Free Response - District Court of Arizona - Arizona

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1 II TERRY GODDARD
ATIORNEY GENERAL

2 (FIRM STATE BARNo. 14000) 3 AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL CRlMINALAPPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIzONA 85007-2997 (STATE BAR NUMBER 022246)

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II

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

ATIORNEYS

FOR

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-VS

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

CIV 04-573-PHX-FJM (MS)

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DORA B. SCHRIRO, et aI.,

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Respondents.

EXHIBITS E-G FOR ANSWER TO PETITION 17 18 19 20 21 22 23 24 25 26 27
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FOR WRIT OF HABEAS CORPUS EXHIBIT E Reporter's Transcript, 11/22/04 EXHIBIT F Reporter's Transcript, 4/18/95 EXHIBIT G Reporter's Transcript, 9/25/95

EXHIBIT E

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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

STATE OF ARIZONA,

)

)

Plaintiff, ) )
vs. CR 94-92467

)
WILLIAM FLOYD SMITH, 1CA CR 96-0231

) ) ) Defendant. ) ---------)
REPORTER'S TRANSCRIPT OF PROCEEDINGS PREPARED FOR APPEAL

(Firm Trial Setting)

BEFORE:

THE HONORABLE BARBARA M. JARRETT

Phoenix, Arizona November 22, 1994

PREPARED FOR: ATTORNEY GENERAL

Case 2:04-cv-00573-FJM

(Copy)

Document 33-3

Reported by: DONNA JOHNSON, RMR Official Court Reporter 201 West Jefferson Suite 6B Phoenix, Arizona 85003 (602) 506-1651
Filed 08/11/2005

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The foregoing proceedings were held on November 22, 1994, before the Honorable Barbara M. Jarrett, Judge of the Superior Court of the State of Arizona, Maricopa County, 101 West Jefferson, Courtroom 912, Phoenix, Arizona.

APPEARANCES: For the State of Arizona: MARICOPA COUNTY ATTORNEY By: Mr. William T. Winter Deputy County Attorney For the Defendant: MARICOPA COUNTY PUBLIC DEFENDER By: Mr. Raymond Vaca, Jr. Deputy Public Defender and MR. GREGG H. GRIFFITH Attorney at Law (Appearing telephonically)

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Phoenix, Arizona A.M. Calendar (The following proceedings were held in open court:)

THE COURT:

Show this is CR 94-92467,

State vs. William Floyd Smith. Is the State ready? MR. WINTER:
Winter on behalf of the State. MR. VACA: Raymond Vaca, Jr. on behalf

Yes, Your Honor.

Bill

of Mr. Gregg Griffith for Mr. Smith who's present. THE COURT: setting in this matter. And this is the trial

What's the status of the case, counsel? MR. WINTER: Judge, I believe it's the State has no

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defendant's Motion to Continue. objection. THE COURT: Okay.

And are you asking

for another 30 days, Mr. Vaca?
MR. VACA: THE COURT: Yes, Your Honor.

Mr. Smith, any objection to

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the request for a continuance, sir?
THE DEFENDANT:

No, ma'am.

THE COURT: Show the defendant has 25 Case 2:04-cv-00573-FJM Document 33-3 Filed 08/11/2005 Page 6 of 53

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waived time.

The Court does find extra-ordinary

circumstances, ordered vacating today's trial setting and resetting this matter for nonfirm trial setting on Tuesday, December 20th. And that will be at 9:00. Judge, I'm sorry, one

MR. WINTER: second, please.

(Brief pause.) MR. WINTER: Judge, I'm sorry, my memory

is bad, and I'm afraid I don't have the defendant's Motion to Continue in front of me. I had a conversation with Mr. Griffith about this case, and we've also conducted a number of the interviews. It's my understanding that Mr.

Griffith will be out of the country actually during most of the month of December. Now, I'm not sure

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exactly of that date, but I think that he will be gone
that date as well. We had discussed a setting in January and I think to be ready for a firm trial date probably the second or third week in January. THE COURT: Mr. Vaca, do you have any

information regarding -- I don't have a copy of the

Motion to Continue before me. MR. VACA: Your Honor.
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Case 2:04-cv-00573-FJM

I don't have any objection,

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THE COURT:

Mr. Smith, is it your

understanding your attorney is going to be gone for the month of December? THE DEFENDANT: THE COURT: Yes, ma'am.

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Any objection to continuing

your trial into January for that reason then, sir? THE DEFENDANT: THE COURT: No, ma'am.

I'm going to go ahead and

continue it then until January 17th, and we will make that a firm trial setting.
MR. WINTER: And -Is that agreeable? fine with the State,

THE COURT: MR. Your Honor. THE COURT: WINTER:

That's

It will be at 10:00 then on And

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January the 19th.

That's a firm trial setting.

Mr. Griffith can let the Court know if he has conflicts since that's a ways off.
MR. WINTER: You just said the 19th,

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Your Honor.

The 17th? THE COURT:

I'm sorry.

I meant the

17th. MR. WINTER: THE COURT: MR. WINTER:
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That's fine, Judge. 10:00. There's one other matter in
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this case. I talked with Mr. Griffith yesterday about it, and I didn't realize that he wasn't going to be here today. I had explained to him that at this

juncture I needed to bring up the state's 404(b) motion which we had filed, the notice. The necessity of it, Judge, is, the witnesses that support the 404(b) allegation live in Texas. At least that was their last known address. We

have not actually got those people identified or served yet, but I believe that three still live in Texas.
And it is evidence which I think is

admissible in court, and I need to have a ruling from
the Court so that I may actually get these people subpoenaed and make travel arrangements so they'll be here in January.

