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Byron Case May 2, 2002 Pages 1169-1187 Page 1169 THE COURT: All right. The State may commence with their opening argument. MS. CRAYON: May it please the Court. THE COURT: Ms. Crayon. MS. CRAYON: Counsel. MR. LANCE: Yes. MS. CRAYON: Ladies and gentlemen, this is not a very complicated case. I mean, the lines are drawn pretty clearly in the sand here about what you need to decide. It's a difficult decision, but it's pretty straightforward. The question is: Who killed Anastasia WitbolsFeugen? Not where was she killed or when was she killed or how was she killed. All of that is undisputed. Page 1170 Both sides agree that Anastasia was killed in Lincoln Cemetery in Jackson County on October 22nd 1997, and that she died from a gunshot wound, a contact gunshot wound to the face, whether that be from a shotgun, a rifle, or to a lesser extent a high-powered handgun. Those aren't in dispute. There is no self-defense issue. There is no question regarding cause of death. As to why did it happen? You don't have to decide that. The Court has told you, and we talked about it in jury selection, can you follow the instructions? Can you follow the instructions? The Court has told you what those instructions are. Take them up to the jury room. Look at all of them. In not one place in all of these instructions does it tell you that you have to find out or to make a decision as to why Byron Case would have done this. We don't have to show you a motive. We don't have to decide on one. Page 1171 It makes us feel better to put a reason with why something like this might have happened; but the important thing I have to emphasize to you is that these do not require, suggest at all that you have to decide why, before finding him guilty. You must follow the instructions. You took an oath to do that.
Now, I want to talk just briefly about these instructions, okay? First thing is, the judge has read them to you. Instruction Number Five. That's the one I want to focus on first. He's read it to you. This is a Murder in the First Degree instruction. It lists the elements that you need to find beyond a reasonable doubt in order to find him guilty of Murder in the First Degree. You're going to evaluate the evidence and go through it and say, Did they prove Number One? Did they prove Number Two? Did they prove Number Three? If the answer is yes to that, you are done with the murder question. You do not have to go -- and you should not go -- to instruction Number Six, which is Murder in the Second Degree. Page 1172 Because at the top, as the judge just read to you it says, as to Count One, if you don't find him guilty of Murder in the First Degree, then consider Murder Two. The only difference between these two, ladies and gentlemen, is deliberation, which the Court, in its instruction in Number Five, has told you what that is. Cool reflection upon a matter for any length of time no matter how brief. If this case is anything, it is Murder in the First Degree. If you believe that Byron Case killed her, he did it after deliberation. They talked about it all day. He sat in the car, drove out there, had a discussion with Kelly, with Justin. He deliberated. And remember what his testimony was? "What were you doing in the back seat when you were driving around?" "Oh, just daydreaming." He's thinking about it. Cool reflection upon the matter no matter how brief This is Murder in the First Degree. You don't even get to Murder in the Second Degree. Page 1173 You believe the State has proved the elements in Number Five, you don't even get to Number Six. Which leads me to the second count, which starts in instruction Number Seven. Number Seven is the Armed Criminal Action count. Was there a deadly weapon used in this murder? Absolutely. No doubt. No dispute. If you find him guilty in instruction Number Five of Murder in the First Degree, you go to instruction Number Seven, because that's the weapons count that goes with Murder in the First Degree. If you find him guilty of Murder One, you find him guilty of Armed Criminal Action in connection with Murder One. You don't even have to go to Number Eight, which is the Armed Criminal Action that goes to the Murder in the Second Degree. Okay? They can be confusing. But what we're focusing on is, if it's Murder in the First Degree, you don't even have to go to instruction Number Six. If it's Armed Criminal Action with Murder in the First Degree, you don't even have to go to the next instruction for Number Eight. That's the first thing I wanted to talk about as far as the instructions. Page 1174
