Watch an Appellate Lawyer Argue Before the Supreme Court | State v. Richard Passio Jr. Oral Argument

You may be seated. The next case for oral argument is State versus Pasio.

Ms. Batch. Good morning, Chief Justice Beatty, and members of the court, and may it please the court. The evidence presented at this trial was wholly insufficient to support the verdict. The critical assessment of the State's evidence shows that this case never should have been submitted to the jury. The State failed to present sufficient substantial circumstantial evidence that Richard Passio is guilty of this crime, and the Court of Appeals erred in holding otherwise. So what was the state's case? The state showed that there was tension in the marriage. They showed that there was an argument at a local bar earlier that evening. Passio was observed around 1 o'clock in the morning leaving Jasper's porch with a black case, and a 16-year-old claimed she heard shots at some point between 1:00 a.m. and 3:00 a.m. Initially, of course, she said 1:00 a.m., but that conflicted with the video evidence showing Passio leaving Jasper's porch, and also Shelby Siddons' testimony that she heard Michelle Passio over the phone at 2:00. So the state's theory ended up being that this murder happened at some point between 1:00 and 3:00 a.m. And then there were these uninformed observations by first responders about this not being a fresh scene that were not in any way corroborated by the forensic pathologist, Dr. Presnell. So the first responders in this case, the ones who pushed this narrative of this not being a fresh death scene, you know, testified beyond their areas of expertise, and they made statements that frankly were demonstrably false. Michael Singleton, um, the EMT, for example, informed the court that it takes, quote, at least 30 minutes for coagulation to set in. And this just is not true. And others followed suit with the idea that the blood was not still dripping or that it was gelatinous. And we know that the condition of blood is simply not a reliable indicator of time of death.

Ms. Franklin-Buss, I want to ask you, and this is probably more procedural question, And I may have difficulty forming the question. If you don't understand it, it's my fault, not yours. We had a little bit of this in the last case, but it seems to be, to me, very pointed here. There's a directed verdict motion to take it away from the jury. The evidence is insufficient to create a jury question. In the brief, there is no specific exception, or part of the brief that's devoted to an assignment of error as to this evidence that you're saying these witnesses lack the expertise. So, required expert testimony, they didn't have it. Yet, there's no real objection to that. So, does a directed verdict motion give us, give the party who makes it a pass, and allow that party to retroactively go back, and challenge the admissibility of evidence, for the first time on appeal?

Well, I will say that the trial counsel, in this case, did object to this particular information, at the very beginning of the trial. So, this was argued to, Judge Mullen, who, you know, sort of initially allowed all of this to come in. She took a break. She attempted to kind of cabin this a bit because she began to sort of realize that this was beyond the expertise of some of these witnesses. But she still allowed them to kind of come in and make these observations. So it's not quite like a case where this was not raised and that the court, I think, had was on notice that this was an issue. Trial counsel did take opportunities to cross-examine some of these witnesses as to some of these facts. Of course, in the end of it, they ended up sort of all 4 of them, I believe there were 4 witnesses who came in and sort of trotted out this information, and when it was demonstrably false. So I mean, I do think it's slightly different than—

And I'll just ask one more time, and I'll leave it alone. But, you know, on page 118, there's an example where defense counsel in cross-examination of Lieutenant Gin, or Gin, is the one who raised it. And yes, there's the body was cold to the touch. There was the coagulation. There was the gelatin appearance. There was this whole array And there was an objection to one, but not everything. And I'm just asking when— and it's not mentioned in the brief. There's no exception taken, the trial court erred in allowing witness so-and-so to testify to X, because it was beyond his or her expertise. So I'm just wondering procedurally, when you make a directed verdict motion, do we somehow just drop the rules, or relax the rules, and allow the party who makes the motion to go back and cherry-pick evidentiary objections, to which were not really vetted, and which are not in the brief?

Well, I do believe that, I mean, so, right, when the time for the directed verdict came out, this was not so granularly objected to, that's true, but I do think trial counsel made a record that the evidence was insufficient to prove the guilt, and I do think that when you look at the evidence that was presented, of which this was only a part of it, the picture that emerges is one of just not being sufficient to support the verdict.

I hear you on that. Thank you, ma'am.

