72
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA, )
5 )
)
6 vs. ) File No. 3:97CR23-P
)
7 AQUILIA MARCIVICCI BARNETTE, ) SENTENCING PHASE
)
8 Defendant. )
)
9
10
11 Transcript of proceedings before the Honorable
12 ROBERT D. POTTER, Senior United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 30th day of January, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20 On Behalf of the Defendant:
21 GEORGE V. LAUGHRUN, Esq.
Suite 602
22 301 South McDowell Street
Charlotte, North Carolina 28204
23
24
25
73
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6 (Bench conference not recorded.)
7 THE COURT: Good morning. Is there anything we need to
8 put on the record before we start?
9 MR. WALKER: Your Honor, I would on behalf of the
10 government, pursuant to the notice of intent to seek the death
11 penalty which the government filed in this case back on the 7th
12 of August of 1997, we gave notice of the statutory and
13 nonstatutory aggravating factors that the government intends to
14 seek to justify a sentence of death in this case. One of the
15 statutory aggravating factors that was listed on both the
16 killing of Donald Allen as well as the killing of Robin
17 Williams, the government also listed not only as a statutory
18 aggravating factor under the heading of multiple killings in a
19 single criminal episode, but the government also pled in the
20 notice in the alternative the nonstatutory aggravating factor of
21 the defendant killed two people in that not only did the
22 defendant intently kill Donald Lee Allen but the defendant also
23 killed Robin Williams.
24 Your Honor, we have elected to proceed with that
25 alternate nonstatutory aggravating factor of the defendant
74
1 killed two people in that not only he intentionally kill Donald
2 Lee Allen, but he also intentionally killed Robin Williams. I
3 gave the defense notice of that yesterday before we began this
4 phase, and I just simply wanted to put that on the record.
5 THE COURT: All right, fine. Thank you, sir. Anything
6 else?
7 MR. LAUGHRUN: We have no objection to that, Judge. We
8 had a bench conference before this morning. The only thing that
9 was discussed there was scheduling, witnesses, and I believe
10 Mr. Conrad and Mr. Walker, and correct me if I'm wrong, that's
11 all that was discussed at the bench conference.
12 THE COURT: Thank you, sir. Call the jury.
13 (The jury returned to the courtroom.)
14 THE COURT: Good morning, ladies and gentlemen, hope you
15 had a nice evening. I have to ask you again and I'll ask you
16 this every time, have any of you seen, heard, read anything or
17 talked to anybody about this case overnight?
18 (Jurors shake heads.)
19 THE COURT: Thank you very much. They all indicate that
20 they have not. Call your first witness.
21 MR. WALKER: Your Honor, the government would call
22 Captain James Yarbrough.
23 JAMES YARBROUGH,
24 being first duly sworn, was examined and testified as follows:
25 DIRECT EXAMINATION
75
1 BY MR. WALKER:
2 Q. Sir, if you will, be aware that the microphone is fairly
3 sensitive, especially when you say the letter P, would you state
4 your full name and tell us what you do for a living?
5 A. My name is James Yarbrough. I'm a captain with Coweta
6 County Sheriff's Department, investigator.
7 Q. Okay. Now, Coweta County, what is the county seat of
8 Coweta County, Georgia?
9 A. Newnan.
10 Q. And are you employed with the sheriff's department there
11 in Newnan, Georgia?
12 A. Yes, I am.
13 Q. How long have you been in law enforcement?
14 A. This is my 21st year.
15 Q. I'm going to get you to slide back in the seat because
16 of that microphone and just speak with your normal tone if you
17 would.
18 Back in January of 1993, were you at that time working
19 as a sergeant not with the sheriff's department in Newnan,
20 Georgia but with the police department there in Newnan, Georgia?
21 A. Yes, I was.
22 Q. Did you have an occasion in January of 1993 to become
23 involved in the investigation of the defendant in this case,
24 Aquilia Marcivicci Barnette?
25 A. Yes, I did.
76
1 Q. What was the -- if you would, relate to the members of
2 the jury the nature of that investigation.
3 A. Back in January of '93, around the 23rd, Ms. Crystal
4 Dennis came to us and reported that her two children had been
5 beaten with a coat hanger by the defendant. She had gone to
6 work, worked a second shift job, and she left the defendant
7 baby-sitting her children. They are not his children. It was a
8 three-year-old year and a five-year-old. The three-year-old was
9 the son, the five-year-old was the daughter. And he disciplined
10 them with a metal coat hanger, leaving welts and scars on the
11 children.
12 Q. After Ms. Crystal Dennis reported that to your
13 department, did you follow up in that investigation?
14 A. Yes, I did.
15 Q. Tell the members of the jury exactly what you did
16 pursuant to that investigation.
17 A. I notified our local department of family and children
18 services. Also, I took photographs of the victims in the crime.
19 Q. You talked to Crystal Dennis about what happened?
20 A. Yes, I did.
21 Q. And did you also actually go look at the two infant
22 children of Crystal Dennis?
23 A. Yes, I did.
24 Q. Did you complete a report as is your custom with
25 investigations of that nature?
77
1 A. Yes, I did.
2 Q. And I believe you also said that you took some
3 photographs, is that right?
4 A. That is correct.
5 MR. WALKER: May I approach the witness, Your Honor?
6 THE COURT: Yes, sir.
7 BY MR. WALKER:
8 Q. Captain, I'm going to show you what I have marked
9 previously as Government's Exhibit 53A. It consists of 1, 2, 3,
10 4, 5, 6, 7 -- 23 pages. Is that the report and your complete
11 file in this case concerning the investigation of the defendant
12 in this case and the beating of Crystal Dennis's infant
13 children?
14 A. Yes, it is.
15 Q. Okay. Referring your attention to Page 1 of that
16 report, if you would just flip through each of the documents in
17 the report and indicate what those are to the members of the
18 jury.
19 A. The first one is the case instant report. It lists the
20 cruelty to children and simple battery charges, and it tells a
21 little bit about what occurred.
22 Q. And what do you have listed there on the first page, if
23 you would, the narrative at the bottom?
24 A. Ms. Crystal Dennis reported to Newnan police that on
25 1-23-93, while she was working second shift, she left her
78
1 children with her boyfriend, the above suspect, Aquilia
2 Barnette, at her residence at 1-C Pinewood Villa Apartments in
3 Newnan. During the period of time between 4:00 and 12:00 p.m.,
4 the above suspect struck the two children, ages three and five,
5 with a metal coat hanger, causing excessive physical pain, welts
6 and scarring. The children told their mother about the incident
7 the next morning, and on 1-25-93, Ms. Dennis confronted Barnette
8 over the incident of whipping her children with a metal clothes
9 hanger, and the suspect and Ms. Dennis had an argument that
10 became a fight with the suspect striking and choking
11 Ms. Dennis.
12 The suspect then left the residence, and Ms. Dennis
13 notified Newnan police. Also the department of family and
14 children services were notified. After interviewing the
15 children and Ms. Dennis, police had warrants issued for the
16 arrest of Barnette for two counts of cruelty to children and one
17 count of simple battery for striking Ms. Dennis. The suspect
18 was arrested on 1-28-93 when he returned to the residence in
19 Pinewood Villas. The suspect was transferred to the county jail
20 after questioning, and bond has not been set at the time of this
21 report.
22 Q. Okay. Now, I believe the last part of what you just
23 read was on Page 2 of your report, is that correct?
24 A. That's correct.
25 Q. Your report also has, and correct me if I'm wrong, as I
79
1 flip through it, there is a sheet in here called the arrest and
2 booking report, is that right?
3 A. That's correct.
4 Q. And there is also a sheet in here, the back of this
5 sheet indicates the state warrant, the state warrants that were
6 taken out against the defendant for these two counts, is that
7 right?
8 A. That is right.
9 Q. And there are also some other documents concerning an
10 application for a criminal arrest warrant, as well as the actual
11 indictment of the defendant for the two counts, is that right?
12 A. That is correct.
13 Q. And lastly, I want to turn your attention to the next to
14 the last page. There is in your report, is there not, a
15 document entitled waiver of counsel signed by the defendant in
16 the case, Aquilia Marcivicci Barnette, is that right?
17 A. That is correct.
18 Q. I'm going to come back and ask you about that.
19 MR. WALKER: But in the meantime, Your Honor, I would
20 move admission of Government's Exhibit 53A, this captain's
21 report in this matter.
22 THE COURT: Let it be admitted.
23 BY MR. WALKER:
24 Q. I will let you hold onto that and refer to that if you
25 need to during your testimony, Captain Yarbrough.
80
1 Captain Yarbrough, let me now turn your attention, you
2 indicated that you took photographs of Ms. Dennis's two kids, is
3 that right?
4 A. That's right.
5 Q. What were the ages of the kids at the time of this
6 incident?
7 A. Young male was three years old, that was Mario Weaver,
8 and Jennifer Nicole was five, female.
9 Q. And did your investigation reveal whether at the time
10 the defendant was living with Crystal Dennis at that apartment
11 location?
12 A. Yes, he was.
13 Q. Okay. Referring your attention now to Government's
14 Exhibits 52A through 52H, 52A, 52B, 52C, 52D, 52E, 52F, 52G and
15 52H, you indicated that you took photographs of her two kids, is
16 that right?
17 A. Yes, I did.
18 Q. Flipping through those exhibits, are those the
19 photographs that you took of Crystal's two kids?
20 A. Yes, it is.
21 Q. And do they fairly and accurately show the injuries that
22 you saw on the children while you were investigating this case?
23 A. Yes.
24 MR. WALKER: Your Honor, I would move admission of all
25 of these photographs, those being Government's Exhibits 52A
81
1 through 52H.
2 THE COURT: Let them be admitted.
3 BY MR. WALKER:
4 Q. Now, there is a hand shown in the photograph pointing
5 out a couple of the injuries. Is that your hand?
6 A. No, it's not.
7 Q. Whose hand is that, another investigator that was with
8 you?
9 A. That was the investigator from the department of family
10 and children services.
11 Q. And were you taking the photographs?
12 A. I took the photographs.
13 Q. And lastly, 52G and 52H, those two photographs are
14 photographs of Crystal Dennis, is that correct?
15 A. That is correct.
16 Q. And did you -- why did you take those photographs?
17 A. Because she was struck by the defendant when she
18 confronted him about the injuries to her children.
19 Q. Did you notice a bruise about her head or face when --
20 is that the reason you took those photographs?
21 A. Yes.
22 Q. Okay. And lastly, Captain Yarbrough, pursuant to your
23 investigation in this case, you interviewed the defendant, is
24 that right?
25 A. Yes, I did.
82
1 Q. That was on the 28th of January of 1993, is that right?
2 A. That's right.
3 Q. And explain if you would to the members of the jury the
4 process that you go through, whether you advise him of his
5 rights according to Miranda, what you do and what happened in
6 that particular case as far as advising him of his rights.
7 A. I advised the defendant of his rights under Miranda. I
8 read the Miranda rights to him. I have him look over the rights
9 form, and if he wishes to talk to me, he signs the rights form
10 and I conduct the interview in reference to the charges and what
11 I'm questioning him about.
12 Q. Did the defendant indicate that he understood your
13 questions to him and your reading of his Constitutional rights
14 to him?
15 A. Yes, he did.
16 Q. After you instructed that those were his rights, did he
17 indicate that he wished to talk to you about the incident?
18 A. Yes.
19 Q. And did you take a statement from him?
20 A. Yes, I did.
21 Q. Okay. Captain, Government's Exhibit 53B, is this a --
22 is this the typed statement that you reported of the defendant's
23 statement to you about this incident?
24 A. Yes, it is.
25 MR. WALKER: Your Honor, I would move admission of
83
1 Government's Exhibit 53B.
2 THE COURT: Let it be admitted.
3 BY MR. WALKER:
4 Q. When you interviewed the defendant about these two
5 incidents, Captain Yarbrough, referring your attention to that
6 statement, what did he tell you happened? And you can just read
7 that from the top to the bottom if you would.
8 A. It's on 1-28-93, and our case number. The following is
9 an interview with Aquilia Barnette, black male, date of birth
10 7-7-73, Social Security number 243-57-1534, whose address is
11 5501 Glenridge Drive, Atlanta, Georgia. Suspect Barnette is
12 under arrest on a warrant for simple battery and has been read
13 his rights under Miranda and has read and signed a waiver of
14 counsel form. The interview is taking place at the Newnan
15 Police Department.
16 Barnette states that he had been living with his
17 girlfriend at 1-C Pinewood Villa Apartments in Newnan. Barnette
18 told police that his girlfriend is Crystal Dennis, and as of
19 late, they have been having problems. Barnette told police that
20 back last week, he can't remember the date, he kept the children
21 belonging to Crystal Dennis. The are Mario Weaver, who is three
22 years old, and Jessica Nicole Dennis, who was five years old.
23 Barnette told police that on occasions he had to discipline the
24 children, and that on one occasion he used a metal clothes
25 hanger to whip the children with. Barnette stated that he
84
1 whipped the boy for taking the laces from his shoes but that he
2 doesn't remember why he whipped the girl.
3 Barnette told police that he and Crystal had problems
4 over the discipline of the children since the children weren't
5 Barnette's and that Crystal's mother sometimes became involved.
6 Barnette stated that he used the clothes hanger as a switch on
7 the children, and after Crystal complained to him about striking
8 her children, that he quit doing it. Barnette stated that on
9 some occasions he struck Crystal when they argued, but not
10 often. Barnette stated that he believes that these charges are
11 because of Crystal's mother's involvement, and that if he is
12 left alone with Crystal, they can work out the problems.
13 Barnette stated that he was just punishing the children for
14 doing whatever it was they shouldn't have done and that he
15 didn't intend to abuse them.
16 Q. Now, you specifically asked him, did you not, why it was
17 that he disciplined the children with the coat hanger, is that
18 right?
19 A. Yes, I did.
20 Q. And he told you that he whipped the boy for taking the
21 laces from his shoes, is that what he said?
22 A. That's what he told me.
23 Q. And then he said but he doesn't remember why he whipped
24 the girl, is that what he told you?
25 A. That's correct.
85
1 Q. These -- your investigation ultimately led to two
2 convictions of the defendant, is that correct, for felonious
3 cruelty to children?
4 A. That's correct.
5 MR. WALKER: Your Honor, may I move, pass to the jury
6 for their review Government's Exhibits 53B, 53A, 52A through
7 52H?
8 THE COURT: Yes.
9 MR. WALKER: I don't have any other questions, Your
10 Honor.
11 CROSS-EXAMINATION
12 BY MR. LAUGHRUN:
13 Q. Captain Yarbrough, when you asked Mr. Barnette his
14 rights concerning Miranda, you didn't ask him to sign the
15 statement, did you?
16 A. Sign the statement?
17 Q. The statement he gave you?
18 A. No, I did not ask him to sign the statement. He did
19 sign the waiver form under Miranda, yes.
20 Q. Understood his rights?
21 A. Yes, sir.
22 Q. And you're confident in your own mind he understood
23 those rights?
24 A. Yes, sir.
25 Q. Didn't record the statement he gave you that you just
86
1 read to the jury, you didn't tape record it in any way?
2 A. No, sir.
3 Q. And when he -- when he gave you the statement, you are
4 confident that he had his wits about him and knew what he was
5 doing, right?
6 A. That's correct.
7 Q. In fact, he came into court with a lawyer, did he not?
8 A. Yes, he did.
9 Q. A lawyer named Walter Hagan?
10 A. That's correct.
11 Q. Came in and pled guilty to the charges?
12 A. Yes, he did.
13 Q. Didn't try to contest any of them in any way, did he?
14 A. No, he did not.
15 Q. In fact, his lawyer didn't file a suppression motion to
16 try to keep that statement that you read to the jury out of
17 evidence, did he?
18 A. No, he did not.
19 Q. Came in and accepted his responsibility for what he did?
20 A. Yes, he did.
21 Q. And was cooperative with you fully, was he not?
22 A. Yes, he did.
23 Q. Captain Yarbrough, how long after the original complaint
24 was made by -- was the original complaint made by Crystal Dennis
25 or by her mother?
87
1 A. I'm not exactly sure, but they called from the mother's
2 residence and let us know about it.
3 Q. How much time elapsed between the time, if you know,
4 that the incident happened and the time Mark was arrested?
5 A. From the 23rd when the incident happened to, I believe
6 it was the 27th or the 28th. The date of the -- that's on the
7 waiver, that's the same date he was arrested.
8 Q. And if that label would say January 28th, '93, that
9 would be the date of the arrest, is that correct?
10 A. That is correct.
11 Q. Now, Captain, were you present in court when
12 Mr. Barnette pled guilty in Newnan?
13 A. Yes, I was.
14 Q. He was given a probationary sentence, was he not?
15 A. Yes, he was.
16 Q. And ordered to undergo some counseling and family
17 services type counseling, is that a fair statement?
18 A. Yes.
19 MR. LAUGHRUN: Thank you, Judge Potter.
20 MR. WALKER: Your Honor, I neglected to ask him --
21 REDIRECT EXAMINATION
22 BY MR. WALKER:
23 Q. Newnan, Georgia is about 30 miles south of Atlanta, is
24 that right?
25 A. Approximately 45 south of Atlanta, yes.
88
1 MR. WALKER: That's the only question I had for him.
2 THE COURT: Thank you, sir, come down. Call your next
3 witness.
4 MR. WALKER: Your Honor, we would call Natasha Heard.
5 NATASHA HEARD,
6 being first duly sworn, was examined and testified as follows:
7 DIRECT EXAMINATION
8 BY MR. WALKER:
9 Q. Natasha, I'm going to get you to sit back in that chair,
10 sit up straight if you would, and then that microphone in front
11 of you is very sensitive, so just talk in your normal tone of
12 voice so that all of the members of the jury can hear you.
13 Would you tell us your full name and spell your last
14 name?
15 A. Natasha Heard, H-E-A-R-D.
16 Q. Okay. Natasha, how old are you right now?
17 A. 23.
18 Q. Do you live in Newnan, Georgia?
19 A. Yes, I do.
20 Q. Do you know the defendant in this case, Mark Barnette?
21 A. Yes, I'm the mother of his children.
22 Q. Pardon me?
23 A. I'm the mother of his children.
24 Q. How many children do you have with the defendant?
25 A. Two.
89
1 Q. When was last time you saw the defendant?
2 A. Maybe five years, six years ago.
3 Q. What are the names of the children that you had with the
4 defendant?
5 A. Angelica Heard and Aquilia Heard.
6 Q. How old are your two kids now?
7 A. Six and seven.
8 Q. Do you remember where you were living -- were you living
9 in Newnan, Georgia when you first met the defendant?
10 A. No.
11 Q. Where were you living?
12 A. In Lithonia.
13 Q. Lithonia, Georgia?
14 A. Yes.
15 Q. Where is Lithonia, Georgia in relation to Atlanta,
16 Georgia?
17 A. Maybe 20 miles.
18 Q. And how close is Lithonia, Georgia to Newnan, Georgia?
19 A. I would say 45 miles.
20 Q. You were living in Lithonia, were you living in a house
21 or an apartment when you first met the defendant, what were you
22 living in?
23 A. Apartments.
24 Q. How old were you when you met him?
25 A. 14.
90
1 Q. Did you continue to live in Atlanta after you first met
2 the defendant or at some point, did you move?
3 A. At some point, I moved.
4 Q. After you first met the defendant, describe to the jury
5 what kind of relationship, did you have a dating relationship
6 with him right off the bat or what happened?
7 A. Yes, I did.
8 Q. And then at some point, you say you moved. Where did
9 you move to?
10 A. Coweta County.
11 Q. You moved to Newnan, is that right?
12 A. Yes.
13 Q. And do you have relatives in Newnan?
14 A. Yes.
15 Q. I believe your grandmother lived in Newnan at the time
16 that you moved from Lithonia?
17 A. Yes.
18 Q. What was your -- were you dating the defendant then when
19 you moved to Newnan?
20 A. Yes, I was.
21 Q. You were?
22 A. Uh-huh.
23 Q. Were you just dating him exclusively?
24 A. Yes.
25 Q. Sometime after you moved to Newnan well, let me first
91
1 ask you this. When you first moved to Newnan, who were you
2 living with?
3 A. My grandmother.
4 Q. Sometime after that, did you move out of your
5 grandmother's house?
6 A. Yes, I did.
7 Q. And did you move into another residence?
8 A. Yes, I did.
9 Q. Was that an apartment or a house?
10 A. It was an apartment.
11 Q. And did the defendant ever come live with you at that
12 apartment?
13 A. Yes, we did.
14 Q. Had you already had your two children with the defendant
15 at that point, or tell us if you could the time sequence of how
16 that occurred.
17 A. Angelica was born and Mark was born and then we moved
18 in.
19 Q. Okay. To the apartment in Newnan?
20 A. Yes.
21 Q. What were the names of those apartments?
22 A. Chestnut Lane.
23 Q. Who all lived at the apartment other than you and the
24 defendant, your two kids?
25 A. Yes.
92
1 Q. So there were four of you altogether?
2 A. Yes.
3 Q. Describe if you would to the members of the jury how you
4 would characterize your relationship with Mark Barnette.
5 A. Nervous.
6 Q. Why do you say nervous?
7 A. Because he made you nervous.
8 Q. What would he do to you, if anything?
9 A. He would hit me.
10 Q. Where would he hit you?
11 A. All over.
12 Q. How would he hit you, he'd hit you with his fists?
13 A. Yes.
14 Q. Was there a particular incident in particular when you
15 were pregnant with one of your kids that you remember?
16 A. Yes.
17 Q. Will you tell the members of the jury what he did to you
18 on that occasion?
19 A. Well, we had got to arguing and I was getting off the
20 bus, and next thing I know, he picked me up and slammed me on
21 the concrete.
22 Q. And you were pregnant at the time?
23 A. Yes, I was.
24 Q. Which child were you pregnant with at that point?
25 A. Angelica.
93
1 Q. After that incident, did you see the defendant later on
2 that night? Tell the jury what happened that night when he
3 slammed you onto the concrete.
4 A. Yes. He came over to my house, well, to the window, and
5 I opened the window and he was like, what is going on, and I had
6 told him that I went to the hospital, because I wanted to see
7 was he sorry for doing it.
8 Q. Had you really gone to the hospital?
9 A. No.
10 Q. So you lied to him?
11 A. Yes.
12 Q. Why did you -- tell the jury why you told him you had
13 gone to the hospital when you really hadn't gone?
14 A. To see if he cared.
15 Q. And what, if anything, did he say to you when you told
16 him you'd gone to the hospital?
17 A. I don't remember. I don't think he said anything.
18 Q. You said the last time you saw the defendant was five
19 years ago, is that right?
20 A. Yes.
21 Q. Has he called you in the last five years?
22 A. One time, yes.
23 Q. And was that after he was arrested for the murders of
24 Donnie Allen and Robin Williams?
25 A. No.
94
1 Q. So he's called one time in the last five years?
2 A. Yes.
3 Q. Does he call on Christmas day?
4 A. No, sir.
5 Q. Does he call on your children's birthday?
6 A. No.
7 Q. Does he call on Thanksgiving?
8 A. No.
9 Q. Does he send you money in the mail?
10 A. No.
11 MR. WALKER: I don't have any further questions, Your
12 Honor.
13 THE COURT: Cross?
14 CROSS-EXAMINATION
15 BY MR. WILLIAMS:
16 Q. Natasha, you remember me, I'm Paul Williams, I met you
17 in Newnan, Georgia, matter of fact, the day after Christmas, we
18 chatted over lunch, didn't he?
19 A. Yes.
20 Q. I want to go into some more detail with your
21 relationship with Mark, appreciate you answering these
22 questions. When you first met Mark, it was what, 1989, you
23 think?
24 A. Yes.
25 Q. Was it -- is it hard to remember dates and things for
95
1 you?
2 A. Yes.
3 Q. Okay. Was it warm when you met him?
4 A. Yes.
5 Q. Were you 14 years old when you met him?
6 A. Yes, sir, I was.
7 Q. And you met him at a swimming pool outside when it was
8 warm, is that right?
9 A. That's correct.
10 Q. And Mark was by himself?
11 A. Yes.
12 Q. And this was in Lithonia, is that correct?
13 A. Yes.
14 Q. And you were in the 8th grade and he was in the 11th
15 grade, is that correct?
16 A. Yes.
17 Q. And I believe that at the time, Mark was living with his
18 mother and his brother Mario in some apartments in Lithonia, is
19 that correct?
20 A. That's correct.
21 Q. And at the time when you met him, that you and your --
22 were living in Lithonia with your mother and your sister?
23 A. Yes.
24 Q. And when you first met Mark, is it fair to say that you
25 and he were best buddies?
96
1 A. Yes, it was.
2 Q. Is that the term you used to me when you described it?
3 A. (Nods head.)
4 Q. What did you -- when you first met him, did you learn
5 from Mark that was he quiet or was he outgoing?
6 A. He was quiet.
7 Q. Pretty quiet person?
8 A. Uh-huh.
9 Q. Did he have a portfolio with him that had some art that
10 he had drawn?
11 A. Yes.
12 Q. And did he show you the art that he had drawn?
13 A. Yes.
14 Q. Did he also like model cars?
15 A. Yes.
16 Q. Would he build model cars as one of his hobbies?
17 A. Yes.
18 Q. And would show that to you and that was part of your
19 relationship?
20 A. Yes.
21 Q. Even though he was kind of quiet, you were more
22 outgoing, is that correct?
23 A. Yes.
24 Q. And the incident that you talked about, and I'm asking
25 these questions not to -- just to explain, not to excuse
97
1 anything, but the incident that you talked about when you were
2 pregnant, you and Mark had been in underground Atlanta at the
3 time, is that correct?
4 A. That's correct.
5 Q. And Mark had talked to a girl or some girl had talked to
6 him while you were there, is that correct?
7 A. That's correct.
8 Q. And there was an argument because of that?
9 A. That's right.
10 Q. And then I believe you told me that as a result of that
11 argument, you slapped him?
12 A. Yes, I did.
13 Q. And at the time, then you took the bus back to Lithonia
14 and you were talking to some friend on the bus that you knew but
15 Mark didn't know, is that correct?
16 A. That's correct.
17 Q. And as a result of you talking with the friend on the
18 bus, Mark became angry?
19 A. Yes.
20 Q. He became jealous?
21 A. Yes.
22 Q. And when you got off the bus, there was a further
23 argument and he threw you on the ground as you have testified,
24 is that right?
25 A. That's correct.
98
1 Q. Mark wouldn't let you wear makeup, would he?
2 A. No.
3 Q. Did he ever tell you why?
4 A. No.
5 Q. On numerous occasions, Mark would accuse you of being
6 unfaithful, wouldn't he?
7 A. Yes.
8 Q. And when Mark would assault you or hit you or strike you
9 as you have told the jury, this was sort of normal, I mean, you
10 thought this was sort of normal you told me, isn't that correct?
11 A. That's correct.
12 Q. Tell the jury why you thought that was sort of normal
13 behavior.
14 A. I thought it was normal behavior because my mother and
15 father was in an abusive relationship.
16 Q. And you -- the relationship you had been in, your father
17 beat your mother?
18 A. Yes.
19 Q. Beat you?
20 A. Yes.
21 Q. Beat your sister?
22 A. Yes.
23 Q. So this relationship that developed with Mark and what
24 was going on in that relationship was something sort of normal
25 to you?
99
1 A. Yes.
2 Q. But it still made you very upset obviously and made you
3 very nervous, isn't that correct?
4 A. Yes.
5 Q. You had some disagreements with your mom over this
6 relationship with Mark, is that correct?
7 A. Yes.
8 Q. And she thought you were sort of antisocial?
9 A. Yes.
10 Q. And you would go to your room and watch TV and Mark
11 would sneak into your room, wouldn't he?
12 A. Yes.
13 Q. And when he would sneak into your room while watching
14 TV, did you guys have sex then?
15 A. Yes.
16 Q. And sometimes when Mark would sneak into your room, you
17 and Mark would go into the closet, wouldn't you?
18 A. Yes.
19 Q. And you guys would sit in the closet, is that correct?
20 A. Yes.
21 Q. And sometimes when you were sitting in the closet in
22 your room, Mark would begin to cry?
23 A. Yes.
24 Q. And how often would he cry when he was in that closet?
25 A. I would say maybe twice a week.
100
1 Q. Twice a week. And when he was in that closet crying
2 twice a week, he would tell you about his family, wouldn't he?
3 A. Yes.
4 Q. And you would tell him about your family, correct?
5 A. Correct.
6 Q. And you and he would talk about, I believe you told me,
7 how we were done when we were young, is that a fair statement?
8 A. That's a fair statement.
9 Q. And what you meant by that was what, tell the jury what
10 you meant by that, what you guys were talking about.
11 A. Things we went through, like parents fighting and
12 getting beat and things of that nature.
13 Q. Okay. And did Mark ever talk to you during those times
14 about how there was no food in the house?
15 A. I believe so, but my memory is not that good.
16 Q. Did he talk about his daddy?
17 A. Yes, he loved Derrick.
18 Q. He loved Derrick very much, didn't he?
19 A. Yes, he did.
20 Q. And he told you that he wanted to see his father while
21 he was in this relationship with you, that he wanted to see his
22 father but couldn't?
23 A. Yes.
24 Q. And he also told you that he was mad with his mother
25 because she never had time with him, is that true?
101
1 A. Yes.
2 Q. Is that what you told me?
3 A. Yes.
4 Q. Is that a fair statement, is that true, what he told
5 you?
6 A. Yes.
7 Q. Did you ever go over to the apartment where he and his
8 mother and Mario lived?
9 A. Yes, I have.
10 Q. Was there food in the house?
11 A. No.
12 Q. Was there liquor in the house?
13 A. Yes.
14 Q. How much liquor?
15 A. I don't know exactly how much, but I know that I seen
16 like wine bottles or whatever in the fridge, but not food.
17 Q. When you'd go over to the apartment where Mark and his
18 brother Mario were, Sonia would stay in her room, wouldn't she?
19 A. Yes.
20 Q. And during the time that you would go over there, you
21 would see his mother get drunk, wouldn't you?
22 A. No, I wouldn't say that, because I -- no.
23 Q. Well, did you say she was -- did you tell me she was
24 tipsy?
25 A. Yes, I told you she was tipsy.
102
1 Q. Did you tell me that she was always drinking wine?
2 A. Yeah.
3 Q. Is that a fair statement?
4 A. That's a fair statement.
5 Q. Did Mark ever tell you that his mama whipped him with an
6 extension cord?
