2.Motion for Judgment of Acquittal
13 linesMR. STRANG: I -- I'll -- I'll be happy to argue those, Your Honor. The -- the State now having rested its case in chief, um, my motion is for judgment of acquittal on all four counts, uh, now under consideration, and -- and I -- I don't know if there's been a second Amended Information filed or not. I maybe just don't remember right now, but we've -- we've at least referred to the four remaining counts here as, uh, Count 1, first degree intentional homicide; uh, Count 2, I think, is mutilating a corpse; as I recall, Count 3 is the felon in possession of a firearm count; Count 4 is, uh, false imprisonment. So I move for a judgment of acquittal and dismissal, uh, on all four counts.
Um, the -- the -- the argument I make, uh, as to all four is that all of the evidence presented in the State's case in chief, viewed in the light most favorable to the State, drawing all reasonable inferences, um, in favor of the State at this point, but, of course, drawing no unreasonable inferences that way, um, still, um, by that standard, the evidence is insufficient to warrant a reasonable fact finder in returning verdicts of, uh, guilty on any of the four counts under consideration, um, so whether we call it a directed verdict or dismissal, uh, or an acquittal, um, the relief we seek, uh, really is the same, functionally, uh, now that the State has rested its ca -- its case.
That's, as I say, the -- the -- the general argument, and as to the first three counts, I'll -- I'll stand on that argument.
I do want to amplify with some more specific comments on Count 4, the false imprisonment charge. When Mr. Avery first was charged with murder of Teresa Halbach in November, 2005, um, he faced two charges with respect to that core set of allegations by the State. One charge was first degree intentional homicide and one was mutilating a corpse. Those were joined, I think, without objection from the defense, with the very first charge filed against Mr. Avery as a matter of chronology under this case number, which was the felon in possession of a firearm, or at least that was the, uh -- the warrant on which he was arrested.
So those three charges together stood until, um, the State, uh, obtained some statements from Brendan -- Brendan Dassey in the end of February and the first day of March, 2006.
On March 1 and March 2, 2006, as this record shows, and as we -- we had discussed a number of times, uh, agents of the State appeared at televised news conferences and laid out a chilling, gripping story of the last minutes, or perhaps hours, of Teresa Halbach's life. And that story, in large part, was reflected in the Criminal Complaint about -- at about the same time against Brendan Dassey, and much of that story found its way into the Amended Criminal Complaint against Steven Avery, but added three more charges. Those were first degree sexual assault, kidnapping, and false imprisonment.
Added so far as the Complaint made clear, and so -- insofar as any viewer of these news conferences would have concluded, added on the basis of Brendan Dassey's supposed confession and allegations.
Now, we argued at -- at the time, I think indisputably, the inadmissible nature of Brendan Dassey's statements against Mr. Avery. We lost that argument.
We sought to subject the new allegations to the minimal testing of a preliminary hearing. We lost that argument.
We sought an interlocutory appeal, or a permissive appeal, because we thought strongly that Wisconsin law required the ta -- the State to put up or shut up to some degree, at least to a probable cause level of admissible evidence, on those three new charges. The Court of Appeals declined to hear the permissive appeal.
This Court raised, by 50 percent, as I recall, Mr. Avery's cash bail on the basis of the new allegations attributed to Brendan Dassey. And shortly before this trial, two of those three added charges the State abandoned, acknowledging the obvious to everyone else that the State couldn't prove first degree sexual assault, the State couldn't prove kidnapping, the State had no admissible evidence. Indeed, I'm not sure the State has inadmissible evidence to support those two charges. But over my objection, and in the face of my motion to dismiss false imprisonment as well, the State persisted, asserted its right to decide what to go to a jury on, and at least implicitly represented to the -- to this Court that it would offer evidence sufficient to establish at least the false imprisonment charge that it wished to present. So that -- The Court acceded to -- to the State's request, and we all have to acknowledge that the prosecution, in general, gets to decide, uh, what charges to go forward to on those that have been bound over and on which the defendant has been arraigned, and I said at the time that if the State fell short, I thought there might be grounds for a mistrial.
