Day 10, February 2, 2009

Part one – Jury Instructions…

Court convened at 12:45. Judge Arrington brought up the subject of Jury Instructions.

The defense objects to Capital Murder, 1st Degree Murder, 2nd Degree Murder, and Voluntary Manslaughter. They maintain that the prosecution hasn’t proved its case for anything except Involuntary Manslaughter. Prosecution wants all 5 options included in jury deliberation – Judge Arrington agreed – all 5 options will be included in Jury Instructions.

Defense objects to Manufacture not for Personal Use –Again says that Prosecution hasn’t proved its case – Judge Arrington disagreed, Manufacture not for Personal Use stands. So does the Use of Firearm charge.

Recess at 1:25. Reconvened at 1:40. Recessed at 1:47. Reconvened at 2:08.

Jury brought in at 2:10.

Judge Arrington commenced Jury Instructions.

The Court must instruct the jury about the applicable law.

The defendant is presumed innocent, and must be proven guilty beyond a reasonable doubt.

The jury judges the facts and credibility of the witness.

The jury may not disregard reasonable testimony.

The jury must use Common Sense.

Each element doesn’t require direct evidence; circumstantial evidence can be used.

To find the defendant guilty of Capital Murder, the prosecution;

  • Must prove victim was killed.
  • Must prove it was willful and deliberate.
  • Must prove Pre-Meditation.
  • Must prove Malice.
  • Must prove it was a Police Officer performing his duty.

To find the defendant guilty of 1st Degree Murder, the prosecution;

  • Must prove victim was killed.
  • Must prove it was willful and deliberate.
  • Must prove Pre-Meditation.
  • Must prove Malice.

To find the defendant guilty of 2nd Degree Murder, the prosecution;

  • Must prove victim was killed.
  • Must prove it was willful and deliberate.
  • Must prove Malice.

To find the defendant guilty of Voluntary Manslaughter, the prosecution;

  • Must prove victim was killed.
  • Must prove it was intentional and impassioned.

To find the defendant guilty of Involuntary Manslaughter, the prosecution;

  • Must prove victim was killed.
  • Must prove it was callous disregard.

A finding of Not Guilty will result if the jury determines that the prosecution has not proved its case.

For any level of murder, malice must be proved – if there is no malice, then the charge is manslaughter.

To find the defendant guilty of the firearm charge, the prosecution;

  • Must prove a Firearm was used
  • Must prove a felony was committed.

To find the defendant guilty of Manufacture not for Personal Use, the prosecution;

  • Must prove manufacture.
  • Must prove distribution.

Failure to prove, results in finding of Not Guilty. (?)

If there is reasonable doubt between Capital Murder and 1st Degree Murder;

A finding of Guilty of 1st Degree Murder results.

If there is reasonable doubt between 1st Degree Murder and 2nd Degree Murder;

A finding of 2nd Degree Murder results.

If there is reasonable doubt between 2nd Degree Murder and Voluntary Manslaughter;

A finding of Voluntary Manslaughter results.

If there is reasonable doubt between Voluntary and Involuntary Manslaughter;

A finding of Involuntary Manslaughter results.

Self Defense requires that reasonable fear of danger by the defendant is believed, based on assessing the perceptions of the defendant, of the event.

Criminal liability is assessed based on negligence and callous disregard.

The prosecution does not have to prove motive.

Part two – Conway’s closing…

Mr. Conway began his closing arguments by expressing appreciation to the jury for their time and attention. He stated that all parties involved (defense, prosecution, witnesses, experts, etc.) put forth the evidence in a fair and professional manner. He stated that he appreciated the professionalism demonstrated by Mr. Broccoletti, and the defense team.

Then, he stated that Mr. Frederick was guilty of Capital Murder, Use of a Firearm in Commission of a Felony, and Manufacturing, not for Personal Use. He assured the jury that they are the judges of facts and the credibility of the witnesses, and asked that they apply Common Sense, in their deliberations.

He stated that he, personally, tends to simplify things, so he wanted to break things down into three categories; 1) Physical Evidence 2) Testimony and 3) Admissions by the defendant. He said that Mr. Frederick was a liar.

In the matter of the murder of Detective Shivers, he said that the prosecution had shown the evidence of the gun, and thru testimony, had shown beyond a reasonable doubt, that Mr. Frederick knew it was the police, when he shot.