7 A. Not to my memory.
8 Q. You were together about three or four years, is that
9 right?
10 A. Yes.
11 Q. Would you say there was -- when you were in the house
12 with his mother, was there constant drinking, alcohol?
13 A. Say that again.
14 Q. Was there a lot -- was it a fact that when you were in
15 the house where Mark lived with his mother, did you see a lot of
16 evidence of drinking alcohol?
17 A. Yes.
18 Q. You did?
19 A. Yes.
20 Q. And when you first met with Mark and first got to know
21 him, the relationship was good at the beginning, wasn't it?
22 A. Yes.
23 Q. And he was attentive to your needs?
24 A. Yes.
25 Q. To begin with?
103
1 A. Yes.
2 Q. And then something happened, something changed, didn't
3 it?
4 A. Yes.
5 Q. When you all were dating, did he drop out of school?
6 A. Yes, he did.
7 Q. Did he get a job?
8 A. No.
9 Q. Did you beg him to get a job?
10 A. No.
11 Q. Did you ever see any evidence of Mark being involved
12 with alcohol or drugs?
13 A. No.
14 Q. So he wasn't involved with alcohol or drugs, but his
15 mother was?
16 A. Yes.
17 Q. Or at least alcohol?
18 A. Yes.
19 Q. There was about four months' time between the time that
20 you met and you got pregnant, isn't that right?
21 A. Yes.
22 Q. And when you first got pregnant, Mark was, would you
23 describe him as being very affectionate towards you when you got
24 pregnant, at the beginning?
25 A. Yes. (Nods head.)
104
1 Q. Was he happy about Angelica coming into the world?
2 A. I don't remember.
3 Q. He helped you paint the room?
4 A. Yeah.
5 Q. He helped you set up the nursery?
6 A. Yes.
7 Q. He was excited at first about having a child, wasn't he?
8 A. Yeah, I guess.
9 Q. And shortly after she was born, then he changed, didn't
10 he?
11 A. Yes.
12 Q. Was he affectionate with Angelica?
13 A. Yes.
14 Q. Was he there when she was born?
15 A. Yes, he was.
16 Q. Did he do something about a newspaper when Angelica was
17 born, was there something about a newspaper that you recall?
18 A. Yes. He went out and bought the, I think the first
19 edition, morning edition news and kept it as a keepsake so when
20 she got older, that she could look back and see what was going
21 on that day she was born.
22 Q. So is it fair to say that when she was born, he went out
23 and bought the newspaper and wanted Angelica to know what was
24 going on in the world the day that she was born when she grew
25 up, is that correct?
105
1 A. (Nods head.)
2 MR. WILLIAMS: Approach the witness, Your Honor?
3 THE COURT: Yes, sir.
4 BY MR. WILLIAMS:
5 Q. Natasha, I'm going to hand you what appears to be a
6 newspaper, and it's marked for the purposes of identification as
7 Defendant's Exhibit Number 40. First, tell me what that exhibit
8 is.
9 A. It's the newspaper that he bought the day that she was
10 born.
11 Q. What is the date on the newspaper?
12 A. September 29, 1990.
13 Q. Did he tell you he was going to save that newspaper?
14 A. Yes.
15 Q. When little Mark was born, and I believe you referred to
16 him as little Mark?
17 A. Uh-huh.
18 Q. He was about two months old when you and Mark Barnette,
19 seated next to me, separated, correct?
20 A. Uh-huh.
21 Q. Angelica is now how old?
22 A. Seven.
23 Q. How is she doing?
24 MR. CONRAD: Objection.
25 MR. WALKER: Objection.
106
1 THE COURT: Sustained.
2 BY MR. WILLIAMS:
3 Q. Mark is how old, little Mark?
4 A. He is six.
5 Q. Has she developed any problems -- has he developed any
6 problems?
7 MR. WALKER: Objection.
8 THE COURT: Sustained. That really has no relevance in
9 this.
10 BY MR. WILLIAMS:
11 Q. Did you know about a person named Anthony Britt?
12 A. Yes.
13 Q. Is it true that Anthony Britt is now dead?
14 A. Yes.
15 Q. And did he die from being shot?
16 A. Yes.
17 Q. And is it true that you and I talked about Anthony Britt
18 when I came down there to see you?
19 A. Yes.
20 Q. Isn't it true that you described him as a big, bad
21 bully?
22 A. Yes.
23 Q. And you described him to me that he jumped on the wrong
24 person one too many times?
25 A. Yes.
107
1 Q. And as a result of that, he was shot and killed
2 recently, wasn't he?
3 A. Yes.
4 Q. About how long ago?
5 A. Two months.
6 Q. And Anthony Britt and Mark Barnette, seated next to me,
7 were involved in some difficulty at one time, weren't they?
8 A. Yes.
9 Q. And you knew about that?
10 A. After.
11 Q. After it happened?
12 A. Uh-huh.
13 Q. And to give the jury a sense of the relationships here,
14 isn't it true that you were dating or living with Mark Barnette?
15 A. Yes.
16 Q. And somehow he began to start dating Crystal, is that
17 correct?
18 A. Correct.
19 Q. And that's Crystal Dennis?
20 A. Yes.
21 Q. And it's true, is it not, that Anthony Britt introduced
22 Mark Barnette to Crystal Dennis?
23 A. Yes, it is.
24 Q. And you learned, did you not, that the reason that
25 Anthony Britt introduced Mark to Crystal Dennis or Crystal
108
1 Dennis to Mark was so that Anthony Britt could start seeing you
2 and date you?
3 A. Yes, it is.
4 Q. And there was some -- this relationship between you and
5 Anthony Britt and Crystal Dennis sort of developed into a feud,
6 didn't it?
7 A. Yes.
8 Q. And as a result, Mark was charged with doing something
9 or was involved in an incident doing something to Anthony Britt,
10 wasn't he?
11 A. Yes.
12 Q. And after you and Mark Barnette split up, Crystal Dennis
13 moved in, didn't she?
14 A. Yes.
15 Q. Mark Barnette was never abusive to his children, was he?
16 A. No.
17 Q. He never hit or was abusive to Angelica or little Mark?
18 A. No.
19 Q. Do you now want --
20 MR. CONRAD: Objection.
21 THE COURT: Well, wait until he gets the question.
22 MR. CONRAD: I would ask that the question be proffered
23 to the Court outside the presence of the jury.
24 THE COURT: All right.
25 (Bench conference not recorded.)
109
1 THE COURT: Do you have any further questions of this
2 witness?
3 MR. WILLIAMS: One moment, Your Honor.
4 BY MR. WILLIAMS:
5 Q. Isn't it true that you brought the children up to
6 Charlotte, North Carolina to spend a considerable amount of time
7 with their father?
8 A. Yes.
9 Q. Do you remember what year that was?
10 A. No.
11 Q. Do you remember whether or not you volunteered to do
12 that or whether Sonia, his mother, Mark Barnette's mother,
13 requested that or Mark requested that, do you remember how that
14 came about?
15 A. I think she requested it.
16 Q. And you actually brought the children to Mark's home
17 here in Charlotte and they stayed with he and his mother for
18 about three or four months?
19 A. Yes.
20 Q. Do you remember if that was in 1994 or 1995?
21 A. I don't remember.
22 MR. WILLIAMS: I believe that's all at this time, Your
23 Honor.
24 THE COURT: Redirect?
25 MR. WALKER: Briefly.
110
1 REDIRECT EXAMINATION
2 BY MR. WALKER:
3 Q. Ms. Heard, you indicated the other day when I talked to
4 you about this that you had, quote, blocked a lot of this out,
5 end quote, do you remember telling me that?
6 A. Yes.
7 Q. Tell the members of the jury what you mean by that.
8 A. I've been through so much that I just blocked it out.
9 Q. Did you ever see the defendant drink alcohol around you?
10 A. No.
11 Q. Did he ever even talk about drinking alcohol?
12 A. No.
13 Q. Did he ever use illegal drugs?
14 A. No.
15 Q. Did he ever even talk about using illegal drugs?
16 A. No.
17 MR. WALKER: May I have just a moment, Your Honor.
18 BY MR. WALKER:
19 Q. You are raising your kids, is that right?
20 A. That's right.
21 Q. Have you ever beaten them with a metal coat hanger?
22 A. No.
23 MR. WALKER: I don't have any other questions, Your
24 Honor.
25 THE COURT: Thank you, come down. You might want to
111
1 speak to your attorneys just a minute on the way out,
2 please -- not your attorneys, but the defendant's.
3 Ms. Heard, go over here and speak to Mr. Laughrun just a
4 minute.
5 Ready for your next witness?
6 MR. WALKER: We are, Your Honor.
7 THE COURT: Call your next witness.
8 MR. WALKER: Your Honor, the government would call
9 Crystal Dennis.
10 CRYSTAL DENNIS,
11 being first duly sworn, was examined and testified as follows:
12 DIRECT EXAMINATION
13 BY MR. WALKER:
14 Q. Crystal, I'm going to tell you that that microphone is
15 kind of sensitive in front of you, so if you'll just sit up
16 straight in the chair and talk in your normal tone of voice,
17 that will pick it up pretty good.
18 Would you state your full name, please?
19 A. Crystal Elaine Dennis.
20 Q. And Ms. Dennis, how old are you right now?
21 A. 24.
22 Q. You live in Newnan, Georgia, is that right?
23 A. Yes, I do.
24 Q. Have you lived in Newnan, Georgia your entire life?
25 A. Yes, I have.
112
1 Q. What do you do down there for a living?
2 A. I work at Payless Shoe Stores.
3 Q. Do you know the defendant in this case, Mark Barnette?
4 A. Yes, I do.
5 Q. When was it when you first met Mark Barnette?
6 A. I think it was the spring of 1992.
7 Q. Do you remember meeting him?
8 A. Yes, I do.
9 Q. If you would, I'm going to get you to speak up just a
10 little bit, would you tell the members of the jury what you
11 remember about your first meeting of the defendant?
12 A. Well, when I first met him, he was sweet. But
13 afterwards, I moved in with him, he was a cold hearted mother
14 fucker, he was just -- he was real cold hearted.
15 Q. Let me back up just a little bit. Do you remember, was
16 there an incident when -- did you start dating him right off the
17 bat or tell the jury about that, was there some time period
18 before you started dating him?
19 A. Well, we really didn't start dating until after him and
20 Natasha was finished, and that's when we seriously got involved.
21 Q. Did you move in with him?
22 A. Yes, I moved in with him.
23 Q. Was that at some apartments in Newnan?
24 A. Uh-huh.
25 Q. Tell the jury the name of the apartments.
113
1 A. It was Chestnut Lane Apartments.
2 Q. Was that in the summer of 1992?
3 A. Yes, it was.
4 Q. Crystal, you have -- you had at the time two children?
5 A. Yes.
6 Q. Now, those children were not by the defendant, is that
7 right?
8 A. No, huh-uh.
9 Q. So you -- had you already had those two kids at the time
10 that you moved in with the defendant?
11 A. Yes, I did.
12 Q. How old are your two kids now?
13 A. My daughter is ten and my son is eight.
14 Q. And what are their names?
15 A. Jessica and Mario.
16 Q. Describe if you would your relationship with the
17 defendant when you first moved in with him.
18 A. When I first moved in with him, you know, everything was
19 fine. I would say probably three to six months afterward, it
20 went real bad. He was cold hearted.
21 Q. Let me ask you some questions about that. Was he ever
22 violent towards you?
23 A. Yes, he was.
24 Q. Tell the jury how he was violent towards you.
25 A. Well, it started off with just the little things as far
114
1 as like the clothes I wear, as far as getting in the bathtub,
2 stuff like that, he would come in the bathroom, he would stick
3 his fingers in me, he said that he thought I was messing around
4 on him or --
5 Q. He thought you were cheating on him?
6 A. Yeah.
7 Q. Were you?
8 A. No.
9 Q. Did he ever hit you?
10 A. Yeah, we -- well, he would jump on me occasionally. It
11 had got to where he would start beating on me probably twice a
12 week.
13 Q. Where would he hit you?
14 A. Anywhere he could, face, if he could kick me if I balled
15 up to keep him from blacking my eyes, he would kick me, you
16 know.
17 Q. I want to turn your attention to January the 23rd of
18 1993. You were living with him at that apartment back on the
19 23rd of January of 1993, right?
20 A. Uh-huh.
21 Q. That morning on January the 23rd, did you have a
22 conversation with your son, Mario?
23 A. Yes, I did.
24 Q. Tell the jury how that happened.
25 A. I was in my room asleep and Mark had left, and my son
115
1 and my daughter came into the room, and my son told me that Mark
2 had whipped him with a clothes hanger. And I asked him why did
3 he whip him, and he said it was because they didn't eat all of
4 their food.
5 Q. He said that he had whipped them because they didn't eat
6 all of their food?
7 A. Uh-huh.
8 Q. What did you do when they told you that?
9 A. I was upset. When Mark came home, I questioned him
10 about it. He wound up jumping on me, started beating on me,.
11 It was terrible that -- I asked him to leave, he wouldn't
12 leave. That whole night, we was fighting. So the next day, I
13 had to go to work. I sent my kids to my mom's house where they
14 could tell my mom what was going on.
15 Q. Did there come a point where you talked to a Captain
16 James Yarbrough with the Newnan Police Department?
17 A. Yes.
18 Q. Tell the members of the jury how that happened.
19 A. Well, that was the next day after he done what he done
20 to the kids. We -- I had to -- well, my mom called the police.
21 They came over to the apartment, and when they got there, Mark
22 had left. He had took someone on a high speed chase on the
23 road. He had took my keys and the car that I had bought. He
24 had left the apartment and he went to Atlanta. I think his mom
25 was living in Atlanta at the time, he went there. And when he
116
1 got there, the police came over and they asked me, you know, he
2 was going to call back and I had to go to my mom's house,
3 because that's the only way he could reach me was that number.
4 So they, I guess how you put it, they had the phone
5 where they could hear his conversation or whatever and they had
6 me to sweet talk him into coming back where I'd be able to get
7 my car back and where they could lock him up for what he did
8 with the kids.
9 So when I talked to him, I sweet talked him into coming
10 back, and when he got back, that's when I called the police and
11 they locked him up.
12 Q. Do you remember speaking with Captain Yarbrough about
13 all of those events?
14 A. Uh-huh. They took photographs. My face was swollen
15 where he had hit me in my face. They took photographs of my
16 kids where he had beat them with the clothes hanger. My son had
17 scars on his back. My daughter had scars also from where he
18 beat them.
19 MR. WALKER: Your Honor, I passed 52A through 52H to the
20 jury. May I retrieve that?
21 THE COURT: Yes.
22 BY MR. WALKER:
23 Q. Crystal, I'm going to show you these photographs, 52A
24 through 52H. 52A, that's you sitting on the couch, is that
25 right?
117
1 A. Yes, it is].
2 Q. Now, 52B, which -- that is your son, Mark?
3 A. That's my son, Mario.
4 Q. And then 52D, is that your son, Mario, also?
5 A. Yes, that's Mario.
6 Q. And lastly, the last two photographs are of you, is that
7 correct?
8 A. Uh-huh.
9 MR. WALKER: I don't have any other questions, Your
10 Honor.
11 CROSS-EXAMINATION
12 BY MR. LAUGHRUN:
13 Q. Ms. Dennis, when Mark got arrested, do you know an
14 individual named Anthony Ball?
15 A. Anthony who?
16 Q. Ball?
17 A. Yes, I do, that's my cousin.
18 Q. And you helped pay some money to Anthony Ball to help
19 Mark get out of jail, didn't you?
20 A. Anthony Ball? No, I didn't help pay any money.
21 Q. To help him get out of jail?
22 A. No.
23 Q. Now, you didn't go to court with Mark when he was
24 sentenced, did you?
25 A. Excuse me?
118
1 Q. Did you go to court with Mark when he was sentenced for
2 these charges?
3 A. No, I didn't.
4 Q. After he was sentenced, he was put on probation, wasn't
5 he?
6 A. I guess, I don't know, I didn't go with Mark to hear all
7 of that.
8 Q. And he came back and lived with you, didn't he?
9 A. He came back to my apartment on the understanding he
10 would call somebody to get his things to leave.
11 Q. Stayed there about a month before he left, didn't he?
12 A. No, he didn't.
13 Q. How long did he stay there before he left, ma'am?
14 A. It was probably about a week after that.
15 Q. Okay. Now, Mark never did alcohol or drugs, did he?
16 A. Mark drunk alcohol, but it wasn't every day, no.
17 Q. Do you recall telling our investigator on October 22nd,
18 1997 that, quote, neither you nor Mark did drugs nor drank, do
19 you recall telling Cindy Maxwell that by telephone on
20 October 22nd, 1997?
21 A. Cindy Maxwell never asked me did I do drugs, and no, I
22 don't do drugs.
23 Q. So if she said that you told her neither you nor Mark
24 did drugs or drank, she would be mistaken, is that correct?
25 MR. WALKER: Well, objection.
119
1 MR. LAUGHRUN: Cross-examination, Your Honor.
2 THE COURT: Overruled.
3 BY MR. LAUGHRUN:
4 Q. Did you tell her that or do you not recall?
5 A. I told her neither one of us did drugs, that's what I
6 told her.
7 Q. Did she ask you if you drank and you told her you didn't
8 drink?
9 A. That's right.
10 Q. And she asked you if Mark drank and you said Mark didn't
11 drink?
12 A. That's correct.
13 Q. Now, how long did you and Mark live together before the
14 relationship started going bad?
15 A. It was probably three to six months.
16 Q. Very first three to six months, I think you described
17 him as the perfect boyfriend, is that right?
18 A. True.
19 Q. During that period of time?
20 A. Uh-huh.
21 Q. And something happened, right?
22 A. Excuse me?
23 Q. Something changed, didn't it?
24 A. Yeah.
25 Q. Did you think Mark was very immature?
120
1 A. I don't think Mark was -- he wasn't immature, he was
2 just very possessive to controlling.
3 Q. Very childish in that regard?
4 A. No, he didn't act childish, he didn't act childish.
5 Q. Very possessive of you?
6 A. Yeah, very possessive of me.
7 Q. Worried about you cheating on him, running around with
8 other people, is that right?
9 A. No, he wasn't worrying about me cheating on him.
10 Q. He accused you of that, didn't he?
11 A. He accused me of that, yes.
12 Q. And was very jealous of you?
13 A. Yes, very jealous.
14 Q. And worried if you were out, he didn't know where you
15 were, he thought you were cheating on him, didn't he, I mean,
16 you weren't, but he thought that, didn't he?
17 A. I don't know what he was thinking, because if I left the
18 house and he called home, he would get off work coming looking
19 for me, but he knew where I was.
20 Q. He accused you of cheating on him, didn't he?
21 A. Yes, he did.
22 Q. Over and over and over?
23 A. No, not over and over and over, he didn't.
24 Q. Many times he accused you of that, didn't he?
25 A. Yes, he did.
121
1 Q. So much so that he would spy on you, didn't he?
2 A. No, I never known of him spying on me, no.
3 Q. You didn't tell an investigator that he would get off
4 work and go home to spy on you at your home and at your job?
5 A. I didn't say he was spying on me, I said he would come
6 looking for me.
7 Q. And he also made sure that you wouldn't leave the house
8 when he was at work, isn't that correct?
9 A. He took the door keys in case if I left, he knew I would
10 lock the door so no one else would come in the apartment. And I
11 had no way else of getting in the house.
12 Q. Now, you know about Anthony Britt?
13 A. Yes, Anthony Britt is my brother.
14 Q. And Anthony is deceased, is he not?
15 A. Yes, he is.
16 Q. About two months ago, he was shot and killed, is that
17 right?
18 A. Uh-huh.
19 Q. In an incident, he got in a fight with some other
20 people, is that correct?
21 A. Well, I really don't know too much what went down with
22 that.
23 Q. And when you first met Anthony Britt, Mark was still
24 seeing Tasha, is that right?
25 A. Correct.
122
1 Q. And Anthony wanted to date Tasha, is that right?
2 A. From what my understanding was, yes.
3 Q. And Anthony introduced you to Mark, is that right?
4 A. Correct.
5 Q. And at one time, Anthony and Mark were best friends,
6 weren't they?
7 A. Yes, they were.
8 Q. And Anthony is your half-brother, is that right?
9 A. Uh-huh.
10 Q. Do you know who Kawana Dozier is?
11 A. Who?
12 Q. Kawana Dozier, who Mark used to work with?
13 A. Yes, that was his, I guess his manager.
14 Q. And that was the manager of where he worked down in
15 Newnan, is that right?
16 A. Uh-huh.
17 Q. Where did he work down in Newnan, Crystal?
18 A. Arby's.
19 Q. How long did he work there?
20 A. I don't know. He was working there when I met him, but
21 I don't know how long he'd been there.
22 Q. And was Kawana working there with him at Arby's?
23 A. I guess so, uh-huh.
24 Q. Did you ever know him to work at Blockbuster in Newnan?
25 A. Uh-huh.
123
1 Q. Video store?
2 A. Uh-huh.
3 Q. Crystal, did -- you found out that Mark was seeing
4 Kawana Dozier, is that right?
5 A. Well, Mark had told me -- I didn't know if they was
6 fooling around. All I know is I come home to get ready to do
7 laundry, and one of the clothes basket was gone and his clothes
8 was not there. And I asked him about that, and he told me that
9 she washed his clothes.
10 Q. And he wanted to end the relationship with you to see
11 Kawana Dozier, is that right?
12 A. No, he never said that to me.
13 Q. Never said that to you?
14 A. Never.
15 MR. LAUGHRUN: Thank you, Judge Potter.
16 THE COURT: Redirect?
17 MR. WALKER: May I have just a moment, Your Honor?
18 (Pause.)
19 MR. WALKER: I don't have any other questions.
20 THE COURT: Thank you, come down. Call your next
21 witness.
22 MR. WALKER: Your Honor, the government calls Lieutenant
23 Rodney Riggs.
24 RODNEY FREEMAN RIGGS,
25 being first duly sworn, was examined and testified as follows:
124
1 DIRECT EXAMINATION
2 BY MR. WALKER:
3 Q. Sir, would you state your full name and tell us what you
4 do for a living?
5 A. Rodney Freeman Riggs, I'm a detective with the Newnan,
6 Georgia Police Department.
7 Q. And I believe you are a lieutenant with the police
8 department there, is that right?
9 A. Yes, sir, that's correct.
10 Q. How long have you been a police officer?
11 A. 23 years.
12 Q. Back in May of 1992, were you at that time employed as a
13 sergeant with the Newnan Police Department?
14 A. Yes, sir, I was.
15 Q. Pursuant to your duties at that time, did you have an
16 occasion to investigate various alleged crimes there in Newnan,
17 Georgia?
18 A. Yes, sir, I did.
19 Q. Did you on or about May 7th of 1992 have an occasion to
20 become involved in the investigation of the defendant in this
21 case, Aquilia Marcivicci Barnette?
22 A. Yes, sir, I did.
23 Q. What was the nature of that investigation, if you could
24 tell the jury?
25 A. On May 2nd, 1992, the Newnan Police Department was
125
1 called to a shooting incident at a railroad crossing on August
2 Drive. The victim, Anthony Britt, had indicated that he had
3 been in an argument with Mark Barnette and that Barnette had
4 shot him and that Barnette had then run off. About five days
5 later, I arrested Mark Barnette at his apartment in Chestnut
6 Lane Apartments and I interviewed him about that incident.
7 Q. Okay. When you arrested him, what exactly did you
8 arrest him for?
9 A. Charged him with misdemeanors of battery, reckless
10 conduct, pointing a gun at another, and discharging a firearm in
11 the city limits.
12 Q. Am he was ultimately convicted of those, is that
13 correct?
14 A. Yes, sir, he was.
15 Q. Where was Mr. Britt shot?
16 A. The bullet penetrated his arm and then it went into his
17 chest.
18 Q. When you talked to the defendant, did you tell him about
19 his Constitutional rights according to Miranda?
20 A. Yes, sir, I did.
21 Q. Told him he had a right to remain silent, he had a right
22 to a lawyer, and he didn't have to talk to you, is that right?
23 A. Yes, sir, I did.
24 MR. WALKER: May I approach the witness, Your Honor?
25 THE COURT: Yes.
126
1 BY MR. WALKER:
2 Q. Lieutenant, I'm going to show you 54A and 54B. First I
3 want to show you 54A and ask you, it consists of two pages, is
4 that the incident record that you completed concerning the
5 incident of the defendant shooting Anthony Britt?
6 A. Yes, sir, it is.
7 MR. WALKER: Your Honor, I would move admission of that,
8 Government's Exhibit 54A.
9 THE COURT: It will be admitted.
10 BY MR. WALKER:
11 Q. And also I want to show you 54B. It consists of two
12 pages, the first page being a waiver of counsel, the second page
13 is titled voluntary statement under arrest. Is that the waiver
14 of counsel form that you completed with the defendant and the
15 statement that you took from him?
16 A. Yes, sir, it is.
17 Q. Indicate to the members of the jury how you explained
18 his Miranda rights to him and what his response to each of those
19 rights were at the time you interviewed him.
20 A. Our department has a waiver of counsel form which has
21 the rights of the defendant at the time of being questioned by
22 the police, and I filled out one of those forms for
23 Mr. Barnette. The form reads, I, Mark Barnette, have been
24 informed by the undersigned law enforcement officers prior to
25 being questioned by them that I may remain silent and do not
127
1 have to make any statement at all, that any statement which I
2 might make can and will be used against me in court, that I have
3 a right to consult with an attorney before making any statement
4 and to have such attorney present with me while I'm making a
5 statement, that if I do not have enough money to employ an
6 attorney, I have a right to have one appointed by the Court free
7 of charge to represent me, to consult with him before making any
8 statement, and to have him present with me while I'm making the
9 statement, that if I request an attorney, no questions will be
10 asked me until an attorney is present to represent me, that I
11 can decide at any time to exercise these rights and not answer
12 any questions or make any statements.
13 Then there is a paragraph which reads, after having my
14 rights explained to me, I freely and voluntary waive my right to
15 an attorney, I am willing to make a statement to the officers, I
16 can read and write the English language and fully understand my
17 rights to an attorney, I have read this waiver of counsel and
18 fully understand it, no threats or promises have been made to me
19 to induce me to sign this waiver of counsel and to make a
20 statement to the officers. Then it is dated, the time is placed
21 there, and I asked the defendant to sign it if the defendant
22 understands those questions.
23 Q. And did he indicate to you that he understood those
24 rights?
25 A. Yes, sir, he did.
128
1 Q. Did he appear to be an intelligent person to you?
2 A. Yes, he did.
3 Q. Understood what you were saying?
4 A. Yes, sir.
5 Q. And did he agree to talk freely to you?
6 A. He did, sir.
7 Q. And now I'm going to turn your attention to the second
8 page of 54B.
9 MR. WALKER: And Your Honor, I would, I may not have
10 moved it, admission of 54B, I would do so at this time.
11 THE COURT: I think it has been. Let it be admitted.
12 BY MR. WALKER:
13 Q. Referring your attention to 54B, if you would, indicate
14 to the members of the jury what the defendant told you when he
15 was talking to you.
16 A. This is a voluntary statement form. Barnette and I had
17 discussed the incident, and after we discussed it, then I
18 reduced it to writing, that is, I typed the form as he was
19 present with me while I did this, and we discussed it as I typed
20 it. And the statement which he told me was this:
21 My fiancee, Natasha Heard, and I have been having some
22 trouble lately. Anthony Britt has been talking to her and that
23 has been making things worse. I have also been talking to
24 Anthony's sister, Crystal Dennis, and Anthony has been telling
25 her things about me. On Friday, May 1st after I got off work, I
129
1 went by Crystal's apartment on Hannah Street. While I was
2 there, Anthony came over. Several times that evening, Anthony
3 asked me to come outside with him. I never did because I had
4 nothing to say to him.
5 I finally left Crystal's apartment about 1:30 a.m. and
6 was walking home. When I got on Augusta Drive near the railroad
7 tracks, Anthony came out on the street and hollered at me. I
8 turned around and saw there were several other people with him.
9 Anthony came running up to me and started arguing with me. He
10 was telling me what he was going to do to me and said that I had
11 been talking about his son. I told Anthony I didn't want any
12 trouble and I kept walking. Anthony followed me and kept on
13 talking to me about my fiancee and about what he was going to do
14 to me. He finally got in front of me and I tried going around
15 him and he pushed me. I tried going around him a second time
16 and he pushed me again.
17 I had my pistol with me, and when he pushed me the
18 second time, I pulled my pistol and shot once and hit Anthony.
19 I shot two more times, but I didn't hit anybody. I was afraid
20 at that time because of the crowd that was with Anthony. When I
21 shot, the crowd took off running and I ran toward my apartment.
22 When I got near my apartment, I threw the gun into some woods.
23 The gun was a .22 caliber revolver.
24 Q. And then he signed the statement Mark Barnette?
25 A. Yes, sir, he did.
130
1 Q. And you also signed it as a witness and dated it at
2 11:07 a.m. on the 7th day of May of 1992, is that right?
3 A. That's correct.
4 Q. In the statement there three lines from the bottom, he
5 told you he was afraid?
6 A. Yes, sir.
7 Q. And you specifically wanted to know about the weapon
8 that he had used to shoot Anthony Britt and the whereabouts of
9 that weapon, is that right?
10 A. Yes, sir.
11 Q. And what was the story that he told you about that?
12 A. He said he threw it into the woods.
13 Q. Did you ever determine the caliber of weapon that he
14 used to shoot Anthony Britt?
15 A. It was .22 caliber.
16 Q. How did you figure that?
17 A. The bullet was retrieved from the victim Britt and we
18 could look at it and tell it was a .22 calendar.
19 Q. And Mr. Britt wasn't charged in this incident, is that
20 right?
21 A. Yes, he was charged with a disorderly conduct and
22 fighting.
23 Q. And he has since deceased recently, is that right?
24 A. That is correct.
25 MR. WALKER: I don't have any other questions, Your
131
1 Honor.
2 THE COURT: Defense?
3 CROSS-EXAMINATION
4 BY MR. LAUGHRUN:
5 Q. Lieutenant Riggs, tell us about what led to Mr. Britt's
6 demise if you would.
