order of dismissal in cal harris trial
DESCRIPTION
Order of Dismissal in Cal Harris trialTRANSCRIPT
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MR. BARKET: So what?
THE COURT: I'm sorry.
MR. BARKET: It happens over and over and over
again.
THE COURT: Mr. Barket, let's please proceed,
okay?
MR. BARKET: God.
MS. ALDEA: Your Honor, at the conclusion of the
People's case the defense is going to move for a trial
order of dismissal. We're moving for a trial order of
dismissal on the grounds that the People's case is not
legally sufficient to establish the elements of murder in
the second degree. And that's both elements of the
offenses charged, both that Cal killed Michele, and that
he did so intentionally. We think that the People have
failed to prove either of those elements.
First, the People failed to establish that Cal
actually killed Michele. Of course there's no direct
evidence of this. And while the People can rely on
circumstantial evidence and of course can also prove that
a murder occurred or that a homicide occurred without
having a body, the circumstantial evidence has to be
legally competent to prove this without requiring the jury
to make impermissible inferences that are drawn from the
equivocal evidence.
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The Court of Appeals has instructed in numerous
cases --
THE COURT: Sorry to interrupt you, but do you
think we should let the jurors go? Are you going to be a
while?
MS. ALDEA: I don't think it's going to be
particularly long, your Honor. So I'm anticipating that
my argument should be concluded probably in about 15,
20 minutes. I don't know how long the prosecution's will
be.
THE COURT: Well, it might make more sense to
let the jurors go for lunch and then we can take a shorter
lunch.
MS. ALDEA: Okay, that's fine.
MR. BARKET: Here's the problem with that,
Judge, is that now they think it's because I don't have
something that I was supposed to have now. That's what
they're going to say.
THE COURT: Well, I'll instruct them that there
are being motions made after the People have closed their
case. Do you want me to say something specific? I'm
happy to do that.
MR. BARKET: Yes, I think you should tell the
jury that the defense has no obligation to produce any
material to the prosecution until after some legal
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arguments are had at the conclusion of the People's case,
and that you are going to let them go for lunch, we will
do the legal arguments and they can come back in the
afternoon.
MR. MARTIN: I'm not sure that's what the
statute says, Judge.
MR. BARKET: Well, I don't care what the statute
says because given what the judge just did there needs to
be a cure for that.
THE COURT: Well, I'll say that. I don't
necessarily think there needs to be a cure for anything,
but it may solve that. We'll bring the jurors back.
Mr. Barket, please stop the stage whispers.
MR. BARKET: The what?
THE COURT: Stage whispers.
MR. BARKET: They're not stage, Judge. Do you
want to know what I was saying? I'll be happy to share it
with the Court. I was just talking to Ms. Aldea.
THE COURT: Happy to -- well, don't say it now.
(The jury entered the courtroom.)
THE COURT: You can all have a seat. What I'm
going to do is -- I know you haven't done much today, but
I'm going to have you break for lunch and come back at
one. Once the People have formally rested I have to hear
some motions. And also I'll tell you I kind of jumped the
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gun to ask the defense to produce any materials. They
don't have an obligation to do that until after I've heard
all the arguments if indeed then they even have to. So
just if you can ignore that I asked them to produce
anything. And it's no one's fault, I'm sorry that we
couldn't get everything done on Monday. And the People
rested and then as I say there's formal legal things that
have to be done. Hopefully we'll get those done by one
o'clock so we can then proceed.
So I will remind you of all your admonitions and
hopefully I'll see you back here at one. Thank you.
(The jury exited the courtroom.)
MR. BARKET: Thank you, Judge.
THE COURT: You're welcome. Sorry to interrupt
you.
MS. ALDEA: That's okay, no problem. So while
circumstantial evidence is competent to prove a case,
obviously what is required is that the circumstantial
evidence be competent to prove this without requiring the
jury to make impermissible inferences drawn from the
applicable evidence.
The Court of Appeals has cautioned this on
several occasions in several cases. The Courts
specifically said that close judicial supervision in jury
verdicts based solely upon circumstantial evidence is
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necessary to ensure that the jury does not make inferences
which are based not on the evidence presented but rather
on unsupported assumptions drawn from evidence equivocal
at best. And that's in People versus Kennedy in reviewing
legal sufficiency under the same standards that this Court
will apply in the trial order of dismissal.
Similarly, the Court of Appeals in People versus
Cleague has stated that the Court should be mindful that,
quote, the danger with the use of circumstantial evidence
is that of logical gaps. That is, subjective inferential
links based on probabilities of low grade or insufficient
degree, which if undetected, elevate coincidence and
therefore suspicion into permissible inference.
This Court's function as the gatekeeper in
determining this trial order of dismissal motion is to
ensure that the People's proof is actually based on
competent evidence and does not require the jury to make
those inferential leaps that the Court of Appeals has
prohibited.
So, in this case in applying that to the first
element of the crime of murder in the second degree, there
is in this case, first of all, no proof that Michele came
home after she went to Brian Earley's house on the evening
of September 11th. And this case is somewhat unique in
this Court's review because while of course the Court
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wouldn't be bound by any decision that is made in a prior
case even by the Appellate Division. This is a case where
on evidence that came out at the prior trial, which was
actually a lot stronger than the evidence that has been
presented in this case, there was at least -- well, there
was one judge in the Appellate Division who found that the
evidence was legally insufficient to sustain a conviction,
and there was also a judge in the Court of Appeals who
found the same.
But what I think is instructed in the Appellate
Division's majority decision from the prior trial is that
the Court sets forth why it believes that the
circumstantial case there was legally sufficient or met
that standard even though it met it by not a lot in that
first trial. And so I'm going to compare some of what was
elicited in that first trial and some of what the
Appellate Division relied on to the evidence that came out
here.
