1 IN THE MISSOURI COURT OF APPEALS 
WESTERN DISTRICT 
2 
3 STATE OF MISSOURI, ) 
) 
4 Respondent, ) 
) 
5 v. ) WD No. 66271 
) 
6 RYAN WILLIAM FERGUSON, ) 
) 
7 Appellant. ) 
8 
IN THE CIRCUIT COURT OF MISSOURI 
9 BOONE COUNTY, 13th JUDICIAL CIRCUIT, DIVISION III 
Honorable Ellen S. Roper, Judge 
10 
11 STATE OF MISSOURI, ) 
) 
12 Plaintiff, ) 
) 
13 v. ) Case No. 04CR165368-01 
) 
14 RYAN WILLIAM FERGUSON, ) 
) 
15 Defendant. ) 
16 
RECORD ON APPEAL - TRANSCRIPT 
17 Volumes I - IV of VIII 
Pages 1 - 1066 
18 
19 APPEARANCES 
20 For Plaintiff: For Defendant: 
21 Mr. Kevin M. J. Crane Mr. Charles M. Rogers 
Prosecuting Attorney Mr. Jeremy S. Weis 
22 Mr. Daniel Knight 1000 Walnut, Suite 1600 
Ms. Nichole Gorovsky Kansas City, Missouri 
23 Assts. Prosecuting Attorney Ms. Kathryn Benson 
705 East Walnut 222 North Eighth Street 
24 Columbia, Missouri Columbia, Missouri 
Diana M. Taylor, RDR, CRR, CCR #293 
Official Court Reporter, Division III 
Thirteenth Judicial Circuit of Missouri 
 1 T R I A L 
2 The trial began in Lincoln County on October 14, 2005, 
3 before the Honorable Ellen S. Roper, Judge of Division III of 
4 the Thirteenth Judicial Circuit of Missouri, at Columbia. 
5 Mr. Kevin M. J. Crane, Boone County Prosecuting Attorney, 
6 and Mr. Daniel K. Knight and Ms. Nicole Gorovsky, Assistants 
7 Prosecuting Attorney, appeared for the state. 
8 Mr. Charles M. Rogers, Mr. Jeremy S. Weis, and 
9 Ms. Kathryn Benson appeared for the defendant. 
10 - - - 
11 (On October 13, 2005, Deputy Court Marshals Les Werner, 
12 Fred Baer, and Jeff Vogan were sworn by the Court to take 
13 charge of the jury.) 
14 - - - 
15 The following proceedings were held out of the presence 
16 of the jury: 
17 THE COURT: Case Number 165368-01, State of Missouri 
18 versus Ryan William Ferguson. What says the state? 
19 MR. CRANE: Ready, Judge. 
20 THE COURT: And tell me for the record who appears 
21 for the state today. 
22 MR. CRANE: I'm Kevin Crane. Dan Knight, assistant 
23 prosecutor. 
24 THE COURT: All right. 
25 MR. CRANE: First assistant prosecutor, I should 
108 
 1 say. Sorry. 
2 THE COURT: And what says the defendant? 
3 MR. ROGERS: Defendant is ready for trial, Your 
4 Honor. The defendant, Ryan Ferguson, appears in person and 
5 by counsel: Charles Rogers, Jeremy Weis, and Kathryn Benson. 
6 THE COURT: All right. Are there any preliminary 
7 matters for the state? 
8 MR. CRANE: Judge, we've filed, for your acceptance, 
9 a Substitute Information that incorporates various 
10 endorsements that the state has made, and further gives the 
11 defense notice that, if there is a lesser included 
12 instruction as to felony murder, it would be in the -- 
13 premised on the crime of robbery in the first degree. There 
14 was a typographical error I believe in Count II, wherein we 
15 repeated the defendant's name instead of Chuck Erickson's 
16 name, and some other esoteric things I might have forgotten. 
17 I don't believe there's any objection to the filing of that. 
18 MR. ROGERS: That is correct, Your Honor. We have 
19 no objection to the filing of the Substitute Information or 
20 to the endorsement of the additional witnesses. And 
21 Mr. Ferguson would waive formal arraignment on the Substitute 
22 Information and of course enter pleas of not guilty to all 
23 charges. 
24 THE COURT: Well, the clerk has anticipated my 
25 ruling and your lack of objection, because it's shown as 
109 
 1 filed on the 6th of October. But I will actually show that 
2 it is filed on today's date, which is October the 14th. And 
3 that defendant does waive formal arraignment, enters pleas of 
4 not guilty to Counts I and II. And the motion to endorse 
5 Keith Hoskins and Jenny Atwell are -- that is sustained. 
6 They are not shown on this original -- 
7 MR. CRANE: I'm sorry? 
8 THE COURT: They're not shown on the Substitute 
9 Information? Or they included on the Substitute Information? 
10 MR. CRANE: The last two people? 
11 THE COURT: Yes. 
12 MR. CRANE: Yeah. Keith Hoskins and Jenny Atwell. 
13 THE COURT: Yes. I see they're shown as the last 
14 two witnesses on that. 
15 MR. CRANE: Yeah. 
16 THE COURT: So that's just duplicative; is that 
17 correct? 
18 MR. CRANE: Yeah. 
19 THE COURT: Okay. Are there any other preliminary 
20 matters for the state? 
21 MR. CRANE: Judge, by agreement, and I'll stand 
22 corrected if I'm wrong on that, we would ask that Juror 
23 Number 46, Riney, who is a member of the court personnel, in 
24 fact a bailiff, that he be excused prior to bringing the 
25 panel in. 
110 
 1 THE COURT: What is -- 
2 MR. ROGERS: No objection, Your Honor. 
3 THE COURT: All right. 
4 MR. CRANE: He's on this morning's group. Number 
5 46. 
6 THE COURT: 46 is excused then, with consent of 
7 counsel. Any other? 
8 MR. CRANE: Yeah. This afternoon, Number 105, I 
9 think it's Fletcher, is a current member of the Lincoln 
10 County prosecutor's staff. We'd ask that she be -- is that 
11 the number? 105? Fletcher? 
12 THE COURT: I don't have 105 with me. I just 
13 brought in the morning jurors. But -- 
14 MR. ROGERS: That is the correct name and number, 
15 Your Honor. 
16 THE COURT: And he should -- is it a he or she? 
17 MR. ROGERS: She. Catherine. 
18 THE COURT: Catherine? She should be excused? 
19 MR. ROGERS: Yes, Your Honor. 
20 THE COURT: And so someone will notify her, I assume 
21 she may be in the courthouse as we speak, that she needn't -- 
22 MR. ROGERS: Oh, she's not supposed to be here until 
23 1:30. Oh, she's probably, yeah, someplace around here. 
24 THE COURT: She's probably working here. 
25 MR. ROGERS: Right. 
111 
 1 THE COURT: All right. Any other jurors? We had 
2 previously determined that Juror Number 30 was a convicted 
3 felon, did not have rights restored, from the morning panel, 
4 and he is excused as well. Any others that we know have not 
5 disclosed that they are convicted felons and should be 
6 excused? Mr. Crane? 
7 MR. CRANE: Not that I -- not that I'm aware off. 
8 I'm all ears if there's somebody else. 
9 MR. ROGERS: I'm not aware of -- 
10 CIRCUIT CLERK HOUSTON: I think we might want to 
11 check on David Rice. 
12 THE COURT: David Rice? 
13 CIRCUIT CLERK HOUSTON: We may want to check on him. 
14 THE COURT: What number is he? 
15 CIRCUIT CLERK HOUSTON: He's Number 77. 
16 THE COURT: Okay. He's in the afternoon? Number 
17 77. 
18 MR. CRANE: Wait a minute. What was the number 
19 again on that, Judge? 
20 THE COURT: 77. Rice. R-i-c-e. 
21 CIRCUIT CLERK HOUSTON: I'm not -- it may be a 
22 different one, but I'm -- 
23 THE COURT: Our circuit clerk here thinks that she 
24 may know of one that has a conviction. 
25 MR. CRANE: Okay. That's afternoon? 
112 
 1 THE COURT: An afternoon. 
2 MR. CRANE: Can we -- maybe we can check on that. 
3 THE COURT: During a recess. 
4 CIRCUIT CLERK HOUSTON: Yes, I will. 
5 MR. CRANE: Judge, what about Number 9, Gary 
6 Dennison? We're showing he has a 1997 DWI conviction. 
7 Received a three-year sentence in the department of 
8 corrections. 
9 THE COURT: He was one of the ones that had 
10 indicated that he had been convicted of a traffic -- of a 
11 crime other than traffic offenses. And I was going to -- I'm 
12 not going to ask each one of those individually, but I'll ask 
13 those that checked it if they -- if it was perhaps a felony. 
14 I have to believe that, if he served time in the department 
15 of corrections, it wasn't on a misdemeanor. 
16 MR. CRANE: Well, we show -- our records indicate 
17 that he has -- he was convicted and received a three-year 
18 sentence. Whether or not he did the time or got probation, I 
19 don't know, but we'd ask that he be excused. 
20 MR. ROGERS: I don't have a problem with that, 
21 Judge. We don't have obviously access to the records that 
22 the state has access to, so. 
23 THE COURT: Do you know where he was convicted, 
24 Mr. Crane? Was it in Lincoln County? 
25 MS. MARSDEN: I can find it in just a minute. 
113 
 1 THE COURT: While we're waiting for that, I note 
2 that the prosecuting attorney of Lincoln County will be 
3 assisting in this case; is that correct? Just in the voir 
4 dire? 
5 MR. CRANE: Yeah. He's going to be sitting with my 
6 investigator during voir dire. 
7 THE COURT: All right. And I suspect there may be 
8 people that know him or might be related to him. If you 
9 would, for the record, give me your name, please. 
10 MR. RICHARDS: John Richards. 
11 THE COURT: Yes, Mr. Richards. 
12 MR. CRANE: Judge, I'm going to show the -- what's 
13 that guy's name? Dennison information -- 
14 THE COURT: Gary Dennison. 
15 MR. CRANE: -- on that felony to the defense 
16 attorney here. 
17 (Mr. Crane tendering information to Mr. Rogers.) 
18 MR. ROGERS: This record does, in fact, indicate a 
19 felony conviction, Your Honor. And we would have no 
20 objection to him being stricken. There's no need to bring 
21 him in and embarrass him in front of everybody else. 
22 THE COURT: No. I try not to. And that's why I 
23 said, of those that have checked that they had convictions 
24 other than traffic offenses, he was one, 22 was one, 34 was 
25 one, 35, 36 was one, of course 30, who's now off the panel, 
114 
 1 and 40 all had said they had convictions other than traffic 
2 offenses. I mean, it may be a misdemeanor assault, for all I 
3 know, which is certainly an offense other than a traffic 
4 offense. 
5 Other than those issues -- 
6 MR. ROGERS: Your Honor, there was another juror who 
7 was excused for a medical emergency in his family. And I 
8 didn't get the number of that juror. 
9 THE COURT: That was Number 71. It was in the 
10 afternoon. 
11 MR. ROGERS: Right. 
12 THE COURT: As I recall. 
13 MR. ROGERS: Yeah. 
14 THE COURT: I don't have the name with me right 
15 here, because I don't have the afternoon docket. 
16 MR. ROGERS: That triggered my recollection. 
17 THE COURT: But it was 71, I believe. 
18 MR. ROGERS: Right. 
19 THE COURT: Can you tell me the name and it will 
20 ring a bell maybe? 
21 MR. ROGERS: The name is Richard Wienecke. 
22 THE COURT: Yeah, Wienecke. That was the one that 
23 -- whose wife had a blood clot. 
24 MR. ROGERS: For the record, we have no objection to 
25 that either. 
115 
 1 THE COURT: All right. 
2 MR. CRANE: Which one was that? 
3 MR. ROGERS: 71 -- 
4 THE COURT: Wienecke. 
5 MR. ROGERS: -- Wienecke -- 
6 THE COURT: We already -- 
7 MR. ROGERS: -- from this afternoon. We already did 
8 that, yes. 
9 THE COURT: Well, I think we talked about it off the 
10 record, but did not make a record of it. 
11 Any other things we need to take up before we bring 
12 the jurors in? 
13 MR. CRANE: Are we going to start at 9 or -- 
14 THE COURT: We'll start -- I imagine we'll start at 
15 9. 
16 Do we know how many -- 
17 BAILIFF BOEDEKER: I'm going to check now, ma'am. 
18 THE COURT: Okay. We may have some empty spaces, 
19 and I want to give them an opportunity to be here. I was 
20 sort of hoping we might have enough in the first group to get 
21 a jury, but I think it's -- oh. I will mention this to you. 
22 I do want to have at least three alternates. And I assume we 
23 could get four for the price of three. I just hate to have 
24 something happen. I think two alternates would be sort of 
25 iffy, not to have an extra third one. 
116 
 1 What is the state's position. 
2 MR. CRANE: I don't know. I -- I -- we've got two 
3 groups. If we got to do two voir dires, so be it. I mean, I 
4 was going to say, if we get this morning group done and we 
5 got enough for two alternates, I'm willing to role the dice 
6 and go back to Boone County and try the case. I would just 
7 think, golly, doing a whole afternoon for one alternate, I 
8 don't know if that's going to happen, but I'd almost say the 
9 same thing if we just got one alternate. Rather than doing 
10 an afternoon of voir dire for two more. But I'll -- 
11 THE COURT: Considering how much time it takes to 
12 organize these kinds of trials. And with one alternate, I -- 
13 I know, from past experiences, we've had to use alternates. 
14 MR. CRANE: Yeah, I know, but -- but -- 
15 THE COURT: Like the man who was taking -- or the 
16 wife that was taking the kids to South America and the 
17 husband was on the jury. And she was about to leave the 
18 country, and he needed to -- I mean, all kinds of things can 
19 happen that you would never think would happen. 
20 MR. CRANE: Well, I know. Can we cross that bridge 
21 when we get to it? 
22 THE COURT: All right. 
23 MR. CRANE: What I'm saying may not even, you 
24 know -- 
25 THE COURT: It may not be there. But I -- just let 
117 
 1 me have a feeling for what the defense feels. 
2 MR. ROGERS: Your Honor, I tend to agree with 
3 Mr. Crane; that if we've got enough for two alternates at the 
4 end of the morning, it's kind of a waste of time for a third 
5 alternate. 
6 THE COURT: I would probably -- 
7 MR. ROGERS: Two of the last three trials I've had, 
8 we've used alternates. And in one of those trials, we 
9 actually used two alternates. But that was a trial that 
10 lasted six weeks. And I don't know that a -- in one week, 
11 losing more than one alternate would be beyond my experience. 
12 Having said that, I don't want to jinx us by -- 
13 THE COURT: Well, I would tend to go with two 
14 alternates. But not to have -- just to have one alternate 
15 would really concern me a great deal. You just never know -- 
16 like this man's wife that had a blood clot. You just don't 
17 know when things like that in the family might come up. And 
18 I -- 
19 MR. ROGERS: And especially in a case where there is 
20 going to be a sequestered -- or an out-of-town experience for 
21 them. There might be somebody who something happens tomorrow 
22 or Sunday that keeps them from being there, so -- 
23 THE COURT: That's true. 
24 MR. ROGERS: -- start off using an alternate before 
25 we get started, so. 
118 
 1 THE COURT: That would concern me. 
2 That brings me to the question of how long you 
3 anticipate, assuming we start Monday, this case -- the 
4 longest that it would go would be through Saturday, you 
5 believe? 
6 MR. CRANE: Yeah. I mean, we've always been saying 
7 we thought we'd get done by Friday, but, you know. 
8 THE COURT: But I want to give people the longest. 
9 If someone's favorite niece is getting married on Saturday, 
10 and I tell them they can go home on Friday, and they can't, I 
11 don't want to have a problem with that situation. 
12 MR. ROGERS: I could anticipate there still being 
13 deliberations on Saturday. 
14 THE COURT: Yeah. So if I tell them through 
15 Saturday, they should plan on being here through Saturday, 
16 although we'll do our best to finish earlier than then -- 
17 than that, that's the latest you think that they would be 
18 here. Absent some very unusual circumstance. Because they 
19 can't -- 
20 MR. CRANE: I think that's put -- fine by me, yeah. 
21 THE COURT: I mean -- and we're not talking about a 
22 two-week trial, are we? 
23 MR. ROGERS: No. I hope not, Your Honor. 
24 THE COURT: Okay. And I assume that everyone that's 
25 endorsed on this Substitute Information, possibly not 
119 
 1 everyone is going to be called. 
2 MR. CRANE: We're going to call every single one of 
3 them. 
4 MR. ROGERS: In the order that -- 
5 MR. CRANE: No. No, we're not. 
6 THE COURT: All right. 
7 How many jurors do -- 
8 BAILIFF BOEDEKER: Ma'am, there's only two. 
9 THE COURT: Two missing? 
10 BAILIFF BOEDEKER: Yes, ma'am. 
11 THE COURT: And who are the two that are missing? 
12 BAILIFF BOEDEKER: I didn't get that. 
13 THE COURT: Okay. That's all right. What is your 
14 procedure here if someone doesn't show up? Do you call them 
15 and say -- 
16 BAILIFF BOEDEKER: We call them and -- 
17 THE COURT: Tell them to come in right away? 
18 BAILIFF BOEDEKER: Yes, ma'am. 
19 THE COURT: Okay. 
20 BAILIFF BOEDEKER: I tell them to come in at 12:30. 
21 THE COURT: You'd put them in the afternoon. 
22 BAILIFF BOEDEKER: Yes, ma'am. 
23 THE COURT: Okay. So out of these 52, we already 
24 have three that are excused. And so that would bring us down 
25 to 49. And two more off of that would be 47. Okay. Well, 
120 
 1 let's just cross our fingers and give them until 9:00 to 
2 appear. 
3 BAILIFF BOEDEKER: All right, ma'am. May I tell 
4 Mr. Riney he can leave? 
5 THE COURT: Absolutely. 
6 BAILIFF BOEDEKER: So he could go home and change 
7 and -- I need the help downstairs. 
8 THE COURT: Okay. You may tell Mr. Riney -- you may 
9 tell Mr. Dennison, Number 9; Mr. Riney, who is Number -- 
10 BAILIFF BOEDEKER: 46. 
11 THE COURT: -- 46; Mr. Dennison, who is Number 9 -- 
12 BAILIFF BOEDEKER: All right, ma'am. 
13 THE COURT: -- and Mr. Stever, S-t-e-v-e-r. And he 
14 may have been already excused -- 
15 BAILIFF BOEDEKER: Yes, ma'am. 
16 THE COURT: -- and left the building, but he may 
17 leave. 9, 30, and 46. 
18 BAILIFF BOEDEKER: Yes, ma'am. Thank you. 
19 THE COURT: All right. And we'll just hope that 
20 maybe one or -- one or two extra will be here. 
21 MR. ROGERS: Your Honor, while we're talking about 
22 numbers, I just want to remind the Court for the record that 
23 in our pleading concerning voir dire procedures, which also 
24 talked about a jury questionnaire and things like that, we 
25 did assert the position that we should be entitled to nine 
121 
 1 strikes per side because this is a -- the crime of first 
2 degree murder is punishable by death, according to the 
3 statute, even though the death penalty is not a possibility 
4 in this case. And I don't know that you've specifically 
5 ruled on that issue. I think we're operating under the 
6 assumption that you're going to say no, you get six strikes 
7 per side, but I did want to bring that to your attention so I 
8 wouldn't be sandbagging you and just leaving it buried in the 
9 file. 
10 THE COURT: I appreciate your bringing that to my 
11 attention. I have tried first degree murder cases where the 
12 death penalty has been waived, for one reason or another. 
13 Not sought or waived at the time of trial. 
14 MR. ROGERS: Right. 
15 THE COURT: And the procedure has always been to do 
16 six strikes. But if you have an appellate court opinion that 
17 says you're entitled to nine strikes, I certainly will give 
18 you nine strikes. 
19 MR. ROGERS: Your Honor, in the pleading I point out 
20 the appellate courts' opinions that say that what you have 
21 done in the past is the correct thing to do. I attempt to 
22 distinguish them and point out how they're wrongly decided. 
23 THE COURT: All right. Well, I sometimes don't 
24 agree with them myself, sir, but I'm bound to follow their 
25 opinions. And by ruling of the U. S. Supreme Court, 
122 
 1 Mr. Ferguson, if convicted, could not be sentenced to death, 
2 under the current state of the law, even if the state had 
3 chosen to ask for the death penalty in this case, because of 
4 the age that he was at the time that the alleged crime 
5 occurred. So I will overrule your request to have nine 
6 strikes in this case. 
7 Anything else we need to take up? 
8 MR. ROGERS: Just from procedural aspects, assuming 
9 that a juror gives answers which appear to be disqualifying, 
10 would you like us to wait and make our motions for strikes 
11 for cause at the end of the voir dire? 
12 THE COURT: Absolutely. 
13 MR. ROGERS: Okay. 
14 THE COURT: Since we're having two different panels, 
15 yes. Because I don't want Juror Number 22 to figure out from 
16 Juror 21's absence what to say in order -- I notice there was 
17 one person that said they can't judge other people. 
18 MR. ROGERS: Right. 
19 THE COURT: And, you know, I would -- I'll give you 
20 full opportunity to explore with whatever juror, you know, 
21 says something, but... Absent someone saying, "I came in 
22 with the flu and I think I'm going to throw up right now," I 
23 let those go right away. 
24 MR. ROGERS: Fair enough. 
25 THE COURT: But anything that would be a challenge 
123 
 1 for cause, certainly if you'll wait until the panel goes out, 
2 so that the others -- and I'll give you full opportunity to 
3 make an objection -- 
4 MR. ROGERS: Okay. Thank you. 
5 THE COURT: -- before we seat any -- 
6 MR. ROGERS: That's how I prefer to do it too, but 
7 some judges do it differently. 
8 THE COURT: Well, I think -- and if you're 
9 overruled, I imagine, and the juror somehow stays on that 
10 jury, that would be a very unpleasant thing for an attorney 
11 to have to deal with, so I agree, that's what we need to do. 
12 DEPUTY COURT MARSHAL WERNER: As of right now, we're 
13 just missing one. 
14 THE COURT: Oh. 
15 DEPUTY COURT MARSHAL WERNER: And they don't 
16 anticipate that individual being here. 
17 THE COURT: Is this the one that has failed to 
18 appear on three prior occasions? 
19 DEPUTY COURT MARSHAL WERNER: I don't know that. 
20 THE COURT: And who has -- is the absent juror the 
21 one who doesn't -- 
22 BAILIFF BOEDEKER: Well -- 
23 THE COURT: -- seem to want to come to court? 
24 BAILIFF BOEDEKER: We have one, ma'am. 
25 THE COURT: Yes. And there was one juror I was 
124 
 1 informed previously who had been summoned and then the 
2 sheriff went after him -- 
3 BAILIFF BOEDEKER: Oh, yes, ma'am. That was 
4 Number -- 
5 DEPUTY COURT MARSHAL WERNER: He's here. 
6 THE COURT: He's here. 
7 BAILIFF BOEDEKER: -- Number 14. 
8 THE COURT: Number 14's here. 
9 BAILIFF BOEDEKER: Yes, ma'am. 
10 THE COURT: And you -- and there's reason to believe 
11 that you don't think that the other juror will appear? 
12 BAILIFF BOEDEKER: Probably not, ma'am. 
13 THE COURT: Okay. 
14 BAILIFF BOEDEKER: The clerk is -- the other clerk 
15 is calling them, lining them up in the hallway now. So 
16 whenever you're ready, we'll -- 
17 THE COURT: Okay. Well, we're ready when you're 
18 ready. 
19 BAILIFF BOEDEKER: All right. 
20 MR. ROGERS: Break first, Judge? 
21 THE COURT: Oh, yeah. Wait. Let the attorneys go 
22 out and take a quick break. 
23 BAILIFF BOEDEKER: All right, ma'am. 
24 THE COURT: I mean, they can be lined up. 
25 Anyone else that needs to take a quick break. 
125 
 1 (Recess taken.) 
2 - - - 
3 The following proceedings were held in the presence of 
4 the jury: 
5 THE COURT: Be seated, please. 
6 Good morning, ladies and gentlemen. Thank you so 
7 much for arriving so promptly. I'm Ellen Roper. I'm a 
8 circuit judge up in Boone and Callaway Counties. 13th 
9 Judicial Circuit. 
10 I will be introducing some of the other parties here 
11 shortly, but my court reporter is sitting in front of the 
12 bench, and her name is Diana Taylor. She's writing down what 
13 I'm saying at this particular point, but most importantly 
14 she'll be writing down your answers to questions concerning 
15 your qualifications as jurors as the trial goes on. 
16 Because this is a large courtroom, and you don't 
17 have the advantage of having a hand mic or even a standing 
18 mic to come up to, I'm going to ask you that, if you are 
19 going to answer a question, that you stand. And I know some 
20 jurors are hesitant for their names to be used, and that's 
21 why on your tags you have a number. And if you are -- if you 
22 would rather not give your last name and you want to just say 
23 "Number 2" or "Number 6" or whatever your number is, that's 
24 fine, because we have a list both with names and numbers. 
25 You may give your last name if you wish. But if you would do 
126 
 1 that, that would help Diana make a record here, so that we 
2 would attribute your remark to you and not to someone else. 
3 If your answer is a "yes" or a "no" to a question, I 
4 know what shaking your head up and down or sideways means, 
5 and I would bet that all the attorneys and even Diana knows 
6 what that means also, but she'll just write you're shaking 
7 your head, and we won't know if you're looking at the 
8 ceiling, at the lights, or mean a yes or a no. So we're 
9 going to have to ask you to say "yes" or "no" if that is the 
10 response to a question. 
11 I'm assuming that everyone whose names were called 
12 were here. There were some people who couldn't come to our 
13 affair today, but we're sorry, and maybe they'll get an 
14 opportunity in the future to appear. 
15 Today's trial for which you have been called for 
16 jury service is a criminal case. The State of Missouri has 
17 charged that the defendant, Ryan William Ferguson, has 
18 committed the offenses of murder in the first degree and 
19 robbery in the first degree. The defendant has pled not 
20 guilty to the charges. Thus, there are issues of fact which 
21 must be decided by a jury, subject to instructions concerning 
22 the law, which the Court will give to the jury. The jury is 
23 obligated to follow those instructions. 
24 A trial of a criminal case does begin with a 
25 selection of a jury of qualified and impartial people. In 
127 
 1 order to obtain such a jury, all of you have been summoned as 
2 prospective jurors. From your number, a jury will be 
3 selected to hear the case. 
4 It is necessary that you be asked various questions. 
5 Your answers will assist the Court in determining whether it 
6 should excuse you from serving in this case and will assist 
7 the attorneys in making their selection of those of you who 
8 will hear the case. Thus, the questions which will be asked 
9 of you are not meant to pry into your personal affairs. 
10 Rather they are the necessary process of selecting a jury. 
11 Since this is an important part of the trial, you 
12 are required to be sworn before questions are asked. Please 
13 rise now and be sworn to answer questions. 
14 THE COURT: If you'd raise your right hands, please. 
15 (Venire panel sworn by Melba Houston, Circuit 
16 Clerk.) 
17 - - - 
18 VOIR DIRE EXAMINATION 
19 BY THE COURT: 
20 Be seated, ladies and gentlemen. 
21 Please listen carefully to all questions. Take your 
22 time in answering questions. Some of the questions may 
23 require you to recall experiences during your entire 
24 lifetime. Therefore, search your memory before answering. 
25 If you do not understand the question, raise your hand and 
128 
 1 say so. If, later on, during your examination, you remember 
2 something which you failed to answer before, or which would 
3 modify an answer that you gave before, please raise your hand 
4 and you will be asked about it. Your answers must not only 
5 be truthful but they must be full and complete. If your 
6 answer to any of these questions involves matters which are 
7 personal or private, you may so indicate and you will be 
8 given the opportunity to state your answer up here at the 
9 bench. The attorneys will hear your answers, but the other 
10 jurors will not. 
11 The trial of a lawsuit involves considerable time 
12 and effort, and the parties are entitled to have their rights 
13 finally determined. The failure on your part to fully and 
14 truthfully answer questions during this stage of the trial 
15 could force the parties to have to retry this lawsuit at some 
16 future date. 
17 The Court will now read to you an instruction on the 
18 law applicable to all criminal cases. 
19 The charge of any offense is not evidence, and it 
20 creates no inference that any offense was committed or that 
21 the defendant is guilty of an offense. 
22 The defendant is presumed to be innocent unless and 
23 until, during your deliberations upon your verdict, you find 
24 him guilty. This presumption of innocence places upon the 
25 state the burden of proving beyond a reasonable doubt that 
129 
 1 the defendant is guilty. 
2 A reasonable doubt is a doubt based upon reason and 
3 common sense after careful and impartial consideration of all 
4 the evidence in the case. 
5 Proof beyond a reasonable doubt is proof that leaves 
6 you firmly convinced of the defendant's guilt. The law does 
7 not require proof that overcomes every possible doubt. If, 
8 after your consideration of all the evidence, you are firmly 
9 convinced the defendant is guilty of the crime charged, you 
10 will find him guilty. If you are not so convinced, you must 
11 give him the benefit of the doubt and find him not guilty. 
12 Is there any of you who, if selected for a juror, 
13 could not, for any reason, follow that instruction? If so, 
14 would you please raise your hand? I see no hands, so I have 
15 to assume, and counsel likewise will assume, that you would 
16 be able to follow that instruction. 
17 It is your duty to follow the law as the Court gives 
18 it to you in these instructions even though you may disagree 
19 with it. Are there any of you who would not be willing to 
20 follow all instructions that the Court will give to the jury? 
21 If so, would you please raise your hand. 
22 And I understand that that might be a difficult 
23 question, ladies and gentlemen. I've just read to you the 
24 one on reasonable doubt. I haven't read you all the other 
25 instructions the Court would give you. The point of the 
130 
 1 question is to find out whether you feel so strongly about 
2 some area of law, or perhaps the law that might relate to the 
3 charges in this case, that you would not be able to follow 
4 the law. And I see no hands in response. So I am assuming 
5 that, even if you disagreed with what the law was, you would 
6 be able to follow it. 
7 The State of Missouri in this case is represented by 
8 two attorneys. Mr. Kevin Crane is the prosecuting 
9 attorney -- 
10 MR. CRANE: Good morning. 
11 THE COURT: -- of Boone County, Missouri. And this 
12 is where this case originated. 
13 I need to know if any of you know him personally, 
14 related to him by blood or marriage, or have had any kind of 
15 dealings of a professional nature with him in any sense of 
16 that word. If you'd raise your hand, please. I don't see 
17 any hands, so I assume that you do not. 
18 His first assistant attorney -- assistant 
19 prosecuting attorney is Mr. Dan Knight. And he is standing 
20 at counsel table. 
21 I'd ask the same question of Mr. Knight. Are any of 
22 you personally acquainted with him, related to him by blood 
23 or marriage, or have you had any kind of professional 
24 dealings with him at any time? He practices with Mr. Crane 
25 in Boone County. 
131 
 1 You may be seated. 
2 I don't see any hands there. 
3 Let me introduce -- and you probably know him. 
4 Mr. John Richards is assisting Mr. Crane today, just for 
5 today. He is the prosecuting attorney here in Lincoln 
6 County. And I need to know if any of you are acquainted with 
7 him, related to him by blood or marriage, or have had any 
8 kind of dealings with him of a professional nature. If you 
9 would raise your hand and let me call on you. 
10 Juror Number 6, would you stand and tell me, how do 
11 you know Mr. Richards? 
12 VENIREPERSON GALES: I am one of his son's baseball 
13 coach. Out of Moscow Mills. 
14 THE COURT: Okay. And is that currently? A 
15 baseball co -- you're doing -- 
16 VENIREPERSON GALES: In the summertime. 
17 THE COURT: -- whenever the season is appropriate. 
18 VENIREPERSON GALES: Yes. In the summertime. 
19 THE COURT: Okay. Have you had any social 
20 relationship with him, such as visiting in his home or having 
21 him in your home? 
22 VENIREPERSON GALES: Yes. 
23 THE COURT: Okay. And was that just last summer? 
24 VENIREPERSON GALES: Yes. 
25 THE COURT: How long have you known him? 
132 
 1 VENIREPERSON GALES: Six, seven months. Eight 
2 months, tops. 
3 THE COURT: Would the fact that he is not an 
4 attorney of record, but assisting the state here in selecting 
5 a jury, would that in any way influence your decision here 
6 today? 
7 VENIREPERSON GALES: No, it would not. 
8 THE COURT: Would it influence your decision later 
9 on in the case if you're selected as a juror? 
10 VENIREPERSON GALES: No. 
11 THE COURT: Would you be able, if chosen as a juror, 
12 to reach verdicts in this case based only on the evidence 
13 that you might see and hear in the courtroom? 
14 VENIREPERSON GALES: Yes, I would. 
15 THE COURT: Okay. Thank you so much, Juror Number 
16 6. 
17 VENIREPERSON GALES: You're welcome. 
18 THE COURT: Anyone else that might know 
19 Mr. Richards? And let me -- let me go across on the first 
20 row, and then I'll go into the second row. 
21 Is your name -- it's Juror Number 7? 
22 VENIREPERSON WAECHTER: Yes, ma'am. 
23 THE COURT: Okay. Those sitting on the first row 
24 probably don't need to stand, unless you have a really soft 
25 voice. 
133 
 1 How do you know Mr. Richards? 
2 VENIREPERSON WAECHTER: Just from professional 
3 business dealings with -- 
4 THE COURT: Okay. 
5 VENIREPERSON WAECHTER: -- insufficient checks, bad 
6 checks. 
7 THE COURT: Okay. And in connection with your 
8 business, he has filed on or collected bad checks for you. 
9 VENIREPERSON WAECHTER: Yes. 
10 THE COURT: How long a period of time has that gone 
11 on? 
12 VENIREPERSON WAECHTER: What? Five years, six -- 
13 THE COURT: Do you have a social relationship with 
14 him? 
15 VENIREPERSON WAECHTER: No. 
16 THE COURT: You don't visit in his home or he comes 
17 to your house? 
18 VENIREPERSON WAECHTER: No. 
19 THE COURT: Would the fact that he -- that you've 
20 had a business relationship with him over that period of 
21 time, would that influence your decision if you're selected 
22 as a juror? 
23 VENIREPERSON WAECHTER: No, ma'am. 
24 THE COURT: Would you be able to reach verdicts in 
25 this case, if selected, based only on the evidence that you 
134 
 1 see and hear in the courtroom? 
2 VENIREPERSON WAECHTER: Yes. 
3 THE COURT: Thank you, sir. 
4 I saw -- let me go to this side, and then I'll go to 
5 the other. I don't see any on the second row. Yes, I do. 
6 Are you Juror Number 16? 
7 VENIREPERSON CAVINESS: Yes. 
8 THE COURT: And how do you know Mr. Richards? 
9 VENIREPERSON CAVINESS: I worked for the Lincoln 
10 County Sheriff's Department, in their processing of their 
11 court cases. 
12 THE COURT: Okay. In the warrant section? 
13 VENIREPERSON CAVINESS: Yes. 
14 THE COURT: And do you -- you don't still work 
15 there. 
16 VENIREPERSON CAVINESS: No, I don't. 
17 THE COURT: So in connection with process -- were 
18 they criminal warrants as well as serving other process? 
19 VENIREPERSON CAVINESS: Yes. 
20 THE COURT: Okay. And how long did you work in that 
21 department? 
22 VENIREPERSON CAVINESS: Four years. 
23 THE COURT: Pardon? 
24 VENIREPERSON CAVINESS: Four years. 
25 THE COURT: And during that four-year period of 
135 
 1 time, was Mr. Richards the prosecuting attorney here? 
2 VENIREPERSON CAVINESS: Yes, he was. 
3 THE COURT: And anything more than receiving 
4 paperwork from his office? Did you have any other kind of 
5 business dealings with him? 
6 VENIREPERSON CAVINESS: No, I did not. 
7 THE COURT: Do you have a social relationship with 
8 him? 
9 VENIREPERSON CAVINESS: No. 
10 THE COURT: Would the fact that -- and how long has 
11 it been since you worked there? 
12 VENIREPERSON CAVINESS: Four years. 
13 THE COURT: Okay. It was four years ago that you 
14 worked there? 
15 VENIREPERSON CAVINESS: Yes. 
16 THE COURT: And for how long a period of time? 
17 VENIREPERSON CAVINESS: Four years. 
18 THE COURT: Four years also. Okay. Would the fact 
19 that that length of time ago and for four years that you have 
20 dealt with him on serving -- or the serving of warrants, 
21 would that influence your decision in any way? 
22 VENIREPERSON CAVINESS: No. 
23 THE COURT: And that's a no? 
24 VENIREPERSON CAVINESS: No. 
25 THE COURT: Okay. Thank you. And if selected, 
136 
 1 Juror Number 16, would you be able to reach a verdict based 
2 only -- or verdicts based only on the evidence that you might 
3 see and hear in this courtroom? 
4 VENIREPERSON CAVINESS: Yes. 
5 THE COURT: Thank you, ma'am. 
6 All right. I did see a hand over here. And would 
7 you tell me your number, sir. 
8 VENIREPERSON HARRIS: 22. 
9 THE COURT: Yes. Juror 22, how do you know 
10 Mr. Richards? 
11 VENIREPERSON HARRIS: Mr. Richards' office has 
12 prosecuted me in court before. And -- misdemeanor trials. 
13 DWI and domestic violence. 
14 THE COURT: Okay. 
15 VENIREPERSON HARRIS: And also, my fiancee's sister 
16 worked for Mr. Richards for quite a few years. 
17 THE COURT: All right. No longer does, but did. 
18 VENIREPERSON HARRIS: No longer does. 
19 THE COURT: How long ago was it that Mr. Richards' 
20 office had some dealings with you of a professional -- 
21 VENIREPERSON HARRIS: The last one was in 1996, I 
22 believe. 
23 THE COURT: So that's nine years ago, approximately? 
24 VENIREPERSON HARRIS: Yes, ma'am. 
25 THE COURT: And it didn't involve a felony, but -- 
137 
 1 VENIREPERSON HARRIS: No, ma'am. 
2 THE COURT: -- were only misdemeanor charges. And 
3 Mr. Richards was the prosecutor at that time. 
4 VENIREPERSON HARRIS: His office. Yes, his office 
5 was. 
6 THE COURT: He was -- 
7 VENIREPERSON HARRIS: Yes, he was. I'm sorry. 
8 THE COURT: -- the prosecutor, but he may not have 
9 been the attorney that you dealt with. 
10 VENIREPERSON HARRIS: Yes, ma'am. 
11 THE COURT: Okay. And I don't mean to embarrass 
12 you, but do you have hard feelings either against 
13 Mr. Richards or the state in general? 
14 VENIREPERSON HARRIS: No, ma'am. 
15 THE COURT: If selected, Juror 22, as a juror, would 
16 you be able to reach a verdict in this -- or verdicts in this 
17 case based solely on the evidence that you would see and hear 
18 in this courtroom -- or here in the courtroom? 
19 VENIREPERSON HARRIS: Yes, ma'am. 
20 THE COURT: Okay. Thank you, sir. 
21 Anyone else on the second row, either side? Okay. 
22 Let us go back to the third row. Anyone who knows 
23 Mr. Richards, on either side of the aisle? Okay. The fourth 
24 row. 
25 Okay. If you would stand, please. And tell me your 
138 
 1 number. Or you can tell me your name, if you don't care 
2 to -- I mean, if you don't -- it doesn't bother you to reveal 
3 it. 
4 VENIREPERSON SCHISLER: Annette Schisler, Number 45. 
5 THE COURT: Okay. And how do you know Mr. Richards? 
6 VENIREPERSON SCHISLER: Mr. Richards helped draw up 
7 a will for my husband and I about 10 or 12 years ago. 
8 THE COURT: Okay. And that's in the civil practice 
9 of law, not in connection with his duties as prosecuting 
10 attorney. 
11 VENIREPERSON SCHISLER: Right. 
12 THE COURT: And has he done any other legal business 
13 for you? 
14 VENIREPERSON SCHISLER: No. 
15 THE COURT: And you said that was three or four 
16 years ago? 
17 VENIREPERSON SCHISLER: No. 10 or 12 years ago. 
18 THE COURT: 10 or 12 years ago. Would the fact that 
19 you chose to have him draft your wills that long ago 
20 influence your decision in this particular case? 
21 VENIREPERSON SCHISLER: No. 
22 THE COURT: Would you be able, Miss Schisler, to 
23 reach a verdict, if selected in this case, on both counts, 
24 based only on the evidence that you would see and hear in the 
25 courtroom? 
139 
 1 VENIREPERSON SCHISLER: Yes. 
2 THE COURT: Yes? 
3 VENIREPERSON SCHISLER: Yes. 
4 THE COURT: Okay. Thank you so much. You may be 
5 seated. 
6 Anyone else on that row? And then on the very back 
7 row, that would be the fifth row on the very back, is anyone 
8 acquainted with the prosecuting attorney in any way? All 
9 right. I don't see any hands, so I assume that you do not 
10 know him. And again, he's not an attorney in the case of 
11 record, but he is just assisting, and I thought I needed to 
12 ask those questions. 
13 Representing the defendant in this case is 
14 Mr. Charles Rogers. And he is standing at counsel table. 
15 MR. ROGERS: Good morning. 
16 THE COURT: He practices in Kansas City, but all 
17 throughout the state as well. And I need to know if any of 
18 you are acquainted with him, related to him by blood or 
19 marriage, or have had any kind of legal business with him. I 
20 do not see any hands, so I am assuming that you do not know 
21 him in any way. 
22 Also representing the defendant is Mr. Jeremy Weis. 
23 He is standing at counsel table. Need to know if any of you 
24 are acquainted with him, related to him by blood or marriage, 
25 have any legal business with him. And he too practices in 
140 
 1 Kansas City, but also throughout the state. I don't see any 
2 hands, so I assume that you do not know him in any way. 
3 Representing the defendant also is Miss Kathryn 
4 Benson. 
5 MS. BENSON: Good morning. 
6 THE COURT: She practices throughout the state, but 
7 she -- her office is in Columbia. I need to know if any of 
8 you are acquainted with her, related to her by blood or 
9 marriage, or whether she has done any legal business for you. 
10 All right. I don't see any hands, so I assume that you do 
11 not know her. 
12 The defendant in this case is sitting at counsel 
13 table. His name is Ryan William Ferguson. 
14 And Mr. Ferguson, if you would stand. 
15 I need to know if any of you are acquainted with 
16 Mr. Ferguson or related to him by blood or marriage. He is a 
17 resident of Columbia. I need to -- and that more I can 
18 only -- that is all that I know about him to tell you. But 
19 need to know if any of you are acquainted with him in any 
20 way. Okay. 
21 You may sit down, Mr. Ferguson. 
22 I don't see any hands. 
23 Ladies and gentlemen, I have some questions to ask 
24 you. Then you'll be relieved to know only one attorney on 
25 each side may ask questions. And hopefully we can move 
141 
 1 along. 
2 Let me just get a little bit of water, because my 
3 voice is giving out here. 
4 As I mentioned originally, this case originated in 
5 Boone County, Missouri. We are selecting a jury here in 
6 Lincoln County. And the jury in its work will have to be 
7 brought back to Columbia to hear the evidence in this case. 
8 We will provide transportation. We will provide room and 
9 board while you're there. And the very latest that I 
10 understand that the case will last will be into Saturday. 
11 Although we're hopeful that the case will conclude prior to 
12 Saturday. But I can't tell you that exactly at 4 p.m. on 
13 Friday that you would be back in Lincoln County. 
14 Understanding that, and understanding now is the 
15 time that you need to tell me and the attorneys in this case 
16 whether there is any kind of conflict that you would have in 
17 serving in this case, whatever the conflict is, we need to 
18 hear it now. And if it involves something of a personal 
19 nature, as I mentioned before, you may approach the bench. 
20 Let me start on the first row, and then I will move 
21 backwards into the jury box, to see what your conflicts might 
22 be. 
23 Anyone in the first row that has a conflict in 
24 serving in this case, understanding -- and I guess I should 
25 give you a little more information. It will be Sunday that 
142 
 1 you would be picked up and taken to Columbia, and trial would 
2 begin first thing on Monday morning. So if you have your 
3 favorite niece's wedding Saturday night, that is something 
4 you could go to. 
5 First row, any kind of conflict? 
6 Yes. Juror Number 7. What is your conflict? 
7 VENIREPERSON WAECHTER: I'm very sorry. I have to 
8 be in court here as a witness, and I just can't tell you the 
9 date. It's within the next week. 
10 THE COURT: Okay. Is it on a criminal case or a 
11 civil case? Do you know? Is it -- 
12 VENIREPERSON WAECHTER: I'm sure this is on a 
13 criminal case. We had a robbery committed against us. 
14 THE COURT: Okay. And is -- I guess I would have to 
15 find out from the prosecuting attorney here and/or -- 
16 VENIREPERSON WAECHTER: I can step outside and call 
17 and tell you exactly what it is or what date. 
18 THE COURT: All right. Can you tell me -- do you 
19 know the name of the defendant who is involved in the case? 
20 VENIREPERSON WAECHTER: No, I don't. I can get that 
21 for you if I step out in the hall -- 
22 THE COURT: Okay. 
23 VENIREPERSON WAECHTER: -- and I'll call and get 
24 that for you. 
25 THE COURT: Well, I tell you what. We are going to 
143 
 1 be taking a recess. I'm sure that we can't ask all the 
2 questions we need to ask in the time that would be 
3 reasonable. And we do take recesses from time to time, 
4 ladies and gentlemen. 
5 The prosecutor has indicated that he may go and 
6 check on that now anyway. But we do take recesses. 
7 VENIREPERSON WAECHTER: Okay. 
8 THE COURT: But you're not free just to wander 
9 anywhere in the courthouse or go to the clerk's office and 
10 look it up, so. We will -- we'll try to find that out and 
11 come back to you. But in the event that you're needed as a 
12 witness in a case next week, you would be unavailable, is 
13 what you're saying. 
14 VENIREPERSON WAECHTER: Yeah. I'm sure -- I just -- 
15 I never thought much about it, but it's the -- I think it's 
16 the -- I'm sure it's -- I think it's the 19th. 
17 THE COURT: All right. Well, we'll -- 
18 VENIREPERSON WAECHTER: I'm really sorry about it. 
19 I should have -- I never -- 
20 THE COURT: We'll check on that. 
21 VENIREPERSON WAECHTER: Okay. 
22 THE COURT: And sometimes those cases get continued, 
23 you understand. And you may not be notified until you show 
24 up at the courthouse and find out your case isn't going to go 
25 to trial. 
144 
 1 VENIREPERSON WAECHTER: Sure. 
2 THE COURT: That happens occasionally. Maybe it 
3 doesn't happen in Lincoln County. It happens in Boone County 
4 from time to time. 
5 VENIREPERSON WAECHTER: But I am sorry I don't have 
6 more information on it. 
7 THE COURT: All right. We'll see if we can find out 
8 that and get back to you. 
9 Anyone else on that front row that has a conflict? 
10 Yes, ma'am. You are Juror Number 12. 
11 VENIREPERSON SCHUPMANN: My mother-in-law is 82 
12 years old and has just been diagnosed with cancer. 
13 THE COURT: Okay. Would you just speak -- maybe if 
14 you stood up, since we are farther away than -- your 
15 mother-in-law is in her 80s and has cancer? 
16 VENIREPERSON SCHUPMANN: Right. And I've been 
17 taking her back and forth to the hospital for treatments and 
18 stuff. And I just really don't want to be away from her, 
19 just in case. 
20 THE COURT: Is her situation at this point critical? 
21 VENIREPERSON SCHUPMANN: Yes. She's got both 
22 terminal cancer, plus she's got a heart condition. 
23 THE COURT: Is there anyone else in the family that 
24 might be able to step in for you? 
25 VENIREPERSON SCHUPMANN: Well, they could, but I'm 
145 
 1 just saying, if something was to happen to her, I want to be 
2 there for her. 
3 THE COURT: Okay. I understand that very well. 
4 Thank you so much. 
5 MR. CRANE: Judge, I think Number 11 might have had 
6 something. 
7 THE COURT: All right. 
8 I did not see your hand, Number 11. 
9 VENIREPERSON BRININGER: Yeah. I got kids -- 
10 THE COURT: Would you stand up just a bit, because I 
11 -- some people have louder voices than others, and it's -- 
12 I'm sorry we don't have a microphone for you. 
13 VENIREPERSON BRININGER: If we got to stay down 
14 there, I don't want to leave my kids overnight. 
15 THE COURT: Okay. How old are your children? 
16 VENIREPERSON BRININGER: The youngest one's 10 
17 and -- 
18 THE COURT: I'm sorry? 
19 VENIREPERSON BRININGER: The youngest one is 10 and 
20 one is 15. 
21 THE COURT: All right. So your children are 10 and 
22 15, and they're not supposed to be home alone? 
23 VENIREPERSON BRININGER: Not overnight. I mean, my 
24 husband works nights. 
25 THE COURT: All right. 
146 
 1 VENIREPERSON BRININGER: I don't allow -- no, I 
2 don't want them -- 
3 THE COURT: So tell me again, your family situation 
4 is is that dad works evenings or nights and you're home with 
5 the kids overnight and you would not feel comfortable leaving 
6 a 15- and a 10-year-old by themselves. 
7 VENIREPERSON BRININGER: Right. 
8 THE COURT: Okay. I will certainly consider that. 
9 Thank you. 
10 VENIREPERSON BRININGER: Uh-huh. 
11 THE COURT: Anyone else on the front row? 
12 Yes, ma'am. You are -- are you Juror Number -- 
13 VENIREPERSON PUND: Juror Number 10. 
14 THE COURT: All right. Yes, ma'am. 
15 VENIREPERSON PUND: I also have two small children, 
16 five and three. And to stay overnight for a week would be 
17 kind of hard. 
18 THE COURT: Is there anyone else -- well, is your -- 
19 is the father at home -- 
20 VENIREPERSON PUND: Yes. 
21 THE COURT: -- overnight? 
22 VENIREPERSON PUND: Uh-huh. 
23 THE COURT: Okay. And during the day do you 
24 normally work? 
25 VENIREPERSON PUND: Yes. 
147 
 1 THE COURT: And so you have day care provided for 
2 the children during the day? 
3 VENIREPERSON PUND: I do, but not -- he usually 
4 leaves earlier, before I take the children. It just would be 
5 a little difficult. 
6 THE COURT: Is there someone that could either take 
7 them to day care when you would normally do that, like a 
8 neighbor or someone else that uses the day care? 
9 VENIREPERSON PUND: Yeah. 
10 THE COURT: Is that a yes? 
11 VENIREPERSON PUND: Yes. Uh-huh. 
12 THE COURT: Okay. If maybe during a recess, if you 
13 have access to a phone, if you would be kind enough just to 
14 check to make sure that that would be a possibility. 
15 VENIREPERSON PUND: (Nodding head up and down.) 
16 THE COURT: Thank you. 
17 Anyone else on that row? 
18 Yes, sir. Are you Number 2? 
19 VENIREPERSON ROBINSON: Yes. 
20 THE COURT: Yes, sir. What is your conflict? 
21 VENIREPERSON ROBINSON: I personally don't have the 
22 finances to be able to be off work for a week. My daughter 
23 was on welfare. She had welfare taken away from her. And I 
24 now have to help her also, her and her baby. And I don't 
25 feel I can afford to miss any more work. 
148 
 1 THE COURT: Are you self-employed, sir? 
2 VENIREPERSON ROBINSON: No. 
3 THE COURT: And does your employer have other people 
4 that can fill in for you when you're gone? 
5 VENIREPERSON ROBINSON: No. I just went to work 
6 for -- they started a brand new company. And my crew's off 
7 today because I am not working. And I have no other way to 
8 take care of them. 
9 THE COURT: Are you telling me that if you're not 
10 working, you don't get paid. 
11 VENIREPERSON ROBINSON: Exactly. 
12 THE COURT: In other words, you don't have a 
13 straight salary, but you're paid by the day. 
14 VENIREPERSON ROBINSON: By hourly. 
15 THE COURT: Okay. All right. I will consider that, 
16 sir. 
17 Anyone else? Let's do the second row then. Anyone 
18 on the second row who would find that to be a conflict? 
19 And that's Number 15, are you? 
20 VENIREPERSON DECLUE: Yes, Your Honor. 
21 THE COURT: Okay. And what is your conflict? 
22 VENIREPERSON DECLUE: My wife's travelling out of 
23 town Wednesday to Indiana to be with my grandmother, with my 
24 sister. My 82-year-old grandmother. And I need to be at the 
25 house for my 15-year-old son. I wouldn't want to leave him 
149 
 1 overnight. 
2 THE COURT: Are there other relatives that he could 
3 stay with? 
4 VENIREPERSON DECLUE: No. 
5 THE COURT: I'm sorry? 
6 VENIREPERSON DECLUE: No, ma'am. 
7 THE COURT: Do you work nights? 
8 VENIREPERSON DECLUE: No. 
9 THE COURT: And normally when he comes home -- I 
10 assume he's in school? 
11 VENIREPERSON DECLUE: Yes, ma'am. 
12 THE COURT: When he comes home from school in the 
13 afternoon, is he there by himself for a period of time -- 
14 VENIREPERSON DECLUE: No. My wife doesn't work. 
15 THE COURT: Okay. Does he have any kind of 
16 disability or problems that need attention? 
17 VENIREPERSON DECLUE: Yes. He's ADHD and bipolar. 
18 THE COURT: All right. And I don't -- again, I 
19 don't mean to embarrass you, but -- 
20 VENIREPERSON DECLUE: No, it's fine. 
21 THE COURT: -- some circumstances are different than 
22 others. There's some 15-year-olds that are mature and able 
23 to be on their own for a few hours after school and some that 
24 aren't. Thank you, sir. 
25 Anyone else on that row there? 
150 
 1 Number 16. 
2 VENIREPERSON CAVINESS: Mine is just the weekend. 
3 We are leaving as soon as I leave here today and will not be 
4 home until Monday. We have a prior commitment in 
5 Springfield. 
6 THE COURT: And you're planning on leaving today, 
7 are you? 
8 VENIREPERSON CAVINESS: Yes, ma'am. 
9 THE COURT: And you're going out of town for some -- 
10 VENIREPERSON CAVINESS: Yes, ma'am. 
11 THE COURT: -- planned trip? 
12 VENIREPERSON CAVINESS: Yes. My husband and I set 
13 on a committee for a sale. The sale's on Sunday at 1:00. 
14 THE COURT: Are you -- do you have plane 
15 reservations? 
16 VENIREPERSON CAVINESS: No. We're driving. 
17 THE COURT: And where will you be going? 
18 VENIREPERSON CAVINESS: Springfield, Missouri. 
19 THE COURT: This is relating to your work, is it? 
20 VENIREPERSON CAVINESS: Yes. We have a livestock 
21 business. Personal. Family business. 
22 THE COURT: All right. Thank you. 
23 Anyone else on this part of the second row? Over 
24 here. 
25 Are you Number 19? 
151 
 1 VENIREPERSON KAIMANN: Yes. 
2 THE COURT: All right. And what is your conflict? 
3 VENIREPERSON KAIMANN: I got two small children at 
4 home, five and three, and my wife works. It would be 
5 difficult to both be gone all week long. 
6 THE COURT: Does she work evenings? 
7 VENIREPERSON KAIMANN: No. 
8 THE COURT: Works during normal daytime hours? 
9 VENIREPERSON KAIMANN: Yes. 
10 THE COURT: I assume, with such young children, you 
11 have some kind of day care during the day? 
12 VENIREPERSON KAIMANN: Yes. I pick them up early. 
13 She works until 5:00 every day. And I pick them up before 
14 then. 
15 THE COURT: What time of the day do you drop them 
16 off? 
17 VENIREPERSON KAIMANN: My wife drops them off at 
18 7:30. 
19 THE COURT: All right. Thank you, sir. 
20 Anyone else on that row? 
21 Yes, sir. And you -- are you Number 22? 
22 VENIREPERSON HARRIS: Number 22. 
23 THE COURT: Yes, sir. 
24 VENIREPERSON HARRIS: If the trial and the 
25 deliberations last longer than a week, I have a court 
152 
 1 appearance on October 24th in the City of Troy on a 
2 misdemeanor charge. 
3 THE COURT: All right, sir. I'm hoping that won't 
4 happen, because I have a conflict on that day myself, but -- 
5 VENIREPERSON HARRIS: And also -- 
6 THE COURT: -- sometimes we overlook those. 
7 VENIREPERSON HARRIS: -- I'm self-employed, and I 
8 really can't afford to take off a week's work. 
9 THE COURT: I assume if you're not working, sir, 
10 then you don't -- 
11 VENIREPERSON HARRIS: No. 
12 THE COURT: -- get paid. 
13 VENIREPERSON HARRIS: Nothing. 
14 THE COURT: All right. Thank you. 
15 Anyone else on that row? 
16 Are you Number 23? 
17 VENIREPERSON GIBBS: Yes. 
18 THE COURT: And what is your conflict, sir? 
19 VENIREPERSON GIBBS: I have a state-required CNA 
20 class on Thursday. 
21 THE COURT: And for those that don't know what a CNA 
22 is, is that the certified nursing assistant? 
23 VENIREPERSON GIBBS: Correct. 
24 THE COURT: Is that correct? And that pertains to 
25 your job? 
153 
 1 VENIREPERSON GIBBS: Yes. 
2 THE COURT: And if you don't get certified, you're 
3 not able to continue in your job? 
4 VENIREPERSON GIBBS: Yeah. I think I have 120 days 
5 from the point that I began work, so. 
6 THE COURT: Okay. And will -- will -- if you have 
7 to take it the next time it's given, will that be past the 
8 120 days? 
9 VENIREPERSON GIBBS: Well, I'm not sure -- I'm not 
10 sure if it will put me over or not. 
11 THE COURT: Okay. 
12 VENIREPERSON GIBBS: I don't know how many days I 
13 can miss. I think it's maybe two days that I can miss. 
14 THE COURT: When is this test to be given? 
15 VENIREPERSON GIBBS: Thursday. 
16 THE COURT: Thursday of next week? 
17 VENIREPERSON GIBBS: Yes. 
18 THE COURT: Okay. Thank you. 
19 Anyone else on that row? 
20 Yes. Mr. Number 13? You are Number 13? 
21 VENIREPERSON STONEBARGER: Yes. 
22 THE COURT: Yes. And what is your -- 
23 VENIREPERSON STONEBARGER: I also can't afford to 
24 take off work for a week. 
25 THE COURT: Are you self-employed? 
154 
 1 VENIREPERSON STONEBARGER: No, I'm not. 
2 THE COURT: Are you a salaried or an hourly 
3 employee? 
4 VENIREPERSON STONEBARGER: Hourly. 
5 THE COURT: I will consider that, sir. 
6 Anyone else? Let's go to the third row. Anyone on 
7 that row? The third row back on this side. My left, your 
8 right. 
9 Yes. Are you Number 29? 
10 VENIREPERSON WILLIAM THOMAS: Yes. 
11 THE COURT: And what is your conflict, sir? 
12 VENIREPERSON WILLIAM THOMAS: I have an 8-year-old 
13 and a 9-year-old at home. I'm responsible for getting them 
14 to school in the morning when my wife goes to school. 
15 THE COURT: Okay. I'm -- you're going to have to 
16 speak up just a bit. 
17 VENIREPERSON WILLIAM THOMAS: My wife goes to school 
18 in the morning. I get my kids to school. She goes -- she is 
19 a practicum student. And she is required to be at her 
20 practicum at 6:30 in the morning. 
21 THE COURT: So you're the one that's there to take 
22 them on -- you say they are -- there's an 8- and 9-year-old? 
23 VENIREPERSON WILLIAM THOMAS: Yes. 
24 THE COURT: And you get them to school. 
25 VENIREPERSON WILLIAM THOMAS: Yes, I do. 
155 
 1 THE COURT: Is there anyone that could -- they could 
2 carpool with for this week to get to school? 
3 VENIREPERSON WILLIAM THOMAS: Not that early. 
4 THE COURT: Okay. Thank you, sir. 
5 Anyone else on that row? Let me go across the aisle 
6 to the third row. Is there anyone that has a conflict on 
7 that row? 
8 And are you Juror Number -- 
9 VENIREPERSON BLACK: 31. 
10 THE COURT: -- 30? 
11 VENIREPERSON BLACK: 31, ma'am. 
12 THE COURT: 31. Yes, sir. 
13 VENIREPERSON BLACK: I have a 3-month-old and a 
14 9-year-old at home that I have to baby-sit Wednesday, 
15 Thursday, and Friday. 
16 THE COURT: What time? 
17 VENIREPERSON BLACK: From the morning 'til the 
18 evening. 
19 THE COURT: And is there anyone else either in the 
20 family or otherwise that could sit for these children? 
21 VENIREPERSON BLACK: No. Family works, ma'am, and I 
22 can't afford a baby-sitter for them three days. 
23 THE COURT: I assume that the 9-year-old goes to 
24 school? 
25 VENIREPERSON BLACK: Yes. 
156 
 1 THE COURT: But the 3-month-old is in need of care. 
2 VENIREPERSON BLACK: Yes. 
3 THE COURT: All right. Thank you. 
4 Anyone else on that row? 
5 I'm trying to see. Are you Number 33? 
6 VENIREPERSON McCULLOUGH: Yes. 
7 THE COURT: And would you stand, please, ma'am. 
8 VENIREPERSON McCULLOUGH: Yes. I can't really 
9 afford to take a whole week off work. And I'm not entirely 
10 positive that my employer pays for jury service. 
11 THE COURT: Are you a salaried employee? 
12 VENIREPERSON McCULLOUGH: Hourly. 
13 THE COURT: Hourly? Are you full time? 
14 VENIREPERSON McCULLOUGH: (Nodding head up and 
15 down.) 
16 THE COURT: That's a yes? 
17 VENIREPERSON McCULLOUGH: Yes. 
18 THE COURT: Okay. I will certainly consider that. 
19 VENIREPERSON McCULLOUGH: Thank you. 
20 THE COURT: Anyone else on that row? 
21 Yes, sir. And you are Number 35? 
22 VENIREPERSON MOORE: 35. 
23 THE COURT: Yes, sir. 
24 VENIREPERSON MOORE: I'm very reluctant to leave my 
25 wife alone for a week's time. It's just the two of us. 
157 
 1 THE COURT: Does she suffer from any kind of illness 
2 at this time? 
3 VENIREPERSON MOORE: Not other than knee problems 
4 and such. 
5 THE COURT: Is she able to get around physically? 
6 In other words, do you have to -- 
7 VENIREPERSON MOORE: Yes, she is. 
8 THE COURT: She is. 
9 VENIREPERSON MOORE: Yes, she is. 
10 THE COURT: But you don't want to be apart from her 
11 for that long. 
12 VENIREPERSON MOORE: That's true. 
13 THE COURT: She's a lucky lady, isn't she? All 
14 right. I will certainly take that into consideration, sir. 
15 VENIREPERSON MOORE: Thank you. 
16 THE COURT: Anyone else on that row? Let's go to 
17 the fourth row. 
18 I can't see if you're on the end. Is this 37? 
19 VENIREPERSON BETTS: Yes, ma'am. 
20 THE COURT: And what is your conflict, ma'am? 
21 VENIREPERSON BETTS: I have a boy in middle school. 
22 He's 14. And besides that, my husband travels all over 
23 Missouri state during the week, so. 
24 THE COURT: Is he travelling today as we speak? 
25 VENIREPERSON BETTS: Yes, he is. 
158 
 1 THE COURT: And what -- does he generally come home 
2 for the evening? 
3 VENIREPERSON BETTS: It depends where they send him. 
4 Usually he's gone -- 
5 THE COURT: Do you know what his schedule is next 
6 week? 
7 VENIREPERSON BETTS: I think it's to be down in 
8 Mt. Vernon, Illinois. 
9 THE COURT: And he would not be coming home 
10 overnight. 
11 VENIREPERSON BETTS: No. 
12 THE COURT: All right. Is there any family member 
13 that you have that could -- that your son could stay with 
14 while you're gone? 
15 VENIREPERSON BETTS: No, not really. 
16 THE COURT: Pardon? 
17 VENIREPERSON BETTS: No, ma'am. 
18 THE COURT: All right. Thank you. You may sit 
19 down. 
20 Anyone else on that row? 
21 Yes, sir. And if you would tell me your number, 
22 sir. 
23 VENIREPERSON SKIRVIN: 41. 
24 THE COURT: Yes, sir. 
25 VENIREPERSON SKIRVIN: Single-income family. 
159 
 1 THE COURT: Are you self-employed? 
2 VENIREPERSON SKIRVIN: No. I work for Marquitz 
3 Motors. 
4 THE COURT: I'm sorry? 
5 VENIREPERSON SKIRVIN: I work over here at a 
6 dealership. 
7 THE COURT: And you're a salaried employee? 
8 VENIREPERSON SKIRVIN: Hourly. 
9 THE COURT: All right. You're full time, though. 
10 VENIREPERSON SKIRVIN: Yes. 
11 THE COURT: Okay. Thank you. 
12 Anyone else over here on the fourth row? On the 
13 fourth row, on the -- on your left, my right. 
14 All right. If you'd stand, ma'am. And are you 
15 Number 43? 
16 VENIREPERSON BENNETT: Yes. 
17 THE COURT: And please stand up so we can hear you. 
18 VENIREPERSON BENNETT: I have a granddaughter that 
19 her dad and her live with me. And I am responsible taking 
20 her to school and home. And everybody works. 
21 THE COURT: Including you? 
22 VENIREPERSON BENNETT: No. I stay at home. But I 
23 get her in the morning to the school bus, and after school I 
24 pick her up. 
25 THE COURT: And her dad is your son or -- 
160 
 1 VENIREPERSON BENNETT: Right. 
2 THE COURT: All right. 
3 VENIREPERSON BENNETT: And they all leave early -- 
4 early, early in the mornings. 
5 THE COURT: What are we talking about, "early"? 
6 VENIREPERSON BENNETT: Say about 6:00. 
7 THE COURT: Pardon? 
8 VENIREPERSON BENNETT: 6:00. 
9 THE COURT: All right. And the school bus comes? 
10 VENIREPERSON BENNETT: The bus is usually there at 
11 quarter after 7. 
12 THE COURT: Is there anyone else in the neighborhood 
13 whose children -- 
14 VENIREPERSON BENNETT: No. 
15 THE COURT: -- go -- 
16 VENIREPERSON BENNETT: Not that I would be, you 
17 know, letting her with. 
18 THE COURT: All right. Thank you. 
19 Anyone else on that row? 
20 Yes, ma'am. Are you Number 45? 
21 VENIREPERSON SCHISLER: Yes, 45. 
22 THE COURT: Yes. 
23 VENIREPERSON SCHISLER: I just have a 16-year-old 
24 daughter and my husband works nights. 
25 THE COURT: And you don't feel comfortable leaving 
161 
 1 her home alone at night? 
2 VENIREPERSON SCHISLER: Oh, no. No. 
3 THE COURT: Anyone else that she could stay with? 
4 VENIREPERSON SCHISLER: Yes. She could stay with 
5 friends. 
6 THE COURT: Could -- and during a recess, would you 
7 be able to call and see if that arrangement could be made? 
8 VENIREPERSON SCHISLER: Yes. 
9 THE COURT: All right. Thank you. 
10 Anyone else on that fourth row? 
11 Yes. Are you Number 48? 
12 VENIREPERSON MILLER: Yes. 
13 THE COURT: And what is your conflict? 
14 VENIREPERSON MILLER: I'm self-employed, and if I 
15 don't work, I don't get paid. I really can't afford to be 
16 off for a week like that. 
17 THE COURT: Are you married at this time? 
18 VENIREPERSON MILLER: No. 
19 THE COURT: I will consider that, sir. 
20 Anyone else on the fourth row? Finally, the fifth 
21 row, on this side, in the back. Anyone that has a conflict? 
22 You may stand up. Is it Number 50? 
23 VENIREPERSON STRAUGHTER: Right. 
24 THE COURT: And what is your conflict, sir? 
25 VENIREPERSON STRAUGHTER: I have a disabled wife, 
162 
 1 and we have just received guardianship of our two 
2 grandchildren. They both have behavioral problems. And my 
3 services at home are very much needed. And I couldn't afford 
4 to be off for -- or gone for that long. 
5 THE COURT: You normally work. 
6 VENIREPERSON STRAUGHTER: No. I'm retired. 
7 THE COURT: You're retired. I'm sorry. And I don't 
8 want to go into great details about your wife's disability, 
9 but do you need to help her around physically at the house? 
10 VENIREPERSON STRAUGHTER: I do the cooking, I do the 
11 washing, I do the ironing, I clean the house. 
12 THE COURT: All right. I will certainly consider 
13 that, sir. 
14 Did I see another hand go up? Is that Number 51? 
15 VENIREPERSON GAINES: Yes, it is. I'm a national 
16 trainer, and I've got a training session set up for Monday. 
17 We're going to train 80 people across the country. 
18 THE COURT: And where do you have to be? 
19 VENIREPERSON GAINES: I actually do it from my 
20 office, which is here in town. It's a Web-X and conference 
21 call. 
22 THE COURT: All right. And I assume that would be 
23 something that you would find difficult to reschedule, or 
24 not? 
25 VENIREPERSON GAINES: I can't. We actually just 
163 
 1 changed over a program and we go live with it Monday. So 
2 I -- it can't be changed. 
3 THE COURT: All right. 
4 VENIREPERSON GAINES: If you can change the court, I 
5 could be there next week. 
6 THE COURT: Unfortunately there are lots of other 
7 people that depend on next week's date. Thank you, sir. 
8 Anyone else on that row? 
9 Number 52. 
10 VENIREPERSON FIELDS: I'm scheduled to work 
11 midnights a couple nights next week. 
12 THE COURT: Your shift changes from time to time, is 
13 what you're -- 
14 VENIREPERSON FIELDS: Yeah. I normally work 7 to 3, 
15 but sometimes they schedule me for 11 to 7. 
16 THE COURT: And what happens if you're sick or on 
17 vacation? 
18 VENIREPERSON FIELDS: Well, then they get somebody 
19 else to switch around. 
20 THE COURT: All right. And you're a salaried 
21 employee or hourly? 
22 VENIREPERSON FIELDS: Hourly. 
23 THE COURT: But full time? 
24 VENIREPERSON FIELDS: Yes. 
25 THE COURT: All right. Thank you. 
164 
 1 Anyone else? Now's the time to be heard. 
2 Yes, sir. You're Juror Number 1? 
3 VENIREPERSON BROWN: Yes. I just thought, on Monday 
4 morning I have -- I am a businessman, and I have a 
5 teleconference scheduled for two hours, from 10:00 'til 12:00 
6 on Monday. I also have an evening appointment next Wednesday 
7 evening. 
8 THE COURT: As to the teleconference, is this 
9 something that can be rescheduled? 
10 VENIREPERSON BROWN: I do not know. 
11 THE COURT: Are you the presenter, or you're just 
12 going to be listening? 
13 VENIREPERSON BROWN: I'm going to be listening. 
14 THE COURT: All right. 
15 VENIREPERSON BROWN: It's a class that I have to 
16 attend, but I don't know if they'll offer it again or not. 
17 THE COURT: All right. Thank you. 
18 Anyone else? 
19 Yes, sir. You're Juror Number 7. 
20 VENIREPERSON WAECHTER: Yeah. I thought about it. 
21 We do have a business. As Mr. Richards, don't want to -- 
22 hope I'm not out of line. We're extremely busy. I just 
23 don't know -- the City of Troy's got sewer mains going in, 
24 and we furnish material. We do have employees. I could do 
25 it. It's going to be hard. 
165 
 1 THE COURT: All right. 
2 VENIREPERSON WAECHTER: It's going to cause some 
3 problems, but -- I'd be willing to serve. It's not something 
4 I cannot do. But it is going to put a bind on us. 
5 THE COURT: All right. 
6 VENIREPERSON WAECHTER: It really is. 
7 THE COURT: Well, I appreciate that, sir. And I 
8 can't imagine being away from home for a week would be easy 
9 for anyone. 
10 VENIREPERSON WAECHTER: Well, it's just the City of 
11 Troy is doing an awful lot of expansion, and they really 
12 depend on us for -- the city, and also the contractors, on -- 
13 THE COURT: Well, we will consider that, sir. 
14 VENIREPERSON WAECHTER: -- all these jobs. Thank 
15 you. 
16 THE COURT: Ladies and gentlemen, I need to know if 
17 you have in any way heard anything about this case in the 
18 media. The state has alleged that on or about the 1st of 
19 November in the year 2001, in Boone County, Missouri, that 
20 this defendant caused the death of one Kent Heitholt by 
21 strangling him. And need to know, with that little bit of 
22 information -- and I will tell you that this is -- the facts 
23 of this case would be that this occurred near the Columbia 
24 Daily Tribune business, which is a newspaper in Columbia. 
25 With that information, can you recall having heard 
166 
 1 on television, on radio, or read anything about this in any 
2 newspaper, whether it's the local paper or whether you happen 
3 to take the Post Dispatch or any other form of media. Has 
4 anyone heard about the case? 
5 Yes, ma'am. And you are Juror Number 12? 
6 VENIREPERSON SCHUPMANN: Yes. 
7 THE COURT: Okay. Without telling me what you heard 
8 about the case or read about the case, and I'm mindful of 
9 your mother-in-law's condition, but I -- this is another 
10 question entirely. Would you be able to put whatever you've 
11 heard about or read about the case in the media aside and, if 
12 selected, make a decision based only on the evidence that you 
13 would see and hear in the courtroom? 
14 VENIREPERSON SCHUPMANN: Yes. 
15 THE COURT: Okay. Thank you very much. 
16 Anyone else? I don't see any hands. 
17 Ladies and gentlemen, as -- a number of you have 
18 made checkmarks on your questionnaire, and we appreciate your 
19 doing those in advance, relating to several issues. And the 
20 attorneys and I have had the opportunity of looking at that. 
21 I notice that some of them were done in July and some in 
22 August, and here we are mid-October. I need to know, since 
23 that time, or even on that questionnaire, whether any of you 
24 have been convicted of a felony offense. 
25 And I know some of you checked that little box that 
167 
 1 said you might have been convicted of offenses other than -- 
2 other than a traffic offense. And of course there are a 
3 number of misdemeanor offenses that are not felony offenses. 
4 And so you needn't answer on misdemeanor offenses, unless it 
5 was a misdemeanor offense involving moral turpitude. That 
6 means whether you tried to bribe a judge or a juror or a 
7 witness or didn't pay your income tax. But I'm talking about 
8 basically felony convictions. Anyone that has a felony 
9 conviction that perhaps that happened after you filled out 
10 the form. I don't see anything -- I don't see any hands, so 
11 I assume that you -- that has not changed. 
12 Anyone on this panel who has problems in reading and 
13 writing in English? And I don't see hands now. 
14 Anyone on the panel who -- and I don't know how to 
15 ask this. Maybe I should ask it this way. Raise your left 
16 hands, please. 
17 (Venirepersons complying.) 
18 THE COURT: You can leave them up. 
19 All right. Put them down. 
20 The point of the question is: Whether there's 
21 anyone that has hearing difficulties, so that you're having 
22 difficulty hearing me. 
23 Yes, sir. And you're -- and you are Juror Number 8? 
24 VENIREPERSON ORR: Yes. 
25 THE COURT: Juror Number 8, understanding that we're 
168 
 1 quite a distance from each other -- and I can tell you that 
2 in Boone County, in the courthouse, the witness box might 
3 be -- well, like this over here. And the jury box is quite 
4 close to it. We also have amplification devices that you can 
5 wear that amplifies the sound in the courtroom for you. Do 
6 you believe that that would allow you -- and I know you 
7 haven't tried it on. And I'm not sure whether they have 
8 those hearings devices here or not. The Supreme Court has 
9 given them to us, and I think to many courts. Do you think 
10 you would have trouble hearing? 
11 VENIREPERSON ORR: I really can't say. 
12 THE COURT: I know it is a hard question. Do you 
13 wear any kind of hearing aid? 
14 VENIREPERSON ORR: No, ma'am. 
15 THE COURT: Do you have one side that's better than 
16 the other? One ear that hears better than the other? 
17 VENIREPERSON ORR: All depends on how I turn my 
18 head. 
19 THE COURT: Okay. So you probably do hear better 
20 out of one ear than the other? 
21 VENIREPERSON ORR: Most likely. 
22 THE COURT: If you were selected as a juror, and you 
23 couldn't hear something, would it embarrass you to raise your 
24 hand or put your hand on your ear so we would tell the 
25 witness to speak up or tell the lawyer to speak up? There's 
169 
 1 one lawyer here I know who speaks loud enough that you'd 
2 probably hear without any problem. And I'm not going to say 
3 who that is. You'll have to guess. But anyway, if you had 
4 problems hearing -- we obviously would want you to hear all 
5 the evidence in the case before reaching a decision in the 
6 case. Would it embarrass you or bother you to let us know 
7 that you couldn't hear? 
8 VENIREPERSON ORR: No. 
9 THE COURT: Would you be willing to try one of these 
10 assisted hearing devices, if we can find one to provide for 
11 you? 
12 VENIREPERSON ORR: I guess. 
13 THE COURT: It's really -- have you ever -- well, 
14 let me ask you this way. Have you used an iPod? You know 
15 what those are. They're little ear phones that a lot of 
16 people, not only kids, but older people wear, that plays 
17 music and so forth. It's probably like that. It has a 
18 little -- has a little device that's sort of a square-looking 
19 little device there, that is on the chest, and it makes it 
20 louder to hear with. So, I need to ask if you would consider 
21 wearing something like that, if we can find one -- I don't 
22 know if they have one here, but if we have one, maybe we 
23 could hunt it up and see if he's able to hear a little 
24 better. Would you be willing to try that? 
25 VENIREPERSON ORR: I guess. 
170 
 1 THE COURT: Okay. Thank you. 
2 Anyone else that knows they have a hearing problem? 
3 Okay. 
4 Anyone that came to court today, even though you 
5 felt sick, but you know that the sheriff comes after people 
6 if they don't come to court? And there may be one or two 
7 that -- anyone -- I see no hands. 
8 Anyone who has a sick family member who has not 
9 already disclosed that to me? About whom you might be 
10 concerned or worried here today, but you came anyway because 
11 that was your civic duty to do that. Anyone that is in that 
12 situation? Other than Juror Number 12. 
13 Yes, sir. 
14 VENIREPERSON ORR: My mother. 
15 THE COURT: Your mother's ill? 
16 VENIREPERSON ORR: Has been for the last six years. 
17 THE COURT: Is she in some care facility? 
18 VENIREPERSON ORR: No. I take care of her at home. 
19 THE COURT: And are you her sole provider of care? 
20 VENIREPERSON ORR: Yes. 
21 THE COURT: Is she able to get on okay by herself if 
22 you were in Columbia hearing a case? 
23 VENIREPERSON ORR: Probably not. She's on 
24 disability and she's on breathing machines 24/7. 
25 THE COURT: All right. 
171 
 1 VENIREPERSON ORR: And she has doctors' appointments 
2 twice a week. Nobody in my family will take her because she 
3 don't get along with no one in my family. 
4 THE COURT: Well, she's lucky to have you, isn't 
5 she? 
6 VENIREPERSON ORR: That's because I live with her. 
7 So I have to help her. But she helps me. 
8 THE COURT: I see. And so that really would be a 
9 hardship to leave her by herself. 
10 VENIREPERSON ORR: Right. 
11 THE COURT: All right. Anyone else who has a sick 
12 family member? And you may not be caring for them, but they 
13 may be in the hospital in real serious condition. I'm not 
14 talking about someone that has a cold or, you know, a sore 
15 throat or something like that, but something that's more 
16 serious. All right. I don't see anyone here who's raised 
17 their hand, other than Juror Number 8. 
18 Ladies and gentlemen, the state will have the 
19 opportunity to question you first. State gets to go forward 
20 first because the state has the burden of proof. After the 
21 state concludes its questioning, defense counsel will have 
22 the opportunity to ask you additional questions concerning 
23 your qualifications. 
24 We will take a recess around 10:30. It may be at 
25 10:35 or 10:40, but somewhere around that time. 
172 
 1 So we will proceed then with the questioning by the 
2 state. Mr. Crane. 
3 MR. CRANE: Please the Court? 
4 THE COURT: Yes. 
5 MR. CRANE: Counsel. 
6 - - - 
7 VOIR DIRE EXAMINATION 
8 BY MR. CRANE: 
9 As the Judge told you, my name's Kevin Crane. I'm 
10 the prosecutor in Boone County, Missouri. This is my 
11 assistant prosecutor, Dan Knight. You all have already 
12 talked about John Richards. And over there to John's left is 
13 Ruby Marsden. And she's an investigator in my office. 
14 I want to express, on behalf of both of us, our 
15 appreciation for your service today. Realize that it's 
16 inconvenient for a lot of you to be here, but I'm sure you 
17 understand that participating in this is crucial to our 
18 justice system. 
19 The process we're going through right now is to pick 
20 12 people who will produce a fair and impartial decision as 
21 to whether or not the defendant is guilty in this case. 
22 By my questions to you, I sure don't mean to pry 
23 into your personal affairs or embarrass you. In the event -- 
24 and I don't think this is going to necessarily happen, but 
25 you never know. In the event there is something that you 
173 
 1 would rather not talk about out here in front of God and 
2 everybody, let us know, and at a break, when the rest of the 
3 panel's out, I'm sure the Judge will take that up with you. 
4 Okay? 
5 The -- I wanted to ask a couple follow-up questions. 
6 Mr. Orr, I stepped out for just a second. Did 
7 you -- you said you were having potential hearing problems? 
8 VENIREPERSON ORR: Yeah. 
9 MR. CRANE: Okay. Which lawyer do you think the 
10 Judge was referring to? You think they're going to get much 
11 louder than I am? They might. 
12 VENIREPERSON ORR: Unless you get in my ear and 
13 scream. 
14 MR. CRANE: Okay. Do you also have back problems? 
15 VENIREPERSON ORR: Yes, sir. 
16 MR. CRANE: Okay. And I imagine some of the rest of 
17 you all are starting to feel like you got back problems, 
18 sitting in those chairs. 
19 VENIREPERSON ORR: No, I got de -- my spinal cord is 
20 deteriorating. 
21 MR. CRANE: Okay. 
22 VENIREPERSON ORR: I'm under doctor's care. 
23 MR. CRANE: It looks like you're kind of 
24 uncomfortable right now. 
25 VENIREPERSON ORR: I can't sit very long and I can't 
174 
 1 stand very long. 
2 MR. CRANE: And you have hearing problems. 
3 VENIREPERSON ORR: Uh-huh. 
4 MR. CRANE: Okay. All right. Well, I mean, if you 
5 get to a point where you feel like you can't make it, I mean, 
6 let me know. Okay? 
7 VENIREPERSON ORR: The only thing I got to do right 
8 now is go to the bathroom. 
9 MR. CRANE: Okay. Well, I can't make that call. 
10 That's up to the Judge. 
11 THE COURT: Well, let me -- let me just tell you 
12 this. Not good to drink a lot of coffee when you come for 
13 jury service. But if there is an issue, ladies and 
14 gentlemen, where you feel that you can't wait a half an hour, 
15 to 10:30 -- I'm not going to let one at a time to go out. 
16 We'll break a little bit earlier than we normally would and 
17 let you go out a little earlier. Maybe we should just sort 
18 of take a roll call and see, is there any -- anyone that 
19 feels they need to use the rest room now? And I don't want 
20 to embarrass you, but I need to know, is there anyone that 
21 feels they can't wait until 10:30? 
22 (Show of hands.) 
23 VENIREPERSON ORR: I guess I can hold it. 
24 THE COURT: You don't know that there are several 
25 people behind you -- 
175 
 1 VENIREPERSON ORR: Well, I'm looking that way. 
2 THE COURT: Well, I don't usually break so soon, but 
3 I hate to put people at a discomfort. I'd just ask you not 
4 to load up on a lot of coffee if I take a break. 
5 And I'm at a disadvantage now, because one of my 
6 contact lenses popped out, and I need to read you an 
7 instruction before we take a break. So you'll bear with me. 
8 I've probably said this long -- many -- long enough times 
9 over 30 years that I probably have it memorized, but I'll try 
10 again. 
11 And I'm sorry to have to break so early, for our 
12 bailiff, but they're used to this kind of stuff -- 
13 BAILIFF BOEDEKER: Yes, ma'am. 
14 THE COURT: -- happening, so. 
15 Ladies and gentlemen, it is the Court's duty to 
16 instruct you now upon a matter about which you will be 
17 reminded at each recess or adjournment of Court. Until the 
18 case is given to you to decide, you must not discuss any 
19 subject connected with the trial among yourselves, or form or 
20 express any opinion about it, and, until you are discharged 
21 as jurors, you must not talk with others about the case or 
22 permit them to discuss it with you or in your hearing, or 
23 read, view, or listen to any newspaper, radio, or television 
24 report of the trial. 
25 The bailiff and other officers of the Court are not 
176 
 1 permitted to talk to you about any subject connected with the 
2 trial, and you are not permitted to talk to them about it. 
3 The attorneys representing the state and the 
4 defendant are under a duty not to do anything that may even 
5 seem improper. Therefore, at recesses and adjournments they 
6 will avoid saying anything to the jury except, perhaps, 
7 something like "Good morning" or "Good afternoon." In doing 
8 that they do not mean to be unfriendly, but are simply doing 
9 their best to avoid even an appearance, that might be 
10 misunderstood, that they or you are doing anything improper. 
11 The same applies to witnesses and to the defendant. 
12 They have been or will be instructed to avoid all contact 
13 with the jury, even to talk about matters wholly unrelated to 
14 the case. 
15 If our bailiff will let us know when the jurors have 
16 had an opportunity to use the rest rooms and so forth, we 
17 will reconvene then. I can't tell you that it will be 10 or 
18 15 minutes. It seems like it's a large group. It may take a 
19 while longer. 
20 The jury may be in recess at this time. 
21 - - - 
22 The following proceedings were held out of the presence 
23 of the jury: 
24 MR. CRANE: Can we approach, Judge? 
25 THE COURT: All right. Yes. What is it? 
177 
 1 MR. CRANE: We -- 
2 THE COURT: I think all the jurors -- yes. 
3 Yes, ma'am. 
4 CIRCUIT CLERK HOUSTON: I just have a note about the 
5 listening device. 
6 THE COURT: Okay. And what is that? 
7 CIRCUIT CLERK HOUSTON: The information that I got 
8 from the Judge's secretary is that it is not in the case, and 
9 we had trouble with the lights interfering, and our IT person 
10 was checking on it. 
11 THE COURT: Okay. 
12 CIRCUIT CLERK HOUSTON: So I assume he has it. 
13 THE COURT: Okay. 
14 MR. CRANE: Judge, we're okay with letting Mr. Orr 
15 go now. 
16 THE COURT: Okay. All right. Well, since he seems 
17 to be in some degree of pain, we might do that. But thank 
18 you for checking. 
19 All right. 
20 CIRCUIT CLERK HOUSTON: You're welcome. 
21 THE COURT: Mr. Crane? 
22 MR. CRANE: Yes, ma'am. 
23 THE COURT: Was that the only issue that you -- 
24 MR. CRANE: Unless Mr. Rogers had something -- 
25 someone else. 
178 
 1 MR. ROGERS: I had one thing. And I don't know if 
2 you noticed this or not. I think Juror Number 5, Mr. Freese, 
3 didn't raise his left hand. And didn't look like he heard a 
4 word we were saying. 
5 THE COURT: All right. Well, I didn't notice that, 
6 but I certainly will ask either Mr. Crane or defense counsel, 
7 whoever's going to be doing that, to -- 
8 MR. CRANE: I did not notice that, but I don't 
9 dispute the observations. 
10 MR. ROGERS: We'll take it up. 
11 THE COURT: Okay. 
12 MR. ROGERS: Do we have a report back -- 
13 THE COURT: Let's see. Where is the prosecutor? 
14 MR. CRANE: Are you asking to let Mr. 5 -- Number 5 
15 go? 
16 THE COURT: No. Not -- 
17 MR. ROGERS: Not yet. We'll find out. 
18 THE COURT: Mr. Crane, do we know about Juror Number 
19 7, who is supposed to be a witness in a robbery case? Do we 
20 know when that case -- 
21 MR. CRANE: Mr. Richards is checking on that. 
22 THE COURT: Okay. And let's see. Was there 
23 anything else we need to -- 
24 MR. CRANE: You know, the thing is: I mean, you can 
25 explore that further. I -- I don't know that that would be a 
179 
 1 hardship on him if he can't make it. It may be a hardship on 
2 the state. But -- 
3 THE COURT: And the state may not want to continue 
4 the case. 
5 MR. CRANE: I don't -- yeah. That's why -- I think 
6 he's going to check. 
7 MR. ROGERS: May have a defendant filing for a 
8 speedy trial this morning. 
9 MR. CRANE: We can debate that issue later anyway. 
10 THE COURT: All right. Well, let's -- 
11 MR. CRANE: I think that's being checked on, though, 
12 Judge. 
13 THE COURT: All right. 
14 MR. CRANE: So we can release Number 8. 
15 (Venireperson Freese entered the courtroom.) 
16 MR. CRANE: Your Honor. 
17 THE COURT: Yes, sir. You need to -- what is it, 
18 sir? 
19 VENIREPERSON FREESE: I'm just coming back. 
20 THE COURT: You need to stay with the other jurors 
21 in the jury assembly room. If we could -- if you would go 
22 outside this door. And let's see if someone can open it for 
23 you. If you'd go right in. 
24 VENIREPERSON FREESE: Okay. 
25 (Venireperson Freese left the courtroom.) 
180 
 1 THE COURT: I think that may be the -- 
2 MR. CRANE: I don't disagree with observations of 
3 Juror Number 5. He just walked in. Everybody else is 
4 standing out there. 
5 THE COURT: He doesn't look like he knows where he 
6 is. 
7 MR. CRANE: He looks like he may be infirm, with all 
8 due respect to him. I'd ask that he be stricken now. 
9 MR. ROGERS: I'll concur in that, Your Honor. 
10 MR. CRANE: You all didn't see it. I was going 
11 through the door, and he just walked in. And everybody else 
12 is standing there. 
13 MR. ROGERS: Yeah, I thought he was being brought in 
14 to see -- 
15 MR. CRANE: None of them would have thought to come 
16 in here. 
17 THE COURT: He's Number 5. 
18 MR. ROGERS: Right. 
19 MR. CRANE: And also Mr. Rogers has indicated he did 
20 not raise his right hand and also he did not appear 
21 responsive. 
22 THE COURT: It was his left hand actually, that I 
23 asked them to raise. But whichever one, I know he didn't 
24 raise either. 
25 MR. CRANE: Oh, on the hearing thing? Okay. I 
181 
 1 missed that. 
2 THE COURT: I sort of do it the other way, just to 
3 sort of -- all right. So 5 and 8 you want to have excused; 
4 is that correct? 
5 MR. ROGERS: That's correct, Your Honor. 
6 THE COURT: And that's correct, Mr. Crane? 
7 MR. CRANE: (Nodding head up and down.) 
8 THE COURT: All right. 
9 (Recess taken.) 
10 - - - 
11 The following proceedings were held out of the presence 
12 of the jury: 
13 THE COURT: State ready to proceed? 
14 MR. CRANE: Ready. 
15 THE COURT: Defense ready to proceed? 
16 MR. ROGERS: As soon as Mr. -- yeah. He's coming 
17 through the door. Yes. 
18 THE COURT: All right. You can bring the jury back 
19 in. 
20 Do we know anything about -- 
21 MR. RICHARDS: Your Honor, it's not next week. I 
22 don't -- you know, he is a victim in a case, a burglary, but 
23 it's not set next week. So I think he's just confused. 
24 THE COURT: Okay. All right. You're sure it's not 
25 a preliminary hearing? 
182 
 1 MR. RICHARDS: It's -- we've already -- they're 
2 already past the prelim stage, so I don't think so. 
3 THE COURT: Okay. 
4 - - - 
5 The following proceedings were held in the presence of 
6 the jury: 
7 THE COURT: If you'll take your seats, ladies and 
8 gentlemen. If you remember where you were. If not, you'll 
9 look for the person that has a number above or below you. 
10 I just want to make sure we have everyone we started 
11 with. And I don't know if we -- if it's possible to count 
12 the number. Let's see. 
13 Is Juror 16 here? 
14 VENIREPERSON CAVINESS: Yes. 
15 THE COURT: Yes. Oh, you were right behind the 
16 gentleman in front of you, and I couldn't see you. All 
17 right. I just want to make sure that we're -- we didn't pick 
18 up someone extra from another case or -- Mr. Crane, I can't 
19 see through you. 
20 MR. CRANE: Sorry. 
21 THE COURT: If you'll just -- I'm just sort of 
22 checking to make sure that we have -- let's see. 
23 BAILIFF BOEDEKER: That should be it, ma'am. 
24 There's none on the floor. 
25 THE COURT: Okay. We have -- I think we do. Okay. 
183 
 1 Good enough. 
2 Mr. Crane, you may inquire. 
3 Yes, sir. 
4 VENIREPERSON HEADRICK: I really hate to slow this 
5 thing down, but I just realized, I have a court date Monday 
6 night. 
7 THE COURT: Okay. Would you stand up, sir, and tell 
8 us your number, or your name, whichever you feel comfort -- 
9 VENIREPERSON HEADRICK: John Headrick. 
10 THE COURT: All right. You're Number 34. 
11 VENIREPERSON HEADRICK: Yes, ma'am. 
12 THE COURT: And is your court date in a traffic 
13 court? 
14 VENIREPERSON HEADRICK: Yes, ma'am. 
15 THE COURT: And that's here in Troy? 
16 VENIREPERSON HEADRICK: No. That's in Ellisville, 
17 Missouri. 
18 THE COURT: Is it like a first appearance or is it 
19 for a trial? 
20 VENIREPERSON HEADRICK: No. It's a first 
21 appearance. I had got a ticket for not having -- 
22 THE COURT: Okay. You don't have to tell me why you 
23 have to -- 
24 VENIREPERSON HEADRICK: Well, I have to be there in 
25 order to prove my innocence, because, of course, I'm 
184 
 1 innocent. 
2 THE COURT: I assure you everyone is presumed 
3 innocent until they're proven guilty. That's the way our 
4 system works, sir. Thank you very much. 
5 Mr. Crane, you may now inquire. 
6 MR. CRANE: I -- I got in your way again, Judge. I 
7 apologize. 
8 - - - 
9 RESUMED VOIR DIRE EXAMINATION 
10 BY MR. CRANE: 
11 Okay. Is everybody squared away? 
12 I wanted to just follow up real quick on a couple of 
13 the hardship questions. 
14 Let's see. Miss Brininger? Number 11 down here? 
15 VENIREPERSON BRININGER: Yes. 
16 MR. CRANE: You sounded like you're really in a jam 
17 with the kids being home alone; correct? 
18 VENIREPERSON BRININGER: Right. 
19 MR. CRANE: And that situation's not something you 
20 can address. You don't really have any other options? 
21 VENIREPERSON BRININGER: Correct. 
22 MR. CRANE: Okay. 
23 Mr. Declue? 
24 VENIREPERSON DECLUE: Yes, sir. 
25 MR. CRANE: You've indicated that you've got kind of 
185 
 1 the same thing. Is -- your wife's leaving town, and then you 
2 got to be there to take care of the child who has some 
3 issues? 
4 VENIREPERSON DECLUE: Give him med -- make sure he 
5 gets his medications also. 
6 MR. CRANE: Okay. So if you were gone, he would be 
7 in a real jam there, without any options. 
8 VENIREPERSON DECLUE: Yes. 
9 MR. CRANE: And let's see. Miss Caviness? Number 
10 16; is that right? 
11 VENIREPERSON CAVINESS: Yes. 
12 MR. CRANE: You've got -- you're gone until Monday, 
13 after today; is that right? 
14 VENIREPERSON CAVINESS: That's correct. 
15 MR. CRANE: And that was something you were going 
16 with your husband? 
17 VENIREPERSON CAVINESS: Yes. 
18 MR. CRANE: On a -- is it business? 
19 VENIREPERSON CAVINESS: Yes. 
20 MR. CRANE: Okay. And you would not be back until 
21 Monday. That's a done deal; correct? 
22 VENIREPERSON CAVINESS: Correct. 
23 MR. CRANE: Okay. Let's see here. Mr. Harris. You 
24 indicated you got -- I want to make sure I had this straight. 
25 You got court the week after the trial? 
186 
 1 VENIREPERSON HARRIS: It's the 24th of October. 
2 MR. CRANE: Okay. You indicated you got problems 
3 with work. 
4 VENIREPERSON HARRIS: I'm self-employed. 
5 MR. CRANE: Yeah. Being off. No work, no pay type 
6 thing. But your trial is the next -- the week after next. 
7 VENIREPERSON HARRIS: Yes. 
8 MR. CRANE: Okay. Or case, was the week after next. 
9 Okay. 
10 Mr. Gibbs? That nursing thing's a big, big deal; 
11 right? That exam you got to take? 
12 VENIREPERSON GIBBS: Yes. 
13 MR. CRANE: That's next week, Thursday. 
14 VENIREPERSON GIBBS: Yeah. 
15 MR. CRANE: Okay. Doesn't look like we'd -- you'd 
16 be able to do that if you were on this jury, and that would 
17 present a major problem to your furthering your career; is 
18 that accurate? 
19 VENIREPERSON GIBBS: Yeah. 
20 MR. CRANE: Okay. Can't get out of it. It's 
21 Thursday. 
22 VENIREPERSON GIBBS: Yeah. 
23 MR. CRANE: There's no other options. 
24 VENIREPERSON GIBBS: Not that I know of. 
25 MR. CRANE: Okay. Thank you, Mr. Gibbs. 
187 
 1 Let me see here. Who else? I know I'm skipping 
2 some people. Let's see. 
3 Mr. Black? 
4 VENIREPERSON BLACK: Yes. 
5 MR. CRANE: Number 31 is your number; is that right? 
6 VENIREPERSON BLACK: Yes. 
7 MR. CRANE: Sounded like you had some significant 
8 child care problems. Got little kids. 
9 VENIREPERSON BLACK: Yeah. 
10 MR. CRANE: And you're the only one during periods 
11 of the day that takes care of them; is that right? 
12 VENIREPERSON BLACK: Yes. My wife works -- 
13 MR. CRANE: So as much as you'd like to be gone at 
14 times, you're unable to; is that correct? 
15 VENIREPERSON BLACK: Correct. 
16 MR. CRANE: Okay. No other options to take care of 
17 those little children? 
18 VENIREPERSON BLACK: No. 
19 MR. CRANE: Okay. 
20 Let's see here. Miss McCullough, I wanted to get 
21 straight what you said. Yours wasn't a kid problem, was it? 
22 VENIREPERSON McCULLOUGH: No. 
23 MR. CRANE: You just got work? 
24 VENIREPERSON McCULLOUGH: It's a money problem. 
25 MR. CRANE: Pardon me? 
188 
 1 VENIREPERSON McCULLOUGH: It's just a money problem. 
2 MR. CRANE: The no work, no pay situation? 
3 VENIREPERSON McCULLOUGH: Yeah. 
4 MR. CRANE: Okay. 
5 Let's see. And Miss Bennett. You indicated you got 
6 kid problems. And did you say you would -- you didn't think 
7 you could get any help? 
8 VENIREPERSON BENNETT: No, because there's nobody -- 
9 everybody works. And the ones that I would leave her with, 
10 they work too. In the neighborhood. I -- you know. 
11 MR. CRANE: Okay. I appreciate that, ma'am. 
12 And Mr., is it Straughter? Number 50. You sound 
13 like you're doing it all. You got the kids, cleaning, 
14 cooking. Whole nine yards. 
15 VENIREPERSON STRAUGHTER: Off to school at 6 in the 
16 morning, pick them up at the bus in the evening. 
17 MR. CRANE: And I'm not trying to get in any depth 
18 on this, but you indicated the kids kind of had some issues; 
19 it's -- 
20 VENIREPERSON STRAUGHTER: Right. 
21 MR. CRANE: -- difficult to be away from them for 
22 particular reasons; is that right? 
23 VENIREPERSON STRAUGHTER: Yeah. They would run my 
24 wife ragged if she kept them home by herself. 
25 MR. CRANE: So that would work an extreme hardship 
189 
 1 on you and your family to be gone. 
2 VENIREPERSON STRAUGHTER: Yes, it would. 
3 MR. CRANE: Correct? 
4 VENIREPERSON STRAUGHTER: That's correct. 
5 MR. CRANE: Okay. Thank you, sir. 
6 All right. Let me go over some basic concepts in 
7 the law with you, ladies and gentlemen. First of all, I want 
8 to talk to you about the presumption of innocence. 
9 Under the United States and the Missouri 
10 Constitutions, a criminal defendant is presumed to be 
11 innocent until 12 jurors, 12 of you, are convinced beyond a 
12 reasonable doubt that he's guilty. 
13 Is there anybody on the panel today who would not be 
14 able to give this defendant, Mr. Ferguson, the benefit of his 
15 presumption of innocence, the same as any other criminal 
16 defendant is entitled? Okay. I take it by your silence -- 
17 remember how we were doing this? If you don't raise your 
18 hand and let me know, I'm assuming that you can give the 
19 defendant in this case his presumption of innocence. As you 
20 sit there right now. 
21 Yes, ma'am. Miss Schupmann? 
22 VENIREPERSON SCHUPMANN: Yes. 
23 MR. CRANE: Yes, ma'am. 
24 VENIREPERSON SCHUPMANN: I've always had a big 
25 problem of judging people. 
190 
 1 MR. CRANE: Okay. 
2 VENIREPERSON SCHUPMANN: When my kids were growing 
3 up, my husband would do the judging. You know, decide who 
4 was lying to him and who wasn't. 
5 MR. CRANE: Well, let me -- I was going to ask a 
6 question along those lines later. Miss Schupmann, you've 
7 indicated that you have -- anticipate and feel like, even 
8 now, uncomfortable with the idea that you'd have to judge 
9 another human being. 
10 VENIREPERSON SCHUPMANN: Exactly. 
11 MR. CRANE: You don't want to be in that position. 
12 VENIREPERSON SCHUPMANN: No. 
13 MR. CRANE: And do you think that feeling that you 
14 have would cause you to be fair -- not able to be fair and 
15 impartial if you were selected as a juror in this case? 
16 VENIREPERSON SCHUPMANN: It could. 
17 MR. CRANE: Okay. 
18 Is there anybody else who feels like that they just 
19 could not sit in judgment of a fellow human being? 
20 Let's see. Don't let me -- Number 3, Mr. -- how do 
21 you pronounce that? 
22 VENIREPERSON PHILIPAK: Philipak. 
23 MR. CRANE: Yes, sir. 
24 VENIREPERSON PHILIPAK: That's my name. 
25 MR. CRANE: Right. Go ahead. 
191 
 1 VENIREPERSON PHILIPAK: No, I just don't feel like 
2 it's just -- making a call. I don't know. I just don't. 
3 MR. CRANE: I mean, you know, right now nobody knows 
4 anything about the facts. 
5 VENIREPERSON PHILIPAK: I understand this. But I 
6 mean, even the facts and stuff and everything put together, I 
7 always got a -- I don't know. I guess I don't -- negative 
8 about it. I just -- this is my first time, so I really don't 
9 know. 
10 MR. CRANE: Yeah. You just feel negative kind of 
11 about the process? 
12 VENIREPERSON PHILIPAK: Well, I don't know about the 
13 process itself. It's just -- 
14 MR. CRANE: About you -- 
15 VENIREPERSON PHILIPAK: -- making sure if I know the 
16 facts or -- you know, I understand facts, but -- you know, if 
17 they're -- I guess if they're mostly explained to me. I 
18 don't know. 
19 MR. CRANE: Well, and you know, I can't get into the 
20 facts a whole heck of a lot right now. 
21 VENIREPERSON PHILIPAK: Oh, I understand that. 
22 That's what I am saying. I don't know if I can deal with 
23 that. 
24 MR. CRANE: So as you sit there right now, you're 
25 thinking you would not be able to sit in judgment of the 
192 
 1 defendant in this case? 
2 VENIREPERSON PHILIPAK: No, sir. 
3 MR. CRANE: You don't think you could do that? 
4 VENIREPERSON PHILIPAK: No, sir. Innocent or 
5 guilty. 
6 MR. CRANE: Okay. Thank you, sir. Mr. Philipak? 
7 VENIREPERSON PHILIPAK: Uh-huh. That's correct. 
8 MR. CRANE: And Miss Schupmann. Appreciate that. 
9 Anybody else -- you know, there is no right or wrong 
10 answer here. Okay? We're just trying to be fair and 
11 impartial. 
12 Yes, ma'am. 
13 VENIREPERSON BRININGER: (Inaudible.) 
14 MR. CRANE: Don't want to be a part of it? 
15 THE COURT REPORTER: I'm sorry. I didn't hear what 
16 she said. 
17 MR. CRANE: Brininger. 
18 What did you say? 
19 THE COURT: And also, we can't both talk at the same 
20 time, Mr. Crane, and whoever else might be talking. I know 
21 that in normal conversation you do that, and I do that, but 
22 our court reporter can only write down one person at a time. 
23 So if the prosecutor is asking a question, or defense 
24 counsel, if you'll wait until the question is asked before 
25 answering. And with counsel, if you'll wait until the answer 
193 
 1 is given before moving on to the next, please. 
2 Now if you would, Number 11, if you would repeat 
3 your answer, because I don't think I got it all. 
4 VENIREPERSON BRININGER: I just don't think I could 
5 judge somebody. 
6 THE COURT: I'm sorry? 
7 VENIREPERSON BRININGER: I don't think I could do 
8 it. 
9 MR. CRANE: Can I proceed, Judge? 
10 THE COURT: You may. 
11 MR. CRANE: So you're in the same category as 
12 Miss Schupmann and Mr. Philipak? 
13 VENIREPERSON BRININGER: Right. 
14 MR. CRANE: Okay. 
15 Anybody else? I take it by -- yes, ma'am. Back 
16 there in the back. Are you Miss Fields? 
17 VENIREPERSON FIELDS: Yes. 
18 MR. CRANE: Yes, ma'am. 
19 THE COURT: You'll need to stand up, Miss Fields, 
20 please. 
21 VENIREPERSON FIELDS: I'm sorry. I just feel 
22 uneasy. Feel like I'm judging. It makes me feel uneasy 
23 about it. 
24 MR. CRANE: Well, you will be. Uneasy, uneasy -- 
25 VENIREPERSON FIELDS: I know. 
194 
 1 MR. CRANE: -- is one thing. Do you feel like, as 
2 you sit there right now, knowing no more than you do, that 
3 you could not fairly and impartially listen to both sides in 
4 this case, because of your uneasiness about sitting in 
5 judgment of a fellow human being? 
6 VENIREPERSON FIELDS: I'm just not sure. I just -- 
7 I've never done it before, like this gentleman. 
8 MR. CRANE: Right. 
9 VENIREPERSON FIELDS: And I just -- it's something 
10 different. I've just never done it before. 
11 MR. CRANE: Okay. Well, I mean, only you know in 
12 your heart what the answer is. And I know I'm asking you to 
13 look forward into the future, but do you think could you sit 
14 in judgment of a fellow person? 
15 VENIREPERSON FIELDS: It's hard. 
16 MR. CRANE: Nobody's saying it's easy. Nobody's 
17 saying it's easy. Miss Schupmann, Mr. Philipak, you know, 
18 I'm not saying it's supposed to be easy. 
19 VENIREPERSON PHILIPAK: I understand. 
20 MR. CRANE: Okay? 
21 VENIREPERSON FIELDS: I could do it; I would just 
22 feel uneasy (inaudible). 
23 MR. CRANE: Understood. 
24 THE COURT REPORTER: I'm sorry. I didn't hear what 
25 she said. 
195 
 1 THE COURT: Would you repeat your answer, please, 
2 Miss Fields? 
3 VENIREPERSON FIELDS: I'm sorry. I said I could do 
4 it; I would just feel very uneasy about it. 
5 THE COURT: Thank you. 
6 MR. CRANE: Thank you, ma'am. 
7 I don't see any other hands on that issue. 
8 Some other basic concepts. 
9 It is the state's burden to prove beyond a 
10 reasonable doubt the elements of the offenses for which the 
11 defendant is charged. The defense has no burden of proving 
12 anything. Okay? It's the state's burden to prove the 
13 elements of the offenses. And remember what the Judge said? 
14 She said the defendant in this case is charged with murder in 
15 the first degree. And it has elements of that offense. And 
16 robbery in the first degree. And it has certain elements 
17 that the state has to prove beyond a reasonable doubt. Okay? 
18 At this point, first of all, everybody understand 
19 that just because the defendant is charged with a crime, just 
20 because a filing has been made of a charge, does not mean 
21 that he's guilty. Right? Just the filing of a charge 
22 doesn't make him guilty. Okay? A jury, remember we talked 
23 about this earlier, decides that issue. All right? That's 
24 kind of back to the presumption of innocence thing. 
25 So, at this point in the trial, if we took a vote 
196 
 1 right now, would everybody vote not guilty? All that's been 
2 done is he's been charged; right? There's -- we haven't put 
3 on any evidence to see whether or not a jury decides if we've 
4 met our burden. Right? Everybody agree with that? Not 
5 guilty at this point, because he's just been charged. 
6 Correct? Until such time as you hear evidence, and then 
7 determine if it's been proven beyond a reasonable doubt. No 
8 verdict. Correct? 
9 Has everybody got an open mind at this point then? 
10 I take it by your silence that you agree with that concept. 
11 Reasonable doubt. It's the state's burden to prove 
12 the elements of this -- these offenses beyond a reasonable 
13 doubt. And the Judge has or will read you the definition -- 
14 there's a legal definition of reasonable doubt. That's the 
15 standard. Beyond a reasonable doubt. 
16 Let me ask this. Could each of you, as far as you 
17 know, sitting there right now, use your reason and common 
18 sense to determine whether or not a reasonable doubt exists, 
19 after hearing all the evidence and the law as it's given to 
20 you by the Court in this case? Anybody think they could -- 
21 everybody think they could use their reason and common sense 
22 to decide whether or not the state's met its burden beyond a 
23 reasonable doubt? Okay. I take it by your silence that you 
24 could follow the law on that. 
25 After all the evidence is in, the jury will be 
197 
 1 instructed by the Court as to what the elements I keep 
2 talking about are for these particular offenses. And those 
3 elements are what you apply this reasonable doubt standard 
4 to. Okay? 
5 Is there anybody who feels like they would hold the 
6 state, the prosecution, to a higher standard than beyond a 
7 reasonable doubt? Proof beyond all doubt? Or you hear on TV 
8 sometimes, proof beyond a shadow of a doubt. Those aren't 
9 the legal standards. It's proof beyond a reasonable doubt. 
10 Is there anybody here who feels like the state 
11 should be held to a higher burden than the one I'm telling 
12 you that is the law? 
13 Yes, sir. Mr. -- your thing flipped up there. 
14 Number 14. You're Mr. Norton? 
15 VENIREPERSON NORTON: Yes, sir. 
16 MR. CRANE: Yes, sir. 
17 VENIREPERSON NORTON: I just -- I have to be quite 
18 honest. And I -- I own my own business. I'm the only one 
19 that takes care of that business. I do have a partner, but 
20 I'm still -- I take care of the finance. But I do a lot of 
21 -- I have a farm. I do have a sick father. I've got a dog 
22 that got run over. But I'm not trying to get out of this in 
23 any way. I'll do my duty. 
24 In applying for this jury, I had -- I have a very 
25 rigorous schedule. I had called down here for jury duty and 
198 
 1 missed it. In my business. And when I did, I called, said, 
2 "Hey, I'm sorry. I'm going to get there again." Well, I was 
3 picked up the next day and brought down here and was treated 
4 by some of the folks that I'm looking around here, as far as 
5 security goes, like I was a criminal. I was brought in here, 
6 in front of the judge. I talked to some of the folks here, 
7 and they were extremely rude to me. And so I went -- they 
8 picked me up at my office. They told me that they couldn't 
9 get a hold of me before, but yet they knew my place of 
10 business and where to pick me up and bring me down here. I 
11 sat in front of the judge. I tried to explain, this could 
12 happen to anybody. I have to pay a bunch of bills and do 
13 these things. 
14 MR. CRANE: You mean forgetting the other time? 
15 VENIREPERSON NORTON: No. I'm saying that this was 
16 in a period of two days. I came down here. But what I'm 
17 saying is: That at this point, even sitting here right now, 
18 and again, I am probably as open-minded as anybody, but I do 
19 hold some prejudice, because also I was brought down here, 
20 treated like a criminal, they knew how to get a hold of me, 
21 did not call me or anything like that -- 
22 MR. CRANE: Well -- 
23 VENIREPERSON NORTON: -- said they couldn't read my 
24 number, yet they picked me up. But what I am getting at is: 
25 After that, they said, "Well, you got to get a ride home." 
199 
 1 And then -- 
2 MR. CRANE: Well, let me run this -- can I run this 
3 by you real quick? 
4 VENIREPERSON NORTON: Sure. 
5 MR. CRANE: And I didn't mean to cut you off. 
6 VENIREPERSON NORTON: I just -- I'm sorry. I'm just 
7 saying, you asked me that question, and I -- 
8 MR. CRANE: Hey, man, I'm all for you. Let me run 
9 this by you. You know, I had another question. You can just 
10 go ahead and sit down. Unless you feel better standing up. 
11 VENIREPERSON NORTON: No. That's fine. 
12 MR. CRANE: You know, I had another question I was 
13 going to ask. I kind of want to stay on that reasonable 
14 doubt deal while I'm on it, but I had another question, 
15 about: Has anybody ever had a particularly unpleasant 
16 experience with the judicial system? I think you might fall 
17 in that category. 
18 VENIREPERSON NORTON: Well, it's a little fresh. 
19 That's all I'm saying. 
20 MR. CRANE: No, I'm cool. 
21 VENIREPERSON NORTON: They also made me walk back to 
22 my office. They gave me a ride up here -- 
23 MR. CRANE: Bad experience. 
24 VENIREPERSON NORTON: Very bad. 
25 MR. CRANE: Okay. 
200 
 1 VENIREPERSON NORTON: So I'm a little -- 
2 MR. CRANE: And I'm glad you brought that up. And I 
3 appreciate that. Now, one thing: I -- I haven't been here 
4 in Lincoln County too long, and I haven't been hassled by any 
5 of them. But now remember, if you get on the jury, we're 
6 going back to the people in Boone County, and everybody is so 
7 nice back there. I'm kidding. You understand that that's an 
8 experience you've had, and we're going to head back to Boone 
9 County if we get a jury selected. 
10 VENIREPERSON NORTON: I understand that. 
11 MR. CRANE: I mean, Mr. Richards -- well, see, he's 
12 gone already. He was going to help me out a little bit on 
13 jury selection, but he's not going to be there for the trial. 
14 VENIREPERSON NORTON: I'm just being honest with 
15 you. I'm not trying to get out of anything -- 
16 MR. CRANE: I understand. 
17 VENIREPERSON NORTON: -- but for that gentleman's 
18 sake and the brevity of this situation, I thought would I 
19 bring that forward. 
20 MR. CRANE: Understood. And I appreciate that. I 
21 appreciate that. Very much. And I understand you've -- it's 
22 been an unpleasant experience to you. And you don't feel 
23 like that, given that experience, and all the other things 
24 that are going on in your life, your job, a lot of -- a lot 
25 of stressors -- 
201 
 1 VENIREPERSON NORTON: I mean, that has nothing to do 
2 with it. I'm just saying that -- that doesn't have anything 
3 to do with that. 
4 MR. CRANE: Right. You don't think you could be 
5 fair and impartial if you were selected as a juror in this 
6 case; is that correct? 
7 VENIREPERSON NORTON: If you would ask: Does anyone 
8 hold any prejudices in this case, there's a little tender 
9 wound, and I just thought I would say that. 
10 MR. CRANE: Right. No. And my -- but I'm following 
11 up with you. Do you think that that experience would make it 
12 difficult for you to be fair and impartial in this case? 
13 VENIREPERSON NORTON: Not outside of this area. 
14 MR. CRANE: Okay. 
15 VENIREPERSON NORTON: So if we're in Boone County, 
16 no. 
17 MR. CRANE: So if you -- well, now, they could be a 
18 bunch of mean -- you never know. But you're saying you think 
19 right now it's contained to this courthouse. 
20 VENIREPERSON NORTON: Yes. 
21 MR. CRANE: Okay. All right. Thank you, sir. 
22 Talking about reasonable doubt. And I wanted to ask 
23 you -- remember, I asked you the questions about the burden 
24 of proof and the standard being beyond a reasonable doubt, 
25 not proof beyond all doubt, not proof beyond a shadow of a 
202 
 1 doubt. Remember all that? Okay? Everybody agreed with me 
2 that they understand that that is not the burden, shadow of a 
3 doubt or all doubt. It is beyond a reasonable doubt. Right? 
4 Is everybody okay with that concept? You'd be able to follow 
5 the law on that? 
6 Let me ask it another way. In every case there may 
7 be some unanswered questions in a juror's mind. Okay? About 
8 something. What the weather was. What the time of day was 
9 when the crime occurred. Is everybody okay with the idea 
10 that what the state is -- has to prove beyond a reasonable 
11 doubt is the elements of the charge. Okay? You follow me? 
12 So if the elements don't include what the weather was, 
13 because they don't, that may be an unanswered question. Was 
14 it 30 degrees? Was it 40 degrees? And I'm not saying it's 
15 going to be an issue necessarily in this case. You see what 
16 I mean? There will be some unanswered questions in any case. 
17 The state doesn't have to answer every single question that 
18 comes into your mind -- 
19 MR. ROGERS: Your Honor, I'm going to object. 
20 MR. CRANE: -- does everybody understand that? 
21 MR. ROGERS: Excuse me. I'm objecting, Your Honor, 
22 to any further definition of proof beyond a reasonable doubt, 
23 beyond what the Court's already given in the instructions. 
24 THE COURT: Mr. Crane. 
25 MR. CRANE: I wasn't doing any defining. I was 
203 
 1 asking the jury if they could follow the law. 
2 THE COURT: The objection's overruled. 
3 MR. CRANE: To be fair to the defense, is there 
4 anybody who would hold the state to a lesser burden than 
5 what's required by law? Beyond a reasonable doubt. See? 
6 Follow me? More likely than not he did it. Okay. I take it 
7 by your silence that you're not going to hold the state to a 
8 higher burden or a lesser burden than what's required by law. 
9 Everybody okay with that? I take it by your silence that you 
10 are. 
11 Has anybody on the panel, and again, I'm not trying 
12 to embarrass you or anything, has anybody on the panel had a 
13 particularly unpleasant experience with a police officer? 
14 Sheriff's deputy, highway patrol. And I'm not saying you 
15 ran -- you know, you rolled through a stop sign and, you 
16 know, you got a ticket. I mean -- unless it was particularly 
17 unpleasant, you know. A police officer was -- or a sheriff's 
18 deputy, somebody like that, was -- was -- it was an 
19 unpleasant experience such that it really stands out in your 
20 mind. You were at Woodstock back in the '60s and was minding 
21 your own business and the police were -- yes, ma'am. 
22 Miss Schupmann? 
23 VENIREPERSON SCHUPMANN: Yes. We -- we have 
24 exclusive hunting and fishing rights to a piece of property 
25 here in Lincoln County. And my son, whose name is also on 
204 
 1 the deed, was down there hunting and got arrested and beat up 
2 by a city -- or a county cop. 
3 MR. CRANE: Okay. 
4 VENIREPERSON SCHUPMANN: For hunting. 
5 MR. CRANE: All right. And that -- I'm sorry about 
6 this, John, but I got -- that happened in Lincoln County. 
7 VENIREPERSON SCHUPMANN: Yes. 
8 MR. CRANE: Okay. 
9 VENIREPERSON SCHUPMANN: Yes. 
10 MR. CRANE: All right. Not in Boone County. 
11 VENIREPERSON SCHUPMANN: No. 
12 MR. CRANE: Okay. Would that experience, though, 
13 cause you to have problems fairly and impartially gauging the 
14 credibility of a police officer if they may testify in this 
15 case? 
16 VENIREPERSON SCHUPMANN: Yes. 
17 MR. CRANE: Okay. Thank you, Miss Schupmann. 
18 Appreciate your candor. 
19 Anybody else have a particularly unpleasant 
20 experience with a law enforcement officer, such that you 
21 couldn't be fair and impartial? 
22 Yes, sir. Mr. Harris. 
23 VENIREPERSON HARRIS: It's been a while back, but 
24 one night we were living here in town, and we got a knock on 
25 the door, and about five police officers come rushing through 
205 
 1 the door, pinned us -- me and my fiancee against the wall, 
2 with guns drawn. And we didn't know what was going on. And 
3 come to find out, they had the right address, but the wrong 
4 town. And they left the house and did not apologize. Didn't 
5 say nothing to us. 
6 MR. CRANE: Okay. Would -- that doesn't sound good. 
7 VENIREPERSON HARRIS: It wasn't good. 
8 MR. CRANE: Would that experience -- 
9 VENIREPERSON HARRIS: I don't know -- 
10 MR. CRANE: -- give you difficulty with being fair 
11 and impartial, should police officers testify in this case? 
12 And, you know, you've been real candid earlier, that you've 
13 been -- you've got some issues going, what is it, next -- 
14 week after next. 
15 VENIREPERSON HARRIS: Yeah. 
16 MR. CRANE: Would those experiences make it 
17 difficult for you to be fair and impartial as a juror in this 
18 case? 
19 VENIREPERSON HARRIS: Well, you know, I don't know, 
20 but I'd hate to have that possibility come up. 
21 MR. CRANE: You think -- 
22 VENIREPERSON HARRIS: It's been a long time ago. 
23 MR. CRANE: Right. But it still stands out in your 
24 mind. 
25 VENIREPERSON HARRIS: It's still there, yes. 
206 
 1 MR. CRANE: And there is a possibility that you 
2 would not be fair and impartial. 
3 VENIREPERSON HARRIS: Could be. I'll be honest with 
4 you. Could be. 
5 MR. CRANE: Well, that's all I'm asking for. Thank 
6 you, Mr. Harris. Appreciate that. 
7 Anybody else? 
8 Yes, ma'am. Is it McCullough? 
9 VENIREPERSON McCULLOUGH: Yes. 
10 MR. CRANE: Yes, ma'am. Number 33. 
11 VENIREPERSON McCULLOUGH: Yeah. My house got raided 
12 like, I don't know, about a year ago. Maybe a little bit 
13 more. They didn't find anything, but the cops like 
14 repeatedly lied, trying to get me to help them. 
15 MR. CRANE: You mean they were -- they didn't -- was 
16 it a search warrant at your residence? 
17 VENIREPERSON McCULLOUGH: No. 
18 MR. CRANE: "Raided." 
19 VENIREPERSON McCULLOUGH: Okay. They came to the 
20 door. And my boyfriend's mother let them in. And then they 
21 proceeded to go through the house and tear stuff out of 
22 drawers and all kinds of stuff. 
23 MR. CRANE: And they were telling you stuff that 
24 wasn't right? 
25 VENIREPERSON McCULLOUGH: Right. 
207 
 1 MR. CRANE: And where did that occur? 
2 VENIREPERSON McCULLOUGH: At my house. 
3 MR. CRANE: Which is where? 
4 VENIREPERSON McCULLOUGH: Oh. In Tropicana Village. 
5 MR. CRANE: Which is in what county? 
6 VENIREPERSON McCULLOUGH: Lincoln County. Sorry. 
7 MR. CRANE: Okay. All right. Would that -- thank 
8 you, ma'am. Would that experience be something that stands 
9 out in your mind and has tainted your impression or your 
10 perception of police officers such that you think you could 
11 not be fair and impartial as you gauge the testimony of a law 
12 enforcement officer? 
13 VENIREPERSON McCULLOUGH: It would be a possibility, 
14 yes. 
15 MR. CRANE: Okay. And you know, you got -- you're 
16 the one that knows. 
17 VENIREPERSON McCULLOUGH: Right. 
18 MR. CRANE: You know. I mean, do you think -- not 
19 knowing any more than you do, not knowing who's going to 
20 testify in this case, do you think that that would present a 
21 problem, that experience, kind of like Mr. Harris, 
22 Miss Schupmann indicated, "Golly, I didn't like that, and I'm 
23 going to remember that" kind of flashes through your mind 
24 whenever you see the police. 
25 VENIREPERSON McCULLOUGH: I don't know. I don't 
208 
 1 have a very strong trust for cops, so. 
2 MR. CRANE: And so you think it would make it 
3 difficult for you to be fair and impartial if you sat as a 
4 juror in this case. 
5 VENIREPERSON McCULLOUGH: Probably. 
6 MR. CRANE: Thank you, ma'am. Appreciate it. 
7 Anybody else? 
8 VENIREPERSON HARRIS: Excuse me. 
9 MR. CRANE: Yes, sir. 
10 VENIREPERSON HARRIS: I just wanted to add that I 
11 don't have anything against police officers. I don't 
12 disrespect them at all. I have been in trouble a time or 
13 two, but that hasn't caused me to be hateful towards police 
14 officers or anything. 
15 MR. CRANE: Okay. Well, I didn't mean to suggest 
16 that. 
17 VENIREPERSON HARRIS: And if someone was to testify, 
18 I couldn't tell if he was lying or not. He's under oath. I 
19 guess he would have to -- he would tell the truth. I would 
20 have to assume he's telling the truth. That's all I have to 
21 say about that. 
22 MR. CRANE: Okay. And I'm going to talk about that 
23 here in a minute too. But I appreciate that, Mr. Harris. 
24 Other than Mr., oh, Norton, who's already indicated 
25 he's had some difficulties with the judicial system, is there 
209 
 1 anybody -- did I cut anybody off on that police question? 
2 Did I get everybody? Okay. 
3 Is there anybody who's had a particularly unpleasant 
4 experience with the judicial system generally? Like the -- 
5 being called in for jury duty type situation, or, you know, 
6 you had a civil suit, and I don't need to know the details, 
7 or a divorce, and you felt like you got wooled around, or you 
8 were called into jury duty here a couple years ago and the 
9 prosecutor droned on and on while you sat in agonizing seats. 
10 Anything that really stands out in your mind about an 
11 unpleasant experience with the judicial system that makes you 
12 go, "I don't want to be part of that." Anybody? 
13 We've noted Mr. Norton. Anybody else? Okay. I 
14 take it by your silence nobody's had that experience. 
15 Now, can I -- this is just a show of hands. Could I 
16 see a show of hands of those of you who are, now listen to 
17 me, relatives or close personal friends of somebody in law 
18 enforcement. Police officers, et cetera. 
19 (Show of hands.) 
20 MR. CRANE: Okay. That's several hands up here. 
21 All right. 
22 Now collectively, let me ask you all, is there any 
23 one of you that has something about that relationship with 
24 that close personal friend or relative that's in law 
25 enforcement that would prevent you from being fair and 
210 
 1 impartial to the defense in this case? I mean, could you all 
2 set that relationship aside and be fair to the defense in 
3 this case? Can everybody do that? Raise their hand now. 
4 You with me? Okay. 
5 So, if you found the defendant not guilty, you could 
6 face that close personal friend or relative, in the event 
7 that's what happened. Okay. I take it by your silence that 
8 that would not present a problem for any of you that raised 
9 your hand. 
10 Is there anybody -- well, strike that. Let me make 
11 sure. And you kind of talked about this a little bit, 
12 Mr. Harris. 
13 Nobody here would give a police officer a head start 
14 in credibility just because they're a police officer, would 
15 they? I mean, you'd want to gauge their testimony, 
16 understanding they may be expert in various things in their 
17 job, but wouldn't you all want to gauge the testimony of a 
18 police officer the same as you would any other witness? 
19 I don't know what to think about that reaction here. 
20 Okay. First of all, Mr. Harris, you kind of -- you 
21 said, "Now wait a minute, yeah, I've had some things go down. 
22 And I didn't like that about the police. But, you know, 
23 gosh, I wouldn't necessarily write off their testimony 
24 because of it." Although you did think that you'd have 
25 trouble being fair and impartial. That experience you talked 
211 
 1 about did stand out in your mind; right? 
2 VENIREPERSON HARRIS: Yes. 
3 MR. CRANE: Okay. Now I'm going kind of with the 
4 second thing you said. Am I making myself clear? The police 
5 officer, he or she may have expertise in law enforcement, but 
6 would you be able to gauge their testimony the same as you 
7 would any other witness in this case? See what I'm saying? 
8 I think everybody understands where I'm coming from. I take 
9 it by your silence that you wouldn't give a police officer a 
10 head start just 'cause they're a cop. You'd listen to them, 
11 hear their testimony, gauge it fairly and impartially. I 
12 take it -- is that okay with you, Mr. Harris, that concept? 
13 I take it by your silence everybody's okay with that. 
14 Just a show of hands again, has anybody, yourself, 
15 close personal friends, or relatives been a victim of a 
16 significant criminal offense? Yourself, close personal 
17 friends, relatives. And I'm just looking for a show of hands 
18 here. 
19 (Show of hands.) 
20 MR. CRANE: Okay. Looks like about three of you. 
21 Okay. Yourself, close personal friend, relative. 
22 Would -- let's see. Mr. -- is that Mr. Betts? 
23 VENIREPERSON OHMERT: Ohmert. 
24 MR. CRANE: Ohmert. 
25 And you've been quiet back there, Mr., is it Runge? 
212 
 1 VENIREPERSON RUNGE: Runge. 
2 MR. CRANE: Runge. Number 44. And Miss Schupmann. 
3 Whatever that incident was, would you be able to set that 
4 incident aside and be fair to both the state and the defense 
5 in this case? 
6 Mr. Ohmert? 
7 VENIREPERSON OHMERT: Yes. 
8 MR. CRANE: Mr. Runge? 
9 VENIREPERSON RUNGE: Yes. 
10 MR. CRANE: Miss Schupmann. 
11 VENIREPERSON SCHUPMANN: Yes. 
12 MR. CRANE: You'd all be able to do that. Okay. 
13 The -- how the police may have worked that -- and 
14 you know, when I say "police," let's include that being 
15 sheriff's department, highway patrol, FBI, whatever -- what 
16 have you. Were you satisfied with the way they handled the 
17 matter? If they were involved. You don't have any, "Golly, 
18 they didn't do X, Y, and Z"? You're okay -- you don't have 
19 any heartburn over that. 
20 VENIREPERSON OHMERT: No. 
21 VENIREPERSON RUNGE: No. 
22 MR. CRANE: Okay. 
23 I know you got the thing about the hunter. 
24 VENIREPERSON SCHUPMANN: To a certain extent. Well, 
25 there's another case too. 
213 
 1 MR. CRANE: Okay. Okay. You two guys, though? You 
2 told me about the hunting thing; right? 
3 VENIREPERSON SCHUPMANN: Right. 
4 MR. CRANE: Okay. 
5 So I take it that you all could, other than 
6 Miss Schupmann, is -- a little bit qualified there, could set 
7 that experience aside and give the defendant a fair trial. 
8 Am I correct on that? 
9 VENIREPERSON OHMERT: Yes. 
10 VENIREPERSON RUNGE: Yes. 
11 VENIREPERSON SCHUPMANN: Yes. 
12 MR. CRANE: Let me tell you a little bit about the 
13 victim in this case. His name was Kent Heitholt. 
14 H-e-i-t-h-o-l-t. Mr. Heitholt was a sports editor at the 
15 Columbia Daily Tribune in the City of Columbia. And that's 
16 our big paper in the City of Columbia. He was the sports 
17 editor there. He was 48 years old on November 1st, 2001, 
18 when he was murdered. He lived in Columbia with his wife 
19 Deborah. And they have two kids, Kali Heitholt and Vince 
20 Heitholt. 
21 Now just telling you that much, does anybody go, 
22 "Golly, I think I know that guy"? I take it by your silence 
23 that doesn't ring a bell with anybody. Okay. And nor do 
24 you -- does the family members that I've mentioned ring a 
25 bell. Am I correct? Nobody says so? I take it by your 
214 
 1 silence nobody knows. 
2 Does anybody ever recall reading anything 
3 Mr. Heitholt might have written about sports? I take it by 
4 your silence nobody did. 
5 Anybody here who is close personal friends or 
6 relatives of someone who works or used to work at the 
7 Columbia Daily Tribune in Columbia, Missouri? You were just 
8 scratching. Okay. All right. Kind of like an auction. You 
9 raise your hand, you might buy something. I take it by your 
10 silence nobody does. 
11 Anybody used to work at the Tribune yourself? No? 
12 Media. The Judge talked to you a little bit about 
13 that. I think Miss Schupmann, you're the only one that said 
14 you heard anything; right? 
15 VENIREPERSON SCHUPMANN: Yes. 
16 MR. CRANE: Okay. Now, you all thought about this 
17 for a little bit. Has anybody recalled, maybe on radio, TV, 
18 newspaper, hearing anything about this case? Okay. 
19 Just let me ask you: Doesn't everybody agree that 
20 the decision as to whether or not the defendant is guilty or 
21 innocent should be made pursuant to the rules, the law, the 
22 evidence of a court trial. Doesn't everybody agree with 
23 that? And that the decision should not be made by what we 
24 read in the newspaper or hear on television or radio. I 
25 mean, that's fundamental to the United States of America, is 
215 
 1 it not? Decisions about whether somebody is guilty should be 
2 made in the courtroom, after the evidence is all in. Does 
3 everybody agree with that? I take it by your silence that 
4 you do. 
5 Another legal concept that might come up in this 
6 case. Under Missouri law, this is what -- what we're talking 
7 about here is acting in concert, or the concept of accomplice 
8 liability. Under Missouri law, a person is responsible for 
9 his own conduct, and he is also responsible for the conduct 
10 of others, another person, in committing a crime, stay with 
11 me on this, if he acts with them for the common purpose of 
12 committing that crime or if, for the purpose of committing 
13 that crime, he aids or encourages the other person in 
14 committing it. You can tell that law was written by 
15 attorneys. Does everybody -- did everybody get -- stay with 
16 me on that one? The conduct of one person can be attributed 
17 to another person if this person is aiding or encouraging and 
18 acting in furtherance of the commission of the crime. Is 
19 anybody not staying with me? And if you're not, that's okay. 
20 Let me know. Okay. 
21 For instance, here's kind of a classic hypothetical 
22 or an example. You got a -- two guys go to do a bank 
23 robbery. And they both know that there's going to be a 
24 robbery going down. And one guy's the wheelman. And -- you 
25 know, the get-away driver. And the other guy is going to go 
216 
 1 in and stick 'em up and rob the bank; okay? 
2 Under the concept of in concert or accomplice 
3 liability, the guy pulls him up to the bank, and Bad Guy 
4 Number 1 goes in and sticks him up and takes the money. And 
5 then Bad Guy Number 1 runs back out, and Bad Guy Number 2, 
6 the wheelman, drives off. Okay? They're both guilty of 
7 robbery. You follow me? Now punishment may be a different 
8 issue. Maybe the guy with the gun gets more punishment than 
9 the guy that was in the car. That's not what we're talking 
10 about. We're talking about get-away driver aided and 
11 encouraged and acted in furtherance of the robbery. So he's 
12 acting in concert with the one that actually went in and 
13 stuck him up. You got it? You with me on that? Everybody 
14 agree with that legal concept? Okay. 
