Theater trial blog: Day 33
Allison Sylte
5:36 p.m. MDT June 17, 2015
(Photo: KUSA)
5:36 p.m.: Judge Carlos Samour tries to go into recess for the night, but Defense Attorney Katherine Spengler comes to ask about an argument she intends to make about the Hotmail exhibits, claiming that they’re cumulative.
Samour says they’ll take up the issue during the morning break.
Court goes into recess.
5:34 p.m.: Brauchler says the fact that Moser was in the hospital from August 2012 to December 2013 is relevant, because it shows the extent of her injuries.
As for the list of things Ashley Moser has had to relearn, Brauchler said it’s important because it speaks to the extent of her injury.
“The funeral part – I’d love for the jury to hear that, maybe someday they will, and the falling down, but I think we’re getting into the area of 403,” Brauchler said.
Brauchler said he thinks nerve pain should be admissible, since it’s not unfairly prejudicial.
Samour asks Brauchler about showing a photograph of Veronica Moser-Sullivan.
“Honestly, it is inexplicable to me that we can go through the testimony of this mother and not show the picture of her daughter, have her identity that daughter, and not ask her if she’s seen her daughter again,” Brauchler said. “That can’t be unfairly prejudicial.”
Samour asks Brady if she has anything to add.
“About the picture your honor, I want to ask ‘what is the relevance of that?’” Brady asked. “I think the point of that is that is to make Ashley cry, as would every mother!”
Brady says it’s unnecessarily prejudicial, and exists only to make people sad, to show a heartbreaking image.
“I see no relevance. I get that you would want to do that,” Brady said.
“Both parties believe it’s an easy decision, but both parties come out different ways,” Samour responds.
Samour will consider the arguments overnight.
Prosecutor Rich Orman asks Judge Carlos Samour about two pieces of denied evidence.
Defense attorney Rebecca Higgs mentions how the court offered her the chance to object to Feinstein’s testimony.
“I’ve indicted that part of my reason for objecting to his testimony was the Eight Amendment,” Higgs said.
Higgs said she has a problem with Brauchler asking Feinstein about his violence risk assessment in such detail.
“I don’t think it is necessary for this testimony,” Higgs said, adding that she wanted to make the record clear.
Prosecutor George Brauchler responds that all of the questions have been to have him explain why he did what he did in terms of asking questions and making decisions.
“There has been nothing gratuitous in a single question that I’ve asked,” Brauchler said.
Samour says he agrees with Brauchler, and will uphold the ruling he made at the fence.
“Ms. Higgs didn’t add anything to the objection in terms of a legal ground. She just made it more emphatic,” Samour said.
Samour says there was nothing improper about Feinstein’s testimony so far.
Samour says both parties went into everything yesterday with Dr. Fenton, and that it would be unfair to not be allowed to address the same thing with another witness.
5:24 p.m.: “I think Ashley Moser represents a unique witness in this trial,” Prosecutor George Brauchler responds. “Ms. Moser is not only a perceiving witness. She was one that suffered a significant injury, and also was the parent of one of the defendant’s victims in this case.”
Brauchler says it’s important to contextualize why Ashley Moser and her daughter, Veronica Moser-Sullivan were in the theater that night.
He adds that he agrees with Brady that killing a child is an emotional part of a case. But it happened, and you can’t minimize that emotional evidence.
Brauchler says allowing Moser to say why she wouldn’t allow Moser-Sullivan to sit in her lap is significant.
“It puts into perspective for jurors what was going on, why she ended up being in that seat by herself,” Brauchler said.
For the next objection about Ashley asking whether or not Veronica was breathing, Brauchler says it was a present-sense observation.
“I think it goes to that moment, when the only thoughts when she was on top of her daughter was ‘Is she breathing?’” Brauchler said.
Brauchler says he has no problems limiting hearsay statements, though he concedes they might be excited utterances.
As to the next objection, Brauchler says Moser’s revelation that she can’t move speaks to her injuries.
Brauchler says the fact that Moser’s pants fell down as they were taking her out of the theater is just a fact. It’s not prejudicial, Brauchler said. It’s just what happened.
Brauchler says the fact that Moser’s mother told her they were taking care of Veronica is hearsay. As for Moser finding out her daughter died on Sunday, Brauchler says it’s relevant.
“I mean, she finds out at some point that her daughter is dead …” Brauchler said. “The fact she lost her unborn baby. This is no different than being told your bone is broken.”
Brauchler adds that people don’t know it because they’ve seen it. They know it because they’ve been told about their injuries by doctors.
The fact that Moser still uses oxygen at night goes to her injury, Brauchler said.
“Certainly, they have to know that she lost part of her lung and the consequences of it … is a measure of the injury that the defendant inflicted, “Brauchler said.
5:16 p.m.: Another point of contention, Brady says, is Ashley Moser talking about being told she lost her unborn baby. Brady calls this hearsay.
Brady also says she objects to Moser saying they had to remove the upper lobe of one of her lungs – forcing her to use oxygen at night. She objects to this under rules 401 and 403.
