Sides argue issues before Parvin’s new trial

Court NewsBy Patsy Brumfield

Daily Journal

ABERDEEN – Whether Dr. David Parvin’s words will come back to haunt him are before a circuit court judge.

Wednesday, prosecutors and defense attorneys argued about whether his 2011 murder trial testimony can be used in a new trial set to begin Nov. 12 in Monroe County.

Judge Paul Funderburk said he will take the issues under advisement.

Parvin, a retired university economics professor, was convicted in 2011 of his wife, Joyce’s 2007 murder at their Monroe County home.

But last April, the Mississippi Supreme Court reversed his conviction and ordered a new trial, saying sufficient trial errors occurred although questions remained about what really happened.

Parvin maintains that the shotgun he carried accidentally misfired and killed his wife.

His new trial is set to begin Nov. 12 before Circuit Judge Paul Funderburk.

Wednesday’s hearing aimed at offering pre-trial issues for Funderburk’s consideration.

Prosecutors are assistant district attorneys Paul Gault and and Nebra Porter.

Parvin is represented by Jim Waide, Rachel Pierce Waide and James Robertson.

(Below is a running account of the proceedings in circuit court. Please excuse the typos and glitches likely as I type rapidly. Some situations are paraphrased.)

• • •

1:02 P.M. – Judge enters. Waide tells court he’s filed amended motion in limine, those are issues pending.

WAIDE – Robertson to present some issues. (Waide says some issues pertain to trial testimony, which he’ll get to after Robertson.)

ROBERTSON – Like to proceed with issues about testimony of Dr. Parvin. Motion we have in a sense is a shot in the dark in that we understand prosecution wishes to use all or part of prior testimony from earlier trial in new trial. But we don’t know exactly what parts. In any event, we would ask court to consider and instruct prosecution … to give us partciulars of what they want to use.

Two general points .. highly relevant … as to the general proposition about his testimony in 2011 … used at all are: 1. That his waiver of his privilege to self-incrimination … was a function of evidence that was impermissibly received according to MS Supreme Court. That is, of Dr. Stephen Hayne and other expert Grant Graham, held to be impermissible. If you look at his testimony … the substance of it repeatedly finds defendant commenting upon and responding to statements by Hayne and Graham in their expert testimony. Point is that the record reflects that prior waiver against self-incrimination was directly tied to their testimony. When MSSC holds that their testimony was not consistent … should not have been permitted… and they cannot testify again… that allows the defendant to go back to Square One himself again as to whether he will waive privilege to self-incrimination.

State’s response, we got yesterday … seeks to draw distinction between improperly induced testimony versus improper waiver against self-incrimination. The point is the same – doesn’t matter what the source of the testimony was that led to the waive. What matters is that state produced evidence that left defendant no choice but to take the stand and refute it. Given that testimony was deemed improper … situation is that Parvin should be allowed to start again.

Then question becomes: What about prior testimony? Answer … prior testimony cannot be used at all unless it’s admissible on some grounds except state wants to use it. Must be tied to some rule of evidence to make it admissible. Clear that testimony is not admissible as a confession or an admission. Point to make – I think you go back to opinion of MSSC last April. In last section of the opinion … court is considering Weathersby issue on appeal … if you strike testimony of Hayne and Graham, puts you in position and defendant entitled to acquittal. Court said, no, not true. Had One piece of testimony that was inconsistent to defense testimony … of mistress. If you look at the last section of MSSC … there, the point is that without the mistress’ testimony, it’s a Weathersby situation… in other words, court rejects argument that Parvin testimony made him eligible for acquittal under Weathersby because of her testimony. That establishes… that Parvin’s testimony is not an admission… that it is a description of an accidental shooting.. that without mistress testimony would have entitled him to an acquittal.

Before you can admit his prior testimony … after his waiver … before, msut at least establish that it was an admission. Law of this case … is that Parvin’s testimony was not an admission but description of an event. (Another name) case we cite … only difference with Stringer case … a co-defendant’s trial… testimony given … waived privilege. Judge ruled that because it wasn’t an admission, it was impermissible for state to proceed on that testimony.