Why? Because the false imprisonment count here is the last vestige of the unsupported, inaccurate, uncorroborated claims of Brendan Dassey that were broadcast by agents of the State to everyone who had a TV turned on in this part of the state that threatened the right to a fair trial, that threatened the right to have a jury drawn from the venue in which this cr -- crime was charged, and that curled the hair of anyone who listened to the description of a naked woman manacled to a bed, sexually assaulted, stabbed, throat cut, strangled when slashing of her throat didn't kill her, and then only later, a corpse, shot 11 times. That was the story. That was the horror story that was present. And the false imprisonment charge, as I say, is the last vestige of that horror story.
And the State went forward with it. And what we have here, now that the State has presented its entire case in chief, what we have here is nothing to support a belief that Brendan Dassey had anything to do with Steven Avery on October 31, 2005. Nothing to support the notion that he had anything to do with anything criminal in which Mr. Avery may have been engaged.
Again, giving the State the benefit of all reasonable inferences and viewing the light -- the evidence in the light most favorable to the State, anything Mr. Avery may have done on October 31, there is nothing that has been presented to show that Brendan Dassey had a culpable connection to any of it. There is nothing to suggest that Ms. Halbach ever was in Mr. Avery's bedroom, let alone restrained there, let alone assaulted there, let alone stabbed there, or with her throat slashed.
Indeed, the physical evidence beyond serious dispute, beyond peradventure that physical evidence has destroyed or revealed the inaccuracy of that horror story. It was a fable. An ugly, horrific fable, but a fable, all the same, belied by the physical evidence and by the testimony in the State's own case in chief.
And we now learn that the cause of death, in the State's view, isn't stabbing, it isn't throat-slashing, it isn't strangling. What is it? It's two gunshot wounds to the head. The gunshot wounds that, according to the Complaint and the news conferences, were supposed to have been fired after she was dead, now become the cause of death. Not 11, but 2.
Do we know at all? Do we have any basis to draw reasoned inference from the State's case in chief about where those gunshots were fired? From how far away? In what position Ms. Halbach was at the time? Whether she was alive at the time? Who fired the gunshots? On that, we have evidence that the gun that fired at least one of the bullets was found in Steven Avery's bedroom, and that shell casings found in the garage were identified, also, as having been fired by that gun.
So, again, viewing the light in -- or the evidence in the light most favorable to the State, one might say that a reasonable jury, perhaps, could find that Mr. Avery was the one who fired the bullet that later we are told has Teresa Halbach's DNA on it. I don't think that's a reasonable interpretation of the evidence as a whole, but let's spot the State that one. We still don't know where, when, from how far away, or in what condition Ms. Halbach was at the time.
And to the extent that the State's evidence has put her in Mr. Avery's house at all, the rich irony, of course, is that that rests -- that inference rests on one offhand statement of Mr. Avery to which Detective Remiker testified, a statement of the defendant that was undisclosed with which we were caught at surprise at this trial. And beyond that, what we have here, viewed in the light most favorable to the State, is Bobby Dassey's testimony that he saw Ms. Halbach walking toward Steven Avery's trailer. Not that she went in, not that Mr. Avery had any interaction with her, but saw her walking toward his trailer after taking photographs of the van. That's it.
No reasonable jury here, viewing the light -- the evidence in any light, could infer, reasonably, from here that Ms. Halbach was restrained or confined by Mr. Avery in his house in any way. Of course, walking into somebody's house isn't an unlawful confinement or restraint. We do that all the time. People visit other people's homes. Strangers are admitted. That's, in itself, no proof of an intentional and unlawful confinement or restraining. And, at best, that's what the State has as to the home.
The State has no evidence at all putting Teresa Halbach, herself, in the garage. Her blood isn't found there. What is found there is a bullet, four months later, on which her DNA is identified. Not her blood, but her DNA.
How the bullet comes to be there we don't know, but it's lying out on the floor under an air compressor four months after the garage is searched repeatedly, and that's the only connection, immediate though it is, between Ms. Halbach and the garage as a possible place of confinement.