15 Take it a step further. There's also an offense 
16 called felony murder. Felony murder is another form of 
17 murder in the second degree. Felony murder -- let's take 
18 that hypothetical about the bank. Get-away driver drives his 
19 buddy to the bank; the buddy goes in, robs the bank, and 
20 shoots one of the employees at the bank. Now maybe the 
21 shooter could be charged and found guilty of murder in the 
22 first degree or murder in the second degree, all right, 
23 depending on the facts. But what about my get-away driver? 
24 Now we've already said he's guilty of robbery; right? Acting 
25 in concert? This crime of felony murder is -- states that 
217 
 1 if, in the course of the commission of a felony, we got a 
2 robbery, right, somebody dies as a result thereof, then they 
3 can be charged with felony murder and the underlying offense 
4 of robbery. 
5 So the wheelman stayed outside. Maybe he knew or 
6 maybe he didn't know that his buddy was going to go shoot the 
7 bank teller. Doesn't matter. He was acting in concert to 
8 commit robbery. Waiting for him to come back out. Be the 
9 get-away driver. Right? And in the course of the commission 
10 of that felony, somebody died. Get-away driver, guilty 
11 felony murder. Murder second degree. 
12 What do you think about that? Anybody going, 
13 "Golly, that don't sound right"? Everybody okay with that 
14 concept? You okay? You're thinking awful hard. 
15 Does everybody think -- I mean, that's the law in 
16 the State of Missouri as to that offense. Anybody have a 
17 problem with that? Doesn't think they could follow that 
18 concept? 
19 What do you think? You okay with it? I don't think 
20 I've -- Miss Moretto? 
21 VENIREPERSON MORETTO: Yes. 
22 MR. CRANE: How -- you're thinking hard. 
23 VENIREPERSON MORETTO: I agree. 
24 MR. CRANE: You agree you're thinking hard or you're 
25 okay with that legal concept? 
218 
 1 VENIREPERSON MORETTO: No, I agree with the legal 
2 concept. 
3 MR. CRANE: All right. All right. Let me move on 
4 then. 
5 Ladies and gentlemen, one of the state's witnesses 
6 in this case is Charles Erickson. He goes by Chuck. Chuck 
7 Erickson. He was also charged in this crime, along with the 
8 defendant, Ryan Ferguson. And I'm going to tell you now, in 
9 exchange for his testimony in this case, Mr. Erickson will 
10 receive 25 years in prison. He has pled guilty, but will not 
11 be sentenced until after this trial. Assuming that 
12 Mr. Erickson honors his side of the plea agreement and 
13 provides truthful testimony, he will receive a 25-year 
14 sentence. 
15 MR. ROGERS: Your Honor, I'm going to have to object 
16 to the prosecutor endorsing the truthfulness of Erickson's 
17 testimony. That's not for him to decide. 
18 THE COURT: I -- would you repeat your question 
19 again? Or are you making a statement, Mr. Crane? 
20 MR. CRANE: I'm -- I was mirroring the terms of the 
21 agreement. We can approach on this matter if you wish. I 
22 don't think at this point you want me to repeat that 
23 question, do you, Mr. Rogers? 
24 MR. ROGERS: That's correct. I think you're right. 
25 THE COURT: All right. 
219 
 1 - - - 
2 Counsel approached the bench and the following 
3 proceedings were held: 
4 MR. CRANE: Judge, we had an understanding that -- 
5 the defense had filed a motion in limine, and we agreed, as I 
6 understand it, that the state could not repeatedly talk about 
7 the truthful nature of his testimony. I take it Mr. Rogers 
8 would object. I think this is the juncture at which that 
9 word is going to be used. The law, as we took up in our 
10 motion, says that the state can't just say it over and over 
11 and over. 
12 MR. ROGERS: The problem here, Your Honor, is that 
13 he is conditioning his question on the truthfulness of 
14 Mr. Erickson's testimony. And there's no way that that's 
15 appropriate. And it's not being given any context, other 
16 than the prosecutor vouching for the truthfulness of the 
17 testimony. He's talking about if his -- if he -- I believe 
18 the question was: If he lives up to his part of the plea 
19 agreement and gives truthful testimony, then he's going to 
20 get a sentence of 25 years, I think is what you were next 
21 going to say. 
22 MR. CRANE: That's true. I'm talking to them about 
23 their feelings on plea agreements. 
24 MR. ROGERS: I think you can do that without -- I 
25 think the state can talk to them about feelings on plea 
220 
 1 agreements without vouching for the truthfulness of the 
2 witness's testimony. 
3 MR. CRANE: That's not vouching. 
4 THE COURT: Just wait a minute. Let Mr. Rogers 
5 finish. 
6 MR. CRANE: Oh, I thought you were done. 
7 MR. ROGERS: That's -- basically that's my 
8 objection. I don't think there's any need or use or anything 
9 except prejudice resulting from going into the purported 
10 truthfulness of the testimony at this stage, where it's not 
11 subject to any type of cross-examination and it has not been 
12 subject to any cross-examination. So that's my objection. 
13 THE COURT: The way it was -- the way the statement 
14 was phrased, I believe that term was used once. 
15 MR. ROGERS: Yes. I objected the first time it was 
16 used. 
17 THE COURT: Yes. You did object to it. And at this 
18 point I'm going to overrule that objection, but will caution 
19 the state not to repeat it and go on into it, other than -- 
20 MR. CRANE: Understood, Judge. Very good. 
21 THE COURT: All right. 
22 - - - 
23 The following proceedings were held in open court: 
24 MR. CRANE: Proceed, Your Honor? 
25 THE COURT: You may proceed. 
221 
 1 MR. CRANE: Okay. 
2 In exchange for his testimony in this case, 
3 Mr. Erickson will receive 25 years in prison. He's pled 
4 guilty already, but he's not been sentenced. And that's not 
5 going to happen until after this trial is over. Okay? 
6 Assuming that Mr. Erickson honors his end of the 
7 agreement and provides truthful testimony, he would receive a 
8 25-year sentence in prison. And he'd get those 25 years, 
9 whether you find the defendant in this case guilty or not. 
10 Now at this stage I can't tell you a whole lot more 
11 about the facts. But having heard just that much, is there 
12 anybody who would refuse to listen to and weigh the 
13 credibility of this witness I'm referring to because you feel 
14 the state should not make plea bargains with the 
15 understanding it will be in return for testimony? You see 
16 what I'm saying? Is there anybody uncomfortable with that 
17 notion? You know, "I don't like that idea. It doesn't 
18 matter what they got. I don't want to hear that guy." 
19 Yes, sir. Mr. -- 
20 VENIREPERSON MOORE: Moore. 
21 MR. CRANE: -- Moore. Yeah. 
22 VENIREPERSON MOORE: I have an objection with that. 
23 If the law states that a sentence for a specific crime should 
24 carry whatever the sentence may be, whether there's one, two, 
25 three, or four defendants in it, I think they should all be 
222 
 1 dealt the very same sentence. Because they all equally 
2 committed the crime. Just because it makes the state's case 
3 a little easier doesn't mean he's not just as guilty. 
4 MR. CRANE: Well, now, that's true. I understand 
5 your concept. And you know, we can take that back to the 
6 get-away driver thing. I was really only talking about guilt 
7 in that scenario, and really not punishment. Because they -- 
8 well, really, their actions differ. The get-away driver 
9 drove the car. He's a bad guy. He shouldn't have been 
10 involved in the robbery. Remember, I'm not saying that's 
11 like the facts of this case necessarily. I'm just talking 
12 about the law. But maybe the shooter ought to get more time. 
13 Right? 
14 VENIREPERSON MOORE: I would agree with that. 
15 MR. CRANE: See, so those two guys did things that 
16 are different factually, and maybe one ought to get this and 
17 one ought to get that. In punishment. Right? 
18 VENIREPERSON MOORE: Oh, without knowing any further 
19 facts -- 
20 MR. CRANE: That's the thing. I can't give you an 
21 opening statement. Can't put on any evidence. 
22 VENIREPERSON MOORE: That's my feeling. 
23 MR. CRANE: Well, I know. And I want to get real -- 
24 you also said you were concerned about your wife being by 
25 herself too, didn't you? 
223 
 1 VENIREPERSON MOORE: Yes. 
2 MR. CRANE: But you're thinking that you don't like 
3 the idea of a plea agreement, because everybody ought to get 
4 the same thing if they did the same thing? 
5 VENIREPERSON MOORE: Yes. 
6 MR. CRANE: What if they didn't? 
7 VENIREPERSON MOORE: What if they didn't what? 
8 MR. CRANE: Do the same thing. 
9 VENIREPERSON MOORE: Well, I'm not sure -- 
10 MR. CRANE: It's a snowflake; right? 
11 VENIREPERSON MOORE: -- what the same thing is. 
12 MR. CRANE: Exactly. 
13 VENIREPERSON MOORE: That comes in degrees. 
14 MR. CRANE: Okay. So you'd have to hear the facts. 
15 VENIREPERSON MOORE: Yes. 
16 MR. CRANE: Okay. Because somebody had an 
17 agreement, the witness now is what I'm talking about, with 
18 the state, would you not gauge them the same? Would you not 
19 lend them credibility because of that agreement? See, that's 
20 really what I'm asking. 
21 VENIREPERSON MOORE: Somewhere I'd have to read it 
22 in that he might be trying to save his own neck. 
23 MR. CRANE: Okay. 25 years -- 
24 VENIREPERSON MOORE: Still involved in the same 
25 crime. 
224 
 1 MR. CRANE: Understood. Would that cause you to 
2 have trouble fairly and impartially gauging the testimony of 
3 that witness? 
4 VENIREPERSON MOORE: I don't know. 
5 MR. CRANE: Okay. 
6 Miss Schupmann, would it be a problem? 
7 THE COURT: Mr. Moore, I did not hear your answer, 
8 sir. 
9 VENIREPERSON MOORE: I said at this point I really 
10 don't know -- 
11 THE COURT: All right. 
12 VENIREPERSON MOORE: -- if it would or not. 
13 THE COURT: Thank you. 
14 MR. CRANE: Miss Schupmann, it would be a problem 
15 for you? 
16 VENIREPERSON SCHUPMANN: Yes. 
17 MR. CRANE: You wouldn't be able to fairly and 
18 impartially gauge the testimony of a witness who had -- was 
19 testifying and had already pled guilty under an agreement 
20 with the state. 
21 VENIREPERSON SCHUPMANN: That's correct. 
22 MR. CRANE: Okay. 
23 Did you hear that, Judge? 
24 THE COURT: Yes, I heard it, Mr. Crane. 
25 MR. CRANE: Anybody else? 
225 
 1 Yes, ma'am. 
2 VENIREPERSON BRININGER: I think so too. Because 
3 you don't know if the other guy's lying. 
4 THE COURT: I'm sorry, Miss Brininger. You'll just 
5 have to speak up a bit, all the way over to here and the 
6 reporter -- if you can stand, it might -- you might project 
7 your voice a little louder. 
8 VENIREPERSON BRININGER: Well, you don't know if the 
9 other guy's lying about, what, saving his butt, where he 
10 would get shorter time. 
11 MR. CRANE: So the question is then: Would you have 
12 trouble fairly evaluating or listening to the testimony of 
13 the guy who may be trying to save his butt -- 
14 VENIREPERSON BRININGER: Yeah. 
15 MR. CRANE: -- as you call it. 
16 VENIREPERSON BRININGER: Yes. 
17 MR. CRANE: Okay. I'm not suggesting that's 
18 necessarily what's going on, but that concept gives you 
19 problems. 
20 VENIREPERSON BRININGER: Yeah. 
21 MR. CRANE: Okay. Thank you, ma'am. 
22 Somebody else. Yeah. Mr. Straught -- I thought I 
23 pronounced it right the first time, and then I can't get it 
24 out. Straughter? 
25 VENIREPERSON STRAUGHTER: That's close. 
226 
 1 MR. CRANE: Yes, sir. 
2 VENIREPERSON STRAUGHTER: Yeah, I have a problem. 
3 MR. CRANE: I guess you better stand up. 
4 VENIREPERSON STRAUGHTER: I guess so. 
5 I would have a problem with that. Prior to you 
6 making that statement that you had a witness that had -- 
7 going to get 25 years of his life, prior to that I had no 
8 problem with trying to judge that young man there. But since 
9 you made that statement, I do now. 
10 MR. CRANE: Okay. 
11 VENIREPERSON STRAUGHTER: Because I find it hard for 
12 a person to give up 25 years of his life, lying, in behalf of 
13 that young man. So I -- 
14 MR. CRANE: Oh, you're going the other way. 
15 VENIREPERSON STRAUGHTER: Yeah. I would have a 
16 problem with trying to make -- 
17 MR. CRANE: Okay. Well, wait a minute. Let me 
18 ask -- let's stick with -- and you got an interesting concept 
19 going. 
20 First of all, the concept of the state entering into 
21 an agreement with somebody that's committed a crime, a 
22 murder, and then using them as a witness in exchange for 
23 their testimony, and they're going for 25 years, we just 
24 talked about that, well, first of all, would that cause 
25 difficulty for you in terms of believing the witness? 
227 
 1 VENIREPERSON STRAUGHTER: Yes. 
2 MR. CRANE: Okay. It would. Such that you could 
3 not be fair and impartial to that witness. 
4 VENIREPERSON STRAUGHTER: To the witness -- 
5 MR. CRANE: The witness -- 
6 VENIREPERSON STRAUGHTER: -- who got the 25 years. 
7 MR. CRANE: Yeah. Or are you talking about the 
8 defendant? 
9 VENIREPERSON STRAUGHTER: I'm talking about the 
10 defendant. 
11 MR. CRANE: Okay. All right. So, the fact that he 
12 had that sentence, and, you know, we were talking about that 
13 a minute ago, it's within the range, would make you have -- 
14 give him a head start, even though you don't know anything 
15 about the case at this point. 
16 VENIREPERSON STRAUGHTER: I know enough about the 
17 case that that young man gave up 25 years of his life, to let 
18 him get off. 
19 MR. CRANE: We haven't even talked about the range 
20 of punishment. 
21 VENIREPERSON STRAUGHTER: You told me 25 years. 
22 MR. CRANE: No, no, no. I just said that's what his 
23 sentence would be. That's not the range. Maybe he could 
24 have got more. 
25 VENIREPERSON STRAUGHTER: But you told me that he 
228 
 1 was going to get 25 years after this trial was over. 
2 MR. CRANE: Correct. As part of the plea. Correct. 
3 That's true. I see what you're saying. I see what you're 
4 saying. That's a long time. 
5 VENIREPERSON STRAUGHTER: That would prejudice me in 
6 giving that man a fair chance. 
7 MR. CRANE: Okay. 
8 VENIREPERSON NORTON: So he pled guilty. 
9 MR. CRANE: Let's see. That's Number 14, 
10 Mr. Norton. 
11 VENIREPERSON NORTON: He pled guilty. He was not 
12 tried. He took a plea, is what you're saying. The other 
13 person. 
14 MR. CRANE: Correct. 
15 VENIREPERSON NORTON: I just wanted to make that 
16 clear. 
17 MR. CRANE: Yeah. Everybody understood that; right? 
18 Charles, Chuck, he goes by Chuck Erickson, took a plea. 
19 Okay. And entered into this agreement. Okay. 
20 Okay. Let me ask you all this collectively, because 
21 I know we're -- this is just getting old. Everybody that 
22 hasn't otherwise indicated, are you all going to be able to 
23 gauge the testimony of this witness fairly and impartially, 
24 other than those of you who have spoken up? You would be 
25 able to gauge him fairly and impartially on -- for both 
229 
 1 sides. Okay? 
2 What Mr. -- we just talked about here with Mr. -- 
3 you know, I keep wanting you to call Slaughter, and it's 
4 Straughter. 
5 VENIREPERSON STRAUGHTER: Just call it Oscar. It's 
6 easier. 
7 MR. CRANE: Okay. 
8 VENIREPERSON STRAUGHTER: Juror 50. 
9 MR. CRANE: Is everybody going to be able to be fair 
10 and impartial on both sides of this equation? The issue that 
11 there's a plea bargain isn't going to cause, other than those 
12 who have spoken up, isn't going to cause you problems in 
13 fairly and impartially gauging his credibility. And the 
14 issue of the sentence that we're talking about would also not 
15 change your mind about his credibility. As you sit there 
16 right now, you're going to gauge his credibility when he hits 
17 the stand just like any other witness. Other than those of 
18 you who have spoken up. Have I got that right? I take it by 
19 your silence I have. 
20 Yes, ma'am. 
21 VENIREPERSON SUSAN GALLOWAY: I'm kind -- I'm kind 
22 of feeling like -- 
23 THE COURT: Excuse me. Would you stand up, please, 
24 so that I can see who you are. 
25 MR. CRANE: And you are Miss -- 
230 
 1 VENIREPERSON SUSAN GALLOWAY: 28. 
2 MR. CRANE: -- Galloway. 
3 THE COURT: Juror 28. Thank you. 
4 MR. CRANE: Yes, ma'am. 
5 VENIREPERSON SUSAN GALLOWAY: I kind of got to agree 
6 with that guy back there. That if this witness is taking 25 
7 years of his life, I am assuming he's certainly guilty. And 
8 if he's trying to say this other guy's guilty, I'm -- I'm 
9 buying his story. 
10 MR. CRANE: Okay. You raise an interesting point. 
11 I can't get into that with you at this juncture, specifically 
12 about the facts of this case and what the defense may be -- 
13 VENIREPERSON SUSAN GALLOWAY: So in other words -- 
14 MR. CRANE: -- but let me -- let me ask you this. 
15 The idea -- you don't know -- I mean, I was going to talk in 
16 a minute about the ranges of punishment. Every crime's got a 
17 range of punishment. There's ranges of punishment on the 
18 crimes that Mr. Erickson pled guilty to. He pled guilty, I 
19 told you, to murder second, robbery first, and armed criminal 
20 action. Each one of those offenses has a range. Okay? Do 
21 you understand that he could have potentially received more 
22 time than what he pled guilty to, or he could have received 
23 less time. You agree with that concept? 
24 VENIREPERSON SUSAN GALLOWAY: Yes. 
25 MR. CRANE: Okay. And you don't know the facts of 
231 
 1 the case right now, do you? 
2 VENIREPERSON SUSAN GALLOWAY: No. 
3 MR. CRANE: Okay. So have you already decided 
4 whether or not Mr. Erickson is credible at this point? How 
5 could you? You haven't heard the facts. Correct? 
6 VENIREPERSON SUSAN GALLOWAY: Correct. 
7 MR. CRANE: Okay. So not knowing any more than what 
8 I told you about the agreement, would you be able to give 
9 such a witness, as Mr. Erickson, a fair and impartial 
10 evaluation as you would any other witness? Not knowing any 
11 more than you do right now. I'm not saying 25 years isn't a 
12 long time. I'm not saying that. But you don't know anything 
13 about the facts; right? 
14 VENIREPERSON SUSAN GALLOWAY: Right. 
15 MR. CRANE: Would you be able to sit as a fair and 
16 impartial juror and gauge his testimony just like you would 
17 anybody else's? That's the question. 
18 VENIREPERSON SUSAN GALLOWAY: I hope so. 
19 THE COURT: I'm sorry? 
20 VENIREPERSON SUSAN GALLOWAY: I hope so. 
21 MR. CRANE: All right. 
22 Everybody else okay with that? What I just asked 
23 Miss -- 
24 THE COURT: Galloway. 
25 MR. CRANE: -- Galloway? Anybody else? 
232 
 1 You see, we talked about both sides of the equation? 
2 Okay. All right. 
3 I take it by your silence that everybody else can 
4 give Charles Erickson, Chuck Erickson, a fair, other than 
5 those of you who have spoken up, a fair and impartial 
6 evaluation of his testimony. Not going to be in favor of the 
7 defense or in favor of the state, as you sit here right now. 
8 Correct? 
9 There may be evidence of underage drinking in this 
10 case. Is there anybody on the panel who, if you heard that 
11 the defendant or anybody, any witness in this case, had been 
12 drinking alcohol, you'd go, "Whoa, that's it, by golly. 
13 That's enough for me. If he's drinking, under age, he's got 
14 to be guilty." Anybody feel so strongly about that issue 
15 that may arise that they'd go, "All right, hey, that's it for 
16 me. That's all I got to hear"? 
17 I mean, remember, this is a murder case. There'll 
18 be a lot of issues to evaluate. Is anybody going to take 
19 that and go, "Well, that's a big problem there"? I'm not 
20 saying it's a great thing, to even encourage it, but you see 
21 what I mean. I take it by your silence nobody would have 
22 that attitude. 
23 If the defendant was in a bar, an adult 
24 establishment, drinking, same response. That's something 
25 that you would take as part of the case and listen to it, but 
233 
 1 not immediately make a decision. Based on that type of 
2 conduct. I take it by your silence that you could be fair on 
3 that issue. 
4 Is there anyone who could not consider the testimony 
5 of a witness who was to some degree intoxicated during the 
6 events they describe? When they're on the stand. You see 
7 what I'm saying? "Well, if they had been drinking, forget 
8 it. You can't believe nothing." Anybody have that attitude? 
9 Okay? 
10 What are you guys laughing about? Did I say -- 
11 VENIREPERSON KELLY: It depends on how much they'd 
12 been drinking. 
13 MR. CRANE: Huh? 
14 VENIREPERSON KELLY: It depends on how much they'd 
15 been drinking. 
16 MR. CRANE: It does. It depends on a lot of 
17 factors, doesn't it? Right. Right. Okay. But you'd want 
18 to know the facts. 
19 VENIREPERSON KELLY: That's right. 
20 MR. CRANE: Okay. So you'd -- is there anybody that 
21 would just discount the testimony of somebody when they're 
22 testifying they had been intoxicated to some degree? Did you 
23 scratch? Did you scratch? I thought I saw your hand go up. 
24 VENIREPERSON WILLIAM THOMAS: Me? 
25 MR. CRANE: Yeah. 
234 
 1 VENIREPERSON WILLIAM THOMAS: Scratch. Sorry. 
2 MR. CRANE: Okay. That's all right. You can 
3 scratch. 
4 As the Court's told you and I told you, this case is 
5 a murder case. During the trial there's going to be 
6 photographs and items of evidence presented to the jury to 
7 assist the jury in understanding the facts of this case. 
8 Jurors will be asked to look closely at the photos of the 
9 wounds of the victim. Is there anybody on the panel who does 
10 not think that they could look at and evaluate those photos 
11 and things? I take it by your silence everybody can do that. 
12 Am I going too fast? Going too slow; right? 
13 Anybody think they can't do that? Okay. 
14 Is there anyone on the panel who, because of moral 
15 or religious or personal feelings, just could not evaluate 
16 that type of admittedly unpleasant evidence? 
17 Miss Schupmann? 
18 VENIREPERSON SCHUPMANN: Uh-huh. 
19 MR. CRANE: You couldn't? 
20 VENIREPERSON SCHUPMANN: That's correct. 
21 MR. CRANE: That's noted, ma'am. Thank you. 
22 Miss Schupmann said she could not. 
23 Let me talk to you about what's referred to in some 
24 circles as the CSI effect. It's Crime Scene Investigation or 
25 Crime Scene Investigator. How many of you all have seen that 
235 
 1 show? 
2 (Show of hands.) 
3 MR. CRANE: A lot of you? A lot of you? Okay. 
4 There's a lot of TV shows that tell stories about solving 
5 crimes by connecting forensic or physical evidence to the bad 
6 guy. Some great looking detective or some voluptuous coroner 
7 uses all the investigative equipment known to man, and some 
8 that's not known to man. And the background music gets 
9 louder and faster, and you know that that detective, actor, 
10 is about to find some good stuff. And they always find the 
11 bad guy's DNA or hair or the victim's cat fur or fingerprints 
12 or whatever, and they solve that crime in an hour, with 
13 commercials, don't they? 
14 Does everybody agree that shows like CSI, and even 
15 some news programs or movies, does anybody feel like that 
16 those are accurate depictions of criminal investigations in 
17 real life? And you know, don't let me -- I'm not trying to 
18 make fun of you if you do. Don't get me wrong. Does anybody 
19 feel like that, you know, "I know how to work a crime scene 
20 because I watch TV"? Now come on now. I'm not trying to 
21 make fun of you. Tell me what you think. You think you've 
22 learned something from CSI? You think that's the way it is? 
23 Let me know. Now, I really thought I'd get somebody saying, 
24 "Yeah." Nobody. Okay. 
25 Does everybody agree that shows like that are made 
236 
 1 to get people to tune in and watch it for entertainment? 
2 Does everybody agree with that? Anybody who think they're 
3 kind of an expert in crime scene investigations because of 
4 what they've seen on TV? Let me know. Okay. 
5 Does anybody think that discovering forensic 
6 evidence, and when I say "forensic evidence," you know, 
7 blood, hair, DNA, what have you, is a relatively fast and 
8 easy process? Anybody think that? Relatively fast -- I 
9 mean, you know, we just talked about it on TV. I mean, wham, 
10 bam, they get that thing run through the machine and there 
11 are the guys -- you know, evidence is, and we go on down the 
12 road. Okay. Does everybody recognize that's just on TV? 
13 Does anybody here think -- now listen to me. Don't 
14 give up on me. This is important. Does anybody here think 
15 that, in this day and age, science, forensic science, will 
16 solve every crime? You know, does anybody think, "Gosh, you 
17 know, I sit around -- I watch TV, and, you know, really they 
18 always solve this thing there at the crime scene or whatever. 
19 Why waste gas and time driving around trying to interview 
20 witnesses? Just wait around the scene, wait long enough, 
21 you're going to find something. Throw it in the hopper and 
22 it will come out telling you who the bad guy is." I take it 
23 none of you feel that way about the realities of criminal 
24 investigations. 
25 Now don't let me browbeat you. You know, if you do 
237 
 1 feel like that should be the case or is the case, please say 
2 so. Because I'm going to tell you right now, I'm going to be 
3 straight up, there is no physical evidence in this case that 
4 the state will present that connects Ryan Ferguson to the 
5 crime scene. We don't have physical evidence, hair, DNA, 
6 fingerprints that connects Chuck Erickson to the crime scene. 
7 Is there anyone who believes that if such evidence 
8 is not presented by the prosecution, then you could not find 
9 the defendant guilty? Everybody listening to me? I know 
10 you're getting wore out. Does anybody believe that the state 
11 is required to provide physical evidence under the law in 
12 order for you to find the defendant guilty? Anybody think 
13 that's a requirement? 
14 Yes, sir. You are Mr. Headrick. Yes, sir, 
15 Mr. Headrick. 
16 VENIREPERSON HEADRICK: I think so. 
17 MR. CRANE: So -- and I appreciate your candor. You 
18 believe that regardless of what the other evidence in the 
19 case may be, the state -- you would want and require the 
20 state to provide some physical evidence, fingerprint, at the 
21 scene. 
22 VENIREPERSON HEADRICK: If by "evidence" you mean 
23 somebody else's testimony? Then -- 
24 MR. CRANE: Yeah. That would not be physical 
25 evidence. See, what -- I'm going back to crime scene -- you 
238 
 1 know, crime scene -- 
2 VENIREPERSON HEADRICK: To me, there would have to 
3 be evidence. I'm not going to say -- 
4 MR. CRANE: Well, no, now wait a minute. Now let's 
5 make sure -- 
6 THE COURT: Mr. Headrick, would you mind standing up 
7 so that we -- 
8 VENIREPERSON HEADRICK: Yes, ma'am. 
9 THE COURT: -- can hear you and the court reporter. 
10 VENIREPERSON HEADRICK: There would have -- there 
11 would definitely have to be physical evidence for me -- 
12 MR. CRANE: All right. So -- 
13 VENIREPERSON HEADRICK: -- that they're guilty of 
14 the crime. 
15 MR. CRANE: -- if the state doesn't provide evidence 
16 of fingerprints or DNA or hair or something along -- I won't 
17 go back through all those, you know what I'm saying, you 
18 wouldn't be able to find the defendant guilty. 
19 VENIREPERSON HEADRICK: No. Hard proof. I need 
20 evidence, yeah. 
21 MR. CRANE: Okay. All right. Well, you need 
22 evidence. You're saying -- 
23 VENIREPERSON HEADRICK: I need -- 
24 MR. CRANE: -- physical evidence. 
25 VENIREPERSON HEADRICK: -- something that you can 
239 
 1 see, something you can show me that says -- 
2 MR. CRANE: So a witness -- 
3 VENIREPERSON HEADRICK: -- that man did it. A 
4 witness, I can't go off somebody's word, no. 
5 MR. CRANE: Okay. Very good. Thank you, sir. 
6 Anybody else feel the same -- what was it? 
7 Headrick? 
8 VENIREPERSON HEADRICK: Yes, sir. 
9 MR. CRANE: -- Number 34? Anybody else on that same 
10 line of questioning feels the same as Mr. Headrick? And I 
11 appreciate your candor, sir. Thank you. 
12 Miss Schupmann? 
13 VENIREPERSON SCHUPMANN: Yes, I do. 
14 MR. CRANE: That's noted. You would not be able -- 
15 VENIREPERSON SCHUPMANN: That's correct. 
16 MR. CRANE: -- to convict, unless there was some 
17 physical evidence. 
18 VENIREPERSON SCHUPMANN: That's correct. 
19 MR. CRANE: Everybody understands between "evidence" 
20 and "physical evidence." Okay. 
21 VENIREPERSON NORTON: Is a body considered physical 
22 evidence? 
23 MR. CRANE: Well, what we were talking about was 
24 physical evidence that, for instance, the defendant was at 
25 the scene type of thing. 
240 
 1 VENIREPERSON NORTON: Okay. 
2 MR. CRANE: Did you need me to follow up? 
3 VENIREPERSON NORTON: No. That's fine. 
4 MR. CRANE: Okay. 
5 VENIREPERSON DECLUE: Yeah, I would have a problem 
6 with that. 
7 MR. CRANE: Mr. Declue? 
8 VENIREPERSON DECLUE: Yes, sir. You're just going 
9 on someone's hearsay. That's like someone saying, like, all 
10 right, for instance, someone in the room would say something 
11 bad about you. That don't make it true. 
12 MR. CRANE: Well, goll, I'm glad of that. 
13 VENIREPERSON DECLUE: You know what I'm saying? 
14 MR. CRANE: Yeah, I know. You know, I'm really not 
15 able to get into the facts much of this case at this stage. 
16 It's not an issue of hearsay here. It -- there may be other 
17 things. I hear the defense back there a little bit. There 
18 may be other arguments about the state's case, but it would 
19 not be hearsay. And remember what I told you about the 
20 Charles Erickson agreement? He also pled guilty. He pled 
21 guilty to the murder. You follow me? That's not hearsay. 
22 See what I mean? 
23 VENIREPERSON DECLUE: I understand. I'm sorry. I 
24 didn't relate the two of them together. 
25 MR. CRANE: Yeah. And I can't really give you a 
241 
 1 whole lot. You see, I'm tiptoeing around. I can't give you 
2 a whole lot, see? Okay. 
3 Yeah. 
4 VENIREPERSON PUND: Can you put it back into the 
5 bank robber scenario? 
6 THE COURT: Excuse me. Would you stand. I can't 
7 see your number from here. 
8 VENIREPERSON PUND: I just thought maybe he could 
9 put it back into the bank robbery example. 
10 MR. CRANE: Well, on the physical evidence thing? 
11 VENIREPERSON PUND: Right. Your -- the driver 
12 wasn't -- there's no physical evidence that the driver was 
13 there, but we should go on other evidence. 
14 MR. CRANE: You could. Yeah. If it's there. 
15 Right. The question was: Would you require physical 
16 evidence? Juror Number 34 said yes. Would you require 
17 physical evidence before you could find him guilty? What do 
18 you think? And I know -- you were trying to help me, weren't 
19 you? 
20 VENIREPERSON PUND: Right. I was. 
21 MR. CRANE: I appreciate that. Is there -- is there 
22 anybody -- do you -- but you're okay -- you could do that? 
23 VENIREPERSON PUND: Right. 
24 MR. CRANE: You would not -- okay. You understand 
25 that's not an element of the charge. 
242 
 1 VENIREPERSON PUND: Right. 
2 MR. CRANE: Okay. 
3 VENIREPERSON HEADRICK: I might -- I might have to 
4 retract that then, because, I mean, if you consider maybe 
5 there's ten people that actually saw him do it, I would 
6 consider that physical evidence. If you didn't find a hair 
7 or something -- 
8 MR. CRANE: Well, okay. I mean, it's not a numbers 
9 game, as to how many people saw -- 
10 VENIREPERSON HEADRICK: So I guess I'm going to have 
11 to retract that then, because I don't know -- you know what 
12 I'm saying? 
13 THE COURT: Mr. Headrick, would you stand up so that 
14 everyone will be able to hear you? 
15 VENIREPERSON HEADRICK: Yes, ma'am. I'm sorry. I'm 
16 sorry. 
17 THE COURT: I'm sorry that we don't have a mic for 
18 you. 
19 VENIREPERSON HEADRICK: Did you understand what I'm 
20 saying? 
21 MR. CRANE: Yeah. Would you require ten witnesses? 
22 VENIREPERSON HEADRICK: No. What I'm saying is: 
23 You know, since -- if it's -- if it's him and one other guy, 
24 and there's another guy or maybe two guys -- you know, I 
25 don't know all the details about those two guys. I don't 
243 
 1 know what those guys, whether they like him, whether they're 
2 just trying to get off because they did it, or whatever. 
3 There's no physical evidence telling me that he did it. Now 
4 if there's a crowd of people, that's a different -- 
5 MR. CRANE: What if there's not? 
6 VENIREPERSON HEADRICK: -- that's a different story. 
7 MR. CRANE: What if there's not? 
8 VENIREPERSON HEADRICK: In that instance -- 
9 MR. ROGERS: Your Honor, I'd like to object. I 
10 think we're -- 
11 THE COURT: Excuse me just a minute. 
12 MR. ROGERS: I'm making an objection. I think 
13 we're -- 
14 THE COURT: Hold on just a second. 
15 MR. ROGERS: I think we're getting to the point 
16 where we're seeking commitments from the juror, and I don't 
17 think that's proper. 
18 MR. CRANE: Yeah. All right. I'll back off of 
19 that. Yeah. 
20 THE COURT: You may withdraw that question. 
21 MR. CRANE: Yeah. I'll withdraw that question. 
22 Forget about that. Would you -- would your 
23 feelings, as you sit there right now, obviously you would 
24 really like to have some physical evidence at the scene. 
25 VENIREPERSON HEADRICK: Yes. 
244 
 1 MR. CRANE: Okay. And that would be something that 
2 you would have grave concerns about if you didn't have it. 
3 VENIREPERSON HEADRICK: What I'm saying: I don't 
4 know the details. I don't know how many people were there. 
5 I cannot say that at this point I have to have physical 
6 evidence, no. 
7 MR. CRANE: Okay. All right. Thanks. Appreciate 
8 it. 
9 Okay. Deliberation. In a murder one, in the 
10 event -- we go through this case, and you're assessing the 
11 elements of murder in the first degree. There's a particular 
12 element in that called deliberation. The principal 
13 difference between murder in the first degree and murder 
14 second degree is that element of deliberation. And I expect 
15 that you'll be instructed that deliberation means -- is 
16 defined as cool reflection on the matter, the matter of 
17 killing someone, for any period of time, no matter how brief. 
18 That's the legal definition. Cool reflection on the matter, 
19 for any period of time, no matter how brief. Okay? 
20 Now, did some of you think, Well, gosh, I thought 
21 murder in the first degree required planning. Go get gun, 
22 buy ammo, get gas to burn up get-away car. You know. 
23 Anybody think that? Planning seems to be something that 
24 people can think of. But under the law, it's cool reflection 
25 on the matter of killing somebody for any period of time no 
245 
 1 matter how brief. Regardless of what you thought it might 
2 be, is everybody okay with that as the legal definition? 
3 Okay. I take it by your silence that you are. 
4 Does anybody have any special training or interest 
5 in the fields of psychology, psychiatry, or human behavior? 
6 Nobody? 
7 Yes. Okay. You're doing the nursing thing. 
8 VENIREPERSON GIBBS: Yeah. I -- well, I took high 
9 school classes in psychology and sociology. 
10 MR. CRANE: Okay. 
11 VENIREPERSON GIBBS: I don't know if that counts. 
12 MR. CRANE: Sure. Could you set aside that -- not 
13 completely. You know, nobody's saying you got to shut the 
14 door on your past experiences, but would anything about that 
15 keep you from being fair and impartial in this case? 
16 VENIREPERSON GIBBS: Not that I can think of. 
17 MR. CRANE: Okay. Are you willing, all of you, 
18 willing to accept that psychologists may be mistaken in their 
19 diagnosis or may differ in their opinions? Everybody okay 
20 with that idea? That two psychologists may have a different 
21 view on the same person. Okay? 
22 Has anybody ever read any books by Dr. Elizabeth 
23 Loftus? The defense has indicated they may call Dr. Loftus 
24 in this case. Anybody read any books by her? Anybody ever 
25 heard of Dr. Elizabeth Loftus? L-o-f-t-u-s. 
246 
 1 A witness the state may call is Dr. Delaney Dean. 
2 Has anybody heard of Dr. Dean? I take it by your silence 
3 nobody's ever heard of those two psychologists. 
4 If there are psychologists who testify during this 
5 trial, will you all be willing to decide for yourself if 
6 their opinions are correct or incorrect? You'd be able to do 
7 that? Okay. 
8 Would you be able to reject an opinion if you didn't 
9 think it was right? Or are you going to go, "Well, a 
10 psychologist said it; I got to go with that"? Okay. 
11 Would you also be able to consider the testimony of 
12 a psychologist as you would any other witness? Gauge their 
13 testimony, listen to what they had to say, decide whether or 
14 not you wanted to adopt it? I take it by your silence you 
15 could all do that. 
16 I want to talk to you about memory. A little bit 
17 about memory. Stupid questions coming at you here now. It's 
18 going to make me sound stupid, not you. Okay? 
19 Could I see a show of hands of anybody who's ever 
20 forgotten anything. 
21 (Show of hands.) 
22 MR. CRANE: Looks like about everybody's hand. You 
23 forgot where you put your glasses. You forgot where you put 
24 your purse. Do you -- most of you, that everyday stuff, 
25 watch, glass, purse, try to put it in the same place when you 
247 
 1 go to bed? And you do that so that the next morning it's 
2 right there and you don't have to forget where it is and go 
3 hunting it down. Okay? And sometimes you lose them. 
4 Sometimes you can't find your glasses. And they're right 
5 there on your face. Some of you don't wear glasses, but I'll 
6 bet the people with glasses have maybe had that happen 
7 before. Okay? 
8 And when you find the thing you lost -- you forgot 
9 where it was, and when you find it, you remember you put it 
10 right there. Anybody had that experience? "Oh, man, that's 
11 where I left the glasses, right there." Or "I had them on my 
12 head. And I remembered when I found them." Everybody had 
13 that experience? Again, I'm not going to make you raise your 
14 hand. If you didn't raise your hand, if everybody's had that 
15 type of experience... I take it by your silence you have. 
16 Has anyone ever forgotten someone or something from 
17 your past, and then something triggered your memory and you 
18 remembered it again? Umm, you went to grade school with 
19 Billy Bob. And you forgot about Billy Bob. And somebody 
20 says, "You remember Billy Bob?" And you don't remember. And 
21 then you get shown your yearbook. Or a photo. And there you 
22 are, standing by Billy Bob. And you go, "Golly, that's the 
23 guy. I remember him now." Anybody had that type of 
24 experience? I take it by your silence that you have. You've 
25 had that type of experience. In other words, you forgot 
248 
 1 about Bill, but when you saw him again, you remembered. And 
2 it was a true fact, that you and Billy Bob went to school. I 
3 told you it was going to be kind of weird questions. 
4 Everybody had that type of experience? Okay. 
5 Is anyone unable to accept the idea that some people 
6 can experience a terrible, traumatic event and consciously 
7 put it out of their mind, and then later on remember it 
8 again? It comes back to them. That bad thing. 
9 Now I'm not necessarily asking, on that one, that 
10 things -- the other ones, where it happens to everybody type 
11 questions, this one I'm not asking, has it ever happened to 
12 you, you understand, but -- and listen to the way I'm asking 
13 that. Is anybody unable to accept the concept that somebody 
14 can have something bad, traumatic, happen to them, and 
15 consciously put it out of their memory, and then have it come 
16 back to them? Nobody is unable to accept that type of 
17 concept; correct? I mean, if you are, let me know. "Oh, 
18 heck, that don't happen." Let me know. 
19 Yes, sir. 
20 VENIREPERSON WAECHTER: Yes, it does. It happened 
21 to me. 
22 MR. CRANE: Well, it does happen. I'm trying -- it 
23 did happen to you. 
24 VENIREPERSON WAECHTER: Yes. 
25 MR. CRANE: And I'm -- again, I'm trying -- you 
249 
 1 know, I don't know what bad experiences, maybe you were in 
2 the army and, you know, something bad happened, something 
3 like that. But something you didn't want to remember, and 
4 then something made you think about it again. 
5 You're saying -- 
6 VENIREPERSON WAECHTER: You want me to tell you? 
7 MR. CRANE: No. No, I don't. Here's what I'm 
8 saying. My question is: You accept that that can happen. 
9 VENIREPERSON WAECHTER: Yes. 
10 MR. CRANE: Okay. 
11 And everybody else is okay with that concept as 
12 well? Okay. 
13 And I wasn't trying to cut you off. 
14 VENIREPERSON WAECHTER: No. That's fine. 
15 MR. CRANE: Okay. I appreciate that. 
16 All right. I take it by your silence that everybody 
17 is able to accept that. 
18 Has anybody had a dream where you dreamed something 
19 bad happened, or embarrassing, and you woke up and you went, 
20 "Golly, I can't believe I said that to her," or "I can't 
21 believe that I didn't get to that class and get that test 
22 taken. How could I have blown off that class all last 
23 semester?" Or "Why would I go to work naked? How come I did 
24 that?" For a while you wake up and you think, "This is 
25 terrible." And then you start to kind of wake up and you 
250 
 1 realize, "Well, wait a minute. I must have gotten through 
2 that class, because I've got this home and these kids, and 
3 I've got to go to work. And I'm not even in school any 
4 more." Or, you know, "Wait a minute. There's the clothes. 
5 I got clothes. I didn't go in to work naked." Everybody had 
6 that kind of experience? Think their dream for a little bit 
7 was reality? 
8 Let me ask it this way. Is there anybody in the 
9 room who's ever had such a dream, that you thought was real, 
10 but when you woke up, you went the rest of your life thinking 
11 that what you dreamed was real? I take it by your silence 
12 that no one, no one's had that experience. Did you 
13 understand my question? 
14 Ladies and gentlemen, is there anybody who has ever 
15 told your friends, relatives, the police, that you murdered 
16 somebody? I take it by your silence nobody's done that. Not 
17 a murder necessarily, but told your friends, your parents, 
18 and the police, "I murdered somebody." I take it by your 
19 silence nobody's done that. 
20 I also take it by your silence now that nobody has 
21 murdered anybody. Am I safe at that? I take it by your 
22 silence I am. 
23 Ladies and gentlemen, after being selected as a 
24 juror, you'll take an oath to follow the Court's 
25 instructions. They'll give you -- they're given to you by 
251 
 1 the Judge at the close of all the evidence. Again, they'll 
2 tell you what the law is, applicable to this case in the 
3 State of Missouri. 
4 General question: Is there anybody here who's going 
5 to be unable to follow the law, the Court's instructions, 
6 because of personal beliefs that the law is misguided or 
7 wrong or just shouldn't be written that way and "I'm not 
8 going to use that law; I'm going to use my own." Is 
9 everybody going to be able to follow the law? Accept what 
10 the Court tells you the law is and follow it. I take it by 
11 your silence you can all do that. 
12 Motive. Still on this theme of following the law. 
13 Does everybody understand that the law does not require the 
14 prosecution to prove why the defendant committed the offense 
15 for which he's charged. We talked about the physical 
16 evidence thing a minute ago. And you hear about motive all 
17 the time. "What was his motive?" Okay. Does everybody 
18 understand that motive, why someone did it, may be an issue 
19 that's discussed in a case, but it's not required on the 
20 issue of proof beyond a reasonable doubt. Does anybody 
21 think, "Well, gosh, it should be? I want to know why. And 
22 if I don't know why, I can't fairly consider whether or not 
23 he did it." Are you with me on that? Everybody okay with 
24 that question? I take it by your silence you can follow the 
25 law that motive is not required. 
252 
 1 Is any member on the panel bothered by the fact that 
2 jurors decide facts in a case? Even though both sides 
3 disagree. That's going to happen in this case. Both sides 
4 will disagree as to what those facts are. It's jurors who 
5 make the decisions. Anybody bothered by that fact? "I just 
6 don't want" -- we talked about that a little bit. "I don't 
7 want to be having to decide that." In other words, if one 
8 witness gets up and says, "The light was red at the time of 
9 the crash," and that's not in this case, just giving you an 
10 example, and another witness says, "No, at the time of the 
11 crash the light was green," the jury decides what color that 
12 light was. If it's an issue in the case. You follow me? 
13 Anybody uncomfortable with that idea? 
14 Anybody who thought of or discovered a pressing 
15 physical or personal problem as I've droned on here with you 
16 this morning that you want to tell us about that's going to 
17 cause you problems being fair and impartial in this case? 
18 Something you haven't thought of. Okay. 
19 I asked you that last question so that we can be 
20 assured, so that both sides can be assured that if you're a 
21 juror on this case, your attention will be focussed fully on 
22 the facts of this case. Because after it's over, if you're a 
23 juror, and you go back into that deliberation room to decide 
24 this case, you will be equipped only with what you've heard 
25 and seen and the exhibits in the case. So it's very 
253 
 1 important that you're all able to give your full, fair, and 
2 impartial attention. Other than those that have mentioned 
3 various things earlier, can the rest of you do that? 
4 Ladies and gentlemen, I sure do appreciate you 
5 bearing with me. 
6 Let me ask my assistant if I've got any more 
7 questions. 
8 (Discussion off the record between Mr. Crane and 
9 Mr. Knight.) 
10 MR. CRANE: I did have another one, but I'm going to 
11 quit. 
12 Thank you. 
13 THE COURT: Would counsel approach the bench just 
14 briefly? 
15 - - - 
16 Counsel approached the bench and the following 
17 proceedings were held: 
18 THE COURT: I'm assuming you have quite a few 
19 questions you want to ask this panel. 
20 MR. ROGERS: Yes. 
21 THE COURT: It is five minutes to 12. Would you 
22 rather ask those questions all at one time? Or would you 
23 want to start and maybe go 15, 20 minutes now, or half an 
24 hour now, and then pick up after lunch? 
25 MR. ROGERS: I wanted a break about an hour ago, but 
254 
 1 whatever the Court -- 
2 THE COURT: Well, no, I'm -- 
3 MR. ROGERS: -- prefers. 
4 THE COURT: -- I'm asking you. 
5 MR. ROGERS: I would anticipate it will take at 
6 least an hour, hour and a half. So we're not going to be 
7 able to start at 12:30 with the second panel if we need them 
8 anyway. 
9 THE COURT: Well, no, we wouldn't be able to start 
10 with that panel. 
11 MR. ROGERS: But I would just as soon we get started 
12 before we break. 
13 THE COURT: Pardon? 
14 MR. ROGERS: I would just as soon we get started 
15 before we go on break. 
16 THE COURT: Okay. 
17 MR. ROGERS: We did have an earlier -- 
18 THE COURT: We did have an earlier break. 
19 MR. CRANE: The earlier you break, the quicker they 
20 can get back. What difference does it make? 
21 MR. ROGERS: Let's break now. 
22 THE COURT: That would be my inclination. 
23 MR. ROGERS: I'm with you. I'm persuaded. 
24 THE COURT: All right. 
25 MR. ROGERS: Thank you. 
255 
 1 - - - 
2 The following proceedings were held in open court: 
3 THE COURT: Ladies and gentlemen, defense counsel 
4 has more than just a few questions to ask, as you might 
5 imagine. It's five minutes to 12. And what we were 
6 discussing is whether we should take a lunch break now, have 
7 you come back, say, in an hour, and conclude the questioning, 
8 or proceed at least through part of it. We've decided to 
9 take a lunch break, but not a very long one now. 
10 The Court again reminds you of what you were told at 
11 the first recess of the Court. Until you retire to consider 
12 your verdict, you must not discuss this case among yourselves 
13 or with others, or permit anyone to discuss it in your 
14 hearing. You should not form or express any opinion about 
15 the case until it is finally given to you to decide. Do not 
16 read, view, or listen to any newspaper, radio, or television 
17 report of the trial. 
18 I'm going to allow our bailiff here to instruct you 
19 about where you need to go when you come back. I will give 
20 you -- if you would come back about ten minutes to one, we'll 
21 take up at that time. 
22 You may eat with whomever you choose or wherever you 
23 choose, but you may not discuss this case when you're in 
24 recess. And follow the Court's instructions. 
25 So we will be in recess, but our bailiff here will 
256 
 1 give you instructions about where to appear. 
2 BAILIFF BOEDEKER: Just come back up to that room 
3 when you come back in. 
4 - - - 
5 The following proceedings were held out of the presence 
6 of the jury: 
7 (Mr. Crane not present in the courtroom.) 
8 THE COURT: If we could close the door when the 
9 jurors leave. I want to just, before counsel -- did 
10 Mr. Crane leave? 
11 MR. ROGERS: Yeah. The state's gone. 
12 MS. MARSDEN: I'll get him. 
13 THE COURT: Would you get him? 
14 I just wanted to give you some idea of people that 
15 I'm going to excuse, that I think either have a hardship or 
16 some other reason. Just so that, in tailoring your 
17 questions, if you felt they should be excused for cause or 
18 otherwise excused, you needn't go into that in such great 
19 details. But we'll wait for Mr. Crane to come. 
20 (Mr. Crane present in the courtroom.) 
21 MR. CRANE: Sorry, Judge. I didn't know you -- 
22 THE COURT: I was just going to go over some 
23 individuals that I intended to excuse for either hardship or 
24 reasons that they'd stated. And I certainly will hear from 
25 anyone who disagrees with that. And I thought it might 
257 
 1 expedite things, particularly -- 
2 MR. CRANE: I wish I could get my peeps in here. 
3 THE COURT: Your peeps? 
4 MR. CRANE: Yeah. 
5 THE COURT: Do you have your -- 
6 MR. CRANE: Hey, would you -- no, I'm kidding. 
7 She's wanting to look at some strikes. 
8 THE COURT: Well, I mean, they're not strikes. They 
9 would be excuses. Although I probably won't excuse them 
10 until the end of the jury. 
11 Number 11 and 12. 15. Let's see. I put their 
12 names. 
13 MR. CRANE: Yeah. Brininger. What do you want? 
14 Were you looking for their names? 
15 THE COURT: No. I'm going on to furthers. I -- the 
16 last I said was Declue, which was 15. 
17 MR. CRANE: Yeah. 
18 THE COURT: Thomas, who is Number -- 
19 MR. ROGERS: 29? 
20 THE COURT: -- 29. Number 31, Mr. Black. Number 
21 33, Miss McCullough. 
22 MR. CRANE: Okay. Wait a minute. Black. 
23 MR. ROGERS: I think we need to talk to her some 
24 more. 
25 THE COURT: Okay. That's fine. 
258 
 1 MR. CRANE: Now wait a minute. Now wait a minute. 
2 31 and 33? 
3 THE COURT: 31 -- let's see. 31 -- let's see. 
4 There was 29, 31. And then Mr. Rogers wanted to speak with 
5 Miss McCullough more. I'm not saying they are excused. 
6 Those are the ones I'm inclined to excuse. And I can tell 
7 you -- 
8 MR. CRANE: I think she's going to ask if we agree 
9 with any of these. If you don't, she's not going to kick 
10 them. 
11 MR. ROGERS: Basically what she's I think going to 
12 tell us is: Don't waste time on these people if you can 
13 avoid it. 
14 THE COURT: Well, that was my basis. For example -- 
15 and I'll tell you, Miss McCullough was someone who said she 
16 can't afford to work because she didn't get paid. 
17 MR. ROGERS: Well, what she said was: She didn't 
18 know whether or not she got paid. 
19 MR. CRANE: Yeah, you know, Judge, I tell you, 
20 there's several of them that -- 
21 THE COURT: Okay. 
22 MR. CRANE: I'm with you. I'm with you. 
23 THE COURT: I'm just telling the ones I'm inclined 
24 to. 
25 MR. CRANE: Yeah. 
259 
 1 THE COURT: I'm not excusing them now. They will 
2 all come back. 
3 MR. ROGERS: Fair enough. 
4 THE COURT: Let's see if there was some on the last 
5 page of this that I thought I would be inclined to excuse. 
6 Joan Bennett, who is Number -- 
7 MR. ROGERS: 43. 
8 THE COURT: -- 43. She's the one that takes care of 
9 the grandkid. Mr. Riney is gone. And Mr. Straughter, 
10 S-t-r-a-u-g-h-t-e-r -- 
11 MR. CRANE: He's in a jam. You're talking hardship 
12 with him. 
13 THE COURT: With him with hardship. I'm just 
14 telling you the ones I'm inclined to excuse. 
15 MR. ROGERS: Your Honor, I'm not -- 
16 THE COURT: I'm not excusing -- 
17 MR. CRANE: Do you -- also, do you want, if there's 
18 any of them that you want to let go now, do you want -- 
19 THE COURT: I don't -- I don't want to let them go 
20 now. 
21 MR. CRANE: Okay. 
22 MR. ROGERS: And that tips the others off, so. 
23 THE COURT: That's right. And there's no one whose 
24 situation is critical. It's not like "My mother-in-law is 
25 dying in the hospital, and I want to be there when she 
260 
 1 breathes her last." There's no one that said something like 
2 that. 
3 MR. CRANE: I don't know. I might be able to push 
4 that far on some of them. 
5 THE COURT: Well, anyway. I just wanted to give you 
6 that heads up. And we'll see you -- did I say ten to 1? 
7 MR. CRANE: Very good, Judge. 
8 THE COURT: All right. 
9 MR. ROGERS: Thank you, Your Honor. 
10 THE COURT: We'll see you at that time then. 
11 We'll be in recess. 
12 (Recess taken.) 
13 - - - 
14 The following proceedings were held out of the presence 
15 of the jury: 
16 THE COURT: State ready to proceed? 
17 MR. CRANE: I'm sorry? 
18 THE COURT: Did I wake you from your afternoon nap? 
19 MR. CRANE: I was dreaming. Yeah, I'm ready, Judge. 
20 THE COURT: Hopefully you don't think it's reality. 
21 Is the defense ready to proceed? 
22 MR. ROGERS: As long as I'm not naked. We're ready, 
23 Your Honor. 
24 THE COURT: You may return the jurors to the 
25 courtroom, please. 
261 
 1 - - - 
2 The following proceedings were held in the presence of 
3 the jury: 
4 THE COURT: Do we have everyone back? 
5 BAILIFF BOEDEKER: I hope so. 
6 THE COURT: Well, perhaps we should call their names 
7 to make sure that we have them all. 
8 Does the circuit clerk have the names of the jurors 
9 that should be here? 
10 CIRCUIT CLERK HOUSTON: I do. 
11 THE COURT: Okay. 
12 CIRCUIT CLERK HOUSTON: If I can find my list here. 
13 (Roll call by Melba Houston, Circuit Clerk.) 
14 THE COURT: Miss Schisler, you had indicated you 
15 might call to see if there might be someone that your 
16 daughter could stay with if you happened to be selected. Are 
17 there some friends that she could stay with? 
18 VENIREPERSON SCHISLER: Yes. 
19 THE COURT: Thank you so much. 
20 VENIREPERSON SCHISLER: Could I also add, though, 
21 that -- I know you said this is supposed to only last a week. 
22 THE COURT: Yes. 
23 VENIREPERSON SCHISLER: But like on the 25th I have 
24 to run my daughter to Louisville, Kentucky, for FFA. 
25 THE COURT: You have to run her to where? 
262 
 1 VENIREPERSON SCHISLER: To Kentucky, for FFA 
2 national convention. 
3 THE COURT: You will be able to do that. 
4 VENIREPERSON SCHISLER: Okay. 
5 THE COURT: Thank you. 
6 Defense counsel may have questions for you. 
7 MR. ROGERS: Thank you, Your Honor. 
8 - - - 
9 VOIR DIRE EXAMINATION 
10 BY MR. ROGERS: 
11 Good afternoon. It's been a while. Let me 
12 reintroduce myself. My name is Charlie Rogers. And Jeremy 
13 Weis, has the matching hairstyle, he and I practice law in 
14 Kansas City with a firm called Wyrsch, Hobbs, and Mirakian. 
15 Also representing Mr. Ferguson in this case is Kathryn 
16 Benson, who practices law in Columbia with a firm called 
17 Batek and Benson. And our client is Ryan Ferguson. Okay. 
18 Also assisting us during this trial is Michelle Dorrance. 
19 She is a paralegal with our law firm. 
20 Now that you've seen us for it seems like a long 
21 time, is there anybody here who thinks you know any of 
22 Mr. Ferguson's defense team? I don't see any hands, so I'm 
23 assuming that the answer is no. 
24 Ryan Ferguson lives in Columbia, Missouri, with his 
25 parents, who are also present in the courtroom. His father, 
263 
 1 Bill Ferguson. 
2 Would you stand, please. 
3 And his mother, Leslie Ferguson. Bill is a real 
4 estate agent; Leslie is a teacher, a reading specialist with 
5 the Columbia school system. 
6 Is there anybody who thinks you might know Ryan 
7 Ferguson or any of his family? Okay. I don't see any hands, 
8 so I assume once again the answer is no. 
9 I'm going to ask a lot of questions. Some of them 
10 may sound like questions you've heard from the Judge or from 
11 the prosecutor. I'm not intending to be repetitious. And I 
12 certainly don't intend to waste any time. But they are 
13 questions that I think I need answers to, the way I'm going 
14 to ask them, that I may not have heard when they were asked a 
15 different way. 
16 The other thing that I need to tell you is that in 
17 many cases questions that I ask are things that would 
18 normally be none of my business. And that you would have no 
19 reason to tell me. But in this situation, we are picking 12 
20 people who will decide whether or not Ryan Ferguson ever sees 
21 the unfettered light of day again. And therefore, we have to 
22 know as much as we can, to get the 12 people who are best for 
23 this particular case. And so, therefore, I'm going to 
24 apologize in advance if you think I'm being unduly intrusive. 
25 I don't intend to be. But it's a serious job and it's a 
264 
 1 serious matter, and we need the information to make the 
2 choices that we have to make. 
3 So basically I will assure you at that if you give 
4 me good, accurate answers to my questions, I will not in any 
5 way attempt to deceive or mislead or trick anybody. 
6 And I also want to stress that there are no right 
7 and wrong answers to these questions. A right answer is a 
8 truthful answer. An answer that tells us information that we 
9 can use. A wrong answer is an answer that does not tell us 
10 what we need to know when it's there to be known. Okay? 
11 Now, I said I wasn't going to be tricky or 
12 deceitful, but I will start out the questioning with a quiz, 
13 if you will. I used to have a teacher in high school who 
14 used to come in on Monday morning and give a little pop quiz 
15 to see if you were paying attention Friday -- in Friday 
16 morning's class. And so this is a pop quiz to see if you 
17 were paying attention, listening, and thinking about things 
18 that you were told earlier today here in this courtroom. 
19 And the question is: First of all, I'd like to see 
20 a show of hands, how many people have a presumption right now 
21 as to whether Ryan Ferguson is guilty or not guilty of the 
22 murder of Kent Heitholt? How many have a presumption? 
23 (One hand.) 
24 MR. ROGERS: Mr. Straughter. You have a 
25 presumption. What is your presumption? 
265 
 1 VENIREPERSON STRAUGHTER: You asked me. I stood up. 
2 Yes, I do. 
3 MR. ROGERS: Yes. What is your presumption? 
4 VENIREPERSON STRAUGHTER: That he's guilty. 
5 MR. ROGERS: Okay. And that's because based on what 
6 Mr. Crane told you about the plea bargain -- 
7 VENIREPERSON STRAUGHTER: Right. 
8 MR. ROGERS: -- of the codefendant. Okay. So -- 
9 and you have already told us about that. And nothing that 
10 you were told before that question was asked -- or after that 
11 question has been asked has changed that in your mind. Is 
12 that a fair statement? 
13 VENIREPERSON STRAUGHTER: That's fair. 
14 MR. ROGERS: Okay. Thank you. 
15 Anybody else have a presumption? Okay. See, if I 
16 were grading the pop quiz, I would be wondering whether you 
17 were thinking about what Judge Roper told you or about what 
18 Mr. Crane talked about, because they both told you that 
19 Mr. Ferguson is presumed to be innocent. Okay? Everybody 
20 remember that, now that I say it? See hands of people who 
21 now remember hearing that. 
22 (Show of hands.) 
23 MR. ROGERS: Okay. All right. So when you heard 
24 that, then it appears to me that maybe you weren't 
25 internalizing that. You weren't thinking, Well, wait a 
266 
 1 minute, if he's presumed to be innocent, and I'm here seeing 
2 whether or not I'm going to be on the jury, maybe I should be 
3 presuming him to be innocent. Okay? How many people, now 
4 that I've said that, think that it is your job as jurors at 
5 this stage of the trial to presume that Mr. Ferguson is 
6 innocent? 
7 (Show of hands.) 
8 MR. ROGERS: Okay. And now I'm going to pick on 
9 somebody who didn't raise his hand. 
10 And since you are close, sir, Juror Number 4, 
11 Mr. Clark, why not? 
12 VENIREPERSON CLARK: I haven't heard all the facts 
13 yet. 
14 MR. ROGERS: Okay. And let me then go back to my 
15 pop quiz and remind you of something that Mr. Crane stressed, 
16 which is: You haven't heard, not only all the evidence, but 
17 you haven't heard anything; correct? 
18 VENIREPERSON CLARK: Yes. 
19 MR. ROGERS: Okay. Mr. Ferguson is presumed to be 
20 innocent throughout the jury. And it is the job of the jury 
21 to -- as a juror, as an individual, and a jury as a group, to 
22 keep that presumption and to take that presumption with them 
23 into the jury room after they've heard all the facts and then 
24 talk about the facts and see whether or not there has been 
25 enough shown by the other side to overcome that presumption. 
267 
 1 Do you understand that, sir? Are you agreeing with me on 
2 that? 
3 VENIREPERSON CLARK: Yes. 
4 MR. ROGERS: Okay. So, given that, since you 
5 haven't heard all the facts, in fact you haven't heard any of 
6 the facts, would you now agree that it is your job to presume 
7 that Mr. Ferguson is innocent? 
8 VENIREPERSON CLARK: Yes. 
9 MR. ROGERS: Okay. And are -- now that I've 
10 explained it, are you doing it? 
11 VENIREPERSON CLARK: To my knowledge, yes. 
12 MR. ROGERS: Okay. Good enough. That's all you can 
13 answer, is what you know. So, given that, you are now able 
14 to give Mr. Ferguson the full benefit of the presumption of 
15 innocence. 
16 VENIREPERSON CLARK: Yes. 
17 MR. ROGERS: Okay. Now that I have had my 
18 conversation with Mr. Clark -- 
19 THE COURT: There is a hand. 
20 MR. ROGERS: Oh, another hand. 
21 VENIREPERSON KELLY: Could I have you scoot over 
22 just a little bit? Thank you so much. 
23 MR. ROGERS: Thank you. I've never been a preacher, 
24 but this must be what it feels like. 
25 All right. And just for the record, you're 
268 
 1 Miss Kelly; is that correct? 
2 VENIREPERSON KELLY: Yes. 
3 MR. ROGERS: Number 42. 
4 VENIREPERSON KELLY: Yes. 
5 MR. ROGERS: Now that I've had my conversation with 
6 Mr. Clark, I would again like to see a show of hands of those 
7 people who are right now actively giving Mr. Ferguson the 
8 benefit of the presumption of innocence. 
9 (Show of hands.) 
10 MR. ROGERS: Mr. Robinson, you didn't have your hand 
11 up. 
12 VENIREPERSON ROBINSON: I don't presume anything 
13 until I find out something. I don't say he's guilty or not 
14 guilty. 
15 MR. ROGERS: And that's -- my whole point here is 
16 that that sounds like a fair way to be. That is, in a sense, 
17 impartial. And you heard the "words fair and impartial" a 
18 lot. But in the context of this case and the criminal law 
19 and the Constitution of the United States and the way it's 
20 been developed in our justice system, when somebody is 
21 accused of a crime, for a juror to be fair to that person, 
22 that juror has to give them the benefit of the presumption of 
23 innocence. And that means that juror has to presume that 
24 they're innocent throughout the course of the trial. Before 
25 they hear any evidence, while they're hearing the 
269 
 1 prosecutor's evidence, while they're hearing the defense 
2 evidence, while they're hearing the instructions of law from 
3 the Judge, while the lawyers are making their closing 
4 arguments. And then they go in the jury room and then they 
5 decide whether the prosecution has overcome the presumption. 
6 But the presumption has to be there from start to -- almost 
7 to finish. Okay? Do you understand that? 
8 VENIREPERSON ROBINSON: (Nodding head up and down.) 
9 MR. ROGERS: You have to answer out loud. I'm 
10 sorry. 
11 VENIREPERSON ROBINSON: Yes. 
12 MR. ROGERS: Because she can't take down a nod of 
13 the head. And understanding that, are you having trouble 
14 doing that? 
15 VENIREPERSON ROBINSON: Yes. 
16 MR. ROGERS: Okay. And why? 
17 VENIREPERSON ROBINSON: I don't know. I just -- I 
18 don't know the facts and I don't want to try to create 
19 something in my head that shouldn't be there. 
20 MR. ROGERS: Okay. 
21 VENIREPERSON ROBINSON: So, until I know something 
22 that's going on, I'm not going to presume anything. 
23 MR. ROGERS: Okay. 
24 VENIREPERSON ROBINSON: Or assume anything, I should 
25 say. 
270 
 1 MR. ROGERS: There's a difference between assuming 
2 and presuming. Okay? Maybe that's the problem here. 
3 Because I don't want you to assume anything. But I not only 
4 want, but need and require you to presume that Mr. Ferguson 
5 is innocent. And that is something in your head that should 
6 be there. And must be there if you're going to do your duty 
7 as a juror, in terms of the instruction Judge Roper has 
8 already read to you, which you'll hear again at the end of 
9 the case. And I'm kind of floundering here, wondering what I 
10 can say to communicate that to you in a way that you will 
11 accept it and internalize it and agree to do it. Answer me, 
12 if you can. 
13 VENIREPERSON ROBINSON: I guess I can accept it. I 
14 mean -- 
15 MR. ROGERS: Okay. Would -- knowing that the Judge 
16 has said that you have to do that, are you willing to do 
17 that? 
18 VENIREPERSON ROBINSON: Yes. 
19 MR. ROGERS: Okay. So you understand it's not 
20 something that shouldn't be in your head. It's not something 
21 that makes you unfair. It's something that should be in your 
22 head to make you fair. 
23 VENIREPERSON ROBINSON: Okay. 
24 MR. ROGERS: Okay. Fair enough. 
25 And Mr. Brown. You didn't raise your hand either. 
271 
 1 VENIREPERSON BROWN: Correct. 
2 MR. ROGERS: Why was that? 
3 VENIREPERSON BROWN: Well, I feel there's got to be 
4 some reason why the young man was brought here. They just 
5 don't pick a person off of a street, just an innocent person, 
6 and just bring them in, say, "Well, I think we're going to 
7 try you for this or that." So I got to believe there could 
8 be just a smidgeon of guilt. I can listen to both sides of 
9 the story and give an unbiased opinion about my feelings 
10 toward that, but to give -- to say he is 100 percent 
11 innocent, or guilty, either one, I could not say that at this 
12 period of time. 
13 MR. ROGERS: And once again, we may just be talking 
14 about semantics, but... You're not required to conclude that 
15 he is 100 percent guilty, but you are required to presume 
16 that he is. And in fact, the Judge has told you, and 
17 Mr. Crane I think said in almost the same words, that the 
18 charge of an offense is not evidence. And it creates no 
19 inference or presumption that any offense was even committed, 
20 or that this defendant committed any offense. 
21 Now, knowing that, and knowing that that's the law 
22 that you would be sworn to follow as a juror, could you 
23 follow that law? 
24 VENIREPERSON BROWN: I could -- I could honestly say 
25 that I think this man is 98 percent innocent right at this 
272 
 1 moment, but there's got to be a reason that he was brought 
2 here. 
3 MR. ROGERS: Okay. But what I'm saying is: Having 
4 been told that you cannot use that belief that you have as 
5 any type of evidence, or to infer any guilt, can you set it 
6 aside and give him the benefit of the presumption of 
7 innocence in terms of what they have to prove to prove that 
8 he's guilty? 
9 VENIREPERSON BROWN: As far as to infer that there's 
10 any guilt there, yeah, I could set that aside. 
11 MR. ROGERS: Okay. Even the 2 percent. 
12 VENIREPERSON BROWN: Uh-huh. 
13 MR. ROGERS: So you can -- even though you're not 
14 concluding that he's a hundred percent innocent, if you had 
15 to vote right now, that's the way you'd have to vote, is not 
16 guilty; right? 
17 VENIREPERSON BROWN: Right now. 
18 MR. ROGERS: Okay. And if you were not persuaded 
19 beyond a reasonable doubt by evidence in court that he had 
20 been proven guilty, that's the way you'd vote at the end of 
21 the case too. 
22 VENIREPERSON BROWN: After I heard both sides of the 
23 story, I could give an honest opinion about it. 
24 MR. ROGERS: Okay. Let me -- but the answer you 
25 gave maybe didn't reflect the question I asked, so let me 
273 
 1 clarify more. I'm not trying to pick on you, but this is 
2 important stuff, as you know. 
3 At the conclusion of the case, would the opinion 
4 that you rendered, in the form of a verdict, be an opinion as 
5 to whether or not you believed Mr. Ferguson was guilty or not 
6 guilty, or would it be an opinion as to whether or not you 
7 believed the state had proven its case beyond a reasonable 
8 doubt? 
9 VENIREPERSON BROWN: I would say that I could base 
10 my opinion upon that there was no reason of doubt there 
11 whatsoever. That he was guilty or innocent. 
12 MR. ROGERS: But you understand that if there is a 
13 reasonable doubt, what would your verdict be? 
14 VENIREPERSON BROWN: If there was a doubt, he'd have 
15 to be innocent. 
16 MR. ROGERS: Okay. We're tracking finally. Okay. 
17 And with that explanation, and having -- and I appreciate the 
18 fact that you shared with me your concerns about he wasn't 
19 picked at random to be here, but with that understanding, can 
20 you, if selected on this jury, give Mr. Ferguson the benefit 
21 of the presumption of innocence? 
22 VENIREPERSON BROWN: Uh-huh. 
23 MR. ROGERS: And are you doing that now, at this 
24 stage, now that we've talked so much about it? 
25 VENIREPERSON BROWN: I'm telling just like I told 
274 
 1 you a while ago. Right now I feel 98 percent. I mean, I 
2 can't say a hundred percent he's innocent right now. I'm 
3 sorry. I just can't do that. 
4 MR. ROGERS: All right. 
5 VENIREPERSON BROWN: It's just like if you got a cop 
6 gets a guy speeding down the highway, or there's just an 
7 individual that's driving down the highway, and he picked him 
8 just because "I want to pick him." Well, to me, if he got 
9 the guy speeding down the highway, he's guilty of speeding. 
10 You just don't pick a guy off the highway and say he's 
11 innocent or guilty. 
12 MR. ROGERS: We'll talk about credibility after a 
13 while. Okay? But yeah. What I'm saying is -- what I'm 
14 asking is: Are you now -- 
15 VENIREPERSON BROWN: I can set that aside. 
16 MR. ROGERS: You can set that aside and use that 
17 legal principle of the presumption of innocence to set that 
18 aside and give Mr. Ferguson the presumption of innocence 
19 right now and throughout the trial. 
20 VENIREPERSON BROWN: Based upon what I hear, yes. 
21 MR. ROGERS: Okay. Thank you. 
22 All right. Now, let me see one more time a show of 
23 hands on everybody who is right now, in this courtroom today, 
24 giving Ryan Ferguson the full benefit of the presumption of 
25 innocence. 
275 
 1 (Show of hands.) 
2 MR. ROGERS: Thank you. 
3 Now, I'm having trouble seeing the entire courtroom. 
4 Is there anybody other than Mr. Straughter who did not raise 
5 their hand? Miss Delk? Did you raise your hand the last 
6 time? 
7 VENIREPERSON DELK: (Nodding head up and down.) 
8 MR. ROGERS: Okay. I couldn't see it. Thank you. 
9 THE COURT: Was that a yes? 
10 VENIREPERSON DELK: Yes. 
11 THE COURT: Thank you. She shook her head up and 
12 down. I assume she meant yes. 
13 MR. ROGERS: Thank you. 
14 Okay. Now, talking about presumption of innocence, 
15 we also necessarily talk about the burden of proof. And in 
16 this case, the burden of proof is the highest burden known to 
17 our justice system. And that is proof beyond a reasonable 
18 doubt. 
19 Is there anybody here who thinks that's too high a 
20 burden to place on the prosecution, on the government, on the 
21 State of Missouri, in a case like this? Where somebody's 
22 dead. Don't you think we ought to cut it back a little? You 
23 want to think about that? Okay. I see no hands. So I'm 
24 assuming from that that everybody here not only is presuming 
25 Mr. Ferguson to be innocent, but will also hold the state to 
276 
 1 their burden of proof, beyond a reasonable doubt. 
2 Now when Mr. Crane was talking about that, he talked 
3 about elements of the offense. And I want to make something 
4 clear. The state has the burden of proof, beyond a 
5 reasonable doubt, of each and every element of the offense. 
6 That's exactly correct. But that just proves that the 
7 offense occurred. They also have the burden of proving 
8 beyond a reasonable doubt that this kid right here committed 
9 the offense. 
10 And in that regard, if you have a reasonable doubt 
11 as to something that bears on whether or not he committed the 
12 offense, even though it may not be an element of the offense, 
13 and even though they showed that the offense occurred, that 
14 still would be a reasonable doubt touching upon the guilt of 
15 the defendant, and you'd have a burden -- have the 
16 responsibility of finding the defendant not guilty. Is there 
17 anybody who doesn't understand that? 
18 Let me shift gears a little bit here and ask an easy 
19 question. How many of you know other people on the jury 
20 panel from before you came to court today? 
21 (Show of hands.) 
22 MR. ROGERS: Okay. What I'm going to do is 
23 basically ask who you know and where you know them from. And 
24 if they've already said they know you, and where from, and 
25 there's nothing more to add that you know somebody else, then 
277 
 1 you can put your hands down. 
2 We'll start with you, Mr. Brown. You're in the 
3 first row here. Who do you know? 
4 VENIREPERSON BROWN: Let's see. I know Roy Waechter 
5 sitting on the end over here. 
6 MR. ROGERS: Okay. 
7 VENIREPERSON BROWN: That's the only one in the 
8 first row that I know. 
9 MR. ROGERS: Okay. Who else? 
10 VENIREPERSON BROWN: Second row, I know Chris 
11 Kaimann, setting over here. 
12 MR. ROGERS: How do you know Mr. Waechter, first of 
13 all? 
14 VENIREPERSON BROWN: Well, he's been in business in 
15 Troy for a long time and I've bought things from him in the 
16 past. 
17 MR. ROGERS: Okay. And how about Mr. Kaimann? 
18 VENIREPERSON BROWN: Mr. Kaimann lives about two 
19 miles from me. 
20 MR. ROGERS: Okay. Who else? 
21 VENIREPERSON BROWN: Mel Burkemper. 
22 MR. ROGERS: How do you know Mr. Burkemper? 
23 VENIREPERSON BROWN: Grew up with him. He lived 
24 just -- in my same neighborhood. 
25 MR. ROGERS: Okay. 
278 
 1 VENIREPERSON BROWN: This next lady here was a 
2 business acquaintance years ago. I dealt with her husband 
3 and knew her through her husband. 
4 MR. ROGERS: And for the record, the next lady is 
5 Deborah Caviness; is that correct? 
6 VENIREPERSON BROWN: That is correct. 
7 MR. ROGERS: Okay. 
8 VENIREPERSON BROWN: As a business person, I know 
9 Mr. Norton. I haven't dealt with him, but I do know him. I 
10 know Mr. Runge back there. 
11 MR. ROGERS: And how do you know him? 
12 VENIREPERSON BROWN: He lives in the same 
13 neighborhood as I do. 
14 MR. ROGERS: Okay. 
15 VENIREPERSON BROWN: Back here in the back, I grew 
16 up with her and their family, living in the same 
17 neighborhood. 
18 MR. ROGERS: Is that Mrs. Delk? 
19 VENIREPERSON BROWN: Yes. 
20 MR. ROGERS: All right. 
21 VENIREPERSON BROWN: Who else knows me back here? 
22 MR. ROGERS: All right. 
23 VENIREPERSON BROWN: This lady over here, I've dealt 
24 with her. Mark Krieg, sitting back here, I know him. 
25 MR. ROGERS: When you say "this lady," you're 
279 
 1 meaning Mrs. Fields? 
2 THE COURT: I'm sorry? I can't hear whom you're 
3 talking about. Pardon me. We can't hear the juror that 
4 you're referring to. So we wouldn't know which one he knows. 
5 MR. ROGERS: Okay. Mrs. Donna Fields? Is that who 
6 you -- 
7 THE COURT: That was the one we missed. Juror 
8 Number 52. Thank you. 
9 VENIREPERSON BROWN: And Mr. Craig. I know him. 
10 I've known him for many years. Lives in the same 
11 neighborhood as I do also. 
12 MR. ROGERS: All right. And I will now tell 
13 everybody who Mr. Brown has identified, and it was convenient 
14 to start with him, because he's in the business of knowing 
15 people, you being an insurance agent and all; right? So, if 
16 he's already talked about knowing you, you don't have to 
17 raise your hand any more about that, unless there's something 
18 you want -- think that needs to be clarified. Okay. 
19 Anybody else on this front row over here who knows 
20 somebody else here in the courtroom? 
21 Yes, sir. Mr. Robinson. 
22 VENIREPERSON ROBINSON: I know Tony Runge. Played 
23 basketball against him in high school. I know Eldora Day. I 
24 played ball with her son and that. We live in the same town. 
25 MR. ROGERS: Okay. And does that pretty much sum it 
280 
 1 up? 
2 VENIREPERSON ROBINSON: (Nodding head up and down.) 
3 MR. ROGERS: Anybody else in the front row? 
4 Yes, sir. 
5 VENIREPERSON GALES: Courtroom or jury? 
6 MR. ROGERS: No. Let me get back to you in a little 
7 bit, Mr. Gales. Mr. Clark had his hand up first. 
8 VENIREPERSON GALES: I'm sorry. 
9 MR. ROGERS: I -- the question was the jury panel. 
10 VENIREPERSON GALES: That's what I thought. 
11 MR. ROGERS: Okay. 
12 VENIREPERSON CLARK: I know Mike Gaines. I think 
13 he's Juror 51. 
14 MR. ROGERS: Yes, he is. Mr. Gaines. And how do 
15 you know each other? 
16 VENIREPERSON CLARK: We went to church together. 
17 MR. ROGERS: And what church is that? 
18 VENIREPERSON CLARK: Baptist church. 
19 MR. ROGERS: Okay. Now, Mr. Gales, you don't any of 
20 the other prospective jurors? 
21 VENIREPERSON GALES: No. 
22 MR. ROGERS: But you do know other court personnel? 
23 VENIREPERSON GALES: One. 
24 MR. ROGERS: Okay. Fair enough. 
25 Okay. Now front row on this side. 
281 
 1 Yes. Miss Pund? 
2 VENIREPERSON PUND: I know Chris Kaimann. We went 
3 to school together. And Linda in the back. 
4 MR. ROGERS: Linda Delk? 
5 VENIREPERSON PUND: Just friends. 
6 MR. ROGERS: Okay. 
7 Yes, ma'am. 
8 VENIREPERSON SCHUPMANN: I know Roy Waechter. 
9 MR. ROGERS: Okay. And you -- other than the two 
10 people, Mr. Waechter, who already mentioned knowing you -- 
11 VENIREPERSON WAECHTER: I really don't know. 
12 They're talking about me, and I don't know them. 
13 MR. ROGERS: Because you see people come in and out. 
14 All right. Fair enough. 
15 Okay. Second row over here. Anybody who has not 
16 already been talked about as knowing somebody who knows 
17 somebody? 
18 Mr. Norton? 
19 VENIREPERSON NORTON: I worked with Juror 41. 
20 MR. ROGERS: Juror 41 is Mr. -- 
21 VENIREPERSON NORTON: Skirvin. 
22 MR. ROGERS: -- Skirvin? Okay. And you don't work 
23 together any more? 
24 VENIREPERSON NORTON: No. No, sir. 
25 MR. ROGERS: Thank you. 
282 
 1 And Mr. Declue? 
2 VENIREPERSON DECLUE: I know Juror 31. Just 
3 friends. 
4 MR. ROGERS: And that is the -- Mr. Black? Is that 
5 correct? 
6 VENIREPERSON DECLUE: Yes, sir. 
7 MR. ROGERS: Okay. Thank you. 
8 And Miss Caviness? 
9 VENIREPERSON CAVINESS: Mark Krieg. Personal 
10 friend. 
11 MR. ROGERS: And that's Juror 40 behind you. 
12 Yes, sir. 
13 VENIREPERSON BURKEMPER: I know pretty well all the 
14 people that Ron Brown mentioned, just because they're all in 
15 the same community. 
16 MR. ROGERS: Okay. You're Mr. Burkemper; correct? 
17 VENIREPERSON BURKEMPER: (Nodding head up and down.) 
18 MR. ROGERS: So the people who live in the same 
19 neighborhood or community, you also know. 
20 VENIREPERSON BURKEMPER: Right. 
21 MR. ROGERS: Okay. 
22 Anybody else on the second row over here? Second 
23 row on this side? 
24 Start here. Mr. Kaimann? 
25 VENIREPERSON KAIMANN: Pretty well everybody that 
283 
 1 Ron Brown mentioned. 
2 MR. ROGERS: Okay. And Mr. Burkemper too; right? 
3 VENIREPERSON KAIMANN: Yes. 
4 MR. ROGERS: Fair enough. 
5 Anybody else? 
6 Yes, ma'am. 
7 VENIREPERSON IEPPERT: Roy Waechter. 
8 MR. ROGERS: And for the record, you're Carol 
9 Ieppert? 
10 VENIREPERSON IEPPERT: Ieppert. 
11 MR. ROGERS: And you know Mr. Waechter. 
12 VENIREPERSON IEPPERT: Yes. 
13 MR. ROGERS: All right. 
14 Mr. Gibbs? 
15 VENIREPERSON GIBBS: I know John Skirvin and Doran 
16 Black. We went to the same school. 
17 MR. ROGERS: Miss Thomas? 
18 VENIREPERSON LAURA THOMAS: I know William Daniel 
19 Thomas. He's my son. And I go to church with Mr. Gaines. 
20 MR. ROGERS: So mother and son team here? All 
21 right. What church is that? 
22 VENIREPERSON LAURA THOMAS: First Baptist Church. 
23 MR. ROGERS: Okay. Thank you. 
24 Third row here? 
25 VENIREPERSON OHMERT: I know Charlie. We work 
284 
 1 together. 
2 MR. ROGERS: Mr. Ohmert? 
3 VENIREPERSON OHMERT: Yes. I know Charlie. 
4 MR. ROGERS: And when you say "Charlie," you mean 
5 Mr. Stief sitting right next to you? 
6 VENIREPERSON OHMERT: (Nodding head up and down.) 
7 MR. ROGERS: Is that how you say your name, sir? 
8 VENIREPERSON STIEF: Stief. 
9 MR. ROGERS: Stief. I'm sorry. 
10 Anybody else? 
11 And Mr. Stief, do you know anybody else other than 
12 Mr. -- 
13 VENIREPERSON STIEF: No. 
14 MR. ROGERS: And yes, ma'am. Miss Galloway? 
15 VENIREPERSON SUSAN GALLOWAY: I know Dale Galloway. 
16 He's my husband. 
17 MR. ROGERS: All right. 
18 THE COURT: I'm going to have to ask you all to 
19 stand up when you speak. It's real hard to hear you. Hard 
20 for the court reporter. So if you're answering whom you 
21 know, if you'll just stand and give your answers from a 
22 standing position. 
23 VENIREPERSON SUSAN GALLOWAY: I know Dale Galloway. 
24 He's my husband. 
25 MR. ROGERS: All right. We have a mother and a son 
285 
 1 and we have husband and wife on the same panel. 
2 Anybody else on that row? 
3 Yes, sir. 
4 VENIREPERSON WILLIAM THOMAS: I'm the son. 
5 MR. ROGERS: You're the son. You're William Thomas. 
6 You do know your mother. That's good to know. 
7 The third row on this side. 
8 Yes, sir. Mr. Moore. 
9 VENIREPERSON MOORE: I've known Roy Waechter for 
10 dealings with him 30 years ago, and my brother-in-law used to 
11 work for him. 
12 MR. ROGERS: Okay. 
13 Now, back on the -- my left, your right, on the 
14 fourth row. Anybody who hasn't already been talked about? 
15 No hands. On my right side, anybody? 
16 Yes, ma'am. 
17 VENIREPERSON BENNETT: I know Roy Waechter. 
18 MR. ROGERS: And you are Joan Bennett; correct? 
19 VENIREPERSON BENNETT: Uh-huh. 
20 MR. ROGERS: And how do you know Mr. Waechter? 
21 VENIREPERSON BENNETT: Through his business. 
22 MR. ROGERS: Okay. Once again, you're one of the 
23 people -- you know him, but he doesn't know you. 
24 VENIREPERSON BENNETT: Right. 
25 MR. ROGERS: Fair enough. 
286 
 1 And the back row. Anybody who hasn't already been 
2 talked about? And I see no hands. 
3 Now, here's the question. And it might be a little 
4 bit different for those of you who know each other from going 
5 to school together or working together and just being in the 
6 same neighborhood, and people who go to the same church might 
7 have a somewhat different twist on this question, and 
8 certainly husband and wife or mother and son might have a 
9 different twist on the same question, but the question is: 
10 If you're on the jury with the person or people that you 
11 know, is there anything about your relationship with those 
12 people that may make you want to give more weight to their 
13 views and opinions or less weight to their views and opinions 
14 than you would to the views and opinions of a juror who's a 
15 stranger to you? 
16 First of all, I want to see a show of hands of 
17 people who understand the question. 
18 (Show of hands.) 
19 MR. ROGERS: Okay. 
20 That's a question Mr. Philipak doesn't understand. 
21 VENIREPERSON PHILIPAK: Yeah. Just say it again. I 
22 don't -- 
23 MR. ROGERS: Okay. That's why I asked, because it 
24 gets convoluted. 
25 If you were on the jury with somebody who you knew, 
287 
 1 is there anything about that relationship which would make 
2 you give more weight to their opinions, when you're talking 
3 about having to decide a case, or less weight to their -- 
4 VENIREPERSON PHILIPAK: No. 
5 MR. ROGERS: -- opinions than you would a stranger? 
6 VENIREPERSON PHILIPAK: Would make no difference. 
7 MR. ROGERS: Okay. Good enough. That's -- 
8 VENIREPERSON PHILIPAK: That's the answer you want; 
9 right? 
10 MR. ROGERS: That's -- well, I want a true answer, 
11 and that sounds like it is. Okay. How's that? 
12 Now, everybody else I assume understands the 
13 question; right? Anybody not clear on that? Okay. 
14 Is there anybody here who might think, Well, hey, if 
15 I'm on the jury with my wife, I'm going to have to listen to 
16 what she has to say or else I'm going to have to live with 
17 this woman when I get home. And I'm looking at Mr. Galloway, 
18 and he's shaking his head no. Is that a fair statement? 
19 Okay. 
20 Now, Mrs. Galloway, let me ask the converse to you. 
21 Are you thinking that if you're on the jury with your 
22 husband, that you might have to give a little more attention 
23 to his opinions than you would somebody who's a stranger to 
24 you, because of the fact that you're married and have been 
25 married for a while? 
288 
 1 VENIREPERSON SUSAN GALLOWAY: No, sir. 
2 MR. ROGERS: You have to stand up. I'm sorry. 
3 VENIREPERSON SUSAN GALLOWAY: I don't feel that way. 
4 However, I would like to say that I don't feel like we can 
5 both be on the jury because we have foster kids at home, and 
6 the state has not approved anybody to watch them for us if we 
7 were gone. And they have to stay in our town so they can go 
8 to school. 
9 MR. ROGERS: So what you're saying is one of you can 
10 serve, but not both. 
11 VENIREPERSON SUSAN GALLOWAY: Right. 
12 MR. ROGERS: Okay. Thank you. I appreciate that. 
13 And that's a question that had not occurred to me until you 
14 stood up and said it. Thank you. 
15 VENIREPERSON SUSAN GALLOWAY: We can both do it, but 
16 the children need looking after. 
17 MR. ROGERS: Okay. Fair enough. So we won't have 
18 to worry about getting each other angry. 
19 VENIREPERSON SUSAN GALLOWAY: Right. 
20 MR. ROGERS: Okay. 
21 Mr. Thomas, let me ask you the same question. If 
22 you're on the jury with your mother, do you think you'd have 
23 to give her opinion more weight than you would that of a 
24 stranger? Or do you think you would give it more weight? 
25 VENIREPERSON WILLIAM THOMAS: Yeah, I probably 
289 
 1 would. I mean -- 
2 MR. ROGERS: And -- I mean, we've all been brought 
3 up to listen to our mothers; right? 
4 VENIREPERSON WILLIAM THOMAS: Right. 
5 MR. ROGERS: And do you think that you would have 
6 trouble arguing a position contrary to hers if you had a 
7 different position and you were both on the jury? 
8 VENIREPERSON WILLIAM THOMAS: No, I wouldn't have 
9 trouble arguing. I would -- you always have that mother 
10 voice stuff. 
11 THE COURT: Could you stand up, Mr. Thomas? 
12 MR. ROGERS: I'm sorry. 
13 VENIREPERSON WILLIAM THOMAS: I wouldn't have 
14 trouble arguing the point. I guess the voice would be in my 
15 mind, as it's been all my life. 
16 MR. ROGERS: But it would be, whether she was on the 
17 jury or not. 
18 VENIREPERSON WILLIAM THOMAS: Yeah, it would be 
19 there. 
20 MR. ROGERS: All right. Thank you. 
21 How about you, Mrs. Thomas? 
22 VENIREPERSON LAURA THOMAS: He's never shared an 
23 opinion with me so far, so. When we do argue, and we -- 
24 about 50/50 with the wins. So I don't think it would -- 
25 MR. ROGERS: So you have some give and take going on 
290 
 1 in the nonjury situation; is that what you're telling us? 
2 VENIREPERSON LAURA THOMAS: Yes. 
3 MR. ROGERS: Okay. But, of course, you're the one 
4 that's always right, because you're his mom; right? 
5 VENIREPERSON LAURA THOMAS: Yes. 
6 MR. ROGERS: Is there anybody here who has such a 
7 relationship with somebody else on the jury panel that it 
8 might make it difficult for you to, in the give and take of 
9 jury deliberations, treat their opinion the same way you 
10 would treat the opinion of a juror who's a stranger? I see 
11 no hands. I take it the answer is no. 
12 Does anybody here belong to any group or 
13 organization which has as its goal or reason for existing or 
14 one of the things it does: Fighting crime? In other words, 
15 a neighborhood watch group, a sheriff's auxiliary group, 
16 anything like that? I don't see any hands. 
17 Does anybody here belong to a group or organization 
18 which is designed to help out people who are in trouble with 
19 the law? Like a prison ministry kind of group or a -- I'll 
20 just use that as an example. I'm having trouble thinking of 
21 another one. Anybody belong to any organization like that? 
22 Okay. I see no hands once again. 
23 Has anybody on the jury panel had a college level 
24 course or higher in psychology? 
25 (Show of hands.) 
291 
 1 MR. ROGERS: Okay. I see some hands. 
2 Let me start in the front row with Miss Pund. You 
3 -- if you're in the front row, you don't have to stand up. I 
4 think that's the rule. 
5 First of all, how long ago was that? 
6 VENIREPERSON PUND: Five years ago. 
7 MR. ROGERS: And where was it? 
8 VENIREPERSON PUND: Webster University. 
9 MR. ROGERS: And what was the name of the course? 
10 VENIREPERSON PUND: Psychology 101 and child 
11 psychology. 
12 MR. ROGERS: Okay. During the class, did you study 
13 how memories are formed and stored and retrieved? 
14 VENIREPERSON PUND: I'm sure I did, but -- a little, 
15 but I can't remember. 
16 MR. ROGERS: Let me ask you this. 
17 VENIREPERSON PUND: I got an A in the class. 
18 MR. ROGERS: I'm sure you earned it. You didn't 
19 make a conscious decision to forget everything you learned, 
20 did you? 
21 VENIREPERSON PUND: No. 
22 MR. ROGERS: Okay. Fair enough. I know it was a 
23 smart-aleck comment, but we still had to have an answer for 
24 the record. And do you recall the name of Dr. Elizabeth 
25 Loftus coming up during your studies? 
292 
 1 VENIREPERSON PUND: No. 
2 MR. ROGERS: Okay. All right. 
3 Second row, anybody who had a college level? 
4 Mr. Norton. 
5 VENIREPERSON NORTON: Yeah. Psych 101. Basically 
6 it was a general psych in college. The only thing I remember 
7 about that was testing, and your mind during tests and 
8 whatnot. I mean, it was a long time ago. I'm 40 years old. 
9 I was 21, something like that. The only thing I remember was 
10 results on how your mind would be for study. If you study 
11 this way, you should test this way. Things of that nature. 
12 But that wasn't my major or anything like that. 
13 MR. ROGERS: So basically you took what you could 
14 for practical use in other areas of academic endeavor. 
15 VENIREPERSON NORTON: If you study drinking, take 
16 your test drinking. 
17 MR. ROGERS: I'm not going there. 
18 VENIREPERSON NORTON: I just remembered that. I'm 
19 sorry. 
20 MR. ROGERS: And I'm not going to ask if that 
21 applied during your student days either. But having said 
22 that, is that the extent of what you remember? Correct? 
23 VENIREPERSON NORTON: I don't remember much. No, 
24 I'm kidding. 
25 MR. ROGERS: Anybody else on the second row who's 
293 
 1 had a college level or higher course of psychology? Okay. 
2 This second row. 
3 Yes, ma'am. 
4 VENIREPERSON CARTER: Juror 20. 
5 MR. ROGERS: There you are. Miss Carter; correct? 
6 VENIREPERSON CARTER: Uh-huh. 
7 MR. ROGERS: How long ago was that? 
8 VENIREPERSON CARTER: It's been within the last five 
9 years. 
10 MR. ROGERS: And where was that? 
11 VENIREPERSON CARTER: St. Charles Community College. 
12 MR. ROGERS: And what was the course? 
13 VENIREPERSON CARTER: It was introduction. 
14 MR. ROGERS: Okay. Did you also have anything 
15 dealing with memories and how they're encoded, stored, 
16 retrieved? 
17 VENIREPERSON CARTER: I don't remember either. 
18 MR. ROGERS: Okay. Fair enough. Thank you. 
19 Mr. Gibbs. 
20 VENIREPERSON GIBBS: Well, the high school classes I 
21 mentioned before were college credited. So I don't know if 
22 that counts or not. And we did discuss the topics of memory 
23 and stuff. I don't recall most of it, though. 
24 MR. ROGERS: Do you recall the name of Dr. Loftus? 
25 VENIREPERSON GIBBS: No. 
294 
 1 MR. ROGERS: Okay. Thank you. 
2 All right. Anybody else in the second row on either 
3 side? Third row? 
4 Yes, sir. 
5 VENIREPERSON SEABAUGH: I took psychology 101, child 
6 psychology, and probably abnormal psychology. That's about 
7 all I remember. 
8 MR. ROGERS: And you are Mr. Seabaugh? 
9 VENIREPERSON SEABAUGH: Yes. 
10 MR. ROGERS: Is that how you pronounce it? 
11 VENIREPERSON SEABAUGH: Seabaugh. 
12 MR. ROGERS: Seabaugh. 
13 VENIREPERSON SEABAUGH: Yes. 
14 MR. ROGERS: Thank you. And where was this? I'm 
15 sorry. I'm not done. Thank you for telling me how to say 
16 your name. 
17 VENIREPERSON SEABAUGH: Montgomery, Alabama, at 
18 Southern Christian University. 
19 MR. ROGERS: All right. And did you study memory 
20 and some of those things? 
21 VENIREPERSON SEABAUGH: Probably, but I don't 
22 remember a lot of it, so. 
23 MR. ROGERS: Okay. Fair enough. Thank you. 
24 Anybody else on the second row? 
25 Yes, ma'am. Mrs. Galloway. 
295 
 1 VENIREPERSON SUSAN GALLOWAY: I am in the process of 
2 getting my Master's, so -- in counseling, so I have taken -- 
3 THE COURT: Miss Galloway, would you raise your 
4 voice just a little bit. I know you're getting a Master's 
5 degree. I heard that much. 
6 VENIREPERSON SUSAN GALLOWAY: In counseling, at the 
7 moment, so I have taken several classes. 
8 MR. ROGERS: All right. And where are you getting 
9 your Master's degree? 
10 VENIREPERSON SUSAN GALLOWAY: Missouri Baptist 
11 University. 
12 MR. ROGERS: Where's that? 
13 VENIREPERSON SUSAN GALLOWAY: I go to the extension 
14 in Moscow Mills. 
15 MR. ROGERS: Okay. I didn't know they had one. 
16 Where's -- where's the main campus? 
17 VENIREPERSON SUSAN GALLOWAY: Down off of Ballas. 
18 MR. ROGERS: Okay. Thank you. In terms of the 
19 memory, for the classes that you had that touched on memory, 
20 how extensive has that been? 
21 VENIREPERSON SUSAN GALLOWAY: Not very. 
22 MR. ROGERS: And once again, have you -- do you 
23 recall the name of Dr. Loftus coming up in any of these 
24 classes? 
25 VENIREPERSON SUSAN GALLOWAY: No. 
296 
 1 MR. ROGERS: Thank you. 
2 Anybody else on the third row over here? Third row 
3 over here. No? Fourth row. My left. Your right. 
4 Yes, ma'am. 
5 VENIREPERSON KELLY: Took child -- or college 
6 psychology. 
7 MR. ROGERS: And you're Miss Kelly? 
8 VENIREPERSON KELLY: Yes. 
9 MR. ROGERS: And where was that? 
10 VENIREPERSON KELLY: It was in Washington State. 
11 MR. ROGERS: And do you recall -- at what 
12 university? 
13 VENIREPERSON KELLY: It was at a community college. 
14 Green River Community College. 
15 MR. ROGERS: Okay. Do you recall studying memory 
16 and how it's -- 
17 VENIREPERSON KELLY: (Shaking head from side to 
18 side.) 
19 MR. ROGERS: -- encoded or retrieved or -- 
20 VENIREPERSON KELLY: No, sir. 
21 MR. ROGERS: And do you recall the name Dr. Loftus? 
22 VENIREPERSON KELLY: No, sir. 
23 MR. ROGERS: Thank you. 
24 All right. Right-hand side, fourth row. 
25 Yes, sir. Mr. Runge? 
297 
 1 VENIREPERSON RUNGE: Runge, yes, sir. 
2 MR. ROGERS: Runge. I'm sorry. 
3 VENIREPERSON RUNGE: I had two courses at Moberly 
4 Area Junior College. That was back in '74 and '75. 
5 MR. ROGERS: Okay. 
6 VENIREPERSON RUNGE: So I don't remember much about 
7 it. 
8 MR. ROGERS: Does that -- do they have a campus 
9 here? 
10 VENIREPERSON RUNGE: No. That was in Moberly, 
11 Missouri. 
12 MR. ROGERS: In Moberly? 
13 VENIREPERSON RUNGE: Yes. 
14 MR. ROGERS: Okay. And once again, you don't recall 
15 any of the details about what they may have taught about 
16 then. 
17 VENIREPERSON RUNGE: No. 
18 MR. ROGERS: Thank you. 
19 Anybody else on the fourth row over here? And the 
20 back row on my left, your right. 
21 Yes, sir. Mr. Gaines. 
22 VENIREPERSON GAINES: I had several psychology, 
23 social psychology, statistics, child behavior, 20 years ago, 
24 Mid-America Nazarene College. I remembered enough to pass a 
25 test and get a grade. 
298 
 1 MR. ROGERS: That's over in my part of the country, 
2 right, over in Olathe, Kansas? 
3 VENIREPERSON GAINES: Right. 
4 MR. ROGERS: And do you recall anything about the 
5 subject of memory, as it was taught back then? 
6 VENIREPERSON GAINES: Just enough to remember what 
7 was going to be on the test. 
8 MR. ROGERS: And once you took the test, you didn't 
9 care to remember it any further? 
10 VENIREPERSON GAINES: (Nodding head up and down.) 
11 MR. ROGERS: All right. Thank you. 
12 Okay. Is that everybody? 
13 While we're sort of talking about memory, is there 
14 anybody here who's ever been someplace and seen somebody you 
15 thought you knew, and it turned out it wasn't that person? 
16 In other words, mistaken a stranger for someone you knew? 
17 I see a hand. Mr. Ohmert? 
18 VENIREPERSON OHMERT: Yes. 
19 MR. ROGERS: Tell me a little bit about that. 
20 VENIREPERSON OHMERT: I guess I was -- about five or 
21 six years ago I thought I was in a place, and I never had 
22 been there before, and I thought I knew somebody. Turned out 
23 that I just didn't know them. 
24 MR. ROGERS: Just somebody who looked like somebody 
25 you knew? 
299 
 1 VENIREPERSON OHMERT: Yeah. 
2 MR. ROGERS: Okay. 
3 And I saw some other hands. I'm not going to detail 
4 them, but let me ask the reverse of that question then. Has 
5 anybody ever been someplace, and some stranger came up to you 
6 and said, "Aren't you so and so?" And you're not so and so. 
7 I see a nod of the head here from Mr. Gales. 
8 VENIREPERSON GALES: Yes. 
9 MR. ROGERS: And tell me about that. 
10 VENIREPERSON GALES: You want to know the 
11 particulars. 
12 MR. ROGERS: Yeah, or just -- a particular incident. 
13 VENIREPERSON GALES: They just asked me if I was 
14 so-and-so, and I said no. And they said, "You look like 
15 so-and-so." I said I wasn't. 
16 MR. ROGERS: Fair enough. 
17 Does anybody here have any quarrel with the 
18 proposition that a witness who thinks they are being honest 
19 and maybe being honest may be mistaken about identifying 
20 somebody who they say as somebody who they saw some other 
21 time? Anybody have any proposition -- any quarrel with the 
22 notion that even though somebody may be telling the truth as 
23 they perceive it, they could be wrong about whether or not 
24 that's the person they saw? Does everybody agree that it is 
25 something that is part of our common experience, that people 
300 
 1 see people that they think are somebody else and they are 
2 proven not? 
3 (Show of hands.) 
4 MR. ROGERS: Okay. 
5 VENIREPERSON GAINES: I don't know that I completely 
6 agree with that statement. 
7 MR. ROGERS: Okay. And once again, you are 
8 Mr. Gaines? 
9 VENIREPERSON GAINES: Yes. 
10 MR. ROGERS: You don't agree with the statement that 
11 that's part of our common experience? 
12 VENIREPERSON GAINES: I think that it can be part of 
13 our common experience, but you haven't given us enough 
14 information. If I know somebody very well, I'm not going to 
15 mistake somebody else for them. But if I casually know 
16 somebody, I may. 
17 MR. ROGERS: Okay. Or how about strangers and 
18 strangers? 
19 VENIREPERSON GAINES: I don't know them, so it's 
20 very easy to make that mistake. 
21 MR. ROGERS: Okay. So you are basically agreeing 
22 that mistaken identity happens, but as the familiarity with 
23 the person is greater, the person that you know is greater, 
24 the possibility of mistaking somebody for them might become 
25 less. 
301 
 1 VENIREPERSON GAINES: Yes. 
2 MR. ROGERS: Okay. Thank you. That's based on your 
3 common experience more than your studies at Mid-America 
4 Nazarene University; correct? 
5 VENIREPERSON GAINES: Yes. 
6 MR. ROGERS: All right. 
7 Mr. Waechter, you were telling us about a situation, 
8 telling Mr. Crane about a situation where you had experienced 
9 something unpleasant and had decided to put it out of your 
10 mind, and then didn't remember it for a while? 
11 VENIREPERSON WAECHTER: Yeah. I work construction. 
12 We had a truck. And I picked it up at our location. Went 
13 out to get the gas cap. It was off. On the truck. First 
14 thing I thought: Somebody stole the gas. 
15 MR. ROGERS: Uh-huh. 
16 VENIREPERSON WAECHTER: A month later -- I had put 
17 it out of mind. Somebody got the gas. A month later, the 
18 truck did get stolen. Then I went back to the month before, 
19 when I went out and the gas cap was gone. And I know, if the 
20 truck was out of gas -- I always charge gas up about two 
21 miles from where this truck was parked. I couldn't remember 
22 stopping and putting gas in it. But if the truck was empty, 
23 and somebody stole the gas, how did I get another 30 miles 
24 closer to home without any gas? Trick was: Nobody stole the 
25 gas. Somebody took the gas cap off and put gas in it, so 
302 
 1 they presumably could get away with the truck. 
2 But I took for granted that somebody stole the gas, 
3 so put it out of my mind for at least three weeks. Two 
4 weeks. When the truck got stolen, it reentered my mind, 
5 "Hey, they didn't steel that gas. Somebody had to put gas in 
6 it." Because I checked the records. I never put gas in the 
7 truck. 
8 MR. ROGERS: So -- 
9 VENIREPERSON WAECHTER: I do hope I'm not out of 
10 line, if you follow what I'm saying. 
11 MR. ROGERS: I think -- 
12 VENIREPERSON WAECHTER: The gas cap's gone. 
13 Somebody took the gas. But two weeks later the truck 
14 disappears. You stop and think, Well, if they stole the gas, 
15 how did I drive 30 miles? 
16 MR. ROGERS: And one assumes, when you got in the 
17 truck to drive it back to your place of business, that you 
18 looked at the gas gauge, it had gas in it. 
19 VENIREPERSON WAECHTER: And it left my mind. I 
20 never thought about it. 
21 MR. ROGERS: And the fact that the gas cap had been 
22 missing left your mind. 
23 VENIREPERSON WAECHTER: Right. 
24 MR. ROGERS: Okay. But it's not a matter of 
25 later -- it's not a matter of you consciously deciding to 
303 
 1 forget that the gas cap had been missing; correct? 
2 VENIREPERSON WAECHTER: I think I forgot the 
3 incident when it happened, because it really was a minor 
4 incident. Some kid or somebody stole the gas. 
5 MR. ROGERS: Not a matter of you deciding: "Well, 
6 the gas cap's gone. I'm going to -- that's too horrible for 
7 me to contemplate. I'm not going to think about it." 
8 VENIREPERSON WAECHTER: Uh-huh. 
9 MR. ROGERS: Right? Okay. And did you, I assume, 
10 replace the gas cap at some time? 
11 VENIREPERSON WAECHTER: I found the gas cap. It was 
12 maybe 50 feet away from the truck. 
13 MR. ROGERS: Okay. 
14 VENIREPERSON WAECHTER: Somebody took the gas cap 
15 and... 
16 MR. ROGERS: All right. I see. 
17 VENIREPERSON WAECHTER: Or they got spooked when 
18 they was putting gas in it and they... 
19 MR. ROGERS: Okay. Thank you. I was wondering what 
20 that was about. 
21 VENIREPERSON WAECHTER: That was it. 
22 MR. ROGERS: Wasn't making a whole lot of sense to 
23 me, but now that you've explained it. 
24 Has anybody here ever been evaluated or treated by a 
25 psychologist or a psychiatrist or some other person who is 
304 
 1 like a mental health professional, a counselor, or something 
2 like that? I'm not talking about going to a marriage 
3 counselor. Something more than that. 
4 You can put your hand down. You've been to a 
5 counselor? 
6 VENIREPERSON McCULLOUGH: Yes. 
7 MR. ROGERS: Number 33? 
8 VENIREPERSON McCULLOUGH: Yes. 
9 MR. ROGERS: And you're Miss McCullough; is that 
10 correct? 
11 VENIREPERSON McCULLOUGH: Yeah. Mary McCullough. 
12 THE COURT: Could you stand? 
13 VENIREPERSON McCULLOUGH: Yes. 
14 I don't really remember it. I was kind of young. I 
15 was like 16. And I OD'd on Aleve. And I spent like -- 
16 MR. CRANE: You know, I'm sorry. I didn't -- 
17 THE COURT: You're going to have to -- 
18 MR. CRANE: You OD'd on what? 
19 VENIREPERSON McCULLOUGH: Aleve. 
20 MR. CRANE: Okay. 
21 VENIREPERSON McCULLOUGH: And I spent a weekend in 
22 the psych ward downtown St. -- no, at St. John's. 
23 St. John's. And I was released. That was it. 
24 MR. ROGERS: So you were basically treated for the, 
25 I guess overdose is the way to put it, but the toxicant, too 
305 
 1 much toxin, too much ibuprofen? Is that what the reason was? 
2 VENIREPERSON McCULLOUGH: More or less. 
3 MR. ROGERS: Okay. Thank you. 
4 Anybody else? 
5 Mr. Philipak? 
6 VENIREPERSON PHILIPAK: Yeah. I just seen one one 
7 time. That was it. 
8 MR. ROGERS: And -- 
9 VENIREPERSON PHILIPAK: A psychiatrist. 
10 MR. ROGERS: How old were you at the time? 
11 VENIREPERSON PHILIPAK: About 38, 39, I guess. 
12 MR. ROGERS: Okay. Thank you. 
13 Anybody else? 
14 Ma'am. I'll get your name in a minute. Janet 
15 Brininger? 
16 VENIREPERSON BRININGER: Yes. 
17 MR. ROGERS: Yes. 
18 VENIREPERSON BRININGER: I seen one for depression. 
19 MR. CRANE: I'm sorry? 
20 MR. ROGERS: She saw a mental health professional 
21 for depression? 
22 VENIREPERSON BRININGER: Yeah. 
23 MR. CRANE: Thank you. 
24 MR. ROGERS: And how long ago was that, ma'am? 
25 VENIREPERSON BRININGER: About ten years. 
306 
 1 MR. ROGERS: Okay. Thank you. 
2 Anyone else? 
3 Miss Delk? 
4 VENIREPERSON DELK: Same here. I saw a counselor. 
5 THE COURT: I'm sorry. You're going to have to 
6 speak up. It's hard to hear you, ma'am. 
7 VENIREPERSON DELK: I saw a psychologist and a 
8 psychiatrist for depression after going through a divorce. 
9 MR. ROGERS: And how long ago -- 
10 VENIREPERSON DELK: About ten years ago. Thirteen 
11 years ago. 
12 MR. ROGERS: Okay. Thank you. 
13 Anybody else? 
14 Yes, sir. 
15 VENIREPERSON BLACK: I went to a counselor for 
16 depression. Four -- four years ago. 
17 MR. ROGERS: Thank you, sir. 
18 Mr. Crane talked at some length about Charles 
19 Erickson and his plea bargain and plea agreement. Is there 
20 anybody here, other than Mr. Straughter, who's already made 
21 it perfectly clear how he feels about this situation, is 
22 there anybody here who would automatically believe a witness 
23 who came in and said, "I did this crime, I've pled guilty to 
24 it, I'm going to be sent to prison for it, and that's the guy 
25 that did it with me"? Is there anybody, other than 
307 
 1 Mr. Straughter, anybody who says, "Okay, this guy is going to 
2 prison, and he says he did it; I'm going to believe who he 
3 says he did it with"? I don't see any other hands. Okay. 
4 Does that accurately describe your beliefs, 
5 Mr. Straughter? 
6 VENIREPERSON STRAUGHTER: You're pretty much on it. 
7 MR. ROGERS: Okay. Thank you. 
8 Yes. Mr. Norton. 
9 VENIREPERSON NORTON: I just want to say that, I 
10 don't know -- that doesn't help. I'm saying I could keep an 
11 open mind. By using that little bit -- and I don't think 
12 there's probably anyone sitting here that that did not 
13 prejudice this man, when they used that in the preliminary of 
14 talking about that. I think we're all saying, "Okay, we can 
15 understand what you're saying as far as presuming innocence," 
16 but by stating that, from the git-go, that there's a 
17 gentleman that testified to this, he's taking a plea, he -- 
18 you know, we've all heard he's copped a plea to save his own 
19 skin. That does not -- I mean, it does not lend well. 
20 That's all I am saying. And can we assume? Yes, we can -- 
21 not assume. Can we presume innocence? Yes. But in the 
22 backs of several folks' minds, you feel that -- and that's 
23 not a -- I don't even know if that should have been fair as 
24 far as the opening statements, to be able to use that part. 
25 It doesn't seem -- that's a prejudice with me against this 
308 
 1 gentleman. 
2 MR. ROGERS: And I appreciate that. I will tell you 
3 that, quite frankly, I would rather find that out from 
4 Mr. Straughter, for example, now, than find it out in what 
5 are really the opening statements or during when the first 
6 witness is called, down the line, when it's too late to do 
7 anything about it. I agree. Certainly not a helpful fact to 
8 the defense. But my -- my question really is: Is that -- 
9 the fact that you now have been given reason to believe that 
10 that will be the testimony coming in from Charles Erickson, 
11 does that mean we're wasting our time having the rest of the 
12 trial? And you don't feel that way, I take it. 
13 VENIREPERSON NORTON: No. 
14 MR. ROGERS: Okay. Thank you, Mr. Norton. I do 
15 appreciate your comments. And the situation had not escaped 
16 me. 
17 Let's talk about that a little bit. 
18 First of all, is there anybody who hasn't already 
19 said so who could never believe somebody who is testifying 
20 for the prosecution in return for a plea agreement? Somebody 
21 who says, "I did this crime, and here's what I'm getting, and 
22 this person did it with me, and so you should find him 
23 guilty." Anybody who would never believe such a witness? 
24 Okay. 
25 Now, while I've got you here, Mr. Norton, let me ask 
309 
 1 you what kinds of evidence would you want to hear to be able 
2 to decide whether or not to believe a witness who says, "I 
3 did the crime, and Ryan Ferguson did it with me"? 
4 MR. CRANE: Judge, I'm going to object to the form 
5 of that question. 
6 THE COURT: The objection is sustained to the form. 
7 You may rephrase your question, Counsel. 
8 MR. ROGERS: Let me ask it a different way then. 
9 What would you look at in deciding the credibility 
10 or the believability or the weight to be given to such 
11 testimony? 
12 MR. CRANE: Judge, I'm going to make the same 
13 objection. The juror is being asked to speculate on facts 
14 that he doesn't know about, at this stage of the trial. 
15 Object to the form of the question. 
16 MR. ROGERS: I thought it was responsive to the 
17 speculation about facts that was introduced during the 
18 state's voir dire, Your Honor. 
19 THE COURT: You may ask how he judges credibility of 
20 a witness. 
21 MR. ROGERS: Okay. 
22 THE COURT: Without getting into specifics that 
23 maybe has not gone into -- or asking him for matters that 
24 haven't been gone into. 
25 MR. ROGERS: Let me do it that way. 
310 
 1 In judging the testimony of any witness, I'll still 
2 pick on you, Mr. Norton, because you've obviously given this 
3 some thought, would you want to know the witness's ability to 
4 observe things? 
5 VENIREPERSON NORTON: Since we've all been given 
6 some, I don't -- I would -- I don't want to say facts, 
7 specific facts, but we've been given part of a puzzle here. 
8 We've been told that there's part of the puzzle that is not 
9 here. This is what we're going to have to use to make a 
10 decision. If there is no hard evidence, as far as what we -- 
11 you discussed: Hair, nail, whatever, blood, blah, blah, 
12 blah, that DNA, and that we are going specifically on another 
13 human's testimony to decide the fate of another human, then 
14 the scrutiny of that testimony of that witness, their 
15 personality, their personality profile, their credibility as 
16 far as other folks, folks that know them, is of paramount. 
17 So, yes. It's humongous. I mean, to take that step, without 
18 the other parts of the play, to take someone else's testimony 
19 that possibly, someone mentioned earlier, to save their own 
20 butt or whatever, their credibility as a person would be of 
21 paramount. 
22 MR. ROGERS: Okay. Thank you. I appreciate that. 
23 Let me ask you, in that regard -- let me actually -- 
24 yeah, let me ask you while I got you here, Mr. Norton, in 
25 terms of physical evidence, would you be interested in seeing 
311 
 1 whether or not that person's testimony goes along with the 
2 physical evidence that there is, or detracts from the 
3 physical evidence? In other words, is it consistent or 
4 inconsistent with physical evidence? Would that be important 
5 to you? 
6 VENIREPERSON NORTON: Yes. 
7 MR. ROGERS: And if there were physical evidence 
8 that was recovered, that did not match Charles Erickson or 
9 Ryan Ferguson, would that be important to you? 
10 VENIREPERSON NORTON: Yes, it would. 
11 MR. ROGERS: Thank you. 
12 And now that gets me to Mr. Headrick, because you're 
13 the one who talked twice about physical evidence. And once 
14 you said, "You need physical evidence," and then you seemed 
15 to say, "But it really depends on what the other evidence 
16 is." Is that a fair statement? 
17 VENIREPERSON HEADRICK: Yes, sir. 
18 MR. ROGERS: And let me ask you that. Would you be 
19 able to use whatever physical evidence was presented in 
20 assessing the believability and the weight and value to be 
21 given to the testimonial evidence? 
22 MR. CRANE: Judge, I'm going to object. I think 
23 that seeks a commitment from the prospective juror. So I'll 
24 make -- that's my objection. "Would he" -- 
25 MR. ROGERS: "Be able." The "be able" is what makes 
312 
 1 it not a commitment. To use physical evidence in assessing 
2 the believability of the testimonial evidence. 
3 THE COURT: I'm going to overrule the objection. 
4 You may answer the question, if you understand it, 
5 sir. 
6 VENIREPERSON HEADRICK: One more time. 
7 MR. ROGERS: Would you be able to use whatever 
8 physical evidence is presented in assessing the believability 
9 or the weight or value of the testimonial evidence? You know 
10 what testimonial evidence is? Things people say -- 
11 VENIREPERSON HEADRICK: Along with it or solely? 
12 MR. ROGERS: No, not solely. Along with it. 
13 VENIREPERSON HEADRICK: Yes. 
14 MR. ROGERS: Okay. Thank you. And that's a very 
15 good question. 
16 Yes, sir. Mr. Harris? 
17 VENIREPERSON HARRIS: I understand your questions 
18 you're asking. By us being able to -- we were given a 
19 statement by the prosecutor about having a witness who turned 
20 state's witness -- or state's evidence, whatever. And that 
21 in itself we could seem to believe. This man, he's pleaded 
22 guilty. If he was there with the defendant, whatever. It 
23 seems like that would be a cut-and-dried thing. But right 
24 after that the prosecutor mentioned something about alcohol. 
25 And whether or not this witness was drunk or what, I don't 
313 
 1 know. But that's kind of confusing me on this. 
2 MR. ROGERS: And I can't really talk about that. 
3 VENIREPERSON HARRIS: I know you can't, and we can't 
4 -- we haven't been given those facts. But for you to ask us, 
5 "Can we believe this witness" -- 
6 MR. ROGERS: And I'm not asking you that. What I'm 
7 asking you is: Can you weigh and judge -- 
8 VENIREPERSON HARRIS: Oh, sure. 
9 MR. ROGERS: -- the testimony of this witness, 
10 without automatically believing him or automatically 
11 disbelieving him, but looking at it as evidence that has to 
12 be looked at as part of the big picture. And there are 
13 things that might tend to support -- 
14 VENIREPERSON HARRIS: Right. That's what I was 
15 getting at. We didn't have any -- any -- anything at all. 
16 We knew that he turned state's evidence, or whatever you want 
17 to call it. 
18 MR. ROGERS: That's what I'm trying to get to. I 
19 think you and I seem to be on the same page, Mr. Harris. 
20 Okay. Is there anybody here who could not consider 
21 and weigh the testimony of a -- what do I want to call it? -- 
22 a codefendant, guilty pleading, cooperating with the 
23 government, testifying witness, consider and evaluate their 
24 testimony in light of all of the evidence in the case, 
25 physical evidence, the testimonial evidence from other 
314 
 1 witnesses, and in terms of your own life experiences and 
2 common sense? Anybody who would automatically either accept 
3 or reject the testimony of somebody who is -- has pleaded 
4 guilty and is admitting their own involvement as conclusive 
5 or anybody who would automatically reject such testimony? 
6 Other than Mr. Straughter, who's already told us. 
7 Mr. Straughter? 
8 VENIREPERSON STRAUGHTER: The reason I was 
9 prejudiced was because of the amount of years. If it had 
10 been like two years, I could have maybe had a chance for him. 
11 But he said 25 years. That's a life sentence. 
12 MR. ROGERS: Well, let me, since you're there, talk 
13 to you about -- don't you think it's compared to what? What 
14 was he looking at if he didn't enter into the plea agreement? 
15 VENIREPERSON STRAUGHTER: If he had two years or 
16 maybe four or five years or something of that nature. 
17 MR. ROGERS: I mean, if you're looking at a maximum 
18 of five years, and you plead guilty for two years, that's an 
19 incentive; right? 
20 VENIREPERSON STRAUGHTER: Yeah. 
21 MR. ROGERS: But if you're looking at a maximum of 
22 life imprisonment, and you plead guilty for 25 years, that 
23 might be an incentive too, don't you think? 
24 VENIREPERSON STRAUGHTER: No. 
25 MR. ROGERS: Okay. 
315 
 1 VENIREPERSON STRAUGHTER: No. 
2 MR. ROGERS: Fair enough. 
3 VENIREPERSON HEADRICK: That, I think, what he's 
4 talking about, is -- 
5 MR. ROGERS: Okay. Mr. Headrick. 
6 VENIREPERSON HEADRICK: Yes, sir. That, I think, is 
7 having a lot of bearing on people's opinions, just about the 
8 questions that you're asking, because, you know, he's saying 
9 that since -- and nobody's even said whether the witness 
10 you're talking about is an accomplice or whether he's just 
11 a -- you know, he was the guy that did it, and he's the 
12 accomplice. You know, because it's -- it's causing -- it's 
13 causing some interference there. And you can't give, you 
14 know, you can't give details, so -- 
15 MR. ROGERS: Right. 
16 VENIREPERSON HEADRICK: -- when he says that there's 
17 a witness that is going to have a testimony against him, 
18 well, if he was there and he saw it, or if he was an 
19 accomplice and he's just trying to get in less trouble, or 
20 maybe he's the one that did it and to get into less trouble 
21 he's going to try to put the blame on somebody else. There's 
22 too many -- you know. And he's already developed an opinion 
23 because of that. So, I mean, you can't -- those questions 
24 are too indirect, you know. 
25 MR. ROGERS: Well, I go second, so I don't get -- or 
316 
 1 third, actually, if you count the Judge. But I understand 
2 what you're saying. And I don't know that there's anything I 
3 can really do about it, except, like I say, make sure that 
4 nobody here is just automatically saying, "Okay, the case is 
5 over as far as I'm concerned," one way or the other. You're 
6 not doing that, are you? 
7 VENIREPERSON HEADRICK: No, I'm not. 
8 MR. ROGERS: Okay. I appreciate it. 
9 Let me follow up a little bit on what I was talking 
10 about with Mr. Straughter, in terms of punishment. And the 
11 reason I'm doing this is because Mr. Ferguson is charged with 
12 more than one offense in this case. Just one dead guy, but 
13 he's charged with first degree murder. And if the jury finds 
14 him guilty of first degree murder, the jury will have to 
15 assess the punishment, but they only have one choice. And 
16 that choice is life in prison, with no possibility of parole. 
17 But Mr. Crane also mentioned a second degree felony 
18 murder. And if the jury were to find Mr. Ferguson guilty of 
19 second degree felony murder, they would have to assess the 
20 punishment there. And the range of punishment for second 
21 degree felony murder is not less than 10 years and not more 
22 than life in prison. 
23 So, now my question is: Is there anybody here who, 
24 if -- 
25 MR. CRANE: Can I just interrupt? Did you say 10 to 
317 
 1 life? 
2 MR. ROGERS: Yeah. 
3 MR. CRANE: It's actually 10 to 30. 
4 MR. ROGERS: That's true. 
5 MR. CRANE: Or life. 
6 MR. ROGERS: Exactly. 
7 Let me clarify that. Not less than 10 years and not 
8 more than 30 years, or life in prison. Okay? 
9 And there's also a charge of robbery in the first 
10 degree, which has a range of punishment like second degree 
11 murder of not less than 10 years, nor more than 30 years, or 
12 life in prison. 
13 Now, the question is a hypothetical question, 
14 because it's a question that hopefully will never really 
15 happen. But if, hypothetically, you were on the jury and you 
16 found Mr. Ferguson guilty of one or both of those offenses, 
17 is there anybody here who could not consider the full range 
18 of punishment? 
19 Mr. Philipak? 
20 VENIREPERSON PHILIPAK: I just don't -- I just can't 
21 see giving him life -- I just -- that's hard for me to judge. 
22 I don't -- to be truthful, this whole situation, I just don't 
23 care much for it anyway. I just -- 
24 MR. ROGERS: You shared that with us earlier. 
25 VENIREPERSON PHILIPAK: Well, I just want to make 
318 
 1 sure. I mean, I just don't care for this kind of stuff, and 
2 I just want to make sure. But anyway, just for me to give a 
3 call on somebody's life, to be honestly reassured that I know 
4 he did it or did not do it, I don't know. Benefit of the 
5 doubt, but I -- 
6 MR. ROGERS: Okay. And let me follow that up, 
7 because that's exactly why we have the burden of proof, 
8 beyond a reasonable doubt, is so that jurors like you are not 
9 put in the position of having to make these decisions and 
10 live with a wrong decision if you don't hold the state to 
11 their burden of proof. Right? 
12 VENIREPERSON PHILIPAK: Okay. 
13 MR. ROGERS: So knowing that that's the burden of 
14 proof, beyond a reasonable doubt, you could follow those 
15 instructions, couldn't you? I mean, it's not going -- 
16 VENIREPERSON PHILIPAK: Yes. 
17 MR. ROGERS: -- to be easy. 
18 VENIREPERSON PHILIPAK: Huh? 
19 MR. ROGERS: Not that it would be easy. 
20 VENIREPERSON PHILIPAK: No, not that it would be 
21 easy; just... 
22 MR. ROGERS: Let me ask you this. 
23 VENIREPERSON PHILIPAK: Okay. 
24 MR. ROGERS: If you were on trial, would you want a 
25 jury of 12 people who thought it was easy to send somebody to 
319 
 1 prison forever? 
2 VENIREPERSON PHILIPAK: Well, no. 
3 MR. ROGERS: Okay. 
4 VENIREPERSON PHILIPAK: I guess I just hit the easy 
5 button. 
6 MR. ROGERS: Yeah. Right. Exactly. 
7 VENIREPERSON PHILIPAK: What I'm just trying to get 
8 across is: That I don't like this confrontation stuff. I 
9 just don't, you know. I'm being totally clear. 
10 MR. ROGERS: And quite frankly, I've chosen my 
11 career, and you have not chosen a career as a juror. 
12 VENIREPERSON PHILIPAK: That's true. 
13 MR. ROGERS: Correct? 
14 VENIREPERSON PHILIPAK: Uh-huh. 
15 MR. ROGERS: And I understand that and I appreciate 
16 you doing it. 
17 VENIREPERSON PHILIPAK: Thank you. 
18 MR. ROGERS: Let's go back to a memory kind of 
19 question. Is there anybody here who's seen anything on 
20 television or heard on the radio or read anything in 
21 newspapers or magazines or wherever about so-called recovered 
22 memories? Nobody? 
23 VENIREPERSON LAURA THOMAS: Excuse me. 
24 MR. ROGERS: Yes, ma'am. I'm sorry. Miss Thomas. 
25 VENIREPERSON LAURA THOMAS: Do you mean that, under 
320 
 1 hypnotism, someone remembers something that they couldn't 
2 remember when they were not hypnotized? Is that what you're 
3 referring to? 
4 MR. ROGERS: That is an example that has been cited 
5 by some people -- 
6 VENIREPERSON LAURA THOMAS: Okay. 
7 MR. ROGERS: -- but that's not -- 
8 VENIREPERSON LAURA THOMAS: Yes, I have then. 
9 MR. ROGERS: -- the only thing that I'm talking 
10 about. You've heard of that. 
11 VENIREPERSON LAURA THOMAS: Yes. Uh-huh. 
12 MR. ROGERS: Okay. And how long ago was that, that 
13 you read or heard or whatever? 
14 VENIREPERSON LAURA THOMAS: Within the past year. 
15 MR. ROGERS: Okay. Did you have an opinion as to 
16 whether those memories were accurate or not, after you read 
17 or heard whatever you read or heard? 
18 VENIREPERSON LAURA THOMAS: No. 
19 MR. ROGERS: Did the thing that you were listening 
20 to or reading say that those were accurate or inaccurate? 
21 VENIREPERSON LAURA THOMAS: They implied that they 
22 were, yes. 
23 MR. ROGERS: Were accurate? 
24 VENIREPERSON LAURA THOMAS: (Nodding head up and 
25 down.) 
321 
 1 MR. ROGERS: Was it -- you didn't know whether to 
2 accept that or not? 
3 VENIREPERSON LAURA THOMAS: (Shaking head from side 
4 to side.) 
5 MR. ROGERS: Is that a fair statement? 
6 VENIREPERSON LAURA THOMAS: Yes. Yes. 
7 MR. ROGERS: Okay. And did you do any other reading 
8 or research to follow up on that? 
9 VENIREPERSON LAURA THOMAS: No. 
10 MR. ROGERS: Thank you. 
11 Anybody else who's had exposure to that notion of 
12 so-called recovered memories? 
13 Yes, sir. 
14 VENIREPERSON STIEF: I think I seen a program on TV 
15 about something like that, but I never thought much about it. 
16 MR. ROGERS: And you're Mr. Stief. 
17 VENIREPERSON STIEF: Correct. 
18 MR. ROGERS: And did you form an opinion or do you 
19 have an opinion as to whether such memories are accurate or 
20 not? 
21 VENIREPERSON STIEF: No. I never thought much about 
22 it. 
23 MR. ROGERS: Okay. Thank you. 
24 VENIREPERSON STIEF: Just one of those programs, 
25 watch it and turn it off. 
322 
 1 MR. ROGERS: Okay. Fine. 
2 Is there anyone here who believes that somebody can 
3 deliberately choose not to remember something that they have 
4 done while conscious and aware, and then will actually not 
5 have a memory of it for years? I don't see any hands. 
6 THE COURT: There is a hand, sir. 
7 MR. ROGERS: I'm sorry. 
8 THE COURT: In fact, two. 
9 MR. ROGERS: Miss McCullough? 
10 VENIREPERSON McCULLOUGH: I guess maybe. 
11 THE COURT: You need to speak up, please. 
12 VENIREPERSON McCULLOUGH: Maybe. 
13 MR. ROGERS: Maybe? You believe that's at least a 
14 possibility? 
15 VENIREPERSON McCULLOUGH: Yeah. It could be. 
16 Depending on what happened or whatever. 
17 MR. ROGERS: Okay. That you can -- stand. I'm not 
18 done with you yet. I'm sorry. In terms of actually saying, 
19 "Well, I choose not to remember this," and then you really 
20 don't remember it? 
21 VENIREPERSON McCULLOUGH: Oh. You don't mean 
22 like -- 
23 MR. ROGERS: I mean consciously choose. 
24 VENIREPERSON McCULLOUGH: You don't mean like 
25 blocking it out or something. 
323 
 1 MR. ROGERS: Well, it's like by blocking it out by 
2 choice. By an exercise of will. 
3 VENIREPERSON McCULLOUGH: I don't know. I think if 
4 it's traumatic enough maybe, but -- 
5 THE COURT: I'm sorry. I can't hear you. You 
6 need -- 
7 VENIREPERSON McCULLOUGH: Maybe if it's traumatic 
8 enough. 
9 MR. ROGERS: Maybe you could? 
10 VENIREPERSON McCULLOUGH: I guess, yeah. 
11 MR. ROGERS: All right. 
12 And I saw another hand. Miss Carter? 
13 VENIREPERSON CARTER: Yes. I think it's possible. 
14 We studied that in my psychiatric nursing class. 
15 MR. ROGERS: Okay. 
16 VENIREPERSON CARTER: That people can block those 
17 memories out. 
18 MR. ROGERS: Consciously choose to block a memory 
19 out. 
20 VENIREPERSON CARTER: Yes. 
21 MR. ROGERS: And then would they be aware the next 
22 day of having done that? 
23 VENIREPERSON CARTER: Well, they might remember it 
24 later on in time, you know. 
25 MR. ROGERS: Well, I'm not -- 
324 
 1 (Counsel and venireperson talking at the same time.) 
2 MR. CRANE: Well, no, let's let her finish her 
3 answer. 
4 MR. ROGERS: Thank you. 
5 I'm sorry. Go ahead. 
6 VENIREPERSON CARTER: Well, they might remember it 
7 later on in life. Something might trigger it to where it 
8 comes back to them. 
9 MR. ROGERS: All right. Now, my question I guess is 
10 focussed not about when they remember it, but when they 
11 forget it. In other words, does it take time to successfully 
12 block a memory, or can you do it with a single act of will, 
13 or did you study that part of it? 
14 VENIREPERSON CARTER: We studied it, but -- I think 
15 it is possible. 
16 MR. ROGERS: And how long ago was that class taught? 
17 VENIREPERSON CARTER: Just a couple of years ago. 
18 MR. ROGERS: Thank you. 
19 Anybody else? 
20 Yes. 
21 VENIREPERSON GIBBS: Are you referring to repressed 
22 memories or -- 
23 MR. ROGERS: I'm not referring to repressed memories 
24 as I understand it. I don't claim to be an expert. 
25 VENIREPERSON GIBBS: Okay. 
325 
 1 MR. ROGERS: But a repressed memory, in my 
2 understanding, is something that someone doesn't remember, 
3 not because they consciously choose to disregard it, but 
4 because of the trauma of the event itself, or the recurrence 
5 of events. Something like that. 
