8/31/2012 2:59 PM FILED IN OFFICE LYDIA GARDNER CLERK OF CIRCUIT COURT ORANGE CO FL
`
`IN THE CIRCUIT COURT, OF THE
`NINTH JUDICIAL CIRCUIT,
`IN AND
`FOR ORANGE COUNTY, FLORIDA
`CRIMINAL JUSTICE DIVISION
`
`CASE NO.:
`
`48-2011-CF-005398-A-O
`
`DIVISION NO.: 11
`
`VOLUME VI OF VI
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`STATE OF FLORIDA,
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`PLAINTIFF,
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`VS.
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`WAYNE EDWARD SPENCER,
`
`DEFENDANT./
`
`APPEARING ON BEHALF OF THE DEFENDANT
`
`PETER SCHMER, ESQUIRE
`ASSISTANT PUBLIC DEFENDER
`435 NORTH ORANGE AVENUE
`
`z; WGINAL
`
`JURY TRIAL
`
`BEFORE
`
`THE HONORABLE HEATHER PINDER RODRIGUEZ
`
`APRIL 20, 2012
`ORANGE COUNTY COURTHOUSE
`
`ORLANDO, FLORIDA 32801
`CATHY L. MATTA, RPR
`
`A P P E A R A N C E S:
`
`FRANK GEORGE, ESQUIRE AND
`DALIA ABDELBARY, ESQUIRE
`ASSISTANT STATE ATTORNEYS
`
`415 NORTH ORANGE AVENUE
`SUITE 400
`
`ORLANDO, FLORIDA 32801
`APPEARING ON BEHALF OF THE PLAINTIFF
`
`ORLANDO, FLORIDA 32801
`
`
`
`IN THE CIRCUIT COURT, OF THE
`NINTH JUDICIAL CIRCUIT,
`IN AND
`FOR ORANGE COUNTY, FLORIDA
`CRIMINAL JUSTICE DIVISION
`
`CASE NO.:
`
`48-2011-CF-005398-A-O
`
`DIVISION NO.: 11
`
`VOLUME VI OF VI
`
`STATE OF FLORIDA,
`
`PLAINTIFF,
`
`VS.
`
`WAYNE EDWARD SPENCER,
`
`DEFENDANT./
`
`APPEARING ON BEHALF OF THE DEFENDANT
`
`PETER SCHMER, ESQUIRE
`ASSISTANT PUBLIC DEFENDER
`435 NORTH ORANGE AVENUE
`
`z; WGINAL
`
`JURY TRIAL
`
`BEFORE
`
`THE HONORABLE HEATHER PINDER RODRIGUEZ
`
`APRIL 20, 2012
`ORANGE COUNTY COURTHOUSE
`
`ORLANDO, FLORIDA 32801
`CATHY L. MATTA, RPR
`
`A P P E A R A N C E S:
`
`FRANK GEORGE, ESQUIRE AND
`DALIA ABDELBARY, ESQUIRE
`ASSISTANT STATE ATTORNEYS
`
`415 NORTH ORANGE AVENUE
`SUITE 400
`
`ORLANDO, FLORIDA 32801
`APPEARING ON BEHALF OF THE PLAINTIFF
`
`ORLANDO, FLORIDA 32801
`
`
`
`
`8/31/2012 2:59 PM FILED IN OFFICE LYDIA GARDNER CLERK OF CIRCUIT COURT ORANGE CO FL
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`537
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`Volume VI Index
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`Motion for Judgment of Acquittal
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`State' Closing Argument
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`Defendant's Closing Argument
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`State's Rebuttal Argument
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`Charge Conference
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`Charge of the
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`Court
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`Jury Question
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`Verdict
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`8/31/2012 2:59 PM FILED IN OFFICE LYDIA GARDNER CLERK OF CIRCUIT COURT ORANGE CO FL
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`538
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`April 20, 2012 (1:21 p.m.)
