COMMONWEALTH OF MASSACHUSETTS *

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1 COMMONWELTH OF MSSCHUSETTS Volume: Pages: - Exhibits: None BRISTOL, ss. SUPERIOR COURT DEPRTMENT OF THE TRIL COURT * * * * * * * * * * * * * * * * * COMMONWELTH OF MSSCHUSETTS * * vs. * * RON HERNNDEZ * * * * * * * * * * * * * * * * * * Indictment No. BRCR0-00 EXCERPT OF TRIL TRNSCRIPT BEFORE THE HONORBLE E. SUSN GRSH PPERNCES: For the Commonwealth: William M. McCauley, Patrick O. Bomberg, and Brian Griffin, ssistant District ttorneys, Bristol County District ttorney's Office, Purchase Street, New Bedford, Massachusetts 00 For the Defendant: James L. Sultan, Esq., and Charles W. Rankin, Esq., Rankin & Sultan, Merrimac Street, nd Floor, Boston, Massachusetts 0, and Michael K. Fee, Esq., Latham & Watkins LLP, John Hancock Tower, 0th Floor, 00 Clarendon Street, Boston, Massachusetts 0 Fall River Justice Center Fall River, Massachusetts February, 0 LORI R. SULNIER Official Court Reporter Certified Shorthand Reporter

2 I N D E X PGE: JUROR ISSUE: COLLOUY WITH THE JUROR CLOSED HERING WITNESSES: DIRECT CROSS REDIRECT RECROSS Paul W. Salisbury, Jr. Voir Dire Examination By the Court Voir Dire Examination By Mr. McCauley Voir Dire Examination By Mr. Rankin Dave Littlefield, Jr. Voir Dire Examination By the Court Voir Dire Examination By Mr. Rankin Michael King Voir Dire Examination By the Court Voir Dire Examination By Mr. McCauley Voir Dire Examination By Mr. Rankin PGE: FOR IDENTIFICTION: B Notes

3 0 (t : a.m., without the jury.) THE COURT: Good morning. MR. MCCULEY: Good morning, your Honor. MR. SULTN: Good morning, your Honor. THE COURT: s has previously been made clear to the media, you may not photograph the jurors at all. Not today. Not at any time. I also want to remind you that there cannot be any electronic recording or transmission of any bench or side bar conferences, any conferences between counsel, or any conferences between counsel and client. You also can only record or photograph during a proceeding. Therefore, you cannot record or photograph during any recess. You can begin after the jurors enter the courtroom and they're all standing in the box. So you can photograph or record the court officer doing the cry. You must stop when the jurors rise to leave the courtroom. If you're not operating -- are there two cameras today? Is there a web camera today? THE CLERK: There is not. There's two. THE COURT: If you're not operating one of the two specifically authorized cameras, even if you're a member of the media, you cannot use your cell phone camera or other electronic device to take any photographs or to video anything. Except for attorneys, any person who's not a registered member of the news media is not allowed

4 0 to have a cell phone camera or other electronic device in this courtroom, or indeed in the courthouse. ny attorney who may have a cell phone, tablet, or any other electronic device must have it turned off, not just silenced, and put away. You're not authorized to use a cell phone camera or electronic device to photograph, record, or transmit any aspect of these proceedings or for any other purpose while you're inside this courtroom. I'd like to see counsel at side bar, please. (t side bar.) MR. MCCULEY: Good morning. THE COURT: Good morning. I've been advised that there's an issue with one of the jurors. MR. MCCULEY: Yes, your Honor. Your Honor, on Friday evening D Griffin received a phone call from somebody who he's known for some number of years, and as a result of that, called back. nd that juror works at a place -- he essentially does some auto insurance type issues. nd so as a result of that, Saturday when we had come in, we called that gentleman. He had no contact with the juror since that time, but he essentially said to him, "Explain what you're talking about." He indicated that the juror had made statements to him during the impanelment process. In fact, there was like a sort of -- not Christmas, but a gathering, an

5 0 office gathering recently; and during the -- they were sitting at table. She said to him, "I met somebody that you know." She referred to Mr. Griffin. nd she then said something about some question about the questionnaires. He then as a result of her being impaneled, he filled her spot apparently she holds down a couple of days at this auto -- it's a Hertz rental place. So there's a desk there. So he then took over her spot. When he was there, the office manager made statements to him about her making statements about the case. THE COURT: This is post impanelment? MR. SULTN: This is Juror No. in Seat, your Honor. THE COURT: Right. But it's post impanelment? MR. BOMBERG: During the impanelment process, your Honor. THE COURT: This is still during the impanelment? MR. MCCULEY: This was during the impanelment, but I understand that she had been -- she way saying, "I'm going in for round three," and she made statements about that if there was no -- let me back up. They then go to the office manager, a lieutenant we sent out from the state police to go interview him. He indicates that she made statements last year about wanting

