Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

2 II (FIRM STATE BARNo. 14000) 3 4
II

AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL

II

5 II TELEPHONE: (602) 542-4686 6 7 8 9 10 11
12 13 14 15 16 17 18 19 20 21 22 23 24
II

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

ATTORNEYS FOR RESPONDENTS

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

CIV 04-573-PHX-FJM (MS)

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

EXHIBIT J, PART 4, PGS. 120-159 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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that she describes.

So you don't have any other mugs

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.

like that particular one?

Q.
cabinets.

Yeah.

I've got another one in the

A.
Q.

Yeah, right. I know there is at least two there. I had

four at one time. A. Okay, okay.
So, then she asked if she

could have the sparkling cider, I guess it is apple cranberry or something. Okay. Did you offer her

anything else to drink prior to that, do you remember?

Q.

No.

I felt -- I had been hungry all day

fo~ some hot chocolate;. even though it was about 110 degrees outside~

He was laughing.

So I asked her if

she wanted some hot chocolate, and she said no.

A.
cider?

qkay.

So, who did what as far as the

I mean, did you pour it in the glass for her and

hand it to her? Q. her. Yeah. I poured it right there in front of

A.

Okay.

Where was she when you poured it,

when you gave her the chocolate -- I mean, the cider? Q. Standing there beside me, I guess. Then

you were both talking and they couldn't get it. Because I just opened it. All it was, it

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was not a cork kind of thing. with a bigger bottle opener.
A.

You just flip the top off

So your best recollection was she was

standing there anyway Q.
A. Q.

Yeah. Okay. She was at least in the same area? Okay. And you were talking about being in

A.

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the kitchen; right? Q.

I think we were in the kitchen, yeah. Did you recall putting it in the freezer

A.

prior to pouring it just to get a little colder, or was that -

Q.

No.

That was afterwards.

A.
while? Q.

After it had been sitting out there a

After.

A.

It had been sitting out for a little bit,

got warmed up, so you put it in the freezer to cool down, is that how that happened or do you remember?

Q.
remember.

Didn't think I was going to have to

A. Q.
opened.

Yeah. I would think that -- I know it was

I poured her some and put it in the freezer,

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and it froze.
non-alcoholic.

It was starting to freeze.

It was

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So I took it back out of the freezer and

set it out for a while.
A.

Okay.

That was after she had drank the

first glass or before, do you remember that? Q.
A.

That was after she drank the first glass. Okay.

And then do you remember where she Had she gone out the

was when she was drinking that?

other room -- I'm sorry -- or was she still there or -

Q.

No.

She was getting ready to dust and we

already straightened the furniture out, and she sat down on the sofa.
A.

Um hum.
Just taking her usual break.

Q. A.
drink.

Okay.

That's where she had the first

Q.

Right. Okay. Then I assume she finished that at

A.

some point in time? Q. A. Q. A. Q. A. Yeah. Did you drink any of the same stuff? I don't like crap. Did you have anything to drink? I was drinking beer. Who buys it? If you don't like it who

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buys it?
Q. A. Q.

My wife buys it for my daughter. I see. And then -

It's been there for some time, so I don't I'm not sure

know, along with that other bottle. exactly how long it's been A.

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When she had the second drink, then she

was out in the living room on the first, so how did she
get the second drink; do you remember?

Q.

The best I can remember is that I was

working in there and she said she MS. BOWEN: I'm sorry.

He misread the

transcript.
THE COURT:
MS. BOWEN:

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Pardon?
He's misread the transcript.

He said that I was walking in there, not working.
THE COURT:

Retrace it. Sorry.

Reread it.

MR. GRIFFITH: BY MR. GRIFFITH:

Q.

The best I can remember, I was walking in So I took it

there and she said she wanted some more. out of the freezer. freezer I think. A. Um hum.

I had already taken it out of the

Q.

Again, I don't know the sequence of things

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because I don't worry about it -- I didn't worry about it. But I know it was almost still frozen. That much I

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remember.

And I poured her some more and put it back in

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there, in the refrigerator.
A. Q.

Where it was when I found it? Um hum. Was there any consumed since then, do you

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A.

remember, or is that the last time anybody Q.

No.

She drank it all, all that was gone.

A.

That day? Uh h~h.

Q. A.

okay.

Did she d~ink more than two glasses
I

or -- because that's -- you know,; of course, a mug will hold more than a standard wine glass if you were
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drinking it like wine. Well, she was drinking it out of the Q. bottle too? A.

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Okay. Q. Iim sure it was more than A. She was back -- you took her back out and she was in the living room. do you remember? Where was she seated then;

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Q. A.

On the sofa. On the sofa. Was she ever looking at your

videos, because you remembered, you mentioned she -

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Q.

She wanted to watch -- I couldn't remember

what it was, a toss up between Passenger 57 and she wanted to watch that while she was doing her dusting and
stuff.

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And Under Siege.
A. Okay. When, after she had that second

drink, did you remember her making any statements or anything then?
Q.