State cites Faulks case … two problems: first, prior testimony at issue did admit defendant was an accomplice. That distinguishes it from Stringer and this case. Also, Faulks case … argument is made that testimony at first trial was somehow was improperly elicited and responsibility of prosecution. Nothing to that. But point – was no misconduct, in a legal sense, by state that led to defendant taking the stand.

In Parvin, he took stand because of improper testimony. Thus Faulks case is not this case and does not control it. Our position is that under general principal… state through its evidence erroneously admitted is the genesis and source of defendant waiving his 5th Amendment privilege and takes stand… now, he should be able to start again.

Second, testimony cannot be admitted under any other rule of evidence because it is not an admission… because the law of the case is that Parvin’s testimony … does establish … other than admission against his interest …

I realize the question… if he could take the stand – don’t anticipate that he would in this coming trial – won’t be made until we get there. Question of impeachment is out there but that’s not for today.

Only if state can use this testimony as part of its case in chief. We say it cannot be … a lot in the transcript by defendant … from first trial… has nothing to do with anything that should be admitted in next trial.

In alternative, we ask tht prosecution be required to identify by line and page exactly that which it proposes to admit … different grounds to object. Some of it reflects rulings made by the court that it should be precluded … sustained. No business in the trial.

But these two grounds why testimony shouldn’t be included at all. (Says will stop for state to respond, then move to next one.)

GAULT – Preliminarily … I know Robertson framed alternative issue … about what state would proffer for a redacted transcript. In state’s reply brief, hasn’t submitted such a transcript yet. One reason why, state felt perhaps should be a ruling from the court on the general issues discussed by Robertson, in hopes that submitted redacted transcript could be done more efficiently. About statements by defendant … state recognizes his right … state does agree with defense from the standpoint that some portions of testimony .. if they objected, would not be admissible.

At first … like to address defendant’s argument about Harrison, 1968 USSC case. Court is aware on that case that original trial, three confessions by defendant were admitted into evidence. In case in chief, defendant testified. On re-trial, original confessions were not admitted but his prior trial testimony was admitted. One thing Harrison didn’t do … was hold differently that former testimony can be admissible in a subsequent trial.

Secondly, … disagree with defense on this … the source of reversal… Harrison deals with violation of defendant’s 5th Amendment rights… a coercive testimony. Miss. cases do nothing to enlarge this scope. Defense cites Faulks case … if Harrison were applied as defendant would have it done.. no room at all for Faulks hope … swallow up any ability for any prior testimony to be admitted. Harrison deals with abuses of constitution by police, which did not happen here.

Also, in 1985.. another case before … USSC looked at it as “fruit of the poisoned tree,” which deals with a gross violation of the constitution… often 5th and 4th amendments. Police abuse. Decision as police deterrence. No appliction of that in this case.

On that principal, state says Harrison’s application would be misguided.

Make a few points about waiver … mentioned by Robertson. In 1985, Oregon case got to USSC (Ore v Elstad). Did not deal with former testimony but deal with exclusionary rule and waivers. Important … in Oregon case, defendant suspect arrested and on the way to station, defendant confessed to the crime accused of. No Miranda warning. The subsequent… got to station, had confession, Mirandized him and took another statement. He again confessed. At trial, the state did not introduce the original confession but subsequent one. Oregon Supreme Court reversed ands aid fruit of poisonous tree. USSC watered down exclusionary rule … said no coercion. Still valid waiver.

In this case, there is no abuse of the 5th or 4th amendments to begin with. Already outside Harrison. Secondly, even with Harrison about waiver… that rule has been watered down by USSC. Another example… don’t have the case off hand… as it applies to waivers. Know no abuse in police action.