6 0 to get on the jury. Information about knowing they didn't have -- that they never found the gun, and without a gun, whether that would be difficult for her to convict. nd as a result of that, I had told the lieutenant to tell this individual -- we told the other guy don't have any contact with her, no conversation with anybody else, and with the juror, with the other individual. The lieutenant similarly instructed him. So I sent an last night. THE COURT: So there are two people that spoke with her? n office manager -- MR. MCCULEY: Right. THE COURT: -- and the friend of Mr. Griffin? MR. MCCULEY: Correct. Now, she's indicated one -- we went back through our notes. She indicated she didn't have any discussions, hadn't mentioned it. She's now been brought in some number of days, asked whether she's had any communications with anyone. She also indicated she's never talked or made a statement about having knowledge about the gun. Obviously, that presents a problem for us knowing that she's made these statements, that she wasn't truthful at the side bar. MR. SULTN: Well, your Honor, obviously the Court needs to, I think, inquire of the juror and find out what

7 0 the story is. MR. MCCULEY: Your Honor, I can give you the names of the individuals if you'd like to then ask if she knows them or has had conversation with them. THE COURT: Do you have a report from the state police? I mean, is there something so I can actually confront her with certain statements? If she says, "I haven't said anything," I can actually say, "Well, did you say X to Y?" MR. MCCULEY: Your Honor, I have an that Mr. Griffin had sent to me. It's on my computer. MR. GRIFFIN: I have it. MR. BOMBERG: He's got to see it first. (Showing defense counsel.) MR. MCCULEY: This was before. MR. RNKIN: Why don't you give it to the Court and then we can look at it. THE COURT: Do they work for Hertz Rentals, or this is a different person? Is Hertz Rentals a different company? MR. MCCULEY: Yes, he's an independent person, but they have a desk apparently at Hertz. It's more for if there's damage. They do appraisals, insurance appraisals. THE COURT: Do we know Paul's last name? MR. MCCULEY: Yes, your Honor. It's Paul Salisbury.

8 0 He only knew him as Paul, but after we were able to -- THE COURT: ND do you have an interview or notes of an interview with Mr. Salisbury? MR. MCCULEY: I don't. Mr. Bomberg spoke to the lieutenant on Sunday. He called him, and he indicated that he had interviewed him. If I could have one moment, your Honor? THE COURT: Sure. MR. BOMBERG: Mr. Salisbury indicated to state police that he had known the juror for approximately five years. He's known David Littlefield for approximately two years. He indicated that the juror told him that she wanted to be on the jury and that she had had this discussion with him for over a year. THE COURT: For over a year she -- MR. BOMBERG: She had been telling him, Paul Salisbury, that she wanted to be on the jury. nd that at other times she indicated well, it would be a conflict with her job, so maybe she didn't want to be on the jury. Between the time she was called in for the first round -- so in addition to that, between the time she was called in for the first round of the questionnaires and being impaneled on the Monday, she discussed the matter with him. She has said variously that it would be difficult for her to put the defendant away for the rest of his life

9 0 without a gun. She hadn't heard all of the evidence yet, so she didn't know, but she was expressing that as her opinion during that period of time. It was before and during the impanelment process. MR. SULTN: Your Honor, I think if the Court's going to do a voir dire, I'd like the defendant to be present. THE COURT: Of course. Where is the defendant? MR. FEE: Can we read that? THE COURT: I'm sorry. He should have been here. When I had indicated that, that was on evidence. MR. SULTN: Your Honor has indicated that he can't be here at side bars. THE COURT: No, no. That was on evidence issues. That was during the course of the trial on evidence issues. bsolutely nothing to do with this. MR. SULTN: Yes, your Honor. Okay. THE COURT: The law is clear that he has a right to be here when we're discussing jurors. MR. SULTN: Yes, your Honor. THE COURT: The law is also absolutely clear that he does not have a right to be here during -- numerous cases -- that he does not have a right to be present -- numerous Federal cases and others -- that he does not have a right to be present when evidence is being discussed. The context in which it was discussed about his being present

10 0 at side bar was entirely in the context of during the course of the trial side bars on evidence. Not -- MR. SULTN: I agree, your Honor. I don't agree with the Court about his not having a right to be present during evidence side bars, but I agree that that's the context in which the Court discussed it. THE COURT: Do you want to talk to him? MR. SULTN: No. If he could just be present, your Honor? THE COURT: Sure, he can. nd you should read that, and you should take a minute to show it to him. MR. SULTN: Thank you. (The defendant is now present at side bar.) THE COURT: What I'm checking is I have a partial transcript of Day of the voir dire. I think she may have been Day, so I'm looking. If that's true, I'd like to just see her answers. MR. SULTN: You want us to stay here, your Honor, or go back? THE COURT: You can go back. nd again, if you want me to repeat -- have Mr. McCauley repeat for Mr. Hernandez exactly what he said -- MR. SULTN: It's not necessary, your Honor. I think it's in this document. THE COURT: It's in the document.

11 0 MR. SULTN: I think the Court's going to use this as a document. THE COURT: I am. It's Juror, right? MR. SULTN: Yes, your Honor. MR. MCCULEY: Yes, your Honor. THE COURT: nything that would affect your ability to be fair and impartial? That earlier matter, whatever she had in her questionnaire. Law enforcement. "No, I tend to believe -- I like to make informed discussions. I feel knowing as much as I can helps. If there's an issue as to the defendant testifying, would you be in a position to make an informed decision? No." Back and forth on the right to testify. Instructions on the right to testify. "Would you have any problem? No. What do you recall? I don't have a lot of free time. I know he played for the Patriots. I don't know anyone in the area, never paid attention. I should have, but I didn't. Do you recall any details? I recall seeing him taken out of his house with a T-shirt with handcuffs. Just regular footage. nything else? No. Do you ever remember -- did you ever follow anything about the case? Do you ever remember reading any rulings? No. Have you ever heard any allegations or claims anywhere else? No. nything about the image that would affect your impartiality? No. ny firm opinion? No. Can you put it aside? No."

