Free Response - District Court of Arizona - Arizona

111 TERRY GODDARD

2 (FIRM STATE BARNo. 14000) 3 AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL

ATTORNEY GENERAL

4

II

5 II TELEPHONE: (602) 542-4686 6
RESPONDENTS
II

CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997 (STATE BAR NUMBER 022246) ArrORNEYS FOR

7 8 9

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH, Petitioner,

10 11 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26

CIV 04-573-PHX-FJM (MS)

-vs
DORA B. SCHRIRO, et aI., Respondents.

EXHIBIT H, PART 3, PGS 80-119 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

27 28 Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 1 of 41

80 1 2 THE COURT:

Thank you.

Next person? MS. NIEMANN: nurse, retired.
deceased.

3 4
5

Faith Niemann.

I was a

Three children.

My husband is

I was called on a jury, and yet it was

6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

decided out of court before we even, you know -- we weren't asked any questions or anything else.
it was a car accident.
THE COURT:

I think

Thank you.

Moving to the middle row, close to the wall.
MS. JOSEPH: retired.

My name is Pat Joseph.

I'm

I did work in the banking industry as

assistant vice-president and marketing and was in charge of marketing and sales of student loans.
13 years.

I did that for

I am married.

.I have three children over 18. And he was self-employed as And I have never sat on a jury

My husband is also retired. a real estate appraiser. before.
THE COURT:

Thank you.

Next person? MR. McLOUGHLIN:

My name is Tom I worked for I worked there I am married.

McLoughlin.

Been retired ten years.

American Hospital Supply corporation.
for 34 years as a sales representative.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 2 of 41

81 1

My wife -- we have five children allover the age of 18.

2 3

And my wife was a registered nurse.
retired.

She is also

However, she does volunteer work in Sun City And I

4
5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

as I mentioned earlier, for Alzheimer patients. have never sat on a jury previously.
THE COURT: Next person? MR. KNUTSON: Thank you.

My name is Art Knutson.

Retired from Salt River Project after 29 years, irrigation operations.
three children over 18. Married.

wife is housewife, got

And I have never been on a

jury.
THE COURT: Thank you.

Next person? MR. PELOZA: My name is william Peloza. My employer was AOC in

My occupation was machinist. Milwaukee, Wisconsin. half years.
children.

I was employed there 32 and a Married. No

I was employed as machinist.

My wife is a h9usewife, never worked.

I have

sat on a jury in a civil case.
THE COURT:

Do you remember the outcome of

that civil case? MR. PELOZA: I believe they awarded the It wasn't a tremendous

young man -- I forget how much.

amount of money that they awarded him, amount of money

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 3 of 41

82 1

from the insurance company.
MR. WALDEN: Donald Walden, part-time

2
3

English teacher, Glendale community College, part-time

4 5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

student and part-time freelance writer.

I've work at I'm

Glendale for about a year, teach freshman English. divorced.

I have a daughter who is over 18 years old. The

I was on a criminal trial in San Antonio, Texas. verdict was guilty.

And I was -- I was an alternate on

a trial regarding -- I don't know whether it was criminal or civil because the issue was whether to send a man to a home for the criminally insane, asylum for

the criminally insane. crime.
THE COURT:

I guess he had committed a

On the San Antonio trial, do

you remember what the charge was, nature which the offense? MR. WALDEN: THE COURT:

criminal trial? Yes. It was a drunk driving case.
Thank you.

MR. WALDEN:
THE COURT:

Going to the back row in the corner. MR. ARBUCKLE: Semi-retired. My name is Arthur Arbuckle.

I work part time for Rental City in I'm a mechanic

Scottsdale, been there for nine years. on lawn mowers.
I'm married.

All my children are over

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 4 of 41

83 1

18.

My wife is disabled visually.

She is unable to

2 3

work any longer.

And I have sat on a jury in Phoenix in I never was

1993, civil matter, but I was an alternate.

4
5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

empaneled as -- I never went into the jury room.
THE COURT: much.

All right.

Thank you very

Next person?
MR. SPRAU:

I'm Fred Sprau.

I work for
I

Interpipe Incorporated, build construction vehicles. I've worked there for one year.

I'm a foreman in the

paint department.

I am married, I have one little girl. My wife, she is senior lab
She does

She is three years old.

assistant at Phoenix Baptist Hospital.
phlebotomy type blood work.

I have never sat on a jury.
THE COURT:

Thank you very much.

All

right. Members of the Panel, as Manny Bustamante put away the easel, I have a few more questions. If any

of the answer to the question are answer you prefer to discuss in private, let me know. The next question is whether any of you, a close relative or a close friend of yours has ever been arrested, charged or convicted of any crime other than a minor traffic offense. And again, if anyone would like

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 5 of 41

84 1 2 3 4 5 6
charged.

to give information in private, that could be arranged. Yes, sir? MR. MATUZ:
Ruben Matuz.

I was charged

with DUI about seven years ago.
THE COURT: Okay.

And you said you were

Was there any outcome to that case in terms of

7
8 9
10 11 12 13

a MR. MATUZ: THE COURT:

I was guilty.

All right. Yes.

Mr. Matuz?

