R. v. Norris, 2018 NLSC 27

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Norris , 2018 NLSC 27 Date : February 12, 2018 Docket : 201601G6783 Her Majesty The Queen v. Anne Norris Restriction on Publication: Pursuant to subsection 648(1) and subsection 645(5) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. Before: Justice William H. Goodridge Edited Reasons for Judgment Given Orally Place of Hearing: St.

John’s, Newfoundland and Labrador Date of Hearing: February 1, 2018 Date of Oral Judgment: February 5, 2018 Appearances:

Iain R. W. Hollett and Jeffrey A. Summers Appearing on behalf of the Crown Rosellen Sullivan and Kennedy, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Harrer (SCC), [1995] 3 SCR 562; R. v. Jaw, 2009 SCC 42 , [2009] 3 S.C.R.26; R. v. Handy 2002 SCC 56 , [2002] 2 S.C.R. 908; R. v. Parsons (1996) (NL CA), 146 Nfld. & P.E.I.R.210. REASONS FOR JUDGMENT Out-of-court utterances by Accused VOIR DIRE Goodridge, J.: INTRODUCTION [1] Anne Norris is charged with first degree murder of Marcel Reardon. She admits that on May 9, 2016 she caused the death ofMr.

Reardon by hitting him in the head multiple times with a hammer. Ms. Norris maintains that she is not criminally responsible on thebasis of a mental disorder that rendered her incapable of appreciating the nature and quality of the act or knowing that it was wrong. [2] The Crown wishes to use out-of-court utterances made by Ms. Norris during its cross-examination of the Defence medicalexpert Dr. Nizar B. Ladha and during its cross-examination of Ms. Norris, should she elect to testify.

The Defence objects to theadmission of these utterances, primarily on the basis that there is limited probative value to any relevant issue, and there is significantprejudice to trial fairness. [3] The Crown maintains that these out-of-court utterances are relevant to Ms. Norris’s state of mind at the time of the killing ofMr. Reardon and relevant to her credibility. On the latter, the Crown will (through cross-examination) compare how Ms. Norris self-reported her state of mind to Dr. Ladha with utterances made to her cellmate during remand custody.

The Crown’s position is that theseutterances are admissible under the traditional exceptions to the hearsay rule --- admissions against interest --- or alternatively, admissibleunder the principled approach to hearsay exceptions. The statements are necessary from the Crown’s point of view because it cannotforce Ms. Norris to testify. The statements are reliable because of the context in which they were made, just loose chatter amongcellmates. Crown says that the utterances are probative of Ms.

Norris’ state of mind and credibility of her reporting on her state of mind.The Crown acknowledges that some of the statements are prejudicial, mostly in the sense that they expose negative character attributesof Ms. Norris. The Crown says that this type prejudice is not a big concern in a case where the accused has admitted causing the death.The concerns about prejudicial propensity reasoning by jurors in the typical ‘who-done-it’ type murder cases, are not in play herebecause identity is conceded. Ms.

Norris admits that she is the one who did the killing. [4] The Defence is objecting to admissibility of any of the utterances and puts the Crown to the burden of establishing that theout-of-court utterances are admissible as exceptions to the hearsay rule. The Defence argues that the out-of-court utterances are notadmissible because they are not relevant to an issue in dispute (the main issue being state of mind) and because they involve disclosure ofhighly prejudicial evidence of bad character reflecting negatively on Ms. Norris for reasons other than the charge she is now facing.

Onthe latter point, the Defence argues that even if some of these utterances are relevant to an issue and admissible under the exceptions tothe hearsay rule, the out-of-court utterances ought to be excluded in the interests of maintaining trial fairness. In the view of Defencecounsel, the probative value of the intercepted communications is outweighed by the prejudicial impact to trial fairness. ISSUE

The issue is whether these out of court utterances by Ms. Norris are admissible as exceptions to the hearsay rule. The relevance of theutterances to Ms. Norris’s state of mind, or credibility, is addressed as a threshold issue. If the statements are relevant then the principledapproach to admission of hearsay evidence is applied. BACKGROUND [5] The out-of-court utterances were all made by Ms. Norris in May 2017 while she was in custody awaiting trial. There was ajudicial authorization for one party consent interception of the communications. An inmate, an agent of the police, sharing a cell withMs.

