen them previously when you had been 13 in the home, correct? 14 A That's also correct. 15 Q That indicates to you as a member of law 16 enforcement with experience in narcotics that 17 somebody had been growing those plants, correct? 18 MR. DEVLAMING: Objection. Calls for a 19 conclusion. 20 MS. WARDELL: Judge -- 21 MR. DEVLAMING: I think he can say what 22 he saw, but not -- I'm sorry. 23 THE COURT: Go ahead. 24 MS. WARDELL: I asked him if based upon 25 his training and experience he believed that KANABAY COURT REPORTERS 354 1 those plants had grown larger because 2 somebody nurtured them during that time 3 frame. 4 MR. DEVLAMING: Objection. That calls 5 for rank speculation. 6 THE COURT: Sustained. 7 BY MS. WARDELL: 8 Q But the plant was, in fact, larger? 9 A Yes. 10 Q On that same date, May 7, in the presence 11 of law enforcement, was a marijuana joint produced 12 from this home of Jesse Prince? 13 A Excuse me, yes. 14 Q In fact, Jesse Prince is the one that 15 introduced the word "marijuana" into that 16 conversation first by offering a, quote, smoke or a 17 joint, correct? 18 A Yes. 19 Q And his girlfriend came back out with the 20 black box that you've referenced before? 21 A That's correct. 22 Q And loose marijuana was taken from that 23 black box and a joint was rolled, correct? 24 A Correct. 25 Q Jesse Prince stood right there while that KANABAY COURT REPORTERS 355 1 joint was being rolled, correct? 2 A Yes. 3 Q It was right there in front of him? 4 A He was right there. 5 Q In fact, he smoked it in your presence, 6 correct? 7 A Correct. 8 Q And Crosby saw this, right? 9 A Yes, he did. 10 Q And this is further corroboration of what 11 you had previously told Crosby, correct? 12 A Correct. 13 Q I want to talk to you about May 30. This 14 was another incidence to where you went to 15 Mr. Prince's home, right? 16 A Yes. 17 Q Now, you believe that Crosby would be able 18 to show up undercover, but something happened with 19 the schedule and he couldn't appear, right? 20 A That's correct. 21 Q But you were already there and did not blow 22 your cover, you stayed? 23 A Correct. 24 Q Right? And at about nine-twenty Mr. Prince 25 again took you to that backyard pool area that's KANABAY COURT REPORTERS 356 1 screened-in to show you some, quote, damage to a 2 pipe, right? 3 A Yes. 4 Q And while out there, isn't it true that 5 Miss Phillips came up with a joint in her hand? 6 A That's correct. 7 Q And again you recognized this to be 8 marijuana based on your training and experience? 9 A Yes. 10 Q And you smelled the odor? 11 A Correct. 12 Q And Miss Phillips gave that lit joint to 13 the defendant, Jesse Prince, correct? 14 A Correct. 15 Q Jesse -- excuse me, actually she gave it to 16 him unlit and he, in fact, lit it, correct? 17 A That's correct. 18 Q And you saw -- 19 MR. DEVLAMING: Judge, I'm going to 20 place an objection. The information says 21 7th May, 6th August or 11th August, and I 22 think she is talking about dates not 23 alleged. I object. 24 MS. WARDELL: Judge, the Defense opened 25 the door to all of this in not only his KANABAY COURT REPORTERS 357 1 opening -- 2 THE COURT: Approach. 3 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 4 THE COURT: You said he opened this on 5 opening? 6 MS. WARDELL: In the Defense's opening 7 statements he said in this 185 days 8 something about nobody will tell you that he 9 was in possession of marijuana. He talked 10 about nobody saw rolling papers, nobody saw 11 loose marijuana, nobody saw drying things. 12 This was crossed in Crosby. All this cross 13 now opened the door to this area topic. I 14 wasn't going to do it but for him calling 15 the witness and opening it up. 16 THE COURT: I understand. Response? 17 MR. DEVLAMING: It's not in the 18 information. 19 THE COURT: Overruled. 20 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 21 THE COURT: Please proceed. 22 MS. WARDELL: Okay. 23 BY MS. WARDELL: 24 Q Mr. Gaston, we're talking about May 30. 25 We're at the point where you're outside, Miss KANABAY COURT REPORTERS 358 1 Phillips brings a joint, Mr. Prince actually lights 2 it and you see him smoke it, correct? 3 A That's correct. 4 Q Same question. You recognized it to be 5 that of marijuana and you recognized the odor, 6 correct? 7 A Yes. 8 Q Now, during this event, did you 9 specifically ask Mr. Prince how his, quote, pet 10 plants were doing? 11 A Excuse me just a moment. 12 Q That's okay. Take your time. May 30. 13 That was -- 14 A Yes. 15 Q And it's there that Mr. Prince told you 16 that his girlfriend Deneen had gotten rid of them? 17 A That's correct. 18 Q And the explanation he gave you as to why 19 she got rid of them was because they had an alarm 20 scare where the police came out and she got worried 21 that they might get busted so she pulled them all up, 22 correct? 23 A That's correct. 24 Q She said, quote, It scared me so badly I 25 buried them in the yard? KANABAY COURT REPORTERS 359 1 A That's correct. 2 Q And at no time did anybody say to you they 3 felt those marijuana plants were as a part of any 4 setup or that somebody had planted them there? 5 A Never. 6 Q In fact, they were worried that law 7 enforcement found them when they came to 8 investigative the alarm going off? 9 MR. DEVLAMING: Objection as to who 10 they is, Judge. 11 BY MS. WARDELL: 12 Q In fact, Mr. Prince believed that law 13 enforcement might have found them when the alarm went 14 off? 15 A That's correct. 16 Q During any of these visits that we have 17 talked about to date, did anybody express a concern 18 to you that they were being, quote, set up with 19 regards to these marijuana plants? 20 A No. 21 Q I want to talk about July 3. On July 3 you 22 went to the residence of Jesse Prince? 23 A Yes. 24 Q At around nine-fifteen while at that 25 residence, Mr. Prince and his girlfriend went to the KANABAY COURT REPORTERS 360 1 back bedroom, maybe to get dressed or for whatever 2 reason, they were in the back bedroom? 3 A Correct. 4 Q And that left you alone for a while? 5 A Correct. 6 Q And during that time you went out to the 7 pool area? 8 A I plead the Fifth on this question. 9 Q Just as to whether or not you went to the 10 pool area? 11 A I went to the pool area. 12 Q Okay. And to get to the pool area from the 13 inside of their home you have to go through a glass 14 sliding door, right? 15 A I did. 16 Q And you went from the kitchen to the glass 17 sliding door? 18 A Yes. 19 Q Can you also go to the pool from their 20 bedroom, if you know, from a bedroom through a glass 21 sliding door? 22 A The living room. 23 Q The living room has glass sliding doors? 24 A Yes. 25 Q And do you know about whether or not you KANABAY COURT REPORTERS 361 1 can get to the pool from the bedroom? 2 A I don't know. 3 Q Okay. And while out there in that pool 4 area on July 3, you again noticed a white ceramic 5 flower pot containing a marijuana plant, correct? 6 A Correct. 7 Q And you documented specifically a white 8 ceramic flower pot, right? 9 A Let me make sure in my documentation. 10 Q Take your time. 11 A Correct, ma'am. 12 Q Not an orange plastic one? 13 A A white ceramic flower pot. 14 Q And not a black plastic one? 15 A Right. 16 Q Okay. I want to talk to you about 17 July 13th of 2000. Again you went over to the Prince 18 residence? 19 A I was headed to that direction. 20 Q And you ultimately got there around 21 eight thirty-five? 22 A Correct. 23 Q Right? And now while there you saw 24 Mr. Prince, correct? 25 A I'm sorry? KANABAY COURT REPORTERS 362 1 Q You actually came into face to face contact 2 with Mr. Prince at his home? 3 A Yes. 4 Q And you had a conversation with him? 5 A I spoke to him. 6 Q And that conversation included marijuana, 7 right? 8 A Let me see. 9 Q Take your time. July 13? 10 A We spoke about it. 11 Q Okay. Specifically, he said that he had, 12 quote, home-grown weed, correct? 13 A Correct. 14 Q And you talked about to Mr. Prince what a 15 wonderful ability Deneen had to make those plants 16 grow, correct? 17 A Correct. 18 Q In fact, she was proud of the way she could 19 make those plants grow, right? 20 A On my observation, yes. 21 Q And, in fact, you observed that some had 22 now grown several feet tall? 23 A Correct. 24 Q And Mr. Prince expressed concern to you 25 that some of the marijuana plants had to be cut down KANABAY COURT REPORTERS 363 1 because they were becoming too large and he was 2 worried that somebody might see them, correct? 3 A Correct. 4 Q He also told you he had a yard full of 5 marijuana plants, right? 6 A At one time. 7 Q So many that he got scared and pulled them 8 out of the ground? 9 MR. DEVLAMING: Objection. Asked and 10 answered. 11 MS. WARDELL: Judge, this is a whole 12 different thing. 13 THE COURT: Sustained. Overruled, I 14 mean. 15 BY MS. WARDELL: 16 Q On that particular day he told you that he 17 got scared and pulled the plants out of the ground 18 because he had so many and he didn't want them to be 19 detected, right? 20 A Right. 21 Q He even told you on that day that some were 22 still in the yard, correct? 23 A Yes. 24 Q Now, at this point you see Mr. Prince go 25 into his bathroom and come back out with several KANABAY COURT REPORTERS 364 1 leaves of marijuana which he told you he had cut from 2 the plants in his yard, correct? 3 A Correct. 4 Q Add you saw these things in his hand, 5 right? 6 A Yes. 7 Q And you recognized them to be that of 8 marijuana leaves? 9 A Yes. 10 Q That's based on your training and 11 experience? 12 MR. DEVLAMING: What date? 13 MS. WARDELL: July 30. 14 THE WITNESS: Excuse me. The 13th. 15 BY MS. WARDELL: 16 Q In fact, he went further than that and he 17 showed you how to bind a leaf with dental floss, 18 correct? 19 A Correct. 20 Q He talked to you about how he dried the 21 leaves and how he prepared them to smoke them, 22 correct? 23 A Correct. 24 Q In fact, he went and got that same black 25 tin that's come up a couple of times and he actually KANABAY COURT REPORTERS 365 1 rolled a joint in your presence July 13th, correct? 2 A Correct. 3 Q You watched him do that? 4 A I watched. 5 Q And that joint was smoked? Mr. Prince 6 smoked that joint in your presence? 7 A Yes, he did. 8 Q You recognized the odor and the appearance 9 to be that of marijuana? 10 A Yes. 11 Q I want to talk to you about July 28th of 12 2000. Again you went to home of Jesse Prince around 13 8:30 p.m.? 14 A I'd like to plead the Fifth on this. 15 Q On going to the home of Jesse Prince on 16 July 28th? To go to his house on July 28th of 2000? 17 MR. DEVLAMING: Judge, if he answers 18 the question he opens up cross-examination. 19 THE WITNESS: I'd like to plead the 20 fifth on that. 21 BY MS. WARDELL: 22 Q Okay. On July 28th of 2000, did you see a 23 marijuana cigarette in the home of Jesse Prince? 24 A I'd also like to plead the Fifth to that 25 question. KANABAY COURT REPORTERS 366 1 Q On July 28th did you see a lit, rolled 2 marijuana cigarette at the home of Jesse Prince? 3 A I'd also like to plead the Fifth. 4 Q On July 28th of 2000, did you see 5 Jesse Prince at his home with a lit rolled cigarette? 6 A I will plead the Fifth on that again. 7 Q On July 28, 2000, did you see Jesse Prince 8 smoke a lit rolled marijuana cigarette? 9 A I will plead the Fifth. 10 Q On July 28th of 2000, did you get into the 11 car with Jesse Prince and drive to a sports pub named 12 Billy G's on Cleveland Avenue? 13 A I would plead the Fifth. 14 Q During that drive to Billy G's on July 28th 15 of 2000, was a marijuana joint passed amongst the 16 occupants of the car? 17 A I'll plead the Fifth. 18 Q On July 28th of 2000, while in that car did 19 you see Jesse Prince with a lit marijuana cigarette? 20 A I'll plead the fifth on that. 21 Q Did you see Jesse Prince with an unlit 22 marijuana cigarette on July the 28th of 2000 in that 23 car? 24 A I'll plead the Fifth. 25 Q After leaving Billy G's, did you go to the KANABAY COURT REPORTERS 367 1 beach area with the defendant and others where a 2 joint was produced? 3 A I'll plead the Fifth on that. 4 Q Actually we would be talking about 5 July 29, 2000, just around one-thirty where the date 6 would change from the 28th to the 29th. On the 29th 7 of July of 2000, early morning hours, did you see the 8 defendant handle a lit marijuana joint while at the 9 beach? 10 A I will plead the Fifth. 11 Q On August 6, 2000, did you accompany law 12 enforcement, specifically Detective Crosby, who was 13 still playing the role of Mitch, to the defendant's 14 residence? 15 A Yes. 16 Q And while at that home did you again see a 17 marijuana plant out in the pool area? 18 A Yes. 19 Q And were you present when law enforcement, 20 Detective Crosby, saw that same marijuana plant? 21 A Yes. 22 Q And during that visit of August 6th of 2000 23 did you hear Jesse Prince brag to Officer Crosby 24 about how healthy and large the plants had become? 25 A Yes, I did. KANABAY COURT REPORTERS 368 1 Q And you also heard him tell -- you also 2 heard Jesse Prince tell the detective that he had 3 some fifteen other plants he had to pull up because 4 he didn't -- 5 A That's correct. 6 Q And the plants that you saw that date 7 August 6th of 2000 were much larger than the ones you 8 had seen previously? 9 A That's correct. 10 Q Did Mr. Prince tell you on that date that 11 he only had, quote, a few roaches left? 12 A Yes. 13 Q Sorry? 14 A Yes. 15 Q And that was in response to you or 16 Detective Crosby asking if you could purchase some to 17 take with you to the Keys? 18 A Yes. 19 Q He told how he only had a few left, 20 correct? 21 A That's correct. 22 Q At any point in your investigation did 23 Mr. Prince express concerned with regards to somebody 24 rummaging through his garbage? 25 A Yes. KANABAY COURT REPORTERS 369 1 MS. WARDELL: Judge, I don't have 2 anything further. 3 THE COURT: Mr. DeVlaming, do you wish 4 to redirect? 5 MR. DEVLAMING: Just a couple, Judge. 6 REDIRECT-EXAMINATION 7 BY MR. DEVLAMING: 8 Q Mr. Gaston, early in the cross-examination 9 you said that Mr. Prince brought up the word 10 "Scientology." During the course of your 11 investigation, did he say that he had gone to 12 California to help somebody leave the church? 13 A At one point I remember something to that 14 effect. 15 Q Somebody wanted to leave the church and he 16 was flying to California to help them? 17 A That's what he told me. 18 Q On the August 6 date when you went back 19 with Detective Crosby, did you try to buy some 20 marijuana from Mr. Prince? 21 A I'll plead the Fifth, sir. 22 Q The fact of the matter is, Mr. Gaston, you 23 did try to buy marijuana from him and he told you he 24 didn't have any, didn't he? 25 A On August 6? KANABAY COURT REPORTERS 370 1 Q On August 6. 2 A Yes, sir. That was the last day. 3 Q Right. He told you he didn't have any? 4 A Yes, sir. 5 MR. DEVLAMING: That's all. 6 THE COURT: Based on those questions, 7 do you have any others? 8 RECROSS EXAMINATION 9 BY MS. WARDELL: 10 Q He told you he didn't have any for sale. 11 That's because he only had a few roaches left? 12 A That is correct. 13 Q Not that he didn't have any. That he 14 didn't have any to sell? 15 A That's correct. 16 MR. DEVLAMING: Nothing further, your 17 Honor. 18 THE COURT: Jurors have any questions 19 of this witness? Sir, you may step down. 20 You are still subject to subpoena. Do you 21 understand? 22 THE WITNESS: Yes, sir. 23 THE COURT: All right. I don't know 24 how long we've been going. How are you all 25 doing? You need a break? You all ready to KANABAY COURT REPORTERS 371 1 keep rolling? You need to approach? 2 MS. WARDELL: I just need a minute, 3 Judge. 4 THE COURT: Do you need to approach? 5 MR. DEVLAMING: No. She needs to go. 6 THE COURT: Oh, you got to go. And are 7 you all right? Do you want to take five? 8 MR. DEVLAMING: Let's take five. 9 THE COURT: All right. Let's take a 10 five minute break. 11 (A RECESS WAS HAD) 12 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 13 END OF VOLUME II 14 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 15 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 372 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 III ) 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 23, 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 373 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 374 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 375 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 376 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 377 1 P-R-O-C-E-E-D-I-N-G-S C-O-N-T-I-N-U-E-D 2 (OUTSIDE THE PRESENCE OF THE JURY) 3 THE COURT: Members of the press, our 4 next witness that comes in to testify is not 5 to be photoed or videotaped. Do you 6 understand? You all need to cut the camera. 7 We're going to cut the courtroom cameras. 8 Okay? Thank you. 9 I anticipate that we're going to take this 10 one witness next, and he'll be the last witness 11 of the evening and then we'll break until 12 morning. Here's my next question: How many 13 people do you anticipate you'll call tomorrow. 14 MR. DEVLAMING: Judge, I'm probably 15 going to -- and I'd like you to remind the 16 parties that I'm going to need Mr. Fabrizio 17 to stay over on deposition. 18 THE COURT: Is Mr. Fabrizio actually 19 here today? 20 MR. DEVLAMING: Yeah. 21 THE COURT: I'm sorry to stay over? 22 MR. DEVLAMING: In other words, he 23 knows -- he knows he has to come back. 24 THE COURT: Yes, sir, okay. Fabrizio 25 will be one. KANABAY COURT REPORTERS 378 1 MR. DEVLAMING: Right. Then I'm going 2 to either -- I might call one or both of my 3 investigators. Probably only one. 4 THE COURT: Do we think they're long 5 witnesses? 6 MR. DEVLAMING: No. Well, I don't know 7 how long the cross -- no. Lydia's saying 8 the cross is -- 9 THE COURT: What about Mr. Fabrizio, a 10 long witness? 11 MR. DEVLAMING: No, no. I think the 12 two longest witnesses, Judge, for me are 13 Gaston and Raftery. 14 MS. WARDELL: Well why, as a courtesy, 15 don't we knock Fabrizio out tonight since 16 he's been here all day? 17 THE COURT: Well, I promised them 18 seven, and seven it is. Now, if we can get 19 finished with Mr. Raftery sometime within 20 maybe a half hour or forty-five minutes, 21 then I'll ask them to take another witness 22 and we can try that. 23 MS. WARDELL: Okay. 24 THE COURT: Now here's my reason for 25 asking you this. It is my intent to not KANABAY COURT REPORTERS 379 1 start this trial again until 10 a.m. the 2 reason I don't want to start until 10 a.m. 3 is because I've got advisories in the 4 morning. Although there is a judge covering 5 for me, it will be far better if I did the 6 advisories in the morning. Enough said on 7 that. 8 So I would like to not start until about 9 ten. I can ask you all to be here at 10 nine-thirty and see if I can rocket through the 11 advisories and maybe we can start then. I'm 12 hoping that -- the real question is do you think 13 that we need to start at eight in order to 14 finish this trial tomorrow? That's my real 15 question. 16 MR. DEVLAMING: Oh, we'll get done, 17 Judge. Almost no doubt. Well, whoa, I hate 18 to say that. That -- the only other is 19 going to be Frank Oliver. 20 THE COURT: The only other is going to 21 be who now? 22 MR. DEVLAMING: Frank Oliver is flying 23 in from Miami. Remember she said she wanted 24 to proffer him? 25 THE COURT: I see. Yeah. KANABAY COURT REPORTERS 380 1 MR. DEVLAMING: That's limited 2 testimony. 3 THE COURT: Okay. 4 MS. WARDELL: I don't want this on the 5 record. 6 (A DISCUSSION WAS HAD OFF THE RECORD) 7 THE COURT: All right. Let's bring 8 them back. 9 (IN THE PRESENCE OF THE JURY) 10 THE COURT: I understand there may be 11 some grumbling. I said seven and seven it 12 is. Unless we can just squeeze one more -- 13 no. 14 Please call your next witness, 15 Mr. DeVlaming. 16 MR. DEVLAMING: Yes, your Honor. The 17 Defense calls Brian Raftery. 18 * * * * * * * * * * * * * * * * * * * * * * * * 19 Whereupon, 20 BRIAN RAFTERY, 21 the Defense witness herein, being first duly 22 sworn upon oath, was questioned and testifies as 23 follows: 24 THE COURT: Sir, you may proceed at 25 this time. KANABAY COURT REPORTERS 381 1 DIRECT EXAMINATION 2 BY MR. DEVLAMING: 3 Q Good afternoon. 4 A Sir. 5 Q Tell us your name. 6 A May name is Brian Joseph Raftery, 7 R-a-f-t-e-r-y. 8 Q Mr. Raftery, I'm not going to ask where you 9 reside, but if you could tell us what you do for a 10 living. 11 A I'm a private investigator, and I have my 12 own private investigative agency. 13 Q And do you have a primary client? 14 A Yes, I do, sir. 15 Q Who is your primary client? 16 A My primary client is Moxon and Kobrin Law 17 Firm. 18 Q And their primary client? 19 A Their primary client would be the Church of 20 Scientology. 21 Q And would you say that most of your work is 22 done for the law firm of Moxon and Kobrin for that 23 client? 24 A Yes, sir. 25 Q Now, do you know a man by the name of KANABAY COURT REPORTERS 382 1 Jesse Prince? 2 A Yes, sir. 3 Q And as part of your duties working for the 4 Moxon law firm on behalf of the Church of 5 Scientology, have you surveilled Mr. Prince? 6 A Yes, I have, sir. 7 Q And could you tell us how long you have 8 surveilled Mr. Prince? 9 A In terms of time? 10 Q Yes. 11 A I probably first observed Mr. Prince a 12 couple of years ago when he came -- I'm thinking 13 perhaps this is privileged. I'm sorry. 14 Q Well, did you surveil him as it relates to 15 a time period of February 7, 2000, to August 11? 16 A Yes, I did. 17 Q And on what regularity would you surveil 18 Mr. Prince? 19 A I would surveil Mr. Prince quite regularly 20 during that time period, either during the 21 surveillance where I was specifically keeping track 22 of him and knowing where he was, or I would even 23 observe him when I didn't and I wasn't on 24 surveillance. I would just see him. 25 His office is located right downtown in KANABAY COURT REPORTERS 383 1 Clearwater right beside one of the main buildings of 2 the Church of Scientology. My primary function is 3 security work with the church, and consequently I 4 would see Mr. Prince almost daily. 5 Q Okay. Would you ever report to anybody 6 about Mr. Prince's activities? 7 A Yes. 8 Q You know a man by the name of Ben Shaw? 9 A Yes. 10 Q And does he work for the Office of Special 11 Affairs in the Church of Scientology? 12 A That's correct, sir. 13 Q And would he be your liaison on who you 14 would report to concerning whatever you learned about 15 Jesse Prince? 16 A Either he or Mr. Moxon. 17 Q Okay. And what position does Mr. Shaw have 18 within the church to your knowledge? 19 A He is the chief of the Office of Special 20 Affairs. 21 Q And that's headquarters here in Clearwater? 22 A Yes, sir. 23 Q Mr. Raftery, as part of your reason for 24 surveilling Mr. Prince, were you asked to find out 25 any intelligence information that might help the KANABAY COURT REPORTERS 384 1 Church of Scientology in a pending civil case 2 involving Lisa McPherson or the estate of Lisa 3 McPherson versus the Church of Scientology? 4 A The primary reason why I was surveilling 5 Jesse Prince is his history of violence. He's 6 repeatedly been involved in either attacks, verbal, 7 physical attacks on members or parishioners of the 8 church. So the first reason that I would be 9 observing him and keeping track of him and his 10 associates was for that purpose. The second purpose 11 was that I did know, in fact, that he is involved in 12 a very large civil suit. 13 Q Okay. And that he's listed as an expert to 14 testify about the procedures and the practices -- 15 MS. WARDELL: Judge, again, leading. 16 Could we get the answers from the witness? 17 THE COURT: The objection is leading? 18 MS. WARDELL: Yes, sir. 19 THE COURT: Sustained. 20 BY MR. DEVLAMING: 21 Q You just said that the -- that it involves 22 a large lawsuit. Do you know what position 23 Mr. Prince has in that lawsuit? 24 A No, I really don't know exactly what his 25 position would be, no. KANABAY COURT REPORTERS 385 1 Q The word "expert witness" does not sound 2 familiar to you at all, Mr. Raftery? 3 A If you're telling me that's his only 4 function, then I have heard that, yes, sir. 5 Q All right. And based upon the information 6 that you would be gathering from the sources we'll go 7 into in a minute, were you the main liaison to the 8 Office of Special Affairs in the church? In other 9 words, was it mainly Raftery that would report to the 10 church, or was it Gaston or was it Fabrizio or your 11 son? 12 A Certainly it wasn't my son. I don't know 13 what the reporting procedures were between 14 Mr. Fabrizio and Mr. Gaston and the church or 15 Mr. Moxon. 16 Q You said that part of your reason for 17 surveillance was because of Jesse's history and his, 18 let's call it, antagonism with the church. Certainly 19 this investigation that started on February 7 20 involving Wilson's liquor store and Maccabees and all 21 that, that was primarily to be able to provide 22 surveillance information, not to protect 23 parishioners, correct? 24 A When -- it is to provide information, yes, 25 sir. Now, the way it originally began, Mr. Prince KANABAY COURT REPORTERS 386 1 was regularly going into a very, very rough area in 2 downtown Clearwater. 3 Q Where was that area? 4 A That area is called Greenwood. 5 Q Is that a predominately black area? 6 A Yes, it is, sir. 7 Q All right. And is that where predominantly 8 black Americans have their homes? 9 A Well, I don't know if it's predominantly 10 black Americans. 11 Q Well, I mean -- 12 A That neighborhood is black neighborhood. 13 Q It's a black neighborhood, right? 14 A Yes, sir. 15 Q All right. Do you see anything wrong with 16 Mr. Prince going into a neighborhood bar where blacks 17 live and work? 18 A In a high-crime area where prostitution and 19 drugs use, yeah, I would say that this would be 20 indicative of the type of character he is. 21 Q You don't take into account that he might 22 want to go -- 23 MS. WARDELL: Objection, Judge. There 24 is no indication this witness is hostile. 25 MR. DEVLAMING: I'll withdraw. I'll KANABAY COURT REPORTERS 387 1 withdraw it. I'll withdraw it. 2 BY MR. DEVLAMING: 3 Q Okay. Who is Joseph Fabrizio? 4 A Joseph Fabrizio is a private investigator. 5 Q Okay. Is he also hired by the Moxon law 6 firm whose main client is the Church of Scientology? 7 A I don't know. 8 Q Well, did you discuss -- 9 A No. 10 Q You do know or you don't? 11 A No, I don't. No, sir. 12 Q Okay. Well, did -- did you work with 13 Fabrizio in this surveillance? 14 A Yes. 15 Q Okay. What did you think he was? 16 A You asked me if I knew who hired him, and I 17 said, no, I don't. Now, if you're asking me who -- 18 did I know he was working in this investigation, yes, 19 I do. 20 Q All right. What was it? 21 A Pardon me, sir? 22 Q Okay. 23 A Let's start again. 24 Q Let's start again. Okay. You're on the 25 same team as Fabrizio, right, on the surveillance of KANABAY COURT REPORTERS 388 1 Mr. Prince? Same team. 2 A Yes. 3 Q Okay. Well, let me ask you, during the 4 course of this investigation, did you ever call him 5 on the cell phone and tell them where they could find 6 Mr. Prince? 7 A Yes, sir. 8 Q Did you ever say, "Hey, listen I think if 9 you go to Maccabees in the African American section 10 of town you may run into him"? 11 A I could have. 12 Q Okay. Did you ever tell them he might be 13 at Wilson's liquor store with his fiancee and maybe 14 that's where you can go and surveil him? 15 A Again I can't -- I don't recall that 16 specifically, and I would have if I had known. 17 Q Okay. And there were times when you saw 18 Mr. Prince coming from Clearwater Beach, for example, 19 and you would get on your cell phone and tell 20 Fabrizio which way he is headed? 21 MS. WARDELL: Objection. Leading. 22 THE COURT: Sustained. 23 BY MR. DEVLAMING: 24 Q Would you have contacted with Mr. Fabrizio 25 about how they could find Jesse Prince? KANABAY COURT REPORTERS 389 1 A Yes. 2 Q All right. And would he call you on 3 occasion, or was he mostly the one doing the 4 surveillance? 5 A Say that to me again, sir. 6 Q Okay. Would you call Fabrizio and say, 7 "This is where you can find Prince," or would 8 Fabrizio call you and say, "Brian, this is where you 9 can find Prince," or vice versa? The same. 10 A Sometimes I would call him. Sometimes he 11 would call me. 12 Q Do you know a Brian Gaston -- excuse me, 13 Barry Gaston? 14 A Yes, sir. 15 Q And what do you know him to be? 16 A A private investigator. 17 Q And did you meet him in regards to this 18 investigation? 19 A Yes, sir. 20 Q Did you debrief him? 21 A Yes, sir. 22 Q Did you ever have meetings at the end of 23 the day where he would talk about his ability to 24 surveil Mr. Prince and what he learned? 25 A Yes. KANABAY COURT REPORTERS 390 1 Q All right. Sometimes you'd meet at 2 Eckerd's parking lot? 3 A Yes, sir. 4 Q All right. And would you do this almost 5 every day that Gaston was in town? Would you have 6 some sort of debriefing every time he was in town? 7 A There would usually be some sort of a 8 debriefing. 9 Q And then you would report back to Mr. Shaw 10 or -- 11 A Yes, sir. 12 Q -- the liaison? 13 A Uh-huh. 14 Q Was again Shaw the intermediary that got 15 Fabrizio and you together? Would you call him the 16 intermediary? 17 A I believe he was the person who told me 18 that Fabrizio and Gaston had been hired. 19 Q Okay. So Mr. Shaw is telling you that 20 Gaston now may be able to help out. Fabrizio may be 21 able to help out. That's where you learned of their 22 two names, and then you worked together? 23 A Yes, sir. 24 Q If I asked you what your surveillance car 25 looks like, would you tell me? KANABAY COURT REPORTERS 391 1 A I wouldn't be able to. 2 Q You use all kinds of different ones? 3 A Yes, sir. 4 Q All right. Did you surveil Mr. Prince's 5 house during this time period to see him leave in the 6 morning? 