7 MR. WALKER: Objection.
8 MR. LAUGHRUN: Judge, they opened the door.
9 THE COURT: Overruled.
10 BY MR. LAUGHRUN:
11 Q. Tell us what led to his demise, Lieutenant Riggs.
12 A. He was in an altercation with another man concerning a
13 woman. The man was trying to leave an apartment complex and
14 Mr. Britt approached him, an argument ensured, gunfire took
15 place and Britt was killed.
16 Q. Now, when this incident took place, Mr. Barnette was
17 charged with, and educate me if you would, municipal court
18 violations?
19 A. That's correct.
20 Q. Misdemeanor charges?
21 A. Yes, sir.
22 Q. No felony charges were brought, is that right?
23 A. That's correct.
24 Q. In fact, you charged him with four separate violations,
25 is that correct, sir?
132
1 A. Yes, sir.
2 Q. And he was in jail the whole time until he came to
3 court, is that right?
4 A. Yes, sir, he was.
5 Q. And he came into court and pled guilty to a couple of
6 them, is that right?
7 A. Yes, sir.
8 Q. And got credit for time served, is that right?
9 A. Yes, sir.
10 Q. Which means he didn't have to do anything but go out of
11 jail, walk out of the jail, is that right?
12 A. He spent some time in jail.
13 Q. 23 days, is that a fair statement?
14 A. That's about right, yes, sir.
15 Q. Now, didn't have a lawyer with him, did he?
16 A. No, he did not.
17 Q. Came in on his own and said, I plead guilty, and the
18 judge gave him credit for time served, is that correct?
19 A. That's correct.
20 Q. Lieutenant, when you arrested him, I believe you
21 arrested him at a residence, is that right?
22 A. Yes, sir.
23 Q. Didn't give you any trouble?
24 A. That's correct, he did not.
25 Q. Cooperated with you?
133
1 A. Yes, sir.
2 Q. Told you it was a .22 caliber pistol?
3 A. He did.
4 Q. And that pistol was never found, was it?
5 A. No, sir, it was not.
6 Q. But the projective that was removed from Mr. Britt
7 matched up to a .22, is that correct?
8 A. Yes, sir, it did.
9 Q. Consistent with what the defendant told you?
10 A. That's correct.
11 Q. Now, I want to show you some documents marked
12 Defendant's Exhibits 48A through C inclusive.
13 MR. LAUGHRUN: If I could approach the witness, Your
14 Honor.
15 THE COURT: Yes, sir.
16 BY MR. LAUGHRUN:
17 Q. I'm going to show you what I have marked as Defendant's
18 Exhibit 48A. Does that appear to be the warrant that you
19 drafted for discharging a firearm in the City of Newnan,
20 Georgia?
21 A. Yes, sir, it does.
22 Q. And it appears to be certified under seal from the clerk
23 down there?
24 A. Yes, sir.
25 Q. Lieutenant, it's issued, I believe, May 6th '92, is that
134
1 right?
2 A. That's correct.
3 Q. And there is a judgment on there signed by, I believe a
4 recorders court judge, is that correct?
5 A. Yes, sir, it is.
6 Q. It says on there time served, is that right?
7 A. It does.
8 Q. Show you what is marked as Defendant's Exhibit B, and
9 ask you if that's the warrant you drew for battery, the same
10 incident?
11 A. Yes, sir, it is.
12 Q. And the judgment on there also signed by recorders court
13 judge, it says time served, is that right?
14 A. That's correct.
15 Q. Defendant's Exhibit 48C appears to be a warrant,
16 pointing a pistol at Anthony Britt, is that correct?
17 A. That's correct.
18 Q. And the same judgment, time served, is that right?
19 A. Yes, sir.
20 Q. Signed by recorders court judge?
21 A. Yes, it is.
22 Q. And May -- another warrant, Defendant's Exhibit 48D,
23 does that appear to be a reckless conduct warrant drafted by
24 you?
25 A. Yes, sir, it is.
135
1 Q. And that was dismissed, I believe, 6-1-92, is that
2 correct?
3 A. That's correct.
4 Q. With a signature by recorders court judge on there also?
5 A. Yes, sir.
6 Q. And on there, if I could, Lieutenant, on the back of
7 Defendant's Exhibit 48A through C, does it have a waiver where
8 the defendant pleads guilty without a lawyer on all of those
9 three exhibits?
10 A. Yes, sir, a waiver, and it's initialed by him, and it
11 indicates that he is pleading guilty.
12 Q. And didn't have a lawyer with him, I think you told us,
13 is that right?
14 A. That's correct.
15 Q. And it was also signed by the recorders court judge, is
16 that correct?
17 A. That's correct.
18 Q. Thank you, Lieutenant.
19 Did you ever, Lieutenant, answer any domestic calls at
20 the Crystal Dennis residence?
21 A. No, sir.
22 Q. Are you familiar with any of those in the Newnan Police
23 Department other than the ones involving her son?
24 A. No, sir, I'm not.
25 MR. LAUGHRUN: Thank you, Judge Potter.
136
1 THE COURT: Redirect?
2 REDIRECT EXAMINATION
3 BY MR. WALKER:
4 Q. One further question in response to one of
5 Mr. Laughrun's questions. The defendant told you he already had
6 the weapon with him, is that correct?
7 A. Yes, sir, he indicated that it was in his pocket.
8 MR. WALKER: That's the only other question I had, Your
9 Honor.
10 THE COURT: Thank you, sir, come down.
11 Members of the jury, we will take the morning recess at
12 this time. I have a matter to take up with the attorneys which
13 might take a little longer than the 15 minutes you usually have,
14 but hopefully not more than just a few minutes. Do not discuss
15 the case among yourselves while you are out, please.
16 (The jury left the courtroom.)
17 THE COURT: All right, Mr. Williams, you have a question
18 you were going to ask Ms. Heard, is that right?
19 MR. WILLIAMS: Can we bring her back, Your Honor, so we
20 can put this on the record?
21 THE COURT: All right.
22 MR. LAUGHRUN: Judge, while she's on her way into the
23 courtroom, when the bench conference was held, the government
24 objected and asked to approach the Court. Your Honor sustained
25 the objection to the question. We asked to put that on the
137
1 record, and I believe that was all that was discussed at the
2 bench conference.
3 THE COURT: Thank you, Mr. Laughrun.
4 Just take a seat back up here again, please, Ms. Heard.
5 Okay, Mr. Williams.
6 MR. WILLIAMS: Judge, just for the record, can we let
7 the record know that the jury is not present at this time and
8 that this question is being asked --
9 THE COURT: I'm assuming he does that all the time.
10 Otherwise, we are in trouble, because I don't ever tell him.
11 Go ahead.
12 BY MR. WILLIAMS:
13 Q. Natasha, would you want your children to see and visit
14 with their father if he were in prison sentenced to life without
15 the possibility of release?
16 A. That would be their decision.
17 Q. Do you think -- would there be some benefit in your
18 opinion to that, some benefit to the children?
19 A. Yes.
20 Q. What would be the benefit to the children if they did
21 that in your opinion as a mother?
22 A. Well, there is going to be questions like, why you ain't
23 been there for us, things that they are going to need an answer
24 to and I can't answer it for them, no matter what I tell them.
25 There are some things that they are going to need to hear that's
138
1 going to come from his mouth, and that's --
2 Q. Let me also ask you about how Angelica is doing right
3 now, is she, does she know that her father is in jail?
4 A. Yes, but she doesn't like just go on about it.
5 Q. Have you told her about -- have you told her what
6 happened?
7 A. No.
8 Q. Have you told her that he is in prison?
9 A. No.
10 Q. How is little Mark, I think you referred to him as
11 little Mark?
12 A. Yes.
13 Q. How is he doing, does he have any difficulties or
14 problems?
15 A. He's just AD/HD.
16 Q. Has he been diagnosed AD/HD?
17 A. Yes, he has.
18 Q. Which is attention deficit --
19 A. Disorder.
20 Q. -- hyperactivity disorder?
21 A. Yes, sir.
22 Q. While you are here --
23 MR. WILLIAMS: Let me ask these last couple of
24 questions, Your Honor.
25 BY MR. WILLIAMS:
139
1 Q. Would you say that Mark was possessive?
2 A. I don't remember.
3 Q. Would you say that he, when he would act and get mad,
4 would you say that he was childish and immature?
5 A. I don't remember.
6 MR. WILLIAMS: That's all.
7 MR. CONRAD: Your Honor, I have got no questions of this
8 witness. But I would like to put it on the record that at the
9 bench conference, the single question at issue was whether she
10 would want her children to visit Mr. Barnette in prison if he
11 got a sentence of life without release. That was the single
12 question that was in dispute. I just want the record to reflect
13 that bench conference.
14 MR. LAUGHRUN: Judge, you also sustained an objection
15 about how the children were doing also. Mr. Williams asked how
16 were the children doing. I think the record is entitled to have
17 that answer for the record, if Your Honor please.
18 THE COURT: Thank you, sir. Thank you, ma'am, you may
19 step down. We will take a recess at this time, return at 11:10,
20 please.
21 (Brief recess.)
22 ^ THE COURT: Mr. Conrad, have you worked out your
23 witness problem?
24 MR. CONRAD: We are fine now, Judge.
25 THE COURT: Pardon?
140
1 MR. CONRAD: We are okay.
2 THE COURT: All right, call the jury.
3 (The jury returned to the courtroom.)
4 THE COURT: Government call its next witness.
5 MR. CONRAD: Your Honor, at this time we would move
6 admission of Government's Exhibit 53D, which is a judgment of
7 Superior Court of Coweta County against Aquilia Marcivicci
8 Barnette, two counts of felonious cruelty to children.
9 THE COURT: Let it be admitted.
10 MR. CONRAD: Permission to pass it to the jury.
11 THE COURT: Oh, yes, I'm sorry. I thought you were
12 calling your next witness.
13 MR. CONRAD: The United States would call Alesha
14 Chambers.
15 ALESHA CHAMBERS HOUSTON,
16 being first duly sworn, was examined and testified as follows:
17 DIRECT EXAMINATION
18 BY MR. CONRAD:
19 Q. Would you state your name for the jury and spell your
20 name for the court reporter?
21 A. Alesha Chambers Houston, A-L-E-S-H-A, Chambers Houston.
22 Q. Ms. Houston, how old are you?
23 A. 20.
24 Q. What is your employment?
25 A. I do security for channel 9.
141
1 Q. And in April of 1993, how old were you?
2 A. 15.
3 Q. 15. And were you in school at that time?
4 A. Uh-huh.
5 Q. And where did you attend school?
6 A. Myers Park.
7 Q. The school year 1992-93, you were at Myers Park High
8 School?
9 A. Yes.
10 Q. And what grade were you in?
11 A. 10th grade.
12 Q. Did you have an occasion back then to meet the defendant
13 in this case, Aquilia Marcivicci Barnette?
14 A. Yes.
15 Q. And do you see him in the courtroom today?
16 A. Yes.
17 Q. Would you point him out to the jury and describe what he
18 is wearing?
19 A. He has on a dark blazer and a multicolored tie.
20 Q. Seated at the table to my right?
21 A. Yes.
22 Q. Between the two lawyers?
23 A. Yes.
24 Q. How did you meet him back when you were a 10th grader at
25 Myers Park High School?
142
1 A. I was over to my aunt's house and I was sitting on her
2 porch with my cousin, and he and a friend of his walked by.
3 Q. And what were you doing at your aunt's house that day?
4 A. My grandmother had just passed and I was just over there
5 just to visit.
6 Q. And how did it come about that you met Barnette?
7 A. When he saw my cousin and I sitting on the porch, he
8 came over. He approached, and we talked and exchanged
9 numbers -- well, I gave him the number where I was and he called
10 later on that evening.
11 Q. From that point forward, did you establish a
12 relationship with him?
13 A. Yes.
14 Q. Describe that relationship back then when it first
15 started.
16 A. In the beginning, it was a pretty good relationship.
17 Things started taking a turn about, I would say about June -- I
18 mean, there were hints that I should have taken before June, but
19 I just didn't.
20 Q. So you met sometime in April, is that correct?
21 A. Yeah.
22 Q. Between April and June, what was the relationship like?
23 A. Like I said, it was pretty good. He didn't get very
24 violent, but like I said, there was things he did I should have
25 picked up on.
143
1 Q. Sometime after you met him at your aunt's house, did you
2 start dating him?
3 A. Yeah.
4 Q. Sometime after that, did you start living with him?
5 A. That was in late June, early July, I really can't
6 remember exactly.
7 Q. Now, tell the jury about what the relationship was like
8 beginning in June.
9 A. He was very jealous. I couldn't wear certain things.
10 It was summertime and I dressed, you know, accordingly.
11 I -- like I said, I just couldn't wear certain things. I
12 couldn't go anywhere unless he knew where I was going, when I
13 would be back. He was very controlling. He wanted to have
14 complete control over everything. And, you know, it's fine as
15 long as you're doing what he wants you to do, but as soon as you
16 try to do your own thing, that's when the violence comes in.
17 Q. And when you say violence, what do you mean?
18 A. He did so much.
19 MR. LAUGHRUN: Objection, move to strike.
20 THE COURT: Overruled, motion denied.
21 BY MR. CONRAD:
22 Q. When you say he did so much, are there specific
23 incidents of violence that stand out in your memory?
24 A. Yeah. The first real big incident happened while we
25 were at -- we were living together, and I forget how it started,
144
1 I'm not exactly sure, but he -- what happened -- we were in the
2 bathroom. And I really forget how it happened, but he strangled
3 me from behind. He was standing behind me, and he took me by my
4 neck and strangled me from behind. And somehow we scuffled and
5 we were in the tub, he threw me in the tub. There was no water
6 in the tub, but he was still choking me by the neck. And I made
7 my way out of the bathtub, and we went and he slammed me on the
8 bed and the scuffle continued from there. That was the first
9 real, real incident.
10 Q. Did he ever strike you in the face?
11 A. Oh, yeah, several times, several times. I remember when
12 I was at my cousin's house, I was coming back from a little
13 strip mall that's close to her house, and what I had on he
14 didn't particularly care for. And he tried to -- my cousin and
15 I were walking here and he came like very close to us with his
16 car and tried to run us over, I guess. And he told me to get in
17 the car, you know, get in the fucking car. And when I got in
18 the car, he left my cousin there and we were going back to his
19 house, and he was punching me in the side of my face repeatedly
20 with his fist. And --
21 Q. While he was driving?
22 A. While he was driving, yeah.
23 MR. LAUGHRUN: We'd like to be heard at the bench, if
24 Your Honor please.
25 THE COURT: I'm sorry, what?
145
1 MR. LAUGHRUN: Could we be heard at the bench?
2 THE COURT: Oh, yeah.
3 (Bench conference not recorded.)
4 THE COURT: If there was an objection, objection is
5 overruled. Do you want a continuing objection to this,
6 Mr. Laughrun?
7 MR. LAUGHRUN: Yes, sir.
8 MR. CONRAD: Mr. Huseby, can you read back the last
9 question?
10 THE WITNESS: You asked me had he --
11 THE COURT REPORTER: While he was driving? That's the
12 question.
13 MR. CONRAD: All right.
14 BY MR. CONRAD:
15 Q. Ms. Chambers, you were talking about an incident in
16 which you were struck in the face repeatedly while the defendant
17 was driving the vehicle?
18 A. Uh-huh.
19 Q. At the time you were struck in the face, was he driving
20 the car?
21 A. Yes.
22 Q. And where were you?
23 A. I was in the passenger seat.
24 Q. And what was the reason, did he say anything to you
25 about why he was hitting you on that day?
146
1 A. He asked me, he said, why the fuck you got that on. And
2 I was like, you know, what are you talking about, it was just an
3 outfit. He said, you don't wear that shit unless you are with
4 me. And then he was like, where you think you're coming from,
5 you know, because I had come up from the mall, you know. And he
6 said a lot of things, you know, so basically he was upset
7 because I had on what I had on and I was coming from the mall.
8 Q. Do you recall an incident when you had to miss a work
9 meeting because of an incident with the defendant?
10 A. Yes.
11 Q. Tell the jury about that.
12 A. That was the same incident. He knew that I had to go to
13 a meeting later on that afternoon. And the whole time he was
14 driving me back to my house, I was telling him I got to go to
15 this meeting, it's very important that I be there. And I think
16 he said, I don't care if you have to go to a meeting or not, you
17 know, you are going with me, and we were going to his house.
18 And as we were going down the highway, he threw my purse out of
19 the window, because I was looking for something in my purse --
20 oh, to check my face. I was looking for a compact mirror, and
21 he threw my purse out of the window. And when we got up into
22 his driveway, we just sat in the car for a while, just talking.
23 Q. Did he ever in any of these incidents cut your face at
24 all?
25 A. Mostly all of them, mostly all of them he would hit me
147
1 in my face.
2 Q. Did it ever draw blood?
3 A. Yeah, he busted my lip, he cracked my front tooth.
4 Q. Did he ever pull you by the hair?
5 A. Yeah, he pulled a big clump of my hair out in the back.
6 It was coming out by the roots, you could tell, because of the
7 little ends. He did that quite often.
8 Q. How long did this abuse last?
9 A. Up until the last time I saw him.
10 Q. Now, turning your attention to the fall of 1993, did
11 there come a time when your relationship broke up?
12 A. Yes. Mark isn't the kind of person that you just say,
13 it's over. It's not over until he says it's over.
14 MR. LAUGHRUN: Objection to the narrative, if Your Honor
15 please.
16 THE COURT: I'm sorry?
17 MR. LAUGHRUN: Objection to the narrative and
18 editorialization, if Your Honor please.
19 THE COURT: Sustain to that.
20 BY MR. CONRAD:
21 Q. Did there come a time when you tried to get out of the
22 relationship?
23 A. Several times, uh-huh.
24 Q. How did you do that?
25 A. The first time, you know, I told him that I just
148
1 couldn't take the abuse, I couldn't take the domination, you
2 know, I had to -- I wanted to leave, and, huh-uh, he wasn't
3 going to let that happen.
4 Q. Did there come a time when he sent you some roses?
5 A. Uh-huh, he sent me a dozen and a half roses. We were
6 broken up at that time, too. And in the card, he said, thanks
7 for the chance of a lifetime. He thought at that time that we
8 were getting back together, but you have to kind of play his
9 little game. You have to try to appease him so that he will
10 leave you alone.
11 Q. Let me turn your attention to November 8th of 1993. Did
12 there come a time when you were staying at your uncle's
13 apartment on Watson Drive?
14 A. Uh-huh, yes.
15 Q. Where is Watson Drive in Charlotte?
16 A. It's off of West Boulevard.
17 Q. How far is it from -- do you know where the defendant's
18 mother lives?
19 A. Yes.
20 Q. How far is Watson Drive and West Boulevard from that
21 residence?
22 A. It might be about two and a half miles.
23 Q. Straight down West Boulevard?
24 A. Straight down West Boulevard, yes.
25 Q. Did there come a time when you were staying at your
149
1 uncle's apartment and something happened on November 8th?
2 A. Yes.
3 Q. What were you doing that day?
4 A. Okay, I had just come in from work and I had taken a
5 shower.
6 Q. Where did you work?
7 A. At Bojangles' on Woodlawn.
8 Q. And what shift?
9 A. I was working second shift then. And I --
10 Q. What were the hours of the second shift?
11 A. I would go in at 2:00 and we would close. I might get
12 home at like 1:00 o'clock.
13 Q. And what did you do at Bojangles'?
14 A. Then I was a, I guess a service specialist. I would
15 make sure that everybody was doing their job and making the
16 customers happy and things like that.
17 Q. And when you got back to your uncle's apartment on that
18 evening, what, if anything, happened?
19 A. Like I said, I had taken a shower and I had on -- I
20 changed into a T shirt and some shorts and some socks. It was
21 wintertime, but I was in the house. And my mom had washed some
22 clothes earlier, so I was folding the clothes and putting them
23 away. And --
24 Q. Had anything happened between you and Mr. Barnette
25 earlier that day?
150
1 A. Yeah, I forgot -- well, this wasn't earlier that day,
2 but it happened around that time, when he -- let me see, I was
3 asleep on the couch. And the only thing I remember was he came
4 into the apartment, I'm not sure how he got in because I was
5 asleep, and I had my hair tied up to sleep in and he yanked it
6 off my head. I can't remember exactly what he said or like I
7 said, how he got in, but that happened. And then --
8 Q. Did you have any telephone conversation with him the day
9 that you are talking about where you got off of work and came
10 back to your uncle's apartment?
11 A. Uh-huh.
12 Q. What did that telephone conversation concern?
13 A. He wanted to see me, and I didn't want to see him. I
14 didn't feel comfortable being around him anymore. And then he
15 said, I'm coming over there. I didn't really think he would
16 come, because he didn't have a car at that time. And it's two
17 and a half miles, but it's a long walk. So I just disregarded
18 what he said and I went back to doing what I was doing.
19 Q. And what were you doing?
20 A. Folding clothes.
21 Q. And what happened next?
22 A. I was on the phone with one of my uncle's girlfriends,
23 and he was knocking on the door and I was telling him repeatedly
24 to go away. And he was like, well, just let me in, I want to
25 talk, you know, just let me in. And for a while, it was quiet.
151
1 I didn't hear him anymore, so I thought maybe he went away.
2 Then all of a sudden I heard a loud boom like noise and that's
3 when he entered the premises. And so I told her, I said, let me
4 call you back, I'm going to call the police. And then as soon
5 as I clicked the little button to hang up to dial 911, he was in
6 and smashed the cord out of the wall. And then I'd gotten a
7 knife when I first heard him knocking on the door, I had a knife
8 in my hand, and when he came towards me I was going to stab him
9 with the knife. But somehow he wrestled it out of my hand, and
10 taking it out of my hand, he cut several fingers on my left
11 hand.
12 Q. And what happened next?
13 A. We wrestled onto the couch, and I was screaming so loud
14 and he stuffed a nearby towel in my mouth to make me quiet. And
15 at some point in time, he took the towel out of my mouth and we
16 went to the balcony. And --
17 Q. How did you go to the balcony?
18 A. Oh, I went over his shoulder. He threw me over his
19 shoulder and took me to the balcony. And he said, so help me,
20 God, I'm going to throw you over this fucking balcony. And
21 thank God, a car rolled by below and that's why he didn't throw
22 me over the balcony. And after that, still in my T shirt,
23 shorts and socks, still over his shoulder also, we went
24 outside. He was going to take me to a waiting vehicle he had
25 downstairs and I was grabbing everything, grabbing doors and
152
1 rails and everything because I just did not want to go. And
2 when we got to the car, he put me in the passenger side. He
3 said, if you get out of this fucking car, I am going to kill
4 you. And --
5 Q. How did he get in the car?
6 A. He got me over his shoulder, put me down, put me in the
7 car. I didn't get in willingly, and I was terrified. You know,
8 we were driving, he was going to pick up his brother from a
9 restaurant close by, and he was talking. He did a lot of
10 talking, but what he said, I don't know, I can't remember. And
11 when we pulled up into the parking lot, he told me, not in these
12 exact words, but to, you know, act like nothing is going on.
13 And I didn't, you know, because he had already done this, he was
14 going to throw me over the balcony, I didn't know what else he
15 would do, even with his brother there, it didn't matter.
16 And we went back to his house, to his mom's house or
17 whatever, and we went in. And when I first went into the
18 kitchen, his mother saw me and she said, what is she doing here,
19 and I forgot what Mark said. We went into his brother's bedroom
20 in the back and he was still talking; what he said, I don't
21 remember. And there was a knock on the front door, I heard it,
22 and he knew it was police because -- he just knew it was the
23 police. And then so he ran out of the sliding door, and he told
24 me before he left, he told me to stay where I was. But as soon
25 as he left, I also came out of the room and his mother was like,
153
1 what is she doing here, or, you know, how did she get in, like
2 she never saw me come in the first place, but she saw me. And
3 then the police, you know, they were in there and they asked me
4 did I want to make a statement then. I was like no, I was so
5 scared, I didn't know -- I was just scared, I wanted to just get
6 out of there.
7 Q. When the police first asked you anything, were you
8 inside the house?
9 A. Uh-huh.
10 Q. Who else was present inside that house?
11 A. Let me see, his mother was there in the living room, I
12 think his Aunt Sheila was there. I can't remember anybody
13 else. I'm not sure if Mario was in that room with us or not.
14 Q. So did there come a time when you left that room?
15 A. Uh-huh.
16 Q. How did that happen?
17 A. The police, because I just had on socks and had been
18 running earlier, the police, she carried me to her unit and put
19 me in it.
20 Q. How old were you at this time?
21 A. 16.
22 Q. And after the police person put you in her unit, what
23 happened after that?
24 A. I told her I just wanted to get off of the property, and
25 she drove me down a little ways up the street and took my
154
1 statement there.
2 Q. And at that time, did you tell her what had happened
3 that night?
4 A. I told her everything that happened.
5 MR. CONRAD: Your Honor, may I approach the witness?
6 THE COURT: Yes, sir.
7 BY MR. CONRAD:
8 Q. Let me approach and hand to you what has been marked for
9 identification as Government's Exhibit 55A, and ask you if you
10 recognize that exhibit?
11 A. Yes.
12 Q. And what is Government's Exhibit 55A?
13 A. This is the statement that I gave to the officer that
14 night.
15 Q. Did you sign it that night?
16 A. Yes, I did.
17 Q. And Page 2 of Government's -- Page 3 of Government's
18 Exhibit 55A, does that bear your signature?
19 A. Yes.
20 Q. Okay. After you gave a statement to the officer -- was
21 it a male or female officer that you talked to?
22 A. Female.
23 Q. After you gave a statement to her, what happened next?
24 A. We went back to my uncle's house, and they had Mark on
25 the phone already. He had called trying to talk to me. And the
155
1 police and I schemed up an idea that we would try to find out
2 his location, because, of course, he had fled the scene. And he
3 told me at first when I was on the phone with him, he was like
4 so hysterical. He was crying, he was loud, he was just so
5 hysterical. And as soon as I talked to him, he just calmed. I
6 mean, you can't go from complete hysterics to calm, but he did.
7 And --
8 MR. LAUGHRUN: Objection to the narrative, if Your Honor
9 please.
10 THE COURT: Pardon, Mr. Laughrun?
11 MR. LAUGHRUN: Object to that conclusion, if Your Honor
12 please.
13 THE COURT: All right, sustained.
14 MR. LAUGHRUN: Ask you strike it from the --
15 THE COURT: Motion will be allowed.
16 BY MR. CONRAD:
17 Q. What you need to tell the jury is describe -- don't say
18 what someone could or could not do, but describe for the jury
19 what he did.
20 A. Okay. Like I said, he was completely hysterical. He
21 was crying, he was talking through the crying so it was kind of
22 like you couldn't really understand what he was saying. And
23 then like I say, when I got on the phone, he kind of went calm.
24 Just like I'm talking to you, he was that calm. And he asked me
25 several questions, like I say, I can't remember. But then it
156
1 took a while, we did get him to tell where he was.
2 Q. Now, after that night, did there come a time when you
3 got off of the bus to go to work and another incident occurred?
4 A. Uh-huh.
5 Q. Turning your attention to November 12th, tell the jury
6 what, if anything, happened on that day.
7 A. Okay. I had come home from -- I don't remember where I
8 was coming from, but I had to come home so that I could get
9 changed and go directly to work. And as I was coming up the
10 street, I saw him, let's see, and he told me, you know, he
11 wanted to talk. And I didn't want to talk, so I was walking
12 real fast to get to the house. And he hid out in some woods,
13 and so I called the police and told her, you know, that he was
14 hiding out in the woods and I was afraid, would she come and
15 remove him. But by the time the officers got there, he was
16 already gone, they didn't see him anywhere, and so I felt kind
17 of okay to go to work. And when I got to Bojangles', when I got
18 off the bus, there he was in the parking lot.
19 Q. And where is the Bojangles' that you worked at at this
20 time?
21 A. It was on Woodlawn, but I got off the bus on South
22 Boulevard. When he was there, I asked him, you know, what was
23 he doing there, and he said he wanted to talk to me about some
24 things, because we had broken up and he wanted to know why had
25 we broken up. And he pulled out this big, long like, it was a
157
1 blade, it was real big, and --
2 Q. Pulled out a big, long what?
3 A. Knife.
4 Q. Knife?
5 A. Uh-huh. And he put it in my back, because we were
6 standing still and he was like edging me along with the knife to
7 walk towards where I was supposed to be going. And he was still
8 talking, and we got to the back of Bojangles' and he asked me
9 why didn't I want to be with him. And I was like, isn't it
10 obvious why I don't want to be with you? You don't treat nobody
11 like this and expect for them to be with you. And then first he
12 said he was going to kill himself and then he was going to kill
13 me, you know. And then I don't know how, but people from the
14 restaurant beside mine, T.K. Tripps, one of the employees came
15 out and they saw what was going on. And an employee out of
16 Bojangles' came out, and he rushed Mark and he told him, he
17 said, if you don't tell him to back off, I'm going to kill him
18 and you, too.
19 Q. Now, at that point, did he still have the knife in your
20 back?
21 A. In my back, uh-huh, uh-huh.
22 Q. Did there come a time when he took the knife and put it
23 somewhere else?
24 A. To my throat. That's when the guy from Bojangles' came
25 up. He put it to my throat.
158
1 Q. So he had one hand on a knife to your throat. Where was
2 his other hand?
3 A. He was holding me like this, close to him.
4 Q. And where was the knife?
5 A. At my throat.
6 Q. And what was he saying to you when he was holding you
7 and he had a knife to your throat?
8 A. Then he was telling me to tell Dave, the guy that came
9 out of Bojangles', to back off. That's what he was saying at
10 that time, when he had the knife to my throat. I did tell Dave
11 to back off, but he didn't. I mean, I wasn't telling him
12 because I wanted him to, but I didn't want him to hurt me. And
13 another employee came out and he was the one that actually
14 rushed Mark, and when he rushed him, a guy from T.K. Tripps
15 grabbed me. And I'm not sure who got the blade, but the blade
16 fell to the ground and they beat him with a stick.
17 Q. Did the police come after that?
18 A. Uh-huh, they came and they -- at the time when the
19 police arrived, the guy was still beating Mark with the stick
20 and they were kind of just standing to the side. They didn't
21 actually stop the man from beating Mark with the stick. When
22 the man stopped, that's when the police apprehended Mark.
23 Q. And did a police officer take a statement from you on
24 that date?
