Defense Witness #10: Det. Craig Grogan
Direct Examination: Mark Geragos
Cross Examination: Birgit Fladager
Grogan had in his notes Sharon's statement that Laci called family and friends around 7 am on June 9 2002 to announce her pregnancy, and remarked that he did not come across anything else in his investigation that suggests anything else. Fladager didn't ask any questions about this in her cross.
Geragos introduced a number of pictures taken December 27 and February 18 of the Covena home. The 27th pictures included a recipe for French Toast. The 18th pictures included items of sentimental value, as one of the functions of that search warrant was to determine if Scott had disposed of any sentimental items. Also included was picture of a camouflage jacket, which was sent in for testing, with negative results. Another camouflage jacket was seized in the December 27 search and already sent for testing, with results negative. Scott said he wore a camouflage jacket to the Marina on the 24th.
Geragos questioned Grogan about his request of the Rocha family and friends to see if they remembered anything unusual about Scott once they knew about Amber. Geragos went through all the times Grogan met with Sharon or talked with her on the phone, and she didn't say Scott told her in the first call that Laci was missing. He also noted Grogan's awareness of an interview Sharon did the night before she found out about Amber, when she said it was she that first used the word "missing," not Scott.
Grogan testified that the information given to them by Harvey Kemple, about Scott going to the Country Club to golf was proven inaccurate. Scott was tailed to the Club once by surveillance, at 5:15 in the evening, and only was there 30-45 minutes.
Geragos noted other witnesses that came forward with new information about Scott after Amber was revealed, all proven to be false.
Defense Witness #11: Det. Jon Buehler, MPD
Direct Examination: Mark Geragos
Cross Examination: David Harris
Geragos' emphasis with Buehler was recounting the interviews he did of people at Salon Salon to determine what Laci was wearing the night of the 23rd. He interviewed 4 people on February 4, and they all gave different descriptions. He went back to Salon Salon on March 27 to interview more, and re-interview Perry, and also showed Perry digital photos of the clothes found in Laci's home. Besides not agreeing with each other, the people Buehler interviewed did not agree with the group Grogan interviewed.
Wiretapped Conversation, April 18, 2003
Both parties stipulated the foundation of the tape, which precluded Jacobsen from being recalled as a Defense witness. The conversation was picked up by a wiretap that Jacobsen obtained. The call took place at 7:08 am, and was between Scott and his brother Joe Peterson. Main points of the conversation were:
--Scott said he wasn’t
going to join them after all for golf that day
--Scott said he was being followed by private investigators, they
had stopped and he asked them who they were but they wouldn't say
--They talked about how quick the bodies might be identified, so
much hype out there
--Joe mentioned seeing
pics in ModBee of all the people putting flowers and stuffed animals
on the lawn at the house
--Joe said we pray and pray, we don’t know what else to do
The tone of the conversation indicated neither Joe nor Scott believed the bodies would be Laci and Conner.
Defense Witness
#12: Jacqueline Peterson
Direct Examination: Mark Geragos
Cross Examination: Rick Distaso
Jackie was asked about the money Scott had in his possession when arrested. She had withdrawn $10K on April 8 to assist John Peterson in buying out Scott's Dodge truck. She gave $7-8K to Scott for his equity in the truck. She had intended to draw it out of the account in her name, but the Bank of America took it out of Scott's account, which she is also listed on. Scott called it to her attention, and she withdrew $10K from her Washington Mutual account and gave the cash to Scott that day, when they were together at an Art Exhibit. She gave him cash because she didn't want Bank of America to put a hold on the funds.
Jackie said that she told Scott to purchase the Mercedes in her name because he was tired of losing vehicles. Distaso questioned that, since no vehicle had been impounded since early January, but Geragos noted how Scott continued to make monthly payments on the impounded truck and selling the Dodge to John and getting the Mercedes was a way of reducing his payment level.
Jackie also testified about the amount of walking she and Laci did at Carmel, over several hours shopping while Lee and Scott golfed. Distaso noted that the two women still had a vehicle available to them and all the places they went were accessible by vehicle, but Geragos asked Jackie on re-direct to confirm the two women had walked all those places, and not driven.