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And in my discussions with Mr. Griffith, Mr. Smith wants his trial, and I believe that would be the disposition of this case. plea.
THE COURT: motion.

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It will not go by way of

I'm looking through your

We do need to set that then for hearing well

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ahead of the trial date. MR. WINTER: Judge, I provided this As I said, I told
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notice to the defense sometime ago.
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Mr. Griffith that I was going to be bringing it up today. There has been no response which has been filed

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to our -- at least our notice. It is clearly germane. The MO in the

previous case which we are alleging in our 404(b) motion is very similar to that which was used in this case. What I would suggest, Your Honor, since I had notified Mr. Griffith of my intention that if the Court is so inclined, if granted, if the defense at some point wants to revisit that issue, it would then
be their onus to file something. Court to grant it today. THE COURT: this case? MR. WINTER: In this case, her name is Who is the alleged victim in But I would ask the

Tseko, Your Honor T-s-e-k-o, Rachel.

She is a minor.

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Her representative is her mother Susan, same name, Tseko, T-s-e-k-o. THE COURT: And is Mr. Griffith -- he

hasn't left for his trip yet, has he, or what's the status? MR. VACA: THE COURT: Judge, I just I'm not inclined to grant
Filed 08/11/2005 Page 10 of 53

the motion and an order that the State will be allowed
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to use this other 404(b) evidence at trial without having Mr. Griffith here to address that. So we do

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need to set that at least for argument so that the Court can consider and weigh the probative value versus the prejudicial effect. MR. WINTER: number. Judge, I have his phone

Perhaps we can give his office a call real

quick and get it set before he leaves. THE COURT: MR. WINTER: leaving soon.
THE COURT: Okay. We will leave that

I would like to do that. I know he's planning on

open.

We will, though, set that hearing as soon as we

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can get hold of Mr. Griffith and find out if he's available for a short hearing on that matter. And if you want to wait around, Mr. Smith, to find out when we're going to have that hearing -- it's not absolutely essential that you be here, but you certainly may be here, and it's always in your interest to be here during any court hearing, whether it's argument on motions or other matters. And if he's available by telephone, we could do a telephonic this morning on it MR. WINTER:

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That's fine.

THE COURT: -- as long as everyone is 25 Case 2:04-cv-00573-FJM Document 33-3 Filed 08/11/2005 Page 11 of 53

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here.

But we'll find out. (Brief recess.) (The following proceedings were held in

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THE COURT: hear me?

Mr. Griffith, can you still

MR. GRIFFITH:
THE COURT:

Yes. That worked.

Okay; good.

And we'll try to talk into the speaker phone here. I'll move it over closer to Mr. Winter.
But we were

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-- let the record show the presence of Mr.

Smith, Mr. Winter, Mr. Vaca, our clerk and court reporter in chambers.

And Mr. Griffith is on the

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speaker phone. And Mr. Winter wished to be heard at this time regarding the State's 404(b) request because of the necessity, if the Court grants that, of setting up the out-of-state witnesses. And first of all, Mr. Griffith, we did set this matter for a firm trial date at 10:00 on January the 17th. MR. GRIFFITH:
THE COURT:

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That's fine, Your Honor. As I understand,

All right.

you were going to be gone during the month of December so we settled on that date.
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MR. GRIFFITH: that's a fine date. THE COURT: this. I have

That's correct.

And

Okay.

And let me ask you

-- I do not see any response to the

state's Notice of Intent to use the 404(b) evidence. MR. GRIFFITH: I have not responded.

The -- I'm not clear on the -- whether or not there are any parallels. I don't believe there are parallels

between these, and this is not a sex case which would allow the introduction under the motion for propensity exception to the rule under 404(b).
it's a~p~op~1ate.

So I don't believe

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THE COURT:

Okay.

Let me hear from Mr.

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Winter first, and then I will hear further response from you on that. And you may proceed. MR. WINTER: First, MR. Thank you, Your Honor.

can you hear me, Gregg? Yes. Okay. First thing, As I'm looking 1994 , You r

GRIFFITH :

MR. WINTER:

Honor, two housekeeping matters.

through my file here regarding the State's Notice of

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Intent

to Use Other Wrongs as dated September 21, the first paragraph, it talks about
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in the body on

Case 2:04-cv-00573-FJM

events which occurred on or about July

31, 1983 through
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August 2, 1993.

That should read 1983, Your Honor. THE COURT: Okay. So this is July 31st

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of '83 through August 2nd of 1983? MR. WINTER: about. THE COURT: MR. WINTER: Okay. And also, regarding the Yes, Your Honor, on or

State's allegation of historical priors which is the same

-- the prior felony conviction arises from the

same events. In the state's allegation of historical priors, Your Honor, it should read: On or about May 16

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of 1984, the defendant was previously convicted of the crime of indecency with a child. Mr. Griffith is right and wrong. He is

right about the notion the State is not attempting to
prove this as part of a propensity type argument

because it is not that. exception.

It does not fall under that

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What exception it does fall under, however, Your Honor, is common scheme or plan. Essentially the same MO that the defendant uses in this case, he used to perpetrate the crime in 1983.
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And

that is where Mr. Griffith is wrong if he doesn't see
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any parallel between these cases. Essentially what happens in the Texas case, Judge, is that

-- well, you probably don't know
Just I do not.

the facts of this case.
THE COURT:

MR. WINTER:

In a brief overview, Your

Honor, what the state alleged is that the defendant hired this young girl by the name of Rachel Tseko

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one day in particular, he invited Ms. Tseko -- in fact, hired Ms. Tseko to come over to his house to do some housework. The state alleges that at that time, sometime during the day, he administered a drug which we believe to be Halcion -- it also has a clinical
name, but 1111 just call it Halcion for our purposes today -- to this girl.

