83 14 (A BRIEF RECESS WAS HAD AFTER WHICH 15 THE FOLLOWING PROCEEDINGS WERE HAD IN 16 CHAMBERS OUTSIDE THE HEARING OF THE JURY:) 17 MR. CORGAN: Your Honor, I’d asked for this 18 in chambers discussion. I don’t know when it’s going to 19 happen, but I anticipate that at some point this Dr. 20 Reynolds, who’s a psychologist, is going to testify, and 21 we have concerns that -- about this ultimate opinions in 22 the case. That they may, in fact, not be admissible and 23 that we would like an in camera determination of that 24 before any testimony as to what he has done or expected to 25 testify in this case as presented to the jury. DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
84 1 THE COURT: Is this the next witness? 2 MR. CARLSON: No, he won’t testify today. 3 MR. BUCHANAN: I guess if we could have 4 some indication other than I have some concerns. I mean, 5 I don’t know what -- 6 THE COURT: What’s his topic? 7 MR. CORGAN: Well, Mr. Carlson, as I 8 recall, said in his opening statement that the doctor 9 would testify that -- something to the effect that Mr. 10 Allen does not have the personality type to commit this 11 crime. We don’t think that is a proper opinion for the 12 jury to consider. I don’t believe it’s proper expert 13 testimony in that regard. 14 MR. CARLSON: Why not? 15 MR. CORGAN: Why not? 16 MR. CARLSON: Yeah. What do you base that 17 on? 18 MR. CORGAN: Well, if nothing else, I base 19 it on the case of Reynolds v. State, and that case is 717 20 P2d 608, and it’s headnote number two which says: 21 “Exclusion of opinion testimony, based on 22 results of Minnesota Multiphasic 23 Personality Inventory test, that defendant 24 was not a sort of person who could do 25 something wrong and then hide it was not DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
85 1 abuse of discretion, though trial court had 2 previously allowed defendant’s neighbor to 3 testify concerning his character.” 4 We do not know exactly what it is Dr. 5 Reynolds will be testifying to, but we think that’s the 6 general nature, and as the court in Reynolds has 7 recognized, that is not something that goes to -- that 8 should go to the jury. 9 MR. CARLSON: Well, I think we’re talking 10 apples and oranges, but you certainly have the right, once 11 we present him, to make your objections. The court can 12 rule upon them. 13 THE COURT: Do you have an extra copy? 14 MR. CORGAN: I’ll give you mine. 15 THE COURT: Well, maybe that’s something we 16 can address maybe tomorrow or something like that. 17 MR. CORGAN: Well, Judge, it’s just a 18 situation, you know, that -- 19 THE COURT: Is he due to be here Thursday 20 or something. 21 MR. CARLSON: We may bring him Thursday, we 22 may bring him Friday. We’re trying to schedule people and 23 have ran into a problem with his schedule. 24 THE COURT: Do you have something specific 25 -- I haven’t had a chance to read it, but something -- DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
83 1 on those items necessarily? 2 A They’re in the area. 3 Q My point is, sir, wouldn’t you agree with me that in 4 forming a vast number of conclusions you relied on part of 5 the information and not all the information? 6 MR. CARLSON: Object, improper recroSS, 7 Your Honor. 8 THE COURT; Sustained. 9 MR. CORGAN: That’s all. 10 MR. CARLSON: That’s all we have. 11 THE COURT; Thank you, sir. Step down. 12 Let’s take a recess, ladies and gentlemen, and don’t 13 discuss the case. 14 (A BRIEF RECESS WAS HAD. AFTER WHICH 15 THE FOLLOWING PROCEEDINGS WERE HAD IN 16 CHAMBERS OUTSIDE THE HEARING OF THE JURY:) 17 MR. CORGAN: Your Honor, I’d asked for this 18 in chambers discussion. I don’t know when it’s going to 19 happen, but I anticipate that at some point this Dr. 20 Reynolds, who’s a psychologist, is going to testify, and 21 we have concerns that -- about this ultimate opinions in 22 the case. That they may, in fact, not be admissible and 23 that we would like an in camera determination of that 24 before any testimony as to what he has done or expected to 25 testify in this case as presented to the jury. DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
