>> GOODS MORNING.
JUSTICE MCKEIG IS NOT WITH US
TODAY.
COUNSEL, YOU GET THREE MINUTES
AT THE BEGINNING OF YOUR
ARGUMENT AND AT THE THREE MINUTE
MARK, I'LL INTERRUPT YOU AND SEE
IF MEMBERS OF THE COURT HAVE
QUESTIONS.
MRS. MARTIN, YOU HAVE FIVE
MINUTES FOR REBUTTAL.
PROCEED WHEN YOU'RE READY.
>> THANK YOU.
GOOD MORNING.
MAY IT PLEASE THE CART I'M
SARATOGA REIGNS LEADING MARTIN
AND -- SARA MARTIN AND REPRESENT
THE APPELLANT GILLEYLEN AND HE
RAISES FOUR ISSUES ON APPEAL FOR
FIRST DEGREE MURDER.
HE ASKS THE COURT TO REVERSE THE
FIRST DEGREE MURDER BECAUSE
THERE'S INSUFFICIENT EVIDENCE
FOR PREMEDITATION.
HE WAS DEPRIVED OF A FRAIL TRIAL
OF THE RIGHT TO CONFRONT THE
STATE'S KEY WITNESS AND TWO,
IMPROPER JURY INSTRUCTIONS THAT
IMPACTED THE VERDICT.
I'D LIKE TO START WITH THE ISSUE
OF INSUFFICIENT EVIDENCE ON
PREMEDITATION.
NO WITNESS SAW THE ENTIRE
INCIDENT, BUT VIDEO FOOTAGE AND
EYEWITNESS REPORTS MADE CLEAR
THAT THE SHOT THAT KILLED
MR. HUBBARD OCCURRED IN THE
MIDST OF A CHAOTIC, CONFUSING,
AND FAST MOVING INCIDENT THAT
EARLY INTERVENTION PROGRAM
COLLUDED -- INCLUDED TWO VEHICLE
CRASHES AND A SHORT FOOT CHASE.
IN STATE VERSUS MOORE IN 1992,
THIS COURT ACKNOWLEDGED THAT
PRIOR CASE LAW BLURRED THE LINE
BETWEEN FIRST AND SECOND DEGREE
MURDER, EVEN THOUGH THE
LEGISLATURE INTENDED THE LINE TO
BE DISTINCT TO JUSTIFY PUNISHING
DIFFERENT CRIMES DIFFERENTLY.
THE NEED NOR ARE -- THIS COURT
HAS MADE CLEAR THAT TO PROVE
PREMEDITATION, THE STATE MUST
PROVE THAT AFTER THE DEFENDANT
FORMED THE INTENT TO KILL, SOME
APPRECIABLE TIME PASSED AND
DURING THAT TIME, THE DEFENDANT
CONSIDERED, PLANNED, PREPARED,
OR DETERMINED TO COMMIT THE
MURDER.
THE TERM PREMEDITATED IMPLIES A
COOL MIND THAT REFLECTS BEFORE
COMMITTING THE ACT OVKILLING.
THAT WAS NOT PRESENT HERE.
AFFIRMING THE FIRST DEGREE
MURDER CONVICTION WOULD AGAIN
BLUR THE LINE BETWEEN FIRST AND
SECOND DEGREE MURDER BECAUSE THE
TOTALITY OF THE CIRCUMSTANCES
CREATES A REASONABLE HYPOTHESIS
THERE WAS NO OPPORTUNITY FOR
PLANNING A REFLECTION IN THE
MIDST OF THE INCIDENT.
THE STATE FAILED TO PROVE
PREMEDITATION BEYOND REASONABLE
DOUBT.
THERE WAS A REASONABLE
HYPOTHESIS THERE WAS NO
PREMEDITATION.
THIS COURT LOOKS TO THREE
CATEGORIES OF EVIDENCE TO
DETERMINE WHETHER PREMEDITATION
HAS BEEN ESTABLISHED: PLANNING
ACTIVITY SUCH AS PROCURING A
WEAPON OR LYING IN WAIT, MOTIVE
INCLUDING PRIOR THREATS OR
WHETHER THE VICTIM HAD ANGERED
THE DEFENDANT, AND THE NATURE OF
KILLING WHETHER THE EVIDENCE
SHOWS THAT THE WOUNDS WERE
DELIBERATELY PLACED.
EXAMINATION OF THOSE THREE
CATEGORIES IN THIS CASE SHOWS
THE STATE FAILED TO ESTABLISH
PREMEDITATION BEYOND A
REASONABLE DOUBT.
THERE WAS NO EVIDENCE OF
PLANNING BEFORE THE INCIDENT.
THERE'S NO EVIDENCE THAT
MR. GILLEYLEN PROCURED A GUN FOR
THE PURPOSE --
>> COUNSEL, I'M GOING TO STOP
YOU AND SEE IF MEMBERS OF THE
COURT HAVE QUESTIONS.
JUSTICE ANDERSON.
>> ON THE PREMEDITATION
QUESTION, WHAT DO WE DO ABOUT
WHAT I THINK IS PERHAPS THE
STRONGEST POINT THAT THE STATE
HAS, WHICH IS THE DELIBERATE
PURSUIT PURE PURSUED INTO THE A,
SHOOTER STANCE, MULTIPLE SHOTS,
ALL THOSE ARE NOT DETERMINATIVE
BUT DO SEEM TO SUPPORT A
PREMEDITATION THEORY.
WHAT DO YOU DO WITH THOSE
ARGUMENT S?
>> I WOULD AGREE WITH THE STATE
THAT THOSE DO CREATE AN
INFERENCE OF PREMEDITATION, BUT
IN THE CONTEXT OF THE TOTALITY
OF THE CIRCUMSTANCES IN THIS
CASE, THEY DON'T CREATE THE ONLY
INFERENCE.
THE OTHER INFERENCE IS THAT
BECAUSE THE THINGS WERE
UNFOLDING SO RAPIDLY, THIS CASE
STARTED OR THE INCIDENT STARTED
WHEN THE HONDA PULLED UP NEXT TO
THE IMPALA AND THERE WAS A SHOT
FIRED.
MR. ROBINSON WHO WAS DRIVING THE
HONDA BELIEVED THEY WERE BEING
FIRED ON.
IN FACT, SOMETHING HIT THE CAR,
THE WINDOW SHATTERED, AND THEN
THERE WERE TWO CAR CRASHES.
THE HONDA CRASH -- THEY DRIVED
DOWN THE STREET AND HONDA TURNS
ONE DIRECTION, THE IMPALA TURNS
THE OTHER DIRECTION, BOTH CARS
CRASH.
AFTER THAT, MR. HUBBARD GOT OUT
OF THE CAR AND RAN TOWARD THE
HONDA SO I THINK THAT THERE IS
AN INFERENCE THAT THE SHOOTER IN
THIS CASE COULD HAVE BELIEVE
THAT HAD MR. HUBBARD WAS ARMED.
THE SHOOTER THEN FOLLOWS
MR. HUBBARD AS MR. HUBBARD RUNS
PAST.
THERE IS THE SHOOTER'S STANCE
REFERS TO THE OUT ON THE STREET
IN THE ALLEY WHERE THE SHOT
OCCURRED THAT HIT MR. HUBBARD.
THE ONLY EVIDENCE WE HAVE OF
THAT IS MS. CHAMBERLAND'S
TESTIMONY THAT PEOPLE WERE
RUNNING BACK AND FORTH WITH ARMS
EXTENDED.
UNDER THE TOTALITY OF THE
CIRCUMSTANCES, THE FACT THAT
THINGS WERE HAPPENING EXTREMELY
FAST AND ONLY A MATTER OF
SECONDS --
>> YOU'RE NOT CONTESTING HE HAD
THE INTENT TO KILL?
>> THE ONLY ELEMENT THAT WE'RE
CONTESTING AS FAR AS SUFFICIENCY
IS THE PREMEDITATION.
>> OKAY.
CAUSE A LOT OF THOSE THINGS, I
MEAN, TO YOUR EARLIER POINT
THESE TWO CONCEPTS BLUR PRETTY
MUCH.
BUT ALL THE THINGSES YOU'RE
TALKING ABOUT KIND OF GO --
THINGS YOU'RE TALKING ABOUT GO
TO INTENT AND IF YOU'RE NOT
CONTESTING INTENT ISN'T OUR ONLY
QUESTION WHETHER ENOUGH TIME
PASSED BETWEEN INTENT AND I'M
GOING TO KILL THIS GUY AND THEN
REFLECT ON IT AND THEN PULL THE
TRIGGER?
ISN'T THAT REALLY THE ONLY
QUESTION BEFORE US?
>> THAT'S CORRECT, YOUR HONOR,
AND I THINK UNDER THE TOTALITY E
CIRCUMSTANCES THERE'S NOT THAT
REFLECTION --
>> COUNSEL, IF I MAY, ONE
CLARIFICATION OF THE RECORD
ABOUT THE STATEMENT HE TOOK A
SHOOTER STANCE, I THOUGHT THAT
CAME FROM THE GUY WHO WAS
STANDING INSIDE THE FACILITY OF
SOME SORT.
HE WAS THERE CARING FOR HIS MOM
OR SOMETHING.
I THOUGHT IT WAS THAT PERSON
THAT SAID -- OF COURSE THE
OFFICER KIND OF SUGGESTED THE
IDEA TO HIM HE WAS IN A SHOOTER
STANCE AND HE OR SHE SAID OH,
YEAH, I WAS.