MR. MATUZ:
THE COURT:

Anything about that experience

that would affect your ability to sit as fair and impartial juror?
MR. MATUZ: THE COURT:

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

No. Thank you very much.

Anyone else here still in the jury box? Let's start over on this side.
MS. BLODGETT: DUI six years ago. My husband was arrested for And he pled

Sharoll Blodgett.

guilty and lost his license for 90 days.
THE COURT:

All right.

Ms. Blodgett, anything about that experience involving your husband that would affect your ability to sit as fair and impartial juror? MS. BLODGETT: No.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 6 of 41

d
85

1 2 3 4 5 6

THE COURT:

Yes, Ms. Ballard?

MS. BALLARD:

April Ballard.

And I had a

DUI 14 years ago and I was guilty.
THE COURT:

Ms. Ballard, was that here

locally or out of the state?
MS. BALLARD: THE COURT:

Here. And did you have to -- did you

7
8 9
10 11 12 13 14 15 16

lose your driving privilege for some time?
MS. BALLARD:

Yes, um hum.

six months I

think -- or, it was 17 years ago.
THE COURT:

Was there any incarceration

term imposed, do you recall, jail term? MS. BALLARD: Yes. Yeah, because I didn't

want to call my folks and tell them, so THE COURT:

Ms. Ballard, anything about

that experience that you feel would affect your ability to sit as a fair and impartial juror?
MS. BALLARD:
THE COURT:

17 18 19 20 21 22 23 24 25

No, I don't think so.
Thank you.

We will still stay

in the front row, move to the back.
MS. EMMONS:

Jacqueline Emmons.

My

son-in-law is serving an eight-year sentence for drunk driving with an accident.
THE COURT: MS. EMMONS: Document 33-6

Is that here He's in Colorado.
Filed 08/11/2005 Page 7 of 41

Case 2:04-cv-00573-FJM

86 1 THE COURT:

Ms. Emmons, thank you.

Is

2 3

there anything about that experience that would affect

your ability to sit as fair and impartial juror? MS. EMMONS:
THE COURT:

4
5 6 7 8 9 10 11 12
13 14 15 16 17 18 19 20 21 22 23 24 25

No.
.Thank you.

Yes, sir.

Your name? Robert Waddell, I had a DUI
And lost my license for 90

MR. WADDELL:

nine years ago in Alaska.
days.
THE COURT:

Mr. Waddell, anything about

that experience that would affect your ability to sit as

fair and impartial juror? MR. WADDELL:
THE COURT: of the aisle first. No.

Moving to the back, that side

No one in the front row?

Yes?
MS. CARTWRIGHT: DUI. Kris Cartwright. My brother-in-law had a

And, no, that would not affect my ability.
THE COURT:

Ms. Cartwright, about how long

ago was that? MS. CARTWRIGHT:
THE COURT:

Five years ago.

Thank you.

You answered my

question so I won't repeat it.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 8 of 41

87 1

No one else in the front row? Moving to the middle row. MR. MAX OWENS: Yes, Mr. Owens.

2 3

Max Owens, DUI when I was That was it. Anything about

4
5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

about 22 years old, California, fine.
THE COURT: Thank you.

that experience, Mr. Owens, that would affect your ability to be a fair and impartial juror?
MR. MAX OWENS: THE COURT: No.

Anyone else in the middle row?

If not, in the back row?
MS. YORK:

Mary York.

I got a ticket for

open container of alcohol in public and second, a little

embarrassing, but I can say, and public urination.
THE COURT:

Okay.

Thank you, Ms. York.

Anything about those experiences that would affect your ability to be a fair and impartial juror?
MS. YORK:

I mean, I do have some, I have
It was a

some type of stereotypes towards officers.

young age and it impacted my view.
THE COURT:

If I advised you to keep an

open mind, listen to all the evidence and not reach a

decision until you were in the jury room with your fellow jurors by applying the law, the instructions on the law to the evidence, you believe you could do that?
MS. YORK: Yes, I do.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 9 of 41

88 1

THE COURT:

.AII right.

Thank you.

2 3 4 5 6 7 8
9 10 11 12 13 14 15 16

Anyone else on that side of the aisle before we move over to this side?
All right.

Anyone on this side who had raised their hand? Yes, sir, your name?
MR. ARBUCKLE:

Arthur Arbuckle.

My son,

about 20 years ago, drove off without paying for gasoline and picked up in Oklahoma and then couple of

years later, him and another attendant at a gas station where, they were working, turned in a false robbery report. Charges were dropped both times because we paid

fines and paid back the money that had been taken.
THE COURT:

Thank you, Mr. Arbuckle.

Anything about that experience that would affect your ability to sit as a fair and impartial juror? MR. ARBUCKLE:
THE COURT:
!

17 18 19 20 21 22 23 24 25

No.

Let me ask this question,

Members of the Panel, have you, a close relative or friend of yours ever been' the victim of a crime, any kind of crime?
MR. KELLY OWENS: tell you by myself.
THE COURT:

Kelly Owens.

I'd rather

Thank you very much.

We will

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 10 of 41

89

1 2 3 4 5 6 7
8

arrange for that in a little while.
Anyone else? MS. STRAIN:

Ms. strain? Just robbery, burglary,

twice, 1980's, and then in the early '90's.
THE COURT:

Okay.