12 0 MR. SULTN: Looks like the Court didn't specifically ask her about any conversations she had had about the case. MR. BOMBERG: Clearly about following the case. THE COURT: I asked -- but I have repeatedly asked them, and she has said she knew nothing at all about the case. This would suggest she did know something. MR. BOMBERG: You recall also, your Honor, when we actually impaneled -- began impaneling the jury from the group of the indifferents, you asked if anybody had had any discussions. Four people raised their hand. THE COURT: Right, right. MR. BOMBERG: nd they described people saying to them about this matter. She's actually affirmatively out there telling people about it. THE COURT: Right. MR. SULTN: I would ask the Court to inquire, among other things, about how -- the genesis of this. It's interesting that she says that she met somebody that he knows. I don't -- THE COURT: How would she know he knew him? MR. SULTN: Yeah. Exactly. MR. MCCULEY: I presume there must have been a conversation. You know, that he said he knew him. But I agree. Let's bring her in.

13 THE COURT: She says -- Littlefield at least says she initiated the conversation. MR. SULTN: Right, but I mean, she never actually met Mr. Griffin. I'm just curious about how the whole thing started. THE COURT: Right. Sure. Let's bring her in. MR. SULTN: You want to do it over there, your Honor? THE COURT: Yeah. It's probably easier to do it over there. nd Mr. Hernandez certainly is present, and you will both have an opportunity to ask any follow-up questions, to suggest any follow-up questions. MR. MCCULEY: Thank you, your Honor. THE COURT: Let's bring her in. The questionnaire also asks have you ever expressed any -- MR. SULTN: Opinions. VOIR DIRE EXMINTION OF JUROR NO. BY THE COURT: 0 Good morning. Good morning. Ms. Chodkowski, right? Yes. I just have a few more questions for you. I've asked sort of at various times whether you have ever discussed the questionnaire, the impanelment process, Mr. Hernandez,

14 or anything about this trial with anyone, and you haven't indicated you have. Can you kind of search back your memory? Do you ever remember talking about this with anyone? No. I mean if -- very limited. Just yes and -- Keep your voice down. Very limited in what way? Well, I own a business, so if, you know, my customers ask my employers where I am, I'll say jury duty. nd I've received calls from people, and I just say, "I'm sorry. I can't talk about it." nything else that you remember? No. Do you ever remember before the trial expressing any interest in this trial? (Indicating no.) Discussing the issues, any of the issues in this trial? No. Do you ever remember since the impanelment process 0 began, other than indicating you're on jury duty, discussing the parties, anything -- or counsel or anything to do with this trial with anyone? I have a coworker who is friendly I think with one of the attorneys on the prosecution. Which one?

15 I don't know. I was at a -- well, they called it a Christmas party, but it was a couple of weeks ago, and my coworker said that he knew -- What's the name of your coworker? David Littlefield. nd what did he say? He just said he knew one of the attorneys. I think he said the name, but I didn't really -- You don't remember which name? I'm sorry. I don't. Other than he said he knew one of the attorneys, anything else at all? No. nd did he initiate that conversation with you? Somebody else at the table did. nd once again -- Someone else at the table said what? Said that I was going through the process. Someone else at the table said that you were going through the impanelment process? 0 Yes. nd what did you say? I didn't say anything. nd that's when he said he knew one of the attorneys. nd once again, I had to tell my immediate supervisor, you know, that I was going through this.

16 Did you initiate any conversation at that function with David Littlefield? No. Did you ever bring up Brian Griffin's name with David Littlefield? I don't know who Brian Griffin is. When he said to you he knew one of the attorneys, did you ask him which one? No, I didn't. Did you have any discussion with him at all in response to his bringing that up? No. I ended it. Have you ever talked to Paul Salisbury about this case or about Mr. Hernandez? Paul Salisbury is the manager at Hertz Rent--Car. We do a drive-in claims center there. nd I think it was Paul that originally mentioned that Dave Littlefield was friendly with one of the attorneys. I thought you indicated just now that Mr. Littlefield 0 said he knew one of the attorneys? Yes. But Mr. Littlefield also does that drive-in. No, but who -- was it Paul that told you that Mr. Littlefield was friendly -- Yes. -- or was it David Littlefield that told you?

17 Uhm, it was -- I don't know. I'm not sure. I think it might have been Paul originally, which I didn't think anything of it. The way that we work, we don't go into an office. Everything is electronic. So we kind of see people that we have in common, but not each other. You say first. Do you believe that Paul told you that Littlefield was friendly with the attorney? I remember him saying something way back. Way back when? Before the impanelment? Probably before Christmas, yeah. Before you were even called with impanelment? Yes. He just told you that David was friendly with an attorney who was on this case? Yes. When we were originally notified -- I'm not 0 sure if it was right before Christmas. The actual first day that we had to come. nd Thursday and Friday afternoons, that is my drive-in, from one to four. So I had to tell my supervisor that I couldn't be there because of jury duty. Right. nd then because of the date, you know, somebody said what trial it probably was and that. So I kind of got the impression that they had already discussed it. Did -- at that point are you saying Paul told you

