Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL II (FIRM STATE BARNo. 14000)

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AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL

4 II W. WASHINGTON PHOENIX, ARIZONA 85007-2997 5 TELEPHONE: (602) 542-4686
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CRIMINAL ApPEALS SECTION 1275

(STATE BAR NUMBER 022246)

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ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner, -vs DORAB. SCHRIRO, et aI.,

CIV 04-573-PHX-FJM (MS)

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Respondents.

EXHIBIT I, PART 1, PGS. 1-39 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, Plaintiff,
vs.
WILLIAM FLOYD SMITH,

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MARICOPA COUNTY SUPERIOR COURT NO. CR 94-92467 COURT OF APPEALS NO.1 CA-CR 96-0231

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Defendant.

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

Mesa, Arizona October 3, 1995

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BEFORE:

THE HONORABLE LOUIS A. ARANETA

PREPARED BY: SALLY STEARMAN, Court Reporter

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APPEARANCES:
FOR THE PLAINTIFF STATE Of ARIZONA: MARICOPA COUNTY ATTORNEY'S OFFICE MS. ANNE BOWEN

FOR THE DEFENDANT WILLIAM FLOYD SMITH: MR. GREGG H. GRIFFITH

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8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:

PRO C E E D 1. N G S

The record will show the

presence of both counsel, the Defendant Mr. smith, the court reporter and court staff. present. The Jury is not

The time is five after 1:00 and I asked

counsel to be here to argue the pending evidentiary
motions that have been put forward.
All right.

Just a housekeeping matter

real quick before I forget, Mr. Griffith, what is the status of the Isaacsons as witnesses prior to Thursday? MR. GRIFFITH: to Thursday. ruling is. It doesn't look good prior

We are going to have to find out what your It may be, depending on your ruling, may be

we won't be presenting any character evidence at all.
THE COURT:

Okay.

Fair enough.

Let's

proceed with the evidentiary issues. MR. GRIFFITH: prepared written responses. Your HonQr, I have, I have I see that the court staff

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didn't find them.

Here they are. Did you just provide those

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THE COURT: right now?

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MR. GRIFFITH:
THE COURT:

Yes.

Just a minute, please. Just one more minute, please. You've reviewed or read

All right.
All right.

Mr. Griffith's response, Ms. Bowen? MS. BOWEN: THE COURT: motions. That's correct, Your Honor. You're the proponent on the

Why don't we deal with the State's Notice of

Intent to Impeach Character Evidence witnesses who have been identified as the Isaacsons. with that first? Anything that you wish to add to your written motion, or written notice of intent? MS. BOWEN: Your Honor, I believe, despite Why don't we deal

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some of the other categories they may fit into, the ones Mr. Griffith has objected to, it still goes to that witness' ability to evaluate the Defendant and the basis on which they evaluate the Defendant. If they have an

incomplete knowledge of him and his activities, obviously their opinion would have less credibility and
less weight.

The exploration of the degree to which

they know the Defendant is relevant to their opinion.

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If they are going to be offering their opinion, I feel the state should be able to explore where that opinion
is based. THE COURT:

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I have a question about item

number 1, as a form of impeachment, that on January 12, 1984 there was a plea of no contest to indecency with a child by the Defendant Mr. smith. Had you ever provided

Defendant with notice of that prior conviction?
MS. BOWEN:

Oh, yes, he has that.
Your Honor, that issue was

MR. GRIFFITH:

thoroughly litigated in front of Judge Jarrett.
THE COURT:

Was it litigated under the 609

basis? MR. GRIFFITH:
been litigated under 609.

No.

I don't think it has

I don't think they have ever

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attempted to get it in on the 609.
MS. BOWEN: °1 believe that's correct.

Mr. Winter moved for it under 404.

I don't know 'if he

felt the timeframe was inappropriate, which it is not,
but he never did move under 609.
THE COURT:

All right.

And educate me, if

you will, Counsel, if Judge Jarrett did not allow the no
contest 1984 plea to be admissible under Rule 404 -- is

that correct?
MS. BOWEN:

She -- it was my understanding

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of the ruling, was that the information regarding the use of the drugs to that child was admissible, but the second part, that the child was molested while under the influence of the drugs was not because in this case there was no evidence to support a molest. So she But the

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thought the molestation part was prejudicial. prior drugging of another child was relevant.
THE COURT: MS. BOWEN:

All right. However, the State was unable

to locate the victim in that matter.
THE COURT:

Okay. May I answer that, Judge?

MR. GRIFFITH:
THE COURT:

I db have the minute entry of

June 2nd, 1995. MR. GRIFFITH: Okay.

That's what I was

going to refer you to.
THE COURT: All right. Thank you.

