EXHIBIT

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 1 of 106
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PINAL

THE STATE OF ARTZONA, ) 2 CA-CR 20t4-0034

)

Plaintiff, ) No. CR201-103026

)

-vs- )

)

FERNANDO SEGOVIANO ALMANZA, )

)

Defendant. )

)

Florence, Arizona

September 30, 20:--3

8:48 a.m.

BEFORE: The Honorabl-e Boyd T. Johnson,

,Judge of the Superior Court

REPORTER'S TRANSCRIPT OF PROCEEDINGS

,JURY TRf AL, DAY 1

( COPY )

PREPARED FOR:

Arizona Attorney General

Criminal Appeals Section

REPORTED BY:

Jacquelyn A. A11en, RPR

AZ Certified Reporter No. 50151

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 2 of 106
fNDEX

MOTIONS TESTIMONY

WITNESS: PAGE

DETECTIVE RANDALL SYNDER

Direct Examination by

Cross-Examination by

Redirect Examination

Mr

Mr.

by

. Long

Green

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Mr. Long 73

EXHIBITS

STATE'S EXHIBITS

NO. DESCRIPTION PAGE

IDENTfFfED

PAGE

MARKED

1-115

LL6

LL7 -L26

Transcript 10

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APPEARANCES

On Behalf of the State:

PfNAL COUNTY ATTORNEY'S OFFICE

By: Matthew Long, Deputy County Attorney

Bureau Chief

Major Offenders Bureau

Thomas Kohler, Deputy County Attorney

P. O. Box 881

Florence, At:-zorta 851-32

On Behalf of the Defendant:

COOPER & RUETER , L. L. P.

By: Paul Green

P. O. Box 1-5005

Casa Grande, Arizorta 851-30-5005

ALSO PRESENT:

Detective Randy Snyder, Plaintiff's Case Agent Patrick Cote, D€fense Investigator

Sabine Michael, Court Interpreter

Danira Marinez, Court InterpreLer Laura Anderson, Court Interpreter

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Florence, Arizona

September 30, 20:-.3

8:48 a.m.

(Marked for identification State's

Exhibits Nos. 1 through 1,26 bef ore the proceedings

began. )

REPORTER'S TRANSCRIPT OF PROCEEDfNGS

(The proceedings began out.side the presence

of the jury and with the presence of Sabine Michae1,

court interpreter. )

THE COURT: CR201103026, State versus

Fernando segoviano Almanza. This is the date and time

set for trial to begin. Actua11y, it's about 15 minutes

before the time.

The attorneys are here. Mr. Long i_s

present, Mr. Kohler for the State; Mr. Green is present

with his client, who is present, along with their

investigator and, I assume, the investi-gator f or the

State.

MR. LONG: Yes, sir.

THE COURT: Let me this is a ,Judge Olson

case. ,rudge olson asked me actually last week to cover

the tria1, and I don't think f committed to doing it

until wednesday or Thursday so a minute entry wasn't

sent out.. And f'm guessing that this is actually the

first time you knew for sure that r was covering the

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 5 of 106
okay.

MR. LONG: Right. And t.he only one that

I'm aware of is the voluntariness

THE COURT: No.

MR. LONG: -- motion to suppress.

THE COURT: There's a motion to suppress

evidence. ft's Mr. Huggins' kind of suppresseverything-because - the-po 1 i ce- did- everything-wrong

motion.

MR. LONG: Sure.

THE COURT: Okay. Mr. Huggins I've seen

that motion before.

In any event, but the State did file a

response to it. So at one time or another somebody was

aware of it, but there are no replies.

And f take it, Mr. Green, you didn't intend

to file replies?

MR. GREEN: Your Honor, I did not file a

rep1y, and I guess I don't intend to at this point.

THE COURT: Okay. We11, once the area

once the issue of voluntariness has been raised, the

Court is obligated to make a ruling on it. They are

presumptively any statement is involuntary. So f

suspect before we start the jury trial we're going to

have to conduct some form of evidentiary hearing on the

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two on the issue.

And the way f read it is they're basically

an intertwined issue, so we can do it in one hearing.

Do you have any problem with that,

Mr. Long?

MR. LONG : No, ,Judge .

THE COURT: Mr. Green?

MR. GREEN: No, Your Honor.

However, ds part of the evidentiary

hearirg, I will be requesting that the Court review the

recording and the transcript of the interview.

THE COURT: Okay. The State has attached a

copy of the transcript to its response/ and I have

reviewed that. T obviously haven't heard the recording.

fs there some difference between the recording and the

transcript ?

MR. GREEN: There is, Your Honor. And I

don't know if the Court has seen, but there are two

pieces to this transcript. There's the transcript that

was done by Mr.

MR. COTE: Garr.

MR. GREEN: -- Garr, and then there was an

additional transcript that was done by the interpreLers'

office as to those sections that are in Spanish on the

recording.

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THE COURT: You know, now that f look at

i-t, inside the f i1e there is an envelope that has a CD

or a disk in it. ft's not marked in any wdy, but it was

attached to the State's response.

Okay. Here's the English interview. And

you say the interpreters' office separately did a

translation?

MR. GREEN: And Your Honor, that is the

interview, I believe at 1east, that's what mine is

the interview with Fernando Almanza.

THE COURT: Right.

MR. GREEN: And Your Honor, the reason I

ask that is because it's my opinion that in listening to

the interview, it's much more clear as to exactly what

my client understood and didn't understand than it is

from the language that's in the paper transcript.

And it's our argument, your Honor, that

most of the interview was done in English, and my

client, while he professes to speak English, does not

speak English we11. He also does not read English and

he does not read Spanish.

THE COURT: f can't te1I from the

transcript but how long is the interview?

MR . LONG : Pre t ty l ong , .Tudge .

THE COURT: An hour?

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want to say.

THE COURT

get any jury selection

least until probably af

telling me?

MR. GREEN

Honor, but I do request

as to the issue of volu

that.

THE COURT

MR. LONG:

obj ection to the Court

actual interview.

THE COURT

that I have to run thro

MR. LONG:

audio, Judge, so it's p

THE COURT

tape a CD deck?

MR. LONG:

THE COURT

to do it. Want me to d

MR. GREEN

be

MR. LONG: An hour, hour and 20 minutes I

So obviously we're not going to

done , if that's what f do, dt

ter lunch. Is that what you're

I believe that's true, Your

I believe that it's important

ntariness that the Court hear

Okay. Do you have any input?

I certainly don't have an

reading the or watching the

fs it an audio or is it one

ugh the computer?

Judge, it's audio and just

retty easy to run through.

I can run it on a CD, on a

Yes, sir.

Okay. Then I quess I'11 have

o that before I hear testimony?

Yes. I believe that would

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THE COURT: You think that might be

helpf u1?

MR. GREEN: It would be, your Honor, y€s.

MR. LONG: And I think it might be

dispositive to the state's issues, so r if the court

is going to do that, I guess I'd withhold offering

testimony unless the Court determined that it was

necessary after listening to it.

THE COURT: Okay. We11, the first thing we

need to do, then, is notify the Jury Commissioner to

te11 the jurors to all go away and come back after

lunch, which T suspect means we'11 lose some of them

anyway. And I don't think what you want me to do is

impanel a jury before f've made that decision. r think

that might not be appropriate. so we'11 terl the Jury

Commissioner that as soon as f take a break.

What I have done as kind of a time-saver

Todd, if you wou1d, please, for each of you, one to each

of the attorneys there is a copy of what r would be

using for preliminary instructions once we seat a jury.

You know, there are things I,d normally do a couple

weeks before now that aren,t done because I -- this

wasn't my case. r did not see from either one of you

proposed jury instructions.

MR. KOHLER: Your Honor, the State has

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those prepared. There's one more that I,11 be adding,

but I will be providing a copy of that to the Court

today.

THE COURT: Okay. Generally f would have

wanted them this morning if not the end of last week.

I did not also Todd, if you would

again I also did not see a final witness 1ist, which

normally r would have told the attorneys to deliver to

me the Friday before tria1.

f do have from the file we1l, what

you're now getting is a draft of the final instructions

just in general, from the Court just in general.

They're not definitive.

But I did get from the discovery from the

state a potential witness 1ist. There was an initial

disclosure in December of last year I'm sorry.

December of my note says ,Ll 

, 201,1,, and. then a

supplement April of last year and January of this year.

Let me read those and you can correct me

MR. LONG : Judge, I have a f inal wi t.ness

1ist, a pared-down 1ist, I believe

THE COURT: Good.

MR. LONG: -- if the Court would 1ike.

THE COURT: Oh, yeah.

MR. LONG: f do have some strike- throug,hs,

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 11 of 106
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which are not antj-cipated but certainly potential

wi tnesses .

THE COURT: We11, then I,11 need to read

them to the jury.

fnteresting. Potentially patrick Gard from

your office?

MR. LONG: Yes, sir. As well as Nicole

Severson.

THE COURT: Severson.

MR. LONG: Severson.

THE COURT: You know, I'fll not sure that

calling a member of your office might not create a

conflict for prosecution purposes, especially somebody

t.hat theoretically I believe you supervi_se, don't you?

MR. LONG: No, sir.

THE COURT: Oh, you don't? Okay.

Interesting. We11, 1et , s take a 1ook.

Did you get a copy of this?

MR. GREEN: I do not have a copy of that.

THE COURT: Let me read the names and tel1

me if you have it.

And I take it the AW in the indictment is

Ada Wilhelmiz

MR. LONG: Yes, ,Judge .

THE COURT: She was 4 at the time of the

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inc ident ?

MR. LONG: Yes, sir.

THE COURT: f have Carli Moncher, Ada

Wilhe1mi, potential witness Kathy Bodwe11.

What I need when I talk to the jury is

general locations. Now, Ada is, of course, the victim,

so you don't have to give it on her.

Who is Carli Moncher?

MR. LONG: She's from Flagstaff, Judge.

THE COURT: Flag? Okay. Kathy Bodwell?

MR. LONG

THE COURT

MR. LONG:

THE COURT

She's from Tucson.

Kathryn Quinn?

She's the victim's mother.

Oh, which would be the

representative, so I don't need to do that.

'Jack?

MR. LONG: She's the victim's brother he

is the victim's brother.

THE COURT: Minor?

MR. LONG: Yes, and resides with the mother

and the victim.

THE COURT: Okay. Deputy Pecora?

MR. LONG: He's with t.he Pinal County

Sheriff's Office.

THE COURT: PCSO?

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MR. LONG: PCSO.

THE COURT: Detective Snyder. PCSO?

MR. LONG: Yes, sir.

THE COURT: John Boggs.

MR. LONG : ,John Boggs i s f rom the Superior

area.

THE COURT: f think I recognize his name.

Patrick Gard, obviously from the County

Attorney' s Office.

Nicole Severson, private attorney. And she

is out of Casa Grande, is she?

MR. GREEN

THE COURT

MR. GREEN

Maricopa County, but I

Maricopa.

THE COURT

MR. GREEN

but f'm not positive.

Southeast Va1ley somewh

THE COURT

MR. LONG:

Public Safety.

THE COURT

Peggy Toporek?

No, Your Honor. She is in

Maricopa?

f want to sdy, yeah, she's in

want to flo, she' s moved f rom

Oh, okay.

I believe she's in Gilbert now,

It's Gilbert and Chandler.

ere.

Okay. Nikki Petrin?

She's with the Department of

DPS, oh, that's right. So is

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MR. LONG:

THE COURT

MR. LONG:

THE COURT

MR. LONG:

THE COURT

MR. LONG:

A SANE nurse.

THE COURT

MR. LONG:

Nurse Examiner, out of

with.

That's correct.

Dr. ,fu1ie K1ein. Tucson?

Yeah, Tucson Medical Center.

,Jackie Hess ?

ChildHelp, Phoenix.

Sharon Welch?

And she is ouL of Tucson. She's

A what nurse?

A SANE nurse, Sexual Assault

I forget which agency she,s

THE COURT: Let me see. The original was

listed as Southern Arizona something.

MR. LONG: That's correct, .Tudge. It,s an

advocacy center in Tucson.

THE COURT

listed, correct?

