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Defense exhibits admitted for record, witness represented and unavailable; judge delays trial testimony
Summary
In a separate trial session, the defense placed four exhibits on the record after a potential witness said he had retained counsel and would invoke Fifth Amendment protections. The court recessed while counsel attempted to contact the witness's civil attorney.
SAN ANTONIO — During pretrial proceedings in State v. Tamar McIntyre, the defense placed multiple exhibits into the court record and told Judge Stephanie Boyd that a potential witness had retained counsel and would not testify, prompting a short recess while attorneys tried to contact that witness’s civil counsel.
The court called case 201912495 and the defense told the bench that a man named Richard (Rashard) Horace had told the defense investigator he had information but then advised he had retained counsel and would invoke his privilege. Defense counsel told the court they would not call Horace and tendered recordings and related materials to be placed into the record for the limited purpose of showing the good-faith basis for cross-examination questions posed earlier to a state witness.
Judge Boyd ordered that the following defense materials be placed on the record for that limited purpose: defense exhibits labeled D11R (audio recording of an investigator's conversation), D12R (contact information for Richard Horace), D13R (an excerpt from the recording), and D14R (an excerpt used to show the basis for cross-examination). The court and both parties agreed these items were admitted not for their truth but to demonstrate the defense's good-faith basis for previously asked questions.
Why this matters: The exchange concerned impeachment and prior inconsistent statements and whether the defense had a good-faith basis for questions asked on cross-examination. The possible invocation of counsel and the witness’s asserted privilege could affect whether the defense can present that person’s testimony and what jurors will be instructed to consider.
Scheduling and next steps
The court recessed and directed the jury to return at 2:00 p.m.; the bench said it would attempt to reach the attorney the witness named, who was reportedly in a deposition. Defense counsel said they would accept a short delay and urged the court to protect the defense from inference that it had been dilatory in attempting to present witnesses.
At issue during argument was whether statements in the recorded material suggested the state (a prosecutor and a private investigator, as characterized in the recording) told the witness that illicit material had been found on a phone — an assertion the prosecution denied and that the defense placed in the record to explain why its cross-examination questions were asked. The prosecutor told the court she had not had time to review the material before cross-examination earlier and objected to any implication that the state had made such representations.
The court cautioned counsel that arguments about ethics and counsel conduct would need a formal motion if either side sought to bar lines of argument at closing. Judge Boyd said that if there were concerns about what the jury might be told, the parties should file motions and the court would consider curative instructions or limits at an appropriate time.
No further testimony or rulings on the underlying charge were recorded during the session; the matter was continued so counsel could attempt to make the witness available or otherwise adjust the trial plan.