Another concern for Brady is Moser testifying that she still has bullet fragments in her lung and spinal cord. She cites rules 401 and 403.
Brady says she objects to Moser saying she had to stay at Craig Rehabilitation Center from August 2012 to December 2013. She again cites rules 401 and 403.
Next, Brady says she objects to a string of things Moser said she had to relearn how to do: how to use a spoon, sit, transfer from a wheelchair to a bed, how to do quad coughs to get fluid out of her lungs and throat, how to make a sandwich, use the restroom, bathe and dress herself and about physical therapy.
Brady says Moser has fallen since the shooting, and has had subsequent infections. In addition, Brady objects to Moser mentioning that they had to delay Veronica’s funeral until a time when Ashley could be more involved.
Brady says the defense also objects to showing a photo of Veronica Moser-Sullivan, and asking her mother if she ever saw her alive again.
“The court knows that the death of a child strikes a chord for a lot of the jurors, we’re not disputing Veronica’s death,” Brady said, calling Moser’s testimony “unduly prejudicial.”
5:10 p.m.: The attorneys discuss their objections to planned witness Ashley Moser’s testimony ahead of Friday. Moser’s daughter, 6-year-old Veronica Moser-Sullivan, was the youngest person killed in the shooter.
Moser was paralyzed in the attack, and had a miscarriage in the car.
Defense attorney Tamara Brady says she’ll object to testimony from Moser saying she dropped Veronica off at a daycare the afternoon of the shooting so she can have an ultrasound.
Brady also has concerns Moser will say she was excited about the new baby, and wanted to celebrate. She initially thought the Batman movie would be a cartoon, but then got worried Veronica would be scared.
Brady’s objections deal with rule 401 and 403.
Another one of her objections deals with Veronica’s desire to sit on Ashley Moser’s lap during the movie.
Brady also says she has a problem with testimony saying that Ashley fell on top of Veronica – namely, her question to the babysitter about whether Veronica was breathing.
The next part of the testimony Brady had an issue with was the statement that Ashley Moser said she couldn’t move.
This is again under rules 401 and 403.
Another point of contention was Ashley talking about her hospital visit.
Brady says she also objects to Ashley Moser mentioning asking her mother if Veronica was alright, and later finding out that Veronica had died.
5 p.m.: Judge Carlos Samour dismisses the jury for the day. He gives them his admonishments: mainly, that they can't talk about the case with each other, or other people. They also can't have contact with the jurors who have been released.
4:58 p.m.: Brauchler asks Feinstein to describe his June 11 meeting with the defendant. Feinstein said the defendant was dressed more or less the same, and presented in the same way as he always did. The defense objects, and asks to approach the bench.
4:57 p.m.: “Did he ever tell you ‘help me get rid of these homicidal thoughts?’” Brauchler asked.
“No,” Feinstein responded.
He says the defendant came because of his anxiety and trouble in social situations.
Feinstein said he recommended that the defendant take an anti-psychotic, since he might be having a nervous breakdown.
Next, Feinstein said he talked to the defendant about his school performance. The defendant said he wasn’t finding a good fit with his lab, and that he was spending a lot of time playing video games instead of studying.
When asked why he wasn’t studying more, the defendant said he had it covered, and that he was doing an adequate preparation.
During the May 31 session, Feinstein and Fenton asked the defendant to come back, so they could make a new treatment plan.
The defendant agrees – something they thought was a good sign.
Brauchler asks Feinstein if he did anything between the May 31 meeting and June 11. He says he spoke to Dr. Fenton about the defendant.
4:47 p.m.: The objection is overruled. Brauchler asks Feinstein about violence and suicide risk assessment tool he uses. This has rating elements in regards to violent ideation. The next element deals with a past history of violence (since this is an indicator of future violence). The other elements deal with suicide risk, and the level of care the person needs.
Higgs has another objection and asks to approach. Samour says the objection is noted, and they can discuss it again after the break.
Feinstein said there were no incidents of prior violence in the shooter's life. He also said he had no specific targets or plans -- only that he hated humanity.
Brauchler asks Feinstein if the defendant ever mentioned hallucinations.
"No," Feinstein responds.
Brauchler asks Feinstein if the defendant ever mentioned his efforts to buy weapons, a cellphone stun gun or folding knife.
"No," Feinstein said. "I'd love to have that information. That's a key part of making an evaluation."
4:45 p.m.: Brauchler asks Feinstein if he characteristics the defendant’s belief as having a nihilistic view of the world.
“This led me to begin thinking about a violence risk assessment,” Feinstein said.
Feinstein talks about his system for assessing violence and suicide risk. The defense objects, and asks to approach the bench.
4:43 p.m.: The defendant was on time to his May 31 meeting with Feinstein and Fenton. Feinstein said he was wearing khaki pants and a button down shirt.
“He looked like many graduate students,” Feinstein said, adding that this information is important in regards to “self-care’ issues.