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It caused her to become

essentially intoxicated and she essentially passed out. There is no allegation that the defendant actually did anything to her during the time that she was passed out because she has no memory of
it.

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Interestingly enough, one of the side effects of

Halcion is, it causes amnesia according to the physician we talked to -- Mr. Griffith and I talked to a couple of weeks ago. The case in Texas, Judge -- and Ms.
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Tseko, I believe, was 15, a minor. involved a minor as well.

The case in Texas

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And I believe this now

woman, then girl, was 12 years old at the time. At that time he had invited this girl over. The family had invited this young girl over to

spend the evening with himself and his wife, and at that time he gave her sleeping pills and committed a attempted to commit, anyway, a sexual assault upon the girl. She ran up to an upstairs bedroom, barricaded

herself in and was able to make her escape. Now, the actual crime, I believe, is

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convictions, and it is -- in Texas the defendant pled guilty

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-- excuse me pled "no contest" to indecency with

a child, Count II, and was sentenced accordingly. THE DEFENDANT: anything? Am i allowed to say

THE COURT:
speak for you.

No, sir.

Your attorney will

Anything further from the State in regard to the request to allow such evidence? MR. WINTER: THE COURT: you about the time. No -- well And first of all, let me ask

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This is an offense that

occurred Document 33-3 Filed 08/11/2005 Page 16 of 53

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MR. WINTER:

Approximately ten years

THE COURT:

-- approximately ten years

And what's the alleged date of this offense?

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July 7th of 1994 so the other offense would have

occurred MR. WINTER: THE COURT: present offense.

About 11 years ago. -- 11 years prior to the

MR. WINTER:

That's correct, Your Honor.

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Now, there is no limitation under 404(b)
And while it may appear remote in

time, the facts of the case so closely parallel what
occurred in this instance that this is clearly information which the jury is entitled to hear.
under 404(b), the And of

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-- as well as all of the rules

evidence, the prejudice is in favor of allowing all

relevant information. category.
THE COURT:

It clearly falls under that

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And let me ask you this in Are you asking the

regard to the prejudicial effect.

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Court to allow evidence not only that the defendant

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previously drugged the 11-year-old minor but also regarding the sexual assault?

MR. WINTER: 25 It -- we don't Yes, Judge. Case 2:04-cv-00573-FJM Document 33-3 Filed 08/11/2005 Page 17 of 53

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know what the defendant did to Rachel Tseko while she was asleep, but it is certainly a potential motive and a motive that the jury could find, based upon his activities that day, that he knocked her out in order to commit sexual assault or sexual abuse or merely to see or take photographs. We don't know. But the jury

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will be allowed to make proper inferences, and the defendant, frankly, has a track record for doing this. THE COURT:
Mr. Griffith? MR. GRIFFITH: Your Honor, having read

Thank you, Mr. Winter.

the statements from the alleged victim in Texas, I

don't see anything about drugs being administered or anything else. The only thing I know about any drugs

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were that she supposedly took a Tylenol after she sprained her ankle. Now, this alleged sexual assault that occurred 11 years ago -- 11 years ago, there's been no continuing acts or propensity, no common scheme, no continuing plan. For 11 years, the man has lived a

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fine, upstanding life. As I read the statement from Jennifer

Ann Jackson, the alleged victim, it was that Bill started rubbing her leg -- I mean Mr. Smith started rubbing her leg, not -- after she sprained her ankle.
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And after he started rubbing her leg, according to her, she got -- he got carried away and started touching her underwear. Nothing about being drugged, nothing about

being knocked unconscious, not at all similar to this situation. And I don't see how the Court can find that an 11-year-old case is part of a common scheme, especially when the facts are so dissimilar in that in the sexual assault, as I understand the police report, the girl was completely fully conscious and hadn't been
administered anything.

Mr. Winter says she was administered a sleeping pill, but in the voluntary statement of
Jennifer Jackson, which was signed on August 2nd of

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1 1983, I don't see anything about a sleeping pill. 5 THE COURT: 1 Thank you, counsel. 6 1 7 Anything further on that, Mr. Winter? 18 MR. WINTER:

Judge, she was, in fact, I'm looking I cannot hear Mr. Winter

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administered a sleeping pill.
MR. GRIFFITH:

at this point.
MR. WINTER:

I said she was, in fact, I'm looking for it in

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administering a sleeping pill.

the documents right now, but I'm certain that is the case.
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MR. GRIFFITH:

Well, was she fully

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conscious at the time of the supposed assault? MR. WINTER: Oh, yes.

So what happens, Gregg, and Judge, is, the defendant learned from his failure 11 years ago. He learned how to knock her out cold.
this case.

And he did so in

And I think that's clearly something that

the jury can find. MR. GRIFFITH: like an attempt to thwart 403. prejudicial, nonprobative. Judge, this sounds to me I mean this is highly

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This is so old, so remote

in time, and I would say that the line of cases talking about propensity is right on point. THE COURT: MR. WINTER: appropriate. Thank you, counsel. Propensity isn't This is a

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This is not a propensity case.

1 7 404{b) case. 18 1 9 20 21 22

Propensity is a unique animal in the law

of sex cases, Judge.

This is not that issue.

We're talking about -- in the other case he administered a drug to a young girl in 1983, and he administered a drug to a young girl in 1994. THE COURT:

Thank you, counsel.

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I will allow the State under 404{b) to present evidence in the other case that he did administer a drug -- if the State can prove that up,
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that he drugged an 11-year-old minor female with a sleeping agent. I'm not going to allow in any evidence of what transpired afterwards in regard to any alleged sexual assault. I think that is unduly prejudicial.