So, I mean, another witness testified to the decedent being ashen, as tending to prove that the victim, the decedent, had been dead for a significant amount of time, and again, these were not reliable indicators of time of death. Significantly, Dr. Presnell, the forensic pathologist, I mean, she did testify as to lividity or rigor mortis, which is that purple blotching of skin that results as the blood settling after death. And she testified that that would have been present from sometime between 30 minutes and 2 hours after death. And so what that means is that if the state's theory of the case is true, and that Passio murdered his wife at some point between 1:00 and 3:00 a.m., there would have been lividity present on the victim's body, but there wasn't. And we know that there wasn't because if it had been there, we know that the pathologist would have testified to it. But the State did not ask the pathologist any questions about the death interval. But also, I mean, the State's theory of this delayed reporting of murder is pretty illogical. I mean, for some reason, the State decided to commit to the notion that Passio murdered his wife from from sometime between 1:00 and 3:00 a.m., and not report it until nearly 6:00 a.m. The inference being that this delay shows some malice on Pasio's part, that he's a liar. But to do what? I mean, there was no evidence that he tampered with the scene. The State never argued that he engaged in any particular actions during this interim, other than say that he just spent this time getting his story straight.

What do we do about his sliced hand from the slide of the firearm, and his DNA present there? Um, the DNA on the gun case, whatever. I mean, are we allowed to look at that, since it's the denial of a directed verdict, and light most favorable to the State?

That there was DNA on the slide, and on the gun?

I mean, He was sliced up.

He had his cut, yes.

I'm just saying, there are more circumstances here, I think, than you've alluded to, and I'm just wondering, can we consider those in our review of the correctness of the denial of the directed verdict motion?

I mean, I believe so, Your Honor. I mean, I believe you can take into account anything that was raised as evidence in the case. I mean, as to, I mean, I would think that it would be relevant to this court's considering the claim that the DNA of both Richard Passio and his wife were also on the trigger of the gun, for example. So yes, I mean, I think all of that information is capable of being analyzed by the court, even though it was not expressly outlined by trial counsel during his directed verdict motion. But, you know, this idea of the delay really is the state's linchpin. It's the linchpin of the state's theory of the murder, but it's really hard to kind of see why other than it makes Castillo appear as though he is being deceptive and that he's lying. And I do want to talk a little bit about the case. I mean, this was obviously a factor about the about the state's case that they relied on quite a bit. We know that Brandon Ashcraft testified that Pasillo kept a gun in a case, and he said that about a month prior to the time that these events happened. There were two other witnesses who had been at Jasper's porch who also claimed to have seen this case, but those witnesses did not identify the case that was ultimately entered into evidence as that particular case. We don't know.

Was the case that he kept the gun in at Jasper's porch ever looked for by law enforcement at Jasper's porch?

We are unaware that that ever happened. I mean, we don't know about that case, whether it is—

But he said he kept the gun at Jasper's porch.

Why? Brandon Ashcraft said it was there for purposes of making deposits, money deposits, and that sort of thing.

All right. The gun was kept in a case.

We know that 3 witnesses saw the gun at Jasper's port in a case.

In a case. And a video showed him leaving Jasper's porch at an odd hour with the case.

Well, at 1 o'clock, but I mean, these were people who were working late nights.

Did he work that night?

That I don't know. Okay. I know he was at the bar.

He's seen leaving Jasper's porch at 1:00 AM with a black case.

With a black case.

The same night he says, I wonder if this will be the night she does it.

Yes. But then, I mean, this is something that we know that Michelle Passio had. I mean, there was clearly trouble in the marriage, and there was clearly a lot of friction between them. And we know that she had some mental health issues and that she was seeing a psychiatrist and all the rest of it. So I mean, the idea that she was profoundly unhappy was not something that just sort of came out of nowhere. I mean, I think everyone kind of realized that she was particularly troubled at this part, at this time. But I do want to— I mean, to go back to the case, I mean, we do know about a Black case, but we don't know, for example, whether that was the kind of case that was specific to a particular kind of gun.

Was the case found at the— near her body?

It was found in the trunk of a car, of Pacio's car.

That helps you. And we don't know whether it was— there a gun in it?