The first thing is that, as I said, in this
trial there was no proof that Michele even came home after
she left Brian Earley's house and there's certainly no
proof that she set foot into the Harris home at any point
on the night of September 11th. In the prior trial Earley
testified that Michele went home, and the Appellate
Division majority relied on that in its decision to
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establish that Michele was in fact there.
In this case that testimony did not come out.
In fact, Brian Earley in this trial was prohibited from
testifying that she came home because he recognized that
that was based solely on his suspicion or on his surmise,
it was not based on his observation or anything that he
knew, and so it was inadmissible. So that link, that
proof that the People relied on before to even establish
the fact that she was there, which was essential to their
circumstantial theory of opportunity, is missing in the
case that has been presented at this trial.
Additionally, although Michele's van was at the
bottom of the driveway, there have been numerous witnesses
that have testified before this Court, People's witnesses,
that have said that Michele's van was parked there on
other occasions at other times. So it was not uncommon
for Michele to leave her van and to go out elsewhere.
Nikki Burdick in fact testified that while she
didn't have Michele's van -- she didn't see Michele's van
parked at the bottom of Michele's driveway, Michele would
leave her van to go out drinking or to go out with other
people in parking lots, in the parking lot at Lefty's, and
they would go together.
And so the presence of Michele's van at the
bottom of the driveway cannot, without that impermissible
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inferential leap, establish that Michele actually went
home. Without that evidence, the People's proof of
opportunity is completely lacking in this case. So that
first element that the People would rely on in the
circumstantial case to prove that a crime actually
occurred is absent.
The second element is that there's no proof that
there was any crime at all that was committed in the
house. The People tried to paint the house as a crime
scene by relying on the minute quantity of blood that was
there. But the minute quantity of blood in that house is
inconsistent with a murder scene. And there is no
testimony at this trial that has established otherwise;
that has established that it would be consistent or that
it would be something that would be suggestive that there
was in fact a murder scene there.
This Court, like the jury, does not have to
abandon all common sense in the evaluation of the trial
order of dismissal. And so for the People's theory to be
accurate that there was a murder that occurred in that
house, it simply does not make sense, it defies logic and
common sense that there would be a total of less than an
eighth of a teaspoon of blood total at that scene.
Additionally, what the People's expert did
testify to is that it would be also, including the blood
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spatter that was found, would be equally consistent with a
cut hand. In the prior trial there was no testimony that
Michele had a cut hand. There was no evidence of that.
In fact, Dr. Lee even at this trial said that there would
be no proof of that, that there was no evidence that ever
happened.
In this trial for the first time there was
evidence that there was a cut hand. And in fact, the
Appellate Division specifically found in its decision that
it was most significant that there were -- let me actually
find it, sorry. The Appellate Division found in its
decision, I'll quote, particularly given the lack of any
plausible explanation for the victim's recently spattered
blood found in the home, a valid line of reasoning and
permissible inferences could lead a rational person to the
conclusion of guilty on the basis of the evidence at
trial.
Again, particularly given the lack of any
plausible explanation for the victim's blood. In this
trial, unlike in the prior one, we have a plausible
explanation for the victim's blood. We have the fact that
she cut her hand and she cut her hand in the driveway of
the family home close to where the blood was in fact
found, where she would enter the home through the garage
and through the foyer area.
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Moreover, there is no proof in this trial that
the blood was actually Michele's. In this regard there
was testimony that there was animal blood in the area that
the blood was found in the garage. There was testimony
that there was no species test that was done on most of
the blood for human blood. And there was testimony that
there was no testing done, although it could have been
available, to determine whether the DNA in fact came from
the blood or whether the DNA had been posited there by
some other means, which would include skin cells, mucus.
There were no amylase tests done on this blood to
ensure -- on the DNA or the blood for that matter,
contrary to the recommendation of Henry Lee of the
People's experts.
And so in this case the Appellate Division's
conclusion from the prior trial that there was evidence
that Michele's blood was actually there does not exist.
That evidence is simply missing from this trial. And to
the contrary, has come out that the fact that there was
blood that may or may not have been human blood, and the
fact that there was DNA that may or may not have come from
the blood again presents one of those logical gaps in the
evidence that the People simply have not filled through
their direct case in this trial and that the jury is
simply not allowed to make that kind of inferential leap.
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And so for that reason as well the People have failed to
prove that anything happened in the house.
Additionally, the Appellate Division's decision
on sufficiency found it, quote, most significant that,
quote, hundreds of recent stains had been caused by the
spattering of her blood. Referring to Michele's blood.
Again, not only is there no proof in this trial that it
was in fact Michele's blood -- and that evidence did come
out differently here than it had before. But moreover,
there was in this trial, thanks to this Court's prominent
ruling on this matter, no proof of the recency.
The Appellate Division's decision hinged on the
recency. It mentioned that numerous times in the majority
decision. The victim's recently spattered blood. The
hundreds of recent stains. In this trial the People could
not establish the age of the blood because there is no way
that that can be scientifically documented or determined.
And frankly, your Honor, when you read the
majority opinion, without the recency element the
Appellate Division would not have concluded that there was
a valid line of reasoning and permissible inferences as
opposed to impermissible ones that could lead a rational
person to the conclusion that in fact there had been a
crime that had been committed there. When that's coupled
with the cut hand that would be a plausible explanation
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for the blood, there is simply no proof of a crime scene.
Finally -- or actually not finally, but I guess
finally on the point of opportunity, it's established that
opportunity like motive can not fill the gap in proof.
