1 APPELLATE COURT NO. 2 3 4 6 7 8 9 10 IN THE OF THE ANTHONY SHAWN MEDINA, VS. THE STATE OF TEXAS, COURT OF APPEALS STATE OF TEXAS Appellant, Appellee. 11 CAUSE NO. 726088 12 APPEAL FROM THE 228TH DISTRICT COURT 13 OF HARRIS COUNTY, TEXAS 14 JUDGE SAM ROBERTSON PRESIDING STATEMENT OF FACTS VOIR DIRE VOLUME III OF XXIII 21 JULY, 1996 22 23 24 Sandra J. Oballe Official Court Reporter 228th District Court Harris County, Texas 1
1 VOLUME III JULY, 1996 2 CHRONOLOGICAL INDEX 3 VOIR DIRE PAGE 4 Voir Dire Examination By The Court - Nos. 1-40 3 6 JUROR NO.4, MARGIE LAMBRIGHT NANCE 7 Voir Dire Examination By The Court 27 8 Voir Dire Examination By Mr. Baldassano 31 9 Voir Dire Examination By Mr. Guerinot 43 10 Voir Dire Examination By Mr. Baldassano 48 11 Voir Dire Examination By Mr. Guerinot S2 12 Voir Dire Examination By Mr. Baldassano 6 13 Juror Excused - State Passes 61 14 JUROR NO.7, CHARLES CARLTON FREEMAN 16 Voir Dire Examination By The Court 63 17 Voir Dire Examination By Mr. Baldassano 72 18 Voir Dire Examination By Mr. Guerinot 89 19 Juror Excused - Defense 96 21 JUROR NO.8, JO ANN CAPUCHINO BERNAL 22 Voir Dire Examination By The Court 98 23 Voir Dire Examination By Mr. O'Brien 109 24 Voir Dire Examination By Mr. Guerinot 122 Juror Struck State 126 i. ; f.1"'
1 2 3 4 6 JUROR NO. 9, JERRY LYNN COLDIRON Voir Dire Examination By The Court Voir Dire Examination By Mr. Baldassano Voir Dire Examination By Mr. Guerinot Juror Excused - Defense PAGE 129 137 7 16 7 JUROR NO. 10, BETTY BROWN 8 Voir Dire Examination By The Court 166 9 Juror Excused - Agreement 166 10 11 12 13 14 16 17 18 19 21 22 23 24 ii
1 VOLUME III JULY / 1 996 2 ALPHABETICAL INDEX JUROR NO. S, JO ANN CAPUCHINO BERNAL Voir Dire Examination By The Court Voir Dire Examination By Mr. O'Brien Voir Dire Examination By Mr. Guerinot Juror Struck - State 8 9 JUROR NO. 10, BETTY BROWN 10 Voir Dire Examination By The Court', 166 11 Juror Excused - Agreement 166 12 13 JUROR NO. 9, JERRY LYNN COLDIRON 14 Voir Dire Examination By The Court 129 Voir Dire Examination By Mr. Baldassano 137 16 Voir Dire Examination By Mr. Guerinot 7 17 Juror Excused - Defense 16 18 19 JUROR NO. 7, CHARLES CARLTON FREEMAN Voir Dire Examination By The Court 63 21 Voir Dire Examination By Mr. Baldassano 72 22 Voir Dire Examination By Mr. Guerinot 89 23 Juror Excused - Defense 96 24 iii
1 JUROR NO. 4, MARGIE LAMBRIGHT NANCE PAGE 2 Voir Dire Examination By The Court 27 3 Voir Dire Examination By Mr. Baldassano 31 4 Voir Dire Examination By Mr. Guerinot 43 Voir Dire Examination By Mr. Baldassano 48 6 Voir Dire Examination By Mr. Guerinot 2 7 Voir Dire Examination By Mr. Baldassano 6 8 Juror Excused - State Passes 61 9 10 11 12 13 14 16 17 18 19 21 22 23 24 iv
1 CAUSE NO. 726088 2 3 STATE OF TEXAS IN THE 228TH DISTRICT COURT 4 VS. OF HARRIS COUNTY, T E X A S ANTHONY SHAWN MEDINA MAY TERM, A. D., 1 9 9 6 6 7 8 A P PEA RAN C E S: 9 10 For the State: Mr. Steve Baldassano Mr. Case~/O'Brien, 11 Assistant Distr{ct At~orney Harris County, Texas 12 13 For the Defendant: Mr. Gerry Guerinot 14 Mr. Jack Millin Attorney at Law Harris County, Texas 16 17 BE IT REMEMBERED that upon this the 18 th day of July, A.D., 1996, the above entitled 19 and numbered cause came on for Voir Dire before the Honorable Sam Robertson, Presiding Judge of the 21 228th District Court of Harris County, Texas; and 22 the State appearing by counsel and the Defendant 23 appearing in person and by counsel, announced ready 24 for Voir Dire, and the following proceedings were had, viz: 2
1 (Start Time 11: a.m.) 2 PANEL NOS. 1-40 3 THE COURT: Good morning, members of 4 the jury panel. My name is Sam Robertson. I was a trial judge here in Harris County for some years 6 and when I served on the appellate bench for a 7 number of years. I retired at the end of '94, I 8 guess it was, did not seek reelection that year. 9 But I elected to remain a judicial officer, which 10 means that I'm subject to assignment from time to ~..<"". ' 11 time by the presiding judge of this administrative 12 district. 13 I've been assigned to conduct the 14 trial that we're about to begin here in this courtroom. First of all, I apologize to you-all 16 for the manner in which you're handled. I 17 apologize for the fact that you're called to jury 18 duty because serving on a jury or even coming down 19 for jury duty because obviously all of you-all can't sit. But we've got to have a large panel in 21 order to get 12 that will serve as jurors. I do 22 apologize for the manner in which you're handled. 23 I'm an old country boy. I sort of 24 refer to it sort of like handling a bunch of cattle, herding you-all around and all. I know our 3
1 facilities aren't the best. I sometimes wish the 2 county commissioner and judge would come over and 3 see some of the facilities we subject our citizens 4 to for a period of time while they serve as jurors. And along that line I hope I live to see 6 the new criminal justice center that they say is 7 going to be constructed here that will be multiple 8 stories and maybe all our criminal justice 9 facilities can be in one building. 10 I don't like the manner ln which we. ' 11 talk down to you here. We talk to you in terms 12 that we use every day and of course many of the 13 legal terms and processes that we go through are 14 totally foreign to you. I don't like that we have to do it this way but of course the lawyers are 16 entitled to give you some idea of the laws that 17 govern the trial of a case because you have to 18 agree of course to be bound by those. 19 And then,finally, I dislike us trying to give you a crash course on the law. My 21 position is we don't need lawyers on the jury, we 22 do need just good old citizens, that will come to 23 court and use the same good common sense that you 24 use every day in deciding the issues that you must decide. But, anyway, with those things out of the 4
