9/10/2020 9:57 AM
`20CV20255
`
`
`
`
`IN THE CIRCUIT COURT OF THE STATE OF OREGON
`
`FOR THE COUNTY OF KLAMATH
`
`STATE OF OREGON,
`
`Plaintiff,
`
`Case No. 1200528CR
`
`vs.
`
`CA No. A151999
`
`MARK DOUGLAS MCQUEEN,
`
`Defendant.
`
`TRANSCRIPT OF PROCEEDINGS
`Klamath Falls, Oregon
`Trial and Sentencing
`June 21 and 22, 2012
`
`BEFORE: THE HONORABLE ROXANNE OSBORNE, CIRCUIT JUDGE
`
`APPEARANCES:
`
`FOR THE STATE:
`
`FOR THE DEFENDANT:
`
`Sharon Forster
`Deputy District Attorney
`316 Main Street
`Klamath Falls, OR 97601
`
`Philip Studenberg
`Attorney at Law
`200 Pine Street
`Klamath Falls, OR 97601
`
`(Proceedings recorded by electronic sound recording;
`
`transcript produced by Jean Mueller Transcribing -
`
`P.O. Box 1049, Lebanon, OR 97355)
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`Pet. Exh. 3, pg. 1 of 200
`
`
`20CV20255
`
`
`
`
`IN THE CIRCUIT COURT OF THE STATE OF OREGON
`
`FOR THE COUNTY OF KLAMATH
`
`STATE OF OREGON,
`
`Plaintiff,
`
`Case No. 1200528CR
`
`vs.
`
`CA No. A151999
`
`MARK DOUGLAS MCQUEEN,
`
`Defendant.
`
`TRANSCRIPT OF PROCEEDINGS
`Klamath Falls, Oregon
`Trial and Sentencing
`June 21 and 22, 2012
`
`BEFORE: THE HONORABLE ROXANNE OSBORNE, CIRCUIT JUDGE
`
`APPEARANCES:
`
`FOR THE STATE:
`
`FOR THE DEFENDANT:
`
`Sharon Forster
`Deputy District Attorney
`316 Main Street
`Klamath Falls, OR 97601
`
`Philip Studenberg
`Attorney at Law
`200 Pine Street
`Klamath Falls, OR 97601
`
`(Proceedings recorded by electronic sound recording;
`
`transcript produced by Jean Mueller Transcribing -
`
`P.O. Box 1049, Lebanon, OR 97355)
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`Pet. Exh. 3, pg. 1 of 200
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`
`
`WITNESS INDEX
`
`STATE’S
`
`Connie Richardson
`
`Jason Waggoner
`
`Cameron Gordon
`
`Dennis Davenport
`
`Brandon Amaya
`
`Mark McQueen Jr.
`
`Brandon Amaya
` (Re-called)
`
`D
`
`26
`
`49
`
`52
`
`75
`
`76
`
`83
`
`99
`
`X
`
`38
`
`--
`
`73
`
`--
`
`--
`
`97
`
`--
`
`i
`
`ReD
`
`ReX
`
`47
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`48
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`Dr. Robert Melton
`
`106
`
`111
`
`112
`114
`
`113
`114
`
`DEFENSE’S
`
`Mark McQueen Jr.
`
`Mark McQueen Sr.
`
`98
`
`116
`
`--
`
`127
`
`--
`
`145
`150
`
`--
`
`147
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`10
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`14
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`18
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`19
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`20
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`21
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`22
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`24
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`25
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`Pet. Exh. 3, pg. 2 of 200
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`
`ii
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`EXHIBIT INDEX
`
`STATE'S
`
`DESCRIPTION
`
`OFFERED
`
`REC’D
`
`1
`
`2
`
`3
`
`4
`
`Photographs of
`Ms. Richardson
`
`Photographs of
`Ms. Richardson
`
`Photographs of
`Ms. Richardson
`post-surgery
`
`35
`
`36
`
`36
`
`35
`
`36
`
`36
`
`Photographs of
`Defendant’s Hands
`
`104
`
`104
`
`5
`
`Video of footage from
`emergency department
` (Played for the jury at page 51)
`
`51
`
`51
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`Pet. Exh. 3, pg. 3 of 200
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`
`
`iii
`
`GENERAL INDEX
`
`June 21, 2012 . . . . . . . . . . . . . . . . . . .