7 A I have. 8 Q Did you specifically surveil Mr. Prince's 9 home on April 11, 2000, when he was arrested? 10 A I don't think he was arrested in April. 11 Q I'm sorry. My eyes are so bad. I'm 12 looking back there. August. 13 A August 11th? 14 Q Yes, sir. 15 A I'll tell you exactly how that happened. I 16 do what you call drive-bys. My house is not in 17 Clearwater, so when I'm driving into Clearwater I 18 will drive by someone's house who is involved with 19 Mr. Prince at the Lisa McPherson Trust and just 20 observe what cars might be there, who's involved. 21 The morning of August 11th I saw a Largo 22 police car drive down the street on Belleair right by 23 Mr. Prince's house. And the officer turned his head 24 to look at the property, and I thought to myself I've 25 never seen a Largo police officer on Belleair before. KANABAY COURT REPORTERS 392 1 So I pulled over a little bit up the road and saw 2 that officer turn around and come back, and I assumed 3 there would be -- I've spent thirty years in this 4 business. I was a special agent in the Drug 5 Enforcement Administration. And I assumed that there 6 would be an arrest taking place sometime. So I drove 7 around the block, put up my camera and they pulled 8 in. 9 Q That lucky? 10 A Yeah. 11 Q Okay. All right. If I show you what's 12 been marked as Defense Exhibit -- this is going to 13 be -- what is my next one? 14 THE CLERK: NO. 5. 15 BY MR. DEVLAMING: 16 Q Marked for identification or it will be as 17 NO. 5. It says Brian Raftery tape. If it will help 18 you so we can save time, this was provide by your 19 attorney to me. Did you make a videotape of the -- 20 of your surveillance that day? 21 A Yes, sir. 22 Q Okay. Your Honor, at this time I would 23 offer into evidence Defense Exhibit NO. 5 at this 24 time. 25 THE COURT: Any objection, State? KANABAY COURT REPORTERS 393 1 MS. WARDELL: No, sir. 2 THE COURT: Be received. 3 MR. DEVLAMING: Okay. 4 BY MR. DEVLAMING: 5 Q Just so you know, Mr. Raftery, I have 6 played a portion of that already to this jury, and if 7 we were to watch the whole thing, it starts out with 8 basically you hitting the record button and basically 9 waiting, and occasionally you'll zoom in, but then 10 sometimes there's no activity, nobody's coming out of 11 the door. Do you remember that? 12 A Yes. 13 Q Okay. And after quite a bit of period of 14 time you eventually see Mr. Prince come out, correct? 15 A I haven't watched it since the day I took 16 it, so -- 17 MS. WARDELL: Judge, I would object. 18 The video speaks for itself. He can play it 19 or play it later. Play it now or play it 20 later, but there's no need to ask him what's 21 on the video. 22 MR. DEVLAMING: Well, I'm just laying a 23 predicate, Judge. 24 THE COURT: Overruled. 25 BY MR. DEVLAMING: KANABAY COURT REPORTERS 394 1 Q My question to you, Mr. Raftery, is when 2 you watch this video you zoom right in to make sure 3 you get every aspect of Mr. Prince in handcuffs. Did 4 you give that tape to Mr. Shaw so the Scientologists 5 could see it? 6 A I gave the tape to Mr. Moxon. 7 Q And were you careful to make sure that you 8 got as much of the footage of Mr. Prince in handcuffs 9 and being arrested as you could? 10 A What I did was I was careful to include 11 everything that took place. 12 Q We hear a cell phone go off on that tape. 13 Do you remember that? 14 A No, sir. 15 Q Okay. You don't remember a cell phone 16 where you say, "Not now"? Does that sound familiar? 17 A If the cell phone had gone off, I would 18 have said that, yeah. 19 Q Okay. You did not want to be disturbed 20 when you were videotaping this man being placed in 21 custody? Is that what you're saying? 22 A I'm saying that it could have been my son, 23 it could have been my mother calling me, it could 24 have been -- I don't know who's on there, but I know 25 it's being recorded and I didn't want whatever the KANABAY COURT REPORTERS 395 1 conversation was on the tape. 2 Q When you first -- when you were meeting 3 with Gaston, did you tell Gaston a little bit about 4 Mr. Prince? Did you tell him about some of his 5 habits and a little bit about him? 6 A Yes, sir. 7 Q Was it you that showed a picture of Jesse? 8 You know if you showed Mr. Gaston -- 9 A I don't remember doing that. 10 Q Okay. You don't recall telling Mr. Gaston 11 that Jesse is a chronic alcoholic? 12 A I could have used those words. 13 Q You've just told us how long you've been 14 involved in surveillance and law enforcement work. 15 In fact, you worked for the United States government. 16 Let me ask you, Mr. Raftery, would you ever bring 17 alcohol during the course of an investigation to a 18 chronic alcoholic? 19 A Would I bring alcohol to a chronic 20 alcoholic. 21 Q Yes, sir. If you were investigating him 22 and you went to his home? 23 A Perhaps I would. When you go to someone's 24 home it's customary to bring something. 25 Q How about flowers? KANABAY COURT REPORTERS 396 1 A Flowers are a good idea also. 2 Q What is your hourly rate? 3 A Sixty dollars an hour, sir. 4 Q You bill on the basis of an hourly week? 5 A Yes, sir. 6 Q How many? 7 A Sixty. 8 Q For this client? 9 A Yes, sir. 10 Q If my math is right, that's $187,200 a year 11 roughly? 12 A I'm a college graduate. I was a captain in 13 the marine corp. 14 Q I'm not saying you're not worth it. 15 A I was a supervisor in the DEA. 16 Q I'm not saying you're not worth it, 17 Mr. Raftery. Sixty hours a week is probably more 18 than I put in. So, I mean -- and would you say you 19 get paid a guaranteed sixty hour week? 20 A Yes, sir. 21 Q Okay. Can you put in for more than sixty? 22 A Not usually. What I'll do is just take a 23 little comp time if I can. 24 Q After the arrest of Mr. Prince, did you 25 call Detective Howard Crosby up? KANABAY COURT REPORTERS 397 1 A There's some confusion on this. I read 2 Officers Crosby's report, his deposition. 3 Q You read his deposition? 4 A Yes, sir. And in the deposition he said 5 that I called him and suggested something that -- 6 charging Jesse with something. I forget. Something 7 about a school distance. That wasn't me. I did not 8 make that phone call. 9 Q Did you call him repeatedly during the 10 course of this investigation? 11 A I called him frequently, especially in the 12 beginning. 13 Q What -- 14 A It was difficult to locate the officer. He 15 had days off. He had schools. He left the area. 16 There's only one narcotics officer in Largo. So in 17 order to begin the case to get he and Barry together 18 and so forth, it was quite difficult. I called a 19 number of times. 20 Q How many times do you think you talked to 21 him? 22 A I talked to him a lot less than I called 23 him. I would get the answering machine or I would 24 just leave a message at the desk or something. 25 Q So there were several times he could KANABAY COURT REPORTERS 398 1 recognize your voice. He would know it was 2 Brian Raftery -- 3 MS. WARDELL: Objection as to what he 4 believes another witness can do. 5 THE COURT: Sustained. 6 MR. DEVLAMING: That's fine. That's 7 all. Thank you, your Honor. 8 THE COURT: Any cross? 9 MS. WARDELL: No, sir. 10 THE COURT: Sir, you're still under -- 11 I'm sorry. Do the jurors have any 12 questions? Sir, you are still subject to 13 subpoena, so you must -- you know, if we 14 need you, you must return. At this time, 15 however, you may step down. 16 Ladies and gentlemen of the jury, I do 17 believe before seven o'clock we can get one more 18 witness in. That might make it little slower 19 come tomorrow. Would you all like to do that? 20 A little better come tomorrow rather. All 21 right. Are you prepared to call your next 22 witness at this time, Mr. DeVlaming? 23 MR. DEVLAMING: I am. 24 THE COURT: Please call your next 25 witness. KANABAY COURT REPORTERS 399 1 MR. DEVLAMING: I call Joseph Fabrizio. 2 * * * * * * * * * * * * * * * * * * * * * * * * 3 Whereupon, 4 JOSEPH FABRIZIO, 5 the Defense witness herein, being first duly 6 sworn upon oath, was questioned and testifies as 7 follows: 8 THE COURT: Sir, you may proceed. 9 DIRECT EXAMINATION 10 BY MR. DEVLAMING: 11 Q Good afternoon. 12 A Good afternoon. 13 Q Would tell the jury your name, please. 14 A Joseph C. Fabrizio. 15 Q Would you spell your last name for the 16 court reporter. 17 A F-as in Frank-a-b-r-i-z-i-o. 18 Q Mr. Fabrizio, tell us what you do for 19 living? 20 A I'm president of J.F. Charles and 21 Associates Incorporated in Tarpon Springs. 22 Q Okay. You have a little bit of a soft 23 voice. So I'm okay, but I'm not so sure it carries 24 that well, so I'm going to ask you just speak up a 25 little bit. KANABAY COURT REPORTERS 400 1 A I'm president of J.F. Charles and 2 Associates Incorporated. 3 Q Okay. What is that? 4 A It's a private investigative agency. 5 Q And are you former law enforcement? 6 A Yes. I spent twenty-five years in law 7 enforcement. I retired July 31, 1992, as a 8 detective. 9 Q New Jersey? 10 A In New Jersey, yes. 11 Q When you came down here to Florida you 12 started an investigative agency? 13 A Yes, I did. August 5, 1993. 14 Q Are part of your duties as a private 15 investigator sometimes surveillance? 16 A Yes. 17 Q Were you approached to do some work as 18 related to a Jesse Prince in the year 2000? 19 A Yes, I was, by law firm Moxon and Kobrin. 20 Q And do you know who their client was? 21 A I didn't ask them at the time. I was -- as 22 far as I was concerned, they were my client. 23 Q Okay. Who do you understand their client 24 to be now? 25 A I believe it's the church. KANABAY COURT REPORTERS 401 1 Q Which church? 2 A The Church of Scientology. 3 Q And did you have discussions with that law 4 firm about what the objective was in investigating 5 Mr. Prince? 6 A Yes. 7 Q All right. And what was that objective? 8 A There was several. We were basically 9 concerned about the security of the members of the 10 congregation and the staff, and also we were 11 attempting to obtain information that would impeach 12 his credibility with respect to future litigation. 13 Q Specifically did it have to do with a 14 wrongful death case, the Lisa McPherson case? 15 A Quite frankly, I'm not sure. 16 Q Okay. Did you have a meeting to make a 17 decision on strategy, that is, how you could 18 accomplish this goal of gaining this information? 19 A A meeting with whom? 20 Q Well, meeting with either Moxon's law firm 21 or with church members or anything like that? 22 A With Kendrick Moxon, yes. 23 Q Okay. And in your discussions with him was 24 it determined that it would be best to find an 25 African American private investigator to help you? KANABAY COURT REPORTERS 402 1 A Yes. That was my decision. 2 Q And did you feel that it would be easier to 3 be able to look at Mr. Prince's life, so to speak, if 4 you had somebody that could get closer to him because 5 of that situation? 6 A Actually, at that point in time the only 7 reason I hired a black investigator is because we 8 were working -- we were going to be working in a 9 potentially black area. Actually it's an all black 10 area. So anyone white and black would be immediately 11 suspected as a salt and pepper team. So I chose to 12 use Barry Gaston. 13 Q Okay. Gaston came into town -- and I'm 14 trying to save some time because we've been here all 15 day and some of this has come out already. And on -- 16 you had your first meeting with him about 17 February 7th of 2000? 18 A We started February 7. I had -- I spoke -- 19 I believe it was latter -- the latter part of 20 January, early February. 21 Q Okay. But specifically on February 7 you 22 met with a Jim Leigh, L-e-i-g-h, at Perkins 23 restaurant along with Mr. Gaston? 24 A That's correct. 25 Q All right. And did you early in the KANABAY COURT REPORTERS 403 1 investigation bring any photographs so Gaston could 2 know who the individual was that was the subject of 3 this investigation? 4 A Oh, yes. 5 Q All right. 6 A They were not actual photographs. They 7 were colored Xerox copies. 8 Q Was it of full body or was it of 9 Mr. Prince's face? 10 A It was a full frontal shot. 11 Q Full facial shot? 12 A A full frontal facial shot. 13 Q Okay. And did Mr. Gaston study it? 14 A Yes, he studied it. 15 Q Okay. Now from February 7 till April 1, 16 which is the first time Mr. Gaston had actually come 17 in contact with Mr. Prince, were you working -- were 18 you the main PI that was working with Mr. Gaston when 19 he would come into town for surveillance? 20 A He subcontracted with me, so he was my eyes 21 and ears. 22 Q Okay. So you were the -- okay, good. He 23 was your eyes and ears, so he would report to 24 Joseph Fabrizio each time he was in town and report 25 to you what he learned, correct? KANABAY COURT REPORTERS 404 1 A Correct. 2 Q All right. And from February 7 to April 1, 3 you would send him out to different places, but at no 4 time did he ever see Jesse Prince at this bar 5 Maccabees or in this section of town; is that 6 correct? 7 A If you're talking about the first section, 8 Greenwood -- 9 Q Yes. 10 A -- where Maccabees is. 11 Q Yes. That is -- what I just said is 12 correct? 13 A Yes. 14 Q All right. But he ended up being able to 15 meet with him at Wilson's; is that right? 16 A Actually Jesse met -- approached him, and 17 was. 18 MS. WARDELL: Judge, I would object. 19 This witness is testifying to what he's read 20 about what another witness said. He has no 21 personal knowledge. 22 THE COURT: Your objection is hearsay? 23 MS. WARDELL: Hearsay and no personal 24 knowledge. 25 THE COURT: Lack of personal knowledge. KANABAY COURT REPORTERS 405 1 Any response? 2 MR. DEVLAMING: No. 3 THE COURT: Sustained. 4 MR. DEVLAMING: Okay. 5 BY MR. DEVLAMING: 6 Q When Mr. Gaston would do what Mr. Gaston 7 was doing, did you specifically discuss with Gaston 8 what he could and could not do, in other words, what 9 boundaries he had? 10 A I do that with every investigator. 11 Q Okay. Are you aware, Mr. Fabrizio, that on 12 fifty occasions that Mr. Gaston took the Fifth 13 Amendment in this court? 14 A No, I'm not. 15 MS. WARDELL: Objection. It's improper 16 to ask one witness to comment on the 17 testimony of another. 18 THE COURT: Sustained. 19 BY MR. DEVLAMING: 20 Q Okay. Were you talking daily, at least 21 once a day, to Mr. Gaston when he was in town doing 22 his surveillance work on Mr. Prince? Would you talk 23 to him at least once a day? 24 A I would say approximately. That's not 25 something I would keep track of if I spoke once or KANABAY COURT REPORTERS 406 1 more than once or less than once or not at all. 2 Q So you're saying there are days that he 3 came into town and did work and you had no contact 4 with him? 5 A No. I said that on -- you didn't make 6 yourself clear. I mean, are you asking me on the 7 days he came into Clearwater to work, or any day in 8 particular? 9 Q No. The days he came into town to do work, 10 would you see him at least once during that time? 11 A Yes, I would. 12 Q Was there any discussion between you and 13 Mr. Gaston about Gaston getting into, that is being 14 able to get into, Mr. Prince's house? 15 A No, that never came up initially. 16 Q How about after? How about after April 1 17 but before April 15, were there any strategy reasons, 18 I mean, discussions about getting into the Prince 19 house? 20 A There was no discussions at that point in 21 time that I could recall. 22 Q Did you know, Mr. Fabrizio, that he was 23 going to be going to the Prince residence and did on 24 April 15th of 2000? 25 A He had called me on the cell phone and told KANABAY COURT REPORTERS 407 1 me, and I gave him instructions to do whatever he 2 felt comfortable with. 3 Q Did you also tell him that if he ever saw 4 any drugs that he was not to do any investigation 5 thereafter until it specifically involved a law 6 enforcement officer that could give him direction? 7 A I said if he was an invited guest into the 8 house and he observed anything illegal, that illegal 9 activity could be reported to me. 10 Q Okay. To you. My question to you is when 11 that occurred was law enforcement immediately 12 supposed to be contacted so that they could get a 13 handle on and directly supervise Barry Gaston? 14 A I had indicated that at the point in time 15 it becomes criminal, that's our obligation. It's 16 actually mandated that we report these -- our 17 findings and or observations to the police 18 department, and that was done by Brian Raftery and 19 Barry Gaston. 20 Q Okay. You're still not answering my 21 question. Maybe I'm not making it clear. Did you 22 then tell Gaston that once he involved law 23 enforcement he was not to go and conduct any further 24 investigation that involved drugs unless Crosby was 25 involved, law enforcement was involved? KANABAY COURT REPORTERS 408 1 A I told Mr. Gaston that at the point in time 2 it was criminal and the police were involved that he 3 was not to enter the house. 4 Q Okay. And you since found out that he did, 5 correct? 6 A I -- I -- you would have to be more 7 specific. I mean, this happened a long time ago and 8 so I'm being honest with you. You have to be more 9 specific. 10 Q Let's be real specific. 11 A Okay. 12 Q April 24, 2000, is when Gaston became a 13 confidential informant. 14 A Yeah, he was a CI. 15 Q Okay. My question to you is was he 16 supposed to go in to the Prince house any time after 17 he became a confidential informant unless it was 18 under the supervision of Largo Police Department? 19 MS. WARDELL: Asked and answered. 20 THE COURT: Overruled. 21 THE WITNESS: I beg your pardon? 22 MR. DEVLAMING: The judge says you can 23 answer it. 24 THE WITNESS: He was not supposed to. 25 He was not instructed to go into the house KANABAY COURT REPORTERS 409 1 unless he was with the undercover officer. 2 MR. DEVLAMING: Thank you. That's all 3 I wanted. Thank you. That's all I have. 4 THE COURT: That's all you have? All 5 right. Any cross? 6 MS. WARDELL: No, sir. 7 THE COURT: Sir, you may step down. 8 You are still under subpoena. 9 THE WITNESS: Okay. 10 MR. DEVLAMING: Judge, I could call a 11 real quick one. 12 THE COURT: All right. Let's do it. 13 MS. WARDELL: Wait a minute. Who? 14 MR. DEVLAMING: May I have a moment. 15 THE COURT: One moment. 16 MR. DEVLAMING: Your Honor, at this 17 time the Defense would move into evidence 18 Defense Exhibit 2-A through I, which report 19 to be photographs of Mr. Prince's house and 20 lanai area. 21 THE COURT: All right. And any 22 objection? 23 MS. WARDELL: No. Let's just get the 24 date they were taken on the record. 25 MR. DEVLAMING: Judge, on the back of KANABAY COURT REPORTERS 410 1 each one says August 14, 2000. 2 THE COURT: Okay. Anything else? 3 MR. DEVLAMING: Well -- 4 THE COURT: Basically are you objecting 5 to these? 6 MS. WARDELL: No. 7 THE COURT: They shall be received 8 then. 9 MR. DEVLAMING: All right. Your Honor, 10 at this time I would offer into evidence 11 Defense Exhibit NO. 3 marked for 12 identification which is the pot that was 13 shown to the seizing officer. 14 THE COURT: Any objection? 15 MS. WARDELL: No, sir. 16 THE COURT: Also received. 17 MR. DEVLAMING: Judge, at this time I 18 think we can -- that was that one fast 19 witness I told you about, so -- 20 THE COURT: Okay. All right. Ladies 21 and gentlemen, at this point in time I think 22 it's a good place for us to break and we 23 shall start early in the morning. Well, not 24 early actually. Ten o'clock is when I'm 25 looking forward to starting. You all -- ten KANABAY COURT REPORTERS 411 1 o'clock. All right. Here's the thing. We 2 might -- I'll tell you what, if you will be 3 here, please, by like nine-fifteen because 4 it's my intent maybe to start at 5 nine-thirty. 6 Now, don't be disappointed if we start at 7 ten. There's -- we may have to start at ten. 8 Okay? If you all could please be here by 9 nine-fifteen and the bailiff will tell you where 10 to report and we shall ask you all to have a 11 good night. 12 MS. WARDELL: Judge, may we approach 13 before you release -- 14 THE COURT: Oh, one more thing. Make 15 sure that you -- please approach anyway. 16 Make sure that you read no reports, don't 17 look at the TV, you can't look at the paper. 18 If you get the paper, I ask that you don't 19 read it until this trial is over. Do you 20 understand? Did you need to approach for 21 any other reason? 22 MS. WARDELL: I just wanted to remind 23 you of that. 24 THE COURT: Okay. All right. Thank 25 you very much. We shall see you all in the KANABAY COURT REPORTERS 412 1 morning. 2 (OUTSIDE THE PRESENCE OF THE JURY) 3 THE COURT: For the attorneys, do we 4 anticipate any special instructions that may 5 be presented to the jury? Are you going to 6 be seeking an entrapment defense instruction 7 on this one, Mr. DeVlaming? 8 MR. DEVLAMING: I don't know yet, 9 Judge. 10 THE COURT: You're not sure yet? 11 MR. DEVLAMING: No. 12 MS. WARDELL: Okay. Just the last 13 issue of Oliver now. 14 THE COURT: What time do you anticipate 15 he'll be here? 16 MS. WARDELL: Because, like I said, 17 that's going to be the proffer. 18 THE COURT: We need to proffer 19 Mr. Oliver. 20 MS. WARDELL: Right. And then I'm 21 going to argue whether or not it's 22 admissible. 23 THE COURT: Have you already -- do 24 you -- you don't need to depose him. You've 25 got whatever he did in the last trial. KANABAY COURT REPORTERS 413 1 MS. WARDELL: I'll waive deposing him 2 because I've got an idea what he is going to 3 say, so I don't want to take the time to do 4 that. 5 THE COURT: Are you at this time 6 telling me that you will be objecting to his 7 testimony? 8 MS. WARDELL: I would like to hear what 9 he has to say. 10 THE COURT: Okay. But you don't need 11 to depose him? 12 MS. WARDELL: No, sir. 13 THE COURT: So you know what he is 14 going to say -- 15 MS. WARDELL: I'm anticipating what 16 he's going to say and I'm anticipating an 17 objection, but I would like to hear it. I 18 would like the Court to hear it. 19 THE COURT: Well, let me ask you a 20 better question. Is there some way you can 21 just tell me what you think he is going to 22 say that you were objecting to? 23 MS. WARDELL: Yes, sir. 24 THE COURT: Okay. What is that? 25 MS. WARDELL: I think that he is -- I KANABAY COURT REPORTERS 414 1 think he is going to testify to certain 2 practices. I think he is going to interpret 3 religion that he believes to exists within 4 the Church of Scientology. 5 THE COURT: So he is going to go into 6 the policy, I believe, I heard of what's 7 called "fair game?" 8 MS. WARDELL: Right. And I would like 9 to, after he testifies as to what he 10 believes it is and what he believes the 11 impact it has had on this particular 12 defendant, I would like to voir dire him on 13 his qualifications to make that opinion. 14 Because I would point out to the Court and 15 let you know where I'm going ahead of time, he 16 was only a member for approximately a year. 17 September '87 to around January '88, then again 18 February '91 to November '91. So he was really 19 only a member in the church for about a year, 20 and his membership is almost now ten years 21 stale, and it would be my position that anything 22 he learned or gleaned with regards to the church 23 policy back then is too remote in time and too 24 old. 25 If they want to bring a defector from a KANABAY COURT REPORTERS 415 1 year ago, two years ago, six months ago, maybe 2 three years ago to come in and talk about what 3 current fair game is or is not, then that's a 4 different story. But they're bringing somebody 5 that defected or left the church ten years ago. 6 And again, that's my first reason, that he 7 is too remote in time; number two, that any 8 testimony that he would provide would be a 9 comment on a religious belief as specifically 10 prohibited by 90.611. I got a couple cases on 11 that if you want to see them tonight -- 12 THE COURT: I would like to see them 13 tonight. 14 MS. WARDELL: -- and think about it. 15 And I apologize I only brought one. I'll 16 give the cite and bring it to you. 17 MR. DEVLAMING: That's fine. 18 MS. WARDELL: So like I said, I think 19 that all of the testimony is going to end up 20 being a comment on a specific religious 21 belief, and that's expressly prohibited. 22 My number three reason for excluding him is 23 that he would basically be commenting on the 24 credibility of what has really now turned into a 25 defense witness, but a witness nonetheless. By KANABAY COURT REPORTERS 416 1 talking about fair game and the ties with the 2 church, you're basically impeaching the church, 3 if you will, and one witness commenting on the 4 credibility of another witness is absolutely 5 prohibited. You follow what I'm saying. 6 THE COURT: I follow what you're 7 saying. Okay. You got some case for me? 8 Mr. DeVlaming, I assume you have some also? 9 MR. DEVLAMING: Well, I'll tell you, 10 Judge, really what I was looking for was -- 11 I think it would help you if you read the 12 proffer which is going to be identical that 13 we did in front of Judge Morris. It's not 14 going to change, and I think it would just 15 be a springboard. 16 THE COURT: Do you happen to have it? 17 MR. DEVLAMING: Well, I'm looking for 18 it. 19 MS. WARDELL: I got it if he doesn't, 20 Judge. 21 MR. DEVLAMING: Do you, Lydia? 22 THE COURT: Do you happen to have a 23 copy of it? 24 MS. WARDELL: I do for you, Judge. 25 MR. DEVLAMING: Did you have one? KANABAY COURT REPORTERS 417 1 Because I have one. Let me just take a 2 quick look. Mine is unmarked. 3 THE COURT: Yours is marked. 4 MR. DEVLAMING: Un. 5 THE COURT: Unmarked? May I have it, 6 please? 7 MR. DEVLAMING: Yes. 8 THE COURT: Okay. All right. You have 9 no particular case law, though, 10 Mr. DeVlaming; is that accurate? 11 MR. DEVLAMING: No, Judge. I have 12 argument. I may have something in the 13 morning, but I don't think you're going to 14 find anything that talks about religion 15 itself. 16 THE COURT: Is there anything else I 17 need to address before morning? We never 18 did get to the question on special 19 instructions. At this point we don't have 20 an answer to that; is that correct? 21 MR. DEVLAMING: I'm not anticipating 22 any, Judge. 23 THE COURT: Okay. 24 MS. WARDELL: That leaves us with 25 Emmons and then whether or not I'm going to KANABAY COURT REPORTERS 418 1 call rebuttal, correct? 2 THE COURT: Whether or not you'll call 3 any -- well, Emmons and possibly -- and 4 maybe Mr. Oliver and possibly one other 5 person. 6 MS. WARDELL: I didn't mean -- 7 MR. DEVLAMING: She meant Oliver. 8 MS. WARDELL: Oliver in my rebuttal. 9 Emmons I think -- Emmons was going to do all 10 those predicates, and I just said fine. 11 MR. DEVLAMING: And I'm going to talk 12 to my client tonight about being a witness. 13 THE COURT: Okay. If there is nothing 14 else, then we stand in recess. I'd ask you 15 all to be here by nine-thirty and that we 16 may put that gentleman on the stand at 17 nine-thirty if necessary to hear his 18 proffer. Okay? 19 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 20 END OF TRIAL DAY ONE 21 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 22 23 24 25 KANABAY COURT REPORTERS 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 510 1 you retrieved the marijuana from your coat pocket? 2 A No. I retrieved that marijuana from the 3 can. 4 Q I would ask you to turn your attention to 5 page 35. 6 A Unless I have my, you know -- 7 Q You were asked the question: 8 "When was the next time you saw that baggie 9 of marijuana?" 10 And you answered, "When he gave it to me." 11 I said. "When?" 12 You said, "The next day." 13 And I said "At the house?" 14 You said, "Uh-huh." 15 I said, "Where did you put it?" 16 You said, "In my coat pocket." 17 A Right. 18 Q Question: "Did you ever smoke it?" 19 "Yes." 20 "When was that?" 21 Answer: "Rinzy came by maybe a week later 22 and asked do we have some of that stuff." 23 A That's right. 24 Q Question: "And you went to your coat 25 pocket and got it out or where did you go to get it?" KANABAY COURT REPORTERS 511 1 A Yes, ma'am. You're right. Yes, ma'am. 2 Q You said, "It was in my coat pocket"? 3 A Uh-huh. 4 Q So basically, now I have three potential 5 sources for that marijuana. One is your coat pocket, 6 one is Mr. Prince going to the black tin, and the 7 third and the other one being that you went to the 8 black tin? 9 A Right. 10 Q You can't remember which? 11 A Right. I'm not going to -- 12 Q Is that because there was so much loose 13 marijuana around that you just can't remember where 14 you stored it when? 15 A No. I just remember when he came back the 16 next -- his next visit he came back and he asked did 17 we have anymore of that marijuana, and I got it out 18 the coat pocket. It never went back into my coat 19 pocket after that. 20 Q One way or the other, whether you got it 21 from the coat pocket or whether he got it from the 22 tin, you smoked a joint at that visit? 23 A Yes. 24 Q And that includes Mr. Prince holding the 25 cigarette and smoking it as well? KANABAY COURT REPORTERS 512 1 A Yes. 2 Q Now I want to talk about Mr. Trinidad's 3 third visit to your home. Okay? This is when you 4 had some out-of-town company, some friends from 5 Memphis? 6 A I remember -- I'm not saying it's the third 7 visit, but I will tell you that I had visitors from 8 out of town, yes, and he was -- 9 Q Okay. Regardless of what count visit it 10 is, that's the incident, the night I want to talk 11 about, Okay? 12 A Okay. 13 Q All right. Trinidad was invited over? 14 A Right. 15 Q And your girlfriends were already there? 16 A Yes. 17 Q And marijuana was at your home? 18 A Well, one of my friends had marijuana, yes. 19 Q And marijuana was smoked by yourself? 20 A Yes. 21 Q And your friends? 22 A Uh-huh. 23 Q And Mr. Prince? 