Filed Lee County Clerk of Courts-Criminal Division 1 • 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT 2 IN AND FOR LEE COUNTY, FLORIDA CRIMINAL ACTION 3 CASE NO. 09-CF-019670-A 4 5 VOLUME II OF II PAGES 198-397 STATE OF FLORIDA, 6 Plaintiff, 7 -vs8 9 10 MARY FULLER NOWLING, Defendant. I 11 12 13 TRANSCRIPT OF PROCEEDINGS 14 15 16 Before the Honorable EDWARD J. VOLZ, 17 Cou rt Judge, 18 Lee County J ustic e Ce nter, 19 23rd and 24th days of March, JR., Circuit in the above-styled action held in the Fort Myers, Florida, on the 2010. 20 21 22 23 t. 24 25 MARTINA REPORTING SERVICES 2069 First Street, Suite 201 Fort Myers, Florida 33901 (239) 334-6545 FAX (239) 332 - 2913 2 • 1 A P P E A R A N C E S 2 3 4 5 ELIZABETH FITZGERALD, ASSISTANT STATE ATTORNEY OFFICE OF THE STATE ATTORNEY, 20th JUDICIAL CIRCUIT 2000 Main Street, 6th Floor Fort Myers, Florida 33901 On Behalf of the State of Florida 6 7 8 OFFICE OF REGIONAL COUNSEL KEVIN McNEELEY, Attorney At Law 2000 Main Street, Suite 500 Fort Myers, Florida 3901 9 On Behalf of the Defendant, Mary Nowling 10 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 • 25 KIMBERLY ERWIN, ASSISTANT PUBLIC DEFENDER OFFICE OF THE PUBLIC DEFENDER, 20th JUDICIAL CIRCUIT 1700 Monroe Street, 6th Floor Fort Myers, Florida 33901 On Behalf of the Defendant, John B. Daniels 3 • I 1 N D E X PAGE : 2 3 - 5 MARCH 23, 2010 - MORNING SESSION STATE'S VOIR DIRE EXAMINATION - 16 DEFENSE VOIR DIRE EXAMINATION - 90 4 5 171 171 COURT'S PRELIMINARY INSTRUCTIONS - 172 STATE'S OPENING STATEMENT - 177 DEFENSE OPENING STATEMENT - 180 MARCH 23, JURY SWORN 7 9 10 11 12 • - 6 13 2011 - AFTERNOON SESSION JONATHON S. ARMATO DIRECT EXAMINATI ON BY MS. FITZGERAL D AUDIO RECORDING NO. AUDIO RECORDING NO. CROSS-EXAMINATION BY MR. McNEELEY 17 RAYMOND VAN HOUTEN DI RECT EXAMINATI ON BY MS. FITZGERALD CROSS-EXAMINATION BY MR. McNEELEY REDIRE CT EXAMINATION By MR . FITZGERALD 18 MATTHEW PUTTERBAUGH 14 15 16 19 20 21 - 183 1 2 DIRECT EXAMINATI ON BY MS. FITZGERALD CROSS-EXAMINATION BY MR. McNEELEY REDIRECT EXAMINATI ON BY MR. F ITZG ERALD STATE RESTS - 198 - 200 - 2 13 - 247 - 255 - 277 - 279 - 288 - 294 - 2 95 22 23 24 • 25 MARY NOWLING DIRECT EXAMINATION BY MR. McNEELEY CROSS-EXAMINATION BY MS. FITZGERALD REDIRECT EXAMINATION BY MR. McNEELEY MARTINA REPORTING SERVICES (239) 334-6545 - 299 - 329 - 331 4 • 1 INDEX {Cont.) 2 MARCH 2 4 , 2010 - M0 RN IN G S E S S I 0 N - 336 3 344 CHARGE CONFERENCE 4 DEFENSE RESTS - 350 STATE'S CLOSING ARGUMENT - 352 DEFENSE CLOSING STATEMENT - 358 STATE'S REBUTTAL ARGUMENT - 372 CHARGE OF THE COURT - 376 JURY DELIBERATION - 392 JURY VERDICT - 393 5 6 8 9 10 11 12 • 13 STATE'S EXHIBITS- RECEIVED IN EVIDENCE 14 15 Description Page 16 17 18 State's Exhibit No. 2 CD - Audio Recording - 197 State's Exhibit No. 3 Bag Containing Tablets - 19 20 21 22 23 24 • 25 MARTINA REPORTING SERVICES (239) 334-6545 283 198 • 1 (AUDIO RECORDING NO. 1) 2 3 (The following transcription may contain 4 unintelligible or misunderstood words due to the 5 recording quality, 6 not pr ov id ed .) 7 (Thereupon, as a transcript of same was the following audi o ta ped 8 rec ord ing was played in open co u rt, 9 hearing of the jury, and taken down by th e court 10 in the reporter to the best of her ability, as follows: 11 12 • 13 14 "DET. ARMATO: Three, Count down . one. "Detective Armato of the Lee County 15 16 Sheriff's Office, Spec ia l 17 Division, Investigations Narcotics Unit. "Today's date is September 18th, 2009. 18 • two, All right. On my way 19 The time is approximately 12:50 p.m. 20 to t he Publix on Palm Beach Boulevard in Morse 21 Shores Plaza to meet a female by the first name 22 of Theresa, 23 purchase 150 Oxycodone 30-milligram tablets for 24 $1, 2 00. 25 last name possibly Giddons, to "G o ahead , call them." MARTINA REPORTING SERVICES (239) 334 -654 5 199 • 1 (Inaudible}. 2 (No sound.} 3 "THERESA NOWLING: 4 "DETECTIVE ARMATO: Red Toyota SUV. They said they were going to go up to the river and 6 hang out, so I called them." 7 "MALE SPEAKER: 8 "THERESA NOWLING: 9 "MALE SPEAKER: there. 13 right there. We're here at I ' l l be right so we'll be We're in a -- we're in a gold Toyota Camry. "THERESA NOWLING: 17 "DETECTIVE ARMATO: Huh? We're in a gold Toyota Camry. 19 "THERESA NOWLING: 20 "MALE SPEAKER: 21 "THERESA NOWLING: A gold colored Camry? Yeah. This is the Publix parking lot? 23 "MALE SPEAKER: 24 ''THERESA NOWLING: 25 Okay. Okay. 16 22 Yeah. We're down here at the store, "MALE SPEAKER: 14 18 Theresa. It's Woody. "THERESA NOWLING: 12 15 Hey, the Publix parking lot. 11 • this is Theresa. 5 10 • Hi, On Palm Beach. On Palm Beach. (Inaudible}. MARTINA REPORTING SERVICES (239} 334-6545 Okay. 200 • 1 "MALE SPEAKER: 2 "THERESA NOWLING: 3 "MALE SPEAKER: 4 "UNIDENTIFIED SPEAKER: 5 "THERESA NOWLING: 6 "MALE SPEAKER: 7 (Inaudible). Yeah, by 75. (Inaudible). (Inaudible) . Yeah, a gold Camry, waiting -- huh? 8 "JOHN DANIELS: Are you -- 10 "MALE SPEAKER: Yeah, 11 right here next to me. 9 • Hey . (inaudible) -- waiting? my buddy sitting 12 "UNIDENTIFIED SPEAKER: 13 "MALE SPEAKER: 14 "UNIDENTIFIED SPEAKER: 15 (End of first recording.) Okay. All right. (Inaudible). Okay, bye. 16 17 18 (AUDIO RECORDING NO. 19 20 "UNIDENTIFIED SPEAKER: What the hell's "UNIDENTIFIED SPEAKER: They're on their up? 21 • 2) 22 way. I'm going to run into the Publix real quick 23 and take a piss and then go right back out. 24 "All right. 25 (Inaudible). I ' l l be quick. MARTINA REPORTING SERVICES (239) 334-6545 201 • 1 (Pause) . 2 "UNIDENTIFIED SPEAKER: 3 know that we're here? 4 (Inaudible). 5 "UN I DENTIFIED SPEAKER: 6 "UNIDENTIFIED SPEAKER: going to move that way. are. 11 12 • right there, 14 (inaudible) 15 right there? • (inaudible). there they Yep, that's her You see that -- -- you see that Boar's Head truck "Okay, we'll park right on the other side 17 of it, 18 looking at it. 19 -- come over to -- right here. right -- right past it. You're-- you're You're looking at us. 20 "Okay, 21 "UNIDENTIFIED SPEAKER: Come, come Do you see us? bye. right back, mom. Okay, (Inaudible). 24 "UNIDENTIFIED SPEAKER: in their -- me and you? Let me call you bye. 23 25 Oh, I'm yep. "UNIDENTIFIED SPEAKER: 16 All right. Is that them right there? "UNIDENTIFIED SPEAKER: 13 22 Supposed to go You guys -- "UNIDENTIFIED SPEAKER: 9 10 Right there. around back. 7 8 Do you think they Hop out and jump Go. MARTINA REPORTING SERVICES (239) 334-6545 202 • 1 (Inaudible) . 2 "UNIDENTIFIED SPEAKER: 3 (Inaudible). 4 5 "THERESA NOWLING: (Inaudible). 7 "UNIDENTIFIED SPEAKER: Yeah, 150 to me. (Inaudible). "UNIDENTIFIED SPEAKER: 11 "THERESA NOWLING: (Inaudible) . 14 "THERESA NOWLING: since I 16 17 can't -- That's me. Let me see That was a fast move, "UNIDENTIFIED SPEAKER: Stuck in (inaudible). (Inaudible). 19 "THERESA NOWLING: Don't get mad. 21 I gave -- (inaudible). 23 bottle. Well, nobody -- They're all in that little white "THERESA NOWLING: 24 (inaudible). (Inaudible). "UNIDENTIFIED SPEAKER: 22 25 here you go. (inaudible). 18 20 Oh, your wires. 13 15 That's okay. What's the 10 12 • I don't even do them, but I 9 • (Inaudible). 6 8 I'm sorry. I a sked you to do the deal . MARTINA REPORTING SERVICES (239) 334-6545 203 • 1 (Inaudible) . 2 "JOHN DANIELS: 3 "UNIDENTIFIED SPEAKER: 4 ( Inaudible). 6 "JOHN DANIELS: (Inaudible). 9 "JOHN DANIELS: thing -- (Inaudible). I was cou n ti n g up and t h e (inaudible) . "THERESA NOWLING: (Inaud i ble) -- all in 12 one bottle in there and you never handed them 13 back to me . 14 (Inaudible). 15 "UNIDENTIFIED SPEAKER: 16 "T HERESA NOWLING: 18 (inaudible) 19 (inaudible ). Well, "JOHN DANIELS: 21 "UNIDENT I FIED SPEAKER: 22 "THERESA NOWLING: 24 25 help me, they probably -- in the parking lot and 20 23 Can't we all just get along? 17 • I was "THERESA NOWLING: 11 • No, That's not one. 8 10 Look in the door. Try the door th e re. 5 7 Had nothing in the box . Major weight. Fuck. You yelling at me don't John. "UNIDENTIFIED SPEAKER: Can't we all just get a lon g? MARTINA REPORTING SERVICES (239) 334-6545 204 • 1 2 "THERESA NOWLING: 21 -- (inaudible). 3 4 "UNIDENTIFIED SPEAKER: "UNIDENTIFIED SPEAKER: 6 "JOHN DANIELS: It's all kinds of -- "UNIDENTIFIED SPEAKER: (inaudible). 10 (inaudible). 11 Is that -- Th at was when my do gs -- gunsho t "UNIDENTIFIED SPEAKER: Well, it must have No, I've scraped slipped. 13 14 (Inaudible). (inaudible). 9 12 Can't we all just get along? 8 "THERESA NOWLING: Yeah. everything off that bottle for me. 15 "Getting mad at me don't help. 16 "UNIDENTIFIED SPEAKER: 17 "THERESA NOWLING: 18 did ha nd them to you. 19 20 (Inaudible). Ca n't we all just get along ? (Inaudible). 22 "JOHN DANIELS: 23 " ( In a udible). 25 (Inaudible). When you get mad -- I " UNIDENTIFIED SPEAKE R : 21 24 • Hey? 5 7 • I was married 18 -- nothing. Deal with -Shorts. (inaudible). Never did me (In a ud i ble). " JO HN DANIELS: You know wh a t MART INA REPORTING SERVICES (239) 334-6545 I p a id for 205 • 1 that pocket knife? 2 3 "UNIDENTIFIED SPEAKER: like that. 4 5 Such a nice . knife now. (Inaudible). 7 "Now from -- yeah, 8 your own -- cut your arm, 9 rope with, " (Inaudible) 11 "Yeah, station? (inaudible) "UNIDENTIFIED SPEAKER: You know, What When is the last? you -- do you all know? "UNIDENTIFIED SPEAKER: Down on 41, I think. (Inaudible) 22 "JOHN DANIELS: 25 (Inaudible). o 21 24 Where's the gas (Inaudible). if the -- 19 23 or a piece of you ain't got to worry about all "UNIDENTIFIED SPEAKER: 17 20 you know, o "THERESA NOWLING: 15 18 you want to cut that. 13 14 yeah, it's perfect. 10 16 • Paid $25 for that pocket 6 12 • (Inaudible) . "JOHN DANIELS: knife. When my -- was mall, isn't th e re, o There is one out by the down 41? "UNIDENTIFIED SPEAKER: (inaudible) Just driving -- o MARTINA REPORTING SERVICES (239) 334-6545 206 • 1 '(Inaudible) . 2 "THERESA NOWLING: 3 (inaudible). 4 5 "UNIDENTIFIED SPEAKER: "JOHN DANIELS: 7 "UN I DENTIFIED SPEAKER: Got it. 8 "UNIDENTIFIED SPEAKER: Yeah. 11 Do you got it? (Inaudible). "THERESA NOWLING: I want to go find me a (inaudible). 12 "JOHN DANIELS: 13 "THERESA NOWLING: 14 (inaudible) My morn up the whole Hey, -- but i t ' s not -- 15 "UNIDENTIFIED SPEAKER: 16 "THERESA NOWLING: 17 I gave John (inaudible ) . Yeah. You wouldn't have s o mething that you wanted to boost, would you? 18 " UN IDENTI FIED SPEAKER: 19 "THERESA NOWLING: 20 "UNIDENTIFIED SPEAKER: 21 Do you hear it? 10 booze join t Boost? Uh-huh. No, the r e's a right here on Pa lm Beach. 22 "UNIDENTIFIED SPEAKER: (Inaudible). 23 "UNIDENTIFIED SPEAKER: There's more 24 • Ringing. 6 9 • That's h ow I always-- 25 than -- (inaudi ble). "UN IDENTI FI ED SPEAKER: Ye a h, MARTINA REPORTING SERVICES (239) 334 - 6545 t here i s a 207 • 1 booze store right here on Palm Beach. 2 called it once -- (inaudible). "UNIDENTIFIED SPEAKER: (Inaudible). 4 "UNIDENTIFIED SPEAKER: I'm not a truc k er, 5 but -- trying to pull out that Boar's Head meat. 6 (Inaudible). 7 "UNIDENTIFIED SPEAKER: (Inaudible ) . 8 "UNIDENTIFIED SPEAKER: I would love that, something called head cheese? 10 "(Inaudible). 11 "UNIDENTIFIED SPEAKER: Who? 12 "UNIDENTIFIED SPEAKER: ( Ina u dible). 13 "UNIDENTIFIED SPEAKER: Yeah, booze. 15 "UNIDENTIFIED SPEAKER: (Inaudible). 16 "THERESA NOWLING: 17 "UNIDENTIFIED SPEAKER: 18 "THERESA NOWLING: 14 19 Oh, yeah. to the -- Does he look okay? (Inaudible). (Inaudible). (inaudible). 20 "JOHN DANIELS: 21 (Inaudible). 22 11 23 • I 3 9 • I mean, JOHN DANIELS: (Inaudible). Well, that was -- (inaudible). 24 " Two sh or t. 25 "THERE SA NOWLING: You got t wo mo re to I'm l o oking. MARTI NA REPORTING SERVICES (239) 334-6545 Walk up 208 • 1 (Inaudible). 2 (Inaudible). (Inaudible) 4 (Inaudible) 5 "JOHN DANIELS: (inaudible) h ad it . (Inaudible) -- nice chunk -- -- of you -- (inaudible). 7 "UNIDENTIFIED SPEAKER: Hot. 8 "UNIDENTIFIED SPEAKER: (Inaudible). 10 "UNIDENTIFIED SPEAKER: 150. 11 "JOHN DANIELS: 9 12 How many? three, 13 Here, there's one -- four-- 5 .5. "UNIDENTIFIED SPEAKER: What does that 15 "UNIDENTIFIED SPEAKER: They're all 30s. 16 "THERESA NOWLING: 14 17 mean? that's my -- 18 19 21 24 25 (inaudible). Oh, no, it's a different brand. "UNIDENTIFIED SPEAKER: don't know -- I don't 22 23 That's -- I mean I'm-- "UNIDENTIFIED SPEAKER: 20 • thought that I 3 6 • I "JOHN DANIELS: 25. ( I naudible) (Inaudible). I (inaudible). I didn't think they made a A 30. They don't make a 25. (Inaudible) . "THERESA NOWL I NG: You want to MARTINA REPORTING SERVICES (239) 334-6545 209 • 1 (inaudible) . 2 "UNIDENTIFIED SPEAKER: All right. 4 "UNIDENTIFIED SPEAKER: (Inaudible) 5 "UNIDENTIFIED SPEAKER: All right. 6 "UNIDENTIFIED SPEAKER: (Inaudible) 3 7 cool. (Inaudible). 8 9 "UNIDENTIFIED SPEAKER: thousand, 10 • • 11, 700, 800, "THERESA NOWLING: See what I'm saying? ask e d for -- 12 across town. It's like walking across -- 13 (inaudible). They've never heard of -- (inaudible). It's like walking 14 "UNIDENTIFIED SPEAKER: 15 "THERESA NOWLING: of -- 900, 12. 11 16 That's What? They've never heard (inaudible). 17 "UNIDENTIFIED SPEAKER: 18 "THERESA NOWLING: 19 "UNIDENTIFIED SPEAKER: Indiana? 20 "UNIDENTIFIED SPEAKER: Okay. 21 "THERESA NOWLING: 22 "UNIDENTIFIED SPEAKER: Well, I -- (Inaudible). 23 was in the northwest corner, 24 any fuckin' 25 to -- place, {Inaudible). (Inaudible). too. I So Indiana is so o nly took two hours to get MARTINA REPORTING SERVICES (239) 334-6545 I 21 0 • 1 " JOHN DANIELS: 2 time and I missed -- I 3 my exit, 4 5 acr os s • know I'm in Indiana. "THERESA NOWLING: Man, Yeah, I "THERES A NOWLING: 12 (Inaudible ) . 13 Greenfield and -- 14 ta l king about (Inaudible). (Inaudible). E v en drove up. (Inaudible) . (inaudible) . "UNIDENTIFIED SPEAKER: Green fie ld, "THERESA NOWLING: And i t 's not, 18 (Inaudible). you know, It's-- It's southern, (inaudible). "UNIDENTI FIED SPEAKER: There 's not a whole lot of big towns in I ndiana, 21 Indiana could be in -- 22 (Inaudible). 25 (inaudible) I mean, but Evanvi lle. "My buddy lives in Boonevi l le, outside of -- yeah. i t ' s not this here. 20 24 that's in 17 23 had t o go throwing a rock and -- 11 19 did you go across it. "UNIDENTIFIED SPEAKER: 15 Yeah, the bridge? 10 16 • stayed on 75 and I missed "UN IDENT IFIED SPEAKER: 8 9 was going to Ohio one "UNIDENTIFIED SPEAKER: 6 7 next thing I I which is ( in audible). "UNIDEN T IFIED SPEAKER : Zero when you wen t MARTINA REPORTING SERVI CES ( 239) 33 4- 6545 211 • 1 2 "UNIDENTIFIED SPEAKER: 3 "THERESA NOWLING: 4 to go through -- 5 Alabama. 6 right here. 7 (Inaudible). (inaudible) This is my home, I'm just going -- go right back to but i t ' s -- this place (Inaudib l e). And I yeah. It's so bad. just -- (inaudible}. "UNIDENTIFIED SPEAKER: Yeah. 9 "UNIDENTIFIED SPEAKER: (Inaudible). This? 11 "THERESA NOWLING: 12 "UNIDENTIFIED SPEAKER: Okay. "UNIDENTIFIED SPEAKER: This is my brother 16 "UNIDENTIFIED SPEAKER: (Inaudible). 17 "UNIDENTIFIED SPEAKER: Same thing. 13 15 Okay. John. want it, "UNIDENTIFIED SPEAKERS: 20 "UNIDENTIFIED SPEAKER: "THERESA NOWLING: Made you come (Inaudible). Well, I (inaudible). 24 25 (Inaudible). down? 22 23 You you could get it. 19 21 We're out of here . 14 18 • Yeah. Oh, 8 10 • up there? "UNIDENTIFIED S PEAKER: All right. see you . MARTINA REPORTING SERVICES (239) 334 - 6545 I' 11 212 • 1 "UNIDENTIFIED SPEAKER: (Inaudible) . 2 "UNIDENTIFIED SPEAKER: Yeah. 3 4 "UNIDENTIFIED SPEAKER: Damn. 5 "UNIDENT IFIED SPEAKER: (Inaudible). 6 "UNIDENTIFIED SPEAKER: Didn't get into 7 • (Inaudible). it, all -- (inaudible). 8 "UNIDENTIFIED SPEAKER: (Inaudible). 9 "UNIDE NTIFIED SPEAKER: (Inaudible). 10 "THERESA NOWLING: 11 "(Inaudible). 12 "UNIDENTIFIED SPEAKER: 13 Gulf Romeo. Done deal. Mike six one zero (Inaudible) . 14 15 (Conclusion of audio recorded statement.) 16 17 18 • BY MR. Q. FITZGERALD: Detective, at the very beginning of that 19 audio recording, 20 call that was on speaker phone? do you remember listening to a phone 21 A. Yes. 22 Q. Do you remember wh o actually made that phone 23 call? 24 A. The guy. 25 Q. Okay. And there was also some clicking sound MARTINA REPORTING SERVICES (23 9) 334-6545 213 • 1 in that audio. 2 tapping or somethi ng of that nature? 3 A. Kind of. 4 Q. Okay. All right. how long did you stay? 6 there was a lot of just chitchat. 8 with Mr. 9 transaction took place? Because i t seemed as though Daniels and the defendant after the actual 10 A. Maybe five minutes, 11 Q. All right. 13 MS. I have no further questions at this time . THE COURT: 15 MR. Cross-examination. McNEELEY: 16 18 if that. All right . FITZGERALD: 14 17 and approximately How long did you stay and make conversation 12 Yes, Your Honor. CROSS-EXAMINATION BY MR . McNEELEY: Q. Detective, when you said that you had worked 19 with narcotics undercover for four and a half years, 20 did you mean -- did you mean you were with Narcotics 21 Undercover Division for four and a half years or just 22 LCSO for four and a half years? 23 24 • Well, 5 7 • Do you recall listening to that, 25 A. LCSO for f o ur and a half years, nar cotics for a little over two . Q. Now, you said that two of the types of things MART I NA REPORTING SERVICES (239) 334-6545 2 14 • • 1 that you actually target for, 2 phra s e you used wa s either "target" or "target free." 3 Is that the t e rminology you u sed ? 4 A. I'm s o rry? 5 Q. Did you mention t ha t the two types of targets 6 or marks that you wo uld go after would be, 7 you specifically know who they are, 8 times where y o u'd j u st go up and down the street and 9 you try to se e if anybody tr i es to sell you anything ? one, that and there's other 10 A. No. 11 Q. Okay. 12 A. There's on e where you go up and down the You mu st h ave misunderstood me then. 13 street and look for -- you know, 14 a specific neighborhood or a high crime area. 15 that's like targeting The other type is a -- one where you would go 16 with a c o nfidential informant and be introduced to, 17 whether y o u know that p e rson a n d have them iden t ified 18 or not. 19 • or actually I think the Q. Right. 20 informant, 21 again, Now, Woody, that's the confidential th e n ame you kept hearing o ver and over right ? . 22 A. If you say so. 23 Q. How many peo pl e wer e in the car ? 24 A. Four. 25 Q. Okay. You, Mary Nowling, Jeff Daniels, MARTIN A REPORTING SERVI CES ( 239 ) 3 3 4-6 5 45 215 • 1 correct? 2 A. Correct. 3 Q. And a fourth individual? 4 A. Correct. 5 Q. Known to Mary Nowling, 6 A. Yes. 7 Q. Did Woody ever explain to you how he knew 8 A. No. 10 Q. Did he ever explain to you how you knew -- how he knew John Daniels? 12 A. No. 13 Q. Prior this operation, y ou thought her name 14 was Theresa Giddons. 15 thought the subject's name was Theresa Giddons? I You had testified that you 16 A. 17 Theresa, 18 Q. 19 that? 20 A. That was through the source. 21 Q. Who -- the source, 22 • Mary Nowling? 9 11 • correct? said the last -- first name known as last name possibly Giddons. Why did you come to that? Why did you think the fourt h person in the car? 23 A. The confidential informant. 24 Q. And he never explained to you how he thought 25 her -- or knew her to be Theresa Giddons? MARTINA REPORTING SERVICES (239) 334-65 45 216 • 1 A. No . 2 Q. Did he explain to you how he knew Jeff 3 Daniels? 4 A. No. 5 Q. I'm s or ry, 6 you how he knew John Daniels? A. No. 8 Q. How did you kn ow John Daniels? 9 A. I was sh own a picture of him. 10 Q. Okay. 12 13 14 Are you saying the first time you ever talked to Joh n Dan ie ls was on this audio recording? MS. FITZGERALD: Objection, Your Honor. May we approa ch? THE COURT: Come on up. (Thereupon, a sidebar conference was held, 15 16 17 • Did he explain to 7 11 • Jo hn Daniels. out of the hearing of the jury, as follows:) 18 THE COURT: 19 MS. You're going into Count 1. FITZGERALD: My objection is that he's 20 getting ready to go into what the detective 21 actually purchased fro m John Danie l s the day 22 before. 23 MR. McNEELEY: I would like to establish that 24 when he showed up, Theresa Giddens wasn't 25 somebody on the radar . They were originally MARTINA REPORTING SERVICES ( 239) 334 -6545 217 • 1 targeting Daniels and -- other than other 2 testimony he's given, 3 secondary to what the target was. 4 THE COURT: Her involvement so far is 5 secondary to the target? 6 showed up, 7 so 8 9 She's the one that she was the one running the show, MR. McNEELEY: Okay. I ' l l try to ask different questions leading to that. 10 • her involvement is THE COURT: You're getting into other areas 11 with Daniels. You ask him if he saw Daniels and 12 he'll say yes, because he bought cocaine from 13 him . 14 MR. McNEELEY: 15 i t ' s a prior bad act? 16 17 THE COURT: Is that not admissible because Well, if you do it, you're open to whatever they come up with. 18 MR. 19 (Sidebar conference concluded.) McNEELEY: Okay, okay. 20 21 22 23 24 • 25 BY MR. McNEELEY: Q. How did you come by the realization the female in the car was going to be named Theresa? A. That was from what the confidential informant thought her name was. MARTINA REPORTING SERVICES (239) 334-6545 218 • • • 1 Q. When you said that the reason for the 2 confidential informant to be involved in this 3 operation was that you were saying that he was getting 4 paid. 5 A. Correct. 6 Q. Okay. 7 A. I don't recall. 8 Q. Do you know who paid him? 9 A. It would have been Detective Van Houten. 10 Q. Because he was the case detective. 11 A. Correct. 12 Q. Did you have reason to believe that the CI 13 was dependable? Do you know how much he got paid? Truthful? 14 A. Yes. 15 Q. Because you had worked with him before? 16 A. Yes. 17 Q. Is it possible that the reason why a 18 confidential informant would give you people to take 19 down and make sales from is that he would want to 20 divert attenti on from other people? 21 MS. FITZGERALD: 22 THE COURT: 23 MR. 24 THE COURT: Objection, Your Honor. Possible and sheer speculation. Mc NEELEY: Okay. Sustained. 25 MARTINA REPORTING SERVICES (239) 334-6545 219 • 1 2 3 4 Were you aware that -- were you aware that Woody had prior felony convictions? A. I'm not -- I don't know the confidential informant's criminal background. 6 controlling detective, 7 criminal history on him. 9 10 Q. Okay. I wasn't his so I'm not the one who did the But you said one of the reasons why someone would become a confidential informant was -- I think you said to look for legal leniency? 11 A. That is correct, 12 Q. So is that the only way to get legal leniency 13 is to 14 MS. 15 THE COURT: 16 MR. 17 18 BY MR. Q. FITZGERALD: if they had charges pending. Objection, Your Honor. Sustained. McNEELEY: Okay. McNEELEY: Would i t make sense, 19 want to se t 20 much of a product to transfe r the reason why you would up a transaction was to try and get as hands as possible? 21 A. Not necessarily. 22 Q. Or what would be another reason or another 23 24 • Q. 5 8 • BY MR. McNEELEY: 25 goal of that undercover transaction? A. To get the drugs off the streets, to take the people to jail that are selling the drugs regardless MARTINA REPORTING SERVICES (239) 334-6545 220 • 1 2 3 Okay. And would that be true even if the person doing it was a confidential informant? A. Can you repeat that? 5 Q. If that was the major goal, then how would 6 you accomplish that if you're using one person who 7 theoretically is looking for legal leniency 8 MS . 9 THE COURT: 11 BY MR. Sustained. McNEELEY: Q. -- you would choose one or the other? THE COURT: 13 MR. McNEELEY: 14 MS. FITZGERALD: 15 17 BY MR. Objection. FITZGERALD: 12 16 Sustained. All right . Statement of -- all right. McNEELEY: Q. The red Toyota you know to be -- that was John Daniels' car, right? 18 A. No, 19 Q. Whose car was it? 20 A. It was reg istered to an older white female 21 22 • Q. 4 10 • of the amount . it was not. that lived out in Lehigh. Q. Every time you saw that individual or you saw 23 that vehicle or whenever -- who was driving the 24 vehicle? 25 A. John Daniels. MARTINA REPORTING SERVICES (239} 334-6545 221 • • 1 Q. Okay. 2 A. Yes, 3 Q. Did he ever turn around to face you? 4 A. I believe so, 5 Q. Okay. I did. yes. Is it correct that we heard on that 6 video that John Daniels introduced you to Mary 7 Nowling? 8 A. No. 9 Q. Wh o introduced you? 10 A. The CI did. 11 Q. So that's him saying, 12 John. 13 A• John, "This is my friend this is John?" Yeah. He's like, "Hey John, this is John. 14 John, 15 Q. Okay. 16 A. It gets confusing with two people named John 17 Theresa." in t he same car. 18 Q. Right. 19 A. Yes. 20 Q. And the other person named John Daniels was 21 • And you sat behind him in the car? And that was your name, really being called John-J oh n. 22 A. 23 know, 24 in the audio tape. 25 John? Q. No, it was just John. Saying John, John, you the hand gest u res that you obviously don't see When there was about a two to three-minute MARTINA REPORTING SERVICES (239) 334-6545 222 • 1 time period there where someone was looking for pills 2 or they were -- who was looking for pills? 3 A. John Daniels and the defendant. 4 Q. Okay. 5 that? 6 A. They were both going into each other -- or not each other's pockets, 8 defendant was looking through her purse. but their own pockets. John actually got out of the car, The went to the 10 back of the vehicle, 11 he -- looking at any spot that the pills could have 12 been. 13 believe looked in the center console which is in 14 between the front two seats. 