Transcription
Miss Lewis, could we address something outside the club to the jury before?
Of course. Folks, let's give you an opportunity to stretch your legs, use the restroom. Please rise for the journey. Have a seat. Your honor, at this point, we'd like to make a motion for mistrial and make a proffer on it.
Um, first of all, at multiple points in the prosecution's closing, he made efforts to dehumanize the defendant. In fact, calling her a black widow, comparing her to a deadly spider, calling her a narcissist when there's been no evidence introduced to support that, no expert testimony, nothing of the nature.
Um, furthermore, it's completely improper for the prosecution to comment on her demeanor while she sat at council table. That's a comment on her failure to testify. Um, asking the jury to take into consideration facial expressions which in his opinion may or may not have happened. Um, I don't know what he's basing that on. Um, but it's improper and it's it's our suggestion that is a comment on her failure to testify by uh revealing what her response to testimony was is calling upon her to uh testify in this case.
Um, furthermore, in the closing, there was wild speculation on what was in Corey Richen's mind, completely made up by Mr. Bworth with no evidence whatsoever to support it.
Um, also, Mr. Bworth wrongly told the jury that giving any illicit street drugs to Mr. Richens was sufficient to support aggravated murder. That in fact is not true. The only drug that would support aggravated murder would be fentinyl. What he what he said to the contrary is not consistent with the court's instructions and we would ask that that be corrected with a curative instruction.
Um, that they should listen, they should follow the court's instructions on what it takes. Um, it would not be sufficient if she bought some other type of drug that did not cause his death. That's just not the law.
Um, let's see. Just a moment. I think that's it, your honor.
Mr. Bledworth, forgive me. I need a little bit more detail as I go through these.
Yeah. Which of these do you want a curative instruction regarding? And which of these are you moving for a mistrial on?
Moving for mistrial on all of it, your honor. The curative instruction, I think, is required by the wrongful information that giving him any illicit street drug is sufficient to support aggravated murder. That's just not true.
Um, and that's super important because if they do believe that, there is evidence to make a finding that there was oxycodone. Um, so and there was no oxycodone found in his body. So that's just that can't support a jury. I mean, a a conviction. So that's what I think requires the curative instruction. The rest of it I don't know any way you can cure it.
Your honor, the uh Utah Court of Appeals disagrees with you regarding the prosecutor's comments. A long line of cases talk about the potential prejuditial effect of an improper comment by a prosecutor only being able to be measured after the defense gives its closing and the state gives its rebuttal and we consider any curative instructions. What's your alternative position there? I could, for example, uh instruct the jury that they that Mr. Bworth's observations of Ms. Richen's demeanor are not evidence and they are to rely uh on their observations of M. Richens if any only.
I just don't even think that her demeanor is proper to rely upon because she didn't testify.
I mean, she burst out in laughter during the uh showing of the deedants's body. I don't think it would be appropriate for me to tell the jury you can't possibly consider that.
I'm sorry, but I have no idea what you're talking about. I totally trust you, but I don't I have no recollection of any laughter when his body was shot.
No, it was a hypothetical. Ms. Netor the bounds of your categorical uh statement that the jury can never consider the defendant's demeanor.
I'm sorry. I thought you were saying she did that and I was just horrified.
So, please stay focused. But I am focused. I just misheard you. Um, so um I mean, is what you're asking me is do we want a curative instruction now? Do we want to wait until later? Is that what the court is asking?
Right.
Court's indulgence for just a moment.
Okay. I think we do want it now. If we can get one now.
Um, let's hash that out for a second. What I proposed was an instruction that uh the jury may rely um on their own observations, if any, of Ms. Richen's demeanor in trial. Uh, but they cannot rely on council statements regarding what Ms. Richen's demeanor was. I want to be clear. There were no comments regarding her silence.
Well, I mean, it's our position that when you comment on how she looked while she remained silent at council table, that is a comment on her silence in our estimation. Um, but I agree that he didn't say anything specifically about silence. Um, that that instruction would be preferable to no instruction, I think.