18 back then that Mr. Littlefield was friendly with one of the attorneys? I think it was back then, yes. nd then you say Mr. Littlefield brought it up independently at this social gathering? No, not Mr. Littlefield. The person that was sitting on the side of me brought it up, and Dave was sitting on the side of him. But at that social gathering did Mr. Littlefield tell you he was friendly with one of the attorneys, or was it someone else? Did he say it directly to me? He was answering a question. What was the question he was answering? "Did you know -- don't you know one of -- you know one of them. Don't you know one of them?" I wasn't really paying that much attention. Someone else in that social gathering -- 0 Yes. -- said to Mr. Littlefield, "Don't you know one of the attorneys in the Hernandez case," and he said he did? Yes. nd you weren't part of that conversation at all? No. nd -- but you didn't leave the room either when you

19 heard the case being discussed? I -- it was a huge table. There were probably sixteen people. They were sitting over to my right. I immediately started talking to the person over to my left. nd you said you also heard someone say to you -- did anyone say to you, "re you on that case?" No. Not a direct. But once again, my immediate supervisor must have told people, someone, "I need you to do the drive-in because Cheryle has jury duty." Did you ever express an interest over the last year to Mr. Salisbury with being -- an interest in being picked on the jury in this case, an interest in being on this jury? No. You've never said to Mr. Salisbury you hope you're picked on this jury? You hope you're picked on the Hernandez case? 0 No. Never? No. Did you ever say to Mr. Salisbury that you were aware that a gun had not been found? No. Did you ever express to him any opinion as to what the impact would be on you as a juror if the evidence was

20 0 that a gun wasn't found? No. Did you ever make any statement to the effect that if there was no gun, you could not convict? gun? No. nd you would have a hard time convicting without a No. Did you ever express any opinion at all before you arrived here for -- before you arrived here to fill in the questionnaire, did you ever express any opinion at all about this case? No. Did you ever discuss this case with anyone? No. But I have been in a room where it's discussed, and I do not partake in it. Did you ever indicate that until you heard -- that you hadn't heard the evidence, but it would be difficult to put the defendant away without a gun? 0 No. Without evidence of a gun. Have you -- I'd just ask you to step aside for a moment. Okay. MR. SULTN: Can we have just a moment, your Honor, please?

21 0 THE COURT: Yes. (Counsel conferred.) MR. SULTN: Your Honor, our view is that the juror appears to be credible. If the Court feels the need to go further, then of course the Court has the discretion to do that. We feel she's credible. We feel that nothing has happened to impair her ability to serve. If the Court is -- THE COURT: I think that it's impossible to make that determination without hearing from Mr. Salisbury and Mr. Littlefield. MR. SULTN: I understand. THE COURT: This is directly -- I mean, her testimony is -- it could not be more degrees. If we have a juror who's been for the last year saying she's really hoping to be on this case, your concern that -- your expressed concern of the defendant about stealth jurors, if we have someone who for a year has been saying she really hopes she was picked on that case, and who has expressed a clear opinion, who has said on her questionnaire she has never expressed an opinion, she has not formed any opinion, and she has never mentioned the case -- MR. SULTN: I agree. If the Court so finds, obviously, we'd have no problem with her being dismissed.

22 0 THE COURT: I mean, if she really said these things, then I would imagine you would want her dismissed. MR. SULTN: Yeah, of course. THE COURT: nd she certainly has said she hasn't. I'm willing to ask her follow-up questions, but I think that it's important to get those two people here and have a hearing. MR. SULTN: Your Honor, if the Court's going to continue with the testimony in the meantime, obviously she should be admonished not to discuss this with the other jurors. I also want to make sure that she's told in some way -- that the Court makes some inquiry to make sure that what just happened is not going to affect her as a juror. I don't want her to feel chilled in any way if ultimately she's going to serve as a juror in this case. I don't want her to feel someone's looking over her shoulder. In other words, the Court -- what the Court did was obviously completely appropriate. I want to make sure it hasn't affected her, the voir dire has not affected her either. THE COURT: Mr. McCauley, your view on whether the Court should have a further evidentiary hearing? MR. MCCULEY: I agree with that, your Honor. If -- one of the things about it is I -- maybe I misunderstood, but when she first indicated she was at the table, she said that somebody said -- connected Mr. Griffin, and they

23 0 said, "Oh, Cheryle, that's the case that you're on." Later you asked her a question, and she said, "I couldn't really hear," and she then didn't say that. So situationally, again, right now I understand what the Court's saying. She's denying it. That's fine. These two individuals, one -- this individual David Littlefield, from what I understand, there's this desk or whatever that if you get -- when that opens up, that's actually apparently good time, because you get more business. He has no motivation -- THE COURT: I'm not -- I just don't think you can do it on the papers. MR. MCCULEY: That's fine. THE COURT: Particularly since I don't have an affidavit from him. MR. SULTN: It's a credibility determination. THE COURT: It's a credibility determination, and I think that both of them are going to have to testify. MR. MCCULEY: I agree with that. I would just say this, your Honor. s to right now with this juror, I just ask she not go back to the juror room, and she be put someplace separate until this matter is resolved. MR. SULTN: Well, your Honor, respectfully I think -- THE COURT: Well, how fast can we get both of them

