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Sentencing of Byron CaseConclusion of State of Missouri v. Byron CaseJune 28, 2002Pages 1249-12901249Opening of Court1250 Defendant's statement1256 Ruling on defense motionsVictim impact statements1260 Francesca WitbolsFeugen1262 Robert C. WitbolsFeugenTestimonials for defendant1266 Mike Myers1268 Evelyn CaseRemaining proceedings1273 Defense plea for leniency1279 Judge's findings1285 Imposition of sentencePage 1249THE COURT:We'll go on the record in the case that's been styled State of Missouri vs. Byron C. Case, causenumber CR2001-03527. Record should reflect Mr. Case is here in person represented by his counsel, Mr.Lance, and that Mr. Fry is here on behalf of the people of the State of Missouri.The case comes before the Court for the purpose of dealing with a motion for judgment of acquittalnot withstanding the verdict of the jury or, in the alternative, for a new trial; and also, should that motion bedenied, the Court intends to take up the issue of sentencing at this time.So with that being said, the first matter I wish to address, Mr. Lance, do you want to make any other additional record on your motion, other than the written document that's been placed before the Court?MR. LANCE:No additional record, Judge. I believe the matters -- the issues raised were thoroughly discussed atthe trial. I don't think it would benefit anyone to reargue all the issues today.Page 1250So at this time, the defense will stand on the written motion previously filed. I would add my clienthas an additional issue I think he wants to speak to.THE COURT:Is it one that we need to deal with before or after I rule on the motion?MR. LANCE:I think it Is an issue related to the idea that he would request a new trial -- grant him a new trial.That's why I bring it up at this point. I think it will be brief.
 
THE COURT:All right. Hold on for just a moment. Before I ask you to make any comment, Mr. Lance -- in other words, your client wishes to make a statement regarding new trial issues?MR. LANCE:Yes.THE COURT:All right. Mr. Case, although you are represented, if you have a statement you wish to make at thistime, I'll allow you to make that statement.THE DEFENDANT:Thank you, Your Honor. If for no other reason than to make it a matter of record, I would like to bring to the attention of the Court an issue of serious concern.Page 1251During the course of my trial, some people made my attorney, Mr. Lance, aware that they witnessedYour Honor repeatedly nodding off to sleep. Mr. Lance never said a word of this to me until I later confronted him about it.THE COURT:Excuse me. Who nodded off to sleep?THE DEFENDANT:You did, sir.THE COURT:Okay.THE DEFENDANT:By that point, the trial was already over, however. Then, to compound the matter, he never mentioned this as either an amended version of his motion for new trial or as an addendum to thatdocument.I feel this is one of the examples of my counsel's, frankly, ham-handed way of dealing with mydefense and of what I feel is a blatant disregard for my right to fair trial. I don't think it's any excuse of  professional embarrassment that can possibly be acceptable when dealing with the issue of deciding people's lives.Page 1252The only viable resolution that I see, and I hope that you see as well, sir, is that at this point I think the best thing would be to overthrow the jury's verdict and declare a mistrial.THE COURT:Okay. Anything else that you want to say?
 
THE DEFENDANT:No, Your Honor.THE COURT:All right. Do you want to address the issue either of Mr. Lance's motion or the comments made byMr. Case?MR. FRY:I'll do both, Your Honor. I do agree with Mr. Lance. The issues raised in the motion for new trial presented by Mr. Lance are timely and ruled upon by the Court were thoroughly litigated, very aggressivelylitigated by defense counsel and aggressively litigated by the State. We have no further argument to make.We think the Court made the right rulings, obviously, during the case, except for those rulings where youkept evidence that the State had that we wanted to get in out, and that's not an issue anymore.Page 1253In regard to the last remark made by the Defendant, I think the record should reflect that I was here present the entire time, and I don't think the record is reflecting any insinuation that I fell asleep at theswitch at any time. I was alert, and I noticed that the Court was totally at all times aware and not noddingoff. And if needed to testify, would testify as such. I think any insinuation that you were not attentive at allis incorrect.THE COURT:All right. I'm just sitting here pondering the issue of -- my distinct recollection is I'm very confidentthat I didn't nod off at all during this trial, because I recall this trial very well. And I recall, among other things, that I thought it was an extremely well-tried case by both sides. The only hesitation that I have is I'mtrying to decide what -- it's sort of a novel -- it's a novel position for a defendant to take, and I'm sitting heretrying to think if there is any other way I should respond to it. So that's my hesitation.MR. LANCE:Judge, if I may.Page 1254THE COURT:Yes, Mr. Lance.MR. LANCE:The reason I allowed my Defendant to raise that, even though I never raised it, he views it as anadditional point that should have been in my motion for new trial. He's concerned that, if the Court wasnodding off at various times, how could proper rulings have been made on evidentiary objections.He views it as a concern that I should have put in the motion for new trial. That's why I allowed himto raise it.Now it's just an additional point we would argue today for granting him a new trial. That's our only belief or only ruling that we're asking.
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