exhibit 2011-08-16 transcript gambrell refusing to admit evidence

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Page 175

IN THE CHANCERY COURT OF MARION COUNTY, MS

RAVEN SKYE BOYD PETITIONER

VS, NO. 2006-0136-G

MICHAEL T. BOYD RESPONDENT

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THE FOLLOWING IS A TRANSCRIPT OF PROCEEDINGS HELD ON AUGUST 16, 2011, BEFORE THE HONORABLE DEBORAH J. GAMBRELL, CHANCELLOR, STATE OF MISSISSIPPI

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REPORTED BY: Patsy Ainsworth Young, CSR

PATSY AINSWORTH, OFFICIAL COURT REPORTER

Direct - Wanda Phil l ips Page 244

1 year .

2 THE COURT: I have that down, wanted to

3 draw house, because cousin draws and you have the

suppl ies , bu t we ' ve got t o get to re l evance of the

5 termination. The Supreme Court has basically set

6 up the guidelines as to what it takes to terminate

7 parental rights, and that is what we need to stick

with .

9 MR. IGNATI EV: Your Honor, I am getting

10 there.

11 Q. What did Harley draw and write after she

12 received these art suppli es?

13 A. She drew pictures of what she said was

,. her dad and pictures of herself, pictures of the 15 house. She laid out the whole floor plan and she

16 had not been there in nearly three years. She was

17 able to lay the floor plan out. She drew the

,. singing deer. She sang the song that the Singing

19 deer sang, Sweet Home Alabama. She started about

20 dinner time and drew on that until a l most 10:30 at

21 night and I made her go to bed.

22 Q. Wha t else is contained in these

23 drawings?

24 A. She tal ked about having sex with her

25 daddy.

26 MS. BALDWI N: Object i on, Your Honor , and

27 move to strike unless that is produced or 2. something. There is no foundation.

29 THE COURT: That is drawn on a piece of


Direct - Wanda Phillips Page 245

1 paper?

2 THE WITNESS: I do have that here.

3 MS. BALDWIN: That has not been produced

4 to counsel.

5 THE COURT: Has that been produced?

6 MR. IGNATIEV: Your Honor, an electronic

7 copy was provided to the GAL. I was not able to

get that printed out.

THE COURT: What are we talking about?

10 THE WITNESS: I took a copy of it to the

11 district attorney, and the district attorney said

12 take it to counsel, and I took it to the GAL's

13 THE COURT: Is that what you took to the

14 district attorney down in Louisiana?

15 A. I have not taken nothing to anybody in

16 Louisiana.

17 THE COURT: When was that?

,. THE WITNESS: To Hal Kittrell. ,. THE COURT: When was that, ma'am? 20 THE WITNESS: The middle of July. I

21 took it to the GAL; I don't know if that's the GAL

22 or not.

23 MR. JOHNSON: Mrs. Phillips came to my

24 office one day when I was not present, with one of

25 the children, according to my staff, and had two

26 books that she wanted to go over with my

27 secretary.

2. THE COURT: Where are the children that

2. are in the middle of this?



1 MR. IGNATIEV: They are in school, Your

2 Honor.

3 THE COURT: They need to be here,

4 because obviously I have heard -- I have been

5 sitting here half the day and I have heard so many

6 different things that I could probably -- why

7 weren't the children brought here?

8 MR. IGNATIEV: Your Honor, they are both

9 under the age of ten, and the GAL said that he did

10 not feel it was appropriate to interview them due

11 to their suggestibility.

12 THE COURT: Based on what we are having

13 here, what you are putting before me, if everybody

14 else is interviewing them and making decisions,

15 and the person that has got to make the final

16 decision that he will get to see the children

17 MR . JOHNSON: I have not seen the books

18 that she is referencing.

19 . THE COURT: Whatever it is that you are

20 all trying to testify from needs to be marked for

21 identification purposes and then we don't have the

22 author of the documents and Mr. Kittrell's office

23 -- let's go on. What was the objection? Do we

24 have the drawings?

