Pre-trial motions and rulings State of Missouri v.
Byron Case April 19, 2002 Pages 1-42 The motions are as follows: Kelly Moffett's mental health records Byron Case's statement to police on July 29, 1999 Audiotapes of Case's tacit confession Byron Case's customized license tags Case's use of autopsy photos as screensavers Case's fluency in German Statements made at Jackson County Jail Justin Bruton's shotgun purchase Use of Voice Stress Analysis tests Hearsay statements made by Bob WitbolsFeugen to Deputy Epperson Any prior mental health history by Kelly Moffett Emails from Byron Case and information published on his web site Page 1 THE COURT: Let's go on the record in the case styled State of Missouri vs. Byron Case, cause number CR200103527. Mr. Case is here in person with his lawyer, Mr. Lance. Ms. Crayon and Mr. Fry are here on behalf of the people of the State of Missouri. The purpose of this proceeding is to make a record on certain pretrial motions. We can make them here or, if you want to be seated and have your client seated at counsel table, it's whatever your pleasure, Mr. Lance. Tell me. MR. LANCE: Why don't we have a seat. THE COURT: Would you like him uncured for the proceeding? MR. LANCE: I would prefer that, Your Honor. THE COURT: Is that all right with you, Ramp? CORRECTION OFFICER: That's fine. Page 2 THE COURT:
As the parties are aware, I think the circumstance we find ourselves in is this case has been pending for a period of time and I think I got with counsel, and we agreed to attempt to try this case the week of April 29th, but because of certain scheduling issues that I had, we agreed to pick the jury on Friday, the 26th, and commence evidence, I believe, on the 29th of April, which is the following Monday. And the purpose of this proceeding is to flush out any pretrial issues that exist so that we can go straight into jury selection on the 26th and hear evidence on the 29th. I think the first issue is previously I think there was a short hearing in the recent past in which Mr. Lance filed two motions requesting, in effect, that I utilize my powers under the Uniform Attendance of Witness Act to secure the attendance of two witnesses. One was Debbie Moffett, and I believe Debbie Moffett is likely going to be witness for the State also. So I assume that issue is in hand and resolved; is that right? MR. LANCE: That's right. Page 3 THE COURT: And Ms. Moffett's daughter is Kelly Moffett who is a key witness to the State; is that true? MR. LANCE: Yes, Your Honor. THE COURT: Ms. Kelly Moffett I believe has had -- at least there is an allegation she has had treatment from a therapist, mental health professional, and that person's name is? MR. LANCE: Wendy Eaves. THE COURT: Wendy Eaves. And basically, what occurred, and I think the record will reflect, is there was an effort to subpoena Ms. Wendy Eaves for trial under the theory that, through cross examination or impeachment evidence, that this psychological record could conceivably have relevance. The State resisted such subpoena, and I believe I took a middle ground and suggested that, if we could construct a procedure for me to look at the records in camera, that I would initially do that. My understanding is that, through the cooperation of Ms. Crayon, we've had a chance to get with Ms. Kelly Moffett or to Ms. Eaves and that I am going to have an in camera set of records this afternoon to review as I understand it. Page 4 MS. CRAYON: Yes, Your Honor. Ms. Eaves is going to deliver them to your law clerk at 3 o'clock this afternoon.
THE COURT: First of all, at this point in time, I'm going to direct both sides not to get into anything about these mental health records without prior court approval. Secondly, I will review those health records, and I'll make a definitive ruling whether I think they're relevant or not. When I make such a definitive ruling, each side will be able to make any additional record. If I find them to be irrelevant, I will take those records and place them in a sealed fashion for review for any court of higher jurisdiction. If I think they're for some reason relevant, we'll have a more extended hearing on the extent of their relevance. Is that procedure agreeable, Mr. Lance? MR. LANCE: Yes. Page 5 THE COURT: In essence, in fairness to you, I haven't read the records, and I'm not sure what posture you would want to use them, but the issue of whether you can even cross examine Ms. Moffett about it, I'll be glad to rule on those things, but at this point in time, the issue of her having a psychologist and what that relationship was and what these records say, I am excluding that line of inquiry at the present time, subject to reevaluation once I review the records. I'll allow you to make any additional record you wish at the appropriate time. Is that agreeable? MR. LANCE: Yes. THE COURT: Likely what we'll do, if we don't get to it today, at jury selection I'll make my tidings first thing Monday morning so we can define that issue. MS. CRAYON: You might want to do it before. THE COURT: If you want to get here first thing Friday morning, we could do it then. MS. CRAYON: Okay. THE COURT: I'm in trial next week so I'm not sure when we'll get to it.
Do you have any thought, Mr. Fry? Page 6 MR. FRY: At some point in time on Friday we'll have recess and be able to talk about it. Our evidence won't start until Monday. Friday sometime there will be plenty of time. THE COURT: I think that's well thought. At some appropriate time, out of the hearing of the jury panel, we'll deal with this issue next Friday. Is that agreeable? MR. FRY: Yes. The only other thing, we had some discussions earlier and we're actually in agreement. To the extent that you're reviewing these psychological records, for the privacy of Kelly Moffett, but some relevancy for cross examination or inquiry by the defense in terms of the diagnosis that the defendant had put in its petition, that's one line of inquiry. But we also agreed prior to coming to court today, you may find there and we don't know, some discussion that is recorded as to the facts of this case, in terms of the homicide and subsequent suicide of one of the other parties involved. Page 7 We would suggest to you, if you keep your eye open for that, that may be a line of relevancy that may be subject to inquiry that you find in there, as well as the diagnoses that may be relevant to inquiry here of Ms. Moffett. There would be those two lines reviewing these records. We just want to make you aware of that, that prior statements as to the homicide or how it happened may or may not be inconsistent, but would be relevant and should be provided to the defense. THE COURT: Well, let me review the records first. Go ahead, Mr. Lance. I can give you my thoughts, bat go ahead. MR. LANCE: So you better understand why the defense is requesting them, the State's main witness, Kelly Moffett, we believe is on record with three different statements of what happened. Her first statement, she agrees with the Defendant and didn't see the murder. THE COURT: Right. Page 8 MR. LANCE:
Her second statement is she says a guy name Justin did the murder. Then her third statement is Byron Case did the murder. So I'm curious -- or I think it may be relevant any description she gives of this homicide or what she claims, if it's in there, I would be curious to know if she says again in there the other guy, Justin, did it or if she describes the murder, she may give different details than what she is on record. So you any discussion of this homicide I think is a -THE COURT: My understanding is your interest in the records include any discussion -- I'm not saying you have a right to look at this, but your interest includes any discussion of the homicide, plus any diagnoses that might affect her credibility? MR. LANCE: Right. Exactly. And I may have -- in my typewritten motion, at the time I may have been too strong with the word diagnosis. I think State's attorney pointed out that compulsive liar is probably not in the DSM. But if it says this person has a real problem being a chronic liar or words to that effect -Page 9 THE COURT: I understand. I understand that. So I'll look at it. There is a whole host of potential issues here. Not host, but one issue is she waiving the privilege or not waiving the privilege. Okay? Then the other issue is -- so theoretically, in other words, if there is stuff in those records that's good for the State and you want to use them, for example, I don't think she can selectively waive her privilege. If you want to use them and he gets the records and everybody gets to look at them, what's relevant comes in then; do you follow? The next issue or other issue that could arise is, in this kind of situation, since it is a murder in the first degree case, since she is a very key witness to the case, theoretically -- and I emphasize theoretically -potentially there could be some semi-Brady issues in terms of things she might say that could be used for cross examination, if it constitutes impeachment evidence that is so critical that it might actually be defined as exculpatory evidence. Okay? Page 10 But that's kind of a novel theory and I think I'm going to have to see something pretty powerful to reach that conclusion. Okay? Those are the inquiries that I'm going to suggest. But, basically, one of the things that -- to give you an example. Let's assume she talks about the homicide. I guess one of the issues is, as I understand it, State has not seen the records; is that right? MS. CRAYON: That's correct, Your Honor. THE COURT: One of the issues is whether you guys want to see the records with a protective order so we're all coming from the same position. I don't have a problem with that, if you guys -- I'm not necessarily opposed to doing that.
There is one of two ways to do it. I can let you guys review the records with a protective order, it can not be disclosed to anyone; that includes -- I suppose you could discuss it with your client, but you can't disclose it to anyone else. And you all can't disclose it to anyone else other than Ms. Moffett. Page 11 The other way is I just look at the records and see if I think they're relevant, and then I make a ruling and then the Court of Appeals looks at it and nobody sees the records but me, unless I find something that I need to alert you all to. MR. FRY: I think the case law, Your Honor, set up the format for the in camera review by the Court. THE COURT: I think it contemplates me reviewing the records and you guys staying out of it. MR. FRY: Us too, and -that would be our position. THE COURT: I know, obviously, you would like to look at them, and I understand that, Mr. Lance. My initial position is I'm going to review the records and go from there. If it becomes something that's unduly problematic, I'll alert you; otherwise, we'll take it up Friday. Page 12 There is a motion to suppress statements filed April 18th, and is the gist of it, were there certain statements taken that may have been in violation of Miranda that the State is agreeing to suppress? MS. CRAYON: It's a little more - convoluted than that, Your Honor. THE COURT: If the State is agreeing to it, you just tell me the statements, and I'll order them excluded. MS. CRAYON: Judge, any understanding from the motion is that they are seeking to suppress evidence of statements taken by the Jackson County Sheriff's Department of the Defendant dated July 29th 1999. There are a few statements that he gives. That one in particular was given after there was a letter that was sent from our office saying that we wouldn't use it against him, in a nutshell. So we're agreeing that we cannot use the statement from July 29th of 1999 against Mr. Case in his trial, and we don't have any problem with agreeing to the motion as it's written. Page 13
THE COURT: I don't know what those statements are. I don't know whether it's necessary that I do. But I assume what we're talking about is a typical suppression of those statements. Obviously, you cannot use them in your case in chief. If he were to testify inconsistent with those statements, it would seem to me, under a normal suppression order, those potentially could be used to cross examine him. Is that the intention -- in terms of your position, is that the State's position? MS. CRAYON: Our position is that we agree that we will not get into them at all, basically. I think. MR. FRY: It's beyond that normal, Judge. The letter that was authored by an assistant by our office to, not Mr. Lance, but an attorney that was representing the Defendant at an earlier time during the investigation, could be reviewed to say we're not going to use it. Secondly, there are two comments made by the deputy during the course of the interrogation that I think take this beyond the scope of normal stuff, and we don't want that process even complicating the appellate section. Page 14 If we do get a conviction on this, we don't want it to be involved. We're not going to use it at all. THE COURT: I'm going to show the statements the Defendant made to members of the Jackson County Sheriff's Department on July 29, 1999 to be suppressed, and they are not to be used in evidence in any fashion during the course of the case before the Court. I believe you filed a second motion regarding the exclusion of audiotapes and transcripts? MR. LANCE: Yes. That one we don't agree on Your Honor. THE COURT: I can read the motion, but it's your motion. If you want to make a brief argument or tell me where you're headed, I'll hear State's response. MR. LANCE: Judge, I think the written motion covers it. MS. CRAYON: Basically, Judge, what we're going to ask you to do is take the opportunity to listen to the audiotapes yourself. We'll provide you the transcripts that have been made with those tapes. Page 15
I do understand Mr. Lance's point. There are motions in there that are very muffled and you can't understand what's being said, but that is listed as inaudible. The transcripts don't try to put forth anything that you can't hear on the tapes with the aid of the transcript. So I think probably prior to actually ruling on this, in fairness, I just ask you to listen to the tapes along with the transcripts, because we will be asking to introduce them. The relevancy of them, just so you know, is they are recordings of conversations between the key witness of Kelly Moffett for the State and the Defendant, and what is being discussed on the tapes is the actual crime itself and questioning by -- past questioning and possible future questioning of the witness. And so I think that the content of that is extremely relevant and Defendant's responses to State's witness. THE COURT: Okay. This is the procedure I intend to utilize in this regard. Page 16 First of all, I will listen to the tapes to determine their relevance. We'll deal with the issue of relevancy and the like. Obviously, I will require -- there is a foundation you got to lay for the tapes which I suspect are defined in these cases that he cited. So, obviously, if you want to put the tapes in, you got to lay a proper foundation. We'll deal with it. The proper foundation, if I'm not mistaken is basically there has to be a chain of custody. Show the tape is unaltered. Those kinds of things. I suspect these cases will define that foundation for me. The State should be in a position to make sure that you have some law that tells me what the foundation is. MS. CRAYON: All right. THE COURT: And then, if they are relevant and, if there is a foundation, okay? I will listen to the tapes with the transcript. And, if I use the transcripts, I would probably allow the State to use the transcripts, and I would also -- likely what I would do at the Defendant's request is give a jury instruction or a limiting instruction, and tell them that the evidence is the tapes. Page 17 The evidence is not the transcripts, and the transcripts are only used to help you understand What's on the tapes. And I would be glad to give such an instruction to the jury. MR. LANCE: That may be where we were headed anyway. THE COURT: And I suspect that that would be my inclination. Okay?