15 Q. I mean basically looking and then The defendant looked in the glove box. John I When the CI said "Can't we all just get 16 along," is that the person that said that, 17 all just get along"? "Can't we 18 A. Yes. 19 Q. Was he saying that because the voices between 20 21 22 • How were they looking? 7 9 • And what were they doing to effect John Daniels and Mary Nowling were getting raised? A. around, It was more just -- just kind of joking just the way they were arguing back and forth. 23 Q. They were bickering? 24 A. Yes, basically. 25 Q. Did John Daniels get out of the vehicle MARTINA REPORTING SERVICES {239) 334-6545 223 • 1 before or after the bick e ring began? 2 A. Af t er. 3 Q. It was 4 A. It was right in the middl e as they were 5 looking for the pills, 6 He opened up the b ac k hatc h of the SUV. Q. 7 8 • When yo u handed the money, Mary Nowling, you gave it to right? 9 A. Corre c t. 10 Q. And yo u ha d test i fied that she started to 11 look thr o ugh it or start ed t o count it, 12 to John Daniels? then handed it 13 A. Yes. 14 Q. And the n J o hn counted it out and gave her 15 money back? 16 A. Count e d it o ut in hundred dollar increments, 17 giving it to her a h u ndred do l lars at a time, 18 fr o m zero all the way up to the $1, 2 00. Q. 19 Okay. And a t 20 coun t ing the pills, 21 25? 22 • h e got out to chec k the back. A. starting one point when you we re y ou h a d sa id five or 2 5 . Five or There were 50 pills that were a different 23 color fr om the rest o f 24 identi f i e d as 3 0-millig r am a s Ro xi -- or Ox y codone, 25 they we re just a di f f ere n t th e m. The y were still b ra nd. MARTI NA REPORT ING S ERVICES ( 239 ) 33 4- 6 54 5 224 • 1 One, 2 the M30. 3 and stamped with an A, Q. 4 • are standard with The others are a little bit darker in color All right. I think 215 or 216. Part of the things you do in 5 order to effectuate -- in order to do your job, 6 got to take on the personality and character of 7 someone who is doing this all day long; 8 corr e ct? 9 A. S ome times, 10 Q. So when you said five of these are 25s, you•ve is that yes. you 11 were trying t o speak like any other person in volved 12 with this would say it, 13 it, and that•s how they would say right? 14 A. Ye ah. 15 Q. Becau se 25 refers to milligrams. 16 A. Yes. 17 Q. Do you remember Mary Nowling saying, 18 does that mean? "What Wh at are you talking about?" 19 A. I believe so. 20 Q. Okay. And then you explained i t to her. 21 A. Yeah. And then , 22 23 24 • the lighter blue ones, 25 "Well, Q. I don•t know, Okay . I mean, becaus e I don•t do them." What are some of the reasons why Oxyc o don e wou l d be prescribed? A. she still said, Wha t •s i t Pain. MART I NA REPORTING SERVICES ( 239 ) 334-6545 for? 225 • 1 Q. 2 John-John? 3 as John-John? A. I don't believe so. 5 Q. Okay. If we if you were -- well, I '11 ask a different question. 7 If -- why were -- when you were in the car 8 and you were driving to the location, why did Woody 9 call -- or why did your confidential informant call 10 11 12 13 14 the defendants? A. Because he's the one that knows them, I don't. Q. You don't know John-John or John Daniels at all? 15 Well, let me ask a different question. John 16 Daniels said something to you on the phone that was 17 played here, 18 19 • Or do you remember ever referring to him 4 6 • At any point did you ever call John Daniels A. right? He asked you a question. He didn't ask me a question, he asked the CI a question. 20 Q. What did he ask him? 21 A. "Is your friend wi th you?" 22 Q. And who was he referring to? 23 A. Me. 24 Q. Bef ore you started the investigation, 25 know tha t you did the p er son's na me was John Daniels be fore MARTINA REPORTING SERVICES (239) 334-6545 226 • 1 A. Yes, 3 Q. How did you get a photograph of Mary Nowling he was identified as John Daniels. 4 on the same day when you didn't know her name, 5 thought it wa s Ther es a Giddons? 7 A. Through an investigation, you looking through the Lee County record s . 8 Q. Of what? 9 A. The last name Giddons, and then that 10 research -- that gave up a couple of addresses with a 11 co u ple other people with the last name Giddons, and 12 there was a particular address on the street named 13 Huber . 14 And I ran that address in the Lee County 15 records and Mary Th ere sa Nowling's name came up, 16 clicked on it and knew a hundred percent that that was 17 the person that I 18 Q. Okay. And Mary Nowling, she was therefore or did -- out of your investig at ion, 20 realize Giddons was her previously married name? A. I didn't n ow. did you come to Just because she had nothing 22 in the records but the la st name Giddons, 23 addr ess in common with another female, 24 name Giddons. 25 Q. I just b oug ht the pills from. 19 21 • right? 2 6 • you met with him, just an but the las t Wh e n you set up buys with p eo ple, there's MART INA REPORTING SERVICES (239) 334-6545 227 • 1 usually a couple phone calls that happen beforehand, 2 right? 3 A. Normally, 4 Q. Were you or was woody calling John Daniels? 5 A. The CI was. 6 Q. Calling John Daniels. 7 A. I don't know who he was calling. 8 Q. You don't know who he was calling? 9 A. He was calling a phone number. 10 11 • I know voicemail that came up in the audio was Theresa's. Q. Were you ever with this confidential 12 informant when he made a phone call to John Daniels 13 prior to this event, 14 event? specifically to set up this 15 MS. 16 THE COURT: 17 I told you before. 18 19 20 21 • yes. MR. FITZGERALD: Objection. This -- I'm just going to leave it where McNEELEY: Let me ask you a different question. BY MR. McNEELEY: Q. Are you aware of anything that this 22 confidential informant, the person you're relying upon 23 to accept the transaction, 24 that he said to Mary Nowling and/or John Daniels to 25 convince them to sell pills? are you aware of anything Anything that he said? MARTINA REPORTING SERVICES (239) 334-6545 228 • • 1 I know what was said to his control detective 2 when John Daniels and the defendant came upon our 3 radar, 4 defendant went to our confidential informant's house 5 and told them, 6 get some blues," which are also known as the 7 30-milligram Oxycodone pills, and that was the fact that John Daniels and the "If you know anybody who is looking to "give us a call." 8 Q. Right. 9 A. That's correct. 10 Q. And you don't have any recordings of that. 11 A. Correct. 12 Q. Okay. 13 That's what "we" told you, right? No. When you said that this confidential 14 informant had a control detective, 15 other than anyone that was mentioned here today, 16 Van Houten or -- you mean someone not 17 A. Correct. 18 Q. Did you ever me et with the control agent -- 19 or control detective? 20 A. Yes. 21 Q. Did he tell you specifically the reason why 22 Woody was doing this or that this confidential 23 informant wa s 24 • A. 25 MS. helping to set up this transaction? FITZGERALD: Objection, calls for hearsay . MARTINA REPORTING SERVICES (239) 334-6545 229 • 1 THE COURT: 2 MR. 3 a reason, I'm just asking if he told him Your Hon o r. THE COURT: 5 MR. McNEELEY: 7 It's sustained. Okay. BY MR. McNEELEY: Q. On the audio there's a section where the 8 confidential informant asks you, 9 call him?" "Do you want me to That was the first time that they made a 10 phone call to make sure that you guys were going to 11 the right location. 12 13 14 15 A. 17 Q. 20 That was when we were on our way to let Okay. Why do you think that -- well, why would Woody be calling him? MS. FITZGERALD: Why would he say "him"? Objection, Your Honor, speculation. 18 19 Yes. Do you remember that? them know that we were on our way . 16 • McNEELEY: 4 6 • Sustained. THE COU RT: S u stained. BY MR. McNEELEY: Q. When you got on the phone with Daniels when 21 you were still in the car, it sounded like -- or did 22 you at any time -- in this drive, 23 Daniels? 24 A. During the p h one conversation? 25 Q. Yeah, prior to arr i ving at that time location did you talk to John MARTINA REPORTING SERVICES ( 2 39) 3 34-6545 230 • 1 where you all met up, did you talk to John Daniels on 2 the phone yourself? 3 A. No. 4 Q. Who was the individual on the DVD saying that 5 I Daniels asking the confidential informant if you had 7 something with you that day. 8 any of that? Do you remember hearing 9 A. (Indicating.) 10 Q. Was it easier for Woody to make the phone 12 13 call as opposed to you, A. Yeah, since you're driving? considering that -- considering that the defendant didn't know me, then yeah . 14 Q. Which defendant? 15 A. Mary Nowling and -- you know, 16 17 that I Q. I can't say know John Daniels very well. When Mary Nowling asked you if you knew where 18 a U-haul was in town, 19 that? 20 A. No. 21 Q. Did your confidential informant ever ask you 22 • it sounded like John 6 11 • think it was -- well, do you know why she was asking why she would ask you t hat? 23 A. No. 24 Q. When Mary Nowling asked you if you knew where 25 there was a Boost mobile place, did you know why she MARTINA REPORTING SERVICES (239) 334-6545 231 • 1 2 3 4 It was because something with John's phone broke or her phone broke or something. Q. Okay. Do you remember Mary Nowling talking about just trying to get out of the city? 6 remember her mentioning that? 8 9 A. Do you Said something along the lines she can't s t and 1 i vi n g out here anymore . Q. Did you know any of the reasons why she would 10 say that? 11 A. No. 12 Q. You said that yo u 've been in a hundred cases 13 over a hundred cases or you've investigated over a 14 hundred cases? 15 A. I've been involved in over a hundred cases. 16 Q. Involved. 17 approximately in the same capacity that you were in 18 this one? 19 A. 20 21 22 • A. 5 7 • was asking that? I How many of those were in the same honestly can't give you an exact number. Probably half or more. Q. Okay. And does that mean that you've come to court and t e stified in all those? 23 A. Yes. 24 Q. Not all of them? 25 A. Uhn-uhn. Well, not a ll of them, but -- MARTINA REPORTING SERVI CES (23 9 ) 334-6545 232 • 1 MS. 3 THE COURT: 5 6 BY MR. Q. FITZGERALD: Objection, relevance. Sustained. McNEELEY: When you saw the prescription bottle, did you also get that given to you by Mary Nowling? 7 A. Yes. 8 Q. And can you describe the condition of the 9 10 bottle? Was the actual prescription -- or the prescription on the bottle marked off? 11 A. Yeah, 12 Q. So you c ouldn't s e e her name on the 13 the label was peeled off. prescription bottle . 14 A. Correct. 15 Q. Had you ever -- did you ever investigate to 16 see why she had been given that prescription? 17 A. No. 18 Q. Did you -- did you ever investigate to see if 19 she had been doctor shopping in relation to that 20 prescription? 21 22 • Because they would have pled? 2 4 • Q. A. Th ere was no official investigation, although she did 23 Q. I'm just asking if you investigated. 24 A. No. 25 Q. Wh e n you first showed up, Mary asked you to MARTINA REPORTING SERVICES (239 ) 334-6545 233 • 1 A. Yes. 3 Q. And then she said that "I just want to make sure you don't have wires on you." 5 A. Correct. 6 Q. Is that a typical thing for people involved 7 in these kind of transactions to ask of you? 8 A. Sometimes. 9 Q. And on the times they do, 10 are you -- do you change your tactics at all? 11 A. No. 12 Q. So you would try to be the exact same person 13 that you're pretending to be, 14 not they ask if you're under a wire? 15 16 17 A. regardless of whether or I don't -- I don't know if I understand what you're asking. Q. Well, let me paint a scenario. It seems that 18 the person who would ask if you have a wire would want 19 to do something if they found you had a wire on them. 20 Does that make sense? 21 • is that correct? 2 4 • raise your shirt; Would you be -- would you be -- when someone 22 asks you that, do you immediately have an idea come in 23 your head, 24 geez, 25 they do find something on me, like for pro t e c tion sake, to think that they could either find something on me, or if what are we going to do? MARTINA REPORTING SERVICES (23 9 ) 334-6545 234 • 1 2 3 A. I run scenarios through my head all the time, especially when I'm on deals, 5 what can happen at any time. 6 Q. Okay. 7 A. On the CI's pers o n. 8 Q. Okay. 10 your shirt, because you never know Where was the recording device? So when they asked if you would raise you already kn ew that there was no way they were going to find anyt hing on you. 11 A. Correct. 12 Q. And you in fact joked with her about it, 13 right? 14 A. A 15 Q. Okay. 16 little, I think. Did Jo hn Daniels joke about it a little bit? 17 A. I 18 Q. Where were they situated when they asked you 19 don't recall. to raise your shirt? Standing outside the car? 20 A. No. 21 Q. Where wer e you? 22 A. I was sitting in th e back seat behind the 23 • your head? 4 9, • Do you ever ha v e that issue going through driver and the de fe ndant was t urned facing me. 24 Q. You mean Mary Nowling? 25 A. Correct. MARTI NA REPORTING SERV I CES (23 9) 33 4-6545 235 • 1 Q. Was John Daniels turned facing you? 2 A. No. 3 Q. Did he have a head rest behind him? 4 A. Yes. 5 Q. Did you see his h ands? 6 A. No. 7 Q. Is it possible he co uld have been holding a 8 • 9 A. It's possible. 10 Q. When they were looking for pills, where did 11 they actually find this pill bottle that was gone 12 missi n g? 13 A. 14 15 Mary actually found it. I don't recall where. Q. Do you know if she had -- did she have to 16 move from her position in the car in order to find 17 them? 18 A. 19 20 21 • weapon? Th ey both moved from their position in the car, were turning in their seats. Q. I meant to say did she get out of the seat at all. 22 A. No. 23 Q. John Daniels got out and walked around? 24 A. Yes. 25 Q. She stayed in the seat. MARTINA REPORTING SERVICES ( 239 ) 334-6545 236 • 1 A. Yes . 2 Q. Did she say -- when she was making the remark 3 that she wanted to get out of this town, 4 where she was moving to? 5 6 • A. She actually sai d that she was coming back and forth from I believe Alabama. 7 Q. Did she mention the word Eddyville? 8 A. I 9 Q. Did she mention that she had family up there? 10 A. I 11 Q. Did you eve r don't recall. don't remember. kn ow anything about an 12 individual by the name of Jessica or Thelma Parks 13 or -- 14 MR. 15 please. 16 17 • did she say Mc NEELE Y: One moment, Your Ho nor, (Discussion was held off the record.) BY MR. McNEELEY: 18 Q. Jessica Boric? 19 A. No. 20 Q. How many p i lls were purchased? 21 A. 150. 22 Q. How much did you pay for that? 23 A. $1,200 . 24 Q. When was it de ci ded that you were going to 25 purchase $150 worth of - - or 150 pills? MARTINA REPORTING SERVICES (239 ) 334 - 6545 When was the 237 • • 1 2 A. The night before. 3 Q. And who was that with? 4 A. John Daniels. 5 Q. And whom else? 6 A. The CI. 7 Q. Okay. 8 A. Yes. 9 Q. So the night before, 10 Daniels, 11 the next day. When did that occur? Were you present? the CI, you were with John and you agreed to do this transaction 12 A. 13 next day . 14 Q. Did he say how he was going to have that? 15 A. Not to me . 16 Q. Do you mean to say he said i t to someone else 17 to Woody or the CI? 18 A. No, he never said i t in my presence. 19 Q. Oh, okay. It was said that he would have 150 for us the After that face-to-face contact, 20 why did you think John Daniels the next day wouldn't 21 talk to you on the phone unless Woody was there? 22 • agreement to make this happen? A. Because I talked to him for five minutes. 23 And in the history of working in narcotics, 24 call somebody asking them to sell more narcotics when 25 you only know them for five minutes . MARTINA REPORTING SERVICES (239) 334-6545 you don't 238 • 1 Q. You had never met Theresa Nowling before . 2 A. That's correct. 3 Q. But you're saying that on that day you were 4 • 5 A. It was arranged. 6 Q. So what you meant to say is, the reality is, 7 your arrangement was with John Daniels and you had no 8 knowledge where he was getting those pills from until 9 Theresa Mary Nowling showed up. 10 A. That's correct. 11 Q. And is it fair to say that you decided to 12 arrest her because she was there and she touched money 13 and that you knew it was her pills? 14 15 16 17 A. She handed me the pills directly and accepted the money directly from me. Q. Okay. Then i t went back and forth between her and John Daniels, 18 A. Yes. 19 Q. Okay. right? Did you happen to see John Daniels 20 withhold any of the money that he was shuffling back 21 to Mary? 22 A. I 23 Q. Did you know how many pills Mary Nowling's 24 • asking her to sell you 150 pills? 25 did not. prescription was filled out for? A. One of them I know was 210, if I MARTINA REPORTING SERVICES (239) 334-6545 recall 239 • 1 2 3 Q. pronouncing it right? A. Van Houten. 5 Q. Van -- Detective Van Houten. Did you both go 6 through that audio track? 7 I guess he was already listening to it. 9 10 A. day, I Did you listen to this? -- I don't remember. Or On that particular I don't remember. Q. Okay. Did Van Houten, Detective Van Houten, 11 ever ask you to explain any parts of that conversation 12 there? 13 A. No. 14 Q. Do you know if he had any problems concerning 15 between who was speaking? 16 MS. 17 19 20 21 FITZGERALD: Objection, Your Honor, speculation. 18 • When you debriefed with Van Houten -- am I 4 8 • correctly . THE COURT: Sustained. BY MR. McNEELEY: Q. not, Did you ever know if he listened to that or after t h at night? 22 A. I don't know. 23 Q. Did you l isten to it after that night? 24 A. I 25 Q. That's the first time since the last -- since listene d to it today . MARTINA REPORTING SERVICES (239) 334 -6545 240 • 1 2 A. No, earlier today when I 3 Q. Oh, okay. authenticated it. Do you try to assess a potential 4 target for dangerousness before you engage in 5 undercover activity? 6 A. I'm sorry, 7 Q. When you were targeting an individual in your can you -- I'm sorry? 8 capacity as a narcotics undercover agent, 9 assess them as a threat so that you walk into 10 • when it happened? something you don't know what you're doing? 11 A. Yes. 12 Q. Okay. MS. 13 14 do you ever What factors went into -- going to object. 15 Your Honor, FITZGERALD: Your Honor, I'm May we approach? THE COURT: Corne on up. (Thereupon, a sidebar conference was held, 16 17 18 out of the hearing of the jury, 19 Your Honor, FITZGERALD: I think we're 20 getting into dangerous ground about her prior 21 criminal history. 22 one, 23 if that's appropriate. 24 • MS. as follows:) 25 so I I know she doesn't really have would object to that because that's -- THE COURT: Where are you going? going everywhere but this case. Where are you MARTINA REPORTING SERVICES (239) 334-6545 You're 241 • 1 going? 2 MR. I'm trying to establish that 3 the reality is they were really going there for 4 him, 5 so when they start talking about THE COURT: I don't care who they went with. 6 She handed the pills to him, 7 Where are yo u goi n g to ge t 8 9 10 MR. McNEELEY: Okay. she took the money. around that? I'm going to look through my notes and see if I have any other questions. 11 • McNEELEY: THE COURT: Don't, don't go into anybody's 12 history, don't go into who was who or anything 13 else, because I mean we've got a whole bunch of 14 other things here, so don't go into it. 15 MR. 16 (Sidebar conference concluded.) McNEELEY: Okay. 17 18 19 20 Q. McNEELEY: Is it typical that you would use a confidential informant more than once? 21 A. Sometimes, 22 Q. And the more time you're with them, 23 • BY MR. productive; 24 A. 25 with . yes. it's more is that a correct statement? It all depends on the person you're going Sometimes if an internal goes smoothly, MARTINA REPORTING SERVICES (239) 334-6545 the 242 • 1 person that you buy narcotics from might just go ahead 2 and say, 3 through him any more." 4 sometimes three times, 6 It all 7 basis. 9 10 • you don't have to go Others you have to use a CI once, 5 8 • "Go ahead and call me, Q. sometimes for an entire case. it all depends on, Okay; twice, i t ' s on a case-to-case How long do you estimate that they were looking for the -- that the pills were unfound, so to speak? How long were they looking for them? 11 A. Three to five minutes. 12 Q. Did you get the impression from the fact that 13 John -- like who asked whom "where are the pills" 14 first? 15 A. 16 them. 17 Q. And what did John say? 18 A. "No, 19 Q. Okay. I believe Mary asked John if he still had I gave them back to you." At any tim e did John Daniels, from 20 your -- I mean you didn't r ea lly know him that well, 21 according to your testimony, 22 at all that the pills were unfound? but was he getting irate 23 A. No. 24 Q. Did he seem -- 25 A. They were both raising each other. MARTINA REPORTING SERVICES (239 ) 334-6545 I mean, 243 • 1 they honestly sounded like a bickering married couple . 2 That's like what they sounded like, 3 show "Everybody Loves Raymond," that's what it sounded 4 like. 5 Q. 6 • And a lot of that dead space on the audio, what is everybody doing in the car? 7 A. I was trying to count the pills. 8 Q. Just to make sure if you had 150? 9 A. Correct. 10 Q. What was the -- what was Mary Nowling and 11 Jeff 12 Mary Nowling doing while you're counting them? I keep sayi ng Jeff. What was John Daniels and 13 A. I believe just talking. 14 Q. Do you remember what they were talking about? 15 A. No. 16 Q. Do you think that since you remember that 17 Mary Nowling was talking about Alabama, 18 might have been part of a discussion they were having 19 reference to Alabama? 20 • like on the TV A. that that I was trying I beli e ve he talked abo ut it. 21 to block out the majori t y of the conversation, because 22 I had miscounted -- I already miscounted two or three 23 times because everybody was talking. 24 count little pills on a small picture frame that was a 25 pain in the butt . I was trying to MARTINA REPORTING SERVICES (239) 334-6545 244 • 1 Q. Okay. 2 to John Daniels pri o r to this date, 3 to record any o f A. I did not, 5 Q. So, no, but I was the undercover. for exampl e -- o r factuall y , the only 6 reason that you were rec eiv ing information was from 7 the confidential informant because you're saying that 8 all the transactions or all the promises to transpire 9 were going through Woody and Jo hn Daniels, so whatever 10 Woody was telling y o u, 11 conv e rsation -- 13 MS. 15 THE COURT: 16 MR. 19 Your Ho nor, I'd object to compound . MR. 18 if you didn't record the FITZGE RAL D: 14 17 • did you ever seek those? 4 12 • For the phone ca lls that the CI made McNEELEY: I ' l l simplify it, Your Honor. Sustai n ed. McNEELEY: I ' l l simplify it, Your Honor. BY MR. McNEELEY: Q. Wood y , Your contact with John Daniels was through correct? 20 A. That's c orrect. 21 Q. You did n ot rec o r d th ose conversations, 22 corre c t? 23 A. I 24 Q. So your only knowledge of the transaction 25 did n ot , no. parame te rs was t h roug h Woo dy, or the confid e ntial MARTINA RE PORTIN G SERVICES (239) 334-6 545 245 • 1 A. Correct . 3 Q. Okay. Do you remember Mary Nowling saying, 4 especially on the tape, 5 maybe "Don't you yell at me"? "Don't y'all yell at me," or 6 A. Yeah, 7 Q. It doesn't help when you're yelling. "It doesn't help when you're yelling." Because she was saying that as she was looking for it. 9 A. Correct. 10 Q. What were the things that John Daniels was 11 12 saying? A. I -- I don't remember. Just basically, 13 don't have them," and then I 14 out his pocket s and was -- h e pu t 15 pock e ts, 16 out and said, 17 and this." 18 19 21 A. Yeah, 25 his contents of his "No, this is what I got; i t ' s this, this more or less raised his voice. Okay. 24 think he -- he emptied Then h e walked back and he wasn't yelling, Q. 23 "I put t hem on the front seat after he stepped 20 22 • if you will? 2 8 • informant, Be cause h e was frustrated? it l ook ed like i t, a ppeared that they were both frustrated. Q. Okay. MR. McNEELEY: other questions, All ri ght. Thank you. Your Ho nor . MARTI NA REPORTING SERVICES (239) 334 -6545 No 246 • 1 THE COURT: 2 MS. 3 Anything further? FITZGERALD: Nothing further from the State for this witness, 4 THE COURT: 5 may step down. Your Honor. All right. 6 THE WITNESS: 7 (Witness excused.) Detective Armato, you Sorry I was late. 8 9 • Why don't we take about a 10 ten-minute break. 11 jury room. 12 amongst yourselves. 13 (Thereupon, 14 courtroom at 3:45p.m.) 15 I ' l l send you back into the Please do not discuss this case THE COURT : the jury was excused from the She has to go back. 16 (Thereupon, a brief recess was taken.) 17 (Thereupon, 18 courtroom at 3:55p.m.) 19 THE COURT: the jury was assembled in the Please are seated. They're 20 standing out of respect for the jury. 21 have to stand. 22 Please call your next witness. 23 MS. 24 • THE COURT: 25 FITZGERALD: You don't Your Honor, the State calls Detective Raymond Van Houten. THE COURT BAILIFF: Stand here for a moment MARTINA REPORTING SERVICES ( 239) 334-6545 247 • 1 2 and raise your right hand, Thereupon, 3 RAYMOND VAN HOUTEN, 4 after having been first duly sworn or affirmed, 5 examined and testified as follows: 6 THE WITNESS: 7 Good afternoon, 8 9 10 • Yes, I was do. Judge. DIRECT EXAMINATION BY MS. Q. FITZGERALD: Good afternoon. Will you please introduce 11 yourself to the jury and spell your last name for the 12 record? 