Norris, wore a device that allowed recording of her conversations with Ms. Norris. The Crown says that these recordedconversations or utterances are relevant to Ms. Norris’s mental capacity to appreciate the nature and quality of her actions when Mr.Reardon was killed, and relevant to her mental capacity to know that what she did on that date was wrong. [6] The utterances were made about a year after the killing of Mr. Reardon. By that time Ms. Norris was aware of the Crown’scase. She was present throughout the preliminary inquiry and she had the full disclosure. The Defence note that there was nothing thatMs.

Norris stated in these intercepted conversations that she could not have known already from her presence at the preliminary inquiry. Some utterances expose Ms. Norris’ knowledge of what happened at the time of the killing, and include details of the events. Otherutterances are inconsistent with the actual events and are obviously part of fabricated stories that Ms. Norris was generating forentertainment purposes while trying to alleviate the boredom with her cellmate. [7] The statements are prejudicial in the sense that they reflect negatively on Ms. Norris’s character.

The context of several ofthe statements is Ms. Norris and her cellmate agreeing to tell fabricated stories to break boredom. The utterances, or in one case a rhyme,is presented as a form of entertainment and is not represented by either Ms. Norris or her cellmate to correspond to actual events. Part ofthis rhyme matches actual events, particularly the one that I call “Goodbye Marcel”.

Parts of that those utterances are obviously made upsolely for the sake of achieving a rhyme. [8] The Crown presented 16 separate recorded sessions which have been identified as numbers 1008, 1009, 1014A, 1016, 1017A,1018, 1043, 1047, 1048, 1010, 1012A, 1012B, 1014B, 1017B, 1022 and 1023. Approximately 90 minutes of audio has been entered asan exhibit here for the voir dire as well as the corresponding transcript. THE LAW [9] Evidence is not admissible unless it is relevant, and evidence is not admissible if it is subject to an exclusionary rule underlaw or policy.

Even if admissible on the basis that evidence has some relevance, there is judicial discretion to exclude evidence if itsadmission would result in an unfair trial. The judicial discretion allows me to exclude evidence where its probative value to an issue atstake is outweighed by its prejudicial effect, or if the effect of the admission would be to mislead the jury (see R. v. Harrer (SCC), [1995] 3 SCR 562). [10] In assessing probative value in this instance, it is necessary to determine the degree to which the evidence will prove the stateof mind of Ms. Norris at the time she caused the death of Mr.

Reardon, including how she self-reported her state of mind in her meetingswith Defence experts. How does her self-reporting of state of mind to Dr. Ladha square up with her utterances that she made to hercellmate? [11] The Defence argue that the statements made by Ms. Norris to her cellmate in May 2017 do not have probative value indetermining state of mind that existed a year previous when she caused the death of Mr. Reardon. I do not agree with that position. Themedical experts retained by Defence counsel considered Ms.

Norris’s after-the-fact self-reporting as part of the foundation for theiropinions on state of mind as of May 9, 2016. The Defence psychologist, Mr. Penney, referred to statements made to him by Ms. Norrisin December 2017, and the Defence psychiatrist referred to statements made to him by Ms. Norris in June and September 2016, andDecember 2017. The reliance by the medical experts on statements made by Ms. Norris after the fact to assist them in evaluating herstate of mind as of May 9, 2016, satisfies me that there is some probative value to the utterances made by Ms. Norris in May 2017.

If thedoctors took the statements after the fact to assess state of mind at the time of the offence, then candid statements made by Ms. Norris toher cellmate after the fact can also be relevant. [12] I also agree with the Crown that the utterances have relevance in comparing Ms.