And then other thing is, when we reach this issue, what I would suggest the State does, when I'm dealing with the issue of foundation, the equipment you're going to use to play it before the jury, that's the same equipment I need to hear when I hear it. So, if it's so muffled the foundation is not properly laid, I need to hear on the same equipment that you're going to use in trial. MR. LANCE: Yes. Judge, the verbal motions in limine, I had four areas. I'll take them one at a time. THE COURT: That's great. Page 18 MR. LANCE: First area I would like to request be off limits at trial is discussion of the Defendant's two license plates on his automobile. He had two different personalized license plates. First one said "MORBID", M-0-R-B-1-D, and the second personalized plate said ATHEIST. As with most motions in limine, the objection is this may be prejudicial with some members of the jury and, at the same time, not probative to any issue of guilt or innocence. And I believe religious preference or choosing not to have a religion preference is not a proper inquiry. Again, if there are religious people sitting on the jury and they hear of personalized plates that say "ATHEIST" or "MORBID", I don't see that as relevant and it could be highly prejudicial. THE COURT: Ms. Crayon. MS. CRAYON: Mr. Fry will respond. To be honest with you, Judge, there is going to be a lot of that kind of all related, I think. MR. FRY: There is one particular line of argument here that I think I would be a little more comfortable dealing with, Judge. Page 19 In the course of this trial, certain lifestyle or characteristics of the Defendant that Kelly Moffett, the main witness is aware of because of their close relationship, it kind of borders along the lines of -- that's been referred to often as a goth type lifestyle or approach. I'm not really too sure of the exact definition of that, but there are certain characteristics we think are quite relevant to understand what Kelly says when she is explaining the situation as it develops. For instance, we expect her to testify that it was the Defendant that shot Justin -- the other boy's -girlfriend. Why was it actually did the shooting.
Kelly would be able to explain that because it was more consistent with the Defendant's lifestyle. Other characteristics of that lifestyle are the Defendant's prior statements to her that he would like to know what it's like to kill somebody and his desire to express he wants to know what it would be like to do that. Page 20 The Defendant's appearance, goth lifestyle, and the Defendant in particular would wear black pretty much predominantly. Would wear white makeup, the pale look, with black lipstick. That appearance is consistent with that kind of propensity of the Defendant to be caught up in this. Another example would be the Defendant with a friend walking around Westport wearing a priest collar. The bumper stickers, and I'll give you an idea. We've got a couple of -- we've got photos of one of the two automobiles we'll be referring to in the course of trial. THE COURT: Am I to understand that all these areas, they're going to be -- the same kind of general motion in limine may apply to all of these things? MR. FRY: what we wanted to do is bring them up today, not only in terms of the motion in limine to keep this out, we intended to come to court today and say, Judge, we want you to be aware of this because we intend to go into it and we think it's fair for you to be prepared to make a ruling, let you know what's going on, where we're trying to go, why we're going there and why we believe it's relevant. Page 21 This particular motion in limine touches on an aspect of all the critical information that we wanted to preview for you today, and our intent to bring all this in, and the basis for its relevancy. Other particular things, if I could point them out to you, is that Kelly Moffett can tell the jury that the Defendant had a computer and, as a screen saver, used autopsy photos for his screen saver. The one thing that we think is really quite provocative, when you see pictures now of the car that we're showing you with "MORBID" and some stickers on it, again, we would think that they're all relevant to the lifestyle that Kelly Moffett will describe for you. Page 22 This includes, even some evidence in this would be through Debbie Moffett, the mother of Kelly, who, when the Defendant is a visitor in her house, can come in and tell the jury that the Defendant would wear a pin, like a little, oh, some kind of button type of thing, that has a picture of Christ hung upside down on a cross saying: "We raped your savior." MS. CRAYON: "We ass-raped your savior." MR. FRY: "We ass-raped your savior." To the extent that that would be so provocative and prejudicial, we think we're not going to bring that in. But where these other things are not so provocative and not so
overwhelmingly prejudicial, but consistent with Kelly being able to describe the Defendant's lifestyle so that, when she does testify, this Defendant shooting the victim was so much more consistent with what she knew him to be rather than just all those other observations from the clothing, to the computer, to the clothing, the walking around with priest, the "MORBID", the "ATHEIST", the other bumper stickers that you see on the car we believe are relevant in her giving that context, her observations giving that context to her statement that an explanation as to why this Defendant -Page 23 THE COURT: Let me so.- if I understand. So, in essence, what you're suggesting she could give testimony to suggest -- I'm not sure what a goth lifestyle is. I'm trying to think if I've actually heard that term before you just mentioned it. But from these photos, there are photos before me that show a bumper sticker that -- well, it shows the license plate "MORBID". I assume there is another license plate that says "ATHEIST", I assume. Here is a bumper sticker that says: "Honk if you need an abortion." Another bumper sticker says: "Can't feed them, don't breed them." An bumper that says: "Got mine. Up yours." And you've also got -MS. CRAYON: Judge, I should point out too on there, it's harder to see, but there is also two stickers on there: One that says "EVIL" and one says "I AM GOD". And then up in the top left comer there is one that says, "Ich Bin Ich," which is German. Page 24 There will be testimony from Kelly Moffett that this Defendant and Justin Bruton, just prior to the homicide, that they were conversing in German in the car and that Justin Bruton was yelling in German to him at the time of the shooting and that, after he got back into the car, Justin Bruton says, "Did you hear me telling you not to do that?" That is what we expect her testimony to be. And Kelly, not understanding German, is going to testify that that's what she then assumes was being said in German outside of the car at the time of the shooting. So those kind of things, not only with Kelly Moffett, but, if Justin Bruton's father is to testify, he would talk about meeting Kelly and this Defendant the day after Anastasia is found. THE COURT: Is Anastasia the person that was killed? MS. CRAYON: I'm sorry, yes, the victim. And Justin Bruton is the one who committed suicide right thereafter. Justin Bruton's father may be a witness at some point and part of his testimony would include this. And Justin Bruton does not -- by anybody's testimony or any pictures that we have of him -- doesn’t show this extreme black clothing, the makeup, the black eye liner and all of that like the Defendant does. Page 25
So when Justin Bruton's father meets this Defendant, he notes that. It's something that strikes him. So it's not just Kelly. It's also other people who may be testifying. Debbie Moffett, as Mr. Fry has said too. So I think it's going to give context to a lot of other people involved in the case besides Kelly, but mainly Kelly. THE COURT: what's "Ich bin Ich" mean? Does that mean something in German? MS. CRAYON: I think it's "I am I", I think. I'm not positive of that, though. THE COURT: I'm not sure I understand. This "Ich bin Ich", if there was testimony he was speaking in German before the homicide, I can understand the relevance of that sticker but -- I'm not questioning the State's position, I'm trying to understand the State's position. Page 26 Why does all this sort of things that probably, to the average person, seem either strange or even offensive, okay? And/or kind of at least, for lack of a better term, on the dark side, if I can coin a phrase, why is that stuff relevant? MR. FRY: It's relevant to the extent that Kelly will be able to tell from testifying to the jury a lifestyle chosen by the Defendant and his assimilation to this type of behavior, which is expressed not only -THE COURT: What type of behavior are we talking about? Are you saying somebody -- see, the problem I have is I could certainly understand there might be things that, in the context of her story, where her credibility is at issue, some of these things might be relevant. But to say a guy acts weird and has offensive stickers; therefore, he's likely to commit homicide, I think that's almost like character evidence that's presumptively inadmissible, if that's what you're trying to do. Page 27 MR. FRY: No, it's really not that, but what it's going to do is things that people see and associate with him, for instance, this -- I'm not sure the goth lifestyle is ever going to be fully defined or understood here in the course of this trial. But there is like this fascination with morbid death, and I'm not sure what other context it reaches. Okay? But it is expressed by this Defendant, we say, to give this case context by the way he will dress, the way he will wear makeup, the way he will use these autopsy type pictures for his web site, for his screen saver. It all gives context to the fact that, when Kelly tells the jury why is this Defendant that is the one that shoots Justin's girlfriend, Anastasia, why is this Defendant that said in the past that he desired to know what it would be like to kill somebody, not an expression you hear from most people, but she is capable of saying that. We expect to try to get that out. And unless ordered by the Court not to, that's what we intend to do. These things give that expression. context as well.
Page 28 THE COURT: Let me just talk to you generally about this, then I'll hear from Mr. Lance. It seems to me each of these things -- some of these things might be relevant. Others might not be. Like, for example, if you're saying she is going to say that he killed this person because he said to her, his admission to her, "I have a fascination for death and I always wanted to kill somebody." Okay? Well, the fact that he uses autopsy photos as a screen saver, that might have some relevance. Okay? I can understand that. "Honk If You Need an Abortion", I'm not sure that makes that relevant. Or "Can't Feed Them, Don't Breed Them", each one of these things has a different -- this idea I'm just going to let you carte blanche march into this stuff without a little more, I'm not saying I'm not going to let you do it, but I'm not tracking. MR. LANCE: May I have a chance? THE COURT: Go ahead, Mr. Lance. MR. LANCE: I want to respond somewhat to what Mr. Fry was saying and explain a little bit more why we believe it's not relevant. Page 29 The example, first one I want to latch onto is an autopsy photo being used as a screen saver on the computer. I have hired an expert pathologist in the case, Dr. Friedlander, just to review the entire file and see if he could find anything to help me. In conferring with Dr. Friedlander and he commented, "Well, what do they really have on your guy?" And I said," I think the State is coming forward with this theory be was fascinated with death. He has a screen saver of autopsy photos." And Dr. Friedlander's response was: "So what? I'm fascinated with death. I've made a career out of autopsies, teaching pathology to medical students on what causes death. I'm fascinated with death too. Does that make it relevant that I'm a homicidal killer?" He pointed out the farcical nature of what the State is trying to say there. Page 30 So the Defendant is going back again to perceptive most basic motions in limine, which is, this could be viewed as very prejudicial in the eyes of some members of the jury, but yet is it probative that a person is a killer because they're interested in that type of thing? I guess one thing I totally agree with the Court on, probably to take each item one by one. THE COURT:
Let's go off the record a second. (A discussion was had off the record.) THE COURT: Let's go back on the record. On this issue of the conduct, I may want to revisit this, but it's my understanding there are some other motion issues that may be either fairly to the point or agreed upon. So can we cover those if that's agreeable? MS. CRAYON: Yes. During the deposition of Kelly Moffett, the defense counsel had asked her about her possible -whether or not she spoke with a (Jifl?) Jones or Lori Taylor at the Jackson County jail making statements regarding whether or not this truly happened. Page 31 And Mr. Lance has not endorsed either of those people on his witness list, and I am under the assumption they are not going to be called. If they were going to be called, we would ask their testimony would be struck from the record as being hearsay. They didn't have any foundation. It could have been anybody. MR. LANCE: I'll concede that motion. THE COURT: Okay. That's fine. MS. CRAYON: The next thing, there was a purchase of a shotgun by Justin Bruton on September 27th 1997, which is a little less than a month before the homicide. We are going to seek to enter into evidence the business record of that transaction, and we're asking if the defense would stipulate to the admission of this as a business record and not contest the foundation of it or anything like that. MR. LANCE: Yes. THE COURT: We'll show that document admitted. MR. LANCE: Stipulated. THE COURT: Stipulated to. Page 32
MS. CRAYON: Regarding that particular shotgun itself, we have a motion in limine that, should the Defendant testify as part of his prior statements that we think are admissible, not the one from July 29th, but there was statements that he made that be had heard either from Justin or someone else that that particular shotgun that was purchased almost a month earlier had been sold by Justin Bruton sometime -- week or two before the homicide. And we are objecting to or doing a motion in limine that he be able to testify to that based on the fact there is no foundation for him to know that. He was not present for the sale. Just something you heard of. THE COURT: There is testimony Mr. Case had heard that? MR. LANCE: Right. MS. CRAYON: Yes. That's, if Mr. Case decided to testify, that I would ask the Court to keep him from being able to testify that Justin Bruton had sold that gun prior to the homicide. MR. LANCE: We'll concede that motion. Page 33 THE COURT: Okay. That's good. MS. CRAYON: All right. There was a voice stress test that was attempted on Kelly Moffett by the Jackson County Sheriff's Department. She was told by the deputy she passed that stress test. This is right after giving a statement back at the time of the homicide. It was later found out that the machines that were being used at that time were not functioning properly, and the test was void. I'm asking the Court to keep out anything in reference to the fact she was given a stress test, whether or not she thought she passed it. I think they're inadmissible; same with the polygraph. MR. LANCE: We're going to agree with that motion. I view it as a polygraph test also, so can't be mentioned. THE COURT: All right. Sounds good to me. MS. CRAYON:
Deputy Epperson, who is the deputy who discovers of the body of the victim at the cemetery, had some contact with the victim's father the next day. Page 34 There is lots of discussion from the dad, and I don't know that -- I think it's clearly hearsay, that anything that the dad says about what he thinks may have happened should not be able to be elicited from Deputy Epperson. So we're going to object to anything like that. THE COURT: Mr. Lance. MR. LANCE: I'll concede that, as long as we're limiting it to things the dad is theorizing could have happened or hearsay he heard maybe -THE COURT: Okay. Start again. You lost me on that. MS. CRAYON: Okay. Deputy Epperson is the one who discovers the victim's body. She is found at 3:45 in the morning of the 23rd. The morning of the 24th, after the family has been notified it's Anastasia WitbolsFeugen, the father has come out -THE COURT: Father of the victim? MS. CRAYON: -- Father of the victim has come out trying to find the place where his daughter was killed. And he speaks to Deputy Epperson. They have a string of conversation. Page 35 Everything from -- anything the father says to the deputy is hearsay is our position. So anything dad says to the deputy, whether it be about his theories -THE COURT: From the deputy's mouth? MS. CRAYON: Absolutely. That's what we're asking to make sure, none of that is attempted to get in through Deputy Epperson. MR. LANCE:
I think that's valid. I guess I was saying I think you're trying to limit to the father rambling on speculating different ways the homicide occurred. So I don't want to ask those questions. MS. CRAYON: That is a chunk of it, the father gives theories of what he thinks may have happened, but anything the father is saying really is hearsay. If Deputy Epperson wants to get up and testify -THE COURT: My position is, I suspect what you're saying is exactly the truth, but I can't totally understand it until I hear the questions and the context of the testimony. MS. CRAYON: Okay. Page 36 THE COURT: It seems to me, if he's not going to agree to it -- I'll tell what you I'll do, to simplify this, I'll direct Mr. Lance not to get into the issue of what this father may have said to Detective Epperson without first approaching the bench and suggesting to me why there is some exception to the hearsay rule. MS. CRAYON: That's fair. We have some more specific things regarding the mental illness diagnosis and things like that things that occurred prior to the homicide. But if you want to take that up when we're talking about the other -THE COURT: Tell me about it. MS. CRAYON: Any treatment or diagnosis of mental illness prior to October 22nd of '97, the date of the homicide, of Kelly Moffett, we don't think is relevant. THE COURT: Other than what might be in these records, do you have any intention of tying to get into that stuff? MR. LANCE: No, not unless it's in those records. MS. CRAYON: Any treatment, diagnosis of anyone in Kelly's family at any time -MR. LANCE: I'll concede that.