24 here? 0 MR. MCCULEY: I think within an hour, your Honor. I'll have the state police contact them. nd then if the Court is essentially issuing a process for them to appear, we'll get them here in an hour. I think they're in Raynham. MR. SULTN: I don't think we can proceed, your Honor, until this is resolved. THE COURT: You agree? MR. MCCULEY: We agree on that. THE COURT: Yes. MR. MCCULEY: I'm just asking that the juror at this point -- because it would be a natural thing, "Well, what's going on? What did they" -- you know, and it's going to be a short period of time until we resolve the issue. MR. SULTN: Your Honor -- THE COURT: I think it is clear to this juror that we have information. I've asked her pointblank about Mr. Littlefield, and I've asked her pointblank about statements made to Paul Salisbury. I think it's clear to this juror we have information, and I would agree that I don't think she should be in that jury room; someone who there is a serious question as to whether this person has been honest, whether this person may feel at this point

25 0 like disrupting the entire process and making statements to jurors that will lead us to have to start all over again. I think there is a real risk of that. I don't have any problem with asking her the question that you've asked me to pose as to whether this inquiry itself has had any effect on her ability to be fair and impartial, but I don't think it would be wise to have her sitting with the other jurors, and I would indicate to her what we're doing. MR. SULTN: Well, your Honor, I think that's correct. I don't think you should pose that question to her now. We might as well wait until we're done. I think you should just tell her that we're going to further investigate this, and she's going to be kept apart until we're done. nd I'd also ask the Court to instruct Mr. McCauley to instruct the state police -- THE COURT: Not to say anything. MR. SULTN: -- not to say anything, not to question these people in any way, shape, or form until they can be brought in here. MR. MCCULEY: That goes without saying, your Honor. I will do that. I guess just the phone call is going to be made to them, and they're just going to be -- obviously if the Court has ordered them to appear, they'll either be picked up and brought in. They're not to discuss it with

26 anybody at this time. THE COURT: Right. Yeah. MR. MCCULEY: Thank you. THE COURT: nd we should get the third name from her. MR. RNKIN: Will they be brought in separately so that the two people don't have an opportunity -- MR. MCCULEY: Yes. (Back with the juror.) BY THE COURT: Back to when you were at that table, that long table, you indicated Mr. Littlefield said something, and someone said something to Mr. Littlefield first. Who was the person that said to Mr. Littlefield something like, "Don't you know someone?" I don't remember. It was a big square table. It wasn't a long table. Okay. So you were sitting where? Here's the square. I was sitting here. There were 0 two people. I want to say there was a space there, and Dave was sitting there. Frank Sullivan was sitting over here and another guy named l. You don't know l's last name? Pellissier (phonetic spelling). nd they were all at the table? nd was it either

27 Frank Sullivan or l that would have said -- Lowe. No. It was someone sitting over to my right. John John what? Lowe. L-O-W-E? Yes. So he's the one that you say -- I'm not absolutely sure it was him. It was someone that was sitting over at that -- But you say it wasn't Frank Sullivan? No. Because they were on my left. I was at the corner. nd again, what do you remember of that? You said you didn't initiate anything, right? No. I remember someone saying, "Dave, don't you know someone?" nd I immediately -- 0 Don't you know someone what? "Don't you know one of the lawyers?" But did they indicate what case? Don't you know one of the lawyers wouldn't tell you what case you're talking about, right? I think they started -- Was there already a conversation about the Hernandez case?

28 Somebody had said something about, "What's going on with that?" Because once again, they had to keep getting people to cover my shifts. But someone said what? Someone said what's going on with what? "re you still going through that jury thing" and whatever? nd then it was said, "Dave, do you know someone? Dave, don't you know someone?" nd he responded? Yes. nd you didn't -- nd at that point -- I mean I wasn't really paying attention. I don't know Dave that well. We work together. We never see each other. Did you tell him you'd met the attorney that he knew? No. We want to conduct some further investigation into 0 this, into what statements may have been made; and while we're doing that, I'm going to keep you apart from the other jurors. You shouldn't take this adverse in any way. We're just -- it's our duty, my -- the Court's duty to conduct these kinds of investigations if there's any possibility at all that any juror may have been exposed to any outside influence. So we're going to be in the process of doing that, and we'll get back to you.

29 Okay. Thank you. MR. MCCULEY: Nothing else. Thank you. MR. SULTN: Your Honor, maybe we could find out if 0 these other two individuals would be at work -- THE COURT: Yeah, I will. MR. SULTN: -- because perhaps the Court would want to hear from them. THE COURT: I would. Thank you. I will try to get them all in. So we've got John Lowe, Sullivan, and l Palmeri [sic]. Because they don't have -- their credibility isn't on the line. Well, John Lowe's might be. MR. SULTN: We're just interested -- THE COURT: You know, it sounds like a table where everyone could have heard. I think it would be useful to get everyone's perspective. MR. SULTN: Yes, your Honor. MR. MCCULEY: Thank you, your Honor. MR. FEE: Thank you, your Honor. (The Court conferred with the clerk off the record.) (In open court.) THE COURT: Do counsel want me to just have the court officer indicate that we're dealing with some -- I'm dealing with legal issues with counsel?