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As to the first three events,

or actions that the State wishes to introduce for purposes of impeachment, ie, the January 12, 1984 no contest plea to indecency with a child; the number 2 item which is that on August 23, 1983 the Defendant was accused of molesting Shani Waller while Shani Waller was
at the Defendant's residence between August 2nd and 19, 1983; and item number 3, that in June 29, 1995 Defendant

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was accused of mOlesting Robyn Kennelly while Robyn was at the Defendant's residence on June 13, 1995, right now the Court does find that those events or actions, although relevant, are extremely prejudicial and that the prejudicial effect outweighs the probative value. And those three incidents are not admissible. As to item number 4, that on August 24,
1995 Defendant was accused of influencing witnesses and conspiracy to commit aggravated assault for threatening Robyn Kennelly's family if they did not withdraw their criminal complaint against him, that, like item number 3 is the subject of the current cha~ge and prosecution

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against you, Mr. smith. offense at this time.

You remain unconvicted of that

At this time, I find that

although relevant to impeachment of character, the
prejudicial effect 'of a pending charge outw~ighs the probative value. As to items 5 and 6, which may well overlap into some of the other motions, item 5 being August 6, 1995 Defendant contacted Randall Winkler in Renton, Washington and attempted to solicit

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Mr. Winkler's cooperation in this prosecution by having Mr. Winkler perjure himself. Defendant asked

Mr. Winkler to testify untruthfully about the victim in this matter; and, item number 6, that following the

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telephone conversations with Mr. Winkler, Defendant followed up those conversations with letters which asked Mr. Winkler to perjure himself for Defendant's behalf in this trial. Do you need any further arguments on items
5 and 6, Ms. Bowen? MS. BOWEN:
THE COURT:

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No, Your Honor. Do you want to argue beyond

what your written response is, Mr. Griffith? MR. GRIFFITH:
THE COURT:

No, Your Honor.

All right.

As to items 5 and 6, the Court does find

that introduction of evidence or introduction of
testimony relat~dto the Deferidant contacting 'Randall Winkler by telephone and later by subsequent lett~rs is i r:elevant. It deals with the incident and offense for
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which Mr. smith is being prosecut~d in the instant case.

The Court also finds that it does fall withib the non-hearsay basis of being an admission against
interest.

MR. GRIFFITH:

I'm sorry, Your Honor, I If you

thought we were just discussing the 404 nature. want me to discuss THE COURT:

Why don't you go ahead and

discuss the 801 admission against interests statement.

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Thank you, Your Honor.

801(d) (2) (A), there is no way this fits under that.
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When you take a look at that, that has to be a statement
which is made relevant to this particular case.

And I

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have filed a written response to their Motion under
801(d) (2)

(A).

And essentially what they are attempting
They are

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to do, not introduce evidence about this case.

trying to make Mr. smith look like a bad guy.

It says It

right in that letter, did not commit this offense. is not an admission under any stretch of the imagination. It is a subsequent bad act.

It is an act

that he should not have done.

But he says in the

letter, I did not commit this offense and I am seeking your testimony in an effort to prove my innocence. want you to lie in order to prove my innocence. not a confession as to this statement. go to his credibility. I

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So it's

All it does is

Has nothing to do with being an It is a subsequent

admission to conduct in this case.

act, and an effort to solicit testimony should not come
in under 801(d) (2) (A). THE COURT: All right.

Any final word as

to items 5 and 6, the telephone conversation and the letters to Mr. Winkler by the Defendant on both 404, 405 or 608 grounds, as well as 801, Ms. Bowen?
MS. BOWEN:

Only if the Court requires a

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response to the 801 by Mr. Griffith.
THE COURT: add, thank you.

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No.

If you have nothing to

Let me deal with the two incidents under
Rule 405.

The Court does find that these two incidents,

the telephonic contact with Randall Winkler by the Defendant and the letters which followed thereafter by

the Defendant to Mr. winkler, are indeed specific
instances of conduct under 405(b) which are relevant and 405(a), excuse me, which are relevant on cross-examination as a form of inquiry for any witnesses

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who will testify as to the character of Mr. Smith and whether those witnesses are familiar with these actions by Mr. smith.
So telephonic

-- telephonic conversation

by the Defendant with Mr. Winkler and the letters by the

Defendant with Mr. Winkler or to Mr. Winkler are admissible under 405(a).
As to whether unde~ Rule 801(d) (2) (A), the

three letters that I received copies of yesterday by Mr. smith to Randy Winkler, or Randall Winkler are
admissible under rule 801(d) (2) (A), the Court does not

agree with your statement, Mr. Griffith, that these are letters solely made by the Defendant to Mr. Winkler for the purpose of having Mr. Winkler lie about a true event. The Court finds that the three letters are

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contradictory, that they refer to the Defendant requesting that Mr. Winkler lie, and in Mr. Smith's behalf, that Mr. Winkler lie that he, Mr. Winkler, was in Phoenix at the time of this event in July of 1994. It contains another request by Mr. smith that Mr. Winkler lie about being present in the residence where the victim was present, and it also requires, or is a request to Mr. Winkler that Mr. Winkler rely on a
claim by the Defendant that the victim asked for drugs while in the residence of Mr. smith. The second letter

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by Mr. smith contains the statement to Mr. Winkler, that I just -- "I just don't know who was here to hear this stuff".
The third letter, which is the last one, also

contains a statement 'made by Mr. smith in the yontext of attempting to convince Mr. Winkler to lie for him with the statement:
The favor I ask of you really happened. The Court does

I just don't know who the person was.

find that the three letters taken in context do

constitute a statement against interest under Rule
801(d) (2) (A).