Would that -- was that

your residence that was burglarized?
MS. STRAIN:
THE COURT:

Yes. Ms. Strain, would those

9
10 11 12 13 14 15 16

experiences affect your ability to be a fair and
impartial juror? MS. STRAIN:
THE COURT:

No. I believe you, Mr. Waddell,

had raised your hand. MR. WADDELL:

Yes.

Robbery in California, And I had a friend

in the mid 80's, of my apartment.

killed by drunk driver in California.
THE COURT:

17 18 19 20 21 22 23 24 25

How long ago was theThat was in '90, I believe. The loss of your friend? Yes.

MR. WADDELL: THE COURT:

MR. WADDELL:
THE COURT:

Would those experiences affect

your ability to be a fair and impartial juror? MR. WADDELL:
THE COURT:

No.

"Thank you, Mr. Waddell. Let's stay over

still in the back row.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 11 of 41

90 1

there with Mr. Cota.
MR. COTA:

2 3 4 5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Yes, sir, Your Honor.

I just

recalled from the last question that I did receive a

citation 10, 11 years ago for minor in possession of
alcohol, and I did plead guilty to that.
THE COURT:

All right.

Thank you.

Would

that affect your ability to be -- to sit as a fair and impartial juror?
MR. COTA: THE COURT:

No, sir.

still in the back row with

Mr. Hawes?
MR. HAWES:

Yes, my in-laws were involved

in a bad car accident with a drunk driver.
THE COURT:

Was there any outcome in the

criminal justice system to that? MR. HAWES: THE COURT: No, no. 'Mr. Hawes, is there anything

about that experience with your in-laws that would affect your ability to serve as a fair and impartial juror?
MR. HAWES: THE COURT: No, sir.

Moving to the front. Sharoll Blodgett. My house

MS. BLODGETT:

was burglarized twice in the 1970's.
THE COURT:

All right.

Ms. Blodgett,

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 12 of 41

91 1

would that affect your ability to sit as a fair and impartial juror? MS. BLODGETT:
THE COURT:

2 3

No.

4
5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anyone else?

still in the jury box.
MR. MEINTS:

I have had a house

burglarizes twice, once in the '70's, once in the '90's.
I have had a house -- truck stolen twice.
THE COURT:

Mr. Meints?

MR. MEINTS:. Yes.
THE COURT:

Would those experiences affect

your ability to sit as a fair and impartial juror?
MR. MEINTS: THE COURT:

No.

Anyone else in the box? Mr. Stratman? My back

Moving to the back.

MR. STRATMAN:

Wendell Stratman.

fence, hit and run by a vehicle, apprehended the
individual, waited for the police, went to trial. was found guilty. Would not affect my judgment. He

THE COURT: .How long ago was this,

Mr. Stratman? MR. STRATMAN:
THE COURT:

Just this year.

Thank you.

Anyone else in the front row?
MS. RIBAR:

Pamela Ribar.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 13 of 41

92 1 THE COURT:

We will go with you first.
I have a cousin who was killed

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. RIBAR:

buy a drunk driver approximately 17 years ago.
THE COURT:

And Ms. Ribar, would that

affect your ability to sit as a fair and impartial juror?
MS. RIBAR: THE COURT:

No. Would it be Ms. Person, Donna Person. Person. Thank you.

MS. PERSON:
THE COURT:

MS. PERSON:

My car was broken into about Wouldn't

three years ago and the telephone stolen.
affect me. THE COURT:

It would not affect your

ability to be a fair and impartial juror? MS. PERSON:
THE COURT:

No. Thank you very much.

Yes, still in the middle row with Mr. Owens. MR. MAX OWENS:
Max Owens.

pickup stolen

within the last year, returned undamaged a week later.
THE COURT:

No No.

MR. MAX OWENS:
THE COURT:

No proceedings in the criminal

court system?

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 14 of 41

93 1

MR. MAX OWENS:
THE COURT:

No.

2 3 4 5 6 7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Mr. Owens, would that affect

your ability to be a fair and impartial juror?
MR. MAX OWENS:
THE COURT:

No.

still in the middle row.
Ron Riggiero. My business

MR. RIGGIERO:

has been burglarized probably six times in the past 20 something years.
THE COURT:

Have any of those of

burglaries resulted in a criminal prosecution?
MR. RIGGIERO:
THE COURT:

None.

Mr. Riggiero, would those

experiences affect your ability to sit as a fair and impartial juror?
MR. RIGGIERO:
THE COURT:

Yes, possibly it would. You believe you could not

listen to the evidence, keep an open mind, apply the law that I would instruct you on once you were in the jury room with your fellow jurors and reach a decision based on that process? MR. RIGGIERO: an open mind about it.
THE COURT:

I might not be able to keep

Do you believe that you would

be favoring the State's side or the Defendant's side? MR. RIGGIERO: No, probably favoring the

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 15 of 41

94 1

opposite.
THE COURT:

2 3

All right.

Mr. Riggiero, after I gave you the last question about the process a jury needs to go through prior to reaching a decision, your answer to me, you do not believe you could keep an open mind; is that
correct? MR. RIGGIERO:
THE COURT:

4
5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Um hum.
All right.