`
`Pretrial Matters . . . . . . . . . . . . . . .
`
`Stipulation of the Parties
` (Re: Aggravating Factors)
`
`. . . . . . . .
`
`State’s Motion to Exclude Witnesses with
` Exception of Officer Gordon . . . . . . .
`
`Defense’s Objection to Officer Gordon
` Remaining in Courtroom as Representative
`
` Court’s Ruling (Re: Officer Gordon) . . .
`
`State’s Motion to Dismiss Count 3 . . . . .
`
` Court’s Ruling
`
`. . . . . . . . . . . . .
`
`Court to Prospective Jurors
`
`. . . . . . . . .
`
`1
`
`1
`
`2
`
`3
`
`3
`
`3
`
`5
`
`5
`
`6
`
`Precautionary Instructions . . . . . . . . . . 11
`
`State’s Opening Statement
`
`. . . . . . . . . . 18
`
`Defense’s Opening Statement
`
`. . . . . . . . . 25
`
`State Begins Case-In-Chief . . . . . . . . . . 26
`
`June 22, 2012
`
`. . . . . . . . . . . . . . . . .
`
`104
`
`State Rests
`
`. . . . . . . . . . . . . . . .
`
`115
`
`Defense Begins Case-In-Chief . . . . . . . .
`
`116
`
`Defense Rests
`
`. . . . . . . . . . . . . . .
`
`150
`
`State’s Closing Argument . . . . . . . . . .
`
`152
`
`Defense’s Closing Argument . . . . . . . . .
`
`162
`
`State’s Rebuttal Closing Argument
`
`. . . . .
`
`170
`
`Court Instructs Jury . . . . . . . . . . . .
`
`175
`
`Jury Deliberates . . . . . . . . . . . . . .
`
`184
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`10
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`13
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`14
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`15
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`19
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`20
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`25
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`Pet. Exh. 3, pg. 4 of 200
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`
`
`iv
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`GENERAL INDEX (continued)
`
`Verdicts
`
`. . . . . . . . . . . . . . . .
`
`186
`
`Jury Poll . . . . . . . . . . . . . . . .
`
`187
`
`Jury Excused
`
`. . . . . . . . . . . . . .
`
`188
`
`Court’s Ruling (Re: Probation Violation Case) 188
`
`Sentencing . . . . . . . . . . . . . . . . . . .
`
`189
`
`Court Imposes Sentence on PV
`
`. . . . . .
`
`189
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`State’s Recommendation
`
`. . . . . . . . .
`
`189
`
`Defense’s Recommendation
`
`. . . . . . . .
`
`190
`
`Court Imposes Sentence
`
`. . . . . . . . .
`
`191
`
`OUT OF THE PRESENCE OF THE JURY:
`
`Colloquy (Re: Jury Instructions)
`
`. . . .
`
`151
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`25
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`Pet. Exh. 3, pg. 5 of 200
`
`
`
` Pretrial Matters
` Stipulation of the Parties
`
`1
`
`(9:18 a.m.)
`
`THE COURT: Are you ready to do that or not?
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`MR. STUDENBERG: If we could get Ms. Durham
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`(phonetic) in here to write this down.
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`THE COURT: Okay. Oh, she’s gonna keep track
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`of it for you?
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`MR. STUDENBERG: Yeah.
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`THE COURT: Okay, you ready? We’re gonna call
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`out the juror numbers. Be ready. See, we gave you
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`that form right there to write on? It’s right there.
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`That way it’s easier to keep track of where everybody
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`is.
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`numbers.
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`COURT CLERK: (inaudible) just write down the
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`THE COURT: Yeah. We don’t do the names yet,
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`we just do numbers, okay? Here we got.
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`(Juror numbers called)
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`THE COURT: Okay, now you can match up names
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`and numbers.
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`Are there any preliminary matters this morning?
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`MR. STUDENBERG: There’s one I think as far as
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`a stipulation on the aggravating factor. We’re prepared
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`to agree he was on supervision.
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`THE COURT: Okay. I’ve got a written --
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`MR. STUDENBERG: Yeah.
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`Pet. Exh. 3, pg. 6 of 200
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`
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` Pretrial Matters
` Stipulation of the Parties
`
`2
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`THE COURT: -- stipulation.
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`MS. FORSTER: I filed one. You got a copy of
`
`it?
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`MR. STUDENBERG: Yeah. Okay. I didn’t know
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`if we needed to put that on the record.