Opportunity like motive is a form of evidence that is
weak, that is obviously circumstantial, and that is not
necessary and does not establish and cannot be used to
establish any element of the crime.
The Appellate Division found proof that Michele
left Earley's house at 11 o'clock to go to the family
home 20 minutes away. Again, at this point there's no
proof of that, that's sheer speculation on this record and
contradicted by the testimony that came out. The
Appellate Division found proof that Michele always came
home and that September 12th was the first morning that
she did not come home. At this trial there was proof to
the contrary.
Brian Earley specifically testified that there
were mornings that he would wake up to go to work at 6 or
6:30 and Michele would still be in bed sleeping. There
was testimony that came out both from Brian Earley and
from Pam Brock that Michele did in fact spend nights
outside of the family home. And so that is testimony that
would refute on this record the finding that the Appellate
Division relied on for opportunity.
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So the Appellate Division's conclusion of
opportunity on this record that the People demonstrated
that Michele returned home and that seven hours passed
until Cal called Barb Thayer giving him the opportunity to
kill her and dispose of her body is simply no longer
valid. That line of inferences is no longer permissible.
And so the People's proof of opportunity on this record no
longer exists.
With respect to motive, the People have
identified the motive in this case as Cal's desire to
avoid an expensive appraisal; as the looming trial date in
October of 2001; as the divorce and equitable distribution
and the desire to avoid spending that money; and most
importantly, as his desire to maintain control. But all
of this proof of motive only follows if, as the Appellate
Division found on the record that was then before it after
the second trial, that Michele, quote, the Appellate
Division found, rejected defendant's settlement offer.
There is no proof on this record that Michele rejected
defendant's settlement offer. In fact, to the contrary.
Michele, as everybody knew, was buying a home
because she was going to accept the settlement offer that
Cal was proposing. The People's witnesses, including
Nikki Burdick, testified that they were aware that
Michele's intention was to accept the settlement offer.
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And so on this record there's nothing that would suggest
that there was any loss of control by Cal in this case.
It was his offer on his terms that Michele would accept.
Numerous witnesses have testified in the
People's case that one of Michele's motivations in picking
the house that she picked was because not only was it
close to where the kids went to school, but it was also
close to Cal's dealership. In fact, numerous witnesses
testified that the relationship between Cal and Michele
had gotten better and less troubled as the months
progressed and as the summer was proceeding. They had
both come to terms with the fact that they were divorcing.
Cal had made a generous settlement offer that Michele, as
her friends knew, intended to accept. And to that end,
and only because of that conclusion, she picked a home
because it was important to her that the home would be
close not only to the kid's school, but to Cal, so that
the kids could continue to have a relationship with him as
well and so that it would be easy for him to visit.
So on this record the notion or the notion of
motive that the People have advanced here of avoiding the
costs, of avoiding the looming trial date, of maintaining
control, simply does not exist as it did in the prior
trial. The evidence did not come out the same way on this
point either.
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Moreover, with respect to the looming trial date
there is no question on this record that that trial date
was not an absolute. There is nothing that would have
allowed that October date to be the date that the trial
would happen, to be the date that anything would occur
here.
There was evidence that was presented in this
case from the People's witnesses that whatever the record
that was set in fact that was the date that was -- the
first date that had been set and could be adjourned. The
discovery had not yet been completed, the appraisals had
not yet been done. And so all of this anticipation of
this looming date and loss of control as a form of motive
is simply not borne out by the evidence. Not only is
there not a valid line of reasoning that would support
that speculation, but it's directly contrary to the
evidence that was presented at trial and there is no
evidence that would counter it.
With respect to the element of intent. The
element of intent in this case is actually separate from
the necessary element of a killing. And the element of
intent is also not established by legally and sufficient
evidence here. The Appellate Division found that the
intent in this case was established by proof of a
culmination of a cycle of abusive, controlling behavior
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that intensified after Michele rebuffed defendant's
attempt to prevent a divorce. And that is the Appellate
Division's quote on how intent was established.
The problem is that the culmination of the cycle
of abusive, controlling behavior is founded in this case
on only three incidents. There was a 1996 gun racking
incident that was testified to by the People's witnesses
where Michele was in a closet and heard the defendant
racking his gun. That 1996 incident is so remote in time
and has no link to the divorce at all. There's no context
as to how or why or what precipitated that fight or what
precipitated Michele being in the closet and making that
phone call about the racking of the gun.
The 1996 incident occurred before there were any
affairs either by Michele or by Cal in this case, before
the marriage was suffering, before two of their children
had been born. Whatever it's probative value -- and I
know that this Court made the determination to allow the
incident to come in. The fact is that it has absolutely
no bearing on the question or the element of intent,
because it is entirely disconnected from any of the events
that are at issue, or anything that the People have
theorized is at issue in this trial. It was five years
before the disappearance of Michele.
The explosive reaction when Michele told Cal on
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December 8th, 2000 she wanted a divorce is the next
incident upon which the People rely to establish intent or
to show this culmination of this cycle of abusive,
controlling behavior. The problem with that is that the
December 8 incident did not contain any kind of a threat,
any kind of abuse, any kind of controlling behavior. To
the contrary, that was the date that Cal was first told
that Michele wanted a divorce. It was, as the evidence
has come out -- questionable exactly what Shannon Taylor
heard, but for purposes of sufficiency we're obviously not
going to delve into matters of credibility. But even
based on Shannon Taylor's account, all she heard was that
Cal was telling Michele to get out of the car. And
obviously he had just been told of the divorce and he
wanted to talk.