AM I WRONG ABOUT THAT FACT?
I THOUGHT THAT WAS THE GUY AND
NOT THE WOMAN TAKING THE METH?
>> YOU'RE CORRECT ABOUT THAT,
YOUR HONOR.
STUART SIMON COULD SEE THE FIRST
PART OF THE INCIDENT AFTER THE
CARS CRASHED, AND THE OFFICER
SAID DID HE TAKE A SHOOTER
STANCE AND STUART SIMON SAID,
YES, HE DID TAKE A SHOOTER
STANCE AND TIRED A SHOT.
>> THAT EVIDENCE COMES FROM SOMR
WITNESS WHO WAS NOT HIGH.
>> THAT'S CORRECT, YOUR HONOR.
HOWEVER THAT SHOT WAS NOT THE
SHOT FIRED IN THE ALLEY.
THAT WAS A SHOT FIRED NEAR THE
HONDA.
THE SHOT FIRED IN THE ALLEY WAS
FROM THE ONLY WITNESS THAT
TESTIFIED ABOUT THAT WAS SHARON
CHAMBERLAND AND TESTIFIED AGAIN
PEOPLE WERE RUNNING BACK AND
FORTH.
>> I GUESS MY ONLY OTHER
QUESTION IS REALLY PICKING UP
OFF JUSTICE ANDERSON'S POINT AND
YOU'VE GOT EIGHT SHOTS HERE SO
THERE HAD TO BE TIME IN BETWEEN
THOSE SHOTS.
WHY ISN'T THAT BECAUSE OUR CASE
LAW SAYS IT JUST NEEDS TO BE
SOME APPRECIABLE TIME.
DOESN'T NEED TO BE PREMEDITATIOE
PREMEDITATION.
DOESN'T NEED TO BE A LONG, DRAWN
OUT THING.
HE FIRES EIGHT TIMES, WHY ISN'T
THAT PRETTY CLEAR EVIDENCE AND
THE CHASING.
HE'S GOING AFTER THIS GUY.
>> THERE HAVE BEEN A NUMBER OF
CASES THAT HAVE DETERMINED THAT
THE NUMBER OF SHOTS FIRED IS
RELEVANT TO PREMEDITATION, BUT
IN ALL OF THOSE CASES WHERE
THERE'S SHOTS FIRED, A PAUSE,
THEN MORE SHOTS FIRED THAT ENDS
UP BEING THE FATAL SHOT, THERE'S
A VERY CLEAR DISTINCTION OR VERY
IMPORTANT DISTINCTION.
IF YOU LOOK CLOSER AT THOSE
CASES AND EVERY CASE THAT I
COULD FIND WHERE PREMEDITATION
WAS BASED UPON THIS FACT,
THEY'RE DISTINGUISHED ON THE
FACT THAT THE VICTIM WAS
INCAPACITATED BY THE FIRST SHOT.
SO THE DEFENDANT HAD TIME TO
REFLECT WHILE THE VICTIM WAS
INCAPACITATED.
THEY MOVED CLOSER AND FIRED MORE
SHOTS TO VITAL ORGANS.
BUCHANAN, COBS, MUAH, HUGHES,
PALMER, AND GALVIN, ALL OF WHICH
ARE CITED IN THE BRIEFS ALL
FOLLOW THIS PATTERN.
IT'S NOT JUST SIMPLY THAT
MULTIPLE SHOTS ARE FIRED.
IT'S THIS OPPORTUNITY TO REFLECT
AFTER THE VICTIM HAS BEEN
INCAPACITATED THAT IS RELEVANT.
ALSO IN THOSE CASES, THERE WERE
FAR MORE FACTS TO SUPPORT
PREMEDITATION THAN MERELY THE
NUMBER OF SHOTS.
>>> BUTLER BUTLER BUCHANAN, THES
PREMANNING OF OBTAINING THE GUN
AND THEN BUCHANAN SAID WHAT ARE
YOU GOING TO DO ABOUT IT NOW AND
THEN FIRE A SHOTS.
>> YOU'RE NOT SUGGESTING THAT WE
HAVE
>> CRATED A RULE THAT THE --
HAVE CREATED A RULE THAT THE
VICTIM BE INCAPACITATED ARE YOU?
>> NO, BUT THAT'S WHY THE
MULTIPLE SHOTS FIRED WAS
RELEVANT.
>> OKAY.
>> WHEN I -- GO AHEAD.
>> OKAY.
I WAS GOING TO MOVE ONTO
SOMETHING ELSE SO GO AHEAD.
>> OKAY.
I'M STILL ON THE SHOTS FIRED.
WHEN I LOOK AT THE, YOU KNOW,
EXHIBIT 4, I THINK IT WAS IT
SHOWS THAT THERE WERE TWO SHOTS
FIRED IN THE MIDDLE OF FOURTH
AVENUE AND THEN, YOU KNOW, SOME
DISTANCE TO THE MOUTH OF THE
ALLEY WHERE ANOTHER SHOT WAS
FIRED AND THEN THERE WERE, LET'S
SEE, THREE -- NO, JUST TWO SHELL
CASINGS FOUND VERY NEAR THE POOL
OF BLOOD, WHICH SUGGESTS, YOU
KNOW, THERE WAS A DISTANCE TO
GET FROM THAT MOUTH OF THE ALLEY
TO WHERE THE VICTIM EVENTUALLY
WAS LYING THERE.
AGAIN, YOU KNOW, I JUST THINK
THAT SUGGESTS THAT THERE WAS
TIME TO STOP AT ANY POINT
INSTEAD OF ENTERING THAT ALLEY.
THE CASINGS CLOSE TO THE BODY
JUST SUGGESTS THAT AT THE VERY
LEAST AT THAT POINT THERE HAD
BEEN ENOUGH TIME TO PREMADE AT A
TIME.
>> TWO TWO RESPONSES, YOUR HONO.
THE SCENE WHERE THE HONDA
CRASHED TO THE DISTANCE OF THE
CASINGS IN THE ALLIE IS ABOUT
200 -- ALLEY IS ABOUT 200 FEET
SO IT'S A FAIRLY SHORT DISTANCE
THAT COULD BE TRAVELED VERY
QUICKLY AND THE WITNESSES
DESCRIBED PEOPLE RUN.
THE OTHER POINTS REGARDING THE
SHELL CASINGS BEING CLOSE TO THE
POOL OF BLOOD, THAT IS ONE ONE
OF THE POINTS THAT THE STATE
MAKES TO LIKEN THIS CASE TO
MCARTHUR, FOR EXAMPLE.
THIS CASE IS NOT MCARTHUR.
MCARTHUR THE SHOT WAS FIRED AT
EXTREMELY CLOSE RANGE AND IN
THIS CASE THERE'S NO DIRECT
EVIDENCE OF WHERE THE FATAL SHOT
WAS FIRED.
DR. BAKER TESTIFIED IT WAS AN
INDETERMINATE RANGE, OVER THREE
FEET AND GABRIEL IS THE CITY OF
MINNEAPOLIS AND SAID YOU CAN'T
TESTIFY WHERE THE SHOOTER WAS
BASED UPON THE SHELL
INDICATIONINGS BECAUSE WHEN
SHELL CASINGS WHERE EJECTED FROM
A GUN THEY BOUNCE EVERYWHERE AND
CHAMBERLAND DIDN'T DESCRIBE HOW
CLOSE THEY WERE.
SHE DESCRIBED THIS VERY FAST
MOVING SCENE WHERE PEOPLE WERE
RUNNING AND SHE DESCRIBED THE
SHOOTER FIRE THE GUN AND THEN
TAKE OFF RUNNING.
IT WAS NOT A SITUATION WHERE
SOMEONE WAS STOPPING TO REFLECT
ON THEIR ACTIONS AND STOPPING TO
HAVE TIME TO CONSIDER, PLAN, OR
PREPARE.
THE OTHER ISSUE IS THAT IN ALL
OF THOSE CASES THAT I MENTIONED
WHERE THE VICTIM WAS
INCAPACITATED AND THEN SHOT
AGAIN, THERE WAS THAT TIME TO
PREPARE.
IN SEVERAL CASES, THERE WERE
ACTIONS THAT THE DEFENDANT TOOK
BETWEEN THE FIRST SHOT FIRED AND
THE SHOT THAT EVENTUALLY KILLED
THE VICTIMS IN THE CASE.
THERE'S A LOT MEASURE --
>> SO ACTIONS OTHER THAN THE
PASSAGE OF TIME?
>> EXACTLY, YOUR HONOR, YES.
IN ADDITION TO ACTIONS OTHER
THAN THE PASSAGE OF TIME, IN
THOSE CASES WE ALSO HAVE THINGS
LIKE MOTIVE.
WE HAVE PREPLANNING ACTIVITY.
IN MUAH FOR EXAMPLE, THE ACTS
THAT THE DEFENDANT TOOK AFTER
THE SHOOTING SHOWED THAT HE HAD
AN ESCAPE PLAN IN PLACE BEFORE
THE SHOOTING OCCURRED.
>> SO CAN WE CONSIDER ROBINSON'S
TESTIMONY?
I THINK THAT'S WHOSE IT WAS THAT
A SHOT WAS FIRED FROM THE IMPALA
TOWARD THE ACCORD IF I'M GETTING
THE CARS CORRECT BECAUSE WASN'T
THERE ALSO EVIDENCE IN THE
RECORD THAT THE IMPALA DIDN'T
HAVE WINDOWS DOWN?