25 A. Yeah, yeah.
159
1 MR. CONRAD: May I approach, Your Honor?
2 THE COURT: Yes.
3 BY MR. CONRAD:
4 Q. Alesha, let me approach and hand you what has been
5 marked for identification as Government's Exhibit 55B, and ask
6 you if you recognize that exhibit?
7 A. Yes.
8 Q. And what is that exhibit?
9 A. This is the statement that I gave on that day about what
10 happened.
11 Q. And did you sign that statement as well?
12 A. Yes.
13 Q. Do you know whether or not Mr. Barnette was arrested on
14 that occasion?
15 A. Uh-huh, he was arrested at the scene, uh-huh.
16 Q. And this was four days after he had broken into your
17 apartment and had been arrested on that day?
18 A. I can't remember exactly how long.
19 Q. Shortly thereafter?
20 A. Yeah.
21 Q. When is the next time there was any incidents of
22 violence between you and Mr. Barnette, if any?
23 A. I had just started seeing somebody else. And I hadn't
24 really talked to Mark in a while, and he came over. And I was
25 expecting company when he came over, so I didn't really ask who
160
1 it was or look to see who it was, I just opened the door because
2 I was expecting somebody else. And he came in, and --
3 Q. And where were you when this incident occurred?
4 A. On Parson Street.
5 Q. And whose house were you at?
6 A. My mother's.
7 Q. Would this have been in March of 1994?
8 A. Yes.
9 Q. And what, if anything, happened when Barnette came into
10 your house on that day?
11 A. I asked what he was he doing there, and he said that he
12 wanted to talk. And we talked for a little bit, and then I was
13 like edging him towards the door to leave. And my mom keeps a
14 bat behind the door for protection, you know, it's just her and
15 my brother and I. And he picked up the bat and he beat me with
16 the bat.
17 Q. And why did he do that, did he say anything to you?
18 A. I don't remember what he said. I don't remember -- no,
19 I don't remember what he said.
20 Q. Do you remember what provoked the beating?
21 A. I guess because I told him to leave. I don't know what
22 provoked the beating, I can't be honest, I don't know.
23 Q. So tell the jury what he did with that bat.
24 A. Like I said, he beat me with it for what seemed like
25 forever. He was hitting me everywhere. He split my hand open.
161
1 I had to get two layers of stitches, I think it was 12. I
2 didn't notice until the day after that I had bruises, thighs,
3 back, torso, legs, everywhere, I was completely black and blue.
4 After that incident, I started --
5 Q. Did you tell your mother about that incident?
6 A. I kind of lied to her. I told her, because I wasn't
7 supposed to be seeing him, I told her that I cut my hand on some
8 glass that I found in the front yard.
9 Q. Your mother objected to your relationship with the
10 defendant Barnette?
11 A. Oh, yeah, uh-huh.
12 Q. What was your next contact with him after that
13 incident?
14 A. (No response.)
15 Q. Did there come a time when you met him at a motel?
16 MR. LAUGHRUN: Objection to the leading.
17 THE COURT: He just asked her did there come a time, is
18 that what you're talking about?
19 MR. CONRAD: Yes.
20 THE COURT: Overruled.
21 THE WITNESS: Yeah. We were supposed to meet that
22 morning at a hotel on Clanton Road, and we did. I met him over
23 there. He was already -- no, I got there first, and I was
24 waiting across the street.
25 BY MR. CONRAD:
162
1 Q. Why were you meeting him on that day?
2 A. We had -- you know, we were not together and we
3 were -- well -- we were trying to, I would almost say work it
4 out, but -- we were going to talk, we were going to talk. And
5 then once we got there, I had a book bag and I had an address of
6 a guy that I knew that was in college. And he went through my
7 things when I was in the bathroom and he found the address of
8 the guy, and he was like, who is this. And the guy was just a
9 friend, he wasn't really a boyfriend I was seeing, he was just a
10 friend. And I told him that he was in college and I wanted to
11 write to him, and he grabbed me by my hair. And that's when he
12 pulled that big clump of hair, and he did this twice, you know.
13 The first time, he drew a lot of hair, and then the second time,
14 it was just a little bit. And then he was punching me, he was
15 punching me. And --
16 Q. On that day, did you and the defendant Barnette have sex
17 together?
18 A. Uh-huh, yes.
19 Q. Did there come a time after that when another incident
20 occurred between you and the defendant?
21 A. Oh --
22 Q. Let me turn your attention to March 25th. Did there
23 come a time when you came home from work and he was at your
24 mother's house?
25 A. Yes.
163
1 Q. Tell the jury what happened on that date.
2 A. One of the managers that I work for at Bojangles' had
3 dropped me off, and I was -- I didn't have my key out, so I was
4 getting my key out while I was on the porch to unlock the door.
5 And Mark was sitting across the street. I didn't notice the car
6 because there are a lot of junk cars on the street and I just
7 thought it was another junk car. And he walked -- I never heard
8 him walk up, I just turned and there he was. And he told me to
9 be quiet. He said, don't yell because I got a gun. I never saw
10 the gun. He pulled me to the side of the house, and I was like,
11 oh, God, not this again. And he had like his hand in his pocket
12 towards my side like the gun was in his pocket, and then he told
13 me to get in the car, he wanted to take me somewhere. And we
14 sat in the car for a little bit, and he was asking me all kind
15 of stuff, I don't remember what the conversation was. And
16 eventually we drove off, and we were driving through downtown.
17 And I still have the stitches in my hand from the bat incident
18 and I told him I wanted to stop and get some medicine for my
19 hand, but I wanted to try to get away if he stopped, but he
20 never stopped. And he took me back to his mother's house, and
21 we pulled into his driveway and he was still talking. And he
22 wanted to have sex and I didn't, and so I still had on my work
23 shirt and he ripped it and then he took the shirt and started
24 strangling me with it.
25 Q. Where were you when this was all taking place?
164
1 A. In the car that he picked me up in.
2 Q. In the driveway of his mother's home?
3 A. Uh-huh. And then I couldn't breathe. I was gasping for
4 air, and I told him, you know, do whatever you want to do. And
5 he said, don't say it like that, you sound like a whore. I
6 said, well, that's what you treat me like. And then he let go
7 of the shirt and he stopped strangling me, and then we had sex
8 there in the car. And then we got out of the car and went to
9 his house, and we were in his bedroom and we talked about a
10 number of things. And he wanted to have sex again, and I said,
11 well, after we have sex, I want to go home. And we did, we had
12 sex again, and after he did, he let me go home. He called a cab
13 and let me --
14 Q. Why did you go into his house?
15 A. I don't -- I mean, when things like that are happening
16 to you, you don't know what to expect, especially when you've
17 had things that happened to me before. I didn't know what to
18 expect. And so, you know, go in the house, you're going to go
19 in the house unless you want something to happen to you. And I
20 was already frustrated and I was tired from the strangulation
21 and then having to work a full shift. I was ready to get the
22 night over with and let him do what he wanted to do so I could
23 go home, if I was able to go home.
24 Q. So did you call a cab and go home?
25 A. He called the cab, uh-huh.
165
1 Q. And what happened when you got home?
2 A. My mother, when I opened the door she was in the living
3 room. She said, where have you been, and I was like -- and I
4 told her everything that happened and she called the police.
5 And I went in the bathroom. While she was on the phone with the
6 police, I went in the bathroom and I just washed. I felt just
7 so dirty. And --
8 Q. What was your emotional state?
9 MR. LAUGHRUN: Objection.
10 THE COURT: Overruled.
11 THE WITNESS: I was shaking, I could barely talk,
12 crying. I said -- I told my mom that I just wanted to kill him,
13 kill him to get him out of my life, you know. I was just so --
14 I don't know. And then after I said that, you know, that's when
15 she called the police and I went to the bathroom. And when I
16 came out of the bathroom, the police were already there and they
17 took me downtown for a rape kit.
18 BY MR. CONRAD:
19 Q. And was a rape kit done?
20 A. Yes.
21 Q. And were you interviewed?
22 A. Yes.
23 Q. And did you tell the police what happened that night?
24 A. I told them what happened that night, uh-huh.
25 Q. Did you tell them about the previous week when you met
166
1 the defendant at a hotel and had sex with him?
2 A. No, I didn't.
3 Q. Did there come a time when you later told the police
4 that?
5 A. Yeah. They had me in one room and Mark in another, and
6 he told them about the week before. And so she asked me about
7 it, and I told her that that did happen.
8 Q. Let me hand you what has been marked for identification
9 as Government's Exhibit 55C, and ask you if you can identify
10 that document?
11 A. Yes, that's --
12 Q. Is that -- go ahead.
13 A. That's the statement I gave that day.
14 Q. And does it bear your signature on the last page?
15 A. Yes.
16 MR. CONRAD: Your Honor, if I could have one second.
17 (Pause.)
18 MR. CONRAD: Your Honor, that's all I have of this
19 witness.
20 THE COURT: Cross?
21 CROSS-EXAMINATION
22 BY MR. LAUGHRUN:
23 Q. Ms. Chambers -- Ms. Houston, I'm sorry, when you first
24 started seeing Mark, I take it it was something that you were
25 excited about?
167
1 A. Yes, in the beginning, uh-huh.
2 Q. Both of you were?
3 A. Yeah.
4 Q. And as you got to know Mark, did you find him to be very
5 immature?
6 A. You said immature?
7 Q. Very immature?
8 A. Immature, no.
9 Q. Childish in any way?
10 A. No.
11 Q. Possessive?
12 A. Yes.
13 Q. Jealous?
14 A. Yes.
15 Q. Insecure about your relationship?
16 A. Yes.
17 Q. Not trusting of you?
18 A. Yes.
19 Q. Thinking when he wasn't with you, you were having
20 affairs or seeing other men?
21 A. Yes.
22 Q. Which wasn't true, but that's what he thought?
23 A. Yes.
24 Q. That's what he accused you of, right?
25 A. Yes.
168
1 Q. Now, let's go back to the incident that happened at your
2 uncle's house, okay, I believe that was November '93, is that
3 correct?
4 A. Yes.
5 Q. You and your mom had had a lot of problems during that
6 period of time, hadn't you?
7 A. Yes.
8 Q. An awful lot of problems, in fact, you moved out,
9 correct?
10 A. Uh-huh.
11 Q. Lived with your aunt for a while?
12 A. Yes.
13 Q. Lived with your uncle for a while?
14 A. Yes.
15 Q. In fact, you were separated from your mom when you met
16 Mark, weren't you?
17 A. Yes.
18 Q. Talked on the phone for hours?
19 A. Uh-huh.
20 Q. Past midnight, is that right?
21 A. Yes.
22 Q. And your mother found out about it?
23 A. Yes.
24 Q. And she didn't like it, did she?
25 A. Well, I mean, in the beginning, she was fine. And then
169
1 problems started between him and I, and then that's when she
2 started to disapprove.
3 Q. And you had huge arguments with your mom about it,
4 didn't you?
5 A. Yes.
6 Q. Violent arguments?
7 A. Uh-huh.
8 Q. Lot of bad words, profanity back and forth about that?
9 A. On her part.
10 Q. Not on yours, but she was accusing you and things like
11 that, is that right?
12 A. (Witness nods head.)
13 Q. Your mom didn't want you staying with Mark, did she?
14 A. Yes, that's correct.
15 Q. And you stayed at his house on West Boulevard for a
16 while, didn't you?
17 A. Maybe like a day or so. I wasn't -- I didn't stay
18 there.
19 Q. You knew Sonia?
20 A. Yes.
21 Q. That's Mark's mom?
22 A. Uh-huh.
23 Q. You knew Mario?
24 A. Yes.
25 Q. Knew Sheila Cooper, his sister's mom?
170
1 A. Yes.
2 Q. You liked them, didn't you?
3 A. I liked his mom in the beginning, yes.
4 Q. And they liked you?
5 A. In the beginning, yes.
6 Q. You didn't want to go back and live with your mom, did
7 you?
8 A. I wouldn't say I didn't want to. I --
9 Q. Y'all never could work it out, could you?
10 A. No.
11 Q. In fact, your mom came over while you were at Mark's one
12 time and persuaded you to come back with her, didn't she?
13 A. Yes.
14 Q. And y'all got in a huge argument?
15 A. No, it wasn't a huge argument.
16 Q. Well, she called the police and said that you were being
17 held at 3413 West Boulevard against your will, didn't she?
18 A. Yes, uh-huh.
19 Q. And that really wasn't true then, was it?
20 A. No, not really, no.
21 Q. And that wasn't a huge argument, but it was so bad that
22 your mom called 911 to try to get you home, is that right?
23 A. I mean, the argument wasn't with me, no, we weren't
24 really arguing. The argument was more so with Mark than it was
25 with me.
171
1 Q. In any event, she called the police to get you out of
2 there, although you wanted to stay there, didn't you, you didn't
3 want to go with your mom, did you?
4 A. In a way, I did, but in a way, I didn't. I would rather
5 have stayed where I was.
6 Q. Now, you left at that point and moved in with another
7 relative, is that right, is that when you moved in with your
8 uncle?
9 A. It was a while after that, uh-huh.
10 Q. And in the summer of '93, you moved into a hotel with
11 Mark, didn't you?
12 A. In the summer, uh-huh.
13 Q. And y'all were both working then?
14 A. Yes.
15 Q. Living out of the hotel?
16 A. Uh-huh.
17 Q. And when was this time wise, summer of '93?
18 A. Yeah, late June, early July.
19 Q. And you told Mr. Conrad that the problems started in
20 June of '93, is that right?
21 A. Yeah.
22 Q. Even with the problems, you still moved into a hotel
23 with him for that two to three-month period in June, July and
24 August '93, is that right?
25 A. Yes.
172
1 Q. You never called the police about him hurting you,
2 hitting you, is that right?
3 A. No.
4 Q. Never were asked to leave the hotel because of that?
5 A. No.
6 Q. It was one of those hotels that are rented by the week
7 and month, is that right?
8 A. Yes.
9 Q. Now, during that time, you both worked?
10 A. Uh-huh.
11 Q. What did you do then, ma'am?
12 A. I was at Bojangles' then.
13 Q. Where did Mark work, do you recall?
14 A. No, I can't remember.
15 Q. Do you remember him working at Selectron then?
16 A. Uh-huh.
17 Q. And eventually y'all couldn't afford to stay there,
18 could you, because of the rent and everything else, isn't that
19 correct?
20 A. I can't say we couldn't afford it. He stopped working
21 at Selectron and that kind of messed the money up, yeah.
22 Q. Now, at some point, did your mom move out -- you moved
23 back to your mom's, didn't you?
24 A. That was to my uncle's.
25 Q. Now, in August of '96, you moved back with your mom,
173
1 though, didn't you?
2 A. Uh-huh.
3 Q. For a little while, is that right?
4 A. Uh-huh.
5 Q. And then she told you not to see Mark again?
6 A. Yeah.
7 Q. And during that period of time, you snuck around and saw
8 him?
9 A. Yes.
10 Q. A lot of times, right?
11 A. Yes.
12 Q. Met him at hotels?
13 A. Yes.
14 Q. Met him at his place on West Boulevard where Sonia
15 lived?
16 A. Uh-huh.
17 Q. You didn't have any trouble finding the address over
18 there, did you?
19 A. To --
20 Q. To the 3413 West Boulevard, you knew where that address
21 was, didn't you?
22 A. Yes.
23 Q. It existed back in '93, didn't it?
24 A. Uh-huh.
25 Q. Now, the incident that happened at your uncle's when you
174
1 were folding the clothes?
2 A. Uh-huh.
3 Q. Mark had seen you that day at Bojangles', had come
4 through the drive-through, hadn't he?
5 A. Yes.
6 Q. And you recognized his voice?
7 A. Uh-huh.
8 Q. And he -- somebody waited on him and he drove off, is
9 that right?
10 A. Uh-huh.
11 Q. Nothing bad happened then, is that right?
12 A. Not particularly bad, no.
13 Q. And the incident you told us about when he came in and
14 threw you over his shoulder, right?
15 A. Uh-huh.
16 Q. And Mark hasn't changed much then, still about the same
17 size, is that right?
18 A. Yes.
19 Q. And you told this jury, and forgive me, I'm going to
20 throw you over the fucking balcony, is that what he told you?
21 A. Uh-huh.
22 Q. And that incident happened almost four and a half years
23 ago, is that right?
24 A. Yes.
25 Q. Do you recall you testifying about this case earlier
175
1 back in 1993?
2 A. Yes.
3 Q. In State Court?
4 A. Uh-huh.
5 Q. And you were asked the question, what did he say to you,
6 and you said, he said something, but I don't remember what, and
7 then he said that, I don't know what he said?
8 A. Uh-huh.
9 Q. Do you remember testifying to that then?
10 A. Yes.
11 Q. And that was closer to the incident than this incident
12 was, is that right?
13 A. Yes.
14 Q. You were under oath then?
15 A. Yes.
16 Q. And that's what you told the jury then, is that right?
17 A. Yes.
18 Q. Now, when he came over and you were folding the clothes
19 and you said he threw you over the balcony, you had some
20 discussions about you being pregnant, didn't you?
21 A. Uh-huh.
22 Q. What was his reaction to that?
23 A. I guess he was happy about it.
24 Q. And you weren't, were you?
25 A. No.
176
1 Q. And he was excited about it, wasn't he?
2 A. Uh-huh.
3 Q. In fact, he was ecstatic about it?
4 A. Uh-huh.
5 Q. And you didn't want a child?
6 A. No.
7 Q. Y'all had a lot of discussions about that, didn't you?
8 A. Yes.
9 Q. Pretty heated discussions?
10 A. I wouldn't say heated, no.
11 Q. Long discussions?
12 A. Yes.
13 Q. Mark wanted children, you didn't at that time?
14 A. Uh-huh.
15 Q. And you were 16 at the time?
16 A. Yes.
17 Q. And Mark was how old, 19?
18 A. I think he was older than that.
19 Q. You cried a lot about the baby, didn't you, both of you
20 did, is that correct?
21 A. Yes.
22 Q. And you told him you didn't know what you were going to
23 do about the child, isn't that right?
24 A. I don't remember saying that.
25 Q. Do you recall testifying about this matter back in 1993
177
1 and you were asked, you were pregnant at this point, answer,
2 yes, you told him that, yes, and those discussions were off the
3 hill, weren't they, sometimes, and in fact they became very sad
4 discussions before November 8th, didn't they, and you said yes.
5 Is that a fair statement?
6 A. Yes.
7 Q. The night y'all left the apartment, you sat and talked
8 about the relationship back at his house?
9 A. Yes.
10 Q. How long were you up in his room.
11 A. Not long, less than 30 minutes, more than 15.
12 Q. What did y'all do when you were up there?
13 A. We just talked.
14 Q. Talked about the child, didn't you?
15 A. I don't remember exactly what we talked about.
16 Q. Do you recall smoking a cigarette then?
17 A. I don't smoke.
18 Q. Do you recall telling the jury at the last trial you
19 testified in, quote, what did the two of you do then, question
20 by District Attorney Thomas Porter, answer, we sat down and
21 smoked and talked, did you tell him that?
22 A. I didn't say smoked.
23 Q. Okay. Have you seen the transcript of that testimony?
24 A. No.
25 MR. LAUGHRUN: Approach the witness, Your Honor?
178
1 THE COURT: Yes, sir.
2 BY MR. LAUGHRUN:
3 Q. Ms. Houston, I will ask you, on Page 91 of the
4 transcript, again, this is the defendant telling you this,
5 answer, yes. What, if anything, else did he say? Answer,
6 during the course of the night? Question, at that time.
7 Nothing. Question, what did the two of you do then? Answer, we
8 sat down and talked and smoked. Question, and you did -- and
9 did you want to be there talking to him? Answer, no. What were
10 you sitting on? On the floor, like there were clothes on the
11 floor, but on the clothes. Question, and do you recall what you
12 talked about? Answer, our relationship and things that led to
13 our breakup, things that happened, just our relationship
14 really. Do you recall that being the conversation?
15 A. Yes, except for the smoke part. I did not say and we
16 smoked, because neither of us smoked. I wouldn't have said
17 that.
18 Q. And you never knew Mark to do drugs or anything, did
19 you?
20 A. No, but he acted like it.
21 Q. I'm sorry, ma'am?
22 A. No, but he acted like it.
23 Q. How long were you there, 15 minutes I think you told me,
24 is that a fair --
25 A. Between 15 and 30.
179
1 MR. LAUGHRUN: Approach the witness again, Your Honor?
2 THE COURT: Yes, sir.
3 BY MR. LAUGHRUN:
4 Q. I will ask you if you were asked the question three
5 years ago under oath, do you know how long you were in the
6 residence? Answer, I was there at least two or three hours.
7 Do you recall being asked that and that being your
8 answer closer to the incident than now?
9 A. I guess I said that, I don't know, I don't remember
10 that, the exact testimony.
11 Q. Okay. The police showed up there?
12 A. Uh-huh.
13 Q. Now, before the police had shown up, you and Mark had
14 gone over to Checkers on South Boulevard, had you not?
15 A. Uh-huh.
16 Q. Checkers is like a drive through fast food restaurant,
17 right?
18 A. Yes.
19 Q. Mario worked there, didn't he?
20 A. Yes.
21 Q. And you knew Mario?
22 A. Uh-huh.
23 Q. You'd seen him before?
24 A. Uh-huh.
25 Q. Mark's younger brother?
180
1 A. Yes.
2 Q. You liked Mario?
3 A. Yes.
4 Q. He liked you?
5 A. Uh-huh.
6 Q. You didn't tell him, Mario, what is up with Mark, what
7 is he doing this, anything like that, did you?
8 A. No.
9 Q. Now, when the police knocked on the door you said Mark
10 left, is that right?
11 A. Yes.
12 Q. Do you recall an officer showing up named Beth Joye,
13 Elizabeth Joye, a female officer?
14 A. Female, yes.
15 Q. Blond hair officer?
16 A. Yes.
17 Q. And you knew her, you know her from this incident,
18 right?
19 A. Yeah.
20 Q. Now, when you were talking about the child and
21 everything, did Sonia know what y'all were talking about, do you
22 know?
23 MR. CONRAD: Objection to what somebody else knew.
24 BY MR. LAUGHRUN:
25 Q. Did she say anything to you about the child?
181
1 A. No.
2 Q. Let's talk about the incident, the Parson Street
3 incident with the baseball bat, okay?
4 A. Okay.
5 Q. That happened when in March of '94?
6 A. You mean the date?
7 Q. Roughly, any idea, rough date?
8 A. (No response.)
9 Q. It was sometime before March 25th of '94, wasn't it?
10 A. I don't remember the exact date.
11 Q. When did y'all go to the Motel 6 off Clanton Road?
12 A. That was -- I can't remember exactly when.
13 Q. Sometime in March of '94?
14 A. Yeah.
15 Q. And this was by your consent?
16 A. Uh-huh.
17 Q. I think you told us you waited in the parking lot, is
18 that right?
19 A. Uh-huh.
20 Q. You went in and rented a room for the day?
21 A. Uh-huh.
22 Q. Had sexual relations there?
23 A. Uh-huh.
24 Q. Voluntary on your part?
25 A. Uh-huh.
182
1 Q. And this is after the incident where a dish rag was put
2 in your mouth, is that right?
3 A. I think so.
4 Q. After being hit with a baseball bat, I think you told us
5 you were beaten about the head several times and you had 12
6 stitches in your hand, is that right?
7 A. I don't really remember having stitches when I was
8 there.
9 Q. Let me ask you this, you told -- you had Mark arrested
10 for rape, didn't you?
11 A. Yes.
12 Q. And those charges were not even prosecuted by the
13 District Attorney, were they?
14 MR. CONRAD: Objection.
15 THE COURT: Objection to what?
16 MR. CONRAD: This.
17 MR. LAUGHRUN: We have got a right to go into it, Judge,
18 it goes to credibility.
19 THE COURT: I haven't found out what he is objecting to
20 yet. What are you objecting to?
21 MR. CONRAD: Your Honor, he asked whether she knew
22 whether the charges had been dismissed by the District
23 Attorney. It's clearly an impermissible question.
24 MR. LAUGHRUN: Judge, the inference is she had a rape
25 kit done.
183
1 MR. CONRAD: There is no inference, Judge.
2 THE COURT: I'll overrule it, go ahead.
3 BY MR. LAUGHRUN:
4 Q. And you know, Ms. Houston, do you not, that that charge
5 was not even prosecuted by the District Attorney, don't you?
6 A. Yes.
7 Q. Now, when you did the police report for the alleged
8 rape, you didn't tell them about the Clanton Road Motel 6
9 incident, did you?
10 A. No, I didn't.
11 Q. Mark told them about that, didn't he?
12 A. Uh-huh.
13 Q. And that was true, wasn't it?
14 A. Yeah.
15 Q. Then they came back to you and asked you, why didn't you
16 tell us about that incident, is that right?
17 A. Uh-huh.
18 Q. And I believe you told us when you gave the statement to
19 the police about the rape, alleged rape, you still had stitches
20 in your hand, is that right?
21 A. Yeah.
22 Q. So the incident where you went to the motel room
23 voluntarily with Mr. Barnette, you still had the stitches in
24 your hand is that right?
25 A. I just do not remember having stitches in my hand at
184
1 that time.
2 Q. The incident where you said that you went to Mark's
3 house and he allegedly strangled you, is that right?
4 A. Uh-huh.
5 Q. No charges were prosecuted for that, were they, not an
6 assault or anything, is that right?
7 A. Not that I remember.
8 Q. And you said he strangled you and then you had sex in
9 the car with him?
10 A. Uh-huh.
11 Q. Went upstairs and had sex again with him?
12 A. Uh-huh.
13 Q. And you asked him to call a cab for you and he did?
14 A. Yes.
15 Q. In fact, he walked down to the end of the driveway with
16 you, didn't he?
17 A. Uh-huh.
18 Q. And that driveway is a snakelike driveway from West
19 Boulevard, is it not?
20 A. Yes.
21 Q. Right across from Della Hay Courts, isn't it?
22 A. No, Boulevard Homes.
23 Q. Boulevard Homes, I'm sorry, public housing project on
24 West Boulevard, isn't that right?
25 A. Yes.
185
1 Q. And he walked with you down there and waited with you
2 until the cab showed up?
3 A. Uh-huh.
4 Q. In fact, he paid for the cab, didn't he?
5 A. I don't remember him paying for the cab, I don't know.
6 Q. When -- Ms. Houston, when Mr. Barnette was arrested for
7 the break-in at your uncle's apartment that's the one the door
8 was kicked in, is that right, ma'am?
9 A. Yes.
10 Q. And after that incident happened, the next day an
11 incident happened at Bojangles', or three or four days later at
12 Bojangles', is that right?
13 A. Uh-huh.
14 Q. You knew he was out on bond, did you not, because you
15 saw him, didn't you?
16 A. Yeah, I saw him, yes.
17 Q. In fact, you saw him a lot after that, didn't you?
18 A. After the --
19 Q. After the incident at Bojangles', you still kept seeing
20 him, didn't you?
21 A. Like I said earlier, you just can't leave Mark, huh-uh.
22 I mean, if you want to keep having your life threatened and
23 having to go through things, yeah, you can leave. But I
24 don't -- huh-uh.
25 Q. The question to you, ma'am, was you still kept seeing
186
1 him?
2 A. Yeah, uh-huh.
3 Q. You didn't call the District Attorney's office and say
4 this man is threatening you, revoke his bond, did you?
5 A. No.
6 Q. You knew they would put him in jail without bond if he
7 threatened a witness, do you know that?
8 A. No.
9 Q. You are in security, aren't you?
10 A. Yes.
11 MR. LAUGHRUN: Thank you, Judge Potter.
12 THE COURT: Redirect?
13 MR. CONRAD: Yes, thank you, Your Honor.
14 REDIRECT EXAMINATION
15 BY MR. CONRAD:
16 Q. Ms. Chambers, when you testified in the proceeding
17 of '93, you are aware that the jury convicted the defendant of
18 felonious restraint, are you not?
19 A. Yes, sir.
20 Q. And breaking and entering?
21 A. Uh-huh.
22 Q. And that was for the incident at your uncle's apartment
23 when he kicked in the door and took you to the house on West
24 Boulevard, correct?
25 A. Yes.
187
1 Q. And that was set for trial the day after he accosted you
2 at your mother's house and forced you to go back to his mother's
3 house where he raped you in the driveway, is that correct?
4 MR. LAUGHRUN: Objection to that, Judge, the
5 characterization.
6 THE COURT: Well, I will sustain that.
7 BY MR. CONRAD:
8 Q. That was set for trial the day after he accosted you at
9 your mother's house, brought you to the driveway of his mother's
10 house and as you testified to earlier, ripped your shirt off and
11 engaged in sexual intercourse with you in the car, is that
12 correct?
13 A. That's correct.
14 Q. Ms. Chambers, do you have any idea how many cases the
15 District Attorney's office dismisses every year?
16 MR. LAUGHRUN: Objection, Judge.
17 THE COURT: Well, sustained.
18 BY MR. CONRAD:
19 Q. Ms. Chambers, let me approach with the exhibits that you
20 previously identified, Government's Exhibits 55A, 55B, 55C, and
21 let me also show to you for the first time Government's Exhibit
22 55D, and ask you whether or not you recognize that exhibit?
23 A. Yes.
24 Q. And what is Government's Exhibit 55D?
25 A. That's the original statement that I gave first, uh-huh.
188
1 Q. On March 25th, 1994?
2 A. Uh-huh.
3 Q. And did -- in that statement, were the events that
4 happened on that day fresh in your mind?
5 MR. LAUGHRUN: Objection, Judge, improper bolstering.
6 THE COURT: Overruled.
7 THE WITNESS: Pretty much so.
8 BY MR. CONRAD:
9 Q. And did you tell the officers what happened as best you
10 recall those events that happened on that day?
11 A. On that day, yes.
12 Q. And then Government's Exhibit 55C, in that interview did
13 you tell the officers about what happened the week before
14 between you and Mark Barnette?
15 A. Yes, after Mark told them that this incident occurred,
16 yes.
17 MR. CONRAD: Your Honor, I'd move admission of
18 Government's Exhibits 55A, B, C and D.
19 THE COURT: They will be admitted.
20 MR. CONRAD: Thank you, Your Honor.
21 BY MR. CONRAD:
22 Q. Now, with respect to Government's Exhibit 55A, which is
23 a statement you've previously identified you gave to police
24 officers after they came and got you from 3413 West Boulevard
25 and rode you down the street a little bit, you gave a statement?