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But I will allow the other aspect or the other evidence regarding his actions to come in. I believe that is -

although it is old, it's over 11 years old, I would agree that that goes to the weight that the jurors can assign it rather than to any -- precluding the evidence because it is over ten years old.
I do find this is very probative of

intent to show preparation or plan or for

-- to show MO

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or modus operandi, and I find that 404 -- 403 does not

preclude the evidence itself, just the -- we will not have any of the evidence regarding alleged sexual assault. And we're not going to address the 609 hearing. That will be held at a time closer to trial. Anything else on this issue that either of you would like to put on the record at this time? MR. WINTER: MR. GRIFFITH: Honor. THE COURT:
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No, Your Honor. No. Thank you, Your

Thank you.

And we will see
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you on January 17th then. MR. GRIFFITH: Right. Thank you.

THE COURT: at this time.

All right.

stand in recess

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(11:30 a.m.)

************

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EXHIBIT F

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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

STATE OF ARIZONA,
Plaintiff,

vs.
WILLIAM FLOYD SMITH,

) ) ) ) ) ) ) )

CR 94-92467
1CA-CR 96-0231

Defendant. ) ------------ )

PREPARED FOR APPEAL

REPORTER'S TRANSCRIPT OF PROCEEDINGS

[404(B) Hearing]

BEFORE:

THE HONORABLE BARBARA M. JARRETT

Mesa, Arizona April 18, 1995

PREPARED FOR: ATTORNEY GENERAL

(Copy) Case 2:04-cv-00573-FJM

Document 33-3

Reported by: DONNA JOHNSON, RMR Official Court Reporter Filed 08/11/2005 Page 25 of 53

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The foregoing proceedings were held on

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April 18, 1995, before the Honorable Barbara M. Jarrett, Judge of the Superior Court of the State of Arizona, Maricopa County, 222 East Javelina Drive, Suite 2B, Mesa, Arizona.

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APPEARANCES: For the State of Arizona: MARICOPA COUNTY ATTORNEY By: Mr. William T. Winter Deputy County Attorney For the Defendant: MR. GREGG H. GRIFFITH Attorney at law

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Phoenix, Arizona A.M. Calendar (The following proceedings were held in open court:)
THE COURT:

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And show this is

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CR 94-92467, state vs. William Floyd Smith. Is the State ready? MR. WINTER: Yes, Your Honor. Bill

Winter on behalf of the State.
MR. GRIFFITH: Gregg Griffith appearing As you know, last

without the defendant, Your Honor.

1 2 time we waived his presence for this particular
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hearing.
THE COURT:

Yes, we did.

1 And this is the time that we had set for 5 1 argument on the 404(B) motion. Are counsel prepared to 6 1 7 argue that at this time?

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MR.

GRIFFITH:

Yes, Your Honor. State is, Judge.

MR. WINTER:

Judge, it's not only the 404(B) motion, but it's also the revisiting of the initial 404(B) as the Court will remember. THE COURT: MR. WINTER:
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Is that correct? That is correct. Judge, I don't really have
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anything to add to our initial requests unless there

Case 2:04-cv-00573-FJM

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are questions from the bench.

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The one

-- I guess the only thing that I

would add, the Court wanted the parties to discuss the case

-- I believe it's Salazar, State v. Salazar THE COURT: MR. WINTER: Yes. -- at 173 Ariz. Adv.

Reports, Page 3. Judge, Salazar is wholly inapplicable to the case at hand. What Salazar discusses is propensity It's important

evidence in sexual abuse type cases.

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for the Court to keep in mind the whole backdrop of
404(B) type evidence, Judge. Generally speaking,

404(B) evidence is not allowed for character

assassination. purpose.

It is allowed for any other lawful

Propensity evidence is an exception to

1 7 that generally stated rule.

Propensity evidence is

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allowed essentially as character assassination as an

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assassination, all right, and it is narrowly restricted to sexual abuse type cases. This is not the case that we have. case is one in which the defendant administered a dangerous drug to a minor child. There is no
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Our

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allegation of sexual abuse.

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What the state's intent in drawing out the evidence we request is to show motive, not propensity, although it is of a similar is similar.

-- the motive

That is to say, we believe that the jury

can reasonably infer from the defendant's past actions that he intended to sexually assault this child. not a sexual propensity case. Salazar, as well as its predecessors, deal only with propensity issues. applicable in sexual abuse cases. THE COURT: Propensity is only This is a drug case. It's

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But you're asking the Court

tn this g.Y9 gaS8 to allow eV~geng8 .ega.gin9 p.ig. sexual acts the defendant committed against other young women when he alleged

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--

whom he allegedly administered

1 drugs, is that correct? 5 MR. WINTER: Sure. It is correct as to 1 6 1 7 motive, Judge. And it's a wholly different notion, all 18

right?

The Court has got to keep in mind that motive And the motive could be

1 9
20

is allowed under 404(B).
anything.

In this case, the motive is -- it's a sexual But it doesn't turn the case somehow into a

21 22 23 24 25

motive.

sexual abuse case, the only case in which propensity evidence is allowed. THE COURT: But you do agree that under
Filed 08/11/2005 Page 30 of 53

403 that the Court has to be careful not to let in
Document 33-3

Case 2:04-cv-00573-FJM

6

1 2 3 4 5 6 7 8 9
1 0

things that are so much more horrendous than the crime charged that would prejudice the defendant, don't you? And I think that what -- a lot of Salazar that concerns the Court MR. WINTER: but Salazar doesn't apply. abuse cases. Judge -- and I understand It only applies in sexual

You cannot make the analogy that it is

applicable in this case simply because there's a sexual motive. And the Salazar case also invents this

three-prong -- what the Court calls an incremental
inquiry.