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`The Court: All right. State, are you —— you want
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`me to call it on the record?
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`The Court Reporter: No,
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`that's okay, Judge.
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`The Court: You're good? All right.
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`State, you want to go ahead with the remainder of
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`your response to the JOA motion?
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`Mr. George:
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`Sure, Judge. Good afternoon.
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`Frank
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`George on half of the State. Your Honor, after the ——
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`or during the lunch hour, Mr. Schmer and I had a chance
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`to talk.
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`I had a Chance to go back to my office and
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`look at his case law, as well as pulling some of my own.
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`And though I believe an argument can be made for leaving
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`in the felony murder instruction, for appellate reasons,
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`I'm not going to object to the felony murder being
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`struck.
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`So we'll go forward strictly on the
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`premeditated first degree murder.
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`So that should take
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`out a chunk of the argument.
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`The Court: Okay.
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`Mr. George: As it relates to the JOA argument of
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`murder in the first degree, certainly, Your Honor,
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`taking the evidence in the light most favorable to the
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`State,
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`the State has proven all three acts that it needs
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`to prove to the jury. Certainly the State has presented
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`evidence that the finder of fact could find the
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`defendant guilty as charged.
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`Certainly the victim is dead.
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`I'm sorry, Richy
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`rich is dead.
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`The death was caused by the criminal act
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`of Mr. Spencer, and there was a premeditated killing.
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`As to the third element, certainly the jury can
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`find four strikes to the man's head after the first
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`strike,
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`the jury could easily find that Mr. Spencer did
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`exactly what he set out to do,
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`that he had the conscious
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`intent to end the life of Richy Rich, either consecutive
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`blows or as we heard on the tape,
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`that after Mr. Spencer
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`left, he came back. Mr. Rich said some words to him;
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`and because of those words, Mr. Spencer finished him
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`off.
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`So, certainly, Your Honor, enough evidence has
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`been presented to this jury that a finder of fact can
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`make the ultimate conclusion.
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`I ask that you deny the
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`motion.
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`Mr. Schmer:
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`I would also make the additional
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`argument, which I didn't make on my first part of my JOA
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`argument as to the identity of the decedent.
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`The
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`indictment lists Richy Rich, AKA —~ I'm sorry Raymond
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`Lynch, AKA, Richy Rich as the decedent.
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`I would argue
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`that there's not been competent evidence presented to
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`establish identity of the deceased. Obviously,
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`I
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`objected when Detective Newton testified that the
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`deceased was,
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`in fact, Richy Rich based on a DAVID
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`8/31/2012 2:59 PM FILED IN OFFICE LYDIA GARDNER CLERK OF CIRCUIT COURT ORANGE CO FL
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`540
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`photo.
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`I objected.
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`I wanted to incorporate that into
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`my JOA argument.
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`The Court: State, what's your response to that
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`specific argument.
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`Mr. George:
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`Sure, Judge. Obviously, as Mr. Schmer
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`has stated,
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`the document came into evidence,
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`the DAVID
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`photograph,
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`identifying the man as Richy Rich.
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`Identification was made.
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`A visual identification was
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`made by Detective Newton on that picture comparing it to
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`the person at the morgue.
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`In addition, Your Honor,
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`there were Mr. Spencer's
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`own words in the course of his interview with the
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`police, referred to the person that he had struck as
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`Richy Rich and Richy.
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`So I believe that the identity
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`issue is really a nonissue at this point.
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`The Court: What about the names on the indictment?
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`Mr. George: Your Honor,
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`I believe there was
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`testimony during the course of the —— through Detective
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`Newton's first trip up to the witness stand.
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`He
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`mentioned the name of Raymond Lynch as part of his
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`investigation into determining the identity.
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`I believe the medical examiner in the very
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`beginning of her testimony —— I may be mistaken but I
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`believe she testified in the very beginning of her
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`testimony referring to this man by Raymond Lynch as
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`541
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`well.
