Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

2 (FIRM STATE BARNO. 14000) 3 AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997 (STATE BAR NUMBER 022246)

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

ATTORNEYS

FOR

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

CIV 04-573-PHX-FJM (MS)

EXHIBIT L, PART 2, PGS. 40-79 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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major considerations of how fast a drug takes effect is
a person's metabolism?

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A. Q.

That's correct. Isn't it universal children's metabolisms

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are higher than that of adults?

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A.

Typically speaking, a child's metabolism

would be quicker than an adult.

Q.

Would that also correlate, the effect

would be more rapid on a child than it would be on an adult?

A.

I don't know if I could draw that It's -

conclusion or not.

Q.

Is it a factor that could be considered?
Yes, definitely could be considered. And the effects of Halcion, anything in

A.
Q.

this article that indicates the effect of sleepiness,

drowsiness, or amnesia as to how it would affect a child?

A.
Q.

Not as far as its effects on children.

Now, Halcion itself is prescribed for

helping a person to sleep?

A. Q.

That's correct. And because of that usage it would take

effect relatively quickly?

A.

Yeah, it's, it's not meant to be taken,

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you know, six, seven hours before you want the effects
of it.

It's meant to have a fairly quick response in

your body so that you can take it before bedtime and

then its effects to be beneficial for you. Q. I take it, it reaches a peak level also

within a short period of time to have the major effects
taking place shortly after taking the pill?

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A.

Well, most drugs reach peak levels

somewhat within a similar range, that can be anywhere in this case it can be anywhere from three quarters of an hour up to two or three hours, depending upon the person, the metabolism, the body weight.

Q.

As the drug itself gets processed, the

effect of the drug would begin to decrease; is that correct?

A. Q.

Say that again. The effect of the drug begins to decrease

over a period of time?

A.

Over a period of time as the drug is

metabolized in the body, effects on the central nervous
system begin to decrease, that is correct.

Q.

In testing for Halcion in the urine, it

may be present somewhere between 24 and 48 hours after the time of the drug being ingested?

A.

Correct.

We would be able to detect it

./

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still in the urine.
Q.

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But the signs or symptoms that a person

experiences would not be the same over that same period of time?
A.

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That's correct.

Q.

Once again, you indicated in your

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preliminary test that the drug methamphetamine was not detected?

A. Q.

That's correct. If it were present at all in the urine, at

what point would it have to be presented in order for you to determine it?

A.
concentration? Q.

Are you asking me like at what level of

Correct.

A.

The screening technique that's used has a

cutoff level of 500 nanograms per milliliter.

Probably -- it's a small, but it's, it's a set level so that any methamphetamine that's present in the urine above that amount will register positive on the test. Q. A. Q.
It was not present at that level?

That's correct. If it's not present at that level in

urine, would the person still be under the symptoms or signs of that drug?

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A.
Q.

I don't know if I can answer that. At what -- if it's not present at that

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level, can you tell anything about the quantity the

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person must have in their system? A.
Well, from my experience, typically people

that are -- have been under the influence of methamphetamine, people that take methamphetamines when they give a urine sample, the methamphetamine level is significantly high because generally they take quite a bit of methamphetamine, registers quite high on the urine test in the preliminary tests that use the positive for methamphetamine. Now, the time period

though, that is important, that is, after approximately

two days, 48 hours, I may not be able to detect the methamphetamine that's present in the urine for someone who has taken methamphetamine two days ago, meaning that
the level has dropped off so much that it wouldn't be

present enough for me to detect them in a preliminary test.

Q.

What is the time range under which

methamphetamine has its effect?

A.
hours. Q.

Typically anywhere between two to four

After two to four hours a person would not

show the signs or symptoms of being under the influence

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of methamphetamine?

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A.

Typically after four hours a person does

not continue to be exhibiting common signs when under the influence of central nervous stimulus, which
methamphetamine is -

Q.

After two to four hours they would not

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need a counteracting drug such as Halcion to bring them
down?

A.

Well, after the time of stimulation, after

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the euphoric rush, that high the people, people experience when they are on methamphetamine, the body does what is called crashes or begins to come done from that high. Everything is sped up, the blood pressure,

the pulse, the sense of euphoria, excitability, that's all levels way up here and the body wants to bring those back down to normal. After four hours the body begins

to do that, or begins to become effective at doing that

and the person then becomes what is called the down side of the stimulant, the methamphetamine they are on the down side of methamphetamine and they are not experiencing those types of rushes, that stimulation that the drug caused originally. Q. Again, then they would not need the

Halcion after that?