Okay. And then the Black Widow comment was connected to comments that were made by Chelsea Barney. Correct.
I don't I mean, they came out of his mouth in closing. and he specifically referenced Chelsea Barney's testimony. Is it your position that Chelsea Barney never used that phrase or words?
She did.
I don't recall her saying that, but it's been a long trial and I would not want to make that that I 1,000% am sure, but I certainly don't recall that. It was in the recorded phone call with um Bryce Kenson.
And then everybody is speculating as to defendant state of mind. It's one of the factual issues that the jury will have to determine according to circumstantial evidence because as we instruct them there's no direct evidence of what's in her mind. Why was anything that Mr. Bworth said uh regarding the inferences that can be drawn regarding her state of mind inappropriate?
Because they were made up out of whole cloth with no evidence to back it up.
You're going to have to be more specific.
So he went to great lengths to fantasize about what she was thinking about when there's been no evidence to that. He could have certainly said, "Look, she could have been thinking this. She could have been thinking that." He didn't. He gave them what was in her mind, which is not is just based on things he made up in his own head, not based on evidence.
Why aren't they all based on his view of the evidence that came in at trial? Was there any references to evidence that did not come in?
Well, first of all, calling her a narcissist, I mean, that didn't come in. There was no testimony that she's ever been diagnosed to have a narcissistic personality disorder. There's no evidence at all about her mental condition. Um, and then when he talked about um her putting um the reasoning why she picked certain days to get more attention that nothing about that has ever come in to play ever. I mean, that's just one of many. He went through lots of scenarios about what she was thinking as if it was a fact and it wasn't. So, I mean, I think she he can encourage the jury to use circumstantial evidence to try to reach their own conclusions, but he can't say this was in her mind when he doesn't know.
Okay. Anything else?
I think that's it, your honor.
Uh, Mr. Blew, go ahead, sir.
Your honor, were there any I don't know. Were there any particular uh points that defense council raised that remain unresolved in the court's mind?
Any objection to the proposed instruction uh regarding the jury must rely on their own observations, if any, of defendants's demeanor, but cannot consider council's uh statements regarding her demeanor.
No objection.
Okay. And then the statement regarding giving any kind of elicit street drug is sufficient to show uh the murder count.
Talk to me about that. I did catch that comment. I they're not making that one up. Now, there was more and in the total course of um the state's initial opening, I think you made it clear uh that you were encouraging the jury to make specific findings beyond a reasonable doubt regarding each required element.
Mhm.
There was that initial comment though. I don't think an instruction regarding I'm having trouble crafting a curative instruction that doesn't just give a theory of the case. What's your view of this?
Yeah, I don't think anything needs to be cured. The state does not have to prove that the defendant intended to murder Eric Richens with fentinel.
True. The state only needs to prove that the defendant intended to murder him with the illicit street drugs that she purchased from Carmen Lobber and that they contained fentinel substance.
Yeah.
Well, on I'm sorry, on the second element or the aggravator because there's a distinction there.
I think on both she has to actually knowingly or intentionally cause the death for count one. So if she buys something that she thinks is Oxycontton, correct? and intends the giving of the oxycontton to kill him. And it turns out that what she got was blue M30s that had fentanyl in that killed him. It the difference between aggravated murder and murder is is irrelevant. She has committed an aggravated murder. What the distinction I think that I acknowledge is that she doesn't have to intend to kill him with fentanyl. She has to intend to kill him with poison. Even if she thought she was getting one and got the other.
Correct.
As long as it worked. Correct.
She committed the crime.
Correct. I And I think that's what I said throughout.
I think that is the weight of the argument overall that you made. Um
I if there's a particular sentence I said that is different than that then I you know I agree we would we should cure it. But I don't think I said anything different than that on this one. Ms. Netor. I think the better course rather than for the court to insert itself at this point is to allow the rest of closing to play out and we can readress this issue at the end.
