Jeff Wood Trial Transcript, Day 2

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA
STATE OF ARIZONA, Plaintiff,
) ) ) vs. ) ) JEFFREY ALLEN WOOD, ) Defendant. ) ______________________________)
2 CA-CR 2011-0193 CR-20093952
BEFORE:
THE HON. JOHN LEONARDO, DIV. 10
APPEARANCES: MARK DIEBOLT appearing for the State
DONALD KLEIN SANDRA BENSLEY appearing for the Defendant
JURY TRIAL - DAY TWO 21 22 23 24 25
5/11/11
Deirdre Muzall, RDR, #50012 Certified Court Reporter
1 2 3 4 5 6 7 8 NURSE QUATTLEBAUM 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DISCUSSION RE: 23 24 25 RULE 20 MOTION OFFICER SIAN RAYOT BRADLEY ROACH
INDEX
INVESTIGATOR FRIEDLANDER D. E. By Mr. Diebolt C. E. By Mr. Klein ReD. E. By Mr. Diebolt ReC. E. By Mr. Klein p p p p 5 10 17 19
D. E. By Ms. Bensley C. E. By Mr. Diebolt ReD. E. By Ms. Bensley
p p P
21 28 30
D. E. By Mr. Klein C. E. By Mr. Diebolt ReD. E. By Mr. Klein
p p p
31 35 38
D. E. By Mr. Klein C. E. By Mr. Diebolt ReD. E. By Mr. Klein
p p p
40 47 49
JURY INSTRUCTIONS
50
65
1 OFFICER CHIARAVALLO 2 D. E. By Ms. Bensley 3 4 5 6 7 8 9 10 11 12 13 JURY VERDICT 14 15 16 17 18 19 20 21 22 23 24 25 p 126 JUDGE'S FINAL INSTRUCTIONS TO THE JURY p 109 CLOSING STATEMENT BY MR. DIEBOLT CLOSING STATEMENT BY MR. KLEIN FINAL CLOSING BY MR. DIEBOLT p p p 84 86 105 p 75
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 goes. THE BAILIFF: THE COURT: Ladies and Gentlemen . THE COURT:
PROCEEDINGS
Good morning.
The record will show
the presence of counsel and the defendant , the absence of the jury . Anything before we bring the jury in? MR. DIEBOLT: THE COURT: next witness? MR. DIEBOLT: Investigator Friedlander and I No, Judge. And Mr. Diebolt, who will be your
expect him to be my last witness , Judge. THE COURT: MR. KLEIN: Very well . You may bring them in. We have
This can be off the record.
three witnesses lined up for this morning which I think we should be able to finish by noon . witness at 1:30. And then we have one
What I was going to suggest is that
maybe we have him a little bit later and we can try to settle jury instructions so we don't break after just one witness. THE COURT: Okay. We will see how the timing
Your Honor, the jury. Please be seated. Good morning,
The record will show the presence The State may
of the jury , counsel and the defendant . call its next witness.
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MR. DIEBOLT: Friedlander .
The State calls Investigator
INVESTIGATOR FRIEDLANDER having been duly sworn, takes the witness stand and testifies as follows.
DIRECT EXAMINATION MR. DIEBOLT:
Q.
please. A.
If you would introduce yourself to the jury,
My name is Ian Friedlander . What is your occupation ? I'm a special investigator for the Arizona
Q.
A.
Department of Corrections.
Q.
position ? A.
And, sir, how long have you been in that
Nine and a half years. During that time have you participated in the
Q.
investigation of incidents at the Department of Corrections ? A. Yes, I have . I want to talk to you about this particular Did you participate in the investigation of the
Q.
incident .
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incident involving inmate Wood and inmate Schwartz ? A. Yes, I did. Did you as a part of that investigation do
Q.
follow-up interviews of individuals who may have some knowledge of what had happened? A. Yes, I did. Did you also complete a report with regard to
Q.
your findings? A. Yes, I did. Is that report in front of you there marked
Q.
State's 14, or is that a copy of it? A. This is a copy of my report. I want to talk to you about, you obviously were
Q.
not there when the incident happened; is that correct ? A. Pardon me ? You were not there when the incident happened,
Q.
correct? A.
Correct. At some point later were you asked to participate
Q.
in an investigation? A. Yes, sir . And as a part of your participation, did you have
Q.
the opportunity to meet with inmate Wood? A. Yes, sir . As a part of that meeting did you advise Mr. Wood
Q.
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of his Miranda rights? A. Yes, I did . Prior to meeting with Wood had you also met, or
Q.
let me rephrase that; as part of that investigation did you also meet with inmate Jeffrey Schwartz? A. Yes, I did. At some point during your meeting with inmate
Q.
Wood - A.
Can I correct?
I think you said Jeffrey
Schwartz , I think his name is Bradley Schwartz.
Q.
Bradley.
My mistake , thank you.
I want to talk
about your meeting with inmate Wood, Jeffrey Wood; in the time that you had spent with him you had indicated you read him his Miranda rights; is that correct ? A. Yes, it is. And what happened after that, shortly thereafter? Well, short ly thereafter without provocation or
Q.
A.
encouragement from myself, Wood spontaneously asked, quote , how is he doing? Close quote.
Wood then said, quote, he didn't mean to hurt him, close quote, and that he struck the victim only with his hands.
Q.
A.
Did you document that information in your report? Yes, sir. Was there another investigator with you during
Q.
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that conversation you had with inmate Jeffrey Wood? A. Yes, sir, there was another investigator with me. As a follow -up with Bradley Schwartz, did you
Q.
compile a six photo ar ray, one of the photos being inmate Jeffrey Wood, to show to Bradley Schwartz ? A. Yes, I did. What was the purpose of doing that? That was the purpose , to obtain an identification
Q.
A.
of who the assailant might or could have been.
Q.
And did Mr. Schwartz , Bradley Schwartz select a
person in that six pack ar ray? A. Yes, he did . How did he describe that? Pardon me ? Who did he pick? He selected the defendant, Mr. Wood. Are you aware of Bradley Schwartz receiving
Q.
A.
Q.
A.
Q.
medical treatment for the injuries he received? A. Yes, sir . Do you recall him receiving or being sent to a
Q.
hospital outside the Department of Corrections? A. Yes, sir. Do you know which hospital he was sent to? Saint Mary's, and then to Maricopa Medical
Q.
A. Center.
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Q.
Do you know if he was sent back to Maricopa for
follow-up medical treatment? A. Yes, sir , he was. MR. KLEIN: object. Judge, excuse me, I am going to
Can we approach?
((Whereupon there is an on-the-record bench conference.))
MR. KLEIN: on hearsay.
Number one, his information is based
Number two, Schwartz actually went up to One
Maricopa County Medical Center for several reasons .
was on this occasion but there are also other times he went up that were totally unrelated to this in connection with his back and he ultimate ly had some sort of cervical surgery, I believe . hearsay. THE COURT: MR. DIEBOLT: THE COURT: witness. MR. DIEBOLT: Right. Where are you g oing with it? I am done with it. He doesn't seem to be the right So I object to the form and also to
((End of bench conference.))
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I have .
MR. DIEBOLT:
Q.
As part of the investigation did you do
interviews with different corrections officers who may have some knowledge? A. Yes, I did. Did you document, basically summarize what the
Q.
information was that was provided to you by the corrections officers? A. Yes, sir. And is inmate Jeff Wood in the courtroom today? Yes, sir . Where is he sitting, what he is wearing? He is sitting at the defendant's table. In the middle? Pardon me ? Is he in the middle? Yes, sir, he is. MR. DIEBOLT: Thank you , that's all the questions
Q.
A.
Q.
A.
Q.
A.
Q.
A.
THE COURT: MR. KLEIN:
You may cross, Mr. Klein. Thank you, Your Honor.
CROSS EXAMINATION MR. KLEIN:
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Q.
A.
Good morning, Mr. Friedlander . Good morning. How are you doing? Just fine, and you? Thank you, I am doing well. Good. The first person that you actually interviewed as
Q.
A.
Q.
A.
Q.
part of your investigation of this w hole incident was Jeffrey Wood, right? A. I must check my report. Sure. Yes, sir , I believe that's correct. And that was on October 9th of 2008? That's correct . And without any prompting from you, the first
Q.
A.
Q.
A.
Q.
thing he said, basically the first thing that he said to you was, how is he doing, right? A. He said, how is he doing, that's correct. And the he that he was referring to, given the
Q.
context of the meeting, was Mr. Schwartz, right? A. Correct. And he told you that he didn't mean to hurt
Q.
Mr. Schwartz, right? A. That's correct . Okay. Then the next day you wound up
Q.
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interviewing Mr. Schwartz, right? A. Correct. That was on October 10th of 2008? That's correct . And you have sort of summarized your interview
Q.
A.
Q.
with him in your report, correct ? A. Correct. Have you also had an opportunity to review a
Q.
transcript of your interview with Mr. Schwartz? A. No, I don't believe so. Okay. Let me see if I can find it hopefully for
Q.
you.
I am going to show you what has been marked for
identification as defendant's exhibit O, if you would look through that and tell me if you recognize it, please. A. This appears to a transcript of my interview with
Mr. Schwartz.
Q.
A.
That was on October 10th, 2008? Yes, sir . So what, roughly, well, less than a month after
Q.
this whole encounter took place, right? A. Correct. When you talked with Mr. Schwartz did he respond
Q.
to your questions ? A. Yes, he did . Did he appear to have any difficulty
Q.
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understanding your questions? A. I don't remember . Let me ask you , number one , during your entire
Q.
interview with him did he ever tell you that during this encounter with Mr. Wood, Mr. Wood called him any type of derogatory names? A. I would have to check the transcript. Feel free to do that. The transcript indicates that Mr. Schwartz did
Q.
A.
not say anything regarding any comments Mr. Wood made.
Q.
Okay.
And when you were talking with him you
were basically asking him to tell you what happened? A. That's correct . Now I think you told Mr. Diebolt that during your
Q.
investigation you also interviewed some corrections officers , right? A. Correct. How many corrections officers do you think you
Q.
wound up interviewing in connection with this ? A. I would have to refer to my report. I mean just as a ballpark estimate, more than
Q.
five? A.
I believe so. Was one of your reasons for interviewing them to
Q.
find out what happened to Mr. Wood's pants?
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A.
Yes, that's correct. And was one of the reasons for talking with some
Q.
of these c orrections officers and sergeants to find out what happened to Mr. Wood's shoes? A. That's correct . And was the reason you were trying to do that to
Q.
see if they could be located? A. Correct. And was one of the reasons that you wanted to see
Q.
if they could be located was to see if stains could be tested on them ? A. Correct. Because, well, we didn't go into your background
Q.
but in addition to being a special investigator for the Department of Corrections, you have also worked in law enforcement outside of the c orrectional system? A. Correct. I believe you worked as a detective in the State
Q.
of Florida? A. For several years. So you appreciate the importance of doing
Q.
follow-up investigation in a criminal investigation? A. Yes. And in particular testing for the presence of
Q.
blood ?
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A.
Yes. On various pieces of evidence ? Yes. And testing to see if it can be determined if
Q.
A.
Q.
something is blood, or whether it is the blood of someone in particular, right ? A. Yes. Okay. And during your investigation you had some
Q.
photographs , didn't you, that were taken the day of the encounter between Mr. Wood and Mr. Schwartz? A. I was provided with photographs. Let me show you defendant's U, T and S and ask
Q.
you if you recognize these as three of the photographs that you reviewed in your investigation? A. Yes, that's correct. Okay. And would you agree with me those
Q.
photographs appear to show some sort of stains on the shoes and a little bit on the pants? A. Yes. And so you were trying to locate the pants and
Q.
the shoes to see if they could be, if the stains could be tested to see if they were actually blood, right? A. Correct. And if they were blood, to see if they were
Q.
Bradley Schwartz's blood, correct?
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A.
Yes. But you were not able to find the shoes or the
Q.
pants ? A.
That's correct . So obviously then no testing has been done? Correct. And we don't know whether those stains are in
Q.
A.
Q.
fact blood, correct? A. I don't know . And you don't know whether if they are blood
Q.
whether they are Bradley Schwartz's blood? A. That's correct . From your investigation and your talking with
Q.
numerous corrections officers , do you know whether any corrections officer had Mr. Wood remove his clothes to look for physical injuries underneath his clothing? A. I do not. When you testified about showing Mr. Schwartz the
Q.
photographic lineup? A. Yes. When was that done? I would have to check my report. Sure. I will take those photographs from you.
Q.
A.
Q.
A.
April 15th, 2009. So that was roughly almost seven months after the
Q.
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whole encounter took place ? A. Correct. And I don't know that I specifically asked you You don't
Q.
these questions so let me just go through them.
know whether any c orrections officer took Mr. Wood's shoes or pants ; is that correct? A. That's correct . If they were taken, they have apparently been
Q.
misplaced by the Department of Corrections? A. I presume so. MR. KLEIN: Your Honor. THE COURT: Redirect , Mr. Diebolt. I don't have any other questions ,
REDIRECT EXAMINATION MR. DIEBOLT:
Q.
Investigator Friedlander, were you aware of any
injuries to the defendant, Mr. Wood? A. No, sir. Did you receive any reports that he went to
Q.
medical or was treated for anything ? A. No, sir. Is it true based on the investigation that it
Q.
revealed that inmate Wood admitted to you that he had done
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this assault? A. Yes, sir. He also admitted to another officer that he had
Q.
done the assault? A. Yes, sir. In addition to that, inmate Wood is picked out of
Q.
a six pack lineup by Mr. Schwartz? A. Correct. During the conversation or during the time when
Q.
you had a meeting with inmate Wood, did he ever say to you anything about Schwartz attacking him? A. No, sir. Did he ever say that Schwartz hit him on swung at
Q.
him? A.
No, sir. MR. DIEBOLT: THE COURT: That's all I have , thank you. Does the jury have any questions of
this witness?
If counsel would approach.
THE COURT: MR. DIEBOLT: MR. KLEIN:
Showing you question number one. That's fine. Yes, I have no problem with that, I
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would like to do follow-up. THE COURT: Okay.
THE COURT:
Mr. Friedlander, the jury asked this Why was
question to respond to if you know the answer.
the victim Schwartz transported from Saint Mary's to Maricopa Medical Center and not just treated at Saint Mary's? THE WITNESS: The information I have is that his
injuries may have been too serious to be treated at Saint Mary's. THE COURT: MR. KLEIN: Any follow-up questions ? Yes, Judge, if I may.
RECROSS EXAMINATION MR. KLEIN:
Q.
Investigator Friedlander, when you say the
information that you had, did you wind up receiving medical records from both of the se facilities? A. Yes, I did. And so the information that you had basically
Q.
would refer to your review of the medical records?
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A. extent.
I did not review the medical records to any
Q.
Did you review the medical records to the extent
of seeing that the doctor at Saint Mary's told staff that he was refusing to work on Dr. Schwartz because he had had prior -MR. DIEBOLT: question . THE COURT: MR. KLEIN: Sustained. Objection to the nature of the
Q.
Did you review any part of the Saint Mary's
report that dealt with the doctor, and I believe his name is Dr. Emami; do you remember reading anything from the report concerning Dr. Emami? A. No, sir. MR. KLEIN: then. THE COURT: you are excused. Thank you, sir, you may step down, I don't have any other questions
Mr. Diebolt, does the State have
additional evidence? MR. DIEBOLT: The State would rest at this time
subject to, and I believe I have reviewed the exhibit list but subject to a review of that I would rest. THE COURT: Very well. That means, Ladies and
Gentlemen, that you have heard all the evidence that the
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State intends to present in its case in chief.
As we told
you at the start of the trial, the defense has no obligation to present any evidence but they have the opportunity to do so. Mr. Klein, does the defense wish to present evidence ? MR. KLEIN: THE COURT: MR. KLEIN: Yes, we do, Your Honor. You may call your first witness. Brad Roach.
Your Honor, Mr. Roach is not here yet, we can proceed with Nurse Quattlebaum. THE COURT: You may proceed, Ms. Bensley.
NURSE QUATTLEBAUM having been duly sworn, takes the witness stand and testifies as follows.
DIRECT EXAMINATION MS. BENSLEY:
Q.
A.
Would you please introduce yourself to the jury . My name is Lynn Marie Quattlebaum. Can you spell your last name for the court
Q.
reporter . A.
It is Q. U. A. T. T. L. E. B. As in boy A. U. M.
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Q.
A.
What is your employment , where do you work? I'm a licensed practical nurse at the Pima County
State or the state prison.
Q.
A.
At the Department of Corrections ? At the Department of Corrections . How long have you been employed in that capacity? Just about five years. On September 27th, 2008, where were you employed? I was employed at the state prison. That was as a licensed practical nurse? Yes. You became aware of an incident involving Bradley
Q.
A.
Q.
A.
Q.
A.
Q.
Schwartz and another inmate on September 27th, 2008? A. Yes, I did. When you arrived on scene what did you initially
Q.
A.
First what we do is assess who was involved in
When I arrived on the scene the only one in the
immediate area was Mr. Schwartz.
Q.
A.
Was he at that point treated at the scene ? We do an initial assessment there and then we
bring them back up to our medical unit in the medical building .
Q.
How was Mr. Schwartz moved from the initial scene
to the medical unit?
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A.
They are escorted by security . You say escorted, was he on a stretcher, a wheel
Q.
chair , walking? A. He walked independently up to the unit. At that time were you able to make observations
Q.
about Mr. Schwartz's mental s tate or his orientation or anything like that ? A. We did that first at the scene by asking him
questions and making sure that he was alert and oriented . Mr. Schwartz was to person, place and time. he was, he answered questions well. He knew where
Q.
What did Mr. Schwartz tell you about his
consciousness or whether he lost consciousness? A. Mr. Schwartz said he did not lose consciousness. So he denied that happening? Correct. Was there any time that you were with
Q.
A.
Q.
Mr. Schwartz that he lost consciousness? A. time. Not at all. He was alert and oriented the entire
Q.
What did you do to care for the bleeding that was
in his nose and lower eye area? A. The first assessment site, we had just given him
a little bit of gauze to wipe at the nose and I then brought or they brought him up to West Medical. At that
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time he asked for something to put a cross his nose to kind of help him with, to stop the bleeding . And we gave him
what's called an A. D. D. or a thick gauze pad which he then put up to his nose.
Q.
applied? A.
What did Mr. Schwartz do once that gauze pad was
He actually blew his nose. What did that do to his eye? It forced the left eye forward or it protruded
Q.
A. forward.
Q.
A. socket.
What do you mean by protrude? It actually came forward almost out of the eye
Q.
A.
And you were able to see that? Yes. What had you already told Mr. Schwartz about
Q.
blowing his nose before he did that and blew his nose? A. In the hallway when I gave him the first set of We would
gauze I instructed him not to blow his nose.
prefer that they just apply pressure so that they don't cause any other damage or create any other problems. West Medical that's when he blew his nose. At