Page 37 THE COURT: Okay. MS. CRAYON: And then I think the final one had to do with asking Kelly if she was diagnosed or treated or told to be a pathological or chronic liar. THE COURT: Those are issues I'll deal with when I review the records. MS. CRAYON: Right. I will for the record say that we've kind of talked about the fact that anything post the homicide date, the fact Kelly, actually, sought counseling for either drug abuse or emotional issues, I think that's relevant and, in fact, the State intends to get into some of that, but the specifies of diagnoses or claims of whether or not someone was lying about certain things I don't think is. That really isn't in the form of a motion. That's information more than anything. GARBLED DATE THE COURT: You're telling me you (??) certain things are relevant I don't think are motions in limine. Do you have any motions, Mr. Lance? MR. LANCE: Judge, I wanted to let you know we were going to object to topic of a series of e-mails shortly before the homicide these family friends are e-mailing. Page 38 We're going to object to all these computer e-mails as not being relevant. THE COURT: Okay. MR. LANCE: And then the Defendant had his own web site on the web which, I guess that goes into the goth lifestyle topic, but there are certain topics -THE COURT: What about the e-mails? Let's stop for a second. (A discussion was had off the record.) MR. FRY:
I can finish in five seconds. We will agree to most of this stuff. I think it might be best that, should we believe it becomes relevant, that we both agree to approach the bench prior to inquiry of any of the web site stuff or e-mails, and we would agree to do that. It may be something relevant or not, but we will agree to approach the bench prior to any inquiry. We would ask the same. THE COURT: Same thing as the Epperson stuff, you're not going to get into it without approaching the bench first regarding e-mails or web sites? Page 39 MR. FRY: Right. It's hard to talk about foundation and relevancy in the obscure. We'll just agree to that. THE COURT: Do we have any other issues other than the lifestyle stuff? MS. CRAYON: Not that I can think of at this point. THE COURT: Okay. How many different things are we talking about lifestyle things? MR. FRY: Judge, I tell you what, we'll sit down and try to make a mutual list and then go over them all one at a time. I won't present anything to you then, but after being given to the defense attorney, we'll be able to -THE COURT: These are all the things that, A, all this evidence would come from Kelly Moffett, correct? MR. FRY: The mother as well and Justin Bruton's father. THE COURT: But all of this evidence would be oral testimony from witnesses that Mr. Lance is aware of, the issue is just whether it's relevant or not. Page 40 MR. FRY: Correct. MR. LANCE:
I'm concerned they would go beyond oral testimony to bring in photocopies of the web site that were printed on his web site. MS. CRAYON: There are things in the web site that discuss the homicide. So I don't know that that's something we're going to get into, but I'm saying it's just not a web site talking about antireligious things, but there is discussions of Justin's death and Anastasia's death and the crime itself and the Jackson County Sheriff's investigation. Those things are talked about on the web site. THE COURT: One of the things that is pretty key is the State needs to determine what of this you want to put in as your case in chief and what is it you want to put in based upon whether someone testifies the door is opened. You need to define this area of evidence in those regards, because my analysis is very different based on how you intend to use it. Page 41 So what I think you need to do is define that and define if there are exhibits other than oral testimony, define that. So I think you want to define with specificity, not only what the evidence is, both oral testimony -- what oral testimony, from whom, what exhibits and is it going to be offered in the case in chief or potentially being held back based on whether the door is opened. MS. CRAYON: Okay. THE COURT: And I think -- what I would like for you guys to do is get together and define that, and I'll find some time -next week to deal with these issues. Is that fair? MR. LANCE: Yes, sir. THE COURT: So why don't you guys define that, and then I'm picking a jury Monday in another case. Come see me Monday at a break and say, "We've got it defined." Once I buy some time Monday, I'll figure out either early in the day or late at night or something, we'll get together and resolve this issue on the record before Friday. Does that work? MS. CRAYON: Yes. Page 42 MR. LANCE: That works. THE COURT:
Thanks a lot. MS. CRAYON: I will also get the recording device we plan on using which is going to be kind of big. THE COURT: That's good. Thanks. (Court was adjourned until April 25, 2002.)
Pre-trial motions and rulings State of Missouri v. Byron Case April 25, 2002 Pages 43-132 Page 43 THE COURT: This, as we all know, is styled State of Missouri vs. Byron Case. It carries the CR number 20013527. Ms. Crayon and Mr. Fry are here on behalf of the people of the State of Missouri. Mr. Case is here in person with his lawyer, Mr. Horton Lance. The purpose of today's proceeding is to follow-up on some pretrial matters we began last Friday in anticipation of selecting a jury tomorrow and commencing the evidence on Monday. I talked briefly to the lawyers, and I'll tell you what I think we need to deal with and the order we would deal with it. There is an issue regarding these medical records that I have reviewed, and I'll deal with that. I should say medical records. I think there are actually -- should be described as records of Dr. Eaves, who is a psychological counselor to Ms. Moffett. Page 44 Then I want to deal with the issues of these tape recordings, and I have -- when I get to it, I have listened to the tapes and looked at the transcript, so I have already done that. And then I want to deal with the issue of the other-act evidence, this lifestyle situation that we started to talk about the other day. I think, Mr. Fry, there was some potential evidence that would be hearsay but for the co-conspirator exception, and my sense is it may be agreed-upon evidence, but we may want to address that very briefly if we could. I just want to make sure we're on all fours for tomorrow in terms of logistics. Are there other issues we need to talk about? MR. LANCE: No, Your Honor. MR. FRY: I believe that's it. THE COURT: Let's deal with these mental health records. (Court's Exhibit A was marked for identification.) THE COURT: Court's Exhibit A are the sealed records from Dr. Eaves regarding Ms. Moffett.
Page 45 I have reviewed the records. Without really -- I don't want to waive any privileges or really descend into the particulars of the records. I think the vast majority of the contents of these records are completely uneventful for these proceedings. I find nothing -- I didn't find anything in the records that were particularly -- that struck me as being consistent with the phrases that were alleged in the motions. And I didn't see anything in the records that I would suggest that, without some kind of very exceptional showing, would be relevant in either in direct or any kind of substantive evidence or in cross examination. And from what I know about the case, I just see nothing in the records that is particularly relevant. Page 46 So I'm going to show -- we're going to keep the records under seal and mark them as Court's Exhibit A, and I'm going to indicate that at this point in time, I don't expect either side to get into the issues of any speculation as to what are in the records, and I don't really see the necessity of even cross examination -- I think it would be irrelevant to cross-examine Ms. Moffett about the fact that she has received psychological counseling, because I don't see anything in these records that relate to this case in that regard. So that would be my intention, but I'll be glad to address it further. MR. LANCE: Judge, since we're making a record, is it my understanding then there is no discussion in those records of the nights of the event of the homicide? THE COURT: I did not see any direct discussions of that, no. I did not. Did you all expect there to be such or were you hoping there was? MR. LANCE: Well, like I said last week, she has told more than one story. I thought it would have been very curious if -THE COURT: Hold on. I marked the wrong -- instead of marking her records, I marked my cafeteria plan records. So let me go find them. The Court of Appeals would wonder why all these Walgreen records were relevant. Hold on a moment. Page 47 Again, Mr. Lance, I don't want to in any way waive what's in them, but I believe -- virtually everything in these records are very generic in nature. Okay? Now, for whatever it's worth, these records are in cursive writing, so I can't tell you that I can decipher everything that's said in these records. But I found nothing that directly even relates to comments about this situation. MR. LANCE: Oh.
THE COURT: By this situation, I mean the homicide. MR. FRY: Your Honor, could I ask for some clarification? THE COURT: Sure. MR. FRY: I think in the course of the trial that in particular, Ms. Moffett, the fact is really not disputed that she did get counseling, not only just for drugs, but for emotional-psychological concerns of hers. And to some extent, I think that it's relevant to explain like a three-year delay in reporting. So to some extent we believe that that should come out, the fact that she did have counseling, and we would bring that out. Page 48 Now, we still are of the position that details that are contained in this report, the lack of diagnosis and the lack of facts that are given to this particular counselor about the murder, you know, that's not coming in the specifics in these particular records. THE COURT: What was the date of the homicide; do we know? MR. FRY: October 22nd or 23rd of 1997. She did not come forward until 2000. To give you some perspective on this, in that course of three years, she is going through drug counseling and she is going through psychological counseling. I would concede that some of that is relevant to inquire by the defense as to the nature of her ability to remember things like that. THE COURT: It seems to me it's fair game for you to -- my understanding is that one of these things that this young woman would say is that she grappled with drug abuse, as I understand it, and I'm not playing this out, but conceivably that could have some relevance to her credibility, I suppose. Page 49 If you're going to inquire about the fact she sought counseling in general and, if she wants to make the statement that she sought it in part because of the demons she was dealing with as relates to this case, if that's the extent you're talking about, I don't see a big problem with that. MR. LANCE: I think we would be able to do that and keep it limited.
