State motions from 10 May

[Cylinder]

The motion "IN LIMINE REGARDING CALLING OF WITNESSES" struck me as meaning DeeDee won't be called at trial.  Could they have had anybody else in mind?

Serino, since they hightlight that specific instance from their cite.

[nomatter_nevermind]

The motion "IN LIMINE REGARDING CALLING OF WITNESSES" struck me as meaning DeeDee won't be called at trial.  Could they have had anybody else in mind?

I think it is directed mainly at Serino and other LE witnesses, and some minor and problematic witnesses like Cutcher or W-2.

I think the prosecution will call W-8.

[RickyJim]

Both sides have listed many more witnesses than are expected to actually testify.  I think that only not calling a witness that was mentioned in the Affidavit of Probable Cause would induce the prosecution to try to stop the defense from mentioning it.

[cboldt]

"evidence, testimony, questioning or other reference to self-serving hearsay statements by defendant to witnesses..."

I took that as another motion against Serino's possible testimony. I'm probably wrong though.

I took it as precluding questions to witnesses other than Zimmerman, where the question elicited an answer that included hearsay on Zimmerman's part.  Zimmerman saying he was calling for help isn't hearsay on Zimmerman's part.  He was there.  Zimmerman saying Martin attacked him isn't hearsay on Zimmerman's part either.  A witness can answer as to what Zimmerman said, and that isn't hearsay on the witnesses part.  The witness heard Zimmerman say something.  The hearsay rule prevents the witness from testifying that Zimmerman was calling for help, but it doesn't prevent the witness from testifying as to what Zimmerman said.

I can't make sense of this motion, and I think Nelson will rule that she'll handle objections that touch on this angle, on a question by question basis during the trial.

[MJW]

I don't see how the motion to exclude hearsay statements from GZ is even a proper motion. It merely asserts some unspecified statements aren't admissible under any hearsay exception. I would think a motion to rule in advance that statements won't be admitted should have to name the statements, and argue why each one is inadmissible under heresy exceptions and under the doctrine of completeness should the witness be called by the state to testify concerning other statements by GZ.

[MJW]

I expected the defense to file a similar slew of motions in limine. I think they should have. They need to oppose the introduction of anything to do with the bond hearing. I think BDLR intends to introduce it on the theory that it's consciousness-of-guilt evidence of intended flight, based on the outlandish conclusions of Judge Lester in the bond order.

[cboldt]

I expected the defense to file a similar slew of motions in limine. I think they should have. They need to oppose the introduction of anything to do with the bond hearing. I think BDLR intends to introduce it on the theory that it's consciousness-of-guilt evidence of intended flight, based on the outlandish conclusions of Judge Lester in the bond order.

They have plenty of time to file those motions.  The deadline for motions in limine is May 31 or something like that.

[MJW]

They have plenty of time to file those motions.  The deadline for motions in limine is May 31 or something like that.

You're right. I'd forgotten about that.

[nomatter_nevermind]

Jose Baez, in his book on the Casey Anthony trial, mentioned that in Florida a defense attorney can't comment on the prosecution not calling a witness, unless the defense does call the witness.

[nomatter_nevermind]

In the motion regarding toxicology, it seems the prosecution didn't find any case law on point. In the cases they cite, the person who may have done drugs was a witness.

[MJW]

In the motion regarding toxicology, it seems the prosecution didn't find any case law on point. In the cases they cite, the person who may have done drugs was a witness.

Yes, and as tara at CTH points out, in Diaz v. State, 747 So. 2d 1021 (Fla. 3d DCA 1999) the issue was whether the ME could be cross examined about the blood-alcohol levels of the victim, not whether the ME could testify as a defense witness about the levels. In fact, the ME was called by the defense, and did testify as to the results. BDLR does say that the "evidence is inadmissible as cross-examination," but goes on to inaccurately conclude: "Accordingly, the items listed above are irrelevant to the any charge or defense." Even the statement regarding cross examination was, as the court noted, only true because the ME didn't testify about the toxicology results on prosecution direct.

[nomatter_nevermind]

Yes, and as tara at CTH points out, in Diaz v. State, 747 So. 2d 1021 (Fla. 3d DCA 1999) the issue was whether the ME could be cross examined about the blood-alcohol levels of the victim, not whether the ME could testify as a defense witness about the levels. In fact, the ME was called by the defense, and did testify as to the results.

At least Diaz v. State was about the toxicology of the victim. (I missed that when I made my previous post. Sorry about that.)

The decision also includes a passing comment on a question not before the court.

[T]he toxicological results, without the defendant's testimony [that he knew that the victim had a reputation for violence when intoxicated], would have been irrelevant.

It is undisputed that Zimmerman didn't know who Martin was, so there is no question of Zimmerman knowing anything of Martin by reputation.

Unless the defense has some alternate theory of relevance, I think this one goes to the prosecution.

This defense may concede it. It is only the prosecution's speculation that the defense wants to introduce the toxicology report.

[MJW]

Unless the defense has some alternate theory of relevance, I think this one goes to the prosecution.

This defense may concede it. It is only the prosecution's speculation that the defense wants to introduce the toxicology report.

I'm pretty sure the defense doesn't intend to suggest TM attacked GZ because he was crazed on demon weed. But they probably will use it limit the prosecution's "false profiling" argument. I don't think BDLR should be able to use GZ's comment "he looks like he's on drugs or something" as part of that argument without the defense having a right to present the toxicology results. A similar (though considerably more blatant) question was considered in Arias v. State, 20 So. 3d 980 (Fla. 3d DCA 2009).

[MJW]

A bit off topic, but I was looking at related cases and noticed something interesting in Salas v. State, 972 So. 2d 941 (Fla. 5th DCA 2007). The court says of Diaz:

The court noted that if the defendant sought "to elicit testimony from an adverse witness which goes beyond the scope encompassed by the testimony of the witness on direct examination, other than matters going to credibility, he must make the witness his own." 747 So.2d at 1023, quoting from Steinhorst, 412 So.2d at 337. The defendant in Diaz, as here, failed to do so.

The last statement is incorrect. The defense in Diaz did call the ME to testify about the victim's blood-alcohol levels; they were just upset that by doing so, under the rules at the time, they gave up the right to have the final closing argument.

[nomatter_nevermind]

But they probably will use it limit the prosecution's "false profiling" argument.

How is that argument relevant?