Norris’s self-reporting of mental state to herphysicians for purposes of defence expert reports, and how should that compares with utterances made to her cellmate. [13] There can be instructions given to a jury in the final charge regarding the limited probative value of utterances made after thefact, in this case a year after the alleged offence, if appropriate, and depending how the evidence plays out. A limiting instruction canalso be given regarding the statements of Ms. Norris to the physicians. In R. v.

Jaw, 2009 SCC 42 , [2009] 3 S.C.R. 26 this sortof limiting instruction was given in context of jury reliance on untested hearsay evidence. [14] The prejudice to which Ms. Sullivan referred in her oral submissions will be that the jury could misinterpret the jovial nature ofMs. Norris’s stories or rhymes as evidence of her state of mind at the time of the offence. Ms. Sullivan argues that the jury mayimproperly use the evidence of the gruesome descriptions that Ms. Norris gave in these stories as propensity evidence of bad character.

This could create a risk of conviction for murder without fair consideration of the ‘not criminally responsible’ defence. It is the view ofDefence counsel that once the jury hears these intercepted communications, particularly the laughter in the rhymes and stories aboutmurder, that there would be no limiting instructions that that would undo the prejudice. [15] As I already stated, much of the intercepted communications are ‘made up’ stories created for purposes of amusement. Some ofthe utterances have low probative value to the issue of Ms.

Norris’s state of mind, but still have relevance on the credibility issue. Howdo these utterances, in particular the ease of Ms. Norris describing these type of crimes, square up with her alleged difficulty talkingabout the death of Mr. Reardon in her conversation with the psychologist, Mr. Penney? [16] I am allowing admission of parts of the utterances. Much will be excluded on the basis that it does not have relevance or that ithas an excessive prejudicial impact and low probative value. I have been guided by the R. v. Handy 2002 SCC 56 , [2002] 2

S.C.R. 908 decision that both counsel referred to in their oral submissions, particularly paragraphs 139 to 142 dealing with moralprejudice: 139 It is frequently mentioned that "prejudice" in this context is not the risk of conviction. It is, more properly, the risk of anunfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. Theevidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather thanproof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms. 140 The inflammatory nature of the ex-wife's evidence in this case cannot be doubted. It is, to the extent these things can be ranked,more reprehensible than the actual charge before the court. The jury would likely be more appalled by the pattern of domestic sexualabuse than by the alleged misconduct of an inebriated lout in a motel room on an isolated occasion. It may be noted that s. 718.2 of[page958] the Criminal Code, R.S.C. 1985, c.

C-46, reflects society's denunciation of spousal abuse by making such abuse anaggravating factor for the purposes of sentencing. 141 Some model studies of jury behaviour have put into question the effectiveness of the trial judge's instruction as to the limited usethat may be made of propensity evidence: R. L. Wissler and M. J. Saks, "On the Inefficacy of Limiting Instructions: When Jurors UsePrior Conviction Evidence to Decide on Guilt" (1985), 9 Law & Hum. Behav. 37, at p. 43; S. Lloyd-Bostock, "The Effects on Juries ofHearing About the Defendant's Previous Criminal Record: A Simulation Study", [2000] Crim.

L.R. 734, at p. 742; and K. L. Pickel,"Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help" (1995), 19 Law & Hum. Behav. 407. This isnot to undermine our belief in the ability of the jury to do its job, but it underlines the poisonous nature of propensity evidence, and theneed to maintain a high awareness of its potentially prejudicial effect. 142 To some extent, the prejudice could be contained by limiting the extent and nature of the ex-wife's evidence, even if some of itwere admitted, by a process analogous to that followed in R. v.