MR. FRY: I would agree with that. THE COURT: But I don't want you to represent that she -- I don't recall -- again, I'm trying to not waive any privileges here, but from what I read of these records, if she is going to suggest that she got into very specific privileged communications with a psychologist over this, I don't think the records bear that out. MR. FRY: That's not the case, Judge. It's more in general and, if we bring that up in general, my concern would be we're not opening the door to go back and disturb your ruling here. Page 50 THE COURT: Well, to make it simple, nobody is getting the records and they're sealed and the Court of Appeals can look at them. I did not find anything in the records that was consistent with the pleadings that Mr. Lance filed and that's not -- I'm very confident they were filed in good faith. I'm not questioning that. But I didn't see anything that struck me as a direct reference to credibility. So the records will stay sealed, and other than the fact that she had counseling for drug abuse and/or other matters, I think the issues are pretty much closed except for that, and this will be with the case. So, if the Court of Appeals wants to take a look at what I did, they certainly can. Okay, Let's talk about this co-conspirator stuff. I believe it's agreed upon, but do you want to describe the posture of it? Somebody? MS. CRAYON: Yeah, Judge. I'll be glad to. Page 51 Justin Bruton is a young man who was present during the homicide, and according to the testimony that we expect from Kelly Moffett, our main witness, that he was conspiring with the defendant prior to the homicide for the homicide being committed. We expect Kelly to testify to statements that Justin made to her and to Mr. Case during the period shortly before the homicide regarding the plans and who was going to do the shooting and how they were going to do it. There will also, we expect, testimony from Francesca WitbolsFeugen who is the sister of the victim who received at least two telephone calls from Justin Bruton, one before and one after the homicide. We believe that those are relevant and should be ruled as co-conspirator statements, allowed to overcome the hearsay objection because they go in furtherance of the conspiracy. So our position -- and there is law to support -- that anything that shows the plan of the conspiracy, the event that occurs as a result of the conspiracy, and anything said by Justin Bruton to further the conspiracy all become relevant and admissible over the hearsay objection.
Page 52 At this moment I can't think of anybody else, other than those two witnesses, who would be testifying about what Justin Bruton said. THE COURT: Okay. Are you familiar with these statements? MR. LANCE: Yeah. We're not going to argue against that. THE COURT: Either of those statements? MR. LANCE: Right. Just so you know where the defense is coming from, I haven't analyzed that all through the hearsay objection and all that. Defense is simply taking the position they have a right to explain their side of the story and give the jury the full picture of what they claimed happened that evening. If that includes Justin said so-and-so, I don't plan to object to that. It leads right up to the homicide. THE COURT: Since there is not an in limine motion, I'm not going to prospectively rule on it. But it seems to me there is not going to be a bone to pick about it. Page 53 The way it's represented to me, it seems to me the statements Justin would have made to Kelly Moffett and/or the defendant, there might likely be a co-conspirator exception. I think the analysis would probably be different to someone that was not part of the conspiracy. The evidentiary analysis might be different -- good bit different. But I sense that Mr. Lance is not going to resist that evidence. So I appreciate the head's up on it, and just if the posture of it changes, let me know. Let's talk about the tape recording conversations. What I did was, as I recall, the last time it was represented to me there were two phone conversations between Ms. Moffett and Mr. Case and that law enforcement had generated transcripts of those tape-recorded conversations. Mr. Fry gave me two tapes of two transcripts and they're identified for my purposes as tape I and tape 2. I don't know if you intend those to be exhibit numbers or not, but anyway, I looked at tape one and tape two, and I have them here. I have the actual tapes here. Page 54 The tapes reference the date of the conversation, and they are attached to the transcripts that I reviewed. I reviewed both of them, and my impressions -- let me give you my impressions and we can figure out what kind of record we need to make. Okay?
Obviously, in terms of typical evidentiary foundation, like chain of custody, the magic words "is a machine capable of recording a conversation," you know, has it been unaltered, I don't know the answer to those questions because I haven't heard any testimony about it. First of all, I found the transcripts to be accurate -- to be exceptionally accurate. I also would suggest that -- when I listened to it, it was on this device that Mr. Fry had given me. It's basically, for lack of a better term, what I would call a quality -- I was going to say ghetto-blaster -- but a quality, you know, the thing you plug in -- the thing you listen to for both radio and for tapes and CDs and things. MR. FRY: Sony tries to call them "portable stereo systems." Page 55 THE COURT: Okay. MR. FRY: I did comply with your wish to bring the system we intend to use in court. THE COURT: When I heard it, I was right next to it, so that might have some bearing on it. When I heard it obviously, I suspect it's because the recording device was on Ms. Moffett's phone I assume. Ms. Moffett's voice is very clear and distinct. Mr. Case's voice is not as clear, is much softer and harder to understand, although I was able, with the aid of the transcript, I was able to understand what he said. I also found that, as I said, the transcript was accurate. It would be my belief any trial such as this, the transcripts themselves are not evidence. They are to aid the jury in listening to the evidence, which is the tapes. I believe that's the proper way to deal with it. That's my experience how it's been done. If, in fact, they were used, I would gladly give an instruction to that effect. Page 56 It's obvious from these tapes -- it appears to me from these tapes that Ms. Moffett on both occasions is calling Mr. Case desiring to talk to Mr. Case. And the drift I get of it is that she is being approached by law enforcement or other folks to want to ask further questions about this matter and it's causing her a great deal of emotional distress over it and that she wants to talk to Mr. Case about it. The transcripts themselves in the context of all the evidence, I suspect, could be considered an admission against interests to Mr. Case, although I don't find any smoking guns or anything that's directly -I don't find any direct admissions. But the posture of what's said by Mr. Case on these tapes in the context of all the evidence I think theoretically would be an admission or at least might well be admissible once Ms. Moffett is examined to demonstrate contact she has and concern that she has. And I suspect that, again, her own testimony talking about what happened -- or at least her version of what happened, and the events combined with the tapes, I would suspect in an evidentiary sense these statements by Mr. Case qualify as admissions against interests. Page 57 The transcripts are very accurate. I mean, there is no admission, "Yeah, I killed somebody" or anything like that on these tapes. So that's what I get from the tapes themselves.
So, Mr. Lance, I think you're the one that had the concerns about them and wanted to address them. So I can tell you my homework is what I have just said. That's what I believe these tapes demonstrate. But you have some concerns, so feel free to address them, and I'll make any pretrial rulings I can. MR. LANCE: Judge, I think you're addressing my point. In paragraph two, I'm talking about it can be argued they're irrelevant. I think you're already discussing that. In paragraph three I talked about the quality, but you're about to make a finding they're fairly good quality for these tapes. So I don't know what else I could add. Page 58 THE COURT: There is other foundationals that someone has to make. I assume someone is going to make that. I believe the foundation is something like this, the person would have to testify that this was a tape recording; that it was made on a machine capable of recording voices; that the tape was unaltered; and the tape has been kept in some kind of chain of custody. Am I pretty close to that being the foundation? MS. CRAYON: Yeah. The only thing I would add to that, Judge, in the cases Mr. Lance even cited, it shows the State is not required to show a hand-to-hand custody; that the State must only prove reasonable assurance that the evidence was not tampered with and we can do that. The reason I bring that up is because there was an attempt, as I have explained to Mr. Lance, to enhance the tape so that the quality was a little bit better. So it was sent to a person down in Springfield who does that sort of work, and it was sent back. And you've been presented with those. It really didn't help. I mean, we are left with the same thing we had before. They weren't able to enhance them. Page 59 So the tapes themselves had been moved from place to place, and we do have the chain of custody document, but I would suggest that we don't need to bring the person in from Springfield to testify about the condition of the tapes and how he got them, et cetera; that, if we can show they have not been tampered with, and we are prepared to have Kelly Moffett listen to the whole thing, say if it's a fair and accurate representation, it hasn't been adjusted, this is exactly what we said when we said it when the tape was made. THE COURT: I suspect that gets over the hurdle. Now, the one thing -- in fairness to Mr. Lance, the one thing I didn't do -- I don't know that this would affect the legal ruling I would make. As I said, I was sitting at a table with -- so whether or not -- if you want me to listen to them and have them on the box and me sit in the jury box to get some sense of what the jury would -- I mean, Ms. Moffett's voice is very clear. Page 60 Mr. Case's voice is somewhat faint -- and sometimes very faint, okay? But I find it audible, and it seemed to me it was audible. MR. LANCE:
Judge, I don't have any additional requests. I think you bent over backwards with the work you're already doing. THE COURT: Well, all right. I'm going to allow you to make any objection at the time, and I expect them to lay a foundation, but in terms of an in limine motion, I do not intend at this time to exclude the tapes. MR. FRY: Judge, if I might be able to withdraw the exhibits for purposes of our record here. I put exhibit stickers on these and did not put a number. But for our record, in regard to tape number one, I'm going to make that Exhibit No. Ten. I'll mark that regard to the tape that was marked tape two, I'm going to identify that as State's Exhibit No. Eleven. And we'll just have those initialed and marked later, assuming we get the proper foundation. Page 61 Now, for me to understand when we do this, assuming we make the proper foundation and play this for the jurors, we will have extra copies of these transcripts to hand out to the jurors as they listen to it is my intention. THE COURT: I think the way to do it, assuming it's admitted into evidence and you make the foundation, basically, you give each juror a copy of the transcript, and then I think I would propose to give the jury an instruction something like this: "Ladies and gentlemen, the tapes have been admitted into evidence. These transcripts are not evidence. They're only provided to you to assist you in understanding the evidence winch are the tapes themselves. If you believe there is an inconsistency between the tapes and the transcript, the evidence is what's on the tape, not what's on the transcript." Then, basically, they listen to them and then we, basically, pull the transcripts back from them and then that's the evidence. In other words, it's just like any other testimony. Page 62 Now, the issue -- what sometimes does happen is the issue comes up as to can they re-listen to the taped conversations. Like in deliberations. That's an issue that comes up and, basically, I would approach it in one of two ways, and I haven't gotten there yet. One way would be to say, no, you can't. You need to listen to it now, and that's the deal. Or secondarily, if they listen to it, it would be in a controlled setting. In other words, I would bring them back down. We would pass out the transcripts. They would listen to it in our presence. All right? And then we would then -- when they're done, we would take the transcripts back from them. I'm not going to leave transcripts and a recording device up there for them to listen to it. I'll bring them back down and let them listen to it. The issue, basically is this: Whether or not you consider this evidence to be an exhibit that can be analyzed by the jury or whether it's testimonial in nature, if it's testimonial in nature, then you cannot -- I don't believe you can have them listen to it again. If it's considered to be an exhibit like a confession, for example, then I think you can. Page 63
And I suspect these would be capable of being re-listened to. But I haven't looked at the cases, and I haven't crossed that bridge. But I can assure you, if there is a request to replay them, I'll allow you to make any record you want to make. I'm not just going to send the tapes up with transcripts. We'll bring them back down, and we'll listen to it with the door locked and all of as being present. MR. FRY: In an abundance of caution, Judge, I think I should go ahead and mark the transcripts that we provided to the Court for your review on this issue. THE COURT: That's fine. MR. FRY: And what I'll do is, when we conclude, I'm going to mark the transcript for tape one as 10A and the transcript for Exhibit 11 as 11A, and I'll do that after we get a break here. Page 64 THE COURT: All right. Do you have some sense, Mr. Fry or Ms. Crayon, as to the total number of exhibits you intend to put forth? MR. FRY: A lot of it will have to do with some rulings you're about to make. THE COURT: - when we get done, because Nancy and virtually everyone in this courthouse uses a sequential system, we assign you a certain set of numbers. Say like, if we assign you, for example, one through 40, that means Mr. Lance's first exhibit will be Defendant's 41. We'll do that when we get done. Okay? All right. Other than talk about logistical issues and other act evidence, have we covered everything? MR. LANCE: I think so. THE COURT: On this lifestyle other-act thing, I think for me to understand it, what I need for somebody to do is to -- first of all, just give me a real flavor of what the case is about from the State's point of view. Page 65 I think I have a sense of it, but describe the evidence to me, from the State's point of view, so I understand fully your theory of the case and what happened, and then we'll talk individually about the various things you want into evidence. But I don't think I can do this in a vacuum.
I understand Ms. Moffett was an acquaintance and friend and associate of Mr. Case. That's what I've been told from these hearings, and that this fellow that committed suicide was -- this Justin fellow that committed suicide, I understand to also to have been an associate of theirs, and this young lady who died, who was killed, I believe to be an associate of theirs also. She was found dead and the crime was unsolved for a period of time. And then, substantially after the fact, authorities had contact with Ms. Moffett. Ms. Moffett gave statements which formed the thrust of the case before the Court. Mr. Case, much after the fact, was arrested for the homicide and that I believe it's been stated that Mr. Case and some of his associates followed what's been described as a goth-like lifestyle, which I have almost no understanding of what that means. Page 66 So that's about the gist of what I know about this lawsuit. So I think before we get into the evidence I'm going to let in and what I'm not going to let in, if you could give me a flavor of -- I don't want to say a mini opening statement, but a beginning-to-end of what we got and your theory of the case, that would be helpful for me to deal individually with each one of these items. The other thing is clearly there is another factor here, is that, on some of these things, I'm just throwing this out, the factors that I don't have before me is what Ms. Moffett will say on direct, what's asked of her on cross examination, whether the defendant is going to testify and, if he does what he says. Because all those, obviously, are factors that could be pretty critical in any evidentiary issue. So, if you could lay that out, the State's theory of the case so to speak, in some kind of sequential fashion, and we'll jump into this other-act stuff, if that works. Page 67 MS. CRAYON: I'll do the best I can here. I think one place to start would be to give you an idea of the relationship between these associates. Essentially what we're talking about is two young women and two young men. One of them is the victim, Anastasia WitbolsFeugen. She is the girlfriend of Justin Bruton who ends up committing suicide the day after this murder occurs. THE COURT: What's Justin's last name? MS. CRAYON: Bruton, B-R-U-T-O-N. The other two young people involved are the defendant, Byron Case, and Kelly Moffett, who is the State's main witness. In October of '97, Kelly Moffett and Byron Case were dating and had been for approximately six months. Kelly was 14 years of age at the beginning of their dating and turned 15 one week before the homicide.