Moreover, if she ever was in the garage, we don't know. We have no evidence on which we can do anything more than speculate that she was alive when she was in the garage. And while you certainly can mutilate a corpse, or treat a corpse unlawfully, you can't confine or restrain a corpse. And this Court acknowledged that in its preliminary instructions to the jury on the essential elements of false imprisonment under Section 940.30 of the Wisconsin Statutes. So the garage isn't a place in which a reasonable jury can find Ms. Halbach was restrained or confined under any view of the elements.
And that leaves the Toyota by my lights. The Toyota has, uh, bloodstains in the rear cargo area that a reasonable jury certainly could conclude were made by bloodied hair up against the passenger side wheel well of the rear cargo area. A reasonable jury certainly could conclude that this was Teresa Halbach's blood. There was ample testimony from Sherry Culhane to warrant that conclusion.
But if the State's theory is, as it now apparently is, that the cause of death was being shot in the head twice, two gunshot wounds, the State presented that evidence from Leslie Eisenberg and from Dr. Jeffrey Jentzen, then Teresa Halbach was dead when her hair was bloodied by a hole in the occipital bone and a hole in the parietal bone. We have nothing else here. Nothing on which a reasonable inference would arise, from which an infer -- a reasonable inference would arise that there was any other reason for bloodied hair but two gunshot wounds to the head.
Now, if that happened, if that was the cause of death, highly speculative, but let's set that aside for the sake of argument, if that was the cause of death, then, again, it's a body in the back of the Toyota, not another person. Not a living human being. Not only is that the -- a reasonable inference, it's the only reasonable inference if one credits the State's cause of death. The State has produced no other evidence that would suggest another cause of death.
So what we're left with in the end is nothing on which a reasonable jury, acting on evidence and reasonable inferences from evidence rather than on horror stories or fables or imagination or guesses, could come to a conclu -- conclusion here that the State in its case in chief has proven the essential elements of false imprisonment beyond a reasonable doubt. Beyond -- Nothing that would allow a reasonable jury to find those essential elements proven beyond a reasonable doubt.
So I'm asking the Court to, in a sense, ratify what the State has already done, which is the abandonment of this charge and the abandonment of a theory that Brendan Dassey had anything to do with this or that the story that Brendan Dassey told under police questioning has any veracity, corroboration, or foothold in the evidence presented at this trial.
THE COURT: Before I hear from the State, uh, I'm going to check something in my office. We're going to take a five-minute break and we'll come back.
(Recess had at 10:03 a.m.)
(Reconvened at 10:11 a.m.; jurors not present.)
THE COURT: Who will be arguing this motion for the State? Mr. Kratz?
MR. KRATZ: Yes. Thank you, Judge. The posture -- procedural posture of this particular argument is hardly unique to the case of, uh, State vs. Avery. Any serious, um, case, or any, uh, defense attorney, uh, worth, uh, his weight at all, brings motions to dismiss at the close of the, uh -- the State's case, and, uh, although, uh, not at all meaning to, uh, demean or to discredit the defense attorney's, um, bringing this particular motion, uh, it is, uh, procedurally very common.
That having been said, Your Honor, the standard that the Court must apply, Mr. Strang has, uh, accurately indicated, uh, that is, in considering the light -- or excuse me, considering the evidence in the light most favorable to the State, the evidence, uh, if, believed, uh, and, uh, if rationally considered by the jury, would be sufficient to prove the defendant's guilt beyond a reasonable doubt.
Importantly, in this case, uh, is the jury instructions that not only talk about direct evidence, but also include that of circumstantial evidence, because this jury, and, uh, at least by, um, application to this motion, this Court can and should not only consider direct evidence that has been, uh, presented, but, also, reasonable inferences. That is, any inference that -- and in -- in this posture, that this Court could, uh, reasonably infer, uh, based upon a fair consideration of all the evidence in the case.
Mr., uh, Strang, although arguing for dismissal of the, uh, first, uh, three counts, makes no specific, uh, arguments, uh, as to those bases, uh, most of his, uh, argument as to the Count 4, which is, in fact, included in the second Amended Information, uh, which is a charge of false imprisonment, and, therefore, my, uh, response to Mr. Strang will, uh, in kind, uh, most, uh, predominantly, uh, relate to that count.