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`MS. FORSTER: Yeah, I would rather. Yeah.
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`MR. STUDENBERG: Okay. Other than that I
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`would --
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`THE COURT: Okay. It’s part of the record.
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`It was filed on June 19th. Notice of Waiver and
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`Stipulation of Parties was submitted by the State. So
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`you are agreeing on behalf of the Defendant?
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`MR. STUDENBERG: Yeah. I explained it to Mr.
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`McQueen that at this point we’d rather stipulate than
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`have the jury hear that evidence.
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`THE COURT: Okay.
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`MR. STUDENBERG: We may change that when he
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`testifies, we’ll see if he does.
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`MS. FORSTER: Well, no it’s a separate jury
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`thing all together.
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`MR. STUDENBERG: I know. I know.
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`MS. FORSTER: Okay. Also, I would ask that
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`witnesses be excluded --
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`MR. STUDENBERG: Yeah, I was gonna ask that --
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`MS. FORSTER: -- with the exception of Cameron
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`Pet. Exh. 3, pg. 7 of 200
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`
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` Pretrial Matters
` State’s Motion for Witnesses to be Excluded
` with Exception of Officer Gordon / Defense Objects
`
`3
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`Gordon who is the lead on this.
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`MR. STUDENBERG: All right. And we would
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`object to --
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`THE COURT: And that’s all right with you?
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`MR. STUDENBERG: Well, we would object to that
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`for the record because it violates our right to
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`confrontation --
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`THE COURT: Okay. Well I don’t see why he has
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`to sit in here when he doesn’t even get to sit at
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`counsel table and you don’t -- I mean, I can understand
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`when you need somebody here to step and fetch it and do
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`all that stuff, but you don’t even ever use that person
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`so what is the point of that?
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`MS. FORSTER: Because he wanted to see how the
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`trial went and if I do need anything he’s here. He’s
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`never seen one go this far, Your Honor.
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`THE COURT: All right. He can sit here then.
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`MR. STUDENBERG: For the record we would object
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`on (inaudible).
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`THE COURT: All right. Any issues about
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`Jackson Deno (phonetic) or any of that stuff?
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`MR. STUDENBERG: No.
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`THE COURT: Okay. All right. Anybody who
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`thinks they’re gonna give testimony, if you think you’re
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`gonna be called as a witness, you have to wait outside.
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`Pet. Exh. 3, pg. 8 of 200
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`
`
` Pretrial Matters
` State’s Motion for Witnesses to be Excluded
` with Exception of Officer Gordon / Defense Objects
`
`4
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`But if you’re just here to watch the trial, you can stay
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`in here.
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`MR. STUDENBERG: His mom is under subpoena by
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`the State apparently, so they want her exlcuded.
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`THE COURT: Okay. You’ll have to wait
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`outside, okay?
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`MS. FORSTER: And, Your Honor, I don’t
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`anticipate that we’re gonna get to her probably until
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`late, late this afternoon. I’d just hate for her to
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`have to sit out there on that bench all day. If she
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`wants to leave and leave a number --
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`THE COURT: Okay. Well you talk to your
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`little witness people and have them communicate that to
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`her.
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`(Pause)
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`MS. FORSTER: I’m trying to remember, Your
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`Honor, do you want a witness list from us to tell the
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`jurors or do you have us do it? You have us do it,
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`don’t you?
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`THE COURT: (No audible response)
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`MS. FORSTER: Okay.
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`THE COURT: I haven’t gotten any jury
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`instructions from you yet though.
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`MS. FORSTER: I do have them here.
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`Oh, Your Honor, the State is prepared to, at
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`Pet. Exh. 3, pg. 9 of 200
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`
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` Pretrial Matters
`
`
`5
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`this time, dismiss Count 3, the Kidnaping charge.
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`MR. STUDENBERG: Okay. We certainly don’t --
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`THE COURT: Any objection?
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`MR. STUDENBERG: We don’t object to that.
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`THE COURT: All right. Count 3 is dismissed.
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`Remind me not to read it to them when I’m reading the
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`Indictment.
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`MS. FORSTER: Oh, okay.
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`THE COURT: I’ll just cross it out. So it’s
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`now a two count Indictment.
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`MS. FORSTER: Two count Indictment.
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`THE COURT: Attempted Murder and Assault in
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`the Second Degree?