He then brought up the witnesses; criminals, felons, those of moral turpitude, and Police Officers. He reminded the jury that during jury selection, they had all been asked if they could look past the background of a witness, and hear the testimony the witness gave, and they had all answered “yes.” He also reminded them that they all said that they wouldn’t assume that a Police officer would be a more credible witness.

He said that the Chesapeake Police Department is a Professional organization. He pointed out that the jury had heard from the “CI” and his “associates – he said that the one premise regarding criminals is that they hide their acts. He said that Ryan Frederick is “two-faced” a “Jekyll and Hyde,” and that the evidence bears that out.

He said that the evidence shows that Mr. Frederick was Manufacturing, not for personal use – he said that the prosecution has the physical evidence, witness testimony and admission of the defendant to bear this out.

He demonstrated the physical evidence by showing pictures of;

Magazines,
Marijuana Plants (from books and magazines, not Mr. Fredericks garage,
The sofa, baggie, loose shake, shredder and bong, in the second bedroom.
He acknowledged that he had no plants, scales, packaging supplies, or large amounts of money. He reminded the jury that the prosecution expert, Detective Meinhart (sp), had stated that the grow operation that he had was too sophisticated to be simply for personal use only.

He stated that Steven Wright is “not a good guy.” That he tried to get money and marijuana by turning in a friend, after stealing half of his marijuana. He said it wasn’t easy to get the truth out of Mr. Wright (he went thru the sequence of events of the burglary), but he was finally put on the stand because the prosecutors had “finally squeezed the truth out of him.”

He said that at the second meeting with Mr. Wright, and with Mr. Wright’s attorney present, they were able to get confirmation of their expert’s opinion – that Mr. Frederick was growing marijuana to sell it. He said that Mr. Frederick lied at his first interview (with Det. Winkelspecht) about growing marijuana, and that he was also giving it away and selling it.

He said that Mr. Wrights lies pale into insignificance, compared to Mr. Frederick. He stated that there is no question that he is guilty of the Capital Murder of Det. Shivers.

The prosecution has the physical evidence, the testimony of the police officers involved in the raid, and the re-enactment.

He said it was not a “No Knock” entry, that the police did everything they could to ensure that Mr. Frederick knew that it was the police, and gave him ample time to answer the door. He said that the CPD are well-trained, well-experienced professional police officers. They noticed a light change in the left front window, and announced “eight-ball.” The team in the rear could hear them. He went on to say that the rear team had been slowed by the gate, and Officer McGanty saw a silhouette of a person in the rearmost rear window, moving from right to left.

He discussed the testimony of Mr. Skeeter and Mr. Malone (inmate witnesses). He acknowledged that Mr. Skeeter is a “professional witness” and there is no hiding the fact that Mr. Skeeter wants out of jail. He asked the question “was he lying?” He answered it by saying “There’s no evidence of that.” He said that it doesn’t matter what the prosecution, Mr. Broccoletti, or the Portsmouth Commonwealth’s Attorney thinks about Mr. Skeeter – only the jury.

The Portsmouth Commonwealth’s Attorney doesn’t want to see Mr. Skeeter released – no prosecutor wants to see a criminal he’s convicted released. He said that Mr. Skeeter wrote letters, but that he was offered no time off his sentence to testify about Mr. Frederick. His testimony was because what Mr. Frederick did “wasn’t right.” Mr. Skeeter insisted that he was speaking the truth, and he was sticking to his story.

Mr. Malone was content with his 19 year sentence, He told the prosecutors that he had had several conversations with Mr. Frederick about the event, in which Mr. Frederick had told him about having “hollow point ammo” which he couldn’t have learned anywhere except from Mr. Frederick. He also said that Mr. Frederick threatened to have him and his family killed, as he had threatened Mr. Wright and his parents. This was the “Mr. Hyde” coming out of Mr. Frederick.

He spoke of Aaron Curley, who had no record, and who went along with the burglary. He acknowledged that Mr. Curley also lied in the first interview with the prosecutors. He said that Mr. Frederick had lied about not knowing the police were coming (to compare him unfavorable to Mr. Curley – I didn’t understand his point), and that Mr. Frederick didn’t report the break-in. Instead, he threw his plants away, put his equipment away, and kept his stash and smoking devices. Then he threatened Wright, his parents and the police.

