The Marissa Alexander defense team had a terrible, awful, very bad day yesterday in a pre-trial evidentiary hearing.  Much evidence that would have been favorable to their case was excluded by the trial judge, and the remaining evidence left undecided also seems unlikely to be admitted. The hearing was live-tweeted and reported on by Larry Hannan of the Florida Times-Union newspaper.

As has become in the norm in many of these cases a great deal of misinformation has been promulgated about this case in an effort to control the public narrative. We have previously debunked much of this in prior posts here at Legal Insurrection, most recently:  Three Weird Myths About Marissa Alexander That People Think Are True.

Alexander’s defense counsel Faith Gay and Bruce Zimet wished to exclude evidence of Marissa Alexander’s domestic assault of Rico Gray.  Alexander later pleaded guilty to criminal charges resulting from the case.  She also had her bail revoked, and as a result spent several years in jail.

The defense also sought to exclude all evidence recovered by police in the immediate aftermath of the shooting, including the hole in the wall behind Rico Gray’s head that puts the lie to the popular “warning shot” narrative.

Marissa Alexander bullet hole

Finally, the defense sought to admit evidence of alleged prior acts of violence by Rico Gray upon other women with whom he has had relationships.

Arguing against these motions were Assistant state attorneys London Kite and Richard Mantei.

By the time the hearing was finished, the state had won on the first two motions, and seemed highly likely to also win on the third.

Defense Seeks to Exclude All Evidence of Alexander’s December 2010 Attack On Gray: DENIED

The hearing opened with Defense counsel Gay requesting that all evidence of Alexander’s December 30, 2010 attack upon then-husband Rico Gray be excluded from the trial.  The state argued that this evidence was probative on the issue of whether Alexander was merely an innocent victim in the relationship, as she claimed, and also to rebut that she was in fear for her life from Gray.

Rico_Gray_Marissa_Alexander_continued_sex

Judge Daniel ruled that the state could not introduce evidence of the December attack on Gray in their case, but would be permitted to use evidence of the attack to rebut Alexander’s testimony in the defense case.

Defense Seeks to Exclude All Evidence From the Scene: DENIED

The defense then argued their motion to exclude all evidence collected from the scene of the shooting.  Officer Fred Caldwell, the first responder, took the stand.  Reporter Hannan reports that the defense argued the police did not have any right to search the home because Alexander had not given them permission to do so (although they did obtain permission from Gray).  The police did not obtain a warrant, as such is unnecessary if lawful authorization is obtained.  There seems to be some dispute as to whose home it actually was.  The defense argued that it was Alexander’s home, not Gray’s, so only Alexander could lawfully authorize a search absent a warrant.  The state argued in response that regardless of whether Gray was in fact authorized to allow the search, the officers were permitted to rely upon his apparent authority to do so, given the totality of the circumstances.

Judge Daniel denied the motion to suppress the evidence from the scene, finding that the police  had a reasonable belief that they had been authorized to conduct the search.

Defense Seeks to Admit Alleged Prior Acts of Domestic Violence by Gray: FAVORS PROSECUTION

Defense counsel Gay then argued that evidence of Gray’s prior acts of violence against women with whom he had a relationship should be admissible, as it goes to his credibility.  She argued that Gray had an extensive history of controlling women in his life through fear of and actual violence.

In terms of Gray’s actual criminal history, he has twice pleaded no contest to domestic violence:  once in 1994, 16 years before Alexander shot at him, with the victim being his own brother, and again in 2006, this time against a female victim. Neither case was sufficiently serious to result in jail time.  Gray was also arrested for domestic violence in 2009, involving Marissa Alexander, but charges in that case were dropped.  (In contrast, as mentioned above, Alexander pleaded guilty to domestic violence against Gray in December 2010.)

The defense sought to augment this record of domestic violence, however, with the testimony of several women with whom Gray has had prior relationships. They claimed that Gray had a long history of initiating acts of violence against women, then calling the police and claiming that in fact he was the victim.  In one instance, the defense claims, Gray actually injured himself to fabricate evidence of violence against him. They also claimed that he had a history of inducing children witnesses to lie in his favor about these instances.  This last is particularly important to the defense, because of the devastating effect of the child witnesses testimony at Alexander’s first trial (“I though I was going to die.”).

Judge Daniel expressed considerable skepticism that any of this was relevant to the case at hand.

Evidence_of_Gray_violence_seems_not_relevant

Prosecutor Mantei countered that for these alleged prior acts of Gray’s domestic violence to be admissible as evidence of Alexander’s reasonable fear at the time she shot at Gray and his minor child it is necessary that Alexander had been aware of them at the time.  The defense has previously conceded that Alexander was not aware of Gray’s alleged acts of prior violence at the time she fired a bullet past his head.