1 1
12 1 3

It's something which Judge Fidel invented,
This is

drawing out from the Winestein treatise.

something which really has no application in our case. I agree with the Court, it must be careful to balance the notion of unfair prejudice. Court also must keep in mind that it is unfair prejudice. Simply because the evidence is adversely The

1 4
1 5 1 6

1 7 18 1 9 20 2 1 22 23 24 25

prejudicial does not mean it is unfairly prejudicial. And obviously, we wouldn't attempt to bring that evidence out otherwise. The State's believe is this. When

addressing 404(B) issues, the Court must fall in essentially one of two camps, and I submit that Judge Fidel falls in the camp that he does not trust the jury system.
Document 33-3 Filed 08/11/2005 Page 31 of 53

Case 2:04-cv-00573-FJM

----

7

1

You have either got to say:

Jurors, you

2 3
4

are entitled to this evidence because it is germane, and we will trust you with this evidence, but we will instruct you that you are not to consider this for any other purpose other than motive. Or the Court falls into the camp of Judge Fidel and saying, you know: We can't trust a Simply because

5 6 7 8 9 10 11
1 2 1 3 1 4
15 16

jury to make this kind of a decision.

we throw out something that sounds bad, we can't trust a jury to limit their focus to only addressing a 404(B) issue as opposed to allowing it to slop over and
saying: Well, you know, he was a bad guy ten years

ago, so we're going to convict him in this case.

The State trusts the jury. that the Court should do likewise. THE COURT:
Mr. Griffith? MR. GRIFFITH:

We believe

Thank you, Mr. Winter.

1 7 18 1 9 20
21

Your Honor, I would just

stay with my response and again say Salazar does seem
applicable to me. It's right on point. I will

indicate this should not be admitted.

By no stretch of

22 23
24 25

the imagination, can the prosecution get this evidence in. It's not a sexual case so they can't come in under And it's not -- it comes in under no other
Document 33-3 Filed 08/11/2005 Page 32 of 53

propensity.

Case 2:04-cv-00573-FJM

exception to 404.

8

1

The sexual propensity is a carved-out exception to 404, 403. And this doesn't fit that

2 3 4 5 6 7 8 9 1 0 1 1
12 1 3

exception, and now the prosecutin's trying to say, well, we know we didn't quite make that exception, although when you read their original pleadings, it certainly sounds like they're trying to get it in under that exception. They concede they don't make that exception, and now they're trying to carve out some other special exception, and I don't believe it's there.
THE COURT: Okay. Would you agree with

Mr. Winter that this evidence is relevant to show motive or intent in the present case? MR. GRIFFITH: Well, not really. First of all,

14 1 5 1 6
1 7

There's all kinds of problems with it. we can't woman.

-- as far as I know, we still can't find the
Maybe that's changed, but as of last month, And I still don't know

1 8 1 9
20 21

they couldn't find the woman.
if he knows where she is.

But, no, I don't believe it goes to
motive anyway.

22
23

I mean basically what we have in the I

first case is, he gave her aspirin and cough syrup. mean that's THE COURT:
Document 33-3

24 25

But he made -- didn't he
Filed 08/11/2005 Page 33 of 53

Case 2:04-cv-00573-FJM

9

1 2 3 4 5
6

make statements to the victim about wanting to get her drunk to see how she acted or something to that effect? MR. GRIFFITH: she -- if he did or not. Well, we don't know if

I mean we've never had a Again, I

chance to interview this so-called victim.
don't know if

-- and I believe -- or again, Mr. Winter

7 8 9 10 1 1 1 2 1 3 14

and I don't know if this was a case that was dismissed or not. All we have is some illegible paperwork from And at least the defense

Texas from ten years ago. copies are illegible. Winter's, and it's

I've had a chance to look at Mr.

not much better.

THE COURT: Let me ask you this. Assuming the victim can be found, even if charges were never brought or were dismissed for some reason, would

1 that preclude the state from presenting such evidence 5 1 if the Court found it relevant? Would that be 6 1 7 dispositive is what I'm asking. 1 8 1 9 20

MR. GRIFFITH:

The lack of a victim?

The lack of someone testifying THE COURT: No, not the lack of a

21 22 23 24 25

victim, assuming the victim is available or the state finds her and she's available. MR. GRIFFITH: dispositive? Would that be

No, absolutely not. THE COURT:
Document 33-3

What if charges were never
Filed 08/11/2005 Page 34 of 53

Case 2:04-cv-00573-FJM

1 0

1 2 3 4 5 6 7
8

brought or were dismissed for some reason and it never -- there hasn't been, I guess, a finding by a jury that he's guilty of this, but would that make it any less evidence if it's out there? MR. GRIFFITH: Yes, it would, Judge,

because first you have to find that this evidence is reliable, and I don't know how you can make such a finding without hearing the witness' testimony and examining the circumstances from now 12 years ago. It can't be let in just on the basis
that there was some allegation 12 years ago. be reliable.

9 1 0
1 1 12 1 3

It has to

And at this point the Court has been

given no opportunity to assess the reliability of that evidence. THE COURT: If the Court finds that, I

14 1 5
1 6

guess, the victim would testify regarding this, isn't it up to the jury to determine whether what the victim would be saying in that case is true?
MR. GRIFFITH:

1 7
18

1 9
20

No, no.

You have an

obligation to first assess whether or not it's reliable. It's not enough just that there's some wild There has to first be a

21
22

allegation out there.

23 24 25

determination that it's reliable. THE COURT:
Document 33-3

Thank you, Mr. Griffith.
Filed 08/11/2005 Page 35 of 53

Anything further on that?