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`If there's any cause for concern, we can certainly
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`strike the Raymond Lynch out but Richy Rich has
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`certainly been established.
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`Mr. Schmer: But for the fact that Mr.
`
`-— the
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`evidence of identity can't simply be introduced solely
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`through the testimony of the defendant.
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`It has to be
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`somebody —— evidence independent of his confession and
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`so I would argue that no competent
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`testimony exists.
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`Somebody who knew the decedent could testify that
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`this is the guy whose name is Raymond Lynch, otherwise
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`known as Richy Rich.
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`Joshua Kitchens knew him as
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`Mouthwash.
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`Detective Newton did not know who this guy was. My
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`argument was it was improper for the detective to make
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`the I.D. because it invades the province of the jury.
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`Again, also, Mr. Spencer never mentioned Richy Rich.
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`He
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`said one time Raymond —— I'm sorry, Reverend Rich or
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`Rich is what he referred to in the statement but never
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`said the word Richy Rich or Raymond Lynch.
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`The Court: All right. Court's going to deny the
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`motion for JOA at this time.
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`Mr. George:
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`Thank you, Judge.
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`I have asked my
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`secretary —— I'm sorry. Over the lunch hour, Mr. Schmer
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`and I had a very brief conversation about the jury
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`8/31/2012 2:59 PM FILED IN OFFICE LYDIA GARDNER CLERK OF CIRCUIT COURT ORANGE CO FL
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`instructions.
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`I'd asked my secretary to complete a
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`revised copy, which she said that she has sent to me and
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`to you.
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`The Court:
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`I've already been working on the
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`that you sent.
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`I don't want to duplicate efforts.
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`Mr. George:
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`It may be two minutes ago.
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`Some of
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`them are simply not necessary ——
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`The Court: Right.
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`Mr. George:
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`-— when it talks about dwellings and
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`things of that nature.
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`Mr. Schmer has asked for a justifiable use of
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`deadly force instruction.
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`He has also asked for
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`justifiable use of nondeadly force instruction.
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`I said
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`sure.
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`So I believe those instructions have also been
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`added to the e—mail that I believe you should have
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`received.
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`The Court: Well,
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`if she'll send it over I can
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`insert it into the document I have. Once you finish
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`closing arguments, we'll send the jury out make and sure
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`you guys are okay with the jury instructions.
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`I hate to
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`do that because it slows us down? But I don't see a way
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`around it, unless one of you do.
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`Mr. George: No,
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`that's fine, Judge.
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`The Court:
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`I can e-mail it to you guys so you can
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`look at it during closing argument, but I know you want
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`to give your full attention to what's being said in the
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`courtroom.
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`Mr. Schmer: That's fine.
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`The Court: Ma'am,
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`I'm so sorry.
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`I don't mean to
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`be difficult but in our courtroom we can't have food and
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`we can't have soda, only water because I can't afford
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`the carpet cleaning bills because of budget cuts.
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`So
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`your soda needs to go outside.
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`I'm so sorry.
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`All right. Let the record reflect the presence of
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`the defendant at counsel table.
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`He continues to be
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`dressed appropriately for court.
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`He has shackles at his
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`feet but does he have a privacy desk to the front and to
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`the sides. His hands are free and he's able to
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`communicate freely with his attorney.
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`Mr. Spencer, are you ready to go?
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`The Defendant: Yes, ma'am.
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`The Court: Okay.
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`Mr. Schmer: May I step outside to get water real
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`quickly?
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`The Court: Yes. As soon as Mr. Schmer comes back,
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`we'll bring in the jury.
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`The Court Deputy: Yes, ma'am.
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`The Court:
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`If you'll have your secretary ——
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`Mr. George, as soon as you get those instructions from
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`your secretary, would you please e—mail it to me and I
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`can cut and paste them into this.
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`Mr. George: Yes, Your Honor.
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`I'm sorry.