Feinstein said he started the interview by asking the defendant why he was there. The defendant said Feinstein was there because Fenton asked him to be there. He said he thought the defendant’s use of the name “Fenton” rather than “Dr. Fenton” was devaluing.
Feinstein says the defendant immediately asked if he was going to lock him up.
“I asked him why would I need to lock him up, and he didn’t answer,” Feinstein said.
Feinstein called his a pretty normal reaction, since people tend to be afraid of psychiatrists.
Brauchler asks him how often the defendant was not verbally responsive to questions. Feinstein said probably 10 percent of the time, and he made it clear when he didn’t’ want to answer.
He was also not very forthcoming about his relationship or how he was doing in school.
“He was very restrictive about telling us about any of the people in his life,” Feinstein said. “I never knew who his girlfriend was, who his friends were.”
Feinstein said they had a discussion of why he hates humanity after the defendant talked about his reading materials.
“He said that he hated everybody, and he hated nobody,” Feinstein said. “He said his experience with people was that they were ‘sheeple.’”
4:36 p.m.: Feinstein will come back tomorrow afternoon for testimony, since questioning isn't expected to end today.
4:32 p.m.: “I’m not sure I’m following,” Judge Carlos Samour said of the defense’s objections.
He says Dr. Lynne Fenton testified yesterday, and that the defense was fine with admitting her medical records – in fact they asked for some of that information
Defense attorney Rebecca Higgs says the crux of their objection is the prosecution’s attempt to bolster Feinstein’s expertise when he’s not offered as an expert in this case.
Samour says talking about Feinstein’s history offers insights into what actions he did or didn’t take – it’s not bolstering his credentials, it’s adding context to them.
“I think I get the objections, but I don’t get why they’re being made,” Samour said, an edge to his voice.
4:27 p.m.: Feinstein led the defendant during the first meeting on May 31, 2012. Brauchler asks Feinstein about his goals for the session.
“Issue one was to give an opinion about a differential diagnosis for the patient,” Feinstein said, adding that he was also tasked with giving an opinion on the medications, looking at the therapeutic alliance with Dr. Fenton, assessing the defendant’s homicidal ideations and to try and a develop a relationship with the defendant to come up with a treatment plan.
Feinstein said it was important to assess the defendant’s therapeutic alliance with Dr. Fenton to see if the defendant would be better served with another therapist.
“Was this the first patient you’ve confronted that had a homicidal ideation?” Brauchler asked.
“No, there have been many,” Feinstein responded, adding that these patients had a variety of different diagnoses.
The defense objects to Brauchler’s line of questioning asking Feinstein to compare the defendant to other patients.
Judge Carlos Samour asks the jury to step out so they can have a conversation about these objections.
4:23 p.m.: Feinstein has been a licensed psychiatrist for 33 years. In 2012, Dr. Lynne Fenton asked him to provide a consultation during her therapy sessions with the defendant.
He participated in two sessions with the defendant: one on May 31, 2012 and one June 11, 2012.
Feinstein said he first heard about the defendant in April during a routine meeting with Fenton. He spoke to Fenton and social worker Margaret Roth about the case before meeting with the defendant.
4:18 p.m.: The defense calls Dr. Robert Feinstein to the stand. He is the other psychiatrist who saw the defendant (along with Dr. Lynne Fenton, who took the stand yesterday) before the shooting.
4:17 p.m.: After an almost 20-minute bench conference, the objections are overruled. The prosecution has no further questions. Ihmi is still under subpoena.
4:11 p.m.: The attorneys approach the bench for another lengthy conference with Judge Carlos Samour.
4 p.m.: Cary Ihmi, the custodian of records for CU Denver, is back on the stand. Prosecutor Rich Orman asks about more emails from CU accounts. She confirms those are from a public entity, and are an “accurate means of memorializing information.”
3:57 p.m.: Brauchler says he has one more question. Despite an objection from the defense, Judge Carlos Samour lets him answer it.
“During your time with the defendant, did you ever find him to be a hasty decision maker?” Brauchler asked.
“No, I found him to be very deliberate in his choices,” Garcia responded.
There are no further questions. Garcia is released from his subpoena.
3:52 p.m.: Ben Garcia, one of the defendant's classmates and friends, is back on the witness stand.
"He said school was very important to his life," Garcia said.
Brauchler asked if the defendant ever described or talked about anything related to human capitol or increasing his self-worth by killing people.
Garcia says no to every question.
The defendant also told Garcia he did not have hallucinations.
Brauchler asked Garcia if the defendant had ever indicated that he was amassing an arsenal of materials for his attack. Garcia said no.
"Was the defendant the same person in mid-May as he was in September when you met him?" Brauchler asks.
"Yes," Garcia responds.
Brauchler has no further questions.
3:50 p.m.: Neither the prosecution nor the defense wants to take any action in regards to this jury. Prosecutor George Brauchler commends the juror for being honest and forthcoming about what happened.
The rest of the jury is told to come back into the courtroom.