ISN'T THAT -- ISN'T ROBINSON'S
TESTIMONY CONTRADICTED BY
EVIDENCE THAT SUPPORTS THE
VERDICT HERE?
MY QUESTION IS CAN WE CONSIDER
THOSE CIRCUMSTANCES PROVEED?
>> YOU CAN CONSIDER THE
CIRCUMSTANCES THAT ROBINSON
BELIEVED THEY WERE BEING FIRED
AT.
>> EVEN THOUGH IT WAS
CONTRADICTED BY OTHER EVIDENCE
IN THE RECORD?
>> YES, YOUR HONOR.
I DON'T THINK IT PROVES A SHOT
WAS FIRED FROM THE IMPALA BUT IN
THE CONFUSION OF THE INCIDENT,
ROBINSON BELIEVED THEY WERE
BEING FIRED AT AND FACTS TO
SUPPORT THAT IN THE RECORD.
>> BUT THE ROBINSON BELIEF OF
THAT WOULD HAVE TO TRANSFER TO
YOUR CLIENT AND -- SO YOU HAVE
TO MAKE AN INFERENCE THAT YOUR
CLIENT BELIEVED THE SAME THING
BUT THE ONLY REASON YOU CAN MAKE
THAT INFERENCE IS BECAUSE THE
EVIDENCE WOULD SHOW THAT THE
SHOT WAS -- WHAT ROBINSON
BELIEVED WAS TRUE.
ROBINSON'S BELIEF DOESN'T GET
YOU THERE.
JUST SEEMS LIKE THERE'S FACTS
CONTRADICTING ROBINSON'S BELIEF
AND WE HAVE TO SET THEM ASIDE
BEFORE WE DO THE SECOND STEP OF
THE CIRCUMSTANTIAL EVIDENCE
TEST.
>> WELL, THAT THE CIRCUMSTANCE
PROVED THEY BELIEVED THE PEOPLE
IN THE HONDA THOUGHT THEY WERE
BEING FIRED AT WAS THE DEFECT IN
THE WINDOW, IN THE PASSENGER
SIDE WINDOW AND THE FACT THAT
THE WINDOW SHATTERED.
THE STATE HAD A THEORY THAT THAT
HAPPENED -- THAT MR. GILL GILLEN
DID THAT SOMEHOW AND I DON'T
KNOW HOW THAT'S POSSIBLE THAT HE
STRUCK --
>> WHY IS THAT NOT POSSIBLE?
>> I DON'T KNOW HOW SHOOTING
TOWARDS AN IMPALA, HOW THE
BULLET COULD HAVE THEN COME AND
HIT THE CAR.
HIT FROM THE OUTSIDE.
>> YES, BUT ROBINSON'S TESTIMONY
WAS HE WAS SHOOTING FROM INSIDE
THE CAR.
I DON'T --
>> WHY WOULDN'T THAT SHATTER THE
WINDOW THOUGH?
THAT'S WHAT I THOUGHT HAPPENED.
WHY WOULDN'T THAT SHATTER THE
WINDOW IF HE WAS SHOOTING FROM
THE INSIDE.
THAT'S WHAT I THOUGHT THAT
MEANT.
>> THE DEFECT WAS TO THE OUTSIDE
OF THE CAR.
SOMETHING STRUCK THE CAR ON THE
OUTSIDE AND THE STATE'S THEORY
IN CLOSING ARGUMENT WAS THAT
SOMEHOW THE BULLET FROM
MR. GILLEYLEN'S GUN HIT THE CAR.
EVEN IF THAT IS ONE INFERENCE
YOU CAN DRAW, THAT IS NOT THE
ONLY INFERENCE AND IT CERTAINLY
COULD GIVE RISE TO PEOPLE IN THE
CAR FEAR THEY WERE BEING FIRED
AT.
WE KNOW THERE WAS A GUN FOUND ON
THE FLOOR OF MR. HUBBARD'S CAR
AND AS FOR THE WINDOWS BEING
SHUT, THE PHOTOGRAPHS CLEARLY
SHOW THAT THE WINDOW WAS 20%
CRACKED.
THERE'S TESTIMONY IN THE RECORD
TO THAT.
>> COUNSEL, I WANTED TO ASK YOU
ABOUT YOUR CONFRONTATION CLAUSE
CLAIM IT SOUNDED LIKE TO ME THAT
YOU DON'T SAY THIS IN YOUR
BRIEF, BUT IT ALMOST SOUNDED TO
ME LIKE YOU WERE ASKING US TO
CREATE A PER SE RULE THAT IF THE
SENTENCE -- IF THE PLEA BARGAIN
HAS TO DO WITH A LIFE SENTENCE
AS IT DID HERE FOR MR. ROBINSON,
THAT THAT'S DIFFERENT.
THAT'S ALMOST SUEY GENEROUS.
THAT'S A WHOLE NOTHER ANIMAL AND
WHEN THAT IS THE CASE, WE OUGHT
TO DIVERGE FROM OUR HISTORICAL
PRACTICE AND THE BULK OF OUR
CASE LAW AND ALLOW DEFENSE
COUNSEL TO GET INTO THAT.
AM I READING TOO MUCH INTO WHAT
YOU'RE SAYING OR TELL ME IF
THAT'S WHAT YOU'RE ASKING FOR AT
THE END OF THE DAY?
>> THAT IS WHAT I'M ASKING FOR,
YOUR HONOR, AND THAT'S FOR A
COUPLE OF REASONS.
FIRST OF ALL, THERE'S NO WAY TO
CONVEY THE MAGNITUDE OF A
WITNESS' BIAS OR THEIR INCENTIVE
TO TESTIFY IN EXACTLY THE WAY
THE PROSECUTION WANTS THEM TO
WITHOUT LETTING THE JURY KNOW
THAT WHAT THAT WITNESS FACED WAS
WALKING INTO PRISON AND NEVER
LEAVING.
IT'S ALSO A PROBLEM BECAUSE THE
COURT'S REMEDY OF ALLOWING
CROSS-EXAMINATION ON A
PERCENTAGE OF REDUCTION ALLOWED
THE JURY TO MAKE A FALSE
INFERENCE THAT MR. ROBINSON WAS
ACTUALLY FACING A DETERMINANT
SENTENCE AND THEN INFER THAT MR.
THE COURT'S REMEDY IN THIS CASE
ESSENTIALLY WAS TO TELL THE
DEFENSE IT COULD PROVIDE FALSE
INFORMATION TO THE JURY.
IF THE JURY IS GOING TO DRAW AN
INFERENCE, IT SHOULD BE AN
ACCURATE INFERENCE.
>> BUT ISN'T THE POINT THOUGH,
EVEN IF IT DID LEAD TO AN
INFERENCE THAT HE HAD A
DETERMINANT SEASONS, AND HE
DIDN'T OBVIOUSLY BECAUSE LIFE IS
NOT THAT, BUT ISN'T THE POINT OF
THE WHOLE THING THAT THE JURY
GET ENOUGH INFORMATION TO BE
ABLE TO ASSESS THE INDIVIDUAL'S
CREDIBILITY AND HIS OR HER
BIASES AND MOTIVATION AND IF YOU
KNOW THAT THE INDIVIDUAL ON THE
STAND HAS GOTTEN "95% OFF THEIR
SENTENCE" DOESN'T THAT TELL YOU
AS A JURY WHAT YOU NEED TO MAKE
THOSE ACESPEDESMENTS AND
CREDIBILITY?
ASSESSMENTS OR CREDIBILITY?
TO ME IT DIDN'T MATTER IF THE
SENTENCE IS DETERMINANT OR
INDETERMINANT BUT BEYOND THE
JURY IS -- WHETHER OR NOT THE
JURY CAN SEE AND JUDGE THE
MOTIVATION AND THOSE KIND OF
THINGS?
>> THE DISTINCTION IS THE
MAGNITUDE OF THE INCENTIVE TO
PABREIGNS LEADING INDICATE
TESTIMONY OR TESTIFY HOW THE
STATE WANTS THEM TO TESTIFY.
THERE'S A DIFFERENCE BETWEEN
GOING TO PRISON AND GETTING OUT
SOME DAY AND GOING TO PRISON AND
NEVER GETTING OUT.
>> WHO DO WE DO THAT IT WAS
ARGUED TO THE JURY THAT IT WAS A
FIRST DEGREE MURDER CHARGE AND
INSTEAD HE'LL GET FIVE YEARS.
IF I'M RECALLING THE ARGUMENT OF
COUNSEL, I SHARE YOUR CONCERN
ABOUT -- AND INTEND TO EXPLORE
WITH MR. SCHMIDT, I SHARE YOUR
CONCERN ABOUT THE JURY BEING
TOLD SOMETHING THAT WAS FRANKLY
FALSE, IT WAS 95% BUSINESS BUT
HAVING SAID THAT, THE JURY HAD
THE OPPORTUNITY TO DRAW THE
DIFFERENCE BETWEEN FIRST DEGREE
MURDER AND A SHORT DETERMINANT
SENTENCE.
THAT STRIKES ME AS THE JURY HAD
THE INVESTIGATION INFORMATION I.
WHY IS THAT WRONG?
>> AGAIN, YOUR HONOR, IT GETS
BACK TO THE POINT OF LIFE
WITHOUT THE POSSIBILITY OF
RELEASE SENTENCE IS
QUANTIFIABLELY DIFFERENT THAN
GOING TO PRISON AND NEVER
LEAVING.