Corbett, (SCC), [1988] 1 S.C.R. 670, with respect tocriminal convictions. That approach was adopted here only to the limited extent that the fact of the respondent's jail time for two sexualassaults on other parties was suppressed by agreement of counsel. [17] These paragraphs guide me on prejudice side of the equation, the forbidden chain of reasoning --- to infer guilt from generaldisposition or propensity. In other words, because Ms.

Norris tells these outrageous stories she will be seen as a bad person, and risk isthat jurors want to see her behind bars for that reason, and not for the reason of the crime for which she is accused. ANALYSIS [18] I agree with the Crown that propensity reasoning is less a concern when identity is admitted, but the prejudice is still a factorsuch that fairness to Ms.

Norris, fairness to the trial process, fairness to her not criminally responsible defence, could be compromised ifall utterances are permitted before the jury. [19] I have particular concerns about the prejudice arising from the songs and stories declared by Ms. Norris (or implicit in thenature of the exchange) to be fictional stories. I have concern that these fictional stories could lead to moral or reasoning prejudice withthe jurors.

I do not agree that a limiting instruction would be effective if all of these utterances are admitted into evidence. [20] Although I am admitting parts of these utterances I find myself in substantial agreement with what Ms. Sullivan said inparagraph 23 of her brief: … the prejudicial effect of the intercepts on the issue of state of mind cannot be overstated. The danger is that the jury will misinterpretthe jovial nature and of the Applicant’s “stories” as evidence of her state of mind at the time of the offence.

Further, it is very possiblethat the jury will improperly use the evidence of the gruesome descriptions in the stories as either propensity evidence or evidence ofgeneral bad character. It is the submission of the Applicant that once the jury heard the intercepts, particularly the song and storiesabout murders, no limiting instruction would sufficiently undue that damage to the Applicant’s character. [21] There are exceptions, and I am going to go through these statements, each session at a time, to identify what can be used andwhat cannot be used.

The issue that I am focusing on is relevance to state of mind, but also, secondary, the issue of credibility issue. [22] I will be referring to the tabulated version (15 tabs) of the transcripts of the audio as filed on January 10, 2018. Session1008 [23] Part of this session has relevance to the issue of Ms. Norris’s state of mind. That is on the first page three-quarters of the waydown. The passage is that I find relevant and admissible: They kicked me out of the Waterford. Forced me to go there, certified me for eighteen days for stealing a car and then forced me toleave. Idiots. Way too early.

Idiots. [24] I find this to be probative of Ms. Norris’s mental state. I recognize there is some prejudice in the reference to the stealing of acar but is substantially outweighed by the probative value. The rest of session 1008 has no relevance, and is inadmissible.

Session1009 This 12 minute session involves chatter about the Colonel Russell Williams, talking about his crimes in Ontario. I find that it has no relevance to Ms. Norris’s state of mind and is excluded. Session 1014A [ 25 ] This is a relatively short statement, the main feature of it is Ms. Norris saying, “Thirty months for what I did.” It reveals something of her state of mind. It shows Ms. Norris’s awareness of the potential consequences. It shows an awareness of right from wrong. It includes some discussion by Ms.

Norris of her anxiety issues, her use of medication to deal with that, and treatment for these anxiety issues. All of this is relevant to the issue of state of mind. Overall the statement does not have any significant issues of prejudice. All of session 1014 is admissible. Session 1016 [ 26 ] The utterances in this session are not relevant and are all excluded. The only comment of possible relevance, near the end, was “It’s my own fault I’m in here.” I just take as an acknowledgement by Ms. Norris that she caused the death of Mr. Reardon. It does not reveal her insight into right from wrong or state of mind.

I exclude all of session 1016 on basis of irrelevance. Session 1017A [ 27 ] All of this session is admissible. These are utterances by Ms. Norris that have probative value to an issue before the jury, namely state of mind and, that have low prejudicial impact. Particularly, the statement, “I attacked somebody and … [unintelligible] … horribly wrong, beat to death with a fuckin hammer” and “ I can’t believe I fuckin did that though.” This is probative to state of mind. She thinks back on it. It reveals her mental state. The prejudice is low because she is merely repeating what is already been admitted.