A.

If somebody were taking Halcion for the

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purpose of slowing their body down because things got

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sped up from a stimulant, then my, my opinion would be I would see no reason why they would want to take the benzodiazepine since their body is already returning to normal or becoming on the down side of this drug.

Q.

During the course of your

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cross-examination, you were asked about two
hydroxytriazolam. I'd like to show you what has been

marked as Exhibit 28. May I approach?
THE COURT:

Yes.

BY MS. BOWEN:

Q.

That is the read out from the urine test

in this case; correct?

A.

Yes, that's the, the data that shows the

presence of, of metabolite that I identified.

Q.

That is what you were confronted with when

Mr. Griffith identified, asked you about identifying two hydroxytriazolam? A. Q. That's correct.
Triazolam.

What is it about that note that he was
questioning you about?

A.

I believe he was referring to the symbol And that is

that I use routinely to identify alpha.

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the, the Greek letter or symbol for alpha. like this, squiggly type of -

It's a mark

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Q.

If you could make this mark over here on

the board for the Jury.
MR. GRIFFITH:

Your Honor, that's not how

it appears in the exhibit.
THE COURT:

Well, the Jury can compare Overruled.

with how it is in the exhibit 28.
THE WITNESS:

As well, if you look at the

back of the notes that I referred to, as being the notes that I routinely use to mark my results, under the analysis called BENZO-TMS you can see that particular metabolite is actually typed out on that form with that same, with that same, with that same symbol, alpha, and mistaking it for two I think is pretty difficult. BY MS. BOWEN: Q.
As to exhibits 33A

-

May I approach?
THE COURT:

Yes.

BY MS. BOWEN:

Q.

Now, that is the part of that treatise

that you were given, specifically references triazolam; is that correct?

A.
Q.

That's correct. And within that article it gives a

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chemical structure for various forms of triazolam; is that correct?

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A.

It shows the structure of the -- the

chemical structure of the drug itself, and then, is the common metabolites, those breakdown products that are formed when somebody takes into their body those

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structures, are shown as well. Q.
And specifically has a picture of the

triazolam chemical, a picture of it?

A. Q. A.

That's correct. Four hydroxytriazolam?

Yes. with one hydroxymethyltriazolam? That's correct. One, one hydroxymethyl, four

Q. A.
Q.

hydroxytriazolam?

A. Q.
triazolam?

That's correct. Are each of those different forms of

A.

They are not different forms.

Again, the

triazolam is a -- is the parent drug or the thing that is -- if you get a prescription for, for triazolam that's what you will get. That's what the chemical is.

The other structure there represent some of the breakdown products when the body begins to metabolize

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that drug.
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It doesn't mention alphahydroxytriazolam? Q. That's correct. A. Is there a reason for that? Q. Well, what it does mention is one A. hydroxymethyltriazolam, which is the same thing, it's
the same -- different name for the same chemical. Q. Halcion? Which one of those is found in the

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A.

Well, the triazolam is the drug that's

found in Halcion.

Q.

And the breakdown of alphahydroxytriazolam

is one of the ones you've described there?

A.

Yeah.

The breakdown of the triazolam in

this reference is the one hydroxymethyltriazolam. Another name for that is alphahydroxytriazolam. what we report out routinely, that name for it. That's

Q.

Is that what you found in the urine sample

of Rachel Tseko?

A.

Yes, it was.
MS. BOWEN:

I have no other questions of

this witness.
THE COURT:

May this witness be excused? Yes, Your Honor.

MR. GRIFFITH:
MS. BOWEN:

Yes Your Honor.

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Thank you, sir.

You're

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excused as a witness.
All right.
MS. BOWEN:

Ms. Bowen?
Thank you.

The State rests,

Your Honor.
THE COURT:

Would counsel approach,

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

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All right, Members of the

Jury, the State has rested.

Before Mr. Griffith calls any witness on behalf of the defense side, I need to find out from you, if any of you know an individual who will be testifying
for the defense -- excuse me, who will be testifying as part of the Defendant's case. Her name is Ethel willis.

She is a custodian of records for a Dr. William O'Brien.
That Doctor works at the Fountain Hills Mayo clinic. Does any member of the Jury believe they know Ms. Ethyl Willis? No one has raised their hand. Thank you. MR. GRIFFITH: Ethyl Willis to the stand.
THE COURT:

All right.

Your honor, I will call

Okay.

If you would come

forward to the clerk she will swear you in.