25 MR. IGNATIEV: We do have a copy of

26 them, Your Honor, I believe.

27 THE COURT: You need to try to -- do you

28 have them, Mr. Johnson?

'9 MR . JOHNSON : No, ma' am.



1 MS. BALDWIN: Neither have I , Your

2 Honor.

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THE COURT: Wel l , why are we trying a

case when everything that is offered has not been

5 exchanged between the parties? You know that is

6 what the rules say.

7 MR. I GNATIEV: Your Honor, my

understanding was this was provided to the GAL and

at that point - - I apologize .

10 MS. BALDWIN: Your Honor, my

11 understanding is --

12 THE WITNESS : I took the granddaughter

13 and the book over to the GAL's office, and I took ,. a thumb drive and put i t in his computer and it is 15 on the desktop of the secretary's computer.

16 THE COURT: That may be fine, but based

17 on the rul es of law that we have to go by between

,. attorneys and judges and all of these people

,. sitting out there - - where is my rule book? There

20 is a book that tells lawyers that when you plan to

21 offer something, you have to give it to the other 22 side prior to.

23 The GAL is an investigatory arm of the

2. Cour t that has been appointed pursuant to this

25 law; this case that has been attached to this 26 Louisiana petition. Do you follow me? 27 THE WITNESS: Yes, ma'am . I agree. 2. THE COURT: He is not involved in this.

2. There are rules that say if Ms . Baldwin plans to



1 offer something to help her client or to hurt

2 Mr. Ignatiev's client, it has to be given. Do you

3 follow me?

4 THE WITNESS: I do follow you. I have

S been researching the law; I know that is supposed

6 to happen.

7 THE COURT: Well, it didn't and it has

not. So the Court now has to decide what to do

9 with this evidence.

10 MR. IGNATIEV: I apologize, Your Honor,

11 the procedural posture of this case has been all

12 screwed up and I have not been on the ball .

13 THE COURT: I agree, but can you give it

14 to her now, and we can go on and keep testifying

lS and come back to it later.

16 MS. BALDWIN: Your Honor, I would make

17 an offer of proof on that document, pictures.

,. Certainly an objection . But I would like to make

19 an offer of proof, that Wanda Phillips took that

20 to Hal Kittrell and discussed the matter with Hal

21 Kittrell, and there was no proceeding. Also Jim

22 Johnson -- everyone was somewhat aware of these

23 pictures . As you say, where they came from, the

24 author is not here, the validity, the undue

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influence it may have caused them, my

understanding is that Mrs. Wanda Phillips

27 this is of course my offer of proof -- Ms.

and

2. Phillips actually had Harley do a good daddy book

29 and a bad daddy book while --


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Direct - Wanda Phillips

THE COURT: Where are the good daddy

books and bad daddy books?

Page 249

MS. BALDWIN: She has got them; I have

heard about them; I have not seen them.

THE COURT: Can I have the good daddy

books and the bad daddy books?

books?

daughter.

THE WITNESS: I don't have them.

THE COURT: Who has the good daddy

THE WITNESS: I gave them to my

THE COURT: Where are they?

RAVEN MAURER: I did n o t bring the

originals with me because it seems l ike the

originals--

THE WITNESS: We have had evidence

disappear.

THE COURT: Did you give that to

Mr. Kittrell?

MS. BALDWIN: I don't know, Your Honor;

. I have just heard about all of this stuff.

THE COURT: Did you give the good daddy

books / bad daddy books to Mr. Kittrell?

THE WITNESS: On the thumb drive,

electronic into the computer.

MS. BALDWIN: They will proceed in that

action --

THE COURT: They are not going to if

they don't have an original document . That means



1 we don't have these things so we are not going to

2 listen to testimony if I don't have them.

3 MS. BALDWIN: That is what I would ask,

4 Your Honor.

5 THE COURT: I can't. The rules of

evidence say that I can't.

7 MR. IGNATIEV: We do have a copy here,

8 it's my understanding. THE COURT: That is what I asked ten

10 minutes ago. If you have got it, give each party

11 a copy and let me review it before I let anybody

12 testify.