189
1 A. Uh-huh.
2 Q. Were the events that you talked about with that officer
3 fresh in your memory at that time?
4 A. They just happened, uh-huh.
5 Q. Let me turn your attention to Page 3 of that statement
6 that you gave that is marked and introduced into evidence as
7 Government's Exhibit 55A, and I will ask you whether or not you
8 told officers what happened after Mr. Barnette put you in the
9 car at your uncle's apartment?
10 A. Tell what I wrote here?
11 Q. Can you tell the jury what you told that officer on that
12 date, starting at the fourth line from the bottom of that?
13 A. It says, Alesha, if you try to get out of the car, I'll
14 fucking kill you.
15 Q. Keep reading.
16 A. And then he drove to Checkers on Wilkinson Boulevard to
17 pick up his brother, Mario.
18 Q. Okay. Is that what happened on that day?
19 A. Yes.
20 Q. And what happened after he picked up his brother at
21 Checkers?
22 A. Read from here?
23 Q. Yes.
24 A. I just sat quietly and Mark drove us back to his house
25 on 3413 West Boulevard.
190
1 Q. And then after that, did the police come?
2 A. Uh-huh.
3 Q. Was there another incident that you testified about
4 concerning March 25th where he took you back to his mother's
5 house and where the incident in the car occurred?
6 A. Yes.
7 Q. And on that night, did you spend several hours at West
8 Boulevard?
9 A. It doesn't seem like it was that long now, but yeah, I
10 was there.
11 MR. CONRAD: Your Honor, that's all I have of this
12 witness at this time.
13 MR. LAUGHRUN: May I, Judge?
14 THE COURT: Yes.
15 RECROSS-EXAMINATION
16 BY MR. LAUGHRUN:
17 Q. Mrs. Houston, we had talked -- Mr. Conrad asked you
18 about some statements about what happened and you identified
19 those. And in one of your statements you made on March 25th,
20 1994, statement to Officer R.D. Robinson, Mark had a flashlight
21 and made the cab come back, I got in the cab and he told me he
22 loved me. Is that what happened after the March 25th incident,
23 do you recall making that statement?
24 A. That's what he said, but, so? He still raped me. It
25 doesn't matter if he said he loved me. I'm sure most rapists
191
1 that rape people they know say they love them.
2 Q. The question to you, ma'am, is the charge was not
3 prosecuted, that's what he told you, he made the cab come back
4 after it went by, is that correct?
5 A. Yes.
6 Q. Now, you told us about the incident at the Motel 6?
7 A. Uh-huh.
8 Q. That you drove over there and waited on him, is that
9 right?
10 A. I waited on him, uh-huh.
11 Q. Did you drive over there?
12 A. No, I caught the bus.
13 Q. And you waited on him to get there?
14 A. Uh-huh.
15 Q. 8:30 in the morning, is that right?
16 A. It was in the morning, yes.
17 Q. You were there until about 1:00 o'clock?
18 A. Uh-huh, about.
19 Q. And you walked together to the hotel, is that right?
20 A. Uh-huh.
21 MR. LAUGHRUN: That's all, Judge, thank you.
22 MR. CONRAD: No questions.
23 THE COURT: Thank you, come down. Call your next
24 witness.
25 MR. CONRAD: United States would call Jasper Chambers.
192
1 JASPER CHAMBERS,
2 being first duly sworn, was examined and testified as follows:
3 DIRECT EXAMINATION
4 BY MR. CONRAD:
5 Q. Sir, would you state your name for the jury?
6 A. Jasper Chambers.
7 Q. And Mr. Chambers, are you related to Alesha Chambers
8 Houston?
9 A. Yes, I am.
10 Q. How are you related?
11 A. She is my sister's daughter, she is my niece.
12 Q. In November of 1993, did you live at Watson Drive off of
13 West Boulevard in Charlotte?
14 A. Yes.
15 Q. And do you recall any incidents in November of 1993
16 involving someone breaking into your house?
17 A. Yes.
18 Q. Would you tell the jury the first incident in which that
19 occurred?
20 A. The very first incident was my niece Alesha was living
21 with me, and we were -- it was in the morning time, early in the
22 morning, around 9:00, 10:00. And we were up, and a knock at the
23 door.
24 Q. Who was in the house with you at the time you heard the
25 knock?
193
1 A. Alesha.
2 Q. Was there anyone else?
3 A. Yeah, I had a younger brother there.
4 Q. So there was you, your younger brother and Alesha?
5 A. Yes.
6 Q. And what happened after you heard a knock at the door?
7 A. We didn't care to answer it -- well, we answered the
8 door. It was -- found out who it was, it was Aquilia Barnette.
9 And she didn't want to speak with him right then, so I just said
10 through the door that she didn't want to speak with him right
11 now. So nothing, no problem, just maybe a couple minutes went
12 by. We went back and had a seat in the living room. Couple of
13 the minutes later, the door just comes flying open, boom, and he
14 walks in. He walks over to her, he just walks over to where she
15 is laying on the couch and he gets her scarf that she has
16 wrapped on her head to sleep with and just pulls it off, and
17 asks, why, Alesha, why. That was all he said, just why. Then
18 he left.
19 Q. Did there come a time when your door was kicked in
20 again?
21 A. Yes.
22 Q. What do you know about that?
23 A. I came home from work, it was after midnight, and my
24 door was already busted open, kicked wide open. Part of it was
25 torn away where the bolt lock was in and it broke away. The
194
1 lights were still on, the curtain was halfway away from the
2 window, had a roll shade in one window. And he -- well, I
3 didn't want to go in. I just figured someone had broken in. I
4 didn't know what was going on.
5 Q. Did there come a time when you actually did go in?
6 A. Well, yeah, after I called the police to come in and
7 they went in.
8 Q. And describe for the jury what your apartment looked
9 like when you went inside.
10 A. It looked like somebody had been rumbling around in
11 there, maybe wrestling a little bit. The phone line had been
12 pulled out. Yeah, the shade was down like I thought it was.
13 And my niece wasn't there and I was expecting her to be there,
14 and I couldn't understand why she wasn't there.
15 MR. CONRAD: That's all I have, Judge.
16 THE COURT: Cross?
17 CROSS-EXAMINATION
18 BY MR. LAUGHRUN:
19 Q. Mr. Chambers, did you call 911?
20 A. I used a neighbor's phone and called 911.
21 Q. Right after that, is that right?
22 A. Well, when I got home.
23 Q. Right. When you got home, you called 911?
24 A. Yes.
25 MR. LAUGHRUN: Thank you, Judge.
195
1 THE COURT: Thank you, sir. Call your next witness.
2 MR. CONRAD: That's all I have, sir.
3 THE COURT: I said call your next witness.
4 MR. CONRAD: United States would call Investigator
5 Brandon.
6 W.T. BRANDON,
7 being first duly sworn, was examined and testified as follows:
8 DIRECT EXAMINATION
9 BY MR. CONRAD:
10 Q. Would you state your name and occupation for the jury,
11 please?
12 A. I am W.T. Brandon, and I am employed by the
13 Charlotte-Mecklenburg Police Department. I am a, in the sex
14 crime unit, rape investigator.
15 Q. And how long have you been employed as a rape
16 investigator?
17 A. Since August of '93.
18 Q. In March of 1994, were you so employed?
19 A. I was.
20 Q. Did you have occasion to become involved in an
21 investigation of one Aquilia Marcivicci Barnette with respect to
22 an incident which occurred on March 25th, 1994?
23 A. I did.
24 Q. Would you relate to the jury how you became involved in
25 that investigation?
196
1 A. At 7:17 on that morning, the 25th of March, 1994, I was
2 contacted by patrol. They were requesting investigators to
3 assist them in the preliminary investigation that occurred. The
4 rape occurred at 34 --
5 MR. LAUGHRUN: Objection to the conclusion, Judge, would
6 like to be heard.
7 THE COURT: The alleged rape, how about that?
8 MR. LAUGHRUN: Not prosecuted offense.
9 THE COURT: Pardon?
10 MR. LAUGHRUN: Or the not prosecuted offense.
11 THE COURT: All right, sir.
12 MR. CONRAD: Go ahead.
13 THE WITNESS: The alleged rape occurred at 3413 West
14 Boulevard. Officers were on the scene there and also had an
15 officer standing by with the victim at the hospital.
16 BY MR. CONRAD:
17 Q. Okay. And what, if anything, did you do when you
18 arrived on the scene?
19 A. Myself and Investigator ^ Grau went to the crime scene,
20 and once we arrived there we found out that we had the car which
21 was one crime scene. The alleged rape occurred in the car and
22 also the alleged rape occurred in his bedroom. So we had two
23 crime scenes there that we were dealing with. When we arrived
24 there, Mr. Barnette was in custody on an unrelated charge and
25 was in the back seat of a patrol car. We at that time obtained
197
1 permission from him to search the vehicle and also search his
2 residence, his room, and we advised him that we needed to
3 process these areas, and he did provide us consent to search.
4 Q. And what, if anything, did you search and what, if
5 anything, did you find?
6 A. I first focused my attention on the vehicle, which was
7 a -- it was a purple color Buick Regal, and it was parked on the
8 lower part of the driveway. As soon as you pull in off of West
9 Boulevard, the driveway kind of Y's out, and the vehicle was
10 pulled up into a portion of the driveway that didn't appear to
11 be used that much. The other driveway goes on up to the
12 residence. And a patrol car was parked directly behind the
13 vehicle, Mr. Barnette's vehicle, and that's the vehicle that he
14 was sitting in at that time. The officer advised us that he was
15 under arrest for that charge, and -- the unrelated charge.
16 As I was looking at the vehicle, I noticed on the
17 passenger side of the vehicle on the seat part, the bottom
18 cushion part, there was a torn fingernail. Later I found out
19 that that came from the small finger of the victim. When I saw
20 her at the hospital, I looked at that and she did have a
21 fingernail that had been torn. That fingernail was in the
22 vehicle on the seat, the bottom cushion. There was a, sort of a
23 pinkish, purple type shirt that was in the seat also, might have
24 been lavender color. That also belonged to the victim. In the
25 car, it was dirty, there was no back seat in the car, there was
198
1 some cans and fluids in the back floorboard area of the car.
2 That's basically what I remember about the car.
3 Then from there we went up to the room, myself and
4 Investigator ^ Grau and began talking to the people there. I
5 spoke with Mr. Barnette's mother, spoke with a cousin or an
6 aunt, his grandfather. At that point, I went ahead and started
7 making some notes. In the bedroom, as soon as you walked into
8 the bedroom, the floor was plywood. You could see the plywood
9 floor. There was no carpet on it or anything like that, no
10 tile. The bed was a mattress and a frame, a box frame. There
11 was no frame to the bed. The bed was positioned in the center
12 of the room up towards one wall on both sides.
13 Then you had clothes that were cluttering the areas.
14 There was a plate in there that had food on it and had been left
15 in there. It was the -- the back seat to the vehicle in the
16 room along one wall with piles of clothes thrown on it.
17 Directly in front of the bed on the floor was a black bra that
18 the victim had stated was hers. There was a lamp on the floor
19 that was stuck in a boot, stereo, cassette player was on the
20 floor.
21 Q. Investigator Brandon, what, if anything, did you do with
22 respect to the black bra that you recovered from the victim's
23 bedroom and the fingernail and the shirt that you described
24 being recovered from the car?
25 A. I had called for a crime scene technician to come to our
199
1 location and process both of those locations. We did at that
2 time, before anything was taken away and processed, all
3 photographs were taken of that area, the vehicle and the room.
4 At that point after that, our crime scene technician then went
5 in and collected the various evidence that we had pointed out to
6 him, and we also told him to collect methanol tapings of the
7 vehicle and in the bedroom, collected the linens, collected the
8 bra, the fingernail that was in the car, the shirt that was in
9 the car. These items were collected and turned in as evidence.
10 Q. Did you interview anybody at 3413 West Boulevard?
11 A. Yes, sir, I interviewed his grandfather.
12 Q. And what, if anything, did the grandfather say?
13 A. He said that he had been there all night. He said about
14 3:00 o'clock in the morning, had gotten up and checked on
15 Mr. Barnette, and he said that it appeared that he had been
16 sleeping. The grandfather, Jessie Cooper, stated that he did
17 not see anyone come in and did not hear any noise in the house
18 while he was there. Mr. Barnette's room is approximately about
19 15 feet or so, 20 feet away from where the grandfather said he
20 had been sitting most of the night.
21 Q. Did you interview anybody else at that residence?
22 A. Investigator Grau did.
23 Q. Who did she interview?
24 A. I think she interviewed the mother and also the aunt.
25 Q. Did you have occasion during this investigation to
200
1 interview the defendant, Aquilia Marcivicci Barnette?
2 A. Yes, I did.
3 Q. And prior to interviewing him, did you read him his
4 rights?
5 A. Yes, I did.
6 Q. Go ahead and tell the jury about how that interview took
7 place and where it took place.
8 A. The interview with Mr. Barnette took place at the law
9 enforcement center. Which at that time was located at 825 East
10 Fourth Street. That building has since been torn down. There
11 he was taken to felony investigation bureau in which I work, and
12 at that time, I did go in. He knew who we were. He knew we
13 were the police. He knew at that time we were investigating him
14 on the alleged kidnapping and rape. And at that time, I did
15 read him his adult waiver of rights, told him I would like to
16 get a statement from him, that, you know, there is always two
17 sides to every story and we would like to hear his side of the
18 story. At that time, I did read him his rights and he stated he
19 understood his rights. And he waived his right to counsel,
20 agreeing to speak with myself and other investigators.
21 Q. Did he make any statement to you with respect to whether
22 or not he had been with Alesha Chambers on that evening?
23 A. Yes, he did make a statement.
24 Q. What did he tell you?
25 A. He said that he had been with her that Wednesday but had
201
1 not been with her that night.
2 Q. He told you that he had not been with her that night?
3 A. Right.
4 Q. Did you ask him about the broken fingernail and the
5 shirt which were found in the car?
6 A. Yes.
7 Q. What, if anything, did he tell you about that?
8 A. He stated that she put those items there, that she had
9 been over to his house numerous times, knew what was in his room
10 and what was in his car, and that she had planted those items on
11 him.
12 Q. Did he indicate to you that his car could be easily
13 broken into?
14 A. Yes.
15 Q. Did you ask him about the bra that was found in his
16 bedroom?
17 A. Yes, sir. He said that when they were at the motel,
18 that she left it at the motel and that he brought it home with
19 him to give to her later.
20 Q. Did he indicate to you whether or not he had been to his
21 car on that evening?
22 A. Yes. He stated that he had been working on the car that
23 evening, finished working on it somewhere around the 10:00
24 o'clock time frame but had been having -- he had throughout that
25 day, he said he had to make a couple of trips to the auto parts
202
1 store to buy parts. I think when he returned home from working
2 on it, the last thing he did was go get gas and some power
3 steering fluid in it.
4 Q. Let me approach and hand to you what has been marked for
5 identification as Government's Exhibit 56A and Government's
6 Exhibit 56B, and ask you if you recognize those documents?
7 A. Yes, I do.
8 Q. Turning your attention to Government's Exhibit 56A,
9 describe what that is for the jury, would you, please?
10 A. This is a witness subpoena list. It's several papers
11 attached together. Some of these are just our departmental
12 policy procedures where we put information on it. The next one
13 is property disposition form, describing who is the
14 investigator, who is the victim, who is the suspect in the case,
15 the type of crime and items that were collected and turned in as
16 evidence on this case.
17 The next page is an adult waiver of rights form and
18 which Mr. Barnette signed in my presence after I read him his
19 adult waiver of rights, his Miranda rights. The next one is a
20 statement I took from Jessie Cooper, his grandfather, that
21 morning. The next one is the arrest affidavit that I filled out
22 on the case so that the magistrates would know the proper charge
23 and know the case for probable cause.
24 Q. And does Government's Exhibit 56A reflect the work that
25 did you in this case in this investigation?
203
1 A. Yes, sir.
2 Q. Turning your attention to the arrest affidavit, which --
3 MR. CONRAD: Your Honor, I'd move admission of
4 Government's Exhibit 56A.
5 MR. LAUGHRUN: Judge, object to the relevance and would
6 like to be heard.
7 THE COURT: Come on up here.
8 (Bench conference not recorded.)
9 THE COURT: Objection is overruled.
10 BY MR. CONRAD:
11 Q. Investigator Brandon, let me turn your attention to the
12 arrest affidavit that you filled out. Would you describe what
13 that -- what an arrest affidavit is?
14 A. An arrest affidavit is when a person is arrested and
15 taken before a magistrate, when the officer is not going to be
16 there personally to testify as to what happened and give the
17 facts of the case, then we have to put it on a form. And
18 as -- before we leave, we have to actually swear to the form in
19 front of a notary public or the magistrate themselves. So this
20 is information that I swore to that was true about the facts of
21 this case.
22 Q. And what information is contained in your arrest
23 affidavit?
24 A. It has the case numbers that I was investigating, and
25 then it has the defendant's name or the arrestee's name, birth
204
1 date, black male, type information, his address, the city and
2 state that he lives in, charge codes are the charges that we are
3 seeking on the particular case. And then it goes into the
4 narrative part about what happened, what are the facts of the
5 case. And we have to put in the information to explain to them
6 enough that would establish probable cause.
7 MR. LAUGHRUN: Objection, objection.
8 BY MR. CONRAD:
9 Q. Now, with respect --
10 THE COURT: Wait a minute, I will overrule the
11 objection, go ahead.
12 BY MR. CONRAD:
13 Q. With respect to your arrest affidavits, did you include
14 information that you uncovered as a result of your
15 investigation?
16 A. Yes, sir, I did.
17 Q. And did that include the results of a rape kit?
18 A. Yes, it did.
19 Q. And what, if anything, were those results?
20 MR. LAUGHRUN: Objection to his conclusion with the rape
21 kit. Judge, we are not consenting to any chain of custody. We
22 object to all of that. They want to bring in the folks, bring
23 them in, but we object to his conclusion of what was in there.
24 THE COURT: Overruled, go ahead.
25 MR. CONRAD: Go ahead.
205
1 THE WITNESS: When I arrived back to the law enforcement
2 center after returning back from the crime scene and the
3 hospital, meeting with the victim, I went up to our crime lab
4 and I asked one of our serologists to do a preliminary test on
5 the rape kit, some of the evidence that we had, to determine if
6 it there was semen present since Mr. Barnette stated that he had
7 not seen her that night. And that test was conducted, and I was
8 advised that --
9 MR. LAUGHRUN: Objection.
10 THE CLERK: There is an objection, Judge.
11 THE COURT: Oh --
12 MR. LAUGHRUN: Object to what he was told.
13 THE COURT: Come on up here just a minute on that.
14 (Bench conference not recorded.)
15 THE COURT: Objection is overruled.
16 BY MR. CONRAD:
17 Q. Officer Brandon, you were about to tell the jury what,
18 if anything, you put in your arrest affidavit concerning the lab
19 report as to the presence of semen.
20 A. Semen was present on the victim's clothing, vaginal
21 swabs, and the victim's bra was also recovered in the suspect's
22 bedroom.
23 Q. Turning your attention to Government's Exhibit 56, can
24 you identify that exhibit?
25 A. Yes, sir. This is the statement from the adult waiver
206
1 of rights. This is Mr. Barnette's statement that I took from
2 him. And then on Page 5 beginning towards the bottom, he wanted
3 to add some -- he wanted to add to his statement, which he did.
4 Q. So do I understand you to say that the first four pages
5 are a narrative that you wrote as a result of what things the
6 defendant told you?
7 A. The first four and a half to five pages.
8 Q. Okay. And then did you share that material with the
9 defendant?
10 A. Yes, sir. What I do is I ask them to tell me, this is
11 their statement, tell me exactly what you want me to write, and
12 that's what I write. And that's what I was doing. He was going
13 through, telling me a sentence or two at a time about what to
14 write and what he was stating, and I was writing it. And we got
15 to -- we got to Page 5, and I asked him was there anything else
16 he wanted to write, and that's when he says, well, can I write
17 it myself, and that's when he began writing.
18 Q. And did you give him the opportunity to write himself?
19 A. Oh, yes, sir, yes, sir yes.
20 Q. Let me turn your attention to that --
21 MR. CONRAD: Your Honor, I'd move admission of
22 Government's Exhibit 56B.
23 MR. LAUGHRUN: Objection to the relevance, Judge.
24 THE COURT: Objection overruled, let it be admitted.
25 What about A, did we ever get that?
207
1 MR. CONRAD: If I haven't, I'd move admission of 56A as
2 well.
3 THE COURT: 56A will be admitted.
4 BY MR. CONRAD:
5 Q. Now, let me turn your attention to Page 5 of that
6 report. Does that bear the first item which the defendant
7 wished to write in his own handwriting?
8 A. Yes, sir, it begins about three-fourths towards the
9 bottom of the page here, he begins writing.
10 Q. Okay. And this is the defendant's own handwriting in
11 your presence?
12 A. Yes, sir.
13 Q. Let me turn your attention to the next page. What is
14 the first entry there?
15 A. The next page that he wrote on?
16 Q. Yes.
17 A. That --
18 Q. Does it begin with, my car?
19 A. Sir?
20 Q. Does it begin with, my car?
21 MR. LAUGHRUN: Judge, we will stipulate to the
22 admissibility of the statement. If they want to admit it, let
23 them admit it.
24 THE COURT: Just pointing out to him where to start.
25 MR. LAUGHRUN: We'll stipulate to the whole statement,
208
1 Judge.
2 THE COURT: All right, sir.
3 BY MR. CONRAD:
4 Q. And I will ask you whether or not the material contained
5 in Government's Exhibit 56B, Page 5, was written by the
6 defendant in your presence?
7 A. Yes, it was.
8 Q. What, if anything, did he write at the top?
9 A. That's my handwriting.
10 Q. Okay.
11 A. Right here is where Mr. Barnette's handwriting starts.
12 This is where he wanted to start adding to his statement.
13 Q. And the material above Mr. Barnette's handwriting,
14 that's information that you put in?
15 A. That is information -- that is his statement as he is
16 giving it to me and I'm writing it down word for word what he is
17 telling me to write.
18 Q. Turning your attention to the top of that page, what, if
19 anything, did he tell you with respect to his car?
20 A. My car can be easily broken into, I can't lock the
21 passenger side door, the trunk does not have a lock either.
22 Q. Do you have the original of this --
23 A. Yes, I do.
24 Q. -- exhibit?
25 A. Right here.
209
1 Q. Is the original easier to read?
2 A. Yes, sir, it is.
3 Q. Turning your attention to the middle of that page on the
4 original, can you read what, if anything, he told you about the
5 material found inside the car?
6 A. Alesha left that bra at the motel on Wednesday and I
7 brought it home with me. That was her bra from Wednesday. I
8 have not been -- I have not been to my car since last night, so
9 I don't know if it's been tampered with. I can only tell you it
10 has not been moved.
11 Q. And did he in that statement continue to deny that he
12 had been with Alesha Chambers on that night?
13 A. Yes, sir.
14 Q. Did he have any explanation for how the broken
15 fingernail and the shirt could have been in his front seat?
16 A. Only that she planted it there.
17 MR. CONRAD: That's all I have, Judge.
18 THE COURT: Cross?
19 MR. LAUGHRUN: Yes.
20 CROSS-EXAMINATION
21 BY MR. LAUGHRUN:
22 Q. Investigator Brandon, how long have you been an
23 investigator?
24 A. Since August of 1993. I guess that's what, about five
25 years, coming up on five years.
210
1 Q. And the Charlotte Police Department has a special unit
2 that prosecutes sex offense cases, correct?
3 A. Yes, sir.
4 Q. Barry Cook is the District Attorney in charge of that
5 unit, is that right?
6 A. Juvenile cases. Marsha Goodenow was in charge of the
7 other.
8 Q. She went to homicide, right?
9 A. Right, David Wallace has it now.
10 Q. That's a special unit inside the DA's office that really
11 focuses in on these cases, is that right?
12 A. Yes, sir.
13 Q. In fact, the DA who does those cases does nothing but
14 sexual assault type cases, is that a fair statement?
15 A. They have got it split down to where they handle
16 robberies, rapes, and --
17 Q. Crimes against persons?
18 A. Yes.
19 Q. Now, in the police department codes, it's calls for
20 service by year, month, date and time in military time, is that
21 right?
22 A. Yes, sir.
23 Q. Now, you got your incident report there with you?
24 A. Yes, sir.
25 Q. The complaint number for this incident is 940325060200,
211
1 is that right?
2 A. That's correct.
3 Q. And that means that a call for service went out on
4 March 25th, '96 at 6:02 a.m.?
5 A. Yes, sir.
6 Q. And 00 means that was the first call for service during
7 this period of time, is that right?
8 A. Yes, sir.
9 Q. And 01 would be the second call for service, is that
10 right?
11 A. In that one-minute time frame.
12 Q. And Mark was arrested March 25th, '94?
13 A. Uh-huh.
14 Q. And after the case -- after that, you took the rape kit,
15 had it analyzed?
16 A. Just various forms of it. It was preliminary tests,
17 yes, sir.
18 Q. Semen stains sent to crime lab?
19 A. When we sent the rape kit up, that's what was analyzed.
20 Q. And in the crime lab, there is a serologist that does
21 blood work up there, is that right?
22 A. Yes, sir.
23 Q. Took the statements from the witnesses?
24 A. Yes, sir.
25 Q. Statements of Mr. Barnette?
212
1 A. Uh-huh.
2 Q. Statement from Ms. Chambers?
3 A. Yes.
4 Q. And you also interviewed her mom, Ms. Price, didn't you?
5 A. Yes, sir, I think there is a statement in there from
6 her, yes, patrol officers did that.
7 Q. You took all of that information at the DA's office?
8 A. Yes.
9 Q. What is the meaning, Investigator Brandon, when they
10 reject a case in your experience?
11 A. In my experience, it does not mean that it did or did
12 not happen, but that for some reason there may not be enough
13 there for a jury of 12 people to all decide on the same thing.
14 Q. The DA decides not to even prosecute the case, correct?
15 A. Yes, sir.
16 Q. Even to take it before a jury, right?
17 A. Right.
18 Q. In fact, this case was dismissed before the preliminary
19 hearing, wasn't it?
20 A. Yes, sir.
21 MR. LAUGHRUN: Approach the witness, Your Honor?
22 THE COURT: Yes, sir.
23 BY MR. LAUGHRUN:
24 Q. I will ask you, Investigator Brandon, to look at
25 Defendant's Exhibit 58, and ask you if that's a dismissal of
213
1 this complaint number we talked about?
2 A. Yes, sir, it is.
3 Q. Defendant's Exhibit 48 filed April 4th, '96 -- '94, I'm
4 sorry?
5 A. Yes, sir.
6 Q. Signed by David P. Maloney?
7 A. That's right.
8 Q. Who is a member of the DA's office who has been there
9 for at least 15 years?
10 A. Yes, sir, he is.
11 Q. Senior member in their office?
12 A. That's correct, yes. He is over their property crimes
13 unit.
14 Q. Now, the complaint number you have on there, let me ask
15 you to look at what has been introduced as Defense Exhibit 18, a
16 bunch of calls for service record. Let me ask you, as an
17 investigator, you know if you give the police department an
18 address, you can find out how many calls for service went to
19 that address, can't you?
20 A. Yes, sir, you sure can.
21 Q. I ask you to look at what has already been introduced as
22 Defendant's Exhibit 18, and ask you to look at that and ask you
23 if that appears to be a list of calls for service to 3413 West
24 Boulevard?
25 A. Yes, sir.
214
1 Q. And I ask you to look on there and see if you see this
2 incident report, 940325060200?
3 A. It's not on here, because it was generated somewhere
4 else.
5 Q. I will ask you if there was a call for service on
6 3-25-94 where a unit went out to the house?
7 A. Yes, sir.
8 Q. And that would be probably in reference to this same
9 complaint number, wouldn't it?
10 A. It is, it's -- this would be in reference to the crime
11 scene unit responding out to that location to process the scene.
12 Q. And then right above that, there is another call for
13 service on March 25th, '94, is that right?
14 A. That's correct, sir.
15 Q. So on two occasions in '94, the Charlotte Police
16 Department knew where 3413 West Boulevard was located, is that a
17 fair statement?
18 A. That's correct, sir.
19 Q. Okay. And you also --
20 A. Individual officers responding there would know where
21 it's at. You said Charlotte Police Department.
22 Q. Right, the individual officers in that unit, correct, or
23 in that area?
24 A. Yes, sir.
25 Q. And if somebody wanted to know where 3413 West Boulevard
215
1 was, you could punch it in the computer and find out, couldn't
2 you, or y'all have got a map?
3 A. We have got maps and things like that. We have got help
4 finder buttons on the computers that will -- if you are looking
5 for certain locations, but it doesn't narrow in on a particular
6 house.
7 Q. If somebody calls in and says that 700 West Trade
8 Street, which is the courthouse, the state courthouse location,
9 calls your office and says, does that address exist, you could
10 tell them whether it existed or not or whether the police have
11 answered any calls there before, couldn't you?
12 A. Yes, sir.
13 Q. Now, in regard to this incident, you had -- Mark signed
14 a consent to search, is that right?
15 A. Yes, sir.
16 Q. A house?
17 A. That's correct.
18 Q. Didn't have to?
19 A. No, sir, he didn't.
20 Q. But he did?
21 A. Yes, sir.
22 Q. And I will ask you, do you have that consent to search
23 with you?
24 A. Yes, I do.
25 Q. Okay.
216
1 MR. LAUGHRUN: Approach the witness, Your Honor?
2 THE COURT: Yes, sir.
3 BY MR. LAUGHRUN:
4 Q. Does this appear to be that document, Investigator
5 Brandon, marked as Defendant's Exhibit 50?
6 A. Yes, sir, it is.
7 Q. Signed by him?
8 A. That's correct.
9 Q. And when he gave you the statement that you told members
10 of the jury about, he didn't have a lawyer with him?
11 A. No, he didn't.
12 Q. Didn't ask for a lawyer, did he?
13 A. No, sir.
14 Q. And if he did, one would have been provided for him at
15 no charge to him, is that right?