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She mentioned that she was feeling drowsy, I know she was acting -- looking kind

some time later.

of goofy -- looking like of goofy, like her -- she was

grinning.

A.
Q.

Grinning? Yeah. Like if somebody just grins at you,

looks at you and grins.

I noticed her grinning at me.
And she said, I don't know.

I asked her what was she grinning about.
well, can you physiologically get drunk?

I mean, I don't try to get psychologically drunk.

But

can you psychologically convince yourself that you are drunk? I said, I don't think so. And that's where the

conversation was about.
A.

What do you think she meant by that --

'

like she was feeling?

Q.

I know she was tired, because she had been

up late the entire night. A. Um hum.

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She was just being a goofy teenager as far Half the stuff they say doesn't make

as I could see. any sense. her father.

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She would get on and off the subject about What a lunatic. I think she calls him a I don't know. But he was

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psycho instead of a lunatic. crazy.

Her mother left, because -- without letting him

know because she was afraid he was going to beat her up or something. And, yeah, he was always walking around

carrying guns in the house or things of that nature. Just a problem more than anything else.

A.

When she -- okay.

After she apparently

asked you about feeling psychologically drunk -- and

what time was that?

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Q.

No idea.

I would say it was within an

hour or maybe an hour and a half after we got there.

A.

Okay.

So sometime between, say, 12:00 or

sometime after noon that you picked her up, you went and stopped at Adobe and went to the house, so you would say it was maybe 1:00 o'clock when you were at the house?

Q.
o'clock.

I would think we were at the house by~1:00

A.

Okay.

And within an hour of that, no

later than 2:00 o'clock anyway, that she sort of had a problem after taking that second drink?

Q.

Well, now you keep referring to that.

I

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don't think it had anything to do with the drink.
A.

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Well, okay, let's just say I know it didn't have anything to do with All I know is that she was acting She

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4

Q.

anything I did.

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strange when I picked her up and she was yawning. was very drowsy and she was moving very slow.

I would

have to get on her to do a little bit about -- I had to get on to her a little bit about dusting and I think I wound up moving all the furniture myself, to be truthful with you, at least the majority.

A.

Let me ask you this:

What ultimately

happened to her?

I mean, what did she do?

Q. A.

What do you mean? Well, she was at your house. What time

did she go home? Q. After my wife and kids got home, we were

ready to walk out the door is when they drove up.

A.
Q. A.

Okay.

What time was that?

Between 5:00 or 5:30, sometime like that.

Okay.

Now, before that had -- had she

talked to anybody on the phone or anything?

Q.

She talked to -- now, wait a moment.

Her

brother called and wanted to talk to her.

And I talked

her into laying her head down, because she was acting so goofy for a minute or two. He said, well, just have her

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call back. A.
okay.

So prior to, prior to the phone

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call from her brother, you had already asked her to lay her head because she was not -- she was, like, down not -- however you want to put it, not doing well or
acting goofy or whatever.

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Q. A. Q.

Yeah. Okay.

She was just acting strange.

I suggested that she lay her head down and

relax for a few minutes.

A.

Okay.

And when would you say that was?

Time-wise, I mean that -

Q.

That could been as even as late as 3:00 I don't know.

. I

o'clock, I guess.

A. Q.
A.

Okay.
Yeah.

And she was on the couch?

Okay.

When the brother called, did she -

okay, you said he called, and you said she was laying down and you suggested he call back. Q. A. Q. Yeah. Okay. He did call back later and he said, just

give her a message to call -- what was her name, one of her girlfriends, about some type of meeting, extra-curricular activities that they do after school or

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Whatever.

I'm not sure exactly what it was

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now. thing.

It seemed like it might be some type of fellowship

A.

So he left the message to -- left the

message for her to call her friend.

Q.

Yeah.

Or just wanting that her friend,

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that her friends are wanting to know if she was going to
go with her.

A. can remember?
Q.

Okay.

Did her mother ever call that you

I don't remember.

The best I can remember

there were only two calls. A. Okay.

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Q.

I was on the phone a lot talking to

various customers and whatever.

A.
the phone.

Okay.

Do you have -- you said you were on I

Do you have multiple lines or something?

mean, if you are on the phone can somebody call in and talk to somebody else at the house, or -

Q. A.
Q. hold.

Yeah.

I don't always answer it, but -

What do you have, call waiting or Uh-huh. Customers don't like to be put on

A.

Okay.

So you have call-waiting, so if you

are talking on the phone and I call you, you can

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interrupt the call enough-to see who it is, screen the call, or say I will call you back.
Q.

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Yeah.

A.

Is there anything that you can -- is there

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anyway that you could be on the phone and talking and she could get a call, like, say from her mother or on another phone and talk to her mother at the same time you are talking?
Q.

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No.

A.

It won't work that way.

It's like a All

typical call-waiting, right, okay, understood. right, okay.

