Free Response - District Court of Arizona - Arizona

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

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AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL

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CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997

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

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

CIV 04-573-PHX-FJM (MS)

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Respondents.

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

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA,
Plaintiff, vs.

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

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WILLIAM FLOYD SMITH, Defendant.

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

Mesa, Arizona October 10, 1995

BEFORE:

THE HONORABLE LOUIS A. ARANETA

PREPARED BY: SALLY STEARMAN, Court Reporter

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

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

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THE COURT:

This is the continuation of

the trial in the case State of Arizona versus William Floyd smith.
The record will show the presence of both

counsel, Mr. Smith the Defendant, court reporter and the case agent. The Jury is not yet in because we need to

review jury instructions and any other matters before the Jury comes in. Let me have my staff, Ms. Bowen, Mr. Griffith, hand to you the instructions that my secretary had already run off. I'll go ahead and clip That's okay.

to the end of that the form of verdict.

Mr. Griffith, if you could you could give Ms. Bowen's hers.
Thank you.

Counsel, essentially

-- not essentially

actually, the State had requested standard RAJI Jury Instructions, 1, 2, 4, 6, 7, 16, 17, 18, 19, 21 and 24. And also 1.056(b), which is the definition of knowingly.

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My secretary inadvertently forgot to insert knowingly.

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She is running that off right now.

That's forthcoming.
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As to number 5, which is -- excuse me. think it's actually number -- well, I think it's Standard 5, which is the old reasonable doubt, which has been replaced in my court before, the State v Portillo reasonable doubt, which you submitted on the second page of your instructions, Ms. Bowen, I have one additional

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sentence at the very top of it, would be -- I think, your pages are not numbered.
it would be the fourth page. It would be 1, 2, 3, 4 -

The requested State v

Portillo reasonable doubt instruction is in the second and third paragraphs. The first paragraph is what I

add, insert along with certain other criminal judges.
Those two sentences, in the first paragraph, read: law does not require a Defendant to prove innocence. The

Every defendant is presumed by law to be innocent. That's taken out of the old reasonable doubt RAJI Standard 5. The Portillo court did not include that. A

lot of judges are questioning whether it should be
included. sentences.

Most of them are including those two If you want to object to those first two

sentences, Ms. Bowen, you may.
MS. BOWEN:

Your Honor, I object if those

two sentences are referenced anywhere else in the
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instructions.

I know at times they are regarding

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testifying or -- and I haven't looked at all your
instructions.

I feel if it is referenced other places,

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it is redundant because the Court has gone through such effort to finally give an instruction they feel will be
upheld on appeal.

It shouldn't be tampered with.

If

it's not given in any other instructions, therefore not
repetitive, I believe it's a correct statement of the law and I don't have any objection.
THE COURT:

All right.

I don't believe I don't believe

I'll double-check again, Ms. Bowen.

it's given anywhere else, those two sentences are given
anywhere else. fine. If either counsel wants to look for it,

I don't think it is.

I'll double-check again

later. continuing on with the requested
instruction.

As I understand it, you had no objection

to the standard RAJIs requested by the state; right,

Mr. Griffith? MR. GRIFFITH: don't, Your Honor. Well, at this point, I

They have included evidence that the

Defendant has been convicted of a felony and, of course, there has been no evidence to that effect in this case.
THE COURT:

Which one is that? That is -- it's your

MR. GRIFFITH:

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number

THE COURT:

Okay.

It's RAJI Standard 19. Evidence that the

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It may not be numbered on your set. Defendant has been convicted of a felony may be considered only

for the purpose of determining the It

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credibility of the Defendant's testimony, period.
goes on. MR. GRIFFITH:
be applicable

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Right.

That's not going

to

in this case.
THE COURT:

If the Defendant did not

testify, I will not give number 19 because there will be no need for a Rule 609 prior conviction being introduced. MR. GRIFFITH: All right.

That's my only

objection to the requests.
THE COURT: Pardon me.

Ms. Bowen, did you

want to be heard on that?
MS. BOWEN:

Yes, Your Honor.

I would

agree that in normal circumstances that is the case,
where the Defendant takes the stand that you can

introduce prior conviction for the purposes of credibility. However, I have seen the courts, Superior

Court, expand more and more on what portions of the

Defendant's statement come into trial.

It used to be

the admissions against interest, then there was a case

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that came in, the statement as to not giving him proper
inference came down. Now basically -- and everything he

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said to the police, they are to weigh that for the credibility of the witness. They have been using that Based on that I

in lieu of a Defendant's testimony.

think credibility is an issue.