Longstanding rule … that a waiver is not involuntary, even if police misrepresent the facts to the defendant. Of course, our appellate courts have held it doesn’t render statement by defendant inadmissible. Inapplicable in present case.

I know Robertson cited Faulks (Fulks?) … as important on larger issue of “is the testimony allowable under Harrison?” One, as it relates to the larger issue of, is former testimony out or in line of Harrison? If Harrison is applied as defendant wants to … would be no holding. Fulks… original trial reversed based on discovery violation committed by the state. In 2009 opinion, MSSC said … due process violation. That is important, in original Fulks holding. But when it came back to MSSC on appeal … it didn’t make defendant’s former testimony inadmissible in the second trial.

No case that applies the Harrison rule unless there is a total abuse of police or by the police of the constitution, especially 5th amendment rising to coercion. Not in this case.

Secondly, defendant spend some time on whether the defendant’s prior testimony is admissible as an admission. State chiefly addresses in its original objection to defense motion. State is not alleging that Parvin confessed on the stand. However, in this case, an admission does not require or equal a confession. In fact, as in motion, the fact that a statement while made is totally self-serving on defendant’s part … does not take it out of the realm of an admission. Reasonable to believe that when he testified it was self-serving in nature.

Clearly, self-serving statement can be an admission. The state feels the testimony was … one reason, MSSC noted that statement at issue was only extant version of defendant’s case. Important here … Parvin gave brief statement to police… only details of version. Always admissible as an admission. Anything he says from stand, … goes to relevance or proof of guilt in this case. Both statement is admissible … and that it is an admission under MS law.

As to defendant’s point that Paragraph 35 or MSSC opinion about Parvin case renders his testimony inadmissible, state believes it deals with Weathersby … most glaring problem defendant had … stte argues that graph relating to Weathersby would bar state using first testimony in its case. 1:40

ROBERTSON – No quarrel with Fulks case. Two critical distinctions: One, nothing in Fulks case shows that prior testimony was in any way induced by misconduct by state or police. Here, we have the opposite, wehre defendant’s testimony was directly induced by the improper presentation by Dr. Hayne and Graham. Second, Fulks’ statements in prior testimony were an admission … because he admitted to being an accomplice. Here, I submit that … MSSC opinion … straight to the point: they establish proposition that without mistress’ testimony, Dr. Parvin’s testimony would entitle him to acquittal or at least it was not an admission. Was that part of the opinion too brief? I think that should be applauded.

Fulks is fine. We also remind the court that we didn’t hear any discussion about the STringer case … nothing has watered that case down. That case is where prior testimony did not amount to an admission or statement against interest. It was held reversible error to allow its admission.

Finally, Harrison is not limited to police misconduct. It’s not even limited to constitutional violations. It’s a principle … if testimony by the state, which should not have been presented – improper – and as a result, the defendant must waive his privilege and testimony, that prior testimony cannot be presented again. Harrison is not limited to 5th amendment and police. State’s misconduct in this case, goes back to Daubert about what can and cannot be done in a fair trial. One deals with constitution and the other does not. But USSC started in motion the process about misconduct. Led to reversal in this case.

It’s worth noting that in Fulks case… I just noticed this … the general rule states… fact that defendant does not take stand at second trial does not preclude prior testimony, “if it would otherwise be admissible.” That clause is critical … Parvin’s statement is not an admission… would not otherwise be admissible.

GAULT – Very briefly?

JUDGE – Must accept as true that the only reason Parvin testified was because his decision was because of the improper testimony of two experts. Court was not privy to his decision to testify. (Robertson – transcript reflects … Parvin’s testimony was directly in response to what Hayne and Graham had to say. If look at it… primary substance was to address those two witnesses.)

To Gault – will allow you to make point.

GAULT – Note that in trial transcript, defendant stated on stand, that he originally told investigators that shot was fired because … prior to any autopsy. STate that while I agree that sometimes Sup Crt is brief, I make that point to say Graph 35 doesn’t say or imply that former testimony is inadmissible. Harrison cases … and cites… do not deal with Daubert issues or other erroneous issues. Deal with response of abuse of constitution of 5th amendment by the police. Say that … a review of admissions would reveal that Parvin’s testimony was an admission… and against his interests as they related to time of homicide.