Yes?

MR. RIGGIERO:
THE COURT:

Yes.

Would counsel please approach?

(Side-Bar Conference, off the Record)
THE COURT: All right.

Mr. Riggiero, I
I'm

want to thank you for the information you provided. going to go ahead and excuse you from service in this particular case. Please still report to the Jury

commissioner Office because you may be needed for service on another case. All right.

Thank you very much.
Members of the Panel, we are

still on the question of whether you or a close relative or friend has ever been a victim of a crime, any kind of crime. Anyone in the middle row who I missed? Back, moving back to the front row. Mr

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 16 of 41

95
1 MR. HOM: THE COURT: MR. HOM: THE COURT: MR. HOM:

Hom. Hom? Yes.
"Go ahead, please.

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

My parents, in the 60's, they They were burglarized twice but

owned a grocery store.

the people who did it were never found.
THE COURT:

Okay, Mr. Hom, would anything

about those experiences involving your parents affect

your ability to sit as a fair and impartial juror?
MR. HOM: THE COURT:

No.
Thank you.

Moving to the back row on that side of the aisle, anyone who Yes, ma'am, your name?
MS. SMITH:

I was the registered nurse on

an ambulance run and a driver, education teacher ran a red light and I was hurt in the accident.
THE COURT: MS. SMITH: THE COURT:

All right. No.

It is Ms. Person.

smith.

Ms. Smith, pardon me.

Would that affect your ability to be a

fair and impartial juror?
MS. SMITH:
THE COURT:

No. Was there any criminal justice

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 17 of 41

96 1

outcome to that case? MS. SMITH:
THE COURT:

2 3 4 5 6

No.

His insurance paid.

All right, thank you. Anyone

Moving to this side of the aisle. who had raised their hand earlier?

Starting with the front row, with you. MS. SCHLACHTER: Sigrid Schlachter. My

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

in-laws owned a video store which I operated for several years. We were burglarized during business hours. Never found out who it

Money was taken out of the safe. was.
THE COURT:

Would that experience affect

your ability to sit as a fair and impartial juror? MS. SCHLACHTER: affect my decisions.
THE COURT: Next to Ms. "-

I don't think it will

Thank you, Ms. Schlachter.

MS. ATCHINSON:

Sally Atchinson.

Had my I

home burglarized twice, once in Michigan, once here. don't think it would affect my ability to serve.
THE COURT: Next person? MS. PFINGSTON: Seba Pfingston. Thank you, Ms. Atchinson.

Our car

was broken into last year, Albuquerque, New Mexico, and some items taken.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 18 of 41

97 1 THE COURT:

Would that affect your ability

2 3 4 5 6

to sit as a fair and impartial juror?
MS. PFINGSTON:
MR. SMITH: THE COURT:

No, it would not.

Richard smith. Mr. smith? My home was burglarized

MR. SMITH:

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

several times, and a car stolen one year ago.
THE COURT:

Was there any criminal outcome

to that case?
MR. SMITH:

.On the first one there was a The car

conviction, the people doing the burglarizing. was recently recovered.
THE COURT:

Would not affect your ability

to sit as a fair juror?
MR. SMITH: THE COURT:

Huh-uh. No, thank you.

Mr. Wilson? MR. WILSON: I also had a car stolen about

three years ago and totaled, and it wouldn't affect my
ability. THE COURT:

Mr. Wilson, was there any

criminal justice outcome to that case? MR. WILSON:
THE COURT:

No, not that I am aware. Next to Mr. Wilson? Faith Niemann.

MS. NIEMANN:

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 19 of 41

98 1 THE COURT:

Ms. Niemann?
My 11 year old son took our

2 3 4
5 6

MS. NIEMANN:

Jeep and tried to drive it and ran into somebody's wall,
so we had to take him to court and the judge was very

understanding.

We really didn't have any problem

regarding it, so it really wouldn't affect me at all except in the positive.
THE COURT:

7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

All right.

Thank you.

Anybody else in the middle row?
Your name again, please?
MR. WALDEN: Dan Walden.

My parents' Nobody

house, a drive by shooting.

Nobody was home.

was hurt.

Some damage was done.

There have been a I

couple of break-ins to my car and stuff like that.

don't think it will affect my ability to be impartial.
THE COURT:

Thank you, Mr. Walden.

Were

there any criminal court outcomes to those cases?
MR. WALDEN: THE COURT:

No, there were not. Your answer, you didn't think

they would affect your ability to be a fair juror?
MR. WALDEN: THE COURT: MR. KNUTSON:

That's correct. Anyone else in the middle row? Art Knutson. My son's house

was cleaned out.

Then couple of months later his

vehicle got cleaned out.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 20 of 41

99 1 2 3

THE COURT:

There was any outcome to those

cases? MR. KNUTSON: No. They just found part of Four years ago that it

4 5 6
7

it here three, four weeks ago.
happened.
THE COURT:

.Mr. Knutson, would those

experiences affect your ability to be a fair and

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

impartial juror? MR. KNUTSON:
THE COURT:
I don't

think it would. Anyone in the

Thank you.

middle row? If not, moving to the back in the corner.
MR. ARBUCKLE: Arthur Arbuckle. In the

early 60's I had this storage room broken into, about a thousand dollars worth of tools, miscellaneous items stolen, never recovered.