Impeachment is the same

standard whether he takes the stand or has the hour and a half statement he gives to the police introduced as testimony. We are in a credibility case here. The

Defendant's entire statement, other than what we feel is
inappropriate are taken out. I think it's a proper That

avenue of impeachment for weighing credibility. evidence should be admitted under this standard.
THE COURT:

Thank you, Ms. Bowen. You don't have to respond

Anything else, Mr. Griffith?
if you don't want to. MR. GRIFFITH:

I don't, I don't feel I

need to respond.

I'm obviously opposed to that.

As far as anything else -- are we moving onto other items?
THE COURT:

If you are about to go to

something else, I wanted to deal with the state's
request I give standard RAJI 19. MR. GRIFFITH:

I don't have anything

further on that.

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THE COURT:

All right.

You're correct in

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that this case does involve the Defendant testifying through his prior interview statement with the detective, Ms. Bowen. I have indicated if he, he,

Mr. smith testified as a witness before the Jury where
they could observe his demeanor and also weigh the substance of his testimony, that the Jury would certainly be entitled to know that he had prior conviction. Given this is a he-said/she-said

credibility type of case, I believe that the first order, I do not find under Rule 609, that despite the

introduction of the prior interview statement by the Defendant to the Jury, that the prior conviction in 1984
from Texas should be admitted. I find that the -

without Mr. smith testifying the prejudicial effect
would indeed outweigh the probative value.

Your request and objection is noted,
Ms. Bowen. Anything else?
MS. BOWEN:

In getting back to those first

two lines the Court added in the reasonable doubt instruction.
THE COURT: MS. BOWEN: to that.
It's 11.

Yes. I did find another reference

I don't have -- my pages aren't paginated. And it indicates that the State has charged

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the Defendant with the crime of Administering a

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Dangerous Drug. says:

The last sentence of that paragraph

This plea of not guilty means the state must

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prove every part of the charge beyond a reasonable doubt, which is, basically a reiteration, only in another form, to say the state must prove the entire
case and the Defendant doesn't have to prove anything. THE COURT: All right.

This is the RAJI

standard 21, that the charge is not evidence.

The first two sentences of my modified
Portillo reasonable doubt:

The law does not require a

Defendant to prove innocence, the Defendant is assumed by law to be innocent, you're saying that's duplicated where the last sentence of the Standard RAJI reads: This plea of not guilty means the State must prove every

part of the charge beyond a reasonable doubt.
MS. BOWEN:
THE COURT:

That's correct.
All right. It used to be

under the prior RAJI reasonable doubt instruction that both the Standard reasonable doubt instruction and Standard RAJI that the charge is not evidence, RAJI Standard Number 21 were given concurrently. I don't

find that the last half of the sentence in Standard RAJI 21, which reads:

The State must prove every part of the

charge beyond a reasonable doubt is duplicative of the

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first two sentences in the reasonable doubt instruction. Your objection is noted, Ms. Bowen, I am going to give the first two sentences.
MR. GRIFFITH:

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Your Honor, as long as we

are on the Portillo reasonable doubt instruction, to me it reads like a prosecutor's dream. I object to it. I

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understand that this is what the Court is saying we should use and it's instructing us to use it.
to it.
THE COURT:

I object

The objection is also on the The reasonable

record and noted.

I will give Portillo.

doubt instruction which includes the Portillo words from the Court of Appeals, Supreme Court.
All right.

Counsel, I believe we are now

at the point where we need to deal with the instructions which are directly tied to the charge that Mr. smith has been prosecuted under. And that begins with the The

requested instruction by Ms. Bowen which reads:

State has charged the Defendant with administering a dangerous drug. The crime of administering a dangerous

drug requires proof of the following three things:
1.

The Defendant

administered a drug; and,

2. 3. drug.

To another person;

The drug administered was a dangerous

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Ms. Bowen follows that with the separate definition of the word administer, which is taken right from the statute 13-3401, subparagraph 1. Administer

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means to apply, inject or facilitate the inhalation or ingestion of a substance to the body of a person. Ms. Bowen then follows that with another definition of,
"dangerous drug". I won't read it but it's the same as

what you had submitted in your requested instruction, Ms. Bowen. I take it that, Mr. Griffith, that you object to the Jury being instructed on a violation of
13-3401 -- actually 3407, excuse me, Administering A

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Dangerous Drug because you believe 13-1205 is the more correct offense for which Mr. smith should be charged, and for which the Jury should be instructed on. MR. GRIFFITH:
THE COURT:

Yes, Your Honor.

Why don't you go ahead then

with your argument on, on the basis 13-1205 should be the offense instruction that the Jury should be instructed on. MR. GRIFFITH: Okay. Your Honor, I don't

want to confuse you, but it sounds as though I have. Let me just say that I have submitted my memorandum and I'm going to stick pretty much with that. But I don't

believe, honestly, that 13-3407 should get to the Jury.

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And so, as we are discussing jury instructions prior to
arguing under Rule 20, kind of feels like we are jumping the gun a little bit.

