Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

2 II (FIRM STATE BARNo. 14000) 3
II

AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL

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

CRIMINALApPEALS SECTION 1275

(STATE BAR NUMBER 022246)

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II

ATTORNEYS FOR RESPONDENTS

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner, -VS DORA B. SCHRIRO, et aI., Respondents.

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CIV 04-573-PHX-FJM (MS)

EXHIBIT H, PART 4, PGS. 120-139 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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continue to come in and whoever can get a seat, go ahead
and take a seat because I know everyone will be able to

fit.
All right.

I think everyone has just

about squeezed in.

Thank you, for those people who are

standing, thank you for inconvenience. At this time, the record will show the
presence of the both lawyers, the Defendant, Mr. smith, the court reporter and court staff. This is the time for the clerk, Ms. Kuder, to go ahead and read out the names of those people who

have been selected to sit as jurors in this case.

As

your name is called, Mr. Bustamante will direct you to
one of the seats in the jury box and please take that seat that you are directed to.

Ms. Kuder, would you go ahead, please?
THE CLERK:

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Francis Trey.

Michael Hawes.

Cheryl Blodgett. Wendell Stratman. Jan Kornrumph.

Gary Meints.

Jacqueline Emmons. Donna Person.

Kris Cartwright.

TflE COURT:

.AII right.

To those people

who are still in the back of the courtroom, I want to thank you on behalf of the parties and myself and my staff. It was a long process, but your participation in I

the jury selection process was absolutely necessary.

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want to thank you for the candor that you provided in giving the answers to your questions. from service in this case. Jury Commissioner Office. You are excused

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You need not report to the
It's 5:00 -- it's after 5:00.

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Thank you very much for your participation
and have a good evening.

I'll stay here on the bench with the other
Jury members.
Thank you. (Panel excused) THE COURT:

All right, the Panel Members

who were not selected to be jurors have left the courtroom. At this time, the clerk will please go ahead If you will, members of the

and administer the oath.

jury, please go ahead and. stand.

After the oath is

administered to you, have a seat and the charges -- or, charge will be read to you. (Jury Panel Sworn)
THE COURT: All right.

Ms. Kuder, will

you please read the charges -- charge.
THE CLERK:

In the Superior Court of the

state of Arizona, in and for the County of Maricopa, State of Arizona, plaintiff, versus William Floyd smith, defendant.
Number CR94-92467.

Indictment. The Grand Jurors of

Administering Dangerous Drugs.

Maricopa County, Arizona, accuse William Floyd smith on

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this 11th day of August 1994, charging that in Maricopa

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County, Arizona, William Floyd smith on or about the 7th day of July 1994, knowingly administered Halcion, a dangerous drug, in violation of Arizona law.
bill, dated August the 11, 1994. I can't read the foreman of the Grand

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A true

Jury's name, and it's Richard Mr. Romley, Maricopa county Attorney, by Brynner Brown, Deputy County
Attorney.

To which the Defendant enters a plea of not guilty.
THE COURT: Thank you.

Members of the Jury, now that you have been sworn as a jury in this case, I need to go ahead
and give you what we call the preliminary instructions at the beginning of this case.

It will be some general

instructions that will govern your conduct and behavior as witnesses -- as jurors in this case. It should not

take too long but the instructions do need to be given to you. Let me go ahead. Now that you have been

sworn, I will briefly tell you something about your duties as jurors and give you these instructions. At

the end of trial, I will go ahead and give more detailed instructions and those instructions will control your

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deliberations.

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It will be your duty to decide the facts. You must decide the facts only from the evidence presented here in Court.
guess about any fact.

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You must not speculate or

You must not be influenced by

sympathy or prejudice. You will hear the evidence, decide the
facts and then apply those facts to the law that I will give to you. That is how you will reach your verdict.

You must not take anything that I may say or do during this trial as indicating any opinion about the facts. You and you alone are the judges of the facts regarding the evidence. You will decide what the facts are from
the evidence presented here in court. That evidence

will consist of testimony of witnesses, any documents, and other things received into evidence as exhibits, and any facts stipulated to by the parties which you are instructed to accept. You will decide the credibility

and weight to be given to. any evidence presented in the case, whether it be direct evidence or circumstantial
evidence.

Regarding my rulings as the Court. Admission of evidence in court is governed by rules of
law.

I will apply those rules and resolve any issues

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that arise during this trial concerning the admission of
evidence.

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If an objection to a question is sustained,

you must disregard the question and you must not guess what the answer to the question might have been. If an

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exhibit is offered into evidence and an objection to the exhibit is sustained, you must not consider that exhibit as evidence. If testimony is order stricken from the

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record, you must not consider that testimony for any
purpose.