16 A. Yes, sir.
17 Q. Now, when you investigated this incident, when you
18 talked to Ms. Chambers, you did not know originally, did you
19 not, or did you, that she had been to a motel the day earlier
20 with the defendant, Mark Barnette?
21 MR. CONRAD: Objection, mischaracterization of the
22 evidence.
23 THE COURT: Overruled, go ahead.
24 BY MR. LAUGHRUN:
25 Q. Or did you know that?
217
1 A. I did not know it until I spoke with Mr. Barnette. I
2 didn't deal with the victim as much, Investigator Grau did.
3 Q. When you found that out, she was confronted with that,
4 is that correct?
5 A. Yes, sir.
6 MR. LAUGHRUN: Thank you, Judge.
7 THE COURT: Redirect?
8 REDIRECT EXAMINATION
9 BY MR. CONRAD:
10 Q. Investigator Brandon, the exhibit that defense counsel
11 showed you about calls for services, the entries that are shown
12 on that printout are when someone would call for service, right?
13 A. Yes, sir.
14 Q. It doesn't necessarily reflect if a patrol car went out
15 to a call, not in response to a call for service, but just went
16 out to a location for some other reason?
17 A. If either the call generated from the residence to the
18 police department and we responded, or if an officer was doing
19 something and went to that location and generated the numbers
20 themselves, it would show up just like that right there. So
21 some of those calls could be where a police officer went out
22 there and generated those numbers, as supposed to the individual
23 from home calling.
24 Q. And a police officer could go out there without
25 generating numbers, isn't that correct?
218
1 A. Yes, sir, yes sir.
2 MR. CONRAD: That's all I have.
3 THE COURT: Thank you, sir.
4 MR. LAUGHRUN: May I, Judge?
5 THE COURT: All right, one more.
6 RECROSS-EXAMINATION
7 BY MR. LAUGHRUN:
8 Q. To serve a warrant, Investigator Brandon, if they went
9 out there looking for someone, it would be registered on there,
10 wouldn't it?
11 A. Yes, sir, it should be.
12 MR. LAUGHRUN: Okay, thank you, sir. That's all.
13 THE COURT: Thank you, sir.
14 Members of the jury, we will take a recess at this time
15 for lunch. Do not discuss the case among yourselves or anyone
16 outside of the courtroom. Would 2:00 o'clock rush you too
17 much? 2:00 o'clock, come back at 2:00 o'clock, please.
18 (The jury left the courtroom.)
19 MR. LAUGHRUN: Judge, if I may while the jury is out, at
20 the bench we asked Your Honor for a continuing objection to the
21 entire matter dealing with Ms. Chambers that were not in the,
22 what I call the death notice. We had a conference with Your
23 Honor, Your Honor overruled that objection. You've given us a
24 continuing objection to those matters, and I would like the
25 record to reflect that.
219
1 We also approached the bench and asked Your Honor to
2 exclude any information concerning the arrest information,
3 arrest affidavit that W.T. Brandon testified about. At the
4 bench, Your Honor overruled that objection. And we also
5 objected to the information concerning the rape kit, et cetera,
6 crime lab information. We had a bench conference about that,
7 and Your Honor, after discussion with Mr. Conrad and myself and
8 Mr. Williams, overruled that objection, if Your Honor please.
9 We again object to those, if Your Honor please.
10 MR. CONRAD: Your Honor, a matter did come up at the
11 bench conference with respect to what was provided the defense
12 counsel in discovery, and I indicated to the Court that
13 everything that this officer was testifying about with respect
14 to the exhibits he identified and introduced and the information
15 contained in those exhibits was produced in discovery. And the
16 government has produced thousands of pages of discovery in this
17 case, and included in that were all statements, supplement
18 reports with respect to the incidents that Alesha Chambers
19 testified to concerning the testimony -- concerning the Alesha
20 Chambers incidents.
21 MR. LAUGHRUN: Judge, there was a rape kit provided to
22 us, a statement. Everything Mr. Conrad said is correct except
23 we did not get a lab report, and I don't believe they have one,
24 we didn't get one, and that's what we objected to about the
25 officer concluding that there was semen found on some garments,
220
1 et cetera, and that was the basis for the objection.
2 THE COURT: Well, he's not -- do you want to say
3 anything? He is not trying to prove actually having a rape at
4 this time, overruled.
5 Let's go, recess until 2:00 o'clock.
6 (Lunch recess.)
7 THE COURT: Ready for the jury? Call the jury.
8 (The jury returned to the courtroom.)
9 THE COURT: All right, ladies and gentlemen, I hope
10 everyone had a nice lunch. Nice and cool outside?
11 JUROR: Yes, the wind is cold.
12 THE COURT: Pardon?
13 JUROR: The wind is cold.
14 THE COURT: I see. Call your next witness.
15 MR. CONRAD: United States would call Debra Adamo.
16 DEBRA ADAMO,
17 being first duly sworn, was examined and testified as follows:
18 DIRECT EXAMINATION.
19 BY MR. CONRAD:
20 Q. Would you state your name for the jury and spell your
21 last name for the court reporter?
22 A. Debra Adamo, last name A D A M O.
23 Q. Ms. Adamo, how are you currently employed?
24 A. I'm employed with the FBI in Phoenix, Arizona.
25 Q. And in what capacity?
221
1 A. I am an agent in the Domestic Terrorism Squad.
2 Q. In November of 1993, how were you employed?
3 A. I was a police officer with the Charlotte Police
4 Department.
5 Q. And when did you leave the Charlotte Police Department
6 to join the ranks of the FBI?
7 A. June of '96.
8 Q. And how long have you been a police officer prior to
9 becoming a federal agent?
10 A. About 6 years ago.
11 Q. And in what capacity were you employed by the Charlotte
12 Police Department?
13 A. I was a patrol officer for about four years, then I
14 became a detective and worked in burglaries, strong arm
15 robberies for about two years.
16 Q. And in November of '93 what were your duties?
17 A. Office patrol officer in the Adam II district.
18 Q. November 9th did you respond to a call for your
19 assistance at some place on West Boulevard?
20 A. Yes, I was.
21 Q. Go ahead and relate what call you got and what you did
22 as a result of the call?
23 A. I was called by Officer Joy to look for two individuals
24 at a residence off of West Boulevard, a Mr. Mark Barnette and a
25 Ms. Alesha Chambers.
222
1 Q. And what did you do as a result of getting that call?
2 A. I went to the residence, knocked on the door, two female
3 individuals were there, I spoke to the mother of Mr. Mark
4 Barnette, I asked her if Mark and Alesha were at her residence,
5 she said that Mark was home but Alesha who was his girlfriend
6 she, did not believe she was there at the residence.
7 Q. After you had this -- where were you when you had the
8 conversation with the mother of Mark Barnette?
9 A. I was at the entrance of their home, it was a -- I don't
10 know if it was a side or front door but there was -- it was just
11 within the doorway.
12 Q. And what did you do next?
13 A. As I spoke to her she was backing up into the home, and
14 I was following her into the home. There was like a little
15 walkway that opened up into a larger room. As she came out of
16 that walkway into the room, she said, what are you doing here?
17 And I looked to the side and I saw Ms. Chambers sitting in a
18 chair up against the wall in a room.
19 Q. And describe the room, if you would?
20 A. It was very dark, it was cool in the home and there was,
21 I believe, a doorway at the back -- on the back wall of the room
22 that was open, and she just sitting in a single chair against
23 the wall.
24 Q. And when the mother that you talked to said, what are
25 you doing here, where was she looking?
223
1 A. She was looking at Ms. Chambers.
2 Q. And did you look at Ms. Chambers?
3 A. Yes, I did, and Ms. Chambers was looking at me, but not
4 saying anything.
5 Q. Describe what she looked like?
6 A. She was wearing shorts, she had no shoes on, just had a
7 pair of white socks on.
8 Q. And what happened at that point?
9 A. I asked Ms. Chambers if she wanted to come with me, she
10 replied yes, and we walked out of the door.
11 Q. And what happened next?
12 A. I asked Ms. Chambers what had happened, she told me that
13 Mr. Barnette had taken her there against her will, and that he
14 had ran out the back door whenever we came to the residence.
15 Q. Now, when you took her from that room inside the house
16 outside, what was she wearing?
17 A. She was still wearing her shorts and nothing but
18 her -- the white socks, she had no shoes on.
19 Q. What kind of night was it in November of 199 --
20 A. It was very cool, very cold.
21 Q. Did you have any other interaction with the mother that
22 you talked to at the front door when you first arrived?
23 A. Yes, I asked as I was leading Ms. Chambers to my
24 vehicle, I asked her why she didn't say anything while she was
25 in the house, she was just quiet. And she said that she was
224
1 afraid of the mother because they had taken drugs there or they
2 took drugs there. And I -- as I was putting her in the car and
3 she was seated in the car, the mother became combative towards
4 her, and started saying, get her out of here, she isn't invited,
5 I don't want her here.
6 Q. Now, did you ever find the defendant, Mark Barnette,
7 there at that residence?
8 A. No, we did not.
9 Q. Now, the mother indicated that he was there, did you see
10 whether or not anybody else was in the room other than the
11 people you have testified about?
12 A. I'm sorry --
13 Q. Strike that. When you were inside the house and looking
14 around, did you notice a sliding door anywhere?
15 A. Yes, the door that was in the room, I believe that it
16 was a sliding glass door.
17 Q. Did you see the defendant at any time when you were
18 inside the house?
19 A. No, I did not.
20 Q. What did you do after you got Alesha Chambers in your
21 patrol car?
22 A. I had told other officers in the area to assist in
23 looking for him because of the way that the mother was acting,
24 yelling for us to get her out of there. I went ahead and drove
25 her off as the other officers were circulating in the area.
225
1 Q. And what did you do next?
2 A. I drove her back up West Boulevard, we stopped at a
3 clothes business in the parking lot. I wanted to take her
4 statement there instead of taking her back to where she was
5 staying as I felt that her family in trying to console her might
6 interrupt the process of me trying to get a good statement from
7 her.
8 Q. And so did you stop and take a statement?
9 A. Yes, I did.
10 Q. What did you do next?
11 A. I drove her back to the residence where she was at to
12 where officer Joy was at on Watson Road.
13 Q. Okay, and what happened when you got there?
14 A. Officer Joy had told me that Mr. Barnette was calling
15 the house, we told her or we asked her to go ahead and answer
16 the phone if he called again. In an attempt to try to get him
17 to come out from wherever he was so that we could arrest him.
18 Q. Did you notice anything about the apartment when you
19 went inside?
20 A. Yes, there was damage to the door, the phone had been or
21 the phone cord had been pulled out of the wall, I asked them if
22 they could -- I believe it was the same phone -- if they could
23 hook that back up so that if he did call again I could listen to
24 the conversation in case he said anything incriminating.
25 Q. Now, did that happen?
226
1 A. Yes, it did.
2 Q. Go ahead and tell the jury about that.
3 A. When he called and she answered the phone, he was
4 telling her that he cared about her, making statements such as
5 you know I wouldn't hurt you. Then he started crying, crying
6 emotionally uncontrollably, type crying. She asked him, well,
7 why don't you meet me somewhere. He then stopped crying very
8 abruptly and asked her, you know, why are you charging me or are
9 you still charging me. Asked her why she told them, meaning the
10 police, everything, wanted to know why she told us that he had
11 kicked in the door, because he had told his mother that he would
12 pay for the door.
13 Q. And what was his tone of voice while he was saying these
14 things?
15 A. When he had stopped crying, his voice completely
16 changed. He spoke very clearly, very deliberately, as if he had
17 not been crying just those few moments earlier.
18 Q. Were you successful in getting the defendant to meet Ms.
19 Chambers anywhere?
20 A. No, we were not.
21 Q. Did you make any other effort that night to arrest the
22 defendant?
23 A. We had set up a perimeter around the home hoping that he
24 would try to go back home, and we were unable to locate him that
25 night, but we did have officers out looking for him.
227
1 Q. Agent Adamo, let he approach and hand you what has been
2 marked for identification as Government's Exhibit 57 and ask you
3 if you recognize that exhibit?
4 A. Yes, I do.
5 Q. Tell me what Government's Exhibit 57 is.
6 A. This is the statement that I wrote in reference to the
7 things that I had done that night in reference to this case.
8 Q. Turning your attention to the fourth page of that
9 exhibit, do you recognize what is contained in page four of that
10 exhibit?
11 A. Yes.
12 Q. What is contained on page four?
13 A. It is page one of four that is Alesha Chambers'
14 statement that I took from her.
15 Q. And is that a four page statement?
16 A. Yes, it is.
17 Q. And did you write that statement?
18 A. Yes, I wrote it for Ms. Chambers as she spoke to me, and
19 I tried to write it down as she said it.
20 Q. And that's the convenience store at West Boulevard after
21 you removed her from 3413 West Boulevard?
22 A. Yes. I'm not sure whether it was a convenience store,
23 it was some type of business that had been closed for the
24 evening.
25 Q. Did you have her read it as well?
228
1 A. What I did was I read it back to her and she agreed that
2 yes, that was an accurate statement, and I had her sign it.
3 Q. So you received information from her, reduced it to
4 writing, read it back to her and had her sign it; is that
5 correct?
6 A. Yes, sir.
7 MR. CONRAD: Your Honor, move admission of Government
8 Exhibit 57.
9 THE COURT: Let it be admitted.
10 MR. LAUGHRUN: Your Honor we object to the relevance.
11 THE COURT: All right, sir. Overruled.
12 MR. CONRAD: That's all I have, Judge.
13 THE COURT: Cross.
14 CROSS-EXAMINATION.
15 BY MR. LAUGHRUN:
16 Q. Agent Adamo, when you said the police set up a
17 perimeter, that involves going out, and correct me if I'm wrong,
18 putting officers around various points so if someone comes and
19 goes on the premises the police will find out who they are, is
20 that correct?
21 A. They wouldn't stop everybody that was in that area, but
22 they would be on the look out for the individual we were looking
23 for or someone that would fit that description.
24 Q. The target perimeter would be 3413 West Boulevard, is
25 that correct?
229
1 A. Yes, sir, that would be.
2 Q. In this general area?
3 A. If I remember correctly, it's on the corner of West
4 Boulevard and Billy Graham.
5 Q. Right across from Boulevard Homes?
6 A. I believe so.
7 Q. And when you were a patrol officer you worked Adam II,
8 is that correct?
9 A. Yes, at that time I was working Adam II.
10 Q. And that was the Adam II service area, is that right?
11 A. Yes, sir.
12 Q. In November of 1993, the police department and Adam II
13 knew where 3413 West Boulevard was, is that a fair statement?
14 A. Yes.
15 Q. Now, you went out to the scene, was E.A. Joye, that's
16 Beth Joye, is that right, she was also involved in this, is that
17 right?
18 A. Yes. I'm not certain about her first name, but I just
19 refer to her Officer Joye.
20 Q. You recognize her initials E.A. Joye?
21 A. That's probably correct.
22 Q. And she had some involvement in this case, too?
23 A. Yes, sir, she did.
24 Q. You did the Chambers side of the case and she did the
25 Barnette side of case, would that be a fair statement?
230
1 A. No, she was at the residence where the kidnapping
2 occurred, she was the officer in charge of the call and she
3 merely requested that other officers respond to Mr. Barnette's
4 residence to look for Ms. Chambers.
5 Q. Are you aware -- did you see any reports that she took
6 in this case?
7 A. I am certain that she wrote a statement.
8 Q. And you are aware, are you not, that Mr. Barnette was
9 convicted of nonfelonious breaking and entering in this case,
10 are you aware of that?
11 A. I know that he was convicted of something in the case.
12 Q. Not convicted of kidnapping, you are aware of that?
13 A. I cannot remember the outcome of that trial.
14 MR. LAUGHRUN: Thank you, Judge Potter, that's all.
15 THE COURT: Redirect.
16 MR. CONRAD: No, sir.
17 THE COURT: Thank you, ma'am, come down. Call your next
18 witness.
19 MR. WALKER: The government would call officer Pam
20 Richardson.
21 PAMELA RICHARDSON,
22 being first duly sworn, was examined and testified as follows:
23 DIRECT EXAMINATION.
24 BY MR. WALKER:
25 Q. State your name and tell us what you do for a living?
231
1 A. Pamela Richardson, crime scene search officer, and I
2 work at the police department.
3 Q. Pursuant to your duties as a crime scene search officer,
4 I want to turn your attention back to 1993. Were you also
5 employed with the police department as a crime scene search
6 officer back on, in particular, November 9th of 1993?
7 A. Yes, sir.
8 Q. Did you respond or were you directed to respond to take
9 some photographs of the doorway located at 2732 Watson Drive,
10 apartment 24, on that date?
11 A. Yes.
12 MR. WALKER: May I approach the witness, Your Honor?
13 THE COURT: Yes, sir.
14 BY MR. WALKER:
15 Q. Officer Richardson, I'm going to show you Government's
16 Exhibits 58 A, 58 B, 58 C, 58 D, 58 E, and 58 F, I will ask you
17 to flip through those if you would?
18 A. (Witness complies.)
19 Q. Those are photographs that you took, is that correct?
20 A. Yes, sir.
21 Q. And was that of the damage to the front door of the
22 location there at 3732 Watson Drive, apartment 24?
23 A. Yes, sir.
24 Q. And there are also photographs of a telephone and
25 telephone cord on the floor way, is that right?
232
1 A. Yes.
2 Q. Do those photographs fairly and accurately show the
3 damage to the doorway of that residence as well as the item that
4 you saw on the floor?
5 A. Yes, sir.
6 MR. WALKER: Your Honor, move admission of those
7 exhibits, 58 A, through 58 F.
8 THE COURT: Let them be admitted.
9 MR. WALKER: May I pass those to the jury Your Honor.
10 THE COURT: Yes.
11 MR. WALKER: I don't have any other questions of Officer
12 Richardson.
13 THE COURT: Cross.
14 CROSS-EXAMINATION.
15 BY MR. LAUGHRUN:
16 Q. You also investigated a call to 3413 West Boulevard two
17 years later, is that right, you investigated a shooting where
18 Mr. Barnette was shot by a young man named Don Barber?
19 A. I vaguely remember.
20 Q. If I show you your incident report would that refresh
21 your recollection?
22 A. Yes.
23 MR. LAUGHRUN: Approach the witness Your Honor.
24 THE COURT: Yes, sir.
25 BY MR. LAUGHRUN:
233
1 Q. I show you what I marked as Defendant's Exhibit 51 and
2 ask you if that appears to be a copy of your crime scene search
3 report for an incident on 3413 West Boulevard back on January
4 25th of '95?
5 A. Yes, sir.
6 Q. And again, Charlotte police calls for service are done
7 by complaint number?
8 A. Yes, sir.
9 Q. Complaint number on that is 950125130701?
10 A. Yes, sir.
11 Q. Okay. That appears to be where you went out there and
12 did what is called a GSR, is that right?
13 A. Yes, sir.
14 Q. And that's a gun shot residence test?
15 A. Yes, sir.
16 Q. That's a test you run to see if barium antimony and one
17 other?
18 A. Lead.
19 Q. Are involved with someone involved in a shooting, is
20 that right?
21 A. Yes, sir.
22 Q. And you did that?
23 A. Yes, sir.
24 Q. I will ask you to look at Defendant's Exhibit 52.
25 MR. LAUGHRUN: Approach the witness Your Honor.
234
1 THE COURT: Yes.
2 BY MR. LAUGHRUN:
3 Q. I will ask you if this appears to be an incident report
4 with the same complaint number as the one you responded to?
5 A. Yes, sir.
6 Q. And your name is on the bottom too as the crime scene
7 search tech?
8 A. Yes.
9 Q. And that was the incident of breaking and entering and
10 shooting where Mr. Barnette was the victim, is that correct?
11 A. Yes, sir.
12 Q. Thank you, ma'am.
13 MR. LAUGHRUN: I believe that's all, Judge Potter.
14 THE COURT: Redirect.
15 MR. WALKER: No questions.
16 THE COURT: Thank you, ma'am, come down, call your next
17 witness.
18 MR. WALKER: Your Honor the government would call
19 Officer Donna Burgess.
20 DONNA BURGESS
21 being first duly sworn, was examined and testified as follows:
22 DIRECT EXAMINATION.
23 BY MR. WALKER:
24 Q. Ma'am, would you state your full name and tell us what
25 you do for a living?
235
1 A. Donna Dobson Burgess, and I work for the Charlotte
2 Police Department.
3 Q. How long have you been a police officer, Officer
4 Burgess?
5 A. 10 years.
6 Q. I want to turn your attention back to November the 12th
7 of 1993, were you employed as a police officer on that
8 particular day?
9 A. I was.
10 Q. Did you respond to a call concerning a complaint --
11 complaining person at -- the location of the offense being 200
12 Exmore Street in Charlotte?
13 A. Yes.
14 Q. Is that near a Bojangles restaurant there?
15 A. It is.
16 Q. Were you working and were you in uniform as you are
17 today?
18 A. I was.
19 Q. And were you in a marked Charlotte Police Car?
20 A. Yes, sir, I was.
21 Q. Did you respond to that call and go to that location?
22 A. Yes, sir, I did.
23 Q. When you got there, tell the members of the jury what
24 you saw?
25 A. There were several people standing around, there was a
236
1 female there, there was a male subject that was lying on the
2 street. I talked to the victim, talked to her about what had
3 happened. She told us what had happened and talked to several
4 other witnesses and also got what had happened from them.
5 Q. When you say you talked to the victim, was that a young
6 lady named Alesha Chambers?
7 A. Yes, sir, it was.
8 Q. What did she tell you happened?
9 MR. LAUGHRUN: Objection, ask for an instruction on
10 corroboration --
11 THE COURT: I'm sorry, Mr. Laughrun, I can't hear you.
12 MR. LAUGHRUN: Objection and ask for an instruction on
13 corroboration.
14 THE COURT: Okay. The jury will consider this testimony
15 as corroborating the testimony of the other officers, if you
16 find that it does.
17 BY MR. WALKER:
18 Q. You can answer the question. What did Alesha Chambers
19 tell you when you arrived at that location?
20 A. She stated that she had gotten off of a bus and that --
21 told us the male's name, he had came and came up behind her, put
22 a knife to her back and forced her to go with him back behind up
23 on Exmore, forced her at knife point, stated that he said if she
24 didn't that he would kill her.
25 Q. You indicated that you -- that there were other people
237
1 there that you determined were witnesses to that incident, is
2 that correct?
3 A. Yes, sir, there were several people that witnessed what
4 had happened, we took statements from all of those people that
5 were there.
6 Q. You were working that particular incident, was Officer
7 Umplit also working that particular incident?
8 A. Yes, there were several. The call came out as an
9 emergency call which means that a number of officers would be
10 dispatched, so we had quite a few officers out at the scene.
11 Q. And was there an Officer Russell that responded to the
12 call?
13 A. Yes.
14 MR. WALKER: May I approach the witness, Your Honor.
15 THE COURT: Yes.
16 BY MR. WALKER:
17 Q. Officer Burgess let me show you Government Exhibit 59,
18 it consists of four pages. Will you take a look at Government's
19 Exhibit 59 and indicate what that is if you know?
20 A. This is a case report. It was taken on the day that
21 this incident occurred, the document being a case report.
22 Q. How soon after you arrived at the location did you
23 determine the suspect's name?
24 A. Immediately.
25 Q. And did you list that on your report there as Mark
238
1 Barnette?
2 A. Yes, I did.
3 Q. And you indicated, if I may turn back to page one, when
4 you filled out the first page of Government's Exhibit 59, when
5 was it that you filled out that information?
6 A. I filled it out the same day in which it happened.
7 Q. Okay. And referring your attention to page 3 of your
8 report, it's entitled -- the top of page is entitled "suspect
9 witness supplement," and then there are several pages on the
10 form. Explain how you use that particular page?
11 A. This is a suspect witness form, we list the suspect at
12 the top, there is a listing of the suspect and the victim, and
13 at the bottom we list witnesses who could testify about the
14 facts about the case.
15 Q. And you listed the defendant in this case as the
16 suspect?
17 A. Yes, sir.
18 Q. Is that the person that you said that you saw on the
19 ground when you first arrived?
20 A. Yes.
21 Q. And then you also listed two other witnesses, Charlie
22 Kirschbaum, is that correct?
23 A. Yes, sir.
24 Q. And you indicated he saw the incident occur?
25 A. Yes, sir.
239
1 Q. And then a Casey McCrickard who you also indicated
2 observed the incident, is that right?
3 A. Yes, sir.
4 Q. And now returning -- you indicated that you took some
5 statements from various witnesses, did you talk to a person
6 named Kevin Daley out there at the scene?
7 A. Yes, sir, I did.
8 Q. And did you determine that he was a witness also to the
9 incident?
10 A. Yes, we took a statement from him also.
11 Q. Explain to the members of the jury how it is that you
12 took a statement from Mr. Daley?
13 A. We normally, when we get a statement from someone, would
14 like to get it in their own handwriting and that's what we did
15 in this case. If the person can write legible and can read, we
16 like for them to put that down in their own words. We witness
17 them taking the statement, they sign it and date it, and we sign
18 it at the bottom of the report indicating that we witnessed the
19 statement being taken.
20 Q. Referring your attention then to this statement, you
21 watched Kevin Daley give a statement, is that correct?
22 A. Yes.
23 Q. And you signed the bottom of the statement in the method
24 that you just indicated?
25 A. Yes.
240
1 Q. Tell the members of the jury what this witness Kevin
2 Daley told you he saw?
3 MR. LAUGHRUN: Objection, Judge.
4 THE COURT: I'm sorry.
5 MR. LAUGHRUN: Objection to hearsay.
6 THE COURT: Well, overruled.
7 THE WITNESS: You want me to read the statement.
8 BY MR. WALKER:
9 Q. Please do?
10 A. I was standing at the rear of the business when I heard
11 the manager from Bojangles running for someone to call the
12 police, when I looked over that way I saw a black male holding a
13 knife to the throat of a black female, I went into the back of
14 the business and told a coworker to call 911 and he came back
15 out with a stick at this time. The disturbance moved behind our
16 business on Exmore, I approached the suspect and tried to talk
17 to the suspect but the suspect moved the knife to her stomach
18 and told the witnesses to back off. An employee from Bojangles
19 took the stick from me and challenged the suspect. The guy from
20 Bojangles raised the stick and the suspect moved away. Female
21 victim took the opportunity and got away from the victim. After
22 this suspect lunged at the Bojangles employee with the knife.
23 The suspect -- the subject defended himself and struck him
24 knocking the knife out of his hand. At this time myself and the
25 employee from Bojangles tackled him and held him for police.
241
1 Q. Okay. And that was the last page of the item that I
2 gave you marked as Government's Exhibit 59, is that correct?
3 A. Yes.
4 MR. WALKER: Move admission of Government's Exhibit 59
5 including the statement that she just read.
6 MR. LAUGHRUN: Renew our objection.
7 THE COURT: Okay.
8 MR. WALKER: May I pass this to the jury Your Honor.
9 THE COURT: Yes.
10 MR. WALKER: I don't have any other questions.
11 THE COURT: Cross.
12 CROSS-EXAMINATION.
13 BY MR. LAUGHRUN:
14 Q. Good afternoon?
15 A. Hello.
16 Q. When you took the report, the Charlotte police report is
17 coded by complaint number --
18 A. Yes.
19 Q. Do you have a copy of the exhibit that Mr. Walker asked
20 you about in front of you?
21 A. No, I do not.
22 Q. I believe that was Government's Exhibit 59, let me ask
23 you to take a look at this copy.
24 MR. LAUGHRUN: Approach the witness, Your Honor.
25 THE COURT: Yes, sir.
242
1 BY MR. LAUGHRUN:
2 Q. I ask you if what Mr. Walker showed you, Government
3 Exhibit 59, does that appear to be the same exhibit section
4 except for my highlight on it?
5 A. Yes, sir.
6 Q. That's just the first page of it. Okay. And the
7 complaint number on there is what?
8 A. 931112161902.
9 Q. Now, that's unique to this case, is that right?
10 A. Yes.
11 Q. I want to show you -- the defendant was charged with
12 kidnapping in the case?
13 A. Kidnapping and ADW, assault with a deadly weapon
14 involving a knife.
15 Q. I want you to look at criminal justice -- Mecklenburg
16 County Criminal Justice System process that shows that that
17 case -- ask you what the case number is -- complaint number for
18 that document, government's -- Defendant's Exhibit 53 A, same
19 complaint number as your incident?
20 A. Yes.
21 Q. And that was voluntarily dismissed, was it not?
22 A. That's what it indicates, that it was voluntarily
23 dismissed.
24 Q. Ask you to look at the another print out, same type of
25 document, Defendant's Exhibit 53 B, ask you if that appears to
243
1 be the same complaint number for the assault charge, same
2 complaint number, I'm sorry?
3 A. It's only showing an issue date, but it has an issue
4 date of 11-12-93.
5 Q. Same date as this issue date?
6 A. Uh-huh.
7 Q. And it shows that the defendant was convicted and got 13
8 days credit for time served, is that right?
9 A. Yes.
10 Q. And those are the same incidents that you testified
11 about, is that right?
12 A. Yes.
13 MR. LAUGHRUN: I believe that's all, thank you.
14 THE COURT: Redirect.
15 MR. WALKER: No, Your Honor.
16 THE COURT: Thank you, call your next witness.
17 MR. WALKER: Your Honor, the government would call Casey
18 McCrickard.
19 CASEY MCCRICKARD,
20 being first duly sworn, was examined and testified as follows:
21 DIRECT EXAMINATION.
22 BY MR. WALKER:
23 Q. Ma'am, if you would, have a seat and tell the members of
24 the jury your full name and spell your last name?
25 A. Casey McCrickard.
244
1 Q. Ms. McCrickard, what do you have currently do for a
2 living?
3 A. I'm a police officer with the town of Chapel Hill.
4 Q. I want to take -- how long have you been a police
5 officer in Chapel Hill?
6 A. For approximately three and a half years.
7 Q. I want to take you back to November 12th of 1993, back
8 on that particular day in that year were you living here in
9 Charlotte, North Carolina?
10 A. Yes, I was. I was going to school here at UNC
11 Charlotte.
12 Q. Were you working somewhere while you were going to
13 school at UNC Charlotte?
14 A. Yes, I was employed with T.K. Tripps waiting tables
15 there.