So you figure somewhere, it could be as

early as 2:00 o'clock or you say it might have been as late as 3:00 o'clock, she got kind of drowsy. suggest she lay her head down You

Q. A.
Q.

Uh-huh.
-- on the couch. But she didn't. She stayed up? Yep. I don't think she actually laid her She stayed up.

A. Q.

head down until maybe -- she went to the restroom a
couple of times. I remember that.

A.

Okay.

Let me ask you this then:

Did

she -- from the time that you suggested she lay her head down, that you said she didn't do it, until you took her

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home, what did she do?

Now, tell me what she did.

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3

Q.
A.
Q.

She sat there and talked, probably more

than anything else. Sat and talked to you? Yeah. I kept asking her if she was okay.

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I asked her if she wanted me to take her to a doctor because she was acting strange.
A.

Um hum. I asked her if she wanted me to take her And that's when I suggested again

Q.
home.

She said no.

that she lay her head down.

A.
do you recall? Q.

okay.

Was the television on at this time,

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Yeah . Okay.

I think the television was on the

whole time.

A.

What did you guys talk about when,

you know, when you were sitting and talking?

Q.

I think mostly just probably about her

parents, her father.

She talks about him a lot.

It was

a bad situation they had out there. A. Q. She was coherent? Yeah. Like I say she was acting real

strange but she was coherent. , A. Q. Okay. Had she not been coherent I would have
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taken her to the doctor anyway.

I got to admit, it is

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very normal for a teenager to get dizzy or drowsy.
A.

You say it's not, not normal or I would think it would be normal. What finally happened at, when you took I mean, what -- why didn't you just take her

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Q. A.
her home?

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home because obviously she wasn't there for the purpose you took her for, which was to clean the house. Q. done.
Well, I was hoping to get some more things

A.

Well, did she seem like she was in any

shape to do anything?
Q.
.

Yeah.

She wasn't anything totally out of

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line, just -- I felt if she laid her head down for a few
minutes a little while, she would be -- gather her

composure or whatever.
tired.

I figure ~aybe .she was just i

Then she -- I asked her if she was acting -- I

asked her if she was -- cuz she acted like she was dizzy. I said, are you faking it or what. And I said,

if you are, let me know, because she was starting to make me mad, and I told her so. And it was really

starting to make me mad or scared because I don't understand why you're pretending to be like this.

A.

So, did you finally decide you aren't

getting anything done and you just took her home?

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Q.

Yeah.

I finally decided that it was not I woke her up, I woke

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going to be a fruitful afternoon. her up.

I guess it must have been around 4:30 or

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something like that and I think she might have finally gone to or I seen that she was asleep. sleep, Then we go onto side Bi is that right? A. Yes. Q. All right.
Go ahead.

A.

You say that you weren't getting any work

done, so you woke her up ~round 4:30 or so?

Q.

Yeah.

Because she seemed to be relaxing a Because if

little bit more than I thought she should.

she was that sound asleep she wasn't going to get anything done.
A.

So I woke her up.
And she walked out of the house and you

just took her home'then.

Q.

Well, yeah.

Now, about that time my wife

and kids came home and about 30 minutes later I guess we left.

I'm not sure exactly what time my wife and kids

got there.

A.

But they came home and it was about 30

minutes later that you took Rachel home?

Q.

It seemed it was about 30 minutes, cuz I I haven't seen them

played with the kids for a while. for a while.

Rachel was talking to her mother or

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somebody on the phone, so she seemed like she was doing

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okay to me.
A. Q.

Did she call or did her mother call her? I think her -- that's right. Her mother

did call her I think, now that you mention, cuz it was -- that's when she was talking to her mom. Cuz I

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had really only remembered two phone conversations prior
to that.

A.

Okay.

Then did you take her home or did

your wife go with you or what?

Q.

My daughter and my son went with me.

And

she walked right over and picked up either six or eight
of my video tapes to -- c~z she asked earlier if she could take some of them home and watch them with her
brother.

I don't mind.

A.

Okay.

Do you know which ones she took? Okay. Then is that the last time

She has got so many.

you saw her or have you seen her since then?

Q.

No.

I haven't seen her since then.

I

called -- I think I called the next morning, that it
seemed it was about 9:00 or 10:00 o'clock. know. I don't

A.

No.

It was. Thursday.

This is Saturday.

So that would have been yesterday morning that I -- wait
a minute.

You know what, I think that's another time -

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oh, sir, I think maybe that's a continuation of his

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statement they credit it to me.
Q. A. Q. A. Q. Okay.

All right.

Do you know what I'm saying? Yeah. It sound like him talking, not me. Okay, all right. And is that, is that the

end of the conversation regarding the incident itself,

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because then we go into his conversation with her mother; is that correct?
A.

Well -

Q.

Because then you go into, he said, I And then we get into all that

talked to her mom.

business about her mom; right?
A.

Well, there is -- I think I asked him

what -- what -- you know, he -- he mentioned the fact that he called her mother the next day or talked to her mother the next day. But the rest of the interview It may be, you know, in

still deals with the incident.

fragments, but there is certainly more about the
incident.