24 A Right, and Mr. Trinidad. 25 Q And Mr. Trinidad. And that marijuana was KANABAY COURT REPORTERS 513 1 marijuana that was provided by your girlfriends? 2 A Yes, I would believe that one was. 3 Q And after smoking that joint you all left 4 to go to a bar or restaurant-type thing and then you 5 actually came back to your home, correct? 6 A Right. 7 Q And then at that point a second joint was 8 smoked? 9 A Right. 10 Q And that would have been -- Mr. Prince 11 smoked that joint, that second one? 12 MR. DEVLAMING: Can we have a date? 13 MS. WARDELL: She wasn't able to date 14 any of these. 15 THE WITNESS: I would say -- 16 MS. WARDELL: Yes? 17 THE WITNESS: Yes. 18 BY MS. WARDELL: 19 Q Okay. And you actually smoked it outside 20 by the pool, right? 21 A Right. 22 Q And at that time a marijuana plant was 23 outside at the pool area? 24 A Yes, I think it was. I think so, yes. 25 Q Okay. Now, I want to talk to you about the KANABAY COURT REPORTERS 514 1 first time that Mitch came to your home. You know 2 Mitch is a the member of law enforcement? 3 A Right. 4 Q Now again, I know you're not sure of the 5 dates, but that's what I want to talk about is his 6 first visit. Okay? 7 A Okay. 8 Q All right. Trinidad was present as well? 9 A Correct. 10 Q And you all -- I think, some beer was 11 offered or served? 12 A Right. 13 Q And do you recall marijuana being brought 14 out? 15 A Yes, ma'am. 16 Q And actually I think you're the one that 17 went and got it that time? 18 A Yes, ma'am. 19 Q And it was stored in that same black box? 20 A Yes, ma'am. It was the same that Rinzy 21 gave us. It was his friend, sorry. 22 Q The person you believed to be a friend? 23 A That I know was his friend, yes. 24 Q Other than that fact that he was in the bar 25 and socialized with you all, what makes you think KANABAY COURT REPORTERS 515 1 they knew each other? 2 A Because he was friendly with the people in 3 the bar. He knew them much better than we did. 4 Q But you only saw him on that one occasion, 5 right? 6 A The guy? 7 Q Right. The guy who handed you the 8 marijuana. 9 A Yes. 10 Q And I think you're the one that rolled the 11 joint in front of law enforcement? 12 A Yes. 13 Q And you all smoked it? 14 A Yes. 15 Q Including Mr. Prince? 16 A Yes. 17 Q And at this visit you allowed Mitch, which 18 is law enforcement, into your pool area? 19 A Yes. 20 Q And the marijuana plant was there at that 21 time? 22 A Yes, ma'am. 23 Q And at that time, unbeknownst to you, law 24 enforcement saw it, but you know Mitch saw it? In 25 other words, you knew Mitch was aware it was there, KANABAY COURT REPORTERS 516 1 you just didn't realize Mitch was law enforcement? 2 A Mitch never mentioned to me about a 3 marijuana plant. 4 Q Right. He didn't necessarily mention it, 5 but -- 6 A It was out there, yes, ma'am. 7 Q And he was out there? 8 A All I can say is it was out there. I don't 9 know what Mitch thought. 10 Q It wasn't concealed or hidden? 11 A No, ma'am. 12 Q Okay. Let's talk about your second visit 13 with Mitch. And again, you don't know the dates, but 14 it's close in time to Mr. Prince's arrest? 15 A Yes, ma'am. 16 Q And same thing, Trinidad and Mitch stopped 17 by? 18 A Yes. 19 Q Now, on this visit no marijuana was smoked? 20 A No. 21 Q You were actually out watering the plants 22 in the pool area? 23 A Yes. 24 Q And Mitch was in the pool area? 25 A Right. KANABAY COURT REPORTERS 517 1 Q At this point he commented on just your 2 plants in general, that you had a knack with plants 3 or something to that effect? 4 A Right, uh-huh. 5 Q And he observed your plants? 6 A Right. 7 Q And the marijuana plant would have been 8 there for him to observe? 9 A Yes, ma'am. 10 Q Now, you've known all along that it was a 11 marijuana plant? 12 A After awhile, yeah. 13 Q Well, more specifically -- 14 A As it grew. 15 Q You knew it was marijuana. Initially I 16 believe you said in the spring, but then you wanted 17 to clarify you were thinking June? 18 A Right. 19 Q Sometime late spring or earlier you knew 20 that plant was marijuana? 21 A In June. 22 Q June? 23 A July. 24 Q And you had a sprinkler system that watered 25 it when it watered all the other plants? KANABAY COURT REPORTERS 518 1 A Well, it's a little -- there was a 2 container there all along and the plant started 3 growing out of it. It wasn't my plant. It was 4 something that was left there, I believe to be the 5 rubber -- dead rubber tree that they just left, you 6 know. 7 Q The question is it got watered through the 8 sprinkler system? 9 A I would say, yes. 10 Q And -- 11 A If it got watered. 12 Q And it was in the sun? 13 A Yes. 14 Q And Mr. Prince knew it was there? 15 A Yes. 16 Q And you chose to let it grow? 17 A Yes. There was a whole lot of other ones 18 that we did not choose let grow. And we didn't let 19 them grow. I grow plants. 20 Q Well, let's talk about the ones you chose 21 not to let them grow. Those were smaller ones, 22 right? 23 A Yes, they were just -- if you look -- as I 24 started working, I wasn't out there a whole lot in my 25 lanai a lot. So you can go out there maybe on the KANABAY COURT REPORTERS 519 1 weekend or whatever and there is another one, and 2 Jesse would just throw them away. I don't know where 3 he put them. I threw mine in the garbage. 4 Q Okay. So my question was the ones you 5 threw away, either you or Mr. Prince threw away, were 6 smaller marijuana plants? 7 A Right. 8 Q And this bigger one you let grow? 9 A Right. 10 Q And both you and Mr. Prince are on your 11 deed? 12 A Yes, ma'am. 13 Q Okay. And is it fair to say Mr. Prince 14 pays the mortgage? 15 A Yes, ma'am. 16 Q And he uses the pool area? 17 A Yes. I pay the mortgage also. 18 Q Okay. You pay it jointly? 19 A Yes. 20 Q Okay. And you said earlier that he threw 21 them away, but more specifically they were thrown in 22 the garbage, right? 23 A I threw the ones -- I went out once and 24 pulled them out of some plants that was out there and 25 threw mine in the garbage as I throw eveyr other weed KANABAY COURT REPORTERS 520 1 in the garbage. 2 Q Okay. Now, at the time you threw this 3 marijuana plant in the garbage you had reason to 4 believe that Scientology was following either you or 5 Mr. Prince, correct? 6 A I know it, yes. 7 Q And you also had reasons to believe that 8 they were rummaging through your garbage? 9 A They had in Tennessee, yes. 10 Q You had reason to believe they might be 11 doing it here in Pinellas County as well? 12 Certainly -- 13 A They could do what they wanted to do. 14 Q But you wouldn't put is past them? 15 A I'm sorry? 16 Q You wouldn't put it past them? 17 A No, not at all. 18 Q Now, during this time frame you, never 19 called the police to talk about the growing marijuana 20 that was springing up, did you? 21 A No, ma'am. 22 Q And during this time frame were you 23 aware -- actually during -- what did you have now, 24 about a two-year relationship with Mr. Prince? 25 A Yeah, well, almost two years. KANABAY COURT REPORTERS 521 1 Q And you know Mr. Minton through the Church, 2 right? I mean, through the trust, right? 3 A Yes. 4 Q And you're aware that Mr. DeVlaming has 5 represented members of that trust? 6 A Yes. 7 Q And at any point when these marijuana 8 plants were springing up, did you call Mr. DeVlaming? 9 A No. 10 Q And are you aware that a private 11 investigator has been hired by the trust for 12 different reasons? 13 A Say that again. I'm sorry. 14 Q Have you ever heard the name Ray Emmons? 15 A Yes, ma'am. 16 Q And you're aware that he is an investigator 17 not only that was used in this case but that was also 18 used by the trust for other cases? 19 A I don't have knowledge of that. I have 20 been with the trust almost four months. I'm an 21 optician. I don't -- I just started with them, so 22 I'm just finding out that Ray is an investigator, 23 yes. But not in the past I didn't know Ray or what 24 he did. 25 Q Although your job at the trust has only KANABAY COURT REPORTERS 522 1 been a couple of months, Mr. Prince has worked with 2 the trust for quite sometime? 3 A Yes, ma'am. 4 Q And neither you or Mr. Prince called in a 5 private investigator to check out why these plants 6 were springing up? 7 A I didn't, no, ma'am. 8 Q And to your knowledge, as an individual 9 that you live with on daily basis, Mr. Prince didn't 10 either? 11 A To my knowledge, I don't know. 12 Q And is it fair to say that you and 13 Mr. Prince called this marijuana pets plants -- these 14 marijuana plants, quote, pets? 15 A I kept one, that one. 16 Q And you called it your pet? 17 A No, I never called it anything. 18 Q Okay. Did you ever hear Mr. Prince refer 19 to it as a, quote, pet? 20 A No. 21 Q Both times that Mitch, who you now know is 22 law enforcement, came to your home and saw the pool 23 area, Mr. Prince was present? 24 A Yes. 25 Q And there were times between April 7 an KANABAY COURT REPORTERS 523 1 August 6 that you and Mr. Prince smoked marijuana 2 when Trinidad was not present? 3 A There might have been an occasion. 4 Q And you had access to marijuana other than 5 that which was provided to you that night at Wilson's 6 by the person you believed to have been a friend -- 7 A No. That was from the same. 8 Q During that entire time frame? 9 A Yes. 10 Q Well, we've already talked about your 11 girlfriend bringing some. 12 A Right. And that same night Trinidad, 13 Rinzy, whatever his name is, had marijuana too. He 14 didn't just go mooching around. He brought liquor. 15 He brought marijuana. It was times where we didn't 16 answer the phone because he is -- I have to work. I 17 have to get up at seven in the morning to get to 18 work. I work in surgery. I can't party, you know, 19 when he wants to call and want to party. So we would 20 look on the ID box and we wouldn't even answer the 21 phone. 22 There are times that he wants to party or 23 whatever and come by, and there was one particular 24 case for the 4th of July we only wanted the people 25 that we worked with to be at our house, not Rinzy KANABAY COURT REPORTERS 524 1 because he definitely wasn't in our crowd like that. 2 So we told him we didn't have any -- we wasn't having 3 a cookout just to keep him from showing up. This guy 4 would call all the time. 5 Q Okay. My question was simply this: 6 Mr. Trinidad wasn't your sole source, if you will, of 7 marijuana. You got it from places other than 8 Trinidad? 9 A I got it from the guy in the bar. 10 Q And your friends? 11 A No, they didn't leave me any marijuana or 12 anything like that. She smoked a joint. 13 Q And you participated in that? 14 A Exactly. 15 Q Okay. 16 A And they were at my house maybe a day and a 17 half, two days and then flew out. 18 Q And prior to ever meeting Mr. Trinidad you 19 and Mr. Prince smoked marijuana? 20 A I have, yes. 21 Q And certainly Trinidad would not have been 22 the supplier of that marijuana? 23 A No. 24 Q Okay. 25 MS. WARDELL: That's all I have, Judge. KANABAY COURT REPORTERS 525 1 THE COURT: Mr. DeVlaming, did you wish 2 to participate? 3 MR. DEVLAMING: Just a few questions. 4 THE COURT: Okay. 5 CROSS-EXAMINATION 6 BY MR. DEVLAMING: 7 Q Miss Phillips, the relevant dates in this 8 case are May 7, August 6 and August 11. If I could 9 ask you, May 7 is the date that Mr. Trinidad brought 10 the police officer the first time, okay? 11 A Yes. 12 Q All right. On that date what was the 13 source of the marijuana that was smoked? 14 A That came from the guy at the bar. 15 Q Who was a friend of? 16 A Rinzy. 17 Q All right. And who's idea was it to bring 18 out the smoke on that date? 19 A Barry's. 20 Q Barry's. Barry Gaston's? 21 A Right. 22 Q All right. Now, on August 6 was the date 23 that once again Trinidad and Mr. Detective Crosby 24 came by and there was no marijuana smoking that day I 25 don't believe, but there was a plant on the lanai? KANABAY COURT REPORTERS 526 1 A Right. 2 Q Okay. Did you plant that plant? 3 A No, sir. 4 Q Did Jesse plant that plant? 5 A No, sir. 6 Q Do you know -- well, let me ask you this: 7 Did you -- well, do you know how it got there? 8 A No, sir. We joked about maybe the previous 9 owners or something. It was just, what is this, you 10 know? Especially that little one right there. 11 But -- and there were little things that they left. 12 So that happened to be in their pot, so we just joked 13 that their kids -- because they had kids too, you 14 know. 15 Q Okay. Now, of the plants that were on the 16 lanai, were any of them ever thrown out? 17 A Yes. 18 Q Pulled up and thrown out? 19 A Yes. 20 Q Did any of -- were there any other 21 marijuana plants that would thereafter grow back in 22 some plants? 23 A Yes. 24 Q Including the one that was in this pot with 25 the dead rubber tree plant that is Defendant's NO. 3? KANABAY COURT REPORTERS 527 1 A Yes. 2 Q All right. Did you plant that plant that 3 was later taken into evidence as Defendant's Exhibit 4 NO. 3? 5 A No, sir. 6 Q Did -- to your knowledge, did Mr. Prince 7 plant that plant? 8 A No, sir. 9 Q And would your answer be the same as to 10 August 11 when they actually arrested Mr. Prince, as 11 far as that singular plant on the porch, did you at 12 any time plant that plant? 13 A No, sir. 14 Q Did Mr. Prince plant that plant? 15 A No, sir. 16 Q Is there access to the lanai that somebody, 17 if they came from the street, could get to and plant 18 it if they wanted to? 19 A Yes, sir. Even if the screens weren't 20 weather worn, it's not like there's locks on my 21 doors. You can just open them. Each one, they're 22 not locked or anything. They are just normal screen 23 doors. You can't lock them. You can come in any 24 time. 25 Q In relation to the 25th of February 2000, KANABAY COURT REPORTERS 528 1 when you came to that house, how much time went by 2 before you realized that there was anything growing 3 of an illegal nature? 4 A Maybe in June, early spring. No, late 5 spring. It had to be later in the spring because we 6 didn't get there until the end of February, March, 7 April. I will say May, June. 8 Q But you can say, under oath, that neither 9 you nor Jesse planted that marijuana? 10 A Yes, sir, we did not plant that marijuana. 11 Q Okay. 12 MR. DEVLAMING: That's all. 13 THE COURT: All right. Thank you, 14 ma'am. 15 Jury instruction 1.02, standard 16 instruction, nothing to be changed on that, I 17 would say. 18 MR. DEVLAMING: Correct. 19 THE COURT: 2.01 also standard. 2.02, 20 the only amendment to that is to place the 21 defendant's name in there and the actual 22 nature of the offense. 23 MR. DEVLAMING: Mine has his name. 24 THE COURT: No, I'm saying the only 25 thing that was amended about it in this KANABAY COURT REPORTERS 529 1 original form is I added his name and the 2 offense, so that's also standard. 3 2.03, standard, nothing about that. 4 Now, 2.04, do you all -- up through five, I 5 think is standard. I think 2.06 came up in the 6 testimony -- not testimony. Number six came out 7 in the testimony; is that fair to say, 8 Miss Wardell? 9 MS. WARDELL: Yeah, I think six, seven 10 and eight. 11 MR. DEVLAMING: That's fine. 12 THE COURT: Number nine -- 13 MR. DEVLAMING: Does not apply. 14 THE COURT: -- does not apply. And -- 15 MR. DEVLAMING: Number ten does not 16 apply. 17 THE COURT: -- ten does not apply. So 18 we'll take nine and ten out. 19 The defendant not testifying, shall I read 20 that, sir? 21 MR. DEVLAMING: Yes, sir, both 22 paragraphs. 23 THE COURT: All right. And then the 24 defendant's statements. There were 25 statements alleged to have been made by him. KANABAY COURT REPORTERS 530 1 Shall I read that? 2 MR. DEVLAMING: Well, Judge, I don't -- 3 I don't -- I'm not asking for it only 4 because I think this applies to Mirandised 5 statements. 6 THE COURT: True. 7 MR. DEVLAMING: These were not 8 Mirandised, so -- 9 MS. WARDELL: I don't care. 10 THE COURT: Not read. 2.05 rules for 11 deliberation is standard. 2.07, the 12 cautionary instruction is standard. Now, 13 2.08 is amended because the first two 14 paragraphs in 2.08 tend to relate to 15 lessers. There is no lesser here. I didn't 16 give you the actual 2.08. I gave you just 17 the amended portion. That's only because my 18 computer's only got the amended. I can tell 19 you what it says. You want me to print that 20 up for -- 21 MR. DEVLAMING: No. You're right. 22 THE COURT: It's amended. And then 23 2.09 is also standard. 24 Now, the one that we need to talk about 25 really is the possession charge. I added the KANABAY COURT REPORTERS 531 1 defendant's name, and, of course, we changed it 2 to certain drugs, chemicals substances are known 3 as controlled substances. Marijuana is a 4 controlled substance. 5 Jesse Prince, Jr., possessed a certain 6 substance; that substance was marijuana. Jesse 7 Prince, Jr., had knowledge of the presence of 8 the substance. Then to possess is defined -- do 9 we need to -- I imagine the State is asking for 10 constructive and/or actual. 11 MS. WARDELL: Yes, your Honor. 12 THE COURT: All right. So we shall 13 read then A, B and C? 14 MR. DEVLAMING: Correct. 15 THE COURT: Now, note to judge, give 16 these next paragraphs if relevant, if 17 applicable. Do you all both want mere 18 proximity to a thing is not sufficient to 19 establish control over that thing when the 20 thing is not in a place over which the 21 person has control? 22 MR. DEVLAMING: Yes. 23 MS. WARDELL: I don't see how that's 24 relevant, but -- 25 THE COURT: I shall read it. KANABAY COURT REPORTERS 532 1 Constructive possession means the thing 2 that -- the thing is in a place over which 3 the person has control or in which the 4 person has concealed it. I shall read that. 5 Seems to me that that's part of what we are 6 talking about here. 7 Then the next one, if a thing is in a place 8 over which the person does not have control, in 9 order to establish constructive possession the 10 state must prove the person's, one, control over 11 the thing; two, the knowledge that the thing was 12 within the person's presence; and, three, the 13 knowledge of its illicit nature. I think that's 14 part of the defense here, so I believe I should 15 also read that. 16 Any comment on that? 17 MR. DEVLAMING: You're right. 18 THE COURT: Okay. State? Next one 19 possession may be joint, that is, two or 20 more persons may jointly have possession of 21 an article, exercises control over it, and 22 it seems to me that's going to be what the 23 State's going to argue, so there we go. 24 I'll think that should be read. 25 And then the next one, if a person has KANABAY COURT REPORTERS 533 1 exclusive possession of of a thing, knowledge of 2 its presence is inferred, and if the person does 3 not have exclusive possession, knowledge may not 4 be inferred -- or assumed rather. Okay? 5 MR. DEVLAMING: Right. 6 THE COURT: Seems to me that should be 7 read. Now, there's a note to the judge, and 8 here's the question, whether or not, 9 Mr. DeVlaming, you're going to be requesting 10 this. It says here, If the defendant seeks 11 to show a lack of knowledge as to the nature 12 of the particular drug, an additional 13 instruction may be required. I haven't read 14 Medlin. I need to read it, but are you 15 going to be asking for that? You need to 16 look at it? 17 MR. DEVLAMING: Yep. 18 THE COURT: All right. Tell me after 19 lunch. And this is -- one second. Anything 20 else? Did you find that note, 893.13(1)(g)? 21 MS. WARDELL: I don't have a (g), 22 Judge. 23 THE COURT: I don't either. Let me 24 check something. Okay. That's been removed 25 from the updated portion of the instruction. KANABAY COURT REPORTERS 534 1 MR. DEVLAMING: You mean number two? 2 THE COURT: Yeah. There is no number 3 two. It's been removed. I don't find it. 4 Do you all find it in your book? 5 MR. DEVLAMING: No, it's not. 6 THE COURT: All right. Now, does the 7 book still talk about Medlin? Does the book 8 still have a note to the court. I'm not 9 looking at the book. I'm looking at the 10 computer version. The updated version I 11 have doesn't even have that. 12 MR. DEVLAMING: Actually my 2000 book 13 or 2001 -- 14 THE COURT: Doesn't have it? 15 MR. DEVLAMING: No. It has both. It 16 has one and two. The 893.13(1)(g) and the 17 other one. 18 THE COURT: Does it say 893.13(1)(g)? 19 Do you find a 1(g)? 20 MR. DEVLAMING: No. 21 MS. WARDELL: I think that that new 22 case law about the state proving knowledge 23 that paragraph that has the one, two and 24 three that the Defense wants took the place 25 of what Medlin needed to accomplish. KANABAY COURT REPORTERS 535 1 Because you already said that I got to prove 2 the control, knowledge and the knowledge of 3 the illicit nature. That's that third 4 prong. 5 MR. DEVLAMING: I'll run down to the 6 library, Judge, as soon as our break comes. 7 THE COURT: All right, you all. I let 8 the jury out until one-fifteen? 9 MR. DEVLAMING: Yes, sir. 10 THE COURT: Okay. So it's now 11 twelve twenty-five. We have until 12 one twenty-five, and how much time do you 13 think you all need for closings? 14 MS. WARDELL: What is your ruling on -- 15 THE COURT: Oh, I'll try to ferret out 16 some of those questions before I come back. 17 Okay? Now, how much time you all think you 18 need for closing. 19 MR. DEVLAMING: Forty-five minutes. 20 MS. WARDELL: Wow. 21 THE COURT: That's a lot of time. 22 Forty-five? 23 MR. DEVLAMING: Yes, sir. 24 THE COURT: Do you need forty-five? 25 MS. WARDELL: I don't need it but I'll KANABAY COURT REPORTERS 536 1 take it. 2 THE COURT: All right. I'll tell them 3 it will be an hour and a half for closing. 4 MS. WARDELL: And I just would like an 5 opportunity to argue some of points on the 6 rebuttal. 7 THE COURT: Okay. Why don't you do 8 that now. 9 MS. WARDELL: If you want to take it 10 category by category, the questions about 11 her employment, I wouldn't have brought that 12 out in my case in chief. Like I said, I 13 limited it to the officer's observations 14 those three days and it didn't involve her. 15 THE COURT: I'm sorry. Say that again. 16 You were just going to limit it to what now? 17 MS. WARDELL: The question about her 18 being employed by the McPherson Trust, I 19 think that goes to her credibility and bias 20 in light of the issues raised by the defense 21 that this is basically the trust versus the 22 Scientology, and she is a member and not 23 only a member but now she's on salary at 24 $3,000 a month by that very trust. I 25 certainly wouldn't have asked that question KANABAY COURT REPORTERS 537 1 in my case in chief had I called her. 2 THE COURT: Do you get to ask that 3 question now since you are calling her on 4 your rebuttal and you're talking about her 5 bias? 6 MS. WARDELL: Right, well -- 7 THE COURT: I mean, you can't call a 8 person for the purpose of impeachment. So 9 what's the purpose of that question? 10 MS. WARDELL: Well, although I can't 11 call her solely for that purpose. If some 12 does exists, I'm entitled to show it. I 13 can't call a witness solely to present 14 impeach -- to impeach -- 15 THE COURT: Here's what I would prefer 16 that you do. Well, I'll tell you what, 17 that's fine. Go ahead. 18 MS. WARDELL: All right. I mean, in 19 other words, had I called her in my case in 20 chief that wouldn't have been an issue 21 because this whole Trust versus Scientology 22 wouldn't have been raised yet, but I am 23 entitled to impeach my own witness. I just 24 can't call them solely for that reason. But 25 anyway -- KANABAY COURT REPORTERS 538 1 THE COURT: There's no question you are 2 entitled to impeach your witness. You can't 3 call them solely for that, but if you call 4 the witness and the first thing you ask her 5 is an impeaching question, the question 6 would then raise the question I have in my 7 mind: What has she done to show the bias 8 that you're attempting to establish? 9 MS. WARDELL: Okay. I'll throw it and 10 move it to the end. 11 THE COURT: Go ahead. 12 MS. WARDELL: I'll be happy to move it 13 to the end after she says that Rinzy is the 14 one that introduced the marijuana. That -- 15 the questions about the alarm system didn't 16 become relevant until the Defense brought up 17 the theory that the marijuana was planted. 18 In my case in chief I don't care if she has 19 an alarm. 20 THE COURT: Well, here's the question: 21 Is the alarm system on the lanai? 22 MS. WARDELL: Well -- 23 THE COURT: Well, is it? I didn't hear 24 any testimony to that. 25 MS. WARDELL: Well, certainly I'm KANABAY COURT REPORTERS 539 1 allowed to argue that if you believe between 2 June and August somebody was coming in and 3 planting this marijuana wouldn't you have 4 done something to take care about it? And 5 actually I know the answer to that. 6 The answer to those were the sealed 7 portions of Miss Phillips' testimony, and as a 8 courtesy to Miss Phillips I didn't ask those 9 questions in the presence of some of the parties 10 that were here because of the concerns that were 11 raised, but I know where the alarm systems are, 12 and I'll be happy to have her say where they 13 are, but -- 14 THE COURT: Well, are they on the 15 lanai? 16 MS. WARDELL: On alarm -- you want me 17 to tell you right now? 18 THE COURT: Yeah. 19 MS. WARDELL: One -- the alarm from the 20 sliding glass bedroom door doesn't. 21 THE COURT: On the door -- let me be 22 real clear about my understanding of where 23 the evidence heads here. Everything is out 24 on the lanai, so access to all of the 25 planted drugs allegedly took place on the KANABAY COURT REPORTERS 540 1 lanai. Are you telling me that the screened 2 doors on the lanai have alarms? 3 MS. WARDELL: No. But what I'm telling 4 you is here these people sleep in a bedroom 5 where a sliding glass door separates them 6 between that and the lanai. If you think 7 somebody's creeping in through your broken 8 screen door and you sleep with only a piece 9 of glass that separates you and you don't do 10 anything to make it more secure? That's a 11 valid argument, Judge. For three months -- 12 THE COURT: And what does that rebut? 13 MS. WARDELL: That rebuts the fact that 14 they were set up. If they were set up, do 15 something about it. 16 THE COURT: Like what? Tell me what 17 evidence came out that that particular point 18 that you are at this time making rebuts. It 19 rebuts what? It is an argument that you're 20 attempting to make, but it doesn't rebut any 21 previous testimony. 22 MS. WARDELL: It rebuts the testimony 23 from Mr. Oliver that this whole thing was 24 fair game. It rebuts the testimony from 25 Gaston that they followed him, and followed KANABAY COURT REPORTERS 541 1 him, and followed him and set this up. It 2 rebuts the defense theory. Yeah, I got -- 3 THE COURT: So the fact that they 4 didn't do more -- I see. I think I 5 understand now. I hear you if this is what 6 I'm getting from you, if they were really 7 concerned about being followed, they would 8 have done some -- especially since they had 9 the plants -- 10 MS. WARDELL: Something -- 11 THE COURT: Let me finish. 12 MS. WARDELL: Sorry. 13 THE COURT: Especially since allegedly 14 these plants were being placed on -- and 15 they had reason to believe that somebody was 16 putting marijuana on the lanai, that then 17 they should have and maybe would have done 18 more to protect themselves or they were 19 placed on notice of the fact that somebody 20 was trying to set them up? Is that it? 21 MS. WARDELL: Something, Judge, during 22 that three-month period where -- they keep 23 interjecting the kids into this case. 24 THE COURT: I got it. All right. I 25 got it. KANABAY COURT REPORTERS 542 1 MR. DEVLAMING: At some point you would 2 think do something. 3 THE COURT: Okay. I understand. 4 MS. WARDELL: Don't just let the person 5 in. And the fact -- 6 THE COURT: Might I suggest to you that 7 maybe -- well, might I suggest that you ask 8 maybe just that question? I mean, I truly 9 believe in the direct approach because I 10 don't understand things unless I get them 11 sometimes. And it seems to me there's an 12 easier way to just ask it. You know, why 13 didn't you just do that? 14 MS. WARDELL: I did, but I have to set 15 it up. I have to set up that she had some 16 things in place -- 17 THE COURT: I gotcha. 18 MS. WARDELL: -- but she didn't take 19 advantage of them. 20 THE COURT: Okay. 21 MS. WARDELL: And I did ask that 22 question. And the same thing about the 23 screen door. You're going to tell me that 24 you knew you had a rip in the screen door 25 large enough for somebody to come through it KANABAY COURT REPORTERS 543 1 and you did nothing about it, yet you 2 thought somebody was slipping in planting 3 marijuana on your lanai? 4 THE COURT: Well, except for the point 5 she was making that the screen door doesn't 6 lock. So you don't really have to have it 7 ripped. 8 MS. WARDELL: It's still more of a -- 9 it's a security risk. And we're not talking 10 about a random member of the public. You're 11 talking about a former Scientologist who's 12 now a member of the trust. He certainly 13 knows and is aware of the supposed tactics 14 out there. 15 THE COURT: Okay. 16 MS. WARDELL: Okay? So that was my 17 reason for putting that one in there. You 18 know, the marijuana used at the bar on the 19 second visit with Mr. Trinidad, I think that 20 speaks for itself. 21 THE COURT: Well, what does it speak 22 to? 23 MS. WARDELL: Well, it speaks to the 24 fact that she says that a random white male 25 patron at the bar gave them marijuana and KANABAY COURT REPORTERS 544 1 that they voluntarily went outside to smoke 2 the marijuana. Voluntarily going outside to 3 smoke marijuana isn't the same as being set 4 up because of who you are. 5 She clearly said, "We knew before we went 6 outside it was for the purpose of smoking 7 marijuana." They weren't tricked to go into 8 some little room and then somebody whipped out a 9 joint. 