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But I understand it's the

appropriate way to proceed.
13-3407, when read in light of the

definition of facilitation contained in the RAJIs at 10.04 where facilitation is defined, there is no
possible way that Mr. smith can be convicted of 13-3407, because he did not facilitate. And as I indicated in my

memorandum, and the Court is well aware, probably more aware than counsel is, of how you interpret a statute.

I went back to Sutherland and looked at
some of the means by which you're supposed to interpret a statute. facilitate. And in the Criminal Code facilitate means It means that the person who was committing

3407 is actually committing the crime of facilitation. And as I indicated in my memorandum, the Court has
indicated an unwillingness to apply that definition -

or, hesitancy I should say.

But I think it's clear when

you start interpreting the statute that facilitate means facilitate.
When you look at 3407, which I have set up

on this board for the Court, when you look at 3407, you know, it's possess a dangerous drug, possess a dangerous drug for sale, possess equipment for manufacturing a dangerous drug, manufacture a dangerous drug, administer

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a dangerous drug.

These are all drug offenses.

These

are all offenses that talk about either manufacturing or distributing, somehow trafficking in dangerous drugs. And administer in this case means to assist the person in taking the drug, to assist them injecting it, assist them by applying it, assist them in injecting it. That's what it means. It means to assist this person, A crime

just like the other crimes are manufacturing.

makes it easier for somebody to violate the law, making eq~ipment which makes it easier. This is simply, make And you

it easier for someone else to commit a crime.
look at 6 and 7 and they are the same, all these

offenses -- don't use dangerous drugs, don't make it easier for someone else to use dangerous drugs. That's

pretty much what that statute is.
1205, on the other hand -- the Court is aware of 1200 series deals with assaults. That's what

we have here.

We have an assault, unlawfully

administering intoxicating -- I mean, dangerous drug. It's an assault. We have assaultive-type behavior. smith mayor may not have are We

are not concerned that Mr.

given a dangerous drug to the child. What we concerned with, he may have injured a child or incapacitated a child. That's an assault.

That's what

he should be charged with, not a drug offense, not a

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manufacturing or possessing or using dangerous drug
offense. THE COURT:

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Okay.

Thank you, Griffith.

If you want to rebut Ms. Bowen's argument you can.
Any argument, Ms. Bowen?
MS. BOWEN:

Yes, Your Honor.

First of all, whether or not Mr. smith ultimately could have been charged with more crimes or a different crime is not relevant to the Court.

It is

often the case that a particular set of facts may fall under more than one Statute such as in the cases of

molestation versus sex conduct, sex conduct versus sex assault, molest versus sex abuse. How the State chooses

to charge a crime is its own discretion, and they are left to fulfill the burden of what they ultimately did charge. Secondly, Mr. Griffith argues that there is a result from this crime that could have also been charged such as an assault, and ultimately the administration resulted in assault. also. That is irrelevant

Whether he could have had a second charge filed,

Mr. Griffith is correct in this particular, particular case, facilitate, means facilitate. What I want to distinguish for the Court, it does not mean the crime of facilitation. Facilitate

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means to make easier versus the crime of facilitation,

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which Mr. Griffith has been arguing to the Court. the crime of facilitation, it is a crime and not a
definition, therefore, prima facie it does not apply as to be inserted into the 13-3407 case.

In

In order to reach

that conclusion, you would have to insert it and see if
it makes sense.

If in fact you could insert that

definition into the crime with which Mr. smith has been charged, two illogical results would occur: First is

that you would have an internally inconsistent charge in

that it says it's a class 2, but by virtue of the
definition of using the crime facilitation within that

crime, you would have a sub crime which was designated,
should be a class 3 or less. inconsistent. So it would be especially

And second of all, it would make the two statutes themselves redundant, which is not necessary. Another way you could determine whether or not it's accurate to stick that definition of crime of facilitate to the crime of facilitate this crime, to ask yourself:
Can a person commit the crime of facilitating the

administration of a drug. yes.

And the answer to that is

You cannot have that definition inserted into the In this case, if Mr. Smith wanted

body of that Statute.

to drug Rachel Tseko but he didn't have the drug and he

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went to his brother and asked him, do you have any

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Halcion, and his brother knew that he was going to be giving him that drug for the purpose, Mr. smith could give it to Rachel, his brother would be charged with a crime of facilitating Mr. smith with administering a drug. And there are two separate crimes, two separate
It is Mr. Smith's brother who would have that

criteria.

knowledge that he was intending to aid another person, Mr. smith, with committing Administering A Drug. No

knowledge is required of the victim in either matter.
Defense counsel has also argued that consent is required to commit the crime of Administration Of A Drug. And in none of those other

instances would apply, inject, inhalation is it required
the person cooperate or aware they are getting the drug.

