317
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA )
5 )
vs. ) File No. 3:97CR23-P
6 )
AQUILIA MARCIVICCI BARNETTE, ) SENTENCING PHASE
7 )
Defendant. )
8 )
9
10 Transcript of proceedings before the Honorable
11 ROBERT D. POTTER, Senior United States District Court Judge,
12 before Scott A. Huseby, Official Court Reporter and Notary
13 Public, on the 2nd day of February, 1998.
14 APPEARANCES:
15 For the United States:
16 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
17 Assistant United States Attorneys
227 West Trade Street, Suite 1700
18 Charlotte, North Carolina 28204
19
On Behalf of the Defendant:
20
GEORGE V. LAUGHRUN, Esq.
21 Suite 602
301 South McDowell Street
22 Charlotte, North Carolina 28204.
23
24
25
318
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6
7 MR. LAUGHRUN: Good morning, Judge Potter.
8 THE COURT: Good morning.
9 MR. LAUGHRUN: Before we begin, we were made aware of
10 something after court on Friday --
11 THE COURT: I'm sorry, what?
12 MR. LAUGHRUN: We were made aware of something that took
13 place in court Friday, made aware of it after court, and through
14 Mr. Huseby's efforts, he provided Saturday a transcript to us of
15 testimony of Crystal Dennis. She was the lady who came in in a
16 leopard skin outfit on Friday. We have got a copy of her
17 testimony, Judge. And to be candid with Your Honor, I don't
18 think I heard it, Mr. Williams, I know, didn't hear it, the
19 government heard it because they alerted us to it Monday
20 afternoon, so if they heard it, I'm sure the jurors heard it
21 Friday afternoon. The question, if you would, I'm going to get
22 you to speak up just a bit, would you tell the members of the
23 jury what you remember about the first meeting with the
24 defendant? Answer --
25 THE COURT: Who was asking the question?
319
1 MR. LAUGHRUN: Mr. Walker.
2 MR. LAUGHRUN: Answer, well, when I first met him, he
3 was sweet, but afterwards, I move in with him, and pardon my
4 language, Judge, he was a cold hearted mother fucker. That was
5 his language.
6 MR. WILLIAMS: Her language.
7 MR. LAUGHRUN: Her language. I've got a copy of the two
8 pages, we've got the whole transcript. What I would ask Your
9 Honor to do, number one, is strike her testimony. No objection
10 was made for that, because quite frankly, if we would have known
11 that you would have had to pull us off the ceiling. I think
12 it's inadmissible. I think it shows extreme bias, and I would
13 ask you to strike her testimony in consideration, if Your Honor
14 please.
15 THE COURT: All right, Mr. Walker.
16 MR. WALKER: Your Honor, I would ask that you deny that
17 motion. I mean, this witness is -- Ms. Dennis was in a living
18 arrangement with the defendant. She has a basis for forming her
19 opinion, and if that's her opinion, that's her opinion. And it
20 may be crude and her language may not be the most ideal language
21 for a courtroom, but that's what she said, that's what she
22 thinks, and I would just ask you to deny that motion.
23 THE COURT: Well --
24 MR. LAUGHRUN: If I could, I understand she can give her
25 opinion. She wasn't asked that.
320
1 THE COURT: Well, I understand. Let me just say what
2 I'm going to say. Obviously, she shouldn't have said that. I
3 can tell the jury to disregard that remark. I'm not going to
4 strike all of her testimony.
5 MR. LAUGHRUN: With that, because of that, we would move
6 for a mistrial based on that, if Your Honor please.
7 THE COURT: All right, sir, motion denied.
8 MR. LAUGHRUN: Judge, another thing, still got a couple
9 of other matters, Friday night on channel 9 news, the 10:00
10 o'clock and the 11:00 o'clock news, Alesha Chambers was
11 interviewed by channel 9. She is an employee of channel 9. She
12 works security. Her comment was, I hope I've put him on death
13 row. Now, that was her comment. They did about a 30-second
14 interview of her. She works for channel 9. I think that's
15 clearly improper.
16 THE COURT: That's right, she does work for channel 9.
17 MR. LAUGHRUN: Right. I would hope they had more ethics
18 than that, but I'm obviously wrong, to broadcast an interview
19 like that during the course of a case this serious, they saw fit
20 to broadcast it. I would ask Your Honor to inquire as to the
21 members of the jury if they heard anything about that particular
22 portion, because that is so crucial to this issue.
23 MR. CONRAD: Your Honor, I have read maybe five or six
24 times in the paper Mr. Laughrun telling The Charlotte Observer,
25 we are just trying to save his life. He's said that five or six
321
1 times in The Charlotte Observer.
2 THE COURT: All right, sir, I'm just going to ask the
3 jury if they've seen, heard or read anything from any news,
4 whatever.
5 MR. CONRAD: What I would ask the Court to do is just
6 general comment like you've done every day during the trial,
7 have you seen, read or heard anything, but not specifically with
8 respect to that interview.
9 THE COURT: All right, sir.
10 MR. CONRAD: Because he's been doing it the whole time
11 we've been trying this case.
12 MR. LAUGHRUN: I'm going to defend myself on that,
13 Judge. I have a right to comment on that, not specifics, no
14 specific evidence was commented on. And I'll say this, Judge,
15 the families of the victims have been extremely -- they have
16 declined all requests for interviews, which is a class act on
17 their part. It's what they should do, and they have done,
18 because all the news media said members of the Allen family and
19 Williams have declined comment, and I admire them for that
20 classiness that they've shown. But this person comes in here
21 obviously with a vendetta against the defendant and makes those
22 prejudicial comments, if Your Honor please.
23 THE COURT: All right, thank you, sir, call the jury.
24 (The jury returned to the courtroom.)
25 THE COURT: Good morning, ladies and gentlemen, hope you
322
1 had a nice weekend. I'm sorry about the courtroom being cold
2 this morning, sorry we're a couple of minutes late starting
3 here. We had some matters to take up. We're trying to get it
4 warmed up. I notice some of you men don't even have -- you want
5 to go back and get a sweater or jacket or something? It's kind
6 of chilly sitting here with sleeveless shirts on.
7 All right, members of the jury, I have to ask you again,
8 of course, have any of you over the weekend seen, heard or read
9 anything about this case at all, seen anything on television?
10 (Jurors shake heads.)
11 THE COURT: Not seen anything on television concerning
12 this case?
13 (Jurors shake heads.)
14 THE COURT: Not seen anything on television or in the
15 newspaper about comments made by anyone, is that correct,
16 including the lawyers, is that right?
17 (Jurors shake heads.)
18 THE COURT: All right, fine, call your next witness --
19 oh, that's right, we're over here now.
20 MR. LAUGHRUN: Your Honor, you were going to ask about
21 the other matter we discussed.
22 THE COURT: Let me have that.
23 MR. LAUGHRUN: I have a transcript that we'd like to
24 offer --
25 THE COURT: Let me just have it just a minute.
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1 MR. LAUGHRUN: For the record, it's marked Defendant's
2 Motion Exhibit 1.
3 THE COURT: Members of the jury, over the -- during the
4 testimony of Crystal Dennis, she made the statement, which I
5 want you to dismiss from your minds, do not consider it in any
6 way in your deliberations, she had no reason to do this or she
7 had no, I'll say no business doing this. But sometimes
8 witnesses say these things and, of course, we can't stop them
9 once they get it out, you can't do anything about it. But I can
10 ask you to disregard this entirely. Her statement was in answer
11 to a question, When I first met him, he was sweet, but
12 afterwards I moved in with him, he was a cold hearted, and I
13 hate to use this term but this is her testimony, he was a cold
14 hearted mother fucker, he was just, he was just real cold
15 hearted. Y'all disregard any -- that's her opinion. Witnesses
16 are not to state opinions unless they are experts, so just
17 disregard any opinions stated by any witness. Thank you very
18 much.
19 All right, call your next witness.
20 MR. LAUGHRUN: Judge before calling the witnesses
21 witness, we would move introduction of the exhibits previously
22 identified through the government's witnesses, Defendant's
23 Exhibit 2 by Investigator Holl, 2A by Investigator Holl.
24 THE COURT: Wait a minute, let me catch up you here, 2,
25 2A.
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1 MR. LAUGHRUN: 17.
2 THE COURT: 17.
3 MR. LAUGHRUN: 21.
4 THE COURT: 21.
5 MR. LAUGHRUN: 26.
6 THE COURT: 26.
7 MR. LAUGHRUN: 26A.
8 THE COURT: 26A.
9 MR. LAUGHRUN: 45.
10 THE COURT: 45.
11 MR. LAUGHRUN: 46.
12 THE COURT: 46.
13 MR. LAUGHRUN: 47A through M, Judge, and they are
14 mounted, Judge, on a board.
15 THE COURT: 47A through M?
16 MR. LAUGHRUN: Yes, sir, they were identified by
17 Investigator Holl.
18 THE COURT: Now, gentlemen, yes, I have not asked you
19 what those were. Do y'all have any objection to any of these?
20 MR. CONRAD: No, sir.
21 THE COURT: Thank you very much, let them all be
22 admitted.
23 MR. LAUGHRUN: I have got a few more, Your Honor.
24 THE COURT: Wait a minute, let me get -- go ahead and
25 I'll get them all at one time.
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1 MR. LAUGHRUN: 49.
2 THE COURT: 49.
3 MR. LAUGHRUN: 48A, B, C and D.
4 THE COURT: Wait a minute, 48 what?
5 MR. LAUGHRUN: A through D, inclusive.
6 THE COURT: Oh, A through D, okay, A through D.
7 MR. LAUGHRUN: 51.
8 THE COURT: 51.
9 MR. LAUGHRUN: 52.
10 THE COURT: 52.
11 MR. LAUGHRUN: 50.
12 THE COURT: 50.
13 MR. LAUGHRUN: 53A and B.
14 THE COURT: Somebody coughed there, what did you say?
15 MR. LAUGHRUN: 53A and B.
16 THE COURT: 53A and B, all right.
17 MR. LAUGHRUN: And we don't care to publish those to the
18 jury at this time.
19 THE COURT: Okay, just want to make sure. The Clerk
20 tells me you only had A through L listed. Is it A through M?
21 She had A through L on 47. 47, you had A through M you told
22 me. I think you only had A through L.
23 MR. LAUGHRUN: I'm sorry, it's A through L, Judge.
24 THE COURT: A through L, all right, thank you. Thank
25 you, Mike.
326
1 All right, let's go back and make sure. We have -- the
2 defendants want to introduce Exhibits 2, 2A, 17, 21, 26, 26A,
3 45, 46, 47A through L?
4 MR. LAUGHRUN: Yes, sir.
5 THE COURT: And 49, 48A through D, 51, 52, 50, 53A and
6 B, is that correct?
7 MR. LAUGHRUN: That's correct, Judge Potter.
8 THE COURT: Thank you very much, let them all be
9 admitted.
10 MR. LAUGHRUN: May I go get our first witness, Judge?
11 THE COURT: Yes, sir.
12 MR. WILLIAMS: Defendants call Sonia Barnette, if Your
13 Honor please.
14 SONIA BARNETTE,
15 being first duly sworn, was examined and testified as follows:
16 DIRECT EXAMINATION
17 BY MR. WILLIAMS:
18 Q. Can you hear me all right, Ms. Barnette?
19 A. Yes.
20 Q. Would you tell the jury your name?
21 A. Sonia Barnette.
22 Q. And are you related to this young man seated next to me?
23 A. Yes, I am.
24 Q. And how are you related to him?
25 A. I'm his mother.
327
1 Q. How old are you?
2 A. 39.
3 Q. Where do you live?
4 A. I live at 3413 West Boulevard in Charlotte.
5 Q. How long have you lived at 3413 West Boulevard in
6 Charlotte?
7 A. That's been my family residence since before I was even
8 born. We have always lived at that address.
9 Q. Have -- other than that being in the family, have you
10 lived at other addresses over a period of time?
11 A. Yes, I have, uh-huh.
12 Q. But how many years approximately has that address
13 existed there, 3413 West Boulevard?
14 A. I would say at least 39 years. It started out as Route
15 6, Box 104, New Dixie Road, but that was prior to me being in
16 elementary school.
17 Q. Now, how long have you been at the 3413 West Boulevard
18 address?
19 A. At present, I have been there for about five years now.
20 Q. Who lives there with you now?
21 A. My father.
22 Q. What is your father's name?
23 A. Jessie Cooper. My son Mario Barnette.
24 Q. How old is your son Mario?
25 A. 20. My son John McAllister.
328
1 Q. How old is your son John?
2 A. Four. And my fiancee John West.
3 Q. I want to ask you to tell the jury, I'm going to give
4 you some names of people and tell the jury before we get into
5 your life and Mark's life who these people are. Derrick
6 Barnette?
7 A. That's my ex-husband.
8 Q. And has he also been called or referred to as Ricky?
9 A. Yes.
10 Q. John Thomas Barnette?
11 A. That's Mark's grandfather, that's Derrick's father.
12 Q. Mabel Johnson?
13 A. That's Derrick's aunt and Mark's great aunt.
14 Q. Jean Barbour Holland?
15 A. That is my first cousin.
16 Q. And Jessie Cooper is your father?
17 A. My father, uh-huh.
18 Q. Who was your mother?
19 A. My mother's name was Pearl Anderson Cooper Brown.
20 Q. Is she alive or dead?
21 A. She is deceased.
22 Q. How did she die?
23 A. She was murdered.
24 Q. How old were you when your mother was murdered?
25 A. 16.
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1 Q. What house was she murdered in?
2 A. In the house we lived in at the time, the address was 7,
3 I think it was 716 Peaceful Glen. It's near Arrowood Road in
4 the south end of Charlotte.
5 Q. In Charlotte?
6 A. Uh-huh.
7 Q. Your dad Jessie Cooper and your mom Pearl at that time
8 had been divorced, is that correct?
9 A. Correct.
10 Q. And she, your mama, had remarried?
11 A. Yes.
12 Q. And your mama had remarried to a man by the name of
13 Lloyd Brown, is that correct?
14 A. Yes.
15 Q. And who was the person who murdered your mom?
16 A. Lloyd Brown.
17 Q. Who is Tessie Nero?
18 A. My sister.
19 Q. And how about Jeff Nero?
20 A. That's my brother-in-law.
21 Q. Tina Davis?
22 A. That's an old friend, was a friend of mine.
23 Q. You no longer are friends?
24 A. Well, we don't communicate really anymore. She is very
25 ill now. I called her in the hospital, but we don't have the
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1 type communication we used to.
2 Q. Sheila Cooper?
3 A. That's my youngest sister.
4 Q. Anne Austin?
5 A. Anne Austin was a neighbor and just a long time friend.
6 She --
7 Q. I'm sorry?
8 A. She lived in the neighborhood across from us in the
9 neighborhood we lived in when we were married, and she's been a
10 long time friend.
11 Q. She has two sons, Greg and Steve Austin?
12 A. Correct.
13 Q. Did you know a person by the name of Ayanna Brewer?
14 A. Ayanna Brewer, uh-huh.
15 Q. Who is she?
16 A. She is a -- well, in later years she became a friend of
17 my son Mark's, but actually she is the niece of a long time
18 friend of my mother's from years ago.
19 Q. And John West is your present fiancee?
20 A. Uh-huh.
21 Q. And Mario Barnette is your --
22 A. My son.
23 MR. WILLIAMS: May I approach the witness, Your Honor?
24 THE COURT: Yes, sir.
25 (Pause.)
331
1 MR. WILLIAMS: Approach the witness, Your Honor?
2 THE COURT: Yes, sir.
3 BY MR. WILLIAMS:
4 Q. I want to hand you first two photographs marked for the
5 purposes of identification as Defendant's Exhibit Number 32, and
6 ask you if you know what that is?
7 A. That's the back of my house. That's the back yard.
8 Q. Is that how it looks at this time?
9 A. At this time, uh-huh.
10 Q. And describe for the jury -- let's do this if we can.
11 MR. WILLIAMS: May I be allowed to have the witness come
12 down in front of the jury, Your Honor?
13 THE COURT: Yes, sir.
14 BY MR. WILLIAMS:
15 Q. Come on down in front of the jury with me.
16 THE COURT: Do you want to move admission of that for
17 illustrative --
18 MR. WILLIAMS: I'm sorry, Your Honor, I have to identify
19 them first, I apologize.
20 BY MR. WILLIAMS:
21 Q. Identify these photographs first. That's the back of
22 your house?
23 A. That's the back of the house.
24 Q. And Defendant's Exhibit Number 11, what is that?
25 A. That's a photograph of my mailbox, and that's a
332
1 photograph of my driveway.
2 Q. Okay. And Defendant's Exhibit Number 12?
3 A. That's a photograph of my mailbox, and that's the
4 mailbox and picture like across the street there.
5 Q. Defendant's Exhibit Number 27?
6 A. That's Mark's birth certificate.
7 Q. Speak up a little bit.
8 A. That's Mark's birth certificate.
9 Q. And Defendant's Exhibit Number 37?
10 A. That's a picture of Mark and Mario when they were, I
11 think Mario was about ten months old, Mark was about four years
12 old.
13 Q. Is Defendant's Exhibit 37A an accurate enlargement of
14 the photograph depicted in Exhibit 37?
15 A. Uh-huh.
16 Q. You have to answer yes or no.
17 A. Yes.
18 Q. Defendant's Exhibit 38?
19 A. That's a picture of Mark, a school picture of Mark.
20 Q. How old was he then?
21 A. He was about five years old.
22 Q. And I hand you a photograph marked as 38A for the
23 defense, and ask you if that is an accurate enlargement of
24 Defendant's Exhibit 38?
25 A. Yes, it is.
333
1 Q. Defendant's Exhibit Number 39?
2 A. That's a picture of Mark when he was about ten years
3 old, school picture.
4 Q. Okay. I show you Defendant's Exhibit Number 39A, and
5 ask you if that's an accurate enlargement of Defendant's Exhibit
6 Number 39?
7 A. Yes, it is.
8 Q. Defendant's Exhibit 42?
9 A. That is Derrick and myself's marriage certificate.
10 Q. Defendant's Exhibit Number 38 -- excuse me, Number 28A?
11 A. They are various pictures, a picture of Mark when he was
12 about age five, picture of Derrick and I the day we got married,
13 a picture of Mark and myself in front of the apartment we lived
14 in in Omaha, Nebraska, a picture of Mark and his cousins at my
15 sister Tessie's house in Columbia, South Carolina, picture of
16 Mark and my mother when he was about six weeks old, and a
17 picture of myself and my younger sister and my mother and Mark
18 when he was about six weeks old.
19 Q. Defendant's Exhibit Number 28B?
20 A. A picture of Mark and Mario. This was during the time
21 we lived in Clanton Park, a picture of Mark in front of my
22 sister's house on Farm Pond Lane in one of my vehicles, a
23 picture of Mark and his cousin Candace in our home at Comstock,
24 picture of myself and Mark at our home at Comstock. This is the
25 Easter picture of my sister, my brother-in-law, my two nieces
334
1 and Mark in our front yard, and this is a picture of my sister
2 Sheila and Mark and Mario in front of our apartment in Minot,
3 North Dakota.
4 Q. Defendant's Exhibit Number 28C?
5 A. This is a picture of my sister Sheila and myself
6 going -- in Atlanta going to a function. This is a picture of
7 Mark, myself, Mario, and I'm holding my sister Sheila's little
8 boy, Michael, at a birthday party. And this is a picture of
9 Mark from when he ran track at Lithonia High School in Atlanta,
10 Georgia.
11 Q. Finally, Defendant's Exhibit 28D?
12 A. This is a picture of Mark that he sent me from Virginia
13 where he is standing by his Christmas tree. This is a picture
14 of my sister, myself, my son John McAllister, Mario, my niece
15 Regina, my niece Michaela and Mark, and that's a Christmas tree
16 picture, '95, I believe.
17 Q. The photographs that you just identified, 28A, 28B, 28C
18 and 28D, did you show those photographs to a person by name of
19 Cindy Maxwell who was working for the defense in this case?
20 A. Yes, I did.
21 MR. WILLIAMS: We would offer these exhibits into
22 evidence, if Your Honor please.
23 THE COURT: All right. I'm not going to go back and
24 reiterate all of them. I will say all of those which you have
25 referred to will be admitted. If she's going to go down to the
335
1 jury, if you'd have her put on for the record which one she is
2 talking about, this photograph C.
3 MR. WILLIAMS: If you would come down in front of the
4 jury briefly.
5 BY MR. WILLIAMS:
6 Q. Defendant's Exhibit Number 39 is a photograph that you
7 identified, 39A, as an enlargement of that photograph, is that
8 correct?
9 A. That's correct.
10 Q. Defendant's Exhibit Number 38 is a photograph which you
11 identified, and 38A is an enlargement of that photograph, is
12 that right?
13 A. That's correct.
14 Q. Defendant's Exhibit Number 37 is a photograph that you
15 have identified in 37A as an enlargement of that photograph, is
16 that correct?
17 A. That's correct.
18 Q. Is that a picture of Mark holding his brother Mario?
19 A. Yes.
20 Q. How old was Mark and Mario at the time depicted in this
21 photograph?
22 A. Ten months and four years.
23 Q. Mario was ten months and Mark was four years old?
24 A. Yes.
25 Q. And the photograph that you have identified as 32 is a
336
1 photograph of the back of your home?
2 A. Yes.
3 Q. And Defendant's Exhibit Numbers 11 and 12 are
4 photographs of your mailbox?
5 A. Uh-huh.
6 Q. The front of your home at 3413 West Boulevard?
7 A. Yes.
8 Q. And also a shot of the driveway leading up to your home
9 taken from an upstairs window, is that correct?
10 A. Yes.
11 Q. And photographs that you have described with regard to
12 the family photographs, 28D is a photograph you have described
13 as?
14 A. As Mark, and then my family and friends down the street.
15 Q. And 28C is a photograph or photographs of?
16 A. Of my sister --
17 Q. Why don't you just hold the photograph and point to the
18 jury and show them would be easier.
19 A. It's my sister.
20 Q. Hold it up so all of them can see it.
21 A. Of my sister and myself, of my two sons and myself, and
22 of my son at track, a track photograph.
23 Q. How about 28B, would you show the jury briefly what you
24 said was in there?
25 A. Yes. This is a photograph of my family at Easter, Mark
337
1 and one of his cousins, Mark as his brother, Mark in one of my
2 vehicles, myself and Mark, and my sister and Mark and Mario.
3 Q. Okay. And 28A?
4 A. And this is a picture of Mark of Derrick and myself,
5 myself and Mark in Nebraska, Mark and his cousins, myself and my
6 mother and my sister and Mark and my mother and Mark.
7 Q. Thank you very much, if you will go on back up to the
8 stand and be careful.
9 I want you to go back and tell the jury about Mark
10 Barnette's life from the perspective of his mother, beginning
11 when you got pregnant with him, and begin there and tell the
12 jury when you were pregnant with Mark, how old were you?
13 A. I had Mark when I was 14.
14 Q. What grade were you in school?
15 A. I was in ninth grade at Quail Hollow Junior High School.
16 Q. Have you talked with a person by the name of Cindy
17 Maxwell that we talked about who has been appointed by this
18 court to assist the defense in preparing a life history?
19 A. Several times, yes.
20 Q. And have you talked to her about the events of Mark's
21 life from your perspective?
22 A. Yes.
23 Q. Now, beginning with when you were pregnant with Mark,
24 just go ahead and tell the jury what happened when you became
25 pregnant with Mark, when you were in school and go from there.
338
1 A. Well, I got pregnant with Mark when I was very young. I
2 was in ninth grade at Quail Hollow. My parents were divorced,
3 so it was just my mother and myself and my sister Sheila. He
4 was born. I went through school, I didn't drop out of school or
5 anything like that, because I was on student council and I was
6 on honor roll, so it was real important that I keep my grades,
7 so I stayed in school. And he was born in July which was during
8 the summer months, so I didn't have to miss school, I was able
9 to return to school when school started back.
10 There was a friend of my family that lived in the
11 neighborhood. She was older, but she was expecting her first
12 child, and so my mother made arrangement with her to keep Mark
13 while he was an infant so that I could go to school. She would
14 take him there in the mornings and then when I would get off the
15 school bus, I would stop by there and pick him up and walk from
16 their house home.
17 Q. Was that in Charlotte?
18 A. Yeah, that's in Charlotte, Windsong Trails community,
19 which is off Arrowood Road was where we were living. And my
20 mother was a nurse. She was a nurse at Mercy Hospital for like
21 25 years, so she worked different shifts like 3:00 to 11:00
22 mostly was her shift, was the shift that she worked.
23 Q. And that was Pearl?
24 A. That was Pearl. And so I would pick him up after
25 school, and basically I'd take care of him and then I had my
339
1 younger sister, but she was in school, too. So she would come
2 home and we would be there pretty much, you know, until my mom
3 got home. That was like the first start of his baby-sitting.
4 Then my mother met this gentleman by the name of Lloyd Brown.
5 She had been his nurse when she was working at Mercy Hospital.
6 I think he was in the hospital, I don't know exactly what his
7 illness was, but he was very ill and she had nursed him. Well,
8 we went to the store one day and she saw him or he recognized
9 her or whatever, and he started to call. And they didn't know
10 each other very long, and the next thing she told us that they
11 were going to get married. And my sister and I, we weren't real
12 happy about it because we didn't know him. And, you know, he
13 just showed up and we didn't know who he was and all of a
14 sudden, she said they were going to get married and he was going
15 to move into our house.
16 Q. How old were you when Pearl and Jessie, your mom and
17 dad, were divorced?
18 A. I was probably 12 years old when they divorced. And we
19 always were able to visit my dad and everything, but we lived in
20 two different households.
21 Q. And where did your dad live during this period of time,
22 was he in Charlotte or somewhere else?
23 A. He was at 3413 West Boulevard. He has always lived at
24 that address since he came, I guess from the Korean War. He's
25 always --
340
1 Q. So at some point in time, your dad Jessie was in the
2 Korean War?
3 A. Uh-huh.
4 Q. And then after he got out of the Korean War, he lived at
5 3413 West Boulevard?
6 A. Right.
7 Q. After he got out of the Korean War, was he disabled in
8 any way?
9 A. Yes.
10 Q. As a result of what?
11 A. He was -- my understanding is he was bombed pretty badly
12 in the Korean War to the point that they didn't -- they had sent
13 telegrams to my mother and my grandmother stating that he was
14 missing in action. They, after a period of time, I think they
15 located him in Fort Dix, New Jersey and then shipped him home.
16 Q. Now, so you and -- Pearl and Mr. Brown got married, and
17 then what happened?
18 A. Then it was -- we didn't like it. And so at one point,
19 I took Mark and my younger sister and we left the home. We left
20 and went to my dad's house at 3413 West Boulevard. My mom was
21 real upset that we didn't like him and wanted us to come home,
22 so we did.
23 Q. Let me ask you this, when he was murdered, how old was
24 Mark?
25 A. He was about ten months -- he was about ten months old.
341
1 He was still an infant.
2 Q. Was he in the house when it happened?
3 A. Yes.
4 Q. Who else was in the house when it happened?
5 A. Myself and my sister Sheila.
6 Q. Just tell the jury briefly as you went through from that
7 point on the different places you moved and go on from that
8 point, as you grew up and moved from school to school and place
9 to place?
10 A. Well, when my parents first separated, we moved to -- we
11 moved out. They separated at first for a while, and then they
12 reconciled and we moved back to 3413 but then left again.
13 Q. Did you ever move out of North Carolina?
14 A. Not at that time.
15 Q. When did you move out of North Carolina?
16 A. After my mother was murdered.
17 Q. And where did you go?
18 A. Columbia, South Carolina.
19 Q. Who lived in Columbia, South Carolina?
20 A. Well, my sister Tessie and my brother-in-law Jeff, they
21 were in Fairbanks, Alaska at the time and they got an emergency
22 transfer to Fort Jackson in order for myself, my sister and Mark
23 to come live with them.
24 Q. How long did you live down there?
25 A. I graduated from school at -- probably two years. I
342
1 went through my senior year, and I worked until the point that
2 Derrick and I got married.
3 Q. Tell the jury about Mark, what was he doing and where
4 was he during this period of time, was he in school or at home
5 or what?
6 A. He stayed at first at home with my sister, but then she
7 decided to go to work so then we put him in a day care.
8 Q. And you stayed in South Carolina for about how long?
9 A. About two years before Derrick and I got married.
10 Q. Okay. Where was Derrick when you were in South
11 Carolina?
12 A. He was in Charlotte, but -- Charlotte and then he was at
13 A and T State University, and he would make trips back and forth
14 from there to Columbia to see us.
15 Q. Early on in South Carolina, were there any incidents
16 that Mark had any problems with any other children or any other
17 people in his relationships?
18 A. There was one. He was about two years old and he was at
19 the day care, I can't remember the name of the day care, but
20 they called one day because a little girl had hit him and he
21 turned around and bit her.
22 Q. Where did he bite her?
23 A. On her cheek.
24 Q. Was that -- were there any other reports of any
25 relationship problems that he had while he was in South
343
1 Carolina?
2 A. No, that was all.
3 Q. Where did you move from South Carolina?
4 A. From South Carolina, we moved to, I'm trying to
5 remember, because Derrick joined the Air Force and he did his
6 basic training tour in Texas, but we didn't go there. When he
7 got the next tour, we moved to Omaha, Nebraska.
8 Q. And how long did you stay in Omaha, Nebraska?
9 A. We were there for about 18-month tour.
10 Q. And was Mark in a nursery or was he in the home or what?
11 A. No, he stayed home. I didn't work, so he stayed home
12 with me.
13 Q. And how were the relationships in the family during that
14 period of time?
15 A. They were good then.
16 Q. And then where did you go from Omaha, Nebraska?
17 A. Then from Omaha, I went back to our address 1137
18 Comstock in Clanton Park.
19 Q. And was there a particular reason that you moved back to
20 Charlotte?
21 A. Well, Ricky's mother had passed away, and he inherited
22 the house, he was the only child, so that was our residence.
23 Q. Okay. Was the death of Ricky's mother something that
24 was expected or was it sudden?
25 A. It was very sudden.
344
1 Q. Then Ricky during this period of time was at home or did
2 he go on tour in the service?
3 A. He had to go on tour at that point to Okinawa, Japan.
4 Q. Okay. And how long was he in Japan?
5 A. His tour was about 18 months, but he made several trips
6 home. I then was pregnant with Mario, and so we had to -- we
7 had to finance it, but he had to make a trip home to be in the
8 States during that time.
9 Q. What did you do while Derrick was in the service in
10 Japan?
11 A. I just stayed at home at the house at 1137 Comstock. I
12 didn't work, I just stayed.
13 Q. Had you met a person by the name of Tina Davis at this
14 time?
15 A. Yes.
16 Q. And when did you meet and how did you meet a person by
17 the name of Tina Davis?
18 A. I met Tina when I was about, I guess about eight months
19 pregnant with Mario. Ricky or Derrick introduced me to her,
20 because I didn't know anybody in the neighborhood and so that I
21 would have somebody that could kind of look out for me because I
22 was pregnant. He knew he was going to have to go back to Japan
23 and so that I would have somebody in the neighborhood that I --
24 Q. Did you and Tina Davis go out and socially party or do
25 anything like that?
345
1 A. Oh, yes.
2 Q. Quite a bit?
3 A. Quite a bit.
4 Q. Did you drink alcohol during this period of time?
5 A. Yes.
6 Q. Where was Mark while this was going on?
7 A. He was there, he was there. I mean, he didn't go
8 to -- he did start school, but he didn't go to any other day
9 care or anything like that. During this time, it was about --
10 he was starting like the first grade.
11 Q. He was at -- was he at a Lutheran school at that time?
12 A. No, that was -- he went to a Lutheran school when he
13 were in Minot, North Dakota and that was like a preschool that
14 we sent him to.
15 Q. And you were in North Dakota for about 18 months?
16 A. Uh-huh.
17 Q. And it was during this time that Mark was in a Lutheran
18 school?