16 Q. And T.K. Tripps is that located on Woodlawn Road in
17 Charlotte?
18 A. Yes, it is.
19 Q. Is it near a Bojangles restaurant?
20 A. Yes, it was beside it.
21 Q. I want to take your attention to an incident that
22 occurred on that particular November 12th day in 1993, did you
23 become aware of something happening outside of the restaurant
24 that you were working inside of?
25 A. Yes.
245
1 Q. Tell the members of the jury how you became aware of
2 that and what happened.
3 A. I had just come to work, just been there a short while.
4 We were getting ready to set up for dinner, and I was in the
5 kitchen. And our kitchen manager came in from the back parking
6 lot to the rear door, and he said pretty complacently, I need
7 you to call 911. And I thought he was kidding. And I said,
8 what are you talking about, why? And he said, no, I'm serious,
9 there is a guy back here with a knife to a girl's throat.
10 And at that point, another employee heard what he said
11 and she began calling 911. At that time he was unscrewing the
12 broom mop like one of those big industrial brooms, was
13 unscrewing the handle from the broom and headed out to the back
14 parking lot. And I followed him up, I and a couple other
15 employees followed him out to the rear of the parking lot.
16 Q. The person that you say that had the broom handle, that
17 was the person that told you to call 911?
18 A. Yes.
19 Q. And when he went out with the broom handle and you
20 followed behind him?
21 A. Yes.
22 Q. What did you see once you started following behind him,
23 what did you see?
24 A. There is a road behind our parking lot, a residential
25 area backs up to it, it's probably about 60 or 70 feet from the
246
1 building. There was a black male with a black female diagonally
2 to my left on the road, and he had the woman pulled up over his
3 right shoulder and had his arm around her, and she was visibly
4 upset, kicking and screaming. And down the road a ways were
5 some employees from the Bojangles, I recognized them from their
6 uniforms. And they were confronting the man.
7 Q. Okay. Did you move closer to the man that you saw with
8 the woman at that point?
9 A. Yes. Kevin Daley, the kitchen manager, he had the broom
10 stick, and he also walked up towards the road, and the man
11 became agitated, and we noticed that he had a knife, and they
12 were confronting him. And I assume he became distracted by all
13 of the people and the woman broke free from him.
14 Q. Describe the knife that you saw the man have that you
15 say you saw, describe it.
16 A. It was a long kitchen knife as opposed to like a pocket
17 knife.
18 Q. And what was he doing with the long knife?
19 A. At different points he had it down by his side or
20 towards her neck.
21 Q. When you say this lady broke free from him, what if
22 anything did you see the man do with the knife at that point?
23 A. After she broke free, she ran towards someone at our
24 parking lot, and after that, the suspect had the knife and was
25 going towards Mr. Daley. He was in front since he had the
247
1 broom, and he came running towards him swinging the knife and
2 jabbing it towards Mr. Daley. And while he was doing that, Mr.
3 Daley was walking backwards and was hitting him with the broom
4 in defense and struck him several times. The broom actually
5 broke over him before the knife dropped. And once the knife
6 dropped down, Mr. Daley and several of the employees from
7 Bojangles jumped on top of him and wrestled him to the ground
8 and subdued him until the police showed up.
9 MR. WALKER: May I approach the witness, Your Honor.
10 THE COURT: Yes, sir.
11 BY MR. WALKER:
12 Q. I'm going to show you Government's Exhibit 60 and I'm
13 going to ask you, did you give a statement to police about what
14 you had seen?
15 A. Yes, I did.
16 Q. Did they write that statement down or did you write that
17 statement down?
18 A. They wrote it down, I was sitting in the seat next to
19 him as he went over my statement and I confirmed that that was
20 what I observed.
21 Q. Okay. And then you signed the bottom of the statement,
22 is that correct?
23 A. Yes.
24 MR. WALKER: Your Honor, that's labeled as Government's
25 Exhibit 60 and I move that admission of that.
248
1 MR. LAUGHRUN: Objection to relevance.
2 THE COURT: Overruled.
3 MR. WALKER: Can I pass that to the jury, Your Honor?
4 THE COURT: Yes.
5 MR. WALKER: And I don't have any other questions.
6 THE COURT: Cross.
7 MR. LAUGHRUN: No questions.
8 THE COURT: Thank you, come down, call your next
9 witness.
10 MR. CONRAD: United States would recall Bob Allen.
11 MR. LAUGHRUN: Judge could we approach the bench before
12 we do that, briefly?
13 THE COURT: Yes.
14 (Bench conference not recorded.).
15 THE COURT: All right, Mr. Walker, I believe.
16 MR. CONRAD: Mr. Bob Allen.
17 THE COURT: Okay.
18 BOBBY G. ALLEN
19 being first duly sworn, was examined and testified as follows:
20 DIRECT EXAMINATION
21 BY MR. CONRAD:
22 Q. Sir, would you again tell the jury your name?
23 A. My name is Bobby G. Allen, and I go by Bob.
24 Q. Mr. Allen, you have previously testified concerning the
25 steps you took after learning of your son's disappearance in the
249
1 guilt phase of this trial. I want you now to tell the jury a
2 little bit about your son. I would like you to tell the jury
3 about what kind of relationship you had with your son, Donnie
4 Lee Allen, before his death?
5 A. Okay. Donnie was real close to the whole family really,
6 he was born prematurely, and we only had a slight chance for him
7 to live. But we had a close bond. I did things with him, we go
8 fishing, all of my boys and myself get together and go fishing,
9 I taught Donnie to hunt, he loved to hunt dear. The first time
10 I took him hunting was about age 10 or 11, and I had built a
11 stand up in the cedar tree. And I carried our lunch with us,
12 and I climbed the tree and had a rope with me, and I pulled my
13 rifle up, and then I told Donnie, I said climb up where Papa is,
14 and Donnie always called me Papa, all of the rest of the
15 children called me Daddy, Donnie called me Papa.
16 And he was afraid to climb, and I told him, I said,
17 well, take that rope, the loop of it and put it under your arms,
18 put it over your head and under your arm and I said I will guide
19 you as you come up and you won't fall. So he did that, and we
20 spent the better part of that day in the tree. Of course, we
21 didn't get any dear, but we had a good time together. And from
22 that point on he enjoyed hunting. He'd go hunting with his
23 brother-in-law, and then he would go by himself. And my wife
24 told me when we built down there that she would not have a dear
25 mounted on her wall. But when Donnie killed this 10-point buck
250
1 that he got, she said that you could put it anywhere you want
2 to.
3 Q. As a matter of fact there is a dear hanging in your
4 living room mounted on your loving room wall?
5 A. Yes, perfect mount.
6 Q. Did you ever do any other hobbies with your son?
7 A. Yes, Donnie loved to golf. He would go golfing with me,
8 we were members of the Cowens Ford Country Club up here on Lake
9 Norman, and we would go up there and play in the father son
10 tournaments, and very seldom we ever came in over second or
11 third. We he was a good golfer. And he also played on the golf
12 team at York, and he won the junior club championship in 1992,
13 and he got a golf scholarship and went to York Tech.
14 Q. Did you ever play horseshoes with him?
15 A. Pardon?
16 Q. Did you ever play horseshoes with him?
17 A. Yes, he would come in in the evenings, and he loved to
18 play games. After dark he would bring the Scrabble game or he
19 would pick up the chest game and we would play. And he would
20 come in in the afternoons and rest a little while, and he would
21 get up and say, old man, you want to get beat in a game of
22 horseshoes, and I'd said, you really think you can whip your
23 dad? And he said, well, I can try. So we go out and pitch
24 maybe a half dozen games of horseshoes, and he might beat me
25 once of the half dozen games. But we really enjoyed it.
251
1 Q. Since the time your son was murdered, did you ever play
2 horseshoes or go golfing or go hunting since that time?
3 A. I haven't pitched any horseshoes in the pit since Donnie
4 has been gone.
5 Q. Why is that?
6 A. I just don't have the heart to.
7 Q. Did you have any nicknames for your son?
8 A. Pardon?
9 Q. Did you have any nicknames for your son Donnie?
10 A. Well, his full name was Donald Lee, and I just called
11 him Donnie all the time. Some of the others, I think his
12 brother-in-law and his sister called him Leroy as a nickname.
13 Q. Now, did you have prior to his death, did you have plans
14 for him to live next to you?
15 A. Yes, he -- there was a piece of property that became
16 available that joins mine, and Donnie wanted to buy it. And he
17 wanted to put him a log house on it. And the gentleman that
18 owned the property came to our hose along about Christmas and
19 said that he planned on selling it, and he wanted to give us
20 first chance at it. So I went to the bank and borrowed the
21 money, and Donnie was to pay this back. And Donnie was killed
22 before he ever made the first payment.
23 Q. Did he ever talk to you about building a house there and
24 living next to you?
25 A. About what, sir?
252
1 Q. About building a house on that property and living next
2 to you?
3 A. Yes, he wanted to put a log cabin on that property
4 there, and it's a beautiful piece of property, has huge pecan
5 trees on it and has a ready dug well there that's been there for
6 years.
7 Q. Did you take pride in any of Donnie's work
8 accomplishments?
9 A. Very much so, I -- his supervisor at work called me one
10 day and told me he -- he said, Mr. Allen said, we are very
11 fortunate to have Donnie as an employee, and he said I'm not
12 telling you this just because he is your son, but he says, he is
13 the most mature 20 year old that I have ever seen.
14 Q. What kind of job did he have?
15 A. He worked for Jacobson Textron out here on Westinghouse
16 Boulevard, and he was a technician on these turf machines. He
17 work on machines that mowed the fairways and the lawns and the
18 greens also.
19 Q. And did he get any promotions that you were proud of
20 during the time he worked for Jacobson?
21 A. Yes, sir, he had a promotion, they sent him out to
22 Madison Wisconsin at the school, and he was advancing in his
23 knowledge and he got a promotion, and he got sizable raise that
24 he did not ever realize because it was to come out shortly after
25 he died.
253
1 Q. Now, you previously testified as to the steps that you
2 took to try to find your son prior to being notified that in
3 fact he had been killed, do you recall that testimony?
4 A. Yes, sir.
5 Q. Starting at the end of that testimony, will you tell the
6 jury what steps you took to deal with the fact that your son had
7 been killed and how you responded to the family?
8 A. Well, we were terribly worried about him missing, and
9 after he didn't show up for a couple of days there, we knew
10 something was terribly wrong. And I got out, and so did some of
11 the other family members, and we hunted the roads. One of my
12 friends knew a gentleman with the Air National Guard, and he
13 called him and within an hour or so they had planes flying the
14 roadways searching for Donnie's car.
15 And then on Tuesday I came to Charlotte with Stanley
16 Chambers and myself and met with Mr. Rick Eldridge, and we had
17 lunch, and we went down to Coyote Joe's and searched the parking
18 lots and the ditches and all there. And when we left there,
19 then we drove back up Wilkinson Boulevard and turned to the
20 right on Morris Field Road and went right by where Donnie's body
21 lay and didn't realize it.
22 Q. How did you tell Mrs. Allen the news?
23 A. Well, we went back home after we left from up here, and
24 when we got home, I think some of the detectives were already
25 there, but we were watching the news, and all of the sudden it
254
1 showed an aerial view of Billy Graham Parkway and Morris Field
2 Road, and the reporter said there is a body in there. And at
3 that time I knew that it had to be Donnie.
4 Q. And what if anything did you say to Mrs. Allen at that
5 point?
6 A. I did not understand that.
7 Q. What did you tell your wife at that point?
8 A. Well, at that time, these detectives and my son, we were
9 in the bedroom and Shirley was in the kitchen, and they had
10 called and asked us if Donnie had a necklace with a cross on
11 it. And we told them that he did. And at that point I went in
12 and told my wife that they had found Donnie, that that was him.
13 She broke down and cried.
14 Q. Now, I believe you told me earlier that your family and
15 your friends and your church responded in a way that gave you
16 great pride and gratitude, is that correct?
17 A. That's correct, they came, as soon as they realized that
18 Donnie was missing they came in and they took over all the house
19 duties and everything. They brought in food, took care of
20 everything, and just put their arms around us and helped us in
21 more ways that we can ever say.
22 The donations came in after Donnie's funeral to Sharon
23 Baptist Church in his memory, and there was over $1,600 that
24 came in in donations, and --
25 Q. Did you do anything with those donations to express your
255
1 love for your son?
2 A. Yes.
3 Q. What did you do?
4 A. We purchased three crosses and put them in front of our
5 sanctuary.
6 Q. Now, Mr. Allen, how has life been since June 22nd of
7 1996 for you?
8 A. I'm sorry, sir?
9 Q. How has life been for you since June 22nd, 1996?
10 A. Well, it's been a living hell.
11 Q. Have you had nightmares about the incident?
12 A. Yes, sir, I have. I have awakened in the middle of the
13 night screaming, dreaming that I saw Donnie in that drainage
14 ditch and me trying to get to him. And about that time my wife
15 would pat me on the shoulder and wake me up.
16 And one other time I dreamed that I had seen him, and I
17 was down on my knees and he walked up beside of me and put his
18 arm around my head and patted me on the head. But it's
19 something that's hard to live with.
20 MR. CONRAD: That's all I have, Judge.
21 THE COURT: Cross.
22 MR. WILLIAMS: (Shakes head.)
23 THE COURT: Call your next witness.
24 MR. CONRAD: United States would call Shirley Allen.
25 SHIRLEY ALLEN,
256
1 being first duly sworn, was examined and testified as follows:
2 DIRECT EXAMINATION.
3 MR. CONRAD:
4 Q. Mrs. Allen, I'm going to ask you a series of questions,
5 and if at any time you want to stop, just please let me know.
6 Would you tell the jury your name and relation to Donnie Allen?
7 A. Shirley Allen, I was Donnie's mother.
8 Q. Now, Mrs. Allen, Mr. Allen referred to his premature
9 birth, would you tell the jury about the birth of your son
10 Donnie?
11 A. Yes. He was like a six-month's baby, I had been in the
12 hospital twice prior to the time of his birth. The second time
13 I was in the hospital, my husband took me in the middle of the
14 night and the doctor told me that if the baby survived, he only
15 had a 25 percent chance of living. And then I went home the
16 next day, and then my husband had to rush me back to the
17 hospital within a few hours, and then Donnie was born.
18 Q. And how much did he weigh when he was born?
19 A. 2 pounds 14 ounces.
20 Q. And because he was so small was special care given to
21 him?
22 A. Very much so, he had to stay in the hospital 48 days.
23 He only weighed 4 pounds, just a little over 4 pounds when I
24 brought him home.
25 Q. Did you get him after 48 days?
257
1 A. Pardon?
2 Q. Did you get him after 48 days?
3 A. Yes, and he had to be fed every three hours, and it took
4 one hour to feed him because he didn't have his sucking power
5 yet because he was so premature.
6 Q. Now, he was the fifth of your five children?
7 A. Yes.
8 Q. How much younger than the next oldest child was he?
9 A. It was 11 years between him and Dean.
10 Q. Tell the jury what Donnie was like?
11 A. He was outstanding. Donnie never said an unkind word
12 about anybody. At the time he was born we had two sons in
13 senior high and a daughter and son in junior high. And Donnie,
14 they all just showed him, you know, all he ever knew was a lot
15 of love. He was all of our baby, you know, we all shared in
16 raising him. And he just -- he always said mom, if you can't
17 say anything good about somebody, just don't say anything at
18 all. That was kind of like his motto, you know. If you ever
19 met him you would always remember him. He was just a dynamic
20 type of person.
21 Q. Did he love golf?
22 A. Yes he loved it.
23 Q. Did he golf with your husband?
24 A. Yes, he did, he golfed with my husband and he loved any
25 kind of sports, but he did love golf, he was a real good golfer.
258
1 Q. Did he love cars and trucks?
2 A. Yes, he did. He had a show truck, he spent a lot of
3 money on it and he spent a lot of time on it. And he would show
4 it at car shows, he won lots of trophies showing it.
5 Q. Did there come a time when he traded in his show truck?
6 A. Yes, he found out it wasn't a practical kind of vehicle
7 to drive to work, and so he came in one day and he told me and
8 his dad, he said, I'm going to go trade my show truck in, and
9 I'm going to get me another car. And he asked Dean, his
10 brother, would he like to go with him to hunt another car, and
11 Dean went with him, and he had told me prior to the time they
12 were going to go out there to look for a car he thought that he
13 wanted to get a red car. And I said, well, you know, that's
14 fine, whatever you want to get. But they came back, he had his
15 navy blue metallic Honda Prelude. He blowed the horn and I went
16 out and looked at it, and I said, well, Donnie, I thought you
17 were going to get a red one. And he said mom, this one had
18 everything on it I wanted and I know blue is your favorite
19 color.
20 Q. Is that the blue Honda Prelude what the defendant took
21 from him the day he murdered him?
22 A. Yes, it is.
23 Q. Tell the jury about your reaction when you learned of
24 your son's death?
25 A. Well its unexplainable. The family knew it, probably a
259
1 good bit longer before I did. Of course I figured after they
2 found his car, you know, that it wasn't likely that they would
3 find Donnie alive, you know. I just had a bad feeling. But
4 when my husband told me, it was a pain that went in my heart and
5 it's been there for 19 months, and it will never go away.
6 Q. Can you tell the jury about his birthday the first time
7 after he was killed, is it March 30th that Donnie was born?
8 A. Yes, March 30th.
9 Q. March 30th of 1997, did that fall on a particular day?
10 A. It fell on Easter Sunday, and we had purchased these
11 crosses for the memorials in Donnie's memory, and we had a good
12 occasion that Sunday at church, and all of -- a lot of people in
13 church got up and talked about Donnie, and especially his Sunday
14 school class members and all.
15 Q. How did that make you feel?
16 A. It made me feel proud to think that they thought so much
17 of him.
18 Q. Now, Mrs. Allen, was there a special day in August a few
19 months after Donnie's death, was there a special day that made
20 you think of him. Do you recall the wedding of a close friend
21 of his?
22 A. Oh, excuse me.
23 Q. That's okay?
24 A. Donnie's very best friend, Brian Jones, who they went to
25 school together, Donnie was close to his brothers but he was
260
1 closer to Brian because they shared so much together. They went
2 through school together, they went to York Tech together, you
3 know, they did everything together, hunted together. And Brian
4 was married August 17th, the Sunday after Donnie got killed. He
5 was supposed to go try on his tux to be in Brian's wedding. And
6 of course he didn't get to do that. But Brian called me shortly
7 before the time he was going to get married and he said, I
8 have -- I would like to do a special thing in Donnie's memory at
9 my wedding and would it be okay. And I said, Brian, whatever
10 you want to do would be fine.
11 And so Brian thought this up himself, and I thanked him
12 and his wife to be, they discussed it of course, but in the
13 bulletin or whatever of the wedding it had a special thing in
14 there it said there was going to be a candle lit in Donnie
15 Allen's memory. And we actually didn't know exactly how Brian
16 was going to do it, but me and my husband went, and when we sat
17 down there was this pedestal with a candle on it, and it had a
18 globe on it and it had green ribbons on it. And that was
19 Donnie's favorite color, green.
20 And when Brian came out with his dad and the minister,
21 before Kim his bride to be come down the aisle, he reached over
22 and lit the candle, and then the wedding ceremony proceeded, you
23 know, as normal. And it was, I think it was six bride's maids,
24 and of course it would have been five ushers, and five of the
25 ushers took, each one took a bride's maid out. The last little
261
1 girl that Donnie was going to take out, she went up and picked
2 the candle up and carried it out and took it out in the foyer of
3 the church, and they had a glass table with Donnie's picture
4 there, and she sat the picture on the table with the candle.
5 Q. As Donnie's mother, how did that make you feel?
6 A. I mean, it was just -- I know Donnie's love for Brian
7 and for Kim, and it made me feel proud.
8 Q. Did I ask you to bring a photo album to help you testify
9 about your son, Donnie?
10 A. Yes, you did.
11 Q. Can you come off of the witness stand and stand before
12 the jury. I will hand you what has been marked as Government's
13 Exhibit 61 A and ask you if you could show the jury some of
14 these pictures and let it help you describe your son Donnie for
15 them.
16 A. Okay, that was Donnie at birth, he weighed 2 pounds 15
17 ounces. And this is where he was in the hospital, and I think
18 he was just about a year there. And I think this is like his
19 second birthday. And that just shows some snapshots. He was
20 still real small at even age two, and that's him and my husband,
21 and that was him and his grandfather. And that was some more
22 pictures of him. I think that was made again when he was about
23 close to one year old. And that was when he was in
24 kindergarten. And we got this for Christmas, and he must have
25 been about 8 or 10. And he was real proud of his
262
1 three-wheeler.
2 And he loved baseball, and that's some more pictures,
3 and that's a prom that he went do and the little girl that he
4 took. And some more. And this was his Chevy show truck. And
5 this was his Honda that he loved. And that's his graduation
6 pictures, one of his graduation pictures. And there is a
7 picture that came out in the paper, and I just cut that out
8 where he made the honor roll. And this is the 10 point buck he
9 killed with one shot. And this is mounted on the wall above our
10 mantel above a portrait that my daughter made of him.
11 Q. Is that the buck that you didn't want in your house?
12 A. Yes, and he was so proud of it I told him he could put
13 it wherever he wanted to. And that's his graduation picture
14 from high school.
15 Q. And finally Mrs. Allen I want to show you --
16 MR. CONRAD: May I move admission of Government's
17 Exhibit 61 A.
18 THE COURT: Yes.
19 BY MR. CONRAD:
20 Q. Government's Exhibit 61 B, and ask you if you can tell
21 the jury about that exhibit?
22 A. Well, our daughter, she sent it and she had all of us
23 one made like this. And she said that she felt that it would
24 make us feel better, you know, that we knew Donnie was in heaven
25 and he got a beautiful poem to it.
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1 Q. Does it have a picture of Donnie in a plaque, Forever In
2 Our Hearts?
3 A. Donnie Lee Allen, Forever In Our Hearts.
4 Q. And would you read the poem for the jury?
5 A. I'm free. Don't grieve, for me for now I'm free. I'm
6 following the path God laid you see. I took his hand when I
7 heard him call, I turned my back and left it all. I could not
8 stay another day, to laugh to love to work or play. Tasks left
9 undone must stay that way, I found that peace at the close of
10 the day. If my parting has left a void, then fill it with
11 remembered joys. A friendship shared, a laugh, a kiss, oh, yes,
12 these things I too will miss. Be not burdeneded with times of
13 sorrow, I wish you the sunshine of tomorrow. My life -- my
14 life's been full, I savored much, good friends, good times, a
15 loved one's touched. Perhaps my time seemed all too brief,
16 don't lengthen it it now with undue grief. Lift up your hearts
17 and peace to thee, God wanted me now, he set me free.
18 Q. Where do you have this hanging in your house?
19 A. It's in Donnie's room.
20 Q. Does it bring comfort to you?
21 A. Yes, and all of our children has a copy of it too.
22 MR. CONRAD: That's all I have. You can sit down.
23 THE COURT: Do you want any questions?
24 MR. WILLIAMS: No, Your Honor.
25 THE COURT: Call your next witness -- let's take an
264
1 afternoon recess at this time, members of the jury do not
2 discuss the case among yourselves while you are out.
3 (The jury left the courtroom.)
4 MR. LAUGHRUN: Judge, again we renew our objection.
5 THE COURT: Pardon?
6 MR. LAUGHRUN: Before we began the testimony we asked
7 Your Honor to renew our objection.
8 THE COURT: Yes, sir.
9 MR. LAUGHRUN: Ask Your Honor to give a limiting
10 instruction, Your Honor denied that and we again renew our
11 objection that was discussed at the bench with Your Honor and
12 Mr. Conrad and Mr. Walker if Your Honor please.
13 THE COURT: Thank you sir, recess until 3:20
14 (Brief recess.)
15 THE COURT: Call the jury.
16 (The jury returned to the courtroom.)
17 THE COURT: The government call its next witness.
18 MR. WALKER: Your Honor the government would call Denise
19 Allen.
20 DENISE ALLEN,
21 being first duly sworn, was examined and testified as follows:
22 DIRECT EXAMINATION.
23 BY MR. WALKER:
24 Q. Denise, would you state your full name and tell us what
25 relation you were to Donnie Allen?
265
1 A. Yes, my name is Denise Allen Hogue, and I'm Donnie's
2 only sister.
3 Q. At the time of Donnie's murder, how old were you,
4 Denise?
5 A. I was 34 getting ready to turn 35 -- I'm sorry, I was 35
6 years old then.
7 Q. Okay, so you were how old when Donnie was born?
8 A. I was 13 years old when he was born.
9 Q. I requested of you, or Mr. Conrad and I requested of you
10 that you prepare a short video presentation concerning Donnie,
11 is that correct?
12 A. Yes, sir.
13 Q. And did you do that at our request?
14 A. Yes.
15 MR. WALKER: Your Honor, may she be allowed to come down
16 to the --
17 THE COURT: Yes, sir.
18 BY MR. WALKER:
19 Q. If you will come down and join me, and I'm going -- if
20 you would stand over here on the side, and if you would, before
21 I press play, would you tell the members of the jury just in
22 summary, in general what is shown on the videotape they are
23 about to see?
24 A. Yes, it starts out when Donnie was about 15 years old,
25 and it's just parts, little segments chosen mostly at Christmas
266
1 gettogethers of our whole family, and every birthday we get
2 together here and there. And it ends off with his last
3 Christmas of '95f when he was almost 22.
4 Q. And I believe you told me about the video, the date on
5 the camcorder is incorrect?
6 A. Right, it's the wrong date.
7 MR. WALKER: I'm going to move admission of 62, I believe
8 I just did so. I'm going to insert this tape and I'm going to
9 press play and I'm going to let the jury watch this tape.
10 THE COURT: Excuse me.
11 MR. WALKER: I'm sorry.
12 THE COURT: Let it be admitted.
13 MR. WALKER: Thank you, Your Honor.
14 BY MR. WALKER:
15 Q. And I'm going to let the jury watch this and I'm going
16 to ask you some questions about it okay?
17 A. Okay
18 (tape played for the jury).
19 BY MR. WALKER:
20 Q. If you will go back to the witness stand, I'm going to
21 ask you a few more questions. Will you tell the members of the
22 jury and I'm going to stand up because the TV is in my line of
23 vision to you, will you tell the members of the jury about your
24 children?
25 A. Yes, I have two boys, my oldest son is 14 and a half
267
1 years old now, and my baby is 6 and a half years old.
2 Q. And what are their names?
3 A. Oldest son's name is Brandon and the baby's name is
4 Matthew.
5 Q. Tell the jury about Donnie's relationship with your son
6 Brandon?
7 A. Well, he was really close to I would say all of -- well
8 the whole family, but he was real close to them. My oldest son
9 Brandon looks like almost identical to Donnie he looks more like
10 Donnie than he does me or my husband, and even more so now
11 because he is getting a little light mustache and starting to
12 look even more like him. But they were really close and Donnie
13 just really loved him, he thought an extra lot I think of him.
14 Q. Tell the jury the special needs of your son Brandon?
15 A. He is in a wheelchair, he is handicapped. He is total
16 care.
17 Q. Did you ever have a conversation with Donnie about the
18 care of your son Brandon?
19 A. Yes, I did.
20 Q. What would we tell you?
21 A. I remember having a conversation with Donnie, he was
22 probably only 10 or 11 years old at the time. My baby of course
23 wasn't even born then, and I remember telling him that I was
24 concerned about going on vacation with, you know, what if God
25 forbid anything ever happened to me and Brandon's father, who
268
1 would take care of Brandon. And I said, you know, those -- you
2 try to not think about them but that concerns you. And he said
3 Sissy, Donnie always called me Sissy, he said don't you worry
4 about Brandon if anything ever happens to you I will take care
5 of him.
6 Q. At some point Denise, did you become aware that Donnie
7 had taken out a life insurance policy?
8 A. Yes, sir, I did.
9 Q. Tell the members of the jury how you became aware of
10 that and how you became aware where the proceeds of that policy
11 would be directed in the event of his death?
12 A. Well, my mother first mentioned it to me just briefly
13 before Donnie was killed, I don't remember exactly the date or
14 anything, but she just mentioned to me that Donnie, something to
15 her about wanting to put my name as beneficiary on his life
16 insurance policy so that in the event if anything ever happened
17 to him, that Brandon would be taken care. He really did it
18 because of Brandon, and I really, of course, I didn't think
19 anything about that. And then I was told about it after Donnie
20 was killed a day or two later by his -- where he worked, men
21 came to mom and dad's house and explained to me that he had in
22 fact put my name on the life insurance policy.
23 Q. Do you remember where you were when you first became
24 aware that Donnie was missing?
25 A. Yes, I do. I was at home -- well, the very first time
269
1 actually, we were attending a wedding that Saturday, June 22nd,
2 which Donnie was supposed to come up with mom and dad and go to
3 also in Mt. Holly. And they said he hadn't come home, the night
4 before he had gone out and mom said, I'm a little concerned.
5 And she said well, I will give him one night, kind of like that
6 he being 22 years old.
7 And so if I had known that -- but she said he better be
8 home when we get there. And I didn't know, I didn't talk to her
9 again that evening. If I had found out he wasn't home by that
10 evening I would have been very concerned, because Donnie just
11 wouldn't have done that. I actually didn't find out until the
12 next day, and it was pretty late in the evening on Sunday that
13 he had in fact still not come home because my husband finally
14 remembered to tell me that my mom had called earlier in the day
15 when I was in the shower and asking if Donnie had come by the
16 house, or if he was there.
17 And as soon as my husband told me that, my first
18 response was, he is not home yet? And he said no, and I got on
19 the phone immediately with mom and called her then to talk to
20 her about it.
21 Q. When did you -- you have seen the flier that's been
22 admitted as evidence in the case, Government's Exhibit 26 A, is
23 that right?
24 A. Yes.
25 Q. Tell the members of the jury what steps you went to to
270
1 put these flyers up and what you did on behalf of trying to find
2 your little brother?
3 A. Well, after I spoke with mom that Sunday evening,
4 needles to say I didn't sleep that night because I knew
5 something was wrong. And I spoke with a really good friend of
6 ours who lived across the road. One of my mother's best
7 friends, Margaret Pearcy, asked her to come over to talk to me,
8 because I explained the situation to her and she knew something
9 was wrong too, had known Donnie all his life.