Okay.
I I expect that this issue will get uh teased out in detail through Ms. Lewis's closing and the state's rebuttal. Uh give me a moment to collect my thoughts regarding the others. All right. Thank you. Court will be in recess until Oh, I'm sorry. Go ahead.
I'm sorry, Ara. Can I just maybe say one thing?
Yes, please.
Uh, the state did not refer to the defendant as a narcissist. The state said that that was a narcissistic injury.
Right. I got it.
Okay. I'll be back. Uh uh council, this is what I propose. Let me give you a ruling regarding defendants's motion for mistrial. Then I'd propose I give the jury the curative instruction related to evidence of defendants's demeanor. Then I'd propose we take a lunch break, Miss Lewis, so we're not interrupting your closing.
I agree with that.
Okay. Any objection, Mr. Bledworth?
No objection, your honor.
All right. The issue before the court is a motion for mistrial and request for curative instruction in the alternative made by defendant on the record this morning. The motion for mistrial is based upon several comments made by uh Mr. Bworth in the state's initial opening that in defendants view are so improper as to require a mistrial. Uh the court will address defendants's arguments one at a time. First, the defendant argues that Mr. Bworth's reference to Chelsea Barney um using the phrase black widow during uh a recorded telephone conversation that was played for the jury, though Chelsea Barney's comment was not admitted for its truth. uh improperly compares defendant to some kind of um terrible insect. The court listened to the comment in real time during the state's opening. That is not a fair characterization. Rather, that was a rhetorical flourish by Mr. bloodw worth comparing uh comments by one witness or the defendant herself to her becoming a widow to Chelsea Barney uh referring to her being referred to or considered as a black widow. It's not a reference to an insect. Rather, it's a reference to in the court's view of Chelsea Barney's comment a spouse that kills another spouse. There's nothing so improper or improper at all about that comparison which has a factual foundation in Chelsea Barney's statements that were played for the jury as to support a request for mistrial or require any other relief. Moreover, uh the defendant requested mistrial based upon uh in defendants's view Mr. Bworth characterizing Ms. his richens as a narcissist. Defendant argues that that is unsupported and improper expert testimony from counsel that has no basis in the evidence. The actual phrase used by Mr. Bworth was narcissistic injury in relation to uh Ms. Richen's hearing from Brooke Carrington when she testified uh that in the state's view uh defendants appearances of wealth and success were not accurate. Uh that is permissible line of advocacy during closing argument. It is not testifying in any way by Mr. Bworth. It is not otherwise prejuditial or unfairly prejuditial. With respect to Mr. Bworth's uh argument related to defendants's demeanor. The court determines that in an abundance of caution is appropriate to instruct the jury that they may consider their observations of defendants's demeanor in the courtroom if any. But they may not consider council's statements regarding council's observations of defendants's demeanor. Uh as council statements and council's observations are not evidence. Moreover, the court notes that uh Mr. Bworth did not comment on Ms. Richen's silence or in other way otherwise implicate her uh protected right to choose not to testify. Mr. Bworth's uh statements regarding what the state believes it has proven regarding defendant state of mind at various points in time is permissible advocacy based upon evidence in the record and defendants council will have ample opportunity to try to persuade the jury to draw different inferences from that same evidence regarding defendant's state of mind. There's no basis for a mistrial there. And regarding any um misstatement by Mr. Bworth in his initial comments regarding count one, that may have created confusion as to whether the state needed to show that regardless of her intent to uh purchase, secure, or otherwise administer fentinel, all the state needs to show is that Cory Richens intended to purchase, secure, and administer poison, and that it happened to contain fentanyl. Uh that was on the one hand borne out in detail through the rest of the state's initial closing and the court expects will be borne out in detail through defendants's closing and the state's rebuttal. The court determines that no curative instruction is necessary on that point at this time. Mr. Bledworth, any clarification?
No, your honor. Ms. Nesser.
No, your honor.
Okay. All right.