2.Pending Motions and Voicemail Testimony
21 linesTHE COURT: Okay. In terms of -- I try to keep an inventory of matters that arise during the trial that have not been resolved. One of those items is the fair testing motion which the defense renewed back on February 27th. If there's time, after the last witness today, I would suggest that the Court hear argument on that today.
Mr. Buting gave some argument at the time of the motion. Mr. Gahn requested time to respond. I could hear argument from the State, any rebuttal from Mr. Buting, and, hopefully, resolve that matter today.
I also took under advisement, also Mr. Buting's request, to introduce evidence concerning the voice mails and whether or not they were accessed on November 2nd, or that the details of them being accessed. I believe at the time I reserved ruling. The parties were going to conduct some discussions with each other to see if the matter could be resolved or if additional evidence was necessary. What is the status of that motion at this time?
MR. KRATZ: Additional evidence, your Honor, is going to be necessary. Mr. Strang and Mr. Buting have agreed to telephone testimony from a Cingular technician. We anticipate that to be sometime tomorrow, probably tomorrow morning. That will be supplemented with the State recalling Mike Halbach. But that combination of witnesses should resolve that matter. And, again, the defense has been kind enough to allow telephone rather than live testimony in that matter.
MR. STRANG: That's right. And I have also, at least suggested in an email last night to Mr. Fallon -- and I can't remember if I copied Mr. Kratz and Mr. Gahn or not -- but suggested that a stipulation as to one or both of the Cingular witness and Mike Halbach, stipulation as to one or both of those witnesses is conceivable. And at least we could try, at least take a stab at that. I don't know whether either side in the end would stipulate, but it's worth a discussion.
If we go forward with testimony and not a stipulation from the Cingular person, we're, of course, working on the assumption that the Cingular person at the other end of the telephone would have the same documents in front of him or her that we have here, so that the person can be questioned about the documents and I'm quite certain that the State shares that.
MR. KRATZ: We actually copied three Court exhibits this morning and faxed them to that person as well.
MR. STRANG: Great.
MR. KRATZ: So we're working all from the same pages, Judge.
THE COURT: Very well.
MR. STRANG: And the remaining -- While the Court is taking inventory, the remaining issue of which I'm aware was my renewed motion to suppress the results of searches of the Avery trailer and the garage and the area behind the garage. I think we settled on after the November 5 search that began at about 7:30 p.m. and ended about 10:05 p.m.
I had renewed that, oh, several days ago. I think the State, again, reserved response for wanting to be heard on that. And that's my recollection of the issue that remains ripe for decision, or at least further argument and decision.
MR. FALLON: I was under the impression that we did argue it and the Court decided you would rule later, after hearing the argument that Mr. Strang and I made last week.
MR. STRANG: Well, actually, that's -- that is right, because now that I hear Mr. Fallon, I recall his eloquence in responding. And the Court at the time I think, if memory serves, said it would not hear reply from me now or at that point, but we would address the issue in some fashion later.
THE COURT: All right. I will -- do the parties remember what day that was? I would like -- I'm going to review the transcript.
MR. STRANG: It may have been February 22, but I can't promise.
MR. FALLON: I would have to look at a calendar.
THE COURT: I do recall that as well.
MR. FALLON: I'm trying to remember who the witness was, right before a particular witness. Right now, for the life of me, I can't think of that.
THE COURT: All right. Well, we'll attempt to recreate that a bit later. Are the parties ready for the jury to come in?
MR. STRANG: Yes.
MR. KRATZ: Yes.
THE COURT: All right. We'll bring in the jurors at this time.
(Jury present.)
THE COURT: You may be seated. Welcome back members of the jury. At this time we are ready to proceed with the testimony. Who will be questioning? Mr. Fallon, you may call your first witness.