19 A. Right.
20 Q. And then did you go back to Charlotte?
21 A. Yes.
22 Q. And where did you go to live in Charlotte at that time?
23 A. At 1137 Comstock.
24 Q. Why did you move to North Dakota?
25 A. It was part of Derrick's tour in the Air Force. It was
346
1 one of his tours.
2 Q. And so in North Dakota, was Mark Barnette's father there
3 or was he traveling?
4 A. No, he was there. He would have to every now and then
5 do TDY's to go to different locations, but they would maybe be a
6 month.
7 Q. And then you moved from there to where?
8 A. Then when we came back from Minot, North Dakota, we came
9 back to Charlotte.
10 Q. And what school did Mark go to when you came back to
11 Charlotte?
12 A. He went to Beverly Woods.
13 Q. And after Beverly Woods, where he did go?
14 A. He went to Barringer.
15 Q. Why did he move from that first school to the second
16 school?
17 A. I think it was a grade difference, I'm not sure. I
18 think it was the grade, when he got to a certain grade. We were
19 still living at the Comstock address, but he went to Barringer.
20 Q. And did he change schools again?
21 A. Yes.
22 Q. Where did he go?
23 A. Our lady of Consolation Catholic school.
24 Q. And why did he go there?
25 A. Because we were -- we got kind of dissatisfied with
347
1 Barringer. He had a teacher that was, we felt like, a little
2 too lenient on his studies.
3 Q. And during this period of time, were you employed?
4 A. Then I was employed.
5 Q. And what about his dad, where was he going?
6 A. I was employed with the insurance company, and his dad
7 at that time wasn't employed. When he immediately got out of
8 the Air Force, he enrolled in Central Piedmont and was taking
9 computer programming classes, but he wasn't working.
10 Q. Did you and Derrick begin to have problems in the
11 marriage during this particular time, or did it happen at some
12 other period of time?
13 A. It happened after we came back from Minot, North Dakota.
14 Q. Tell the jury about those problems, what was going on.
15 A. Everything just got really bad. We started to argue and
16 fight a lot.
17 Q. What did you fight about?
18 A. Well, I think we both started to distrust each other or
19 accuse each other of not being faithful. Ricky had started to
20 get real jealous of my friend Tina. He had introduced me to
21 her, but he started saying that I would rather be with Tina and
22 go out with Tina and party with Tina. And he just was always
23 real angry, and he would do different things, mean things.
24 Q. What kind of mean things did he do?
25 A. Well, he would take all of my things and he would throw
348
1 them out of the house.
2 Q. Were the children present during any of this time?
3 A. Yes.
4 Q. Was Mark there?
5 A. Yes.
6 Q. Did Mark see these arguments?
7 A. Probably several, I'm sure.
8 Q. Did he hear the arguments?
9 A. Yes.
10 Q. And what kind of physical arguments did you and his dad
11 have during this period of time, what kind of -- tell or
12 describe the kind of fights and arguments you had, were they
13 physical?
14 A. Yes.
15 Q. How physical were they?
16 A. Well, sometimes he would just fight me. He would drag
17 me, he would hit me.
18 Q. Okay. How old was Mark during this period of time?
19 A. He was probably --
20 Q. Speak up, please.
21 A. He was probably about eight, nine, ten, like those ages.
22 Q. Okay. Would he ever hit -- would Derrick ever hit you
23 in front of Mark?
24 A. I'm sure several times, yes.
25 Q. Did Mark ever attempt to do anything about these
349
1 arguments or fights, did he ever attempt to intervene or what
2 was he doing during this time?
3 A. He would sometimes run to try to get help. He would run
4 to a neighbor's house and try to call the police, because he
5 would never let me get to the phone.
6 Q. During this period of time, were the police ever called
7 out to your residence?
8 A. Yes.
9 Q. And where were you living during these fights?
10 A. 1137 Comstock Drive.
11 Q. And how long did these arguments and fights go on?
12 A. Oh, it was probably for a couple years before we decided
13 to separate.
14 Q. During this period of time, were you drinking alcohol?
15 A. Yes.
16 Q. Were you doing it to excess in your opinion?
17 A. Probably more than likely.
18 Q. What kind of alcohol were you drying?
19 A. I would drink beer, I would drink wine.
20 Q. Who else in the house was drinking alcoholic beverages
21 besides yourself while all of this was going on?
22 A. Well, Ricky, he drank beer. Sometimes we would
23 entertain and, you know, have friends over, have parties and
24 then we would buy, you know, liquor, vodka and different mixed
25 drinks like that, but --
350
1 Q. Did Jessie drink?
2 A. Yes, my dad used to drink.
3 Q. Did he drink Pabst Blue Ribbons?
4 A. Yes.
5 Q. How many, would he drink a lot of them?
6 A. Quite a bid.
7 Q. Would your dad get drunk?
8 A. Well, I guess he would have to for the amount that he
9 drank. He drank quite a bit.
10 Q. How about you, did you drink quite a bit to the point
11 where you would get drunk during this period of time?
12 A. Yes.
13 Q. Did the kids, Mario and Mark, see this?
14 A. I'm sure they did.
15 Q. Mario during this period of time was about four years
16 younger than Mark?
17 A. He was four years younger, yes.
18 Q. Did there come a time when you and Derrick stopped the
19 relationship?
20 A. Yes.
21 Q. What did you do, what happened?
22 A. We just -- I got tired, and I was afraid for the kids
23 because I think a lot of times when he would be angry and he
24 would discipline the kids, I think he was too excessive in his
25 discipline.
351
1 Q. Tell the jury about Derrick Barnette's discipline with
2 Mark Barnette. What kind of discipline would he give him?
3 A. He would beat him.
4 Q. Pardon me?
5 A. He would beat him.
6 Q. What would he beat him with?
7 A. A belt.
8 Q. Why would he beat him with a belt?
9 A. Well, he was real strict on him about his grades. And
10 if ever he had something that wasn't done or a grade that he
11 didn't accept or whatever, he would discipline him.
12 Q. So if Mark came home and had bad grades, his dad would
13 beat him with a belt?
14 A. Uh-huh.
15 Q. How long would the beatings go on, would they just be
16 one or two smacks or would they last longer than that?
17 A. They would last longer.
18 Q. How much longer?
19 A. I don't know, minutes. A lot of times, I would just go
20 and lock myself in the bathroom because I couldn't stand to hear
21 it.
22 Q. Okay. Now, did you and Derrick eventually separate?
23 A. Yes.
24 Q. And where were you living when you separated from
25 Derrick?
352
1 A. I moved to Wendover Apartments on Wendover Road.
2 Q. During the time that the arguments and the fights were
3 going on and the alcohol was being consumed in the family, was
4 there anybody using any drugs, illegal drugs?
5 A. Yes, myself.
6 Q. What kind of drugs did you use?
7 A. Well, my friend Tina, she was -- she smoked marijuana,
8 and she would tell me -- she would try to get me to relax and
9 calm down. So she would give -- you know, we would smoke
10 marijuana and she'd tell me it would help me relax.
11 Q. What other kind of drugs would you use?
12 A. Cocaine sometimes.
13 Q. Did you actually use cocaine?
14 A. Yeah, I did.
15 Q. Did you do it in the home where the kids were?
16 A. Well, that's where I was, sometimes.
17 Q. Were the kids, was Mark in the home when this kind of
18 thing would happen?
19 A. Well, they would probably be out playing, but sometimes,
20 they would be in the home like if she -- if we were up drinking
21 and partying at night, then they would be there.
22 Q. And when you were up there drinking and partying, were
23 you also doing cocaine while the kids were around?
24 A. Not necessarily like in front of them or anything like
25 that, but they would be in the house, I mean.
353
1 Q. Did Mark know it was going on?
2 MR. CONRAD: Objection to what he know.
3 THE COURT: Sustained.
4 BY MR. WILLIAMS::
5 Q. Do you know whether or not Mark knew what was going on?
6 A. I didn't at the time.
7 Q. Did you later find out whether he knew what was going
8 on?
9 A. Yes, I did later.
10 Q. What did you find out later about that?
11 A. I found out that he knew that I was doing drugs and
12 drinking alcohol.
13 Q. And would Mark talk to you about that, get mad at you
14 about that or say anything to you about that?
15 A. Yeah, he would get mad at me.
16 Q. What would he say to you when he'd get mad at you about
17 that?
18 A. Like if we -- this is after he got older, you know, and
19 if we'd ever get into a fuss or disagreement or anything like
20 that, he would just say, you know, that's part of the problem,
21 you and your friends and your abuse, substance abuse.
22 Q. Okay. Now, after you and Derrick Barnette separated,
23 did you eventually -- where did you go from there, did you move?
24 A. I moved to Wendover Apartments and we stayed there
25 for -- we stayed there, I think, for about two years, and
354
1 then -- well, I started to date then after we separated. We
2 separated for a year.
3 Q. Let me ask you this question and stop you just for a
4 minute, how old was Mark Barnette when you separated?
5 A. They were at that time 7 and 12.
6 Q. And you began -- did he move to another school during
7 this period of time?
8 A. Yes, during that time he went to Billingsley Road
9 Elementary school. And then it was time for his junior high, he
10 was going into junior high, so he went to Randolph Junior High
11 School.
12 Q. Now, up to this point in Mark Barnette's life, other
13 than the incident where he bit the girl on the cheek in school
14 that you've told the jury about, had he had any other kind of
15 problems with other people, women -- not women, girls or any
16 other people?
17 A. No. He was -- up to that point, he was calm, you know,
18 he was -- other than the incident where he was like two years
19 old, no.
20 Q. All right. Now, during the time that you were in the
21 Wendover Apartments, was his father living in Charlotte?
22 A. Yes.
23 Q. Did he ever come over and see the kids?
24 A. Yes, he would -- when we first separated, he would come
25 over like on a daily basis and sometimes have dinner with them,
355
1 he would say their prayers with them with them before they went
2 to bed. He spent time, I let him spend time with them.
3 Q. During this period of time when you were separated, you
4 started, you said that you started dating other men?
5 A. Uh-huh.
6 Q. And did -- was Ricky, Derrick Barnette, the father,
7 living in Charlotte during this period of time?
8 A. Yes, he was living in Charlotte.
9 Q. Were there times when you would date these men and leave
10 the children, including Mark, alone?
11 A. Well, one guy that I dated traveled a lot, and I started
12 to go out of town a lot with him. And lot of times, I would try
13 to make arrangements for Ricky or Derrick to keep the kids with
14 him. They did that a lot.
15 Q. Were there times when you would date other men and Mark
16 Barnette was left alone with nobody to look after him,
17 overnight, for instance?
18 A. Possibly, yes.
19 Q. And who were the men that you were dating during this
20 period of time, I mean, what -- just very briefly, these -- did
21 you -- did these men come into the home while the children were
22 there, while Mark was there?
23 A. Only two would come to our house when I lived in
24 Wendover. I dated a guy from Virginia, his name was Ollie
25 McArthur, and he -- whenever he was in town, he stayed at our
356
1 house.
2 Q. How many different men did you date during this period
3 of time before you moved again?
4 A. Probably about four or five.
5 Q. And was Mark Reagan one of them?
6 A. Yes.
7 Q. Was Mark Reagan involved with drugs?
8 A. They say he was.
9 Q. Was he eventually killed?
10 A. Yes.
11 Q. Was there another person by the name of Al that you
12 dated?
13 A. Yes.
14 Q. And when you dated Al, would he come into town and see
15 you, date you?
16 A. Yes.
17 Q. Did Mark Barnette know about that man?
18 A. Yes.
19 Q. And was Al married at the time?
20 A. Yes, I found out later that yes, he was.
21 Q. And who was the cabbie, the name of the fellow that you
22 dated who was a cabbie?
23 A. Tyrone, his name was Tyrone.
24 Q. And now, eventually did you leave Charlotte?
25 A. Yes, in 19 -- in 1988, '87, '88, my divorce had become
357
1 final. Ricky had -- after I started dating and everything, I
2 guess he just got real -- I don't know what happened, but he
3 requested us to do a blood test. He then at that point said
4 that --
5 Q. Where were you living when he asked you to do a blood
6 test?
7 A. In Wendover Apartments.
8 Q. Charlotte, still in Charlotte?
9 A. Uh-huh, Wendover, yeah.
10 Q. And whose idea was it for the blood test?
11 A. As far as I know, it was his.
12 Q. Did you participate in those blood tests?
13 A. Yes.
14 Q. Was that through a court-ordered blood test?
15 A. Yes.
16 Q. And there was a pending lawsuit between you and Ricky in
17 Mecklenburg County during that time over the divorce?
18 A. Yes.
19 Q. And the Court ordered that you and the children and
20 Ricky Barnette participate in blood tests, is that correct?
21 A. Yes, that's correct.
22 Q. And did the blood tests come back in that court
23 proceeding?
24 A. Yes.
25 Q. Do you know what the results were?
358
1 A. They said that the children weren't his.
2 Q. Neither one of the children were his?
3 A. That's what they said.
4 Q. After that happened, did you stay in Charlotte or did
5 you leave Charlotte?
6 A. I stayed in Charlotte for a little while longer, but at
7 that point I lost my job with the insurance company. I had
8 worked there for eight years.
9 Q. Were you fired from your job?
10 A. Yes.
11 Q. And was this about the time that the blood test business
12 was going on?
13 A. Yes.
14 Q. And did you ever discuss that with Mark about the blood
15 test?
16 A. I really didn't discuss it, because I thought it was all
17 a ploy.
18 Q. You didn't believe it?
19 A. No.
20 Q. To this day, you don't believe it, do you?
21 A. That's correct.
22 Q. Is that what you told me?
23 A. Yes, that's correct.
24 Q. Is that what you told Cindy Maxwell?
25 A. Yes, that's correct.
359
1 Q. In spite of what the blood tests show?
2 A. That's right.
3 Q. Now, did you move out of Charlotte?
4 A. After my divorce was final, my finances just weren't --
5 of course, Ricky had stopped paying child support. I had lost
6 my job which was stable. I just -- the relationships with the
7 men that I had dated and the frequency of the alcohol and the
8 drugs, I just needed to get away.
9 Q. You said that Ricky was Derrick -- I call him Derrick,
10 Mark's father, was paying child support, you said he stopped
11 paying child support?
12 A. Right.
13 Q. Is that because of the blood tests?
14 A. Yes.
15 Q. Did you ever go into court and contest that and try to
16 fight that and get him to pay child support because of what you
17 believed about the blood test?
18 A. No, I never did.
19 Q. You never pursued it?
20 A. No.
21 Q. And he never paid any child support after that?
22 A. No.
23 Q. Then where did you move?
24 A. I moved to Atlanta, Georgia.
25 Q. Before you went to Atlanta, Georgia, did you leave the
360
1 children here and you, yourself go to Atlanta?
2 A. Yes.
3 Q. How long did you stay in Atlanta before the children
4 joined you?
5 A. I left them here for about two weeks, about a week or
6 two weeks.
7 Q. And who did you leave them with?
8 A. I sent them to their -- Ms. Hattie Adams. She is
9 deceased now. That was Ricky's grandmother.
10 Q. Let me ask you this real -- when Mark, seated next to
11 me, found out about this blood test business, what was his
12 reaction?
13 A. He was very angry. He was very upset, and he was very
14 angry.
15 Q. What did you do down in Atlanta, could you tell the jury
16 briefly where you went to live and who you lived with and where
17 Mark went to school and what was going on in Atlanta?
18 A. I went to Atlanta. My baby sister Sheila, she had gone
19 to Atlanta on a college scholarship and at this point, she was
20 working. And so things just didn't seem to be going right, and
21 I would call her and she said, why don't you just pack up
22 everything and just come down here, she said, that you could
23 find a job, we will be together and you can work things out.
24 Q. Now, did Mark want to go to Atlanta?
25 A. I don't think he did.
361
1 Q. And was he in school here?
2 A. He was in school here.
3 Q. So you moved to Atlanta, and did you have to put him in
4 another school down there or what did you do?
5 A. Yes, I enrolled him in another school in Atlanta.
6 Q. How many schools did he to in Atlanta?
7 A. Well, I enrolled him in one school that he didn't
8 attend, and he went to a middle school there and then high
9 school.
10 Q. Okay. And did Mario go down there with you?
11 A. Yes.
12 Q. And where did you live, how many different places did
13 you live in the Atlanta area?
14 A. Well, when I first moved there, my sister -- we moved in
15 with my sister in an apartment that was like in Gwinnett County,
16 upper end of Atlanta, we stayed there. She was in the process
17 of having a home built. So when the home was completed, we
18 moved from there to Lithonia, Stone Mountain.
19 Q. How old was Mark when you were there?
20 A. At this time, he was probably about 13, 14.
21 Q. Did he go to Lithonia High School?
22 A. Yes.
23 Q. What did he do there, did he participate in any sports
24 or do anything?
25 A. He started out running track. We had to -- I had
362
1 to -- one of his counselors, I had to have encourage him because
2 he felt really out of place. He had ran track at Randolph
3 Junior High and he felt comfortable because he knew everybody,
4 and he said going to a new school, nobody would really -- he
5 didn't feel comfortable, he didn't want to do it. And so I got
6 one of his counselors to encourage him.
7 Q. Let me ask you this: When you got down to Lithonia
8 tone -- strike that. Prior to him moving, y'all moving down to
9 Lithonia in the Atlanta area, had Mark had any trouble with the
10 law?
11 A. No.
12 Q. Had he had any other conflicts with other people or
13 problems with other people before moving down there?
14 A. No.
15 Q. Once you moved down there, did he meet any girlfriends?
16 A. Yes.
17 Q. Who was the girlfriend he first got involved with?
18 A. Her name was Sheila Sullivan.
19 Q. And Mark was about what, 14?
20 A. He was about 14.
21 Q. And how did that relationship go?
22 A. They basically saw each other at school. I mean, he was
23 14, so it was kind of like a school and writing notes and
24 letters back and forth to each other. He would visit her home,
25 because sometimes I would drive him over. The neighborhood was
363
1 too far to walk from the neighborhood we lived in, so sometimes
2 even myself or my sister might, you know, drive him over or pick
3 him up if he went after school.
4 Q. Did they get along well or do you know?
5 A. I don't really know. They seemed to get along okay up
6 until one weekend, was my first knowledge that he was having
7 some problems and I guess they had maybe broke up or something
8 such as that, and --
9 Q. What happened?
10 A. My sister and I went to -- went into Lithonia to go to
11 the grocery store or something like that, and when we came back,
12 we heard all of these sirens. And I was -- we were talking in
13 the car and we were saying, you know, every time you hear
14 sirens, your heart just drops because you just think that they
15 are going to your house. And they were going in the same
16 direction we were and we were like, they turned down the same
17 street. So we started really getting nervous, and sure enough,
18 when we pulled up to the house they were at the house.
19 Q. Why were they at your house?
20 A. Because Mark had taken some pills.
21 Q. What kind of pills had he taken?
22 A. I don't remember what kind of pills they were, but he
23 had gotten them from my sister's drawer. And --
24 Q. Did you talk to Mark about that and find out why he had
25 done that?
364
1 A. Yes.
2 Q. What was it about?
3 A. Because he and the girl Sheila had broke up or something
4 like that.
5 Q. Okay. And did the ambulance treat him there?
6 A. Yeah, they treated him there. Whatever it was he took
7 wasn't anything really strong. It made him throw up. And then
8 after they got his stomach cleaned out, he just stayed home,
9 they didn't take him to the hospital.
10 Q. Didn't go to the hospital?
11 A. No.
12 Q. After that incident, was there any other
13 incident -- strike that question. During this time, was Mark
14 involved with any kind of extracurricular activities, dancing or
15 clubs or any of that kind of activity, what was going on there?
16 A. He had been asked -- there was a young teenage club that
17 was there in Lithonia, and they had seen Mark dance or somebody
18 had seen or talked to him about how well Mark danced. And so
19 the owner had asked Mark to choreograph different dance routines
20 for a group.
21 Q. While this was going on, did something happen to Mark,
22 did anybody beat him up or anything?
23 MR. CONRAD: Object to the leading.
24 MR. WILLIAMS: Well, Rules of Evidence don't apply, Your
25 Honor.
365
1 THE COURT: Overruled, go ahead.
2 BY MR. WILLIAMS:
3 Q. Did something happen to Mark?
4 A. Yes.
5 Q. What happened, tell the jury about that?
6 A. He would go after school to this location and help
7 choreograph these dance routines. And one day, when he was on
8 his way walking home, three guys pulled up in a car and they
9 jumped on him and they beat him up really bad.
10 Q. How do you know, did you see him?
11 A. Yes, I saw him.
12 Q. What did you see?
13 A. How I know is that I was supposed to go pick him up
14 afterwards, and I got a phone call, I think we had stopped --
15 Q. Where did you see him?
16 A. Where I saw him was when I got to the club. They had
17 kicked him in his face and the inside of his mouth was torn, you
18 know, and they --
19 Q. Did you take him to the hospital?
20 A. Yes.
21 Q. How long did he stay in the hospital, if you remember
22 back then?
23 A. They just kept him like all day for observation, x-rayed
24 him.
25 Q. Did that hospital or wherever he went,, does that exist
366
1 today?
2 A. It doesn't exist anymore today.
3 Q. That medical facility?
4 A. Right. It was the Doctors Hospital off of Lawrenceville
5 Highway in Tucker, Georgia.
6 Q. Did that fight have anything to do with the girlfriend?
7 A. Yes.
8 Q. What did it have to do with that?
9 A. The same girlfriend, Sheila, it was -- the way I
10 understood it then was one was an old boyfriend --
11 MR. CONRAD: Objection.
12 THE COURT: Sustained, that's getting a little bit far
13 afield here.
14 BY MR. WILLIAMS:
15 Q. What happened to Mark after this incident, how did he --
16 did you see any kind of change in him from that point?
17 A. He seemed to change.
18 Q. How did he change?
19 A. He stopped -- well, he started having problems at school
20 as far as not attending his school. He was cutting classes and
21 not being at school without my knowledge until then I would hear
22 from school that he had been absent for so many days.
23 Q. Was it during this time that he met Tasha?
24 A. Yes, that's what he met Tasha.
25 Q. Tasha Heard?
367
1 A. Tasha Heard.
2 Q. And she became the mother of his children?
3 A. Yes.
4 Q. And just briefly during that period of time, did Mark
5 stay with you or did he move to Newnan, Georgia or what
6 happened, briefly?
7 A. He stayed with me, he stayed with me, and after he met
8 Tasha, he would start leaving home a lot, not be at home as
9 much. He just seemed angry all the time, but -- and we didn't
10 get along as well.
11 Q. Who?
12 A. Mark and myself.
13 Q. So you and Mark began to develop some problems in
14 communication?
15 A. Uh-huh.
16 Q. What were those problems about?
17 A. Because I wanted him to be at home and he -- I found out
18 he wasn't going to school for one, and that presented a problem,
19 and then he was always defensive with me if I asked him about
20 it.
21 Q. During this period of time, did the police ever come to
22 your door?
23 A. Yes.
24 Q. Where were you living?
25 A. I was living then in Decatur, Hillendale Drive.
368
1 Q. Who was living there with you?
2 A. Myself, Mario and Mark.
3 Q. What happened when the police came to your door?
4 A. They came to my door one night and wanted to know if
5 that was the address where Mark lived, and I said --
6 Q. How old was Mark at this time?
7 A. He was about 15, 16.
8 Q. What were the police there for?
9 A. They said that someone had identified Mark as being --
10 they had seen him near an apartment building, and it was real
11 late at night and he seemed like a suspicious figure.
12 Q. Okay. Did you ever do anything or go out and look for
13 him?
14 A. No, I didn't go out and look for him. I let the police
15 come in and look over the apartment and everything to see, you
16 know, if they saw anything that might give them reason why he
17 was -- I explained to them the fact that he started to come and
18 go more, being gone more than anything.
19 Q. Did you ever find Mark, where he was?
20 A. Yeah, he came back.
21 Q. Did you ever talk to him about this?
22 A. Yeah, I asked him, but he was -- he started to be closed
23 off. We didn't communicate anymore like we used to.
24 Q. What happened at school during this period of time, was
25 Mark continuing to have excessive absences from school?
369
1 A. He was continuing to have -- well, he wasn't going. And
2 then so the one -- I think it was after Christmas, he had to be
3 out while he healed from where those guys jumped him. And we
4 signed warrants, of course, and everything, because he was still
5 under age.
6 Q. Were there any -- did he get in any kind of fights with
7 anybody?
8 A. Then when I made him -- I took him to school and made
9 him go to school. And his brother Mario had given him a
10 baseball cap, and they called me and, you know, told me I needed
11 to come get him, he had gotten into a fight. And from what he
12 told me, there was another kid that took the baseball cap and
13 was giving him a hard time about it and they got into a
14 pretty -- a bad fight in the boys bathroom.
15 Q. Did -- what was going on between he and Tasha during
16 this period of time, were they seeing each other?
17 A. They were seeing each other, and I guess he was spending
18 a lot of time with her is why he was not at home.
19 Q. Were you drinking alcohol during this period of time?
20 A. During that period of time, the job I worked, I was --
21 and I didn't have transportation, so I used the MARTA. So I was
22 gone a long time as far as my work day was a long day. I mean,
23 I still drink, but I wasn't excessive like what I had been
24 through before I left Charlotte.
25 Q. Did Mark ever leave and move out of town during this
370
1 period of time?
2 A. When Angelica was born, Angelica was born, he still
3 lived at home with me, but he soon wanted to get his own
4 apartment in Newnan, Georgia.
5 Q. How was Mark reacting to the fact that he was going to
6 have a child?
7 A. He was excited.
8 Q. How, I mean, what did he do, do you know, did he try to
9 do anything to help Tasha?
10 A. Yeah, he -- she still lived with her mother, but I
11 remember he -- they painted the bedroom and he went out and
12 bought the crib and different things, you know, that he could to
13 get prepared. And when Angelica was born, he was just real
14 excited. And he would take care of her, he would bring her over
15 to my sister's house and I would always offer to do something,
16 but he did it all. He would feed her, he would bathe her.
17 Q. Did you ever know -- strike that question. Did you ever
18 talk to Tasha or Mark about any difficulties he was having with
19 Tasha?
20 A. Not during that time. I don't think they had any
21 difficulties during that time.
22 Q. Did Tasha ever tell you that Mark was abusive to her?
23 A. No, not during that time.
24 Q. I came -- I've been out to your house on West Boulevard
25 a number of times to go over personal items and things, is that
371
1 correct?
2 MR. CONRAD: Objection to the relevance.
3 MR. WILLIAMS: Well, I'm going to make it relevant, Your
4 Honor.
5 THE COURT: All right, sir, overruled.
6 BY MR. WILLIAMS:
7 Q. During the times that I would come over to your home to
8 look at various items, did I ask you about a newspaper when I
9 was over there?
10 A. Yes, a newspaper we found in Mark's things.
11 Q. Did I ask you about that newspaper?
12 A. Yes.
13 MR. WILLIAMS: May I approach the witness, Your Honor?
14 THE COURT: Yes, sir.
15 BY MR. WILLIAMS:
16 Q. I show you Defendant's Exhibit Number 40, and ask you if
17 that was a newspaper that I asked you about that I found, that
18 you and I talked about in the home?
19 A. Yes.
20 Q. And what is the date of that photograph?
21 A. September 29th, 1990.
22 Q. What did you tell me about this newspaper that was in
23 your home?
24 A. That it was the day that Angelica was born.
25 Q. Who had purchased this paper?
372
1 A. Mark.
2 Q. Why, do you know?
3 A. Because he wanted to keep it as a keepsake for her for
4 the day's events of the day she was born.
5 Q. Do you think he was a good father to those children, or
6 did you have any opinion about that after time went by?
7 A. I thought he was an excellent father to Angelica when
8 she was first born. And I think after little Mark was born, it
9 was during the time that he and Tasha had began to have problems
10 of whatever, and then they were separated from each other.
11 Q. Did you know about any problems Mark had in Newnan with
12 the police or that involved the police?
13 A. Yes.
14 Q. And what did he tell you about the problems down there?
15 A. Well, he moved to Newnan, got his own apartment because
16 he wanted to provide a place for Tasha and the kids to live, and
17 he worked two jobs. He worked at Arby's and he worked at a
18 Blockbuster, so he was always, you know, working the two jobs to
19 try to make his ends meet and provide for them. And then he had
20 a run-in with some guys one night. They tried -- I don't know
21 how many, but there were several guys and they surrounded him,
22 and one night he was on his way home.
23 Q. Did Mark tell you that he shot somebody?
24 A. Yes.
25 Q. What did you think about, during that period of time in
373
1 Mark's life, as his mother as to what was going on with him,
2 whether there was a problem?
3 A. Actually, I felt like that when those three guys had
4 jumped on him, that maybe they had hurt him, you know. They had
5 kicked him in his ribs and his mouth was torn, but when I took
6 him to the hospital and they examined him, I guess for all
7 physical purpose he was okay to go home, but he started to do
8 different things. And like I say, our relationship started to
9 go down and then --
10 Q. Why did your relationship with Mark start to go down
11 during this period of time, did it have anything to do with
12 drinking and drugs?
13 A. No. At this point, he just seemed to be mentally
14 different.
15 Q. Was he angry?
16 A. Yes, he seemed angry.
17 Q. Was he angry at you?
18 A. He would be angry at everybody. I mean, he just seemed
19 to -- at me, yes, at me, but just anger in itself.
20 Q. Did you know about the incident where he used a coat
21 hanger on Crystal Dennis's children?
22 A. Well -- yes, he -- they -- he had -- after he and Tasha
23 split up, he started to go with this young lady named Crystal
24 who already had some children. And I know that he kept her
25 children during the day, and he had told me that they were bad,
374
1 but that one time he had spanked them or hit them. And the next
2 thing I knew, they were arresting him for cruelty to children.
3 Q. Did you ever talk to Mark about that as his mother?
4 A. Yes.
5 Q. What did you talk about?
6 A. I just asked him why did he spank those kids, because
7 they weren't his kids, and he said that he had to care for them
8 during the day while she was working, or she had given him
9 permission to discipline them when they were in his care.
10 Q. How old was Mark during this time?
11 A. He was probably then about 18.
12 Q. Were you working?
13 A. Yes.
14 Q. Where were you living?
15 A. I was living in Roswell, Sandy Springs.
16 Q. Where were you working?
17 A. I was working for a placement service in Atlanta.
18 Q. And who was living in the home at that time?
19 A. Myself and Mario.
20 Q. Did you talk to Mark about getting any kind of help or
21 assistance for him with regard to these problems that he was
22 getting into?
23 A. No, not at that time.
24 Q. Did you ever take him to a doctor?
25 A. He had gone to seek some counseling, I think, himself.
375
1 Q. Where was that?
2 A. In Georgia, Newnan. I believe it was in Newnan, Georgia
3 he had gone just to see a doctor or something.
4 Q. Do you know that as a fact?
5 A. No, I don't know that. I think he had mentioned to me
6 that he wanted -- that he was going to do that because he wanted
7 to straighten things out. I think he was enrolling back into a
8 high school that was somewhere down in Newnan, because he had
9 seen his transcript of grades and I told him it didn't make
10 sense because he had like A's and B's.
11 Q. During this time, did -- after the Crystal Dennis
12 incident, did y'all stay in Georgia or did you move back to
13 Charlotte?
14 A. During that time, I was making plans to move back to
15 Charlotte.
16 Q. Where was your father, Jessie Cooper, at this time?
17 A. He was at our home here in Charlotte.
18 Q. And when you came back to Charlotte, where did you live?
19 A. I moved into the house that we live in now.
20 Q. And who moved in there with you?
21 A. My father, Mario, and then I had sent for Mark to come
22 from Atlanta.