-Then in the late '80's the I lost about

place that I work at was burglarized.
$4,000 worth of tools. Phoenix Police.

They were recovered by the

I don't know whether -- what the

outcome was on it.

I have never heard. All right. That would not make any

THE COURT:

MR. ARBUCKLE:

difference about my ability to serve as a juror.
THE COURT: Thank you.

Anyone else who perhaps hearing someone

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 21 of 41

100 1

else now recalls they have a yes answer? Your name, ma'am? MS. BLODGETT: Sharoll Blodgett. My

2 3

4
5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

daughter was hit by car 17 years ago.

The lady who hit

her, I believe, had to serve some jail time, some community service, although I did not ever appear in the courtroom during that time.
THE COURT:

Thank you, Ms. Blodgett.

Would that affect your ab~lity to be a fair and impartial juror? Ms. Cartwright?
THE COURT:

Yes, Ms. Cartwright.
My car was broken into

MS. CARTWRIGHT:

several times, car phone, sales book were taken.

Former

client's home was broken into, stabbed seven times. Perpetrator was never found. I don't believe that would

affect my ability to be a fair juror. MR. VENNEBERG: Gerald Venneberg. The

business I work at, burglarized in the last year, though nothing of mine was affected. My roommate had his car It was

stolen on Christmas Day a few years ago.
returned.

And many years ago when I was a manager of a

restaurant, late 70's, I was subjected to an armed
robbery.

Nobody was caught.

None of these should have

any effect.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 22 of 41

101 1 THE COURT:

On your ability to serve? On my ability. Thank you,

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. VENNEBERG:
THE COURT:

All right.

Mr. Venneberg.
Anyone else?
THE COURT:

All right.

Members of the

Panel, I am truly just about finished with the
questions.

I do want to ask this, sometimes at the end

of questioning, people or Members of the Panel remember questions
earlier.

--

answers to questions that were asked

Is there anyone who now recalls that he had -

they had a yes response, yes answer, to any of the prior questions?
All right.

We'll start in the jury box.

Yes?
MR. COTA:

Michael Cota.

I have to serve

as a witness on behalf of the state tomorrow at a civil court case.
THE COURT:

Is that in the morning or in

the afternoon?
MR. COTA: THE COURT:

It's in the morning, sir. Mr. Cota, do you believe if

you were picked you would be able to be back by 1:30?
MR. COTA: THE COURT: Yes, sir.

All right.

Thank you for that

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 23 of 41

102

1 2 3 4 5 6 7
8

information.

Was it Mr. Hom?
MR. HaM:

Yes.

Can you repeat the

question about defendant who refuses -- or chooses not

to testify against himself?
THE COURT:

All right.

Members of the Panel, together with the legal principles that a defendant is presumed by law to be innocent and that the state has the burden of proving a defendant guilty beyond a reasonable doubt and that

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

the defendant is not required to prove innocence or to produce any evidence, there is additional legal principle that states that a Defendant in a criminal
case has a right to not testify at trial. The exercise

of that right cannot be considered by the jury in determining guilt or innocence. My question was:
Is there anyone who does

not understand those principles of law as I have just stated?

The next question was:

Is there anyone who

does not agree with those legal principles or who does not think they should be the law?
Mr. Hom, would those questions and those

legal principles have resulted in a yes answer by you?
MR. HaM:

Well, I tend to, when a

defendant chooses not to testify, I often tend to feel

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 24 of 41

103 1

that he's trying to hide something. THE COURT: All right.

2 3 4 5 6 7 8 9
10 11 12 13
.

Mr. Horn, do you believe you would hold

that against the Defendant, given the legal principle that defendant does not have to present evidence and
that the defendant does not to have testify, if he or she chooses not to, do you think you would hold that against the Defendant?
MR. HOM: THE COURT: I believe so.

All right.

Mr. Hom, I want to I

thank you for your candor and the responses you gave. will go ahead and excuse you now from this case.

Please

report back to the Jury Commissioner Office in case you're needed in another case.
Thank you.

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

Anyone else who believes they had a yes response to a prior question? Members of the Panel, is there anything on your minds now that you are wondering about, as to

whether or not you should tell me or the attorneys, about what is on your mind? There is really no better
And, again, if there

time to raise your hand than now.

is something you'd like to provide in private, we will be breaking in just a minute or two, to have Mr. Owens provide us with information in private.
Let me see, did someone raise their hand?

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 25 of 41

104 1

All right.
THE COURT:

2 3

All right.

Members -

Mr. Venneberg, thank you. MR. VENNEBERG: In about 1971 I was judged

4
5 6

liable in civil suit where somebody actually ran into me. I was judged liable. I don't see how that could

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

affect anything.
THE COURT:

It would not affect your Thank you,

ability to be a fair and impartial juror. Mr. Venneberg. MR. VENNEBERG:
THE COURT:

No .

Thank you, Mr. Venneberg.

Anything else about you as potential jurors you believe the attorneys or I should know about you before you are selected or before the jurors are selected to sit on this case?
All right.

Would counsel please approach?