30 0 0 MR. SULTN: Yes, your Honor. I think that's appropriate so they'll know what's happening. MR. MCCULEY: Thank you. THE COURT: If you could do that. nd while we are waiting, just because the issue has come up again of counsels' -- of Mr. Hernandez's ability to be present at side bar, and the defendant has raised whether he has a legal right to be present, let me just explain the basis for the Court's ruling that he does not have the right to be present at side bar when evidence issues are being discussed. The Rules of Criminal Procedure, Rule (a)() states the defendant does not have to be present in any proceeding where evidence is not to be taken, similar to the Federal rule that states the defendant need not be present when a proceeding involves only a conference or hearing on a question of law. The rationale is that the defendant's presence on a legal issue will not aid defense counsel in making arguments. The Federal courts have often cited this rule in determining that the defendant does not have a right to be present at conferences during the trial involving evidentiary issues that are typically handled at side bar. The Fifth Circuit has cited the rule in concluding the defendant does not have a right to be present at a

31 0 conference involving the admissibility of a witness' testimony. United States vs. Lewis. nd also United States vs. Sinclair where the conference was whether certain testimony was hearsay. Other Federal circuits have reached similar conclusions. The Eighth Circuit in Cox vs. United States held that a conference to determine whether a witness' recollection can be refreshed with a grand jury transcript is not the kind of side bar that the defendant has the right to be present, holding that the defendant has no right to be present when matters of evidence, the form of questions, and other questions of law are discussed. The Tenth Circuit in Deschenes vs. United States, defendant has no right to be present during conferences and questions of law. Numerous state courts have found no right to be present at side bar or bench conference outside the hearing of the jury which relates to legal matters, evidentiary matters, or logistical or procedural matters. New York in People vs. Schlau, no right to be present at a conference concerning the scope of cross examination of a witness. Heywood vs. State, Georgia case, defendant no Constitutional right to be present at side bar involving legal arguments, evidentiary objections, or procedural matters. Maryland case, Kelly vs. State, no

32 0 due process right to be present during a conference as to whether late disclosure of a witness was a discovery violation and whether a witness could be impeached with prior convictions. California cases, People vs. Lewis and People vs. Waidla, defendant no Constitutional right to be present at a bench discussion on procedural or evidentiary matters. Illinois case, no due process right to be present during conference ruling on objections to defendant's testimony as beyond the scope of cross examination. Brown vs. State, no due process right to be present at a conference regarding admissibility of certain evidence or whether a witness violated the sequestration order. While there does not appear to be any specific Massachusetts case addressing this specific issue, the Massachusetts cases generally deal with side bar conferences on issues of jury voir dire or jury misconduct. In Dyer, the Court noted that a defendant's entitled to be present when the judge conducts inquiry about consequential matters such as jury misconduct or bias. For all of those reasons, the Court ruled without at the time stating its reasoning with respect to the defendant's request to be present throughout the trial at all side bars.

33 0 MR. SULTN: Your Honor, I don't want to belabor this, but for the record, I'd like to say that, as usual, the Court has exhaustively researched the matter. s the Court just stated, there's no Massachusetts case that I'm aware of on point. It's our position that as a matter of Constitutional rights under rticle of the Massachusetts Declaration of Rights that Mr. Hernandez has the right to be present at all critical parts of his trial. Certainly side bars which discuss important evidentiary rulings by the Court are a critical part of the trial. nd so it's our position that he has a Constitutional right to be present, irrespective of what the Federal courts have said or what other states have said. Under our State Constitution -- THE COURT: nd irrespective of Massachusetts Rule of Criminal Procedure Rule? MR. SULTN: I don't think Rule specifically addresses whether or not he has a right to be present. THE COURT: The defendant does not have to be present at any proceeding where evidence is not to be taken. MR. SULTN: nd finally, your Honor, as a matter of discretion, we would ask the Court to permit him to be present even if he's not Constitutionally entitled to do so. Thank you. THE COURT: The Court's ruling will stand.

34 0 We're going to suspend at this time, pending the arrival of witnesses for an evidentiary hearing. MR. SULTN: Your Honor, (a) says of course defendant shall be entitled to be present at all critical stages of the proceedings. THE COURT: Right. The issue is whether it's critical. (The Court recessed at :0 a.m. and reconvened at : a.m., without the jury.) THE COURT: Is Mr. McCauley -- MR. BOMBERG: He's here. THE COURT: Because this is a -- you may film if you wish. Because this is a matter dealing with a sitting juror and the juror's ability to continue sitting as a juror, are one or both parties seeking closure of the courtroom? MR. MCCULEY: The Commonwealth is requesting closure, your Honor, at this time. THE COURT: Defendant? MR. MCCULEY: I understand it's without objection. MR. SULTN: Your Honor, the defendant has no objection, and the defendant waives any right he has to have the public present during this particular proceeding involving a juror. THE COURT: If you could just articulate the interest

35 0 in closure? MR. MCCULEY: Your Honor, the Commonwealth requests closure. This is a sitting juror that an issue has come to our attention. We've raised it with the Court. We'd ask, in fairness to fully investigate the matter and inquire, that the courtroom be closed. THE COURT: nd is there a concern by both of you that the juror may be impacted by any publicity that may result from the hearing should the juror be sitting on the case? MR. MCCULEY: I think we share in that concern, your Honor. MR. SULTN: That's correct, your Honor. THE COURT: The Court finds that there are compelling reasons for closure of the courtroom. That both the Commonwealth and the defendant have advanced an overriding interest not risking infecting the juror whose qualifications are at issue that is likely to be prejudiced. The Court finds that, given the widespread publicity attendant to this case, there is a substantial probability that both parties' right to a fair trial will be prejudiced by the dissemination of questioning of persons concerning a sitting juror's qualifications to serve. Should that juror continue to serve, it is very