And that's all the State has

MR. LONG : Yes, sir. We have potential

t witnesses, but the State

ing any additional witnesses.

rebuttal and impeachmen

doesn't anticipate call

THE COURT: Are there any other potential

rebuttal witnesses other than what you have here?

MR. LONG: We do have, I suppose we should

add Sergeant Louie Vargas.

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THE COURT

MR. LONG:

DETECTTVE

MR. LONG:

THE COURT

Luis or Louie? Luis?

DETECTIVE

THE COURT

MR. LONG:

Deputy Perry, PCSO.

Sergeant.

He's with

SNYDER: Pinal County.

PCSO.

Okay, wait a minute. Is it

SNYDER: Luis.

PCSO, okay.

And I guess we should include

THE COURT Perry?

MR. LONG: Perry, P-e-r-r-y, PCSO, and

Detective Sanchez.

And what's his first name?

DETECTIVE SNYDER: J.D.

MR. LONG: ,J. D. Sanchez , PCSo .

THE COURT: They're all PCSO, okay.

Now, Mr. Green, any witnesses other than

those listed you want to add?

MR. GREEN: Your Honor, the only witness f

have would be Patrick Cote. I know the State is

challenging that. And again, the only evidence he'11

provide is foundation for photographs.

THE COURT: Yeah. I did not see in there,

and perhaps you can correct ffie, Mr. Green, that either

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Mr. Huggins or you filed a notice of defenses and list

of witnesses.

MR. GREEN: Your Honor, I filed and this

is the State' s arg,ument, your Honor. f f iled that, f

believe, Friday. Havi-ng gone through the f i1e having

received it from Mr. Huggins, r didn't realize that he

hadn't done it, and I never did.

So the State has a reasonable argument T

would sdy, Your Honor, for late disclosure,. however, the

only thing di-sclosed in that were some photographs and

a and Mr. Cote as a wi-tness.

MR. LONG: And I did file a motion I

drafted a motion on Friday r wasn't able to get it

filed until this morning that r have for the court,

and that is it's an issue, not just the timeliness of

it, but there's some substance. This is the basis for

my motion. But r guess it's effectively a motion in

l imine .

THE COURT: On a defense or a witness?

MR. LONG: On a witness and some and a

defense, I suppose.

THE COURT: fs that Mr. Cote, you're trying

to keep him from testifying?

MR. LONG: To testify as to certain things,

yes.

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THE COURT: The photographs that Mr. Green

is talking about or other issues?

MR. LONG: Some of the photographs t,hat

are that he's talking about.

THE COURT: And they're photographs, I take

it, that weren't disclosed until Friday? Or

MR. LONG: Correct.

And I guess more significantly, there was a

corresponding report that explained the photos that was

disclosed at 3:00

THE COURT: On Friday?

MR. LONG: -- p.m. on Friday. So the

photos and the 15.1, along with Mr. Cote's CV, was

disclosed was hand-delivered to my office in the

morning on Friday.

I immediately reached out to Mr. Cote to

ask for an interview so r could see what he would be

testifying to. Prior to that interview r asked him if

he has any reports, to please provide them. That was

then emailed to me four minutes before the interview was

to begin right at 3 o'c1ock.

That report provides some real insight into

what the defense intends to use the photos for, which

the State submits would be an improper purpose, or at

least they lack the foundation to be able t,o do what

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they want to do.

THE COURT

limine drafted?

MR. LONG:

THE COURT

MR. LONG:

The original was filed

provided to Mr. Green.

THE COURT

MR. LONG:

THE COURT

of the are you going

MR. GREEN

received this just this

can certainly file one

THE COURT

trial was four to five

from originally, accord

to seven days, and that

because of your schedul

Thursday morning; is th

lose

Okay. Do you have a motion in

J- do.

Is that the original or a copy?

That is a copy, conformed copy.

in this morning, a copy was

So it's downstairs?

Yes, sir.

Okay. Okay, I guess it's one

to file a written response?

I have not got one I just

morning myself, Your Honor, so I

by tomorrow.

My understanding was that this

days, and that was paring it down

ing to ,Judge 01son, pro j ected six

'Judge Ol son has a1lowed, I gues s

e, the jury not to appear

at correct? So we're going to

MR. GREEN: Your Honor okay, that may

be, Your Honor. I didn't get that f rom the Judge's

order, but or notice, but the I did have a

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conflict, trial on the 3rd and the 4th

THE COURT

MR. GREEN

forward. f have since

have a conflict. So we

THE COURT

MR. GREEN

Thursday, y€s, sir.

THE COURT

MR. GREEN

events.

THE COURT

minute entry that indic

trial on Thursday morni

arrangements with Judge

MR. GREEN

THE COURT

delay the tria1. That'

MR. GREEN

Honor.

THE COURT

MR. GREEN

the Court know prior.

THE COURT

if I send the jury home

Right.

that was going to be brought

addressed that, so I no longer

can certainly run

So we can do Thursday?

We can do the whole day

Okay.

f have no other interceding

Okay. But yeah, he did a

ated we would not have a jury

ng because he had made some

White to

Righr.

get a jury selected and

s no longer an issue?

That's no longer an issue, your

Okay.

And I apologize for not letting

Wel1, 1et me ask the attorneys,

now and we start tomorrow

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morni-ng, we resolve all these issues today, can we get

done by Friday?

MR. LONG: No, sir.

THE COURT: ft's more than four days?

MR. LONG: I had four days assuming

starting today. r was hopeful when r l_earned that. your

Honor was going to be here that that would expedite the

jury selection process having been in front of your

Honor numerous times i-n tria1, those tend to go pretty

quickly even in these types of cases and that we

could that if we were going through all today

through, that there would be a possibility I was

accounting for Mr. Green,s

THE COURT: Half day?

MR. LONG: -- half day.

Mr. Detective Snyder also has a subpoena

in a dependency matter.

DETECTfVE SNYDER: f haven,t received it, f

just got notification.

MR. LONG: He's got notification in an

anticipated dependency matter. f am simply uneducated

on which would take precedence and if we would have t.o

defer to the dependency on that.

THE COURT: Dependency takes priority. But

as a witness he can be scheduled by the attorneys and

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the 'Judge, so it does not or minimally interferes with

us. But as far as between the two cases, dependency

t,akes priority.

MR. LONG: And that was my belief, and so I

was operating on that. The i-ssue is is, depending on

what point of the trial it is, as a case agent and given

what he did, specifically the interviews, he is critical

to being present to certain aspects of the

cross-examination and

THE COURT: Oh, you bet.

MR. LONG: I'm sorry?

THE COURT: No, I said ,,you bet. "

MR. LONG: So that was the only other

concern as to that schedule.

The other thing is Sharon Welch is out of

town until Monday, so what r anticipated is that Monday

would be the final day that we could finish with

Ms. welch. And r believe that's the proper schedule.

Even if we were to go through these witnesses, that that

would take us into Monday.

THE COURT: Okay. That means I have to

change my Monday plans because of your witness's

schedule.

MR. LONG: And when scheduling witnesses

and starting to do this, it was under the prior schedule

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of there was a discussion of going dark all day

Thursday when we were initially scheduling this.

THE COURT: We11, I'm just thinking. So we

know we're going into next week, so we can get your

witnesses get your witnesses done. Most 1ike1y it

would take this morning, dt 1east, to resolve the issues

that were just raised.

We1l, we know we have at least four days

this week we11, and actually, again, just thinking,

Wednesday morning is ,Judge Georgini's mother's services,

which I was not going to go to because I didn't want to

lose another half day.

The reason I have the podium f'm going

to give you guys my thinking. The reason I have the

podium set up here is, rather than do my normal

strike-and-rep1ace, which could be tedious, f was going

to get two things out of the way to begin with. One was

the nature of the case, which is where we normally lose

a percentage of prospective jurors just because of the

nature of the case, and the other was length of tria1.

My thought was that we pare the group down before we

call up our pane1.

I do intend to call up 27; I do intend to

seat 15 so we have three alternates. That will work

with the weekend in between, and I guess it will work if

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we eliminate those who can't be here for a multi-ple-week

tria1. Although it's only one day, you,ve got to call

it a multi-week tria1. okay. r think jurors would be

more happy if, rather than we do five days, if we do six

so they can qualify for long trials.

Okay, 1et me think about it.

MR. LONG: And so that would be the

hardship we would get rid of the hardship people

through the podium before we r think that,s what your

Honor did at the last tria1.

THE COURT: Yeah.

MR. LONG: And I think it worked. It was

very effective.

THE COURT: There are certain ones where it

pays to do that ahead of time instead of go through the

strike-and-rep1ace, which i s very ted.ious . yeah, i t

would be the hardships and it would be nature of the

case that we'd get rid of at the podium before we draw

27 names and begin the strike-and-rep1ace.

Okay. And the interview is at least an

hour ?

MR. LONG: Yes, sir. ft , s longer than

that.

THE COURT: We11, I,ve got a choice, but

1et's do that, then. Let's plan on starting again with

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you guys here in the courtroom as soon as I get done

listening to the interview and reading the transcript

along with the interview. So when I tel1 you folks to

be back here, be back at 10:30, but if I'm not done by

then, you're just going to have to wait.

I'11 have the lTury Commissioner te11 the

prospective jurors that we'11 start at 1:30, and at

least today we'11 get the get a panel seated if we

don't get any further.

MR. LONG: Judge, I have two other motions

in limine that r would like to address ora11y which may

be or r'11 do them whenever the court would like to

do those. rt may be more appropriate af ter we d.ea1 with

this one.

But then the other issue is that due to my

status conference on Friday with your Honor that we

attended in the Thompson matter, I was unable to

complete my interview with patrick Cote, and so I just

would like an opportunity at some point this week prior

to testimony to continue the interview.

THE COURT: I'm solving that. When we

when f leave here to listen to the interview, you finish

the interwiew.

MR. LONG: We11, that raises an issue

regarding my motion, because one of the issues that were

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raised is that Mr. Cote refused to answer certain

questions that provided the basis for his opinion that

he offered in his report, and so there needs to be

some maybe some clarification on that.

So I would like to provide the Court with

his report, and that, with my motion, kind of addresses

some of the issues r think the court will understand. r

asked specifically what he used or what factors went

into him forming an opinion, provided the basis for his

opinion in his report, and he said that,s work product.

And I disagree that the basis for you offering an

opinion that you disclosed can be work product.

I didn't ask him what is there something

that somebody told Mr. Green or is there a particular

strategy or something. It was specifically as to his

knowledge and what he what he learned that caused him

to author this report. And he refused that.

THE COURT: Okay. So you think that issue

has to be resolved before you comprete your interview of

Mr. Cote, Tiqht?

MR. LONG: Yes, sir.

THE COURT: Okay.

MR. LONG: Additionally

THE COURT: We11, wait. I'm going to do

one at a time -

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MR. GREEN: Okay. Your Honor, ds to the

interview, Mr. Cote was asked whether he had notes and

papers and information that he had used in making his

opinion. Those notes and papers are in fact, iL is our

opinion, are work product; are attorney/cTient privilege

as wel1, because some of the bases for Mr. Cote's

decisions were information that we received from my

client.

That information is not disclosable as

attorney/client privilege, and Mr. Cote, being an

extension of myself as working for my office, is covered

by my privilege with my client. So I believe that the

most that we can te11 Mr. Long is that he based his

opinj-on on information that he received from my client.

THE COURT: We11, in fact that would be the

answer, and it should be the answer if that,s the

answer. But otherwise, in order to render an opinion in

front of a jury, he's going to have to give be able

to answer and will be ordered to answer the question

upon what do you base your opinion. Examination and

information received from our client, ML. Almanza,

whatever the answer is, but it has to be given. Okay?

And then it leads you to argue the

reliability and weight to be given to evidence that's

based on what the Defendant says.

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MR. LONG: Right, but I think I,m entitled

to know what information that is

THE COURT: Yeah

MR. LONG: -- from Mr. Cote. I mean,

Mr. Cote, it can't be a sword and a shield where he,s

somehow an arm only of Mr. Green and yet a factual

witness. He was being offered as a material factual

witness to suggest that ilm not able to inquire for

in order to vet, impeach, or just know.