Case 2:04-cv-00573-FJM

1 1

1 2 3 4 5 6
7

MR. GRIFFITH: THE COURT: state's position?

No.

Mr. Winter, what's the

And I would assume -- and even if

the Court did find that this was relevant and might be admissible or at least some aspects of it might be admissible, it is the state's burden to, I guess, present sufficient evidence to go to jury on the 404(B) evidence. Would you agree with that? MR. WINTER: Well, not actually, Judge.

8 9
1 0

There is a difference of opinion to say what type of evidence or what modicum of evidence is necessary
befo~e one is allowed to b~ing it in.

1 1
1 :l

1 3

For instance, a lot of 404(B) evidence isn't a crime at all. So it's not as though we would

1 4
1 5

have to present evidence such that that would go to a jury because it's not a crime. So defense counsel is wrong about this, and defense counsel is also mixing apples and oranges.
If we can't find our witnesses, then we can't bring any evidence, and I don't plan on doing so. lawfully to get that evidence in. What There's no way

1 6
1 7

1 8 1 9
20 21 22

THE COURT:

I was going to ask if you

23 24 25

were planning on attempting -- if the Court allowed it, attempting to hearsay something in rather than have the

victims Document 33-3 Filed 08/11/2005 Page 36 of 53

Case 2:04-cv-00573-FJM

1 2

1 2
3

MR. WINTER:

Absolutely not, Judge,

because we think that the evidence only becomes germane if the victims of the crime are able to address the
jury in this particular instance.

4
5

To remind the Court of what these two different victims would be testifying to -- and it was the defendant himself who told the Texas police ten years ago that he gave victim No.1 a sleeping agent in

6
7

8 9
1 0 1 1 1 2

-- rather than aspirin. He told the girl that it
In this case

was aspirin, but it was a sleeping agent.

he gave the victim a prescriptive sedative that happened to be a dangerous drug. In victim No.1, he attempted to
sexually assault that girl, and she was able to lock herself in an upstairs bedroom and escape out the

13 14
1 5 1 6 1 7

window.

In the second case, that was when he was I would like to see

making statements to victim No.2: you drunk.

1 8 1 9 20 2 1 22 23 24 25

And at some point he attempted to give statemen her some agent which made her think about the t about getting her drunk, and he attempted to sexually assault her on four or five different occasions. she -- she then went on vacation, returned, When

found out

what happened to victim No.1 and felt horrible that she had never reported the previous activities of the
Document 33-3 Filed 08/11/2005 Page 37 of 53

Case 2:04-cv-00573-FJM

1 3

1 2 3 4
5

defendant. The defendant had also lavished gifts upon the earlier victims which he had done also with
the victim in the instant case, buying her a lot of clothes.

The method of operation, in other words, in three cases is all is , the same.

6 7 8 9 1 10 1
1 2

Judge,

In terms of where we are, we know where victim No. 1 haven' t and we can get access to her. We in

doneso

to this point because we've been

live back east. And what contact with her mother who the defendant did to her has had s lasting effect. a And according to her mother, she says, you know: I'd rather that you don't talk with my
She finally has her life

13 14
1 5

daughter about these things.

in order and has been able to put this behind her. want to leave it in the past.

We

1 6
1 7

The fact of the matter is, Judge, if we are allowed to get in this 404{B) evidence, we regret any problems that the might cause for victim No.1, but
we feel that it is important to our case and to make

18 1 9
20 21

sure that the defendant doesn't -- is never in a position to cause this type of harm again to bring in victim No.1. Victim No.2 we have not been able to find as of this date.
Document 33-3 Filed 08/11/2005 Page 38 of 53

22 23 24 25

Case 2:04-cv-00573-FJM

14

1 2

THE COURT:

Do you agree with Mr.

Griffith that the Court has to make a determination whether the testimony of these victims would be reliable prior to determining whether it would be admissible? MR. WINTER: The Court does have to make

3 4 5 6 7 8 9 1 0 1 1
1 2

an initial determination that evidence is not -- is less -- I'm sorry, is more probative than it is prejudicial. We agree to that extent. THE COURT: Okay. I would like to read

some of the case law in this area and consider the arguments of counsel before making my ruling regarding the 404(B) evidence. at this time. I will take it under advisement

1 3 14

1 MR. WINTER: Judge, the state would 5 1 offer to submit the police reports which we have in 6 1 7 order for you to make whatever determination you would 1 8 like to in giving weight to the statements.

1 9
20 21 22 23 24

THE COURT:

That would be helpful.

Any objection, Mr. Griffith? MR. GRIFFITH: THE COURT: No, Your Honor. Thank you. If you would get

those to me, I would appreciate that then. And we -- when is our next trial setting
Filed 08/11/2005 Page 39 of 53

25 Mr. Smith's case? Case 2:04-cv-00573-FJM Document 33-3

--

1 5

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

MR. WINTER:

Judge, we have a nonfirm We

trial date currently scheduled for 5/10 of 1995.

were expecting at that time -- see, the way the case is coming down, we need to know what witnesses we need to get in as far as the state's concerned. That's why we

set a nonfirm trial date for 5/10, and then we'll need to effect -- we may need to effect process on victim No.1 if we get some kind of resistance from her mother.
THE COURT:

All right.

If you would get

those DRs to me as soon as possible, and I will try to
rule on this within a week or so after I get those.

And we will go ahead and affirm the nonfirm trial setting of May 10th and see where we are

14

at that time. 1 5 MR. WINTER: Judge, I'll, with Mr. 1 6 1 7 Griffith, just -- I can go to my office now, pick out

18 19 20 21
22 23 24

the DRs, let him take a look at what I'm submitting to the Court and get those to you today. MR. WINTER: Thank you, Counsel.