36 0 likely it would be difficult or may be difficult for the juror to remain impartial, a concern that has been specifically articulated by the defendant. The fair and orderly administration of this case and its proceedings that are now ongoing could be jeopardized in the absence of closure. Reasonable alternatives do not exist. uestioning at side bar where counsel will be allowed to question as well as questioning by the Court, and where the Court is going to need to take notes because the Court will be making findings, is difficult in that setting and not practical. The closure is no broader than necessary to protect the interests at stake. Depending on the results of the questioning, a transcript of the closed hearing will be available as soon as the stenographer can produce it, or it will be made available after a verdict is rendered. I can't rule on which of those alternatives until after the hearing. t this time the courtroom is closed, and the public is asked to depart. (The courtroom was cleared.) THE COURT: Do we have the first witness? MR. MCCULEY: Yes, we do, your Honor. PUL W. SLISBURY, JR., Sworn VOIR DIRE EXMINTION BY THE COURT:

37 Good morning. Could you please state your full name? Paul W. Salisbury, Jr. nd could you just tell us where you work? Hertz Rent--Car in Raynham, Massachusetts. I want to thank you for coming in so quickly. We very much appreciate it. I'm going to ask you some questions, and then counsel will have the opportunity to ask you some questions as well. It's been brought to our attention that over the last year or two, you may have had some conversations with Cheryle Chodkowski? Yeah. She's an appraiser at Hertz Rent--Car. Well, she works for Viking uto ppraisal in Hertz Rent--Car office, and we've had just general conversation about the case since June of whenever it happened. Since the time of the arrest? The arrest, yes. nd I know it's sort of difficult, but if you could go -- thinking back to the time of the arrest -- 0 Yep. -- what -- if you remember any conversation at that time and then -- It was just general conversation about the things that we heard in the news and her -- just general conversations about if -- you know, she didn't think that

38 if they didn't find a weapon, it would be hard for her to convict, especially to put someone away for life. nd it was just really general conversation about what we heard on the news. nything else that you remember at that time, other than you said she didn't think if they didn't find a weapon, it would be hard to convict and put someone away for life? ny other expressions of any opinion at all over the last few years? It was mainly just that one opinion that she had. nd then she said, you know, we don't know, of course, all the evidence. So it's kind of hard to make an opinion unless you have all the evidence. How often would you say over the last two years there's been any of that kind of conversation? How often do you think the topic has come up? Maybe at first when it happened. She would only work 0 on Thursdays and Fridays. Maybe once every few weeks we would talk about it, if there was anything new developing in the news. nd then when she got the summons for jury duty -- Let's stick first -- Sure. -- before the summons. ll right.

39 Would you say once -- you said once every few weeks? Yes, once every few weeks. Yeah, because she only works on Thursdays and Fridays, and sometimes she's not always there every Thursday or Friday. nd so when you say came up, would continuing developments be discussed? Just what we've heard or general statements of what new is in there. What kind of statements? For example, did the -- are you aware that whether or not Mr. Hernandez has been charged with respect to anything in Boston, for example? Yeah, we talked about what happened in Boston when that was -- when those charges were brought about. nd anything else that was talked about? Do you remember talking about any of the rulings of evidence that may have been in the press about -- The latest evidences that were thrown out, yes. So there was discussion about the evidence that was thrown out? nything else? 0 Not that I can recall. nd then at some point she received a summons to come in for jury duty, right? Yes. nd did she make you aware of that? Yes.

40 0 nd was there any speculation or discussion as to whether it might be for the Hernandez case? She told me what the date of it was, and we put two and two together, and we figured out that it was probably for this case. nd then when she came in to fill in the questionnaire -- Uh-huh. -- was there -- did she tell you anything about that process? She explained the process of what a juror does when they first get here, to filling out the questions. She didn't tell me about any of the questions -- any of the answers that she answered, and then I saw them online, of course, when they were released to the public. nd after you saw them online, did you have any discussions with her? The only discussion that we had was when, I guess, 0 when you guys were questioning her after the questions. She discussed a few of those questions. Which ones? I believe the only question she told me was if it would be harder for you to believe a police officer's testimony. nd what did she say about that?

41 I believe she said no, or whatever the answer she gave you guys. It was in passing while we were working. So -- Would you say that the two of you -- from your conversations with her, would it be your opinion that she was following the case fairly closely? That you were both sort of up on evidence rulings and other cases? I think we were intrigued by the case because I think we're both Patriots fans and football fans, and I know she's gone to a few games with -- and I've gone to a few games with her. So we were following the case very closely. Especially only in the news. MR. MCCULEY: I'm sorry. I didn't hear that last part. THE WITNESS: Only in the news. We could only follow what was in the news. MR. MCCULEY: Thank you. BY THE COURT: Have you heard about and ever discussed with her any 0 allegations or claims of misconduct by Mr. Hernandez in any other state in the United States, like Florida? No. Or anything else here in Bristol County? No. Have you ever heard about anything involving the

42 sheriff of Bristol County? No. Have you ever heard about -- the name Mr. Bradley strike any bell? I've only seen it online that name. Ever heard about an allegation of any shooting of someone in the eye? Only saw it online or on the news. nd was that something that was discussed with -- Cheryle? -- Cheryle? I don't recall if it was. It could have been, but I don't know. nd then after -- other than telling you that the Court asked her whether she would believe a police officer's testimony more than someone else, and she said no, any other questions she discussed with you? Not that I can recall. She just told me that when 0 she was picked, she said she would see me in May or June when the case was over because she wouldn't be there on Thursdays or Fridays. Last time I heard from her was two Mondays ago, I believe. How many games do you remember going with her? I believe I went to two games with her. Two or three.