Do not concern yourselves with the reasons

for my rulings on the admission of evidence.

Do not

regard those rulings as any indication from me of the credibility or weight you should give to any evidence that has been admitted. Regarding the credibility of witnesses: In deciding the facts of this case, you should consider

what testimony to accept and what to reject.

You may

accept everything a witness says, part of it, or none of it. In evaluating the testimony you should use the test

for accuracy and truthfulness people use in determining matters of importance in every day life, including such

factors as the witness' ability to see, to hear, or know the things the witness testifies about, the qualify of the witness' memory, the witness' manner while testifying, whether the witness has any motive, bias or

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prejudice, whether the witness is contradicted by

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anything the witness said or wrote before trial, or by other evidence, and the reasonableness of the witness' testimony when considered in the light of the other evidence. Consider all the evidence in light of
reason, common sense and experience.

Regarding any

expert witness, a witness qualified as an expert by education or experience may state opinions on matters in
that witness' field of expertise and may also state reasons for those opinions.

Expert opinion testimony You are

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,

should be judged just as any other testimony.
not bound by it.

You may accept it or reject it in

whole or in part and you should give it as much
credibility and weight as you think it deserves by considering the witness' qualifications and experience, the reasons given for the opinions, and all the other evidence in the case.

At the end of this trial you will have to make your decision based on what you recall of the
evidence.

You will not be given a written transcript of
You should, therefore, pay close

any testimony.

attention to the testimony as it is given. Tomorrow you will be provided with
notepads and pencils.

If you wish, you may take notes

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during the trial.

If you do take notes, please keep

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them to yourself until you and your fellow jurors go to
the jury room to decide the case. Do not let your

note-taking distract you so that you miss hearing or seeing other testimony. When you leave the jury box for

a recess, please leave your notes there in your seats.

Whether you take notes or not, you should rely upon your own memory of what was said and not be overly influenced
by the notes of other jurors. Do not be influenced at all by my taking notes during this trial. What I may be writing down may

have nothing at all to do with what you will be concerned with at this trial.

I am now going to give you what we call the Admonition. It's a set of instructions regarding I'm going to give you some do's

your conduct as jurors.

and some don'ts, but mostly a whole lot of don'ts which we call the admonition. Here it is:

Do not talk to each other

about the case or about anyone who has anything to do
with the case until the end of the trial when you go to the jury to decide on your verdict. appearance of improper conduct. Avoid even the By that, I mean don't

talk with any of the parties, any of the lawyers or

witnesses about anything until the case is over.

until

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then, don't even talk with them about matters that have nothing to do with the case.

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Do not talk to anyone else about the case or about anybody who has anything to do with this case, and do not let them or anyone else talk to you about
these matters until the trial is ended. You may

certainly tell people that, number one, you are on a jury and, number two, what the estimated schedule of the trial is in this case, but do not tell them anything else except to say you cannot talk to them until the case is over.
Please wear your juror badges at all times

around this courthouse so that everyone will know you are on a jury. If someone should try to talk to about If you should

this case, stop them or walk away.

overhear anyone else talking about this case, stop them

or walk away.

If anything like that did happen and you

overheard someone talking about the case, please report it to me or my staff as soon as you can. Do not do any research or make any investigation about this case on your own. Do not view

or visit the locations where the events of the case took place. And finally, do not form an opinion about any fact or about the outcome of this case until you

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have heard and considered all the evidence, the closing

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arguments, and rest of the instructions that I will give
you on the law.

Keep an open mind during this trial.

Form

your opinions only after you have had an opportunity to discuss the case with each other in the jury room at the
end of the trial. Before each recess, I will probably -- in fact, I can very much guarantee that I will not repeat

this admonition that I have just given to you.
probably say something like, please remember the

I will

admonition not to talk about the case with each other. If for some reason prior to a recess or break I forget to remind you about the admonition, please remember the admonition continues to apply at all times.

If at any time during this trial you have any difficulty hearing or seeing anything that you
should be hearing or seeing, please let me know. can raise your hand or know let the bailiff, Manny You

Bustamante, or someone else on my staff know. are in personal distress at any time, any time

If you

whatsoever during this trial, please let us know and raise your hand about it so we can address that personal
distress.

If you have any questions about that the

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locations of the courthouse in terms of restaurants or other facilities, my staff will be happy to answer those questions. Please remember that the admonition not to

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talk about the case does apply to my staff and the attorneys as well.
case with staff.

Please do not try to discuss the If you find it necessary to ask a

question relating to this case, please write out the question on a piece of paper and give it to the bailiff. I will then review the question with the attorneys and decide what response, if any, can be provided. There mayor may not be media coverage of this trial.
to them.