Defense Witness #13: Lee Peterson
Direct Examination: Mark Geragos
Cross Examination: Rick Distaso
Lee testified to the homemade cement anchors that Scott saw while with him on a fishing trip at Lake Poway, which look identical to the one Scott made. He also said he was the one that made the golf tee time for April 18 for himself, Scott, Joe, and Mark, so they could have some time together and some sense of normalcy. He explained how the resident discount work and admitted Scott would be misrepresenting himself by using John's driver's license to obtain one, which would result in about $25-40 reduction in green fees. Distaso asked whether he didn't think it unreasonable that Scott was attempting to save $25-$40 when he had almost $15K in the car with him, and Lee replied, "My son wasn't paying, I was."
Defense Witness #14: Officer Michael Hicks
Direct Examination: Mark Geragos
Cross Examination: Birgit Fladager
MPD Tactical Patrol. Involved in the investigation of the Medina burglary. On January 2, he had one of the suspects, Steven Todd, in the back seat of the patrol car and Todd told him he would tell him about the burglary, but he wasn't involved with the woman and the baby. The Judge interrupted to instruct the Jury that the testimony was not given for the truthfulness of what Todd said, but for the reasonableness of the investigation.
Todd said he routinely drove his bike from his home in the Airport district, down Covena, into the park, and up the foot path the Scenic to his Mom's house, and then he would take the reverse route back home. On December 25, he noticed that the Medina house appeared to be empty. He returned about 3 am on the 27th, removed some items, and used the dolly to move the safe out into the front yard behind some bushes. He went to get Pearce and about 4:00-5:00 am they took Pearce's Mom's car back to get the safe.
Defense Witness #14: Officer Michael Hicks
Direct Examination: Mark Geragos
Cross Examination: Birgit Fladager
Hicks provided information that was given to him in his interview with the other burglary suspect, Pearce, which substantially agreed with what Todd told him, except for fixing the date of the burglary on the morning of the 26th, instead of the morning of the 27th.
At the conclusion of Hicks' re-direct, the Defense Rested its case.
Judge Delucchi told the Jury that 8 rebuttal witnesses will be called by the Prosecution on Wednesday, October 27, and court would convene at 12:30.
Closing arguments are still scheduled for next Monday and Tuesday.
In a surprise ending, the Prosecution decided not to put on its rebuttal witnesses. The Judge read four stipulations and dismissed the Jury until Monday morning to hear closing arguments. Thursday will be spent with the attorneys and Judge deciding which exhibits will be admitted into evidence, and Friday settling the instructions to the Jury.
1st
stipulation
If Vladimir Rodriguez were called to testify, he would testify as
follows: That he was shown photographs that had been downloaded from
the internet showing a bag of concrete in the Peterson driveway.
Rodriguez would testify there were several bags of concrete
purchased and placed in the driveway. He would testify that they
were going to use the concrete to replace the fence post that
supports the gate by the driveway that was removed in order to
access the backyard with a tractor to dig the hole for his pool.
Rodriguez would testify that when they removed the fence post by the
gate, they found it was not in concrete. Rodriguez would further
testify that the contractor did not replace the front fence post by
the gate in concrete since there was no concrete to begin with.
Rodriguez identified the bag of concrete in the photographs, that
has been labeled 295A through F, as being his. Those are going to
be moved into evidence. There were four photographs about the
driveway with a bag of concrete. He would further testify that he
does not know what happened to it after it was not used for the
fence post. Rodriguez said it remained in the driveway for several
weeks. And then he assumes the contractor used it somewhere else.
Rodriguez would further testify that he had no concrete work done on
the Peterson property. Okay, that's what he would testify to. So
that testimony is not in dispute.
2nd stipulation
It is also stipulated that People's Exhibit Number 298 is an e-mail
recovered from the dining room table on February 18, 2003, during
the search warrant at 523 Covena. And that's been admitted into
evidence. And when you when you are deliberating, if you want any
of these exhibits, obviously we'll send them to you, you can go
through them.
3rd stipulation
The Defendant's H is going to be admitted in evidence to take the
same number, now Defendant's H. If you recall this goes way back.
Remember Mr. Austin testified from the store, and he identified a
no-sale receipt from Austin's. That's going to be admitted into
evidence.