JUDGE – If that’s the veiw of the Supreme Court … then, I … absent mistress’ testimony, he would be entitled to a directed verdict?

GAULT – In Graph 35 … mistress said he told her Joyce committed suicide. Later he told her it was an accident. They say he’s not entitled to acquittal under Weathersby. MSSC didn’t have to look anywhere else … because testimony of Ms. Hamblin was glaring example of taking this case outside … don’t think that paragraph addresses anything except being outside of Weathersby. Don’t think … doesn’t imply that testimony was not an admission.

JUDGE – Robertson? (Robertson – think I said it all.)

JUDGE – (Referring to Parvin’s previous testimony …) defense address issue of manslaughter.

ROBERTSON – (1:56) This issue has several dimensions important and distinct. First, as court knows preliminary. Case went to trial June 2011… of deliberate design murder. Defendant says it was accident. Two grounds submitted. Issues looked at those. Nobody requested a manslaughter instruction. If in law the state is entitled now … to entertain request for manslaughter instruction … under second indictment… If state is entitled to that, now it was entitled to one at first trial. Defendant was in jeopardy of it at first trial. Double jeopardy clause shuts down second prosecution for manslaughter and lesser-offense instruction. Guides all of it.

What we have here, though, is as a lesser point … deals with whether defense is entitled to a manslaughter instruction. (Asks Gault if intends to seek it?) (Gault – state has informed Waide they would be entitled to one at trial.)

So, we’d like … give that statement … issue is appropriate to present.

GAULT – In light of arguments, as to double jeopardy … evidence will determine what trial court can submit.

JUDGE – Issue has been raised by defense. We’re here, and parties have addressed this. Robertson, what do you say to ordinarily whether defendant is entitled to manslaughter instruction if course turns on evidence to present it? Understand defense position … it would be double jeopardy at this point? (Robertson, yes.)

ROBERTSON – In framework … cites Code Section … about lesser included offense instruction and deals with manslaughter. Attention to last clause … state geral premise that manslaguther instruciton can be lesser-included … limited … giving any instruciton would be justified by the proof and consistent with the wording of the manslaughter statute. That gets us back to what happened at first trial, looking at two manslaughter statutes and whether or not, at first trial, there was any evidence consistent with any manslaughter statutes. Refer to section 97-3-35… called heat of passion statute… also using dangerous weapon without authority of law. But doesn’t say anything about an accident.

Other manslaugther statute…. culpable negligence. These are the relevant statutes that tie back into last sentence of 99-19-5. Point is: If look at evidence in first trial … given general rule that no instruction is given that isn’t warranted by some evidence. No evidence of heat of passion. No evidence of anything other than an accident. No evidence of a culpable negligence, rising to manslaughter. No evidence in the case from first trial to satisfy any of those criteria. Nobody asked for this instruction at the first trial.

Given the facts … right of state to have such an instruction … that’s where realize that the state… unless change their theory of the case entirely, the state isn’t entitled to a msnalguther instruction.

Couple of general premises … dealing with how the court looks at the proposition if either side is entitled to a lesser included offense. One way … Sanders versus STate … Hawkins decision: It must be impossible to commit the greater offense without committing the lesser offense at the same time. In other words, impossible to commit deliberate design murder without committing one of these lesser manslaughter offenses. Unless state can show … deliberate design murder included the others, that’s the end of it. Stated in the Sanders case, reaffirmed in others.

Principal example that’s used illustrates that premises … indrug cases. If an indictment charges possession with intent to distribute or to sell, it is a lesser offense for a conviction of possession only. Necessarily involve proof of possession. Entirely proper. Lesser instruction can be given. Can’t prove the intent …without proving possesion.