87 1 THE COURT: No. 2 MR. CORGAN: Okay. So I would ask that be 3 an in camera determination before we get into anything of 4 that type. 5 THE COURT: Who do we have next? 6 MR. CARLSON: Barry Rouw. There’s one 7 thing we need to cover with the court. We have a chart 8 and we need to get that. 9 MR. BUCHANAN: Do you want me to bring 10 that? 11 MR. CARLSON: Yes. We have a chart that we 12 plotted these police calls on. The court needs to look at 13 that and counsel does, too. I’m not going to introduce 14 it, but use it for demonstrative purposes. He can relate 15 the calls to the locality and that what we did was charted 16 a plot to show activity in that particular area. 17 MR. CORGAN: And I think that goes directly 18 to our objection we made about the stack of -- 19 MR. CARLSON: What we did is we plotted the 20 particular area and we broke them into categories that 21 were furnished to us pursuant to the subpoena, and we used 22 designated colors. For instance, if you take 28 and we go 23 down -- that’s call number 28 and then down here, it’s 24 call number 28 and it would be signal 8. So you come over 25 under the signal code, number 8 is larceny. And it shows DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
88 1 -- we plotted the area and plotted them here and down 2 here, and obviously we’ve not done but a small area 3 adjacent to this particular area. 4 One of the theories of the state’s case is 5 that it’s absurd for us to contend that there could have 6 been anyone around that home. I think that the police 7 call and charting illustrates our point. There’s 8 activity, for instance, right down here. There’s a whole 9 number of sex crimes. By right down here I’m looking on 10 the chart at 27, 28, 29, 40, 41, 67 and 68, I believe. 11 MR. CORGAN: Well, when were they and what 12 were they and were they more than one place? 13 MR. CARLSON: Well, all we know is what was 14 furnished to us by the police. So we know there were 15 certainly calls made. 16 MR. CORGAN: Do we know if there were 17 arrests made, whether they were founded or unfounded? 18 Those are the concerns that the state has, Judge. 19 MR. CARLSON: Well, there’s no way for us 20 to pull all that. I mean, we have police reports and we 21 know calls were made there and we can show that there’s 22 been activity in that particular area. I don’t know it 23 makes a lot of difference. Somebody’s reported and 24 officers have reported that there were calls at that 25 particular area. Just because they didn’t arrest somebody DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
89 1 doesn’t mean that they caught somebody or didn’t catch 2 somebody. 3 MR. CORGAN: Well, it may be unfounded. 4 That’.s one of their -- 5 MR. CARLSON: Well, certainly no indication 6 of that on the police call. I would assume if it’s 7 unfounded they wouldn’t -- 8 MR. CORGAN: Well, they don’t wipe that off 9 their dispatch log if it’s unfounded. It’s still a 10 dispatch call. 11 MR. BUCHANAN: Does that mean somebody did 12 it and they did it for pure whelm or prank or are we going 13 to assume every one of these calls was done simply as a 14 prank and not -- was totally unfounded? 15 MR. CARLSON: I mean, that probably goes to 16 the weight of it, but I can’t believe that all these calls 17 were unfounded. 18 THE COURT: Are we going to get to anybody 19 else besides him today? 20 MR. CARLSON: We have one other witness 21 here. 22 THE COURT: Who’s that? 23 MR. CARLSON: Jerry Horton. He’s the fella 24 who did the drive and screen door. 25 MR. BUCHANAN; He’d be pretty short. DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
90 1 THE COURT: Well, are you going to do -- 2 are you wanting to offer or just use this or are we going 3 to have the stack of reports? I mean, are you going to 4 offer either one into evidence I guess is my question? 5 MR. CARLSON: Well, we’d offer the police 6 calls. We don’t intend to offer this into evidence. We 7 do intend to use it as demonstrative. I think we have to 8 use this as demonstrative from the standpoint we would 9 plan to use this in closing arguments as demonstrative,. 10 but don’t plan to make it an exhibit and offer it into 11 evidence. 12 THE COURT: You’re saying you only plan to 13 offer the police calls which I guess is dispatch 14 notations? 15 MR. CARLSON: It’s the dispatch calls, 16 right, between the period of time of April 11 -- 17 THE COURT: Does it get into the 18 allegations at all? 19 MR. CARLSON: No. 20 THE COURT: Or just say unit X was 21 dispatched to position Y? 22 MR. CARLSON: Basically it gives that they 23 were dispatched for that particular reason. 24 MR. BUCHANAN: It’s the time and the date 25 and case number and location and then there is a code DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