The utterance has probative value to an issue in dispute because it indicates that she knows it was wrong “I can’t believe I did it.” Session1018 [ 28 ] All of this session is excluded. There is little relevance to the utterances in this session since identity is admitted. Ms. Norris is admitting being the killer. Arguably the statement has some probative value to state of mind because it could expose that Ms. Norris understands that killing is wrong.

But it is entirely in the context of Russell Williams’ crimes against women; the probative value to Ann Norris’s circumstances and state of mind at the relevant time is low, and has a prejudicial impact in that Ms. Norris is discussing serial murderers. The probative value is low and the prejudice, in the sense of an unfocused trial, is high. It is being excluded on that basis. Session 1023 [ 29 ] This session includes the comment, “I’m a messy monster.” The session is all excluded. It is not relevant to the issue to state of mind and it is prejudicial.

It is mostly bad character evidence, and I exercise my discretion to exclude it. Session1043 [ 30 ] This session is excluded. There is nothing of relevance. Ms. Norris is acknowledging the act, in other words, she is acknowledging identity: “I’m the killer.” She says at one point, “It’s my own fault” that she is in jail. That does not speak to state of mind or knowing right from wrong. It is an acknowledgement that she did

an act that resulted in her going in to jail, which is already admitted. Session1047 [ 31 ] This is a rhyme that Ms. Norris made up. The line from which one will easily recall this rhyme includes the phrase “Good night, Marcel.” This gives the flavor, or the ‘black humour’ as Ms. Sullivan described it, in context of the killing of Mr. Reardon. In the rhyme Ms. Norris speaks easily and in gruesome detail of a killing. She borrows some details that are known of the killing of Mr. Reardon. I say “some” of the details because many of the details in the rhyme have nothing to do with the events of May 9, 2016.

The rhyme, the way it is presented, is not a confession. In a way, it is the opposite of a confession because it is represented by both Ms. Norris and her cellmate to be a story, to be made up. It is easy to assume it is a confession because it matches “some” details of an actual event but mostly, what it matches are details that are admitted, or that were known, or that were disclosed through the preliminary inquiry process. Ms. Norris refers to taking Marcel away in a taxi and bludgeoning him to death with a hammer.

The story will have high emotional impact; it exposes, in a fictional story, a cold-hearted woman killer. In this story, Ms. Norris makes light of the death. It is a story that is in incredibly poor taste, making light of a tragic death. At the end of the story, Ms. Norris says, “I’m so bad at this”. In the context she is announcing that [I am so bad at making up a fictional story]. And then when the two discuss writing the words down on paper, Ms. Norris says, “Like the fuck.

It’ll sound like an admission of guilt for me.” I take this to last utterance to mean that the words of the rhyme were made up; they were the opposite of a confession; they were a bad joke. [ 32 ] Ms. Norris acknowledges at the end of this story, that it was in all bad taste to make light of such a situation, to make light of such a terrible deed when she says, “I’m a fuckin cunt for saying that.” From start to finish, the whole song, the whole rhyme, is in the context of black humour and, in my view, cannot be taken as utterances indicative of state of mind at the time of the killing of Mr. Reardon.

There is very low probative value in the context of a made-up rhyme, merely borrowing from a story already known to her from the preliminary inquiry, in the context of dark humour, laughter and boredom in the jail cell. The prejudicial impact is very high.

There is a high risk of propensity reasoning, such that no caution to a jury could overcome. The laughter alone, when discussing Mr.Reardon’s death would be impossible to neutralize with a jury instruction. The low probative value to state of mind is heavilyoutweighed by the prejudicial impact that would flow from its admission. [33] Ms. Sullivan mentioned the R. v. Parsons (1996) (NL CA), 146 Nfld. & P.E.I.R. 210 decision from ourCourt of Appeal. That was a wrongful conviction where Gregory parsons was convicted by a jury of murdering his mother.