6 VENIREPERSON GIBBS: Okay. 
7 MR. ROGERS: Is that what you're talking about? 
8 VENIREPERSON GIBBS: Well, I was going to mention 
9 that I've heard of repressed memories, if that's what 
10 you're -- 
11 MR. ROGERS: Okay. And certainly that is the kind 
12 of thing that Mrs. Thomas was talking about. A repressed 
13 memory which was recovered under hypnosis or something. 
14 Is that correct, Mrs. Thomas? 
15 VENIREPERSON LAURA THOMAS: Yes. 
16 MR. ROGERS: But now I'm talking about something 
17 different, in terms of a memory which is consciously 
18 repressed. If there is such a thing. And that doesn't make 
19 -- even make sense, I don't think. 
20 MR. CRANE: Well, Judge, I'm going to object to 
21 whether or not he thinks that makes sense and also his 
22 definition of repressed memory. 
23 MR. ROGERS: A little late for the repressed memory 
24 definition stuff. 
25 MR. CRANE: Well, there's no question on the table. 
326 
 1 He's going, "Well, it doesn't make sense to me and" -- 
2 THE COURT: Are you objecting? 
3 MR. CRANE: There's no question. 
4 THE COURT: Are you objecting to the answer that is 
5 not responsive to a question? Is that -- 
6 MR. CRANE: If -- if -- I don't think that was -- 
7 with all due respect, I don't think Mr. Rogers' last series 
8 of comments was a question. If it was, I'll object to the 
9 form. I think it was a commentary. 
10 THE COURT: All right. If you would just -- you may 
11 rephrase your question, Counsel. 
12 MR. ROGERS: That will be easier. 
13 I'm still with you, Mr. Gibbs, a little bit. If 
14 there is a distinction between repressed memories and 
15 memories which are consciously put aside, okay, can you see 
16 that kind of a distinction? 
17 VENIREPERSON GIBBS: So you cannot -- are you saying 
18 that you can or cannot consciously repress memories? 
19 MR. ROGERS: I'm not saying; I'm asking, what you 
20 think about that. 
21 VENIREPERSON GIBBS: Well, I'm not sure. I'm not 
22 a -- 
23 MR. ROGERS: Okay. 
24 VENIREPERSON GIBBS: -- I'm not an expert, so. 
25 MR. ROGERS: All right. Thank -- 
327 
 1 VENIREPERSON GIBBS: I don't know if you can or not. 
2 MR. ROGERS: All right. Thanks. 
3 Yes, sir. Mr. Ohmert? 
4 VENIREPERSON OHMERT: I know if you happen to have a 
5 little bit too much to drink, you can surely forget that. 
6 And somebody tells you what you did, and you have no idea 
7 that you did that. 
8 MR. ROGERS: Okay. 
9 VENIREPERSON OHMERT: That has happened to me. 
10 MR. ROGERS: And that's -- 
11 (Laughter.) 
12 VENIREPERSON OHMERT: It's happened to me. 
13 MR. ROGERS: Okay. And that kind of thing, you 
14 know, what's -- 
15 VENIREPERSON OHMERT: So is that -- is that 
16 depressed or is that -- I mean, it's gone. 
17 MR. ROGERS: But let me ask you this. Have you ever 
18 had a situation where you were so drunk that you don't 
19 remember what you did, and that when somebody tells you about 
20 it later, you then can remember? Or is it just a memory 
21 that's not -- 
22 VENIREPERSON OHMERT: It's gone. It's gone. 
23 MR. ROGERS: All right. Thank you. 
24 Okay. Easy question. Is there anybody here, other 
25 than the people who have already said so, who themselves or a 
328 
 1 close friend or family member works or have worked in the 
2 field of law enforcement? I want to define the field of law 
3 enforcement broadly to include ATF agents, FBI agents, 
4 highway patrol officers, deputy sheriffs, sheriffs, local 
5 police officers, and even security guards. Is that 
6 everybody? 
7 Okay. Mr. Philipak? 
8 VENIREPERSON PHILIPAK: You asked who have and 
9 has -- 
10 MR. ROGERS: You've already talked about -- 
11 VENIREPERSON PHILIPAK: No, I don't think I did. 
12 MR. ROGERS: Okay. Go ahead. It's on your 
13 questionnaire I guess, yeah. 
14 VENIREPERSON PHILIPAK: I mean, he's retired now. 
15 MR. ROGERS: Okay. And who is that? 
16 VENIREPERSON PHILIPAK: His name was -- he was a 
17 state patrolman. Don Bizelli. 
18 MR. ROGERS: Okay. 
19 VENIREPERSON PHILIPAK: He's my brother-in-law. 
20 MR. ROGERS: Okay. 
21 Others? 
22 VENIREPERSON GIBBS: Does that include Coast Guard? 
23 MR. ROGERS: No. Coast Guard is more like a 
24 military service. 
25 VENIREPERSON GIBBS: Okay. 
329 
 1 MR. ROGERS: I'll get there. Although they do do 
2 law enforcement. 
3 VENIREPERSON GIBBS: Yeah. 
4 (Counsel and venireperson talking at the same time.) 
5 THE COURT: You can't both talk at the same time. 
6 MR. ROGERS: Sorry, Your Honor. 
7 THE COURT: Or we won't be able to get both of what 
8 you're saying. 
9 MR. ROGERS: Go ahead. 
10 VENIREPERSON GIBBS: I was going to say, they do do 
11 law enforcement. 
12 MR. ROGERS: All right. And you have a close friend 
13 who is in there or -- 
14 VENIREPERSON GIBBS: My father was, years ago. 
15 MR. ROGERS: Okay. Thank you. 
16 Yes, sir. 
17 VENIREPERSON RUNGE: Tony Runge. 
18 MR. ROGERS: Thank you. 
19 VENIREPERSON RUNGE: I had a brother-in-law that was 
20 a state patrolman. He's died a few years back with leukemia. 
21 He's no longer alive. I've also got a nephew that's on the 
22 St. Louis County police squad. And that's about it. 
23 MR. ROGERS: Thank you. 
24 VENIREPERSON RUNGE: Okay. 
25 MR. ROGERS: Yes, sir. 
330 
 1 VENIREPERSON MILLER: My brother's a detective down 
2 in St. Charles city. 
3 MR. ROGERS: And you're Kevin Miller? 
4 VENIREPERSON MILLER: Yes. 
5 MR. ROGERS: Thank you. 
6 And Mr. Brown? 
7 VENIREPERSON BROWN: I have a first cousin that's on 
8 the St. Charles County police force. And I also know Don 
9 Bizelli, who used to be a highway patrolman. And I've got 
10 another cousin through marriage that is a law enforcement 
11 officer right now with the City of Florissant. 
12 MR. ROGERS: Okay. Thank you. 
13 And Mr. Ohmert? 
14 VENIREPERSON OHMERT: I have a son-in-law that's a 
15 St. Louis policeman. 
16 MR. ROGERS: Thank you. 
17 Miss Moretto? 
18 VENIREPERSON MORETTO: Yes. I have a nephew by 
19 marriage that's a police officer over in Swansea, Illinois. 
20 He's in Iraq right now. 
21 MR. ROGERS: Okay. I assume he was also in the 
22 national guard, or some type of military police? 
23 VENIREPERSON MORETTO: Yeah. Army National Guard. 
24 MR. ROGERS: Okay. Thank you. 
25 THE COURT: You're Juror 38, are you, ma'am? 
331 
 1 VENIREPERSON MORETTO: Yes. 
2 THE COURT: Thank you. 
3 MR. ROGERS: Yes, ma'am. Miss -- 
4 VENIREPERSON FIELDS: I have a cousin who's a police 
5 officer in Jefferson County and a cousin by marriage who's a 
6 lawyer in Arkansas. 
7 MR. ROGERS: Okay. I don't think lawyers qualify as 
8 law enforcement. 
9 VENIREPERSON FIELDS: Oh, sorry. 
10 MR. ROGERS: Even prosecutors. I don't know. 
11 All right. Yes. 
12 VENIREPERSON SCHUPMANN: I have a brother-in-law who 
13 works for the Lincoln County Sheriff's Department. 
14 MR. ROGERS: Despite your view of the Lincoln County 
15 Sheriff's Department. 
16 VENIREPERSON SCHUPMANN: Right. 
17 MR. ROGERS: Okay. 
18 Let me -- 
19 THE COURT: Mr. Rogers, there's a hand. 
20 MR. ROGERS: I'm sorry. I missed a hand. 
21 VENIREPERSON BETTS: I have a sister-in-law that 
22 works down here, downstairs. 
23 MR. ROGERS: And you're Debra -- 
24 VENIREPERSON BETTS: Helen Ellis-Mershon. 
25 MR. ROGERS: I'm sorry? Her name? 
332 
 1 VENIREPERSON BETTS: Helen Mershon. She works 
2 downstairs. 
3 MR. ROGERS: And you are Debra Betts; is that 
4 correct? 
5 VENIREPERSON BETTS: Yes. 
6 MR. ROGERS: Thank you. 
7 Okay. Let me address this question, first of all, 
8 to those of you who have friends or relatives in law 
9 enforcement. Is there anything about that relationship which 
10 would lead you to give more weight or more believability to a 
11 police officer's testimony than you would to the testimony of 
12 another officer -- another witness, excuse me, who is not a 
13 police officer? 
14 Mr. Philipak? 
15 VENIREPERSON PHILIPAK: I think it would. I mean, 
16 I -- I would assume I -- I would believe a patrolman I guess 
17 more, say, than -- you said the witness? 
18 MR. ROGERS: Right. 
19 VENIREPERSON PHILIPAK: Or witness. Yes. 
20 MR. ROGERS: A lay witness? A civilian? 
21 VENIREPERSON PHILIPAK: Yeah. A civilian compared 
22 to, you know. 
23 MR. ROGERS: Why's that? 
24 VENIREPERSON PHILIPAK: I don't know. Just the way 
25 I was brought up. You know, I always respected them. I 
333 
 1 mean, I've never been in any trouble. I mean, nobody's 
2 given -- you know what I mean. Nobody's given me any reason 
3 to dislike them. 
4 MR. ROGERS: Let me ask you this. 
5 VENIREPERSON PHILIPAK: Okay. 
6 MR. ROGERS: If one witness came in and said, in 
7 Mr. Crane's example, the light was red, and that was a 
8 civilian witness, and a police officer witness came in and 
9 said the light was green, the police officer was just there, 
10 was not involved in the accident, just happened to be there, 
11 would you automatically believe the police officer? 
12 VENIREPERSON PHILIPAK: Well, I guess not if you put 
13 it that way. I mean -- I mean, that's -- then there you go. 
14 I guess you got to weigh out the facts. 
15 MR. ROGERS: Is what you're trying -- 
16 VENIREPERSON PHILIPAK: But that's -- I'm just -- 
17 yeah. 
18 MR. ROGERS: Is what you're trying to say, that 
19 police are trained, and they write reports and stuff, and so 
20 you can use that training in -- 
21 VENIREPERSON PHILIPAK: I would hope so. I mean, 
22 that's why we got them in there. I mean -- 
23 MR. ROGERS: Okay. 
24 VENIREPERSON PHILIPAK: -- you'd hope they'd tell 
25 the truth. I mean, I would assume. 
334 
 1 MR. ROGERS: Okay. But you're not saying cops never 
2 lie. 
3 VENIREPERSON PHILIPAK: I never said they'd never 
4 lie. I'm not saying that -- 
5 MR. ROGERS: And you're not saying -- 
6 VENIREPERSON PHILIPAK: I'm not saying I never lie 
7 neither, but I -- 
8 MR. ROGERS: Exactly. 
9 VENIREPERSON PHILIPAK: -- I mean -- 
10 MR. ROGERS: Fair enough. 
11 VENIREPERSON PHILIPAK: -- I'd be lying. 
12 MR. ROGERS: Exactly. That reminds me of a logic 
13 problem I once heard, and we won't go there. 
14 Anyone else who would tend to give more weight or 
15 believability to a law enforcement officer's testimony than 
16 to that of a lay witness, a civilian witness, just because 
17 it's a law enforcement officer? 
18 And Mr. Waechter? 
19 VENIREPERSON WAECHTER: I think I would. They're 
20 trained more. They're used to facing a problem and question 
21 every day. 
22 MR. ROGERS: Okay. Now, do you think they are more 
23 honest, just because of their job? 
24 VENIREPERSON WAECHTER: I'd trust them first. 
25 MR. ROGERS: So you think -- 
335 
 1 VENIREPERSON WAECHTER: I'd lean towards them, I'd 
2 say, yes. 
3 MR. ROGERS: Okay. Just because they're police 
4 officers? 
5 VENIREPERSON WAECHTER: They got to like the job. 
6 MR. ROGERS: Yeah, but that doesn't necessarily lead 
7 to honesty. They might like the opportunities (inaudible). 
8 I come from Kansas City, you know. 
9 All right. Anybody else? 
10 Yes, sir. Mr. Runge. 
11 VENIREPERSON RUNGE: I might have to put more weight 
12 on a police officer's testimony, especially if someone was, 
13 say, admitting guilt to a murder, like you're saying this 
14 witness may be, and they bring in a highway patrolman or 
15 whomever, I think I would have a tendency to believe that 
16 officer over that witness. 
17 MR. ROGERS: Okay. 
18 VENIREPERSON RUNGE: Because I trust and I hope that 
19 that officer or -- would carry more honesty and clout. And 
20 I'm not saying that they may be lying or not, but I 
21 personally would take the officer's standpoint probably over 
22 a witness that's already admitted guilt. 
23 MR. ROGERS: Okay. Let's leave the "already 
24 admitted guilt" out, and let's make them both sort of neutral 
25 witnesses, just for sake of this question. Okay? Would you 
336 
 1 then tend to, if all else was equal, tend to just believe the 
2 police officer because it was a police officer? 
3 VENIREPERSON RUNGE: If all was equal? 
4 MR. ROGERS: Yeah. If all else was equal. 
5 VENIREPERSON RUNGE: I would say probably I 
6 wouldn't outweigh the officer's testimony over that other 
7 person, no. 
8 MR. ROGERS: Okay. Thank you. 
9 MR. CRANE: Now wait a minute. What did you say? 
10 You wouldn't outweigh it? 
11 VENIREPERSON RUNGE: Well, I'm -- he was saying, if 
12 they were equal, if you had a person here and an officer 
13 setting there, testimony was the same thing, and I didn't 
14 know -- how do I put this? If I didn't know that person was 
15 not guilty, I think I could be very fair in judgment on that. 
16 MR. ROGERS: Okay. In other words, you think -- let 
17 me -- I don't want to put words in your mouth, but I want to 
18 understand what I think you're saying. You're saying that if 
19 all else is equal, and neither one of them is gaining 
20 anything from whatever they're saying, that you would not 
21 make a distinction as to whether it was a police officer or 
22 not a police officer -- 
23 VENIREPERSON RUNGE: No. 
24 MR. ROGERS: -- giving the testimony. Is that what 
25 you're saying? 
337 
 1 VENIREPERSON RUNGE: That is correct, yes. 
2 MR. ROGERS: Okay. Thank you. That's what I 
3 thought I heard. I wanted to make sure. 
4 Let me ask this of everybody. Is there anybody here 
5 who, in a situation where everything else was equal, talking 
6 about testimony under oath, would give more believability to 
7 a police officer than to somebody who wasn't a police 
8 officer, just because it's a police officer talking? 
9 Anybody? Okay. 
10 Has anybody here ever testified and been 
11 cross-examined, questioned by lawyer from the other side? 
12 Okay. Start with Mr. Waechter. What kind of case 
13 was that? 
14 VENIREPERSON WAECHTER: Individuals were suing a 
15 contractor for improper construction. I was subpoenaed as a 
16 witness to testify my opinion. 
17 MR. ROGERS: Okay. What? An expert -- 
18 VENIREPERSON WAECHTER: In other words, I was a 
19 contractor. 
20 MR. ROGERS: Okay. 
21 VENIREPERSON WAECHTER: Whether the work was 
22 satisfactory or not. 
23 MR. ROGERS: Did you feel like the lawyer who 
24 cross-examined you, the lawyer for the other side, treated 
25 you fairly? 
338 
 1 VENIREPERSON WAECHTER: There was a couple tricks, 
2 but basically it was pretty fair. 
3 MR. ROGERS: Okay. You say, "a couple of tricks." 
4 Did you -- 
5 VENIREPERSON WAECHTER: Well -- 
6 MR. ROGERS: Did he tell you anything, I mean, that 
7 wasn't true? 
8 VENIREPERSON WAECHTER: No. The only thing I could 
9 do -- the only thing I could do -- I was told the only thing 
10 I could do is answer the question yes or no. 
11 MR. ROGERS: Right. 
12 VENIREPERSON WAECHTER: And he asked me -- the 
13 defense attorney asked me if there was a crack in the man's 
14 basement floor. The basement floor was cracked. I say yes. 
15 But I couldn't repeat that everybody else's floor's got a 
16 crack in it too. You know. 
17 MR. ROGERS: Did the lawyer who called you as a 
18 witness also -- 
19 VENIREPERSON WAECHTER: See. In fact, I asked him, 
20 I said, "Do you have a crack in your basement floor?" And he 
21 said, "Your Honor, the wrong one's asking questions." 
22 MR. ROGERS: Okay. Fair enough. All right. 
23 VENIREPERSON WAECHTER: Sorry about that, but 
24 that -- 
25 MR. ROGERS: That's all right. 
339 
 1 VENIREPERSON WAECHTER: -- that's what happened. 
2 MR. ROGERS: Now let me ask a follow-up question 
3 here, which is: If you're on this jury, and I'm 
4 cross-examining some witness called by the prosecutor, and 
5 you think I'm being unfair or tricky to that witness, are you 
6 going to somehow hold that against Mr. Ferguson? 
7 VENIREPERSON WAECHTER: No. To be honest, I'd 
8 probably be in contempt of court, because if this -- I'd like 
9 to repeat, if you block me in a corner, and I can't -- I got 
10 to say yes or no, that's awful hard for me to do if there's 
11 another part to it. 
12 MR. ROGERS: All right. 
13 VENIREPERSON WAECHTER: Sometimes there's an "if." 
14 MR. ROGERS: Sometimes there's an if. Okay. Thank 
15 you. 
16 I saw another hand here. 
17 VENIREPERSON IEPPERT: Carol Ieppert. 
18 MR. ROGERS: Yes. 
19 VENIREPERSON IEPPERT: Yes. It was a civil court. 
20 Civil case. 
21 MR. ROGERS: And you think you were treated fairly? 
22 VENIREPERSON IEPPERT: Yes. 
23 MR. ROGERS: And is there anything about that 
24 experience which might make you hold it against Mr. Ferguson 
25 if you don't like the way we cross-examine their witnesses? 
340 
 1 VENIREPERSON IEPPERT: No. 
2 MR. ROGERS: Okay. Thank you. 
3 THE COURT: Was your answer no? 
4 VENIREPERSON IEPPERT: No. 
5 THE COURT: Okay. Thank you. 
6 MR. ROGERS: I'm sorry. I am standing in your way 
7 probably, Judge. 
8 THE COURT: Well, no, I can see her; I just couldn't 
9 hear her. 
10 Mrs. Thomas, did you have your hand up? 
11 VENIREPERSON LAURA THOMAS: Yes. Years ago I was a 
12 vault teller in California, and we were robbed several times. 
13 And I was a witness for each of those different -- different 
14 times. And two out of three were good experiences; the other 
15 one was a poor experience. But I don't use -- I wouldn't use 
16 that in my life now. 
17 MR. ROGERS: And you wouldn't hold it against 
18 Mr. Ferguson. 
19 VENIREPERSON LAURA THOMAS: No. 
20 MR. ROGERS: Thank you. 
21 Mr. Ohmert. 
22 VENIREPERSON OHMERT: Yes. I was a witness called 
23 in by the FBI on a murder trial. 
24 THE COURT: Did you -- what kind of trial did you 
25 say, sir? 
341 
 1 VENIREPERSON OHMERT: Murder trial. 
2 THE COURT: That's what I -- 
3 MR. ROGERS: In federal court? 
4 VENIREPERSON OHMERT: Yes. 
5 MR. ROGERS: And where was that? 
6 VENIREPERSON OHMERT: It was actually held in 
7 Columbia. 
8 MR. CRANE: What's that? 
9 VENIREPERSON OHMERT: Part of it was in Columbia, 
10 and then another part was in Jeff City. 
11 MR. ROGERS: Okay. And were you treated fairly by 
12 the lawyers who cross-examined you? 
13 VENIREPERSON OHMERT: Yes, I was. 
14 MR. ROGERS: Is there anything about that experience 
15 which you might somehow hold against Mr. Ferguson if you 
16 don't like the way we cross-examine their witnesses? 
17 VENIREPERSON OHMERT: No, I wouldn't hold it against 
18 him, but I would hold it against you. 
19 MR. ROGERS: Okay. 
20 Okay. Mrs. Galloway. 
21 VENIREPERSON SUSAN GALLOWAY: I worked for our 
22 children's division for four years, and so at times I got 
23 subpoenaed for my testimony. 
24 MR. ROGERS: Okay. And were you ever cross-examined 
25 in a way that you thought was unfair? 
342 
 1 VENIREPERSON SUSAN GALLOWAY: No. 
2 MR. ROGERS: Is there anything about having 
3 testified during your work for the children's division that 
4 would affect the way you would view Mr. Ferguson if you 
5 didn't like the way we were treating the prosecutor's 
6 witnesses? 
7 VENIREPERSON SUSAN GALLOWAY: No. 
8 MR. ROGERS: Thank you. 
9 And Mr. Runge. 
10 VENIREPERSON RUNGE: When I was 18 years old, I was 
11 in an establishment that was selling liquor to minors. And 
12 they were -- there was an undercover agent in that 
13 establishment, and I had to come for state's witness against 
14 that lady that owned the bar. 
15 MR. ROGERS: Okay. And were you cross-examined by 
16 her or -- 
17 VENIREPERSON RUNGE: I was cross-examined by both 
18 the state lawyer and the -- her attorney. 
19 MR. ROGERS: Okay. And did her attorney treat you 
20 fairly? 
21 VENIREPERSON RUNGE: I think so, yes. 
22 MR. ROGERS: Is there anything about that that you 
23 would hold against Mr. Ferguson if you don't like the way we 
24 treat the state's witnesses in this case? 
25 VENIREPERSON RUNGE: I don't believe so, no. 
343 
 1 MR. ROGERS: Okay. 
2 Anybody I've missed over here? Anybody over here? 
3 Okay. 
4 Now, is there anybody here who would expect Ryan 
5 Ferguson to testify on his own defense and would somehow hold 
6 it against him if he didn't? I don't see any hands. 
7 Okay. Now I see one. Or was that just a stretch? 
8 VENIREPERSON SKIRVIN: Yeah, because if he's 
9 innocent, he ought to get up there and say something. 
10 THE COURT: Excuse me. Are you Number 41? 
11 VENIREPERSON SKIRVIN: Yeah. 
12 THE COURT: Thank you, sir. 
13 VENIREPERSON SKIRVIN: He needs to talk for himself. 
14 MR. ROGERS: And I'm not now talking about as a bit 
15 of tactical advice for his defense team, but as a matter of 
16 law and the United States Constitution that we all live 
17 under, even though you might want to hear from him, would 
18 you, if he didn't testify, tend to believe that he must be 
19 hiding something? Must be hiding his guilt with regard to 
20 this case? 
21 VENIREPERSON SKIRVIN: No. I would just think that 
22 he would want to talk, you know. 
23 THE COURT: You would just think that he was what? 
24 VENIREPERSON SKIRVIN: He would just want to get up 
25 there and get it off his chest. 
344 
 1 THE COURT: All right. 
2 MR. ROGERS: Okay. And can you think of any reason 
3 why somebody who was accused of a serious crime like this, 
4 who was not guilty, might still choose not to testify? 
5 VENIREPERSON SKIRVIN: Nope. 
6 MR. CRANE: Well, Judge, I'm going to object to that 
7 question. That opens up some issues that -- can we approach 
8 on that? 
9 THE COURT: You may. I will tell you that the 
10 juror's already answered the question. 
11 MR. CRANE: Oh. I couldn't hear him. Well, sorry. 
12 MR. ROGERS: He said no. 
13 MR. CRANE: Oh, you said no? Well, okay. Forget 
14 it. I guess I'll wait until you -- sorry. I couldn't hear 
15 you there. Sorry. 
16 MR. ROGERS: Mr. Skirvin, have you had any 
17 experience speaking in front of groups? 
18 VENIREPERSON SKIRVIN: No. 
19 THE COURT: Would you stand, sir? Thank you. 
20 VENIREPERSON SKIRVIN: No, I haven't. 
21 MR. ROGERS: Okay. Other than right now, today. 
22 VENIREPERSON SKIRVIN: Yes. 
23 MR. ROGERS: So you couldn't tell me how somebody 
24 would -- who didn't speak in front of groups might feel about 
25 getting up and talking in front of a bunch of strangers? 
345 
 1 VENIREPERSON SKIRVIN: Well, if my life was on the 
2 line I would. 
3 MR. ROGERS: No matter what? 
4 VENIREPERSON SKIRVIN: Yeah. I believe so. 
5 MR. ROGERS: You think everybody else is like that? 
6 VENIREPERSON SKIRVIN: No, sir. 
7 MR. ROGERS: Anybody else who shares 
8 Mr. Skirvin's -- Mr. Robinson? 
9 VENIREPERSON ROBINSON: I feel the same way. If you 
10 have nothing to hide, why not speak? 
11 MR. ROGERS: Okay. 
12 VENIREPERSON ROBINSON: You're hiding something if 
13 you don't want to talk. 
14 MR. ROGERS: Let me ask you this. Do you have any 
15 experience speaking in front of groups? 
16 VENIREPERSON ROBINSON: No. 
17 MR. ROGERS: Okay. I do it for a living. I -- this 
18 is not an uncommon situation for me. But studies have shown 
19 that fear of speaking in public is second of the fears that 
20 people in the United States have. After snakes, I think. 
21 And so people are sometimes really nervous about that. 
22 Let me ask you another one. If Mr. Ferguson does 
23 not testify, and if you were given an instruction from the 
24 Judge that no inference of guilt or any inference of any kind 
25 can be raised from the fact that he didn't testify, would you 
346 
 1 be able to follow that instruction? 
2 VENIREPERSON ROBINSON: Yes. 
3 MR. ROGERS: Even though you think there must be 
4 something being hid? You could still follow that 
5 instruction. 
6 VENIREPERSON ROBINSON: Yes. 
7 MR. ROGERS: How about you, Mr. Skirvin? Could you 
8 follow that instruction? 
9 VENIREPERSON SKIRVIN: Yes. 
10 MR. ROGERS: Okay. 
11 And let's look at the other side of that coin. If 
12 Mr. Ferguson decides to testify, how many people here would 
13 tend to discount what he has to say because he's the person 
14 who's on trial? He's got the most to lose of anybody in the 
15 courtroom. He's got the only thing to win or lose of anybody 
16 in the courtroom, personally. Anybody here who would tend to 
17 discount Mr. Ferguson's testimony because he's the defendant? 
18 Mr. Skirvin, that's a wiping of the brow; that's not 
19 a hand? Okay. Is that correct? 
20 VENIREPERSON SKIRVIN: Yeah. 
21 MR. ROGERS: Okay. 
22 How about you, Mr. Robinson? Would you tend to 
23 disbelieve anything he said since he's the guy who's on 
24 trial; he's the accused? 
25 VENIREPERSON ROBINSON: No. 
347 
 1 MR. ROGERS: Okay. 
2 THE COURT: There's a hand over here, Mr. Rogers. 
3 MR. ROGERS: Yes, sir. Mr. Moore. 
4 VENIREPERSON MOORE: Yes. Just as I said earlier, I 
5 think I would have -- I think the testimony would be suspect 
6 if they had something to gain by it. 
7 MR. ROGERS: That includes not only Mr. Ferguson, if 
8 he chose to testify, but any other witness who's getting some 
9 kind of deal? Is that a fair statement? 
10 VENIREPERSON MOORE: Well, I don't know about 
11 Mr. Ferguson's. I was thinking about the other codefendant. 
12 MR. ROGERS: Okay. Let's talk about Mr. Ferguson 
13 now, because, like I say, he is the person who is on trial. 
14 The outcome of this trial determines whether he goes home to 
15 his family or whether he goes to prison forever. Right? 
16 VENIREPERSON MOORE: Sure. 
17 MR. ROGERS: So if he were to testify, would you 
18 think, Well, hey, I can't really give much believability to 
19 what he says because he's the guy who's got it all riding on 
20 the line. 
21 VENIREPERSON MOORE: I understand your question. I 
22 don't think I would be as suspect of his testimony as of the 
23 other gentleman. 
24 MR. ROGERS: I appreciate that. And my next -- I 
25 got one more for you. Would you be able to judge his 
348 
 1 testimony and weigh it and evaluate the truthfulness or 
2 untruthfulness like you would that of other witnesses? 
3 VENIREPERSON MOORE: Yes. 
4 MR. ROGERS: Okay. Thank you. 
5 Anybody else who has a response to that question? 
6 Now let's talk about another kind of witness. And 
7 that is a witness who may have been convicted of a crime 
8 unrelated to those crimes charged against Mr. Ferguson. Is 
9 there anybody here who could not consider the witness's 
10 convictions of crimes in judging the believability of that 
11 witness? 
12 VENIREPERSON KELLY: I'm not sure -- 
13 MR. ROGERS: Okay. 
14 VENIREPERSON KELLY: I'm not sure I understand the 
15 question. 
16 MR. ROGERS: Okay. And for the record, you are 
17 Number 42, Miss Kelly; correct? 
18 VENIREPERSON KELLY: Yes. 
19 THE COURT: Would you stand, please, Miss Kelly. 
20 Thank you. 
21 MR. ROGERS: And you don't understand the question. 
22 VENIREPERSON KELLY: No. 
23 MR. ROGERS: Okay. If a witness were to testify, 
24 and the witness were to tell you that he had been convicted 
25 of various crimes, not related to the death of Kent Heitholt, 
349 
 1 other crimes, could you consider his convictions in terms of 
2 judging whether or not he's a believable person? 
3 VENIREPERSON KELLY: Well, why would that person be 
4 testifying if it's unrelated to this crime? 
5 MR. ROGERS: Testifying about -- his convictions are 
6 unrelated to his crime. Testifying about whatever he's 
7 testifying about. 
8 VENIREPERSON KELLY: If he's -- he was convicted of 
9 another crime -- 
10 MR. ROGERS: Right. 
11 VENIREPERSON KELLY: -- and he's testifying on 
12 Mr. Ferguson's behalf, or -- 
13 MR. ROGERS: Or against. Either one. 
14 VENIREPERSON KELLY: Either one? I would -- 
15 MR. ROGERS: And the question is: Could you 
16 consider the fact that he had been convicted in determining 
17 his believability? 
18 VENIREPERSON KELLY: Yes. 
19 MR. ROGERS: Okay. Would you necessarily disbelieve 
20 him just because he's been convicted? 
21 VENIREPERSON KELLY: No. 
22 MR. ROGERS: Okay. But you wouldn't necessarily 
23 believe him, just because he'd been -- 
24 VENIREPERSON KELLY: Well, I mean, it would depend 
25 on what he's saying. But I wouldn't discount him just 
350 
 1 because he was convicted of another crime. 
2 MR. ROGERS: All right. And you wouldn't -- 
3 although you would not automatically believe him either. 
4 VENIREPERSON KELLY: Right. 
5 MR. ROGERS: Like anybody else. 
6 VENIREPERSON KELLY: Right. 
7 MR. ROGERS: Okay. Thank you. 
8 All right. I have used way too much time. But I 
9 have one more sort of easy question. Many of you marked on 
10 your questionnaires that you had been on jury service before, 
11 in other cases. And this is addressed to those people, or to 
12 anybody who has been on jury service, but has not marked it 
13 on their questionnaire. The question is: Were you the 
14 foreman of the jury? Anybody here who has ever been a 
15 foreman of a jury before? I see no hands. 
16 Now, you've listened to me for a couple of hours 
17 now. You listened to Mr. Crane a couple hours. You listened 
18 to the Court for a while. Sometimes somebody's sitting there 
19 saying, "Well, you know, there's something that these people 
20 should probably know in deciding whether or not I want to be 
21 on the -- whether or not I am going to be on this jury, but 
22 they haven't asked me yet." Well, now I'm asking. Is there 
23 anything that you think that we should know in deciding 
24 whether or not you're on this particular jury? Speak now, or 
25 forever hold your peace. Okay. 
351 
 1 Miss McCullough? 
2 VENIREPERSON McCULLOUGH: Yes. 
3 MR. ROGERS: Did you indicate that you had -- did 
4 not know whether or not your job would reimburse you for jury 
5 duty? 
6 VENIREPERSON McCULLOUGH: Yes. 
7 MR. ROGERS: Do you have a union? 
8 VENIREPERSON McCULLOUGH: No. 
9 MR. ROGERS: Okay. 
10 VENIREPERSON McCULLOUGH: I work at a temp agency. 
11 THE COURT: I'm sorry. You need to stand. 
12 VENIREPERSON McCULLOUGH: I work at a temp agency. 
13 MR. ROGERS: Okay. 
14 VENIREPERSON McCULLOUGH: So I don't know. 
15 MR. ROGERS: All right. Thank you. 
16 VENIREPERSON PHILIPAK: Right here. I mean, I 
17 know -- I know where I work, they won't reimburse me for 
18 being off. 
19 MR. ROGERS: Right. And again, you mentioned that I 
20 think earlier; is that correct? 
21 VENIREPERSON PHILIPAK: I don't -- no. I think I 
22 mentioned it in my questionnaire when they sent it to me. I 
23 think. Heck, I don't know. 
24 MR. ROGERS: I think -- 
25 VENIREPERSON PHILIPAK: I don't know what -- I don't 
352 
 1 know what it said. No, I was kidding. 
2 MR. ROGERS: And your wife is disabled and you're 
3 the sole provider? 
4 VENIREPERSON PHILIPAK: Yes. So you did read it, 
5 huh? I didn't do it for nothing, did I? 
6 MR. ROGERS: You're right. 
7 Thank you. 
8 VENIREPERSON PHILIPAK: You're welcome. 
9 THE COURT: Ladies and gentlemen, thank you so much 
10 for your attention. We are going to take a recess at this 
11 time. 
12 The Court again reminds you of what you were told at 
13 the first recess of the Court. Until you retire to consider 
14 your verdict, you must not discuss this case among yourselves 
15 or with others, or permit anyone to discuss it in your 
16 hearing. You should not form or express any opinion about 
17 the case until it is finally given to you to decide. Do not 
18 read, view, or listen to any newspaper, radio, or television 
19 report of the trial. 
20 We will take a recess. We will consider those 
21 individuals who asked to be excused, as well as other 
22 matters, and we will let you know just as soon as we can 
23 whether you are finally excused or whether you are not 
24 finally excused. 
25 The jury may be in recess. 
353 
 1 If you'd keep them together, please. 
2 - - - 
3 The following proceedings were held out of the presence 
4 of the jury: 
5 THE COURT: Now, Mr. Crane has run in and out of 
6 this courtroom. I don't know if anyone else needs to take a 
7 short break before we do excuses. 
8 MR. CRANE: You're making an assumption on what I 
9 was doing out there. 
10 THE COURT: I have no idea what you were doing. 
11 MR. CRANE: But you're correct. You're correct. 
12 THE COURT: Are we having troubles downstairs still? 
13 DEPUTY COURT MARSHAL WERNER: We're okay. I'll talk 
14 to you about that here in just a minute. 
15 THE COURT: All right. 
16 I will tell the attorneys that we have someone 
17 downstairs that was creating somewhat of a disturbance 
18 because he didn't think he ought to come. And we finally I 
19 think confiscated his cell phone. 
20 DEPUTY COURT MARSHAL WERNER: Yes. 
21 THE COURT: No doubt he's called the governor, the 
22 U. S. Senators, and everyone else about this. 
23 MR. ROGERS: As long as he didn't call Jim Wyrsch, 
24 I'm okay. 
25 THE COURT: He probably doesn't know to call him. 
354 
 1 He knows I'm not a judge here. 
2 Anyway, why don't we take up excuse -- people that 
3 should be excused before we take up challenges for cause. 
4 And I -- let me read out the ones that I now remember that I 
5 should -- that I made notes to excuse. And you can let me 
6 know -- did someone say something to me? 
7 MR. ROGERS: No. 
8 THE COURT: Okay. Number 3, Mr. Philipak, who 
9 didn't get paid if he did not work. 
10 MR. CRANE: No objection. 
11 MR. ROGERS: No objection on him. 
12 THE COURT: All right. He's Number 3. 
13 MR. CRANE: Now wait a minute. Before I start 
14 marking people off, Judge, if we're all -- does that mean -- 
15 he doesn't object, I don't object, does that mean he's gone? 
16 THE COURT: Then he's excused. 
17 MR. CRANE: Okay. 
18 THE COURT: He's to be marked off. All right? Then 
19 Number 5 has already been excused, with consent of counsel. 
20 Mr. Orr, Number 8, is already excused, by agreement. And 9 
21 has already been excused, before we took up court. I would 
22 then tend excuse 11 and 12. Let me go one by one. Is there 
23 an objection to Number 11? 
24 MR. CRANE: No objection. 
25 MR. ROGERS: No, Your Honor. 
355 
 1 THE COURT: 11 is excused. What about 12? 
2 MR. CRANE: No objection. 
3 MR. ROGERS: No objection. 
4 THE COURT: 12 is then excused. Then coming back to 
5 the other side of the room, Mr. Declue, he is the one with 
6 the 15-year-old son who has ADHD and bipolar disease and his 
7 wife's out of town. 
8 MR. CRANE: No objection. 
9 MR. ROGERS: No objection. 
10 THE COURT: All right. 15 is excused. Mr. Thomas 
11 is the one that has an 8 and 9-year-old that he has to take 
12 care of. 
13 MR. CRANE: What's the number? 
14 THE COURT: 29. 
15 MR. ROGERS: No objection there, Your Honor, from 
16 the defense. He's the guy whose mother's on the jury. And 
17 he has -- 
18 MR. CRANE: Yeah. I remember him. I don't remember 
19 him being in as bad a shape as -- 
20 THE COURT: His problem was is that his wife I think 
21 left for work at 6 or 6:30 in the morning, and he had to take 
22 the kids at 7:15 or something to the bus stop, and there was 
23 no one -- 
24 MR. CRANE: Yeah, but he didn't -- I didn't remember 
25 him indicating that there were no other options. 
356 
 1 THE COURT: I think he did. I asked him that 
2 specifically. 
3 MR. CRANE: Okay. Well, that's -- neither -- I'm 
4 not going to go against you, Judge, but I -- we would not 
5 agree to Number 24 being -- 29, sorry -- 
6 THE COURT: 29 is the number. 
7 MR. CRANE: -- being stricken for cause. 
8 THE COURT: I'm going to -- I'm not going to strike 
9 him for cause. I'm going to excuse 29. Number 30 has 
10 already been excused because of his felony convictions. 
11 Mr. Black, who is Number 31, is an individual who takes care 
12 of a three-month-old baby Monday, Wednesday, and Friday, and 
13 doesn't have anyone else to look after that child. 
14 MR. CRANE: I would agree there. 
15 MR. ROGERS: Would agree there too, Your Honor. 
16 THE COURT: 31 then is excused. My next excuse was 
17 Mary McCullough, who's not going to be paid if she doesn't 
18 work. At least that's what she thought. 
19 MR. ROGERS: And I asked her, Your Honor, and she 
20 said she worked for a temp agency, so I know she won't. So I 
21 do not object to that. 
22 THE COURT: What about the state? 33, 
23 Miss McCullough? 
24 MR. CRANE: Okay. Yeah. We'll agree to that. 
25 THE COURT: All right. 33 is excused. Let's see. 
357 
 1 One that I didn't mention before, but I did look in my notes, 
2 Miss Betts, is Number 37. She has a 14-year-old child, and 
3 her husband travels, and he is to be in I guess Mount Vernon. 
4 She mentioned he would not be here. If she were gone, there 
5 would be no one to look -- not that a 14-year-old needs the 
6 same kind of looking after that a three-month-old, but I sure 
7 wouldn't want to leave a kid like that at home alone for a 
8 week. 
9 MR. ROGERS: It would be party central. 
10 THE COURT: Yeah, it might be, or worse. And see -- 
11 she's Number 37. Does state have any objections to excusing 
12 her? 
13 MR. CRANE: I think she said she didn't have any 
14 help with her 14-year-old boy. 
15 THE COURT: Does the defense object? 
16 MR. ROGERS: No, Your Honor. 
17 THE COURT: 37 then is excused. Miss Bennett, who 
18 takes care of the granddaughter. And everyone else in the 
19 family works. She's Number 43. 
20 MR. CRANE: I don't have -- let me -- I don't have 
21 any problem with 43 being stricken. 
22 THE COURT: The defense? 
23 MR. ROGERS: No objection, Your Honor. 
24 THE COURT: 43 is excused. And -- let's see. 
25 Mr. Riney has already been excused. He is 46. He is one of 
358 
 1 the bailiffs. And finally, but not -- was Mr. Straughter, 
2 who might be, in fact, stricken for cause, but has also 
3 talked about taking care of his disabled wife and being a 
4 good househusband at home taking care of all the chores. 
5 Does the state object? 
6 MR. ROGERS: And the grandchildren. 
7 MR. CRANE: Well, I liked -- I liked Mr. Straughter, 
8 but. By God, he's my kind of guy. But I understand he did 
9 say he didn't have any options. That was under my inquiry, 
10 so. 
11 THE COURT: All right. He will be excused. 
12 MR. ROGERS: I have no objection, by the way, Your 
13 Honor. 
14 THE COURT: Okay. I suspected that you wouldn't. 
15 Now let me tell the bailiff, marshals, which ones 
16 can actually be excused now. And they can go home and not 
17 have to come back, with thank-yous to those people. And some 
18 of them may already be gone. 
19 DEPUTY COURT MARSHAL WERNER: Okay. 
20 THE COURT: 3, 5, 8, 9, 11, 12, 15, 29, 30, 31, 33, 
21 37, 43, 46, and 50. 
22 MR. CRANE: And now 36 is already gone. 
23 THE COURT: Let's see. Did I -- 
24 MR. ROGERS: 36 was the one who didn't show up this 
25 morning. 
359 
 1 MR. CRANE: Yeah, just for the record, make sure she 
2 mentioned -- 
3 THE COURT: 36 is absent. I'm not excusing 36. 36 
4 may have the sheriff come after him. 
5 MR. CRANE: There is no 36. 
6 MR. ROGERS: 36 is downstairs now. That's my guess. 
7 THE COURT: 36 came in? 
8 MR. ROGERS: I don't know. 
9 MR. CRANE: Is that the one that came in before the 
10 other group? Anyway, there isn't a 36. 
11 THE COURT: 36 is not in our group. She was the 
12 only absent one that we showed in our group. 
13 MR. ROGERS: I think it's a he. I think Jody's a 
14 he. 
15 THE COURT: Jody is a he? It is? Someone told me 
16 it was a she. But -- whoever Jody is -- Jody may -- 
17 MR. ROGERS: Jody is Jody. You can see why Jody 
18 didn't come. Jody has social anxiety disorder. 
19 THE COURT: All right. So I'm going to permit our 
20 bailiff to release these jurors finally. They don't have to 
21 come back for anything. 
22 Is the state ready to make any challenges for cause? 
23 MR. CRANE: Yeah. 
24 THE COURT: All right. 
25 MR. CRANE: Go ahead with that, Judge? 
360 
 1 THE COURT: Yes. 
2 MR. CRANE: And just name them and not state my 
3 basis? 
4 THE COURT: State's challenges for cause should be 
5 named by number, hopefully in numeric order, so I can follow 
6 them. 
7 MR. CRANE: All right. 
8 THE COURT: And then we will come back to the 
9 defense. And if the defense agrees with it, you needn't make 
10 an argument. If the defense does not agree with it, then you 
11 will have to make an argument. 
12 So let me hear what the state's challenges for cause 
13 are. 
14 MR. CRANE: Okay. Number 2, Robinson. 
15 THE COURT: All right. 
16 MR. CRANE: He was emphatic -- 
17 THE COURT: You don't need to tell me why. 
18 MR. CRANE: All right. 
19 THE COURT: Just give me the number. 
20 MR. CRANE: Number 2, Robinson. 
21 THE COURT: All right. 
22 MR. ROGERS: Agreed. 
23 THE COURT: Okay. 
24 MR. CRANE: So can we mark them off? 
25 THE COURT: I will go through -- anyone that the 
361 
 1 defense agrees to, you may assume that he is struck for 
2 cause. 
3 MR. CRANE: Okay. 
4 THE COURT: Next one. 
5 MR. CRANE: Number 14, Norton. 
6 THE COURT: Robert Norton. 
7 MR. ROGERS: I object to that, Your Honor. 
8 THE COURT: Okay. We'll come back to Mr. Norton. 
9 Go ahead. 
10 MR. CRANE: Number -- oh. Number 16, Caviness. 
11 THE COURT: All right. 
12 MR. CRANE: That's a hardship. She indicated -- 
13 THE COURT: Yes. I realize that she said she needed 
14 to go someplace this weekend. I didn't consider that as much 
15 a hardship as leaving a 14-year-old alone for five days or 
16 six days. But I'll -- if you want -- 
17 MR. CRANE: She said she wouldn't be back 'til 
18 Monday on a business trip. 
19 THE COURT: Yeah, I understand that. 
20 MR. ROGERS: I'm going to take the Fifth on that 
21 one, Judge. 
22 THE COURT: All right. We can come back to that 
23 one. Keep going. 
24 MR. CRANE: Okay. Let me find that one again. 
25 Let's see. 
362 
 1 Number 22, Harris. 
2 THE COURT: Yes. Keep going. Oh, well. Harris? 
3 MR. ROGERS: I'm -- I would object to that, Your 
4 Honor. 
5 THE COURT: Okay. Keep going then. 
6 MR. CRANE: What did you say? 
7 THE COURT: He objects. 
8 MR. ROGERS: I object to that. 
9 MR. CRANE: Okay. 23, Gibbs. 
10 THE COURT: Okay. 
11 MR. ROGERS: We need to consult on that, Your Honor. 
12 We'd object to that, Your Honor. 
13 THE COURT: All right. There's an objection to 23. 
14 Keep going. 
15 MR. ROGERS: It's a group objection. 
16 MR. CRANE: So we're going to come back to 23 too? 
17 THE COURT: Yeah. You have to come back to 23. 
18 MR. CRANE: Okay. 
19 Okay. Let's see here. 34, Headrick. 
20 MR. ROGERS: We object to that, Your Honor. 
21 THE COURT: All right. 
22 MR. CRANE: 35, Moore. 
23 MR. ROGERS: We'd object to that also. 
24 THE COURT: All right. 
25 MR. CRANE: 52 -- 
363 
 1 THE COURT: Donna Fields? 
2 MR. CRANE: -- Fields. 
3 Wait, wait, wait a minute. Hang on a minute, Judge. 
4 We're trying here. Hang on just a second. 
5 Just -- 
6 (Pause.) 
7 THE COURT: All right. Are you looking, Mr. Crane, 
8 to see -- 
9 MR. CRANE: Yeah. I -- I think that -- okay. 52. 
10 THE COURT: Donna Fields? 
11 MR. CRANE: The last one, yeah. 
12 THE COURT: Yes. And what is the defense position 
13 on Donna Fields? 
14 MR. ROGERS: I think we object to that too, Your 
15 Honor. 
16 THE COURT: All right. 
17 I will mention that in the Galloways, evidently they 
18 take care of kids that are placed with them from the state. 
19 And they've tried to get someone to come in and give respite 
20 care, and only one of them can go. I'm happy to excuse -- I 
21 mean, if there's a challenge for cause to one or the other, I 
22 don't know if the defense has one, I'll take it up. But I 
23 wanted to make you aware that after it's said and done, 
24 probably one of them is going to be released by the Court, 
25 either Mr. or Mrs. Galloway. But that has nothing to do now. 
364 
 1 And I understand the defendant may have a challenge for cause 
2 to one of the two. 
3 So, let me hear -- so as I understand it, the 
4 defense does not object to 2 being stricken. Has no position 
5 on 16. 
6 MR. ROGERS: We'll agree to that, Your Honor. 
7 THE COURT: You're agreeing to 16? 16 then would be 
8 stricken. And you object to striking 14, 22, 23, 34, 35, and 
9 52. 
10 MR. CRANE: I thought -- oh, okay. I'm sorry. I'm 
11 sorry. 
12 THE COURT: So, you may have your say on those 
13 jurors. 
14 Number 14. Why is it that you wish to strike 14? 
15 MR. CRANE: Okay. 
16 THE COURT: That's Mr. Norton. 
17 MR. CRANE: Yeah. Mr. Norton demonstrated severe 
18 problems with the experience that he had today. He went on 
19 for an extended period about how he was mistreated. And I'm 
20 sure not saying that happened, but he was very upset. And it 
21 was -- actually, I don't think it was responsive to a 
22 question that I had asked. So, based on that, I think he 
23 demonstrated an inability to be fair and impartial with 
24 respect to his being involved with the judicial system. And, 
25 you know, I mean, if we need to go back and look at the 
365 
 1 record on that, he went on probably for several minutes about 
2 his unpleasant experience. 
3 THE COURT: You may be heard. 
4 MR. ROGERS: None of that translates into him being 
5 unfair to the state in this case. He was able to point out 
6 that that was, in fact, the state -- the local authorities 
7 and had nothing to do with Boone County. And Mr. Crane told 
8 them what good guys the people in Boone County were. And 
9 he -- I don't think he gave a single answer which 
10 disqualifies him as a witness. I don't think the state is 
11 entitled to a jury of people who think that all law 
12 enforcement officers are always perfect. 
13 THE COURT: I'm going to look at my notes. How's 
14 that? 
15 MR. ROGERS: Sounds great. 
16 THE COURT: I note that he indicated he had failed 
17 to appear for jury service. He was picked up by the sheriff. 
18 He feels that he was treated like a criminal. Those were his 
19 words, not mine. By that system. He had things to say in 
20 other areas, but this is the point that the state is making, 
21 that he -- 
22 MR. CRANE: Well, yeah, he did have things to say in 
23 other areas. Obviously we think this was the most dramatic. 
24 And I think that the Court, the trial judge in this case, has 
25 the discretion to evaluate the demeanor and responsiveness of 
366 
 1 that venireperson and assess their ability to be fair and 
2 impartial. 
3 THE COURT: I'm going to sustain the challenge for 
4 cause to 14. 
5 22. 
6 MR. CRANE: Okay. Yeah. Just a minute. Let me 
7 make -- 15 and 16 are gone, I believe you indicated, Judge. 
8 THE COURT: Well -- 
9 MR. CRANE: Declue just -- or Caviness just went; 
10 right, Charlie? 
11 MR. ROGERS: Right. I just agreed to that. 
12 MR. CRANE: Okay. 22. 
13 THE COURT: Is Terry Harris. 
14 MR. CRANE: Okay. He -- no work, no pay. He 
15 indicated a -- and I recognize that there were times when 
16 Mr. Harris went back and forth, but initially, in the 
17 question about his experience with law enforcement, he said 
18 he had a particularly bad experience when the police showed 
19 up I think at his house, and it was the wrong place. He said 
20 that that would, and I'm paraphrasing, that would -- is 
21 something that he would have trouble setting aside and being 
22 fair and impartial. 
23 Now, just to be fair to the defense, I think he did 
24 maybe get back up later and said something about, "Well, you 
25 know, maybe that -- maybe I wouldn't have a problem with 
367 
 1 that." He also, though, got into -- 
2 (Pause.) 
3 Judge, it's my recollection he said something about 
4 having problems with the plea agreement with the witness. He 
5 indicated also that he has a court date, but that's -- that's 
6 a week after this one. 
7 THE COURT: He has one on the 24th. 
8 MR. CRANE: That's not next week; right? 
9 So I -- you know, I don't know. I could have 
10 sworn -- I wasn't taking notes up there. I could have sworn 
11 he said something about the plea agreement, is what's the 
12 problem. But I guess if I can't document it, I'm out of luck 
13 on that. He did talk about the police problem, and said he 
14 couldn't be fair and impartial due to that experience. And 
15 he also said no work, no pay. 
16 MR. ROGERS: With regard to the no work, no pay, 
17 Judge, if we're going to grant that one, I don't think we're 
18 going to have a panel qualified out of both groups. But 
19 having said that, with regard to the police experience, he 
20 did say that the police came in and pinned him and his 
21 fiancee to the wall, and they had the right address, but the 
22 wrong town, I believe was his words. 
23 THE COURT: True. 
24 MR. ROGERS: But then he said, "I don't have 
25 anything bad about the cops. I don't hate the cops." And he 
368 
 1 said, if they were under oath, he would assume they were 
2 telling the truth, which I thought made a bit of 
3 disqualifying answer, until I was able to ask questions about 
4 whether he would treat cops different from anybody else, and 
5 I don't think he would. And so I think he is certainly a 
6 qualified witness. 
7 THE COURT: You mean a juror. 
8 MR. ROGERS: Juror. Yes. Exactly what I mean. 
9 THE COURT: You know, I've excused other people that 
10 either said they were self -- and reported that they were 
11 self-employed, and if they didn't work, they didn't get paid. 
12 And for that reason, I feel I probably -- I missed that on 
13 his -- I had notes that he did say he was self-employed and 
14 didn't earn money. And if I excused some on that basis, I 
15 feel that I need to at least excuse him on that basis. I 
16 don't think I would strike him for cause, but I would excuse 
17 him, as Number 22, to be excused. And I missed him. 
18 23, who is Dustin Gibbs. 
19 MR. CRANE: 23, Gibbs, on the Court's inquiry and on 
20 mine, indicated that he had to take an exam I believe on 
21 Thursday -- a week from -- next week, Thursday. Said that 
22 this was some kind of a qualification for being an RN. That 
23 it would be an extensive period before he could sit for the 
24 exam again. That it was a major problem. If he missed it, 
25 he had no other options. He generally demonstrated being 
369 
 1 preoccupied with the need to take that examination. 
2 THE COURT: And it was for a CNA, which is a 
3 certified nursing assistant. 
4 MR. CRANE: Yeah, it's a nurse thing, yeah. 
5 THE COURT: Yeah. 
6 MR. ROGERS: Your Honor, I don't think he said that 
7 he had no options. I think what he said was that he was 
8 scheduled to take it next Thursday. That he was required to 
9 take it within 180 days of having become employed there. I 
10 would note that on his questionnaire, he wasn't working 
11 there. He listed his employment as being an Imo's delivery 
12 driver. 
13 THE COURT: He obviously has a new job. 
14 MR. ROGERS: But what I'm trying to say is that he's 
15 got some time to get the test. I'm sure they don't just give 
16 it once every blue moon. 
17 MR. CRANE: Our notes indicate that he said no other 
18 options that he knows of. With respect to this exam and the 
19 need to take it on Thursday. 
20 THE COURT: All right. I'm overruling the challenge 
21 to 23. 
22 34. Mr. Headrick. 
23 MR. CRANE: Headrick stated that he would require 
24 the state to present physical evidence, you know, that was 
25 the forensic evidence, for him to find the defendant guilty. 
370 
 1 MR. ROGERS: I think he was pretty thoroughly 
2 rehabilitated before I got up there. And I think once I 
3 discussed with him and talked to him about using physical 
4 evidence and all the evidence and weighing the testimony of 
5 evidence, that he was certainly able to follow the law. 
6 THE COURT: Challenge to 34 is sustained. I think 
7 he was equivocal in his -- if you want to call it 
8 rehabilitation. 
9 35, Jack Moore. 
10 MR. CRANE: He did not -- I mean, generally 
11 speaking, without belaboring it, he didn't like the idea of a 
12 plea bargain with the codefendant at all. He stated that on 
13 the state's voir dire and the defense voir dire. Even though 
14 I don't think Mr. Rogers was questioning him on that, he 
15 stated that on his own. He also had great difficulty with 
16 the idea of leaving his wife, who is somewhat of an invalid. 
17 I remember hearing something about knees and she stove up 
18 some kind of way or another, and that that would be a problem 
19 to leave her for a week. But the main thing was, he -- he 
20 repeatedly said he didn't like the idea of a deal with the 
21 codefendant. 
22 MR. ROGERS: Your Honor, he never said that he would 
23 automatically reject the testimony just because there was a 
24 deal given, or that he could not weigh and evaluate it. I 
25 think it's certainly proper to have some questions about why 
371 
 1 somebody who agrees to testify on behalf of the state and 
2 admits their own guilt is doing so. 
3 With regard to the wife situation, it's just -- I 
4 think he sort of jokingly, in response to the Court's 
5 question about whether his wife was disabled, he sort of 
6 said, "Oh, she's just got some bad knees," or words to that 
7 effect. He didn't claim that she was an invalid. And he 
8 just would not feel comfortable leaving her alone, due to the 
9 length of the time they've been married, and they've 
10 apparently never been apart. 
11 MR. CRANE: Judge, our records indicate, and, you 
12 know, I don't have the Court's record in front of me, but 
13 that he was asked by -- I asked him if his problem with a 
14 plea agreement with the defendant would impair his ability to 
15 be fair and impartial. And he said yes, he would have a 
16 problem being fair and impartial, given that concept is in 
17 this case. 
18 THE COURT: 35 is struck for cause. 
19 52. Donna Fields. 
20 MR. CRANE: Okay. She said that she would have 
21 problems sitting in judgment of a fellow person, human being. 
22 I can't remember the exact type of creature, but it was a 
23 person. 
24 THE COURT: You're through, Mr. Crane? 
25 MR. CRANE: Oh, I didn't hear what you said. 
372 
 1 MR. ROGERS: Oh, I didn't know -- 
2 THE COURT: He didn't say anything. 
3 MR. ROGERS: -- you were done. 
4 MR. CRANE: Yeah, I'm done. 
5 MR. ROGERS: Okay. She did specifically say that 
6 she could do it. She said it would be difficult. I think 
7 that describes maybe the ideal juror. 
8 THE COURT: The word she used was "feels uneasy." 
9 MR. CRANE: That's true. And what I did was 
10 collectively, I think it was Number 3 and Number 12 and 
11 Number 52, I believe I had a follow-up question: "All of you 
12 feel like you wouldn't be able to sit in front of your fellow 
13 human being. Anybody else feel that way?" Now if I didn't 
14 go right at her again, I'll -- I won't argue that any more. 
15 THE COURT: The challenge to 52 is overruled. 
16 Does the defendant have any challenges for cause? 
17 Well, let me -- let me look at my -- I have that 21 
18 have either been excused, stricken, or absent. Is that what 
19 you get? 
20 MR. KNIGHT: I got 30 left. 
21 THE COURT: You have 31? 
22 MR. KNIGHT: 30 left. 
23 MR. CRANE: Yeah. Yeah. 
24 MR. ROGERS: That's what we get. 
25 THE COURT: Is that -- 
373 
 1 MR. CRANE: Yeah. 
2 THE COURT: So that's -- okay. 
3 MR. ROGERS: There's the -- 
4 THE COURT: Well -- 
5 MR. CRANE: Gives us two alternates, if -- you know, 
6 go ahead and do what you're going to do. 
7 THE COURT: Well, I think you have to represent the 
8 defendant in the way you feel you need to. 
9 MR. CRANE: Absolutely. 
10 THE COURT: And I would not in any way encourage you 
11 to forego a challenge for cause because you want to get 
12 everything out of this panel. I'm -- I want you to do what's 
13 best for your client. 
14 MR. ROGERS: Yeah. And I'll tell you, Your Honor, 
15 there is a situation that you already brought to our 
16 attention, which was with regard to the Galloways. 
17 THE COURT: There is the Galloways. 
18 MR. ROGERS: And there is a possible challenge for 
19 cause with regard to Mrs. Galloway, Number 28. 
20 THE COURT: Well -- 
21 MR. ROGERS: But -- 
22 MR. CRANE: Hey. What were you all saying on the 
23 Galloways? They can't -- they said they couldn't take care 
24 of the kids if they're both gone? 
25 THE COURT: Evidently they -- 
374 
 1 MR. ROGERS: They have foster kids. 
2 MR. CRANE: Okay. 
3 MR. ROGERS: And they can't get anybody who's 
4 certified to take the foster kids. 
5 MR. CRANE: Okay. We'll go ahead and -- go ahead 
6 make your strikes for cause, and we'll see what we got on 
7 alternates. Go ahead and make your strikes for cause. I 
8 mean, are you going to make any? 
9 MR. ROGERS: Yeah. I'm going to make Mrs. Galloway, 
10 Number 28. 
11 THE COURT: Is that the only one? 
12 MR. ROGERS: Yes. 
13 THE COURT: All right. 
14 MR. CRANE: Okay. Well, I -- can you just state -- 
15 okay. I'll object. What's your reason? Go ahead. 
16 MR. ROGERS: Oh. First of all, I'd ask she be 
17 excused for hardship, because neither -- either she or 
18 Mr. Galloway has to be home to take care of the foster kids. 
19 And she's the logical person, being the former children's 
20 division worker. 
21 MR. CRANE: All right. Okay. All right. And so 
22 you're not going to strike Mr. Galloway for cause. 
23 MR. ROGERS: Right. We're not going to strike 
24 Mr. Galloway for cause. 
25 MR. CRANE: Okay. We have no objection to 
375 
 1 Miss Galloway, Number 28. 
2 THE COURT: Susan Galloway is struck for cause. And 
3 it really is hardship. It's more an excuse. 
4 MR. ROGERS: It is more of a hardship. Exactly. 
5 There was a cause, but we didn't need to state it. 
6 MR. CRANE: It's going to be a hardship on 
7 Miss Galloway. She's got to go home by herself. 
8 THE COURT: I don't know how many kids she has. She 
9 probably has to take care of them. 
10 Is that -- does that conclude the -- 
11 MR. ROGERS: Let me -- 
12 THE COURT: And I want to make sure that we still 
13 have the ones we had. 
14 Do you have a yellow highlighter there that I 
15 might -- 
16 CIRCUIT CLERK HOUSTON: I have a pink one. 
17 THE COURT: I don't care what color, just as long as 
18 I can -- I don't care if it's pink for breast cancer week or 
19 whatever. 
20 Let me tell you which ones I now have. Just so that 
21 we'll all be on the same page. I show that Brown is still in 
22 the group. Clark is still in the -- these are their last 
23 names. Gales is still in the group. Waechter is still in 
24 the group. Pund is still in the group. Stonebarger is still 
25 in the group. Caviness -- 
376 
 1 MR. ROGERS: No. She's gone. 
2 THE COURT: -- is struck. Burkemper is in the 
3 group. Davenport. Kaimann. Carter. Ieppert. Gibbs was 
4 one that had been a challenge for cause, I believe. 
5 MR. ROGERS: Overruled. 
6 THE COURT: And was overruled. Thomas. Laura 
7 Thomas. Ohmert. Stief. Did he pronounce it Seabaugh? 
8 MR. ROGERS: Seabaugh. 
9 THE COURT: Seabaugh. Wubker. I don't remember him 
10 saying anything. 
11 MR. ROGERS: Very little. 
12 THE COURT: Moretto. Dale Galloway. Krieg. 
13 MR. CRANE: Oh, I just got lost. Wait a minute 
14 here. 
15 Headrick? 
16 THE COURT: We're talking -- 
17 MR. CRANE: I didn't get them marked off. 
18 THE COURT: No. These are people that are still on. 
19 MR. CRANE: Yeah. No, I screwed up. I didn't have 
20 34 and 35 marked off. Sorry to hold you up. I got -- I'm 
21 with you. Sorry. 
22 MR. ROGERS: You were making the correct rulings on 
23 your own challenges? Is that what you're saying? 
24 THE COURT: All right. So we're down -- have you 
25 gotten Moretto, Galloway, and Krieg as still being on the 
377 
 1 list? 
2 MR. CRANE: Yeah. 
3 THE COURT: Skirvin, Kelly, Runge, Schisler, Day, 
4 Miller, Delk, Gaines, and Fields are the ones that I have 
5 still in the running. Is that -- does counsel agree? 
6 MR. ROGERS: That's the ones I have, Your Honor. 
7 THE COURT: Okay. And that gives us a total of -- 
8 MR. ROGERS: 29. 
9 THE COURT: How many? 
10 MR. ROGERS: 29. 
11 THE COURT: 29? Well, I must be mistaken then. 
12 MR. CRANE: What did you have, Judge? 
13 THE COURT: Well, I have more. 
14 MR. KNIGHT: I've got 29. 
15 THE COURT: You have 29. Maybe I -- let's see. You 
16 have -- if we have -- if we have 28 people -- if we have 28, 
17 we can get two alternates out of 28. Because we get six and 
18 six. And the rule, the statute, reads that you get -- each 
19 one get a challenge for every two alternates. It has always 
20 been my policy, when trying cases, to give each attorney a 
21 strike. You know, to take three and give each attorney a 
22 strike. However, that's not what the statute says. The 
23 statute, in 494, I believe it's 485, 495, gives you -- each 
24 one one strike for every two alternates. And if we play by 
25 those rules, which are the rules that everyone -- I mean, you 
378 
 1 get two alternates out of 28 jurors. 
2 MR. CRANE: Okay. And -- well, wait a minute. We 
3 talked about this this morning. You're saying that you're 
4 okay with going with two alternates instead of three. 
5 THE COURT: I would go with two alternates. The 
6 Court would. I would not go with one alternate. 
7 MR. CRANE: Okay. 
8 MR. ROGERS: I'm happy with two alternates. 
9 MR. CRANE: And we can do that with this bunch. 
10 THE COURT: We can do that with this bunch. Praise 
11 the Lord. All right. 
12 MR. CRANE: So all we need to know now is for sure 
13 who the alternates are. 
14 MR. KNIGHT: Yeah. We're striking through where? 
15 THE COURT: Fields actually would be excess. So let 
16 us -- gentlemen, the -- you will make your six strikes each 
17 out of Jurors 1, 4, 6, 7, 10, 13, 14, 15 -- 
18 MR. KNIGHT: Wait. Whoops. No, no, no. 
19 THE COURT: I'm sorry. 
20 MR. ROGERS: Over my objection. 
21 THE COURT: Oh, wait a minute. Let's see. 
22 MR. KNIGHT: 10, 13, and 17. 
23 THE COURT: Let me look and see. Mr. Norton is off. 
24 I'm -- I'm having problems here. Just a second. 
25 MR. CRANE: You're -- I did that a minute ago too. 
379 
 1 Just because you didn't get anybody marked off, is what 
2 throws you. 
3 THE COURT: Well, no. I show him as off for cause. 
4 I know what I did. 13, he's 14, 15, 16. So it would be 17, 
5 and then 18, 19, 20, and 21. And that gives us 11 jurors 
6 there; correct? And then we would go to 23, 24, 25, 26, 27, 
7 28. 
8 MR. CRANE: No. I had 28 gone. 
9 THE COURT: I'm sorry. You did. I'm numbering them 
10 consecutive. 
11 All right. 28, 29, 30, 31. It would be 32. 
12 MR. CRANE: Is in. 
13 THE COURT: Is in. 
14 MR. CRANE: Yeah. 
15 THE COURT: Then to 38, 39, 40, and 41. That gives 
16 us 21. 42, 44, and 45 would make up the original panel. 
17 Miss Schisler is the last one on the regular panel. And then 
18 47, 48, 49, and 50 would be the alternate panel. And each of 
19 you may make -- 
20 MR. CRANE: No. 50's gone, Judge. 
21 THE COURT: I'm sorry. 51. 
22 MR. CRANE: Okay. 
23 THE COURT: Okay. 
24 MR. CRANE: So wait a minute. What are you going to 
25 do with 52? Just officially. 
380 
 1 THE COURT: 52 will be excused as excess, as long as 
2 I know that no one has passed out and is sick by the time we 
3 get all the jurors back in here. I'm not -- I'm not going to 
4 release the excess. 
5 MR. ROGERS: Your Honor, Mr. Gaines is the one 
6 that's doing the online presentation. 
7 MS. BENSON: For 80 people. They just went online. 
8 MR. ROGERS: Tuesday morning or whenever it was. 
9 THE COURT: I think it was Monday morning. 
10 MR. ROGERS: Monday morning. Sometime inconsistent 
11 with our -- 
12 THE COURT: With our trial. 
13 MR. CRANE: Well, yeah, but, you know, Mr. Harris -- 
14 oh, he's gone? 
15 MR. ROGERS: Yes. 
16 MR. CRANE: I guess I'll shut up on that. Well, 
17 wait a minute. No, hold it. Hold it. Here's an analogy. 
18 Mr. Gibbs, he's not going to be able to be a nurse for 
19 longer. 
20 MR. ROGERS: Sure, he can. He's a nurse right now. 
21 MR. CRANE: And the other guy, the other guy, other 
22 people aren't going to hear some PowerPoint deal that he's 
23 going to do, with all due respect to him. But, I mean, I 
24 don't necessarily feel like there's any great difference 
25 between Mr. Gibbs and Mr. Gaines, other than the idea that 
381 
 1 Mr. Gibbs is in worse shape. 
2 So to be consistent -- I mean, golly. The guy's not 
3 going to be able to go on about his business. Got to take a 
4 test. What did he say? Another 120 days to sit for it. 
5 THE COURT: Well, he didn't know how long it would 
6 be, but. I did not -- I really think that business issues 
7 are things that people should have to deal with, unless 
8 they're the sole provider of a family and they don't get -- 
9 they get zip if they don't work. I excuse those kind of 
10 people. And I'm not going to -- 
11 MR. CRANE: Mr. Gaines is still going to get paid. 
12 THE COURT: I'm not going to excuse Mr. Gaines. If 
13 someone feels he ought to be taken off, you can take him off. 
14 But I'm going to over -- you're officially moving to strike 
15 him? 
16 MR. ROGERS: I'm officially moving to excuse him. 
17 MR. CRANE: Hey, what was his number again? 
18 Kathryn? 
19 MR. ROGERS: Number 51. 
20 MR. CRANE: 51? Okay. 
21 THE COURT: And I will show that defendant moves to 
22 excuse Juror 51 for hardship. Motion is overruled. 
23 I mean, he would be an alternate, if he were 
24 serving. So if someone were really a nice person and didn't 
25 care, they might agree, since he's an alternate, it would be 
382 
 1 pretty annoying to have to set through the whole trial. 
2 MR. ROGERS: Second alternate. 
3 THE COURT: Yes, he would be a second alternate if 
4 he serves. So, anyway -- 
5 MR. ROGERS: And you still got a strike to use on 
6 Mrs. Fields anyway. 
7 THE COURT: Well, Mrs. Fields is off. 
8 MR. ROGERS: Well, not if we excuse him. 
9 THE COURT: Oh. Okay. 
10 MR. ROGERS: I'm still -- I'm making my pick with 
11 you, Judge. 
12 THE COURT: All I'm saying is: I will give the 
13 state -- 
14 MR. CRANE: The opportunity to be benevolent? Is 
15 that what you're saying? 
16 MR. ROGERS: That's exactly -- 
17 THE COURT: A kinder, more gentle person. I'm not 
18 suggesting you have to do that, Mr. Crane. I'm just saying, 
19 he is -- 
20 MR. CRANE: Well, I tell you what. Can you -- can 
21 you let me talk with my people about that? And we'll -- can 
22 I just have a minute on that? 
23 THE COURT: Sure. You can have five minutes. We'll 
24 take a break. 
25 MR. CRANE: It takes me a while to work up that 
383 
 1 kinder, gentler -- all right. 
2 THE COURT: Gentlemen. Just a second. We do have a 
3 number of people waiting downstairs, some of whom are really 
4 angry at having to be here and be here over three hours -- 
5 MR. CRANE: Okay. We'll get on it, Judge. 
6 THE COURT: -- and wasting their time. Is it 
7 agreeable that we tell them to be released and thank them for 
8 coming? 
9 MR. CRANE: I thought you were going to make sure 
10 nobody fell out. 
11 THE COURT: Well, I'm talking in this case. I'm not 
12 releasing an -- an excess in this case. In this group. 
13 MR. CRANE: I thought you weren't going to release 
14 anybody, even in the next group, until -- 
15 THE COURT: Well, I'll be happy to keep them here. 
16 MR. CRANE: Well, I -- whatever -- if you think 
17 we're okay, we won't have to roll the dice. 
18 MR. ROGERS: I just -- I don't see any reason to 
19 keep them here. 
20 MR. CRANE: Okay. That's fine. 
21 THE COURT: You may release the second group. 
22 DEPUTY COURT MARSHAL WERNER: Okay. 
23 THE COURT: All right. And you'll get back in five 
24 minutes, Mr. Crane? 
25 MR. CRANE: Oh, golly. I sure -- 
384 
 1 THE COURT: No. On this one that you might be 
2 kinder -- 
3 MR. CRANE: Oh, on the one. Yeah. Yeah. Yeah, 
4 I'll run back in here. 
5 THE COURT: Otherwise, no, I'll give you 20 minutes 
6 to make your strikes. 
7 MR. CRANE: Oh, okay. Yeah. I thought you were 
8 saying I had five minutes for all -- 
9 THE COURT: No. You can have 20 minutes on each 
10 side to make your strikes. 
11 MR. CRANE: We'll be right back, Judge. 
12 (Recess taken.) 
13 - - - 
14 The following proceedings were held out of the presence 
15 of the jury: 
16 MR. CRANE: I got a question for you. Charlie, 
17 there you are. I thought that was you. 
18 I've got a question, Judge. You're indicating that 
19 two alternates, would be 47, 48, and one side gets to strike 
20 one of them. 
21 THE COURT: Wait a minute. Here we go. 47, 48, 49, 
22 and 51, would be the panel. 
23 MR. CRANE: Yeah. 
24 THE COURT: And there's a strike -- each side gets 
25 one strike, leaving two alternates. You want to look at the 
385 
 1 statute? 
2 MR. CRANE: So it's not like he gets to strike one 
3 of either 47 or 48 and I get to strike one of 49 or 51. It 
4 doesn't work that way. 
5 THE COURT: No. But you make -- you make your first 
6 strikes. And you can strike 47 or you can strike 49 and -- 
7 you can strike any one of the four. But the state goes 
8 first. In other words, you could strike any one of 47, 48, 
9 49, or 51. The state would make its strike. And then the 
10 defendant -- 
11 MR. CRANE: Okay. 
12 THE COURT: -- would come back and make his strike. 
13 MR. CRANE: Okay. 
14 THE COURT: Any one of the three that are left. 
15 MR. CRANE: Okay. 
16 THE COURT: He may make one strike. 
17 MR. CRANE: All right. So, if we go up to 51 -- 
18 THE COURT: Yes. 
19 MR. CRANE: -- I get a strike and the defense gets a 
20 strike. 
21 THE COURT: Yes. 
22 MR. CRANE: From 47, 48, 49, or 51. 
23 THE COURT: Correct. 
24 MR. CRANE: Okay. I think I'm -- give me 30 
25 seconds. 
386 
 1 MR. ROGERS: Wait. Wait. 
2 MR. CRANE: Give me 30 seconds. What? I'm right on 
3 that; right? 
4 MR. ROGERS: You're right on that, but you're coming 
5 back with the answer about whether you're going to soften 
6 your heart on Mr. Gaines? 
7 MR. CRANE: That's what I'm doing right now. That's 
8 what I'm doing right now. 
9 (Mr. Crane left the courtroom and then returned.) 
10 MR. CRANE: Got it. 
11 THE COURT: Are you going to be a kind person? 
12 MR. CRANE: No. 
13 THE COURT: All right. You have 20 minutes from now 
14 to make your strikes on our clerk's -- 
15 MR. CRANE: We can mark off Fields? 
16 MR. ROGERS: Well, we'll wait until they survive -- 
17 MR. CRANE: Well, unless you tell me different, 
18 Fields is gone. 
19 THE COURT: Fields is not a part of the group unless 
20 someone else falls over or calls and says, you know, someone 
21 in the family -- 
22 MR. CRANE: How much time do I have? 
23 THE COURT: You have until 10 minutes past 4. 
24 MR. CRANE: 10 minutes past 4. 
25 THE COURT: You have 20 minutes. 
387 
 1 MR. CRANE: Very good, Judge. 
2 (Attorneys left the courtroom.) 
3 (Discussion between the Court and Venireperson James 
4 Burlison omitted from Transcript.) 
5 THE COURT: We'll be in recess. 
6 (Recess taken.) 
7 - - - 
8 The following proceedings were held out of the presence 
9 of the jury: 
10 THE COURT: I want to make a record, gentlemen, 
11 about who has struck whom, just so that I know. I show that 
12 the state strikes Jurors 13, 18, 23, 27, 39, and 42 from the 
13 main panel and Number 51 from the alternate panel. Is that 
14 correct? 
15 MR. CRANE: Yes. 
16 THE COURT: All right. And the defense strikes 
17 Jurors 6, 7, 10, 20, 38, and 45 from the main panel and 
18 Number 49 from the alternate? Is that correct? 
19 MR. ROGERS: That's correct, Your Honor. 
20 THE COURT: All right. 
21 MR. CRANE: So 47 and 48 are the alternates. 
22 THE COURT: 47 is the first alternate, 48 is the 
23 second alternate. 
24 MR. CRANE: I just note, Judge, there's no line 
25 through Fields. Was she not excused? 
388 
 1 THE COURT: She is shown as excess. 
2 MR. CRANE: Excess. Okay. 
3 THE COURT: Excused. And so our jurors are 1, 4, 
4 17, 19 and 21 on the first page, 24, 25 and 26, 32, 40 and 41 
5 and 44 are on the main panel. 
6 Is that -- does the state concur with that? 
7 MR. CRANE: Yes. 
8 THE COURT: And the defendant? 
9 MR. ROGERS: Yes, Your Honor. 
10 THE COURT: Okay. 
11 MR. ROGERS: And the alternates are -- 
12 THE COURT: Day. 
13 MR. ROGERS: -- Day, 47, and Miller, 48? 
14 THE COURT: Correct. In that order. 
15 MR. ROGERS: In that order. 
16 THE COURT: All right. 
17 MR. CRANE: All right. 
18 Judge, Mr. Rogers and I were talking. On their 
19 admonishment reference reading anything, do you think that 
20 covers like getting on the Internet? 
21 THE COURT: I am going to be rather specific, if you 
22 don't have an objection. I'm going to read -- I'm going to 
23 do this as 300.04, paragraph 2, which is one of the recesses 
24 that we take. And I'm going to tell them about: Do not 
25 read, view, listen to any radio, television, or report of the 
389 
 1 trial, or make any other inquiry or investigation into the 
2 facts of this case, in any manner whatsoever, including, but 
3 not limited to, Internet. 
4 Now, I -- you know, it's a double-edged sword. 
5 Because they might well say, "Well, goodness, this may well 
6 be on the Internet. I never thought of that." I mean, if 
7 they Google it, I can assure you it will be right there for 
8 them to see. So I -- you know, I -- I mean, I will admonish 
9 them in every strong way that I can. If you don't want me to 
10 say "Internet," I won't say that. 
11 MR. ROGERS: We do want you to say it, because 
12 anybody who's going do it, it would occur to them anyway. 
13 That's my view of the deal. 
14 THE COURT: And they'll say, "Well, she didn't say 
15 the Internet. I'm not reading a newspaper." 
16 MR. CRANE: I agree with Mr. Rogers. 
17 THE COURT: But, you know, I can tell you, you put 
18 the name in, and it immediately will come up. 
19 MR. CRANE: I'm in agreement with Mr. Rogers and the 
20 Court. 
21 THE COURT: Okay. If you're all in agreement, I 
22 will add that little admonishment to that normal instruction 
23 I give when we recess. 
24 Are we ready to bring them in? 
25 DEPUTY COURT MARSHAL WERNER: Yeah. 
390 
 1 BAILIFF BOEDEKER: Yes, ma'am. 
2 THE COURT: You may bring them in. 
3 - - - 
4 The following proceedings were held in the presence of 
5 the jury: 
6 (Roll call by Melba Houston, Circuit Clerk.) 
7 THE COURT: Ladies and gentlemen, you are the lucky 
8 ones. And we certainly appreciate the time you've spent 
9 today and the time you will be spending next week. 
10 Our marshal will give you instructions on 
11 information that you need to know prior to reporting back to 
12 the courthouse. And that will be on Sunday. But I want to 
13 thank you again for your willingness to do this. And to do 
14 it particularly in an area where you will be in another 
15 county, away from your family and friends and work. And we 
16 all appreciate it, both the state and the defense, as well as 
17 the Court. 
18 Hopefully we can return the favor. Although we've 
19 never had anyone from your county come to Boone County, we 
20 certainly have had other counties come to pick juries and 
21 take them elsewhere. 
22 The Court will remind you again of what you were 
23 told at the first recess of this Court. Until you retire to 
24 consider your verdict, you must not discuss this case among 
25 yourselves or with others, or permit anyone to discuss it in 
391 
 1 your hearing. You should not form or express any opinion 
2 about the case until it is finally given to you to decide. 
3 Do not read, view, or listen to any newspaper, radio, or 
4 television report of the trial, or make any kind of 
5 investigation on your own regarding the facts of this case, 
6 by any means whatsoever, including, but not limited, to the 
7 Internet. 
8 Our marshal will indicate to you and has some 
9 written materials for you, what you may and may not bring 
10 when you report back to the courthouse. 
11 In the unlikely event that something should happen 
12 that none of us anticipate -- for example, we had a juror 
13 whose wife had a blood clot and had to go to the hospital 
14 this morning. And we had to excuse that juror. We don't 
15 plan on things like -- happening like that, but sometimes 
16 they do. And we will give you a number that immediately you 
17 should contact as soon as you know if there's any kind of 
18 problem at all, so that we can deal with that situation. 
19 But again, I hope you have a good weekend. And we 
20 will see you Monday morning. 
21 I'm wondering, since they will come up on Sunday 
22 evening, whether we will be able to start promptly at 8:30 on 
23 Monday morning or whether we should wait until 9. Is there 
24 any problem with having, first of all, having witnesses there 
25 or having counsel there for opening statement at that time? 
392 
 1 MR. CRANE: Start off opening statement at 8:30 as 
2 far as I know would be fine with the state, Judge. 
3 THE COURT: Well, we'll have instructions that the 
4 jury would receive at that time, but -- you know, and we'd 
5 swear the jury. But you'd be able to start at that time. 
6 MR. CRANE: Yes, ma'am. 
7 MR. ROGERS: Yes, Your Honor. 
8 JUROR SKIRVIN: Can we drive up? 
9 THE COURT: Sir? 
10 JUROR SKIRVIN: Can we drive up? 
11 THE COURT: No, you would not be able to drive up. 
12 There will be transportation provided for you. 
13 JUROR SKIRVIN: So in other words, we're limited to 
14 a hotel. 
15 THE COURT: Our marshal will explain all those 
16 things for you. 
17 VENIREPERSON SKIRVIN: I just -- I got one question. 
18 THE COURT: And would you identify yourself, sir? 
19 VENIREPERSON SKIRVIN: Oscar -- or John Skirvin. 
20 THE COURT: Yes. 
21 VENIREPERSON SKIRVIN: You know, I'm a single-income 
22 family and ain't got enough money to live week from week 
23 hardly. How am I supposed to pay my bills, going a hundred 
24 miles away? 
25 THE COURT: Sir. 
393 
 1 VENIREPERSON SKIRVIN: I stated that earlier. If it 
2 was here, I'd have no issue, because I could work after -- 
3 MR. CRANE: Judge, maybe we could take a few 
4 minutes? 
5 THE COURT: We may do that. 
6 VENIREPERSON SKIRVIN: I'd be glad if it around 
7 here, but. 
8 THE COURT: Have you released everyone? 
9 BAILIFF BOEDEKER: Yes. 
10 THE COURT: You have released everyone? 
11 I do not -- I'll be glad to talk to counsel about 
12 this matter. 
13 Is there a place where we can have the jury where -- 
14 maybe the assembly room? 
15 BAILIFF BOEDEKER: Yes, ma'am. We're going to take 
16 them in and put them in the jury room. 
17 THE COURT: All right. If you'll take them into the 
18 assembly room, please. 
19 - - - 
20 The following proceedings were held out of the presence 
21 of the jury: 
22 THE COURT: I do not have any notes that this juror 
23 made that statement during this voir dire. He made some 
24 comment about expecting the defendant to talk for himself. 
25 MS. BENSON: I have a note that he said he's a 
394 
 1 single-income family. 
2 MR. ROGERS: That's on his questionnaire. 
3 THE COURT: That may have been on his questionnaire. 
4 MS. BENSON: No, he said it as well. 
5 THE COURT: I didn't -- I usually make a note of 
6 those things. I'm glad you did. I could have the reporter 
7 go back and look at it, just to make sure what he disclosed. 
8 Let me see -- do you want to talk to defense counsel 
9 privately? 
10 MR. ROGERS: I do have that note also, Your Honor. 
11 THE COURT: Pardon? 
12 MR. CRANE: Well, yeah, I mean, it doesn't matter. 
13 I'll give you, he might have said that. I mean, now he's 
14 raising Cain. I mean, the question is: What are we going to 
15 do? 
16 MS. BENSON: Right. 
17 MR. CRANE: I mean, first off, I'd just throw this 
18 out there. You want to go with one alternate? 
19 MR. ROGERS: I -- I think the Court is very 
20 reluctant to do that. 
21 THE COURT: I am very reluctant to go with one 
22 alternate. Of course we've let the second panel to go. And 
23 we've also let -- although perhaps we could -- 
24 MR. ROGERS: Let's -- 
25 THE COURT: -- we could get -- 
395 
 1 MR. CRANE: Why don't we just go back and get Gaines 
2 or what's her name? 
3 MR. ROGERS: Fields. 
4 MR. CRANE: Fields? Can't run them down? They 
5 might have read -- 
6 MR. ROGERS: That's what I would suggest. 
7 MR. CRANE: -- viewed, listened to some news 
8 broadcast of the thing. 
9 MR. ROGERS: In the meantime? 
10 MR. CRANE: I don't know. What about that? 
11 THE COURT: Well, that might be an alternative, is 
12 to find, if we can locate -- Miss Fields was excess. She was 
13 an extra person. 
14 MS. BENSON: Right. 
15 THE COURT: And she's left the courthouse for sure? 
16 BAILIFF BRISCOE: They're all gone. 
17 MR. CRANE: Now let's just say we got those two back 
18 here, though. 
19 THE COURT: If you got those two back here, then -- 
20 MR. CRANE: You got to restrike alternates; right? 
21 MR. ROGERS: Right. Well -- 
22 THE COURT: Yes. 
23 MR. ROGERS: We would basically -- that would put 
24 Miss Day on the regular jury, which would be okay with us. 
25 We didn't choose to strike her from the alternate. And then, 
396 
 1 if you wanted to strike Fields instead of Gaines, we could 
2 get Gaines back. 
3 MR. CRANE: Well, no, what I'm -- you got to get -- 
4 you got to get four of them -- you got to get two back and 
5 then restrike; correct? 
6 MR. ROGERS: You don't have to get -- I'm saying, we 
7 would not want to restrike. If you wanted to strike one of 
8 these -- this one instead of this one -- 
9 MR. CRANE: Oh. All right. Well, you'll let me do 
10 that? Can we get away with that, Judge, you think, if he 
11 lets me do it? 
12 THE COURT: If the defendant is agreeable to 
13 allowing the state to strike between Gaines and Fields -- 
14 that assumes that we can get both of these jurors back. And 
15 I'm willing to wait here to see if we can locate them. And I 
16 certainly -- is the bailiff going to see if we can find them? 
17 BAILIFF BRISCOE: We'll see if we can get the 
18 address where they're at. 
19 MR. ROGERS: I've got the questionnaires here with 
20 the -- 
21 MR. CRANE: All right. Can you give me a couple 
22 minutes to think on it? I've put all my stuff up. I got my 
23 notes here. I can -- 
24 MR. ROGERS: It seems better than having somebody as 
25 angry as Mr. Skirvin appears to be. 
397 
 1 MR. CRANE: I really -- I mean, I don't doubt he 
2 said something, but he wasn't that adamant in -- during voir 
3 dire. 
4 MR. ROGERS: No, he wasn't. 
5 THE COURT: I don't -- 
6 MR. CRANE: But let me -- 
7 THE COURT: -- know if Diana -- you know, I was 
8 surprised that you didn't strike him, from what he said about 
9 the defendant. 
10 (Mr. Crane left the courtroom.) 
11 MR. ROGERS: We thought they were going to. 
12 THE COURT: Well, I was surprised to see him on 
13 there, myself. For that reason. But I'm not the lawyer. I 
14 don't try the lawsuit. I learned almost 30 years ago we 
15 don't do that. You have to give it up. 
16 MR. ROGERS: Exactly. 
17 THE COURT: Well, I sort of -- 
18 CIRCUIT CLERK HOUSTON: They left so quickly. I 
19 didn't -- 
20 THE COURT: -- thought they were going to -- well, 
21 they were so happy to go. I sort of -- 
22 CIRCUIT CLERK HOUSTON: I didn't realize they were 
23 gone already. 
24 THE COURT: Well, I would have left the ones that 
25 had been struck for cause and excused off -- right off, and 
398 
 1 then kept the others, but... 
2 Do we know where Miss Fields is and Mr. Gaines? 
3 BAILIFF BRISCOE: They live in Moscow. That's about 
4 four miles down the road. The other one lives in Troy. 
5 THE COURT: All right. 
6 BAILIFF BRISCOE: Nickel Holler. 
7 THE COURT: And -- 
8 MR. ROGERS: You got their phone numbers? 
9 BAILIFF BRISCOE: Yeah, I got them, but I don't know 
10 whether they've got home yet or not. 
11 THE COURT: Who lives in Troy? 
12 BAILIFF BRISCOE: Gaines. Michael Gaines. 
13 MS. BENSON: I have my cell phone right here. You 
14 want to call them? 
15 THE COURT: Who knows. They may go out and 
16 celebrate that they're not on this jury and we may have to 
17 find them in a local tavern. 
18 BAILIFF BRISCOE: Gaines -- was Gaines the right 
19 one? 
20 MR. ROGERS: Gaines and Fields. And Moscow Mills 
21 isn't -- 
22 BAILIFF BRISCOE: Four miles down the road. 
23 MR. ROGERS: Probably time wise -- 
24 BAILIFF BRISCOE: Getting them back here -- 
25 MR. ROGERS: -- depending on where he lives in Troy 
399 
 1 really. 
2 THE COURT: Would it be possible to -- well, 
3 Mr. Crane was going to go see -- 
4 MR. ROGERS: Which one he wanted to strike. 
5 THE COURT: Well, I mean, maybe he could agree that 
6 he would strike one and not the other, and we could get the 
7 one back that he didn't want to strike. 
8 MR. ROGERS: That's right. 
9 THE COURT: And so we'd only have one coming back. 
10 MR. ROGERS: That's -- that's what we agreed. 
11 THE COURT: In which case I don't want you to call 
12 both. 
13 BAILIFF BRISCOE: Okay. 
14 THE COURT: Let's see if he can come to an 
15 agreement. And I understand it's the state's -- I mean, the 
16 defense position that he can strike either one. 
17 MR. ROGERS: Either. 
18 (Mr. Crane present in the courtroom.) 
19 MR. CRANE: Well, if you find Gaines, we'll take 
20 him. 
21 MR. ROGERS: You'll keep him and strike -- 
22 THE COURT: And leave Miss Fields off. 
23 MR. CRANE: Yeah. 
24 MR. ROGERS: Okay. 
25 BAILIFF BRISCOE: Do you want me to try to 
400 
 1 contact -- 
2 THE COURT: Would you try to contact Mr. Gaines? He 
3 may have a few words for you. 
4 MR. CRANE: You know, we tried to let him go once. 
5 MR. ROGERS: Yeah, you did. You even used your 
6 preemptory for him, after you refused to be a nice guy and 
7 let him go. 
8 MR. CRANE: I don't think I can tell him that now, 
9 but. 
10 CIRCUIT CLERK HOUSTON: Are we going to need a clean 
11 sheet? Or can we work on your original? 
12 THE COURT: We can work on the original. 
13 MR. CRANE: And I'd like to just, for the record, 
14 make sure that this is what we're doing here. There's no 
15 objection, in fact was suggested by the defense, that the 
16 state select between the last two jurors on the panel -- 
17 MR. ROGERS: Right. 
18 MR. CRANE: -- would basically be what it is. 
19 Correct? 
20 MR. ROGERS: That is correct. And it seems to me 
21 the only fair thing to do, since you would have had the 
22 opportunity to make the strike, had we excused Mr. Skirvin 
23 earlier. 
24 THE COURT: Well, I'm looking for him on the list, 
25 and he's disappeared. I probably have looked at it so 
401 
 1 long -- 
2 MR. CRANE: I think he's Number 51. 
3 MS. BENSON: 41. 
4 THE COURT: 41? 
5 MR. CRANE: Who? Skirvin? 
6 THE COURT: Yeah. 
7 MR. ROGERS: Skirvin is 41. 
8 THE COURT: So it is agreeable then we would excuse 
9 Mr. Skirvin, assuming that we can get -- we can get 
10 Mr. Gaines back. And then we would move Eldora Day up to the 
11 main panel. And she would be one of the 12. 
12 MR. ROGERS: Right. 
13 THE COURT: And the state is in agreement with that. 
14 MR. CRANE: Wait a minute. Let me -- I forgot 
15 about -- oh, yeah. Okay. That's the one -- 
16 THE COURT: She would move up. And then the two 
17 alternates would be Kevin Miller and Michael Gaines. 
18 MR. CRANE: Yeah. I mean, if we don't do that, we 
19 either keep Skirvin or choose another panel. 
20 MR. ROGERS: Yeah. 
21 THE COURT: I think that would be the alternative, 
22 is to have a panel come in tomorrow morning. 
23 MR. ROGERS: I'd rather find Gaines, knowing that he 
24 will be upset. He can afford to be upset. 
25 (Recess taken.) 
402 
 1 - - - 
2 The following proceedings were held out of the presence 
3 of the jury: 
4 (Juror Gaines present in the courtroom.) 
5 THE COURT: Mr. Gaines? 
6 JUROR GAINES: Yes. 
7 THE COURT: I bring you glad tidings. Probably not 
8 to you. Because of a circumstance that has arisen in the 
9 panel, we are going to have to ask you to serve in this case. 
10 And I realize that it is a hardship and a problem for you, 
11 but -- I wish that there was something else that I could do, 
12 but I can't. 
13 Our marshal will give you instructions about where 
14 to appear and what you may or may not bring with you. 
15 And I need to tell you that and remind you what we 
16 first discussed when we had a recess to begin with. Until 
17 you retire to consider your verdict, you must not discuss 
18 this case among yourselves, with others, or permit anyone to 
19 discuss it in your hearing. You should not form or express 
20 any opinion about the case until it is finally given to you 
21 to decide. Do not read, view, or listen to any newspaper, 
22 radio, or television report of the trial, or make any 
23 independent investigation of the facts of this case by any 
24 means whatsoever, including, but not limited to, anything on 
25 the Internet. 
403 
 1 Again, I regret that we have to have you serve, and 
2 I can't finally release you, but circumstances have arisen 
3 that we just -- we need you to serve in this case. 
4 And if you will go with our marshal, he'll give you 
5 some information that he's giving the other jurors in the 
6 assembly room. And we will see you in Columbia 8:30 on 
7 Monday morning. But if you will retire with that. 
8 JUROR GAINES: Is there anything that can change 
9 that? This -- there's literally 80 people that I'm training. 
10 We shut down a complete system last night. We're changing 
11 over the complete system this weekend and starting up Monday 
12 morning. And I've got 80 people across the country that are 
13 waiting on me to train them Monday. This has been planned 
14 for a month. I mean, this is not just a little thing. It's 
15 major. It's a major company and it's a major deal. And I'm 
16 the only one that can do it. 
17 THE COURT: There is not anything that I can do. 
18 I -- certainly you will have time between now and when you 
19 report on Sunday, if there's some -- something that you can 
20 do on your end, either to delay it a week, for example. 
21 JUROR GAINES: Well, if I had done that, you know, 
22 four hours ago, that was possible, but it's not possible now. 
23 THE COURT: Well, I cannot excuse you. 
24 JUROR GAINES: Okay. 
25 (Juror Gaines excused from the courtroom.) 
404 
 1 THE COURT: So the record is clear, we have excused 
2 41, have allowed Miss Day to be on the main panel, and have 
3 had Mr. Gaines as the second alternate. And I truly regret 
4 it. I wish he had said something earlier about being able to 
5 reschedule it, if he could. I mean, if he had even said 
6 that, I certainly -- we would have given him time to go do 
7 that. But he was as adamant as he was. And I feel 
8 particularly badly since he's an alternate. There may be a 
9 fight, in which case someone else will be off this panel. I 
10 don't know. I wish I could do something else, but absent 
11 calling in a whole new panel and starting tomorrow morning, 
12 there's not a thing we can do. 
13 Anything further for the state? 
14 MR. CRANE: No, Your Honor. 
15 THE COURT: Anything further for the defendant? 
16 MR. ROGERS: No, Your Honor. 
17 THE COURT: All right. We will then be in recess. 
18 And we'll see you then bright and early. We'll be in the 
19 courthouse early. I expect the state will have its 
20 instructions. The defendant will have any instructions that 
21 you may give. You're not required to give any at all, of 
22 course, but if you have them that you're thinking about, let 
23 us know. 
24 MR. ROGERS: Okay. You want them Monday morning? 
25 THE COURT: Monday morning would be good. I assume 
405 
 1 you have them prepared. 
2 MR. ROGERS: We will by then. 
3 THE COURT: Okay. And the state will exchange any 
4 instructions that it might have. 
5 All right. 
6 MR. ROGERS: We're in the big courtroom? 
7 THE COURT: The ceremonial courtroom. And there 
8 will be one camera in that courtroom. 
9 MR. CRANE: There's one still, one video? Is that 
10 the way it works? 
11 THE COURT: I don't remember if there's a still 
12 camera. There is a video camera. 
13 MR. CRANE: But there can't be more than one still. 
14 Isn't that the way it works? 
15 THE COURT: Yes. 
16 MR. ROGERS: All right. Fair enough. 
17 THE COURT: With that understanding, we'll be in 
18 recess. 
19 MR. ROGERS: Thank you, Your Honor. 
20 (Adjourned for the evening.) 
21 - - - 
22 
23 
24 
25 
406 
 1 P R O C E E D I N G S 
2 October 17, 2005 
3 - - - 
4 The following proceedings were held in Boone County, out 
5 of the presence of the jury: 
6 THE COURT: Case Number 165368-01, State of Missouri 
7 versus Ryan William Ferguson. What says the state? 
8 MR. CRANE: Ready, Your Honor. 
9 THE COURT: And what says the defendant? 
10 MR. ROGERS: Ready, Your Honor. 
11 THE COURT: I don't know if you're aware, there is a 
12 mic that's live on that table. If you push the button on the 
13 side and it flashes -- no. On the table. Just look 
14 underneath. No, no. On the table. Sit down and look in 
15 front of you. Right in front of you on the ledge there. 
16 MR. WEIS: Oh, okay. 
17 THE COURT: If it's flashing -- if it's flashing, 
18 the mic 's off. And if it is -- if there's no color to it, 
19 the mic is on. Just so that you would know that, for 
20 confidential matters. 
21 Are there preliminary matters for the state? 
22 MR. CRANE: We gave you and the defense our draft of 
23 instructions. 
24 THE COURT: Are they on the bench here? I do see 
25 one. 
407 
 1 And does the defense have a draft instruction at -- 
2 any draft instructions at this time? 
3 MR. ROGERS: We have prepared them, Your Honor, but 
4 we don't have them here in hard copy format. Or at least we 
5 can't find them in our boxes. But we -- 
6 THE COURT: Well, you don't have to do it this 
7 moment, but if we can do that sometime this morning, that 
8 would be fine. 
9 MR. WEIS: I've got them on the computer. We can -- 
10 MR. ROGERS: Print them off during the recess. 
11 THE COURT: All right. That would be fine. 
12 Other than that, does the state have any matter to 
13 take up? 
14 MR. CRANE: None that I can think of, Judge. 
15 THE COURT: The defense? Is there any -- 
16 MR. ROGERS: Your Honor, I would ask the Court's 
17 leave for Miss Dorrance, our paralegal, to sit over here at 
18 this table during the trial, so she can help us with some 
19 audiovisual. 
20 MR. CRANE: That's all right with me. 
21 THE COURT: If that would assist, you may do that. 
22 It looks like there -- are all those boxes your boxes? 
23 MR. ROGERS: Yes, Your Honor. 
24 THE COURT: All right. 
25 MR. ROGERS: That's why we can't find our 
408 
 1 instructions. Too many boxes. 
2 THE COURT: All right. Are there any other matters 
3 then for the defense? 
4 MR. ROGERS: No, Your Honor. 
5 THE COURT: I would tell anyone here, if you have a 
6 cell phone in any form, whether it's a normal looking cell 
7 phone or if it's a PDA, a BlackBerry, turn it off. If your 
8 telephone goes off, it will be checked for the rest of the 
9 day by our court security staff. And certainly we wouldn't 
10 want you to be without it. And that goes for the attorneys 
11 too. Because sometimes it happens that attorneys have 
12 their's on as well. 
13 Where is our -- are you handling court today? The 
14 jury is ready to come in? 
15 DEPUTY COURT MARSHAL LANE: Yes, Judge. 
16 THE COURT: All right. If you would have them come 
17 in, please. 
18 - - - 
19 The following proceedings were held in the presence of 
20 the jury: 
21 THE COURT: Good morning, ladies and gentlemen. 
22 (Court reporter experienced technical difficulties 
23 with equipment.) 
24 THE COURT: Why don't we start over again. 
25 If, ladies and gentlemen, you would answer "here" or 
409 
 1 "present" as the clerk calls your name. We appreciate your 
2 being here and bearing with us with this technical problem. 
3 Hopefully it won't happen again. 
4 You may start. 
5 (Roll call by Sheri Vanderhoof, Deputy Clerk.) 
6 THE COURT: Would you stand, ladies and gentlemen, 
7 and be sworn. 
8 DEPUTY CLERK VANDERHOOF: Please raise your right 
9 hands. 
10 (Jury panel of 12 jurors and 2 alternates sworn by 
11 Sheri Vanderhoof, Deputy Clerk.) 
12 THE COURT: Be seated, ladies and gentlemen. 
13 MR. ROGERS: Your Honor, at this time defendant 
14 would request the rule with regard to exclusion of witnesses 
15 be invoked. 
16 THE COURT: All right. 
17 (Discussion off the record between counsel.) 
18 MR. CRANE: Yeah. The defense -- this is something 
19 we talked about Friday. The defense doesn't have any 
20 objection to investigator -- or prosecutor's investigator 
21 Bill Hawes being in the courtroom, although he will testify. 
22 Also, Judge, I would ask that the record reflect 
23 that the wife of Kent Heitholt is in the courtroom. Pursuant 
24 to the victims' rights statute and Missouri Constitution, the 
25 state requests that she be allowed to remain in the 
410 
 1 courtroom, even though she'd be a witness in the case. 
2 THE COURT: Are there any other family members that 
3 might be called as witnesses? 
4 MR. CRANE: There are other family members that are 
5 present -- 
6 THE COURT: But that -- 
7 MR. CRANE: -- of the Heitholt family, but I do not 
8 anticipate any of those would be called as a witness by the 
9 state. At least at this juncture. 
10 THE COURT: Do you have -- 
11 MR. ROGERS: We do not anticipate calling any, Your 
12 Honor. 
13 THE COURT: Do you have an objection? 
14 MR. ROGERS: No, Your Honor. 
15 THE COURT: All right. Any individual who is in 
16 this courtroom who is to be called as a witness, would you 
17 please approach the clerk, if you're here. Because I -- 
18 gentlemen, you know your witnesses. I don't know who they 
19 might be. And I'm talking to both sides. 
20 MR. ROGERS: We don't have any who are present in 
21 the courtroom, Your Honor. 
22 THE COURT: All right. 
23 I'd ask our marshal then to put a sign outside the 
24 door that indicates witnesses are excluded. 
25 And you did swear the jury in. Yes. All right. 
411 
 1 You may be excused then at this time. 
2 (Clerk excused.) 
3 THE COURT: Ladies and gentlemen, this case will 
4 proceed in the following order. 
5 First, the Court will read to you two instructions 
6 concerning the law applicable to this case and its trial. 
7 Next, the attorney for the state must make an opening 
8 statement outlining what the attorney expects the state's 
9 evidence will be. The attorney for the defendant is not 
10 required to make an opening statement then or at any other 
11 time. However, if the attorney chooses to do so, he may make 
12 an opening statement after that of the state, or the attorney 
13 may reserve his opening statement until the conclusion of the 
14 state's evidence. 
15 Evidence will then be introduced. 
16 At the conclusion of all the evidence, further 
17 instructions in writing concerning the law will be read to 
18 you by the Court, after which the attorneys may make their 
19 arguments. You will then be given the written instructions 
20 of the Court to take with you to your jury room. You will go 
21 to that room, select a foreperson, deliberate, and arrive at 
22 your verdict. 
23 Sometimes there are delays or conferences out of 
24 your hearing with the attorneys about matters of law. There 
25 are good reasons for these delays and conferences. The Court 
412 
 1 is confident that you will be patient and understanding. We 
2 will have recesses from time to time. 
3 The following two instructions of law are for your 
4 guidance in this case. The two of them, along with the other 
5 instructions in writing read to you at the close of all the 
6 evidence, will be handed to you at that time to take to your 
7 jury room. 
8 (Instructions 1 and 2 read to the jury.) 
9 THE COURT: Mr. Crane. 
10 MR. CRANE: Please the Court. 
11 THE COURT: You may address the jury. 
12 MR. CRANE: Counsel. 
13 - - - 
14 OPENING STATEMENT 
15 BY MR. CRANE: 
16 Ladies and gentlemen of the jury, welcome to Boone 
17 County. 
18 The evidence in this case will be that on October 
19 31st, 2001, that's Halloween 2001, Charles, he goes by Chuck, 
20 Erickson and the defendant, Ryan Ferguson, both 17-year-old 
21 high school students, had been drinking inside a bar called 
22 By George here in town. By the early morning hours of 
23 November 1, 2001, the two left the bar and walked down the 
24 street where the defendant had parked his Mercedes. From the 
25 car, the teenagers walked a short distance, when they saw a 
413 
 1 man on the parking lot of the Columbia Daily Tribune 
2 newspaper building. Without warning, they attacked this man, 
3 as he stood by the door of his car. The evidence will be 
4 that Erickson walked up and struck the victim in the head 
5 with a tire tool. Thereafter, the defendant strangled the 
6 victim to death. And then both of them left the scene. 
7 Now ladies and gentlemen, back in November of last 
8 year, 2004, Chuck Erickson pled guilty to murder in the 
9 second degree, robbery, acting in concert with Ryan Ferguson 
10 to commit that robbery, and a crime called armed criminal 
11 action. He pled guilty to those offenses for his part in 
12 this crime. 
13 Let's go back to the fall of 2001. Chuck Erickson 
14 and the defendant had been friends since junior high. They 
15 went to the same schools, had some of the same friends, lived 
16 in the same part of town, hung out together, ran around 
17 together. 
18 On the night of Halloween 2001, the defendant and 
19 Erickson met out -- met up outside a house party where a lot 
20 of other kids their age had gathered. Shortly after the 
21 police showed up and broke up this house party, the boys got 
22 together and left in the defendant's vehicle. But the night 
23 was still young. The defendant drove to Erickson's 
24 residence, where Erickson changed clothes and snuck back out, 
25 meeting the waiting defendant. 
414 
 1 They were headed for a bar called, as I mentioned, 
2 By George. The 17-year-olds were under age, but the 
3 defendant's sister had said that she could get them in. The 
4 nightclub was a popular place that night. A lot of people 
5 inside; a lot of cars parked outside. So the defendant 
6 parked on past the bar, down the street. 
7 The two buddies walked to the parking lot and met up 
8 with the defendant's older sister and her friend. And this 
9 friend was an Asian female. The bar doorman, bouncer, 
10 whatever you want to call it, let them right on in, with 
11 these two females. And while the defendant and Erickson were 
12 in By George bar, they each had several cocktails. They 
13 eventually left the bar that night and went back to the 
14 defendant's Mercedes. 
15 The evidence will be that during this period the 
16 defendant made some cell phone calls. Evidence will be that 
17 the last cell phone call the defendant made was at 2:09 a.m., 
18 and it was one minute in duration. 2:09 a.m. on November 1, 
19 2001. And the evidence will be that these cell phone calls 
20 were made right there in the area of the bar. 
21 They got to the car, but these two young men still 
22 weren't ready to go home. Instead, on a spontaneous whim, 
23 they decided to go rob someone. 
24 The defendant got a tire tool from his trunk and he 
25 gave it to Erickson. Evidence will be they then left the 
415 
 1 vehicle on foot and walked a short distance to Providence 
2 Road. Providence Road. From there, Erickson and the 
3 defendant spotted the victim, Kent Heitholt, a sports editor 
4 for the Tribune newspaper. And Mr. Heitholt was now the 
5 target. 
6 Erickson and the defendant walked up to the parking 
7 lot. 
8 By the way, the bar and the defendant's car are a 
9 short distance, a block and a half, from the parking lot at 
10 the Tribune building. The evidence will be that, walking at 
11 a normal pace, it takes 3 minutes and 20 seconds to get from 
12 the area of the car down to this parking lot where 
13 Mr. Heitholt was. 
14 Evidence will be that Kent Heitholt logged off his 
15 computer at work at 2:08 a.m., and he said his goodbyes to 
16 the other employees inside, left the building, and walked to 
17 his car on the parking lot. 
18 He normally worked in the early morning hours, 
19 reporting sports news of the day. He was a big man. 315 
20 pounds, six foot three inches tall. And he was 48 years old. 
21 His work day was over. And now Kent stood at the driver's 
22 side of his car, getting ready to leave. He was alone on the 
23 parking lot. And ladies and gentlemen, the evidence will be 
24 that Chuck Erickson simply walked up and began striking the 
25 victim on the head with this tire tool. Heitholt staggered. 
416 
 1 He moaned. His head began bleeding. And finally he went 
2 down on the pavement. Erickson stopped hitting him and sat 
3 on a wall at the front end of the vehicle, of Mr. Heitholt's 
4 vehicle, and he felt sick. The victim was hurt bad, but he 
5 was still alive. After Kent was down, the evidence will be 
6 the defendant then pulled off the victim's own belt and used 
7 it to strangle him to death. 
8 While Chuck Erickson and the defendant were still at 
9 the scene, beside the driver's side of the victim's car, a 
10 cleaning lady, a night cleaning lady at the Tribune, stepped 
11 out onto the lot to smoke a cigarette. And she saw two 
12 people ducking behind the driver's side of Kent's car. This 
13 scared her. And the cleaning lady went back inside and 
14 hollered at another janitor. 
15 And then both janitors, one was the cleaning lady 
16 and one was a male janitor, looked outside from this dock 
17 area out onto the parking lot, and they saw two young white 
18 males, not one, but two young white males on the opposite 
19 side of Kent Heitholt's car from them. 
20 The male janitor yelled out there, "Who's there?" 
21 Trying to figure out what's going on. He couldn't see Kent. 
22 He was down. And from his location behind the victim's car, 
23 the evidence will be that one of these young white males 
24 yelled back at him, "Somebody's hurt. Get help." Words to 
25 that effect. 
417 
 1 Ladies and gentlemen, the evidence will be that that 
2 young white male that yelled back at those janitors, evidence 
3 will be that was Chuck Erickson. 
4 When last seen by either of the janitors, the 
5 defendant and Erickson were headed out of the parking lot. 
6 The evidence will be they made it back to the Mercedes up by 
7 the bar, and they got away. The defendant drove Erickson to 
8 his residence and drove away himself. 
9 The evidence will be that the janitors contacted 911 
10 at 2:26 a.m. on November 1, 2001. So the victim, the 
11 evidence will be, logs off his computer, finishes his job, 
12 leaves, 2:08. The janitors are calling 911 at 2:26 a.m. 
13 Other sports writers that were still in the building 
14 that night heard that something had happened to their 
15 co-worker, Kent. He was their boss. And they ran out onto 
16 the lot. And when they got to Kent, he was face down in a 
17 pool of his own blood. 
18 The two coworkers, of course they were hoping he was 
19 still alive, rolled him over from his original position. 
20 They rolled him over onto his back. They checked for a 
21 pulse. Checked his neck; checked his wrist. Didn't get 
22 anything. 
23 The first police officers, now responding to the 
24 janitor's 911 call, arrive at 2:30 a.m. And soon thereafter 
25 numerous other uniform police officers arrive and emergency 
418 
 1 personnel. Paramedics. The paramedics tore open 
2 Mr. Heitholt's sweater that he was wearing, checked his 
3 vitals, but he was already dead. 
4 After the uniform police arrived and paramedics 
5 determined the victim was deceased, evidence detectives were 
6 called in from the Columbia Police Department to process the 
7 crime scene. 
8 It was determined that Kent Heitholt's wrist watch 
9 was missing. It was also determined that the keys to Kent 
10 Heitholt's vehicle had been stolen. His wallet was in the 
11 car, in the center console, under the thing you can raise up 
12 and down. Its contents were intact. 
13 There was blood spatter on the inside and on the 
14 outside of the victim's car. The driver's side of the 
15 vehicle was where this spatter was located. The driver's 
16 side. And also there was a particularly large amount of 
17 blood spatter and blood transfer, we'll talk about what those 
18 terms means as the case proceeds, on the rear driver's side 
19 wheel of the victim's vehicle. The multiple blows to the 
20 victim had produced a large amount of blood pooling on the 
21 pavement. Those multiple blows to the victim's head. 
22 Loose change lay near the body. The strap, the 
23 strap part of the victim's belt, was missing. It wasn't at 
24 the scene. But the buckle of Kent Heitholt's belt lay near 
25 his head. Two belt loops on the pants of the victim were 
419 
 1 ripped loose. 
2 At the autopsy performed on the body of Kent 
3 Heitholt later that same day, we're still on November 1, 
4 2001, the medical examiner determined that the victim 
5 received multiple blows to the head with a blunt object. He 
6 also had wounds inflicted on his arms and hands. The blunt 
7 trauma on the head, however, was not what killed Kent 
8 Heitholt. On his neck there was visible bruising. In 
9 addition, there is an imprint on the right side of Kent 
10 Heitholt's neck. And that imprint matches the buckle that 
11 was found at the scene. 
12 The victim's watch, car keys, belt strap have never 
13 been found. The tire tool used to deliver the blows to the 
14 victim's head has never been found. 
15 I'll tell you right now, ladies and gentlemen, over 
16 the course of this investigation, no fingerprints, blood, 
17 DNA, or hair at the scene have been identified as the 
18 defendant's or Chuck Erickson's. 
19 Since this murder on November 1, 2001, the Columbia 
20 Police Department worked the case, for the rest of that year, 
21 and then they worked the case through 2002, and then they 
22 worked the case through 2003. And it remained unsolved. 
23 Let's go back now to 2001. That same morning, the 
24 Thursday morning -- Wednesday was a school night. It's time 
25 for school. Time to go to high school. It's Thursday 
420 
 1 morning. And ladies and gentlemen, hung over, Chuck Erickson 
2 got up and went to school. The evidence will be the 
3 defendant did not attend school that day. 
4 The evidence will be that Chuck Erickson would not 
5 consciously think about what he and Ryan Ferguson had done 
6 for two years. He put the horrible things they'd done on the 
7 Tribune parking lot out of his conscious memory. 
8 He graduated from high school; got a job; was 
9 attending junior college classes. 
10 But now in October of 2003, coming up on the 
11 two-year anniversary of this murder, October of 2003, his 
12 memory, Chuck Erickson's memory of these events was 
13 triggered. He saw a newspaper article talking about the 
14 homicide. He kept it to himself at first, but from then on 
15 his memory, his guilt for this crime, began to bother him and 
16 to eat at him more and more. 
17 Finally at a New Year's Eve party, it was 2003, 
18 going into 2004, Erickson confronted Ferguson about these 
19 memories that he had. It became confrontational. Ferguson, 
20 the defendant, angrily denied it. And Chuck left the party 
21 saying, "That's not something you forget." 
22 Then in late February, early March, of 2004, 
23 Erickson confided in two different friends -- 
24 MR. ROGERS: Object to this as hearsay, Your Honor. 
25 This is not going to be admissible testimony. 
421 
 1 THE COURT: Do you want to approach the bench? 
2 MR. CRANE: I -- yeah, we probably ought to 
3 approach. 
4 THE COURT: Or do you want to respond? Do you care 
5 to respond there, or you want to approach the bench? 
6 MR. CRANE: You want to approach on this? 
7 - - - 
8 Counsel approached the bench and the following 
9 proceedings were held: 
10 MR. CRANE: Well, first of all, Judge, when we call 
11 Mr. Erickson, he'll testify about what he told the two 
12 friends. So that's not -- he'll testify about a 
13 conversation. So that's not hearsay. 
14 MR. ROGERS: Sure, it is. It's the witness 
15 testifying about an out-of-court statement he made. It's not 
16 only hearsay, it's self-serving hearsay. 
17 MR. CRANE: The defendant can testify to things he 
18 said. 
19 THE COURT: I'm going to overrule your objection. 
20 MR. CRANE: And also, now, we do have a motion in 
21 limine regarding the testimony of these two individuals, 
22 which we I guess we'll approach on that. 
23 THE COURT: Yes. 
24 MR. CRANE: Okay. Yeah. 
25 - - - 
422 
 1 The following proceedings were held in open court: 
2 THE COURT: You may proceed. 
3 MR. CRANE: Thank you, Judge. 
4 Okay. Then in late February, March, 2004 -- I know 
5 I'm skipping around a little bit on dates, but you with me? 
6 2004. The -- Chuck Erickson confided in two different 
7 friends. Two different buddies. He was hesitant, and he was 
8 uncertain, and he said maybe he dreamed it. But he told both 
9 of these friends that -- now these were two different 
10 conversations with two different guys at different times -- 
11 that he and Ryan Ferguson, back on Halloween of 2001, had 
12 been at George's. Said they had run out of money and they 
13 decided to rob somebody. Erickson told these buddies that 
14 they attacked the man, and that he then saw Ferguson strangle 
15 the reporter. 
16 Erickson said he'd seen a cleaning lady, when he was 
17 talking to these buddies, at the back of the Tribune 
18 building. And Erickson told his buddies he yelled at her and 
19 told her they needed help. "Somebody's hurt." Words to that 
20 effect. But that the lady had taken off. 
21 Now those statements were before Erickson talked to 
22 the police. But word about these statements got to the 
23 police. There was an anonymous call about that New Year's 
24 Eve conversation. Got to the police. And one of the two 
25 buddies, that I mentioned a minute ago, he told the police. 
423 
 1 He told buddies, and then the police found out about it, and 
2 they talked to them about what Erickson was saying. 
3 On March 10, 2004, the police made contact with 
4 Chuck Erickson, here in Columbia. At the station the police 
5 told Erickson they'd been hearing he was saying things about 
6 the murder to his friends. And with the police, ladies and 
7 gentlemen, Chuck Erickson still couldn't remember many 
8 details. He was hesitant about what he could remember. And 
9 he even said a time or two he wasn't sure that it had 
10 happened. But during the very first interview with the 
11 detective, Chuck Erickson said he was the one who had beaten 
12 the victim and that Ryan Ferguson was the one who strangled 
13 him. 
14 He said he and Ferguson were at By George, when he 
15 talked to the police. He said they'd run out of money. 
16 Decided to go rob somebody. He said Ferguson got a tire tool 
17 out of his car. And that the car was parked down the street 
18 from the bar. That they walked from the car to the Tribune 
19 building. Erickson said he, talking about himself, the 
20 evidence will be, without warning, hit the victim in the head 
21 with this tire tool. He said the victim moaned in pain and 
22 was bleeding. Erickson said he felt sick. Thought maybe 
23 he'd thrown up after hitting the victim. And he sat down. 
24 Said when he looked up, he saw Ferguson, over the victim, 
25 strangling him. 
424 
 1 Erickson said to the police he saw a cleaning lady 
2 at the back of the Tribune building. He said he yelled at 
3 the cleaning lady: "Somebody's hurt. Go get help." Words 
4 to that effect. 
5 He said that when they crossed back over 
6 Providence -- you got to go across Providence to get to and 
7 from the parking lot from George's -- that they saw an 
8 acquaintance named Dallas Mallory pulling up to a traffic 
9 light. 
10 Erickson told the police that he and Ferguson went 
11 back inside the bar, after this murder occurred, and that 
12 then they left again, and that Ferguson drove Mr. Erickson 
13 home to his house, and then the defendant left. 
14 After his initial statements to the police, the 
15 detectives drove Erickson to the scene and the surrounding 
16 area. Erickson continued to be unsure about all that had 
17 happened. He'd back off and he'd say maybe he read it in the 
18 newspaper. 
19 At these interviews there were details, there were 
20 details that he couldn't remember. But the essence -- the 
21 evidence will be, ladies and gentlemen, that the essence of 
22 this homicide was there: He was always with the defendant; 
23 he was always the one, Erickson was always the one that 
24 started hitting him, hitting the victim; and the defendant 
25 was always the one that was strangling him, when he told 
425 
 1 about that memory. 
2 That same day the defendant was located by police in 
3 Kansas City. He was transported back here by officers. He 
4 was extensively interviewed by the police. And he denied any 
5 involvement with the murder. 
6 We expect the evidence will be: Mr. Ferguson, the 
7 defendant, agreed he was with Erickson that night, and they 
8 were at By George bar, and that they left together. Said he 
9 dropped Erickson off and went home and got home sometime 
10 around 2 to 2:15 a.m. 
11 After his arrest on March 10, 2004, Chuck Erickson 
12 was taken to jail. His parents hired a criminal defense 
13 attorney to represent him. 
14 For the next eight months, Erickson talked on the 
15 phone to his mom and his dad and his sister. He consulted 
16 with his lawyer. He did read the police reports in the case, 
17 given to him by his lawyer, that his lawyer had gotten from 
18 the prosecutor's office. And he talked to a psychologist 
19 that was hired by his attorney. 
20 During that time, during that time after his arrest, 
21 and up until October 2004, law enforcement didn't have any 
22 contact with Chuck Erickson. Nobody from the prosecutor's 
23 office, nobody from the Columbia Police Department had access 
24 to him. He was represented by counsel. No contact. 
25 On October 1st of 2004, Chuck Erickson, through his 
426 
 1 attorney, entered into what is called a proffer. A proffer. 
2 He was taken, with his consent, along with his attorney, his 
3 attorney went too, to the police department, where he made a 
4 statement outlining what he could remember. And this was 
5 done with the potential for an agreement that he testify in 
6 this case. 
7 At this meeting he did provide more information. 
8 Some of the things he talked about he had never been asked 
9 before by the police back in March. Some of the information 
10 was details about the night of the murder that he'd forgotten 
11 and remembered again. And as to some details, he still 
12 couldn't remember. But the evidence will be, ladies and 
13 gentlemen, that Chuck Erickson had no uncertainty about the 
14 essence of this murder. That he beat the victim and the 
15 defendant strangled him. 
16 After that proffer, after consulting with his 
17 attorney, Chuck Erickson and his attorney signed a written 
18 agreement to plead guilty to murder in the second degree, 
19 robbery, and armed criminal action. As a part of this 
20 agreement, Erickson agreed to testify truthfully -- 
21 MR. ROGERS: Objection, Your Honor. 
22 MR. CRANE: -- in this -- 
23 MR. ROGERS: Argumentative. 
24 THE COURT: The objection's overruled. 
25 MR. CRANE: As part of the agreement, the evidence 
427 
 1 will be that Chuck Erickson agreed to testify truthfully at 
2 this trial in which you're jurors on today. 
3 On November 4, 2004, right in this courtroom, in 
4 that witness chair, Chuck Erickson entered his pleas of 
5 guilty. After this trial is over, Erickson will be sentenced 
6 to 25 years in prison for the murder and robbery of Kent 
7 Heitholt. 
8 At the close of all the evidence in this case, I'll 
9 ask you to find that the defendant is also guilty of the 
10 murder and robbery of Kent Heitholt. 
11 I appreciate your patience. Thank you. 
12 THE COURT: Does defense counsel wish to make an 
13 opening statement at this time or reserve your opening 
14 statement? 
15 MR. ROGERS: We wish to make one, Your Honor. 
16 May it please the Court. 
17 THE COURT: You may. 
18 - - - 
19 OPENING STATEMENT 
20 BY MR. ROGERS: 
21 Good morning. 
22 This case is about three different stories. The 
23 first two follow one on the other. The third story is 
24 connected to the first two only in the imagination of Chuck 
25 Erickson. 
428 
 1 The first story is the tragic, brutal beating and 
2 strangulation of Kent Heitholt. There is no question that 
3 sometime around a quarter after 2 in the morning, November 
4 1st, 2001, Kent Heitholt was attacked in the parking lot 
5 behind the building where he worked, the Columbia Daily 
6 Tribune building. 
7 This will be -- to defy convention, north is at the 
8 right end of the picture. 
9 This is the Columbia Daily Tribune building. This 
10 is the parking lot behind it, where Heitholt was parked. 
11 This is By George's, by the way. 
12 Here's what we know from credible evidence happened 
13 in that parking lot. 
14 Kent Heitholt had left the building. There was a 
15 stray cat who frequented that area, and Mr. Heitholt was in 
16 the habit of feeding that cat. And when the police later 
17 processed the scene, they saw that cat food had, in fact, 
18 been put on top of a little retaining wall for the cat. 
19 Mr. Crane has mentioned the two cleaning people. A 
20 woman named Shawna Ornt came outside to smoke a cigarette; 
21 stood on the loading dock behind the building, overlooking 
22 the parking lot; saw two young men. She described one man, 
23 the man who was at the back of the car, the man who said 
24 something to her to the effect of, "Somebody needs help 
25 here," as a white male, 20 to 21 years of age, six feet tall, 
429 
 1 with a medium or muscular build, having blond hair, later 
2 described as extremely blond hair, spiked in the front. The 
3 other man she didn't get a look at at all, but said that he 
4 was about the same age, with a much fatter build. 
5 The other janitor, Jerry Trump, described those men: 
6 The man at the back of the car as a white male, with a stocky 
7 build, dark hair, wearing a ball cap, six feet tall, 20 to 21 
8 years of age; the other man, by the driver's door, Trump 
9 described as a white male, with blond hair, also six feet 
10 tall, with a thin build, 19 to 20 years old. 
11 Now, keep in mind, they're not looking at the same 
12 time necessarily. Ornt is there first; she goes and gets 
13 Trump; Trump comes out. So the people could have switched 
14 positions. 
15 Those are the men that were seen. And what do they 
16 do? What are they seen to do by Jerry Trump? They are seen 
17 to go east in this alley that leads through the parking lot 
18 and to turn right and head south on Fourth Street. 
19 Police come. Start processing the scene. And 
20 latent fingerprints of value, which are fingerprints which 
21 have sufficient detail to be identified, are found on the car 
22 of Mr. Heitholt. Those fingerprints are not Ryan Ferguson's, 
23 those fingerprints are not Charles Erickson's, and those 
24 fingerprints are not Kent Heitholt's, or anybody else's the 
25 police have compared them to in connection with this case. 
430 
 1 A canine unit, police dog, handled by an officer 
2 named Todd Alber, comes to the scene. Is brought to the 
3 scene. And Officer Alber and the dog -- the dog, under the 
4 guidance and control of Officer Alber, follows a scent trail 
5 from the Tribune parking lot, east, up the alley, to Fourth 
6 Street, south on Fourth Street, across Walnut Street, and 
7 across Broadway, which is a main east-west street here in 
8 Columbia, down past Cherry and Locust, and it ends up over 
9 here roughly on Fifth Street, where the dog loses the trail 
10 in front of a building which is student housing for the 
11 University of Missouri. 
12 Other police come to the scene. They used a 
13 substance called luminol. And luminol is a chemical which 
14 they can spray and which fluoresces in the presence of blood. 
15 And they, with the use of luminol, find some pretty complete 
16 bloody footprints there at the scene, and they find a trail 
17 of blood -- of -- that -- of this luminescence from the 
18 luminol, that goes up the alley, right on Fourth Street, 
19 going south down towards Broadway, before the trail 
20 decreases, and they basically lose it roughly at Fourth and 
21 Broadway. 
22 The body of Kent Heitholt is prepared for 
23 transportation to the medical examiner's -- or to the morgue, 
24 where the medical examiner does the autopsy. And one of the 
25 things they do in preparing the body for transportation is 
431 
 1 they put sterile bags over the hands, so that any items of 
2 evidence on the hands of Mr. Heitholt can be maintained and 
3 won't be lost during the transportation. 
4 At the medical examiner's -- at the autopsy, those 
5 bags are removed, and trace evidence is recovered. There are 
6 several hairs on the hands of Kent Heitholt. Several hairs 
7 and hair fragments, and one what they call limb hair or body 
8 hair; not a head hair. Most of those hairs turn out to be 
9 those of Mr. Heitholt. There is, however, one hair in the 
10 bloody hand of Kent Heitholt which is not his. It has been 
11 tested by the FBI laboratory using a process called 
12 mitochondrial DNA analysis. And that's a process where the 
13 DNA from the mitochondria of the cell are tested. 
14 Basically if you think of a cell like a fried egg, 
15 you have the yolk, which is the nucleus, and then you have 
16 the cytoplasm, which is the white of the egg. And in the 
17 cytoplasm are little bodies called mitochondria. And they 
18 contain DNA which is different from the nuclear DNA, because 
19 it's only derived from the mother. The nuclear DNA is 
20 derived from the father's DNA, combines with the mother's 
21 DNA, to create life. And so mitochondrial DNA is different 
22 than nuclear DNA. 
23 But this mitochondrial DNA was tested in the hair. 
24 And you'll have that in the hair cells that do not have 
25 nuclear materials, so it cannot be tested for nuclear DNA. 
432 
 1 You can test them for mitochondrial DNA. 
2 That hair is not Kent Heitholt's. That hair in the 
3 bloody hand of the decedent is not Chuck Erickson's. That 
4 hair in the bloody hand of the decedent is not Ryan 
5 Ferguson's. 
6 The autopsy shows that Mr. Heitholt suffered 
7 multiple blunt trauma force injuries to the head. He had 
8 what appeared to be defensive wounds on his hands and arms. 
9 He had a ligature mark around his neck. He had a very 
10 unusual finding: He had a fractured hyoid bone in his neck, 
11 which is certainly consistent with and the result of 
12 strangulation, but it shows a lot more force than is normally 
13 seen. I believe the medical examiner will testify that that 
14 is a finding that you might find in somebody who has been 
15 hanged as a manner of execution, with a long drop, but you 
16 very rarely find in somebody who has committed suicide by 
17 hanging themselves, on somebody who is hoisted up to be 
18 hanged. Shows a very significant amount of force. And 
19 you'll also see the torn belt buckle, which shows a very 
20 significant amount of force. 
21 That is the story of what happened to Kent Heitholt. 
22 The next story, the story that follows from that, is 
23 the story of the police investigation. And we've talked 
24 about the investigation early that morning. 
25 For the next two and a half years the police are 
433 
 1 following some leads, talking to people, talking to suspects, 
2 clearing people, clearing suspects. There are a lot of 
3 people that they talk to, there are a lot of reasons to 
4 suspect various people, but nobody is ever arrested, nobody 
5 is ever charged. There are a lot of people who are asked to 
6 give fingerprints; there are a lot of people who are asked to 
7 give DNA samples. Nothing. 
8 And even though this investigation is not closed, 
9 it's definitely on the back burner. But remember who we're 
10 talking about here. Kent Heitholt was the sports editor of 
11 the Columbia Daily Tribune. Big paper here in town. This is 
12 not a story that goes away. This is a story that the local 
13 media, including the Tribune, but also the broadcast media, 
14 keep on. It's a story that is revived in October of 2002, 
15 Halloween of 2002, November of 2002, the one-year anniversary 
16 of Mr. Heitholt's death. And it's a story which is revived 
17 again on October -- in October and November of 2003. It is 
18 at that time that the third story comes into play. 
19 And there's really no question that on Halloween 
20 night of 2001, Ryan Ferguson and Chuck Erickson ended up at 
21 this bar, By George's. They had been -- Chuck had been at a 
22 party. The police had come and closed down the party. The 
23 guys that Chuck had gone there with had left without him. 
24 Ryan had been at that party briefly earlier, but was now 
25 coming back. Saw Chuck walking away from the place. Offered 
434 
 1 him a ride. 
2 Ryan had, before -- earlier that evening had talked 
3 with his sister Kelly. Ryan had just turned 17 October 19th. 
4 And he was an occasional drinker. And he was planning to 
5 drink at the party. And he was planning -- he had talked 
6 with Kelly about getting into a bar. Getting into By 
7 George's. 
8 Kelly was 21, 22 years old. She was of legal age. 
9 Her roommate, Christine Lo, was of legal age. Her roommate, 
10 Christine Lo, was friends with the doorman or bouncer, 
11 whatever you call them, at By George's. And she would 
12 usually take advantage of that friendship to get in there for 
13 free, if they were charging a cover, or to get free drinks. 
14 And Kelly knew that if Ryan came with her and 
15 Christine, he could get in without having any ID, without 
16 being of age or having to prove that he was of age, because 
17 the doorman was a friend of Christine's and would let a 
18 friend of hers in the bar. 
19 So they got -- they had talked earlier that evening 
20 at the home where Ryan lived with his parents. Christine did 
21 not live there. She lived in an apartment with -- I don't 
22 mean Christine. I mean Kelly. Christine didn't live there 
23 either. Kelly and Christine and another girl lived in an 
24 apartment. They were all students at the University of 
25 Missouri. But Kelly had been over there using her parents' 
435 
 1 computer to work on a paper from school. And she had talked 
2 with Ryan and talked about getting together later in the 
3 evening and getting into By George's. So they met up, and 
4 they got together by phone, and Kelly and Christine got Ryan 
5 and Chuck into By George's. And they went there and they 
6 drank. 
7 You know, By George's is a bar in Columbia. By 
8 George's closes, like all bars are supposed to, at 1:30 in 
9 the morning. They have what's called "last call," where they 
10 turn on the lights; they try to get everybody out of there. 
11 The evidence will be that there are almost always police 
12 officers out in the parking lot or in front of By George's 
13 when it closes, because sometimes there are fights and things 
14 when the bar's getting out. It's a, or it used to be, I 
15 guess it's closed now, kind of a happening night spot for 
16 young people, and they don't want any trouble, so there are 
17 usually police officers there watching at closing. 
18 You know, earlier at the party Ryan had been talking 
19 to a girl named Holly Admire. And Holly was having troubles 
20 with her boyfriend. And Ryan thought he was going to take 
21 advantage of that situation. Or he'd like to at least. So 
22 after By George's closed, Ryan took Chuck home to his house, 
23 to Chuck's house, and then Ryan went to his house. And there 
24 is a series of telephone calls between Ryan on his cell phone 
25 and Holly Admire on her cell phone, Holly Admire at the house 
436 
 1 of a friend where Holly was staying, and other cell phone 
2 calls. Those calls start at about 1:40 and keep going up 
3 until after 2:00 in the morning. 