If a person is sleeping, wanted to commit murder, with
an overdose of Halcion, they could do it. That person's

consent being required to the victim is not inherent. It's an element Mr. Griffith is adding when you use facilitate, when you make it easier. If it's not

required for the injections portion of it or application

of it, you're now saying the State would have a different burden they choose to show the person facilitated, made it easier for the person to get that drug.

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As the facts of this case show, it was

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obvious Mr. Smith made it easier for Rachel to get the drug into her system, which she had no knowledge of it, no consent. It is obvious you can commit this crime
The plain meaning of facilitate means

without consent. make easier.

When you insert it into the definition of No additional mens rea, no

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this crime it makes sense.

change in the degree of the crime, still able to be
facilitated by someone else. Under that basis, I believe the State has

correctly charged Mr. Smith, also has proven the
elements of that crime and that the Court should not seek to alter the requirements of that statute as

Mr. Griffith suggests.
THE COURT: All right. Thank you.

Mr. Griffith, your last word? MR. GRIFFITH: Thank you, Your Honor.

Under any definition of facilitate, even if you use the assist definition, it requires the intent on the part of the person being assisted.

In this case they can in no

way say that Rachel Tseko was assisted in getting dangerous drugs into her system, nor was it made easier for her to do that. She was not attempting to do that.

Her actions were not facilitated by Mr. smith's actions. Thank you.

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I appreciate both

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sides' arguments. Mr. Griffith, I find the state does have the discretion to choose which statute to allege a violation given a particular set of facts. I submit

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that the facts in this case allow for the application of either statute. The state has chosen to bring and

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charge a case of violation against Mr. smith under
13-3407 (A) (5).

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The other Statute, 13-1205(A) is not a lesser included.

You so much acknowledged that in your

memorandum.

So it doesn't come in as lesser-included.

It has additional elements, and does not fit 13-3407(A) (5), nor does it come in under an application that you urge due to the presence of the word
facilitate. The Court does find that the word

facilitate as contained in the definition of administer, means to make easier and not to commit the crime of facilitation. For those reasons, Mr. Griffith, I am not

going to give the Jury the -- your requested instruction on a violation of 13-1205, and your record is noted. Let me ask this, Mr. Griffith and counsel.

You, Mr. Griffith, were the presenter of the other definition of facilitate, which means to assist or make

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easier.

Now that I have ruled, are you still objecting

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to that definition being given?
MR. GRIFFITH: I would ask you to give -

as to assist, if you are not -- I'm requesting
specifically the RAJI 10.04, which is the facilitation definition.

I take it you're denying that?
THE COURT:

That's correct.

I'm denying

the definition of facilitation as a crime. MR. GRIFFITH: Then you are also

denying -- and I'm just making a record here -- you're also denying my request which was that Black's Law definition be given?
THE COURT:

Is your Black's Law

definition, which is what you submitted which is "facilitate" means to assist or make easier. MR. GRIFFITH: No, Your Honor. The

facilitation was included on the back of your memorandum
on interpreting 13-3407 and 1205. THE COURT:

Oh, all right. So I'm requesting that

MR. GRIFFITH:

the instruction be that facilitate means to make it easier for another to commit a crime.
MS. BOWEN:

Also, for the record, your

Honor, what Mr. Griffith has submitted is not a definition of facilitate. It says in its paragraph,

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facilitation, which again, I believe is referring back to the crime of facilitation and not the word
facilitate.
THE COURT:

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All right.

Well, let me make
Counsel,

sure I understand where you both stand.

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Mr. Griffith, you're saying facilitate, given my denial
of the definition of the criminal offense facilitation, you're saying facilitation as offered by you from the

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Black's Law Dictionarv should be given, or are you saying that facilitation -- facilitate means to assist, period?
MR. GRIFFITH: another to commit a crime. THE COURT: Easier or make easier for

That's what I'm asking for.
Ms. Bowen, you have what

Mr. Griffith had submitted originally on the definition

of "facilitate" means to assist or make easier. objecting to that?
MS. BOWEN:

Are you

I object, Your Honor.

This is

a Webster's version of the definition of facilitate.

There is no criminal law definition of facilitate. Everything Mr. Griffith suggests when he references
helping another is, again, the definition of facilitation and I ask the Court give the definition of facilitate, which means to assist or make easier. MR. GRIFFITH:

That was a definition made

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up by Gregg Griffith. MS. BOWEN: it myself. THE COURT:

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It's in Webster's.

I checked

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I had asked you last week

where you obtained the definition of facilitate, to assist or make easier. I didn't know if you had a

chance to give your answer. MR. GRIFFITH:
THE COURT:

I didn't.

I'll go ahead, accept the

representation by Ms. Bowen, facilitate means assist or

make easier, also in the Webster's definition.

