IN CAMERA HEARING IN THE AFTERNOON
by Marty Carlson
The afternoon session started with the judge in chambers reviewing John Evers personnel file and that took approximately one hour. The judge took the bench she stated there is “absolutely nothing” to disclose in the personnel file. And nothing more was said about it.
They then went back to Percy Martinez’s motion to been gone through and he did not state which number it was, The way they were talking it was obvious there were talking about the perjury charge being integrated in the homicide and conspiracy charges, this was in regard to Frank Carson only. Percy Martinez argued the perjury charge from the fair political practices commission, and the form 700 omission, that the cases are not intertwined. The alleged homicide in 2012 has nothing to do with the form 700 that was filled out in 2014. There is no relevance between the two.
Percy Martinez stated it would be a ‘spill over” effect with the two when the homicide evidence is not equivalent for the perjury charge and would be prejudicial to a jury, as it is a total different category and type of a crime. It would prejudice the jury with that kind of charge. There asking the court to sever count four, the perjury charge.
Marlisa Ferreira stated that count #4 is part of the charge of the obstruction. She stated not a lot of time would be spent on the charge was only one maybe two witnesses. The obstruction charges for Frank Carson where he used his status and relationship with friends to his advantage. The steps that Frank Carson took in the homicide charges are the same type of steps he took with the perjury charges.
Marlisa Ferreira stated there is no prejudice to Frank Carson or any other defendants in this case.
Percy Martinez argued and reading the information of the charges against Frank Carson, it appears the district attorney is trying to prejudice the jury, in the form 700 is a non-properly filled out form and that does not relate the same type of crime as obstruction of justice.
Marlisa Ferreira stated it is the same principle of state of mind, for an example of a burglar goes into a house then commits a homicide in the residence. She stated it’s the same concept of the homicide in the obstruction in the form 700 charge.
Percy Martinez stated that the DAs argument is seriously flawed where he is nowhere means anything like a homicide charge for comparison to an omission on a political form. Failing to fill out a political form properly is totally different than a homicide charge.
Marlisa Ferreira says failing to report assets is a false statement and he gives to dishonesty and state of mind of the defendant.
Judge Zuniga stated the in this case there is no comparison of the perjury count motive and is not relevant. If the obstruction was about elections maybe, but in this case, it does not apply. The run for DA was never argued in the overt act. Is not the same class of crimes. Judge Zuniga dated there is a prejudicial effect when a perjury charge of this type excluded in a homicide case. A juror could be confused and develop a bias.
Melissa Ferreira then requested that the perjury charge be tried first prior to the homicide, in my opinion to develop that same confusion and bias the judge was just talking about. The judge Zuniga stated the homicide case goes first.
At this time, it sounded like they were done with motions and they started going over some evidence and statements that they wanted admitted. Marlisa Ferreira started giving bate stamp numbers, but I was not sure exactly what they were talking about, but it appeared to be text messages between Georgia DeFilippo and her daughters Christine and Dana.
Marlisa Ferreira stated it shows a mindset Frank Carson is in, or starting to have with the problems of theft containers and his buildings during Halloween. I believe this was about six months prior to the alleged homicide.
Percy Martinez argued these are not Frank Carson tax the are other people and does not show anything about Frank Carson.
Marlisa Ferreira said the Frank Carson incidents on his property go back to 2003 with the first incident in 2009 with another subject got arrested for grand theft and apparently there was two others arrested in 2009. He also noted that Mike Cooley moved into the house on Lander, right behind Carson’s property, in either 2010 four 2011.
Judge Zuniga stated is problematic for state of mind that the statements are speculation especially during the night of Halloween. Also, the stated it was raining and dark on the street in the text. He said not relevant and was not going to allow.
They continued on with Marlisa Ferreira giving more bate stamps.
Percy Martinez argued saying entries are not complete and apparently, they are a response from an earlier phone call for the stated “did you close it”? They also stated Frank will be out tonight and will be armed with a gun. These told Christine to stay in the house. It was unknown previous messages that led to these messages.
Marlisa Ferreira stated there was no prior tax these messages there was possibly a phone call, and will have Art Hively follow-up confirm.
The next one they were talking about gave a date of February 6 of 2011, and they were a group tech between Georgia DeFilippo and her daughters Christine and Dana. Marlisa Ferreira agreed that some of these texts may be irrelevant, but there was conversation about one of them wearing dark clothing and keeping an eye on the back.
Percy Martinez argued that is Georgia DeFilippo state of mind not Frank Carson.
Matt MDA stated that Georgia DeFilippo is dealing with issues of theft and that is relevant to be discussed over the next year in trial. The judge rolled her eyes with that one.
Percy Martinez stated the conversation was referring to the stolen property that were found at the antique store, then found the fence that was broken that they were not able to fix at that time because it was the weekend. They were concerned about trespassing and that’s is all this conversation was about it was about concern of people coming back that had been there before.
Marlisa Ferreira stated is relevant law enforcement first came to the Frank Carson property and took a burglar report at that property. Then there was an altercation between Mike Cooley and Frank Carson.
Percy Martinez argued it was nothing more than a concern by Georgia DeFilippo about her daughter. It has nothing to do with Frank Carson state of mind.
Marlisa Ferreira stated it shows later action by Frank Carson, like the motion sensors and using Christine DeFilippo for security.
Percy Martinez argued it’s not state of mind for Frank Carson, but the three individuals involved in that conversation. He also cited judge Simmons rules of evidence book and stated state of mind of other people is not applicable.
Marlisa Ferreira stated all messages relate to conduct.
Again, Percy repeated the comments that Dana Christine are making are not Frank Carson state of mind not admissible hearsay.
Judge Zuniga stated the section cited in justice Simmons evidence rule book is not relevant but read another section and state that the issue is for a jury to decide. Some tax between Georgia DeFilippo talk about how it spooky out there obviously do not have any state of mind concerning and Carson. There were one or two sections that were allowed the rest stricken by judge Zuniga.
That was the end of the day will be back in court 9:00am tomorrow.