23 Q. Was it during this time that you got pregnant with
24 Mario?
25 A. No, John McAllister.
376
1 Q. I mean, with, excuse me, with John?
2 A. I was pregnant with him when I moved from Atlanta.
3 Q. You said the father of that child is who?
4 A. John West.
5 Q. Where did you meet John West?
6 A. In Atlanta.
7 Q. Did y'all move back to Charlotte after you got pregnant?
8 A. Yes.
9 Q. And you lived at the house on West Boulevard?
10 A. Yes.
11 Q. Did Mark work when you came back to Charlotte?
12 A. Yes.
13 Q. Where did he work?
14 A. When he first came back, he worked at a Pizza Hut on
15 Freedom Drive.
16 Q. After that, where did he work?
17 A. Then after that --
18 Q. Did he ever work in a temporary service?
19 A. Yes, that's right, yeah, he worked for Selectron through
20 Temp World.
21 Q. And where were you working?
22 A. During that time, I was working at Marriott.
23 Q. What was -- who was in the house during this period of
24 time, who was living in the home on West Boulevard during this
25 period of time when you moved back to Charlotte?
377
1 A. Myself, my father, I had at that point let my friend
2 Tina move in, she rented a room from me, and Mario. John hadn't
3 come from Atlanta at this time.
4 Q. During this period of time when you came back, was there
5 alcohol being consumed in the home?
6 A. Yes.
7 Q. A lot of it, a lot of drinking going on?
8 A. Yes, probably.
9 Q. Probably so. By whom?
10 A. Well, at that point, my dad drank a lot of Pabst Blue
11 Ribbon.
12 Q. Who else?
13 A. And I drank beer with him.
14 Q. How about cocaine?
15 A. No, not during that time.
16 Q. How about marijuana?
17 A. My friend Tina, she still smoked marijuana.
18 Q. How about you?
19 A. No.
20 Q. But anyway, Tina was living there with you?
21 A. Uh-huh.
22 Q. And what year was that?
23 A. That was in like '94, because I came back in '93, so
24 like '94.
25 Q. How long did Tina stay in that home?
378
1 A. She stayed, the first time she stayed about six months.
2 Then she moved out. She ran into some problems and I let her
3 come back.
4 Q. During this period of time, did the police come out to
5 your house at 3413 West Boulevard and answer calls out there?
6 A. Yes, several times.
7 Q. Tell the jury about that, what was going on in the home?
8 A. During that time, Mark had come from Atlanta and he was
9 then going out with this young lady named Alesha Chambers, I
10 think is her name. There were just problems, constant
11 problems --
12 Q. Tell the jury --
13 A. Most of it was in my opinion her mother didn't -- it
14 started out she liked Mark, she would pick up Alesha, we would
15 go out and eat pizza together and whatnot. And then all of a
16 sudden, well, from what Mark told me, she had a boyfriend that
17 came home from prison, I don't know that to be a fact, but at
18 that point they would always call the police and say that Mark
19 had -- I think one time they said Mark had kidnapped Alesha from
20 her apartment. Well, Alesha had called Mark and told Mark to
21 come pick her up.
22 Q. Let me stop you here. Other than the police coming out
23 there with regard to the Alesha Chambers incident, or incidents,
24 what other reasons did the police come out there to your home?
25 A. They came out because I had a second or third cousin
379
1 that was -- he caused trouble. He had stolen the tags off of a
2 friend's vehicle.
3 Q. What was this person's name?
4 A. The person's vehicle or the person?
5 Q. What was this person's name?
6 A. LaDon Barbour.
7 Q. And why would the police come out there?
8 A. For various things. He was -- he threatened my family
9 and my house.
10 Q. Where did LaDon Barbour in relation to your house where
11 you were living with the children, Mark and Mario, where did
12 LaDon Barbour live in relation to that house?
13 A. He lived in my grandmother's old house that sits behind
14 my house about 100 yards off to the side.
15 Q. So the picture that you showed the jury with the
16 trailer, the old rusty trailer in the back yard, was that of the
17 house that LaDon Barbour lived in sort of behind and to the side
18 of that trailer back in the trees?
19 A. Yes.
20 Q. Did something happen on January 25, 1995 there at your
21 home?
22 A. I think that was date that he broke into my house and
23 shot my son.
24 Q. And when you say your son, which son?
25 A. Mark.
380
1 Q. Where was Mark?
2 A. He was in the back bedroom asleep because he had worked
3 third shift.
4 Q. Were you there when this happened?
5 A. No.
6 Q. Was your dad, Jessie Cooper, there when it happened?
7 A. Yes.
8 Q. And do you know where Mark was shot?
9 A. He was shot in his right hand and his -- the bullet went
10 through his hand into his right thigh and shattered his femur.
11 Q. Did he go to the hospital?
12 A. Yes.
13 Q. How long did Mark stay in the hospital?
14 A. He was in the hospital for maybe about ten days or more.
15 Q. And what happened when Mark got out of the hospital, did
16 he quickly recover or was he able to get about and do things, or
17 what happened to him?
18 A. Well, during that time, he was making plans to move to
19 Roanoke. He didn't get around very good, because they had to
20 fit a rod into his leg and he had to adjust to that. He had
21 to -- because it was an adjustment, so he kind of didn't walk at
22 first, I guess normal. He had to walk on a crutch because he
23 had no ability in his right arm, so they had made a special
24 crutch where he had to rest his arm.
25 Q. You say he moved to Roanoke. Was this the time that he
381
1 had -- after he had met Robin Williams?
2 A. Yes.
3 Q. And he had been dating Robin Williams and going back and
4 forth to Roanoke?
5 A. Yes.
6 THE COURT: Mr. Williams, is this a good stopping
7 place?
8 MR. WILLIAMS: Yes.
9 THE COURT: Members of the jury, let's take a recess at
10 this time. Do not discuss the case among yourselves while
11 you're out, and I'm going to see if I can warm this courtroom up
12 somehow or another.
13 (The jury left the courtroom.)
14 THE COURT: Recess until 11:25.
15 (Brief recess.)
16 THE COURT: Call the jury.
17 (The jury returned to the courtroom.)
18 THE COURT: Members of the jury, I hope it warms up in
19 here. The maintenance man tells me he's got it working now and
20 we're supposed to be getting some heat. But if we don't get any
21 heat, truthfully, I'm just going to have to recess court,
22 because I know y'all are freezing and I'm sorry about that.
23 All right, go ahead.
24 MR. WILLIAMS: Thank you, Judge Potter.
25 BY MR. WILLIAMS:
382
1 Q. Before we move to Roanoke and some questioning, does
2 Mark have any kind of talents?
3 A. Mark is an excellent artist. He is a very good artist.
4 Q. In the sense of what, painting, drawing?
5 A. Drawings, drawings.
6 Q. Was there ever an attempt at entering him into any kind
7 of an art school anywhere?
8 A. Yes, I had spoke to him about going into, because they
9 had so many art schools in Atlanta; and I always tried to
10 encourage him to get into one of those art schools, because he
11 has just a natural talent.
12 Q. Did he apply or what happened to that?
13 A. No, he didn't. I guess all of the negative things, you
14 know, after the fight with those boys or those boys jumping him,
15 he was just getting to the age where he would have been able to
16 do any of those things and he never did.
17 Q. And, of course, the various things happened down in
18 Newnan that we know about. You talked about him being shot in
19 January of 1995, and this was during the period of time after he
20 had met Robin Williams?
21 A. Yes.
22 Q. And were you at that time as I understand it living at
23 3413 West Boulevard?
24 A. Yes.
25 Q. And did Mark begin to go back and forth between
383
1 Charlotte and Roanoke to see Robin?
2 A. Yes.
3 Q. Did you ever meet her?
4 A. Yes. She came to our home at 3413 West Boulevard, and I
5 met her on several occasions.
6 Q. And when Mark first met her, would you describe this as,
7 based upon what you observed, as a relationship that he was
8 heavily involved in?
9 A. Yes, I would say so.
10 Q. He then decided to move to Roanoke?
11 A. To Virginia.
12 Q. Did you know anything about any of the problems they
13 were having in Roanoke, in other words, would Mark call you or
14 you talk to Robin or Mark about the problems that they were
15 having?
16 A. No, they never let on that there were problems. The
17 first time that I had any knowledge that they were having any
18 problems was when Mark -- well, it was like a couple of days
19 before I moved him, had him move back to Charlotte.
20 Q. During this same time, was Tina Davis living in the
21 home?
22 A. No, not at that time.
23 Q. Okay. When did Tina Davis move back in the home, was it
24 in 1995 or 1996?
25 A. I believe it was in '95. I had let her come because she
384
1 had run into some problems, but I didn't let her stay very
2 long. It was very bad.
3 Q. In 1996, did Tina -- in the spring and summer of 1996,
4 was Tina Davis living there?
5 A. No, not '96, I don't believe, I think it was in --
6 Q. I mean '96 when all of this happened?
7 A. She was -- let me think, Mable that was the second time,
8 because I know at one point I had let her come back to stay at
9 my house because she was experiencing some problems. But she
10 wasn't living in the house when I moved Mark back to the house,
11 she had just moved out of my house.
12 Q. When you say Mark came back to the house, are you
13 talking about in April of 1996 when he and Robin broke up?
14 A. Yes, right.
15 Q. Tell the jury, each member of the jury how Mark acted
16 when he came back from Roanoke in April of 1996.
17 A. He was real withdrawn. He wanted that relationship to
18 work. It was all he ever talked about. That's the first time
19 that I knew that they had had any problems. He had come home.
20 I worked third shift, so I was always gone 11:00 to 7:00. And I
21 came in one morning and he was there, and I said, why are you
22 here? I saw Robin's car and I said, where is Robin, and he
23 said, Robin and I had an argument. And that was the first
24 time. I never knew any previously problems that they had,
25 but --
385
1 Q. Now, what I'm asking you is, after he moved back to
2 Charlotte?
3 A. Uh-huh.
4 Q. He moved back in a rental truck, is that correct?
5 A. Right.
6 Q. You knew he moved back in a rental truck?
7 A. Yes, I reserved the rental truck for him and I sent my
8 father, Jessie Cooper, and his cousin Amad to go with him to get
9 his furniture and his belongings to come home.
10 Q. What I'm asking is to tell the jury how Mark acted after
11 he came back and stayed there at 3413 West Boulevard.
12 A. He started out -- well, of course, he was real
13 withdrawn, like away from the family. We -- that was unusual,
14 because Mark has always been such like the -- not the center of
15 attention, but he was just so well rounded in the family. I
16 mean, the younger kids looked up to Mark. He was always the
17 cook and, you know, playing with the kids and everything and
18 just kind of intermingling, just a part of the family. But he
19 wasn't like that. He was -- he moved into the loft upstairs of
20 the house, and he had made -- it doesn't have a door, so it's a
21 stairway of about 13 steps and no door like this, but he had
22 made a sign that said, privacy, please, knock.
23 Q. So did he stay to himself?
24 A. Yeah, he pretty much stayed to himself.
25 Q. Would he talk to other members of the family, can you
386
1 just tell us how he acted?
2 A. Very little, not like the Mark that we were used to, not
3 the jubilant, happy go lucky, fun-loving Mark, he wasn't.
4 Q. What did he do?
5 A. He would like, at meals, he would just come downstairs
6 and fix his meals and just go back upstairs.
7 Q. Did he appear to be depressed to you?
8 A. He seemed to be real depressed. He just walked around
9 with his head hanging down. He -- I remember one night I heard
10 him on a phone conversation where he was just crying,
11 just -- and I told him if he was, if he -- if talking to Robin
12 was going to make him that emotional, then I wish he wouldn't
13 make the call.
14 Q. So did you know from the conversations that he had when
15 he was crying that he was talking with Robin?
16 A. Uh-huh.
17 Q. How did you know that?
18 A. Because I could hear him saying her name.
19 Q. How many times after he came back would he be involved
20 in these conversations, once, twice, more than once, do you
21 know?
22 A. Well, he would have to buy --
23 Q. Just how many times?
24 A. I would say twice or more.
25 Q. Were they emotional conversations?
387
1 A. Always emotional, always very emotional.
2 Q. How did you find out about the fire incident?
3 A. I got a phone call that asked me where was Mark, and I
4 said, I think he is upstairs, because he stayed upstairs to
5 himself all the time. And it was his friend Steve, and he
6 called and he said, Mark started a fire at Robin's apartment.
7 Q. Was this Steve Austin?
8 A. Steve Austin. And when he told me that, I said, that's
9 not possible, I said, because Mark is upstairs. That's just
10 what I thought.
11 Q. What did you do, did you go upstairs?
12 A. I went upstairs and he wasn't there.
13 Q. Did you see Mark after that?
14 A. Yes.
15 Q. When did he come?
16 A. That morning -- that -- he came back home and I asked
17 him about it -- or he came into my room, I'm sorry, because I
18 work third shift, so I sleep mostly, I would at that time sleep
19 mostly during the day. So I don't know exactly when he came
20 back, but he came back to the house and came in and woke me up
21 and said he wanted to talk to me.
22 Q. And did he tell you what had happened?
23 A. And he told me what had happened.
24 Q. What did you do about that, did you call the police
25 or --
388
1 A. No, I didn't call the police. He said that he was going
2 to turn himself in.
3 Q. Where was he living during this period of time?
4 A. At my house.
5 Q. 3413 West Boulevard?
6 A. Uh-huh.
7 Q. Did he -- from the time that the fire incident happened
8 to the time that Robin Williams and Donald Lee Allen were
9 killed, did Mark live at 3413 West Boulevard?
10 A. Yes.
11 Q. How would Mark act after he told you that, was he --
12 what was going on then, was he out trying to find a job, was he
13 sitting there in the house or what was he doing?
14 A. After he told me that, which at first I didn't believe
15 him, I thought it was because he was staying upstairs so much, I
16 didn't know if he was just dreaming it up, then I would leave.
17 And when I would pull into the driveway, and my driveway is
18 long, when I would pull in the driveway, he would always be
19 sitting down at the front of the driveway on a bucket turned
20 upside down. And I asked him what was he doing, and he said,
21 they are coming to get me, he said, I'm waiting for them to get
22 here.
23 Q. How often would you see him sitting down there?
24 A. He sat there about every day for -- every day I would
25 pull up, he would be sitting there dressed in a jacket and the
389
1 cap on a paint bucket.
2 Q. Why didn't you call the police, do you know?
3 A. I don't know. I think at the time he told me that this
4 happened, but I didn't want to believe that he had done anything
5 like that. And I actually thought at that time that maybe Mark
6 was experiencing something in his head that wasn't real.
7 Q. What happened after that?
8 A. Then the next -- I went to my job one night and the
9 human resources director from my job came and told me that there
10 were some men that wanted to talk to me.
11 Q. What kind of men?
12 A. They were FBI agents.
13 Q. Was this in June?
14 A. Yes.
15 Q. Did the FBI ask you to do some things for them?
16 A. They came to my job.
17 Q. Where were you working then?
18 A. I was working at the Westin doing night audit.
19 Q. And what did they want you to do?
20 A. They wanted to know if I knew where Mark was. And he
21 had, when I -- I worked 11:00 to 7:00, so when I went to work,
22 he was sitting there in the den and he hugged me. He hugged me
23 and he told me he loved me, and don't work too hard, he said,
24 you look awfully nice tonight.
25 Q. Was that before you found out that he went up to --
390
1 A. Yes. And he said, I will see you in the morning.
2 That's what he said.
3 Q. How did you find out what had happened to Donald Allen
4 and Robin Williams?
5 A. Well, the agents came to my job and told me, and then
6 they drove me from my job back to my house. And I told them
7 that I didn't know where Mark was, and I offered them to look
8 through my house.
9 Q. Did Mark eventually call you?
10 A. Yes, he eventually called me.
11 Q. Did he come home?
12 A. He called me because the FBI agents said that they
13 didn't know where he was and they just wanted to -- they didn't
14 know how dangerous he was to himself and they needed me to help
15 to get him home.
16 Q. Did he come home?
17 A. Yes, he came home.
18 Q. Did the police or the FBI put a tap on your phone or a
19 trace on your phone?
20 A. Yes.
21 Q. Did you cooperate and tell them that they could do that?
22 A. Yes.
23 Q. You wanted your son to come home, didn't you?
24 A. Yes.
25 Q. And when he came home, were the police there when he
391
1 came home?
2 A. He came to my house in the night. I had called
3 Detective Womble, I think was his name, and told him I had heard
4 from him and he told me he was coming home.
5 Q. So when Mark called you, you called the police and told
6 them that your son -- you had heard from your son and he was
7 coming home?
8 A. Yes, and he wanted to turn himself in and but he wanted
9 to come home and he didn't want anybody to hurt him, he just
10 wanted to see me before he turned himself in.
11 Q. Did you have any idea that Mark was going to do
12 something like this?
13 A. (Shakes head.) No, no.
14 Q. Do you have any idea why he did it?
15 MR. CONRAD: Objection.
16 THE COURT: Sustained.
17 THE WITNESS: I have no idea.
18 MR. WILLIAMS: All right.
19 BY MR. WILLIAMS:
20 Q. Did the FBI come and get Mark?
21 A. Yes.
22 MR. WILLIAMS: I believe that's all the questions I have
23 at this time.
24 THE COURT: Cross?
25 MR. CONRAD: Thank you, Your Honor.
392
1 CROSS-EXAMINATION
2 BY MR. CONRAD:
3 Q. Ms. Barnette, let me turn your attention back to the
4 Newnan, Georgia days, and I will ask you exactly what your son
5 told you about the incident where he beat Crystal Dennis's two
6 children. What did he tell you about that incident?
7 A. He basically just told me that he had spanked the kids
8 because they were bad.
9 Q. And what did he tell you about what they were doing that
10 was bad?
11 A. It was -- if I remember correctly, they were touching
12 each other or playing in a manner that was like not proper
13 touching.
14 Q. This was Crystal Dennis' two-year-old and her
15 five-year-old?
16 A. Yes, that could possibly be their ages.
17 Q. Did he tell you that it was Crystal Dennis's mother's
18 fault that he got in trouble for that?
19 A. He said that it was Crystal's mother that had called the
20 police.
21 Q. Now, what did he tell you about kicking Tasha Heard out
22 of the apartment so that Crystal Dennis could live with him,
23 what did he tell you about that?
24 A. No, that never occurred. Tasha stayed in one
25 apartment. She never -- Crystal never moved into that
393
1 apartment.
2 Q. Well, you do know that your son stopped living with
3 Tasha and started living with Crystal?
4 A. Yes, I do know that.
5 Q. And that was when the youngest of the two children was
6 about two months old?
7 A. Uh-huh. Mark -- he was still young. I don't know his
8 exact age, but he was still young.
9 Q. Could it have been as early as two months?
10 A. I guess it could have been.
11 Q. Now, what did the defendant tell you about the
12 kidnapping incident involving Alesha Chambers?
13 A. With Alesha Chambers and that incident, she had
14 called --
15 Q. Ms. Barnette, I'm asking --
16 MR. LAUGHRUN: Objection, Judge, he asked her what --
17 MR. CONRAD: I'm asking you what --
18 THE COURT: Let him ask the question.
19 BY MR. CONRAD:
20 Q. I'm asking you what the defendant told you about it.
21 A. He told me that Alesha had called him and he had gone
22 over to pick her up. He picked his brother up from his job
23 at -- I can't think of the name of it, it's no longer there, but
24 on Wilkinson Boulevard. He had picked Mario up, and then he
25 went to Alesha's apartment or house or wherever it was that she
394
1 stayed.
2 Q. Did he tell you anything else about that?
3 A. Not until it all started to come to court.
4 Q. What did he tell you about holding a knife to her throat
5 three days later?
6 A. I don't know anything about that.
7 Q. Now, I think you testified here today that you learned
8 about the fire bombing when your son came into your room and
9 woke you up and told you about?
10 A. No, I got a phone call from Steve Austin.
11 Q. Okay, that's right. Was that that very night?
12 A. No, it wasn't that night, it was -- when Steve called
13 me, it was during the day and I had come in from work. I had
14 been asleep, I can't say exactly what day, I'm sorry, but I know
15 that it was after I had slept for a while and then woke up to a
16 phone call.
17 Q. You worked the 11:00 to 7:00 o'clock shift?
18 A. Uh-huh.
19 Q. And how long after the fire bombing incident was it that
20 Steve Austin called you?
21 A. Could have been the next day or so, because I think
22 he -- how he found out was a call from Virginia and then he
23 called me.
24 Q. Was the call from Steve Austin before or after your son
25 came in your bedroom and told you about it?
395
1 A. It was before.
2 Q. And how much before?
3 A. It was probably a day or two, three days before.
4 Q. Could it have been up to three days before?
5 A. It was about two or three days before Mark talked to me.
6 Q. So there was a period of time after the fire bombing up
7 to three days before you saw your son again?
8 A. No, I had seen him, he just didn't say anything to me.
9 Q. So there was a fire bombing incident, a period of time
10 where you saw your son, and then sometime after that, he came in
11 and talked to you about it?
12 A. And talked to me, uh-huh.
13 Q. And the time he talked to you about it was, you think,
14 up to three days afterwards?
15 A. Yeah.
16 Q. And how many times in that three-day period did you see
17 your son?
18 A. He was there at home. I'd probably just see him in
19 passing, because he stayed upstairs so much.
20 Q. When --
21 A. But I didn't disturb him.
22 Q. When Mr. Austin called, you think that might have been
23 the day after?
24 A. It could have been, because I don't know the exact date.
25 Q. Well, it happened on April 30th.
396
1 A. I don't know the exact date, I'm sorry.
2 Q. And then when Mr. Austin called you, you looked for your
3 son?
4 A. That particular time, when he called.
5 Q. And he wasn't there?
6 A. Right.
7 Q. And when is the next time you saw your son after you
8 looked for your son and he wasn't there?
9 A. He came in that same day, that afternoon. He was there
10 before I went to work that night, I believe, because I
11 didn't -- it didn't alarm me. I didn't feel like he was not
12 there or missing or was out of town or anything like that, so
13 that's one of the reasons why I didn't really believe -- he
14 didn't have any transportation really, how could he be two
15 places at one time was what I thought to myself.
16 Q. Describe your son's attitude when you saw him that first
17 time after you got the call from Mr. Austin telling you what had
18 happened.
19 A. He was just the same, real quiet, just real quiet.
20 Q. Now, you had gotten a call from Mr. Austin, did you --
21 when you saw your son, did you talk to him about it?
22 A. The first time I saw him, I don't think I did. He
23 initiated the conversation to me.
24 Q. What did he say?
25 A. He just woke me up and he said, I need to talk to you.
397
1 Q. Now, I'm confused, because I thought the chronology was
2 you got a call from Mr. Austin?
3 A. Uh-huh.
4 Q. Maybe a day after the fire bombing?
5 A. Uh-huh.
6 Q. And then maybe up to three days later, your son talked
7 to you in your bedroom about it?
8 A. Yes.
9 Q. But that you had seen your son in the in-between time?
10 A. Uh-huh.
11 Q. What I'm asking about is in the in-between times when
12 you'd see your son, what did he say about the incident?
13 A. He didn't mention the incident at all.
14 Q. How many times did you see him?
15 A. I can't remember exactly, but I know that he was there
16 at the house.
17 Q. And after you got the call from Mr. Austin, that must
18 have been on your mind, wasn't it, that your son had been
19 accused of fire bombing an apartment in Roanoke, Virginia?
20 A. Well, he said that if Mark had done it.
21 Q. So did you talk to him about it?
22 A. I didn't ask him anything about it, no.
23 Q. Do you recall the Austin sending a newspaper information
24 down to people in Charlotte about the fire bombing?
25 A. Actually, I saw it at Ms. Austin's office.
398
1 Q. And how long after the call from Steve Austin did you
2 see it in Ms. Austin's office?
3 A. Had to have been maybe even the next week -- it wasn't
4 like immediately after, it wasn't like days after, it was a
5 period of time before I -- I went to her office to get my taxes
6 done and she showed me the article.
7 Q. She didn't have a conversation with you right after the
8 fire bombing incident in which she told you that her son Greg
9 had called and told her about the --
10 A. I had a conversation with Steve and -- I could have, I
11 could have talked to Anne, I don't remember.
12 Q. Do you recall telling Tina Davis and others after they
13 discussed the fire bombing incident, I wonder what that girl did
14 to my son to make him do that?
15 A. I remember making that statement.
16 Q. So you did have a conversation with Tina Davis shortly
17 after the fire bombing incident?
18 A. Yes, more than likely.
19 Q. And was that before or after you had a conversation with
20 your son about what happened?
21 A. That would have been after, that would have been after.
22 Q. What did your son tell you specifically about what had
23 happened?
24 A. He didn't say a whole lot of details, he just said that
25 he did -- he said that, I did what Steve said, and I am going to
399
1 turn myself in. He didn't go into detail. He didn't tell me
2 details about what he did or how he went about it. He didn't
3 tell me anything.
4 Q. You knew that he didn't have a car at that time, right?
5 A. Yes.
6 Q. Did he tell you how he got up to Roanoke?
7 A. He took his brother's car.
8 Q. And what kind of car does his brother have?
9 A. At the time, a '78 Datsun.
10 Q. And describe that car, what does it look like?
11 A. It's gray, it's primered. It's a primered car.
12 Q. And was Mario living at 3413 West Boulevard at the time?
13 A. Yes.
14 Q. And where was he the night of the fire bombing?
15 A. He was at home asleep.
16 Q. How do you know that?
17 A. Because Mario is always at home asleep. He worked -- he
18 was working at the time at Wendy's and he worked the early
19 shift. He worked like 7:30, 8:00 o'clock was his report time
20 into work. And he was asleep. I know that when he woke up that
21 morning, he said that he had let Mark use his car to go visit
22 somebody that he had met, some new girl that he had met. He
23 said, but he is not back and I have to go to work.
24 Q. So you saw him in the morning before he went to work?
25 A. Uh-huh.
400
1 Q. And that would have been at what time?
2 A. I got off about 7:15 maybe that morning and came
3 straight home to drive Mario to work.
4 Q. And tell me about the conversation that you had with
5 your son Mario that morning?
6 A. He just said that -- I told him that if Mark wasn't
7 going to use his car and have it back in time for him to be at
8 work in time, then maybe he shouldn't let him use it.
9 Q. And so did he tell you that Mark had told him that he
10 needed the car to see some girl?
11 A. He said that that's where he anticipated that he had
12 gone with his car. He just said that he asked him to use his
13 car, and he knew that he had heard him talking to somebody on
14 the phone, that maybe hopefully he had met somebody, and he
15 anticipated that's where he wanted to go in his car.
16 Q. Did he tell you when he gave his car to the defendant?
17 A. No, he didn't tell me, but it would have had to have
18 been after I left --
19 Q. I'm just asking you if he told you.
20 A. Well, no, he didn't tell me.
21 Q. You thought the defendant was at home sleeping that
22 night, too, didn't you?
23 A. Yes, everybody was at home when I left for work.
24 Q. At 11:00 o'clock?
25 A. I usually would leave at about 20 till 11:00.
401
1 Q. So you don't know for a fact whether the defendant or
2 his brother slept there that night, you don't know that, do you?
3 A. Mario, I know -- as I recall, they were there before I
4 left for work.
5 Q. I think your testimony was that the very first time you
6 ever knew that Robin and your son were having problems was when
7 he showed up in her car?
8 A. Uh-huh.
9 Q. And you knew that he had taken her car, correct?
10 A. Uh-huh.
11 Q. Without her permission?
12 A. Yes, she called and told me.
13 Q. She called and told you?
14 A. Uh-huh.
15 Q. And wanted it back?
16 A. Uh-huh.
17 Q. But that wasn't the first time that she had called to
18 you and talked to you about problems she had with Mark, was it?
19 A. Yes, that was the first time.
20 Q. And for the time period before that, were you in
21 frequent contact with your son?
22 A. Well, yes, we were, I guess not as frequent as it could
23 have been, but he would call. It was always hard to try to
24 catch me awake, I guess, and coherent enough to talk, but he
25 called. I never made calls to him because I have a long
402
1 distance block on my phone, so I never made any calls.
2 Q. But you knew for that time period that there were times
3 when Robin went back to live with her mother and Mark came back
4 and lived at 3413 West Boulevard for periods of time, you knew
5 that, didn't you?
6 A. No, he never came back in any interim to stay at my
7 house.
8 Q. Well, prior to the fire bombing, you were aware that he
9 was staying at your house and calling up to Robin, were you not?
10 A. Oh, yes, oh, yes.
11 Q. And during that time, Tina Davis was there, correct?
12 A. She may have been there in visiting or I do not remember
13 the exact dates, but she moved into my home for a short period.
14 Q. And there were times during that time when Mark and
15 Robin would argue on the phone, correct?
16 A. Yes, we heard them on the phone, whether arguing or
17 not. I know I heard some emotional conversations from his end.
18 Q. And he was angry?
19 A. He sounded real sad to me.
20 Q. Well, do you recall an incident in which Tina wanted to
21 use the phone and Mark was arguing with Robin on the phone and
22 he said to Tina, bitch, go use the pay phone, do you remember
23 that?
24 A. I'm sorry, I don't.
25 Q. Did he ever beat you?
403
1 A. My son?
2 Q. Your son?
3 A. No.
4 Q. Did he ever choke you?
5 A. No.
6 Q. Did he ever curse you?
7 A. I'm sorry?
8 Q. Did he ever curse you?
9 A. Yes, he has.
10 Q. Did he ever call you bitch?
11 A. Very possibly in argument.
12 Q. And did there ever come a time when he choked you or
13 beat you in front of Tina Davis?
14 A. No. I think maybe in front of Tina Davis we had an
15 argument, and there was probably some pushing and struggling
16 going on between Mark and myself. I can't say that he actually
17 choked me, but we did become physical with one another.
18 Q. And what was that about?
19 A. I can't remember exactly what stirred the fight, but we
20 did have a disagreement and we did become physical with each
21 other.
22 Q. And there was some pushing and shoving?
23 A. Yes.
24 Q. And he pushed and shoved you?
25 A. Yes.
404
1 Q. And he pushed and shoved your father?
2 A. Yes.
3 Q. Now, you mentioned the incident in which he got shot by
4 his cousin, LaDon Barbour?
5 A. Yes.
6 Q. That person is related to you how?
7 A. He is my first cousin's son.
8 Q. And do you remember -- and he was living on your
9 property?
10 A. Uh-huh.
11 Q. And you remember prior to him coming in and shooting
12 your son that your son had shot the house that he lived in, do
13 you remember that?
14 A. Yes.
15 Q. And you were there?
16 A. Yes.
17 Q. And you saw your son use a rifle or a shotgun?
18 A. I don't recall.
19 Q. What do you recall?
20 A. What I recall is that LaDon had, and it wasn't the first
21 time, but this particular occasion he had come and was demanding
22 money from my father in the essence he also had stolen a tag
23 from the vehicle of a friend that was in our driveway. And we
24 had called the -- he had called the police, because he said
25 that -- I don't remember why he said he called the police, but
405
1 he called the police and the police came and were talking to us
2 about taking out a restraining warrant. And one of the officers
3 advised me to go do that right then, because there had been
4 other problems before. And when I went to do that, I went to
5 pick up my cousin Jean and to bring her back to the house to
6 stay with my dad while I went to the police station. And when I
7 went to pick her up and came back to drop her off, LaDon had
8 already come and shot Mark.
9 Q. But tell the jury about when Mark had shot the house
10 that LaDon lived in.
11 A. He went down and he -- there was another guy there and
12 he had asked was Don there, and he said no, he wasn't there. So
13 Mark had shot his radio, shot a radio or whatever.
14 Q. And you were there?
15 A. Yes.
16 Q. And what kind of gun did he have when he shot the radio?
17 A. It could have been a rifle.
18 Q. Was it a handgun or a long gun?
19 A. No, it was a long gun, it was a long gun.
20 Q. In late January of 1995, your son had access to a long
21 gun and, in fact, used it at 3413 West Boulevard?
22 A. Uh-huh.
23 Q. Do you recall an incident where your son was cursing you
24 and choking you and the police had to be called?
