6/24/2015 Minute Order (print) Event ID: E-Filed: N JURY TRIAL - DAY 91 JUNE 24, 2015

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1 REDACTED 6/24/2015 Minute Order (print) Event ID: E-Filed: N JURY TRIAL - DAY 91 JUNE 24, 2015 REPORTER: FIKANY ALL DAY DEFENDANT APPEARS IN CUSTODY WITH HIS ATTORNEYS KATHERINE SPENGLER AND KRISTEN NELSON. THE PEOPLE ARE REPRESENTED BY JACOB EDSON, KAREN PEARSON, RICH ORMAN, DEFENSE COUNSEL CONFIRMS THAT THEY WAIVED THE DEFENDANT'S APPEARANCE FOR A WITNESS SUBPOENA RETURN HEARING ON JUNE 22, 2015 IN DIVISION 207. THE COURT GIVES THE DEFENDANT A CURTIS ADVISEMENT. THE DEFENDANT UNDERSTANDS THE ADVISEMENT, HIS RIGHT TO TESTIFY (AND THE CONSEQUENCES OF TESTIFYING), AND HIS RIGHT TO NOT TESTIFY. THE DEFENDANT HAS NO QUESTIONS ABOUT THE ADVISEMENT. THE COURT WILL GIVE THE DEFENDANT TIME TO CONSIDER WHETHER HE WISHES TO TESTIFY. AT THE COURT'S REQUEST, MR. EDSON HAS REVIEWED C-TR-73 TO ENSURE THAT IT IS COMPLETE AND ACCURATE. MR. EDSON INFORMS THE COURT THAT THERE IS AN THAT SHOULD HAVE BEEN INCLUDED IN THE EXHIBIT THAT WAS NOT. WITHOUT OBJECTION, MR. EDSON TENDERS THE OMITTED TO THE COURT'S STAFF SO THAT IT CAN BE INCLUDED IN C-TR-73. THE COURT DISTRIBUTES A DRAFT OF ITS PROPOSED GUILT PHASE INSTRUCTIONS TO THE PARTIES. A COPY OF THE COURT'S DRAFT INSTRUCTIONS WILL ALSO BE MADE PART OF THE RECORD. THE COURT HEARS ARGUMENT FROM THE PARTIES REGARDING THE COURT'S PROPOSED INSTRUCTIONS AND THE PARTIES TENDERED INSTRUCTIONS. THE COURT WILL HOLD ANOTHER JURY INSTRUCTION CONFERENCE LATER IN THE TRIAL. 6/25/2015 Minute Order (print) Event ID: E-Filed: N JURY TRIAL - DAY 92 JUNE 25, 2015 REPORTER: MARTIN ALL DAY THE DEFENSE SEEKS CLARIFICATION FROM THE COURT REGARDING WHAT QUESTIONS THE DEFENSE MAY ASK DR. WOODCOCK REGARDING THE COMPETENCY EVALUATION HE PERFORMED ON THE DEFENDANT IN JULY OF 2012 WITHOUT VIOLATING ORDER D-185. THE COURT PROVIDES THE REQUESTED CLARIFICATION. THE DEFENSE WILL BE ATTEMPTING TO ADMIT THREE JAIL VIDEOS THROUGH WITNESSES WHO WILL TESTIFY TODAY AND TOMORROW. PORTIONS OF THESE VIDEOS WERE PLAYED DURING THE DEFENSE'S OPENING STATEMENT. THE DEFENSE HAS NOT PROVIDED COPIES OF THE VIDEOS TO THE PROSECUTION. THE COURT INSTRUCTS THE DEFENSE TO PROVIDE A COPY OF EACH VIDEO TO THE PEOPLE SO THE PEOPLE CAN REVIEW THEM FOR ACCURACY. WITNESSES TESTIFY AND THE FOLLOWING EXHIBITS ARE ADMITTED: D-TR-67, D-TR-68, P-TR-4892, P-TR-4893, P-TR-4894, P-TR-4895, P-TR-4896, P-TR-4897, P-TR-4898, P-TR-4899, P-TR-4900, P-TR-4901, P-TR-4902, P-TR-4903, P-TR-4904, P-TR-4905, P-TR-4906, P-TR-4907, P-TR-4908, P-TR-4909, P-TR-4910, AND P-TR BASED ON A BENCH CONFERENCE, THE COURT RULES THAT THE DEFENSE HAS OPENED THE DOOR TO EVIDENCE OF TWO TRAFFIC TICKETS RECEIVED BY THE DEFENDANT IN LATE 2011 AND IN THE FIRST HALF OF ACCORDINGLY, THE PEOPLE MAY PRESENT EVIDENCE OF THE JULY 10, 2012 PHOTO RADAR TICKET THAT THE COURT EXCLUDED IN ORDER D-73-B, AS WELL AS EVIDENCE OF REFERENCES IN AN EXCHANGE BETWEEN THE DEFENDANT AND HIS MOTHER TO A SPEEDING TICKET HE RECEIVED IN LATE THE LATTER INFORMATION WAS REDACTED FROM P-TR-1227 BEFORE THAT EXHIBIT WAS ADMITTED. THE PROSECUTION MAY ALSO CROSS-EXAMINE DR.WOODCOCK ABOUT BOTH

2 INCIDENTS. THE PEOPLE MAKE A RECORD THAT THE DEFENSE HAS NOT COMPLIED WITH ORDER P-43 REGARDING EXPERT WITNESS LARRY DANIEL, WHO WILL TESTIFY FOR THE DEFENSE TOMORROW. THE PEOPLE HAVE RECEIVED A ONE-PAGE MEMORANDUM FROM THE WITNESS, WHICH IS LABELED AS C-TR-76. THE PEOPLE ASK THE COURT TO PRECLUDE THE DEFENSE FROM PRESENTING ANY EXPERT TESTIMONY THROUGH THIS WITNESS. THE COURT FINDS THAT THE DEFENSE'S DISCLOSURE WITH RESPECT TO THIS WITNESS FAILS TO SATISFY ORDER P-43. THE COURT INFORMS THE DEFENSE THAT, IF IT SEEKS TO CALL THIS WITNESS AS AN EXPERT, IT MUST COMPLY WITH ORDER P-43. THE DEFENSE MAY CALL THE WITNESS AS A LAY WITNESS, BUT IT RUNS THE RISK THAT THE COURT WILL FIND THAT HIS TESTIMONY IS EXPERT TESTIMONY, IN WHICH CASE THE COURT WOULD EITHER EXCLUDE THE TESTIMONY OR DELAY IT UNTIL THE DEFENSE COMPLIES WITH ORDER P-43. AT THIS TIME, THE COURT CANNOT DETERMINE IF THIS IS EXPERT OR LAY TESTIMONY BECAUSE THE DEFENSE IS NOT PROVIDING MUCH DETAIL ABOUT THE INFORMATION IT INTENDS TO ELICIT FROM THIS WITNESS. 6/26/2015 Order Event ID: E-Filed: N THE COURT ENTERS ORDER SUPPLEMENTING ORDER C-200 (C-200-A). COPIES SENT VIA TO KAREN PEARSON, RICH ORMAN, JACOB EDSON, LISA TEESCH-MAGUIRE, GEORGE BRAUCHLER, SHERILYN KOSLOSKY, RHONDA CRANDALL, DANIEL KING, TAMARA BRADY, KRISTEN NELSON, AND CHRISTINA TAYLOR, /AG 6/26/2015 Minute Order (print) Event ID: E-Filed: N JURY TRIAL - DAY 93 JUNE 26, 2015 REPORTER: TROYANEK ALL DAY MORNING SESSION: THE COURT ADDRESSES SCHEDULING. THE DEFENSE BELIEVES IT WILL FINISH ITS EVIDENCE ON JULY 7 OR 8 AND THE PEOPLE ANTICIPATE HAVING ABOUT ONE DAY OF REBUTTAL