It is notexactly the same context of what we are dealing with here. However, in involved the trial judge allowing admission of utterances in theform of made up song --- made up by Mr. Parsons and other members of a musical band ---- that included the words “Kill your fuckin'mother”.

I agree with the comments of Justice O’Neill at paragraph 57 of that decision where he talks about the prejudicial impact ofadmitting these sorts of fictional songs or stories, and the difficulty of coming up with a correcting jury instruction: The prejudicial effect is a very great one and, in my view, substantially outweighs whatever probative value there might be. Thatsituation cannot be corrected by any instructions which may be given to the jury with respect to its consideration of it.

In my view, thetrial judge was in error in admitting this tape [song] into evidence. [34] The Crown made a point that the ease of Ms. Norris telling her stories and rhymes does not reconcile with her claimeddifficulty in telling the same story to her psychologist. However, in the story to her cell mate she is doing the same thing she did with Mr.Penney. She is using the third person to tell the story. She does not say it was her. She is describing a third person. I agree that her easeof conversation on this subject to her cellmate does not reconcile well with her difficult telling a similar story to Mr. Penney.

But thestory to Mr. Penney which was a real story and the story she told her cellmate was a fictional story. Both were told in the third person.The Crown says the ease of telling this story in prison has probative value to the credibility issue, i.e. Anne Norris self-reporting to herdoctor about the killing was difficult, but it was easy to tell a similar story to her cellmate. I agree, but risk of the prejudice to trialfairness is too great. All of 1047 is excluded. Session 1010 [35] In this session, Ms. Norris is making up a story about a murder. Again, it’s a story to entertain, to alleviate boredom.

Theagent is prompting Ms. Norris to “tell me some stories”, as in “make up something.” Ms. Norris obliges. I treat this the same as the songin the previous session. These are dark stories, which have low probative value to state of mind at the time of the killing and are highlyprejudicial. The stories reflect negatively on the overall character of Ms. Norris. The prejudice is that the jury will engage in propensityreasoning, such as, this woman makes light of killing people… she must have planned and executed an intentional killing of Mr.Reardon. That kind of prejudicial propensity reasoning is a danger here.

All of 1010 will be excluded on the basis that the prejudicialimpact far outweighs its probative value to the state of mind issue. Session 1012A [36] In this session, among other things Ms. Norris says, “I’d love to kill someone” and then she is asked: “When did you startfeeling like that.” She replies: “Years ago.” The context from the audio and transcript is unclear to me. The conversation appears torelate to two men, someone named Charlie and a former boyfriend named Brian. It is not clear to me whether the comment about killingis meant in the literal sense or in a jocular sense. She says, “Fuckers.

Oh, I’d love to kill someone. I hates that.” There is a reliabilityconcern for these utterances because one cannot understand the context. In a trial of this nature there is risk that the jury will leap to thecontext that it is meant literally, that “I would like to kill someone”, but it is far from clear that it was intended that way. It could beprobative of an intention to kill, in other words, probative to an issue at trial here, if it was taken in the literal sense. But thatinterpretation would be, in my view, speculation only. I am not comfortable that it has probative value to Ms.

Norris’s state of mind as ofMay 2016, because one does not know what she is meaning by this utterance. I find that it is not sufficiently reliable to be presented tothe jury. I am concerned that it would be received literally by the jury and that would create an extreme risk of prejudice to the trialfairness. Most of the rest of the statement is just chatter about an old boyfriend and her behaviour when she was a young child. The restof the statement is not probative to state of mind and is prejudicial. All of session at Excerpt 1012A is excluded.

Session 1012B [37] Page 1 through to the first third of page 8 of the transcript will be admissible because these utterances are relevant andprobative to state of mind. Ms. Norris makes a comment that this is a true story about herself. She says she became a psycho two yearsago. This is relevant and probative to state of mind. It is her self-reporting and it is her saying that it is true. There is one passage that Iam going to exclude from those first eight pages. That excluded portion appears near bottom of page 2 with Ms.