And I'm

going to give the definition of facilitate as it's already typed out in the sheet. Once more, facilitate I'm denying

means to assist or make easier, period.

your request to add make easier in the commission of a crime.
All right. I have the knowingly

instruction that my secretary provided and typed up one

for each you.

Thank you.

The verdict form would be a single verdict form based on the offense as obtained in the indictment, Administering Dangerous Drugs with a guilty blank space
and not guilty blank space. Any other objections or

records you need to make on the instructions?

MR. GRIFFITH:

No, Your Honor.

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I do have a question though, Your Honor.

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I'm not going to be precluded in my closing argument from arguing 1205; am I?
THE COURT:

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Let me back up for something.

I just noticed the verdict forms should be in the

singular, I believe, Administering Dangerous Drug. That's what the indictment has.
on the verdict form counsel. Okay. So I'll white-out the S

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Mr. Griffith, you want to be able

to argue to the Jury that your client only committed a
violation of 13-1205, Unlawfully Administering A

Dangerous Drug? MR. GRIFFITH:
THE COURT:

Yes.

Ms. Bowen, the State's

position on that?
MS. BOWEN:

I believe that's incorrect,

Your Honor, because by virtue of the fact the State has not adduced any evidence to support that charge, the Court has already determined it's not a lesser-included, Mr. Griffith in reality included for a jury notification and not a verdict, a not guilty verdict. I believe it

allows him great leeway and there is nothing to substantiate his claim, with no testimony that's the way it should have been charged. It allows the State to get

into tangential -- the State charges the way it does.

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It's not relevant, doesn't aid the Jury, and certainly

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not supported by the testimony.
THE COURT:

Mr. Griffith? That's the only charge we

MR. GRIFFITH:

have heard any testimony about is 1205.
THE COURT:

Okay.

MR. GRIFFITH:

If the prosecution is

saying that I have to introduce evidence, or if the

Court is going to rule I have to introduce evidence,
I'll make an offer of proof. I can do that right now.

I can call Detective Powers back to the stand and ask

him if in his police report does he not request a charge
of 13-1205, only through some sort of mix-up the prosecutor's office came up with this charge. I would

ask him, isn't it true, sir, you asked for a charge of
13-1205. requires. THE COURT:

I can make the evidence portion if the Court

All right.

Mr. Griffith, your

request to be able to argue to the Jury in closing argument that the facts support a violation of the assault, the assaultive offense of 13-1205 is denied. The state has elected to bring the charge of Administering A Dangerous Drug. It's not a

lesser-included as I ruled, and you would in fact be

arguing outside the instructions on the law as I have

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found them to apply.

So your request to argue 13-1205

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offense to the Jury is denied. Anything else?
MS. BOWEN:

The record is noted.

I have two things, Your Honor.

First of all, as to the verdict, you indicated you're taking the S off of drugs for the purposes of its
reading.

I suggest the court add the pronoun, A, charge It's not there

of Administering A Dangerous Drug.
currently. THE COURT:

Any problem with that cosmetic

change, Mr. Griffith? MR. GRIFFITH:
THE COURT:

No, Your Honor. Okay. I'll send that back to

my -- I'll make that change.
Thank you. MS. BOWEN:

The other thing, Mr. Griffith

informed me, in fact Kay smith has made it into town and
she will be testifying. Asking him for the statements

she will be testifying, he indicated the date of her

return, and that it was within the knowledge of the
Defendant that she was aware of the advance of monies to Rachel Tseko, and an explanation as to why she drove her car to and from Texas. What I ask this Court, that if any evidence at all regarding Mr. Smith's character comes

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out, that the state be given leeway to enter into his

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entire private, personal and criminal history, and that
I be allowed to impeach Ms. smith's knowledge of the advance on monies, based on the fact and the State will

make an offer of proof, if this Court is desirous of
that, that the house in which they live was 11 days from

foreclosure at the time of this event, and that if Ms. smith is saying she was aware Mr. smith was spending
$400 of rent money on this girl when the house is 11 days from foreclosure, I'd like to know if she was aware of it on the date of this crime, July 7, 1994. Detective Powers had contact with Ms. Smith and she was in a personal state of outrage, the police being there,

14 15 16 17
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seeing Rachel Tseko at her house.

She was not Between July 7,

interviewed by the police at that time.

1994 and June 20 of 1995, the second time Mr. smith is arrested, she makes no contact with the police. does not offer any statements to the police, does not seek to give them this information that she knows. The She

first time they have this information from Ms. smith is
on June 20, 1995. That's the first time she supposedly I would like to

knows about all this information.

confront her with the fact her first time version of
events she is relaying to the police or anyone is practically a year after the event.

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Additionally, there was a conversation between Mrs. smith and her husband taped from the jail.

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Mrs. smith indicates to the husband she has never met
Rachel, she doesn't know what she could possibly
testify.

I'd like to impeach her.