10 THE COURT: Anybody actually said -- 11 did anybody actually testify, has there any 12 particular statements been made, that 13 Mr. Gaston, because he continued to take the 14 Fifth on this, was providing marijuana? And 15 the only person, frankly, that I believe 16 will testify to that is this person you're 17 getting ready to call. So the point really 18 of her testimony would be to rebut the 19 potential suggestion that somebody gave 20 Mr. Prince the marijuana as -- or maybe -- 21 MS. WARDELL: Well, I believe that the 22 inference was out there on the 23 cross-examination of Gaston, and the 24 inference is surely out there now that we've 25 heard what Mr. Oliver had to say, the KANABAY COURT REPORTERS 545 1 Scientologists will stop at nothing, 2 including providing marijuana. 3 And if Miss Phillips is going to say that 4 this random individual at the bar gave it, 5 that's fine. That's not Mr. Trinidad. She 6 thinks it's connected to him, and that's fine. 7 Let the Defense argue that. Let the Defense 8 argue that Trinidad gave them marijuana. 9 But, I mean, the bottom line is he could 10 take it or he didn't have to take it. And he 11 the whole point is they went outside knowing 12 that the point, the purpose, was to smoke the 13 marijuana. They weren't led to a room and then 14 it came out. 15 It was very clearly stated, "You knew 16 before you went out there what you were going to 17 do?" 18 "Yes, ma'am." 19 Keep going? 20 THE COURT: Yeah. 21 MS. WARDELL: The Defense several times 22 in opening and through both of my officers 23 crossed about, well, you didn't find any 24 rolling papers when you performed the search 25 of the warrant, you didn't find any KANABAY COURT REPORTERS 546 1 paraphernalia, you didn't find any drying 2 materials -- 3 THE COURT: Okay. 4 MS. WARDELL: -- you didn't find any of 5 these things. 6 THE COURT: I get that one. 7 MS. WARDELL: The defendant provided 8 the rolling papers. 9 THE COURT: I got it. Let's move on. 10 MS. WARDELL: The fact they smoked 11 marijuana before they ever even knew 12 Trinidad or even the fact that it's 13 introduced within a week of these two people 14 meeting each other. 15 THE COURT: And why is that important? 16 MS. WARDELL: That's important because 17 there's no way they can in any way link 18 Trinidad, Scientology or Raftery to the 19 person that they accepted that marijuana 20 from. That just goes to the heart of, you 21 weren't set up. You wanted to smoke it. 22 You smoked it in the past and you smoked it 23 again. And if you're so worried about being 24 set up and followed, why do you take 25 marijuana from a female that you meet within KANABAY COURT REPORTERS 547 1 a week? 2 The second visit to the home, Judge, that's 3 really important. It's important because during 4 her depo and even today -- 5 THE COURT: The second visit of whom? 6 Mitch or Trinidad? 7 MS. WARDELL: The second visit of 8 Trinidad where she says here that she went 9 and got the marijuana, then I reminded her 10 to go back to her depo, and she told me 11 Mr. Prince got the marijuana from the black 12 box. And then I showed her another point in 13 the depo where we were clearly talking about 14 that event where she said she got it out of 15 her coat pocket. 16 Why is that relevant? That's just more 17 marijuana. It just suggests that you had 18 marijuana in the house from a source other than 19 the person at the bar that gave it to you. At 20 some point that little bag of marijuana has got 21 to run out, and she talks about an awful lot of 22 joints. And I'll ask her, if you allow me to 23 call her -- in the depo she described it as a 24 small baggie of marijuana, and I should have 25 been more clear on that. KANABAY COURT REPORTERS 548 1 THE COURT: Let me ask you this: I'm 2 still missing where in the testimony it came 3 out, and you keep talking about the 4 inference. Tell me where the inference was 5 drawn that Mr. Gaston is the one who 6 actually provided this marijuana. I'm just 7 trying to figure out which witness gave that 8 testimony. 9 Now, I can tell you this much, I do recall 10 Mr. DeVlaming asking questions of Mr. Crosby 11 like, "Would you use that person again?" And I 12 understand that that might in some way indicate 13 that he was not doing something legal. And the 14 defendant continued to -- the witness, rather, 15 continued to take the Fifth. That too suggests 16 that he was not doing something legal. 17 But where is it and what testimony was 18 there that he, not the defendant but the 19 witness, was doing something -- was not doing 20 something legal? 21 MR. DEVLAMING: Well, first of all, 22 Miss Phillips, once I start -- 23 THE COURT: Well, see that's the point 24 thought. She is a rebuttal witness. 25 MS. WARDELL: I understand that, but KANABAY COURT REPORTERS 549 1 she is going to say it, so once she says 2 it -- 3 THE COURT: All right. But that's -- 4 we got to get to the point of it having 5 already been said so that she can be called. 6 MS. WARDELL: I understand. But -- 7 okay. Mr. DeVlaming stated in opening 8 statements, "every day for three months," 9 and he pointed to the 185 days -- "every day 10 for three months nothing. Nobody's going to 11 say he cultivated marijuana, nobody's going 12 to say he watered marijuana, nobody's going 13 to say he touched marijuana." And he asked 14 that question of law enforcement on 15 cross-examination: 16 "Did you see Mr. Prince touch that plant?" 17 "No." 18 "Did you see Mr. Prince touch that plant?" 19 "No." 20 "Did you see Mr. Prince, you know, water 21 that plant? 22 "No." 23 All of this goes to his knowledge of the 24 illicit nature of the substance, all of it. 25 THE COURT: I got it. Let's move on. KANABAY COURT REPORTERS 550 1 MS. WARDELL: You know, I've got to 2 prove -- 3 THE COURT: I've got it. Let's move 4 on. 5 MS. WARDELL: -- not only that it's 6 marijuana, but that he knew about it. 7 THE COURT: Let's move on. 8 MS. WARDELL: And in that context it's 9 significant that he's the one that would 10 retrieve it, he's the one that would roll it 11 which that came out as well. 12 Then there's that third visit with the 13 out-of-town company where, in the presence of 14 Trinidad, Mr. Prince voluntarily took marijuana 15 from one of the females that had come into town 16 who was a friend of theirs, and the door's been 17 opened to that. That's a source other than the 18 Church of Scientology. We talked about the law 19 enforcement visit, and then that's really about 20 it. 21 THE COURT: Mr. DeVlaming, sir, do you 22 wish to make any argument? 23 MR. DEVLAMING: Judge, I'm still at a 24 loss as to whether this is rebuttal. For 25 the life of me -- if the purpose of this -- KANABAY COURT REPORTERS 551 1 this witness is going to say, (a), that on 2 the relevant dates of the information that 3 the marijuana that was possessed was given 4 to them by an agent of law enforcement, that 5 doesn't rebut. That corroborates me, (a); 6 (b), as far as them growing marijuana, once 7 again, Judge, she says, "We didn't grow it. 8 We didn't plant it. We pulled it out and it 9 grow out of a dead rubber tree plant." That 10 does not rebut mine. That corroborates 11 mine. So I'm sitting here wondering how is 12 any of this rebuttal? 13 THE COURT: Well, if it's all 14 corroboration it doesn't hurt you. 15 MR. DEVLAMING: Well, I'm about that 16 close to saying I might do that, but I don't 17 want to waive that. I'm tell you that I 18 don't think that it's proper rebuttal. 19 MS. WARDELL: Judge, again the -- 20 THE COURT: I'll see you after lunch. 21 Now our lunch is at -- now we're back at 22 one-forty. 23 (LUNCH RECESS WAS HAD) 24 THE COURT: Okay. I believe I have 25 corrected the instructions as they need be, KANABAY COURT REPORTERS 552 1 if you all would approach, and then we also 2 have the verdict form if you all would come 3 and take a look at it. 4 MR. DEVLAMING: Judge, I pulled the 5 Medlin case, and I do not have any request 6 on the basis of it. 7 THE COURT: Okay. 8 MR. DEVLAMING: I think my client would 9 have had to testified that he didn't know it 10 was, and since that's not the case, I'm not 11 asking for it. 12 THE COURT: I appreciate it. All 13 right. At this time I rule that the 14 rebuttal testimony will proceed and that you 15 will get to ask all the questions that you 16 indicated, Miss Wardell. Let's proceed. 17 MR. DEVLAMING: Your Honor, before we 18 bring them in -- 19 THE COURT: Okay. 20 MR. DEVLAMING: -- just as to one 21 aspect. 22 THE COURT: Okay. 23 MR. DEVLAMING: Any discussion about an 24 event that occurred allegedly on July 13 25 with some other ladies that apparently had KANABAY COURT REPORTERS 553 1 brought marijuana into the house I believe 2 is irrelevant. Not only is it irrelevant 3 but it's probative value is outweighed by 4 prejudice, and it also is in violation of 5 the William's Rule to establish his 6 propensity. 7 Also same argument as to any marijuana 8 usage before the date that this investigation 9 started. That clearly would be a violation of 10 my client's rights as far as introduction of 11 unrelated evidence. 12 THE COURT: And the purpose for the 13 marijuana the day that the young ladies were 14 at the house, Mr. Gaston was there smoking 15 the marijuana with them; is that what you're 16 telling me she will testify to? 17 MS. WARDELL: Yes. 18 THE COURT: Is that what she said? She 19 did say that. Okay. And the purpose you're 20 arguing is that there is a another source 21 for marijuana. 22 MS. WARDELL: Which is in direct 23 opposition to the Defense's theory in this 24 case. And, Judge -- 25 THE COURT: All right. That's it. I KANABAY COURT REPORTERS 554 1 understand. The objection's overruled. You 2 want to put a case on the record? 3 MS. WARDELL: I want to put a case on 4 the record. 5 THE COURT: Put your case on the 6 record. 7 MS. WARDELL: Judge, it's 597 So.2d 8 879, which specifically says that limiting 9 rebuttal which goes to the heart of the 10 principal defense theory would be an abuse 11 of discretion, and because it rebuts their 12 theory I'm allowed to do it. 13 THE COURT: I got it. 14 MR. DEVLAMING: Judge, how about any 15 marijuana usage before this event ever, ever 16 began? In other words, that would clearly 17 be prejudicial. 18 THE COURT: I am trying to figure out 19 still -- you are arguing that the reason for 20 that is to establish that they used 21 marijuana even before Mr. Gaston came into 22 their lives and so the Church of Scientology 23 is not necessarily at fault for the 24 possession of the marijuana itself. 25 MS. WARDELL: Right, and if the church KANABAY COURT REPORTERS 555 1 is so out to get you and such this target 2 that you should be concerned about it, which 3 she clearly said they were going through 4 their garbage in Memphis and that they had 5 reason to believe they were followed, then 6 if you're so paranoid about the church and 7 they're doing all these horrible things, why 8 do you smoke marijuana with somebody that 9 you've only known for a week that you get 10 from one of her friends? 11 MR. DEVLAMING: In Memphis, Tennessee? 12 Judge, that is clearly -- 13 THE COURT: I won't grant that request. 14 I don't think you just tied that up. 15 MS. WARDELL: How about that generic 16 question that prior to meeting Mr. Trinidad 17 you and Mr. Prince smoked marijuana? 18 MR. DEVLAMING: Same objection, Judge. 19 I don't think that has anything to do other 20 than to show propensity, and that's exactly 21 why it's being offered, propensity. 22 MS. WARDELL: Judge, the whole theory 23 is marijuana wasn't introduced into the 24 man's life until February 7 when Gaston was 25 hired. KANABAY COURT REPORTERS 556 1 MR. DEVLAMING: This marijuana. 2 THE COURT: I think it's fair to ask 3 the question whether or not before, which is 4 essentially where I think you're headed 5 here -- whether or not before you met 6 Rinzy Trinidad did you all participate or 7 possess marijuana? 8 You know, I am concerned about one thing. 9 I want to make sure this is around the time 10 frame that all of this takes place. What I 11 cannot abide and what I cannot agree with is 12 that you sort of get to bring into the testimony 13 here today any prior conduct of both of these 14 individuals. 15 MS. WARDELL: Judge, all of her 16 testimony went from the point she moved into 17 the home, and we know she moved into the 18 home -- 19 THE COURT: All right. So since before 20 they moved into the home, or -- you're 21 talking about Memphis, Tennessee, on one of 22 them. 23 MS. WARDELL: Well, you set that one 24 out. I understand that one's out. 25 THE COURT: All right. KANABAY COURT REPORTERS 557 1 MS. WARDELL: All the stuff she talked 2 about with the exception of the week that 3 she met him would have occurred after 4 February 24th when she moved into this home 5 with -- 6 THE COURT: Okay. 7 MS. WARDELL: With the exception of 8 that generic question prior to meeting 9 Trinidad, because -- 10 THE COURT: Okay. So after they moved 11 into the house and before they met 12 Mr. Trinidad I think is a fair question. I 13 will allow it over Defense objection. Do 14 you understand? But what happened in 15 Memphis, Tennessee, you cannot get into. 16 MS. WARDELL: All right. 17 THE COURT: Okay. 18 MR. DEVLAMING: Can I have a standing 19 objection on that, or do you want me to make 20 the objection -- 21 THE COURT: It's a standing objection. 22 MS. WARDELL: May I just have a moment 23 to mark through so I don't -- I mean, you 24 can be doing what you do, bring them in 25 or -- KANABAY COURT REPORTERS 558 1 THE COURT: Yeah. Bring them in. 2 MR. DEVLAMING: Judge, I assume your 3 going to give the drug possession right 4 after you say what Mr. Prince is charged 5 with. Is that what -- 6 THE COURT: It's my intent -- this is 7 the order: 1.02, 2.01, 2.02, drug 8 possession, 2.03, 2.04, 2.04(d), 2.05, 2.07, 9 2.08 and 2.09. 10 MS. WARDELL: Would the Court or the 11 Defense object to the way I somewhat 12 leadingly asked the questions in light of 13 the content in the proffer? Do you think 14 that was a fair enough way to do it? 15 THE COURT: Mr. DeVlaming, are you 16 going to be objecting to leading? 17 MR. DEVLAMING: Well, I might. So, I 18 mean, let's see where it's going. 19 THE COURT: Start the way I did it? 20 MR. DEVLAMING: Yeah. 21 MS. WARDELL: Okay. 22 THE COURT: Are they coming? 23 THE BAILIFF: Yes, sir, they are. 24 (IN THE PRESENCE OF THE JURY) 25 THE COURT: Let me apologize for the KANABAY COURT REPORTERS 559 1 delay. I assure you we were not -- we were 2 working, so it was surely not designed in 3 any way to take upon your time or waste your 4 time. We are prepared to proceed at this 5 time. 6 And do you -- Mr. DeVlaming, sir, at this 7 time do you wish to call any other witnesses? 8 MR. DEVLAMING: No, your Honor. The 9 Defense rests. 10 THE COURT: All right. The Defense has 11 rested its case. Does the State wish to 12 call any rebuttal witnesses? 13 MS. WARDELL: Yes, your Honor. 14 THE COURT: All right. Please call 15 your first witness. 16 MS. WARDELL: Deneen Phillips. 17 * * * * * * * * * * * * * * * * * * * * * * * * 18 Whereupon, 19 DENEEN PHILLIPS, 20 the State's witness herein, being first duly 21 sworn upon oath, was questioned and testifies as 22 follows: 23 THE COURT: You may proceed. 24 MS. WARDELL: Thank you, Judge. 25 KANABAY COURT REPORTERS 560 1 DIRECT EXAMINATION 2 BY MS. WARDELL: 3 Q If you could please turn to the jury and 4 introduce yourself by stating your name and how you 5 are currently employed. 6 A My name is Deneen Phillips, and I'm 7 employed with the Lisa McPherson Trust. 8 Q And who is it that you know within that 9 organization that asisted you in getting that job? 10 A Jesse Prince. 11 Q And what is his relationship to you? 12 A He is my fiance. 13 Q And do you share a home together? 14 A Yes, we do. 15 Q Did you move here to Florida to be with 16 him? 17 A Yes, ma'am. 18 Q Did you specifically pick Clearwater 19 because of his affiliation with the Lisa McPherson 20 Trust? 21 A Yes, ma'am. 22 Q You moved into a residence together? 23 A Ma'am? 24 Q You moved into an actual residence 25 together? KANABAY COURT REPORTERS 561 1 A Yes, ma'am. 2 Q You purchased a home? 3 A Yes, ma'am. 4 Q And what's that address? 5 A 1949 Bellair Road, Clearwater. 6 Q And within approximately a month after 7 purchasing that home was there a security system 8 installed? 9 A Yes, ma'am. 10 Q Do you recall the date that you moved in? 11 A Yes February 24th. 12 Q Okay. Approximately? 13 A Yes. 14 Q Okay. And once the alarm system was 15 installed, it functioned properly? 16 A Yes, ma'am. 17 Q And with regards to your home, I want to 18 talk -- have you talk to the jury for a minute about 19 the actual pool area. It's enclosed by a screened-in 20 porch-type enclosure? 21 A Yes, ma'am. 22 Q And there are two doors that lead from the 23 outside to the pool on opposite sides of each other? 24 A Yes, ma'am. 25 Q And one of those doors actually had damage KANABAY COURT REPORTERS 562 1 to it just after you moved in, correct? 2 A Yes. 3 Q And the damage was that the screen was torn 4 out and that if somebody wanted to they could enter 5 the door through the tear in the screen? 6 A Right. And you have to understand that you 7 don't have to do that. You can just open the door. 8 Q Right. 9 A It's not locked. 10 Q Right. Right. But if you lock it or if it 11 were locked a person could still enter in through the 12 hole in the screen? 13 A Yes. 14 Q And you noticed that damage in probably 15 sometime in March of 2000? 16 A Yes, ma'am. 17 Q And it wasn't until just recently that you 18 brought somebody out to look at that damage and give 19 you an estimate with regards to repairing it? 20 A I had someone out to do the whole 21 enclosure. 22 Q And that was recently? 23 A Yes. 24 Q After Mr. Prince was arrested? 25 A Yes. KANABAY COURT REPORTERS 563 1 Q Now, with regards to the inside of your 2 home, there are three ways to enter the pool area 3 from within your residence? 4 A Yes, ma'am. 5 Q And you can enter from your bedroom to the 6 pool area? 7 A Yes. 8 Q And there's glass sliding doors? 9 A Yes. 10 Q And the living room to the pool area? 11 A Yes. 12 Q Same thing, glass sliding doors? 13 A Yes, ma'am. 14 Q And the kitchen area has glass sliding 15 doors to the pool as well? 16 A Yes. 17 Q And there is, in fact, an alarm system 18 trigger on the glass sliding doors that lead from the 19 bedroom to the pool area? 20 A That's the only one, yes. 21 Q Only door that leads to the pool that has 22 an alarm? 23 A Yes. 24 Q All right. I want to talk to you about an 25 individual that you knew as Trinidad. KANABAY COURT REPORTERS 564 1 A Right. 2 Q You met this individual at a Wilson's bar? 3 A Yes, ma'am. 4 Q Okay. Now, I understand that you can't 5 date these meetings, but would it be fair to say that 6 they began after you moved into your home? 7 A Yes, ma'am. 8 Q So we're talking after February 25? 9 A Yes. 10 Q Let's talk about the first time you 11 encountered him. Was it just briefly? He was 12 leaving out the door and you just acknowledged each 13 other? 14 A Correct. 15 Q No names or phone numbers were passed? 16 A No, ma'am. 17 Q And the second time you visit him, that was 18 also at Wilson's Lounge? 19 A Yes, ma'am. 20 Q And that's when you struck up a friendly 21 conversation? 22 A He did, yes. 23 Q Well, and you participated? 24 A Yes. 25 Q And Mr. Prince was there? KANABAY COURT REPORTERS 565 1 A Yes, ma'am. 2 Q And he participated in a relationship with 3 Trinidad that night at Wilson's Lounge? 4 A Yes. 5 Q And it was a friendly atmosphere? 6 A Yes. 7 Q In fact, while at that lounge you were 8 invited out to the back area for the purpose of 9 smoking marijuana? 10 A Yes, ma'am. 11 Q And Mr. Prince was also invited to go out 12 and smoke marijuana? 13 A Yes. 14 Q And both of you went for that purpose? 15 A Yes. 16 Q And marijuana was, in fact, smoked once you 17 got outside of Wilson's Lounge? 18 A Yes. Rinzy invited us out with his 19 friends, and, yes. 20 Q And when you say Rinzy, you're referring to 21 mister -- the Trinidad name? 22 A Yes. 23 Q Okay. 24 A Barry. 25 Q And once outside, Mr. Prince smoked KANABAY COURT REPORTERS 566 1 marijuana? 2 A Yes, ma'am. 3 Q And once outside, you too smoked marijuana? 4 A Yes, ma'am, and Rinzy, and his girlfriend. 5 Q And some of the other patrons? 6 A Yeah. 7 Q There were others smoking? 8 A Yes. 9 Q In fact, it was a patron of the bar that 10 provided the marijuana, correct? 11 A Yes. 12 Q It wasn't -- 13 A It was Rinzy's friend. 14 Q You believe it to be Rinzy's -- 15 A I know it's Rinzy's friend. 16 Q And you base that upon the fact that he was 17 at the bar at the same time frame and was socializing 18 with everybody? 19 A Right. 20 Q But you haven't seen that individual since? 21 A No, ma'am. 22 Q And the best you can describe him is that 23 he was a white male? 24 A Right, with a little shaggy goatee thing 25 and tall. That's all I can remember of him. KANABAY COURT REPORTERS 567 1 Q In all the contact that you had with 2 Rinzy Trinidad, you never saw that individual again? 3 A No, ma'am. 4 Q And you've made no attempt to locate him? 5 A No, ma'am. 6 Q Based solely on the fact that he was at the 7 bar with Mr. Trinidad and you all, you believe they 8 were connected? 9 A Right. 10 Q Okay. And that patron, that white male, 11 actually gave Mr. Prince a baggie of marijuana, 12 didn't he? 13 A Yes. 14 Q And Mr. Prince took it? 15 A Yes. 16 Q And following this encounter at the bar 17 where you all smoked the marijuana, you actually 18 invited Trinidad to your home? 19 A Yes. 20 Q That night? 21 A Yes, ma'am. 22 Q And he actually followed you from the bar 23 to your home? 24 A Yes, him and his girlfriend. 25 Q That's how come he knew how to get there? KANABAY COURT REPORTERS 568 1 A Right. 2 Q You took him there? 3 A Right. He followed us. 4 Q And once in your home you all shared 5 drinks? 6 A Yes, ma'am. 7 Q And you smoked another joint? 8 A Yes, ma'am. He wanted to go because he was 9 trying to relax Joyce, relax her or whatever, and me 10 and Joyce was getting along really well in the bar, 11 and we just took it to my house. 12 Q And this Joyce individual was somebody that 13 was met at Wilson's Lounge? 14 A Yes, she was with him. They were -- 15 Q That's how you knew her? 16 A Right. 17 Q And, in fact, in your home you rolled a 18 joint with the loose marijuana that the white male at 19 the bar gave you? 20 A Yes, ma'am. 21 Q And where did you get the rolling papers? 22 A We had them. 23 Q Who specifically went and got them and 24 brought them to where the marijuana was? 25 A Jesse. KANABAY COURT REPORTERS 569 1 Q Mr. Prince? 2 A Yes. 3 Q And were those rolling papers kept in a 4 black box? 5 A Yes, ma'am. 6 Q You already had them in the home when you 7 all arrived that night? 8 A Yes. 9 Q Is that because from the time period that 10 you moved here to Clearwater, which you said was the 11 end of February, during this time frame you would 12 casually smoke marijuana with Mr. Prince? 13 MR. DEVLAMING: Objection. Leading. 14 THE COURT: Sustained. 15 BY MS. WARDELL: 16 Q During the time frame of when you got here 17 to Clearwater, which we know to be around February 18 24, did you smoke marijuana with Mr. Prince without 19 Mr. Trinidad being present? 20 A We have occasionally, yes. 21 Q Is that why you had the rolling papers? 22 A Yes. It's a lot of little junk in this 23 little black box, so it's not, like, just rolling 24 papers. It was like -- it could be hairpins. It's a 25 lot of things. Just a little storage box. KANABAY COURT REPORTERS 570 1 Q But that's where you kept the rolling 2 papers? 3 A Yes. 4 Q You met Mr. Prince, what, about two years 5 ago? 6 A About two years, yes. 7 Q And met him in Memphis, Tennessee? 8 A Yes. 9 Q And you came and moved here together? 10 A Yes. 11 Q Now, the night that we were just talking 12 about when Trinidad actually came to your home from 13 Wilson's, you actually allowed him to go to the pool 14 area? 15 A Yes, ma'am. 16 Q And that was to smoke the joint outside? 17 A Yes. 18 Q Because you had children upstairs and you 19 needed to take it out of the house? 20 A Exactly. 21 Q And this would be, like we discussed, a 22 screened-in pool area? 23 A Yes, ma'am. 24 Q And do you recall how much time passed 25 between your next visit with Mr. Trinidad? KANABAY COURT REPORTERS 571 1 A Two weeks. 2 Q Could it have been less? 3 A Yes. 4 Q And we've been calling him Mr. Trinidad. 5 You now know that's not his name, right? 6 A Yes. 7 Q But that's how you knew him? 8 A Right, and I still say Rinzy, so I'm sorry, 9 yes. 10 Q That's okay. So we're talking about 11 Barry Gaston? 12 A Exactly. 13 Q Well, I want to talk about that second 14 visit. He came to your home? 15 A Uh-huh. 16 Q And is that a yes? 17 A Yes. 18 Q And he actually brought some alcohol right? 19 A Yes. Some Puerto Rican rum. 20 Q Looks like that bottle sitting over there? 21 A Yes, ma'am. 22 Q And while there somebody asks for a smoke? 23 A Rinzy. 24 Q He did? 25 A Yes. KANABAY COURT REPORTERS 572 1 Q He brought up the conversation? 2 A Yes. 3 Q And who went and got the marijuana to 4 smoke? 5 A Again, I don't have -- I left it in my 6 purse but, the little sheet that you gave me. 7 Q Okay. 8 A But I think it was Jesse. 9 Q Where exactly did you leave your 10 deposition? 11 A It's in my purse. 12 Q Is it in the courtroom that somebody could 13 get it for you? 14 A Yes. 15 Q And you're talking about a deposition that 16 you gave just recently in this case. 17 MS. WARDELL: May I approach the 18 witness? 19 THE COURT: Please. 20 BY MS. WARDELL: 21 Q Could you just keep it up there in case you 22 need to refer to it at any time? 23 A Thank you. 24 Q You're actually here under a State's 25 subpoena, right? KANABAY COURT REPORTERS 573 1 A Yes, ma'am. 2 Q And you understand that I give you immunity 3 for the answers that you give while under that 4 subpoena? 5 A Yes, you explained that. 6 Q All right. So on Mr. Trinidad's second 7 visit when he asked if there was any marijuana left 8 to smoke, who went and got it? 9 A I believe Jesse did. 10 Q And do you recall where he got it from? 11 A No, no. I think I did, I'm sorry, because 12 it came from the from my pocket. 13 Q Okay. Is it fair to say that you've 14 previously stated that you got the marijuana from 15 your coat pocket that was smoked that night? 16 A Right. 17 Q And have you also previously stated that 18 Mr. Prince got it from the black tin? 19 A There was an occasion, yeah, the one time 20 that it came out of the black tin. The first time I 21 was -- I feel comfortable doing it like this, because 22 I can't remember way back then. But the first time 23 it came out of my coat pocket that -- the first time 24 he came by. The second time it came out of the black 25 box. KANABAY COURT REPORTERS 574 1 Q Okay. And I understand that you're 2 attempting to clarify your testimony today, and 3 that's fine because it was a while back, but you did 4 previously say at your deposition first that 5 Mr. Prince got it from the black tin, and then when 6 you -- 7 A When Jesse got it it came out the black 8 tin, but when I got it it came out of my coat pocket. 9 Q Okay. 10 A Okay. 11 Q One way or the other, wherever it came 12 from, that night it was smoked? 13 A Right, and it's the same marijuana that had 14 came from Rinzy's friend. 15 Q Okay. Approximately how much did that 16 individual give you, if you can recall? 17 A We had at least about four or five joints 18 out of that bag. 19 Q It was a baggie that had loose marijuana in 20 it? 21 A Yes, ma'am. 22 Q And you think you rolled anywhere from four 23 to five joints? 24 A Yes, ma'am. 25 Q And with regards to this particular night, KANABAY COURT REPORTERS 575 1 Mr. Prince smoked one of the joints that was rolled? 2 A Yes, ma'am. 3 Q As did you? 4 A Yes. 5 MR. DEVLAMING: Can we have a date? 6 BY MS. WARDELL: 7 Q Are you able to pin this down other than 8 approximately a week and a half to two weeks after 9 the first visit? 10 A As far as the date? 11 Q Uh-huh. 12 A April maybe. 13 Q After you moved into your home and after 14 you met him at the bar? 15 A Definitely, yes. 16 Q That's the best you can do? 17 A Yes. 18 MR. DEVLAMING: Judge, I'm going to 19 object to -- the dates in the information 20 all postdate that, of May 7, August 6 and 21 August 11. It's irrelevant. 22 THE COURT: Objection's overruled. 23 BY MS. WARDELL: 24 Q Do you recall who actually rolled the joint 25 that night? KANABAY COURT REPORTERS 576 1 A Which night? I'm sorry. 2 Q We're on the second visit -- 3 A The second night? 4 Q -- that Mr. Trinidad had at your home. 5 A I did or Jesse did. I'm not sure. 6 Q If I could direct your attention to page 4 7 of your depo. If you could read that, and if that 8 refreshes your memory you can look up and answer the 9 question after you've read it. 10 A Thank you. Yes, Jesse. 11 Q Mr. Prince rolled the joint that night? 12 A Yes. 13 Q Okay. I want you to talk to the jury about 14 the third visit that Mr. Trinidad had at your home, 15 and I understand again that you're not really good on 16 the dates because you weren't sitting there keeping a 17 log of this behavior. 18 A Exactly. 19 Q But this is the time that you had company 20 from out of town at that house? 21 A That's right. 22 Q Okay. I want to talk about that night. 23 Mr. Trinidad was invited over? 24 A Right. 25 Q And your girlfriends were there? KANABAY COURT REPORTERS 577 1 A Yes. 2 Q I believe -- what were they, from 3 Tennessee? 4 A Yes. 5 Q And there was some drinking? 6 A Yes. 7 Q And -- 8 MR. DEVLAMING: Judge, I'm going to 9 object unless we have a date. 10 MS. WARDELL: She's narrowed it down -- 11 THE COURT: The objection is overruled. 