Q.
Were you surprised that he blew his nose based on
your understanding of his own medical experience? A. Yes. Very.
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Q.
A.
And why? Any time that you suspect that there is damage to
the bones around the eyes or even the nose itself, you do not blow your nose, that can create more damage or dislodge any fracture.
Q.
after ? A.
Did you tell him anything about blowing his nose
My comment to him actually was, you of all people
should know not to blow your nose in circumstances like this.
Q.
What warnings did you have to give Mr. Schwartz
related to that nose dressing and blowing his nose after you observed what he had done? A. I actually informed him if he was going to
persist in blowing the nose, that I would not give him anything to stop the bleeding .
Q.
What kind of comments was Mr. Schwartz making
regarding his medical care, was he giving you input? A. Yes. Mr. Schwartz actually at one point wanted Out at the prison we don't
to see what he looked like.
actually have regular mirrors but they have like a reflective device they use. We have one in the West And his comment
Medical Unit and I had given it to him.
to me was that he wanted his lawyer contacted and he wanted a plastic surgeon.
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Q.
Were you able to form an opinion about the amount Were you able to characterize it on I
of blood loss? guess a scale? A.
I would probably term it as moderate.
Initially
he was bleeding from the nose and from a wound to the left eye or eyebrow area. But by the time we had him up at
West Medical and then stabilized before the ambulance got there , there was no active bleeding .
Q.
So by the time you had him at West Medical,
that's the second unit, his condition had improved and there was no bleeding? A. Correct. Where was Mr. Schwartz taken after he was seen in
Q.
medical? A.
He was actually picked up directly from our unit
by the ambulance unit and they escort them or transport them to the hospital s. And when they were there and
taking a look at Mr. Schwartz , I actually asked them where they would be taking him. with Saint Mary's Hospital . was then sent to UMC. At the time we had contracts But anything deemed trauma
The paramedics checked with their
dispatcher to see where they felt Mr. Schwartz should go . MR. DIEBOLT: I will object to the narrative
nature, outside the scope. THE COURT: Sustained.
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MS. BENSLEY:
Q.
Where did he eventually end up being transported
To Saint Mary's Hospital. Are you aware that he was then transferred to
Q.
another hospital after Saint Mary's ? A. Yes, he was then transported to UMC. Do you know why? We assumed just the injuries. MR. DIEBOLT: I will object as to assumptions,
Q.
A.
THE COURT: MS. BENSLEY:
Sustained.
Q.
Were you aware at all that a doctor had refused
to treat him at that hospital ? MR. DIEBOLT: Objection to the form of the
THE COURT: MS. BENSLEY:
Sustained.
Q.
A.
What did Mr. Schwartz tell you about the assault? He didn't actually say anything to me. Was he able to tell you anything about who
Q.
attacked him? A. No. So he made no statements at all?
Q.
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A.
Correct. I am going to back you up. You said that at some
Q.
point he made a request for you to contact someone ? A. Yeah, he had requested that -MR. DIEBOLT: I am going to object as to the form
of the question, Judge, it's hearsay and non-medical treatment. THE COURT: MS. BENSLEY: Overruled.
Q.
A.
Go a head . He had requested that his lawyer be contacted and
a plastic surgeon.
Q.
Did Mr. Schwartz ask you to contact anybody else
beyond those two? A. No . MR. BENSLEY: THE COURT: I have no further questions , Judge. Any cross examination?
CROSS EXAMINATION MR. DIEBOLT:
Q.
Ms. Quattlebaum, when you first came on scene, is
it correct that there was blood coming from the nose and the left eye orbit of Mr. Schwartz? A. Yes.
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Q.
A.
And that he was assessed with mild dizziness ? Correct. Certainly the damage, there was damage to his
Q.
facial area ; is that fair to say ? A. Yes. And that damage wasn't due to him blowing his
Q.
nose? A.
No , the damage -He had been through some sort of trauma? Correct, trauma had already occurred. And you have been in the DOC system long enough
Q.
A.
Q.
that you could tell he had gotten beat up? A. Yes. And you had indicated by the time he left you or
Q.
your unit, both his eyes were swollen shut? A. Correct. And that's why he was transported, because of the
Q.
injuries to another medical facility other than your's? A. Correct. That was via ambulance, correct? Yes. Did you see the amount of blood that was in the
Q.
A.
Q.
hallway left behind? A. Yes, I did. Could you determine how much blood was in the
Q.
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hallway? A. sphere. It would be an approximation. Most of it was
He had one area of pooled blood where he was
kneeling which was from the nose bleed.
Q.
correct? A.
But you don't know how much in volume he lost, You wouldn't know that answer? It would be a moderate estimation. MR. DIEBOLT: Okay. That's fine. That's all I
have, thank you . THE COURT: Redirect , Ms. Bensley.
REDIRECT EXAMINATION MR. BENSLEY:
Q.
Would you say from your experience and training
and what you have observed , that injuries to the nose area bleed alot or bleed more than other injuries ? A. Yes they do. MS. BENSLEY: THE COURT: I have nothing further. Questions by any members of the jury?
Thank you , ma'am, you may step down , you are excused. Defense may call its next witness. MR. KLEIN: Roach . Thank you, Your Honor. We call Brad
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KLEIN:
BRAD ROACH having been duly sworn, takes the witness stand and testifies as follows.
DIRECT EXAMINATION
Q.
Good morning.
Could you tell the members of the
jury your name . A. My name is Brad Roach. Excuse me, I have got a I have got water up
bit of a weird voice from a cold. here.
Q.
Mr. Roach, can you tell the members of the jury
your occupation. A. I'm an attorney here in Tucson. How long have you been an attorney? I was admitted to the bar in 1996. And are you in public practice or private
Q.
A.
Q.
practice now? A. years . I am in private practice for the last seven
Q.
A.
Before that where did you work? I worked at the Pima County Attorney's Office I
think from '97 to 2005.
Q.
Let me ask you this first off.
Have you ever
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represented Bradley Schwartz? A. No . Do you know Bradley Schwartz? Yes, I do. Could you tell the members of the jury how you
Q.
A.
Q.
know him? A.
I was trying to think of the dates but I knew him
through, he dated a friend of mine for a number of years . And so I want to say that the incident that he got caught up with was in October of 2004. So I probably k new him
for about two years before then in 2002 to 2004.
Q.
A.
And did you socialize with him on occasion? Yes. I don't know how many times that we hung
out, he's been to my house at least twice and then we have probably been to other social occasions a number of times.
Q.
And in the course of knowing him and over the
last years have you talked with other people concerning him? A. Yes, many. And as a result of your personal experiences with
Q.
Mr. Schwartz, have you developed an opinion about his characte r for honesty? A. Yes. And as a result of talking with other people in
Q.
the community, have you developed an opinion about his
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reputation for honesty? A. Yes. And let's stick with that for a second. Could
Q.
you tell the members of the jury what your opinion of his character and his reputation for honesty is? A. My opinion of his ability to be honest is, how
shall I put it , is limited if not, I am not sure he's capable of being honest.
Q.
A.
Okay. If that makes sense. And in connection with your personal experience
Q.
with him , have you developed an opinion about his character for aggressiveness? A. Yes. And in the course of your conversations with
Q.
other people in the community have you -MR. DIEBOLT: I am going to object to this area It is not an
of questioning as to aggressiveness , Judge. element of anything. THE COURT: MR. KLEIN: THE COURT:
Pertinent trait, overruled . Thank you. Counsel, you are going to have to I
think be a little more specific as to physical. MR. KLEIN: THE COURT: I'm sorry? The type of aggressiveness, I think.
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MR. KLEIN:
Oh, okay. Have you developed an
Q.
Let me back track a second.
opinion based on your own personal experiences about his character for physical aggressiveness? A. Yes. And in the course of your discussions with other
Q.
people in the community , have you developed an opinion about his reputation for physical aggressive ness? A. Yes. What is your opinion about his character and his
Q.
reputation for physical aggressiveness? A. Brad Schwartz is not the kind of guy who is going That's not the
to go and get in bar f ights every weekend. kind of aggressiveness he has.
If he has the ability to
overcome someone physically because he wants to get something from them, he will do it. But, so it's a
limited, it is not that he is a fighter, the kind of guy that just walks around and beats people up. aggressiveness to get, as a goal to an end. He only uses
Q.
So when you say as a goal to an end, when you
first described it you said if he wanted to get something from the other person; is it just limited to that or is it more general, or is it like you said secondary to a goal ? A. If he can get a benefit , basically. That relates
to what I was talking about in regard to honesty. He will
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tell you his name and date of birth but if he believes that he can obtain something by being dishonest , he will do that at the drop of a hat. use of physical violence. MR. KLEIN: Your Honor. THE COURT: Cross examination . I don't have any other questions, And the same thing with the
Q.
Mr. Roach, we worked together for a period of
time, correct? A. Yes. And for a period of time you had a bright career
Q.
at the Pima County Attorney's Office, correct? A. I thought so. Short but brilliant? I liked the job. And you didn't leave the job because you, let me You left that position ?
Q.
A.
Q.
rephrase that. A. Yes.
Q.
A.
Not because you wanted to? No , I quit. Can you explain that?
Q.
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A.
But I agree , I didn't want to quit. You didn't want to quit but you did quit? Yes. But prior to quitting, there was a little period
Q.
A.
Q.
of time where you were asked to leave? A. There was a time, I was served with, the way the
County Attorney's Office worked, like alot of public agencies if you want to fire somebody who works there, you have got to follow certain procedures. So I was served
with a notice of intent to terminate by Barbara LaWall right after November , December of 2004.
Q.
There was a w hole process involved and there was
time, energy, stress , money involved and ultimately everything settled down somewhat ? A. Yes, it was long and arduous and then it settled
down eventually.
Q.
A.
Kind of a mess for you and others? Very personally a mess for me. And as you sit here today you haven't changed
Q.
your mind that the cause of that mess was Bradley Schwartz ? A. In part, in great part? If Schwartz hadn't done what he had done, none of
that would have occurred, I agree.
Q.
So in essence to tie them together, he was a
large part of you not working as a prosecutor at the Pima
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County Attorney's Office? A. I don't mean to be -Technical? To wiggle but if he hadn't done what he did, none But the problem I had with So.
Q.
A.
of that would have happened.
the County Attorney's Office was with Barbara LaWall.
Q.
A.
The elected official? Correct. But that problem was based on all that mess? Yes, exactly. And that mess was Brad Schwartz? Was caused by Brad Schwartz, absolutely. And the opinion that you are rendering right now
Q.
A.
Q.
A.
Q.
is from 2003 and 2004, I mean this dating wasn't for years , it was for maybe less than a two year period, right? A. I think . I would guess less than two years.
It's been a long time.
Q.
So you are talking about your opinions from 2003,
2004 or a little bit before 2003/2004? A. And then during the whole incident that occurred
with him and then there was a trial and there was alot of publicity, I was approached by people after that but so we're talking 2005. But since probably --
Q.
Well, you haven't had any direct contact or
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communications? A. No. I have not seen Brad Schwartz since well
before November of 2004.
Q.
I think you said earlier that he's not a fighter,
like he's not going to walk up to someone and start punching someone? A. No . He's a little doctor? Yeah, absolutely, he would not, I can't imagine
Q.
A.
under any circumstances him getting into a bar f ight and puffing out his chest like you see guys do. That's not
the kind of thing he would do, at least I don't think so.
Q.
Certainly around that time that we are talking
about back around 2003/2004, you were aware that he was getting prescriptions for oxycodone and taking those like candy ? A. Yes, that's true. MR. DIEBOLT: THE COURT: MR. KLEIN: Thank you, that's all I have. Any redirect? Yes.
REDIRECT EXAMINATION MR. KLEIN:
Q.
Mr. Roach, is your opinion concerning
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Mr. Schwartz's character for an incapacity to tell the truth the result of anger because you quit the County Attorney's Office ? A. No . I mean I definitely do not like him and you
could say I have anger with him sometime or another, but the kind of things that, I had problems with the guy way before the thing that got in the newspaper and caused all these problems , because of the way he treated my friend that he was dating and other things. So I had had long talks with her way before this happened about, hey, look, this is not a person that you want, you know, I had had this opinion before any of that happened and then the final event was just kind of proof .
Q.
And is the same true regarding your opinion
concerning his character and reputation for physical aggressiveness? A. In other words, it's --
It's not caused by my anger towards him, is that
the question?
Q.
A.
Yes? No . I mean given what he eventually had problems
with, and then the way he treated my friend that he was dating, a female, that's where I come up or that's where I developed my opinion.
Q.
A.
Do you like what you are doing now? You know , I was a prosecutor and I really, really
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liked it.
And then I didn't expect to become a defense
attorney and like it that much, but I actually do.
Q.
So he's not pushed, his behavior and your
quitting the County Attorney's Office hasn't pushed you into the depths of depression in your employment? A. No. I mean everything happens for a reason. The
world works and bad things may occur and then you look at it later and you go, hey, that was something that changed my life and I actually like where I am right now alot, so. MR. KLEIN: THE COURT: witness? excused. THE WITNESS: Thank you , Your Honor. I don't have any other questions . Jury have any questions of this
Thank you , Mr. Roach, you may step down, you are
THE COURT: The defense may call its next witness. MR. KLEIN: Rayot . Thank you , Your Honor. We call Sian
OFFICER SIAN RAYOT having been duly sworn, takes the witness stand and testifies as follows.
DIRECT EXAMINATION MR. KLEIN:
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Q.
Good morning, Ms. Rayot, would you please tell
the members of the jury your name . A. Sure. My name is Sian Rayot.
Q.
A.
And are you employed ? Yes, I am. Where do you work? For the Department of Corrections, Arizona
Q.
A.
Department of Corrections.
Q.
How long have you worked for the Department of
Corrections ? A. years . For about three and a half years, almost four
Q.
And are you assigned to a particular facility
within the Department of Corrections? A. Yes, the Tucson complex . And were you working there back on September
Q.
27th, 2008? A. Yes, I was . And what type of work did you do for the
Q.
Department of Corrections back on September 27th, 2008? A. I'm a corrections officer and I was then too . Were you as signed on that day to a particular
Q.
unit as a corrections officer ? A. Yes. What unit was that?
Q.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him? day.
A.
Rincon. And did you have particular duties on September
Q.
27th of 2008? A. Just our regular duties that we normally do every
Q.
On September 27th, 2008, did you come in contact
with an inmate by the name of Bradley Schwartz? A. Yes, I did . Can you tell the members of the jury how you came
Q.
into contact with him? A. Sure. There was a situation that happened which Basically when that goes off we have
we call an I. C. S.
to get to where the area is at and at that time that's when I saw Mr. Schwartz .
Q.
Okay.
And did you have any interactions with
A.
Not at that time. At some point later did you ? Yes. What did you do with Mr. Schwartz later on? I was one of the transport officers . And can you tell the members of the jury what a
Q.
A.
Q.
A.
Q.
transport officer is? A. Sure. When an inmate is injured , what we do is ,
if the medical staff at the complex tells us that we have
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to take them to the hospital, then we are the transport officers that take him to the hospital to insure his safety and the public's safety.
Q.
Now when he was taken to the hospital, which
hospital did he go to? A. We went to Saint Mary's . Did you go in a Department of Corrections '
Q.
vehicle or some other vehicle ? A. I was in the ambulance with him. Okay. And while you were in the ambulance with
Q.
him, can you tell the members of the jury how he appeared to you mentally? A. He was not all there. He was not very coherent .
You could tell he was in alot of pain.
Q.
And did he appear to you when he was in the
ambulance to understand why he was even in an ambulance? A. At that time, no, he didn't understand why he was
in an ambulance.
Q.
A.
Did you eventually go to Saint Mary's Hospital? Yes. And did you follow him around while he was in
Q.
Saint Mary's Hospital? A. Yes, we have to be with him at all times. So did you hear him interact with doctors at
Q.
Saint Mary's Hospital?
44
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him. do?
A.
Yes, I did. Can you tell the members of the jury how he
Q.
interacted with the doctors? A. Basically he was, his interactions were stating
that, he was kind of self diagnosing himself and he was telling them that he was in pain, kind of telling them what he thought needed to be done to him, what kind of medications and things like that .
Q.
He was giving doctors directions about what to
A.
Yes. Did that seem different in terms of his mental
Q.
state from the way he was behaving and the way he was in the ambulance? A. A little bit. I mean he was a little more lucid
at that point, more concerned with himself.
Q.
And at some point did he wind up going to
Maricopa County Medical Center? A. Yes, he did . How did he get there? By helicopter. Did you go with him? Yes, I was on the helicopter that transported
Q.
A.
Q.
A.
Q.
And was there another officer involved with you
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in the transportation up to Maricopa County? A. Yes, there was . Who was that? Officer Chiaravallo. And can you explain to the members of the jury
Q.
A.
Q.
how Officer Chiaravallo was involved? A. Sure. When we have to transport inmates to the Only
hospital , there are usually two officers that go.
one can ride in the helicopter, so Officer Chiaravallo had to follow in a state transport vehicle up to Maricopa County then to pick me up. basically. Or he followed us up,
Q.
And did you remain with Mr. Schwartz during the
preliminary stages of his time at Maricopa County Medical Center? A. Yes. Did he continue to give instructions to medical
Q.
personnel up there? A. Yes, he did . Do you know why Mr. Schwartz was transported from
Q.