4th stipulation
There was also a stipulation that defendant's next in order was
recovered by Lydell Wall. Off the computer, Scott's computer. And
then the defense marked as 9D, Defendant's 9D is a 3-page document
9, D's which was a Yahoo Search conducted on Scott Peterson -- on
Scott's computer, which results in a map of The Bay. This was
recovered by Mr. Lydell Wall on August the 7th, 2003. And there is
no dispute that that's what he did. And that's also been admitted
in evidence and take the same number.
Judge Delucchi met with the attorneys to rule on exhibits to be admitted into evidence, and to finalize the Jury instructions.
Exhibits to be Admitted into Evidence
The attorneys prepared a list for the Judge of the exhibits in dispute, and the Judge ruled on each, tentatively. People presented 298 exhibits and Defense D to the 9th power.
•People's 86 will not be admitted into evidence by stipulation.
•People's 259, Dr. Galloway's anatomical chart of Laci's remains, will be unsealed for the Jury, but not placed on the internet.
•Defendant's R, portions are to be redacted.
•Defendant's 2M, the report from San Joaquin, is not admitted by stipulation.
•Defendant's 5M, items recovered from a computer. Not admitted by stipulation.
•Defendant's 6C3-10 was not identified on the record.
•Defendant's 6R, labels from Trade Corp, is withdrawn, no foundation.
•Defendant's 6S-3, photo of the umbilical cord with captions added. Photo is admitted with captions redacted, sealed for the Jury to see but not put on the internet.
•Defendant's 7Y5-6, withdrawn
•People's 51, 52, 102I, 103B, 104, 105A-G, 106A-G, 248A-Q, 250A-N; Defendant's 2X, 6S1-2; The autopsy photos to be sealed for the Jury to see but not put on the internet
•People's 87, police report by Holmes dated December 30, 2002, The Court's general ruling is that police reports containing opinions and conclusions are hearsay and normally not admitted into evidence.
•People's 106F, G, H, I, J, and L, photos of Miss Fulbright in the boat. Defense objected on the grounds that it wasn't present and doesn't know what the circumstances were. Delucchi ruled to admit the photos because foundation was established, Fullbright was available for cross examination, and they go to weight not admissibility.
•People's 113, list of parolees and 290 sex registrants in the city of Modesto, Prosecution withdrew it, but Defense wanted it in. Judge ruled it in and sealed for the Jury to see but not put on the internet.
•People's 134, photo of Det. Hendee with the leaf crown on his head to look like Julius Caesar and skylarking around. Prosecution withdrew it, Defense argued it be kept in as it goes to bias and motive and if it accurately reflected what was going on at the time. Geragos said he made a tactical decision not to show the picture at the time to the Jury, waiting instead to argue it. Delucchi ruled against admitting it because it does not have probative value.
•People's 187A, offered by the Prosecution to show that Scott previously had offered an item on eBay but sold it outside eBay and thus could have followed the same route to sell the Croton watch. Delucchi refused to admit the item, ruling that it's relevance was rather minor.
•People's 286, 3 page DMV form from Ruvalcaba, admitted but sealed because of personal information on the bill of sale, can be shown to the Jury but not put on the internet.
•People's 278, search warrant video from February 18, 2003, to be admitted video only, without the narration by Grogan.
•People's 160A-B, other autopsy pictures, to be sealed by stipulation, shown only to the Jury, not put on the internet. 160A shows Laci's right thigh with duct tape and barnacles, hair samples, and pubic hair samples.
•People's 182A-EE, binder with contents, sealed because of personal information, to be shown to the jury, but not put on the internet.
•People's 204, 205A, and 206A-E, various AT&T cell phone records, admitted but sealed because of personal information, to be shown to the jury but not put on the internet.
•People's 221, eBay binder, admitted but sealed because of personal information, to be shown to the jury but not put on the internet.
•People's 29, cell phone records of defendant, admitted but sealed because of personal information, to be shown to the jury but not put on the internet.
•People's 35, cell phone records for Susan Medina, admitted but sealed because of personal information, to be shown to the jury but not put on the internet.
•People's 249A-B, cell phone records for Amber & Ron Frey, admitted but sealed because of personal information, to be shown to the jury but not put on the internet.
•People's 131A-E, 136A-B, 137A-B, unedited versions of the media interviews, not admitted because they are unedited versions and the Court ordered redacted versions be played for the Jury.
•Defense G1-2, emails with respect to park closure and Laci's efforts to regulate the transients. Prosecution argued that no foundation laid, Defense argued foundation laid by Cloward. Delucchi ruled to admit into evidence.