It is ordered that the testimony of Randy Winkler is admissible for the purposes of introducing the oral statements that Mr. smith made to Mr. Winkler and for the purposes of introducing the written statements made by Mr. smith in the form of the three

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Your objection is noted for the record.
THE COURT:

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You have filed a motion

entitled, Ms. Bowen:

state's Motion in Limine to

Preclude Defense Counsel from Proffering in opening statement, or Eliciting During Direct or Cross-Examinations, or Arguing in Closing the Idea of "Why Would Defendant Administer A Drug To Rachel Tseko". Anything further in response to that Motion in Limine anything further in behalf of that Motion in Limine. MS. BOWEN:
Just, based on the response

which Mr. Griffith has filed that the State has no evidence of motive and that fact should be made clear to

the Jury, I think thatis a misstatement.

The State was

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aware of other information at the time this was reported as well as an explanation of motive based on prior
conduct by the Defendant. And I think it gives unfair

advantage to the defense as well as an unfair view of the case to say that we are just 9perating out of
nowhere.

There is reasonable grounds to believe that,

based on his conduct with this person, with Rachel, he had a sexual interest in her. He demonstrated it in the

way he treated her in the relationship outside of their
business and the fact that he was inappropriately in the

business context with her.

So there is corroborating

evidence to show he has done this before, and the motive

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very likely was a molestation. In fact, in' the Defendant's statement to

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the police, one of the things he asked them, did she say
I touched her.

That came out with inquiry from the

police.

He asked whether or not she said that to him.

He has, I guess, is his state of mind at the time he's
being interviewed by the police officer, by the way, did she say I touched her.

If that evidence is put out by
That's

the defense, there is corroborating evidence. opening the door for the state to introduce that
evidence. THE COURT:

Ms. Bowen, am I missing

something?

I'm not trying to be facetious or sarcastic.

What I'm aSking, wouldn't the state, rhetorical or otherwise, why would Defendant administer a drug to Rachel Tseko, in fact open the door for the state to present information as to motive by the Defendant?
MS. BOWEN:

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That's what I was saying, Your

Honor.

But the motive I think goes to other acts this When we have

Court said, this Court said can't come in.

information from this victim, corroborated by acts against other victims, the other inference, it is not a shot in the dark the State is just alleging here. That's what Mr. Griffith -- he wants to put out speculation, the State doesn't have any reason -- no

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reasonable person would do this.

A reasonable person

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may not.

However, a person who has done it twice Only the absence of mistakenly

before, may do it.

giving her this drug, he didn't realize he gave her the drug, he had no reason to' give her the drug. The reason
is there.

Whether or not the state can present it, he

wants to let this Jury speculate and bind the state to not respond.
THE COURT:

All right.

Mr. Griffith, since you prevailed by Judge Jarrett on June 2nd, 1995, in effectively precluding the
state from introducing 404(b) evidence as to any sexual advances by Mr~ smith towards Shani Waller, how can you state in your response that,the state has no evidence of motive by your~client? And given the fact that Judge

Jarrett did admit the Rule 404(b) testimony evidence on

a limited basis.

That is:

Number one, that the state may introduce that the Defendant allegedly attempted to medicate 14-year old Shani Waller when she spent the night at his house; and, Number two, the state may also elicit testimony from Ms. Waller regarding comments the Defendant made to wanting to get her drunk to see how she acted.

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All right?

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MR. GRIFFITH:

Judge, the prosecution has

informed me here yesterday and -- informed me yesterday they could not find the witness to make that case. they, under the June 2nd minute entry before Judge Jarrett, they are not going to be introducing any evidence to that effect. And they have admitted that That is what So

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now no evidence of that is coming in.

would enable me to ask the question, why would he do it.

If the Court orders me not to do it, I won't do it.

Or

if the Court says, by doing that I somehow open the door to otherwise inadmissible evidence, I won't do it either. But the simple fact remains, they don't
have any evidence to indicate this was a sexual matter in any way. time. In fact, the girl was on her period at the

And I suppose some people would molest a child, a

child on her period, but it seems unlikely.

If the

Court is going to rule this would open the door to otherwise inadmissible evidence, I won't do it.
THE COURT:
MS. BOWEN:

Thank you.

Anything else?

I would say, although we don't

have the witness, that was Judge Jarrett's ruling, it can be proved other ways. There is a certified copy of

the departmental report and the prior conviction record

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of Mr. smith that be can be proven up with fingerprint analysis, does contain the details of that incident including the drugging, can be proven up still by admission of a certified record.
THE COURT:

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All right.

Thank you.

Mr. Griffith, I am going to and I do order that, that you stay away from asking the question, why would the Defendant administer a drug to Rachel Tseko.
You stay away from any statement or question that says

or conveys the same message in different words.