Byron Case was 18 at the time they started to date and 19 approximately a month after the homicide. Anastasia WitbolsFeugen -Page 68 THE COURT: That's in '97? MS. CRAYON: That's in '97, correct. Kelly Moffett is now 19 years old. Anastasia, the victim, was 18 years old at the time she was killed. She and Justin Bruton had been dating for approximately six months as well. Anastasia and Justin had lived together over the course of the summer before. Anastasia had just graduated high school in May or June and moved in with Justin. They lived together in the condo on the Plaza that Justin had from his parents. Justin's parents provided all of his financial needs: his car, his tuition to school, his condominium, and the condition was that he stay in school. Towards the end of Justin and Anastasia's relationship, which is just prior to the murder, I'm going to say probably end of August, early September, there is break up. Get back together. Break up. Get back together. And I expect there is going to be testimony throughout the trial that was the course of their relationship at the end. Page 69 Anastasia was very much interested in keeping the relationship going and pursued it constantly and did some of that through this defendant. Called him constantly. Wanted to talk to him. Wanted to know what Justin was doing. THE COURT: Your evidence Mr. Case and Justin were good friends also? MS. CRAYON: Yes. And the relationship with Mr. Case and Mr. Bruton was close. Mr. Case stayed at the condominium quite a bit and over the summer these four kids spent lots of time together. So they all knew one another fairly well. Briefly touching on this goth lifestyle situation, all of them hung out in, these coffee houses down in Westport. Of the four, I expect testimony to be that Mr. Case is the one who subscribes to this goth-like lifestyle more than any of the others. Justin Bruton, as far as appearances we planned to introduce to the Court, proposed an exhibit of just a photograph of Justin Bruton. And the testimony from other people, Kelly Moffett, Anastasia WitbolsFeugen's sister, the rest of her family members that may testify, khaki pants. Page 70 Looked like somebody out of The Gap ad. So Justin's appearance was something like that.
Mr. Case, I expect the testimony would be, should it be allowed in, is dressed completely in black. Never had any sort of color on him at all. Wore white makeup, powder on his face, black eyeliner around his eyes, and that was all the time. Occasionally he would change that and it would be red eyeliner, black lipstick. Very goth-like. And I understand we need to probably get into that. I am not familiar with the goth lifestyle situation either. Ms. Moffett would probably be the person we would look to give us some idea of that. Her appearance, other than being fair skinned herself without all the makeup and the dark hair, and she wore black too, I don't think there is anything further that identifies her to the goth lifestyle. Page 71 She would testify that Byron Case's interest in music, in books, literature, things, were very dark. He was extremely judgmental towards anybody who had any kind of religious belief whatsoever, no matter what it was. THE COURT: What do you mean by dark? MS. CRAYON: That's how she describes it. To be honest with you, Judge, she has given me names of books and types of music that I don't identify with. I don't know. But very into like -- well, I don't want to say. THE COURT: You mean dark as in the color dark or dark could also mean evil. MS. CRAYON: Dark, evil, is where she is going with it. She is the one who told us about his screen saver that's an autopsy, and he thought that was a really cool thing. He would go to web sites of people who were murdered or killed and was interested in looking at that stuff. Thought it was neat. They liked to shock people. They liked to confront and argue with people over things that went towards your belief system if it was not the same as theirs. Page 72 When I say they, he had a friend named Abraham Kneisley who may be coming in to testify. He's been endorsed by the defense. Ms. Moffett says those two together, both, exuded that kind of attitude. When they were in Westport, for example, she would say the attitudes were that certain people mattered and other people didn't. Certain people deserved to live and others didn't. Those were the expressions that they would use and the way they treated people with such contempt. They would walk around in Westport with priest collars on and act in certain ways to shock people. That's what Kelly Moffett would testify to. THE COURT: Like what would they do to shock people?
MS. CRAYON: I didn't ask her the specifics. If we intended to get that -THE COURT: Okay. MS. CRAYON: A lot of it was just in the appearance, to walk around like that and make anti-religious type comments is kind of where she went with it. Page 73 I didn't ask her for the specific comments, which leads us into some of the other things we showed you photographs of that we did have, which were photographs of the Defendant's cars that he drove at the time and the license plates that he had for his cars were MORBID and ATHEIST. The bumper stickers, some of them were shocking to certain different types of people. The "Honk If You Need An Abortion." "If you can't feed them, don't breed them." "Got mine, up yours." And the Sisters of Mercy, which was another one, which was apparently a band, which kind of subscribes to this goth thing, as I understand it. There is one on there that says, "Evil." There is one on there that says, "I am God." Some of these we understand probably are a little bit more probative than others. "Ich bin Ich," which was the German saying that was on there as well. We have talked a little bit about that earlier and how that may be relevant as well. At any rate, that's the relationship of those four people and how they all came to be friends and got to know each other. Page 74 It's important I think too to give kind of some perspective to Kelly's position in this whole thing. I mean, her age, which she'll be testifying to that. When she began to see Mr. Case, her parents didn't want her to. I mean, forbade it. Her testimony would be that on the day that it was forbidden, he came and picked her up in the middle of the night out of her house, took her to Justin Bruton's condo where they hid out for a week while Kelly's parents, who we think they may be testifying too, the mother; that they had to hire a private investigator to try to find Kelly. And when they did, she was with him in Justin Bruton's apartment, and the Defendant had cut all her hair off and died it black. Again, this is at age 14, and Kelly was allowing him to do that as well. So it wasn't like he was holding her against her will and all of that. But all these things and the fact that he wanted to change her appearance to make her look more in the goth-like situation. THE COURT: Okay. Page 75
MS. CRAYON: Our theory in how that may fit in is one to go to his identity. When she testifies, for her to sit here and say that's the guy who I dated in 1997, he doesn't look like that. I mean, Mr. Case -- I don't know how he's going to dress for trial, but I'm sure he's not going to come with face makeup and all black clothes. For her to look at him and say, "Yeah, that's him, but that's not what he looked like back then," to allow her to describe what he looked. For one, this is how he looked when the homicide occurred. I think anything less than this misleads the jury to think this is what he looked like at the time. We deal that all the time when we try criminal cases. But also, to give some sense to her testimony, I mean, I think what we're, getting into is whether or not we're tying to get into character evidence. I do understand that argument. While this may look like character evidence, we are not trying to introduce it for the purpose of saying somebody who wears this kind of makeup and dresses like this and subscribes to this belief is the type of person that would commit this murder. That's not why we're trying to get it in. Page 76 We're trying to get it in to give context to Kelly's testimony, which is going to be that he is the one that was the shooter that night, and the reason he was the shooter was because, I expect her testimony to be, Justin said, "I can't do it," so Byron has agreed to do it. And during the course of the evening as well as prior to, he had made comments to Kelly that he wondered what it would feel like to kill somebody. She is going to testify he says that in the car right before the murder actually happens. Because she says that she is sitting there going, "You're really not going to do this. This is stupid. It's broad daylight. It's Justin's girlfriend." And he just says, "I would like to know what it would feel like to kill someone." Something along those lines. That's not a quote. Page 77 So we're not trying to show he is the type of person that would commit the murder based on his appearance or religious belief or lack of religious believe; instead, it supports his state of mind at the time he's doing this and why he's the person who pulls the trigger according to Kelly. THE COURT: I understand why you want to get it in, bat tell me the facts of what happened. What is she going to say? Describe the -MS. CRAYON: How it happened? THE COURT: Yes. Describe the events that both led up to and the homicide from Ms. Moffett's point of view and the State's point of view. MS. CRAYON:
On that day, she comes home from school. Justin Bruton and the Defendant pick her up at home, and they're going to go hang out. After she gets -THE COURT: Stop for a second. Is Justin Bruton into this goth lifestyle also? MS. CRAYON: No. Justin dresses like he's from The Gap; however, I have asked her what attracts these two to be such good friends. Page 78 She says, well, Justin had a morbid sense of humor, and they kind of liked the same weird kind of movies. This is the specifics Kelly is giving me, but they don't share the dress and how they express it. THE COURT: Okay. MS. CRAYON: And also she is going to testify -- and I'll throw this in too -- that they Justin Bruton and the Defendant in the past had had these schemes of things they were going to do. One example she gives us, they were going to go rob Justin's parents down in Oklahoma. They were going to commit an armed robbery down there. Did it ever come about? No. They talked about it. Anastasia was in on it a little bit. It was all talk. They never did anything about it. Second one was Justin Bruton and the Defendant planned to blow up -- in the way Kelly describes it as the big church with the spiral on it or something out in Independence; that they were going to put a plastic explosive in the spiral or something like that, and they were going to try to get some ransom money and talked about this idea of blowing up the church, which lent itself to this anti-religious thing as well. Page 79 And Kelly said they would talk about stuff like that and then they would never do it, which again, those things would explain why she is in this car during the day, and I'm going to tell you the events, but Kelly says, while they're talking about this homicide, she just doesn't believe they're going to do it. They used to talk about doing wild things and never followed through. So we're going to be seeking to get those things in which would be considered prior bad acts; it's not criminal activity. THE COURT: Okay. MS. CRAYON: That day they pick her up After she is in the car a few minutes, they start talking, and the conversation she says is initiated by Justin Bruton. And Justin makes some comment about "Kelly, what do you think would make my life easier if they weren't around" or something like that.
Page 80 And she says, "Your parents?" And Justin says, "No." And then she guesses Anastasia because of all the relationship trouble that has been going on. And he says, "Yeah, wouldn't it be better if she wasn't around anymore." THE COURT: Justin says this? MS. CRAYON: Justin says this. Which is the co-conspirator statement. And she says, "Well, I guess." And her interpretation is he is going to break up with her for good. She is not able to tell you exactly because she says both of them participate in conversations who says what, but one or both of them participating in the conversation tell her, "We're going to kill her," and Justin at that time says -THE COURT: Mr. Case and Justin say this. MS. CRAYON: Yes. To Kelly in the car. That they're going to kill her. When she says, "What are you talking about? You're acting crazy. Of course this is never going to happen. You're full of it. Like all other plans you have made, you won't do it." Page 81 And Justin says, "Well, I can't actually do it, but Byron said he's going to do it for me. And Byron agrees, "Yeah, I am going to do it." Kelly asks, "You don't even have a gun. How are you going to do it?" "We're going to shoot her." "You don't have a gun. What are you talking about?" "Yeah, we do. It's in the trunk." "You don't even know how to shoot a gun, Byron," according to Kelly. Byron says, "Yeah, I used to go hunting with my dad. I know how to use a gun." And Kelly says she never saw Byron Case with a gun before. She never saw Justin Bruton with a gun before. So they have this conversation back and forth. "We're going to meet her. We want you to call her and meet us at the Dairy Queen." They're going back and forth. She is saying, "It's broad daylight. You guys are never going to do this."
