Testimony and cross-examination of Diane Marshall

State of Missouri v. Byron Case

April 30, 2002
Pages 654-675
Direct examination by David Fry
Cross examination by Horton Lance

Page 654 (Diane Marshall testimony)

DIANE MARSHALL, having been duly sworn by the Court, testified:

DIRECT EXAMINATION BY MR. FRY:

Q.

Good morning.

A.

Good morning.

Q.

Would you tell the juror yours name, please.

A.

My name is Diane Marshall.

Q.

And did you know Anastasia?

A.

Yes. I knew Anastasia. I was her stepmother. I knew her for about five years, since she was the age
of 13.

Q.

Would you describe your relationship with her, briefly?

A.

I was very involved with her life, but we were not close. She didn't confide in me, but, you know,
we lived together as a family, and we were very -- you know, we had a lot of common concerns.

Q.

So she was a 13-year-old when you first came into her life; is that correct?

A.

Yes.

Q.
 Your other members to your family, how many stepchildren did you get when you married into the
family?

Page 655 (Diane Marshall testimony)

A.

When I married Robert, I acquired four stepdaughters. I had already had a daughter who was one
year older than Anastasia. And later on I had a daughter with Robert, and she was in preschool, beginning
preschool at the time of Anastasia's senior year. So I was really wrapped up in the life of a preschooler. It's
hard to switch gears from having a very small child to dealing with teenagers.

Small children thrive on a calm regular routine and teenagers thrive on excitement. My primary
focus was my youngest daughter.

Q.

Did all of your stepdaughters live with you the whole five years?

A.

Oh, no.

Q.

What time period did they come to live with you in your house with your husband?

A.

Okay. In June of '96, my husband and I bought a much larger house in Independence only a few
blocks from my other house, and Anastasia moved in that summer. And she persuaded her sister, Francesca,
to come and live with her too. So only Anastasia and Francesca lived with us. The other two girls stayed
with their mother.

Page 656 (Diane Marshall testimony)

Q.

In the summer of '96, if Anastasia moved in, would she have spent her senior year in high school
living with you at that house with you and your husband?

A.

That's correct.

Q.

I'm going to ask you now about a couple of other names. Did you know Justin Bruton?

A.

Yes. I knew who he was. I believe I was introduced to him.

Q.
 How well did you know him?

A.

Oh, not well. Not well.

Q.

You would have recognized him by sight?

A.

Oh, yes, of course.

Q.

Talked to him on the phone?

A.

I didn't have a conversation with him.

Q.

You were aware that he would call?

A.

Oh, yes.

Q.

Do you know how frequently he would call?

A.

No. I'm not a phone answerer. There are other people in the house that are much quicker to answer
the phone than me, so I usually leave it to them.

Q.

Did you know Kelly Moffett?

A.

No.

Q.

Did you know Byron Case?

Page 657 (Diane Marshall testimony)

A.

I wouldn't say that I knew him. I think I can recognize him.

 Q.

Is that the young man that's sitting here in the courtroom?

A.

Yes, yes.

Q.

Going back to your awareness of Justin, do you have any idea of when Anastasia might have started
a relationship with Justin?

A.

Well, it was in the springtime.

Q.

Of what year?

A.

Of 1997. Anastasia was friends with a girl named Anna, and Anna came home with us one
afternoon.

Q.

I was the chauffeur. That was my primary function in Anastasia's life, was to be the chauffeur,
because she went to Lincoln Academy.

A.

And when they came out to Independence, they needed transportation to school. So I worked
downtown and, since my hours were fairly flexible, I would make it my -- I made the adjustments so that I
would take the girls to school in the morning and I would pick them up in the afternoon after school.

Q.

Let me ask you a question: Did Justin meet Anastasia in school? Was he a student with her?

A.

No, no.

Page 658 (Diane Marshall testimony)

Justin was a student at UMKC, and I don't know of any instance when I ever saw Justin at Lincoln.