EVIDENCE. BASED ON THOSE REPRESENTATIONS, THE COURT WILL PLAN ON CLOSING ARGUMENTS TAKING PLACE ON JULY 13. THE PARTIES WILL HAVE TWO HOURS EACH FOR CLOSING ARGUMENTS. THE DEFENSE ASKS THE COURT FOR GUIDANCE ON WHEN THE COURT EXPECTS A SENTENCING HEARING TO BEGIN, IF A SENTENCING HEARING IS NEEDED. THE COURT WOULD PREFER TO START A SENTENCING HEARING ON JULY 16. HOWEVER, THE COURT MAY NEED TO TAKE JULY 17 OFF TO ACCOMMODATE AT LEAST ONE JUROR. IF THAT IS THE CASE, THE SENTENCING HEARING WOULD START ON JULY 20. THE COURT WILL INQUIRE OF THE JURORS WHETHER THEY ARE AVAILABLE ON JULY 17. THE DEFENSE ASKS THE COURT TO LET IT GIVE AN OPENING STATEMENT AT THE BEGINNING OF A SENTENCING HEARING AND/OR AT THE BEGINNING OF EACH PHASE OF A SENTENCING HEARING, ASSUMING SUCH A HEARING IS HELD. THE PEOPLE OBJECT TO THE DEFENDANT S REQUEST. THE COURT WILL TAKE THE MATTER UNDER ADVISEMENT. THE PEOPLE ASK THE COURT FOR A THREE-HOUR DELAY FROM THE TIME ANY VERDICT IS REACHED UNTIL IT IS READ SO THAT THE VICTIMS CAN BE PRESENT. THE COURT HAS ALREADY CONSIDERED THAT ISSUE AND WILL MAKE SURE THAT ANY INTERESTED PERSONS HAVE ENOUGH TIME TO TRAVEL TO COURT BEFORE ANY VERDICT IS READ. THE PROSECUTION RESUMES ITS CROSS-EXAMINATION OF DR. WOODCOCK.

3 AFTERNOON SESSION: THE COURT HAS RECEIVED A NOTE FROM JUROR 17 INDICATING THAT SHE IS NOT AVAILABLE ON JULY 17. THE NOTE IS MARKED AS COURT EXHIBIT C-TR-77. WITHOUT OBJECTION, THE COURT WILL INFORM THE JURY THAT IT WILL CONTINUE TO PLAN ON TAKING JULY 17 OFF. GIVEN THAT, IF A SENTENCING HEARING IS REQUIRED, IT WILL BEGIN ON JULY 20. THE COURT WILL PLAN TO WORK WITH THE ATTORNEYS ON JULY 16 AND/OR 17 ON THE INSTRUCTIONS TO BE GIVEN THE JURY IN THE EVENT THERE IS A SENTENCING HEARING. AT THE REQUEST OF THE DEFENSE, JUROR 118 IS BROUGHT INTO THE COURTROOM SO THE COURT CAN INQUIRE WHETHER SHE IS HAVING TROUBLE STAYING AWAKE TODAY AND WHETHER SHE HAS FALLEN ASLEEP AT ANY POINT DURING TRIAL. THE JUROR INDICATES THAT SHE HAS NOT BEEN SLEEPING TODAY OR AT ANY OTHER POINT DURING TRIAL. SHE HAS HAD HER EYES DOWN AT TIMES TODAY BECAUSE THE VENTILATION SYSTEM IS BLOWING AIR IN HER EYES. BASED ON THE RECORD MADE, NO ACTION IS REQUESTED OR TAKEN WITH RESPECT TO JUROR 118. WITNESSES ARE CALLED TO TESTIFY AND EXHIBIT D-TR-70 IS ADMITTED. 