25 A. That would probably have been the same incident as where
406
1 you said Tina said he was choking me. That was the same
2 incident.
3 Q. And as a result of your son's physical behavior in the
4 house, the police were called?
5 A. The police were called, yes.
6 Q. Now, you testified that between the time that you first
7 learned of the fire bombing and the time that these two people
8 were killed, your son was at your house the whole time?
9 A. He went to visit his cousin for a few days, but overall,
10 yes, he was there.
11 Q. Now, he went to visit his cousin, you mean Shondra Nero?
12 A. Yes.
13 Q. And this was right after the fire bombing, correct?
14 A. Yes.
15 Q. And Shondra lives over on the east side of town?
16 A. Yes.
17 Q. Where Donnie Lee Allen's car was found a month later,
18 right?
19 A. Yes.
20 Q. Shondra's apartment is right behind where the car was
21 found?
22 A. I didn't know.
23 Q. And your 24-year-old son just happened to go visit his
24 cousin after the fire bombing for a few days?
25 A. Yes.
407
1 Q. And she is -- lives by herself?
2 A. She lives with her fiancee and her daughter.
3 Q. And other than that, he was at your house the whole
4 time?
5 A. Other than that, yes.
6 Q. Were you aware that he had been up to Roanoke?
7 A. No.
8 Q. In that time period?
9 A. No.
10 Q. You were not aware of that?
11 A. Not at all. I don't think that Mario allowed him to use
12 his car anymore.
13 Q. Well, tell me about that. Whatever happened to Mario's
14 scar?
15 A. His car is mechanically not working.
16 Q. Whatever happened to it after the fire bombing for the
17 six weeks?
18 A. He was driving it back and forth to work every day up
19 until probably three months ago.
20 Q. And you are saying that your son killed Donnie Lee Allen
21 to get his car because his brother Mario wouldn't let him drive
22 his car anymore?
23 A. Mark only used Mario's car on the one occasion when he
24 was late coming back in order for Mario to be at work. And I
25 told Mario that he needed to make sure that he got to work on
408
1 time, and if loaning his car to his brother was going to make
2 him late for work, maybe he shouldn't loan him his car.
3 Q. So if Mark Barnette went up to Roanoke in the six weeks
4 between the fire bombing --
5 A. I don't know how he made, he would have made those
6 trips. I don't know how he would have made those trips.
7 Q. But if he did do that, that would be inconsistent with
8 your account --
9 A. Yes. I don't know during that period of time any times
10 when he could have made those trips, I honestly don't know.
11 MR. CONRAD: That's all I have, Your Honor.
12 REDIRECT EXAMINATION
13 BY MR. WILLIAMS:
14 Q. With regard to the LaDon Barbour incident, you know, do
15 you not, that LaDon Barbour ended up pleading guilty to
16 assaulting Mark with a deadly weapon with intent to kill
17 inflicting serious injury?
18 A. Yes.
19 Q. And he was sentenced for that?
20 A. Yes.
21 Q. After Mark was arrested in this case, would you ever go
22 up to his room and go through his things?
23 A. Yes.
24 Q. Did you ever find any sleeping pills?
25 A. Yes.
409
1 Q. Where did you find them?
2 A. I found them in his trash, in his trash can.
3 Q. Do you remember how many boxes there were?
4 A. I found about three boxes of some type of -- they were
5 over the counter because they weren't prescription bottles. And
6 I don't know the exact names of them, but there were about three
7 boxes, three empty boxes.
8 Q. Was Mario's car always in working order?
9 A. No, it has been not top-notch, but it has gotten him
10 back and forth to his job up until about three months ago.
11 MR. WILLIAMS: No further questions.
12 MR. CONRAD: Your Honor, if I could briefly.
13 RECROSS-EXAMINATION
14 BY MR. CONRAD:
15 Q. You were asked about going through your son's things.
16 Did you ever go through his things and see these?
17 A. Never.
18 MR. WILLIAMS: Objection, Your Honor, I asked after the
19 incident, after he was arrested.
20 THE COURT: After what incident, after the shooting?
21 MR. WILLIAMS: After the shooting -- after he was
22 arrested is what I asked.
23 THE COURT: Overruled.
24 BY MR. CONRAD:
25 Q. Did you ever see these things?
410
1 A. Never.
2 Q. You didn't see this before it was sawed off, did you
3 ever see your son tape a flashlight to this, did he ever talk to
4 you about going to a pawn shop and buying these two weapons?
5 A. No, it was afterwards that I found the receipt.
6 MR. CONRAD: That's all I have, Judge.
7 THE COURT: Thank you, ma'am. Call your next witness.
8 MR. WILLIAMS: Derrick Barnette, Your Honor.
9 Judge, we are going to offer at this time before
10 Mr. Barnette comes out to offer into evidence Defendant's
11 Exhibit Number 55.
12 MR. CONRAD: Your Honor, I just object because it's
13 totally collateral to any issues in this case.
14 MR. WILLIAMS: It corroborates the testimony.
15 THE COURT: Let me see what it is.
16 (Bench conference not recorded.)
17 DERRICK BARNETTE,
18 being first duly sworn, was examined and testified as follows:
19 BY MR. WILLIAMS:
20 Q. Would you tell the ladies and gentlemen of the jury your
21 name, please?
22 A. Derrick Barnette.
23 Q. Mr. Barnette, how are you related to Mark Barnette,
24 seated next to me?
25 A. That's my son.
411
1 Q. Where do you now live?
2 A. Clinton, Maryland.
3 Q. Who do you live there with?
4 A. My wife, and I have another son.
5 Q. And at one time, were you married to Sonia Barnette?
6 A. Yes.
7 Q. When did you first begin dating Sonia?
8 A. Somewhere around, I guess, the eighth grade, maybe
9 before.
10 Q. How old were you when Mark was born?
11 A. 16.
12 Q. Did you also call him Vicci?
13 A. Yes.
14 Q. V-I-C-C-I?
15 A. Yes.
16 Q. Is that a nickname he had from, taken from his middle
17 name?
18 A. Yes.
19 Q. Your background -- well, strike that. You were how old
20 when your parents -- did your parents separate?
21 A. They divorced.
22 Q. And was that when you were -- were you at a young age at
23 that time?
24 A. Yes.
25 Q. Tell the jury about your relationship with Sonia
412
1 Barnette and the family, briefly giving a brief synopsis of the
2 relationship after you were dating Sonia in which she became
3 pregnant.
4 A. I guess like any other young man, I met Sonia in school,
5 she was a couple years younger than myself. And we got along
6 and basically that's it, you know, we started dating.
7 Q. After you were dating, did you get married?
8 A. Yes. I joined the military. I was in the military
9 about a year, and we got married and I was in Nebraska at that
10 time.
11 Q. Did you move around a lot when you were living with
12 Sonia and Mark?
13 A. Before -- when we got married, I was living in Nebraska,
14 and I traveled home maybe once or twice within that year's
15 period. When we got married, when I came home to get married,
16 we -- when I got back to Nebraska I had orders to go to Okinawa,
17 and -- but I moved them to Nebraska and we lived six months as a
18 family. We didn't have any furniture, but we had maybe a TV, a
19 cot, and some pots and pans that we had from wedding gifts.
20 That was, you know, the way we lived at that time.
21 Q. When Mario was born, were you still in the service?
22 A. Yes.
23 Q. And did you spend more time away from home while you
24 were in the service than you did at home?
25 A. After we got married, we spent six months together.
413
1 Then I went to Okinawa for 18 months, and during that period, I
2 believe I came home twice. And once I left Okinawa, I took the
3 whole family to North Dakota.
4 Q. As the relationship early on with you and Sonia and Mark
5 and Mario developed, were the -- was the beginning of that
6 relationship, was it a -- were things going well, was it a good
7 relationship to begin with?
8 A. Yeah, I thought we had a pretty decent family. My
9 mother had left me a house, so we didn't have as many bills as
10 some of our friends had, which afforded us the opportunity to do
11 some things or relax a little bit more, more so than trying to
12 seek out a job or a good paying job or a career at that time.
13 Q. Did you and Mark get along well?
14 A. I thought we did. I thought we had a real good
15 relationship.
16 Q. And did you all do things together?
17 A. Yes.
18 Q. Did he have any special talents?
19 A. He could draw.
20 Q. Draw well?
21 A. It turned into well, yeah. I mean, you know, just like
22 any kid starting out. I was a little strict on that, because I
23 wanted him to do other things other than draw, so I tried to
24 motivate him to do other things. But after he continued and I
25 understood that this was one of his talents, because I can't
414
1 draw or sing or dance, I didn't want to stop him from doing
2 that.
3 Q. Did you introduce Sonia to a person by the name of Tina
4 Davis?
5 A. Yes.
6 Q. What was the reason for that?
7 A. I think I was going to Okinawa at that time and -- or
8 maybe I had come home, I'm a little unclear on the situation,
9 but I remember the conversation that I asked Tina to look after
10 Sonia while I was gone. She didn't know anybody in the
11 neighborhood, and Tina was one of my neighbors, so I asked her
12 to watch out for Sonia while she was pregnant, I believe.
13 Q. Did you learn whether or not Sonia and Tina would go out
14 an night during the times when you were in the service?
15 A. I didn't know, I wouldn't know.
16 Q. Did you ever talk to Tina Davis about that?
17 A. No, not specifically, I don't think. I don't remember
18 having a conversation with her about that.
19 Q. As time went on, did you and Mark talk about his school
20 work?
21 A. Yeah, we had multiple conversations about his school
22 work. My mother was a school teacher. She stayed on me to do
23 my school, and I thought that was my job to make sure that my
24 children got a decent education.
25 Q. Where are you employed at this time?
415
1 A. I work for the United States Postal Service.
2 Q. Do you work for the government?
3 A. Yes.
4 Q. How long have you worked for the United States Postal
5 Service?
6 A. Somewhere, 15, 16 years.
7 Q. Did you discipline your son Mark?
8 A. Yes.
9 Q. How did you do that?
10 A. I spanked him. I used the belt, maybe a switch, but
11 never hit him in his face or intentionally hit him in his face
12 or anything above his legs. On his butt was the highest.
13 Q. Would these, this discipline, was this a fairly constant
14 thing?
15 A. No. I wouldn't walk in the house and smack him upside
16 the head. We would have conversations about, where are your
17 books? I did my homework in school, would normally be the
18 answer. And I would tell him that I didn't want to see any bad
19 grades coming in because I had done that before, I know the
20 routine.
21 Q. And when bad grades would come in, would you discipline
22 him with the belt?
23 A. I don't remember any specific incidents of bad grades.
24 He made pretty decent grades. C's were okay, depending on the
25 subject. I'm not a great history fan or English, but I
416
1 understand that you need those things. So if there was
2 something that he wasn't quite up to par in, I would try to work
3 with him. But I don't remember disciplining him over any
4 specific grade.
5 Q. How often would you discipline?
6 A. I mean, it wasn't a routine. I mean, I didn't have a
7 schedule, whenever he did something that I told him not to do.
8 Q. Would the way you would use the belt, would that last
9 for just one hit or two, or would it go beyond that?
10 A. It would be a spanking, depending on the incident. You
11 know, smack his hands, sometimes, sometimes he needed a
12 spanking, you know, just depending on the situation.
13 Q. When you say spanking, is that when you mean you would
14 use a belt, is that what you mean by spanking?
15 A. Yeah.
16 Q. Okay. You grew up around guns, didn't you?
17 A. Yes.
18 Q. Tell the jury about that.
19 A. I had an uncle, he was a hunter, and my father and he
20 and some of his friends when I was young would take me out.
21 They always practiced good gun safety, and they would go
22 hunting. They would let me shoot the gun once, maybe twice, but
23 I only remember shooting once and it knocked me down. And
24 basically that was the, you know, my experience as a child with
25 a gun. My mother had a gun. I knew where it was. I was
417
1 instructed not to touch it. I knew what it was. I knew what it
2 did, and I didn't have a need for it.
3 Q. Did you have, when you and Sonia lived together with the
4 children, did you have guns in the house?
5 A. Yes, I had my mother's gun and I registered a .357
6 Magnum, which is still registered here in Charlotte.
7 Q. What kind of different guns did you have in the house
8 while you lived with Sonia and the children?
9 A. I think those are the only two that I can recall.
10 Q. What kind of guns were they?
11 A. One was a .22 revolver and the other was a .357 Magnum.
12 Q. Did you ever have a .25 caliber?
13 A. Yeah, I got that when I was in the service, I forgot
14 about that.
15 Q. Did you ever take Mario and Mark out to shoot the guns?
16 A. Yes, I did. I thought it was my responsibility to let
17 them know what guns were, what they did. And I have an aunt
18 that lives in South Carolina. I took them down for target
19 practice. I loaded up water jugs and we shot. Since the .357
20 was registered, I had it and it was -- could be out, and I
21 didn't want them to be curious and then, you know, Daddy's got a
22 gun, we know where it is, let's go get it, let's play with it.
23 I gave them specific instructions when I got the gun, I unloaded
24 it, opened the barrel and handed it to them and said, okay, now,
25 you look at this and you do whatever you want to do with it
418
1 short of pointing it at somebody to make sure that you
2 understand what this is and what they are.
3 Q. When you were living with Sonia and the children, Mark
4 and Mario, did you always carry a gun with you?
5 A. Not always.
6 Q. Most of the time?
7 A. Sometime, yes.
8 Q. Did you keep a gun with -- did you tell me on a prior
9 occasion that you usually keep a gun with you?
10 A. No. I only carry a gun now if I travel out of town, and
11 that's in a vehicle, never on an airplane or, you know.
12 Q. I'm talking about when you lived with Sonia and Mario
13 and Mark, did you keep a .357 on you?
14 A. Yes.
15 Q. And would you carry the .357 with you?
16 A. I don't understand what you mean by carry.
17 Q. Well, did you keep it in the car?
18 A. Yes.
19 Q. Did you take it from the house to the car?
20 A. Yes.
21 Q. Did you keep it on your person at sometimes when you'd
22 get out of the car?
23 A. Not on a regular basis, no. It would depend on what the
24 situation was. If it was, you know, we are going to the store,
25 I don't think I carried a gun in that particular case. If we
419
1 were traveling, yes. If I was going somewhere to shoot, yes, I
2 would take it out. But it wasn't --
3 Q. Did you and Sonia begin to have trouble?
4 A. Yes.
5 Q. Did you fight?
6 A. Sometimes.
7 Q. I want you to tell the jury about the different types of
8 arguments that you would have with Sonia when the children were
9 around.
10 A. Basically we started -- we had a good relationship, and
11 then Sonia wanted to go out. And I said that that was fine,
12 because I didn't care about going to clubs, I have done that and
13 there is nothing out there, for me anyway. And she would go out
14 with Tina and I was starting to question that, why are you
15 going, what you doing, you know, do you have to go out every
16 week. And, you know, basically her response to was me, you
17 know, I work hard all day and I should enjoy myself, so --
18 Q. Did you and Sonia have fights about infidelity?
19 A. I think most of our fights came from wanting her to
20 leave, asking her to leave. My mother left me a house, and I
21 told her, you know, just leave and you can take anything you
22 want, just go, you know, because we weren't getting along. We
23 tried to make up a couple of times and it just didn't work out.
24 Q. In some of these arguments, did you tell me that it had
25 to do with Sonia dating other men?
420
1 A. Yes, I suspected that. I never could validate that or
2 prove it, but I suspected it. I mean, you leave home at night
3 and come home in the morning, yes.
4 Q. What do you mean by that, would that be what Sonia would
5 do?
6 A. Yes, she would go out and, you know, just like, I guess,
7 any other husband would do, you call their friends to say, where
8 are you. Well, the first couple of times, it was, I haven't
9 seen her, or, you know, whatever. So I never really saw her
10 with anyone in particular, you know, where I went and followed
11 her. I did try to follow her a couple of times, but I just
12 stopped and turned around.
13 Q. Were the arguments about this in the home while the
14 children were there?
15 A. Some of them, yes.
16 Q. Would they hear the arguments?
17 A. Yes.
18 Q. Were they loud?
19 A. Yes.
20 Q. Were they physical?
21 A. Some were.
22 Q. Did you ever slap her or hit her in front of the
23 children?
24 A. Yes.
25 Q. Did you ever hit her with a hammer?
421
1 A. Yes.
2 Q. How old was Mark when you hit Sonia with a hammer?
3 A. I don't remember.
4 Q. Where did you hit her with a hammer?
5 A. Maybe on the side of the head.
6 Q. Was this during a period of time when you were arguing
7 with Sonia about what was going on in your relationship and
8 possibly other men?
9 A. Yes.
10 Q. Did you ever kick in a door?
11 A. Yes.
12 Q. Where did that happen?
13 A. On Clanton Park, Comstock.
14 Q. Tell the jury about that.
15 A. We had an argument. I think I went outside. The door
16 was locked. I kicked the door.
17 Q. Did you kick the door down?
18 A. No, I kicked a hole in it. And I'm not sure if -- beg
19 your pardon?
20 Q. Was that at home?
21 A. Yes.
22 Q. Were the children there?
23 A. I don't recall.
24 Q. Did it leave a hole in the door?
25 A. Yes.
422
1 Q. What was that about?
2 A. I don't recall, it was just an argument that we had.
3 And I don't remember what happened after I kicked the door, I
4 just don't recall.
5 Q. Was there ever a time when you were in the bed and Sonia
6 was standing over you with something?
7 A. Yeah, I think it was -- I was on the sofa. I woke up,
8 and she was standing over me with a frying pan or a pot and she
9 was going to hit me with it. And I just opened my eyes. I
10 don't think we had been arguing before. And really that turned
11 into a joke for, you know, between us, because when I woke up,
12 you know, she said that she was mad about something, but it
13 didn't seem like it was intense or about any one specific
14 particular thing, you know.
15 Q. How long did these physical and verbal fights go on
16 while the children and Mark was in the house?
17 A. I think 15 minutes at the most.
18 Q. I don't mean a particular incident. I mean, did these
19 go on for a month, two months, six months, a year, the arguing
20 and the fighting?
21 A. Maybe a year, maybe two, I can't --
22 Q. Did you and Sonia finally separate?
23 A. Yes.
24 Q. And you went through a court proceeding, is that
25 correct?
423
1 A. Yes.
2 Q. And as a result of that court proceeding, you were
3 paying child support?
4 A. Yes.
5 Q. At some time -- let's see, I believe you separated in
6 1984, is that correct?
7 A. I don't recall the date.
8 Q. Did you divorce in 1985?
9 A. I think it was a year after we separated, yes.
10 Q. And sometime after you divorced Sonia, did you question
11 whether or not Mark was your son?
12 A. I had questioned it before. We had --
13 Q. Why did you question it before?
14 A. This was the process. I had questioned it before. We
15 had a family attorney. I had talked to him about it. He said
16 that he could not represent us. I respected his opinion on
17 that, because he explained to me why, you know, he is part of
18 our family, so he couldn't take Sonia's side or my side, and I
19 understood that. I had to call some attorneys randomly, and
20 they weren't really interested in taking the case.
21 Q. So did you at some time raise that issue?
22 A. Yes.
23 Q. Did you ask the Court for some blood tests?
24 A. Yes.
25 Q. Was that the same court that you were involved in in the
424
1 legal proceeding between you and Sonia over your divorce?
2 A. No, I don't think so.
3 Q. Well, I mean, you were in one lawsuit, correct?
4 A. Yeah.
5 Q. Just one lawsuit?
6 A. Okay, you are right.
7 Q. Did you file in that lawsuit a request for blood tests?
8 A. I don't remember. I don't know if it was part of that
9 or if it was in conjunction with -- I don't think I went to the
10 attorney and asked for a divorce and say, and let's have a blood
11 test for paternity. I don't recall that as being the driver for
12 the divorce.
13 Q. I understand. But during the legal proceeding, did your
14 lawyer in your behalf file a request for blood tests?
15 A. If it's in the documentation, yes.
16 MR. WILLIAMS: May I approach the witness, Your Honor?
17 THE COURT: Yes.
18 THE WITNESS: I just don't recall.
19 BY MR. WILLIAMS:
20 Q. Let me show you a document that's been marked for
21 purposes identification as Defendant's Exhibit Number 33 and ask
22 you to look through that document, and ask you if that is not
23 the legal proceeding that was filed in Mecklenburg County
24 District Court with regard to the domestic problems you had with
25 Sonia Barnette?
425
1 A. Yeah, this is the document for -- yeah, for divorce.
2 Q. And in that case, was there -- were there some blood
3 tests done in that case?
4 A. Yes, according to that, yes, and it was some blood tests
5 done. I'm not disputing that, but I'm -- just in conjunction
6 with your question as far as was it done together or separately,
7 I just don't remember.
8 Q. As a result of those blood tests or the question that
9 you had, you went to a laboratory set up through the court,
10 Sonia did and the two children with regard to those blood tests?
11 A. Right.
12 Q. And the results are part of that record, are they not?
13 A. Right.
14 Q. And they came back and the results were that you were
15 not the father of either Derrick -- excuse me, were not the
16 father of either Mark Barnette or Mario?
17 A. Yes, that's correct.
18 Q. After this happened and the results came back, did you
19 stop paying child support?
20 A. Yes.
21 Q. Did you take, after this happened, did you take the
22 children out to dinner one night to a steakhouse?
23 A. Yes.
24 Q. And was that for the purpose of telling them the results
25 of the blood tests?
426
1 A. Yes.
2 Q. What did you tell them, how -- strike that. When you
3 told -- strike that. When you took Mario and Mark out to
4 dinner, how old was Mark?
5 A. I don't recall, maybe 11, 12, maybe, I'm not sure.
6 Q. This would have been, and the results, I think the
7 record will show the tests were in 1987, where did you take them
8 out for dinner?
9 A. I think I took them back home, but I'm not sure, I don't
10 recall.
11 Q. Did you take them to a steakhouse?
12 A. Oh, after dinner?
13 Q. No, where did you take them out to dinner?
14 A. Oh, out to dinner. I took them to Steak and Ale on
15 Tyvola Road.
16 Q. What did you tell them?
17 A. I told them that I was not their biological father, and
18 that this had nothing to do with them and that I still loved
19 them. And when I made that statement, it didn't seem to be that
20 they really understood what I was saying. So I made a statement
21 to the fact that, how would you like your girlfriend going out
22 and having babies by other men, and, you know, you are supposed
23 to be in love with that person. And that was the only comment
24 that I made to them. I didn't dwell on the situation.
25 Q. So as an example of what you had told them, you gave
427
1 them the example that it was like if they had girlfriends who
2 were having babies by somebody else?
3 A. Yes.
4 Q. Did you see Mark much after you and Sonia divorced?
5 A. I guess as much as could be possible. I left and went
6 to Philadelphia. And I always had the line of communication
7 open, because I didn't know what Sonia was going to respond with
8 this document, you know, what -- I never asked her who the
9 father was, because to me, that situation was over. And, you
10 know, I told Mark and Mario that at any time, that they could
11 call me, you know, collect, and I continued to express that to
12 them.
13 Q. I'm sorry, I didn't mean to interrupt, go ahead.
14 A. And on occasions, we spoke about school, I was always
15 interested in what their grades were. And I believe they came
16 to New Jersey to -- a week or so, and I fly remote control
17 airplanes and I taught them how to fly. And I think I bought
18 Vicci a glider so that he could put together, because he liked
19 cars, I like airplanes, you know, just to share something with
20 him.
21 Q. Did it appear to you that before you and Sonia divorced
22 that Mark was interested in the family unit being a family and
23 staying together?
24 A. Yes.
25 Q. Can you explain that to the jury.
428
1 A. I guess the hardest part of this was the separation of
2 the kids. I love Mario and Vicci. We did a lot together. They
3 were smart kids. And to go off and not have that day-to-day
4 interaction was hard.
5 Q. Did that appear to you to affect Mark a great deal?
6 A. Yeah, and I'm not sure what conversation or just in the
7 regular conversation. I would go and pick them up and try to
8 make it seem that, you know, hey, you got two homes now, it's
9 not necessarily that we're separated and now you live over here,
10 but now you can come and hang out with me and we'll do things.
11 I was interested in -- these are the things that stick in my
12 mind.
13 Q. Did you move out of state?
14 A. Yes.
15 Q. Where did you move?
16 A. Philadelphia.
17 Q. Did you talk to Sonia much after you and she divorced
18 about what was going on in Mark's life?
19 A. Not a whole lot. I know when he dropped out of school,
20 I tried to talk to him about going back. I got a phone call
21 about he wanted a car, and I offered to pay half of what he
22 asked and he had to come up with the rest since he wasn't in
23 school. I was trying to use that as some incentive for him to
24 go back.
25 Q. When you would talk to Sonia periodically -- strike that
429
1 question. Did you talk to Sonia periodically after you and she
2 divorced about the children?
3 A. Yes, I liked to know what they were doing. I was led to
4 believe that everything was okay.
5 Q. And that was my question, you were led to believe that
6 everything was okay?
7 A. More or less. I mean, you know, other than some
8 day-to-day stuff, everything seemed to be okay.
9 Q. Did you know about any of the things that happened in
10 Mark's life in Newnan, Georgia?
11 A. I only knew about one incident and that's when he was
12 incarcerated for spanking the kids with the coat hanger, I
13 believe. The other incidents, I didn't know because I just
14 didn't know. And I had talked to them sporadically in between
15 there, but I had a conversation with Mark when he called me when
16 he was incarcerated. And I knew of another incident. She did
17 talk to me about some guys that wanted to jump on him and beat
18 him up, or he was having a problem with some guys in the
19 neighborhood. It wasn't explained to me that it was real
20 serious, you know. Everybody has a little conflict every now
21 and then, but I wasn't aware of the degree.
22 Q. How would you describe your son, Mark Barnette, before
23 all of this happened?
24 A. If you had asked me, I would have said that he was
25 average, maybe a little above average, a great communicator,
430
1 likable, friendly, trusting. I mean, this is, you know, what I
2 saw. I saw a few problems, you know, but not being there to
3 influence some of those decisions, this is what I saw.
4 Q. When you learned about what had happened, what Mark had
5 done, what was your reaction?
6 A. Well, I learned about it in two stages. I learned
7 about -- when he shot Robin, I got a phone call, I was out of
8 town and I got back and I called and that was the message I
9 got. I was like devastated, but understanding men and women
10 relationships, you know, those things happen, not to say that
11 that's good. But, you know, when I found out the other issue
12 about the car, I was totally devastated at that point and I was
13 just hurt.
14 MR. WILLIAMS: That's all I have, Your Honor.
15 THE COURT: Cross?
16 MR. CONRAD: Thank you, Your Honor.
17 CROSS-EXAMINATION
18 BY MR. CONRAD:
19 Q. Mr. Barnette, was your excessive discipline the reason
20 that you and Sonia Barnette divorced?
21 A. No.
22 Q. When you disciplined your son, Mark Barnette, did you
23 leave welts and bruises?
24 A. No.
25 Q. Did you punch him on two occasions?
431
1 A. I don't remember.
2 Q. In the third grade, did you beat him every couple of
3 weeks?
4 A. No.
5 Q. If he got bad grades, would he get beat for an hour?
6 A. No.
7 MR. CONRAD: That's all I have, Judge.
8 MR. WILLIAMS: That's all, Your Honor.
9 THE COURT: Thank you, sir, come down.
10 Members of the jury, we will take the --
11 MR. WILLIAMS: We do offer into evidence the Exhibit
12 Number 33, Your Honor.
13 MR. CONRAD: I object on relevance grounds, Judge.
14 THE COURT: 33?
15 MR. WILLIAMS: 33.
16 THE COURT: Okay, let it be admitted.
17 MR. WILLIAMS: May I approach and retrieve the
18 exhibits?
19 THE COURT: Yes, sir, go ahead.
20 We will take a luncheon recess at this time. I believe
21 it's warmed up in here. Maybe we ought to stay in here and get
22 warm. Do not discuss the case among yourselves or anyone
23 outside of the courtroom. I ask you to come back, is 2:00
24 o'clock going to rush you too much? All right, 2:00 o'clock
25 then, please.
432
1 (The jury left the courtroom.)
2 THE COURT: Mr. Conrad, the court reporter said that you
3 objected to the last exhibit. I've admitted it, it was just --
4 MR. CONRAD: It was just a relevance objection.
5 THE COURT: I understand. Yes, sir?
6 MR. LAUGHRUN: Judge, before we break for lunch, after
7 Sonia testified, Mr. Williams offered Defendant's Exhibit 55,
8 which is a conviction for LaDon D. Barbour D for pled guilty to
9 assault with a deadly weapon inflicting serious injury.
10 THE COURT: Yes, sir.
11 MR. LAUGHRUN: On Mr. Barnette and you overruled that.
12 THE COURT: Sustained the objection.
13 MR. LAUGHRUN: You sustained the objection. For the
14 record, we would like to offer that for the record only.
15 THE COURT: All right, that's fine.
16 MR. LAUGHRUN: At the bench conference, that's all that
17 was discussed. I believe Mr. Conrad can confirm that's all that
18 was discussed, and I offer that for the record at this time.
19 THE COURT: Thank you, sir, recess until 2:00 o'clock.
20 (Lunch recess.)
21 THE COURT: Call the jury.
22 MR. LAUGHRUN: Before we do that, we were going to
23 address a matter at 9:15 and we were -- I guess I would like to
24 bring it up to Your Honor, we gave the government a copy of a
25 statement, we had a witness problem due to a medical condition.
433
1 Mr. Conrad used that statement to cross-examine at least one of
2 our witnesses this morning, both of them I believe. We were
3 waiting to see if they had an objection to that proposal that
4 one of our mitigation specialists testifies about that statement
5 due to her medical state, and I guess I wanted to see what their
6 response was because we may get to that.
7 THE COURT: Call the jury.
8 MR. LAUGHRUN: Judge, we want to see the government's
9 response to this.
10 MR. CONRAD: We do not object to the statement going in,
11 but we object to someone coming in and reading the statement.
12 THE COURT: How are you going to get it in?
13 MR. CONRAD: We don't object to them admitting and using
14 it for the whoever purpose, but it's cumulative, extremely
15 cumulative of the morning testimony.
16 THE COURT: You want to put the statement in without
17 trying to read it?
18 MR. LAUGHRUN: I guess we can make 12 copies and let the
19 jury read it.
20 THE COURT: We will make 12 copies for you.
21 MR. LAUGHRUN: We can do that, Judge.
22 THE COURT: All right.
23 MR. LAUGHRUN: We will provide them tomorrow, we will
24 make and provide the copies.
25 THE COURT: Call the jury.
434
1 (The jury returned to the courtroom.)
2 THE COURT: All right, is it hot now?
3 (Laughter.)
4 THE COURT: I am too, that's the way it goes, we will do
5 the best we can. I been around here 17 years and where ever
6 whether here or Statesville whatever, been in a uncomfortable
7 courtroom, it's either hot or cold, I don't know why we can't
8 get them straight. All right, Mr. Williams.
9 MR. WILLIAMS: Ayanna Brewer Beasley. We call her,
10 AYANNA BREWER BEASLEY,
11 being first duly sworn, was examined and testified as follows:.
12 DIRECT EXAMINATION.
13 BY MR. WILLIAMS:
14 Q. Would you tell the ladies and gentlemen of the jury your
15 name, please?
16 A. My name is Ayanna Brewer Beasley.
17 Q. And are you married at this time?
18 A. Yes, sir.
19 Q. And is that Beasley, is that the funeral home?
20 A. Yes, sir.
21 Q. How old are you?
22 A. 23.
23 Q. Did you know -- do you know Mark Barnette the gentleman
24 seated next to me?
25 A. Yes, I do.
435
1 Q. How do you know him?
2 A. Mark and I met when I was in junior high school and we
3 were really good friends at that time, and periodically he
4 stayed in contact through the years.
5 Q. When you met him, I think you said junior high school?
6 A. Yes.
7 Q. About how old were you, do you remember when you first
8 met him?