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50 1 (Witness sworn)

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THE COURT:

Ma'am, if you would bring the

microphone just a little bit in front of you it will
still pick up your voice from several inches away. Thank you.

E THE L

W ILL I S,

called as a witness herein, having been first duly sworn, was examined and testified as follows:

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D IRE C T BY MR. GRIFFITH:

E X A M I N A T ION

Q.

What is your name? Ethyl Willis. What is you job? Practice manager for Dr. William O'Brien

A.
Q.

A.

in Fountain Hills.

Q.
practice? A. Q.

What kind of medicine does Dr. O'Brien

Family practice. How long have you been doing that? For Dr. O'Brien, since 1992. As the practice manager, do you keep track

A.
Q.

of the records for the doctor?

A.

Yes, I do.

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Q.

All right.

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Your Honor, if I can approach?
THE COURT: BY MR. GRIFFITH:

Yes.

Q.

Doctor, I show you what has been marked as

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Exhibit Number 34.

Do you recognize that document?
Excuse me. I don't believe

MS. BOWEN:

-

THE WITNESS: MR. GRIFFITH:
THE COURT:

I'm not a doctor. Did I say doctor? I think you did.

BY MR. GRIFFITH:

Q.

I'm sorry.

I know you're not a doctor.
Do you

I show you that document. recognize it?

A. Q. A.

Yes, I do.

What is it?

This is a prescription, phone-in request

from patients that we receive in the office.

Q.

Okay.

Who is that for?

A. Q. A. Q. A. Q.

This one is for Dr. O'Brien. And who is the patient? William Smith. And what is Mr. smith's birthday? Birth date? Yeah. I believe it's on there; isn't it?

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A. Q.

No. Okay.

It's not on the prescription request.
How do you know -- what are the

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numbers on that prescription request?

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A.

We have his home phone number, the date of

the prescription, the time that he called, and the prescription, and the amount, and quantity. Q. A. Q. A. Q. What is the drug?
Halcion.

When was the phone in request?
June 2nd of '94.

Was it approved or not approved? It was approved. And who -- what pharmacy was it approved

A. Q.
to?

A.

It was called in to the Walgreen's up in

Fountain Hills.
MR. GRIFFITH:

All right.

I don't have

any other questions, Your Honor.
THE COURT: Thank you.

Ms. Bowen, any

questions of this witness?
MS. BOWEN:

Yes.

MR. GRIFFITH: Exhibit 34 into evidence.
THE COURT:

I would at this time move

The prescription request form? Yes.

MR. GRIFFITH:

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53 1 THE COURT: MS. BOWEN: THE COURT:

Any objection, Ms. Bowen? No, Your Honor.

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Exhibit 34 is admitted.

You're going to be asked a few questions by the other sides's attorney.
THE WITNESS:

Um hum.

C R 0 S S - E X A M I N A T ION BY MS. BOWEN:

Q.

Ms. Willis, when were you first contacted

regarding this prescription?
A.

This particular prescription? Yes. From the patient? No. Regarding this trial. Thursday I believe.

Q. A.
Q.

A. Q.
A. Q.

Excuse me.

Of this past week? Yes. And is that the first time you were asked

to come and testify regarding this prescription?

A.

They called in and asked for approval.

Once we got the signed release from the patient then I gave them a verbal over the phone, then faxed them a copy of the prescription. the subpoena to appear. Then Friday I got the copy of

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Q.

Prior to that phone call conversation, had

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those records ever been requested previously?

A.
Q.

No. Now, you indicated that, that we have had

a discussion; isn't that correct?
A. Q.

Yes, we did. You indicated originally that prescription

was filed in September of 1992; is that correct? A.
Let me check the

-

Yes. September of '92.

He was first seen in the office in
That's when the prescription was

written. Q. Subsequent to that time the prescription

had been filled by telephone; correct?

A.

Correct.

Q.
physician?

Not, the person not being seen by a

A. Q.

Correct.

When a person calls in for the

prescription, isn't it correct that the refill is for the exact amount and dosage that had been originally prescribed?

A. Q. A.

Correct.

That was done in this case also? Right.

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Q.

In particular with Halcion, it is

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monitored to how frequently that prescription is being
refilled; correct?

A.

The doctor looks at it, right, to see how

many times it was filled. Q.
Now, originally that prescription was

called in for a refill February 3rd of 1993; correct?

A. Q.

Correct.

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You mentioned the patient for whom that

was prescribed was not seen by a physician at that time?