Q.

Anastasia graduated in May of 1997; is that correct?

A.
 Yes. Well, actually, I think the ceremony was in June.

Q.

She graduated high school, okay? The school completed?

A.

Yes.

Q.

In May? Were you aware of Justin's relationship with Anastasia before school ended?

A.

Oh, yes.

Q.

Did Justin attend the graduation?

A.

Yes. Yes. Justin attended the graduation. That was a very happy day. We were really proud of her.
She was a brilliant girl and --

Q.

Let me ask you this: After graduation did Anastasia leave your home?

A.

Yes. She went to live at Justin's condo on the Plaza. Beg your pardon.

Q.

I'm sorry. I didn't mean to talk over you. If you haven't finished your answer, go ahead.

A.

I'm not certain exactly when she moved out. It might have been prior to the graduation. But that was
her announced goal, that she had made a serious commitment to Justin.

There was talk of becoming engaged to be married, and she wanted to go and stay with him.

Page 659 (Diane Marshall testimony)

Q.

So she met Justin in the spring of '97 and by graduation you think in June she might have even
moved in with him at the condo; is that correct?

A.

Yes.
 Q.

Do you remember her mother giving her some pots and pans for a graduation present?

A.

Yes. She did.

Q.

Would that help you think maybe she had moved in and started her own home?

A.

It was a rather domestic gift and, yes, that incident places it for me.

Q.

Anastasia, once she moved in, did she continue to have any contact with you?

A.

(There was no response.)

Q.

Once she moved with Justin, did she have contact with you and her father at the home?

A.

Oh, yes. Oh, yes. In fact, I think she and Justin took Robert out for Father's Day. Took him out to
dinner.

Q.

At some point in time late in the summer of '97, did Anastasia move back to your home?

A.

Yes.

Page 660 (Diane Marshall testimony)

I think it was when Francesca was having a back-to-school party at our house that we got a call
from Anastasia saying that she was breaking up with Justin and that she would be coming home.

Q.

Did she, in fact, move home with you?

A.

Yes.

Q.
 Did she continue to have contact with Justin while she was living with you?

A.

Yes.

Q.

What kind of relationship and how would you describe it did she maintain with Justin while she was
at your home?

A.

The only thing that I can say with certainty is that it seemed like she continued to go out with the
same circle of friends. In other words, Justin -- the circle of friends that was created when she was with
Justin. She continued to see those people.

And I believe that Justin was part of this social life, but, you know, exactly what her relationship
was with Justin, what they -- between themselves what they considered their status to be as an item or just
friends or estranged, whatever, I don't know.

Q.

She didn't confide in you in any way about that?

A.

No.

Page 661 (Diane Marshall testimony)

Q.

I want to now ask you to focus on October 22nd of 1997. Were you at work that day?

A.

October the 22nd? Yes.

Q.

And do you remember leaving work what you did?

A.

Well, I came home from work.

Q.

Did you pick Francesca up?

A.

Yes. With Francesca. And I think when we came in, I think Anastasia was in the living room.
 Q.

Did Anastasia make any request of you that you recall?

A.

Yes. I see her in my mind's eye. I see her standing in front of the front door and Francesca is
standing beside her and Anastasia asks me if I would give her a ride.

Q.

Did she tell you where she wanted to ride to?

A.

Yes. She wanted a ride -- she said her friends were picking her up at Mount Washington and she just
wanted a ride.

Q.

Mount Washington Cemetery?

A.

Yes. Mount Washington Cemetery.

Q.

Did you think that was odd?

A.

Yes. It seemed odd, but -- okay. I have to describe the circumstances if you don't mind. My father
had died a month before Anastasia and my mother was in the middle of a huge renovation project on a big
Victorian home.