13 14 A. I'm Detective Raymond VanHouten, V-A-N H-0-U-T-E-N. 15 Q. Where are you currently employed? 16 A. Lee County Sheriff's Office, Narcotics 17 Division. 18 Q. 19 How long have you been employed with the Lee County Sheriff's Office? 20 A. From October 2005 until today, 21 Q. Do you have any prior l aw enforcement 22 A. Yes, 23 Q. -- experience? 24 • please . 25 so -- I do. And where was that? A. I have 26 years of prior law enforcement MARTINA REPORTING SERVICES (239) 334-6545 248 • 1 experience, 2 here in Florida i n 3 Tribe of Florida wh e re I was a supervisor. 4 for the Cape Coral P o lice Department and the Glades 5 County Sheriff's Offic e . 6 • I came down '91 a nd worked for the Seminole I worked And sinc e y o u joined the Lee County Sheriff's 7 Office, 8 Divisio n ? 9 A. Sinc e June o f la st year. 10 Q. Appro x imate l y how many undercover drug deals how l o n g ha v e y o u been in the Narcotics 11 have you participated in during your employment with 12 the Lee County Sheriff's Office? 13 14 A. I'd say, four a week, estimated, If you can estimate. probably say nine months, so a l o t. 15 Q. Okay. 16 A. A hundred plus. 17 Q. Okay. 18 A hundred p lus ? Do you usually pose as a buyer or do you sometimes pose as a seller ? 19 A. Most o f the time we pose as buyers. 20 Q. When you c o nduct an undercover operation, do 21 you just go to areas that are known to be high crime 22 areas of drug activi t y or do y ou target specific 23 individuals t o buy f ro m? 24 • Q. starting in New Yo rk City. 25 A. Th e ma j o rit y that' s do n e , individuals to buy f rom. we target We use different means to MARTINA REPORTI NG SERVICES (239 ) 3 3 4 -6 5 45 249 • • 1 2 3 Q. In what capacity were you working for LCSO back on September 18th, 4 A. I 5 Q. Okay. 2009? was an undercover officer. And did you participate in an 6 undercover operation that was located at Morse Shores 7 Plaza in Fort Myers in the afternoon, 8 12:50 p.m.? about 9 A. Yes, 10 Q. Okay. 11 A. I'm the case agent in that case. I did. What was your role in this operation? My role was 12 to sit in the monitored vehicle and listen to the 13 conversations between the target and the undercover 14 officer. 15 Q. 16 17 Is there anything specific that you're listening for? A. Yes. My specific thing to listen for is the 18 safety of the officer that's involved, 19 the key words that he may be in trouble, 20 key words to let us know if he needs help, 21 if we need to, 22 Q. 23 • target those people . Okay. so we listen to he gives us and then we we rush in and save him. And how were you able to observe any of the transaction that occurred that date? 24 A. No, 25 Q. Following the transaction, I don't think so. did you have MARTINA REPORTING SERVICES (239) 334-6545 250 • 1 contact with Detective Jonathon Armato? 2 A. Yes, 3 Q. And where did you have contact with him? 4 A. We returned back to our pre -- prior to the 5 deals, 6 meet up. we go to a predetermined meet location where we we go back to that 8 predetermined meet l ocat ion wh ere we meet again, 9 he handed me the evidence he had purchased. 10 Q. After -- and in this case, and did you -- you 11 took possession of the eviden c e that Detective Armato 12 had collected? 13 A. 14 15 Yes, MS. I did. FITZGERALD: 16 THE COURT: 17 MS. 18 Your Honor? 20 21 May I approach defense counsel? 19 • did. And th e n after t h e dea l , 7 • I FITZGERALD: THE COURT: BY MS. Q. You may. Ma y I approach the witness, You may. FITZGERALD: Detective VanHouten, I'm showing you what 22 has been previously marked as State's Exhibit 3. 23 you recognize it ? 24 A. Yes, 25 Q. What is it ? I do. MARTINA REPORTING SERVICES (239) 334-6545 Do 251 • 1 that were given to me by John Armato and the bottle of 3 the pills that the pills came to him in. 5 Q. All right. Did you seal that in that evidence bag? 6 A. Yes, 7 Q. And how do you know? 8 A. Has my initials on the top. 9 Q. Okay. I did. Just explain for the jury, when you 10 collect evidence and you put it in a bag, what happens 11 to the evidence from that point? 12 A. We fill out an evidence sheet, tells us We fill out an evidence sheet, it tells us 13 sorry . 14 basically we put on what we received and who we 15 received i t from, 16 certain other narcotics, we do field testing for, 17 marijuana or whatever. 18 h o w many, and if we conducted a evidence bag goes into our evidence department. 20 drop it into our evidence section. Q. Okay. Is it in substantially the same condition look at it. 23 that i t was when you collected i t from Detective 24 Armato? A. Yep . We Now I'm going to have you take a good 22 25 like And then we put it in an evidence bag and the 19 21 • It's the evidence bag containing 150 pills 2 4 • A. Yes, it is. MART I NA REPORTING SERVICES (239) 334-6545 252 • 1 Q. 2 Now, was this -- the contents of what's been marked as State's Exhibit 3 which you were just 4 looking at, 5 Department of Law Enforcement for testing? was that eventually sent to Florida 6 A. Yes, 7 Q. Okay. it was. And to your knowledge, did anybody other than an FDLE chemist open this bag? 9 A. To my knowledge, 10 Q. Okay. 11 n o. And let me approach you again. Would you be able to tell from this bag if 12 that had happened or how many times i t has been 13 opened? 14 A. 15 resealed, 16 person's initials who opened it, Any time an evidence bag is opened and there should be evidence tape on it with the 17 Q. Okay. 18 A. I 19 Q. Okay. 20 21 • Thank you very much. 3 8 • Okay. and this is one time. And is that what FDLE signed? don't know who the affiliate is, but Thank you. Detective Van Houten, how common is i t to use confidential informants in narcotics investigations? 22 A. Done on a daily basis. 23 Q. Okay. 24 A. Because confidential informants are able to 25 Very common. And wh y is that so common? introduce undercover operatives to the targets better, MARTINA REPORTING SERVICES (239) 334-6545 253 • 1 because they know the streets a lot, 2 the streets, 3 dealers, 4 able to introduce us easier than what they call a cold 5 contact, 6 hey, 7 8 do you have any drugs, Now, anything like. are confidential informants assigned to a particular detective typically? Typically, 10 Q. Okay. yes. And in this case there was a confidential informant; 12 A. Yes, 13 Q. Okay. is that correct? there was. What, did he belong to you or 14 Detective Armato as far as a control agent, 15 the correct term? 16 A. Yes, 17 Q. Yes. 18 A. No, 19 Q. And why is it that you were using a Were either of you his control agent? we were not. confidential informant when you weren't the 21 controlling agent? 24 25 A. is that control agent. 20 23 they're for me to walk up to somebody and just say A. 22 • they know the they associate with them and they 9 11 • Q. they know the streets, they live out on A lot of times what happens is we have some confidential inform a nts who produce more than others. If I have a good confidential informant that's producing a lot, then I get a lot of cases. MARTINA REPORTING SERVICES (23 9) 334-6545 254 • 1 If -- so what we do is we use other confidentia l 2 informants so that I don't get stacked with 15, 3 20 cases and everybody else doesn't have any cases. 4 5 6 7 I Q. guess. So there's --one person isn't bogged down with cases A. Right. 9 Q. -- while the other one is just relaxing without any? 11 A. Correct. 12 Q. All right. 13 14 What makes people motivated to become a confidential informant? A. There's a lot of reasons why they become 15 confidential informants, 16 one, 17 has charges against him or her, 18 work those charges off. 19 • up, 8 10 • So we just use it so we can split the cases but the most common ones are, either the person has been arrested and now he and they're going to Working the charges off means is that for 20 everything that they bring to our table, 21 typically we don't promise them anything, 22 explain to the Stat e Attorney's Office or we try to 23 get a leniency charge on what they've already be e n 24 charged with. 25 The other way is for cash, if we -but we we pay money for MARTINA REPORTING SERVICES (239) 334-6545 255 • 1 2 3 Q. And do you know what the motivation for the confidential informant used in this case was? 4 A. Cash. 5 Q. Okay. 6 A. For this case here? 7 Q. Yes? 8 A. I 9 Q. Okay. 10 • information . Do you know how much he was paid? don't remember. Is there a typical amount, amount that confidential informants are usually -- 11 A. It's $100 a deal. 12 Q. Okay. 13 A. That's the starting one, 14 15 And that's the typical? Q. Okay. MS. FITZGERALD: THE COURT: 19 MR. McNEELEY: • Cross-examination. Thank you, Your Honor. CROSS-EXAMINATION 20 22 I have no further questions at this time. 18 21 but it could go up from there. 16 17 a standard BY MR. Q. McNEELEY: Detective, you were saying that the reason 23 why it wouldn't have been uncommon for a CI to be used 24 by another person -- you have your own CI, 25 specifically, right? MARTINA REPORTING SERVICES (239) 334-6545 you do 256 • • A. I d o h ave my own Cis , 2 Q. Okay. yes . And yo u were saying it wouldn't b e 3 uncommon for you to use other Cis, 4 have your own C I? 5 A. Co rr ect . 6 Q. How do you t hen k no w th e 7 the contr o l 8 specifica l l y I 9 name is? agent and the CI even though you relationship betwee n in this case, guess Wo o d y Wo od ward, 10 A. What do you mean how would I 11 Q. Well, or wha t ev e r your question from the state attorney was, was he motivated by cash or money. 13 even t a lked to the CI, 14 motivati o n was cash ? 15 A. the know his -- 12 You hadn't so how would you know his We know his motivation is cash because the 16 person who is his controlling agent also worked with 17 me on my t e am. 18 Q. And so you're saying here today that somebody 19 else told you h e 's not goin g t o be in court, 20 got paid cash ? 21 22 • • 1 A. Som e body else told me? Well, that he we know h e' s getting paid cash. 23 Q. How d o you know that? 24 A. We've used hi m bef ore . 25 Q. Okay. Wh y d o es that mean that you u se d h i m MARTINA REPORT IN G SERVICES (2 3 9) 334 - 6545 257 • 1 before, A. 2 3 Q. sometimes? A. Yes. 7 Q. It might they be motivated sometimes by something 1 ike, say, revenge? 9 MS. FITZGERALD: 10 MR. McNEELEY: Objection, Well, Judge, speculation. he gave his 11 opinion as to what reason a CI might come on 12 board. 13 possible reasons why a CI would come on board . I'm exploring the idea that there's other 14 THE COURT: 15 THE WITNESS: 16 18 19 Go ahead. Yes. BY MR. McNEELEY: 17 Q. Could revenge be a reason why someone does A. Yes, it? sir. 20 THE COURT: 21 THE WITNESS: 22 MR. McNEELEY: 23 24 • Is it dangerous for confidential informants 6 8 • Because if he would have been arrested prior to us using him, we would have known about it. 4 5 that means this time is for cash? 25 Could anything be a reason? Yeah. Yes, sir. Yeah. BY MR. McNEELEY: Q. And you wouldn't know what his specific reason was because he wasn't your agent or informant. MARTINA REPORTING SERVICES (239) 334 - 6 545 258 • 1 A. the reason why the confidential informant is working 3 with us. 5 If i t ' s working off charges, we know they're working off charges. 6 Q. Okay. 7 A. We know that because we don't pay them at the 8 9 10 end of the deal. Q. Okay. 11 A. 12 remember. 13 Q. 14 Did you personally pay the confidential informant in this case? I don't think so. I'm not sure. How do you know he got paid then, asking. I can't is what I'm You're testifying here -- 15 A. I 16 Q. Okay. 17 don't. I don't. Thank you. You said that one of the focuses that are -- 18 or one of the methods or processes that you go through 19 is that you are targeting individuals, 20 21 • we sit down as a team and we'll go over 2 4 • Well, right? In your undercover operations you are targeting specific people -- 22 A. 23 Q. 24 A. At times. 25 Q. At times. Uh-huh. at times. Or other times you are going up MARTINA REPORTING SERVICES ( 239 ) 334- 6545 259 • 1 and down the road and just randomly seeing wh o wo u ld 2 want to purchase or buy drugs in a 3 let's say? 4 A. Yes, sir. 5 Q. So a large portion of your work is you t arget 6 A. Yes, 8 Q. Do you -- and you would go through exer c ises sir. in order to figure out whether or not a person is 10 going to be a valid target, 11 about this person, like you'd want to know right? 12 A. I 13 Q. Do you engage in any investigative background don't know what y o u mean by -- 14 checks or wo rk o r 15 you consider to be potential targets in an undercover 16 operation? 17 A. Yes, 18 Q. Okay. anything relating to the pe o p l e t h a t sir. In this particular case you're the 19 case detective, 20 parameters about the case; 21 A. Yes, 22 Q. Okay . 23 • individuals. 7 9 • high drug area, that mea n s y o u should know all t h e is that correct? sir. Your target originally for this investigation was Jeff -- or John Daniels. 24 A. Yes, 25 Q. And the reas o n wh y y o u thought the other sir. MARTINA REPORTING SERVICES (239) 334-6545 260 • 1 female might be b y the name of Theresa was you heard 2 i t from the confidential informant. 3 statement? 4 A. Yeah, 5 Q. Did you ever listen in on conversations between the confidential informant and John Daniels 7 prior to this date? 8 A. No. 9 Q. Are you aware that they took place? 11 12 THE COURT: What took place? BY MR. McNEELEY: Q. Any conversations between John Daniels and 13 the confidential -- I'm sorry, 14 confidential informant, 15 16 A. I John Daniels and the in setting -- didn't necessarily l i sten in on the conversations. 17 When I -- when we met with the confidential 18 informant, 19 "Where are you, 20 • believe it was. I 6 10 • Is that a fair he typically would call them and say, where are you?" And then we'd meet up. He would set the time 21 and date and how mu ch , 22 we wanted to buy and how much the person wan te d p er 23 pill. 24 Q. 25 Okay. how much the person -- how much And is there a type of -- is there -- it seems -- and i t would be more a prestigi ous , MARTINA REPORTING SERVICES (2 39 ) 334-6545 let's 261 • 1 say, 2 lot of drugs versus a person who doesn't have that 3 many drugs. 4 • A. Is that a fair statement? No. Some -- they come with 5 come with a 6 little drugs. lot of drugs, sometimes they sometimes they come with a 7 Q. Right. 8 A. Sometimes we work towards a lot more drugs. 9 Q. But if you were motivated to be compensated 10 for your time in being an undercover agent -- or 11 confidential informant, 12 MS. 13 THE COURT: 14 MR. McNEELEY: 15 16 I FITZGERALD: should say Objection, Your Honor. Sustained. All r i ght. Let me ask it a different way. BY MR. McNEELEY: 17 Q. You said that the pay scale differs. 18 A. Uh-huh. 19 Q. Per confidential informant, 20 A. Yes. 21 Q. Does that mea n it differs potentially in how 22 productive they could be, 23 way of quantity? 24 • to have a CI come to you with a person who has a 25 A. right? not just by numbers, but by It changes when the person reaches a trafficking level amount of drugs. MARTINA REPORTING SERVICES (239) 334-6545 262 • 1 Q. Okay. 2 A. So, with cocaine and we buy an eight ball of cocaine, 4 which is a felony, 5 $100 a deal. but i t ' s not trafficking, it's a 6 Q. Okay . 7 A. When we get to that trafficking level or if 8 we can set a deal up for trafficking, 9 give him extra money. 11 Q. okay, then we So there is an inborn incentive for the CI to make sure he brings you trafficking cases. 12 A. I guess you could say that, 13 Q. You would agree that getting more money might yeah. 14 be a motivation for someone making sure you that get 15 trafficking cases as opposed to just a simple sale? 16 A. Well, I agree that i t ' s a motivation, but I 17 don't agree with what you're saying as far as i t ' s an 18 incentive to get you trafficking incentive. 19 it upon what the dealer is going to give him. 20 21 22 23 24 • for instance, we do a deal 3 10 • let's say, 25 We've done deals where we say, get 28 grams of this?" Q. Right. Hey, We base can we And they say "no." Why do you mention 28 grams as a number? A. It's -- i t ' s over an ounce, just a weight that we use for trafficking. MARTINA REPORTING SERVICES (239) 334-6545 263 • 1 Q. is the person who makes all the contacts with the 3 potential buyer, 4 person to your team, 5 that? 6 A. Yes, 7 Q. So -- 8 A. Most of the time. 9 Q. I'm sorry, 10 A. Most of the time. 11 Q. Okay. and they're the ones who bring the they set up the deal, they do all sir. didn't hear the last part. I Most of the times. So if they have control over that aspect and 13 they get more money in exchange for having the amounts 14 raised, 15 be an incentive to bring you trafficking cases, 16 17 i t would make sense that they -- there would MS. Honor, FITZGERALD: THE COURT: 19 argumentative. 21 22 MR. BY MS. Q. I'm going to object, right? Your asked and answered. 18 20 • But didn't you say earlier that the CI 2 12 • Okay. Sustained. McNEELEY: Yes, Now you're getting Your Honor. FITZGERALD: What was -- did you listen to the tape, the 23 transaction on the 18th contemporaneously that it was 24 happening? 25 A. Yes. MARTINA REPORTING SERVICES (239) 334-6545 264 • 1 2 And did you ever hear your officer mention his key word for help? A. No. 4 Q. When he came back and debriefed with you, did 5 you ask him what had happened during times that 6 perhaps you couldn't hear? 7 A. No. 8 Q. Was there ever a time you that couldn't hear 10 or understand who was speaking? A. There was -- I really don't listen to the 11 tape to see who's speaking, 12 whatever. 13 I 14 word or tell me a word that we know to be Q. A safe word? 16 A. A safe word . 18 who's in the car or who's listen for his voice to tell me a takedown 15 17 anything like that, Q. 19 • Okay. 3 9 • Q. I'm not listening for voices or other than his. Other than his, okay. When Detective Armato came back to the meet 20 up l ocatio n, was -- was the confidential informant 21 with him ? 22 A. Yes, 23 Q. And did you deb r ief him? 24 A. Yes, 25 Q. Do you remember hearing on the -- or did you he was. I did. MARTINA REPORTING SERVICES (239) 33 4-6545 265 • • 1 hear of the transaction that a female asked about a 2 U-haul, 3 anybody in the vehicle knew where a U-haul place would 4 be? asking if 5 A. No. 6 Q. Do you remember the female vo ice on the tape 7 saying -- or asking where there was a Boost mobile 8 store? 9 A. No. 10 Q. When you review and debrief, does the 11 extraneous information that doesn't i mmediately make 12 an impact on your case, does it just get discarded? 13 A. What information would that be? 14 Q. Ho w do you verify that you're not being set 15 up by the confidential informant? 16 How would you know that they're not specifically 17 leading you on a false path? 18 19 20 • asking if the officer -- wel l , A. That's what I mean. How do we know the confidential informant is not leading us on a false path? Q. Let me give you a scenario, 21 me how -- what you just described, 22 this person. okay? how you would catch 23 I'm your co n fidential informant 24 THE COURT: 25 MS. No, FITZGERALD: no , no, And tell no. Your Honor, I'm going t o - - MARTINA REPORTING SERVICES (239) 334-6545 266 • 1 2 3 4 THE COURT: let's go. BY MR. McNEELEY: Q. For your police investigation, you are 5 unconcerned for the motivations of the relative 6 people, 8 right? If a person -- if you have probable cause to believe someone violated the law, you arrest them. 9 A. Yes, 10 Q. Do you ever -- with knowledge of why a person sir. 11 might have a vulnerability, do you set them up for a 12 transaction knowing that your real purpose is to get 13 them to give you information you would -- otherwise 14 wouldn't have? 15 16 MS. 18 19 20 21 FITZGERALD: Your Honor, objection. Confusing. 17 • If you want to ask him questions about this incident, 7 • No . THE COURT: Sus tai ned. BY MR. McNEELEY: Q. How do you g et confidential informants? Name different ways you can get one. A. We can get one because they've been arrested, 22 gone through the court system, 23 defense attorney will tell them to work for us because 24 i t ' l l soften the blow at times. 25 and either their Certain things we ca n't do. We can ' t promise MARTINA REPORTING SERVICES (239) 334-6545 267 • 1 a confidential informant that the State will or will 2 not prosecute. 3 4 confidential informants? A. Yes, 6 Q. Did you have a written agreement with the with the State•s approval. informant in this case? 8 A. No. 9 Q. r•m sorry, 10 A. No, 11 Q. Do you remember having a conversation with I didn•t hear you. we didn•t. He got paid money. 12 Detective Armato when he returned to the meet location 13 wherein he would have had to investigate who the 14 female was? 15 A. Yes. 16 Q. Was that because that he did not know her 17 name? 18 A. 19 20 21 22 • Do you ever have written agreements with 5 7 • Q. At the beginning, in the first meet he did not know her full name. Q. Okay. know that, A. And did the confidential informant know her name? I believe they found the defendant He knew 23 through an address they ran on public records or on 24 our records system. 25 Q. Okay. So is your answer then that no -- this MARTINA REPORTING SERVICES (239) 334-6545 268 • 1 confidential informant didn't give you any information 2 about who the female was? 3 A. 4 that he knew her through her daughter and her 5 daughter's name. 6 the address. 7 • And we ran the daughter's name and And I believe, 8 told me, 9 address check. from what Detective Armato was that they found her through records on an I wasn't there for that. I was 10 already on my way to process it and John came to me. 11 Detective Armato carne to me later and said we found 12 her. 13 Q. Why would it be that you wouldn't -- or why 14 in this case did you not record the conversations 15 between the confidential informant and John Daniels 16 setting up the transaction on September 18th? 17 18 A. Because we don't record all the conversations. 19 Q. That's the reason? 20 A. Yeah. 21 Q. What happens if -- well, 22 • He gave information stating that it was doesn't it seem prudent that you should? 23 A. At times we do; 24 Q. Do you know the reason why you didn't this 25 time? at times we don't. MARTINA REPORTING SERVICES (239) 334-6545 26 9 • 1 Could we approach? 3 THE COURT: 5 BY MR. Your Honor, objecti o n. Sustained. McNEELEY : Q. Do you know how many conversations took place 6 between John Daniels, 7 and Woody, 8 transaction that was supposed to occur on 9 September 18th? CI, the co-defendant in this case, prior to September 18th concerning this 10 A. Woody CI? 11 Q. Yes. 12 A. Oh, 13 Q. When you asked him, 14 okay. I don't know. Woody, 15 A. I don't know who the CI is. 16 Q. Oh, 18 CI -- were you saying that Woody is not the CI in this case? 17 • FITZGERALD: 2 4 • MS. you don' t know his name, okay, CI. It's typical that the CI is known to the participants of the tra nsa ctioni is th a t correct ? 19 A. Is i t typica l 20 Q. That the confidential informant that you're that what? 21 using to set up a meet location with someone you don't 22 know is known to the people that he's setting the meet 23 up wit h? 24 A. 25 Well, I know t he c onfidential informant, just not g o ing t o g i v e you his name. MARTINA REPORTING SERVICES (23 9 } 33 4 -6545 I'm 270 • 1 2 • Okay. Have you ever had a conversation with him? 3 A. Sure. 4 Q. About John Daniels? 5 A. Yes. 6 Q. Had you ever had a conversation with him 7 • Q. about Mary Nowling? 8 A. Yes. 9 Q. Okay. How would you have had a conversation 10 about Mary Nowling if the CI, who wasn't yours, 11 know her name? 12 A. Well, we had a conversation afterwards. 13 Q. Okay. didn't Were you anticipating -- well, when 14 are you aware that the last time that this 15 confidential informant called John Daniels prior to 16 the September 18th date, 17 indeed a call between John Williams -- or, 18 John Daniels and the CI? 19 called the actual co-defendant, that it was -- that it was excuse me, That you suspected the CI John Daniels, right? 20 A. Yes. 21 Q. Because that's what he told you he did. 22 A. Correct. 23 Q. Okay. Did he ever give you the reasons why 24 the co-defendants in this case were willing to sell 25 drugs to him or willing to sell the prescription or MARTINA REPORTING SERVICES (239) 334-6545 27 1 • 1 2 3 FITZGERALD: 5 MR. McNEELEY: 6 asked it, 7 motivation. Your Honor, And speculation. THE COURT: 9 MR. McNEELEY: witness, I Your Honor, 8 calls Sustained. just want to know if he if he ever asked his Sustained. Your Honor, may I approach the please? 11 THE COURT: 12 MR. 13 Objection, for hearsay. THE COURT: Sure. McNEELEY: Okay. BY MR. McNEELEY: 14 Q. Sir, 15 A. It's the evidence purchased. 16 Q. That's the exact same thing that was sold to 17 what was this again? your undercover agent, What was that? right? 18 A. Correct. 19 Q. Do you remember hearing a comment on the 20 audio that went along the lines of your detective 21 saying "Hey, there's five 25s here"? 22 A. No, 23 Q. What would that mean to you if someone said 24 • MS. 4 10 • the pills? 25 I don't recall that. "25s"? A. That would me an -- if he used it i n that MARTINA REPORTING SERVICES (239) 334-6545 272 • 1 terminology, 2 pills mixed in with what he was buying. 