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`It was
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`my impression she had sent them to you. Let me check.
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`The Court: Let me double—check. Yes, you are
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`correct.
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`I'm very sorry.
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`You can see I wasn't reading
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`my inbox. We will remain seated for the jury.
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`(Whereupon, at 1:31 p.m.
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`the jury entered the courtroom,
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`after which the following transpiredz)
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`The Court: Welcome back, everyone.
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`The Jury:
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`Thank you.
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`The Court: Did you have a good lunch?
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`The Jury: Yes.
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`The Court: Okay. When we last left,
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`the State had
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`rested.
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`Defense.
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`Mr. Schmer:
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`The defense rests.
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`The Court: Okay. At this point, we will proceed
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`to closing arguments.
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`I'm going to read the standard
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`instructions for closing arguments before we commence.
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`Ladies and gentlemen of the jury, both the State
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`and the defendant have now rested their case.
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`The
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`attorneys will now present their final arguments.
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`,
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`Please remember what the attorneys say is not
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`evidence or your instruction on the law. However, do
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`listen carefully to their arguments.
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`They are intended
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`to aid you in understanding the case.
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`Each side will
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`have equal
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`time, but the State is entitled to divide
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`this time between an opening argument and a rebuttal
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`argument after the defense has spoken.
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`Each party will have the same amount of time for
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`their presentation.
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`The State will proceed first,
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`followed by the defense.
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`The State will then have the
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`argument to present any rebuttal or response to the
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`defense's argument.
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`With that, State, you may proceed.
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`Mr. George:
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`Thank you, Judge. Ladies and
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`gentlemen, good afternoon.
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`I know that there were a few
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`times that you were asked to leave our presence and for
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`whatever delays that occurred and I may have played a
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`part in that,
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`I certainly apologize for that.
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`As I stated to you yesterday,
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`there's opening
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`statements and closing arguments and we're at the point
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`now where I'm going to argue a little bit. One of the
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`benefits of doing the trial somewhat quickly is that a
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`lot of the information should be relatively fresh in
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`your head.
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`A lot came at you in a short period of time
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`but I noticed that you all were taking notes and that
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`shouldn't be much of a problem.
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`As we stated in the opening statements, if I say
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`anything to you during the course of my talk about what
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`a witness said, what a witness didn't say that doesn't
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`jive with your notes or your memories, please go with
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`yours. What I tell you up here, what I say to you up
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`here is not evidence.
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`It's not to be considered as
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`evidence.
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`Just as when Mr. Schmer has his opportunity,
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`what he says to you is not evidence either.
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`I thought a little bit about how I wanted to start.
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`I started thinking about the fact that what we were
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`dealing with here was a homeless case. And I wondered
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`if that was going to make any difference to anybody or
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`if it changed the way people thought about
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`the case or
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`how people should act towards one another.
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`And when I thought about that,
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`I thought about you
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`have blue collar crimes that they call it and white
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`collar crimes; and our society as a whole is usually
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`broken into segments.
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`Even with homeowners
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`associations,
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`there's a group of people.
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`A country club
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`has a group of people.
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`A city has a group of people.
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`A
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`state has a group of people.
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`A nation has group of
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`people.
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`They may all go about doing things differently.
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`Your group of friends may act completely different than
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`other groups of friends but how you act and interact
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`with them is how you have decided as a group to do that.
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`And I found that interesting because we heard some
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`testimony during the course of the trial about these
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`folks that have been forced to or due to circumstances
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`or whatever it may be find themselves without a home and
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`how they gravitate from place to place and how they find
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`themselves in the woods, not
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`two minutes away -— not a
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`two-minute drive from this courthouse or from downtown
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`or from these luxury condominiums,
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`less than a
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`five—minute —— call it a five—minute drive away from
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`here.
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`It could be a wooded area behind or next to a Frito
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`Lay plant where people set up camps and where they live
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`and they have their own way of dealing with each other.
