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Byron Case May 2, 2002 Pages 1228-1248 Following are instructions and exhibits given to jurors in the criminal trial State of Missouri v. Byron Case, as well as the verdict itself. Page 1228 (verdict, State v. Case)
THE COURT: Ms. Crayon, do you have the Court's instructions there at the counsel table? MS. CRAYON: Sure do, Judge. THE COURT: First order of business, Ms. Harris, Mr. Pannick, and Ms. Dodrill, you have been chosen in this case and have sat through the entire trial, and we appreciate your kind attention and service. Under the Missouri law, there is only twelve people that can deliberate and you have been selected as alternate jurors in this case. Page 1229 (verdict, State v. Case)
Obviously, if any of these good citizens had been ill or unable to proceed, you could have sat in their place and this trial could have gone forward and justice could have been done, and so we appreciate your service. Pleases accept our heartfelt appreciation in participating in this system that is so dear to us all. What I would like for you to do, the jury will go up to the jury room. Why don't you go up there with them. Get any belongings you have up there. Feel free to exchange any pleasantries with these citizens that you have spent the last several days with. If you would come back down, I'll give you further instructions at that time. Obviously, the twelve of you who are going to deliberate on the case, I would ask that you not begin your deliberations until there is just twelve of you in the room. And, obviously, during the course of your deliberations, two things you should always remember. Always make sure that the discussions occur when all twelve of you are there and when the instructions are there with you to refer to. Page 1230 (verdict, State v. Case)
So with that being said, I'm going to hand the instructions to Mr. Cotton, and we will be in recess. The jury will commence their deliberations. All rise, please. Jury is free to go to the jury room. (The case was submitted at 10:25 a.m.) (At 11:06 a.m. the jury communicated with the Court through a document marked as Court's Exhibit B.) THE COURT: I have before me Court's Exhibit B, which I received at approximately 11:05, and I think the jury went out -- has been out about a half hour, a little over a half hour; is that about right? MR. LANCE:
Yes. THE COURT: And I have conferred with counsel briefly about the questions. First question is regards to the transcript of the tapes and the conversations, which I will deal with that issue last if that's all right. They asked for the receipts of the shotguns, pictures of the cars, transcript of Francesca's testimony and all photographs. Page 1231 (verdict, State v. Case)
I think we have agreed that all of the exhibits that have been admitted into evidence, with the exception of the videotape of Mr. Bruton buying the weapon at The Bullet Hole and, obviously, the very specialized issue regarding the consensual recordings, is that we're just going to send all the exhibits up there; is that agreed? MR. LANCE: That's agreed by defense. MR. FRY: Correct. THE COURT: Why don't you read into the record what we're sending up. MR. FRY: Your Honor, Exhibit one, two, three, four, five, six, seven, eight and nine are all photographs. They include the body in the cemetery, aerial photos, some crime scene photos, a photo of Justin Bruton's automobile. Ten and eleven are what we're going to play. Those are the tapes. Exhibit twelve will go. It's the photo of Justin Bruton, the car. thirteen is the portrait of Justin Bruton. Fourteen is a portrait of Anastasia. Fifteen is an autopsy photo. Sixteen is an autopsy photo. Seventeen is the receipt at The Bullet Hole from 10-23-97. Eighteen is an ATF form dated 9-27-97. 19 is an ATF form dated 10-23-97. Page 1232 (verdict, State v. Case)
There is the map that we've got in, number Twenty. I don't know what your intentions are. THE COURT: Let's send it. Any objection, Mr. Lance? MR. LANCE: No objection. MR. FRY: All right. With the exception then of ten and eleven, we have one through twenty, as I have described it, and that would be the State's evidence that would go to the jury. The exhibit marked thirty, Defendant's
Exhibit thirty, is the sunrise-sunset stipulated form information that we have admitted. Thirty-one is the Defendant's medical bill, and that's prepared and ready to go. THE COURT: All right. Well, what I would propose to do is we'll send all those up. Now, there is an issue we anticipated coming up regarding what I will describe as the consensual recordings, Exhibits ten and eleven, the June 5th and I think June 7th phone conversations between Ms. Moffett and Mr. Case. The jury has requested they would like to have the transcripts and the tapes of those conversations. We have discussed generally my view of it. Page 1233 (verdict, State v. Case)
