4.Exhibit Admissions and End-of-Day Counsel Matters
107 linesMR. KRATZ: Judge, I am going to move for the admissions of Exhibit 163 through 205, with the exceptions of Exhibit 164, 165, 187, and I think that's it. Those were the three that this officer was unable to identify. The rest I believe he has and would move their admission at this time.
THE COURT: Any objection to the admission of those exhibits?
MR. BUTING: No objection.
THE COURT: All right. The exhibits listed, then, by Mr. Kratz will be admitted. Mr. Kratz, do you have any further questions of the witness?
MR. KRATZ: No.
THE COURT: Members of the jury, we have got a few things to take up with counsel before leaving today, so I think given that, it's probably a little late to get into cross-examination. So at this time I'm going to excuse you for today. I will remind you not to discuss this case with anyone else at any point during the trial and do not watch any news accounts of the case. You are excused for today. We'll see you tomorrow morning.
(Jury not present.)
THE COURT: You may be seated. Officer Tyson you are excused.
Counsel, I had mentioned earlier this morning that there was at least one exhibit, Exhibit 89, that I believe the parties both felt had not been admitted but the clerk's records show that it had been and based on the information I got from the court reporter, it appears it may have been in advertently marked as admitted in conjunction with a number of other exhibits at the end of the day back on the 14th. First of all, let's address Exhibit 89; do I understand that -- am I correct that both parties feel that this exhibit was introduced but not admitted?
MR. STRANG: Is that pages 515 and 516 of the --
THE COURT: Correct.
MR. STRANG: -- Calumet county Sheriff's --
THE COURT: Yes.
MR. STRANG: -- Department report? Yes, that was intended only as a Court's exhibit, not -- not for evidentiary consideration of the jury.
THE COURT: Mr. Kratz.
MR. KRATZ: It would certainly never be considered by the jury, Judge, and was meant, as I understood, to complete the record.
THE COURT: All right. The Court will treat it as such and direct that the record shows that it has not been admitted into evidence.
Counsel, are there any other exhibits that either party believes fall into this category, that is, that they have been shown as being admitted but parties -- neither party requested there admission.
MR. KRATZ: I have one that's just -- or two that are just the opposite, Judge. If I may, I'm showing the Court now Exhibit 161. There were two photographs that Agent Fassbender identified. One is Exhibit 161 and the next is Exhibit 162, that I asked the Clerk to please mark, and for whatever reason that didn't occur.
I assured the Court that I would have them marked and put into evidence. I had moved them at the time, but these are the two photographs that go along with Mr. Buting's submissions. They have now been marked and I now show them once again to remind the Court and counsel, Exhibits 161, 162. I will tender them and offer them at this time.
THE COURT: Mr. Strang.
MR. STRANG: These we think were the two photographs used by Mr. Kratz on his redirect examination of Special Agent Fassbender. I believe we recreated that as best we can. They are out of order. I don't know how they were described, if at all, by exhibit number on redirect examination. But we just -- when we talked about this, Nos. 161 and 162 were the next two available exhibit numbers, so we agreed to give them those numbers. And as we recall, they relate back to the redirect examination of Mr. Fassbender.
MR. KRATZ: That's correct, Judge.
THE COURT: All right. And are these a couple of -- they were slides for which photos weren't readily available at the time?
MR. KRATZ: That's exactly correct, Judge.
THE COURT: I believe I recall those. All right. Any objection to their admission today?
MR. STRANG: No.
THE COURT: Very well. 161 and 162 will be deemed admitted. Are there any other items that need clarification?
MR. STRANG: Well, maybe. The only two I came up with and I don't know if they are received or not received, but Exhibit No. 70, I think, was tendered to a witness. It's a photo of crushed cars, but as I recall the witness must not have been able to identify it, or there was a foundation objection. I don't think that one was, or has been, admitted yet.
MR. KRATZ: I think that's No. 70.
COURT CLERK: We have that one as denied.
MR. KRATZ: That one, Mr. -- Bobby Dassey could not identify that. We're going to put that in through another officer later on in the trial, Judge.
THE COURT: All right. So as of this point it's been marked and neither party is asking for its admission at this time?
MR. KRATZ: Not yet.
THE COURT: The State is anticipating asking that it be admitted at a later date.
MR. KRATZ: Yes.
MR. STRANG: Right.
THE COURT: All right.
MR. STRANG: And then, Exhibit 28, which is a written statement of JoEllen Zipperer, I have labeled as used only to refresh recollection, so that -- that would not be -- it would be marked, but not offered and received.
THE COURT: That one is shown as being received.
MR. STRANG: Should have been marked only.
THE COURT: My recollection is that that was marked but not received.
MR. FALLON: I'm not sure that's the case, your Honor.
THE COURT: That was a statement of Mrs. Zipperer?
MR. KRATZ: It was, Judge, if you remember, it had to do with the time that Teresa was out there.
THE COURT: Okay.
MR. KRATZ: The statement had said between 2:00 and 2:30, as she in fact read from that. She said that now refreshes -- that's a better estimate of the time that she was out there. In fact, it is a much more recorded recollection than that, that was just used to refresh recollection. And it undoubtedly is not going to go back to the jury, because I'm sure you are not going to send written statements back, but it was offered and it should be received.
MR. STRANG: I don't think so, whether it's a -- something used to refresh recollection under Section 906.12, or whether it's actually a past recollection recorded, under 908.03 (5) maybe, if memory serves. I think either way it doesn't -- the document doesn't come into evidence. What does is the testimony either refreshed recollection, or the reading of the past recollection recorded.