3:47 p.m.: Court is back in session. Juror 1,009 asks to come and speak to Judge Carlos Samour in the courtroom. She says while having lunch with a coworker, she mentioned how three jurors in the case were dismissed for texting. The juror said she wanted to let Samour know.
Samour asks her if she can still be fair and impartial, and shouldn't come to any assumptions from what she's heard. Samour asks her to step out of the courtroom.
3:23 p.m.: Judge Carlos Samour tells the jury to take their 20-minute afternoon break. Witness Ben Garcia is still on the stand. He is avoiding looking in the defendant's direction.
3:10 p.m.: The last G-Chat between the defendant and Garcia was in March. Garcia sent him a link about a paradox that he doesn’t remember.
“Good, because I don’t remember either,” Brauchler responds as a joke.
Garcia saw the defendant again shortly thereafter. After the defendant’s breakup with Gargi, Garcia confronted the defendant about his behavior after the breakup, which he thought was rude to Datta.
“He was not acknowledging that she existed at all, didn’t really seem to be affected at all,” Garcia said.
Copies of the G-Chats between Garcia and the defendant are distributed to the jurors. They are given a little bit of time to review those conversations.
3:08 p.m.: G-Chat conversations between the defendant and Ben Garcia are shown. These conversations were about doughnuts, his interest in a girl named Hillary and other casual topics.
Brauchler mentions a reference to how classes are going, and a conversation about the professors.
“Did you do that routinely?” Brauchler asked.
“I’d say that wasn’t uncommon,” Garcia said.
Garcia said overall, the classes went well, and the defendant was passing them.
“Did he like them?” Brauchler asked.
“I don’t think anyone laughed,” Garcia said, eliciting a small laugh.
Brauchler asks if there were any rotations the defendant spoke poorly of. Garcia said yes – his first or second rotation.
Another G-Chat discussed whether the defendant was going to take a neuroscience class with him. The defendant says “yes.”
One chat starts with “So, are you aware you tried to kill me last night?” – a joke Garcia said was an “outlandish way to start a random conversation.”
The conversation went back and forth about the defendant fake believing he was trying to kill him.
Next, Brauchler points to a conversation where the defendant said he was having delusions.
Garcia said he was trying to figure out what the defendant meant.
Brauchler points the conversation toward an interaction where Datta confronted the defendant about homicidal thoughts. Datta showed Garcia a G-Chat where the defendant said he wanted to kill people.
The defendant said he was going to seek psychiatric help.
3 p.m.: Brauchler asked Garcia if the defendant ever seemed different from November 2011 to May 2012. Garcia said no, and that the defendant was apparently doing well in class.
Brauchler asks the Garcia when the defendant broke up with his ex-girlfriend. He said it happened in January, and it coincided with a perceived anger in the defendant.
He says he doesn’t remember when the defendant and Datta cut off ties.
Garcia says the defendant cut off ties with him after his breakups with Datta, but started talking to him again when he and Datta started informally hanging out.
2:56 p.m.: Garcia said the defendant was much more comfortable talking to people he was familiar with, rather than people he didn’t know.
“He didn’t like going to bars. He went with us anyways,” Garcia said.
Brauchler asks Garcia if he has ever seen the defendant initiative friendship or conversation. Garcia said no.
Garcia says the defendant seemed angry after his breakup with Datta. He never really discussed his relationship with her.
Brauchler asked Garcia if he ever hung out with the defendant over Thanksgiving or Christmas. Garcia said he doesn’t know what the defendant did over winter break, but that they did have a Thanksgiving dinner together.
He says the defendant seemed a little bit angrier come January.
Garcia said the defendant seemed “outwardly hostile towards people.”
When pressed about what that means, Garcia said the defendant seemed “angry at the world around him.”
2:51 p.m.: The objection is overruled. Judge Carlos Samour gives the jury his same limiting instruction when it comes to conversations between the defendant and others, namely, that the other person’s statements are only meant for context.
2:44 p.m.: Garcia said he communicated with the defendant mainly through G-Chat and instant messages.
He and the defendant had similar cellphone covers that were similar but different colors. In the spring, Garcia said he dyed his hair red.
The prosecution moves to admit the G-Chat conversations between the defendant and Garcia into evidence.
The defense has multiple objections.
2:41 p.m.: Garcia said he considered himself a friend of the defendant. Brauchler asked Garcia if the defendant had other friends outside of their group.
Garcia said no.
Brauchler asks Garcia if he ever saw the defendant give any presentations. Garcia said he did – in May 2012, at the end of their neuroscience class.
There were 10 students in the class. Brauchler asked how the presentation was.
“I’d say it was a socially awkward presentation,” Garcia said, saying that the defendant seemed “uncomfortable.”
“Was that performance inconsistent with what you’ve expected?” Brauchler asked.
“Yes, it was very expected,” Garcia said.
He said the content was fine.
Garcia said he and the defendant talked about sports – particularly the San Diego Chargers –on occasion. There wasn’t much else that was too personal.