And so in this context to say that on the day he
was told that she wanted the divorce and he told her to
get out of the car and blocked the car in the driveway,
that this is somehow an event that has any bearing on
intent to commit any crime thereafter is an inference that
is so weak and based on such speculation that it would be
an impermissible inference in this case.
On this point, as the Appellate Division noted
as well and the Court of Appeals thereafter, the alleged
threats -- or I should say as the Court of Appeals noted
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thereafter and the Appellate Division said, the alleged
threats that were reported to Mary Jo and Francine were
not admitted at this trial for their truth. And in fact,
the content of those threats was not before the jury at
all. And so those threats are not ones that can be relied
on by the prosecution in this case to establish intent.
They're simply not part of the evidence that is before
this jury or before this Court.
Finally, the alleged threat that was overheard
by the hairdresser who testified in the People's case was,
as the evidence at this trial established, in May of 2001,
not in September, not in August, not even in July. On
this point the hairdresser very clearly -- first there was
documentation that went in showing the actual dates of the
appointment, and the hairdresser at this trial said that
it very well could have been May. There was nothing that
was suggested or anything in the hairdresser's testimony
that would have established that the date was conclusively
later on in July.
Additionally, to go back to intent and the
culmination of the behavior that intensified as the
Appellate Division said after Michele rebuffed defendant's
attempt to prevent the divorce in this case, this threat
that was overheard by the hairdresser, even if it is
deemed credible, which we would actually argue on the
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testimony that came out here, should be, rises to the
level of actually being incredible as a matter of law.
But even if this Court were to find that that testimony
was completely credible for the purposes of the trial
order of dismissal, if this occurred in May of 2001, again
it would be remote from the date of incident here because
it would have preceded the settlement offer, it would have
preceded the summer of 2001 when both Cal and Michele's
relationship with other people were burgeoning and when in
fact they had both reconciled and had become -- had had a
more amicable relationship or more civil relationship to
each other. It would have preceded the timing when
multiple witnesses testified that things had settled down
and the relationship became more civil.
In other words, the difference between the
testimony at this trial and the prior one with respect to
that one remaining threat is that if it happened in May
2001, which the proof in this trial allows for, in fact it
strongly supports, then it has absolutely no bearing on
the elements of intent because it no longer has a
connection to September. It precedes all of the events
that are essential to the People's theory of motive and
intent in this case.
Finally, the last form of evidence that the
People would rely on here is consciousness of guilt
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evidence. Consciousness of guilt is the weakest form of
evidence, as this Court has noted on a different
occasioning. It is of limited value and it probatively
is, quote, from a Court of Appeals case, highly dependent
upon the facts of each particular case.
Consciousness of guilt evidence is typically, if
one does review of the case law, dependent on statements
or actions that defendant takes that are inconsistent with
innocence. It could be changing, revolving stories. It
could be leaving town when police investigation
intensifies. It could be trying to distance himself from
where the crime occurred. Here consciousness of guilt
evidence is not based on any traditional factors that
would normally constitute consciousness of guilt.
The People rely on defendant's behavior when
Thayer arrived and was making arrangements for the kids on
that morning. They rely on his reaction upon being
confronted by his sisters-in-law. They rely on the fact
that he was having a garage sale and instructed Barb
Thayer to basically erase all memory of Michele and to get
rid of all of her items. But none of those things
establishes consciousness of guilt in the traditional
sense.
And moreover, when one does as the Court of
Appeals instructed, when one puts them into the context
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and the facts of each particular case, not only are all of
those things equivocal, but all of those things in fact
are more consistent with innocence. Cal's behavior on the
morning that Michele disappeared was not odd behavior. He
knew that Michele had stayed out on previous occasions and
had been at Brian Earley's house. He knew, as Brian
Earley testified, that there were nights that she would
stay out and come home in the early morning. School had
just started, it was no longer summer. And so Cal woke up
and found that Michele wasn't there, which wasn't alarming
or surprising to him. Her car was at the bottom of the
driveway, which in fact witnesses have testified it had
been before. And Cal did what he had to do to get the
kids ready for school. He did what he had to do to
proceed with the day.
His behavior in making plans for his children to
ensure that they would be cared for is not consistent with
guilt, it is behavior that is consistent with a man who
had to make a plan to care for his children on a day when
he didn't think at the time that anything horrible had
happened at that time in that morning on that day.
Upon being confronted -- his reaction upon being
confronted with Michele's allegations that he had made
threat by his sister-in-law I think the best testimony
showing how equivocal that so-called consciousness of
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guilt is were the words of Mary Jo. Mary Jo on this
stand, the People's witness, testified that Cal had gone
there for sanctuary. He had gone there to be with his
family to get support at a time that was difficult for him
and his children. Not thinking that he was going to be
confronted or accused with having done something, but
thinking that he would have, again, as she stated,
sanctuary.
His reaction at being ill, of being sick, of
being distressed, of being shocked when he was confronted
instead not with sanctuary and support from his closest
family, but rather with accusations, is one that is not
consistent or would lead to inference of guilt or
consciousness of guilt, it is one that is far more
consistent with innocence.
And finally, with respect to the garage sale
which the Appellate Division relied on most in determining
that there was consciousness of guilt evidence that was
presented here, the garage sale was Barb Thayer's
testimony -- and again, not getting into issues of
credibility. Barb Thayer's testimony supporting the
People's contention that Cal had attempted early on to
erase all memory of Michele, except the evidence at this
trial came out differently because the evidence at this
trial established that was absolutely not accurate.