12 BY MS. WARDELL: 13 Q And your girlfriends actually brought some 14 marijuana to your home? 15 A They -- yeah, they had. 16 Q And you all participated in smoking of that 17 marijuana? 18 A Yes. 19 Q And when your girlfriends came to your home 20 they didn't know Trinidad. The first they met 21 Trinidad was at your house? 22 A Right. 23 Q And so they had the marijuana prior to 24 meeting Trinidad? 25 A Yes. KANABAY COURT REPORTERS 578 1 Q And did Mr. Prince smoke the marijuana that 2 they brought the your house? 3 A Yes. 4 Q And did you? 5 A Yes, and Rinzy. 6 Q And Trinidad and the women? 7 A Uh-huh. 8 Q And again this would have been out in the 9 pool porch area? 10 A Yes. 11 Q Do you actually leave your home after 12 smoking that marijuana and go to a bar-type 13 atmosphere or a restaurant or -- 14 A Yes. 15 Q -- some type of social setting? 16 A We went and shot pool. 17 Q Okay. And you came back to your home? 18 A Uh-huh. 19 Q And Mr. Trinidad came back as well? 20 A Yes. 21 Q And your friends? 22 A Right. 23 Q And Mr. Prince? 24 A Right. 25 Q And another joint was smoked, correct? KANABAY COURT REPORTERS 579 1 A Right. 2 Q Mr. Prince smoked it? 3 A Right. 4 Q He touched it? 5 A Yes, Rinzy, myself and -- 6 Q -- your friends. 7 A Right. 8 Q Now, at this particular visit that we're 9 talking about where you had your out-of-town company, 10 a marijuana plant was outside on your screened-in 11 porch area? 12 A Right. 13 Q And you knew it was marijuana? You knew it 14 was a marijuana plant? 15 A Yes. 16 Q Mr. Prince knew it was a marijuana plant? 17 A Yes. 18 Q All right. Now, I want to talk to you 19 about a visit that Trinidad had when Mitch came 20 along. You know now who Mitch was? 21 A Yes. 22 Q You realize he was law enforcement? 23 A Yes. 24 Q And again you're not sure of the date, but 25 you can recall that visit? KANABAY COURT REPORTERS 580 1 A Yes. 2 Q Was it Trinidad that brought Mitch over? 3 A It was. 4 Q And you had no problem with the person you 5 knew to be Trinidad bringing a friend to your house? 6 A Well, he just showed up with a friend that 7 he said was from out of town, and he asked us did we 8 still have any of that stuff. Every time there was a 9 joint smoked it was Rinzy's friend's -- Rinzy's 10 reefer. It wasn't, you know, it was -- and he would 11 always refer to it, "Do you have any more? Do you 12 have more? Do you have more?" you know, until I'm 13 like, "Well, I guess. Here, smoke it till it's 14 gone," you know. But -- 15 Q And every time he asked, marijuana was 16 provided, right? 17 A Well, he had marijuana also. So it's not 18 like just -- I want you to understand it's not just 19 coming out of the black can. Rinzy had marijuana and 20 came with it and -- 21 Q He brought some to your house -- 22 A -- and he had his girlfriend, brought her 23 to the house, and, you know, yes. 24 Q And your girlfriends brought some to the 25 house? KANABAY COURT REPORTERS 581 1 A Yeah. 2 Q And you still had some left over from the 3 person that gave it to you at the bar? 4 A Yes. 5 Q Okay. 6 A When the officer came by, that was it. It 7 was over. 8 Q Okay. So when the officer came by, is 9 it -- somebody brought it up? 10 A Rinzy. 11 Q So you say Rinzy brought up having a -- 12 what did he call it? 13 A Do you have anymore -- I think he just 14 said, "Do you have anymore of that stuff?" 15 Q And who went and got it? 16 A Me. 17 Q And you think that's when you used up what 18 was left over? 19 A Yes, ma'am. 20 Q Of the baggie? 21 A Yes, ma'am. 22 Q And who rolled the joint, if you recall? 23 A Me. 24 Q And did you all smoke it? 25 A Yes, ma'am. KANABAY COURT REPORTERS 582 1 Q You smoked it in the presence of law 2 enforcement, unbeknownst to you? 3 A Right. 4 Q And Mr. Prince smoked it in the presence of 5 law enforcement? 6 A Uh-huh, and Rinzy and the law enforcement. 7 Q And there's not doubt in your mind it was 8 marijuana? 9 A Right. 10 Q And on that visit did you allow Mitch, who 11 was law enforcement, into your pool area? 12 A Yes. 13 Q And on that visit was a marijuana plant in 14 your porch area? 15 A I'm sure, yes. 16 Q You knew it was there? 17 A Uh-huh. There was some marijuana that was 18 just springing up out of my plants, and Jesse would 19 throw them out -- 20 Q And I'm going to talk to you about that and 21 I don't mean to cut you off, but just give me a 22 couple more questions, and then we'll get to that. 23 Okay? 24 A Uh-huh. 25 Q I want to talk to you about your second KANABAY COURT REPORTERS 583 1 visit when Mitch, the law enforcement, stopped by. I 2 know you don't recall the date, but was it close in 3 time to when Mr. Prince was arrested? 4 A Yes. 5 Q And at that time were you outside actually 6 watering your plants in the pool area? 7 A Right. They came very early in the 8 morning. I was out in my gown watering my plants, 9 and I looked up and it was Mitch, you know, in my -- 10 on my patio. 11 Q It was close to 11 a.m. when they got 12 there? 13 A I don't know what time. I just know 14 everybody in the house was asleep. 15 Q On a Sunday morning? 16 A Yes. 17 Q And Mitch -- you mentioned Mitch, that's 18 law enforcement, actually came to the pool area? 19 A Yes. 20 Q And did he comment on your knack to raise 21 plants because there was other potted plants? 22 A Yes, ma'am, there was a lot. 23 Q And he observed your potted plants? 24 A Right. 25 Q And one of the plants that was out there KANABAY COURT REPORTERS 584 1 was a marijuana plant? 2 A Yes, it was out there. 3 MS. WARDELL: Judge, may I approach the 4 witness? 5 THE COURT: You may. 6 BY MS. WARDELL: 7 Q This is State's Exhibit NO. 4 for 8 identification. Is this the plant that was out there 9 a few days before Mr. Prince was arrested that you 10 believe law enforcement saw? 11 MR. DEVLAMING: Objection as to what 12 law enforcement saw. 13 MS. WARDELL: I'm just trying to -- 14 THE COURT: Overruled. Go ahead. 15 THE WITNESS: Yes. 16 BY MS. WARDELL: 17 Q Okay. And that plant is kind of next to 18 the screen door that if you walked out your home is 19 on the right? 20 A Right. That's busted. 21 Q That one that's busted out? 22 A Yes. 23 Q Now, you knew that that was a marijuana 24 plant all the way back to late spring or early June 25 of that same year? KANABAY COURT REPORTERS 585 1 A Right. 2 Q And that same plant was in your pool area 3 all the way back to late spring or early June? 4 A Right. 5 Q So for just over three months it was on 6 your property? 7 A Right. 8 Q That's property that you and Mr. Prince 9 share together? 10 A Yes, ma'am. 11 Q Both your names are on the mortgage? 12 A Yes, ma'am. 13 Q Mr. Prince goes to that pool area probably 14 on a daily basis? 15 A At this point, no, ma'am. 16 Q Well, back -- well, during the time frame 17 that you purchased the house which is -- would it be 18 fair to say he cleaned the pool? 19 A Yeah. I do most of the outside stuff. 20 Q And he did it too? 21 A Yeah. 22 Q And he knew that plant was there? 23 A Uh-huh. 24 Q Is that a yes? 25 A Yes. KANABAY COURT REPORTERS 586 1 Q And he knew it was marijuana? 2 A Yes, ma'am. 3 Q And, in fact, you had a sprinkler system 4 that watered it, correct? 5 A It's not like the sprinkler system was, 6 like, sitting there watering it, no. It sits next to 7 a sprinkler system that gets all my other plants, so, 8 yes, it got watered also. It was -- 9 Q Right. So when the sprinkler system was on 10 it would get water? 11 A I would say yes. 12 Q And it was in the sun? 13 A Yes. 14 Q Now, you had started talking a minute ago 15 about some of the other small marijuana plants that 16 sprung up. Let's talk about that. 17 A They were springing out up throughout this 18 whole ordeal. 19 Q Okay. As early as -- was it before you 20 first met Trinidad they began to spring up? 21 A I don't -- 22 Q Was it when you first moved into the home 23 that they began to spring up? 24 A Maybe a few -- a couple of months 25 afterwards. KANABAY COURT REPORTERS 587 1 Q Months, or do you think it was sooner? 2 A After we moved into the home with Rinzy. 3 Q Okay. 4 A They started springing up I would say in 5 April, May, June, springing, and he would tear them 6 out and that, you know -- 7 Q And do what with them? 8 A I don't know what he did with them. I 9 threw them out one time, a few of them, in the 10 garbage. 11 Q You pulled some up and you threw the ones 12 you pulled up in the garbage? 13 A Right. 14 Q And during this time frame you had reason 15 to believe that Scientology was following you? 16 A Yes. 17 Q And you also had reason to believe that 18 members -- maybe not members, but people associated 19 with Scientology were possibly going through your 20 garbage? 21 A They did. 22 Q But you pulled the smaller ones up and left 23 the large one to grow? 24 A It wasn't large during this time either. 25 It was just -- I just left it, you know. I just left KANABAY COURT REPORTERS 588 1 it there. 2 Q Well, every day it grew larger. That's 3 fair to say? 4 A Yes. 5 Q And that was not one of the ones that you 6 threw away? 7 A Right. You have to understand also that I 8 started working -- excuse me, I started working in 9 June. So it just wasn't like I was -- well, July. 10 It's not like I was outside every day now, or, you 11 know, looking at this plant or it's not the top 12 priority on my list was this plant. It was just 13 something that was growing there. 14 Q But you knew it was there? 15 A I didn't think about it. 16 Q You knew it was there? 17 A Yeah, I -- if you think about it, but you 18 don't think about it, no. It not like it's something 19 that I see every day or I'm, ooh, ooh, ooh, you know, 20 no. 21 Q But you thought about it when you pulled up 22 the smaller ones, right? 23 A Right. 24 Q And you left it? 25 A Yes. KANABAY COURT REPORTERS 589 1 Q And Mr. Prince participated in pulling up, 2 as you describe, quite a bit of small ones, right? 3 A Yeah, they were just growing in my potted 4 plants. 5 Q And he too left that larger one? 6 A Yes. 7 Q Now, as part of your work, you know some of 8 the members of the Lisa McPherson Trust, correct? 9 A Yes, ma'am. 10 Q And you're also aware that some of these 11 members have used Mr. DeVlaming? You knew who he 12 was? 13 A Yes. 14 Q Fair to say during this February to August 15 time frame you knew who Denis DeVlaming was? 16 A Yes. 17 Q Did you ever call him at any point from 18 February 24 when you moved in to August 11 and say, 19 "Hey, there's marijuana plants springing up in my 20 back porch screened-in area"? 21 A No. 22 Q To your knowledge, did Mr. Prince do that? 23 A Not to my knowledge. 24 Q And as part of the -- let me ask you this: 25 You are familiar with the name of a Ray Emmons? KANABAY COURT REPORTERS 590 1 A Yes. 2 Q That's an individual that Mr. DeVlaming has 3 used as a private investigator, correct? 4 A I just found that out, yes, recently. 5 Q Okay. And you're aware that the trust had 6 used him both before and after Mr. Prince's arrest? 7 A I'm aware of what Mr. Emmons did when I 8 started working for the trust actually. I didn't 9 know what Mr. Emmons did. 10 Q Well, Mr. Prince has been working for the 11 trust a lot longer than you, right? 12 A Yes. 13 Q Do you have any idea whether it's been, 14 like, two years, year and a half maybe? 15 A Yes, I would say. 16 Q Somewhere in that time frame? 17 A Uh-huh. 18 Q Okay. So at any point did you call the 19 private investigator which you basically had at your 20 fingertips and say, "Hey, there's marijuana plants 21 springing up in my pool porch area"? 22 A No, ma'am. 23 Q Did Mr. Prince? 24 A Not that I know of, no, ma'am. 25 Q And you're certainly aware that some of the KANABAY COURT REPORTERS 591 1 tactics that you believe were employed by the Church 2 of Scientology -- 3 A That I know, yes. 4 Q -- as it relates to following you all? 5 A Yes, ma'am. 6 Q Did it ever occur to you to perhaps set up 7 a hidden video camera to find out where all these 8 random marijuana plants were coming from? 9 A No, ma'am. 10 Q It never occurred to you to fix that hole 11 in your screen door to maybe stop the person? 12 A That's not going to stop anyone from coming 13 in and out. It doesn't have a lock on it, and the 14 whole screen, the whole cage needed to be redone. 15 Q You didn't know that until you recently 16 inquired, right? 17 A No, I knew. It's rotten. 18 Q Okay. 19 A It's weather-worn. 20 Q Did you make any efforts to notify anybody 21 and seek any help with regards to the marijuana 22 plants that were coming up into your porch area? 23 A No. Jesse was pulling them out. 24 Q Just throwing them away? 25 A (Witness indicates.) KANABAY COURT REPORTERS 592 1 Q Yes? 2 A Yes, ma'am. 3 Q In garbage that you knew or believed that 4 Scientology was sifting through? 5 A They sifted through my garbage in 6 Tennessee, not -- I don't know about here, but I do 7 know that they went through it in my home in 8 Tennessee. 9 Q That's certainly not -- you wouldn't put it 10 past them to use that tactic here in Clearwater? 11 A No, ma'am, not at all. 12 Q Okay. So despite that, the marijuana 13 plants were just thrown in the garbage? 14 A Yeah. I throw all my weeds in the garbage, 15 yes. 16 Q Well, all your weeds aren't illegal, 17 though, are they? 18 A I don't know. 19 Q Okay. We talked about the marijuana plant 20 being in your pool area the first visit that law 21 enforcement came. Was it also there on that 22 second -- I think you told me that it was also there 23 on the second visit. And were there times between 24 April 7, which I know you don't know the dates, but 25 that's the date documented that law enforcement KANABAY COURT REPORTERS 593 1 entered your home. Were there times when law 2 enforcement entered your home and when Mr. Prince was 3 arrested August 11 that you and Mr. Prince smoked 4 marijuana when Trinidad was not there? 5 A Very occasionally. Not often. And it was 6 out of the that marijuana that Rinzy gave us. 7 Q But -- 8 A I mean, not the Rinzy. It was his friend. 9 Q But it did happen? 10 A Yes. 11 Q Now Trinidad never told you to keep that 12 plant and let it grow, did he? 13 A No, ma'am. 14 Q He never directed you or tried to encourage 15 you to keep that plant? 16 A We never discussed -- Rinzy never discussed 17 the plant. 18 Q Same thing with Mitch, when he was acting 19 out his role as Mitch, he never tried to encourage 20 you to keep that plant and he never tried to tell you 21 what to do to foster it or make it grow? 22 A No, ma'am. 23 MS. WARDELL: Judge, I don't have 24 anything further. 25 THE COURT: Any cross? KANABAY COURT REPORTERS 594 1 MR. DEVLAMING: Yes. 2 THE COURT: Please proceed. 3 CROSS-EXAMINATION 4 BY MR. DEVLAMING: 5 Q Miss Phillips, what job did you have before 6 you came with the LMT? 7 A I am an optician. I do laser surgery, 8 glasses, cataract surgery. 9 Q Okay. And did you have that employment 10 during the time of this Rinzy Trinidad era? 11 A Yes, sir. 12 Q Okay. So it's of late that you have now 13 worked for the LMT? 14 A Yes, I have only been there maybe three 15 months. 16 Q You like plants? 17 A Yes, I love them. 18 Q Okay. You grow a lot of plants? 19 A Yes, sir. 20 Q You proud of them? 21 A Yes, sir. 22 Q And how about Jesse? Does he tend to the 23 plants? 24 A No, he don't. 25 Q Okay. That's not -- KANABAY COURT REPORTERS 595 1 A No more than help -- you know, he found 2 that marijuana was growing out of, well, a couple of 3 them, mine that I had -- well, I don't know. One of 4 them, one of mine it was growing out, and he would 5 pluck them out. But as far as watering the plants 6 and taking care of plants, no. 7 Q Okay. Are a lot of your plants -- did you 8 get them locally? 9 A Yes. I usually go the Wal-Mart or Home 10 Depot. 11 Q Okay. Are they tropical plants? 12 A Yes. 13 Q All right. And are there a lot of plants 14 out on the lanai? 15 A Yes. 16 Q Okay. So this isn't a situation where 17 there is one marijuana plant growing in the middle of 18 your pool area? 19 A Right. 20 Q Okay. And are they bunched together as 21 well? In other words, if you were to water, would 22 you have to water one and go to the other, or could 23 you spray the -- 24 A I can -- in some spots I can just spray, 25 and there's not -- I just have them placed all over. KANABAY COURT REPORTERS 596 1 Q Okay. 2 A But in some I can spray and some I have to 3 go -- and some are out where the water sprinkler can 4 get them. 5 Q So there are some outside of the lanai as 6 well as inside? 7 A No. They're inside, but the water 8 sprinkler can get to them. 9 Q And hit it? 10 A Uh-huh. 11 Q Okay. 12 A My bushes and my hibiscus and stuff like 13 that. 14 Q On the date of August 11 when the police 15 came to your house -- 16 A Uh-huh. 17 Q -- they took out a plant that had been in 18 this planter, Defendant's Exhibit NO. 3. Did you 19 ever grow a marijuana plant among that root? 20 A No, I never sowed a seed in that pot. 21 Q Did you ever at any time put seeds or 22 attempt to grow marijuana at your property? 23 A No, sir. 24 Q Okay. 25 A It just came out. KANABAY COURT REPORTERS 597 1 Q Okay. When you would pull them up, would 2 one grow back? 3 A Yes, sir. 4 Q Now, at any time did you ever pull out any 5 plants and dry them out and smoke them? 6 A No, sir. 7 Q Okay. That was not done at any time during 8 the course of you living in that home? 9 A No, sir. 10 Q Now, you said that Rinzy -- and we'll call 11 him Rinzy Trinidad because that's what you knew him 12 as, didn't you? 13 A Yes, sir. 14 Q And did he try to become a friend to you 15 and your husband? 16 A Yes. 17 Q How about to your children? 18 A Yes. 19 Q Did the kids like him? 20 A Yes. 21 Q Did he ever bring a girl by the name of 22 Joyce over? 23 A Yes. 24 Q Do you know what relationship he had with 25 Joyce? KANABAY COURT REPORTERS 598 1 A That was his girlfriend that -- he she 2 explained that they had been going out off and on 3 for, like, over a year, year and a half, and he 4 wasn't ready to settle down, and, you know, he'd just 5 come by and pick her up, and but he wasn't ready to 6 settle down with her. That's the understanding that 7 I got from her. 8 Q Were they having any relations? You know 9 what I mean by that? 10 A Yes. 11 Q Were they? 12 A Yes. 13 Q Okay. Now, at a Wilson's liquor store, I 14 think it was on the second time that you had seen 15 him -- on the first time it was just he and Jesse 16 said hello? 17 A Yes, sir, that's right. 18 Q And on the second time you said that it 19 looked like a friend of his or an acquaintance of his 20 was out back smoking marijuana with everybody? 21 A Right. 22 Q All right. And how do you -- how do you 23 believe that he and Rinzy were friends or he was part 24 of his crowd? 25 A Because Rinzy knew a few of the people and KANABAY COURT REPORTERS 599 1 he was already out there, and he knew a few of the 2 people in the bar. And we don't, you know -- we 3 didn't know them. If we go there me and Jesse is 4 usually just sitting to ourselves. You know, we'll 5 have a drink and it's go back home. 6 Q Did Rinzy actually make the introduction 7 with this man that ultimately gave some marijuana? 8 A Yes, sir. 9 Q All right. Did Rinzy see that man, to your 10 knowledge, or did he know that the man gave you the 11 marijuana? 12 A Yes, sir, he was standing right there. 13 Q On the 7th day of May, which is the day -- 14 I know you're not great with dates. That's the date 15 that Officer Crosby first came. Okay? 16 A Okay. 17 Q I'm just telling you that, all right? 18 A Okay. 19 Q On the 7th day of May the marijuana that 20 was there on that date was that the marijuana 21 produced by Rinzy's friend? 22 A Yes. 23 Q You sure of that? 24 A Yes. 25 Q All right. Whose idea was it on the 7th KANABAY COURT REPORTERS 600 1 day of May to have, quote, a smoke? 2 A Rinzy's. 3 Q All right. Did he bring it up for that 4 purpose? 5 A Yes. 6 Q All right. And is he the one that asked 7 you if you had anymore of that stuff? 8 A This is -- we still the day with -- 9 Q Crosby. 10 A -- Crosby? Yes, sir. 11 Q All right. And he was referring to the 12 stuff that his friend had given you? 13 A Right. 14 Q When Rinzy would come over to the house was 15 there ever any time that he was left alone? 16 A Yes, sir. 17 Q Okay. Can you give me an example? 18 A For example, when my girlfriends came in 19 from Tennessee, he was really attracted to one of 20 them, and Jesse and I retired for the rest of the 21 night, and my other girlfriend had came down with 22 her. We went to bed and him -- her -- he and her 23 stayed up until about five in the morning. I offered 24 him -- we had been out, so I set him up a bed and 25 everything and told him he didn't need to drive, you KANABAY COURT REPORTERS 601 1 know, to stay here. And me and Jesse went to bed and 2 we woke the next morning and he was gone. 3 Q What was his level of sobriety that night? 4 A We all had been drinking. I would say he 5 didn't need to be driving, and, you know, I gave him 6 a bed so he wouldn't have to because he said he lived 7 in Lakeland. 8 Q Okay. We know now, Miss Phillips, that on 9 April 24 he became a confidential informant 10 working -- that's a police agent. Can you tell us 11 whether or not after April 24 whether he brought 12 marijuana to your house? 13 A Yes, sir. 14 Q Okay. And did he bring it for the purpose 15 of offering it and for the purpose of smoking it? 16 A Yes. And the night with my girlfriends he 17 had marijuana. You know, I'm not just saying it was 18 my girlfriends' marijuana too. He had marijuana 19 also. 20 Q Did he take it out then himself? 21 A Yeah, it was just joints -- 22 Q Okay. 23 A -- passed. 24 Q All right. 25 A They were already rolled. It was not KANABAY COURT REPORTERS 602 1 like -- he already had them. 2 Q At any time did you ever see any plants of 3 marijuana plants growing in your yard, by in your 4 yard meaning in your backyard or front yard? 5 A No, sir. 6 Q Okay. So the only ones that were sprouting 7 up were the ones that were in that lanai area? 8 A Yes, sir. 9 Q How old were the kids back then? 10 A Back then one was nine an one was thirteen. 11 Q What's the nine-year-old's name? 12 A Brandon. 13 Q And the thirteen? 14 A Terrence. 15 Q Both in school? 16 A Yes. 17 Q And you and Jesse were both working? 18 A Yes. 19 Q So during the school year at least, all 20 four of you would be away from the house during 21 business hours? 22 A Yes. 23 Q On the 6th day of August in the year 2000, 24 that's the date that Officer Crosby came back with 25 Trinidad, do you remember that date where they just KANABAY COURT REPORTERS 603 1 came back and had a very brief visit? 2 A Yes, sir. 3 Q All right. Did you ever see Gaston try to 4 get Jesse to sell marijuana? 5 A He came by to try to see -- saying that 6 they were on their way to the Keys and did Jesse have 7 any marijuana that he could sell them. 8 Q Okay. What did Jesse say? 9 A No. 10 Q Okay. Did you ever see Jesse possess any 11 marijuana on that date? 12 A No, sir. 13 Q Okay. Did he tend to any marijuana plants 14 that were in the lanai on that date? 15 A No, sir. 16 Q Okay. Did he ever tend to any of the 17 marijuana plants? 18 A No, sir. 19 Q Okay. And on the 11th day of August in the 20 year 2000, that's the date of your -- of his arrest? 21 A Yes. 22 Q All right. Did you ever see him tend to 23 the marijuana plant that was contained in that dead 24 rubber tree root plant? 25 A No, sir. KANABAY COURT REPORTERS 604 1 Q All right. Tell me about that day, Deneen. 2 What happened? What happened that morning? 3 A Of the arrest? 4 Q Yes, ma'am. 5 A Well, I had an accident on that Wednesday 6 so I was home from work with bruises and everything, 7 and I think it was a Friday. And early in the 8 morning we had a knock on the door, and the door bell 9 rang, and Jesse got up to answer it. He just put on 10 his robe. 11 And I heard someone say they just wanted to 12 talk to him about that car that was sitting -- the 13 red car that was sitting in the front yard. And he 14 then said that, you know, that was his -- he didn't 15 have a red car, his fiancee did, and that's when I 16 jumped up and went to the door, and they said, Well, 17 just let me talk to you for a second, and before I 18 knew it, they put handcuffs on him. 19 Q How were they dressed at that point? When 20 they're at the front door, how are they dressed? 21 A They had, like, black SWAT -- what I call 22 it like the SWAT team deal and the guns with the 23 scopes or whatever you call them on them. 24 Q Okay. All right. So they brought you 25 outside and put the handcuffs on you. What happened KANABAY COURT REPORTERS 605 1 next? 2 A And I just started asking them, "What's 3 going on?" you know, and they didn't answer. They 4 brought him back in the house, and this guy -- and 5 I'm like, "What's going on?" All these people, it 6 was like seven or eight, nine -- I don't know. It 7 was a lot of them in the SWAT outfits. And I'm 8 constantly asking them, "What's going on?" you know, 9 "What's going on? Tell me what's going on." No one 10 ever would say anything, you know. 11 So at this point I'm getting scared because 12 I'm wondering what is going on, and this guy starts 13 reading. He is mumbling and told me to stand back, 14 you know, because I'm trying to listen, but he is 15 just mumbling to Jesse off this sheet of paper. And 16 there's guys -- I look up and there's guys in my shed 17 back there, and, you know, just all in my back yard. 18 And I'm still asking, "What's going on?" until I just 19 fall on my knees. And I'm still asking them, "What's 20 going on?" 21 And one guy wanted to go upstairs to search 22 up there and asked me, you know, would I go up there 23 with him. And I'm, like, good because this is a 24 chance for me to find out, you know, what is going 25 on. I went up with him and my sons were upstairs KANABAY COURT REPORTERS 606 1 asleep. And he started looking all through my 2 closets, took the gun beating, you know, on the walls 3 asking me the structure, why are my walls so thick 4 and why are my closets so big. 5 And I'm still asking, "What's going on? I 6 don't want you to tell me down there where Jesse is. 7 Tell me up here because I have two kids. What is 8 going on here?" He never would answer me at all, and 9 we go back downstairs and next thing you know the 10 only -- they come out, he pulls out this marijuana -- 11 the marijuana plant, and threw -- dripping it through 12 the house and the guy asked him, "Did you photograph 13 that?" And he says no. 14 "Well, you better go back out there and 15 take a picture." So he plops back in there. 16 And I'm like, "Is this what it's about?" 17 you know, "What's going on?" I'm still thinking it's 18 something. You know, and they come up and he says, 19 "One marijuana plant?" You know, and I'm just 20 panicking at this time because I'm thinking it's 21 something much more than this marijuana plant still. 22 And until they put Jesse -- they took Jesse 23 and took him outside with the handcuffs. The guy 24 went through the drawers and everything because he 25 was helping Jesse get some clothes on to transport KANABAY COURT REPORTERS 607 1 him because he didn't have any clothes on. And I'm 2 outside. I'm still wondering what's going on. I 3 didn't find out until, like, I went back in the 4 house, they transported him, And I read the paper 5 that it was about this marijuana plant. 6 Q Okay. Did the police in your presence go 7 through the rooms? 8 A Yes. 9 Q Did you ever see them conducting any 10 search? 11 A Yes. 12 Q What were they doing? 13 A They were looking through my closets, 14 looking -- you know, they were all upstairs. They 15 were in Jesse's drawers because they had to be, you 16 know, to get his clothes, and they were just all over 17 the house. They were in my shed. I have a shed in 18 the back. They were back there -- 19 Q Okay. 20 A -- in that. 21 Q Did they ever make any mention to you that 22 they found anything other than what was growing out 23 of that dead plant? 24 A They never mentioned anything, but that's 25 all they left with was that. KANABAY COURT REPORTERS 608 1 Q Okay. 2 A They just told me, "He'll be back in an 3 hour," you know, which it wasn't an hour, but "he'll 4 be back in an hour." And when they came out with the 5 marijuana plant, that's the other thing. I'm like, 6 you know, "What's going on here?" you know. "You 7 know that I didn't plant this and you know what's 8 going on. You've lived in Largo. You've lived in 9 Clearwater long enough. You know what's going on 10 here, and you know who Jesse Prince is." And the guy 11 goes, "Well, it's your -- it's your house." And he 12 walked out the door. 13 MR. DEVLAMING: Thank you, Miss 14 Phillips. Thank you, your honor. 15 THE COURT: State? 16 MS. WARDELL: Yes, your Honor. Excuse 17 me, yes, sir. 18 REDIRECT EXAMINATION 19 BY MS. WARDELL: 20 Q I want to talk to you a little bit about 21 the search. Now, you said they went through 22 Mr. Prince's drawers in the bedroom, and that's 23 because he was in his bathrobe and they were 24 assisting him in getting some clothes to change into 25 to go down to the police station, right? KANABAY COURT REPORTERS 609 1 A I know they helped him get his clothes. 2 Q And he was in, I think, his bathrobe when 3 he answered the door? 4 A Yes. 5 Q Because he had been asleep? 6 A Right. 7 Q So they weren't picking through his 8 underwear and tossing things around trying to see 9 everything in this drawer. They got him some clothes 10 and they gave them to him? 11 A Right. 