Brauchler asks Garcia when the defendant became involved with his ex-girlfriend, Gargi Datta. He said that started in October or November.
“Initially, she found him attractive and I teased her about it, and kind of teased her into asking him out,” Garcia said. “Just kind of teased her, and said if she wasn’t going to ask him out, I would.”
Garcia said the defendant and his girlfriend held hands in class sometimes, but that was it.
2:36 p.m.: Garcia first met the defendant at either the end of August or early September 2011. He says he last saw the defendant at the end of May 2012.
Garcia is studying computational biology – the same specialty as the defendant’s ex-girlfriend Gargi Datta.
He initially met the defendant in a required biology class for Ph.D students. Garcia says he, Datta and Timothy Tapscott first approached the defendant.
Garcia took Biological Basis of Neurological Disease with the defendant as well.
Brauchler asks Garcia about his first observations of the defendant.
“He just seemed very quiet,” Garcia said.
“Did he have a sense of humor?” Brauchler asked.
“He did have a sense of humor. He liked puns and things like that,” Garcia said.
After a while, Garcia and the defendant started hanging out outside of class. They went hiking at Dinosaur Ridge as a group, as well as play the board game Dominion.
Garcia sometimes went to the defendant’s apartment.
“The parts that I saw were clean. Very well upkept,” Garcia said. The last time he went to the apartment was in April 2012.
Garcia said they’d go out to dinner together and go see movies sometimes. In the theater, they saw “The Hunger Games” and “Sherlock Holmes” at the Century 16 theater. They picked that theater because it was close to his apartment.
2:30 p.m.: Witness Ben Garcia takes the stand. He is a Ph.D student at the University of Colorado. He remembers the defendant from his time at CU.
2:30 p.m.: Defense Attorney Rebecca Higgs asks Finger to specify when the Fundamentals of Neurobiology class occurred.
It started in December 2011 and ended at the end of March 2012. The defense asks Finger to confirm that he didn’t attend every class, since he was teaching it with two other people.
He was an instructor in the class in December and early January.
Higgs asks Finger to look at the syllabus from his class.
Finger taught the first class in December, as well as January 18, February 13 and February 17.
Higgs asks Finger how much of the class is spent with him just lecturing. Finger says it’s half lecture, half discussion.
“I would say [the defendant] was in the quiet half of the class,” Finger said, confirming that the shooter answered questions when called on. “In my observation of the class, he rarely volunteered information.”
Higgs asks Finger to confirm around 50 percent of students get As. Finger says yes.
“You also indicated on that last portion of the final exam, the anatomy portion, that was a simple, basic set of questions. Is that right?” Finger said.
“That’s correct,” Finger responds.
Seven of the eight students got a perfect score on that part of the test.
Finger confirms the defendant didn’t express interest in his labs.
During redirect examination, Brauchler asks Finger if the A was recommended by other professors. Finger says no.
Finger is released from his subpoena.
2:18 p.m.: The objection is sustained. Brauchler asks Finger about the exam that was part of his "A" grade.
It dealt with the brain anatomy.
"We had the expectation that all the students should pretty much get them all right," Finger said.
The defendant got all of them right.
Brauchler asks Finger if the defendant ever behaved in a different way than the other students.
"No, his behavior was entirely consistent with the rest of the class," Finger said.
Brauchler has no further questions.
The defense begins cross-examination.
2:15 p.m.: The attorneys approach the bench again.
2:08 p.m.: The attorneys walk away from the bench. Prosecutor George Brauchler takes a seat, as Finger continues to sit in the witness stand. Court is silent.
2 p.m.: The class went from December until March. Finger taught the class with two other professors.
The course dealt with how the brain works – the wiring, what the different parts do. There were two exams throughout the three-month class. Students were also asked to participate in class discussions, and present ideas from their readings.
An email Finger sent to the defendant indicates that he got an “A” in the course. The defense objects to admitting the email as evidence, citing hearsay and rule 403.
Defense Attorney Rebecca Higgs and Brauchler approach the bench.
1:53 p.m.: The prosecution calls witness Tom Finger to the stand. He is a neuroscience professor at the University of Colorado Medical School. In the spring of 2012, he was the co-director of the Fundamentals of Neurosciences.
Prosecutor George Brauchler points to the defendant and asks if Finger knows him.
“I wouldn’t recognize him with his current appearance, but I would say that James Holmes was in that class,” Finger said.
1:50 p.m.: Court is back in session. The jury is brought back into the courtroom.
12:32 p.m.: Prosecutor Lisa Teesch-Maguire comes to express that some victims and their families are upset there will be a three-day delay in the trial. She wants to make the record under the victim's rights act.
Judge Carlos Samour says it's not an exact science, and knowing when things will be done is not an exact science.
Samour also notes that they are ahead of schedule.
"At this point, we're on pace to finish hopefully in August -- and that's my goal," Samour said.
12:30 p.m.: Samour proposes an hour and 15 minute lunch break. The jury is asked to return at 1:45 p.m.