Page 82 She does call Anastasia and her testimony is she spoke to her and agreed to meet at the Dairy Queen, which is across from Mount Washington Cemetery. THE COURT: On Truman Road. MS. CRAYON: On Truman Road. Kelly's testimony will be they did drive out there together. They did pick Anastasia up from the Dairy Queen. They did go into Mount Washington Cemetery. Prior to picking Anastasia up, they talked about taking her to a secluded spot to do this. They stopped in front of the Nelson Mausoleum in the cemetery, and that Justin and Anastasia get out but the caretaker comes up, starting to get dark, puts his lights on. They get back in the car and leave the cemetery, all four kids. And the caretaker is able to corroborate and identify Justin Bruton's car by his license plate, et cetera. Kelly's testimony -THE COURT: At this point in time no one has been shot? MS. CRAYON: No one has be shot. Everybody is back in the car. Page 83 No one has seen any guns and no more conversation of it once Anastasia has gotten in the car. They drive around, and according to Kelly, "Let's go up this road. This is going interesting here." Because they're looking for a quiet place for Justin and Anastasia to have a talk about their relationship. They go up into what turns out to be Lincoln Cemetery. Kelly doesn't recognize it as a cemetery for reasons that are pretty obvious once you see photographs of the area. All the headstones are down into the ground; it looks like a park. THE COURT: Is Lincoln Cemetery part of Washington? MS. CRAYON: No. It's adjacent down the street and up hill. THE COURT: Okay. MS. CRAYON:
They go up in there and that's where the homicide occurs. And Kelly's testimony is going to be this. Anastasia and Justin get out of the car. They're standing on one side of the car and that her and Byron are sitting in the back seat, kind of having the same kind of conversation. And he says, "I'll be right back." Page 84 She is going to say that Byron got out of the car, popped the drunk, got the rifle out or the shotgun, whatever it is, and pulls it out and points it at Anastasia's head and shoots. She says, just prior to that, Justin tries to stop it. He's yelling and that's where this "Stop, don't do it," and the German words are being exchanged. And then Byron yells for Justin to get back in the car. And she is going to describe the emotional state of Justin and, in contrast, the Defendant was extremely calm and collected and wanted to make up this story about how -And then they spend some time together talking about what they're going to say. And she is going to testify the Defendant got rid of gun. Doesn't know exactly where. She is going to give a description of what she remembers. Page 85 The Defendant and Justin both sort of come up with this story and they're running it past her. "Do you think you would believe this about Anastasia getting out of the car after she is mad at Justin Bruton?" Which is the story that's delivered to the police the day after the body is found. THE COURT: When you say it's delivered to the police, do the police just naturally go talk to these kids because they know they were associates of Anastasia? MS. CRAYON: Anastasia's body is found at 3 o'clock in the morning. She is killed in the early evening of the 22nd. Her body is not found until about 3 or 4 o'clock in the morning on the 23rd. She has no identification on her. Nobody knows what's going on. There has been some phone calls between -- as I explained earlier, Justin Bruton and Anastasia's sister, because once the story is made up, they take Kelly home, because she has school the next day. So they're taking her home and they're giving this story to the mother, Kelly's mother, and Justin Bruton gets on the phone and gives the story to Francesca WitbolsFeugen that, "Anastasia got mad. Got out of the car. I haven't seen her. Has she come home yet?" In furtherance of this conspiracy. Page 86 THE COURT: They actually initiate the contact with these folks? MS. CRAYON: Yeah. Justin and -THE COURT:
They as in Justin and Kelly. I don't know if Mr. Case does or not, but knowing that Anastasia is going to be missing, they contact members of her family and/or other folks to sort of start covering their tracks. At least that's your theory. MS. CRAYON: Exactly. The story has been given. So once Anastasia does not come home, her family is reporting her missing. Then the conversations with Justin come out through the sister, and that's how the police end up realizing who Anastasia was with last. And they start looking for Justin Bruton. They can't find him. By now they found he went over to The Bullet Hole in Overland Park, purchased a shotgun and put himself against a building in De Soto, Kansas, and killed himself. Page 87 THE COURT: Shortly after this event? MS. CRAYON: Yeah. He's not discovered until, actually, Saturday morning, and her body is discovered early Thursday morning. However, there are some things that the Johnson County Sheriff's Department is going to be able to testify to that lead them to believe he's been there a day or two. THE COURT: Okay. MS. CRAYON: And the purchase of the shotgun that he uses that is found with him at the suicide site and the receipt for purchase of that gun, all of those things are found in his car which is the car that the caretaker sees them in and Kelly says they're driving around in at the time of the homicide, they're all there. THE COURT: That gives me a flavor. Let me ask you a couple things, and I'll hear from Mr. Lance. I want to do this in an organized fashion. The gist of what Ms. Moffett -- first of all, this discussion about killing Anastasia, did it begin in this car ride? Was there discussion about it prior to that time? Page 88 MS. CRAYON: Ms. Moffett is going to say they said they had been talking about it all day. But her hearing of the conversations starts in the car. She can say I heard them starting to speak of it in the car, but their conversations included comments like, "We've been discussing this all day." THE COURT:
So when they're in the car, and they say they've been discussing this all day, that's the first time Ms. Moffett knew of this plan? MS. CRAYON: That's correct. THE COURT: And Ms. Moffett is going to say that, in the context of -- potentially the context of the lifestyle that Mr. Case was somewhat involved with, is that this idea of shocking people and discussing violent acts, morbid things at length, and then never doing it, was common occurrence? MS. CRAYON: Yes. THE COURT: So her thinking that they were talking about it, going out someplace, acting as they were going to do it, and false start and then assuming they were going to false start what tamed out to be this homicide would be consistent with prior events she witnessed with Mr. Case? Page 89 MS. CRAYON: Yeah. I want to make sure it's clear for you, I don't think Kelly would be able to testify she has heard them talk about wanting to murder other people. THE COURT: I understand. Now, what I would like for you to do, Mr. Lance, in a sequential fashion, the next thing I'm going to ask them is what they want to get in, specifically. What I might ask from you in terms of -- without ruling on anything as to what the jury is going to hear, is her rendition of the -- from your understanding of discovery is, Ms. Crayon's rendition of what her evidence and what her theory is, is that how you understand it? MR. LANCE: Yes, sir. THE COURT: Next I want to find out what they want to get in. But, if you want to say something, go ahead. MR. LANCE: I would like to respond to it so you understand what the defense will be. Page 90 THE COURT: That's a good idea.
MR. LANCE: The defense will be, and this has been the Defendant's version from Day One when he was interviewed by police. The four young kids are in the car together. There is a couple in the front seat that have been dating on and off, and that's Justin and Anastasia, the victim. And Justin who committed suicide. The couple in the back seat is Byron and Kelly. So you have the four kids in the car that night; that's not disputed. The defense will be, that these four kids, after they leave Mount Washington Cemetery, they're headed back to the Kansas side. As they leave that area of Independence, they arrive at a stoplight where Truman Road hits I-435. There was an argument between the couple in the front seat. They had had this tumultuous relationship that continued that night, and one of the last comments was something like, "Don't you love me?" Between the girl and the guy. The girl was saying, "Do you love me?" Page 91 And the guy says something generally like, "I don't love you. I don't know why, but I don't love you." At the stoplight she then gets out of the car in a fit and walks off, heading the opposite direction back towards Independence where her home is. THE COURT: That's Anastasia? MR. LANCE: Yes, the victim. THE COURT: This is roughly at the intersection of Truman Road and I-435? MR. LANCE: Yes. Exactly. There is a stoplight there. THE COURT: Which is less than a mile east of Washington Cemetery? MR. LANCE: Right. Less than a mile from the spot where she is found dead later.
The defense will be the other three teenagers drive off in the car, and they have never seen her since and don't know what happened to her. And it's basically an unsolved homicide. They never saw her again after she stormed away from the car. THE COURT: Okay. Page 92 MR. LANCE: And Byron, who was interviewed repeatedly, sticks to that story. Kelly is interviewed by the police and says the same story, and Justin commits suicide before anybody could interview him. So the case goes on for three years, and then Kelly comes forward and changes her story and says, "I'm going to come clean. This is what I saw happen that night." Well, being as you've heard the State's side of it and being that's our defense, which we're sticking with, we think the areas that they're trying to go into, this goth lifestyle, is really just an unfair character attack and an attack on Byron Case's character. As far as the goth lifestyle, you have made comments it's really not clear. I don't think it's really clear to anybody. In Kelly Moffett's depo, I asked her if she considered herself a goth. She said no, she wasn't really a true goth. I've had that discussion with Mr. Case with the same response. "I wasn't really a true goth." Page 93 THE COURT: Why don't you enlighten me as to what a goth is or can you help me? MR. LANCE: To me the gothic refers to either 17th or 18th century. There is gothic architecture, for example, has that name, It's a very dark mood, vampire story. The literature to me would imply stories about vampires or Frankenstein or terrible tragic love stories like Wuthering Heights and poetry, stories from that time, 17th, 18th century, when gothic architecture was popular. I think the State is conceding Justin Bruton dressed in khaki pants and Izod shirt and didn't act like he was into it, and the people that are here still living saying he wasn't really a goth either. So I don't think we have anybody saying they were a goth. I just think the reason I think they're going into it is to paint the Defendant in a bad light because otherwise I think they're just flat concerned the witness won't be believable. THE COURT: I don't want to cut you off. Did you have something else you wanted to say? Page 94 MR. LANCE: I tried last night to find some cases. I couldn't find anything good on point, but there are some general cases that talk about we don't like to generally go into the character of the Defendant.
I brought one, just a short blip out of the book called Missouri Evidence Restated. It mentions the general prohibition on -THE COURT: Let me ask you about something in the generic. I'm going to reveal my thinking, and this will sound disjointed, but I think it will get us someplace, maybe. Let's assume that I were to accept the fact that for them to just put on evidence that Mr. Case acted what some people would describe as strange or weird and listened to different music and wore black and had offensive bumper stickers and all these kinds of things, that this would be -- this is character evidence and shouldn't be injected into the case by the State. Page 95 Assuming I buy that argument, they'll put on Ms. Moffett She'll testify as to what happened. I mean, all this stuff about them getting together, Byron killing her, all this kind of stuff. That's going to happen. Then, clearly, since, as I understand it, she is the linchpin of their case, I think they have as much as said that, if I'm not mistaken. So knowing the skill of your advocacy, you have and will continue to think of ways to effectively cross examine this witness, and one of the things -- it seems to me, her credibility will be challenged. One of the things that could conceivably be challenged is this story sounds too crazy. Okay? Then at that point in time, the idea of driving around in a car and thinking of weird, bizarre, violent, awful things to do is that one could suggest 14-year-old kids don't do this. The fact they have done those things before without culmination might well become relevant after you cross examine this young lady. MR. LANCE: Judge, I don't plan to object to that topic. But I think that can be mentioned without calling somebody a goth or talking about their religious preferences. Page 96 THE COURT: Okay. Well, you understand the generic thing I'm saying. Much of what they're telling me, it seems to me, if I kept it out, it would come in immediately after you cross examined this young lady, it seems to me. MR. LANCE: I guess I disagree with the characterization of much of it. If she wants to say they had these crazy stories about blowing up a church, and I guess that's her story, and I'll ask the Defendant if he wants to testify and deny it, but I think much of what they're going into is way off topic. Religious preference, that's really offensive as a defense attorney to hear about that. This is the last case I'll give you. This isn't any means on point, because this was a child sex case. This was a reversal where they locked out character evidence. The quote, what I put the yellow tab on, stated another way, "A jury is likely to penalize the Defendant because he's quote/unquote a bad guy." I think that's where we're headed with this character evidence; he's an atheist or bad guy. Page 97
I already told you the last week about Dr. Friedlander, who is a pathologist. Maybe people think he is weird too. He's fascinated with death. He studies pathology. I think there is a huge leap, someone with religious beliefs to he's a bad guy, so he must be guilty. THE COURT: Rather than respond to his argument, do you have some enumeration of the things you want to get in and through whom and what they are? MR. FRY: We do. THE COURT: Let's cover that next. (A recess was taken.) THE COURT: I think we were at the point where we were going to ask the State to enumerate this various evidence; is that where we are? MS. CRAYON: I'm going to do that the best we can. One is the Defendant's appearance itself, the pictures of what he did look like at the time that this happened, which would include the face makeup and the dark hair and the dark clothing, et cetera. Page 98 I anticipate that, if we're allowed to get into that, not only would Kelly be able to testify to that's how he looked then, but Francesca WitbolsFeugen would be able to. If we call Justin Bruton's father, he has contact with the Defendant and Kelly Moffett Friday and her body is found on Thursday, and Justin Bruton's father had contact on Friday and he is taken aback by his appearance, but he --THE COURT: Do you have a picture with you? MS. CRAYON: We plan to have it today by 10, but I don't think we do. THE COURT: I got it. White face with makeup? MS. CRAYON: Black clothes, white face, black eyeliner. Some of it may have red eyeliner. That's essentially what it is. Which those are things -- and Debbie Moffett, the mother of Kelly Moffett, obviously is familiar with what he looks like. Those are the people I anticipate we could elicit that information on. Page 99
The license plate MORBID we were talking about. That was not only in the photographs that we had, but Kelly and Debbie Moffett both can testify to that as well. THE COURT: "MORBID" on one, "ATHEIST" on the other? MS. CRAYON: Yeah. MR. LANCE: Are we going to argue? THE COURT: I want to find out what they are first. MS. CRAYON: Yeah. One license plate. Mr. Fry and I were just talking about it. It seems like the concern of the defense has been the use of the word "goth." It seems to, even amongst us, lack some definition, and I anticipate it probably would to the jury too. We can agree not to use that word itself if Mr. Lance's concern is that it conjures up -THE COURT: To me the word "Goth" isn't as bad as putting in a bumper sticker that says: "Honk if You Want an Abortion." MS. CRAYON: We're getting to those. THE COURT: Saying someone is a goth is fairly nondescript, but go ahead. Page 100 MS. CRAYON: I anticipate Kelly could give some description of that. I don't think anybody is saying that any of these kids, including Mr. Case, was so far into this goth thing to the extreme that I think it can be , rituals with animals and killings and all those things. No one is saying that. But the dark imaging and things like that that Mr. Lance also talked about, I think that is true. THE COURT: Okay. What's next? MS. CRAYON:
So if we're allowed to describe it and not use the word, I think that might help some. The bumper stickers. I think the ones that probably have the most relevance to what the State's theory is this "Ich bin Ich," which we talked about. I hope I'm pronouncing that right, at any rate. And the ones that say "evil" or "I am God," I think those things lend itself to some understanding of his belief in a couple of things that he enumerates to Kelly and that can be tied into his attitude about why he's the one who does the shooting itself. Page 101 I mean, Kelly is going to testify that he on several occasions, along with some of his friends, had this attitude that certain people matter. Certain people didn't. Certain people didn't have a right to be around. Other people did. She is going to testify that Anastasia was in that grouping towards the end of people who didn't matter anymore. He had a pager, the Defendant did. Kelly would testify that he had a voicemail system on there and that his voicemail system was something along the lines of, "If anybody is calling, you can leave a message, unless it's you, Anastasia. No one cares about you anyway, so don't bother." Something like that. And the idea she is fitting now into this thing of -It's before the homicide that that's actually on the tape. Very close to the time of the homicide, actually. THE COURT: Okay. MS. CRAYON: Now, Anastasia is fitting into this group the Defendant defines as people who matter or people who don't. THE COURT: What else? Page 102 MS. CRAYON: The other bumper stickers that are on there that I didn't mention, the "Honk if You Need an Abortion"; "Can't Feed Them, Don't Breed Them"; "Got Mine, Up Yours", I think they probably give us a picture of his attitudes and how he likes to shock people and how he would be involved in something that other people might not do. We'll concede that we don't need to get into those. I think there are some that are probably more relevant. THE COURT: What's Ich bin Ich" mean in German? MS. CRAYON: My understanding is "I am I." It's not anything that's really offensive.