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There is already in evidence, through Barb
Thayer, through the People's case, evidence that far from
erasing all memory of Michele from the home, in fact Cal
had kept the things that were most significant. He kept
memorabilia, including a plaque that commemorated their
wedding. He kept letters that Michele had written or a
letter that is in evidence now that Michele had written in
her own hand to her children. He kept and preserved other
memories of Michele, including photographs, including
other commemorative memorabilia, and including some of
Michele's clothing that Barb Thayer had said she had been
instructed to remove entirely. So the evidence that has
come out through the People's case already refutes the
fact that defendant or that Cal was actually trying to
eliminate traces of Michele from the home.
On this record, your Honor, even this weakest
form of evidence, this consciousness of guilt evidence, is
so lacking in this case, equivocal at best, but in fact
more consistent with the actions of what an innocent
person would do faced with the situation that had
unfolded. On this record, and viewed through the facts of
this case as it must be, there is no consciousness of
guilt evidence that can substitute or that can help the
People establish the elements of the crime that are so
sorely lacking here.
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And so as a result on this record the People
have failed to establish either the element of a killing
or the element that that killing was intentional. And for
either or both of these reasons this Court should grant
the trial order of dismissal and put an end to this case.
THE COURT: Thank you. Mr. Martin.
MR. MARTIN: Your Honor, under the standard for
a trial order of dismissal the only issue is whether there
is competent evidence if accepted as true would establish
every element of the offense charged, and all the evidence
must be viewed in light most favorable to the People.
Now, contrary to what defense counsel just said,
there was proof that Michele did come home that night.
That's where her van was found. And defense counsel's
pointing out that maybe she had left her van at a parking
lot at a restaurant someplace else before somehow
discredits the fact that the van was actually found at the
driveway at home at Hagadorn Hill Road that night, I think
stretches common sense.
Now, Hagadorn Hill Road is more importantly also
where her blood was found. Her blood was found in the
kitchen alcove, her blood was found on the kitchen rug
that was in the kitchen alcove, and her blood was found in
the garage. And it's not just her blood, but it's her
blood spatter. And it's not just her blood spatter, but
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on the rug itself there is a one inch by one inch transfer
stain of an object that contained her blood that came into
contact with that rug.
In the garage the extent of the area where her
blood was found was a 3 foot by 6 foot area and there was
testimony that Michele Harris could have fit in that area
herself. And the blood that was found, there was evidence
and testimony that it was consistent with having been
cleaned up. And we're not suggesting and we haven't
suggested that we happened upon this scene immediately
after the event had taken place. But that's where her
blood was found, that's where her van was found, that's
where her spattered blood was found, and that's where
Michele was on the night of September 11th and in the
early morning hours of September 12th.
And with regard to the cut hand, your Honor,
there's no testimony that that cut for one was ever
bleeding or was producing blood. Secondly, whatever cut
there was was from an event that occurred many months
prior to September 11th, and there's no line of reasoning
or testimony that would support a line of reasoning that
would suggest that a small cut or a cut on a hand would
generate the amount of blood that was found at the
residence covering an area the size where the blood was
found, or would create the type of spatter that was found
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and the spatter in the exact locations which included the
closed area of the door of the kitchen alcove, and again a
one inch by one inch -- or roughly, approximately,
transfer stain of an object that contained Michele Harris'
blood that came into contact with that rug that happened
to be exactly the same location as the kitchen alcove
where her spatter was found on the walls and on the
molding.
Now, with regard to defense counsel's assertion
that there's only a couple things that point to the
defendant's controlling behavior, I've got to disagree
with that. Not only is there the 1996 incident where
Michele is hiding in a closet while the defendant is
downstairs racking a gun, but he also tells Linda Hyatt
that he cut off her money supply and her allowance because
she needed to learn what it felt like to get a real job
and earn money by herself.
There is the December 8th, 2000 -- and I'll use
defense counsel's words -- explosive reaction by the
defendant in reaction to being told by Michele that this
was done and she was filing for a divorce. There was
attempts by the defendant to get her family to change her
mind about the divorce. There were the threats that the
defendant had made, and whether it's the specific language
of the threat which the jury was not able to hear, but was
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used or not, but the threats that the defendant was
confronted with in Cooperstown by Mary Jo Harris with
Francine present there, regardless of defense counsel's
assertion that the jury can't consider the truth of the
threat, they may not be able to consider the truth of the
statement that -- or you know, the threat that Michele
conveyed had been made by the defendant to her when she
was telling Mary Jo and Francine about that, that does not
mean that the jury cannot find that the defendant adopted
that threat and admitted to it in the sense that he
said -- when he said yes I may have said that but I didn't
mean it, or I didn't mean -- you know, I didn't mean it I
think is where we left it.
There's also the very specific threat that the
defendant makes to Michele over the phone which the
hairdresser hears a mere four months before Michele Harris
goes missing. And the specific nature of that threat I
think is very telling: Michele, drop the divorce. Drop
the divorce or I will F'ing kill you. Do you hear me,
drop the divorce or I will F'ing kill you. And she didn't
drop the divorce.
With regard to some of the other things, you
know, that the defendant's behavior and the things that he
did, he told Barb Thayer on September 11th, 2001, when
they were driving down the driveway to pick up the van at
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the end that Michele had gone to New York City. So we
know that that's not true from the evidence that we've
heard so far. He told Cindy Turner when he talked to her
on the phone, it was I believe on the morning of the 13th,
that Cindy didn't understand that Michele was no good. He
told Cindy Turner that he cut himself a lot shaving as an
explanation for why the police might have found blood in
the garage. There's evidence of the defendant racking the
gun. It's clear that the defendant did not want the
divorce. And I would add that many of the things that the
defense counsel points out are questions of fact for the
jury to decide or is argument for them to make as to the
significance of those particular facts and they can
address that on summation. But in no way, stretch or --
you know, does it undermine the legal sufficiency of the
evidence in this case as it's been presented on our direct
case.