3 Can you please look at that evidence and tell us if there's any differences in those pills 5 or if they are uniform throughout? A. You actually have to -- I could te l l you h o w 7 you could tell, but I can't really see them in here 8 now. 9 Q. 10 this? 11 A. 12 Are you aware that there's different pills in If there are in here, they're going to be marked different. 13 Q. They would have been marked differently? 14 A. Uh-huh. 15 have an A, In other words, an M, a 15, 30, each pill should a 25 on them. Each pill -- each different manufacturer 16 17 places a different pill number on them, milligrams and 18 stuff like that. 19 I can't see them right now, 20 blind, 21 look at them, 22 marked with. 23 • Okay. 4 6 • Q. that would mean that there's differe n t Q. because I'm half but if you were to take them out of here and Okay. you would be able to see what they are When you prepared that evidence, 24 right, you were the one who processed that evidence 25 after the transaction? MARTINA REPORTING SERVICES (239) 3 3 4-6545 273 • 1 A. Yes, 2 Q. Did Detective Armato tell you that there were 3 two different types of pills in the quantity he 4 received? 5 A. 6 7 9 he said, recall him he handing me the pill bottle, "Here you go." I asked him what the count was. I weighed it, photographed it, placed it into evidence. I 10 counted it, weighed it, photographed it and placed it 11 into evidence, but I didn't look to see if there was 12 25 or 30s in there. 13 Q. Okay. Did you ever interview Mary -- did you 14 ever have an occasion to interview Mary Nowling after 15 her arrest or involvement in this transaction? 16 A. I don't believe so. 17 Q. Would she meet the criteria for someone 18 becoming a confidential informant? 19 20 MS. 22 23 FITZGERALD: Objection, Your Honor. Relevance. 21 • I don't recall that. I 8 • sir. THE COURT: Sustained. BY MR. McNEELEY: Q. What would be the typical amount a 24 confidential informant would receive for a trafficking 25 amount of drugs? MARTINA REPORTING SERVICES (239) 334-6545 274 • 1 A. $200. 2 Q. What's the maximum you ever paid out to a 3 confidential informant for a transaction? 4 THE COURT: 5 MS. Your Honor, this confidential informant has been working with them 7 for some time. 8 THE COURT: 9 MR. McNEELEY: 12 13 14 15 Where is that relevant? It might be incentive towards setting up the arrangement. 11 THE COURT: You don't know what he was even paid here. BY MR. McNEELEY: Q. Who is the -- who was the CI named in this account as control agent? 16 A. Detective Robert Smith. 17 Q. Do you know if he still uses the confidential 18 informant mentioned in your report? 19 A. No, 20 Q. Do you know why? 21 A. Yes. 22 Q. Does it have to do with -- does the reason 23 • FITZGERALD: 6 10 • Where is that relevant? he does not. why have to do with this case at all? 24 A. No, 25 Q. Does i t have to do with his reliability? sir. MARTINA REPORTING SERVICES (239) 334-6545 275 • 1 A. No, 2 Q. Does it have to do with his criminal 3 behavior? 4 A. No, 5 Q. Not the detective's, but the confidential 6 The detective's criminal behavior? informant. A. Oh, 8 Q. Was it a decision made by your department not 10 11 no, sir. No, sir. to use him anymore? A. No, sir. Do you want me to tell -- well, do you want me to tell you why? 12 MS. 13 THE WITNESS: FITZGERALD: Go ahead. The detective that uses the 14 confidential informant no longer uses him because 15 he now works for the state attorney in the 16 criminal career section. 17 narcotics. 18 • sir. 7 9 • sir. BY MR. He no longer works for McNEELEY: 19 Q. A step up in pay grade? 20 A. No, sir. 21 MS. FITZGERALD: 22 THE COURT: 23 MR. McNEELEY: 24 THE COURT: 25 MR. McNEELEY: Objection. This is the detective. Oh, the detective. No, we I'm asking about the agent. MARTINA REPORTING SERVICES (239) 334-6545 276 • 1 THE WITNESS: 2 Talking about the original detective that 3 MR. Yes. I apologize. mean the actual control agent. 6 confidential informant, 7 9 • McNEELEY: 5 8 yeah. controlled this confidential informant? 4 • The agent is a detective, THE WITNESS: No, I don't I mean the that person. he doesn't wo rk for the State. BY MR. McNEELEY: 10 Q. Okay. 11 A. Huh? 12 Q. Does the confidential informant work for your 13 14 Does he work for you anymore? agency anymore? MS. FITZGERALD: Your Honor, I'm going to 15 object as to confusing. 16 confusing the words "detective" and "controlling 17 agent." 18 THE COURT: 19 THE WITNESS: 20 THE COURT: 21 MR. 22 No other questions, I Sustained. I think Mr. McNeeley is Sustained. could answer that, Judge. It's not relevant. McNEELEY: All right. Your Honor, but I'd like 23 to please keep him under subpoena through the 24 courts and the State's subpoena for possible 25 defense case in chief. MARTINA REPORTING SERVICES (239} 334-6545 277 • 1 2 3 4 do it now. BY MR. Q. McNEELEY: Do you have any tape recordings between t he confidential informant and Mary Nowling in regards to 6 September 18th, which we're talking about in court? 7 THE COU RT: 8 THE WITNESS: 9 MR. Other than the tape t ha t No, McNEELEY: Other than the tape that is THE WITNESS: 12 MR. McNEELEY: 13 MS. FITZGERALD: 14 15 we have? sir. Yes. 11 16 No, sir. Okay. No other questions. Very brief follow-up. REDIRECT EXAMINATION BY MR. Q. FITZGERALD: You were discussing just a hypothetical with 17 Mr. McNeeley about cocaine and you mentioned the 18 28 grams. 19 cocaine a mounts? Is that a weight that is just relevant with 20 A. No, 21 Q. It's not? 22 23 • If you're going to do it, 5 10 • THE COURT: ma'am. You were talking about the eight ball and how Cis help you. 24 A. Oh, 25 Q. They get that, okay. and that 's not a MARTINA REPORTING SERVICES (239) 334-65 4 5 trafficking 278 • 1 amount, 2 mentioned 28 grams, 3 weights When you you're talking about cocaine 4 A. Correct. 5 Q. -- right? 6 A. Cocaine weight, 7 MS • FIT Z GERALD : 8 MR. McNEELEY: 9 THE COURT: 10 • but you mentioned 28 grams . yes. I have no other questions. No other questions. Detective Van Houten, step down. 11 THE WITNESS: 12 (Witness excused.) Thank you, sir. 13 14 15 16 THE COURT: witness. MS. All right. This is the lab, FITZGERALD: Yes. Call your next right? Matthew Putterbaugh. 17 18 19 20 21 22 23 24 • you may 25 MARTINA REPORTING SERVICES (239) 334-6545 279 • 1 Thereupon, 2 MATTHEW PUTTERBAUGH, 3 after having been first duly sworn or affirmed, 4 examined and testified as follows: 5 THE WITNESS: 6 THE COURT: 7 8 BY MS. Q. Please have a seat up here. FITZGERALD: Good afternoon. Will you please introduce 10 yourself to the jury and spell your last name for the 11 record. A. 12 13 15 My name is Matthew Putterbaugh, last name is spelled P-U-T-T-E-R-8-A-U-G-H . 14 16 Q. Mr. How are you currently employed, Putterbaugh? A. I'm employed by the Florida Department of Law 17 Enforcement here in Fort Myers at th e Regional Crime 18 Laboratory. 19 20 21 • do. DIRECT EXAMINATION 9 • I was Q. Okay. What are your specific duties at the Florida Department of Law Enforcement? A. What I do is I analyze evidence that's 22 submitted to the laborator y , 23 for the presence or the absence of controlled 24 substances. 25 Q. Okay. and what I do is I Is there a shorthand for Florida MARTINA REPORTING SERVICES (239) 334-6545 look 280 • 1 Department of Law Enforcement? 2 known? 3 A. It's commonly known as FDLE. 4 Q. All right. 5 with FDLE? A. About 12 years. 7 Q. Please describe t o the jury what type of 8 training you must have in order to qualify for your 9 position at -- with FDLE. A. Well, to qualify for my position you have to 11 have a 12 University of Central Florida in Forensic Science. 13 four-year science degree, Then I which I have from the underwent approximate l y a ten-month 14 training program with the Florida Department of Law 15 Enforcement involvi n g vari o us drug classes and 16 procedures in which to an a lyze them. 17 Q. Okay. And you said that your duties are to 18 basically analyze substances to determine if they have 19 any kind of narcotics in t h em; 20 A. That's corr e ct. 21 Q. Okay. 22 • How long have you been employed 6 10 • How is i t commonly is that corre c t? And h o w many t ime s have you done this type of testing? 23 A. Seve r al -- sev e r al thousand . 24 Q. All right. 25 Have y o u had oc casi o n to chemically analyze sub s tan c es to determine whether the MARTINA REPORTI NG SERVIC ES ( 2 39) 3 3 4 - 6545 281 • 1 substance contains Oxycodone? 2 A. Yes. 3 Q. And how many times have you done that 4 approximately? 5 A. There again, 6 Q. All right. 7 MS. 8 THE COURT: 9 MS. 10 • 13 May I approach defense? You may. FITZGERALD: May I approach the witness, THE COURT: BY MS. You may. FITZGERALD: Q. Mr. Putterbaugh, r•m showing you what has 14 been previously marked as State's Exhibit 3. 15 know what it is? 16 A. Yes, 17 Q. Okay. 18 A. This is the piece of evidence that was Do you I do. And how are you able to recognize it? 19 submitted by the Lee County Sheriff•s Off i ce for 20 analysis of the tablets that were contained in the 21 package. 22 Q. 23 24 • FITZGERALD: Your Honor? 11 12 several thousand. 25 Okay. And what is on that package that enables you to identify it as such? A. Well, the first thing I notice is the unique Florida Department of Law Enforcement case number MARTINA REPORTING SERVICES (239) 334 - 6545 282 • 1 which is assigned to each and every case. 2 notice my handwritten initials across the evidence 3 tape seal where I 4 drugs. 5 Was this exhibit in the same condition or substantially the same condition now as it was when 7 you first received it? 9 A. It appears t o be. I actually placed the tablets inside the plastic bag that's inside. 10 Q. All right. 11 A. Just to keep them all together so that they 12 13 14 And why did you do that? weren't spread out all over the place. Q. When you received them, were they spread out all over the place? 15 A. Yes, 16 Q. Okay. they were, within the bottle. Does that appear to be the same -- the 17 same tablets that you retrieved from the bottle that 18 was in the evidence bag? 19 A. Yes. 20 Q. Does it appear as though i t ' s been tampered 21 • cut into the bag to analyze the 6 8 • Q. And I also with in any way since you've repackaged the -- 22 A. No. 23 Q. -- tablets? 24 A. Doesn't appear to be. 25 Q. All right. MARTINA REPORTING SERVICES (239) 334 - 6545 283 • 1 MS. FITZGERALD: At this time, Your Honor, 2 the State would like to move State•s Exhibit 3 3 into evidence. 4 MR. 5 real fast? 6 McNEELEY: Can we approach, Your Honor, THE COURT: Come on up. (Thereupon, a sidebar conference was held, 7 8 9 10 • out of the hearing of the jury, as follows:) MR. McNEELEY: Your Honor, the reason why 11 I would not object, 12 count them. 13 there were two different types of pills, the 14 second detective said he thought he only had one, 15 now he•s saying there•s only one, but I would like to have him Because the first detective said 16 THE COURT: 17 manufacturers. but like There were two different 18 MR. McNEELEY: 19 THE COURT: 20 MR. 21 (Sidebar conference concluded.) That was the only distinction? That was the distinction. McNEELEY: All right. No objection then. 22 • 23 THE COURT: 24 into evidence. 25 State•s Number 3 will be admitted (State•s Exhibit No. 3, Bag Containing MARTINA REPORTING SERVICES (239) 334-6545 284 • 1 2 MS. 3 THE COURT: 4 MS. 5 • Your Honor, may I publish? You may. FITZGERALD: Your Honor, would you -- is it okay if I let them pass it? THE COURT: 7 MS. 9 was Received in Evidence.) FITZGERALD: 6 8 • Tablets, FITZGERALD: don't trust you, BY MR . Just show it. Show it, okay. Not that we but we don't trust you. FIT Z GERALD : 10 Q. 11 tablets? 12 A. December 1st, 2009. 13 Q. What test did you perform on the tablets that 14 15 When did you perform the analysis on those are contained in State's Exhibit 3? A. I performed two instrumental tests. 16 a gas chromatograph, 17 spectrometer. One was the other is gas chromatograph 18 Q. Can you explain what those instruments do? 19 A. Sure. The gas chromatograph, what i t does is 20 it records a time in which a small sample is placed in 21 the instrument and as it travels through the small 22 thin tube there's a time that i t comes out, 23 that time it is matched with the time of a known 24 standard. 25 What a mass spectrometer does is, MARTINA REPORTING SERVICES (239) 334 - 6545 and in as the 285 • 1 sample exits that small tube, 2 compound is then broken into various pieces and 3 arranged in a bar graph and this bar graph is what I 4 match to a 5 conclusions. 6 7 8 9 • known standard to reach my analysis Okay. And what was the other test that you mentioned? A. one, The gas chromatograph. That was the first that mass spectrometer. 10 Q. All right. 11 A. The mass spectrometer. 12 Q. Okay. 13 A. I 14 Q. Oh, 15 A. That's the one -- that's the one that breaks And what was the second one? Can you describe that, please? did. I'm sorry. 16 the compound down into various pieces and arranges it 17 into a bar graph. 18 Q. Okay. 19 A. And that's what's known as the fingerprint of 20 21 22 23 • Q. i t ' s then -- the the compound and that is matched to a known standard. Q. Okay. Does that include the color test or is that something separate? A. On the tablets I don't do a color test. 24 I do is a basic marked tablet look-up, 25 reference that we look up, there's a and just by looking at the MARTINA REPORTING SERVI CES (239) What 334-6545 286 • 1 pill markings we have an idea what the tablet could 2 be. 3 4 And were you able to identify any pill markings on the tablets that you received or tested? A. Did I do a -- 6 Q. Did you make a note of any? 7 A. No, I didn't. This is a common tablet that I 8 see in the laboratory quite often, 9 to do the pill look-up. 11 so I'm not required I'm familiar with it, so I just go right on to the instrumental test. Q. All right. Based on your analysis, were you 12 able to form an opinion as to what the substance 13 contained in State's Exhibit 3 is or contains? 14 A. Yes. 15 Q. And what is that? 16 A. Oxycodone. 17 Q. Is Oxycodone a chemical or controlled 18 substance in Florida? 19 A. Yes, 20 Q. Did you also have the opportunity to weigh 21 the tablets, it is. the Oxycodone? 22 A. Yes. 23 Q. And please explain to the jury the procedure 24 • Okay. 5 10 • Q. 25 you used to weigh the evidence. A. What I do i s I have a small what's called MARTINA REPORTING SERVICES ( 239) 334 - 6545 287 • 1 "weigh boat" and I place that on my balance, 2 balance to where I have a zero reading and then I 3 the tablets to the boat and whatever the reading is, 4 record it. 5 Q. Okay. 6 A. So I'm weighing only the tablets. 7 Q. Okay. that package that you put it in and the bottle, 9 of those things were included in the weight; 10 correct? 11 A. 13 14 add just the tablets, none is that the tablets marked M30. Q. Okay. And is that the only thing you do to weigh the evidence as provided? A. Yes, 16 Q. Okay. 18 yes. All right. How is this -- how is -- your weight system, how is that checked for accuracy? A. Well, once a year we have an outside source 19 come i ,n and they do -- they maintain the balance. 20 They take the pan apart and clean it and then they 21 have kn ow n standard weigh t s that they calibrate the 22 balance to. 23 • That is correct, 15 17 zero my So as the tablets are now encased in 8 12 • I For example, th ey h av e a standard 50-gram 24 weight, they put it on there and adjust it to where 25 that weight equals 50 grams on the readout. MARTINA REPORTING SERVICES (239) 334-6545 I 288 • • 1 And then once a month I 2 known weights and I 3 it's four grams to 2,000 grams, 4 record it in a book to make sure that I'm getting the 5 correct readout. do a variety from -- I Q. 7 tablets, 8 with -- sorry, 9 working order? let me rephrase that. A. Yes. 11 Q. Okay. 12 tablets? 13 A. 18.3 grams. 14 Q. Okay. 15 correct? 16 A. That's correct. 17 Q. Okay. MS. And that is without the packaging, FITZGERALD: THE COURT: 21 22 23 24 25 Was it in And what was the weight of th e at this time, 20 weigh it and was the -- your scale, was it in compliance 10 19 and I believe On the date that you weighed the Oxycodone 6 18 • have my own set of I have no further questions Your Honor. Cross-examination. CROSS-EXAMINATION BY MR. Q. McNEELEY: Mr. Putterbaugh, enforcement title, A. you don't have a law do you? No. MART I NA REPORTING SERVICES (239) 334 -6545 289 • 1 Q. It's Mr. 2 A. Mister is fine. 3 Q. Okay. When you received the pills, you were saying that it came in the FDLE bag like that and 5 they're all inside? 6 A. I believe they were inside the pill bottle. 7 Q. So -- and when you do the mass 8 spectrometer -- if I'm pronouncing that correct l y -- 9 you're testing one pill, 11 12 13 14 you're not testing all 150 or however many there are? A. That's correct. I'm testing one pill sample with a certain marking. Q. So if that had started with 150 pills when you received it, how many would there be in there now? 15 A. There should still be 150. 16 Q. Oh, 17 A. Yes. 18 the pill. 19 Q. you put the same one back? I only take a small little piece off I don't use the entire pill. Okay. So, theoretically, 20 if you don't test each pill, 21 that substanc e or not. 22 • right? 4 10 • Putterbaugh, A. Well, I mean each pill, you don't know if it's the way chemical testing is, is we take 23 a repr ese ntative sample of a substance. 24 the pill markings are the same consistency with the 25 same ma rkin gs, Because all I r andomly p i ck one pill and test that MARTINA REPORTING SERVICES (239) 334-6545 290 • 1 one pill . 2 Q. Okay. 3 A. Correct. 4 Q. Well, just wanted to ask that the way you would be assessing if they looked the same would be by 6 eye. 7 A. That's correct. 8 Q. Okay. You didn't do a color test because you recognized the pill. 10 A. Yes, 11 Q. 30-milligram Oxycodone. 12 A. Yes. 13 Q. How many manufacturers are there of that 14 pill, 15 A. yes. do you know? Well, of one specific pill marking, I believe 16 there's only one manufacturer of that particular 17 marking, 18 Oxycodone. 19 20 • I It goes the same with -- I'm sorry. 5 9 • As long as they look the same. Q. but there's several manufacturers of Okay. Do you know how many manufacturers of Oxycodone there are? 21 A. No. 22 Q. More than one? 23 A. Yes. 24 Q. Is i t -- do you know if the companies are 25 More than one. local or -- meaning national, or based somewhere else? MARTINA REPORTING SERVICES (239) 334-6545 291 • 1 A. The company that manufacturers the pills? 2 Q. Yes. 3 A. Well, 4 Q. Okay. 5 A. I don't know where. 6 Q. I said local, 7 America. 8 A. 9 10 • I know they're not local. I meant to say United States of believe. I think -- I'm pretty sure that pill manufacturing can be done overseas, Q. these in your possession is if you have a 12 prescription? 13 A. Well, 14 Q. Other than law enforcement, 15 A. I I really don't-for example. really don't know how one would obtain it. 16 I mean there are various ways of obtaining it, 17 don't think I'm following you. 19 Q. too. And the only way you should be able to have 11 18 but I Is one way to obtain Oxycodone by doctor prescription? 20 A. Absolutely. 21 Q. Is -- can you think any of other legal way to 22 • Yes, I have Oxycodone on your person? 23 A. Legal way? 24 Q. To obtain Oxycodone from a pharmacy. 25 A. I b e l i e ve a prescription. MARTINA REPORTING SERVICES ( 2 39) 334-6545 292 • 1 Q. Is that the only way you could think of? 2 A. A legal way's to get from a 3 Q. Yes. 4 A. -- yes, 5 Q. Okay. A. No. 9 Q. But you would have the capabilities, 10 Department of Law Enforcement, 11 like fingerprint 13 14 A. Yes, Florida to actually do things testing and things like that? we have that capability. We have a latent print section . Q. What percentage -- you're very familiar with 15 Oxycodone. 16 particular tablet. I heard you say i t ' s very familiar, 17 A. Yes. 18 Q. What percentage of substances that you 19 analyze in, 20 month, 21 that is Oxycodone? 22 • bottle? 8 12 • prescription. Did you do any analysis on the actual pill 6 7 pharmacy A. say -- whatever time period, a given week you choose, We've been seeing a that a given what percentage of large increase of 23 Oxycodone in the laboratory. 24 on a monthly basis, 25 differ ent numbers of cases each month. I t ' s really hard to say because law enforcement submits MARTINA REPORTING SERVICES (239) 334-6545 But I would 293 • 1 say 90 percent of our case load is Oxycodone . 2 Q. 3 high? 4 A. Within the past couple years. 5 Q. I 6 • I think sir. Did you ever come across a pill marked M25 in this batch of pills that you received? 9 A. I would hav e to refer to my notes. 10 Q. Can you please do that? 11 A. Sure. 12 Q. Yes, 13 pill. 14 A. Yes, 15 Q. Can you tell me which -- what they were? 16 A. There was tablets marked A/215, 17 M25? or any other pill other than one type of You know there were -- yes. and that was the only other tablet. 18 Q. Okay. 19 A. Correct. 20 Q. And what was the other batch tablet marked 22 A. The one that I tested was M30. 23 Q. What was t h at A/215? 24 A. I 25 Q. Have you ever seen that tablet before? 21 • just want to check one more thing. I might have just one more question for you, 7 8 And how long has it been approximately that So one is marked A/215. as? didn't analyze it. MARTINA REPORTING SERVICES (2 39) 334-6545 294 • 1 A. Yes . 2 Q. Based on what you knew about that tablet 3 before, what do you think it is? 4 A. Oxycodone. 5 Q. Just a different manufacturer? 6 A. Probably. 7 Q. How would a prescription -- if you know, 8 would a prescription at a pharmacy be filled in with 9 two different types of Oxycodone? 10 A. I don't know. 11 Q. Okay. 12 • 13 McNEELEY: MS. FITZGERALD: 17 18 No other questions. Thank you . 14 15 MR. Just very briefly, Your Honor. 16 REDIRECT EXAMINATION BY MR. Q. FITZGERALD: Mr. McNeeley brought up the latent print 19 capability of the Florida Department of Law 20 Enforcement. 21 submit any i t ems for latent print analysis or is that 22 at the direction of law enforcement? 23 24 • how 25 A. Is that a decision that you make to That's at the direct examination of law enforcement. MS. FITZGERALD: I have no fur t her questions. MART I NA REPORTING SERVICES (239) 3 34-6545 295 • 1 2 THE COURT: THE WITNESS: 4 MS. you may step Thank you. FITZGERALD: Mr. McNeeley, may he be excused? 6 MR. McNEELEY: 7 MS. 8 Putterbaugh, down. 3 5 Mr. FITZGERALD: Oh, yes. Thank you, sir. You're welcome. (Witness ex c used.) 9 10 11 MS. FITZGERALD: The State rests, Your Honor. (STATE RESTS) 12 • 13 THE COURT: 14 Members of the jury, the State has rested. 15 I'm going to as k that you go back into the jury 16 room for a couple of minutes while I take care of 17 things here. 18 Please do not dis c uss this case amongst 19 yourselves. 20 minutes. Okay? We'll see you in just a few 21 (Thereup o n, 22 courtroom at 4:47p.m.) 23 24 • All right . 25 THE COURT: the jury was excused from the Mr. Mc Neeley, do you have any applications? MR. Mc NEE LEY: Yo u r Ho nor, if I could have a MARTINA REPORTING SERVICES (239) 334-6545 296 • 1 minute. 2 make. 3 have a minute or two so I could go over with my 4 client to make sure there's nothing in my notes 5 that I missed. 6 THE COURT: 7 MR. McNEELEY: Maybe if I Thank you. 9 THE COURT: MR. could Okay. (Discussion held off the record.) Do we have a motion? McNEELEY: Your Honor, I'd like to make a 11 motion for JOA. 12 the target of the investigation was against John 13 Daniels, 14 engaging in this. 15 the vehicle when the police happen to show up to 16 make a deal with John Daniels. 17 I think based on the facts that they have no evidence of her intent in All they have is her being in And talking to her when knowing her name is 18 Theresa, 19 to the fact tha t 20 • I'm coming up blank. 8 10 • I'm trying to think of a JOA argument to when i t ' s her middle name, is incidental she was on the phone. They haven't presented any evidence which 21 would tend to implicate her as being 22 knowledgeably selling drugs to the confidential 23 informant, who only had the intention to purchase 24 from John Daniels at the time. 25 THE COURT: You heard a different case than I MARTINA REPORTING SERVICES {239) 334-6545 297 • 1 MR. McNEELEY: 3 THE COURT: 4 MR. Yeah. Where do we go from here? McNEELEY: Well, the defense would probably call -- do you want to testify? 6 (Discussion was held off the record.) 7 MR. McNEELEY: Your Honor, my client has an 8 abs ol ute right to either testify or not testify, 9 and i t ' s my understanding she would like to 10 testify here today. 11 THE COURT: 12 MR. Okay. McNEELEY: And that's probably where we 13 would go first . 14 could take a break to go to the lavatory. 15 her we could take a break after the State's case. 16 Is that okay, She asked me earlier if she THE COURT: She could go now. 18 (Thereupon, a brief recess was taken.) 19 THE COURT: Please bring in the jury. 20 THE COURT BAILIFF: 21 (Thereupon, 22 courtroom at 5:00p.m.) 24 25 THE COURT: Yes, sir. the jury was assembled in the The State has now rested their case. Mr. I told Your Honor? 17 23 • Motion denied . 2 5 • did. McNe e ley, you may proceed. MARTINA REPORTING SERVICES (239) 334-6545 298 • 1 2 3 4 MR. McNEELEY: Yes, Your Honor. would like to call Mary Nowling to the stand. THE COURT: Ms. Nowling, come up, clerk and raise your right hand, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 • 25 MARTINA REPORTING SERVICES (239) 334-6545 face the please. 