False imprisonment, as this Court knows, uh, is a count which does not usually, uh, stand alone. False imprisonment is a crime that is usually charged with another more serious crime. In this case, a homicide. Sometimes, uh, a sexual assault, sometimes a carjacking, or robbery, or, uh, something like that. But it is, uh, almost by definition, a crime of motive. That is, requires juries to consider why. Why is somebody confined? Why is somebody restrained? Why is somebody, uh, held or compelled, uh, to remain in a place against their will? Again, usually in conjunction with another crime.
And although it would be a luxury, uh, to have, uh, whatever evidence the State might, uh, believe, uh, it has available to it, uh, and, most notably, and, uh, I guess, most pointedly to Mr. Strang, uh, noting Mr. Dassey's, uh, involvement, Mr. Dassey's statement, uh, and although academically we can talk about, well, if the State had Mr. Dassey available and had his testimony available in this case, uh, what might this jury consider?
The fact of the matter is, Judge, we don't. We don't have Mr. Dassey available. And so you, the Court, and the jury, eventually, will have to consider the evidence that is before it, not the evidence that might be, or the evidence that's been excluded, or the evidence that has been ruled unavailable to the State, but that which the State does have. And, again, we're entitled at this stage of the proceedings, uh, to have this Court consider not only the evidence, but the inferences that may draw therefrom.
I mention, Judge, that the false imprisonment, uh, count, itself, is a charge of motive. Uh, that is, the "why". And, as Mr., uh, Strang, digressed, uh, at least briefly, to, uh, some procedural parts of this case, uh, I feel it necessary to do the same. The State attempted in this case to show this jury, uh, the why. That is, why would this kind of crime -- why would the very crime, the false imprisonment, have taken place?
Uh, on nine separate motions brought by this State, uh, we were unsuccessful in something called "other acts motion". That is, uh, attempting to show this jury, uh, the very history of this man, Mr. Avery, uh, of his, uh, not only violent history, uh, but also his, uh, very history of assuring compliance, uh, with, uh, other young women at gunpoint. Uh, that, uh, if, uh, allowed in this case, uh, may very well have ended this discussion right there.
But, again, we don't have those kinds of, uh, evidence available, at least, unfortunately, in the State's perspective, uh, to present or to argue in this case. Importantly, or maybe just as importantly, uh, during this trial, uh, we attempted to provide and have the jury consider evidence of Ms. Halbach, herself, and her state of mind. That is, whether Ms. Halbach would voluntarily go into Mr. Avery's trailer. The Court may remember the testimony of Ms. Pliszka, uh, when the State at least elicited, or attempted to elicit, testimony about a prior contact between Ms. Halbach and Mr., uh, Avery, where Ms. Halbach felt creepy, uh, about Mr., um, uh, Avery, and that, uh, she very much would not have voluntarily gone into Mr. Avery's trailer.
And although not available, uh, to the State in -- at least for, uh, this part of the trial, uh, I make -- uh, I may renew, as this trial goes forward, uh, our request to introduce, uh, just that evidence. But we are, as I mentioned, entitled to inferences. And the inferences still available, that is, that Ms. Halbach would not voluntarily go into Mr., uh, Avery's trailer, would not, certainly, uh, voluntarily, without compulsion, or without being compelled, uh, remain there where harm could come to her.
So back to my original premise, Judge, that this is a crime of motive, that is, a crime, uh, typ -- typically accompanied by a more serious crime or series of crimes, I'm asking this Court at this stage of the proceedings to consider all of the evidence and to consider the in -- the inferences that may draw therefrom.
The Court can probably, uh, uh, understand that these kinds of crimes are not usually committed with lots of witnesses around. In this case there's no victim to tell the story, uh, of what happened, and so, necessarily, the jury, and in this case the Court, will have to rely upon those inferences.
The State believes, Your Honor, uh, that inferences can be drawn in this case. First of all, the State can and is asking this Court to draw the inference that the defendant's motive, that is, his request to have Ms. Halbach come to his property, was not an innocent, uh, request, was not an innocent motive.