6/29/2015 Notice Filed Event ID: E-Filed: N THE COURT ENTERS NOTICE OF LABELING AS "C-209" COURT'S DRAFT JURY INSTRUCTIONS. COPIES SENT VIA TO KAREN PEARSON, RICH ORMAN, JACOB EDSON, LISA TEESCH-MAGUIRE, GEORGE BRAUCHLER, SHERILYN KOSLOSKY, RHONDA CRANDALL, DANIEL KING, TAMARA BRADY, KRISTEN NELSON, AND CHRISTINA TAYLOR. 6/29/2015 Minute Order (print) Event ID: E-Filed: N JURY TRIAL - DAY 94 JUNE 29, 2015 REPORTER: AMATO ALL DAY MORNING SESSION: THE COURT HAS COMPLETED ITS DRAFT OF THE GUILT PHASE JURY INSTRUCTIONS AND WILL DISTRIBUTE THEM TO COUNSEL LATER IN THE WEEK. (THE DRAFT SHARED WITH COUNSEL LAST WEEK WAS NOT COMPLETE). AFTER THE PARTIES HAVE HAD A CHANCE TO REVIEW THE INSTRUCTIONS, THE COURT WILL SCHEDULE ANOTHER JURY INSTRUCTION CONFERENCE FOR NEXT WEEK. THE COURT ASKS THE PARTIES IF THERE IS AN OBJECTION TO THE COURT PROVIDING THE JURY AN INSTRUCTION THAT DR. INDOVINA'S TESTIMONY IS LIMITED TO THE ISSUES RAISED BY THE DEFENDANT S NOT GUILTY BY REASON OF INSANITY PLEA. BECAUSE NEITHER PARTY OBJECTS, THE COURT WILL GIVE THE INSTRUCTION. THE PEOPLE MOVE TO EXCLUDE THE EXPERT TESTIMONY OF DR. RACHEL DAVIS, WHO WILL BE CALLED LATER TODAY BY THE DEFENSE. THE PEOPLE ARGUE THAT THE DEFENSE DID NOT ENDORSE HER AS AN EXPERT WITNESS. THE DEFENSE EXPLAINS THAT THIS WITNESS WAS NOT ENDORSED AS AN EXPERT BECAUSE OF A TYPOGRAPHICAL ERROR. BASED ON THE RECORD BEFORE IT, THE COURT WILL ALLOW DR. DAVIS TO TESTIFY AS AN EXPERT. THE PEOPLE OBJECT TO A VIDEOTAPED INTERVIEW OF THE DEFENDANT BY INVESTIGATOR GONGLACH WHILE THE DEFENDANT WAS HOSPITALIZED AT DENVER HEALTH. A COPY OF THE VIDEO IS GIVEN TO THE COURT FOR ITS REVIEW. WITNESSES TESTIFY AND THE FOLLOWING EXHIBITS ARE ADMITTED: D-TR-71, D-TR-72, D-TR-73, D-TR-74, D-TR-75, D-TR-76, D-TR-77, D-TR-78, AND D-TR-79.

4 AFTERNOON SESSION: IN LIGHT OF THE RECORD MADE BY THE PEOPLE REGARDING DR. DAVIS, THE DEFENSE HAS REVIEWED ENDORSEMENT D-261 AGAIN. THE DEFENSE INFORMS THE COURT THAT DUE TO A TYPOGRAPHICAL ERROR, DR. B. THOMAS GRAY AND MARGARET ROATH WERE ALSO NOT ENDORSED AS EXPERT WITNESSES. THE DEFENSE WILL NOT BE ASKING MS. ROATH TO OFFER EXPERT OPINIONS, BUT WILL BE ASKING TO QUALIFY DR. GRAY AS AN EXPERT. THE PEOPLE ASK THAT, IF DR. GRAY TESTIFIES, THE PEOPLE BE PERMITTED TO GET INTO THE RAW DATA OF THE MMPI AND PAI TESTS ADMINISTERED BY DR. GRAY. THE DEFENSE DOES NOT OBJECT. HOWEVER, THE DEFENSE INFORMS THE COURT THAT CMHIP (THROUGH THE AG'S OFFICE) WILL LIKELY OBJECT BECAUSE SOME OF THE TESTING MATERIALS CONTAIN COPYRIGHTED MATERIAL