A. Q.

Correct. Now, between February 3rd of 1993, an d

when next prescription is called in, in June of the
1994, Mr. Smith never calls the office to indicate that he has lost -- or, that prescription has been stolen; is that correct?

A. Q.
of 1994?

Correct, no. The next time he has it refilled June 2nd

A.

Correct.

Q.

Again, it's for the same dosage and amount

as the original prescription?

A.
Q.

Correct.

The prescription directs it should be

taken one tablet per evening before bed time?

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A. Q.
A.

Right, as needed for sleep, right.
It's a .25 milligram prescription? Yes.

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Q. A. Q.

30 tablets at a time?
Correct.

Now, on June 2nd you already indicated he

was not seen again by a physician? A.
Q.

Right.
Between June 2nd, 1994 and July 7 of 1994,

Mr. smith does not call the office to indicate that the
prescription has been lost or stolen, or that he needed

a refill?

A.

No.
MS. BOWEN:

I have no other questions of

this witness.
THE COURT: MR. GRIFFITH: THE COURT: MS. BOWEN:

Anything else, Mr. Griffith?

No, Your Honor.

Thank you.

May this witness be excused?

Yes, Your Honor. Yes.
You're

MR. GRIFFITH:
THE COURT:

Thank you, ma'am.

excused as a witness. Okay I believe the exhibit is still on the

witness chair.

Your next witness, Mr. Griffith?
MR. GRIFFITH:

Your Honor, we will call

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Kay smith to the stand,.
THE COURT:

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Ma'am, if you would come

forward to the clerk she will swear you in. (Witness sworn)
THE COURT:

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Any time, Mr. Griffith. Thank you, Your Honor.

MR. GRIFFITH:

KAY

S M I T H

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called as a witness herein, having been first duly

sworn, was examined and testified as follows:

0 IRE C T BY MR. GRIFFITH:

E X A M I N A T ION

Q. A. Q. A. Q. A. Q. A. Q.

What is your name. Kay smith? Do you know William Smith.
Yes, I do.

Are you married to him?
Yes, I am.

How long have you been married to him?
17 years.

Now, did you have occasion to come back to

Fountain Hills on July 7 of 1994?

A. Q.

Yes, I did. Where had you been?

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A. Q. A. Q. A. Q. A.
back.

Texas. How long had you been in Texas? About two and a half weeks.
How had you gotten to Texas?
I drove.

Why had you driven?

For a vacation and to drive my mother

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Q.
Texas?

You were driving your mother back to

A. Q. A. Q.

Yes. Had she been visiting you here in Arizona?
Yes, she had.

Had you had any conversations with William

smith regarding what day you would be returning to
Fountain Hills?

A. Q.

Yes, I did.

What day had you told him you would be

returning to Fountain Hills?

A.

I don't remember the exact date, but I

believe the day of the week was a Thursday.

Q.
back?

Was that the same day you did in fact get

A. Q.

Yes, it was.

Now, what happened when you got home?

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A.
Q. just tell us. A.

What do you mean, what happened? Well, when you got home -- why don't you

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I can't lead you in any way. Well, when I got home, Bill was working in

the yard, William, and there was a girl inside the house
talking on the portable phone. not know who she was. And at that time, I did

Q.

Did you know that there was person who was

working for Bill at that time?

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A. Q. fashion? A.

Yes. Did this girl come out to help you in any

No.

She talked on the phone the whole

time while I was unloading the luggage from the car.

Q.

And how long would you estimate that you

were home while she was at your house and on the phone?

A. Q.

Approximately, maybe 20 minutes. Did you have occasion to see her walk or

to actually talk to her?

A.

I don't think I actually talked with her

but I saw her walk when she left to be driven home.

Q.

How was she walking as she She appeared normal.
All right.

A.
Q.

Now, when -- prior to coming

home, had you had any conversations with William about

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him giving her a loan or an advance for clothes?

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A. Q.
A.

Yes.
When had you had that conversation?

I don't remember an exact time. Was there anything out of the ordinary for

Q.

William giving an advance to an employee?

A.

Well, I didn't work with him.

I don't

know necessarily whether that was out of the ordinary or
not.

Q.

Do you know of any other occasions when he

has advanced money to employees?
MS. BOWEN: THE COURT: THE WITNESS:

Objection, irrelevant.
Overruled.

Has he advanced money, is

that what you're asking? BY MR. GRIFFITH:

Q.

Yes.
I think so. I know he did for another

A.

MR. GRIFFITH: questions, Your Honor.
THE COURT:

All right.

I have no other

Thank you.

