17 (THE EVENING RECESS WAS HAD. AFTER WHICH 18 THE FOLLOWING PROCEEDINGS WERE HAD ON 19 7-30-91, IN CHAMBERS OUTSIDE THE HEARING 20 OF THE JURY:) 21 THE COURT: Show that we’re in chambers 22 prior to -- well, Mr. Carlson had some matters to take up 23 in chambers. 24 MR. CARLSON: Your Honor, with regard to 25 the crime scene video, it’s relevant to one of the DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 260 1 theories of the defense in this particular case, and for a 2 number of reasons. 3 One of which, the crime scene video will 4 show the number of people at the scene in the crime scene 5 shortly after this particular crime took place, and it 6 also shows that the police realize that -- realize that 7 there are too many people in the crime scene. It shows 8 the assumptions that are made by the police right quick. 9 They are honing in on Steve Allen. That seems pretty 10 obvious. It shows locations of certain times of evidence. 11 It shows the time and extent of suspicion as far as Steve 12 is concerned, and also shows an additional item, the chair 13 in question, which has been moved and the people at the 14 scene surmise that and this is before Franchini and Otte 15 ever arrive. 16 The crime scene, in addition -- the crime 17 scene video additionally gives an overall picture of 18 various locations and/or indications of things in the 19 house. We think it’s extremely relevant for those 20 reasons. Especially with regard to the crime scene, 21 especially with regard to the rapidness with which the 22 investigation focused on Steve Allen. 23 THE COURT: State. 24 MR. CORGAN: Your Honor, we don’t feel that 25 the video is admissible. We don’t think it gives a DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 261 1 representative picture of the scene, you know, shots are 2 here and here and everywhere. It’s obvious that the 3 camera was never turned off and there’s shots of the 4 floor, there’s shots as the person is walking along, the 5 color is not good. So, you can’t really make any sort of 6 determination in that regard from the video. 7 We think the audio contains inadmissible 8 hearsay. It’s something that should not be allowed, the 9 conversations themselves. It’s an attempt at what I will 10 call improper impeachment. I think both -- Mr. Mason did 11 testify that, as I recall, that he felt like there were 12 too many people there at the scene. 13 We just feel like admitting the video gives 14 an improper view of the scene. It takes one small segment 15 and carves that out, and I know if the state were to offer 16 that I don’t think it would be admissible, and I don’t see 17 how the same type thing could now be admissible in the 18 defense case. 19 I think if Your Honor is to allow it at all 20 it should be allowed without the audio. We don’t think 21 it’s allowable period. 22 MR. CARLSON: Your Honor, with regard to 23 the crime scene video, obviously I think the court 24 understands our position and why its terribly relevant to 25 our theory of the defense. We have, from the word go, DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 262 1 said that we felt like that if the crime scene had been 2 handled a little more carefully that we feel like there 3 would be some evidence that could have excluded Steve in 4 this particular case. 5 Addressing the issue of the statements on 6 the tape, there are an abundance of statements on that 7 tape that are admissions against the state. Admissions 8 against interest. Admissions that show how quickly and 9 rapidly they honed in on Steve, which are, of course, 10 exceptions to any hearsay rule. 11 THE COURT: Doesn’t the tape give the time 12 on it? 13 MR. CARLSON: The tape does not give the 14 time on it. We did not do a time on this one. 15 MR. BUCHANAN: Only way to reference the 16 time is when Officer Gardella is getting ready to go get 17 the consent signed by Steve Allen, which he testified was 18 -- he actually did that around midnight. So we know it’s 19 between ten o’clock and midnight. 20 MR. CARLSON: And Officer Bevard testified, 21 I believe, that he took the video camera out there, I 22 think his testimony was, about eleven. So about an hour 23 after. So we know it’s between ten and twelve. So it’s 24 very early on with regard to this particular 25 investigation. DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 263 1 But, you know, I think it’s terrible 2 relevant to the theory of the defense. And there are, you 3 know, there are some things that -- there’s some bad 4 things from the standpoint that -- certainly from our 5 standpoint or certainly could be construed that way. 6 So, you know, there may well be ups and 7 downs both ways, but we think it certainly is admissible 8 especially since we have, from the word go, we have told 9 the jury and been up front with the jury that we were 10 going to explain why we think some things should have been 11 done differently at the crime scene and why the