12 Q Okay. And as far as the entries into the 13 other rooms, that was for security to see if there 14 were people there. They weren't -- same thing. They 15 weren't taking your kitchen drawers out, rifling 16 through your silverware, they weren't going through 17 your china cabinet, going through your silver 18 drawers. They were checking the main compartments 19 like a closet or a bathroom to see if there was other 20 individuals maybe hiding, right? 21 A Right, and beating on the walls. 22 Q When you said it was a search, it wasn't a 23 search in a sense they were digging around looking 24 for contraband or illicit items. They were just 25 looking to clear the residence to make sure there was KANABAY COURT REPORTERS 610 1 no threat of harm to them, right? 2 A If you say so. 3 Q Well, did you see them picking through any 4 of your -- did they go into your bathroom and pick 5 through your cosmetic case? 6 A They went in the bathroom. I don't know. 7 They had me -- they told me to stay here. You know, 8 I couldn't go with -- the only place I could go was 9 upstairs with the guy that I was begging to tell me 10 what was going on. That's the only place. Other 11 than that, they told me to just stay there. 12 Q I'm just trying to clear up -- because you 13 told the jury they searched your home, and I'm just 14 trying to clear up, you know, what you meant by the 15 search. You went upstairs with him. He didn't go 16 into your kids' room and dump the kids' drawers 17 out -- 18 A He went in my kids' room, yes. 19 Q Did he dump their drawers out? 20 A No, he didn't dump their drawers. 21 Q He did a cursory look around to make sure 22 there was no threat of harm, right? 23 A Yes. 24 Q Okay. And you said that you were worried 25 about the kids that morning, right? KANABAY COURT REPORTERS 611 1 A Yes. 2 Q They swim in that swimming pool that's 3 enclosed? 4 A If I make them, yes. 5 Q Were you worried about them recognizing 6 that plant to be marijuana? 7 A No. 8 Q Were you worried about them when you were 9 at Wilson's bar all that time? 10 A Was I worried about -- 11 Q Were you worried about your children at 12 home when you were at Wilson's bar all that time? 13 A Wilson's is not even a quarter of a mile. 14 It's like a neighborhood bar on the corner. It's 15 not -- no, and my son is fourteen. 16 Q At the time he was thirteen and the other 17 one was nine, I think you said, right? 18 A He turned fourteen in December that year. 19 Q Okay. And when you were at Wilson's bar 20 you were out of the residence, right? 21 A Right. 22 Q Were you worried about your children when 23 you -- 24 MR. DEVLAMING: Objection, Judge. This 25 is totally irrelevant. KANABAY COURT REPORTERS 612 1 MS. WARDELL: Judge, they opened the 2 door with this concern about the children 3 during the warrant. 4 MR. DEVLAMING: I don't recall -- 5 THE COURT: Sustained. 6 BY MS. WARDELL: 7 Q You mentioned that this was, quote, all 8 about a marijuana plant. It's about a marijuana 9 plant that Mr. Prince knew was on his property, 10 right? 11 A Uh-huh, yes, ma'am. 12 Q Yes? And it's about a marijuana plant that 13 Mr. Prince knew was marijuana, right? 14 A Yes. 15 Q And he had over three months to get rid of 16 that marijuana plant if he wanted to, and he chose 17 not to, right? 18 A He don't just get rid of my, you know, 19 plants. 20 Q That's a very simple question. He had 21 three months to get rid of that particular marijuana 22 plant, and he chose not to, right? 23 A Yes. 24 Q Okay. 25 MS. WARDELL: I don't have anything KANABAY COURT REPORTERS 613 1 further. 2 MR. DEVLAMING: Nothing further, your 3 Honor. 4 THE COURT: Ma'am, you may step down. 5 State have any other witnesses you wish -- 6 I'm sorry. Do the jurors have any 7 questions? Thank you. State have any other 8 witnesses you wish to call? 9 MS. WARDELL: No, sir. 10 THE COURT: Okay. Counsel please 11 approach for a moment. 12 Is the State resting its case at this time? 13 MS. WARDELL: Yes, your Honor. 14 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 15 THE COURT: I forgot to let you make 16 your judgment of acquittal argument at the 17 end of your case. Do you wish to make that 18 argument at this time? 19 MR. DEVLAMING: Yes, Judge, and I would 20 just renew the same grounds. 21 THE COURT: Okay. Now, at the end of 22 the State's case, you renew the same 23 grounds? 24 MR. DEVLAMING: Correct. 25 THE COURT: All right. Now, do you KANABAY COURT REPORTERS 614 1 need a break before so you can set up for 2 your closing? Are you ready to go right 3 into it since -- actually, you have first 4 and last. Do you need a break? 5 MS. WARDELL: I would prefer to do all 6 of it at the same time, so I don't want to 7 let me go and break anywhere. My preference 8 would be I don't want to go, break, him go, 9 me go. So I hope for us just to all do it. 10 MR. DEVLAMING: Oh, yeah. I just need 11 to run to the back then real quick and then 12 I'm ready. 13 THE COURT: You're going to go first? 14 MS. WARDELL: No. I'm first. 15 MR. DEVLAMING: She's first. 16 THE COURT: You said you don't want a 17 break. 18 MS. WARDELL: In other words, I don't 19 want the three closings broken up. So if 20 we're going to break, I'd rather break now. 21 THE COURT: I see what you're saying, 22 you want a break now. I thought you were 23 telling me you didn't want to break your 24 closing up. 25 MS. WARDELL: I don't want to break me, KANABAY COURT REPORTERS 615 1 him, me up. I don't want a break between 2 me, him, me. 3 MR. DEVLAMING: She's not waiving 4 opening in other words. 5 THE COURT: That's what I thought you 6 were saying. Are you telling me now you 7 want to take a break right now? 8 MS. WARDELL: Yes, so that we can do 9 all of the closings in a row. 10 THE COURT: Okay. 11 MS. WARDELL: Does that make sense? 12 THE COURT: Yes. How much time do you 13 think you need to get ready? 14 MS. WARDELL: Just long enough to go to 15 the bathroom. 16 MR. DEVLAMING: Yeah, just a bathroom 17 break. 18 THE COURT: Five? 19 MR. DEVLAMING: Yep. 20 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 21 THE COURT: Ladies and gentlemen, we're 22 going to take a five minute break and after 23 that we're going to go directly into closing 24 arguments. Each side has forty-five minutes 25 for their closing, so I anticipate that KANABAY COURT REPORTERS 616 1 we'll be here for another hour and a half or 2 so. Five minutes, okay? Please take the 3 jury out. 4 Ladies and gentlemen, it's going to 5 actually be a fifteen minute break. I 6 apologize. I forgot I had to do something. 7 (OUTSIDE THE PRESENCE OF THE JURY) 8 THE COURT: We got to take fifteen. 9 (A RECESS WAS HAD) 10 THE COURT: All right. If there's 11 nothing else, please bring them in. Do you 12 want me to alert you at any particular 13 point? 14 MR. DEVLAMING: I'm going to tell you, 15 I told Miss Wardell, I got tagged once on 16 time. I probably -- my final argument will 17 probably be twenty minutes. Okay? But I'm 18 not going to take back any time I gave you. 19 THE COURT: I understand. 20 MR. DEVLAMING: I seriously doubt 21 you're going to have to tap your pen. If 22 I'm within five minutes, you can tap it and 23 you can jump off the bench and grab me by 24 the -- 25 THE COURT: I normally say five minutes KANABAY COURT REPORTERS 617 1 at some opportune point. Do you want me to 2 alert you, Miss Wardell, at any point? 3 MS. WARDELL: Judge, I kind of got my 4 mindset thing, so I'll probably be all 5 right. If I get close to twenty, I -- I 6 think I'll be all right. 7 THE COURT: Okay. So if you get up to 8 twenty, shall I say, okay, twenty minutes? 9 MS. WARDELL: Yeah, that's fine. 10 THE COURT: Done. 11 MS. WARDELL: I don't think it's going 12 to get to that point, but -- 13 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 14 END OF VOLUME IV 15 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS 617 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 V ) 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 618 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 619 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 620 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 621 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 622 1 P-R-O-C-E-E-D-I-N-G-S C-O-N-T-I-N-U-E-D 2 (IN THE PRESENCE OF THE JURY) 3 THE BAILIFF: The jury's in the 4 courtroom and seated, your Honor. 5 THE COURT: Ladies and gentlemen, both 6 the State and the Defense have now rested 7 their cases. The attorneys will present 8 their arguments. Please remember what 9 the -- that what the attorneys say is not 10 evidence. However, do listen closely to 11 their arguments. They are intended to aid 12 you in understanding the case. Each side 13 will have equal time, but the State is 14 entitled to divide this time between an 15 opening argument and a rebuttal argument 16 after the opponent has spoken. 17 Counsel for the State prepared to proceed 18 to closings? 19 MS. WARDELL: Yes, your Honor. 20 THE COURT: You may proceed at this 21 time. 22 MS. WARDELL: Thank you. May it please 23 the Court, Counsel. 24 Members of the jury, at the beginning of 25 this trial I asked that you return a verdict of KANABAY COURT REPORTERS 623 1 guilt based on the observations of law 2 enforcement, based upon the evidence that law 3 enforcement seized, and I'm once again asking 4 you to do that. 5 This is a case about the corroboration that 6 law enforcement obtained. This is not a case 7 where law enforcement went out and based solely 8 on the word of Barry Gaston or Brian Raftery 9 made an arrest or took evidence. 10 You may not like the snitch, you may not 11 like the person behind the snitch, but that 12 snitch is for another day and another time. 13 This isn't the State of Florida versus 14 Barry Gaston. His day is coming. This isn't 15 the State of Florida versus Scientology. It's 16 not the State of Florida versus Deneen Phillips. 17 Today is the State of Florida versus 18 Jesse Prince. And it's his action, his behavior 19 that you should stay focused on. It is time 20 that Jesse Prince be held accountable for his 21 part in this. It is time for Jesse Prince to be 22 responsible for what he did, his actions. He is 23 a grown man. It's time to stop shifting the 24 blame. It's time to focus on what Jesse Prince 25 did. KANABAY COURT REPORTERS 624 1 What the Defense is asking you to do in 2 this case is to take sides. The Defense wants 3 this to be Lisa McPherson Trust versus 4 Scientology. And, members of jury, I don't work 5 for Scientology. I answer to one person, and 6 that's my mother and she is not here. I don't 7 answer to Scientology, nor should you. And you 8 shouldn't be made to feel that if you return a 9 verdict of guilty in this case that you are in 10 any way condoning Scientology, its practices and 11 its beliefs. 12 I don't know much about the practices and 13 beliefs, and I don't care to know about it. 14 They don't control me, they don't tell me what 15 to do. They don't tell me how to put on this 16 case. I go to church, I put my money in the 17 plate and I come home. I don't follow the 18 Scientologist's beliefs, and you should not be 19 made to feel that you're a bad person or that 20 you are dirty in any way if you convict 21 Mr. Prince because Scientology hired the source 22 that led to law enforcement's involvement. 23 There's an adage from law school, if you 24 have the facts, you argue the facts; if you have 25 the law, you argue the law; if you don't have KANABAY COURT REPORTERS 625 1 either, you sit up here and you pound on the 2 podium. Well, I'm not going to yell at you and 3 I'm not going to scream at you. I'm going to 4 ask you to rely on the facts in this case to 5 convict Mr. Prince. 6 And I want to take you back to May 7th of 7 2000, the first time law enforcement enters his 8 home. Regardless of who brought up the subject 9 of this smoking of marijuana, it was brought up 10 and it was done in the presence of law 11 enforcement. According to law enforcement, the 12 defendant brought it up. "Hey, you guys want to 13 smoke?" According to Miss Phillips, Trinidad 14 brought it up. Who cares? It came up. He was 15 a willing participant. It was in his home. The 16 joint was rolled. A joint was smoked. He 17 touched it. He possessed it. 18 And you're allowed to believe that that was 19 marijuana based on the observation of law 20 enforcement. I don't have to have a lab witness 21 to come in and say, "I tested that joint that 22 was smoked." Law enforcement can tell you based 23 on their training and their experience, the 24 odor, the appearance, that it was marijuana. 25 Miss Phillips told you it was marijuana. That KANABAY COURT REPORTERS 626 1 is not in dispute. 2 This case could stop right there. This 3 case could stop May 7 in his computer room 4 when he put that joint in his fingers and 5 smoked it. It doesn't have to stop there. 6 You know, members of the jury, if 7 Scientology was so controlling in this case, 8 then why don't I have a count for every time the 9 man was around marijuana? Why isn't there a 10 separate count for May 7, a separate count for 11 August 6, a separate count for August 11? I 12 could have stacked that man until I'm blue in 13 the face, and I didn't do that. I'm trying to 14 be reasonable. 15 And if you remember in the beginning of 16 this case, Mr. DeVlaming mentioned to you that 17 this was a misdemeanor. Okay? And he talked a 18 lot about, well, you didn't see Jesse watering 19 the plant, you didn't see Jesse put fertilizer 20 on the plant, you didn't see him tend to the 21 plant. You know what? All that goes to a 22 charge called cultivation of marijuana. 23 Cultivation of marijuana is a felony. 24 Cultivation of marijuana is not the charge that 25 Mr. Prince is charged with today. He is charged KANABAY COURT REPORTERS 627 1 with misdemeanor possession. It's another 2 windfall he got in this case. You know, the 3 State is trying to be fair. The State is trying 4 to be reasonable. 5 Judge Andrews is not going to instruct you 6 that in order for you to find him guilty of 7 possession the State has to prove he watered 8 that plant. That's not what he is going to tell 9 you. 10 He is going to tell you that possession can 11 be actual or constructive. Now actual, that's 12 the gimme. That's when he has the joint in his 13 hand. There's no doubt about that. That's 14 actual. Constructive is when the thing -- and 15 here the thing is going to be marijuana, whether 16 it be a joint or a plant, but constructive is 17 when the thing is in a place over which he has 18 control. 19 There's two ways to prove constructive. 20 Number one, is it in a place over which he has 21 control? Well, the joint was in his hand. All 22 right? But let's take that aside. Let's go to 23 the plant in the pool area. That's his house. 24 That's his pool. He goes out there. Does he go 25 on daily basis? Who knows? Who cares? It's KANABAY COURT REPORTERS 628 1 his pool. 2 His own girlfriend told you he knew it was 3 there. It was there for three months. And, 4 sure, he was throwing some plants away, but he 5 chose not to throw the bigger one away. Did he 6 know it was there? Yes. Did he know it was 7 marijuana? Yes. The thing is in a place over 8 which he, Jesse Prince, has control. Okay? 9 Possession can be joint. You don't have to 10 say, well, gee, Deneen did it too, so therefore 11 I can't convict Mr. Prince. No. Possession can 12 be joint. Two people can possess the same 13 object. And, like I said, Deneen Phillips is 14 another day, another time. Today is 15 Jesse Prince, did Jesse Prince have control over 16 that thing on the porch. 17 And I would suggest to you based on 18 everything you have heard about all the things 19 that have been going on during that time frame 20 he absolutely had control over that plant. Now, 21 did he go out and touch it every day and stroke 22 it and pet it? No. I'm not saying that. I'm 23 saying it was on his property, and he knew of 24 its what they call illicit nature. Illicit 25 means illegal or the fact that it was a KANABAY COURT REPORTERS 629 1 controlled substance. 2 So he knew, and that's what the judge is 3 going to use, did he know of its, quote, illicit 4 nature? Of course he did. He smoked marijuana. 5 He knew it was marijuana. So he knew of its 6 illicit nature. So that's -- you know, so 7 that's May 7th. 8 But let's go further. Let's go to August. 9 And, same thing, law enforcement goes back to 10 corroborate. When you serve a warrant it's got 11 to be close in time to your observation. You're 12 not going to go in August to serve a warrant on 13 what you saw in May. You need to go back one 14 more time. 15 And you heard Largo's was a small 16 agency. Only one guy was doing all the 17 narcotic investigations with the exception 18 of they had that two months when they tried 19 to get a narcotics task force he, Bruno, 20 said he was on. But other than that, it's a 21 one-man show. And Jesse Prince wasn't the 22 only thing he had going, plus he had knee 23 surgery. 24 So it basically got to the point where here 25 it is August and, you know, he was going to KANABAY COURT REPORTERS 630 1 finish out this investigation. So he doesn't go 2 and get his warrant based upon what he saw in 3 May. He goes back into the house. Is the stuff 4 still there? Yeah, it's still there. Miss 5 Phillips told you she knew it was there back in 6 June or late spring. Mr. Prince knew it was 7 there back in June or late spring. It's still 8 there. 9 Now, is that the exact plant that was seen 10 in May? Who knows? Who cares? Crosby said 11 when he saw it the first time it was four or 12 five plants. Well, we know she had tons of 13 plants out there, and according to her own 14 testimony they were springing up everywhere and 15 they tried to pull them out. So who cares if 16 the plant that was seized was the plant that was 17 seen in May? It doesn't matter. Either way 18 it's marijuana. Either way it's there. 19 And Mr. Gaston testified that when he saw 20 it it was in a white ceramic plant. That's just 21 more marijuana on their property. The officer 22 said when he saw it few days before the warrant 23 he saw marijuana in a black plant. He saw one 24 stalk with what appeared to be -- he saw, sorry, 25 one pot with what appeared to be four or five KANABAY COURT REPORTERS 631 1 plants in it. 2 Well, we know he seized one pot, one plant. 3 So is the marijuana that Officer Crosby saw on 4 August 6 the same marijuana that was seized on 5 the 11th? Who knows? Who cares? I don't have 6 to prove that. 7 I only have to prove that on any one of 8 those three days he was in possession, and the 9 fact that three different pots are involved just 10 lends credence to the State's theory that it was 11 out there and it was growing. It wasn't a 12 happenstance. They knew -- they knew what they 13 were doing. They knew it was out there. And 14 they certainly enjoyed smoking it. You know? 15 And, by the way, you know, I didn't bring 16 out all this extra stuff that was going on. If 17 you recall, in my case I brought in two officers 18 to talk you about May 7 and about August 6 and 19 August 11. I didn't do a bunch of trash talking 20 about all this stuff going on at Wilson's bar 21 and all this, you know, poison, if you will, 22 against Mr. Prince. I didn't do that until 23 what? I didn't do that until Gaston starts 24 taking the stand and the Defense goes after him. 25 Well, you know, if they want to play that KANABAY COURT REPORTERS 632 1 game, okay, I got some information too and I'm 2 going to bring it to your attention. But I'm 3 not asking you to convict him based upon all 4 that extra stuff, but all that extra stuff goes 5 to show you this wasn't a setup. All that extra 6 stuff goes to show you that Mr. Prince knew 7 exactly what he was doing, and he was absolutely 8 one hundred percent a willing participant. 9 You know, there is an old story from back 10 in England when hunters would go after the fox. 11 They would get out there and they would have 12 trainers, and they would bring their dogs and 13 they wanted to see who was going to be the best 14 dog to give it to the king because the king 15 would take the dog on the next fox hunt. 16 They gave the best dog to the king. And 17 the way they did this was they set the fox loose 18 on a set trial. Before they set that fox loose 19 they took a bunch of red herrings, stinky, 20 smelly fish, and they drag them along the trail 21 trying to throw the dog off the track, and they 22 let the dogs free. 23 Now, all those dogs that got distracted and 24 went off after the red herring scent, that's not 25 the one the king wants. He wants the dog that KANABAY COURT REPORTERS 633 1 can stay right there on the track and follow it 2 and get to the fox at the end. That's the dog 3 that the king's going to take on his hunt the 4 next week. 5 Members of the jury, don't get off the 6 track in this case. All this stuff about 7 Scientology, all this stuff about fair game and 8 all these other issues that are coming into play 9 are designed to get you to take your attention 10 and your focus off of Jesse Prince. All that 11 other stuff is red herrings. The Defense wants 12 to talk about everybody in the world but Jesse 13 Prince. They want you to look at everybody's 14 conduct in this case but Jesse Prince. 15 If you'll notice, there's not one piece of 16 undisputed uncontroverted evidence as it comes 17 from law enforcement. The Defense hasn't 18 attacked that Officer Crosby didn't see what he 19 saw. There's no attack that Officer Bruno 20 didn't seize what he seized. There's nothing to 21 dispute that Jesse Prince was in possession of 22 marijuana. 23 They want a freebee, if you will, or a 24 walk pass, if you will, solely because 25 Scientology is involved. They want you to KANABAY COURT REPORTERS 634 1 be so poisoned against the idea -- the 2 ideologies and policies and the things that 3 Scientologists believe that you dislike them 4 so much you're willing to cut him a break 5 for no reason other than the fact that he 6 used to be former Scientologist. 7 Members of the jury, a former Scientologist 8 should not be able to hide behind that shield. 9 Just because you used to practice that religion 10 and now you don't anymore, that's not a one-way 11 ticket to do whatever you want whenever you want 12 because when you're caught you can just say, 13 "Hey, the Scientologists were involved. They 14 hate me. The set me up. I can walk into Publix 15 and steel whatever meat I want because there 16 might be a cashier that that used to work for 17 Scientology now. They set me up. I can do it." 18 He is not above the law. He is not untouchable 19 just because he used to be a former 20 Scientologist. 21 I want you to think back to jury selection 22 when we talked about the two cashiers at K-Mart. 23 Number one really didn't like number two. 24 Number one saw number two conceal merchandise. 25 You didn't want to convict number two based KANABAY COURT REPORTERS 635 1 solely on number one. You wanted the manager to 2 get involved. You wanted the manager to 3 intervene and corroborate what cashier number 4 two did. 5 That's exactly what we had here, and each 6 of you told me you would return a verdict of 7 guilt if the manager got involved and 8 corroborated. And in this case Scientology is 9 cashier number one, and Jesse Prince is cashier 10 number two. They saw him doing it. You may not 11 like how they got involved, but they saw him 12 doing it. And the manager is Crosby. He 13 stepped in between and made his independent 14 observations and his independent evidence in 15 this case. 16 Same thing with Darryl Strawberry. 17 Remember the crackhead off the street that 18 waited for him to get out of his counseling 19 session, "Come on, Darryl, get in my car." 20 Light up the crack pipe, put in front of his 21 nose. That's one of the most odious, 22 offensive-type things, you know, in our society, 23 for somebody smoking crack all day every day and 24 take it and stick it up under somebody's nose 25 when you know they're recovering, and that KANABAY COURT REPORTERS 636 1 person did that. 2 But you know what? Darryl Strawberry 3 succumbed. He took a smoke, a hit as they call 4 it, off that pipe. And each of you agreed that 5 Darryl Strawberry, no matter how repugnant that 6 crackhead was -- 7 MR. DEVLAMING: Your Honor, I don't 8 like to interrupt closing arguments, but I 9 would like to approach and object about the 10 use of a case that is mentioned by name. I 11 think it's improper. I made the same 12 objection in voir dire, and I'd like to 13 affirm that objection. 14 THE COURT: Overruled. 15 MS. WARDELL: No matter how repugnant 16 that crackhead was, each of you agreed and 17 made a promise to the State that 18 Darryl Strawberry should be held accountable 19 for his part, for his actions. And in that 20 case a judge sentenced him. The judge gave 21 him what she believed to be the appropriate 22 sentence. 23 And in this case you've got to trust that 24 Judge Andrews, who's been around long enough, 25 seen enough, experienced enough, that he's going KANABAY COURT REPORTERS 637 1 to do the right thing in this particular case. 2 And if for one minute, one fleeting second 3 in the course of this two days, you stopped and 4 you thought, gee, I wonder what he is going get 5 or I wonder what's going to happen to him, if 6 you're looking and for one second the thought 7 has entered your mind, then you've already 8 convicted him. You've already found him guilty 9 if you're wondering what is going to happen. 10 You're going to have to trust Judge 11 Andrews, learned Judge Andrews, to do the right 12 thing in this case and impose the appropriate 13 sentence. He's heard all the facts. He'll do 14 the right thing, and I'm asking you to do the 15 right thing, rely on the testimony that you 16 heard from law enforcement, and convict 17 Mr. Prince for his actions and for his role in 18 what he did. 19 THE COURT: Are you done? Thank you, 20 Counsel for the State. Counsel for the 21 Defense wish to make a closings argument? 22 MR. DEVLAMING: Thank you, 23 Judge Andrews. Please the Court. 24 Members of the jury, we told you it would 25 be probably be a two-day trial, well, we were KANABAY COURT REPORTERS 638 1 right. You'll be getting the case probably -- 2 it's twenty minutes after three. Probably in 3 about sixty minutes. 4 In 1789 Thomas Jefferson made a comment. 5 He said that "trial by jury is the only anchor 6 imagined by man by which a government is held to 7 the principles of its constitution." 8 Thank God that we have trial by jury, 9 because juries get to administer the correct 10 result in every case. They get to sift through 11 evidence and make the decision whether or not 12 there is fundamental fairness in the way a 13 fellow citizen is treated and handled in our 14 criminal justice system. 15 No one grows a marijuana plant on purpose 16 in a dead rubber tree plant planter. You don't 17 do it unless it's somebody threw something in 18 it, unless someone had the ability to have 19 access to it. Because this is what this trial, 20 ostensibly, if you believe the prosecutor's 21 theory, is all about. This. This is what it's 22 all about. 23 Now, let's take a look at the charging 24 document here, if this thing works. You'll see 25 Miss Wardell's signature on the bottom of the KANABAY COURT REPORTERS 639 1 information filed in this matter. Let's see 2 what the State has to prove. Jesse Prince, Jr., 3 in the County of Pinellas, State of Florida, on 4 the 7th day of May -- 5 Let's take these one at a time. The 7th 6 day of May. Members of the jury, that's the 7 first day that Detective Crosby and Barry Gaston 8 went to the Prince residence. That's the day 9 that they want you to convict because Mr. Prince 10 was allegedly smoking marijuana. That's a 11 problem here. 12 Number one, can you imagine, can you 13 imagine our court system when we bring somebody 14 in and say, Frank, did you see Bill smoke 15 marijuana? Yep. Did you smell it? Yep. 16 Marijuana? Yep. And build a case on that. And 17 that's what they say. 18 There's no lab reports. There's no proof. 19 They want you to be able to convict on the basis 20 of May 7th because somebody said I saw it. I 21 saw somebody smoke marijuana. Can you imagine? 22 Can you fathom how many people will come through 23 this system because somebody says I saw somebody 24 else. 25 But there is a bigger problem with May 7 KANABAY COURT REPORTERS 640 1 and you know exactly what it is. It's Mr. Fifth 2 Amendment. It's Mr. Fifth Amendment. Now you 3 know, don't you? Now you know why he took the 4 Fifth. And it was Deneen Phillips that told you 5 why he took the Fifth. A person who after April 6 24 became a member of law enforcement -- and 7 that's what an agent is. 8 A confidential informant becomes an agent 9 of law enforcement. He becomes a pseudocop when 10 he's given that authority. And before that day, 11 before that day, he's the very one that provided 12 the drug that was smoked by Detective Crosby. 13 He's the one that brought it into the house. He 14 is the one that offered it. He is the 15 individual that is responsible for it, and now 16 the government comes forwards and says, ah, now 17 you're guilty of possession. 18 Of course he wouldn't answer those 19 questions. I couldn't give that guy immunity. 20 I couldn't. I don't have the ability to give 21 any immunity. But we know now, don't we, why he 22 took the Fifth Amendment. He told us exactly 23 what it is. 24 So on May 7 what we have is government 25 produced drugs, that's uncontroverted. They KANABAY COURT REPORTERS 641 1 haven't brought Gaston back on the stand, give 2 him immunity and said, okay, fess up. They 3 haven't done that. So it goes uncontroverted 4 that the very marijuana they want you to convict 5 this man for was provided by the very government 6 that is prosecuting him. 7 And/or the 6th day of August. Now, the 8 6th day of August is the one where Gaston 9 came by and tried to get him to sell 10 marijuana. Remember that? "Jesse, you got 11 any? We're going down to the Keys. We want 12 you to sell us some marijuana." 