9 A. About 14, and Mark was about maybe 15.
10 Q. Do you know whether or not he moved eventually to
11 Georgia?
12 A. Yes.
13 Q. When you met him and knew him, was that before he went
14 to Georgia?
15 A. Yes.
16 Q. Okay. And can you just tell the jury about your
17 relationship with him, I mean, did you all see each other on a
18 regular basis, visited the home, what type of relationship did
19 you and he have?
20 A. Well, we were classmates, quote unquote, went together
21 at that time, junior high school and we were neighbors. So Mark
22 and his family lived up the street from me and I saw him every
23 day.
24 Q. Okay. And for how long a period of time would you say
25 that you saw him every day, what are we talking about a year or?
436
1 A. About a year.
2 Q. What would the -- during that time how would you
3 describe Mark?
4 A. Mark was quite, he was quiet to other people that was
5 not in his circle for the most part. He was very smart, an
6 excellent artist. He drew things and he helped people in school
7 as best as possible, he helped his mother a lot, his mother was
8 a single parent and he helped her a great deal.
9 Q. How would he do that?
10 A. Excuse me?
11 Q. How did you know that?
12 A. I saw it, I mean they were neighbors.
13 Q. Were you in the home?
14 A. No -- well, not on a daily basis, but you do -- you are
15 observant to your neighbors and your surroundings.
16 Q. Did you know his brother Mario?
17 A. Yes, sir.
18 Q. Describe how the relationship was between Mark and
19 Mario?
20 A. As far as I know they had a very close relationship.
21 Mario stayed with Mark a lot of times, but they were new to that
22 community, and I would assume they were friends as well as
23 brothers.
24 Q. Did you know his mother Sonia?
25 A. Yes, I did.
437
1 Q. Was she around most of the time or was she --
2 A. Yes, she was a working mother, a single parent but she
3 was a working mother.
4 Q. Did you ever see Mark take care of Mario?
5 A. Yes, like I said, stated earlier, Mario and -- Mario was
6 with Mark most to the time.
7 Q. And did you and -- did you ever go in the family and see
8 who looked after Mario?
9 A. What do you mean?
10 Q. Were you ever in the home to see who was running the
11 household or taking care of people or anything like that?
12 A. Not on a daily basis, no.
13 Q. All right. And how would you describe Mark's
14 personality back then when y'all were spending time together?
15 A. Mark was a real nice guy. Mark constantly had a smile,
16 it was just his look, but he was a pleasant person, someone that
17 was easy to talk to, easy going person.
18 Q. Was he pleasant to you?
19 A. Yes, he was.
20 Q. Was -- did you all date and go together for a while?
21 A. We did not date as in going out, we were classmates and
22 the most that we went out was like to a school dance or
23 something like that.
24 Q. How would you describe your relationship with him, was
25 it any kind of a young girl, young guy relationship?
438
1 A. Yes, it was.
2 Q. Did you ever go steady as that term is used?
3 A. Could you --
4 Q. As that term is used.
5 A. Well, like I said, we quote unquote went together, that
6 was my boyfriend in junior high school.
7 Q. Okay. Were you friends?
8 A. Yes, we were.
9 Q. Were you ever afraid of Mark?
10 A. No, sir, I wasn't.
11 Q. Did you ever see him mad during that period of time?
12 A. When I saw -- I never saw Mark mad as if he was in a
13 rage, we have days when our feelings are hurt for whatever
14 reason, and the most I can remember when Mark was upset is that
15 he was very quiet. He did not -- he was an easy person to talk
16 to but he did not really express his feelings.
17 Q. Did you ever see him depressed?
18 A. I can't say that.
19 Q. Did you stay in touch with him after he went to Georgia?
20 A. After Mark went to Georgia, I believe he called and it
21 was like -- we didn't talk a whole lot at that time, but I can
22 remember Mark coming back to Charlotte and he had a cousin that
23 lived in the same neighborhood in which we lived and I would see
24 him pretty much every time he came to Charlotte, we would get in
25 touch with each other somehow.
439
1 Q. During the time that you were around Mark, was his
2 father Derrick in the home or was this after he and his mother
3 and father separated or do you know?
4 A. I have never met his father until today.
5 Q. Okay. Did you ever write Mark when he was in jail?
6 MR. CONRAD: Objection, relevance.
7 THE COURT: Well, overruled.
8 THE WITNESS: I remember hearing on the news what had
9 happened, and my heart went out to the victim's families as well
10 as Mark, because I did not know -- I did not know him to be that
11 type of person, and it was very disturbing as well as a shock.
12 I wrote Mark a letter to, not to find out what happened,
13 not to hear any side of the story, but to pretty much lift his
14 spirits because I could imagine what he was going through at
15 that time as well.
16 MR. WILLIAMS: Thank you, no further questions.
17 MR. CONRAD: No questions.
18 THE COURT: Thank you, ma'am, come down, call your next
19 witness.
20 MR. WILLIAMS: Next witness will be John Thomas
21 Barnette, please.
22 THE COURT: All right.
23 JOHN THOMAS BARNETTE
24 being first duly sworn, was examined and testified as follows:
25 BY MR. WILLIAMS:
440
1 Q. Would you tell the jury your name, please, sir?
2 A. John T. Barnette.
3 Q. John Barnette?
4 A. Yes.
5 Q. How are you related -- do you go by Tom or John?
6 A. Thomas is my middle name.
7 Q. I think you have to move a little closer, not too close
8 to that microphone, where you are there is fine. Can you hear
9 me okay?
10 A. Yes.
11 Q. Thank you, sir.
12 A. John Thomas, Tom nickname.
13 Q. Last name is Barnette?
14 A. Right.
15 Q. And how are you related to Derrick Barnette?
16 A. Grandfather.
17 Q. And you are Mark's -- how are you related to Mark
18 Barnette seated next to me?
19 A. Grandson.
20 Q. And his -- Derrick Barnette, who is Derrick Barnette?
21 A. My son.
22 Q. So you are Derrick Barnette's father?
23 A. Right.
24 Q. Can you hear me okay?
25 A. Yes.
441
1 Q. Okay. How old are you, sir?
2 A. 68.
3 Q. Where do you live?
4 A. I live in Charlotte, but I might add if you don't mind,
5 I been retired 28 years, so when I retired I came back the
6 Charlotte.
7 Q. Did you ever spend much time around Mark Barnette seated
8 next to me?
9 A. Yes, I did. When he was between 3, 4, 6 and 11 and 12,
10 I spend quite a bit of time.
11 Q. You say, 3, 6, 11 and 12, what are you referring to?
12 A. The years old.
13 Q. The different ages of Mark Barnette?
14 A. Yes.
15 Q. Okay. And did you know Mark and Mario very well while
16 they were growing up?
17 A. Yes.
18 Q. Did they ever come -- strike that. Did you ever live in
19 Philadelphia?
20 A. Yes, I did.
21 Q. And when was that?
22 A. 24 years, from '67 until '92, let's see, '92, yeah.
23 Q. Did you ever -- did Mark Barnette ever come to
24 Philadelphia to visit with you?
25 A. Yes, he did.
442
1 Q. Did you ever see Mark Barnette at Christmastime?
2 A. Yes, I did, I spent quite a bit of time going there
3 those ages, I forgotten now what age he flew over there on the
4 plane, but he came over several times.
5 Q. How did you -- how did Mark act when he was with
6 you -- strike that question.
7 Did you know Mark much when he was around the age of 14?
8 A. I believe at that time, I don't know when they went to
9 Atlanta, but it was after the divorce, but I can tell you this,
10 he was interested in historical things, and I took a week off to
11 take him to the zoo, different places so he would be able to
12 explain to his classmates what he saw there. And I was hoping
13 that would stick because I thought he was very intelligent at
14 that age and he wanted to do something in life, and I
15 can't -- I'm shocked, I mean.
16 Q. You are shocked?
17 A. I don't believe --
18 MR. WALKER: Objection.
19 THE COURT: Sustained.
20 MR. WILLIAMS: Objection.
21 THE WITNESS: I beg your pardon.
22 THE COURT: Just answer the questions that you are asked
23 and don't volunteer anything.
24 MR. WILLIAMS: I don't know why I objected.
25 BY MR. WILLIAMS:
443
1 Q. Tell the jury what you -- what kind of person was Mark
2 Barnette?
3 A. When he was with me, around me, I don't -- I can't
4 remember him even -- I didn't see anything wrong with him really
5 other than he liked historical places and he wanted to see what
6 he could and I tried to show it to him.
7 Q. Was education important to you?
8 A. Yes, it was.
9 Q. Did you -- was it your opinion that education was
10 important to your children?
11 A. Yes.
12 Q. Was there ever a time one night when the police called
13 you and asked you if Mark could stay with you?
14 A. Yes, after I came -- after I retired.
15 Q. Tell the jury about that, please.
16 A. One night, I don't know what time it was, maybe 10:00,
17 10:30, 11:00 I got a call, and it must have been the officers, I
18 guess, and she wanted to know if he could come up and spend the
19 night. And I said sure, what is wrong. And he said well we
20 having an argument. So I said all right, so when he came that's
21 the only thing that he told me that they were having little
22 argument.
23 Q. Who was having the argument?
24 A. Who was in the house, I don't know, in the house, they
25 didn't tell me.
444
1 Q. Did Mark tell you anything about what was going on in
2 the house and why he was there?
3 A. Just said they had a little argument, and so I asked him
4 did he want anything to eat, I don't know whether he did or
5 not. Anyway he finally went to sleep and said wake me up
6 because I got a job to go to in the morning. And I said all
7 right, and so I did, and I took him to get the bus.
8 Q. Have you seen Mark much since he has been back from
9 Georgia?
10 A. No, I only saw him maybe from Georgia about three times,
11 I guess, I don't know, four. But like I told you before, I
12 spent a lot of time with them between four, six, and 11, 12.
13 Q. All right, sir, thank you very much.
14 MR. WILLIAMS: No further questions.
15 MR. WALKER: No questions.
16 THE COURT: Thank you very much sir, come down, you are
17 all through. Call your next witness.
18 MR. WILLIAMS: We call Mable Johnson Your Honor.
19 MABLE BARNETTE JOHNSON
20 being first duly sworn, was examined and testified as follows:
21 DIRECT EXAMINATION.
22 BY MR. WILLIAMS:
23 Q. Can you hear me all right?
24 A. Yes, I can.
25 Q. Will you tell the jury your name, please?
445
1 A. I'm Mable Barnette Johnson.
2 Q. And how are you related to Mark Barnette seated next to
3 me?
4 A. I am his great aunt.
5 Q. And are you related to Derrick Barnette?
6 A. Yes, I am.
7 Q. How are you related to him?
8 A. He is my nephew.
9 Q. Do you have any children of your own?
10 A. No biological children at all.
11 Q. Where do you live now?
12 A. At 1926 Thorn Church Road in Charlotte, North Carolina.
13 Q. And what have you done, what did you do? Did you --
14 what type of work did you do in the past?
15 A. I worked in a photographic lab.
16 Q. Did you ever teach Sunday school?
17 A. Yes.
18 Q. And how many years did you do that?
19 A. I just can't recall, it was at an early age.
20 Q. And Thomas Barnette is who?
21 A. He is my brother.
22 Q. Is that the gentleman who just testified?
23 A. Yes.
24 Q. You just saw him?
25 A. Yes.
446
1 Q. Do you and he live in the same home or a separate house?
2 A. Separate.
3 Q. How old are you ma'am, if you don't mind me asking?
4 A. I'm 75.
5 Q. Can you tell the jury what you know about Mark Barnette,
6 the young man seated next to me, when you knew him, how much
7 time you spent around him as he was growing up?
8 A. At different intervals at an early age, he would do
9 visitations with my sister and I who lived next door.
10 Q. And your sister was who?
11 A. Hattie Adams who is deceased.
12 Q. And would Mark come and visit over there?
13 A. Yes.
14 Q. During what time of the year, summer, fall, winter what?
15 A. Mostly summer.
16 Q. And how old was Mark when he would come visit you?
17 A. Oh, he started visiting before school, before school
18 age.
19 Q. When Mark would come visit, would he ever go to church
20 with you?
21 A. Yes.
22 Q. How often?
23 A. He would go to church with us, and we would have Bible
24 school and carry him with us.
25 Q. Did you have anything to do with teaching Bible studies?
447
1 A. Not at that particular time.
2 Q. Okay. Tell the jury whether or not Mark became
3 interested in the church at that time?
4 A. Seemingly he was interested, whenever we had a program
5 or anything he would always recite.
6 Q. Would he recite verses from the Bible back then?
7 A. Yes.
8 Q. How old was he?
9 A. Must have been at that time about nine I imagine.
10 Q. Were you aware about -- did you know anything about some
11 paternity or blood tests that were done?
12 A. Not at first I didn't.
13 Q. When did -- did you find out about that later?
14 A. Later.
15 Q. Who told you?
16 A. It was just heard through the family.
17 Q. Did that change or effect you in any way as to how you
18 felt about Mark?
19 A. No, it didn't.
20 Q. Do you remember when Mark came to your house one night
21 when the police were involved?
22 A. I remember him coming but not directly to my house.
23 Q. Whose house was that?
24 A. My brother's.
25 Q. Was it nearby your house?
448
1 A. Next door.
2 Q. Close to --
3 A. Next door.
4 Q. Next door?
5 A. Yes.
6 Q. Did you see the police come up to the house?
7 A. No, I didn't.
8 Q. Did you ever talk to Mark about that incident?
9 A. No, I never did.
10 Q. Do you love Mark?
11 A. Yes, I do.
12 Q. Do you still love him?
13 A. The same as the beginning.
14 MR. WILLIAMS: No further questions.
15 MR. WALKER: No questions.
16 THE COURT: Thank you, ma'am. You are all through,
17 thank you ma'am.
18 MR. LAUGHRUN: We call Elizabeth A. Joye. May I have a
19 moment to go get her.
20 THE COURT: Yes, sir.
21 ELIZABETH A. JOYE
22 being first duly sworn, was examined and testified as follows:
23 DIRECT EXAMINATION
24 BY MR. LAUGHRUN:
25 Q. Would you state your full name?
449
1 A. Elizabeth A. Joye.
2 Q. And you are employed with the Charlotte Police
3 Department?
4 A. Yes, sir.
5 Q. Patrol officer?
6 A. Yes.
7 Q. How long have you been so employed, ma'am?
8 A. Six years.
9 Q. And what is your current duty assignment now?
10 A. Patrol.
11 Q. Are you assigned to a particular section of Charlotte?
12 A. Adam II, it's behind the airport to the river all the
13 way up to the Park Road Shopping Center.
14 Q. That would include West Boulevard?
15 A. Yes.
16 Q. For the record, Charlotte is divided for various teams,
17 Adam, Baker, Charlie, David; is that correct?
18 A. Yes.
19 Q. And Adam II is a section of that; is that right?
20 A. Yes.
21 Q. Is it fair to say that Adam II division is the highest
22 calls for service division in the city?
23 A. That's what I hear.
24 Q. Let me take you back to an incident that took place back
25 in 1993 involving Mark Barnette, you know Mark, do you not?
450
1 A. Yes, sir.
2 Q. Had occasion to talk with him?
3 A. Yes, sir.
4 Q. Before the Alesha Chambers incident, you are familiar
5 with that incident?
6 A. Yes, sir.
7 Q. Did you have a chance to see Mark before that incident?
8 A. Yes, sir, I did.
9 Q. And tell the members of the jury what happened?
10 A. It was a call for service on West Boulevard, across from
11 Boulevard Homes, I'm not sure of the address, some kind of
12 conflict in the house. We found our way to Mark's house, and
13 his mother wanted him to leave, actually the whole family wanted
14 him to leave. He had thrown a lamp down the stairs, and I'm not
15 sure what all happened at the house, but I remember his mother
16 was saying that he had to go.
17 So we rounded him up and got him a place to go, called
18 across town, and he was able to go and stay with his grandmother
19 is what he told me. Before we went, he picked up his clothes
20 and put everything in the back of the car, cried alligator tears
21 as I recall, hugged his brother and we left. And we talked all
22 the way across --
23 Q. Let tell me stop you. When you say he cried alligator
24 tears, you mean, I take it, he was pretty upset?
25 A. Yes, he was pretty upset.
451
1 Q. Did you think that was sincere?
2 A. He seemed to be.
3 Q. Now, when you said you took awhile to get up there is
4 that because it's a winding road up the house there?
5 A. I didn't know where I was going and it was all away
6 across town, so it took us time to get there, and he had to give
7 directions.
8 Q. When you say you went to the residence, that's 3413 West
9 Boulevard?
10 A. I guess it is, I don't recall the address.
11 Q. You mentioned to an investigator with our case that you
12 knew Mark and said that you knew Mark needed attention and love,
13 what did you mean by that?
14 A. I didn't say that.
15 Q. Okay, I thought in the statement you said that Mark
16 needed some attention, is that correct?
17 MR. CONRAD: Objection to what she stated out of court.
18 THE COURT: Sustained.
19 BY MR. LAUGHRUN:
20 Q. Did you ever make that statement?
21 A. I don't think so.
22 Q. When you got to the house where Mark was when his mom
23 asked to leave, what did the house smell like?
24 A. I noticed a strong odor of alcohol before we even got to
25 the house. There is several houses up in there, but it smelled
452
1 like a brewery as I came up through -- it's not paved, it's all
2 dirt road.
3 Q. Lot of ruts in the road?
4 A. Yes.
5 Q. When you got there, you said that Mark was crying
6 alligator tears?
7 A. Not when I got there as we left, when he realized he was
8 going to have to go.
9 Q. Now, when you again had occasion to respond to a call
10 for service there, is that right?
11 A. Not there.
12 Q. No, no, for Alesha Chambers?
13 A. Yes.
14 Q. And with that you talked to Mark on the phone, is that
15 right?
16 A. Yes.
17 Q. And you were I think instrumental in talking with him,
18 because he knew you?
19 A. He knew me, I identified myself when he called back.
20 Q. In fact you heard from Officer Adamo that she was there?
21 A. No, Adamo wasn't there, I called her.
22 Q. And while you were going through the paperwork, Mark
23 called you, is that correct, Mark called the residence?
24 A. Yes. We were doing paperwork.
25 Q. And you talked to him on and off for an hour?
453
1 A. It seemed like an hour.
2 Q. And I believe you said at some point that he was very
3 upset over his mother's personal life?
4 A. Her life style, yes.
5 Q. And you talked with him about that on the phone?
6 A. Talked with him about a lot on the phone.
7 Q. That's one of the things that you talked about, is that
8 right?
9 A. That's one of the things that he talked about.
10 Q. You took a statement, I believe, that night, Officer
11 Joye, did you not, from Mr. Barnette?
12 A. From Mr. Barnette, no, I don't know when they got him.
13 Q. The supplement?
14 A. I did the supplement, yes.
15 Q. Did you ask Mr. Barnette about his relationship with his
16 mom during that supplement, do you recall?
17 A. I didn't ask him about his mother, he brought it up, and
18 I just wrote down some of the things I remember him saying.
19 Q. Did he tell you that he was upset over her life style,
20 she drinks all day, does drugs, quit her job to take care of her
21 alcoholic father?
22 A. That's his words.
23 Q. And you wrote those down?
24 A. That's what he told me.
25 Q. And did you also write in your report that you quote, I
454
1 found him sincere, intelligent, sensitive and very upset over
2 his mother's personal --
3 A. I was writing about the first incident that I had met
4 him, and I saw something different this time and I just felt
5 like I had to equate that to what was happening that time.
6 Q. And you said the suspect did not smoke, drink or do
7 drugs, but it was obvious to this RO?
8 A. That's me.
9 Q. Reporting officer?
10 A. Yes.
11 Q. The suspect was in emotional trouble?
12 A. Yes.
13 Q. And that suspect you referred to was Mark?
14 A. Yes.
15 Q. And RO is reporting officer, that was you?
16 A. Yes, sir.
17 MR. LAUGHRUN: Thank you, Judge Potter.
18 THE COURT: Any questions.
19 CROSS-EXAMINATION.
20 BY MR. CONRAD:
21 Q. Officer Joye, when you interviewed -- strike that. When
22 you first went to West Boulevard and you said the defendant
23 cried, was he crying when you left the premises?
24 A. Yes.
25 Q. He wasn't crying when you arrived there and he had to
455
1 go?
2 A. No.
3 Q. Now, when you -- did there come a time when you
4 monitored a call between the defendant and his girlfriend,
5 Alesha Chambers?
6 A. Yes.
7 Q. Is that the night that he broke into her apartment and
8 dragged her off?
9 A. Yes, sir.
10 Q. And was the purpose in monitoring that call to try to
11 apprehend the defendant?
12 A. Yes, we were having him trying to find the number that
13 he was at, and they in fact found the number he was on the phone
14 so long, but they couldn't find him. It must have been
15 cellular.
16 Q. At that point you responded to West Boulevard, he wasn't
17 there?
18 A. Off of Watson -- the officer went down and he fled from
19 the scene, Alesha was there and they brought her back.
20 Q. He fled from the scene but he was calling Alesha
21 Chambers back?
22 A. From somewhere.
23 Q. And you couldn't locate him that night?
24 A. Nope.
25 Q. And during that conversation, did you monitor the call
456
1 between him and Alesha Chambers?
2 A. I listened on the other end a couple times.
3 Q. Was he talking normally and coherently in the
4 conversation to Chambers?
5 A. I didn't listen on the conversation with Chambers. I
6 listened -- I can't recall which one I listened on, I listened
7 to several calls. He talked to my sergeant, he talked to
8 Alesha, and I am not sure which one it was I was listening to,
9 but during that conversation he would cry one minute and he
10 would plead that he couldn't live without her and everybody was
11 interfering with his life with her, and he didn't understand why
12 she was keeping him away.
13 Q. Was he complaining about her telling the police about
14 him kicking in the door?
15 A. He told me he didn't kick in the door. I asked him, and
16 he said he didn't kick in the door.
17 Q. Said he didn't kick in the door?
18 A. Said he didn't kick in the door, and I looked at the
19 door, and earlier I looked at the door, it was splintered,,
20 laying in the floor, the entire dead bolt lock area. But it
21 looked like it had been replaced, and I thought, that's why it
22 was so easy and Mr. Chambers who was there said, no, he kicked
23 it in five weeks earlier and ran past them with like three
24 adults standing there watching him run by them.
25 Q. But the night of November 9th, he told you he hadn't
457
1 kicked in the door?
2 A. He told me he didn't.
3 Q. And when he was telling you that, was he crying then?
4 A. I don't recall. I just remember thinking, well,
5 (indicating).
6 Q. Did he tell you whether or not he had dragged Alesha
7 Chambers out of that apartment?
8 A. He didn't say he dragged her out, he said, you now,
9 I -- either he had something to talk to her about and he took
10 her out and didn't give her a chance to get her shoes on. I
11 don't recall what all he said about that, to tell you the truth.
12 Q. Is it fair to say at some point he was crying and at
13 some point he was talking normal?
14 A. He just wanted to talk to her, he really didn't care
15 what I had to say. He would talk a little bit, but he really
16 wanted to talk to her to make it all right, you know, to see how
17 she felt, I guess.
18 Q. And you didn't apprehend him that night?
19 A. No, sir.
20 Q. You described him as being in emotional trouble the
21 first time, did your opinion change as a result of the second
22 encounter?
23 A. It was the second encounter I was talking about, yes, I
24 knew that Alesha was in trouble too, I was scared for her. He
25 just -- from the looking at the door and the denial, and I knew
458
1 that we needed to get him so I tried to get him to come in
2 without any trouble, and he wasn't listening to me.
3 Q. Did you see a phone line pulled out on the floor?
4 A. When I got to the house, I thought it was B and E. The
5 more I looked the more concerned I became, because then he told
6 me about a niece who was supposed to have been home from work,
7 he started telling me what had happened previously with his
8 boyfriend about him crying outside the door following her to
9 work, some of the things that happened.
10 And I was convinced something had happened because there
11 was a butcher knife laying on the couch where someone had been
12 lying, the phone was stretched out across the floor, I didn't
13 see that it was pulled out, the TV was going, the door was ajar,
14 and of course it was splintered in the floor. So I knew that
15 something had happened, and when I started talking to him about
16 that, I felt like this is where he was. I called, the mother
17 said that the child was not down at her house, Aquilia's mother
18 said that she was not at the house, and so we sent an officer
19 down there. I just felt that strongly about it.
20 Q. When you talked to the mother and she said the child was
21 not at the house --
22 A. She said that Alesha wasn't there. I don't recall what
23 all was said, but she said she wasn't there, any way I just felt
24 like an officer needed to go by and check, and she was there.
25 MR. CONRAD: That's all I have.
459
1 REDIRECT EXAMINATION.
2 BY MR. LAUGHRUN:
3 Q. Officer Joye, you say in response to Mr. Conrad's
4 questions you thought he was in emotional trouble? What do you
5 mean by that?
6 A. All of the things that he was saying to me from what the
7 uncle was telling me, his behavior before that. It wasn't just
8 love, it was obsession. I even told him that they needed to get
9 her away, get her out of town because of his behavior.
10 Q. Now, being an officer, you have papered cases for the
11 DA's office?
12 THE WITNESS: Yes.
13 MR. CONRAD: Objection, beyond the scope of cross.
14 MR. LAUGHRUN: Judge, they asked about --
15 THE COURT: Overruled.
16 BY MR. LAUGHRUN:
17 Q. What, Investigator Joye, when a case is rejected by the
18 DA on paper, what does that mean, ma'am?
19 A. Means there is not enough evidence, is that what you are
20 asking?
21 Q. Yes.
22 MR. LAUGHRUN: Thank you, Your Honor.
23 MR. CONRAD: May I ask.
24 RECROSS EXAMINATION.
25 BY MR. CONRAD:
460
1 Q. Do you know that the jury found this man guilty of the
2 felonious restraint and misdemeanor breaking and entering as a
3 result of the events of that night?
4 A. Yes, sir.
5 THE COURT: Thank you, ma'am, come down, call your next
6 witness.
7 MR. WILLIAMS: Jean Barbour Hall.
8 JEAN OLIVIAN NDULY
9 being first duly sworn, was examined and testified as follows:
10 DIRECT EXAMINATION.
11 BY MR. WILLIAMS:
12 Q. Tell the jury your name, please?
13 A. Jean Olivian Nduly.
14 Q. How do spell your last name?
15 A. N D U L Y.
16 Q. Are you related TO Sonia Barnette?
17 A. Yes, sir.
18 Q. How are you related?
19 A. First cousins.
20 Q. Did you grow up around the family of Sonia Barnette?
21 A. Yes.
22 Q. How -- what kind of relationship was that? In other
23 words, where were when you grew up with --
24 A. I grew up, kind of a close night family, grew up with
25 like 14 cousins and we lived in three or four houses side by
461
1 side.
2 Q. Is that here in Charlotte?
3 A. Yes.
4 Q. Did you spend much time around Mark Barnette?
5 A. When he was real small, I took care of him.
6 Q. Why did you take care of him?
7 A. Sonia was in school, and I had just graduated from
8 school, and when she would take classes I would keep him during
9 the day with me.
10 Q. Other than when he was young and you took care of him
11 during that period of time, did you see much of him after that?
12 A. Off and on because Sonia and I would talk on the phone a
13 lot, or I would drop by their house and see them.
14 Q. How long a period of time did you actually take care of
15 Mark as a child?
16 A. Several months.
17 Q. Did you know Mark much as he grew older or did you see
18 much of him after that?
19 A. Until he got in his teens, I would see him.
20 Q. Where did you see him when he got into his teens?
21 A. They stayed in apartments not very far from where I
22 lived, and I used to stop by and see him.
23 Q. Who was living there then?
24 A. Sonia, and Mario and Vicci.
25 Q. Did you know Derrick Barnette at all?
462
1 A. Yes.
2 Q. So was this time that you just referred to after Sonia
3 and Derrick --
4 A. They had broken up, yes, but I had known Derrick when
5 they -- when Sonia was like 13 or 14.
6 Q. Did you know anything about the time when they moved to
7 Atlanta, Georgia or that area?
8 A. I knew when Sonia called me and told me that she was
9 going to be moving.
10 Q. Did you know anything about the relationship between
11 Sonia and her children?
12 A. Yes.
13 Q. Would you tell the jury what type of relationship that
14 was that you knew about?
15 A. Sonia was real close to the kids, they are always
16 hugging and kissing, that type.
17 Q. Did you see Mark -- did you see Mark when -- strike that
18 question.
19 Did you know that Mark went up to Virginia for some
20 period of time?
21 A. Yes.
22 Q. Did you see him during that period of time?
23 A. No.
24 Q. Did you see him when he came back from Virginia?
25 A. Yes.
463
1 Q. Have you ever met Robin Williams?
2 A. I met her on two occasions.
3 Q. Can you tell the jury what you observed about Mark when
4 he came back from Virginia in 1996, how he acted?
5 A. When I saw Sonia, she called me one day and I was ready
6 to go out, and is she asked me to come by to talk to Vicci, I
7 called him Vicci, that's the family name before he got into his
8 teens, everybody called him Vicci. And she asked me to talk to
9 him, and I asked what was wrong, and she said that he is kind of
10 moping around the house, won't go to work, and he is going from
11 the bedroom to outside, all day long.
12 And I said I will come by and talk to him. And I went
13 out to the house that evening, and it was probably about 6:00,
14 and Vicci was laying across the bed. And I told him why are you
15 laying in the bed this type of day, get up, I said, I'm not
16 going to talk to you until you get up. So I went out of the
17 bedroom and went back into the kitchen where Sonia was, and when
18 I came back into the den area, Vicci came out and he sat down in
19 a chair. And I said, what is wrong with you, because usually he
20 greets me with a hug or a kiss.
21 Q. Usually he was affectionate?
22 A. Very affectionate and always smiling. He always had a
23 smile on his face.
24 Q. But this time, he was different?
25 A. That day he was different. He kind of like drug himself
464
1 and plopped down in a chair. And I asked him what was wrong,
2 and he said, did you know that me and Robin had broke up? And I
3 said, yes, your mother had told me. And I said, you know, you
4 will get over it, because everybody doesn't always love
5 everybody at the same time. I said, when I'm in relationships
6 like that, I play Patti LaBelle, I got a new attitude, and I
7 kind of shook his arms around and tried to dance with him a
8 little, and he kind of like just flopped his arms back down.
9 Q. Did he seem depressed to you?
10 A. Yes.
11 Q. Did you know Mark's children?
12 A. I had seen the kids one time.
13 Q. When did you see them?
14 A. Sonia called and told me the kids were there, and I went
15 out to see them. And I think she had had them there probably a
16 few weeks when I went out.
17 Q. What time of work do you do?
18 A. Right now, I work as a receptionist at an insurance
19 company, but I used to be a nurse assistant for almost 20 years.
20 Q. Did you know about the blood test incident, paternity
21 incident?
22 A. Not until this happened.
23 MR. WILLIAMS: No further questions.
24 MR. WALKER: No questions.
25 THE COURT: Thank you, ma'am, come down. Call your next
465
1 witness.
2 MR. WILLIAMS: Jessie Cooper,
3 JESSIE COOPER,
4 being first duly sworn, was examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. WILLIAMS:
7 Q. Can you hear me all right, sir, can you hear me all
8 right?
9 A. Yes, sir.
10 Q. Tell the jury your name, please.
11 A. Jessie Cooper.
12 Q. How are you related to this young man seated next to me,
13 Mark Barnette?
14 A. My grandson.
15 Q. Were you married to Pearl Cooper?
16 A. Yes, sir.
17 Q. How long had you and she been -- how long had you and
18 she been separated, Pearl, before she was murdered?
19 A. I don't recall, sir. I'm sorry, but I don't really
20 recall exactly how long.
21 Q. How old are you, sir, if you don't mind me asking?
22 A. 66.
23 Q. All right, sir. Did you used to be in the service?
24 A. Yes, sir.
25 Q. The military?
466
1 A. I did.
2 Q. What branch of the military?
3 A. I was in the Army.
4 Q. Were you injured in --
5 A. Combat.
6 Q. Pardon me?
7 A. I was injured in combat in Korea.
8 Q. As a result of your combat injury, were you -- did you
9 get out of the service?