But here, you cann’t take the deliberate design murder charge and fit it into a situation where proving … state shows one of these forms of manslaughter. BAsic point has been put in different ways by the Supreme Court. If a rational jury could have found Parvin guilty of one of these manslaughter forms … then the state would be entitled to that lesser offense instruction. But, I believe, court will remember… there is no such evidentiary basis for such an instruction. Therefore rational jury could NOT have found at first trial that Parvin was guilty of other of these forms of manslaughter. (Cites other such decisions by MSSC)

You can’t say that based on this evidence. We suggest that with respect to double-jeopardy would preclude state from putting this defendant on trial on the issue of one of these forms of manslaughter. If it was entitled to that at first trial, then defendant was in jeopardy at first trial. Due process point … if state is going to change its theory of how this happened, will be serious due process and estoppel issues we’d like to raise. Don’t know how state plans to proceed. If changing their theory from first trial, we have those issues.

GAULT – (2:13) PRELIMINARily state will assert that it doesn’t plan to change the theory of this case. Intend to try as a deliberate design murder case.

Three issues by state: double jeopardy, manslaughter as leser included, and evidentiary basis for lesser included instruction.

Double jeopardy: State concedes that defendant cannot be convicted of murder and manslaughter as a result of issues before the court. Obvious violation. However, whether instruction is asked for or not, in no way evokes jeopardy. BAsic law is that jury can convict of a lesser offense … not included or lesser included. Defendant on notice that he is at jeopardy of a lesser offense. State seeks no notice about double jeopardy.

Now as to lesser included or whether manslaughter is one … charge of culpable negligent manslaughter, I would argue. In as much as the state… if new evidence came out… for a heat of passion instruction, state would argue it’s appropriate. However, that’s not the substance of the state’s argument today. Today, focus on culpable neg manslaughter. (Cites COA decision … ) Just to say it can be appropriate. More importantly, discussion of why.

MSSC … 1992 jury instructed on deliberate design and depraved heat murder. MSSC ruled tht every murder of deliberate design is by definition done in an act imminently dangerous to others, with a depraved heart. Reckless disregard for human life. This is important … depraved heart and culpable neg are different by degree of malice. Culp neg must show utter indifference to human life. MSSC says that common sense shows that deliberate design shows reckless disregard … at same time, involves utter indifference like in culp neg cases.

More generally … State v. Shaw 2004… heat of passion instruction, but discussed manslaughter as instruction generally. Murder indictment includes all lower grades of homicide. Important to note … court noted that manslaughter proof is inconsistent is of no consequence.

But, I will cite COA statement… 2006, Gilbert v. state … Lee County … deliberate design murder … defendant convicted as charged and manslaugther included. Case went to jury on state’s theory of murder and with manslaughter by culpable negligence.

Law from one trial to the next for defendant … does not change. Can be convicted on any lesser … at subsequent trial. Clearly, culp neg manslaughter is a lesser included offense of murder. That said, defense raises issue of evidentiary basis for such an instruction. State believes trial court’s decision after evidence. But I do believe in this case … I don’t know what instruction state will submit … but based on defendant’s own statements … if courts were to take his statements and testimony as true … he hasn’t stated that he intentionally killed his wife. But he would be subjected to consideration of culp neg manslaughter. He said he took a loaded shotgun… said he was rushing … to kill beavers or whatever. Running down the hall right towards his wife. He knew where she was sitting. His statement alone … don’t imply state believes anything different from its theory of the case.

I certainly think that if that continues to be the truth in this case … would subject defendant to consideration of guilt of that crime. Of course, we don’t know what will come out at trial … that’s state’s argument.

Finally, want to be clear – state does not intend to waiver from deliberate design murder.