Page 662 (Diane Marshall testimony)

I mean, we had moved the house literally to a new lot and this is an onerous task. And my mother
was, you know, devastated after my father passed away. And there were workmen -- she was trying to act
as her own contractor, and there were workmen working on this house that, you know, wouldn't show up or
they would do things that weren't right. And I was trying to help her.

And because I worked full-time, I had to make arrangements for a baby-sitter. I had to make
arrangements so that I could go over and work on this house. And I knew that some people were putting
sheet rock up in this wall of one bedroom the next day, and I knew that they didn't care whether this wall
was properly insulated or not.

And I was going to go over there and do that myself. And I had arranged this little bit of time in
order to accomplish this task. And I wanted to do it for my mom.

So that was my primary focus, that's why I wasn't thinking about what was all this other stuff that
was going on.

Page 663 (Diane Marshall testimony)

 It was like, when she made a request of me, it was -- the thoughts flashed through my head, Well,
the last time Anastasia asked me to use the car I said no.

And I thought, Well, okay, am I going to be baddie this time? Am I going to be the naysayer? She
was making a polite request. She was asking in a nice way.

And I looked at Fran and I thought, Well, what does Fran want me to say? And Fran wasn't giving
me any clues, because it was an odd request. So I kind of looked at Fran and said, Well, what does she want
me so say?

So then I said, Okay. Well, it's not that far away and maybe we can just to do it quickly.

So that's why I said yes.

Q.

You made the decision to go ahead and take her, and I realize there was a lot of things you were
distracted by and you were trying to balance; is that fair to say?

A.

Yes.

Q.

And so you decided to dress quickly; you changed your clothes, obviously, to get work clothes to go
to your mother's house?

A.

Uh-huh.

Q.

And then, by the time you changed, was Fran -- or was Anastasia ready to leave and did you both
get in the car?

Page 664 (Diane Marshall testimony)

A.

Yes.

Q.

Did you drive her to Mount Washington?

A.

Yes.

Q.

Now, at Mount Washington can you tell the jurors specifically what gate at Mount Washington you
dropped Anastasia off?
 A.

It was the Truman Road gate and at that time there was a massive construction project on Truman
Road. So what is normally a four-lane road was cut down to two lanes. And I took her there. It was early
enough in the afternoon that traffic coming back from downtown had not built up and the road crews , the
workmen, were still there at work. And I knew that when rush hour began that that whole area would be
crawling.

Q.

Now, let me interrupt if you could. Just please try to answer my question. I'll try to get them as
thoroughly as possible. I don't think the jury needs to know about the construction. Okay?

A.

The only thing I remember definitely was that she was wearing a tan corduroy jacket. In other
words, what she was wearing didn't strike me as anything unusual, except for I noted that she wore a jacket.

Page 665 (Diane Marshall testimony)

It was a beautiful day and normally she didn't dress for the weather. She was somebody who just
went out without a coat.

Q.

It was odd that day then that that's why the jacket sticks in your mind; is that correct?

A.

Well, I thought, oh, it's good she is wearing a jacket because, you know, it's getting into fall now.

Q.

After you dropped her off at the Truman gate exit to Mount Washington --

A.

Yes.

Q.

-- you drove away and you stopped at a gas station; is that correct?

A.

Yes.

Q.

And at that time did you notice the time was approximately 4:20?

A.

Yes. I do have a clear picture in my head of standing at the gas pump with a drink in my hand and
looking at my watch, and I did recall that it was 20 minutes after 4.
 Q.

You went to your mother's house and you began to work on the insulation; is that correct?

A.

That's correct.

Q.

While you were working there, you received a call from your husband; is that correct?

Page 666 (Diane Marshall testimony)

A.

Yes.

Q.

And your husband was concerned about a couple things. One of those things was that he had been
told that Anastasia had been taken to the cemetery; is that correct?

A.

Yes.

Q.

Another concern was that he had been made aware that she might not be picked up by the friends
that she was supposed to meet; is that correct?

A.