10 A. I was retired out of the service according to my
11 injuries. I was wasn't able to do my duties as a rifle man
12 anymore because of injuries to my hand and my right eye.
13 Q. Did you lose, your patch over your right eye, is that a
14 result of your --
15 A. The jury.
16 Q. The injury?
17 A. Yes, sir.
18 Q. Will you tell the jury about your grandson, Mark
19 Barnette, and what it was like growing up over there in the
20 home?
21 A. Well, he didn't grow up around me, Mark Barnette, just
22 really didn't grow up around me.
23 Q. You weren't there in his early years?
24 A. No, sir, he wasn't around me in his early years.
25 Q. When did you start spending some time around Mark?
467
1 A. Well, after he came from Georgia.
2 Q. Can you tell the jury what it was like after he came
3 back from Georgia?
4 A. He was always quiet, kept to himself. And when he'd go
5 to work and then when he'd leave his work, he would always go
6 into his room and stay to himself.
7 Q. During the time that you were around him when he came
8 back from Georgia, was some of that time spent over there at
9 West Boulevard?
10 A. It was, he was staying there some time.
11 Q. Who else was living at the house on West Boulevard with
12 you and Mark?
13 A. His mother and his brother.
14 Q. Anybody else?
15 A. (No response.)
16 Q. Was there a Tina Davis ever live over there or stay over
17 there?
18 A. No, she stayed before he came back. It was only Tina
19 Davis, Mario and myself before his mother and Mark came from
20 Georgia.
21 Q. After you all were living over there on West Boulevard
22 after he came back from Georgia, tell the jury what it was like
23 in the home, how people were -- did people get along or the
24 family get along, or what was it like?
25 A. Everyone got along fine.
468
1 Q. Were there times when there were fights going on?
2 A. In the house?
3 Q. Yes.
4 A. Not to my knowledge.
5 Q. Well, were the police ever called over there?
6 A. Oh, they was called there because of a disturbance next
7 door, some kind of disturbance they had which I think I was
8 sleeping when they was called -- oh, yes, I recall now. He got
9 shot in the house and the police was called.
10 Q. Were you there when he was shot in the house?
11 A. I was.
12 Q. And who did the shooting?
13 A. It was a grandnephew of mine.
14 Q. Did you used to drink a lot of Pabst Blue Ribbon beer?
15 A. I did.
16 Q. When did you stop?
17 A. Just stopped.
18 Q. When did you stop drinking that beer?
19 A. I don't know, a few years ago.
20 Q. Do you recall there being drinking in the house besides
21 you when you were living there?
22 A. Drinking like what?
23 Q. Alcohol?
24 A. No. If they drink alcohol in the house, they always was
25 hiding it. Every now and then, I would see a bottle of alcohol.
469
1 Q. What were the kinds of things that you and Mark Barnette
2 seated next to me, your grandson, did, did you ever do anything
3 together?
4 A. No. I can't follow you very --
5 Q. Did you go to church?
6 A. Oh, yes, he used to go to church with me. I go to
7 church as time allows me to get up on a Sunday, try to make it
8 to Sunday school and church, and he was the only one that would
9 go with me. And then sometimes he stayed up a little late at
10 night, and then all of a sudden he just kept on staying up late
11 at night he say, and he just stopped going.
12 Q. What church did you go to when you were going to church?
13 A. When I was going?
14 Q. Yes, sir, what church did you go to?
15 A. I'm still going, it's Moore's Sanctuary Benevolence.
16 Q. And was that the church that you said that Mark would go
17 with you to?
18 A. Right, that was the one.
19 Q. Was there any other member of the family that would go
20 to church with you besides Mark on any regular basis?
21 A. Any other member of the family irregardless of whether
22 they are in the home or not? I mean, some that not in the home
23 that would go to church also there. See, my daughters don't
24 stay with me, but they also attends at times.
25 Q. When did -- did Mark ever stop going to church with you?
470
1 A. Yes, he stopped.
2 Q. When did he stop?
3 A. Just before this stuff happened, he just stopped. He
4 was always, like I say, he was always staying up late and he
5 just stopped. He would always tell me he couldn't go because he
6 stayed up late, because I would be leaving to get to Sunday
7 school about 10:00 o'clock in the a.m.
8 Q. Did you know Robin Williams?
9 A. No. Robin Williams? Not too good.
10 Q. Did you know that Mark went up to Virginia and stayed
11 with her for some time?
12 A. Well, I didn't know her too good, but I do know that he
13 went up to Virginia and stayed with --
14 Q. Now, did you ever go up to Virginia to get Mark's
15 belongings and bring him back to Charlotte?
16 A. No. He took me up there. He rented a truck up there to
17 help bring his belongings back to Charlotte.
18 Q. Was that in April of 1996?
19 A. I suppose so.
20 Q. Okay. How did Mark act after he got back from Virginia,
21 was he the same or was he different?
22 A. He was about -- well, that's when he -- he never would
23 be around me too much.
24 Q. How would Mark act when he came back from Virginia, were
25 you there in the house -- strike the question. When Mark came
471
1 back from Virginia, were you there in the house on West
2 Boulevard?
3 A. Right.
4 Q. Was Mark there?
5 A. Right.
6 Q. Did he live there?
7 A. Right.
8 Q. What did you see him do, did he go anywhere or did he
9 stay there, how did he act?
10 A. He just stayed around the house mostly when he was
11 around, you know. Late at night, he would get up and watch a
12 couple of TV programs, and sometimes I would wake up and go and
13 tell him that's not the right thing, it don't happen in real
14 life, and then I would go back to bed.
15 MR. WILLIAMS: No further questions.
16 MR. WALKER: No questions, Your Honor.
17 THE COURT: Thank you, sir, thank you, step down. Call
18 your next witness.
19 MR. WILLIAMS: Shondra Nero, Your Honor.
20 SHONDRA NERO,
21 being first duly sworn, was examined and testified as follows:
22 DIRECT EXAMINATION
23 BY MR. WILLIAMS:
24 Q. Will you tell the jury and the Court your name, please?
25 A. My name is Shondra Nero.
472
1 Q. How old are you?
2 A. 26.
3 Q. 26?
4 A. 26.
5 Q. Are you related to Mark?
6 A. Yes, that's my cousin.
7 Q. And your father's name is what?
8 A. Jeff Nero.
9 Q. And your mom's name is?
10 A. Tessie Nero.
11 Q. Tessie Nero?
12 A. Uh-huh.
13 Q. How long have you known Mark Barnette?
14 A. Pretty much since he was born.
15 Q. Grew up together?
16 A. Not as far as like a close family, but yeah, we pretty
17 much grew up together in the younger years.
18 Q. Can you just briefly tell the Court about you growing up
19 with Mark and that relationship and the kinds of things you did
20 and how Mark was as you grew up together?
21 A. Well, basically we were all typical children that grew
22 up together. Mark at the time when my sister and I and Mark
23 would hang out together, you know, he was like the baby. And we
24 did normal kid stuff, you know, we went to the park, we went to
25 the zoo. I mean, we just did everything. We didn't do anything
473
1 out of the norm or anything like that, we were just normal
2 family that just did things together. He had a good interest
3 in -- he liked model cars and things like that, and he liked to
4 draw and pretty much, you know, normal happy kid. We had a
5 normal childhood, just like anybody else.
6 Q. That's what -- was that in Charlotte?
7 A. Yeah.
8 Q. And --
9 A. Well, this was when pretty much when we lived in
10 Columbia and they lived here in Charlotte at the time and then
11 when we moved to Charlotte, and that's pretty much when the
12 family started spending more time together, because we lived on
13 two different sides of town. But pretty much like every Sunday,
14 we would all get together over at their house or they'd come
15 over to our house for dinner, things like that, and the kids
16 would play outside while the adults were in the house.
17 Q. And what ages were you and Mark when you were in
18 Columbia, South Carolina?
19 A. Off the bat, I have to say I was probably around like 7,
20 seven or eight maybe, and Mark is like I think two or three
21 years younger than I am.
22 Q. And as you grew older, did you know, spend much time
23 around Sonia?
24 A. Only if we went to spend the weekend together with my
25 mom or whatever, if they were going out of town, we would maybe
474
1 spend the weekend with them.
2 Q. Did you spend much time around Derrick Barnette?
3 A. No, just, I mean, I really can't remember a lot about
4 our childhood, because like I said, I mean, they were just
5 normal. We never did anything special or anything. You know,
6 like I said, I have been sitting here trying to rack my brain
7 trying to think about all this time just trying to think of
8 something to point out as we were growing up, and there's just
9 nothing. Like I said, I mean, we just played together. Like I
10 said, the parents were always sitting in the kitchen doing their
11 thing, playing cards or whatever. We would just like play
12 outside and stay outside until it got dark, and then when it's
13 time to eat, we'd all come inside.
14 Q. Did you see any fights between Sonia and Derrick
15 Barnette?
16 A. No.
17 Q. You weren't there when that occurred?
18 A. Right.
19 Q. What was Mark like -- strike that. Did you spend much
20 time around him as he grew older until the late teens and until
21 he got about 14 years old before he moved to Atlanta, were you
22 around him much during that period of time, before he moved to
23 Atlanta?
24 A. Not really. I mean, like sometimes we would go out
25 together, like there would be teen clubs and things like that
475
1 that we could go to. But it wasn't really like we were
2 inseparable or anything like that, you know, we'd just spend
3 like a couple hours at a time like weekends or something like
4 that. I can't really say that we were really like together all
5 the time.
6 Q. Growing up around Mark, how would you describe his
7 personality as you saw it during the time that you were growing
8 up?
9 A. He always had a little silly sense of humor, but, you
10 know, like I said, I mean, he was very artistic. You know, he
11 would -- everybody always thought he was the cute one, the
12 little pretty boy of the family, so, you know.
13 Q. Did you and he ever have any problems?
14 A. No, never.
15 Q. Was he ever abusive or mean to you?
16 A. No, never.
17 Q. Did you see ever see any violent side of him?
18 A. No, just, I mean, like the typical, you know, temper
19 tantrums when you couldn't have your cookies before dinner or
20 things like that, but that's pretty much.
21 Q. So did you know Mark at all when he was in Atlanta?
22 A. As far as from the time that they had moved to Atlanta,
23 I could probably say I've only probably made the trip down to
24 Atlanta maybe like four or five times in the course of that
25 time. And we would talk on the phone every now and again. I
476
1 mean, probably, like the time frame, we'd probably talk like
2 maybe two or three times like maybe within a six-month period,
3 you know, just to call and see how we were doing, things like
4 that.
5 Q. Did he ever drink much alcohol around you when you were
6 around him?
7 A. No, he couldn't even hold down a 40-ounce without
8 getting sick, so --
9 Q. And did you see anything in his personality, any signs
10 at all during the times that you were around him that would have
11 led you to believe that he was capable of doing what he did?
12 A. Absolutely not. I mean, there is just no -- the
13 incident that happened, that was not my cousin. That's all I
14 can say. I mean, the Mark that I know and the Mark that we know
15 and love would not be capable of doing what has happened,
16 honestly.
17 Q. After this happened, did he call you?
18 A. Yes, he did.
19 Q. Did he say where he was calling you from?
20 A. He just told me that he was at like a trucking
21 restaurant or some little truck stop or something like that.
22 Q. Did he tell you what had happened?
23 A. I can't remember the exact conversation, but pretty much
24 basically yeah, he had told me that he had done it and that, you
25 know, he was tired and that it was just like a bad dream, that
477
1 it just didn't seem real him, that he just pretty much felt like
2 it didn't happen.
3 Q. Did you have some contact with police or FBI?
4 A. Yes, they came to my house.
5 Q. Did they search your house?
6 A. No, they did not.
7 Q. Did they ever search your house?
8 A. No, they did not.
9 Q. When did they come to your house?
10 A. They came to my house about a month, anywhere from three
11 weeks to a month ago.
12 Q. A month ago?
13 A. Anywhere from three weeks to a month ago.
14 Q. But back in 1996, June or thereafter, did they ever come
15 to your house then?
16 A. No.
17 Q. Back in 1996, did the police ever search your house back
18 then?
19 A. No, they've never come to my house.
20 Q. Did they ever ask you to come over there in 1996?
21 A. No, I never heard -- nobody has ever contacted me.
22 Q. Did you know anything about the -- strike that. When he
23 called you and you just told the jury about the time he called
24 you, that was after the killing of Robin Williams?
25 A. Correct.
478
1 Q. Is that correct?
2 A. Yeah.
3 Q. Going back to April of 1996, do you know anything about
4 the fire incident?
5 A. Only from -- I found out after the fact.
6 Q. Okay.
7 A. After it had happened.
8 Q. All right. Who did you find that out from?
9 A. Mark told me.
10 Q. And did he ever come over there and spend any time with
11 you between April and -- or after April and between April and
12 June?
13 A. After the cocktail bombing or whatever?
14 Q. Yes?
15 A. Yeah, he came and he stayed with me for a while.
16 Q. How did he act when he was over there then, was it the
17 same old Mark or how would you describe him?
18 A. No. He was more or less just numb. I mean, he was --
19 he wouldn't talk, he wouldn't eat, he was just very quiet to
20 himself. I'd try to talk to him, he didn't want to talk. All
21 he -- he was just tired. He just wanted to rest. I tried to
22 get him to go outside and get some air, walk around, do
23 something, you know, try to find out what was going on, and he
24 was just depressed. He was just upset, you know. I mean, he
25 was in love with Robin, and, I mean, he thought that she was
479
1 going to be the one. And, you know, I guess he took that
2 relationship breakup extremely hard, because I mean, he did like
3 a meltdown, because I've never seen him like that. I mean, and
4 he's been in several relationships, but I've never seen him this
5 dedicated into that relationship. And I didn't even really know
6 her that well, but I knew how he felt about her. And like I
7 said, I mean, he wouldn't do anything for several days. He just
8 moped around, and I would sit there and try to talk to him to
9 try to get him motivated to get back into the work field and
10 everything.
11 MR. WILLIAMS: That's all, thank you.
12 THE COURT: Any questions?
13 MR. CONRAD: Thank you, Your Honor.
14 CROSS-EXAMINATION
15 BY MR. CONRAD:
16 Q. Ms. Nero, how did you first learn about the fire bomb,
17 the very first time?
18 A. The very first time?
19 Q. Uh-huh?
20 A. Was way after it had happened, because nobody in our
21 family even believed that it was possible that he could drive
22 all the way to Virginia and get back that fast with his mom and
23 the whole family being at home asleep and then wake up and him
24 be there.
25 Q. Do you remember hearing about it from Sonia?
480
1 A. No, I heard about it -- I heard it on the television,
2 but nobody -- we never believed that it was possible. Nobody
3 never believed it until he told me that he did, in fact.
4 Q. You heard about it on a telephone -- do you know Steve
5 Austin?
6 A. No. I just know that he's Mark's friend, I don't know
7 him personally. He's been over to my mom's house a couple of
8 times and that's the only way I've ever seen him, but I don't
9 know him.
10 Q. Isn't it a fact that when the defendant first stayed at
11 your apartment after the fire bombing, he was denying that he
12 had done it?
13 A. Yeah, he was -- I mean, it was never really discussed.
14 I mean, you know, he didn't sit there -- I never really
15 confronted him. I asked him. Like I said, he was in one of
16 those comatose states. He was just in his own little zone, so
17 he didn't want to talk about anything unless he was ready to
18 talk about anything.
19 Q. Do you remember talking to Agent Modzelewski of the ATF
20 on December 31st, 1997?
21 A. Just a few weeks ago?
22 Q. Right.
23 A. Yes.
24 Q. The heavy-set, redheaded ATF agent?
25 A. I don't remember what they looked like, but I remember
481
1 talking to two of them.
2 Q. Man sitting right over here?
3 A. Yes, well -- yes.
4 Q. Do you remember telling him that you heard about it from
5 Sonia, that Mark was denying that he had anything to do with the
6 fire bombing?
7 A. That was before that he had admitted to me.
8 Q. And that's what I wanted to ask you about. Tell me
9 about the first time.
10 A. Like I said, I heard it over the TV, not over the
11 telephone. I heard it on the TV first. Sonia addressed me
12 about, you know, Robin. She just told me what had happened to
13 Robin, not that Mark did it.
14 Q. And tell the jury what Sonia told you about what
15 happened to Robin.
16 A. All I know at the time was that Robin's apartment, there
17 was a fire, Robin was in the hospital. At the time, I didn't
18 have any knowledge about it being a cocktail bomb at all. I
19 found out after the fact, and pretty much she just let me know
20 that Mark -- and then that they were looking for Mark and
21 thinking that he was --
22 Q. That's what Sonia told you?
23 A. Yes, that they thought that he -- yeah, that they were
24 trying to blame it on him, because like I said, at the time
25 nobody believed that he had done it. So she was mad because
482
1 they were accusing him of doing it, and nobody knew at the time
2 whether it was true or not.
3 Q. And this was during the time that he was at your house?
4 A. No.
5 Q. No?
6 A. No, because like I said, the week that he was staying
7 with us, that's when I found out was during the days of him
8 staying. It wasn't the first day that I went and picked him up
9 that he was accused of doing the cocktail bombing, it was during
10 the time that he was staying with us. And then when I was
11 informed that, in fact, that it was true and that it happened,
12 then my boyfriend took him home, because I didn't want any
13 trouble.
14 Q. Now, but at first he was denying that he had anything to
15 do with the fire bombing, correct?
16 A. He wasn't denying it, he just wasn't saying anything
17 about it. He didn't want to talk about it.
18 Q. Do you recall telling Agent Modzelewski that you were
19 upset with him because she believed the lie he initially told
20 her that he had nothing to do with it?
21 A. I never said that he said that he did not do it. I
22 never said that.
23 Q. Once you found out about it, you had your boyfriend take
24 him --
25 A. Once he -- once -- like I said, it was all accusations.
483
1 Like I said, the whole entire family was in denial of a
2 possibility of Mark being able to go to Virginia, get back, and
3 at that same time, in that little bit amount of time, I mean, it
4 just wasn't possible in our opinions, and plus, that's not
5 Mark. So first of all, he doesn't --
6 Q. So the whole family was in denial?
7 A. The whole family was in denial, because, I mean, Mark is
8 not capable of doing what he did. So why would we automatically
9 assume that he would go up there and do something as tragic as
10 he did, because that's not my cousin. He is --
11 Q. And he stayed at your apartment for that week?
12 A. Not the whole entire week, because like I said, when he
13 was ready to talk, the first couple of days that he stayed with
14 us, he didn't want to eat, he didn't talk, all he wanted to do
15 was rest.
16 Q. He made calls to Virginia from your phone, did he not?
17 A. I don't know, I have no knowledge of that. I mean, I
18 get my phone bill and I check it, but I never really -- I can't
19 even tell you what on my last months's phone bill let alone what
20 was back on it back in '96 or '3 or whatever.
21 Q. Well, when he was ready to talk to you about it, what
22 did he tell you?
23 A. All he did is he admitted that he did it, that
24 apparently he found out that she was seeing somebody--
25 Q. I'm not asking you for apparently, I'm asking you what
484
1 did he tell you about the incident?
2 A. He just told me that he admitted it, that he did it.
3 Q. That he did what?
4 A. That he did, in fact, cocktail bomb the apartment.
5 Q. And why did he tell you he did that?
6 MR. WILLIAMS: Objection as to why.
7 BY MR. CONRAD:
8 Q. What did he say to you about why he did that?
9 THE COURT: Overruled.
10 THE WITNESS: Why did he -- say that again.
11 BY MR. CONRAD:
12 Q. What did he tell you about why he did that?
13 A. He just apparently just wanted --
14 Q. I don't want to you tell me --
15 MR. WILLIAMS: Objection, Your Honor.
16 THE COURT: Wait a minute, wait.
17 THE WITNESS: Well, I mean, I can't give you exact word
18 by word.
19 THE COURT: Wait, everybody wait. Just start over,
20 answer the question.
21 THE WITNESS: I'm trying to, but --
22 THE COURT: Well, just a minute now. Wait until he asks
23 a question and then you answer it, okay?
24 THE WITNESS: Okay.
25 THE COURT: Go ahead.
485
1 BY MR. CONRAD:
2 Q. Tell the jury everything the defendant told you about
3 fire bombing her apartment.
4 A. I'm trying to think of exactly word by word, but it's
5 impossible to think word by word what was said because it was so
6 long ago. All I can tell you is that he admitted to me that, in
7 fact, that he did cocktail bomb. He was upset, and apparently
8 he did it out of being a jealous boyfriend to my understanding.
9 Q. Well, again, your using the words "apparently" and "to
10 my understanding." All I want you to --
11 A. I'm sorry, I'm not sure what words I can use, I'm just
12 trying to say it in my best words.
13 THE COURT: Wait, wait, slow down. Just let him ask a
14 question. He is asking you a specific question, not what you
15 think about.
16 THE WITNESS: Okay, okay. I'm getting confused here.
17 Okay, I'm listening.
18 BY MR. CONRAD:
19 Q. Whatever the defendant told you, that's what I want you
20 to tell the jury.
21 A. All right, and that's pretty much sums it up.
22 Q. He never told you why he did it?
23 A. Out of anger.
24 Q. Out of anger?
25 A. He was, you know, jealous boyfriend, I guess.
486
1 Q. Now, about six weeks later, Robin was killed. How did
2 you find out about that?
3 A. I found out about that on the news, on like the 6:00
4 o'clock, one of those early mornings, because I always sleep
5 with my TV on. So pretty much I found out through the news
6 first, and then I got a phone call from Sonia. I think I got a
7 phone call from Sonia.
8 Q. And what did Sonia tell you?
9 A. She let me know what had happened. And at that time, I
10 was unaware of the guy being shot as well.
11 Q. What did Sonia tell you?
12 A. She told me that Mark was accused of shooting Robin,
13 that Robin had been shot and murdered and that the police were
14 looking for him. And I think at the time, there was a detective
15 there at the house.
16 Q. In that six-week period of time when the fire bombing
17 occurred and the defendant stayed at your house, family was in
18 denial and then he admitted it to you and your boyfriend took
19 him back to West Boulevard, did you ever call the police?
20 A. No, I did not, because like I said, it was accusations
21 of that. And in my opinion, if the police department from West
22 Virginia called Charlotte Police Department to have him picked
23 up, then they would have gone out there to pick him up.
24 Q. Did you --
25 MR. WILLIAMS: Objection, let her finish answering the
487
1 question.
2 MR. CONRAD: It's not responsive, Your Honor.
3 THE COURT: What is that?
4 MR. CONRAD: I am just saying the answer is not
5 responsive to the question. I'm trying to ask a question.
6 MR. WILLIAMS: Your Honor, it's --
7 THE COURT: Let's start over again, Mr. Williams.
8 Everybody gets confused. You ask the question, you answer the
9 question. Don't be responding to something he didn't ask you.
10 MR. WILLIAMS: Your Honor, may I address the Court?
11 THE COURT: Yes, sir.
12 MR. WILLIAMS: I'm just asking, if Your Honor please,
13 for counsel for the government not to interrupt the witness
14 before she finishes answering the question. Thank you, Your
15 Honor.
16 THE COURT: I'm trying to get everybody to talk one at a
17 time, that's all we are going to do. Start over again.
18 MR. CONRAD: Are you done?
19 BY MR. CONRAD:
20 Q. Ms. Nero, my question to you is, once your cousin
21 admitted to you that he had, in fact, done that fire bombing,
22 did you then call the police?
23 A. No, I did not.
24 Q. Did you encourage him to turn himself in?
25 A. Yes, I did, and that was the reason for him going home,
488
1 so he could let his mother know, because it needed to come from
2 him instead of me telling her.
3 Q. What did you tell him as far as turning himself in?
4 A. To do the right thing. Pretty much, he wanted to sit
5 down and talk with his mother and he wanted to go home. And so
6 therefore, my boyfriend took him home so he could go and talk
7 with his mother before whatever decision he was going to make,
8 because at the time, it was, you know, an accusation. And like
9 I said, after I found out, that was when I told him he had to go
10 tell his mom and do the right thing.
11 Q. And he told you he was going to turn himself in?
12 A. Yes.
13 Q. Now, six weeks went by. Did you have any other contact
14 with him during that six-week period?
15 A. Only talking to him over the telephone. I've probably
16 seen him maybe a couple of times just going out there to visit
17 on Sundays during that process, so I probably maybe seen him
18 maybe two times before the incident happened.
19 Q. So you talked to him on the telephone?
20 A. Uh-huh.
21 Q. You saw him at least two times on Sundays?
22 A. Uh-huh.
23 Q. Did you have any conversation about turning himself in?
24 A. He never -- he went back into his little dark mole.
25 Like I said, I thought it was just accusation and, you know.
489
1 THE COURT: Ms. Nero, the question was, did he say
2 anything to you about turning himself in, yes or no?
3 THE WITNESS: Yes.
4 BY MR. CONRAD:
5 Q. What did he tell you about turning himself in?
6 A. He said he was going to turn himself in, I don't know.
7 Q. Now, did there come a time after Robin was murdered that
8 you got a call from the defendant?
9 A. After the murder?
10 Q. After the murder?
11 A. On his away from Virginia, that he called from the truck
12 stop.
13 Q. And did he tell you where he was when he called from the
14 truck stop?
15 A. He just told me, I think he said he was somewhere in
16 Tennessee at the time, just at a truck stop. He didn't tell me
17 what the name of it was, or I think he said he was going through
18 Tennessee or something like that.
19 Q. And he told you that he killed Robin?
20 A. He told me that it was just a bad dream, that he was
21 trying to wake up out of and that he was very tired.
22 Q. Did he tell you anything at all about Donnie Lee Allen?
23 A. No.
24 Q. Other than killing Robin, that's all he told you, did he
25 talk about getting back to Charlotte?
490
1 A. Yes, he did.
2 Q. What did he tell you about that?
3 A. He wanted to turn himself in. And he had told me that
4 he had a fourth of a tank of gas, and I don't remember if he
5 said anything about if he had any money or him or not, but he
6 wanted to turn himself in and he didn't want to get pulled by a
7 patrol car or whatever, he didn't want to get shot, that he
8 wanted to turn himself in. And the only thing that I could
9 suggest to him was to just drive as far, as close to Charlotte
10 as he could.
11 Q. On a quarter tank of gas?
12 A. At the time, that's what he told he, he had a fourth of
13 a tank of gas, that he was almost out of gas. And I just told
14 him to drive as close as you can get to Charlotte. And like I
15 said, I think there was a detective out at the house with Sonia.
16 Q. Did you tell him that?
17 A. I told him to drive as close to Charlotte as he possibly
18 could and that if he ran out of gas, that I would go pick up his
19 mother and have the detective come with us to meet him so we
20 would make sure that no harm came to him while he was trying to
21 turn himself in.
22 Q. When did that conversation take place?
23 A. I don't know the approximate time, I just know that it
24 had to have been somewhere between midmorning or late afternoon,
25 somewhere between that time factor. I work nights, so I always
491
1 sleep straight through the morning.
2 Q. Sometime later that night, your boyfriend realized there
3 were police in the shopping center behind your apartment, right?
4 A. Uh-huh and that's because he got up -- he rides the bus
5 home and he walks down our back way. So that's the back of the
6 T J Maxx parking lot and everything. And he came in, I was
7 asleep at the time, and he came in and he said, what is going
8 on, did you not notice all of these cop cars? Well, I never
9 look out my back door because the brick wall, you can't see
10 anything back there anyway. So, I mean, I never go out the back
11 anyway, so I had no reason to just go looking out the back door,
12 there wasn't any noises at the time. And then when he told me,
13 that's what I went out back and I saw all of the police cars and
14 still didn't know what was going on. All I knew was that he was
15 on his way trying to get back to Charlotte.
16 Q. But you thought that was the car he was in, did you not?
17 A. When I looked at it, I didn't know, I knew it was a
18 Honda Accord, but there was two back there. So there was like a
19 younger model, a blue one, and then there was a brand new one.
20 Q. You started looking for him, didn't you?
21 A. Yes, I did, as soon as -- when my boyfriend came in and
22 told me, do you see all of these cop cars out here, what is
23 going on, what is going on, I had no idea. Like I said, until
24 he came home that evening and then I looked out the door and we
25 saw the cars, and that's it. And then I went outside and I was
492
1 looking for him.
2 Q. Did he ask you that night to keep a shotgun or any other
3 pieces of evidence for safekeeping, did he ask you that?
4 A. I didn't see Mark. I did not see Mark from the time
5 that I talked to him on the telephone. That's the last that I
6 talked to Mark was that. I mean, I assume he was trying to get
7 to me, because I told him just try to get to us and we will help
8 you turn yourself in so you don't get yourself killed. I did
9 not see him after that.
10 Q. And you told him a detective was with his mother?
11 A. Yeah, and that, you know, if he didn't get to Charlotte,
12 wherever he ran out of gas, get to the nearest phone and we will
13 meet him there so he could turn himself in safely.
14 Q. Did you tell Agent Modzelewski that you thought he
15 didn't come to your apartment because he was afraid that the
16 police were waiting for him there?
17 A. Uh-huh, and that's why I went out -- that's why I went
18 looking for him.
19 MR. CONRAD: That's all I have.
20 MR. WILLIAMS: No further questions.
21 THE COURT: Thank you, ma'am, step down.
22 Members of the jury, we will take a recess at this
23 time. Do not discuss the case among yourselves while you are
24 out, please.
25 (The jury left the courtroom.)
493
1 THE COURT: Recess until 3:40.
2 (Brief recess.)
3 THE COURT: Call the jury.
4 (The jury returned to the courtroom.)
5 THE COURT: I believe we've got it about right
6 temperature wise in here for a change. Okay.
7 TESSIE NERO,
8 being first duly sworn, was examined and testified as follows:
9 DIRECT EXAMINATION
10 BY MR. WILLIAMS:
11 Q. Would you please tell the ladies and gentlemen of the
12 jury your name?
13 A. My name is Tessie Nero.
14 Q. And how are you related to Mark Barnette seated next to
15 me?
16 A. Mark is my nephew.
17 Q. Are you employed here in Charlotte?
18 A. Yes, I am.
19 Q. And how long have you worked at your present employment?
20 A. I've been there 18 years.
21 Q. Would you tell the jury about your knowledge of Mark
22 growing up and how relationships were in the family as you saw
23 them?
24 A. Mark was a very loving child. I don't think our family
25 was any different than most people, you know, the kids got
494
1 along. He and my daughter sometimes had their problems, but
2 what children don't? Mark was a very studious child. Like I
3 said, he was very loving and giving and caring, and I didn't
4 see, or I don't see him any differently than he was then.
5 Q. Did -- you say your daughter, is your daughter Shondra?
6 A. My daughter is Shondra, yes. She is a couple years
7 older than Mark, and they like I said had their -- he was more
8 like a brother, I guess, to her since I don't have any sons, I
9 have the two daughters. And they got along, like I said, like a
10 brother and sister would, and then later on as they grew, they
11 became pretty close.
12 Q. Were you around Mark much when he and Derrick -- I mean,
13 when Sonia and Derrick were together?
14 A. My husband was in the service, and no, I have to really
15 say no to that. We were not stationed in Charlotte at the time,
16 though we did come up to visit periodically. And there were
17 times when we would stay with them, but I never knew if there
18 were any problems in the household, they were not apparent to me
19 when I visited.
20 Q. And did Sonia ever tell you about any problems between
21 she and Ricky?
22 A. No, not at that time. The only time I realized there
23 were really serious problems was when I really knew the marriage
24 was not going to work. And it was then that I found out that
25 they were, you know, there were problems in the household. But
495
1 she never really talked to me about it or confided any of that
2 information to me.
3 Q. Did she later tell you about the incidents between she
4 and Derrick?