5 • The defense 299 • 1 Thereupon, 2 MARY NOWLING, 3 after having been first duly sworn or affirmed, was 4 examined and testified as follows: 5 THE DEFENDANT: 6 THE COURT: 7 8 • • I do. Please have a seat. DIRECT EXAMINATION BY MR. McNEELEY: 9 Q. Mary, 10 A. Mary Theresa Nowling. 11 Q. How old are you? 12 A. I ' l l be 58 next month. 13 Q. Do you have any brothers or sisters? 14 A. I 15 what's your name, please? have one brother that's alive that's four years younger than me. 16 Q. Where does he live? 17 A. In Eddyville, Alabama. 18 Q. Are your parents still alive? 19 A. My mother, she's almost 80 and she lives 20 right down the road from him. 21 staying. 22 Q. Well, 23 A. Amityville, Alabama. 24 Q. Do you have any children? 25 A. I That's where I was where does your mom live? have two. MARTINA REPORTING SERVICES (239) 334-6545 300 • 1 Q. And what are their names? 2 A. Summer Giddons and Clarence Giddons. 3 Q. Is that Clarence Giddons, 4 A. The third. 5 Q. And where were you born? 6 A. Murphysville, 7 Q. And did you move to Fort Myers at some point? 8 A. My parents traveled around a lot, 9 10 11 • Il l inois. like when I was 19, Q. Okay. Do you have any grandchildren? 13 object. 14 don't have to go into the family tree. 15 FITZGERALD: I Your Honor, I'm going to think basic questions are enough. THE COURT: BY MR. I ' l l allow it. McNEELEY: Q. Do you have any grandchildren? 18 A. I have four grandchildren. 19 Q. And can you describe, 20 which one is it, 21 son that have the c hildren? please, My son has his a little boy who is two years old and his name is Clarence, 24 that I'm really concerned about. Q. who is the your mother or -- your daughter or 23 25 We Go ahead. 17 A. That was so almost 38 years ago. MS. 22 but I moved to Fort Myers when I married Clarence's dad. 12 16 • III? Okay. And, IV, and he is the one well -- MARTINA REPORTING SERVICES (239) 334-6545 301 • 1 MS . 2 THE COURT: 3 4 5 6 McNEELEY: Q. Okay. When did you come down to Florida for the most recent time for this? A. I came down the end of May and I 8 move in with a sister-in-law. 11 relevance. Sustained. to stay with my niece. 10 Q. was trying She moved out and I And when you came down here, had to what was the reason? A. To try to help with my grandson and actually 12 to try to get him and his mother moved back to Alabama 13 with me . 14 Q. Okay. 15 A. He was incarcerated. 16 Q. Did he know and was he friends with John 17 Daniels? 18 A. Oh, 19 Q. All right. Where was your son? yeah. He's known him most of his life. Was okay. So immediately 20 preceding this incident in September or -- 18th, where 21 were you living, 22 Daniels? 23 here to 24 • Objection, 7 9 • BY MR. F I T Z GERALD : 25 A. say -- how did you meet up with John How did you come across him if you came down See, I place to stay . came down here and I didn't have a I've actually been sort of between MARTINA REPORTING SERVICES (239) 334-6545 302 • 1 homelessness for the last five years. 2 my mom i n Alabama f o r a l i t t le while. 3 But I 4 sist e r-in-law's house. 5 through -- I had a h ead i n jur y , 6 another place becau s e at the time I 7 serious mental issues. 8 9 10 11 • had to stay a t my so I had to live at Objection, had a lot of Your Honor. THE COURT: Let's get to the 18th day of September 2009. 13 THE COURT: Yes, Your Honor. And stop leading the questions, p l ease. 15 MR . McNEELEY : 16 THE WITNESS: 17 THE COURT: 18 THE WITNESS: Yes, Your Honor. We ll -And get t o the podium, please. I was coming down here to take And John Daniels 19 care of my little grandson. 20 knew I was coming. 21 instead of bringing him to a motel room -- 23 24 25 May we approach? MR . McNEELEY: 14 stayed with My car got wrecked and I went FITZGERALD: 12 22 • MS. came down here, I MS. FITZGERALD: He called me and told me Objection, Your Honor, h ea r say . THE CO URT : Sustained. Only answer the questi o n. MARTINA REPORTING SERVICES (239 ) 33 4- 6545 303 • 1 2 THE WITNESS: MR. 4 THE WITNESS: 6 Q. • 13 14 15 16 THE COURT: THE WITNESS: family's. BY MR. Q. asked and How do you know him? He was a friend of the knew his father. McNEELEY: Okay. Did -- how did you come to be with him A. Well, came down here and he asked me to I stay at his house. 18 THE WITNESS: 19 THE COURT: 23 Objection, on September 18th? FITZGERALD: I No, Objec tion, Your Honor. have to say this part. ma'am. You can say why you were with him on 18 September. 21 • I MS. 22 You told me not to? FITZGERALD: 17 20 Mary, Mary. answered. 10 12 McNEELEY: How do you know Jeff or John Daniels? MS. 9 11 Oh, BY MR. McNEELEY: 7 8 stay at his ho u se? I'm sor ry . 3 5 Could I THE WITNESS: Because he gave me a ride. was living at his friend 's house. BY MR. McNEELEY: 24 Q. Okay. 25 A. No . Did you own your own vehicle? MARTINA REPORTING SERVICES (239) 334-6545 I 304 • 1 Q. What happened to your vehicle? 2 A. My car was wrecked. 3 Q. Okay. 4 A. In July. 5 Q. Of 6 A. Uh-huh. 7 I came down here with my daughter-in-law. Q. And who is that? 9 A. Jessica Boric, 10 Q. When -- had you ever -- do you know who the the grandson's mother. CI is in this case? 12 A. I 13 Q. What's his name? 14 A. All I ever knew was Woody. 15 Q. Okay. 16 17 18 19 20 • '09? 8 11 • And when was that? know of him. Does the name Woody Woodrow sound familiar to you? A. mean I Q. Well, only because I've been hearing it. I only had heard him as Woody. Okay. And you had known him through your son? 21 A. Uh-huh. 22 Q. Had you ever called or talked to Woody? 23 A. I n e ver called him. He did call one time and 24 I talked to him. 25 talked to him and he started talking something crazy. The phone was handed to me and I MARTINA REPORTING SERVICES (239) 334-6545 305 • 1 2 3 And I that on the Q. Okay. would you be talking like and hung up on him. Did you ever listen to the conversations between John -- or how many 5 conversations do you think there was between John 6 Daniels and Woody to set up this September 18th 7 transaction? 9 A. You know, to set it up, I'm not exactly sure. Because they were talking to each other. See, 10 11 in Alabama. 12 phone. 13 I he had my phone because it didn't work I gave him my phone is why he had my was trying to get a Boost phone. But that day, 14 kept -- well, 15 it kept being Woody. 16 him. 17 Q. 18 well, 19 about, on the September 18th, And John-John was talking to Did you -- what day did you pick up the -first of all, are t hese pills we're all talking are these your pills? A. Yes. 21 Q. What were they prescribed for? 22 A. Because I 23 Q. Okay. 25 I the phone kept ringing continuously and 20 24 • phone,~ ~why 4 8 • said, have degenerative back bone loss. Can you please describe a little bit fully what is the problem with your back? A. Two herniated disks in the bottom and -- MARTINA REPORT I NG SERVICES ( 23 9) 3 34-6545 306 • 1 2 MS. Your Honor . 3 THE WITNESS: 4 MR. 5 THE COURT: 6 don't say anything. You don't say anything 7 without a question. Okay? 9 10 11 No, McNEELEY: but I do have an MRI. Hold it, let the jury If there's an objection, you I ' l l allow the question as to why she has the pills. BY MR. McNEELEY: Q. Okay. Please explain your condition. 12 THE COURT: 13 THE WITNESS: 14 back problems. 15 THE COURT: 16 BY MR. No, why she has the pills. I had the pills because I have Okay. McNEELEY: 17 Q. How long have you had back problems? 18 A. It's been getting worse for the last ten 19 20 21 22 • Objection, She's not qualified to give that comment. 8 • FITZGERALD: years and now i t ' s really bad. Q. Okay. medication for pain relief? A. They started prescribing me Percocet in 23 Abbeville, 24 and I 25 When were you prescribed the Alabama, and they told me I needed surgery told them I didn't want no -MS. FITZGERALD: Objection, Your Honor. MARTINA REPORTING SERVICES (239) 334-6545 307 • 1 2 Go back to September 18th. THE WITNESS: 4 THE COURT: 6 BY MR. Q. So I Ma'am. September 18th. McNEELEY: When you -- describe the beginning of 7 September 18th. 8 were you with? Let's talk about September 18th. 9 A. John. 10 Q. What time? 11 A. All d ay . 12 Q. Why were you with him all day? 13 A• Because I 14 Raton and get my pills. Q. Okay. 16 A. Yes, 17 Q. And did he say anything to you about this 19 20 Did he drive? he did. transaction he had worked out with Woody and himself? MS. Leading. FITZGERALD: Objection, Your Honor. Testifying. 21 THE COURT: 22 Stop leading. 23 Go ahead, 24 THE WITNESS: 25 Who had to go to the doctor in Boca 15 18 • Sustained. 3 5 • THE COURT: I agree. The question is out there. you may respond to the question. Okay. Yes. I was told I had to leave the house if I didn't -- if I didn't get MART I NA REPORTING SERVICES (239) 334 -6545 308 • 1 some money and get out of there . 2 MS. 3 THE WITNESS: 4 THE COURT: 5 8 9 • Th at 's why I was with him. It's nonresponsive. THE WITNESS: What was the question? I'm sorry. BY MR. McNEELEY: Q. Mary, 10 question. 11 right? le t me ph rase you with a dif ferent Just try to answer what I'm asking you, 12 A. Yeah. 13 Q. When was the first time John Daniels all 14 approached you about selling drugs to Woody that ended 15 up ta king place on September 18th, 16 17 MS. FITZGERALD: THE COURT: 19 THE WITNESS: 21 2009? Objection, Your Ho nor. Leading. 18 20 BY MR. Q. Overruled. The night before. McNEELEY: Ok ay. Could you please describe the 22 circumstances surrounding what you thought was going 23 to ha p p en? 24 • Objection. Nonresponsive t o the question. 6 7 FITZGERALD: 25 A. I don't know what to say, I'm afraid I ' l l get in trouble. MARTINA REPORTING SERVICES (239) 334 - 6545 309 • 1 2 3 4 • Q. and he told me that if I Let me ask you a different question. Why were you living with John Daniels? A. Because my daughter-in-law abandoned me and I 5 had nowhere to go. 6 nowhere to go. I was trying to get home. I had 7 Q. Okay. 8 A. Lehigh Acres. 9 Q. Lehigh Acres. 10 A. And John Daniels told me that at the place Where is "there," Fort Myers? 11 where we lived at, 12 out with my two dogs. 13 Q. Oka y. you do for income? 15 income sources? A. I whose car it was, Speaking of which - - 14 16 said I had to get please. disability, 18 dogs and se 11 them. What's your income come from, your and then I s u bstitute it with -- I raise 19 Q. What kind of dogs do you sell? 20 A. Blue American pit bull terriers. 21 Q. And did you do t h at - - 23 What do get a social security check from mental 17 22 • I had to go home, where did you do that? Where did you keep the dogs? A. Well, two was h ere, one see, I only have 24 three left and one of my stud dogs with my mother in 25 Alabama, but I was bringing the two back wi th me when MART INA RE PORTING SERVICES (239) 334-6545 310 • 1 2 I went back to Alabama . Q. 3 what did John Daniels say to you in an attempt to 4 convince you to come with him to sell these drugs? 5 MS. 6 THE COURT: 7 MR. 8 10 Objection, Your Honor. Sustained. McNEELEY: It might be duress, Your THE COURT: BY MR. Sustained. Stop leading. McNEELEY: 11 Q. 12 that made you convinced that you needed to do this? What was the -- what did John say to you to 13 MS. 14 THE COURT: 15 16 17 18 19 20 21 • FITZGERALD: Honor. 9 • Did John Daniels know that you had -- well, FITZGERALD: Objection . Sustained as to the form. BY MR. McNEELEY: Q. Did John Daniels tell you something that made you want to give him your pills? A. Yes. He told me I had to move out of the house or I would be out on the street. Q. Okay. Did you have any other sources of income? 22 A. No, 23 Q. Did John Daniels know that? 24 A. Yes. 25 not at that point. He knew that I was going to -- and he also knew that with my mental instability that I MARTI NA REPORTING SERVICES (239) 33 4-6545 311 • 1 wouldn't be able to get out on the street, 2 would be able to talk me into things. 3 4 you on the tape we heard? A. Yes. 6 Q. Okay. When you were speaking about a U-haul and about Boost mobile, 8 A. 9 go home. I Q. Which is where? 11 A. In Abbeville, 12 Q. Okay. 13 A. You know, 14 Q. Hold, hold, THE COURT: 16 MR. 17 THE COURT: 18 MR. 19 THE COURT: 20 MR. 21 THE COURT: 22 THE WITNESS: 23 THE COURT: 25 Q. All I wanted to do was Alabama. I'm sorry I 15 BY MR. why were you mentioning those? needed to go home. 10 24 • When you were asking the officers -- was that 5 7 • Q. that he hold. did this. Please, please, please. All right. McNEELEY: Mary, Mr. McNEELEY: Mary, Mary, Mary, Mary. McNeeley. Yes, please. All right. McNEELEY: Just answer the questions. No leading questions. What was the question? There is no question, ma'am. McNEELEY: Mary, when -- did you ever talk to Woody MARTINA REPORTING SERVICES (239) 334-6545 312 • 1 2 A. No. 3 Q. Why did you never talk to Woody? 4 A. Because John was getting involved. 5 MS. 6 THE COURT: 7 8 9 • about the September 18th transaction occurring? FITZGE RALD: Objection, Your Honor. To the form of the question, sustained. BY MR . Mc NEELEY : Q. The day aft e r this happened or the night of, 10 did you have any visitors from law enforcement come 11 to you? 12 A. The night I 13 Q. Who came to you? 14 A. The gentleman that was up here on the s t and, 15 got arrested. the second detectiv e . 16 Q. And what did he do when he came to see you? 17 A. He set on little stool in the -- you know, 18 one of the holding cells, wherever I 19 know exactly where I was at. 20 state, 21 or -- I THE COURT: 23 THE WI TNESS: Objection, he said to me Your Honor. Come on up here . 24 • I don't And I was in such a can't really remember wha t 22 was at. 25 MARTINA REPORTING SERVICES (239) 334-6545 313 • 1 2 3 4 5 6 7 8 9 • a sidebar conference was held, out of the hearing of the jury, THE COURT: as follows:) She is now going into her arrest on October the 7th. MR. McNEELEY: I believe that we're talking about the reasons why she was here. THE COURT: the 7th, MR. She was arrested on October she was not arrested on September 18th. McNEELEY: Okay. Your Honor, I'd like to 10 bring up to the Court's attention that I would 11 like to at least explore her reasons why she was 12 with Jeff Daniels -- or John Daniels 13 THE COURT: 14 MR. McNEELEY: You've already got that out. Well, 15 still more story to that, 16 actually -- 17 THE COURT: there was Your Honor. there's She was I'm not --what story for the 18 18th? 19 pills over and took the money? She's going to explain how she handed the 20 MR. McNEELEY: 21 THE COURT: 22 • (Thereupon, Okay. Don't be go i ng into where she got arrested. 23 MR. McNEE LE Y: 24 (Sidebar conference concluded.) All right. 25 MARTINA REPORTING SERVICES (23 9) 334-6545 314 • 1 2 Did you ever hear the transaction where the items were mysteriously lost? 4 that was mysteriously lost? 6 A. I he had held on to the pills, I had to do it. Q. Who is "he"? 8 A. John. 9 Q. Did you ultimately -- 10 MS. 11 THE COURT: 13 14 FITZGERALD: Can you describe where because I felt like He got mad at me. 7 12 Objection, leading. Form of the question, sustained. BY MR. McNEELEY: Q. What made you decide to pretend to find the pills? 15 A. Because he got mad. 16 Q. And what were the things that John Daniels 17 18 19 20 21 • Q. McNEELEY: 3 5 • BY MR. was doing to make you believe that he was mad? A. Just throw ing stuff around and raising his voice and I Q. car, can't take that. Did the other two pe op le that were in the did they do anything physical? 22 A. Not that I 23 Q. When John Daniels got out of the car, 24 they say, 25 A. I know of. did "What's he doing?" -- at that point I wasn't paying attention MARTINA REPORTING SERVICES (239) 334-6545 315 • 1 to them. 2 throwing stuff ar ound . 3 him, And he said, 5 MS. 8 THE COURT: 11 BY MR. Q. Can I FITZGERALD: 16 THE COURT: McNEELEY: Objection, Your Honor, It would go to -- On September 18th, did he have a firearm? THE WITNESS: Not a firearm, Not a firearm, but a but a knife. knife. BY MR. McNEELEY: 21 Q. I'm sorry, 22 A. Not a firearm, 25 answer this? relevance. MR. 24 It would go toward -- when -- have you ever known John to 15 23 Your Hono r, carry a weapon or have a firearm? 18 • Mary, MS. 20 Object ion, McNEELEY: 13 19 Theresa." Overruled. THE WITNESS: 17 "Whatever, McNEELEY: 12 14 told hearsay. MR. 10 And he -- he told -- I FITZGERALD: 7 9 getting mad, "I don't want to do this" before we ever did it. 4 6 • John was slamming the door, I didn't hear you, but a knife. Mary. And he threw i t up in the midd le of the co nsol e . Q. Is that the pers on who was on t he phone talking about his pocket knife? MART I NA REPORTING SERVICES (239) 334-6545 316 • 1 A. Yes . 2 Q. Can you describe what it looked like? 3 A. No. 4 I Did John -- 6 A. I 9 10 just remember him taking stuff out of his pockets and throwing it. Q. Okay . Did John Daniels ever actually threaten you to say, MS. 12 THE COURT: 13 THE WITNESS: 14 THE COURT: 15 MR. 16 THE COURT: 18 19 20 BY MR. Q. FITZGERALD: Sustained. Your Honor, Leading, state of mind. sustained. Did -- was anything said to you that made you want to do this transac tio n? A. Yes. 22 THE COURT: 25 Up -- McNEELE Y: MS. 24 Objection. Sustained. McNEELEY: 21 23 if you don't give me your pills, something bad is going to happen to you? 11 17 I'm not can't really remember that. Q. 8 • really sure. think it was a buck knife. 5 7 • I FITZGERALD: Objecti on, Your Honor. Sustained. BY MR. McNEELEY: Q. What was the reason why you thought you had to go th roug h with this transac tion? MARTINA REPORTING SERVICES (2 39) 334-6545 317 • 1 2 3 4 thought I was going to be on the street by myself with no car, Q. n o mo ney, no place to go. Based on the -- what things had John Daniels said to you in the past? MS . 6 THE COURT : BY MR. FITZGERAL D: Objection, Your Honor. Sustained. McNEELEY: 8 Q. What was your name befor e you were married? 9 A. My maiden name? 10 Q. Well, 11 A. Giddons. 12 Q. Is that how Woody would have known you? 13 A. Yes. 14 Q. You saw the detective here today, what was your first marriage's name? the ot h er 15 one, Armato. 16 outside of September 18th about doing the transaction 17 on September 18th? Had you ever talked to him directly 18 A. No. 19 Q. Until that day, 20 A. No. 21 Q. How many pills normally would come in your 22 • I 5 7 • A. had y o u ever met him be f ore? prescription bottle? 23 A. 220. 24 Q. How did it come about the decision for 25 selling 150 pounds -- 150 pills was made? MARTINA REPORTING SERVICES (239) 334-6545 318 • 1 A. thought -- I 3 was 150, but I 4 my mind is not g o od. I mea n I don't know. knew there It's like right when the 7 he wants 150 pills. 8 ready to g e t 10 I thought there was a hundred pills, but transaction was going and happened, Q. because I lis t en e d to the t ape, 6 9 And I it was like, was just out of there and I had -- I well, was said okay. Was that the first time you had heard that it was supposed to be for the number of pills it was for? 11 A. That day, 12 Q. Was it before or after you were -- you had 13 A. 15 side. 16 Q. Oh, I No, I mean to say, A. 19 happened. 20 Q. 22 kept them with me. They ne v er left my when did you find out what this transaction am o unt was supposed to be for? 18 21 y e ah. them in the car? 14 17 • I don't remember, 2 5 • Yo u know, Probably just an hour or so before it Okay. Do you know how long John was speaking with Woody prior to the 18th for anything? A. I guess they were friends. I don't know. 23 mean because John just got out of prison two months 24 before that, 25 long before that, I so he couldn't have been talking that so -- but I mean he knew him prior MARTINA REPORTING SERVICES (239) 334-6545 319 • 1 to that. 2 Q. hearing the tape, 4 hey, 5 five 25s? l ea st d o you remember that day being told, there's a five for 25 here or whatever was said, 6 A. Now that I 7 Q. At the time -- t he time did you know what he heard the tape, I r e membered. was talking about? 9 A. No. 10 Q. When phone calls came in from the 11 confidential informant o r 12 today as the dete c tive, 13 the one answering the phone? 14 A. I didn't -- I the detective that you know how was i t that you would be answer e d th e phone once, maybe 15 twice that day. 16 But usually I 17 the middle of the c a r and he answered it all day long. 18 I don't remember the second time. gave John the phone. It was sitting in I heard on the t ape that I had answered it 19 that evening, but it was his phon e from then on, 20 because I had given it to him. 21 Q. Okay. 22 A. And, 23 24 • Do you remember the o fficer -- or a t 3 8 • They were friends . 25 you kn o w, on the ph on e, MS. I really wasn't sure who was because -- e x c e p t FITZGERALD: h e would go Obje c tion, Your Honor, nonresponsi v e. MART I NA REPORTING SERVICES (239) 334-6545 320 • 1 2 3 4 THE COURT: BY MR. McNEELEY: Q. Who was driving that night on the -- September 18th? 5 A. I 6 Q. Did he tell you where you were going to meet 7 him, • don't know. John Daniels. meet with the CI and his friend? 8 A. After he talked to them on the phone. 9 Q. Okay. So does that mean you did or did not 10 know where this location was supposed to take place of 11 this transaction? 12 • Sustained. 13 You didn't know location or did you? A. I -- I knew where i t was at ten minutes 14 before i t happened. 15 didn't know i t was going to transpire there until just 16 right when i t happened. I mean I know the location, but I 17 Q. Who told you about the location? 18 A. John. 19 Q. From the pills that you did not give to John 20 Daniels, 21 pills that weren't sold that day? were you taking -- what did you do with those 22 A. I 23 Q. And did you use t hem all? 24 A. What John didn't take from me. 25 Q. Oh, kept them for my back. you -- what do you mean? Did he take MARTINA REPORTING SERVICES (239) 334-6545 321 • 1 2 THE COURT: 3 MS. 4 5 6 FITZGERALD: Objection. BY MR. McNEELEY: Q. Okay. Why did you take the prescription off the pill bottle? A. Because tha t 's what he told me to do. 8 Q. Who's "he"? 9 A. John. 11 12 He said, "Make sure you take the labels off so your name is not on there." Q. Do you remember asking the person who ended up being a detectiv e to show his shirt? 13 A. Uh-huh. 14 Q. Why did you as k him that? 15 A. Because -- I hate to keep saying this, 16 John told me, 17 wire." MS. 19 THE COURT: 20 MR. 24 25 FITZGERAL D: Objection, Sustained. McNEELEY: Your Honor. This is all hearsay. It's statement of a co-defendant, Your Honor. 22 23 but "Make sure you find out if they got a 18 21 • Sustained. 7 10 • more? THE COURT: So what? BY MR. McNEELEY: Q. Was it you r idea to ask John -- to ask the detective to pull his shirt up? MARTINA REPO RTING SERVICES (239) 334-6545 322 • 1 A. No . 2 Q. Whose idea was it? 3 A. It was John's. 4 the car. 5 Q. 6 7 A. His, 8 Q. Okay. MS. 10 11 12 • John's. Where do you reside now? FITZGERALD: THE COURT: BY MR. Q. Objection, Your Honor. Sustained. McNEELEY: Had you ever -- prior to a month or so surrounding September 18th or so, 14 time you had ever spoken to John Daniels? 15 17 18 19 A. just Whose idea was it? 13 16 I when was the last hadn't stayed at the house for a month. left there. Q. July of '09, though, in when was the last time -he called me on the phone and told me 20 MS. FITZGERALD: 21 THE COURT: 23 24 A. Prior to you coming back down, Oh, 22 • Instead of saying what he told you, answer my questions. 9 He told me before he got in BY MR. Q. Objection, Your Honor. Sustained. McNEELEY: Just tell me th e l ast -THE COURT: Sustained. 25 MARTINA REPORTING SERVICES (239) 334-654 5 I 323 • 1 2 3 BY MR. McNEELEY: Q. John Daniels or of your own free will -- 4 5 MS. 8 THE COURT: Q. • 13 14 Q. Yes, Your Honor. Please explain to the jury why you decided to give your pills to John Daniels. THE COURT: 17 MR. FITZGERALD: THE COURT: Again, Your Honor, leading. Sustained. McNEELEY: objection is, 19 • Do you have any other BY MR. McNEELEY: 16 21 Sustained. MR. McNEELEY: MS. 20 Sustained. questions that you can ask without leading? 15 18 Your Honor, -- or did you feel -THE COURT: 11 12 Objection, BY MR. McNEELEY: 9 10 FITZGERALD: leading. 6 7 Did you decide to sell or give your pills to I'm not sure what the Your Honor. Sustained. BY MR. McNEELEY: Q. When John asked you -- or when John received 22 your pills, what made you believe 23 MS. 24 THE COURT: FITZGERALD: Obje c t i on. Sust ai ned. 25 MARTINA REPORTING SERVICES (239) 334-6545 324 • 1 BY MR. McNEELEY: 2 Q. 3 after THE COURT: 4 5 MR. McNEELEY: 10 11 12 • BY MR. McNEELEY: Q. If John Daniels wasn't there, A. No. MS. FITZGERALD: Objection . BY MR. McNEELEY: -- or given pills? 16 A. No, I wouldn't. 17 THE COURT: 18 MR. 21 would you have sold pills Q. 20 can we approach? It's sustained. 15 19 • THE COURT: 13 14 Your Honor, I don't understand what the objection is. 8 9 Objection as been made and sustained already on that question. 6 7 Did you give your pills to John Daniels McNEELEY: question, BY MR. Q. Sustained. Well, let me ask this Your Honor. McNEELEY: When was the last time you had talked to 22 Woody prior to a month or so within September 18th, 23 2009? 24 A. 25 then . I don't know that I ever talked to him before MARTINA REPORTING SERVICES ( 2 39) 334-6545 325 • 1 Q. Okay. 2 A. Because he lived around the corner from where 3 my relatives lived. 