ROBERTSON – (2:27) Last point weaves its way back to MSSC opinion … about testimony. Suggest again that law of case that defendant’s version of the events entitled him, under Weathersby, to directed verdict of acquittal had it not been for mistress’ testimony. Follows, that question that Parvin was guilty of culp neg manslaughter is decided the same way. I think there is a related point, that’s important – listening to my friend, articulately … why wht he said would amount to culp neg. Reminds me of being in court … what is really a simple negligence situation … because of counsel, it gets into gross negligence.

This situation.. the facts as described … assuming could make case of negligence, that is not different as an accident, for which he would be acquitted without paramour’s testimony. As to general proposition, that … discussion is at 30,000 foot level. There are cases you ask if instructions fit as to lesser offenses… many cases where it does fit. But many cases, you have proof … for legitimate lesser offense. You just don’t have it here. Look at the cases cited by counsel opposition – none fits this situation, which is that if you look at evidence from first trial … you don’t have any evidence to support any different kinds of manslaughter.

Given that, the state’s request for lesser offense instruction would fail. If state is going to change the facts for Sanders case … or by Mills … they are changing their theory of the case. He says he isn’t changing principal of indictment … but doesn’t say about lesser included offense. But must satisfy … impossible to commit greater offense without committing lesser offense. Can’t find a manslaughter offense that fits, in this case.

Two ways to say same thing … given these, no lesser included should be given.

If state is entitled to lesser included, were equally entitled to one at the first …. if that’s so, then defendant was in jeopardy at first trial. Double jeopardy should shut that down.

JUDGE – What do you say that defense didn’t ask for a lesser included instruction at first trial, court or state?

ROBERTSON – State had that election. State elected not to do that.

JUDGE – Also, defense had that, didn’t they? Defense can back up and say prove it. Defense not required to do anything. Defense didn’t ask for it at the time … had not reason to believe state serious about proceeding with it. If so, they lost their opportunity.

Going to take them under advisement and other matters in defendant’s motion.

WAIDE – Asks for short break. 5 minutes. (Judge – let’s take 10 minute break.)

JUDGE – Believe that some of the other matters we might resolve. (Waide, I’d like to get it in the record.)

• • •

2:51 – Judge back

JUDGE – What about these other motions? Prohibit testimony.

GAULT – The state will not call Brown but will call Dr. Hayne consistent … opinion that he is allowed to testify about manner and cause of death and injuries of the victim. The state will not seek to introduce his distance or angle projections.

JUDGE – Hayne performed the autopsy? Will be called for only those things? No angles, distance? (Gault – Yes)

GAULT – We will ask him about autopsy report and will stay awy from those other issues.

WAIDE – Cause and manner of death? Injuries?

GAULT – Homicide.

WAIDE – Homicide, that indicates murder.

GAULT – Don’t think that means that.

JUDGE – Certainly his testimony will be limited to autopsy, manner and cause of death, and injuries.

(To prohibit testimony from state witnesses … Waide said would like to speak bout that.)

WAIDE – This appeal centered … no objections at trial. But clearly contrary to MS rules of evidence. Specifically, Mr. Chancellor is a crime scene …. testified about his worlds of information about analysis. He testified … contrary to Rule 701 … he cannot be a back-door method of producing expert evidence without calling an expert. It’s clear what he did. He talked about crime scene … leading jury to think he was some kind of expert. No expert report from him. He reached the conclusion that Parvin’s story about a fall wasn’t consistent with information at the scene. At no place was he tendered as an expert.

At least three cases wehre someone gets up to offer information as an expert when he wasn’t. Cases were reversed. MSSC says that if person’s going to be a lay expert, he has to be tendered as an expert. What are his qualifications?

JUDGE – What is you told me you fell outside courtroom and hit your knee? I go out there and say I don’t see any scuff marks or whatever, showing you fell. That’s lay opinion. Why do you have to be an expert to testify …

WAIDE – It’s one thing … but he went to the scene … he said … “I found the scene to be inconsistent … if it happened as it was reported.” He’s saying it wasn’t a trip and fall. MSSC says it’s no way to get around expert rule. (Judge – what was his testimony … that he said … about Parvin and his findings?) Yes sir … he said he found it inconsistent … if it happened the way it was reported…. that is expert testimony. He isn’t qualified. If he says he’s a crime scene expert, he must have some expertise. Parvin never said he hit the floor or made contact with the wall. Lay person could testify about that. But these cases were reversed by DA using expert testimony by a lay person.