***************

Case 2:04-cv-00573-FJM 25

Document 33-3

Filed 08/11/2005

Page 40 of 53

,.

I

0) 0 AJ!\JA \)' CJ \:i.o.)S on)

,

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.

l7~y

of ~\/

DATED this

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Case 2:04-cv-00573-FJM

Document 33-3

Filed 08/11/2005

Page 41 of 53

1 II TERRY GODDARD
ATTORNEY GENERAL

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

4 1275 W. WASHINGTON
II

CRIMINAL ApPEALS SECTION

5
6

PHOENIX, ARIZONA 85007-2997
II

TELEPHONE: (602) 542-4686
(STATE BAR NUMBER 022246)

II

ATTORNEYS FOR RESPONDENTS

7 8 9 10 11 12
13 14 15 16 17 18 19

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

CIV 04-573-PHX-FJM (MS)

EXHIBIT G FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

20 21 22 23 24 25 26 27 28
Case 2:04-cv-00573-FJM Document 33-3 Filed 08/11/2005 Page 42 of 53

q

to

"

0

YVeo

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

STATE OF ARIZONA,

)

)

Plaintiff, ) )
vs.
)

CR 94-92467 ) ) ) Defendant. )
----------------)

WILLIAM FLOYD SMITH,

1CA CR 96-0231

PREPARED FOR APPEAL

REPORTER'S TRANSCRIPT OF PROCEEDINGS

(Pretrial Motions)

BEFORE:

THE HONORABLE BARBARA M. JARRETT

Phoenix, Arizona September 25, 1995

PREPARED FOR:
ATTORNEY GENERAL

(Copy) Case 2:04-cv-00573-FJM

Document 33-3

Reported by: DONNA JOHNSON, RMR Official Court Reporter 201 West Jefferson Suite 6B Phoenix, Arizona 85003 (602) 506-1651
Filed 08/11/2005

Page 43 of 53

Case 2:04-cv-00573-FJM

Document 33-3

Filed 08/11/2005

Page 44 of 53

2

1 2 3 4 5
6 7 8 9 1 0 1 1 12 1 3

The foregoing proceedings were held on September 25, 1995, before the Honorable Barbara M. Jarrett, Judge of the Superior Court of the State of Arizona, Maricopa County, 101 West Jefferson, Courtroom
912, Phoenix, Arizona.

APPEARANCES: For the State of Arizona: MARICOPA COUNTY ATTORNEY By: Mr. Ann Marie Bowen Deputy (telephonically) County Attorney

For the Defendant: MR. GREGG H. GRIFFITH Attorney at Law

14 15 1 6
1 7 18 19 20 21 22 23 24 25 Case 2:04-cv-00573-FJM

Document 33-3

Filed 08/11/2005

Page 45 of 53

3

1 2 3 4 chambers:) 5 6 7 8 9 1 0 1 1
1 2 1 3 14 1 5 16 1 7 18 19 20

Phoenix, 10:10 a.m.

Arizona

(The following proceedings were held in

THE COURT:

And show that we are in And this is

chambers with Mr. Smith and Mr. Griffith. CR 94-11395.

And this is the time that we had set for firm trial setting, and I am in receipt of the State's Motion to Continue this case and also the State's Motion to Transfer this matter back to Southeast.
So -- and I have received the defendant's objections to those two motions. Let me hear anything further that you would like to tell us. And it's Ms. Bowen. MS. BOWEN: THE COURT: MS. BOWEN: I'm sorry.

That's okay.

Yes.
Just that I tried to update

your judicial assistant as the case on Mr. Duckworth progressed. And we did finish up last Friday, so I am We can go forward on this case

21 22 23 24 25

currently out of trial.

as soon as we get a court assigned. THE COURT:
Document 33-3

Okay.

So you are available
Page 46 of 53

to start the trial in this case?
Filed 08/11/2005

Case 2:04-cv-00573-FJM

4

1 2 3 4 5 6 7 8 9 1 0 11
12 1 3

MS. BOWEN: THE COURT:

That's correct. Okay. And I guess the

defendant's other cases are before Judge Araneta at this time. Is that correct, Ms. Bowen? MS. BOWEN: That's correct. We were

supposed to have a pretrial conference today in one of the matters, but they both have been reset for Friday the 29th. THE COURT: Okay. And the status of the

Court's calendar is that we are starting a lengthy first degree murder trial with jury selection today so
this Court is unavailable.

Let me hear from you, Mr. Griffith. MR. GRIFFITH: Well, I'm not certain if Other

14
1 5 1 6 1 7 18

Ms. Bowen is withdrawing her Motion to Continue. than that, my response would be the same.

Ms. Bowen

has, in fact, filed her Motion to Consolidate for trial

but only the other two cases, not -- she did not include this case. THE COURT: Not this one. Okay.

19 20 21 22 23 24 25

MR. GRIFFITH:

So if she's not

withdrawing her Motion to Continue, then we are ready to proceed. THE COURT: Okay. And -

Case 2:04-cv-00573-FJM

MS. BOWEN: The only reason I didn't Document 33-3 Filed 08/11/2005 Page 47 of 53

5

1 join

that one at this time, Your Honor, was for of determining what t o court they were in. And I

2 purposes

3 didn't want 4 5 6 7 8 9
1 0

complicate the matter by

someone

determining a consolidation which there's still basically pending in two different courts. I feel that there is a basis for consolidation, but I was waiting for the ruling on whether or not one of the judges would take it first.
THE COURT: Thank you, Ms. Bowen.