Mr. Lance, I'm going to allow you to make any -- my inclination is similar to what I indicated earlier, but we've got the request, so I'm going to make any record you wish at this time. MR. LANCE: Judge, the Defendant objects to allowing the jury to listen to both these audiotapes again and/or view transcripts of what is on the audiotapes again. I would like to read in my pretrial objections, first of all, to the quality of the tapes. Secondarily, we believe the case law in Missouri is just flat wrong on this issue, the Gilmore case that was given to the court pretrial, and cases cited in the Gilmore case. The case law does not follow any logic. They refer to this type of evidence as what's called a tacit admission. The defense position is that's an oxymoron, like jumbo shrimp. I mean, there is no logic to what the case law says, this is a tacit admission. So we have objected to these tapes all along. Page 1234 (verdict, State v. Case)
I have to object again, that it's a violation of due process to allow the jury to listen to these tapes and read the transcripts again. And I just make a special note, we objected to these tapes all along and it's wrong for the jury to have them and now it's I believe on the note the very first thing they ask for. THE COURT: That's true. MR. LANCE: And so I note that for my objection. We object to ten and eleven and this procedure that's about to happen. THE COURT: Okay. Do you want to make any record, Mr. Fry? MR. FRY: Just in regard to the note, Judge, you have read us the entire note. It's one note. All the request for pretty much all the evidence is on the same note.
THE COURT: That's true. And it's contained in Court's Exhibit B which will be made part of the record. MR. FRY: Thank you, Judge. Aside from the State believing you have properly applied the law, we have cited the law on the record, both for the admission and also for the rehearing when we contemplated this request, we would make no further record. Page 1235 (verdict, State v. Case)
THE COURT: What I'm going to do as relates to -- I note your objection. I'm going to overrule your objection; however, what I am going to do, I'm going to -- first of all, I'm going to bring the jury down. I'm going to lock the door so no one can come in and out. And what I'm going to do is, since they're here, the tapes, what I'm going to do, I'm going to allow them to listen to both tapes with the transcripts, just as we did. I'm going to give them the same instruction I gave them. The transcripts are not evidence. They need to be guided by their collective memory. I'm going to make it very clear to them and clear to counsel, this is their one shot. They get to listen to it again and I think it's my discretion. I think I have that discretion. They're doing it now and then I would be very disinclined to do it again, but I'm going to let them do it this time. Page 1236 (verdict, State v. Case)
Since they're going to be down here, I intend to let them know we have given them all the exhibits except for the videotape of The Bullet Hole situation. I'm going to inform them the transcript of Francesca's testimony, nor any other testimony, is available during deliberations. There is another buzz, so let's see what that buzz is first. MR. FRY: I would just for our record, Judge, in terms of being disinclined to allow them to hear ever again upon request, that would depend on the circumstances. I'm sure you would keep you mind open. THE COURT: Certainly it would. Certainly it would. But I can tell you what I won't be doing. I'm not going to let them sit up there to their heart's content with the recorder and transcripts. MR. FRY: You made that very clear to us, Judge. We're fine. (At 11:15 a.m. the jury communicated with the Court through a document marked as Court's Exhibit C.) THE COURT: Court's Exhibit C is a request for Ms. Moffett's transcript. Page 1237 (verdict, State v. Case)
I'll answer it the same way. Keeping in mind, Mr. Lance, that your objection is preserved, is me informing -- rather than sending a note and bringing them down, is me informing them of these other requests in person, do you have any problem with that? MR. LANCE: No objection. THE COURT: First of all, let us lock the door to the courtroom. Are we ready to go with the transcripts? Are we ready to go too? I'm going to ask, would you all -- there are folks waiting on the verdict. Would you explain to them what's going on. I don't really want them looking in the window when the jury is here. I want it to be just like deliberations. (A recess was taken.) THE COURT: Mr. Cotton is going to bring the jury down and the door to the courtroom is locked. So we're making sure that -- obviously nothing -- there will be nothing said excepted by me, because I want to recreate the deliberation mode as best we can. Page 1238 (verdict, State v. Case)
Since there has been an objection to the tapes, I want Mr. Lance and Mr. Case to see exactly what the procedure is in terms of us playing the tapes, because I believe it's lawful for them to listen to it again, but I don't want to unduly highlight the evidence in fairness to the Defendant. That's the reason for my procedure. (The following proceedings were had in the courtroom in the presence and hearing of the jury:) THE COURT: Ladies and gentlemen, what I'm going to do, in situations such as this, where there is audio or visual evidence, I generally bring the jury back down and play for their benefit in my presence, and that's the practice I intend to do today. So what we'll do, we will play these tapes, the two tapes that were admitted. The transcripts will be provided to you, so you can listen to them with the transcripts again. As I told you before and would apply equally strongly now, the transcripts themselves are not evidence. Page 1239 (verdict, State v. Case)