Rule 15 certainly presumes the disclosure

of what the basis for a witness,s opinion is. I mean,

it. would rea11y be akin to the analysis should be

whether or not the state can do the same thing. r mean,

there are certainly some things that may be work product

but other things that are not.

A11 right. Focus on Rule 1,5.2, that is

authori ty .

THE COURT: What are you looking at?

MR. LONG: 15.2(f), Scope of Disclosure.

THE COURT: M'hm.

MR. LONG: Pertains to extends to

"material and information within the possession or

control of the defendant, the defendant's attorneys,

staff, agents, investigators or any other persons who

have participated in the investigation or evaluation of

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the case and who are under the defendant's direction or

control. "

THE COURT: We1l, what would you for an

example, not what the answer might be but would you

expect him to be required to answer, we11, it's based on

my client's or our client's statement that j_t was here

he took off her head?

MR. LONG: Sure, ot he observed her

crawling underneath a fence.

THE COURT: Right.

MR. LONG: f mean, he has some basis to his

own that that's the that that's the basis for the

opinion. Whatever the answer is, the State should

certainly be entitled to know that in order to vet it.

And otherwise, it's it rea1ly is trial by ambush.

THE COURT: Yeah, sort of.

I'm looking for the rules of evidence on

expert opinions. Okay, you got there you go.

MR. LONG: And f'd just point out, any

issues of waiver have certainly been or I'm sorry

of privilege have certainly been waived by virtue of

disclosing this opinion.

THE COURT: Yeah . 7 02, Testimony by

Experts. Let's see what that says.

Bases, 703. Disclosing Facts or Data.

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Rule 705, "An expert may state an opinion

and give the reasons for it without testifying to

underlying facts or data, but the expert may be required

to disclose those f acts or data on cross-examination. ,,

And then you have whether or not the work product issue

would protect some of that.

And Mr. Long, your argument is logic

1ogica1. I'm just thinking. yeah, it is.

To the extent you want and f,11 make a

ruling. To the extent you want Mr. cote to render an

opinion, the facts that support that opinion are subject

to disclosure, even if it is based on information

provided from your client to you to Mr. cote or directly

from your client to Mr. Cote.

So in other words, if you want to use that

opinion, he has to say why he arrived at that opinion

and give the bases for it, okay, which means if you

don't want to use the opinion, he doesn't have to

disclose that. Simple enough.

MR. GREEN: Fa j-r enough, your Honor .

THE COURT: Okay. What else did you want

to resolve before I can get started on my part?

MR. LONG: The only other issue, or two

other issues, is there were two interviews that were not

able to be completed. That is the interview of peggy

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Toporek and the interview of Dr. Klein that Mr. Green

was not able to complete.

THE COURT: Okay.

MR. LONG: To provide just Mr. Green had

not asked for interviews. He did not take any efforts

in setting up those interviews himself.

The State over the last month has

proactively and on its own set up interviews and

coordinated those with Mr. Green's offices or office.

And this is these are two of the interviews that just

were not able to be completed. we've said that we will

also offer them available prior to their

THE COURT: f'm sorry

MR. LONG: -- testifying.

THE COURT: -- but it can be interpreted

differently. were they started but not completed or

simply not arranged and done?

MR. LONG: They were not arranged and done.

There was

THE COURT: Okay.

MR. LONG: Scheduling issues between both

Mr. Green and the doctor and Ms. Toporek were not

consistent.

THE COURT: There you go, they weren't

requested and they weren't done. And it,s just a 1ittle

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different than saying they weren't completed.

THE COURT

was c1ear.

Okay. So

make sure that's not an

MR. LONG :

THE COURT

MR. GREEN

that interviews from ot

the topics that those t

to.

THE COURT

straightforward.

MR. GREEN

in another case on rela

THE COURT

MR. GREEN

believe that f need to

need to delay anything

THE COURT

adequately present your

witnesses without condu

MR. GREEN

THE COURT

MR. LONG: Fair enough.

I just wanted to make sure it

he's not done it; you want to

issue he raises?

Yes, sir.

Okay. Mr. Green?

Your Honor, dS to f believe

her witnesses pretty much covered

wo are going to be testifying as

Ms. Toporek, yeah. Pretty

I have interviewed Ms. Toporek

ted information.

So you know her background?

So yes, and so I don't

interview them. I don't think we

for that.

And you believe you can

client's case and question those

cting such?

I do, Your Honor.

Okay, good.

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MR. LONG: And Dr. Klein did aut.hor or

did was part of some medical records and reports that

were disclosed, and Mr. Green does have those.

THE COURT: fs Dr. Klein the one that at

least reportedly f ound the physi-ca1 in j ury?

MR. LONG: She is one of three medical

personnel that did at least viewed her physically or

viewed the colposcope pictures.

THE COURT: Yeah, and f,m sure that,s a

vital part of your presentation.

MR. LONG: It is, ,Judge. But those

records, which include statements by the witness and

medical findings and opinions, were disclosed. r just

wanted to make sure that wasn't an issueThen the only other thing, ,Judqe, is we

need a 609 hearing very quickly regarding Mr. Boggs and

the Defendant.

THE COURT: Yeah, we probably ought to do

that real quickly.

. And obviously, I recognize Mr. Boggs' name.

r may even have had some dealings with him. r suspect r

did have dealings with him in the past, dlthough I

didn't look for it.

Okay. You want to te11 me what his record

shows that you've disclosed to Mr. Green?

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MR. LONG: Yes, sir.

Boggs. Do you have it in there?

MR. KOHLER: Not his criminal history.

MR. LONG: 609 motion we filed on Boggs?

THE COURT: Criminal history.

DETECTIVE SNYDER: Probably somewhere.

MR. LONG: Yeah. In our 609 motion we

THE COURT: Do you remember when it was

fi1ed, and I'11 look it up.

MR. LONG: It was I don't, 'Judge. I'm

sorry. I was just looking at it last night.

THE COURT: Maybe it's in file 1.

DETECTIVE SNYDER: 609. Here we go.

MR. LONG: Judge, it was dated June 13th.

THE COURT: Of this year?

MR. LONG z 20L2.

THE COURT: Okay.

Motion for disclosure of information. That

was when Mr. Huggins was on the case. Yeah, there it

is. Okay. There's Mr. Boggs, and page 2 has a list of

convictions.

MR. LONG: I don't believe this includes

the final conviction or the most recent conviction that

was in 20L2.

THE COURT: ft doesn' t. Do you have a

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2001", a 2004, a 2003, and 1"987 ?

MR. LONG :

THE COURT

f saw the allusion or t

and perhaps terms were

MR. LONG:

agreement or any it

connection to this case

in that case.

MR. GREEN

accurate. There is a t

the plea agreement that

case.

That's correct.

So he had another one in 2012.

he reference to a plea bargain

disclosed or something.

There was no testimonial

was not tied in. There was no

. He did, however, plead guilty

Your Honor, that's not quite

estimonial agreement as part of

Mr. Boggs signed in the last

THE COURT

to you? Do you have a

Oh. Wel1, it' s been disclosed

copy of what it was?

MR. GREEN I do have a copy, y€s, your

Honor.

THE COURT: Okay. So the issue is what can

be used to impeach Mr. Boggs when he testifies? rs that,

what we're talking about , 609?

MR. LONG : Yes, si-r.

THE COURT: Okay. We1I, you obviously

again, you obviously have the new one, which is

certainly t.ime1y. The next one prior to that in time

was the 2004, Drug paraphernalia? Is that right?

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MR. LONG: Yes, sir.

THE COURT: Which would be a Class 6, and

that was Gila County.

Prior to that, 2003 Trafficking, second

degree, would be, what, a Class 3, and prior to that,

2001 Ag Assault on Law Enforcement. That one in 2001-

was maybe a Class 5.

MR. LONG: Back then I think it was a

Class 6 , ,Judge.

THE COURT: Could've been a 6, yeah.

MR. LONG: It was changed fairly recently.

THE COURT: Yeah, depending on how they

yeah, it could have been a 6.

We11, 1et's see what 609 says to me. f,imit

after ten years. Okay. So we in general have a

ten-year limit after either the date of conviction or

date of release on the conviction, and so we have 2004,

2003, 2012 are obviously admissible under that ru1e.

On the 2001,, do we know if he served any

time in prison as a result?

MR. LONG: Don't, Your Honor, although

there is certainly an argument that time in custody

would tol1 for 609 purposes in the same manner it would

for allegeability purposes, and I don't I don't take

issue with that analysis.

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THE COURT: Yeah, I don't think no.

Okay, you made a record, I overruled you, I'm not going

to do it that way. But you get to use one, two, three,

2003, 2004, and 20L2 specifically.

And you know my standard rule on the

impeachment is you can ask about the category of it

being a felony, where the conviction was essentially,

you know, Gila County, but not again, the saniL:-z:-ng,

not what the conviction was for. Okay?

MR. LONG: That's our request.

THE COURT: The exception might be on the

201-2. If the terms of the plea agreement become

relevant for impeachment purposes, then the full plea

agreement is admissible because the jury will need. to

assess it, the value itself , which means they'd discover

what the plea was for, what the offense was, the date

and time, et cetera. So impeachment, do you want me to

answer ?

f'11 find, definitely find, obviously, the

prejudicial or the probative value outweighs the

prejudicial effect of using the prior felony convictions

for impeachment purposes as to Mr. Boggs and limit it to

t.he use of t.he ones I just mentioned, 2003, 2004, and

20L2 .

f'11 further find that if there is a

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testimonial aspect to the 20!2 plea agreement which

relates to this case in some manner, that may be

admissible, but the foundation, €t cetera, will have to

be laid at the time prior to its use. Okay?

The others, the \9- or the 200L and t.he

L987 are not admissible for impeachment purposes. Might

have been usable for his prior convictions, but not for

impeachment.

Okay, what else?

MR. LONG: And then the Defendant has

a two aggravated DUI

and one from 2002 an

a separate incident in

THE COURT

MR. LONG:

prison on at least that

THE COURT

MR. LONG :

THE COURT

MR. LONG:

THE COURT

convictions one is from ,98

d a criminal damage conviction on

2002.

Okay.

And then he served he served

subsequent DUI.

The 2002 ag DUI?

Yes, sir.

Was it more than a year?

Yes, sir.

So we've already brought it to

20L3, okay.

Do you have anything there, Mr. Green, 1rou

want to say about it? Do you disagree with the time or

the comment?

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MR. GREEN: ff f may have just a moment,

Your Honor.

THE COURT: Go ahead.

Todd, would you 1et the Jury

Commissioner I'm sorry. While we're doing this,

would you 1et the ,Jury Commissioner know to tell the

jury that the attorneys and r have matters that have to

be resolved, we'11 start jury selection at 1:30.

THE BAILTFF: Okay.

THE COURT: So they're take a break, but

none of them are released at this time.

THE BAILIFF: Okay.

THE COURT: Mr. Green.

MR. GREEN

history on my client is

THE COURT

for impeachment, sir?

MR. LONG:

convj-cted of a felony.

THE COURT

MR. LONG:

very, very redactive.

Your Honor, the criminal

accurate as f ar as I can t,ell.

And you would like to use what

,-Tust to say that he was

As of the 2002? Or just

That's fine. I intend to be

THE COURT: But are you you,re asking

only for a felony, the ag DUI that falls within the

proper parameters?

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MR. LONG: There are two separate felony

convictions, one for criminal damage and one for ag DUr.

They are separate offenses, they are separate dates of

offense.

THE COURT: Did he do ti-me on both?

MR. LONG: He was sentenced to prison.

THE COURT: I knew he would be on the ag

DUT.

MR. LONG: One year f,m sorry. 2.5

years on the criminal damage as well , 2.5 years on the

ag DUr. So they would both, r believe, be appropriately

for impeach submitted for impeachment purposes.

THE COURT Yeah. And you don't disagree

with that

MR. GREEN

THE COURT

MR. GREEN

I don't, Your Honor.

the timing anyway?

No.

THE COURT: Okay. f,11 find once again as

to Mr. Almanza that the probative value outweighs the

prejudicial effect, that the fact of conviction in 2002

on two separate felonies may be used for impeachment

without mentioning the nature of the felony, but the

date and the fact that they were each a felony

conviction is admissible for impeachment, if he takes

the stand.