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`MS. FORSTER: Assault in the second.
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`MR. STUDENBERG: Yeah. Fair enough.
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`THE COURT: All right. Eighty-one? That
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`person -- we took that person out. Eighty-one, seat
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`number 12, that person was excused by the Court. So in
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`seat number 12, put number 89. Eighty-nine goes there.
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`MR. STUDENBERG: All right.
`
`(Pause)
`
`THE COURT: Okay, you guys ready?
`
`MS. FORSTER: Yes, Your Honor.
`
`THE COURT: Because I -- I already got all my
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`names filled in. So in the box are Buckley Lokey,
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`Pet. Exh. 3, pg. 10 of 200
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`
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` Court to Prospective Jurors
`
`6
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`Anna Hodges, Carol Beeman, Rudy Roose, Cara Chewey,
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`Ethan Smith, Catherine Beats, Timothy Anderson, Karen
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`Hooks, Jennifer Keeler, Pamela Nevis and Sandra Kaufman.
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`That’s the 12. And then we put two more in there, Billy
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`Dailey and Ruth Davis. Because there’s actually 14
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`chairs in there. So we put 14 people in, but we
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`actually end up with 12. The reason we have 14, in case
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`-- sometimes you have a longer trial that’s like a week
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`long and you want to pick alternates in case somebody
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`gets sick, but we don’t do that on a one or a two day
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`trial.
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`All right. You can go get them. Here you go.
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`And they’ll come down and they’ll sit in order, 14 there
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`and the rest of them back in that corner in order.
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`(Pause)
`
`(Prospective jurors enter courtroom at 9:41
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`a.m.)
`
`THE COURT: Okay, and you’re number --
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`PROSPECTIVE JUROR ANDERSON: Ninety-six.
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`THE COURT: -- 96?
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`PROSPECTIVE JUROR ANDERSON: Ninety-six.
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`THE COURT: Okay, Mr. Anderson, you’ve been
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`excused for tomorrow?
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`PROSPECTIVE JUROR ANDERSON: Yes.
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`THE COURT: So you can go today. Thank you
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`Pet. Exh. 3, pg. 11 of 200
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`
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` Court to Prospective Jurors
`
`7
`
`very much for your time. We really appreciate it. And
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`please keep calling in.
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`And Ms. Davis, you need to move down to his
`
`seat. Are you guys getting this?
`
`MR. STUDENBERG: Okay, so Anderson is gone, got
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`Davis.
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`THE COURT: Okay, and your number?
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`PROSPECTIVE JUROR NEVIS: 144.
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`THE COURT: 144, Ms. Nevis. And you’ve been
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`excused for tomorrow?
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`PROSPECTIVE JUROR NEVIS: (No audible
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`response)
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`THE COURT: All right. You are excused right
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`now. Please keep calling in. And into that seat goes
`
`Ms. Dorch (phonetic). Come on up. And she is number
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`76.
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`Okay, so that’s everybody in the box that was
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`excused for tomorrow?
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`(No audible response)
`
`THE COURT: Okay. In the back, anybody else
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`that was excused for tomorrow?
`
`(No audible response)
`
`THE COURT: All right. Good. Everybody
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`needs to stand and raise a hand.
`
`(Prospective jurors sworn to answer questions)
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`Pet. Exh. 3, pg. 12 of 200
`
`
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` Court to Prospective Jurors
`
`8
`
`THE COURT: All right. Have a seat. Get
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`comfortable.
`
`Ladies and gentlemen, today we are selecting a
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`trial jury for the criminal case of the State of Oregon
`
`vs. Mark McQueen.
`
`The State is represented by Sharon Forster.
`
`MS. FORSTER: Good morning.
`
`THE COURT: And the Defendant is represented
`
`by Mr. Phil Studenberg.
`
`MR. STUDENBERG: Hi. This is Mark McQueen.
`
`Sorry.
`
`THE COURT: The Defendant is charged with the
`
`offense of Attempted Murder and Assault in the Second
`
`Degree as follows:
`
`Count 1, Attempted Murder. The said Defendant,
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`on or about March 2nd, 2012, in Klamath County, Oregon,
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`did unlawfully and intentionally attempt to cause the
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`death of X Connie R.L. Richardson, another human-being.
`
`Said act of Defendant being contrary to the statutes in
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`such cases made and provided and against the peace and
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`dignity of the State of Oregon.