Saint Mary's Hospital to Maricopa County? A. He was transported, the reason I was told he was
transported -MR. DIEBOLT: THE COURT: Objection.
Sustained.
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MR. KLEIN:
Q.
A.
Do you know of your own personal knowledge? Only from what I heard from the doctors and the
security that was at the hospital.
Q.
Okay.
Now was this the first encounter that you
had ever had with Mr . Schwartz? A. No, I had had previous contact. In fact did you have a conversation with
Q.
Mr. Schwartz roughly a week or so before September 27th? A. Yes, I did . Do you remember what that contact with Mr.
Q.
Schwartz was about? A. Yes, I do. Could you tell the members of the jury what it
Q.
was about? A. Sure. There was another officer and myself that
had not necessarily a meeting but we asked Mr. Schwartz to come in to talk to us. He was saying basically that he
didn't want to do what we call PC, which is protective custody off of a yard, he felt that he didn't need that, that he didn't want that at all. And we were kind of
encouraging him to go that route because he was complaining he was having people threatening him, basically.
Q.
But, so you were trying to encourage him to do
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that and he was saying he didn't want to do that? A. Exactly. Did he make some comment to you about the
Q.
responsibility of the Department of Corrections ? A. Yes, he felt that it was our responsibility to
protect all inmates no matter what. MR. KLEIN: questions. THE COURT: Cross examination. Okay, I don't have any other
Q.
Officer, what is protective custody , how is that
different from general population? A. Well, if they are being threatened by other
inmates, a lot of times they will come to an officer or some staff.
Q.
I mean what is it, if I want to go into
protective custody where do you take me? A. Oh, we take you basically to a lock-down unit
where you are in a c ell by yourself where you are not really going to have contact with very many other inmates.
Q.
So you have no contact with anyone else other
than corrections officers ?
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A.
That's correct. You are in a lock-down situation? Yes. You don't have access to the yard? Exactly. How long do you get out? Really one hour a day maybe. I mean DOC is restrictive but lock-down, PC is
Q.
A.
Q.
A.
Q.
A.
Q.
really restrictive? A. Exactly, very restrictive. Not fun? Not at all. Not fun to be in prison in the first place but if
Q.
A.
Q.
you do PC you are in a little box? A. Exactly. But Schwartz did tell you he did didn't want to
Q.
go back on the yard? A. Well, he was, he didn't necessarily say that he
didn't want to go on the yard, he just felt that he shouldn't have to -- I'm sorry.
Q.
A.
The regular yard I'm talking about? Yes, he didn't want to go on the regular yard at
all, on the GP yard, yes.
Q.
And when he said that, he said he was afraid for
his life , that he would be beaten up, that's why he didn't
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want to go to the regular yard? A. That's correct . MR. DIEBOLT: you very much . THE COURT: Redirect . I think that's all I have, thank
REDIRECT EXAMINATION MR. KLEIN:
Q.
Officer Rayot, if Mr. Schwartz was on unit six or
housing unit six in the Rincon unit back in September of 2008, was that considered general population or was it a hybrid? A. It actually wasn't considered general population
at that time.
Q.
A.
Can you ex plain to the jury why not? It was considered kind of a protective custody Where we didn't have these guys
house type situation .
necessarily mingle with the general population.
Q.
Okay.
So it wasn't a situation where, I should
say it wasn't a situation where he was only able to get access for an hour a day if he was in unit six? A. Exactly, in that house he had more time to be out
of a cell. MR. KLEIN: Thank you, I don't have any other
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questions. THE COURT: this witness? Thank you , ma'am, you may step down, you are excused. Defense may call its next witness. MR. KLEIN: Judge, I apologize, our next witness Does the jury have any questions of
was subpoenaed to come in at 1:30 today. THE COURT: Very well . Then Ladies and
Gentlemen, I guess what we will do is we will break early for lunch to accommodate the witness's schedule . you to return to the c ourthouse at 1:25. So I ask
And during the
recess remember not to discuss the case with each other or with anyone else. your last witness ? MR. KLEIN: THE COURT: Yes, Judge. So as you can tell, the case will go So we are well on schedule . So we Keep an open mind. And will that be
to you this afternoon.
will see you back at 1 :25. The record will show the absence of the jury, the presence of counsel and the defendant. Counsel, I think we should take this time to ad dress the jury instructions . I know you just had them
handed to you this morning , the latest version of the Court's final instructions . They are the same as
originally distributed except for the addition to
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instruction ten, which more or less reflects the defense of self defense . So otherwise they are, they don't differ from what you had before. And as soon as you have had an
opportunity to check them out , I will ask the defense to make whatever record you would like to make . MR. KLEIN: Thank you, Judge. Judge, I have had
a chance to review them.
And in connection with Court's
instruction number one, the only objection that I have to it is that it does not make any reference to the jury being able to consider reasonable inferences that may be drawn from the evidence . So what I would be requesting is that in the second sentence in the second paragraph, that it be modified to say, when I say evidence, I mean the testimony of witnesses and the exhibits that have been introduced during the trial, as well as reasonable inferences that may be drawn from the testimony and exhibits . THE COURT: The Court declines to make that
modification, you can certainly argue that but the Court's giving one as it is written. MR. KLEIN: If I may respond, Your Honor. As the
Court well knows, if I make that argument and it's not in the instructions, the essence of the instructions is that they're not to consider my argument .
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I object to number two.
Number one , I would
request in lieu of that that the Court give defense number one which is the standard RAJI instruction. The
difficulty that I have with Court's instruction number two is that I believe that it unduly restricts how the jury may consider closing argument and opening statements as well. Obviously, in particular, for example when it says
that verdicts should be based not upon the lawyers ' statements but upon the evidence ; number one , it suggests that there may be a dichotomy between those two. And certainly a jury particularly, in light of the Court's ruling as to instruction number one , if I am making closing arguments and I ask the jury to draw reasonable inference s and if they agree with those reasonable inference s, this instruction basically says they may not consider those reasonable inferences and they may not base their verdict on those reasonable inferences. And I believe that the Court's instruction undermines the role of counsel in discussing the evidence and arguing reasonable inferences and is contrary to the decision of the Arizona Supreme Court in State versus West 176 432, State versus Daniel 136 Arizona 188; and State versus Dumaine 162 Arizona 392. THE COURT: I will wait for the Court of Appeals
to tell me that there is something wrong with that
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instruction , I will give two as it reads, and they have told me that in the past as you well know. MR. KLEIN: And as the Court knows, I am
objecting to the Court's instruction number three , the Portillo instruction . In lieu of that I would ask the
Court to give defense instruction 10. My objection to Portillo is three fold; basically all three arguments relate to the fact that Portillo reduces the burden of proof of the State in violation of due process and the 14th amendment to the United States constitution and Article two Section four of the Arizona constitution. The first way is it states, it refers to the civil cases and in so doing makes it sound like basically preponderance of the evidence is the same as clear and convincing evidence. It then says that proof beyond a And in so doing it
reasonable doubt is more than that.
reduces proof beyond a reasonable doubt to something much closer to clear and convincing evidence. Secondly, it equates proof beyond a reasonable doubt with being firmly convinced. Historically, many,
many years ago firmly convinced was the language used to define clear and convincing evidence. And then finally in the last paragraph it says if you think that there is a real possibility that the
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defendant is not guilty, then you should find him not guilty. The Supreme Court has been trying to make jury
instructions less legalese and more comprehensible to ordinary individuals who serve on a jury, but when they say a real possibility, the ordinary juror is going to under stand that to mean it is very possible. By saying
that we have to show that it is very possible, they are reducing the State's burden of proof. THE COURT: I think instruction three reflects
the current status of the case law in Arizona and the Court will give number three over objection. MR. KLEIN: Number five, I have submitted our
instruction number 11 and the advantage that I think our instruction has is that it does not have the language of the next to the last sentence of the Court's instruction . The jurors may well not have even thought that simply because Mr. Wood has not testified he might be guilty , but when the Court 's instruction makes that reference, I believe that that could very easily put that thought into the juror's mind. THE COURT: So it's the last sentence, tell me
how you would modify it? MR. KLEIN: Basically to take out the next to the
last sentence, you must not conclude that the defendant is likely to be guilty because of his choices on these
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matters. THE COURT: MR. KLEIN: THE COURT: MR. KLEIN: You would like that removed? Yes. All right, the Court will do so. I object to instruction number eight. The second
I don't object to the first paragraph.
paragraph, however, is the only culpable mental s tate in which the Court says that it may be inferred, basically from circumstantial evidence, and by doing so, number one, it wrongfully suggests to the jury that that only applies to intent. And number two , it doesn't apply to the other culpable mental state. should be deleted. THE COURT: MR. KLEIN: The w hole second paragraph ? Yes. Okay. Any objection to that, Mr. So I believe that that paragraph
THE COURT: Diebolt? MR. DIEBOLT: THE COURT: eight . MR. DIEBOLT:
He wants to take it out? He wants paragraph two out of number
I think that is helpful to the jury
to make a decision, Judge. THE COURT: Well, I do, too. I think all of what
I proposed is helpful to the jury but counsel disagrees.
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MR. DIEBOLT:
It is up to you , Judge, but
obviously you need to define intent and that is a portion of the definition of intent. There is an intentional
infliction of injury and that's why it is important. THE COURT: MR. KLEIN: I am going to leave it as it is. I object to 10 B. Number one,
there's a typographical error in the first spelling of the defendant. But more importantly, I don't think it's a I believe that the law
correct statement of the law.
simply is if we present enough evidence to meet the requirement to justify a jury instruction , then the State's burden is to prove no self defense beyond a reasonable doubt. This instruction puts the burden on us
of showing by a preponderance of the evidence . MR. DIEBOLT: Judge, could we argue that whole
self defense ruling quickly? THE COURT: MR. DIEBOLT: Yes. Are you even giving an instruction?
There has to be some evidence and there's absolutely zero evidence of a self defense . to the contrary. that. THE COURT: Well, that's why we tell the jury Zero. Now there is evidence
There is nothing, not a word supporting
though, isn't it , that if the defense presents evidence, if they have presented evidence and I think a
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preponderance of the evidence is required by the statute. MR. DIEBOLT: It is only required if there is
evidence to support self defense , then the burden shifting kicks in . I don't care about the burden shifting, the
State proving that it is not self defense , but there has to be something. You just don't, otherwise we would give
self defense in every aggravated assault and we don't , we simply don't. There has to be something.
As a general rule I'm okay with self defense instructions if there's something to support it. nothing. There is
So my position is I don't think it should even
be given; therefore we shouldn't be talking about the nuances of it. THE COURT: position . All right, I understand your
Mr. Klein , how do you respond to the fact that
there is no factual basis in the evidence at this point to warrant the giving of a self defense instruction? MR. KLEIN: Well, there is sufficient evidence to
warrant giving the instruction; number one, we have the testimony of Mr. Roach that Mr. Schwartz is aggressive when it is to his benefit. lawsuit. We know that he has filed a
We know that immediately upon being treated by
the nurse he asked to have his lawyer contacted . We also know that Mr. Wood said, I didn't mean to hurt him. Well, why do you hit somebody if you don't mean
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to hurt them?
An inference that could be drawn from that
is that he hit him because he was responding to, he was acting in self defense. I mean you either hit somebody because you want to hurt them; or you hit somebody because you are protecting yourself. So when he says he didn't mean to
hurt him, that is evidence that he was acting in self defense. Plus the description that Mr. Schwartz gives of what happened does not match the physical evidence . could not have happened the way he said it happened. THE COURT: That may be but I don't recall any It
evidence at all indicating any act by the victim that would require reaction by the defendant. MR. KLEIN: Well, and that's why I say that the
circumstantial evidence is the basis for our request for a self defense instruction. THE COURT: And that would be the circumstantial
evidence that you just enumerated? MR. KLEIN: the major things. THE COURT: But none of that has to do with the Yes, among other things, those are
actual incident itself, those are not facts in evidence that relate to the actual occurrence. Those are
circumstantial things around what might have been the
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victim's motivation for perhaps exaggerating his condition or I don't know what else. MR. KLEIN: Court . But --
Well, I have to disagree with the
When Mr. Wood says I didn't intend to hurt him,
that relates specifically to the way in which the incident occurred . When Mr. Roach says -THE COURT: I don't think so, counsel. I don't
see how you get to that relates to self defense when he says in essence when I hit him I didn't mean to hurt him . That doesn't mean he was defending himself. That just
means perhaps he intended to do less damage than he did. MR. KLEIN: It means, it says I didn't mean to
hurt him; it means I didn't mean to do any damage. THE COURT: MR. KLEIN: How is that self defense? Because why else, like I said, I
think really the only two explanations for hitting somebody , and certainly if the Court or Mr. Diebolt can think of other explanations, that's fine, but you hit somebody to either hurt him or you hit somebody to protect yourself . Mr. Wood said, I didn't intend to hurt him . But I didn't
Not, I didn't intend to hurt him so much. intend to hurt him.
That then only leaves, I was responding to protect myself . THE COURT: Well, I guess it could be I intended
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to send a message.
I intended to insult him, it could be I mean there
alot of other reasons besides self defense .
is no evidence out of his mouth or anyone else's that there was any thought in his mind that he needed to protect himself. MR. KLEIN: Well, when you say it could be
evidence that he intended to insult him, et cetera , you are drawing an inference as to why he hit him. his statement and the information. Based on
When you draw that
inference, another inference that can be drawn is in fact that he acted to protect himself . THE COURT: Neither of those are inferences;
those are both pure speculation based on this record. MR. KLEIN: I am not sure what you mean by
neither, are you saying that the Court's statement that he -THE COURT: My statements about the possible
motive and your statements as to the motive are both pure speculation. MR. KLEIN: I disagree because you have to put
them in the context of what Mr. Roach had to say and you also have to put them in the context of the physical impossibility of what Mr. Schwartz had to say and in the context of his motive to show that the Department of Corrections wasn't providing him with adequate protection.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge.
THE COURT:
I don't see the connection between
any of those things and I think that Mr. Diebolt is right, I don't think there's really a factual basis that would warrant giving the instructions on the defense of self defense. Given the record that we have in this case at So the Court will not give a self defense
this point. instruction .
MR. KLEIN:
As to Court's instruction number 11 ,
I think the Court was drawing an inference from the allegation of aggravated assault that there must have been an allegation of dangerous nature , but there is not one so I would ask the Court to remove that. THE COURT: I thought that the State had alleged
that but I may be mistaken . MR. DIEBOLT: We have alleged a prior conviction
being one of a dangerous nature , that may have been the source. THE COURT: the removal of 11? MR. DIEBOLT: Yes, I don't think it is necessary, Okay. So you don't object either to
THE COURT:
And by the same token we don't need
that to be reflected in the form of verdict. MR. DIEBOLT: Correct. I think it only can be
dangerous if there is serious physical injury.
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THE COURT:
Number 11 is removed then.
Okay.
Mr . Klein, I'm sorry , go a head. MR. KLEIN: Your Honor, I object to the Court's
instruction number 15 and ask that in lieu of that, that the RAJI instruction on direct and circumstantial evidence be given . For example, in paragraph number two the Court
basically is saying on circumstantial evidence you must consider whether it's been, you must consider it in light of reason, experience and common sense. That's true.
But there's no basis for highlighting that, particularly as to circumstantial evidence. That's true
of all evidence and the Court gives that instruction in the general assessment of credibility of witnesses . But
to then highlight it as to circumstantial evidence I think is improper and so I would ask that the Court give the RAJI on circumstantial evidence. THE COURT: Well, so you want me to add, before
you decide a fact has been proved by circumstantial evidence or any other evidence, you must consider all of these . MR. KLEIN: certainly do that. Well, I think the Court could I don't think there is a need to do
that when the Court has already included in its credibility of witnesses that you assess credibility based on all the other evidence in the case.
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THE COURT:
So what it is that you want is to
remove the last sentence of the second paragraph? MR. KLEIN: objection. RAJI. That would take care of my specific
I think the easiest thing is to just give the
Because it basically says there are two types of
evidence , direct and circumstantial, the law makes no distinction between them, it just requires that you be convince d beyond a reasonable doubt before finding the defendant guilty. THE COURT: MR. KLEIN: What is your number, Mr. Klein? I actually don't have it in my packet