1 way we will proceed. 2 How many of you have ever served on a 3 jury in a criminal case? All right. How many of 4 you have served on a jury in a capital case where the State is seeking the death penalty? 6 You ma'am? Did not? 7 A JUROR: Not the death penalty. 8 THE COURT: How many of you have been 9 questioned as perspective jurors in a capital case 10 where the State was seeking the death.. penalty?..~ 11 Anybody? 12 A JUROR: Where you fill out the 13 paperwork for? 14 THE COURT: No, sir. Like the difference in a capital case, it's not material 16 now, but you're individually examined apart from 17 all the rest. 18 Nobody then has even been questioned 19 on a capital case? All right. I ask you those questions because 21 selection if any of you have been through it you 22 understand why I say the selection of a jury in a 23 capital case is a tedious process. You read in the 24 paper often times where in some courts it takes several weeks to pick a jury. It will not take us
1 that long. We've got good lawyers here and of 2 course I like to try to get warmed up to a jury 3 panel a little bit and tell them my philosophy. I 4 believe in moving the case along consistent with, you know, the rights of everybody involved. And we 6 will move along but it still is a tedious process. 7 I'm going to take about minutes, 8 something like that, to talk with you about some 9 general principles of law. Then the lawyers are 1090 ing to do alittl e bit 0 f w0 r k a:!ti 0 n g thems e 1 v e s. ;/ > 11 Some of you will probably then be excused totally. 12 The rest of you will go to lunch.. Some of you will 13 be coming back this afternoon and some others in 14 the morning, because, if you don't know, after we get started each of you will be brought in 16 individually apart from the rest and will be 17 questioned concerning various issues. But one of 18 the main issues of course will be what your feeling 19 is on the death penalty. Because persons convicted of capital murder will be punished by life 21 imprisonment or the death penalty. 22 Years ago -- if you had served on a 23 jury years ago the jury would actually determine 24 what the punishment was, that is, life imprisonment or death, whatever it was. Now that decision is 6
1 made by me based upon answers that you give to 2 special questions that are submitted to you. But 3 we won't go into that issue right now because that 4 will be gone into individually. Each of you have filled out a 6 questionnaire here. Personally, I find the 7 questionnaire a little bit obnoxious in ways. But 8 believe me the lawyers assure me and assure you 9 that it would cut down tremendously all the amount 10 of time it takes to select a jury.:. And with that ".' 11 idea in mind and upon their honor that only a:few 12 of the issues will be delved into in more detail, 13 I'm perfectly willing to pry just a little bit in 14 order to conserve the time of all of us. We have called for trial today and 16 for the next several days, however long it takes 17 us, Anthony Shawn Medina. 18 Mr. Medina, would you stand up and 19 face the jury, please? DEFENDANT: (Complies.) 21 THE COURT: Thank you. You may have 22 a seat. 23 Mr. Medina is represented by 24 Mr. Gerry Guerinot. MR. GUERINOT: Good morning, folks. 7
1 THE COURT: And Mr. Jack Millin. 2 MR. MILLIN: Good morning. 3 THE COURT: The State is represented 4 by Mr. Steve Baldassano. MR. BALDASSANO: Good morning. 6 THE COURT: And Mr. Casey O'Brien. 7 MR. O'BRIEN: Good morning. 8 THE COURT: The indictment alleges 9 that two people were killed; one David Rodriguez 10 and Diana Rodriguez. I've introduced to you the :0 ' 11 defendant, his two attorneys, the two State's 12 attorneys. I forgot to tell you they are on the 13 staff of Johnny B. Holmes, the elected District 14 Attorney. He is charged with representing the State in all criminal proceedings in Harris 16 County. I've introduced to you the defendant, his 17 attorneys, State's attorneys, and the two people 18 who were alleged to have been killed. Is there any 19 member of the jury panel that knows any of the people that I've introduced to you in person or 21 that you think you know either David or Diana 22 Rodriguez? All right. 23 Now, we operate on a theory in the 24 court that when you're asked a question and you don't make a response, well, we accept your silence 8
1 as being a negative answer. So, therefore, we 2 start off even in this matter. 3 The defendant stands charged with the 4 offense of capital murder. The indictment alleges that in Harris County, Texas, on or about January 6 1, 1996, he did then and there unlawfully, during 7 the course of the same criminal transaction, 8 intentionally and knowingly cause the death of 9 David Rodriguez by shooting him with a deadly 10 weapon, namely, a firearm, and intentionally and. '" 11 knowingly causing the death of Diana Rodriguez by 12 shooting her with a deadly weapon, namely, a 13 firearm. 14 Murder is committed in many ways, but just for the purpose of what we're talking about 16 here today murder is committed by one who 17 intentionally or knowingly causes the death of 18 another individual. Murder becomes capital murder 19 in many ways, quite a few ways, but we're only concerned with one way in this case, and that is 21 whether the murder was committed intentionally or 22 knowingly and more than one person was killed in 23 the same criminal transaction. 24 As you know in our democratic form of government we have three branches of government. 9
1 The legislature passes laws that we try to apply 2 here in the courtroom and you of course you are 3 charged with the law. And the legislature has said 4 if the person commits murder, that ls, intentionally or knowingly cause the death of 6 another person and in the same course of that same 7 criminal transaction causes the death of two or 8 more persons, then it becomes capital murder. 9 Those of you who have served as a 10 juror in criminal cases know that at the end - and 11 you-all have to bear with me. I'm talking mainly 12 to those people who have not had the privilege of 13 sitting as a juror in a criminal case. At the end 14 of the case I'll give to you a written charge that includes all of the law that governs the trial of 16 this case. So while I'm going over a little bit of 17 it with you, you don't have to worry about it now 18 because you'll get it in writing at the appropriate 19 time. But many terms will be defined for you in that charge. 21 You heard me say the indictment has 22 alleged that the murders were committed 23 intentionally and knowingly. Those terms are 24 defined. Basically intentionally is when someone has a conscious objective or desire to engage in 10