12:28 p.m.: A diagram of theater eight is submitted as evidence. Hicks said she saw smoke in the bottom right corner of the movie theater. She didn’t see anything else at all.
Hicks was taken to the University Hospital in the back of a police car. Another victim was in the front seat.
That night at the hospital, she got stitches. A bullet fragment was lodged in the left side of her face – later it was removed, in addition to one of her bottom teeth that was damaged.
After that, Hicks had a bone graft to replace some of the missing bone. She had braces put in to straighten out her bottom teeth in order to later receive implants.
The defense objects. It is overruled, since this relates to the nature and extent of the injuries.
Hicks got another bone graft and a gum graft for her bottom teeth. She got a dental implant and two crowns on the dental implant to replace her missing teeth.
She was 17 years old.
As it has done with other victims, the prosecution submits photos of Hicks’ injuries as evidence.
The defense objects to some of the images under 401 and 403 – as they have done in the past with photos of the victims’ injuries.
Judge Carlos Samour asks to look at them. He sustains the objection for all but two.
Those are published.
The first photo shows Hicks in a hospital bed with a bullet wound on her face. It was taken shortly after she arrived at the University Hospital.
Another photos shows the bullet wound on Hicks’ chin. It was taken after she washed off some of the dried blood.
The prosecution has no further questions. The defense also has no questions.
Hicks is released from her subpoena.
12:20 p.m.: Twenty minutes into the movie – during a scene involving gunfire and shooting --- she heard louder noises in the theater.
“At first we thought they were firecrackers or fireworks, but at that point we realized something was not right in the movie theater,” Hicks said.
She says she felt her face get hit on the right side. She cupped her hands to her face. One of her teeth was in her hands, as well as a lot of blood.
Hicks said she told her friend she had been injured, and they needed help. When they tried to leave the theater, someone told her to stay put, because they didn’t know where the shooter was.
So, Hicks and her friends tried to get out of the back of theater eight.
“We walked to the back exit in order to get somewhere safe, because the movie theater we were in obviously was not,” Hicks said.
“As we walked out of the movie theater complex, I saw –“ Hicks is interrupted by a defense objection. It is sustained.
Outside, Hicks said she saw many bloody victims outside.
They tried to go back into theater eight again, but it was a one-way door. They started knocking to get let back in. Someone opened the door, and they waited in the front of theater eight to get a hold of someone to help.
“I remember my friend Laurie pulling the fire alarm,” Hicks said. “A young man handed me his jacket in order to wipe off some of the blood on my hands and face.”
She says they were trying to call 911, and figure out how to leave the building.
12:16 p.m.: Witness McKayla Hicks takes the stand. She was in theater eight the night of July 19 and 20, 2012. She was shot in the jaw. She went to the movie with two of her friends – Laurie and Lisa.
12:10 p.m.: At long last, the bench conference ends. The objection is overruled, and the exhibit is admitted with redactions. Judge Carlos Samour gives them the instruction that they shouldn't infer anything from that.
He gives them another instruction in regards to the exhibit: "Any statements in these emails that are made by someone other than the defendant aren't being admitted for the truth of those statements."
They're for context instead, Samour says, cautioning the jury not to see those statements for any other purpose.
The prosecution will publish the exhibit in question tomorrow.
With that, Orman concludes his direct examination. The defense elects to cross-examine Ihmi.
Defense Attorney Katherine Spengler says she has a clarification question about one of the emails in the exhibit between the defendant and his mom.
Photos of the defendant in the mountains are attached to the email.
There is no redirect examination. The defense could call Ihmi again.
12:06 p.m.: The bench conference continues. It has now taken 25 minutes. Defense Attorney Katherine Spengler and Prosecutor Rich Orman are having an apparently heated conversation with Judge Carlos Samour, who appears to be gesturing as they apparently go over emails together.
11:54 a.m.: The bench conference continues. It has been around 15 minutes. Ihmi is still on the stand.
11:41 a.m.: Cary Ihmi received a request to retrieve emails associated with the defendant, who had recently dropped out of the university at the time of the shooting. The prosecution confirms that the emails were taken from the CU server, and came from the defendant.
The attorneys approach the bench after an objection from the defense.
11:38 a.m.: Witness Cary Ihmi takes the stand. She works for the University of Colorado as the litigation support manager. She is the records custodian for the CU system when they are requests for documents from courts.
11:35 a.m.: During redirect examination, the prosecution confirms with Mathis that the payments -- including one made on July 9, 2012 -- were not automatic, and that the defendant would've had to go online to make them.
During recross examination, the defense confirms that the last online payment of the credit card was on July 9, 2012.
The defense has no further questions. The jury does not have questions.
Mathis could be called again by the defense.
11:22 a.m.: Other transactions -- including the defendant's purchases at the Colorado Scientific Company and to Fandango.com -- are outlined. These occurred in July 2012.
There was a purchase at Best Buy on July 19.