but I know that there is a RAJI for circumstantial evidence . hour. THE COURT: MR. KLEIN: Well, I will give it as it is . And my last objection is to I can provide it for the Court over the lunch
instruction number 18 and I would request the Court add a sentence to that, to clarify that even though exhibits may not have been admitted into evidence, when there is testimony about those exhibits the jury can consider the testimony about the exhibits. And what I would propose is that the Court instruct the jury in addition to its 18 and say, however if testimony was introduced regarding what an exhibit said or showed, you may consider that testimony even though the
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exhibit itself was not admitted. accurate statement of the law. THE COURT: for that ? MR. KLEIN: THE COURT:
I believe that's an
Did you submit such an instruction
Beg your pardon? Is that a submitted defense
instruction somewhere in your packet? MR. KLEIN: No, it is not and again I can write
it up and present it to the Court over the lunch hour . THE COURT: Okay. Mr. Diebolt, do you have
anything to say about 18? MR. DIEBOLT: It seems like it complicates it
more, Judge, but whatever you want to do, I am fine with. We have already told them to consider testimony so now we're telling them again to consider testimony. THE COURT: written. I am going to give 18 as it is
Anything else, Mr. Klein? MR. KLEIN: THE COURT: No, Your Honor . Mr. Diebolt, do you have any record
you want to make as to the instructions? MR. DIEBOLT: THE COURT: No, Judge, thank you. How about as to the form of verdict?
I am not sure you have that. MR. DIEBOLT: THE COURT: No. Let me show it to you. I have
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removed the dangerous nature interrogatory or will have it removed. MR. KLEIN: With the dangerous nature removed I
don't have any objection. THE COURT: All right. Thank you. Very well
then, the Court will be in recess until 1:25. MR. KLEIN: Rule 20 motion . THE COURT: MR. KLEIN: You can do it now then. Two points, Your Honor. Number one , At some point I would like to make a
and I don't know if this is minor but I don't believe that there was any witness who testified that this all occurred in Pima County . Number two, I think what the testimony shows is not temporary but substantial disfigurement but permanent injury. It is like g oing to trial on a charge of
residential burglary and the evidence showing that it is a non-residential structure. So for those reasons I would ask that the Court enter judgment of acquittal. And certainly the State is
not surprised by the nature of Mr. Schwartz's injuries. They have known about that since the filing of this case . It is improperly charged and therefore the case should be dismissed. THE COURT: Mr. Diebolt.
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MR. DIEBOLT:
Judge, I think he's asking for it
to be a serious physical injury case which makes it a class three which I am fine with. a three pursuant to 13.5 B. the testimony at trial. THE COURT: Well, it seems to me that as to the Move it from a four to
I move to amend to conform to
first part of the argument there was testimony that this was the Tucson unit of the Department of Corrections, so I think that has been satisfied , the jurisdiction of Pima County. As to the second, the aggravated assault instruction indicates that the assault must be aggravated by several different things and the last one is, or a fracture of any body part. We have fractures of the
facial bones so it seems to me that that satisfies the requirements of that particular offense. So the Rule 20 motion is denied. Anything else , counsel? MR. KLEIN: THE COURT: 1:30 then. No, Your Honor. The Court will be in recess until
((Whereupon the noon recess is taken and the trial resumes as follows.))
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prongs.
THE COURT:
The record will show the absence of Is
the jury , the presence of counsel and the defendant.
there anything we need to take up before we bring the jury back? MR. KLEIN: Yes, Your Honor, two matters. One
relating to the instructions.
I had indicated to the
Court that I would provide both the RAJI on circumstantial evidence and my requested modification of Court's number 18 . And I am providing them to the clerk, those two
instructions. In addition I neglected to formally in terms of making the record request that the Court give defendant's instruction number two, which is the Willits instruction . Particularly now with the ruling of the Court, that instruction is even more important and it is clear that we do have evidence that either was lost or failed to be preserved or was destroyed . And so I think it is
appropriate for the Court to give that instruction , that's our number two . THE COURT: to Willits? MR. DIEBOLT: Judge, there are actually three All right. Mr. Diebolt, with regard
I agree that the State , being the Department of And for
Corrections , had access to the pants and shoes. whatever reason they are missing .
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But the second two parts are, tend to exonerate the defendant. In light of the totality of the
circumstances, the evidence that we are talking about , there is no tendency to exonerate. makes admissions that he did it. None whatsoever. He
And even if he wouldn't
care whose blood is on there, he had no apparent injuries and the missing evidence has to result in prejudice to the defendant. While they have established prong one, they failed on prongs two and three, Judge, so there is no basis for a Willits instruction. THE COURT: Well, the Court agrees with the
State , especially with regard to the third prong, resulting in prejudice, given the admission that the assault occurred, so the Court will not give the Willits instruction . MR. KLEIN: The other matter relates to a
question that was asked by the jurors as to why Mr. Schwartz was transported from Saint Mary's Hospital to Maricopa County. What I would propose , since this came up
and we can't subpoena the doctor from Saint Mary's Hospital , Mr. Diebolt had marked as State's exhibit number 13 records from Saint Mary's Hospital. There is a 14 page
report entitled emergency documentation, and contained in that report is the explanation as to why he was
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transported up to Maricopa County Hospital.
It's only
basically on one page, I would be happy to just admit the one page but I think that might unduly highlight it. I
certainly believe that it would be appropriate to submit to the jury the entire 14 page emergency documentation to answer that question . THE COURT: MR. KLEIN: What is the gist of it, Mr. Klein? The gist of it is that there is a Dr.
Emami who was advised that Mr. Schwartz was a patient and he refused to treat Mr. Schwartz because he had previously been threatened by him. THE COURT: oath? MR. KLEIN: THE COURT: I can't say, Your Honor. But does it indicate that that's the What happened to the Hippocratic
only reason or was that just one of the reasons? MR. KLEIN: It indicates I think that that is There is a choice that was
basically one of the reasons.
basically having him go to University Medical Center and University Medical Center said they would rather have him go to Maricopa County. THE COURT: Well, I guess the essence of your
concern is, I have to guess here a little bit, that that would be an indication you think unfairly that it was a result of the seriousness of the injuries ?
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MR. KLEIN:
Well, I think that was the testimony.
And if I remember right I believe it was Investigator Friedlander where that became an issue . And I can show
the Court , it's page three of the 14 page emergency documentation. And the part that's particularly relevant
is the top third paragraph , I was informed that Dr. Emami, and so on. THE COURT: I think the most appropriate way to
address this, if we ad dress it at all, is simply through a stipulation that says that among the reasons that the victim was transported to the Maricopa Medical Center was the lack of physicians at Saint Mary's Hospital to treat the defendant. Because in essence that's what it is.
If you go beyond that, it gets into 403 problems. So it depends on how serious you think the current status of the evidence is. your client . MR. KLEIN: I don't know what Mr. Diebolt's Or how much prejudice there is to
position is regarding a stipulation . THE COURT: MR. DIEBOLT: Mr. Diebolt. Judge, I am not willing to It doesn't ad dress the It certainly could
stipulate, I think it confuses. issue .
There is no particular issue.
be contractual issues with DOC.
At UMC we have a level
one trauma unit, why wasn't he brought there, I mean it
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brings all kinds of stuff in and to focus on one part of it I don't think makes any sense , Judge. THE COURT: Well, it seems to me, and I don't
remember exactly but it seems to me that the defense in its examination of witnesses brought out the fact that there was an issue with doctors at Saint Mary's , I think I probably sustained an objection at some point . But it
seems like that information was brought out on either direct or cross examination of witnesses. MR. KLEIN: You are correct that we attempted to
bring it out and you are correct that the Court sustained the objection. THE COURT: Well, I assume you would like the
jury to know that the doctor said that he had been assaulted or threatened by the defendant, that is why he wouldn't treat him. Well, we are not going that far, and
so I am trying to accommodate you to the extent that the jury may be left with the impression that it was only because of the seriousness of the injuries that he was transported . MR. KLEIN: And perhaps a resolution that I think
would accurately s tate the reason without having 403 issues is that the physician at Saint Mary's Hospital refused to treat him, period. And then I guess the jury
can draw whatever inferences they want from that.
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MR. DIEBOLT:
Judge, I think there are several
factors that play into the reason he was transported, and I think one was there were probably more surgeons that could treat him at Maricopa because it is a different center for that type of trauma. The other may be a
contract ual one, it may have been a lack of physicians, we have several different reasons. And I am not real excited about giving them all the reasons for that . And if you want to say there were
several factors including the seriousness of his injuries that he was transported to Maricopa County, I can live with that. What I am saying is that we don't know that the seriousness of the injuries was not one factor that was being considered in the transport of him to Maricopa. Nobody can say that. If we can't say that, I say we a void
this issue with a stipulation from the Court . THE COURT: How about a stipulation to the effect
that the victim in this case was transported from Saint Mary's Hospital to the Maricopa Medical Center based on several factors including the availability of treating physicians at that facility. MR. KLEIN: Well, I don't think that that
accurately reflects and conveys to the jury the reason. If you wanted to say the availability of physicians
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because the physician at Saint Mary's refused to treat him, that's accurate . But where jurors ask the question and where the answer is actually given in those records , I think it is accurate to say the availability of physicians due to the refusal of the physician at Saint Mary's to treat him . And then Mr. Diebolt can argue if he wants to that that's because of the seriousness of the injuries, but that is an accurate statement without any 403 issues. THE COURT: But what is the probative value of That's
saying that the doctor refused to treat him? legitimate? MR. KLEIN: Pardon? THE COURT: MR. KLEIN: juror's question. being appropriate . THE COURT: MR. KLEIN: THE COURT: MR. KLEIN:
The legitimate probative value? Because it was responding to the We accepted the juror's question as We asked the witness -With your concurrence. Yes, and the State's . Yes. And so we asked the question and
basically as it stands now the jury has an inaccurate answer. Another way to resolve this is I would ask for a stay of the proceedings and I can subpoena Dr. Emami to
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explain why Mr. Schwartz was transferred to Maricopa County. THE COURT: I wouldn't let it in in that form
either, it still has an overly prejudicial problem of 403. So what we need to do is, you can enumerate all the issues, all the reasons why without saying the doctor refused to treat him, but the fact is there was nobody who was available to treat him at Saint Mary's, and that's as much as is going to come in on that. MR. DIEBOLT: The way the Court had just read it
a moment ago, the latest suggestion , I want to be clear I am fine with that . THE COURT: The one you read just a moment ago. Well, it doesn't emphasize the
seriousness of the injuries, it just says that there were not physicians available to treat him. MR. DIEBOLT: part of your -THE COURT: Yes, that there were other factors. You said other factors, though, was
And I am not going to continue the proceedings to call a witness that could have been called before. There were
other witnesses who could have been asked this I assume, so we are in an awkward position now because we have one witness left and apparently that witness won't be able to add anything. Besides that there is no real point here except
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that there were a number of reasons that he was transported . It wasn't just because of the seriousness of
his injuries and it wasn't just because there wasn't a physician there to treat him. Any other record either of you wish to make? would propose to read that stipulation to the jury. will state it again. The victim in this case was I And I
transported from Saint Mary's Hospital to the Maricopa Medical Center based on several factors, including the availability of treating physicians at that facility. If you don't want that stipulation or if either of you disagree, then I won't give it. be where we are. MR. KLEIN: Then I would ask the Court not to And then we will
give that stipulation. THE COURT: jury. THE BAILIFF: THE COURT: Your Honor, the jury. Please be seated. The record will Very well . You may bring in the
show the presence of the jury, counsel and the defendant. Defense may call its next witness. MS. BENSLEY: The defense calls Department of
Corrections Officer Chiaravallo.
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OFFICER CHIARAVALLO having been duly sworn, takes the witness stand and testifies as follows.
DIRECT EXAMINATION MS. BENSLEY:
Q.
A.
Sir, can you introduce yourself to the jury. I'm Officer Chiaravallo. Who are you employed by? The Arizona Department of Corrections. And what is your position at the Department of
Q.
A.
Q.
Corrections ? A. I'm a CO-2, correctional officer two. Are you assigned to a particular facility ? I was as signed to the Rincon unit and now it's
Q.
A.
transportation .
Q.
A.
Is that at the Tucson facility? Tucson, yes. How long have been with the Department of
Q.
Corrections ? A. Five years. On September 27th, 2008, were you also employed
Q.
at the Department of Corrections ? A. I was .
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Q.
A.
What was your position on September 27th? Same position, CO-2 out of Tucson . Was that also involving transport? No. What was your assignment, was it just a CO-2? Just CO-2. How did you have the opportunity to become
Q.
A.
Q.
A.
Q.
familiar with Bradley Schwartz before September 27th, 2008? A. Had you had that opportunity ? I had . He got assaulted a couple times before
and I have gone on transports from the yard with him, so I'm familiar, that's how I got familiar with him.
Q.
When you say you transported him from the yard,
where were you transporting him to? A. From Tucson to Saint Mary's Hospital. And that was prior to September 27th? That was prior, yes. Because of your knowledge of the other incidents,
Q.
A.
Q.
the other assaults, had you discussed the issue of safety with Mr. Schwartz ? A. The issue of protective custody?
I believe once or twice, yes, I have. What was your discussion like about that, what
Q.
did you discuss? A. You would probably have to go back to the
transcripts because I don't recall.
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Q.
I am going to show you what has been marked as Can you take a look at
defendant's exhibits C and D.
those and tell me what they are. A. And tell you what they are? Yes. Do you recognize those as one a transcript
Q.
of an interview you did with Investigator Friedlander? A. Yes, I do. And one was an interview you did with myself , Mr.
Q.
Klein and Mr. Diebolt present ? A. Yes. Can I have you look at the defense transcript If you could look at page four Just take a second to
Q.
which is marked as C.
starting at right around line 21. refresh your memory. A. Excuse me ?
Q.
Can you just take a second to refresh your
memory, then I will ask you about it. A. Okay. If you also want to look, I don't know if that
Q.
helped you, but you can also look at defense exhibit D which is the interview with Friedlander on pages five and six, and I can give you those. starting on line 18 to 20. A. Starting on line 13? 18 . On page five it is
Q.
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A.
18 .
Okay.
Q.
Do you remember then talking to him about what
you call PC 'ing up, which means you are in protective custody? A. Yes. Can you describe for us your understanding of Mr. Did he want to enter protective
Q.
Schwartz' position? custody? A. No?
What happened ?
The only thing that I can recall is just, you Like
know, asking him and then him just stating no.
exhibit D shows, he didn't really respond anything past that point. He didn't go into detail or nothing.
Q.
And you would have these discuss ions about
protective custody prior to September 27th, 2008? A. Yes, if that was the transport before, yes. And you also had those discussions on September
Q.
27th, 2008? A. I cannot recall because exhibit C shows that I mean that's not a fact and I can't
probably I did.
recall for sure that I actually spoke with him.
Q.
If you want to look then at defense exhibit D on If you want to look, you can go
the same page, page five. back a little bit .
Does it give you any con text as to if
you are talking about what your discussion was when you were at West Medical?
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Do you remember on line 18 telling him, I said because this is what, the third, fourth time? stated no. He just
He didn't really respond, he didn't say any
more on that. Do you remember that? I can't recall , I mean right now I can't recall . Okay. Is that what the transcript reflects,
Q.
though? A.
I mean that's what the transcript says. And this is from an interview that was done on
Q.
April 9th, 2009 with Investigator Friedlander? A. Correct. Which was closer in time than today? That is correct. Do you think that you may remember, you may have
Q.
A.
Q.
remembered it more clearly when you were speaking to Investigator Friedlander? A. When he was up in West Medical you are asking? I
am not sure what you are asking.
Q.
On September 27th, 2008, did you have any
discussions with Mr. Schwartz about protective custody in the process of being at West Medical transport during your involvement ? A. Okay. No, I mean like I said this is more recent
than it is today.
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Q.
then? A.
So your memory is not as clear today as it was Back in 2009? I would say no because I can't remember word for
word what our conversation was two years ago.
Q.
A.
Do you remember having a conversation at all? I remember talking to him. Are you aware that Mr. Schwartz filed a lawsuit
Q.
against the State and the Department of Corrections? A. I am not . You are not aware of that? MR. DIEBOLT: THE COURT: MS. BENSLEY: Relevance , Judge. Sustained.
Q.
Q.
Have you personally at any time had reason to