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`Count 2, Assault in the Second Degree
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`Constituting Domestic Violence. The Defendant, on or
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`about March 2nd, 2012 in Klamath County, Oregon, did
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`unlawfully and knowingly cause serious physical injury
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`18
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`21
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`24
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`25
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`Pet. Exh. 3, pg. 13 of 200
`
`
`
` Court to Prospective Jurors
`
`9
`
`to X Connie R.L. Richardson. And the State further
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`alleges that this was an act of domestic violence as
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`defined in ORS 135.230 contrary to statute and against
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`the peace and dignity of the State of Oregon.
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`To these offenses the Defendant has entered a
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`plea of not guilty. A plea of not guilty denies that
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`the Defendant is guilty of the offenses. Under our
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`system of justice the Defendant is presumed innocent of
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`any crime or wrongdoing unless and until the State
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`proves the Defendant’s guilt beyond a reasonable doubt.
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`Therefore, the burden is on the State to prove the
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`Defendant’s guilt beyond a reasonable doubt.
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`Some of you may have served as jurors in civil
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`cases where lesser standards of proof apply, for example
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`proof by a preponderance of the evidence or proof by
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`clear and convincing evidence. In criminal cases,
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`however, the State’s proof must be more convincing, it
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`must be beyond a reasonable doubt.
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`Reasonable doubt is doubt based on common sense
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`and reason. Reasonable doubt is an honest uncertainty
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`as to the guilt of the Defendant. A reasonable doubt
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`exists when after careful and impartial consideration of
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`all of the evidence, you are not convinced to a moral
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`certainty that the Defendant is guilty.
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`Each juror must be able to judge this case
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`Pet. Exh. 3, pg. 14 of 200
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` Court to Prospective Jurors
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`10
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`fairly and objectively. Therefore, if any juror knows
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`of or has any association with any of the parties,
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`lawyers, or witnesses, or if any juror has any knowledge
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`of or has formed an opinion about this case, this should
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`be brought to the Court’s attention.
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`(Voir dire examination of the jurors was
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`conducted at 9:45 a.m. and completed at 10:43 a.m.)
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`THE COURT: The jury will stand and be
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`sworn.
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`(Jurors sworn to try the case)
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`THE COURT: Have a seat please. Thank you.
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`Ladies and gentlemen in the back, thank you very
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`much for your time today, we really appreciate it. You
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`are excused for the day, please keep calling in.
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`And you guys have earned a break. So, we’ll
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`take a break. This is your jury room, you can go in
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`there. There are two restrooms in there. And we’ll get
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`you coffee and drinks and get you all settled in.
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`JUROR: (inaudible)
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`THE COURT: Yes, Mrs. Hardin will take you
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`down to smoke outside. All right.
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`And Court is in recess. Thank you.
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`(A recess was had at 10:44 a.m. The following
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`proceedings occurred in open court at 11:03 a.m. out of
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`the presence of the jury:)
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`Pet. Exh. 3, pg. 15 of 200
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` Precautionary Instructions
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`11
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`THE COURT: Do you realize that you didn’t
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`send a verdict form?
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`MS. FORSTER: I’ll talk to Mulina (phonetic),
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`no.
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`THE COURT: Okay. Because there’s no verdict
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`form. And it’s -- you know, it’s not essential that it
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`be done right this minute, but just so you know.
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`MS. FORSTER: Yeah. Mulina (phonetic) -- I
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`just kind of glanced through.
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`THE COURT: And remember, it’s only going to
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`have those two counts.
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`MS. FORSTER: Two. Yeah, that’s what I told
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`her. I think she’s already deleted that off.
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`THE COURT: Okay. You guys ready for the
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`jury to be brought in?
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`MR. STUDENBERG: Yes.
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`THE COURT: All right. Okay. Bring them in.
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`(The following proceedings occurred before the
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`jury at 11:05 a.m. as follows:)
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`THE COURT: Members of the jury, the law that
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`applies to this case will be given to you in part in
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`these precautionary instructions. After you have heard
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`the evidence and after the arguments of the lawyers, I
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`will give you further instructions regarding the legal
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`rules you must follow in deciding this case.
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`Pet. Exh. 3, pg. 16 of 200
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` Precautionary Instructions
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`12
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`Your duty is to decide the facts from the
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`evidence. You and you alone are the judges of the
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`facts. You will hear the evidence, decide the facts,
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`and then apply those facts to the law I will give you.