Yes. I think that was the way it came about. She was supposed to meet her friends I think about 5
o'clock.

Q.

Did you have a clear recollection of which friends she was supposed to meet?

A.

Anastasia didn't name names.

Q.

Did you have any idea or any recollection whether it was one friend or multiple friends that she was
aware of?

A.

Well, I got the impression it was Justin and some of the -- Justin usually came to the house, and he
usually came with other people. I have seen Byron come with him before.

Q.
 So they had actually come to the house and picked up there before; is that correct?

Page 667 (Diane Marshall testimony)

A.

Yes. Yes. They always did that. They always came and picked her up.

Q.

And that was another thing that made you think it was unusual that she was asking you to drop her
off at a cemetery to meet these same friends; is that correct?

A.

It was extremely unusual.

Q.

After you received the call from your husband you also received a call from your daughter,
Francesca; is that correct?

A.

Yes.

Q.

Francesca was interested in a haircut; is that right?

A.

Yes. She wanted me to take her over to Shirley's who was the baby-sitter, and she wanted her hair
trimmed.

Q.

Now, this was kind of another one of those times where you're trying to do the work at the house,
you're trying to take care of Fran and your husband had asked you also to go back to Mount Washington to
try to find Anastasia; is that correct.

A.

Yes. You know, when you get all geared up to do some work, then that's when the phone rings.

Page 668 (Diane Marshall testimony)

And there were a number of interruptions, but when I talked to my husband, I realized that what I
had done, just dropping her off there, was not a wise thing to do.

Q.

So you combined leaving to take Fran to get the haircut with going back to Mount Washington to
look for Anastasia; is that correct?
 A.

Yes. It was going to the sitter's and the hair dresser's was in the same direction, so I dropped off
Fran. And by that time I knew the traffic was really bad on Truman Road. That's why I mentioned the
construction. So I drove around to the 24 Highway entrance, drove across Mount Washington Cemetery to
the Truman Road entrance. I didn't see anybody there. I thought, well, maybe she is standing outside the
gate there where I can't see. So I turned around again and went all the way through the gate and looked. But
there was no one there, and I drove back out to the 24 Highway entrance.

Q.

Not only did you drive to Mount Washington, you drove through it looking for her?

A.

Yes.

Q.

And you never saw her?

A.

No, I did not see her.

Q.

You returned and picked up Fran; is that correct?

Page 669 (Diane Marshall testimony)

A.

Yes.

Q.

You returned home that night?

A.

No. I went -- well, I just dropped Francesca off at the house.

Q.

And you went to your mother's house?

A.

Yes.

Q.

You at some point in time you either finished or gave up trying to finish that job and you returned
home; is that correct?
 A.

Well, I was still working there, and Bob came over to my mother's house and hollered up the stairs,
and, you Know, said it was time to come home.

Q.

Just so we're not too familiar with the names, Bob is Anastasia's father?

A.

Yes.

Q.

Your husband?

A.

Yes.

Q.

So he came over to the house and, again, concerned that Anastasia hadn't been found; is that
correct?

A.

Well, when we got back to our house, and I think Fran was there. And Fran was immediately talking
with Robert about the phone call that she had had, and I took Emma.

Page 670 (Diane Marshall testimony)

My mother had -- we all converged at the house at approximately the same time. My mother
dropped off Emma, and I took Emma upstairs to -- Emma is my youngest daughter. I took her upstairs to
put her to bed. I have a set bedtime routine for her, and I'm the only one that puts her to bed. So I was away
from the living room, from Francesca talking to her father.

Q.

So you were aware there was a conversation going on; you just don't know the specifics of it?

A.

Exactly. That's it.

Q.

And you were also aware that that evening your husband came or left the home looking for
Anastasia and returned, and he came and went a couple different times; is that correct?

A.
 Right. Well, the reason was because he had gotten a call from Justin saying that they had an
argument with Anastasia -- he and Anastasia had had an argument, that Anastasia had gotten out of the car
and refused to get back in and he just had driven off and left her.