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MR. LONG: Yes, sir.

THE COURT: Okay.

MR. LONG: I have one more, and it's

related to these issues.

THE COURT: Oh, go ahead.

MR. LONG: The allegation is that. the

Def endant admitted to certaj-n things or gave statements

to Mr. Boggs while in jail, and r want to clartfy, f do

intend to get into that fact. That fact, f submit, is

critical to understanding and is not unduly prejudicial.

So I just want a clear ruling that the

State and defense can get into the fact that the

Defendant was incarcerated for a period of time when he

had conduct or contact with Mr. Boggs.

THE COURT

you're telling ffi€, Mr.

f 'm presumi-ng, based on what

Boggs is going to testify?

Yes, sir.

And he is going to relate that

he was a cellmate and he said

MR. LONG:

THE COURT

we were in custody and

such and such. Correct

MR. LONG:

THE COURT

for the record?

Precisely.

Okay. You want to say anything

MR. GREEN Your Honor we1l, f can

object, Your Honor, in that it shows that my client was

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in custody.

THE COURT: Yeah.

MR. GREEN: f already anticipate your

ruling, however.

THE COURT: You know, never anticipate.

Always be hopeful.

It's obvious that that portion, without

reference to specifically how long either was in

custody, at least for the purpose of impeachment, would

be admissible, so your objection to using mentioning

that he was in custody when he gave the statements is

overruled. Okay.

It at least gives the background and

explanation for the scene, for the delivery, and

certainly it'11 be important to you when you try to

impeach or want to impeach Mr. Boggs as to why he

contacted the 1aw enforcement and 1et them know about

the statement. okay? so r suspect it's rea11y as

important to you as it is to the state to set the scene

for the delivery of the statement.

MR. GREEN: yes, your Honor.

THE COURT: Okay. What else?

MR. LONG: I just have one other motion,

oral motion in limine, but r d.on't know when the court

wants to

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do we move

THE COURT

on to one mo

MR. LONG:

THE COURT

MR. LONG:

allegations that it int

issues regarding the vi

supposedly had a sexual

boy and/ or took her chi

they intend to either o

her regarding that info

to preclude those quest

a basis to ask them and

THE COURT

MR. GREEN

in that questioning wou

had a motive in order t

my client; as a potenti

young Ada was coached,

there was animosity, a

two coworkers during th

ranch, and that the bas

those bad feelings were

mother on issues of par

conduct on her behalf w

When

re?

No.

we're done with this one

Okay. Te1l me what it is.

Specifically defense has raised

ends to get into certain personal

ctim' s mother, that is, t,hat she

relationship with a 16-year-o1d

ldren to drug houses and that

ffer that in opening or question

rmation, and the State is seeking

ions. The defense does not, have

it is not for a proper purpose.

Okay. Mr. Green?

Your Honor, the issue at hand

td be whether or not t.he mother

o bring these allegations against

al defense, Your Honor, that the

was told what to say; and that

tense relationship between these

e time that they were on the

is for that animosity and that

that my client had ca11ed the

enting, issues of inappropriate

ith a who was, I believe, a

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friend of his grandmother's. The young man, the

16-year-o1d young man, was a friend of his

grandmother's.

To that end, Your Honor, w€ have searched

and been unable to find the young man. we know sort of

where he is, but we have been unable to get in touch

with him to call him as a witness, so

THE COURT: The only information you have

is what your client has told you? No corroboration of

any kind?

MR. GREEN: No corroboration, no, your

Honor.

THE COURT: Okay, fltotion in .limine is

granted. If things change 1et me know and f'11

reconsider it, but no. you can ask about animosity, do

you have isn't it true that you and Mr. Almanza used

to argue at work about a number of things and you don't

like him, but ro, no details, no 16-year-old, rro drug

houses, no.

another one?

MR. GREEN

THE COURT

MR. LONG :

THE COURT

MR. GREEN

Okay.

Okay? What else? Is there not

That is it.

How about you?

Your Honor, f again, I don't

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 44 of 106
45

know when you want to deal with this, buL as far as t.he

testimony of Carli Moncher

THE COURT

MR. GREEN

a the State is ca11i

MR. LONG:

Dutton, Judge.

THE COURT

wi tnes s es

MR. LONG:

THE COURT

MR. LONG:

MR. GREEN

she has no information

witness

THE COURT

MR. GREEN

this case.

THE COURT

MR. GREEN

THE COURT

MR. GREEN

Remind rTre , Carli Moncher is?

Carli Moncher, Your Honor, is

ng her as a victimology expert.

She effectively replaces Wendy

Oh, it's one of your cold

Yes, sir.

you're going to be calling?

Yes.

As a cold witness, your Honor,

whatso- by definition, cold

Right.

she has no information about

No connection, rto inf ormation.

No connection.

Right.

The information that she's

provided is based on research that I believe is

questionable at best.

Your Honor, if the State wants to

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proceeds to wanting to call her as an expert, I would

request voir dire of the witness without the jury

present prior to her testimony to a11ow the Court to

make a determination whether or not the information

whether first of all, whether she is an expert;

second of all, whether the information that she is going

to provide to the Court is good science, Your Honor; and

second of all and third of all, whether it's relevant

to the matter at hand.

THE COURT: Okay. Three legitimate issues.

Mr. Long?

MR. LONG: Judge, Ms. Moncher testified in

this court, before this before Your Honor, oh the

very issue she's going to testify before. This issue

has been addressed, re-addressed, by not just this

jurisdiction but other jurisdictions.

We now have a draft a published

opinion I say "published. " It might not be published

yet but out of Division 1- that specifically addressed

cold experts and specifically victimology experts.

THE COURT: Yeah, I think there is an

opinion. o

MR. LONG: And stat.ing rea11y addressing

that it's appropriate testimony, and going further to

say that it does not even trigger Daubert. So a Daubert

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 46 of 106
analysis isn't even in the cards.

So that's I would rely orr, I gtuess,

precedence.

THE COURT: Okay. We1l, what we're go j_ng

to do is when it's time to call her, r'11 have the jury

out, he can ask her questions, just her background

questions, voir dire questions. f,11 make a ruling.

But in general, Mr. Long is correct. As

long as she qualifies she has previously she can

testify. You'11 have the ability during cross to

question her about its real meaning in this case, if

dfly, and she will obviously tell you, we11, f don,t know

the facts so r don't know. sometimes it's this wdy,

sometimes it's this way. Okay?

MR. LONG: We'd obviously just ask that

during voir dire Mr. Green not provide any facts to now

make her no longer a blind or a cold

THE COURT Cold witness or whatever we

cal l them?

MR. GREEN Your Honor, that would not be

be strictly on her

Quali fications .

her knowledge and

CV type of questions?

my intention. It would

THE COURT

MR. GREEN

qualifications and

THE COURT

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MR. GREEN: yes, correct.

THE COURT: Which is what they should be,

yeah.

We11, and the attorneys might know that

a make an objection, r'11 be happy to rule on it.

f'm somewhat aware of the ru1es.

Okay. Anything else? Oh, one more.

MR. LONG: Can f provide Mr. Cote's report

just to supplement my wri_tten motion?

THE COURT: Sure.

MR. LONG: Thanks.

THE COURT: Okay.

MR. GREEN: And your Honor, if f may, one

last and r did start to write this up and that is

that I' m requesting that any testimony regardi_ng prior

statements of Ada wilhelmi be stricken or be not allowed

as to as they are hearsdy, outside of any hearsay

exception.

Certainly f can make my objections at the

time that statements are raised, your Honor, but as a

general request, r believe that anything that anyone

any witness testifies to as to what Ms. wilhelmi said

would be inadmissible hearsay. Ms. wilhelmi is

avail-able as a wi-tness and she,s the best source of that

information.

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THE COURT: Want to say anything, Mr. Long?

MR. LONG: Just that we agree with the

general principles of the rules of evidence and their

exceptions.

THE COURT: Okay. Let's take a break, and

like I told you 20 minutes dgo, I was guessing 10:30,

now f 'm guessing I'11 see you all at 11:00.

(Recessed f rom 9:4L a.m. until 11:05 a.m.

The proceedings resumed outside the presence of the jury

and with the presence of Danira Marinez, court

interpreter. )

THE COURT: Let's have the record show

we're back on the record. Both attorneys for the State

are present, Mr. Green is present, the Defendant is

present. The jury has not yet been called. It is a

little bit after 11:00, and I had told the attorneys we

would try to start again at 11:00.

To clarify things, first, the disk that I

had that was in the file jammed in my CD player and

cannot be retrieved without taking it apart. Mr. Green

gave me one of his extra copies, which ran successfully

on my computer. So I did, along with the transcript,

listen to the recorded conversations from the beginning

through advisement of Miranda and about i-5 minutes into

the discussion, ffiy thought being that the issues that

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are before me rea11y are limited up to the time of the

Miranda, the beginning of the questioning.

But I did want to listen to some of the

following dialogue, just as Mr. Green had a11uded, Lo

confirm the extremely limited English ability of the

Def endant. So I a1so, as part of the transcri-pt,

revj-ewed the I think it,s a two-page, maybe

three-page translation, partial transcript, d.one by

apparently the interpreters' office that was submitted

with the State,s response.

So having done that, I think for the

purpose of going forward on the two motions to suppress,

we need to go ahead and get some testimony. f want you

all to know what I've done for background.

Mr. Long, are you ready to proceed?

MR. LONG: Yes, sir.

THE COURT

MR. GREEN

THE COURT

MR. LONG:

THE COURT

Are you, Mr. Green?

Yes, sir.

Mr. Long, who do you want to

put on?

Detective Randy Snyder.

Okay. Over here and get sworn

in first.

(The witness, Detective Randall Snyder,

was duly sworn by the clerk of the court, according to

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1aw. )

THE COURT: Thank you, sir.

While he's getting seated, Mr. Long, did

you get your interview completed with Mr. Cote?

MR. LONG: f have not completed that,

Judge.

THE COURT: So you're not finished with

Lhat ?

MR. LONG: With the interview, no.

THE COURT: Okay. Go ahead.

DETECTIVE RANDALIJ SNYDER,

ca11ed as a witness herein, having been first duly

sworn, w&s examined and testified as follows:

DIRECT EXAMINATION

BY MR. LONG:

O. Sir, would you state your name.

A. Randall Snyder.

O. Who do you work for?

A. Pinal County Sheriff's Office.

O. And were you one of the investigators involved

in the Fernando Almanza matter?

A. Yes.

O. Did you participate in the interview of

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Fernando Almanza?

A. Yes, I did.

O. And did you were you the person that

conducted the interview?

A. Yes, f am.

a. Was Mr. Almanza in custody when you began the

int ervi ew ?

A. He had been detained for investigative purposes

but was not in any sort of handcuffs or anything.

A. Was he free to leave at any time?

A. Yes, he was.

O. Was that articulated to him? Was that told

him?

A. f don't reca11 if we specified that.

O. After the interview, where did Mr. Almanza go?

A. He l-ef t the substation. f believe he was

said he was going to go get a soda or something and then

he was headed home.

a. Was he booked at any point that day?

A. No, he was not.

O. At any point during the interview was Miranda

read?

A. Yes, it was.

O. In what language was it read?

A. Both English and Spanish.

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a. As you were speaking with Mr. Almanza, were any

threats made to him?

A. NO.

O. Were any promises made to him?

A. NO.

O. As you were speaking with Mr. Almanza, did he

answer your questions in English?

A. Yes, he did.

O. Were the questions that he answered or that

is, were his responses, did they make sense given the

context of your questions?

A. Yes, they did.

O. Did they appear to be responsive to your

questions?

A. Yes, they were.

a. At some point did he indicate that he is a

Spanish speaker?

A. Yes, he did.

A. And that Spanish is his first and primary

language ?

A. YeS.

O. And did he ask whether or not somebody speaks

Spani sh?

A. Yes, he did.

O. Was a Spanish speaker contacted?

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 53 of 106
54

A. Yes.

O. And did a Spanish speaker respond?

A. Yes.

O. With a Spanish speaker available, why, then,

was the entire interview not conducted in spani-sh?