Second thing is what's called a credibility instruction, and the judge read it very early on. It's instruction Number One. It's the bottom of the page. In determining the believability of a witness -- and that's what this is all about. You got to decide who you believe here. In determining the believability of a witness, it gives you a list of things that you suggest you take into consideration in determining who to believe. Their manner while testifying is one of them. The ability and opportunity for them to observe what happened. Any interest, bias or prejudice, motive to lie, and is it reasonable with what the witness is saying in light of all the other evidence or in light of all the other testimony. So let's talk about that. There are lots of people that were brought in here over the course of the last three days. Everybody is probably bringing it down as do you believe Kelly Moffett or do you believe Byron Case? Page 1175 All these other people are brought in for a reason. They're brought in to help you understand the testimony of these two people and help you decide is what Kelly Moffett or Byron Case saying reasonable? Is what Kelly is telling you reasonable? Does it make sense? It sure does. Now it does. Who backs Kelly's story? Who tells us that Kelly is telling us the truth? You know who does that? One of the best people who had that isn't even here. Anastasia tells us that Kelly is telling us the truth. She is telling us by what she is left for us to know that Kelly is telling you what really happened. The Medical Examiner and the sheriff who came in, sheriff deputy, told you about the scene, told you about the body, Anastasia had no defensive wounds on her. There was no sign of struggle. And you look at this picture of Anastasia. Are her clothes torn? Had she been dragged or forced into this area? There is nothing here that leads anybody to think that. Page 1176 The Medical Examiner told you, no defensive wounds on her body. Everybody has called this young girl a fighter. Somebody who pushes for what she wants. Very impetuous young lady. Even the Defendant agreed with that characterization. She was not forced into this area here. She went willingly with somebody she knew. What else does this picture tell us? What is Anastasia saying here that says believe Kelly? Kelly tells you the location of the wound. "Byron shot her in the head." Where is her wound? In the head. Kelly tells you, "She fell back." And she gave you the motion like that. And when Horton Lance, the defense attorney, asked her did you see pictures of this? What was her answer? No. No one ever showed Kelly Moffett this picture. How does she know the position that Anastasia is in? Remember her testimony? She is back like this. That's exactly how she is found. Her hair is fanned out. She's just been thrown back, and that's exactly what Kelly says happened. Page 1177 The fact that, you know, the defense said in opening, and they have tried to develop this, she is killed by someone -- random act of violence, some stranger.
Anastasia was killed by somebody she knew, somebody she was not afraid of, and somebody who suddenly shot her in the face without any warning. And remember? Front to back. Anastasia was looking straight at whoever shot her. It's slightly upward. Why do we know that Byron Case helps us understand that Kelly is telling the truth? What is your reaction? Somebody you know comes up to you with a gun? That's the most that she had time for. She leaned back a little bit. It got pressed up. It leaned back. That explains the upward tilt of the nose or the wound track. What else tells us that Kelly is telling us the truth and it's reasonable to believe her? It rings true that she is telling us the truth because she implicates herself, and she is the only person who does that. She is the only person who came up on this stand and told you, you know, Kelly had something to do with this. Page 1178 She knew about the plan, and she called Anastasia to meet those boys. She is the only one that said that. Remember what the Defendant testified? "Yeah, we stopped at Kicks 66 gas station. Yes, we made a phone call to Anastasia, but it was Justin, not Kelly." Why would Kelly make that up? Why would she implicate herself in a homicide? She didn't have to, if her only motive here is to get you know, her ex-boyfriend that she broke up with two and a half years ago in trouble and face a prison sentence for something he didn't do, why did she implicate herself? She does, doesn't she? She doesn't have to do that. It's because she is telling you the truth. Who else is telling us that Kelly is telling the truth? Justin Bruton is. Justin is telling us. He isn't here either, but he's telling us what Kelly said is true. And we know that through Jim Dodd, the guy from The Bullet Hole? Page 1179 Remember he came in and told you Justin came in, bought another shotgun? Remember when he told you he did that? 10:30 Thursday morning. Anastasia's body hasn't even been identified