Your Honor, there is a valid line of reasoning
from the defendant's statements and threats to Michele to
the effect that if she didn't drop the divorce that he
would kill her, and then to other people that there was
going to be no divorce. And with her van being located at
Hagadorn Hill Road and the blood there at the house
there's a valid line of reasoning to suggest that that's
exactly what happened, was he had threatened to kill her
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if she didn't drop the divorce, she didn't drop the
divorce and he did kill her. Thank you.
MS. ALDEA: Your Honor, just a brief rebuttal?
THE COURT: Sure.
MS. ALDEA: I'll start with what Mr. Barket just
whispered to me.
MR. BARKET: Don't say that, it may not be
helpful.
MS. ALDEA: Which I think is actually accurate.
Here's the problem in a nutshell. This case was razor
thin last time and now it's weaker. And my point is that
when you look at the Appellate Division's decision on this
razor thin case that divided that by panel and also
divided the Court of Appeals, all of the things that the
Appellate Division relied on, which I highlighted before
and I'm not going to do it again, but things like the fact
that the blood was recent, things like the fact that it
was her blood, these are things -- that was the strongest
part of the proof that the Appellate Division relied upon
and those things are lacking.
A fair reading of the Appellate Division's
decision on sufficiency, which again I don't agree with
Mr. Martin's statement of what the rule is. Certainly the
standard is that you draw all inferences in the
prosecution's favor. I'm doing that. I'm not arguing
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credibility before this Court. However, even with that
said, the Court of Appeals has cautioned that they need to
be permissible inferences. It cannot be based on sheer
speculation.
The People have to prove the circumstantial
facts that establish that a homicide occurred where there
were no witnesses that saw it, where there was no body
that's ever been recovered. Without the recency of the
blood, without showing that it is Michele's blood, the
People simply cannot, cannot, make that case in a way that
is legally permissible. And as a matter of law, based on
the Appellate Division's own decision, if this case were
before them it would be rejected unanimously as legally
insufficient because all the factors that that court
relied on most pointedly in its decision are now lacking.
Just a couple of points with respect to -- to
address some of the things that Mr. Martin argued. First,
the fact -- he made the argument about the blood in the
garage and the kitchen alcove. He said, and I'll quote,
her blood, and that it was blood spatter, and that there
was evidence of clean up, and that it was -- there was no
testimony, I think is the quote, that spatter and this
quantity of blood could come from a cut hand.
The question is not what testimony we've
presented, although surely we will, and we will in fact
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renew this motion, if it's not granted now, at the
conclusion of all the evidence in the case. The question
is what testimony they presented to establish it. And I
would point out that with respect to the cut hand, to go
in reverse order, their expert testified on their direct
case that this would be consistent with a cut hand.
We now have evidence that did not exist at the
prior trial that in fact there was a cut hand. And to
suggest that that cut hand did not bleed defies the
dictionary definition of the word cut. It also defies, as
the prosecution knows, is actually the facts of this case.
Which again, that's something we will renew at the
conclusion of all the evidence in this case. But there is
no question that they know, as the records demonstrated,
that that cut did in fact bleed. There is no question of
that and the prosecution is aware of it.
It should not be permitted in a sufficiency
argument to rely on a definition of cut that's contrary to
the plain meaning and that they know is contrary to the
actual evidence in this case, that they were aware of and
their expert was probably aware of at the time, that as
the jury saw on video he was consulting with the district
attorney who specifically asked him about the cut hand.
Additionally, with respect to the cut, to say
that there is no testimony that -- I'm sorry, not to say
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there was no testimony. To say that this is her blood and
that this is blood splatter as the prosecution did is to
ignore the evidence that came off the stand, and so that I
guess is worth repeating. There is no proof that the
prosecution has proffered in this case that this is
Michele Harris' blood. They have shown that there is
blood in an area where we already know that there was dog
blood. They have shown that there were species tests that
were available for them to do to ensure that the blood was
in fact human and they did not do those species tests on
the areas on which they rely.
And most importantly, while there was testing
that might have been available to show, as their own
expert testified, that the DNA was in fact extracted from
blood and not from skin cells or something else, they did
not do those tests. And so on the evidence as they have
presented it all they have shown is that Michele's DNA, as
expected, would be on an area rug in an area of the house
that she lived in, that she actually frequented more than
anyone else, that their own witnesses have testified she
walked across daily barefoot and undressed, and that their
expert has acknowledged would be a source that would be a
reason to have a deposit of her DNA in that area.
Without showing that the DNA came from the blood
that was recovered, without showing that most of those
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spots of blood were even human blood, there is simply no
way that the People have established what Mr. Martin just
relied on, that it was her blood. That fact, that
inference, does not exist in this case. It is not a
permissible inference it is a deficiency in proof.
With respect to the blood splatter, the fact
that it was spatter, their expert testified now with the
term medium velocity impact splatter no longer valid that
he couldn't determine whether this was impact spatter or
whether it was some other type of spatter. And I believe
that that's changed from some of the evidence that was
elicited at the prior trial.
Their expert testified that this spatter could
be consistent both with something striking the blood or
with the blood striking an object, like for instance
falling onto something, and therefore spattering as a
result of that. And again, as I've stated, he testified
that it would also be consistent with a sneeze, it would
also be consistent with shaking a hand, and he
specifically said that it would be consistent and he could
not exclude that it was a cut hand.