Q.

So your husband was going out trying to find her, wasn't he?

A.

Yes.

Q.

And at some point in time he came home and you had a very sleepless night; is that correct?

Page 671 (Diane Marshall testimony)

A.

Yes.

Q.

The next morning he got up early, and he went out looking for her again?

A.

As soon as it was light, I woke him up. I said, you know, "It's getting light now. You better go out
again."

Q.

Go ahead.

A.

I just said, "Go back to Mount Washington." I don't know. It stuck in my head. I kept worrying
about it all night.

MR. FRY:

Your Honor, I have no further questions.

THE COURT:

Mr. Lance.

CROSS EXAMINATION BY MR. LANCE:

Q.

I don't have a lot of questions. Just bear with me. Bottom line is you dropped off Anastasia at Mount
Washington Cemetery entrance on the night of the homicide?

A.
 Yes.

Q.

And later around 6 o'clock you drove back through Mount Washington looking for Anastasia?

A.

Yes.

Q.

When you made that trip through there looking around, did you stop at the Dairy Queen?

Page 672 (Diane Marshall testimony)

A.

No. I didn't even see the Dairy Queen.

Q.

Okay. I'm satisfied with that answer. On that same evening, October 22nd, is it true that your
husband, Bob, had worked late that night?

A.

Yes.

Q.

Do you remember what time he arrived home?

A.

It was after dark. Might have been around 8, 8:30, something like that.

Q.

When he came to pick you up at the Victorian house?

A.

Well, he didn't actually pick me up, but he drove around, and then I drove back too.

Q.

Separate?

A.

Yes. I mean, that's how I had gotten there.

Q.
 Before you and your husband, Bob, drove back to the house in separate cars, was there a time
period that evening when no one was at home back at the family residence?

A.

Hum.

Q.

Let me run through the people. You had left. You were helping your mom put insulation in, right?

A.

My mother was at prayer meeting.

Q.

Okay. You weren't at your house. You were putting in insulation at the big Victorian house, right?

Page 673 (Diane Marshall testimony)

A.

Yes.

Q.

Your husband, Bob, was working late?

A.

Yes.

Q.

Anastasia had been dropped at the cemetery?

A.

Yes.

Q.

Francesca also went to a church meeting?

A.

She went -- I'm not sure if she -- I don't remember her going to the church meeting, but then she
would have been gone from the house when she got her haircut.

Q.

All right. So at least during the time frame of Francesca getting her haircut, at least during that time
frame, you would agree there was no one back at the family residence?

A.
 Yes.

Q.

For some period of time there was no one at home at the family residence that evening?

A.

Probably for a short period of time.

Q.

Who was home when you arrived home with your husband, Bob?

A.

I think Fran was.

Q.

Francesca was the only one at home?

A.

Yes.

Page 674 (Diane Marshall testimony)

MR. LANCE:

All right. No further.

MR. FRY:

No redirect Your Honor.

THE COURT:

All right. Thank you, ma'am. Appreciate your testimony.

THE WITNESS:

Thank you.

(The witness was excused.)

MR. FRY:

We have another witness or do you want to break or --

THE COURT:

Is it a long one?

MS. CRAYON:
 Just the sister.

MR. LANCE:

Defense requests a break.

THE COURT:

All right. We're going to take a midmorning recess for 15 or 20 minutes.

The Court again reminds you of what you were told at the first recess of the Court. Until you retire
to consider your verdict, you must not discuss this case among yourselves or with others or permit anyone
to discuss it in your hearing. You should not form or express any opinion about the case until it is finally
given to you to decide. Do not read, view, or listen to any newspaper, radio, or television report of the trial.

Page 675 (Diane Marshall testimony)

We'll be in recess for about 15 or 20 minutes. All rise, please. Jury is free to go to the jury room.

(A recess was taken.)