What the news media covers is strictly up

If there is media coverage, you must avoid it If you do encounter something about

during this trial.

this case in the news media during trial, end your exposure to it, immediately and report it to me as soon as you. Members of the Jury, you heard me refer to my -- your numbers being eight plus one alternate.
During the course of this trial and throughout the entire trial, you are all to consider yourselves as Members of the Jury. The reason why we have one

alternate in this case is because, in case someone were to have a personal emergency, it would not be necessary to start the trial allover.

We would be able to

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proceed by having the alternate juror, as we have one right now. However, none. of you know who the alternate

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juror will be because the alternate won't be picked until the end of the trial and the alternate will be
picked by lot, not by the last person chosen or even the middle person chosen. lot. The alternate will be chosen by

For that reason, all of you must consider

yourselves as jurors throughout the entire trial.
Very well.

Tomorrow the attorneys will

begin the case with their opening statements.

Those

opening statements are neither evidence nor argument. They are simply intended as information about what the lawyers believe the trial will involve. And they will

be offered to you for the purpose of trying to help you understand the evidence and follow the evidence as it is presented to you during this trial. After the attorneys have made their opening statements tomorrow, the presentation of evidence will begin with the state going first by presenting their witnesses and evidence. The defense

attorney may then cross-examine those state witnesses. And after the state has presented its case, the
Defendant may, but is not required, to present

witnesses. witnesses.

And if so, the state may cross-examine those At the end of the case, after the close of

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the evidence, the attorneys will make closing arguments
to you.

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After those closing arguments are finished, I

will instruct you on the law and the case will then be
yours to decide.

I'm going to stay here on the bench now to
talk to the attorneys very briefly.

Mr. Bustamante, the

bailiff, will show you where you need to report tomorrow
at 1:30.

It's the jury room.

Please be here shortly

before 1:30 so we can all start at 1:30. have a good evening.

with that,

Please, for my first warning, remember the admonition not to discuss the case with family members or friends. Thank you and have a good evening. (Jury left the courtroom)
THE COURT: All right.

The jury has left

the courtroom.

Counsel and the Defendant, Mr. Smith,

are still present, as is the court reporter. Counsel, what I'd like to do is on the 404(b) motion or issue as to whether or not a letter by Mr. smith is admissible, is have you argue that tomorrow
before 1:30. be?
MS. BOWEN:

How long do you think your arguments will

Probably ten minutes total. .Okay. Mr. Griffith, do you

THE COURT:

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agree with that?
MR. GRIFFITH:

I do, Your Honor, although

I think, perhaps, if Your Honor is familiar with the text of the letter before then, that would save time. have thought that Ms. Bowen was going to put something
in writing.
MS. BOWEN:
MR. GRIFFITI:I:

I

She still is. She still is. Ms. Bowen, would you be able

THE COURT:

to get something to me in writing during the morning?
MS. BOWEN:

Yes, I'm going to do it

tomorrow.

I'll fax one over to Mr. Griffith and provide

one to the Court, based on the character evidence,
witness disclosure, I have, like, three issues that would be addressed in that motion. Specifically, it's

my understanding with character evidence, all evidence regarding a defendant can come in, which would include

prior conviction, awareness of whether or not they were aware of him hiring this victim in this matter, his prior arrest, if any pending matters to show their total
knowledge of the Defendant.
THE COURT:

Okay.

Thank you.

MR. GRIFFITH:

I disagree with that.

But,

so far we don't have anything in writing.
MS. BOWEN:

The other thing, just to give

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forewarning to the Court, I will be asking in a motion in limine to preclude the defense counsel from asking speculation as to why he would do this without motive, because one of the issues is a prior conviction and Judge Jarrett had already ruled on it. He did During that

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administer a drug to another female before.
administer of drug, he molested her.

In this particular
If she

case, the girl does not recall being molested. was, she was completely under the influence of this

drug.

Judge Jarrett indicated we could bring in that

prior information, admini~tration of that drug, but not the information regarding the molest.
concurrent :molest in this case.

There was no

That victim could not

be located. form.

So the information is not available in any

The problem is, to speculate why it was done in

this case, when the information is available through a prior conviction to indicate a motive, I think is
improper since the State won't be allowed to present that evidence.
THE COURT: All right.

You can respond or

you can renew that argument, then you can make a response tomorrow, Mr. Griffith. Speaking of the two witnesses identified as character witnesses -- I forgot their last name. MR. GRIFFITH:
Isaacson.

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Isaacson.