We've argued that he's lured Ms. Halbach to his property by using the name, B. Janda. Although Mr. Strang may argue that one inference, uh, may be that that is innocent in nature, uh, the State is entitled to an inference that supports conviction. That is, that it's not a coincidence that Mr. Avery used an alias, used a different name to lure Ms. Halbach.
That becomes important when we talk about the second part of this case. That is, when Ms. Halbach actually gets to the property. We've heard testimony from Bobby Dassey, uh, that he saw Ms., uh, Halbach walk towards the trailer. That he took a shower, and when leaving to go hunting, uh, and coming out to, uh, his truck, he saw nobody in the vicinity of, uh -- did see Ms. Halbach's vehicle.
We're entitled at that point, Judge, to the inference that Ms. Halbach is inside of Mr. Avery's trailer. Uh, although Mr., uh, Strang characterizes that as speculation, uh, the State certainly believes that that is a reasonable inference not just that this Court can draw, but that a jury, eventually, uh, can draw.
We have to, for the next inference, Judge, go to the end of the case, uh, in order to, uh, ask the Court to draw the inferences in the middle, and that is, where is Ms. Halbach killed? The State believes, as Ms. Strang -- Mr. Strang has, uh, accurately indicated, that, uh, Ms. Halbach was killed in the garage.
I think it is, um, uh, although an inference, not a reasonable inference, uh, that Ms. Halbach was shot, uh, while she was al -- already in a -- a -- a -- a -- a state of being a corpse when she was deceased, the reasonable inference is that you shoot somebody in the head to cause their death.
And so where this happened, as Mr., uh, Strang I think rhetorically asked, although I will answer that question, the inference is, in the garage, because the bullet, uh, which passed through Ms. Halbach's body, is in the garage. You've heard testimony, Your Honor, as to the weapon that was used, by experts, as to the shell casings that came from that weapon, as to the bullet that came, uh, from that weapon, to the exclusion of all others.
And so while Ms. Halbach was killed in the garage, and while she -- the inference was earlier in Mr. Avery's trailer, the inference that we're asking this Court, and eventually the jury, to draw, is that, uh, she is transported from the trailer to the garage. We're asking, Judge, and I think reasonably, uh, asking, that the inference is also that she wouldn't do that voluntarily. Again, not just because of the statements of friends and family, Mr. Pearce, and others, uh, as to warnings as to not going into individuals' homes and the like, uh, but just the surrounding circumstances, and circumstantial evidence, and common sense, uh, should dictate, uh, that she would not, uh, go from a place, that is, from a trailer, uh, to a place, uh, where she was killed in the garage without being compelled to do so.
Again, Judge, there may be other reasonable inferences. There may be other inferences that can be drawn. But at this stage of the proceedings we are entitled to the Court's inference that supports a conviction. We're entitled to those reasonable inferences, uh, that, if believed by a jury, would lead to a conviction. Permis -- permissive inferences, uh, are not, again, just unique, uh, to this part of the proceedings, um, but are, uh, oftentimes applied by juries when I mentioned the consideration of circumstantial evidence.
There aren't very many cases as, uh, we discussed, at least, uh, parenthetically, uh, yesterday directly on this topic, uh, although there are some cases on false imprisonment, itself, and many of those cases are reflected or adopted in the jury instruction, itself, Instruction 1275, uh, when, uh, false imprisonment, or the confinement, or restraint can be proved by acts, by words, or by a combination, uh, of the two, uh, and so the combination here of acts, uh, or words, the acts, of course, uh, being the, uh, pointing, uh, of a firearm at another, uh, the words, uh, whatever there may -- they may have been, all do, uh, I believe, uh, support the reasonable inference that Ms. Halbach's, uh, freedom of movement was compelled. That is, that she did not go voluntarily to the garage, the ultimate place where she was killed.
Once again, Judge, uh, we are not here, we are not before this Court, uh, arguing whether, uh, the case, uh, is proved, uh, beyond a reasonable doubt. Simply, if a jury, or if this Court at this time, when considering the facts in a light most reasonable and most favorable to the State, would, um, uh, support a conviction, and it does.