approach 12 should have been done differently at the particular crime 13 scene. And we’ll have testimony in that regard. It’s not 14 a situation that we decided to do lightly; it’s a 15 situation that we weighed long and hard before we decided 16 to even open that particular door. But we felt like the 17 evidence was there. We felt like that the crime scene 18 video is certainly one piece, but we also have certain 19 members of law enforcement who support that, and the crime 20 scene video is documentation under our theory of defense 21 that we’re not blowing smoke, that we are serious and -- 22 THE COURT: Okay. We’ll show the video as 23 admissible although questionable in quality, questionable 24 in evidentiary value. It’s for the jury to determine 25 arrangement in the house, furnishings, what appeared to be DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 264 1 about five minutes or so in length, and exclude the audio 2 at least at this time. It appears to contain speculations 3 of the officers taken out of five minute segment over a 4 period of hours on the crime scene. What their conjecture 5 is is not admissible. 6 MR. BUCHANAN: Could we enter the 7 transcript of that as an offer of proof as to what it 8 would show? 9 THE COURT: Sure. Certainly. 10 MR. CARLSON: With regard to -- 11 THE COURT: Let me also say, there’s a lot 12 of the oral part that you can’t -- there’s comments and 13 you can’t really tell that -- if the comments go with 14 where the camera is looking of if they’re extraneous 15 comments or if they’re necessarily tied to the video or if 16 the camera is pointing to the comments of if they’re, you 17 know, disjointed conversations or not and who it is as 18 well. 19 MR. CORGAN: Since Your Honor has denied -- 20 is not going to allow the audio, could we have the 21 witnesses that are going to testify as to the video be 22 instructed not to go into the audio portions? 23 MR. CARLSON: That’s what I was going to 24 bring up, because we have an expert here on crime scene 25 who has reviewed the video. He’s going to rely upon the DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 265 1 video, and he’s going to rely upon certain portions of 2 that video with regard to his opinion, which he’res entitled 3 to do. 4 It’s much like -- it’s like a liability 5 case where you present an experiment or we present a video 6 of a reenactment narrated by someone, and we submit it to 7 the other side and their expert is entitled to take the 8 stand and tell us what we -- what’s wrong with that 9 particular experiment, which we do all the time in regard 10 to product cases and anything we have expert witnesses 11 involved in. 12 So I think it’s proper that our expert can 13 comment upon the video. Now, the state took the video, 14 obviously, we didn’t; but we think it’s certainly proper 15 that the expert be allowed to comment on key portions of 16 that video that’s the basis of his opinion and part of his 17 opinion. 18 THE COURT: Well, if his opinion is based 19 on a -- on the five minute video it needs to be based on 20 the five minute video and not the officers -- their 21 opinions that they may offer on this or that subject. 22 MR. CARLSON: Well, his opinion would also 23 be based on, you know, what they’re stating. I mean, 24 that’s probably the best evidence of what their state of 25 mind was as they looked at the crime scene that early on. DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 266 1 It’s certainly in those officers state of mind that 2 they’re saying that this couldn’t be or that couldn’t be. 3 I mean, frankly we think the audio would be 4 admissible under that theory, state of mind theory. He’s 5 telling that this is a part of the investigation and it’s 6 their mind set as to exactly when -- what they’re doing 7 and what they’re saying in that regard. We think the 8 audio is highly admissible in that portion of the state of 9 mind of the investigating officers there at the scene. 10 The state of mind when they say, you know, there’s too 11 many people in the crime scene. That statement is on 12 there. 13 And in that regard I would ask the court to 14 reconsider. But certainly if the court, you know, feels 15 not inclined to do that then certainly the expert knows 16 and that tells him what the state of mind of the officers 17 are or is at the time that they are investigating this 18 particular matter. 19 THE COURT: Well, from the tape you 20 couldn’t ascribe any particular person to any oral 21 statement. 22 MR. BUCHANAN: We can clearly identify 23 Eddie Mason, Tom Holland, Herb Cline. There’s no 24 mistaking those voices Especially when Tom Holland says, 25 you know -- Herb Cline says, Chief, I’m going to go over DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 267 1 and look in the yard, and he says, hang outside, Herb. I 2 mean those are -- 3 THE COURT: Well, again, those are all 4 available witnesses to pursue those things, if necessary. 