91
1 number just like there is on here. 2 THE COURT: Well, assuming -- I guess it’s 3 your strategy, but seems like it’s almost easier to 4 introduce, this, but that’s really -- 5 MR. CARLSON: Well, we could introduce it 6 as a summary. 7 THE COURT: I’m saying I don’t want to have 8 to keep that thing. You don’t have a photograph that’s 9 shrunk down, do you? 10 MR. CARLSON: We could make one. We could 11 make one. 12 MR. BUCHANAN: We can make a photograph to 13 substitute for the record. 14 THE COURT: I think it’s probably 15 admissible unless you can think of a good reason that I 16 shouldn’t. So let’s go from that premise. 17 MR. CORGAN: Well -- 18 THE COURT: I mean, I think you can 19 certainly argue it’s of questionable value, but that 20 doesn’t necessarily mean it’s not admissible. 21 MR. CORGAN: How is it relevant, you know? 22 THE COURT: They’re saying this is proof of 23 a crime infested area. You know, if you want to take that 24 for what they’re arguing, you know, I guess that’s just 25 their argument. DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
92 1 MR. CARLSON: Argument basically that, you 2 know, there’s activity in that particular area; it’s not a 3 sterile environment. 4 THE COURT: It can be easily -- well, 5 that’s what their arguing, for whatever it’s worth. 6 MR. CORGAN: Well, you’re not saying that 7 if they chose to put this on we can’t then pull those 8 reports and, you know, get into what we think we need to 9 get into? 10 THE COURT: Right. 11 MR. CORGAN: Well, 37 through 41, 37, 38, 12 39, 40 and 41 are all the same address and I bet you if we 13 pulled the call on that that is a threatening phone call. 14 MR. BUCHANAN: Code number 21. 15 MR. CARLSON: It would be a rape. 16 MR. CORGAN: So we had the same person 17 raped five times at that house or we had five different 18 people raped at that house. 66, 67 and 68, that’s the 19 same house. 20 THE COURT: That may be -- I just hope we 21 wouldn’t have to go through all 64 dots or whatever. 22 MR. CORGAN: And what’s the signal code on 23 that? 24 MR. CARLSON: It would be 63. 25 MR. CORGAN: That’s a sexual offense, not DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
93 1 rape. 2 MR. CARLSON: I didn’t plan to go through 3 all of them. 4 THE COURT: I mean, I think It’s of 5 questionable value, but it’s their case. Let me just ask, 6 for Thursday and Friday, are we going to have some other 7 issues like the doctor and video? We could spend some 8 time on tomorrow previewing those so we don’t have to have 9 the jury waiting around all day. 10 MR. CARLSON: Shouldn’t be Thursday. 11 Really I don’t think there should be Friday. I don’t 12 think so. This is -- the video has been the big slow 13 down. 14 THE COURT: Well, he’s mentioned the doctor 15 thing, Dr. Reynolds. 16 MR. CORGAN: Well, and the issue of the 17 character witnesses. They’ve listed 10 or 15 character 18 witnesses and we’re going to object to parading all those 19 folks through. 20 THE COURT: Well, are you all available 21 sometime tomorrow if we could do some policing up? 22 MR. CARLSON: Yeah. 23 THE COURT: Just to cover even some of 24 these even if it’s just for an hour or less? 25 MR. CARLSON: Sure. DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
94 1 THE COURT: All right. Well, how about 2 tomorrow afternoon basically unless you all -- 3 MR. CARLSON: Afternoon probably would be 4 better. 5 THE COURT: Three o’clock? 6 MR. CARLSON: That would be fine. If I run 7 into a problem I may call and maybe we could move it. 8 THE COURT: We could at least discuss those 9 two issues you’ve raised, the character witnesses and Dr. 10 Reynolds, and anything else that you think we need to 11 discuss tomorrow? 12 MR. CORGAN: Not that I know of right now. 13 THE COURT; That you anticipate. 14 (THE FOLLOWING PROCEEDINGS WERE HAD WITHIN 15 THE HEARING OF THE JURY: 16 THE COURT: All right. Show the jury’s 17 back all present. Call your next witness. 18 MR. CARLSON: I’d call Barry Rouw. 19 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
LH
2000