4 MR. CRANE: Up until what time? 
5 MR. ROGERS: After 2:00 in the morning. 
6 MR. CRANE: Okay. 
7 MR. ROGERS: So far there's nothing connecting the 
8 story of Halloween 2001, from Ryan Ferguson's point of view, 
9 with the other two stories. 
10 And yet here's Ryan talking on the cell phone after 
11 2:00 in the morning, and he skipped school the next day. I'm 
12 afraid that the record will show it wasn't all that unusual 
13 for Ryan to miss school. 
14 There's nothing that connects Ryan's story with the 
15 other stories: The death of Kent Heitholt, the investigation 
16 of the murder of Kent Heitholt, during 2001, during 2002, 
17 most of the way through 2003. But around Halloween of 2003, 
18 when the media once again honor the anniversary of 
19 Mr. Heitholt's death, Chuck Erickson has a dream. And like 
20 dreams are want to do, it combines different elements from 
21 waking reality. And one of the elements in waking reality is 
22 the fact that Chuck and Ryan were together on Halloween. 
23 Another of the element in waking reality is the news media 
24 and everything that Chuck has been reading and hearing about 
25 Mr. Heitholt's death. 
437 
 1 Now, keep in mind, Ryan is not reading and hearing 
2 these things, because Ryan has gotten out of high school, 
3 taken some time off and done some work, and now is going to 
4 college in Kansas City. And he and Chuck really don't see 
5 each other, because he's in Kansas City and Chuck's here in 
6 Columbia. 
7 But Chuck has this dream. And the evidence will be 
8 that Chuck has symptoms consistent with -- it's called 
9 obsessive-compulsive disorder. And Chuck starts obsessing 
10 about this dream. And the dream itself is a dream, and he 
11 knows it's a dream, and he tells his buddies it's a dream, 
12 but he thinks it might be real. He keeps wondering about the 
13 dream, he keeps thinking about the dream, and he keeps 
14 worrying and obsessing about the dream. 
15 And so Chuck and Ryan see each other at a New Year's 
16 Eve party, or a party around New Year's Eve, it's not real 
17 clear it was actually New Year's Eve, but during the holidays 
18 at the end of 2003, beginning of 2004. And they're at a 
19 party. And Chuck is drinking; Ryan's drinking. They -- 
20 Chuck says, "I want to talk to you about something." They go 
21 outside, away from the bulk of the party-goers. And Chuck 
22 confronts Ryan with this, as Mr. Crane says, and says, "You 
23 know, I think we did something really bad, you know, with 
24 that Tribune guy." Ryan doesn't know what he's talking 
25 about. Denies in no uncertain terms that he ever did 
438 
 1 anything like that. Chuck kind of drops the subject then. 
2 Ryan goes back to school. 
3 Chuck, it seems like every time he'd get drunk, 
4 would be telling people about this funny dream he's had. And 
5 he begins to get more sure that there's something behind it. 
6 And he finally tells somebody who tells somebody who calls 
7 the police. 
8 Now in the meantime, somebody at the party has, in 
9 fact, overheard the conversation between Chuck and Ryan, 
10 because the police receive an anonymous tip. And as a result 
11 of that -- coincidentally, Ryan's car was broken into; some 
12 things were taken; he calls the police and reports that. 
13 They say, "Okay. We need to get your fingerprints so that we 
14 can investigate the theft from your car." Actually, they 
15 want fingerprints to compare in this case. They get them. 
16 They compare them. Like they've done with so many other 
17 leads. Not Ryan's prints on the Heitholt car. So that's the 
18 end of that. 
19 But a couple of months later, when they hear about 
20 Chuck Erickson telling people he might have been involved, or 
21 he and Ryan might have been involved, then they go out and 
22 they pick up Chuck Erickson. And they interview him on March 
23 the 10th a total of four times. 
24 The first time he is interviewed by Detective Short. 
25 And Detective Short wrote a report of that interview. It's 
439 
 1 really hard to tell what went on during that interview from 
2 the report, but you will hear a lot of details that Chuck 
3 supposedly said that are not accurate with regard to what 
4 really happened. 
5 But then the next three interviews are on videotape. 
6 And you will watch, on videotape, right here, on that big 
7 screen back there, which I'll move this in a minute, and see 
8 how Charles Erickson's memory, so-called, of these events is 
9 formed and shaped and given what detail it has by the police. 
10 You will see over and over again, both with Detective Short 
11 and later with Detective Nichols, Erickson try to say, "Look, 
12 I may just be making this up. I may have fantasized this. 
13 After all, it's only a dream. I don't really remember doing 
14 it." And you'll see their reaction to that. 
15 Significantly, Charles Erickson throughout that day, 
16 March 10th, all four interviews, says that they assault 
17 Mr. Heitholt and that they then leave, going north and west 
18 across Providence. It is at this intersection, the 
19 intersection of Providence and Ash, that Erickson says on 
20 March 10th he encountered Dallas Mallory. That intersection 
21 is known as the Break Time, because there's a convenience 
22 store and gas station called Break Time right there, that is 
23 sort of visible from miles around. 
24 Consider that. Consider it. Erickson says, "We go 
25 this way." Trump, Ornt, Officer Alber's dog, and the luminol 
440 
 1 trail all say they went thataway. Opposite directions. 
2 First interviews with Detective Short, not recorded. 
3 The first videotaped interview is with Detective Short. The 
4 second videotaped interview is done in a police car. And 
5 they're driving around with -- Detective Nichols is the one 
6 who's doing the questioning, and there's another police 
7 officer running the videotape, showing the scenery, and 
8 they're trying to get Chuck to point out various things. And 
9 once again he points out the Break Time. Once again he 
10 points out a retaining wall. A wooden retaining wall in this 
11 area here that he says he remembers climbing. In fact, over 
12 and over again he points out the retaining wall. 
13 It's interesting, because when they approach the 
14 alley that leads to the parking lot of the Tribune, Chuck 
15 asked them, he doesn't tell them, he asks them, "Show me 
16 where this actually happened. Show me where it actually 
17 happened." Not "I remember doing it and here it was." "Show 
18 me where it happened." And Detective Short -- or Detective 
19 Nichols, excuse me, obligedly says, "Well, it's right up 
20 there where that white Jeep's parked." 
21 They drive the route taken by the dog. The trail of 
22 blood. And Chuck says, "No, that doesn't look familiar to me 
23 at all. Not at all." They try to transform the wooden 
24 embankment he claims to remember climbing. And by "wooden 
25 embankment," it's a retaining wall made of beams, like 
441 
 1 railroad ties. They try to say that that must have been this 
2 creek here. Flat Branch I believe is its name. And when he 
3 keeps saying the Break Time, they tried to say that he must 
4 be talking about this Phillips 66 station down here at 
5 Providence and Locust. But he says no. "Doesn't look 
6 familiar. That's not what I'm talking about." 
7 By the way, he says that he saw Dallas Mallory 
8 stopped -- or at a stoplight. And he described Dallas 
9 Mallory as wearing a Halloween costume of a police officer's 
10 uniform. Well, Dallas Mallory had, in fact, been at the 
11 party earlier, the one that was closed down by the police, 
12 wearing the police officer costume. And he had been with 
13 Chuck at that party. But at 2:00 in the morning, this 
14 stoplight is flashing yellow. Nobody stops for the flashing 
15 yellow. Even this stoplight (indicating) is flashing yellow 
16 at 2:00 in the morning. 
17 Then you'll see the interview between Chuck and 
18 Detective Nichols, after Ryan has been arrested, after Ryan 
19 has repeatedly denied having been involved in any type of 
20 homicide, after Ryan has told him, "Look, we left By George's 
21 when it closed, and I took him home." Once again Chuck tells 
22 Nichols, "Well, if Ryan says it didn't happen, I could be 
23 making it up." And you'll see Nichols' reaction to that. 
24 Chuck's arrested. Nichols is arrested. Chuck gets 
25 a lawyer. Chuck's lawyer gets all of the police reports. He 
442 
 1 gets the videotapes. He gets everything. And shares them 
2 with Chuck. 
3 And then in October of 2004, six months later, Chuck 
4 comes to the police department with his lawyer to give his 
5 proffer. And lo and behold, he now remembers, supposedly, 
6 going up this way, going down this way, coming across here. 
7 It's down here that he says Dallas Mallory. But they still 
8 come back here to By George's to drink. Because remember the 
9 motive? The motive for this is to get more money -- 
10 according to Chuck, they're out of money -- for drinking. So 
11 we have to get more money so that we can go back to By 
12 George's and drink more. But By George's has been closed for 
13 an hour by the time Heitholt is dead and the time the people 
14 would have had a chance to get away from the scene and back 
15 there. 
16 So why? Why would Chuck Erickson, having gone to 
17 the police with something that he didn't even know was real, 
18 now be coming in here and telling you, "Oh, yeah, I remember 
19 it plain as day"? 
20 Let's see what happened when he tried to tell 
21 Detective Nichols in that last interview that he was not 
22 sure, that he could have been making it up. 
23 MR. CRANE: Judge, I'm going to object at this point 
24 to -- 
25 THE COURT: If you'd turn that off, please. 
443 
 1 MR. WEIS: Sure. 
2 MR. ROGERS: Stop. Thanks. 
3 MR. CRANE: We -- we expect that the videotapes may 
4 come in. I mean, we were the ones that tendered them to the 
5 defense. I don't think that playing a videotape -- I didn't 
6 have any objection to the still photograph, but a videotape 
7 isn't appropriate for opening statement. The photograph is a 
8 static exhibit. The videotape, which I'm confident the jury 
9 will see during the trial, is not. And I would object 
10 generally to that being -- I may have something else here on 
11 top of that. 
12 (Discussion off the record between Mr. Crane and 
13 Mr. Knight.) 
14 MR. CRANE: If -- the exhibits that are used to 
15 assist the jury in understanding locations, et cetera, are 
16 one thing. But this is evidence that's going to come in as 
17 to statements and is not suitable for opening. 
18 MR. ROGERS: Your Honor, I believe that any exhibit 
19 that I have a good faith basis will be admitted in evidence 
20 is proper for opening statement if I want to use it. And 
21 that's all I want to do. 
22 THE COURT: I'm going to sustain the objection. 
23 MR. ROGERS: Watch the tape when you hear it. And 
24 you'll hear it more than once. You will see Charles Erickson 
25 tell Nichols: "I don't know. I don't remember. It's not 
444 
 1 something I remember. It's something I might have read in 
2 the paper." You'll hear him repeatedly try and say, "Look, 
3 I'm not sure." And you'll see Nichols move his chair up, get 
4 right in Erickson's face and yell at him, and tell him, "I 
5 don't want to hear any of this gibberish. Ryan Ferguson is 
6 saying that he didn't do it, and you're out here hanging out. 
7 You're the one hanging out. Unless you tell us all the 
8 details you can about Ryan Ferguson, you're going down alone. 
9 I don't want to hear any of this 'I might have dreamed it.' 
10 I don't want to hear it. I don't want to hear it. I don't 
11 want to hear it." 
12 You know, if the police had done their job -- 
13 MR. CRANE: Well, Judge, this sounds like argument 
14 to me. 
15 THE COURT: The objection to the form is sustained. 
16 If you'd just tell the jury what the evidence is going to be. 
17 MR. ROGERS: You will see from the evidence that 
18 Chuck Erickson, when he was questioned by the police on March 
19 10, wanted to be reassured that it was just a dream and that 
20 he really didn't do anything. But, instead, you will see him 
21 be berated, coerced, cajoled, and taught what the police 
22 wanted him to say. And then you'll see the differences 
23 between what he claimed to remember then and what he claims 
24 to remember now. It is not the truth. Ryan Ferguson had 
25 nothing to do with the death of Kent Heitholt. 
445 
 1 At the close of this case I will stand before you 
2 again and show you how it is your duty under the law and the 
3 evidence in this case to return a verdict of not guilty as to 
4 each and every charge. 
5 Thank you. 
6 THE COURT: Counsel, just a second before you get -- 
7 are you -- is your witness that you're intending to call 
8 now -- 
9 MR. CRANE: Can we -- 
10 THE COURT: -- one that is -- 
11 MR. CRANE: You know, I'm glad you said something. 
12 Can we -- 
13 THE COURT: You can come to the bar. 
14 - - - 
15 Counsel approached the bench and the following 
16 proceedings were held: 
17 THE COURT: I'm thinking of taking a break now. 
18 They've been here an hour and a half. And I don't want to 
19 stop a witness right in the middle of something. 
20 MR. CRANE: I was just going to say that. That's 
21 fine. 
22 THE COURT: And they can order their lunch. And 
23 then we'll know a better time on your schedule. That's when 
24 I would normally do it if we start at 8:30. 
25 MR. ROGERS: That's good for me. I think the 
446 
 1 defendant needs it worse. 
2 THE COURT: Okay. Thank you. 
3 - - - 
4 The following proceedings were held in open court: 
5 THE COURT: Ladies and gentlemen, this seems like it 
6 might be a good time to take our mid-morning break, since the 
7 next individual called as a witness may be lengthy. And we 
8 would take a break anyway around this time. 
9 The Court again reminds you of what you were told at 
10 the first recess of the Court. Until you retire to consider 
11 your verdict, you must not discuss this case among yourselves 
12 or with others, or permit anyone to discuss it in your 
13 hearing. You should not form or express any opinion about 
14 the case until it is finally given to you to decide. Do not 
15 read, view, or listen to any newspaper, radio, or television 
16 report of the trial. 
17 Les, has the jury already ordered their lunch? 
18 DEPUTY COURT MARSHAL WERNER: Not yet. We'll 
19 probably do that during this break. 
20 THE COURT: Maybe you can do that during a break. 
21 And then let me know what time it will be delivered so that 
22 we can let counsel know about witnesses' scheduling and so 
23 forth. 
24 DEPUTY COURT MARSHAL WERNER: Yes, ma'am. 
25 THE COURT: With that understanding, we'll be in 
447 
 1 recess. 
2 (Recess taken.) 
3 - - - 
4 The following proceedings were held out of the presence 
5 of the jury: 
6 THE COURT: Is the state ready to proceed? 
7 MR. CRANE: Yes, Your Honor. 
8 THE COURT: And the defendant ready to proceed? 
9 MR. ROGERS: Yes, Your Honor. 
10 THE COURT: All right. You may return the jury to 
11 the courtroom. 
12 - - - 
13 The following proceedings were held in the presence of 
14 the jury: 
15 THE COURT: State may call its witness. 
16 MR. CRANE: State calls Deborah Evangelista. 
17 THE COURT: Could you come forward and raise your 
18 right hand, please. 
19 - - - 
20 
21 
22 
23 
24 
25 
448 
 1 DEBORAH LYNN EVANGELISTA, 
2 being first duly sworn by the Court, testified as follows: 
3 THE COURT: Would you take the witness stand, 
4 please, ma'am. 
5 - - - 
6 DIRECT EXAMINATION 
7 BY MR. CRANE: 
8 Q. Good morning. 
9 A. Good morning. 
10 Q. Ma'am, would you give us your name, please? 
11 A. Deborah Lynn Evangelista. 
12 Q. And what was your relationship to the victim in this 
13 case, Kent Heitholt? 
14 A. I was his wife. 
15 Q. And you obvious -- obviously you kept your name; 
16 right? 
17 A. Yes. My maiden name. 
18 Q. Okay. Where are you currently living, ma'am? 
19 A. I'm living in Texas. 
20 Q. I want to direct your attention to what's marked for 
21 identification as State's Exhibit 1, 1A and 1B. 
22 MR. CRANE: Charlie. 
23 MR. WEIS: That's fine. 
24 MR. CRANE: Oh, Jeremy? Okay. 
25 Q. Do you recognize the individual, and in this second 
449 
 1 one, the taller of the two individuals in these two 
2 photographs? 
3 A. I do. 
4 Q. And are these fair and accurate depictions of your 
5 late husband, close in time to his death? 
6 A. They are. 
7 MR. CRANE: Judge, I would offer State's Exhibit 1, 
8 1A and 1B. 
9 MR. WEIS: No objection, Your Honor. 
10 THE COURT: State's Exhibit 1, 1A and 1B, are 
11 admitted. 
12 - - - 
13 State's Exhibits 1, 1A and 1B, admitted into 
14 evidence. 
15 - - - 
16 Q. Okay. Just quickly show these to the jury. The top 
17 photograph, 1A, is a picture of your husband walking down the 
18 street. Actually he's right out here near the courthouse; is 
19 that right? 
20 A. That's right. 
21 Q. And the lower photograph is a picture of your 
22 husband, you've already indicated, with another guy; right? 
23 A. Right. 
24 Q. Do you recognize who that guy is? 
25 A. Yes. 
450 
 1 Q. Who is it? 
2 A. That's Jim Robertson, his boss. 
3 Q. So this was his boss at the Columbia Daily Tribune? 
4 A. Yes. 
5 Q. When, ma'am, were you and Kent married? 
6 A. December 21st, 1981. 
7 Q. Okay. So you'd been married almost 20 years as of 
8 October of 2001? 
9 A. That's right. 
10 Q. What was Kent's age at the time of his death? 
11 A. He was 48. 
12 Q. And did you and Kent have children? 
13 A. Yes. 
14 Q. And who were they -- who are they? 
15 A. Vince Heitholt and Kali Heitholt. 
16 Q. And Vince is how old now? 
17 A. He's 22. 
18 Q. And what about Kali? 
19 A. She's 18. 
20 Q. And does Kali also have a middle name? 
21 A. Yeah. Rose. 
22 Q. So it's Kali Rose Heitholt? 
23 A. Yeah. Rose is actually a family name. Uh-huh. 
24 Q. Okay. Where was -- we won't go into a whole lot of 
25 background at this juncture with respect to Kent, but where 
451 
 1 was he from? 
2 A. Well, he -- 
3 Q. Where did he grow up? How about that? 
4 A. Oh, he grew up in Creve Coeur, Missouri. 
5 Q. Okay. And I believe you mentioned to me before that 
6 he -- as he grew up, he wanted to play college football? 
7 A. Right. 
8 Q. That didn't work out. 
9 A. (Nodding head up and down.) 
10 Q. So what did he go into? 
11 A. Sports writing. 
12 Q. Okay. 
13 A. Journalism. 
14 Q. And he worked at various newspapers in the United 
15 States; is that right? 
16 A. Yes. 
17 Q. All right. And eventually when did Kent move up 
18 here to work for the Columbia Daily Tribune? 
19 A. In 1996. 
20 Q. Okay. And then after you got a place up here and 
21 everything, the family came on up soon thereafter? 
22 A. A couple months later, yeah. He was looking for the 
23 perfect house. He didn't find it, but we felt like it was 
24 more important to be together, so we went ahead and moved. 
25 Q. So he starts on -- in -- do you remember the day he 
452 
 1 started in 1996? What the date was? 
2 A. Well, he just celebrated, that day of his death, his 
3 five-year anniversary. 
4 Q. And that was Halloween of 2001. 
5 A. Uh-huh. 
6 Q. Okay. 
7 A. That's right. 
8 Q. And, in fact, this second photo, 1B, was a 
9 photograph taken of Kent at his fifth anniversary. 
10 A. That's right. 
11 Q. On October 31st, 2001. 
12 A. That's right. 
13 Q. And it looks like he got some kind of a gift there 
14 or something. 
15 A. Right. As I -- I remember correctly, it was golf 
16 balls, a whole big box of them, because he liked to play 
17 golf. 
18 Q. Okay. And what was his position throughout his 
19 five-year tenure there at the Tribune? 
20 A. He was a sports editor. He also wrote -- 
21 Q. Okay. 
22 A. -- for the paper. 
23 Q. What were his normal, if he had normal work hours -- 
24 how about if I ask you this. When would he typically be at 
25 the office? 
453 
 1 A. Well, he'd go in in the morning, after taking Kali 
2 to school, and then he'd come back in the afternoon for a 
3 little while and he'd eat dinner and -- we'd eat dinner 
4 together and watch a little TV, and then he'd go back to 
5 work, and he'd work until early the next morning. 
6 Q. Okay. And then get up and do it all again the next 
7 day. 
8 A. Yeah. 
9 Q. Okay. By the way, I should ask, how, if you were 
10 employed, how were you employed during the time you all lived 
11 here in Columbia? 
12 A. I was a case manager. I worked for Central Missouri 
13 Regional Center, Department of Mental Health. It was the 
14 Division of Mental Retardation and Developmental 
15 Disabilities. 
16 Q. Where was your daughter Kali, who, by the way, Kali 
17 is here with us today. 
18 A. That's -- she was sitting next to me. 
19 Q. Okay. She's seated right back here behind this 
20 first guy? 
21 A. Yes. 
22 Q. Okay. What school was Kali going to back in October 
23 of 2001? 
24 A. She was going to Hickman High School. 
25 Q. Okay. There 's two high schools in Columbia? 
454 
 1 A. Yes. 
2 Q. One of them's Hickman High School and the other one 
3 is? 
4 A. Rock Bridge. 
5 Q. I want to direct your attention to what's marked for 
6 identification State's Exhibit 2. 
7 MR. CRANE: And Judge, I'm going to just ask the 
8 Court, with the defense counsel's permission, to simply take 
9 judicial notice of the calendar year 2001, specifically 
10 October and November. 
11 MR. WEIS: No objection. 
12 THE COURT: Court will judicially notice those 
13 months. 
14 MR. CRANE: Then I'll offer State's Exhibit 2. 
15 THE COURT: Any objection? 
16 MR. WEIS: No, Your Honor. 
17 THE COURT: Exhibit 2 is admitted. 
18 - - - 
19 State's Exhibit 2 admitted into evidence. 
20 - - - 
21 Q. Okay. October 2001 shows that the 31st was a 
22 Wednesday. That doesn't sound shocking to you, does it? 
23 A. No, it doesn't. Uh-uh. 
24 Q. Okay. All right. What about that day was -- you 
25 talked about normal work hours. You had a job. Anything 
455 
 1 abnormal about that day, when you got up and went about your 
2 business? 
3 A. Yeah. It was a pretty typical day. I came home 
4 from work. I got home about a quarter 'til 5. I made sure 
5 that the jack-o'-lanterns, all the Halloween decorations were 
6 out. Made dinner. And Kent came home for dinner. We ate 
7 dinner together and watched television. Ate and watched 
8 television. And then he went back to work. 
9 Q. Okay. And ma'am, when was the last time you saw 
10 your husband alive? 
11 A. That evening. 
12 Q. Okay. Going -- what you've just described. You 
13 watched a little bit of TV -- had dinner with you, watched a 
14 little bit of TV, and went on into the office. 
15 A. That's right. 
16 Q. Did your husband wear a watch? 
17 A. Yes. 
18 Q. What -- describe that watch, if you would. 
19 A. It was -- it was just a cheap watch. It was a 
20 Timex. A gold flex band. He was hard on watches, so. I had 
21 gotten that for him for Christmas the previous year. 
22 Q. And you indicated it was a -- well, I don't want to 
23 put words. Was a pocket watch or was it a wrist watch? 
24 A. No. It was a wrist watch. 
25 Q. Okay. And I'm going to direct your attention back 
456 
 1 to 1B here. Do you see, on his arm, in this photograph taken 
2 earlier on October 31st, '01 -- 
3 A. Yes. 
4 Q. -- what you're describing? 
5 A. Yes. 
6 Q. Could you point it out for us, please? 
7 A. There's his watch (indicating). 
8 Q. Okay. Pointing out the wrist watch there, in the 
9 arm holding the box. Okay? 
10 And -- I think we covered -- I was thinking you -- 
11 oh. You said it was cheap. But you bought it. 
12 A. It was a Timex. 
13 Q. What was Kent's practice about carrying money? 
14 Cash. 
15 A. He never carried very much with him. 
16 Q. What about a wallet? 
17 A. Yeah, he had a wallet, which he, you know, he kept 
18 either in his pocket, or he would keep it in his car. 
19 Q. Okay. So if he didn't carry his wallet on him, it's 
20 your recollection he'd keep it where? 
21 A. In his car. 
22 Q. Okay. What vehicle did Kent drive? What was his 
23 car? 
24 A. It was a Neon -- I mean a Nissan Maxima. A black. 
25 Q. Okay. Ma'am, who else had access or used or rode in 
457 
 1 that car that you're aware of? 
2 A. Well, Kali would have, because -- 
3 Q. Okay. Your-all's daughter? 
4 A. -- Kent was teaching her to drive. 
5 Q. Okay. How did Kali get to and from school? 
6 A. Usually Kent took her. 
7 Q. Okay. Are you aware whether anybody else rode in 
8 the car on those occasions or any others? 
9 A. Maybe some of her friends, because Kent would pick 
10 up Kali and, you know, take some of her friends home. And 
11 then colleagues. 
12 Q. What? 
13 A. Colleagues. Maybe -- 
14 Q. Oh, you mean people he worked with? 
15 A. Yeah. 
16 Q. So he didn't -- when he was going to a game or 
17 something here in town, he didn't have a company car? 
18 A. Oh, no. 
19 Q. Okay. So he'd ride over maybe with another sports 
20 guy in a company car to go to a ball game or something. 
21 A. Right. 
22 Q. And that was -- he had to keep up with all these 
23 sporting events going on -- 
24 A. Oh, yeah. 
25 Q. -- around the area; right? Okay. 
458 
 1 A. Nothing was too small or -- you know, so. He -- he 
2 traveled a lot. 
3 Q. What about his car keys? Do you remember what those 
4 looked like or may have consisted of? 
5 A. That would have been a house key, his car key, then 
6 the keys to our other cars. 
7 Q. Okay. They didn't have any distinctive key ring, 
8 you know, like a -- you know, no decorative thing attached to 
9 the keys that you recall? Pretty much keys. 
10 A. No. Just keys. Yeah. 
11 Q. Okay. Strange question: What did your husband use 
12 to hold his pants up? 
13 A. Always a belt. 
14 Q. All right. And do you recall whether he wore a belt 
15 on this day, October 31st, 2001? 
16 A. Yes. He definitely wore a belt. 
17 Q. Okay. He wasn't a suspenders guy? 
18 A. Many -- years ago, but not recently, no. 
19 Q. Not during this time period? 
20 A. No. Uh-uh. 
21 Q. Now in State's Exhibit 1B, his sweater goes over his 
22 belt area, but directing your attention here to 1A, what do 
23 you see around his midsection there? 
24 A. That's his belt right there (indicating). 
25 Q. And we see his belt in this top photograph. Okay. 
459 
 1 And was that the belt that he regularly wore? Right 
2 up until the time of his death, is what I'm getting at. 
3 A. Yes. 
4 Q. Okay. Ma'am, I want to show you what's marked for 
5 identification as State's Exhibit 47. 
6 MR. CRANE: Approach the witness, Judge? 
7 THE COURT: You may. 
8 Q. I'm going to ask you, ma'am, if you -- we're not 
9 going to publish that to the jury yet -- if you recognize 
10 that item right there. 
11 A. Yes. That's his belt buckle. 
12 Q. Okay. And that's the buckle that's depicted in the 
13 top photograph here? 
14 A. Yes. 
15 Q. Okay. 
16 MR. CRANE: Judge, I'll go ahead and offer State's 
17 Exhibit 47 at this point. 
18 I -- we can do it later, if you want to. 
19 MR. WEIS: We have no objection. 
20 MR. CRANE: What's that? 
21 MR. WEIS: No objection. 
22 THE COURT: State's Exhibit 47 is admitted. 
23 - - - 
24 State's Exhibit 47 admitted into evidence. 
25 - - - 
460 
 1 Q. After Kent -- after you saw Kent for the last time 
2 that night, and he went on into the office, did you have any 
3 other conversation with him? 
4 A. Yes. I called him to let him know that Kali had 
5 lunch money and he didn't need to get her any. He would go 
6 to the ATM after work sometimes and get her -- get her her 
7 lunch money. And I told him he didn't need to do that. 
8 Q. Can you tell us about what time that may have been 
9 when you made that phone call? 
10 A. Yeah. 10. Around 10. 
11 Q. And ma'am, that's the last time you spoke to your 
12 husband? 
13 A. Yes. 
14 Q. Prior to when Chuck Erickson and the defendant in 
15 this case were arrested in March of 2004, did you know either 
16 one of them? 
17 A. No. 
18 Q. Okay. And I'm going to show you some photographs. 
19 The first two are marked for identification as 17 and 18. 
20 And just ask if you recognize either of these two 
21 individuals. 
22 A. No. 
23 Q. Okay. You hadn't seen them before this case -- 
24 their arrests in March of '04. 
25 A. No. 
461 
 1 Q. Okay. And also, just for the record, let me show 
2 you what's marked for identification State's Exhibits 19 and 
3 20. Do either of those two photographs of the same guys, 
4 more recently, ring a bell? I'm not talking about what you 
5 may have seen afterwards. 
6 A. Right. No. 
7 Q. Okay. Ma'am, how did you find out that Kent had 
8 been murdered? 
9 A. Around 4:00 in the morning, two police officers came 
10 to the door. One of them was a detective and one of them had 
11 a uniform on. They knocked on the door and rang the 
12 doorbell. And Kali got up. She went down the stairs to open 
13 the door. I remember telling her, "Look and see who it is 
14 first." She opened the door. It was the two police 
15 officers. And the first thing I thought of was that it was 
16 just some vandalism. You know, I had pumpkins out and 
17 ceramic pumpkins and, you know. It's weird, you know, what 
18 goes through your mind. I just thought -- you know. And I 
19 just woke up. I was (witness making sound). And they came 
20 up the stairs. And I asked them to sit down. And the way 
21 they looked, I knew something was very wrong. And I thought 
22 at first it was my son. I mean, you just -- you know. I 
23 thought, Uh, something's happened to Vince. And I sat down. 
24 And Detective McGuire bent down and took my hand, and he 
25 said, "There's been a horrific crime." He said they found 
462 
 1 Kent lying beside his car, dead. And I said, "How did it 
2 happen?" And they said that he had been beaten to death. 
3 Q. Okay. Let me stop you. After the police delivered 
4 that news to you -- and that was November -- early morning 
5 November 1; correct? 
6 A. Yes. 
7 Q. Thereafter, after you had a chance to collect 
8 yourself, in the days that followed, did the police come and 
9 ask you other questions, follow-up questions about this case? 
10 A. Yes. 
11 Q. Okay. Let me show you what's marked for 
12 identification as State's Exhibit 3. 
13 I'm going to ask if you recognize the contents of 
14 this bag. 
15 A. Yes. 
16 Q. Okay. What is that? 
17 A. That's Kent's hair brush. 
18 Q. Okay. 
19 A. Yeah. 
20 MR. CRANE: Judge, I'm going to -- could you hear 
21 her? 
22 MR. WEIS: Yes. 
23 MR. CRANE: I'm going to offer State's Exhibit 3. 
24 MR. WEIS: No objection, Your Honor. 
25 THE COURT: State's Exhibit 3 is admitted. 
463 
 1 - - - 
2 State's Exhibit 3 admitted into evidence. 
3 - - - 
4 Q. Okay. Ma'am, this item was at your residence, and 
5 Kent used it? 
6 A. Yes. 
7 Q. Okay. And after you found out about his murder, who 
8 contacted you, reference hair samples of your husband? 
9 A. The police did. 
10 Q. Okay. And what did you provide them with? 
11 A. The hair brush. 
12 Q. Okay. And that's the one. 
13 A. Yes. 
14 Q. Okay. 
15 MR. CRANE: Thank you, ma'am. 
16 I don't have any other questions of this witness, 
17 Judge. 
18 THE COURT: You may inquire. 
19 MR. WEIS: Thank you, Your Honor. 
20 - - - 
21 CROSS-EXAMINATION 
22 BY MR. WEIS: 
23 Q. Miss Evangelista, my name's Jeremy Weis. I'm one of 
24 the attorneys that's representing Mr. Ferguson in this 
25 matter. You said that you last saw your husband, 
464 
 1 Mr. Heitholt, on the evening of October 31st of 2001; is that 
2 correct? 
3 A. That's correct. 
4 Q. And what time was -- did he leave for work again 
5 that night? 
6 A. I would say 8, 9. Around 8 or 9. 
7 Q. Okay. And that's -- 
8 A. In the evening. 
9 Q. And that 8 or 9 in the evening, that's the last time 
10 you saw him? 
11 A. Yes. 
12 Q. And then he went to the office? 
13 A. Yes. 
14 Q. And you said you were contacted by police officers 
15 from the Columbia Police Department. What time of the 
16 morning was that? 
17 A. Around 4:00. 
18 Q. And they came to your house in Columbia? 
19 A. Yes. 
20 Q. And you said -- I believe your testimony was that 
21 your daughter is the one who answered the door? 
22 A. She was in front of me. I was right behind her. 
23 Q. Okay. The police officers, they just -- they 
24 informed you at that time that your husband had died; 
25 correct? 
465 
 1 A. Yes. 
2 Q. Did they take a statement from you at that time? 
3 A. I don't know if they took a statement. I wouldn't 
4 really call it a statement. 
5 Q. Okay. Did you have to meet with -- you met with 
6 police officers after what would be November 1st of 2001. 
7 A. Yes. 
8 Q. You met with them on a number of occasions; is that 
9 correct? 
10 A. Uh-huh. That's right. 
11 Q. Okay. And during that investigation -- and this 
12 investigation, for the record, went on for several years. 
13 A. Right. 
14 Q. In fact, they -- the police department didn't have 
15 anybody arrested in this case until March of 2004; is that 
16 correct? 
17 A. That's when I got the phone call that they had found 
18 them, yes -- 
19 Q. Okay. 
20 A. -- and they had been arrested. 
21 Q. So from October 31st of 2001, when Mr. Heitholt 
22 passed away, 'til March of 2004, 26, 27 months, somewhere 
23 around there? 
24 A. Right. 
25 Q. Okay. And during that time, you moved out of the 
466 
 1 Columbia area; is that correct? 
2 A. That's right. 
3 Q. Okay. And when did you move out of Columbia? 
4 A. August of 2003. 
5 Q. And there was a period of time where -- let me ask 
6 you this. As I said -- or as you said, there was a long 
7 period of time where this crime went un -- there were no 
8 arrests made in this crime; is that correct? 
9 A. That's correct. 
10 Q. Did the police ever talk to you about your 
11 relationship with your husband? 
12 A. Oh. They wanted to know, yeah, if I had a 
13 boyfriend. 
14 Q. Did they ever search the house? Your house? 
15 A. No. They had asked me that night if Kent took any 
16 medication. And we said yes, you know, and told them where 
17 it was. And I believe they went and got it and -- but they 
18 didn't search the house, no. 
19 Q. They didn't ask you to -- they didn't ask to search 
20 the house? 
21 A. No. 
22 Q. They didn't ask to search any of the other vehicles? 
23 A. No. 
24 Q. Okay. And when they got the medications that you 
25 indicated, those were down in Kent's room in the basement; is 
467 
 1 that correct? 
2 A. They were in the bathroom downstairs, uh-huh. 
3 Q. And that's the bathroom he used in the house? 
4 A. One of them, yeah. 
5 Q. Okay. But that was his primary bathroom? 
6 A. Well -- 
7 Q. Where he got ready in the morning? 
8 A. Well, actually, it didn't even have a shower, so he 
9 had to shower upstairs. 
10 Q. And State's Exhibit 47 I believe, the hair brush, 
11 was that in the bathroom in the basement? 
12 A. Yes, it was. 
13 Q. And then the state -- or the police department asked 
14 you for some hair samples; is that correct? 
15 A. Uh-huh. 
16 THE COURT: You need to say yes -- 
17 A. Oh, I'm sorry. Yes. 
18 Q. That's okay. She has trouble taking down the nods. 
19 A. Oh, sure. 
20 Q. And they called you and asked you for a hair sample 
21 from Mr. Heitholt -- of Mr. Heitholt; is that correct? 
22 A. That's right. 
23 Q. Okay. And that was a phone call that the police 
24 department made to you or a police officer made to you? 
25 A. I believe so. 
468 
 1 Q. Okay. And you agreed to provide them with a hair 
2 sample? 
3 A. Yeah. Right. 
4 Q. And by doing so, you grabbed what's been marked and 
5 admitted as State's Exhibit 47. 
6 A. Right. Kent's -- 
7 Q. The hair brush? 
8 A. -- hair brush. Uh-huh. 
9 Q. And you didn't give them -- you didn't personally 
10 give the hair brush to the officers, did you? 
11 A. If I remember correctly, Kali and I were getting 
12 ready to go out of town, and I put it in a bag, at -- and 
13 left it in our mailbox for them to get. 
14 Q. Okay. 
15 A. Come by and get. And so -- 
16 Q. You didn't drop it off at the police station? 
17 A. No. I don't think so, no. Uh-uh. No. 
18 Q. And somebody picked up the hair brush from you. 
19 A. Right. 
20 Q. The one that you left. 
21 A. Right. 
22 Q. Okay. And back to the period of time where this 
23 case was unsolved, or there were no arrests made, the police 
24 didn't ask you for financial records, did they? 
25 A. No. 
469 
 1 Q. And you never provided any financial records to the 
2 police department. 
3 A. No. 
4 Q. And the police didn't ask you for your phone 
5 records. 
6 A. No. 
7 Q. And you didn't provide any phone records to the 
8 police department in this case. 
9 A. No. 
10 Q. In fact, you didn't have contact with the police 
11 department from I believe April 17th of 2002 until like May 
12 21st of 2004. Is that correct? 
13 A. That sounds correct. 
14 Q. Okay. And I know in State's Exhibit -- if I can 
15 find it. The -- I'm sorry. I've been referring wrong. 
16 State's Exhibit Number 47 is the belt buckle. State's 
17 Exhibit 47, I think you refer -- 
18 MR. WEIS: May I approach the witness? I'm sorry. 
19 THE COURT: Sure. 
20 Q. In State's Exhibit Number 1, 1A -- and that's a 
21 photograph of Mr. Heitholt wearing his belt. 
22 A. Right. 
23 Q. Okay. And you've now identified to the jury today 
24 that that's the belt -- that was definitely his belt, and 
25 that's the one he wore. 
470 
 1 A. Right. 
2 Q. Okay. Do you remember talking to police and being 
3 shown the belt buckle around the time of the murder? 
4 A. It was -- yeah. It probably was weeks, I'm -- I 
5 think -- 
6 Q. Okay. 
7 A. -- when they showed it to me. 
8 Q. You were certainly shown the belt buckle by the 
9 police department. 
10 A. Right. 
11 Q. All right. And that's the same one that's now been 
12 admitted as State's Exhibit 47. 
13 A. Yes. 
14 Q. Okay. And at that time, you had actually told the 
15 police, "I'm not sure if that's his belt buckle or not"; 
16 isn't that correct? "It looks like it, but I'm not sure"? 
17 A. I really don't remember. 
18 Q. Okay. But you believe today that it is. 
19 A. Yes. 
20 Q. Okay. But you're not saying that you definitely 
21 recalled it back in 2001 or whenever it was you were shown 
22 it. Shortly after. 
23 A. I don't remember that. 
24 Q. Okay. And one more thing. In -- again, in State's 
25 Exhibit 1, and I'm going to refer to 1B, you said that was a 
471 
 1 picture of Jim Robertson and your husband, Mr. Heitholt? 
2 A. The day of his death, yes. 
3 Q. The day of his death. And Mr. Heitholt is 
4 wearing -- that's what he wore to work that day? 
5 A. Yes. That -- that's what -- would have been what he 
6 wore to work that day. 
7 Q. Okay. And that's, you know, October 31st. He's 
8 wearing a short-sleeved shirt? 
9 A. Could -- yeah. 
10 Q. Okay. And I'm -- I'm just asking you to identify 
11 the picture from the day, picture 1B, short-sleeved shirt. 
12 A. Right. 
13 Q. Okay. Great. 
14 MR. WEIS: That's all the questions I have, Your 
15 Honor. Thank you. 
16 THE COURT: Redirect? 
17 - - - 
18 REDIRECT EXAMINATION 
19 BY MR. CRANE: 
20 Q. Well, just one thing. On that outfit he's got on 
21 there in the bottom picture, you said he got up and would 
22 come in and work in the day. 
23 A. Uh-huh. 
24 Q. Is that right? 
25 A. That's right. 
472 
 1 Q. And then he'd come home and leave again. 
2 A. Right. 
3 Q. Okay. I don't -- I mean, were you even there to see 
4 what he had on the morning of the 31st? Or did you leave for 
5 work first or did he leave? 
6 A. I would have left first, yes. 
7 Q. Before he got dressed? 
8 A. Right. 
9 Q. Okay. So -- well, I mean, I guess you also don't 
10 know if he had a short-sleeved shirt on inside there and then 
11 put on a jacket. 
12 A. That's true. 
13 Q. Okay. 
14 A. I don't know. 
15 Q. But you -- do you have -- and I don't think I've 
16 ever -- he changed, or could have changed, after he got home, 
17 and then left again for work and stayed late at night; right? 
18 A. Right. 
19 Q. Okay. 
20 A. Uh-huh. 
21 MR. CRANE: I think that's all I have, Your Honor. 
22 THE COURT: Recross? 
23 MR. WEIS: Nothing further. 
24 THE COURT: Thank you so much. You may step down. 
25 You may call your next witness. 
473 
 1 MR. CRANE: Your Honor, the state calls Charles 
2 Erickson. 
3 THE COURT: Would you raise your right hand, please. 
4 - - - 
5 CHARLES TIMOTHY ERICKSON, 
6 being first duly sworn by the Court, testified as follows: 
7 THE COURT: Would you take the witness stand, 
8 please. 
9 - - - 
10 DIRECT EXAMINATION 
11 BY MR. CRANE: 
12 Q. Give us your name, sir. 
13 A. Charles Timothy Erickson. 
14 Q. Make sure you speak up so even this guy on the jury 
15 back farthest from you can hear; okay? 
16 A. All right. It's Charles Timothy Erickson. 
17 Q. And what's your current age? 
18 A. I'm 21 years old. 
19 Q. How old were you back on October 31st of 2001? 
20 A. I was 17 years old. 
21 Q. Mr. Erickson, on the early morning of November 1, 
22 2001, what did you do to Kent Heitholt? 
23 A. I robbed him and I beat him with a tire tool. 
24 Q. And what did the defendant in this case, Ryan 
25 Ferguson, do to him? 
474 
 1 A. He robbed him and he strangled him. 
2 Q. Do you see Ryan Ferguson in the courtroom here 
3 today? 
4 A. He's right there (indicating). 
5 MR. CRANE: Judge, I'd ask the record reflect that 
6 this witness has identified the -- what is it? A tan jacket? 
7 Identified -- is it the individual in the tan jacket? 
8 A. Yeah. That's correct. 
9 MR. CRANE: Judge, I'd ask the record reflect this 
10 witness has identified the defendant. 
11 THE COURT: The record will so reflect. 
12 Q. Where are you originally from? 
13 A. I was born in Normal, Illinois, but I'm originally 
14 from Bloomington, Illinois. 
15 Q. When did you start living here in Columbia? 
16 A. It was my 8th grade year. I believe it was 1998. 
17 Q. Okay. And that's, the way our schools work here, 
18 that's junior high? 
19 A. Yeah. That's correct. 
20 Q. Back on Halloween of 2001, where were you going to 
21 school? 
22 A. I was going to Rockbridge High School. 
23 Q. And what year were you at Rockbridge High School? 
24 A. I was a junior. 
25 Q. And where were you living back then? 
475 
 1 A. I was living in Columbia. 
2 Q. With whom? 
3 A. With my parents. 
4 Q. Your mom and dad? 
5 A. Yeah. That's correct. 
6 Q. What's your dad do for a living? 
7 A. My dad, he works for Columbia Insurance. 
8 Q. At some point did he have a law degree, or what's 
9 his -- is that what he does for the insurance company? 
10 A. Well, yeah, he was a lawyer. He passed his bar in 
11 New York and Illinois. But -- 
12 Q. What's he do with the insurance company? 
13 A. He's the vice president for claims. 
14 Q. What about your mom? What's she do? 
15 A. My mom's a microbiologist at University Hospital. 
16 Q. Here in town? 
17 A. Yeah. That's correct. 
18 Q. What about brothers and sisters? You got any? 
19 A. Yeah. I've got a younger sister named Karen. She's 
20 18. She's in her senior year at Rockbridge. 
21 Q. So when this all happened, she'd have been 14? 
22 A. Yeah. That's correct. 
23 Q. Okay. She was living there at home with you and 
24 your mom and your dad? 
25 A. That's correct. Actually she would have been -- she 
476 
 1 would have been 15. 
2 Q. Okay. Did my math wrong there. 
3 How is it you first met the defendant? 
4 A. We had a class or two together and we ran track 
5 together. 
6 Q. Okay. Is that in 8th grade, when you first got 
7 here? 
8 A. Yeah. That's correct. 
9 Q. Okay. And then how would you characterize your 
10 relationship with him after that? 
11 A. We hung out. 
12 Q. You first met in 8th grade? 
13 A. Yeah. He'd come to my house; I'd go to his house. 
14 We'd just, you know, we'd go and hang out at other people's 
15 houses. 
16 Q. Okay. You had friends of your own, and he had 
17 friends of his own? 
18 A. Yeah. A lot of them were mutual friends. 
19 Q. Okay. Well, was -- was Ryan Ferguson the only 
20 friend you had? I guess is what I'm getting at. 
21 A. No. 
22 Q. Okay. You'd hang out with him, kind of lived -- 
23 what about where he lived? 
24 A. He lived about -- about two miles away from my 
25 house. 
477 
 1 Q. Okay. Roughly the same part of town? 
2 A. Yeah. That's correct. 
3 Q. Okay. Did -- I mean, did you date females? 
4 A. Yeah. 
5 Q. Junior high and high school? 
6 A. Yeah. Freshman year, I remember he -- he was kind 
7 of with this girl named Stephanie Daily. 
8 Q. Well, I mean, I don't know how much specifics we 
9 need to go into now. The defense may want to go into that, 
10 but. What I'm getting at is: He'd date girls and you dated 
11 girls and -- 
12 A. Yeah. 
13 Q. -- what have you. 
14 A. Yes. 
15 Q. Okay. What -- since you met him, when you were in 
16 8th grade, and we'll go up to when this happened in the fall 
17 of 2001, what conflicts or problems or big falling-outs or 
18 anything did you all have? 
19 A. None. 
20 Q. Okay. Didn't get mad -- you wanted to date his girl 
21 or anything like that? 
22 A. No. 
23 Q. Okay. Got along okay? 
24 A. Yeah. That's correct. 
25 Q. All right. How well did you know his parents? 
478 
 1 A. I knew them okay. Not real well. I think -- I had 
2 seen his mom around more than his dad. 
3 Q. Okay. Sometimes you'd be over at his house and 
4 they'd be there, I guess? 
5 A. Yeah. That's correct. 
6 Q. Do you see either of them in the courtroom here 
7 today? 
8 A. Yeah. They're right over here. 
9 Q. Okay. Right over here in the front row, to my 
10 right? 
11 A. That's correct. Yes. 
12 Q. Okay. Did you have any conflicts or anything with 
13 either of them? 
14 A. No. 
15 Q. Okay. You said you saw his mom more often. How did 
16 you get along with her? 
17 A. She's very nice. She's a nice lady. 
18 Q. Okay. Sir, I want to direct your attention to 
19 October 31st of 2001. We've already shown another witness a 
20 calendar there. Shows that was a Wednesday. School night. 
21 School day. Correct? 
22 A. That's correct, yes. 
23 Q. Okay. You don't have any argument with that, do 
24 you? 
25 A. No, I don't. 
479 
 1 Q. Okay. That day, do you remember what -- anything 
2 eventful that happened? I mean, did you go to school that 
3 day? 
4 A. Yes, I did. 
5 Q. Okay. Anything out of the ordinary? I mean other 
6 than it being Halloween -- 
7 A. No. Nothing. 
8 Q. -- that day? 
9 A. Nothing I can recall, no. 
10 Q. Okay. After you got out of school that day, where 
11 did you end up going? What was your plans for the night and 
12 what did you end up doing? 
13 A. Well, we knew of a party at an individual named Ryan 
14 Swilling's house. And before that, I went with David 
15 Igleheart and Scott Turner and maybe a couple other people, 
16 and we went to my friend Jon Cole's house. And the plan was: 
17 We were going to -- his folks had a bunch of retro '70s 
18 stuff, and we were going to -- 
19 Q. Some what? 
20 A. Some like retro '70s clothes. 
21 Q. Okay. 
22 A. And that was -- we were just -- we went over there 
23 to look for Halloween costumes. 
24 Q. Okay. And so that is -- this -- your buddy Jon 
25 Cole's mom and dad's house. 
480 
 1 A. Yeah. That's correct. 
2 Q. And they had some old clothes, some '70s stuff -- 
3 A. Yeah. 
4 Q. -- which I probably got some '70s stuff myself, but 
5 that's -- you thought that would be a suitable Halloween -- 
6 A. Yeah. Well, they had all kinds of stuff. I 
7 remember we were just in this kind of storage area. And some 
8 people put on military stuff. And there was just a bunch of 
9 '70s stuff. 
10 Q. Okay. 
11 A. I thought that would be the easiest. 
12 Q. I'm sorry. I didn't mean to cut you -- did you have 
13 a driver's license back then? 
14 A. I believe so, yes. 
15 Q. Did you have your own car back then? 
16 A. No. No, I didn't. 
17 Q. So if you drove, whose car did you drive? 
18 A. My folks'. My parents'. 
19 Q. Okay. But you weren't doing the driving after 
20 school -- 
21 A. No. 
22 Q. -- on this -- huh? 
23 A. No. 
24 Q. Okay. Let me show you what's, if I can here -- 
25 first of all, let me show it to the defense -- what's marked 
481 
 1 for identification State's Exhibit 5. 
2 Let me first show this to you. This is a drawing. 
3 Map. Do you recognize what's generally depicted in this 
4 photograph? 
5 A. Yes, I do. 
6 Q. Does this look like a portion of Columbia, Missouri? 
7 A. Yes. 
8 Q. Okay. And some of these locations are already 
9 marked on here? 
10 A. That's correct. 
11 Q. Okay. 
12 MR. CRANE: Well, let me just see if there -- do 
13 you -- Judge, I would offer at this time State's Exhibit 5. 
14 MR. ROGERS: No objection, Your Honor. 
15 THE COURT: State's Exhibit 5 is admitted. 
16 - - - 
17 State's Exhibit 5 admitted into evidence. 
18 - - - 
19 Q. I'm going to turn this around real quick. Let's go 
20 back, if we could. And I -- 
21 MR. CRANE: The jury will have another opportunity 
22 to see these, Your Honor, if I'm able to pass them, but at 
23 this point I want to cover it with the witness. 
24 MR. ROGERS: You want the easel? 
25 MR. CRANE: Well, he can't get down at this point. 
482 
 1 He's got the leg irons on. 
2 Q. Let's go back. Your place is marked here at the 
3 lower corner here. What's -- what was your address? 
4 A. It was 3706 Chinkapin Court. 
5 Q. Okay. And then what street was Ferguson on? 
6 A. I think it was Lloyd Drive. 
7 Q. Okay. Down here? 
8 A. Yeah. 
9 Q. Okay. Is that -- I mean, I know this isn't to scale 
10 or anything, but is this roughly -- 
11 A. Yeah, that's correct. 
12 Q. -- accurate? 
13 A. That's correct. 
14 Q. And then you said after school you went to Jon 
15 Cole's residence? 
16 A. That's correct. 
17 Q. And do you remember what part of town that was in? 
18 A. Northern part of town. 
19 Q. And do you remember a street near there or anything 
20 like that where Cole lived? 
21 A. It was -- I think he lived off of Jackson. And that 
22 was off of Texas. 
23 Q. Okay. We've got Jon Cole's residence up here. 
24 Again, without being just completely accurate on scale, is 
25 that roughly where we're talking? 
483 
 1 A. Yeah. 
2 Q. Okay. And then after you got your -- did you -- 
3 well, did you get something different to wear to the deal? 
4 To the party? 
5 A. Yeah, I did. I found some bellbottom pants, some 
6 jeans, some light blue jeans, and a -- like a button-up 
7 shirt, a blue button-up shirt that had a kind of -- had a 
8 wide collar on it, and the sleeves were kind of wide. And 
9 when it was untucked, it kind of looked '70s I guess. And -- 
10 Q. What about -- do you remember what you did with the 
11 clothes you took -- had on when you got there? 
12 A. I can't remember. 
13 Q. Okay. What about shoes? 
14 A. I had some -- they were kind of like penny loafers. 
15 I'm not exactly sure what kind of shoes they were. 
16 Q. Well, no, I'm asking, where did you -- what did you 
17 wear from the Cole -- 
18 A. Oh. 
19 Q. -- residence to the party? 
20 A. Yeah. Yeah. I just wore -- they were like penny 
21 loafer shoes. 
22 Q. Okay. That you got at -- from Mr. Cole's folks? 
23 A. Yeah, that's correct. 
24 Q. Okay. All right. Now, you got that getup on. And 
25 where did you go? 
484 
 1 A. From there I went to Ryan Swilling's house. 
2 Q. Okay. And was this, again, with a group of the 
3 buddies you were with that night? Everybody was going to the 
4 party? 
5 A. That's correct, yes. 
6 Q. How did word get out about this party? 
7 A. It was just kind of word around school. 
8 Q. Okay. And do you remember the street that the 
9 Swilling party was on? If you don't, the area? 
10 A. It was across from the Forum Shopping Center. I 
11 think it was Highridge. 
12 Q. Okay. Well, we don't have Forum Shopping Center on 
13 State's Exhibit 5, but, again, "Swilling party," 
14 (indicating). Does that roughly look accurate? 
15 A. Yeah. That's correct. 
16 Q. Okay. 
17 A. It was -- yeah. It was behind Dairy Queen. 
18 Q. So it's really not far from your-all's houses. 
19 A. No. No. 
20 Q. Okay. What was this -- we keep saying "Swilling 
21 party." Who's that guy -- who is that guy? 
22 A. His name was Ryan Swilling. And he was I think a 
23 couple years older than I am. He was at least a couple 
24 grades higher than I was. And I just knew him through a 
25 friend. I didn't -- I didn't really know him very well. 
485 
 1 Q. Okay. He's an older guy that had moved out and had 
2 his own pad? 
3 A. Yeah, with a couple other guys. I think Ryan Alder 
4 also lived with him. And I can't -- I can't remember who 
5 else. 
6 Q. Okay. And let me show you what's marked for 
7 identification as 6, 6A and B. 
8 MR. ROGERS: No objection. 
9 Q. Take a look at these photos. Do you recognize 
10 what's in those two photos? 
11 A. Yeah. That's Ryan Swilling's house. 
12 Q. Okay. Are those fair and accurate depictions of how 
13 it looked back then? Although I guess it was dark back then. 
14 A. Yeah. That's correct. 
15 Q. Okay. 
16 MR. CRANE: Judge, I'd offer 6, 6A and 6B. 
17 MR. ROGERS: No objection, once again, Your Honor. 
18 THE COURT: State's Exhibits 6, 6A and 6B, are 
19 admitted. 
20 - - - 
21 State's Exhibits 6, 6A and 6B, admitted into 
22 evidence. 
23 - - - 
24 Q. Okay. So this is a picture of where the party went 
25 down? 
486 
 1 A. Yeah. 
2 Q. Okay. Do you remember exactly when you got there? 
3 Or if you don't, can you estimate? 
4 A. I think it was around 8:00. Sometime around there. 
5 I can't be certain, though. 
6 Q. And while you were at this party at the Swilling 
7 residence, what were you wearing? The whole time you were at 
8 that party. 
9 A. I was wearing the bellbottom jeans and the blue 
10 button-up shirt and the penny loafers. 
11 Q. Okay. The same thing you described you left Jon 
12 Cole's in? 
13 A. Yeah. That's correct. 
14 Q. How big was this thing, this party at Swilling's? 
15 A. There were probably between, I don't know, 50 and 75 
16 people there. Maybe a hundred. It just changed from time to 
17 time. People would come; people would go. 
18 Q. What was going on? 
19 A. Just a lot of drinking, listening to music. Just 
20 standing around for the most part. 
21 Q. Okay. Loud music? 
22 A. It wasn't real loud. 
23 Q. You didn't think it was all that loud? 
24 A. No. 
25 Q. What about -- what about alcoholic beverages? 
487 
 1 A. Yeah, there was a keg there. 
2 Q. Okay. Did you drink? 
3 A. Yes, I did. 
4 Q. Okay. What about drugs? 
5 A. Yeah, I did -- I did a little bit of cocaine. 
6 Q. How much? 
7 A. I think one or two lines at the most. 
8 Q. And did you that at Swilling's party. 
9 A. That's correct. 
10 THE COURT: Mr. Crane, just a minute. Are you going 
11 to put something on that that's already admitted into 
12 evidence? 
13 MR. CRANE: No. 
14 THE COURT: Well, I suggest that perhaps you want to 
15 show it to defense counsel. 
16 MR. CRANE: No, I am -- I'm not going to show 
17 anything on that until -- well, first until I see if we can 
18 operate it. And then I'm going to wait until it's in 
19 evidence, yeah. 
20 THE COURT: All right. I just want to make sure you 
21 didn't put anything on that screen. 
22 MR. CRANE: Show counsel 7, 7A and 7B. 
23 MR. ROGERS: No objection. 
24 Q. I'm going to show you what's marked here for 
25 identification as State's Exhibit 7, 7A and 7B. Do you 
488 
 1 recognize what's in those photographs? 
2 A. Yeah. It's a picture of myself. 
3 Q. Okay. The top one's a picture of yourself and 
4 several other people? 
5 A. That's correct, yes. 
6 Q. And the bottom one's a picture of you and several 
7 other -- and a couple other guys. 
8 A. Yeah. Two guys -- 
9 Q. Don't say too much about it until we get it into 
10 evidence. If we get it into evidence. Are those fair and 
11 accurate pictures of you and other people at the Swilling 
12 party that was going on October 31st, 2001? 
13 A. That's correct, yeah. 
14 MR. CRANE: Judge, I'd offer 7, 7A and 7B. 
15 MR. ROGERS: No objection, Your Honor. 
16 THE COURT: State's Exhibits 7A, 7B, and 7 are 
17 admitted. 
18 - - - 
19 State's Exhibits 7, 7A and 7B, admitted into 
20 evidence. 
21 - - - 
22 MR. CRANE: Okay. Judge, we -- the only way you can 
23 see this well is if we turn off the second -- the center 
24 recessed lights, because there's a shadow on there. It 
25 doesn't make it so dark that you can't operate. Would that 
489 
 1 be all right if we at least try that? 
2 THE COURT: You may try it to display the 
3 photograph, yes. 
4 MR. CRANE: Okay. 
5 (Lights turned off.) 
6 Q. Mr. Erickson, can you see that from your location? 
7 A. Yes, I can. 
8 Q. Okay. First of all, I want to direct your attention 
9 to I believe this is 7B in the board there. Who's this 
10 individual over here on my left? 
11 A. That's me. 
12 Q. Okay. And you're sure -- is that the one you were 
13 describing earlier as the one you put on at Cole's? 
14 A. That's correct, yes. 
15 Q. Okay. And who are these other two guys? 
16 A. That's David Igleheart and -- in the middle is David 
17 Igleheart, and then to the right is Scott Turner. 
18 Q. Okay. And those were just other buddies of yours? 
19 A. Yeah. That's correct. 
20 Q. Okay. I'm going to show you now -- 
21 MR. CRANE: Look on that thing. Does that say "7" 
22 on there? 
23 MR. ROGERS: 7A. 
24 Q. Okay. I'm going to show you what's marked as 7A. I 
25 don't know how well this is going to show up. Can you see 
490 
 1 that, Mr. Erickson? 
2 A. Yes, I can. 
3 Q. Okay. 
4 MR. CRANE: Do you got that laser? 
5 Q. Here. One of these laser pointers. 
6 A. Yeah. 
7 Q. Can you -- 
8 A. Do you want me to stand up? 
9 MR. CRANE: Judge, can -- would the Court have any 
10 objection to Mr. Erickson's hands being released from the 
11 cuffs? 
12 THE COURT: That depends on whether or not the 
13 sheriff would have any objection. Perhaps one of his -- 
14 could one be released? But I'm not saying that you have to. 
15 I'm asking if it would be agreeable. 
16 SHERIFF'S DEPUTY: (Nodding head up and down.) 
17 (Deputy uncuffing one of the witnesses's hands.) 
18 MR. CRANE: For the record, the sheriff has 
19 indicated -- sheriff's deputy has indicated that it's okay to 
20 remove the black box. His hands are going to remain cuffed. 
21 THE COURT: All right. 
22 MR. CRANE: Okay. Now, I was going to give him this 
23 laser pointer, so that he doesn't have to come down and 
24 point. May I have the Court's permission to do that? 
25 THE COURT: To have him use the laser -- 
491 
 1 MR. CRANE: Yes. 
2 THE COURT: -- pointer? That's fine, as long as he 
3 doesn't point it at someone's eyes. 
4 MR. CRANE: Okay. 
5 Q. See that button on there? 
6 A. Yeah. 
7 Q. Okay. 
8 A. That's me right there. 
9 Q. Okay. That's you in the photograph? 
10 A. That's correct. 
11 Q. Okay. And there's some other partiers. Who -- do 
12 you remember -- this guy that's got his back to us here. 
13 A. I believe that was -- that was Jon Cole. That was 
14 the man's -- the man who -- he had the house where we got the 
15 clothes from. 
16 Q. What about up here? 
17 A. That would be Dallas Mallory. 
18 Q. That's not a real cop? 
19 A. No, it's not a real cop. 
20 Q. And that was Dallas Mallory at the party; correct? 
21 A. Yes, that's correct. 
22 Q. Okay. Do you recognize any of these other people? 
23 A. That's -- that's Abbey Atkins. That's Evan Perry. 
24 I can't remember her name. 
25 Q. Okay. Somebody -- was that -- another kid at the 
492 
 1 party. 
2 A. Yeah. 
3 Q. Okay. 
4 A. That's correct. 
5 Q. All right. Go ahead and -- go ahead and have a 
6 seat. 
7 Did you see Ryan Ferguson inside or around the 
8 Swilling party while -- well, let me ask it this way. Before 
9 it broke up, did you see Ryan Ferguson anywhere at the 
10 Swilling party that night? 
11 A. No, I did not. 
12 Q. Okay. Now let me ask you this. Can you say whether 
13 or not he was there somewhere in the crowd, or not? 
14 A. No, I cannot. 
15 Q. Okay. 
16 THE COURT: Can we turn the lights back on, 
17 Mr. Crane, or are you going to be using that setup? 
18 MR. CRANE: Yeah, we can get them started. Probably 
19 stay -- it takes a long time for them to get back up. We can 
20 start -- 
21 THE COURT: That is true. These are not normal 
22 lights. They take a while to boot up. 
23 Q. What broke the party up? 
24 A. The police arrived. 
25 Q. Okay. And what -- tell us about what you remember 
493 
 1 when that happened. 
2 A. I remember I was kind of in the back of the party, 
3 and it was just -- the word got out that the police had shown 
4 up, and everyone just started -- just -- just leaving the 
5 party. 
6 Q. Okay. And what did you do? 
7 A. Well, the guys that I came with, I was coming up, 
8 and then I came out the front door, and I saw that they were 
9 getting in the car real quick and already -- they were 
10 already taking off. And so I just -- I just wanted to get 
11 away from the house, just because I didn't want to be there 
12 when the police came. And so I just -- I just went -- I just 
13 started walking down the road. Walking down -- walking down 
14 Highridge, away from Forum. 
15 Q. Okay. Whatever the street is in front of the 
16 Swillings house? 
17 A. Yes. 
18 Q. Okay. And what happened? You start to walk out, 
19 you're walking along the street, and what happened? 
20 A. I'm walking down the street, and the cops are behind 
21 me, and I'm just -- I'm walking down the street, and I don't 
22 know if I was going to ask someone for a ride or just -- I 
23 was thinking I might just walk to my house, because it really 
24 wasn't that far. 
25 Q. Wait. You said the cops are behind you. What do 
494 
 1 you mean? 
2 A. Well, my back is to the police, because -- and 
3 Swilling's house would be to the left of me. All right? 
4 Q. Okay. 
5 A. And then the cops, they came up on the Forum side of 
6 Highridge, and they kind of blocked off the street right 
7 there. 
8 Q. Okay. They're behind -- they're not chasing behind 
9 you. 
10 A. No. No. No. 
11 Q. Okay. 
12 A. They're stopped on the street. 
13 Q. All right. And then what happened? 
14 A. And then -- and I'm walking, and then all of a 
15 sudden I hear someone say, "Hey, Chuck. Hey, Chuck." And I 
16 look over, and Ryan is at the corner of Highridge and another 
17 street. He's kind of -- he's kind of turned and stopped, 
18 like, you know, where he's still making a turn a little bit. 
19 Q. Okay. 
20 A. And says, "Hey, Chuck." And I go over and go, 
21 "What's up, man?" And he said, "Man, get in here." You know 
22 what I'm saying? So I get into his car. 
23 Q. Was there anybody else in his car when you got in 
24 there? 
25 A. No, there wasn't. 
495 
 1 Q. What type of a vehicle was Ryan Ferguson driving? 
2 A. He drove a Mercedes, I think E320. It was blue. 
3 Q. Okay. Had you -- had you seen it before? 
4 A. Yes. 
5 Q. Was that what he was driving that night? 
6 A. That's correct, yes. 
7 Q. Do you know how he got that vehicle? 
8 A. I believe his dad gave it to him. 
9 Q. Okay. And he -- I mean, he had been driving that 
10 for -- well, he was 17 at this time, but he had -- do you 
11 know how long he had it or anything like that? 
12 A. I believe he got it when he was 16, but I'm not -- 
13 I'm not sure. 
14 Q. Okay. So you got in the Mercedes. And it's just 
15 you and he in the car at that point. 
16 A. Yes. 
17 Q. Okay. What happened then? 
18 A. We were -- we were trying to figure out something to 
19 do. And we were still on Highridge. And he mentioned 
20 something about his sister could get us into a club. So I 
21 said -- he asked me if I wanted to go, and I said, "Yeah, 
22 yeah, that's fine. Let's go to the club." 
23 Q. Now when you say "club," what do you mean? 
24 A. I mean By George's club. 
25 Q. Okay. A club to you is -- do you use the term 
496 
 1 "club" and "bar" as the same thing? 
2 A. Yeah. I mean, I had never been to -- 
3 Q. I mean, you're not talking about Kiwanis -- 
4 A. No. 
5 Q. -- Rotary. 
6 A. No. 
7 Q. Okay. I'm sorry. 
8 A. It's a, you know, drinking, dancing, just partying 
9 club. 
10 Q. Okay. All right. By the way, were you carrying a 
11 cell phone that night? 
12 A. No, I wasn't. 
13 Q. Okay. So this issue, this idea of going to the 
14 club -- George's specifically? 
15 A. Yes. That's correct. 
16 Q. -- that was discussed. And then what happened? 
17 A. It was also discussed that it was going to be a 
18 little while until we could meet up with his sister to get 
19 into the club. And I was -- these pants that I was wearing 
20 were kind of tight and they were starting to get 
21 uncomfortable, and my shoes were starting to get 
22 uncomfortable. And since we had some time to kill, I just -- 
23 I suggested -- I asked him if we could go back to my house 
24 real quick and I could change. I also wanted to check in 
25 with my parents, to see if my parents were asleep, because I 
497 
 1 knew they wouldn't want me going to a club on a school night 
2 at 11:00. 
3 Q. By the way, you testified to what you were wearing, 
4 at least at this juncture of the night. When you got into 
5 the car with Mr. Ferguson, do you remember what he was 
6 wearing? 
7 A. Not specifically. I think he may have been wearing 
8 a gray shirt and he had -- he had a puffy Ralph Lauren coat 
9 on. And I think he had jeans on, but I can't remember. 
10 Q. Okay. You don't remember the type of pants? What 
11 about shoes? 
12 A. I can't remember. 
13 Q. Let me ask, was it -- to your recollection, was it a 
14 costume of any kind? 
15 A. No. He was just wearing street clothes. 
16 Q. Regular -- just regular clothes. 
17 A. Yeah, that's correct. 
18 Q. Where did you guys go from there? 
19 A. From my house? 
20 Q. Well -- 
21 A. Or from Swilling's? 
22 Q. Yeah. 
23 A. We went to my house. And he -- 
24 Q. Where did he let you off? 
25 A. He let me off in front of my house. 
498 
 1 Q. And what did you do? 
2 A. And I went in through the front door, and I saw that 
3 my parents were asleep, and so I just went downstairs into my 
4 room, and I changed into -- I changed clothes. I changed 
5 into a pair of jeans and a gray Tommy Hilfiger shirt and a 
6 big blue puffy reversible Nautica coat. 
7 Q. Do you remember what kind of shoes you put on? 
8 A. No. I just remember that they were more comfortable 
9 than the ones I was wearing. 
10 Q. Okay. The ones you borrowed? 
11 A. Yeah. 
12 Q. Okay. And backing up on the cell phone question, 
13 before you got to your house, from Swilling's, with the 
14 defendant, was there any cell phone conversation? 
15 A. I believe I called Scott Turner and asked -- 
16 Q. On whose phone? 
17 A. On Ryan's phone. 
18 Q. Okay. What about Ryan? Was he talking on the cell 
19 phone? 
20 A. Yeah. He talked to his sister. 
21 Q. Okay. By the way, what's his sister's name? 
22 A. His sister's name is Kelly Ferguson. 
23 Q. Did you -- do you or did you know her? 
24 A. I'd -- I'd seen her. I met her just when I was over 
25 at her house. I didn't really know her, though, you know. 
499 
 1 Q. Okay. She's older than Mr. Ferguson and older than 
2 you. 
3 A. Yeah, that's correct. 
4 Q. Okay. Now, when you -- you went in to change 
5 clothes, what about your folks? 
6 A. They were asleep when I went in. 
7 Q. Okay. And your sister? 
8 A. She was asleep also. 
9 Q. Okay. You didn't see them? 
10 A. I didn't see any of them, no. 
11 Q. And you went downstairs. And how did you then leave 
12 your residence? 
13 A. I left through the back. 
14 Q. Okay. How come? 
15 A. I snuck out through the back, so my parents -- the 
16 front door, it's louder. And I've got the basement to 
17 myself. 
18 Q. Okay. 
19 A. So no one would have known if I would have went out 
20 the back. 
21 MR. CRANE: Judge, I'm going to show the witness 
22 8 -- State's Exhibit 8 for identification. 8A through 8C. 
23 Q. Ask if you recognize what's depicted in that 
24 photo -- these three photographs. 
25 A. The top one is my house. The middle one is Grant 
500 
 1 Lane, where Ryan Ferguson parked, where he -- 
2 Q. All right. Just -- you recognize that photograph as 
3 Grant Lane, back of your place? 
4 A. Yeah. And then that's the back of my house. 
5 Q. Okay. When I show you something like this, don't 
6 start talking too much about it until we got it in. Okay? 
7 A. All right. Sorry. 
8 Q. And we might not get something in, so, you see, 
9 you're not suppose to do that. You with me? 
10 A. Yeah. 
11 Q. Okay. 
12 MR. CRANE: Judge, there's no objection, it's my 
13 understanding -- 
14 MR. ROGERS: That's correct. 
15 MR. CRANE: I'm offering 8A through 8C. 
16 THE COURT: 8A through 8C are admitted without 
17 objection. 
18 - - - 
19 State's Exhibits 8, 8A through 8C, admitted into 
20 evidence. 
21 - - - 
22 Q. So the top photograph now -- now you can talk about 
23 it. What's this top photograph of? 
24 A. That's the front of my house. 
25 Q. Front of your house. 
501 
 1 A. Yeah. That's correct. That's where Ryan would have 
2 dropped me off at, when I first went in. 
3 Q. Okay. And then how did you get out? 
4 A. I went out the back of my house. 
5 Q. Okay. 
6 A. And I went -- 
7 Q. If we look at 8B here, could we see your house 
8 somewhere on there or -- 
9 A. Yeah. It's about the -- it's about the third one 
10 down. You can see the roof. 
11 Q. Okay. 
12 A. And I came back here, behind these houses. After I 
13 went out the back like that, I came out here. I met Ryan at 
14 Grant, right there. 
15 Q. How did he know where to meet you? 
16 A. He picked me up there before, when I snuck out. 
17 Q. So this wasn't the first time you'd snuck out. 
18 A. No, it wasn't. 
19 Q. Okay. So that was the spot back there. 
20 A. That was the spot, yes. 
21 Q. Okay. And you got out -- if we look at 8C, you got 
22 out the back door. And your folks were less likely, I guess, 
23 to know you were slipping out? 
24 A. Yeah, that's correct. 
25 Q. Okay. When you got back to the car, what was going 
502 
 1 on? 
2 A. Ryan was on the phone. And he told me he was on the 
3 phone with Holly Admire. 
4 Q. With whom? 
5 A. With Holly. A girl named Holly Admire. 
6 Q. Okay. And now you're talking about on the cell 
7 phone? 
8 A. That's correct, yes. 
9 Q. Okay. Do you remember what the defendant told you 
10 about that -- what he was talking to her about or anything? 
11 A. He said something regarding -- he -- I know he 
12 wanted to date her and he wanted to get together with her. 
13 And we'd been at a friend's house a couple weekends before 
14 that, and he'd seen -- he'd seen Holly Admire's boyfriend, 
15 who's a brother of a friend of mine, his name is Dan Dunn, go 
16 into room with another girl. And he was going to tell Holly 
17 that -- that -- about -- that Dan was messing around on her, 
18 because he wanted to get together with her. He thought that 
19 that might break it off. 
20 Q. Okay. Was that something he told you, or was that 
21 something you picked up on the phone call with Holly that 
22 night or maybe multiple phone calls that night or both? 
23 A. That was something he told me. 
24 Q. Okay. So the guy that Holly Admire was dating, that 
25 was allegedly cheating on her, was -- what was his name? 
503 
 1 A. Dan Dunn. Daniel Dunn. 
2 Q. Okay. All right. Now -- and you don't know whether 
3 he was cheating on her or not. I mean -- 
4 A. I don't know. 
5 Q. -- innocent until proven guilty; right? 
6 A. That's correct. 
7 Q. Okay. But in any event, that was the topic of the 
8 phone call with Holly Admire and the defendant. 
9 A. Yes. 
10 Q. At some juncture during the night? 
11 A. Yes. 
12 Q. When you got back out to the vehicle, where did you 
13 guys go then? 
14 A. We went to By George's. 
15 Q. Okay. And what happened when you arrived at that 
16 location? 
17 A. Well, I remember we had to park up the road. We had 
18 to park up the road a little bit, because there -- the 
19 parking lot was packed. And it was Halloween. They were 
20 having a Halloween party. And there was so many people that 
21 we had to park up the road a couple blocks. I can't remember 
22 the name. I think -- I can't remember the -- it was First 
23 Street, the same road that the club was off of, but I 
24 can't -- it was -- it was almost two intersections down after 
25 the club. 
504 
 1 Q. Okay. 
2 MR. ROGERS: Your Honor, we have no objection to 
3 State's Exhibit 9. 
4 THE COURT: That is 9? 
5 MR. CRANE: Your Honor, I'm going to -- I'm going to 
6 show you what's marked for identification -- or not you. 
7 Q. Mr. Erickson, I'm going to show you what's marked 
8 for identification State's Exhibit 9. Do you recognize this 
9 aerial photograph? 
10 A. Yes, I do. 
11 Q. Okay. And you're from Columbia. This depicts, from 
12 the air, a portion of downtown Columbia; is that right? 
13 A. That's correct. 
14 Q. Okay. 
15 MR. CRANE: And 9's in? Is that -- otherwise -- 
16 THE COURT: You haven't offered it yet. 
17 MR. CRANE: Well, I'd offer 9. 
18 MR. ROGERS: No objection. 
19 THE COURT: 9 is admitted. 
20 - - - 
21 State's Exhibit 9 admitted into evidence. 
22 - - - 
23 MR. CRANE: Okay. Can you all kind of see that? Is 
24 there a glare? 
25 JUROR: A little bit, but not bad. Better. 
505 
 1 Q. Okay. For the record here, on State's Exhibit 9 -- 
2 and Mr. Erickson, can you see this from where you're at? 
3 A. Yeah. 
4 Q. Okay. The numeral 1 is over what? 
5 A. By George's. 
6 Q. Okay. We got this legend up here. Now, you were in 
7 the middle of testifying to where you recall Mr. Ferguson 
8 parked prior to the time you went into the bar. 
9 A. That's correct. 
10 Q. Can you show the jurors where that location was. 
11 A. Yeah. It was right about here (indicating). 
12 Q. Okay. So George's -- and you just pointed to this 
13 location (indicating). 
14 A. Yeah. That's correct. 
15 Q. Okay. All right. So it's actually not on the same 
16 block, but a block over, closer to what street? 
17 A. Ash Street. 
18 Q. Okay. All right. Now, from there, where did you 
19 and Mr. Ferguson go? 
20 A. We went to the club. 
21 Q. And before you got in, what happened? 
22 A. We had to -- we had to meet up with his sister, 
23 Kelly, and a friend of his sister's, because we weren't 21, 
24 and you had to be 21 to get into the club that night. 
25 Q. Okay. And, I mean, that was the idea that 
506 
 1 Mr. Ferguson brought up -- had brought up earlier? 
2 A. Yeah. She said that she could get us into the club. 
3 Q. Okay. So what happened when you got to the parking 
4 lot? Tell us. 
5 A. We got in the parking lot. And we met up with 
6 Ferguson's sister and his friend -- and her friend. I'm 
7 sorry. And we got to the front, where there was a bouncer 
8 who was admitting people into the building, and -- 
9 Q. What do you remember about the friend of 
10 Mr. Ferguson's sister? 
11 A. She was of Asian descent. 
12 Q. Did you ever know her name? Did you remember her 
13 name? 
14 A. No. 
15 Q. Okay. I want to show you what's marked for 
16 identification as State's Exhibit 4. Ask if you recognize 
17 that lady? 
18 A. Yes. That's -- that's -- that was Kelly's friend 
19 that was there with us that night. 
20 Q. Okay. 
21 MR. CRANE: Judge, I'd offer State's Exhibit 4. 
22 MR. ROGERS: No objection. 
23 THE COURT: State's Exhibit 4 is admitted. 
24 - - - 
25 State's Exhibit 4 admitted into evidence. 
507 
 1 - - - 
2 Q. And let me show you that little thing there. Do you 
3 rec -- is this the same photo? 
4 A. Yes. I believe so. Yes, it is. 
5 Q. Okay. 
6 MR. CRANE: Judge, I'd offer State's Exhibit 4A, 
7 which is a student -- 
8 MR. ROGERS: No objection, Your Honor. 
9 THE COURT: 4A is admitted. 
10 - - - 
11 State's Exhibit 4A admitted into evidence. 
12 - - - 
13 Q. Okay. And you didn't know what her name was. 
14 A. No. 
15 Q. But Christine Lo, you're not going to argue with 
16 that? 
17 A. No. 
18 Q. Okay. After you met Kelly Ferguson and this female 
19 out front, what did you do? 
20 A. After that, there was a discussion between Kelly 
21 Ferguson and the bouncer. And it went something to the 
22 effect of: She -- she said that we were -- that I was her 
23 boyfriend and that Ryan was Christine's boyfriend. And 
24 basically she just asked if we could get into the club. It 
25 was obvious we weren't 21. At least I thought. We didn't 
508 
 1 have IDs. Most people had to show IDs. And he let us into 
2 the club, because we were with these two girls. 
3 Q. They let you in? 
4 A. Yes. 
5 Q. You didn't really have any trouble getting in. 
6 A. No, we didn't. 
7 Q. Okay. The cover charge, was there one? 
8 A. Yeah. 
9 Q. And do you remember how much it was? 
10 A. I don't remember. It was somewhere in the 
11 neighborhood of $10 or something like that. 
12 Q. Okay. If you got in with the cover charge, was 
13 there anything like a stamp or anything? 
14 A. I know that there was stamps. I think there were 
15 bracelets also. I can't be sure about the bracelets, but I 
16 know there were stamps. 
17 Q. Okay. Can you describe for us the size of the 
18 crowd, what was going on in there that night? 
19 A. It was pretty packed. There were a lot of people 
20 there. There was loud music. A lot of people dancing. A 
21 lot of people dressed up -- 
22 Q. Okay. 
23 A. -- for Halloween. 
24 Q. All right. Had you been in that bar before? 
25 A. Yeah. 
509 
 1 Q. Tell us about that. 
2 A. I went -- it was a teen night, though. They weren't 
3 serving alcohol, I don't think. There was an age 
4 requirement. And it was just -- it was just a bunch of kids 
5 dancing. 
6 Q. It was a kid thing? 
7 A. Yeah. 
8 Q. When -- when was this? 
9 A. I believe it was my freshman year. 
10 Q. Okay. What grade's that? 
11 A. That was 9th grade. 
12 Q. 9th grade? 
13 A. Yeah. 
14 Q. And by now you're a junior? 
15 A. Yes. 
16 Q. The night we're talking? 
17 A. Yeah. 
18 Q. Okay. Who did you go with when it was a teeny 
19 bopper night? 
20 A. My girlfriend wanted me to go, so I went. 
21 Q. Okay. 
22 MR. ROGERS: I'm sorry. I didn't hear that answer. 
23 THE COURT: Would you speak up, please. 
24 THE WITNESS: My girlfriend wanted me to go, so I 
25 went with her. 
510 
 1 Q. Back in 9th grade. 
2 A. Yeah. I met her there. 
3 Q. Okay. But now this night it was wide open, regular 
4 old bar. 
5 A. Yeah. That's correct. 
6 Q. Grown-up deal. 
7 A. Yes. 
8 Q. Okay. After you got in there, you and Ryan got in, 
9 what did you see of Kelly and her friend? 
10 A. Not much at all. We kind of just -- we kind of 
11 separated. I think that -- she was older than us, so it 
12 would have been kind of weird, we were hanging out with 
13 someone four years older than us. And she -- I think she had 
14 her own friends there, and she was dancing and stuff. And me 
15 and Ryan kind of just went off on our own. 
16 Q. Okay. What did you and Ryan do then while you were 
17 inside? 
18 A. For the most part we just sat around. And Ryan 
19 would go up to the bar and buy drinks. Sat around. I saw a 
20 couple of people I knew. For the most part, though, I didn't 
21 -- I didn't really know anyone. We just -- we just sat and 
22 drank and watched people dance. 
23 Q. Okay. Who paid for the drinks? 
24 A. Ryan Ferguson did. 
25 Q. And what about money -- what about your money? 
511 
 1 A. I remember -- I didn't know there was going to be -- 
2 the cover charge was kind of expensive. I didn't have that 
3 much cash on me. And so I -- I remember that I ran out of 
4 money with the cover charge, and then Ryan got the rest of 
5 the cover charge, and then Ryan was going to pay for the 
6 drinks and I was going to pay him back. 
7 Q. Do you -- were you aware -- do you recall another 
8 source of money that Ryan either indicated or you saw occur? 
9 A. Yeah. He told me he was getting money from his 
10 sister. 
11 Q. He what? 
12 A. He told me he was getting money from his sister. 
13 Q. Okay. What -- was there -- at any time did you see 
14 actually money change hands between the two of them? 
15 A. No. I saw him approach his sister. And he would -- 
16 he would leave, and he told me that he was going to go and 
17 get money from his sister, but -- 
18 Q. Okay. 
19 A. -- but I would stay where I was at, just because it 
20 would be easier to find each other afterward. 
21 Q. What type of drinks were you -- what did you want? 
22 What were you drinking? 
23 A. I believe he just -- he bought Amaretto Sours and -- 
24 Q. Amaretto Sours? 
25 A. Yeah. 
512 
 1 Q. Okay. 
2 A. And at some point he might have gotten a Rum and 
3 Coke for himself. But for the most part I just drank 
4 Amaretto Sours. 
5 Q. How many of those do you think you consumed? 
6 A. Two or three. 
7 Q. Did you keep track of how many drinks Ryan had? 
8 A. No. 
9 Q. Okay. 
10 A. He was -- he was paying, so I'm pretty sure he drank 
11 more than I did, but I'm not -- I don't know. 
12 Q. So you each might have had three or four cocktail 
13 type drinks. 
14 A. Yeah. At the most. 
15 Q. Okay. Not -- you weren't drinking beer? 
16 A. No. 
17 Q. That was -- that was back at Swilling's party? 
18 A. That's correct. 
19 Q. Okay. During the time you and Ryan Ferguson were in 
20 George's, how often or how long were you two separated from 
21 one another? 
22 A. Not more than a few minutes. One of us would go to 
23 the bathroom. He would get money from his sister. Maybe one 
24 of us would step outside and smoke a cigarette. 
25 Q. Okay. 
513 
 1 A. No more than ten minutes. 
2 Q. You generally kind of hung around each other? 
3 A. Yeah. That's correct. 
4 Q. Okay. Did you ever go away from the bar, outside 
5 and away, during the time period in George's we're talking 
6 about right now? 
7 A. No. 
8 Q. Okay. 
9 A. Other than step outside and smoke a cigarette, no. 
10 Q. Okay. Yeah. Out on the parking lot, but you came 
11 right back in. 
12 A. Yeah, that's correct. 
13 Q. Up until this point, did you ever go out, like, to 
14 the car and come back? 
15 A. No. 
16 Q. Or down the street and come back? 
17 A. No. 
18 Q. Okay. And to your knowledge, did Ryan go outside 
19 and come back, to your knowledge? 
20 A. No. 
21 Q. You don't know whether he did or not? 
22 A. I don't know whether he did or not. 
23 Q. But if he did, that would have been, as you've 
24 already testified, a brief period of separation? 
25 A. That's correct. 
514 
 1 Q. Okay. After you'd been there a while, drinking, 
2 what did you want to do? 
3 A. I wanted to go home. I wanted to go home. The 
4 music was really loud, and I was a little intoxicated, and I 
5 was just -- I wasn't really having a good time, you know. I 
6 was 17. I never really been in a club. And everyone was 
7 older than me. I was -- and I can't dance either, so. 
8 Q. Okay. Did you -- I mean, you thought the club was 
9 going to be cool, but when you actually got there, it wasn't 
10 that great or -- 
11 A. Yeah, that's correct. Yeah. And I was tired too. 
12 Q. Well, eventually what happened? What did you guys 
13 do? 
14 A. We ran out of money. 
15 Q. Okay. And what happened next? 
16 A. After that, we left -- we left the bar, we left the 
17 club, because there was really no point in sticking around, 
18 you know, other than drink, I guess. And I wanted to go 
19 home. Ryan wanted to try to find something else to do. So 
20 he made a few phone calls in between the club and his car. 
21 And we were kind of hesitant -- 
22 Q. Well, let me stop you right there. Who was on the 
23 cell phone? 
24 A. Ryan Ferguson. 
25 Q. Okay. And after you got outside, you were in the 
515 
 1 parking lot or walking on the street or at the car? 
2 A. Yeah. That's correct. 
3 Q. And during that time period, what do you recall, if 
4 you do recall, about cell phone usage? Let me ask it in a 
5 general -- 
6 A. He called a few different people. 
7 Q. Okay. Were you paying attention to what he was 
8 talking about or who he was -- 
9 A. Just trying -- trying to find something to do, for 
10 the most part. I remember he said he was going to call that 
11 Brian Dunn. He was going to call Brian Dunn. 
12 Q. Okay. Now, you went -- the car was -- the Mercedes 
13 was back in the same spot we talked about. Back up there on 
14 the -- 
15 A. On First Street, yeah. 
16 Q. Yeah. On down from the bar. 
17 A. That's correct. 
18 Q. Towards Ash; correct? 
19 A. Yes. 
20 Q. When you got up to the vehicle, what -- tell us what 
21 happened. 
22 A. We got into the car. And he stayed on the phone for 
23 a little bit. And I told him I wanted to go home. He said, 
24 "Well, if we could get some more money, we could get some 
25 more drinks. We could buy some more drinks and stay out 
516 
 1 later." And he proposed that we rob someone in order to get 
2 more money to buy more drinks. 
3 Q. What were you thinking he was thinking about? What 
4 was your impression of that "get more money to buy more 
5 alcohol, more drinks"? What -- 
6 A. I don't know. I never robbed anyone before. And I 
7 thought it was just going to amount to a pickpocket, or 
8 something of that nature. I wasn't -- I really wasn't sure 
9 what -- what -- what he had in mind. 
10 Q. But what did you -- what was your reaction? 
11 A. At first I was weighing my options, and I was -- you 
12 know, I wanted to go home, but he was driving me, and I don't 
13 know, I -- it kind of seemed a little, you know, rebellious 
14 or whatever. 
15 Q. Rebellious. I mean -- what's that mean? 
16 A. I mean, there was -- there was -- there was a little 
17 bit of attraction to it, just because it was -- I was young 
18 and I was stupid and I was a little drunk, and it seemed like 
19 it would be something cool to do. 
20 Q. Okay. What happened next? 
21 A. After that, we got out of the car, and we decided 
22 that we should go downtown, in the -- more in the center of 
23 downtown, and get away from the club, when we were going to 
24 do this robbery. And we decided to leave our jackets and I 
25 left my wallet in the car and my keys. I believe he left his 
517 
 1 cell phone in the car. And if we start to walk -- 
2 Q. How come -- how come you left this stuff in the car? 
3 A. Well, the jacket that I had on, it was blue, and it 
4 was reversible, and one side was really shiny and it wasn't 
5 very inconspicuous, and I just didn't want to drop anything, 
6 if we got into a scuffle or something. And Ryan's coat was 
7 puffy too. So we took that off. 
8 Q. Okay. And so what did you put on? Do you remember? 
9 A. At that point -- I had clothes in the back of his 
10 car, because he had taken to me to school a lot, and 
11 sometimes I'd just leave stuff in his car. And I had a 
12 zip-up -- it was a zip-up Abercrombie sweatshirt. A hooded 
13 sweatshirt. 
14 Q. Okay. Did you put the hood up? 
15 A. At one point, but I didn't keep it up. 
16 Q. Okay. What -- so that's what you had on on your 
17 top. 
18 A. Yeah, that's correct. 
19 Q. Okay. Do you remember what he had on? 
20 A. No. I'm not sure. 
21 Q. Okay. Do you think he took the coat? His coat? 
22 A. Yeah. He took his coat off. 
23 Q. All right. Back at the car, what else happened, 
24 before you left? 
25 A. Well, we start -- we start to walk. And he says, 
518 
 1 "Hold on a second. We need to take something with us." I 
2 said, "What do you mean, we need to take something with us?" 
3 He said, "We're young, we're not that big, and if something 
4 happens, one of us might get -- one of us might get messed 
5 up, and we need to take something with us." So he goes back 
6 to his trunk, he opens his trunk, he digs around for a little 
7 bit, not very long, it was maybe -- not more than a few 
8 seconds, and he finds this tire tool. He takes this tire 
9 tool out of the trunk and he hands it to me. 
10 Q. So now you've got it. 
11 A. I've got it. 
12 Q. And what did you do with it? 
13 A. I've got this tire tool, and I was looking at it, 
14 and I saw it had a connection piece, and there was a button 
15 to release the connection. And I took the connection piece 
16 off and put it back in the trunk and we closed the trunk and 
17 we left. 
18 Q. Okay. What happened after that? 
19 A. After that, I believe we -- we got to First Street 
20 and Ash. And we took a right down Ash. 
21 Q. Okay. Let me show you what's marked as State's 
22 Exhibit 9. Point to the location of the car again. 
23 A. His car is right here (indicating). 
24 Q. Okay. Up in this area right here (indicating)? 
25 A. Yeah. 
519 
 1 Q. Okay. And then show us where you went. 
2 A. Then we went down Ash, toward Providence. 
3 Q. Okay. You're indicating Ash. Down this way? 
4 A. Towards -- 
5 Q. Can you see where I'm pointing? 
6 A. Yeah. Towards -- towards Providence. 
7 Q. Okay. Now, Providence, right here, it runs north 
8 and south; correct? 
9 A. Yes. 
10 Q. Okay. What -- tell us about what you recall about 
11 your path after that. 
12 A. We took a right on Providence. We got to right 
13 here. There's a little alleyway. And that was where we saw 
14 Kent Heitholt. 
15 Q. Okay. Now point again to the alley. 
16 MR. CRANE: Can -- Judge, can we try to get him to 
17 come down? We can try it, and if it doesn't work out, he 
18 could return to the witness stand. 
19 THE COURT: You may. 
20 You can step down. 
21 MR. CRANE: Okay. Let's see if we can move it up a 
22 little closer. 
23 How's that on the glare? 
24 JUROR: Okay. 
25 Q. Okay. Now, why don't you -- see, you're blocking 
520 
 1 this guy. 
2 A. Sorry. Where do you want me? 
3 Q. Why don't you show us, first of all, where the car 
4 was, now that we got you down here. 
5 A. All right. The car was right here (indicating). 
6 Q. Okay. And then from the car, where did you and the 
7 defendant go? 
8 A. We walked, and we took a right on Ash Street. We 
9 went down here, until we got to Providence. 
10 Q. Okay. And then what did you do? 
11 A. Then at Providence we took a right. And we got to 
12 this alleyway. 
13 Q. Okay. Now at that -- 
14 A. Right here (indicating). 
15 Q. Okay. What did you see from that location you've 
16 just taken the jurors to? 
17 A. Saw Kent Heitholt. 
18 Q. And you didn't know who the guy was, though. 
19 A. No, I didn't know who he was at the time. 
20 Q. Where was -- now I don't -- are you able to show us 
21 where it was generally you saw him at that location? 
22 A. Yeah. He was at the Tribune building. He was in 
23 between the building and the parking lot, in the alleyway. 
24 Q. Okay. I mean, what was he doing? Was he 
25 stationary? 
521 
 1 A. No. He was -- he was walking to the car. 
2 Q. Coming out of the building -- 
3 A. That's correct. 
4 Q. -- headed onto the parking lot? 
5 A. Yes. 
6 Q. Okay. After -- well, what -- let me ask you this. 
7 When you saw Mr. Heitholt, what happened? What happened 
8 between the two of you or what happened at that point? 
9 A. Well, we went down the alley. And we were hiding 
10 behind this Dumpster enclosure, that's somewhere in here 
11 (indicating). We're hiding behind that Dumpster enclosure, 
12 and someone else comes out of the building, and they start 
13 talking. And so we hide behind the Dumpster enclosure until 
14 the person comes out. Then this person gets in their car and 
15 they leave. So after that person left, Ryan and I are behind 
16 the Dumpster enclosure. 
17 Q. Okay. And it's -- where's this Dumpster thing? 
18 A. It's -- if you -- 
19 Q. Well, you -- just describe it. Is it -- where is it 
20 in relation to the parking lot? 
21 A. It's -- it's -- 
22 Q. I mean, is it far away or is it close to the parking 
23 lot? 
24 A. No, it's close to the parking lot. 
25 Q. Okay. 
522 
 1 A. It's right across the alley from the Tribune 
2 building. 
3 Q. Now -- go ahead and sit down. 
4 A. All right. 
5 Q. After you got to the Dumpster spot, what did you 
6 say? There was initially, by the time you got up there, 
7 there was initially somebody else out there? 
8 A. Well, we got up there, and we were behind the 
9 Dumpster enclosure, and then someone else came outside. 
10 Q. Okay. Let me show you what's marked as State's 
11 Exhibit 12 for identification. Do you recognize this 
12 diagram? 
13 A. Yes, I do. 
14 Q. Okay. Is that a diagram of the Tribune building and 
15 the parking lot? 
16 A. Yes. 
17 Q. Okay. 
18 MR. CRANE: Judge, I'm going to offer -- I don't 
19 think there is an objection -- State's Exhibit 12. 
20 MR. ROGERS: No objection, Your Honor. 
21 THE COURT: State's Exhibit 12 is admitted. 
22 - - - 
23 State's Exhibit 12 admitted into evidence. 
24 - - - 
25 Q. Can you come back? 
523 
 1 A. Yeah. 
2 MR. CRANE: With the Court's leave. 
3 THE COURT: You may step down. 
4 Q. Mr. Erickson, on this diagram, which way is 
5 Providence? If we look at it in connection with this. 
6 A. If you're going down the alley this way, it's over 
7 here. 
8 Q. Okay. And so how did you and Mr. Ferguson approach 
9 the parking lot? 
10 A. We came down the alley, coming from Providence, 
11 coming that way. Then we hid behind the Dumpster enclosure. 
12 Q. Okay. After being at that location, what did you 
13 do? 
14 A. After we got to the Dumpster enclosure, we were 
15 sitting there, and we saw the victim go up to his car. He 
16 had papers on top of his car. Ryan was to my right. I still 
17 had the tire tool. Ryan said, "We need to get this over 
18 with. We need to get this over with. Just go do it." So I 
19 stand up. I come -- kind of creep around a little bit. 
20 There's a wall. It's about that high. I creep around the 
21 wall. And I come up to where I'm not in the victim's 
22 peripheral vision. I stand up and I go over the wall. 
23 Q. What's the victim doing? What's Mr. Heitholt doing? 
24 A. He's facing his car. 
25 Q. Standing up? 
524 
 1 A. Yes. 
2 Q. Okay. 
3 A. His doors are open and he's -- he's messing with 
4 stuff in his car. On the roof of his car. On the driver's 
5 side. 
6 Q. What did you do to him? 
7 A. I stepped over the wall, and I walked quickly, and I 
8 hit him with the tire tool. I crept up behind him. And as I 
9 crept up behind him, he started to turn. That is when I hit 
10 him. And I kept hitting him. 
11 Q. So he's standing at his car, and you came up -- you 
12 said you came up behind him? 
13 A. That's correct. 
14 Q. Okay. 
15 A. On his right side. 
16 Q. And what side of the vehicle were you -- his vehicle 
17 was Mr. Heitholt? 
18 A. He was on the driver's side. 
19 Q. And you came from around that way to get in behind 
20 him? 
21 A. (Nodding head up and down.) 
22 Q. And what happened before you hit him? 
23 A. He started to turn. And before he -- he started 
24 turn, look over his shoulder like that. And before he got 
25 around, I hit him, on the top of his head. 
525 
 1 Q. What happened when you hit him? 
2 A. I hit him. He turned around to face me. He put his 
3 hands up, like that. And I kept on hitting him. He was in 
4 between me and the car. And the open door. And I kept on 
5 hitting him. And I hit him until -- at one point he groaned. 
6 He groaned and he came to his knees. And I -- I hit him one 
7 more time. Then he came to the ground. Then I dropped the 
8 tire tool. I -- I just -- when he groaned, that's just -- I 
9 don't know. That's just something that I really remember. 
10 It was this -- I couldn't believe that a person made that 
11 sound because of something I did to them. 
12 Q. What about blood? 
13 A. There was -- there was blood everywhere. There was 
14 blood on the ground, blood on me, blood on the car. 
15 Q. And where was Ryan Ferguson during all this? I 
16 mean, were you -- could you see him at this point or -- 
17 A. He was behind me. 
18 Q. Okay. And he hadn't had the tire tool in his hand, 
19 at least up to this point. 
20 A. That's correct. 
21 MR. ROGERS: Your Honor, unless they have some more 
22 to do with exhibits, I'd request the witness resume the 
23 stand. 
24 MR. CRANE: Well, not just yet. 
25 THE COURT: What are we about to do? Is he going to 
526 
 1 point out something else? 
2 MR. CRANE: I need him to have his -- I would again 
3 request -- maybe we -- can we approach? 
4 Have a seat I guess. 
5 - - - 
6 Counsel approached the bench and the following 
7 proceedings were held: 
8 MR. CRANE: In order for him to show -- 
9 THE COURT: Their lunch is here too. 
10 MR. CRANE: Okay. All right. I guess we could talk 
11 about this later. We'll talk about it later. That's fine. 
12 THE COURT: Okay. 
13 MR. ROGERS: That's a good plan. 
14 - - - 
15 The following proceedings were held in open court: 
16 THE COURT: Ladies and gentlemen, I have been 
17 advised that your lunch has arrived, and so we will break for 
18 the noon hour. 
19 The Court again reminds you of what you were told at 
20 the first recess of the Court. Until you retire to consider 
21 your verdict, you must not discuss this case among yourselves 
22 or with others, or permit anyone to discuss it in your 
23 hearing. You should not form or express any opinion about 
24 the case until it is finally given to you to decide. Do not 
25 read, view, or listen to any newspaper, radio, or television 
527 
 1 report of the trial. 
2 Lunch is actually physically in the courthouse. 
3 Yes? 
4 DEPUTY COURT MARSHAL WERNER: It's in the room, 
5 Judge. 
6 THE COURT: In the room. Why don't we take a break 
7 for an hour. Come back at, say, 5 after 1. 
8 DEPUTY COURT MARSHAL WERNER: Yes, ma'am. 
9 THE COURT: And resume. 
10 Ladies and gentlemen of the jury, you may step 
11 outside. 
12 - - - 
13 The following proceedings were held out of the presence 
14 of the jury: 
15 THE COURT: You may step down, Mr. Erickson. 
16 May I assume that lunch would be provided for 
17 Mr. Erickson and also Mr. Ferguson? Yes? 
18 SHERIFF'S DEPUTY: Yes. 
19 THE COURT: Okay. We will come back then at 5 past 
20 1. 
21 Anything further, before we recess? 
22 MR. ROGERS: Kevin, we need to talk about why you 
23 want him off the stand. 
24 MR. CRANE: Huh? Well, I mean -- the -- at some 
25 point the -- I talked to the sheriff's department about it. 
528 
 1 At some point I'm going to ask again that his hands be 
2 undone, because -- 
3 THE COURT: His hands are undone. 
4 MR. CRANE: No. He's cuffed. But, you know, if 
5 he's going to show us, for instance, describe, either for the 
6 defense or the state, the length of the tire tool, he can't 
7 do it. So I -- you know, he can go up there for a little 
8 while longer with it like that, but at some point I'm going 
9 to ask that his hands be undone. 
10 I don't think you got a problem with that, do you? 
11 MR. ROGERS: I don't have a problem with his hands 
12 being undone, although I think he can show us the length of 
13 the tire tool from the witness stand as well as can standing 
14 down here. 
15 MR. CRANE: Well, there may be -- okay. That's 
16 fine. But I -- now wasn't saying I was going to have him 
17 stand up the whole time. 
18 MR. ROGERS: I just wanted him to resume the stand, 
19 is all. I got tired of watching him stand. 
20 THE COURT: Well, I certainly need to confer with 
21 law enforcement, because I leave it to them for the security 
22 of any prisoner that's in their custody. 
23 MR. CRANE: Yeah. We -- and we can even wait until 
24 later before we do that, and then cuff him back up. 
25 SHERIFF'S DEPUTY: Judge, it's up to Bill Hawes 
529 
 1 right now. Bill Hawes has -- technically has custody of him. 
2 MR. CRANE: Okay. 
3 SHERIFF'S DEPUTY: So if he -- 
4 MR. CRANE: He's saying it's my -- all right. 
5 MR. ROGERS: Bill works for Kevin. 
6 MR. CRANE: All right. I'll take it up with -- 
7 THE COURT: I mean, I assume it's possible -- I've 
8 had other inmates -- 
9 MR. CRANE: No. No. I can -- yeah. 
10 THE COURT: -- that had their one -- the cuff on one 
11 hand, and the other hand, for example, the writing hand, 
12 free. 
13 SHERIFF'S DEPUTY: Well, in this case, since the 
14 cuffs are already in front, I have to take them both off. 
15 He's still got leg irons on. 
16 THE COURT: But there's no belt. 
17 SHERIFF'S DEPUTY: I can put a waist chain back 
18 around. 
19 THE COURT: You might -- you might want to do that. 
20 You might want to put a waist chain around him so you can 
21 cuff one hand and not the other. 
22 SHERIFF'S DEPUTY: Yeah. Whatever you want. 
23 THE COURT: Okay. Why don't we plan to do that. 
24 We'll be in recess then. 
25 (Recess taken.) 
530 
 1 - - - 
2 The following proceedings were held out of the presence 
3 of the jury: 
4 (The defendant not present in the courtroom.) 
5 THE COURT: We need to swear some of the marshals 
6 that will be with our jury. And I'm wondering how long it 
7 will be before your client is here. 
8 MS. BENSON: That's what we were wondering. 
9 THE COURT: I think -- I saw him in the hall. And I 
10 -- maybe Jack will check on... 
11 MR. ROGERS: I think I can waive his presence for 
12 the swearing of the marshals. 
13 THE COURT: Do you mind? 
14 MR. ROGERS: I do not mind, Your Honor. 
15 THE COURT: I mean, I don't know that that's a 
16 critical part of the proceeding, that the marshals are sworn. 
17 MR. ROGERS: I don't think it is either, but if it 
18 is, I'll waive it, and then I'll make a record on it when he 
19 gets here. 
20 THE COURT: All right. 
21 Would you then -- it's fine. Come on in. 
22 (Court Marshal Jack Wonneman and Deputy Court 
23 Marshals Steve Lake, Jim Purdy, and Angie Lane sworn by Sheri 
24 Vanderhoof, Deputy Clerk, to take charge of the jury.) 
25 MR. ROGERS: Your Honor, is -- I mean, that's 
531 
 1 obviously the oath appropriate to swear in the marshals who 
2 will take charge of the deliberations, but in terms of having 
3 charge of the jury before that, are they being sworn to do 
4 that as well? 
5 THE COURT: Yes. 
6 MR. ROGERS: I don't think that was necessarily 
7 covered with that particular oath, and I don't -- 
8 THE COURT: Do you have an oath that you would 
9 propose? 
10 MR. ROGERS: I don't have one, but I would suggest 
11 that it be directed to allowing people to communicate with 
12 them or allowing them to read or view or watch -- 
13 THE COURT: To me, this covers everything. 
14 MR. ROGERS: Okay. 
15 THE COURT: When they're discharged -- I mean, 
16 they're not to have any conversation with anyone at any time. 
17 MR. ROGERS: All right. Well, that's -- that's okay 
18 with me. 
19 THE COURT: All right. 
20 MR. ROGERS: It is maybe over-inclusive, but that's 
21 all right. 
22 THE COURT: I'd rather it be over- than 
23 under-inclusive. 
24 MR. ROGERS: As long as you understand it and they 
25 understand it -- 
532 
 1 THE COURT: They certainly do understand it. 
2 And I trust that our jurors are all back. 
3 DEPUTY COURT MARSHAL WERNER: Yeah. 
4 THE COURT: Is Don Claxton here? Dan Claxton? 
5 MR. CLAXTON: Yes. 
6 THE COURT: I have a media request form from you. 
7 And I understand that CBS will provide an audio feed. 
8 MR. CLAXTON: Yes. They're doing that. 
9 THE COURT: I want to know if they don't. 
10 MR. ROGERS: CBS or ABC? 
11 THE COURT: It's CBS. 
12 MR. ROGERS: Okay. That's good. 
13 (Defendant present in the courtroom.) 
14 THE COURT: All right. You may return the jury to 
15 the courtroom. 
16 MR. ROGERS: Your Honor, for the record, 
17 Mr. Ferguson is now here. I explained to him that the Court 
18 swore the marshals in his absence. 
19 And Mr. Ferguson, is that okay with you? You don't 
20 need to be here while she swore the marshals. 
21 THE DEFENDANT: That's all right. 
22 MR. ROGERS: Okay. 
23 THE COURT: You may return the jury to the 
24 courtroom. 
25 So you understand, we will go 'til around 6:30 this 
533 
 1 evening. We do take breaks during the afternoon. But we 
2 will go until approximately that time in the evening. Just 
3 so you'll know, if you have anything with your schedule. 
4 - - - 
5 The following proceedings were held in the presence of 
6 the jury: 
7 THE COURT: Mr. Erickson, you were sworn before the 
8 recess was taken for noontime. 
9 THE WITNESS: That's correct. 
10 THE COURT: You'll remember you're still under oath. 
11 THE WITNESS: Yes. 
12 THE COURT: Okay. 
13 The clerk may be excused. 
14 (Clerk excused.) 
15 - - - 
16 CHARLES TIMOTHY ERICKSON, 
17 resumed the stand and testified further: 
18 THE COURT: You may inquire. 
19 - - - 
20 RESUMED DIRECT EXAMINATION 
21 BY MR. CRANE: 
22 Q. I wanted to show you also another photograph before 
23 we go on with some other things. It's State's Exhibit 10 for 
24 identification, 10A through 10E. Mr. Erickson, does this 
25 fairly and accurately depict the area around By George's and 
534 
 1 down the street towards Ash Street, from By George's, in 
2 these series of photographs? 
3 A. Yes. Yes, it is. 
4 MR. CRANE: Judge, I'd offer State's Exhibit 10, 10A 
5 through 10E. 
6 MR. ROGERS: No objection, Your Honor. 
7 THE COURT: Exhibit 10 and 10A through E are 
8 admitted. 
9 - - - 
10 State's Exhibits 10, 10A through 10E, admitted into 
11 evidence. 
12 - - - 
13 Q. Okay. If we look at this, the top photograph is an 
14 aerial; correct? 
15 A. Yeah. 
16 Q. And can you -- can you find By George's on there? 
17 A. Yeah. By George's is right here. 
18 Q. Okay. Now, the remaining photographs are ground 
19 level; correct? 
20 A. Yes. 
21 Q. Okay. The first photograph over here on my -- to my 
22 left is 10B. And what's that showing? 
23 A. That's By George's. 
24 Q. Okay. That's obviously during the daytime, shot of 
25 the bar; right? 
535 
 1 Okay. 
2 THE COURT: I'm sorry. I didn't hear your answer. 
3 A. Yes. 
4 Q. Is that correct? 
5 A. Yeah, that's correct. 
6 Q. Now, in 10C and 10D, what's depicted? 
7 A. This is First Street, heading away from Broadway. 
8 Q. Okay. So in 10C here, can you show us where 
9 George's would be? 
10 A. George's would be to the left. And this is the 
11 drive into the parking lot. 
12 Q. Okay. So this is looking on down -- these two 
13 photographs are looking on down the street from By George's; 
14 is that accurate, sir? 
15 A. That's correct. 
16 Q. And where do you recall the defendant parked his 
17 vehicle? 
18 A. The defendant parked his vehicle down the street 
19 here, just in front of the corner of First and Ash. 
20 Q. Okay. As you've indicated on the larger one, on 
21 across that next street and down towards Ash. In this area. 
22 Correct? 
23 A. That's correct. 
24 Q. Where you pointed. Correct? 
25 A. That's correct. Right there. 
536 
 1 Q. Okay. Now 10E, at the bottom, what does that 
2 depict? 
3 A. This is Ash Street and -- 
4 Q. This? 
5 A. This street right here. 
6 Q. Okay. 
7 A. And then down here where this moving truck is or 
8 this truck right here, that's Providence. 
9 Q. Okay. Now, can you see the Tribune parking lot? 
10 A. Yeah. The Tribune parking lot is right here. 
11 Q. Okay. Let me get around here. 
12 A. Right there. 
13 Q. Okay. You're pointing right here? 
14 A. That's correct, yeah. 
15 Q. So that's the view down Ash -- 
16 A. Yes. 
17 Q. -- across Providence, to the parking lot. Okay? 
18 A. (Nodding head up and down.) 
19 Q. I wanted to ask you also, would you describe for us 
20 this -- we've referred to it as a tool, a tire tool. Would 
21 you describe for us what it looked like. 
22 A. It's probably about -- maybe a little more than a 
23 foot long. It was metal. And it had a waffle grip, that was 
24 kind of rough on it. And it had -- it went up like this, and 
25 then it went off a little bit like that. And then there was 
537 
 1 a place where you could -- you could connect -- connect 
2 pieces to it. 
3 Q. Okay. Now I'm going to show you what's marked for 
4 identification State's Exhibit 90. Okay? Show you that 
5 exhibit. Do you see it? 
6 A. Yes, I do. 
7 Q. Is that the tire tool? 
8 A. No, it's not. 
9 Q. That's not the one. 
10 A. No, it's not. 
11 Q. Okay. 
12 MR. CRANE: We're going to -- we're going to 
13 actually offer this through another witness, Judge. But that 
14 is State's Exhibit 90 there. 
15 Okay. Your Honor, at this point I'm going to ask 
16 that the defendant again be allowed to step down. And would 
17 ask that his handcuffs be removed, at least for this portion 
18 of the testimony. 
19 MR. ROGERS: That's the witness; not the defendant. 
20 MR. CRANE: The witness. I'm sorry. Mr. Erickson. 
21 MR. ROGERS: Mr. Erickson. 
22 THE COURT: Well, I'm looking -- I don't see the 
23 sheriff's deputy here. 
24 MR. CRANE: Ben White here, with the prosecutor's 
25 office, has been given the key to the cuffs, and he can do 
538 
 1 it. 
2 THE COURT: All right. 
3 MR. ROGERS: We have a deputy now. 
4 THE COURT: Ah. Here comes the deputy. 
5 Is it -- is it -- there's a proposal to remove the 
6 handcuffs for a brief period of time. Is that agreeable with 
7 you? 
8 SHERIFF'S DEPUTY: Yeah. 
9 THE COURT: All right. 
10 (Witness's handcuffs removed.) 
11 Q. Okay. Now you previously testified before our lunch 
12 break that -- well, let me ask you this. If we use this 
13 as -- this area right in here as the victim's vehicle. 
14 A. Yeah. 
15 Q. Okay. And you indicated that the victim was 
16 standing on which side of the vehicle when you attacked him? 
17 A. The driver's side. 
18 Q. Okay. May we use this as the driver's side of the 
19 vehicle? 
20 A. Yes. 
21 Q. Okay. Now, was the car door open or closed? 
22 A. It was open. 
23 Q. All right. And may we use this board as the car 
24 door? 
25 A. Yes. 
539 
 1 Q. Okay. Now, where was the victim standing? How was 
2 he standing when you approached him? 
3 A. He was standing at his car. Right in front of 
4 the -- in between the car and the car door a little bit. And 
5 he was facing the car. And he had his stuff on top of the 
6 car. Papers and whatnot. 
7 Q. Okay. So he was standing at the car. 
8 A. Yes. 
9 Q. And what did you do to him? 
10 A. I came around -- came around this side. Came around 
11 from behind, from his right side. And he turned, like that, 
12 and I hit him. 
13 Q. You hit him just like that? 
14 A. Well, I hit him harder than that. 
15 Q. How did you hit him? 
16 A. I hit him like that (indicating). And he turned -- 
17 after I hit him the first time, he put his hands up, like 
18 this, and he turned towards me, like that. And I kept 
19 hitting him. And I hit him until -- 
20 Q. What part of his body were you hitting? 
21 A. His head. 
22 Q. And how did you do it? 
23 A. Just -- just like this (indicating), only faster. 
24 And at some point he put his hands up. 
25 Q. And what did you keep doing after he put his hands 
540 
 1 up? 
2 A. I hit him. 
3 Q. And then what did he do? What did he do from the 
4 car? Did he stay at that location? Did he move? What do 
5 you remember? 
6 A. He staggered. He staggered. He leaned on the car. 
7 And then I hit him one time -- at one point I hit him and he 
8 groaned, and he came to his knees. And then he was on the 
9 ground, on his knees, and I hit him one more time, and then 
10 he went down. 
11 Q. All the way down? 
12 A. Yeah. 
13 Q. Okay. 
14 A. Yeah. 
15 Q. Now, after that -- after that point, when 
16 Mr. Heitholt was all the way down on the pavement, what did 
17 you do? 
18 A. I dropped the tire tool, and I remember -- because 
19 after I -- after I hit him the second to the last time and he 
20 moaned, I -- I don't know. I just -- I kind of realized what 
21 we were doing, you know. Just -- I mean, we were doing this 
22 for nothing really. There wasn't any point. And it just -- 
23 just -- that I could make that sound come from someone, it 
24 just -- it made me feel horrible about what I was doing. 
25 Q. Did you give him any warning? 
541 
 1 A. No. 
2 Q. Did you say anything to him before you hit him? 
3 A. No. 
4 Q. Did Ryan say anything to the victim before you hit 
5 him? 
6 A. No. 
7 Q. Do you know how many times you hit him? 
8 A. No. 
9 MR. ROGERS: Your Honor, if we're done -- 
10 Q. Let me -- 
11 MR. ROGERS: -- with the demonstration -- 
12 MR. CRANE: We're not. We're not quite done with 
13 that, but thank you. I assure you, I will not leave him 
14 standing for any inordinate period of time. 
15 MR. ROGERS: I'm an old guy and I get tired. 
16 Q. Okay. Now, I want to show you what's marked for 
17 identification as State's Exhibits 13, 13A through 13F. 
18 THE COURT: You want to take a look at that, Mr. -- 
19 (Mr. Crane showing the exhibit to Mr. Rogers.) 
20 MR. CRANE: Okay. 
21 Q. These are some still photographs taken from the 
22 crime scene video. And ask if you recognize what's depicted 
23 in these photographs. And let me ask you, if I may indulge 
24 the defense, a leading question. Do these appear to be fair 
25 and accurate depictions of the parking lot area, with some 
542 
 1 exceptions. For instance, that police car wouldn't have been 
2 there at the time -- 
3 A. Yeah. 
4 Q. -- on night of the homicide? 
5 A. That's correct, yeah. 
6 Q. Okay. 
7 MR. CRANE: Judge, I'm going to offer State's 
8 Exhibit 13, 13A through 13F. 
9 THE COURT: Does defendant have -- 
10 MR. ROGERS: No objection. 
11 THE COURT: 13 and 13A through F are admitted. 
12 - - - 
13 State's Exhibits 13, 13A through 13F, admitted into 
14 evidence. 
15 - - - 
16 Q. Okay. Now, sir, if you look there at 13A, you've 
17 mentioned your route earlier. You described -- if we look 
18 back here at State's Exhibit 9, can you show us again your 
19 route from the car. And you may have to keep from blocking 
20 the gentleman over here to your right. 
21 A. His car was parked right here. And then we took -- 
22 we took a right on Ash Street and went down Ash Street until 
23 we got to Providence. And then when we got to Providence, we 
24 took a right until we got to this alley. And that was where 
25 we saw the victim. Across the street from Providence. Or -- 
543 
 1 yeah. Well, across Providence from the Tribune building. 
2 And then we crossed Providence. Stayed -- went down 
3 Providence. And after we got to the other side of 
4 Providence, we stayed on that. Right there. And then we 
5 kept going down the alley. 
6 Q. Okay. Now let me go to the next -- let me go to 
7 this one now. Okay. So if you look up here at State's 
8 Exhibit 13A, can you show the jury in 13A where the alley is 
9 at Providence? 
10 A. That's the alley right there. 
11 Q. Okay. And what did you and the defendant walk up 
12 to? 
13 A. We walked up to this Dumpster enclosure. 
14 Q. All right. Well, now you're looking at 13B, which a 
15 bigger shot of it? 
16 A. Yeah. Over here. 
17 Q. Is it -- okay. You're pointing out of 13A. It's 
18 also in that photograph? 
19 A. That's correct, yes. 
20 Q. Now what did you do from that location? What did 
21 you do from your position up here behind the enclosure? 
22 A. From this location? 
23 Q. Yeah. 
24 A. I came to right here a little bit. And I climbed up 
25 this wall. I -- I just stepped over it. 
544 
 1 Q. And now take a look at 13B. Is that also depicted? 
2 A. Yeah. That's correct. 
3 Q. Okay. There's a little low wall here? 
4 A. That's correct. 
5 Q. Okay. 
6 A. Then I came over this wall. And I came so I was 
7 behind the victim and to his right. 
8 Q. Okay. And that's what you just talked about a 
9 minute ago; correct? 
10 A. Yes, that's correct. 
11 Q. Okay. 
12 A. And I came -- I came away from the Dumpster 
13 enclosure, up over here, across the parking lot, to the 
14 victim's car. 
15 Q. Okay. Now let me ask you, after you -- the events 
16 that you've described, where you started to hit Mr. Heitholt 
17 and he went down, what did you do next? 
18 A. I -- I dropped the tire tool, and I started to feel 
19 sick. And I didn't -- I don't know if it was the blood or -- 
20 and groaning, I don't know what it was, but -- 
21 Q. And what did you do then? 
22 A. And -- there's a -- there's a -- there's a little 
23 wall area behind where the car is, and there's -- behind the 
24 parking lot. And I sat back -- sat on the ground, kind of 
25 with my head in between my knees. 
545 
 1 Q. Now when you did that, what side of the victim's 
2 vehicle were you on? 
3 A. I was on the driver's side. 
4 Q. Okay. So you remained on that side of the vehicle. 
5 A. That's correct. Yeah. 
6 Q. Now, this diagram here, I'm going to show you 
7 State's Exhibit 12. There will be some other photographs 
8 we'll show in a minute, but if you'll look at that, where's 
9 the Dumpster enclosure that you pointed out here on 13? 
10 A. Here's the Dumpster enclosure. 
11 Q. Okay. All right. And then you went to the victim's 
12 car. 
13 A. Yeah. That's where -- well, I came around to the 
14 right a little bit. 
15 Q. Okay. 
16 A. And then I went over the wall and came -- so I was 
17 on the victim's right. 
18 Q. All right. Watch. This guy can't see back here. 
19 A. Sorry. 
20 Q. Now what I'm asking you now is: After you had 
21 beaten the victim, dropped the weapon, where did you sit? On 
22 this diagram. 
23 A. It was -- it was right about in between here. It 
24 was on the edge of this little wall. And it was behind the 
25 parking lot. 
546 
 1 Q. Okay. 
2 A. About in here. 
3 Q. Okay. You can go ahead and return to the witness 
4 stand. 
5 What can you tell us, at least at that point, about 
6 the victim's condition after you'd beaten him and he was down 
7 on the pavement? 
8 A. I don't know. I just know that he was down. I 
9 wasn't -- I wasn't concentrating on it at that point. 
10 Q. Okay. What -- what did you do during this period of 
11 time when you're sitting there, after you dropped the tire 
12 tool and felt sick? 
13 A. I just -- I just sat there. I guess I was kind of 
14 in shock at what I had done. I thought I was going to vomit. 
15 I didn't really know what -- 
16 Q. In fact, you told the police you felt maybe you had 
17 vomited. 
18 A. Yeah. 
19 Q. Okay. Did -- what happened next? 
20 A. I look up. 
21 Q. Well -- so wait a minute. What were you doing while 
22 you were on the wall? 
23 A. I was just sitting there. I was sitting there like 
24 this (indicating). 
25 Q. Okay. So you weren't looking out on the parking lot 
547 
 1 at that point. 
2 A. No. I wasn't even -- I wasn't paying attention. 
3 Q. Okay. Then what's the next thing you remember? 
4 A. I looked up. Ryan was over the victim. His -- his 
5 back was to me and he was bent down, with his hands down in 
6 this region (indicating). 
7 Q. Okay. His back's to you? 
8 A. Yes. 
9 Q. And he's bent over? 
10 A. Yes. 
11 Q. Okay. And what else did you see? 
12 A. At -- at that point I kind of -- I got up to see 
13 what he was doing, because I thought -- we had already done 
14 enough. I mean, we were just doing this to get some money 
15 for drinks, and -- I mean, I already -- I knocked this guy -- 
16 I hit this guy until he was on the ground. I got up to see 
17 what he was doing. 
18 Q. Do you remember whether the victim at that point was 
19 face up or face down, or could you tell at that point? 
20 A. I couldn't tell at that point. 
21 Q. Okay. What happened next? 
22 A. I came around to Ryan's right, from behind him and 
23 to his right. And he was down here, and he had a belt, and 
24 he had his foot on his back, on the victim's back, and he was 
25 pulling up on the belt, like this. 
548 
 1 Q. What did you do? 
2 A. I was to his right. And I kind of got upset. And I 
3 grabbed Ryan, I grabbed him by his shirt, and I pulled him. 
4 And I pulled him back away from the car. And then I started 
5 yelling at him. I started, you know, asking him what we were 
6 doing. "What are we doing?" I ripped the -- ripped the belt 
7 off the victim. 
8 Q. How did you do that? 
9 A. I grabbed it in between his neck and the belt, and I 
10 just -- I just ripped it off. I was really upset. I just 
11 ripped it. And I remember I -- I heard the -- I heard the 
12 belt buckle, or something, I heard it clink on the ground. 
13 Q. Did you ever see it? 
14 A. I don't remember. I just remember hearing it. 
15 Q. Okay. Well, why don't you -- come down here and 
16 show us what you recall seeing the defendant doing when you 
17 looked up from your position on the wall. 
18 A. I would have been right about here, sitting on the 
19 ground. 
20 Q. Is this the wall? 
21 A. Yeah. 
22 Q. Okay. 
23 A. Ryan is over here, bent down, like this 
24 (indicating), with his back to me. 
25 Q. And that's what you first observed when you looked 
549 
 1 back up? 
2 A. That's correct, yes. 
3 Q. Okay. And then you got up and approached him? 
4 A. I approached him from the right. I came over here. 
5 And I couldn't see what he was doing at first. When I got to 
6 his right, I kind of looked over his shoulder, and I saw that 
7 he was down here like this with a belt, and he was strangling 
8 the victim. 
9 Q. Okay. At that point were you able to determine 
10 whether the victim was face up or face down? 
11 A. The victim was face down. 
12 Q. You didn't know this guy, Mr. Heitholt, before this, 
13 did you? 
14 A. No, I didn't. 
15 Q. Okay. Now -- you can go back. 
16 After that, what happened? I know that's a broad 
17 question, but what do you recall happening after that -- the 
18 strangling portion? 
19 A. I got kind of upset. Started arguing with him. 
20 Didn't really know what to do. I felt bad about this man on 
21 the ground. At the same time I'm thinking, you know, What am 
22 I going to do now? Am I going to sit here and take 
23 responsibility for this or -- 
24 Q. You worried about getting caught? 
25 A. Yeah, I was also, but I -- 
550 
 1 Q. Okay. 
2 A. -- I was -- I didn't know what to do really. And I 
3 sat back down for a second. And Ryan was going through his 
4 pockets and he was going through the car. And then someone 
5 came outside. I remember I heard someone come outside. 
6 Q. Where -- when you say "come outside," tell us what 
7 you recall their location being. Come outside of what? 
8 A. Came outside the Tribune building. 
9 Q. And what do you remember seeing? 
10 A. I remember I saw -- I saw a lady, and I saw -- in 
11 the door that she came out of, there was a light on inside. 
12 And I remember I saw the silhouette of a cord. And I saw her 
13 messing with the cord. 
14 Q. A what? 
15 A. It was like a cord, like to a vacuum cleaner or 
16 something. I don't know what it was. But I saw her with 
17 this cord. And then I saw her -- she came outside. And then 
18 she -- then I crouched down a little bit. And then she went 
19 back inside. And then -- I can't remember if I told Ryan I 
20 saw her or not. But I remember I'm still -- I'm worried 
21 about this man on the ground. I'm worried about what we're 
22 going to do; if I'm going to leave. I'm worried about what I 
23 touched. I'm worried about -- 
24 Q. What you touched. 
25 A. Well -- 
551 
 1 Q. Fingerprints, you mean? 
2 A. Yeah. I'm -- 
3 Q. Okay. 
4 A. -- you know -- and -- 
5 Q. All right. 
6 A. -- and I just didn't -- 
7 Q. Let me ask you this. When you first saw this female 
8 come out and go back in, what did you say to her at that 
9 point? 
10 A. I didn't say anything to her. 
11 Q. And what was said to you by her? 
12 A. Nothing was said. 
13 Q. Okay. The -- after this female -- you saw this 
14 female come out, where was she, to the best of your 
15 recollection, when she came out? 
16 A. She was just out in front of the building. 
17 Q. Okay. So she came actually out onto the lot, or did 
18 she stay back -- 
19 A. No. She stayed back by the building. She didn't 
20 come out to the parking lot. 
21 Q. All right. But she was by the building then. 
22 A. That's correct. Yeah. 
23 Q. Okay. Show you what's -- State's Exhibit 12. Can 
24 you show us -- 
25 A. She was right in here. 
552 
 1 Q. Hold your finger up there so he can -- here. Just 
2 touch the board. 
3 A. Right there. 
4 Q. Right in that area? 
5 A. Yeah. Yes. 
6 Q. Okay. 
7 Okay. After she went back inside, what happened? 
8 A. After she went back inside, we were still there. 
9 Ryan was still going through his stuff. I was still trying 
10 to decide what to pick up and what not to pick up. I 
11 remember he said -- I was going to pick something up on the 
12 ground, and he said, "That's not ours. Don't touch that." 
13 And then a few seconds later, more people came outside. 
14 Q. Okay. Did you see where these people were exactly? 
15 A. No. I just saw them -- I just saw them up by the 
16 building. I didn't see exactly where they were. 
17 Q. Okay. And what started going on? What started 
18 happening then? 
19 A. They started yelling. And I don't remember what 
20 they yelled at first, but then I remembered, they yelled 
21 something to the extent of, "Hey, what's going on? What's 
22 going on?" And I yelled -- I yelled, "This man's hurt. Go 
23 get help." But it was more -- I was really upset, so it was 
24 more -- I was more -- 
25 Q. Well, why would you do that? 
553 
 1 A. Because I didn't -- I didn't want to leave until I 
2 knew what had happened. I mean, I didn't want that man to 
3 die for no reason, just right there. I didn't know -- I 
4 didn't know what else to do. I don't know why I said that. 
5 Q. Do you remember how you yelled back? 
6 A. Yeah. I was really upset. I was almost on the 
7 verge of tears when I yelled. I mean -- 
8 Q. What -- what did you yell? 
9 A. I yelled -- I yelled -- I yelled, "Go get help. 
10 This man needs help." 
11 Q. Okay. And then what happened? 
12 A. And then they went back inside, like they were 
13 scared. 
14 Q. Okay. And what did you do then? 
15 A. After they went back inside, we left. I walked -- 
16 we kind of walked briskly. I walked in front of the -- in 
17 front of the car. And Ryan walked behind the car. And we 
18 walked up -- we met in the alley; then we walked up -- walked 
19 down the alley -- 
20 Q. All right. Well, let me show you the diagram. You 
21 say you walked around the front end of the vehicle? 
22 A. Yeah. That's correct. 
23 Q. Okay. And we're -- are we talking about the 
24 victim's car? 
25 A. That's correct. 
554 
 1 Q. Okay. I'll show you State's Exhibit 12. Take a 
2 look at that. Show us what you remember doing. 
3 A. I was here. Ryan was over here. 
4 Q. Well, so, for the record, you're saying that Ryan 
5 was where? Point that out. 
6 A. To the rear of the car. 
7 Q. Towards the rear of the car? 
8 A. Yeah. 
9 Q. And where were you? 
10 A. I was towards the front of the car. 
11 Q. Towards the front of the car. And after these 
12 people -- this exchange, they're yelling and you yelled back 
13 and then they left -- 
14 A. Yes. 
15 Q. -- you did what? 
16 A. I walked around in front of the parking lot and went 
17 into the alley. Ryan went around. We went down the alley. 
18 Q. Okay. In this direction? That would be east, 
19 towards Fourth Street? 
20 A. Towards Fourth Street, yes. 
21 Q. Okay. So you went around the front of the car. He 
22 was in the rear area. And then you went up the alley towards 
23 Fourth Street. 
24 A. That's correct. 
25 Q. Are you ahead or behind the defendant at that point? 
555 
 1 A. I'm ahead of the defendant. 
2 Q. Okay. Did you -- well, strike that. What did you 
3 see of anybody else in the area of the building? 
4 A. Well, first I went left down Fourth Street. And 
5 then Ryan stopped me. And he grabbed me. And he pulled me 
6 back and said, "No, we got to go that way." So we turned 
7 around. And I started to go towards Broadway on Fourth 
8 Street. And when we're crossing the alley, that's when a lot 
9 of people came outside. And a lot of people were yelling. 
10 And I saw them out of the corner of my eye. And that's when 
11 we really took off. 
12 Q. Down? 
13 A. Down Fourth Street. 
14 Q. Okay. 
15 A. We started running. 
16 Q. Okay. Look again at State's Exhibit 9. First of 
17 all, can you show us the Tribune building there? Number 2; 
18 right? 
19 A. Yeah. This is the Tribune building. And here's the 
20 alley. 
21 Q. And which way did you go? 
22 A. First I went left. But then he stopped me and 
23 turned me around, and then we went right. And we were about 
24 right here, we were just back at the alley, when people came 
25 out and started yelling. And then we went down Fourth 
556 
 1 Street. We started running along here. 
2 Q. Okay. 
3 A. On Fourth Street. 
4 Q. Headed towards Broadway. 
5 A. Towards Broadway, yeah. 
6 Q. What did you take from the crime scene? 
7 A. I took the belt. 
8 Q. What about the buckle? 
9 A. No, I didn't -- I didn't take that. 
10 Q. What did you do with the belt? I mean, how did you 
11 carry it? 
12 A. At -- at some point I put it in my pocket. 
13 Q. What else did you take from the crime scene, if 
14 anything? 
15 A. That was it. 
16 Q. Okay. Keys? 
17 A. No. 
18 Q. Watch? 
19 A. No. 
20 Q. What about the tire tool? 
21 A. No. 
22 Q. You didn't take that? After you dropped it, you 
23 didn't pick it back up? 
24 A. No, I didn't. 
25 Q. Okay. What about blood on you or on the pavement? 
557 
 1 A. I had blood on me. I had blood on my hands. 
2 Q. What about around the scene? Do you remember -- 
3 A. There was blood all over the ground. There was 
4 blood on the car. 
5 Q. Do you remember what kind of shoes you had on? 
6 A. No. 
7 Q. Did you have on a pair of Sketchers brand shoes? 
8 A. I don't remember. 
9 Q. Do you remember what Ryan had on? 
10 A. No. 
11 Q. What was said, after you guys started heading down 
12 Fourth Street? Do you remember? 
13 A. We're heading down Fourth Street, and I asked 
14 Ryan -- I thought of the tire tool when we were going down 
15 Fourth Street. I said, "Ryan, did you get that?" He said, 
16 "Yeah." And I didn't see it with him. 
17 Q. Did you see him at that point carrying anything? 
18 A. No. But he told me he had it. 
19 Q. Okay. All right. You went down Fourth Street -- 
20 MR. CRANE: Judge, I'd ask the witness to step down 
21 again. 
22 THE COURT: You may. 
23 Q. Can you show us on State's Exhibit 9 where you went 
24 from there. 
25 A. We went down through the Tribune, went down Fourth 
558 
 1 Street, about here. And we crossed Broadway. Crossed 
2 Broadway on Fourth Street. And then we went into the parking 
3 lot of the diner. There's a diner right here. I remember 
4 they got a fence along the perimeter of the diner. 
5 Q. And what kind of a fence? 
6 A. Or not a fence. I'm sorry. It's a chain. It's 
7 just -- it's about that high. And it's for just parking, to 
8 keep I guess other people from parking there. I don't know 
9 what it's there for. But it's on the perimeter of the 
10 parking lot. And I remember stepping over that, to -- I 
11 remember stepping over that. And then I -- we went through 
12 the parking lot of the diner, and then we went across Fourth 
13 Street again, and we went down into Flat Branch Park. 
14 Q. Now what -- tell -- they're not from Columbia. 
15 What's down in there? 
16 A. There's -- basically it's just a creek. And there's 
17 a little park area. It's this grassy area right here. And 
18 down here, you can't really see it very well, but there's a 
19 creek right in here and a tree line right here. 