Now she is saying

she has knowledge of her, she is aware of this prior transaction at a time subsequent to that. earlier she has no idea who this person is.
THE COURT:

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8

She indicated

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Okay.

Mr. Griffith, it would

have helped me if you would have asked to come in earlier to talk about any issues relating to Kay smith, since you believed she wasn't going to be testifying. We are running late in bringing the Jury in. Go ahead, respond to Ms. Bowen's position.
MR. GRIFFITH:

Your Honor, she is also -

Ms. smith is also going to testify that in fact she has not met Rachel.
She did see Rachel on the phone the day

she came back, and the day of this alleged incident, had little or no contact with her. And then, I understand

Ms. smith is not to give any character evidence on
behalf of her husband.
THE COURT:

Okay.

Let me address these -

thank you -- in as much of an order as I can, in the way they were to presented. In response by Ms. Bowen, should you open

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the door on the character of your client, Mr. Smith, my pretrial or motion in limine rulings will apply, and the State will be allowed to introduce evidence to counter
the character evidence introduced by Ms. smith. Should

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you introduce statements or evidence, testimony, to the effect, Ms. Kay smith was aware of a monetary advance by her husband Mr. smith to Rachel, then the State would be entitled to introduce and question Ms. smith as to
whether she was aware that the marital home in Fountain Hills was a few days away from foreclosure.

I'm not clear on the one-year timeframe
you argued between July '94 and July '95, Ms. Bowen.
MS. BOWEN:

On July of '94, when this

incident occurred, Ms. smith indicated basically she didn't want anything to deal with him. They didn't

interview, talk to her.

Mr. smith is arrested again in

June of '95 for the issues that are coming up on the other cases that are not -- that are before this Court,

not in this trial.

At that time she has contact with

the police again and they talk with her about, about this incident. All I'm saying, between July 7th and She does not make it known

June 20 she has information.

to the police.

The first time she talks to the police

is June 20th of 1995.
THE COURT:

You want to ask Ms. Smith,

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isn't it true, Ms. smith, you never spoke to the police
about this July '94 incident until June 20, 1995? MS. BOWEN: Correct.

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

During that time you

have had the opportunity to discuss this with your husband and discuss what he basically has asserted as to
his knowledge of the case.
THE COURT:

As to context and credibility,

the State's request to question Ms. smith with regard to the time lag before providing this information from July '94 to June 20, 1995, is granted. MR. GRIFFITH: Your Honor, I don't have

any objection as long as that's the way it's phrased.
She is under no obligation to go to the police, in fact, and she is a defense witness and wouldn't be expected to go to the police.
THE COURT:

That's a valid area of

cross-examination.

As to the import or view of the term

met, whether Ms. smith has ever met Rachel, the fact that Ms. Smith, Ms. Kay smith saw Rachel or will testify that she saw Rachel on the phone in the marital home on July 7, 1994, mayor may not qualify as a personal introduction meeting. Nevertheless, it is an incident

of prior visual contact with Rachel and the State may question and cross-examine Ms. smith regarding that July 7 visual impression, visual contact with Rachel in this

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case.

Is there something else?
MS. BOWEN:

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Just for the record,

Mr. Griffith had asked previously that the State provide copies of the transcript for the Jury. The State has

4 5
6

done that, also provided a fresh copy to the Court and defense counsel, and the exhibit -- I let Mr. Griffith

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know, make sure the redactions the Court has indicated previously were corrected. I also noted, as you can see

from this transcript, minor inconsistencies with the transcript. In one instance the word just may not have And a word a person

been placed in the transcript.

says, any, should have been anything, numerous minor
changes.

Let Mr. Griffith review the transcript.

Nothing I feel of substance changed from the transcript. I did change, make the corrections, make the more

accurate transcript that will reflect what the Jury will
be having. THE COURT:

Mr. Griffith, have you

reviewed the copy of the transcript statement transcript interview statement of your client?
MR. GRIFFITH: it today about 1:15 or 1:20.
THE COURT: All right.

No, Your Honor.

I just got

Well, between now

and the time it's presented to the Jury as an item of evidence, you can review it. Right now I will rely on

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Ms. Bowen's representation that any differences are not of a substantive nature. Counsel, do you need any more break before we bring the Jury in?
MS. BOWEN: Mr. D'Asaro is here. 1:30.
THE COURT:

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

I'm checking to make sure

He indicated he would be here at

Are you still bringing in the

custodian of record from the pharmacy? MR. GRIFFITH: Custodian of records from

the pharmacy, unfortunately, is back east somewhere. What we have is a custodian of records from the medical doctor as she -- that's the, that's the information that

we gave to Ms. Bowen, to the Court last Friday.
she is the one that is here. don't know. She may be here now.