1 the conduct or cause the result. Knowingly is a 2 lesser mens rea or requirement than that, and that 3 is that's when one is aware of the nature of his 4 conduct or that the circumstances exist. Of course those issues will be I'm sure at the forefront in 6 this case as it is in many. 7 I do not know whether it would arise 8 or not in the trial of this case but there is a 9 provision the law passed by the legislature 10 concerning transferred intent. ~~e best example 11 that I could give that could be transferred intent 12 is where a person shoots at A, for instance, and 13 hits B, and kills him. Not intending to kill B, 14 but the law presumes that of course having intended to do one act and another act results therefrom in 16 carrying the intent he's just as guilty as if he 17 had intended to kill B. 18 As I say, that mayor may not arise 19 with this case. I don't know. I told you a little bit ago that we kind of give a crash course on the 21 law. It's not to, at this point, to try to 22 instruct you on what all the law is, but it is to 23 find out if a person has closed their mind to a 24 provision of the law that either the State or defense is entitled to rely upon in the trial of 11
1 this case, or in any case. 2 Obviously, if a juror cannot abide by 3 a provision of the law that means, well, then they 4 can't be a fair juror. So when we get down to the individual examination of you, the lawyers will 10 6 talk to you along that line. Of course you will be 7 expected to tell them what your feelings are in 8 that respect. Is there once in a while we have 9 citizens coming in for jury duty who because of religious convictions or for whateyer reason just '".:"'" 11 cannot sit in judgment of their fellow man. I'm 12 not talking about the death penaltj issue, I'm just 13 talking about is there anybody in this group who 14 because of religious feelings or otherwise just cannot sit in judgment of a fellow person? If so, 16 please raise your hand. All right. Now, as I'll 17 come to you - please, your number is? 18 A JUROR: 16. 19 THE COURT: 16? A JUROR: Yes, Slr. 21 THE COURT: Are you telling me that 22 you understood me to say I'm not talking about 23 the death penalty issue. 24 A JUROR: Yes, sir. THE COURT: But for whatever reason 12
1 you do not feel that you as a person can sit in 2 judgment on anothe~ fellow citizen being charged 3 with crime? 4 A JUROR: Either crime or anything. THE COURT: And is there no question 6 in your mind about it? 7 A JUROR: No, sir. 8 THE COURT: All right. 9 And your number? 10 THE COURT: 38., 11 THE COURT: 38. Again, make sure I 12 understand you, we're not talking about the death 13 penalty issue, we're talking about you just do not 14 feel that you fit in the category of persons who can sit in judgment on fellow man? Nos. 16 and 38. 16 Is there anybody else? 17 All right. Any of you have served as 18 a juror in civil cases before a civil case 19 before? I always like to tell you that serving as a juror in a criminal case is not really any 21 different than any other type case. Admittedly 22 there are different rules that apply and govern the 23 trial of a criminal case, but as long as we know 24 and understand them, then you should not have any difficulty. And four rules that really make the 13
1 trial of a criminal case different are that both 2 the United States Constitution and the Texas 3 Constitution have been there ever since we first 4 adopted our constitutions. The first one is of course the Constitution provides that no person may 6 be brought to trial for a felony offense except on 7 indictment of a Grand Jury. 8 Have any of you ever served as a 9 juror Grand Juror? Okay. Nobody. It's not the 10 function of a Grand Jury to dete~~ine whether 11 someone's guilty or not guilty. Their function is 12 to determine according to the law by requisite 13 number whether there is - the legal term is 14 probable cause - to believe that there is sufficient evidence so that the defendant should be 16 brought to trial should stand trial. If they 17 determine that, they return an indictment; and the 18 function of an indictment is for me a law question. 19 It's not doesn't have anything to do with you as petit jurors who come in to sit in judgment and 21 determine the issue of guilt/innocence. It forces 22 the defendant into trial, into this trial 23 courtroom, to stand trial, it advises him of what 24 he's accused of, in order that he may prepare a defense and his lawyers know what he is accused of, 14-2P8~
1 prepare a defense. 2 It puts the State on notice of that 3 which they must prove in order to secure a 4 conviction. I give you all of this to give you the bottom line and the most important thing is and 6 that is the indictment is no evidence of the 7 defendant's guilt. It cannot be considered by you 8 for any purpose whatsoever. I say that's an issue 9 for me, not for you. So the fact that the 10 defendant has been indicted is jus:t of no concern -" 11 to you as jurors -- petit jurors. 12 The second provision of the 13 Constitution that governs the trial of a criminal 14 case is that all persons who have been accused of crime are presumed to be innocent. Now, that 16 doesn't mean that the defendant is innocent, 17 doesn't mean he didn't do it. But it does mean 18 that he gets to start off being presumed to be 19 innocent, presumed to be not guilty; because the burden is on the State to prove that he did it. He 21 doesn't have to prove anything. He can sit here 22 and I'm trying to -- jumping ahead because the last 23 three of these Constitutional provisions fit hand 24 in glove, side by side. The third one is burden of proof.