20 Q. Okay. So you went down Fourth Street? 
21 A. We went down Fourth Street. We went through the 
22 diner parking lot. Right here. Then we went across Fourth 
23 Street. And we went into the park. We went to the creek. 
24 We got to the creek, and I washed the blood off my hands in 
25 the creek. 
559 
 1 Q. So there was -- can you describe for us how much 
2 water -- or what was the creek like? 
3 A. I remember it was about up to my ankles, because 
4 when I went back to the club, my pants were wet up -- about 
5 up to my ankles. My jeans. 
6 Q. Wet feet. 
7 A. Well, I mean, my legs were -- about up to my ankles. 
8 My pants. I was wearing baggies like this. Well, I did wear 
9 them, but. So they would have been wet also. 
10 Q. Okay. How did you come up out of the creek then? 
11 A. We came up, and there's a -- there's kind of a rock 
12 embankment. And we went up the rock embankment, up here, 
13 after we crossed the creek, and then there's -- there's a 
14 grassy area where there's a lot of tree and foliage and 
15 stuff. And I remember Ryan was ahead of me at this point, 
16 and I couldn't get up. I couldn't get up after I got on this 
17 rock embankment. I was trying to get up, and it was slick, 
18 this grassy area. And finally I got up. And then we came 
19 around -- we came around here, and we came back behind the 
20 Phillips 66 gas station, which is -- which is somewhere -- I 
21 think it's right there. 
22 Q. Okay. Show them in the photo where you're at now. 
23 A. Yeah. It's right here. And we came to the -- we 
24 came around behind the gas station, to the right of the gas 
25 station. And then we got up to Providence. We came out from 
560 
 1 the gas station. And right -- when -- right here on 
2 Providence, I see this car pull up. And I see it's the same 
3 guy that I was at the party with who was wearing a cop suit. 
4 His name is Dallas Mallory. 
5 Q. Okay. Had you -- we showed a photograph of Dallas 
6 Mallory a while ago at the Swilling party in a police 
7 uniform. Had you met him, though, before this night? I 
8 mean, had you known him before the Swilling party? 
9 A. Yeah. I knew him before that. 
10 Q. Okay. And when you saw Mallory, what did you do? 
11 A. I didn't -- I didn't really know what to do. I was 
12 upset. And I didn't know what to do. And I saw him sitting 
13 there, and I just told him what we did. I told him that Ryan 
14 told me to hit this guy and we beat this guy down back there. 
15 I was motioning behind me. And I didn't know what to do. I 
16 don't know if I wanted a ride or what, but I just -- I had to 
17 tell someone what we did. And so I'm telling -- I'm telling 
18 Dallas, and -- 
19 Q. Was anybody else in the car with him? 
20 A. Yeah. There -- there were a couple of girls in the 
21 car. 
22 Q. Do you know who they were? 
23 A. No. I think I did at the time. I can't remember, 
24 though. 
25 Q. What was Mallory's reaction to all that? 
561 
 1 A. He didn't really -- he didn't really react. I mean, 
2 like -- he didn't -- he didn't understand the gravity of the 
3 situation. He knew -- I believe he knew that I was upset, 
4 but other than that -- 
5 Q. Where was Ferguson when you were talking to Mallory? 
6 A. He was right behind me. He was about two feet 
7 behind me. 
8 Q. What did the defendant, Mr. Ferguson, say to 
9 Mallory? 
10 A. He didn't say anything to Mallory. 
11 Q. What was the defendant's reaction, if you remember, 
12 to you telling Mallory -- 
13 A. He was mad about it. 
14 Q. About what you'd done? 
15 A. About what I told Mallory. 
16 Q. Okay. About -- okay. After that -- well, what 
17 happened next? You said something to Mallory. What happened 
18 next? 
19 A. We're setting at Dallas's car, and we see -- we're 
20 looking down -- Dallas's car is right here. And down 
21 Providence, in the area of the Tribune building -- no. I'm 
22 sorry. Dallas's car is right here. Right here. That -- 
23 about number 3, where this gas station is. 
24 Q. Okay. 
25 A. And down here -- 
562 
 1 Q. He can't see. 
2 A. Right there. And down Providence, at the Tribune 
3 building, somewhere on Providence a cop turned his lights on 
4 and turned his siren on. I guess he was responding to a 
5 call. At that point Dallas, he hit the gas. He about ran me 
6 over. And he -- and he just drove off. We ran up -- 
7 Q. Well, wait. Let me ask you a question. At that 
8 point do you remember -- well, strike that. When you went up 
9 to Dallas, do you remember, other than driving, what he was 
10 doing? 
11 A. He was -- he was smoking pot. I remember he was 
12 smoking -- he was smoking a zeppelin. 
13 Q. What's a zeppelin? 
14 A. It's -- it's a little pipe that comes apart, and it 
15 looks like -- I guess it looks like a blimp, kind of. That's 
16 why they call it a zeppelin. And it's got a top to it. And 
17 he was -- he was smoking that. 
18 Q. What do you put in there? 
19 A. You put marijuana in there. 
20 Q. Okay. 
21 A. And I remember -- I don't know if I was going to ask 
22 him or I asked him for a hit of it, beings I was -- I was 
23 just -- I was just out of it. My nerves were shot. I just 
24 -- I didn't know what to do. 
25 Q. You talked to him. You heard sirens. 
563 
 1 A. Yeah. 
2 Q. He takes off. 
3 A. That's correct. 
4 Q. And then what happens? Where did you guys go? 
5 A. We didn't know if the cops were responding to us or 
6 not, but -- so we started -- we didn't know if they seen us 
7 or we didn't know -- we didn't know. And so when he took 
8 off, we just started running. And we ran -- we were -- 
9 basically we were standing in the middle of the street, 
10 because that's where Dallas was, at this intersection. And 
11 then we went across Providence, over this little grassy area, 
12 into the Osco parking lot. 
13 Q. Okay. And that -- I think we got a number on Osco. 
14 A. It's number 4 right here. 
15 Q. Okay. And where did you go in that parking lot? 
16 A. We came up through here. And then we came up this 
17 way. And we came up to the -- right in front of -- in front 
18 of this building right here, until we got to Broadway, about 
19 here. So it was -- 
20 Q. And then where did you go from Broadway? 
21 A. We walked across Broadway. We walked back up to 
22 First Street. We walked back to his car. 
23 Q. Okay. Now, so, that -- once you'd gotten up to 
24 Broadway, you're back to George's, and then on down is the 
25 car? 
564 
 1 A. Yeah, that's correct. 
2 Q. Okay. You can have a seat. 
3 Now, while you -- once got back up there to 
4 George's, what do you remember going on? Or By George's. 
5 What do you remember going on? You're across Broadway. What 
6 do you remember? 
7 A. I remember -- I remember asking Ryan something 
8 about, "What are we going to say to this bouncer?" Because 
9 this bouncer's sitting in front of the club still. Just 
10 sitting in front of the door. And I'm thinking that this 
11 bouncer is going to know that -- he's going to eventually 
12 find out that something -- that something happened that night 
13 and that we were coming from that direction. I don't know. 
14 I was just -- it was a thought. And he said something about, 
15 "Don't worry about it. Don't -- it's not a big deal." 
16 And we go -- we go past the bouncer, and the club's 
17 on our left, and we're on First Street, and we're across the 
18 street -- across First Street from By George's. And I 
19 remember I'm walking like this, with my hands in front of my 
20 sweatshirt, because I've got blood on them. And we're 
21 walking down First Street, and we get to his car. To Ryan's 
22 car. And we get to Ryan's car -- 
23 Q. What happened there? 
24 A. He opens the trunk. And I was going to put the belt 
25 in the trunk, but he said, "No, wait." And he fished around 
565 
 1 in his trunk and he got out a plastic grocery bag. I don't 
2 remember what kind it was, but it was just a regular grocery 
3 bag. And he said, "Here, put that -- put this stuff in 
4 here." 
5 Q. Plastic kind? Not brown paper bag? 
6 A. That's correct. Yeah. Yeah. And I remember he 
7 put -- he put some stuff in there. I saw him put the tire 
8 tool in there. And I put the belt in last. And then he -- 
9 he -- he -- he twisted it up and he put it back in the trunk, 
10 and then we went to the car. I took my sweatshirt off. 
11 Q. What do you mean? You were at the car. You mean 
12 from the trunk? 
13 A. We went from the trunk to the -- to the car. 
14 Q. And then what? 
15 A. We had our coats in the car. And I can't remember 
16 if I took my sweatshirt off and I put my coat on top of it or 
17 not, but I know I put my coat on. And he put his coat on. 
18 And then we went back into the club. 
19 Q. You went back inside. 
20 A. That's correct. 
21 Q. And from the time you talked to the police back in 
22 March '04, you've said you went back inside. 
23 A. That's correct. 
24 Q. Went in the second time that night. 
25 A. Yeah. 
566 
 1 Q. And what went on inside? 
2 A. We went back into the club. And I was -- I was 
3 just -- I was really upset. I didn't know -- I'm sitting 
4 here thinking, We -- we didn't know if the man was dead yet. 
5 We didn't know. I remember I asked Ryan. He said, "Well, I 
6 think he's dead." And I remember just sitting there 
7 thinking -- we went back to a table, and I'm just sitting 
8 there thinking, you know, We really did that for nothing. I 
9 mean, that was -- it was -- it was just disgusting. And -- 
10 Q. Was there -- what about people in there? 
11 A. I mean, there was still people in the club. It 
12 was -- they were still serving drinks. There were still a 
13 lot of people there. People were still dancing. 
14 Q. Did you see Kelly -- the defendant's sister, Kelly? 
15 A. Not that I can remember. 
16 Q. What about her friend, Christine Lo? 
17 A. No, not that I can remember. 
18 Q. And what did you do in there? Did you drink? What 
19 did you do? 
20 A. Ryan -- he wanted -- and he got a couple drinks. I 
21 remember he got one for me. I didn't really -- I didn't 
22 really feel like drinking. 
23 Q. Well, I thought you guys were out of money. 
24 A. Yeah. Well, I don't know if he got money from the 
25 victim or not. But I know when we got back to the bar, he 
567 
 1 goes in a compartment in his wallet and he takes out this $20 
2 bill, and he -- he says, "Man" -- he's looking at me, he's 
3 kind of smiling, and he says, "We just did that for nothing. 
4 We just did that for nothing. I had this the entire time and 
5 I forgot about it." 
6 Q. What did you drink? 
7 A. He bought me another -- another -- I believe it was 
8 an Amaretto Sour. I didn't drink most of it. I got a glass 
9 of water. 
10 Q. What did you and him talk about inside the bar? 
11 A. I didn't -- I didn't say anything. I was just upset 
12 about what we'd done. I really didn't say anything to him. 
13 Q. If -- if this murder occurred at -- in between 2 and 
14 2:30, roughly, that's certainly after what a normal closing 
15 time would be for the bar. 
16 A. Yeah. I believe normal closing time is 1:30. 
17 Q. But it's your testimony you guys went in there. 
18 A. We went in there. 
19 Q. When did you leave? What was going on when you 
20 left? How did that happen? 
21 A. Well, we didn't leave. I remember I wanted to go 
22 home. That's all I really wanted to do, was go home. And 
23 Ryan would go up to the door. He went up to the door, to the 
24 front of the building, and he said, "We can't leave yet. 
25 There's a cop outside." And I just -- I was intent on going 
568 
 1 home. And he would -- periodically he'd go back to the front 
2 of the bar, and he'd say, "No, the cop's still there. The 
3 cop's still there. We can't leave." And I was just sitting 
4 at this table. Finally he came back. And everyone was 
5 getting up, and they were making everyone leave. Ryan says 
6 to me, "Everyone's leaving. Let's go." So we get out. And 
7 we go out with the crowd. We go out the doors of By 
8 George's, and there's cop parked on First Street, just 
9 standing outside of his car. We go until about -- we get to 
10 First Street, and we go left, just not even in the 
11 direction -- opposite direction of the cop. And I remember 
12 I'm still walking like this. Then we go left. We go back to 
13 Ryan's car. 
14 Q. Okay. Left is to the car. 
15 A. Yeah. Left down First Street. 
16 Q. All right. And what happened then? 
17 A. Then we got in Ryan's car. At some point he -- he 
18 turned around, or he took a right down First Street, and so 
19 we were going down Ash, the way that we went when we did the 
20 robbery. And he went down -- 
21 Q. Towards Providence? 
22 A. Towards Providence on Ash. 
23 Q. Okay. So you're coming from the bar area, First 
24 Street, down Ash, to Providence in the car now. 
25 A. That's correct. 
569 
 1 Q. And what -- tell us about what happened. 
2 A. We go down Ash. And then we take a right on 
3 Providence. And we see that there's -- there's cops 
4 everywhere. And I just remember thinking, "We did this. 
5 This is all because of us." There's kids running across the 
6 street, not knowing what the cops are doing. And we look off 
7 to our left, and there's cops everywhere. And there's people 
8 walking around. And I -- I saw -- I saw what I thought was a 
9 white body bag. And then I just -- at that point I just -- I 
10 realized that, you know, that man was dead. That we -- we 
11 killed that man. For nothing. 
12 Q. Where did you drive to then? 
13 A. Well, we're on Providence, and he takes a right onto 
14 Broadway. So we go onto Broadway. 
15 Q. What were you thinking then? 
16 A. Then I'm -- I'm just -- I remember -- I didn't know 
17 what to do. I wanted to -- I wanted to turn myself in. And 
18 I remember it was -- we were going down Broadway, and I 
19 remember the feeling of just -- it was so unreal, that we 
20 could just do something like that, and now we're -- 
21 MR. ROGERS: I'm going to object, Your Honor. It's 
22 not responsive to the question. 
23 THE COURT: All right. If you'll ask a question, 
24 Mr. Crane. 
25 Q. Well, when you were driving down Broadway, after 
570 
 1 you -- you were on Providence, and then you headed on 
2 Broadway? 
3 A. Yeah. That's correct. 
4 Q. And you were leaving the area. 
5 A. Yes. 
6 Q. What were you thinking? 
7 A. I was thinking how -- how unreal it was. How messed 
8 up it was that we could just do something like that and then 
9 just drive away from it. How we could just -- we could just 
10 -- we could just kill this man -- rob this man and kill this 
11 man, and we could just drive away and leave it all behind us. 
12 (Discussion off the record between counsel.) 
13 - - - 
14 Counsel approached the bench and the following 
15 proceedings were held: 
16 MR. CRANE: This is the part where -- subject of the 
17 defendant's motion in limine, wherein there's a conversation 
18 about the prior -- the one -- the prior -- where a month ago 
19 they were together and he had gotten -- Erickson had got 
20 arrested. Ferguson was upset about that. Remember that 
21 motion in limine? 
22 THE COURT: Yes, I remember. 
23 MR. CRANE: I've admonished him not to bring it up 
24 until such time as we approached. 
25 MR. ROGERS: I would renew the motion in limine at 
571 
 1 this time. Object, Your Honor. It's not relevant to 
2 anything. 
3 THE COURT: What is its relevance? 
4 MR. CRANE: The testimony -- I believe this came up 
5 in deposition too. The testimony of this witness would be 
6 that he said: If I hadn't gotten arrested, back a month ago, 
7 I wouldn't have done this. 
8 THE COURT: Purportedly what the defendant said. 
9 MR. CRANE: Correct. Correct. 
10 THE COURT: The motion in limine is sustained. 
11 - - - 
12 The following proceedings were held in open court: 
13 MR. CRANE: Can I approach the witness and make sure 
14 he understands -- 
15 THE COURT: The ruling of the Court? 
16 MR. CRANE: -- the ruling of the Court on that? 
17 THE COURT: You may. 
18 (Discussion off the record between Mr. Crane and the 
19 witness.) 
20 MR. CRANE: I've advised the witness of the Court's 
21 ruling. 
22 THE COURT: Thank you. 
23 Q. During this time, as you are leaving the 
24 defendant's -- the defendant drove the whole time; correct? 
25 A. That's correct. 
572 
 1 Q. Leaving, headed down Broadway, what conversation do 
2 you recall? 
3 A. All I remember, a conversation about what we were 
4 going to do. Came on the topic of all the stuff in his 
5 trunk. He said, "Don't worry. I'm going to take care of 
6 it." He said, "You know, it doesn't really matter, man. I 
7 always wanted to kill someone before I was 60 anyway, so I 
8 just -- I just accomplished that." Like he was just crossing 
9 it off his list of goals. 
10 Q. Said he always wanted to kill somebody before he was 
11 what? 
12 A. Before he was 60 anyway. 
13 Q. The -- well, let me ask you, he said he was going to 
14 take care of the stuff in the trunk. Do you know what 
15 happened to the belt? 
16 A. No. 
17 Q. Do you know what happened to the tire tool? 
18 A. No, I don't. 
19 Q. The watch? 
20 A. No. 
21 Q. The keys? 
22 A. No. 
23 Q. The Kroger bag? Or the grocery bag, you said. 
24 A. No, I don't. 
25 Q. Okay. Where -- did you go straight home from there 
573 
 1 or what happened? 
2 A. No. We went down Broadway. We took a right onto 
3 Stadium. We went in front of the Crossroads Shopping Center 
4 and went to a gas station and bought a pack of cigarettes. 
5 Q. And then what? 
6 A. And then he took me home. 
7 Q. Who went in? 
8 A. Ryan went in. 
9 Q. And what did you do? 
10 A. I sat in the car. 
11 Q. And then he came back out? 
12 A. That's correct. 
13 Q. And where did he drive then? 
14 A. He drove down -- I believe he drove back down 
15 Broadway. I can't remember -- I can't be sure. I can't 
16 remember. 
17 Q. Well, let me ask you this. Where did you -- where 
18 did he drive to? 
19 A. Well, we went down Fairview, and then we went down 
20 Chapel Hill, and we drove to my house. 
21 Q. Okay. And back to Exhibit 5. Back to your 
22 residence on Chinkapin? 
23 A. Yeah, that's correct. 
24 Q. Okay. And what happened there? 
25 A. Then he dropped me off in front of my house; I went 
574 
 1 around back; I went into my basement. 
2 Q. You didn't go in the front door; you went around the 
3 back? 
4 A. I went around back. 
5 Q. Okay. So he let you in front -- at the front of the 
6 house this occasion? 
7 A. That's correct. 
8 Q. And what did you do with your clothes? 
9 A. I don't remember. 
10 Q. Where are they now? 
11 A. I know I left my coat that I was wearing that night 
12 at Brian Walters' house at some point. 
13 Q. Have you seen it since? 
14 A. No, I haven't seen it. I don't know what happened 
15 to my clothes. 
16 Q. Shoes? 
17 A. No. 
18 Q. What happened the next morning? 
19 A. Next morning, I woke up. Completely put it out of 
20 my mind. Didn't think about it at all. 
21 Q. What woke you up that morning? 
22 A. My mom woke me up. She told me that my friend was 
23 on the way to pick me up for school. 
24 Q. Who was that? 
25 A. Scott Turner. 
575 
 1 Q. What happened? 
2 A. Scott Turner picked me up. I got in his car. We 
3 drove to school. I went to school. I stayed until about 
4 second hour. Started to feel sick from my hangover. I went 
5 home. I don't remember who took me home. And I went home 
6 and I went to sleep. 
7 Q. On that day, that's now Thursday day, November 1, 
8 2001, what contact did you have with the defendant? 
9 A. At some point I called him that night and I told him 
10 that I was going to pay him back for the drinks that he got 
11 for me. I asked him if he'd give me a ride to school the 
12 next day. 
13 Q. Any conversation about this killing? 
14 A. No. 
15 Q. Did you see Ryan Ferguson at school that Thursday? 
16 A. On the 1st? 
17 Q. Yeah. 
18 A. No. 
19 Q. All right. The next morning, this Friday, November 
20 2nd, 2001, how did you get to school? 
21 A. Ryan Ferguson came to my house and picked me up. 
22 Q. And what was he driving? 
23 A. He was driving his blue Mercedes. The one that we 
24 drove the night of the murder. 
25 Q. And before you got in the car with him -- was there 
576 
 1 anybody else in the car? 
2 A. No, there wasn't. 
3 Q. Before you got in the car with him that Friday 
4 morning, what did you take with you? 
5 A. There was a newspaper in front of my house. I don't 
6 know if it was from the night before or what, but it was just 
7 in front of my house. I picked up the newspaper and I got in 
8 his car. So I got in his car. We started driving. He 
9 starts taking me to school. I open the newspaper. 
10 Q. You what? 
11 A. I opened up the newspaper. I didn't -- it was on 
12 the front page. 
13 MR. ROGERS: I'll object to the narrative. 
14 Q. What did you -- without going into any detail as to 
15 the, you know, exact contents of the article, what was the 
16 article that you opened the newspaper up to about? 
17 A. It was about the murder of Kent Heitholt. 
18 Q. Okay. And you're riding along with the defendant, 
19 with that article out. 
20 A. That's correct. 
21 Q. What was said? 
22 A. I said something to the extent of, "That's messed 
23 up. Did -- this happened two blocks away from where we were 
24 partying at the other night." He said, "So what?" He got 
25 kind of irritated. He said, "So what?" Like I was going to 
577 
 1 say something else after that. And that's just my opinion. 
2 I don't know whether he was going to or not. I said, "Aw, 
3 that's just messed up, because it happened a couple blocks 
4 away from where we were at." And that was the end of the 
5 conversation. 
6 Q. What did you do -- what happened to your memory of 
7 the murder? 
8 A. Best way that I can explain it is I just put it out 
9 of my mind. It wasn't something that I would have normally 
10 done. It wasn't my normal behavior. I was drunk. It wasn't 
11 something I ever wanted to remember again. And for the life 
12 of me, I just wanted to just be rid of those memories. There 
13 was no way I could go on dealing with my everyday life having 
14 to think about that. I couldn't deal with it. 
15 Q. How did you and the defendant interact after the 
16 murder? 
17 A. Less than usual. We stopped hanging out as much. 
18 There weren't really any spoken words. 
19 Q. Up until New Year's, did you have any direct 
20 conflict or arguments? 
21 A. We got in a shoving match once. It was just -- it 
22 was kind of unspoken stuff. Consciously, I don't know. I -- 
23 I don't know if I -- if I addressed anything at that point, 
24 but I was mad at him. I pushed him; he pushed me back. 
25 Q. Did you say anything about the murder on that 
578 
 1 occasion? 
2 A. No. He said something to the extent of, you know, 
3 "Friends stop hanging out in high school." 
4 Q. Okay. 
5 A. And I said, "You know, that's -- I understand. That 
6 doesn't bother me." 
7 Q. The fact that you didn't associate with Ferguson any 
8 more, I mean, did that break your heart? 
9 A. No. 
10 Q. What happened then? That's 2001. You had the rest 
11 of your junior year and senior year in high school. 
12 A. That's correct. 
13 Q. What did you do? Did you graduate? 
14 A. Yes, I did. 
15 Q. Went ahead and graduated? 
16 A. Yes. 
17 Q. What did you do after that? What did you do after 
18 you graduated high school? 
19 A. Went to college, and I stopped messing around so 
20 much, I stopped partying so much. 
21 Q. What college did you go to? 
22 A. I went to Moberly Area Community College. And I 
23 was -- 
24 Q. In Moberly? 
25 A. No. It was in Columbia. I was going to transfer 
579 
 1 into MU after my second semester there. And -- 
2 Q. Okay. And how were things going? I mean -- 
3 A. Pretty good. I stopped partying so much. I started 
4 working out a little bit. I started running a little bit. 
5 Q. Had a job? 
6 A. Had a job. 
7 Q. Going to school? 
8 A. My grades in college were better than they ever were 
9 in high school. 
10 Q. But then what started to happen? 
11 A. I started to allow myself to remember some of the 
12 stuff that I had done. Some of the things that happened that 
13 night. 
14 Q. What -- can you tell the jury what caused that to 
15 happen? What caused you to think about that? 
16 A. Well, a lot of it -- a lot of it was: On the second 
17 anniversary of the murder, they had something in the 
18 newspaper about it. And they talked about it. And they 
19 talked about this man and his life and what he had done. 
20 They talked about the murder. And they had composite 
21 sketches. And I started to think about that night. And 
22 before that, there were some memories that -- that I knew 
23 that they were significant, but they were just like 
24 snapshots, like you pause a movie. And I knew that they were 
25 significant. And whenever I thought about it, a kind of 
580 
 1 buzzer would go off in my head, as that's a defining moment 
2 in my life, but I just couldn't put a -- I couldn't put my 
3 finger on what it was. I wouldn't address it. It was too -- 
4 too -- too horrible to address. It was too horrible to 
5 contemplate in my mind, that I'd been capable of doing 
6 something like that. 
7 Q. You saw a psychologist in -- later on in the same 
8 month of November of 2001. Do you remember that? 
9 A. Yes, I do. 
10 Q. How come you went to a psychologist? 
11 A. I just -- I had gotten in trouble with -- my parents 
12 had found some pot, and my grades weren't good, and I was 
13 sneaking out and drinking on the weekends. And my parents 
14 thought that I needed someone -- I needed someone to talk to, 
15 and so I talked to a psychologist. 
16 Q. Okay. And that's the same month, about a month 
17 after the murder happened. 
18 A. Yeah. She was a -- she was a family counselor, was 
19 the title that -- I mean, I'd sit down with my parents and 
20 we'd talk about the problems and everything. 
21 Q. Well, do you remember talking to a psychologist over 
22 at the University of Missouri? 
23 A. Yeah. 
24 Q. In the -- in November of 2001? 
25 A. Yeah. 
581 
 1 Q. About your grades being bad? 
2 A. That was about my grades. That was -- that was for 
3 ADD. 
4 Q. Did you have ADD? 
5 A. No. I just -- I smoked pot and I just didn't -- I 
6 did what I liked to do in school and I did what I had to to 
7 pass. 
8 Q. During that meeting with that psychologist, and I'm 
9 talking about the university psychologist, was there any 
10 discussion about the murder? 
11 A. No. Not at all. 
12 Q. Did they do any dream therapy with you? 
13 A. No. 
14 Q. Did they use any sodium pentathol or truth serum on 
15 you or anything? 
16 A. No, they didn't. 
17 Q. Did he hypnotize you? 
18 A. No. 
19 Q. Did you bring up anything about the murder? And 
20 this is November of 2001; correct? 
21 A. That's correct. No, I didn't. 
22 Q. After you started to think about it, this murder 
23 more in October of 2003, how did that progress? Explain to 
24 us what was going on in your head. 
25 A. After a while, I was able to start to address these 
582 
 1 memories. And I started to -- there were a lot of things I 
2 always had in the back of my mind. And they were always 
3 there. I was just -- 
4 Q. Like what? What's a snapshot? You mentioned the 
5 word "snapshot" a minute ago. What's -- what's something 
6 that was there -- 
7 A. For instance, snapshot was when I -- I remember I 
8 saw Dallas. I remember seeing Dallas at that intersection. 
9 I don't remember what I did at first, when I was talking to 
10 Dallas. I don't remember -- I didn't remember what I did 
11 before I talked to him; I didn't remember what I said to him; 
12 I didn't remember where I went afterwards. I just remembered 
13 seeing him there, and I remembered that something horrible, 
14 something life-defining, something -- something -- something 
15 just clicked in my mind whenever I thought about that. I 
16 might be driving down Providence and driving by that 
17 intersection and thinking about, "Well, I saw Dallas there, 
18 but why is this important? Why is this relevant to me now? 
19 This happened this long ago; why does this matter?" 
20 Q. And as it progressed, what about -- did you have any 
21 snapshots or memories of the murder itself? 
22 A. Yes, I did. Yes, I did. 
23 Q. What's an example of that? 
24 A. I remember hitting the victim. I remember sitting 
25 down. I remember yelling at the cleaning lady to get help. 
583 
 1 I remember walking by the bouncer with my hands like this. I 
2 remember taking my coat off before I went to do the robbery. 
3 Q. Is this all something that you dreamed? You're in 
4 rapid eye movement, you go to bed one night, and you wake up 
5 in the morning and you go, "Gosh, I've got this memory of 
6 killing a man"? 
7 A. I wish it were a dream. 
8 Q. Did you use that word to try to re -- talk -- when 
9 you were talking about this? The word "dream"? 
10 A. Yes, I did. 
11 Q. What did you mean by that? 
12 A. What I meant by that was that -- well, I hoped that 
13 it was a dream. I did. I did hope that it was a dream. And 
14 the memories, they seemed so -- seemed so distant. They were 
15 so hard to tap into, that they seemed kind of dream-like. 
16 And also -- 
17 Q. As you sit there right now, did you dream about 
18 this? You're using that term "dream." 
19 A. No. I never -- I never -- I never dreamt about 
20 killing this man. 
21 Q. Okay. Let me ask you, Mr. Erickson, have you ever 
22 had a dream where you were -- you're asleep, and during the 
23 dream you think you're doing something or something bad's 
24 happening or whatever, and when you wake up, before you get 
25 completely conscious, you think that what you were dreaming 
584 
 1 was true? Have you ever had that experience? 
2 A. Yeah. And -- I mean, I've been in jail for a year 
3 and a half now. Over that. I've been dreaming that I've got 
4 to get a paper in for class, or I've got to go pick someone 
5 up; I'm driving around in my car. And then I'll wake up, and 
6 I'm in Boone County Jail, and I don't have a paper I got to 
7 turn in; I don't have anyone I got to pick up. I don't have 
8 anything I have to do. 
9 Q. You don't get up and still try to finish the paper 
10 or go find your car keys. 
11 A. No. 
12 Q. Because you're in jail. 
13 A. That's correct. 
14 Q. How did you deal with these memories as time 
15 progressed? What did you -- 
16 A. As time progressed, I would allow more memories to 
17 surface. And the more that I thought that I was capable of 
18 doing something like this, the more I allowed to surface; the 
19 more that I remembered; the more accurately I remembered it. 
20 Because when I knew that I was capable of this, when I 
21 admitted to myself that I was capable of this, that's when I 
22 could really -- I could really admit to myself and I could 
23 really allow these memories to surface and I could really -- 
24 Q. So what did you do? Who did you talk to, if 
25 anybody, about this? 
585 
 1 A. The first person I talked to, his name is Korey 
2 Iranpour. 
3 Q. Korey Iranpour? 
4 A. That's correct. 
5 Q. Okay. Now, with him, tell us about that 
6 conversation. 
7 A. We were at his mom's house. It was out in the 
8 country. It wasn't in Columbia. We'd been drinking. And 
9 this is around November. And I'd been thinking about the 
10 murder and thinking about these memories, and deep down I 
11 knew that I'd done this. I knew that I -- I knew that I was 
12 responsible for this. And I didn't know how to deal with it. 
13 I didn't know anyone that had ever been in a situation like 
14 that. 
15 Q. So what did you say? 
16 A. So I said, "Have you ever done anything, just 
17 horrible, that you're going to have to live with for the rest 
18 of your life?" 
19 Q. You told your buddy that? 
20 A. Yes. 
21 Q. Or asked your buddy that? 
22 A. I asked him. And I didn't know what to do. I 
23 was -- I didn't know what to do. 
24 Q. Now at that point, though, did you go any further? 
25 A. No. I didn't get any more specific. I just -- 
586 
 1 Q. Okay. 
2 A. -- I said that there was something I had to deal 
3 with. And I know I mentioned that I was -- I wanted help, 
4 really. I mean, I just -- I didn't know what -- what to do. 
5 Q. And who, in -- later on, still in 2003, the end of 
6 2003 actually, was the next person that you talked to about 
7 the murder? 
8 A. The next person I talked to was my friend Nick 
9 Gilpin. 
10 Q. Before -- let me direct your attention -- 
11 A. Oh, no. I'm sorry. I'm sorry. The next person I 
12 talked to in 2003 was Ryan Ferguson. 
13 Q. When was that? 
14 A. That was on New Year's of 2003-2004. 
15 Q. Okay. And where was this location? 
16 A. It was at John Whitworth's house. 
17 Q. And there was -- were you -- you two the only two 
18 there or -- 
19 A. No. There was a party. There was a New Year's 
20 party. There was a little get-together. 
21 Q. All right. And what -- how did you approach him? 
22 How did this go? 
23 A. There were a lot of people there. And there weren't 
24 so many people outside. And I said, "Man, why don't you go 
25 outside and smoke a cigarette with me." He said, "Okay." So 
587 
 1 we stepped outside. We started smoking. I said, "You know 
2 what a repressed memory is, man?" He said, "Yeah, I think I 
3 do." I said, "Well, I think I've had some of those. I think 
4 that the night we went out to that club, that we killed that 
5 man. On Halloween." And I said, "You know, I haven't 
6 remembered this for a long time, and I really think we did 
7 this." 
8 Q. And what was the defendant's reaction to you saying, 
9 "We're at this club and we killed that guy"? 
10 A. He said, "You mean the Tribune guy?" 
11 Q. And I said, "Yeah. Yeah." And he said, "No, we 
12 didn't do that. We didn't do that. We never done anything 
13 like that." 
14 Q. How did that conversation end? 
15 A. It was kind of continuous conversation. I asked him 
16 a couple of things that I remembered. That I could remember 
17 then. I said, you know, "Well, why did we sit in the club 
18 until closing time, beings there was a cop outside?" He 
19 said, "Well, because we weren't 21." And I remember -- I'm 
20 sitting there thinking, "So what? What -- are we going to 
21 get arrested for trespassing? We didn't have anything on us. 
22 What was the big deal?" 
23 And also I remember that he called me a few months 
24 after the murder and he told me that his dad had woken him up 
25 strangling him, because he found a wallet. 
588 
 1 Q. Now this was a conversation before the New Year's 
2 party? 
3 A. This was before New Year's. And I said, I said, "So 
4 what? What's -- what's the big deal?" He didn't give the 
5 detail. He just said, "My dad found a wallet." Like that 
6 was supposed to be significant to me. And I said, "So? So 
7 what are you -- what are you going at here?" I said, "You 
8 know, what's the big deal?" He said, "You know, I -- never 
9 mind. Just never mind." 
10 Q. And you talked to him about that on New Year's? 
11 A. I talked to him about that. And he said -- he said, 
12 "Well, that could have been about -- I don't know. My dad 
13 woke me up strangling me a bunch of times." Something to 
14 that effect. 
15 Q. Okay. And what else was said on New Year's? 
16 A. He asked me if I was wearing a wire. And we'd been 
17 going -- we'd go back outside and back inside. 
18 Q. At the party? 
19 A. At the party. And he asked me if I was wearing a 
20 wire. 
21 Q. A wire. Like you were having a recording device on 
22 you? 
23 A. Yeah. Yeah, that's correct. And I said -- I said, 
24 "No." And he'd been going in and out, and I asked him, "You 
25 know, are you wearing something?" I was just -- I was 
589 
 1 curious, because he was walking in and out and he was talking 
2 to other people. I didn't know if he was discussing what I 
3 said to him. I didn't -- I didn't know. 
4 But -- and then at one point, when we come back in, 
5 he's still -- he's still saying, "No, man, we didn't do 
6 that." And I still know that we did this. And he said, "No, 
7 we didn't do that." We get in the kitchen. We come back 
8 inside. He said, "You know, though, man, I always did want 
9 to kill somebody before I was 60 anyway." I said, "Man, 
10 that's not the first time you said that to me." He said, 
11 "So? So what?" And he kind of got -- that kind of freaked 
12 him out a little bit, because he knew I was starting to 
13 remember a lot of stuff that happened that night. 
14 Q. And so how did the conversation end? 
15 A. And then it just -- it kept going on and on. And 
16 then -- I didn't know what to do. And I was -- I was 
17 thinking about -- I knew they had DNA in the case. And I was 
18 thinking about this man's family. And I was thinking about 
19 maybe turning myself in or telling the police what I could 
20 remember, or turning my DNA in, so there could be some 
21 closure about this. And I told him, I said, "You know, I 
22 might go -- I might go and I might say something -- I might 
23 go talk to the police about this. You know, if we didn't do 
24 this, what's the big deal?" 
25 Q. What was his reaction to that? 
590 
 1 A. He said he'd kill me if I went and told the police 
2 about it. 
3 Q. And then what was said? 
4 A. And then I kept on -- we were in the kitchen at this 
5 point. And we're more under hushed tones. And I kept on 
6 talking about it. He said -- at some point he said, "Man, we 
7 didn't kill anybody." But he said it loud. And I knew other 
8 people were hearing it. And at this point, this was 
9 something I was trying to take care of with him. This wasn't 
10 really anyone else's business. This was something I wanted 
11 to take care of on my own. I didn't want the police to come 
12 and arrest me for this or something. That if I -- if I took 
13 responsibility for this, I wanted to come in and I wanted 
14 to -- I want to take responsibility on my own. 
15 Q. Well, then, at that point you didn't want to get 
16 caught. 
17 A. Well, that also, but I also didn't want to get 
18 caught by the police. If I was going to get caught, I wanted 
19 to get caught on my terms. 
20 Q. Okay. And so how did it end? 
21 A. And he said -- he yelled and he said, "No, man, we 
22 didn't kill him." He said, "No, we didn't kill anybody, 
23 man." And he yelled at me. And then I was pretty mad. And 
24 I drove to the party. I was the DD that night. And -- I 
25 wasn't driving my car, though. And I remember walking away. 
591 
 1 And I was just mad at this point. I was mad ever since when 
2 we were sitting in the kitchen and he said to me the thing 
3 about being 60 years old, because I knew he was just messing 
4 with me. And I said, "Man, that's not something that 
5 somebody can forget, man. That's not something somebody can 
6 forget." And I just left. 
7 And then I was driving my friend Art's car -- 
8 Q. Well, let me -- let me stop you right there. After 
9 the New Year's confrontation with Mr. Ferguson, who was the 
10 next person that you talked to about the murder? 
11 A. The next person I talked to was Nick Gilpin. 
12 Q. Okay. Now, we got the New Year's Eve party in 
13 '03-'04, and now approximately when did you talk to Nick 
14 Gilpin? 
15 A. I talked to Nick Gilpin early March of 2003. 2004. 
16 I'm sorry. 
17 Q. How -- so we're into 2004 now? 
18 A. That's correct, yeah. 
19 Q. How do you know Nick Gilpin? 
20 A. I went to school with him. He went to Rockbridge 
21 High School with me. We hung out. We knew some of the same 
22 people. 
23 Q. Where was it that this conversation occurred? 
24 A. We were at my friend John Alder's house. 
25 Q. Okay. So you're with Gilpin at another buddy's 
592 
 1 house. 
2 A. That's correct. 
3 Q. And tell us what happened. 
4 A. We just pulled up to John Alder's house. And we're 
5 parked in front of his house. Or it's a -- it's a duplex. 
6 And I said -- 
7 MR. ROGERS: Your Honor, may we approach? 
8 THE COURT: You may. 
9 - - - 
10 Counsel approached the bench and the following 
11 proceedings were held: 
12 MR. ROGERS: I'm going to object, Your Honor. It's 
13 self-serving, hearsay, bolstering, out-of-court statements 
14 allegedly made by this witness, which he says he made to 
15 other people, which are, if they're inconsistent with his 
16 trial testimony, I get to impeach them with him. If they're 
17 consistent, it's improper bolstering. 
18 MR. CRANE: The defense says that, as you heard in 
19 opening, that he was inconsistent in his details to the 
20 police, that he dreamed this up, that the police basically 
21 implanted these memories in his mind. This witness can, A, 
22 talk about what he told someone else. That's not hearsay. 
23 And it also goes directly to a relevant issue with the case, 
24 which is what his memory of this crime is. Because he talks 
25 about events in the crime. Now you heard this in my opening. 
593 
 1 MR. ROGERS: And here's the basis, Your Honor. 
2 Hearsay is, by definition, an out-of-court statement offered 
3 to prove the truth of the matter asserted in the statement. 
4 I'm assuming this is shown to prove that he had these 
5 memories and asserted to Nick Gilpin or whoever that he had 
6 the memories. So therefore it's hearsay. 
7 MR. CRANE: Also that he did it. 
8 MR. ROGERS: Well -- and there's two levels of 
9 hearsay. 
10 MR. CRANE: That's not hearsay. 
11 MR. ROGERS: Sure, it is. It's an out-of-court 
12 statement. 
13 MR. CRANE: But it's his own statement. 
14 MR. ROGERS: Doesn't matter. It's still hearsay. 
15 THE COURT: I assume that if he's impeached, you 
16 would agree that he could be recalled -- 
17 MR. ROGERS: That's correct. 
18 THE COURT: -- to -- or on redirect examination. 
19 MR. ROGERS: That's correct. 
20 THE COURT: That he can be asked about prior -- 
21 MR. ROGERS: Consistent -- 
22 THE COURT: -- consistent statements. 
23 MR. ROGERS: Which are basically, my understanding 
24 of the law, the evidence law of Missouri, okay, is that, if 
25 he's impeached with a prior inconsistent statement, by that I 
594 
 1 mean, prior to his courtroom testimony today, that he can be 
2 rehabilitated with statements which are consistent with his 
3 courtroom testimony, but earlier in time than the 
4 inconsistent statement with which he's been impeached. 
5 That's my understanding. 
6 MR. CRANE: Your Honor, he's going to testify -- 
7 what I was going to elicit from him is a conversation that he 
8 had with his buddy, wherein he articulates facts that he 
9 recalls about the murder. Now, there's a motion in limine to 
10 keep out the buddy, which I think is a consistent statement 
11 that comes in after he's been impeached. I don't know why 
12 his -- he would be precluded from testifying as to words that 
13 came out of his own mouth about the homicide. 
14 MR. ROGERS: Until -- 
15 MR. CRANE: This witness's own mouth. 
16 MR. ROGERS: Until he had been impeached about 
17 something which is inconsistent with his courtroom testimony, 
18 and unless there is some testimony in the earlier statement 
19 which is consistent with the courtroom but inconsistent with 
20 the impeachment, it's hearsay. 
21 MR. CRANE: No, it's not. 
22 THE COURT: I agree that under the federal rules it 
23 probably would not be hearsay. If we were in the federal 
24 court of Boone County. However, we are not in a federal 
25 court. I will certainly, depending on what happens on 
595 
 1 cross-examination, let you revisit it. At this time I would 
2 sustain the motion. 
3 - - - 
4 The following proceedings were held in open court: 
5 MR. CRANE: You -- can I -- I hope you'll -- well, 
6 we'll see if you'll grant me a little indulgence. 
7 Q. You and Nick Gilpin had a conversation -- when -- 
8 what did you say? Late February, early March of 2004? 
9 A. Early March. 
10 Q. And you talked to Nick about your memories of the 
11 murder. 
12 A. That's correct. Yes. 
13 Q. When you and Nick -- when you told Nick these 
14 memories of the murder, was it just you and him present? 
15 A. Yes. 
16 Q. I mean, there wasn't anybody else around? 
17 A. No. 
18 Q. Well, after you talked to Nick, was there someone 
19 else that you spoke to about the murder? 
20 A. Yeah. I spoke to Art Figueroa. 
21 Q. Art? 
22 A. Arturo Figueroa. 
23 Q. And he goes by Art? 
24 A. That's correct. 
25 Q. And his last name's what? 
596 
 1 A. Figueroa. 
2 Q. Figueroa. Now, when you talked to Art Figueroa 
3 about the murder, when was that? Was that the same night or 
4 was it a different night than you talked to Nick? 
5 A. It was less than a week later. 
6 Q. Okay. And when you talked to Art about the murder, 
7 were you with anybody other than Art? 
8 A. No, I was not. 
9 Q. In either of these conversations about the murder 
10 with Nick or Art, who initiated the conversation about the 
11 murder? 
12 A. I did. 
13 Q. Okay. 
14 Okay. What were you planning on doing for spring 
15 break of 2004? 
16 A. I was going to Breckenridge, Colorado, with Art. 
17 Q. You get a week off from school; right? 
18 A. That's correct. He has some friends in Florida, and 
19 they had rented this bed-and-breakfast out. And he told me 
20 about it. And so -- 
21 Q. Did you have occasion to contact Mr. Ferguson prior 
22 to spring break of 2004? 
23 A. Yes, I did. 
24 Q. Tell us about that conversation. 
25 A. I called him -- I didn't have his number. I was 
597 
 1 just at a party. And I wanted to talk to him about the 
2 murder. And I called him. And at the time I was in the car 
3 with some girls. And I just wanted to let him know that I 
4 was going to keep in contact with him. 
5 Q. What did you ask him for, though? 
6 A. Well, I asked him how he was doing. And I asked 
7 him -- I was in the car with a bunch of girls, and so I 
8 mentioned something about I was going to Colorado for spring 
9 break and I needed a snow board. And I knew he had a snow 
10 board. And I asked him if he still had that snow board that 
11 he used to have. He said no, he didn't. And at that time I 
12 told him that I would call him back. 
13 Q. Did you? 
14 A. No, I didn't. 
15 Q. After those conversations with the defendant -- 
16 well, your first one -- first time you started to verbalize 
17 this was Korey Iranpour. And then in January -- at the 
18 January New Year's Eve party, you talked to Mr. Ferguson 
19 about your memories, and then Mr. Gilpin, and then 
20 Mr. Figueroa. In early March of 2004, who made contact with 
21 you? 
22 A. On March 10th of 2004, Columbia police, they made 
23 contact with me outside of Moberly Area Community College. 
24 Q. Okay. You didn't go to them. 
25 A. No, I didn't. 
598 
 1 Q. And they came and found you. 
2 A. Yes, they did. 
3 Q. And that was after you'd talked to Nick? 
4 A. That's correct. 
5 Q. And what did they ask you to do? 
6 A. They told me they wanted to go talk to me -- a 
7 detective came up to me. And I was -- I was outside of my 
8 car. I was getting my books out of my trunk. And the 
9 detective said -- I didn't even see him coming until he put 
10 his badge up. He said, "We want to talk to you -- some 
11 detectives downtown want to talk to you about your car." And 
12 I knew -- I figured it didn't have anything to do with my 
13 car, and I in fact knew what they wanted to talk to me about. 
14 I said I had class and "Can we wait?" They said, "Do you 
15 have any tests?" I said, "No. We can do this now." 
16 Q. Did you go with them voluntarily or -- 
17 A. Yes, I did. 
18 Q. I mean, they didn't wrestle you to the ground? 
19 A. No. I put my books in my car, I locked my car, and 
20 we left. 
21 Q. Keep your voice up so the gentleman over here can 
22 hear you. 
23 A. Okay. 
24 Q. Not that you can't hear well, but he's the farthest 
25 away. Okay? 
599 
 1 A. Yeah. I put my books in my car, and I locked my 
2 car, and I left with the police. 
3 Q. And you went to the Columbia Police Department. 
4 A. That's correct. 
5 Q. And who did you talk to there? 
6 A. A detective by the name of -- I believe it's John 
7 Short. 
8 Q. What's he look like? 
9 A. He's short. He's balding. Oh, yeah. He wears 
10 glasses. 
11 Q. All right. Now, how did that -- this is -- so far, 
12 nobody from the police department had talked to you about the 
13 murder. 
14 A. That's correct, yes. 
15 Q. Tell us how this first portion of your conversation 
16 with Detective Short when you first met him went. 
17 A. He just said, "You know, I'm going to be frank with 
18 you. We had Nick Gilpin down here this morning. He told us 
19 that you told him that you and Ryan Ferguson were responsible 
20 for the Kent Heitholt murder." 
21 Q. Okay. Did he -- did they give you Miranda? 
22 A. Yes, they did. 
23 Q. Okay. That's your right to remain silent and all 
24 that? 
25 A. Yes. 
600 
 1 Q. And he -- so then you found out, well, Nick had been 
2 talking to them. 
3 A. Yes, that's correct. 
4 Q. Okay. And what happened from there? What was said? 
5 A. I told them that there are some things I remembered 
6 and that I was -- I thought I had done this. And at the same 
7 time -- I wanted -- I wanted to take responsibility for what 
8 I had done, but at the same time, it was hard to step over 
9 that ledge and just -- and just accept it. 
10 Q. Because what did accepting it mean? 
11 A. It meant going to prison, for a long time. It meant 
12 embarrassing my family. It meant admitting to participating 
13 in a murder. 
14 Q. When you talked to Detective Short, and thereafter 
15 another detective, Nichols, there were things you couldn't 
16 remember. 
17 A. That's correct, yes. 
18 Q. There are things that you still don't remember 
19 today. 
20 A. That's correct. 
21 Q. And there are things that you've remembered that 
22 have come back to you since you talked to the police. 
23 A. Yes, that's correct. 
24 Q. And do you recall telling the police on occasion 
25 that you didn't know whether this had happened or not? 
601 
 1 A. Yes, I do. Yes, I do. That's what I was hoping. I 
2 was hoping it hadn't happened. But I knew that it had. I 
3 just wouldn't accept it. I was in denial, is the best way I 
4 can explain it. 
5 Q. Now, the police drove you around the crime scene. 
6 A. That's correct. 
7 Q. And the surrounding area. 
8 A. That's correct. 
9 Q. Could you remember that day, March 10th, how you 
10 guys had left the scene? 
11 A. Yes, I could. 
12 Q. Why didn't you explain that to the police? 
13 A. Well, I did my best. And I remembered that we'd 
14 gone behind the Tribune building. And I remember that we 
15 came back across Providence, because I remember seeing Dallas 
16 on Providence at the intersection. I just -- at that time I 
17 just couldn't remember where we went in between. It was -- I 
18 put it out of my mind for so long. For dang near two years I 
19 didn't think about it. And so sitting here having these guys 
20 ask me questions, I wasn't able to recall everything 
21 accurately. 
22 Q. Did you, while you were at the police station, did 
23 you provide the police with your -- a sample of your saliva 
24 for DNA? 
25 A. Yes, I did. 
602 
 1 Q. What about a sample of your hair? 
2 A. That's correct, yes. 
3 Q. And what about fingerprints? 
4 A. Yes. 
5 Q. Okay. Eventually, when they were done talking to 
6 you that day, March 10th, where were you taken? 
7 A. I was taken to the -- 
8 Q. From the police department. 
9 A. I was taken from the police department -- I was 
10 taken from the major crimes unit to the police department, 
11 where I was charged with second degree murder and first 
12 degree robbery. And after that I was taken to Boone County 
13 Jail. 
14 Q. And where have you been ever since? 
15 A. Boone County Jail. 
16 Q. You've been in Boone County Jail since March 10th of 
17 2004. 
18 A. That's correct. 
19 Q. Now, after -- let me show you what's marked for 
20 identification as State's Exhibit 17 and 18. 
21 MR. ROGERS: No objection to 17, Your Honor. I 
22 object to 18 as irrelevant. May we approach? 
23 THE COURT: You may. 
24 - - - 
25 Counsel approached the bench and the following 
603 
 1 proceedings were held: 
2 MR. ROGERS: Your Honor, 18 is a photograph of my 
3 client, the defendant, Ryan Ferguson, which appears to me to 
4 be a blow-up of his high school senior yearbook picture. 
5 There is no foundation and no evidence that he looks in that 
6 picture like he looked a year earlier at the time of these 
7 alleged events. And I don't think there's any relevance to 
8 it. 
9 THE COURT: Okay. Are you objecting there is an 
10 improper foundation? I don't know that the state has 
11 actually offered this yet. 
12 MR. CRANE: I haven't even inquired with the 
13 witness. 
14 MR. ROGERS: They are getting ready to offer it. 
15 MR. CRANE: Can't lay a foundation until I talk to 
16 him, but that will be the objection; right? 
17 MR. ROGERS: That will be the objection. And -- 
18 THE COURT: Well, I'll have to -- I'll have to see 
19 what foundation is laid. 
20 MR. ROGERS: Great. 
21 THE COURT: And it may well be relevant or it may 
22 not be, depending on the foundation. 
23 MR. ROGERS: I may have jumped the gun with the 
24 objection too. 
25 - - - 
604 
 1 The following proceedings were held in open court: 
2 Q. Show you what's marked for identification State's 
3 Exhibit 17. What's that? 
4 A. That's me in my junior year. That's my yearbook 
5 picture. 
6 Q. Okay. So this was taken your junior year. And what 
7 year in school were you when the murder occurred? 
8 A. 11th grade. 
9 Q. Junior year. 
10 A. That's correct. 
11 MR. CRANE: Judge, I'd offer State's Exhibit 17. 
12 MR. ROGERS: No objection to 17, Your Honor. 
13 THE COURT: 17 is admitted. 
14 - - - 
15 State's Exhibit 17 admitted into evidence. 
16 - - - 
17 Q. It's an enlargement of your yearbook; right? 
18 A. Yes. 
19 Q. And also want to show you what's marked for 
20 identification as State's Exhibit 18. Do you recognize who's 
21 in that photograph? 
22 A. That's Ryan Ferguson our junior year. That's his 
23 yearbook picture. 
24 Q. Okay. And is that a fair and accurate depiction of 
25 how he appeared while you were going to high school with him, 
605 
 1 junior year of high school, 2003? 
2 A. Yeah. Usually he didn't look that disheveled. 
3 Usually he had his hair -- like if we were going out or 
4 something, he had his hair spiked up and had gel in it and 
5 usually wouldn't have it that messy. 
6 Q. Okay. 
7 MR. CRANE: Judge, I'd offer State's Exhibit 18. 
8 THE COURT: Do you have an objection at this time? 
9 MR. ROGERS: No, Your Honor. 
10 THE COURT: State's Exhibit 18 is admitted. 
11 - - - 
12 State's Exhibit 18 admitted into evidence. 
13 - - - 
14 Q. I'll also show you what's marked as State's Exhibits 
15 19 and 20. 
16 THE COURT: Do you want to see those before the 
17 witness does? 
18 (Mr. Crane showing the exhibits to Mr. Rogers.) 
19 THE COURT: All right. 
20 Q. Show you State's Exhibit 19. Do you recognize who 
21 that is? 
22 A. That's me when I got arrested on March 10th of 2004. 
23 Q. This is your arrest photo. 
24 A. That's correct. 
25 Q. Okay. 
606 
 1 MR. CRANE: Judge, I'd offer State's Exhibit 19. 
2 MR. ROGERS: No objection. 
3 THE COURT: 19 is admitted. 
4 - - - 
5 State's Exhibit 19 admitted into evidence. 
6 - - - 
7 Q. Show you State's Exhibit -- well, let me ask you, 
8 before I do this, did you at any time on March 10th have 
9 occasion to see -- of '04, have occasion to see the 
10 defendant? 
11 A. Yes, I did. 
12 Q. Did you talk to him, though? 
13 A. No, I didn't. 
14 Q. Okay. But you did see him that day? 
15 A. Yes, I did. 
16 Q. Okay. And I want to ask you if you'll take a look 
17 at this photograph, State's Exhibit 20 for identification. 
18 Is that a fair and accurate depiction of how the defendant 
19 appeared on the day of your arrest, March 10, 2004? 
20 A. Yes, it is. 
21 MR. CRANE: Judge, I'd offer State's Exhibit 20. 
22 MR. ROGERS: No objection. 
23 THE COURT: State's Exhibit 20 is admitted. 
24 - - - 
25 State's Exhibit 20 admitted into evidence. 
607 
 1 - - - 
2 Q. Now, from the time you were arrested and put into 
3 jail, who did you have contact with up until October of that 
4 same year? March '04 to October '04, who did you have -- and 
5 I'm not talking about other people in the prison or jail 
6 personnel. 
7 A. Uh-huh. 
8 Q. From outside the jail, who did you have contact 
9 with? 
10 A. I had contact with Arturo Figueroa. 
11 Q. On the phone? 
12 A. On visits and on the phone. 
13 Q. Okay. 
14 A. I had contact with McKya (phonetic) Brown. I had 
15 contact with -- 
16 Q. What about your parents? 
17 A. With my parents, with my sister. 
18 Q. Okay. 
19 A. I had contact with my lawyer. 
20 Q. Your what? 
21 A. With my lawyer. 
22 Q. All right. So who paid for your lawyer? 
23 A. My parents paid for my lawyer. 
24 Q. Okay. And what's his name? 
25 A. His name's Mark Kempton. 
608 
 1 Q. All right. Do you see him in the courtroom today? 
2 A. Right here in the front row. 
3 Q. This gentleman right here is your attorney, Mr. Mark 
4 Kempton. 
5 A. That's correct. Yes. 
6 Q. And he was your criminal defense attorney on this 
7 case; is that correct? 
8 A. That's correct. Yes. 
9 Q. Okay. What items -- well, did -- during the course 
10 of the prosecution of you, while you're in jail, did 
11 Mr. Kempton provide you with some documents? 
12 A. Yes. The police reports. 
13 Q. Speak up, man. 
14 A. The police reports. It was discovery. 
15 Q. Okay. How extensively -- or what photographs were 
16 you actually given? 
17 A. I was -- I was not given any photographs. 
18 Q. Okay. You communicated with your lawyer, your 
19 parents, some of your -- you mentioned some friends while you 
20 were in jail? 
21 A. Yes, that's correct. 
22 Q. Mr. Erickson, what contact during the time between 
23 March of '04 and October '04 did you have with anybody from 
24 the Columbia Police Department? 
25 A. None. 
609 
 1 Q. Okay. They can't talk to you while you're 
2 represented by an attorney, after you've been taken to the 
3 jail; correct? 
4 A. That's correct. 
5 Q. What about anybody from the prosecutor's office? 
6 Anybody at all. 
7 A. No one. 
8 Q. What contact did you have with anybody from law 
9 enforcement during -- from March 10, '04, up until October 
10 2004? 
11 A. Besides jail staff, no one. 
12 Q. Who's Dr. Delaney Dean? 
13 A. She was a lady I saw, that my lawyer had come see 
14 me, because I was -- I was having some anxiety problems with 
15 my case. 
16 Q. Okay. 
17 A. And I was just -- I was just feeling bad about it. 
18 Q. That was a psychologist that your attorney referred 
19 you to? 
20 A. That's correct. 
21 Q. And where did she meet with you? 
22 A. At the jail. 
23 Q. Okay. And that was, again, in between March and 
24 October of 2004? 
25 A. That's correct. 
610 
 1 Q. Okay. While you've been in jail, have you received 
2 medication? 
3 A. Yes, I have. 
4 Q. For what? 
5 A. I received Lexapro for anxiety. And I stopped 
6 taking that. And I received Prozac for anxiety after that. 
7 Q. Okay. Have you been depressed -- 
8 A. Yes. 
9 Q. -- at some points during this? 
10 A. I believe so, yes. 
11 Q. Why? 
12 A. Just because I -- I felt bad about what I'd done. I 
13 felt bad about embarrassing my family. I didn't know what 
14 was going to happen next. I didn't -- 
15 Q. You're in jail. 
16 A. Yeah. 
17 Q. That's not a happy thing? 
18 A. No. No, it's not. 
19 Q. Now, you mentioned Prozac? 
20 A. That's correct. 
21 Q. What was that for? 
22 A. It was just anxiety. I was having some anxiety 
23 problems, like -- I don't know if it was because I've been 
24 locked up for so long. I was in the same eight-man tank for 
25 so long, I've seen some pretty gross stuff, I wash my hands a 
611 
 1 lot. And -- 
2 Q. Did they talk to you about OCD? 
3 A. Yeah. They said that it was -- 
4 Q. What's OCD? 
5 A. It's OCD -- it's obsessive-compulsive disorder. 
6 It's just like when you worry about germs and stuff like that 
7 a lot. And she -- the lady said that some people get that 
8 who -- who -- if you're -- if you've got like a lot of 
9 freedom taken away from you, if you got a lot of anxiety. 
10 Q. Okay. Now Prozac, though, you know, is that -- 
11 Prozac, does that make you go nuts? 
12 A. No. It just -- 
13 Q. And OCD, I mean, were you a Howard Hughes guy, that 
14 couldn't stand to touch anything and -- 
15 A. No. No. 
16 Q. Okay. 
17 A. I just -- see, if I played a game of chess or 
18 something, I'd wash my hands. After I went to the bathroom, 
19 I'd wash my hands. Before I ate, I'd wash my hands. 
20 Q. Were you ever diagnosed with OCD prior to when 
21 you've been in jail, that you're aware of? 
22 A. No. No. 
23 Q. Okay. And you talked to this psychologist about 
24 maybe having ADD, which you didn't get diagnosed for, after 
25 all was said and done anyway. 
612 
 1 A. Yeah. 
2 Q. Did anybody say anything about OCD? 
3 A. Before that? 
4 Q. Yeah. 
5 A. No. No. 
6 Q. How you feeling now? I mean, are you seeing 
7 elephants floating around the room or -- 
8 A. No. I feel fine. I feel good. 
9 Q. Eventually, after you talked to your attorney, 
10 talked to your parents, had been in jail, what did you decide 
11 to do? 
12 A. I decided to plead guilty and enter on a plea 
13 agreement with the state. 
14 Q. Now, through negotiations with your -- your attorney 
15 was negotiating with my office. Before any plea could be 
16 entered, what did you do? 
17 A. Well, I decided to do a proffer. 
18 Q. A proffer? 
19 A. It was a meeting between -- between myself, my 
20 attorney, the prosecutor, and the police. 
21 Q. So this was the first occasion you talked to law 
22 enforcement since your arrest. 
23 A. That's correct. 
24 Q. And where did we meet? 
25 A. We met at the major crimes unit. 
613 
 1 Q. Over at the Columbia Police Department, right next 
2 door here; correct? 
3 A. That's correct. 
4 Q. And where was your attorney during that meeting? 
5 A. He was right next to me. 
6 Q. He was there the whole time; correct? 
7 A. That's correct. 
8 Q. And you talked again about this murder. 
9 A. That's correct. Yes. 
10 Q. And I guess I can't -- you talked about things that 
11 you had already stated you recalled when you spoke back to 
12 Nick and Art and the police the first time; correct? 
13 A. Yes. That's correct. 
14 Q. There were some things that you had remembered since 
15 those conversations about the murder; correct? 
16 A. That's correct, yes. 
17 Q. And there were some things that you still could not 
18 remember. Some details you still could not remember. 
19 Correct? 
20 A. Yes. 
21 Q. Now, after that discussion with the police, with 
22 your attorney present, then what did you do? 
23 A. I decided to take a plea agreement with the state. 
24 Q. I'm going to ask you to take a look at what's marked 
25 for identification as State's Exhibit 25. Tell me, first of 
614 
 1 all, without reading its contents, if you recognize that 
2 document. Look at both pages. 
3 A. Yes, I do. 
4 Q. What is that? 
5 A. It says that if I -- 
6 Q. No, I didn't say -- you can't do that yet. 
7 A. Oh. Sorry. It's -- 
8 Q. What -- 
9 A. -- it's my plea agreement with the state. 
10 Q. Okay. And that sets out the terms of the agreement 
11 under which you're testifying today. 
12 A. Yes. 
13 Q. And at the back of -- on the second page, flip it 
14 over, of State's Exhibit 25 for identification, whose 
15 signatures are they? 
16 A. That's your signature, my lawyer's signature -- 
17 Q. Mark Kempton, seated right there? 
18 A. -- and my signature. 
19 Q. And what's the date? Turn it over. 
20 A. It's November 4th, 2004. 
21 Q. Okay. 
22 MR. CRANE: Judge, he wants to -- you got -- I would 
23 offer State's Exhibit 25. 
24 MR. ROGERS: Objection, Your Honor. May we 
25 approach? 
615 
 1 THE COURT: You may. 
2 - - - 
3 Counsel approached the bench and the following 
4 proceedings were held: 
5 THE COURT: Let me look at the document before 
6 you -- 
7 (Court reading document.) 
8 THE COURT: Yes, sir. 
9 MR. ROGERS: Your Honor, we would object to this, 
10 based upon our previous motion in limine concerning the 
11 prosecuting attorney vouching for the truthfulness of this 
12 witness's testimony. That plea agreement contains the term 
13 "truthful" at least three times. Sometimes it has "truthful, 
14 honest, and complete." Sometimes it has "completely 
15 truthful." And it is clearly intended to communicate to the 
16 jury that the state, from its font of wisdom and experience, 
17 has determined that this witness is credible. Now, I think 
18 that that is an improper inference and I object. Or improper 
19 vouching, actually. So we object. 
20 MR. CRANE: Can I respond? 
21 MR. ROGERS: And it is also repetitious. 
22 THE COURT: Okay. 
23 MR. CRANE: Can I respond? 
24 THE COURT: You may respond. 
25 MR. CRANE: Judge, this is the same form of 
616 
 1 agreement that came in in Ringo, when Jones testified. It's 
2 been upheld. That's the terms of the agreement. The thing 
3 that the motion in limine goes to is me over and over and 
4 over saying "truthful," to vouch for the witness. This is 
5 the agreement. And that agreement memorializes the 
6 obligations of the defendant. 
7 THE COURT: You mean of the witness. 
8 MR. CRANE: Of the witness. Sorry. He was a 
9 defendant then. 
10 THE COURT: The objection's overruled. 25 is 
11 admitted. 
12 - - - 
13 The following proceedings were held in open court: 
14 MR. CRANE: 25 is admitted, Your Honor? 
15 THE COURT: State's Exhibit 25 is admitted. 
16 - - - 
17 State's Exhibit 25 admitted into evidence. 
18 - - - 
19 Q. Now, that is the agreement that you and your 
20 attorney entered into with me. You said I signed that as 
21 well. 
22 A. Yes. 
23 Q. The State of Missouri. 
24 A. Yes. 
25 Q. Correct? And in that agreement, first of all -- 
617 
 1 well, actually, I should ask: When did you plead guilty? 
2 A. I believe it was the 4th of November. 
3 Q. That day. 
4 A. Yeah. That's correct. 
5 Q. And before you pled guilty, that agreement was 
6 entered into; correct? 
7 A. That's correct, yes. 
8 Q. Okay. And first of all, what did you plead guilty 
9 to? 
10 A. Pled guilty to second degree murder, first degree 
11 robbery, and armed criminal action. 
12 Q. Okay. And you had always been charged with second 
13 degree murder and armed -- and robbery; correct? 
14 A. That's correct. 
15 Q. All right. Acting in concert with Ryan Ferguson? 
16 A. That's correct. 
17 Q. And then a third charge was added? 
18 MR. ROGERS: Objection, Your Honor. Excuse me. 
19 THE COURT: I'm sorry? 
20 MR. ROGERS: May we approach? 
21 THE COURT: You may. 
22 - - - 
23 Counsel approached the bench and the following 
24 proceedings were held: 
25 MR. ROGERS: I would object to the gratuitous 
618 
 1 comment of the prosecutor: "Acting in concert with Ryan 
2 Ferguson." Certainly this witness's guilty plea cannot be 
3 taken as any evidence that Mr. Ferguson is guilty of 
4 anything. This witness is responsible for his own guilty 
5 plea. And he can make admissions on his own behalf. He 
6 certainly can't make admissions on behalf of Mr. Ferguson. 
7 MR. CRANE: He's not. I'm only saying that's what 
8 he pled guilty to. 
9 MR. ROGERS: But you already asked him what he pled 
10 guilty to. He had already affirmed that he pled guilty to 
11 robbery in the first degree. Then you threw in 
12 Mr. Ferguson's name, which had nothing to do with what he 
13 pled guilty to. 
14 MR. CRANE: Well, golly. 
15 MR. ROGERS: Only possible -- 
16 MR. CRANE: I believe it was felony murder and 
17 robbery, acting in concert with Ryan Ferguson. 
18 MR. ROGERS: Well -- 
19 THE COURT: Was that the charge? 
20 MR. CRANE: Yeah. The only thing we did was add 
21 armed criminal action. 
22 MR. ROGERS: My point, Your Honor, is that 
23 gratuitous -- to put in the part about Mr. Ferguson, because 
24 this witness, pleading guilty to acting in concert with 
25 Mr. Ferguson, creates an improper inference based upon the 
619 
 1 plea that Mr. Ferguson must be guilty of something. 
2 THE COURT: I am going to overrule your objection. 
3 MR. CRANE: I think it's been asked and answered 
4 anyway, hadn't it? I thought he answered the question. 
5 MR. ROGERS: I don't know. I was yelling. 
6 - - - 
7 The following proceedings were held in open court: 
8 Q. You pled guilty to murder second, robbery in the 
9 first degree, acting in concert with Ryan Ferguson, and a 
10 third count of armed criminal action; is that correct? 
11 A. Yes. 
12 Q. And you pled guilty to those three counts in this 
13 courtroom. 
14 A. Yes. 
15 Q. Is that right? 
16 A. Sitting right here. 
17 Q. You were sitting right there in that chair. 
18 A. Yes. 
19 Q. And it wasn't Judge Roper; it was another judge. 
20 A. Yes. 
21 Q. And your attorney was here. 
22 A. Yes. 
23 Q. And I was here. 
24 A. Yes. 
25 Q. And it was on the record; is that correct? 
620 
 1 A. That's correct. 
2 Q. And what is your understanding of that agreement? 
3 State's Exhibit 25. 
4 A. My understanding is that I have to -- 
5 MR. ROGERS: Objection, Your Honor. The document 
6 speaks for itself. 
7 THE COURT: The document does speak for itself, 
8 Mr. Crane. 
9 MR. CRANE: Okay. 
10 THE COURT: The objection is sustained. 
11 Q. Sir, what -- if you live up to the terms of the 
12 agreement, what is your sentence? 
13 A. 25 years. 
14 Q. 25 years -- 
15 A. Yes. 
16 Q. -- in the department of corrections. 
17 A. Yes. 
18 Q. Mr. Erickson, you entered those pleas of guilty on 
19 November 4, 2004. You talked to the police in October of 
20 2004, knowing that there wasn't any physical evidence to 
21 connect you or Ryan Ferguson to the crime scene. 
22 A. That's correct. 
23 Q. You entered those pleas of guilty, having consulted 
24 with your attorney about -- previously talking to your 
25 attorney about, without getting into the details of that, 
621 
 1 conversations with your attorney, but various options that 
2 you might have with respect to your case. 
3 A. Yes. 
4 Q. And do you understand, sir, that you will receive 
5 those 25 years, assuming you have honored your part of the 
6 agreement, whether Mr. Ferguson is found guilty by this jury 
7 or not? 
8 A. Yes, I do. 
9 Q. Why did you plead guilty? 
10 A. Because I am guilty. 
11 MR. ROGERS: Objection, Your Honor. Self-serving. 
12 THE COURT: The objection -- 
13 MR. CRANE: Self-serving what? 
14 THE COURT: The objection is overruled. 
15 You may answer the question. 
16 A. Because I am guilty. 
17 Q. As the memory of this murder has progressed, you 
18 have talked about it to various people we've discussed here 
19 today, you expressed uncertainty to friends as you talked 
20 about this murder, these memories, and uncertainty to the 
21 police. What is your level of certainty today? 
22 A. I'm a hundred percent certain that me and Ryan 
23 Ferguson committed this crime. 
24 Q. And when you pled guilty, sir, what was your level 
25 of certainty about your involvement and Ryan Ferguson's 
622 
 1 involvement in this murder? 
2 A. It was a hundred percent. 
3 Q. You know, we've met several times prior to today. I 
4 mean, we weren't -- we had investigator -- or somebody was 
5 with us when we were together. But I'm going to ask you 
6 something I asked you before. You know, if you didn't do 
7 this, then tell me now. You know, I've told you before, I 
8 have no interest in putting anybody that didn't do it in 
9 jail. 
10 A. Yes, you did. 
11 Q. You got an attorney, you know. 
12 A. Yes, I do. 
13 Q. I guess it's never too late. Tell us now if it was 
14 all a dream. 
15 A. I did this. He did this. I didn't dream anything. 
16 MR. CRANE: No further questions at this time, 
17 Judge. 
18 THE COURT: We will take our afternoon break at this 
19 time. 
20 Ladies and gentlemen, the Court again reminds you of 
21 what you were told at the first recess of the Court. Until 
22 you retire to consider your verdict, you must not discuss 
23 this case among yourselves or with others, or permit anyone 
24 to discuss it in your hearing. You should not form or 
25 express any opinion about the case until it is finally given 
623 
 1 to you to decide. Do not read, view, or listen to any 
2 newspaper, radio, or television report of the trial. 
3 If you'll let me know when the jurors have had an 
4 opportunity to refresh themselves. 
5 Jury may be excused. 
6 - - - 
7 The following proceedings were held out of the presence 
8 of the jury: 
9 THE COURT: We'll be in recess then. 
10 MR. ROGERS: Your Honor, excuse me. Before the 
11 recess, Your Honor, may we be heard a minute? 
12 THE COURT: Is there something you need to approach 
13 the bench on? 
14 MR. ROGERS: Yes. 
15 THE COURT: Mr. Crane. 
16 MR. ROGERS: Your Honor, I'd ask that Mr. Kempton, 
17 who's been sitting here throughout the testimony and the 
18 opening statements, not be allowed to consult with the 
19 witness during the recess, before cross-examination. The 
20 rule has been invoked. 
21 THE COURT: Well -- 
22 MR. ROGERS: And he's not the person on trial. So 
23 he has no constitutional right to consult with counsel during 
24 his testimony. 
25 MR. CRANE: Wait a minute. You're worried about 
624 
 1 Kempton testifying? 
2 MR. ROGERS: I'm worried about Kempton talking to 
3 this witness during his testimony before cross-examination. 
4 MR. CRANE: Well, I don't know. Is that a big deal? 
5 Can you talk to him later? 
6 MR. KEMPTON: That's fine. 
7 MR. ROGERS: Great. Thank you. 
8 THE COURT: No, I don't think that he would have the 
9 right to talk to him. 
10 MR. CRANE: Okay. 
11 THE COURT: Okay. 
12 MR. CRANE: Okay. Come back then. 
13 (Recess taken.) 
14 - - - 
15 The following proceedings were held out of the presence 
16 of the jury: 
17 THE COURT: Before we bring the jury back, if you 
18 would swear this marshal as well. 
19 (Deputy Court Marshal Misty McKee sworn by Sheri 
20 Vanderhoof, Deputy Clerk, to take charge of the jury.) 
21 THE COURT: Is state ready to proceed? 
22 MR. CRANE: Ready, Your Honor. 
23 THE COURT: And the defendant ready to proceed? 
24 MR. ROGERS: Yes, Your Honor. I don't know if the 
25 Court has a copy of Mr. Erickson's deposition. 
625 
 1 THE COURT: Our local rules don't require they be 
2 filed unless they become at issue in some trial. I assume if 
3 you're asking questions relating -- 
4 MR. ROGERS: I intend to -- 
5 THE COURT: -- to his deposition, then I assume it 
6 becomes at issue. So you're filing the original deposition? 
7 MR. ROGERS: I'm filing the original, and the 
8 signature page is in the back, but it's not -- 
9 MR. CRANE: We agreed to sign the signature page. 
10 THE COURT: Did he waive? He did waive? Or he 
11 signed it? 
12 MR. ROGERS: He signed it. And there it is. 
13 MR. CRANE: We didn't waive signature, but 
14 presentment on everybody, didn't we? 
15 THE COURT: I assume that it's somewhere here. 
16 All right. Thank you. I'll show that it's filed. 
17 Other than that, is the defendant ready to proceed? 
18 MR. ROGERS: Yes, Your Honor. 
19 THE COURT: Is the jury ready to come into the 
20 courtroom? 
21 You may be excused. 
22 (Clerk excused.) 
23 - - - 
24 The following proceedings were held in the presence of 
25 the jury: 
626 
 1 THE COURT: Mr. Erickson, you will remember you're 
2 still under oath. 
3 THE WITNESS: Yes. 
4 THE COURT: Although we took a recess, I'm not going 
5 to swear you in again. You understand that. 
6 THE WITNESS: Yes, I do. 
7 THE COURT: All right. 
8 - - - 
9 CHARLES TIMOTHY ERICKSON, 
10 resumed the stand and testified further: 
11 THE COURT: Defense counsel may inquire. 
12 MR. ROGERS: Thank you, Your Honor. 
13 - - - 
14 CROSS-EXAMINATION 
15 BY MR. ROGERS: 
16 Q. Mr. Erickson, would you say that during the end of 
17 2003 and the first three months of 2004, Art Figueroa was 
18 your best friend? 
19 A. Yeah, I'd say so. 
20 Q. And are you the kind of guy who would lie to your 
21 best friend about something important? 
22 A. No. 
23 Q. And you told Art Figueroa that you didn't know 
24 whether the impressions you were having concerning the death 
25 of Mr. Heitholt were memories or dreams, didn't you? 
627 
 1 A. That's correct. 
2 Q. That's what you told Nick Gilpin too, isn't it? 
3 A. That's correct. 
4 Q. And that's what you told Ryan Ferguson at the New 
5 Year's Eve party at John Whitworth's house. 
6 A. That's correct. 
7 Q. And by the way, did you tell us earlier today, 
8 before the recess, that you were the designated driver that 
9 night and therefore you were not drinking anything? 
10 A. I didn't say I wasn't drinking. I said that I was 
11 the designated driver. 
12 Q. But you were, in fact, drinking. 
13 A. I was drinking, yes. 
14 Q. And you were using cocaine. 
15 A. That's correct. 
16 Q. And so you will agree that your memory of your 
17 conversations with Mr. Ferguson might be somewhat impaired. 
18 A. No. I wasn't drunk when I talked to Ryan Ferguson. 
19 Q. But you were drinking and you were using cocaine. 
20 A. That's correct. 
21 Q. But that doesn't impair you. 
22 A. I -- I wasn't impaired. I wasn't impaired to where 
23 I couldn't drive. I wasn't intoxicated, and that's why I was 
24 driving my friend's car. 
25 Q. All right. Now, after you talked with Gilpin, and 
628 
 1 after you talked with Figueroa, it wasn't that long until the 
2 police arrested you, was it? 
3 A. No, it wasn't. 
4 Q. And what happened then is: You were leaving your 
5 house to go to school; right? 
6 A. That's correct. 
7 Q. And looking at the state's map, Exhibit 5, you were 
8 still living here? 
9 A. Yes. 
10 Q. On Chinkapin Court? 
11 A. That's correct. 
12 Q. And the Moberly Area Community College is up here 
13 off of Broadway? 
14 A. Yes. That's correct. 
15 Q. Just to the -- 
16 A. To the left of Fairview. 
17 Q. -- west, left or west of Fairview Road. 
18 A. That's correct. 
19 Q. Am I correct that the Moberly Area Community College 
20 has more than one campus? 
21 A. That's correct. 
22 Q. Doesn't make sense to have the Moberly Area College 
23 in Columbia if there wasn't also one in Moberly; right? 
24 A. Yes. That's correct. 
25 Q. All right. When you arrived there and parked your 
629 
 1 car, you got out of your car, you started to get your books 
2 out of the trunk, and you were approached by Detective 
3 Piester; is that correct? 
4 A. I can't remember what his name was. 
5 Q. He tells you something about your car; correct? 
6 A. He said that the detectives downtown wanted to talk 
7 to me in regards to my car. 
8 Q. You knew that wasn't true. 
9 A. Yes, I do. 
10 Q. Did you tell him that? 
11 A. No, I didn't. 
12 Q. But you did agree to go downtown with him. 
13 A. That's correct. 
14 Q. When you got there, you talked first with a 
15 Detective Short; correct? 
16 A. That's correct. 
17 Q. And you described him as a short guy. 
18 A. Yes. 
19 Q. By the way, how tall were you back in October of 
20 19 -- excuse me, of 2001? 
21 A. Probably five six, five seven. 
22 Q. Okay. You were a short guy too. 
23 A. Yeah. 
24 Q. Have you grown since then? 
25 A. I might be five seven, five eight. Maybe an inch or 
630 
 1 two. Not more than that. 
2 Q. Okay. And was Ryan about the same size as you were? 
3 A. Yes. 
4 Q. Were you husky? Were you skinny? Were you medium? 
5 How were you built? 
6 A. I was pretty skinny. Skinnier than I am now. 
7 Q. Skinnier than you are now. 
8 A. Yeah. 
9 Q. Okay. And was Ryan's build about the same as he 
10 appears to be now? 
11 A. I don't know. He's -- he's more muscular than -- he 
12 was more muscular than me then. He's more muscular than he 
13 was then. Now. 
14 Q. He is more muscular now than he was then? 
15 A. Yes. 
16 Q. Okay. So he was skinnier then than he is now. 
17 A. Yes. 
18 Q. Okay. The first guy you talked to was Detective 
19 Short; is that correct? 
20 A. Yes. 
21 Q. And that first conversation with Detective Short was 
22 not recorded or videotaped, was it? 
23 A. I don't believe so. 
24 Q. And after that, Detective Short told you he was 
25 going to do a videotaped interview of you, didn't he? 
631 
 1 A. No, I don't think he ever said that he was turning 
2 the video camera on. I remember that I saw that there was a 
3 video camera on in -- there was a video camera in the room, 
4 and so I figured that it was being videotaped, but I don't 
5 believe he ever said anything to me about turning on the 
6 video camera. 
7 Q. Is that a different room than the first conversation 
8 we showed? 
9 A. No. It was the same room. 
10 Q. Same room. Was the video camera on during the first 
11 one, as far as you know? 
12 A. No. Not that I know of, no. 
13 Q. Could you see a little red light when it was on? 
14 A. I don't recall if there was a red light or not. 
15 Q. Okay. Anyway, there was a second -- you since 
16 learned that your second conversation with Mr. Short was 
17 videotaped; correct? 
18 A. Yeah. Yes. 
19 Q. And you viewed that videotape with your lawyer or 
20 somebody; correct? 
21 A. Yes. That's correct. 
22 Q. And then, after that videotape, you went driving 
23 around downtown Columbia with Detective Nichols; is that 
24 correct? 
25 A. Yes. 
632 
 1 Q. And that trip was also videotaped, even though the 
2 video camera was mainly showing what's outside the car and 
3 not you; is that right? 
4 A. That's correct. 
5 Q. And there was -- you've also viewed that videotape. 
6 A. Yes, I did. 
7 Q. And that's the day you were arrested. 
8 A. Yes. 
9 Q. And then after that, you went back to the police 
10 department, didn't you? 
11 A. Yes, I did. 
12 Q. Back in the same room. 
13 A. Yes. 
14 Q. That you had been in with Mr. Short. 
15 A. Yes. 
16 Q. And at that time you were questioned by Mr. Nichols. 
17 A. That's correct. 
18 Q. And that was also videotaped, wasn't it? 
19 A. Yes, it was. 
20 Q. Okay. Have you had an opportunity view that 
21 videotape? 
22 A. Yes, I have. 
23 Q. Now, let's talk, first of all, about the 
24 conversation that was not videotaped. When you were first 
25 arrested, advised of your rights, and questioned by 
633 
 1 Mr. Short. The first thing he told you was, "Hey, Nick 
2 Gilpin tells us you said you and Ryan did it." Right? 
3 A. Yes. 
4 Q. And your response to him at that time was, "I don't 
5 even remember," wasn't it? 
6 A. I believe that was one of the things I said, yes. 
7 Q. That was your immediate response to being 
8 confrontated -- confronted with the accusation that you had 
9 been involved in the murder of Kent Heitholt, wasn't it? 
10 A. Yes. 
11 Q. Okay. At that time, you wanted to satisfy your own 
12 mind as to whether or not you had been involved, didn't you? 
13 A. Deep down I always knew that I had done this. 
14 Q. I'm not asking about deep down. 
15 A. Well, you -- I mean -- 
16 Q. At that time you wanted -- 
17 A. In my mind, my conscious mind, maybe. 
18 Q. You wanted to satisfy your conscious mind as to 
19 whether or not you'd been involved; right? 
20 A. Possibly. I don't really know how to explain it, 
21 honestly. 
22 Q. You were not deliberately lying to the police at any 
23 time, were you? 
24 A. No, I was not. 
25 Q. And you were not deliberately lying to your best 
634 
 1 friend Art Figueroa when you told him you didn't know if it 
2 was a dream or a memory, were you? 
3 A. I told them that I had these memories. And I said I 
4 might be confusing them with dreams. But honestly, if you 
5 want to know the truth, that was more of just wishful 
6 thinking. 
7 Q. The question is: Were you deliberately lying to Art 
8 Figueroa when you said you might be confusing these memories 
9 with dreams? 
10 A. No, I wasn't. Because I was still in denial at that 
11 point. 
12 Q. Okay. And I -- if you can listen to the question 
13 and answer the question -- 
14 A. I'm just trying to -- 
15 MR. CRANE: Judge, I think he responded to the 
16 question. If he doesn't like the answer, that's one thing. 
17 But he responded to the question. 
18 THE COURT: Is there an objection, Mr. Crane? 
19 MR. CRANE: Yeah. There's no question on the table. 
20 He's commenting on the answer. He responded. 
21 Q. Mr. Ferguson, I will ask a question. Please 
22 limit -- 
23 MR. CRANE: This is Mr. Erickson. 
24 Q. Excuse me. Mr. Erickson. I'm sorry. Mr. Erickson, 
25 I will ask a question. Please limit your answer to the 
635 
 1 question and not try to explain something that I'm not asking 
2 you. Okay? 
3 A. Well, I'm just trying to explain my answer. 
4 Q. If your answer needs to be explained, Mr. Crane will 
5 have a chance to do a redirect examination and explaining. I 
6 will ask a question, and I'm entitled to an answer. Okay? 
7 A. Yes. 
8 Q. Now, the question is: You were not consciously 
9 lying to Mr. Figueroa when you said that you didn't know 
10 whether they were dreams or memories, were you? 
11 A. No. I was hoping they were dreams. 
12 Q. And you were not consciously lying to Mr. Gilpin 
13 when you said you didn't know if they were dreams or 
14 memories, were you? 
15 A. No. No, I wasn't. 
16 Q. And you were not consciously lying to Detective 
17 Short when you said you didn't really remember the murder, 
18 were you? 
19 A. The best way to explain it -- 
20 Q. Excuse me. Did you hear the question? 
21 A. I don't know. It's hard to explain, because I 
22 always had the memories, and they were always -- 
23 Q. Let me ask you another question. 
24 MR. CRANE: Well, Judge, doesn't he get an 
25 opportunity to complete his answer? 
636 
 1 MR. ROGERS: He doesn't get an opportunity to make 
2 speeches that are not responsive, Your Honor. 
3 THE WITNESS: I'm trying to respond. 
4 THE COURT: Excuse me. Pardon me. 
5 THE WITNESS: Sorry. 
6 THE COURT: Mr. Erickson, when the attorneys are 
7 discussing a matter, we don't need a third party. Okay? 
8 THE WITNESS: I'm sorry. 
9 THE COURT: Thank you. 
10 Now, what was your response, sir? 
11 Q. My question is: You were not consciously lying to 
12 Detective Short when you said, "I -- I don't even remember 
13 it," were you? 
14 A. No. 
15 Q. Okay. Thank you. You did tell Detective Short, 
16 during that initial interview, some of the things that you've 
17 said here today, didn't you? 
18 A. Yes. Yes, I did. 
19 Q. And one thing you mentioned to him was the statement 
20 that you attributed to Mr. Ferguson, about "I always wanted 
21 to kill somebody before I was 60." 
22 A. Yes, I included that. 
23 Q. And you told that to Detective Short; correct? 
24 A. Yes. 
25 Q. And today you've told us that's something that he 
637 
 1 said to you in the car after leaving By George's the second 
2 time, on the way home. Correct? 
3 A. That's correct. 
4 Q. But you told Detective Short back on March the 10th 
5 that Ferguson had said that earlier in the evening, before 
6 the incident occurred, didn't you? 
7 A. I believe I was wrong about that. 
8 Q. But you told him, didn't you? 
9 A. I suppose I did. 
10 Q. And you told us today that Mr. Ferguson parked up 
11 near the corner of First and Ash; is that correct? 
12 A. That's correct. 
13 Q. Can you see where I'm pointing? 
14 A. Yeah. 
15 Q. But you told Detective Short on March the 10th that 
16 Ferguson parked in the restaurant parking lot next to By 
17 George's, didn't you? 
18 A. No, I didn't say that. 
19 Q. You didn't say that you had parked on the restaurant 
20 parking lot next to By George. 
21 A. No, I don't believe I ever said that. 
22 Q. Have you had an opportunity to review Mr. Short's 
23 report? 
24 A. I don't know if I read it or not. 
25 Q. Okay. Well, let me show you it, to see if that will 
638 
 1 refresh your recollection. 
2 MR. ROGERS: May I approach the witness, Your Honor? 
3 MR. CRANE: Well, wait a minute, Judge. I'm going 
4 to object at this point. He's going to refresh the witness's 
5 recollection with what somebody else wrote? 
6 MR. ROGERS: Yes. 
7 MR. CRANE: That's -- that's improper. 
8 MR. ROGERS: I'm attempting to. 
9 THE COURT: Well, the objection is sustained. You 
10 may refresh his recollection with a writing that he wrote, 
11 but not with someone else's writing. It's the author of the 
12 subject that you may refresh the recollection with. 
13 MR. ROGERS: My understanding, Your Honor, is that 
14 anything can be used to attempt to refresh a witness's 
15 recollection. 
16 THE COURT: I've ruled on the objection. It's 
17 sustained. 
18 MR. ROGERS: May we approach? 
19 THE COURT: You may. 
20 - - - 
21 Counsel approached the bench and the following 
22 proceedings were held: 
23 MR. ROGERS: I'm not attempting to introduce this 
24 report as evidence, or use it as past recollection recorded, 
25 in which case it could only be used with a foundation laid by 
639 
 1 the person who made the recording. But I think in terms of 
2 refreshing recollection, physical objects can be used. 
3 Statements of other people can be used. Anything can be 
4 used. 
5 MR. CRANE: Judge, the other objection I would make 
6 is that it's hearsay. I mean, he's giving him a police 
7 report, that he didn't write, about what somebody else said 
8 he said? Now if he wants to call the author of the report, 
9 to refute the witness's statement on the stand now, that's 
10 another thing. But if he's going to start giving him other 
11 things, like a newspaper -- that means he can give him a 
12 newspaper article or a police report -- 
13 MR. ROGERS: Sure. 
14 MR. CRANE: -- and that can be hearsay, and ask him 
15 whether or not the person that wrote it got it right? 
16 MR. ROGERS: That's not what I'm asking. I'm just 
17 going to show it to him and see if that refreshes his 
18 recollection. If he says no, then it doesn't, and I'm done 
19 with it. But if it does refresh his recollection, then it's 
20 present recollection refreshed. That is the evidence. 
21 MR. CRANE: But it's what somebody else wrote down 
22 that he said. You're trying to bootstrap -- 
23 MR. ROGERS: We can -- 
24 THE COURT: One at a time. 
25 MR. ROGERS: I'm sorry. I stepped on your -- 
640 
 1 MR. CRANE: Yeah. There's nothing I can do about 
2 him calling Short. Is that who it was? 
3 MR. ROGERS: Yeah. 
4 MR. CRANE: Short, you're -- 
5 MR. ROGERS: You're calling Short. 
6 MR. CRANE: To testify. As to that. But I don't 
7 see how he can get in evidence of what somebody else said 
8 with the witness on the stand. He can ask him the question. 
9 Just like he could with the deposition. That's different. 
10 The deposition is an under-oath statement that's been 
11 recorded. He can impeach him on the stand with the 
12 deposition. Not with somebody else's. I mean, that's like 
13 he can take a newspaper article and go, "Did you say that?" 
14 THE COURT: I'm going to sustain -- 
15 MR. ROGERS: We are not trying to introduce the 
16 report. And I'm not even going to read the report into the 
17 record. I'm just going to show it to the witness, to see if 
18 he now has a present recollection of what he told Detective 
19 Short then. And if he doesn't, he doesn't. And if he does, 
20 he does. There is nothing improper about it. 
21 MR. CRANE: How can you refresh somebody else's 
22 recollection with what somebody else wrote you said? That's 
23 hearsay. 
24 THE COURT: I'm sustaining the objection. 
25 - - - 
641 
 1 The following proceedings were held in open court: 
2 Q. So you deny telling Detective John Short that you, 
3 and I'm using "you" in the plural sense, you and 
4 Mr. Ferguson, parked on a restaurant parking lot next to By 
5 George. 
6 A. I don't deny saying it. I don't remember ever 
7 saying it, though. 
8 Q. Okay. Do you recall telling Detective Short that 
9 you vomited there at the scene? 
10 A. I remember telling him that I -- that I -- I knew 
11 that I vomited, and I thought I may have vomited at the 
12 scene, yes. 
13 Q. Maybe you're confusing two different places -- two 
14 different interviews. During your videotaped interview, you 
15 told him what you just told us. "I'm sure I vomited; I just 
16 know don't know where." Correct? 
17 A. That's correct. 
18 Q. During the nonvideotaped interview, the first 
19 interview, you told them you vomited, didn't you? 
20 A. Yes. 
21 Q. At the scene. 
22 A. I told them I vomited at the scene, yes. 
23 Q. And you asked him if any vomit was, in fact, found 
24 at the scene. 
25 A. Yes. That's correct. 
642 
 1 Q. Because the memory of vomiting there at the scene 
2 was one of these memories that you had, that you didn't know 
3 whether it was accurate or a dream. 
4 A. I remember I vomited. I -- no, I never dreamt about 
5 vomiting. I remember vomiting. And I couldn't remember 
6 where I vomited. But I thought I may have vomited at the 
7 scene. I knew I vomited that night, sometime during or after 
8 the robbery took place. But I couldn't remember exactly 
9 where it was. So that's why I asked Detective Short if there 
10 was vomit found at the scene. 
11 Q. Now, you came down here right after lunch, and you 
12 and Mr. Crane did a little reenactment? Is that correct? 
13 A. That's correct. 
14 Q. And during the reenactment, the only things that you 
15 said that Heitholt did was turned towards you and then 
16 attempted to cover himself with his hands in a defensive 
17 posture; is that correct? 
18 A. That's correct. 
19 Q. When you say you were attacking Heitholt, did he do 
20 anything to you? 
21 A. No, he did not. 
22 Q. Did he hit you? 
23 A. No. 
24 Q. Did he strike at you? 
25 A. No. 
643 
 1 Q. Did he kick you? 
2 A. No. 
3 Q. You sure of all of that. 
4 A. Yes. 
5 Q. Okay. And you recall telling Detective John Short 
6 during your initial interview that Heitholt had kicked you in 
7 your testicles. 
8 A. Yeah. I thought he had, yes. 
9 Q. You thought he had. 
10 A. Yes. 
11 Q. You thought you remembered that. 
12 A. That's correct. 
13 Q. But now you remember that he didn't. 
14 A. Yes. I thought it was a -- it was a possibility 
15 that he had. 
16 Q. Okay. You have told us now, and you have 
17 demonstrated with Mr. Crane, striking Mr. Heitholt several 
18 times. 
19 A. Yes. 
20 Q. And during your initial interview, Mr. Short asked 
21 you how many times you hit Heitholt, and you said, "Just 
22 once"; isn't that true? 
23 A. That's correct. Yes. 
24 Q. But you were not deliberately lying to Mr. Short. 
25 A. No, I wasn't. I wasn't sure -- I remember I -- the 
644 
 1 first -- I remembered I hit him and he groaned. But before I 
2 hit him and he groaned, at first I couldn't remember hitting 
3 him more than that. Just the fact that he groaned, that just 
4 -- that stood out in my mind. That was what made that stand 
5 out in my mind. And that's why -- 
6 Q. When you were talking to Mr. Short -- 
7 A. No. 
8 Q. -- the first time during the initial interview, were 
9 you deliberately lying to him about the number of times that 
10 you hit Mr. Heitholt? 
11 A. No, I wasn't. 
12 Q. You told him, however, that you only hit 
13 Mr. Heitholt once. 
14 A. Yeah. I told him I thought I only hit him once. 
15 Q. Do you recall during the initial interview telling 
16 Mr. Short that you thought Ferguson had strangled Heitholt? 
17 A. Yes, I do. 
18 Q. Do you recall Mr. Short asking you, "What did he 
19 strangle him with?" 
20 A. I told him that I couldn't remember. I couldn't be 
21 sure. I started making presumptions. I remember I told him 
22 I saw Ferguson down like this, over the victim, but -- 
23 Q. Okay. And when you say "down like this," I can see 
24 your hands, but the jury can't, so I will copy -- is that the 
25 gesture you're making (indicating)? 
645 
 1 A. That's correct. With his back to me. 
2 Q. But you told Short that you thought Ferguson had 
3 strangled Heitholt with a shirt. 
4 A. I said -- I said maybe. I was asking, "A shirt?" I 
5 couldn't remember at first what it was. 
6 Q. You were asking for the details. 
7 A. That's correct. 
8 Q. Of these memories that you had repressed, but 
9 recovered. 
10 A. Yes, that's correct. 
11 Q. And, of course, during that interview, the first 
12 interview, not the one videotaped, Mr. Short didn't tell you 
13 whether you were right or wrong about the shirt, did he? 
14 A. No, he didn't. 
15 Q. Okay. And then Mr. Short asked you what had been 
16 taken from Heitholt, and you told him you thought it was a 
17 wallet, didn't you? 
18 A. Yes. That's correct. 
19 Q. And you told him that this conversation you claim 
20 you had with Ryan Ferguson about a wallet happened a day or 
21 two after the incident. 
22 A. That's not correct. I said it happened about six 
23 months after the incident. At least six months after the 
24 incident. 
25 Q. Do you then deny telling Detective Short that 
646 
 1 Ferguson contacted you a couple of days later after this 
2 incident and stated Ferguson's father had found a wallet in 
3 his residence and Ferguson stated he had gotten in trouble 
4 for this? 
5 A. Yeah, I don't believe it was a day or two later. I 
6 believe that it was months later. 
7 Q. The question is: Do you deny -- 
8 A. And I believe -- I believe that I told him that it 
9 was more than a day or two later. I believe that I told him 
10 that it was months later. 
11 Q. Okay. So you deny telling Detective Short that it 
12 was a couple of days later. 
13 A. Yeah. I don't think I did. I don't think I did. 
14 If I did, I was mistaken. 
15 Q. You got some water up there? 
16 A. I'm all right. Thank you. 
17 Q. Okay. Then you were -- you talked with Detective 
18 Short during this initial interview, the one that's not 
19 videotaped, about seeing Dallas Mallory, didn't you? 
20 A. Yes. 
21 Q. And you said that you saw Dallas Mallory by the 
22 Break Time, didn't you? 
23 A. Yeah. I thought I had. 
24 Q. Okay. And the Break Time, on State's Exhibit -- 
25 whatever this is. 
647 
 1 THE COURT: It's on the back. 
2 MR. ROGERS: Thank you. 
3 Q. 9. The Break Time is right here -- 
4 A. That's correct. 
5 Q. -- at the intersection -- the northeast corner of 
6 Providence and Ash. 
7 A. That's correct, yes. 
8 Q. And that's the only Break Time downtown that you 
9 know of. 
10 A. Yes. 
11 Q. You never call the Phillips station down further 
12 south at Locust and Providence a Break Time, do you? 
13 A. No. 
14 Q. And you were not referring to the Phillips station 
15 when you told Detective Short it was a Break Time, did you? 
16 A. I don't believe so, no. 
17 Q. Okay. And you've told us I believe earlier today 
18 that you saw Mr. Mallory stopped on Providence at a 
19 stoplight? Is that correct? 
20 A. Yes, that's correct. At an intersection. 
21 Q. Okay. An intersection with a traffic signal. 
22 A. Yes. 
23 Q. So he stopped for the light when he come up to it. 
24 A. I don't know if the light -- I don't know what color 
25 the light was. I know that he stopped at that intersection. 
648 
 1 Q. Okay. And you walked halfway across the street to 
2 the middle of Providence, because he's southbound; correct? 
3 A. That's correct. 
4 Q. And you're crossing from east to west. 
5 A. I'm not sure. I'm crossing across Providence. 
6 Q. Right. From the east side of Providence, the 
7 downtown side, to the west side of Providence, where By 
8 George's is. 
9 A. I'm going to have to take your word on that, because 
10 I'm not sure. 
11 Q. Okay. Well, let's look again at the map. And 
12 that's Exhibit 5. And it shows Providence Road going north 
13 and south; right? 
14 A. Right. 
15 Q. It shows the Columbia Daily Tribune on the right or 
16 east side? 
17 A. Yeah. So we went west. 
18 Q. Across Providence. 
19 A. That's correct. We went west. 
20 Q. Okay. And so whatever the color of the light would 
21 have been, Mr. Mallory was sitting there long enough for you 
22 to cross half of -- 
23 A. When we got to Providence, he was pulling up to the 
24 light. And then I don't know if he was fully stopped when I 
25 saw him and I yelled at him or not. But I know when I 
649 
 1 approached his car, his car was stopped. 
2 Q. Okay. And he wasn't looking at you. He was 
3 watching the traffic; correct? 
4 A. Actually, I think he might have been taking a hit of 
5 marijuana, and that's the reason he stopped at the light. 
6 Q. We'll get there in a while. Anyway, you told us -- 
7 told Detective Short back on March 10th, the day you were 
8 arrested, it was by the Break Time; correct? 
9 A. Yeah. I thought that had it had been at the Break 
10 Time. 
11 Q. All right. Well, there's a traffic light at that 
12 intersection, isn't there? 
13 A. I wasn't exactly sure where. I just knew that there 
14 was a gas station. And I really wasn't sure which one it 
15 was. 
16 Q. But you told him Break Time. 
17 A. Yeah. That's the one I thought. Because I remember 
18 seeing the Break Time. And I remember seeing the Phillips. 
19 I knew that we came back across Providence after we committed 
20 the robbery and the murder. And I just -- I had all these 
21 things in my mind, and I was trying my best to recall them 
22 accurately, but when I'm under pressure like that, when I 
23 haven't thought about these things for two years, it's hard 
24 to recall that stuff accurate. 
25 Q. Then you had the videotaped interview with Detective 
650 
 1 Short, didn't you? 
2 A. No. I believe I had a videotaped interview with 
3 Detective Nichols. After -- after they drove me around, you 
4 mean? 
5 Q. No. Here we have the initial interview with 
6 Mr. Short. Correct? 
7 A. Yes. 
8 Q. Then you have a videotaped interview with Mr. Short, 
9 after he's already talked to you; right? 
10 A. Yeah. 
11 Q. So it's actually round two. 
12 A. I suppose. 
13 Q. Okay. And you've viewed that videotape. 
14 A. Yes, I have. 
15 Q. You've seen it. 
16 MR. ROGERS: Your Honor, at this time we propose to 
17 play the video. It's actually a cassette which is -- or a 
18 DVD which is made from a videocassette. It's a DVD made from 
19 a videocassette of the interview between Detective Short and 
20 Mr. Erickson in its entirety. 
21 THE COURT: Is it marked as an exhibit? 
22 MR. ROGERS: It is not. And I can take it out and 
23 mark it and et cetera. 
24 THE COURT: I think that would probably be a good 
25 idea. 
651 
 1 MR. CRANE: Judge, assuming that's the -- you 
2 transferred it from video to DVD? 
3 MR. ROGERS: Right. 
4 MR. CRANE: Assuming that's the entire contents of 
5 what the state tendered to the defense as to John Short's 
6 interview with Mr. Erickson, state has no objection. 
7 THE COURT: Is this an edited version or -- 
8 MR. ROGERS: No. This is the entire version. 
9 THE COURT: All right. 
10 MR. CRANE: Assuming it's everything that we gave to 
11 them -- 
12 MR. ROGERS: I will make that representation. I 
13 probably still need it marked, though. 
14 THE COURT: Oh, you do. 
15 MR. ROGERS: Your Honor, this -- the defendant would 
16 offer Defendant's Exhibit A, which I will represent is an 
17 unedited DVD of the videotaped interrogation of Mr. Erickson 
18 by Detective Short. 
19 THE COURT: And there's no objection by the state? 
20 Mr. Crane? No objection? 
21 MR. CRANE: Well, no, except one thing. I mean... 
22 (Discussion off the record between Mr. Crane and 
23 Mr. Rogers.) 
24 MR. ROGERS: Can we fast-forward through the -- 
25 MR. WEIS: Yeah. 
652 
 1 MR. CRANE: I mean, if you want to show him sitting 
2 there by himself -- 
3 MR. ROGERS: Just give Mr. Weis the time. 
4 MR. CRANE: If you want to do that, that's your 
5 prerogative. It's your -- 
6 MR. ROGERS: Okay. Great. Thank you. 
7 THE COURT: Defendant's Exhibit A is admitted. 
8 - - - 
9 Defendant's Exhibit A admitted into evidence. 
10 - - - 
11 MR. ROGERS: And we'd ask leave then to publish it 
12 to the jury. 
13 THE COURT: You may. 
14 Q. Mr. Erickson, I'll be asking you questions about 
15 this videotape. 
16 THE COURT: Let me just ask you this. Since this 
17 has been marked as an exhibit, is it necessary that the court 
18 reporter take down what is on this video? 
19 MR. ROGERS: No, Your Honor. In fact, we have a 
20 transcript by another court reporter. 
21 THE COURT: For the state? 
22 MR. CRANE: I don't -- no. I don't -- 
23 THE COURT: You don't object. 
24 MR. CRANE: -- think that's necessary. 
25 THE COURT: Okay. All right. Then she need not. 
653 
 1 MR. CRANE: Just one moment, though. 
2 Did you provide me a copy of that transcript? 
3 MR. WEIS: We -- 
4 MR. CRANE: Huh? 
5 MS. BENSON: I don't know. 
6 MR. CRANE: Well, you didn't. I'd like to get a 
7 copy of that transcript if you've got it. 
8 With that, Judge, I'll shut up. 
9 THE COURT: Mr. Rogers? 
10 MR. ROGERS: Yes, Your Honor. 
11 THE COURT: Would you please approach the bench. 
12 MR. ROGERS: Yes. 
13 THE COURT: Along with Mr. Crane. 
14 - - - 
15 Counsel approached the bench and the following 
16 proceedings were held: 
17 THE COURT: You should be aware that some of the 
18 jurors who don't have hearing problems are having trouble 
19 hearing you. 
20 MR. ROGERS: All right. 
21 THE COURT: There is one that is using an assistive 
22 hearing device, and he is sitting close enough that he can 
23 hear you, but some of the others can't. I would strongly 
24 suggest that if you want to be heard, that you raise your 
25 voice. 
654 
 1 MR. ROGERS: I will do my best. Thank you, Judge. 
2 THE COURT: And I'm not sure that we can get -- 
3 maybe we can get you a lapel mic. I don't know if we can 
4 look for one. Do you happen to have that bit of technology 
5 with you? 
6 MR. ROGERS: I can speak up -- 
7 MR. CRANE: You can yell. 
8 MR. ROGERS: -- or I can stand behind the 
9 microphone. 
10 THE COURT: I don't think that microphone amplifies. 
11 There is -- there should be a mic on the jury box that 
12 amplifies. If you'll stand there, then the jurors can hear 
13 you better. 
14 - - - 
15 The following proceedings were held in open court: 
16 THE COURT: And I would ask the jurors, if you have 
17 any trouble in hearing this DVD, let us know, so we can 
18 increase the volume. 
19 MR. ROGERS: With that, would you please play the 
20 video? 
21 THE COURT: How long is the DVD? 
22 MR. ROGERS: It's 53 minutes, Your Honor. But there 
23 are some periods where nothing's being asked or said. 
24 THE COURT: And you're going to fast-forward -- 
25 MR. ROGERS: And we're going to fast-forward through 
655 
 1 those, if we can figure out how to do it. 
2 THE COURT: All right. Okay. 
3 (Defendant's Exhibit A playing.) 
4 Q. You recognize yourself, Mr. Erickson? 
5 A. Yes, I do. 
6 THE COURT: Excuse me. The jury is not able to 
7 hear. 
8 JUROR: It's real -- over here, it's real echoey and 
9 real fuzzy. We can't understand what they're saying. Turn 
10 it up or take the bass out of it. 
11 THE COURT: I don't know if there's a feedback with 
12 it or what. I am having the same difficulty and was hoping 
13 you were not. 
14 JUROR: It's echoing or something. 
15 MR. ROGERS: It's probably because it was -- 
16 JUROR: Better. 
17 THE COURT: Is that better? 
18 JUROR: Better. 
19 (Defendant's Exhibit A played.) 
20 Q. And that's the end of the first videotaped 
21 interview, the second interview with Mr. Short; is that 
22 correct? 
23 A. Yes. 
24 Q. And when you told him that you might have flipped 
25 out, you weren't talking about "I flipped out and hit 
656 
 1 Heitholt more than once"; you're saying, "I might have 
2 flipped out and thought I did something I didn't really do," 
3 weren't you? 
4 A. No. 
5 Q. That's not what you were trying to communicate to 
6 Short at that time during that video? 
7 A. I don't believe so, no. 
8 Q. Okay. 
9 MR. ROGERS: Mr. Weis, could you go back to the part 
10 marked "Unsure 2"? 
11 (Excerpt played.) 
12 Q. Now you're telling us now, here today, under oath, 
13 that you were not trying to tell Short that you were unsure 
14 about whether or not you were involved in the murder of 
15 Mr. Heitholt? 
16 A. No. 
17 Q. That's what you're telling us. You're not -- you're 
18 telling us that you're not -- 
19 A. I had -- I had told them that, but by saying that I 
20 flipped out, I meant I flipped out and hit him more than one 
21 time. 
22 Q. That's what he said. I'm talking about what you 
23 said. 
24 A. That's what I meant by saying I flipped out. 
25 Q. Okay. But you do agree that you had told him 
657 
 1 earlier in the conversation, "I mean, I might not even know 
2 what I'm talking about now." Right? 
3 A. Yeah, I said that. 
4 Q. And when you said that, did you mean that you might 
5 not even have been there? You might not have been involved 
6 in the death of Mr. Heitholt? 
7 A. Yeah. At that point I was thinking, I want to take 
8 responsibility for what I done, but I was also thinking 
9 self-preservation. 
10 Q. But you were also thinking maybe you didn't do it. 
11 A. I was hoping I hadn't done it. 
12 Q. Right. 
13 A. Deep down I knew that I had -- 
14 Q. But -- 
15 MR. CRANE: Wait a minute. Can he finish his 
16 answer? 
17 A. I was telling him that because I really hoped that I 
18 hadn't been there. And I hoped that I hadn't done that. 
19 Q. Right. 
20 A. But I did do that. 
21 Q. That's what you're telling us now. But what you 
22 were telling them then was that you didn't know whether or 
23 not you had done it. Isn't that what you were telling him 
24 then? 
25 A. I was telling him that, but deep down I knew that I 
658 
 1 had done it. I just was too much of a coward to take 
2 responsibility for it. 
3 Q. Even though you were there for the express purpose 
4 of taking responsibility. 
5 A. Yes. But I couldn't take -- I couldn't -- I 
6 couldn't step over that ledge, is the best way to explain it. 
7 It was hard, after -- after dealing with it by myself, and 
8 not thinking about it for two years, and then I'm sitting 
9 down here, and it's all just rushing at me. "My God, I 
10 killed this man. I got to take responsibility for this now. 
11 I've got to go to prison for the rest of my life. I've got 
12 to tell them what than man did. I've got to embarrass my 
13 family." It was a hard thing to do. And I didn't want to do 
14 it. And I was hesitant. 
15 Q. Are you done? 
16 A. Yeah. 
17 Q. Okay. I'll ask a question. Can you see this? 
18 A. Yeah. 
19 Q. Do you recognize that as an aerial photograph of 
20 downtown Columbia, or part of it? 
21 A. I can't really tell, to tell you the truth. It's 
22 not very dis -- I mean, it's all black and white. 
23 Q. It's black and white; correct? 
24 A. I mean, it's hard to distinguish -- 
25 Q. Okay. 
659 
 1 A. -- what -- 
2 Q. Let me point out, this is By George's here. 
3 A. Okay. 
4 Q. First Street. Ash. Break Time. Tribune building. 
5 Are you oriented now? 
6 A. Yeah. 
7 Q. Okay. 
8 A. I might -- I might get confused, because it's hard 
9 to tell what's going on. So we're going to have to go slow. 
10 Q. Okay. I will represent to you that where I'm 
11 circling in red, or orangy red, is the parking lot of the 
12 Tribune building? Okay? 
13 A. Yeah, I believe so. I believe -- yeah. 
14 Q. Okay. And that where I'm now circling is the Break 
15 Time. 
16 A. Yeah. That's correct. 
17 Q. Okay. And do you recall in the videotape, when 
18 Mr. Short asked you, "Are you sure it's the Break Time and 
19 not the Express Lane further south on Providence?" Do you 
20 remember that? 
21 A. Yes, I do. 
22 Q. And the Express Lane is, in fact, the Phillips 
23 station down here; correct? 
24 A. That's correct. Yes. 
25 MR. CRANE: Can I -- does that got an exhibit number 
660 
 1 on it? 
2 MR. ROGERS: I'm sorry. 
3 MR. WEIS: No. 
4 MR. ROGERS: No. Oops. Let me fix that. 
5 MR. CRANE: Was the disk Number 1? 
6 MR. ROGERS: It was A. And this is B. 
7 Your Honor, at this time I would offer Defendant's 
8 Exhibit B. 
9 THE COURT: Is there an objection by the state? 
10 MR. CRANE: Well, it'd be a little bit late now. 
11 MR. ROGERS: That's right. 
12 MR. CRANE: No. Have at it. 
13 THE COURT: Defendant's Exhibit B is admitted. 
14 MR. ROGERS: Thank you. 
15 - - - 
16 Defendant's Exhibit B admitted into evidence. 
17 - - - 
18 Q. And what you were telling Short is that you and you 
19 say Ferguson left the parking lot and went back across 
20 Providence. Is that correct? 
21 A. I'm -- I believe I said we went back around the 
22 Tribune building. But I -- I told him -- I told him a couple 
23 different things, because I couldn't -- I mean, I had 
24 different kind of frames in my memory. I remember seeing the 
25 Break Time. And I remember going back behind the Tribune 
661 
 1 building. And I know that we crossed Providence. I was 
2 having a hard time trying to remember which gas station we 
3 went past before we went back on Providence. 
4 Q. But my question to you now is: What you were 
5 telling Short during the videotape is that you came back here 
6 by the Break Time. 
7 A. That was one of the things I said. 
8 Q. Yeah. And you told him it was at this intersection 
9 here, that I'm drawing in just a solid blur, that you saw 
10 Mr. Mallory. 
11 A. Yeah. I believe that's correct, yeah. 
12 Q. Okay. And this was before you had seen any police 
13 reports. 
14 A. Yeah. That's correct. 
15 Q. But you had read newspaper accounts and seen 
16 television broadcasts concerning Mr. Heitholt's death for two 
17 and a half years. 
18 A. Yeah, I believe so. 
19 Q. And when Mr. Short drew your attention to the 
20 Express Lane, the Phillips, you said, "No, it's the one right 
21 there by the Tribune building. The Break Time." 
22 A. Yeah, that's right. 
23 Q. All right. 
24 A. That's right. 
25 Q. Okay. You will agree with me, will you not, that 
662 
 1 you were certain, during your interviews with Mr. Short, that 
2 you had only hit Mr. Heitholt once, until he told you, "Wait 
3 a minute. I've seen the autopsy pictures. He was hit 
4 multiple times, up to 15 times." 
5 A. Yeah. I said -- I remembered hitting him, and then 
6 he groaned. I didn't remember hitting him before that. 
7 Q. And you kept saying, "I remember the first time I 
8 hit him," didn't you? 
9 A. I thought it was the first time. 
10 Q. That's what you said. 
11 A. Well, that's what I thought, yeah. 
12 Q. Okay. Now, do you know what kind of shoes you were 
13 wearing that night? 
14 A. No, I don't. 
15 Q. You told Mr. Short that they were Nikes or New 
16 Balance? 
17 A. I told him the shoes that I wore. And I wore Nike, 
18 New Balance, K-Swiss. I also -- I believe I also said that I 
19 might have been wearing boots. But I couldn't -- I couldn't 
20 remember what I wore. 
21 Q. And you might have been wearing boots as well. 
22 A. I don't remember what shoes I put on. I just 
23 remember that my feet hurt from the shoes I was wearing with 
24 the Halloween costume, and I was happy to put something 
25 on that wasn't -- 
663 
 1 Q. So what you were wearing with the Halloween costume 
2 were penny loafers? 
3 A. They were something like that. I mean, they were -- 
4 they were shoes I wouldn't -- they were like penny loafer 
5 adult shoes. They were -- I remember they were too small for 
6 me. They just went with my outfit. 
7 Q. And they made your feet hurt. What size shoe do you 
8 wear, sir? 
9 A. About 10, 10 and a half. 
10 Q. Is that the size you've always worn, or -- 
11 A. No. 
12 Q. Since you were in high school? 
13 A. It varies, just depending on what type of shoes they 
14 are. I mean, my shoes have gotten bigger as I've grown. My 
15 feet have gotten bigger. 
16 Q. Back when you were a junior in high school, what 
17 size would you wear? 
18 A. Probably around the same thing. My feet haven't 
19 grown that much since then. Probably about a 10, 10 and a 
20 half. 
21 Q. Okay. And whether it was a 10 or a 10 and a half 
22 would depend on the kind of shoes. 
23 A. That is correct. 
24 Q. Okay. And the kinds of shoes that you owned at the 
25 time, you owned some boots, you said? 
664 
 1 A. I owned boots; I owned shoes. And that was really 
2 it. 
3 Q. In terms of boots, you owned what? Timberland 
4 boots? 
5 A. Yeah. A pair of Timberland's. I think I had a pair 
6 of American Eagle boots. I had some dress shoes. I can't 
7 remember what kind of shoes they were. 
8 Q. Okay. 
9 A. And I word Nikes, New Balances, and K-Swiss. 
10 Q. Nikes, New Balances, and what? 
11 A. And K-Swiss. 
12 Q. K-Swiss? 
13 A. Yes. 
14 Q. And those are tennis shoes or running shoes or 
15 athletic shoes, whatever you want to call it? 
16 A. Yeah, that's correct. 
17 Q. And are those the only brands that you owned, of 
18 tennis shoes, running shoes, athletic shoes? Nikes, New 
19 Balance, K-Swiss. 
20 A. I believe so. I might have had a pair of something 
21 else. I don't know. 
22 Q. Okay. Nothing that springs to mind. 
23 A. No. 
24 Q. Nothing that you -- 
25 A. In the past I've had all sorts of Reeboks -- I mean, 
665 
 1 you name it, I probably had that brand of shoe. But I -- I 
2 mean, then, the only thing I can think of is probably I -- 
3 like in high school I wore a lot of K-Swiss. Mostly Nike and 
4 New Balance and some K-Swiss. And I wore boots a lot. 
5 Q. Okay. During high school, you never owned a pair of 
6 Sketchers, did you? 
7 A. No. 
8 Q. Never had them in your life, have you? 
9 A. No, I haven't. 
10 Q. And you've never seen Ryan wear Sketchers either, 
11 have you? 
12 A. I don't -- I don't know if I have or not. 
13 Q. Okay. You don't recall ever seeing Ryan wear 
14 Sketchers. 
15 A. No. 
16 Q. You know what they are, though, don't you? 
17 A. Yeah, I know what they are. 
18 Q. Okay. Now, you told Detective Short in the first 
19 interview, the one that wasn't on the videotape, and also on 
20 this videotape, that you thought Ryan had strangled Heitholt 
21 with a shirt. Is that correct? 
22 A. I said I didn't -- I didn't know what it was. I 
23 thought it might have been a shirt. 
24 Q. Okay. And that's what you told him on the 
25 videotape. 
666 
 1 A. Yeah. I wasn't sure. Honestly. 
2 Q. And when you said, "I think it was a shirt or 
3 something," you weren't trying to lie to him, were you? 
4 A. No, I wasn't. I was just -- 
5 Q. You were telling what you could remember at that 
6 time. 
7 A. I wasn't -- it was what I thought. It was what I 
8 thought was possible. It wasn't necessarily what I 
9 remembered. 
10 Q. What you thought was possible. 
11 A. Well, I was making presumptions some of the time -- 
12 Q. Making presumptions some of the time. 
13 A. -- because there was some things I couldn't 
14 remember. 
15 Q. Because you didn't remember; right? 
16 A. There was some things I couldn't. And so I was 
17 asking him. But if you saw in the video, I'd ask him, "I 
18 don't know. Was it a shirt? Was it a bungee cord?" I 
19 couldn't remember. And I told him I couldn't remember. 
20 Q. Okay. And you said to him, "I think it was a shirt 
21 or something." Right? That was your exact words on the 
22 videotape? 
23 A. I think so. I'm not sure. 
24 Q. And he said, "Well, I know it wasn't a shirt," 
25 didn't he? 
667 
 1 A. Yes, he did. 
2 Q. And there was nothing equivocal about him, was 
3 there? 
4 A. No. 
5 Q. You know what equivocal means? 
6 A. It means that he was certain that it wasn't a shirt. 
7 Q. When I say "nothing equivocal," means he was 
8 certain, and he was projecting to you it obviously definitely 
9 wasn't a shirt; right? 
10 A. Yeah. 
11 Q. Correct? 
12 A. That's correct. I guess. 
13 Q. All right. And that's when you said, "Maybe a 
14 bungee cord or something from his car. I don't see why he'd 
15 have a rope in his car." Right? Is that correct? 
16 A. Yeah. 
17 Q. Because you were trying to rule out things that you 
18 thought might have been used. Correct? 
19 A. That's correct. Yeah. 
20 Q. And so you didn't have any memory of a bungee cord. 
21 A. (Shaking head from side to side.) 
22 Q. You didn't have any memory of a rope. 
23 A. No. 
24 Q. You were just guessing. 
25 A. Yes. 
668 
 1 Q. Because it certainly never occurred to you that it 
2 might be a belt. 
3 A. That's correct. 
4 Q. Correct? And, in fact, when Short told you it was 
5 the belt, you were incredulous, weren't you? 
6 A. Yes. 
7 Q. And you said, "Oh, really? A belt?" 
8 A. Yes. That's correct. 
9 Q. And again, later in the same interview, just a 
10 little bit later, he talks about -- he, Mr. Short, says, "So 
11 it's possible Ryan could have strangled this guy with his 
12 belt, got the keys, and you not know about it?" And you 
13 again are incredulous. And you say, "The guy -- the man's 
14 belt?" Correct? 
15 A. That's correct. 
16 Q. "His own belt?" 
17 A. That's correct. 
18 Q. And Short says, "Yes. Does that ring a bell?" And 
19 your answer is, "Not at all." 
20 A. (Nodding head up and down.) I believe he asked if I 
21 had anything in my hand, and I said, "No, I don't remember 
22 that at all." 
23 Q. Well, wait a minute. 
24 MR. ROGERS: Could you play the part marked "belt"? 
25 (Excerpt played.) 
669 
 1 A. All right. Yeah, there are two different instances, 
2 though. 
3 Q. Two different instances. 
4 A. Yeah. 
5 Q. In that instance, you're saying that the belt did 
6 not ring a bell at all. 
7 A. That's correct. Yes. 
8 Q. And when he follows up, "But you saw Ryan strangle 
9 him, though," you say, "I thought I did." Correct? 
10 A. Yes. That's correct. 
11 Q. That's, once again, expressing uncertainty as to 
12 whether you really remembered being there; right? 
13 A. That's correct. 
14 Q. Now, do you recall acting out with Mr. Crane what 
15 you say happened between you and Mr. Heitholt? 
16 A. Yes. 
17 Q. And at no time during that demonstration did you 
18 demonstrate Mr. Heitholt being thrown to the ground, did you? 
19 A. I don't believe so. I believe I said that he came 
20 to his knees, and then I hit him one more time, and then he 
21 came down. 
22 Q. Right. But you didn't say, "I threw him to the 
23 ground" or "Ryan threw him to the ground," did you? 
24 A. No, I didn't. 
25 Q. And that did not happen, did it? 
670 
 1 A. I don't believe so, no. 
2 Q. But you told Detective Short in this videotape that 
3 you -- that either you or Ryan threw him down, didn't you? 
4 A. I said, "Either that, or he fell." I said I wasn't 
5 sure. I said, "Maybe I threw him down. Maybe Ryan threw him 
6 down." I wasn't sure. 
7 Q. And then he said, "So one of you threw him down," 
8 and your answer was, "Yeah." 
9 A. That's what I thought. 
10 Q. Okay. That's what you thought there. 
11 A. Yes. 
12 Q. And that was March the 10th. 
13 A. Yes. 
14 Q. Before you read the police reports. 
15 A. That's correct. Yeah. 
16 Q. Before you read the autopsy report. 
17 A. Yeah. That's correct. 
18 Q. Before you reached your plea agreement. 
19 A. That's correct. 
20 Q. Before you made your proffer statement. 
21 A. Yes. 
22 Q. Now, you told us earlier today, in painstaking 
23 detail, about seeing Ryan with his back to you while you're 
24 sitting on the retaining wall of the parking lot, throwing 
25 up, and seeing Ryan reach down, as if strangling 
671 
 1 Mr. Heitholt. Correct? 
2 A. Yes. 
3 Q. And you talked about coming around the right side of 
4 Ryan, while he's choking Mr. Heitholt. 
5 A. Yes. 
6 Q. And seeing Mr. Heitholt there lying on his face; 
7 correct? 
8 A. Yes. 
9 Q. But you told Detective Short, the day you were 
10 arrested, on the videotape, that when you saw Ryan strangling 
11 Mr. Heitholt, that Heitholt was on his back, didn't you? 
12 A. I believe so, yes. 
13 Q. Any question about it? Would you like to see it? 
14 A. That's all right. 
15 Q. Was your purpose in talking to your friends about 
16 what you thought might have happened, to get their advice 
17 about what you should do? 
18 A. Yes. 
19 Q. And -- 
20 A. Well, that, and also I needed to -- I needed to -- I 
21 had to tell someone. I couldn't deal with it on my own any 
22 more. 
23 Q. Had to tell someone. Couldn't deal with it on your 
24 own. 
25 A. Yeah. 
672 
 1 Q. Between November 1st, 2001, and March 10th, 2004, 
2 you lived at your parents' house on Chinkapin Court here in 
3 Columbia. 
4 A. Yes. 
5 Q. Your father, even though he does not practice, is a 
6 licensed attorney. 
7 A. Yes. 
8 Q. You have an uncle who is a licensed attorney and 
9 practices criminal defense. 
10 A. Yes. 
11 Q. You have another uncle who is a licensed attorney 
12 and practices law. 
13 A. No longer. 
14 Q. Used to practice. 
15 A. Yes. 
16 Q. You have three lawyers in the family, one of whom 
17 practices criminal defense. 
18 A. Yes. 
19 Q. And you didn't ask any of them for advice about what 
20 to do in a situation where you were uncertain. Correct? 
21 A. That's correct. 
22 Q. And during that same time frame, between November 
23 1st, 2001, and March 10th, 2004, you saw a family counselor. 
24 A. Yes. 
25 Q. What was her name? 
673 
 1 A. I believe her name was Dr. Bauer. 
2 Q. Dr. Bauer. And you had private conversations with 
3 her. 
4 A. Yeah. That's correct. 
5 Q. And she told you those conversations were 
6 privileged. 
7 A. Yes. 
8 Q. And you didn't tell her anything about this 
9 repressed memory you might have had. 
10 A. No, I didn't. 
11 Q. And also during that time, in fact, just within 
12 weeks of November 1st, during the month of November, 2001, 
13 you underwent testing by some psychologists at the University 
14 of Missouri; is that correct? 
15 A. Yeah. 
16 Q. And that testing included memory testing. 
17 A. Yeah. Yes. 
18 Q. It included another battery of educational type 
19 tests. 
20 A. That's correct. 
21 Q. And they talked to you. And they gave you a chance 
22 to say anything that was on your mind. Correct? 
23 A. I don't believe that came up. It wasn't -- they 
24 weren't counseling me. They were trying to figure out why my 
25 grades were bad. 
674 
 1 Q. Okay. Your grades were bad before Halloween too, 
2 weren't they? 
3 A. Yeah. 
4 Q. They'd been bad for a while. 
5 A. Yeah. 
6 Q. And they were bad because you did as little as 
7 possible. 
8 A. Yeah. 
9 Q. And bad because you had smoked pot. 
10 A. Yeah. I had motivation problems. I smoked pot and 
11 I didn't really -- I just, like you said, I just did what 
12 I -- what was required, and I just skated by, for the most 
13 part. I didn't really take an interest in anything that was 
14 in school. But when I did take an interest in, I did well. 
15 Other than that, I didn't. 
16 Q. And in fact -- 
17 MR. CRANE: I couldn't hear. 
18 When you did take an interest, what? 
19 THE WITNESS: In -- in my -- in my classes, in my 
20 courses, I'd do well if I -- if I enjoyed learning about 
21 something, I'd do well in it, but. 
22 MR. CRANE: Sorry. 
23 Q. Okay. And your pot smoking had also been addressed 
24 professionally, hadn't it? 
25 A. Yes. I believe so. Yeah. 
675 
 1 Q. As a matter of fact, November 1st, 2001, was the day 
2 that you officially graduated from an outpatient substance 
3 abuse treatment program, wasn't it? 
4 A. I believe so. I'm not -- I'm not sure if that was 
5 the day before that or not. I don't know. 
6 Q. Okay. And during your participation in that 
7 program, you continued to smoke pot. 
8 A. Yeah. 
9 Q. And somehow beat the urine tests. 
10 A. That's correct. 
11 Q. And how did you do that? 
12 A. I would -- I would go downtown, and there's a store 
13 called The Peace Nook. I would -- 
14 Q. Called what? 
15 A. It's called The Peace Nook. It's off of Broadway. 
16 And they sold bottles of this stuff. And it was actually 
17 called "The Stuff." And it was about $20 a bottle. And it 
18 was a detoxifier. And you -- as long as you didn't smoke 
19 weed for a couple days, you could drink it, and -- about an 
20 hour before you had to take a test, you drank that, and then 
21 it would clean out your system. 
22 Q. And it would also make the test results look -- 
23 A. Yeah. For like five or six hours your -- it would 
24 appear that you had not been using drugs. 
25 Q. And so you did that on a regular basis while you 
676 
 1 were in the program. 
2 A. When I needed to, yes. 
3 Q. Let's go back to the day of your arrest, March the 
4 10th. After you finished the interview we've seen on 
5 videotape, was that when you went driving around with 
6 Detective Nichols and others? 
7 A. I believe so, yes. 
8 Q. And have you seen the videotape of the trip you took 
9 with Nichols? 
10 A. Yes. 
11 Q. You okay? 
12 A. I'm fine. 
13 Q. You need a cup of coffee or anything? 
14 A. Not right now. Thank you. 
15 Q. Okay. And you've had an opportunity to review that 
16 videotape. 
17 A. Yes. 
18 MR. ROGERS: Your Honor, I would now offer into 
19 evidence Defendant's Exhibit C, which I will represent to the 
20 Court and counsel is a DVD copy of the videotape of the car 
21 interview of Mr. Erickson. 
22 MR. CRANE: Yeah. Judge, assuming that's a complete 
23 copy of what we provided to the defense in the normal course 
24 of discovery, I don't have any objection to defense playing 
25 it with this witness. 
677 
 1 MR. ROGERS: And this is 27 minutes and 22 seconds? 
2 Sound about right? 
3 MR. CRANE: Yeah. I think that sounds right. 
4 THE COURT: Are you offering -- 
5 MR. ROGERS: Yes, Your Honor. 
6 THE COURT: -- Defendant's C? 
7 MR. ROGERS: Defendant's -- 
8 THE COURT: Exhibit C? 
9 MR. ROGERS: Yes. 
10 THE COURT: Defendant's Exhibit C is admitted. 
11 - - - 
12 Defendant's Exhibit C admitted into evidence. 
13 - - - 
14 MR. ROGERS: And ask leave to publish it to the 
15 jury, Your Honor. 
16 THE COURT: You may. 
17 MR. ROGERS: And once again -- 
18 THE COURT: How long did you say it was? 
19 MR. ROGERS: 27 minutes and 22 seconds. 
20 THE COURT: And is it -- 
21 MR. ROGERS: Mr. Nichols does not jump out of the 
22 car. So it goes straight through. 
23 THE COURT: All right. Well, hopefully not. 
24 MR. CRANE: And once again -- 
25 THE COURT: Let me just ask, before you turn it on, 
678 
 1 would the jurors like to take just a brief break before? 
2 Because this will be playing 'til probably -- for another 27 
3 minutes and 22 seconds. If you need to take a brief break, 
4 that's fine. If not, we'll go ahead and play it. 
5 MR. ROGERS: Once again, Mr. Erickson, pay 
6 attention, because I'm going to ask you questions afterward. 
7 THE COURT: And let us know if it's not clear or 
8 you're not able to hear. 
9 (Defendant's Exhibit C played.) 
10 Q. Now, Mr. Erickson, the purpose of you driving around 
11 with Detective Nichols was for you to tell him, as best you 
12 could, places you remembered being that night; right? 
13 A. Yeah. 
14 Q. And we're coming back to Defendant's Exhibit B, 
15 which is now in evidence. And I'm trying to put it so 
16 everybody can see it. 
17 MR. ROGERS: Can you guys see it there? 
18 Q. Can you see it? 
19 A. Yeah. 
20 Q. Okay. Basically -- you again start out with the 
21 police. You're driving north here on First Street. Correct? 
22 A. We're driving? 
23 Q. Yeah. North on First Street? 
24 A. Well, that's where -- that's where we parked before 
25 we went into the club. 
679 
 1 Q. No. I'm talking about you and Detective Nichols. 
2 A. Oh, okay. Yeah. All right. 
3 Q. You and Detective Nichols didn't go to the club. 
4 A. Yeah. Yeah. 
5 Q. If so, it's not on the video. 
6 A. Yeah. 
7 Q. Okay. You start here by By George's, by the club; 
8 right? 
9 A. Yeah. 
10 Q. All right. And you go north on First Street. 
11 A. Yeah. 
12 Q. And -- 
13 A. That's where I told him that Ryan parked. 
14 Q. That's where you told him Ryan parked. 
15 A. Yeah. 
16 Q. That's where you told us today Ryan parked. 
17 A. Correct. 
18 Q. Then you turned -- let me -- 
19 A. Took a right on Ash there. 
20 Q. Took a right on Ash. And you drive down here, to 
21 the intersection of Providence and Ash; correct? 
22 A. Yeah. That's correct. 
23 Q. And there's the Break Time. We saw it on the 
24 videotape; right? 
25 A. Yeah. 
680 
 1 Q. Then you drive on around and back on around east on 
2 Ash to Fourth Street, turn, go south on Fourth to Walnut, and 
3 back around to Providence? 
4 A. Yeah. 
5 Q. While you're driving with the policeman. 
6 A. Yes. 
7 Q. And then come up and come down the alley; correct? 
8 A. That's correct. 
9 Q. And it's during that little loop that you ask him 
10 where the crime happened; right? 
11 A. That's right. 
12 Q. And he -- 
13 A. I believe I asked him, "Where exactly did this 
14 happen?" 
15 Q. Right. And then you drive up the alley, and he 
16 shows you where that white or beige jeep with the dark top is 
17 parked. 
18 A. Yeah. 
19 Q. He tells you that's where Heitholt's car was parked; 
20 is that correct? 
21 A. Yes. 
22 Q. You didn't know that before. 
23 A. I knew that on the night that we did it. I couldn't 
24 remember it before then. 