The other attorney

is going to ask you some questions now, ma'am.

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C R 0 S S - E X A M I N A T ION BY MS. BOWEN:

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Q.

Mrs. Smith, isn't it true that you were

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not exactly certain what day it would be that you would be returning from Texas?

A.

No.

What is certain, I was not certain of

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the exact time that I would be returning. Q.

One of the ways in which you would have

returned, drive straight through; another would have been to take a break and maybe return the next day;

isn't that correct?

A.

I have made that trip more than once.

I

never drove straight through.
somewhere.

I always spent the night

Q.

Are you aware your husband indicated in

his statement he wasn't sure if you were returning Thursday or the fOllowing day?

A.
Q.

No.

I'm not aware of that.

Now, you indicated you were aware that

your husband had hired someone to work for him. A. Q. this person? That's correct. When was it your understanding he hired

A.

I don't really remember that day, just

sometime that summer.

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Q.

And prior to your leaving for Texas had he

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ever introduced her to you or indicated where she would
be working for him?
A. Q.

No, he had not. Was it also your understanding he would

have her work in the home itself? A. Q.
you were gone?

No.
She would be doing housework for you while

A. Q.

We had not discussed that, no. Did you realize that he was paying her

somewhere between 6 and $10 an hour to clean house?

A.

Like I said, I know she had been hired to

clean house so, no, I wasn't aware of that specific thing.

Q.

As to the advance itself, when is it you

became aware that your husband was advancing this person the money?

A.

When he

-- let me know that he was
He discussed it with me prior to

thinking of doing it.
doing it.

Q.
occurred.

Give us a timeframe in which that

A.

I really don't have a timeframe, prior to

when I left for Texas is all I really know.

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Did he indicate to you when he discussed

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this with the person, he took her out to dinner to talk
about the advance?

A. Q. A.

I'm not aware of that.
He personally took her shopping for that.

I am aware of that.
He spent approximately $439 of that I am aware of that. How is it your understanding that person

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Q.
A. Q.

was going to reimburse your husband?

A.

Approximately $50 every week would be

deducted from her salary. Q.

Did he indicate to you in the time frame

she was working for him, she was making approximately $60 a week?

A.

No, we didn't discuss that. Did you also discuss the fact this person

Q.

was supposed to pay him back over a period of eight to nine weeks? A. We really didn't discuss the timeframe,

just that it was going to be a weekly pay back.

Q.

Were you also aware that at the time, that

your husband, husband talked with the police, he indicated he did not want you to know about the fact he had made this advance?

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A.

No, I'm not aware of that.
MR. GRIFFITH:

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Objection, Your Honor, I

think that assumes facts not in evidence.
THE COURT:

Overruled.

The Jury can draw

from their own recall as to what the prior statement
was. BY MS. BOWEN:

Q.

Now, you indicated at the time that you

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came home your husband was working in the yard?

A. Q. A.

That's correct. That was the front yard or the backyard? I believe the back -- or, actually it was it from the driveway.

on the side, so you could see Q.

He wasn't in his house on the phone making

phone calls to clients? A. Q. When I drove up?
Correct.

A.
Q. A. Q. work? A. Q. A.

She was on the phone.
There aren't two phones in the home?

Not two phone lines. Was he dressed in any way particular for

He was dressed to be doing yard work. Do you recall what the girl was wearing? Shorts, I believe.

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Q.
A. Q.
was wearing? A. Q.

Are you sure about that?
No.

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Do you recall anything else about what she

No.
Did you know that your husband indicated

previously that he felt she was acting inappropriate at the time that she was at the house? A. Q.

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No, I didn't.
And that he had concerns about her being

dizzy or sleepy? A. Q. No. Were you aware that she was sleeping at

the time shortly before the time you came home? A. Q. No, I was not aware of that. Now, on this day that you came home, isn't

it true you also had contact with Detective Powers from the police department?

A. Q. A. Q.

On the day I came home? Yes. No.

When was the first time you recall having

contact with Detective Powers? A. The day he came to the house to

investigate the charges, which was several days after I

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2
3

Q.

At that time you indicated you had not

been aware of Rachel Tseko; correct?

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A.

Right.

I didn't know her name.

I had

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never met her prior to that day.
MS. BOWEN:

I have no other questions of

this witness.
THE COURT: All right.

Thank you.

Any redirect? MR. GRIFFITH: Yes.

RED IRE C T BY MR. GRIFFITH:

E X A M I N A T ION

Q.