1 I've already said the State has the burden of proof 2 to prove that the person is guilty. If they don't 3 prove the person guilty, then the defendant being 4 presumed to be innocent is entitled to be found not guilty. It would be your obligation under the law 6 if the State does not prove him guilty to find him 7 not guilty. Because he's still presumed to be not 8 guilty. 9 Until a few years ago we trial judges 10 did not have to define for the ju~y what the term..,.,.,. 11 beyond a reasonable doubt means, but th~ court in 12 Austin said, well, citizens are not cable of 13 understanding what that means so they devised a 14 definition and we give it. I'm not going to go into it. I don't think it really adds very much to 16 what common understanding of the term really is. 17 But, anyway, that brings up the fourth and final 18 Constitutional right that protects all the persons 19 who have been accused of crime. And that's whether that person's charged with running a red light, 21 speeding I capital murder l burglaryi rape l whatever l 22 it applies to everybodyi and that is the failure to 23 testify. 24 This is the one provision that probably causes citizens morel shall we sayi 16
1 problems than any other. We're all human. We'd 2 like to hear both sides to a story before we have 3 to make a decision. But a criminal trial just does 4 not necessarily work that way. I don't know whether Mr. Medina is going to testify or not, and 6 I don't care. And you ought to feel exactly the 7 same way because he's presumed to be innocent. 8 State has the burden of proof. He doesn't have to 9 prove he's not guilty. So if you ask the defense 10 lawyers right now, "Well, is Mr.. Medina... going to, 11 testify?" I'm sure they would say, II We don't' 12 know. We'll wait until the State rests its case. 13 Then we'll see whether we want to call him as a 14 witness." They mayor may not. The defendant is a competent witness in his own behalf. And if he 16 takes the stand, he is subject to the same rules 17 that all other witnesses are subject to, 18 cross-examination and everything. 19 But the State cannot call him as a witness and whether he testifies you can rest 21 assured that the lawyers representing him at the 22 appropriate time will make that decision. But do I 23 have the commitment of all of you at this time that 24 if the defendant refuses to testify, that you will follow my instructions on the law and not hold that 17
1 against him for any purpose whatsoever? If there's 2 somebody that cannot follow the law in that regard, 3 let me have your hand, please. All right. I think 4 that probably - that see there's so many issues that we go into on individual questions that I 6 think that covers the gen~ral areas of the law that 7 I wanted to kind of break the ice with you, if you 8 will, and chat with you about a little bit. 9 Now, I'm going to ask you-all, 10 talking in those terms that I t a I k.e din, have I " 11 confused you sufficiently that you've got any' 12 questions of me? Please raise your hand if so and 13 ask me, because we'll be steps ahead if we do. 14 (Discussion with the lawyers.) THE COURT: Members of the jury, it 16 will be just a few minutes and then we will know 17 exactly where we are. If you-all will sit tight, 18 please, I'm going to get the lawyers back here in a 19 few minutes and we'll see where we are. We'll be back with you. 21 (Brief court recess.) 22 THE COURT: All right. Members of 23 the jury panel, I'm going to call you by number 24 rather than name again, that is much easier for the court reporter and everybody else. Stand up, 18
1 No.2, No.3, No. 16, No. 38, No. 13, No., 2 No. 17, No. 18, No. 39, and No. 40. You-all are 3 excused. If you will stand out in the hallway just 4 a minute, please, the clerk will bring out your certificate for employment purposes, if it's 6 needed. Thank you very much for being here. And 7 as soon as you get your certificate, you may go on 8 your way. That's finished up your jury service on 9 this jury call. All right. Through No. 10. 10 That's through you. Your number is? 11 A JUROR: 12. 12 THE COURT: Two were excused ahead of 13 you. You 10 people are excused to go to lunch. Be 14 back here at 1:. You are in the old fire station at, what, 1302 Prairie Preston, th floor. All 16 right. 17 A JUROR: What did you say? 1 18 through 12? 19 THE COURT: Yes, ma'am. All of you. You first 10 people here. You-all be back. 21 A JUROR: 10 people? 22 THE COURT: Well, 10 people, it goes 23 through No. 12. You-all go on and get you a 24 sandwich or something to eat, whatever. Be back here at 1:. All right. I'm trying my best to 19
1 A JUROR: 310 2 A JUROR: 3 3 A JUROR: 330 4 A JUROR: 340 A JUROR: 30 6 A JUROR: 360 7 A JUROR: 370 8 THE COURT: You 10 people please be 9 back here at 9:00 o'clock on Tuesday morning. 10 Excuse me. Wednesday morningo 9 : :0 0,c 0' c 1 0 c k 0 n 11 Wednesday morning. All right? Now, if you-all 12 will - you can please be on time, because we will 13 get started at 9:00 o'clock. If we're actually in 14 the process of if you get here and we're already questioning a prospective juror, please don't come 16 in the courtroom, just wait outside and I'll 17 probably let some of you, if you want to, those on 18 down the list, do some other things downtown if you 19 want to. But we have to have you available. All right? Is there anybody got any questions? 21 A JUROR: What's the room number? 22 THE COURT: This is it's on the 23 fifth floor, called the project court, and probably 24 my name is on the door outside there, Sam Robertson. If you'll just remember the name Sam 21
1 Robertson, and they'll be able to tell you where 2 you are. 3. MR. O'BRIEN: Doesn't have a room 4 number. THE COURT: Thanks. This is called 6 the project court. 7 A JUROR: It will be this same room? 8 THE COURT: This same room. Yes, 9 ma'am. 10 THE BAILIFF: Room. :12. ~ :',. 11 THE COURT: Room 12. Does everybody 12 have a pencil to write that down? 13 A JUROR: What time? 14 THE COURT: 9:00 o'clock. A JUROR: This is Tuesday morning? 16 THE COURT: You will be here in the 17 morning, Tuesday, tomorrow. And 10 the last 10 18 will be here at 9:00 o'clock on Wednesday morning. 19 All right. Any questions? You'll never know how many problems it will create now if you don't get 21 here on time. So please work with us. will you? 22 Thank you, very, very, much. 23 (Lunch Recess 12:29 1: p.m.) 24 MR. O'BRIEN: We have agreements, Judge, on No.1. 22 p.:.. C cr "r'
1 THE COURT: No.1 is excused. 2 MR. O'BRIEN: Yes, sir. No.. 3 THE COURT: Okay. So No.2 will be 4 our first one. MR. O'BRIEN: No.2 is already gone. 6 MR. GUERINOT: First one will be 7 No. 4, Margie Nance. 8 THE COURT: 3 is excused. No.4 will 9 be our first one. 10 MR. O'BRIEN: Yes,. s;i.r. 11 THE COURT: All right. No., 12 you-all. 13 MR. O'BRIEN: Agreed on, and No.6 14 we're agreed on. THE COURT: NO.6 is excused? 16 MR. O'BRIEN: Yes, sir. 17 THE COURT: All right. 18 MR. O'BRIEN: Nos. 11, and 12, we've 19 agreed on. So we've got 4,7,9,10, and 14. THE COURT: We've got 4, 7. How 21 about 8? 22 MR. BALDASSANO: 8's in there. We 23 have 4,7,8,9, and 10. 24 THE COURT: All right. That was 4, 7, 8, 9, and 10. All right. Both sides ready 23
1 then? 2 MR. GUERINOT: Judge, can we put on 3 the record that we've excused to those four or five 4 people that we just noted and for the record the defense agrees to it? 6 And do you also agree, Mr. Medina? 7 DEFENDANT: Yes. 8 THE COURT: Let me make sure I've got 9 the additional ones, NO.. 10 MR. GUERINOT: Jud~~ j can we approach 11 the bench real quick? 12 THE COURT: Nos., 6. 13 (Discussion at the bench.) 14 THE COURT: Mr. Medina, prior to lunch there was an agrement to let certain 16 perspective jurors go. You know the ones I 17 excused? 18 DEFENDANT: Yes, sir. 19 THE COURT: That's agreeable with you? 21 DEFENDANT: Yes, sir. 22 THE COURT: That is Nos. 2, 3, 13, 23, 16, 18, 38, 39, and 40, according to my 24 records, right? All right. If you'll bring in these others then 24.t :
1 THE COURT: Are both sides ready to 2 proceed? 3 MR. BALDASSANO: State's ready, 4 Judge. MR. GUERINOT: Defense is ready, 6 Judge. 7 THE COURT: Touch the mike. Is it 8 on? 9 MR. GUERINOT: Yes, Slr. It's on. 10 11 12 13 14 16 17 18 19 21 22 23 24 26 "'... ;.. -.._!
