Tortoise
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Just placing my transcript of the 404b hearing allowing Brandon Boudreaux to testify about the shooting
State: the court wants a out in public response in front of the witness?
Judge: yes
State: Your honor, the State believes that this is part of a common scheme and plan. The defendant with her co-conspirators conspired to cause the death of multiple individuals in her world. She is charged specifically with the death of Tylee, JJ and Tammy, she is charged with conspiracy on those issues, and the State’s belief, in the electronic evidence, the telephone evidence, the witness testimony through those people who participated in these conversations clearly establish a conspiracy to remove individuals who were obstacles to her future life together with Chad Daybell and to remove obstacles to their plan for this life together. The shooting at and killing of spouses of individuals who were part of this group was part of this common scheme or plan. The financial benefit to Ms Vallow-Daybell’s niece, at the death of her soon to be ex-husband would have helped finance some of the defendant’s travels, lives and movement in the future. There will be multiple witnesses who discuss that the defendant talked to people that Melani Boudreaux and her money would take care of them, that Melani Boudreaux and her money would help aid the group’s plans for the future, and fundamentally it is part of a common scheme or plan. It is far more probative than prejudicial; it is part and parcel. The other piece, just from logic, in terms of law enforcement involvement, the shooting at Mr Boudreaux is what actively got law enforcement paying attention, what actively got law enforcement looking for JJ and Tylee and it’s core to the presentation of many of the law enforcement’s assessments of evidence.
Judge: thank you Miss Smith. Mr Thomas the response from the defense?
Defense: Just so that I understand the State, is indicating that this is part of a common scheme or plan in getting rid of spouses, is part of the common scheme or plan Judge it seems like this is a stretch at best, we ask the court not to allow this evidence in, it doesn’t without further foundation through all of these other text messages and whatnot Mr Boudreaux can be called after some of these things come in to testify, but at this point I don’t think it’s appropriate to allow him to testify about these things without any more foundation.
State: Your honor, may I just briefly? This is a chicken or an egg thing, I guarantee you if the State offered those other items the defense would be saying it’s premature because we don’t know what happened, and so in reality we have the witness here, he had a relationship and the State is abiding by the previous rulings of the court, we brought it to your attention in camera, you’ve given us a ruling in limine and we are following that ruling.
Judge: I do agree it is a chicken and an egg thing as you mentioned, when looking at this evidence, the court has to consider rule 404b because it’s premised on what may be presented in court, generally it’s brought up outside the presence of the jury and also in advance of trial, the parties have complied with that procedurally and so we did have a closed hearing relating to this 404b issue back in February of this year and on February 22nd the court issued an oral ruling that as a preliminary matter I would allow the evidence, or not prohibit the evidence, under rule 404b, and also made findings related specifically to this particular witness and what is alleged to have occurred. I’ve considered whether or not the order of things should require more foundation before we go into it at this point but I don’t really see a better way other than to admonish and caution the State that at this point I’ll permit the 404b evidence to be admitted however at this stage of the proceedings there’s not really a record that goes into the common scheme or plan in the detail that you’ve indicated however there was a proffer made by the State at the previous ruling and again a proffer today that that evidence will be forthcoming so I’ll overrule the objection and allow the evidence but I guess the danger for the State there is if sufficient evidence does not come in later to support the allegations that take this outside of 404b then we may have an issue with the jury having heard this testimony. So the court will rely on the proffers made today and previously in overruling that objection and I’ll allow this line of questioning based on that and my prior finding made at that February 22nd ruling that was briefed and argued by the parties before.