Were you able to

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get ahold of them and find out if they could testify

prior to Thursday?
MR. GRIFFITH: I don't know.

I haven't

had a chance to go back and talk to your JA to find out what the result was, if I got a call back.
THE COURT: All right.

My JA left a few

minutes ago.

You can either check with her in the

morning or have your secretary make a direct call to the
Isaacsons.

She didn't mention it.

She is conscientious

about following up on things.

If she got -- my bet

would be, my secretary would be unable to get to the
Isaacsons.

Check with them in the morning or have your

secretary check with them tomorrow.
MS. BOWEN:

The Defendant's wife and

daughter will be out, if they were character witnesses.
He stated no -- fact witnesses. Are they only fact

witnesses or also to be used as character witnesses? Because I would address that issue, how much to get into
with them as far as other conduct.

The other thing was,

Mr. Griffith has noticed the Defendant's brother as a witness and the Defendant's brother is involved in the other two pending matters, being aware of his brother's requests through the phon~ conversations from jail, asking his brother to elicit persons to commit the

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threats and to commit perjury.

So I want to know how

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much I can get into impeachment on his brother, if he is

going to be testifying to character at all
THE COURT:

What is the name of the

brother? MR. GRIFFITH:

James L. smith.

I don't

know that he's aware of any of this alleged threatening or solicitation of perjury. it.

I haven't asked James about

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I know that the afternoon, though he is listed as a

defense witness, I know the detective called him a couple of times, and either did an investigation or harassed him, depending who you asked.

But I don't know

that he knows about any of the alleged solicitation of perjury. THE COURT: hearing more argument, All right. Well, without

my inclination right now -- you

can certainly try to change my mind.

My mind is not

made up -- if character evidence is introduced by the defense, that under Rule 405(a), a defense witness may
be cross-examined as to specific instances that are

relevant to that character trait or traits.
not the letter -- and I haven't seen the letter.

Whether or I'm

not sure what the letters or contents of the nature is, Ms. Bowen, whether or not the letter serves as a proper basis for Rule 405(a) cross-examination as to character.

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I'm not sure at this point.
the question. MR. GRIFFITH:

May be that doesn't answer

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Well, Your Honor, it may

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be THE COURT:

Just a second.

I'm sorry.

The letter that is the basis for evidentiary issue is not a letter that's involved in the other cause number,
CR95-92343 for influencing witness charge?
MS. BOWEN:

No.

Those were separate They

persons contacted and separate letters written. are not the same letters.
THE COURT: All right.

Do you want to provide me with a copy of the letter this evening, Ms. Bowen? have an extra copy.
MS. BOWEN:

I don't know if you

Actually, there are two

letters, Your Honor.

The only way you can tell there

are two letters, they start out with the person's name,
Dear Randy. he's correct. They continue with a signature. Three letters.
THE COURT: Oh, yeah,

So if I can -

These are the three letters

that you are asking to introduce?
MS. BOWEN:

To elicit from the character

witnesses whether they are -- as to the character witnesses, Your Honor, it would be the scope of how much

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they know about the Defendant and the basis for their opinions regarding his character. If the Defendant

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takes the stand for impeachment, I would use it to show
he had knowledge of guilt in the fact he's willing to

elicit someone to commit perjury for him.

I think it

would be a fair basis to ask the other witnesses, whom

we haven't had a connection, to suspect that that has occurred, to find out whether or not they have been
inquired upon to do that, to commit perjury for the Defendant. It's a good-faith basis to say he has

solicited his friends to commit perjury for him.
THE COURT: All right.

I need to read the I'd like to believe

letter, Mr. Griffith and Ms. Bowen.

this would take ten minutes max but I don't think it will. I need for you to come to my office tomorrow at
I really don't like to keep juries

1:00, please.

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waiting, especially on the first day.

So, come in and

be ready to argue evidentiary issues tomorrow at 1:00 in

my chambers or courtroom, it doesn't matter. MR. GRIFFITH: Since the prosecution has

had a mini argument, I'd like to say it's my argument
you're going to see in the letter as you read it a statement that overcomes the prosecution's argument about knowledge of guilt or consciousness of guilt. In

it, he indicates to the person that the testimony itself

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is trite, he can't find the witness who should be giving it. It's not a consciousness of guilt issue. It's a

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failure to be able to locate a witness to testify to
the THE COURT:

Thank you, Counsel.

I'll see

you tomorrow at 1:00 o'clock. MR. GRIFFITH: ***** Thank you.

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I

, do

hereby certify that the foregoing pages constitute a full, accurate typewritten record of my stenographic notes taken at said time and place, all done to the best of my skill and ability. DATED this

day of

,19

Official Court Reporter

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