1 JUROR NO.4, MARGIE LAMBRIGHT NANCE, 2 THE COURT: For the record, you are 3 Margie Lambright Nance? 4 MS. NANCE: Yes. THE COURT: Ms. Nance, if you'll keep 6 your voice up, please, so Ms. Oballe can hear 7 everything that you say and I can hear everything 8 you say. And just be frank with us here and with 9 the lawyers, please, and the questions that they 10 ask you. I would say this: If yo~ - don't be 11 bashful. If you have a question about anything 12 that's asked you, well, you just t~ll them to 13 restate it or clarify the issue. Okay? 14 MS. NANCE: All right. THE COURT: I took a few minutes time 16 with you this morning and discussed various 17 principles of law. Now that you've had time to 18 think about that a few minutes, do you have any 19 questions about any of the law that I went over with you that maybe I could clarify for you 21 individually? 22 MS. NANCE:.No. I don't think so. 23 THE COURT: All right. I told you 24 the defendant is charged with the offense of capital murder. 27
1 probability that the defendant would commit 2 criminal acts of violence that would constitute a 3 continuing threat to society? 4 If you're selected as a member of the jury, you and the other jurors have to answer that 6 question yes or no. 7 The second question: Do you find 8 that taking into consideration all of the evidence, 9 including the circumstances of the offense, the 10 defendant's character and background, and the? 11 personal moral culpability of the defendant, there 12 is a sufficient mitigating circumstance or 13 circumstances to warrant that a sentence of life 14 imprisonment rather than a death sentence be imposed? 16 Of course if you're selected on the 17 jury, then you and the jurors have to answer that 18 question. If you answer the first question yes, 19 and the second question no, why then of course I'll assess the defendant's punishment at death. 21 Now, you told me you have no 22 conscientious scruples against the infliction of 23 death as a punishment for crime in a proper case. 24 I take by your answer then that you could look at those questions and answer them on the basis of the 29
1 evidence you have heard in the way that you thought 2 the evidence dictated they be answered without 3 attempting to answer them one way or the other so 4 that a specific punishment would be assessed. Do you understand what I'm getting at? 6 MS. NANCE: Repeat it. 7 THE COURT: Well, let me put it this 8 way: Would you answer those questions based upon 9 the evidence you hear and you believe that they 10 should be answered from the evidence rather than, 11 trying to answer them in a certain way to assure a 12 desired result? 13 MS. NANCE: Yes. 14 THE COURT: I believe that's all. I'm going to turn you over to the lawyers and let 16 them ask you some questions, and we'll move along. 17 18 19 21 22 23 24 30 1 :
1 2 MR. BALDASSANO: I'm going to start off. My name is Steve Baldassano. I represent the 3 4 State of Texas along with Casey O'Brien here. really what we want to do is find out how you And really feel about the death penalty. Capital 6 7 8 9 murder is the charge, but like the Judge said, that doesn't mean the death penalty necessarily. Somebody could be convicted and then the punishment is either life or death, depending on how the 10 11 jurors answer that question. actual sentence 1S automatic. And then the Judge's 12 If the jury answers the questions a 13 certain way he has to. He has no authority, one 14 way or the other. He must impose the death penalty. And if they're answered the other way, he 16 must impose a life sentence. Do you understand 17 that? Why don't you give us, in your own words, 18 19 21 how you feel about being down here on this type of case? MS. NANCE: Well, I really didn't feel like I wanted to come. It's kind of an 22 uncomfortable feeling in a situation like this. 23 24 out it was a MR. BALDASSANO: When did you find capital murder case? MS. NANCE: When I got here. 31
1 MR. BALDASSANO: This morning'? 2 MS. NANCE: Uh-huh. 3 MR. BALDASSANO: Did you get kind of 4 a pit in your stomach feel or did you think: This is the first time. I wish I could have started off 10 6 in a shoplifting case or something? 7 MS. NANCE: I've been on juries 8 before but not a capital murder, not like that. 9 MR. BALDASSANO: How do you feel, in your own words, about capital punishment,. - that is, 11 the death penalty? 12 MS. NANCE: It would have to be 13 somebody that was - that there would be absolutely 14 no question, far as I'm concerned. MR. BALDASSANO: Okay. No questions 16 as to whether the person did it? 17 MS. NANCE: Uh-huh. 18 MR. BALDASSANO: Now, you 19 understand - and I think the Judge touched on this - beyond a reasonable doubt is a standard in 21 traffic tickets all the way up to capital murder. 22 Now, some people say, well, you know, capital 23 murder is different, like you just said. You would 24 have to have no question at all in your mind. But the standard of proof is beyond a reasonable doubt. 32
1 That is, you have to look at all the evidence and 2 then determine in your mind whether or not you have 3 a reasonable doubt, and if you do, you find the 4 person not guilty. But if you have no reasonable doubt, 6 then you should find the person guilty. Now, some 7 people say, hey, listen, I need to be positive 8 beyond all doubt before I could sentence somebody 9 or find somebody guilty of capital murder. How do 10 you feel? 11 MS. NANCE: I think I would have to 12 be convinced beyond a reasonable doubt. 13 MR. BALDASSANO: Would you need more 14 than that in a capital murder case? MS. NANCE: Well, it would have to be 16 pretty clear that the evidence would have to be 17 very clear that the person really did commit the 18 crime. 19 MR. BALDASSANO: Okay. Could you follow the Judge's ruling if he says the standard 21 is not pretty clear but is beyond a reasonable 22 doubt? Some people say, I need to know beyond all 23 doubt. I can't live with myself. I couldn't sleep 24 at night unless I knew beyond all doubt that the person was guilty or I couldn't do it. If that's 33