Mr. Frederick said he was dozing in bed, and lied to Mrs. McReynolds about finding the keychain of his fiancées sister’s ex-boyfriend. In the interview he said “somebody knocked – no, nobody knocked,” and “it was scary when the face was in the door.” He said that “Mr. Frederick wants you to believe that he didn’t know that the police were at the door.” He stated that Mr. Frederick got rid of everything he had to show that he was selling – scales, baggies, etc. He said that Mr. Frederick is a liar, and the police are professional.

He said that Mr. Frederick claimed that Det. Shivers was reaching thru the door, and that he had said nothing about that at the interviews in the police car, and at police headquarters – he only claimed to have seen a face. He said we all know that Det. Shivers never reached thru the door.

He stated that Det. Barone said that they were trained not to reach thru holes. He said that after Barone hit the door the first time, and knocked out the panel, Sgt. Chambers told him to “hit it again,” but Mr. Frederick shot before he could. He said that the jury was entitled to infer that Mr. Frederick had lied to hide his guilt.

He said that Det. Duncan said that that was the fourth raid that they had conducted that week, and in the other three, guns were recovered, but that was the only one where a gun was used. He said the purpose of the police is to protect us, and to enforce the law.

He ended by showing pictures of Detective Shivers, in a graduation gown, standing with members of his family, and a final one of Det. Shivers, taken by the Medical Examiner that did the autopsy. Then he said “Mr. Frederick’s guilt is proven beyond reasonable doubt.”

Part three – Mr. Broccoletti’s closing…

Court recessed at 3:57 and reconvened at 4:11.

The jury was brought back in.

Mr. Broccoletti began by stating that nothing detrimental had been said by anyone, about Detective Shivers, as he had promised the jury, in his opening argument.

He stated that the verdict they reached was expected to be based on the facts, and not on emotion, or compassion for the victim. He asked that they be true to the oath that they took, when they were sworn in, as jurors.

He pointed out that a Not Guilty verdict was not to be seen as acceptance of the killing of a police officer, or for growing marijuana, or as an indictment of the Chesapeake Police – that all it says is that the prosecution has not proved its case beyond a reasonable doubt. No emotion, no sympathy.<

He asked “who are you as a jury?” – that a jury is a critical function of our justice system, that dates back nearly a thousand years, to the Magna Carat. He said that each juror brings his or her unique background, and life experience to the courtroom, and that the most important quality of a juror is Common Sense.

He said that together, we will go down the road that shows that the prosecution has not proven its case. He asked that they all apply their common sense, in the same way that they would, for any important decision.

He said that it was incredible, that they were asked to believe Jamal Skeeter, and wondered what interpretation the jury was likely to have of other evidence, since they expected the jury to believe Mr. Skeeter.

He pointed out that Mr. Skeeter had hired a lawyer to protect him from something, and that he had written a letter stating “I’ll never give up, I’ll never give up.” He said that Mr. Skeeter wrote another letter, claiming to know Michael Vick, and having fought dogs with him.

He reminded the jury that they were entitled to consider the appearance and manner of a witness, in determining the credibility of that witness.

He spoke about Mr. Malone – that he was happy with his 19 year sentence, and that no one could change it. He said that Mr. Malone was so low, that he brought Mrs. Shivers into it.

He brought up the burglars and imposters, Mr.Wright and Mr. Curley. He asked where Mr. Turnbull and Mr. Eckland were – why didn’t they testify? He asked why Wright needed to break in – he said that he’d been welcome for 6 months, visiting 3 times a week, and smoking with Mr. Frederick. He pointed out that Mr. Wright was locked up on 1/15/09 and claimed to have been threatened, which was a lie – the threats didn’t happen.

He said Mr. Curley claimed that Mr. Turnbull’s phone got so many calls that he finally put the phone down. Phone records only showed one call. Mr. Turnbull was dropped off at Chesapeake police headquarters – he didn’t report any threats. Mr. Curley lied – the threats didn’t happen. He said that Mr. Curley lied about his involvement with the burglary.

He said that Mr. Wright never testified about threats on Mr.. Turnbulls Speaker phone – only on his own phone – Mr. Curley lied, and Mr. Wright lied.