I would also note that with respect to the
height of the blood and how it was deposited that 29
inches is perfectly consistent with the height of a
person's hand, of a 5 foot tall person's hand that's
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hanging down low when they shake it. And so there's
nothing in the evidence here that would establish a
significance of the spatter that would tend to suggest
criminality. And with respect to the quantity of blood,
as I said the quantity of blood is wholly inconsistent
with the crime seen. There simply is not enough blood to
be consistent with that. It is far more consistent with
the things that their expert identified, the cut hand that
could have also resulted in this.
Assuming that the DNA and that the blood that is
there is all hers rather than dog blood with human skin
cells on top or an unknown male's blood or another
person's blood with skin cells deposited on top with
Michele's DNA from the skin cells. Which again, is
testing that was never done in this case, although it
could have been.
With respect to the controlling behavior, the
prosecutor argued that there was evidence that Cal cut off
Michele's money supply. Although I would note that that
cutoff of the money supply is certainly not timely to the
time that Michele actually disappeared. In fact, by that
point he was -- through all the times I should say he was
providing for all of her expenses, including her car,
including her gas, including her food, including the other
expenses for the child care that the children had, paying
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the bills of the house, paying for the kids' school. And
so it wasn't that her money was cut off in the sense that
she couldn't support herself or survive. Moreover, the
timing of that -- what was the date of the order?
MR. BARKET: June.
MS. ALDEA: By June there was an order in place
that Cal was already providing Michele with weekly checks
again in the amount of $400 at that time. And so the
prosecution's theory that this cutoff of the money supply
was somehow part of this culmination that resulted in her
disappearance in September is simply divorced from the
facts of this case.
The explosive reaction I want to highlight was
actually not my words, I was reading from the Appellate
Division's decision, and that was on December 8th. Again,
for purposes of consciousness of guilt having explosive
reaction that consists of nothing more than saying get out
of the car because he wanted to talk to her on the day
that she tells him she wants a divorce is certainly not
indicative of guilt or a valid line of reasoning that
would suggest anything.
And finally, with respect to the threats that
Cal allegedly made, the People come dangerously close
again to using those threats for their truth. There is
nothing in the threats that Francine and Mary Jo overheard
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that were before this jury certainly in terms of
substance, and the value of those threats is his reaction
upon being confronted which again in this trial, although
it's different from the prior two, Mary Jo and Francine
both made it clear that his reaction was shock and of
surprise when he came there for sanctuary, which is their
own witnesses' words, is something that is perfectly
consistent with innocence not with guilt.
Additionally, the People relied on Cindy
Turner's testimony here that Cal had apparently told her
that -- the quote is that he cut himself shaving in the
garage in order to explain the blood. Cindy Turner
actually testified at this trial that Cal said or it could
have been the dog's blood. And so in fact I would point
out that Cal was absolutely correct, because it turns out
that it was the dog's blood in an area of that garage, and
because of the lack of species tests on a lot of this
blood it was perhaps the dog's blood in other areas of
this house where these less than 10 drops of blood were
found in the garage and then 10 drops of blood or 10
droplets of blood or quantity far less than that found on
the rug.
Finally, with the hairdresser, I think that
Mr. Martin has missed the point. The point is that at the
prior trial the threat that the hairdresser allegedly
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overheard was significant because of its timing. Because
its timing was allegedly something that had occurred late
in the game. It had occurred in July, which would have
placed this at a time that would have contradicted the
testimony of other witnesses or led to an inference that
in fact things were not getting better, settling down, but
rather things were becoming increasingly worse as the date
of Michele's disappearance approached.
At this trial the hairdresser acknowledged and
the records support that that encounter in fact occurred
in May, which was a time, as I said, prior to the summer.
So the significance of what Jerome overheard, even
assuming that he's not incredible as a matter of law,
which as I said I think his testimony does rise to that
level. The significance of what he claims he overheard is
completely diminished from any probative force as a result
of the timing that came out differently at this trial than
it had in the past.
In fact, what we have on this record is numerous
prosecution witnesses saying that rather than this being a
culminating cycle that was leading up to a crescendo that
ended on the date of Michele's disappearance as things
were getting worse, all we have on this record is multiple
prosecution witnesses saying again and again that things
were getting better between Michele and Cal at the end of
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August and at the beginning of September, which is
precisely the time frame that is most probative on the
question of control and on the question of the theory of
the prosecution's case for murder and for intent.
And so on this record again there is -- there
was scant evidence at the prior trial. On this record
none of the Appellate Division's key facts that it relied
on are satisfied based on the evidence as it came out
before this Court. And so again, the motion for trial
order of dismissal should be granted.
THE COURT: Mr. Martin.
MR. MARTIN: Judge, I'll try to be briefer, but
I want to also just bring to the Court's attention though
too about the admissions that the defendant made to
Investigator Myers, that the defendant admitted to
Investigator Myers the day after that he had made no
contact to contact Michele; that he had made an offer to
Michele for settlement in the divorce and that he believed
she was rejecting that because she had not accepted it and
he had not heard back from her or her attorney; that she
had never stayed out all night before like that; and that
he wanted her van back as soon as possible because he
wanted to put it on the lot and sell it.
Now, with regard to Jerome, the hairdresser, I
may have misspoke if I said four months prior to that or
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not, but the testimony was clear and defense counsel
misstates what the records is. The hairdresser said that
he cut Michele's hair in July. Now, defense counsel
tried -- they put in the record he said that he didn't
make those records, but I believe the testimony is clear
that it was July. But nonetheless, whether it's July or
May I don't think matters too much.
The defendant said to the hairdresser drop the
divorce, and there's a lot of other words with this, and
the tone according to the hairdresser was angry, mad and
something of that nature. Drop the divorce, drop the
divorce, if you don't drop the divorce I will kill you.
Do you hear me, Michele, if you don't drop the divorce I
will, expletive, kill you.