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

I have had at previous

conferences with the attorneys at side bar, Members of the Panel, let me ask this: Is there anyone on the

panel who for personal or other reasons, be they ethical

or other reasons, who is opposed to the consumption of alcohol?
Let's see.

Mr. Cota?

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 26 of 41

105 1 MR. COTA: THE COURT:

Yes, sir.

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And Mr. Hawes? Um hum. And Kevin Barker? Scott Bridwell.

MR. HAWES:
THE COURT:

MR. BRIDWELL:
THE COURT:

Thank you, anyone else? Ms. Emmons? To the degree that my

Yes, ma'am. MS. EMMONS:

son-in-law is in prison for that, yes.
THE COURT:

If there -- given those views,

are there any individuals among those what had raised their hands who believe that view of being opposed to the consumption of alcohol would prevent them from serving as fair and impartial jurors?
MR. COTA:

If I can elaborate on my

answer.
alcohol. driving.

I'm opposed -- not opposed to consumption of I'm opposed to consumption of alcohol while

THE COURT:

Thank you.

I see a few people raising their hands or nodding their heads.
THE COURT:

Ms. Schlachter? I'm not opposed to

MS. SCHLACHTER:

consumption of alcohol, but I'm alcoholic in recovery.
THE COURT: Thank you.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 27 of 41

106 1

MR. BARKER:

Kevin Barker.

I guess my

2 3

opposition would be to the extent somebody is willingly drinks alcohol, knowing that it can affect their thinking and their actions and some other things.
THE COURT: you.

4
5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

All right, Mr. Barker, thank

Mr. -- we'll stay with Mr. Hawes.
MR. HAWES: again? I'm sorry.

'What was the question on that
What I'm saying,

My memory -- no.

I'm a recovering alcoholic, so it's not -- it's not -- I

don't mind other people drinking, it's just I can't drink, so that's THE COURT:

Thank you.

The question was:

Given your views, be they personal or ethical or other grounds for being opposed to the consumption of alcohol, do you believe that would affect your ability to be a fair and impartial juror?
MR. HAWES: THE COURT:

No.

Mr. Cosgrove?
I'd like to think that I

MR. COSGROVE: could be fair and impartial.

I think I can, but I must

tell you that a chief of the Mesa police who was hit by a MR. GRIFFITH: object. Your Honor, I'm going to

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 28 of 41

107 1

THE COURT:

'Mr. Cosgrove, let me hold off

2 3

for a second.

There may be a local -- there is a

obviously a local incident here that's very strong in your mind and memory. And I appreciate that. Right

4
5 6

now, for the purpose of responding to my question without further elaboration, can you say yes or no, do you have a view that's, are you personally opposed or on other grounds, opposed on to consumption of alcohol?
MR. COSGROVE: consumption of it.

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I'm not opposed to

I drink a beer myself once in a

while.

But I was deeply disturbed by the result of that

terrible accident.
THE COURT:

Thank you, Mr. Cosgrove.

Mr. Owens, were you standing to stretch?
MR. OWENS: THE COURT:

You've got it.

We are going to stand and

stretch in just a couple of famous more minutes here. Let me ask this question also, which I need to ask. There were people on the panel who very

candidly gave us their information about background in the pharmaceutical or medical fields.
Of those people

who have worked in or continue to work in the pharmaceutical medical field, are you familiar with the
drug called Halcion, which is the drug that is part of

the charge in this case?

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 29 of 41

108 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
i

Mr. smith. their hand? Mr. -

And anyone who else raised

MR. McLOUGHLIN:
THE COURT:

McLoughlin.

.Okay.

I'm sorry.

I didn't

hear the name of McLoughlin. Mr. McLoughlin. is familiar with the Anyone else who drug Halcion? MR. STRATMAN: Wendell Stratman.
THE COURT:

If you just give us your name

when I point to your hand.
MS. STRAIN:
THE COURT:

Sheila strain.
And Donna Person. .Adeline smith.

MS. PERSON: MS. SMITH:
THE COURT:

Anyone else who is familiar

with the drug Halcion?
All right.

I believe everyone has raised

their hand.
Thank you.

Counsel, is there any more need to approach at this time? MR. GRIFFITH:
THE COURT:

No, Your Honor.

All right.

We are going to -- would counsel approach hopefully one last time, please?

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 30 of 41

109 1

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

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

All right.

Members of the

Panel, we are going to take a very short five-minute break now, at least enough time for you to stretch your
legs, use the restroom.

Please be ready to try to start

back in five minutes. When you come back into the courtroom, it
won't be for a long extended period of time. I need you

to come back in a couple of minutes into the courtroom before we take the break in which the attorneys engage

in the selection process. So with that, so with that, try to keep this break to five minutes. When you come back, have

the same seats and sections of the bench where you're seated.
Please remember -- or, please remember this:

Do not talk about the case with each other, and do not let anyone else talk with-you about the case. see you back in five minutes. And Mr. Owens, if you will meet with me and the attorneys, my office is just on the other side of this hallway in the back. my office.
Thank you. (IN CHAMBERS) THE COURT:

We will

We will meet with you in

We are in here in my office,

two attorneys, the court reporter, and you Mr. Owens.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 31 of 41

110 1

Thank you for your willingness to give us information in
private.