THERE WERE OTHER WAYS THAT THE
COURT COULD HAVE ADDRESSED IT
THE CONCERN THAT THE JURY WOULD
INFER THAT MR. GILLEYLEN WAS
FACING LIFE WITHOUT RELEASE.
THE COURT COULD HAVE ORDERED THE
DEFENSE OR INSTRUCTED THE
DEFENSE TO CONTRACT QUESTIONS
THAT ALLEVIATE THAT POSSIBILITY.
THE DEFENSE COULD HAVE ASKED MRD
WITH AN OFFENSE THAT CARRIES A
PENALTY OF LIFE WITHOUT RELEASE
AND DIDN'T NEED TO SAY IT WAS
THE SAME CHARGE AS MR. GILLEYLEN
AND THE COURT COULD HAVE
PROVIDED A CAUTIONARY
INSTRUCTION THAT JURORS
SHOULDN'T SPECULATE ABOUT ANY
POSSIBLE SENTENCE THAT
MR. GILLEYLEN WOULD RECEIVE AND
ASSUME THE INJURY WOULD RECEIVE
THAT.
SENTENCES ARE BASED ON A NUMBER
OF FACTORS FACTORS AND TWO PEOPE
CHARGED IN CONNECTION WITH AN
INCIDENT DON'T NECESSARILY FACE
THE SAME SENTENCE AND ALL OF
THOSE THINGS WOULD BE TRUE AND
WOULD NOT HAVE CREATED A FALSE
IMPRESSION THAT MR. GILLEYLEN
FACED A DETERMINANT SENTENCE.
IT ALSO WOULDN'T HAVE CREATED A
FALSE IMPRESSION THAT
MR. ROBINSON FACED A DETERMINANT
SENTENCE AND REALLY --
>> SO AT THE ROOT OF YOUR
ARGUMENT THEN IS THE IDEA THAT
SOMEONE IS MORE LIKELY TO LIE IF
THEY'RE GOING TO PRISON FOR THE
REST OF THEIR LIFE AS OPPOSED TO
GOING FOR 40 YEARS AND THEY'RE
MORE -- THAT'S KIND OF WHAT
YOU'RE -- IT COMES DOWN TO AND
WHETHER WE REALLY BELIEVE THAT'S
TRUE?
>> THAT'S CORRECT, YOUR HONOR.
THE MOTIVATION TO DO -- TO
TESTIFY IN EXACTLY THE TERMS THE
PROSECUTION WANTED IS GREATER IF
SOMEONE FACES THE POSSIBILITY OF
LIFE WITHOUT THE POSSIBILITY OF
PAROLE.
>> IT 40 YEARS A LONG TIME?
I KNOW WE'RE TALKING LIFE
WITHOUT POSSIBILITY OF RELEASE
BUT IS 40 YEARS MORE LIKELY FOR
THEM TO TESTIFY CORRECTLY?
SHOULD WE KIND OF CREATE A RULE
THAT CREATES THIS KIND OF A
SPECTRUM AND HOW DO WE LET
JUDGES DECIDE THAT?
IT SEEMS LIKE YOUR ARGUMENT
WOULD WORK EXACTLY THE SAME WITH
THE SENTENCE OF 40 YEARS.
>> THIS COURT ADDRESSED THAT
ISSUE IN DOBBINS AND DIVERNY AND
FERGUSON AND WHITE AND
DETERMINED IN THOSE CASES
ALLOWING THE JURY TO KNOW EITHER
THE NUMBER OF MONTHS REDUCED OR
THE PERCENTAGE REDUCED IS
SUFFICIENT.
I'M NOT DISAGREEING WITH THAT
CASE LAW.
>> BUT MY POINT IS WASN'T YOUR
LOGIC EQUALLY APPLY THERE?
>> THAT'S CERTAINLY THE
ARGUMENTS THAT THEY MADE IN
THOSE CASES.
HOWEVER I THINK THAT THERE'S A
DISTINCTION BETWEEN A
DETERMINANT SENTENCE AND A
SENTENCE OF LIFE WITHOUT
RELEASE.
>> COUNSEL, DID THE JURY KNOW
THE AGE OF MR. ROBINSON?
WERE THEY TOLD THAT AT ANY TIME
DURING THE EXAMINATION?
>> I DON'T RECALL, YOUR HONOR.
>> IT SEEMS TO ME, ISN'T THAT A
PRETTY IMPORTANT ISSUE TO LOOK
AT THE QUESTIONS QUESTIONS QUESE
THISSEN IS TALKING ABOUT AND
OBVIOUSLY IF MR. ROBINSON IS 55
VERSUS 19, I MEAN IS THAT A
MATERIAL DIFFERENCE THAT COULD
BE A FACTOR THE COURT COULD LOOK
AT IN THIS ANALYSIS?
>> I THINK THAT IS SOMETHING
THAT COULD BE CONSIDERED AND
ESPECIALLY WHEN CONSIDERING THE
MAGNITUDE OF WHAT MR. ROBINSON
WAS FACING.
I DON'T KNOW IF THE JURY LEARNED
HIS AGE EXACTLY AND ASK THAT HAD
SPECIFICALLY AND CERTAINLY THE
JURY WOULD HAVE THE OPPORTUNITY
TO SEE THAT HE'S A YOUNG MAN.
>> ONE OTHER QUESTION, DID
DEFENSE COUNSEL DO EVERYTHING
THEY COULD HAVE WITH THE
PARAMETERS THAT THE DISTRICT
COURT GAVE WITH REGARD TO THE
AREAS OF CROSS-EXAMINATION HERE?
I WAS LEFT READING THE
TRANSCRIPT A LITTLE FRANKLY
UNDERHELMED BY THE EFFORTS MADE
TO PUSH MR. ROBINSON ON THIS
PARTICULAR QUESTION.
WAS THERE MORE THAT WAS LEFT ON
THE TABLE THERE?
>> THE CROSS-EXAMINATION, HE
ASKED A NUMBER OF QUESTIONS
ABOUT THE DEAL THAT HE RECEIVED,
THAT HE RECEIVEED A SWEET DEAL.
THERE WERE A COUPLE OF
OBJECTIONS SUSTAINED AS MY
RECOLLECTION TO QUESTIONS ABOUT
WOULD YOU LIE TO GET A 95%
REDUCTION?
WOULD YOU LIE TO GET A SWEET
DEAL, SOMETHING TO THAT EFFECT.
SO THERE WERE QUESTIONS ASKED.
I DON'T KNOW PERHAPS HE COULD
HAVE DONE MORE WITH IT.
>> COUNSEL, SORT OF GOING TO
THAT, I WANT TO KIND OF EXPLORE
THAT A BIT MORE BECAUSE EVEN IF
WE WERE TO SAY THE DISTRICT
COURT ERE ERED.
I WONDER IF THAT'S MAYBE NOT
HARM ESPECIALLY AND MAYBE THE --
HARMLESS AND MAYBE THE DEFENSE
COUNSEL COULD HAVE DONE MORE
AND, BOY, WHEN YOU LOOK AT
EXCHANGE BETWEEN THE JUDGE AND
THE DEFENSE COUNSEL PRETRIAL HE
PUSHED HARD TO BE ABLE TO SAY
THIS WAS A LIFE SENTENCE AND
THEY TALKED ABOUT IT A LOT AND
THE DISTRICT COURT FINALLY SAID
NO, THESE ARE YOUR PARAMETERS
AND WITHIN THOSE PARAMETERS HE
TALKS ABOUT THE 95%.
HE SAYS THIS IS A HECK OF A
DEAL.
YOU GET FIVE YEARS FOR MURDER.
HE DOES PRESS MR. ROBINSON WHEN
MR. ROBINSON SAYS IT'S GOING TO
BE A JURY THAT DECIDES WHETHER
OR NOT I ACTUALLY GET THE FIVE
YEARS.
I HAVE TO TELL THE TRUTH BUT
IT'LL BE A JURY AND COUNSEL
SAYS, WAIT A MINUTE, WAIT A
MINUTE, YOU SIGNED A PROFFER
AGREEMENT THAT IT'S UP TO THE
HENNEPIN COUNTY ATTORNEY'S
OFFICE WHETHER YOU GET THAT
DEAL.
HE PRESSES HIM THAT WAY AND THE
STATE ITSELF NO DOUBT TRIES TO
TAKE STEAM OUT OF WHAT THEY KNOW
IS COMING FROM DEFENSE COUNSEL
AND PUT ON THE RECORD HE HAD
THIS DEAL AND THIS IS WHAT IS
ENTAILED AND YADAYA.
IF YOU PUT ALL THAT TOGETHER,
MAYBE THAT'S NOT ENOUGH.
HE COULD HAVE DONE MORE BUT
ISN'T THAT ENOUGH FOR THE JURY
AGAIN TO MAKE THAT CREDIBILITY
TERMINATION?
>> AGAIN, I WOULD GO BACK TO THE
FACT THAT WHAT HE WAS FACING WAS
LIFE WITHOUT RELEASE.
THAT IS QUANTIFIABLE DIFFERENT
THAN A DETERMINATE SENTENCE.
BOTH TOUCHED ON THE PREJUDICE IN
THE CASE AND MR. ROBINSON WAS
OBVIOUSLY A CRITICAL WITNESS FOR
THE STATE.