Q.

Okay.
THE COURT:

Mr. Griffith it's your

cross-examination.

Do you need to continue or not?
I just -- I'd just like

MR. GRIFFITH:

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five more minutes today then we can get back to it tomorrow, if that's all right.
THE COURT:

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continue for the next five

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minutes. MR. GRIFFITH:
All right.

Okay.

Thanks.

So he discussed with you the

allegation of the purchasing the clothes, the allegation regarding the hot chocolate MS. BOWEN: phrasing of the question. Your Honor, objecting to the

That can't be allegations if

the Defendant admits to them happening.
THE COUR'.f:

Correct, sustained.

BY MR. GRIFFITH:

Q.

All right.

He dlscussed!with you a~l

those various items; right?
A. Q.

Yes. He didn't hide or say I'm not going to

answer that question or anything like that?

A.
Q.

No. You later get onto talking to him about

Halcion; correct?

A. Q.

Yes. He indicates to you for all he knew it was

a perfectly legal prescription drug; correct?

A.

Yes, in itself, it is, yes.

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Q.

It is a perfectly legal prescription drug;

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is it not?
A.

Possessed by the person, yes, it's

prescribed for.
Q.

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And then later on in the conversation, you

get back to the answer, that's when Detective Young hops in; correct?
A.

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Yes.
All right.

Q.

And then you offered him a

polygraph; is that correct?
MS. BOWEN: THE COURT: Objection.

May we approach?

Yes.

(Side-Bar Conference, off record)
THE COURT:

The objection is sustained.

It is ordered that the court reporter strike the last question made by Mr. Griffith. Members of the Jury, you are to disregard

and give no weight or importance to the last question made by Mr. Griffith.
THE COURT:

Mr. Griffith, you have about
Go ahead.

two or three more minutes.
BY MR. GRIFFITH:

Q.

All right.

And that was your one and only

conversation with Mr. smith about this incident; is that right?

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A.

Yes.
MR. GRIFFITH:

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All right.

I don't have

any other questions, Your Honor, today.
THE COURT:

Are you finished with your

cross-examination or just for today?
MR. GRIFFITH: THE COURT:

Just for today.
will counsel please approach?

You can step down, sir.
(Side-Bar Conference, off Record) THE COURT: All right.

Thank you.

Members of the

Jury, let me give you some information about the trial and how it's proceeding before we recess for the day.
The information I have from the attorneys

is that it will likely not be a case where the evidence,
including the remaining testimony from the witnesses is
I i

finished tomorrow.

I relayed to you earlier at the

outset of the case that the schedule of the case was to be presented to you for deliberation Thursday, which is tomorrow. The information I have is the evidence may Even if it does, the

come close to finishing tomorrow.

attorneys will need to present their closing arguments to you and I will need to instruct you on the law. will carry us over into next week. I'm fully aware,
I

That

perhaps you may be aware too, that Monday is a holiday

that's observed by the Maricopa County Co~rt system.

So

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we would not have Court on Monday Columbus Day.

We

would have Court on Tuesday, which would indeed be the day the case would be presented to you for deliberation
and decision.

That is the information I have from the

attorneys I need to give you, and I have given you this information in case you need to relay it to your employers if indeed you've already relayed that given

the schedule of the trial. Is there anyone on the Jury who believes this case continuing onto Tuesday is going to create an

extreme problem for him or her given your work situation?
All right.

No one has raised their hand.

Thank you, Members of the Jury, for the attention you've paid today. now. I will recess for the day We will start

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Please remember the admonition.

tomorrow at 1:30 with the continuation~of the testimony, and have a good evening. bench.
Thank you. (Jury left) THE COURT: All right.

I'm going to stay here on the

The Jury has left

the courtroom.

Counsel, Defendant, case agent and court

reporter are still present. At our Side-Bar Conference, Mr. Griffith, you indicated that you wanted to object to the State

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calling the criminalist in this case.

Why don't you go

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ahead and make that objection at this time. MR. GRIFFITH:
All right.

Thank you, Your

Honor.
At this point -- and I'm assuming they are not going to be presenting any more on the issue of chain of custody. What That's another incorrect

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,

MS. BOWEN:

assumption.

I have to establish chain of custody from

him to the criminalist, from the criminalist's
standpoint how he received it, continuing chain of

evidence.
MR. GRIFFITH:
THE COURT:

All right. The criminalist is the

criminalist who is employed by the DPS lab?
MS. BOWEN: THE COURT: Correct. All right.

Thank you.

MR. GRIFFITH:

My objection is not so much

chain of custody after Detective Powers gets it, but here is what we have, chain of custody so far: no testimony about anybody marking the vial with Rachel's name. the sample. We have no testimony about who collected
We have

No evidence in the medical records as to We know

the vial having been marked with Rachel's name.

that after the vial was collected, it was taken and

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tested at Scottsdale Memorial North apparently, and then it was subsequently transported -- we don't know how, we don't know who did it, or why they did it -- to Scottsdale Memorial Hospital. The chain of custody

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between that custodial Scottsdale Memorial North and Scottsdale Memorial Osborn, to my knowledge has not been properly set. That's my objection.
THE COURT:

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All right.