A. At that point he was answering the questions

that r asked. At any point if he had questions, it was

clarified through our spanish speaker, but based upon

the contact he seemed comfortable responding to my

questions in English.

O. And in fact, through the course of your

intervi-ew were there times when he spoke spanish?

A. Yes, there were.

O. And was he ever instructed not to speak

Spani sh ?

A. No, he was not.

a. Did you understand him clearly when he would

respond to your questions?

A. He has a heavy accent, but r could understand

the majority of what he said and look for clarification

if r didn't understand or ask for crarification.

a. Did he ever tel1 you that he didn't want to

answer in English?

A. He never made an indication that he was

uncomfortable with English.

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a. Did he ever say that what he's saying isn,L

accurate due to English?

A. No.

O. Again, was he ever forced or induced to speak

only in English?

A. No.

o. Te11 me about the conditions of the room where

the interview took p1ace.

A. ft's kind of a common area inside the

government building there. Has a large conference tabre

that he sat at. There was an exit door, glass doors

directly to one side of us, and then if you went down

the hallway you would go through the main exit door as

we11.

O. Is this a place that has is accessible by

the public?

A. It is houses our office as well as the

Department of Motor Vehicles' office in san Manuel, and

r believe the Adult probations has an office in

there. During normal business hours it is open to the

public.

o. But once you walk outside of the room that the

interview was conducted in, is that a public

thoroughfare or hallway?

A. This was actually kind of a -just an open

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space in the the larger building. It wasn,t a room

specified for any particular use. And it had a large

table in there.

O. So this room that you used, was it is it

if f'm understanding you correctly, it,s not only used

by the Pinal County Sheriff's Office?

A. That's correct.

O. Was he handcuffed?

A. Not upon my arrival, no.

O. And you already testified that after your

interview he was not handcuffed as well; is that

accurate ?

A. That's correct.

O. Was he provided an opportunity to take a break

if he wanted?

A. Yes.

O. Did he take break that you know of?

A. We took a break while we were waiting for

the translator, and then there was another break at.

a point where I went and conferred with

Detective Sanchez.

0. And during that break, was Mr. Almanza free to

1 eave ?

A. Yes, he was.

O. Was he restrained or locked behind any doors

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during those breaks?

A. NO.

a. Do you know if anyone stood by him to ensure

stood by, either a guard or just standing by him, for

any purpose that you know of?

A. Sergeant Vargas was in the room as a

translator. They conducted a conversation while r was

gone.

a. Was he given an opportunity to have a glass of

water or some other refreshment?

A. A11 of it was available, yes.

A. Do you know if it was provided?

A. f don,t recall him asking for one off the top

of my head.

0. Do you know if you offered it?

A. f don,t recal1.

O. And at the end of the interview, how did he get

home ?

A. We offered him a ride. He declined and he

walked.

A. Okay. Was he permitted to go on his own?

A. Yes, he was.

O. Fj-nd any means of transportation or way he

wanted to get home?

A. Yes, he was.

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O. And to your knowledge, did he do that?

A. To the best of my knowledge.

O. But that notwithstandirg, prior to you asking

any speci-fic questions, Miranda his Miranda warnings

were given in both English and Spanish; is that

accurate ?

A. That's correct.

a. Did he indicate whether or not he understood

his rights?

A. He had some questions that were answered for

him, but he indicated he wanted us to ask questions so

that he could understand what was going on.

O. And was he advised that he could stop asking

questions at any time?

A. Yes, he was.

MR. LONG: Those are all my questions.

THE COURT: Before I turn it over to you,

Mr. Green, Mr. Long, Mr. Huggins had the motion one

of his motions is to suppress everythirg, alleging that

even the act of detaining Mr. Almanza may have been

unconstitutional. Do you want to kind of ask a few

questions to kind of underline why he was detained and

what precipitated this?

MR. LONG: Certainly.

BY MR. LONG:

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O. Prior to your arrival, do you know how it was

that Mr. Almanza came to come to the San Manuel

subs tat ion ?

A. The evening prior when the allegation was first

brought to the attention of the Sheriff 's Office,

sergeant Agresta had notified the patrol officers in

that area that if located, we would like to speak to him

to determine what, if Efly, responsibility he had or what

part he played in the investigation or in the incident.

Patrol deputies located him the next

mornj-ng and brought him down to the substation so that

he could be talked to.

O. So he was brought by pinal County Sheriff,s

Office

A. Yes, he was.

O. f'm sorry the deputies from the pinal County

Sheriff's Office?

A. That's correct.

O. Do you know whether or not they put him in

handcuf fs ?

A. f don't know.

O. At that point when he was contacted, had the

victim made statements alleging that Mr. Almanza had

put his finger inside of her?

A. Yes, she had.

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O. Prior to him being contacted, was a medical

exam done?

A. Yes, it was.

o. Did you learn about the results of that medical

exam?

A. Yes, I did.

O. And what was that?

A. That the victim had injuries that were

consistent with the statements she made about how the

injuries were obtained.

O. So that information was known prior to

Mr. Almanza ever being contacted; is that accurate?

A. That's correct.

a. And you did not personally make a decision to

either take him into custody or contact him; is that

accurate ?

A. That's correct.

O. And you were ca11ed after the fact to conduct

the interview?

A. That's correct.

O. But that information that you just relayed

about the disclosure and the medical findings were known

to both deputies that had contact with Mr. Almanza; is

that accurate?

A. That's correct.

.)

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MR. LONG: Those are all my questions.

THE COURT: A11 right. Thank you, sir.

Mr. Green?

CROSS-EXAMfNATION

BY MR. GREEN:

O. When did you or 1aw enforcement learn of the

incident that a11egedly happened between Ada and

Mr. Almanza?

A. The call was received by our Dispatch on

October the 22nd. I believe it was about 4:50 , 4:55 in

the afternoon.

O. And what was the something went out, you

said, to pick up Mr. Almanza; is that correct?

A. I was contacted by Sergeant Agresta. I was the

on-ca11 that weekend, but I had somebody covering for me

for the first couple of hours. I was out of town on a

conference.

I was notified by Sergeant Agresta that he

had discussed it with t,he patrol of f icers or the patrol

deputies in the area and had notified them that if they

located Mr. Almanza, that he was needed for questioning

and to contact me if he was if he was located.

a. Were they told to pick him up?

A. I don't know the exact content of the

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conversation sergeant Agresta had with the patrol

deputi es .

O. Did you te11 Sergeant Agresta? Is that

right ?

A. Sergeant Agresta.

o. Did you te1l him that you wanted Almanza picked

up?

A. No, f didn't.

a. But he was picked up, correct?

A. That's correct.

o. And you have no recollection of whether he was

handcuffed when he was picked up?

A. I wasn't present at the time, sir.

o. was he given a choice of whether he came to the

office or not?

A. f wasn't present for the conversation that he

had with the deputies.

a. Who was?

A. r believe it was Deputies perry and Bagwell

that made contact with him.

O. Now, when he was brought to the substation,

where was he placed?

A. He was placed in one of our holding ce11s.

0. So he was locked up?

A. He was placed in a location that would be

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comfortable for him, yes.

O. That was secure?

A. YeS.

a. And had he been Mirandized at any ti-me between

the time that he was picked up on the road or the time

that he was placed in the holding ce11?

A. Not that I'm aware of.

a. So the first time that he was Mirandized was

the English and spanish that was done by you personally?

A. To the best of my knowledge.

o. Did he understand what you were talking about?

A. He appeared to.

a. He asked an awful lot of questions. Did he

have confusion about what it was that you were telling

him?

A. You're aski_ng me what your client's mental

state was when f was talking to him?

0. No. I'm asking you, in your interview did

you did he exhibit confusion as to what you were

asking him or what you were telling him when you were

giving him Miranda rights?

A. He seemed to have some questions. And we tried

to explain them to him as best as possible in both

English and spanish so that we could ensure that he

understood what we were saying.

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O. And it was your belief that when you started

questioning him he understood what you were saying?

A. That's correct.

a. Do you understand that at some point he said,

"No, " right, " f don' t want to answer questions . "

Correc t ?

A. That's correct. And then he indicated after

that that he wanted us to ask the questions.

0. Did he indi-cate that unsolicited, or did you

ask him another question?

A. I would have to refer to the transcript on

that. I believe I believe we asked him if he

understood or if he wanted to ask any if he wanted to

answer any questions.

a. And his first answer was "No, " correct?

A. Again, I would have to refer to the transcript

to know the specifics of the conversation.

O. You Mirandized him after you had taken his

fingernails; is that correct?

A. I believe we executed the search warrant first,

that's correct.

O. Was an arrest warrant ever issued?

A. No, not at that time.

O. Did you have time to do it between the time

Ehat he was picked up and the time that from the time

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that you heard about this to the time that he was picked

up, did you have time to execute an arrest warrant?

A. Not particularly. I was driving back from

Nevada during that time.

O. Did any of the officers have an opportunity,

have time to do an arrest warrant?

A. I don't know what their work schedule was like

during the rest of that shift for them.

MR. GREEN: I'm sorry, Your Honor. f'm

having a hard time finding the Miranda sections.

THE COURT: Go ahead.

BY MR. GREEN:

0. Who was the Spanish speaker that you brought,

over to assist you?

A. Sergeant Louie Vargas.

O. Is Sergeant Louie Vargas a native speaker?

A. To the best of my knowledge.

O. He's Hispanic?

A. Yes -

a. So you read him his Miranda rights in English

first?

A. That's correct.

O. And then Detective Sanchez allegedly in the

English transcript it says, ',in-Spanish discussion,"

then it says Detective Sanchez says, "I just read him

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his Miranda in spanish and he stated he und.erstood. ,'

A. There were some misstatements on the

transcripts that f had noted to

THE COURT: Let me stop you a minute. Is

it Sanchez or is it Vargas?

MR. LONG: f think Detective Snyder is just

going to explain that discrepancy, ,Judge.

THE COURT: Okay. I'm trying to f igure

that out myself.

Go ahead.

THE WITNESS: When I went through the

transcripts prior to the interview with your

predecessor, the r found that they had mislabeled

some of the conversation there. some of what they had

attributed to Detective Sanchez was actually

Sergeant Vargas.

And I had made notes of that and provided

that to the County Attorney's Office.

BY MR. GREEN:

O. So is it correct to sdy, then, ds we go through

this entire transcript, that Detective sanchez was not

in the room?

A. Detective sanchez was in the room, but most of

what was attributed in Spanish to Detective sanchez was

actually Sergeant Vargas.

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a. Okay. And Sergeant Vargas is a native Spanish

speaker, to the best of your knowledge?

A. To the best of my knowledge.

THE COURT: Again, just to clear it up for

fl€, is his first name Luis? Louis?

THE WITNE

THE COURT

THE WITNE

THE COURT

attorneys, again, to c1

as the Almanza Intervie

Attachment 3, it refers

That, I'ilI assuming, is

MR. LONG:

THE COURT

MR. LONG:

THE COURT

Mr. Green?

MR. GREEN

particular copy, your H

THE COURT

the State's response.

MR. GREEN

Your Honor.

THE COURT

SS: ft's L-u-i-s.

: Luis?

SS: He pronounces it "Louie.,,

Okay. The again, for the

ear it up for fr€, what is labeled

w that in the State's response is

to a Sergeant Louis, L-o-u-i-s.

Sergeant Luis Vargas, then?

Yes, sir.

Does that sound right?

Yes.

Do you have that there,

f'm not seeing it in this

onor -

Okay. ft was Attachment 3 to

And that' s what f'm looking dt,

And it's a three-page, I

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think what purports

the Spanish portion wit

MR. GREEN

THE COURT

MR. GREEN

THE COURT

MR. GREEN

THE COURT

the very end of the Sta

year. Let's see, when

October 3rd of last yea

MR. GREEN

THE COURT

MR. GREEN

THE COURT

for everybody, where it

actually referring to S

Okay. Go

MR. GREEN

record, what I'm lookin

transcript, not that tr

THE COURT

MR. GREEN

copy the columnar repor

interpreters' office, c

to be a three-page translation of

h some of the English portion.

Is this the column

No.

two-column report?

No, it's

At the very beginning?

ft's his Attachment 3 was at

te's response that was filed last

was it fi1ed. Filed on

r

Ah, okay.