13 "Don't have it." 14 All that stuff that he gave him now is 15 gone. All that stuff that Gaston's buddy at 16 Wilson's gave is gone. "I don't have any to 17 sell you." So he didn't smoke any marijuana. 18 He didn't have any left. If they're growing all 19 these plants and curing all this dope, they got 20 plenty of marijuana. All they got is what came 21 out of the that little, pot and we'll get to 22 that one in minute. 23 So on the 6th, do you remember what Crosby 24 said? Remember what he said he saw there? I 25 showed him a black pot. To be honest with you, KANABAY COURT REPORTERS 642 1 I found it on the side of the road. Did it come 2 in a black pot? 3 Yeah, it came in a black pot. This is the 4 6th -- in the black? 5 Yeah. 6 You see any evidence of a black pot? Did 7 you see any evidence of any marijuana coming 8 from a black pot? Did you see any lab report or 9 any evidence coming from a black pot on the 10 6th?" 11 No, no, no, and no. 12 So now we're back to day he was arrested. 13 The people came into the home the way Deneen 14 described. And maybe that's the way it's 15 supposed to be. I don't know. I don't know. 16 But they went through the home and went through 17 every room in the home. 18 If they would have found any contraband the 19 officer said we would have been able to take it. 20 It's called a Plain View Doctrine. You can take 21 anything you see in plain view, any marijuana 22 drying, any marijuana that was laying there 23 drying out, no grow lamps, no curing process, 24 nothing like that. 25 Every room in the house they went through KANABAY COURT REPORTERS 643 1 to make sure there was nobody in it. Nothing. 2 And of course the Prince family was asleep. 3 They had no idea that was going to happen, 4 except that one guy filming on the other side of 5 the road. 6 Prince did not cultivate that plant. 7 Prince did not plant that plant. Prince did not 8 move that plant, water that plant, do anything 9 to the plant that was taken out of this bag, 10 that little scrawny little thing that they came 11 and brought six SWAT team members to take that 12 little scrawny plant out of that house. He 13 never did anything to that plant. 14 But really this is what this trial is not 15 about. And you know it's not about that little 16 scrawny plant. You know what this trial is all 17 about is that. It's what we started from the 18 very beginning of this case. You know it's a 19 law firm that hired private investigators. 20 And they put up these, I call them 21 firewalls. You know they want everybody 22 didn't -- you know, you can get to one but you 23 might not be able to get to the other. The 24 manner in which they worked, Fabrizio works then 25 with Raftery, who reports back to Shaw, but Shaw KANABAY COURT REPORTERS 644 1 doesn't have any connection with Fabrizio. 2 Firewalls. Firewalls, so you can't get back the 3 parent company. Fabrizio dealing with Gaston. 4 How can he take the Fifth Amendment? How 5 can there be a fair prosecution in any case 6 where you're asking how did you get into that 7 house? What did you say to these people? What 8 was in your pocket? What did you bring to these 9 people? You know Fabrizio says -- I think it 10 was Fabrizio. I said, you know, "Does Jesse 11 have a problem with alcohol?" 12 "Yeah, he drinks too much." 13 You bring alcohol to somebody who drinks 14 too much? Do you bring dope to someone that you 15 later then say you're in possession of that? 16 You know, members of the jury, a church, a 17 real church, is a house of God. You tell me 18 what house of God hires somebody like Gaston to 19 be able to infiltrate a life, to get into his 20 home, to get into his family, to get into his 21 house, his house, his home? And they're telling 22 him, you know, "the Church of Scientology is 23 going through my garbage. They're looking after 24 me. They're following me." And, you know, I'll 25 bet you he was laughing. I bet he was laughing KANABAY COURT REPORTERS 645 1 because he was thinking, yeah, I'm in your home. 2 This is a henhouse and I'm the fox. 3 But he befriended that family. The kids 4 thought the world of Barry Gaston, and the most 5 he came up with was that scrawny little plant. 6 And what they hope you'll do, and you know who 7 when I say the word "they" hope you do, is that 8 you will convict him in this case. 9 But if you remember what the testimony was 10 of the investigators in this case, they need 11 this conviction to impeach him, to discredit him 12 in another civil case where there is a lot at 13 stake. So is this case about -- all about 185 14 days of going in, of meeting the ladies, Gaston 15 coming into town night after night and going to 16 Prince's house, becoming a CI, holding dope, 17 bringing dope, possessing dope, handing dope by 18 Gaston, until such time on the very end they get 19 a little scrawny little plant? 20 That's not what this case is about. This 21 is what they want, and this is what they think 22 they got. So if we go through dates, 7th of May 23 is the very marijuana provided by a government 24 agent; the 6th of August, Jesse refuses to sell 25 any marijuana but there's something in a black KANABAY COURT REPORTERS 646 1 pot out by -- that's attended by his girlfriend 2 among other tropical plants. On the 11th day of 3 August I asked the officer, I said, "Did you 4 ever see Jesse in possession of that pot?" He 5 said no. 6 So legally they failed completely to prove 7 this case, but I want to get by that because you 8 know he was set up. You know what happened in 9 this case. I think when you scrutinize it and 10 you listen and you talk about the witnesses in 11 this case, you talk about Gaston when he was 12 testifying, about the things he said, he didn't 13 say -- 14 And you know what? I know you saw in the 15 back of the courtroom what was happening. I 16 know you did because I looked at you. You saw 17 it as well as I. You saw the signals. You saw 18 what was going on in this case. 19 You know with all these cameras around here 20 this is not just a simple marijuana case of some 21 dead rubber tree. You know it's more than this. 22 And what I'm asking you to do is don't do the 23 church's biding. Don't convict this man because 24 of this type of evidence where the reason for 25 conviction is totally unfair and it's unjust, KANABAY COURT REPORTERS 647 1 and it's totally unwarranted for Mr. Prince to 2 have to suffer. Thank you. 3 THE COURT: Thank you, Mr. DeVlaming. 4 Counsel for the State, you wish to make 5 rebuttal argument? 6 MS. WARDELL: Yes. 7 THE COURT: Please proceed. 8 MS. WARDELL: Members of the jury, two 9 wrongs don't make a right. And let's get 10 something straight here. I'm not happy with 11 Barry Gaston. He's no friend of mine. I 12 didn't call him and I didn't give him 13 immunity. If I wanted to pour the trash on 14 thick from Mr. Prince and I wanted to just 15 sprinkle everything against him, I certainly 16 could have. 17 I could have called Barry Gaston in my case 18 in chief. All I had to do was hand him a 19 subpoena and say, Sit up there and tell me all 20 the dirt you got, and I could have done it, and 21 I didn't. I would love that. I would love that 22 because I could prove my case in a heartbeat. 23 Okay? 24 Now, I want to talk to you about this 25 supposed, quote, impeachment that the Defense KANABAY COURT REPORTERS 648 1 has several times brought up to you to make you 2 think your doing Scientology a favor. All 3 right? When a witness takes the stand in any 4 case, be it criminal or civil, the only thing -- 5 MR. DEVLAMING: Objection, Judge. May 6 I approach? 7 THE COURT: Please. 8 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 9 MR. DEVLAMING: Your Honor, if she is 10 going to go and start talking about law and 11 how -- what you can use to impeach somebody 12 on the basis of a conviction or a statement 13 involving, I guess, false statements or what 14 have you, impeaching information is not 15 necessarily testimonial. In other words, 16 you can impeach somebody by discrediting 17 their character to other people without 18 necessarily being in the courtroom. 19 So I would object to her telling the jury 20 the law in this respect. 21 MS. WARDELL: Judge, I'm allowed to 22 argue any law that is out there. If 23 Mr. DeVlaming had a problem with that, he 24 was the one that raised it. And right there 25 there's a misleading inference to these KANABAY COURT REPORTERS 649 1 jurors, and I'm certainly entitled to at 2 least argue that this conviction isn't going 3 to be used as impeachment, and that's what 4 I'm going to say, this conviction. Because 5 that's the law. This misdemeanor conviction 6 will not come out in that case. 7 MR. DEVLAMING: Judge -- sorry. 8 MS. WARDELL: I mean, he opened the 9 door. I certainly wouldn't have gone there 10 but for I was waiting for it. I knew he had 11 brought it out in his case. I wasn't going 12 to mention it until he brought it up in his 13 closings. 14 MR. DEVLAMING: But it's not -- 15 MS. WARDELL: It's fair for me to 16 respond. 17 MR. DEVLAMING: Sorry. If I would have 18 said testimonial impeachment, I think she's 19 absolutely right. I didn't. 20 THE COURT: If you would have said 21 testimonial impeachment why is that 22 different? 23 MR. DEVLAMING: Because they when take 24 the stand what she is going to explain to 25 the jury may very well be accurate. But you KANABAY COURT REPORTERS 650 1 can impeach somebody not necessarily in the 2 courtroom. You can impeach their character. 3 You can give it to the news media. You can 4 put it in the internet. You can impeach 5 them in many ways. 6 THE COURT: Overruled. 7 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 8 MS. WARDELL: Okay. I want to talk to 9 you about impeachment and why what 10 Mr. DeVlaming said to you isn't exactly true 11 and why this isn't going to help the 12 Scientologists in furtherance of their 13 impeachment. All right? When a witness 14 takes the stand and comes in and testifies, 15 to impeach them with regards to a criminal 16 conviction it has to a felony. Not only 17 does it have to be felony, it's -- 18 MR. DEVLAMING: Judge, I'm going to 19 object. That's a misstatement of the law. 20 It doesn't have to be a felony. 21 THE COURT: Sustained. Hold on. Let 22 me finish. I'm going to overrule the 23 objection for a moment. There is two ways. 24 MS. WARDELL: I'm going over the first 25 one first. KANABAY COURT REPORTERS 651 1 Be it law enforcement or be it a citizen 2 such as Barry Gaston, Raftery, Miss Phillips, if 3 they have previously been convicted of a felony, 4 then opposing counsel is entitled to say, 5 "Ma'am, have you ever been convicted of a 6 felony?" 7 "Yes, I have." 8 "Ma'am, how many times?" 9 "Two." 10 You didn't hear that in this case because 11 it wasn't appropriate for any of these 12 witnesses. Okay? So if Mr. Prince is 13 convicted -- this is a misdemeanor. Defense 14 told you that. 15 The fact that he is convicted of a 16 misdemeanor would not come out in any civil 17 trial between Scientologists and the Lisa 18 McPherson Trust. Nobody is allowed to ask him 19 in court when he is testifying, sir, have you 20 been convicted of a misdemeanor possession of 21 marijuana? It's inadmissible. It's not coming 22 in. 23 The second way to impeach somebody based 24 upon a conviction is if that crime involved, 25 quote, dishonesty. That would be a petit theft, KANABAY COURT REPORTERS 652 1 a worthless check, something of that nature. 2 Possession of marijuana is not a crime involving 3 dishonesty. So no matter how you look at it, no 4 matter how you cut it, this charge is not, 5 quote, impeachment that we're feeding to the 6 Church of Scientology. 7 Those are the rules. Those have been the 8 rules for years. Nothing just changed in the 9 last six months. When Mr. DeVlaming was in law 10 school those were the rules of conviction 11 impeachment. When I went to law school those 12 were the rules of conviction impeachment. Have 13 you been convicted of a felony or a crime 14 involving dishonesty. And this one doesn't 15 count. This conviction cannot and will not be 16 used as impeachment to further the cause of the 17 Scientologists, and I want to make sure you 18 understand that. Okay? 19 Now, we've heard a lot about this pulling 20 up of smaller plants, and, you know, just for 21 the life of me I tried and tried and tried to 22 make that make sense. How does somebody keep 23 seeing these random marijuana plants in these 24 random planters in their pool area and keep 25 pulling them up when your Jesse Prince. This KANABAY COURT REPORTERS 653 1 isn't joe blow citizen. This is Jesse Prince, 2 former member of Scientology. This is 3 Jesse Prince, somebody who believes he's been 4 labeled a -- I don't remember what the word was. 5 It something about a defector. Okay? This is 6 him. 7 He knows Scientology. He knows their 8 tactics. He has reason to believe he is 9 surveyed. He has reason to believe they're 10 going through his garbage. Yet the man pulls up 11 random marijuana plants and throws them in the 12 garbage, the very garbage that his supposed arch 13 enemy number one is going to rift through? That 14 makes no sense. It makes no sense because it 15 didn't happen. 16 He may be pulling them up all right, but he 17 ain't pulling them up and throwing them away. 18 And why do you only pull up the supposed small 19 ones and leave the big one to grow? Deneen 20 Phillips' uncontroverted -- his fiancee, "We 21 left it there. We knew it was there." It got 22 water every time the sprinkler was on. It was 23 in the sun. 24 Detective Crosby told you on one of the 25 visits that he even said, "Oh, it's easy to KANABAY COURT REPORTERS 654 1 grow. All it takes is sun and water," and 2 actually slid it out a little bit. The Defense 3 told you he never touched it. He pulled the 4 plant out a little bit to indicate all it needs 5 is a little sun. Okay? 6 And if you're so set up and if you think 7 these people are so -- so bad that they would 8 follow you, why do you go from late spring to 9 early June all the way to August without doing 10 something about it something about it? Why 11 don't you call one of those investigators that 12 this team has? Why don't you call Mr. DeVlaming 13 who everybody in that organization knows is 14 available as their attorney? 15 This wasn't -- Mr. DeVlaming's not new to 16 them. You heard two different people tell you 17 he has represented them in the past, the other 18 members of the trust. They had access to him. 19 They could have called him, "Denis, help, random 20 marijuana plants are showing up in my pool area. 21 Mr. Emmons, Lisa McPherson Trust private 22 investigator, help." 23 Mr. Emmons can go determine the identity of 24 Rinzy Trinidad, but they can't call him and say, 25 "Come figure out who's putting all these KANABAY COURT REPORTERS 655 1 marijuana plants in my pool area. Call the 2 police. Call -- I want to tell you right now I 3 don't want nothing to do with this. Look at 4 this. Could you just help me out here? I want 5 it documented that random marijuana plants are 6 showing up in my backyard." 7 It makes no sense. You got two kids that 8 you're supposedly so worried about, yet for all 9 this time from late spring early June all the 10 way to August you know or you think that people 11 are coming in and planting marijuana plants and 12 you don't do anything about it? You know that 13 the access between the area where supposedly 14 you're being set up and your house the only 15 thing that separates you is a sliding glass 16 door, and you don't do anything about it? You 17 sleep every night with a sliding glass door from 18 your bedroom to this pool area where the 19 marijuana plants are and you don't for three 20 months do anything about it? 21 It's clear they knew from that spring time 22 frame to August that these plants were 23 supposedly popping up. It makes no sense that 24 if you think you're being wronged, if you think 25 your setting up, somebody like Jesse Prince KANABAY COURT REPORTERS 656 1 doesn't let it go that long without doing 2 something about it. Fix the screen door. Put a 3 lock on it. Put a latch on it. 4 Set up a hidden video. That's a 5 no-brainer. I mean, a non-former member of 6 Scientology can think I think I'll put my camera 7 out back. I think I'll just call somebody to 8 tell somebody. It doesn't make any sense that 9 way. And if you're so paranoid about 10 Scientology being out to get you, why do you let 11 a virtual stranger into your home? 12 They meet Rinzy one time, hi and bye, in 13 the bar. The next time they're invited to have 14 a smoke. And nobody made them go out and have 15 that smoke. And both of them knew up front 16 going outside was for the purpose of smoking 17 marijuana. And recall whose hand that marijuana 18 was placed in. Who took that marijuana from 19 Wilson's? Jesse Prince. Nobody made him take 20 that marijuana. 21 And there is a tenuous relationship between 22 this Rinzy Trinidad and the white male that 23 provided the marijuana. It's speculation on 24 Miss Phillips' part that white male was 25 connected to Trinidad as opposed to some random KANABAY COURT REPORTERS 657 1 patron in the bar that, you know, wanted to 2 smoke marijuana with them. 3 I suggest to you he's probably not 4 connected because if you recall the 5 Scientologists specifically or their employer 6 specifically hired a black infiltrator because 7 that's the type of person that can go in this 8 area. Well, why would they go out of the their 9 way to hire a black PI and then use a white one 10 to hand him marijuana? He was just a random 11 patron at the bar. 12 Anyway, who cares? Maybe he was connected 13 to Trinidad. Who cares? Nobody made Mr. Prince 14 take that baggie of marijuana. Nobody made him 15 take it home with him into his house and put it 16 in his little black box. Nobody made him, as 17 Miss Phillips said, get four or five joints out 18 of it. 19 Mr. Prince is a grown man. He's 20 responsible for what he does. Now, don't tell 21 me Scientology has that much power over you that 22 they can get you to smoke marijuana, and here it 23 is, smoke it. Now, you make this decision to 24 take that marijuana. 25 You know, and speaking of that, none of the KANABAY COURT REPORTERS 658 1 State's witnesses had to be admonished by the 2 judge on two separate occasions. You know, who 3 sat up here and had to be -- twice you guys had 4 to leave so the judge could admonish him that he 5 was violating a court order. 6 He wanted to talk to you about the tactics 7 of Scientology. He didn't talk to you about his 8 tactics. He was here to put on a show for those 9 folks. He was here to push it. He was here to 10 stretch it. He was here to intentionally and 11 wilfully violate a court order and say things to 12 you he knew he wasn't supposed to say, things he 13 knew weren't true. Because they got some 14 motivation too. They got 1.3 million dollar 15 bank motivation. 16 And this man up here was just feeding fuel 17 to the fire, making them proud of him. He 18 doesn't care what happens. What he cares is 19 they're proud of him for what he did today. Ha, 20 the judge is going to tell me not to say it. 21 I'm going to do it anyway. Let's talk about 22 their tactics. None of my witness violated a 23 court order. None of my witnesses caused you to 24 be taken out and be yelled out. 25 Defense asked you to imagine, imagine being KANABAY COURT REPORTERS 659 1 convicted because Jack says John was smoking 2 marijuana. That's not what I'm asking you to 3 do. What Mr. DeVlaming asked you to do was to 4 disregard the law because the law in this State, 5 as we live today, allows a law enforcement 6 officer with training and experience to tell you 7 that what he saw was marijuana because he 8 recognizes it on sight and because he recognizes 9 it by smell. 10 That is sufficient under our laws. There 11 is no rule that says a lab analyst must come in 12 as it relates to that joint that law enforcement 13 saw being smoked. So he has asked you to 14 disregard the law when he made that analogy 15 about Jack seeing Jill smoke it. 16 But you know what? I don't have Jack 17 saying Jill smoked it. I got his fiancee saying 18 on May 7, the date charged in the information, 19 that he touched it and smoked it, and I got law 20 enforcement. Law enforcement ain't Jack. Law 21 enforcement, twenty years experience -- I 22 started this whole thing saying I'm not going to 23 bring just Trinidad in here to make this case. 24 If that were the case, fine, I agree. I'm not 25 going to make a case on just Trinidad saying KANABAY COURT REPORTERS 660 1 this happened. Law enforcement and his fiancee. 2 Think back to the jury selection when you 3 were asked about, you know, how you would feel 4 if you were being surveilled and, you know, 5 would that aggravate you, and remember the lady 6 that was sitting by the gentleman with the 7 glasses on the second row, this was one lady 8 said, "You know, I would be aggravated if I was 9 being surveilled, but I'm not going anything 10 wrong --" 11 MR. DEVLAMING: Judge, I'm going to 12 object. I'm going to object. It's highly 13 improper to talk about what is not in 14 evidence in this case. Voir dire is not in 15 evidence in this case. 16 MS. WARDELL: Judge, I can ask the jury 17 to think back to what was said and hold them 18 to the promises and the commitments that 19 were made. 20 THE COURT: Overruled. 21 MS. WARDELL: Okay. Remember she sat 22 right there and she said, "Yeah, I would be 23 aggravated that I was followed, but I'm not 24 doing anything wrong, so I guess it really 25 wouldn't matter"? Well, you know what? KANABAY COURT REPORTERS 661 1 Yeah, Mr. Prince was followed, but he was 2 doing something wrong. 3 Nobody's saying he is a bad guy. Nobody's 4 saying, you know, he is a horrible person. All 5 we're saying is that he, during the time frame 6 alleged and during the time frame you heard 7 testimony to, he possessed marijuana. That's 8 all I'm asking you to say, and I'm asking you 9 to, yeah, hold him accountable, hold him 10 responsible and convict him for misdemeanor 11 possession of marijuana. Thank you. 12 THE COURT: Thank you, Miss Wardell. 13 Ladies and gentlemen of the jury, I thank 14 you for your attention during this trial. 15 Please pay attention to the instructions that I 16 am about to give you. 17 Jesse Prince, Jr., the defendant in this 18 case, has been accused of the crime of 19 possession of marijuana. Certain drugs and 20 chemical substances are known by law as 21 "controlled substances." Marijuana is a 22 controlled substance. 23 Before you can find the defendant guilty of 24 possession of marijuana, the State most prove 25 the following three elements beyond a reasonable KANABAY COURT REPORTERS 662 1 doubt: 2 1. Jesse Prince, Jr., possessed a certain 3 substance. 4 2. That substance was marijuana. 5 3. Jesse Prince, Jr., had knowledge of the 6 presence of the substance. 7 To "possess" means to have personal charge 8 of or exercise the right of ownership, 9 management or control over the thing possessed. 10 Possession maybe actual or constructive. 11 Actual possession means the thing is in the hand 12 of or on the person of -- on the person, or the 13 thing is in a container in the hand of or on the 14 person, or the thing is so close as to be within 15 ready reach and is under the control of the 16 person. Mere proximity to a thing is not 17 sufficient to establish control over that thing 18 when the thing is not in a place over which the 19 person has control. 20 Constructive possession means the thing is 21 in a place over which the person has control or 22 in which the person has concealed it. If a 23 thing is in a place over which the person does 24 not have control, in order to establish 25 constructive possession the State most prove the KANABAY COURT REPORTERS 663 1 person's: 2 1. control over the thing, 3 2. knowledge that the thing was within the 4 person's presence, and, 5 3. knowledge of its illicit nature -- of 6 the illicit nature of the thing. 7 Possession maybe joint, that is, two or 8 more persons may jointly have possession of an 9 article, exercising control over it. In that 10 case, each of those persons is considered to be 11 in possession of that article. 12 If a person has exclusive possession of a 13 thing, knowledge of its presence may be inferred 14 or assumed. 15 If a person does not have exclusive 16 possession of a thing, knowledge of its presence 17 may not be inferred or assumed. 18 The defendant in this case has entered a 19 plea of not guilty. This means you must presume 20 or believe the defendant is innocent. This 21 presumption stays with the defendant as to each 22 material allegation in the information through 23 each stage of trial unless it has been overcome 24 by the evidence to the exclusion of and beyond a 25 reasonable doubt. KANABAY COURT REPORTERS 664 1 To overcome the defendant's presumption of 2 innocence the State has the burden of proving 3 the follow: The crime with which the defendant 4 is charged was committed, and the defendant is 5 the person who committed the crime. 6 The defendant is not required to present 7 evidence or prove anything. 8 Whenever the words "reasonable doubt" are 9 used you must consider the following: A 10 reasonable doubt is not a mere possible doubt, a 11 speculative, imaginary or forced doubt. Such a 12 doubt must not influence you to return a verdict 13 of not guilty if you have an abiding conviction 14 of guilt. On the other hand, if, after 15 carefully, considering, comparing and weighing 16 all the evidence, there is not an abiding 17 conviction of guilt, or, if having a conviction, 18 it is one which is not stable but one which 19 wavers and vacillates, then the charge is not 20 proved beyond every reasonable doubt and you 21 must find the defendant not guilty because doubt 22 is reasonable. 23 It is to the evidence introduced in 24 this trial, and to it alone, that you are to 25 look for that proof. KANABAY COURT REPORTERS 665 1 A reasonable doubt as to the guilt of the 2 defendant may arise from the evidence, conflict 3 in the evidence or the lack of evidence. 4 If you have a reasonable doubt, you should 5 find the defendant not guilty. If you have no 6 reasonable doubt you should find the defendant 7 guilty. 8 It is up to you to decide what evidence is 9 reliable. You should use your common sense in 10 deciding which is the best evidence, and which 11 evidence should not be relied upon in 12 considering your verdict. You may find some of 13 the evidence not reliable or less reliable than 14 other evidence. 15 You should consider how witnesses acted, as 16 well as what they said. Some things you should 17 consider are: 18 Did the witness seem to have an opportunity 19 to see and know the things about which the 20 witness testified? 21 Did the witness seem to have an accurate 22 memory? 23 Was the witness honest and straightforward 24 in answering the attorneys' questions? 25 Did the witness have some interest in how KANABAY COURT REPORTERS 666 1 the case should be decided? 2 Does the witness' testimony agree with 3 other testimony and other evidence in the case? 4 Has the witness been offered or received 5 any money, preferred treatment or other benefit 6 in order to get the witness to testify? 7 Had any pressure or threat been used 8 against the witness that affected the truth of 9 the witness' testimony? 10 Did the witness at some other time make a 11 statement that is inconsistent with the 12 testimony he or she gave in court? 13 You may rely upon your own conclusion about 14 the witness. A juror may believe or disbelieve 15 all or any part of the evidence or the testimony 16 of any witness. 17 The constitution requires the State to 18 prove its accusation against the defendant. It 19 is not necessary for defendant to disprove 20 anything. Nor is the defendant required to 21 prove his innocence. It is up to the State to 22 prove the defendant's guilt by evidence. 23 The defendant exercised a fundamental right 24 by choosing not to be a witness in this case. 25 You must not view this as an admission of guilt KANABAY COURT REPORTERS 667 1 or be influenced in any way by his decision. No 2 juror should ever be concerned that the 3 defendant did not -- did or did not take the 4 witness stand and give testimony in the case. 5 These are some of the general rules that 6 apply to your discussion. You must follow these 7 rules in order to return a lawful verdict: 8 You must follow the law as set out in these 9 instructions. If you fail to follow the law, 10 your verdict will be a miscarriage of justice. 11 There is no reason for failing to follow the 12 law. All of us are depending upon you to make a 13 wise and legal decision in this matter. 14 This case must be decided only upon the 15 evidence that you have heard from the testimony 16 of the witnesses and have seen in the form of 17 exhibits -- of the exhibits in evidence and 18 these instructions. 19 This case must not be decided for or 20 against anybody because you feel sorry for 21 anyone or are angry at anyone. 22 Remember, the lawyers are not on trial, and 23 your feelings about them should not influence 24 your decision in this case. 25 Your duty is to determine if the defendant KANABAY COURT REPORTERS 668 1 has been proven guilty or not, in accord with 2 the law. It is the judge's job to determine a 3 proper sentence if the defendant is guilty. 