Uh, we have, uh, other evidence. I'm not going to belabor the point as to the where and the when, uh, statements, uh, by, uh, Mr. Fabian, uh, statements by others, uh, who may place a timeline as to where Ms. Halbach was or what, uh, she may have been doing.
Uh, the bottom line, uh, does, however, suggest, I think, quite reasonably, uh, that her, that is, Ms. Halbach's, uh, freedom of movement was, in fact, uh, restrained, was -- she was, in fact, confined, uh, that she was deprived of that freedom of movement that, uh, individuals do enjoy, that physical force, uh, although not required, uh, I think it certainly was, uh, used in this case, or at least threatened, uh, by use of a -- a firearm, and the State is entitled to those inferences.
Again, not what evidence that the State wishes, uh, we could, uh, have presented in this case, but the inferences from the evidence that we have educed, uh, we do believe supports a conclusion that the Count 4, the 4th count of the Information, that is reasonably included in this case, is supported by the evidence.
We'll ask the Court at this time to deny the, uh, defense's motion, uh, for an acquittal or for dismissal, uh, at this stage of the proceedings, that is, after the State has rested its case in chief. That's all I have, Judge. Thank you.
THE COURT: Mr. Strang, anything in reply?
MR. STRANG: Yes, Your Honor. Uh, although it came only at the end, I -- I appreciate Counsel's concession that the proper standard here for the Court is, uh, assessing the sufficiency of the evidence, not assessing the sufficiency of the proof that the State wishes, or would like to have offered but did not.
So confining my reply to the evidence, I'll start with this. Um, seems a small point, but, perhaps, it's really not. The evidence is undisputed that Teresa Halbach was 25 years old, um, on October 31, 2005. The State's first argued inference, um, in support of false imprisonment is that she was lured to the Avery property at all, um, by a -- by a lie, by a -- a sham, or a pretense that, uh, Mr. Avery undertook.
I -- I raised her age, because if it were true that he lured her there, or that a reasonable jury could find so, that wouldn't make out false imprisonment as a matter of law. Luring someone, an adult, a competent adult, someplace, is not intentionally confining or restraining them in that place.
Now, a child can be lured into a secluded or enclosed place, and if the purpose of luring the child there is one of several that the child enticement statute, 948.07, sets out, then that's a crime. But an -- but an adult, uh, isn't falsely imprisoned by being lured to go someplace under, uh, false pretenses, and there's -- there's no decisional support or case law that would support the luring theory of false imprisonment here of which I'm aware.
In any event, uh, I also note in that respect that the evidence is undisputed that Ms. Halbach had been to this very address several times before for the purpose of taking pictures. The evidence is undisputed, offered by the State, that there was a maroon van. Um, if -- if -- if we -- we saw one picture we must have seen ten, of the maroon van from -- from almost every possible angle. I would -- I was going to offer to buy the van myself in order not to see one more picture of it. So that's undisputed.
It is undisputed in the evidence that Barb Janda, B. Janda, was offering the van for sale. That ev -- that evidence came from, uh, Bobby and Blaine Dassey, at least, and it may have been mentioned by Scott Tadych, although I don't say that to the Court because I'm not certain.
So, you -- you -- you know, even if hypothetically luring an -- a competent adult in some circumstances could amount to false imprisonment, it doesn't here on the evidence or on any reasonable inference from the evidence.
The State, next, hones in closer and says, well -- offers an argument that perhaps the place the jury can infer Ms. Halbach was falsely imprisoned is Mr. Avery's trailer.
Now, Counsel, uh, accurately describes, uh, how one reasonably could view Bobby's Dassey's testimony, uh, insofar as Counsel went. Uh, Bobby Dassey did testify that he saw Ms. Halbach walking toward the trailer as he looked out the kitchen window before taking a shower and saw her car there. Bobby Dassey didn't say, and no one else suggested, that Steven Avery was outside, or was marching Ms. Halbach, involuntarily, toward the trailer, or interacting with her in any way, or even visible. Um, Bobby Dassey does not see Steven Avery at the time that he sees Ms. Halbach walking toward the trailer.