1 the answer, that's okay, but I just wanted to know 2 if that's how you feel. 3 MS. NANCE: Yes. That's about how I 4 feel. MR. BALDASSANO: You would have to 10 6 know beyond all doubt? 7 MS. NANCE: Yes. 8 MR. BALDASSANO: Is that correct? 9 MS. NANCE: Correct. MR. BALDASSANO: Wha:t kind of "- / 11 evidence would convince you beyond all doubt? 12 MS. NANCE: Well, I'm not really 13 sure, not having been in that position before, what 14 it would take. MR. BALDASSANO: Some people say the 16 only way you can know something beyond all doubt is 17 to have actually seen it yourself. You were there 18 or there's a videotape of the whole thing and you 19 watch the tape and say, hey, now I can see and now I believe beyond all doubt. 21 MS. NANCE: Yeah. That would be 22 convincing. 23 MR. BALDASSANO: You see that's not 24 the typical case? MS. NANCE: No, of course not. 34
1 MR. BALDASSANO: Would you have to 2 have been there or watch a videotape before you 3 could find somebody guilty of capital murder beyond 4 all doubt? It's okay if you feel that way. MS. NANCE: Well, does it seem 6 reasonable that there might be a videotape of 7 something like that? But it would have to be 8 pretty close to that. 9 MR. BALDASSANO: Okay. And that's 10 okay. And some people say, hey, listen, it's not. -.~, 11 that you could fish somebody out of the prisort, 12 you're free, we made a mistake, but the person's 13 dead. So some people feel that way. Is that how 14 you feel? That you need more than beyond a reasonable doubt like the standard in a traffic 16 ticket and shoplifting and DWI in a capital murder 17 case? 18 MS. NANCE: Yes. 19 MR. BALDASSANO: Are you sure about that? I don't want to put words in your mouth. 21 Are you sure you feel that way? 22 MS. NANCE: Yes. It would be very 23 hard to assess something that causes somebody to 24 have a death penalty for anything. MR. BALDASSANO: Well, let's get off 3 - I :; i. - :.'..: r.
1 the standard of proof and let me talk to you about 2 the death penalty in general. How do you feel 3 about it as far as what it assures. Do you think 4 it has a valid purpose? MS. NANCE: In certain instances, 6 yes. 7 MR. BALDASSANO: Do you understand 8 that - well, you might not, because we haven't 9 been over any of this. But it's not just like a 10 cruel case, like, if I waited outside somebody's 11 house and I can plan it for a week, the~ walk 'out 12 and I shoot them times. That's' not capital 13 murder. Capital murder comes when there's a murder 14 plus something else. Like, somebody kills a police officer on duty or fireman on duty or they do it in 16 the course of a robbery or kidnapping. 17 The allegation in the indictment is 18 killing more than one person at a time. If you 19 intentionally or knowingly kill more than one person at a time, that's capital murder. How do 21 you feel about that? Do you think that should be 22 capital murder or you don't really know? 23 MS. NANCE: I don't really know. I 24 don't know. MR. BALDASSANO: If you were in 36.I.
1 2 3 charge of Texas or the country or you're the queen, you're the queen of Texas, and you said you were allowed to make the rules, would you make killing 4 more than one person at a time a capital offense or 6 would you just leave it as a murder? regular first degree 7 8 9 10 11 MS. NANCE: I don't know that I will place any special distinction on whether it was one or more persons. MR. BALDASSANO: How long have. you felt the way you feel about capital murder? 12 Has it been all your life? Where you think - I 13 think you answered the questions I'm in favor of 14 capital punishment except in a few cases where it 16 may not be appropriate: MS. NANCE: Do you feel that way? Yes. 17 18 felt that way? MR. BALDASSANO: How long have you Your whole life or recently a case 19 21 come about and reading the paper or the last couple of years or? MS. NANCE: I don't know about all my 22 23 24 life, but I things, yes. suppose since I've become aware of such MR. BALDASSANO: Have you ever had a debate with anyone in your family about capital 37
1 punishment or friends or workers or anything? 2 MS. NANCE: Huh-uh. 3 MR. BALDASSANO: Now, you put down in 4 your questionnaire that you think the criminal laws are too lenient. What do you mean by that? 6 MS. NANCE: That when people when 7 someone does something that 1S against the law, 8 they're not punished for it for one reason or 9 another, that they just weren't convicted of it. 10 MR. BALDASSANO: On another page you 11 have listed that you worked as a juror in a murder 12 case about years ago, correct? 13 MS. NANCE: Yes. It's been about 14 that long. MR. BALDASSANO: And what was the 16 verdict in that casej guilty or not guilty? 17 MS. NANCE: Guilty. 18 MR. BALDASSANO: Now, you had put 19 down that 1n that case you had concern for the defendant's family. What do you mean by that? 21 MS. NANCE: His wife and children and 22 she had never worked. 23 MR. BALDASSANO: Okay. How about the 24 victim's family in -- I mean, did you feel concerned about that or was most of the focus on 38
1 what's going to happen to the defendant's family 2 because he was found guilty? 3 MS. NANCE: Well, I don't know that 4 it was brought out, anything about the defendant - the victim's family. 6 MR. BALDASSANO: Okay. 7 MS. NANCE: But the defendant's 8 family was there in the courtroom. 9 MR. BALDASSANO: And was there any 10 did that have any effect in your mind or your 11 verdict or sentence that might impact the 12 defendant's family a certain way? Did you give him 13 less time because you felt sorry for the wife or 14 more time because you thought of the kids or anything like that? 16 MS. NANCE: No. 17 MR. BALDASSANO: So it had no bearing 18 one way or the other? 19 MS. NANCE: No. MR. BALDASSANO: You just felt in 21 your heart that it's too bad that they have to 22 suffer for what he did? 23 MS. NANCE: Right. 24 MR. BALDASSANO: Okay. There's one question here regarding - well, I'll get to that i'":.' 39