Do you have it?

Yes.

And again, just to clear it up

says "Sergreant Louis,', it's

ergeant Lui-s Vargas.

ahead, Mr. Green.

And Your Honor, just for the

g at here is the actual

anslation.

Risht.

I also have interjected in my

t that was done by the

ourt interpreters' office. That

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has for those sections that where it says,

"in-Spanish discussion,,, your Honor, it's my

understanding that that indicates in some cases that

indicates a one-sentence piece and in another case it

goes for three pages.

THE COURT: Okay. I don't have that.

That's what f have.

BY MR. GREEN:

a. And if I may, in the translation it says and

again, I'rr going to read the English from the

translation: 'Did you understand the Miranda warning?"

That's the question.

And he says, " Si, yes. ,,

And then another voice, and I'm not sure

who this is, says, "f am.,'

And then, "I just understood that I need an

attorney, but I don't understand why.,, And again and

then he says that he'11 read it to him in spanish. He

reads it in Spanish. And he asks again, "Why do f now

need to get a why do r have to get an attorney if r

did not do anything? "

So he's, &t this point, fairly confused

about whether or why or how he needs an attorney; is

that correct?

A. That's correct.

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And as f reca11, we explained to him that

we weren't telling him he necessarily needed one, just

that he had the right to have one if he chose.

O. Okay. And then it says again, f ,rl on page 5

of the supplement, which f its in at page 1,9 of the

transcript "No. we1l, r want them to ask me. r want

to see what they want. "

And then the officer, one of the officers,

says, " So you understand your rights and you want to

answer the questions?',

And he says, ',No. ,'

And the of f icer says, ,,you don,t want Lo

answer the questions?"

And he says, "yes, I want to answer,

but "

want t.o say.,, 

"oo"' Go ahead and say what it is you

And at f irst he said, "No, ,' and then you

continued to ask him questions. My understanding

MR. LONG: Your Honor, if Mr. Green is

going to use the transcript and ask the witness to

testify, can he have access to the transcript?

THE COURT: Sure.

MR. LONG: This is Exhibit No. t1_6.

THE COURT: Okay. And you had him on

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page 1-9 ? I s that what you had, Mr . Green?

MR. GREEN: f was on that's where I was,

yes, Your Honor.

Now, does that also include the Spanish

translation?

MR. LONG: Yes.

And there are times in this transcript

where the page numbers aren't directly at the top, but

it does comport with the page numbers that he,s

ref erencing. so j-f you look at there will be numbers

on the left-hand side, often at the top but sometimes a

few lines down.

THE COURT: Do you have it?

THE WfTNESS: I believe f'm on the right

page, yes, sir.

THE COURT: Okay. Go, Mr. Green.

MR. GREEN: Okay.

BY MR. GREEN:

O. And at some point he said in English again

and now ilm on page 1,9 of the original transcript, not

the translation Detective Snyder, you said, ,,We,re

not saying that you need a lawyer, we're saying you have

the right to have one if you want one. we,re not saying

that you have to have one, we're just saying that if you

want one, you can have one."

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And Mr. Almanza says, "We11, I ain,t got no

money I ain't got money. " f 'm sorry, I misquoted.

" Okay? "

And Detective Snyder said, ',Well, and if

you want one and you can't afford one, then the Court

can appoint one at a later time. ,,

ft seems to me we11, do you believe that

from this conversation that he understood what it was

you were talking about when you were giving him the

Miranda rights?

A. He indicated that he understood and that he

wanted us to ask him the questions.

O. You weren't concerned about the language

problems ?

A. That's why we had a Spanish interpreter there

to help clarify.

O. But yet you continued the interview in English?

Most of this interview is in English, correct?

A. And his answers were as we11.

0. And it didn't concern you that he didn't speak

very good I mean, it,s pretty clear when you talk to

him, isn't it, that he doesn't speak English well?

A. Every time I asked him a question in English,

he gave a response that was appropri-ate based upon the

context of the question. Anytime that there was

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seemed to be any sort of confusion, he would refer to

Sergeant Vargas, and they would Sergeant Vargas would

c lari fy .

O. Wel1, in fact didn't he give you answers that

you were looking for?

A. (Wo verbal response. )

O. Correct? When you say that the answers were

appropriate to the question, those were the answers that

you were expecting based on the knowledge that you had

about things that had gone ofl, correct?

A. The questions that I asked him and the answers

that he provided were consistent. He wasn,t giving

answers that were out of line for the question I was

asking. I didn't ask him his birth date and he would

respond with "purp1e, " he would respond with an answer

that was appropriate to the question.

MR. GREEN: f have no more questions, your

Honor.

THE COURT: A11 right. Any redirect?

MR. LONG: One follow-up.

REDIRECT EXAMINATION

BY MR. LONG:

a. There was a question about Mr. Green said if

there was some confusion or questions about what was

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bei-ng said, and r want to clarify that. when he would

respond in English to one of your questions, did there

appear to be confusion as to what your question was?

A. No, f don't think so.

O. At times was there confusion over why he was

there and why he was being asked questions?

A. Yes.

0. And was that, those concepts, dt times

explained in both English and Spanish?

A. Yes.

a. Focusing on page L9, after he was after

there was this discussion about an attorney, did Mr.

that is, sergeant vargas speak to him in spanish after

there was this discussion about whether or not he could

afford an attorney and whether or not one would be

appointed at a later time?

A. Yes.

O. And what was the what did Sergeant Vargas

say after that discussion?

A. Did you want me to read it from the transcript

or just paraphrase?

o. The translation that you have in front of you,

please.

A. The translation that f have, Sergeant Vargas

says, "That's only for a they ask you they have a

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few questions for you. They can't begin with these

questions or explai-n everything that is happening if you

don't want to. "

O. And did Mr. Almanza respond to that?

A. Yes, he did.

a. And what did he respond with?

A. "No. We1l, f want them to ask me. I want to

see what they want. ',

O. Then later was that then translated to you?

A. Yes, it was.

A. And then did Mr. did Sergeant Vargas

continue with his explanation to Mr. Almanza?

A. Yes, he did.

a. And what did he explain to Mr. Almanza?

A. sergeant vargas asked, "so you understand your

right and you want to answer the questions? "

O. And that was in Spanish?

A. Yes, it was.

O. And what did Mr. Almanza say?

A. He said, ,,No. ,,

O. And what did Sergeant Vargas say?

A. "You don't want to answer the questions, sir?,,

O. And what did Mr. Almanza say?

A. "Yes, I want to answer, but okay, okay. Go

ahead, sdy what it is you want to know. ,,

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O. And that came from Mr. Almanza?

A. Yes.

O. And at that point did the interview were

questions, specific questions asked of him?

A. Yes, they were.

MR. LONG: Those are all my questions.

THE COURT: Okay. Go ahead and step down.

Let me have that exhibit, please.

Do you have any additional witnesses,

Mr. Long?

MR. LONG: No, sir.

THE COURT: Good.

Mr. Green, do you have any witnesses?

MR. GREEN: No, your Honor. Just argument.

THE COURT: Good.

Okay. Mr. Long, do you want to add

anything to the response that you previously filed?

Mr. LONG: No, sir.

THE COURT: Mr. Green, you want to add

something new to Mr. Huggins' motions?

MR. GREEN: your Honor, only that I think

it's very clear from the interview, when you listen to

the entirety of the interview, and especially to this

portion around the Miranda warnings, that my client, who

speaks no English or very 1itt1e English, who struggles

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with, does not, read, does noL write, is illiterate, is a

farm worker with no education, that there was

significant confusion as to what they were talking about

when they were telling him these Miranda rights.

He kept asking, Your Honor, do you do

I -- he asked them, do I -- why do I need a lawyer,

because he thought that they were saying, your Honor,

you need a lawyer, and he was confused by that.

f don't believe that he fu11y understood,

Your Honor, and f think the transcript, and especially

listening to the sound of the voices, that my client

understood anything that was being said to him. He may

have answered appropriately, your Honor, but his answers

may or may not have been the answers that he would have

given had he fu11y understood what the questions were.

THE COURT: Okay.

MR. GREEN: So your Honor, f,flt what f'm

asking, I guess, is that any statements made by my

client in this interview be stricken and that testimony

not be a1lowed.

THE COURT: Did you want to add anything to

Mr. Huggins' motion to suppress everything because of an

i11ega1 arrest, what he characterized as an i11ega1

arres t ?

MR. GREEN: We11, your Honor, one of the

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questions that my client asked during the interview is

why didn't you come to my ranch. I live at my ranch.

Why didn't you come there if you wanted to ask me

questions?

road,

And they didn't. They picked him up on the

in a patrol car, marked patrol car.

We don't have testimony yet as to whether

he was handcuffed or not. r'm not sure whether he was

or not.

But Your Honor, that seems, once you,re in

custody, which he was in custody, because again, being

the person that he is, with the knowledge and 1eve1 of

intelligence and understanding that he has, I don,t

believe that anyone could believe that he didn't think

he was under arrest or in some way in custody when those

officers picked him up and brought him put him into a

locked ce1l and then had officers standing around him

while he was talking. Nowhere in the transcript is he

told that he's free to leave, and r don't believe he

ever was told that -

THE COURT: Okay. Let's take all of that

as a given. How does that lead to suppressing all of

the evj-dence, including the statements?

MR. GREEN: your Honor, we11, the

statements were involuntary, your Honor, and

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THE COURT: Okay. Here' s Mr. Huggins.

This i11ega1 arrest, as he defines it, happens, so

everything that fo11ows, includes the including the

statements, is suppressible, is involuntary or in

violation of constitution.

Your argument is are you trying to argue

the same thing he did? putting aside whatever else

might have happened during the statements, let's assume

he spoke perfect English, waived his rights, and gave a

statement. Mr. Huggins' argument would sti11 be, we11,

you picked him up and you didn't have a right to,

therefore, it's all suppressible. Are you sti11 making

that argument?

MR. GREEN: As far as an issue of probable

cause/ Your Honor, r guess is where you're headed with

this?

THE COURT

MR. GREEN

THE COURT

I guess that's how he says it.

Your Honor, f

I'm just asking for your

argument..

MR. GREEN f'm not making that argument,

Your Honor.

THE COURT: Okay. We11, and that's how I

read what Mr. Huggins was in effect saying is this is an

unconstitutional arrest and obviates or eliminates

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everything that happens afterwards.

Okay. Anything else you want to add?

MR. LONG: As to that issue, just, clearly

there was sufficient facts for an arrest. Arrest

warrants aren't necessary. There was probable cause

given the information they had with the disclosure from

the medical evi-dence, so even if there was an arrest, an

arrest would be appropriate, 1awfu1.

Even though he was ultimately allowed to go

at the end of the interview, he could have certainly

been booked, and r submit proof evident and presumption

great would have been fine on those facts a1one. so

there's not an i11ega1 arrest.

THE COURT: Okay.

MR. LONG: And his will was not overborne

as to the statements, which is the clear standard for

voluntariness, and so suppression is not appropriate.

THE COURT: Okay. We11, Iet's deal with

them in just that order.

Based on the officer,s testimony, it's

obvious if the picking up of Mr. Almanza was a

detention, not an arrest, that there was certainly

reasonable grounds to detain him for the purpose of

further investigation; that further investigation

apparently took, a11eged1y, three to four hours to

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obtain the physical evidence warrant. But in any event,

it was a detention and was grounded in on reasonable

grounds, very clear reasonable grounds.

If in fact you characterize it as an

arrest, and ilm not sure that r would, although arguably

you could because he was picked up let's assume he

was handcuffed, transported to the sheriff,s office. As

soon as the responsible officer arrived, he was released

from that holding ce11, not a jair cell but a holding

ce11, and placed in a position where, dccording to the

officer, was open to the public, he was free to leave,

if there were handcuffs they were removed, and. the

questioning occurred in that kind of setting.

So if it came to it, based on the victim's

statement and the medical evidence, if it is an arrest,

there was sufficient evidence from which probable cause

could be found to make an arrest. But I,m not going to

characterize it as an arrest. Arguably if it were an

arrest for 1ega1 purposes, there was probable cause to

lead to that arrest. The reason r don'L, r've already

stated, call it an arrest is because there was no

fo11ow-up. There was no booking, there were no charges,

he was interviewed, and he was released.

was free to go.