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`They have their own way of how they go about their
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`lives. But one of the things that struck me,
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`that it
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`doesn't matter where or how.
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`There's a sign over the Judge's bench that says:
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`Equal justice under the law. And that's not lip
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`service. That shouldn't be words.
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`Everybody is
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`entitled —— wherever you come from or whatever you do ——
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`and maybe I sound like a Hallmark card but the fact
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`remains that equal justice under the law and that means
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`whether you are Bernie Madoff or whether you are a
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`homeless guy that is living off of West Colonial, you
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`are entitled to equal justice under the law and that
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`certainly applies to Mr. Spencer.
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`But it also certainly applies to Richy Rich.
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`Because Richy Rich was homeless, because he liked to
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`drink, because he didn't have a place to go doesn't mean
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`that his life had no value.
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`The fact that there is ——
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`you can look in the audience and there's nobody watching
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`this trial, other than us and we have no idea of knowing
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`who really cares about Richy Rich. Well,
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`the law does,
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`because it's equal justice under the law.
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`And I'm not intimating or trying to insinuate that
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`any of you at this point really don't care that Richy
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`Rich, he's just a homeless guy.
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`I know that's not true.
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`But it's merely one of the things I thought about as I
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`was trying to prepare to talk to you this afternoon.
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`The State had the burden of proof in this case, and
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`the state has charged Mr. Spencer with one count of
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`premeditated first degree murder with a weapon.
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`In
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`order for you to find Mr. Spencer guilty as charged,
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`the
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`State needed to prove to you three things: Obviously,
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`number one,
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`that Mr. Rich is dead and there certainly
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`seems to be no question about that.
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`Element number two,
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`the death was caused by the
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`criminal act of Wayne Edward Spencer. There's no
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`question about that.
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`There was a premeditated killing of Richy Rich,
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`AKA, Raymond Lynch. Let's talk about that.
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`I talked to
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`you yesterday when we did opening statements or maybe it
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`was the day before that this really wasn't a
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`who—done—it. This was not a question of who did it but
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`whether or not the act was going to be found excusable
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`But we charged him with premeditated killing and
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`one of the things you have to consider is, what does
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`premeditation mean?
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`A lot of folks think of
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`premeditation —— if they watch enough movies,
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`they think
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`the bank robbers that are sitting in somebody's basement
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`or they're sitting around a kitchen table and they have
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`their plan on how they're going to rob a bank and who's
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`going to be the get—away driver and which guy is going
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`to go to which teller and they think about premeditation
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`in terms of a plan and it can be that but it doesn't
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`have to be.
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`Under the law —— and the judge is going to give you
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`these instructions that killing with premeditation is
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`killing after consciously deciding to do so.
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`The
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`decision must be present in the mind at the time of the
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`killing.
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`The law does not fix the exact period of time
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`that must pass between the formation of the premeditated
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`intent to kill and the killing.
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`The period of time must
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`be long enough to allow reflection by the defendant.
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`And the premeditated intent to kill must be formed
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`before the killing.
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`So, of course,
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`the Court can't say or the law does
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`not say that ten seconds have to go by or 15 seconds
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`have to go by or an hour has to go by,
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`just enough time
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`for you to find that the defendant had a conscious
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`thought.
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`He stepped back.
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`He reflected.
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`He decided
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`this is what I want to do and that he went ahead and did
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`it.
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`
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`So let's talk about what we know about what
`
`happened. We know that Mr. Rich was struck at least
`
`four times. All of those blows were to the head. There
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`was a blow to the left —— to the left temple around the
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`ear. There was a blow up here. There was one back
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`here; and there's one on the heavy top of the skull,
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`four hits.
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`And I would submit to you after the first strike
`
`when Mr. Spencer hit Mr. Rich on the side of the head ~—
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`and I'll explain why that makes sense —— that would have
`
`been the first below. When Mr. Rich is staggering
`
`around bleeding profusely from the ear that almost had
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`been torn off,
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`that moment Mr. Spencer had a choice.