suspect that a lawsuit would result? MR. DIEBOLT: THE COURT: MS. BENSLEY: Objection , relevance, Judge. Sustained.
Q.
What was your personal involvement with Mr. Where did you go with
Schwartz on September 27th, 2008? him? A.
We went from the Tucson complex to Saint Mary's
Hospital and then from there, the other officer I was with flew with him in the helicopter to a hospital in Phoenix which I can't recall the name of it, I am not sure which
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one it was.
Q.
During that time that you were with Mr. Schwartz,
was he able to tell you anything about the incident, anything about the assault ? A. Do you recall ?
No, and I tried not to harp on that conversation
because he was in obvious pain.
Q.
But he didn't tell you what had happened or who
had assaulted him? A. No. The only thing I remember is maybe asking
him, who had assaulted him, and he did not know .
Q.
So he wasn't able to provide you with any more
information than that? A. Not that I recall . Prior to September 27th, 2008, had you had any
Q.
inter actions with Mr. Wood? A. Prior to that? Yes.
Q.
And can you describe , was he a person that was
easy to deal with , did you have some problems with him, disciplining him, anything like that ? MR. DIEBOLT: Judge, I am going to object to the nature of the question. THE COURT: MS. BENSLEY: Sustained.
Q.
Do you recall any specific interactions you had If you do?
with Mr. Wood prior to September 27th, 2008?
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A.
No, no specific interactions other than any
interaction I have with anybody else there. MS. BENSLEY: THE COURT: MR. DIEBOLT: THE COURT: witness? excused. Defense may call its next witness. MR. KLEIN: THE COURT: Your Honor, the defense rests. Very well . Ladies and Gentlemen , All right . Thank you .
Cross-examination, Mr. Diebolt? No questions . Jury have any questions for this
Thank you , officer , you may step down , you are
that means that the defense has presented all the evidence that it intends to present . Since the defense did present
evidence , that gives the State the opportunity to present rebuttal evidence if they choose to do so. Mr. Diebolt, does the State have any rebuttal evidence ? MR. DIEBOLT: THE COURT: Nothing further , Judge. Then, Ladies and Gentlemen , that
means you have heard all the evidence that you are going to hear in this case and what we have left to do are the closing arguments of the attorneys and then the Court's final instructions on the law. Mr. Diebolt, you may proceed as soon as you are ready .
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MR. DIEBOLT:
As I mentioned yesterday , this is It's not a long
not factually a really complex case. case.
We started yesterday, we are finishing at least And the reason I told you that
this portion of it today.
is because that's what I wanted you to expect. It's not complicated because it's clear as to what happened. The part that I want you to separate to
some degree is that they are both incarcerated at the time in the Department of Corrections . I don't want you to
think that just because they are inmates in the Department of Corrections that they lose each and every one of their rights. And I want you to understand that crimes still
are committed in the Department of Corrections between inmates and those crimes are prosecuted. And the reason that is is because there is still accountability and there is still responsibility of people doing harm to other people even in the Department of Corrections . And that's why we're here.
You have heard that the defendant attacked, and you heard nothing to the contrary, that the defendant attacked Schwartz . Schwartz . And you heard that he injured Never attacked him.
Schwartz never hit him.
You have seen the injuries .
You have heard some of the You
information about the treatment that was received.
heard that the defendant himself made admissions to two
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different people, Fairchild and Friedlander that he was the one who did it; he only used his hands. What happens in cases, you may already understand this, is that the State puts on witnesses and under oath those witnesses tell you what they know about the facts of the case . At the conclusion of all that you as a group go
back and say, this is a fact and this is a fact. You take the group of facts and you apply it to the final jury instructions. And the final jury
instructions that the judge is about to read to you is really the law, that's the law. The judge is telling you You apply the facts
the law, we are giving you the facts. to the law, that's how it is done.
And once you apply the facts to the law, that's when you ask yourself or you ask each other that question. Am I firmly convinced that the defendant is guilty of aggravated assault causing temporary but substantial injury? And it's clear that he is. evidence to the contrary. Zero. There's been no
I would ask you to go back in the jury room, take as much time as you like, talk about what you would like , and remember there has to be consequences even in prison for criminal behavior. Thank you.
THE COURT: Mr. Klein.
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MR. KLEIN:
Thank you, Your Honor.
Sorry,
should have done this before I had the chance to talk with you. May I approach ? THE COURT: MR. KLEIN: Yes. It is unfortunate that Mr. Diebolt
and I have different perceptions of what the evidence was in this case because obviously Mr. Diebolt believes there's absolutely no evidence to support a defense in this case. I put up there a little outline to help me
remember things that I think are important in evaluating whether the St ate has proven its case against Jeffrey Wood beyond a reasonable doubt . decide. That's what you are here to
At the beginning of this case yesterday you took
an oath to decide whether the State h as proven beyond a reasonable doubt that Jeffrey Wood is guilty . I do agree with one thing that Mr. Diebolt said and that is whether someone is in prison or not in prison, they are entitled to be protected by the law. That's true
of Mr. Schwartz who was in prison back in September of 2008 and it's also true of Jeffrey Wood who was in prison back in September of 2008. What do I mean by that? What I mean is that the
instructions the judge is going to give to you that are based on what the law is, what the constitutional rights of any person in the United States who has to face the
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strength and power of the government are when they are being prosecuted for a criminal offense, those apply to Jeffrey Wood just as they do to any other person in the United States of America. And the day we don't allow that
to happen is a very, very sad day indeed. Before I get into talking about the evidence , on behalf of Jeff and Sandra and I am sure Mr. Diebolt as well, I would like to thank you for your attention during this trial. As Mr. Diebolt said, it wasn't a case where But
you had to listen to evidence over weeks and weeks. nevertheless it is a very important case. And
nevertheless the rules, the protections, the constitutional rights apply to every citizen , apply to Jeffrey Wood as well as they do to Bradley Schwartz. So let's talk a little bit about the evidence. Mr. Diebolt said there is no dispute about what happened . Well, I guess there is no dispute if you think that Bradley Schwartz is telling the truth. So let's start off with that. And address the
question , did the fight happen the way Bradley Schwartz said it happened? Now the first thing that I put up there is it conflicts with the physical evidence. And let me tell
you, I am going to be showing you some pictures and they are probably not the bloodiest of the pictures that have
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been admitted into evidence. of you squeamish, I apologize .
If these pictures make any You know, when we were
talking at the beginning and asking you questions, we should have asked of the w hole panel whether any of you feel uncomfortable looking at pictures where blood is shown . And I hope, even though we didn't ask you this, that you will be able to evaluate these photographs un emotionally. But let's look at this first picture. It is admitted into
This is State's exhibit number five.
evidence , it will go back with you when you are deliberating. Bradley Schwartz told Investigator Friedlander, he told Ms. Bensley and myself in an interview where Mr. Diebolt was present and he testified yesterday that this incident happened while Jeffrey Wood was drinking at the water fountain and he was standing directly a cross from the water fountain. And then in very creative words he
said, without anything happening Jeffrey Wood wheeled around and punched me and I went down like a sack of potatoes . That's a beautiful image, beautiful literature. But it is not reality. Because if that had happened, you
would see blood directly across from the water fountain. And you can look at this picture until you are blue in the
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face and there is not a single drop of blood in this picture directly a cross from the water fountain . Indeed
the closest blood appears to be pretty much a room's width away if you line it up with the blood that is off to the side. That's not even across from the water fountain . So in addressing whether the fight happened the way Bradley Schwartz said it happened, a picture is worth a thousand words. And fortunately for you I'm not going Just look at this picture, it
to use a thousand words. didn't happen that way.
The next problem with answering the question of whether it happened the way Bradley Schwartz said it happened was his own statement. Let's follow through with
what happened when I showed Bradley Schwartz this picture. His answer was, well, I must have tumbled and rolled after he hit me. Well, number one, obviously that's
inconsistent with what he previously said. But even , even if that is what happened, again the picture doesn't substantiate that because if he is hit and he goes down like a sack of potatoes and then he rolls; look all along that wall, on the opposite side from the water fountain and there is not a drop of blood until you get past two separate classroom doors. Now if he has been hit and if he goes down like a sack of potatoes and if Jeffrey Wood is continuing to
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strike him, don't you think that there would be at least even a little bit of a trail of blood? Not a drop.
But there were other inconsistencies as well , not only in terms of what happened, but also in terms of his symptoms . For example, when he was interviewed by
Investigator Friedlander back in October of 2008, a little less than actually a month later, he was very specific with Mr. Friedlander . He said the first punch hit me He admitted that.
square right between the eyes.
When he talked with Ms. Bensley and myself, Mr. Diebolt being present, he said with the first punch he wheeled around and hit me right on the side of the head. So I asked him, you know, obviously , this whole sequence of events kind of gets confusing over time but isn't the first blow that you got the most memorable? he said ? There is one inconsistency . interesting string of inconsistencies. Next there is a very Because when Ms. Remember what
Bensley interviewed him back in January, we asked him , did you ever lose consciousness? And he said, well, not while the fight was going on . But once the corrections officers arrived, yes, I did We had a little
black out for five to ten minutes.
discussion there and I had to show him the transcript of our interview and he admitted yes, that's what he had
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said. Interestingly enough Nurse Quattlebaum dealt with him right when the corrections officers were dealing with him and her testimony was he was alert and oriented. knew his name, he knew his place, he knew time. not somebody who blacked out. And then she met with him as well in the medical unit at the West Unit at the prison and he was so alert that he was able to say , call my lawyer, and I want a plastic surgeon. That's not somebody who is blacked out . He
That's
Then continuing on, interestingly enough when he was transported in the ambulance , all of a sudden with Corrections Officer Rayot he says, oh, I don't know why I am here, what's going on, I'm totally confused. And then as soon as he arrives at Saint Mary's Hospital he's back in touch with reality, he's giving directions to the doctors, telling them what to do, what medicine to give him, everything . And he continues that
all the way up to Maricopa County Hospital. Is that a man who is being consistent in his statements, or is that a man who is trying to manipulate the medical center and he is also trying to manipulate the legal system? he's up to. Even in terms of the symptoms that he claims he I think the answer is pretty obvious what
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is having.
Let's start with his double vision.
I don't
know how you test double vision other than asking somebody , do you see two images? Mr. Schwartz admitted
that that condition, double vision, is something called diplopia, D. I. P. L. O. P. I. A. I think and he said he is still suffering from it even today. And yet I asked him about a report prepared by one of the doctors up in Maricopa County back on February 10th of 2009. And you remember I asked him, I started a
sentence with, well, doesn't that report show, and I started the sentence in the report that says, when asked , and he continued reading, the patient denies any diplopia or intermittent diplopia and droopy lid. Dr. Schwartz read that to you from the report from Maricopa County Hospital , February l0th, 2009. Now this report is not going back into evidence , into your jury deliberation room. But the testimony of
Dr. Schwartz, his admission that this is what the report said, is admissible. The only reason I'm telling you that
is because the judge is going to give you an instruction about what the evidence is in the case and he will tell you that the evidence is the testimony of witnesses and the exhibits that you are taking back with you that have been admitted into evidence. Even though that document itself is not admitted
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into evidence, the testimony of Dr. Schwartz , Mr. Schwartz is admitted in to evidence. It is his testimony , it is his
acknowledgement of what he told the doctors roughly five months after this incident occurred . No diplopia . He gets up here under oath and Is that somebody that you can
swears he's got diplopia.
believe when he says what happened in this case? And there's even more inconsistencies. He
testified he is suffering from a loss of his taste, he is suffering from a loss of his sense of smell. And when I
asked him, well, when you spoke with Ms. Bensley and me and Mr. Diebolt back in January of this year , did you ever mention that as a problem that you were continuing to have? And he had to admit, no, he never mentioned that. All of these inconsistencies, maybe on their own they don't reason ably make you think, okay, we are going to throw out what he says. But when you add that to the
conflicts with the physical evidence, the photographs , and then let's continue. His motive. case? Does he have a motive to lie in this
That's one of the points that the judge is going to
talk with you about in deciding whether you believe a witness's testimony. they have a motive? Their credibility as a witness, do You bet you Mr. Schwartz has a
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motive, he's trying to sue the Department of Corrections for failing to provide him with adequate safety. And he's got to show that they didn't provide him with adequate safety and he's got to show that as a result of that he suffered physical injuries. powerful motive to make up a story. Now obviously he didn't make up a story about being bloody and being injured, but the circumstances of what happened, you bet he's got a motive for that. Not So he's got a real
only did he have a motive for the lawsuit , but he was given the opportunity by the Department of Corrections to quote, PC up. Now admittedly that's not a great situation
because you don't have absolutely free access to the yard like somebody in general population has. But I remember , many of you are too young to remember when John Kennedy was president. a quotation from President Kennedy. But I remember
And it was something
to the effect of the most difficult part of the job of president is not having to decide between good and bad choices, but having to decide between bad choices and which is the lesser of two evils. And that's what Mr. Schwartz had to decide, and he decided to remain in semi general population . Remember
he was in unit six, housing unit six and that was kind of a hybrid unit, you still had open access, you didn't have
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PC restrictions. population.
But you weren't technically in general
And so he decided to stay there, and in doing so make his lawsuit so much better because it increased the risk that something might happen to him. Because he knew
he had previously been beat up by other inmates on previous occasions. He had been offered the opportunity He didn't want anything of
to go into protective custody .
it because, his words, the Department of Corrections has the responsibility of keeping me safe and I am Mr. Schwartz and I don't care what you do to other inmates to keep them safe , for me you have got to let me stay in general population and then what, provide an armed guard wherever I go? It was also interesting to hear what Mr. Schwartz had to say about his option to be put into protective custody. Because according to him, oh, that was hardly And in fact the only time that really I had
ever offered.
anything to say about it was when the deputy warden forced me to sign the paper . Well, he admitted the paper that supposedly the deputy ward en had him sign didn't have anything to do with whether he went into protective custody, it had to do with the other inmate. And he also admitted that for example
Officer Chiaravallo, the last witness who testified,
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didn't have any grudge against Mr. Schwartz.
And although
Officer Chiaravallo's recollection today wasn't very good, his recollection back when he was interviewed by Investigator Friedlander back in April of 2009 was that in fact prior to September 27th of 2008 he had had discussions with Mr. Schwartz about being put in protective custody and Mr. Schwartz said no, the Department of Corrections has to provide protection for me , I'm not going into protective custody . The next in connection with can you believe what Brad Schwartz has to say about what happened is the fact that he's previously been convicted of a felony. And not
only has he previously been convicted of a felony, but he pled guilty to an offense in Federal Court. The judge is
going to give you an instruction that talks about things that you can consider in addressing the credibility of a witness. And one of those things is whether that witness
has a prior conviction or has pled guilty previously. So that's another factor to consider in deciding whether you believe what Brad Schwartz has to say. And
you know , it's very interesting about that guilty plea. The guilty plea was to a charge of conspiracy to obtain illegal drugs by fraud or deceit. Lying. That directly
relates to his credibility and particularly when you consider his explanation of that.
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Well, on direct examination, you know, I had this intense pain and I was just so busy as a doctor I couldn't take the time so I asked my office assistant to get me these illegal, I wrote out a prescription for her and I asked her to get me these drugs. I can't read your minds but I suspect when you heard that you thought, well, that makes sense, he's very busy, he's in pain and one time he asks his office assistant to go out and do this . So then on cross
examination we went into a little more detail about that. Mr. Schwartz, isn't it true that it wasn't just your office assistant? And he admitted, no, actually there was