5 MR. BUCHANAN: And the other thing, Judge, 6 is like on page five there’s specific reference to this is 7 a set up. That goes to how -- the state of mind of how 8 this police officer proceeded with processing the crime 9 scene, how they proceeded with whether they were or 10 weren’t looking for other perpetrators. 11 Eddie Mason, on page 3, I think, is saying 12 -- talking about the weapon, yeah, it’s probably out there 13 in the front of that car. I mean Eddie Mason is saying 14 the weapon is probably out there in the front of that car. 15 He’s not worried about looking around outside for evidence 16 of another perpetrator. That goes to the state of mind of 17 the police officers as to what they were looking for, and 18 I think it’s contradictory to what he said the other day. 19 He said, we still consider we had somebody running around 20 out there. I think that goes contrary to his testimony. 21 That’s why it’s a statement against interest and not 22 hearsay. 23 THE COURT: Well, I stand on my ruling. 24 MR. BUCHANAN: But if your expert witness 25 had listened to that he can at least -- regardless of who DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 268 1 said it, there’s a number of instances in here where 2 somebody in the house, which we know was under police 3 control, is making statements or assumptions that Steve 4 Allen is a suspect, and wouldn’t he be allowed to rely at 5 least on those statements in part as part of his -- as 6 part of his expert opinion as to how this investigation 7 was handled? Certainly that doesn’t have to be admissible 8 for him to rely on it. 9 THE COURT: Well, they can rely on 10 everything that’s in the record just as Dr. Shuy did. 11 MR. CARLSON: Will that allow us to rely on 12 the audio from the standpoint of expressing his expert 13 opinion based upon having investigated homicides himself 14 and been in charge of them as to, you know, what the 15 officers -- basically from his review of the video tape as 16 an expert and what their comments are, the direction their 17 headed, the fact that they realized certain things at that 18 point. Certainly I would think -- because it’s 19 documented. It’s documented on the tape that that was 20 said and that happened. You have it documented. I mean, 21 he’s not surmising that that was said or wasn’t said, and 22 there’s nobody certainly laughing or joking there. I 23 mean, it’s -- they’re serious about the statements they’re 24 making in that regard. That’s pretty self-evident. But I 25 think certainly an expert can rely on that tape of a DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 269 1 documented conversation. That’s what we do with -- that’s 2 done all the time with statements of witnesses that may be 3 submitted to an expert. 4 THE COURT: Well, like I say, they can do 5 what Dr. Shuy did, whatever they want to rely on. 6 MR. CARLSON: Okay. If he wants to rely on 7 it then he can? 8 THE COURT: Without reading through it 9 verbatim or that sort of thing. 10 MR. CARLSON: Okay. All right. 11 THE COURT: Just like Dr. Shuy charted 12 things as to what he formed his opinion on. 13 MR. CARLSON: Okay. All right. 14 MR. BUCHANAN: Judge, if we could, I don’t 15 have my list of exhibit numbers in here, but if we can 16 mark the crime scene video transcript of the audio portion 17 and offer it as an offer of proof basically for the -- 18 that it would show the conclusion and assumptions of the 19 police officers at the time the video was taken as 20 reflected by the transcript and move its admission for 21 that purpose only. I’ll mark it when we get out there. 22 MR. CORGAN: Your Honor, I had brought up 23 three other matters; the issue of the log sheet, hearsay, 24 and character witnesses. We brought up the issue of the 25 -- we were given a stack yesterday of maybe four or five DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT 270 1 inches thick of various dispatch calls over I believe two 2 or three months. 3 THE COURT: Well, we’re not going to get 4 into any of those issues this morning, are we? 5 MR. CARLSON: Depending upon how long this 6 witness takes. If we get to them it will be later this 7 morning. 8 THE COURT: Well, let’s go ahead. I want 9 to go ahead and get started. Have the jury come in. 10 (THE FOLLOWING PROCEEDINGS WERE HAD WITHIN 11 THE HEARING OF THE JURY:) 12 MR. CARLSON: Your Honor, we’d call Blair 13 Gluba. 14 --------------------------------------------------------------------------------- 15 BLAIR GLUBA 16 having been first duly sworn to tell the truth, the whole 17 truth, and nothing but the truth, testified as follows: 18 DIRECT EXAMINATION 19 BY MR. CARLSON: 20 Q State your name for us, please, and spell your last 21 name. 22 A My name is Blair N. Gluba, and my name is spelled 23 G-L-U-B-A. 24 Q What’s your business, profession or occupation, Mr. 25 Gluba? DISTRICT COURT OF OKLAHOMA OFFICIAL TRANSCRIPT
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