THE JURY RELIED ON HIS TESTIMONY
TO DETERMINE THAT MR. GILLEYLEN
WAS THE SHOOTER.
THEY ALSO COULD HAVE RELIED ON
MR. ROBINSON'S TESTIMONY TO FIND
PREMEDITATION IF TAIL THOUGHT IT
WAS RELEVANT THAT SHOTS WERE
FIRED ON THE EXIT RAMP AND THERE
WAS NO EVIDENCE OTHER THAN
MR. ROBINSON'S TESTIMONY.
THERE WAS NO WITNESSES, NOT ON
CAMERA, NO SHELL CASINGS OR
PHYSICAL EVIDENCE RECOVERED AT
THAT LOCATION.
THIS COURT EXPLAINED THAT AN
ERROR WAS PREJUDICIAL IF IT LED
THE JURY TO REACH A HARSHER
RESULT THAN IT OTHERWISE WOULD
HAVE AND THERE'S EVIDENCE IT
HAPPENED IN THIS CASE.
>> COUNSEL, ON THE QUESTION OF
FAILURE OF THE DISTRICT COURT TO
SAY ROBINSON WAS AN ACCOMPLISH
TO YOUR CLIENT AND AGREEING IT
WAS PLAINER ERROR AND THE
ARGUMENT THAT THE RIGHTS OF YOUR
CLIENT WAS SUBSTANTIALLY VIOLATE
THE FOR REVIEW AND OTHERWISE THE
CUMULATIVE EFFORTS FOR THE
DISTRICT COURT TO RE-FRUCTOTHE
JURY FOR WITNESS CREDIBILITY AND
OTHER THINGS SAID.
WHY ISN'T THAT SUFFICIENT TO
SHOW YOUR CLIENT'S RIGHTS
WEREN'T VIOLATED, SUBSTANTIAL
RIGHTS?
>> THAT GETS BACK TO THE
TESTIMONY OF MR. ROBINSON AND HE
WAS THE PERSON THAT IDENTIFIED
MR. GILLEYLEN AS THE SHOOTER IN
THIS CASE.
WE DON'T KNOW IF THE JURY FOUND
HE WAS A ACCOMPLISH OR THAT THE
JURY FOUND IT NEEDED TO FIND
CORROBORATING EVIDENCE AND
WITNESSES IN THIS CASE PROVIDED
CONFLICTING DESCRIPTIONS OF THE
SHOOTER SO THE JURY COULD HAVE
BEEN RELYING ON MR. ROBINSON'S
TESTIMONY TO PUT HIM THERE AND
WE DON'T KNOW IF THE JURY WAS
APPLYING THE CORRECT STANDARD OR
NOT.
GIVEN MR. ROBINSON'S NEUTRALITY
IN THIS, WE CANNOT SAY THE AIR
WAS HARMLESS IN THIS CASE.
>> WAS THERE CORROBORATING
EVIDENCE?
>> THERE WAS BUT I'M NOT ARGUING
THAT THE CORROBORATING EVIDENCE
IS INSUFFICIENT.
THIS IS AN IMPACT ANALYSIS TO
DETERMINE WHETHER OR NOT HE WAS
HARMED BY THIS.
VERY BRIEFLY ILLUTATION THE
OTHER ISSUE REGARDING THE COURTS
INSTRUCTION THAT THE JURY COULD
ONLY USE EVIDENCE RELATED TO C
J&J W FOR PURPOSE OF THEIR OWN
INVESTIGATION AND THE STATE'S
ARGUMENT AND COURT'S INSTRUCTION
CONFLATED MIS-ABILITY FOR HOW
THE JURY COULD USE EVIDENCE.
THERE'S ARGUMENTSES THAT EVERY
SINGLE TRIAL OF ADMISSIBILITY OF
VARIOUS PIECES OF EVIDENCE AND
WHY THAT EVIDENCE IS RELEVANT,
AND THE COURT DOES NOT IN EVERY
CASE INSTRUCT THE JURY THAT IT
CAN ONLY USE THE EVIDENCE FOR
THAT ONE RELEVANT PURPOSE.
THE STATE DOESN'T CITE AND I
CANNOT FIND A SINGLE OTHER CASE
WHERE AN INSTRUCTION LIKE THIS
IS USED.
IN CRIMINAL CASES, THE ONLY TIME
WE SEE THESE TYPE OF LIMITING
INSTRUCTIONS IS WHERE THERE'S A
CLEARLY PRESCRIBED USE OF
EVIDENCE IN A VERY REAL DANGER
THAT THE JURY WILL USE THE
EVIDENCE FOR THAT USE.
SUCH AS SPRINKLE EVIDENCE OR
IMPEACHMENT EVIDENCE AND THEY
TOOK A CATEGORY OF EVIDENCE
FAVORABLE TO THE DEFENSE AND
LIMITED HOW THE JURY COULD USE
IT.
THE COURT DIDN'T DO THIS FOR ANY
OTHER EVIDENCE IN THE CASE.
THE PROBLEM WITH THE INSTRUCTION
IS THAT IT TOLD THE JURY IT
COULD NOT RELY ON THE EVIDENCE
FOR ANY OTHER PURPOSE AND RELY
ON IT TO DETERMINE THE
INVESTIGATION WAS LACKING IN
SOME WAY BUT COULDN'T TAKE THAT
NEXT STEP.
THANK YOU.
>> THANK YOU, COUNSEL.
WE'LL SEE YOU ON REBUTTAL.
MR. SCHMIDT.
>> MAY IT PLEASE THE COURT,
COUNSEL, JOHN SCHMIDT HANDOUT HN
COUNTY TOWN FOR THE STATE OF
MINNESOTA IT.
IS NOT A CASE THAT ALLOWS THE
COURT TO DECLARE A RULE OF LAW
OR POLICY ON ISSUE OF STATE-WIDE
IMPORTANCE.
THE ISSUES SUFFICIENTS OF THE
EVIDENCE, EVIDENTIARY RULINGS
THAT JURY INSTRUCTIONS ARE
LIMITED TO THIS CASE.
NOT THAT THIS CASE ISN'T
IMPORTANT TO THE APPELLANT OR
HIS FAMILY OR THE VICTIM'S
FAMILY.
REALLY THE ISSUES HERE CALL FOR
AIR CORRECTING APPELLANT VIEW.
WITH THE EVIDENCE SUFFICIENT FOR
PREMEDITATION, NO ABUSE OF
DISCRETION ON THE EVIDENTIARY
RULING OR JURY INSTRUCTION, THE
COURT SHOULD AFFIRM.
I'LL START WITH PREMEDITATION
BUT BEFORE I DO, I'D LIKE TO
PAUSE AND ADDRESS CONCERNS AND
ANSWER QUESTIONS THE COURT MAY
HAVE.
>> ALL RIGHT, I'M GOING TO LEAVE
PREMEDITATION FOR A MEMHET AND
GO -- MOMENT AND GO TO JURY
INSTRUCTION QUESTION OR THE
CROSS-EXAMINATION ISSUE.
YOU HEARD MY EXCHANGE WITH
OPPOSING COUNSEL AND THE THING
THAT TROUBLINGS ME THE MOST IS
THE JURY WAS TOLD SOMETHING THAT
WAS FAULT.
THIS 95% BUSINESS, WHICH STRIKES
ME AS TRYING TO MEASURE INFINITY
GIVEN THAT HE WAS FACING LIFE IN
PRISON WITHOUT THE POSSIBILITY
OF PAROLE.
NOW MAYBE IT'S ENOUGH THAT THE
OPPOSING COUNSEL, COUNSEL FOR
THE DEFENDANT WAS ABLE TO ASK
QUESTIONS ABOUT THE FIRST DEGREE
MURDER AND THE ULTIMATE PLEA BUT
I'M TROUBLED BY TELLING THE JURY
SOMETHING THAT WAS IN FACT NOT
ACCURATE.
WHAT DO WE DO ABOUT THAT, IF
ANYTHING?
>> SHORT TERM ORIENTATION
TOUCHDOWN CATCH TO START WITH TS
PROPOSEDPROPOSED AND THE JURY SL
DO THAT BECAUSE THEY AGREED.
WITH THE 95%, YOU'RE ALLOWED TO
GET INTO THIS BECAUSE YOU AGREED
ON THIS 95% NUMBER.
NOW IN FIGURING OUT WHAT THAT
NUMBER WOULD BE, IT IS TOUGH TO
FIGURE THAT OUT BUT THAT'S
SOMETHING THAT THE PARTIES HERE
AGREED ON, AND THE COURT SAID
I'LL LET YOU USE SIGNIFICANT
DISCOUNT, USE -- LISTED A BUNCH
OF DIFFERENT THINGS THAT COULD
BE USED IN CROSS-EXAMINATION.
SO I THINK FOR PURPOSES OF THIS
CASE HAD THE COURT INDEPENDENTLY
PULLED THAT NUMBER OUT OF THE
AIR, MAYBE THAT'S A PROBLEM BUT
WHEN THE PARTIES PRESENT IT TO
THE COURT AND SAY HERE IS A
SOLUTION SINCE YOU'RE NOT GOING
TO ALLOW ME TO DO WHAT I WANT TO
DORKS HEREBY'S AN AL TERN -- DO,
HERE'S AN ALTERNATIVE.
THIS MAKE IT IS -- IF IT WAS AN
ERROR, A HARMLESS ONE.