Do the medical

records, Ms. Bowen, have any reference in them to the urine sample of Rachel Tseko being transported from Scottsdale Memorial North to Scottsdale Memorial Osborn?
MS. BOWEN:

Yes, it does, Your Honor. What is that information? It's contained in a read-out

THE COURT: MS. BOWEN:

of the analysis.

It's called a rapid urine drug screen.

And in that read-out of what is contained within the urine results it says, quote, referred to Osborn. And

so at that point it indicates that the sample was being transferred to Osborn.
THE COURT:

All right.

Mr. Griffith, is

your objection still the same, that there is no specific testimony yet as to how the urine sample was transported from Scottsdale Memorial North to the Osborn facility? MR. GRIFFITH: no chain of custody. Yes, Your Honor. We have

We do have a computer printout

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that indicates referred to Osborn.

Doesn't indicate who

did it, how it was transported, who had possession of
it.

All it says is, referred to Osborn.
THE COURT:

That's it.

All right.

Thank you.

Ms. Bowen?
MS. BOWEN:

Your Honor, the medical

record, by virtue of how it comes in, indicates they are accurate and kept within the scope of the record.
Therefore, no -- none of the information in there can be

assumed to be incorrect.

Detective Powers indicated he

received a sealed vial, no information that the vial had been changed. It is not, it is not incumbent upon the

proponent of physical evidence to show there is no possibility evidence has been tampered with. It's only

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

required that sufficient foundation be laid to support the claim that it is what it is supposed to be. Your Honor, the law is clear, the State does not have to show an unbroken chain of custody. What is necessary is that each component of it show that what bhey are testing has its integrity in tact or condition such it can be identified for what it is. criminalist will also identify that the specimen was sealed when they received it and no one had done anything to alter the condition of the sample which it was received. The

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What is imp9rtant, within the scope of the criminalist's testimony, Your Honor, is that this test determines metabolites, does not detect a raw sample. So if someone had added something to it it would be totally irrelevant, because the test only can detect what has been metabolized by the liver transposed from its original state. Any speculation it has been It would be ruled out in

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tampered with isn't relevant.

the test itself when the criminalist -- they identify

the sample from Rachel Tseko, it identifies the time, and it identifies from where they are getting it~ Detective Powers' report, it's referencing the same report number. So the presumption goes in favor of the
I

St~tein this case until the burden is satisfied by

defense counsel to show there is a question as to what has happened to that sample. That cannot be proven.

Both by the test preliminarily, benzodiazapine was detected at the hospital, is a derivative group from which comes the triazolam, which is -- the criminalist found they are interrelated and they cannot be substituted by any other drug. I think on the

conclusion of the criminalist's testimony that the sample could not be altered and the drug found at the hospital is the same drug found by DPS.
THE COURT:

Okay.

You have get the last

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word, Mr. Griffith.

2
3

MR. GRIFFITH:

Thank you, Your Honor.

We

don't have any testimony that somebody took this sample and marked it as Rachel T~eko's, and said, I put this marker on the urine sample and that urine sample then made its way to the DPS crime lab. All we know is that

4 5 6

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

magically appears at Osborn North -- at Scottsdale Memorial Osborn with her name on it. anything prior to that. We don't have

We have no evidence that it's

her sample or what has happened to it.
MS. BOWEN:

Your Honor, it's simply not
At the hospital

correct about not being her sample.

it's marked, the sample he receives is marked.

It

doesn't magically appear.. It's transmitted in the medical report as from Scottsdale North to:Scottsdale Osborn. He can argue as to the weight of it but not to Nothing to indicate the chain of
i

the admissibility.

custody has been damaged. THE COURT: All right. Thank you.

I've heard what

your points are, Counsel.

The objection based on improper chain of custody or a breach in the chain of custody is denied
for these reasons:

There has been testimony that the test vial, the urine sample taken was marked either with the

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name of Rachel Tseko or marked with an identifying number that linked the urine sample to Rachel Tseko by hospital personnel. Detective Powers testified he

2 3 4 5 6 7
8

received it from the lab technician at the Scottsdale Memorial Osborn facility. The computer printout has the

personnel or the person at Scottsdale Memorial North,
referring the -- referring to their sample they had that they had taken from Rachel Tseko to their Scottsdale Memorial Osborn facility for relocation. The detective

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

has testified that the sample was received by him in a sealed condition.

If you want to argue against the weight that should be afforded that, you certainly may, Mr. Griffith. At this time, based on that information,

I do not find that there is a valid basis to preclude
testimony based on a breach of the chain of custody. Yes, Ms. Bowen?
MS. BOWEN:

I have another objection and

ask to have a portion of the testimony stricken and the Jury informed of it. Mr. Griffith, over two objections

from the State, elicited from the Defendant -- from Detective Powers that, isn't it true a prescription for Halcion is missing. I asked for foundation. He never

did lay it, as far as checking with the pharmacy. Supposedly that was supposed to clear it up, whether the

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prescription itself indicated it would be renewed.