13 MR. IGNATIEV: Excuse my client to go

14 and get it; she has got them.

15 THE COURT: Let me explain. A Court

,. needs all of the evidence before it to make

17 decisions; that is what all of you are so

18 eloquently telling me. But I don't have it, and

,. that is what I am here for today. Everything that

20 is planned to be offered should be here in this

21 courtroom. If you have gone to see the DA, I have

22 known Mr. Kittrell for years. And he is

23 fastidious with preparing cases for minor children

2. that have been abused, and he will go beyond the

25 call of duty to get everything. It should be

2. here; the authors of all the documents need to be

27 here, but they are not. So tell me what it is you

28 got before I release Mrs. Maurer to get them?

2' What else do you plan to offer that



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MR. IGNATIEV: Your Honor, that is the

only thing.

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THE COURT:

break and go forward.

try this .

We will take a two-minute

Y'all were not pr epared to

6 MS. BALDWIN: No, we were prepared; we

7 are prepared to go forward on this. We were not

provided all of the documents, and that is why I

9 keep objecting. 10 THE COURT: I understand. The laws of

11 this land do not allow you to do trial by ambush.

12 THE WITNESS: When she wanted to draw

13 the books 14 THE COURT: I can't take testimony. I

15 am in recess. And that would be testimony.

16 (Pause)

17 THE COURT: Mrs. Phillips may take the

,. stand again and y'all keep moving along.

19 MR . IGNATIEV: I believe Ms. Baldwin's

20 obj ection was

21 MS. BALDWIN: Yes, I have reviewed the

22 documents, and it appears to me without any

23 further consideration, that some of the documents

24 are art work, and there seems it was done by more

25 than one person. Those documents, they are

26 hearsay, Your Honor; they lack trustworthiness;

27 they are not relevant to this issue. I don't know

2. what any of that has to do with the issue before

29 the Court, which is termination of parental


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rights.

I woul d ask that t hey not be allowed.

Your Honor, for the record, they are dated on the

front, July 20, 2011 ; that just happens to be the

date of the last order in this case and that has

been a course of conduct with Ms. Raven and

Ms. Wanda in this case all along; they enter into

an agreed order; they agree to something ; t hey go

to Louisiana and file something to stop it; they

create or influence documents right before

visitation is to take place , and that has been the

case consistently. That is why we object to these

documents ; they were prepared on the very day the

temporary order was entered.

MR. IGNATIEV: Your Honor, my response

to that is, I know Ms. Baldwin has been arguing

that those things have all been agreed to. The

fact of the matter is except for one occasion, the

orders that have come, particul arly since t he

Court has been involved, have been agreed as to

form only.

After conference with the Court and

object ion raised by me on my client ' s behalf, as

far as this document goes, the fact of the matter

is that for purposes of authentication under the

rules of evidence, I don't believe a nine-year-old

can authenticate anything anyway .

THE COURT: For the purposes of the rules of evidence then, what would be your



1 position as to what the law says about the court

2 accepting into evidence drawings that are offered

3 by a third person, and the artist is not here. I

4 want to honestly hear what your understanding of

5 the rules is.

6 MR. IGNATIEV: Your Honor, I am bringing

7 this forward to show the state of mind and her

8 mother who are concerned only for the welfare of

9 Harley and Zoey, and this is what is being given

10 to them as information. This is what they have to

11 work with. I am showing that my client is not

12 acting out of some sort of irrational hatred of

13 her ex-husband.

14 THE COURT: The Court can, only because

15 of what the rules of evidence say about how those

16 documents should be verified, you can offer them

17 for identification purposes only, and let's just

18 move right along. I read Judge Thomas' order and

19 from looking at Judge Thomas' order, if the

20 children required continuing counseling, that was

21 supposed to take place. There is a GAL in place

22 that all items regarding anything that relates to

23 abuse, et cetera, should go through the GAL; and I

24 am concerned about that the parties may not

25 understand the GAL's purpose, and I thought that I

26 explained it . But you all understand that the

27 guardian ad litem is the investigatory arm of the

28 Court and takes no side as it relates to either 29 one of you all. Were you all aware of that? I am


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Direct - Wanda Phillips

THE COURT: You have not?

