Page 342THE COURT:(The following proceedings were had in the courtroom out of the presence and hearing of the jury:)MR. LANCE:Let's go back on the record in Mr. Case's matter.I've been advised, before we commence opening statements in evidence in the case, that the attorneys had some pretrial matters they wish to take up on the record. Let's go ahead and proceed with those now.
THE COURT:Judge, the first motion defense had is I filed a motion to endorse a late witness.MR. FRY:All right. I have seen the motion.THE COURT:We really have two problems. Number one, I guess we could put her on, but we have a witness agreement that we will get to meet her and talk to her before they are able to put her on the stand.With that agreement, we're not opposing the late endorsement.
Okay. Well, obviously, I assume you don't have a problem with that, do you?
MR. LANCE:Page 343THE COURT:No.MR. LANCE:With the understanding that you all have a chance to fully talk with her and get a face-to-face understanding of her testimony and an opportunity to make any record that you wish prior to her testimony, I will allow the endorsement of the witness.Let me ask you something else, is this a witness -- would you contemplate mentioning this witness in opening statement?
THE COURT:No. It's not in there.Well, then, I'd just as soon in fairness -- as both of you know, the cases tend to suggest that you obviously have to err strongly on the side of endorsing these people, especially in a criminal case, or especially in a murder case; but I think it's only fair they get a chance to fully address what this woman is going to say and any record you wish to make before the jury learns of her or she testifies.So with that understanding, I'll endorse the witness.
MR. FRY:Page 344THE COURT:For you to be prepared, based on what the motion has contained, we have concerns about the relevancy of her testimony.MR. FRY:I understand that. I'll be glad to take that up.THE COURT:We'll renew that.MR. LANCE:The issue is whether or not -- it's a discovery endorsement notice type issue. Assuming that he allows access to that witness to you, I'm going to consider that portion having been dealt with, and then I will allow you to raise relevancy issues once you have talked to the witness.Is there any other matters we need to take up?
THE COURT:Yes. Judge, I want to revisit my objection to the audiotapes and talk about some case law.MR. LANCE:Go ahead. On the audiotapes.Yes, Judge. First of all, I want to preface this just to let you know where I'm going, I think it appears you've made the right ruling. I just want to make the better record for the appeal.
THE COURT:Page 345MR. LANCE:That's fine.THE COURT:There is some case law on what is called tacit admission. I'm not on the topic of how bad the quality of the tapes are, but that's my other objection to the tapes.One of the leading cases is State vs. Gilmore. I brought a copy. 22 SW3d 712. These cases basically support the Court's ruling that these type of comments that are on the tape can be brought in. It's what's called tacit admission.
I'm objecting to that. I think the case law is flat wrong. I think it's bad law.
MR. LANCE:I understand.I copied the Gilmore case for all the parties here today. Basically, what happened in the Gilmore case is they said that we hear you shot a boy or something and the defendant said, "Oh, shut up," and the Court of Appeals Western District ruled that's a tacit admission.And, philosophically, I have big problems with that. The logic to me doesn't follow.
Page 346THE COURT:I mean, my parents raised me, if somebody says something idiotic to you, sometimes you just walk away or ignore them. They're ruling this is somehow evidence of guilt.So my objection is the case law in Missouri is bad law. I'm asking the Court to overrule the Gilmore case or find that the Gilmore case and the other cases cited in that case are erroneous rulings, and therefore, my objection to the tapes would be well-taken.
MR. FRY:All right.THE COURT:I believe you have made the right decision on the admissibility of the evidence, and what I believe defense counsel is suggesting here is it may go to the weight of the evidence and how to argue the evidence, but certainly not its admissibility.And I believe you have made the right decision, both in terms of the quality of the tape and the admissibility of the tapes.
Just for my own clarification, I doubt it would affect my posture in my ruling, but would you intend to introduce these tapes during the course of Ms. Moffett's direct examination?
MR. LANCE:Page 347THE COURT:Right.MR. LANCE:You were?THE COURT:Yes.First of all, Mr. Lance, I greatly appreciate you bringing this case to my attention. I think it demonstrates my long-held thought of both the quality and ethical way that you practice before this Court, and I appreciate it very much.I've been there before and had to argue appellate decisions that were contrary to what I thought was a fair and just position, so I appreciate your candor in that regard.
I think, first of all, I think the Gilmore case would -- at least the posture of it as I understand is I don't think I'm in a position to -- it's a Western District Court of Appeals.
Even if I was disinclined to follow the logic and I found fault with the logic, I think I would be legally obligated to follow that opinion.
Page 348The other thing is that it seems to me -- I tell you what I think this is exactly analogous to, and this happens quite frequently. You'll see it in murder and assault cases.They take statements from folks, and the statement is basically on its face arguably exculpatory, but it is so absurd it becomes inculpatory. I think that's kind of the situation we have here, is that it's just I think --
As I understand it, we're going to have Ms. Moffett come forth, indicate that she had had an ongoing relationship with Mr. Case, indicate that she was present when this homicide occurred.
Clearly, I think she is going to be the subject of some focused, if not intense cross examination, which her credibility will be an issue. And I think that these tapes -- I think the way he reacts on the tapes, I think all of those things suggest this kind of tacit admission situation, especially in the context of the fact that it's predictable her credibility will be questioned. That's a logical theory for the defendant to pursue.
Page 349MR. FRY:And I think in the full scheme of things, I think it's fair and relevant evidence for the jury to hear.So I note your objection. I note it not only on foundational grounds, but also that you believe that -- I understand you take the position that it's not an appropriate admission and that, under the law of evidence, it shouldn't be admitted, at least in the case in chief.