You

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indicated, is it part of the Defendant's statement and Mr. Griffith stated yes. It is not in the transcript.

He did not elicit it in cross-examination, cannot find it in the transcript other than the Defendant asserted now at trial. Never established or asserted that any If

Halcion bottle is missing from his house.

Mr. Griffith has the offer of proof where that has been said before I'd like to see it.
THE COURT:

What is your offer of proof

and foundation basis for the question, isn't it true there is a prescription bottle of Halcion missing. MR. GRIFFITH:
I don't believe I was asked

if it was in the transcript, because it's not in the transcript. That's certainly true. Our basis for that,

our foundation for that is after this was all said and done, we checked with the pharmacy, and we have a prescription, I mean, the filled prescription subsequent to the February prescription.
THE COURT:

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How do you intend to introduce

it, if at all, Mr. Griffith? MR. GRIFFITH: Well, if Kay comes we What

intend to introduce it through her finding out.

we -- putting Mr. smith on the stand is going to subject him to -- I may still call Mr. smith.

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Well, Mr. Griffith, you have

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.

every right to decide whether or not you're going to call your client, or perhaps he also has that right to choose whether or not to testify. You also told me at

side-bar that one of your listed witnesses, Kay smith, the wife of Mr. Smith, may not be able to testify because she is out of state at present in Texas. Mr. Griffith, if you do not provide a foundation for the requested question, isn't it true that a prescription container of Halcion is missing, I'm going to grant the State's request that that question be stricken and th~ Jury be instructed to disregard the implication the statement has raised.
I
'

15 16 17 18 19 20 21 22 23 24 25

Anything ,else, Ms. ~owen? I No, Your Honor. MS. BOWEN: MR. GRIFFITH: THE COURT:

Yes, Your Honor, if I may.

And I add to that, because

you're fully aware of the foundational basis for a

leading question that you convey that you intend to connect up later, and counsel cannot testify.
Go ahead.

MR. GRIFFITH:

All right., Your Honor, I

know the Court probably is not in the habit of giving preliminary rUlings. But if Mr. smith takes the stand,

there has been no request for a 609, and I just want to

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uu -------------------------------------- --

-- n

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make sure if he takes the stand, we don't open the door to Texas and to the subsequent charges and all the rest of it.
MS. BOWEN: I think Mr. Griffith already

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9 10 11 12
,

opened that door, Your Honor.

He's asked specifically

that, isn't it true, Mr. smith has been self-employed for ten years. I would like to know how he did that

when he was in custody during that time and he didn't
get released from probation until 1991.

MR. GRIFFITH:

Released from probation but

he was working. MS. BOWEN:
1984.

Was taken into custody in

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

I'd like to know how he was self-employed at the

time he's in custody.
MR. GRIFFITH: THE COURT:
r

He was not in custQdy.

Well, you're saying that

-

well, Ms. Bowen, you ire saying, regardless of my ruling on whether or not a prior conviction of Mr. smith is admissible, that based on the statement to the detect1ve that Mr. smith had been employed for ten years, that he, the Defendant has opened the door on how or when or where he was employed for a period of ten years given his incarceration on a prior conviction; correct?
MS. BOWEN:

Your Honor, over the objection

of the State both times he asked it, first Ron Lundin
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and from the detective. self-employed.

He didn't ask whether he was

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He said, isn't it true that business was That

up and running, a viable business for ten years. implies it's in Arizona. about right here. He's in Texas.

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

That's what we are talking

He wasn't in Arizona at the time.

He was being supervised by the court

system down there, did not have a viable business and not this business. I think the inference he's given, So

he's a productive member of society, is incorrect.

if you are going to comment on a type of person is out of the system I think you can bring in the fact that they were not in the system that you are implying, that's correct.
THE COURT:

All right.

Mr. Griffith, you

have properly had your client testify via the -- through the reading of the transcript of the typed interview by your client conducted by Detective Powers. This case is a credibility case between the testimony of Rachel Tseko and the explanation and statement made by the Defendant. If you choose to have

your client testify or if he chooses to testify, I am going to allow the introduction of the prior conviction of Mr. smith. I do find that the substance, that is, a

crime of indecency with a child in the district of Harris County, is too prejudicial and that the

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prejudicial effect does outweigh and could in fact MS. BOWEN:

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Your Honor, on that basis, I

ask we convene earlier THE COURT:

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What I'm saying, I'm inclined

to sanitize the prior conviction, allow impeachment to
be the introduction of the prior conviction without the

nature of the offense being presented to the Jury.
MS. BOWEN: that.