`
`He
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`had a choice to stop and walk away.
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`He had a choice to
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`stop and run away, or he had the choice to continue
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`doing what he did.
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`And I would submit to you that the evidence is
`
`after he took that first strike, he hit him again and
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`again and again. And I would submit to you,
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`ladies and
`
`gentlemen,
`
`that is premeditation. This is not an act of
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`passion.
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`It certainly isn't an act of self—defense, and
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`we'll talk about that in a little bit.
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`One,
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`two,
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`three,
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`four.
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`If it happened that -~ even
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`if it happened that fast, he knew exactly what he wanted
`
`to do. Every time he had to pick up -— by his own
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`definition to the police officer —- that three-foot
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`heavy log, every time he raised it over his head and
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`
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`crushed Mr. Rich's skull, every time that piece of wood
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`hit his head, he had the opportunity to stop and maybe
`
`Mr. Rich would still be alive. But no, bang again.
`
`What makes this even more egregious is the fact
`
`that the evidence is pretty clear that at least the last
`
`blow that was struck against Mr. Rich occurred while he
`
`was on the ground.
`
`He wasn't defending anything. When
`
`that last blow came on top of his skull —— and you saw
`
`the pictures.
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`I could throw them back up there, but
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`you'll have them in evidence.
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`When that last blow hit the top of that man's head,
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`Mr. Rich was already on the ground.
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`He was already
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`bleeding profusely.
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`How do we know this? We know this
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`two ways. We know this from the testimony of Chewey,
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`that he didn't hear anything beforehand.
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` who came in here yesterday, Mr. Kitchen, who told you
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` any yelling and screaming.
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`He didn't hear any
` arguments.
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`He didn't hear
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`raised over his arms(ph.)
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`on the ground.
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`If Mr. Kitchen really came in here with
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` He came out and he saw this man with both hands
`taking that club and swinging
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`that there was nobody standing in front of him.
`it down,
` There was nobody standing next to him.
`He saw this lump
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`And when we talk about credibility, let's think
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`
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`about this.
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`some sort of agenda, he would say: Yeah,
`I knew that
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`
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`was -— that was Mouthwash.
`I saw him laying there. But
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`
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`he didn't tell you that. All he said was he saw this
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`man in the same exact area where the body was later
`
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`discovered and he told you he saw this man swinging that
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`club down and hearing a thud, which scared him, which
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`We also know that Mr. Rich was on the ground and
` defenseless when this fatal blow came to the top of the
`
`
`
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`the wounds and the blood splatter that was found on the
` ground,
`that it was most indicative of this man being
` down.
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`made him leave.
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`skull based upon the medical examiner's testimony.
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`The
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`medical examiner told you that, based on the location of
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`We saw drops of blood. Mr. Schmer was very quick
`
`to point out that there were drops of blood away from
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`where the body was found. Okay.
`
`Now,
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`this cuts both
`
`ways.
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`It cuts to the act that Mr.
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`—— to the series of
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`events that Mr. Spencer tried to explain to police, of
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`striking the victim -— I'm sorry, striking Mr. Rich and
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`he's being around doozy —— woozy with blood dripping.
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`It made sense medically and scientifically to the
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`medical examiner because of the blood drips, his ear is
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`bleeding.
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`Then he falls on the ground and the rest of the
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`blood that is found is all coagulated in the hair and
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`the neck.
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`It's nowhere else.
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`The third way we know that this man murdered
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`Mr. Rich after he was already down was the stuff that we
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`heard throughout the course of the trial. We kept
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`hearing the fact that Mr. Spencer is a small guy.
`
`I'm a
`
`small guy,
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`five—seven,
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`five—six, whatever he said he
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`was,
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`five—seven.