He was told he

So Mr. Huggins, motion, the first motion

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expressed by the Defendant, that

everything because of the arrest

deni ed .

is, to suppress

or the detainment, is

As to the motion to suppress the statements

based upon them being involuntary or in violation of

Miranda, the statements have all the criteria we11,

1et me back up.

Miranda was properly given both in English

and Spanish. The question is whether Mr. Almanza

understood and how that affected him. It,s clear from

the transcript and even more clear when you listen to

the audio recording that Mr. Almanza's first language is

not English, but he did respond to questions asked in a

manner that was consistent with the questions. It was

not, as the officer pointed out, answering "purple', to

the question "what's your birthday. "

His answers sometimes indicated he didn't

understand. the question or needed the question

clarified, but he certainly answered in response to

those questions. So there's his English, although

his English is probably as good as my Spanish would be,

at least indicates he understood the concepts, the

basics that were being asked.

When you get to Miranda, Miranda was given

The fo11ow-up to Miranda is that to Miranda is that

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question, do you understand these rights and do you want

to ta1k. His questioning of the officers, and even

saying no and then y€s, indicates that ultimately he did

understand those rights when they were explained to him.

He was clear, ds you work down through that

transcript where both English and Spanish are presented,

that he got a clear explanation, and the bottom line is

you don't have to talk to us if you don't want to. But

he wanted the questions asked so he would know, from all

appearances, what it is the officers were looking for,

what they thought they'd charge him with, what they

thought he had done. And he did ask they ask the

questions, and he was.

The circumstances already pointed out

indicate that the statements were given voluntarily.

There's no indication at all of any promise of any type;

there's no indication of any coercion or duress. The

only indication might be the understanding issue, and I

believe that it was that he ultimately understood,

and he understood before the bulk of the statements were

given or the questions were asked.

So the second motion to suppress the

statements is denied. Okay.

Now, with that, did we have anything else

we need to cover? We had Mr. Long,s motion in limine as

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to Mr. Cote.

You've indicated, again, you didn,t finish

your interview?

MR. LONG: I hadn't. I have not finished.

r have just a few more questions that f,d like before he

testif ies at some point, but I did.n' t f inish the

interview. And r don't know that r have not finished

i t, ,Judge .

THE COURT: Okay. Now, do you want to

precl-ude him entirely at least your motion asks that,

but 1et's because of the lack the L5.2 violation,

failure to disclose?

MR. LONG: And f'm candidly less concerned

about the timing of it and more would like to focus

more on the substance of why he should be precluded for

the lack of foundation. so if Mr. cote wants to testify

about things with which he has adequate knowledge

THE COURT: Wel1, how about the

photographs? How about going out to the scene and

photographing the area? That makes it clear for both

sides what it looks 1ike, dt 1east.

MR. LONG: The problem is, ,}udge, is during

the interview, Mr. cote was specifically asked whether

or not those fairly and accurately represent the

what' s being taken f rom the incident. He said, ,,No,

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they do not. " And so r think it lacks fundamental

foundation.

THE COURT: f'm sorry, does not fairly

represent what?

MR. LONG: Does not represent the location

and what the images depict from the time of the

location, so he lacks fundamental foundation.

THE COURT: You mean the time of the

incident?

MR. LONG: f'm sorry, the time of the

incident, yes, sir.

THE COURT: Okay, I gotcha. Those

photographs were taken enough later than october of 20L1,

they don't fairly and accurately he can,t say they

fairly and accurately represent it in october of 2olL?

MR. LONG: Correct.

THE COURT: Okay, I gotcha.

MR. LONG: And that,s specifically related

to the suggestion that's offered in his report that they

would like the argument that somehow those strands of

hair might be the victim, and that,s specifically what

I'm seeking to preclude as even the inference or

question that those hairs, (a) might be human, and (b)

might be the victim,s, that this witness lacks

foundation to offer that.

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 85 of 106
B6

THE COURT:

intent to refer to that

of that information?

Did you, Mr. Green, have any

in your opening statement, any

I'11 te11 you why f ask. f'11 make it real

clear. f don't normally like to rule on moti-ons in

limine that are dependent upon development of facts if r

don't have to, but if you're going to menti_on it in your

opening, I need to get it done now, and that,s why I

ask.

MR. GREEN: Your Honor, I don't believe I,m

going to we11, the issue is, the photographs and

f'm not contradicting Mr. cote at this point your

Honor, the photographs fairly represent the layout of

the farm, of the ranch. There are some photographs that

represent what we consider evidence, which are strands

of hair stuck in barbed wire.

THE COURT: Is your investigator able to

say when he took the photographs in 2oL3 it accurately

depicts what it looked like in 201-L? r think that was

the point that Mr. Long was making.

MR. GREEN: f don,t believe he can, your

Honor, because he was not there in 201,1, to know whether

it did or not, based on

THE COURT: Isn't that foundational,

though?

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Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 86 of 106
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MR. GREEN

that j-t's mostly i11ust

events occurred and so

THE COURT

don't know what it look

can't even say that. Y

illustrative of where h

was there in 2011-, righ

MR. GREEN

THE COURT

menti-on any of that in

to rule on the motion i

mention it, I'11 tel1 y

sounds like it's a moti

MR. GREEN

Well, it is, Your Honor, excepL

rative of the scene and how the

on and so forth.

You can't even say that if you

ed like in 201-L. I mean, you

ou can't say that angle is

e sat 2011, if you don't know what

t?

Correc t .

We11, if you are not going to

your opening, I'11 wait for a bit

n limine. If you are going to

ou right now, it doesn,t it

on that should be granted, okay?

At this point I'11 hold off,

Your Honor.

THE COURT Okay.

Why don't we I told the Jury

Commissioner 1:30 and we'11 get started with

impanelment. Why don't you guys go get some lunch and

come back here about 1:15.

The preliminary instructions that I gave

you are the real standard ones.

Mr. Kohler, Mr. Long, dry problem with

them? Have you even had a chance to go through them?

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MR. LONG: Judg'e, f haven' t looked through

them.

THE COURT: Okay.

MR. LONG: I don't need to. The

preliminary instructions, not concerned with them.

THE COURT: You only have one charge here,

and so r modified it enough so it references one charge

in the passages where it matters.

Mr. Kohler, you,re familiar with them.

Any

MR. KOHLER: No, your Honor. There,s

nothing in there that we would dispute at this point.

THE COURT: Okay. How about you,

Mr. Green?

MR. GREEN: your Honor, I haven't had a

chance to review them, but r d.on,t believe there will be

a problem, and f can review them over 1unch. r would be

happy to.

THE COURT: yeah 

, if you see any problem

1et me know, but it is rea11y the standards.

The tentative first draft of the finals,

they're just out there for you guys to say hey, .Tudgre,

you forget number 22 or don,t put in number 15 or

whatever it is. so those are just for discussion down

the road.

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 88 of 106
89

Yes, sir?

MR. KOHLER: f do have I did finish our

proposed final instructions, your Honor, if you would

like a copy of that.

THE COURT: Oh, good. you mean by

standard criminal?

MR. KOHLER: yes, and the statutory

criminal as we11, your Honor.

THE COURT: Okay, good. yeah. fs that the

original ?

MR. KOHLER: your Honor, I have not signed

any of them, so it effectively, yes.

THE COURT: Okay, gtood. Sign that and I , 1l

give it to the clerk. she,11 stamp it as original.

MR. KOHLER: Thank you.

THE COURT: And you will fi1e. Okay, thank

you very much.

Okay. Anything else before 1:15, Mr. Long?

MR. LONG: Nothing from the State.

THE COURT: Mr. Green?

MR. GREEN: No, your Honor.

THE COURT: Okay, fo1ks. See you then.

(Recessed from 11:53 a.m. until- 1_:22 p.m.

The proceedings resumed outside the presence of the jury

and with the presence of Sabine Michael, court

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interpreter. )

THE COURT: Let's have the record show the

presence of the attorneys and Defendant. The jury is

not here, Frospective jury is not here.

.Tust wanted to finish a few things before

we start impanelment. And again, the procedure r,m

going to fo11ow is not what ild normally do. when the

jurors are here we'11 have them sworn in, and what I,m

going to do is read them first the portion of the voir

dire that te11s them what we,re doing, asking questions,

et cetera- r'11 introduce everybody, and then f'm going

to read them the portion that deals with length of trial

and reasons to be excused.

And then what I'm going to do is ask them

first, because of the we11, 1et me back up.

There's a place in the voir dire, the bench

book voir dire, where r te11 them what the Defendant is

charged with, and I,m going to say: The Defendant in

this case is charged with committing sexual conduct with

a minor. The event is alleged to have occurred on

october 22nd, 201-L, in or near the town of Dud1eyvi1le.

The name of the alleged victim is Ada wi1he1mi, who at

the time of the incident was alleged to be or is alleged

to be 4 years or was alleged to be 4 years old. The

Defendant has pled not guilty to this charge.

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And I'm going to do that because first

thing we're going to use to get rid of prospective

jurors, if necessary, is me asking them to come up to

the podium if they, because of the nature of the case

aIone, feel they must be excused from the case. we'11

go through that set. r suspect we'11 lose a percentage

because of the nature of the charge.

And then I'm going to ask those who feel

that they are qualified to be excused for the 1ega1

reasons f had read to them, length of tria1, the

hardship, to come forward and we'11 get rid of those.

But in doing that, I need to check with you

guys. what actually is the length of trial? Because

we've changed things a 1itt1e bit from this morning.

Hopefully hopefully we'11 get a jury impaneled by

the end of the day today, hopefully. May not have the

preliminary instructions read by the end of the day, may

start off with that tomorrow morning or start off with

the opening statements. r rea11y don't want to qui_t

today unt i r we ' ve got the 15 that we ' re goi'ng to have .

Again, for the record, 1-2-person jury,

three alternates, 15 will be seated, 27 will be ca11ed

up, and that's what we'll work from when we get to the

strike-and-rep1ace.

Now, the trial If we start tomorrow,

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which is Tuesd.y, with testimony and the State has

indicated that they have a witness, a very important

witness who cannot be here until Monday, a week from

today, so we know we're going to have this week and at

least Monday of next week.

And I take it it's not a witness that you

could hold calling until the Defendant has done whatever

he's going to do? You need to put it on as part of your

case in chief?

MR. LONG: Yes, Judge.

THE COURT: Okay. Okay.

Now, knowing that, knowing that your last

witness is coming in Monday morning, whenever that is,

do you think we're going to have four fu11 days of

testimony, ot are there going to be days that are part

days ?

MR. LONG: I think there will be days that

will be part days, dlthough Judge, I think there is a

chance, if we go through fuIl days from Tuesday through

Friday, that we will have, for all intents and purposes,

fu11 days.

THE COURT: Okay. And that works out

because we had had the half day Thursday off, but we,re

going to be able to get that in. Okay.

MR. LONG: The only

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THE COURT: And do you take

MR. LONG: The only issue was,

we'11 have to play by ear, and for the Court

on Detective Snyder's requirement if he does

testify in that dependency matter, which is

not here in this courtroom

MR. LONG :

s waiting for a

it goes.

Correct. I think Detective

subpoena and confirmation

'm sorry

guess

, obviously,

have to go

in Phoenix,

one of those

the dependehcy,

. Mr. Green would

how 1ike1y they

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THE COURT: Oh, too bad.

MR. LONG: -- which presents a problem.

THE COURT: And we don' t know about that

yet ?

Snyder i

whether

My understanding is it,s

it's in the very preliminary stages of

so r rea11y am not familiar with those

probably be more helpful in telling us

are to go.

THE COURT: Okay. Well

MR. LONG: But that's the only other

wrinkle, ,Judge.

THE COURT: -- for the purpose of talking

to the jury about the length of tria], r'11 need to tel-t

them, ds best we can estimate at this stage, it,s not

going to finish at least until Monday, right? And

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that's if your last witness is on Monday and it depends

on what you do.