And if

you do open the door, then I will consider Ms. Bowen's request to introduce evidence of the incident involving the young girl Shani Waller thJbugh the pdlice report and though fingerprint evidence.
All right. Ms. Bowen, you've also j- you state's

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have also filed your pleading entitled:

Intention To Elicit Conduct Defendant Demonstrated Toward Rachel Tseko, victim. under Rule 404(b). that?
MS. BOWEN:

And you are bringing that

Anything that you want to add to

'The only other thing I would

add, Your Honor, is number 1, and number 2, and number 3

are all contained within the Defendant's interview and admission to the police officers. And so it would also

be allowed under a statement against interest and it

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also completes the entire scenario of this victim and
Defendant's relationship. The entire time they had

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contact with each other is very limited.

They knew each

other less than a month -~ or, less than two months. And it would just seem highly incredible this happens out of nowhere without some prelude to his prior conduct with her.
THE COURT: Thank you.

Mr. Griffith, why don't you respond to
what Ms. Bowen said about items 1, 2 and 3 relating to

the Defendant and Ms. Tseko already being in your client's statement to the police.
MR. GRIFFITH: Number 1, included in that I

there is factual dispute as to who paid for what. But -~ and I have not contested number 1. In fact" I
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believe number 1 is going to, lis going to come into
evidence.

Number 2 is addres~ed in my client's
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statement to the police, but -- and in 'my client's statement to the police he denied it. He denied that he had ever offered her $10 per hour to layout in her underwear. But in fact, he's the first person that
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brought it up and said she did it through little or no encouragement from him. She would rather layout by the pool than work. That's certainly understandable for a

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teenager.

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As far as the item number 3, this is the evidence about alcohol that they are just trying to get in, it's going to be prejudicial. There is no

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testimony he had alcohol to drink that day, no testimony he was intoxicated, no testimony that his judgment was
impaired.

And I just don~t want them to fabricate out

of thin air some kind of idea he got drunk and then
drugged her. That has not been an allegation up until

now and shouldn't be an allegation subsequently.

And

the fact that he purchased a six-pack of beer is not
relevant, versus the fact, there is no allegation he had anything to drink that day.

And again, as to number 4, in my client's
statement to the police he denies ever giving the child the White zinfindel. THE COURT: .AII right.
Thank you.

As to items 1 -- 1, it's not contested by the Defendant, item 1 dealing with the fact that the Defendant took Ms. Tseko shopping, at which time $480 worth of clothes was purchased.

And whether it is

disputed as to who purchased the clothes, the Defendant or Ms. Tseko, remains for your cross-examination, Mr. Griffith. But, the incident of shopping resulting

in the purchase of $480 worth of clothes is admissible.

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As to item number 2, that during the course of Rachel Tseko working for the Defendant at his
home, the Defendant invited Ms. Tseko to lounge pools ide

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with him, and that since she did not have a swim suit
the Defendant offered Ms. Tseko $10 per hour if she

would sunbathe in her undergarments, Ms. Bowen, you may only introduce information relating to that incident as it is contained in Mr. smith's statement to the police.
MS. BOWEN:

Perhaps you can clarify that

ruling for me.

You're saying the credibility in those

versions of events by the victim doesn't go to the

weight, it's not -- goes to the admissibility?
THE COURT: No, that's not correct. You

may also introduce evidence of that through Ms. Tseko as well.

The Court does find that that information
is relevant to show the complete story, show the relationship, albeit shortlived, between the Defendant and Ms. Tseko. As to items 3 and 4, that in item 3, the Defendant on July 7 picked up Ms. Tseko to take her to

work at his house.

On the way he stopped at the liquor I haven't read

store and purchased a six-pack of beer. the police reports.

I'll rely on your representation,

Mr. Griffith, there is no evidence that the Defendant

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was intoxicated, the Court does not find that the

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introduction of a six-pack of beer being purchased by the Defendant on the same day is relevant, and the Court does find its prejudicial effect would outweigh any relevance or probative value, because this case involves a claim of administration of drugs and not alcohol. As to the item 4, the incident involving Mr. smith providing Ms. Tseko with white wine the day
before the date of July 7, 1994, the Court also finds

that that is n9t relevant to the issue of whether
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Mr. smith administered a drug to Ms. Tseko on July 7th. Its prejudicial effect outweighs any probative value. That will not be admitted either. MS. BOWEN: Your Honor, I would ask for

leave then to retrieve from evidence the tape-recorded statements of the Defendant in order to redact those portions of it, otherwise during the playing of them I will have to catch that portion of it, stop it. I find

that cumbersome and pretty much a red flag to the jury.
THE COURT:

When were you planning on

playing those tapes?
MS. BOWEN:

I think I can lay most of the

foundation as for most of that with Detective Powers, but we can wait until tomorrow to play them.
THE COURT:

Your request is granted.

You

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can wait until tomorrow to redact those portions of the tape dealing with items 3 and 4. Thank you.

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Have I overlooked any of your other motions?
MS. BOWEN:
THE COURT:

Not from the state. Mr. Griffith, have you filed

your own motions in limine?
MR. GRIFFITH:
THE COURT:

Yes, Your Honor.