No, the gun was— there was a gun that was found in the home. We don't know whether or not this black case is something that, you know, working in a restaurant, whether it's the kind of case that can hold money, whether it could hold like Jägermeister. I mean, we don't know whether it was specifically like a gun case, for example. I don't think the testimony regarding that case is as probative as the state alleged. I think as so much else in this case, the state was asking the jury to speculate about what was in that case. As to the prejudice here, the state relied on a number of these these facts, these facts about— delivered by the first responders as to time of death. In closing arguments, they talked about how she was ashen, how women don't commit suicide by the use of firearms. I mean, that was another sort of fact that they trotted out that just has absolutely no basis. I mean, it's just not accurate information.

One of the points that was objected to, in terms of evidence, was the use of the Facebook page. Let's assume that, I'm gonna ask you for purposes of my question, that that shouldn't have been let in. What difference did it make?

I think that this was a close call, and I think in a case where it really was a he said, she said sort of case, there were factors, indicating both that this possibility, this is a suicide, possibility this is a murder. And when you have a piece of evidence like that that just so clearly should not have come in and that was used for such nefarious arguments, I mean, that was the purpose of this, right? I mean, to say that he was leading this other life. That in a case like this, it would be harmful for any juror who's sitting on the fence.

So you're not saying it was a close call to let this evidence in, you're saying this was a close case.

I think this is a close case. Okay. And I can imagine a case in which the admission of this would not be particularly prejudicial, but I think in this case, it especially was. Respectfully, Your Honors, we're asking that this court reverse this conviction, because the evidence was not—

Well, going back to what you just said, so, they— They put it in evidence, and then there's no mention of it, until the very end of the closing argument. And, at the very end of the closing argument, the solicitor does do what you said, but doesn't really, I mean, references the Facebook post, but I mean, I don't really get that the Facebook post, even though it's referenced, is actually a part of that closing argument. To which, again, there was no objection.

Well, I mean, but so when they admitted this in, I mean, it was after some cross-examination with the father. I mean, and this was, you know, so they used the presence of this as more than just, you know, here it is. I mean, it's also sort of undermined this belief that the father actually knows his son. I mean, so even though that was, you know, admitted into evidence, it was kind of this secondary sort of purpose of it, right?

It was admitted for the, if I may, Mr. Chief Justice, it was admitted for the purpose to challenge the veracity or bias of the petitioner's father, right, in his statement as to how well he knew his son, right? And it was never used for that purpose, correct? It was used to attack the character and be the final summation of the prosecutor in closing argument.

I mean, and to show that, you know, he is sort of a fundamentally kind of devious person. I mean, it was improper.

Right. You're getting friendly questions on this issue.

I am. I am. And I am trying to appreciate that, Your Honor. And that is, if there are no other questions, I see my time is out.

Thank you. Thank you. We'll hear again from you in reply, Ms. Franklin Bass. Mr. Maye.

Good morning, may it please the court. Your Honors, in the two issues presented, there was no error by the trial court, and there was no abuse of discretion by the trial court. The trial court was correct in its rulings, and the Court of Appeals was correct to affirm. The facts guide us in this case, and I want to walk this court through those facts. This is a circumstantial evidence case. State will not contest that issue. And under circumstantial evidence case, the standard is there has to be substantial circumstantial evidence demonstrating, tending to—

Give us some of that substantial circumstantial evidence.

I'm sorry, Your Honor?

That circumstantial evidence, share it with us.