>> SOME COURTS, NOT MANY BUT
SOME, AT LEAST ONE STATE COURT
AND I THINK AT LEAST ONE FEDERAL
COURT HAVE HAD -- HAVE HELD THAT
THIS IS A CATEGORICAL THING THAT
IF IT'S LIFE WITHOUT THE
POSSIBILITY OF RELEASE, THE JURY
SHOULD BE TOLD THAT.
I THINK THAT MIGHT BE THE RULE
THAT OPPOSED COUNSEL IS LOOKING
FOR.
WHY ISN'T THAT A GOOD IDEA?
WHY SHOULDN'T GIVEN THE UNIQUE
NATURE OF THAT PUNISHMENT, WHY
SHOULDN'T WE HAVE THAT HERE?
>> THIS WOULD BE A NEW RULE LAW
THAT THE COURT IS ANNOUNCING
THAT HASN'T BEEN APPLIED IN THE
PAST.
>> WE'VE SPOKEN TO LIFE WITHOUT
THE POSSIBILITY OF PAROLE.
THEY'RE DEALING WITH OTHER
SENTENCES.
AM I RIGHT ABOUT THAT?
>> I CAN'T RECALL WHETHER THE
COURT SAID LIFE WITHOUT THE
POSSIBILITY OF PAROLE FOR THIS
PARTICULAR ISSUE, BUT THE COURT
CLEARLY SAID THAT SENTENCING IS
NOT FOR THE JURY, AND IF YOU
INPUT THAT INTO THE QUESTION,
YOU'RE ALLOWING THE JURY TO
SPECULATE AND IN FACT KNOW IN
THIS CASE WHAT THE EFFECT OF
THEIR VERDICT WOULD BE.
>> WHY CAN'T YOU GIVE A
CAUTIONARY INSTRUCTION TO THE
JURY LIKE THEY DID -- LIKE THE
JUDGE DID IN ANOTHER ISSUE HERE
BUT JUST SAY, YOU CAN'T CONSIDER
THAT WHEN YOU'RE -- AND I THINK
THEY PROBABLY DO IN A LOT OF
CASES SAY YOU CAN'T CONSIDER THE
POTENTIAL SENTENCE WHEN YOU'RE
CONSIDERING WHETHER SOMEONE GETS
CONVICTED OR NOT?
>> IT CONJECTED A FACTOR IN THE
ANALYSIS --
>> I'LL ASSUME THAT JURIES
FOLLOW THE COURTS INSTRUCTIONS.
SO WHY NOT HERE?
>> BECAUSE THAT'S AN ISSUE OF
LAW THAT IS FOR THE COURT TO
DECIDE.
>> I UNDERSTAND THAT, BUT WE
ASSUME IF THE JUDGE TEMPORAL
INTEGRATIONS THEM DON'T -- TELLS
THEM DON'T CONSIDER THAT WHEN
DECIDING WHETHER TO CONVICT OR
NOT, FIND SOMEONE GUILT OR NOT,
THE JURY WILL FOLLOW THAT
TRUCKS.
IT'S A IT'S A CHICKEN OR THE EGG
THING AND TELL THENNING THE JURY
DON'T CONSIDER IT.
>> ISN'T THAT TRUE FOR WHENEVER
WE GIVE CAUTIONARY INSTRUCTION?
WE GIVE THEM ON BEHALF OF THE
STATE ALL THE TIME.
YOU WOULDN'T BE MAKING THAT
ARGUMENT THEN.
>> SURE, THERE'S A CAUTIONARY
INSTRUCTION IN THIS CASE AND THE
CAUTIONARY INSTRUCTION ALLOWS
THE JURY TO USE THAT EVIDENCE
FOR A PARTICULAR PURPOSE.
THE JURY HERE WOULD NOT BE USING
THE EVIDENCE FOR A PARTICULAR
PURPOSE BECAUSE THAT IS A
FUNCTION OF THE COURT TO DO
AFTER A GUILTY VERDICT, WHICH IS
TO SENTENCE.
SOT PARTICULAR PURPOSE ON THE
CAUTIONARY INSTRUCTION HERE IS
THAT THERE IS YOU CAN CONSIDER
THIS EVIDENCE FROM THE --
>> I'M SAYING GIVE A DIFFERENT
CAUTIONARY INSTRUCTION WHEN
TELLING THE JURY WHETHER
DECIDING GUILT OR NOT, YOU CAN'T
CONSIDER THE POTENTIAL SENTENCE
THE DEFENDANT WILL FACE.
>> BUT YOU'VE PUT THAT OUT THERE
FOR THE JURY.
>> THAT'S TRUE.
YOU ALWAYS GIVE A CAUTIONARY
INSTRUCTION AND THE STATE
BENEFITS FROM THAT ALL THE TIME.
BUT YOU DON'T WANT THE DEFENDANT
TO BENEFIT FROM THAT IN THIS
CIRCUMSTANCE?
>> WELL, IN THIS CIRCUMSTANCES
UNDER THE COURT'S CASE LAW, IT'S
CLEAR THAT THE PURPOSE OF ASSESS
AASSESSING BIAS OR CREDIBILITY.
>> COUNSEL, MAZARA MARTIN GAVE
OTHER EXAMPLES AND I WONDER IF
OTHER EXAMPLES ARE BEGIN HERE
AND SAYING TWO PEOPLE CAN BE
CHARGED WITH THE SAME OFFENSE
AND MIGHT NOT GET THE SAME
SENTENCE.
MAYBE THAT'S A DISTINCTION
WITHOUT A DIFFERENCE IN TERMS OF
CONCERNS YOU'RE RAISING NOW.
MAYBE NOT A CAUTIONARY
INSTRUCTION BUT JUST INFORMING
THE JURY THAT IT IS POSSIBLE FOR
TWO PEOPLE TO BE CHARGED WITH
THE SAME CRIME AND THEY GET A
DIFFERENT SENTENCE.
>> SURE.
THE COURT CAN CERTAINLY ANNOUNCE
A RULE OF LAW THAT GOES TO BOTH
OF THESE POINTS WHERE YOU CAN IN
A LIFE WITHOUT PAROLE SITUATION
EITHER DO AS YOU'RE SUGGESTING,
JUSTICE HUDSON, WHERE YOU SAY
TWO PEOPLE CAN BE CHARGED WITH
THE SAME CRIME AND HAVE
DIFFERENT SENTENCES OR ANNOUNCE
THE RULE OF LAW IS EXACTLY AS
JUSTICE THISSEN IS SAYING THAT
YOU TELL THE JURY IN THESE
PARTICULAR CASES BUT WHEN YOU
GET DOWN TO IT OF WHAT HAPPENED
IN THIS CASE, THE PARTIES
PROPOSED THE 95%, IT'S ABOUT
BIAS AND CREDIBILITY
DETERMINATION.
>> BUT DOES IT MATTER,
MR. SCHMIDT, THEY PROPOSED IT
BUT AT LEAST WHEN I LOOKED AT
THAT AND THE COLLOQUY BETWEEN
DEFENSE AND DISTRICT COURT, THAT
WAS HIS LAST GASP.
I MEAN HE PUSHED AND PUSHED,
DEFENSE COUNSEL, TO BE ABLE TO
SAY THAT A LIFE SENTENCE IS
MATERIALLY DIFFERENT FOR ALL THE
REASONS THAT MS. MARTIN -- SO IT
WAS A COMPROMISE.
IT'S NOT SOMETHING THAT HE
WILLINGLY OFFERED, PUT IT THAT
WAY.
THAT WAS MY READ OF IT.
>> SURE.
IT GOES TO JUSTICE ANDERSON'S
CONCERNS ABOUT 95%.
SO THE NUMBER PARTICULARLY WAS
SOMETHING THAT WAS PROPOSED BY
THE PARTIES, BUT AT THE HEART IS
THE ASSESSMENT OF BIAS AND
CREDIBILITY AND THERE'S NO
QUESTION THAT THE DISTRICT COURT
ALLOWED THAT TO OCCUR AND
THERE'S ALSO NO QUESTION THAT
THE DEFENSE COUNSEL COULD HAVE
DONE A LOT MORE WITHIN THE
CONFINES AND PARAMETERS THAT THE
DISTRICT COURT SET HERE.
>> COUNSEL, ONE OTHER QUESTION,
DO WE -- IF WE ADOPTED THE RULE
THAT MS. MARTIN IS TALKING
ABOUT.
IT SEEMS TO ME IT WOULD BE A
VERY NARROW RULE AND WOULD APPLY
ONLY TO A VERY SMALL CATEGORY OF
DEFENDANTS, BECAUSE WE'RE
TALKING ABOUT INDIVIDUALS THAT
HAVE BEEN CONVICTED OF
FIRST DEGREE, PREMEDITATED
MURDER WHO BY STATUTE HAVE TO
SERVE LIFE WITHOUT POSSIBILITY
OF RELEASE.
THAT'S A SMALL CATEGORY OF
PEOPLE.
WHAT'S WRONG WITH THAT?
>> WELL, FIRST DEGREE MURDER,
THERE'S OTHER CONVICTIONS WHERE
IT CAN BE LIFE IN PRISON WITHOUT
THE POSSIBILITY OF RELEASE.
THERE'S WITHIN THE SECTION --
CRIMINAL CONDUCT -- CRIMINAL
SEXUAL CONDUCT CASES, THERE'S
POSSIBILITIES TO INDICT SOMEBODY
WITHOUT THE POSSIBILITY OF EARLY
RELEASE.