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`Okay. We also heard testimony from the medical
`
`examiner and from other witnesses that Mr. Rich was very
`
`tall, maybe six—three, six—four.
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`Now, let's think about
`
`this logically.
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`You have a guy who's six—three,
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`six—four with a three foot —- let me just call it a log.
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`could have done that is if Mr. Rich is already on the
`
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` How is he going to —— how is he going to —- a short guy
`
`like Mr. Spencer, how is he going to get a direct shot
`
`
`in the very top of this man's head if he's only
` five—seven. He's got to reach to six—three. And not
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`
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`only does he have to hit, he has to come down flush to
` create the damage that he did.
` The only way he could have done that —- only way he
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` ground and completely defenseless. He's already
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`bleeding out. Maybe he's drunk. Maybe he's not. But
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`after he got hit two or three times with this log, he's
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`But he's not done —— Mr. Spencer is not done.
`One
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`more time,
`the very top of the skull, splitting him like
` a melon. That's how you know this is premeditation.
`
`Mr. Schmer is,
`in all likelihood, going to get up
`
` here and start talking you to about self—defense and how
` you need to consider this.
` Okay. The Judge is going to give you instructions
` on that, and she's going to give you two different types
` of instructions.
` on the —— they call it the justifiable use of deadly
` force and the justifiable use of nondeadly force.
`
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`I want you to pay attention to all of it, and
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`you've sworn to listen to the instructions and to follow
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`She's going to give you instructions
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`done.
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`the law.
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`So, of course, you need to read them.
`
`Deadly force means force likely to cause death or
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`great bodily harm.
`
`A person is justified in using
`
`deadly force if he reasonably believes that such force
`
`is necessary to prevent imminent death or great bodily
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`harm to himself or the imminent commission of some sort
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`of offense, maybe battery against himself or another.
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`Okay. What do we know from what Mr. Spencer told
`
`the police? What he told the police was that, number
`
`one, he got hit.
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`He couldn't be clear about how many
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`times.
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`It was a couple. Although,
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`there were no
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`visible injuries to him a few hours later, he wants you
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`to believe he got hit by this man and because of that he
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`
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`had to pick up -- with a fist, with no other weapon.
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`He's not justified under the law under these
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`instructions after being hit once or even being hit
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`twice to pick up a log and just start beating him to
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`death.
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`In deciding whether the defendant was justified in
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`the use of deadly force, you must
`
`judge him by the
`
`circumstances by which he was surrounded at the time.
`
`The danger facing the defendant need not have been
`
`actual. However,
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`to justify the use of deadly force,
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`the appearance of danger must have been so real that a
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`reasonably cautious and prudent person under the same
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`be avoided only through the use of that force.
`
`
`
` circumstances would have believed that the danger could
`
`
` Now,
`
`what do we know?
`What made Mr. Spencer
`
`
`finally kill Richy Rich.
`By his own words, what finally
`
`made him kill Mr. Rich are nothing more than words,
` nothing more than words. He'd already been hit.
` And what did Mr. Spencer tell the police?
`
`
`
`
`
`to get you, mother fucker.
`
`Excuse my language. Words.
`
`
`
`Mr. Spencer told the police that the last thing that
`
`
`
`Mr. Rich said while he was laying down was:
`I'm going
`
`
`
`
`And when he heard that, Mr. Spencer said oh, yeah?
`
`
`Boom, bang, again, done. That is not the justifiable
` use of deadly force under any circumstances, under any
`
`
`
`Now, you also have —— you're also going to be read
`
` the instruction as to the justifiable use of nondeadly
`
`
`force. Nondeadly force means force not likely to cause
` death or great bodily harm.
` It's going —— the Judge will read to you that Wayne
`
`
` against Richy Rich if the following two facts are
`
`
`proved: One,
`that Mr. Spencer —— Wayne Edward Spencer
` must have reasonably believed that such conduct was
`
`
`imminent use of unlawful force against Wayne Spencer or
`
`definition.