Absolutely, Your Honor. First of all, I want to categorize it into 4 different categories. Before I even get into what's in those categories, I want to mention the fact that the fact I can come up with 4 different categories of evidence is already pretty good proof that there was substantial circumstantial evidence in this case. But, 4 categories are this: inconsistency in the defense's theory of the case, and the facts that support it, the timing in which the crime actually occurred, and the facts that give the timing, the gun, and what I have come to call the baby bottle ruse. Now, Your Honors, let's start with inconsistency. Before we even get into the evidence, the defense's opening statement suggests to the jury that their theory of the case is that during the, the victim pulls out, apparently out of a holster, the gun off of the defendant, they get into a tussle. On the second shot, he claims he was holding the gun and, and got struck by the, the slide or injured somehow in the firing, and then was backed away or pulled back— I forget the exact language of the opening— pulled back and then watched as his wife committed the third shot unimpeded that killed her. That theory is explicitly challenged by the statement of the petitioner to Otto Helbig, who said, "When he talked to me about how his hand was injured, he said his hand was on the gun during the fatal shot, not the second shot." That is a pretty crucial differing fact about whether we are to believe the defendant's story of how this took place. In addition to that, there is also the question of the inconsistency of whether victim fired into the air, or fired at petitioner, and simply missed. Otto says that the petitioner explicitly said, "She fired at me, but missed." However, multiple times in the recording for the 911 call, You can hear her say, "She fired into the air." Hear him say. Him say, apologize. That is a distinguishing fact between the theory that the defense wants this jury to believe, and the facts that are being presented to them. In addition to that, across the 6 or 7 minutes of 911 phone call, The petitioner changes the number of shots 4 times. He starts with 3, then he says it's 4, then he says it's 3, and at the very end, when he's discussing with the officer after he's been told that his, uh, wife is dead, he goes back to 4. Now, if you're wanting the jury to believe you, and they're hearing a 911 call, and you can't get straight the number of shots that were fired, not just once, but 4 separate times, that goes against his credibility of the theory of this case. Uh, in addition to that, there's inconsistency in how the bullet strike locations coordinated to the position of the victim at the time of where she ultimately rested. The bullet strikes indicate that they were behind the victim. Into the adjacent rooms. Now, if you consider that, whether it's in the air or at him, that would not coordinate with the defense's theory. So again, now you have forensics demonstrating that the story we're being told maybe doesn't really fit the story that's actually taking place. Uh, and just two others, uh, during the 911 call, petitioner says that his wife was really drunk. We have blood alcohol content proof that she was under the legal limit to drive.

You can still be intoxicated, though.

You can still be intoxicated, Your Honor, but the manner—

She was 0.079?

I believe it was 0.073.

Okay.

But—

She wasn't at a 0.08?

But she was not at a 0.08. She could legally get in a car at the time of her death.

Can still be intoxicated with less than a 0.08.

I would agree with that in the general sense, Your Honor.

I don't think you need to dwell on that.

Okay, I'll move on then.

They might, but I don't.

And then the last one, and this is just something that doesn't seem to make sense in the general theme of what he's trying to say. He says a couple of times, "I can't see, the victim knocked out my contacts." My wife has contacts. I've been fortunate enough not to have them. You're wanting the jury to believe both contacts got knocked out, and you can't see. That's difficult to believe, but I'll buy it. But in addition to that, in this entire span of him talking on the 911 call, and he claiming he can't see, and that's causing him to struggle, he never bothers to turn on a light. I can't make any sense of it, and I doubt the jury could either. That concludes the inconsistency category. Moving on to the timing. The State was thorough in demonstrating to this jury that the timing in which the defense wanted the jury to believe did not match the facts. Two different witnesses, Ivy Bryant said, "I was outside the night that this took place. I heard the four gunshots. I went inside at 3 o'clock." Now, petitioner has said that she claimed that the shots took place at 1:00 a.m. I don't believe that is a fully accurate representation of the record. She was asked, on cross-examination, "Do you recall the shots being taken at 1:00 a.m.?" She goes, "Around about that time. It's been 2 years." The follow-up is, "So, between 1:00 and 3:00?" That's the cross. On direct, she said, that her best recollection is that it took place sometime between 2:30 and 3:00. And that testimony fits very nicely into the State's theory of the case. So you have one witness saying, "Here's when I actually heard shots of my nearby neighbor." The State doesn't just stop with that. They go one step further, and they provide the jury a witness who says, "I was awake and outside at the time that the defense wants you to think the," the shots took place, and I didn't hear a thing. Walking the dog and feeding the cats, and not a single indication of 4 different gunshots from a neighbor that lives right behind the petitioner. Collectively, that is strong evidence. I heard it, it happened here. I didn't hear it, and they want you to believe it happened the other way. In addition to that, Your Honors, a lot of testimony about dried coagulated blood. Between the time of the initiated 911 call and the first officer arriving was 5 minutes and 13 seconds. You can, you can hear the officer on the recording and you can look at the recording time. That is, in doing this job, that's a very fast response time, first of all. But secondly, none of the witnesses testified to being experts about this topic. They simply testified to what their observations were at the scene, and their observations were, despite the tons of blood at the scene, none of it was dripping.