MR. JOHNSON: No, ma'am.

Page 256

THE COURT: They will be offered just

4 for identification only because nobody has been

5 privy to them before t oday. Let's move on. Mark

6 them for ID.

7 MS. BALDWIN: For the record, I object

8 on that.

9 THE COURT: Overruled. As it stands,

10 the Court has allowed several drawings that the

11 Court has not reviewed to be offered for

12 identification purposes only, even though no

13 predicate has been laid as to whose photographs

14 they are, when they were done, except they were

15 done July 20th. The Clerk is asking me, so she

16 can describe these documents . Are these drawings .

17 by one child or two, Mr. Ignatiev?

18 MR. IGNATIEV: Your Honor, that is what

19 I was going to get to and ask Mrs. Phillips.

20 THE COURT: Ask, please.

21 MR. IGNATIEV: (Continuing)

22 Q. Mrs. Phillips, were you present when

23 this was being done, the entire time when these

24 drawings were being made?

25 A. Sometimes I was in the washroom, and 26 sometimes I was in there making the bed, and

27 sometimes I was cooking. The house was locked.

28 No one was in the house but Harley and myself.

29 But I was not standing over her the entire time,



1 before the evidence was ever brought forward.

2 THE COURT: You are aware you cannot

3 have contact with judges or their staff regarding

4 contested litigation?

5 THE WITNESS: No, ma'am.

THE COURT: You can't. Like the judge 7 in Louisiana, those officers cannot get involved

with this. When you start making these calls and

have people send e-mails, all it does is protract

lO and bog down the court system because now that you

II all are raising the fact that you think there is a

l2 continuance, I am going to have to make this a

l3 part of the record, which means the Supreme Court

l4 and anybody else that looks at this now will see

l5 these notes and e-mailsthathavebeensent.It

,. really does make sense when all we have to do is

l7 do the case and deal with the law.

,. I have allowed those drawings to be

,. admitted even though the Mississippi Rules of

20 Evidence will say they are not documents that can

2l be offered into evidence, but they are there for

22 identification, and let's move on.

23 The question was, we don't have the good

2. book even though you knew as of 9:30 yesterday

25 there was a trial today?

26 THE WITNESS: It has got pictures or 27 brownies and cakes in it.

2. THE COURT: But you knew there was a

2. trial, and you didn't bring the good book.


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Direct - Wanda Phi ll i ps Page 262

THE WI TNESS : I didn't fee l like it was

relevant , and I didn ' t have the good book .

THE COURT: That t el l s me then, if t he

good book is not r elevant , the bad one is not.

Your witness ha s indica ted that it ' s not relevant

so neither will go i nto evidence . Let ' s move on .

Take that document back . I t ' s not g i v i ng the

court a good i dea of wha t is going on.

THE WITNESS: I misspoke. I do f eel

t ha t bo t h i s r e l evant. I do feel t hat both is

relevant, but I don ' t have the books. I didn ' t

fee l t hat i t appl ied t o the case because a l l it

had was pictures of cakes and brownies in it.

THE COURT : Let ' s move on .

MR. IGNATIEV: (Cont i nuing )

Q. What i ndicat ions do you have t hat

Michael has mistrea ted the gi rls since the trial

of September 2008?

A. What was t he trial i n September of 2008?

MR . IGNATIEV: Permission to treat as

hosti l e .

THE COURT: Go ahead.

Q. Wanda, what evi dence do you have that

Michael has mi streat ed your granddaughters since

september of 2008, f r om that time, back when Raven got custody back?

A. Nothing . I am sorry . I am so distracted. He has drank and drove with the girl s on numerous occasions.

PATSY AINSWORTH, OFFICI AL COURT REPORTER

exhibit 2011-08-16 transcript gambrell refusing to admit evidence

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