5 A. She didn't go into any great detail. I had noticed once
6 that her ear had damage on it, and I asked her about it and she
7 said that it was from a confrontation that she had with Ricky.
8 Q. And what was wrong with her ear?
9 A. There's a slit in one of her ears from a pierced earring
10 where it had been pulled through.
11 Q. Do you know anything about an incident where Ricky had
12 kicked a door in?
13 A. I am not aware of that, no.
14 Q. Were you told about that?
15 MR. WALKER: Objection, she said she didn't know, Your
16 Honor.
17 MR. WILLIAMS: All right.
18 THE COURT: Sustained.
19 BY MR. WILLIAMS:
20 Q. How would you describe Mark in his early years -- strike
21 that. Was there a time that you lived in Columbia, South
22 Carolina?
23 A. Yes, there was.
24 Q. And was Mark living down there for some period of time?
25 A. Sonia and Mark stayed with us for about a year. Ricky
496
1 was stationed overseas, and they came and lived with us while he
2 was overseas.
3 Q. And can you tell sort of in order, sequential order of
4 what you know about Sonia and Mark and Mario and Derrick as they
5 moved from place to place and where they were and what you knew
6 about Mark during those times?
7 A. He was in the service as you just mentioned, and yeah,
8 they did move from place to places, as my husband and I did. As
9 far as I know about those times, like I said, Mark was just a
10 normal child. He went to school. He was very studious. He is
11 great at artwork. And to me, it just seemed as though
12 everything was the same as any normal household.
13 Q. Did you ever know Mark to be violent or abusive?
14 A. I have not.
15 Q. On the times that you were around him?
16 A. No, I have not.
17 Q. Did you ever see that side of him?
18 A. I have not, I have not. I have seen him -- I have not
19 seen any of the abuse or forcefulness. I have seen him angry
20 about different things but nothing out of the ordinary, nothing
21 out of the ordinary.
22 Q. Did the -- Pearl was your mama?
23 A. Yes, she was.
24 Q. And did the murder of Pearl Cooper have an effect on you
25 and Sheila and --
497
1 A. It had a very profound effect, yes, it did, and it does
2 daily.
3 Q. Does -- were you there when that happened?
4 A. No, I wasn't, I was in Alaska.
5 Q. Was Sheila there when it happened?
6 A. Sheila was there, and from what I understand, she was
7 the one who found my mother.
8 Q. Was that episode in Mark Barnette's life, the murder of
9 his grandmother, was that talked about between the family
10 members over a period of time, years, in regard to you and
11 Sheila and Sonia?
12 A. Honestly, I don't feel that we discussed it very much.
13 My sisters and I would sometimes mention it, just the two of us
14 or the three of us if we were together. There were a lot of
15 details and things that happened, of course, since I wasn't here
16 that I wanted to know about. But I can't say that we honestly
17 sat down and talked about it in front of any of the kids, Mark
18 or any of the other kids.
19 Q. What can you tell this jury about Mark Barnette with
20 regard to his age and how he developed as a young man?
21 A. Like I said, Mark had I thought a pretty good start in
22 life. He was -- went to a Catholic school at a very early age
23 and progressed through school in a normal, what seemed like a
24 normal childhood just like anybody else. Like I said, he's
25 quick to learn, very smart, very smart. He has a great ability
498
1 for drawing, and he is just a -- just been a wonderful little
2 nephew, sweet and caring and always smiling and eager to do and
3 to help out if he needed.
4 Q. Did you know about his relationship with -- strike that
5 before I ask you that. Is there any depression in your family?
6 A. To be perfectly honest with you, I don't know of any
7 depression. I mean, there are days when I don't feel as well as
8 others. I guess that could be counted as depression. But no, I
9 don't really know of anything.
10 Q. Did you know about his relationship, Mark's relationship
11 with Robin?
12 A. Yes, I did.
13 Q. What did you know about that relationship?
14 A. Well, all I really -- I met Robin. Mark brought her to
15 Charlotte on several occasions. She had spent some time at my
16 mom's home. She seemed like a very nice girl, and they seemed
17 to have a really good relationship. I was very happy for him.
18 I thought finally he found someone who was his caliber of
19 person, and she seemed to make him happy, he seemed to make her
20 happy, they seemed to be a very nice loving couple.
21 Q. Do you have any explanation as to why this happened?
22 MR. WALKER: Objection.
23 THE COURT: Well, sustained.
24 BY MR. WILLIAMS:
25 Q. When he came back from Virginia in April of 1996, did
499
1 you see a change in him?
2 A. Yes, I did.
3 Q. Tell the jury how you saw that change, what you saw in
4 Mark.
5 A. He was just kind of listless, he was very depressed, he
6 just didn't seem to have very much will at that point it seemed
7 like to go on. We tried to get him to talk about it, but he
8 didn't really. So I didn't even at that point realize there was
9 a problem, except for the fact that they had broken up, didn't
10 really know what the problem was between he and Robin.
11 Q. Did you know anything about Mark's church activities or
12 religious activities?
13 A. Yes. When he was a younger child, like I say, he went
14 to Catholic school. I do know that he attended several services
15 with his Aunt Mabel and Grandma Hattie, you know, and he was --
16 even when he came back from Virginia, a couple of times, I know
17 that he went to church with my father.
18 MR. WILLIAMS: That's all, Your Honor.
19 THE COURT: Cross?
20 MR. CONRAD: No, sir.
21 THE COURT: Thank you, ma'am, come down. Call your next
22 witness.
23 MR. WILLIAMS: Sheila Cooper, Your Honor.
24 SHEILA COOPER,
25 being first duly sworn, was examined and testified as follows:
500
1 DIRECT EXAMINATION
2 BY MR. WILLIAMS:
3 Q. Would you tell the jury your name, please?
4 A. Sheila Cooper.
5 Q. And how old are you?
6 A. 35.
7 Q. How are you related to Sonia Cooper?
8 A. I'm her sister, younger sister.
9 Q. And Mark is?
10 A. My nephew.
11 Q. Your nephew. The -- was the death of Pearl Cooper, did
12 that have more effect on you than any of the other sisters?
13 MR. WALKER: Objection.
14 THE COURT: Sustained.
15 MR. WILLIAMS: Well --
16 THE COURT: That's --
17 MR. WILLIAMS: Well, I would like to be heard, Your
18 Honor.
19 THE COURT: Come on up and be heard.
20 (Bench conference not recorded.)
21 BY MR. WILLIAMS:
22 Q. Would you tell the jury about your relationship with
23 Mark Barnette and what you know about him, would you tell this
24 jury about him, the kind of person he was before this happened?
25 A. He is very loving and kind. All of the younger children
501
1 looked up to him for direction. My older son in particular is
2 kind of close, and the only person that he opens up to is Mark.
3 Even throughout him being incarcerated, he calls in and talks to
4 my son because he's the only person that he feels comfortable in
5 expressing himself to and has helped him through some difficult
6 male problems. And my other children as well as all of the
7 other family members look up to him, that he's always been there
8 for them. My daughter, for example, he was the person that
9 taught her how to ride a bike, and I think I had submitted
10 pictures showing how when she got her first bike, Mark was right
11 there riding. First he rode the bike through the house with
12 her, guiding her, showing her what to do and what not to do and
13 then proceeded from there to outside on the concrete. And he's
14 just always been real protective of all of the siblings, not
15 just Mario, but mine as well as Tessie's children.
16 Q. How was the -- tell the jury about what you know about
17 the relationship between Mark and his brother Mario.
18 A. Between Mark and Mario?
19 Q. Yes.
20 A. He is always protective of Mario. I remember a
21 particular time when they were young and they were in Minot,
22 North Dakota and I had visited up there. And the snow comes up
23 to the door step. I mean, when you open the door, there is
24 snow. And Mario was going to the door and the snow would have
25 come in, and I remember Mark scurrying over, he was sitting by
502
1 the -- they had Papasan chairs, and Mark was in the Papasan
2 chair and Mario was walking to the door behind me, and he come
3 rushing behind him to grab him so that the -- because when the
4 snow comes in, I mean, it just whooshes in. And me -- and Mario
5 was just a toddler, it would have covered him. And Mark ran
6 over and scooped him up so that he wouldn't get covered by the
7 snow. And he has always been there for him and guided him in
8 the right direction.
9 Q. What do you know about the relationship between Ricky
10 Barnette or Derrick Barnette and Sonia?
11 A. I was young, and I don't know all of the details of the
12 relationship. I only know when they would argue, that he would
13 throw her clothes out of their closet and to the outside. And
14 my other sister, Tessie, and I would have to go over and help
15 her clean up, get the clothes up and straighten up the house.
16 And I remember doing that on several occasions. I don't know
17 about anything else.
18 Q. Prior to Mark moving to Atlanta with his mother, did you
19 know of any problems that Mark had in his relationships with
20 other people before that happened, before he moved to Atlanta?
21 A. No.
22 Q. Can you tell the jury about your life with Sonia and
23 Mark and Mario in Atlanta?
24 A. I was excited when she called and said that she wanted
25 to come to Atlanta, and we all shared, at that time I only had a
503
1 two-bedroom apartment and I just had one child at that time.
2 And so Sonia and Mark and Mario came to live with me in the
3 apartment or whatever, and all of the boys shared the one
4 bedroom and Sonia and I shared my bedroom. I was pregnant at
5 the time and we were purchasing a house in Lithonia, and we all
6 moved from the house -- from the apartment to the house. And it
7 just so happened that the day we closed on the house,
8 August 12th, my daughter was born August 17th. So while I was
9 in the hospital having the baby, they set up the nursery. Mark
10 in particular set up the crib in the nursery because he knew
11 exactly how I wanted it. So when I came home, everything was --
12 you know, I came from the hospital to the new home and they took
13 care of everything for me, I didn't have to do anything.
14 Q. Do you know anything about other activities that Mark
15 was involved in there in Lithonia?
16 A. Yes, he was on the track team and he was a, what do you
17 call it when you jump over those -- what do you call the --
18 Q. Track?
19 A. He was in track, but he jumped over those --
20 Q. Hurdles?
21 A. Those hurdles or whatever, and he used to practice
22 outside jumping over the hurdles. He had hurdles at the house,
23 and Mario and my son Amad would be outside with him as he jumped
24 over hurdles or whatever. And he danced a lot, and so he told
25 his mother and I that we were too kind of old fashioned, so he
504
1 taught me and her and Michael, which is my children's father,
2 how to dance. He said, okay, y'all need to know how to dance so
3 I'm going to show you how to do it the right way, because we
4 were going to be going out. So we had little dancing lessons
5 from him. And he liked art and he drew a lot, and so his mom
6 would buy him portfolios with all the art utensils that he
7 needed and he would draw pictures for us. And anything we need,
8 he was always there. If I needed to go to the grocery store or
9 anywhere, Mark is who I left my children with all the time.
10 Q. Did you trust Mark with your children?
11 A. Yes, he is the only one that ever watched my children.
12 Q. Did he even harm your children?
13 A. Never, not ever. Like I say, he taught my daughter how
14 to ride. It wasn't me or her father, it was Mark that taught
15 her to ride the bicycle for the first time.
16 Q. Did you know of an incident in Lithonia where Mark was
17 beaten?
18 A. Yes, he was beaten very badly.
19 Q. Did you see him?
20 A. Yes.
21 Q. Would you describe that for us?
22 A. His eyes were closed shut. One eye in particular was
23 closed. He had bruises all about his face.
24 Q. Do you know what that fight was about?
25 A. I understand it was about a girl.
505
1 Q. Okay.
2 A. I don't recall the girl's name. Some boys jumped him.
3 He used to -- he was a choreographer for a night club in
4 Lithonia, and they jumped him at the night club. And I don't
5 understand why there are no records of that incident when De
6 Kalb County police were called to that scene as well as him
7 being admitted to the emergency room at the, it was at the time
8 the Doctors Medical Hospital in Tucker, Georgia.
9 Q. Did you notice any change in Mark after this?
10 A. After that incident, he was, I hate to say afraid, but
11 he was afraid and more protective of us. And he would always
12 say to me, you know, I'd run out in the garage and get in the
13 car or whatever and think nothing of it, and he is saying, Aunt
14 Sheila, you need to be more careful when you're coming in and
15 out so that, you know, be aware of your surroundings, because
16 I'd just grab my pocketbook and go. And he'd say, you just need
17 to watch out for yourself and the kids better. He said, you
18 just go off and you don't think about it, you need to be more
19 careful. And he was just, like if I was out or something, he
20 would just kind of sit there and watch the door and when I come
21 in, I mean, he was like, what took you so long, or whatever. He
22 was just kind of scared.
23 Q. Did you know anything about the boyfriends that Sonia
24 was dating down there at that time?
25 A. Yes.
506
1 Q. Was there a person by the name of Michael?
2 A. Michael is my boyfriend.
3 Q. Was there any drinking going on in the home in Atlanta
4 or Lithonia?
5 A. Yes.
6 Q. Who was doing the drinking?
7 A. Michael drank all the time. He drank Remy Martin. He
8 and Sonia would drink.
9 Q. How much would they drink?
10 A. He'd buy, like on the weekends, he might buy a fifth of
11 Remy Martin, a bottle, whatever a fifth is.
12 Q. Would they ever get drunk?
13 A. Yes.
14 Q. Was Mark there when this --
15 A. No, this was always after the children were asleep
16 mostly.
17 Q. Were there any arguments in the house while this
18 drinking was going on?
19 A. Sonia and Michael would argue.
20 Q. Were they, Mark and Mario, aware of the drinking and the
21 arguing?
22 A. They could have been, yes, sir.
23 Q. Was there any discipline going on -- strike that
24 question.
25 Did a relationship problem develop between Mark and
507
1 Sonia during this period of time, did Mark and his mother get
2 along or did they have problems?
3 A. They got along. I don't know, when you say problems, I
4 mean --
5 Q. Was Sonia using any cocaine during this time?
6 A. I don't know. I can tell you about the alcohol because
7 I was there.
8 Q. Do you know whether Sonia, your sister, used cocaine in
9 Atlanta?
10 A. Yes.
11 Q. She did?
12 A. Yes.
13 Q. Do you know whether she did any of that in Charlotte?
14 A. No.
15 Q. Were the children present during this, or do you know?
16 A. I don't know.
17 Q. Do you know about Mark Reagan, one of Sonia's
18 boyfriends?
19 A. I heard of Mark Reagan, I've never met him. I was in
20 Atlanta, and he called me once to say that he was coming through
21 Atlanta and wanted to meet me. But I didn't know who he was,
22 and I said -- he said, this is Mark Reagan, I'm a friend of your
23 sister Sonia's and I was on my way through Atlanta and I wanted
24 to stop in and say hi. And I says, yeah, right, and I hung up
25 the phone. And it was later I got a phone call from her and she
508
1 said, a friend of mine is going to be passing through and wanted
2 to meet you, and I said, well, I just hung up on him.
3 Q. The incidents that happened with Alesha Chambers, did
4 you know Alesha Chambers?
5 A. Yes.
6 Q. Were you present at the home at various times when
7 Alesha Chambers was dating Mark?
8 A. Yes, uh-huh.
9 Q. Were there times -- was there evidence, strike that
10 question.
11 Did you see Mark do anything with Alesha Chambers to try
12 to get her to stay with him or that kind of thing, or how would
13 you describe the relationship they had with Alesha -- he had
14 with Alesha?
15 A. He never did anything forcefully to Alesha. She always
16 called; she called frequently. And he would ask me if he could
17 use my vehicle to go pick her up, and I'd say yes. I'd say,
18 where are you going, and he says, I'm going to pick up Alesha.
19 And I'd say, okay, and I'd look at the watch, and he'd go pick
20 her and then he'd come right back. And on several occasions, I
21 caught them entwined in each other's arms in Mario's bedroom.
22 On a particular incident when Charlotte-Mecklenburg
23 police came to the home, I was pregnant and I was sleeping on
24 the sofa. And so there was a knock at the door, all of the
25 lights were out in the house, so I go answer the door and it's
509
1 Charlotte-Mecklenburg police, and they say, is Alesha Chambers
2 here? I said, no, no one's here, but you can come in, I says,
3 and I will go in the bedroom and look. I go in the bedroom and
4 there Mark and Alesha are on the floor kissing and hugging under
5 a cover in Mario's room. And I says, well, here they are right
6 there, and I believe they took off out the glass sliding door.
7 So she was never forced to come there, she always wanted
8 to come there and she called the house frequently. And on
9 several occasions, she, even after Mark had served time for
10 being accused of kidnapping her, the day that he came home,
11 Alesha called. We started screening the phone calls without
12 Mark's knowledge, and we would never let Mark speak to Alesha.
13 And she called continuously and continuously, and when she
14 realized that we wouldn't let her speak to him, she started
15 getting someone else to call and I would then say, well, who is
16 this and what business is it that you want with Mark, and they
17 would hang up this phone.
18 Q. Okay. Did you see -- well, strike that. Did
19 you -- were you involved in getting Mark back from Roanoke,
20 Virginia in April 1996, did you have any part of that?
21 A. Yes, I paid for the U-Haul and whatever cost. My sister
22 said he needed to come home, and I said, then let's go get him.
23 And my father and my son went to and I went to the bank and I
24 gave them the money.
25 Q. How would you describe Mark when he came back from
510
1 Roanoke?
2 A. At first, he was okay, he was glad to be back home. And
3 then I noticed each time I saw him, he was getting more and more
4 depressed. He stayed upstairs, and he would seldom come
5 downstairs when the rest of the family was there.
6 Q. Did you ever hear him upstairs talking to -- or talking
7 to someone on the phone?
8 A. Yes. One particular incident, I heard him talking on
9 the phone to Robin and he was upset and crying. And it made
10 everybody upset, so I took my kids and we left.
11 Q. Was Mark aware -- strike that. Did Mark have arguments
12 with Sonia about the use of alcohol and drugs in the family?
13 A. I don't know if they had arguments about that. I
14 couldn't -- I wouldn't have been in the room if that was the
15 case. I don't know.
16 Q. Did you know about the relationship with Robin, how Mark
17 felt about that relationship?
18 A. Yes, I knew he loved her a lot. And actually when we
19 met Robin, we were glad he had met Robin because she was
20 different from the other girls. She seemed to have a direction
21 in her life and not just laying on Mark's every word or didn't
22 think that there was something to gain with being with Mark.
23 She loved Mark for just Mark, not because she thought Mark's
24 family had money or land or anything like that.
25 Q. Did Sonia tell you about an incident where she had a
511
1 small gun?
2 A. Yes.
3 Q. What was that incident about?
4 A. It's when she and Ricky were married, and she said that
5 she had the gun for her protection. And she got mad, I believe
6 she said, he made me so mad, she wanted to shoot him, because --
7 well, I know now that that's because they were fighting. I
8 didn't know that.
9 Q. But that's what she told you?
10 A. Uh-huh.
11 Q. Did you know Angelica and his son, little Mark?
12 A. Yes.
13 Q. How did you know them?
14 A. From Atlanta. Natasha is from Atlanta, and they were
15 over at my house in Atlanta all the time.
16 Q. What did you know about Mark's relationship with them?
17 A. With the children?
18 Q. Yes?
19 A. It was very good, it was very protective father. I
20 mean, I admired him being a male and the way that he cared for
21 them, the way that he dressed them. I mean, they had a certain
22 time that they had breakfast, lunch, dinner, bedtime.
23 Q. Is that when they were in Charlotte?
24 A. That was when they were in Charlotte but also when
25 Angelica was little in Atlanta. And she would come over, they
512
1 would always come over to my house for Christmas dinner and
2 Thanksgiving.
3 Q. So you are talking first of all about the times when
4 Mark was in Atlanta or the Newnan area?
5 A. I lived in Atlanta.
6 Q. Okay.
7 A. They later moved to Newnan.
8 Q. Would he bring the children over to your house?
9 A. Yes, and the baby's mother as well. They all had
10 dinner.
11 Q. Did he appear to care for them?
12 A. Yes, very much.
13 Q. How about the times in Charlotte, when was that time?
14 A. I couldn't tell you the dates, but they were all at my
15 dad's house and my sister's house in Charlotte and Mark had --
16 he was seeing after them. In fact, all of the children,
17 including my children, they all had chicken pox at the time same
18 time. And so we had a true drama of having to bathe all these
19 kids in oatmeal and calamine. There were five children had
20 chicken pox all at the same time, and those included his two and
21 my two and Sonia's one, they all had it at the same time, and we
22 had both bathrooms going with calamine and oatmeal baths.
23 Q. How long did the children stay there at the West
24 Boulevard house?
25 A. Seems like about a month.
513
1 MR. WILLIAMS: I believe that's all at this time, Your
2 Honor.
3 MR. WALKER: No questions.
4 THE COURT: Thank you, ma'am, step down. Call your next
5 witness.
6 MR. WILLIAMS: Your Honor, if you would just give me a
7 moment, please.
8 (Pause.)
9 MR. WILLIAMS: Call Mario Barnette, please.
10 MARIO BARNETTE,
11 being first duly sworn, was examined and testified as follows:
12 DIRECT EXAMINATION
13 BY MR. WILLIAMS:
14 Q. Would you tell the jury your name, please?
15 A. Mario Barnette.
16 Q. How old are you, Mario?
17 A. 20 years old.
18 Q. Are you Mark Barnette's brother?
19 A. Yes.
20 Q. You are his youngest brother?
21 A. I'm his middle brother. He has a younger brother.
22 Q. Okay, middle brother. Where do you now live?
23 A. At 3413 West Boulevard with my mom.
24 Q. When you were young, was Sonia, your mother, home much?
25 A. No, not really.
514
1 Q. Pardon me?
2 A. Not really, no.
3 Q. Can you tell the jury what you remember about that?
4 A. After my mother and father separated, my mother worked a
5 lot, and even after work, there really wasn't much presence of
6 her around the house, I guess long hours or whatever the
7 situation was. It was just mainly me and my brother at the
8 house, wherever we lived at the time.
9 Q. Where were you living during this period of time?
10 A. When they first separated, we were living in Wendover
11 Apartments.
12 Q. Well, who was there to take care of you beside Mark
13 during this period of time?
14 A. If it wasn't him or my brother, there was no one else.
15 Q. Can you tell the jury about your life with your brother
16 Mark, what you remember about it in the early years and then
17 move on into the time when you went to Atlanta, what it was like
18 living there in the home with your father and your mother?
19 A. You're talking about when we were we were all together
20 as a family?
21 Q. Yes, first when you were together before they
22 separated.
23 A. Early years, it was a very -- it was a family atmosphere
24 for me. There were times when, you know, we had our good times
25 like the holidays and things like that, and we celebrated all of
515
1 the holidays and went out together. And at home, I mean, there
2 were times when my mother and father argued, but I was never,
3 you know, in view of them arguing, more like in my room or, you
4 know, whatever the situation was. But there was also times when
5 we, you know, we played together. I can remember one time when
6 we were in my mom's room, we were in my mom and dad s room and
7 we were like tickling her, you know, all of us were ganging up
8 and tickling her. So we had our good times and we had our bad
9 times, but there were times where late at night you could hear
10 my mother and my father arguing with each other. Like I said, I
11 was never there to actually see, but I could hear it past the
12 bedroom doors.
13 My brother, he had friends to play with, you know, being
14 the age difference or whatever, but at the same time we played
15 together also. We had a room together, and to me it just seemed
16 like a normal family atmosphere.
17 Q. During what period of time was it that it was normal?
18 A. That was All the way up to, I'm not sure of the time
19 period before my mother and father divorced or even separated,
20 but shortly before they did, I did recognize a lot more arguing
21 going on between them, and then the separation came, you know.
22 And after we had separated or whatever, it was just me and my
23 brother and my mother, my mother started working a lot more to
24 support us. And it seemed like longer hours or whatever, but my
25 brother was still there, you know, to take care of me and, you
516
1 know, clean up, make sure we went to school and things like
2 that. So if my mother wasn't there to make sure these things
3 got done, even chores around the house, then my brother was also
4 there.
5 Q. Was there drinking, evidence of drinking alcohol in the
6 family?
7 A. Yeah.
8 Q. How much?
9 A. Actual consumption --
10 Q. Well, I mean, was it a normal thing for there to be a
11 lot of drinking of alcohol in the family?
12 A. Yeah, pretty much. After the divorce, there was
13 actually a cart that used to have a lot of alcoholic beverages
14 on it, It was kind of like a minibar or whatever, but I know
15 that was always present.
16 Q. How was the relationship between Mark and his father?
17 A. My father was very disciplinary toward Mark. I can
18 remember the incident after we had separated, we were living in
19 Wendover, that I think my brother got bad grades on a report
20 card or messed up in school somehow. And my father had came
21 over and I was, you know, sent upstairs, but downstairs I could
22 hear him and he had got a whipping for that, you know. And it
23 was just, to me, you know, at the time it seemed like he must
24 have really did something wrong, you know, to get, you know, a
25 beating, but then I later on found out it was bad grades and it
517
1 was like messing up in school and stuff. And that's the kind of
2 discipline that's always been, you know, present.
3 Back when we were living in Clanton Park, I'd opened the
4 door for a distant family member, you know, somebody I really
5 didn't know, and I got disciplined for that. So it was always a
6 stern kind of, you know, do right and, you know, this stuff
7 won't happen to you. But between my brother and my father, I
8 guess he was more strict towards him than he was toward me.
9 Q. Tell the jury about what your life was like in Atlanta
10 after you moved out of Charlotte after your mother and father
11 separated.
12 A. After we moved to Atlanta, we first moved in with my
13 Aunt Sheila, and she had an apartment whatever set up for
14 basically her family, you know, my cousin, my mom and her
15 boyfriend. And we all, I mean, personally I always felt out of
16 place living with her. Even though she welcomed us and stuff,
17 it was kind of an uneasy feeling about being around. And I know
18 Mark felt the same way, too, because he used to always be gone
19 from the house. He didn't -- you know, you could kind of tell
20 when somebody doesn't want to be around because they stay gone
21 and, you know, I guess they are out trying to make new friends.
22 I was trying to do the same thing, trying to set your roots.
23 But it seemed like once you get a firm grip on what your
24 location is and what is going on around you, then things started
25 to change, we started to move again.
518
1 And we moved to a house in Stone Mountain and we were
2 still living with Aunt Sheila and her family, you know, and
3 still it's just a feeling of being out of place, you know, and
4 not feeling like you really belong. Even though they may say
5 you are welcome, it's just -- it doesn't feel that way. And
6 during that time, my mom, she was getting a new job, and so I
7 guess it required her to be gone long hours also. But in that
8 case, it was better because my Aunt Sheila was there as a
9 figure, as an authority figure, so I guess it was less pressure
10 on my brother so he could take care of his school work and
11 whatever.
12 Q. Did you go to more than one school while you were there?
13 A. Yes. I went to Rock Chapel, that's the first
14 school -- I can't remember what school I went to when I first
15 moved to Atlanta.
16 Q. What about Mark?
17 A. I remember Mark going to Lithonia High School, but that
18 was about it.
19 Q. Were you proud of your brother Mark at that time?
20 A. Was I proud of him?
21 Q. Yes?
22 A. When he was going to Lithonia High School, I was very
23 proud of him.
24 Q. Why is that?
25 A. He was first of all a kind of figure in the sports, he
519
1 was a track star. And they had this image of Mark, I mean, it
2 was very true, you know, being able to run track and keeping up
3 grades and stuff and always looking nice. And they used to call
4 me little Mark because, you know, I was this unknown kid that
5 came, but as soon as they found out that I was his little
6 brother, that's how they related me to him. So I felt very
7 proud of my brother.
8 Q. Were there any male figures in your life, in Mark's life
9 and your life there in Georgia, any male role models, or was it
10 just your mom?
11 A. There were males, but, I mean, this one man my ant was
12 going with or whatever and she had a child by, two kids by, I
13 didn't consider him a role model. No, I didn't consider him a
14 role model at all.
15 Q. Was he a negative role model?
16 A. Yeah.
17 Q. Was your mother -- would Mark and your mother get into
18 any arguments down there during this period of time?
19 A. In Georgia, yeah. When we were living in Stone
20 Mountain, there were several arguments to the point where they
21 told Mark he had to leave, he had to leave the house or
22 whatever. And they had informed me and my little cousin that we
23 was leaving, and at the time we took it kind of lightheartedly
24 and we were writing letters and drawing little pictures of stick
25 figures leaving out the house and stuff with a suitcase. But we
520
1 never fully understood that Mark was being put out of the house
2 at the time because we didn't even know why, you know. But
3 there had been several severe arguments between my brother and
4 my mother.
5 Q. Do you know what they were about?
6 A. No, sir.
7 Q. Was the relationship that developed in the family, was
8 it -- how would you describe it in Atlanta, did it remain
9 stable, was it good, was it bad, was it worse, did it get
10 better?
11 A. At times, it seemed to be okay. It was like -- there
12 were several times where the relationships between the family,
13 you know, didn't go over well. Arguments would come out, and,
14 you know, fighting, not physical fighting, but arguments and
15 stuff. But the overall relationship was kind of edgy, you know,
16 you never know -- the next day, you never know which way it will
17 go, you don't know if they'd be hugging or wanting to go
18 somewhere with each other or if they'd be arguing. It was just
19 kind of -- it was a day-to-day basis really.
20 Q. How did Mark handle that kind of relationship, how did
21 it affect him from your point of view?
22 A. From my point of view, I think he didn't really want to
23 be too involved with the family because of that, and there were
24 times when he would stay gone a lot over at his girlfriend's
25 house or just out, because I think it was actually too
521
1 stressful. There was so many people in the house at the time
2 that, you know, tempers would just flare, you know, from just
3 being around too many people, and I think he stayed away for
4 that reason.
5 Q. And when we would stay away, did he go and would he date
6 other people, you said he had a girlfriend?
7 A. Yeah. I don't know about other girls, but I know he had
8 this one main girlfriend named Tasha Heard. And from not being
9 at home, I know he was probably over at her house most of the
10 time.
11 Q. Did you notice that Mark, while the turmoil was going on
12 in the home, that he would stay away more and more?
13 A. Yeah. At times, the intervals became longer. It used
14 to be after school, you know, he'd kind of come home for a
15 while, but then it started to be days at a time, and it just
16 went from there. Sometimes one day and sometimes two or three
17 days, you know. Really though, the reason -- I mean, not the
18 reason, but the intervals kind of changed. Like during the
19 weekend, he might be gone the whole weekend, and then he would
20 come home from school and, you know, see how me and Amad are
21 doing and hang around the house. But then it just built up. I
22 think his friends had cars or whatever and they would just stay
23 out during the weeks a lot, but not like the entire week.
24 Q. When he moved to Newnan, Georgia to be with Tasha, where
25 were you living?
522
1 A. When he moved to Newnan, I was living in Sterling
2 Apartments with my mother.
3 Q. What city?
4 A. In Atlanta.
5 Q. In Atlanta. After Mark moved with -- in with Tasha, how
6 long did you stay in the Atlanta area with your mother?
7 A. We stayed in the Atlanta area all the way up until we
8 moved here, back to Charlotte, and that was about seven, eight
9 years ago. So -- I have to do the math.
10 Q. When you moved back to Charlotte, was Mark there much of
11 the time when you moved back to Charlotte?
12 A. No. When we first moved the Charlotte, it was just me,
13 my mother, my grandfather and her friend. And my mother
14 actually sent me up from Atlanta and she stayed down there to
15 close off, I guess, the job and move the rest of the things back
16 up. And during that time, I was living with my grandfather and
17 her girlfriend Tina. And then she later moved back up, she
18 moved back up with us. But Mark, it took him a while before he
19 moved up. As a matter of fact, my Aunt Sheila and her family
20 had actually moved in before he came up.
21 Q. Do you remember when Mark came back to Charlotte, about
22 what year?
23 A. No, I'm not exactly sure.
24 Q. Tell the jury how things developed there in Charlotte
25 when he came back to Charlotte, what was the family like, what
523
1 was it like there in the home, and I'm assuming you are talking
2 about West Boulevard?