But I guess basically you are ready to proceed to trial on this case if -- either if we send
it back to Southeast or send it to Case Transfer, is

1 1
1 2 1 3

that correct? MS. BOWEN: out the subpoenas. That's correct. I have sent

14
1 5

All the witnesses have been

1 6

contacted, and we're just waiting now for a If the Court is inclined to send it to

1 7 designation.

18
19 20 21

Case Transfer, then I would ask that it be sent to
Southeast Transfer since there is no other basis to keep it downtown.

I'm familiarized with the court rulings in this case regarding pretrial motions. THE COURT: Thank you.

22 23 24 25

Anything further on the Motion to Continue?
Document 33-3 Filed 08/11/2005 Page 48 of 53

Case 2:04-cv-00573-FJM

6

1 2

MR. GRIFFITH:

No, Your Honor. And before the Court rules

THE COURT:

3 4 5
6 7 8 9 1 0 1 1 1 2

on that, though, one matter I wanted to draw to your attention, Mr. Griffith.
Appointment of Experts.

You did file a Motion for
Are you withdrawing that

motion at this time since you are objecting to the Motion to Continue? MR. GRIFFITH: withdraw that, Your Honor. that we have an expert. THE COURT: MS. BOWEN: Okay. I haven't received that We're not going to I do think it's important

1 3 motion. 1 4 1 5 1 6 1 7 18 Griffith filed. THE COURT: That was a motion that Mr.

It's an ex-parte motion for

appointment of expert in which he asks for an expert on
pharmaceutical drugs.

Does the State have an expert that it
intends to call in this matter in regard to the illegal drugs? MS. BOWEN:

19
20 21 22 23 24

Just the criminalist that

was -- that had done the analysis. THE COURT: I'm going to deny the

request for appointment of expert. Document 33-3

I do not feel that
Page 49 of 53

25

Case 2:04-cv-00573-FJM

it is necessary for the defendant to have an expert
Filed 08/11/2005

7

1

appointed in order to receive a fair trial in this case. And one other matter. Mr. Griffith, you

2 3 4 5
6 7

had filed a Motion to Secure the Attendance of a Prisoner and Order. The Court did not sign off on that

because there was some question whether this was

actually going to be proceeding to trial. So what I'm going to do, I'm going to grant the State's request to send this back to Southeast but -- and go back to Judge Araneta, but at the same time order that it go to Case Transfer since
apparently both sides are prepared to proceed to trial.

8 9 10
11 12 1 3

So that means that if a judge at Southeast is available to try the case, then it will be tried out there. If Judge Araneta is in trial in

14 1 5 1 6
1 7 18

another case, then it will go to another judge at
Southeast. If the judges there are all tied up, then

Case Transfer would seek a judge in the downtown area. Is that agreeable with you if we do that, Ms. Bowen? MS. BOWEN:
THE COURT:

1 9 20 21 22
23

That's fine. Okay. We will do that. And

I will exclude any time due to the Court's congested calendar. And we will contact Judge Araneta's court as
Document 33-3 Filed 08/11/2005 Page 50 of 53

24 25

soon as possible, find out what their schedule is and

Case 2:04-cv-00573-FJM

8

1

whether they can go ahead and take the case and proceed to trial with it or -- and if not, then it will go directly to Case Transfer to try to get a judge available for the two of you so that you can proceed to trial. And I will -- since the defendant is requesting to secure the attendance of a prisoner, I will allow the Judge
a judge in the case.

2 3 4 5 6 7 8
9 10 11 1 2 1 3 14 1 5

-- you can argue this when you get
You would not need that until

it's time to present the defendant's case so there will be time for that to be taken care of at that time, I
believe. MR. GRIFFITH: Your Honor.

Yes, I agree with that,

THE COURT:

Anything additional, Ms.

1 6 Bowen? 1 7 1 8 19 20 21 22

MS. BOWEN:
THE COURT:

That's it.

Thank you.

Thank you. Your Honor, I do want -

MR. GRIFFITH:
THE COURT:

Yes, Mr. Griffith. I do want to object to I don't believe exclusion

MR. GRIFFITH: your ruling excluding time.

23 24 25

of time is appropriate when the reason for the delay is court congestion. Thank you.
Document 33-3 Filed 08/11/2005 Page 51 of 53

Case 2:04-cv-00573-FJM

9

1
2 3 4 5 6

THE COURT:

Okay.

I do feel that that

is an appropriate basis, although -- and I'm not
sure -

MS. BOWEN:
that, Your Honor.

There's also case law on

I don't have it offhand but it has

been -- that has been taken up on appeal previously, and it was determined that that is an appropriate basis to exclude time. THE COURT:
day in this case?

7
8

9 1 0 11 12 1 3 1 4 1 5
1 6 1 7 18

And what is our present last

I guess I can look back at the

minute entry.

Our last day is not till October the

21st, so therels no problem with the last day even if time were not to be excluded. Okay. And 1111 have Florence get on

this right away and contact Judge Araneta, and then we will proceed from there. Anything additional, counsel?

MS. BOWEN:

That's it.

Thank you.

1 9 20
21

MR. GRIFFITH:
THE COURT: (10:15 a.m.)

No.

Thank you.

Thank you.

22 23
24 25 Case 2:04-cv-00573-FJM

************

Document 33-3

Filed 08/11/2005

Page 52 of 53

~.

I
hereby

CDo AJ(\J A 00fj A)S OAJ
certify that the foregoing pages

,

do
a full,

constitute

accurate typewritten record of my stenographic notes

taken at said time and place, all done to the best of my
"
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skill and ability.
DATED this 2.2vU day of

A Ub,

, 1 cf]f;.

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Case 2:04-cv-00573-FJM

Document 33-3

Filed 08/11/2005

Page 53 of 53