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`That is how you will reach your verdict. In doing so
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`you must follow the law whether you agree with it or
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`not.
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`To be an effective juror, you must also not be
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`influenced to any degree by personal feelings, sympathy
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`for or prejudice against any party, witness, or lawyer
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`or any other participant in this case.
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`The evidence you are to consider in this case
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`consists of testimony of the witnesses and exhibits
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`received in evidence. Exhibits are physical things such
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`as letters, photographs, charts, or physical objects.
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`You will be able to examine the exhibits while you
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`deliberate. You may draw any reasonable inferences from
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`the evidence, but you must not engage in guesswork or
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`speculation.
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`The fact that a criminal charge has been filed
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`against the Defendant is not evidence. The Defendant is
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`innocent of any crime unless and until the State proves
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`the Defendant’s guilt beyond a reasonable doubt.
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`From time to time a lawyer may make an objection
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`to evidence. I will decide whether or not it is proper
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`Pet. Exh. 3, pg. 17 of 200
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` Precautionary Instructions
`
`13
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`under the law for you to consider such evidence. Do not
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`speculate about why the objection was made or about why
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`I ruled as I did. If I overrule an objection, the
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`question may be answered or the exhibit received. If I
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`sustain an objection, the question cannot be answered or
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`the exhibit cannot be received. Whenever I sustain an
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`objection to a question, ignore the question and do not
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`guess what the answer would have been.
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`Sometimes I may order that evidence be stricken
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`from the record and that you disregard or ignore
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`evidence. When you are deciding the case, you must not
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`consider the evidence that I told you to disregard.
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`The opening statements and closing arguments of
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`the lawyers are intended to help you understand the
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`evidence, although their statements and arguments are
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`not part of the evidence.
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`You must not interpret any statement, ruling or
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`remark I make during this trial as any indication that I
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`have formed any opinion about the facts or outcome of
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`this case. You and you alone are to decide the facts.
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`You must decide how believable the evidence is and what
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`weight or value you will give that evidence.
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`During this trial you may be allowed to ask
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`questions of the witnesses. If you have any questions
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`of the witness, you must submit them in writing to the
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`Pet. Exh. 3, pg. 18 of 200
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` Precautionary Instructions
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`14
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`clerk. I will then display them to the attorneys and we
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`will decide whether or not they get to be asked, because
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`sometimes they violate the rules of evidence and you
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`can’t ask that question. Then -- oh, here’s this part.
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`Your questions are subject to the rules of evidence just
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`as the lawyer’s questions are. I will review the
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`question with the lawyers and will rule on whether the
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`question may be asked.
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`If the question is not asked, jurors should not
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`draw any inferences about my ruling or speculate as to
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`what the answer to the question might have been. Do not
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`weigh answers to juror questions any differently than
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`any other answer simply because the answer was given in
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`response to a juror question.
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`You may take notes if you wish during the trial.
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`And you should have notebooks and pens if you want to.
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`However, please keep in mind that each party is entitled
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`to the considered decision of each juror. Therefore,
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`during deliberation you should not give undue weight to
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`another juror’s notes if those notes conflict with your
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`recollection of the evidence. Do not allow your note
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`taking to interfere with your ability to observe and
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`evaluate testimony. Whenever you leave the courtroom,
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`your notes should be left in the jury room.
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`Do not discuss this case during the trial with
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`Pet. Exh. 3, pg. 19 of 200
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` Precautionary Instructions
`
`15
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`anyone including any of the lawyers, parties, witnesses,
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`your friends, or members of your family. Do not discuss
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`this case with other jurors until you begin your
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`deliberations at the end of the case. Do not attempt to
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`decide the case until you begin your deliberations.
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`Do not make any independent personal
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`investigations into any facts or locations connected
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`with this case. Do not look up any information from any
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`source. Do not communicate any private or special
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`knowledge about any of the facts of this particular case
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`to your fellow jurors. Decide the case only on the
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`evidence received here in court.
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`This is the new part of the jury instruction.
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`Ready? And you’ll see why it’s new. In this age of
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`instant electronic communication and research, I want to
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`emphasize that in addition to not speaking face to face
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`with anyone about the case, you must not communicate
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`with anyone about the case by any other means including
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`by telephone, text message, e-mail, internet chat,
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`blogs, or social networking websites. You must not
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`provide any information about the case to anyone by any
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`means whatsoever, and that includes the posting of
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`information about the case or what you are doing in the
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`case on any device or internet site including blogs,
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`chat rooms, social networking sites, or any other means.