`
`Spencer would be justified in using nondeadly force
`
`necessary to defend himself against Richy Rich.
`
`The
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`the unlawful use of force by Richy Rich must have
`
`appeared to Wayne Spencer to be ready to take place.
`
`You've heard none of that.
`
`The only way this is going to make sense to you
`
`legally is if you want to entertain the theory that
`
`after Mr. Spencer took this three—foot
`
`log and beat Mr.
`
`Rich over the head with it twice, he took his stuff.
`
`He
`
`took his five dollars,
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`took his card and walked away;
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`and then somebody else came and finished the job. That
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`is the only way justifiable use of nondeadly force is
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`going to work; and I'd submit to you,
`
`ladies and
`
`gentlemen,
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`that's simply not supported by any evidence
`
`that you heard.
`
`
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`Okay.
`
`The idea that somebody else in the dead of
`
`night —— after Mr. Spencer took care of Mr. Rich,
`
`somebody else came along and finished it.
`
`It's not
`
`before you.
`
`You have no evidence to support that theory
`
`at all.
`
`So what you're left with is whether or not Mr. Rich
`
`actually did anything to Mr. Spencer; and the only
`
`evidence you have that Mr. Rich provoked,
`
`threatened,
`
`assaulted, hit Mr. Spencer are his own words.
`
`So let's
`
`look at those.
`
`Okay.
`
`The first time he met with the police the
`
`day of the murder, not only was he in a fine mood, he
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`wasn't acting stressed.
`
`He wasn't acting threatened.
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`He didn't look hurt, didn't complain of being hurt. Not
`
`only did he lie to the police about what he knew, he
`
`actually tried to throw the police two other suspects.
`
`Instead of saying:
`
`Jesus, it happened so fast.
`
`The man attacked me.
`
`I had to do it. No.
`
`He flat out
`
`lied. Not only does he -— not only did he have nothing
`
`to do with it; but
`
`two other guys probably did, a guy
`
`and another female. And the police, needing a suspect,
`
`wanting to find out who did this,
`
`they actually buy into
`
`it a little bit.
`
`They investigate the people that he
`
`tells them.
`
`They continue their investigation.
`
`When they interview him on April 22nd, almost a
`
`month later —— and you just heard the interview this
`
`morning and you'll have it in evidence and you're free
`
`listen to them all over again if you'd like. What's the
`
`first thing he does? He, again, denies having any
`
`knowledge.
`
`He denies having anything to do with this
`
`death.
`
`It's only when Detective Newton says:
`
`Look, I've
`
`been doing this for a month and talked to the medical
`
`examiner. We know how it happened. We've been talking
`
`to these people. You're the guy.
`
`Just tell us what
`
`
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`happened.
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`And according to Detective Newton, he tries to
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`sweeten the pot a little bit.
`
`He knows the man doesn't
`
`want to admit what he did because he's already denied it
`
`to him twice.
`
`So he said: Well, he's a big guy.
`
`You're a small guy. Maybe you had to defend yourself.
`
`Maybe he wasn't liked. And he buys into it.
`
`That's when the first time Mr. Spencer decides
`
`yeah, it was self—defense.
`
`I had to do it.
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`And I'd submit to you,
`
`ladies and gentlemen, it
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`wasn't until Detective Newton gave him that hint that he
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`had already thought of it.
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`So all of a sudden, yep,
`
`self—defense. You're right.
`
`Okay.
`
`How did it happen? Well, he attacked me.
`
`He came at me, him and another guy and he punched me a
`
`couple times and so I had to hit him. Okay. Well,
`
`that
`
`doesn't make a whole lot of sense.
`
`And Detective Newton goes through it with him; and,
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`you know, he was consistent with what the testimony you
`
`heard: Mr. Spencer,
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`that doesn't make any sense. What
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`the injuries are on this man doesn't jive.
`
`The physical
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`evidence doesn't jive with how you say it ha
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