THE COURT: I think it can only get in if she's unable to refresh her memory from it. But which is not what I understood her testimony to be.
MR. STRANG: Correct. If she was unable to, it could come in as a prior inconsistent statement under 906.13, or conceivably --
THE COURT: Yeah, 908.03 (5) says a record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, but if it refreshed her memory, then it doesn't fall into that one.
MR. STRANG: Right.
MR. KRATZ: I'm never going to ask that it go to the jury, so this is just fine.
MR. STRANG: That's fine, from this standpoint.
MR. KRATZ: That's just fine.
THE COURT: My recollection is that it was marked, but I don't remember it being admitted. And my suspicion is that it may have been marked as admitted under one of these globals, does anybody have any objection to admitting a whole bunch of exhibits.
MR. STRANG: And the real issue is it oughtn't go to the jury. And since the State has conceded that, you know, again, this becomes a bit academic.
MR. KRATZ: Marked, but not received, is just fine.
THE COURT: Yeah, at this point, I don't think it should be received.
MR. KRATZ: That's fine.
THE COURT: Is that it for the exhibits?
COURT CLERK: I have just a couple more. This is a day when I wasn't here, but there was -- there were two photos, 87 and 88, that were marked but nothing was ever said about them.
MR. STRANG: And I don't even have those written down. So I'm wondering if they were ever even identified by a witness.
COURT CLERK: I think they were regarding the Avery property. There was a whole line of photos marked. Janet just has a big arrow drawn through them.
MR. STRANG: Certainly was a series of aerial shots from 79 on.
MR. KRATZ: Eighty-seven and eighty-eight, Judge, were two that Lieutenant Bowe was unable to identify. And like other exhibits in that category, I intend to show them to another witness who's actually in those pictures and I will be putting them in through them. So they are marked but not received.
THE COURT: So they are properly noted as not received at this point.
COURT CLERK: And then there's just one -- I'm sorry -- there's just one other section, 142 through 151, which were from Friday. And I know a lot of those were duplicates from today. There's a sign in sign out log, car crusher check point, photos of the RAV4, the aluminum smelter photo, some more sign in sheets.
THE COURT: Those have been marked but not yet admitted.
COURT CLERK: Right.
THE COURT: And I believe the State still has witnesses to come that will identify those?
MR. KRATZ: I offered 148, 149, 150 and 151 at the time. And if you haven't, Mr. Tyson just looked at those and they are the same.
MR. STRANG: There's no objection to the admission of Exhibits 142 through 151 inclusive.
THE COURT: All right. So the Court will order those admitted then?
MR. KRATZ: Yes, we don't have any objection.
COURT CLERK: I just have one more photo marked as 158, that was ...
MR. KRATZ: That will get in through Mr. Heimerl, actually, who is yet to come.
COURT CLERK: That's it.
THE COURT: Marked but not admitted.
I also want to note for the record that this afternoon there were two side bar conferences. The first one was at about 2:19. Mr. Kratz asked the Court at that time, I think, to take a break in order to permit the marking of a series of exhibits that were introduced through Officer Tyson and I indicated I preferred to proceed with more testimony before the break. That was the extent of what happened then. Counsel, is that your understanding, or recollection of what the side bar was?
MR. KRATZ: Yes.
MR. STRANG: That's mine too.
THE COURT: And then there was a second one after the break this afternoon when counsel approached and raised some issues with the Court concerning some objections Mr. Buting had made before that about photos being discussed without dates attributed to them. And I indicated to the parties that if there was any dispute about the date a photo was taken, that the defense had a right to have that information presented to the jury so that the jury could fully assess the probative value of whatever was in the photo. And I believe that was the extent of that side bar.
MR. KRATZ: That's right, Judge, and -- and I think from that point forward I did that and it was a legitimate point and I hope I covered it from that point.
THE COURT: Mr. Buting, is that your recollection?
MR. BUTING: That is correct, Judge.
THE COURT: Very well. Is there anything else that either party wishes to take up today outside the presence of the jury before we resume tomorrow?
MR. BUTING: Has the Court had any response to the other matter that was ...
THE COURT: Oh, not yet.
MR. STRANG: I'm looking for one exhibit, 189, your Honor.
MR. KRATZ: It's a photo of an envelope. That should be in here.
MR. STRANG: Is the envelope itself something?
MR. KRATZ: That's on the desk, that's two something.
MR. STRANG: That's a different envelope.
MR. FALLON: 189 was the envelope.
MR. KRATZ: It's a photo of an envelope.
MR. STRANG: The photo I'm talking about is Federal Defender Services of Wisconsin.
MR. KRATZ: I understand that. It's a photo of the envelope.
MR. BUTING: So the actual envelope is not here.
MR. KRATZ: We aren't offering --
THE COURT: Just a second. Diane.
COURT REPORTER: Yes.
THE COURT: We're off the record right now. I'm not going to ask you to try to follow that.
(Off record discussion.)
THE COURT: All right. Let's go back on the record. Mr. Strang, you raised a question about Exhibit 189.
MR. STRANG: I did. And I just was curious about the postmark date of that letter, because it's from Federal Defender Services of Wisconsin, which I had run for five years, was one of the three offices that I ran. But I don't know why it would be an issue in any event, but the postmark is about two months after I left that office. So I just can't imagine that there's any -- any issue.
THE COURT: All right. Anything further today?
MR. KRATZ: Just that I think, briefly, we need to meet in chambers. We may have something in our office.
THE COURT: All right. We'll see you in a few minutes.
MR. KRATZ: Thank you.
(Proceedings concluded.)