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`Pet. Exh. 3, pg. 20 of 200
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` Precautionary Instructions
`
`16
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`In addition to conventional research, you also
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`must not use any internet search engines, such as Google
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`and all of the others, to look for any information about
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`the case, the law that applies to the case, or the
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`people involved in the case, including the Defendant,
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`the witnesses, the lawyers, or the judge. Don’t be
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`looking me up on Google. Do not use any map program or
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`mapping system to attempt to view or locate any of the
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`locations that may be discussed in this case.
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`In short, do not communicate with anyone by any
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`means concerning what you see or hear in the courtroom.
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`And do not try to find out more about this case by any
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`means other than what you heard in the courtroom.
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`Ignore any attempted improper communication. If
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`any person tries to communicate with you about this
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`case, tell that person you cannot discuss the case
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`because you are a juror. If that person persists,
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`simply walk away and report the incident to the Court.
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`After you have rendered your verdict or have
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`been otherwise discharged by me, you will be free to do
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`any research you choose or share your experiences either
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`directly or through your favorite electronic means.
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`Remember that all phones, PDA’s, laptops and other
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`electronic devices must be turned off while you are in
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`court and while you are in deliberations.
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`Pet. Exh. 3, pg. 21 of 200
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` Precautionary Instructions
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`17
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`We will now hear the opening statements in which
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`the lawyers will outline the evidence as they expect it
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`to be. After the opening statements the evidence will
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`be presented. At the conclusion of the evidence the
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`lawyers will make their closing arguments to you, I will
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`then instruct you about the law that applies to this
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`case and you will begin your deliberations.
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`At the end of the trial you will have to make
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`your decision based on what you recall of the evidence.
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`You will not have a written transcript to consult and it
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`is difficult to play back recorded testimony, so that is
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`not typically done. I urge you to pay close attention
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`to the testimony as it is given.
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`Yes?
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`JUROR (Male): When I was asked earlier if I
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`knew anybody, if I recognized anybody, I did not. But
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`there is a new person in here that I recognize them.
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`THE COURT: Okay. Can you point them out?
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`JUROR (Male): (Indicating)
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`THE COURT: Oh, okay. But you’re not a
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`witness or anything?
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`SPECTATOR: No.
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`THE COURT: No. Just a spectator.
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`JUROR (Male): I didn’t hear the name on the
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`witness list.
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`Pet. Exh. 3, pg. 22 of 200
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` State’s Opening Statement
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`18
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`THE COURT: Okay. So, it’s good. No
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`problem. Thank you.
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`JUROR (Male): All right.
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`THE COURT: Okay. You may proceed.
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`MS. FORSTER: Thank you, Your Honor.
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`As the Judge said, this is an opportunity for us
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`to do opening statements, and what it is about is for me
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`to tell you what I believe the State’s evidence is going
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`to show. We’re going to go briefly through some slides
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`as to what the State has to prove so you can kind of
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`take a mental note as we go along as to what I have to
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`prove in order for you to return that verdict that I’m
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`gonna be looking for. And there are certain elements
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`that we have to prove and we’re gonna go through those.
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`At the end of this I will have an opportunity to
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`come back and talk to you again. We’ll go back through
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`these slides and kind of mentally check them off to make
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`sure that I have proved them as I said I was going to.
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`It’s difficult, sometimes things, once somebody gets on
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`the stand and takes the oath, sometimes things may
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`change. So, we really -- you know, I know what the
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`evidence is expected to show, now let’s see if it does
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`and we’ll complete that at the end.
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`This case is about, it is domestic violence,
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`it’s horrific domestic violence. Connie Richardson,
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`Pet. Exh. 3, pg. 23 of 200
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`
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` State’s Opening Statement
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`19
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`we’ll refer to her as Ramona, was engaged in a
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`relationship with Mark McQueen. They had been in a
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`relationship for about six or eight months. She -- it’s
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`not real clear to me whether she had moved in or was
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`moving out. You’re gonna hear from her and she can tell
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`you that, with him. They drink, probably drink more
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`than they should. They got in an argument on March 2nd.