THOSE ARE A NARROW SET OF CASES
WHERE YOU HAVE THAT POTENTIAL
SENTENCE.
THE ISSUE THAT THE STATE HAS IS
IT'S INCONSIST WITH WHAT THE
COURT PREVIOUSLY SAID.
TWO, IT IS ABOUT ASSESSING THE
BIAS AND CREDIBILITY
DETERMINATION, WHICH YOU CAN DO
WITHOUT INFORMING THE JURY THE
EXACT NATURE OF THE SENTENCE AND
THREE IT'S A FUNCTION OF THE
COURT TO RETURN A VERDICT AND
YOU'RE ALLOWING THE JURY TO
CONSIDER SENTENCING EVEN IF YOU
HAVE THE LIMITATION THAT'S OUT
THERE.
>> WHETHER OR NOT THE JURY WAS
INFORMED OF MR. ROBINSON'S AGE
DURING THE TRIAL AT ALL.
IS THERE EVIDENCE IN THE RECORD
ON THAT AND IF THERE IS, IS THAT
A MATERIAL FACTOR IN LOOKING AT
THIS PARTICULAR CASE REGARDING
ERROR CORRECTION OF THE
EVIDENTIARY RULING THE DISTRICT
COURT MADE ON THIS.
>> I DON'T BELIEVE HIS AGE WAS
TOLD TO THE JURY AND THE JURY
WAS ABLE TO ASSESS BOTH THE
DEFENDANT AND MR. ROBINSON BEING
THAT THEY WERE IN THE COURTROOM
PHYSICALLY AND SO IN TERMS OF
THEIR AGE, THEY CAN GET PROBABLY
A DECENT IDEA OF WHAT 95% MIGHT
MEAN.
IT'S NOT EXACT BUT THEY DID AND
WHETHER IT'S IMPORTANT OR NOT, I
DON'T KNOW THE AGE OF THE POLICE
ACCOMPLICE OR DEFENDANT WOULD
MATTER TO THE POINT IN ASSESSING
THE BIAS OR CREDIBILITY OF THE
PARTICULAR WITNESS WHO IS
TESTIFYING.
>> MR. SCHMIDT, I WANT TO MOVE
TO THE PREMEDITATION ISSUE.
ONE OF THE THINGS THAT WAS IN
RESPONSE TO THE QUESTION WAS
THAT HERE THE DEFENDANT DID NOT
HAVE TIME TO REFLECT AND THE
VICTIM WAS NOT INCAPACITATED AND
CITED TO SEVERAL CASES WHERE
TYPICALLY YOU SEE THE VICTIM
BEING INCAPACITATED AND THERE'S
TIME TO REFLECT IN THERE AND
YOUR THOUGHT ABOUT THAT.
>> TALKS ABOUT WHETHER THERE'S
TIME TO CONSIDER, PLAN, AND
PREPARE FOR DERMATOCOMMIT THE
ACT.
IN THE PAST IT SAYS EVEN A SHORT
PAUSE BETWEEN SHOTS CAN REFLECT
THAT TIME.
IN THIS PARTICULAR CASE, WE HAVE
THE FIRST SHOTS AT THE SCENE
WHERE CARS ARE GETTING OFF THE
HIGHWAY AND THERE ARE DISCHARGE
CASINGS FOUND AT THAT LOCATION
TO CONFIRM THREE SHOTS WERE
FIRED THERE.
THE CARS THEN TRAVEL AND CRASH
AND TIME THAT ELAPSED BETWEEN
THERE.
HE GETS OUT OF THE CAR AND
THERE'S TIME THAT ELAPSES FLAT
CONFIGURATION AND HE CHASES
TOWARDS THE DECEDENT AND TIME IS
ELAPSING AND YOU'RE CORRECT,
THERE WAS A PERSON IN THE STORE
WHO OBSERVED HIM TAKE THIS
SHOOTER STANCE AND FIRE TWO MORE
SHOTS NEAR WHERE THE OTHER CAR
HAD CRASHED.
MORE TIME ELAPSES GOING TOWARDS
THE ALLEY.
MORE TIME ELAPSES AS HE RUNS
DOWN THE ALLEY AND AS THE
WITNESS SAID HE THEN EXTENDED
HIS ARM, POINTED THE GUN AND
FIRED TWO SHOTS AND THE OTHER
PERSON FELL.
ALL OF THAT SHOWS THERE'S
SUFFICIENT TIME TO DERMATOCOMMIT
FROM THAT SHOOT -- DETERMINE TO
COMMIT FROM THE PREMEDITATION
CHARGE.
WHERE THE BLOOD SUBTANS WAS
FOUND IN THE ALLIE -- SUBSTANCE
WAS FOUND IN THE ALLEY AND THE
DISCHARGED CASINGS GOES TO THE
NATURE OF THE KILLING THAT
THERE'S REASONABLE INFERENCE
THERE THAT'S LIKELY AT A CLOSE
RANGE BUT ALSO WHERE THE
DECEDENT WAS SHOT, WHICH WAS IN
THE HEAD.
THE EXTENDING OF THE ARM AND
POINTING THE GUN AT HIS HEAD
GOES TO PREMEDITATION.
THERE'S TIME THAT ELANSED IN THE
EX--- ELAPSED IN THE EXTENSION
OF THE ARM.
GIVEN THE TIME IT ELAPSED WITH
THE CARS GETTING OUT --
>> EVEN THE POINT TO EXTENDING
HIS ARM IS ENOUGH TIME TO CREATE
PREMEDITATION AND YOU DON'T
REALLY MEAN THAT A CASE WHERE
SOMEONE JUST EXTENDS THEIR ARM
CREATES PREMEDITATION.
>> IF THAT WERE THE ONLY SHOTS
FIRED, THEN NO.
THAT WOULD -- I DON'T KNOW THAT
AND IT DEPENDS ON THE FACTS IN
THE CASE.
I WOULD NOT ARGUE THAT'S ENOUGH.
THE EVIDENCE OF THE WITNESSES
AND THE DEFENSE STRATEGY AND HAD
DISENVOWED THE -- DIS-AVOWED THE
PERPETRATOR STANCE AND IT'S THE
PROP EVIDENCE WHEN OTHERWISE
YOU'D BE BRINGING IN PERPETRATOR
EVIDENCE.
>> DID THE DEFENSE OBJECT TO
THAT INSTRUCTION?
>> I THINK THE DEFENSE HAD AN ON
GOING OBJECTION.
THERE WAS EVIDENCE OF OBJECTION
IN THAT.
>> THE DEFENSE DID NOT LIST
THESE PEOPLE AS ALTERNATIVE
PERPETRATORS?
>> YES.
AND BOTH PEOPLE WERE FULLY
DISCLOSED WELL BEFORE THE
EVIDENCE OF THE FINGERPRINT ON
THE CASING WAS DISCLOSED, BUT IT
WAS NOT NOTICED AS ALTERNATIVE
PERPETRATOR EVIDENCE AND THEY
WERE CAL CENTER CREEDING THE
EVIDENCE D CHALLENGING THE --
CHALLENGING THE INVESTIGATION
OPPORTUNISTIC THE POLICE.
>> THE LAST FRAISE IT CAN'T --
PHRASE IT CAN'T BE USED FOR ANY
OTHER PURPOSE.
WAS THAT DISCUSSED WITH THE
INSTRUCTION?
WHAT WAS THE POINT OF THAT, THAT
PARTICULAR LANGUAGE?
>> THE -- THAT PARTICULAR PHRASE
WAS TO THE OBJECTION OF THE
INSTRUCTION AS A WHOLE.
THAT PARTICULAR PHRASE MAY NOT
HAVE HAD A SPECIFIC OBJECTION.
THE POINT OF THAT THOUGH IS TO
LIMIT IT TO WHAT COMES BEFORE
THE INSTRUCTION, WHICH IS
EVIDENCE IS FOR THE IT'S JUST
FOR THAT PURPOSE.
>> OPPOSING COUNSEL SUGGESTS
THAT'S AN UNUSUAL LIMITATION IN
A CRIMINAL CASE, DO YOU AGREE OR
DISAGREE?
>> I DISAGREE BASED ON WHAT THE
COURT HAS SAID IN TRAN.
TRAN SAID IT IS APPROPRIATE TO
LIMIT EVIDENCE AND TO >> UNLESS
THE COURT HAS ANY OTHER QUESTION
S?
>> MR. SCHMIDT, I HAVE A
QUESTION ON THE COMPOSTING
INSTRUCTION QUESTION, IS THE
STATE TAKING THE POSITION THAT
THE DISTRICT COURT DID NOT ERE
AS A MATTER OF LAW GIVEN
MR. ROBINSON'S ABILITY TO BE
INDICT AND CONVICTIONED FOR
ESSENTIALLY THE SAME CRIME AS
THE -- CONVICTED ESSENTIALLY FOR
THE SAME CRIME AS THE PLAINTIFF?
>> IT WAS AN ERROR BECAUSE HE
WAS CHARGED WITH THE SAME CRIME
BUT NOT A PLAIN ERROR BECAUSE
THE PARTIES AGREED TO IT AND
THAT THERE ARE CIRCUMSTANCES
WHERE THE ACCOMPLICE AFTER THE
FACT IS NOT AN ACCOMPLICE AND
ROBINSON WAS CHARGED WITH AIDING
AND ABEDDING AFTER THE FACT
AND -- ABETTING AFTER THE FACT
AND WE DON'T KNOW WHAT WAS
DISCUSSED IN CHAMBERS AND CAME
OUT AND DID NOT OBJECT TO IT.
THERE IS A POSSIBILITY THAT THIS
IS A FACT QUESTION.
GIVEN THE CHARGE AND THE PLEAD
OF AIDING AND ABETTING AFTER THE
FACT.
I DON'T THINK IT'S PLAIN ERROR
FOR THE JUDGE TO ASSERT HIMSELF
IN WHATEVER WAS AGREED UPON AND
GIVE THIS INSTRUCTION.
THE STRONGEST ARGUMENT OF THE
STATE, I DON'T THINK THE COURT
NEEDS TO GO THROUGH BUT NO
SUBSTANTIAL RIGHTS WERE AFFECTED
GIVEN THE STATE'S CLOSING
ARGUMENTS TO FIND HIM AN
ACCOMPLICE.
>> IS AIDING AND ABETTING A LIFE
SENTENCE CRIME WITHOUT THE
POSSIBILITY OF RELEASE?
>> I DON'T KNOW.
I'M NOT SURE.
>> IS THAT ALL HE WAS CHARGED
WITH WAS AIDING AND ABETTING?
>> THAT WAS THE PLEA WAS AIDING
AND ABETTING AFTER THE FACT.
>> HE WAS CHARGING WITH AIDING
AND ABETTING AND PREMEDICATED
MURDER?
>> I BELIEVE SO.
>> OKAY.
>> UNLESS THERE'S ANY OTHER
QUESTIONS, WE ASK THAT THE COURT
AFFIRM.
>> THANK YOU, COUNSEL.
MS. MARTIN.
FIVE MINUTES FOR REBUTTAL.
>> THANK YOU.
I'D LIKE TO ADDRESS A FEW POINTS
--
>> JUST PULL THE MICROPHONE DOWN
A LITTLE IF YOU WOULD, PLEASE.
THANKS.
>> LIKE TO ADDRESS A FEW POINTS
THAT COUNSEL MADE.
FIRST OF ALL TRAN, THE CASE DOES
NOT INVOLVE THE INSTRUCTION LIKE
THE INSTRUCTION GIVEN IN THIS
CASE MUCH THE QUESTION IN THAT
CASE WAS WHETHER ALTERNATIVE
PERPETRATOR EVIDENCE WAS
ADMISSIBLE OR NOT.
AGAIN, THAT GETS TO THE POINT
THAT THERE'S CONFLATING
INADMISSIBILITY OF EVIDENCE IN
WHAT THE JURY CAN USE IT FOR.
I WANT TO BE ABSOLUTELY CLEAR
THAT DEFENSE DID OBJECT TO THIS
QUESTION.
REGARDING THE LIMITATION OF
CROSS-EXAMINATION, COUNSEL
SUGGEST THAT HAD THIS RULE WOULD
BE IN-- SUGGESTED THAT THIS RULE
WOULD BE INCONSIST WITH TENT WIH
PRIOR CASE LAW AND --
INCONSISTENT WITH PRIOR CASE LAW
AND SHOW IT'S MADE CLEAR THERE
MAY BE SITUATIONS WITH THE
RIGHTS OUTWEIGH THE STATE'S
INTEREST IN NOT LING THE JURY
INFER THAT THE SENTENCE SENTENCE
THAT A DEFENDANT WAS FACING.
THIS SITUATION WHERE THE WITNESS
FACES LIVE WITHOUT THE -P
POSSIBILITY OF RELEASE IS ONE OF
THE CIRCUMSTANCES.
THAT IS WHAT MR. ROBINSON WAS
FACING AND HE WAS INDICTED FOR
PREMEDITATED MURDER.
>> COUNSEL, JUST TO CONFIRM I
DON'T THINK WHITE OR FERGUSON
DEALT WITHOUT THE LIFE WITHOUT
THE POSSIBILITY OF RELEASE?
>> YOU'RE CORRECT.
NONE OF THE CASES INVOLVING THIS
ISSUE DEALT WITH LIFE WITHOUT
THE POSSIBILITY OF RELEASE AND
IN EVERY SINGLE ONE OF THE
CASES, DOBBINS, AND DIVERNY AND
FURRINGFERGUSON AND WHITE INVOLD
DETERMINANT SENTENCES.
>> COUNSEL, MR. SCHMIDT WAS
HELPFUL IN CORRECTING ME THAT WE
WOULDN'T JUST BE TALKING ABOUT
INDIVIDUALS -- IF WE CREATED THE
RULE THAT YOU'RE REQUESTING, WE
WOULDN'T JUST BE TALKING ABOUT
INDIVIDUALS CONVICTED OF THE
FIRST DEGREE MURDER AND THAT'S
BROADENS THE GROUP PRETTY
SIGNIFICANTLY AND STILL A NARROW
GROUP OF PEOPLE BUT IT'S NOT
JUST FIRST DEGREE PREMEDITATED
MURDER.
>> I WOULD AGREE THAT WOULD
BROADEN IT AND CERTAINLY
OVERRULE IT ANY TIME WITHOUT THE
POSSIBILITY OF PAROLE SENTENCE.
HOWEVER THE NUMBER OF CASES
TOTAL THAT WOULD HAPPEN IN, I
THINK THAT IN FIRST DEGREE
MURDER CASES THERE'S MORE LIKELY
TO BE THE SITUATION COMING UP
WHERE THERE'S ACCOMPLICES IN A
CRIMINAL SEXUAL CASE.
>> IF SOMEONE CAME IN WITH A 40
YEAR SEASONS ARKANSAS SENTENCE
AND UNDER OUR -- SENTENCE UNDER
OUR CURRENT LAW WOULDN'T BE ABLE
TO TALK ABOUT THE CIRCUMSTANCES
AND THEY MADE AN EQUAL
PROTECTION CHALLENGE AND SAY
PEOPLE FACING LIFE WITHOUT THE
POSSIBILITY OF RELEASE, GET --
CAN HAVE THE APOPYLE ACCOMPLICES
SENTENCE PUT INTO EVIDENCE BUT
SOMEONE FACING 40 YEARS CAN'T.
HOW WOULD YOU JUSTIFY ASIDE FROM
SAYING LIFE WITHOUT PAROLE IS
DIFFERENT.
I'M ASKING WHY IS LIFE WITHOUT
RELEASE DIFFERENT?
ASIDE FROM JUST SAYING THAT AND
ASSERTING THAT, TELL ME WHY THAT
IS.
>> IT'S DIFFERENT FOR TWO
REASONS AND ONE IS THE IDEA OF
GOING TO PRISON AND NEVER LEAVE
ASKING DIFFERENT THAN LEAVING AT
SOME POINT.
BUT THE OTHER REASON IS IT
REALLY GETS TO THE CONCERN THAT
WHAT THE JURY IS GETTING IN THIS
CASE IS FALSE INFORMATION.
THE DETERMINANT SENTENCE SAYING
THAT YOU --
>> WHAT ABOUT THE FACT IT WAS
DEFENSE COUNSEL THAT SAID 95%.
THE JUDGE GAVE THEM THE CHOICE
OVALOF A SUBSTANTIAL REDUCTION.
THE DEFENSE COUNSEL WASN'T
FORCED TO SAY 95%.
>> THAT'S CORRECT, YOUR HONOR,
BUT THE DEFENSE COUNSEL IN THIS
CASE WAS ATTEMPTING TO BE ABLE
TO CROSS EXAMINE ON LIFE WITHOUT
THE POSSIBILITY OF RELEASE.
THE 95% WAS WHAT THEY CAME TO
AFTER THE COURT RULED AGAINST
THAT.
>> THEY DIDN'T HAVE TO DO THAT.
THEY COULD HAVE USED SOME
OTHER -- TO YOUR POINT THAT --
YOU MAKE TWO POINTS.
ONE IS THE FALSITY.
THAT ONLY GOES TO THE 95% AND HE
COULD HAVE CHOSEN SOME OTHER
METHODOLOGY TO GET THERE.
THAT DOESN'T ANSWER THE QUESTIOG
SOMEONE'S PSYCHOLOGY WHEN
THEY'RE WALKING INTO PRISON
WITHOUT THE CHANCE TO COME OUT
IS SO DIFFERENT THAT THEY'RE
THAT MUCH MORE LIKELY TO LIE
THAT A JURY NEEDS TO UNDERSTAND
THAT COMPARED TO SOMEONE GOING
IN AND BEING THERE FOR 40 YEARS?
THIS IS LIKE A PURELY
PSYCHOLOGICAL THING.
>> THAT'S CORRECT; YOUR HONOR.
>> COULD COUNSEL, CORRECT ME IFM
WRONG BUT ISN'T THAT WHAT THE
COURT SAID IN LARSON THAT'S OUT
OF THE SEVENTH CIRCUIT OR NINTH
CIRCUIT, I CAN'T REMEMBER WHICH,
BUT IT'S THE MAGNITUDE OF THE
INCENTIVE THAT THAT'S WHAT
YOU'RE FOCUSED ON; RIGHT?
>> THAT'S CORRECT, YOUR HONOR.
IT IS THE MAGNITUDE OF THE
INCENTIVE.
>> THANK YOU, COUNSEL.
YOUR RED LIGHT'S ON.
THANKS TO BOTH COUNSEL TO THE
HELP YOU PROVIDED IN THIS CASE.
THIS MATTER IS SUBMITTED AND
ISSUE A DECISION IN DEW DUE COU.