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. GRIFFITH:
interrupt.

Your Honor, I hate to

Just for the record, I have spoke within He has waived

Mr. smith about his right to be present.
his right to be present. THE COURT: welcome to go ahead.
MR. OWENS:

Thank you.

Mr. Owens, you're

You had asked the one

question, I don't know if. I can rephrase it, ever before ever been a victim of crime and committed a crime.
was charged with justifiable homicide that involved with my father when I was high school. of child abuse growing up. I was a victim

I

And I have been burglarized

on numerous occasions involving cars and my home has been broken into as well.
THE COURT:

Thank you, Mr. Owens. I think that may affect my

MR. OWENS: judgment.
It's possible. THE COURT:

.Okay.

When you say -- are you

referring to being victimized by car thefts or burglaries in the past, or the other?
MR. OWENS:

I mean, it hurt a lot when my
I actually caught the person

house was burglarized.

that did it on my own, but I obviously have somewhat of

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 32 of 41

111 1 2 3 4 5 6 7 8 9
10 11 12 13

an opinion on things like that.
THE COURT:

Okay.

MR. OWENS:

And the other thing I wanted

to bring to light is I'm an expert in behavioral analysis, that's what I'm trained to do in my job. When

I tend to look at people as they are talking and stuff, I determine whether they are being deceitful or truthful, based off of their body language.
THE COURT:

okay.

That you have specialized training in
that -- let me back up for a minute. As to this

justifiable homicide experience that you had with your
father, you said you were. charged.

Did that charge go

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

to MR. OWENS:

It never went to a court case.

I don't understand the legal system that much. thrown out of a court case. I guess it was a

It was

preliminary hearing possibly, something like that. judge reviewed it and reviewed it with the State and they determined that it was justifiable, homicide.
THE COURT:

A

I see.

As to the more recent

incident that someone who had burglarized you, did that result in the prosecution. by the State?
MR. OWENS: Yes, it did.

It involved All three people

three people, and it involved drugs.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 33 of 41

112 1

were basically drug addicts trying to supply their drug habit. Didn't recover all of my -- all of my missing

2 3

merchandise, but the insurance did pay for what I didn't
get back. THE COURT: outcome to the case? MR. OWENS:
as of yet.

4
5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

There was a criminal plea or

That case is still unsettled

THE COURT:

I see.

Thank you.

You did

say that you did not -- that would influence or affect

your ability to sit as a juror?
MR. OWENS:

Yeah.

I think if it's

something related to that where somebody has lost

something personally, it may affect my judgment.
the -- only in the sense I would probably read what -

And in

especially if they testify, I will -- I will try to read
, their body language out of habit, not out of trying to

read it, but that's just what I do.
THE COURT:

Everybody, either consciously

through training such as you've received, or subconsciously, because they haven't had that training, sizes up a person one way or the other. You believe

your specialized training in body language would affect your ability to be a fair and impartial juror, because I'll be giving the jury an instruction they are to

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 34 of 41

113 1

decide the case based on what they see, hear and gather

2 3

based on their common sense experiences of a person. Would that necessarily exclude whatever feedback you take in from a witness, be it a state or defense
witness.

4 5
6 7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So, if you are saying you feel you should ask

to be disqualified because you have training in body
language, I appreciate that that in and of itself MR. OWENS:

I'm not sure asking to be I

disqualified.

I wanted you to be aware of that.

don't know if that matters or not.
THE COURT: MR. OWENS: All right.

Thank you.

I just wanted to tell you.

I

didn't want to tell all those people.
THE COURT:

Sure.

Any questions of Mr. Owens?
MS. BOWEN:

Not from the State. Yes, sir.

MR. GRIFFITH:

You were abused as child and as a result

of that you engaged in justified homicide; is that right?
MR. OWENS:

No.

There was a incident It involved

that, it occurred when I was 18 years old.

spousal abuse against my mother and that thing escalated, and -- into what turned out into justifiable homicide.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 35 of 41

114 1

MR. GRIFFITH:

What you feel would

2 3

interfere with your ability to be fair and impartial?
MR. OWENS: Yeah.

I think it would have

4
5 6

some sort of effect on me.

Just, you had mentioned

earlier on this somebody had ingested into somebody else this particular drug, which I have no idea what it is, but that in sense as I took it as attempted murder.
If

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

-- depending on the nature of this drug, what have

you, and the effects of the it. MR. GRIFFITH: Thank you, sir. I don't

have any other questions, Your Honor.
THE COURT:

All right.

So, you believe that the nature of the
charge, administration of a dangerous drug called Halcion would affect your ability to sit as a fair and

impartial juror?
MR. OWENS:

Yeah.

Because I have formed

an opinion on what I heard already, but THE COURT:

Mr. Owens, I want

All right.

to thank you for your candor and your information you provided. case. I'm going to excuse you from service in this

And even though it's 20 to 5:00, please go back

to the Jury Commissioner Office, let them know you have been excused. I think there might be no one there. If

there is no one there, you need not worry.

Please check

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 36 of 41

115 1

back in there. You can go back down this hallway. I

2 3 4 5 6

think there is an exit hanging from the ceiling, take a
right. You'll go out to the main hallway.
MR. OWENS: THE COURT: Thank you.