The six final transactions on the records all have a "dash" or "negative" sign on them. Those are all a credit back to the account by the merchant. All of them are for after July 20, 2012.
Prosecutor Jacob Edson has no further questions for Mathis. The defense team does have cross-examination questions.
The defense asks Mathis how online payments work. They confirm you can set up automatic payments from your debit card.
The defense's line of questioning deals with setting up online payments for Xcel energy, etc ...
11:13 a.m.: Mathis says payments to the defendant's credit card were always paid on time and full. Mathis confirms the defendant used his credit card at Gander Mountain for more than $600, at Bass Pro Shops for $479 and at 24 Hour Fitness.
For the July 8, 2012 closing date, Mathis confirms the defendant used the credit card for more than $6,000 in purchases.
11:07 a.m.: Mathis confirms that the credit card was opened in 2006. The card had a limit of $2,500. The defendant made some of his payments online. He made one payment of $380 in April 2011.
11:04 a.m.: The jury is given individual copies of the defendant's credit card statements. The credit card itself is submitted as evidence.
11:01 a.m.: The defendant applied for a Mastercard via USAA. Mathis confirms that the records in front of her are for the defendant's credit card. He used it to buy many of the items associated with the shooting.
11 a.m.: Witness Diane Mathis takes the stand. She works for USAA Federal Savings Bank in San Antonio Texas. She is the custodian of records specialist.
10:57 a.m.: The jury is brought back into the courtroom.
10:54 a.m.: Judge Carlos Samour grants a request from the defense not to publicly release the defendant's bank records, since they contain sensitive information. He asks the attorneys to approach the bench.
10:44 a.m.: Court is back in session. Judge Carlos Samour says he'll keep a piece of evidence that the defense was objecting to. He says it is relevant and doesn't unnecessarily prejudice the jury.
10:21 a.m.: Court goes on recess.
10:17 a.m.: Outside of the presence of the jury, Defense Attorney Tamara Brady asks Judge Carlos Samour if they can contact the excused jurors.
The prosecution objects, calling it "grossly improper" to do so.
Samour denies the request, saying he has concerns about doing it in the middle of trial.
"In a way, this would provide attorneys a window into what's going on with the jury," Samour said. "And that's grossly improper."
Samour says the jurors know information about each other, and that the attorneys say talking to dismissed jurors can give them information about jurors still on the trial.
"I'm also worried about some of the concerns expressed by Mr. Orman about trying to get an idea about what attorneys should be doing differently or the same, trial strategy, that sort of thing," Samour said.
He ordered the attorneys on both side to not contact the jurors.
10:08 a.m.: The jury is released for a 20-minute morning break. Prosecutor Jacob Edson goes over some of the evidence he wants to present, including a surveillance video of the defendant at Gander Mountain and a redacted document showing his bank records.
10:05 a.m.: The objection is overruled. A photo of Young after her surgery is published to the jury. She's hooked up to multiple tubes.
The next photo shows where she was injured, and they're attempting to insert a breathing tube. She was shot in the right side of her neck.
A photo of the shrapnel in her neck is shown next.
There are still 30 pieces of shrapnel in her body: two in her heart, some in her neck and back. The ones in her liver, lung and kidney are there too.
Prosecutor Lisa Teesch-Maguire asks Young if she's going to have any more surgeries. The defense objections to this question. It is overruled.
Young says she'll have more surgery to remove the pellets.
She is released from her subpoena.
9:56 a.m.: Witness Alleen Young takes the stand. She was in theater nine the night of the shooting.
Young remembers a figure walking to the room. She says he reminded her of something from “Call of Duty.”
After he threw the canister, Young says she remembers seeing people shuffling or talking where the canister landed.
Young says she turned around to see what the fuss was about. She doesn’t remember anything else; she blacked out.
When she woke up, she saw chaos. She had landed into an aisle seat, and saw people running around.
Young says she couldn’t breathe. She couldn’t move.
“I had been shot in my neck and also my lung,” Young said. “I remember choking and drowning in my own blood.”
Her friend Stephanie stayed with her as she stayed on the ground. The movie was still playing – so it sounded like “distant gunfire” rather than something closer.
The nights came on. Her friend told her to be quiet.
While she was down on the ground, all she was thinking was that she had to breathe.
“It was such a struggle,” Young said.
A few police officers came to the exit, and said they had to get out.
Young says she still couldn’t really move, but she crawled over to the aisle and hobbled out.
Outside, she leaned on her friend Stephanie and hobbled out the exit.
9:45 a.m.: As the prosecution has with every victim, photos of Pourciau-Zoghbi's injuries are submitted as evidence. During a bench conference, Judge Carlos Samour agrees with a defense objection not to show two of them.
The others are published. One photo shows Pourciau-Zoghbi's knee after surgery. Next, a photo of the external fixator on Pourciau-Zoghbi's leg is shown. A photo of her knee before surgery in Baton Route is shown on the screen next.
The defendant, who usually stares forward, is seen looking at the pictures on the screen.