Just one.

Relating to your objection

that the state, having announced yesterday that the
doctor, I believe it's Dr. D'Asaro MS. BOWEN: THE COURT:

No.

That's Dr. Suchor.

Thank you.

Dr. Suchor is

unavailable on account he is out of the country at this time, he can not testify as a witness, that the State has notified you that they intended to introduce the custodian of records of the medical exam conducted by Dr. Suchor, and that such substitution of the custodian of records violates your client's right to confront and cross-examine. Anything else, Mr. Griffith? MR. GRIFFITH:
THE COURT: MS. BOWEN: THE COURT:

No, Your Honor.

Ms. Bowen? No, Your Honor. Educate me a little bit as to

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what Dr. Suchor would have testified to and also what, what your -- what the substance of the custodian of
records testimony will be. MS. BOWEN: The substance of the custodian

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of records, to lay the foundation for a business record exception indicating that. the record is made at or near the time of the underlying event, that it's made by or from information transmitted by a person with first-hand knowledge acquired during the course of a regularly conducted business activity, the record was made and kept entirely within the course of that regularly conducted business activity, and pursuant to a regular practice of that business activity, and that the custodian of records is qualified within her job to maintain those records, that the records themselves encapsulate the doctor's time with the victim, his interview of her, his physical examination of her and the medical treatment administered to her based on her
complaint that she was drowsy that day and she was

having some unusual symptoms.

There was a preliminary

urinalysis done and a sample preserved which was turned over to the police department, which forms our chain of custody, second testing of that urine done by Deputy of
Public Safety Officer D'Asaro. The preliminary result

from the hospital did show possible for benzodiazepine,

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a metabolite of Halcion.

The doctor told Detective

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Powers they should be looking for Halcion in their next test, a more sophisticated, more complex test. The test

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performed by Mr. D'Asaro did show positive for Halcion. Based on the record, the exception, the entire record can come in without excision. There is no

qualifications beyond those listed by the state, no
exception to excises a business record under the Rule.

Additionally, the state was informed by the doctor when
he received the subpoena that he would be out of town, out of state, out of country. That was the first time

the state had contact with him.

And given the posture

of the case -- at that time Mr. Griffith was insisting on going to trial, he had. refused any further continuances, and he was adamant in his motions this

matter be put to trial, we should stop delaying it.
Based on that, the state does have another avenue in which to introduce those records, which the state is doing.
THE COURT:

You're moving under 803(6)

records of regularly conducted activity business records to admit the medical records that contain the statements of the victim and the diagnosis of treatment of

Dr. Suchor; is that correct?
MS. BOWEN: Correct.

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THE COURT:

You, Mr. Griffith, have argued

under 803(4) statements for purposes of medical diagnosis or treatment record should not be admitted.
MR. GRIFFITH:

Well, I assumed she was We

going under 803(4).

She has no chance under 803(6).

still have a Constitutional Right to confront and cross-examination witnesses against us. And the only

thing that Ms. Bowen has said I agree with is that I

9
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said, hey, let's stop messing around with continuances and get on with it.
I did say that. But when their

only witness is on vacation, out of the country, I mean that's commonly -- judges take into that into consideration. I'm sorry, I appreciate the fact you

14 15 16 17 18 19 20 21 22 23 24 25

want to go to trial, but their only witness is out of the country. witness. Their case can't proceed without this

You have a right to Constitutionally confront We can't go to

and cross-examination the'witness. trial.

Had there been any indication we would not be

given the opportunity to cbnfront and cross-examination this witnesses, this witness, I mean, that's crazy. Essentially, I think this case is over, Judge.
can't get it in through 803(6).

They

They can't make their

case without him.
THE COURT:

Mr. Griffith, did you

interview Dr. Suchor prior to trial?

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MR. GRIFFITH: THE COURT:

Yes, sir.

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At that time you questioned

him regarding his diagnosis and treatment of the victim? MR. GRIFFITH:
THE COURT: Yes, sir.

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And his, his information that

he apparently relayed to the County investigator to look

for or to conduct a more sophisticated test to look for
the drug Halcion? MR. GRIFFITH: questioned him about that. I don't know that I

I mean, that's -- as far as I didn't consider

I'm concerned, that's just hearsay. that all that important.
THE COURT:

Would counsel approach,

please? (Side-Bar Conference, off the Record)
THE COURT:

All right.

I have had a brief

side-bar conference with counsel.

And, Ms. Bowen, you

are seeking to introduce the entire content of the medical records of the victim, which also include a urine test done by hospital staff that the results of that urine test show the presence of derivatives which were linked to the drug Halcion; correct?
MS. BOWEN: Correct.

If I can clarify for

the record, admission of the record through the custodian of records, I believe is proper under 806.

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The information contained in the record is, is

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admissible as not being hearsay under 803.

So the
How

contents of the records C9me in under one rule. they come in is a separate rule. the State was making. witness.

That's the argument

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They can be brought in by another

They don't have to be brought in by the

doctor to do that.
THE COURT:

Okay.