He even went on … about angle… appeared to be going in at a downward angle, not what he expected to see. He contradicted Hayne. No counsel objection to this. That’s why we didn’t appeal to that. (Waide was not Parvin’s trial defense attorney.)

Other issues are going to be very short, your honor.

Next one – a matter of record. Make sure we have an understanding. Ground 3 of motion – identical to Ground 3 in brief. To prohibit state to offer evidence about Parvin’s statement .. or toward DA or his daughter or any other person. Bar letters to DA, to court or to witnesses, or altercations with other witnesses or jail employees. Objections to be made in writing or conceded. Says state will not offer this proof.

GAULT – Said that state does not intend to introduced prior statements from DA or myself, bullet, previous altercations, or letters to various individuals, specifically to myself, the court, his daughter, I believe that’s all. Also noted, unless defense or defendant opens the door.

WAIDE – My concern … is for what he said on the witness stand. I don’t see any purpose.

JUDGE – Unless he opens the door during direct examination, to testifying about them himself. I doubt that once he’s instructed …

GAULT – State’s not implying that it expects door to be opened. Just making the statement. (Judge – I don’t think would be open by defense counsel. I could anticipate Dr. Parvin opening the door.)

WAIDE – If just by him, I don’t see anything else. (Judge – I don’t either. Stipulation granted. Unless he testifies contrary to counsel’s advice, so be it.)

Paragraph 4 – Prohibit testimony … from mistress having an affair for 10 years. I don’t see how that’s known, no probative value. (Judge – I don’t recall the 10 years. As to your motion, denied.)

Amy Henley, her testimony – she is a daughter. She was strictly a sympathy witness, went on about how close she was to her mom, was very obvious for sympathy. Substantive testimony that as a child, she thought he dad was meticulously careful when they hunted… implied he was so careful that this wasn’t an accident. I don’t see what probative value has about how careful he was 20 years ago. Think real purpose was to elicit sympathy.

GAULT – State’s theory is still deliberate design murder. Having said that, the day of this death, defendant asserted the accident defense, which made this evidence relevant. At trial, Amy’s testimony depicted circumstances around this homicide and relationship with his late wife. State feels her testimony is admissible … as a general relevance about his assertion as an accident. State objections to the motion.

JUDGE – Seems to me that client claims accident … his habits concerning gun safety would be relevant, it seems to me. As for sympathy, court standard instruction, jury isn’t to consider sympathy for either side. Defense motion – denied.

WAIDE – We filed a motion to exclude Harthcock supplemental report on grounds of untimeliness. However, would be better to address per Daubert motion… (Judge- next Wednesday? To state, do you have all discovery that you’re entitled to? Gault – yes. Judge – In our last call, didn’t have reports for your experts. Any issues with that?)

WAIDE – Man’s life on the line … Rule 404 requires experts reports at least 60 days before trial. I’d like to see about it… he repudiates some of Hayne, supports other. Doesn’t comply with the rule. If don’t comply, you can’t call the witness or provide supplementals. Would like to address next Wednesday. We don’t think he is qualified.

GAULT – I understand substantive issues. But cites rule… 4.01 – apply only in civil procedures. That doesn’t take away a timeliness and notice requirement on behalf of the state. But other issues … but idea … 4.01 state clearly … understand it’s procedural.)

WAIDE – Apologize, overlooked Rule 4.01. I don’t see any distinction to give notice.

JUDGE – Notice must be far enough for other side to deal with it. We’ll take that up next week.

(Asks to see all counsel in chambers.) 3:21 p.m.

• • •

3:35 p.m. – attorneys back in courtroom. hearing ends.