4 played with the kids. Q. So you knew of him by reputation or by name? 6 A. Uh-huh. 7 Q. And how did you know John Daniels? 9 10 11 12 MS. 14 15 17 FITZGERALD: Q. Well, I mean in -- as relation to how far back did you know John Daniels. THE COURT: Asked and answered. BY MR. McNEELEY: Q. Did you believe that you were in danger of being physically harmed if you did not 19 MR. McNEELEY: FITZGERALD: THE COURT: 22 MR. McNEELEY: 25 Objection. Your Honor, could I please approach? 21 24 We're going around in circles now. MS. 23 asked and BY MR. McNEELEY: 18 20 Objection, answered. 13 16 • When he was a little boy he 5 8 • How did you know of him? No. Then I just need a minute, Your Honor. BY MR. McNEELEY: Q. When you hid the pills from John Daniels, MARTINA REPORTING SERVICES (239) 334-6545 326 • 1 2 3 4 Not to sell them. I was going to act like I dropped them or some thing. Q. When the officer testified that he handed you the money, 6 other person or who was closer? A. were y o u cl o s e r to the officer than th e He was -- Jo h n was driving. 8 John and Woody was behind me, 9 closest. 10 Q. Okay. In order f o r He was behind so I don't know who was -- is it -- how would 11 John Daniels had to hav e moved withi n t h e car in or der 12 to hand money to 13 Detective Armato? or in order to receive money from 14 A. Right around the back seat. 15 Q. Did you ever see him turn around wh ile he was 16 in the car? 17 whil e he was in t he c a r ? Did you ever see John Daniels turn around 18 A. Sure. 19 Q. But did you ever see him turn around and 20 21 22 • A. 5 7 • what was your intentio n? He was talking to him his self. face -MS. Objection, FITZGERALD: asked and answered. 23 THE COURT: 24 MR. Asked and answered. McNEELEY: Your Hon o r -- all right. 25 MARTINA REPORTING SERVICES (239) 334-6 5 45 Sustained. 327 • 1 2 Did you fear John Daniels? MS. 4 THE COURT: FITZGERALD: Objection. Sustained. It's been asked and answered. 6 MR. McNEELEY: 7 THE COURT: 8 MS . 9 That question, Your Honor? Yes. F I T ZGERALD : Yes. BY MR. McNEELEY: 10 Q. At the transaction, 11 A. I 12 Q. Okay. 13 Daniels? 14 A. Yes. 15 Q. What did you give him? 16 A. $200. 17 Q. Anything else? 18 A. He wanted pills. 19 Q. And did you take any of the money that you who received the money? had the money. Did you give any money to John 20 received from that -- or what did you do with the 21 money you received from that? 22 23 • Q. 3 5 • BY MR. McNEELEY: MS. FITZGERALD: Objection, Your Honor, relevance. 24 THE COURT: 25 MR. McNEELEY: Sustained. I could be more specific. MARTINA REPORTING SERVICES (239) 334-6545 328 • 1 THE COURT: 2 MR. McNEELEY: 3 4 5 6 things for John Daniels at his request? A. Food and gas. 8 THE COURT: 9 next question . 12 BY MR. Q. FITZGERALD: THE COURT: BY MR. Q. FITZGERALD: 18 THE COURT: BY MR. Q. Objection . Sustained. Do you still take pain medication? MS. 21 FITZ GERALD: Objection, relevance. Sustained. McNEELEY: Did you ever tell Woody that you didn't want to do the sale? 22 A. No. 23 Q. Why not? 24 A. Because I didn't talk to him. 25 Ask the McNEELEY: 17 20 i t ' s out. spent? 14 19 All right, Your Honor. Do you know approximately how much money you MS. 16 Objection, McNEELEY: 13 15 Your Honor. Did you use any other money to purchase other MS. 11 • Q. Yes, McNEELEY: 7 10 • BY MR. Sustained. MS. FITZGERALD: Objection. MARTINA REPORTING SERVICES (239) 334-6545 329 • 1 2 3 Q. Did you have any -- well, MS. 5 THE COURT: 6 THE WITNESS: FITZGERALD: asked for. 8 came to me with, 9 And he says, And I said, 11 MS. wit h -- you know? "You want to go home?" "Yes, FITZGERALD: THE COURT: I do." Objection. Hearsay, Your That's -- BY MR. McNEELEY: 15 Q. 16 employed? 17 A. Are you currently unemployed -- or currently I get a mental disability check. 18 MR. 19 Your Honor. McNEELEY: 20 THE COURT: 21 MS. 22 THE COURT: No other questions for now, Cross-examination. FITZGERALD: 23 • because that's what John Honor. 13 25 Your Honor. I guess that's what Woody had You know, 10 24 Objection, I ' l l allow that. 7 14 what was the reason why it ended up being 150 pills? 4 12 • BY MR. McNEELEY: Briefly, Your Honor. Uh-huh. CROSS-EXAMINATION BY MS. Q. FITZGERALD: So, ma'am, you're saying t hat you were MART I NA REPORTING SERVICES (239) 334 - 6545 330 • • 1 present with John Daniels in that vehicle that the 2 detective and Woody entered that day, 3 correct? 4 A. Yes. 5 Q. Okay. And you admitted that you peeled the 6 label off of the pill bottle that had the pills within 7 it, the Oxycodone, 8 A. Uh-huh. 9 Q. Okay. correct? And you gave those pills, 10 bottle with the pills inside of it, 11 know is an undercover de t ective, that pill to who you now right? 12 A. I guess I 13 Q. And you said before that -- between did. I don't remember it, though. 14 Mr. McNeeley talking about the hundred pills or the 15 150 pills, 16 that -- is that correct? you said your memory gets kind of hazy; 17 A. Uh-huh. 18 Q. Is that what you said? 19 A. Uh-huh. 20 Q. Okay. 21 • September 18th, So you believe that you gave the pills to the undercover detecti v e, 22 A. Yes. 23 Q. Okay. 24 correct? 25 A. is correct? And he in turn handed you $1,200, Yes. MARTINA RE PORTING SERVICES (239) 33 4-6545 331 • 1 2 MS. MR. McNEELEY: questions, 7 8 • BY MR. Q. McNEELEY: When you gave the -- the question was did you give the pills to the detective. Did you feel like you were giving it at the behest of John Daniels? 11 MS. 12 THE COURT: 13 You may step down . 14 (Witness excused.) FITZGERALD: Objection, Your Honor. Sustained. 15 16 THE COURT: 17 MR. for a second, 19 witness. I'd like to talk to my client Your Honor, MR. McNEELEY: Your Honor, the defense would like to call John Daniels to the stand. 23 MS. 24 THE COURT: No, no, no, no, no . 25 about the next possible (Discussion held off the record.) 21 22 Do you have anything further? McNEELEY: 18 20 • One follow-up question to her REDIRECT EXAMINATION 9 10 Your Your Honor. 5 6 No further questions, Honor. 3 4 FITZGERALD: no, FITZGERALD: no, no, Your Honor no, No, no, no. no. No. MARTINA REPORTING SERVICES (239) 334-6545 No, no. No. No, 332 • 1 Jury, this case amongst yourselves. 3 you in just a few moments. 4 (Thereupon, 5 courtroom at 5:41p.m.) THE COURT: 7 Ms. 8 to testify. 9 MR. 10 12 13 Mr. the jury was excused from the Daniels is represented by Erwin and she told you tha t McNEELEY: I ' l l be back with Your Honor, he was no t go i ng that's not what she said to me. 11 THE COURT: her, I MR. She said -- she said n o. I saw h eard he r . McNEELEY: Your Honor, what she said was 14 she didn't know what h e was going to say, 15 was going to re commend that he say nothing, 16 that doesn't mean that's his intention. 17 THE COURT: Well, but she but you're not going t o call 18 him out here without h im having a chance to talk 19 to his attor n ey. 20 bac k th e re. 21 MR. 22 23 24 • Please don't discuss 2 6 • please go out. 25 And I don't eve n know if he's He shouldn't be . McNEELEY: We requested him to be here since he wa s a co -de f endan t . THE CO URT: I didn't. there on your word, MR. McNEELEY: If he was kep t back I'm really upset. Your Honor, this morning in MARTINA REPORTING SERVICES (239) 33 4- 65 45 333 • 1 court we asked if he could remain here because he 2 was going to us e d 3 THE COURT: 4 MR. McNEELEY: 5 THE COURT: I think the problem We are not going to do this right now. 7 without his attorney being present. 8 been sentenced. 10 11 I am n o t going t o bring him out here MR. Mc NEELE Y: Hon o r, He has not And I told you that earlier. I got the i mpressi o n , that the Court wa s saying that I THE COURT: No impression. 12 told you and it wasn' t 13 impression . 14 MR. McNEELEY: I You r -- know what I -- don't get any Wel l , I wo uld li k e John 15 Daniels to t ak e the stand if possible. 16 could confirm a lot of the story that I couldn't 17 get through because i t 18 only other person that talked t o Woody. 19 20 • And I didn't say y es. 6 9 • remain as a witness. was hears a y, He -- he and he's the If I'm if she objected for every other thing that T HE COURT: Right now you have an ethical 21 question. 22 if you called someon e who may be taking the Fifth 23 Amendment, 24 issue. 25 Yo u h av e a n et hi c al q u esti on n o w, you have an issue . that That's an ethical Please bring the jury out . MARTINA REPORTI NG SERVICES ( 239 ) 33 4-6545 334 • 1 THE COURT BAILIFF: 2 MR. Your Honor, can I make a motion to the Court? 4 could have a cont i nuance until tomorrow then so I 5 could talk to Kim Erwin and see if he could 6 testify. I was going to ask if we 7 (Thereupon, 8 courtroom at 5:45p.m.) 10 THE COURT: the jury was assembled in the All right. Members of the jury, right now it's 5:45. 11 There is no hope of completing this case at any 12 reasonable hour, 13 14 15 so I'm going to break for today. I'm going to ask that you be back here at -probably outside at 9:00 a . m. tomorrow. I have a few matters to take care of at 8:30, 16 and at 9:00 a.m. we'll begin the trial again. 17 Okay? 18 Please do not discuss this case amongst 19 yourselves. 20 go down to that shopping center. 21 22 • sir. 3 9 • McNEELEY: Yes, If you can avoid it, Okay? We'll see you tomorrow morning at nine. Thank you. 23 (Thereupon, 24 courtroom at 5:45p.m.) 25 please do not THE COURT: the jury was excused from the Did you receive any notice of any MARTINA REPORTING SERVICES (239) 334-6545 335 • 1 type of affirmative defenses? 2 MS. 3 THE COURT: 4 MR. McNEELEY: FITZGERALD: No, Your Honor. 9:00 tomorrow morning. Yes, Judge . 5 6 7 (Thereupon, the proceedings were concluded at 5:46p.m.) 8 9 10 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 • 25 MARTINA REPORTING SERVICES (239 ) 334 -6 5 4 5 336 • 1 MARCH 24, 2010 - 2 3 MORNING SESSION 9:02 A.M. (Thereupon, the following proceedings were had : ) 4 5 6 MR. 8 THE COURT: 10 11 McNEELEY: Yes, Mr. Your Honor. McNeeley, do you have any objections or anything with the jury instructions at this point? MR. McNEELEY: The only thing I was going to 12 ask the Court to add would be an instruction on 13 duress and instruction on abandonment. 14 15 16 17 18 • Have you had an opportunity to go over the jury instruc t ions? 7 9 • THE COURT: MS. FITZGERALD: I don't think there has been enough to establish duress at this poin t . As to abandonment, I don't know how that applies at all. The second element of the duress instruction 19 is the danger threatens significant harm to 20 herself, himself, 21 THE COURT: 22 MS. third person. Physical harm. FITZGERALD: Physical harm. 23 that being made to leave a 24 under that physical injury, 25 required for the duress instruction. residence is -- falls and imminence that is MARTINA REPORTING SERVICES (239) I don't see 334-6545 337 • 1 MR. the duress would be combined with being thrown out of the house. 3 I 4 legally sufficient, 5 that she had testified she tried to secrete the 6 pills in the side door of the car because she 7 didn't want to go through with it. 9 agree with the State, I don't think that's but combined with the fact When they started bickering, the testimony -- and even on the tape you hear them talk about a 10 knife. 11 i t on the counter and looking at her saying quit 12 playing games, 13 car, 14 going to her side of the car and to grab her out. He pulled out like a pocket knife and put quit playing games, MS. 16 THE COURT: FITZGERALD: I didn't hear that at all. Now we're at the issue --and everybody is back there talking, 18 THE COURT BAILIFF: 19 THE COURT: 20 21 22 got out of the walked around and as if he might have been 15 17 • Your Honor, 2 8 • McNEELEY: correct? Correct. My understanding is he does not wish to testify. THE COURT BAILIFF: As of yesterday that is what he represented to the deputy. 23 (Discussion held off the record.) 24 THE COURT: 25 Do you have a copy of the instructions for me or is that -- MARTINA REPORTING SERVICES (239) 334-6545 338 • 1 I gave the only copy that I had to Mr. 3 before we make a bunch of copies of instructions 4 that were just going to be tossed out 6 McNeeley. THE COURT: charge conference before. MS. FITZGERALD: 8 MR. McNEELEY: 10 All right. I also wanted to add a lesser included. THE COURT: If there's any Category I 11 Includeds, 12 be as to weight. I MS. 14 THE COURT: Included, 16 Included. MR. I'm not sure. FITZGERALD: 15 Yes . If there's a Category I Lesser we will give the Category I McNEELEY: Okay. Your Honor, 18 going to ask for a simple sale. 19 in the -- 20 21 22 23 24 25 THE COURT: believe so. Lesser believe the lesser includeds would 13 17 And just to make sure Because we'll have to have a 7 9 • FITZGERALD: 2 5 • MS. No, Lesser I was also Is that included I don't believe so. I don't I don't believe i t ' s a Category I. Category I is trafficking in cocaine. Trafficking in illegal drugs. Category I is trafficking required lower quantities of legal drugs, that's it. MARTINA REPORTING SERVICES (239) 334-6545 339 • 1 2 This says 14 grams. 4 The testimony we have here is 18.3 grams. 5 MR. McNEELEY: I wanted to make an argument 6 to the Court -- or to the jury that the different 7 pill manufacturers could possibly have an impact 8 on what she should be charged wit h . My theory was that she had testified when she 10 got the pills, 11 John Daniels and that's why they had the 12 discussion in the car in front of the officer and 13 the detective 14 informant, 15 she had given them originally to or I mean the confidential about who had the pills currently. It seems unlikely, even though there's no 16 testimony, 17 would have or potentially could be unlikely to 18 have more than one type of pill in the same 19 bottle, 20 21 22 • substance was four grams on this. 3 9 • Lesser includeds on th is wo uld be quantity of that i t seems unlikely that a pharmacy so that number THE COURT: You'll get the lesser includeds under Category I. MS. FITZGERALD: Well, Your Honor, 23 refer to the interrogatory, 24 trafficking in 14 grams or more, 25 would be four grams? would i t just be the and then two MARTINA REPORTING SERVICES (239) when you 334-6545 340 • 1 2 included, 3 amount -MS . 5 THE COURT: 8 THE COURT: Okay. -- over 14, FITZGERALD: was the amount over All right. If you do that, that's all right, too. 10 MS. 11 THE COURT: FITZGERALD: MS. 14 THE COURT : All right. You should probably have less than four grams, 13 15 the lesser not guilty. MS. 12 think -- well, FIT ZGERALD : 7 9 • 18, I do you find trafficking -- was the 4 6 • THE COURT: over four grams, FITZGERALD: trafficking, Well, Well, no, over 14 grams. if i t ' s -then i t ' s not so i t ' s got to be four 16 Is she still talking in there or do we know? 17 Let's get it rolling here. 18 MS. FITZGERALD: 19 those other. 20 make sure I 21 interrogatory, 22 i t ' s done properly. 23 THE COURT: 24 MS. 25 Well, I've gotten rid of Do y o u find that get this. so I I just want to This is my first just want to make sure that Am I making you nervous? FITZ GERALD: We ll, thos e ot h er c a t e g o r i es, I've g o t t en rid of but d o you find that -- MARTINA REPORTING SERVICES (239) 33 4-6545 341 • 1 2 • i t ' s -THE COURT: I would want a question. 3 Defendant is guilty as charged of trafficking in 4 illegal drugs, 5 18 grams. more than four grams, more than 6 (Discussion held off the record.) 7 THE COURT: 8 MS. 9 (Discussion was held off the record . ) THE COURT: 11 MS. 14 MS. No, a not me. Let's get rolling. FITZGERALD: indention, 13 You're frazzled. FITZGERALD: 10 12 • yes, Okay. So a little little ERWIN: Your Honor, Okay. if I address the Court very briefly about Mr. 15 THE COURT: Yes. 16 MS. I've talked to Mr. ERWIN: may Daniels. Daniels and I 17 th in k he's a little bit on the fence righ t 18 to what he wants to do. now as 19 Mr. 20 client, 21 present to see i f he intends to invoke or if he 22 has information that could assist in 23 Mr. 24 the Court. 25 McNeeley is requesting to speak with my if the Court would allow him to be McNeeley's case, THE COURT: No, but that is of course up to that's -- the last word this MARTINA REPORTING SERVICES (239) 334-6545 342 • 1 Court had yeste r day was that he was not going to 2 testify. 3 jury, 4 problem. MS. 6 THE COURT: We're getting a late start as it 8 MS. Your Honor, 9 THE COURT: 10 ERWIN: Your Honor -- is ERWIN: I don't want -- -- but go talk. We can get him in there and talk in there. MS. ERWIN: 11 Okay. I don't want to disagree 12 with the Court. 13 Court mentioned it yesterday and I believe I 14 smiled. 15 that was my suspicion, but I wasn't positive. 16 17 19 I had ran it by him when the As I was going to say, THE COURT: I thought that Whatever my perception was is what my perception was. MS. ERWIN: 18 I'm fine with that, Judge. you. 20 (Discussion held off the record.) 21 THE COURT: 22 MR. McNEELEY: 23 • I got a li t tle bit upset because that is a 5 7 • When he was called in front of the Okay. Mr. Daniels will not be testifying. 24 THE COURT: 25 going to rest. Okay. Then I take it you're MARTINA REPORTING SERVICES (239) 334-6545 Thank 343 • 1 2 3 MR. McNEELEY: stand? Okay, If -- is she still on the yeah, we're resting. (DEFENSE RESTS) 4 5 6 MS. 8 THE COURT: 10 11 12 FITZGERALD: instructions? Your Honor. Do we have the jury Of course everybody has a copy. Let's go over them. MS. FITZGERALD: does have a copy, Mr. McNeeley, 14 MR. McNEELEY: 15 No, Okay. 13 Okay. No, not everybody Your Honor. we can -Run down to the fifth floor, right? 16 MS. 17 I'm sorry, 18 THE COURT: 19 • Do you have any rebuttal or anything? 7 9 • THE COURT: FITZGERALD: Yeah. Your Honor. I guess the jury would be more comfortable in the jury room? 20 THE COURT BAILIFF: 21 THE COURT: Do I Do they have a choice? have a choice? They have a 22 choice; they could stay out there or they can be 23 in the jury room. 24 THE COURT BAILIFF: 25 THE COURT: Jury coming in. All right. We're going to bring MARTINA REPORTING SERVICES (239) 334-6545 344 • 1 2 (Thereupon, 3 jury room at 9:22a.m.) 4 5 6 THE COURT: the jury was assembled in the Sometimes Gillespie will file a story without ever being in the courtroom. MS. FITZGERALD: I haven't seen anything. I 7 looked this morning online just to check the news 8 and I haven't seen anything. 9 10 11 12 • in the jury and put them in the jury room . 13 THE COURT: Okay. computer world, I'm going into the clawing, scratching, screaming. Okay, go get the instructions or whatever we're doing. We need copies to go over them. (Thereupon, a brief recess was taken.) 14 15 16 (CHARGE CONFERENCE) 17 18 • MR. McNEELEY: Your Honor, there was one more 19 potential jury instruction I was going to 20 request, 21 -- the testimony that was presented to the Court 22 during trial, 23 their burden to show that her intent was involved 24 in wanting to sell the drugs. 25 that based on the CI not being present in court and that would be based on the testimony I don't know if the State's met And we're asking MARTINA REPORTING SERVICES {239) 334-6545 345 • 1 to testify about how the transaction was created, 2 how the police officers could not testify about 3 how the transaction was created, 4 at least argue to the jury the idea of 5 entrapment. 6 the police officers, 7 agent for the confidential informant, 8 how 9 • • That we don't know what happened, THE COURT: who are not the control whether or not you have a wire." 11 just got busted because of that." 13 didn't know "Lift up your shirt so I can see 10 12 we would like to MR. McNEELEY: And, "My son And of her testimony, that was at the behest of -- 14 THE COURT: 15 whatever you want, 16 instruction you're getting is trafficking, 17 excess of four grams or is it in excess of 14 18 grams or not guilty. 19 you're getting. 20 MR. 21 issue I Entrapment? McNEELEY: No. You can argue but you're not getting-- the in Those are the instructions All right. That's another wanted to bring up. 22 THE COURT: 23 MR. 24 THE COURT: 25 MR. There's another issue? McNEELEY: There is. Keep 'em coming. McNEELEY: No, no. I was saying that was MARTINA REPORTING SERVICES (239) 334-6545 346 • 1 2 FITZGERALD: And I just want to make a comment that Mr. 4 detective that he actually -- he and the 5 confidential informant arranged the deal with 6 Mr. 8 9 McNeeley elicited from the Daniels the day before, MR. McNEELEY: so -- Right, Mr. Daniels and the Detective Armato. Oh, right, Mr. Daniels and Detective Armato, 10 but there was testimony that this confidential 11 informant had been calling prior to -- 12 THE COURT: All right. Do we have a copy of 13 the instructions on 14 over like weighing the evidence and 15 MS. FITZGERALD: we don't, so I can't go The weighing the evidence, 16 six through ten, 17 they apply in this case. 18 Mr. McNeeley would have an objection to that. 19 20 21 22 • MS. We could look at these right now . 3 7 • the last one. I'm sorry, they're gone. I don't think that I don't mean to be that they rarely apply and I THE COURT: I don't think Okay. it's just just I don't know if I'm going to make lunch today? 23 (Discussion was held off the record.) 24 MS. 25 THE COURT: FITZGERALD: May I approach, You may . MARTINA REPORTING SERVICES (239) 334-6545 Your Honor? 347 • 1 2 don't see anything wrong with weighing the evidence. We've had an expert. 4 We've had the defendant testifying. We don't have any defendant's statements. 6 Rules for deliberation. 7 Cautionary. 8 Verdict. 9 "Submitting the Case to the Jury" and the 10 verdict form. 11 verdict to answer one of the questions, 12 ques t ion that is applicable. 13 MS. 14 THE COURT: 15 16 17 I will instruct them on the MS. Okay. All right? FITZGERALD: I ' l l ask them just to And leave the other one blank if they don't 19 MS. 20 THE COURT: Right. FITZGERALD: Okay. Are we ready to proceed or do you need more time or what's the deal? MS. FITZGERALD: but, The State is ready to 23 proceed, 24 for each of the jurors? 25 the answer one of those questions. THE COURT: 22 Okay. FITZGERALD: 18 21 • I 3 5 • All right. THE COURT: Your Honor, No, I would you like copies don't th i nk so. MARTINA REPORTING SERVICES (239) 334-6545 348 • 1 MS. 2 THE COURT: 3 MS. 4 THE COURT: 5 MR. McNEELEY: Okay. All right. They're going to get my copy. FITZGERALD: All right, Mr. that's fine. McNeeley? Did I hear correctly, Your Honor, 7 form, 8 should only mark one of the interrogatories? that you were saying that the verdict that you would instruct them that they THE COURT: "There are two questions, only 10 answer the question that is applicable," 11 or something like that. 12 written down: 13 that if they find i t ' s more than four grams and 14 less than eight -- 14 grams, 15 four grams. 16 14 grams. 17 I Answer ... We could maybe have that well, I ' l l tell them to hit more than If i t ' s over 14 grams, don't know. hit over I ' l l ask them to check-- if 18 they find that the weight has been proven, 19 check for the highest amount, 20 • No, 6 9 • FITZGERALD: MS. 21 nos removed then? 22 less confusing to th e THE COURT: 24 MS. 25 THE COURT: Do you think that would be Yes, FITZGERALD: and put an "or" in. Would you like the yeses and FITZGERALD: 23 to jury? just the question. Okay, so just the questions. Just the question, MARTINA REPORTING SERVICES (2 39) 334-6545 "or," and put 349 • 1 2 3 FITZGERALD: Okay. There's an "or" in between them. THE COURT: Yes. 5 All right. Are we ready? 6 MR. 7 THE COURT: 9 10 11 12 13 McNEELEY: MS. Your Honor. Are you going to rest, FITZGERALD: THE COURT: MS. Yes, Your Honor. And you're ready to proceed. FITZGERALD: Yes, I mean assuming I'm going to split the time . 15 MS. You do. FITZGERALD: Yes. I won't -- I won't use it all up. 17 THE COURT: 18 MS. All right, Yes, FITZGERALD: Twenty and ten. 20 THE COURT: 21 MS. twenty and ten. ten. I'm sorry, (Thereupon, 23 courtroom at 10:09 a.m.) 25 Judge. All right. FITZGERALD: THE COURT: Thank you, I thought you said 20 of ten. 22 24 then we're Twenty and ten? THE COURT: 19 Yes, going to go into closings? 14 16 • MS. 4 8 • an "or" in there . Judge. the jury was assembled in the Folks, I apologize, but we had some matters that we had to take care of, MARTINA REPORTING SERVICES (239) 334-6545 but 350 • 1 2 Mr. McNeeley. 3 MR. McNEELEY: Yes, Your Honor. at this t ime rests. 5 (DEFENSE RESTS) 6 THE COURT: 7 Members of the jury, both the State and the 9 All right. defendant have now reste d their case. The attorneys will now present their final 10 arguments. 11 attorneys say is not evidence. 12 listen closely to th e ir arguments. 13 intended to aid you in understanding the case . 14 Please remember that what the However, Each side will have equal time, do They are but the State 15 is entitled to divide this time between an 16 opening argument and a rebuttal argument after 17 the defendant has spoken. 18 And with that, Ms. 19 MS. 20 21 22 FITZGERALD: Fitzgerald? May it please the Court, Counsel. MR. McNEELEY: Your Honor, I -- may I approach very briefly? 23 24 • The defense 4 8 • we' r e re ad y to get g o ing right now . 25 MARTINA REPORTING SERVICES (239) 334-6545 351 • 1 2 (Thereupon, out of the hearing of the jury, 3 MR. 4 jailee? 5 6 a sidebar conference was held, McNEELEY: as follows:) Do I have to bring in my I'd like to renew my JOA arguments, made earlier. 7 THE COURT: 8 (Sidebar conference concluded.) 