Thank you, Mr. Owens.

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

All right.
MS. BOWEN:

Either end up the main hallway

or up to a stairwell.
THE COURT:

One of the two. Both court reporter I asked you
I asked you if

Mr. Owens is gone.

and counsel, and court reporter are here.
if further questions needed to be asked. you pass the Panel for cause.

You, Ms. Bowen, said

yes -- or, based on the cannot, of course, of what

Mr. Owens would respond.

You, Mr. Griffith, said no.

And you had an objection to passing the panel given one or more members.
Go ahead.

MR. GRIFFITH:

Yes, thank you, Your Honor. I believe he's

I'm objecting to Mr. Cota. number 7. He's a police officer.

In the future he will

undoubtedly have to serve with members of the Sheriff's Department. in hand. DPS and the Sheriff Department works hand

He's probably worked hand and hand with the

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 37 of 41

116 1

Sheriff's Department on other sheriff's matters.
don't believe he can be an appropriate juror.
No

I

2
3
4

question, he's answered all the questions appropriate,
no question about that.

I don't dispute that.

But the

5 6 7 8
9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

case law is and common sense is we are not bound by
their answers if it's obvious they can't be fair and
impartial.

They can be stricken.

I'm asking you strike

him.
THE COURT:

Not being rhetorical, but are

you saying all peace officers may work with the County Sheriff's deputies or investigators in the future should automatically be excused from jury duty? MR. GRIFFITH:
THE COURT: MS. BOWEN: Batson right there. people based on

Yes.

Ms. Bowen? I believe that is prima facie
He has distinguished a group of

identifiable characteristic.

He's

trying to exclude them based on that without any other

words.

Nothing else this person said indicated he would He's saying a

be not be fair or impartial to anyone.

police officer, all police officers should be excluded.

I think that's a prima facie of Batson.
THE COURT:

Well, there was a case

involving obesity, I think went up to the Supreme Court, that obesity was not a protected group or class. I'm

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 38 of 41

117 1

not sure being a peace officer is protected class for the purposes of a Batson challenge or issue. But at

2 3

this time, at this point in time, based on what Mr. Cota has said and orally and taking into account your view, despite his oral responses, Mr. Griffith Mr. Cota, a DPS police officer, should be struck for cause, your request, an objection to him is overruled.
MR. GRIFFITH: Panel.
THE COURT:

4
5 6

7
8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
,

otherwise, I do pass the

Then your objection to Thank you.

Mr. Cot a is noted on the record.

I want --

if we have to keep them past
We can't

5:00, obviously I want to keep them past 5:00. have the entire Panel come back tomorrow.

How much time

do you think you'll need to exercise your strikes, Counsel?
MS. BOWEN:

I have mine already taken out.

It should take five minutes. MR. GRIFFITH:
THE COURT:

Five minutes sounds right.
I'll err on the safe side and

tell the Panel ten minutes or so. back out.

Thank you.

Let's go

Hopefully they are ready to come back into I'll tell them all -- them all they have

the courtroom.

passed for cause and not to take it too hard if they are not picked.
All right.

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 39 of 41

118 1 Thank you. (IN COURT)

2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT:

All right.

the Record will

show the presence of the Panel, the Defendant, Mr. Smith, the two attorneys and the court reporter and
court staff.

During the short recess, Mr. Owens was excused as a member of this Panel. with that, let me go ahead and ask,
subject to the discussion we had in chambers, does the State pass the Panel for cause?
MS. BOWEN:

The State passes the Panel,

Your Honor.
THE COURT:

Mr. Griffith?
Yes, Your Honor. Defense

MR. GRIFFITH: passes the panel.
THE COURT:

Thank you, Counsel.

Members of the Panel, both attorneys have passed you as Members of this Panel. Now, that means

that you all have been found to be fair and impartial individuals who could be or may be selected as jurors in this case. Only nine of you, eight plus one alternate

can actually be selected to be on this jury.

What we are going to do now is take one final break for a very few minutes. I am told it would

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 40 of 41

119 1

be about ten minutes, which would take us probably right
up to 5:00 o'clock.

2 3 4 5 6

If I have to, I will ask your

indulgence in keeping you maybe few minutes past 5:00. The alternative is having you all come back tomorrow. I'm sure those people who will end up not being picked on the jury would rather not come back tomorrow if they don't have to. If you are not picked for the jury when

7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you come back, please do not be too disappointed. Again, all of have been found to be fair and impartial persons who can and will be able to sit on this jury.

During the next few minutes, please do not discuss the case with each other or anyone else. let anyone else talk to you about the case. with that, we will take a recess for ten minutes, and start back in ten minutes. When you come Do not

back, it will be somewhat crowded, but please try to have a seat in the back or even stand in the middle aisle because you'll be called to have a seat. Anyone

who is picked to be on the jury will be called forward to have a seat here in the jury box. and sit in the jury box. with that, thank you. about ten minutes.
(Recess taken.) THE COURT: All right.

Do not come back

We'll see you in

Everyone, please

Case 2:04-cv-00573-FJM

Document 33-6

Filed 08/11/2005

Page 41 of 41