•Defense L1-3, press advisories for Jan 9, 10 and 11, 2003, indicating where searches were being conducted. Prosecution claimed no foundation. Delucchi ruled to admit, goes to weight rather than admissibility.
•Defense QQ, Brocchini's notes. The Defense used only one sentence from the notes in cross examination. Not admitted.
•Defense M, press advisory on the burglary. Not admitted, no foundation.
•Defense N, purchase ticket from a pawn shop, regarding Croton watch pawned by Deana Renfro. Prosecution objected, lack of relevance. Admitted, goes to weight rather than admissibility.
•Defense NN, flyer on reward for Medina burglary. Prosecution objected, hearsay and no foundation. Admitted, goes to weight rather than admissibility.
•Defense 5R1-2, newspaper articles regarding the anchor. Prosecution 352 objection, multiple layers of hearsay information.
•Defense 6C1-11, photos of yellow-handled pliers and red-handled wire cutters. 6C1-2 & 6C11 were identified and foundation provided, admitted; 6C3-10 were not identified, not admitted.
•Defense 6I1-2, yahoo maps of Stockton and Tracy; 6I3, Safe Track, a DOJ map. Admitted.
•Defense 7A1-2, receipt for building supplies. Admitted by stipulation.
•Defense 7B, ModBee article stating Scott went to the marina.
•Defense 7M, press release. Prosecution submitted, based on Delucchi's previous ruling on other press releases. Admitted.
•Defense 6V1-6, press releases. Prosecution submitted, based on Delucchi's previous ruling on other press releases. Admitted.
•Defense 6Z1-2, bag of cement and receipt. Delucchi objected because Geragos had promised Raffi would testify that Geragos did in fact purchase the cement. Geragos withdrew, not admitted.
•Defense R, Central Valley HIDTA report, page 4. Redacted to include only the phone number that the Defense wanted: 14 the January 13th, 2003, at 7:22:52 a.m., incoming call to voicemail, ask Scott to call him when he's available. Redacted version admitted by stipulation.
•Defense 4C1-7, photos of 523 Covena. 4C1 and 4C7 not admitted, no foundation.
•Defense 6J3, photo of the 523 Covena driveway. No objection to being admitted, just that the photo is missing. Delucchi asked all of the attorneys to check their briefcases.
The parties agreed that the exhibits admitted into evidence, except the sealed ones, will be available to the media for viewing on Wednesday afternoon, after the Judge has instructed the Jury and dismissed them for deliberations.
Discussion on Jury Instructions
Dog Tracking Evidence
Delucchi's
recommendation: Evidence of dog tracking
of the victim has been received for your consideration. This
evidence is not, by itself, sufficient to permit an inference that
the defendant is guilty of the crime of murder. Before guilt
may be inferred, there must be substantial evidence that supports
the accuracy of the dog tracking evidence. The evidence can be
direct or circumstantial, and must support the accuracy of the dog
tracking evidence. In determining the weight to give to dog
tracking
evidence, you should consider,
whether or not the handler was qualified by training and experience to use the dog;
whether or not the dog was adequately trained in tracking humans;
whether or not the dog has been found reliable in tracking humans;
whether the dog was placed on the track where circumstances have shown the victim to have been;
whether or not the trail had become stale or contaminated by the environment, weather, or any other factor; And
any other factor that could
affect the accuracy of the dog tracking evidence.
Geragos asked for vehicle tracking to be specifically added to #3, but Delucchi thought it was better to be broad and then let Geragos argue the vehicle tracking point. Geragos then asked for "scent article" to be added to #5, to say "the trail or scent article." Delucchi said he didn't get specific because he didn't want to appear to be commenting on the evidence.
David Harris noted that the instruction should exclude the word "substantial" in the sentence, ". . . there must be substantial evidence that supports the accuracy . . ." Delucchi agreed that it should say "other evidence," not "substantial evidence," based on CalJIC 2.16. That was the only change recommended.