They're only meant to assist you into listening to the tapes themselves. The evidence is your collective memory of what the tapes say. So I brought you down for that purpose. While you're here, I'm going to go ahead -- normally I would answer in writing to these other requests, but I'll go ahead and tell you the answers if that's all right. First of all, we have gathered together all of the evidence that has been admitted, and with the exception, there is a videotape of Mr. Bruton buying the firearm which we don't have a videotape machine readily, so we didn't include that. Everything else that's in evidence will be provided to you when you return to the jury room; photographs, documents, all those things.
Regarding the transcript of Francesca and Kelly, Ms. Moffett and the victim's sister, Francesca WitbolsFeugen, I am not allowed to provide you transcripts of any witness' testimony, so you must be guided by your collective memory of the testimony as you recall it. Page 1240 (verdict, State v. Case)
With that being said, let's pass out the transcript 10A. Also, ladies and gentlemen, I have locked the courtroom door so we can preserve the dignity of your deliberations. So no one else can be in the room while you listen to the tapes. Go ahead and play number ten. (State's Exhibit Number Ten was played for the jury.) THE COURT: Mr. Cotton, if you all would gather those transcripts, which is 10A. And while we're putting Exhibit Eleven in the tape playing machine, if you would distribute 11A to the jury. Would you go ahead and play Exhibit Eleven. (State's Exhibit Number Eleven was played for the jury.) THE COURT: Mr. Cotton, if you would, get Exhibit 11A. With that being said, ladies and gentlemen, you may return to the jury room and continue your deliberations. All rise, please. Jury is free to go back to the jury room. (The following proceedings were had in the courtroom out of the presence and hearing of the jury:) Page 1241 (verdict, State v. Case)
THE COURT: Any additional record anyone wants to make? Why don't you take all that stuff up, will you, Greg. Both counsel have looked at what's going up; is that true? MR. LANCE: Yes. THE COURT: Go ahead, Greg. I think we have made a record of what's going up. Any additional record anyone wants to make? I know, obviously, the objections you made previously, but after having viewed the playing of the tape, any additional record anybody wants to make? MR. LANCE: Judge, defense would like to add for the record, I know the Court approved this procedure we just did. You were partly relying on the case of State vs. Evans provided by the State's attorneys here, and I just say for the record I still object to the whole procedure. I don't think the Evans case directly controls this scenario. It talks about confessions. And again, I don't think this was properly called a confession.
(verdict, State v. Case)
So, if the Court is relying on the Evans case, again, I think that is in error. So Defendant again objects to the whole procedure of letting the jury hear the two tapes during the middle of deliberations. THE COURT: All right. Your objection is again noted. Just so it's clear, the jury has returned to the jury room. The tapes and the transcripts are still in our possession. In other words, they listened to it with all of us watching the jury and watching what they did, and I think it's fair to say that what they did was we listened to two tapes in the same fashion we did during the trial itself and the tapes and the transcripts are here and will remain here unless there is a different order of the Court. Your record is noted, Mr. Lance. With that being said, just be available. I think we ordered food for everybody. I believe we ordered food for Mr. Case too if I'm not mistaken. So if you want to stay here and use the witness room or whatever you all want to do is way cool with me. (A recess was taken.) (At 2:20 p.m. the jury indicated it had reached verdicts.) Page 1243 (verdict, State v. Case)
(The following proceedings were had in the courtroom out of the presence and hearing of the jury:) THE COURT: It's my understanding that the jury has reached a verdict. Obviously I have not heard what the verdict is. I would request everyone maintain decorum whatever the result. With that being said, let's bring the jury down. (The following proceedings were had in the courtroom in the presence and hearing of the jury:) THE COURT: Everyone, please be seated. My understanding is the jury has reached verdicts; is that correct? THE FOREPERSON: Yes. THE COURT: Would you please pass the jury instructions and verdict forms to Mr. Cotton. The verdicts appear in proper order. The Court will now publish the verdicts: As to Count One, we, the jury, find the defendant Byron Case, guilty of murder in the first degree as submitted in instruction number five. Page 1244 (verdict, State v. Case)
As to Count Two, we, the jury, find the defendant, Byron Case, guilty of armed criminal action as submitted instruction number seven.