1 later. Criminal acts of violence in the future. 2 Going back briefly to beyond a reasonable doubt, I 3 want to just get that down a little bit more, and 4 this is related to the guilty part of the case. And I think the Judge had told you there's a legal 6 definition of beyond a reasonable doubt, but you 7 have to follow - and I think it's kind of clear 8 that you told me that beyond a reasonable doubt 9 you'll need something more than that in a capital 10 case. That how you feel? 11 MS. NANCE: Yes. 12 MR. BALDASSANO: Let me talk to you a 13 little bit about some other issues in the case. 14 First of all, in Texas voluntarily intoxication is no defense. That is, you can't drink a lot of beer 16 or wine or whatever and go out and kill somebody 17 and say, hey, I was drunk. I didn't want to do 18 it. Do you agree with that? 19 MS. NANCE: Yes. MR. BALDASSANO: Do you generally 21 agree that people are responsible for what they 22 do? 23 MS. NANCE: Yes. 24 MR. BALDASSANO: Also another issue I want to talk to you about is the defendant's age. 40 ":t" "f'
1 You can see here from looking at him that he's a 2 relatively young man. Some jurors think or feel 3 maybe when they walk into the courtroom kind of 4 like you watch Dick Tracy or any of these Hollywood movies, a criminal is going to look a certain way 6 or person that's accused is going to look a certain 7 way. And they come in and see that the person's 8 14,, 16, 17 years old. My question is I want 9 to make sure I want to ask you whether or not that 10 would effect your verdict inany~ay? 11 First on guilt. That is, some people 12 feel, you know, certain age people shouldn't be 13 punished yet or be punished less severely. Other 14 people, whenever you commit the crime, that's the time to pay the price. You know, if you're too 16 old, that's too bad. If you're in middle age, 17 that's fine; and if you're young, that's fine too. 18 It's just when you do it. How do you feel? 19 MS. NANCE: Age should not enter into it, I think. 21 MR. BALDASSANO: Now, on punishment 22 that might be something that you want to consider. 23 Some people consider it aggravating because the 24 person's young and they might do it again and they have more time to do it. Other people might think 41
1 it's mitigating because, again, because of their 2 age they haven't lived enough or something like 3 that. You could consider it on punishment if it's 4 important to you, but on guilt the law says if you're 17 or over, your, treated as an adult. Do 10 6 you agree with that? 7 MS. NANCE: Yes. 8 MR. BALDASSANO: I'm going to just 9 share with you a rough definition of beyond a reasonable doubt. It's a doubt based on reason and - " 11 common sense, the kind of doubt that a reasonable 12 person would have in the most important of their 13 own affairs. It would cause you to hesitate in 14 making a decision in your own affairs. That's reasonable doubt. Again, that's the standard that 16 applies across the board and I don't want to be 17 repetitive, but I want to kind of nail this one 18 thing down and I'll stop talking about it. You 19 would feel more comfortable and you will require the State to prove it beyond that? That is, more 21 evidence than beyond a reasonable doubt in a 22 capital murder case before you could convict 23 somebody? 24 MS. NANCE: Yes. MR. BALDASSANO: Judge, we will have 42
1 a challenge based on that. 2 MR. GUERINOT: Judge, may I talk to 3 her just a moment? 4 THE COURT: Yes, sir. MR. GUERINOT: Ms. Nance, my name is 6 Gerry Guerinot, and I represent Mr. Medina. The 7 problem with the definition that Steve just read to 8 you is that it doesn't include all of the things 9 that the Judge will tell you. What it is is a 10 doubt based on reason and common sense after a fair 11 and impartial consideration of all of the evidence. 12 A reasonable doubt is that kind of doubt that would 13 cause an ordinary person to hesitate in the most 14 important of their own affairs. That's what the standard of proof is in the State of Texas. 16 MS. NANCE: I understand. 17 MR. GUERINOT: That's beyond a 18 reasonable doubt. The reason we have it for all 19 criminal matters is because we can't have one for one thing and one for another. Would you agree 21 with me that you - if you were present when 22 something happened, you would be a witness either 23 for the State or for the defense? 24 MS. NANCE: Right. MR. GUERINOT: So, therefore, you 43 :'"'., i
1 couldn't be a juror? 2 MS. NANCE: Uh-huh. 3 MR. GUERINOT: Agree with me there? 4 MS. NANCE: Right. MR. GUERINOT: And I need to have you 6 answer yes or no so she can take it down. 7 MS. NANCE: Yes. 8 MR. GUERINOT: Okay. Therefore, when 9 we say here's the burden of proof that the State 10 has, we don't guess people guilty.. We don't think 11 they might be guilty. Well, you know they're' 12 almost there; none of that. It's in my - I think 13 of boiling it all down do you feel comfortable that 14 the State has proved its case to you and in such a way that you could say guilty, and if not, you'd 16 say not guilty? 17 MS. NANCE: Yes. 18 MR. GUERINOT: Do you have any 19 problem with that kind of standard? MS. NANCE: No. 21 MR. GUERINOT: See, when we throw in 22 traffic tickets, we think anybody can get one. 23 Over here we have capital murder, not everybody's 24 ever going to be convicted of capital murder. Can you agree with me there? 44
1 MS. NANCE: Yes. 2 MR. GUERINOT: But we still have to 3 have a uniform and universal definition of beyond a 4 reasonable doubt that we can plug in to all of these cases. It still boils down to your good old 6 common sense, has the State proved its case and am 7 I comfortable with it? 8 MS. NANCE: Uh-huh. 9 MR. GUERINOT: Would you require more 10 than that or could you live with that kind of a 11 definition? 12 MS. NANCE: Well, I think probably I 13 could. Yeah. 14 MR. GUERINOT: See, we can't have the problem with us lawyers is and, you know, 16 I'm sure you've never gone through this kind of 17 deal. The last time you were here you probably sat 18 out there with your fellow jurors and you kind of 19 get a warm fuzzy feeling sitting together. And now you're all alone and these two guys are yakking at 21 you, and there's a man sitting over here telling 22 you what's going on,she's taking down every word. 23 We can't have well, I think I can, maybe I 24 could. I know that's the way we talk every day. You know, when you're having a cup of coffee with a 4 ",. 'I'... r-,- "":: ';i.,,