I don't have a problem with

I ask we accomplish that earlier, establish the

609 so the Court is satisfied, whatever I'm impeaching with him belongs to smith. MR. GRIFFITH:

It's my understanding, that

through my conversations with Mr. winter a long time ago, that, that there were inadequate fingerprints because this was all microfiched at the time.
MS. BOWEN:

I can't speak for Mr. winter We had

17
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because I don't know what conversation he had.

at least four prior packets sent to us in order to get a clear print. We have two viable sets of fingerprints Also contain

to, to denote who the fingerprint is. pictures which are identifiable.
THE COURT:

Mr. Griffith, look over those

documents, which you're doing right now, which apparently contain a fingerprint identification, and tell me whether based on those documents

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MR. GRIFFITH:
THE COURT:

Based on these document -

-- you are going to contest

the identification of your client as the person convicted.
MR. GRIFFITH: is clear.
THE COURT:

4
5
6

No, Your Honor, the picture

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

Okay.

Is this the conviction

of May 23rd, 1994?

MR. GRIFFITH:
THE COURT:

'84.

'84, pardon me.

In Harris County, Texas?
MS. BOWEN:

Har~is County.

And it

indicates when a sentence begins, which is 5/13/84 and the date of offense being May 31, 1983.
THE COURT: All right.

There is no

problem with the ten-year time period, is there, of the
sentence only began in May of '84 and ended sometime after July of '84, is there, Ms. Bowen?
MS. BOWEN: THE COURT:

That's correct, Your Honor. Are you contesting that the -

are you objecting to the prior conviction on the basis that it's outside the ten-year time period, Mr. Griffith? MR. GRIFFITH: Well, I believe that's

25

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I am contesting, Judge. MS. BOWEN: Your Honor, my reading of the

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Rule does not eliminate a conviction over ten years, only it requires notice to contest it. THE COURT: I know you took this case over I had not seen a motion or

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6

from Mr. Winter, Ms. Bowen.

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notice to introduce prior Rule 609 conviction.
MS. BOWEN:

I think we discussed this My understanding, Mr. winter

previously, Your Honor.

did focus on using the conviction under 404 and never did convert it over to a 609.
THE COURT:

There was notice of intent to

use -- to allege a prior conviction for punishment enhancement purposes I believe.
are -- 13-604 MS. BOWEN:

Under Rule 604, there

I do see an allegation of

historical prior, I do believe.

There is a request for

609 hearing filed on September 21st, 1994. THE COURT: Does that identify the 1984 Texas conviction?
MS. BOWEN:

As alleged.

When he lists it,

it's the same one he's alleged in the State's allegation of historical prior.
THE COURT:

That is alleged in the Court Is

file, by an allegation submitted September 21, 1994.

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this a typo, Counsel, refers to May 23rd, 1994,

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defendant was convicted of the crime of indecency with a child in the District Court of Harris County, state of Texas?
MS. BOWEN:

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5 6 7 8
9 10 11 12 13

Yes, Your Honor.

It has been

edited out in my form. formal hearing or not.

I don't know if that was at a It's not my writing and it was
'84. Just

reverted to 1984, says on or about May 16,

for the Court's information, the record itself indicates

a conviction date, sentencing date of -- they are never,
like I said, date of off~nse, May 31st, 1983, to begin May 16, 1984.

.Then in the recapitulation of it, I don't , .
.

know if there was a continuation:of the matter, also
I ;

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16.

indicates that this judgment was entered on July 12th of '84.
I
..
.

.

I J

.

.

So, there are various 'dates one corilq select to

indicate, which -- what they are talking about.
, !

And at

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the tqp for the entire form it says, this document is prepared on November of 1983.
THE COURT:

All right.

But your file does reflect a request by Mr. winter for a Rule 609 hearing?
MS. BOWEN:

'Yes, I have the copy if the

Court would like it.
THE COURT: All right.

MR. GRIFFITH:

Well, the most important

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thing, was it filed?
MS. BOWEN: the 21st of September.
THE COURT:

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It indicates it was filed on I don't know.
Yes.

May I approach?

MS. BOWEN: .As this Court is aware, the reason I have this case, Mr. winter left our office. had to be filed prior to my assuming it. for him and it is his signature.
THE COURT:

It

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

I can't file

All right.

Thank you.

Mr. Griffith, I'm going to accept the copy of the pleading of Mr. Winter referring to notice of intent or notice of request for Rule 609 hearing. Ms. Bowen has

different dates for the conviction, or at least the date

that the sentence of your client served was to begin.
She has one date of July 12, 1984. There is reference

to an earlier set date for sentencing of May 16, 1984.

For discussion purposes, even if the conviction was entered prior to ten years, more than ten years prior to July 7, 1994, under Rule 609(b) the alternate or the additional basis for the state's request is that if sufficient notice is presented for you to respond, a conviction greater than ten years old may be admitted by the Court, if the Court, again, finds that Rule 609 has been satisfied. with that in mind, why don't you respond?

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MR. GRIFFITH:

okay.