What time did the officer arrive?

The officer arrived at 6:00 a.m. Uh, the officer— let me clarify. The testimony demonstrates that the officer said, "I arrived approximately 6:00 a.m." The record also demonstrates the 911 call was placed at 5:52 AM. It makes logical sense that you have a timer on the 911 call. You can actually track the exact number of minutes. But by the time the officers were on the scene, 6 to 8 minutes had passed, no more. And that's everybody. That's 3 different officers and EMS.

They were all there. Where'd you get the 5 minutes and 13 seconds?

Figure?

Where do I get that figure, Your Honor? Yeah. Okay, to clarify, if we start the clock from the moment— let's pretend for a moment that the petitioner did not delay in calling 911, like the State's theory is, or excuse me, like the defense's theory is, that he was urgent, "Oh my gosh, my wife's been shot, I have to call and get help." From the moment he dials 911, and that call connects, there is a timer on the 911 call that is on the exhibit. You can watch the timer continue. You can hear the officer arrive on the scene, and you can hear petitioner start to talk to the officer arriving at 5 minutes and 13 seconds. That's why I can say that's how fast they got there, because clearly he's talking to someone.

You've got two, I guess, additional points And I sure want to ask you about the Facebook thing. I mean, you can just go in and fact, they had a rocky marriage, she had an affair with one of his employees, she had been to see a divorce lawyer, they had an altercation at the bar that evening, words were exchanged, he knocked a cigarette out of her hand, he then goes and retrieves the black case, et cetera, et cetera. If you want to make those points briefly, I want to get to the Facebook.

Certainly, Your Honor. I want to break that down into two compartments for the court today. The first is the admission of the evidence during the trial, during the case in chief of the defense. And then the second is going to be at closing. So that's how I'm going to differentiate for the court.

Are you now talking about the Facebook evidence?

Yes, I am.

Okay, thank you.

In the lead-up to the Facebook topic coming to the court's attention, the theme of the cross-examination that had taken place thus far with this witness, the petitioner's father, was that despite his claims of being very, very close to his son and being very familiar with his son and knowing all about his son, there were holes in that, and he was not aware of particularly troubling behaviors. In that theme of maybe you don't know your son as well as you think, which was the theme of Cross, we get to the Facebook question. Facebook gets raised. There is a bench conference, which means the judge at trial was already more aware of what the record tells us than we are available to us today. But beyond the bench conference, he asked the witness, "Are you Facebook friends with your son?" "Yes, I am." "Are you familiar with your son's Facebook profile page?" "Yes, I am." Now, I, my father passed away, but we both had a Facebook page and we were both friends. I can guarantee you he would have said, I don't know a thing about my son's Facebook page. And we are exceptionally close before his passing. There was nothing compelling this witness to say, I'm, I'm clearly very familiar with the Facebook page. But his tendency to overrepresent how familiar he was with his son and try and demonstrate his son as being this morally superior character.

What does—

okay, I guess—

So, that's the relevance. The relevance is the veracity of petitioner's father. Yes. As to his closeness with his son, the petitioner.

Summarized, yes. And I want to break that down for you, Your Honor.

Well, the brief. It was relevant because, quote, "The text on the profile page casts doubt," upon the veracity of petitioner's father's self-professed closeness with petitioner. How was the evidence used at trial?

Okay, the easy answer to that, Your Honor, is during the cross-examination, the question that comes out is, he's already established he's familiar with the Facebook page. The question that comes out is, I've presented you the exhibit that I have not admitted yet, and the witness openly admits, wait, I'm not familiar with this portion. And he doesn't tell the jury what portion, he just says, oh, never mind, let me backtrack, I'm not as familiar as I just told you. Now the jury doesn't know how or why.

Just because he didn't know about the dude comment? I mean, come on.

I, you know, I'm, I'm just explaining how the jury would pres— would hear this evidence. They've, they've been told Because we haven't even gotten to the content yet.

Well, there's nothing to impeach. I mean, if we're going to go down that horse, ride that horse, he's— if the purpose is to impeach him because of his alleged closeness with his son, he backtracks before and admits he overstated his closeness and he didn't know anything about the quote. It comes in— you, you see where we're going with this. You didn't try the case.