THE COURT: Do you know, Mr. Lance? MR. LANCE: Our opinion is, "I am myself " I am myself, meaning I'm an individual. THE COURT: Okay. All right. MS. CRAYON: And I don't necessarily argue with that. THE COURT: Okay. Page 103 MS. CRAYON: The autopsy screen saver, we talked about why we thought that was relevant, and Kelly would be the one that would talk about that. The thing about, you know, the pin that Mr. Fry enlightened you about last time we were here -THE COURT: The what? MS. CRAYON: The pin that he and his friend, Abraham Kneisley, wore. THE COURT: What is it? MS. CRAYON: The one with Jesus Christ upside down on the cross saying, "I ass-raped your Savior." THE COURT: What? MS. CRAYON: "I ass-raped your Savior." And the fact that Abram Kneisley and he would wear these priest collars around at Westport I talked about earlier, those are things that may be relevant more in a cross examination sense.
THE COURT: Okay. MS. CRAYON: His web site, same thing. THE COURT: What's his web site? MS. CRAYON: I've forgotten what the name of it is, Judge, but we have the printout off of the web site, some sections of it. Page 104 I can't represent to the Court that this is a complete one. But he maintained a web site. His sign-on -name was "Savior." It's got all sorts of different things in here about Church of Euthanasia, Suicide, Abortion, Cannibalism, and there are several references throughout his web site as to the death of Anastasia, the death of Justin, his relationship with his mother, with Abraham Kneisley, comments about all those things that at this point we're not seeking to introduce as our case in chief. If we decided we wanted to do that, we certainly would approach the bench and talk about it before we did that. THE COURT: Okay. MS. CRAYON: The license plate with "ATHEIST", that would just be testimony. We don't even have a photograph of that. We're willing to let that one go as well. I don't know anything that describes the fact that he's an atheist. He doesn't believe in God. Page 105 I think the thrust of what we think is important is, from Kelly's standpoint in her testimony is, anybody who did not have the same feelings that he did, the same outlook on life, the same opinions, he had utter contempt for, he didn't like, and he made fun openly, was very judgmental of -THE COURT: Was Anastasia not fond of his lifestyle? MS. CRAYON: No, I wouldn't say that. I would call Anastasia more of an agnostic probably than an atheist and was exploring other religions. THE COURT:
What about all this goth stuff Was she dressed in black? MS. CRAYON: Very mild version of it. Again, out of the four of them, she didn't dress like she was from The Gap like Justin Bruton may have, but she was probably on the same level Kelly was. She had dark hair and wore dark clothing, but net the extreme makeup situation. So the religious belief of an atheist or non-religious belief of an atheist, that's not what we're looking for. Just contempt for people who didn't conform to what he thought was appropriate or right. Page 106 Anastasia was just acting very annoying and wasn't acting the way he thought she should and his judgment of that is more important. So we don't need to get into he's an atheist. THE COURT: Is there any flavor -- does this goth lifestyle, does this have any -- I'm certainly not attributing this to Mr. Case or anyone else, but is there, to say in the generic, is there an Arian nature to this kind of existence? MS. CRAYON: There may be, but I don't know it, and I don't know that we have any -- we wouldn't be offering any testimony that he was of that flavor, no. THE COURT: All right. MS. CRAYON: Mr. Case's mother is from Germany, and I think that explains some of his knowledge of the German language. So I don't think it's anything like that. THE COURT: All right. When I ask that I didn't know some of these things. Again, this whole gothic, this lifestyle we're talking about still escapes precise definition in my mind. Page 107 But I just didn't know -- I mean, this very generically, not to cast aspersions on anyone, but kind of right-wing skinhead kind of thing, I didn't know if those were actually related or not. MS. CRAYON: They may cross at some levels, but I don't think there is anything that we would have that we would present in any way or form that that's what's happening here. THE COURT: All right.
MS. CRAYON: Although, I make note the way that Mr. Lance has described it with the 17th, 18th century, the dark mood, the vampire stories, I think he did ascribe to that. He took Anastasia, the victim to prom, and he showed up dressed like a vampire. I think that he very much was interested in all of those things. And the things that he read -- and again, I don't have the titles and all that, but I think he did. But, if we can, you know, avoid this umbrella thing we're trying to put him under with goth and being more specific with what we would like to get into, that's what we're trying to do. Page 108 THE COURT: Let me ask you this. If you just say that he was -- if you were to say that Mr. Case or anyone else was fascinated with gothic culture or gothic lifestyle and say no more than that, is that something that's going to be -- is that a negative thing? Folks younger than me, would they understand what that means and would that be offensive? MS. CRAYON: I don't know how much younger I am than you, but to me -THE COURT: Not a lot. MS. CRAYON: But I think, if it was just left to that, I don't think it's going to do anything. I think it's just going to be out there and no one is going to understand what that means. The idea these kids are going to these cemeteries too, is that a normal place for young kids to go sit around and hang out, how odd is that? I'm not saying that they were there all the time, but Kelly says they she and Byron used to go to cemeteries and take photographs of each other in the cemeteries. Page 109 Things like that, if a jury doesn't have a sense that this is something that they're into, it's all sounds extremely strange. I think to put Kelly's testimony in context -- I think Mr. Fry and I can agree that we're not going to get up there and say, because this guy dressed this way and because he likes cemeteries, that makes him the killer, that explains Kelly's testimony. I think it does explain why he's the one who ends up doing the shooting. THE COURT: Do you want to generically respond or do you want to descend into some particulars or do you want me to give you some advance thoughts I have or what do you want? MR. LANCE: Why don't we just go through the particulars. THE COURT: All right. Let me just give you a flavor of some things and see what you think about this. Is that okay?
MR. LANCE: Yes. THE COURT: The idea that -- do you have any objection to them putting forth evidence if they were to suggest that he was -- evidence to the effect that he was fascinated by or was very knowledgeable of gothic culture and that he tended to be kind of an individualist and do that kind of thing, and that one of the things he did -- well, first of all, to that extent, what do you think about that? Page 110 MR. LANCE: I object to that. I think the goth name and that reference will have a negative connotation. I go back to what I started with when we were here last Thursday. When I make a motion in limine, what I'm saying is this: Is this probative and is it prejudicial and which outweighs the most? And I think it's an unfair character attack to say Byron Case is a goth. He's fascinated with the goth lifestyle. I don't see the relevance to that to what happened on the night of the homicide. THE COURT: I'm trying to decide how to make this record. Well, of the things that they listed, I can give you some thoughts and this is a fluid situation, because this is a fairly undefined kind of thing. It's not like deciding whether or not the jury can hear that Susie said that, you know, this event occurred at some other time. It's a little different. Page 111 The idea that -- I think this "Ich bin Ich" thing, if there was German spoken at the at the time of the homicide and, obviously, again, I'm assuming -- I think it's obvious this Kelly is going to be cross examined. The fact that he knows German and that there is "Ich bin Ich" on a bumper sticker that demonstrates that, I would suggest that would be relevant. MR. LANCE: I'll concede that one. THE COURT: The fact that he was at least judgmental in that there were people that he specifically liked and didn't like and that was kind of his style and the fact he had a pager that said, "Leave me your message unless it's you, Anastasia," I think, if he's accused of shooting this young lady, I think that would be relevant. MR. LANCE: Judge, I'm sorry, but I see those as two separate points. THE COURT: Tell me what they are. MR. LANCE:
I think, if that was on his voicemail, they claim that's on there, they have the, right to put that on. Page 112 If the Defendant wants to testify, I think he would testify in response that he sort of got caught in the middle of this on-again-off-again relationship between Justin and Anastasia, and she kept calling him. THE COURT: So the fact he had a pager and the pager said -- without getting into what his attitude towards lifestyle, but the fact he had a pager that said, "Leave a message unless it's Anastasia," you would not object to that? MR. LANCE: Yeah. Because he can explain how he was being badgered, when Justin wouldn't take her calls, she would call him. THE COURT: I think that would be relevant. MR. LANCE: He can explain that. But the other issue of, "I have people I like or dislike or these other people just don't count," I don't see that as character. THE COURT: I'm not there yet. I think also I got to think, the fact that him and Justin would commiserate with each other and talk about doing strange things and never pull them off, this idea of -Page 113 MR. LANCE: I'm not going to object to that. THE COURT: Let's go, you know -MR. LANCE: I have no objection to that testimony. THE COURT: I mean those kind of things like -- well, the two examples that I heard was the church and the robbing Justin's parents. Those kinds of things, the fact that they would want to do -- at least say things that were outrageous, I guess would be a good term to put it, and then they got into -- that that's something they did among each other and then never pulled it off, okay? I think that would be -- I can't conceive of that, once this witness is cross examine in any fashion not to be relevant. MR. LANCE:
Judge, I never had any plans to object to that. THE COURT: And I think even, although with maybe not describing it as a gothic lifestyle, the idea that he and Justin, one of the things when they were together is that they -- I don't know, this idea of wanting to, as was described to me, as trying to be offensive I guess was the term, I don't know, if that's -Page 114 MR. FRY: Or provocative. THE COURT: Justin and he, when they were together, frequently did things to offend other folks, I don't know. MS. CRAYON: Judge, I want to clarify too. THE COURT: That's a little hard to -- but certainly the fact they talked about doing outrageous deeds and didn't do them, I think that's relevant. All of the other stuff I could easily see doors being opened to this stuff, but I need some guidance on why this other stuff out the door is relevant. To me you're painting him as a weirdo and that's because he did strange things and that Is what I get from it. Page 115 I'm trying to understand -- again, in the context of this trial, based upon Ms. Moffett's cross examination and/or when he testifies, I can conceive of a lot of this stuff maybe coming into evidence based upon the flow of the testimony, but just to basically get up in opening statement and say Byron Case is a guy who used to dress like Dracula and had autopsy photos and this, that, and the other, I'm not getting there. If there are particular things here like this idea "Honk if You Want an Abortion" that is so offensive, that's just beyond -- I mean, to some people that is -- to a large group of people that is as offensive as it could be. And there is all kinds of people that may be kind of radical pro-choice people, for example, that might endorse that bumper sticker and committing homicide is the farthest thing from their minds. MS. CRAYON: If I wasn't clear, I need to be more so. That was one of the ones that we said we can see where that's not something that needs to come in. There were others that -- the "I am God" and the "evil" ones that I tried to refer to in my comments that I thought were more something along the lines of the State's theory of the case in his judgment of other people and why he's the one that does the shooting instead of Justin. Page 116
Justin can't get himself to do it. And the fact how does this person look at the time they're doing it and how does that fit in with why he's the one that's doing it, they're going to be sitting here looking at Byron Case dressed for trial this way. It's like showing an arrest of a photograph of somebody when they're arrested. The difference between the way somebody appears and presents themselves and attitude, as well as appearance, all that together, I think they're being allowed to show something that wasn't the me in October of 1997. It wasn't that way in '97 when he committed the homicide. THE COURT: Why is that relevant though? Other than to suggest because he looked weird in '97 that he's going to kill people? MS. CRAYON: The judgmental attitude, the wanting to shock people. The person who was willing to step up to the plate and do something when it needed to get done, to either shock or hurt or bother people, he was the person. Okay? Page 117 And I don't know, I guess I feel like I'm going over the same things. I do agree, "Honk if You Need an Abortion", is not something that sheds light on why he's the person who did it. That doesn't have anything to do with it. So that is an example -- we agree with the Court. THE COURT: In terms of trying to deal with this record in a motion in limine context I guess I've got to start off with -the first thing I've got to start off with is just what's admissible before there is even cross examination. Okay? And then, for example, I could conceive of cross examination opening the door to some of these things, but just to come off with -- I don't understand why it's important to show that he dressed with whit6 -- I just don't understand that. Page 118 Now, the idea, for example, and I am not trying to preview this for anybody, but, if there was any kind of cross examination to suggest this is just ludicrous that these people would start -- these teenagers start driving around in the car and talk about killing people and then basically bring up the fact that Mr. Case -- one of the things he liked to do was shock people and say and do outrageous things, I think that would be very relevant, especially after cross examination. But autopsy screen savers, "Honk if you're going to have an abortion", how he dresses, "I was the one that raped your Savior" -MR, FRY: They're all quite relevant, we believe so. THE COURT:
I understand. This God thing, I've got enough problems. I don't want to buy more. I'm not suggesting that I am endorsing either atheism or -- the concept of being agnostic or atheist is foreign to me, but by the same concept, someone can be atheist or agnostic and not be evil. I think there are people who are atheists or agnostics who are not evil people. MS. CRAYON: I agree. Page 119 THE COURT: I think an atheist is someone who is going to be evil and kill people -- some people may draw that conclusion, but I don't think it's a fair one. MS. CRAYON: Let me direct the Court to this. Kelly's testimony would include that he's expressed a desire to know what it was like to kill somebody. MR. LANCE: I'm not going to object to that if that's her claim. I don't object to that. MS. CRAYON: And then from that is where I say some of this becomes more conceivably relevant. He wants to know what it's like to kill somebody. That he is God. That he's this individual person. That he wants to shock or -THE COURT: Well, let me give you a scenario. Let me give you this scenario. She is allowed to say he is the one that says he's often thought about I wonder what it would be like to kill someone. He testifies and he denies saying that on the stand. Well, to then put out the fact, isn't it true, then I think at that point in time, well, don't you have autopsy screen savers? Page 120 Don't you talk about this? I think all of that stuff would likely be relevant then. He may not even testify in the case. I don't know whether he's going to testify or not. I guess what I'm saying is much of this stuff between the necessary cross examination of Ms. Moffett and potential of Mr. Case testifying, much of this stuff could well be relevant, but I just don't -I mean, if the defense wants to be blunt about it, I'm confident anything I say is not going to affect Mr. Lance's strategy, but, if the strategy in the case -- and I don't know what it is -- is to do a tight cross examination and have his guy not testify, I got to be honest with you, I think a lot of this stuff is inadmissible. MS. CRAYON: Well, what about this very judgmental attitude that some people matter, others don't? That's something that Kelly says that he talks about, a lot. He started to talk about that when you were saying when she was okay, then that got split from the pager message.
Page 121 MR. LANCE: Yeah, I was the one that objected and said those are two separate issues. MS. CRAYON: Right. I don't think we went back to that. If we did, I don't think I noted it. The pager message is relevant. The schemes were relevant. And that's all I've got. Then I've got this very judgmental attitude that some people matter and others don't. THE COURT: Do you want to speak to that, Mr. Lance? MR. LANCE: Yeah, that was the part I objected to. If they have a pager message, fine, but I think it goes right back into the character assassination I'm talking about, saying he's very judgmental, so this makes him a bad guy. That's the way I take it. I understand they have a different spin on it, but that's just a character attack to me, she thought he was very judgmental. There are a lot of judgmental people in the world. MS. CRAYON: If all she was going to say is he's judgmental, period, that's open to interpretation, but when she illustrates what do you mean by that. Page 122 Well, he would say there are some people around here that deserve to stick around and some people don't. There are some people who matter and some people better off dead. Those kind of things illustrate the judgmental attitude and make it relevant in this situation. THE COURT: Not necessarily it's dispositive, but did he say there are some people that matter or some people don't or did he say there are, some people who should die? Do you follow what I mean? You can think people don't matter and not want to kill them. MR. FRY: My recollection, Judge, is the context is that the Defendant stated a belief some people matter, some people don't. And some people die, and they don't matter, so what. So the death of the people that don't matter are irrelevant and not important. So once he categorizes somebody that way, take for instance, Anastasia falls into that category, the, fact she is killed doesn't matter. It's almost as if -THE COURT: It's different than him doing the killing. Page 123
MR. FRY: If it's not a motive, it's like certainly the conduit where he psychologically gets to the point where he's able to do this. In all our murder cases, that's a process by which you form the intent we're required during deliberation that we're required to prove. Now, if that's a stated belief, and we have a witness that will come in and say he gave me that stated belief -THE COURT: That witness is Kelly Moffett? MR. FRY: Yes. And then you look at us and you say, well, you have the burden, State, to prove either deliberation or intent. You say, well, we have this statement; in the context of that statement, is that Defendant's belief system that, if she didn't matter, whatever happened to you didn't matter. And, if you died, it didn't matter. So, if I kill somebody that didn't matter, it's not a big deal. Page 124 MS. CRAYON: And Kelly is going to testify his attitude following the homicide was very much like that. This is over and done with. I don't want to talk about it anymore. Can't be changed. Forget it. There are two people dead now. Why ruin anybody else's life over this whole thing? THE COURT: Would the testimony be that one of the people that he indicated that didn't matter was -- would the testimony be he lumped Anastasia in the category of people that didn't matter? MR. FRY: Kelly has never told us that, but the conversation -- it's never reported to us in that specific context. MS. CRAYON: We haven't asked her does Anastasia fit in that category. Let me put it this way. She gave that in talking to us while we were talking in context of why he killed Anastasia. Because we're talking about why would he do this. She says -- I think she said in the depo. She said, "I don't even know." THE COURT: Obviously, she is going to testify she had an ongoing boyfriend-girlfriend relationship with Mr. Case, correct? Page 125 MS. CRAYON: They saw each other practically every day.
MR. LANCE: Judge, I think it's unfair to characterize -- to say that shows intent or deliberation. Kelly Moffett is going to be clearly -- when she got in the car, the two boys were already in the car. They were talking about what a pain Anastasia had been and how her relationship was messing up Justin's life. The two boys were saying we're going to straighten out Justin's life, get rid of this girl, and Justin didn't really have the spine or guts to do it and asked Byron as a favor to do it. If the jury believes all this, they have an intent in deliberation before the jury. They still don't need to go into this thing about Byron is a very judgmental person. He liked some people. Some people he intensely disliked. To me that's too much belief. MS. CRAYON: Mr. Lance can argue that. We shouldn't be limited in how we prove our case given the burden we have. THE COURT: You have to be limited by the law of evidence. Page 126 MS. CRAYON: Agreed. But the argument they have these four things, they don't need this fifth thing -THE COURT: Whether you need it or don't need it, my question is the relevance of it. MR. LANCE: I was only responding to the State's argument. They can have ample deliberation if the jury believed that witness. THE COURT: Well, I don't know what she would say. I guess I would suggest this, consistent with the -- I'm just thinking out loud now. Consistent with the message on the pager, if there was testimony that -- when you're describing these outrageous or unfulfilled bizarre things, shock value, I describe this as kind of shock value things. There are a lot of people that like to -Rap music is kind of like that. I have some firsthand experience with that from a son point of view, not from this level point of view, but from a -raising children point of view. Page 127 I suppose, if she has a relationship with Mr. Case, an ongoing relationship, and for her to suggest that Mr. Case tended to basically either care a lot for people or not care a lot for people and thought people mattered or didn't matter and that he reached the conclusion one of the people he didn't particularly care for was Anastasia, I think probably to that extent I think that would probably be relevant to that extent, not relating it to some Dracula-like person. I think to that extent I would be inclined to allow that to that extent. But everything on the bumper sticker except the "Ich bin Ich," I would exclude. I think his appearance, that stuff at this point in time, I would exclude that. The MORBID and ATHEIST at this point
in time I would exclude. The autopsy screen saver I would exclude. "I raped your Savior" I would exclude. Web site stuff, not knowing more about it, I would exclude that. Now, with that being said, what I have included is stuff that I think, based on what I know you can use in an opening statement, I really think this is a fluid situation. Page 128 I think, based upon the nature of the cross examination of Ms. Moffett and if Mr. Case testifies and what he says, I think that this is an extremely fluid situation. I really do. With that being said, that's where I'm inclined. Now, if there are particular things you want to reraise, that's why I had the hearing. MR. LANCE: I'm not clear on will they be allowed to mention goth, goth lifestyle, in their opening, which I do object. THE COURT: Do you think the goth lifestyle -- I don't know enough about it, but is goth lifestyle going to have a negative connotation to some people, do you think? MR. LANCE: That's my concern, yes. I think it will. THE COURT: What's your view of that, other than, "Gee, I would sure like to do it"? Page 129 What I'm thinking is, if you get to say in opening statement that Mr. Case was friends with Justin, whatever his name is, and that they were together and they tended -- you that were unusual or different, they liked to shock people, they liked to offend people, they often talked about committing outrageous acts and that was common, I mean, they talked about blowing up churches and robbing people and stuff as that, if you get to say all that, I don't know why you need to say that he was, you know -- I don't know [??] goth things becomes -- I don't know why you need to say that. But again, this is a very fluid situation. I'm not telling you guys anything you don't know. So especially if this Defendant testifies, it becomes an extremely fluid situation. MS. CRAYON: Well, to be honest with you, Judge, what I'm looking at, what you're okaying at this point to come in, I don't know how it helps anything to be able to say it. I mean, you're saying we can get into the schemes. I don't think the schemes are necessarily the goth lifestyle. I don't see those as necessarily being that connected. THE COURT: I'm not going to try your case for youPage 130
MS. CRAYON: No, I think those are relevant. THE COURT: I think they're pretty relevant when he cross examines Kelly Moffett and wants to argue to the jury, well, so this 15-year-old or 18-year-old just comes in and says we're going to kill somebody and you just didn't think anything of it, the fact he did this stuff all the time and then, bingo, he happens to deliver this time, I think it's pretty helpful evidence. MS. CRAYON: We want it in, and I intend to introduce that. I'm just saying I don't think that saying anything about goth enhances the prior schemes. So I agree. THE COURT: Okay. MS. CRAYON: I think for us to be able to say, well, they used to go to cemeteries. They liked to hang out in there. Does that mean they had this goth-like interest and that sent them to cemeteries. No, I can just say they liked to go to cemeteries. So that's fine. THE COURT: Okay. Does define the parameters of the situation enough for everybody's needs? Page 131 MS. CRAYON: Yes. THE COURT: Anybody else want to say anything or make any other record? MR. LANCE: No, Your Honor. THE COURT: Okay. Again, if there are specific areas that you deem excluded that you think the door is opened, come to the bench, and I'll be glad to -I emphasize again, if there is one thing I want to say, I think it's a very fluid situation. Anything else other than tomorrow we need to talk about? MR. LANCE:
Judge, something came up -- the Defendant just mentioned they pulled him out at 7 a.m. I think the jail policy is they don't have razors or anything. Have you been asked this question before? THE COURT: No. MR. LANCE: The Defendant is concerned having access to a razor early so he can shave before jury selection. CORRECTION OFFICER: We can make provisions for that. Page 132 THE COURT: Would you make sure that happens? CORRECTION OFFICER: Yes. THE COURT: Do I need to call anybody, because we're going to start jury selection pretty early tomorrow? CORRECTION OFFICER: What time? THE COURT: Well, let's talk about that. They can have a full panel of jurors at 8:30. Let's go off the record. (A discussion was had off the record.) (Court was adjourned until April 26, 2002.)