He said that Dr. Kinnison testified that for Det. Shivers to have been wounded as he was, his arm had to be parallel and downward.

He said that Professor Cooke testified that marijuana users aren’t violent; they’re laid back and mellow.<

He discussed Mr. Frederick’s neighborhood – how close together the houses are, and the neighbors – some know Mr. Frederick, some don’t. None of the neighbors, including the one who was outside, heard the police yell anything.

He spoke about Mr. Frederick stating that he heard a sound like a shotgun (when the battering ram hit his door) and how Mr. Willett had accused him of lying, because he hadn’t said that when he was arrested. Then he pointed out that Mr. Wicks, who lives across the street, described a sound “like a shotgun” across the street at Mr. Fredericks house, because the battering ram sounded like a shotgun. Mr. Wick said it was the first sound he heard.

He said that Mr. Frederick’s neighbors had no axe to grind with the CPD, or anyone else.

The Sheriffs department people, Lt Everton, and Deputies Cella and Krasner all testified that in March there was a problem with other inmates hanging around Mr. Frederick’s cell, and harassing him, and that Lt Everton had directed all the deputies to keep inmates away from Mr. Frederick. Mr. Frederick wrote to Internal Affairs of the Sheriff’s department, and Det. Thomas from the CPD interviewed Mr. Frederick.

He spoke of the interview tape – would he have acted that way if it was pre-meditated – hands shaking so badly, he could barely draw a diagram or write a statement. Saw him curled up on the floor. Heard him say “tell the officer’s wife I’m sorry.” Heard him say “Somebody was coming thru my door to kill me.” How can you shoot blindly thru a door?

His testimony was consistent with what he told police when he was arrested.

He asked the jury again to use their common sense when considering the evidence. He reminded the jury that they may consider the character of the defendant – no criminal record, went to work every day, was engaged to be married, liked and respected by all that knew him and worked with him. Does that type of character resemble who the prosecution describes?

The evidence shows that he had 12 grams of marijuana – would he plan to kill a police officer over that? Use common sense. The case as described by the prosecution makes no sense. If you know police are coming, you’ll get a U-Haul and haul your stuff away – not put stuff in an attic and leave marijuana laying out in the open.<

The picture of the couch, baggie, loose shake, shredder and bong were laid out to look like he had been smoking when the cops showed up. Common sense. Mr. Frederick wouldn’t have ruined the life he had over 12 grams of marijuana.

The expert, Det. Meinhart missed an obvious clue (a piece of marijuana plant inside a tub) – it wasn’t discovered until August – but he’s an expert. He couldn’t answer specific questions about cultivation, but he’s an expert.

The prosecution showed pictures of large grow operations (from books and magazines in Mr. Fredericks house) to give the impression that they were Mr. Frederick’s. 2 separate units for hydroponics growing constitute a “sophisticated” operation, according to the “expert” Det. Meinhart.

Facts beyond change – no record, gainfully employed, no equipment hooked up, no seeds, no baggies, no scales, no plants.

He fired one shot thru the hole the police broke in his door. No shots thru the body of the door. Curtain drawn in the window in the top of the door. Battering ram sound of a shotgun.

Det. Roberts spoke of not being able to get out of the car, of how traumatic it all was. Sometimes people can talk themselves into believing that things happened differently.

No detective testified about the pry bar.

It was stated by Det. Roberts that the re-enactment was for a ball-park idea of the raid – it wasn’t meant to be exact. If this is true, then why exactly the same people (except Det. Shivers) exactly the same clothes, the same weapons, the same positions, etc?

Why did they need to practice to get it right – even though it wasn’t supposed to matter, it was just ball-park. Did they get together and amongst them figure what happened? (What was supposed to happen?). What about the string, (from the picture taken at the re-enactment). Grover Davis testifying that “we moved them around until we got the string where we wanted it.” They’re trying to get it together.

Det Winkelspecht testified that there was no immediate rush to get into the house, that’s why it was a “Knock and Announce.” He said that his mind was on other things; his assignment was to cover a window. Everyone had their own job.

The re-enactment was to get everyone on the same page, so that everyone’s testimony was the same. When Davis was inside the house, trying to position the string, he said he was having difficulty seeing (the officer portraying) Det. Shivers.