I didn't try the case, Your Honor, and I can see where this is going. What overreach?

What overreach to put this in, then play whack-a-mole with it, vis-à-vis the petitioner, in closing argument?

I would argue, Your Honor, I would argue that the evidence goes further than that, and I hadn't gotten a chance to argue the other ways in which the evidence can be viewed as relevant. The first thing is just the neutral argument of completing the impeachment to show you've now said that you're not familiar, let's tell the jury in what way. That's the neutral argument. The micro relevance, and I don't mean micro as in small, I mean micro in the economy, micro versus macro, is that this father had already demonstrated that he tends to have a blind spot in recognizing his son's behaviors.

So what?

Yeah, this is further evidence that he is not— he is blind to recognizing his son's potential for putting on a face for art.

Read the quote?

Yes, Your Honor. "I know who I am.

I'm a dude playing a dude disguised as another dude." What if he just thought that was a pretty cool comment from a movie that not many people watched?

That is certainly possible, Your Honor, and as circumstantial evidence—

What if he had on there, "Riding down the road, trying to loosen my load, I got 7 women on my mind"? I mean, I'm serious. That's a great question. Is that relevant to the father's credibility?

I would argue it is, Your Honor, and it's a circumstantial question for the jury to make up their mind about.

Okay, fine. Leave it alone. Put it in evidence. What a stretch. But put it in evidence. You don't bring it out of the pit, and then use it for an entirely different purpose.

Your Honor, the evidence goes to—

It wasn't used in closing to attack or impeach the father's credibility. It was used to paint the petitioner as a bad, evil guy. It was character evidence.

Your Honor, if I may res— I'm out of time.

Yes, go up to the Chief Justice.

I may respond? The evidence during impeachment got to the issue of the father's inability to recognize the son's capability of putting on a show. Putting on a face for other people. He's already been cross-examined to say, well, your son just told a woman that he's a law enforcement officer that's pretending to be a specialist in bank robberies. Father had no idea. This is in that same vein. It goes to show that the father does not really recognize his son has the ability to fool people and put on a face. And when they used it at closing, their purpose was very minimally to close out the arguments of the state, to say, don't let this guy's persona that he's put in front of you today, with the theory of defense that he's this good husband concerned about his wife's mental health—

Which is character evidence.

I would disagree that it's character evidence. I would say that it is— The defense's entire theme is the victim was not mentally stable, and that he was the good husband. This evidence goes to contract— contradict the defense's theme of the case.

Character evidence. And with my earlier comment about the line from a song, I'm not meaning to be flippant, because this was, somebody died.

I agree.

But what I'm getting at is the fact that in a murder case, you put in evidence, and I'm not, I'm talking about the prosecution puts in evidence, for the stated premise of impeaching the father's credibility, but in reality, during closing, it was a linchpin to a character reference. And that's your argument today, that it was indicative of the defendant's character.

I would disagree with the stint that it was admitted during cross-examination on the father's inability to, to articulate and recognize certain issues with his son, that go to the defense's theme of, "I'm the right one in this marriage." Well then, why wasn't it argued that way in closing, if that was the pure, driven snow purpose? I believe that it was, Your Honor.

You're now attributing a different reason for the introduction than is quoted in your brief. I just read you what's quoted in the brief. The sole, exclusive, only reason it was admitted was the veracity or bias of the petitioner's father, vis-à-vis his purported closeness, or lack thereof, regarding his son.

If I may continue to respond?

Yes, sir.

Your Honor, I don't want to be repetitive, but I feel like I still have to make the same argument. The issue of the father's veracity was to the topic of not recognizing his son's ability to put on a face for other people. Those two issues are inextricably linked. The whole cross-examination of the father was, "You don't know your son as well as you think you do, in these certain ways." And in that certain way, this is what the evidence tended to show. If my brief was somehow insufficient, I would certainly never want the court to—

No, the brief mirrors The statements made when it was admitted. It was admitted for the purpose of attacking the petitioner's father's bias, veracity, regarding his purported closeness, or lack of closeness, with his son. So, the brief, no fault there at all. And I know you didn't try the case. You're riding, you're playing the cards you were dealt.