Does either side have any additional requests? MS. CRAYON: None from the State, Your Honor. MR. LANCE: Your Honor, the defense requests a poll of the jury. THE COURT: All right. Ladies and gentlemen, I'm going to call you by your number, and I'm going to ask you this question. I'm going to ask you are these your verdicts. If they are, just answer yes. If not, you answer no. Q. Juror number One, are these your verdicts? A. Yes. Q. Juror number Two, are these your verdicts? A. Yes. Q. Juror number Three, are these your verdicts? A. Yes. Q. Juror number Four, are these your verdicts? Page 1245 A. Yes. Q. Juror number Five, are these your verdicts? A. (verdict, State v. Case)
Yes. Q. Juror number Six, are these your verdicts? A. Yes. Q. Juror number Seven, are these your verdicts? A. Yes. Q. Juror number Eight, are these your verdicts? A. Yes. Q. Juror number Nine, are these your verdicts? A. Yes. Q. Juror number Ten, are these your verdicts? A. Yes. Q. Juror number Eleven, are these your verdicts? A. Yes. Q. Juror number Twelve, are these your verdicts? A.
Yes. THE COURT: Ladies and gentlemen, first of all, I want to thank you as sincerely as I can for your service in this case. This was an extremely well-tried case. It was a case that needed to be resolved, and I think you all were very attentive, and I appreciate your service. Page 1246 (verdict, State v. Case)
What I'm going to do, I'm going to ask you to briefly return to the jury room. I'll be up there. If you got any questions of me, you're welcome to ask questions of me at that time if you would like to. Then you'll be released. I will also tell you at this point in time, the admonition regarding talking or not talking about the case no longer applies. There are occasions which, when the lawyers who try the cases, sometimes like to talk to the jury about what things were persuasive, what things were meaningful. You certainly can talk to them if you wish. You need not. It's your right not to also. I would suggest, if you do talk to any of the lawyers about the case, I think it's important not to discuss the particular votes of any juror or to discuss what any particular juror said, but just what you did as a group. Again, I really appreciate the work that you have done in a very difficult case, and I really, really appreciate it. I'm going to ask that you go briefly to the jury room. Page 1247 (verdict, State v. Case)
I'll be there in a few moments. All rise, please. Jury is free to go to the jury room. (The jury was discharged.) THE COURT: Mr. Lance, do you want the full 25 days? MR. LANCE: Yes, please, Your Honor. THE COURT: That will be granted. MR. LANCE: May I view the verdict forms? THE COURT: You bet. Do you wish to look at the forms, Ms. Crayon? MS. CRAYON: No, Your Honor.
THE COURT: All right. My count which is rough shows the 25th being Sunday, May 26th. So probably May 27th, but I suspect, for safety's sake, you might want to file it by May 24th, Mr. Lance. MR. LANCE: All right. THE COURT: Any other issues we need to take up? What's the bond at the present time? MR. LANCE: Three hundred thousand dollars. MS. CRAYON: I ask he be held without bond given the circumstances of the case, giving what the sentencing guidelines are. Page 1248 (verdict, State v. Case)
THE COURT: Based upon the fact that the statute would require that he be held without bond should there be a sentence imposed and, based upon the finding of the jury, under Chapter 544, I'm going to enter an order denying bond in the case. All right. It was a difficult case. It was a well-tried case. With that being said, we'll be in recess. (Court was adjourned until June 28, 2002 for sentencing.)
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