3 A. Yeah.
4 Q. Describe that relationship between people and the family
5 and who was there, and what happened there in the home.
6 A. Well, once again it began to be too many people in the
7 house at one time, so -- and this time you had little children,
8 so it was harder to get sleep and, you know, waking up and
9 having to go to school and all of these different things.
10 Everybody had their own schedule, everybody was busy, so we
11 really didn't communicate a lot between each other. But at the
12 same time, the tempers would get out of control, you know,
13 having to take care of school work and, you know, Mark having to
14 go to work and Aunt Sheila and mom having to go to work. But
15 they did get along together because they all worked together, so
16 that was one thing they did get along with. But it was just, I
17 think, personally I think it was too many people in the house,
18 and when you get too many people together like that, it is just
19 not good.
20 Q. Was Mark working during some of these times?
21 A. Yes, he was working at the hotel with my mother and my
22 aunt.
23 Q. And did you know whether or not they were -- strike the
24 question.
25 Were there any conflicts, physical conflicts or fights
524
1 or arguments in the home in '93 and '94 after Mark came back?
2 A. I'm not sure.
3 Q. How did you get along with Mark during that period of
4 time?
5 A. Basically we stopped really communicating that much when
6 he had moved to Newnan. So after that point, I mean, we had our
7 little conversations, you know, but it was just like brotherly,
8 you know, being together all the time, that stuff never really
9 happened.
10 Q. What do you mean by that?
11 A. I mean, like what you would expect two brothers to be
12 like, maybe going out to places all the time and stuff like
13 that, I mean, I was around when he like worked on cars and kind
14 of hung around him, but as time passed it just seemed like we
15 kind of spread further apart from each other, me going to work
16 and having my friends and him having his hobbies and going to
17 work and, you know, girlfriends and stuff like that.
18 Q. When you were all living together there on West
19 Boulevard, 1993, 1994 on into 1995, did the police ever come out
20 to the West Boulevard home?
21 A. Yes, they'd come out a couple of times.
22 Q. Why would they come out?
23 A. At the present time, I believe it was his girlfriend,
24 Alesha. There were incidents where his -- her mother would call
25 over to the house and ask if Alesha was there, and of course,
525
1 you know, we'd tell her yes, she is. And the next thing you
2 know, police would be pulling up and all of this different stuff
3 and a lot of commotion. And there were times where he would
4 bring the girlfriend over, you know, and they sit down in the
5 living room for a while, you know, talking or whatever, and then
6 the next thing you know, police would pull up again. There was
7 a lot of confusion during the time, I don't understand why, but
8 it was just like every time she came over, there was a lot of
9 commotion about where she was, how did she get here and all of
10 this different stuff. But at the same -- I mean, before the
11 incidents would happen, you could pick up the phone, like I'd
12 pick up the phones sometimes answering the phone and it would be
13 Alesha calling for Mark to come pick her up. And she used --
14 well, at the time my brother used my aunt's Bronco. That's what
15 she had, the vehicle. He didn't have one of his own. So he
16 would get in the Bronco, go pick her up and bring her back to
17 the house. And then like sometimes, I guess she tried to stay
18 overnight or something like that, but no matter when she did
19 come over, no matter how she got here, her mother would always
20 find a way to start up a lot of commotion.
21 Q. The times when you saw Alesha over there, were there a
22 lot of times that you would see her over there?
23 A. I wouldn't say a lot of times, but there were a couple
24 of times she's been over there.
25 Q. The times that she was over there, did she appear to be
526
1 there against her will?
2 A. No. Like I said, the reason she was over there was
3 because we had received a call from her telling Mark to come
4 pick her up either from work or school or wherever she was at
5 the time.
6 Q. Did you ever see Mark, your brother Mark being abusive
7 to Alesha Chambers?
8 A. No.
9 Q. Hit her, strike her, pull her?
10 A. No.
11 Q. Were you in school with Alesha?
12 A. No, we didn't go to the same school. I don't think we
13 did.
14 Q. Did -- were you in a car at one time when Alesha and
15 Mark picked you up or were in the car with you, the three of
16 you?
17 A. Yeah. I was working at Checkers on Wilkinson at the
18 time and I needed to be picked up. And my mom didn't have the
19 Bronco there, she didn't have a car of her own, and that was the
20 main source of transportation. So my brother was going to come
21 pick me up, so he comes to pick me up and Alesha is sitting in
22 the front seat. And she's sitting there like they had just went
23 through an argument or something, she's got her hands folded and
24 she's pouting. And I have to get in behind her, it's a two-door
25 truck, so she lifts up the front seat, slides forward or
527
1 whatever and let's me in and we go home. But, I mean, they were
2 both quiet during the time, they had the radio on. But from
3 previous we had to go to court about, I don't know if I can talk
4 about this or not, but we had to go to court about this, and I
5 testified and I was like they were telling me she had been
6 kidnapped and all of this different stuff. And that was not --
7 you know, they were asking me about her body language. Her body
8 language showed nothing like that. What she showed was she was
9 sitting there, you know, kind of leaning back in the seat or
10 whatever with her arms folded, but there was no sign of
11 restraint or fear or anything.
12 Q. After that incident, after the incident you just
13 described for the jury, did Alesha continue or did she call Mark
14 after that?
15 A. Yes. The earliest I can remember was the day after he
16 got out of jail for, you know, that incident. She had called
17 and wanted him to pick her up, and my brother actually told me,
18 he was like, watch this, you know, I need you to come and watch
19 me because I know she is going to try something or whatever. So
20 he goes to pick her up or whatever, but it was just -- it struck
21 me for the simple fact that why, you know, after he served time
22 for this offense or whatever and she is supposed to be so scared
23 of him and all of this different stuff, why is she calling him?
24 That wasn't the first time. She had called times after that,
25 you know, and this is during when he was going into a new
528
1 relationship and she was still wanting to call. She used to
2 call the house, man, like 15 times a week, you know. And she
3 called, we tried to ask who this is, you know, we started to
4 recognize her voice. And she called him and would be like, can
5 I speak to Mark, you know, without saying who her name is or
6 anything. If we said he wasn't there, it was just a hangup. If
7 you started asking her questions about, who is this, you know,
8 because we didn't want her speaking to Mark, and if you ask her
9 questions about who she is, the phone would be hung up.
10 Q. Did you know Robin Williams?
11 A. Yes.
12 Q. Did you ever go up to Virginia when Mark and Robin were
13 together?
14 A. No.
15 Q. When Mark came back from Virginia in April of 1996, how
16 did your brother act?
17 A. He was, I guess the word is sullen kind of. He
18 was -- when he first came back, he felt bad about the
19 relationship being broken up, but at the same time, he was
20 willing to get on with the rest of his life. He wanted to start
21 over by getting a new job, and he used to -- I was working at
22 Wendy's at the time, and he used to take my car and go up to a
23 dealership, a car dealership, to, you know, he had applied at
24 the dealership, whatever, and they kept wanting him to come back
25 for interviews. So this was like the biggest thing going on
529
1 when he came back to Charlotte, he was trying to get this
2 salesperson position at Saturn. And it was like almost every
3 day they wanted him to come back for more interviews, and he was
4 actually in competition, and that's what he was really worried
5 about. He wasn't -- he wasn't trying to, you know, do anything
6 else but get the job, but then the job fell through and it went
7 to another person.
8 Q. How did he act after that?
9 A. After that, it kind of -- it depressed him. He stayed
10 to himself a lot upstairs and he didn't really come downstairs.
11 If there were a lot of people down there, you know, a lot of
12 family members around, he kind of stayed away you know, upstairs
13 kind of to himself. He used to come down sometimes after
14 everybody was gone or after things had calmed down to watch TV,
15 you know. But he just -- he didn't -- you know, it was like
16 that just kind of knocked him off of his pedestal for what he
17 was trying to accomplish.
18 Q. Was Mark ever abusive to you, was he ever mean and
19 abusive to you?
20 A. There were times where we used to, you know, wrestle
21 together, but abusive as in any sort of the word, no.
22 Q. Did you ever know Mark -- do you love Mark now, even in
23 spite of what he has done?
24 A. Yes.
25 Q. Did Mark talk to you about his relationship with Robin?
530
1 A. Yeah, when he came back from Virginia, actually even
2 before they had both moved up to Virginia. This is the first
3 time he's actually went out and got an apartment with somebody.
4 When he had went down to Newnan, I think he was really the one
5 trying to get everything started. But at this time, it was like
6 they were both working, both had two futures and professional
7 jobs or whatever together, and he was happy, you know, he was
8 happy that he had finally got his life together and it was going
9 in the right direction.
10 And when he came back to Virginia, he even told me about
11 how he had proposed to Robin. And the only thing he didn't feel
12 too good about was he didn't have a ring, he didn't have an
13 engagement ring to give to her at the time. And it was just
14 like he was on himself, he wasn't really angry, but he was just
15 like, you know, I didn't do it right, you know, I got to get
16 this stuff right so I can propose to her the right way. But I
17 know he pretty much wanted to, you know, get everything straight
18 and just lead a nice life for her.
19 Q. Are you in school?
20 A. Not anymore, no.
21 Q. Do you work?
22 A. Yes.
23 Q. You work one job or more?
24 A. One job, one full-time job.
25 MR. WILLIAMS: That's all at this time, Your Honor.
531
1 MR. WALKER: Just briefly.
2 CROSS-EXAMINATION
3 BY MR. WALKER:
4 Q. Your brother has a temper, doesn't he?
5 A. I believe everybody has a temper, but yes.
6 Q. You've seen him get angry?
7 A. Yes.
8 MR. WALKER: May I approach the witness, Your Honor?
9 THE COURT: Yes. Has defense seen what you've got?
10 MR. WALKER: They have seen it, Your Honor.
11 THE COURT: What number is that?
12 BY MR. WALKER:
13 Q. Let me show you Government's 18A and 18B, and I will
14 first show you Governments Exhibit 18A, its entitled firearms
15 transaction record, and I will refer your attention to the
16 buyer's signature. Your signature appears on there, is that
17 right?
18 A. That's not my signature, that's my name.
19 Q. That's your name, but it's not your signature. And the
20 same with Government's Exhibit 18B, in the signature, it's your
21 name but it's not your signature, is that right?
22 A. That's right.
23 Q. Had you given your brother permission to use your name
24 to buy two different shotguns at a pawn shop here in Charlotte?
25 A. No, sir.
532
1 Q. Let me also show you what I will mark for identification
2 as Government's Exhibit 66-6. Does that appear to be your
3 brother's photograph?
4 A. Yes.
5 Q. But the signature underneath your brother's photograph,
6 the signature reads Mario Barnette, is that right?
7 A. Yes.
8 Q. But that's not your signature, is it?
9 A. No.
10 Q. What do you know about your brother driving your car to
11 Roanoke to fire bomb Robin Williams' apartment?
12 A. At the time, I did not know he used my car to do such a
13 thing. He used to borrow my car to go to the store, run errands
14 or whatever, and that's what he asked me to do that time with
15 it. He didn't tell me he was going out of town or nothing like
16 that.
17 Q. When did he ask you to borrow your car that day?
18 A. He asked me, I believe, the night before and he asked to
19 borrow the car to go, you know, to the store. And it wasn't
20 there, when I woke up the next day, the car wasn't there. And I
21 had to go to work, my mom took me to work or whatever, and when
22 I got to work, he was there with the car.
23 MR. WALKER: I don't have any other questions, Your
24 Honor.
25 MR. WILLIAMS: No further questions, Your Honor.
533
1 THE COURT: Thank you sir, come down.
2 MR. WILLIAMS: Your Honor, could we break at this time?
3 THE COURT: Pardon?
4 MR. WILLIAMS: Can we break for the day?
5 THE COURT: Yes, sir, planning on it.
6 Members of the jury, thank you so much for your time.
7 Now, tomorrow morning, we are supposed to have torrential rains,
8 I think. That's what the weather report says, so I'm sure we're
9 going to have it. Is there anybody who would have any problem
10 with that, I mean, as far as getting caught in the floods, you
11 know, we seem to have a lot of floods around here?
12 (No response.)
13 THE COURT: 9:30 all right then?
14 (Jurors nod heads.)
15 THE COURT: All right, fine, see you in the morning at
16 9:30. Do not discuss the case with anyone outside of the
17 courtroom or among yourselves. Do not look at anything on TV,
18 read anything in the newspaper, and don't let anybody talk to
19 you about the case. We'll see you in the morning at 9:30.
20 Thank you so much.
21 (The jury left the courtroom.)
22 THE COURT: I believe tomorrow you are going to have
23 some experts, is that right, from the defense side?
24 MR. WILLIAMS: Yes, sir.
25 THE COURT: Still have the question of whether or not
534
1 the government's expert should be sequestered during the
2 testimony of your experts. Has there been any agreement between
3 you on that yet?
4 MR. LAUGHRUN: No, sir. Judge, they have got all of the
5 reports, they've exchanged raw data. I don't think it's fair
6 that they get to hear our experts and we don't get to hear
7 theirs. I mean, if that's the case, when their experts testify,
8 we're going to keep our experts here and put on surrebuttal if
9 they testify.
10 THE COURT: What do you say, Mr. Conrad?
11 MR. CONRAD: Well, Your Honor, we have given defense
12 counsel a lengthy report ahead of time. We didn't have to give
13 that to them until we decided whether we would call rebuttal
14 witnesses. But in order to speed this trial up along, we gave
15 them the report ahead of time. The reports that we got back
16 from them are a page and a half for Dr. Cunningham. I have seen
17 Dr. Cunningham's testimony in other trials and it goes on for,
18 you know, 50, 60, 70 pages of transcript. We get a page and a
19 half report from him with summary conclusions, no in-depth
20 analysis whatsoever, just a mere summary of what he might
21 testify to, and we contend to Your Honor it's in the nature of
22 rebuttal testimony to listen to what the testimony is and then
23 to rebut it. I mean, that's the only way an expert can rebut
24 testimony is to listen it to and offer his opinions afterwards,
25 and I don't think the defendant is entitled to surrebuttal at
535
1 all.
2 THE COURT: Well, I've tried to find some things over
3 the last day or two. 615, of course, Rule 615 does not mention
4 experts as being those who may remain in the courtroom, but we
5 have some cases now which I want to -- United States versus
6 Jackson, which is a Second Circuit case, 60 F.3d 128, and this
7 would be Page 135. That states that because a court may only
8 decline to grant a party's request to sequester a particular
9 witnesses under one of Rule 615's exemptions, the rule carries a
10 strong presumption in favor of sequestration. The party
11 opposing sequestration, therefore, has the burden of
12 demonstrating why the pertinent Rule 615 exception applies and
13 why the policy of the rule in favor of automatic sequestration
14 is inapplicable in that situation. The party requesting
15 sequestration should thereafter have a chance to demonstrate its
16 necessity. Such an exchange affords the Court full opportunity
17 to consider the competing interests, and if it denies the
18 motion, to explain the factors it considered in reaching the
19 decision.
20 Now, the Fourth Circuit case, a civil case, Opus 3
21 Limited versus Heritage Park, and that's 91 F.3d 625, and this
22 would be at Page 629, I think. It says because Rule 615 is
23 designed to preclude fact witnesses from shaping their testimony
24 based on other witnesses' testimony, it does not mandate the
25 sequestration of expert witnesses who are to give only expert
536
1 opinions at trial. Indeed an expert who is not expected to
2 testify to facts but only assumes facts for purposes of
3 rendering opinions might just as well hear all of the trial
4 testimony so as to be able to base his opinion on more accurate
5 factual assumptions. Nevertheless, we decline to adopt a per se
6 rule exempting expert witnesses, even those who are expected
7 only to render opinions from the sequestration. The rule does
8 not provide for an exemption in Section 3 vested in trial
9 judge's broad discretion to determine whether a witness is
10 essential. In the case before us, even if Mack were going to
11 testify only as an expert, Heritage Park failed to establish
12 that he needed to hear the trial testimony of other witnesses in
13 order to render his opinions. Mack had received and reviewed
14 all of Opus 3's records, including his expert records of the
15 cost of the services rendered, and had prepared a written
16 analysis well before trial. Thus, Heritage Park never
17 articulated why Mack's presence was essential rather than simply
18 desirable. It is precisely this circumstance, skipping on down
19 a few lines, it is precisely this circumstance that adherence to
20 the sequestration rule is most important. Scrupulous adherence
21 to the sequestration rule is particularly necessary in those
22 cases in which the outcome depends on the relative credibility
23 of the parties' witnesses. We conclude the District Court did
24 not abuse its discretion in ruling that Mack was not exempt
25 under Section 3.
537
1 Another Fourth Circuit case, United States versus
2 Burgess, 691 F.2d 1146, this would be Page -- Page 1157, I
3 guess, Page 1157, defense further contends that there was error
4 sufficient to require reversal in the District Court's ruling
5 that the psychiatrist for both parties may remain in court
6 despite Federal Rule of Evidence 615. Provisions calling for
7 exclusion of witnesses, Rule 615 permits an exception in the
8 case of a person whose presence is shown by a party to be
9 essential to the presentation of the case. It is the
10 government's contention that its medical expert, Dr. Pepper,
11 needed to be present. The Court did not abuse its discretion
12 particularly since they evenhandedly afforded the same
13 opportunity to the defense. Where a party seeks to accept an
14 expert witness from exclusion under Rule 615 on the basis that
15 he needs to hear firsthand the testimony of the witnesses, the
16 decision whether to permit him to remain is within the
17 discretion of the trial judge and should not normally be
18 disturbed on appeal. The circumstances in the instant case were
19 such that the ruling permitted the two medical experts for the
20 defense and the government's expert to remain in the courtroom
21 throughout was not an abuse of discretion. Written reports from
22 the medical experts were delayed to the point that they were
23 forthcoming from the defendant only two days prior to the
24 commencement of the trial and from the government on the second
25 day of -- second and last day of the trial. It was reasonable
538
1 not to place the experts under such short-term constraints by
2 familiarizing themselves with each other's finding by reading
3 through reports, and therefore, reasonable to permit all of them
4 to appear in court.
5 Now, we have one more case and I will read you a
6 paragraph from Sixth Circuit, and that's Morvent versus
7 Construction Aggregate, it's another civil case, 570 F.2d 626,
8 that would be Page -- it's only two or three pages, we therefore
9 hold that where a party seeks to -- oh, it's Page 630, we
10 therefore hold that a party -- where a party seeks to except an
11 expert witness from exclusion under Rule 615 on the basis that
12 he needs to hear firsthand the testimony of the witnesses, the
13 decision whether to permit him to remain is within the
14 discretion of the trial judge and should not normally be
15 disturbed on appeal. On the other hand, where a fair showing
16 has been made that the expert witness is, in fact, required for
17 the management of the case and this is made clear to the trial
18 court, we believe the trial court is bound to accept any
19 reasonably substantiated representation to this effect by
20 counsel.
21 Mr. Conrad, can you tell me that this witness is -- are
22 your witnesses essential to be here? As I understand it, they
23 are willing for you to take the transcript and read it, that's
24 correct, isn't it, defense?
25 MR. LAUGHRUN: Judge, we can't stop them from getting
539
1 transcripts.
2 MR. CONRAD: Sure, the sequestration rule can apply to
3 transcripts, and we certainly could be bound to not show our
4 witnesses the transcripts if that's the Court's ruling.
5 As I sit here and listen to the cases you've read, I
6 think it's entirely a discretionary call with the Court.
7 THE COURT: Well, you know, they always say such thing
8 is an abuse of discretion, Mr. Conrad. That's what I'm trying
9 to avoid if I can.
10 MR. LAUGHRUN: Let me give you --
11 MR. CONRAD: Well, If I could finish my argument before
12 counsel intervenes --
13 MR. LAUGHRUN: I'm sorry.
14 MR. CONRAD: -- my position is simple, Judge. We're
15 wanting to put rebuttal evidence on right after the defendant
16 rests in his case. These are not fact witnesses, these are
17 expert witnesses. As the cases you read say, these experts will
18 assume certain facts and render opinions. But there is
19 insufficient -- the Court has on file the reports filed by their
20 three experts. I think the Court could look at the page and a
21 half summaries that exist and know that our experts could not be
22 called upon to rebut that, because there is just nothing in it,
23 it's just pure conclusions.
24 And so rather than us going back and having to tell the
25 expert what happened in court and then try to prepare them, the
540
1 simplest and most expeditious thing is for them to be in the
2 courtroom when their experts testify.
3 THE COURT: I agree with you, I'm just trying not to
4 violate this rule.
5 Now, Mr. Laughrun, did you say yesterday, did you say
6 something about the fact that you had no objection to them
7 having the transcript?
8 MR. LAUGHRUN: I think the exclusion rule, you had a
9 case, the McMahon case where that's what they were doing, and
10 this isn't what they're doing, I'm --
11 THE COURT: Well, the McMahon case was where we told
12 them not to read any -- not to look at -- I mean, not to listen
13 to the testimony and went outside and read the transcript. Now,
14 do you have any objection to his having the transcript?
15 MR. LAUGHRUN: Sure, if the exclusion rule is going to
16 apply, it applies to everything. Let me just give you an idea,
17 Judge, of what they're relied on.
18 THE COURT: You do object to the government having a
19 copy of the transcript to read of the testimony of your witness,
20 is that right?
21 MR. LAUGHRUN: It's just like the witness being here,
22 Judge.
23 MR. CONRAD: I would like the record to reflect, though,
24 at side-bar in the room yesterday, Mr. Laughrun indicated that
25 he had no objection.
541
1 THE COURT: That's what I was thinking. That's the
2 reason I want to make sure we're clear on it.
3 MR. CONRAD: That happened yesterday.
4 MR. LAUGHRUN: It happened Friday. But I want to -- the
5 Rule 615 applies to transcripts, too, the way I read it.
6 THE COURT: Mr. Laughrun, I know it does not have an
7 exception to this particular case.
8 MR. LAUGHRUN: Right.
9 THE COURT: But if you are not going to let him have a
10 transcript, he is going to be at a great disadvantage for
11 rebuttal expert witnesses.
12 MR. LAUGHRUN: Judge, let me tell you what their
13 witnesses have relied on to give you an idea. Those cases seem
14 to think, well, the experts can't form an opinion. Their
15 experts relied on, and you got three pages, single-spaced what
16 they relied on in doing their report. It's everything we got.
17 Their experts went out to the scene just like ours did. They
18 got more discovery than we got as a practical matter. They got
19 a letter from the U.S. Attorney telling them what they wanted.
20 They interviewed some of our witnesses. I mean, these folks
21 have done their homework, okay, I mean, they have got three
22 pages addressed to Your Honor on what they relied on, and
23 probably in excess of 3,000 pages of stuff they relied on.
24 Now, if they want to rebut it with their opinions they
25 have drawn, we have got their reports, let them get up there and
542
1 do that, because what is going to happen is, I can see it now,
2 they get up there and now their report is going to change based
3 on what our witnesses may testify, and I don't think they are
4 entitled to do that under Rule 615. It says "shall." And the
5 provision in the rules about experts doesn't say, well, we are
6 going to make an exception. They made exceptions for the
7 victim's family and that's fine, but they hadn't done it for
8 rebuttal. It doesn't say except in rebuttal. And all those
9 cases you talked about, Judge, seem to say the expert couldn't
10 form an opinion in rebuttal. Here, they've got as much
11 information as we've got, as our experts have got. And if they
12 are in conflict, if the government's experts are in conflict to
13 ours, they can sure argue that to the jury that we haven't
14 carried the burden by the greater weight of the evidence.
15 MR. CONRAD: Your Honor, it's your call to make. It is
16 a discretionary one --
17 THE COURT: I know it's my call. I'm doing the best I
18 can to make a correct call on this, and I'm disturbed about the
19 fact that I haven't found anything yet that says you can't do
20 it, all up to us, the District Court Judge.
21 MR. CONRAD: And the whole purpose of the rule was to,
22 as you -- I wrote it down as you said it, it was designed to
23 preclude fact witnesses from shaping their testimony. These are
24 not fact witnesses.
25 THE COURT: I understand that, expert witnesses used in
543
1 rebuttal, the testimony of the experts on the defense side.
2 MR. WILLIAMS: May I address the Court?
3 THE COURT: I would love for you to. I wish somebody
4 would tell me the answer.
5 MR. WILLIAMS: Well, the way I look at this, Judge, is
6 this: What the government is talking about is to have their
7 experts here to rebut, and they are saying that the only way
8 they can rebut is if their experts hear, listen to, our expert's
9 testimony.
10 Now, respectfully, I argue to the Court, that is not
11 true. That's just not a true statement, because they can rebut
12 our expert's testimony by simply testifying to what they have
13 done. In other words, they have examined all of these records,
14 examined Mr. Barnette, talked to witnesses, looked at
15 discovery. Their report, which is so much lengthier than our
16 expert's report, about 18, 20 pages of it is just listing the
17 things they reviewed. And the point I'm making is, they come
18 into this court fully prepared, fully able to render their
19 opinions. They don't need to hear our experts. They can render
20 their opinion because they have already done so. So it's really
21 the government trying to put it in the phrase of rebuttal, and
22 it's not really rebuttal. They just want them to hear what they
23 are saying.
24 And so the answer is, with all due respect, don't do it,
25 and the reason you shouldn't do it is because it's not
544
1 rebuttal.
2 THE COURT: Well, it's going to be kind of hard on
3 rebuttal to rebut something they haven't heard, that's the only
4 thing I'm concerned about.
5 MR. WILLIAMS: Their opinions, their own opinions are
6 the rebuttal. That's what rebuttal is, it's a difference of
7 opinions. They can sure do that.
8 MR. LAUGHRUN: Judge, also Mr. Conrad talked about the
9 length of the report. The first 32 and a half pages of their
10 report is a narrative about what happened in this case, which
11 isn't worth the paper it's printed on as far as when they
12 testify. It says the defendant says this, our evidence shows
13 this, try to show that he is not telling the truth is what this
14 report is trying to show for the first 32 and a half pages.
15 Then the last five or six pages, it talks about their
16 conclusions.
17 So don't be misled by the length or the weight of the
18 report being weight in pages has a lot of do with it, because
19 all it says is what all they did, as Mr. Williams said, about
20 background information, about seven hours of tapes with the
21 defendant, things like that. So I don't think it's fair to say,
22 well, we have given you a 39-page report when 32 and a half of
23 it is investigation, what all they did, tooting their own horn
24 how hard they worked to do it.
25 THE COURT: Let me read one more section to you,
545
1 Weinstein, 615.04, paragraph 615.04(b), showing the requirement
2 for exemption. Upon a requesting of the witness's exemption
3 from an exclusion order as an essential person, must show the
4 following: that the witness has such specialized expertise or
5 intimate knowledge of the facts of the case that a party's
6 attorney could not effectively function without the presence and
7 aid of the witness, or that the witness would be unable to
8 present essential testimony without hearing the trial testimony
9 of other witnesses. For example, a witness may be essential to
10 a party's cause if he or she was the attorney for the party or
11 for the principal witness during the events that form the basis
12 of the present litigation. Still they're talking about facts.
13 Application of exemption to expert witnesses, paragraph
14 C, the exception is frequently invoked in the case of expert
15 witnesses, usually on the ground the expert will base his or her
16 testimony and conclusions on evidence that will be shown at
17 trial. On the other hand, the mere fact that an expert witness
18 may be assisted by being present in the courtroom to hear
19 testimony that will be the basis of his or her expert testimony
20 does not automatically entitle the witness to an exemption.
21 The decision whether to exempt an expert witness from an
22 exclusion order is within the discretion of the trial judge and
23 should not normally be disturbed on appeal. For example, the
24 trial court has discretion to exclude from the courtroom a
25 witness who is to testify more as a fact witness than as an
546
1 expert giving opinion testimony based on the testimony of
2 others. An expert witness may also be shown essential for a
3 limited purpose such as interpreting testimony of the other
4 party's expert witness. In such cases, an expert is allowed to
5 remain in the courtroom only as needed and is required to leave
6 at all other times.
7 MR. WILLIAMS: Judge, may I say one more thing?
8 THE COURT: Yes, sir.
9 MR. WILLIAMS: On prejudice, and I think we can argue
10 prejudice here, and let me inform the Court where I see
11 prejudice from this sequestration rule on behalf -- that there
12 is some prejudice on the defendant. We made this motion for
13 sequestration. We had our reasons for doing it, to keep the
14 witnesses out of the courtroom so that we on behalf of our
15 client could attempt to obtain as fair a trial as we could get.
16 Now, at the beginning of that motion to sequester, it
17 was an all-encompassing motion to sequester on its face. We
18 asked for all witnesses to be sequestered. It was brought to
19 Your Honor's attention that that should not include the victim's
20 family because of the new rule.
21 THE COURT: Just a minute, I didn't know Mrs. Barnette
22 wanted to be in here. I saw her come in here and I never
23 excluded her and I never asked.
24 MR. WILLIAMS: I'm not fussing. I'm saying where our
25 problem is when we made that motion, that included our family as
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1 well.
2 THE COURT: You are talking about two different things.
3 MR. WILLIAMS: I know, but what's happened is we made
4 that motion for a reason and that's to keep out witnesses. Now,
5 after we made the motion, the victim's families, Your Honor
6 ruled, were allowed to stay in because of the rule that was
7 cited to Your Honor by the government. Our families remained --
8 our client's family remained out. If we had thought that the
9 Court would rule that the government's experts that we did not
10 want in, would rule that they should be allowed to hear our
11 expert testimony, we wouldn't have made the motion in the first
12 place. So now we are prejudiced at the end of the --
13 THE COURT: I haven't ruled yet and I haven't prejudiced
14 you yet.
15 MR. WILLIAMS: Well, I know. I'm just -- with all due
16 respect to Your Honor, I'm trying to argue where we see we are
17 prejudiced by this at this late stage of the game -- not game,
18 but the late stage of --
19 THE COURT: All right, I'm going to wrap it up.
20 Mr. Conrad, I'm afraid that you just haven't done it unless you
21 can show me where it's essential. I think you've had a pretty
22 good error-free trial so far, and you sure don't want to gum it
23 up with this thing at the last minute.
24 MR. CONRAD: Let me ask you about this, Judge, and I
25 understand how you are struggling with this issue, and whatever
548
1 the Court decides is fine with the government. But let me ask
2 you about this: We were told on Friday, all your experts have
3 the do is call our experts and they will send you whatever
4 reports they need to get. Well, we did that. Our experts were
5 on the phone with their experts over the weekend. We finally
6 got up with Dr. Cunningham today, and he said, well, I don't
7 know what the rules of discovery are, I'm not going to send you
8 any of the literature I've relied upon. So sitting here Monday,
9 at the end of the day, we still haven't got the information we
10 are entitled to under Rule 16(b) with respect to what their
11 experts relied upon. There's all sorts of articles that
12 Dr. Cunningham is going talk about, and we haven't seen them.
13 And so I would contend to Your Honor --
14 THE COURT: Did you gentlemen instruct Dr. Cunningham
15 not to send --
16 MR. LAUGHRUN: Judge, all they asked for was raw data,
17 that's all they asked for.
18 MR. CONRAD: That's not true. I asked for everything
19 I'm entitled to under Rule 16, and these guys said, all your
20 experts have to do is call ours and ask them what they need and
21 they will send it. And it wasn't just raw test data. Raw test
22 data was one of the several things that we are entitled to under
23 the rule.
24 MR. LAUGHRUN: Judge, that's what we were asked to do on
25 Friday and we tried to do it. If there were a problem, all they
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1 have got to do was pick up the phone, walk across the table and
2 say, look, we haven't got that stuff, we will try to get it to
3 you. If that's the case, we'd say -- tell Cunningham, don't
4 talk to these guys.
5 THE COURT: All right. As I say, I'll sum it up. I
6 think the government may be taken advantage of here, but I'm
7 still going to have to stick with it, I'm afraid I'm going to
8 have to rule against you, Mr. Conrad. I'm sorry, and I
9 understand your position, but we'll recess until tomorrow
10 morning at 9:30.
11 (Court in recess.)
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