25 Q. You didn't know that during this interview on March 
681 
 1 the 10th, before that -- before Nichols told you. 
2 A. I couldn't -- I couldn't recall it then, no. 
3 Q. Okay. And the other thing different about the 
4 alleyway was the -- different from March -- different between 
5 November 1st and March 10th was that the Dumpster enclosure 
6 was not there; correct? 
7 A. Yes. 
8 Q. So there's no Dumpster enclosure. 
9 A. Yes. 
10 Q. In fact, some of the shots of the cameras as the car 
11 comes up the alleyway look through where the Dumpster 
12 enclosure would have been. 
13 A. I believe so. 
14 Q. That Dumpster enclosure was tall, wasn't it? 
15 A. Yeah. I believe so. 
16 Q. Taller than you. 
17 A. Yes. 
18 Q. But when you get up there, and Nichols asks you 
19 which way you left, you look north and west; correct? 
20 A. Yeah. I looked that way. I couldn't -- I couldn't 
21 really remember which we way left. I just know that -- I 
22 knew that we crossed back across Providence. 
23 Q. And you told him, "That way." And when you said 
24 "that way," you were looking -- indicating, with the 
25 direction of your eyes, north and west, back towards the 
682 
 1 Break Time; right? 
2 A. Yeah -- yeah. Yeah. I suppose that's right. 
3 Q. Okay. And then is when he told you, "Well, don't 
4 you think you might have gone around the building and then 
5 back to the Break Time?" 
6 A. I said that was possible too. 
7 Q. And you said, "That's possible. I don't remember." 
8 Kind of an "anything's possible" kind of deal? Right? 
9 A. Not anything's possible. I knew that -- that we 
10 went -- we went around and that we went -- we ended up 
11 crossing Providence. And I knew -- I saw Dallas at the 
12 intersection. I wasn't sure exactly where I saw him, but I 
13 knew I saw him at an intersection on Providence, and I saw 
14 him after we did the robbery. 
15 Q. And you were sure, at the time you were talking to 
16 Nichols, driving around in the car, that you saw him at this 
17 intersection, the intersection of Providence and Ash, by the 
18 Break Time, didn't you? 
19 MR. CRANE: Now that misstates the evidence he just 
20 testified to. He wasn't sure if he went around the building 
21 and saw him or before. 
22 THE COURT: Would you rephrase your question, 
23 please. 
24 Q. My question is: You were sure, when you were 
25 driving around with Mr. Nichols, that the intersection where 
683 
 1 you saw Dallas Mallory was the intersection of Providence and 
2 Ash, where the Break Time is. 
3 A. I -- I wasn't sure -- completely sure. I thought 
4 that's may -- that may have been where I had seen him. 
5 Honestly. I mean -- 
6 Q. Well, he asked you how long it took, and you looked 
7 right at the Break Time, and you said, "I don't know. Maybe 
8 no time at all. Five seconds? If that's what it takes to 
9 run there." 
10 A. Well, if that's how -- how far is that? I still 
11 hadn't completely confirmed that that's where I saw Dallas. 
12 Q. That's what you were trying to do, though, say, 
13 "That's where I saw him, and it couldn't have taken very long 
14 to get there"; right? 
15 A. That's if I saw him there. 
16 Q. That's right. And you said you saw him very quickly 
17 after leaving the parking lot. 
18 A. Yeah. I also said I wasn't completely sure where I 
19 saw him. 
20 Q. Okay. Now, Detective Nichols said that he was going 
21 to familiarize you with the area; right? You heard that? 
22 A. Yeah. 
23 Q. And that's when he starts going down Fourth Street, 
24 past the Broadway Diner. Right? 
25 A. Yeah. 
684 
 1 Q. Now, you have lived in Columbia several years. 
2 A. Yes. 
3 Q. Were you familiar with that downtown area? 
4 A. A little bit. Not -- not real familiar with it, 
5 but -- 
6 Q. Okay. 
7 A. -- a little bit. 
8 Q. You knew -- had you been in Flat Branch Park before? 
9 A. No. No. I had been to Flat Branch Restaurant 
10 before, but -- I mean, I couldn't name -- I couldn't tell you 
11 probably where Walnut Street was. I couldn't tell you were 
12 Ash was. I could tell you where Providence and -- Providence 
13 and Broadway were. 
14 Q. Okay. 
15 A. I didn't spend a lot of time downtown. 
16 Q. Had you been in the park before -- 
17 A. No. 
18 Q. -- whatever its name might have been? 
19 A. No. 
20 Q. Okay. And when you saw the Broadway Diner, nothing 
21 looked familiar to you. 
22 A. Not at that time, no, it didn't. 
23 Q. And when you drove on down further and saw Flat 
24 Branch Park, nothing looked familiar to you. 
25 A. No. 
685 
 1 Q. And when you drove over here to Fifth Street, and on 
2 down by the campus, nothing looked familiar to you. 
3 A. No. 
4 Q. And when you drove back across to Locust and 
5 Providence, nothing looked familiar to you. 
6 A. No. 
7 Q. And when you passed the Phillips 66 station, which 
8 Nichols referred to as a convenience store, it didn't look 
9 familiar. 
10 A. No. 
11 Q. And you didn't look to the left and see the Osco 
12 parking lot and say, "Oh, my, that looks familiar," did you? 
13 A. No, I didn't. 
14 Q. Even though the Osco parking lot is right across 
15 from the Phillips station. 
16 A. That's correct, yes. 
17 Q. And then you came back, across Broadway, and you 
18 were driving around, looking for the -- what you call wooden 
19 embankment; is that correct? 
20 A. Yeah. I remember I had to climb up something. I 
21 remember having a hard time doing it. And I couldn't 
22 remember exactly what it was. So we drove by a couple 
23 things. They looked a little familiar. And I said, "That 
24 may have been what I had to climb up." 
25 Q. And when you saw the wooden embankment, where was 
686 
 1 that? 
2 A. I think that was behind the bank. One of them -- 
3 one of them was behind the car rental place. I think. I 
4 don't know. And one of them was behind the bank, I think. 
5 I'm not sure. 
6 JUROR: Your Honor. 
7 THE COURT: Yes, sir. 
8 JUROR: Can I clarify where a location is? 
9 THE COURT: You may not ask questions, but hopefully 
10 the attorneys will make that clear to you. 
11 MR. ROGERS: Hopefully I will. I may be able to. 
12 THE COURT: If you're not able to see something, do 
13 let me know. 
14 JUROR: But two exhibits show it two different 
15 places. 
16 MR. ROGERS: Okay. I might need to clarify that 
17 myself. 
18 Q. Let me ask you this. By George is at the corner of 
19 First and Broadway; is that correct? 
20 A. Yeah. 
21 Q. Would that be here where I'm putting a red X? 
22 JUROR: Okay. 
23 Q. And so this labeled "By George" is actually wrong? 
24 Is that a fair statement? 
25 JUROR: Yes. 
687 
 1 MR. CRANE: Just for the record -- 
2 MR. ROGERS: I'm asking the witness. I'm sorry. 
3 MR. CRANE: Just so we can make a record of this, am 
4 I correct that your exhibit -- 
5 MR. ROGERS: Exhibit B had the wrong building. 
6 MR. CRANE: -- your exhibit, you labeled another 
7 building "George's" -- 
8 MR. ROGERS: Right. 
9 MR. CRANE: -- and had that wrong, marked wrong on 
10 your exhibit -- 
11 MR. ROGERS: Right. 
12 MR. CRANE: -- all this time. 
13 MR. ROGERS: All this time. And I'm now going to 
14 have to change it, if I can. 
15 (Mr. Rogers marking on Defendant's Exhibit B.) 
16 THE COURT: And we're talking about Exhibit B; is 
17 that correct? 
18 MR. ROGERS: Talking about Exhibit B. 
19 MR. CRANE: Defendant's Exhibit B. 
20 MR. ROGERS: Defendant's Exhibit B. And I have now 
21 removed the label that says "By George" from the wrong place, 
22 and I'm going to put it on the right place. 
23 Q. Does that square with your recollection? 
24 A. Yes. Yes. 
25 Q. Okay. I'm going to get something that erases and 
688 
 1 erase the marks I made. 
2 Okay. And you, of course, from where you are, can't 
3 even read the little "By George" on the black and white 
4 thing, can you? 
5 A. I didn't even notice it. 
6 Q. Okay. Fair enough. 
7 Now, behind what bank is the wooden -- or what 
8 building is the wooden fence that you were talking about? 
9 A. I believe it's right there, at the corner of 
10 Providence and Ash. I think it's the Boone County National 
11 Bank. I think that's it. 
12 Q. You think it's right here where you see these trees? 
13 A. Well -- 
14 THE COURT: If you need to step down to see, I will 
15 permit you to step down. 
16 Q. Yeah. 
17 A. I mean, like I said, it's hard to tell, because 
18 everything's in black and white, and a lot of stuff looks the 
19 same, but. Let's see. I think that's the bank right here. 
20 And I think that would be the car rental place. So one of 
21 them was behind the car rental place. That was that fence 
22 right there. And then this retaining wall was -- I think it 
23 was -- well, it was somewhere over here. 
24 Q. Okay. 
25 A. Where the bank is. 
689 
 1 Q. All right. And let me ask you this. Would it be 
2 easier to tell on -- 
3 THE WITNESS: Shall I go back up there? 
4 THE COURT: You can step back up. 
5 Q. On government's exhibit 9, do you see -- or State's 
6 Exhibit 9, do you see where it might be? 
7 MR. CRANE: What are we looking for now? 
8 MR. ROGERS: The retaining wall. 
9 A. The retaining wall is right here. I think. 
10 Q. Okay. 
11 A. I think. And that fence I was talking about I think 
12 is -- it's on -- it's one of those two. I think it's that 
13 one right there. 
14 Q. Okay. And so, to put the two together, the fence 
15 would be around here someplace? 
16 A. Yeah. That's correct. 
17 Q. And the retaining wall -- I'm having trouble finding 
18 it. Maybe it's not shown on this picture. 
19 MR. CRANE: You're welcome to just stick with 9, if 
20 you want to. 
21 MR. ROGERS: Well, I want to draw on it, though, and 
22 I would hate to mess up your beautiful exhibit. 
23 MR. CRANE: Yeah, I don't really want the grease 
24 pencil on there too bad. 
25 Q. Okay. Anyway, basically -- 
690 
 1 A. I mean, I can show you if you need me to. 
2 Q. Yes, please. 
3 THE WITNESS: Can I get back down? 
4 THE COURT: You may step down. 
5 A. I think the retaining wall -- well, is this a 
6 recent -- a more recent -- 
7 Q. It's an older picture, I think. 
8 A. It's an older picture? It might not have even been 
9 there then. 
10 Q. Okay. 
11 A. But I think it would have been right there. 
12 Q. Right around here? 
13 A. Yeah. 
14 Q. Okay. So basically what you're remembering at the 
15 time you're talking to Nichols is coming across Providence up 
16 here by Ash, talking to Mallory, and then somehow coming 
17 across this direction? 
18 A. It was a -- it was a thought. It was feasible. I 
19 couldn't really remember which way that I came. And I 
20 remember -- there -- like I said before, there were certain 
21 frames, like if you pause a movie, I would remember. And 
22 other than that, for a long time I couldn't remember anything 
23 other than that. And so when I saw things that looked like 
24 memories that I had that night, I got confused, and I said, 
25 "Well, that might have been in it. I might have gone that 
691 
 1 way." I knew I had seen Dallas at an intersection. I got 
2 confused on that also. 
3 Q. And you'll agree that there was nothing down in this 
4 area that looked familiar, even though Nichols was pointing 
5 it out to you. 
6 A. At the time, no. 
7 Q. Now after doing the little drive-around with 
8 Detective Nichols, you were again interviewed by Detective 
9 Nichols back in the videotape room; right? 
10 A. That's correct. 
11 Q. And you have seen that tape recording of that 
12 interview too, haven't you? 
13 A. Yes, I have. 
14 Q. And you've gone over it with your lawyer. 
15 A. Yes. 
16 Q. And you've gone over it with Mr. Crane. 
17 A. Yes. 
18 Q. Now then -- 
19 MR. CRANE: Judge, we got a juror raising his hand 
20 back there. 
21 JUROR: Judge, we really need to stand a minute and 
22 maybe take a short break, if possible. 
23 THE COURT: I will be glad to do that. Why don't -- 
24 and particularly if you need to take a rest room break or 
25 something like that, why don't we take about a five- or 
692 
 1 ten-minute break and let you go out. And then we'll finish 
2 up with this. 
3 JUROR: Thank you, Judge. 
4 THE COURT: Okay? 
5 Ladies and gentlemen, the Court again reminds you of 
6 what you were told at the first recess of the Court. Until 
7 you retire to consider your verdict, you must not discuss 
8 this case among yourselves or with others, or permit anyone 
9 to discuss it in your hearing. You should not form or 
10 express any opinion about the case until it is finally given 
11 to you to decide. Do not read, view, or listen to any 
12 newspaper, radio, or television report of the trial. 
13 We'll take a really brief recess. And you may be 
14 excused at this time. 
15 JUROR: Thank you, Judge. 
16 THE COURT: Thanks for letting me know. 
17 - - - 
18 The following proceedings were held out of the presence 
19 of the jury: 
20 THE COURT: I don't know if the witness needs to be 
21 excused or not for this brief -- 
22 THE WITNESS: I wouldn't mind taking a break, if you 
23 don't mind. 
24 THE COURT: You may step down. And ask the -- if 
25 this witness needs to be excused also, take a break. You may 
693 
 1 step down. 
2 MR. ROGERS: 22:41 on this one. So we're timing it 
3 pretty well. 
4 THE COURT: I don't know that you'll finish with 
5 your cross-examination. 
6 MR. ROGERS: I will not finish with my cross, but I 
7 can I think finish with his video maybe. 
8 THE COURT: All right. That would be good. 
9 MR. ROGERS: Does that sound like a plan? 
10 THE COURT: That sounds like a good plan. And if 
11 counsel wants to take a brief recess -- 
12 MR. ROGERS: I'm running out there even as we speak. 
13 (Recess taken.) 
14 - - - 
15 The following proceedings were held in the presence of 
16 the jury: 
17 THE COURT: Quiet, please. 
18 You have marked Defendant's D? A video? 
19 MR. ROGERS: That's correct, Your Honor. 
20 THE COURT: And that is offered, is it? 
21 MR. ROGERS: It is now being offered. It's the 
22 interview by Jeff Nichols, of March 10th, 2004, 5 p.m. 
23 Running time: 22 minutes and 41 seconds. 
24 THE COURT: Does the state have an objection? 
25 MR. CRANE: Again, for the record, as long as that's 
694 
 1 the same tape, in it's entirety, that the state tendered to 
2 the defense in discovery, I don't have any objection. 
3 MR. ROGERS: And yes, it is. 
4 THE COURT: Exhibit D will be admitted. 
5 - - - 
6 Defendant's Exhibit D admitted into evidence. 
7 - - - 
8 THE COURT: And assuming that the reporter will not 
9 have to report this, since it is on a DVD. 
10 MR. ROGERS: Right. 
11 THE COURT: Available if need be. 
12 MR. ROGERS: Thank you. 
13 THE COURT: All right. And after this, the 
14 understanding is is that the jury will recess for the evening 
15 and come back tomorrow morning at 8:30 to begin again. Yes? 
16 MR. ROGERS: Fine with me. 
17 THE COURT: All right. You may play it then. 
18 - - - 
19 CHARLES TIMOTHY ERICKSON, 
20 resumed the stand and testified further: 
21 RESUMED CROSS-EXAMINATION 
22 BY MR. ROGERS: 
23 Q. Once again, pay attention, Mr. Erickson. 
24 (Defendant's Exhibit D playing.) 
25 THE COURT: Are there places where there is nothing 
695 
 1 going on? You might move it along. 
2 (Defendant's Exhibit D played.) 
3 MR. ROGERS: That's the end of the tape, Your Honor. 
4 THE COURT: Is that the end of the -- of this? 
5 MR. WEIS: Yes. 
6 THE COURT: Ladies and gentlemen, we will take our 
7 evening recess at this time. 
8 The Court again reminds you of what you were told at 
9 the first recess of the Court. Until you retire to consider 
10 your verdict, you must not discuss this case among yourselves 
11 or with others, or permit anyone to discuss it in your 
12 hearing. You should not form or express any opinion about 
13 the case until it is finally given to you to decide. Do not 
14 read, view, or listen to any newspaper, radio, or television 
15 report of the trial. 
16 We will reconvene in court at 8:30 in the morning. 
17 We'll see you at that time. Have a good supper and a restful 
18 night. 
19 - - - 
20 The following proceedings were held out of the presence 
21 of the jury: 
22 THE COURT: You may step down. 
23 I don't know if we can find -- 
24 THE WITNESS: There's Bill right there. 
25 THE COURT: Kevin? Kevin? 
696 
 1 MR. CRANE: Yes, ma'am. 
2 THE COURT: We need to get a deputy over here for -- 
3 MR. CRANE: Okay. 
4 THE COURT: And we need to make sure that both 
5 Mr. Ferguson and Mr. Erickson are here before 8:30 in the 
6 morning. 
7 MR. HAWES: Yes, Judge. 
8 THE COURT: I don't want them to run into the jury, 
9 and I want them to be available. 
10 MR. HAWES: Yes, Judge. 
11 THE COURT: Okay. Anything further that the state 
12 needs to discuss then this evening? 
13 MR. CRANE: I don't think so. 
14 THE COURT: The defense? Anything further this 
15 evening? 
16 MR. ROGERS: I don't believe so, Your Honor. 
17 THE COURT: All right. We will be in recess. This 
18 courtroom will be locked, so if there's any equipment that 
19 you need to leave here, you may do that. And we'll see you 
20 at 8:30 in the morning then. 
21 Court will be in recess. 
22 (Adjourned for the evening.) 
23 - - - 
24 
25 
697 
 1 P R O C E E D I N G S 
2 October 18, 2005 
3 - - - 
4 The following proceedings were held out of the presence 
5 of the jury: 
6 THE COURT: Case 165368, State of Missouri versus 
7 Ryan William Ferguson. What says the state? 
8 MR. CRANE: Ready, Your Honor. 
9 THE COURT: The defendant? 
10 MR. ROGERS: Ready, Your Honor. 
11 THE COURT: Mr. Crane, we had another case scheduled 
12 for today. 
13 (Matters not pertaining to this case were heard.) 
14 THE COURT: Jury ready then to come in? 
15 DEPUTY COURT MARSHAL BAER: Yes, Judge. 
16 THE COURT: All right. If you would bring the 
17 jurors in, please. 
18 - - - 
19 The following proceedings were held in the presence of 
20 the jury: 
21 THE COURT: Good morning, ladies and gentlemen. I 
22 trust you had a restful evening. I don't know if you were 
23 informed about the Cardinals' good fortune. 
24 JUROR: Yes, we were. 
25 THE COURT: All right. A miracle. In the ninth 
698 
 1 inning. 
2 Anyway, if you would please answer as your names are 
3 called, please. 
4 (Roll call by Eileen Moore, Deputy Clerk.) 
5 THE COURT: The clerk may be excused at this time. 
6 (Clerk excused.) 
7 THE COURT: When we concluded last evening, there 
8 had been a video played. I believe it was Defendant's 
9 Exhibit D. And you may inquire further in cross-examination 
10 of this witness. 
11 MR. ROGERS: Thank you, Your Honor. 
12 - - - 
13 CHARLES TIMOTHY ERICKSON, 
14 resumed the stand and testified further: 
15 RESUMED CROSS-EXAMINATION 
16 BY MR. ROGERS: 
17 Q. Good morning, Mr. Erickson. As the Court has just 
18 reminded us, at the end of yesterday's session we watched the 
19 video of your interrogation by Detective Jeff Nichols; is 
20 that correct? 
21 A. That's correct. 
22 Q. And were you paying attention to that? 
23 THE COURT: Pardon me just a minute. The 
24 microphones are not on. And there is a mic on the bench, 
25 both near you as well as near this witness. If we could turn 
699 
 1 it on, please. 
2 It's on now. All right. 
3 MR. ROGERS: Did anyone have trouble hearing my last 
4 question? 
5 Thank you. 
6 Q. Now, Mr. Erickson, is that videotape from yesterday 
7 afternoon still fresh in your mind? 
8 A. Yes. 
9 Q. We don't need to see it again before we ask you 
10 questions about it. 
11 A. No. 
12 Q. Thank you. First of all, during that videotaped 
13 interrogation, you drew a picture or a diagram of the tire 
14 tool that you said Mr. Ferguson took from his car and handed 
15 to you; is that correct? 
16 A. Yes, I did. 
17 Q. I'm going to show you what has been marked for 
18 identification as State's Exhibit 22. 
19 A. Okay. 
20 Q. You see that? 
21 A. Yeah. 
22 Q. Is that, in fact, at least this drawing here, in the 
23 upper left-hand corner of it, what you drew for Detective 
24 Nichols on March 10th, 2004? 
25 A. That's correct, yes. 
700 
 1 MR. ROGERS: Your Honor, at this time I would move 
2 the admission of State's Exhibit 22. And -- 
3 MR. CRANE: I meant to ask the witness about it when 
4 I had him. I don't have any objections to it. 
5 THE COURT: State's Exhibit 22 is admitted. 
6 - - - 
7 State's Exhibit 22 admitted into evidence. 
8 - - - 
9 MR. ROGERS: And ask permission to publish it. 
10 THE COURT: As long as you are publishing it through 
11 a video means. If we have individual copies, we have to have 
12 enough for each of the jurors. But if you're publishing it 
13 on a video display, that's fine. 
14 MR. CRANE: Yeah. You know, this is the thing that 
15 works better with that -- dimming the lights on. Here, 
16 I'll -- is that okay, Judge? 
17 THE COURT: Yes. You may turn them off -- dim them 
18 somewhat, if it... 
19 (Lights dimmed.) 
20 Q. Mr. Erickson, is that what you drew? 
21 A. Yes. 
22 Q. And the notation over here, "18-24 inches," was 
23 written by Mr. Nichols? 
24 A. Yeah. That's correct. 
25 Q. And you saw, on the videotape, how you showed how 
701 
 1 long you thought it was, and he moved up to you and moved 
2 your hands out a little bit and then told you, was that 18 to 
3 24 inches? Right? 
4 A. I don't know. 
5 Q. Okay. You don't know whether that happened on the 
6 videotape? 
7 A. I can't remember, no. 
8 Q. But you do remember agreeing with him, saying that 
9 it was 18 to 24 inches. 
10 A. Yeah. It was -- I can't do it now, but it was 
11 somewhere in that neighborhood. 
12 Q. All right. 
13 A. I mean, that's an estimate. I'm not sure how long 
14 exactly it was. 
15 Q. And you told us yesterday, I think, that you had 
16 taken an attachment off of this tool? 
17 A. Yeah. Yes, I did. 
18 Q. And was that down at this end? 
19 A. No. Basically I was having problems. I couldn't -- 
20 I knew that there was something on the end of it. On the top 
21 part. The part that I -- I used to strike the victim with. 
22 And I couldn't remember exactly what was -- what was on 
23 there. I was having -- I was having problems remembering 
24 that. And that was -- that was what I thought at the time 
25 that might have been there, but I was wrong. 
702 
 1 Q. So is the attachment that you took off down at this 
2 end, where you've drawn the crook? 
3 A. Yeah. 
4 Q. And that was your best memory as of March 10th, when 
5 you were telling Detective Nichols, of what this looked like. 
6 A. Yeah, that was a possibility, yeah. 
7 Q. A possibility. 
8 A. Yeah. 
9 Q. So you were not -- 
10 A. I mean -- 
11 Q. -- certain? 
12 A. I wasn't certain, yeah, that's correct. I wasn't 
13 certain. 
14 Q. Because you were not certain on March 10th, talking 
15 to Detective Nichols, that you were even there; right? 
16 A. On some level I was certain, but. 
17 Q. And on that level, were you certain this is what it 
18 looked like? 
19 A. No. 
20 Q. That's what you drew for him. 
21 A. Yeah. 
22 THE COURT: Are you going to be using the video for 
23 any other exhibits at this point? 
24 MR. ROGERS: I don't believe so, Your Honor. 
25 THE COURT: We can turn the -- if we can turn the 
703 
 1 lights back on then. Don't want anyone falling asleep. 
2 MR. ROGERS: Especially not me. 
3 THE COURT: Well, hopefully that wouldn't happen, 
4 sir. 
5 Q. It's fair to say, Mr. Erickson, that several times 
6 during your interview with Detective Nichols, you attempted 
7 to tell him that you were not sure that you had been involved 
8 in the death of Mr. Heitholt. Isn't that correct? 
9 A. That's correct. 
10 Q. And, in fact, towards the beginning of the 
11 interview, he told you what Ryan Ferguson had told the police 
12 that same day. 
13 A. That's correct. 
14 Q. And what Ryan told the police, paraphrasing what 
15 Mr. Nichols told you, was: "I didn't do it. I didn't -- I 
16 wasn't there. And if Chuck says I did, he must be crazy." 
17 A. Yeah. That didn't change my memory, though. 
18 Q. Okay. Well, that's what Mr. Nichols told you. And 
19 your response to that was: "Well, I don't know," wasn't it? 
20 A. There was a lot that I didn't want to accept at that 
21 point. The more I accepted, the more I remembered; the 
22 bigger the price I had to pay; the higher the cost. 
23 Q. Did you hear the question? 
24 A. Yeah. I just answered you. 
25 Q. The question was: Your response to that statement 
704 
 1 by Detective Nichols, about what Ryan Ferguson had said, was 
2 "I don't know," wasn't it? 
3 A. Yeah. 
4 Q. And when you said that, you meant to convey that you 
5 did not know whether you were being accurate in what you 
6 were -- what you had told Detective Short earlier and 
7 Detective Nichols earlier during the drive around the 
8 neighborhood. 
9 A. Yeah, I knew some things were accurate. I wasn't 
10 certain that everything was accurate. 
11 Q. But what you said "I don't know" in response to was 
12 the statement that Ryan Ferguson wasn't there, had nothing to 
13 do with it, and if you're accusing him, you must be crazy. 
14 Right? 
15 A. No. I don't know. 
16 Q. That's not what you said "I don't know" in response 
17 to? 
18 A. I'm not sure. 
19 MR. ROGERS: Would you, Mr. Weis, play the segment 
20 "I don't know." 
21 MR. WEIS: Which one? 
22 MR. ROGERS: "I don't know." 
23 (Excerpt played.) 
24 Q. Do you remember saying that? 
25 MR. CRANE: Well, whoa, wait -- 
705 
 1 A. I mean -- 
2 MR. CRANE: -- what was the question? Where are we 
3 at there? 
4 MR. ROGERS: Could you back that up maybe about 30 
5 seconds? 
6 MR. WEIS: No. 
7 MR. ROGERS: Okay. 
8 MR. CRANE: All right. Well, I guess I'll withdraw 
9 my objection. He said, "I don't know." 
10 Q. Well, let me ask you this. 
11 A. I don't know what was said before that. I mean -- 
12 Q. You don't know what was said before that. Would you 
13 dispute that the question was: "Okay. I wanted to start off 
14 by just telling you a little bit about what -- what I've 
15 learned. And that is that, you know, the officers, they've 
16 gone to Kansas City, and they've gotten in touch with Ryan. 
17 And to make a long story short, Ryan is saying, 'I don't know 
18 anything; wasn't there. I don't know what Chuck's talking 
19 about. He's crazy. You know, if it happened, if it went 
20 down the way he said, obviously he did it himself.' And 
21 pretty much that's what's happening." 
22 Now, that's what's said by Detective Nichols. And 
23 then you have the response that we just saw. "I mean" -- 
24 A. Not that -- I said "I don't know" after that? 
25 Q. Right. 
706 
 1 A. I don't know what I meant by that. Honestly. I was 
2 just -- I mean -- 
3 Q. Well, after -- 
4 A. I really thought I had done this. And I knew that 
5 if I did it, he was with me. And he's sitting here denying 
6 it. Then I didn't really know what to think at that point. 
7 And I was just -- like I said, I was -- I was unsure, I was 
8 hesitant, and I didn't want to accept what I had done. 
9 Q. And Detective Nichols then went on to talk to you 
10 about Ryan's denial, didn't he? 
11 A. Yes. 
12 Q. And then you again said to Detective Nichols, "I 
13 don't know. I mean, I don't even -- it's just so foggy. 
14 Like, I could just be sitting here and fabricating all of it 
15 and not know. Like, I don't know. I don't." Do you 
16 remember saying that? 
17 A. Yeah. 
18 Q. Do you remember seeing yourself say that on the 
19 video yesterday? 
20 A. Yes. 
21 Q. And there's no question that what you were trying to 
22 tell Detective Nichols is that you didn't know at that point 
23 whether you had participated in the Heitholt homicide or not; 
24 correct? Isn't that what you were trying to say? 
25 A. Yes. 
707 
 1 Q. And you told him even that you might be sitting 
2 there fabricating it; right? 
3 A. Yeah. That's what I was hoping. 
4 Q. And by "fabricating," you mean making it up. 
5 A. That's what I was hoping, yes. 
6 Q. And you were hoping that. 
7 A. Yes, I was. 
8 Q. And you were hoping that that was what was really 
9 going on. 
10 A. Yeah. That's correct. I was hoping that. 
11 Q. And then he tried to tell you, "Oh, you can't be 
12 fabricating it, because you've told us things that only 
13 somebody who was there would know." Right? 
14 A. Yeah. I believe he said something like that. 
15 Q. And your response to him was: "Hey, I read about 
16 all this stuff in the paper." 
17 MR. CRANE: Well, I'm going to object to that. What 
18 section are you talking about where he says "all this stuff 
19 in the paper"? 
20 MR. ROGERS: I'm not -- that's a paraphrase. 
21 MR. CRANE: Okay. If you're going to -- Judge, I 
22 would ask, if he's going to paraphrase, that he indicate 
23 that, because he's -- he's got a record. They gave me a 
24 transcript of it yesterday. And appropriate impeachment 
25 would be that he not paraphrase, because that's the 
708 
 1 indication. He was indicating that that's what the witness 
2 said on the video. And the witness is trying to remember, 
3 after seeing it yesterday, what he said on the video. I 
4 think. But if he paraphrases and represents that it's from 
5 the transcript or the video, I don't think that's fair. 
6 MR. ROGERS: I was not making that representation, 
7 Judge, and I'm happy to make it clear that I was not making 
8 that representation, and I will, in fact, quote directly. 
9 Q. And my question will be: Do you remember saying 
10 that during the videotaped interview of -- by Detective 
11 Nichols? Detective Nichols asked you: "This is -- all 
12 right. This is after reading the newspaper article in 
13 October." And you say, "Uh-huh." Do you remember that? 
14 A. Yeah. 
15 Q. And then he says -- excuse me. I'm sorry. This is 
16 you, saying to Detective Nichols -- I'm getting my Qs and As. 
17 Detective Nichols' question: "And my understanding is -- and 
18 I'm just going to try to briefly explain to you what my 
19 understanding is, is that you guys needed money." And then 
20 you say to Detective Nichols, "This is -- all right. This is 
21 after reading the newspaper article in October." And he 
22 says, "Uh-huh." Does that sound better? 
23 A. Yeah. I was more or less explaining everything. It 
24 wasn't just that. I was trying to -- I mean, I wanted to -- 
25 I wanted to explain it, and I wanted to try to remember it, 
709 
 1 but -- I mean, I'm trying to explain my response, so if 
2 you'll just hold on a second. But at the same time, I didn't 
3 want to. I didn't want to take that leap. I didn't want to 
4 sacrifice all that I had. I didn't want to go to prison for 
5 the rest of my life. 
6 Q. But what you said to Detective Nichols in the 
7 videotape is: "And this is kind of put together with -- I 
8 mean, I don't know if I'm just flipping out or whatever." 
9 A. Yeah, but I also said that I was -- 
10 Q. Excuse me. I'm not done yet. 
11 MR. CRANE: Can you tell me where you're at? 
12 MR. ROGERS: I'm on page 5, beginning at line 14. 
13 Q. "And this is kind of put together with -- I mean, I 
14 don't know if I'm just flipping out or whatever. But, I 
15 mean, this is kind of what I put together with what could 
16 have happened. I remember we were at the club. We ran out 
17 of money. Like, he'd been asking his sister to borrow money. 
18 And from there on, I'm just kind of presuming what happened. 
19 I'm making presumptions based on what I read in the 
20 newspaper." Do you remember saying that? 
21 A. Yes, I do. 
22 Q. And that was an accurate description of what was 
23 going on in your mind at the time you were talking to 
24 Nichols, wasn't it? 
25 A. Not completely, no. 
710 
 1 Q. So you were lying to Nichols. 
2 A. I wasn't lying, but I was worried about myself also. 
3 Q. And so you're trying to deflect responsibility from 
4 yourself by trying to sound like you read everything in the 
5 newspaper? Is that what you're telling us? 
6 A. What I was saying was: I was still unsure about it. 
7 And that was one possibility that had crossed my mind, and 
8 that was something that I was hoping had happened. 
9 Q. So you were trying to tell Detective Nichols: "I'm 
10 not sure. I could be making this all up. I read all this 
11 stuff in the newspaper, you know. The part I remember is 
12 being at the club with Ryan." Is that the gist of what you 
13 were trying to convey to Nichols? 
14 A. I don't know. I'm not sure. 
15 Q. Okay. 
16 A. I mean, not -- not completely. Not as far as you're 
17 taking it, no. 
18 Q. Well -- 
19 MR. ROGERS: Could you play the part marked 
20 "newspaper"? 
21 (Excerpt played.) 
22 Q. Do you remember it? 
23 A. Yeah, I remember saying that -- 
24 Q. Okay. 
25 A. -- but I'm saying, I don't think that was an 
711 
 1 accurate description of what was going on in my mind at the 
2 time. I -- I was backing off a little bit once I realized 
3 how serious the situation was. I'm -- do you understand? 
4 Q. Claiming you didn't realize how serious the 
5 situation was before then. 
6 A. Well, I did, but it took a little while to kick in. 
7 I mean, one -- at one time I'm sitting here telling a friend 
8 that I think I may have done something, and the next thing I 
9 know I'm sitting in the police station. And I'm -- I don't 
10 know. Maybe if you had been through something like this, you 
11 would understand where I'm coming from. 
12 Q. Well, we'll go on and talk about that, because 
13 that's when Detective Nichols tells you: "Well, you're 
14 making accurate presumptions that, like I said, you would 
15 only know if you were there." Do you remember him telling 
16 you that? 
17 A. Yes. 
18 Q. And you asked him: "Like what? The lady, the 
19 cleaning lady?" 
20 A. Yeah. 
21 Q. Do you remember that? And he said, "That's one." 
22 Correct? 
23 A. That's correct. 
24 Q. And you said, "That was in the newspaper." 
25 A. But that wasn't in the newspaper. 
712 
 1 Q. Was? 
2 A. Was not. 
3 Q. Was not. 
4 A. No. In the newspaper it said I believe a janitor 
5 cleaning lady went to go get help. It didn't say anything 
6 about one of the suspects told the cleaning lady to go get 
7 help. That was never in the newspaper. 
8 Q. We'll see what was in the newspaper, but -- 
9 A. Okay. 
10 Q. What you told him was, "That was in the newspaper," 
11 isn't it? 
12 A. I -- I thought it may have been, I was hoping it may 
13 have been, because at that point, if it was in the newspaper, 
14 then there was a possibility that I was just fabricating 
15 this; that I was just, you know, reading about this and just 
16 thinking I may have done it. But if it wasn't in the 
17 newspaper, then how would I know that someone told the 
18 cleaning lady to go get help? 
19 Q. Well, that's what he asked you, wasn't it? 
20 A. Exactly. 
21 Q. And he said, "Well, no. About what was specifically 
22 said to that lady." And your answer was, "She went to get 
23 help? I mean." Isn't that right? 
24 A. I -- I don't know. You can replay it if you want. 
25 MR. ROGERS: Can you play the cleaning lady part, 
713 
 1 Mr. Weis? "Cleaning lady." 
2 (Excerpt played.) 
3 MR. CRANE: Wait. Can we keep going? 
4 MR. WEIS: Sure. Can you tell me where that begins 
5 and ends? And then I can show it. 
6 MR. CRANE: Well, I guess I can do it when I'm -- 
7 forget it. You do what you want. I can run that by later. 
8 MR. ROGERS: Go ahead and play the next part. 
9 MR. WEIS: Tell me where it begins and ends, because 
10 I don't have that sheet. 
11 MR. ROGERS: It's on page 7 -- 
12 MR. WEIS: No. I need the time stamp, which is on 
13 your sheet. 
14 MR. ROGERS: Oh. Okay. 
15 Start at 906. 
16 (Excerpt played.) 
17 MR. ROGERS: Stop there. Stop there. 
18 Q. All right. So once again, you're trying to explain 
19 to Mr. Nichols that, "Look, I'm just here trying to come up 
20 with something that I can -- think I remember based on what I 
21 read." Correct? Isn't that what you're telling him? 
22 MR. CRANE: I'm going to object, Judge. That's not 
23 what he said. He said, "I mean, you understand, like, I 
24 wouldn't be here if I didn't feel guilty about it." That was 
25 his response. I mean -- 
714 
 1 Q. The whole response, and we can play it again a 
2 zillion times, but your whole response was: "I mean, you 
3 understand, like, I wouldn't be here if I didn't feel guilty 
4 about it. But it's just I don't -- I can't recollect." 
5 A. Yeah. 
6 Q. "I mean, it's just a trip for me to have to sit here 
7 and try to look at something that happened that I read about 
8 and try to base what I remember off of that, you know? It's 
9 a mind fuck, you know." 
10 A. That's what I said, yeah. I said -- I explained to 
11 him that I was having trouble with my memories, and that was 
12 the reason I looked in the newspaper, and I had to make some 
13 presumptions off of what I read in the newspaper, to help 
14 deal with the memories that I had and to help piece things 
15 together that I couldn't remember. And I've explained that 
16 over and over. 
17 Q. And so are you telling us now that your memories are 
18 also based on things you have read? 
19 A. No, they're not. 
20 Q. Okay. But at that time, what you thought were your 
21 memories were presumptions -- 
22 A. No, I wasn't. I was making presumptions. But I 
23 never said they were my memories. I asked him questions. I 
24 said, "Well, could this have happened?" And -- well -- I 
25 never -- I never used a presumption or I never used something 
715 
 1 I read in the newspaper and turned it into a memory. 
2 Q. Well, you told him that you had read in the 
3 newspaper about the cleaning lady, and that you had told 
4 Short that you remembered the cleaning lady. Right? 
5 A. I told them I told the cleaning lady to go get help. 
6 I didn't read that a cleaning lady was told to go get help in 
7 the newspaper. So yeah, I read something about a cleaning 
8 lady or janitor going to get help. I'll admit to that. But 
9 I never read anything about one of the suspects telling the 
10 cleaning lady or janitor to go get help. 
11 Q. Let me ask you this. You were doing your best at 
12 that time to express to Detective Nichols your uncertainty as 
13 to the accuracy of what you thought you might remember; is 
14 that a fair statement? 
15 A. No. 
16 Q. Okay. That's not a fair statement. 
17 A. No. 
18 Q. You were expressing to Detective Nichols your 
19 uncertainty as to the accuracy of what you had been talking 
20 about. Is that a fair statement? 
21 A. I suppose so, yes. 
22 Q. All right. You were, in fact, uncertain at that 
23 time, when you were talking to Detective Nichols on the 
24 videotape. 
25 A. On a certain level I was uncertain. On a certain 
716 
 1 level I knew that I had done it. 
2 Q. All right. On the conscious level with which you 
3 were talking to Detective Nichols, your conscious mind, you 
4 were uncertain as to whether or not you had been involved in 
5 the death of Kent Heitholt; isn't that true? 
6 A. Yeah. I'd say so. I was -- I was hoping that I 
7 hadn't. 
8 Q. And when you expressed that uncertainty to Detective 
9 Nichols, you remember what he did. 
10 A. I think he got rather irate actually. I can't -- I 
11 can't recall accurately. 
12 Q. Do you remember seeing it on the video yesterday? 
13 A. Yeah. Yeah, I think so. 
14 Q. He moved his chair right up next to you. 
15 A. Yeah. 
16 Q. You're backed into the corner. 
17 A. Uh-huh. 
18 Q. He gets in your face. He starts pointing his hands 
19 at you. 
20 A. Yeah. 
21 Q. Starts yelling at you. 
22 A. Uh-huh. 
23 Q. Correct? 
24 A. Yeah. And I didn't say anything that I hadn't said 
25 before. 
717 
 1 Q. You didn't say anything. He told you, "Shut up and 
2 listen to me. I'll do the talking." 
3 A. I'm saying after that. I didn't say anything I 
4 hadn't said before. It's not like he coerced me. It's not 
5 like he scared me into saying, "Oh, well, we did this." I 
6 said everything I said to him before. I said it to other 
7 people. 
8 Q. What he told you was: That you, if you continued to 
9 express uncertainty, would be the one hanging out. Right? 
10 A. Yes, he did. 
11 Q. And that the only way that you would not be the one 
12 hanging out is if you quit expressing uncertainty and 
13 addressed more certainty that Ryan had done it. Isn't that 
14 true? 
15 A. He said something to that effect. It was more just 
16 that I needed to -- I needed to stop saying that "I believe 
17 so" and that "Well, to the best of my knowledge" and things 
18 like that. I needed to be more concise in my wording, was 
19 what some of it was. But also, yeah, I needed to -- I needed 
20 to stop -- stop -- stop hoping and stop dreaming and stop 
21 wishing that I hadn't done this and I needed to man up to 
22 what I did and I needed to take responsibility for what I did 
23 and I needed to acknowledge that. And that I think was part 
24 of the point he was trying to get across also. 
25 Q. But he didn't talk anything about you accepting 
718 
 1 responsibility. He talked about blaming Ryan, didn't he? 
2 A. I think he said something about both of us. 
3 Q. What he said was, beginning on line 16, page 7, 
4 "Well" -- excuse me. Line 16. "And I don't want to hear, 
5 'Oh, all of a sudden I just think I maybe fabricated all of 
6 this.'" Do you remember that on the videotape? 
7 A. Yeah. 
8 Q. When he makes his voice sound a little wimpy and 
9 whiny? 
10 A. Uh-huh. 
11 Q. Correct? 
12 A. Yeah. 
13 Q. As opposed to the command voice he's using in the 
14 rest of that particular segment -- 
15 A. Yeah. 
16 Q. -- correct? 
17 A. Yeah. 
18 Q. And then your answer is: "Well" -- and you were 
19 trying to, again, to say, "Wait a minute. That's what I 
20 really think." Correct? But he doesn't let you say that. 
21 A. I don't -- I don't know what I was going to say. 
22 Q. Then he says, "No. What I want to hear is exactly 
23 what Ryan told you, because that's what's going to keep you 
24 in a position to where you are not going to be the sole 
25 individual out here responsible for what happened to Kent," 
719 
 1 didn't he? 
2 A. Yeah, he said that. 
3 Q. And you said, "Okay." Correct? 
4 A. And I said, "Okay," yeah. 
5 Q. And at that point, in your mind, you had no way out, 
6 did you? 
7 A. No way out? What do you mean? I mean, I was taking 
8 responsibility for what I did. I can't make him take 
9 responsibility for what he did. I can only take 
10 responsibility for what I did. That's all I can do. And you 
11 know what? When I go home, when I go look at myself in the 
12 mirror, when I lay down in my bunk, I'm going to know that I 
13 did the right thing, no matter -- regardless of what happens 
14 to him after he leaves. What happens -- I could care less 
15 about what happens to him. I'm just doing this because I 
16 know it's the right thing to do. 
17 Q. You done? 
18 A. Yeah. 
19 Q. What was my question? 
20 A. I don't remember. 
21 Q. Didn't answer it either, did you? 
22 A. The answer was no, by the way. 
23 Q. At the time that -- 
24 A. No, I didn't -- I didn't think that I was stuck. I 
25 didn't think that -- that -- that I was, you know, screwed. 
720 
 1 Q. You didn't think, Hey, you know, I said some stuff 
2 to some friends of mine, and the police got word of it, and 
3 they came and arrested me, and I tried to tell them as best I 
4 could what I remembered, what I didn't remember, how vague it 
5 was, and they didn't want to hear that, and now I'm in a 
6 situation where I'm either going to have to be real certain 
7 and real specific about -- 
8 A. It wasn't -- 
9 Q. -- Ryan's involvement, or else I'll be the only 
10 person hanging out. 
11 A. Like I said, I didn't think I was stuck. You know. 
12 It is what it -- it was what it was. My life wasn't over. I 
13 still had time to -- time to consider what happened. It's 
14 not -- it doesn't mean life stops just because I did 
15 something horrible. 
16 Q. Did you believe that, at that point in the 
17 interrogation with Detective Nichols, you could tell the 
18 police, "Look, I'm not sure we did this," and they would 
19 check into it and find out whatever they could and -- 
20 A. Yeah. That's -- 
21 Q. -- act accordingly? 
22 A. That's -- I was asking them questions also, because 
23 I couldn't -- there were some things I couldn't remember. 
24 And yeah, I was in denial and I was hesitant about accepting 
25 what I had done. So, yeah. I -- that's why I willingly went 
721 
 1 to the police station and I was talking to them. 
2 Q. But you had tried during the interview with 
3 Detective Nichols to tell him exactly that. "I'm not sure 
4 about it." And the response was him getting up in your face 
5 and waiving his hand in your face and yelling at you and 
6 telling you, "I don't want to hear any of this 'Maybe I just 
7 fabricated it.'" Right? 
8 A. Yeah, that was his response. 
9 Q. And you knew that he was not going to listen to any 
10 uncertainty, didn't you? 
11 A. I don't know. 
12 Q. And you accepted -- 
13 A. I mean -- 
14 Q. -- his representation that he -- the only way for 
15 you to not be the only person hanging out was to blame things 
16 on Ryan, didn't you? 
17 A. No, that's not true. I knew I could have stopped 
18 talking whenever I wanted to. I was just taking 
19 responsibility for what I did. I was trying to portray the 
20 truth as well as I could. 
21 Q. So when he -- 
22 A. And I didn't say anything -- I didn't say anything 
23 different after he said that to me than I did before he said 
24 that to me. And if you saw in the video, he didn't scare me 
25 at all. Did you see me back up or flinch one time in that 
722 
 1 video? I was listening to what he had to say, but he didn't 
2 scare me. I -- I could have told him, "You know what? Screw 
3 you. I'm not saying a damn thing to anyone." But I wanted 
4 to talk to him, because I knew it was the right thing to do. 
5 And if I -- 
6 Q. Here's my question. 
7 A. I heard your question, and I just answered it. 
8 Q. Here's my question. 
9 MR. CRANE: No, you can't -- just answer the 
10 question. 
11 THE WITNESS: All right. 
12 Q. When he told you, "No. What I want to hear is 
13 exactly what Ryan told you, because that's what's going to 
14 keep you in a position to where you're not going to be the 
15 sole individual out here responsible for what happened to 
16 Kent," did you believe him or disbelieve him? 
17 A. I don't know what I thought. 
18 Q. You believed him, didn't you? 
19 A. I don't know. 
20 Q. You said, "Okay," didn't you? 
21 A. I just wanted him to stop rambling, honestly. I 
22 wasn't going to tell him anything different from what I told 
23 him before. I said "Okay," but I don't know -- I mean, that 
24 doesn't necessarily mean that I thought he was right. It was 
25 just "okay," like you're talking to me now. "Okay." You 
723 
 1 know. "End of conversation. Whatever gets you to be quiet." 
2 Q. So your answers today are whatever gets me to be 
3 quiet? 
4 A. No, that's not true. 
5 Q. So far it's not working. 
6 A. Well, it's -- to a certain extent. I mean, when you 
7 go on with, you know, snakey and devious ways and things like 
8 that, you know, I mean, I'm going to do my best to just tell 
9 you the truth. And then when you go off on some rant about 
10 something that's -- has nothing to do with the truth, you 
11 know, what else can I say but "okay"? 
12 Q. Well, the truth is that you tried to tell Detective 
13 Nichols you weren't sure. That you might be fabricating it 
14 and you might make it up. Were making it up. And then is 
15 when he yelled at you and got in your face. And then is when 
16 you started responding like a recruit response to the drill 
17 sergeant: Yes, sir, yes, sir, yes, sir. Right? Isn't that 
18 what happened? Isn't that the truth? 
19 A. Yeah, I believe so, yes. 
20 Q. Is that snakey and devious, or is that on the TV? 
21 A. No, that was on the TV. 
22 Q. Now, your testimony yesterday was that you remember 
23 striking Kent Heitholt several times. 
24 A. Uh-huh. 
25 Q. That -- 
724 
 1 THE COURT: Excuse me. You're going to have to say 
2 yes or no. 
3 A. Yes. Yes. 
4 Q. You remember striking him after several other blows, 
5 at a time that he goes to his knees; correct? 
6 A. Yes. 
7 Q. That you remember him moaning. Making a noise. 
8 A. Yes. 
9 Q. And that at that point you remember striking him one 
10 more time. 
11 A. Yes. 
12 Q. And that you remember then feeling sick, going to 
13 sit down, and you think you threw up. Is that correct? 
14 A. No. At the time I thought I had, but right now, no, 
15 I don't think that I threw up there. 
16 Q. Right now you don't think you threw up. 
17 A. That's correct. 
18 Q. All right. But the rest of it is what you told us 
19 yesterday. 
20 A. Yes. 
21 Q. But when you're talking to Detective Nichols on the 
22 videotape, you tell him you only remember striking Heitholt 
23 once, don't you? 
24 A. Yes. 
25 Q. And you tell him that that's the time when he made 
725 
 1 the moan. Correct? 
2 A. Yeah. 
3 Q. And that that's the time -- the last time you 
4 remember hitting him. 
5 A. Yes. 
6 Q. And that that's actually the first blow you struck. 
7 A. I thought it was the first blow I struck, because I 
8 didn't remember what happened before that. 
9 Q. Okay. So what you're telling us now is: There's 
10 all kinds of things, all kinds of blows by you, struck at 
11 Mr. Heitholt, and you demonstrated on Mr. Crane how you did 
12 it. 
13 A. Yes. 
14 Q. And you remember all those now, and then you 
15 remember the next to the last time you hit him was when he 
16 went to his knees and made the groaning sound. Correct? 
17 A. Yes. 
18 MR. CRANE: Well, then, that mischaracterizes the 
19 testimony. I don't think the witness testified that he went 
20 to his knees and made the groan sound. Unless I'm mistaken. 
21 It was after one of the blows. 
22 MR. ROGERS: Well -- 
23 A. He moaned and then went to his knees. After my 
24 second to the last blow. 
25 Q. Right. He went -- he moaned and went to his knees 
726 
 1 after your second to the last blow; correct? 
2 A. Yes. 
3 Q. That's what you told us yesterday. 
4 A. Yes. 
5 Q. That's what I've asked you, this is probably the 
6 third time this morning; right? 
7 A. Yes. 
8 Q. Okay. But when you were talking to Detective 
9 Nichols, you -- and when you were confronted and earlier when 
10 you were talking with Detective Short and were confronted 
11 with the notion that there was more than one blow struck, you 
12 asserted the position that you remembered striking the first 
13 blow, which is the blow when he moaned, and that after that 
14 you blacked out and didn't remember what happened. Is that 
15 true? 
16 A. I'm not sure. 
17 MR. ROGERS: Play the one marked "assumed." 
18 (Excerpt played.) 
19 MR. ROGERS: That's enough. 
20 A. Yeah, I did say that. 
21 Q. So that's what you told him -- 
22 A. Yes. 
23 Q. -- was that you had hit him the one time, and then 
24 blacked out, and you were just assuming that you must have 
25 hit him more times. 
727 
 1 A. Yeah, I told him that. 
2 Q. Okay. And you were assuming that based upon what 
3 Short had told you about the number of blows. 
4 A. Yes. 
5 Q. Now, did you tell him that -- him, Mr. Nichols -- 
6 that Ryan had held Mr. Heitholt while you were hitting him? 
7 A. I don't remember if I said that or not. 
8 Q. Okay. 
9 A. I don't believe I ever said that. 
10 Q. And as a matter of fact, you didn't tell us anything 
11 about that yesterday. 
12 A. No. 
13 Q. And as you claim to remember, or believe that you 
14 remember, or whatever the state of your mind is, you're not 
15 asserting any memory that Ryan Ferguson ever held Kent 
16 Heitholt while you hit him with the tire iron. 
17 A. That's correct. 
18 Q. Now -- back to the subject of vomit. Throwing up. 
19 A. Uh-huh. 
20 Q. You had told Detective Nichols, in your first 
21 interview with him, the one that was not recorded -- 
22 A. Detective Short? 
23 Q. Detective Short. I'm sorry. Thank you. You had 
24 told him that you had thrown up there at the scene, in the 
25 parking lot of the Tribune building. 
728 
 1 A. Yeah. I told him I thought that I had thrown up at 
2 the scene. 
3 Q. And you told him that again at the -- in the 
4 videotaped interview with Detective Short. 
5 A. I believe so, yes. 
6 Q. And then Detective Nichols and you talked about it 
7 in that videotaped interview that we saw the end of 
8 yesterday. Correct? 
9 A. I can't recall. 
10 Q. Okay. Let me go back a step. When you told 
11 Detective Short about it during the videotape interview, you 
12 actually even asked him, "Was there vomit found there"; 
13 right? 
14 A. Yes. 
15 Q. And he didn't tell you, did he? 
16 A. I can't remember if he told me or not. I think the 
17 second time he said, "No, there wasn't." The first time -- 
18 the first time I think he said something to the effect of, 
19 "Well, I'm holding my cards back," or something like that. 
20 Q. Playing poker. 
21 A. Yeah. Yeah. 
22 Q. But when you were talking to Detective Nichols 
23 afterwards, you told him, page 18, beginning line 19, 
24 "Because I remember vomiting. Like, I'm pretty sure that I 
25 did. And I thought that that was when that happened. And 
729 
 1 then I looked up." And he said, "But earlier you said you 
2 don't remember if you vomited -- you remember getting sick, 
3 but you don't remember if you vomited there or vomited 
4 somewhere else." And then your answer was, "I assumed I did 
5 there." Correct? 
6 A. Yeah, I did say that, because I thought -- I 
7 remember feeling sick, and I thought that, yeah, that I 
8 had -- I had thrown up there. 
9 Q. And you remember vomiting somewhere. 
10 A. Yes. That's correct. 
11 Q. And you remember vomiting somewhere that night. 
12 A. Yes. Either during or after the robbery. 
13 Q. And your belief was that you did it right there at 
14 the scene, before you look up and see Ryan, you say, standing 
15 over or crouching over Mr. Heitholt. 
16 A. Yeah, I thought that I had, because I felt sick. 
17 Q. Now, this all happened on March the 10th, 2004. 
18 These videos we've talked about. 
19 A. Uh-huh. 
20 Q. Correct? 
21 A. Yeah. Yeah. 
22 Q. And after that, you did not talk with police or 
23 prosecutors for several months. 
24 A. That's correct. Until October, I believe. 
25 Q. And during those months, your attorney provided you 
730 
 1 with copies of the police reports. 
2 A. That's correct. 
3 Q. Your attorney got copies of the videotapes. 
4 A. Yes. 
5 Q. Your attorney went over the videotapes with you. 
6 A. I'm not sure if it was before or after October. I 
7 can't remember when that was exactly. 
8 Q. But he did. 
9 A. Yeah. 
10 Q. And you were eager to see the videotapes. 
11 A. I was -- I don't know if I was eager to see the 
12 videotapes. 
13 Q. You also -- 
14 A. My attorney advised me that I should look at the 
15 videotapes. And so I said, "Okay. I'm going to do what 
16 you're telling me to do because you're the professional." 
17 But I wasn't exactly eager to see the videotapes. 
18 Q. And your attorney also went over with you the police 
19 reports of the physical evidence that had been found. 
20 A. I'm not sure if we did that or not. 
21 Q. Your attorney went with -- over with you -- 
22 A. He -- I -- I believe he mailed some stuff to me, 
23 regarding the DNA and whatnot, but I don't think that I 
24 actually went over any of the paperwork regarding the 
25 physical evidence that was found. 
731 
 1 Q. Okay. You and I may be using the term differently. 
2 Your attorney went over with you the fact that, the night of 
3 the homicide, the police were able to follow a partial trail 
4 of blood which fluoresced with luminol. Correct? From the 
5 crime scene? 
6 A. I know I read that in the police reports. I can't 
7 remember if I went over it with my attorney or not. 
8 Q. You certainly read it in the police reports. 
9 A. Yeah. Yes, I did. 
10 Q. And you read in the police reports that that trail 
11 went east -- 
12 THE COURT: Are you able to see it from there? 
13 THE WITNESS: No, I can't see that. 
14 MR. ROGERS: Okay. I'll make it better. 
15 Q. Can you see it now? 
16 A. Yeah, I can see it. It's fine. Don't worry about 
17 it. I was going to say, I could get down if you need me to 
18 point something out. 
19 Q. That's fine. I'll use the laser pointer, now that I 
20 figured out how to turn it on. 
21 You read in the police reports that this luminol 
22 trail went east up the alley from the parking lot, south on 
23 Fourth Street, towards Broadway; correct? 
24 A. Yeah. Yes. 
25 Q. And you read that between March the 10th, when you 
732 
 1 told the detectives about going the way that's marked in 
2 orange here; right? 
3 A. Yeah. That wasn't the -- just for the record, I 
4 mean, that wasn't -- that wasn't the only way that I told 
5 them I might have gone. 
6 Q. Okay. We saw the video when you're driving around 
7 and you say, "Well, it's possible," when Detective Short is 
8 taking you down this way; correct? 
9 A. I don't know if I said that either. I know I said 
10 that it's -- that I thought we'd gone behind the Tribune 
11 building, but I -- I mean -- 
12 Q. So what you were telling him was possible is that 
13 you could have gone around this way and back this way. 
14 A. I'm not -- I'm not sure. Like I said, I mean, I was 
15 having -- when we left the scene, it was all -- it was too 
16 fast. We were running. I was -- I was getting memories 
17 mixed up. 
18 Q. My question -- 
19 A. I was doing my best to, yeah, on the video, to tell 
20 them what route we had taken when we left, yes. 
21 Q. And what you had initially said was that you had 
22 gone this way. 
23 A. That's correct, yes. 
24 Q. And then when he asked you, "Is it possible you went 
25 around the building," what you thought he meant was, "Is it 
733 
 1 possible you went this way." 
2 A. I don't know what I thought. I mean -- what I 
3 thought he meant. I'm sorry. 
4 Q. What did you say was -- what did you agree was 
5 possible? Anything? 
6 A. That we went around the back of the building. I 
7 couldn't -- after that -- 
8 Q. Okay. You weren't talking about going this way 
9 (indicating). 
10 A. No. 
11 Q. Okay. 
12 A. I don't -- I don't believe so, no. 
13 Q. Let me ask you this. Does this -- do these marks 
14 here accurately reflect what you were trying communicate to 
15 them on March the 10th was your route leaving the scene? 
16 MR. CRANE: Wait a minute. What -- what marks? 
17 MR. ROGERS: These orange marks on the piece of 
18 plastic over the aerial photo. 
19 A. Yeah. That was a possibility, yeah. 
20 Q. So, can we put here, so we won't confuse this 
21 diagram with others, "CE," for Chuck Erickson? 
22 A. Well, what does that mean? 
23 Q. Those are your initials, because these were the 
24 marks made during your testimony? Okay? 
25 A. Well -- 
734 
 1 Q. We're going to get another piece of plastic and 
2 we're going to take this one away and draw on it. That's 
3 what we're going to do. Okay. And I want to put here "CE," 
4 to show that that's what you told the police on 3-10-04. 
5 Okay? 
6 A. All right. 
7 Q. Will that -- you don't have a problem with that, do 
8 you? 
9 A. No. 
10 Q. All right. 
11 Now, can you see that now? 
12 A. Uh-huh. 
13 Q. Okay. 
14 THE COURT: Is that a yes? 
15 THE WITNESS: Yes. I'm sorry. 
16 Q. Now, you had read the police report about the 
17 luminol going east up the alley from the parking lot, south 
18 on Fourth Street towards Broadway; correct? 
19 A. Yeah. 
20 Q. And you also read the police reports about Officer 
21 Alber and the canine. The dog. 
22 A. Yeah. Yes, I did. 
23 Q. And that also indicated that the dog had taken a 
24 trail out east from the parking lot to Fourth Street -- 
25 MR. CRANE: Judge, wait a minute. Now you're 
735 
 1 testifying -- the defense counsel is testifying about a 
2 report -- 
3 MR. ROGERS: I'm asking -- 
4 MR. CRANE: -- that the defendant may have read -- 
5 sorry, Mr. Erickson may have read. Is that essentially what 
6 you're doing? 
7 MR. ROGERS: I am asking a leading question, Kevin. 
8 I'm not testifying. 
9 MR. CRANE: Well, the defense counsel, in his 
10 question, is assuming facts not in evidence by asking about 
11 the text of a police report. And I think that's improper, 
12 Judge. 
13 MR. ROGERS: I can break it up into a couple little 
14 questions, if that will help. 
15 THE COURT: You may rephrase your question. 
16 MR. ROGERS: Thank you. 
17 Q. You read a police report about the police dog, 
18 didn't you? 
19 A. Yeah. 
20 Q. And you read what the report said the dog had done 
21 that night, didn't you? 
22 A. Yes. 
23 Q. And you remember what you read in that report, don't 
24 you? 
25 A. Yes, I do. 
736 
 1 Q. And what the report that you read, that you remember 
2 reading, said was: That the dog -- 
3 MR. CRANE: Well, I'm going to object, Judge. Same 
4 objection. I mean, first of all, it's hearsay. If he wants 
5 to call the officer with the dog, this is America; he can do 
6 that. But to ask this witness what he read in somebody 
7 else's police report is improper. And further, for the 
8 defense counsel to ask a question about what he presumes is 
9 the text of the police reports is improper. 
10 MR. ROGERS: Your Honor, I think I'm allowed to show 
11 the source of the change in this witness's testimony. And 
12 there will be evidence -- there has already been evidence of 
13 his testimony, which is inconsistent with what he told the 
14 police at the time of arrest. And there has certainly been 
15 opportunities for him to tailor his testimony to suit other 
16 evidence in the case. And I think we get to show that he 
17 knows about the other evidence he's tailoring his testimony 
18 to suit. 
19 MR. CRANE: Oh, and I'm not saying he can't try to 
20 do all that. 
21 MR. ROGERS: Okay. 
22 MR. CRANE: I'm just saying he can't do it in this 
23 fashion. 
24 MR. ROGERS: Why not? It's not hearsay. It's not 
25 being offered for the truth of the matter asserted. Whether 
737 
 1 the report is accurate or inaccurate, his testimony has 
2 changed to try and match it. 
3 THE WITNESS: Well, that's your opinion. 
4 MR. CRANE: Well -- 
5 THE COURT: Excuse me, Mr. Erickson. Need to ask 
6 you to refrain from joining in the colloquy. If you would. 
7 The objection's overruled. You may -- if you're not 
8 offering it for the truth of what it purports to be, you may 
9 ask it for the purpose of impeaching this witness's -- 
10 Q. The report that you read about the dog said that the 
11 dog had gone east in the alleyway to Fourth Street; correct? 
12 A. I believe so, yes. 
13 Q. And said that it had gone south on Fourth Street, 
14 across Broadway. 
15 A. Yes. 
16 Q. To the area of the Broadway Diner. 
17 A. Past the Broadway Diner. 
18 Q. Past the Broadway Diner. 
19 A. Continuing down Fourth Street. 
20 Q. Continuing down Fourth Street. 
21 A. Up that street right there. 
22 Q. This street right here, which would be -- 
23 A. And I'm not sure -- 
24 Q. -- Locust Street? 
25 A. And up into the -- I believe it was one of the -- 
738 
 1 the dormitory areas. 
2 Q. Okay. And that would be up to basically Fifth and 
3 Elm? Is that what that is? 
4 A. Yeah. That's correct. 
5 Q. And that the dog stopped at the dormitory area of 
6 Fifth and Elm. 
7 A. That's correct. 
8 Q. And you knew that by the time you went to the 
9 prosecutor's -- the police department to give your proffer on 
10 October 1st. 
11 A. Yes. I had read that. That's correct. 
12 Q. Okay. You had also read the autopsy report, had you 
13 not? 
14 A. I believe so, yes. 
15 Q. You had seen photographs, had you not? 
16 A. Yes, I have. 
17 Q. And you have seen photographs of the injuries to 
18 Mr. Heitholt. 
19 A. Yes. Not in detail at that point, no. I don't 
20 believe so. Not in detail. 
21 Q. Not before October 1st? 
22 A. I don't believe so, no. 
23 Q. You've seen them since then. 
24 A. Yes. 
25 Q. And when's the last time you saw any of those 
739 
 1 photographs? 
2 A. Well, there's one right next to me. I mean -- I -- 
3 they're -- when I have to go to the prosecutor's office, 
4 they're just sitting out, so. 
5 Q. You've been to the prosecutor's office several times 
6 in preparation for your testimony. 
7 A. That's correct. 
8 Q. And you've been there as recently as last week. 
9 A. Yes. 
10 Q. And you've been there several times within the last 
11 couple of months. 
12 A. Yes. 
13 Q. And you've gone over your proposed testimony with 
14 Mr. Crane. 
15 A. Yes. 
16 Q. And you've gone over it with Mr. White, who's an 
17 investigator in the prosecutor's office. 
18 A. That's correct. 
19 Q. And you've gone over it with Mr. Hawes, who's an 
20 investigator in the prosecutor's office. 
21 A. Yes. 
22 Q. And have you gone over it with Mr. Knight, the 
23 assistant prosecuting attorney? 
24 A. Yes. 
25 Q. And you've done that repeatedly since August of 
740 
 1 2005. 
2 A. Yes. Yes. 
3 Q. And they have discussed with you photographs, maps, 
4 charts, things like that. 
5 A. Yes, they have. 
6 Q. And you and Mr. Crane had gone through, in his 
7 office, the demonstration that you conducted here yesterday. 
8 A. Yes, I showed him what happened, that's correct. 
9 Q. Yeah. The same way -- and he was playing the part 
10 of Mr. Heitholt or whatever. Right? 
11 A. Yes. 
12 Q. Same way. 
13 A. Yes. 
14 Q. So that wasn't a first-time deal either, was it? 
15 A. No. 
16 Q. Let's take you back to October 1st, when you went to 
17 the police station with your lawyer for your proffer session. 
18 Correct? 
19 A. Okay. 
20 Q. And let's talk specifically about the route that you 
21 told them you took leaving the Tribune parking lot. 
22 A. Okay. 
23 Q. Who, by the way, was present at that meeting? 
24 A. Kevin Crane, my attorney, I believe John Short, and 
25 another detective. I can't remember his name. 
741 
 1 Q. Okay. Maybe Detective Liebhart? 
2 A. Yeah. Yeah. That's correct. 
3 Q. Now, you told those people in your proffer 
4 session -- by the way, what was your understanding the 
5 proffer session was about? 
6 A. It was just me -- because I -- there were some 
7 things I had remembered -- that I remembered that I hadn't 
8 remembered before and some things that I remembered more 
9 accurately. And it was -- it was just -- at some point I had 
10 to divulge this stuff to the prosecution. To the state. If 
11 I was going to be completely truthful. 
12 Q. So your understanding of what you were there to do 
13 was to tell them, "Look, if you make a deal with me to tell 
14 the truth, this is what I'm saying the truth is"? 
15 A. No. That's not correct at all. 
16 Q. That's not what the proffer's about? 
17 A. No. 
18 Q. The proffer is not: This is what I will testify to 
19 if I make an agreement to tell the truth? 
20 A. This is -- I told them that this is what happened. 
21 This is the truth. And this is what I -- yeah. Exactly. 
22 This is what I will testify to, if I do make a deal. 
23 Q. All right. And that was the deal. And you signed a 
24 letter that basically said, "If I don't make a deal, you 
25 can't use it against me," didn't you? 
742 
 1 A. Yes, I did. 
2 Q. And they signed it too. 
3 A. Yes, they did. 
4 Q. And so this was what you were offering to say in 
5 return for the deal. Correct? 
6 A. What I was offering to say? 
7 Q. Uh-huh. 
8 A. I mean -- 
9 Q. Do you know the word "proffer"? 
10 A. Yeah. 
11 Q. It means a -- an offer. Correct? 
12 A. I suppose, yeah. 
13 Q. Okay. Now what you told those people -- and by the 
14 way, you've had a chance to go over Detective Short's report 
15 of that conversation, haven't you? 
16 A. I think. 
17 Q. More than once. 
18 A. I don't know. 
19 Q. Okay. You told them that, when you began to run 
20 from the scene, you left the opposite direction from which 
21 way you -- from the way you came. Correct? 
22 A. Yes. Yes. 
23 Q. And so if you came up the alley from the west, you 
24 would leave up the alley to the east. Correct? 
25 A. Yes. 
743 
 1 Q. I'm marking a dark red here on the plastic overlay 
2 of Defendant's Exhibit D. 
3 Then you told them that you ran towards Broadway -- 
4 A. Well, first I went left, and then Ryan grabbed me, 
5 and we went towards Broadway. 
6 Q. That's what you told us yesterday. 
7 A. I believe I said that in the proffer also. 
8 Q. Okay. 
9 A. I might be wrong about that. I might -- 
10 Q. You might be wrong. 
11 A. -- have left that out. 
12 Q. Would it refresh your recollection as to what you 
13 told them in the proffer -- 
14 A. Yeah. 
15 Q. -- if I were to show you Mr. Short's report? 
16 A. Yeah. That's fine. Well, I mean, I don't know if, 
17 I mean, if his report's accurate. 
18 MR. CRANE: Judge, I'm going to make the same 
19 objection with respect to that recollection of memory as I 
20 did yesterday. 
21 THE COURT: The objection is sustained. 
22 MR. ROGERS: May we approach, Your Honor? 
23 THE COURT: You may approach. 
24 - - - 
25 Counsel approached the bench and the following 
744 
 1 proceedings were held: 
2 MR. ROGERS: This is not being offered to show the 
3 truth of the matters asserted in the report, or during the 
4 proffer. It's being showed -- it's being shown to the 
5 witness to refresh his recollection as to what he said in the 
6 proffer. And he has said that he doesn't know, he might have 
7 said that, he doesn't know, and I was going to see whether or 
8 not if it refreshed his recollection. Either it does, in 
9 which case he can testify as to his present recollection of 
10 what he said in the proffer, or it does not, in which case 
11 I'm stuck and will leave it alone. But I think it's 
12 perfectly proper to refresh his recollection about what he 
13 said with the report about what he said. 
14 MR. CRANE: He's using it as a transcript and he is 
15 using it for the -- for whether or not the matter was stated. 
16 That's the truth of the matter. 
17 THE COURT: I'm sustaining the objection because, 
18 number one, he didn't write that report. Number two, it's 
19 not a transcript of what he said. Either of those two -- you 
20 could ask him to refresh his recollection by looking at 
21 either what he said that was transcribed or if he had some 
22 writing that he could refer to. I'm sustaining the objection 
23 as to that. 
24 MR. CRANE: Some writing that he -- that he did. 
25 THE COURT: That the witness did. 
745 
 1 MR. CRANE: Okay. 
2 THE COURT: The objection is sustained. 
3 - - - 
4 The following proceedings were held in open court: 
5 Q. Let me ask another question, Mr. Erickson. This 
6 report -- this proffer session took place on October the 1st; 
7 is that correct? 
8 A. I believe that's correct, yes. 
9 Q. And you entered into your plea agreement on November 
10 the 4th; correct? 
11 A. Yes. 
12 Q. And we're talking about 2004. Last year. 
13 A. Yes. 
14 Q. And when you entered into your plea agreement, you 
15 were asserting that what you had said in the proffer was 
16 true; correct? 
17 A. Yes. 
18 Q. And you have had a chance to go over with your 
19 attorney what was in the report that you said in the proffer; 
20 correct? 
21 A. I had a chance. I don't recall I ever did go over 
22 what was in the report with my attorney. I had a copy of the 
23 report. 
24 Q. Okay. 
25 A. But I don't think I ever went over it with my 
746 
 1 attorney. 
2 Q. But you have gone over the report. 
3 A. I may have. I might have skimmed it. I mean, I 
4 skimmed everything, all the legal documents were sent to me. 
5 I thought it was probably the best thing to do. 
6 Q. Best thing to do was to read it? 
7 A. To make sure there weren't any problems. 
8 Q. To make sure there weren't any problems? 
9 A. Yes. 
10 Q. And at the time that you entered into your plea 
11 agreement, you had an opportunity, if you wanted to, to 
12 correct any misstatements in the report; correct? 
13 A. Yeah, if I noticed it. 
14 Q. Okay. 
15 A. And -- I mean, no one came to me and said, you know, 
16 "If there is a problem with this report, feel free to change 
17 it now." 
18 Q. But you didn't spot any problems when you went over 
19 it. 
20 A. I can't remember. 
21 Q. If you had spotted a problem with the report, you 
22 would have done something about it, wouldn't you? 
23 A. I don't know. 
24 Q. You wouldn't have let it stand as the truth when you 
25 knew it wasn't accurate, would you? 
747 
 1 A. No, I wouldn't do that. 
2 Q. Okay. And so when you entered into your plea 
3 agreement to let it stand as the truth, you were adopting it, 
4 this report's accuracy, were you not, as to what you had said 
5 during the proffer? 
6 A. Yes. 
7 MR. ROGERS: Now, Your Honor, I'd like to be able to 
8 show the report to the witness to refresh his recollection. 
9 THE COURT: What was the question that you asked him 
10 that he needed to reflect his recollection -- refresh his 
11 recollection upon? 
12 MR. ROGERS: I have to refresh my recollection, Your 
13 Honor. And that question was: Whether he told them during 
14 the proffer about starting to go north on Fourth Street and 
15 then being jerked back by Mr. Ferguson like he told us 
16 yesterday. 
17 THE COURT: And his answer was he didn't remember? 
18 MR. ROGERS: And his answer was he didn't remember 
19 whether he said that in the proffer or not. 
20 Is that accurate? 
21 THE WITNESS: That's correct. 
22 MR. ROGERS: Yes. 
23 THE COURT: I will allow -- 
24 MR. CRANE: Judge, can I -- he -- that's all well 
25 and good. He can ask that question. And he can call 
748 
 1 Detective Short and ask Detective Short what he recalled 
2 being said. But he can't use it like a deposition 
3 transcript. I'm not suggesting he can't impeach the witness, 
4 if he wishes to, but not with what somebody else wrote that 
5 hasn't testified yet in the case. 
6 MR. ROGERS: I'm not attempting to impeach the 
7 witness, Your Honor. I'm just attempting to refresh his 
8 recollection. 
9 THE COURT: Since he has adopted that report as 
10 being accurate and correct, I will allow you to refresh his 
11 memory with that report. Even though he did not write it 
12 himself. 
13 MR. ROGERS: Thank you. 
14 A. Yeah, I still -- I mean, I still can't remember if I 
15 mentioned it or not. 
16 Q. Okay. You still can't remember whether you 
17 mentioned it or not. 
18 A. During the proffer. I don't know if I -- if I 
19 noticed I hadn't said that or not. When it was in the 
20 report. 
21 Q. Okay. So your testimony now is you don't know 
22 whether or not during the proffer you mentioned going 
23 north -- 
24 A. Yeah, I thought I had, but I'm not sure if I had. 
25 Q. Okay. Fair enough. And even having read the 
749 
 1 report, you still are not sure. Is that fair? 
2 A. Yeah, that's correct, because I found many errors in 
3 a lot of the reports. 
4 Q. So I'll put a question mark here. Okay. 
5 Eventually, however, your testimony -- or your statement at 
6 the proffer was that you went south on Broadway; correct? 
7 A. That's correct. 
8 Q. I got the question mark here because you don't 
9 remember what you said at the proffer about going north, and 
10 we're going south on Fourth Street towards Broadway. 
11 Correct? 
12 A. That's correct. 
13 Q. And you said you ran southbound past the Broadway 
14 Diner; is that correct? 
15 A. Well, we went through the parking lot first. 
16 Q. Through the parking lot of the diner. 
17 A. Yeah. I can't remember if I went behind the diner 
18 or not. I know that I went through a parking lot. 
19 Q. And is the diner over here on the -- 
20 A. East. 
21 Q. -- east side of Fourth Street? 
22 A. Yeah. That's the diner. 
23 Q. I'm going to circle that and put a "BD" for Broadway 
24 Diner. Is that -- is that the building we're talking about? 
25 A. Yeah. 
750 
 1 Q. Okay. So you went across Broadway, and then across 
2 Fourth Street, and through the parking lot of the diner? 
3 A. Yeah. 
4 Q. And you don't know whether you went behind the 
5 diner, in this direction? 
6 A. I can't remember if we went through -- I just 
7 remember going through the parking lot. I can't remember if 
8 I went behind the diner or not. 
9 THE COURT: Mr. Crane, I think you may be blocking 
10 someone's view. 
11 MR. CRANE: Judge, can I block their view just for a 
12 minute here? Because I am having trouble seeing this thing. 
13 Is that all right? 
14 (Mr. Crane looking at diagram.) 
15 MR. CRANE: Judge, I want to make a record that on 
16 Defendant's Exhibit D -- 
17 THE COURT: This isn't D. D was one of the -- 
18 MR. CRANE: What is this thing? 
19 THE COURT: D was the DVD. 
20 MR. ROGERS: I'm sorry. That's B. 
21 MR. CRANE: Okay. Defendant's Exhibit B, there is 
22 no diner on this photograph that they've been showing this 
23 witness. That back when this photograph was taken -- and I 
24 admit this is from having the benefit of living here in 
25 Columbia -- the diner was up the street, around the corner. 
751 
 1 And then they moved it later to the location that's 
2 accurately portrayed on the State's Exhibit 9, which was 
3 where it was in November -- on November 1, 2001. 
4 Now the defense attorney, still continuing with this 
5 record, has placed on Defense Exhibit B, having asked the 
6 witness a question, a big old grease circle around what at 
7 this time was the old Katie Station. 
8 MR. ROGERS: And I -- 
9 THE COURT: Is there an objection that you have, 
10 Mr. Crane? 
11 MR. CRANE: I just was making a record that he's 
12 asking the question about a diner, and there isn't one on 
13 here. 
14 MR. ROGERS: Okay. Well, I -- and I appreciate the 
15 correction. 
16 MR. CRANE: So the objection is: That's improper. 
17 MR. ROGERS: I would appreciate the corrections, 
18 Your Honor. And I would ask Mr. Crane to, from the basis of 
19 his knowledge of Columbia, which I'm not from here, if he 
20 would place a big old grease pencil where the Broadway Diner 
21 is. Now I'm erasing the big old grease mark that I put here. 
22 MR. CRANE: Well, I'm not trying to be an 
23 obstructionist, but I don't think I'm going to do that. 
24 MR. ROGERS: What I'm doing is offering to stipulate 
25 to your statement correcting this photograph, which I've 
752 
 1 already stated is -- was taken sometime before the events at 
2 issue. So if you want to be accurate, let's be accurate. 
3 MR. CRANE: Well, I'll tell you what I'll do. I'll 
4 make an agreement with you. I'll tell you that the diner is 
5 on State's Exhibit 9. I think that's 9, isn't it? Look on 
6 the back of that. Yeah. 9. And it's located down Fourth 
7 Street, right there. 
8 MR. ROGERS: Right there. 
9 MR. CRANE: Yeah. 
10 MR. ROGERS: So that would be in what is the parking 
11 lot behind the Katie Station? If I put that big old grease 
12 pencil and write -- 
13 MR. CRANE: Yeah -- you can ask the witness. 
14 A. Yeah, that's correct. 
15 Q. Is that correct? 
16 A. That's correct. 
17 Q. Okay. You're not just agreeing to be agreeable now. 
18 A. No. 
19 Q. All right. So, are you're saying you went across 
20 the parking lot of the Broadway Diner like that. 
21 A. Yeah. That's correct. 
22 Q. And now can I put a "BD" here where the Broadway 
23 Diner really is? 
24 A. That's right. 
25 Q. Okay. 
753 
 1 A. Yeah. 
2 Q. And from the Broadway Diner -- we're now back to 
3 your proffer on October the 1st of last year. Did you tell 
4 them at that time that, after running south past the Broadway 
5 Diner, you began to run in a westerly direction across and 
6 through Flat Branch Creek? 
7 A. Yes. 
8 Q. So that would be this way? 
9 A. I can't really tell. 
10 THE COURT: You can step down and look at it, if you 
11 would. 
12 Q. Actually, if you can reach it -- in what -- could 
13 you draw on that? Can you reach up that high? 
14 A. No, I can't. 
15 MR. CRANE: Your Honor, I need to make an objection. 
16 At the time the defense -- 
17 THE WITNESS: There's -- 
18 MR. CRANE: -- photograph was -- just -- don't talk; 
19 okay? 
20 THE WITNESS: Sorry. Sorry. 
21 MR. CRANE: At the time the defense photograph was 
22 taken, Flat Branch Park was not there. And there's -- 
23 MR. ROGERS: Right. 
24 MR. CRANE: You knew that. 
25 MR. ROGERS: Right. 
754 
 1 MR. CRANE: And there's several things in this area 
2 that he's taking the defendant to now around Flat Branch 
3 Creek, there were some old oil tanks, there was a gas thing 
4 there, and various things that were not present on November 
5 1, 2001. Those are, however, accurately represented as the 
6 condition of that Flat Branch Park area in State's Exhibit 9, 
7 but not on Defense Exhibit B. 
8 MR. ROGERS: I agree with that, Your Honor. 
9 Q. And stuff that wasn't there when you remember being 
10 there, if you remember being there, ignore. But in terms of 
11 the directions, the directions haven't changed. Right? 
12 A. Right. 
13 Q. Okay. So could you -- 
14 THE COURT: Is there an objection you have, 
15 Mr. Crane? I -- I'm not certain that I heard you enunciate 
16 it. Are you -- 
17 MR. CRANE: Well, I was making a record, that -- I 
18 mean, the -- I realize that some photographs, it's impossible 
19 to be exactly fair and accurate, particularly with aerials, 
20 with businesses that may change and parks. Whole buildings, 
21 though, and parks, I would make an objection with respect to 
22 the fair and accurate depiction of this photograph. I mean, 
23 with the understanding that all this has changed. And I'm 
24 pointing to the Flat Branch Creek area. I guess he can 
25 testify. But we're putting lines on it. The contour of the 
755 
 1 creek's even been changed since then. 
2 MR. ROGERS: With -- 
3 MR. CRANE: With the understanding it's not a fair 
4 and accurate representation. 
5 MR. ROGERS: With regard to the structures present 
6 and the shape of the park, sure. 
7 THE COURT: And what are you going to have him draw? 
8 MR. ROGERS: The route that he told them during his 
9 October 1st proffer he took. 
10 MR. CRANE: And as long as we're in agreement that 
11 that photograph is not a fair and accurate representation of 
12 the area -- 
13 MR. ROGERS: In terms of the structure, sure. 
14 MR. CRANE: -- I won't object. It's not. 
15 THE COURT: Are you stipulating that it is not fair 
16 and accurate in all respects? 
17 MR. ROGERS: In all respects. Certainly in terms -- 
18 it's certainly a fair and accurate depiction of when it was 
19 taken, but it's not a fair and accurate depiction -- things 
20 changed between when this photograph was taken and 2001. 
21 THE COURT: And specifically the area of Flat 
22 Branch, the creek as well as the park there as well as the 
23 diner. 
24 MR. ROGERS: Right. 
25 THE COURT: That those -- those are not portrayed 
756 
 1 accurately on Defendant's Exhibit B. 
2 MR. ROGERS: Right. 
3 THE COURT: With that understanding, if he can mark 
4 it, or if you want to -- 
5 THE WITNESS: Yeah. You're going to have to hold 
6 it, because -- 
7 THE COURT: Or you may remove it from the easel and 
8 put it at a point where he's able to mark it. 
9 A. This isn't right. 
10 Q. Right. I know that. 
11 A. Okay. 
12 Q. Just show us -- show the route that you took. 
13 A. All right. I'm going to do my best. 
14 (Witness drawing on exhibit.) 
15 A. All right. You want me to stop at the creek? 
16 Q. Go ahead and cross the creek, if you did. 
17 A. Well, here's the creek. I'll circle the creek if 
18 you want me to. 
19 Q. No. 
20 A. Okay. Here's the creek. And we came up here. 
21 THE COURT: I don't know if the jurors can either 
22 see or hear what you're -- 
23 Q. I'll hold it back up when he's done. 
24 A. Behind the gas station. Went to the right. 
25 Q. Okay. You can resume the stand for a minute. 
757 
 1 A. All right. 
2 Q. And we'll clean up the record a little bit. 
3 Okay. So you have drawn this line, that I'm going 
4 to now draw more firmly, going across where these buildings 
5 used to be, but they're not at the time we're talking about; 
6 right? 
7 A. That's correct. 
8 Q. And across Flat Branch Creek, and up behind the gas 
9 station. And by "the gas station," you mean the Phillips 66 
10 station. 
11 A. Yes. 
12 Q. And around the Phillips 66 station to Providence 
13 Road. Correct? 
14 A. Yes. The intersection of Providence and Cherry. I 
15 think that's Cherry. 
16 Q. Locust? 
17 A. Or is that Locust? Yeah, Locust then. Okay. 
18 Q. Okay. And the intersection of Providence and Locust 
19 is where you saw -- that you told them during your proffer 
20 session that you saw Dallas Mallory sitting southbound on 
21 Providence at the stoplight. 
22 A. Well, he was pulling up at the time, when we got to 
23 Providence, and then he stopped. 
24 Q. For the light. 
25 A. So he was pulling up, yeah. 
758 
 1 Q. Did you tell them in your proffer session on October 
2 1st that you saw him sitting at the stoplight? 
3 A. I believe that -- I'm not sure. That's when I 
4 approached the car. I'm not -- I'm not sure. 
5 Q. And so the car -- do you know if it was in the 
6 middle lane or the right-hand lane of the two southbound 
7 lanes? 
8 A. I believe, if you're heading south, it was in the 
9 left-hand lane, like the passing lane. 
10 Q. So that would be where I'm drawing a rectangle and 
11 putting an arrow to show the direction the car was 
12 pointing -- 
13 A. Okay. 
14 Q. -- is that correct? 
15 A. Yeah. 
16 Q. And is it your -- is what you told them at the 
17 proffer session, that you then went up and talked to 
18 Mr. Mallory? 
19 A. Yes. That's correct. 
20 Q. Where I've drawn the line. 
21 A. Yeah. 
22 Q. And then did you tell them at the proffer session 
23 that you went through the Osco parking lot? 
24 A. That's correct. 
25 Q. Now back in 2001, was Osco open? 
759 
 1 A. Yes. 
2 Q. And is Osco shown on this picture? 
3 A. I believe -- I don't know if it was Osco then, but I 
4 think it's the same building. 
5 Q. Okay. And so is this the parking lot we're talking 
6 about? 
7 A. Yeah. That's the parking lot. 
8 Q. What direction did you go in the parking lot? 
9 A. You want -- should I draw it? 
10 THE COURT: You may step down. 
11 Q. Let me ask you, did you -- I'll see if I can do it 
12 verbally. 
13 A. I believe we went west. 
14 Q. Did you go straight west or did you go diagonally? 
15 A. We went diagonally. I mean -- 
16 Q. From southeast to northwest? 
17 A. Yeah. That's correct. 
18 Q. An exact diagonal or more or less? 
19 A. More or less. 
20 Q. So this general direction? 
21 A. Yeah. But we -- we weren't at the drive. We went 
22 up in the grass, and then we cut through the parking lot. 
23 Q. Okay. You went west on the drive and then cut 
24 through? 
25 A. Well, it would be better if you just let me draw it. 
760 
 1 I mean -- 
2 Q. I'll bring it to you. 
3 A. I don't know -- well -- 
4 MR. ROGERS: I apologize, Your Honor, for blocking 
5 your view. 
6 THE COURT: That's fine. 
7 A. I just want to be, you know -- 
8 Q. Okay. Yes. I want you to be as accurate as you 
9 can. And I can lean on it and make it -- 
10 A. We came across here. We ran up -- there's a little 
11 hill right there. We ran up there. We cut across down here 
12 to the parking lot. 
13 Just tell me when you want me to stop. 
14 Q. Keep going. 
15 (Witness drawing on the exhibit.) 
16 Q. All right. Now -- so you came from behind the car, 
17 crossing a little hilly area between -- 
18 A. Well, the car took off. We didn't come from behind 
19 the car. The car took off. 
20 Q. The car took off. 
21 A. Yeah. 
22 Q. And you crossed the parking lot at a diagonal and 
23 into the other parking lot. 
24 A. That's correct. 
25 Q. Which you also crossed at a more or less diagonal; 
761 
 1 correct? To Broadway. Is that accurate? 
2 A. Yes. 
3 MR. ROGERS: Your Honor, would this be a good time 
4 for a recess? 
5 THE COURT: I don't know where you are in your 
6 examination. Is this a good time to break your examination? 
7 MR. ROGERS: It is for me. 
8 THE COURT: All right. 
9 Ladies and gentlemen, we will take our mid-morning 
10 recess. 
11 The Court again reminds you of what you were told at 
12 the first recess of the Court. Until you retire to consider 
13 your verdict, you must not discuss this case among yourselves 
14 or with others, or permit anyone to discuss it in your 
15 hearing. You should not form or express any opinion about 
16 the case until it is finally given to you to decide. Do not 
17 read, view, or listen to any newspaper, radio, or television 
18 report of the trial. 
19 And while the jury is out, would you have them make, 
20 if they have not already made their selection for lunch, and 
21 find out what time lunch would be delivered, so we'll know 
22 about recessing for the noon hour. 
23 You may be excused, ladies and gentlemen. 
24 - - - 
25 The following proceedings were held out of the presence 
762 
 1 of the jury: 
2 THE COURT: Before you all take your break, I want 
3 to talk to you just a minute. 
4 One of our jurors is using an assisted hearing 
5 device. You've probably seen that. It's an older gentleman, 
6 sitting in the back. And yesterday for a time he was having 
7 some trouble with it. We got some new batteries for it. And 
8 as far as I know, it's working all right. However, I've had 
9 our marshal go back just to check, because it would concern 
10 me if he's not picking up everything. 
11 DEPUTY COURT MARSHAL LANE: It is working, Judge. 
12 THE COURT: It is working. 
13 MR. CRANE: You know, another thing might be good if 
14 he would sit on the front row. 
15 THE COURT: Well, I can't imagine why he wouldn't 
16 want do that. He has been suggested to do that. He's a shy 
17 fellow, I guess. I don't know. But I wanted -- 
18 (Audience becoming noisy.) 
19 DEPUTY COURT MARSHAL LANE: Folks, court is still in 
20 session. 
21 THE COURT: With that understanding -- I just wanted 
22 you to be aware of it. 
23 MR. ROGERS: Have I been talking louder since you -- 
24 THE COURT: Yeah, you have. And I can hear that 
25 you're closer to that mic. And you can hear it from that 
763 
 1 mic. I can hear you better. And we haven't had any 
2 complaints. 
3 We'll be in recess then. 
4 (Recess taken.) 
5 - - - 
6 The following proceedings were held out of the presence 
7 of the jury: 
8 THE COURT: State ready to proceed? 
9 MR. CRANE: Ready, Judge. 
10 THE COURT: And the defendant? 
11 MR. ROGERS: Yes, Your Honor. 
12 THE COURT: All right. And Mr. Ferguson is here. 
13 All right. 
14 You may return the jury to the courtroom, please. 
15 - - - 
16 The following proceedings were held in the presence of 
17 the jury: 
18 - - - 
19 CHARLES TIMOTHY ERICKSON, 
20 resumed the stand and testified further: 
21 THE COURT: You may inquire. 
22 - - - 
23 RESUMED CROSS-EXAMINATION 
24 BY MR. ROGERS: 
25 Q. Mr. Erickson, during the recess I marked on the 
764 
 1 plastic overlay on Defendant's Exhibit B the initials "CE" 
2 for you and the date "10-1-04," because the markings on that 
3 indicate what you told the police and prosecutors during your 
4 proffer on October 1st, 2004; is that correct? 
5 A. Yes. 
6 Q. Now, when you say you encountered Dallas Mallory 
7 stopped at the light on Providence and Locust, were you 
8 carrying Mr. Heitholt's belt? 
9 A. I had it in my pocket. 
10 Q. Had it in your pocket. 
11 A. Yes. 
12 Q. Okay. And once again, you recall giving the proffer 
13 statement to Detective Short and others on October 1st; 
14 correct? 
15 A. Yes. 
16 Q. Isn't it true that you told Detective Short that you 
17 had the belt in your hand when you talked to Dallas Mallory? 
18 A. Yeah, I believe I may have said that, yes. 
19 Q. But now you're saying that's not true. 
20 A. I'm fairly sure it was in my pocket. 
21 Q. And it can't be both in your pocket -- you didn't 
22 have your hand in your pocket, did you? 
23 A. I don't believe so. 
24 Q. What you were trying to tell Short was you had it in 
25 your hand, but what you're telling us is you had it in your 
765 
 1 pocket. 
2 A. Yes. 
3 Q. Before your proffer session on October 1st, 2004, 
4 but after your arrest on March 10th, 2004, in between those 
5 times, had you ever told any law enforcement person, 
6 policeman, prosecutor, deputy sheriff, FBI agent, any law 
7 enforcement person that you had gone south on Fourth Street, 
8 across the parking lot of the Broadway Diner, through Flat 
9 Branch Park, and across the creek, coming out on Providence 
10 by the Phillips gas station? 
11 A. No. 
12 Q. That was the first time you said that to any law 
13 enforcement authority. 
14 A. That's correct. 
15 Q. Between those dates, your arrest, March 10th, 2004, 
16 your proffer, October 1st, 2004, had you been taken to the 
17 area of downtown Columbia to drive through or walk through or 
18 be carried through the places that you've talked about? 
19 A. No. 
20 Q. You told us you had read police reports. 
21 A. Yes. 
22 Q. You told us you had seen the videotapes. 
23 A. Yes. 
24 Q. That would include the videotape of Mr. Nichols 
25 driving through that area. 
766 
 1 A. That's correct. 
2 Q. Had you had any other contact with any information 
3 about the geography of that area between your arrest and 
4 between the proffer? 
5 A. No. 
6 Q. So you never sat down with your attorney and went 
7 through a series of still pictures or anything like that. 
8 A. No. 
9 Q. And certainly not with any law enforcement agent, 
10 because you didn't talk to them. 
11 A. That's correct. 
12 Q. In between your arrest and your proffer, you were 
13 held in the Boone County Jail; is that correct? 
14 A. Yes. 
15 Q. And during that time, you had frequent conversations 
16 with your family members. 
17 A. Yes. 
18 Q. And your familiar members include a younger sister 
19 and two parents. 
20 A. That's correct. 
21 Q. And some of those conversations were in person, when 
22 they would come to the jail to visit you at the designated 
23 time. 
24 A. Yes. 
25 Q. And some of those conversations were on the 
767 
 1 telephone. 
2 A. That's correct. 
3 Q. And especially early on, after your arrest, you'd 
4 had very frequent telephone conversations with your parents, 
5 didn't you? 
6 A. That's correct. 
7 Q. And even though you had been told not to discuss the 
8 case on the telephone, you did anyway, didn't you? 
9 A. Yes, I did. 
10 Q. And you discussed with your parents many things 
11 concerning the case; correct? 
12 A. Yes, I did. 
13 Q. And you also had conversations concerning your case 
14 with people at the jail. Staff members. 
15 A. Yes. 
16 Q. And in particular, shortly after your arrest, you 
17 had a conversation with the nurse in the jail, didn't you? 
18 A. That's correct. 
19 Q. And the nurse asked you whether or not you committed 
20 the crime that you were there for; correct? 
21 A. Yes. 
22 Q. And you told them that you weren't sure really, 
23 didn't you? 
24 A. That's what I told them, yes. 
25 Q. And that was not a lie when you told that to the 
768 
 1 nurses in the jail, was it? 
2 A. No. 
3 Q. At that time, even after your arrest, you were not 
4 sure that you had committed this crime, were you? 
5 A. Yeah, consciously I was not sure. 
6 Q. Okay. You were not sure. 
7 A. Yes. 
8 Q. And that's what you told the nurse. 
9 A. That's correct. I was not a hundred percent 
10 certain. 
11 Q. Okay. And the rest of what you told the nurse was 
12 that the police had told you that things that you had told 
13 the police correlated with what actually happened. Right? 
14 A. That's correct. Yes. 
15 Q. And that, after that, it was over. 
16 A. The conversation with the nurse was over after that. 
17 Q. After that, your chance of not being convicted was 
18 over. 
19 A. I don't think I meant that. 
20 MR. ROGERS: Would you play "nurse 3," please? 
21 I will tell you, Mr. -- oh. I better offer it. 
22 Excuse me. 
23 Your Honor, at this time I would offer Defendant's 
24 Exhibit E, which I will represent is an audio CD that we 
25 received from the state, containing recorded telephone calls 
769 
 1 from the jail. 
2 MR. CRANE: Okay. Date? 
3 MR. ROGERS: This particular call is on track 2, 
4 which is April 8th, 2004, beginning at 1810 hours, which is 
5 6:10 p.m. 
6 MR. CRANE: Is this the one you were asking 
7 questions about? 
8 MR. ROGERS: Yes. 
9 MR. CRANE: Okay. 
10 MR. ROGERS: It contains the excerpt I want to play. 
11 MR. CRANE: It doesn't have the whole track on 
12 there? 
13 MR. ROGERS: This is the whole track. The excerpt 
14 has been excerpted from it. 
15 MR. CRANE: Okay. I don't know what the excerpt is. 
16 MR. ROGERS: It's my -- 
17 MR. CRANE: I guess if -- 
18 THE COURT: Do you want an opportunity to listen to 
19 it before it's played to the jury? 
20 MR. CRANE: Well, I can maybe -- if it's -- if it's 
21 an accurate portion of it, I guess -- you know, I'm not 
22 concerned about the jury hearing it. I guess I'm trying to 
23 figure out, if it's not in -- the entire conversation or the 
24 context isn't all in there, then I guess I can go back to the 
25 big tape and find it and play that for the jury? 
770 
 1 MR. ROGERS: Right. 
2 MR. CRANE: I guess there's no chance you'd do that? 
3 MR. ROGERS: I don't want to play the whole thing. 
4 It would take forever. 
5 MR. CRANE: No, it wouldn't. How long's that track? 
6 MR. ROGERS: Well, this part that I intend to play 
7 ends at 17 minutes and 11 seconds into it. And the part that 
8 I intend to play takes less than 30 seconds. 
9 MR. CRANE: Well, see, that's what I thought. 
10 There's -- I believe I know the conversation that they're 
11 wanting to put in now 30 seconds of. 
12 MR. ROGERS: Right. 
13 MR. CRANE: I -- you know, I suppose, Judge, I'll 
14 have to go back and find it on our tapes and run the full 
15 context on redirect. 
16 THE COURT: Are you saying that 30 seconds would be 
17 out of context and not -- 
18 MR. CRANE: Yeah. 
19 THE COURT: -- the whole conversation? 
20 MR. CRANE: If it's the same conversation I know 
21 about, I know that 30 seconds is not going to get the full 
22 conversation that they're talking about in. 
23 THE COURT: How long is the full conversation, 
24 Mr. Rogers? 
25 MR. CRANE: Oh, I'm going to say three minutes 
771 
 1 maybe. 
2 MR. ROGERS: No. Full conversation is -- 
3 MR. CRANE: No. No. The full conversation on the 
4 thing about the nurse. This is where the mother -- or the 
5 witness's mother and he are talking about not talking to 
6 people at the jail? At the beginning of -- that's not what 
7 you're going to play. You're going to -- 
8 MR. ROGERS: That's not what I'm going to play. 
9 MR. CRANE: You're going to play the end of it, 
10 without the front, is what you want to do. And I guess my 
11 only recourse, if I don't object to the excerpt, is to go 
12 back and play it. I mean, I assume you wouldn't object to me 
13 playing -- 
14 MR. ROGERS: For completeness, if you think it's 
15 necessary for understanding. I think this is, in and of 
16 itself, complete to answer the question that I -- 
17 MR. CRANE: I don't doubt that. I don't doubt 
18 that's what defense counsel thinks. 
19 THE COURT: Do you have an objection or not, 
20 Mr. Crane? 
21 MR. CRANE: No. As long as I can get into the other 
22 aspects of this section of the conversation -- 
23 MR. ROGERS: I'm offering -- 
24 MR. CRANE: -- I have no objection. 
25 MR. ROGERS: I'm offering the complete CD, which 
772 
 1 contains three different telephone conversations, including 
2 everything that he just talked about. 
3 THE COURT: You do not object to Defendant's Exhibit 
4 E. 
5 MR. CRANE: Is that the excerpt? 
6 MR. ROGERS: No. That's the big one. 
7 THE COURT: That's the whole CD. 
8 (Discussion off the record between counsel.) 
9 MR. ROGERS: Let me put it this way. That's the 
10 only excerpt from this particular CD that I intend to play 
11 right now. And -- 
12 MR. CRANE: Well -- 
13 MR. ROGERS: -- if you don't want to play -- 
14 MR. CRANE: -- Judge -- well, I guess -- here's the 
15 way I want to propose it. The issue here as to -- we gave 
16 these conversations to the defense. There are numerous 
17 things said on these tapes. The excerpt and its -- and its 
18 contextual aspects I'm not going to object to. The entire 
19 conversations on these tapes, there may be privilege with 
20 respect to his defense counsel. There may be things that are 
21 otherwise objectionable, that I can't sit here and index on 
22 what they're showing me. So maybe the issue is: The matter 
23 of it going back later in its full form may be an issue that 
24 we could take up at a later time. 
25 MR. ROGERS: That's fine, Your Honor. And we would 
773 
 1 be happy to offer it subject to any objection they care to 
2 make to any particular excerpt. 
3 MR. CRANE: I mean, in other words, not only is he 
4 putting on, in this exhibit, one track, and the excerpt from 
5 it, for the jury to hear, there's two other tracks of, let's 
6 say, 20-minute conversations. 
7 MR. ROGERS: Right. And these are the forms we got 
8 them in. 
9 THE COURT: And are you saying those might be 
10 objectionable? 
11 MR. CRANE: Potentially, yeah. I mean, we'll have 
12 to check that out again. We -- there's a lot of time on the 
13 phone there. 
14 THE COURT: As to the particular track that is 
15 offered now to be played for this jury, do you have an 
16 objection to that track? 
17 MR. CRANE: The excerpt. No. I think I know the 
18 one he's talking about, and I won't object to that. 
19 THE COURT: All right. Well, I will admit that, for 
20 that sole purpose. And if you hear that it's a different 
21 track than you think it is, you'll need to speak up. 
22 MR. ROGERS: Okay. 
23 Mr. Weis, would you please play the excerpt from 
24 Exhibit E which has been marked "nurse 3." 
25 THE COURT: And as to this, it's a very brief 
774 
 1 excerpt; is that correct? 
2 MR. ROGERS: That's correct. 
3 THE COURT: I'll have my reporter take it down. 
4 Simply -- I mean, if it were a 20-minute excerpt, it would be 
5 something else, but if it's 30 seconds, and she can hear it, 
6 she will take it down. Now, if it's not clear, I can't 
7 promise you that you'll get a good record of it, with the 
8 court reporter. 
9 MR. ROGERS: Okay. 
10 THE COURT: She will do her best. 
11 MR. ROGERS: "Nurse 3." 
12 (Excerpt played.) 
13 (The excerpt was unintelligible, and an accurate 
14 record could not be made.) 
15 Q. Now, my question is: When you said to your 
16 mother -- that was your mother on the phone? 
17 A. That's correct. 
18 Q. And that was you. 
19 A. That was me. 
20 Q. When you said to your mother, "Basically it was over 
21 after that," you meant the potential case of State of 
22 Missouri versus Charles Erickson for the murder of Kent 
23 Heitholt; right? 
24 A. No. 
25 Q. You meant your choices about what to do about your 
775 
 1 feelings or intimations or beliefs that you may have been 
2 involved with; right? 
3 A. No. 
4 Q. So you still believe that when you told your mother, 
5 "It was all over after" -- or when you told your mother that 
6 you told the nurse it was over after that, you weren't 
7 saying -- 
8 A. I said the conversation was over. After that -- I 
9 said, after that, it was over. Meaning, after I said that, 
10 the conversation was over. Hence, I didn't say anything else 
11 regarding the conversation with the nurse. 
12 Q. So you were saying that basically your conversation 
13 with -- you were trying to tell your mother basically the 
14 conversation with the nurse was over? 
15 A. That's correct. 
16 Q. And so what you said was: "I just told them 
17 basically that some other things that I had to say the cops 
18 correlated with what had actually happened, and that I told 
19 one of my friends about it, and then basically, I mean, after 
20 that it was over." You're talking about: That's the end of 
21 the conversation. 
22 A. That's the end of the conversation. 
23 Q. Not after telling the cops things that they said 
24 correlated -- 
25 A. That's the end of the conversation with the nurse. 
776 
 1 Q. All right. Now, many of these conversations, while 
2 you were in jail, talking to your parents on the phone, 
3 happened before you had received the police reports; correct? 
4 A. Yes. 
5 Q. Before your lawyer had received the police reports. 
6 Correct? 
7 A. Yes. 
8 Q. Before your lawyer had a chance to view the 
9 videotapes. 
10 A. That's correct. 
11 Q. And before you had had a chance to view the 
12 videotapes. 
13 A. Yes. 
14 Q. Yet you and your parents had talked at some length, 
15 both in person and on the phone, about you reaching some kind 
16 of plea agreement to testify against Mr. Ferguson; isn't that 
17 true? 
18 A. Yes. 
19 Q. And you were, at some points, reluctant to do that, 
20 weren't you? 
21 A. Yes, I was. 
22 Q. And your parents were at some points attempting to 
23 persuade you to testify against Mr. Ferguson or to reach a 
24 plea agreement. 
25 A. Yes. That's correct. 
777 
 1 Q. And your father went so far as to tell you that the 
2 more details you could provide the prosecutor, the better 
3 your negotiating position would be; isn't that true? 
4 A. I'm not sure if he said that or not. I believe when 
5 he said that -- you're taking it out of context. When he 
6 said that, he was telling me not to talk about the case with 
7 other people, so that less -- the less other people that had 
8 to come forward with details, and the more that I said 
9 myself -- do you understand what I'm saying? The more that I 
10 said myself and didn't come from other people, probably the 
11 better deal I would get. 
12 Q. All right. So he did tell you that the more details 
13 you personally, Chuck Erickson, could provide, the better 
14 deal you're going to get. 
15 A. Provide myself, yes, that's correct. 
16 Q. Obviously you would have no control over what 
17 details anybody else could provide, unless you somehow gave 
18 them to them. 
19 A. That's correct. 
20 Q. All right. 
21 A. And just to clarify, he was telling me that so I 
22 didn't talk about my case with other people. He wasn't 
23 telling me that so I'd, you know, make up details. 
24 Q. But the message was: The more details you give, the 
25 better the deal. 
778 
 1 A. Myself. That didn't come through an intermediary. 
2 Q. Right. 
3 A. That was his point. So I wouldn't talk about the 
4 case. But it wasn't to manufacture -- he didn't say that so 
5 I'd manufacture details and get a better deal, if that's what 
6 you're getting at, which is I think what you're getting at. 
7 Q. Well, this was a conversation that happened in 
8 April -- at least once in April of 2004. Correct? 
9 A. I don't know. I don't know. 
10 Q. It happened between the time that you were arrested 
11 and told the police the things we've seen on the videotape; 
12 correct? 
13 A. I believe so. I'm not certain. 
14 Q. And the time that you went to give your proffer on 
15 October 1st; isn't that true? 
16 A. I'm not sure. 
17 Q. Sometime in between those times? 
18 A. Possibly. 
19 Q. You would not deny that at least one of those 
20 conversations -- and there may have been more conversations 
21 about that. I'm not saying that's the only one. But you 
22 would not deny that one of those conversations occurred on 
23 April 14th, 2004, would you? 
24 A. I'm not -- no, I won't deny that. 
25 Q. Okay. Before that, on March the 13th of 2004, do 
779 
 1 you recall having a conversation with your mother about the 
2 case? 
3 A. Yeah. I had a lot of conversations about the case 
4 with my parents. 
5 Q. And particularly, on March the 13th, 2004, do you 
6 recall telling your mother, "I just want to see everything. 
7 I just want everything laid out in front of me, because I 
8 can't even fully make it make sense until I see that." 
9 A. Yeah, I believe I said that. 
10 Q. Okay. And you were talking about not being certain 
11 about what happened and wanting to see police reports and 
12 photographs and things so that you could put together in your 
13 own mind a story that made sense to you. Isn't that true? 
14 A. Not a story that made sense to me. The truth. It's 
15 not like I was just going to look at these things and say, 
16 "Oh, well, this might have happened." I'm not sitting here 
17 lying about that now. I'm telling the truth. Whether you 
18 believe that or not, I don't really care. But no, that's not 
19 why I wanted to do that. I wanted to do that so that I could 
20 accurately portray the truth. 
21 Q. Did you hear my question? 
22 A. Yeah. And I thought I answered it. 
23 Q. Were the words "make sense" or "make it make sense" 
24 my words? 
25 MR. CRANE: I think you read it was "fully" -- I 
780 
 1 think the question you asked was "fully make sense." Just to 
2 be accurate, Judge. 
3 Q. My question I'm asking now is: Were the words "make 
4 it make sense" your words, on the phone, talking to your 
5 mother, March 13th, 2004? 
6 A. I don't know. If that's -- if that's what they 
7 were, they very well may have been. I'm not -- I'm not sure. 
8 MR. ROGERS: Your Honor, I would offer Defendant's 
9 Exhibit F, which is a video -- excuse me, audio CD, with 
10 three separate phone calls, including this one, which I 
11 believe is track 3. 
12 MR. CRANE: Okay. 
13 MR. ROGERS: Subject to the other record we made on 
14 the other one, about completeness and reserving objections to 
15 other portions of it that may not be admissible. 
16 MR. CRANE: Okay. So in other words, at this time 
17 all you want to play is the excerpt off of that. 
18 MR. ROGERS: Right. 
19 MR. CRANE: F. Okay. Without going through all 
20 that I said about E, I don't have any objection to the 
21 excerpt being played. 
22 THE COURT: Okay. You may play track 3 of 
23 Defendant's Exhibit F, if that is the conversation that you 
24 referred to. 
25 MR. ROGERS: It's the conversation I referred to. 
781 
 1 Do you have that queued up on the machine? 
2 (Excerpt playing.) 
3 THE COURT: Are you having trouble hearing? 
4 (Tape stopped.) 
5 THE COURT: Is -- 
6 MR. WEIS: That's just -- 
7 MR. ROGERS: Yeah. I don't think we can do any 
8 better. I think that's the recording. 
9 MR. CRANE: Real quick, that was on March 13, '04. 
10 MR. ROGERS: That's right. 
11 MR. CRANE: And that's CD number 3, track -- 
12 MR. ROGERS: 3. 
13 MR. CRANE: CD 3, track 3? 
14 MR. ROGERS: Right. 
15 Just do it again, please. 
16 (Excerpt played.) 
17 MR. ROGERS: Okay. 
18 MR. CRANE: Did he say "fully make a decision"? 
19 MR. ROGERS: The way I heard it was: "Fully 
20 make" -- I don't know. What did you say? Did you hear what 
21 you said? 
22 A. No. 
23 MR. ROGERS: You want to hear it again? 
24 A. It's hard to hear. 
25 Q. It is hard to hear. 
782 
 1 A. It's not in the transcript? I mean -- 
2 MR. ROGERS: Mr. Crane's not hearing what I read in 
3 the transcript, and I'm not sure that I am either. 
4 A. You want to replay it? 
5 MR. ROGERS: Not an official transcript. 
6 A. I mean, we can replay it if you want to. I don't 
7 know. I can't -- I couldn't make out what I said. 
8 MR. ROGERS: Play it again. 
9 (Excerpt played.) 
10 MR. CRANE: "Determination." 
11 MR. ROGERS: Okay. You can stop now. 
12 (Tape stopped.) 
13 Q. Is that what you hear, "Because I can't even fully 
14 make a determination"? 
15 A. I believe that's what I heard, yeah. 
16 Q. Okay. And you're talking about -- 
17 MR. CRANE: Just -- are you going to change your 
18 transcript there? Because you asked him -- 
19 MR. ROGERS: The transcript's not in evidence. It's 
20 just notes. 
21 MR. CRANE: Okay. 
22 MR. ROGERS: I'm not claiming it's a transcript. 
23 THE COURT: Oh. Would you then approach the bench? 
24 Both counsel? 
25 - - - 
783 
 1 Counsel approached the bench and the following 
2 proceedings were held: 
3 THE COURT: There is a camera -- it's off. I turned 
4 it off. 
5 There is a camera behind you in that box. When I 
6 was out at recess, I was advised by someone in the local 
7 media that -- who was looking at the feed that someone was 
8 taking pictures of that particular -- of what was on the 
9 podium. And the person who was taking the pictures said, 
10 "Oh, I'm only taking pictures of transcripts. Legal 
11 transcripts." I assume that you -- I didn't know that you 
12 had other notes there. I wanted to caution you that there's 
13 a camera there, and you might -- I strongly told them that 
14 they were not to take pictures of counsel's notes. It's one 
15 thing if they take a transcript like this and -- 
16 MR. CRANE: I thought you were going to say they 
17 took a picture of his photo. 
18 THE COURT: No. That camera that's sitting in that 
19 box can photograph what you have on the podium. And if 
20 you're asking questions from something that are just your 
21 notes, that you maybe have typed up, that is accessible with 
22 that camera. I've told them not to take any pictures of it. 
23 And someone locally reported to me that they had seen things 
24 that look like transcripts come across the line. But I 
25 wanted to you be aware. And I mean, I've -- I don't know 
784 
 1 what's going on with that. 
2 MR. ROGERS: Your Honor -- 
3 THE COURT: We have a prompter over there, that our 
4 bailiff is supposed to be taking a look at, to make sure that 
5 your private personal notes, whether it's yours or the 
6 prosecutors, would not be photographed and we have an 
7 understanding locally that that's not done. And that's 
8 what -- that's what the -- in fact, I don't think they ever 
9 photograph the podium, that you might have information on. 
10 MR. ROGERS: I didn't realize there was a camera in 
11 that box. I had no idea that's what it was. 
12 THE COURT: Well, you need to smile. 
13 MR. ROGERS: Usually got the side of my head, so 
14 it's happy enough, I guess. 
15 THE COURT: I wanted you to be aware. And I don't 
16 see anyone monitoring that now. And I will, during the noon 
17 recess, have a discussion with someone. 
18 MR. ROGERS: Is there some way we can just turn that 
19 camera off? I don't see a legitimate purpose for the press 
20 to be able to photograph anything on the podium. Now, this 
21 particular document here was not on the podium during the 
22 recess, but I have had handwritten notes, I have had other 
23 police reports, I have had other things that are not 
24 transcripts, and I have had transcripts which are not in 
25 evidence -- 
785 
 1 THE COURT: Well -- 
2 MR. ROGERS: -- none of which should be photographed 
3 by those people. 
4 MR. CRANE: I don't think anyone was photographed. 
5 We'll take the appropriate precautions. They couldn't -- 
6 THE COURT: I wanted you from now on to be careful. 
7 MR. CRANE: Very good. 
8 THE COURT: And I will look into that during the 
9 noon hour. 
10 MR. CRANE: Very well. 
11 MR. ROGERS: Thank you. 
12 - - - 
13 The following proceedings were held in open court: 
14 Q. So that was March the 13th, and you were telling 
15 your mother you wanted to see everything laid out in front of 
16 you before you could make a determination. 
17 A. Yeah, I said that. That's correct. 
18 Q. Okay. And the determination you're talking about is 
19 whether what you thought were memories were accurate or 
20 inaccurate? 
21 A. I -- I'm not sure what I meant. Just in general 
22 terms how I was going to proceed from there. I don't know. 
23 Q. That was still at a time when you, in your conscious 
24 mind, were not certain that you were involved in the crime; 
25 correct? 
786 
 1 A. Yeah, that's correct. 
2 Q. And it was actually quite a while before you told 
3 the nurses you were not certain. Correct? 
4 A. That was a month. 
5 Q. Right. 
6 A. Yeah. 
7 Q. Now later, on April 24th, 2004, you had a telephone 
8 conversation with your father about whether you should be 
9 cooperating with the prosecution in this case; is that 
10 correct? 
11 A. I -- I'm not sure. 
12 Q. You're not denying that. 
13 A. No, I'm not denying that. 
14 Q. Okay. Do you recall a conversation where your 
15 father told you that if you did not cooperate, you would be 
16 looking at a substantially greater period of time to serve? 
17 A. Yes. Yeah. 
18 Q. Okay. And that was a fairly extensive conversation, 
19 wasn't it? 
20 A. I'm not sure. 
21 Q. And that conversation, however, at least one of 
22 those conversations, and there's probably been more than one, 
23 but one of those conversations occurred before you had even 
24 gotten the police reports or the discovery or had it all laid 
25 out in front of you like you were talking to your mother 
787 
 1 about; right? 
2 A. I believe so. I can't be certain. I don't deny it. 
3 Q. And even then your father was urging you to work 
4 through your attorney to reach the best plea bargain you 
5 could, wasn't he? 
6 A. I believe so, yes. 
7 Q. And he had also called in his brothers to help you 
8 in that regard, wasn't he -- hadn't he? 
9 A. No, he hadn't. 
10 Q. You hadn't talked with -- 
11 A. He may have talked to them. He didn't call anyone 
12 in to talk to me. The most I got was a letter from my -- one 
13 of my uncles. And all that really consisted of was: Don't 
14 talk about your case with people that you're locked up with. 
15 But he didn't call anyone in. No one came down here. I 
16 mean, no one came -- I didn't talk to my uncles about it. 
17 Q. Did your father to talk to your uncles about it and 
18 tell you what they thought? 
19 A. I -- 
20 MR. CRANE: Well, wait a minute now. He's asking if 
21 his dad talked to his uncles about it? That's hearsay. 
22 THE COURT: Sustained. 
23 Q. Let me tell you -- ask you this. You and your 
24 father were having an ongoing conversation about whether or 
25 not you should look for a plea agreement and testify against 
788 
 1 Mr. Ferguson, weren't you? 
2 A. Yes. 
3 Q. And part of that conversation included statements 
4 about a guy named Ed; is that correct? 
5 A. It's -- I don't deny it. 
6 Q. Okay. And who's Ed? 
7 A. Ed Guinn. 
8 Q. Who's that? 
9 A. He was the lawyer that was appointed to me when I 
10 first got arrested. 
11 Q. Okay. So that's a different person. Not one of 
12 your uncles. 
13 A. Not -- I'm sorry? 
14 Q. Ed is not one of your uncles. 
15 A. No. No. 
16 Q. But you have an uncle who is, in fact, a lawyer who 
17 practices criminal defense in Illinois; is that correct? 
18 A. That's correct, yes. 
19 Q. And to your knowledge, he had conversations with 
20 your lawyer, Mr. Kempton; is that correct? 
21 A. I don't know. I think he might have. I'm not sure. 
22 Q. As a matter of fact, at one point, when you were 
23 expressing reluctance to enter into plea agreements, your 
24 father even told you, "Look, if you're not going to 
25 cooperate, Mr. Kempton is not going to be your lawyer any 
789 
 1 more," didn't he? 
2 A. Yeah. He said there was no point, because all I 
3 would be doing would be pleading guilty at that point. I 
4 don't need a paid attorney to plead guilty. 
5 Q. And so basically he was saying, "If you don't follow 
6 the plan of cooperating and testifying against Ryan Ferguson, 
7 you're not going to have Mark Kempton; you're going to end up 
8 with a public defender." Correct? 
9 A. Yeah. That was true, yes. Because I would be 
10 pleading guilty, I wouldn't need a paid attorney for 
11 anything. 
12 Q. He didn't say, "If you don't -- if you plead 
13 guilty." What he said was: "If you decide you're not going 
14 to cooperate." 
15 A. That was my only other -- that was the only other 
16 thing I was going to do, was just to plead guilty and not 
17 testify against him. He didn't state that, no. 
18 Q. He didn't. And he told you that if you did not 
19 cooperate, the time that you would spend in prison would 
20 probably be at least 50 percent longer, didn't he? 
21 A. Yeah, I think he said that, that's correct. 
22 Q. And this is a conversation which takes place before 
23 you've even had a chance to talk to Mr. Kempton about what's 
24 in the police reports, about what you tell the police the day 
25 you're arrested, about the uncertainties that you expressed 
790 
 1 to the police on the videotapes that we saw yesterday; 
2 correct? 
3 A. I don't know. I don't know. 
4 Q. Well, you would not quarrel with me if I represent 
5 to you that this conversation -- 
6 A. You said April 24th? 
7 Q. April 24th, 2004, at 9:12 p.m.? 
8 A. I don't know if I had had my attorney talk to him or 
9 not yet. That's the honest -- 
10 Q. And you don't know if your attorney had gotten the 
11 videotapes yet. 
12 A. I don't know. 
13 Q. But as a matter of fact, on two days -- excuse me, 
14 the next day, April the 25th, you talked again with your 
15 father. 
16 A. Okay. 
17 Q. Who told you that in the meantime he had talked to 
18 Mr. Kempton, who had gotten the police reports and 
19 videotapes. 
20 A. Okay. 
21 Q. So if Mr. Kempton didn't get them -- didn't tell 
22 your father he had them the next day, you certainly hadn't 
23 had a chance to talk about them with Kempton, had you? 
24 A. I suppose no, that I hadn't. 
25 Q. So the decision to cooperate in your father's mind 
791 
 1 had been made pretty well before -- 
2 MR. CRANE: I'm going to object to when his father's 
3 mind had various thoughts. 
4 MR. ROGERS: I'll rephrase it. 
5 Q. Before you'd had a chance to look at the 
6 information, before you had a chance to review the 
7 videotapes, your father was urging you to plead guilty and to 
8 testify against Mr. Ferguson. Is that a fair statement? 
9 A. I don't know if I would use the word "urging." 
10 I'm -- I'm not sure. He didn't really know exactly what was 
11 going on at all. I mean completely. But if I was guilty of 
12 it and what I said was true, then he -- he thought that yes, 
13 I should plead guilty and that I should testify against Ryan 
14 Ferguson. 
15 Q. And that's what he was saying during that 
16 conversation on April the 24th. 
17 A. That's correct. 
18 Q. And he was saying: "You're going to get less time. 
19 Do it that way." Right? 
20 A. Yes, that's correct, yes. 
21 Q. Okay. Now let's talk a little bit about your plea 
22 agreement here. You've told us I believe on direct 
23 examination that you have agreed to a sentence of 15 years 
24 for the offense of murder in the second degree; is that 
25 correct? 
792 
 1 A. That's correct. 
2 Q. And murder in the second degree is a class A felony, 
3 punishable by a range -- a term of years between 10 and 30, 
4 is that correct, or life imprisonment. 
5 A. I don't know. I'm not sure. I know it -- I thought 
6 it was 10 to 25, but I could be wrong. 
7 Q. Okay. And you've also said that you anticipate the 
8 concurrent term of 15 years for robbery in the first degree. 
9 A. That's correct. 
10 Q. And do you know that the range of punishment for 
11 robbery in the first degree, it's another class A felony, 
12 not -- a term of years between 10 and 30 or life 
13 imprisonment. 
14 A. Okay. 
15 Q. Okay? And you also anticipate a consecutive term of 
16 10 years for armed criminal action; correct? 
17 A. That's correct. 
18 Q. And armed criminal action is an unclassified felony 
19 that has a range of punishment for the first offense of not 
20 less than three years; correct? 
21 A. Yeah. 
22 Q. And it's your understanding that, if you are 
23 sentenced in accordance with that agreement, you will have to 
24 serve, on the 15-year -- two 15-year concurrent sentences, 
25 about 12 and a half years? 
793 
 1 A. 12 years and nine months. 
2 Q. 12 years and nine months. And that's because second 
3 degree murder is one of the offenses for which someone must 
4 serve 85 percent of their term before they're eligible for 
5 parole. 
6 A. Yes. 
7 Q. It's also your understanding that, even though the 
8 consecutive term of 10 years for the armed criminal action, 
9 even though that's a consecutive sentence, and even though 
10 under the law armed criminal action is punishable by a 
11 minimum of three years without parole eligibility -- right? 
12 A. Yes. 
13 Q. -- that it's your understanding that in your 
14 circumstances the parole board would have the discretion to 
15 credit that three years for the 12 years and nine months you 
16 have to serve on the murder sentence; correct? 
17 A. That's correct. 
18 Q. So you are hoping that, as a result of your plea 
19 agreement in this case, you will be released 12 years and 
20 nine months after your arrest on March 10th. 
21 MR. CRANE: Objection, Judge. The plea agreement, 
22 nor anything that the state or this Court would do with 
23 respect to the defendant in terms of his parole -- 
24 THE COURT: You mean the witness. 
25 MR. CRANE: The witness. When he -- I mean, he's 
794 
 1 still a defendant. 
2 THE COURT: I understand that. 
3 MR. CRANE: Would -- the parole board is not 
4 contemplating an agreement. That misstates the agreement. 
5 And it's also asking for a legal conclusion from this 
6 witness, because the parole -- the board of probation and 
7 parole doesn't have anything to do with agreements on 
8 sentencing. 
9 MR. ROGERS: I think I'm entitled to inquire about 
10 the witness's hope and expectations as a result of the plea 
11 agreement, Your Honor. 
12 THE COURT: Well, you may do that, but you may not 
13 ask it in the context of that's what's going to happen as a 
14 result of the plea agreement, because I don't believe 
15 probation and parole is a party to that agreement. 
16 MR. ROGERS: The parole board is not, Your Honor, 
17 but I think -- my question was: That his hope is: That, as 
18 a result of the sentence contemplated by the agreement, he 
19 would be released 12 years and nine months -- 
20 A. As soon as possible, that's my hope, yes. 
21 Q. And -- 
22 A. Is that my expectation? I don't know what to 
23 expect. 
24 Q. You don't know what to expect. 
25 A. No. 
795 
 1 Q. But that's your hope. 
2 A. That's my hope. 
3 Q. And you've been advised by your lawyer, prior to 
4 your guilty plea and prior to your signing the plea 
5 agreement, that that's the best you can hope for. 
6 A. That's what he told me, yes. 
7 Q. 12 years and nine months from the date of your 
8 arrest, March 10th. 
9 A. That's correct. 
10 Q. Now, you indicated I believe on direct examination 
11 that you are currently on some sort of psychotropic 
12 medication; is that correct? 
13 A. Yes. 
14 Q. And what are you currently taking? 
15 A. Prozac. 
16 Q. And is that for your obsessive-compulsive symptoms? 
17 A. Yes. 
18 Q. And how long have you been taking that? 
19 A. Since May. 
20 Q. Since May of -- 
21 A. Of this year. 
22 Q. -- this year? And before that you were taking 
23 another psychotropic drug called Lexapro? 
24 A. That's correct. 
25 Q. How much Prozac are you taking? 
796 
 1 A. 60 milligrams. 
2 Q. 60 milligrams a day? 
3 A. Yes. 
4 Q. And how much Lexapro were you taking? 
5 A. I don't know. It was the smallest dose available. 
6 Q. In that connection, have you been seeing a 
7 psychiatrist at the jail? 
8 A. I've had to see a psych nurse in order to keep my 
9 medication. I've got to see her every five weeks, something 
10 like that. I talk to her briefly. 
11 Q. And the last time you saw that psych nurse was 
12 October 12th? 
13 A. Of this month? 
14 Q. Yes. 
15 A. Yeah, I believe that's right. 
16 Q. Last week. 
17 A. Yeah. Yeah, I believe that's right. 
18 Q. And last week is the first time you had ever told 
19 that psych nurse anything about wanting help dealing with the 
20 memory problems. Correct? 
21 A. I don't believe I asked her for help to deal with my 
22 memory problem. 
23 Q. Did you tell the psych nurse that you were still 
24 working on how you could not remember situations and then 
25 have things trigger recollection? 
797 
 1 A. Not in those words, no. 
2 Q. Have you had a chance to look at your progress 
3 notes? 
4 A. No. 
5 Q. Would you like a chance to look at your progress 
6 notes? 
7 A. Okay. 
8 Q. I'm showing you October 12th, 2005. 
9 (Witness reading document.) 
10 A. I -- what I was talking to her about was how I was 
11 going to explain that to people. Because it's not something 
12 that's easy to explain. It's not an every day occurrence. 
13 Q. Okay. 
14 A. It wasn't a -- it wasn't about -- 
15 (Discussion off the record between counsel.) 
16 Q. So you were asking the psychiatric nurse, who you 
17 see every five weeks to monitor -- 
18 A. Well, this was a new person. I'd seen one lady, 
19 named Pascha. And I saw her every time. And then this -- I 
20 don't remember her last name. Her first name was Sara. That 
21 was the first time I had ever seen her and the first time I 
22 ever met with her. 
23 Q. But you're asking her for advice about how to 
24 explain to people, this jury and this Court, your changes in 
25 memory; correct? 
798 
 1 A. Well, I was -- I was -- I don't know if I was doing 
2 that. I was trying to see how normal it was. You know. I 
3 was asking her questions about repressed memory and questions 
4 about post-traumatic stress disorder and things like that. 
5 And I asked her how normal it was. I don't -- I don't 
6 believe that I ever asked her to help me explain. You know, 
7 I was having -- I was having some problems articulating what 
8 was going on in my mind and how my memories have progressed 
9 over time. And -- and, you know, I was trying to come to a 
10 conclusion that -- about why that took place and what was -- 
11 you know, what has happened here, you know. I mean, I was -- 
12 I wanted an answer, just like everyone else. 
13 Q. So is it fair to say that some of the things that 
14 you have told us yesterday and today about how you believe 
15 your memory works have been aided by this consultation about 
16 how to express things? 
17 A. No. 
18 Q. Okay. Is it fair to say that you saw the other 
19 psychiatric nurse, Pascha, last on November -- excuse me, 
20 September 18th of this year? 
21 A. That might be correct. I'm not sure of the date. 
22 Q. And is it fair to say that at that time your memory 
23 was intact? 
24 A. I don't -- I don't know if I said that or not. 
25 (Mr. Rogers showing a document to the witness.) 
799 
 1 A. That's what she -- yeah, that's what she put down. 
2 I mean, these are two different people also. 
3 Q. Right. 
4 A. Yeah. 
5 Q. And on July -- 
6 A. It wasn't I was having memory problems. I was 
7 trying to explain the prior problems I'd had with my memory. 
8 Q. But at each time before that, when you would see the 
9 psychiatric nurse, your memory was always reported as intact, 
10 wasn't it? 
11 A. I don't know how she recorded it. That was the 
12 first time I had even seen a box with "memory" next to it. I 
13 didn't -- I mean, I didn't -- I know -- I knew that she 
14 checked things off at the end real quick and then I had to 
15 sign it. Things about -- all sorts of stuff. 
16 Q. Right. 
17 A. But I mean, I don't even think that -- I mean, I had 
18 mentioned to her before, Pascha, that I had memory problems, 
19 and that there were some things I couldn't remember for a 
20 long time, and some things I still can't remember. And -- 
21 but I never believed -- she -- we never really got talking to 
22 my case -- about my case a whole lot. 
23 Q. Well, in terms of your psychiatric condition and 
24 your memory, isn't it fair to say that on July 21st, 2004, 
25 your memory was intact? 
800 
 1 A. That's what she says. I don't know if my memory was 
2 intact or not. That's what she put down there. That's her 
3 opinion. And I don't believe she ever asked me about my 
4 memory. 
5 Q. How about on September 10th, 2004? 
6 A. Is that what it says there? "Intact"? 
7 Q. Uh-huh. 
8 A. Well, that's what she put there. I don't know if 
9 that's true or not. 
10 Q. And is that your signature at the bottom? 
11 A. That's my signature. 
12 Q. Okay. 
13 A. Did I read that before I signed it? No, I didn't 
14 read it. I just signed it because I had been signing it the 
15 entire time. 
16 Q. And on October 29, 2004, "intact"? 
17 A. That's what it says, yes. 
18 Q. Your signature? 
19 A. Yeah. 
20 Q. And on December 31st, 2004, "intact." 
21 A. That's what it says, yeah. 
22 Q. Your signature? 
23 A. Yeah, that's -- let me see that. 
24 That's not my signature. 
25 (Mr. Rogers showing a document to the witness.) 
801 
 1 A. That -- those aren't my signatures. 
2 Let me see that, man. 
3 Let me see this. 
4 (Witness looking at documents.) 
5 A. These are the same copies of the same page. That's 
6 not my signature either. Let me see. Yeah. These aren't -- 
7 Q. Those are not your signature. 
8 A. That's correct. 
9 Q. None of them are. 
10 A. Oh, no. Actually this one right here is my 
11 signature. 
12 Q. Okay. But that's not one I've shown you before. 
13 That's a different form. 
14 A. That's correct. 
15 Q. Okay. So when you told us that was your signature 
16 before on any of those pages, that was not. 
17 A. I thought it was, yeah. 
18 Q. But it's not. 
19 A. No, it's not. 
20 Q. Okay. But you're not disputing that -- 
21 A. I don't know what she marked. 
22 Q. -- the box "intact" is checked there on your 
23 records. 
24 A. I don't know if that's mine, because I didn't -- my 
25 name's up there, but I didn't sign that. 
802 
 1 Q. Okay. On March 21st, 2005, your name's up there 
2 again. Correct? 
3 A. Yeah. 
4 Q. "Intact"? 
5 A. That's what it says. And I didn't sign that either. 
6 Q. Didn't sign this. 
7 The next day, March 22nd, 2005, "memory intact"? 
8 A. That's what it says. Let me see that one. 
9 No -- 
10 Q. Not your signature? 
11 A. No, that's not mine either. 
12 Q. But your name's on the top. 
13 A. My name is on top, yeah. That's right. 
14 Q. May 12th, 2005, "memory intact"? 
15 A. That's -- yeah. I didn't write that, though. She 
16 put that there. 
17 Q. June 14th, 2005, "memory intact." 
18 A. That's what's marked on that page, yeah. 
19 Q. June 28, 2005, "memory intact." 
20 A. That's what it says. 
21 Q. July 29, 2005, "memory intact." 
22 A. Yep. It's marked right there. 
23 Q. And we've already talked -- 
24 MR. CRANE: Judge, I -- you know, we're willing to 
25 agree that everywhere -- I mean -- and I don't know, maybe 
803 
 1 there's one I missed, that his memory's intact. We're 
2 willing to agree his memory's intact now. We're willing to 
3 agree his memory is intact then. I don't know whether he 
4 signed the things, but -- 
5 A. No, I didn't sign any of those. 
6 MR. ROGERS: Is there an objection pending? 
7 MR. CRANE: No. I'm just trying to move things 
8 along. If you're trying to establish that his memory's 
9 intact on those pieces of paper, I'm all for you. 