yet, which means it hasn't been released to the public. Justin knew Anastasia was dead, didn't he? He was in there buying a gun to go in there and kill himself, because he felt so bad about what happened. Seven hours before the 5 o'clock news releases this, Justin Bruton is going to go kill himself, because he knows what's happened. He's telling us, "Believe Kelly Moffett. She is telling the truth." Kelly's motive to lie: what does Kelly get out of this? I mean, why would Kelly come in here and say what she is saying? Again, the ex-boyfriend, two and a half years ago. She broke up with him. They've had no contact virtually since then, but she has decided now, he's leaving for St. Louis and I'm really mad about that, and I want him to stick around, so I'm going to blame a murder on him and have him go to prison for something he didn't do. Page 1180 Kelly gets nothing out of this, ladies and gentlemen, other than the chance to come sit here in front of the 15 of you and this courtroom full of people and admit, yeah, I lied to the police. "I did the wrong thing, and I lied for a long time. I'm a drug addict. I'm an alcoholic. I got kicked out of my house from my family. I lived in a crack house. I tried to commit suicide. I've been in the hospital for it. I've had to go to counseling. I have been a mess." That's what she gets out of this. She gets to come in and do that.
And she also gets to implicate herself in a homicide. She's granted immunity. But she gets to do all those things. There is Kelly's motive to lie. Where is it? There isn't one. Mr. Lance asked her about this reward that was out there. I think it's a $15,000 reward he said or something like that. Remember Kelly's reaction? "That's about the sickest thing I've ever heard." There is no way that she would go after that money. She hasn't. She is not. Wouldn't it have just been a lot easier for Kelly Moffett to just blame Justin Bruton? She wouldn't have had to do any of this. Justin is dead. And she tried that, didn't she? Page 1181 She tried that about six months before she came forward with the real truth. She tried to call her mom in the middle of the night. Remember Debbie Moffett told you? She called in the middle of night and said, "Mom, I saw Anastasia murdered. It was Justin." But did Kelly Moffett get better after that? No. She got worse. She got worse. And it wasn't until September of 2000 when she came forward and told the truth that he's the one who did it, that's when Kelly started getting better. For three years, Kelly Moffett in some way, some shape or form, didn't come forward with what really had happened, and, she told you how she dealt with it, didn't she? Her demeanor while she testified, that's the other thing you can consider if you decide whether you believe her. Think back to her responses when I spoke to her, asked her questions, and when Mr. Lance did. She was very factual. Tried to remember as much as she could to tell you what happened. And when she started talking about the murder itself and the funerals that she had to attend, she had some pretty emotional responses to that. Page 1182 They were pretty real. You can take those things into consideration in deciding whether you believe her or not too. And you take those things and you compare it. Let's compare them to the Defendant, the credibility instruction. Is what the Defendant tells you reasonable in light of the circumstances and the other testimony? Absolutely not. It is absurd. It was absurd in the beginning, it's absurd now. There was no way, just that absurdity, that the State could do anything about it to form criminal charges. Not until Kelly Moffett come forward did we have the evidence be able to present to you in how it all fits together. The Defendant's story, the problems that are associated with them, what you have to believe to believe him, highlight all of that. First of all, again, this girl who is a fighter, stubborn, unrelenting girl, he agreed to all that. Accosted by a stranger. Shot for no reason. You have to believe -- no sexual assault. No defensive wounds. Money still in her pocket. She wasn't robbed. That's all reasonable. Page 1183 You have to believe that Anastasia WitbolsFeugen, the same girl who, according to the Defendant, waited for three hours at a Dairy Queen for her friends to come pick her up, who was next to a phone, but didn't call for rides or anything, waited three hours. She is with them for a very short period of time, and she doesn't take advantage of the four or five businesses along there after she jumps out of this car, where there is at least three or five phones there, according to the man from the Amoco came in and testified, didn't use any of them. But the girl who waits three hours won't wait 30 minutes for someone to get home to come pick her up.