So, again, we've got nothing on which to base an inference that she's walking toward that trailer for anything other than a business purpose, uh, that she's undertaking. Um, nothing to suggest she's being compelled to do that in -- you know, in the sense that the false imprisonment statute speaks of a confinement or restraint, uh, absent someone's consent.
It is also true that Bobby Dassey does not see Ms. Halbach or Mr. Avery immediately after his shower, but does see her car.
Now, what -- what the State omits was Bobby Dassey's testimony, not put in dispute, that his shower was three or four minutes. It's three or four minutes, roughly, between his two observations out the kitchen window. If Ms. Halbach, in fact, is in Mr. Avery's trailer at all, and let's -- let's assume that's a reasonable inference from Bobby Dassey's testimony if its credited, if she's in his trailer at all, we don't know what she's doing there, what's being said, whether any effort is being made to keep her there. And three or four minutes, by itself, is not a time frame that would raise an inference that somebody is being held against her will, um, raises no inference of that at all, especially in light of the undisputed business purpose, um, that Ms. Halbach had for coming to the property in the first place.
So there -- there -- Again, there's really nothing. It -- it collapses, as this would be wild speculation to assume that she's being confined or restrained behind the door, if she is, in fact, in the trailer, that she's being confined or restrained against her will. We've got nothing on that.
Her blood isn't there. There isn't any sign of a struggle. Uh, nothing. Um, none -- none of her blood, hair, you know, anything. Saliva. Nothing's found, uh, evidencing her physical presence in the trailer or, perhaps more importantly, a struggle or some effort to restrain her in any way.
So the State then moves next saying, well, maybe there's a reasonable inference that she's transported between the trailer and the garage involuntarily. That's nothing but a guess, if one looks back over the evidence the State has presented.
No one sees Mr. Avery and Ms. Halbach going from house to garage either alone or together. Certainly, no one sees them walking from house to garage, or otherwise moving from house to garage, in a way that would suggest that Ms. Halbach's doing this against her will. Nothing. Just nothing on that.
In fact, the notion that she gets to the garage at all, under any circumstances, rests, again, on -- on another series of inferences. Um, and tho -- those inferences are that she must have been killed in the garage because the bullet bearing her DNA later is found in the garage.
There, again, um, if she's killed in the garage, that's maybe a first degree intentional homicide or a homicide of some sort. We don't -- we don't have any idea if this is a contact wound, or if it's -- the gun is fired from a hundred feet away, or anything at all. You know, what her -- her condition is in the garage or what her interaction with a shooter is, even if we assume she's shot, and assume that she's shot in the garage, um, and we certainly have nothing other than the bullet to tell us anything about confinement or restraint in the garage.
His blood is found in the garage, but hers isn't. So, again, on the evidence we have, if the State hypothesizes that some effort was made to clean up the garage, which, itself, is speculative, there's no evidence of it, but if that's the hypothesis, then somehow, selectively, the person cleaning the garage was able to remove Ms. Halbach's blood but not able to remove Mr. Avery's blood, or distinguish between the two sources of blood and deliberately left Mr. Avery's blood while removing all trace of Ms. Halbach's blood.
You know, it's, um -- it -- it -- it collapses just by -- by explaining what the undisputed evidence here is, and there's nothing else suggesting confinement or restraint as opposed to a gunshot wound in the garage.
Now, if, implicitly, this Court is being asked to find that every homicide also involves false imprisonment, that proposition can't stand. There -- there isn't any legal support for it. And if, indeed, every homicide did involve un -- false imprisonment, then false imprisonment would be a lesser included offense, and one couldn't be convicted of both of them anyway if, necessarily, a false imprisonment happened -- false imprisonment happens with every first degree intentional homicide. Um, I don't think the State really means to say that the mere fact of a homicide establishes a false imprisonment. If the State does, it's wrong.
THE COURT: Anything else, Mr. Kratz?
MR. KRATZ: Nothing, Judge. Thank you.
THE COURT: All right. Let's take our break this time. Uh, resume -- Hopefully, Mr. Gahn will be here within 15 minutes, and, um, then the Court will hear argument on the, um, fair testing motion.
(Recess had at 10:39 a.m.)
(Reconvened at 10:58 a.m.; jurors not present.)