Failure to timely produce evidence
Geragos requested an instruction on the Prosecution's failure to timely produce evidence. Delucchi admitted it was a problem, but noted that the problem hasn't surfaced again since his sanction of striking a witness' testimony. Delucchi was prepared to use CalJIC 2.28, which includes both the Prosecution and Defense, but Geragos objected to the inclusion of the Defense. Delucchi finally said he thought striking the witness' testimony was sufficient, and including an instruction would be beating the issue to death.
mtDNA
David Harris requested an instruction on mtDNA, but only to make Delucchi aware of what Girolami's ruling. Delucchi won't include the instruction, saying it amounted to commenting on the evidence.
Resolution of conflicting expert testimony
CalJIC 2.83 is the standard instruction, and will be given.
Concurrence of act and specific intent
CalJIC 3.31 is the standard instruction. Delucchi said his emphasis will be that the the definitions of first and second degree murder includes the intent.
Proof need not be shown as to the exact time of the crime
CalJIC 4.71 is the standard instruction, and says that on or about is close enough.
Degree of murder
CalJIC 8.70 is the standard instruction.
Doubt whether first degree or second degree
CalJIC 8.71 says that if there is any doubt whether it's first or second degree, the defendant should be given the benefit of the doubt and verdict of second degree returned.
Involuntary and voluntary manslaughter
Geragos requested an involuntary manslaughter instruction IF Delucchi gives a second degree instruction. Prosecution objected on the grounds there is no evidence in this case to reduce it to involuntary or voluntary manslaughter. Delucchi defended his inclusion of second degree instructions, saying that Geragos spent much time disabusing the Jury of the notion that Scott premeditated and deliberated Laci's murder, but if they are convinced he did murder Laci, the second degree is the next rung on the ladder. Or, if t is a hung Jury, the Stone instruction requires second degree be considered. If the Jury is going to acquit of first degree, second degree must be considered. The Judge further argued that you can't commit the greater without committing the lesser, so it stands to reason to allow consideration of the lesser. Delucchi said he will not include the manslaughter option.
Flight
Geragos
objected to inclusion of a flight instruction. Delucchi
proposed:
The attempted
flight of a person after the commission of the crime, or after he is
accused of a crime is not sufficient, in itself, to establish his
guilt, but is a fact which, if proved, may be considered by you in
the light of all the other proved facts in deciding whether a
defendant is guilty or not guilty. If there was such an
attempted flight, the weight to which this circumstance is entitled
to is a matter for you to decide. Mere return to familiar
environs from the scene of an alleged crime does not warrant an
inference of guilt.
Geragos asked for the following modification: If there was such an attempted flight, that is for the jury to decide. The weight to which this circumstance is entitled is a matter for you to decide. All parties agreed on this change.
Pre-trial statements
The note comment on CalJIC 2.70 says The court has a sua sponte duty to give the instruction whenever a pretrial statement of a defendant is received that tends to establish guilt when considered with the remaining evidence in the case, regardless of whether the out-of-court statement is technically an admission under the traditional rules of evidence. And cites about six cases. Geragos argued that Scott's statements were not an adaptive admission. David Harris asked for CalJIC 2.71 to be included, which says it's a pre-trial statement of a defendant that's received that tends to establish guilt by placing himself where the bodies are found. Delucchi said he thought it was not justified under the evidence.
Geragos
objected to inclusion of 2.71, 2.71.5, 2.71.7, and 2.72.
Delucchi commented that he didn't
see any pre-offense statement that indicates any intent, plan,
motive or design that he may have uttered. D. Harris replied
that the statements to Shawn Sibley and Amber Frey that he had just
lost his wife qualified, but Delucchi said that was not persuasive.
Delucchi
said he will give CalJIC 2.73 as modified.
Opposition to media coverage of the verdict
Delucchi originally agreed to media coverage of the verdict because of no objection from either party. Subsequently, both the Peterson and the Rocha family expresses objections. "I don't want to expose the families to further scrutiny, and turn this into some sort of a spectacle, depending on what the verdict is going to be in this case."
Availability of Attorneys for the Verdict
Delucchi expressed concern about the attorneys all returning home and not being available when a verdict is reached. Pat Harris will remain in Redwood City in order to be available on demand, and Geragos will be available if his commitment to the Preliminary Hearing in Pasadena allows him (the hearing has been conducted on Fridays). David Harris asked for a 2-hour notice time to accommodate the family members living in Modesto, but Delucchi insisted they stay in Redwood City because the time of day the verdict comes in cannot be predicted and traffic may prevent them arriving within 2 hours.