43 nd how many do you believe she went to not with you, based on, you know, your chatting with her? I know she went to one this year, I believe. Maybe four or five. I know they try to go to at least one game a year. nd with respect to the questions on the questionnaire, after you saw it, did you ever talk to her about any of those questions? No, because I really -- I haven't really seen her since the questions were released. I'm going to let counsel ask you some questions. Sure. Then I may have some follow-up. MR. MCCULEY: Thank you, your Honor. VOIR DIRE EXMINTION BY MR. MCCULEY: Sir, you indicated she expressed significant interest in the case? 0 Uh-huh. You just have to say yes or no. Yes, that's correct. nd you talked to her many times about it over the course of -- since it occurred? Yes, that's correct. nd would you agree that at some point she actually

44 indicated she -- this is even before she got her jury summons -- case. Uh-huh. -- she wanted to be on the jury? Yes, that's correct. nd what did she say about that? She thought it would be cool to be on a high profile THE COURT: I'm sorry. I couldn't hear you. THE WITNESS: She thought it would be cool to be on a high profile case. BY MR. MCCULEY: Did she express any -- when she mentioned that it would be cool to be on a high profile case, did she mention a concern about her work? Yes. She thought that would affect her -- it would definitely affect her in the wallet, and also she has a dog grooming business, and she was concerned about that. So in addition to her work that she does -- 0 t Viking uto ppraisal. -- she runs a dog grooming business? Yes, that's correct. nd is she -- does she have other means of support outside of those two jobs? Those are the only two jobs I know she has. I know

45 she has a boyfriend that she's lived with for a very long time. So after indicating that she wanted -- she thought it would be cool to be on it, did she say but that outweighed the concern she would have about not having work, the dog business or your business? Her dog -- the last statement I remember her saying to me was she believes everything happens for a reason. Her dog just passed -- she just had to put her dog down. So I think she thought the high profile case outweighed the loss of income. When did the dog get put down? Maybe a month and a half ago. nd with regard to the police officer, why did she bring that question up out of all the other ones? She said that was the -- that question striked her differently than any other question that was asked. 0 Did she further explain what she meant? No. ll she said was the answer that she gave. nd when she said it struck her, meaning she found there was something about that that was different than any of the other questions? Yes, I believe so. nd what did she say? ll she said was what her answer was and that she had

46 to think about the question before she stated the answer. Okay. nd she indicated at some point that she felt she couldn't convict somebody if they didn't have a gun? She thought it was very hard for her to put someone away for life without the murder weapon. Okay. nd with regard to that, how did she know -- or in your conversation, did you know there was no gun found? From what we've heard through the news reports, we haven't heard that a weapon was recovered. Okay. nd so when she was telling you that, was it your -- did it seem like she knew no gun was found and that's why she made that statement? From the news reports, yes. nd with regard to her Honor asked you about certain rulings that had been made in the case? Uh-huh. Either allowing evidence or not allowing evidence; is that right? 0 Yes. nd the two of you have talked about those rulings; is that true? Yes. The ones that were recently thrown out, like the picture and -- I forget the other one that was thrown out.

47 When you say the picture, just describe the picture that you're referring to? Of Mr. Hernandez in the mirror from TMZ. Was that him holding a gun -- Yes. -- and allegedly taking a picture of himself? Yes, that's correct. Did you have a conversation with her about that? We just said, "Oh, another piece of evidence was thrown out of the case, and this is what it was." She appear to be disappointed that the evidence was being thrown out? I didn't -- I don't think she had a reaction either one way or the other. But she clearly knew about the picture? Yes, she knew -- she was following it online and through the news reports. nd you say she was following it online. This is somebody who is -- she's a Patriots fan? 0 Yes. nd seemed to be very interested; is that right? Yes, that's correct. Do you know of anyone else who said to you within the last year they wanted to be on the jury because they thought it was cool?

48 Nope. MR. MCCULEY: If I could have -- BY MR. MCCULEY: Sir, just characterize your relationship with Cheryle. I think we're work acquaintances. We've known each other for about five years. Okay. Would you say you've been friendly? Yes, we're very friendly people. She's provided me with a lot of life advice. nd to the extent that her leaving -- if she were to sit on the jury, that obviously there was a position that somebody else had to fill; is that right? Yeah, he would -- the owner of Viking uto ppraisal would fill it with whoever he picked to put in for those days. Okay. nd since that time where she's had to appear in court, has somebody else by the name of David Littlefield actually been a filler? 0 That's correct, yes. nd do you know him? I've known him for two years only through Viking uto ppraisal. nd do you know him by a nickname? Yes. Cheryle calls him as Sky ngel.

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