at least one or two other people that he asked to do this . And Mr. Schwartz, isn't it true that this happened more than once? Yeah, that's true.
I mean , well, let me just slide in to the next classification . His character. Brad Roach is a lawyer He knew
who used to work in the County Attorney's Office. Bradley Schwartz.
He had socialized with him, he had
talked with other people in the community about him. His opinion, number one , is that Mr. Schwartz, I think the answer was he's not capable of telling the truth . Now sure he will be able to say his name, he will
be able to say simple things, but you kind of got a picture of that when he testified, because he would
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testify about something , for example the fight in the hall, this is what happened. Then he's shown other
evidence , then he backs off when he is shown what the other evidence shows that he's not telling the truth. he makes an excuse. And low and behold even when he's making an excuse, it's still not substantiated by the evidence. That's his character for truthfulness. And his character And
for aggressiveness, his character for aggressiveness is as Mr. Roach said , if it will benefit him, he will be aggressive. And that goes back exactly to his motive. Well, come on, Mr. Klein, Jeffrey Wood said he did it. What doubt can there be? Well, there's a couple
of things and one interestingly enough was pointed out by Mr. Diebolt when he was talking, when he was questioning Bradley Schwartz. Because he asked Bradley Schwartz,
isn't there kind of a code in the Department of Corrections ? Mr. Schwartz said something like, I don't know, what do you mean? Eventually he wound up testifying,
telling you that in the Department of Corrections if you are confronted you don't snitch off other people. You
don't say, oh, so and so did this or so and so did this or so and so did anything, you don't snitch somebody off .
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So when you hear that Jeffrey Wood told Julie Fairchild, I'm the only one, keep that code of silence in mind. And when you hear that Jeffrey Wood said to
Investigator Friedlander, how is the guy, how is he doing? I didn't mean to hurt him. mind. More importantly when you think about the State's theory that Jeffrey Wood without any provocation just hauls off and hits Bradley Schwartz , why would he do that? And then why when he's asking or he's talking with Investigator Friedlander if in fact he did that, why would he then say, I didn't mean to hurt him. It's not, I Keep that code of silence in
didn't mean to hurt him that bad; it is, I didn't mean to hurt him, period. Now the other thing that is also interesting about Investigator Friedlander's conversation with Jeffrey Wood is what else he said. Because what he said was, I Well,
only hit him with my fist, I didn't kick him.
interesting ly there is no blood observed on Jeffrey Wood 's physicians, on his hands. The only thing that the State
is claiming is blood is on Jeffrey Wood's shoes and on his pants . These are photographs that you are going to have . These are
Let's see if I can hold three up at one time .
photographs that you are going to have, they are State's exhibits S, T and U, of what supposedly is blood on
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Jeffrey Wood's shoes and his pants. What I want you to also do when you are looking at these is look at the blood that's in the hallway. And
remember Jeffrey Wood says, I only hit him with my hands, I never kicked him. this. There are a couple of things about
First of all looking at these photographs you can
see the stains appear to be dry, they're not wet blood stains. And then if you look at those stains on the
shoes , they are kind of a pinkish color, they're not red like the blood you will see in the photographs of the hallway. So the question then is do we really know that
these stains are blood stains or that they are blood stains from this conduct with Bradley Schwartz? really know that? Because looking at these photographs, you would expect blood stains to be wet, they're not wet. Looking Do we
at these photographs you would expect the blood to still be red; if you think of your own experiences when you cut yourself , blood comes out red and when it dries it becomes sort of a brownish color. Right?
That's not what is depicted in these photographs. And beyond that, looking at the blood that's in the hallway, don't you think that if Jeffrey Wood had kicked and pummeled Bradley Schwartz the way Schwartz claims , that there might be a little more staining than appears on
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these shoes ? And it's not as if Jeffrey Wood had the chance to go down the hall, go into the bathroom and wash off anything like that . First of all you can see that his So what happened to this
shoes and his pants aren't wet. blood ?
This profuse amount of bleeding from the pummeling
that Bradley Schwartz took? Well, it would be real nice if we had those pants . If we had those shoes. So that we could do simple
laboratory tests.
Take a little swab, cut a little
section off of the pants and evaluate, number one, whether it's actual ly blood; and evaluate, number two, if it is blood , whether it's Bradley Schwartz's blood. But we
can't do that because somewhere, somehow within the Department of Corrections when they are doing this investigation over months, oops, we don't have the shoes , we don't have the pants. Well, you know , it's the burden of the State to prove their case beyond a reasonable doubt. And if the
State has lost evidence , if the State has failed to preserve evidence , then that evidence doesn't exist. when those witnesses came in and said those were blood stains, looks like blood, blah, blah, blah; and when I asked Investigator Friedlander from your experience as a detective in law enforcement , as a special investigator So
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for the Department of Correction s, can you say that those stains are blood? Why? He said no, he can't.
Because the simple test that you can do to
determine whether they are blood and whose blood they may be, they can't do because somehow they lost the evidence . As I was talking with you I remembered another in consistency that I was going to mention to you and I apologize for going back. But remember when Mr. Schwartz
testified, he commented , oh, yeah, I think Jeffrey Wood made several derogatory re marks about Mr. Schwartz 's religion . That is what he said when he was testifying. So I asked Investigator Friedlander , when you spoke with him you asked him what happened? Yes. And at any time when you were talking with him less than a month after this happened , did he ever say that Jeffrey Wood made a derogatory comment about his religion ? No . Mr. Schwartz was struck down like a sack of potatoes . The scene down the hallway was like the Texas And then in front of you he kept those
Chain saw Massacre .
emotions raising up in your hearts and in your souls. Jeffrey Wood made some derogatory comments about his religion . You know that creative writing class in Mr.
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Schwartz 's words may not have really been a class, it was just an opportunity to talk about things, but he sure learned alot in that class. And unfortunately what he
learned had nothing to do with telling the truth. When I get done Mr. Diebolt will have a chance to talk with you. And at this point he is going to be able I wish I could read his
to respond to all those points.
mind like I wish I could read your mind but I can't. I flunked mind reading in law school. I don't know what he
is going to say, all I do know is that no matter what he says I am not going to have a chance to respond to that. So I am going to ask you to do one very simple thing after you have had a chance to listen to him and when you go retire and deliberate on the case. Think
about all the evidence in the case, apply the evidence, or the lack of evidence to the instructions that the judge is going to give you . Don't just rely on what I say, don't Particularly when I
just rely on what Mr. Diebolt says. don't have a chance to respond.
Bat ideas back and forth among you and when you come up with some idea of what the evidence is, there's one critical, critical instruction that the judge will give you . That should be your guide for how you evaluate And that is the State's burden of proof.
the evidence.
And it would be lovely if we could give you, well, proof
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beyond a reasonable doubt is 79.43 percent of the evidence , but we can't . describe it to you. What we can do is kind of
And we can tell you what it is not.
So let me try to do that and hopefully that will make it a little easier to understand what it is. say I can't read your minds. Like I
But if you are sitting back
there saying, you know, I think probably Jeffrey Wood committed aggravated assault . If you are thinking
probably he did it, then you must find him not guilty . Because proof beyond a reasonable doubt is more than just the mere probability that the State h as proven its case. If you are thinking, you know , it is highly probable that Jeffrey Wood committed aggravated assault ; you know what your verdict is? guilty. Your verdict is not
Because highly probable is not the same as proof
beyond a reasonable doubt . And if you are thinking , you know, I am convinced that Jeffrey Wood committed aggravated assault ; even if you are convinced, your verdict is still not guilty. Hard
to believe but the judge is going to instruct you that in order for you to come back with a verdict of guilty in this case, you have to be firmly convinced that Jeffrey Wood is guilty . Not just being convinced but being firm ly
convinced; then and only then can you come back with a verdict of guilty .
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So Ladies and Gentlemen , on behalf of Jeff, Sandra and myself , we would very much like to thank you for your attention throughout the trial, particularly during my closing argument . And the only thing I am going
to ask you to do is as you retire to deliberate , think about the evidence, think about the law and simply follow your oath that you took at the beginning of this case . And I hope that will be that you find Jeffrey Wood not guilty. Thank you . THE COURT: MR. DIEBOLT: Mr. Diebolt, you may rebut. I have listened to a lot of closing
arguments from defense, so I look at it from a different perspective because I do this on a regular basis. So I But
probably hear or don't hear things that maybe you do. I want you to think about the following. say his client didn't do it.
Counsel doesn't
He says that he doesn't want Not
you to believe everything that Brad Schwartz says. once did he say his client was innocent.
He just doesn't
want you to believe everything that Brad Schwartz says. Did it happen here, did it happen a few feet away; was he hit fifteen times or 20 times; was he first hit on the side of the head or straight between eyes? hope none of you have been struck before in the nose or eyes or the head, I will unfortunately say that I have . It does disorient you. I
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MR. KLEIN: Diebolt testifying. THE COURT: MR. DIEBOLT:
Judge, I am going to object to Mr.
Sustained. Any time somebody gets hit in the
head or the face or the eyes or the nose, especially the nose, it's going to disorient you. MR. KLEIN: THE COURT: MR. DIEBOLT: some memory issues. Your Honor, the same objection. Overruled. And that disorientation may cause But that's, so if you don't get every
single thing right, does that mean that that man is not guilty of aggravated assault ? Of course not. It would be
a sad day if people in the Department of Corrections could do whatever they wanted to other inmates and get away with it. That would be not only a sad day but it would be It would be more uncivilized in an already
anarchy.
partially uncivilized society that we live in. The evidence that has been presented to you is clear to the point about what happened . to contradict it. Nothing . There's nothing
You know, the lawsuit you can One way of
factor in however you want to factor it in.
looking at the lawsuit is this is the fourth time he got his butt kicked and he's done with it. And being in
protective custody you have heard is like being stuck in a box. You are already in prison, then you get stuck in the
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hole.
I will take my chances outside in the larger area 23 hours in
rather than be stuck 23 hours in your cage. protective custody.
I think when Brad Schwartz was asked about something being memorable, he said none of it was memorable; I think that was his response. When Wood said something to Investigator Friedlander , he says that he struck the victim only with his hands. Now you can interpret that however you want.
How I understood that to be the case is that he was saying he didn't have any weapons in his hands, that he used his hands. He never said I didn't kick him, he never said I
didn't kick him. The instruction about proof beyond a reasonable doubt is an important instruction. And I suppose all the
ones the Court gives you are important , some apply more than others . But the one about proof beyond a reasonable
doubt is really the proof that leaves you firmly convinced. So you can take those two words, firmly
convinced, and tie that into proof beyond a reasonable doubt . If you look at the big picture , can I use the
easel, Judge? THE COURT: MR. DIEBOLT: Yes. Thank you . There is a concept ,
sort of an analogy, I can't ask you questions and have you
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answer out loud.
So I have to assume that, I know none of
you do this for a living so that maybe you don't have a full understanding of proof beyond a reasonable doubt . I am going to draw a map. there for you to look at. So
I have just drawn a few things And the reason I have drawn
those is so that I can identify the Santa Catalina Mountains, San Xavier Del Bac Mission , McKale Basketball and Activity Center, A Mountain and the University of Arizona. And I have just given you five things and I have drawn those to ask you a rhetorical question, not to answer out loud, but I am going to ask you to step back and look at the big picture and say, am I firmly convinced that is Seattle? Seattle. Am I firmly convinced that is Tucson, Arizona? Well, you should be. I have only given you five things or No. I am not firmly convinced that is
a few things, I haven't drawn each and every little detail of Tucson to convince you of that. And that is what the
law really requires is that you take a step back, use your common sense, life experience s and look at that and say, yeah, I am firmly convinced that is Tucson based on the information I have . And that is what I am asking you to do, step back, use your common sense, life experiences, reasonable
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inferences and say, yeah, I am firmly convinced that he did it. Why did he do it? Maybe he doesn't, there can't
be a lot of -- well, you can draw your conclusions of why it happened . We can talk about why it may have happened . Can't You
Bradley Schwartz told you he is identified as doc. be a lot of doctors in the Department of Corrections. can do a survey but there can't be a lot.
So when you are in there and you are a small little I will say Jewish doctor, can't be a lot of them, maybe that draws more attention than he deserves. Or
maybe he deserves the attention but he doesn't deserve to get his butt kicked on a regular basis and that's why we are here today . Thanks. Ladies and Gentlemen , I want you to
THE COURT:
keep the notes that you took during the trial but pass the notebooks, the three ring notebooks to the left so that the bailiff can collect them. The bailiff will now pass out to you copies of the Court's final instructions on the law. I will read
these to you as we did with the earlier instructions and I ask you to read them along with me. You will have these
instructions with you with you throughout your deliberations so if you have a need to refer back to them, you may. I am now going to tell you the rules you should
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follow to decide this case . these instructions.
It is your duty to follow
It is also your duty to determine the facts only from the evidence produced in Court. When I say evidence,
I mean the testimony of witnesses and the exhibits that have been introduced during the trial. speculate or guess about any fact. You must not
You must not be
influenced by sympathy or prejudice and you should not be concerned with any opinion you may feel I have about the facts . You are the sole judges of the facts. You must consider all of these instructions. Do
not pick out one instruction or part of one and ignore the others. As you determine the facts, however , you may find You must then
that some instructions no longer apply.
consider the instructions that do apply together with the facts as you have determined them. Nothing said or done by the lawyers who have tried this case is to be considered by you as evidence of any fact . Opening statements of the lawyers are intended
to give you a brief outline of what each side expects to prove so that you may better understand the evidence. closing arguments are often very helpful in refreshing However, your The
your recollection as to the evidence.
verdict should be based not upon the lawyers ' statements but upon the evidence.
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The function of the lawyers is to point out those things that they consider to be most significant. doing so to call your attention to certain facts or inferences that might otherwise escape your notice. the lawyers say is not binding upon you. What And in
If your memory
of the evidence differs from what the lawyers have represented it to be, it is your memory that controls . you believe that the law as represented by the attorneys differs from the law as given by the Court, it is the Court's instructions on the law that control . The State has the burden of proving the defendant guilty beyond a reasonable doubt . This means the State If
must prove each element of the charge beyond a reasonable doubt . In civil cases it is only necessary to prove that
a fact is more likely true than not, or that its truth is highly probable. In criminal cases such as this, the It must be
State's proof must be more powerful than that. beyond a reasonable doubt .
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty. In criminal cases the law does not If based on
require proof that overcomes every doubt.
your consideration of the evidence you are firmly convinced that the defendant is guilty of the crime
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charged, you must find the defendant guilty.
If on the
other hand you think there's a real possibility that the defendant is not guilty , you must give him the benefit of the doubt and find him not guilty. The law does not require a defendant to prove innocence. innocent . The defendant is presumed by law to be You must start with the presumption that the
defendant is innocent. The State must prove all of its case against the defendant with its own evidence. The defendant is not
required to testify, call witnesses , attend trial or produce evidence. The decision on whether to do these
things is left to the defendant acting with the advice of his attorney. You must not let these choices a ffect your
deliberations in any way. The State has charged the defendant with the crime of aggravated assault. innocent . The defendant is presumed
You must not think the defendant is guilty just The defendant has pled not
because of these charges. guilty.
This plea of not guilty means that the State must
prove every part of these charges beyond a reasonable doubt . The crime of aggravated assault requires proof that the defendant committed assault, which requires proof that the defendant intentionally, knowingly or recklessly