AND TRADE SECRETS. THE COURT INSTRUCTS THE PEOPLE TO CONTACT THE ATTORNEY GENERAL'S OFFICE ABOUT THIS ISSUE. IF THE PEOPLE CANNOT RESOLVE THE ISSUE WITH THE ATTORNEY GENERAL'S OFFICE, THE COURT WILL HOLD A SHORT HEARING REGARDING THE MATTER LATER IN THE WEEK. THE COURT ASKS THE PARTIES WHETHER THEY WANT THE LIMITING INSTRUCTION REGARDING ISSUES RAISED BY THE NGRI PLEA TO BE GIVEN WITH RESPECT TO ALL OF THE DEFENSE WITNESSES. THE PEOPLE TAKE NO POSITION ON THIS ISSUE. THE DEFENSE WILL RESPOND TOMORROW. WITNESSES TESTIFY AND THE FOLLOWING EXHIBITS ARE ADMITTED: D-TR-69. THE PEOPLE OBJECT TO ANTICIPATED TESTIMONY BY LAY WITNESS TARA FOURNIER THAT SHE THOUGHT THE DEFENDANT MIGHT BE AUTISTIC, ASSERTING THAT SUCH TESTIMONY IS IMPROPER EXPERT OPINION TESTIMONY. THE PEOPLE ALSO ASSERT MS. FOURNIER'S TESTIMONY IS CUMULATIVE OF TESTIMONY BY OTHER WITNESSES WHO WORKED WITH THE DEFENDANT AT MERICAL. THE PEOPLE'S CUMULATIVE OBJECTION IS OVERRULED. HOWEVER, THE COURT AGREES THAT THE WITNESS CANNOT GIVE EXPERT OPINIONS. THE WITNESS CAN TESTIFY ABOUT HER OBSERVATIONS OF THE DEFENDANT AND ABOUT THE FACT THAT SHE THOUGHT THE DEFENDANT WAS NOT SIMPLY SHY OR AN INTROVERT (BUT THAT THERE WAS SOMETHING ELSE GOING ON WITH HIM). HOWEVER, MS. FOURNIER CANNOT TESTIFY THAT SHE BELIEVED THE DEFENDANT MIGHT BE AUTISTIC BECAUSE HIS BEHAVIORS WERE CONSISTENT WITH SYMPTOMS OF AUTISM SHE HAD OBSERVED IN HER CHILDREN. 6/30/2015 Minute Order (print) Event ID: E-Filed: N JURY TRIAL - DAY 95 JUNE 30, 2015 REPORTER: AMATO ALL DAY THE COURT MAKES AN ADDITIONAL RECORD REGARDING TWO HEARSAY OBJECTIONS MADE BY THE PEOPLE AT THE BENCH YESTERDAY AFTERNOON. THE COURT FINDS BOTH OF THE STATEMENTS IN QUESTION (WHICH WERE MADE BY THE DEFENDANT) FALL WITHIN THE STATE OF MIND EXCEPTION TO THE HEARSAY RULE. ACCORDINGLY, THE COURT REVERSES THE RULINGS IT MADE YESTERDAY SUSTAINING THE PEOPLE'S OBJECTIONS TO THOSE STATEMENTS. THE DEFENSE RESPONDS TO THE PEOPLE'S HEARSAY OBJECTION TO A VIDEOTAPED INTERVIEW OF THE DEFENDANT BY INVESTIGATOR GONGLACH AT DENVER HEALTH MEDICAL CENTER IN NOVEMBER THE COURT HAS REVIEWED THE VIDEO AND FINDS THAT AT LEAST SOME OF THE STATEMENTS IN THE VIDEO ARE BEING OFFERED FOR THE TRUTH OF THE MATTER ASSERTED AND DO NOT FALL WITHIN A HEARSAY EXCEPTION. ACCORDINGLY, THE PEOPLE'S HEARSAY OBJECTION TO THE VIDEO IS SUSTAINED. THE DEFENSE MAY SEEK TO ADMIT THE VIDEO UNDER RULE 703 IF IT CAN LAY THE NECESSARY FOUNDATION. THE DEFENSE MAY ALSO SEEK TO INTRODUCE A REDACTED VERSION OF THE VIDEO THAT EXCLUDES