I understand your record and my ruling remains the same, and I intend to overrule your objection.
Obviously, do you intend to mention these tapes in opening statement?
THE COURT:Yes, sir.As far as I'm concerned, you have a continuing objection to this evidence as relates to opening statement.Unless you desire to, you need not renew your objection. I fully understand that you have made your record very fully.
And as I indicated, there is still the issue of -- the pretrial record was premised on the fact that the other areas of the foundation can be met.
MR. FRY:Page 350THE COURT:Right.MR. FRY:So before they're played to the jury, I will require you to make a foundation in the presence of the jury. By the in limine motion regarding the tapes, my overruling that motion, that ruling remains the same.THE COURT:One housekeeping matter. The tape recorder is in your office.MR. LANCE:Do you want it right now? Go ahead and grab it.THE COURT:Judge, I had one other matter.MR. LANCE:What is it?THE COURT:Judge, the defense would like to make a motion about moving counsel table. I just feel I'm in an awkward position with my back to the jury. I think there is ample space here to swing the table sideways so both sides would be able to fully see the jury is what I'm concerned about.I don't care. Can you move the table? Do you guys care? If you can move the table, it's fine with me.
Page 351MS. CRAYON:I've not had that request before, but inventiveness is -- curiosity or change is the mother of invention, I guess.THE COURT:We need to invoke the rule.The rule on exclusion of witnesses is granted. Anyone who is going to testify in the case cannot be in the courtroom until that testimony is completed. Also, those of you who are going to view the testimony, I would request that you not discuss what occurs in court to witnesses that are going to testify. That applies to both sides.THE COURT:(The following proceedings were had in the courtroom in the presence and hearing of the jury:)Everybody, please be seated. Good morning, ladies and gentlemen. I hope that the -- I assume the coffee and doughnuts were there on time. So one logistical thing that I might mention to you as you're probably aware, there are fifteen of you that are seated.When the case is finally given to you to decide, there will be but twelve that deliberate on the case, and I will determine at that time who the alternate jurors are.
Page 352So, obviously, I think all of you understand the importance of listening to the evidence in the case, because all of you are subject to being part of the twelve that deliberate on the case.With that being said, the first thing I need to do, since you've been selected as a petit jury, there is an additional oath I need to administer. I'm going to ask all of you to stand and raise your right hands, and Ms. Burbanks has an oath for you.
THE COURT:(Twelve jurors and three alternates were sworn by the Judicial Administrative Assistant.)MS. SELLIN:Also, I might tell everyone that seated next to Nancy is Ms. Kathy Sellin. She is a student court reporter who is here for training purposes.Welcome, Ms. Sellin. We're glad to have you.
THE COURT:Thank you very much.Bear with me just for a moment. Can I see counsel for a moment.
Page 353THE COURT:(Counsel approached the bench and the following proceedings were had:)MR. LANCE:There are a couple of instructions that are missing. I may have misplaced them. I'm going to go ahead. If there is no objection, there are two introductory instructions, and we'll substitute it at a later date.No objection.THE COURT:(The proceedings returned to open court.)Sorry, ladies and gentlemen. I thought we didn't have the appropriate instructions and we do. So I'm going to begin by reading you three different instructions that have been approved by the Missouri Supreme Court as it relates to criminal cases.This case will proceed in the following order: First the Court will read to you two instructions concerning the law applicable to this case and its trial.
Next the attorney for the State must make an opening statement outlining what she expects the State's evidence to be.
Page 354The attorney for the Defendant is not required to make an opening statement then or at any other time.However, if he chooses to do so, he may make an opening statement after that of the State or he may reserve his opening statement until the conclusion of the State's evidence.
Evidence will then be introduced. At the conclusion of all the evidence, further instructions in writing concerning the law will be read to you by the Court, after which the attorneys may make their arguments.
You will then be given written instructions of the Court to take with you to your jury room. You will go to that room, select a foreperson, deliberate and arrive at your verdict.
Sometimes there are delays or conferences out of your hearing with the attorneys about matters of law. There are good reasons for these delays and conferences. The Court is confident that you will be patient and understanding. We will have recesses from time to time.
Page 355The following two instructions of law are for your guidance in this case. These two, along with other instructions in writing read to you at the close of all the evidence, will be handed to you at that time to take to your jury room.
Page 356In determining the believability of a witness and the weight to be given to the testimony of a witness, you may take into consideration the witness' manner while testifying, the ability and opportunity of the witness to observe and remember any matter about which testimony is given, any interest, bias or prejudice the witness may have, the reasonableness of the witness' testimony considered in light of all of the evidence in the case and any other matter that has a tendency and reason to prove or disprove the truthful testimony -- the truthfulness of the testimony of the witness.Faithful performance by you of your duties as jurors is vital to the administration of justice. You should perform your duties without prejudice or fear and solely from a fair and impartial consideration of the whole case.
From time to time the attorneys may make objections. They have a right to do so and are only doing their duty as they see it. You should draw no inference from the fact that an objection has been made. If the Court sustains an objection to a question, you will then disregard the entire question. And you should not speculate as to what the answer of the witness might have been.The same applies to exhibits offered, but excluded from evidence after an objection has been sustained. You will also disregard any answer or other matter which the Court directs you not to consider and anything the Court orders stricken from the record.
The opening statements of the attorneys are not evidence. Also, you must not consider as evidence any statement or remark or argument by any of the attorneys addressed to another attorney or to the Court.
These agreements and stipulations become part of the evidence and are to be considered by you as such.