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`His son, Mark Junior, was a runaway, was on the runaway
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`list. And his friend, Jesse Schaeffer, was on the
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`runaway list. They were at Mr. McQueen’s house and
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`they weren’t supposed to be.
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`Ms. Richardson came over that day -- I think she
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`was in the process of moving out is what this is about -
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`- and they got in an argument. He was already irritated
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`that she was moving. He found out that one of her
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`friends had given her a cell phone. She was now getting
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`independent from him. He was irritated. She came in
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`and said, “These kids aren’t supposed to be here. How
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`stupid of you to let those kids come in here. You don’t
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`have a brain. These kids can’t be here.” That made him
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`so angry that he hit her in the jaw. And he hit her
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`again and again and again and again until he broke her
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`jaw in not one place but two. Her eye socket, you’re
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`gonna see pictures of this, is way out here. Was so
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`many more than one hit. She had to have surgery.
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`Pet. Exh. 3, pg. 24 of 200
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` State’s Opening Statement
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`20
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`There’s plates permanently here. One plate to hold
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`this one, another plate to hold this one.
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`Because what she’s gonna tell you is at some
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`point she doesn’t -- after that first punch things got
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`really fuzzy so she’s not real sure exactly what he did
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`to her after that, and at some point she remembers him
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`having her by the arm and walking along the park. This
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`happened over in California and there’s that little park
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`right there by the -- by his house. He had her by the
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`arm and he was walking down the road saying, “I don’t
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`know what I’m gonna do with you.” He was looking for a
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`car to throw her under so then nobody would know he did
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`it.
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`The next thing she remembers is sitting in his
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`house begging him to take her to the hospital.
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`Wouldn’t take her to the hospital. He told her,
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`“Because if I take you to the hospital, I’m gonna get in
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`trouble.” Blood is just gushing out of an eye.
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`His son comes in the house with his friend and
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`he says, “Dad, you better take her to the hospital.
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`She’s hurt really bad.” He finally agrees to take her
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`to the hospital. And you’re gonna see a video of him
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`pulling up to the ER at Sky Lakes. When you look at the
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`time from when he -- the car stopped until the time his
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`foot came off the brake, never went into gear or
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`Pet. Exh. 3, pg. 25 of 200
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`
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` State’s Opening Statement
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`21
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`anything like that, it’s 26 seconds. She was out and
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`he was gone.
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`He says he loves her. He would never do
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`anything like that to her on the jail call to his mom.
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`“I love her. I would never hurt her. All I did was try
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`to nurture her, help her.” He said, “I don’t know how
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`it happened. Maybe she fell off her bike.” Well sure,
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`there’s several different stories that is told.
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`You’re gonna see pictures of his hands all
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`busted up, marks all over his hands, nothing on the
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`inside, just on the outside.
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`He would never hurt her, but yet he wouldn’t
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`care enough to even take her into the ER. Wouldn’t even
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`stay with her to see how she was doing.
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`He ran back to his house then went over to a
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`neighbor’s house and hid out the next day. The police
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`kept checking his house, checking his house, checking
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`his house trying to find him. Somebody finally figured
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`out he was in there and the SWAT Team came out. He
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`took Jesse Schaeffer into the attic and hid in the
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`attic. And while he was in the attic he told Jesse
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`Schaeffer what he did and why he hit her is because she
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`called him stupid. He doesn’t like that. That’s the
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`only reason, she said the wrong thing.
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`The SWAT Team eventually brought him out and
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`Pet. Exh. 3, pg. 26 of 200
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`
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` State’s Opening Statement
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`22
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`that’s why we’re here today.
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`He is charged with Attempted Murder. Ladies and
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`gentlemen, we talked about it in voir dire and you’re
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`gonna see the evidence. You’re gonna have to join the
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`dots. One time maybe that is to shut her up. When you
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`knock her unconscious then you keep beating her and she
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`doesn’t remember and you take her down the road to try
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`to find a car to throw her under, you’re gonna have to
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`make that call. No reason other than to kill her, to
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`beat her is --
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`MR. STUDENBERG: Your Honor, I’d object. This
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`is improper argument. (inaudible)
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`MS. FORSTER: Okay. Next count is Assault in
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`the Second Degree constituting domestic violence.
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`That’s for breaking her jaw. Just that simple. That’s
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`all it is.
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`To establish the crime of Attempted Murder the
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`State must prove beyond a reasonable doubt the following
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`three elements:
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`That it happened in Klamath County.
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