You get the last word

on the motion, Mr. Griffith. MR. GRIFFITH:
Thank you.

We have a This is

Constitutional Right being violated here. serious business.
Thank you.

THE COURT:

.AII right.

I have considered

your arguments.

The State at this time is seeking to

introduce the medical records of the victim as exceptio~s to the hearsay rule under Rule 803(6), records of a regularly conducted activity. The Court

rules that upon eliciting testimony from the custodian of records, that the records at issue, ie, the medical records of the victim are indeed and in fact the records kept by the hospital as part of their regularly conducted activity, that the records which include a urinalysis or urine test of the victim are admissible. The Court is limiting the information contained in those records to eliciting from the custodian or anyone else

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authorized or with knowledge to so testify, as to whether or not the taking of a urine test is part of the regularly-conducted activity of the hospital. The state

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may not, through the custodian of records, elicit information or testimony as to what Dr. Such or or any other medical professiona~ will do in treating the victim. The victim may be cross-examined as to any The state shall

statements that she made to the doctor.

not -- again, just to be sure I'm clear on this, Ms. Bowen, you may not attempt to introduce statements authored by Dr. Suchor in his treatment of the victim, which, unless you have a nurse or someone else who could testify that the victim was seen to be in a drowsy
condition or state, limits and prohibits the Defendant from cross-examining the accuracy of those statements by

the doctor or some other medical health provider.
other words, you can elicit what tests were contained

In

and are contained in the medical records but you may not elicit statements that Dr. Suchor or someone else who is not available would otherwise make in treatment. understand?
MS. BOWEN:

Do you

You're saying his diagnosis

and his basis for his diagnosis, although the whole
basis for the medical exception, have to be excised from the record.

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27 1 THE COURT:

I'm saying you may have the

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custodian identify what the contents of the medical records are, such as contain a urine test, they contain a blood pressure reading, they contain a temperature reading, et cetera. But you may not substitute in, in

the statements that Dr. Suchor would otherwise testify to if he were here in this courtroom.
understand?
MS. BOWEN:

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Do you

I understand what you're

saying.

I don't understand the Court's ruling, because

the -- if you let them in under the business exception, the records come in, they come in in whole. The Jury is Any

to review them and decipher them for themselves.

information contained within that record is admissible under the medical records exception, so the information itself is reliable and valid. There is no reason to I'm not sure why The

exclude it under the business records.

the Court is excluding the information contained.

custodian of records -- it is improper for the custodian of records to testify to the records. She can only

testify the records are accurate, not what they contain. It seems you're trying to make a hybrid ruling of medical exception and business record. hybrid.
THE COURT:

There is no

Perhaps I am.

I am also

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concerned, Ms. Bowen, the author of the contents of the

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record isn't here, Dr. Suchor. create a balance, if you will.
MS. BOWEN:

That's why I'm trying to

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

I think those concerns were They say that
It's not

addressed in the Rules of Evidence.

business records are exception to the hearsay.

hearsay, therefore, it doesn't have to be
cross-examined. The reasons for the hearsay exception,

the exception to being hearsay as business records, there are specific reasons why they are not considered unreliable, or that they are inherently misleading. There is a purpose for keeping them a certain way. There are laws that require they be kept a certain way.

There is no issue they were not kept that way in this case. So the Court, the concerns the Court is

addressing have already been addressed in the Rule itself.

I don't think Mr. Griffith is raising anything new when he says there is a right to confrontation. Business records would also have that

concern, because someone had to enter those informations into the documents themselves. If the Rule allows for

the exception, that issue of confrontation has been addressed and determined not to be appropriate in this case.

25

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29 1 THE COURT:

All right, thank you.

2 3 4 5
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Anything else, Mr. Griffith? MR. GRIFFITH: Yes, Your Honor. I believe

Ms. Bowen is right when she says you indicate, you appear to be trying to draft a hybrid, and I appreciate that. I understand that. But as you're well aware, the

7 8 9
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Constitutional Right to confrontation is bigger than and

more expansive than the hearsay rule.

While under the

hearsay rule some of this may be admissible, it is not admissible.
You cannot admit evidence against this man

without giving him the Right to confront.

I think I

that's what your ruling is attempting to do.

understand that the Court is reluctant to cut short a trial that hasn't even started yet. the state is not ready to go. simple. The But what we have is

It really is just that

state cannot proceed because they do not can show that chain of custody of the

have witnesses who urine or

anythingelse.

For you to draft a ruling that

says, I'm going to allow them somehow to get their first couple of steps in a chain of custody of urine, deprives this man of his Rights.
Thank you. THE COURT: All right.

Anything else,

Ms. Bowen? MS. BOWEN: Yes. Briefly, Your Honor.

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First of all, the chain of custody span not only from

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the record of the hospital but also from Detective Powers picking up the samples itself, which was marked. I would like to read for the Court from Morris Udall Law of Evidence a very a brief paragraph regarding the admission of these records.
business records. It says:

We are talking about the

The foundation for the admission

of a business record is conveniently laid out in numbered paragraphs in the Arizona Rules. It is clear

that neither the person perceiving the event nor the person making the entry is an essential foundational
witness.