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caused a physical injury to another person. And the assault was aggravated by the fact that the defendant committed the assault by any means of force that caused temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part, or a fracture of any body part. Intent or intentionally as used in these instructions means that a defendant's objective is to cause that result or to engage in that conduct. Intent may be inferred from all the facts and circumstances disclosed by the evidence. It need not be The
established exclusively by direct sensory proof.
existence of intent is one of the questions of fact for your determination. Reckless ly means that a person is aware of and consciously disregards a substantial and unjustifiable risk that conduct will result in physical injury to another person . The risk must be such that disregarding it is a gross deviation from what a reasonable person would do in the situation. Knowingly means the defendant acted with the awareness of the existence of conduct or circumstances constituting an offense. It does not mean that a
defendant must have known the conduct is forbidden by law.
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You have heard evidence of the victim's character for aggressive ness and dishonesty. In deciding this case
you should consider that evidence together with and in the same manner as all the other evidence in the case. Neither side is required to call as witnesses all persons who are shown to have been present at any of the events involved in the evidence, or who may appear to have some knowledge of the matters in question in this trial; nor is either side required to produce as exhibits all objects or documents that have been referred to in the testimony or the existence of which may have been suggested by the evidence. You must not consider any statements made by the defendant to a law enforcement officer unless you determine beyond a reasonable doubt that the defendant made the statements voluntarily. The defendant's
statement was not voluntary if it resulted from the defendant's will being overcome by a law enforcement officer's use of any sort of violence, coercion or threats, or by any direct or implied promise, however slight. You must give such weight to the defendant's
statement as you feel it deserves under all the circumstances. In deciding whether the defendant is guilty or not guilty, you must not consider the possible sentence or
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punishment that could result. Court .
Punishment is left to the
Evidence may be direct or circumstantial.
Direct
evidence is direct proof of a fact such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence , that
is , it is proof of one or more facts from which one can find another fact . For example , if you wake up in the morning and you see puddles of water on the ground, you may find from that fact that it had rained during the night, even though you did not see it rain. However, other evidence such as a turned-on garden hose may explain the puddles. Therefore before you
decide a fact has been proven by circumstantial evidence , you must consider all the evidence in the light of reason, experience and common sense. You are to consider both direct and circumstantial evidence . equal weight to both . The law permits you to give
It is for you to decide how much
weight to give any evidence. The testimony of a law enforcement officer is not entitled to any greater or lesser importance or believability merely because of the fact that the witness is a law enforcement officer. You are to consider the
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testimony of a police officer just as you would the testimony of any other witness. Not all exhibits marked and used during the trial are admissible. Only those exhibits admitted into
evidence may be in the jury deliberation room and used by the jury during deliberations. In deciding the facts of this case you need not accept all the evidence as true or accurate. You as the
jurors are the sole judges of the credibility of a witness and the weight of the evidence. The credibility of a
witness means the extent to which you believe the witness. The weight of the evidence means the extent to which you are or are not convinced by the evidence. You should carefully evaluate the testimony given , the circumstances under which the witness has testified and every matter in evidence that tends to indicate whether the witness is worthy of belief. In evaluating testimony you should use the tests for truthfulness that people use in determining matters of importance in everyday life, including such factors as the witness's memory or lack of memory. The witness's interest or lack of interest in the outcome of the trial . The witness's relationship to any of the parties or other witnesses.
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The witness's demeanor and manner while testifying. The witness's ability to see or hear or know the things about which he or she testified . The reasonableness of his or her testimony when considered in light of all the other evidence. The witness's demonstrated fairness or unfriendliness for or against any party. Whether the witness was contradicted by anything the witness said, wrote or did before trial. Consider all the evidence in the light of reason, common sense and experience. The verdict must represent the considered judgment of each juror. agree to the verdict. It is necessary that each juror In other words, your verdict in
this case if you return a verdict must be unanimous. It is your duty as jurors to consult with one an other and to deliberate in an effort to reach a verdict, if you can do so without violating your individual judgment . Each of you must decide the case for yourself .
But do so only after an impartial consideration of the evidence with the other jurors. In the course of your deliberations do not hesitate to re-examine your own views and change your opinion if you became convinced that it is erroneous. But
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do not surrender your honest convictions as to the weight or the effect of the evidence solely because of the opinion of the other jurors for the mere purpose of returning a verdict . In arriving at a verdict, the possible punishment is not to be discussed or considered and must not in any way a ffect your decision as to the guilt or innocence of the defendant. All eight of you must agree on a verdict. All
eight of you must agree whether that verdict is guilty or not guilty. When you go to the jury room the first thing you will do is choose a foreperson who will be in charge during your deliberations and who will sign any verdict. You will be given one verdict form on which to indicate your decision. Ladies and Gentlemen . And I hold that form in my hand, It has the caption of the case at
the top and then it states, we the jury duly impaneled and sworn in the above entitled action upon our oaths do find the defendant, Jeffrey Allen Wood, then there's a blank space for you to fill in either the words not guilty or guilty of the offense of aggravated assault, causing temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part , or a fracture of any body part as alleged in count one of
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the indictment . Counsel, are there any corrections or additions to the instructions as read? MR. DIEBOLT: MR. KLEIN: THE COURT: No, Your Honor. Yes, if we can approach. Yes, please.
MR. KLEIN:
I will confess to perhaps going
senile but I would have sworn that in one of the packets that we received there was a credibility of witnesses based on a prior felony conviction/guilty plea that isn't in the Court's final instructions. THE COURT: was. MR. KLEIN: Then I have gone senile. I would It isn't and I don't think it ever
just ask that the Court indicate that an additional factor for the jury to consider is whether the witness has been convicted of a felon y or has pled guilty and then indicate that the Court will provide an additional written instruction to that effect , and I have no objection to the RAJI being used. THE COURT: It wasn't one you submitted so it
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won't be in that packet? MR. KLEIN: don't think so. THE COURT: I don't think so. Okay, I will just Right. I would have to check but I
have to be extemporzie here. MR. KLEIN: I really think all the Court needs to
say is what I had indicated. THE COURT: Okay, I will give it a shot.
MR. KLEIN: Thank you.
THE COURT:
Ladies and Gentlemen , you are further
instructed that any evidence that a witness has been convicted or pled guilty to any offense that has been related to you through the testimony may be considered when you consider and evaluate the witness's credibility as a witness. Anything else , counsel? MR. KLEIN: MR. DIEBOLT: THE COURT: No, Your Honor . No, Judge. All right. Ladies and Gentlemen , as
we said at the start of the trial there will be only eight of you who actual ly deliberate and reach a verdict and there are nine of you, and that is as we explained earlier
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because one of you is an alternate juror.
The identity of
that person has not yet been determined and I will ask the clerk to draw one of your names at random and that will be the alternate juror. THE CLERK: THE COURT: Benjamin . Juror number three. All right. That would be you, Mr.
It is always with some mixed feelings that we
identify the alternate because you have devoted as much time as anybody else to the matter and you have been very attentive as well as everyone else. likely not going to be deliberating . And now you are most But as we explained
earlier, it is very important to have an alternate in case one of the jurors becomes unable to complete jury service for whatever reason, that would have allowed us to continue the trial without starting all over. You will not be able to join the rest of the jurors in the jury deliberation room. personal belongings in the room? JUROR BENJAMIN: THE COURT: No. Have you left some
If you will leave a phone number with
the bailiff, then he will call you as soon as there is a verdict. We ask that you still maintain the admonition
about not discussing the case until you get that call that there has been a verdict because there is still some slight possibility that one of the jurors will not be able
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to complete the deliberations, and if that were to happen we would call back in to rejoin the jury, and that's why we ask that you still not discuss the case. Ladies and Gentlemen, at this stage there are some important changes that occur. First of all I have
been telling you not to discuss the case with each other or with anyone else. And now it becomes your
responsibility to discuss the case with each other but not with anyone else. Your ability to discuss and your
obligation to discuss it with each other occurs only if two conditions are met. The first is that all eight of
you must be present together. And secondly, you must all be present in the jury deliberation room . So for instance if the bailiff has you lined up in the hall way waiting to unlock the door to let you into the jury room, even though you are all there, you can't discuss the case outside the room. Once you are inside the room, if one of you is using the restroom, you have to wait for that person to return before you can discuss the case. The second change is that I have also been telling you when to come and go, setting your schedule. From now on that becomes your decision collectively. It
is 3:00 o'clock right now, the first thing you ought to do
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is select a jury foreperson and then if you want to take a recess you can . The length of the recess is up to you.
Or if you want to begin your deliberations right away , that's up to you, too. I want to emphasize to you that there is no restriction on the amount of time you have to decide this case. You have whatever it takes, whether it's five But there are some First
minutes, five hours or five days.
practical considerations that have to be observed.
is that this building more or less closes down to the public around 5:00 o'clock so we don't allow jurors to deliberate beyond 5:00 o'clock . So if you were to reach
that time of day and need more time to deliberate, we would ask you to return tomorrow morning. return is up to you to decide. And when you
It could be any time after
8:30 in the morning when again the building is more or less open to the public. Again I'm not trying to suggest that your deliberations ought to take any particular time, you have whatever it takes . The only thing I ask is when you make
these scheduling decisions , let the bailiff know so he can let the rest of us know so we can meet your schedule. So at this time I will ask the clerk to swear the bailiff.
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((Whereupon the bailiff is sworn.))
THE COURT:
Ladies and Gentlemen, you should now
retire to deliberate , take with you your own notes that you took during the trial as well as the Court's instructions. bailiff. The record will show the absence of the jury, the presence of counsel and the defendant . Counsel, I You will be under the guidance of the
would ask as we usually do that you stay within five minutes of the c ourthouse in case there is a question or a verdict is reached. And give us a phone number so you can
be reached with the bailiff. And Mr. Klein, would you like the Court to search out the RAJI instruction and include it in writing and have that delivered to the jury? MR. KLEIN: I would, Your Honor. Either that or
I can do it as soon as I get back to the office. THE COURT: I think we can find it without much
trouble, whatever the RAJI is on that subject. All right. MR. KLEIN: Anything else? One final thing and then I promise at And
least for the time being to make no more comments.
that is to make a request for a mistrial based on Mr. Diebolt's closing arguments. Number one, I objected to
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the comment that he made and the Court sustained it about his personal experience . After that was sustained he then
basically said anybody who gets hit in the face is disoriented , et cetera, again, and I think the Court overruled that one. THE COURT: personal experience. MR. KLEIN: testifying. But regardless it is still him Because he didn't relate it to any
There was no evidence and he had medical
personnel who could have said any time you are hit in the face you are disoriented, but there was no evidence. In addition during his argument he talked about , well, if you don't follow the rules within the prison system, that will lead to anarchy; that's an improper argument as well. That is like saying, if you don't
convict him, crime is going to run rampant on the streets of Tucson. And then finally when he said that there was nothing to contradict that Jeffrey Wood hit Mr. Schwartz , number one, that's a comment on Mr. Wood's failure to testify. And number two, that is shifting the burden . THE COURT: All right. The Court notes the
motions for mistrial and denies them. Anything else ? MR. KLEIN: No, Your Honor .
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THE COURT:
The Court will be in recess.
((Whereupon a recess is taken in this matter and then the trial proceeds as follows.))
THE COURT:
The record will show the presence of You may bring in the jury .
counsel and the defendant.
Mr. Klein, did you see the added instruction ? MR. KLEIN: THE COURT: I did , and I have no objection to it. That for the record was numbered
instruction 17 that was added in writing after the jury was verbally instructed . THE BAILIFF: THE COURT : Your Honor, the jury. Please be seated. The record will
show the presence of the jury, counsel and the defendant. Ms . Foley, are you the jury foreperson? THE FOREPERSON: THE COURT: I am.
Has the jury reached a verdict? They have .
THE FOREPERSON: THE COURT:
Would you please hand the verdict
to the bailiff, please. The clerk will read and record the verdict. THE CLERK: Omitting the formal caption , we the
jury duly impaneled and sworn in the above entitled action upon our oaths do find the defendant, Jeffrey Allen Wood ,
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guilty of the offense of aggravated assault , causing temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part , or a fracture of any body part, as alleged in count one of the indictment . Signed foreperson.
Members of the jury, is this the verdict and the verdict of each of you? MEMBERS OF THE JURY: THE COURT: jury? MR. KLEIN: THE COURT: Yes, Your Honor. Ladies and Gentlemen , the clerk will Yes, it is .
Do either counsel wish to poll the
ask each of you a question and your answer ought to be either yes or no . THE CLERK: verdict? JUROR NUMBER ONE: THE CLERK: verdict? JUROR NUMBER TWO: THE CLERK: verdict? JUROR NUMBER FOUR: THE CLERK: verdict? Yes. Yes. Yes. Juror number one, is this your
Juror number two, is this your
Juror number four, is this your
Juror number five, is this your
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 verdict? verdict? verdict? verdict?
JUROR NUMBER FIVE: THE CLERK:
Yes.
Juror number six, is this your
JUROR NUMBER SIX: THE CLERK:
Yes.
Juror number seven, is this your
JUROR NUMBER SEVEN: THE CLERK:
Yes.
Juror number eight, is this your
JUROR NUMBER EIGHT: THE CLERK:
Yes.
Juror number nine, is this your
JUROR NUMBER NINE: THE COURT:
Ye
Ladies and Gentlemen , on behalf of
all the participants in the trial we thank you very much for your service to the community by serving on this jury. Your service is now at an end, the admonition is lifted, you may discuss the case with whoever you wish. If
somebody asks you about it and you don't want to talk about it , simply tell them that and they will honor your wishes. Leave with the bailiff your juror badges and also your notebooks that you took notes in and he will destroy the notes and we will use those pads for other trials as we will with the jury badges. Thank you once again.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 priors? Honor .
The record will show the absence of the jury and the presence of counsel and the defendant. The Court orders a pre-sentence report be prepared by the Adult Probation Department. Mr. Klein, I would propose to set the sentencing for the 15th of June if that's a date that is acceptable to you. MR. KLEIN: Yes, and we would waive time, Your
MR. DIEBOLT:
Judge, the only other factor would
be setting a priors trial, there is an allegation of three priors, I believe three. THE COURT: Friday at 10:30. MR . DIEBOLT: THE COURT: MR. DIEBOLT: Could you give me just a second. Sure. That would be fine. I am pretty Okay. I will have to double check. Well, I could do that this
sure that whoever my witness would be would be available but if I could go back and double check and if that was an issue I could contact the Court and counsel. THE COURT: Okay. Otherwise the Court won't be
available for a couple of weeks and so if we can, I would just as soon get it done within that time. Mr. Klein, is your client going to contest the
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MR. KLEIN: THE COURT:
Yes. And the State's intending to go
forward, you have charged three and you intend to g o forward on three? MR. DIEBOLT: There is a penitentiary pack that
was disclosed and on that pen pack are three listed separate CR's, I think that's what we alleged, three. THE COURT: Just so the Court and defense counsel
have notice of what you actually intend to proceed on . MR. DIEBOLT: Give me just one second. There
might have been four alleged but whether it's four or three that I proceed on, I don't know exactly. THE COURT: If you would just let counsel and the
Court know before that date. All right . MR. KLEIN: Friday at 10:30? THE COURT: in recess then. 10:30, yes. Okay. The Court will be Anything else before we recess? I sorry. The priors trial is this
Thank you.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ___________________________ Deirdre Muzall, RDR, #50012 Certified Court Reporter I, Deirdre Muzall, certify that I took the shorthand notes in the foregoing matter; that the same was transcribed under my direction; that the preceding pages of typewritten matter are a true, accurate and complete transcript of all the testimony adduced, to the best of my skill and ability. C E R T I F I C A T E