I don't know if they

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have met the burden of giving us sufficient written notice of intent to invoke 609. a filing in her file. I -- Ms. Bowen has such

4
5 6

I have not had a chance recently

to look, but I was not under the impression they were
asking for a 609.

I'm not going to avow to the Court I And even so, I don't know if they But I don't think that the Court

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

never received one.
have met that burden.

can determine that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. That's

what you would have to find under 609(b), this is so probative that it substantially outweighs any prejudicial effect. And I think the Court certainly may

not be bound under 609 by Judge Jarrett's earlier ruling, having considered all this carefully under 403 and 404, or if the Court wants to be guided by that

ruling by Judge Jarrett, this certainly does not outweigh, substantially outweigh the prejudicial value.
THE COURT: All right.

I am fully aware

of the evidence presented in this trial up to this point
in time.

I have listened to the evidence, or testimony I'm

of Rachel Tseko and the other state's witnesses.

aware of what the Defendant, through his statement to the Detective has given as his explanation of the

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events -- of the event in question, and his denial having administered a dangerous drug to Ms. Tseko. Credibility is a critical element of this case, Counsel. Under Rule 609, indeed the Court does find that given the circumstances of the testimony of this case, that the probative value of introducing a sanitized conviction of Mr. smith in 1984 does indeed substantially outweigh -- does indeed provide probative value that substantially outweighs any prejudicial effect given the credibility he-said/she-said type of case that's already been ~lluded to in this case. The Court further finds that the prior state's Counsel Mr. winter submitted the State's prior pleadings and notice to the defense counsel which

2 3

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10 11 12 13

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

included the State's 'allegation of historical priors dated September 21, 1994, and which I have now found it in the Court file also contains the orig~nal of the
State's request for Rule 609 hearing.

The Court finds

that does serve as adequate advance written notice to
I .

the Defendant that the state would or could intend to introduce a conviction that is more than ten years old. For those reasons, the sanitized version of the Texas
conviction out of Harris County will be admitted should your client testify under Rule 609 for impeachment purposes.

You can refer to the fact of a conviction and

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- -

-- -- - - - - -

157 1

that it occurred in 1984, Counsel. Anything else?
MS. BOWEN:

2
3

Not on that subject, Your

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

Honor.
MR. GRIFFITH: MS. BOWEN:

No, Your Honor. Did you want me

-

THE COURT: subjects.
MS. BOWEN:

Let's proceed to other

All right.

I was going to

suggest that, I take it now from the portion that was read of the transcript, Exhibit 6, that I should take out any references now to the Zinfindel.
THE COURT: MS. BOWEN: and 18 of 35? THE COURT:

Yes. Which is contained on 17 of 35

Thank you, Ms. Bowen.

We had

a discussion at side-bar off the record.

My ruling was

that introduction of testimony or statement by Mr. smith as to whether or not Rachel drank Zinfindel at his I residence or in his presence the day before July 7, 1994, was prejudicial, could also confuse the Jury because the charge involved administration of a dangerous drug and not administration of intoxicating liquor. So, I am ordering that that portion of the

typed transcript of Mr. smith's at the same time be
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158

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excised.

What other issues, Ms. Bowen?
MS. BOWEN:

That's all that I have, Your

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

Honor. Should we meet earlier tomorrow to
establish the 609?
THE COURT:

Yes, please. Well, I think -- I thought

MR. GRIFFITH:

you had already ruled on the 609. concede that they have photographs.

I'm willing to
They have -- I

mean, I'm not going to contest that.
THE COURT:

Is the fingerprint information

still in microfiche form or enlarged? MR. GRIFFITH:
than it was but they have THE COURT:

It appears to be better

I just need to know, are you

still contesting the identification of your client as the person with the prior conviction? MR. GRIFFITH:
THE COURT:

No, no, no.

Thank you.

MR. GRIFFITH:

Right.

The information

they now have is much better than the information they had when Mr. winter and I went over it.
MS. BOWEN:

Just for clarification, Your

Honor, I don't know if Mr. smith is aware of this,

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Mr. Griffith is saying he doesn't contest it.

If

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Mr. Griffith contested it, he can't protest it and not have to fingerprint him at that time. understand that?
MR. GRIFFITH:

He does

4
5 6

Well, he understands that

Your Honor.
THE COURT: All right.

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

Well, Mr. Smith, your attorney has relayed you understand. In other words, you are waiving the

right to contest your identification as being the person or not being the person who was convicted in Harris County, State of Texas, on or about May 23rd, 1984 in
cause number 387216 THE DEFENDANT:
THE COURT:

Yes, sir.

You will not be contesting

that.

Thank you.

Counsel, I need to raise this with you to save time tomorrow. This charge in the indictment,

including obviously based on the Statute ARS section 13-3407, 'administering a dangerous drug, Halcion, Ms. Bowen I don't know if you saw Mr. Griffith's requested instruction that the Jury be instructed on the
violation of ARS section 13-1205, which is unlawful

administration of intoxicating liquor, which does not apply, or a dangerous drug. It provides for a class 5

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