Mr. Frederick said that he saw an arm coming thru the door – best evidence that he’s telling the truth. He retreated back into his bedroom – his gun jammed and he tried to clear it – it went off, because he was panicked. Does that sound like someone who planned to shoot the police? Or is it evidence of fear? He was so shook up that he told the police that he left the gun in his bedroom, when he had actually dropped it in the living room.

Officer McGanty said he saw a human silhouette thru a Navy Blue Curtain – he called out twice, and no one heard him. The prosecution used a picture of a white curtain in another room, and tried to pass it off as that window.

The standard is beyond a reasonable doubt – that is the greatest burden of proof – suspicion or probability is no enough to satisfy that burden of proof. Circumstantial evidence must be proof of guilt – no suspicion or probability.

Self Defense must be a reasonable fear of death or serious bodily injury, and must always be determined from the viewpoint of the defendant. The prosecution does not have to prove motive.

Finally – Why would he do what he did, unless he feared for his life?

Court recessed at 5:33 and reconvened for Mr. Ebert’s rebuttal at 5:46.

Part four – Mr. Ebert’s Rebuttal…

Jury was brought in at 5:47

Mr. Ebert opened by thanking the jury. He reminded them to use Common Sense. He said that Mr. Broccoletti said that the police did nothing wrong – then he said they did. He said that police officers are trained observers, and that their primary purpose is to stem the flow of drugs. He said that if they hadn’t used restraint, Mr. Frederick would be dead.

He said that Det. Thomas was doing his job when he went to the jail to investigate the threats to Mr. Frederick by other inmates.

He said that Steven Wright is a pothead, just like Mr. Frederick, and the others involved in the burglary. He said that Xanax has an accelerating effect on marijuana. He said that Mr. Frederick had a grow operation for a year, admitted to only 3 plants, and common sense tells you that these aren’t the only plants he grew.

He said that Mr. Wright told Roberts about the burglary, and also told him about being threatened. He also said that Mr. Frederick is as much of an expert (about marijuana) as Det. Meinhart. Meinhart says 1 plant produces 1 pound of salable marijuana. 1 pound is 16 ounces, and at $400.00 per ounce is $6400.00 times 10 plants is $64000.00.

He said that the police didn’t arrest him outside, because they wanted to connect him with the crime. He said that Mr. Frederick claimed that he had an uneasy feeling, and that’s why he got rid of the 3 plants. He said that common sense will tell you that people don’t grow marijuana for their own use.

He said that Mr. Frederick didn’t call police to report the burglary, but he did call Mr. Curley’s phone and threaten them. He said he lied to Mrs. McReynolds about the keychain belonging to Mr. Wright. As far as the phone records, we don’t know what other phones he used.

He said with jailhouse people, credibility is an issue – he’s been in this business a long time. He said that the jail informants knew things that no one else knew, like hollow point ammo was used. He said that during his testimony, is the first time he admitted he grew marijuana, and the first time he spoke of an arm reaching thru the door. He said that Det. Shivers death was unnecessary, and that Mr. Broccoletti has done an excellent job.

He said that anybody who is committing a crime knows that the police will eventually show up with a search warrant. He also said that police don’t have to knock. He said if Mr. Frederick wasn’t suspicious about police coming, why did he get his gun?

He said that he was responsible for the re-enactment – that he made a mistake, and was visible to the camera. The purpose of the string was to determine where Mr. Frederick was standing. He said that Mr. Frederick peeked around the corner and shot. He didn’t mention the helmet, but he saw a face, saw an arm come in. Dr. Kinnison said that Det. Shivers arm couldn’t have been extended.

He said that the pry bar was dropped when the second shot was fired. He also said “If you think the police officers were lying, acquit him!” He said that the second shot went thru the wall, because Mr. Frederick ran back down the hall, then turned and fired, in case anyone had gotten into the house.

He mentioned that all the bullets had been ejected multiple times. He said that Mr. Frederick put the gun down, and tried to find the phone to call 911 – he was in the house for 5 or 6 minutes before he came out – he was sitting in there, figuring out what he was going to say.

He said “I think you’ve heard enough – what it boils down to is who you believe. Something that traumatic will stay with those men forever.”

Finally, he told the jury “You are the voice of the community – the judges – the evidence and the law indicate that this man is guilty.”

Court recessed at 6:25, and will reconvene at 9:00 a.m., 3 February, 2009.

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