And so
I

She is ready to go.
MS. BOWEN:

Your Honor, last week, I don't believe

Thursday, we had argument at the bench.

it ever got to the record.

The State objects to the

presentation of this witness, not on the basis, that if the custodian of records, whoever it is, bringing the information, but Mr. Griffith objected or said it should be allowed in because the State was allowed to bring in a custodian of records to bring in medical records. The

medical record was always known to the defense counsel,

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always the intention of the state to get the entire
record into evidence.

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Mr. Griffith has had the They had

opportunity to cross-examine the doctors.

this, this theory about second prescription, never indicated anybody would be testifying to that information. He has now at the last moment presented

somebody to get in a piece of evidence never disclosed and the testimony was never disclosed.

And, in

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addition, somebody completely different than he even notified the Court back on Thursday. On those bases,

the state asks the Court to reconsider the previous

rule, not consistent on the same basis the state got in the medical records.
THE COURT:

Do you want to introduce the

custodian of records of Mr. smith's personal doctor? MR. GRIFFITH:
THE COURT:

Right.

That doctor prescribed another

prescription of the MR. GRIFFITH:
THE COURT: Halcion.

-- Halcion? Yes.

MR. GRIFFITH:
THE COURT:

Thank you.

All right.

MR. GRIFFITH:

By the way, the State's

allegation of non-disclose -- I take that to mean only to her because, of course, she wasn't familiar with my

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conversations with Mr. winter at all.
MS. BOWEN: There is nothing in my file to

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indicate those statements would be coming in, no statements from any of the witnesses of defense counsel,
nor has this person been listed specifically by name or

custodian of records for either the pharmacy nor the doctor's office.
THE COURT: Thank you.

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We did have a

discussion off the record.

I asked the State how many

days prior or how far prior to the start of trial was the State's counsel aware that the doctor who examined
Rachel would be unavailable because he was out of the
country.

You told me approximately one week prior to I then said that the

the start of this scheduled trial.

defense counsel could bring in the custodian of records from the pharmacy. unavailable. That custodian apparently is

Instead, the defense counsel is asking to

bring in the custodian of records for Mr. smith's personal doctor for a showing that another prescription of Halcion was prescribed for Mr. smith.
objection is noted. The State's

It is ordered that the custodian of

records from the doctor's office of Mr. smith may
testify. All right.

I'm going to go off the bench We will have the Jury come in.

for just a short minute.

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I'm going to show the instructions to my secretary. can be making extra copies. a couple of minutes. MS. BOWEN: Your Honor, we have the same

She

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We will be starting in just

problem we have had previously.

Since this witness was

not provided on the previous list of witnesses, when
that person testifies, Ethel Willis, you'll need to ask whether anyone on the Jury knows her.
THE COURT: Thank you.

And the name of

the office where she works, Mr. Griffith or Ms. Bowen,
is what? MS. BOWEN: O'Brien. Clinic or

She works for Dr. William

The place she works is Fountain Hills Mayo

MR. GRIFFITH:
THE COURT: MS. BOWEN:

Yes. Fountain Hills Medical Clinic?

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Mayo. Mayo Clinic; is that correct?
I believe so.

THE COURT:

MR. GRIFFITH:
THE COURT:

I'll ask the Jury if they know

that person. Okay. real quickly. Counsel, two housekeeping matters

The treatise article which was marked

Exhibit 33, which I modified to only include the table of contents.
And the articles, the pages 822 to 824, by

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my clerk's proper standards needs to be made into a
separate Exhibit 33A to show that 33A would be the

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exhibit that actually goes to the Jury.

Exhibit 28,

which is an exhibit that you had offered, Ms. Bowen, has MS. BOWEN:
THE COURT:

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That's the oneOnly has page 2 which was I would propose the same

offered into evidence.

numbering of exhibit that goes into the Jury, 28A which would only have page 2.
MS. BOWEN:

No objection, Your Honor.

MR. GRIFFITH: THE COURT:

No objection, Your Honor.
All right.

Thank you.

Counsel, as soon as the Jury comes back in we will get started. (Break)
THE COURT:

This is the continuation of

the trial in the case of state of Arizona versus William

Floyd smith in criminal number CR94-92467.

The record

will show the presence of both counsel, the Defendant Mr. Smith, and case agent, and the court reporter and court staff as well as the Jury being present. The witness who was testifying last Thursday prior to our recess is about to take, or is taking the witness chair again. Members of the Jury,

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I'm sorry for the delay getting started today.

I'm

2

hopeful the rest of the day will go fairly smoothly on
schedule.

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Are counsel ready to proceed?
MS. BOWEN: MR. GRIFFITH:
THE COURT:

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Yes, Your Honor. Yes, Your Honor.

We will continue with the

balance of your cross-examination.
Go ahead,

Mr. Griffith. Thank you, Your Honor.