1 friend of yours or something, but the bottom line 2 is: Can you or can't you? Can you live with that 3 definition of beyond a reasonable doubt and hold 4 the State to that burden and not require more or can't you? 6 MS. NANCE: Yes. I think I could. 7 MR. GUERINOT: Well, if you would 8 say, yes, I c a n, instead of, yes, I think I c a n : 9 or, no, I can't, instead of, no, I don't think I 10 can, then we got there., 11 THE COURT: We are spending a whole 12 lot of time on the term beyond a reasonable doubt. 13 MS. NANCE: Uh-huh. 14 THE COURT: Of course that is the test that we use in all the cases. I don't care 16 what it is, if it's a crime to run a red light, 17 that must be proven beyond a reasonable doubt. 18 That's the test we use in theft, robbery, rape, 19 murder, capital murder. There's nothing magic about it. While it seems kind of logical to say 21 I'll require more proof before I could find 22 somebody guilty of capital murder, the factor 23 remains that the test is the same in all cases. 24 Can you follow the law as I give it to you and require the State to prove the defendant 46
1 guilty beyond a reasonable doubt, and if they 2 3 4 haven't done so can you find him not guilty? MS. NANCE: Yes. THE COURT: All right. Go ahead. MR. GUERINOT: I have no further 6 7 8 9 10 11 12 13 14 16 17 18 19 21 22 23 24 questions. THE COURT: Overruled. Denied. MR. GUERINOT: Thank you. 47
1 MR. BALDASSANO: Okay. Now, I have a 2 problem, because you sort of went the other way, 3 but I understand why. And I want to - you know, I 4 have to know how you feel. Let me ask you this: The State in a capital murder case or any case, for 6 that matter, can prove a case beyond a reasonable 7 doubt with one witness, for example. If the jury 8 believes that that one witness has supplied enough 9 information to them to ind the person on trial 10 guilty beyond a reasonable doubt..:.the reason I'm 11 asking this is it seems like you're on the fence 12 about this beyond a reasonable doubt stuff because 13 of a traffic ticket. 14 And I think Mr. Guerinot was right saying, you know, we have to have one standard to 16 plug in but that doesn't mean you have to believe 17 in it. It might be for our convenience, doesn't 18 mean you have to buy into that right now once you 19 take the oath as a juror you do, and we want to 2D make sure that you do not have any feelings that 21 are in conflict with the law. Because once you get 22 in the jury room you have to follow the law whether 23 you like it or not. Do you understand? 24 MS. NANCE: Yes. MR. BALDASSANO: Could you, if there 48 J..:( (~1 i :,,': ;
1 was a case where there was one witness and that one 2 witness supplied you with information beyond a 3 reasonable doubt in a capital murder case, could 4 you find somebody guilty or would you need more? THE COURT: Well, that's not a proper 6 question. You're putting that last phrase on it 7 and I'm not going to let that go. 8 MR. BALDASSANO: Well, Judge, may I 9 ask about one witness testimony? 10 THE COURT: All right, sir. 11 MR. BALDASSANO: Okay. Could you 12 find somebody guilty of capital murder based on the 13 testimony of one witness if you believe the witness 14 beyond a reasonable doubt? MS. NANCE: Yes. 16 MR. BALDASSANO: Now, how about in a 17 case where there's no eyewitnesses and there's just 18 circumstantial evidence? Could you find somebody 19 guilty beyond a reasonable doubt based on a capital murder case? 21 THE COURT: Okay. Well, now, that 22 question is asked, let me tell you this. Of course 23 there's really three kinds of evidence. There's 24 eyewitness testimony, be somebody that saw what happened and they come in here and tell you.,... :;..:,:. "- -' -._' 49
1 Another type of evidence is circumstances. You see 2 two people enter a room and close the door and hear 3 a shot and one person comes out and you go in the 4 room and there's a dead person there. You look around and there's no other doors, no other 6 windows, no nothing. That would be a type of 7 circumstantial evidence. You see? Another type of 8 evidence would be physical or photograph evidence, 9 something such as that. Now, what he's asking you 10 do you have any problem with circumstantial 11 evidence, fitting all circumstances together to see 12 if they make you conclude beyond a reasonable doubt 13 that the defendant is guilty? 14 MS. NANCE: Yes. THE COURT: You have problems with 16 circumstantial evidence? 17 MS. NANCE: Yes. 18 THE COURT: Okay. 19 Go ahead. MR. BALDASSANO: I'm sorry. You do 21 have problems with that? 22 MS. NANCE: Yes. 23 MR. BALDASSANO: Would you say that 24 if you have problems with circumstantial evidence 1 1 m just thinking that then would you 0
1 agree with this: That you would need an eyewitness 2 in a capital murder case before you could find 3 somebody guilty beyond a reasonable doubt? 4 MS. NANCE: Yes, I would. MR. BALDASSANO: I'm going to call 10 6 your attention to the jury form that you filled out 7 and it says: Looking at their past do you think 8 it's possible to tell whether a person will 9 probably commit acts of violence in the future? And you put no. Do you feel that you can't really, 11 predict somebody's acts in the future based on what 12 they did in the past? Explain that. 13 MS. NANCE: No. I don't feel like 14 you could predict what they will do in the future on what they did in the past. 16 MR. BALDASSANO; Okay. Ma'am, I'm 17 going to call your attention to that question on 18 top, the one to your left. It says if a jury finds 19 the defendant guilty of capital murder this would be asked, these two questions. The first one 21 is whether or not they could find from the evidence 22 beyond a reasonable doubt there's a probability the 23 defendant will commit criminal acts of violence 24 that will constitute a continuing threat to society. 1 -I". :'