4 Whatever verdict you render must be 5 unanimous, that is, each juror must agree to the 6 same verdict. 7 It is entirely proper for a lawyer to talk 8 to a witness about what testimony the witness 9 would give if called to the courtroom. The 10 witness should not be discredited by talking to 11 a lawyer about his or her testimony. 12 Your verdict should not be influenced by 13 feelings of prejudice, bias or sympathy. Your 14 verdict must be based on the evidence, and on 15 the law contained in these instructions. 16 Deciding a verdict is exclusively your job. 17 I cannot participate in that decision in any 18 way. Please disregard anything that I may have 19 said or done that made you think I preferred one 20 verdict over another. 21 Only one verdict may be returned as to the 22 crime charged. The verdict must be unanimous, 23 that is, all of you must agree to the same 24 verdict. The verdict must be in writing and for 25 your convenience the proper form has been KANABAY COURT REPORTERS 669 1 prepared for you. The verdict form reads as 2 follows: 3 State of Florida v. Jesse Prince, Jr. The 4 charge is possession of marijuana. 5 We, the jury, find as follows as to the 6 defendant in this case: 7 There are some parenthesis, and within the 8 parenthesis it reads "check only one." Below 9 that there are two boxes and sentences that are 10 next to each box. 11 Box A reads: The defendant is guilty of 12 possession of marijuana as charged. 13 Box B reads: The defendant is not guilty. 14 Below that it says, "so say we all." Below 15 that then there is a line and below that line 16 the words "foreperson of the jury" is written. 17 The foreperson should sign that line. 18 Below that line -- below that foreperson of the 19 jury then there's another line, and below that 20 line it says "print the name of the foreperson." 21 That is self-explanatory, please print your 22 name. And then after that the date, and the 23 foreperson should date the verdict form. 24 In just a few moments you will be taken to 25 the jury room by the court bailiff. The first KANABAY COURT REPORTERS 670 1 thing you should do is elect a foreperson. The 2 foreperson presides over your deliberations, 3 like a chairperson of a meeting. It is the 4 foreperson's job to sign and date the verdict 5 form when all of you have agreed on a verdict in 6 this case. The foreperson will bring the 7 verdict back to the courtroom when you return. 8 Your verdict finding the defendant either 9 guilty or not guilty must be unanimous. The 10 verdict must be the verdict of each juror as 11 well, as the jury as a whole. 12 In closing, let me remind you that it is 13 important that you follow the law spelled out in 14 these instructions in deciding your verdict. 15 There are no other laws that apply to this case. 16 Even if you do no like the laws that must be 17 applied, you must use them. For two centuries 18 we have agreed to a constitution and to live by 19 the law. No one of us has the right to violate 20 the rules that we all share. 21 Counsel approach, please. 22 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 23 THE COURT: Counsel for the Defense, 24 did I read all the instructions I said that 25 I would read? KANABAY COURT REPORTERS 671 1 MR. DEVLAMING: You did. 2 THE COURT: State? 3 MS. WARDELL: Yes, sir. 4 THE COURT: Okay. Thank you very much. 5 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 6 Ladies and gentlemen, at this time I'm 7 going to ask that the bailiff take the jury out. 8 I shall ask Mr. Wilson to remain seated, and I'm 9 going to send a copy of the jury instructions 10 back with you so if you have some questions 11 about those instructions you can refer to those. 12 Please take the jury out. 13 (OUTSIDE THE PRESENCE OF THE JURY) 14 THE COURT: Mr. Wilson, if you hadn't 15 figured it out, you're the alternate. You 16 figured it out? 17 JUROR WILSON: Yep. 18 THE COURT: Okay. Well, we gave you 19 the bad chair. That's the reason why. It's 20 not the comfortable one. I appreciate your 21 willingness to participate in the process. 22 We took two days out of your life, and on 23 behalf of the State and Defense and the 24 people of the Sixth Circuit, the judges and 25 all of us who are involved, we do thank you, KANABAY COURT REPORTERS 672 1 sir. 2 At this time your jury service is done, and 3 you have the right to keep to yourself what your 4 thoughts are relating particularly to this case. 5 At the same time, if you wish, from this moment 6 forward you get to share those with whomever you 7 wish to. Again, you don't have to say anything, 8 but you can. 9 Again, on behalf of the State and the 10 Defense we do have a parting gift for you, but 11 your service is done and you are allowed at this 12 time to leave. Thank you, sir. 13 JUROR WILSON: Thank you. 14 THE COURT: All right. At this time if 15 there's nothing else, we shall recess and 16 await the jury's verdict. There being 17 nothing, then I'm leaving. 18 (RECESS WAS HAD) 19 (OUTSIDE THE PRESENCE OF THE JURY) 20 THE COURT: There are two questions. 21 The first question is: Did Mr. Prince ever 22 point out the marijuana plant to 23 Officer Mitch from Mitch's testimony? 24 I assume they mean they want me to try and 25 isolate in Officer Mitch's testimony a point KANABAY COURT REPORTERS 673 1 where he specifically states that the defendant 2 pointed out the plants. I'm not so sure I heard 3 that, but even if I did, I'm inclined to isolate 4 any testimony and read just that portion as 5 opposed to reading the entire testimony again. 6 Now, what do you all want me to do? 7 MR. DEVLAMING: Judge, I think that 8 what is usually done is you tell them to 9 rely on their own collective recollection, 10 and that's what I would be requesting in 11 this case. 12 THE COURT: State, what about you? 13 MS. WARDELL: Are they asking for the 14 testimony? Because I recall Officer -- 15 Detective Crosby testifying that on the 16 second incident when he went out to see 17 Deneen watering the plants that Jesse 18 actually bent and pulled one over and said, 19 all it needs is sun and water. And if 20 that's in the testimony obviously that's 21 favorable to the State. Did they ask, point 22 blank, in their question may we have the 23 testimony read, or did they just say -- 24 THE COURT: Well here's -- this is what 25 the question says: Did Mr. Prince ever KANABAY COURT REPORTERS 674 1 point out the marijuana plant to 2 Officer Mitch from Officer Mitch's 3 testimony? 4 MS. WARDELL: Well, I believe it's in 5 there, and if you don't want to isolate it 6 then perhaps you could read the whole thing 7 or you could choose to tell them to rely on 8 their collective memory. 9 THE COURT: What are you asking for? 10 MS. WARDELL: I think Officer -- 11 Detective Crosby's testimony would be 12 helpful. 13 THE COURT: The next question is, What 14 is joint possession and what exercise 15 control over this joint possession? And 16 this is sort of a third question but related 17 to the second one, Does exercise control 18 mean I take control and tomorrow you take 19 control, et cetera? 20 MR. DEVLAMING: Judge, I think it's 21 pretty clear when they ask legal questions 22 like that about the only thing you can do 23 then is either give them or read them the -- 24 THE COURT: -- the instruction. 25 MR. DEVLAMING: -- the jury KANABAY COURT REPORTERS 675 1 instruction. 2 THE COURT: Reread the instruction. 3 That's the only thing I can do. 4 MS. WARDELL: I thought you did give 5 them a copy. 6 THE COURT: I did. 7 MR. DEVLAMING: Oh, you did? They have 8 it? 9 THE COURT: Yeah, they got it. 10 MR. DEVLAMING: Then I think you just 11 have to tell them that the instructions they 12 have are the only laws that can be given to 13 them. 14 THE COURT: I have no intention of 15 trying to define this anymore than what the 16 instruction does. Nor do I think I have any 17 authority to do so. 18 Now the real question is whether or not -- 19 what we do as it relates particularly to 20 Mr. Crosby's testimony. So on the second one, I 21 specifically will tell them the legal 22 definitions that they are seeking are contained 23 within the instruction, and that they should 24 rely on those definitions. As it relates to 25 whether or not Mr. Prince ever pointed out the KANABAY COURT REPORTERS 676 1 marijuana plant to officer Mitch's -- to 2 Officer Mitch from Officer Mitch's testimony -- 3 MR. DEVLAMING: Judge, they have not 4 indicated they have deadlocked. I think I 5 would start out trying to tell them to rely 6 on their own collective recollection, and if 7 it becomes a problem with the second 8 question, well, we'll address it. 9 THE COURT: How long was that guy on 10 the stand? 11 MS. WARDELL: That's what I was going 12 to ask. Sometimes the Court notes how long 13 the witness testifies. It was not very long 14 and the cross was not very long. 15 THE COURT: On officer Mitch? On 16 Officer Crosby? 17 MS. WARDELL: Yeah. I don't think so. 18 If your recall -- 19 MR. DEVLAMING: He's the main witness. 20 MS. WARDELL: Yeah. But I started the 21 State's case and I was rested in less than 22 an hour and a half. I called three 23 witnesses. 24 THE COURT: Jennifer? 25 THE COURT REPORTER: Yes. KANABAY COURT REPORTERS 677 1 THE COURT: I know you all hate it. 2 I'm going to have her read back 3 Officer Crosby's testimony. Bring the jury 4 in. 5 THE COURT REPORTER: Can you give me a 6 few minutes? 7 THE COURT: How much time? 8 THE COURT REPORTER: Then minutes. 9 THE COURT: All right. Ten minutes it 10 is. See you all in ten. 11 (A RECESS WAS HAD) 12 THE COURT: They got more questions. 13 We'll just wait until they write them. 14 MR. DEVLAMING: Judge, Bailiff, I 15 wanted to address the judge before we did 16 that. Judge do you want to give the jury an 17 option of either, a, relying on their memory 18 or tell them we are prepared to read, 19 however, they will only get the entire -- 20 THE COURT: That was my intent. 21 MR. DEVLAMING: Oh, that was your 22 intent? 23 THE COURT: I intend to do exactly 24 that. 25 MR. DEVLAMING: Okay. KANABAY COURT REPORTERS 678 1 THE COURT: I was going to tell them, 2 listen, we can -- here's your question. I 3 cannot read a certain portion of the 4 testimony, and I am prepared at this time to 5 have the court reporter read the entire 6 testimony to you if you all feel that would 7 be beneficial. That's what I intended to 8 say -- of the officer, not the whole -- 9 MR. DEVLAMING: Right. Oh, of course. 10 Or they could rely on their collective 11 recollections? I mean, are you going to 12 tell them -- because they -- 13 THE COURT: I wasn't going to say that. 14 I was just going to say those two things, 15 that I can't do it, or I can do it but all 16 of it. 17 MR. DEVLAMING: Okay. Okay. Sorry. 18 THE COURT: All right. 19 MS. WARDELL: Judge, are we going to 20 handle that question before they write more, 21 or are you going to wait? 22 THE COURT: No. We're going to let 23 them write more and then we're going to 24 handle them all. 25 (IN THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 679 1 THE COURT: All right. Why are the 2 State Exhibits numbered 3, 4, 5 and 6, which 3 are pictures taken by the officer, dated 4 1998-2 -- I guess then they put 2/1 and a 5 question mark as opposed to where is 1 and 6 2. Let me read it again. Why are the State 7 Exhibits numbered 3, 4, 5 and 6, which are 8 pictures taken by the officer, dated '98 9 2/1. Maybe the pictures have '98 2/1 on 10 them? 11 MR. DEVLAMING: I know the answer. 12 First of all, those numbers you began to 13 read are the exhibit numbers. 14 THE COURT: Right. 15 MR. DEVLAMING: They're all 16 photographs. They have an imprint probably 17 -- 18 THE COURT: Of the development date? 19 MR. DEVLAMING: No. 20 THE COURT: No? 21 MR. DEVLAMING: You know how these 22 cameras are where you can change the date so 23 that it goes on to the camera? You know on 24 the picture? 25 THE COURT: It's a date stamp. I can't KANABAY COURT REPORTERS 680 1 answer that. 2 MR. DEVLAMING: It's set improperly. I 3 mean, you can't answer the question. You 4 can't give testimony. 5 MS. WARDELL: In other words on the 6 back of the picture -- 7 THE COURT: I know exactly what they're 8 talking about, I just -- I can't answer that 9 question. We all agree that this is a 10 question that we cannot answer. It didn't 11 come into evidence. It is something outside 12 the province of this trial. They are not to 13 consider it. I already told them they 14 weren't to consider it, but they're 15 considering it. So I'll tell them that 16 question I cannot answer. 17 I shall give them the option -- I may even 18 tell them -- I'm contemplating, or you can just 19 rely on your own memory. In fact, I think I 20 will say that as it relates to the first 21 question, and then I'll tell them the last one, 22 read the instructions I gave you or bring them 23 back and I'll read them for you. 24 MS. WARDELL: Wait. You changed your 25 mind on the whole transcript thing? KANABAY COURT REPORTERS 681 1 THE COURT: I didn't change my mind. 2 What I said is I will tell them, Listen, we 3 can -- we can -- I can't read a portion of 4 it. I can read it all or you all can just 5 rely on you own memory. That's what I am 6 going to say. And then the second one I'm 7 going to say read the instructions I gave 8 you, and on the last one I'll say we can't 9 answer that question, and that's it. Please 10 bring them in. 11 (IN THE PRESENCE OF THE JURY) 12 THE BAILIFF: The jury is in the 13 courtroom and seated. 14 THE COURT: We have three questions. 15 The first one is: Did Mr. Prince ever point 16 out the marijuana plant to Officer Mitch 17 from Officer Mitch's testimony? 18 From that question itself I glean you want 19 that portion of the testimony; however, I cannot 20 read just a portion of the testimony. I would 21 have to read the entire testimony, have it all 22 read back to you, to make sure that we don't 23 highlight any particular portion of the 24 testimony, or you can choose to rely on your own 25 memory. KANABAY COURT REPORTERS 682 1 If you want me to have the entire testimony 2 of Officer -- it's actually Officer Crosby, but 3 I make the assumption that you're speaking of -- 4 well, let me ask you. It says Officer Mitch. 5 Is it fair -- who's the foreperson. 6 THE JURY: It's Officer Crosby. 7 THE COURT: All right. So 8 Officer Crosby's testimony. All right. 9 Then here's your second question. Well, 10 actually let me get -- you all need to 11 figure out, and maybe you can huddle 12 together right now, whoever the foreperson 13 is, whether or not you want it all read back 14 or whether you want to rely on your own 15 memories. 16 FOREPERSON: We already tried the 17 memory -- the memory. 18 THE COURT: Okay. All read back. Then 19 the next one is: What is joint possession 20 and what is exercising control over this 21 joint possession? Does exercising control 22 mean I take control and tomorrow you take 23 control, et cetera? 24 All of the instructions on the law and all 25 of the definitions that relate particularly to KANABAY COURT REPORTERS 683 1 those instructions are contained in the packet I 2 gave you. You do have it. You did get it, 3 right? 4 FOREPERSON: Yes. 5 THE COURT: Okay. Now here's the next 6 thing, you're going to have to read that and 7 within the confines of that come up with 8 that answer. 9 And here's your last question: Why are the 10 State Exhibits numbered 3, 4, 5 and 6, which are 11 pictures taken by the officer, dated 9 2/1? 12 FOREPERSON: That's '98. 13 THE COURT: Sorry. '98 2/1. Okay. 14 The only thing that I can tell you is I 15 can't answer that question. The only 16 evidence you can consider are things that 17 have come into evidence. Do you understand? 18 FOREPERSON: Yes. 19 THE COURT: Okay. Now, are you 20 prepared -- 21 THE CLERK: Jennifer. 22 THE COURT: I know her name. I was 23 getting ready to say Madam Court reporter -- 24 to do that? 25 THE COURT REPORTER: Sure, Judge. KANABAY COURT REPORTERS 684 1 THE COURT: Please proceed. 2 (WHEREUPON THE COURT REPORTER READ BACK TESTIMONY OF 3 OFFICER CROSBY FROM HER STENOGRAPHIC NOTES) 4 THE COURT: You have a question? Can 5 you all approach for one moment, please? 6 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 7 THE COURT: I think to perfect the 8 record the question obviously needs to be 9 reported. Do you all want them to write it 10 now or can we just let them -- apparently 11 they have a question. Should we just let 12 them ask it and place it on the record, and 13 at that point in time we reconvene and we'll 14 figure out whether or not we can answer it? 15 MS. WARDELL: Yeah. I have a feeling 16 he is going say stop. 17 MR. DEVLAMING: Well, he said he had a 18 question. 19 MS. WARDELL: Okay. That's fine. I 20 don't care. We can put it on the record. 21 THE COURT: All right. Do you have any 22 problem with that? 23 MR. DEVLAMING: No. 24 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 25 THE COURT: All right. You all have a KANABAY COURT REPORTERS 685 1 question, Mr. Wonger or Swonger or whatever 2 it is, that you're about to ask me 3 collectively? 4 FOREPERSON: Yes, I do. 5 THE COURT: What is the question? 6 FOREPERSON: The question is I believe 7 we've heard what we wanted to hear. Does 8 she have to go on and read the rest of it? 9 THE COURT: Please approach. 10 (WHEREUPON THE FOLLOWING BENCH CONFERENCE WAS HAD) 11 THE COURT: I think I already told them 12 the answer to that question is yes. 13 MR. DEVLAMING: Yep. 14 THE COURT: I don't see anyway around 15 it. Thank you. 16 (WHEREUPON THE BENCH CONFERENCE CONCLUDED) 17 THE COURT: Yes, she has to read it 18 all. 19 FOREPERSON: Okay. 20 THE COURT: All right. Thank you. 21 (THE COURT REPORTER CONTINUED TO READ THE TESTIMONY 22 OF OFFICER CROSBY) 23 (A JUROR LEFT THE COURTROOM FOR A SHORT RECESS) 24 (THE COURT REPORTER CONTINUED TO READ THE TESTIMONY 25 OF OFFICER CROSBY UNTIL COMPLETED) KANABAY COURT REPORTERS 686 1 THE COURT: That's it. Please take the 2 jury out. 3 (OUTSIDE THE PRESENCE OF THE JURY) 4 THE COURT: We stand in recess. 5 (A RECESS WAS HAD) 6 THE COURT: What do you all want to do? 7 They're -- let me tell you that I just -- 8 one of the bailiffs -- the bailiff just told 9 me one of them apparently just came to the 10 door and says she can't stand it in there 11 anymore. So the next question is, What now? 12 Do we want to bring them in, offer them 13 something to eat, Allen charge them if they 14 tell us or suggest to us that can go no 15 longer, bring them back in the morning 16 maybe? 17 MR. DEVLAMING: Well, my -- I think 18 Miss Wardell and I are of the same feeling 19 that I don't want to send them home unless 20 we have to. 21 THE COURT: All right. So we'll Allen 22 charge them. 23 MR. DEVLAMING: No, no. 24 THE COURT: Well, actually nobody's 25 actually told me at this point in time that KANABAY COURT REPORTERS 687 1 they can't reach a verdict, so I don't think 2 we can Allen charge them. But I do need to 3 see where they are because it's time for me 4 to order something for them to eat if they 5 are not close. 6 MR. DEVLAMING: That's what I would 7 suggest. You want to by note? 8 MS. WARDELL: Well, I was going to say, 9 do we have to bring them in, because that 10 would just take more time. Can't the 11 bailiff just knock on the door and say do 12 you all need something, here's a menu if 13 they do? 14 THE COURT: No. Because the woman said 15 I cannot stay in this room any longer. She 16 has got the be let out. Something's got to 17 happen. 18 MR. DEVLAMING: Okay. All right. 19 THE COURT: So bring them in the 20 courtroom and let me see where they are. 21 She said -- I think she said, "I have thrown 22 up twice," or something like that. 23 MS. WARDELL: Maybe that's why -- 24 (IN THE PRESENCE OF THE JURY) 25 THE BAILIFF: Your Honor, the jury's in KANABAY COURT REPORTERS 688 1 the courtroom and seated. 2 THE COURT: I was told by one of the 3 bailiffs someone is ill and needed to leave 4 the room. I was going to call you all out 5 anyway to find out if you would like at this 6 point in time for me to order dinner for 7 you. I can indicate to you that it will 8 take about an hour for it to get here. 9 If you all needed to take -- if you all 10 need to take a break, you know, ten minutes or 11 fifteen minutes or so, maybe go outside, get 12 some fresh air, something of that nature, we can 13 surely arrange for that for you, and at the same 14 time you all can give your orders to the 15 bailiff, and we could attempt to get some food 16 for you. 17 JUROR NO. 1: 18 UNIDENTIFIED JUROR: I think don't 19 think it's a food thing. I think it's just 20 taking a break. 21 THE COURT: You need to take a break? 22 UNIDENTIFIED JUROR: I don't think I 23 could keep anything down right now. 24 THE COURT: Okay. So is it fair to say 25 that you all do not wish for me to order KANABAY COURT REPORTERS 689 1 anything for you at this time? 2 UNIDENTIFIED JUROR: Are you buying? 3 THE COURT: We are buying, but it's 4 going to take you about an hour to get it. 5 But we are buying. 6 UNIDENTIFIED JUROR: Filet mignon, 7 medium well. 8 THE COURT: Well, we didn't indicate 9 what we were ordering. You didn't know that 10 McDonald's was on the menu. 11 UNIDENTIFIED JUROR: Just trying to 12 break up a little humour here. 13 THE COURT: Okay. So there may be a 14 little recess for you. How much time do you 15 think -- 16 UNIDENTIFIED JUROR: Probably ten or 17 fifteen minutes would do us all good. 18 UNIDENTIFIED JUROR: We just need to 19 get out of that room. 20 THE COURT: Why don't we make it 21 twenty. Okay? You all take a twenty-minute 22 break. Now -- 23 MS. WARDELL: Judge? 24 THE COURT: Hold on. 25 MS. WARDELL: May we approach? KANABAY COURT REPORTERS 690 1 THE COURT: Do you need to approach? 2 MS. WARDELL: Yes. 3 THE COURT: Come on up. We don't need 4 the court reporter. 5 (A DISCUSSION WAS HAD OFF THE RECORD) 6 MS. WARDELL: All right. Here's the 7 deal. You don't have to keep them all 8 together. If you're going to keep them all 9 together -- well, here's the thing. While 10 you're separated you cannot individually and 11 amongst yourselves, for instance you and you 12 and you and you, discuss this case. Okay? 13 You got to be together when you're talking 14 about it. All right? Okay. Thank you. 15 Please give them a break. 16 (OUTSIDE THE PRESENCE OF THE JURY) 17 THE BAILIFF: The jury's out of the 18 hearing of the court, your Honor. 19 THE COURT: All right. We stand in 20 recess again. 21 MS. WARDELL: Judge would it be fair to 22 say that at least for that twenty-minute 23 period that the attorneys could leave the 24 building? 25 THE COURT: No. Because they may no -- KANABAY COURT REPORTERS 691 1 of course, go ahead and leave the building. 2 MS. WARDELL: You know what I'm saying? 3 THE COURT: You can leave the building. 4 That's was fine with me. I won't take the 5 verdict for twenty minutes or so. But if 6 you're buying, you know, just bring us all 7 back something. You want to put in your 8 order, Mr. DeVlaming? 9 (A RECESS WAS HAD) 10 THE COURT: Someone, I can't tell you 11 which juror, but one of the juror has 12 alerted the bailiff that they are 13 deadlocked. Shall I Allen charge them, or 14 should we call it even and do it again 15 another day? 16 MS. WARDELL: The State would request 17 at least one shot at an Allen charge. Did 18 they take the entire twenty-minute break? 19 THE COURT: They took the twenty. It 20 took them five minutes after the twenty to 21 say we're done. 22 MS. WARDELL: Okay. 23 THE COURT: All right. I'll read the 24 Allen charge. Bring them in. 25 (IN THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 692 1 THE BAILIFF: The jury's in the jury 2 box and seated, your Honor. 3 THE COURT: Mr. Swonger, I've been 4 advised, sir, that you all have indicated 5 you cannot reach a verdict. Is that 6 accurate? The jury is deadlocked? 7 FOREPERSON: Yes, sir. 8 THE COURT: I'm going to read to you an 9 instruction and I'd like you to listen to 10 the instruction, and then we'll try to go 11 from there. 12 I know that all of you have worked hard to 13 try and find a verdict in this case. It's 14 apparently been impossible for you to -- 15 impossible for you so far. Sometimes an early 16 vote before discussion can make it hard to reach 17 an agreement about the case later. The vote, 18 not the discussion, might make it hard to see 19 all sides of the case. 20 We are all aware that it is legally 21 permissible for a jury to disagree. There are 22 two things a jury can lawfully do: Agree on a 23 verdict or disagree on what the facts of the 24 case may truly be. 25 There is nothing to disagree about on the KANABAY COURT REPORTERS 693 1 law. The law is as I told you. If you have any 2 disagreements about the law, I should clear them 3 for you now. That should be my problem, not 4 yours. 5 If you disagree on what you believe the 6 evidence showed, then only you can resolve that 7 conflict, if it is to be resolved. 8 I have only one question of you. By law, I 9 cannot demand this of you, but I want you to go 10 back into the jury room. Then, taking turns, 11 tell each of the other jurors about any weakness 12 of your own position. You should not interrupt 13 each other or comment on each other's views 14 until each of you has had a chance to talk. 15 After you have done that, if you simply cannot 16 reach a verdict, then return to the courtroom 17 and I will declare this case mistried, and we'll 18 discharge you with my sincere appreciation for 19 your services. 20 You may now retire to continue with your 21 deliberations. 22 FOREPERSON: We're ready. 23 THE COURT: Please retire to continue 24 with your deliberations. 25 (OUTSIDE THE PRESENCE OF THE JURY) KANABAY COURT REPORTERS 694 1 THE COURT: Okay. We recess again. 2 (A RECESS WAS HAD) 3 THE COURT: All right. The jury's 4 indicated again that they are deadlocked. 5 I'm going to mistry it. Shall we pick a new 6 trial date? 7 MR. DEVLAMING: Yes. 8 THE COURT: July 2 and 3 are available. 9 Of course we don't to do the 3rd so I would 10 have to say the 2nd, which is a Monday, or 11 the very next week in July. 12 MR. DEVLAMING: Judge, I think for me 13 it's going to have to be the next because I 14 have a trial that first week in July. 15 THE COURT: How is July 10? Actually, 16 hold on. On the 11th I will not be here, so 17 I can't do the 10th. It's got to be the 18 third week. I can start it Monday the 16th. 19 MR. DEVLAMING: That's fine with me. 20 MS. WARDELL: Judge, right now I have a 21 murder set. I'm going to find out Friday 22 whether or not it's going to be continued. 23 THE COURT: It's set around the 16th of 24 July? 25 MS. WARDELL: Right. KANABAY COURT REPORTERS 695 1 THE COURT: On that day? 2 MS. WARDELL: Yes. 3 THE COURT: All right. So then we 4 should not set this -- 5 MS. WARDELL: Well, I thought it was 6 the 18th, but the 16th is a Monday? 7 THE COURT: The 16th is a Monday. The 8 18th would be a Wednesday. 9 MS. WARDELL: Well, I know it's a 10 Monday, so it must be the 16th. It's with 11 Judge Downey. That's -- they let me know 12 last night that the defendant filed a motion 13 to continue. 14 THE COURT: I can start it on July 23. 15 MS. WARDELL: Well, if you want -- I 16 would just ask that you pencil in the 16th 17 with the understanding that I'll know Friday 18 one way or the other if I'm available. 19 MR. DEVLAMING: Judge, I can do it 20 either day the Court chooses. 21 THE COURT: Shall I just set it for a 22 status check, and you come in and tell me -- 23 MS. WARDELL: I will come in Tuesday 24 and let you know if it got continued. 25 THE COURT: I'll do a pretrial if you KANABAY COURT REPORTERS 696 1 prefer to actually be present for it. 2 MR. DEVLAMING: Judge, if you or Lydia 3 were to call me, I'll put it in. 4 THE COURT: Status check this case for 5 Tuesday, Tuesday coming, and please bring 6 the jury back. Tuesday, I guess that's the 7 29th, and we'll pick the actual trial date 8 on that day, and it will be -- you said -- I 9 said the 23rd or the 18th? 10 MS. WARDELL: You said the 16th or the 11 23rd. 12 THE COURT: Thank you. The 16th or the 13 23rd. So one of those two days it will set 14 on. 15 THE BAILIFF: Your Honor, you did say 16 do not -- 17 THE COURT: Bring them back. 18 THE BAILIFF: I'm sorry, I 19 misunderstood you. 20 THE COURT: Okay. Bring them back. 21 (IN THE PRESENCE OF THE JURY) 22 THE COURT: Mr. Swonger, the bailiff 23 has advised me you all have still not been 24 able to reach a verdict; is that accurate, 25 sir? KANABAY COURT REPORTERS 697 1 JUROR SWONGER: Yes, your Honor. 2 THE COURT: At this time I declare this 3 case to be mistried. 4 On the behalf the State and the Defense in 5 this case and the people of the Sixth Circuit, 6 all the judges and all of us who are involved, 7 we appreciate your willingness to participate. 8 You've been here a long time. I know you worked 9 hard. And I at this time release you from your 10 service with the thanks of this court. You all 11 have a good day. 12 THE BAILIFF: Right this way. 13 (THE JURY EXITS) 14 THE COURT: All right, you all, I think 15 we stand adjourned. 16 17 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 18 PROCEEDINGS CONCLUDED 19 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 20 21 22 23 24 25 KANABAY COURT REPORTERS 698 1 REPORTER'S CERTIFICATE 2 3 STATE OF FLORIDA ) 4 COUNTY OF PINELLAS ) 5 6 I, Jennifer Fleischer, RPR, certify 7 that I was authorized to and did 8 stenographically report the foregoing 9 proceedings and that the transcript is a true 10 and complete record of my stenographic notes. 11 DATED this 1st day of June, 2001. 12 13 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴 14 JENNIFER FLEISCHER, RPR 15 16 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS