Filing # 73408698 E-Filed 06/12/2018 09:32:26 AM. 1482 1 IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN 2 AND FOR DUVAL COUNTY, FLORIDA. 3 Case No: 2013-CF-5781-AXxx-MA 4 Division CR-D 5 6 STATE OF FLORIDA 7 -vs- 8 DONALD JAMES SMITH, 9 Defendant, 10 ~ 1 12 TESTIMONY AND PROCEEDINGS taken before the 13 Honorable Mallory D. Cooper, Judge of the Circuit Court, 14 on February 20, 2018, and as reported by Faye M. Gay, 15 Certified Realtime Reporter, Registered Merit Reporter, 16 and Certified Legal Video Specialist. a 18 19 20 22 23 OFFICIAL REPORTERS, INC. 24 421 W. Church St., Suite 701 Jacksonville Florida 32202 25 904-358-2090 ACCEPTED: DUVAL COUNTY, RONNIE FUSS! . CLERK, 06/14/2018 02:36:03 PM10 a 12 13 14 15 16 aq 18 19 20 21 22 23 24 25 1483 APPEARANCES: MELISSA NELSON, Esquire, State Attorney, Appearing on behalf of the State of Florida. MARK CALIEL and VANESSA WHEELER-SANCHEZ, Esquires, Assistant State Attorneys, Appearing on behalf of the State of Florida JULIE SCHLAX and CHARLES FLETCHER, Esquires, Appearing on behalf of the Defendant.10 a 12 13 14 15 16 aq 18 19 20 21 22 23 24 25 PROCEEDINGS PROCEEDING Opening Statement of Ms. Opening Statement of Mr. Nelson.. Fletcher 148410 a 12 13 14 15 16 aq 18 19 20 21 22 23 24 25 1485 STATE WITNESSES WITNESS PAGE KERRI-ANN BUCK Direct Examination.....esseeeseeeeeeee Cross-examination 1531 153810 ql 12 13 14 15 16 aq 18 19 20 21 22 23 24 25 DEFENSE WITNESSES WITNESS PAGE DR. DANIEL BUFFINGTON Examination on Proffer..... Examination on Proffer.. Direct Examination......... Cross-examination Redirect Examination....... 1547 1553 1618 1643 1656 DR. HEATHER HOLMES Direct Examination.... Cross~examination.......... Redirect Examination....... 1570 1598 +1609 MICHAEL BOSSEN Direct Examination.... Cross~examination.........- Redirect Examination.. Recross~examination........ 1662 1695 1704 1705 DR. GEOFF COLINO Direct Examination......... Cross-examination..... Redirect Examination....... 1708 1743 1758 148610 a 12 13 14 15 16 aq 18 19 20 21 22 23 24 25 DESCRIPTION Defense's Exhibit No. DEFENSE EXHIBITS 1 thru 9. PAGE 1569 148710 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1488 (Jury absent.) (Defendant present.) THE COURT: Still missing four? BAILIFF: Yes, ma'am. THE COURT: We still don't have all our jurors. So there are some preliminary matters we could resolve while we wait for them? MR. CALIEL: Yes, Your Honor. Your Honor, for the record, and I have discussed this with defense counsel, T have deposed a number of these defense experts that were listed in mitigation and based upon the opinions that were tendered in deposition and in some reports I think it would be appropriate to have a colloquy at this point in time with the defendant regarding the defense strategy. I would almost equate it to being an admission to a lesser included offense based upon what the experts provided in deposition and the opinions that they've tendered. There's going to be a considerable amount of evidence presented to this jury which one may deem painting the defendant in a very bad light. It's evidence that if the defense chose not to introduce this evidence that there's no way the10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1489 State could introduce this evidence in a penalty phase because it does not meet the requirements of the law, particularly when it comes to prior Jimmy Ryce commitments, prior convictions, his contacts with the criminal justice system, all of which we would not be able to put before this jury. And based upon the light in which it paints Mr. Smith, I think that we need to have a colloquy on the record with the defendant that he understands these -~ these witnesses will be testifying, that there's a number of matters that they will discuss that are extremely damaging to the defendant's character and, arguably, obviously the defense is going to argue it for mitigation purposes, but this is very damning evidence that the defense is going to put forward that we could not put forward before this jury. And I think there has to be a discussion about that. MS. SCHLAX: Your Honor, we're prepared to do so THE COURT: All right. Would you place Mr. Smith under oath, please? THE CLERK: Please raise your right hand (Defendant sworn.) THE DEFENDANT: TI do.10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1490 THE COURT: Mr. Smith, were you able to hear everything that Mr. Caliel just put on the record? THE DEFENDANT: Yes. THE COURT: Have you had a lot of time or ample time to talk with your attorneys about preparation and what type of defense they wish to present to the jury during the penalty phase? THE DEFENDANT: Yes, ma'am. THE COURT: Do you understand that some of it is information which had they not chosen to do that the State would not be able to introduce? THE DEFENDANT: I understand that. THE COURT: And additionally, I'll just use Mr. Caliel's words, some of it is damning to your character. Do you understand that? THE DEFENDANT: Yes. THE COURT: And are you okay with that defense strategy? THE DEFENDAN’ I have no objection to her defense, no. THE COURT: Okay. MS. SCHLAX: And, Your Honor, if I can specify just so the record is absolutely clear. Dr. Heather Holmes will be the first witness called by the defense during the penalty phase.10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1491 Dr. Holmes did prepare her written report which was provided to my client. She then was deposed and that deposition was provided to my client. In that deposition, as well as her report, she talks about reviewing the history and the psychiatric history of my client extensively, reaching her own diagnoses, which in many ways are not favorable but that is what we're dealing with. Additionally, it is our intention, and we've had ample time to discuss, that we will be asking the Court to take judicial notice of multiple prior convictions of Mr. Smith and it's our position and our specific strategy that we will be explaining to the jury that this is just further evidence of the mental illness that he suffers from. We've had ample time to discuss that. 1 believe Mr. Smith has very competently understood the risks with such presentation, but that's what we're proceeding with. THE COURT: Did you understand all of that Mr. Smith? THE DEFENDANT: I did. THE COURT: Okay. MR. CALIEL: Your Honor, just one thing further, and we had a conversation with defense10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1492 counsel, that Ms. Nelson is going to foreshadow that in her opening statement and the defense has no objection to us doing that. Obviously it's not going to be burden-shifting, but there's been a witness list, there's been a judicial notice request for the Court and I think everybody anticipates what evidence is going to be presented and I don't think anybody is trying to play procedural games here by saying it somehow burden-shifts. So the defense has no objection to Ms. Nelson mentioning that, however briefly, in the opening statement THE COURT: Is that correct? MS. SCHLAX: I certainly think she can anticipate that I have filed previously the request for judicial notice. We have every intention of introducing these. I would obviously, caution there shouldn't be any argument at this stage of the proceedings. THE COURT: Correct. And I'm sure that there won't be. But back to Mr. Smith, You understand all of this? THE DEFENDANT: Yes, ma'am. THE COURT: Have you had ample time to speak10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1493 with your attorneys about this strategy? THE DEFENDANT: Yes, ma'am. THE COURT: Do you need anymore time to speak with them about this strategy? THE DEFENDAN' : None. THE COURT: And we've gone over, I don't want. to keep doing it, but you're 61 years old correct? THE DEFENDAN' : Yes, ma'am. THE COURT: And you have, I believe a high school education, but also a work history, is that correct? THE DEFENDANT: That's correct. THE COURT: And you've had no difficulty in the past understanding these proceedings, is that correct? THE DEFENDANT: ‘That's correct. THE COURT: And do you have any difficulty understanding what we're talking about today? THE DEFENDANT: No, ma'am. THE COURT: Okay. I do find that Mr. Smith is freely and voluntarily adopting the defense strategy, that he understands the risks, and that he feels that that is the strategy they should use.10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1494 Is that correct, sir? THE DEFENDANT: That's correct. THE COURT: Okay. There's two other things well, I'm sorry. I didn't mean to interrupt you. MR. CALIEL: I apologize, Your Honor. One additional thing I'll present to the Court at this point in time, for the State's presentation of evidence in this case the parties have agreed and the defendant has signed off on a stipulation as to the attempted kidnapping conviction. And I would just present that to the Court. Following the testimony from the witnesses that we intend to call, we would just ask the Court to read into the record the stipulation of the parties THE COURT: Is that correct? MS. SCHLAX: ‘That's correct, Your Honor. THE COURT: I do have a stipulation that is signed by Mr. Smith as well as Ms. Schlax, on the back Mr. Smith and one of the attorneys for the State. Whose signature? MR. CALIEL: That would be my chicken scratch, Your Honor THE COURT: Okay. I think I'll recognize it in the future.10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1495 A couple of other things. In the preliminary instructions there's, again, an instruction about Mr. Smith's right to remain silent. Do you wish me to read that? MS. SCHLAX: Yes, Your Honor. THE COURT: And, additionally, I think we've discussed the fact that apparently the defense has chosen not to have Mr. Smith dressed out in civilian clothes, is that correct? MS. SCHLAX: That is correct, with one caveat, Your Honor. We need our client to be unshackled so that he can take notes and appropriately communicate with us THE COURT: Well, I guess we might have to put something on the record from someone other than me, but it's my understanding that there are two avenues. One is you're dressed in civilian clothes with the knee brace or you're dressed in jail clothes with the four points and there's not any other option, but I'm not testifying to that. That's just my understanding. We do need to put that on the record. MS. SCHLAX: Yes, Your Honor. Because it puts us in a predicament that we need to be able to effectively communicate with our client and10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1496 oftentimes that is by in notes THE COURT: Well, it looks to me like he could write it. THE DEFENDANT: I can't. THE COURT: Did you sign this stipulation? THE DEFENDANT: Yeah, they took the handcuffs off to do that. I mean, if necessary, I'll dress out. THE COURT: Well, that's something that apparently you and your attorneys have discussed as to whether or not that is part of your strategy and I'm not trying to interfere with your strategy. Your strategy is what it is. But T don't make the rules at to what people can wear in court so I guess we need to get something on the record. BAILIFF: Can I see you for a second, please? THE COURT: Yes. (Bailiff approached side-bar.) THE COURT: All right. There is a procedure if you request it. We'll have to do that before the jury comes out. But before I do that T need to get back to whether or not Mr. Smith understands that having to wear the jail clothes is part of the defense10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1497 strategy. THE DEFENDANT: Yes, ma'am, T do THE COURT: Because you could, if you wish be dressed in civilian clothes. THE DEFENDAN' : Yes. THE COURT: But it's apparently important, for whatever reason, because I don't know what I'm going to hear, you know, in the next couple of days, but it's important for your argument regarding your position that you be dressed in your jail clothes. We are, however, going to change the restraint. Do you understand that? THE DEFENDANT: Yes, ma'am. THE COURT: And you agree with that? THE DEFENDANT: I do. THE COURT: Okay. I do find that Mr. Smith is freely and voluntarily agreeing to remain dressed in jail clothes. We will change his restraint because I've been informed differently than I was originally and we'll take care of that prior to the jury entering into the courtroom so there's no switching around while they're in here. So that will take us a few minutes. I'll step in the back. Before I do that, is10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1498 there anything else we need to put on the record? MR. CALIEL: Nothing else from the State Your Honor. MS. SCHLAX: The only other issue I bring to the Court's attention is one of our experts, Dr. Daniel Buffington, is already physically here at the courthouse. He has requested, I think it's a matter of the Court's discretion on whether or not to allow him to watch the proceedings before and after he testifies. I know the State objects to it. I think experts are excepted in regards to the rule of omitting witnesses from hearing one another. So we'd request for him to be able to be in court. MR. CALIEL: Well, Your Honor, this expert is actually testifying as to his expertise in pharmacology and the effects of drugs on the system and the cognitive abilities of the defendant. I'm not quite sure with the testimony relating to a 1992 conviction why it would be relevant. And the fact that he has not reviewed any of these materials before today creates problems When I deposed him, he was provided information10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1499 from the defense counsel and their mitigation specialist. At that point in time he had had a 15-minute phone conversation with the defendant. It's my understanding, Mr. Fletcher, that since there's been one face-to-face meeting with the defendant since he was deposed But based upon that, I don't believe that there was a reliance on the testimony of the witnesses who are going to be testifying. THE COURT: The deposition was taken by the State, correct? MR. CALIEL: It was. THE COURT: How -- I don't see how if they deposed him all the information on which he's relying -- I don't know enough to know what he's testifying about or what period of time he's testifying about, but if the State's had an opportunity to depose him on what information he apparently was going to use for his testimony, and he gathers more information, then they're put in a position of not being able to depose him on that prior. Now, afterwards, if he's not going to be called again, I would not think there's any objection, then I'm going to let him be in the courtroom, of course, but prior to his testimony10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1500 I'm not sure that would be the right thing to do. MS. SCHLAX: Okay. THE COURT: I'll deny the request to have him sit in the courtroom prior to his testimony And does the State object also to him being in the courtroom after his testimony? MR. CALIEL: Your Honor, after he testifies I have no objection to that. Like I said, based upon his expertise, which we got his CV and we've deposed him in regards to what he's considered. 1 just don't believe him considering the testimony of other defense experts that he hasn't already previously discussed is appropriate because if it changes something, like the Court says, then that's going to put us in a position that we're not expecting. THE COURT: All right. Then we'll proceed in that manner. He will not come in until he testifies and he may remain as long as he wishes. MS. SCHLAX: Yes, Your Honor. THE COURT: Anything else? MS. SCHLAX: No, Your Honor THE COURT: All right. We'll have to take a short recess to readdress -- or address the restraints.10 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1501 THE DEFENDANT: Thank you. THE COURT: Thank you. We'll be in recess for a few moments. (Recess.) (Defendant present.) THE COURT: We're still waiting on one more juror so we're not able to proceed I do need to tell everybody that one of the monitors was not working in the jury box this morning. They fixed it, it is working, but in order for it to work part of the panel is down against the back wall instead of close in. I'll explain to the jurors that are in that panel that it does allow for the monitor to work and I'll instruct them going in be careful walking past that, although it's not really in their way So we'll be in recess until we have our 16th juror. Thank you. MS. SCHLAX: Yes, Your Honor. (Recess.) (Jury absent.) (Defendant present.) BAILIFF: They're ready, ma'am. THE COURT: All right. TI think we're ready