5 ANY HEARSAY STATEMENTS. A DISC CONTAINING A SUBTITLED VERSION OF THE VIDEOTAPED INTERVIEW IS MARKED AS COURT EXHIBIT C-TR-78. A DISC CONTAINING THE VIDEOTAPED INTERVIEW WITHOUT SUBTITLES IS MARKED C-TR-79. A TRANSCRIPT OF THE VIDEOTAPED INTERVIEW IS MARKED C-TR-80. THE PEOPLE HAVE REACHED OUT TO THE ATTORNEY GENERAL'S OFFICE TO SEE IF THEY CAN REACH AN AGREEMENT THAT WOULD ALLOW THE PROSECUTION TO QUESTION DR. B. THOMAS GRAY ABOUT COPYRIGHTED TESTING MATERIALS ADMINISTERED TO THE DEFENDANT AT CMHIP. THE PEOPLE CONFIRM THAT THEY ARE INTENDING TO ASK DR. GRAY ABOUT THE DEFENDANT'S ANSWERS TO SPECIFIC QUESTIONS IN THE TESTING MATERIALS. THE DEFENSE ASSERTS THAT THIS TYPE OF QUESTIONING WOULD INFRINGE ON THE TEST DEVELOPERS' COPYRIGHT AND TRADE SECRETS; FURTHER, THE DEFENSE ASSERTS THAT, IF THE PEOPLE ARE ALLOWED TO EXAMINE DR. GRAY ABOUT SPECIFIC QUESTIONS AND ANSWERS IN THE TESTING MATERIALS, THE DEFENSE WILL BE FORCED TO INTRODUCE THE TESTING MATERIALS IN THEIR ENTIRETY, WHICH WOULD BE PROBLEMATIC. THE MATTER IS TABLED SO THAT THE PARTIES AND THE ATTORNEY GENERAL'S OFFICE CAN TRY TO RESOLVE THIS ISSUE. THE DEFENSE ADDRESSES THE COURT'S REQUEST FOR CLARIFICATION ABOUT WHEN IT SHOULD PROVIDE THE LIMITING INSTRUCTION RELATED TO ISSUES RAISED BY THE DEFENDANT'S PLEA OF NOT GUILTY BY REASON OF INSANITY. THE COURT INSTRUCTS THE PARTIES THAT IT WILL NOT GIVE THE INSTRUCTION AGAIN UNLESS A PARTY REQUESTS IT. THE DEFENSE HAS ALSO REVIEWED THE INSTRUCTION PREPARED BY THE COURT AT THE DEFENSE'S REQUEST REGARDING A JUROR'S ABILITY TO RELY ON THEIR BACKGROUND, EDUCATION, AND EXPERIENCE, BUT NOT ON FACTS FROM OUTSIDE SOURCES, DURING DELIBERATIONS. THE DEFENSE MAKES SUGGESTED EDITS TO THE COURT'S PROPOSED INSTRUCTION. THE PEOPLE RESPOND. THE COURT MAKES ONE OF THE EDITS REQUESTED BY THE DEFENSE. IN TERMS OF THE OTHER EDIT REQUESTED BY THE DEFENSE, THE DEFENSE EVENTUALLY LEAVES IT TO THE COURT'S DISCRETION. AFTER ALLOWING BOTH SIDES TO BE HEARD ON THIS REQUESTED EDIT, THE COURT DECIDES NOT TO ADOPT IT. AT THE REQUEST OF THE DEFENSE AND WITHOUT OBJECTION, THE COURT READS THE INSTRUCTION TO THE JURY. WITNESSES TESTIFY AND THE FOLLOWING EXHIBITS ARE ADMITTED: D-TR-80, D-TR-81, D-TR-82, D-TR-83, D-TR-84, D-TR-85, D-TR-86, D-TR-87, AND D-TR-88. End of Case: 2012 CR