That, instead of waiting, that Anastasia would walk alone in the dark in a bad area up into a cemetery that has no lights, no phones, in the wrong direction to walk home. You got to believe that to buy his story. And you got to believe that, as he asks you to, that her jumping out of the car in a bad area at night is the same thing as her getting mad at Justin when they're at the condo and storming out and taking a walk on The Plaza and coming home. Page 1184 Same thing. No, it's not. No, it's not. You have to believe those things to make his story reasonable. THE LAW CLERK: You have used 18 minutes. MS. CRAYON Thank you. His motive to lie. He's got the best one yet. He's facing prison time. If you believe Kelly Moffett, he goes to prison. If you believe him, he walks out of here. He lives in our community. He's done. He never has to worry about this again. It's over. You bet he's got a motive to lie. And the way he testified on the stand, his demeanor, that guy couldn't give a straight answer to anybody, not even his own lawyer. "I vaguely recall" -- "Maybe" -- "Possibly" -- "I'm not quite sure" -- "I don't remember". "I don't remember" -- Boy, we've heard that a lot, haven't we? Those tapes. His best explanation yet. He offers it in direct examination. How do you explain these tapes, Mr. Case? "I was sick. I was tired. I was woken up out of a dead sleep." Page 1185 And the best one, "I misunderstood what Kelly said." You ask to listen to the evidence again. We provided the transcript. You listen to that. There is no doubt. Kelly a very clear. "I don't understand what all went on. I hate to say this, but seriously, why did you have to kill her?" He says nothing. He sits there. She continues to push him, and she asks "So, if you could seriously explain to me why you actually felt the need to kill her, then it would really help me feel better about this whole fucking thing. I mean, was there seriously any reason for this?" And you know, he has a response then. His response is: "We shouldn't talk about this." He understood. He goes right past that, and they make plans to go to Loose Park. They talk about directions. What kind of car he is driving. He knows what's going on when that conversation is being made. Is his explanation reasonable? No way. Now, you know, everybody in this situation has had to deal with her guilt about what happened in their own way. Page 1186 Justin Bruton dealt with it in the most extreme way possible, didn't he? Killed himself. Justin Bruton is known by everybody here come up with these schemes, but does Justin ever go through with any of them? No. No one ever takes him seriously. Justin was there. He did make up this
scheme with Byron Case, but he didn't have any intention of going through with it, and we know that because what does he do when that guy pulls the gun out? "Stop. Don't do it, Byron." He's yelling at him in German. He has no intention of going through with this, just as all those other times. But the Defendant says, "It's too late. I had to do it. She saw the gun. This is what you wanted, Justin." And how does Justin deal with it? He goes, he buys a gun, and he kills himself. THE LAW CLERK: Ms. Crayon, you have used 20 minutes. MS. CRAYON Thank you. And Kelly, she drank and drugged herself almost to death until she came forward. That's how she dealt with it. How does he deal with it? Page 1187 He goes on like nothing is wrong. Got to go in survival mode, and he does that, doesn't he? He just keeps saying, "I don't remember." That's his direction to Kelly. That's what he does. "Leave all the possibilities open. Don't commit yourself to anything. There is no use in ruining any more lives." That's what he tells Kelly. No reason, ladies and gentlemen, except that he needs to be held accountable for killing an 18-year-old girl for no reason at all, except that she just didn't matter anymore -not to him. She mattered to a lot of other people. We're going to be asking you to tell this Defendant that the gig is up; that you know the truth, it was a long time coming, but -- and he almost got away with it. But you can believe that, when you go upstairs, and you decide that you're firmly convinced that he committed Murder in the First Degree and you come back and tell him that, you won't be telling Byron Case anything he doesn't already know.