The only thing I had is, you indicated

that, I think, that you knew that Rachel was going to be

getting an advance sometime before you left for Texas, did you mean when you left from Texas?
A. I don't really remember. I just knew that

Bill and I had discussed it and I don't remember an exact timeframe.
I'm sorry.

MR. GRIFFITH: questions, Your Honor.
THE COURT:

I don't have any other

Thank you.

Is this witness excused,

Mr. Griffith? MR. GRIFFITH: Yes, Your Honor.

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67 1 THE COURT: Thank you.

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

Thank you, ma'am.

You're excused as a

MR. GRIFFITH: THE COURT: please.

Defense rests, Your Honor.

Would counsel approach,

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

Members of the Jury, both

sides have rested.

As you've already heard, that means
We are We are

that the presentation of evidence is concluded. going -- I know we started a little bit late. going to take our mid afternoon break now.

I'm going to

stay here on the bench.

When you come back in about 15

minutes, the rest of the case will consist of closing arguments to you by the attorneys and my instructing you on the law.

At that point the case will be turned over So please

to you for your deliberation and decision.

remember the admonition not to discuss the case with
each other during the break and see you back in about 15 minutes.
Thank you. (Jury left) THE COURT:

The Jury has left the

Counsel and the court reporter and defendant

and case agent are still present.

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By agreement and at my request, Counsel,

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it was agreed that you would reserve the time to make your Rule 20 Motion and argument until we took our next break outside the presence of the Jury.
now.

That time is

You're welcome to go ahead, Mr. Griffith.
MR. GRIFFITH: Thank you, Your Honor.

First, I'd like to incorporate everything I previously

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said, all the arguments I've previously made regarding
13-1205 and the Court has generously agreed to allow me to do that.

And also, the argument I made there was And

no -- in fact, no 3407 in existence at that time. again, that's, I know that's a strange one.

But from my

reading of the law, it appears that 13-3407, the old
code was effected -- was repealed as of July 1st, 1994, and the new code does not apply until -- to anyone who committed a crime before July 17th of 1994. And that's

from my reading of the annotated codes regarding when various statutes go into effect. I don't think there is

any dispute that the old code is repealed effectively as
of July 1st and the new code only applies to persons who commit crimes after July 17.

The other thing that I would point out to the Court is if this is a purely circumstantial case, they have a girl who is a non-party animal, who is using

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birth control pills, who owes somebody $400. Suddenly -- didn't even allege she herself knows he put

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anything in her drink.

We heard the undisputed

testimony that when this drug is added to Martinelli's
apple cider it causes a fizzing, foaming reaction which goes on for two minutes, causes a discoloration of the cider. We heard no testimony, regarding the taste. And

yet the criminalist admitted that he was extremely wise not to taste that potion. We have no evidence

whatsoever that Mr. smith put any drugs in that girl's drink. All we have, he's the only adult around. He has had some They

say, well, he's the adult around.

contact with this drink, therefore, that's enough to

convict him of drugging her.

It just isn't, Your Honor.

That's not a circumstantial case that should survive a direct verdict.
THE COURT: Thank you.

Any response,

Ms. Bowen?
MS. BOWEN:

Your Honor, Mr. Griffith has

alleged certain things in his argument that he failed to do produce as evidence at trial, if he was intending to
do that through cross-examination. First of all there

was no proof this child was on birth control pills.
ask he not be allowed to argue that to the Jury.

I

There

has been no evidence other than through Mr. Griffith's

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questions about her party style.

In fact, all of them

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were no evidence of her using drugs of any sort other than Mr. Griffith's questions, which again were denied, no corroboration of his allegations that this child used
drugs previously. Her whole personal history

demonstrates one thing, an outstanding student, outstanding character who came to work for Mr. smith. Mr. Griffith has tried to impugn her character
repeatedly in the course of her examination. substantiated. None of it

Even the Defendant's statement indicates So as to

he has no knowledge of this person's drug use.

that being circumstantial, I don't believe he's carried his burden. If he is intending to show that, that is

evidence the Jury should consider, he's not adduced at trial. What we have here is a person who has a prescription of Halcion, who had access to the child's drink. The child was fine before she took the drink and She indicated she did not go into

not fine ~fterwards.

the kitchen cabinets, was not aware of the prescription Halcion, and does not even know what it's for.
obvious connection, based on Mr. smith's background,

The

that he placed the drug into her drink to have her affected by it. The urine from that child was tested

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within a period of time, consistent with it being in her

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system, her urine tested positive for a benzodiazapine
derivative, specifically Halcion. Based on that, I believe there is enough evidence there for the Jury to find beyond a reasonable

doubt that Mr. smith did in fact administer the drug. What is inherent in this crime, and all cases, is the
potential that the person getting the drug would not be

aware it was being given to them.