9 MS. 10 All right. FITZGERALD: THE COURT: They're denied. May I proceed, You may. 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 • Judge, 25 MARTINA REPORTING SERVICES (23 9 ) 334-6545 Your Honor? 352 • 1 (STATE'S CLOSING ARGUMENT) 2 3 4 MS. I good know there's been a lot of waiting around 6 and a lot of time sitting in here and I 7 to thank you for your attention. 8 appreciate i t and I will only ask for your 9 attention a little bit longer. 10 just want We really do Like the judge said, what the attorneys say 11 during closing argument is not evidence, 12 just used to assist you in coming to your 13 deliberations when you're going -- go back in the 14 room. 15 You heard the facts of this case. 16 from Detective Armato, 17 Van Houten, 18 Mr. 19 herself. 20 • Members of the jury, morning. 5 • FITZGERALD: it's You heard you heard from Detective you heard from the FDLE analyst, Putterbaugh, and heard from the defendant You also heard an audio of the transaction 21 where you hear t he defendant, 22 the entire -- you hear the entire thing. 23 asks the detective to lift up his shirt to see if 24 he's wearing a wire, 25 counts them out, Ms. Nowling, and She she hands him the pills, he hands her the $1,200. MARTINA REPORTING SERVICES (239} 334-6545 And he 353 • 1 actually the defendant got up there and said, 2 11 3 11 So you heard on the audio what occurred and the detective told you what occurred and she 5 confirmed that, 6 occurred. yes, that was -- that actually The judge will give you some instructions and 8 i t ' s very important that -- what I'm saying is 9 just my interpretation of what the judge is going 10 to tell you. 11 what goes. 12 law is, 13 Ms. Whatever comes from the judge is Okay? So whatever the judge says the that is what you should follow. Nowling is charged with trafficking in 14 illegal drugs, 15 order to prove that, 16 following four elements. 17 specifically Oxycodone. And in the State has to prove the And the first one is that Mary Nowling 18 knowingly sold, 19 delivered, brought into Florida or possessed a 20 certain substance. 21 22 23 24 • I did all that. 4 7 • 'ies, 25 purchased, manufactured, Now here we're talking about selling, would be the first option, How did we do that? so that and we proved that. She handed him 150 pills and he gave her $1,200 in exchange for that. Number two: The substance was Oxycodone or MARTINA REPORTING SERVICES (239) 334-6545 354 • 1 any mixture containing Oxycodone . 2 Now y ou've heard from Mr. 3 FDLE who told you that he tested the pills. 4 deals with these types of pills, 5 thousands of times. 6 of years he's dealt with them almost constantly, 7 he testified to. 8 these substances -- the substance was Oxycodone. 9 in the past couple And when he tested them, The third element is: 11 four grams or more at least. Okay. Mr. yes, The quantity of the substance involved was 14 grams or more or Putterbaugh also testified that he 13 used the scales they use that are calibrated and 14 regularly checked; he weighed those 150 pil l s 15 without the packaging, 16 and they weighed 18.3 grams, 17 grams. 18 element. 19 • In fact, He the Oxycodone, 10 12 • Putterbaugh from without the pill bottle, well over four So the State has proven the third As to the fourth element: Mary Nowling knew 20 that the substance was Oxycodone or any mixture 21 containing Oxycodone. 22 listened to, 23 said that she doesn't take them; she's got a 24 prescription for them, but she doesn't take them. 25 Now, And on the audio that you she -- she knew what they were, she she got on the stand and said she has MARTINA REPORTING SERVICES (239) 334-6545 355 • 1 back pain and that's why she has them, 2 also said on the audio that she doesn't take 3 them. 4 mean?" 5 personally take them. 6 • • but she So you have to think about "what does that The You got a prescription and you don't judge is also going to give you an 7 instruction about principals. 8 yesterday morning, 9 happened between the 16- and the 14-year olds and I And if you recall talked about a party that 10 how they were helping each other out, 11 the 16-year-old had all of his friends over and 12 the 14-year-old didn't have any friends over, 13 they all moved the furniture -- or the 14 14-year-old helped the 16-year-old move the 15 furniture 16 move it back. 17 Well, are they both in trouble? 18 Well, the instruction for "principal" is the into the garage, even though but then helped him to 19 following: 20 person, 21 is a principal and must be treated as if he had 22 done all of the things that the other person, 23 persons, 24 One, 25 that th e If the defendant helped another or persons, did, commit a crime, the defendant if: the defendant had a conscious intent c r iminal act be done; and two, MARTINA REPORTING SERVICES (239) 334-6545 the or 356 • 1 defendant did some act or said some word which is 2 intended to and which did incite, 3 encourage, 4 persons, 5 6 • assist or advise the other person, or to actually commit the crime. To be a principal, the defendant does not have to be present when the crime is committed. 7 Now, 8 that Mr. 9 said. you heard from Ms. Nowling on the stand Daniels made her do it. Well, she did it. That's what she So you apply that 10 principal theory to this particular situation 11 here. 12 drugs. 13 also a principal . She was actually the person who sold the Mr. Daniels was with her, too, and is 14 When you go back into the jury room, 15 be able to see the photographs that you saw 16 earlier. 17 back the drugs, 18 not going to be able to take back audio, but you 19 are -- if you would like, 20 back here and listen to it again if that's 21 something you would like, 22 that. 23 • cause, you will You're not going to be able to take for obvious reasons, and you're you are allowed to come so don't worry about You will also be given a verdict form and 24 what it will say is the 25 also explain it to you, and the judge will but it will say: MARTINA REPORTING SERVICES (2 39) 334-6545 The 357 • 1 defendant is guilty of trafficking in illegal 2 drugs, 3 one question you'll need to answer out of two. 4 • and then you'll have two questions -- or The first one is the amount of drugs, 5 weight of drugs, more than 14 grams, 6 amount of drugs, the weight of the drugs more 7 than four grams, and you need to answer either 8 one of those questions. 9 defendant sold mor e than 14 grams, or is the So if you find that th e which is what 10 the State's asserting since FDLE weighed i t at 11 18.3, 12 question. 13 defendant is not guilty. 14 you should say yes to that specific And then the other option is the But based on this evidence and the testimony 15 you heard from all of the witnesses and th e 16 defendant herself, 17 defendant guilty of trafficking in i l legal drugs 18 over 14 grams. the State asks you to find the 19 Thank you very much. 20 MR. 21 THE COURT: 22 MR. May i t please the Court. McNEELEY: Mr. McNEELEY: McNeeley. Thank you, Your Ho no r . 23 24 • the 25 MARTINA REPORTING SERVICES ( 23 9) 334-6545 358 • 1 2 3 All right. This is the end, pretty soon you'll be getting the laws from the 5 judge or the jury instructions on how to apply 6 the law and you will be told the law, 7 get to combine the two. B everything you heard here today applied to the 9 law and make a decision if you think that Mary 11 12 13 then you You get to comb i ne Nowling is guilty or not guilty. I'm going to arm you with the reasons why you should find her not guilty. What everyone is forgetting here is that at 14 the time they went to the place to do this 15 transaction, 16 that amount -- prior to that date? 17 • MR. McNEELEY: 4 10 • (DEFENSE CLOSING STATEMENT) what do we know for sure prior to The CI Woody was known to her son, known to 18 her family. 19 deal to sell pills. 20 e c onomic situation, took advantage o f it and 21 bas icall y brou g ht her to this pla c e . Now she's 22 going along because sh e 's going through a lot of 23 bad things, 24 it just once, 25 MS. He -- him and John Daniels made this John Daniels knew of her and she thought, well, Jesus I ' l l do b ut that'll be it. FITZGERALD: Objec ti on, Your Honor, MARTINA RE PORT I NG SERVICES (239) 334- 6545 359 • • 1 2 THE COURT: 3 MR. Sustained. McNEELEY: By the time they got to the 4 location -- because remember the testimony was 5 that there was only one day's worth that she had 6 knowledge. 7 that they didn't remember or they never heard of 8 any o ther conversations, 9 them between Woody and John Daniels. The police were on the stand saying but they were aware of 10 Why is that important? 11 Because John Daniels was the target. John 12 Daniels is making the deal. 13 to Woody; 14 people who are friends and know her son and are 15 making the deal. 16 He's the one talking they're the same age . Those are the By the time she finds out that, hey, that is 17 a way to make money, 18 maybe I ' l l just do it, 19 the 17th after Woody showed -- not Woody, 20 me -- Jo hn Daniels said, 21 th ere , 22 • improper . I don't want to do it but she made that decision on excuse "I'll drive y o u over we'll come ba c k." What did she do when she got in the car, 23 after he held it for the entire night? 24 secreted i t in the car in the side passenger side 25 door . MARTINA REPORTING SERVICES (239) 334-6545 She 360 • • 1 2 we know what happened afterwards? 3 the tape. It's right on 4 Everyone is asking where the pills are. 5 She said some nonsensical thing to John 6 Daniels like, 7 probably not likely that that would be a 8 reasonable thing to say to him, 9 didn't anticipate having to respond to him "where didn't you have them still? That's because she 10 are the pills," because it would make no sense 11 that she wouldn't have them. 12 go through with it anymore. 13 was a bad decision and she tried to abandon this 14 whole deal. 15 pulls out his knife. 17 was. 19 She didn't want to It was stupid, What was the response of John Daniels? 16 18 • And how do we know that happened and what do MS. FITZGERALD: it He We don't know how big i t Your Honor, facts not in evidence . 20 THE COURT: 21 MR. McNEELEY: 22 THE COURT: 23 MR. McNEELEY: Ov er r ul e d. Your Honor, that wa s -- Ove r r ul e d. You get to decide if 24 you remember that comment or not. 25 list e n to the tape and you did h e ar t h e t estimony MARTI NA REPORTING SERVICES ( 239 ) 3 34-6545 But if you do 361 • 1 from Mrs. 2 out a knife, 3 the car, 4 possibly going to do? 5 • put it on the dashboard, walked around the car, got out of what was he Was he going to go into the trunk, grab 6 something to hurt her? Was he going to go around 7 to the side of the car, open up the door and grab 8 him and pull him out ? 9 Keep in mind, 10 testified to you, 11 he doesn't know what he's g o ing to do or what his 12 complaints are going to be or what his actions 13 are going to be if all of a sudde n they don't 14 have the pills and they're sitting in the middle 15 of a par k ing lot that they wait e d for maybe 16 20 minutes to get to. 17 No t as the Detective Armato he had never me t her before, so to mention that John Daniels is the one 18 saying to her, 19 we' l l 20 Alabama. 21 Alabama." 22 • Mary Nowling that John Daniels pulled "Hey, come on, do it really fast. I let's just do this, You could go ba c k to know you need to g e t She had a car ac c ident. back to Her son's in jail. 23 The daughter-in-law who had the child, her 24 grandson has left, 25 k now, left her down here and, she's mak i n g a b a d decision. MARTI NA REPORT ING SERVICES (239 ) 334- 6545 you 362 • 1 2 guilty is because she tried to abandon it. 3 it was only because of what she was fearing what 4 John Daniels was going to do that made so i t that 5 she said, 6 let's go through with it." When you listen to the tape and you think about the relative positions of the people, 8 Detective Armato was behind John Daniels. He's 9 the driver. You She's in the passenger seat. 10 have Woody right here, 11 him in a second, the CI, and I ' l l get to talk more about him. But the detective hands the money to Mary, 13 which makes sense, 14 doing this, 15 you know, 16 person to hand him this. 17 I because otherwise he would be you know, and he's not going to -- he's not going to come from behind a think Detective Armato said that John 18 Daniels had -- was turning around talking to him, 19 but that doesn't clearly say that he's turning 20 around and able to face him and reasonably safe 21 and se c ur e in his own mind that there's a 22 transaction going on and everybody is above 23 board. 24 • "Okay, And 7 12 • But the reason why you should find her not 25 So i t makes sense that he's handing it to Mary, because i t ' s the most convenient thing to MARTINA REPORTING SERVICES (239) 334-6545 363 • 1 do . 2 John Daniels, who knows Woody, 3 do know how to do the business of crime, 4 that it'd be easier for him if he tells her to do 5 at all dirty stuff. 6 on him." 7 it was on Woody, 8 trusted, 9 up with. 10 • knows "Make sure he's got no wire Interestingly enough, it wasn't on him, who John Daniels knew and the man that he had set the transaction Mary Nowling is incidental. She happened to 11 be there because John Daniels is dragging her 12 across state lines, bringing her back to this 13 place to do this deal . 14 it. She tried to hide the pills from the guy 15 and, you know, 16 guy is going to do, 17 life experiences have been. 18 you can all imagine what could have been her fear 19 as to what John Daniels is going to do if it 20 looks like he's playing games with some guy who 21 is about to give him $1,200. 22 • because they She wanted to get out of in a moment of fear of what this because -- who knows what her All right? I think Woody, we know he got paid $200 at least, we 23 knew -- we know that he at least is the one who 24 actually counted the money. 25 she took the money, We know that because she started fumbling with it, MARTINA REPORTING SERVICES (239) 334-6545 364 • 1 doesn't want to be there doing this, 2 handed it to John Daniels. 3 testimony. 4 • That was the Detective Armato even said it looked like she 5 tried to count it, 6 him. 7 she's out of it, 8 mean she's upset and going through this and 9 decided just to give it to John Daniels to do it, but then she just gave i t to You could hear her. She doesn't sound like that she's sleep walking. I 10 because she shouldn't be the one counting i t 11 anyway. 12 for the detective to give the money to John 13 Daniels . 14 She was supposed to be convenient's sake We know that she bought groceries and paid 15 some bills for Woody. 16 out of this? 17 John Daniels. 18 So what is Woody getting Or I'm sorry, not for Woody, for So what is John Daniels getting out of this? 19 It wasn't even his pills. 20 setting this up because he knew that she'd get 21 money and be able to pay for these things. 22 his deal, 23 • so she just He's the one who's It's not hers. Trying to abandon it should give you reason 24 to find her not guilty, because she's trying to 25 say "I don't want to do it." And i t ' s only MARTINA REPORTING SERVICES {239) 334-6545 365 • 1 because of the knife on the dashboard that is 2 somehow creating this coercion that she feels I 3 better go through this 4 with this or I'm going to be in trouble. 5 You even heard her on the tape that she was 6 asking them how do you get a U-haul. 7 know where there's a U-haul place? 8 where there's a Boost Mobile cell phone place? 9 • Do you guys Do you know Because she knows she's going to Alabama. 10 The only reason she's doing this is to get back 11 to Alabama because she's gone through six months 12 of problems in Lee County. 13 Woody knew that . John Daniels knew that. 14 They took advantage of her. 15 it, but because of the actions and the fear 16 created by John Daniels, 17 it. 18 She tried to stop she went through with Don't you find it odd that Woody, the CI who 19 is setting this up, 20 amount of weight that's going to make it 21 trafficking? 22 • I better go through is asking just fo r the right When you think of trafficking, what do you 23 concoct in your head? What do you think of when 24 you hear trafficking? Is it a pill bottle that's 25 being sold or do you imagine, you know, MARTINA REPORTING SERVICES (239) 334-6545 like -- I 366 • 1 forget the gentleman, but the idea of people in 2 the Mexican border shooting up the town, throwing 3 fire bombs at people. 4 5 You are armed with the way to find her not guilty. 6 7 because she's there? 8 It doesn't make legal sense. That doesn't make sense. The real target we know from the police point 10 of view was John Daniels. 11 her name. 12 They didn't even know They knew her as Theresa. Why is that important? Because when she was 13 you n ger and she was still living here, Woody knew 14 her as her prior family name, 15 That's why he looked up 16 looked up Theresa Giddons. 17 Theresa Giddons. Detective Armato They were going after John Daniels. The 18 whole time that Woody is talking to the people to 19 make this deal, 20 make sure it's 150 pills, 21 • She tried to abandon this. They want to argue that she's a principal 9 • Is that trafficking? he's asking 150 pills, 150 pills, 150 pills. He's thinking 150 pills means more money to 22 me. 23 because I could show them I could do a good 24 thing. 25 It gives me better respect with the police, And just like a trawler that accidentally MARTINA REPORTING SERVICES (239) 334-6545 367 • 1 gets a dolphin, 2 Nowling. 3 every single thing they could find. 4 • Because the trawlers are picking up Aren't her circumstances maybe -- why didn't 5 they attempt to turn her into a confidential 6 informant? 7 MS. 8 THE COURT: 9 MR. She had been a better -- FITZGERALD: Objection, Your Ho nor. Sustained. McNEELEY: She was like a dolphin in a 10 net, 11 police's investigation, 12 to tend to show that she was not the active 13 participant or principal in this transaction . 14 because if she wasn't even the target of the that would even go more She is being commanded by John Daniels. 15 She's under pressures. 16 from the State is going to be that economic 17 pressure is never enough to do a bad act, 18 the fear of what John Daniels is going to do with 19 a 20 she hadn't known or hadn't seen Woody for 21 approximately 20 years, 22 reasonable to assume that she had a 23 fear that something might happen. 24 • that's what they got from Mary 25 And even if the argument I think knife and a car with three people she testified Even on th e tape, I think i t would be reasonable Detective Armato, tr ying to say that they -- I he was think he testified MARTINA REPORTING SERVICES (239) 334-6545 368 • 1 has he had met only one night before with John 2 Daniels. 3 them say something about, 4 to be there," or do you have that thing? 5 is my buddy going think he testified that that was Woody talking, 7 It sounds to me i t ' s him saying 8 having this conversation with John Daniels and 9 they're both going through the intermediaries of 11 but it still sounds to me like i t ' s him. Woody and Theresa, It also seems funny that Woody, showed up, 13 introductions, 14 it was John Daniels. 15 like he's or Mary Nowling. 12 when she he wasn't the one making the I mean, if I remember correctly. I think you go off your own recollection. 16 And in fact, 17 so you should listen to it again if you want to. 18 like the State said, i t ' s evidence, But my recollection is that i t ' s actually 19 John Daniels who is introducing everybody. 20 hey -- they knew Detective Armato was John. 21 • And I "Hey, 6 10 • But even on the audio track you hear "Hey, John, this is Theresa. That's what I Theresa, 22 is Woody." remember. 23 that's not what it is, 24 not the reason why I'm wrong in this 25 presentation . Hey, this But even if if i t ' s not that, that's It's just the deal was between MARTINA REPORTING SERVICES (239) 334-6545 369 • 1 John Daniels and the other individual, Detective 2 Armato or 3 knew they were going there for John Daniels. 4 got caught up in it, tried to get out of it, but 5 was in fear for her own safety. 6 We know that Woody had incentive. She I don't know why the detective wouldn't just acknowledge 8 that it seems reasonable that he would have an 9 incentive to make sure that he got a larger 10 quantity and as high quantity as possible, 11 because you get more money for it. And I -- you can use your common sense. 13 Isn't there possibly other things that would 14 prove to you maybe they would -- if he could 15 bring in more people, that means they would find 16 her more 17 often which means more money. 18 • Detective Armato 7 12 • excuse me, Woody. him more dependable and use him more Not to mention the fact that he was setting 19 up his childhood friend. 20 And if you remember, 21 stand, 28 grams. 22 what their -- that's the detective sat on the Why is that important? 23 MS. 24 THE COURT: 25 MR. McNEELEY: That's Objection, Your Honor. FITZGERALD: Sustained. Your Honor, can I approach on MARTINA REPORTING SERVICES (239) 334-6545 370 • 1 2 that? THE COURT: Keep going. 3 4 5 {Thereupon, a sidebar conference was held, out of the hearing of the jury, as follows:) 6 MR. McNEELEY: 7 THE COURT: 8 (Sidebar conference was concluded.) Keep going? Uh-huh. 9 10 • Well, I think it's fair to say 11 that they would -- the more weight possible, the 12 better for them. 13 This is a very, very serious felony. If you 14 believe that under the law and the facts that she 15 should be found guilty, 16 should do. 17 • MR. McNEELEY: then that's what you If, however, under the facts after you have 18 heard what you have heard, 19 sense applications to the facts as you've heard 20 them, 21 probably would have made the right decision. recognizing the common if you find her not guilty, then you 22 If you believe that it doesn't matter, 23 tried to stop this sale that she knew from the 24 day before by hiding the pills, 25 either that's not enough to be abandonment or if she if you think that MARTINA REPORTING SERVICES (239) 334-6545 371 • 1 you think that John Daniels putting a 2 the counter and flipping i t 3 that Woody, 4 "Hey, 5 that's a quaint way to kind of say, 6 break i t up, 7 didn't want to be assertive in a situation like 8 this. 9 I 10 • out to the extent supposedly his friend, is saying, can't we all just get along?" I know hey, let's because he doesn't want to be -- he You're all trying to k eep your cool. But bet you i t wasn't like what Detective Armato said, that they were all joking about it. 11 Why does John Daniels pull out a 12 why is he specifically arguing with her? 13 he probably knew that she didn't want to go 14 through this because she might have been hesitant 15 before. 16 knife? And Because But he had to convince her to do this. So he knows she's got to have the pills on 17 her. 18 the pills Mary? 19 anymore." 20 We -- that means she's guilty of being a 21 principal in a sale for this? 22 You should find her not guilty. 23 • knife on "Come on Mary, quit playing games. Where's I'm not going to play games He gets out of the car, walks around. It shouldn't be. The State gets to speak next, or las t , and I 24 don't get to respond, 25 things I've said when you hear what t he State has so please keep in mind the MARTINA REPORTING SERVICES (239) 334-6545 372 • 1 2 to say . It would not be the correct result to find 3 her guilty of this based on all these facts, 4 based on what you know about what the intentions 5 were of the different parties and about their 6 actions, 7 hard before you de c ide to find her guilty of a 8 very serious felony. and I think you should thi n k long and 9 Thank you. 10 THE COURT: Ms. Fitzgerald. 11 12 • 13 14 15 16 MS. FITZGERALD: May it please the Court, Counsel. 17 Members of the jury, I'm just going to speak 18 and this is the last y o u'll hear from any of the 19 attorneys, and I'm jus t 20 Mr. McNeeley just said, and also add this. 21 • (STATE'S REBUTTAL ARGUMENT) going to respond to what The judge is going to read you some rules for 22 deliberation and one of them is, 23 not be decided for or against anyone because you 24 feel sorry for anyone or a r e a ngry at a nyo ne. 25 And that's something that is really important this case must MARTINA REPORTING SERVICES (239) 334-6545 373 • 1 that you keep in mind when making your decision . 2 Mary Nowling was a target. 3 On the audio you hear Detective Armato do a 4 countdown: 5 Armato, 6 John Daniels and this person, 7 Giddons. 8 9 two, one, blah, this is Detective we are meeting with possibly Theresa when she answers the phone -- or excuse When Woody calls on speaker phone, goes to voicemail, 11 "Hi, what does that voicemail say? Calls back again, Daniels . 14 she's asking, 15 about the location, Theresa answers, where are we going? but Something asking about it. When Detective Armato got in the vehicle, "Let me see your shirt. 18 son just got sent up for this." Lift up your shirt. My Does that sound like somebody who is just 20 along for the ride, 21 business? 22 not John John Daniels does get on the phone, 17 19 first he this is Theresa." 