While the custom -- while it is custom to

establish the foundation by calli~g the custodian of records of the business, this too is not necessary. witness with knowledge of the foundational facts, how the records were prepared, is competent for this
purpose. A variety of records have been admitted under

Any

this exception.

Those include, invoices and shipping

documents, time records, hospital records, school
attendance records, traffic signal installation records,

and reports of experimental testing of a chemical. Specifically mentioned are hospital
records.

Whatever concerns Mr. Griffith has raised, it

has already been addressed in this Rule, and it is

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permitted under the law. get these records in.

I think it's a valid way to

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There is nothing which would give That's not

rise to confrontation, unreliability. present in these cases.
THE COURT:

Thank you.

I'm going to take

a very quick break.

I want to make a more educated

ruling on this decision.
Manny, please tell the Jury that we are running late, that we will be with them shortly. And

I'm going to be back on the bench in about ten minutes.
Thank you.

(Break)
THE COURT:

The record will show the

presence of both counsel, the Defendant Mr. smith, the

case agent, and court reporter and court staff, the clerk.
All right.

Counsel, I have reviewed this

issue more closely.

And I find that your position,
The exception under Rule 803

Ms. Bowen, is well taken.

to business records does apply to hospital records.

It

does include the contents of the tests, and the contents of those records including the treatment records of the doctor. And, over your objection, Mr. Griffith the

purpose of hearsay is that, by its nature, the author of the information is not available or subject to

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cross-examination.

I find that the reliability

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established, inherent in the Rule of business records
803(6) is a basis for the admission of the forthcoming hospital records.

Your motion is limine is denied. I need to make a record if

MR. GRIFFITH: I may.
THE COURT:

Beyond your argument, beyond

your motion? MR. GRIFFITH:
THE COURT: Yes, yes.

Go ahead.

MR. GRIFFITH:

The Court's ruling that a

witness who goes on vacation and notifies the proponent
of the evidence far in advance of going on vacation, and the proponent does not move for continuance or notify THE COURT:

I'm sorry.

I did not hear

you.
MR. GRIFFITH: Does not notify the Court

or other party their witness is not available, that is not an unavailable witness.
inaccurate.

The Court~s ruling is

It's inaccurate for the other reasons we

have listed.
THE COURT:

803 provides hearsay is

admissible, whether or not the declarant is available, whether or not the declarant is available. objection is overruled. Your

Do you need another break for

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anything before we bring in the Jury? MS. BOWEN:
THE COURT:

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Just to move the easel. Beyond that? No.

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. GRIFFITH:
MS. BOWEN:
THE COURT:

No. Counsel, do you want me to go

ahead, explain the Rule of exclusion of witnesses to the
Jury? MS. BOWEN:
THE COURT:

That's fine with me. I'll go ahead and do that.

(Jury present) THE COURT:

Good afternoon, Members of the Have a seat, please.

Jury.

I beat you out today.

The record will show the presence of the
Jury, both counsel, the Defendant Mr. smith and the case

agent, court reporter and court clerk.
ready to proceed?
MS. BOWEN:

Are counsel

Yes, Your Honor.

MR. GRIFFITH:
THE COURT:

Yes, Your Honor.

Members of the Jury, I'm sorry

about the late start.
go at 1:30.

I know you were here and ready to

Please don't hold it against either party.

I needed to take care of some matters.

It's my hope in

taking care of these matters the rest of the trial will proceed on a rather smooth basis in terms of our start

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times and stop times.

with that, now, we are going to

proceed with opening statements by both counsel I've referred to yesterday. evidence will begin. If you are ready, Ms. Bowen, you're welcome to proceed.
MS. BOWEN:

After that, presentation of

Thank you.

If it please the Court, defense counsel,
Members of the Jury:

This case involves, at the time, a
And she comes in

14-year old girl named Rachel Tseko.

contact with the Defendant at her employment as a waitress at a restaurant. She waited tables. offered her a job.
pick-up.

This was in Fountain Hills.

Mr. smith came in one evening and In retrospect, basically it was a

14 15 16 17 18 19 20 21 22 23 24 25

He offered her money to work for him.

The testimony will show that it was a very odd business relationship. places of employment. First of all, he had two

One was his business office and And he offered her, a

the other was his office at home.

child of 14, $6 an hour working for his office filing and basic office work at the office.
He offered her $8

an hour, offered at the same office at the house.

However, at the house may also include light housekeeping, dusting, vacuuming. More money if she

would do other things, such as sunbathe.

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The entire time Rachel has contact with the Defendant is very short, perhaps a month. During

that time, she goes to work, notices -- she is working at his house, supposed to. answer the phone, take care of the office stuff. much work to do. One of the problems, there isn't very During the time she works for him, she

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gets to call her friends, chat on the p~one, watch TV, watch videos. Basically, gets paid for doing nothing. During the time that Mr. smith has contact with her, Rachel -- and on one occasion he indicates he's, he's going to layout at the pool. some company. He would like

During that time he says that she can It's a hot July day, typical

join him out there. weather we have. attire.