And I don't want an answer y€t, but even if

you have one or two witnesses, we should be able t.o get

it to the jury Monday. so do r need to tel1 them there

is a possibility, depending on deliberations, that. you

may have to come back Tuesday morning to deliberate? so

r need to 1et them know that it,s that possibility,

right ?

MR. LONG: Yes, sir.

THE COURT: Okay. The way of

introducing or telling them what he,s charged with,

any objection, Mr. Long?

MR. LONG: No, sir.

THE COURT: Mr. Green?

MR. GREEN: No, your Honor.

THE COURT: Okay. Then f have the witness

1ist. Nothing has changed there.

Any objections to the process the way I

described it, Mr. Long?

MR. LONG: No, sir.

THE COURT: First, the nature of the case,

and then second, the hardship things? Okay.

You either, Mr. Green?

MR. GREEN: No, your Honor. That sounds

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fine.

THE COURT: Okay. We know what happens

now. f don't know how many jurors they have. Hopefully

they've ca11ed at least 80. rt will take the next 2a

minutes to get them all up here, and we,11 get started

as soon as they,re in here.

I should say f'm going to read the parts

that r told you r was going to read and then introduce

all of you. So f'11 introduce you, Mr. Long, 1rou,

Mr. Kohler, you introduce your investigator; r'11

introduce you, Mr. Green, and then you can introduce who

is at the table with you. you want to be identified as

from the 1aw firm of cooper & Rueter in casa Grande?

MR. GREEN

1aw firm would apprecia

THE COURT

know anybody in that fi

MR. GREEN

THE COURT

Rueter may have done a

MR. GREEN

problem

THE COURT

f know how to

Sure, Your Honor. I'm sure my

te that.

I do have to ask does anybody

rm.

Risht.

They may not know you, but Ltz

them or something.

Right.

divorce for

County a

i ntroduc e

ttorneys, there's no

you.

I didn't, because it was not me that 1ed

this up to trial, one of the other questions r ask at my

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 95 of 106
96

final pretrial, do you want me to mention the use of the

interpreter? Because one of my it runs like this:

Ladies and gentlemen, during the course of the trial r

think you may see an interpreter assisting the

Defendant. You are not to consider this in your

deliberat j-ons or a11ow it to af f ect you in any way.

Anybody have any problem with that? Any

problem with that?

MR. GREEN:

that, Your Honor.

THE COURT:

and I think one trial we

they can't speak English

know, one of those kind.

f don't have any problem with

Okay. ft's just one of the

did catch one juror who said

they shouldn't be here. you

i_f

So no problem, right?

MR. LONG: Right.

THE COURT: Okay.

MR. GREEN: Your Honor, f do have if f

frdy, f do have a motion. This is an easy one.

THE COURT: You know, dctually they're all

easy. ft's just a matter of applying the 1aw to the

facts as you te1l me.

MR. GREEN: We11, your Honor, this one is

f or additional hours f or Mr. cote to be abl_e to assist

me at tria1. r filed it downstairs, but the original --

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THE COURT: This is the second trial in a

row where the first day of trial they wanted more money.

MR. LONG: f'11 have

MR. GREEN: They work hard.

MR. LONG: -- my motion prepared shortly,

'Judge.

THE COURT: Yeah. Considering what he's

getting paid in an hour, r'rl getting less than half

that.

What do you think you need, Mr. Cote? 20?

30?

MR. GREEN: Your Honor, the motion was for

5 0, I believe .

THE COURT: I didn,t look. I just looked

at the order.

MR. COTE: f t , s mainly trial hours, .Tudge.

THE COURT: Okay, done.

Okay. Let's take a break and get the

jurors up and we,11 get started.

(Recessed f rom 1:30 p.m. until t:44 p.m.

The proceedings resumed with the presence of the

prospective jury pane1. )

THE COURT: Good afternoon, fo1ks, and

welcome to the Pinal county courthouse in 1ove1y

Florence, Ar:.-zona.

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Thi-s is the time set for the trial in the

matter of CR2011_03026, State versus Fernando Segoviano

Almanza.

Is the State ready to proceed?

MR. LONG: Yes. Matthew Long for the State

of Artzona. The State is ready to proceed.

THE COURT: Thank you very much, sir.

And is the Defendant ready, sir?

MR. GREEN: Yes, your Honor. paul Green

for the Defendant.

THE COURT: Thank you very much.

Okay. Ladies and gentlemen, f need you all

to stand and raise your right hands. we're going to

swear you i_n as prospective jurors , if you wou1d,

please.

(The prospective jury panel was duly sworn

by the clerk of the court, according to 1aw.)

THE COURT: Thank you very much , fo1ks.

Please have a seat.

(Pursuant to pinal County Administrative

order No. 94-07, jury voir dire is not included in this

transcript but was conducted at this time.)

THE COURT: Subject to our discussion,

Mr. Long, do you pass the panel for the State?

MR. LONG: Yes, sir.

Case 2:15-cv-02064-DLR Document 82-1 Filed 05/16/19 Page 98 of 106
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THE COURT: Subject to our discussion,

Mr. Green, do you pass the paner for the Defendant?

MR. GREEN: I do, your Honor.

THE COURT: Okay. That has a 1ega1 effect

r need to explain to you. Those of you who are behind.

the bar are now excused. you can check out with the

Jury commissioner. r do want to thank you very much for

being here, for showing up, for waiting patiently, and.

for listening and being ready to be ca11ed here, but you

are all excused.

And I suspect, Mr. Long, Mr. Green, we can

expect the normal 40 minutes to 60 minutes to get

through this, f suspect?

MR. LONG: I won't need that 1ong, but I,m

happy to take whatever the Court will give.

THE COURT: What I,m going to suggest, and

now f'm doing it openly because 27 of you all have some

investment in it.

The next section, what normally happens,

the litt1e script says f'm supposed to te1l you this

will take 30 to 40 minutes, go downstairs and wait until

we call for you. ft's already ten to 5:00. r have a

couple of options and it will probably take, dt a

mini-mum, 30 minutes to get through the next section that

has to be done that is, to send you all home and hawe

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all 27 of you come back in the morning and t,hen we'11

seat the trial jury, or we can have you all sit

downstairs and wait downstairs until the attorneys and r

have finished the next section.

Mr. Long, you don't have any particular

preference?

MR. LONG: I don' t, Judge.

THE COURT: Mr. Green?

MR. GREEN: No, your Honor.

THE COURT: We11, ladies and gentlemen, I ,rTl

looking to see if faces look happy or unhappy. By 5:30,

if r keep you here, by 5:30 we'1l pare it down to 15,

and that means t2 of the 27 of you are done. rf r send

you all home, that means all 2i of you need to be back.

f think probably it,s fair to aI1 of you to

ask you to please wait downstairs. We,11 get you up

here no later than 5:30 and we,1l seat the 15 of you and

1et t2 of you go home.

I always say this before f send you down

there: Please believe me that all of you have been

found to be fair and impartial; you've all been found to

be qualified to be on the jury.

When we do get you back here you'11 come in

at random, and then we'l1 call you up to seat the 15 of

you. rf you're not one of those L5, please do not be I

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insulted. we simply have to pare it down a bit, and

that's the next step in it. Okay?

Fo11ow Todd down there, do not speculate

about the case, and we'11 get you out as quickly as

possible.

(Recessed f rom 4: 53 p.m. until 4 :55 p.m.

The proceedings resumed outside the presence of the

prospective jury pane1. )

THE COURT: Mr. Long, anything else you

want to add?

MR. LONG:

THE COURT

MR. LONG:

THE COURT

MR. GREEN

THE COURT

of you, to work diligen

5:30 promise. Okay?

MR. LONG:

problem. I'm kidding.

THE COURT

( Recessed

No, sir.

You ready to do the strikes?

I am.

Mr. Green, you?

f believe so, yes, sir.

Okay. f please ask you, both

t1y and see if we can keep that

We'11 do our best.

I got eight, so sj-x won't be a

Thank you.

from 4:55 p.m. unti:- 5:25 p.m.

MR. GREEN

The proceedings resumed with the presence of the

prospective jury panel and Laura And.erson, court

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interpreter. )

THE COURT: Let,s have the record show the

presence of the attorneys, the Defendant, Mr. Almanza,

and the prospective jurors are present.

The clerk is now going to call the names of

those 15 that will hear the trial. As your name is

ca11ed, please come on forward and the bailiff will get

you seated.

THE CLERK: Kathleen Debnar, ,Joanne Winner,

Phillip Fox, Lee Nelson, ,fohn Fitch, paul Mieras, Linda

Fedele, Heather Fenie11o, cheryl Douglas, Darrel snyder,

Frank Todaro, Nancy Fa11on, David Mersy, Mia King,

Harold Swanson.

THE COURT: Okay, thank you very much.

Okay, ladies and gentlemen. As f mentioned

when we took the break, those of you behind the bar are

again please, thank you all very much have all

been found to be good jurors, qualified to sit as

j urors , but as r said, we narrowed i t d.own . you ' re all

excused. Thank you very much. The ,Jury commissioner is

waiting for you.

Now for the 15 of you, f need you once

again to stand and raise your right hands, please.

She'11 swear you in as a trial juror.

(The jury panel was duly sworn by the clerk

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of the courL, dccording to 1aw.)

THE COURT: Thanks, foIks. Have a seat.

Okay. Ladies and gentlemen, what we're

going to do is we're going to take the evening recess

and we'11 start in the morning with preliminary

instructions. r actually don't have them copied for you

or r would do that right now. so we'11 pass those out

first thing in the morning and then we, 11 start with

opening statements.

f'm not going to read all those to you,

although f have a set. what r do want to talk to you

about real briefly is your behavior as jurors, the

important parts, and r'11 go into more detail tomorrow.

You've heard what the charge is. you,ve

got kind of a basic idea of when it happened and who is

accused and who the alleged victim is, et cetera. Do

not speculate about what's being presented to you. you

will not be able to decide this case until you,ve heard

all the evidence, the arguments of counsel, and you,ve

gone back to the room , Jvry room to deriberate.

Please do not talk to anybody about the

jury service except to tell them that you're on a jury

and what the estimated length of the trial is. f know

as we go along you will be getting information. you

might be tempted by friends, spouse, you know, iney,

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what's going on. you can't talk about what ,s going on

during the trial. A11 you can do is te1l them how long

the trial is that you're on the jury and how long the

trial is.

When you come back in the morning, please

meet at the jury room, the assembly room downstairs. Do

not come up to the courtroom. The bailiff will bring

you up here. We don't want you kind of drifting up

here. The attorneys and r will be meeting at g:30. r

need you there at about a quarter to 9:00, and we,11 do

our best to get you up here at 9 o'clock in the morning.

ff you do have any questions about parking

or restaurants, that kind of thing, the bailiff and

other court staff downstairs can help you, but if

there's any questions about the case, you cannot talk to

the court staff about it.

You can, during the course of the trial __

and again, r'11 give you more details later fill out

a littIe form, and you ask a question. rf you want to

ask a question of me or one of the witnesses or one of

the attorneys, there's a way to do that, and there's a

1itt1e form that will be in the booklet you'11 get. But

in the meanwhile, staff cannot talk about the trial

either, So if they kind of shrug you off when you

mention it, it's because they know they're not supposed

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to talk. Okay?

Any questj_ons from any of you?

Let me double-check before I send you home.

Mr. Long, do you want to cover anything else before they

go home for the evening?

MR. LONG: No, sir, nothing from the State.

THE COURT: Good, thank you.

Do you, Mr. Green?

MR. GREEN: Nothing, your Honor.

THE COURT: Okay, thank you.

Okay, fo1ks. Go ahead and. fo11ow the

bailiff out. we'11 see you r'11 see you at 9:00, but

remember to be here at a quarter to 9:00.

Attorneys, please be here at g:30.

(5:31 p.m.)

---o0o---

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CERTIFTCATE

I , ,Jacquelyn A. A11en, RpR, a Certi f ied

Reporter in the state of Arizona, do hereby certify that

the foregoing pages 1 - 105 constitute a fu11, true, and

accurate transcript of the proceedings had in the

foregoing matter, all done to the best of my skil1 and

ability.

SfcNED and dated this 2gth day of February,

201"4.

JACQUELYN A. ALLEN, RPR Certified Reporter No. 50151 For the State of Arizona

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