Jeff Wood Trial Transcript, Day 2

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Jeff Wood Trial Transcript, Day 2

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1

STATE OF ARIZONA, Plaintiff,

) ) ) vs. ) ) JEFFREY ALLEN WOOD, ) Defendant. ) ______________________________)

2 CA-CR 2011-0193 CR-20093952

THE HON. JOHN LEONARDO, DIV. 10

APPEARANCES: MARK DIEBOLT appearing for the State

DONALD KLEIN SANDRA BENSLEY appearing for the Defendant

JURY TRIAL - DAY TWO 21 22 23 24 25

Deirdre Muzall, RDR, #50012 Certified Court Reporter

D. E. By Ms. Bensley C. E. By Mr. Diebolt ReD. E. By Ms. Bensley

D. E. By Mr. Klein C. E. By Mr. Diebolt ReD. E. By Mr. Klein

D. E. By Mr. Klein C. E. By Mr. Diebolt ReD. E. By Mr. Klein

The record will show

This can be off the record.

What I was going to suggest is that

Your Honor, the jury. Please be seated. Good morning,

The record will show the presence The State may

MR. DIEBOLT: Friedlander .

The State calls Investigator

DIRECT EXAMINATION MR. DIEBOLT:

If you would introduce yourself to the jury,

And, sir, how long have you been in that

Correct. At some point later were you asked to participate

I think you said Jeffrey

Schwartz , I think his name is Bradley Schwartz.

My mistake , thank you.

of who the assailant might or could have been.

And did Mr. Schwartz , Bradley Schwartz select a

Do you know if he was sent back to Maricopa for

((Whereupon there is an on-the-record bench conference.))

MR. KLEIN: on hearsay.

Number one, his information is based

Number two, Schwartz actually went up to One

Maricopa County Medical Center for several reasons .

((End of bench conference.))

As part of the investigation did you do

THE COURT: MR. KLEIN:

You may cross, Mr. Klein. Thank you, Your Honor.

CROSS EXAMINATION MR. KLEIN:

I am going to show you what has been marked for

to your questions ? A. Yes, he did . Did he appear to have any difficulty

not say anything regarding any comments Mr. Wood made.

And when you were talking with him you

I believe so. Was one of your reasons for interviewing them to

find out what happened to Mr. Wood's pants?

of Florida? A. For several years. So you appreciate the importance of doing

Bradley Schwartz's blood, correct?

these questions so let me just go through them.

REDIRECT EXAMINATION MR. DIEBOLT:

Investigator Friedlander, were you aware of any

revealed that inmate Wood admitted to you that he had done

If counsel would approach.

((Whereupon there is an on-the-record bench conference.))

THE COURT: MR. DIEBOLT: MR. KLEIN:

would like to do follow-up. THE COURT: Okay.

((End of bench conference.))

Mr. Friedlander, the jury asked this Why was

question to respond to if you know the answer.

RECROSS EXAMINATION MR. KLEIN:

Investigator Friedlander, when you say the

would refer to your review of the medical records?

I did not review the medical records to any

Did you review the medical records to the extent