10 MR. ROGERS: I don't think it's your turn to make 
11 speeches. 
12 MR. CRANE: I'm not making a -- I'm just stipulating 
13 that the jail records indicate his memory was intact, unless 
14 there's one I missed. 
15 MR. ROGERS: Would you stipulate that the jail 
16 records indicate he made no complaints about his memory until 
17 the week before he was supposed to testify here on behalf of 
18 the state? In which case he -- 
19 MR. CRANE: Actually there some notes where he talks 
20 about not wanting -- 
21 MR. ROGERS: Excuse me. 
22 MR. CRANE: Oh, you don't want me to answer that 
23 question? 
24 MR. ROGERS: If you're not willing to make that 
25 stipulation, then let's -- allow me to proceed with my 
804 
 1 cross-examination of your witness. 
2 MR. CRANE: Okay. 
3 A. I didn't state -- 
4 Q. Excuse me. There's not a question pending. 
5 Isn't it true, Mr. Erickson, that you did not 
6 complain to the psychiatric nurse that you've seen 
7 periodically over the last year and a half about any problems 
8 with your memory until last week, when you sought advice 
9 about how to explain your position about having not 
10 remembered things at one point and claiming to remember them 
11 now? Isn't that true? 
12 A. No. I wasn't discussing problems with my memory 
13 now. I was discussing problems with my memory in the past. 
14 And I was discussing how I was going to go about explaining 
15 that. And I was just -- I asked her if she ever seen 
16 anything, any other instances in which that occurred. I 
17 didn't tell her that I had problems remembering what happened 
18 now. I didn't say that I didn't remember hitting 
19 Mr. Heitholt in the head with a tire tool and him strangling 
20 him with a belt, if that's what you're getting at, which is I 
21 think what you're getting at. 
22 Q. Are you done? 
23 A. That's -- yeah, that's all I had to say. 
24 Q. My question is: Isn't it true -- 
25 A. No, it's not true. 
805 
 1 Q. -- that last week is the first time you told anybody 
2 there about anything having to do with your memory? 
3 A. No, that's not true. 
4 Q. Okay. Isn't it true that the records as far back as 
5 July of 2004 reflect that you reported no problems with your 
6 memory and your memory was intact? Consistently until last 
7 week, when it has the notation that you previously explained 
8 to us. 
9 A. No. No. I've mentioned things about my memory 
10 plenty of times. If she didn't mark it down, she didn't mark 
11 it down. We really didn't get into that much detail about my 
12 case. And plus, I was seeing one person the entire time, and 
13 then I -- the last person I saw was a completely different 
14 person, who I had never met with before. 
15 Q. My question is: Isn't it true -- 
16 A. No. 
17 Q. -- that the records that we have -- 
18 A. Yeah, the records, that's correct. 
19 Q. -- reflect -- 
20 A. Yeah. 
21 Q. -- that you never had any problems with your memory 
22 until you had that one notation from last week? 
23 A. Yeah, I'll agree with that, but I -- I don't think 
24 that that notation necessarily stated that I had a problem 
25 with my memory. 
806 
 1 Q. But -- and you've previously explained that 
2 notation. 
3 A. Yes, I did. 
4 Q. Okay. And you agree that you initially explained 
5 that notation as saying you wanted advice about how to 
6 communicate to people your beliefs that you had done 
7 something, forgotten it, and then somehow recovered those 
8 memories. 
9 MR. CRANE: Objection. That misstates -- there is 
10 absolutely no foundation for that question. The question's 
11 been asked and answered in various forms, but the basis for 
12 that question, if you're referring to October 12, '05, is not 
13 here. 
14 THE COURT: You want to approach the bench? And 
15 bring the record with you, please. 
16 - - - 
17 Counsel approached the bench and the following 
18 proceedings were held: 
19 THE COURT: Let me look at the record. 
20 MR. CRANE: If that's what he's referring to. 
21 MR. ROGERS: I'm referring -- 
22 THE COURT: Let me just look at the record. 
23 MR. ROGERS: Okay. 
24 (Court looking at document.) 
25 MR. CRANE: I highlighted that at one point because 
807 
 1 I thought that's what he was referring to. 
2 THE COURT: Okay. Your objection is? 
3 MR. CRANE: The question that just got asked has no 
4 basis in that document. If he is asking, "Isn't it true 
5 that, when you talked to the nurses on" -- 
6 MR. ROGERS: That's not the question. 
7 MR. CRANE: -- whatever that -- okay. What was the 
8 question? 
9 MR. ROGERS: The question that I asked him was 
10 whether he had explained that notation earlier today by 
11 claiming that that's what he was doing; asking for advice on 
12 how to explain to people his -- 
13 MR. CRANE: Well, that doesn't make -- I don't know. 
14 I think that is a question that's virtually impossible for 
15 him to answer. You're asking him if what he said earlier 
16 today about this document -- I mean, I'll object to the form 
17 of the question. I don't know how the witness can answer 
18 that. Can it be reformed? I mean, that's just -- that is -- 
19 well, that's my objection. 
20 THE COURT: The objection is sustained. Please 
21 rephrase your question. 
22 MR. ROGERS: Okay. 
23 - - - 
24 The following proceedings were held in open court: 
25 Q. Remember the note from last week, on the psychiatric 
808 
 1 -- jail psychiatric records that I showed you when we first 
2 started talking about this subject? 
3 A. Let me see it again. If you don't mind. Just 
4 because I don't want any more confusion. 
5 Q. Okay. This is, just to show you what we're talking 
6 about, October 12, 2005. Your name up there. No signature 
7 at the bottom, except the nurse's. 
8 (Witness reading document.) 
9 A. Yeah, that says that here. 
10 Q. Okay. 
11 A. Yeah, that's what that says. 
12 Q. Remember when I showed you that note, it seems like 
13 forever ago, but probably about 20 minutes ago? For the 
14 first time? 
15 A. Yeah. 
16 Q. And isn't it true that you told us then that what 
17 you told the nurse was that you were looking for a way to 
18 explain to people what you claimed had happened with regard 
19 to forgetting and then remembering -- 
20 A. Yeah. I was having problems articulating what was 
21 going on in my mind. Yeah. That's true. 
22 Q. And so you were asking that nurse -- 
23 A. No. I -- 
24 Q. -- for help in articulating. 
25 A. I didn't ask her help for anything. I told her -- I 
809 
 1 explained to her my memory problems. And I explained to her 
2 what was going on in my mind. And then she -- she said, yes, 
3 you know, that's -- 
4 Q. I'm not asking you what she said. 
5 A. Well, no, I didn't ask her for advice about how to 
6 explain it, no. 
7 Q. Okay. And so if you told us that earlier, that 
8 would have been a mistake. 
9 A. If I told you that earlier. 
10 Q. Now, earlier we talked about your conversation with 
11 Mr. Nichols about the cleaning lady; right? 
12 A. Yeah. 
13 Q. And where Nichols told you that you were making 
14 accurate presumptions that you would only know if you were 
15 there? Do you remember that? 
16 A. Yeah. 
17 Q. And you told him, "Like what? The cleaning lady?" 
18 He said, "That's one." And you told him, "That was in the 
19 newspaper." Correct? 
20 A. I told him that -- well, I -- yeah, I said that, but 
21 what I meant by that is that I read the newspaper that the 
22 cleaning lady or janitor got help. 
23 Q. Okay. And he goes on to say, "Well, no. About what 
24 was specifically said to that lady." And you said, "She went 
25 to get help. I mean." Right? Do you remember that from the 
810 
 1 videotape? 
2 A. Could you re -- could you rephrase that or reask 
3 that -- ask that question again? Because I'm confused. I'm 
4 not sure. 
5 Q. Let me read to you the entire -- or just part of the 
6 exchange. Let me put it that way. 
7 A. Okay. 
8 Q. And you know what we're talking about on the 
9 videotape? 
10 A. Yeah, I know what you're talking about. 
11 Q. "Well, you're making accurate presumptions that, 
12 like I said, you would only know if you were there." "Like 
13 what? The lady, the cleaning lady?" "That's one." "That 
14 was in the newspaper." "Well, no. About what was 
15 specifically said to that lady." "She went to get help. I 
16 mean." Right? Is that what we're talking about? Do you 
17 remember that, on the videotape? 
18 A. Yeah. Did I say that? I -- if that's what was on 
19 the videotape, then that's what I said, that's correct. 
20 Q. Okay. Now, what you're now telling us is that the 
21 cleaning lady had been mentioned in the newspaper. That you 
22 remembered that from reading the newspaper in November of 
23 2003. Is that correct? 
24 A. I don't remember when I read that. 
25 Q. So you don't remember reading in the Columbia 
811 
 1 Tribune -- 
2 A. No, I remember reading it at some point; I just 
3 don't know when I read it. 
4 Q. Okay. And "The cleaning lady witnessed two white 
5 college-age men duck behind Heitholt's car"? 
6 A. Yes. 
7 Q. You remember reading that. 
8 A. Yeah. I think. 
9 Q. Okay. 
10 A. I think. 
11 Q. Now let's put this back into context. You have 
12 already talked to Short, in the statement that was not 
13 recorded; correct? 
14 A. Uh-huh. 
15 Q. You've talked to Short in the videotaped statement; 
16 right? 
17 A. Uh-huh. 
18 THE COURT: Is that yes or no? 
19 THE WITNESS: Yes. I'm sorry. 
20 Q. You have talked to Nichols and the other two 
21 detectives during the drive-around. Right? 
22 A. Yes. 
23 Q. And now you're talking to Nichols on videotape. 
24 Correct? 
25 A. Yes. 
812 
 1 Q. Isn't it true that when you were talking to Short, 
2 in the nonvideotaped part, that you told Short, after you saw 
3 the cleaning lady, you sat down beside the vehicle and became 
4 physically ill. 
5 A. I'm not sure if I said that then or not. 
6 Q. Okay. But isn't it true that Short, later in that 
7 conversation, introduced the topic of saying something to the 
8 cleaning lady? 
9 A. No. I said that in a prior conversation. 
10 Q. We're talking about your first conversation with 
11 Short. 
12 A. My first conversation with Short, I told him that I 
13 told the cleaning lady, "Go get help." He didn't introduce 
14 that to me whatsoever. 
15 Q. Okay. So if Short says that he asked you if you had 
16 said something to the cleaning lady before or after Ferguson 
17 had strangled the victim, and you said that you did not know, 
18 you thought you may have said something to the lady at that 
19 time, but was not sure, is that inaccurate? 
20 A. Did I say that? 
21 Q. Did you say to Short -- 
22 A. I believe -- 
23 MR. CRANE: Judge, if I may object. At what point 
24 is -- is this the very first interview with Short? 
25 MR. ROGERS: Yes. 
813 
 1 MR. CRANE: Okay. 
2 MR. ROGERS: Very first interview. The one we don't 
3 have the videotape of. 
4 MR. CRANE: Okay. And also the one that you're 
5 using that again as a kind of a transcript? 
6 MR. ROGERS: No. I'm going to ask him whether or 
7 not he said what it says he says. And then if he denies it, 
8 we'll have to call Mr. Short to prove it up. 
9 MR. CRANE: Okay. Okay. 
10 MR. ROGERS: Or you'll call Mr. Short and we'll 
11 prove it up on cross. 
12 MR. CRANE: Okay. 
13 MR. ROGERS: Something. 
14 Q. Okay. Do you recall saying in response to 
15 Mr. Short's question of you during that interview, about 
16 whether you had said something to the cleaning lady, that you 
17 did not know, you thought you said something to her, but were 
18 not sure. 
19 A. I don't know if I said that or not. I may have said 
20 that. 
21 Q. You may have said that. And do you recall Short 
22 telling you that the cleaning lady told the police that 
23 someone asked for help? 
24 A. That wasn't until after I told Short that I had told 
25 the cleaning lady to go get help. I said that before anyone 
814 
 1 said anything to me about a cleaning lady going and getting 
2 help and anyone saying anything about anyone telling a 
3 cleaning lady to go get help. 
4 Q. So you're saying that if Short were to say that he 
5 told that to you before you had said that you were sure you 
6 had said anything to the cleaning lady, that would be 
7 inaccurate. 
8 A. That would be inaccurate. 
9 Q. So you're denying that Short told you -- 
10 A. He may have said something before that, but I said 
11 something before he said something to me. Do you follow me? 
12 Q. And so if Officer Short were to testify that after 
13 he told you the cleaning lady told the police that someone 
14 asked for help, you said that was you, that would be 
15 inaccurate too. 
16 A. No. No. That wouldn't be inaccurate. 
17 Q. Okay. So -- we're talking about the one that's not 
18 on the videotape. 
19 A. Yeah. But I'm saying that wasn't the first time 
20 that was said, which is what you're trying to portray. 
21 Q. Okay. And so -- the question is: Before Detective 
22 Short told you anything that the cleaning lady had told the 
23 police, are you saying that you told Short for sure, 
24 definitely, "I told the cleaning lady, 'Go get help.'" 
25 A. Yes. 
815 
 1 Q. For sure. 
2 A. For sure. Definitely. 
3 Q. And that -- if you said that you did not know, you 
4 thought you may have said something to the cleaning lady at 
5 the time, but were not sure, that would be inaccurate, as to 
6 what he told you. 
7 A. I may have said that afterwards. I'm not sure -- 
8 I'm not denying it. I don't know if I said that or not. 
9 Q. Did you tell us yesterday that, when you were 
10 talking to your friends about this before your arrest, that 
11 you were seeking their advice about things? 
12 A. Yes. 
13 Q. And one of the things that you were considering 
14 doing was submitting your DNA to the police so that they 
15 could test it against whatever DNA standards they had? 
16 A. Yes. 
17 Q. So that they could confirm or disconfirm your 
18 feelings that you might have been involved? Is that fair? 
19 A. They could have confirmed it. I don't think they 
20 would -- whether or not the tests came back positive or 
21 negative -- if they would have come back negative -- let me 
22 put it this way: If they would have come back negative, it 
23 wouldn't have disconfirmed my memory. It wouldn't, you know, 
24 rid me of the memories that I had of that night. 
25 Q. But this was a time if you didn't know if these were 
816 
 1 memories or dreams. 
2 A. No. I think I knew that they were memories. I was 
3 hoping they were dreams. 
4 Q. Well, you were telling your friends you didn't know 
5 if they were memories or dreams. 
6 A. I thought that they were -- I told them I thought 
7 that they were memories. And that I was hoping they were 
8 dreams, but I wasn't sure what to do. 
9 Q. Well, let me clarify that a little bit. Isn't it 
10 true that the only time that you talked to your friends about 
11 these memories or dreams was when you yourself had been 
12 drinking. 
13 A. Yes. 
14 Q. And, in fact, you had been drinking and taking 
15 cocaine at the New Year's Eve party where you confronted 
16 Mr. Erickson. 
17 A. Ferguson. 
18 Q. Ferguson. I'm sorry. 
19 A. Yeah. 
20 Q. Thank you. And when you talked with Mr. Gilpin, you 
21 were drinking. 
22 A. Yes. 
23 Q. In fact, you were so intoxicated at that point that 
24 you had Mr. Gilpin drive your car. 
25 A. Yeah, I had him driving my car. I didn't want to 
817 
 1 drive. 
2 Q. Because you were too drunk to drive. 
3 A. I thought I -- I don't know if I could have driven 
4 or not. I wasn't going to chance it. 
5 Q. And you had Mr. Gilpin drive you, even though he had 
6 been drinking as well. 
7 A. That's correct. 
8 Q. Okay. And when you talked to Art Figueroa, you had 
9 been drinking. 
10 A. Yes. 
11 Q. And you told Art Figueroa that you were not 
12 consciously certain that those were accurate memories and 
13 that they could be something you dreamed about. Or something 
14 that you dreamed up. Didn't you? 
15 A. I don't know if I said it was something I dreamed 
16 up. I think I may have said that I wasn't sure whether they 
17 were a dream or memories. 
18 Q. Okay. And do you recall giving a deposition in this 
19 case back in June, June 30th, the last day of June of this 
20 year? 
21 A. Yeah. That's correct. 
22 Q. And that was -- 
23 A. I think it was June 30th. 
24 Q. -- here in this courthouse, downstairs in 
25 Mr. Crane's office. 
818 
 1 A. Yeah. 
2 Q. And I was there. 
3 A. Yes. 
4 Q. Mr. Crane was there. 
5 A. Yes. 
6 Q. Mr. Weis was there. 
7 A. Mr. -- Mr. who? 
8 Q. Mr. Weis. The other bald guy. 
9 A. Oh. Okay. Yeah. And -- 
10 Q. Mr. Knight. 
11 A. Huh? 
12 Q. Mr. Knight there for part of it? 
13 A. No. I can't remember -- Elizabeth -- 
14 Q. The assistant prosecuting attorney? 
15 MR. CRANE: No. I think he's talking about part of 
16 your defense team. 
17 Q. Miss Benson. 
18 A. Kathryn Benson, yes. 
19 Q. She was there for part of it. 
20 A. Yeah. 
21 Q. And speaking of your conversation with Mr. Figueroa, 
22 do you recall the following -- let me first ask you: In a 
23 deposition, you're sworn under oath to tell the truth, aren't 
24 you? 
25 A. Yeah, that's correct. 
819 
 1 Q. And I, when I started asking you questions, made 
2 sure that you would let me know if you didn't understand the 
3 question? Correct? 
4 A. That's correct. 
5 Q. And do you recall the following questions being 
6 asked and the following answers being given concerning your 
7 conversation -- 
8 MR. CRANE: Where did you say you were? 
9 MR. ROGERS: Page 136, beginning at line 23. 
10 MR. CRANE: Thank you. 
11 THE COURT: If you'll wait a minute, I'll let the 
12 witness take a look at the deposition. 136, line -- 
13 MR. ROGERS: Beginning at line 23. 
14 (The Court handing a copy of the deposition to the 
15 witness.) 
16 Q. Ready? 
17 A. Yeah. Go ahead. 
18 Q. "QUESTION: Okay. And did you tell him that you 
19 were not consciously certain that these were accurate 
20 memories? And that they could be something you dreamed about 
21 or something that you dreamed up?" And your answer was 
22 "Yes." 
23 A. Okay. 
24 Q. Is that correct? 
25 A. Yeah, that's right. 
820 
 1 Q. And then I went on to ask you: "Okay. And that was 
2 after your conversation with Nick." Referring to Nick 
3 Gilpin. Correct? 
4 A. Yeah, that's correct. 
5 Q. And your answer was: "Yes." And question: "Was 
6 that an accurate description of your conscious mind at that 
7 time?" Again you answered: "Yes." Is that correct? 
8 A. That's correct. 
9 Q. Okay. Thank you. 
10 THE COURT: You can be seated. 
11 Q. You may need that in a minute. 
12 Now, back in June of this year, what type of 
13 footwear did you believe that you had worn to By George's on 
14 Halloween night, 2001? 
15 A. I couldn't -- I -- I'm not sure. I believe I said 
16 boots or tennis shoes. 
17 Q. Okay. And when we say "boots," what did you mean by 
18 boots? 
19 A. Timberland boots or American Eagle boots. 
20 Q. And what kind of boots are American Eagle boots? 
21 A. There's a brand of clothes, it's American Eagle, and 
22 they're -- they're boots. They're cut off at the ankle. 
23 They're just -- 
24 Q. Are they western boots, with pointy toes? 
25 A. No. They're just, you know, like the boots that 
821 
 1 preppy kids wear. 
2 Q. All right. And the soles of those boots are made 
3 out of what? 
4 A. I believe rubber. 
5 Q. And do they have a tread or do they have an 
6 insignia? What do they have on the bottom of the sole? 
7 A. I believe they had an -- they had an "AE" on the 
8 sole. An "A" and an "E" for American Eagle. 
9 Q. Okay. 
10 A. Yes. 
11 Q. And you also had -- you also mentioned Timberland 
12 boots? 
13 A. Yeah. 
14 Q. What kind of boots are those? 
15 A. They're kind of -- they've got -- they're like snow 
16 boots, kind of. I mean -- you know, like you see the guys 
17 with the baggy pants and the big Timberland boots in 
18 magazines and -- the boots that go up to, like, above the 
19 ankle, to about -- to about the calf. 
20 Q. Okay. 
21 A. They're tan. I can't remember the tread patterns on 
22 those, though. 
23 Q. And then you said you might have worn tennis shoes? 
24 A. Yeah. It's possible. 
25 Q. And do you recall what brands of tennis shoes you 
822 
 1 owned in October of 2001? 
2 A. I believe I had -- 
3 MR. CRANE: You know what, Judge? This got asked 
4 and answered. I realize it was a long time ago, it was 
5 yesterday, but he asked him what kind of shoes he had back in 
6 2001 yesterday. 
7 Remember, this is when you asked him what size shoe 
8 and all that? 
9 MR. ROGERS: I remember asking him that, but I... 
10 Q. Let me ask you this. The only kinds of tennis shoes 
11 that you owned in October of 2001 were Nike, K-Swiss, and New 
12 Balance; is that correct? 
13 A. Yes. 
14 Q. Okay. Now, did you tell us yesterday that you 
15 didn't see anybody you knew at By George's? 
16 A. No, I didn't say that. 
17 Q. Did you see anybody you knew at By George's? 
18 A. Yes, I did. 
19 Q. Okay. Who did you see that you knew? 
20 A. I saw Melissa Griggs. I saw Daniel Igleheart. I 
21 saw Julie Dunn. I saw Kristen Blankenship. I saw Matt Gay. 
22 And I saw Mills Menser. 
23 Q. You saw who? 
24 A. Mills Menser. 
25 Q. Okay. Now, who is Danny Igleheart? 
823 
 1 A. He's my friend David Igleheart's brother. And 
2 he's -- he's deceased. 
3 Q. Did you talk to him? 
4 A. Yes, I did. I asked him for a ride home. 
5 Q. And did he give you a ride home? 
6 A. No, he didn't. 
7 Q. Why not? 
8 A. Because he was there with friends. 
9 Q. Pardon? 
10 A. He was there with friends, enjoying himself. 
11 Q. He didn't want to leave? 
12 A. Yeah. I wanted to go home. 
13 Q. Do you remember giving your deposition, again on 
14 June 30th? 
15 A. Yeah, I remember doing that. 
16 Q. Did you at any time during that deposition mention 
17 seeing David Igleheart? 
18 A. Daniel Igleheart? 
19 Q. Daniel. I'm sorry. 
20 A. I don't know if I did or not. 
21 Q. Okay. When -- you say Mr. Igleheart's deceased? 
22 A. That's correct. 
23 Q. When did you learn that? 
24 A. He died about two years ago. 
25 Q. Okay. Before your arrest. 
824 
 1 A. Yes. Actually, it's probably about three years ago 
2 now. 
3 Q. Did you tell us yesterday that you and Mr. Ferguson 
4 would separately leave By George's to go smoke cigarettes? 
5 A. I believe I stepped out one time to smoke a 
6 cigarette. I don't know whether Ferguson did or not. 
7 Q. Okay. So cigarette smoking was not allowed in the 
8 bar. 
9 A. I don't remember if it is -- if it was or not. I 
10 just remember I wanted to step outside, because it was loud 
11 and noisy and there were a lot of people in the bar. It was 
12 nice to get some fresh air. Well, despite the cigarette I 
13 guess. 
14 Q. So you are now saying -- yesterday you told us that 
15 you and he both went outside to smoke cigarettes. Now you're 
16 saying that you think you may have gone outside once to get 
17 away from the noise. Is that fair? 
18 A. That's correct. I don't know if he did or not. And 
19 I don't know if I said that he did or not. 
20 Q. Now, is it your testimony today that after you got 
21 to the alley behind the Tribune building -- 
22 MR. CRANE: Could you make a record of what he's 
23 looking at there, please? 
24 Q. Showing -- indicating the building on State's 
25 Exhibit 9. -- that you saw Mr. Heitholt already out in the 
825 
 1 parking lot? 
2 A. No. I believe we saw him in the alley, and he -- 
3 when we -- when we were across Providence, and we saw him 
4 walking out of the building. 
5 Q. Okay. And that you then crossed Providence and went 
6 up that alley yourself after he went into the parking lot? 
7 A. Well, Ryan was with me. Yes, that's -- yes. 
8 Q. Okay. And that, after that, you saw another man 
9 come out of the building. 
10 A. I don't know if we saw him or we heard him. 
11 Q. Did another man come out of the building after you 
12 had already seen Heitholt -- 
13 A. Yeah. Yes. 
14 Q. -- cross the alley? 
15 A. Yeah. 
16 Q. And that's for sure. 
17 A. That's for sure. 
18 Q. And where did that man go? 
19 A. I believe he went to his car. I'm not sure exactly 
20 where he went, but I believe he went to his car. 
21 Q. Was his car in the same parking lot as Heitholt's 
22 car? 
23 A. Yeah. That's correct. 
24 Q. And did you see him go to his car? 
25 A. No. 
826 
 1 Q. Did you see him cross the alley? 
2 A. Yes. 
3 Q. Did you see him walk out of your sight? 
4 A. Yes. 
5 Q. Would you describe that person. 
6 A. He was -- he was white and he was just regular, you 
7 know, middle-aged. Just -- I think he just had regular dark 
8 hair, but I can't -- I can't be certain. Honestly, I don't 
9 really remember that well. 
10 Q. Was he large? small? middle-sized? 
11 A. I believe he was middle-sized. 
12 Q. And was he thin? fat? stocky? muscular? 
13 A. I believe he was just regular. He was just medium 
14 build. 
15 Q. Okay. And you saw him -- did you then see a car 
16 leave the parking lot? 
17 A. Yes, I did. 
18 Q. And what kind of car was that? 
19 A. It was a red car. 
20 Q. A red car? 
21 A. Yeah. 
22 Q. You're sure about that. 
23 A. I believe so, yes. 
24 Q. Now, you told us yesterday that, when you were 
25 leaving By George's, Ryan made some phone calls on the way to 
827 
 1 the car? Is that correct? 
2 A. That's correct. 
3 Q. And -- 
4 A. And while we were sitting in the car. 
5 Q. And later sitting in the car. 
6 A. Yes. 
7 Q. And this was not a whole long time, was it? 
8 A. It was probably somewhere in the neighborhood of 10, 
9 15 minutes. 
10 Q. Okay. 
11 A. We were kind of hesitant to leave the bar. He 
12 didn't want to go home. But we couldn't buy any more drinks. 
13 So there wasn't really any point in staying at the bar. He 
14 was trying to find something to do. So we kind of loitered 
15 around the parking lot and started walking to the car. 
16 Q. And he's on the phone at this time. 
17 A. Yeah. 
18 Q. Did you tell us yesterday that, already inside the 
19 bar, he had decided to rob somebody? 
20 A. I never said that. 
21 Q. You never said that yesterday. 
22 A. I never said that. 
23 Q. Okay. Did you ever tell the police that? 
24 A. No, I don't believe I did. 
25 Q. And did you tell us yesterday that when you and Ryan 
828 
 1 were leaving the car, that he -- that you thought you were 
2 going to do something like a pickpocket? 
3 A. That's correct. That was what I had imagined. I -- 
4 Q. That's what you had imagined. That's what you 
5 thought. 
6 A. That's correct. 
7 Q. And you told us that Ryan got out this tire tool, 
8 that you drew for Mr. Nichols, just in case something 
9 happened. 
10 A. Yes. 
11 Q. And gave it to you. 
12 A. Yes. 
13 Q. Now, when you got, you say, behind the Tribune 
14 building, Ryan never told you to hit Mr. Heitholt, did he? 
15 A. Yes, he did. 
16 Q. He told you to hit Mr. Heitholt? 
17 A. He said, "We need to get this over with. Hit him. 
18 We need to get this over with." 
19 Q. Excuse me. Did you hear the question? 
20 A. Yeah. And I answered yes. 
21 Q. Did he tell you to hit Mr. Heitholt? 
22 A. Yes. 
23 Q. Okay. That's your answer. 
24 A. That's my answer. 
25 Q. Isn't it true that you don't even claim that the 
829 
 1 words "hit him" came out of Ryan Ferguson's mouth? 
2 A. No. 
3 Q. That's not true. You do claim the words "hit him" 
4 came out of Ryan's mouth. 
5 A. That's correct. 
6 Q. And so you're not saying he said, "Get this over 
7 with," and you thought he meant hit him? 
8 A. No. He said, "Just hit him. We need to get this 
9 over with." 
10 Q. He said, "Just hit him." 
11 A. Yeah. Something to that... 
12 Q. Do you recall, once again during your deposition, 
13 starting, Your Honor, on page 198 at line 1. 
14 THE COURT: Can you -- 
15 (Court turning to page 198 for the witness.) 
16 Q. Do you recall the following questions being asked 
17 and you giving the following answers: 
18 "QUESTION: And Mr. Ferguson had never said 
19 explicitly, 'Go hit him.'" 
20 Your answer: "Yes, he did. He said, 'Go' -- well, 
21 no. He said, 'We need -- we need to get this over with.' 
22 And I was assuming that's what Mr. Ferguson meant by saying 
23 that. 
24 "QUESTION: You were assuming that's what 
25 Mr. Ferguson meant? 
830 
 1 "ANSWER: Yes." 
2 Do you recall giving those answers to those 
3 questions under oath at the deposition? 
4 A. Yeah, that's correct. 
5 Q. Okay. So, as you sit here today, what do you claim 
6 to remember Mr. Ferguson saying? 
7 A. He told me to hit him. He said, "We just -- just go 
8 hit him. We need to get this over with." 
9 Q. You claim to remember today that Mr. Ferguson said, 
10 "Just go hit him." 
11 A. That's correct. 
12 Q. Even though you testified under oath back at the end 
13 of June of this year that he didn't say that. 
14 A. That's correct. 
15 Q. Now, did you tell us yesterday, about the time you 
16 were doing the reenactment with Mr. Crane, that you came 
17 around Ryan's right side, after having sat on the curb or the 
18 parking lot block or whatever it was, and that Ryan had his 
19 knee in the middle of Mr. Heitholt's back? 
20 A. I can't remember if it was his knee. I want to say 
21 it was his foot, though. 
22 Q. Did you tell us yesterday it was the knee? 
23 A. I believe I said it was the foot. 
24 Q. So you deny telling us yesterday it was the knee. 
25 A. I can't remember what I said, but I believe I said 
831 
 1 his foot. 
2 Q. Now referring again to Dallas Mallory, is it your 
3 testimony today that when you saw Mr. Mallory, he was stopped 
4 at the stoplight at the corner of Locust and Providence? 
5 A. Let me take a look at that. 
6 Q. By the Phillips station. 
7 MR. CRANE: Are you talking about the intersection 
8 or a red light or what are you -- what's your -- how are you 
9 framing that question? 
10 MR. ROGERS: The question is: Stopped at the 
11 stoplight. 
12 MR. CRANE: Stopped at a -- 
13 A. I don't know what color the light was. It was an 
14 intersection. And he -- no. When he was -- he was pulling 
15 up to the intersection when I first saw him. He was stopped 
16 when I said something to him. 
17 Q. And there is a traffic control signal there. 
18 A. Sorry? 
19 Q. There is a traffic control signal there. 
20 A. Yes. 
21 Q. Okay. Now, do you recall your deposition, once 
22 again, starting at page 227? 
23 Your Honor -- let me do that for you. 
24 Beginning at line 19, page 227. Following question: 
25 "Okay. Let me go back a minute. You say he stopped 
832 
 1 at the stoplight southbound on Providence. 
2 "ANSWER: Yeah. 
3 "QUESTION: So the light is then red; is that 
4 correct? 
5 "ANSWER: Yes. 
6 "QUESTION: Okay. 
7 "ANSWER: Sorry. Sorry. 
8 "QUESTION: That's all right." 
9 A little yelling there. 
10 "We can get you more coffee." 
11 Can you turn the page? 
12 A. Yeah. 
13 Q. "ANSWER: I think I'm all right. Thank you. 
14 "QUESTION: Already had enough of that. So the 
15 light's red? 
16 "ANSWER: Yeah. 
17 "QUESTION: And that means there's a green light for 
18 you and Ryan to be crossing Providence; is that accurate? 
19 "ANSWER: Yes." 
20 A. Yeah. Okay. 
21 Q. Do you recall giving those answers to those 
22 questions under oath at your deposition? 
23 A. Yes. Yes, I do. 
24 Q. Okay. So we're talking a red stoplight. 
25 A. He was stopped. I assumed it was a stoplight. I 
833 
 1 don't remember seeing a red stoplight. 
2 Q. You testified under oath that not only did you see a 
3 red stoplight, but you also saw the green stoplight for you 
4 and Ryan to walk across, didn't you? 
5 A. I don't know about all of that. 
6 Q. All right. Let's read it again. 
7 A. Let's see. 
8 Q. Starting on page 227, line 22. 
9 A. You said that that means there's a green light. I 
10 was making an assumption. 
11 Q. Okay. But you said "Yes." 
12 A. Yeah, I said yeah. 
13 Q. And at the very beginning of the deposition, on page 
14 7 -- 
15 A. I got it. 
16 All right. 
17 Q. Page 7, line 1, I -- I asked you: "Now, if I ask 
18 you a question or Mr. Crane asks you a question, and you're 
19 not sure of the answer, would you tell us that you're not 
20 sure before we -- before giving a guess or an estimate?" And 
21 you answered, "Yes." And then I asked: "So are we agreed 
22 then that unless you say otherwise, you have understood the 
23 question and you're certain of the answers?" And your answer 
24 to that was "Yes"; is that correct? 
25 A. Yeah. Let me just make this clear. This was page 
834 
 1 7; right? 
2 Q. Right. 
3 A. And the other one was 227. 
4 Q. Right. 
5 A. And that deposition was seven hours long? 
6 Q. I don't know how long. 
7 A. Somewhere in that neighborhood. 
8 Q. It was long. 
9 A. I just wanted to clarify that. 
10 Q. Okay. But -- 
11 THE COURT: Mr. Rogers, at this time, I don't know 
12 if you're at a stopping point, but our jurors' lunch is here. 
13 And I'll let you, if you're -- have a few questions in this 
14 line that you want to finish, I'll let you finish it, but -- 
15 MR. ROGERS: I just want to finish this one 
16 stoplight topic and -- 
17 THE COURT: All right. You can finish that topic, 
18 and then we'll break for lunch. 
19 Q. So that was a -- that was at the very outset, 
20 setting the ground rules for the deposition, wasn't it? 
21 A. Yeah, that's right. 
22 Q. And you agreed to it. 
23 A. Yes. 
24 Q. And you agreed that if at any time during the 
25 deposition you were asked a question that you would -- were 
835 
 1 not sure of your answer, you'd tell us, and we'd go from 
2 there; right? 
3 A. That's correct. 
4 Q. And when you answered the stoplight questions, you 
5 didn't say, "Well, this is just an assumption I'm making," 
6 did you? 
7 A. No, I didn't say that. 
8 Q. Okay. So it was fair for us to assume that you were 
9 certain of your answers under oath to those -- 
10 MR. CRANE: Well, I'm going to object to what's fair 
11 for him to assume. 
12 THE COURT: Sustained. As to the form of the 
13 question. 
14 Q. Well, you had told us on page 7 that -- let me put 
15 it this way. When you answered the stoplight questions, that 
16 was subject to our agreement that you had understood the 
17 question and were certain of the answer; isn't that correct? 
18 A. Yes. 
19 Q. Okay. 
20 MR. ROGERS: That's a good time for lunch, Your 
21 Honor. 
22 THE COURT: All right. 
23 Ladies and gentlemen, the Court again reminds you of 
24 what you were told at the first recess of the Court. Until 
25 you retire to consider your verdict, you must not discuss 
836 
 1 this case among yourselves or with others, or permit anyone 
2 to discuss it in your hearing. You should not form or 
3 express any opinion about the case until it is finally given 
4 to you to decide. Do not read, view, or listen to any 
5 newspaper, radio, or television report of the trial. 
6 Take a break of about an hour. Come back at 1:15 
7 then. 
8 - - - 
9 The following proceedings were held out of the presence 
10 of the jury: 
11 THE COURT: It's come to my attention that the CBS 
12 videographer may be taking pictures of at least typewritten 
13 notes at counsel table. 
14 DEPUTY COURT MARSHAL LANE: Yes. 
15 THE COURT: We have a monitor over there. 
16 DEPUTY COURT MARSHAL LANE: It's still down there. 
17 THE COURT: It is there? I'd like someone to look 
18 at it. And I don't see any reason to have this big screen up 
19 all the time. 
20 DEPUTY COURT MARSHAL BAER: Yes, Judge. 
21 THE COURT: So you can have them remove it. And at 
22 such time that they may need to show something, they can put 
23 it up. 
24 DEPUTY COURT MARSHAL LANE: I have been monitoring 
25 the monitor, and I have seen -- 
837 
 1 (Audience becoming noisy.) 
2 DEPUTY COURT MARSHAL LANE: Court is in session. 
3 THE COURT: If you want to talk, you may step 
4 outside. 
5 DEPUTY COURT MARSHAL LANE: I've seen typewritten, 
6 but I haven't noticed on the desk. I noticed it when they're 
7 standing there holding it up. But I was only told about them 
8 not filming the jurors. But I will make sure that doesn't 
9 happen again. 
10 THE COURT: Okay. And you have been looking at the 
11 monitor? 
12 DEPUTY COURT MARSHAL LANE: Yes, I have. That's 
13 what I have been doing there, sitting down. 
14 THE COURT: Okay. All right. Well, with that 
15 understanding -- yes? 
16 DEPUTY COURT MARSHAL BAER: Judge, they would like 
17 to go out and smoke in about 30 minutes. 
18 THE COURT: As long as they're in a private place, I 
19 don't care if they smoke. Okay. 
20 Let me just suggest that I had someone looking at a 
21 monitor of our proceedings. And evidently it's been 
22 photographed when you've held something up. And not when 
23 it's been flat down on the table. And so we will make sure 
24 that that doesn't happen. 
25 MR. ROGERS: Thank you. 
838 
 1 DEPUTY COURT MARSHAL LANE: Do I need to let them 
2 know they're not to film any -- 
3 THE COURT: Well, what I don't want them to film is 
4 -- if someone picks up a deposition, that's fine for them to 
5 film. If someone has typewritten notes of what the questions 
6 are that they're going to ask or references to pages or 
7 anything that's of a lawyer's proprietary things, whether 
8 it's in handwriting or in typewritten, they are not to 
9 photograph that. If it's a deposition that you're reading 
10 from, page 200, line 1, through line 25, that's fine. But if 
11 it's something that is other than that, I do not want that 
12 photographed. 
13 DEPUTY COURT MARSHAL LANE: Yes, Judge. 
14 THE COURT: And you may tell them you're looking at 
15 it, and if you see that it's on the monitor, their 
16 photographing will cease. 
17 DEPUTY COURT MARSHAL LANE: I will. 
18 THE COURT: We'll be in recess. 
19 (Recess taken.) 
20 - - - 
21 The following proceedings were held out of the presence 
22 of the jury: 
23 THE COURT: State ready to proceed? 
24 MR. CRANE: Ready, Judge. 
25 THE COURT: Defendant ready to proceed? 
839 
 1 MR. ROGERS: Yes, Your Honor. 
2 THE COURT: And the jury is ready to come back. 
3 DEPUTY COURT MARSHAL: (Nodding head up and down.) 
4 THE COURT: Bring them back, please. 
5 - - - 
6 The following proceedings were held in the presence of 
7 the jury: 
8 THE COURT: Counsel for defendant may inquire. 
9 MR. ROGERS: Thank you. 
10 - - - 
11 CHARLES TIMOTHY ERICKSON, 
12 resumed the stand and testified further: 
13 RESUMED CROSS-EXAMINATION 
14 BY MR. ROGERS: 
15 Q. Mr. Erickson, you had told us, I believe, about a 
16 big puffy Nautica coat that you say you were wearing that 
17 night? 
18 A. Yeah. 
19 Q. And is it your testimony today that, to the best of 
20 your memory, it was a chilly night that night? 
21 A. That's correct. Yes. 
22 Q. And when you say "a big puffy coat," is that one of 
23 these insulated jackets? Not a down jacket, but filled with 
24 some synthetic fiber? 
25 A. I think it had down in it actually. 
840 
 1 Q. Could have been actually down. 
2 A. Yes. 
3 Q. And nylon on the outside? 
4 A. I don't know what it was. 
5 Q. Okay. What did you tell us yesterday became of that 
6 coat? 
7 A. I believe I left it at a man named Brian Walters' 
8 house. 
9 Q. And do you have a memory of taking that coat from 
10 Mr. Ferguson's car into your house in the early morning of 
11 November 1st, 2001? 
12 A. Not really, no. 
13 Q. Okay. Do you recall seeing and wearing that coat 
14 after November 1st, 2001? 
15 A. Yes, I do. 
16 Q. Okay. You're sure about that. 
17 A. Yes. 
18 Q. Okay. And once again, you recall giving your 
19 deposition on June 30th of this year. 
20 A. Yeah. 
21 Q. You were under oath, in this building. 
22 A. Uh-huh. Yes. 
23 Q. And do you recall the following questions being 
24 asked and the following answers being given at that 
25 deposition, beginning on page 246. 
841 
 1 A. I can look. 
2 THE COURT: He seems to think he can open the 
3 deposition. 
4 MR. ROGERS: He seems to be capable of doing so, 
5 Your Honor. 
6 THE COURT: Yes. 
7 A. 246. 
8 Q. 246? 
9 A. Yeah. 
10 Q. Beginning at line 12. 
11 "QUESTION: Okay. Now that you've had plenty of 
12 time to think about that particular coat -- 
13 "ANSWER: Uh-huh. 
14 "QUESTION: -- do you know where it is today? 
15 "ANSWER: No. 
16 "QUESTION: What happened to it? 
17 "ANSWER: I'm fairly certain I left it in Ryan's car 
18 the night that this happened, but I didn't -- I didn't take 
19 it home with me after that." 
20 Were those your answers to those questions under 
21 oath June 30 of this year? 
22 A. Yeah. 
23 Q. Okay. 
24 A. I was fairly certain that I left it in Ryan's car 
25 and that I didn't take it home with me after that. 
842 
 1 Q. Okay. Now -- 
2 THE COURT: May he sit down now? Are you still on 
3 the deposition? 
4 MR. ROGERS: I'm going to go to another topic, so 
5 yeah, please sit down. 
6 Q. I want to call your attention now to later in the 
7 morning of November 1st, 2001, when you woke up, hung over, 
8 to go to school -- 
9 A. Uh-huh. 
10 Q. -- okay? 
11 A. All right. 
12 Q. Do you recall finding any bloody clothes in your 
13 house at that time? 
14 A. No. 
15 Q. Do you recall seeing any blue jeans that you might 
16 have been wearing that had blood stains on them? 
17 A. I don't remember. 
18 Q. Do you recall seeing a sweatshirt with blood stains 
19 on it? 
20 A. No. 
21 Q. Do you recall seeing any boots with blood stains on 
22 them? 
23 A. No. 
24 Q. Do you recall seeing any tennis shoes with blood 
25 stains on them? 
843 
 1 A. No. 
2 Q. Do you recall seeing any blue jeans with mud or 
3 water on the bottom of them from wading through a creek? 
4 A. I don't remember. 
5 Q. You don't remember whether or not you saw those 
6 things or you don't -- 
7 A. I don't remember if my -- if I woke up and my pants 
8 were wet in the morning. I don't remember. I didn't put the 
9 same pants on when I went to school. 
10 Q. As a matter of fact, do you know what you did with 
11 your clothing when you got to your home early on the morning 
12 of November 1st? 
13 A. No. 
14 Q. Did you wear it in your house? 
15 A. Yeah. I believe so. Yes. 
16 Q. Okay. You sure about that. 
17 A. Yeah. 
18 Q. Okay. Do you recall, once again, giving your 
19 deposition on June 30th? 
20 A. Yeah. 
21 Q. And do you recall giving the following answers to 
22 the following questions beginning at page 250. Question 
23 beginning at line 7. Are you there? 
24 A. Yeah, I'm here. 
25 Q. Okay. 
844 
 1 "QUESTION: Okay. And you don't remember deciding 
2 that you needed -- that you need to get rid of clothing 
3 that's got blood on it, do you? 
4 "ANSWER: "No. I may have left the clothes in the 
5 car with Ryan. I can't remember. 
6 "QUESTION: Your pants? 
7 "ANSWER: I might have. 
8 "QUESTION: You might have left your pants in Ryan's 
9 car? 
10 "ANSWER: I might have. I -- I don't -- I don't 
11 remember. 
12 "QUESTION: Okay. I don't even want to know what 
13 you're doing taking your pants off in Ryan's car, but I'm not 
14 going to ask you. 
15 "ANSWER: It's possible I went to my house in my 
16 boxers. I mean, I can't be certain." 
17 Do you recall giving those answers to those 
18 questions under oath at your deposition? 
19 A. Yeah. 
20 Q. But now you can remember that you did, in fact, wear 
21 your clothing into your house. 
22 A. I told you I couldn't remember that. 
23 Q. You told us today that you did remember. 
24 A. No. I believe I said I couldn't remember. 
25 Q. So you're telling us that -- just a minute ago you 
845 
 1 told us, before I read this part from the deposition, you're 
2 telling us that -- you told us you couldn't remember whether 
3 you wore your clothes into your house or not. 
4 A. I thought I said I couldn't remember. 
5 Q. Okay. 
6 A. I believe I said I might have, but, I mean, I 
7 couldn't remember -- I couldn't remember whether I wore the 
8 clothes in my house or whether I took them off or whether I 
9 left them on the floor or whatever. I couldn't remember. 
10 And I made that clear in the deposition. And I thought I 
11 made it clear earlier, but I'm sorry if I didn't. 
12 Q. Let me ask you this, sir. On November the 1st, 
13 2001, when you got up and went to school hung over, did you 
14 hear any news broadcasts about the death of Mr. Heitholt? 
15 A. I don't remember. 
16 Q. Did you hear anything that evening about the death 
17 of Mr. Heitholt? 
18 A. I believe so. 
19 Q. Okay. When you saw that broadcast or read the paper 
20 or whatever it was, did you have any conscious belief that 
21 you had somehow been involved in that death on November the 
22 1st, 2001? 
23 A. No. 
24 Q. The next day, November the 2nd, 2001, is the day 
25 that Mr. Ferguson picked you up to take you to school. 
846 
 1 A. That's correct. 
2 Q. And that's the day that you had with you the paper 
3 from the evening before; correct? 
4 A. I don't know which paper it was. 
5 Q. Let me ask you this. Is the Columbia Daily Tribune 
6 an afternoon paper? 
7 A. I don't know. 
8 Q. You don't know whether it comes in the morning or in 
9 the afternoon? 
10 A. I don't know. 
11 Q. Okay. In any event, you had a copy of the paper 
12 that dealt with Mr. Heitholt's death. Correct? 
13 A. That's correct. 
14 Q. And you said to Mr. Ferguson, "This is messed up." 
15 Right? 
16 A. I don't know if I used those words. 
17 Q. Aren't those the words you used yesterday when 
18 Mr. Crane was talking to you? 
19 A. I don't know if I used exactly those words. 
20 Q. You said something to that effect. Is that a fair 
21 statement? 
22 A. Yeah, but I said more than that. 
23 Q. Okay. And at that time, when you said whatever you 
24 said on November the 2nd, 2001, did you have any conscious 
25 belief that you had been involved in the death of Kent 
847 
 1 Heitholt? 
2 A. No. 
3 Q. And the rest of that month, November of 2001, as you 
4 went about your business, going to school, going to the 
5 educational counselor, testing program, things like that, did 
6 you, in fact, have any conscious belief that you had been 
7 involved in the death of Kent Heitholt in any way? 
8 A. No. 
9 Q. And throughout the rest of that year of 2001, did 
10 you have any conscious belief that you were in any way 
11 involved in the death of Kent Heitholt? 
12 A. No. 
13 Q. And throughout the next year, 2002 -- your senior 
14 year in high school? 
15 A. That was part of my senior year, yeah. 
16 Q. The beginning of your senior year. 
17 A. Yeah. 
18 Q. -- did you have any conscious belief that you were 
19 in any way involved in the death of Kent Heitholt? 
20 A. No. 
21 Q. And throughout the spring of 2003, when you 
22 graduated from high school, did you have any conscious belief 
23 that you were in any way involved in the death of Kent 
24 Heitholt? 
25 A. No. 
848 
 1 Q. Let me go back to By George's bar. It was obvious 
2 that you went there with Mr. Ferguson on Halloween night, 
3 didn't you? 
4 A. Yes. 
5 Q. And you've listed a bunch of people that you knew 
6 who were there. 
7 A. Yes. 
8 Q. And you stated that the only person that you 
9 remember talking to is somebody who is currently deceased. 
10 A. No. I talked to Melissa Griggs. 
11 Q. Talked to whom? 
12 A. Melissa Griggs. 
13 Q. And were these people there when you finally left By 
14 George's for the evening and did not return? 
15 A. I don't -- I don't know. 
16 Q. Were any of these people there? 
17 A. I don't know. 
18 Q. Were these among the crowd that you waited to leave 
19 at closing time with, so that you would not attract the 
20 attention of the police officer outside? 
21 A. I don't know. 
22 Q. And it's your statement that when the bar closed and 
23 everybody left at the same time because they had to, that 
24 there was, in fact, a police officer still outside; correct? 
25 A. That's correct. 
849 
 1 Q. And that police officer had been outside for some 
2 time; correct? 
3 A. I don't know how long he had been outside. I didn't 
4 physically see him until I left the bar. 
5 Q. All right. And he was there making sure nothing 
6 happened when people left the bar at closing time. 
7 A. I don't know what he was doing. 
8 Q. You remember, while you were at By George's, did a 
9 police officer come in and say, "Hey, you guys are supposed 
10 to be closed. Get out of here." Didn't he? 
11 A. Not to my memory. I never saw anyone, no. 
12 Q. Okay. When you left the bar at closing time, do you 
13 know whether anyone whom you knew, other than Ryan Ferguson, 
14 left with you? 
15 A. No. Not to my memory, no. It was just -- 
16 Q. You don't know whether or not -- 
17 A. It was just Ryan and I. 
18 Q. But you're leaving with a whole group of other 
19 people. 
20 A. Yeah. The entire building is being -- everyone's 
21 leaving the building. 
22 Q. And you don't know whether or not some of the people 
23 that you knew were there -- 
24 A. There were a lot of people leaving at once. I don't 
25 know. It was a pretty big club. 
850 
 1 Q. Okay. Now, isn't it true that you and Ryan Ferguson 
2 left the bar when it closed and he dropped you off at your 
3 house? 
4 A. No. 
5 Q. Stopped for cigarettes, and then he dropped you off 
6 at your house? 
7 A. No. Oh, wait. I'm sorry. Sorry. 
8 Q. Well, let me do it more step by step. You told us 
9 earlier -- 
10 A. No. We went to his car, and we drove by the scene, 
11 and then we stopped for cigarettes, and then we went to my 
12 house. 
13 Q. Okay. And you say you went to his car and you drove 
14 by the scene. And you're talking about driving south on 
15 Providence? 
16 A. That's correct. First we took a right on Ash. 
17 Q. And you were looking up the alley? Is that what 
18 you -- 
19 A. Huh? 
20 Q. Do you recall looking up the alley from Providence? 
21 A. Well, we were -- the entire Tribune building was to 
22 our left. So we had a view -- there was a lot going on. 
23 There was a lot of police cars there. 
24 Q. Okay. And you looked at the police cars in the 
25 parking lot of the Tribune building. 
851 
 1 A. Yes. 
2 Q. Correct? 
3 A. Yes. 
4 Q. And you saw police cars. 
5 A. Yes. 
6 Q. And what else did you see there? 
7 A. I believe I saw a white body bag. 
8 Q. Okay. Now, once again, do you recall giving your 
9 deposition? 
10 A. What page is that? 
11 Q. I'm looking for it. The question is: Did you 
12 recall giving your deposition? 
13 A. Yes, I recall giving it. 
14 Q. And this is page 241. 
15 A. All right. 
16 Q. Beginning at line 18. 
17 "QUESTION: Do you remember what you saw in the 
18 Tribune parking lot? 
19 "ANSWER: There were a lot of police cars. A lot of 
20 people walking around. I think I remember seeing a news 
21 thing. 
22 "QUESTION: Okay. 
23 "ANSWER: I might be wrong about that, but -- and I 
24 thought I saw a, like, a wrecker doing something, but I could 
25 be wrong about that also. 
852 
 1 "QUESTION: By a wrecker, you mean a tow truck? 
2 "ANSWER: Yeah. I'm not sure, though. 
3 "QUESTION: Anything else you remember seeing in the 
4 parking lot? 
5 "ANSWER: No." 
6 A. All right. 
7 Q. You can sit back down. Are those the answers that 
8 you gave to those questions under oath on June 30 at your 
9 deposition in this building? 
10 A. Yes. 
11 Q. The truth of the matter, sir, is that By George's 
12 closed at 1:30 in the morning on November 1st; isn't that 
13 true? 
14 A. That's not true. 
15 Q. And the truth of the matter is, that after it 
16 closed, Ryan Ferguson took you home. 
17 A. No. That's not true. 
18 Q. And the truth of the matter is that he dropped you 
19 off in front of your house. Is that true? 
20 A. After we committed a robbery and murdered Kent 
21 Heitholt. After we went back to the club. After we drove by 
22 the scene. After we stopped and got a pack of cigarettes. 
23 Then he took me home. That's correct. 
24 Q. The truth of the matter is: He dropped you off in 
25 front of your house before 2:00 in the morning. Isn't that 
853 
 1 true? 
2 A. That's not true. 
3 Q. And as a matter of fact, it was after you had been 
4 dropped off that he started this series of phone calls to 
5 Holly Admire. 
6 MR. CRANE: Well, Judge, I'm going to object to 
7 that. He's asking him, without any foundation, for 
8 speculation about what Ryan Ferguson did after he dropped him 
9 off? 
10 THE COURT: Sustained. 
11 MR. ROGERS: Your Honor -- 
12 THE COURT: He can't possibly know what happened 
13 after -- 
14 MR. CRANE: Well, I mean, I guess he could be 
15 talking on the phone. But I mean, there's no evidence -- 
16 MR. ROGERS: Let me finish my question, and you'll 
17 see -- 
18 MR. CRANE: Uh-uh. No, Judge. I'm going to object 
19 to that question. That is assuming facts not in evidence. 
20 And at this point there's absolutely no foundation, and if 
21 there is one, I'm all ears, how that witness could answer 
22 this question. If they want to get in records, through 
23 somebody else, that's another matter. He's trying to 
24 bootstrap this question with this witness. That's improper. 
25 MR. ROGERS: Let me do it a different way. 
854 
 1 THE COURT: You may rephrase your question. 
2 MR. ROGERS: Thank you. 
3 Q. You told Mr. Crane yesterday about Ryan Ferguson 
4 making a bunch of phone calls, which you told us yesterday 
5 happened while walking from By George's to the car and then 
6 sitting in the car. Is that correct? 
7 A. Yes. 
8 Q. The truth of the matter is, sir, you have seen phone 
9 records about those phone calls which were -- 
10 MR. CRANE: Judge, I'm going to object to that. 
11 Q. -- made at various times. 
12 MR. CRANE: He's -- I don't know if he's seen the 
13 phone records. But, in any event, that's hearsay. If he's 
14 got another witness he wants to put down -- put on about 
15 phone records, so be it, but this witness isn't appropriate 
16 for that. 
17 THE COURT: Do you care to respond? 
18 Q. Haven't you seen phone records in the prosecutor's 
19 office, in preparation for your -- 
20 MR. CRANE: Same objection. 
21 Q. -- testimony in this case? 
22 A. Actually, the first time I saw them -- I looked at 
23 everything in discovery. I'm not going to lie. But I'm not 
24 a liar. And I'm not going to sit here and say that man did 
25 something he didn't do. 
855 
 1 Q. So, have you seen the phone records? 
2 A. Yeah, I have. That doesn't mean that I'm basing my 
3 memories off the phone records. 
4 Q. And you saw the phone records -- you have copies of 
5 them. Yourself. 
6 A. I don't have them -- I got rid of all my discovery 
7 months ago. 
8 Q. You had them for a while. 
9 A. Yeah, because -- 
10 Q. And you've also seen them -- 
11 A. They were sent to me. I have a right to any 
12 discovery in the case. They were sent to me after my 
13 preliminary trial was waived. 
14 Q. And you've gone over them. Correct? 
15 A. I've read them, yes, that's correct. 
16 Q. And before you saw those phone records, you said 
17 nothing to anybody about Ryan Ferguson making telephone calls 
18 while walking from By George's to the car; isn't that true? 
19 A. I don't -- I don't know. I don't know if that's 
20 true or not. I can't recall. 
21 Q. Well, we saw your videotaped statements March 10th, 
22 didn't we? 
23 A. Yeah. 
24 Q. And there's nothing in there about him making cell 
25 phone calls while walking from By George's to the car, is 
856 
 1 there? 
2 A. I can't remember. I believe he said he was trying 
3 to get a hold of people or he may have been trying to find 
4 something else to do. I know I said that he was insistent on 
5 not going home and not taking me home. He wanted to find 
6 something else to do. I don't think I got into that much 
7 detail. 
8 Q. The question is: You didn't make -- you didn't say 
9 anything about him making cell phone calls; correct? 
10 A. I don't know. I don't know if I did or not. 
11 Q. And you didn't say anything about him making cell 
12 phone calls in the unrecorded conversation with Mr. Short on 
13 March 10th, did you? 
14 A. I don't know. 
15 Q. And are you saying you have not gone over cell phone 
16 records with the prosecutor and his employees in preparation 
17 for your testimony all these times you've talked to -- 
18 A. No. I have looked at the cell phone records when I 
19 was in his office. 
20 Q. Okay. 
21 A. But I had seen them before that. 
22 Q. All right. 
23 A. But it had nothing to do with preparation of this. 
24 Q. All right. And so you saw them and you paid 
25 attention to times and things. 
857 
 1 A. I don't -- I don't -- I don't recall times. 
2 Q. And what I'm now going to ask you is: Isn't it true 
3 that those phone calls, which are reflected in the records 
4 that you saw in preparation for your testimony here in court, 
5 were in fact made -- 
6 MR. CRANE: Same objection. And also misstates the 
7 witness's testimony. He didn't say anything about 
8 preparation -- 
9 THE WITNESS: Yeah. 
10 MR. CRANE: -- for court. 
11 Wait a minute. 
12 THE WITNESS: Sorry. 
13 MR. CRANE: And -- number one, it's hearsay. And 
14 number two, he doesn't have any factual basis for the 
15 location the calls were made. If they've got a witness they 
16 want to have testify about that, that does have such 
17 information, fine. Not this one. 
18 THE COURT: The objection is sustained, that it's 
19 hearsay. 
20 Q. Let me ask it this way. Is it fair to say, 
21 Mr. Erickson, that you are denying -- or you are asserting 
22 that those phone calls were made in your presence? 
23 A. Yes. 
24 Q. Okay. 
25 A. Some of them were. Some of them may not have been. 
858 
 1 I'm not sure. 
2 Q. And are you therefore denying that they were made 
3 after you were gone? 
4 A. That's correct. 
5 Q. All right. When you say Ryan Ferguson told you he 
6 didn't want to go home, he told you that he was trying to get 
7 together with Holly Admire, didn't he? 
8 A. I don't re -- I don't remember if he said that or 
9 not. 
10 MR. ROGERS: I don't have any further questions for 
11 this witness. 
12 THE COURT: Mr. Crane, you may redirect. 
13 MR. CRANE: Okay. 
14 - - - 
15 REDIRECT EXAMINATION 
16 BY MR. CRANE: 
17 Q. On that last question there -- we'll work backwards. 
18 I know you're wore out. I'll try not to keep you up there 
19 too long. 
20 I believe you indicated yesterday -- boy, that seems 
21 like a long time ago, yesterday -- that you recall when you 
22 were -- had come out of your house, after you snuck out, 
23 changed clothes and snuck out, you got to the vehicle, and at 
24 that time was Mr. Ferguson on the phone? 
25 A. Yes, he was. 
859 
 1 Q. Okay. Now this is before you went to George's. 
2 A. That's correct. 
3 Q. And you indicated he was talking to whom, as far as 
4 you could tell at that time? 
5 A. He told me he was talking to Holly Admire on the 
6 phone. 
7 Q. Okay. That was prior to the time you went to 
8 George's. 
9 A. That's correct. 
10 Q. I want to ask you, sir, you've been asked some 
11 questions about what you told Nick Gilpin and Art -- 
12 pronounce that last name for me. 
13 A. Figueroa. 
14 Q. Figueroa. 
15 MR. CRANE: Judge, may I have permission to ask the 
16 witness what he told Nick Gilpin? This would be a -- some 
17 questions that I had started to ask yesterday. 
18 THE COURT: I don't know what you're going to ask. 
19 Ask your question, and the witness can answer. 
20 Q. Do you recall yesterday testifying that you, in late 
21 February, early March of 2004 -- 
22 A. Yeah. 
23 Q. -- after your -- the New Year's Eve incident with 
24 Mr. Ferguson, talked to Nick Gilpin? Somebody by the name of 
25 Nick Gilpin? 
860 
 1 A. That's correct. 
2 Q. Okay. And just to refresh our memory a little bit, 
3 you testified that was a good buddy of yours. 
4 A. Yes. 
5 Q. And you were at another buddy's residence. 
6 A. That's correct. 
7 Q. I believe you testified that you asked Mr. Gilpin to 
8 step outside, or wanted to speak to him in private. 
9 A. Well, we were pulling up to the house, and I brought 
10 it up as we pulled up to the house, but then -- 
11 Q. Well, were you and Mr. Gilpin -- 
12 A. Alone. 
13 Q. Just the two of you? 
14 A. Yeah. Yes. 
15 Q. Okay. Sir, do you recall what you told Mr. Gilpin 
16 regarding the incident that's the subject of this trial? 
17 A. Yeah. At -- at John Alder's house, I told Nick 
18 Gilpin that I thought that me and -- Ryan Ferguson and I were 
19 responsible for the murder of Kent Heitholt. I explained to 
20 him that we'd been at By George's that night and Ryan wanted 
21 to -- 
22 Q. Now I can't hardly hear you. 
23 A. I said that we'd been at By George's that night, and 
24 Ryan wanted to -- 
25 MR. ROGERS: I'm going to object to this, Your 
861 
 1 Honor. This is not inconsistent with anything that he was 
2 questioned about on cross-examination. 
3 THE COURT: The objection's overruled. 
4 Q. Start over. And make sure we can all hear you. 
5 A. I -- I pulled up to John Alder's house with Nick 
6 Gilpin. And when we pulled up to his house, I told him there 
7 was something I wanted to talk to him about. And I told him 
8 that I thought that Ryan Ferguson and I were responsible for 
9 the murder of Kent Heitholt. And I explained to him some of 
10 the background about that night. I explained to him that we 
11 were at By George's and that Ryan wanted to rob someone. And 
12 I explained to him that I was having memory problems. And 
13 that I was -- he was -- I was having problems trying to 
14 figure out if what I remembered was an actual memory or these 
15 things in my mind were memories or dreams. 
16 Q. What did you tell Mr. Gilpin that you did? 
17 A. Well -- 
18 Q. You've already testified you were both at George's? 
19 A. Yeah. 
20 Q. What did you tell him? 
21 A. Well, later at Nick's house -- I didn't get very 
22 descriptive when we were at John's, but at Nick's house I 
23 told him that I hit Kent Heitholt in the head with a tire 
24 tool. That I saw Ryan Ferguson on the ground strangling him. 
25 That I thought that I got sick. And that I told a cleaning 
862 
 1 lady to go get help. 
2 Q. As we've heard on the video with Detective Short, 
3 the first video that was played, you knew, when Detective 
4 Short was talking to you, he told you, "Nick Gilpin's been in 
5 here, and he's told us what you'd said?" 
6 A. Yes, that's correct. 
7 Q. Okay. And that's the same guy. 
8 A. That's the same guy. 
9 Q. And what do you recall about the cleaning lady; what 
10 you told Mr. Gilpin about the cleaning lady? 
11 A. That I told her to go get help. 
12 Q. Now, Art -- 
13 MR. ROGERS: Your Honor, I'm going to object to that 
14 as an improper rehabilitation. I didn't ask him anything 
15 about telling Mr. Gilpin anything about the cleaning lady. 
16 MR. CRANE: Oh, I'm not rehabilitating on that. I'm 
17 talking about all this he brought up about not saying, 
18 "Cleaning lady, go get help." 
19 THE COURT: Your objection is overruled. 
20 Q. Okay. Mr. Erickson, after you talked to Nick Gilpin 
21 and told him about being at George's on Halloween of 2001, 
22 and you and Mr. Ferguson decided to go rob somebody, and you 
23 striking the victim and Mr. Ferguson strangling him, and the 
24 cleaning lady and telling her to go get help, Art -- can I 
25 just call him Art? 
863 
 1 A. That's fine. Yeah. That's fine. 
2 Q. Art is another buddy of yours? 
3 A. That's correct. 
4 Q. How did you know Art? 
5 A. I worked with him. I worked with his brother. I've 
6 known him for a few years. He lived across Chapel Hill from 
7 me. 
8 Q. Okay. Were you employed with Art for a while? 
9 A. That's correct. 
10 Q. Where? 
11 A. At Wendy's restaurant. 
12 Q. Wendy's here in Columbia? 
13 A. That's correct. 
14 Q. And I believe for a short period of time 
15 Mr. Ferguson worked there? 
16 A. That's correct. 
17 Q. How did he get that job? 
18 A. I believe that he got it because I knew -- I knew 
19 Art's brother Nick, but I can't -- 
20 Q. Okay. Somehow -- Art and his family run that 
21 Wendy's or something? 
22 A. Yeah. Well, his dad runs a bunch of them. 
23 Q. And you developed a friendship with Art through that 
24 and -- 
25 A. Yeah -- 
864 
 1 Q. Okay. 
2 A. Yeah. That's correct. 
3 Q. Now, at some point after your conversation with Nick 
4 Gilpin, do you recall a conversation with Art Figueroa? 
5 A. Yes. 
6 Q. And do you remember where that conversation was? 
7 A. Yeah. It took place in his car. 
8 Q. Okay. Do you remember where you were at -- where 
9 you were located? 
10 A. I was at Nick Gilpin's house before that. 
11 Q. Okay. Now -- but this is another night from the 
12 night you talked to Nick Gilpin? 
13 A. This is a different night. This is about a week 
14 later. 
15 Q. Okay. You just happened to have been over at Nick 
16 Gilpin's residence. 
17 A. That's correct. 
18 Q. And Art and you were leaving that residence in his 
19 car or -- 
20 A. Actually I drove there, but I lost my keys. He -- 
21 we had a little get-together over there, and I couldn't find 
22 my keys. 
23 Q. Okay. 
24 A. So I had to have Art give me a ride. 
25 Q. So Art's driving and you're in the vehicle. 
865 
 1 A. That's correct. 
2 Q. And what, if anything, did you confide in Art 
3 Figueroa about? 
4 A. I told him that Ryan Ferguson and I had -- I thought 
5 we killed Kent Heitholt. That I had hit Kent Heitholt. Ryan 
6 Ferguson had strangled him. Told him that I told a cleaning 
7 lady to get help. Told him that I felt bad about it. I 
8 didn't know what to do. I was thinking about coming forth 
9 and giving my DNA and -- I don't know. I think I told him 
10 that Ryan threatened to kill me. I know I told that to Nick 
11 too. I forgot to put that in there. 
12 Q. Okay. Well, now, one thing I think you indicated on 
13 your testimony is that, with respect to both Nick and Art, 
14 while you told them you had these memories of this murder and 
15 what you'd done, striking the victim, and Mr. Ferguson 
16 strangling, you did admittedly express some hesitation and 
17 doubt about that. 
18 A. That's correct. Yes, I did. 
19 Q. To both of these individuals. 
20 A. Yes, I did. 
21 Q. And that's what we talked about yesterday. You were 
22 still wrestling with this. 
23 MR. ROGERS: Objection to leading. 
24 THE COURT: Sustained. As to the form of the 
25 question. 
866 
 1 Q. And then it was after -- am I correct it was after 
2 that, within a few days, that the police came and got you, 
3 and then that led to the statements that you made to them; is 
4 that correct? 
5 A. That's correct. 
6 Q. Okay. The coat -- Mr. Rogers asked you about the 
7 coat. He directed you to page 246 in the deposition. He 
8 asked you questions -- do you remember him asking you -- 
9 A. I'm fairly certain I left it in Ryan's car the night 
10 that this happened, but I didn't -- I didn't take it home 
11 with me that -- after that. And his next question was, "When 
12 did you" -- 
13 Q. Well, wait a minute. Wait a minute. I know you're 
14 sick of this, but let me -- he -- I believe Mr. Rogers asked 
15 you what happened to it, on line 17. 
16 MR. ROGERS: What page are you on? 
17 A. Yeah, that's correct. 
18 MR. CRANE: 246. 
19 MR. ROGERS: Thank you. 
20 Q. And you answer -- you've already testified to this 
21 on cross. "I'm fairly certain I left it in Ryan's car the 
22 night after this happened, but I didn't -- I didn't take it 
23 home with me after that." And then what's the question and 
24 answer that follows that? 
25 A. "When did you first come to that realization?" 
867 
 1 Q. Speak up, please. 
2 A. "When did you first come to that realization?" 
3 Q. And your answer was? 
4 A. "Just -- it was just a thought that, that since I 
5 couldn't find it, I remember I thought that I had left it in 
6 his car or I left it at a friend's house named Brian 
7 Walters." 
8 Q. Okay. And the next question is at the top of page 
9 247. 
10 A. "Did you remember asking Brian Walter, 'Hey, is my 
11 coat over there?'" My answer: "Yeah. And he said he 
12 couldn't find it." 
13 Q. Okay. So you might have left it at Brian Walters'. 
14 You lost the coat. 
15 A. That's correct. 
16 MR. ROGERS: Leading, Your Honor. 
17 THE COURT: Sustained as to the form of the 
18 question. 
19 Q. Have a seat if you would. 
20 I'm going to show you what's marked for 
21 identification State's Exhibits 87 and 87B. 
22 MR. ROGERS: I would object, Your Honor, as beyond 
23 the scope of cross-examination. 
24 THE COURT: I don't know what they are and -- 
25 MR. CRANE: Okay. 
868 
 1 THE COURT: -- I don't know what the question is 
2 going to be. 
3 MR. ROGERS: Let's approach. 
4 - - - 
5 Counsel approached the bench and the following 
6 proceedings were held: 
7 MR. ROGERS: If we're just talking order of proof, 
8 and you're going to have some other witness to identify it, 
9 that's -- 
10 MR. CRANE: This is the defendant's vehicle. 
11 THE COURT: And -- 
12 MR. CRANE: I was going to show him that. 
13 THE COURT: And ask him what? 
14 MR. CRANE: If he can identify it. This has got the 
15 trunk and the front of it. I mean, that wasn't on there, 
16 but -- 
17 MR. ROGERS: I haven't asked anything about the 
18 defendant's vehicle that this would be relevant to. It's 
19 beyond the scope. Like I say, if he's going to call some 
20 other witness -- 
21 MR. CRANE: You didn't ask him anything about prior 
22 to the time they went to the murder? You didn't ask him 
23 anything about leaving in a car? You didn't ask him anything 
24 about generally his memory being faulty? You didn't ask him 
25 anything about who drove from the bar to home? I mean, the 
869 
 1 car -- 
2 MR. ROGERS: I didn't ask him anything these 
3 pictures have to do with. Like I said, if all we are talking 
4 about is order of proof and you intend to call a witness who 
5 can identify those photographs, then -- 
6 MR. CRANE: I've got one on the stand. 
7 MR. ROGERS: But he hasn't -- he wasn't asked about 
8 them in direct and he wasn't asked about these photographs in 
9 cross. 
10 MR. CRANE: He was asked all kinds of questions 
11 about the car on direct. 
12 THE COURT: He was asked questions on both direct 
13 and cross about the vehicle and who was driving. And I'm 
14 going to overrule your objection if it's simply to physically 
15 identify what the car looked like. If he's able to. 
16 - - - 
17 The following proceedings were held in open court: 
18 MR. CRANE: Approach the witness, Judge? 
19 THE COURT: You may. 
20 Q. I want to show you just these top two photographs, 
21 State's Exhibit 87A and 87B for identification. Do you 
22 recognize what's in 87A? 
23 A. That's Ryan Ferguson's car. 
24 Q. What about 87B? 
25 A. That's Ryan Ferguson's trunk. 
870 
 1 Q. Back of his car and then a shot of -- what is that? 
2 Passenger side? 
3 A. That's correct. 
4 MR. CRANE: Judge -- 
5 Q. Are these fair and accurate depictions of the 
6 vehicle as you remember it, I know there's some evidence 
7 sticker on there, but back in October, November 2001? 
8 A. Yes. 
9 MR. CRANE: Judge, I'd offer these two photographs. 
10 I've got copies of those made to put on the presenter to 
11 publish to the jury. 
12 MR. ROGERS: Same objection, Your Honor. Beyond the 
13 scope of cross. 
14 THE COURT: State's Exhibits 87A and 87B are 
15 admitted, the objection being overruled. 
16 - - - 
17 State's Exhibits 87A and 87B admitted into evidence. 
18 - - - 
19 Q. Show you what's marked as 87A. I know that isn't 
20 the greatest picture on that thing, but you saw what I was 
21 showing you there. What is that? 
22 A. That's Ryan Ferguson's Mercedes. 
23 Q. And showing you 87B, what does this photograph 
24 depict? 
25 A. The trunk of Ryan Ferguson's Mercedes. 
871 
 1 Q. And I know there's an evidence sticker on there. 
2 A. Yeah. 
3 Q. But is that the trunk, as far as you can tell, 
4 assuming it's on that other photograph, same car -- 
5 A. Yeah, that's correct. 
6 Q. -- that you recall the defendant getting into at 
7 various times prior to and after the murder? 
8 A. That's correct. 
9 Q. When you took a look at -- take advantage while the 
10 lights are still kind of dim. This drawing that you did at 
11 the police department with Detective Nichols, of the tire 
12 tool? 
13 A. Yeah. 
14 Q. Did you testify on cross-examination that the hook, 
15 little part right here that juts out, was that the portion 
16 you took off before you left? I couldn't understand your 
17 testimony. 
18 A. That was -- I knew that there was something that I 
19 took off. And I thought that it was possible that the -- 
20 that it might have been something like that, but -- 
21 Q. Well, but the part -- 
22 A. That was like a handle or something. I'm not -- I'm 
23 not really sure. 
24 Q. Well, I -- that's what -- I'm trying to understand 
25 your testimony. Was it, with respect to that with 
872 
 1 Mr. Rogers, that this would be the tire tool when you 
2 originally had it, before you took the piece off? 
3 A. Yeah. That's correct. 
4 Q. Okay. And then you pushed the button, you 
5 indicated? 
6 A. That's correct. 
7 Q. And put the piece that came off back in the trunk? 
8 A. That's correct. 
9 Q. And it left you then with just a straight object? 
10 A. Well, it -- it would have gone like that 
11 (indicating). 
12 Q. Okay. It still had an angle in it? 
13 A. Yeah, that's correct. 
14 Q. But this would not -- there was a portion of that 
15 drawing, and I know it's just a line thing, that was not on 
16 it when you struck the victim? 
17 A. That's correct. 
18 Q. Okay. This thing here that the defense was showing 
19 you, Defendant's Exhibit D -- 
20 MR. ROGERS: B. 
21 MR. CRANE: Oh, is it B? That looked like a D. 
22 Okay. 
23 MR. ROGERS: It is B. I made the same mistake. 
24 Q. He was talking to you about different areas that you 
25 were driven when you were with Detective Nichols. Do you 
873 
 1 remember that video? 
2 A. Yeah. Yes, I do. 
3 Q. Now, just for clarification, there were some areas 
4 that you drove by that you testified you and Ryan did pass by 
5 or walk by -- 
6 A. Yes. 
7 Q. -- that night. 
8 A. Yes. 
9 Q. And then there were some areas that defense counsel 
10 showed you that were on the video that you didn't go to. 
11 A. Yeah, that's correct. 
12 Q. I believe Mr. Rogers was talking to you about a path 
13 that the police dog took an officer. Do you remember him 
14 talking to you about that? 
15 A. Yeah, down -- down Fourth Street. 
16 Q. You indicated that you read some reports on that. 
17 A. Yes. 
18 Q. Now, the testimony that you were giving earlier is 
19 that you had read that officer's report. The police dog 
20 officer's -- 
21 A. That's correct. 
22 Q. -- report. And Mr. Rogers indicated that you did 
23 recall that dog getting to the area of the diner. 
24 A. That's correct. It was on the road, though, I 
25 believe. 
874 
 1 Q. But then the report that the police officer that had 
2 the dog wrote has another path, going up away from Flat 
3 Branch Creek; right? 
4 A. That's correct. 
5 Q. And you read that report. 
6 A. Yes, I did. 
7 Q. Just like you told him. 
8 A. That's correct. 
9 Q. But you didn't adopt that report, did you? 
10 A. No, I didn't. 
11 Q. You went the other way. 
12 A. That's correct. 
13 Q. And that's what you told this jury. 
14 A. That's correct. 
15 Q. Was there any report that you read or any newspaper 
16 article that you read that had you going over Flat Branch, by 
17 the Phillips 66, and onto Providence down in that -- at that 
18 intersection? 
19 A. No. 
20 Q. What about any reports that you read that had you 
21 going across the Osco parking lot? 
22 A. No. 
23 MR. CRANE: Judge, what I'm going to -- and Mr. Weis 
24 has very kindly accommodated me on this. It is -- this is a 
25 expansion of the conversation -- I believe the excerpt was 
875 
 1 marked -- okay. There's an excerpt that was put into 
2 evidence by the defense. He was talking to his mom about the 
3 jail nurse. And I wanted to ask that this -- this section 
4 that precedes that, and includes the section the defense 
5 played for the jury, be played at this time. 
6 MR. ROGERS: No objection. 
7 THE COURT: All right. You may play it. 
8 And hopefully let us know if you're having trouble 
9 hearing. 
10 (Excerpt played.) 
11 Q. Talking to your mom. 
12 A. Yeah. 
13 Q. You're in the jail. 
14 A. Yes. 
15 Q. Now, your mom, in that conversation, starts talking 
16 to you about -- you said something about the jail nurse. 
17 A. That's correct. 
18 Q. And then she starts talking to you about "Don't talk 
19 about this case." 
20 A. That's right. 
21 Q. "It might hurt your case." 
22 A. That's right. 
23 Q. Right? You heard her say that? 
24 A. Yes. 
25 Q. And you said, "Don't -- okay. I won't. I won't. 
876 
 1 You know, I'll do what I want, but I won't -- there's nothing 
2 I can, you know, do to incriminate myself." 
3 A. Yeah. 
4 Q. Kind of getting her from worrying about it. 
5 A. That's correct. 
6 Q. And it sounds like, like mothers do, she kind of 
7 drifted into shaving and "how's the food?" Right? 
8 A. Yeah. 
9 Q. And then she said, "Now back to this jail nurse." 
10 A. Yeah. 
11 Q. And you continued to assure her that it was, "Hey, I 
12 said nothing of any consequence." 
13 A. That's correct. 
14 Q. And after you described that conversation to her, 
15 you said, "And then it was over." 
16 A. That's correct. 
17 Q. What was over? 
18 A. The conversation with the nurse was over. 
19 Q. Is your -- strike that. The jail records that 
20 Mr. Rogers was talking to you about indicate that your memory 
21 is intact. 
22 A. Yeah. 
23 Q. Okay. Now, it's a matter of semantics here, but I 
24 might forget something, you know, and go, "Golly, you know, I 
25 forgot that." But that doesn't mean my memory's not 
877 
 1 intact -- 
2 A. That's correct. 
3 Q. -- just because I forgot something. 
4 A. That's correct. 
5 Q. Okay. This experience that you've had, this 
6 terrible thing you did, has been something that has caused 
7 you problems, to say the least. 
8 A. Yeah. 
9 MR. ROGERS: Objection. Leading. 
10 THE COURT: Sustained -- well, the question has been 
11 asked and answered. The objection is untimely, but well 
12 taken. 
13 MR. ROGERS: Your Honor, I made it as soon as the 
14 question was over. It was answered before it was over. 
15 MR. CRANE: Okay. I won't do that -- ask that 
16 again. 
17 THE COURT: And I'd ask the witness to answer the 
18 questions after they're finished, because even if there's not 
19 an objection, my court reporter can't write down the question 
20 and the answer at the same time. 
21 You may ask your next question, Mr. Crane. 
22 MR. CRANE: Okay. 
23 Q. Do you have any disagreement with the records that 
24 indicate your memory's intact? 
25 A. No. 
878 
 1 Q. And Mr. Rogers talked to you a little bit about the 
2 OCD thing. 
3 A. Yes. 
4 Q. Were you ever diagnosed with any mental disease or 
5 defect that would affect your competency to testify? 
6 A. No. 
7 Q. The psychologist that was retained by your attorney, 
8 Mark Kempton, is Dr. Delaney Dean? 
9 A. That's correct. 
10 Q. You spoke with her? 
11 A. Yes, I did. 
12 Q. In -- with respect to that, anything she's generated 
13 that indicates that you're -- 
14 MR. ROGERS: Objection. Calls for hearsay. If 
15 we're going to have Dr. Dean's conclusions, I get to 
16 cross-examine. 
17 THE COURT: Well, it sounds like it's asking for a 
18 hearsay answer. 
19 MR. CRANE: Okay. 
20 THE COURT: So if you will rephrase your question. 
21 I can't tell what the full question was going to be, though. 
22 Q. Mr. Erickson, they're trying to suggest that you're 
23 nuts. 
24 MR. ROGERS: I'll object to that. 
25 Q. That you got OCD. 
879 
 1 MR. ROGERS: I object to his characterization of 
2 what I'm trying to suggest. 
3 THE COURT: Sustained. 
4 Q. You've been in front of this jury now for a day and 
5 a half or longer. Have you been oriented to time and place 
6 while you've been with us here today? 
7 A. Yes, I have. 
8 Q. Have you had any hallucinations? 
9 A. No, I haven't. 
10 Q. Have you been obsessed with anything -- 
11 A. No, I haven't. 
12 Q. -- while you've been in here? 
13 A. No, I haven't. 
14 Q. On cross-examination, Mr. Rogers asked you some 
15 questions about what you remembered from John Short's report 
16 of the first interview with you back on March 10th, '04? 
17 A. That's correct. 
18 Q. And he asked you if you remembered a section wherein 
19 you were asked if you had said something to the cleaning 
20 lady. And the report reads: "Before or after Ferguson had 
21 strangled the victim." Do you remember him talking to you 
22 about that? 
23 A. Yes. 
24 Q. I think maybe that was this morning. 
25 What he did not read you and what I want to ask you 
880 
 1 about is earlier in that report, I believe you testified to 
2 this, but you weren't asked about it on cross, do you recall 
3 stating that you thought it was at that point, after you saw 
4 the cleaning lady, "at that point he was," you, "were saying 
5 something to a cleaning lady who was at the back door of the 
6 business." Do you recall, when you were first talking to 
7 Mr. Short -- Detective Short, referencing saying something to 
8 a cleaning lady at the back door of the Tribune? 
9 A. Yes. 
10 Q. And that, in the report, comes before the second 
11 reference which Mr. Rogers read you, that Mr. Short -- 
12 Detective Short wrote: "I then asked Erickson if he had said 
13 something to the cleaning lady before or after Ferguson had 
14 strangled the victim." So, when you were talking to the 
15 police, who brought up the 
16 saying-something-to-the-cleaning-lady fact? 
17 A. I did. 
18 Q. Not the police. 
19 A. That's correct. 
20 Q. The number of times that you struck the victim, I 
21 believe I asked you this on direct, are you -- can you 
22 testify today as to the exact number of times that you struck 
23 the victim with the weapon on the head? 
24 A. No. 
25 Q. Can you tell us whether or not Ryan Ferguson had the 
881 
 1 weapon and struck the victim on the head? 
2 A. No. 
3 Q. You do not know the answer to that question? 
4 A. I don't know. 
5 Q. You can't say one way or the other? 
6 A. No, I can't. 
7 Q. After you finished -- after you had delivered your 
8 last blow to the victim, and he was down on the pavement, 
9 what do you recall doing with the weapon? 
10 A. I dropped it. 
11 Q. And then after that what did you do? 
12 A. I sat down on the retaining wall. 
13 Q. And then there was a period of time there where you 
14 were looking down or didn't see what he was doing? 
15 A. That's correct. 
16 Q. What price, what cost was there for remembering and 
17 articulating your memories of participating in this murder? 
18 MR. ROGERS: Objection, Your Honor. That's, A, 
19 vague; secondly, self-serving; and thirdly, bolstering. 
20 THE COURT: I'm going to sustain that it appears to 
21 be vague. If you would rephrase your question, please. 
22 Q. What price, not money, what cost was it for you, in 
23 your life, the more you articulated these memories to the 
24 police? 
25 A. My freedom. My life. My family. Everything. 
882 
 1 Doing anything with myself. 
2 Q. Your freedom. 
3 A. Yeah. 
4 MR. CRANE: I think that's all I have, Judge. 
5 THE COURT: Recross. 
6 MR. ROGERS: Thank you, Your Honor. 
7 - - - 
8 RECROSS-EXAMINATION 
9 BY MR. ROGERS: 
10 Q. Let's talk about the drawing that you made for 
11 Detective Nichols? 
12 A. Uh-huh. 
13 MR. CRANE: You want me to turn that off? 
14 MR. ROGERS: Turn that off, please. 
15 Q. And you are shown in the videotape that we saw of 
16 you and Nichols in the interrogation room, making this 
17 drawing; correct? 
18 A. That's right. 
19 Q. And that's the drawing that you made. 
20 A. That's right. 
21 Q. And you have watched the videotape of you talking to 
22 Nichols as you made the drawing. Talking with Nichols. You 
23 talk, he talks; right? 
24 A. That's right. 
25 Q. And you didn't say anything like, "This curvy part 
883 
 1 is the part I took off," did you? 
2 A. No, I didn't. 
3 Q. And you didn't say that when I was questioning you 
4 earlier today, did you? 
5 A. No, I didn't. 
6 Q. And what you told Nichols at the time, describing 
7 the implement that you were drawing for him, was, "I think it 
8 was -- it was skinny, so, I mean, I don't think it was a 
9 wrench to get the big lug nuts off a tire. I think it was 
10 something for, like, the jack." His question: "Like, a 
11 handle for the jack?" Your answer: "I think it had a handle 
12 on it, actually. Like, it was -- looked like a question mark 
13 with, like, a long -- like, the top's very small, and then it 
14 went into a question mark. So you twist it like this. I can 
15 draw -- I can draw --" And he says, "Like -- like a 
16 ratchet?" And you said, "Can I draw you a picture?" He 
17 says, "Sure." And then you draw this picture. And you say, 
18 "I think it basically just looked like that." And he asked 
19 you, "And it was a round piece of wrought iron or --" And 
20 you said, "Yeah." And he finishes his question: "-- or 
21 steel." You say, "Yes." And you say, "And you remember it 
22 as being round?" Excuse me. He says, "And you described it 
23 as being round." Your answer: "Yes." And then starts 
24 talking about how long. Is that correct? 
25 A. Yes, I believe so. 
884 
 1 Q. And that's what we saw on the videotape, probably 
2 more than once? 
3 A. Yes. 
4 Q. And so you're not saying this is the part that came 
5 off. You're saying this is a part that's used to turn a 
6 screw jack; right? 
7 A. No. I'm saying -- I remember there was something on 
8 it. There was some kind of -- some kind of extremity on it. 
9 And I remember it came off. 
10 Q. But in terms of what you were telling Nichols when 
11 you drew this picture, you're drawing a picture of a handle 
12 that would be used to turn the screws of a screw jack; right? 
13 A. I don't know. 
14 Q. So you can slip this through the two little holes on 
15 the screw and turn it around and around and around. 
16 A. I don't know. 
17 Q. And you can move it up and down, so you won't have 
18 to take it out and put it back in the next time you turn it 
19 around if you're down low against the pavement; right? 
20 A. I don't know. 
21 Q. That's what you were trying to describe to him when 
22 you drew it; isn't that true? 
23 A. I don't know. 
24 Q. Okay. And you drew that and described it to Nichols 
25 before you had a chance to see any of the autopsy pictures; 
885 
 1 is that a fair statement? 
2 A. Yeah, I believe that's correct. 
3 Q. They didn't show you autopsy pictures there at the 
4 police station, did they? 
5 A. No, I don't believe they did. 
6 Q. Okay. Now when you talked to Nick Gilpin out in 
7 front of John Alder's house and again at Nick's house, you 
8 were drunk. 
9 A. That's correct. 
10 Q. And you told him, each time you talked to him, that 
11 you didn't know whether you had real memories or whether they 
12 were something that you had dreamed or dreamed up. Correct? 
13 A. I don't believe I said that at every instance. No, 
14 I don't believe I said that every instance. I believe that I 
15 had mentioned that a couple of times, yes, throughout the 
16 conversation. 
17 Q. Throughout the conversation -- 
18 A. Yeah, that's correct. 
19 Q. -- that was the -- sort of the background is: "Hey, 
20 I don't know if this is real or not, but here's what I'm 
21 feeling." Right? 
22 A. Yeah. 
23 Q. And the same is true of your conversations with Art 
24 Figueroa. Correct? 
25 A. Yes. 
886 
 1 Q. You told Art Figueroa that you didn't know if this 
2 was real or something you dreamed up. Right? 
3 A. I told him I -- there were things I didn't know 
4 whether they were memories or a dream. 
5 Q. Memories or a dream. 
6 A. Yeah. 
7 Q. Okay. Now -- 
8 THE COURT: Can we turn the lights back on? Are you 
9 still using that screen? 
10 MR. ROGERS: I'm going to use it, not still, but 
11 again, Your Honor. 
12 THE COURT: Okay. 
13 MR. ROGERS: If I might. 
14 Q. Mr. Crane showed you pictures of Mr. Ferguson's car; 
15 is that right? 
16 A. Yes, he did. 
17 MR. CRANE: Right here. 
18 Q. Is that the way Mr. Ferguson's car looked in October 
19 of 2001? Roughly. 
20 A. Yes. 
21 Q. So it wasn't a brand new kind of car. 
22 A. No, it wasn't. 
23 Q. It was an old car. 
24 A. Yes. 
25 Q. And you rode in it several times. 
887 
 1 A. Yes. 
2 Q. And it was the car that he was given by his father 
3 that his father used to drive; correct? 
4 A. Yes. 
5 Q. And it was a 1993 Mercedes, wasn't it? 
6 A. I believe so. 
7 Q. And he was given it to him -- given it to -- it was 
8 given to him on his 16th birthday, which would have been 
9 October 19th, 2000; is that correct? 
10 A. I'm not sure. 
11 Q. You're not sure when his birthday is? 
12 A. No, I'm not -- well, yeah. I'm also not sure when 
13 the car was given to him. 
14 Q. All right. Did you tell us earlier it was for his 
15 16th birthday? 
16 A. I said I thought it might have been for his 16th 
17 birthday, but I wasn't sure. 
18 Q. And at that time it was already seven years old. 
19 A. Yeah. 
20 Q. And had a lot of miles on it. 
21 A. Yes, it did. 
22 Q. Did you ever look at the speedometer -- odometer to 
23 see how many miles it had? 
24 A. I remember it had upward of maybe 150,000 miles on 
25 it. It's not really -- 
888 
 1 Q. A couple hundred thousand perhaps? 
2 A. I can't remember. 
3 Q. Okay. Still not a bad car for a kid; right? 
4 A. No. 
5 Q. Better than yours, because you didn't have one. 
6 A. Yeah. That's right. 
7 Q. Now, was it your testimony on redirect examination 
8 by Mr. Crane, when he played that entire portion of the 
9 conversation with your mother, is it your testimony, even 
10 after having heard that, both when I played it I think at 
11 least twice, and now that he's played the whole extended 
12 thing with the food and stuff in it, is it your testimony 
13 that when you said "it was over," that you were not talking 
14 about life as you knew it as a free person in society; you 
15 were talking about the conversation with the nurse. 
16 A. It's my testimony that I was talking about the 
17 conversation with the nurse. 
18 Q. And you're certain of it. 
19 A. That's my testimony. 
20 Q. And you're certain of it. 
21 A. I am a hundred percent certain of that. 
22 Q. A hundred percent certain of that. 
23 A. Yes, I am. 
24 Q. All right. Now, let's talk about the report that 
25 Mr. Short wrote on the interview which was not recorded. And 
889 
 1 now that Mr. Crane has been able to go into it in detail, 
2 I'll be able to do the same. And what I'm going to focus on 
3 is the issue of what the report says you said when -- to the 
4 cleaning lady when. Okay? So I want to make sure you can 
5 see what we're talking about. 
6 First of all, you're talking with Short. And Short 
7 asks you if you had seen it or not, talking about your claim 
8 that you think Ryan strangled Mr. Heitholt. 
9 MR. CRANE: I'm sorry. What are you talking about? 
10 MR. ROGERS: I'm getting some foundation. 
11 Q. Short is asking you if you had seen Ferguson 
12 strangle the victim. You then said you had seen Ferguson 
13 strangle him out of the corner of your eye? 
14 A. That's what I said, yes. 
15 Q. Okay. And then you said you thought at that point 
16 you were saying something to a cleaning lady who was at the 
17 back door of the business. Correct? Is that what -- 
18 A. Yes. 
19 Q. That's when the subject of the cleaning lady is 
20 first mentioned; isn't that right? 
21 A. Well, let me see it. 
22 MR. CRANE: Well, Judge, I didn't show him the 
23 report. 
24 MR. ROGERS: No, you read it. 
25 MR. CRANE: Mine was redirect, based on questions 
890 
 1 raised at cross. Now he's being provided the report to read, 
2 as to other subjects that may have been brought up on direct, 
3 cross, or may not have been. 
4 MR. ROGERS: I'm only going to ask him about this 
5 particular thing. He wants to see the whole thing to make 
6 sure I'm putting it in the correct context. 
7 A. Yeah, that's -- here you go. Thank you. 
8 Q. Is that correct? 
9 A. That's what it says in the report, yeah. 
10 Q. Okay. And so there's nothing there, the first time 
11 that the report says you mentioned it, about what was said; 
12 correct? 
13 A. No, there's nothing about that in the report. 
14 Q. Okay. But down at the bottom of the same page he 
15 goes back to the subject and he says, "I then asked Erickson 
16 if he had said something to the cleaning lady before or after 
17 Ferguson had strangled the victim. Erickson stated that he 
18 did not know. He thought he said something to the cleaning 
19 lady" -- excuse me, "to the lady at that time, but was not 
20 sure." Correct? 
21 A. That's what it -- that's what it says, yeah. 
22 Q. And then he goes on to say, "I told Erickson that 
23 the cleaning lady told the police that someone asked for 
24 help. Erickson stated that was him." 
25 A. That's what it says right there. 
891 
 1 Q. Okay. And so according to the report that Mr. Crane 
2 asked you about on redirect examination, the first person who 
3 said what was said to the cleaning lady was not you, but was 
4 Officer Short. 
5 A. Yeah, that's what it says. 
6 Q. Now, you have told Mr. Crane on redirect examination 
7 about sitting on a retaining wall there at the parking lot; 
8 is that correct? 
9 A. Well, I believe I was sitting in between the parking 
10 lot and the retaining wall. The retaining wall would have 
11 been behind me. 
12 Q. Now you're saying you're sitting -- 
13 A. Well, it was like on the edge of the retaining wall. 
14 The retaining wall, it went out at an angle. So it would 
15 have been hard to sit on the retaining wall itself. I was 
16 sitting maybe against it, with my head like that, but I was 
17 sitting down. 
18 Q. Now, my question was what you told Mr. Crane on 
19 redirect examination. 
20 A. Against the retaining wall. 
21 Q. You said "against the retaining wall." You didn't 
22 say "on the retaining." 
23 A. That's correct. 
24 Q. And now you explained that that's because you 
25 couldn't sit on the retaining wall due to the angle of it. 
892 
 1 A. That's correct. 
2 Q. Isn't it true that you had told the police officers 
3 in your videotaped statements that you were sitting on a 
4 curb? 
5 A. I believe I said a curb or a parking block. 
6 Q. And you also said a parking block. 
7 A. Yeah, I believe that's right. 
8 Q. And now you're saying against the retaining wall. 
9 A. That's correct. 
10 MR. ROGERS: That's all the questions I have. 
11 THE COURT: Redirect? 
12 - - - 
13 FURTHER REDIRECT EXAMINATION 
14 BY MR. CRANE: 
15 Q. Hey, before you talked to Detective Short, you 
16 talked to Nick Gilpin and Art Figueroa. Is that correct? 
17 A. That's correct. 
18 Q. What did you tell Art Figueroa -- strike that, Nick 
19 Gilpin about a cleaning lady? 
20 A. I told him that I told a cleaning lady to go get 
21 help. 
22 Q. And thereafter you talked to Art. You've already 
23 testified to this earlier. Is that correct? 
24 A. That's correct. 
25 Q. And what did you tell Art Figueroa, if anything, 
893 
 1 about a cleaning lady the night you beat the victim and 
2 Ferguson strangled him? 
3 A. I told him the cleaning lady -- I told him that I 
4 told the cleaning lady to go get help. 
5 Q. And then you talked to Short. 
6 A. That's correct. 
7 Q. At the police department. And you were the first 
8 one to bring up something being said to the cleaning lady. 
9 A. That's correct. 
10 MR. CRANE: That's all the questions I have. 
11 THE COURT: Recross. 
12 - - - 
13 FURTHER RECROSS-EXAMINATION 
14 BY MR. ROGERS: 
15 Q. And at the time you brought this up to Short at the 
16 police department, after you supposedly said whatever you 
17 supposedly said to Gilpin, and after you supposedly said 
18 whatever you supposedly said to Figueroa, you didn't say to 
19 Detective Short, "I told the cleaning lady to get help" until 
20 after he told you that's what the cleaning lady had told the 
21 police. Isn't that true? 
22 A. No, I can't remember. I really was certain that I 
23 had told him that I told the cleaning lady to go get help 
24 before he said anything regarding the cleaning lady. But 
25 that's to the best of my -- to the best of my memory, he 
894 
 1 didn't say anything before I said anything about -- regarding 
2 the cleaning lady or telling her to go get help. 
3 Q. But you will agree that according to the report, he 
4 is the one who introduced the subject of what was said to the 
5 cleaning lady, "Go get help." 
6 A. That's what it says in the report, yeah, that's 
7 correct. 
8 Q. All right. 
9 MR. ROGERS: Thank you. 
10 THE COURT: Redirect? 
11 MR. CRANE: No. 
12 THE COURT: May the witness be finally excused? 
13 MR. ROGERS: From the defense, Your Honor. 
14 MR. CRANE: Well, I think we know where we can find 
15 him. 
16 THE COURT: Well, may I excuse him for this 
17 afternoon? 
18 MR. CRANE: Yes, ma'am. 
19 THE COURT: The defendant may step down. And he is 
20 excused for the afternoon. 
21 Mr. Erickson, I would ask you not to discuss your 
22 testimony with any other witness who might be called in this 
23 case. You are free to be returned to the custody of the 
24 sheriff at this time. 
25 MR. ROGERS: May we approach, Your Honor? 
895 
 1 THE COURT: Yes. 
2 - - - 
3 Counsel approached the bench and the following 
4 proceedings were held: 
5 MR. ROGERS: Would this be a convenient time to 
6 recess? Mr. Ferguson needs one. I know this is a little 
7 earlier unusual. 
8 THE COURT: Yeah, it is. I take it you don't have a 
9 brief witness as your next witness. 
10 MR. CRANE: I don't know that there is such a thing 
11 any more, but if he needs to go to the bathroom, Judge, I 
12 think that's probably -- 
13 THE COURT: Why don't we take a break. 
14 MR. ROGERS: Thanks. 
15 - - - 
16 The following proceedings were held in open court: 
17 THE COURT: Ladies and gentlemen, just to take a 
18 short break before another witness that might be more 
19 lengthy. 
20 The Court again reminds you of what you were told at 
21 the first recess of Court. Until you retire to consider your 
22 verdict, you must not discuss this case among yourselves or 
23 with others, or permit anyone to discuss it in your hearing. 
24 You should not form or express any opinion about the case 
25 until it is finally given to you to decide. Do not read, 
896 
 1 view, or listen to any newspaper, radio, or television report 
2 of the trial. 
3 Take about a 15-minute break and then come back, 
4 please. 
5 DEPUTY COURT MARSHAL WERNER: Yes, ma'am. 
6 THE COURT: Be in recess. 
7 (Recess taken.) 
8 - - - 
9 The following proceedings were held out of the presence 
10 of the jury: 
11 THE COURT: I need to reiterate, we're not to have 
12 any cell phones on in the courtroom. If you have a telephone 
13 call that comes through, either through vibrating mode or 
14 ringing mode, your phone will be checked until the end of 
15 court today. There are no cameras in this courtroom, other 
16 than those that have been authorized under Supreme Court 
17 rule. If you have a camera in any form, whether that's a 
18 film camera, a digital camera, or one in a cell phone, and 
19 you take it out and take pictures, it will be checked until 
20 the end of this trial. Just so we understand that. 
21 You may return the jury to the courtroom. Assuming 
22 the state's ready and the defense? 
23 MR. CRANE: Ready, Judge. 
24 MR. ROGERS: Ready, Your Honor. 
25 THE COURT: All right. 
897 
 1 - - - 
2 The following proceedings were held in the presence of 
3 the jury: 
4 THE COURT: State may call its next witness. 
5 MR. CRANE: State calls Bill Hawes. 
6 THE COURT: Raise your right hand. 
7 - - - 
8 WILLIAM HAWES, 
9 being first duly sworn by the Court, testified as follows: 
10 THE COURT: Would you take the witness stand. 
11 - - - 
12 DIRECT EXAMINATION 
13 BY MR. CRANE: 
14 Q. Give us your name, please, sir. 
15 A. William Hawes. 
16 Q. Okay. And what's your occupation? 
17 A. I am an investigator for the Boone County 
18 prosecutor's office. 
19 Q. How long have you been with the prosecutor's office? 
20 A. Twelve years. 
21 Q. And what did you do before that? 
22 A. I was a Columbia police officer for 20. 
23 Q. What was your position when you left the Columbia 
24 Police Department? 
25 A. I was a sergeant in charge of the crimes against 
898 
 1 victims unit. 
2 Q. How old are you? 
3 A. Fifty-eight. 
4 Q. Do you have any problems walking? 
5 A. Well, yeah, I do have some, but I can do it. 
6 Q. Okay. The reason why I'm asking you that, I'm 
7 directing your attention to the morning of August 2nd, 2005. 
8 What did I ask you to do? 
9 A. I walked the route that Charles Erickson described 
10 on the -- that related to the events of November 1st, 2001. 
11 Q. What was the weather like that morning? 
12 A. It was fairly warm. 85 degrees. 
13 Q. Okay. What did you carry as you walked to these 
14 various locations? 
15 A. I took notes. Wrote down times. 
16 Q. And what did you use to time how long it took to get 
17 from one point to the next? 
18 A. I have a stopwatch on my wrist watch. 
19 Q. Okay. Can you describe for the jurors the speed or 
20 pace at which you walked these routes. 
21 A. Just a normal pace. I didn't hurry. I wasn't slow. 
22 Just normal pace. 
23 Q. All right. Let me direct your attention to what's 
24 marked as State's Exhibit 9. 
25 MR. CRANE: And Judge, I'd ask the witness be able 
899 
 1 to step down. 
2 THE COURT: He may. 
3 Q. Okay. Now you got to move it up a little bit. 
4 MR. CRANE: Can everybody see that okay? 
5 Q. Okay. If you would, tell us where you started. 
6 A. I started at the front door of By George's, which is 
7 located near Number 1 on the photo. 
8 Q. And from that location, where did you walk? 
9 A. I walked down the street, to First and Ash, which 
10 would be this intersection right here. 
11 Q. Okay. And how long did it take you to walk from By 
12 George bar to First and Ash Street? 
13 A. 3 minutes. 
14 Q. The -- from the corner of -- well, I'm looking at 
15 your report -- 
16 A. Oh, I'm sorry. 
17 Q. -- that we did -- you sent this on -- let's see. 
18 You dated it August 7. August 2nd. Talked about your 
19 walking times. 
20 A. It was 2 minutes and 20 seconds. 
21 Q. Okay. You sure about that? 
22 A. Yes. 
23 Q. You want to look at your report? 
24 A. No. I've got it here. 
25 Q. Okay. 
900 
 1 (Witness referring to report.) 
2 A. Let's go ahead. 
3 Q. Okay. Let me ask you that again. From George's to 
4 First and Ash Streets, how long did it take you to walk to 
5 that destination? 
6 A. 2 minutes and 20 seconds. 
7 Q. From the corner then of First Street and Ash, how 
8 long -- where did you go? 
9 A. I walked down Ash Street, to Providence, and over 
10 towards the alley right here, which is -- oh, it's just -- 
11 Providence and Ash is where I stopped. 
12 Q. Okay. So from First and Ash to Providence and Ash, 
13 how long did that take you? 
14 A. That took a minute and 50 seconds. 
15 Q. Okay. And let me just show you State's Exhibit 10 
16 here. 10B is By George's? 
17 A. Yes, it is. 
18 Q. Okay. And if we look at 10C, you walked this 
19 direction? 
20 A. Right. That's First Street. 
21 Q. Okay. And down to the corner in 10D? 
22 A. That's correct. 
23 Q. Okay. And then in 10E we see -- what's depicted in 
24 that photograph? That's part of what street? 
25 A. Ash. 
901 
 1 Q. Going down to? 
2 A. The Tribune. 
3 Q. Okay. And what's the road in between? 
4 A. Providence crosses. 
5 Q. Okay. So from First and Ash to Providence and Ash 
6 was how long? 
7 A. 1 minute and 50 seconds. 
8 Q. Okay. Now, where did you go from there? 
9 A. I went south on Providence, to the alley, across the 
10 street, and used the alley to go up to the Tribune building. 
11 Q. Okay. Where did you stop? 
12 A. At the park -- well, at the Dumpster area. 
13 Q. Which isn't there any more. 
14 A. It's not here. It's -- 
15 Q. Okay. Is it correct you stopped at the edge of the 
16 parking lot? 
17 A. Right. 
18 Q. Where the Dumpster enclosure used to be? 
19 A. It would be this location here. 
20 Q. Okay. And for the record, on State's Exhibit 9, the 
21 Dumpster enclosure has been removed in that photograph. 
22 A. That's correct. 
23 Q. By the time this was taken. 
24 A. Yes. 
25 Q. Okay. And so from that location on Providence up 
902 
 1 the alley to the Dumpster enclosure, how long did that take 
2 you? 
3 A. 1 minute and 30 seconds. 
4 Q. Now, where did you go from the parking lot after 
5 that? 
6 A. I -- from the parking lot of the Tribune, I went up 
7 the alley and south on Fourth Street to the area of the 
8 diner. 
9 Q. Okay. You want to point out the diner? And you 
10 might be blocking -- 
11 JUROR: You're all right. 
12 Q. Right there. 
13 A. (Indicating.) 
14 Q. Okay. So from the parking lot to the -- that's down 
15 Fourth Street, over Walnut, over Broadway, and to the diner. 
16 A. That's correct. 
17 Q. And how long did that take you? 
18 A. 3 minutes. 
19 Q. From the diner, where did you go? 
20 A. From the diner, I crossed Fourth Street, into Flat 
21 Branch Park, and crossed the creek, up the bank, to the north 
22 entrance of the service station that's here at the corner of 
23 Locust and Providence. 
24 Q. Okay. And how long did that process take you? 
25 A. 2 minutes and 52 seconds. 
903 
 1 Q. And then from the filling station at the 
2 intersection there of Providence and Locust? 
3 A. Yes. 
4 Q. Where did you go? 
5 A. I crossed Providence, went diagonally across the 
6 Osco/Office Depot parking lot, across Broadway, and I 
7 returned to By George's. 
8 Q. And how long did that walk -- 
9 A. 5 minutes and 29 seconds. 
10 Q. Okay. Mr. Hawes, what's the total time it took you 
11 to walk that route; basically George's, around the Tribune 
12 building, down Fourth Street, diner, Flat Branch, Osco, and 
13 back to George's? 
14 A. 17 minutes and 1 second. 
15 Q. And what is the total time it took you to walk from 
16 First Street and Ash Street to the Tribune parking lot? The 
17 total time it took you to get there. 
18 A. 3 minutes and 20 seconds. 
19 Q. Based on the route you took. 
20 A. Yes. 
21 Q. Okay. 3 minutes and 20 seconds from First and Ash 
22 to the Tribune parking lot. 
23 A. That's correct. 
24 Q. What did you do regarding this case on September 
25 25th of this year? 
904 
 1 A. I drove from the intersection of First and Ash out 
2 to Charles Erickson's residence and then over to Ryan 
3 Ferguson's residence. 
4 Q. What time did you -- what time of day were you 
5 driving? 
6 A. It was about 2:00 in the afternoon. 
7 Q. You drove it two times; right? 
8 A. Yes. 
9 Q. The first time it was 2 in the afternoon? 
10 A. Yes. 
11 Q. Okay. How long did it take you to get to Erickson's 
12 residence? Well, let me ask you, how did you get there? 
13 A. I went from -- here's First and Ash right here. And 
14 I went, from that intersection, east, to Providence, south on 
15 Providence, to Broadway, went west on Broadway up to 
16 Fairview, south on Fairview, west on Chapel Hill, and -- to 
17 the Erickson residence, which is at 3706 Chinkapin. 
18 Q. Okay. And now let me ask you: How long did it take 
19 you to get there? 
20 A. 6 -- well -- to Chinkapin? 
21 Q. Yes. The Erickson residence. 
22 A. I've got the total down to the Ferguson residence. 
23 Q. Okay. All right. 
24 A. I have the total down -- 
25 Q. We can do it that way. When you got to -- my fault. 
905 
 1 When you got to the Erickson residence, what did you do? 
2 A. I stopped there and paused -- 
3 Q. And then what did you do? 
4 A. -- in front of the residence, and turned around and 
5 drove to Ryan Ferguson's residence. 
6 Q. Okay. How long did you pause? Three, four hours 
7 or -- 
8 A. Less than 30 seconds. As if I were dropping 
9 somebody off. 
10 Q. And then you went to Ferguson's. 
11 A. That's correct. 
12 Q. Okay. And how did you get over there? 
13 A. Got back on Chapel Hill, drove over here to 
14 Martinshire, and it turns into Lloyd Drive. And 2513 Lloyd 
15 Drive is the Ferguson residence. 
16 Q. Okay. And how long -- now let me ask you, how long 
17 did that take you? 
18 A. 16 minutes and 15 seconds. 
19 Q. And what was your total mileage by the time you got 
20 to the Ferguson residence? 
21 A. Six and a half miles. 
22 Q. Okay. And then on October 6, 2005? 
23 A. Yes. 
24 Q. What did you do? 
25 A. I drove the route again. 
906 
 1 Q. Okay. At what time? 
2 A. 1:45 a.m. 
3 Q. A.m. 
4 A. That's correct. 
5 Q. Okay. And did you take that same route? 
6 A. I did. 
7 Q. Okay. And at that time, on the 6th of October, at 
8 2 a.m., how long did it take you to get from First and Ash to 
9 Mr. Ferguson's residence? 
10 A. 14 minutes and 30 seconds. 
11 Q. A little bit less. 
12 A. A little bit less. 
13 Q. Okay. 
14 MR. CRANE: I don't think I have any other questions 
15 of this witness. 
16 THE COURT: You may resume the stand. 
17 Cross-examination? 
18 MS. BENSON: Thank you, Your Honor. 
19 - - - 
20 CROSS-EXAMINATION 
21 BY MS. BENSON: 
22 Q. I'd like to first talk to you about your walking 
23 around downtown, Mr. Hawes. Rather than starting at By 
24 George, I want us to start at the point that you're at the 
25 Tribune. Okay? And for the sake of this discussion, we need 
907 
 1 to discuss the approximate time of the murder. Now it's my 
2 understanding that Mr. Heitholt logged out at 2:08 from the 
3 computer system; is that correct? 
4 A. I think that's right. 
5 Q. Okay. And in addition, after logging out, he paused 
6 and talked with someone in the parking lot; is that correct? 
7 A. That is -- that's from police reports, yes. 
8 Q. Okay. So it would have to be sometime after that 
9 that the murder occurred, obviously. 
10 A. That's correct. 
11 Q. Okay. So, we have that at least 2:10, at the 
12 earliest, probably more in the neighborhood of 2:15, is that 
13 correct, that it could have occurred? 
14 MR. CRANE: Judge, I'm going to object insofar as 
15 this witness. He doesn't have any personal knowledge -- he 
16 does have knowledge of the logoff time, but he doesn't have 
17 any personal knowledge about when the crime occurred. 
18 MS. BENSON: I could rephrase it somewhat. 
19 Q. Would it be reasonable to assume that it occurred 
20 sometime after he logged off and talked with someone in the 
21 parking lot and before the 911 call was made at 2:26? 
22 A. Yes. 
23 Q. Okay. So let us assume for the sake of our 
24 discussion here that it occurred at probably the earliest 
25 time frame on that, which would be 2:10 in the morning. 
908 
 1 Okay? 
2 A. Okay. 
3 Q. Just an assumption for our discussion. 
4 A. Okay. 
5 Q. It's my understanding it took you 3 minutes to go 
6 from the Tribune to the diner area; is that correct? 
7 A. That's correct. 
8 Q. And then from the diner, through the creek, and up 
9 to the gas station, the Phillips 66 there, it was 2 minutes 
10 and 52 seconds? 
11 A. That's correct. 
12 Q. And finally, from the gas station, through the Osco 
13 parking lot, the Office Depot parking lot, and to By George, 
14 that was 5 minutes and 29 seconds; is that correct? 
15 A. That's correct. 
16 Q. So the total distance -- or total minutes involved 
17 in that would have been 11 minutes and 21 seconds? 
18 A. I'll agree with you. 
19 Q. Trust my word on that? Trust my math? 
20 A. I'll agree with your math. 
21 Q. Okay. So, for the sake of our discussion, if the 
22 murder occurred at 2:10, assume for the sake of argument that 
23 the act itself would have taken several minutes. Let's take 
24 our leave time from the Tribune parking lot at 2:15, for the 
25 sake of our discussion. Okay? 
909 
 1 A. Okay. 
2 Q. And I understand you don't know if that's the time 
3 or not, but let's assume that whoever did this left at 2:15 
4 in the morning from the Tribune parking lot. Okay? 
5 A. Okay. 
6 Q. And I'm sorry, I said 2:10 earlier, but let's just 
7 say -- let's say 2:15. With an 11 minute and 21 second 
8 travel time, the earliest one could get back to By George 
9 would be 2:26 in the morning; is that correct? 
10 A. Well, I walked a normal pace. I'm confident that it 
11 could have been shortened if you were in a hurry. 
12 Q. If -- and we don't know that. We don't know if the 
13 people were walking; we don't know if they were running. 
14 They were described as walking briskly; is that correct? Or 
15 are you familiar with that? 
16 A. I mean, I -- in a hurry. 
17 Q. Okay. Well, you walked. 
18 A. I wasn't in a hurry. 
19 Q. Okay. You also didn't add in the time it would take 
20 to stop in the creek and wash someone's hands; correct? 
21 A. No, I didn't. I didn't do that. 
22 Q. You didn't add in time to have trouble getting up 
23 the embankment. 
24 A. I was able to get up the embankment all right. 
25 Q. But you didn't add extra time if someone had 
910 
 1 trouble. 
2 A. No. I was able to climb the embankment. 
3 Q. Okay. And you didn't add in extra time for stopping 
4 in the intersection to talk to someone. 
5 A. No. You're talking about Locust and Providence? 
6 Q. Right. 
7 A. Near that intersection? 
8 Q. Near that -- 
9 A. Right. I didn't -- no. 
10 Q. Okay. And you didn't add in extra time to go to the 
11 car, parked two blocks down, and discard items and then head 
12 back, two blocks up, to the bar. 
13 A. No. I went -- stopped at the front door of By 
14 George's again. 
15 Q. All right. So even without adding all those extra 
16 things in, the earliest that one could have gotten back, at 
17 your pace, would be 2:26 in the morning. To By George. 
18 A. Yes. 
19 Q. Correct? 
20 A. At my pace. 
21 Q. And that is about one hour after the normal bar 
22 closing time in Columbia, is it not? 
23 A. That's correct. 
24 Q. Now, I'm going to ask you about something a little 
25 bit different, that was not brought up in direct. Through 
911 
 1 your investigation, you have determined that a Tribune 
2 employee named Michael Boyd was out in the parking lot. 
3 MR. CRANE: Well, Judge, I'm going to object. This 
4 calls for hearsay. 
5 THE COURT: I don't know that it calls for hearsay. 
6 I need to first hear what the question is. 
7 MR. CRANE: Okay. 
8 MS. BENSON: I'll finish the question. 
9 Q. Have you determined that Michael Boyd was the person 
10 who was in the parking lot at some point when Kent Heitholt 
11 was in the parking lot prior to his death? 
12 A. Yes. 
13 Q. And it's my understanding that Michael Boyd is 
14 African-American; is that correct? 
15 A. Yes. 
16 MS. BENSON: Thank you. 
17 Oh, I have -- I'm sorry. I do have one more area, 
18 Your Honor. 
19 Q. You were talking about the travel time driving that 
20 Mr. Erickson allegedly took from By George to Charles' house 
21 and then from Charles' house to Ryan's house; is that 
22 correct? 
23 A. Yes. 
24 Q. Okay. And you had testified both to an afternoon 
25 time and to an early morning time; is that correct? 
912 
 1 A. That's correct. 
2 Q. And the early morning time obviously was shorter, at 
3 about 14 minutes; is that correct? 
4 A. That's correct. 
5 Q. Okay. And in addition, with regard to your early 
6 morning drive, some of the lights in Columbia were flashing 
7 at that time, weren't they? 
8 A. I went through one intersection that had a flashing 
9 light. 
10 Q. So not all of the intersections, especially the 
11 major intersections, and the major thoroughfares would have 
12 red lights at that time, would they? 
13 A. Well, the -- more the major thoroughfares and 
14 intersects, those lights never go flashing. Providence and 
15 Broadway is an example. I mean, it's a major intersection. 
16 That light is always cycling. 
17 Q. You indicated that you were at Broadway and 
18 Clinkscales. Correct? 
19 A. Yes. Uh-huh. 
20 Q. And that that light was flashing yellow. 
21 A. Yes. That's correct. 
22 Q. And Broadway is a major thoroughfare in Columbia. 
23 A. It is. Right. But -- 
24 Q. So basically in Columbia, if you have a major 
25 thoroughfare intersecting with a more minor thoroughfare, the 
913 
 1 light for a person driving on the major thoroughfare would be 
2 flashing yellow at that time. 
3 A. Yeah. It -- 
4 Q. Okay. 
5 A. -- really depends on the intersection. But it was 
6 at Clinkscales and Broadway, that's for sure. 
7 Q. And talking about the intersection of Providence and 
8 Locust, Providence is a very major thoroughfare in Columbia, 
9 obviously. 
10 A. That's correct. 
11 Q. Locust is not. 
12 A. Right. That's correct. 
13 Q. That would be a situation where there might be a 
14 flashing yellow at 1:45 or 2 or 2:30 in the morning, rather 
15 than a red light or green light. 
16 A. I didn't drive through there on the -- 
17 Q. I understand. 
18 A. -- the night. 
19 Q. But that would be the type of scenario that would 
20 occur. 
21 A. Yes, that's true. 
22 MS. BENSON: Nothing further. 
23 THE COURT: Redirect? 
24 - - - 
25 
914 
 1 REDIRECT EXAMINATION 
2 BY MR. CRANE: 
3 Q. You met Mike Boyd? 
4 A. Yes, I did. 
5 Q. Did he show you a vehicle while you met with him? 
6 A. Yes, he did. 
7 Q. In connection with this case. 
8 A. Yes. 
9 Q. And -- 
10 MS. BENSON: Judge, at this point I'd object. This 
11 is beyond the scope of cross-examination. 
12 THE COURT: Overruled. 
13 MR. CRANE: I'm sorry. 
14 THE COURT: Overruled. 
15 Q. Can you describe the vehicle that he showed you? 
16 A. It was a red vehicle. I don't remember the make or 
17 year. 
18 Q. And you photographed it -- 
19 A. I did. 
20 Q. -- is that correct? And I forgot to bring it up 
21 here, didn't I? That photo. 
22 A. Yes, you did. 
23 MR. CRANE: Can I have this marked as State's 
24 Exhibit 99? 
25 Q. Show you what's been marked for identification as 
915 
 1 State's Exhibit 99. Do you recognize that photograph? 
2 A. Yes, I do. 
3 Q. Okay. What is that? 
4 A. It's a photo of Mike Boyd's Plymouth. I think it's 
5 an Acclaim. Plymouth Acclaim. 
6 Q. And why did he show you that car? 
7 MS. BENSON: And Judge, at this point I will object, 
8 with regard to hearsay. 
9 MR. CRANE: Well, let me ask another question, 
10 Judge. I don't want to concede that objection, but I would 
11 rephrase it. 
12 THE COURT: You may. 
13 Q. What did you ask Mr. Boyd reference his vehicle on 
14 the night of November 1, 2001 -- or the early morning hours 
15 of 2001, November 1? 
16 A. I asked him what car he was driving. 
17 Q. And what did Mr. Boyd show you? 
18 MS. BENSON: And Judge, again I'd make a hearsay 
19 objection. 
20 THE COURT: The objection is sustained. 
21 Q. Well, why did you take a photograph of that 
22 particular car in State's Exhibit 99? 
23 MS. BENSON: Judge, I think that's going to call for 
24 hearsay again. 
25 MR. CRANE: This explains his conduct. 
916 
 1 THE COURT: Well, as long as he doesn't testify as 
2 to what someone else told him, he may -- he may testify. 
3 MR. CRANE: I've asked Mr. Hawes what he asked 
4 Mr. Boyd, and then thereafter what Mr. Boyd may have shown 
5 him. 
6 Q. You understand that's the question. I'm not asking 
7 you to testify about what Mr. Boyd said to you. 
8 A. Correct. 
9 Q. After you asked him the question, "What did you 
10 drive to and from work on early morning hours of November 1, 
11 2001," what did Mr. Boyd show you? 
12 A. He pointed out this car. 
13 Q. And what did you then do? 
14 A. I took a photo of it. 
15 Q. Okay. And that's a fair and accurate depiction of 
16 the photograph -- of the car that Mr. Boyd showed you that he 
17 drove that night. 
18 A. Yes. 
19 MR. CRANE: Judge, I'd offer State's Exhibit 99. 
20 THE COURT: Do you have an objection? 
21 MS. BENSON: Judge, I don't have an objection as 
22 long as it's admitted for the purpose of showing the car that 
23 Mr. Boyd pointed out to Mr. Hawes. 
24 THE COURT: Exhibit 99 is admitted. 
25 - - - 
917 
 1 State's Exhibit 99 admitted into evidence. 
2 - - - 
3 Q. What color's that car? 
4 A. Red. 
5 MR. CRANE: I believe that's all the questions I 
6 have. 
7 THE COURT: Recross? 
8 MS. BENSON: Just briefly, Your Honor. 
9 - - - 
10 RECROSS-EXAMINATION 
11 BY MS. BENSON: 
12 Q. Did you show that picture to anyone? The picture of 
13 the car? Have you shown that to -- 
14 A. Well, I showed it to Kevin Crane and -- 
15 Q. Okay. And have you showed it to Chuck Erickson or 
16 been present when someone else showed it to Chuck Erickson? 
17 A. I don't know that -- I don't know that Chuck's ever 
18 seen that picture. 
19 Q. You're not sure? 
20 A. I don't know that -- I didn't show it to him. I 
21 don't know that he has ever seen that. 
22 Q. Have there been meetings with Chuck Erickson that 
23 you weren't present for? 
24 A. I don't think so. I think I was there at all of 
25 them. 
918 
 1 Q. You're not sure? 
2 A. Well, I mean, you know, I -- I might have gone up 
3 to -- gotten up to, you know, get something out of the room. 
4 I mean, left the room for a short period of time. 
5 Q. And have you discussed that picture with him? 
6 A. I don't think I ever talked to Chuck about that. 
7 Q. Did you ever describe Michael Boyd to Chuck? 
8 A. No, I never did. 
9 Q. And just for the jury's sake today, could you 
10 describe Mr. Boyd for the jury? 
11 A. He's an African-American. He's probably about 30 
12 years old. Five ten, 180. 
13 Q. Okay. Fairly large man? Not extremely, 
14 obviously -- 
15 A. Right. 
16 Q. -- but a decent-sized man who was African-American. 
17 A. That's correct. 
18 Q. Okay. 
19 MS. BENSON: Nothing further, Judge. 
20 THE COURT: Redirect? 
21 - - - 
22 FURTHER REDIRECT EXAMINATION 
23 BY MR. CRANE: 
24 Q. Prior to making contact with Mr. Boyd and asking him 
25 what vehicle he was driving the early morning hours there at 
919 
 1 the Tribune November 1, 2001, what information had you 
2 received before that from Charles Erickson? 
3 MS. BENSON: Judge, again I'm going to object, on 
4 the basis of hearsay. 
5 MR. CRANE: Well, let me ask it this way. 
6 Q. Why did you ask Mr. Boyd what vehicle he was driving 
7 on the night of November 1, 2001? 
8 MS. BENSON: Judge, I think that calls for hearsay 
9 again, and I'd make the same objection. 
10 MR. CRANE: This explains the reason why this 
11 witness took this photograph. 
12 THE COURT: It does call for hearsay. Yes? 
13 MR. CRANE: This is to explain the conduct of this 
14 witness. Further, the defense has opened up the issue of 
15 what Chuck said and when he said it. With respect to showing 
16 him this photograph. Those are the questions that were asked 
17 on recross. 
18 MS. BENSON: Judge, I didn't show him the 
19 photograph. And I certainly didn't ask him questions about 
20 what Chuck Erickson said. I asked him what he said to Chuck. 
21 Not what Chuck necessarily said to him. And Chuck was here 
22 earlier, and the state certainly could have inquired at that 
23 time. 
24 THE COURT: I'm going to sustain the objection, 
25 Mr. Crane. 
920 
 1 MR. CRANE: Well, Your Honor, just for the record, I 
2 do want -- that Mr. Erickson did testify that the vehicle 
3 leaving the lot was a red vehicle. 
4 THE COURT: Yes. Is that a response to the 
5 objection? 
6 MR. CRANE: Well -- 
7 Q. When did you make contact with Mr. Boyd and take 
8 this photograph? Do you remember? 
9 A. It was in July of this year. 
10 MR. CRANE: Well, that's -- no further questions. 
11 THE COURT: Any recross? 
12 MS. BENSON: I have nothing further, Judge. 
13 THE COURT: You may step down, Mr. Hawes. 
14 You may call your next witness. 
15 MR. CRANE: State calls Shawna Ornt. 
16 THE COURT: Raise your right hand. 
17 - - - 
18 SHAWNA ORNT, 
19 being first duly sworn by the Court, testified as follows: 
20 THE COURT: If you'd take the witness stand. 
21 - - - 
22 DIRECT EXAMINATION 
23 BY MR. CRANE: 
24 Q. Good afternoon. You doing okay? 
25 A. (Nodding head up and down.) 
921 
 1 Q. You nervous? 
2 A. (Nodding head up and down.) 
3 Q. Okay. Everything -- these are nice people. 
4 Nobody's going to be mean to you. Okay? 
5 A. (Nodding head up and down.) 
6 Q. Can you give us your name, please? 
7 A. Shawna Ornt. 
8 Q. Okay. Now, can you speak up so everybody can hear? 
9 A. Shawna Ornt. 
10 Q. Okay. Shawna, how old are you now? 
11 A. I'm 23. 
12 Q. 23. 
13 A. (Nodding head up and down.) 
14 Q. And so back in October of 2001, that would have 
15 meant you were what? 19? 
16 A. Yes. 
17 Q. Okay. And were you living around here back then? 
18 A. Yes. I was living in Hallsville. 
19 Q. Hallsville, Missouri. That's north of here; is that 
20 right? 
21 A. Yes. 
22 Q. Okay. And how were you employed? 
23 A. I was employed with CS Cleaning and Maintenance. I 
24 subcontracted for them. 
25 Q. Okay. Now, as a -- you were with a cleaning 
922 
 1 company? 
2 A. Yes. 
3 Q. And what was the place that you were assigned to 
4 work at during October of 2001, November 2001? 
5 A. Columbia Daily Tribune. 
6 Q. Okay. And that's just right down the street here; 
7 right? 
8 A. Yes. 
9 Q. Just a couple blocks down the street? 
10 A. Yes. 
11 Q. Okay. What were your regular hours there at the 
12 Tribune? 
13 A. 10, 10:30 to usually 2, 2:30. 
14 Q. Okay. Were there any other janitors that worked 
15 with you, or did you work by yourself? 
16 A. Jerry Trump and Mike Boyd. 
17 Q. So it was a crew of three of you? 
18 A. Yeah. 
19 Q. Okay. What -- was Jerry -- did Jerry have any 
20 additional duties? Was he -- the janitor. Did he have any 
21 supervisory type? 
22 A. He sort of supervised over me when Deb and Lisa 
23 weren't there. 
24 Q. Okay. Let me direct your attention to Halloween of 
25 2001. Do you remember when you got to the Tribune that day? 
923 
 1 A. Yeah. Yes. 
2 Q. I mean, you said you usually got there 10:30. Were 
3 you on time? 
4 A. Yeah. It was about 10, 10:30, in between there. 
5 Q. Okay. Did you know Kent Heitholt? 
6 A. Yes. 
7 Q. And let me show you State's Exhibit 1. Do you 
8 recognize the guy that's in those photographs? 
9 A. Yes. Kent. 
10 Q. Okay. This is Kent here and here? 
11 A. Yes. 
12 Q. Okay. And how -- tell us how you knew him. Was 
13 that anything outside of the Tribune building? 
14 A. No. I just knew him from cleaning the building. 
15 Q. Okay. You'd see him around. He'd be doing his job 
16 and you'd be doing yours. 
17 A. Yes. 
18 Q. Okay. Would you guys speak on occasion or -- 
19 A. Yes. We'd say "hi" and just -- "how are you doing." 
20 Q. Okay. 
21 MS. BENSON: Judge, if I can make an objection at 
22 this point. Not to be crass or anything, but I'd object to 
23 him placing a picture of the victim in a position right in 
24 front of the jury, with their viewing that. I think it's 
25 inflammatory. 
924 
 1 MR. CRANE: A picture -- 
2 MS. BENSON: The picture he just placed right there. 
3 MR. CRANE: Okay. 
4 THE COURT: If you want to remove it, you may, 
5 Mr. Crane. That is a picture of him walking down the street. 
6 It is not -- 
7 MR. CRANE: Yeah. There's no -- 
8 THE COURT: -- another type of picture -- 
9 MS. BENSON: I understand that. 
10 THE COURT: -- that might be more upsetting to 
11 someone. But if you want him to remove it and he's 
12 agreeable, that's fine with me. 
13 MR. CRANE: Proceed, Your Honor? 
14 THE COURT: You may. 
15 Q. Ma'am, on that night, early morning hours of 
16 November 1, 2001, did you see Mr. Heitholt? 
17 A. Yes. 
18 Q. Okay. And again, was that during your normal 
19 rounds -- 
20 A. Yes. 
21 Q. -- cleaning up? 
22 A. Yes. 
23 Q. All right. Nothing unusual that night? 
24 A. No. 
25 Q. Can you give us your best recollection as when you 
925 
 1 last saw Mr. Heitholt, what he was doing, what time it was, 
2 if you remember? 
3 A. It was around 2:00, because I was done cleaning the 
4 upstairs. And that's about the time I go downstairs to 
5 clean. 
6 Q. Okay. 
7 A. And -- 
8 Q. Tell us what you saw of Mr. Heitholt. 
9 A. We both started heading out. And I told him -- 
10 asked him if he was leaving. And so we just said bye. And I 
11 went on with my work. 
12 Q. He went on out the door. 
13 A. Yes. 
14 Q. Now, I want to show you a diagram here we have 
15 marked State's Exhibit 12. Does this look -- you recognize 
16 what's drawn on here? 
17 A. Yes. 
18 Q. Okay. You've got kind of the back dock area of the 
19 Tribune. Can you show us where that is? 
20 A. Right here. 
21 Q. Okay. There's three big garage type doors back 
22 there? 
23 A. Yes. 
24 Q. Okay. And then there's two -- you want to call 
25 those swinging doors? 
926 
 1 A. Yes. 
2 Q. Okay. And they're to the right. At least they're 
3 to my right. Can you point those out for the jury? 
4 A. One right there and there's one right there. 
5 Q. Okay. And then can you show us the parking lot? 
6 A. This thing right here. 
7 Q. Okay. Now, ma'am, after Mr. Heitholt left, he -- do 
8 you remember if he went out any of those doors you just 
9 showed us? 
10 A. He went out the one to the left. Away from the 
11 dock. 
12 Q. Okay. So that would be the one -- the swinging door 
13 closest to Fourth Street over here? 
14 A. Yes. 
15 Q. Okay. He went out onto that parking lot -- across 
16 the alley? 
17 A. Yes. 
18 Q. And then into the parking lot? That's -- I mean, 
19 that was what was out there; right? 
20 A. Yes. 
21 Q. Okay. Now, after he left and went out onto the 
22 parking lot, did you ever see Mr. Heitholt alive again? 
23 A. No. 
24 Q. What happened after Kent left? What -- maybe make 
25 that simpler. What did you do after Kent left? 
927 
 1 A. I finished my cleaning. I was getting ready to head 
2 downstairs, and then I asked Jerry Trump if I could have a 
3 cigarette, and he said, "Go ahead," and he was going to clean 
4 the bathroom. He didn't want to come out with me right then. 
5 Q. He said he wanted to clean the -- 
6 A. Bathroom. Finish the bathroom first. 
7 Q. Okay. And you wanted to go out and smoke a 
8 cigarette. You didn't want to borrow one. 
9 A. No. I had one. 
10 Q. Okay. And where would you normally smoke? 
11 A. Right outside of the dock. 
12 Q. Okay. And what did -- tell us what you did. 
13 A. I just went out the door. And the door just 
14 automatically shuts on you and locks. 
15 Q. Okay. 
16 MR. CRANE: May I have the witness step down? 
17 THE COURT: You may. 
18 You'll need to speak up, though, because this lady 
19 sitting in front of me is taking down what you're saying. 
20 And if your back is to her and you speak softly, she won't be 
21 able to hear. Okay? You may step down, but you'll have to 
22 raise your voice, please. 
23 Q. Can you come on down? 
24 Okay. Look at this diagram. Can you show us which 
25 door you came out of when you went to smoke? 