Norris saying, “Awoman gets beaten up, abused, blah, blah, blah, blah, blah… And comes back and tries … something, and then it ends “killer”unintelligible. Much of this sentence is unintelligible. I could not decipher it from audio or the transcript. So that particular comment isexcluded. But apart from that one passage all of the first eight pages up to the top third of Page 8 is admissible. The probative value ofthose utterances to a trail issue exceeds the prejudicial impact. The remainder of that session, from where Ms. Norris says: “Cause I’dprobably…unintelligible … or hit him. I don’t know …” is excluded.

There is an audio problem such that we do not hear the fullutterance of that last phrase. That creates questions of reliability for that particular phrase. She talks later in that page about using thePepsi can which she referred to in another session about putting fuel in it and causing harm to someone. In other words, she is talkingabout committing crimes in the future, targeting bums. It is to some extent probative of state of mind, a little and perhaps, ofunderstanding right from wrong. But it is very prejudicial and does not relate to the crime for which Ms. Norris is charged.

Itsadmission will create a high risk of propensity reasoning --- keep her behind bars because of what she said she might do, not because of acrime for which she’s facing charges. I exclude from where I said, “Cause I’d probably …unintelligible…” to the end. Session 1014B [38] This is not relevant and is excluded. Session 1017B

[ 39 ] Part of this session was dealt with earlier as session 1017A, and was deemed admissible. [ 40 ] For the same reasons that I excluded the last part of session 1012B I am excluding pages 1, 2 and 3, to the middle of page 3, to where Ms. Norris starts to say: “I do have a lot of balls actually. I attacked somebody… horribly wrong, beat to death with a fucking hammer”. At that point Ms. Norris begins speaking of the killing of Mr. Reardon and this includes comments that are relevant to her state of mind. These utterances (already addressed in session 1017A) will give the jurors a glimpse into Ms.

Norris’s mind at the relevant time, as Ms. Norris is reporting it. All the remainder of Page 3 of the transcript is admissible. Pages 4 and 5, in which she is talking about other crimes, unrelated to the crimes that are before the Court, have little relevance, are prejudicial, and are excluded. Session 1022 This session is a fantasy tale, highly prejudicial, and of low probative value. The agent is prompting Ms. Norris to tell a story about bums. The story has limited probative value to state of mind because it is a fictional story, made up for entertainment. It is a terrible story that reflects negatively on Ms.

Norris. It will be highly prejudicial and lead to the risk of negative propensity reasoning. I exercise my discretion to exclude the story. The prejudice imposed could not be corrected by an instruction to the jury. All of the session at1022 is excluded. CONCLUSION [ 41 ] Session1008 is excluded on the basis of lack of relevance, excepting for; “They kicked me out of the Waterford. Forced me to go there, certified me for eighteen days for stealing a car and then forced me to leave. Idiots. Way too early.

Idiots.” [ 42 ] Session1009, 1014B, 1016, 1023, and 1043 are excluded on basis of lack of relevance. [ 43 ] Sessions 1014A and 1017A are admissible. [ 44 ] Session 1018, 1047, 1012A, 1022 are excluded on the basis that the probative value is low and the prejudice, in the sense of an unfocused trial, is high. [ 45 ] Session 1012B is admitted in part. All of pages 1 through to top third of page 8 will be admissible excepting for an unintelligible utterance that appears near bottom of page 2 of the transcript (Ms. Norris saying, “A woman gets beaten up, abused …. killer (unintelligible)”.

The remainder of session 1012B, from where Ms. Norris says: “Cause I’d probably … unintelligible …” to the end, is excluded on the basis that the probative value is low and the prejudice is high. [ 46 ] Session 1017B is excluded, excepting the portion matching session 1017A. _____________________________ William H. Goodridge Justice