Prosecutor Lisa Teesch-Maguire asks Pourciau-Zoghbi how old she was the day of the shooting. She says she was 18.
She'll need many more surgeries in the future as a result of the injury, including a knee replacement.
Pourciau-Zoghbi is released from her subpoena.
9:40 a.m.: A police officer let Pourciau-Zoghbi call her parents and tell them what happened. Next, she was brought to another part of the theater where she was taken to the hospital in the back of a cop bar.
“The ambulances were full,” Pourciau-Zoghbi said.
An Indian couple was also in the police car, right behind her.
She was shot in her tibia plateau – it mushroomed inside, which caused an abrasion in her artery.
“The blood flow in my left knee was shut off by the time I went to the hospital,” Pourciau-Zoghbi said.
She’s had multiple repair surgeries since to help with the pain – seven in total.
Doctors placed a large plate and 10 screws in her leg after the shooting.
The defense objects to this statement. It’s overruled.
Another surgery to put stem cells in her knee didn’t help either, Pourciau-Zoghbi said, adding that she still feels pain.
9:36 a.m.: Pourciau-Zoghbi and her friend were seated near the back of the theater. About 15 minutes into the movie, she saw something go across the screen.
“At first I thought it was somebody messing around or just being silly, and then I started to hear gunshots,” Pourciau-Zoghbi said.
She says she pulled her friend Elizabeth down beside her.
“While we were on the floor, there was screaming and smoke and shots being fired,” she said.
Next, Pourciau-Zoghbi said she felt a pain in her left knee.
“It’s kind of funny – it felt like a big two-by-four just smacked me, and my whole entire body just absorbed the impact of it and moved me,” Pourciau-Zoghbi said.
Even though she thinks it sounds crazy, Pourciau-Zoghbi says she never felt the kind of peace like she did in that moment, when she thought she was going to die.
“I wasn’t scared in that moment,” she said.
After she was shot, she grabbed her friend Elizabeth’s hand and started praying out loud. She says they stayed on the ground.
After a pause in the shooting, Elizabeth got up and ran away. Pourciau-Zoghbi tried to run, but her knee buckled.
She says she tried to army crawl to the exit.
“I was scared I was going to get trampled,” she said. “But God sent someone to help me.”
A man picked up her and helped her get out of the theater. Her friend Elizabeth saw her, and they were reunited.
Pourciau-Zoghbi found herself laying down in the front of the theater. She was bleeding very badly.
“Even in the theater, I couldn’t see it, but I was feeling to see what happened, and how bad it was,” Pourciau-Zoghbi said.
Her knee was gushing blood, “kind of like a wine bottle.”
“I was trembling with pain. I wasn’t crying at that point though. I felt the same peace about me,” she said.
9:28 a.m.: The defense calls their next witness, Bonnie Kate Pourciau-Zoghbi, to the stand. She was traveling through Aurora the day of the shooting. She walks up to the witness stand with help from crutches.
9:21 a.m.: Almost 45 minutes after court resumes, the jury is brought back in. Judge Carlos Samour thanks them for their patience and informs them that they may be taking a couple of days off at the beginning of the week.
"I don't want to make it a certainty because something may come up, you never know," Samour said.
He says they'll take Monday, Tuesday and Wednesday off if all goes according to plan.
He also tells them that he has excused another juror, and that they shouldn't speculate or draw any inferences about why the juror was released.
Next, Samour gives them his limiting instruction when it comes to the notebook the defendant mailed to Dr. Lynne Fenton, who took the stand yesterday.
9:16 a.m.: The defense says it anticipates that Ashley Moser will be testifying soon. The defense says it anticipates a number of objections to her testimony, and that it might be easier to bring them up now rather than when she's on the stand.
Prosecutor George Brauchler says they intend to have her testify on Friday.
9:13 a.m.: Judge Carlos Samour brings Juror 267 into the courtroom. He tells her she is dismissed because she knows witness Maria Carbonell. Samour tells her he initially denied the defense's request to dismiss her, but that after a request yesterday, he realized she wasn't being particularly forthcoming or candid.
"I thank you for your service," Samour said.
The juror is not allowed to speak to the media as long as the case is pending.
9:11 a.m.: The defense had a request to dismiss Juror 267 after Maria Carbonell testified on May 6. The juror thought she knew Carbonell, who was the mother of a boy who went to the school she worked at. The juror said she didn’t initially recognize her because of glasses.
Samour says he now believes the juror wasn’t being particularly truthful, and grants the defense’s request, but denies the request made on May 6.
The defense’s request made yesterday is granted though, Samour said in a lengthy explanation of his decision.
8:56 a.m.: Though the prosecution could rest its case by Friday, the defense says it won't be ready until June 25. Judge Carlos Samour asks if everyone is willing to take Friday and Monday off. They agree.
He asks the attorneys to approach the bench.
8:40 a.m.: Court is back in session. Judge Carlos Samour says that he thinks the notebook should be subject to the same limiting instruction that he has given for expert witnesses.
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