928 
 1 A. I came out the door right there. 
2 Q. Okay. And you're pointing -- this guy's blocking. 
3 You're pointing to this door closest to the garage door? 
4 A. Yes. 
5 Q. Okay. And then how far out from that door on the 
6 lot did you get? 
7 A. I came all the way out to about here. That's where 
8 the ashtray is. 
9 Q. And were you out on the lot -- well, let me ask you, 
10 other than yourself at that point, were you expecting anybody 
11 else to be out there? 
12 A. No. 
13 Q. Okay. You didn't go out with anybody else. Jerry 
14 stayed inside. Right? 
15 A. Yes. 
16 Q. Okay. What happened when you got out on -- to that 
17 location you've just pointed out there on State's Exhibit 12? 
18 A. I got out there. And when I walked down the stairs 
19 and looked up, I noticed a body duck down. And that's when I 
20 just got nervous and I went back up the stairs, because that 
21 door automatically locks, so I had to crawl over the railing 
22 onto the dock that was open and get in. 
23 Q. Okay. Now, you indicated you saw something? 
24 A. (Nodding head up and down.) 
25 Q. Okay. Where did you see something? 
929 
 1 A. Right about there. 
2 Q. Okay. Now you're indicating a box there? Victim's 
3 car? 
4 A. It would be the rear of the -- the rear driver's 
5 side of his car. 
6 Q. Okay. And what did you see? 
7 A. I seen someone in a shadow duck down. 
8 Q. Okay. And so you were just aware there was somebody 
9 on the driver's side of the car? At that point. 
10 A. Yes. 
11 Q. Okay. And what did you -- tell us again, what did 
12 you do after you saw that? 
13 A. Got scared and went back -- went back up the stairs. 
14 And I climbed up -- there's a railing right there. So I 
15 climbed over the railing to get off the dock. 
16 Q. Okay. 
17 A. And I went into the bathroom where Jerry was and 
18 told him there was something outside. 
19 Q. Okay. You were scared at that point. 
20 A. Yeah. 
21 Q. Okay. And after you got Jerry, what happened? 
22 A. We came -- he came just -- we both walked to the 
23 dock that was open, and we looked out, and he yelled, "Kent, 
24 do you need help?" 
25 Q. Okay. Now wait a minute. Show us which door you 
930 
 1 and Jerry looked out. 
2 A. This one right here. 
3 Q. Okay. Now you're pointing to the -- if Providence 
4 Road is down this way, you're pointing to the Providence side 
5 of that door. 
6 A. Uh-huh. 
7 Q. Okay? And is that -- that's -- you want to call 
8 that just "garage door number 1"? 
9 A. Okay. 
10 Q. Okay. And actually, let me show you what's marked 
11 as State's Exhibit 16 for identification. I don't think this 
12 is -- I don't think 16 is in. 
13 THE COURT: 16 has not been admitted into evidence. 
14 MR. CRANE: Okay. 
15 Q. Is that -- is that a fair and accurate depiction of 
16 the doors -- and I mean, that down there may be different -- 
17 the doors, as you recall them, on the night of this homicide? 
18 A. Yes. 
19 MR. CRANE: Judge, I'd offer State's Exhibit 16. 
20 MS. BENSON: No objection. 
21 THE COURT: State's Exhibit 16 is admitted. 
22 - - - 
23 State's Exhibit 16 admitted into evidence. 
24 - - - 
25 Q. Shawna, show us -- we can move this around a little 
931 
 1 bit. Which door, first of all, did you come out of? 
2 A. I came out this door right here. 
3 Q. And you went? 
4 A. Right about where the ash -- right where the ashtray 
5 is. 
6 Q. Okay. Past this wall right here? 
7 A. It's right at the end of the wall. It's not past it 
8 exactly. 
9 Q. Okay. And then you saw somebody duck behind the 
10 car. 
11 A. Yes. 
12 Q. And you went back through this door? 
13 A. Yes. I had to climb up, because it's too high for 
14 me to get up, so I had climb up it and go over the railing to 
15 get to that door. 
16 Q. Okay. And so then you got Jerry. 
17 A. Yes. 
18 Q. And then where were you and Jerry standing when you 
19 looked back out? 
20 A. Sort of -- like we just kind of walked back. Walked 
21 and kind of stood right there. 
22 Q. On this Providence end of that door. 
23 A. Yes. 
24 Q. Garage door number 1 we'll call it. Okay? And -- 
25 now what was -- what did Jerry start to do at that point? 
932 
 1 A. He just kind of looked out. And then when he -- he 
2 just said, "Kent, do you need help?" I guess he thought Kent 
3 had a flat tire or something and needed help. And then 
4 that's when -- that's when that -- somebody stood up. And 
5 they stood up, and then one walked around the back side of 
6 the car and looked at me and said that "Somebody needs help." 
7 And then that's when we ran inside and just slammed the door 
8 shut. 
9 Q. Okay. How many persons did you see out there on the 
10 other side of the car or to the rear of the vehicle? 
11 A. I seen one at the rear of the vehicle. 
12 Q. How many total people did you see out there? 
13 A. Two. 
14 Q. Okay. And one was towards the rear of the vehicle 
15 by the time you got back out -- or were back at the dock 
16 looking out? 
17 A. Yes. 
18 Q. And the other one was located where by that time? 
19 You see what I'm asking you. I'm asking you now the second 
20 time you looked out. 
21 A. Yes. 
22 Q. Okay. 
23 A. The second time, I seen two of them stand up. And 
24 one was at the front driver's side -- or passenger side, and 
25 the other one was at the rear driver's side. 
933 
 1 Q. Okay. And prior to that, you had only seen somebody 
2 at the driver's side. 
3 A. Yes. 
4 Q. Okay. Now, the -- one of the individuals yelled 
5 back. 
6 A. Yes. 
7 Q. And what do you recall that person saying? 
8 A. He looked at me and he said, "Somebody's hurt. Get 
9 help." Along those lines. 
10 Q. Okay. But that's still -- you said that still 
11 scared you? 
12 A. Yeah. 
13 Q. Okay. Can you tell us what you remember about these 
14 two individuals. Their description. 
15 A. I remember they were young white males. The one 
16 that I really seen really good had like dirty blond hair. He 
17 was tall. He was skinny. He had a light gray shirt on. He 
18 had jeans, pants, whatever. As far as I can remember right 
19 now. 
20 Q. Okay. What about the other one? 
21 A. I didn't really see much of him. I seen that he was 
22 white and young. 
23 Q. And you used the word "he." I mean, you could 
24 tell -- 
25 A. Yeah. It was a male. 
934 
 1 Q. Okay. 
2 A. He was a male. 
3 Q. The lighting out there on the parking lot, can you 
4 tell us where some of the light sources -- well, let me -- 
5 here. Let me show you what's in evidence as State's Exhibit 
6 13. Can you get over here and look at that? Okay. 
7 Let's see. First of all, if you look over here in 
8 13C, what's this right here? 
9 A. It's a light. 
10 Q. Okay. And so to put that in perspective with the 
11 diagram, that light would be over the -- 
12 A. Right there. 
13 Q. Okay. All right. And then there's a streetlight up 
14 here in 13D. 
15 A. Yes. 
16 Q. And then here's another photograph of the front -- 
17 well, the front of the dock area? 
18 A. Yes. 
19 Q. With that same light we see in 13C? 
20 A. (Nodding head up and down.) 
21 Q. Is that correct? 
22 A. Yes. 
23 THE COURT: Excuse me. You need to answer verbally 
24 instead of just shaking your head, please. 
25 Q. Underneath the -- there's kind of a roof area over 
935 
 1 the garage where you could pull in there and be out of the 
2 rain? 
3 A. Yes. 
4 Q. Is there lighting up underneath there as well? 
5 A. I don't know. 
6 Q. Okay. What about 13E? Right by that van. 
7 A. Yes. There's lights. 
8 Q. Light pole there? 
9 A. Yes. 
10 Q. Okay. What did you do -- well, strike that. Let me 
11 ask you this. After you saw these two young white males at 
12 the victim's vehicle, and this is the second time you've seen 
13 them, and the guy yells at you, "Somebody's hurt, go get 
14 help," or words to that effect, what did you do? 
15 A. I went and called 911. 
16 Q. Okay. And what happened after that? 
17 A. I tried talking to them, but Jerry had to take over 
18 because I was too hysterical. 
19 Q. Jerry did? 
20 A. Yeah. 
21 Q. You were too uptight about the whole thing? 
22 A. (Nodding head up and down.) 
23 Q. Let me ask you this. Do you ever see, after that 
24 last time when Kent left the building to go out on the 
25 parking lot, what could you see of him when you looked out 
936 
 1 there towards his vehicle? 
2 A. I couldn't see nothing. 
3 Q. You couldn't see him. 
4 A. (Shaking head from side to side.) 
5 Q. On either occasion. 
6 A. No. 
7 Q. Okay. And I should ask you too, when you last saw 
8 these two young white males, what were they doing? Where 
9 were they going? What were they doing? 
10 A. They -- can I use this? 
11 Q. Yeah. Uh-huh. 
12 A. They were -- they -- 
13 Q. You're looking at -- just for the record, you're 
14 looking there at State's Exhibit 12. 
15 A. They were -- they were running up this alley. One 
16 came from this way, and then the other one came from here, 
17 and ran up the alleyway. 
18 Q. One went around the front of the car? 
19 A. Around front of the car and one went around the rear 
20 of the car. 
21 Q. Okay. And up what alley? 
22 A. Up this alley towards Fourth Street. 
23 Q. And then where? Could you see? 
24 A. I couldn't see. I was inside. 
25 Q. Okay. So when you last had any visual of them, 
937 
 1 they're down in this area? 
2 A. Yes. 
3 Q. Okay. I think you can go ahead and have a seat. 
4 Thank you. 
5 After you called 911, who -- well, let me ask you, 
6 after you called 911, do you remember anybody going out on 
7 the parking lot after that? I'm talking about in the 
8 building. I'm not talking about the police yet. I'm talking 
9 about out of the building. 
10 A. I remember all of the -- the guys from where he 
11 worked in the sports editor place all went out there. 
12 Q. Okay. And did they go out that -- those -- the dock 
13 area or they went out a swinging door or jumped off the dock, 
14 however they got out there? 
15 A. I believe they went out the same way Kent went out. 
16 The first -- 
17 Q. Okay. And they ran out on the lot. Did you go out 
18 on the lot after you were calling 911? 
19 A. No. 
20 Q. Okay. Did -- you didn't go over and look at the -- 
21 at -- see Kent? 
22 A. No. 
23 Q. Okay. Now, after -- you called 911. Gave the phone 
24 to Jerry? 
25 A. (Nodding head up and down.) 
938 
 1 Q. Eventually then who showed up? That wasn't from the 
2 Tribune. Who showed up? 
3 A. The cops. 
4 Q. Okay. And a number of police officers arrived. 
5 A. Yes. 
6 Q. And they talked to you. 
7 A. Yes, they talked to me. 
8 Q. Okay. On -- do you remember specifically talking to 
9 a detective down at the Columbia Police Department about a -- 
10 your -- what you remembered about what these guys looked 
11 like? 
12 A. Yes. 
13 Q. Okay. And what did -- what -- well, let me just try 
14 it this way. Let me show you State's Exhibit 26 for 
15 identification and ask if you recognize that. 
16 A. Yes. 
17 Q. Okay. First of all, what is that? 
18 A. It's a composite I did. 
19 Q. A composite? 
20 A. (Nodding head up and down.) 
21 Q. You did this with a detective at the Columbia Police 
22 Department? 
23 A. Yes. 
24 Q. And this was not too long after the events that 
25 you've just described; correct? 
939 
 1 A. It was the next day. 
2 Q. Okay. And that looks like what the detective and 
3 you came up with that night? 
4 A. The best I could, yes. 
5 Q. This is it; right? 
6 A. Yes. 
7 MR. CRANE: Judge, I'd offer State's Exhibit 26. 
8 MS. BENSON: No objection, Your Honor. 
9 THE COURT: State's Exhibit 26 is admitted. 
10 - - - 
11 State's Exhibit 26 admitted into evidence. 
12 - - - 
13 Q. Okay. Now, can you tell us how this composite was 
14 done. How did you guys -- how did you and the detective go 
15 about doing this? 
16 A. We did it on a computer. I had to flip through 
17 pictures and show him, like, the eyes looked like this. 
18 Q. So they got a bunch of options of like eyes and ears 
19 and what have you? 
20 A. Yes. 
21 Q. Okay. And then you select things from that. And 
22 then how's he put it all together? 
23 A. He did it on a computer somehow. 
24 Q. Okay. All right. And this is what was the product 
25 of that. 
940 
 1 A. Yes. 
2 Q. Okay. Now, later, a lot later, actually in 2003, 
3 did you go back down to the police department? 
4 A. Yes. 
5 Q. Okay. And I should ask you too, had you had an 
6 opportunity to look through mug shots of people that the 
7 police showed you? Photographs of people? 
8 A. Yes. 
9 Q. Did you pick anybody out of those photographs as the 
10 people that you'd seen at Kent's car that night? 
11 A. No. 
12 Q. Okay. You looked at a lot of photographs. It 
13 wasn't them. 
14 A. No. 
15 Q. Okay. Let me show you what's marked as State's 
16 Exhibit 27 for identification. Do you recognize this? 
17 A. Yes. 
18 Q. Okay. What's this? 
19 A. That is the composite I did in 2003. 
20 Q. Okay. I believe that was March of 2003? 
21 A. Yes. 
22 Q. Okay. And again, for the record, that's the next 
23 day, November 2001; right? 
24 A. Yes. 
25 Q. Okay. 
941 
 1 MR. CRANE: Your Honor, I -- 
2 Q. Now this is with a different detective? 
3 A. Yes. 
4 Q. Okay. 
5 MR. CRANE: Your Honor, I'm going to offer State's 
6 Exhibit 27. 
7 MS. BENSON: No objection. 
8 THE COURT: No -- did you say no objection? 
9 MS. BENSON: Correct. 
10 THE COURT: State's Exhibit 27 is admitted. 
11 - - - 
12 State's Exhibit 27 admitted into evidence. 
13 - - - 
14 Q. Now, Shawna, how come you went and did another 
15 composite later? 
16 A. Because it was an actual artist that drew it out, 
17 where I could explain it better. Or he could make it look 
18 more like the person I seen. 
19 Q. Okay. And both of these are one of the two guys you 
20 saw? 
21 A. Yes. 
22 Q. Okay. You saw two different individuals that night? 
23 A. Yes. 
24 Q. And both young white males? 
25 A. Yes. 
942 
 1 Q. Which one -- you said one was at the back of the car 
2 and one was towards the front of the car? Now I'm talking 
3 about the second time you came out. 
4 A. Yes. 
5 Q. The first time you came out, they're both on the 
6 driver's side. But the second time you came out -- do you -- 
7 can you tell us which of these two individuals the composite 
8 is of? 
9 A. I can't say for sure. It was four years ago. 
10 Q. Right. Well, is -- can you tell us whether it was 
11 the one that yelled back? Or was it the other one you saw? 
12 Or do you remember? 
13 A. It was the one that looked at me and talked to me. 
14 Q. Okay. Now, would that go for State's Exhibit 27? 
15 A. Yes. 
16 Q. And that was in 2003. 
17 A. Yes. 
18 Q. When you did that. And 2001 when you did those two. 
19 A. Yes. 
20 Q. You hadn't -- you'd never met Ryan Ferguson or Chuck 
21 Erickson. 
22 A. No. 
23 Q. After you did the first composite, how did you feel 
24 about it? 
25 A. Not as satisfied as I wanted to be. 
943 
 1 Q. After you did the second composite, how did you feel 
2 about that one? 
3 A. Better than the first one. 
4 Q. You thought that was more accurate as to what the 
5 individual looked like? 
6 A. Yes. 
7 Q. Okay. 
8 MR. CRANE: I -- your witness. I don't have any 
9 other questions. 
10 THE COURT: You may inquire. 
11 MS. BENSON: Thank you, Your Honor. 
12 - - - 
13 CROSS-EXAMINATION 
14 BY MS. BENSON: 
15 Q. You indicated that you last saw Mr. Heitholt right 
16 around 2:00 in the morning; is that correct? 
17 A. Yes. 
18 Q. And that was when he was leaving the building? 
19 A. Yes. 
20 Q. All right. And did you see anyone else leave the 
21 building right around that time, just before? 
22 A. No. 
23 Q. You don't recall seeing anyone leave? 
24 A. No. 
25 Q. Okay. You indicated it was about 10 to 15 minutes 
944 
 1 after he left that you took your smoke break; is that 
2 correct? 
3 A. Yes. 
4 Q. So that puts you back out onto the parking lot 
5 somewhere around 2:15 or so; is that correct? 
6 A. Yes. 
7 Q. And you're not entirely sure about the 2 a.m. It 
8 could have been a little later than that? 
9 A. Yeah. 
10 Q. Okay. Okay. Let me refer you to State's Exhibit 
11 12. The first time that you went out that night, you went 
12 out this door here, which is the first swinging door. Or I 
13 guess if you want to take it on a line from east to west, it 
14 would be the second swinging door; is that correct? 
15 A. Yes. 
16 Q. Okay. And did you come down the steps? 
17 A. Yes. 
18 Q. And you got to right about the end of this thing 
19 here? 
20 A. Yes. 
21 Q. Now at that time you only saw a shadow. Is that 
22 right? 
23 A. I saw -- I actually saw someone duck down. 
24 Q. Okay. You saw -- so they ducked down very quickly, 
25 and you didn't actually get to see them at that point. 
945 
 1 A. Yes. 
2 Q. If that was all you had seen, you would not be able 
3 to describe them at all. 
4 A. No. 
5 Q. Okay. Okay. So you went back in and you got Jerry, 
6 who had not come out at all yet; is that correct? 
7 A. Yes. 
8 Q. Okay. And when you came back with Jerry, you came 
9 to the first big garage door. 
10 A. Yes. 
11 Q. Is that right? And this is still up on the dock. 
12 Is that right? 
13 A. Yes. 
14 Q. When you came to that area with Jerry, both you and 
15 Jerry stayed up on this dock area. 
16 A. Yes. 
17 Q. Is that right? And it's from there that he yelled 
18 at these people? 
19 A. Yes. 
20 Q. Okay. So Jerry did not go down to the lot. He 
21 stayed up there with you. 
22 A. Yes. 
23 Q. All right. Now, when the person yelled back, that's 
24 when you and Jerry shut the door; is that right? 
25 A. Yes. 
946 
 1 Q. Okay. So Jerry didn't stay outside at that point. 
2 A. No. 
3 Q. He shut the door and stayed inside with you. 
4 A. Yes. 
5 Q. All right. And then you both went to the telephone. 
6 A. I know I went to the telephone. I'm not for sure -- 
7 Q. Okay. Well, he took over the telephone call for 
8 you. 
9 A. Yes. 
10 Q. And that was fairly quickly, wasn't it? 
11 A. Yes. 
12 Q. A matter of seconds? 
13 A. A little bit, yeah. 
14 Q. Okay. Well, I'm not sure how many, but a matter of 
15 seconds rather than minutes. 
16 A. (Nodding head up and down.) 
17 Q. Is that correct? 
18 A. Yes. 
19 Q. Okay. So he was just behind you -- 
20 A. Yes. 
21 Q. -- when you went to make the phone call. So you did 
22 not see Jerry Trump go back outside until perhaps all the 
23 other guys from the sports editor -- or the sports writing 
24 room went outside. 
25 A. Yes. 
947 
 1 Q. Okay. Now with regard to the other people going 
2 outside, how is it that they knew that there was something 
3 wrong outside? 
4 A. I guess -- I was on the phone. I -- 
5 Q. Okay. So you didn't go up and tell them. 
6 A. No. 
7 Q. Okay. Now, when you went out the door, and I'm 
8 talking about the swinging door this time, not the garage 
9 door, you were just coming out to take a smoke break; right? 
10 A. Yes. 
11 Q. So you didn't have a vacuum cleaner or anything like 
12 that -- 
13 A. No. 
14 Q. -- in your hands? You didn't have anything with a 
15 cord nearby you in your hands? 
16 A. No. 
17 Q. Okay. Let's go now to your descriptions. Now 
18 you've indicated that you only got a look -- a good look at 
19 one of those individuals; is that correct? 
20 A. Yes. 
21 Q. And that was the person who spoke to you. He said, 
22 "Somebody needs help," or something to that effect. 
23 A. Yes. 
24 Q. Is that right? 
25 A. Yes. 
948 
 1 Q. Okay. And you've given a description of that person 
2 several times, have you not? 
3 A. Yes. 
4 Q. And in every description that you've given thus far, 
5 up 'til today, you've described the hair as blond; correct? 
6 A. Yes. 
7 Q. Now, today you said the hair was -- I believe you 
8 said dirty blond? Is that correct? 
9 A. Those are the same thing to me. 
10 Q. Okay. Would you say that dirty blond's different 
11 from straight blond? 
12 A. I guess. 
13 Q. Okay. How about: Is dirty blond different from 
14 extremely blond? 
15 A. Yes. 
16 Q. Okay. That's a different thing, isn't it? 
17 A. Yes. 
18 Q. All right. Do you remember talking with Officer 
19 Lloyd Simons of the Columbia Police Department on November 
20 2nd, 2001, the day after the murder? 
21 A. Yes. 
22 Q. Okay. And he asked you for a description once 
23 again. 
24 A. Yes. 
25 Q. This was actually probably the second or third time 
949 
 1 you've given a description to officers; right? 
2 A. Yes. 
3 Q. And in this description, you first describe the 
4 person you saw as being blond; correct? 
5 A. Yes. 
6 Q. And then you indicate that, in fact, his hair was 
7 extremely blond, do you not? 
8 A. I don't remember that. 
9 Q. You don't recall that? 
10 A. No. 
11 MS. BENSON: Your Honor, I would offer to refresh 
12 her recollection with the report. I know what the Court's 
13 ruling has been thus far. 
14 MR. CRANE: I'm going to object to that, Judge. 
15 She -- if they want to call the officer, that's fine. 
16 MS. BENSON: We can do that. I'd still make the 
17 request. 
18 THE COURT: Okay. What you're wanting to refresh 
19 her recollection with is not a statement that -- 
20 MS. BENSON: I understand. 
21 THE COURT: -- she wrote out; is that correct? It's 
22 a police report. 
23 MS. BENSON: It is a police report written by an 
24 officer. 
25 THE COURT: That some other officer wrote, not the 
950 
 1 witness who's on the stand. 
2 MS. BENSON: Uh-huh. 
3 THE COURT: The objection is sustained. 
4 Q. If -- you sat down with Officer Simons, I'm assuming 
5 at the police department, is that correct -- 
6 A. Yes. 
7 Q. -- when you had this interview? 
8 A. Yes. 
9 Q. Okay. And it's about two and a half pages of text, 
10 from what you told him; is that correct? Would you think 
11 that's -- 
12 A. Yes. 
13 Q. -- fair? 
14 A. Yeah. 
15 Q. Okay. And he listened to what you had to say? 
16 A. Yes. 
17 Q. I'm assuming he took notes? 
18 A. Yes. 
19 Q. Okay. So he would have written down what you told 
20 him? 
21 A. Yes. 
22 Q. Okay. And if he wrote down that you said "extremely 
23 blond," would that be reasonable? 
24 A. Yeah, but I don't remember saying it, so. 
25 Q. Okay. All right. The other thing that you have 
951 
 1 mentioned about the hair was a unique style previously; is 
2 that correct? 
3 A. Yes. 
4 Q. I notice that you didn't mention that today. Could 
5 you describe the hairstyle? What was unique about it? 
6 A. It was -- it was kind of -- the bangs were pushed 
7 up. Just -- it's hard to explain. Not all the hair was 
8 spiked. Just the bangs were up. 
9 Q. Okay. So the unusual feature of the hair was that 
10 the bangs were kind of -- were they pushed forward and spiked 
11 up? 
12 A. Yes. They were just like -- 
13 Q. Kind of like curled up or something? 
14 A. No. They were sticking up. 
15 Q. Okay. Just the bangs. 
16 A. Yeah. 
17 Q. Okay. Now, you first gave a description right there 
18 on the scene; is that correct? 
19 A. Yes. 
20 Q. And that was Mitch Baxley from the Columbia Police 
21 Department; is that correct? 
22 A. Yes. 
23 Q. Okay. And at that time you described this unusual 
24 hairstyle? 
25 A. Yes. 
952 
 1 Q. Okay. And at that time you described the hair as 
2 blond -- 
3 A. Yes. 
4 Q. -- is that correct? But you didn't say "dirty 
5 blond" or "medium blond"; you just said "blond" at that time; 
6 correct? 
7 A. Yes. 
8 Q. And then you had another interview with Ben White, 
9 also on November 1st. 
10 A. Yes. 
11 Q. Okay. This was the second one, but on November 1st 
12 of '01; correct? 
13 A. Yes. 
14 Q. Okay. And again at that time you described the hair 
15 being -- the bangs being spiked in front? Correct? 
16 A. Yes. 
17 Q. And you described the hair being blond -- 
18 A. Yes. 
19 Q. -- correct? And you say nothing, once again, about 
20 being medium blond or dirty blond; just blond. Is that 
21 correct? 
22 A. Yes. 
23 Q. And then in this third interview with Lloyd Simons, 
24 you don't recall it, but you've described the hair as 
25 extremely blond. And you described it again as being hair -- 
953 
 1 the bangs sticking up in front. Is that correct? 
2 A. Yes. 
3 Q. Okay. And then finally you did a second composite 
4 sometime later; is that correct? 
5 A. Yes. 
6 Q. And that was also with a Columbia Police Department 
7 officer; is that correct? 
8 A. Yes. 
9 Q. I believe that was Mr. Nichols perhaps? 
10 A. Yes. 
11 Q. Okay. And that was February 24th of 2003. 
12 A. Yes. 
13 Q. All right. And in that, you once again described 
14 the hair as blond; is that correct? 
15 A. Yes. 
16 Q. Okay. And it's only after -- actually after being 
17 deposed in this case that you have added the description of 
18 dirty blond to this case, isn't it? 
19 A. I didn't really add nothing. I just said it. 
20 Q. Okay. 
21 A. It was blond. 
22 Q. Which you've admitted is different -- extremely 
23 different from extremely blond; correct? 
24 A. Well, yeah. 
25 Q. Okay. Now, today I believe you described the person 
954 
 1 that you did see as skinny? Is that what you said? 
2 A. Yes. 
3 Q. Okay. And in the first four descriptions that you 
4 gave, you have described that person rather as muscular, but 
5 not stocky. 
6 A. Yes. 
7 Q. Is that accurate? 
8 A. Yes. 
9 Q. Okay. And you've described previously the person as 
10 being about six feet tall. Is that still accurate? 
11 A. Yes. 
12 Q. Okay. And I believe you described these individuals 
13 as being in their early 20s. 
14 A. Yes. 
15 Q. Is that correct? 
16 A. Yes. 
17 Q. Okay. That's what you observed that night. 
18 A. Yes. 
19 Q. Okay. 
20 A. It happened fast. 
21 Q. All right. Now when you gave your second composite 
22 description, you added some facial details that you had never 
23 added before; is that correct? 
24 A. Yes. 
25 Q. All right. And you indicated that the head was very 
955 
 1 rectangular. Is that right? 
2 A. Yes. 
3 Q. And that's still accurate? 
4 A. Yes. 
5 Q. Okay. You indicated that the head was longer than 
6 an average head. Is that still true? 
7 A. Yes. 
8 Q. Is that still what you recollect? 
9 A. I guess, yeah. 
10 Q. Okay. You indicated that the chin was wider than 
11 the average chin and square. 
12 A. Yes. 
13 Q. And that's true? 
14 A. Yes. 
15 Q. Okay. You indicated that the nose was very narrow 
16 at the base. 
17 A. Yes. 
18 Q. Is that correct? 
19 A. Yes. 
20 Q. And you also indicated that the person had very 
21 small lips. Do you recall that? 
22 A. No. 
23 Q. You indicated they had small -- like fin lips, I 
24 guess I should say. Do you understand what I mean? 
25 A. Yes. 
956 
 1 Q. Okay. You don't recall telling the officer that 
2 when you made your second composite? 
3 A. I couldn't see the exact details of the lips and 
4 stuff, you know. 
5 Q. It was kind of hard to see facial details. 
6 A. Yeah. 
7 Q. Okay. You don't recall if they had facial hair or 
8 not? 
9 A. No. 
10 Q. Okay. Do you recall it being a fairly warm night? 
11 A. It was decent. 
12 Q. You didn't need a coat, did you? 
13 A. No. 
14 Q. Okay. Certainly not a big puffy coat. 
15 A. No. 
16 Q. Now, since that time -- well, actually that night 
17 the officers took you for what we call a show-up, where they 
18 thought they had a suspect in custody and they asked you to 
19 come look at him. Do you remember that? 
20 A. Yes. 
21 Q. Okay. I think Jerry Trump went with you; is that 
22 correct? 
23 A. Yes. 
24 Q. And he didn't see anything at all, it's my 
25 understanding, with regard to the suspect. 
957 
 1 A. No. 
2 Q. Okay. You looked at the suspect that they had; 
3 correct? 
4 A. Yes. 
5 Q. Do you remember that? 
6 A. Yes. 
7 Q. Okay. And it's my understanding you were very 
8 hesitant and unsure about that person being the suspect. 
9 A. No, I knew it wasn't him. 
10 Q. Okay. 
11 A. No. 
12 Q. So if the officer wrote in her report that you were 
13 hesitant and unsure -- 
14 MR. CRANE: Well, now wait a minute, Judge. 
15 Q. -- that would not be correct? 
16 MR. CRANE: I got a motion in limine on this 
17 business right here. 
18 THE COURT: You want to approach the bench then? 
19 MR. CRANE: Yeah. 
20 MS. BENSON: I don't mind withdrawing the question, 
21 however, Judge. 
22 MR. CRANE: Okay. 
23 MS. BENSON: That's okay. 
24 MR. CRANE: She's already testified that -- the last 
25 question along this line was: That guy wasn't one of two 
958 
 1 people she'd seen out by the car. 
2 THE COURT: The question is withdrawn. 
3 MS. BENSON: Thank you. Okay. 
4 Q. Now sometime later you were working at Pizza Hut; is 
5 that correct? 
6 A. Yes. 
7 Q. Okay. 
8 MR. CRANE: Make the same objection, Judge. And I 
9 think I know where she's going with this. Can we approach? 
10 - - - 
11 Counsel approached the bench and the following 
12 proceedings were held: 
13 MS. BENSON: Judge, what I'm going to ask about is 
14 an occasion wherein she was working at Pizza Hut. She had a 
15 co-worker that she thought looked just like the suspect and 
16 called the police and talked to them about that. I think 
17 it's relevant to her certainty or lack thereof as to features 
18 of this person and ability to ID. 
19 MR. CRANE: This person that she talked about, he 
20 was checked out. He was nowhere near there. And he is not 
21 the -- in any way, shape, or form involved in this thing. 
22 And Miss Benson, with all due respect, knows it, and it's 
23 directly contravening the motion in limine, evidence of other 
24 suspects, just like that last question was with the show-up. 
25 MS. BENSON: If I could, Judge. I'm not at all 
959 
 1 trying to suggest that the person -- 
2 THE COURT: Wait a minute. Mr. Crane is not here. 
3 MR. CRANE: I can hear. 
4 MS. BENSON: I'm not suggesting that this person was 
5 the perpetrator. I'm talking about her ability to make an ID 
6 that she thinks she sees this person and is so certain that 
7 it's that person that she calls the police. It goes to the 
8 credibility of her with regard to her description and 
9 identification issues. 
10 MR. CRANE: Well, okay. Can I go ahead and ask her 
11 if she can identify the defendant then? 
12 THE COURT: I assume you can. 
13 MS. BENSON: Well, she can't. She can't unless she 
14 is going to lie today. 
15 MR. CRANE: She hasn't looked over there. I don't 
16 know when she's seen him. 
17 THE COURT: She's never seen him. 
18 MR. CRANE: Not in person. 
19 MS. BENSON: Not in person. 
20 THE COURT: Well, I assume if you want to test her 
21 credibility by having her say other people look like that, I 
22 assume the state would be privileged to show that this person 
23 had nothing to do with it, number one. And number two, she 
24 could be asked to identify the defendant in this courtroom as 
25 well. 
960 
 1 MR. CRANE: I don't want to make any kind of an 
2 agreement one way or the other on that. All I'm suggesting, 
3 Judge, is that the motion in limine is filed for the very 
4 purpose of the state not having to labor to prove the 
5 innocence of people that didn't commit the crime in front of 
6 the jury. 
7 MS. BENSON: That wasn't my purpose in bringing it 
8 up, but, that being said, if there was a motion in limine 
9 prohibiting her from identifying him in court, which has been 
10 sustained, then I won't go into that territory. 
11 MR. CRANE: Okay. Then I won't ask her -- I won't 
12 role the dice on whether she can identify -- so you're not 
13 going to ask about the J.R. crap. 
14 MS. BENSON: No, I won't ask about that. 
15 - - - 
16 The following proceedings were held in open court: 
17 THE COURT: Mr. Crane, are these individuals that 
18 just entered the courtroom witnesses? I don't know who your 
19 witnesses are. They are uniformed police officers. 
20 MR. CRANE: I think they're just -- 
21 THE COURT: Just here. 
22 MR. CRANE: -- regular old police officers. 
23 THE COURT: All right. If they're not to be called 
24 as witnesses. I don't know what all your witnesses look 
25 like. I just want to make sure that isn't a witness for 
961 
 1 either side. 
2 MR. CRANE: No. 
3 You guys aren't subpoenaed, are you? 
4 SPECTATOR: No, we're not. 
5 THE COURT: All right. Go ahead. You may finish 
6 your examination. 
7 MS. BENSON: Thank you, Judge. 
8 Q. I'm going to ask you at this point about the other 
9 person that was there, that you were not able to get a 
10 description -- or a significant description of anyway. Okay? 
11 A. Okay. 
12 Q. You did get a look at that person when they stood 
13 up; is that correct? 
14 A. Yes. 
15 Q. Okay. And it's my understanding that that person 
16 was shorter than the other person? Is that correct? 
17 A. Yes. 
18 Q. It's also my understanding that that person was 
19 fatter than the person that had spoken to you. Is that 
20 correct? 
21 A. He was a little bit bigger, yes. 
22 Q. Okay. Do you recall using the word "fatter" before 
23 in your prior interviews with police? 
24 A. Yeah. I -- 
25 Q. Okay. Did you notice anything else about that 
962 
 1 person at all? 
2 A. I noticed that it was a white male. He was white 
3 and he was young. 
4 Q. Right. Other than being a white male. 
5 A. Not really, no. No. 
6 Q. Okay. You didn't notice anything about hats. 
7 A. No. I -- I paid attention more to the one that was 
8 talking to me. 
9 Q. Okay. And you didn't see a hat on that person 
10 either, did you? 
11 A. No. 
12 Q. Okay. And that person had on a T-shirt; is that 
13 correct? 
14 A. Yes. 
15 Q. Okay. They didn't have a jacket on or a 
16 long-sleeved shirt on, but a T-shirt; correct? 
17 A. Yes. 
18 Q. Okay. And just to make sure that the jury's clear 
19 on that, the two composites that you did, although quite some 
20 time apart, they are of the same suspect -- 
21 A. Yes. 
22 Q. -- correct? The person that spoke to you. 
23 A. Yes. 
24 Q. Okay. You've never done a composite for the other 
25 person. 
963 
 1 A. No. 
2 Q. Okay. 
3 MS. BENSON: One moment, Your Honor. 
4 (Discussion off the record between defense counsel.) 
5 MS. BENSON: Just one more question. Sorry. 
6 Q. The person that you said spoke to you was the person 
7 coming around the back of the car, that walked around the 
8 back toward the alley; is that correct? 
9 A. Yes. 
10 Q. Okay. 
11 MS. BENSON: Nothing further. 
12 THE COURT: Redirect? 
13 MR. CRANE: I don't think I got any more questions 
14 of this witness. 
15 Thank you, ma'am. 
16 THE COURT: May she be finally excused for the 
17 state? 
18 MR. CRANE: Yes. 
19 THE COURT: For the defendant? 
20 MS. BENSON: Yes, Your Honor. 
21 THE COURT: Thank you so much for coming. You're 
22 finally excused. Would ask you not to discuss your testimony 
23 with any other person who is to be called as a witness, but 
24 you're free to go. Thank you. 
25 You may call your next witness. 
964 
 1 MR. CRANE: Jerry Trump. 
2 THE COURT: Would you come forward and raise your 
3 right hand, sir. 
4 - - - 
5 JERRY TRUMP, 
6 being first duly sworn by the Court, testified as follows: 
7 THE COURT: Would you take the witness stand, 
8 please. 
9 You may inquire. 
10 - - - 
11 DIRECT EXAMINATION 
12 BY MR. CRANE: 
13 Q. Give us your name, please, sir. 
14 A. Jerry Trump. 
15 Q. Jerry, how old are you? 
16 A. Fifty-six. 
17 Q. And back in -- where are you living now? 
18 A. I'm living in Kirksville, Missouri. 
19 Q. Okay. Back in October of 2001, how were you 
20 employed? 
21 A. I was employed by the C & S Cleaning Company. 
22 Q. And what was one of their places that you cleaned 
23 during the -- October, November of 2001? 
24 A. The Columbia Daily Tribune. 
25 Q. Okay. Just a couple blocks down this way; right? 
965 
 1 A. Yes, sir. 
2 Q. How long had you been a janitor there by that time? 
3 A. I believe it was about six months. 
4 Q. And what were your regular hours there at the 
5 Tribune? 
6 A. We normally went in around 9 in the evening, 9 to 
7 10, and worked until 2 or 3. 
8 Q. And, you know, you were a janitor. 
9 A. That's correct. 
10 Q. Cleaned up. 
11 A. That's correct. 
12 Q. Did you have any supervisory responsibility? 
13 A. I did. I had advanced to being their lead person 
14 there. And I had two other employees that I managed. 
15 Q. Was one of them Shawna Ornt, who just walked out as 
16 you walked in? 
17 A. Yes. 
18 Q. Okay. I want to direct your attention to October 
19 31st, 2001. About what time did you arrive there at the 
20 Tribune? 
21 A. I believe we got there about 9 that evening. 
22 Q. And is that -- was that normal? 
23 A. Yes. 
24 Q. Okay. What were you driving that night? 
25 A. A 1997 I think Astro Chevy van. 
966 
 1 Q. Where did you park it? 
2 A. About the fifth place down from the rear of the 
3 building. 
4 Q. Well -- 
5 A. In the employee parking lot. 
6 Q. Okay. Which is right out on the other side of the 
7 alley from the dock there. 
8 A. Correct. 
9 Q. Okay. That night and into the early morning hours 
10 of 2001, normal evening? 
11 A. Yes, it was. 
12 Q. Cleaning up, doing your thing? 
13 A. Correct. 
14 Q. Did you know -- have occasion to know Kent Heitholt? 
15 A. I did. 
16 Q. Okay. And can you describe how you knew Kent. 
17 A. Well, Kent worked late in the evenings, because 
18 obviously sports events went late into the day. And he 
19 worked late in the evening. And some of his staff would too. 
20 Q. Okay. 
21 A. And as we cleaned the building, we cleaned his 
22 office. 
23 Q. All right. And so they -- the sports people would 
24 be there, Kent would be there, and you'd be cleaning up 
25 around them, kind of. 
967 
 1 A. Correct. They were always friendly and -- 
2 Q. Show you State's Exhibit 1, 1A and 1B. Do you 
3 recognize that guy? 
4 A. I sure do. Kent Heitholt. 
5 Q. The big guy there? 
6 A. Yes. 
7 Q. Not the little one, but the big one there -- 
8 A. The big one. 
9 Q. -- on the bottom? 
10 A. Yeah. 
11 Q. Okay. Kent Heitholt. 
12 The night of November -- or early morning of 
13 November 1, 2001, do you recall -- or did you have occasion 
14 to be around when Kent left for what -- I guess you thought 
15 was for the evening? 
16 A. Yes. I was at -- near the back doors. We had just 
17 finished mopping the stairwell that the employees usually 
18 use. And he said, "Oh, you just mopped that." And I said, 
19 "Yes." He said, "Well, I'll go out this other door." 
20 Q. Okay. 
21 A. And I held the door for him -- 
22 Q. All right. 
23 A. -- as he went out. 
24 Q. You didn't want him walking through your freshly 
25 mopped floor and he didn't have a problem with it? 
968 
 1 A. Well, he was that kind of a person, that he would 
2 avoid those kinds of things, so that we didn't have double 
3 duty. Kent was very considerate. 
4 Q. After he -- and he went on out to the parking lot? 
5 A. Correct. 
6 Q. And after Kent left the building, what did you do? 
7 Tell us what happened after that. 
8 A. At that point I was cleaning the dock area. Kind of 
9 a floor all by itself. But there is an employee bathroom 
10 there. And I was in that bathroom cleaning. The door was 
11 propped open, as normal, because it's a small room. And 
12 Shawna came to me and asked about me going out to smoke with 
13 her. And I said, "Shawna, I've just been out to smoke, and I 
14 want to finish cleaning this bathroom so we can move 
15 downstairs as soon as possible. And I'll go out with you, 
16 though, in a few minutes." I said, "You can go on out by 
17 yourself. Just stay on the steps." And I said, "I'm real 
18 close here." I was just a few feet from the door. 
19 Q. And what happened then? 
20 A. I mean, she went out -- to my knowledge, at least, 
21 she -- I heard the door open and close. 
22 Q. Okay. And after that, what happened? 
23 A. Okay. I continued to clean. But just a minute or 
24 two later she came back in and said, "Somebody's outside 
25 there, ducking down behind Kent's car." And I said, "Shawna, 
969 
 1 that can't be. Kent's already gone." And I said, "I think 
2 you just want me to go outside and have a cigarette with 
3 you." And I said, "I want to finish this work." And she 
4 insisted that somebody was out there. So I went out of the 
5 bathroom -- 
6 MR. ROGERS: I'm going to object to the narrative at 
7 this point, Your Honor. 
8 THE COURT: I take it you're the one who's going to 
9 be doing the cross-examination of this witness. 
10 MR. ROGERS: Yes, Your Honor. 
11 THE COURT: Okay. The objection to the form of the 
12 answer is sustained. If you will ask specific questions -- 
13 MR. CRANE: Okay. 
14 THE COURT: -- Mr. Crane. 
15 Q. So, what -- after Shawna told you that, what did you 
16 and she do? 
17 A. We went across the hall there, to the garage doors, 
18 and we -- I looked out the garage door window to see if I 
19 could see anybody out there. 
20 Q. Okay. Now let me stop you right there and show 
21 you -- what happened to the doors here. State's Exhibit -- I 
22 got it right here. State's Exhibit 16. A photograph here of 
23 the -- actually that's all five doors: The three dock doors 
24 and the two we'll call it swinging doors? 
25 A. Yes, sir. 
970 
 1 Q. You recognize what's in those? 
2 A. Yes. The bath -- 
3 Q. Now let me ask a question -- 
4 A. Okay. 
5 Q. -- see, and you go on with -- when you first looked 
6 out on the lot, after Shawna came and got you and said 
7 there's -- she's seeing people out at the car -- 
8 A. Uh-huh. 
9 Q. -- what was the first door you looked out of? 
10 A. This door here. Or the windows there. Or the 
11 window. 
12 Q. So that one was shut? 
13 A. Yes. All of them were shut. 
14 Q. And you looked out that window. 
15 A. Correct. 
16 Q. The little square part of the third door to the 
17 left. My left. 
18 A. Correct. 
19 Q. And then what did you do? 
20 A. When I didn't see anybody, I still -- I took her at 
21 her word and I moved down to the first door. 
22 Q. Okay. So that's the door closest to the swinging 
23 door here? So that would be the garage door on my right; is 
24 that correct? 
25 A. Correct. 
971 
 1 Q. Okay. And what happened at that point? 
2 A. That was the door that we typically opened to remove 
3 trash from the building. 
4 Q. Okay. And what happened? 
5 A. And I unlocked it and unlatched it and opened it and 
6 raised it. 
7 Q. And when you were standing there at that door, can 
8 you tell us what your location -- 
9 A. Well, I couldn't see Kent's car from here, where I 
10 had unlocked the door, so I had to move over to this side. 
11 Q. Okay. So you were at the left side of -- we'll call 
12 that door number 1 then. Is that correct? 
13 A. That's correct. 
14 Q. Okay. And the reason why you couldn't see, if you 
15 were on the right side of that door, is because of this wall 
16 here? 
17 A. That's correct. 
18 Q. It divides the two swinging doors? Okay. Now when 
19 you were looking out that open door, is Shawna nearby? 
20 A. Yes. 
21 Q. Okay. And when you looked out there, what do you 
22 recall seeing? 
23 A. I still didn't see anything. I saw Kent's car, or 
24 what I thought was Kent's car, and then -- but logic wanted 
25 to tell me no, that Kent was gone. You know. But again, I 
972 
 1 took Shawna at her word and I sort of remembered that Kent 
2 had parked there usually. 
3 Q. You were familiar with his car and -- 
4 A. Right. 
5 Q. Okay. 
6 A. And so I hollered. I may have called his name, but 
7 I know that I hollered, "Who's out there?" And I did that 
8 twice. And finally the third time I thought, Well, I'll try 
9 a trick that I've done with kids before. I said, "I see you 
10 out there. Who's out there?" And with that, two young men 
11 raised up from behind that car and said, "Someone's hurt out 
12 here, man." One of them said that. 
13 Q. Okay. Yeah, they both didn't say that in unison? 
14 A. No. 
15 Q. Okay. 
16 A. One of them said it. 
17 Q. Okay. Do you know which -- well, let me ask you 
18 this. These two individuals that you saw at the car, do you 
19 recall how they were positioned at Mr. Heitholt's vehicle? 
20 A. One was directly behind the front wheel on the 
21 driver's side, and one was behind the rear wheel on the 
22 driver's side. 
23 Q. Okay. And so one was -- they're both on the 
24 driver's side, and one was to the front of the car and -- 
25 A. Correct. 
973 
 1 Q. -- one was to the back of the car? 
2 A. That's correct. 
3 Q. Okay. And what about the lighting out there on the 
4 parking lot that night? 
5 A. Well, it was lit from the top of the building, 
6 facing Kent's car and facing the parking lot. And as close 
7 as Kent was parked to the building, it was adequate for me to 
8 be able to see. I could pick out my van out there as well, 
9 because there's a light even further down the parking lot. 
10 Q. All right. I was going to -- let me show you what's 
11 State's Exhibit 13 here. And let me direct your attention 
12 here to 13E. 
13 A. Right. 
14 Q. On -- this is -- we've got this photo here. You can 
15 see it in the daylight, but is there a light there? 
16 A. Absolutely. 
17 Q. Okay. What about underneath the -- what do you call 
18 that thing that sticks out over the garage doors? 
19 A. I don't know that we called it anything. 
20 Q. A roof? 
21 A. A roof I guess. 
22 Q. Yeah. Okay. You can drive up under there, though. 
23 A. Right. Yeah. That's right. 
24 Q. What about lighting up under -- 
25 A. There could be. And I think that was on as well. 
974 
 1 Q. What about -- 
2 A. It wasn't very -- 
3 Q. -- 13F? 
4 A. That -- there's a pole light here. 
5 Q. And whose van's that? 
6 A. That's my van. 
7 Q. Okay. And so Kent's car was on this same side of 
8 the lot, on down, and not visible in that photograph? 
9 A. Correct. 
10 Q. Okay. 13D, what do you see in that photograph? 
11 A. That's Kent's car. 
12 Q. Okay. That's where it was the night of the murder? 
13 A. Right. 
14 Q. Okay. These are some other vehicles on the lot? 
15 A. Right. 
16 Q. All right. Well, actually, that's your van in 13A. 
17 A. Yes. 
18 Q. And then another vehicle on the lot. 
19 A. Right. 
20 Q. Okay. What did you do after the two people stood 
21 up? You said two young men thus far stood up, and you heard 
22 one of them holler at you all. 
23 A. Well, I was surprised that anybody was there. And I 
24 immediately closed the garage door. When I heard that 
25 somebody was hurt, I began to suspect that there may have 
975 
 1 been foul play. 
2 MR. ROGERS: I will object to that, Your Honor, as 
3 narrative, not responsive. The question was what he did. 
4 MR. CRANE: Okay. That's fine. We can have that be 
5 stricken. I -- I think we'll all agree there was some foul 
6 play that night, but if you want to have that stricken, 
7 that's fine. 
8 MR. ROGERS: Your Honor, I will object to 
9 Mr. Crane's comments when I make a perfectly normal 
10 objection. 
11 MR. CRANE: Well, I mean, the answer's been given, 
12 is what I'm saying. 
13 THE COURT: Well, if the answer is given that is not 
14 responsive or of a narrative nature, and there's an objection 
15 afterwards, I don't know that the lawyer would have an 
16 opportunity to make the objection before, not anticipating 
17 that. And I'll sustain the objection. 
18 Is there a motion to strike on the -- 
19 MR. ROGERS: No, Your Honor. 
20 THE COURT: -- floor? No? 
21 MR. ROGERS: No. 
22 THE COURT: All right. 
23 Q. Mr. Trump, after you -- so you've seen these two 
24 individuals, and you close the garage door? 
25 A. Correct. 
976 
 1 Q. Okay. Just tell us what happened then. Strike 
2 that. What did you do then? 
3 A. Well, I latched the door first. And then I -- I 
4 said to Shawna, "I think we ought to go call 911." 
5 Q. Okay. 
6 A. But she said, "I want to stay with you." And she -- 
7 and I said, "Well, I'm going to go out and see what's going 
8 on." And I went out the employee door and -- while she held 
9 it. 
10 Q. Okay. Yeah. When you say "employee door" -- 
11 A. This door. 
12 Q. The door closest to the overhead garage doors? 
13 A. Yes. 
14 Q. Okay. And let me ask you, what was Shawna's 
15 emotional state as this situation progressed? 
16 A. Well, Shawna was scared. But -- but Shawna usually 
17 was scared about being outside there at night. You know. 
18 Leery. 
19 Q. Okay. And so what did you do after telling her to 
20 call 911? You said you went out that door closest to the 
21 garage door? 
22 A. I let her hold the door for me, and I went out and I 
23 went down the steps and across the parking lot to the back 
24 side of Kent's car. 
25 Q. Now, as you went across the alley, I'm going to show 
977 
 1 you State's Exhibit 12, that divides the parking lot from the 
2 building -- 
3 A. Correct. 
4 Q. -- what did you see? 
5 A. Well, yeah. As soon as you immediately go down the 
6 steps and away from the building, you're in the -- 
7 Q. Okay. You're coming out this door? 
8 A. Right. 
9 Q. Okay. 
10 A. And I could see two young men walking up the alley 
11 towards Fourth Street. 
12 Q. Could you point out where you saw those individual 
13 for the jury, please? 
14 A. Probably about this point. 
15 Q. Okay. And they're headed which way? 
16 A. East. 
17 Q. Okay. Towards Fourth Street? 
18 A. Towards Fourth Street. 
19 Q. Okay. And at what point did you lose sight of them? 
20 A. I didn't. When I walked around the other side of 
21 Kent's car and found Kent laying face down in a pool of 
22 blood, I assumed that he was probably dead at that point. 
23 And I called -- I hollered to Shawna, "Go call 911 now." 
24 Q. Again? 
25 A. Yes. 
978 
 1 Q. Okay. 
2 A. This time I told her definitely. 
3 Q. Well, wait a minute. Hold it. When did you lose 
4 sight of -- 
5 A. Well -- 
6 Q. -- the two guys? 
7 THE COURT: Excuse me. If you'll wait until the 
8 question is finished. 
9 THE WITNESS: I'm sorry. 
10 THE COURT: The court reporter has to write both the 
11 question and the answer. 
12 THE WITNESS: Apologize. 
13 THE COURT: All right. You can finish your 
14 question. 
15 Q. Let's just stay with that topic for the moment. 
16 A. Okay. 
17 Q. You walked out the door. And where did you last see 
18 these individuals? What were they doing and where did you 
19 last see them? 
20 A. They were merely walking up the alley, towards 
21 Fourth Street. 
22 Q. All right. Okay. After you saw Mr. Heitholt -- 
23 well, let me take you now to what you saw at the victim's 
24 vehicle. You crossed over the alley and went to Kent's car? 
25 A. Yes. 
979 
 1 Q. And what did you see at that location? 
2 A. I saw Kent laying face down, very near his car, in a 
3 pool of blood. It looked like the back of his head had 
4 been -- 
5 Q. At that -- well, go ahead. What did you -- did you 
6 notice anything about injuries he may have sustained to his 
7 head? 
8 A. I assumed he'd been shot, but at that point I, you 
9 know, I didn't know. I'm not an expert on -- 
10 Q. You couldn't tell what had happened. 
11 A. No. I knew something traumatic had happened. 
12 Q. And then, once you saw that, what did you do with 
13 respect to Shawna? 
14 A. I told Shawna, who was holding the door, to 
15 definitely go call 911. 
16 Q. And then what did you do? 
17 A. I turned around and walked back towards the Tribune. 
18 Back to the same location that I had exited. 
19 Q. Okay. 
20 A. But at that point the door had been closed. So I 
21 had to fumble for my keys. 
22 Q. So you had a set of keys. 
23 A. Oh, yes. 
24 Q. Okay. And you got in that same door you had come 
25 out? 
980 
 1 A. Correct. 
2 Q. Okay. And then what happened? 
3 A. Well, I did see the individuals going back over 
4 towards the door. Turning the corner at Fourth Street. 
5 Q. Okay. On your way back to the building -- 
6 A. Correct. 
7 Q. -- where did you see these individuals? 
8 A. They were at the corner of the alley and Fourth 
9 Street. 
10 Q. Okay. Showing you State's Exhibit 12, could you 
11 point that out. 
12 A. Just right here. 
13 Q. Okay. 
14 MR. ROGERS: Excuse me. I couldn't see that. Too 
15 fast for me. 
16 (Mr. Crane indicating.) 
17 Q. Is that right, Jerry? I should have -- 
18 A. Yes. Right at the corner. Uh-huh. 
19 Q. Okay. And then you did what? 
20 A. I went back in the building. 
21 Q. Okay. And that's -- I had that fouled up. Was that 
22 the last time you saw these individuals? 
23 A. Yes. 
24 Q. Okay. And you went on in, back in the building. 
25 A. Correct. 
981 
 1 Q. Now, before we talk about what happened then, can 
2 you tell the jury what you can recall about the description 
3 of these two individuals. Now -- and before you do that, you 
4 indicated that one was towards the rear of the car? 
5 A. Correct. 
6 Q. And one was towards the front of the victim's car, 
7 on the driver's side? 
8 A. Correct. 
9 Q. Okay. And at what point did you get your best look 
10 at them? 
11 A. When they raised up to -- and said, "Someone's hurt 
12 out here, man." 
13 Q. Okay. 
14 A. When one of them said that. 
15 Q. All right. Now, can you give us a description of 
16 the guy at the back? 
17 A. I believe he was the one with dark hair. Looked a 
18 little older to me than the other. They were both -- it was 
19 nondescript, what they were wearing, I would say. I was so 
20 surprised and shocked when anybody stood up from behind there 
21 that, I guess, if anybody, I expected Kent. 
22 Q. And you never saw Kent until you went out there -- 
23 A. No. 
24 Q. -- right? 
25 A. No. 
982 
 1 Q. What about -- what about their race? 
2 A. They were white. 
3 Q. What about their sex? 
4 A. Male. 
5 Q. And can you give an age category? 
6 A. I thought they were between the ages of 19, 20. 
7 Q. Okay. Which of the two individuals did you get the 
8 best look at? 
9 A. Probably the one to the rear. He would have been 
10 most lit. As far as the lighting was concerned. 
11 Q. All right. And what kind of perspective did you 
12 have on them when you saw them headed up the alley and then 
13 all the way up to the corner of Fourth Street? 
14 A. Well, I could tell they were medium build and about 
15 six feet tall. 
16 Q. But that wasn't the best look you got at them? 
17 A. No. 
18 Q. Okay. Let me ask you what you did after you went 
19 inside the building, back inside after you got the keys and 
20 got back -- got your keys and got back inside -- 
21 A. Right. 
22 Q. -- what did you do then? 
23 A. When I got upstairs, Shawna had gotten to the first 
24 phone available and had 911 on the phone. And they were 
25 asking her where we were located. And so she gave me the 
983 
 1 phone to finish the conversation. And I explained to them we 
2 were in the Columbia Tribune building on Fourth Street. That 
3 the incident had occurred -- 
4 Q. Well, hang on a minute. I'm going to -- 
5 A. Okay. 
6 MR. CRANE: Judge, I'm sorry for the delay here. 
7 Hey, do you mind if I use a CD instead of a 
8 cassette? 
9 MR. WEIS: No. 
10 MR. CRANE: Now I've got -- I need to mark this. 
11 What's that number again? 
12 MR. KNIGHT: 28. 
13 MR. CRANE: 28. And we represent that's the same 
14 contents as what we gave you on cassette. 
15 MR. ROGERS: The 911 call? 
16 MR. CRANE: Yeah. 
17 MR. ROGERS: No objection, Your Honor. 
18 THE COURT: You're offering Exhibit 28? 
19 MR. CRANE: Yeah. Once we get it marked. 
20 THE COURT: State's Exhibit 28 is admitted. 
21 - - - 
22 State's Exhibit 28 admitted into evidence. 
23 - - - 
24 MR. CRANE: Judge, I'd ask leave to play this. It 
25 is the 911 tape initially placed by Shawna Ornt. And then 
984 
 1 the next person we hear is Mr. Trump here. 
2 MR. ROGERS: No objection. 
3 THE COURT: You may do that. 
4 (Tape playing.) 
5 Q. Is that you Jerry? 
6 A. Yes. 
7 (Tape playing.) 
8 Q. That concludes that call? 
9 A. (Nodding head up and down.) 
10 (End of tape.) 
11 Q. Jerry, after you got off the phone, what did you do? 
12 A. Well, I continued to try to calm Shawna down a 
13 little bit, and I went back outside. 
14 Q. Who else was out there by the time -- who else had 
15 gone out there at some point? 
16 A. I believe two of Kent's sports writers. Or the 
17 Tribune sports writers. But -- 
18 Q. Okay. On the tape, you indicate something about 
19 Russ is out there? 
20 A. Russ. Probably. I forgot -- 
21 Q. Who was Russ? 
22 A. Russ was one of the writers. 
23 Q. Sports guys? 
24 A. Yes. 
25 Q. Okay. 
985 
 1 A. There were two or three there that night. 
2 Q. That went on out there? 
3 A. Right. 
4 Q. Okay. Now, when you -- you said you went out after 
5 the 911 call then? 
6 A. Correct. 
7 Q. When you went out there, what did you see with 
8 respect to Kent Heitholt's body at that -- 
9 A. They had rolled him over and attempted CPR. 
10 Q. From the original location you saw him, he'd been 
11 rolled over? 
12 A. Correct. 
13 Q. So he was on his back? 
14 A. Yes. 
15 Q. Let me now show you what's marked for identification 
16 as State's Exhibit 14. 
17 This isn't in yet, is it? 14's not in, is it? 
18 MR. KNIGHT: No. 
19 Q. State's Exhibit 14, A, B, and C. And I'm going to 
20 ask you to take a look at what's depicted in those three 
21 photographs. 
22 A. Yes. 
23 Q. Okay. 
24 A. That's Kent's car and Kent himself. 
25 Q. Okay. Are these fair and accurate depictions of 
986 
 1 what you saw when you went back out there, after you'd seen 
2 Kent first? 
3 A. Yes. 
4 Q. Okay. 
5 MR. CRANE: Judge, I'd offer State's Exhibit 14, 14A 
6 B, and C. 
7 MR. ROGERS: No objection. 
8 THE COURT: State's Exhibits 14, 14A, B, and C, are 
9 admitted. 
10 - - - 
11 State's Exhibits 14, 14A, 14B, and 14C, admitted 
12 into evidence. 
13 - - - 
14 Q. Okay. You've already mentioned that the top 
15 photograph -- actually all these photographs show the 
16 victim's vehicle, and then Mr. Heitholt beside his vehicle as 
17 he was after the sports -- his coworkers had rolled him over. 
18 A. Correct. 
19 Q. Okay. And in State's Exhibit 14B we can see the 
20 building? 
21 A. Yes. 
22 Q. Okay. You can show -- you can make out the dock 
23 doors a little bit over here? 
24 A. Right. 
25 Q. There's the far -- far door, next door. 
987 
 1 A. Oh, yeah. Okay. 
2 Q. Is that right? 
3 A. That's correct. 
4 Q. Okay. And then there's this Dumpster enclosure 
5 here; correct? 
6 A. Right. That had belonged to KFC, I think. 
7 Q. All right. Okay. If you look at the top 
8 photograph, can you see that from where you are? 
9 A. Yes. 
10 Q. That would have been somewhat your perspective, 
11 other than you could not see the body -- 
12 A. I could not. 
13 Q. -- when you looked out? 
14 A. He was rolled over the other direction. I couldn't 
15 see him. 
16 Q. Sir, you've got a criminal record, don't you? 
17 A. Yes, I do. 
18 Q. What have you been convicted of? 
19 A. Endangering the welfare of a child. 
20 Q. And that's a felony offense. 
21 A. Yes, it is. 
22 Q. And actually you pled in one case to five different 
23 counts in that; right? 
24 A. That's correct. 
25 Q. And when did you plead guilty to that? 
988 
 1 A. October the 4th, 1999. 
2 Q. 1999. And before -- that was before you got the job 
3 at the Tribune; right? 
4 A. That's correct. 
5 Q. At some point did you serve prison time for that -- 
6 those convictions? 
7 A. Yes, I did. 
8 Q. And when was -- you first went to the penitentiary 
9 for 120 days? 
10 A. That's correct. 
11 Q. And then you got out? 
12 A. Correct. 
13 Q. And then you got sent back. 
14 A. Correct. 
15 Q. And in between there is when you worked at the 
16 Tribune. 
17 A. That's correct. 
18 Q. Where was it that you were convicted of these child 
19 endangerment offenses? 
20 A. In Audrain County. 
21 Q. Not here. 
22 A. No. 
23 Q. Okay. You were sent to prison from when to when the 
24 second time around? 
25 A. My -- I was revocated on December the 17th, 19 -- or 
989 
 1 excuse me, 2001, and was released December 13th, 2004. 
2 Q. On that -- those offenses that you pled guilty to, 
3 what was your sentence? What was the -- 
4 A. Five-year sentence. 
5 Q. Okay. A five-year sentence. 
6 A. Correct. 
7 Q. Okay. Now, just so we got the time line correct 
8 here, you were doing your thing, working at the janitor job. 
9 A. That's right. 
10 Q. And then the murder occurred. 
11 A. Correct. 
12 Q. And then later, totally unrelated case, you got 
13 sent, on the charges you've talked about, to the 
14 penitentiary. 
15 A. Correct. 
16 Q. Now -- 
17 MR. CRANE: This is subject to the defense motion 
18 here. Do you want to approach or -- 
19 MR. ROGERS: It would be a good time for the final 
20 recess of the day, Your Honor. It's about -- 
21 THE COURT: Yes. I think the jury -- it's been a 
22 couple hours since the jury's been sitting. And I -- it 
23 would be a good time to take a recess. 
24 Ladies and gentlemen, the Court again reminds you of 
25 what you were told at the first recess of the Court. Until 
990 
 1 you retire to consider your verdict, you must not discuss 
2 this case among yourselves or with others, or permit anyone 
3 to discuss it in your hearing. You should not form or 
4 express any opinion about the case until it is finally given 
5 to you to decide. Do not read, view, or listen to any 
6 newspaper, radio, or television report of the trial. 
7 Why don't we try to make it as brief -- come back, 
8 say, at 5:15 if we can. That will be enough time, if the 
9 jurors need to do that. 
10 And you may step down, sir. 
11 THE WITNESS: Okay. May I go out to smoke or -- 
12 THE COURT: You may go out to smoke as long as 
13 you're back in five minutes. 
14 THE WITNESS: Oh. 
15 THE COURT: How's that. 
16 - - - 
17 The following proceedings were held out of the presence 
18 of the jury: 
19 THE COURT: Mr. Crane, you brought up the issue of 
20 the motion in limine. 
21 MR. CRANE: The defense motion, yeah. 
22 THE COURT: Are you going to leave the courtroom? 
23 MR. CRANE: I was going to go to the bathroom and 
24 come back, but if you want to do it now, we can. 
25 THE COURT: If you are able to -- 
991 
 1 MR. CRANE: That was another reason why I raised 
2 their motion. 
3 MR. ROGERS: I was about to ask for a recess first. 
4 THE COURT: All right. Do you wish to be heard 
5 again on that motion? Or you wish to refer back to the 
6 motion and arguments that you made? 
7 MR. ROGERS: We would refer back to the motion and 
8 argument, Your Honor, but if they are going to proffer some 
9 sort of in-court identification, I think they need to develop 
10 some evidentiary basis. 
11 THE COURT: All right. I don't know what they're 
12 going to do. Are you -- 
13 MR. CRANE: Well, what I was going to do is -- and, 
14 you know, this the same thing we ran into at the motion 
15 hearing. I was going to ask Mr. Trump -- is he out of the 
16 room? 
17 MR. ROGERS: He went out to smoke. 
18 MR. CRANE: I was going to ask Mr. Trump about 
19 receiving, from his wife, this article, with the photographs. 
20 Ask him about that. Ask him whether or not -- you know, what 
21 his reaction to that was, et cetera. And a lot of this we've 
22 already litigated. And then what we never did -- but see, 
23 that's the thing. He's never been shown that, by anybody in 
24 the police department or my office or anybody in law 
25 enforcement. If he is unable to recognize the individuals in 
992 
 1 those photographs, then it's game over. If he is, then the 
2 next question's going to be the form in which the exhibit 
3 he's looking at comes in. It's the article that he's 
4 described, but it's a newspaper article. So we'd have to 
5 figure out a way to deal with that. 
6 Then the next question would be: Whether or not he 
7 sees one of the two individuals in the courtroom here today. 
8 He's never been asked that. We didn't do that last time 
9 because the defendant was in his jail clothing. 
10 MR. ROGERS: That's my understanding also, Your 
11 Honor. And that's -- I was kind of expecting them to keep 
12 Mr. Trump here, to show him the newspaper article and to see 
13 if that's the one he saw. I don't think that would -- I 
14 mean, quite frankly, I don't think there's any question that 
15 it is. So I don't think that's a problem. 
16 I think it is evidence of the suggestive nature of 
17 the out-of-court identification, but I don't think it's a -- 
18 a concern of further tainting the identification with regard 
19 to the newspaper article. 
20 With regard to the in-court identification, we don't 
21 have a lineup arranged. And the state has filed no motion 
22 for a lineup. 
23 And I think the suggestive nature of the 
24 out-of-court display of the photograph with the headline will 
25 taint any possible in-court identification. 
993 
 1 Having said that, I do agree with Mr. Crane, that 
2 if, in fact, Mr. Trump were to say, "No, that's not the guy," 
3 that might solve our problem. 
4 THE COURT: I don't suppose that Mr. Crane would be 
5 calling him if that's what he was going to say. 
6 MR. CRANE: I don't know what he's -- 
7 THE COURT: That's just an educated guess. 
8 MR. CRANE: No, I don't know what he's going to say. 
9 Nuh-uh. I don't. That's why I wanted to call him at that 
10 last motion hearing. And I haven't -- and he hasn't seen the 
11 article. I wanted to do that too. 
12 THE COURT: All right. Well, let us -- let me just 
13 suggest to you that I am not going to permit you to offer, so 
14 that this jury may look at it, the entire article that we 
15 have tried to go to Lincoln County to avoid anyone having 
16 read that article. 
17 MR. CRANE: Right. 
18 THE COURT: Certainly if the photographs -- 
19 (Mr. Crane showing the newspaper article to Court 
20 and counsel.) 
21 THE COURT: There are very small photographs. 
22 MR. CRANE: Well, what we were doing was: If that 
23 is the article, then showing it to him in a form that it 
24 would have appeared when he got it from his wife. 
25 THE COURT: All right. But I do not -- I want you 
994 
 1 to caution him not in any way to display this to the jury. 
2 MR. CRANE: Understood. Yeah. That's understood. 
3 THE COURT: And I will permit you to ask him about 
4 the circumstances of having received this and -- 
5 MR. CRANE: Yeah, I would -- 
6 THE COURT: -- and whether or not he recognized 
7 someone in that -- in those photographs. 
8 MR. CRANE: I would have to establish that it was 
9 not government action before showing him the photo. 
10 THE COURT: You better. 
11 MR. CRANE: Yeah. 
12 THE COURT: You best do that. Now, whether or not 
13 that is admitted, again, I'm telling you, I don't want that 
14 Tribune article text and the headlines before this jury. 
15 MR. CRANE: I understand. And I didn't -- I thought 
16 that there would be objections if I didn't show it to him in 
17 the form that he allegedly first saw it, is why I did that. 
18 So, after that, the question becomes: The form in which it 
19 may go to the jury. I -- it's understood, Judge. 
20 MR. ROGERS: My only problem with that, Judge -- 
21 well, actually there's a couple of problems. One problem is 
22 that I think the headline, even though it is highly 
23 prejudicial -- because I guess it is highly prejudicial, is, 
24 however, part and parcel of the suggestiveness of the 
25 procedure. So, without the jury knowing what's on the 
995 
 1 headline, they cannot have any chance of assessing the impact 
2 this would have on the reliability of this identification. 
3 THE COURT: Well, if you want it to go to that 
4 jury -- 
5 MR. ROGERS: I don't. I don't want any of it to go 
6 to the jury. 
7 THE COURT: I understand that. But understanding 
8 I'm going to permit Mr. Crane to show that exhibit to this 
9 witness, and ask -- however he's going to get it -- ask him 
10 if he's seen that or -- I don't know how he's going to lead 
11 up to it. If he's going to say he received some information 
12 from his wife -- 
13 MR. ROGERS: My -- am I incorrect here? I thought 
14 we were going to let him look at that outside the presence of 
15 the jury. Am I -- am I on the wrong page? 
16 THE COURT: Well, I don't know that we -- at this 
17 point was -- we're going to do that. 
18 MR. ROGERS: Mr. Crane, were you contemplating 
19 showing him the newspaper article outside the presence of the 
20 jury? 
21 MR. CRANE: No, but I wasn't going to -- I was going 
22 to show it to him in the presence of the jury, without the 
23 jury seeing the newspaper article. 
24 MR. ROGERS: Okay. See, I am on the wrong page. I 
25 would request, before that happens, that we find out: Is 
996 
 1 that, in fact, what he saw? And then that we explore, 
2 outside the presence of the jury, the suggestiveness of the 
3 procedure and whatever governmental action may have been 
4 involved, and we go from there. 
5 MR. CRANE: That's what I tried to do at the motion 
6 in limine. 
7 THE COURT: Okay. 
8 MR. ROGERS: But that was when Mr. Ferguson was 
9 sitting there in jail clothes. 
10 MR. CRANE: And that's when we offered -- that's 
11 when I offered to -- him to leave during that hearing. 
12 MR. ROGERS: And he didn't want to have to pick 
13 between his right to be present at a critical stage -- 
14 MR. CRANE: Okay. 
15 MR. ROGERS: -- and his right not to be displayed in 
16 jail clothes. 
17 MR. CRANE: All right. Well, I'm all ears, Judge. 
18 I really -- I'll do whatever the Court thinks is appropriate. 
19 I was prepared to do it in open court. I -- you know, I 
20 guess, if Mr. Trump can't identify anybody in the photos, and 
21 the jury's out of the room, I guess that's a good -- that's 
22 good for me they're out of the room. You know. 
23 THE COURT: Let us call him before the jury is 
24 returned and ask him the questions that lead up to that. If 
25 he's totally unable to do it, then you'll move on to some 
997 
 1 other issue. 
2 MR. CRANE: All right. And now -- then -- 
3 THE COURT: Assume he can then identify it. 
4 MR. CRANE: Yeah. Yeah, that's fine. I'm game for 
5 that. I would like to have, though, about ten minutes before 
6 we get Mr. Trump in here, so I can go to the rest room, just 
7 get a drink of water real quick, if that would be all right. 
8 Five minutes? 
9 THE COURT: We'll take a brief recess. 
10 MR. ROGERS: Thank you. 
11 (Recess taken.) 
12 - - - 
13 The following proceedings were held out of the presence 
14 of the jury: 
15 MR. CRANE: Judge, may we return the witness? 
16 THE COURT: Yes, please. 
17 - - - 
18 
19 
20 
21 
22 
23 
24 
25 
998 
 1 JERRY TRUMP, 
2 resumed the stand and testified further: 
3 THE COURT: Mr. Trump, you'll remember you're still 
4 under oath. 
5 THE WITNESS: Yes, ma'am. 
6 THE COURT: The prosecutor has a few preliminary 
7 questions to ask you before we bring the jury back into the 
8 courtroom. 
9 THE WITNESS: Okay. 
10 - - - 
11 DIRECT EXAMINATION 
12 BY MR. CRANE: 
13 Q. Mr. Trump, I was asking you -- you testified I 
14 believe earlier that you were sent to the penitentiary and 
15 were there from December of '01 until when? 
16 A. Until December 13th, 2004. 
17 Q. Okay. Sir, after you were released, you were 
18 contacted by my office -- I believe you were contacted by 
19 Bill Hawes? 
20 A. Correct. 
21 Q. Who left. And you were asked to come and visit with 
22 us? 
23 A. Yes. 
24 Q. Okay. And that was the first time we'd ever met; is 
25 that right? 
999 
 1 A. That's correct. 
2 Q. And you came to the office, and Mr. Hawes was in the 
3 room with us? 
4 A. Yes. 
5 Q. And one of the things we were going to do that day 
6 was go down here to the Tribune building, and you were going 
7 to show us where you'd been and all that -- 
8 A. That's correct. 
9 Q. -- when this happened; correct? 
10 A. Correct. 
11 Q. And I think we listened to the 911 tape, and I asked 
12 if you remembered that and et cetera. 
13 A. Right. 
14 Q. And during our conversation about what you'd seen 
15 out there, what did you tell me you'd received while you were 
16 incarcerated? 
17 A. When -- it was printed in the paper that somebody 
18 had confessed to the murder and named another individual. My 
19 wife sent me a copy of that article from the Columbia Daily 
20 Tribune. And I didn't know she was sending that. In opening 
21 my mail, I first turned to the two pictures. And my mouth 
22 dropped. I didn't see the headlines or anything, because I 
23 recognized -- 
24 Q. How did you first turn to the two pictures? I 
25 mean -- 
1000 
 1 A. That's just the way it was folded in the envelope. 
2 Q. All right. And what did -- well, it was obviously 
3 an article about this. 
4 A. Yes. 
5 Q. Those photographs, when you saw those, what was your 
6 reaction? 
7 A. I remembered them as the ones that I had seen behind 
8 Kent's car. 
9 Q. That you've described here earlier when you were -- 
10 the incident you described when the jury was in here. 
11 A. Absolutely. 
12 Q. Okay. Do you remember when you -- the date when you 
13 got the article? 
14 A. Well, I'm assuming, but I think it was March or 
15 April. 
16 Q. You don't remember the exact date? 
17 A. No, I don't. 
18 Q. Okay. 
19 A. It would have been a week or two after the article 
20 first came out in the paper, I assume. 
21 Q. Okay. Was this an article generated, to your -- 
22 well, were these photographs in the article in a Columbia 
23 Daily Tribune? 
24 A. I believe they were. 
25 Q. Okay. Now, since that time, when you got that 
1001 
 1 article from your wife -- who obviously knew you were a 
2 janitor when it all happened; right? 
3 A. Sure. 
4 Q. -- has anybody from law enforcement, and when I say 
5 "law enforcement," Columbia police, highway patrol, sheriff, 
6 prosecutor's office, FBI, CIA, anybody shown you those 
7 photographs? 
8 A. No. 
9 Q. Okay. Now, you did look at various photographs at 
10 the request of the police after this crime occurred; correct? 
11 A. That's correct. 
12 Q. Did you pick out, as the -- as the people you'd seen 
13 out at the car at that night, from any of the photographs the 
14 police had provided you with? 
15 A. No. 
16 MR. CRANE: Judge, I'd ask leave to show the witness 
17 State's Exhibit -- you want to look at it again? State's 
18 Exhibit 30 for identification. 
19 THE COURT: 30 is the front page of the Tribune that 
20 is dated 3-11-04? 
21 MR. CRANE: Correct. 
22 MR. ROGERS: May I make one preliminary inquiry of 
23 the witness before he's shown the exhibit, Your Honor? 
24 THE COURT: Well, I would think that 
25 cross-examination might come after the examination of the 
1002 
 1 state. 
2 MR. ROGERS: This is a -- maybe a voir dire of the 
3 witness kind of question. 
4 THE COURT: Well, you may voir dire the witness for 
5 the purpose of making an objection, but you may not conduct a 
6 complete cross-examination of this witness. 
7 MR. ROGERS: I don't intend to. 
8 - - - 
9 VOIR DIRE EXAMINATION 
10 BY MR. ROGERS: 
11 Q. How many pictures total were on the part that you 
12 first saw? 
13 A. I remember two pictures. 
14 Q. One of each of two different individuals? 
15 A. Correct. 
16 Q. Thank you. 
17 MR. ROGERS: That's my only question. I don't have 
18 an objection, for the purposes of this hearing. 
19 THE COURT: All right. 
20 You may show him the exhibit. 
21 - - - 
22 RESUMED DIRECT EXAMINATION 
23 BY MR. CRANE: 
24 Q. Is this -- 
25 A. That's correct. 
1003 
 1 Q. -- the article? 
2 A. And the part that I first saw was the top two 
3 pictures. The colored pictures. 
4 Q. Oh. You mean -- well, going back to his question, 
5 the fold was between the two photos? 
6 A. Yes. 
7 Q. Well -- is this the article that your wife sent you? 
8 A. Yes, it is. 
9 Q. Okay. Now in that article, there's -- as far as -- 
10 forget the photo of Kent. 
11 A. Uh-huh. 
12 Q. There's two photos, and a caption, and two photos 
13 below that. 
14 A. That's correct. 
15 Q. Did you see all of those photos when you opened -- 
16 well, strike that. When you first opened the article, which 
17 two did you see? 
18 A. The top two. 
19 Q. And then did you also see the bottom two? When you 
20 got it opened. 
21 A. When I opened it up, yes. 
22 Q. And with respect to the top two photographs, what 
23 can you tell us about those photographs as they relate to the 
24 individuals you saw at the victim's vehicle that night? 
25 A. I thought, Wow, these two faces look very familiar. 
1004 
 1 And I immediately went back to the night that we've been 
2 talking about, that Kent was killed. 
3 Q. Now, after you saw these photographs, when was the 
4 first time you told anybody in law enforcement about those? 
5 A. You. 
6 Q. In that meeting on December 21st -- 
7 A. Somewhere, yeah. 
8 Q. -- after you got out -- 
9 A. That's correct. 
10 Q. -- of prison. 
11 A. That's correct. 
12 Q. Okay. And since then, nobody's showed you that. 
13 A. No. 
14 Q. That's the first time you've seen that since prison. 
15 A. That's correct. 
16 Q. What did you do with the article that your wife sent 
17 you? 
18 A. I threw it away after a day or so. 
19 Q. Okay. 
20 A. We just weren't able to keep extra stuff. 
21 Q. Okay. 
22 MR. CRANE: Judge, I'd offer -- well, I guess it 
23 doesn't make any difference now. Do you want me to offer it 
24 for the purposes of this hearing, or just not offer it? 
25 MR. ROGERS: I think for the purposes of this 
1005 
 1 hearing, it might as well be in the record. 
2 MR. CRANE: Okay. Offer it for purposes of this 
3 hearing outside the presence of the jury. 
4 THE COURT: 30 is admitted. I assume with your 
5 consent. 
6 MR. ROGERS: For the purposes of this hearing, 
7 that's correct. 
8 MR. CRANE: Okay. 
9 - - - 
10 State's Exhibit 30 admitted into evidence. 
11 - - - 
12 Q. Now, Mr. Trump, do you see in the courtroom here 
13 today one of the individuals that you saw at Mr. Heitholt's 
14 vehicle on the early morning hours of November 1, 2001? 
15 A. Yes, I do. 
16 Q. Could you point him out for us, please? 
17 A. The defendant. 
18 Q. Could you describe him for us, please? 
19 A. Could I describe him? 
20 Q. Yeah. We got to make a record. 
21 A. I assume that he's -- 
22 Q. What's -- what's he wearing? 
23 A. Oh, he's wearing a blue sweater, I'm sorry, red tie, 
24 looks like a white shirt from here -- 
25 A. Okay. He's seated -- 
1006 
 1 A. -- dark hair. 
2 Q. -- between the young lady and the gentleman with 
3 the -- 
4 A. And the attorney. 
5 Q. Okay. 
6 A. Maybe between two attorneys. I don't know. 
7 MR. CRANE: Judge, I'd ask the record reflect that 
8 Mr. Trump has identified the defendant. 
9 THE COURT: It will reflect that. 
10 Do you have anything further to ask of this 
11 witness -- 
12 MR. CRANE: No. 
13 THE COURT: -- Mr. Crane? 
14 MR. CRANE: I do not, Your Honor. 
15 THE COURT: You may inquire. 
16 MR. ROGERS: Thank you, Your Honor. 
17 - - - 
18 CROSS-EXAMINATION 
19 BY MR. ROGERS: 
20 Q. Mr. Trump, where were you when you were shown 
21 this -- when you received this newspaper in the mail? 
22 A. I didn't hear the first part of your question. 
23 Q. Where were you when you received this newspaper in 
24 the mail? 
25 A. I was in Bonne Terre Correctional Center. 
1007 
 1 Q. And that's a facility of the Missouri department of 
2 corrections; correct? 
3 A. That's correct. 
4 Q. And they have regulations concerning the mail, don't 
5 they? 
6 A. Yes. 
7 Q. And mail which is not legal mail, from your 
8 attorney, is subject to being opened and monitored before 
9 being given to the inmate; is that correct? 
10 A. That's correct. 
11 Q. And so when you got this newspaper in the mail, some 
12 correction officer had already opened it and seen what was in 
13 it. 
14 A. Yes. 
15 Q. And people at Bonne Terre, the staff at Bonne Terre, 
16 were aware of your situation as a witness in this case, 
17 weren't they? 
18 A. I don't think so. 
19 Q. Well, they played for you a videotape prepared for 
20 you and the other inmates, a videotape prepared by the 
21 Columbia Police Department concerning the murder of 
22 Mr. Heitholt, didn't they? 
23 A. It was not played for me. It was played for the 
24 general population. 
25 Q. Right. But "you" in the plural sense. Our language 
1008 
 1 is inadequate. Second person plural and second person 
2 singular are the same word, "you." 
3 A. Okay. 
4 Q. Right? Maybe I should say "y'all." 
5 A. Okay. 
6 Q. So they did play for y'all the videotape; correct? 
7 A. That's correct. 
8 Q. And that videotape had on it your voice from the 911 
9 call. 
10 A. That's correct. 
11 Q. And that videotape had on it your name. 
12 A. That's correct. 
13 Q. And so therefore, the correctional staff knew that 
14 you were a witness in the Heitholt murder. 
15 A. No. I'll take that back, sir. I do not recall that 
16 the videotape that we saw specified my name. And I don't 
17 believe that it did. And the reason I say that is that I did 
18 not see it when it first came on the prison channel. That's 
19 -- I was at Pacific then. And two or three inmates that I 
20 knew pretty well came up to me and said, "I think you're on 
21 this video that they're showing. Your voice." And I said, 
22 "I don't know what you're talking about." And then I later 
23 listened to it. Or watched it. And I believe that the part 
24 that stated my name was omitted from that, that was played to 
25 the corrections. 
1009 
 1 Q. When you heard it later. 
2 A. Yes. When I heard it at prison. I don't believe it 
3 specified me, or I think that -- I would have found all kinds 
4 of problems from other inmates. Or not all maybe, you know, 
5 but it would not have been a good scene for an inmate to have 
6 been identified that way. So I don't believe that anybody at 
7 that prison facility, any of them, knew that I was involved 
8 with this situation. 
9 Q. But what you're trying to tell me is that somebody 
10 in the Missouri division of adult institutions of the 
11 department of corrections had realized that you were an 
12 inmate and redacted your name from the videotape; is that 
13 correct? 
14 A. I don't know who took it out. I have no clue. 
15 Q. But you're saying it was taken out because you were 
16 an inmate. 
17 A. No. Maybe it was taken out just to not identify me 
18 to the general public. 
19 Q. Okay. 
20 A. I would assume that that tape maybe was played on 
21 television stations or wherever. I didn't think it was 
22 played just to inmates. 
23 Q. But it was played once especially for inmates; 
24 correct? 
25 A. At least once. 
1010 
 1 Q. At least once. And at that time, or at least the 
2 time it was played for you as an inmate, was when your name 
3 was not in it. 
4 A. Yes. That's true. 
5 Q. And then the newspaper which had been mailed to you 
6 by your wife -- does she live in Columbia, by the way? 
7 A. She lived in Mexico, Missouri, at the time. 
8 Q. Okay. And this newspaper mailed to you had been 
9 reviewed by the corrections staff, put back in the envelope, 
10 and the envelope was given to you; correct? 
11 A. I -- yes. I don't know how much they reviewed it. 
12 You know, as long as there was -- it was not a big -- it was 
13 not the whole paper, it was a portion of a page, then I could 
14 receive that. 
15 Q. All right. And you did. 
16 A. Yes. 
17 Q. And you're saying you saw the top two photographs. 
18 A. That's correct. First. 
19 Q. And did you see the headline? 
20 A. No, I did not see the headline until after I 
21 unfolded it and opened it -- and opened the entire thing. 
22 Q. And did you see the giant photo of Mr. Heitholt? 
23 A. I did when I opened it, yes. 
24 Q. You recognized him. 
25 A. Yes, I did, immediately. 
1011 
 1 Q. Now, the person that you have identified in the 
2 courtroom today, is that person who you say was standing at 
3 the rear of the driver's side of Heitholt's vehicle or the 
4 person that you saw standing at the front? 
5 A. As I recall, he was standing at the front of the 
6 vehicle. 
7 Q. Front of the vehicle. And is that the person who 
8 you describe as having dark hair or the person you describe 
9 as having blond hair? 
10 A. Dark hair. 
11 Q. And so the other individual is the one that you 
12 describe as having blond hair. 
13 A. Lighter, yes. 
14 Q. Lighter. 
15 A. Uh-huh. 
16 MR. ROGERS: I believe those are all the questions I 
17 have for this witness, Your Honor. 
18 THE COURT: All right. 
19 MR. CRANE: Your Honor -- 
20 THE COURT: Any redirect on this witness? 
21 MR. CRANE: I did want to ask a couple questions. 
22 - - - 
23 REDIRECT EXAMINATION 
24 BY MR. CRANE: 
25 Q. Mr. Trump, prior to today your deposition was taken 
1012 
 1 by the defense; is that correct? 
2 A. That's correct. 
3 Q. And at that deposition you met Mr. Rogers? 
4 A. Yes, I did. 
5 Q. And you also met -- I think Mr. Weis was present? 
6 A. Yes. 
7 Q. And was Ms. Benson back here present during your 
8 deposition? 
9 A. Not that I recall. 
10 Q. Okay. But for the record, the two males at the 
11 counsel table here, other than myself, Mr. Knight, and the 
12 defendant, are Mr. Rogers, who you previously met, and 
13 Mr. Weis, who you previously met. 
14 A. That's correct. 
15 MR. CRANE: That's all the questions I have. 
16 THE COURT: Anything further? 
17 MR. ROGERS: No, Your Honor. 
18 THE COURT: All right. You may step down. If you 
19 would please step outside the courtroom briefly. 
20 THE WITNESS: Am I dismissed? 
21 THE COURT: Oh, no. 
22 THE WITNESS: Okay. 
23 THE COURT: Not yet. You're not dismissed. I'll 
24 let you know when you are. 
25 (Witness excused from courtroom.) 
1013 
 1 MR. CRANE: Your Honor? 
2 THE COURT: Yes. 
3 MR. CRANE: I'd like to take up another matter 
4 before Mr. Trump returns. 
5 The defense, based on current Missouri case law, 
6 would be allowed to impeach Mr. Trump with respect to his 
7 prior convictions. However, such impeachment would be 
8 limited to where the conviction occurred, what the name of 
9 the charge that he pled guilty or was convicted of is, the 
10 length of the sentence, and the date on which that 
11 conviction -- well -- or -- the date he pled guilty. The 
12 details, the specific elements of the offense are not 
13 admissible impeachment. 
14 That's my motion -- oral motion in limine. 
15 THE COURT: Well, let's get to the issue first. And 
16 I will take that up, Mr. Crane. 
17 Do you wish to be heard again on your motion in 
18 limine? 
19 MR. ROGERS: Yes, Your Honor. 
20 I think, if you look at the testimony, there is 
21 sufficient state action to at least subject this to this 
22 Court's analysis of suggestiveness. They knew or should have 
23 known that he was a witness in this case. I think you can 
24 infer from his testimony that they redacted his name from the 
25 one that was shown to people in the department of corrections 
1014 
 1 that they knew it. That they opened and reviewed the 
2 newspaper article, and therefore should have been on notice 
3 as to the suggestive nature of the items. 
4 With regard to the merits of the suggestiveness, 
5 Your Honor, what you consider is not only the suggestiveness 
6 of the display, which is overwhelming, overwhelmingly 
7 suggestive, but you also consider the length of time between 
8 the event and the identification. In this case, two and a 
9 half years. You consider the opportunity for the person to 
10 see and observe the person he identifies, which is certainly 
11 limited. You consider the description of the person, in 
12 terms of determining the reliability of the identification. 
13 And in this particular case, you consider it, especially in 
14 the fact that Mr. Trump is claiming that Mr. Ferguson is the 
15 person with dark hair, and yet we have a photograph of 
16 Charles Erickson taken that same night, where the hair was 
17 much darker than Mr. Ferguson's. 
18 And ultimately, once the suggestiveness or a degree 
19 of suggestiveness is shown, then the Court has to decide 
20 whether the suggestiveness, when balanced against the indicia 
21 of reliability, is sufficient to say that this gives rise to 
22 the substantial likelihood of an irreparable 
23 misidentification. And I think that's been clearly shown 
24 here. In fact, we've seen the irreparable misidentification 
25 of Mr. Ferguson here in court. 
1015 
 1 So I think that, under all of the tests in the case 
2 law, that this both out-of-court and in-court identification 
3 should be suppressed. 
4 And furthermore, Your Honor, that would merely put 
5 the state in the position they were in before Mr. Trump came 
6 into their office in December of 2004 and said, "Guess what I 
7 saw while in prison." 
8 MR. CRANE: Your Honor, I would, as I did in the 
9 hearing on defense motion in limine, I would cite the Court 
10 to State versus Lawrence, 700 S.W.2d 111. In that case, a 
11 witness identification was from a newspaper photograph. The 
12 Court held that when the source of the alleged taint, which 
13 is being argued at this point by Mr. Rogers as to the 
14 contents of the article, is not governmental, the balancing 
15 test is not applicable. And as the Court knows, the 
16 balancing test is between the likelihood of irreparable 
17 misidentification versus the necessity for government to use 
18 identification procedures alleged as tainted. 
19 Here there was no governmental action whatsoever. 
20 There has not been any governmental action from the 
21 standpoint of the prison guards letting his mail go through 
22 to him. There is no connection between the photographs that 
23 were generated by the Columbia Daily Tribune on March 11th, 
24 2004, and the prison videos -- or the video that was shown in 
25 the penitentiary that we've got right here, because they 
1016 
 1 hadn't been caught. 
2 So there is no governmental connection. That was 
3 his wife sending the article. He opened it up and made his 
4 identification. He should be allowed to testify to it. If 
5 he can identify the defendant, he should be allowed to do 
6 that too, pursuant to Missouri law. 
7 MR. ROGERS: Your Honor, I would just point out one 
8 more item of governmental action. Those are police 
9 photographs that were provided to the Columbia Daily Tribune. 
10 That's certainly governmental action. 
11 THE COURT: The motion in limine to suppress the 
12 in-court identification by this witness is overruled. 
13 I will move to the issue of the motion in limine by 
14 the state as to impeaching by prior convictions. Are you 
15 intending to go into the substance of any conviction that 
16 this defendant might have -- or this witness might have? 
17 MR. ROGERS: I do not disagree with Mr. Crane's 
18 general statement about the scope of impeachment by prior 
19 conviction. However, I believe there are things which have 
20 been said on direct examination which have opened the doors 
21 to some cross-examination, which may or may not open the door 
22 to further detail on the impeachment. Before I -- if I think 
23 I've got there before I do it, I will certainly approach the 
24 bench and let the Court know. 
25 THE COURT: Well, there are some rare occasions, I 
1017 
 1 would agree. I don't -- I haven't heard anything in this 
2 case yet, but I don't -- I haven't heard all his testimony. 
3 MR. CRANE: Yeah, well, you're going to approach. 
4 MR. ROGERS: I will approach. 
5 MR. CRANE: Okay. 
6 THE COURT: All right. 
7 Bring the jury back into the courtroom. And get 
8 Mr. Trump back in. 
9 Do we have a problem? 
10 MR. CRANE: Can he come in when -- after the jury's 
11 been seated, Judge? 
12 THE COURT: Sure. 
13 (Discussion off the record between the Court and the 
14 marshal.) 
15 THE COURT: The jury didn't want to cut this witness 
16 off today. And wouldn't mind staying a little past 6:30. 
17 However, there is a baseball game tomorrow night that they 
18 were aware of, and would hope that we could conclude tomorrow 
19 night by 6:30. And I am instructing our marshal to tell them 
20 that we'll go until this witness is concluded and that we 
21 will make strong effort tomorrow night to quit at 6:30. 
22 So I will tell counsel -- I will tell counsel that 
23 you need to schedule your witnesses so that they might be 
24 able to have that one bit of enjoyment and watch the 
25 Cardinals. 
1018 
 1 All right. 
2 MR. CRANE: This is our last witness of the evening? 
3 THE COURT: Yes. I would assume -- I can't imagine 
4 that it would be done in a short period of time. I assume 
5 there would be substantial cross-examination, or -- I don't 
6 know. If you have someone who's brief, Mr. Crane, don't let 
7 them go. Maybe we'll finish -- 
8 MR. CRANE: No. 
9 THE COURT: -- at quarter after 6. 
10 MR. CRANE: Yeah. I -- we just had some people that 
11 had been waiting for a while. 
12 THE COURT: All right. Well, in light of the fact 
13 that it's possible that you might get another witness on -- 
14 MR. CRANE: Yeah. I -- well, we'll -- 
15 THE COURT: -- don't let him -- 
16 MR. CRANE: -- it'd probably be better off if we let 
17 him go so they can have another -- have their evening. 
18 That's fine. We -- I already told my man to let him go. 
19 THE COURT: Well, maybe you didn't understand. The 
20 jury is willing to stay past 6:30. 
21 MR. CRANE: Oh. 
22 THE COURT: It's tomorrow night they don't want to 
23 stay past 6:30. 
24 MR. CRANE: Okay. 
25 THE COURT: Bring the jury back in the courtroom, 
1019 
 1 please. 
2 - - - 
3 The following proceedings were held in the presence of 
4 the jury: 
5 THE COURT: I apologize for keeping you so long, 
6 ladies and gentlemen. There were some legal issues that we 
7 needed to take up. 
8 MR. CRANE: State would recall Mr. Trump. 
9 THE COURT: Yes. Mr. Trump would be called to the 
10 courtroom. 
11 You remember you're still under oath, Mr. Trump. 
12 THE WITNESS: Yes, ma'am. 
13 - - - 
14 JERRY TRUMP, 
15 resumed the stand and testified further: 
16 RESUMED DIRECT EXAMINATION 
17 BY MR. CRANE: 
18 Q. Sir, while you were in the penitentiary, and I 
19 believe before the jury left, you indicated that was between 
20 December '01 and December '04? 
21 A. That's correct. 
22 Q. Okay. What did you receive in the mail, while you 
23 were incarcerated, from your spouse? 
24 A. I received a -- the partial front page of the 
25 Columbia Tribune. 
1020 
 1 Q. Okay. And do you recall the time frame when you 
2 received this mailing from your wife? 
3 A. March or April. 
4 Q. Of -- 
5 A. Of '04. 
6 Q. Okay. And when you opened this envelope -- 
7 envelope? 
8 A. Yes. 
9 Q. -- from your wife, what was inside? 
10 A. There was a newspaper article. And it was folded -- 
11 Q. Let me ask you: Were you aware that she was sending 
12 you this before you got it? 
13 A. No. 
14 Q. Okay. Now you opened up the envelope, and inside 
15 was what? 
16 A. A newspaper article, with a letter. But the 
17 newspaper article struck my attention first. I was curious 
18 about what it was. And I looked at it while it was still 
19 folded. 
20 Q. And when you opened that article, what did you see? 
21 A. I saw that it was an article about the Kent Heitholt 
22 murder and the two that had come forward -- or one that had 
23 come forward. 
24 Q. What was the first thing that your attention was 
25 drawn to when you opened up this envelope and looked at its 
1021 
 1 contents? 
2 A. As soon as I opened the envelope is: The way the 
3 paper was folded, I saw the two pictures, only. I had no 
4 idea what the article was about. And I recognized the two 
5 pictures -- 
6 MR. ROGERS: Objection, Your Honor. 
7 A. -- and faces. 
8 MR. ROGERS: First of all, this is a narrative. He 
9 answered the question, and then he went on to say something. 
10 Secondly, I would like a continuing objection based upon our 
11 pretrial motion and as developed today. 
12 THE COURT: You may have a continuing objection to 
13 your pretrial motion. And the answer is becoming a narrative 
14 one, and I'd ask the state to ask specific questions than 
15 rather have a narrative. 
16 MR. CRANE: Very well, Judge. 
17 Q. When you looked at these photos, what was your 
18 reaction? 
19 A. I've seen these two faces before. 
20 Q. Where? 
21 A. At the Tribune, the night that Kent was killed. 
22 Q. The night you've described to the jury earlier this 
23 afternoon? 
24 A. Right. 
25 Q. Prior to the time you saw these photographs in the 
1022 
 1 article that your wife sent you, had you looked at, at the 
2 request of law enforcement, the Columbia Police Department 
3 specifically, photographs of -- been provided photographs to 
4 look at of other individuals? 
5 A. Yes. 
6 Q. And in any of those other photographs that the 
7 police asked you to look at over the course of the 
8 investigation of this crime, did you ever pick out any of 
9 those photographs that you were shown? 
10 A. No. 
11 MR. CRANE: Judge, I'd ask to show what's marked for 
12 identification State's Exhibit 30. 
13 THE COURT: You may show that to the witness. Do 
14 not display it to the jury until it's admitted into evidence. 
15 Q. You understand that directive? 
16 A. Yes. 
17 Q. Mr. Trump, is -- do you recognize -- don't read 
18 anything off of the article; okay? 
19 A. Okay. 
20 Q. Do you recognize that as the same Columbia Daily 
21 Tribune article that you have described to the jury that you 
22 received from your wife? 
23 A. Yes. 
24 Q. And what's the date, just the date, of that article? 
25 A. March 11th. 
1023 
 1 Q. Okay. And that's actually the front page of the 
2 paper; correct? 
3 A. That's correct. 
4 Q. Now, what is -- don't turn it around or anything. 
5 On that paper, when you first saw it, what did you see? 
6 A. I saw the two pictures of the two individuals. 
7 Q. Okay. Now there's four photographs on State's 
8 Exhibit 30; correct? 
9 A. That is correct. 
10 Q. Two up and two down. The first two you saw were the 
11 top two? 
12 A. That's correct. The colored. 
13 Q. And then what did you do with the paper? 
14 A. I opened it up to see what it was about for sure. 
15 Q. And then you saw the other two photographs. 
16 A. When I saw Kent Heitholt, I put two and two 
17 together, but then began in earnest to read the article. 
18 Q. Okay. But what was the first thing you saw? 
19 A. Was the picture of both of the people that possibly 
20 had done it. 
21 Q. All right. Were those the individuals that were -- 
22 that you saw outside on November 1, 2001, at Kent Heitholt's 
23 car? 
24 A. Yes. 
25 MR. ROGERS: Objection. Leading. 
1024 
 1 THE COURT: Well, the question has been answered. 
2 MR. ROGERS: I objected as soon as he finished. 
3 THE COURT: Do you want to rephrase your question? 
4 MR. CRANE: Yeah. 
5 MR. ROGERS: I'll withdraw the objection. 
6 MR. CRANE: Yeah. I mean, it's kind of tricky -- 
7 I'm trying to tiptoe a little bit around -- so can I ask that 
8 question? 
9 Q. You understood the question? 
10 A. Yes. 
11 Q. Okay. 
12 THE COURT: He answered the question, Mr. Crane. 
13 Q. Were those the -- those photographs -- 
14 MR. ROGERS: I'm going to object if he's going to do 
15 it again as leading. But I was withdrawing my objection on 
16 the basis it had already been answered. 
17 THE COURT: He answered it preliminarily -- 
18 MR. CRANE: Okay. All right. 
19 THE COURT: -- the first time you asked it, 
20 Mr. Crane. 
21 MR. CRANE: Okay. 
22 Judge, I would offer State's Exhibit 30, without at 
23 this time publishing it to the jury. 
24 MR. ROGERS: Your Honor, I have no objection to this 
25 being introduced for the record, but I do have an objection 
1025 
 1 that if at any time it get published to the jury. And I 
2 would suggest that -- you're ahead of me. You picked up the 
3 photograph that you referred to. 
4 MR. CRANE: Right. Can I proceed, Your Honor? 
5 THE COURT: 30 is admitted, but may not at this time 
6 be displayed to the jury. 
7 MR. CRANE: Okay. We can do that. 
8 - - - 
9 State's Exhibit 30 admitted into evidence. 
10 - - - 
11 Q. Now let me show you what's already in evidence as 
12 State's Exhibits 19 and 20. 19 and 20. And are those the 
13 individuals that are depicted in the top two photographs that 
14 you first saw when you looked at that article? 
15 A. Yes. 
16 Q. Okay. 
17 MR. CRANE: And those are already in evidence. 
18 THE COURT: They are in evidence. 
19 Q. And Mr. Trump, let me also show you what's in 
20 evidence as State's Exhibits 17 and 18 and ask if those are 
21 the bottom two photographs that were in the article dated 
22 March 11, 2004 -- 
23 A. Yes. 
24 Q. -- that you saw -- that you received from your wife. 
25 A. That's correct. 
1026 
 1 Q. Okay. Now, after you saw that article and those 
2 photographs, you were released from the penitentiary in 
3 December -- well, when were you released? 
4 A. December the 13th, '04. 
5 Q. All right. And when do you recall thereafter 
6 meeting in my office reference this case? 
7 A. About a week later. 
8 Q. Okay. And you came down to my office, and Mr. Bill 
9 Hawes, back there, was present when we met; is that correct? 
10 A. That's correct. 
11 Q. And on that occasion, we -- it's the first time we'd 
12 met; right? 
13 A. That's right. 
14 Q. And we were actually going to go on down to the 
15 Tribune, and you were going to show us your perspective down 
16 there? 
17 A. Correct. 
18 Q. And also I think we listened to the 911 tape 
19 together? 
20 A. Correct. 
21 Q. When was the first time you told anybody in law 
22 enforcement about seeing the photos of these two individuals 
23 that you recognize as the ones that were out at Kent 
24 Heitholt's car on November 1, '01? 
25 A. At your office. 
1027 
 1 Q. Had you told anybody before that? 
2 A. No. 
3 Q. Mr. Trump, thereafter, were you shown State's 
4 Exhibit 30, the article, or those photos, before today? 
5 A. No. 
6 Q. Nobody from law enforcement showed you these photos 
7 until today. 
8 A. That's correct. 
9 Q. Okay. Sir, do you see here in the courtroom -- and 
10 I'm going to ask you to do this. If you do, point to the 
11 individual, if you see the either of the people that you saw 
12 that night, on 11-1-01, here in the courtroom with us today, 
13 please point out that individual. 
14 MR. ROGERS: Your Honor, I object. And I would ask 
15 that this be subject also to my continuing objection, based 
16 upon the pretrial motion and the record we made earlier. 
17 THE COURT: It will -- there will be a continuing 
18 objection until you tell me that there will not be. 
19 MR. ROGERS: All right. 
20 THE COURT: So it's understood that you are 
21 objecting to the witness's in-court identification, as well 
22 as the other matters. And it will continue. 
23 MR. ROGERS: Thank you. 
24 THE COURT: It is overruled. 
25 MR. CRANE: Proceed, Your Honor? 
1028 
 1 THE COURT: Yes. 
2 Q. Mr. Trump, if you see the individual here with us 
3 today, or individuals in the courtroom today that you saw on 
4 11-1-01 and the events you described out at Kent Heitholt's 
5 vehicle, would you point to that individual or individuals, 
6 please. 
7 A. Yes. (Pointing.) 
8 Q. Okay. Now, would you describe for us what the 
9 person you're pointing to is wearing. 
10 A. He's wearing a blue sweater, it looks -- appears, 
11 and a red tie, white shirt. 
12 Q. Okay. 
13 A. Dark-haired. 
14 Q. And -- 
15 A. Sitting between the woman and the gentleman that is 
16 challenged without hair. 
17 Q. Okay. 
18 MR. ROGERS: Which one? 
19 A. Two men challenged. 
20 Q. And that is one of the two individuals that you saw. 
21 A. That's correct. 
22 Q. Had you ever seen -- well, strike that. 
23 MR. CRANE: Judge, I'd ask the record reflect the 
24 witness has identified the defendant. 
25 THE COURT: It will. 
1029 
 1 Q. Had you ever seen that young man before the night of 
2 November 1, '01? 
3 A. No. 
4 Q. What about the other individual? 
5 A. No. 
6 MR. CRANE: No further questions of this witness, 
7 Judge. 
8 THE COURT: You may inquire. 
9 MR. ROGERS: Thank you, Your Honor. 
10 May we approach? 
11 THE COURT: Yes. 
12 - - - 
13 Counsel approached the bench and the following 
14 proceedings were held: 
15 MR. ROGERS: Your Honor, it's my belief that, in 
16 accordance with the local rule, that Mr. Trump's deposition 
17 might become at issue, and therefore I would like to file 
18 with the Court the original, which does include the signature 
19 page. 
20 THE COURT: Okay. I'll show that it is filed. 
21 MR. ROGERS: Thank you. 
22 THE COURT: Uh-huh. 
23 - - - 
24 The following proceedings were held in open court: 
25 - - - 
1030 
 1 CROSS-EXAMINATION 
2 BY MR. ROGERS: 
3 Q. Mr. Trump, it is fair to say, is it not, that these 
4 colored pictures, State's Exhibits 19 and 20, are the ones 
5 that attracted your attention when you opened the newspaper 
6 article from your wife. 
7 A. When I opened the envelope, yes. 
8 Q. When you opened the envelope containing the 
9 newspaper article. 
10 A. Correct. 
11 Q. And those leaped right out at you. 
12 A. Yes. 
13 Q. And then you went ahead and opened the rest of the 
14 article. 
15 A. That's correct. 
16 Q. And you saw a very large picture of Kent Heitholt. 
17 A. Correct. 
18 Q. And that was, in fact, the same picture that is 
19 shown in State's Exhibit 1A; is that correct? 
20 A. I believe that's correct. 
21 Q. And 1A is also in evidence. Correct? 
22 A. Correct. 
23 Q. And it was much larger than State's Exhibits 19 or 
24 20. 
25 A. Yes. 
1031 
 1 Q. The way you saw it displayed in the newspaper. 
2 A. That's correct. 
3 Q. And you, of course, immediately recognized 
4 Mr. Heitholt. 
5 A. That's true. 
6 Q. Because you had worked there for a few months at 
7 least. 
8 A. Correct. 
9 Q. And you knew him. 
10 A. Right. 
11 Q. And you talked to him. 
12 A. Correct. 
13 Q. And you were present the night he was killed. 
14 A. That's correct. 
15 Q. And you talked to the police about that. 
16 A. Correct. 
17 Q. And that's, when you saw the picture of 
18 Mr. Heitholt, when you put two and two together, as you said. 
19 A. Correct. 
20 Q. And that's when you said you associated these people 
21 in this picture with the night Mr. Heitholt was killed. 
22 A. Well, I knew when I saw the two pictures of the two 
23 boys, they were the ones I had seen on the night that he was 
24 killed. 
25 Q. But you told us earlier that after seeing Heitholt's 
1032 
 1 picture is when you put two and two together. 
2 A. Right. 
3 Q. Okay. Now, you also saw, when you opened the 
4 newspaper article up and started reading the whole thing, the 
5 other two pictures, Exhibits 17 and 18. The black and white 
6 ones. 
7 A. Correct. 
8 Q. And those did not look as familiar to you as the 
9 colored pictures; is that correct? 
10 A. No, not necessarily. They looked familiar too. 
11 I -- at that point I was more focused on the article itself. 
12 Q. Now, you have described two individuals that you saw 
13 that night; is that correct? 
14 A. That's correct. 
15 Q. And both of those individuals you have described as 
16 being close to six feet tall. 
17 A. Close, yes. 
18 Q. In fact, you described them as being six feet tall 
19 the night it happened, didn't you? 
20 A. Right. 
21 Q. And how tall do you think I am? 
22 A. Five six. Five five. 
23 Q. Nowhere close to six foot. 
24 A. No. 
25 Q. And the people you saw that night were both taller 
1033 
 1 than me. 
2 A. Yes. 
3 Q. Significantly. Significantly taller than I am. 
4 A. Right. 
5 MR. ROGERS: Mr. Ferguson, would you please stand 
6 next to me? 
7 (Defendant complying.) 
8 MR. ROGERS: Thank you. 
9 Q. You can't tell how tall somebody is when you see 
10 their picture in the paper, can you? 
11 A. No. 
12 Q. But you can when you see them on the parking lot. 
13 A. Well, you can if they were standing straight up. 
14 Q. Yeah. 
15 A. But they weren't. 
16 Q. And if they're not standing straight up, they're 
17 going to look shorter and not taller. 
18 A. Perhaps. 
19 Q. And -- let's go back to the early morning of 
20 November 1st and the night of Halloween, November -- excuse 
21 me, October 31st. At that time you worked for C & S 
22 Maintenance Company; is that correct? 
23 A. Cleaning Company. 
24 Q. Cleaning Company. And that was a private company 
25 that contracted with the Columbia Daily Tribune and other 
1034 
 1 businesses to do janitorial work. 
2 A. That is correct. 
3 Q. And there was a crew of three people who worked for 
4 C & S who were responsible for the Tribune building that you 
5 worked at. 
6 A. That's correct. 
7 Q. And that crew included yourself. 
8 A. Correct. 
9 Q. It included Shawna Ornt. 
10 A. Uh-huh. 
11 Q. You have to say yes or no, because -- 
12 A. Yes. 
13 Q. -- she's trying to get -- 
14 A. I'm sorry. Yes. 
15 Q. Okay. And that crew included another guy named Mike 
16 Haynes? 
17 A. I believe that's correct. 
18 Q. Okay. And Mike Haynes is a Caucasian? A white guy? 
19 A. No. 
20 Q. He's a black guy. 
21 A. He's black. 
22 Q. Okay. Do you also know a guy named Mike Boyd who 
23 worked there at the Tribune? 
24 A. Yes. 
25 Q. He didn't work for C & S Cleaning, did he? 
1035 
 1 A. No. 
2 Q. He was a reporter for the Tribune. 
3 A. That's correct. 
4 Q. A sports reporter. Worked for Kent Heitholt. 
5 A. Right. 
6 Q. He's black. 
7 A. Correct. 
8 Q. Okay. And did you see him leave that night? 
9 A. I don't remember seeing Mike leave, no. 
10 Q. You do remember seeing Kent leave. 
11 A. Yes. 
12 Q. And after you saw Kent leave, you were in the dock 
13 area, weren't you? 
14 A. In the dock area? Did you say dock? 
15 Q. Dock. 
16 A. Yes. 
17 Q. The -- you're not outside on the loading dock, but 
18 you're -- 
19 A. No. 
20 Q. -- in on the same level as the loading dock, 
21 cleaning the hallway and then moving into the bathroom to 
22 clean it; correct? 
23 A. That's correct. 
24 Q. And if Boyd had left afterwards, you would have seen 
25 him, wouldn't you? 
1036 
 1 A. Not necessarily. 
2 MR. CRANE: That calls -- 
3 A. Because there was the other exit door. 
4 Q. That didn't go past where you were. 
5 A. That's correct. 
6 Q. All right. And I missed a couple of looks at the 
7 door photos, I think. Calling your attention to Exhibit -- 
8 State's Exhibit 16? 
9 A. Uh-huh. 
10 Q. You've seen this before. This is -- 
11 A. Yes. 
12 Q. -- what I call the door photo. It shows three 
13 garage doors. 
14 A. Correct. 
15 Q. Overhead doors like garage doors. 
16 A. Right. 
17 Q. And then it shows another door that comes out and 
18 down some steps, that's sort of on the same level as the 
19 loading dock? 
20 A. Correct. 
21 Q. And that's a door that would have been where you 
22 would have known it if Mr. Boyd had come out it. 
23 A. Unless I had been in that bathroom or checking on 
24 the other Mike that worked for us in this other area. 
25 Q. Okay. 
1037 
 1 A. The employees at the Tribune never had a practice of 
2 telling me or other of C & S employees that they were 
3 leaving. 
4 Q. Okay. 
5 A. And -- 
6 Q. But if they saw you on their way out, they said 
7 good-bye. 
8 A. Sure. 
9 Q. They were friendly. 
10 A. Right. But I don't remember seeing him leave. 
11 Q. And then you say the "other door." And the "other 
12 door" is the door that opens independently of the indentation 
13 of the loading dock; correct? 
14 A. That's correct. It goes up another set of steps. 
15 Q. And that is to the east or Fourth Street side of the 
16 loading dock. 
17 A. That's correct. 
18 Q. And did you see Kent Heitholt leave that night? 
19 A. Yes, I did. 
20 Q. And which door did he go out? 
21 A. He ended up going out the door that typically the 
22 employees didn't go out, because we had -- or Mike had just 
23 mopped the stairwell, where he would typically go, and he 
24 said, "Well, if that's wet, then I'll go out this other 
25 door." 
1038 
 1 Q. Okay. 
2 A. And I was able to precede him just a little bit, and 
3 I held the door for him. 
4 Q. Now at that time do you know whether Mr. Boyd had 
5 left the building or not? 
6 A. No. 
7 Q. Okay. And you don't know -- you weren't looking at 
8 your watch to time Mr. Heitholt, were you? 
9 A. Not nec -- no. 
10 Q. So you don't know what time that was, exactly. 
11 A. The only way I would have to reference that is that 
12 I had been to smoke just previous to that, and I was still 
13 hearing the music up the street. 
14 Q. Wait a minute. My question was: Did you look at 
15 your watch and -- 
16 A. No. 
17 Q. -- know what time it was? 
18 A. No. 
19 Q. Okay. Now, what time do you think you got to work 
20 that night? 
21 A. Around 9. 
22 Q. Do you usually get there before the other two people 
23 on the crew? 
24 A. No. Sometimes I did. I usually picked Mike up. 
25 Q. How about Shawna? 
1039 
 1 A. I occasionally gave her a ride, but she usually was 
2 coming from Hallsville, which would have been out of my way. 
3 So she usually came a different way. 
4 Q. And she usually showed up on her own. 
5 A. Yes. 
6 Q. She wouldn't show up an hour or an hour and a half 
7 after you came. 
8 A. No. Not if we had agreed to start working at 9 or 
9 whatever time. 
10 Q. You don't have any reason to dispute that she 
11 started at 10 or 10:30? 
12 A. No. She may have. 
13 Q. At some point -- you and she were in the habit of 
14 going out to take smoke breaks together, weren't you? 
15 A. Yes. 
16 Q. But you had taken a smoke break without her on -- 
17 during the early morning hours of November 1st. 
18 A. That's correct. 
19 Q. And by the way, when I say November 1st, I mean, 
20 November the 1st, 2001; right? 
21 A. Right. 
22 Q. We're on the same page here. 
23 A. Correct. 
24 Q. That's the only November 1st you ever worked there, 
25 isn't it? 
1040 
 1 A. Right. 
2 Q. Okay. And when she came and told you she wanted to 
3 go take a smoke break, you told her you were busy cleaning 
4 the rest room, you wanted to finish the rest room before you 
5 took a smoke break, because you'd just had one not too long 
6 before. 
7 A. That's correct. 
8 Q. Okay. And that's when she went out by herself. 
9 A. Yes. 
10 Q. And then you heard the door close behind her. 
11 A. Yes. I believe I did. 
12 Q. When you say you heard the door close behind her -- 
13 A. She may have put a newspaper in the door, but I 
14 heard it at least thud -- 
15 Q. Okay. 
16 A. -- against that. 
17 Q. You're talking about the swinging door next to the 
18 garage doors. 
19 A. That's correct. 
20 Q. And that is a door that has a lock that you need a 
21 key to get back in. It always locks when you close it behind 
22 you. 
23 A. All of them did, yes. 
24 Q. Okay. And at that time do you know whether or not 
25 one of the three garage doors was up? Open? 
1041 
 1 A. Absolutely not. 
2 Q. Absolutely you don't know or -- 
3 A. No. Absolutely it was not open. 
4 Q. There was not a garage door open. 
5 A. No. 
6 Q. Can a garage door be opened from the outside? 
7 A. No. 
8 Q. So there's no way, if this door, this swinging door, 
9 locked behind Shawna, she could have climbed over the railing 
10 onto the loading dock and gone through a garage door. 
11 A. No. 
12 Q. To get back into the building. 
13 A. No. 
14 Q. And she didn't have a key to this door, did she? 
15 A. I don't know if she did or not at that time. That's 
16 why the newspaper was sometimes used. We were following 
17 other Tribune employees. 
18 Q. If she also -- you carried a key to the outer doors. 
19 A. Sure. 
20 Q. And when you smoked together, you could open the 
21 door with your key. 
22 A. Right. 
23 Q. And in fact, you used your key to open the door 
24 after you went out onto the loading dock and into the parking 
25 lot this night. 
1042 
 1 A. That's correct. 
2 Q. When Shawna came back into the building, however she 
3 got in, and told you that she had seen somebody behind Kent's 
4 car, that's when you, after she had insisted, accompanied her 
5 back outside; correct? 
6 A. Well, no. First we went across the hallway from 
7 that rest room on the dock and looked out that garage door. 
8 Q. And couldn't see anything. 
9 A. No. Couldn't see anything. 
10 Q. And that's when you went -- 
11 A. Yes. 
12 Q. -- back outside. 
13 A. No. Well, I opened the first garage door and yelled 
14 for -- "Who's out there." 
15 Q. Okay. So you were doing that from still in the 
16 building. 
17 A. That's correct. 
18 Q. Okay. Now at that time were you carrying anything? 
19 A. Not that I recall, no. 
20 Q. You weren't carrying a vacuum cleaner or a cord or 
21 anything like that. 
22 A. No. 
23 Q. And neither was Shawna. 
24 A. No. 
25 Q. And so when the garage door -- did you -- was 
1043 
 1 opened, none of your cleaning equipment was visible from the 
2 outside through the garage door, was it? 
3 A. Shouldn't have been, no. 
4 Q. Okay. You didn't use power equipment for doing what 
5 you were doing in the bathroom, did you? 
6 A. No, but I would have had a mop bucket on that floor 
7 somewhere. 
8 Q. But nothing with a cord. 
9 A. No. No. 
10 Q. And then when you looked out and yelled and got no 
11 response -- correct? 
12 A. That's correct. 
13 Q. -- did you then walk on out and continue to yell? 
14 A. No. I stayed where I was. 
15 Q. And continued -- 
16 A. And yelled. 
17 Q. And you yelled a second time and got no response. 
18 A. That's correct. 
19 Q. And that's when you said that you tried a trick you 
20 had used with kids before. 
21 A. Right. With my own. 
22 Q. With your own kids before. With children who were 
23 entrusted to your care. 
24 A. That's correct. 
25 Q. And that was telling them, falsely, "I know you -- I 
1044 
 1 see you there. Who are you?" Or something like that? 
2 A. That's correct. 
3 Q. And you'd done that to your own kids before. 
4 A. That's right. 
5 Q. And then that's when you say you saw two people 
6 stand up. 
7 A. That's correct. 
8 Q. By Kent's car. 
9 A. That's correct. 
10 Q. And there was one person who was towards the rear of 
11 the car. 
12 A. That's right. 
13 Q. And there was one person who was towards the front 
14 of the car. 
15 A. That's correct. 
16 Q. And you say that they were both on the driver's side 
17 of the car. 
18 A. That's correct. 
19 Q. And the person who was towards the rear of the car, 
20 is that the person that you say is Mr. Ferguson, who you 
21 identified today? 
22 A. That's the way I recall it, yes. 
23 Q. The person towards the rear of the car. 
24 A. That's correct. 
25 Q. And is that the person who said to you, "Somebody's 
1045 
 1 hurt here, man"? 
2 A. No. I don't know who said that. 
3 Q. You don't know which one said that. 
4 A. No. Because I believe that was said when they were 
5 still crouched down behind the car. 
6 Q. And -- so nobody stood up and said that. That was 
7 said before they stood up? 
8 A. I think it was about the same time, but it was -- I 
9 think they were still hidden from me when they said that. 
10 Q. And it certainly couldn't have been somebody who 
11 stood up and looked at Miss Ornt and said that to her. 
12 A. Said it to Shawna? 
13 Q. Yeah. 
14 A. No. 
15 Q. No. Couldn't have happened like that. 
16 A. No. 
17 Q. Okay. Now you described two people to the police; 
18 correct? 
19 A. Correct. 
20 Q. And you described them both as white males, around 
21 six feet tall; correct? 
22 A. Correct. 
23 Q. Thin. 
24 A. Right. Or medium build. Thin I think is what I 
25 first told the police. 
1046 
 1 Q. Okay. And was either of these men wearing a hooded 
2 sweatshirt? 
3 A. Not that I recall. 
4 Q. And that's something you would have the opportunity 
5 to see, because you saw these people from different angles. 
6 A. Right. 
7 Q. And neither, that you can recall, was wearing a 
8 hooded sweatshirt. 
9 A. Not that I recall. 
10 Q. With either the hood up or the hood down. 
11 A. No. 
12 Q. Okay. And the person towards the rear of the car, 
13 was that the person with light hair or the person with dark 
14 hair? 
15 A. As I recall, it was -- the person at the rear was -- 
16 had the darker hair. 
17 Q. Had the darker hair. And that's the person that you 
18 have identified today as Mr. Ferguson. 
19 A. That's correct. 
20 Q. And by the way, when you identified Mr. Ferguson a 
21 few minutes ago -- he's sitting over here at the table; 
22 right? 
23 A. Correct. 
24 Q. You've been in court before. You know where 
25 defendants sit, don't you? 
1047 
 1 A. Right. 
2 Q. Okay. And you know me, because we met before -- 
3 A. Right. 
4 Q. -- back in June. 
5 A. Correct. 
6 Q. You know Mr. Weis, because you met him before, back 
7 in June. 
8 A. Right. 
9 Q. And Miss Benson may be blond, but she's no male. 
10 A. Right. 
11 Q. Okay. And you know these guys. The prosecutors. 
12 A. Right. 
13 Q. So, by process of elimination, it's not too hard to 
14 figure out who's the defendant, is it? 
15 A. No. It's not. 
16 Q. You've described these individuals as being -- to 
17 the police as being 19 or 20 years old. 
18 A. Yes. 
19 Q. And you consider yourself a pretty good judge of the 
20 age of young males. 
21 A. Well, I don't know how good, but that was my guess 
22 at that point. 
23 Q. Okay. And would you say that the individuals 
24 depicted in State's Exhibits 19 and 20 appear to be about 19, 
25 20 years old? 
1048 
 1 A. Thereabouts, yes. 
2 Q. Okay. 
3 A. Maybe a little older at that point. 
4 Q. All right. But they could be, at the time these 
5 pictures were taken, 19 and 20? 
6 A. Right. I've learned over the years, though, that 
7 that can fool you, so -- 
8 Q. All right. 
9 A. -- I don't know. 
10 Q. You would agree that the people depicted in State's 
11 Exhibits 17 and 18 look younger than the people in Exhibits 
12 19 and 20. 
13 A. Yes. 
14 Q. Considerably younger. 
15 A. Some younger, yes. 
16 Q. And you would not mistake either of these 
17 individuals -- 
18 A. No. 
19 Q. -- for being 19 or 20 years old, would you? 
20 A. I don't know. It just kind of depends. By -- at 
21 that point in my life, I had worked with kids a lot, and so 
22 I -- you know, I -- maybe I was -- did feel like I was a good 
23 judge of that. 
24 Q. You had worked with kids a lot? 
25 A. Yes. 
1049 
 1 Q. And where have you worked with kids a lot? 
2 A. Different places. 
3 Q. Were you working with kids in November of 1997? 
4 A. Yes. 
5 Q. Where were you working with kids then? 
6 A. At the Missouri Military Academy, Mexico, Missouri. 
7 Q. And were you still working there in January of 1998? 
8 A. Yes. 
9 Q. In February 1998? 
10 A. Yes. 
11 Q. In April 1998? 
12 A. Yes. 
13 Q. And in May of 1998? 
14 A. Yes. 
15 Q. And is it fair to say that it was in the context of 
16 your employment at the Missouri Military Academy that you 
17 were charged with -- 
18 MR. CRANE: Judge, I'm going to object. Same reason 
19 I stated earlier. 
20 THE COURT: Would you approach the bench. 
21 MR. ROGERS: I wasn't there yet, but I would be 
22 happy to approach. 
23 - - - 
24 Counsel approached the bench and the following 
25 proceedings were held: 
1050 
 1 MR. ROGERS: I was going to ask him: Were charged 
2 with endangering the welfare of a child in the first degree, 
3 which I think is within the scope of what you agree is proper 
4 impeachment. 
5 MR. CRANE: That's what you were going to ask him. 
6 MR. ROGERS: That's what I was going to ask him. 
7 But I'm glad we approached, because I assume he would say 
8 yes, and I intend to ask him that "Isn't it true that those 
9 charges involved sexual contact with a 16-year-old male and 
10 you were able to get" -- 
11 MR. CRANE: That's not where that question was 
12 going. 
13 MR. ROGERS: That's exactly -- 
14 MR. CRANE: You were going: "And it was your 
15 employment connected with" -- 
16 MR. ROGERS: I already established his employment on 
17 the dates, and I was going to ask: "Was that employment" -- 
18 was it in connection with that employment that he was charged 
19 with endangering the welfare of a child. 
20 MR. CRANE: He can't do that. 
21 THE COURT: I'm going to sustain the objection. 
22 MR. ROGERS: Your Honor, excuse me. I think it's 
23 been opened up. He volunteered having worked with kids. I 
24 didn't ask him that. He volunteered it. 
25 THE COURT: That has nothing to do with convictions. 
1051 
 1 MR. ROGERS: Okay. 
2 - - - 
3 The following proceedings were held in open court: 
4 Q. And that military academy was located in Moberly, 
5 Missouri; is that correct? 
6 A. No. 
7 Q. Where was it? 
8 A. Mexico, Missouri. 
9 Q. Mexico, Missouri. I'm sorry. And that's Audrain 
10 County. 
11 A. Correct. 
12 Q. And on August 2nd, 1999, you entered pleas of guilty 
13 in the Circuit Court of Audrain County, Missouri, to five 
14 different counts of endangering the welfare of a child in the 
15 first degree -- 
16 A. That's correct. 
17 Q. -- a class D felony; correct? 
18 A. Pardon me? 
19 Q. A class D felony. 
20 A. That's correct. 
21 Q. And that's five different counts, that occurred on 
22 five different dates, in Audrain County, Missouri. 
23 A. That's correct. 
24 Q. And for each of those sentences, each of those pleas 
25 of guilty, you were sentenced to a term of five years in the 
1052 
 1 Missouri department of corrections; is that correct? 
2 A. To run concurrently, yes. 
3 Q. To run concurrently. 
4 A. Correct. 
5 Q. Five counts, five years each count, all together. 
6 A. Correct. 
7 Q. Total of five years. Right? 
8 A. That's correct, sir. 
9 Q. And you were placed on probation after having served 
10 120 days of that sentence; is that correct? 
11 A. That's correct. 
12 Q. And where did you serve that 120 days? 
13 A. Partially at Fulton Reception Diagnostic Center and 
14 partially at Farmington Correctional Center. 
15 Q. Farmington Correctional Center in Farmington, 
16 Missouri. 
17 A. Correct. 
18 Q. And after that 120 days, you were released on 
19 probation. 
20 A. That's correct. 
21 Q. And you were required, as a condition of your 
22 probation, to participate in a program -- 
23 MR. CRANE: Well, Judge, I'm going to object to this 
24 line of questioning. That's improper impeachment. 
25 THE COURT: The objection is sustained. 
1053 
 1 Q. Why were you living in Columbia on November the 1st, 
2 2001? 
3 MR. CRANE: Same objection, Judge. 
4 THE COURT: Are we talking about something that 
5 potentially might relate to the impeachment that you were 
6 going into? 
7 MR. ROGERS: No. I don't think -- well, I don't 
8 think so. I mean, everything -- but I'm just asking him, 
9 wasn't he required as part of his -- 
10 MR. CRANE: Well, Judge, I'm going to object to 
11 that. 
12 THE COURT: The conditions of his probation are not 
13 subject to inquiry as far as the impeachment -- 
14 MR. ROGERS: Okay. 
15 THE COURT: -- in this particular area. So that you 
16 understand the Court's ruling, sir. 
17 MR. ROGERS: All right. Thank you. 
18 Q. Let me put it this way. It was while you were on 
19 that probation that you lived in Columbia. 
20 A. Correct. 
21 Q. And worked for C & S Cleaning Company. 
22 A. That's correct. 
23 Q. And after the death of Mr. Heitholt, but unrelated 
24 to the death of Mr. Heitholt, your probation was revoked. 
25 A. That's correct. 
1054 
 1 Q. And then you were ordered back into the Missouri 
2 department of corrections. 
3 A. That's correct. 
4 Q. And where did you go then? 
5 A. I went back to Fulton for about five months, to 
6 Pacific for about a year or year and a half, and then to 
7 Bonne Terre to complete the three years. 
8 Q. And that was when Bonne Terre opened? 
9 A. Well, shortly thereafter. It had been open a while. 
10 Q. And it was at Bonne Terre that you received the 
11 newspaper from your wife. 
12 A. Correct. 
13 Q. Now, let's go back to the two people you saw in the 
14 parking lot. You described the person at the rear of the car 
15 as the person having the darker hair. Correct? 
16 A. That's what I -- that's what I said, yes. 
17 Q. Okay. And that's what you told the police then. 
18 A. That's correct. 
19 Q. That's what you told us today. 
20 A. Sure. 
21 Q. And then -- you told the police then that this 
22 person was wearing a baseball cap pushed back on his head. 
23 A. I recall saying that, yes. And that's why -- I 
24 still sort of remember that. 
25 Q. So you remember that. 
1055 
 1 A. Right. 
2 Q. Okay. And was this person wearing a shirt? 
3 A. He had some kind of a top on, yes. 
4 Q. Was he wearing a jacket? 
5 A. I don't recall. 
6 Q. Do you recall talking to Detective Lloyd Simmons the 
7 day after this happened? 
8 A. I don't specifically remember that name, but I 
9 talked to a detective, yes. 
10 Q. Do you recall describing the person who sat -- who 
11 was near the rear of the car as a white male, younger, 
12 possibly near the age of 20, who had dark hair? 
13 A. Uh-huh. 
14 THE COURT: Is that yes? 
15 THE WITNESS: Yes. I'm sorry. 
16 MR. ROGERS: Thank you. Thank you, Your Honor. 
17 Q. You told him the individual was wearing a ball cap 
18 that was somewhat sitting back on the back portion of his 
19 head? Correct? 
20 A. Correct. 
21 Q. And that you initially looked at the suspect, and 
22 you thought he looked somewhat like Kent. 
23 A. Yes. 
24 Q. And that you -- that the suspect had a round face. 
25 A. Yes. That's what -- I may have said that, yes. If 
1056 
 1 that's what it said. 
2 Q. You told the detective, whatever his name was, that 
3 the second suspect was also a white male in his early 20s; is 
4 that correct? 
5 A. That's correct. 
6 Q. And that the second suspect, which would have been 
7 the one by the front of the car, had a thinner face than the 
8 first suspect. 
9 A. Yes. 
10 Q. Okay. 
11 A. I'll agree with you anyway that that's what that 
12 says. 
13 Q. Okay. And that's what you remember telling him, 
14 isn't it? 
15 A. Right. 
16 Q. Okay. You also told him that you were not certain 
17 if you could identify those people. 
18 A. Correct. 
19 Q. Now could you tell us now, from your memory, whether 
20 either of the people that you saw was wearing a jacket? 
21 A. No, I couldn't tell you that for sure. 
22 Q. Could you tell us whether either of the people you 
23 saw was wearing a long-sleeved shirt? 
24 A. Not -- not for sure, no. 
25 Q. Could you tell us whether either of the people you 
1057 
 1 saw was wearing a short-sleeved T-shirt? 
2 A. No. 
3 Q. And you did listen earlier today to the 911 tape. 
4 A. Yes. 
5 Q. And in the 911 tape, you heard your own voice. 
6 A. Correct. 
7 Q. And you heard your own voice say that these people 
8 were not wearing caps or jackets. 
9 A. At that time, that's correct. Um -- 
10 Q. Okay. You've answered. Now let me ask you this. 
11 You did go -- as we say -- as I say, you and I have met 
12 before; right? 
13 A. Right. 
14 Q. And we met in Mr. Crane's office back on June the 
15 29th of this year, didn't we? 
16 A. Correct. 
17 Q. And you had -- gave what was called a deposition. 
18 A. That's correct. 
19 Q. And that is testimony under oath, with a court 
20 reporter. Correct? 
21 A. Correct. 
22 Q. And I asked you some questions there. Correct? 
23 A. Yes. 
24 Q. And do you recall the following questions being 
25 asked and the following answers given? 
1058 
 1 MR. ROGERS: Your Honor, starting on page 25. 
2 THE COURT: Here. Here's the deposition that has 
3 been filed. 
4 THE WITNESS: Thank you. 
5 Q. For your edification or help or use. Convenience. 
6 And starting on page 25, at line 4. 
7 A. Okay. 
8 Q. "QUESTION: Okay. And could you tell what either of 
9 them was wearing? 
10 "ANSWER: No, not really. 
11 "QUESTION: Could you tell -- 
12 And then you answer: "A jacket. I believe both of 
13 them had jackets on. It was, you know, pretty cool, but -- 
14 "QUESTION: Do you remember that? 
15 "ANSWE