To argue this is

circumstantial, would be the case when every time if you knew you would be given the drug, you wouldn't take it,
otherwise it won't be a crime. take the drug. You would voluntarily

On that basis, I would ask it be

denied -- defense counsel's motion be denied.
THE COURT:

Pursuant to Rule 20, the Court

finds there is no substantial evidence to warrant a
conviction of the judgment -- or, motion for judgment of acquittal is to be granted. opposite exists. The Court finds that the

There is substantial evidence to

warrant a conviction in this case, the offense Administering A Dangerous Drug.
motion is denied at this time. Therefore, the Rule 20 And your, prior argument

relating to 13-1205 are recognized as part of your argument on the Rule 20 motion, Mr. Griffith.

All right, Counsel, I'll have -

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MR. GRIFFITH:

I do need to respond to one They filed sort of a

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thing which the prosecutor said.

motion in limine to preclude me from mentioning the fact that this child has been on birth control. The Court

has ruled her medical records comes in in its entirety.
It's clear as a well in the medical record she is on birth control pills, sexually active, that is in
evidence.

So, I don't believe that their motion in

limine should be granted.
THE COURT: MS. BOWEN:

Ms. Bowen? As to that portion of the

medical record, the Court -- ask the Court to strike it

as not relevant, not linked to any testimony relevant in this case. No questions were asked about it to link it

to whether or not it was medically necessary for her to take it for some other reason other than sexual intercourse, whether she is in Mr. Griffith's words, a
party animal, I guess that would also be sexually promiscuous MR. GRIFFITH: The prosecutor previously

argued no part of the medical record could be excised. That's the way they got that in here. earlier argument.
be excised.

That's their

No part of the medical record could

It had to come in in entirety.
THE COURT:

Mr. Griffith, you did not

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elicit any testimony from the state's criminalist that
ingestion of birth control pills would create any of the

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chemical or forensic finding that the criminalist testified to. So, I can only assume that your desire to

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argue the medical records as containing ingestion of birth control pills by Rachel is to argue to the Jury

that she is a, "party animal" and that she may be
promiscuous or sexually active; is that correct? MR. GRIFFITH:
THE COURT:

No.

What is the purpose? That's part of it, and that And, you know, if we are

MR. GRIFFITH: was evidence already admitted.

going to go back and redact it, I'll have to recall. Rachel, have to recall the criminalist. I'm under no

obligation to question the criminalist as to whether or

not this drug could show up as alphahydroxytriazolam or whether it could have an effect on the test. not -- I don't have a burden to ask him that. It's That's

something that can be argued to the Jury without asking it of him, because they have to prove everything beyond a reasonable doubt. anybody any questions.
THE COURT: All right.

I'm under no obligation to ask

I'm not saying you You simply can't

are.

I'm asking about the relevance.

argue something not relevant as if the criminalist had

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testified to what the chemical derivatives or what the breakdown derivatives would have been from a birth
control pill. MR. GRIFFITH: That's true. I can't say

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he said that one way or the other.
THE COURT:

My ruling is this, Counsel:

The medical records of Rachel have been admitted in
entirety.

Apparently those medical records include

birth control pills.

That portion or any portion of the
The request by

medical records will not be redacted.

the state to redact reference to birth control pills is denied. Anything else before we start -- well, before the rest of the break?
MS. BOWEN:

Yes, Your Honor, I move in

limine, defense counsel be precluded from arguing the relevancy of the birth control pills. it's speculation. First of all,

No evidence adduced whether medical

reasons or otherwise, no correlation to the evidence has

been admitted in.

Mr. Griffith would be testifying as He

to his personal opinion what that significance is.
would also be giving improper evidence to the Jury to consider as to what the conclusion it should be drawing since he is not in any way in a position to answer those

questions, and I don't think it would -- he can tell the

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Jury what that means.

Based on that, I ask that the

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Court preclude him from arguing that standard.
THE COURT:

All right.

Your request is denied, Ms. Bowen.