13 16 • blah, 10 12 • blah, Well, me. Three, She was. or was she there to do And you can listen to that audio. Do e s i t 23 sound like there was any threat of violence going 24 on t here? 25 As Detectiv e Armato said, i t was bickering MARTINA REPORTING SERVICES (239) 33 4-65 45 374 • 1 like a husband and a wife, 2 would possibly see on ''Everybody Loves Raymond," 3 something like that. 4 threat or danger that Detective Armato would have given 6 a 7 perimeter watching to make sure that Detective 8 Armato and the confidential informant were safe? 9 It was his opinion that it was fine, 11 signal to the officers that were on the it was just bickering. As far as the knife, Detective Armato said he 12 never saw John Daniels with any type of weapon. 13 In fact, 14 and i t ' s completely what you think, 15 Woody talking about a pocket knife. 16 knife, 17 rope. 18 if you listen to audio, my take on it A pocket There's no evidence that John Daniels was chasing Mary Nowling around with a 20 anything like that. 21 that. knife or There is no evidence of And if she was really being threatened or 23 forced, 24 chitchatting going on. 25 but i t ' s good for cutting oranges or maybe some 19 22 • Don't you think if there was any rea l 5 10 • something that you there was an awful lot of idle And what is it? Does she want to get some MARTINA REPORTING SERVICES (239) 334-6545 375 • 1 money to get back to Alabama or is she doing it 2 because she was afra i d th at she was g o ing to be 3 kicked out of J o hn Da n iels' 4 she said. 5 i t ' s because she wants to go back t o Alabama, 6 that's why she's getting money. That's what And Mr. McNeeley is saying that, Which one is it? Even if you think that John Daniels set it up 8 and was th e mastermind -- and that's not what the 9 State is asserting -- Mary Nowling certainly 10 helped; 11 John Daniels c o unte d it, she handed him the pills, got the money. but gave it back to her. Mr. McNeeley-- and again you'll have to base 13 this on your recollection of the facts, but 14 yesterday when the defendant testified, she said 15 she only knew abou t 16 the deal an hour p r ior. Mr. McNeeley, the defense, would have you 17 beli e ve that s h e de c ided to hide the pills 18 because sh e knew abou t 19 before. 20 21 22 transaction the day So which is it? Just please use your common sense and return a verdict of guilty. Thank you. 23 24 • oh, 7 12 • h o me? 25 MARTINA REPORTING SERVICES (2 39 ) 33 4-654 5 376 • 1 2 3 4 Do you have a piece of paper for me? MS. 6 THE COURT: 7 Members of the jury, 8 attention during this trial. 9 attention to the ins tructio ns I'm about to give 11 FITZGERALD: May I approach, Your Honor? You may. I thank you for your Please pay you. Mary Fuller Nowling, the defendant in this 12 case, 13 trafficking in the illegal drugs, 14 illegal drugs, 15 28 grams. 16 has been accused of the crime of 14 grams or more, trafficking in but less than Certain drugs and chemical substances are 17 known or -- by law as a 18 Oxycodone or a mixture containing Oxycodone is a 19 controlled substance. 20 controlled substance. To prove the crime of traf ficking in illegal 21 drugs, 22 elements beyond a reasonable doubt: 23 • THE COURT: 5 10 • {CHARGE OF THE COURT) the State must prove the following four One, Mary Fuller Nowling knowingly sold, 24 purchased, 25 F lorida, manufactured, or possessed a delivered, brought into certain substance . MARTINA REPORTING SERVICES (239) 334-6545 377 • 1 2 Two, mixture containing Oxycodone. 3 4 Three, 5 Mary Fuller Nowling knew the substance was 6 Oxycodone or any mixture containing Oxycodone. To "sell" means to transf er o r deliver 8 something to an other person in exchange for money 9 or something of value, 10 or a pr om ise of money or something of value. 11 "Manufacture" means the production, 12 preparat i on, packaging, 13 propagation, compounding, 14 conversion or possessing of a controlled 15 substance, 16 l abeling or relabeling, cultivating, growing, either direc t ly or indirect ly. Manufacturing can be by e x traction from 17 substances of natural origin of independently by 18 means of chemical synthetics. 19 a 20 synthesis. 21 • the quantity of the substance involved was four grams or more. 7 • the substance was Oxycodone or any It can also be by combinat i on of extraction and chemical "Delivery" or "deliver " means the actual 22 constructi v e or attempted transfer from one 23 person to another of a co ntr ol l ed substance, 24 whether or not there is an agency relationship. 25 To "poss e ss" means to have personal charge of MARTINA REPORT I NG SERVICES (2 39 ) 334-6545 378 • • 1 or exercise a 2 control over the thing possessed. 3 Possession may be active or constructive. 4 11 Actual possession .. means: A, the controlled 5 substance is in the hand of or on the person; 6 B, 7 the hand of or on the person; 8 controlled substance is so close as to be within 9 ready reach and is under the control of the or the controlled substance is in a container in or C, the 10 person. 11 is not sufficient to establish control over the 12 controlled substance when i t is not in a place 13 over which that person has control . 14 11 Mere proximity to a controlled substance Constructive possession" means the 15 controlled substance is in a place over which 16 Mary Fuller Nowling had control or in which Mary 17 Fuller Nowling was -- had -- has concealed it. 18 • right of ownership, management or In order to establish constructive possession 19 of a controlled substance, 20 substance is in a place over which Mary Nowling 21 does not consider control, 22 Mary Fuller Nowling, 23 controlled subs t ance and, 24 controlled substance was within Mary Fuller 25 Nowling's presen c e. one, if the controlled the State must prove had control over the two, knowledge that the MARTINA REPORTING SERVICES (239) 334-6545 379 • 1 two or more persons may jointly possess an article, 3 exercising control over it. 4 of those persons is considered to be in 5 possession of the article. In that case, each If a person has exclusive possession of a 7 controlled substance, 8 may be inferred or assumed. 9 • that is, 2 6 • Possession may be joint; knowledge of this presence If a person does not have exclusive 10 possession of a controlled substance, 11 knowledge of its presence may not be inferred or 12 assumed. 13 the If you find the defendant guilty of 14 trafficking in illegal drugs, 15 determine by your verdict whether the State has 16 proved beyond a reasonable doubt that the 17 quantity of the substance involved was 14 grams 18 or more, but less than 28 grams. you must further 19 Principals. 20 If the defendant helped another person or 21 persons commit a crime, 22 principal and must be treated as if he or she had 23 done all of the things the other person or 24 persons did if: 25 One, the defendant is a the defendant had a conscious intent MARTINA REPORTING SERVICES (239) 334-6545 380 • 1 that the criminal act be done; and two, 2 defendant did some act or said some word which 3 was intended and which did incite, 4 encourage, assist or advise the other person or 5 persons to actually commit the crime. 6 the defendant not -- does not have to be present when the crime is 8 committed. When there are lesser included crimes or 10 attempts, 11 consider the possibility that although the 12 evidence may not convince you that the defendant 13 committed the main crime for which she is 14 accused, 15 other acts that would constitute a lesser 16 included crime. 17 in considering the evidence you should there may be evidence that she committed Therefore, if you decide that the main 18 accusation has not been proven beyond a 19 reasonable doubt, you will next need to decide if 20 the defendant is guilty of any lesser included 21 crime. 22 • cause, 7 9 • To be a principal, the The lesser crimes indicated in the definition 23 of trafficking in illegal drugs, 24 more, but less than 28 grams, 25 illegal drugs, 14 grams or is "trafficking in four grams, but less than MARTINA REPORTING SERVICES (239) 334-6545 381 • 1 2 will also be giving you the instructions on trafficking in illegal drugs, 4 but less than 14 grams. 5 will read exact l y the same. four grams or more, I will tell you that it Okay. Certain drugs and chemical substances are by 7 law known as controlled instances. 8 any mixture containing Oxycodone is a controlled 9 stance. 10 Oxycodone or To prove the crime of "trafficking in illegal 11 drugs," the State must prove the following four 12 elements beyond a reasonable doubt: 13 One, Mary Fuller Nowling knowingly sold, 14 purchased, manufact ured , 15 Florida or possessed a certain substance. 16 17 18 19 20 21 22 • I 3 6 • 14 grams." Two, delivered, brought into the substance was Oxycodone or any mixture containing Oxycodone. Three, the quantity of the substance involved was four grams or more. Four, Mary Fuller Nowling kn e w the substance was Oxy co d o n e or a mixture of Ox ycodon e. "Sell" mean s t o tra n s fer or deliver something 23 to another p erson in e xchange for money or 24 something of value, 25 something of va lue . or a promise of money or MART INA REPORTING SERVICES (239) 334-654 5 382 • 1 I 2 "Deliver" or "delivery" means the actual 3 constructive or attempt to transfer from one 4 person to another of a controlled substance, 5 whether or not there is an agency relationship. 6 To "possess" means to have personal charge of 7 or exercise the right of ownership, management or 8 control over the thing possessed. 9 10 • Possession may be actual or constructive. "Actual construction" means: A, the 11 controlled substance is in the hand of the person 12 or on the person; or B, 13 is in a container in the hand of or on the 14 person; or C, 15 close as to be within ready reach and is under 16 the control of the person. 17 the controlled substance the controlled substance is so Mere proximity to a controlled substance is 18 not sufficient to establish control over that 19 controlled substance when it is not in a place 20 over which the person has control. 21 • already talked to you about manufacture . "Constructive possession" means the 22 controlled substance is in a place over which 23 Mary Fuller Nowling has control or in which Mary 24 Fuller Nowling has concealed it. 25 In order to establish constructive possession MARTINA REPORTING SERVICES ( 2 39) 33 4-6545 383 • 1 of a controlled substance, 2 substance is in a place which Mary Fuller Nowling 3 does not have control, 4 Mary Fuller Nowling controlled over the 5 substance; and two, 6 substance -- the controlled substance was within 7 Mary Nowling's presence. 8 9 • the State must prove that knowledge that the Possession may be joint; that is, two or more persons may jointly possess an article exercising 10 control over it. 11 persons is considered to be in possession of that 12 article. 13 In that case, each of the If a person has exclusive possession of a 14 controlled substance, 15 may be inferred or assumed. 16 knowledge of its presence If a person does not have exclusive 17 possession of a controlled substance, 18 of its presence may not be inferred or assumed. 19 • if the controlled knowledge If you find the defendant guilty of 20 trafficking in illegal drugs, 21 determine by your verdict whether the State has 22 proved beyond a reasonable doubt the quantity of 23 substance involved, 24 than 14 grams. 25 you must further four grams or more, but less The defendant has entered a plea of not MARTINA REPORTING SERVICES (239) 334-6545 384 • 1 guilty. 2 the defendant is innocent. 3 with the defendant as to each material allegation 4 in the information through each stage of the 5 trial, 6 evidence to the exclusion of and beyond a 7 reasonable doubt. 8 9 • The presumption stays unless i t has been overcome by the To overcome the defendant's presumption of innocence, the State has the burden of proving 10 the crime with which the defendant is charged was 11 committed and the defendant is the person who 12 committed that crime. 13 14 15 16 17 The defendant is not required to present evidence or prove anything. Whenever the words ''reasonable doubt" are used you must consider the following: A reasonable doubt is not a mere possible 18 doubt, 19 Such a doubt must not influence you to return a 20 verdict of -- of not guilty if you have an 21 abiding conviction of guilt. 22 • This means you must presume or believe speculative, imaginary or forced doubt. On the other hand, 23 considering, 24 all the evidence, 25 conviction of guilt; if, after carefully comparing and weighing the evidence, there is not an abiding or, if, having a conviction, MARTINA REPORTING S ERVICES (239) 334-6545 385 • 1 one which is not stable, 2 vacillates, 3 every reaso n able doubt and you must find t h e 4 defendant not guilty because the doubt is 5 reasonable. 6 It is to the evidence introduced upon this trial a n d it al o ne you're t o look for that pr o of. 8 A reasonable doubt as to the guilt of the 10 11 12 • then the c ha rge is not proved beyond 7 9 • but one wh ich wavers and 13 14 15 defendant may arise from the evidence, conflict in the evidence or the lack of evidence. If you have a reasonable doubt, you should find the defendant not guilty . If you have no reasonable doubt, you sho u ld find t h e defendant guilty. It is up to you to decide what evidence is 16 reliable. 17 deciding which is the best evidence and which 18 evidence should not be relied upon in considering 19 your verdict . You should use your common sense in 20 You may find some of the evidence not 21 reliable or less reliable than other evidence. 22 You should consider how the witness acted, 23 well as what they said. 24 consider are: 25 as Some things you should Did the witness seem to have an opportunity MARTINA REPORTING SERVICES (239) 334-6545 386 • 1 to see and know the things about which the 2 witness testified? 3 4 Did the wit n ess seem to have an accurate memory? 5 6 Was the witness honest and straightforward in answering the attorneys' 7 8 Did the witness have some interest in how the case should be decided? 9 • Does the wi tness' testimony agree with the 10 other testimony and o t her evidence in the case? 11 You may rely upon your own c o nclusion about 12 the witness. 13 all or any par t 14 any witness. 15 collective discr e tion. 16 A juror may believe or disbelieve of the evidence or testimony of It is totally within your You could b e lieve everything a witness told 17 you, 18 witness told you, 19 those portions of a witness' 20 want to believe and th os e portion s 21 disregard. 22 • questions? you could totally disregard everything a It' s or you can pick and choose you wish to tot a lly within your p o wer. Expert witnesses are lik e other witnesses, 23 with one exception; 24 witness to give his opinion. 25 testimony that you However, the law permits an expert an e x pert's op i nion is only reliable MARTINA REPORTING SERVICES (2 39 ) 33 4 - 6 5 4 5 387 • 1 when given on a subject which you believe him to 2 be an exp e rt. 3 Like other witnesses, 4 disbelieve all o r any part of the expert's 5 t estimony. 6 The c o nstit u t i o n req u ires the State to prove 7 its accusa t ions against the d e fendant. 8 ne c essary for the defe n da n t 9 nor is the def en da n t required to prove her innocence. 11 defendant's gu i lt by evidence. It is up to the State to prove the The defendant in this case has become a 13 witness . 14 considera t ion of her testimony that you apply to 15 the testimony o f the other witnesses. 16 You should apply the same rules to These are s o me general rules that apply to 17 your discussion. 18 order to return a l a wful verdict. You must follow these rules in You must follow the law as it is set out in 19 • It is not t o disprove anything, 10 12 • you may believe or If you fail to follow th e 20 these instructions. 21 law, 22 justice. 23 follow th e law in this case. 24 depending upon you to make a wise and legal 25 decision in th is ma t t e r . your verdict will b e a mi scarriage of There is no r e ason f or failing to Al l of us are MARTI NA REPORTING SERVICES (2 3 9 ) 3 34 -6545 388 • 1 2 evidence that you have heard from the answers of 3 the witnesses and have seen in the form of 4 exhibits in evidence and these instructions. 5 anyone because you feel sorry for anyone or are 7 angry at anyone. 9 10 11 Remember the lawyers are not on trial. Your feelings about them should not influence your decision in this case. Your duty is to determine if the defendant is 12 guilty or not guilty in accord with the law. 13 Whatever verdict you render must be 14 unanimous; 15 same verdict. 16 that is, each juror must agree to the It is entirely proper for a lawyer to talk ~o 17 a witness about what testimony the witness would 18 give if called to the courtroom. 19 should not be discredited by talking to a lawyer 20 about his or her testimony. 21 • This case must not be decided for or against 6 8 • This case must be decided only upon the The witness Your verdict should not be influenced by 22 feelings of prejudice, 23 verdict must be based on the evidence and on the 24 law contained in these instructions. 25 bias or sympathy. Your Deciding a verdict is exclusively your job. MARTINA REPORTING SERVICES (239) 334-6545 389 • 1 I cannot participate in that decision in any way . 2 Please disregard anything I may have said or done 3 that made you think I prefer one verdict over 4 another. 5 6 in the information or guilty of such lesser 7 included crime as the evidence may justify, or 8 not guilty. 9 it should be for the highest offense which has been proven 11 beyond a reasonable doubt. If you find that no offense has been proven 13 beyond a reasonable doubt, 14 verdict must be not guilty. 15 then, of course, your Only one verdict may be returned as to the 16 crime charged. 17 that is, 18 verdict. 19 This verdict must be unanimous; all of you must agree to the same The verdict must be in writing, and for your 20 convenience the necessary forms of verdict have 21 been prepared for you. 22 form: 23 • If you return a verdict of guilty, 10 12 • You may find the defendant guilty as charged And this is the verdict State of Florida vs. Mary Fuller Nowling, 24 case number. 25 follows as to the defendant, Verdict: We, the jury, check one: MARTINA REPORTING SERVICES (239) find as 334-6545 The the 390 • 1 defenda nt is guilty as charged of trafficking in 2 illegal drugs; o r 3 guilty. 4 If you find the defendant is guilty of t r affi c kin g in i l legal dru g s, 6 was mor e than 14 gr a ms or do you find that it was 7 less than 14 grams, but mor e than four grams? Okay? Check 9 questions he re . 10 is appropriate, 11 do y o u fi n d that it y o u'll have a couple of Check only the o ne that you feel 14 or four. In just fe w momen t s you'll be take n to the 12 jury room by the ba i liff. 13 should do is elect a foreperson who will preside 14 over your deliberations like the chair of a 15 meeting. 16 The first thing you It is the foreperson's job to sign and date 17 the verdict f o rm when all of you have agreed on a 18 verdict in this case and to bring the verdict 19 back to the cou r tr oom when you return. 20 Your verdic t find in g the def e ndant either 21 guilty o r 22 verdict must b e the v e rd i c t 23 well a s the jur y as a who le . 24 • the defendant is not 5 8 • two, 25 not g ui lt y must b e unanimous. In cl os ing, The of each juror, as let me remind y o u that it is impor t ant yo u foll o w the law spelled out in these MARTI NA REPO RT ING SERVI CES ( 239) 3 3 4- 65 45 391 • 1 instructions in deciding your verdict. There are 2 no other laws that apply to this case. Even if 3 you do not like the laws that must be applied, 4 you must use them. 5 6 constitution and the law. 7 to violate the rules we all share. 8 9 10 11 • With that, No juror has the right I will be sending you into the jury room with a copy of these instructions, verdict form, the some notepaper and a pen. Should you have any questions, 12 out the question, 13 door, 14 question. 15 question. 16 please write sign it, date it, knock on the let the bailiff know that you have a I ' l l do my best to answer that Likewise, if you have reached a verdict, 17 simply knock on the door, tell the bailiff that 18 you have reached a verdict and I will cause all 19 of us to be gathered here to receive that 20 verdict. 21 • For two centuries we have lived by the We're going to be taking your cell phones. 22 Okay? 23 bench. We're going to leave them out here on the 24 THE COURT BAILIFF: 25 THE COURT: Laptop, too. And the laptop is going to have MART I NA RE PORTING SERVICES (239) 334-6545 392 • 1 to be taken, 2 here. too, and we'll keep them right out All right? 3 You ma y now retire to consider your verdict. 4 Excuse me. 5 6 7 seated. Ms. Lo vej oy, if you'd just remain Okay? Just leave them o n the bench, they're all right here. 8 (Ther e upon, 9 courtroom at 10:55 a.m.) 10 we'll make sure the jury was excused from the (JURY DELIBERATI ON ) 11 12 • 13 14 THE COURT: get it. 16 Ms. 18 19 She has stuff in the back room . 15 17 All right. She could go back and Okay. Lovejoy, you could go if you want to, don't have to stay here, you or you can do whatever. These attorneys may want to talk to you. You don't have to talk to them or you can. 20 ALTERNATE JUROR LOV EJOY: 21 THE COURT BAILIFF: 22 THE COURT: 23 • THE COURT BAILIFF: I can leave-leave? You were the alternate. You could leave-leave. But thank you very much for being here. 24 (Alternate excused at 10:57 a.m.) 25 THE COURT: All right. We got everybody's MARTINA REPORTING SERVICES (239) 334-6545 393 • 1 cell phone, 2 MS. 3 because just in case? FITZGERALD: Not going to go far 4 THE COURT BAILIFF: 5 MS. 6 7 8 9 FITZGERALD: Are you going to stay? Yes, want to hear the audio, THE COURT: because in case they I'm going to stay. All right. I'm just going to make some calls. (Thereupon, a brief recess was taken.) 10 • • 11 (JURY VERDICT) 12 THE COURT: I've been informed that the jury 13 has reached a verdict. 14 proceed? 15 MS. FITZGERALD: 16 MR. McNEELEY: 17 THE COURT: Are both sides ready to Yes, Yes, Your Honor. Your Honor. Please have them come out and 18 have them make sure they get their papers, 19 computers and phones and l ine them up in front of 20 the bar, their okay? 21 THE COURT BAILIFF: 22 (Thereupon, 23 courtroom at 11:38 a.m.) 24 THE COURT: 25 Ms. Yes, Your Honor. the jury was assembled in the All right. Manj e rov ic and the rest of the jury, MARTINA REPORT ING SERVICES ( 239) 334-6545 I've 394 • 1 been informed you have reached a verdict; 2 correct? 3 JURY FOREPERSON: 4 THE COURT: 5 Would you please give it to the bailiff. Okay. 7 Will the clerk please publish the verdict. 8 THE COURT CLERK: 10 11 12 13 14 15 16 17 18 19 • sir, we have. 6 9 • Yes, is that Nowling, The verdict is in the proper form. State of Florida vs. Mary Case Number 09-19670-CF-A. Verdict: We, the jury, find as follows to the defendant in this case: Count 1: The defendant is guilty as charged of trafficking -- trafficking in illegal drugs. "Do you find that the weight of the drugs is 14 grams or more?" Yes. So say we all, March 24th, Manjerovic, 2010, Kristen Foreperson. THE COURT: Mr. McNeeley, do you have any appli c at i on? 20 MR. 21 THE COURT : McNEELEY: No, Your Honor. Membe rs of the jury, I 22 thank you very much. 23 everybody or anybody you wish to, 24 have to talk about your service at all. 25 had a couple good days with us. want to You're free to talk to or you do n ' t You've And again, MARTINA REPORTING SERV ICES (239) 33 4-6545 thank 395 • 1 you very much. You are discharged . 2 (There u pon, 3 c o urtro o m at 1 1:4 0 a.m.) the jury was excused from the 4 5 • All right. The Court is going to 6 order a PSI, 7 will set sent enc ing f o r May 3rd at 1:30. presen t ence investigation. 8 MR. McNEELE Y: 9 THE COURT BAILIFF : Thank you, And I Your Honor. Th is way, please. 10 (Discussi o n was held off the r e cord.) 11 THE COURT : 12 MR. Count 4 ? McNEELEY: Your Honor, I'm fairly certain 13 sh e 's going t o plead, 14 trying to avoid was what has happ e ned, 15 not 16 17 18 19 • THE COURT: because the things she was and she's going t o fi g ht t he second one. THE COURT: Do we have a waiver of speedy trial or are there any issues there? MS. FITZGERALD: don't believe there has I been a p re v i o u s waiv e r. 20 MR. 21 case - - 22 MS. I'd be surpri se d if I had a McNEELE Y : Yes, FI T ZGERALD: there was a waiver on 23 Februa r y 2nd or the re was on e b e fore that 24 pretri a l 25 date. THE COURT: Al l righ t . We'll just let it MART I NA REPORTING SERVI CES (2 39 ) 33 4- 65 45 396 • 1 ride along . 2 3 4 (Thereupon, the hearing was concluded at 11:45 a.m.) 5 6 7 8 9 10 11 12 13 • 14 15 16 17 18 19 20 21 22 23 24 • 25 MARTINA REPORTING SERVICES (239) 3 3 4-6545 397 • 1 C E R T I F I C A T E 2 3 STATE OF FLORIDA 4 COUNTY OF LEE 5 6 7 • I, ANDREA J. 8 Reporter, 9 Realtime Reporter, STEFANICK, Registered Professional Registered Merit Reporter and Certified for the 20th Judicial Circuit of 10 Florida, do certify that I was authorized to and did 11 stenographically report the foregoing proceedings and 12 that the typewritten transcript of proceedings is a 13 true record . 14 15 Dated this 26th day of February, 16 17 18 19 20 Court 21 22 23 24 • 25 MARTINA REPORTING SERVICES (239) 334-6545 2011.