So the fact is that come September 11th, 2001,
the divorce was still set for trial in October and
according to the admissions that the defendant had made to
Investigator Myers he still believed that the divorce was
going to go to trial, he had made an offer and that was
being rejected. And so on September 11, 2001, the divorce
was still pending and Michele had not done what the
defendant had asked her to do or threatened to kill her
and actually make her disappear.
Now, with regard to the blood evidence, there's
nothing lacking here. Both DNA experts described the
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blood evidence as single source samples and the swabs that
were tested were taken from the staining and that there
was no other DNA in those stains. They weren't mixtures,
they were single source samples, and somebody can infer
that that was her blood. Now, the quantity of the blood
that existed when the state police finally got there and
found it was certainly after it had been cleaned up and
the scene had been altered.
And with regard to the species testing, again I
think defense counsel is misstating the records. In fact,
Brad Brown testified that he had done confirmatory tests
to a couple of the stains and did confirm them as human
blood. And specifically the DNA experts also testified
that regardless of whether confirmatory species test is
done with regard to every single sample that is tested,
that the profile that's generated through DNA tells them
whether it's human DNA or some other type of species.
And I would also say that defense counsel
misstated the record. The expert did not say that all the
spatter that was in the alcove and the spatter that was on
the rug and the one inch transfer stain of a bloody object
with Michele's blood on it that came into contact with
that rug and the 3 foot by 6 foot area in the garage with
several hundred stains on them that had been cleaned up
was consistent with a cut hand, and I would submit that
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that's, you know, actually ridiculous.
So the only issue is whether there's competent
evidence if accepted as true would establish every element
of the offense charged and I think there's plenty of that
and we certainly cleared our burden or our hurtle on that
issue.
MS. ALDEA: Your Honor, I just forgot to address
the cleanup before. Could I just address that one very
minor point?
THE COURT: Sure.
MS. ALDEA: With respect to the cleanup I had
taken a note of it and I forgot to say it. The problem
with the People's argument on a lot of this is that all
he's saying is it was consistent with cleanup. Consistent
with means also not consistent with. In other words, it's
consistent with a lot of things. To say that there was
evidence of cleanup in this case in the garage when all
that's shown here from this proof is that police officers
were walking with muddy boots after it had rained over an
area of the garage floor that had blood on it.
And the only evidence actually or the testimony
is alteration, that some of the stains had been diluted,
although some of them were whole blood, some of them had
been altered in the sense that they had been touched or
they had come into contact with something other than they
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were left alone. That is not evidence of cleanup. To say
that it is consistent with cleanup is to say it's also
consistent with people walking over that area. Over an
area that in fact might have been there for months. It
might have been there from the cut hand because we have no
way of dating how long any of that blood or those hundreds
of blood droplets had been there.
And in fact, what's interesting is that while
there was that fluorescein picture that came into evidence
at the prior trial that showed that there was a pattern
that would have been consistent with a wipe, that evidence
notably did not come into evidence at this trial. So even
the proof of the so-called cleanup is weaker now than it
was before because that pattern is not evidence. That
picture was excluded. And interestingly, the reason that
picture was excluded, which of course makes perfect sense,
is that what was lacking even then was there was no blood,
in spite of this LMG test, the leucomalachite green test,
that Dr. Lee testified would detect the presence of blood
when it's one to one million parts of blood to water. In
spite of that there was absolutely no positive test for
the presence of blood in that cleanup pattern or in that
swipe pattern that was shown on the fluorescein dye, which
is why there is not evidence of cleanup in this case.
In fact, to have some areas that are diluted
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next to some areas that are whole blood, to have areas
that are untouched surrounded by areas that appear to have
been altered and which could have been altered by someone
walking on them is not evidence of a cleanup effort, it's
evidence of blood being there, either from a dog or from a
human or from Michele or from someone else, blood being
there for a period of time that has been subjected to the
normal conditions of wear and tear in a frequented area of
a family home that everyone uses through all weather to
come in and out of the house.
And so, again, the fact that there is a line --
the fact that it is consistent or potentially consistent
with cleanup is not to say that the People have proven
that a cleanup occurred. It is their burden of proof in
the end and even legal sufficiency requires them to have
adduced proof which is precisely -- I'm going to end on
the quote with which I began. It's precisely why the
Court of Appeals has said that close judicial supervision
of verdicts or cases here based solely upon circumstantial
evidence is necessary to ensure that the jury does not
make inferences which are not based on the evidence
presented but rather on unsupported assumptions drawn from
evidence equivocal at best.
Cleanup, like saying it's Michele's blood, like
saying it's spatter that's caused by an impact or a murder
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is nothing more than the People's attempt to ask the jury
to make an inference which is based not on evidence
presented, because there is not evidence of any of those
things but rather on unsupported assumptions drawn from
evidence equivocal at best.
When their own argument before this Court is
riddled with may, words like it may be and it's consistent
with rather than the evidence as shown, that is the
clearest indication of the weakness in their case and the
fact that they have not, even drawing all inferences in
their favor, satisfied the test that the Court of Appeals
has enunciated for the legal sufficiency of evidence.
THE COURT: Okay. The Court will reserve
decision on the application.
MR. BARKET: Judge, could you wait just one
second with respect to the Damon slash Rosario material?
THE COURT: Sure.
MR. BARKET: I think this is the Damon slash --
THE COURT: Why don't we call it CPL 240.45
because I think we're confusing each other.
MR. BARKET: Okay. Sub two?
THE COURT: Same section.
MR. BARKET: So here's for Ms. Angulas, Terry
Labor, Todd Mansfield, and Kevin Tubbs, which are the
witnesses that we intend to call given the Court's ruling