MR. GRIFFITH:

J 0 H N

D ' A S A R 0

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

C R 0 S S - E X A M I N A T ION BY MR. GRIFFITH:
Q.

(Cont)

Sir, remember we were talking about the

little experiment you did regarding the discoloration of

the cider due to the presence of a Halcion tablet?

A.
Q.

The experiment I did at the lab?
Yes.

A.

Yes.

Q.

When you did do that experiment was it

after my opening statement?

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A.
statement Q.

I'm not sure when your opening

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When did you do your That would have been done on -- let me

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

A.

look at my notes to recollect.

Q. A.

Please.

Let's be accurate.

That would have been done on Thursday, so

Q.

What is the date on that, sir?

A.
Just Thursday. Q.

Well, I don't have the date written down.

Last Thursday?
Last Thursday would have been -

A. Q.

Sir, are you familiar with any scales by

which you measure the clarity of a liquid?

A.

I'm not aware of scales which are used on

a routine basis.

Q.

You're not aware of any chemical names for

any -- any names or scientific names of any tests for clarity a liquid?

A. Q.

Not, not any official type names. And you didn't actually poor the cider

into this mug? A. Q. That's correct. You wisely chose not to taste the cider;

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correct? A.

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That's correct.
MR. GRIFFITH:

I don't have any other

questions, Your Honor.
THE COURT:

Thank you, Mr. Griffith.

Your redirect, Ms. Bowen?
MS. BOWEN: Thank you.

RED IRE C T BY MS. BOWEN:

E X A M I N A T ION

Q.
treatise.

Now, you were asked questions from that
Do you recall that?

A. Q. A.

The excerpt from the textbook?
Exhibit 33.

Do you recall this document?

Yes, I do.

Q.

And part of the information you were asked

about was regarding the absorption time and the effect time of a particular drug?

A. Q.

That's correct. Is the absorption time of a drug effected

by whether or not there is food in the stomach?

A. Q.

Yes, it is.

And how does the presence of food in the

stomach affect the absorption rate?

A.

Generally speaking, the presence of food

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in the stomach can delay the absorption of, of a drug. And the way that is, is that the drug has to diffuse or go -- once it gets into the colon has to go through some membranes. If there is food as well present that can

2 3

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retard or slow down that process.

Q.

And the reverse of that would be true, if

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there was no food in the stomach it would take more
quickly?

A. present. Q.

It would be quicker than if there was food

And the levels at which a person reacts to

the drug, which would be affected, based on the dosage

the person took?

A.
Q.

That's correct.
One of the things that slows down

absorption would be the fact the drug itself has to be

broken down by the stomach?

A.
Q.

That's correct. The physical component of the drug itself,

actual breakdown of the capsule or tablet?

A.

As I explained, the typical prescription

medication in pill form that is swallowed generally whole, and that then has to be broken up inside the body, starts in the mouth when it's chewed. Once it

gets into the stomach there is further metabolism that's

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--

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-

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-

--

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38

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done to break down

that substance.
If the tablet had been crushed, that

2
3

Q.

process would be already accomplish by the crushing of the tablet prior to ingestion?

4
5

A.
Q.

It could

have been a part of that whole

6
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metabolism of that tablet.

And if the tablet had already been

physically broken down by being crushed, would it
decrease the time it would take for that pill to take affect?

A.
broken done.
Q.

It possibly could, having been already

Are you aware what, what it is about the

stomach aids the digestion of food?

A.

Gastric juices or enzymatic discretions

break down various types of food products.

Q.
A. highly acidic.

Are those acids?

stomach itself is an acidic environment, A lot of those enzymes that are present Therefore, the

work better in that kind of environment.

stomach tries to maintain an acidic environment.

Q.

If the Halcion tablet will be dissolved in

acid medium, would that also decrease the time for the drug to be absorbed, because part of the process had been accomplished by the dissolving of that tablet? Document 33-23 Filed 08/11/2005 Page 39 of 40

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A.

I don't know

if I can answer that.

2
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Q.
and again,

Now, the article to which you referred,

Exhibit 33, those tests were done on adults;

correct?

A.
Q.

That's correct.

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Does that article reference

at all any

tests regarding Halcion and the affect on children?
A.

Meaning under
Correct.

18?

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Q. A. Q.

No, it does not. One of the factors that influences the

affect of a drug is a person's body weight? A. Q. Yes, it does. And the dosages of Halcion, that's entered

for an adult weight; is that correct?

A.

Right.

The recommended dosage of the

Halcion is based on the studies that are done with adults, so, you know, the doctors have some leeway as far as the amount they can prescribe for a particular
individual.

Q.

If a person has lower body weight than is

expected for that dosage of drug, would the affect of
the drug be more potent for that person?

A.

In theory, yes, but it's possible.
You indicated

Q.

briefly that one of the
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