I

don't know whether there are medical records of Rachel showing she had been prescribed any other pills other than birth control pills. But those medical records

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were available to both sides and we -- the medical

records in their entirety will be introduced to the Jury as an exhibit which has already been admitted. Anything else? MR. GRIFFITH:
THE COURT:

No, Your Honor. I'll see you in

All right.

about ten minutes, Counsel. Manny, will you make sure counsel have their copies? There should be an extra copy for the

Defendant and the case agent of the Jury instruction. (Break)
THE COURT:

Both counsel, the Defendant, Are

case agent, court reporter and staff are present.

you ready to proceed with the Jury coming in, Counsel? MR. GRIFFITH: No, Your Honor. The

prosecutor has pointed out that the Jury instructions include the evidence portion that we agreed would be
taken out, what was number 10 and is RAJI number 19.

I

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thank the prosecutor for pointing that out.
MS. BOWEN:

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Thank you very much,

Ms. Bowen.

Evidence that the Defendant has been

convicted of a felony may be considered for credibility. That should be taken out. Would you just -- well, pull that out of

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your instructions.
10th page.

That means -- it's the, it's the Evidence that the

It reads, starts with:

Defendant has been convicted of a felony may be considered only for the purpose of determining the credibility of the Defendant's testimony. And it goes

on.

That's what you have.

Go ahead and pull that out,

please. You need to do that for all of the Jury verdicts -- all the Jury instructions. Counsel, are you ready for the Jury? MR. GRIFFITH:
MS. BOWEN: THE COURT:

Yes, Your Honor.

Yes, Your Honor.
All right.

(Jury present) THE COURT:

Be seated, please.

The record

will show the presence of the Jury, both counsel, the Defendant Mr. Smith, the case agent, the court reporter and the court staff.
Members of the Jury, counsel will now

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present to you their closing arguments.

The state has

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the burden so they have the opportunity to go twice in presenting their arguments to you.
Are both counsel ready?
MS. BOWEN:

Yes, Your Honor. Yes, Your Honor.
Then you may proceed,

MR. GRIFFITH:
THE COURT:

Ms. Bowen.
MS. BOWEN: MS. BOWEN: Thank you.

If it please the Court,

defense counsel, and Ladies and Gentlemen of the Jury, this case, as you probably already figured out, is an issue of credibility -- who to believe. And in fact you

are instructed or basically told in the course of cross-examination by defense counsel, that Rachel is a liar, and you have to ask yourself whether that's true. And when you do that, you need to sort out the facts of the case, not merely the speculation of what has been

inferred, but the facts of the case. Wasn't the first question to her, you lied to your mother about the clothes. the evidence?
Did she lie?

Was that borne out by

Wasn't the truth of it she Her

said she told her mother, they had talked about it? mother said they talked about it. Defendant said he Why the

made them both well aware of the fact.

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accusations?

Why that kind of question to her?

Why the

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first one, that inference, that word? thinking a certain way.

To get your mind

When the evidence did not show that,

weren't you told that she uses drugs?
evidence of that?

Where is the

Isn't it just all inference and

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speculation and innuendo and character assassination of
that girl?
She denied it.

Defense counsel's statement But they want that

says he has no knowledge of it.

inference before you to speculate, and nothing in her drug test showed anything but the drug Halcion. Weren't you told she was a typical lazy adolescent?
Did the evidence bear that out? Here you

have a child who is working two jobs, excels academically, does extra-curricular activities at school, taking college courses during the time of high school.

Is that anything but typical?

Isn't that an

exceptional adolescent?

By virtue of the fact she is

exceptional in her academics, doesn't that tell you by definition she is exceptional?
age have two jobs?

How many children her

You have to remember this now,

currently it's popularly known as disadvantaged home, parents divorced, apparently the father has some
problems.

Despite those drawbacks, she is excelling.

What does the evidence show you about Rachel?

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Then you're asked to speculate as to a motive. Here she has a great job. She gets a couple of

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hours a week at somewhere between 6 and $10 an hour to

clean his house, watch videos, have a break, chitchat with him, and you're supposed to infer that she wants to blow that setup because she has no other reason than apparently get him in trouble. Additionally, she has a

boss that takes her out and spends $439 on clothes, and for some unexplained reason she now wants to blow this whole situation and get him in trouble. You're going to

tell yourself that doesn't make any sense and that this

girl is smart enough to realize that this is a good
situation.

There is no reason to not want to continue

to work for Mr. smith. You're asked to assess the credibility, and you have the Defendant's credibility before you. You have a taped statement with a transcript. You're

going to be given both the tape and transcript to review
for yourself. When you go through this transcript and

that tape, ask yourself whether or not you feel that you
are getting a straight story, one consistent straight

story that makes sense, or when you listen to the questions, are you really getting an evasive answer to the question?
When he's asked how many hours a week does

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