Mantei is on solid legal ground here.  As noted in Munoz v. State, 45 So.3d 954 (FL Ct. App. 2010):

The purpose of specific acts evidence in a self-defense case is to demonstrate the reasonableness of the defendant’s fear at the time of the incident. Because the defendant’s state of mind is at issue, before the defendant may introduce specific acts allegedly committed by the victim, he must show that he had prior knowledge of these acts.

For purposes of this pre-trial evidentiary hearing, Judge Daniel allowed the defense to call its three female witnesses.

First up was Shartricia Anderson, a former girlfriend of Gray’s and the mother of one of his children.  She testified that on one occasion Gray struck her, then stabbed himself with a fork and convinced their child to tell the police that Anderson had stabbed him.  She also claimed that he once gave her an “abusive bearhug.” Those were the only two acts of domestic violence she alleged Gray committed.

On cross Prosecutor Kite alleged that Anderson had previously sworn a deposition denying that Gray had ever hurt her, and that until very recently she had always denied any abuse by Gray. He also alleged that she had lied under oath regarding an injunction she obtained against both Gray and Gray’s then-wife.  Anderson repeatedly denied Kite’s allegations of lying, obliging Kite to introduce documentary proof of the perjury.  At that point Anderson reluctantly conceded that she had, indeed, lied under oath.

Next up was Rico Gray’s ex-wife, the mother of the child standing beside Gray when Alexander fired a bullet past his head.  She testified that Gray once locked her in a closet for five hours. She also alleged abuse at his hands while she was pregnant with their child.  She also alleged that he struck her in the face, and once knocked her unconscious by striking her in the back of the head with a handgun. She further allege he broke her nose in 2000 or 2001, once threw a chair at her car while she and children were in it.  She testified that at first she had been mad at Marissa Alexander, believing that Alexander had fired a shot at her son. She now “understands” (mistakenly, of course) that this was not the case, and so she was no longer angry at Alexander.

Finally, the defense called Rico Gray as a hostile witness.  Defense counsel Zimet began asking Gray about his background, leading to an objection by the State and an immediate sidebar.  Reporter Hannah perceived from Judge Healey’s facial expression that he was unhappy with the defense.

Judge_Healey_unhappy_with_defense

Gray conceded he’d once had a violent confrontation with his brother (back in 1996, to which he pleaded no contest, as noted above), but that this was the only family violence he’d ever engaged in.  Gray outright denied ever beating Alexander or any of his wives or girlfriends.  When shown the relevant documents Gray also conceded his 2006 no contest plea to domestic violence against one of the mother’s of his other children.  He received probation in that case, and apparently was compelled to take part in anger management classes.  Gray also conceded his arrest on domestic violence charges in 2009, for acts against Alexander, but charges in the case were dropped.

The defense then asked Gray at length about a series of texts he had sent to the various women who might testify about him abusing them, purportedly to discourage them from doing so.  Gray claimed to have no clear recollection of any of them, and with respect to several texts denied outright sending them.

At this point the State objected that the line of questioning had devolved into an effort to impeach Gray personally, and Judge Healey agreed the defense had gone beyond the scope of the hearing.

The defense then introduced into evidence the deposition Gray gave shortly after the shooting incident, in which he stated that he had struck Alexander in the mouth.  Gray had recanted that deposition shortly after making it, and has since consistently conceded that the deposition was false.  He repeated that concession again in yesterday’s hearing.

State Attorney Mantei responded that none of these alleged acts of abuse (excepting the 2009 event) even involved Alexander, that the alleged acts took place many years prior to the shooting event, and (perhaps most decisive) that Alexander has conceded that she had no knowledge of them at the time she fired at Gray.  Mantei cited an appellate court decision (perhaps Munoz, quoted above) cautioning against allowing such evidence in.

Judge Daniel seemed amenable to the State’s position, noting that given that Alexander had no knowledge of these alleged acts of abuse at the time, it could not have informed the reasonableness of her fear when she fired at Gray.

Gray_intent_irrelevant

The hearing wrapped up without Judge Daniel issuing a decision on this last motion to admit Gray’s alleged history of domestic abuse against women other than Alexander, but it certainly does not appear that he was favorably inclined towards the defense on the issue.

Alexander Re-Trial Set for December

Marissa Alexander’s re-trial is scheduled to begin in December.  She faces, of course, a mandatory minimum 60 years in prison under Florida’s “10-20-Life” law.

Be sure to keep your eyes here at Legal Insurrection for what I expect to be full-time, minute-by-minute, live coverage.

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.