So, it's—

I also didn't write the, I took this up on, after cert was granted, as well. That's neither here, nor there. Your Honor, the argument— You're off the hook.

You're off the hook.

My argument would still be the same, is that the nature of the veracity of the father's witness dealt with not seeing the issues with the father, and that's what the evidence got to. I felt like it was a natural extension of that argument.

Thank you, sir. Thank you, Chief.

Thank you, Your Honor.

Ms. Franklin Bass, in reply.

Thank you, Your Honor. It's just, you know, yes, of course there were inconsistencies at the trial. I mean, this is a trial after all, and at the end of the day, the question is, I mean, who does the jury believe? And that's why when you have 4 first responders who come in with information that is not accurate, when you have a Facebook meme that is sort of elevated—

can I go to one of his timing questions real quickly?

Certainly.

You have to agree that the one witness did say between 2:30 and 3:00, correct?

I mean, that's— that is correct.

And he called 911 at—

I thought it was 5:52.

Okay, so what's he doing during that 3 hours? I mean, working, working up perhaps concocted state of panic.

Well, I mean, so that is what, I think that's what the State's theory is. Of course, it would allege that also, that this murder was something that he had sort of been contemplating, in which case, why would you need the additional 2 or 3 hours? I mean, I just don't think that the State's theory is necessarily very coherent on this point.

With a witness who says she heard 3 gunshots between 2:30 and 3:00, and not a phone call to 911 until 3 hours later?

Well, so she initially said 1 o'clock.

Um, and she said— That would make it even longer.

That was cross-examination.

Well, that's it.

When she was pushed.

And it looks like that's what she had told one of the officers, sort of initially. I mean, so at some point, she realized that the 1 o'clock couldn't be accurate, because obviously there's a picture of him on a video, and then there's a later phone call at 2 o'clock.

Didn't on direct she say 2:30 to 3? Isn't that what she said on direct?

Eventually, yes, but I mean, there was some movement in this time frame.

We're on the denial of a directed verdict motion, and we have a standard of review.

Yes. Yes, Your Honor.

And going back to the case, he's seen carrying a case. Yes. And the only case that's found is an empty case. Is there a reasonable circumstantial inference to be drawn that a gun was in the case?

We know that there was a case. I don't know that we knew that it's empty.

Why would you get an empty case?

We don't know that it's empty. We know that there was a case that was taken out of his car, and that was admitted into evidence.

That was empty.

I mean—

But you said—

I mean, it's right here. But I don't know what else may have been in the case, or what kind of case we're talking. I don't know if this is a gun case, or whether or not this is just a case of what happened to secure the gun.

Does it matter that he told one of the witnesses that he was going to Jasper's porch to get some alcohol? And the fact that they'd already lost their license, alcohol license?

Well, the fact that he lost the alcohol license—

And the gun was kept at Jasper's Pub?

I mean, the fact that he lost—

In the same box that we were talking about? The same box shows up at the home, or in his vehicle? Absolutely.

So I guess, I mean, sort of a couple—

That is not to be considered, those factors?

Well, so a couple of points as to that. I mean, the fact that they had lost their liquor license merely means that they weren't allowed to sell it. Doesn't mean that the alcohol did not—

So you're suggesting the alcohol was in the box box he took from Jasper Port?

I mean, that's what he said. And this is, I mean, again, this is, this is the swearing.

There was alcohol in that box?

I mean, I have no idea whether there was alcohol in it, was taken into that, into the house. I mean, this is sort of the speculation that, I mean, we just don't have the answers to it. I mean, this is the swearing. We're required to see the evidence in the view that favors the state, which is why when you're looking at the, the evidence as a whole as it was presented when you have the false information coming from these first responders, when you have this Facebook meme that is elevated to—

Is it not to be considered that why would you go to the restaurant to get a gun and you claim that your wife is suicidal? That is not to be considered as well?

It is evidence. It is evidence that was admitted at trial. It's part of the calculation in going into determining whether there was substantial circumstantial evidence to prove the case. At the end of the day, a lot of the evidence that came into this trial was not probative, and was highly prejudicial, unduly prejudicial, and for that reason, this court should reverse this conviction.

Thank you, ma'am. Any further questions for Ms. Franklin Best?

No?

No, sir.

Thank you very much.

Thank you.

We're in recess.