And she. says she didn't have proper He

She is going to be too hot in her shorts. Can't

indicates he'll look for his wife's swimsuit.
find it.

17 18 19 20 21 22 23 24 25

Well, why don't you just come out in your bra He told her he would give her $10 an hour To a 14-year old girl, that sounded She was kind of concerned

and panties.

if she did that.

like a pretty good deal.

about maybe doing that so he promised her he wouldn't look. Rachel goes out there in a bra and panties, lays

out there for $10 an hour. Additionally, there came another time the day we are going to be concentrating on, July 7, he

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calls her up, tells her he'll pick her up for work. Brings her over to his house, and has her start doing
some general housekeeping.

2 3 4 5 6

Mr. smith's wife is out of

town the entire time that Rachel works for Mr. Smith. She is visiting relatives in Texas. His wife, unaware

that he has hired this person, has never met Rachel. Now, Rachel realizes that, according to Mr. smith, his wife should be returning some time that weekend.
7th is a Thursday.

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July

They have -- Mr. smith has Rachel

come over.' They rearrange the furniture, do some general cleaning, and get the house ready for his wife's return.
I

On that particular day, there wasn't a lot of work to do and Mr. smith had videos in the house, and
they watched videos that day. day. July 7th, 1994 is a hot

Mr. smith asks Rachel if she would like some hot She indicates. that doesn't sound like a very

chocolate.

good idea considering the temperature, asks for sparkling cider she had noticed in the refrigerator. Instead, he gets her the sparkling cider. That sparkling cider is poured into a mug -- not a glass, a mug. she drinks it. Rachel takes a sip of it and

She asks him whether or not this is She is

alcohol because she is starting to feel funny. getting giddy. She is getting tired.

She starts

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laughing.

He assures her that cider does not have Says no alcohol At the end of Complaining

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alcohol in it, shows her the bottle. content on it. She gets a second glass.

the second glass she is noticeably tired.

5 6

that she is drowsy, Mr. smith tells her to go lay down.

So he's paying her $8 an hour to now sleep at his house.
When this happens somewhere around 1:30 in the

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afternoon, Rachel cannot recall anything after that
time. She gets a phone call at that residence

from her mother around 5:00 o'clock at night. told by her mother she had talked with her. no recollection of that phone call.

She was

Rachel has

Sometime around

then, 'when Rachel mother's calls, she is on the phone, the first thing she says, what is wrong with you. sound drunk. You

She wants to know, how come she is acting Mr. smith assures her he'll

so goofy on the phone. bring her home.

Around that time, Mr. smith's wife It's evident

comes home from Texas with the children.

she is not expecting to find this 14-year old girl in this home. Mr. smith takes Rachel home. Mr. Smith,

takes her home, makes it a point to tell Rachel's mother he had an unusually busy day at work and he was on the phone at lot. He did indicate that Rachel was very
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38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sleepy, seemed odd, and that if anything else happens

let him know.

Rachel's mother is very upset, tells her Rachel

daughter go lay down, about 5:30 in the evening. sleeps the entire night, until 7:00 o'clock. mother is upset. She speaks with Ron Lundin.

Rachel's Ron

Lundin is an uncle.

At the time Rachel and her mother

left Mr. Lundin's home, Rachel's mom and Mr. Lundin confer about Rachel is not right, something is wrong
here, concerned about her. demeanor, sleepy, vacillating

in conduct from being wide awake, wide awake, giddy to unarousal and sleepy. They decide to take her to the hospital, scottsdale Memorial Hospital. She is examined and,a

speci~en of urine is drawn for all these metabolites of benzodtazepine which is a derivative of Halcion. Initially that sample is preserved. preserved. It's frozen and

It is picked up later by Detective Powers

for reexamination for a further testing to find out exactly what is in it. Public Safety. It's tested by the Department of

Sure enough, Halcion. Now, during that time, Mr. smith's house

is searched and they find a prescription bottle in the kitchen for Halcion. The bottle is empty and Mr. smith

indicates he had taken the last pills probably a month ago. You're going to find out no one else at the Lundin

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residence has a prescription for it.

No one has the

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6

drug any other way, and no one has any sleeping agents, that Rachel was fine before she went over to that house. She was not fine when she left that house. Based on that, you will return a verdict
of guilty. Thank you.
THE COURT:

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Thank you, Ms. Bowen.

Mr. Griffith? MR. GRIFFITH:
Thank you.

Your Honor, Ms. Bowen, Ladies and Gentlemen. First, you have to decide what law you are I get to talk to you about

going to be asked to apply.

the law and also the 'evidence in the case. The law, as
you've already heard the Judge tell you, did this man

administer a drug to this child. out what administer means.
it means.

And you have to find

Some of you even asked what

What it means is to facilitate the ingestion.

In this particular case because there is no evidence of ingestion MS. BOWEN:

outside the scope of opening

statement.

This is not what the testimony will be.
THE COURT: Overruled.

Given the unusual

circumstances where counsel both agreed that the definition of administer could be presented to the

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