5.Exhibit Withdrawal and Jury-Room Materials
53 linesMR. STRANG: The remaining task to tend to is that we had agreed, I think, that all photographs would go to the jury without a request. But since then, I don't remember if I did this on the record or not, but had moved to exclude some of the exhibits already admitted, and photographs of those.
I have numbers of them in my brief case, but they are the handcuffs, leg irons, electrical cords, and as I say, related pictures. So the Court would need to rule on those, because if to be excluded, of course, those photographs ought not go.
THE COURT: I recall being informed that I could anticipate the receipt of such a motion; I don't know that I have received it yet. But I was notified of it and my recollection is that the parties were going to discuss the potentially disputed items of evidence in order to determine whether there would be a stipulation proposed.
MR. STRANG: I don't know that we had much further conversation, so the question may be best put to the State.
MR. KRATZ: If I could just have a moment, Judge, I will be happy to identify those for the Court. Exhibit 173, Exhibit 174.
MR. STRANG: 228 and 229.
MR. KRATZ: Thank you, counsel. 228, and 229, although those are items themselves.
MR. STRANG: Yes, some of these are photographs and some are the items themselves. And I don't have which is which.
MR. KRATZ: All right. 228 -- 229 has already been withdrawn, I think, as an exhibit. 228 is the other photo that is at issue in the case. And those three photos, then, that have been identified, we have no objection they be removed from the binder of photos, and that the balance of the photos be tendered to the jury at this time.
THE COURT: All right. Can you give me the numbers of the photos again.
MR. STRANG: 173, 174, 228, and Mr. Kratz says that 229 already was withdrawn.
MR. KRATZ: Right. Those are the three exhibits.
MR. STRANG: Then the items themselves are Exhibits 203, 204, and 249. Those are the actual items.
MR. KRATZ: They wouldn't be going back anyway, Judge.
THE COURT: Pardon me?
MR. KRATZ: The items wouldn't be going back anyway.
THE COURT: I understand the motion to be going beyond that.
MR. STRANG: Right. But they -- I'm asking that they be excluded, that is, that the Court reconsider the ruling admitting them, exclude those things as exhibits. I agree, of course, with Mr. Kratz, that these things wouldn't be going to the jury anyway, absent a request, but I'm looking to have them excluded as evidence altogether.
THE COURT: My only hesitation there is, given the stage of the trial at which this is being raised. I take it you are not asking for some type of further instruction to the jury that they have been withdrawn.
MR. STRANG: I'm not, no. I mean, we would have addressed that before closing arguments.
THE COURT: Does the State have any objection?
MR. KRATZ: The only issue, Judge, is if they would ask to see those items, I think that could be addressed at that time. I don't believe that the items themselves, that is the physical items themselves, need to be addressed at this time. Certainly an argument could be made as to the relevance, they are part of the record. And up and until the time that those may be asked for, I believe that request by counsel is premature.
THE COURT: Let me ask this. Is the defense, with the understanding that both parties agree that these six exhibits that have been identified, that is, three photos and three physical items, with the understanding that they will not be sent to the jury, and I believe there's a stipulation that the three photos can simply be withdrawn, is the defense willing to postpone further consideration of its request to withdraw the other exhibits to such time as the jury requests to see them?
MR. STRANG: Sure, because there is -- it's true, there is no practical effect other than cleaning up the record, and that can be done any time.
THE COURT: So, based on the stipulation of the parties then, items -- Exhibits 173, 174 and 228 that are photos, are withdrawn, and items 203, 204, and 249, will not be sent to the jury room if requested.
MR. STRANG: That's right. Now, I have to say, I had -- our exhibit shows 229.
THE COURT: I have been told -- my understanding was that's already been withdrawn.
MR. STRANG: Let's just confirm that with the clerk, I probably am wrong, but 229, Janet.
COURT CLERK: I didn't show that as withdrawn.
MR. KRATZ: It should be, I have no problem with that.
THE COURT: All right. 229, then, is also withdrawn.
MR. STRANG: Very well.
MR. KRATZ: Thank you.
THE COURT: Very well, we're in recess.
MR. BUTING: Judge, one other matter.
THE COURT: Yes.
MR. BUTING: I don't know what other exhibits you intend to send back to the jury, other than the photographs, but certainly we would object to the expert's reports going back.
THE COURT: Let me clarify my understanding further. If I understand what the parties are telling me, and I want to make sure I'm not reading too much in, I'm glad, Mr. Buting, that you brought this up. If the jury requests permission to see any of the other photos, are the parties saying I can send them back, or the parties wish to be heard before they are sent back?
MR. STRANG: Photos can be sent without jury request.
MR. KRATZ: Right now.
MR. STRANG: That's what we agreed.
THE COURT: You are asking the Court to send them back.
MR. KRATZ: Right now, yes.
THE COURT: Okay.
MR. KRATZ: But any other exhibits, if they ask to be seen, we would all like to be heard on that.
MR. STRANG: And maybe we didn't have an agreement on this, I expressed the view to counsel that we also could send CV's for all experts back, without request. If they are not in agreement --
MR. KRATZ: No, that--
THE COURT: I'm a little concerned if we're sending all photos, that's one thing. I hate to send back nothing but all CV's and nothing else, for fear that it might draw undue attention to them. So I'm going to wait, and if the jury requests to see anything other than the remaining photos, I will notify the parties, just as I would if I receive a question from the jury, and the parties will have a chance to be heard before they go back.
MR. KRATZ: That sounds good.
THE COURT: Fair enough?
MR. KRATZ: Thank you, Judge.
MR. STRANG: Yes.
THE COURT: All right. We're adjourned for this time.
(Court in recess, jury deliberating.)