10 And we stayed up to 2:00 in the morning, she finally
11 said I'm going home, if I don't you won't go to sleep. So I
12 tried to sleep and couldn't. I slept 30 minutes and got up and
13 watched the clock waiting until it was not too awful early to
14 call my mother in law. I called her and asked could I please
15 bring my sons to the house and leave them, Donnie was missing
16 and I had to go to mom and dad's.
17 So I went to South Carolina. Immediately when I got
18 down there there was already other family members there and
19 church members everybody with the family, and that's when I said
20 I just can't sit here, I couldn't stand just sitting around
21 waiting to try to find something out, not knowing really it was
22 looking for a needle in the hay stack, we didn't know where he
23 had gone or anything. Other people had been searching up and
24 down the road like my father stated he had been, and other
25 family members or church friends and all had been too.
271
1 So I got out and looked up and down the roads also,
2 myself, honking the horn, down country roads, getting out
3 hollering Donnie's name, looking in ditches. And I had a real
4 strong feeling come over me that he is not with his car, because
5 we thought maybe a wreck, but I said no, he is not with his car,
6 I just knew it. And any way I finally came back by the house
7 and then I got a picture of him. I had the idea to go out and
8 start showing his picture. And when I happened into a hardware
9 story a lady said, have you thought about having posters made
10 up, and I said no, I haven't thought of that. So I had some
11 made up, and people there were really nice. She wouldn't charge
12 me for them or anything. And I started distributing them, I put
13 those out by myself, about 50 of them.
14 Q. Where were you when you finally learned that they had
15 discovered Donnie's body?
16 A. Well, we had actually the next day after that -- well
17 that Monday night actually they found his car, my brothers and
18 dad and all had gone over to see it. I wanted to go and they
19 said no, don't go. I stayed with mom. And they came back and I
20 remember my dad talking about, I can't remember if they told mom
21 about them finding the gun in the dumpster, that type of thing,
22 but I heard him saying something about it. And I remember my
23 dad that night saying, it was only him and myself sitting in the
24 great room that evening, and he said, I don't think we will ever
25 see Donnie alive again.
272
1 And I wanted to console him, I wanted to make him
2 believe different, but I couldn't because I didn't believe it
3 either. I believed that he was probably right, but I didn't
4 want to, you know, say it. So any way, the next day, we had
5 more posters made up, and I was out getting ready to distribute
6 them, and something told me check back home. So I picked the
7 car phone up and called home. And my brother Dennis answered
8 the phone and he was taking all the calls, and I remember him
9 just saying, you need to get home. And he wouldn't tell me much
10 over the phone he just said someone has admitted to or confessed
11 to driving Donnie's car, is all he would tell me.
12 So these people were going to help me distribute the
13 flyers that day, they wouldn't let me drive back home to mom and
14 dad's, they drove me back to his house. They met me in the
15 garage before I walked in and he told me, listen -- at that time
16 they had seen on the TV where they found the body off of Billy
17 Graham. And he said we are 90 percent, exactly, 90 something
18 percent sure that it's Donnie. He said, but we are not telling
19 mama anything until we know for sure, can you go in the house
20 and hold up okay in front of her, if not come back in mama's
21 bedroom.
22 And I said look at me, Dennis, I can't cry, I just
23 refuse to believe it. I didn't believe that it was him. I
24 wouldn't allow myself to believe it. So I went in the house and
25 then later on at one point in time Dennis comes into the kitchen
273
1 and asked my mother who Donnie's orthodontist was, one of his
2 son's teeth was protruding out and he was going to have braces.
3 And as soon as I knew that, I looked at my cousin and said they
4 are going for the dental records, oh, my God. And then I really
5 knew it. But mom didn't even realize it, she just started
6 telling him everything. And my dad came and he told mom then
7 that it was Donnie. And that's how I found out.
8 Q. That's when you knew for sure?
9 A. Yes.
10 Q. How has Donnie's death impacted you, Denise?
11 A. We were really close because he was -- I was 13 when he
12 was born, and my mom always said, you are like his second mama
13 because I kept him when he was really little so she could work.
14 And then whenever they moved to South Carolina, Donnie was still
15 in school, and that was March 23rd the year they moved down
16 there because I remember it was on my birthday. And Donnie was
17 still in junior high school, you know, finishing up the school
18 year. And so they -- he stayed with me and my husband and
19 finished the school year out before he moved to South Carolina.
20 So we were -- even became even closer because of that,
21 and even once they moved, we still did things together, we
22 always had family gettogethers and things, but we had a lots of
23 things in common, like daddy spoke of him playing games, him and
24 his girlfriend would come up and we play cards and all of that,
25 and he just -- he loved also to go to haunted houses, and I do
274
1 too. And I remember the Halloween before we hunted haunted
2 houses together and just things like that. And things just have
3 not been the same since he has been gone.
4 MR. WALKER: Your Honor, I don't have any other
5 questions for her.
6 THE COURT: Thank you very much.
7 MR. WILLIAMS: Your Honor, we would like to be heard.
8 THE COURT: All right.
9 (Bench conference not recorded.).
10 THE COURT: Call your next witness.
11 MR. WALKER: Thank you, Your Honor, government would
12 call Dennis Allen.
13 DENNIS ALLEN
14 being first duly sworn, was examined and testified as follows:
15 THE COURT: Mr. Conrad, while I think about it, 61 B, I
16 don't believe you moved that into evidence.
17 MR. CONRAD: I should have Your Honor, and I move it at
18 this point.
19 MR. LAUGHRUN: No objection.
20 THE COURT: Thank you, let it be admitted.
21 MR. WALKER: May I proceed Your Honor.
22 THE COURT: Yes.
23 DIRECT EXAMINATION
24 BY MR. WALKER:
25 Q. State your full name and tell us what you do for a
275
1 living?
2 A. My name is Dennis Gene Allen, work for Duke Energy
3 located here in Charlotte but I work out of Gastonia.
4 Q. Donnie Allen was one of your younger brothers, is that
5 right?
6 A. That's correct, he was my youngest brother.
7 Q. Are you married, Dennis?
8 A. Yes, sir.
9 Q. How many kids do you and your wife have?
10 A. We have two boys, Kaylem and Cameron Allen, Kaylem is 12
11 and Cameron just turned 8.
12 Q. Are you the oldest son?
13 A. No, I'm next to oldest.
14 Q. Do you remember when Donnie Allen was born?
15 A. Yes, I do.
16 Q. Will you tell the jury about your relationship with
17 Donnie as he grew up?
18 A. When Donnie was born, I was 16 year old and just kind of
19 getting on my own, just got my driver's license and whatnot, did
20 a lot of things with him, baby sit and whatnot, and even take
21 him out from time to time, riding around in the car. As a
22 matter of fact right when I used to start dating, I would take
23 Donnie with me. He was kind of an ace in the hole to kind of
24 get the girls to -- I mean, I never known a girl that didn't
25 like kids. So I take Donnie with me, and that would get the
276
1 ball rolling.
2 But like I say, we did a lot of things together, and as
3 he was growing up and whatnot, one time I bought him a duck that
4 was dyed pink, I think, and as the duck grew up, the dye came
5 off of it, but the duck got full grown, and one time, I woke up
6 to go to school, I think, and I seen a bunch of feathers out in
7 the yard where one of the neighbors dog got a hold of the duck.
8 And all that was left was a bunch of the feathers. And I
9 scraped them up so Donnie wouldn't see what happened to his
10 duck.
11 And I bought him a cat one time, brought a cat home.
12 Needles to say a little later on the cat got run over. I don't
13 know, when Donnie came along, I was of the age, there was four
14 of us that grew up real close of age growing up together, we'd
15 fuss, fought and all, but when Donnie came along he was special
16 because he was so much younger. And it was almost like he was
17 my son, you know, but I took care of him like I take care of my
18 own boys right now.
19 Q. Now, you are an avid fisherman, is that right?
20 A. That's correct.
21 Q. Would you ever take Donnie with you on fishing trips?
22 A. Yes. I run a business on the side, I take people out,
23 run a guide service fishing for striped bass. And I take them
24 down to Columbia, South Carolina and charge them a fee and take
25 them out, and I done it for probably eight years ago now. And I
277
1 got to where I can locate the fish fairly often and put people
2 on fish. And they have a good time.
3 And I would take dad and my older brother David and Dean
4 and Donnie out, and we would just have a big day going out all
5 day long fishing and catch a bunch of fish and talk about who
6 was going to catch the biggest fish or most fish. I never
7 forget one time I took Donnie out, just he and I, one fall. And
8 in fact it was the first time I took him out. And I wanted to
9 really impress him, and I put him on the fish and let him have a
10 good time, and we stopped, we put the boat in water and I bought
11 some bait and we stopped at couple of places. The fish had
12 moved, they were not in that area, and I said well, they were
13 making migration, so I rode about 12 miles back up the lake in
14 the boat and located a big school of fish and double anchored
15 the boat, and we sat down on the fish and probably had 10 dozen
16 baits, and we sat up there and caught fish and walked on fish
17 until we ran out of bait. And I never will forget that. Donnie
18 had a real good time. He told me when he left he said, if you
19 need a first mate, call on me.
20 Q. Did you and Donnie ever discuss plans to go into
21 business together at some point?
22 A. Yes, we did. I talked with Donnie the Monday before he
23 went missing on a Friday, he stopped by the house to pick up a
24 couple of videotapes after work. And my wife had made supper,
25 and the boys and I, we had already eaten. And Donnie came in,
278
1 he had work clothes on, all dirty and whatnot, and I could tell
2 he was tired. And I invited him in, and we had plenty of food,
3 and I said come on in and eat you a bite. And he came on in, he
4 always had a big appetite, and he ate, and we started talking
5 and whatnot. And he went by this guy's house for months on the
6 side about every evening, I would say for three or four months.
7 This guy, what he did, he sharpened blades on his green cutter
8 machines, and he was the only guy in the area who did that, and
9 he had a real good reputable business and made real good money
10 at it. And Donnie went by there and learned a trade from this
11 guy. He went by and worked for nothing just to see what it took
12 to do this type of work.
13 And Donnie said if I only had enough money I would go
14 into business on my own, and this is what I'd do, I would learn
15 the technique, there's a certain way you do it, he said, I
16 learned it. He said, I don't have the funds to do it. And he
17 and I sat there and talked that evening, and we must have talked
18 for two and a half hours, and I said how much do you think it
19 would cost, he said to get the jigs and get the certain tools to
20 do this, to run this type of operation he said, probably cost 10
21 or 12 thousand dollars. And I said well, Donnie, if I come up
22 with the money, I said, could we go halfers in this business? I
23 said you learn me the trick of the trade I will do the
24 financing, and I said we will do this on the side until we can
25 venture out and do this on our own. He said let's do it. So we
279
1 planned on doing that.
2 Q. Dennis, where were you when you first became aware that
3 Donnie had not returned home from Coyote Joe's that night?
4 A. Well, I went to Promise Keeper's rally at Charlotte
5 Motor Speedway all day Friday and all day Saturday. It started
6 early Saturday morning, and all day Saturday. When I got home
7 that night, mom and dad called and said Donnie hadn't called
8 in. And I was worried, but I didn't want mom and dad to get too
9 worried, I said, don't worry about it mom, I said -- I think it
10 was mom I was talking to -- I said, don't worry, I said, he is a
11 big boy, you know. I said, he probably went to one of his
12 friend's house, he might have got a wild hair and decided to
13 ride to the beach. I said, just don't worry about it.
14 So then Sunday I called back down there and she said,
15 no, he hadn't gotten home yet. And I said don't worry about it,
16 he will be at work tomorrow. I said, I'm sure he's at the beach
17 somewhere with some of his buddies and he will show up. And I
18 said but call me if he doesn't show up for work Monday morning.
19 And they called me Monday morning and said that it was like an
20 hour after the time he was supposed to be at work and said no he
21 did not show up. And I was at work, and at that time I dropped
22 everything I was doing and I told my supervisor I had to go. I
23 said, I'll get back with you when I can but I need to go to mom
24 and dad's. And so I left there and went to mom and dad's.
25 Q. You left and went to your mom and dad's in McConnells?
280
1 A. That's correct.
2 Q. Tell the members of the jury those hours how you became
3 aware, more aware that you would never see your brother alive
4 again?
5 A. Well, while we were there, dad was out looking and
6 whatnot, and sis was out handing out and putting flyers and
7 whatnot in stores. And I stayed there with mom, and a lot of
8 church and family members began to come in and stay around the
9 clock and bring food and whatnot. And Monday evening we got a
10 call, said Donnie's car had been located up in Charlotte behind
11 a shopping center. So we all loaded up in the vehicles, and it
12 was me and Dean and the next youngest brother and a couple other
13 guys in one vehicle, and dad and several people in another
14 vehicle, and we rode up there.
15 And by the time, when we got there, my brother-in-law,
16 Kenny Hogue was there, one of his friends had started roping off
17 the scene. And we saw Donnie's car. And we walked up to the
18 car right before they started roping off the scene, I seen
19 cigarettes in the ashtray and handcuffs, and I said things don't
20 look good, because Donnie didn't smoke and he didn't own any
21 handcuffs.
22 Q. At some point, you became aware that there was a --
23 well, the sawed off shotgun that's in evidence in the case, that
24 that had been located out next to his car in the dumpster, is
25 that right?
281
1 A. That's correct, we were standing there, and they started
2 roping off the scene and my brother Kenny walked up to my area
3 and said, it gets worse. And I said, what are you talking
4 about? He said, there is a sawed-off shotgun in the dumpster,
5 police know about it, and at that time they were roping off the
6 dumpster and the car. And you know, I just said, you know, this
7 looks bad, you know. Dad was there, and I was trying to keep
8 dad calm and whatnot. And as time went by and more
9 investigators started showing up, we convinced dad that the best
10 thing he could do was to go on to the house because I didn't
11 want him to get too upset. So one of the guys took dad and took
12 him home. And I stayed there and watched them, or stayed there
13 until they pulled the gun out of the dumpster and the rest of
14 the things that were in the dumpster. And then once we realized
15 there was nothing else we could do, we went on back to mom and
16 dad's house.
17 Q. When was it that you -- what steps did you take if any
18 when you knew that Donnie was still missing before you found out
19 for sure that his body had been recovered?
20 A. When he got back home and they located the car, next
21 morning the news media, they were everywhere. They were ringing
22 at the door -- knocking at the door, calling on the phone, and
23 we finally allowed one state -- one station to come in to the
24 house, I don't know who it was, but what we wanted to do was
25 show them a picture of the flier that we made out of Donnie's
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1 picture and ask that if anybody saw this picture please notify
2 the police immediately, that they located his car over in
3 Charlotte, told where that was at, told them that on the news,
4 and you know, told them that we was really concerned about
5 Donnie. And they went on and asked, it was unlike -- if it this
6 was like Donnie to stay out this long and not show up. And I
7 said no, this was unlike Donnie. He always let mom and dad know
8 where he was at at all times, never stayed out overnight without
9 calling home, and we were really worried about him. And that if
10 anybody saw or heard anything to notify the police and let them
11 know because we were really worried about him. And I was in
12 contact also with, I think, Bob Holl and several other officers
13 and they were calling back and forth to mom and dad's house
14 talking to myself. And I was kind of acting as the mediator or
15 whatever, what you call it, but --
16 Q. When did you become aware that they had for sure
17 discovered, when did that dawn on you that they discovered your
18 brother's body?
19 A. Well, that Tuesday evening they called and they said
20 don't do anything, says we have got some breaking information,
21 we are on the way to the house. And so I got my brothers and
22 sister -- well, no, my sister wasn't there at the time, no, she
23 was still out. My brothers and dad, and I got them in dad and's
24 bedroom, and I told them they heard something, they told me that
25 something is getting ready to come out on the news and there is
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1 two investigators on their way to the house. And I said they
2 told me they found a body, I said things don't look good. And
3 when the investigators got to the house, we heard -- I herded
4 them into the back bedroom in mom and dad's bedroom, we didn't
5 want mom to get upset any more than she already was, and they
6 started asking for dental records and asked certain items of
7 jewelry that Donnie might have been wearing. And dad named off
8 that he had a necklace and a watch and whatnot and everything,
9 and they said those items have been retrieved, says it's
10 probably Donnie, but his body is so decomposed that we don't
11 know until he get dental records.
12 And that's why I just out of the blue asked mom, I said,
13 mom -- I told her a lie -- I said, mom, Kaylem needs dental work
14 done, who was Donnie's orthodontist, he did real good work on
15 Donnie, what was his name. And she give me his name and didn't
16 realize anything about it. And I went back and gave it to the
17 investigator, and that's when they relayed the message back for
18 the dental records so that they could check dental records.
19 Q. Okay. Tell the jury, if you would, what impact Donnie's
20 murder has had on you?
21 A. It's had a big impact. Right when we decided to tell
22 mom, we walked out of the bedroom, and we walked in the kitchen,
23 and dad told mom, said mom, they found Donnie and they had two
24 chairs slid side by side. And I sat mom in the chair beside
25 me. Mom, she -- (crying).
284
1 Q. Dennis, tell us what happened at that point in your
2 kitchen?
3 A. Mom sat down in a chair beside me and dad told her that
4 Donnie was dead, that they had found him. And she laid her head
5 in my lap and she cried. She said, I want my baby, I want my
6 baby. And I just patted her and told her everything is going to
7 be all right, mama, he is in heaven and everything is going to
8 be all right. And we had a hard time, we grieved there for
9 several days. And ever since then, on any of our birthdays or
10 holidays, we always get together at mom and dad's and there is a
11 void there, every since then there's been a void. And there
12 always will be because Donnie is not there.
13 MR. WALKER: Judge I don't have any other questions of
14 Dennis.
15 THE COURT: Thank you, come down. Call your next
16 witness.
17 MR. WALKER: Your Honor, the government would call
18 Sydney Williams.
19 SYDNEY WILLIAMS,
20 being first duly sworn, was examined and testified as follows:
21 DIRECT EXAMINATION
22 BY MR. WALKER:
23 Q. Your name is Sydney Williams, is that right?
24 A. Yes, sir.
25 Q. And Sydney, you are the older brother of Robin Williams,
285
1 is that right?
2 A. Yes, sir.
3 Q. How old are you, sir?
4 A. 33.
5 Q. You may have to speak up just a little bit into that
6 microphone, although you don't have to yell into it.
7 A. 33.
8 Q. Okay. Sydney, where were you living in Roanoke at the
9 time your sister was murdered?
10 A. At 1441 Leon Street, Northwest.
11 Q. Leon Street, is that near where your mom was living at
12 911 Loudon Avenue?
13 A. Yes, about two and a half to three miles away.
14 Q. When did you first become aware that your sister had
15 been shot? And I want you to keep your voice up so that the
16 jury can hear what you say.
17 A. I was at work.
18 Q. What do you do for a living?
19 A. Well, right now, see, I quit my job because I haven't
20 been able to work.
21 Q. Tell me what you were doing, what were -- what was your
22 job back when your sister was killed?
23 A. I was working at the golf course. And like it was on a
24 Saturday, and like you rake sand traps and clean them off for
25 the golfers.
286
1 Q. Had you gone to work on that particular day that Robin
2 was killed?
3 A. Yes, sir.
4 Q. Tell the members of the jury what happened to you as you
5 were going to work that particular morning.
6 A. All right. Well, I got up that morning and I don't know
7 why I didn't want to go to work, because I always work. And I
8 only live about two miles away from my job. I turned around
9 five times, didn't even want to go to work, so I finally did
10 go. So I had like 47 sand traps to do, and I was finishing them
11 out and the guys that I was working with was hollering, what is
12 wrong? I don't know. And I just didn't want to go.
13 Q. Did you -- when you were at work that day, when you
14 finished raking those sand traps, did your supervisor come and
15 talk to you about something?
16 A. Yes, he just rode up to me and told me to go home.
17 Q. What did you say back to him?
18 A. And I had the guy that I was working with cigarettes in
19 my hand and I was giving back to them, and he said, Sydney, I
20 said go home and I mean go now.
21 Q. Did you go home?
22 A. I went straight there.
23 Q. Tell the jury what you found and saw when you got to
24 your mom's house on Loudon Avenue.
25 A. Okay. I went home and I just seen people out there out
287
1 in the street, and the police had roped off the corner over
2 here. So I seen my mom on the porch, and so I get out of the
3 car and I walk up, and, you know, the pastor and everyone over
4 there. And I said, mom, what is wrong? And she said, son, my
5 baby been shot. And so like I'm the oldest, I always took care
6 of them, always, anything I could do, I would do. So anyway, so
7 I said, was she all right? She said, I don't know, baby. So
8 then I said, well, where is my brother at? And she said, he at
9 the hospital? I said, which one, and she said Roanoke
10 Memorial. So my brother's wife was there and everybody was
11 around and I said, is she going to be okay, and she said yes.
12 So I immediately proceeded to go find my brother.
13 Q. Did you go to Roanoke Memorial to look for your brother?
14 A. Yes.
15 Q. Did you find him there?
16 A. Yes.
17 Q. What conversation did you have with your brother and
18 what did you find out?
19 A. I found him and I said, Kenny, where Robin at? And he
20 just buried his head in my shoulder and said, she is gone. He
21 just kept saying, she gone, just standing there, just don't know
22 which way to go, which way to turn, just standing there.
23 Q. You mentioned that you always took care of your sister
24 Robin. Tell this jury about your relationship to her.
25 A. All right. Well, I'm going to start from the
288
1 beginning. I remember vaguely when my mom first told me, I was
2 about eight, maybe nine, and my mom first told me that she was
3 going to have a baby. So my brother two years younger than me,
4 and so we know our road, so every night we used to pray for a
5 sister so she could take care of my mom when we get older. So
6 we did that, and so when she was born, we was happy.
7 All right, so my mom used to work during the day and my
8 dad always told her, well, you the little man of the house. And
9 I used to clean up, do dishes, everything. And my mom used to
10 give me money, and every Saturday, every Saturday and Sunday we
11 used to have a flea market behind us. I used to buy her a dress
12 every week, every week just for my sister. I used to comb her
13 hair for school, plait it, get her dressed for her and my
14 brother, even though I wasn't that much older, but I knew it had
15 to be done so my mom could work.
16 Q. Sydney, how has Robin's death affected your life?
17 A. Well, like when I was 17 and whatever like that, I met
18 my girlfriend and I moved out and everything. So, you know,
19 when you trying to make it and whatever, you lose contact, real
20 close contact with your parents and everything. Now, she was
21 the link to me and my parents and my family, the real link to
22 keep us together. If something was wrong to where they didn't
23 know how to ask me about it or something, she would come and do
24 it because she was good like that.
25 Q. Did you ever ask her for advice?
289
1 A. All the time, and she is ten years younger than me, and
2 she used to give me advice that I couldn't even figure out.
3 MR. WALKER: Judge, I don't have any other questions of
4 Sydney Williams.
5 THE COURT: Thank you, sir, you may come down. Call
6 your next witness.
7 MR. WALKER: Your Honor, the government would call
8 Kenneth Williams.
9 KENNETH WILLIAMS,
10 being first duly sworn, was examined and testified as follows:
11 DIRECT EXAMINATION
12 BY MR. WALKER:
13 Q. Your name is Kenneth Williams, is that right?
14 A. Yes, sir.
15 Q. And Kenneth, do you go by Kenneth or do you go by Kenny?
16 A. Kenny.
17 Q. Okay. Kenny, what do you do for a living?
18 A. I'm a locomotive engineer.
19 Q. I'm going to get you to sit up a little bit straighter
20 in that seat if you would. And Robin Williams was also your
21 younger sister, is that right?
22 A. Yes, sir.
23 Q. Were you living at 911 Loudon Avenue on the day she was
24 murdered, or did you live somewhere else in Roanoke?
25 A. I lived somewhere else.
290
1 Q. Okay.
2 A. I have my own house.
3 Q. Okay. How close is the house that you were living at at
4 the time to 911 Loudon Avenue?
5 A. I'd say it's about four, four and a half miles.
6 Q. Will you please tell the jury how you first learned that
7 Robin had been killed?
8 A. Uh-huh. Well, I had -- I got home from work that Friday
9 night and I went to bed. I was told by -- well, the phone rang
10 Saturday morning and my mother said, Kenny, hurry up and come
11 down here, that Mark had just shot your sister. So me and my
12 wife hopped in one of the vehicles and we went down to my
13 mother's house as fast as we could. By that time, police were
14 everywhere and my mother was just hollering, just out of her
15 head. So me and my wife went over to her, people was around,
16 and I looked in the ambulance and my sister was laying there and
17 noticed she wasn't moving. And so then I told her Cheryl the
18 stay with mama and I was going to the hospital. I went to the
19 hospital, and I was just walking up and down the aisleway, asked
20 the lady how my sister was. And she said, well, I'll have
21 someone come out and talk to you, and I said, oh, Lord, I knew
22 then to pray. So then the doctor came out and he looked at me,
23 and he said he was sorry.
24 Q. You knew at that point she was dead?
25 A. Yes, sir.
291
1 Q. Tell the jury, if you would, in your own words, sir,
2 about your relationship to Robin.
3 A. We was real close, like two peas in a pod.
4 Q. How has her death affected you?
5 A. When -- well, it affected me in a lot of ways. See, the
6 type job that I have, it requires my undivided attention,
7 because if I'm not paying attention, it could kill people.
8 Q. You have a hobby, you enjoy sports cars, is that right?
9 A. Yes, sir.
10 Q. Did you ever talk to Robin about sports cars?
11 A. Well, she likes nice sports cars and everything.
12 Q. Since her death, have you bought a sports car?
13 A. Yeah, I did.
14 Q. What have you done in her memory with that sports car?
15 A. I bought it and I put her name on the tag and put her
16 obituary inside. It's rough.
17 MR. WALKER: Judge, I don't have any other questions.
18 THE COURT: All right, thank you, sir, come down.
19 THE COURT: Call your next witness.
20 MR. CONRAD: United States would call Bertha Williams.
21 BERTHA WILLIAMS,
22 being first duly sworn, was examined and testified as follows:
23 DIRECT EXAMINATION
24 BY MR. CONRAD:
25 Q. Ms. Williams, just for the record, would you go ahead
292
1 and state your name again?
2 A. My name is Bertha Lucille Williams.
3 Q. Mrs. Williams, I told you when you testified earlier
4 that you would have a chance to tell the jury about your
5 daughter. Go ahead and tell them about Robin now.
6 A. Well, she was really a mama's girl. She was an outgoing
7 girl, considerate, kindhearted, and she loved her family and she
8 loved people. She had the gift of gab. She could talk to
9 anybody. She would always make you feel like you were special.
10 And she loved her Mommy. If I wouldn't eat it, she wouldn't eat
11 it. If I said I wouldn't do that, she wouldn't do that. Where
12 I went, she went. She was independent. She didn't need anybody
13 to help her, she would help herself. If you'd knock her down,
14 she'd get up. She always had a smile on her face, no matter
15 what the situation was, and she could make you smile if you were
16 down. She could make you smile and she wouldn't have to say
17 anything to you, she would just look at you and flash her smile
18 and that was it.
19 Q. Were you proud of her?
20 A. Always proud of Robin.
21 Q. What accomplishments did she achieve that you were proud
22 of?
23 A. Well, it started when she was young. She just started
24 off making me proud. She never did crawl, she walked before she
25 crawled, never did crawl. She was in kindergarten, she was the
293
1 hula hoop champion. She was in the 9th grade -- 9 years old,
2 she was the double dutch champion of the state. She played
3 three instruments in the band. She graduated from high school,
4 went to computer school and got her associate degree. She
5 was -- I was proud of her.
6 Q. Were you proud of her work at the hospital?
7 A. I was proud of her work at the hospital. It was a place
8 where she enjoyed working. She just touched everybody's heart.
9 Everybody she touched, worked with, she touched them. She even
10 went -- when she went to the burn center, she was there just 12
11 days, and the day she was there before she left, they had asked
12 her if she would consider to come back and be a counselor at the
13 burn center in August.
14 Q. And after her death, did you hear from patients and
15 doctors and nurses that she worked with --
16 A. After her death, the doctors and patients, the doctors
17 and the patients and all of them come. The day that she died,
18 the hospital was there. I didn't have to do anything, the
19 hospital took over, the hospital and the church.
20 Q. Did you have --
21 A. There was even a spokesman from the hospital at her
22 funeral.
23 Q. Did you have hopes for her future?
24 A. She told me she wanted, mom, I'm considering going back
25 to school when I get better. She was going to stay home for a
294
1 year and try to get her bearings again, but she wanted to go
2 back to school she said and do something, although she was
3 devastated with her burns. She thought that no one would ever
4 want her again, because she would never be able to gain
5 confidence in no man or anything again. But she was my baby,
6 and she was good and she was good to everybody.
7 Q. Mrs. Williams, when is your daughter's birthday?
8 A. Her birthday is October the 13th. 1972, she was born.
9 Q. She has had two birthdays since her death?
10 A. She's had two birthdays.
11 Q. What do you do on her birthday to remember her?
12 A. I put a memorial in the paper with her picture.
13 Q. Let me approach and hand to you what has been marked for
14 identification as Government's Exhibit 63B. Do you know what
15 that is?
16 A. That's Robin's picture and her memorial I put in.
17 Q. October 13th, 1997?
18 A. Yes.
19 Q. Whose words are those that are in the memorial?
20 A. They are mine.
21 Q. Would you go ahead and read that for the jury?
22 A. It says, today you would have been 25, today would have
23 been your 25th birthday, your second with the Lord, we so look
24 forward to this one, your brothers and I miss you so very much,
25 the emptiness lingers still and seems so unreal, each day we
295
1 still love you in big ways, in small ways, we love you this
2 minute and we love you always, happy birthday, our daughter and
3 sister, we know that you abide under the shadow of the Almighty,
4 love you forever, mom Bertha, brothers Kenny and Sydney.
5 Q. Mrs. Williams, did you also show me a poem that you had
6 written to deal with your loss?
7 A. Yes.
8 Q. Let me hand you 63E, and ask you if you recognize that
9 document?
10 A. I wrote it.
11 Q. And when did you write it?
12 A. I wrote it after she -- I think I wrote it in -- I wrote
13 it in maybe January, February '97.
14 Q. Okay.
15 A. I was sitting at work at my desk.
16 Q. And the poem that you showed me when I first talked to
17 you about it, was it all scratched up and arrows everywhere?
18 A. It was a mess.
19 Q. Was that your draft copy?
20 A. Yes.
21 Q. And then when I told you that I wanted you to bring it
22 with you to court, did you then write it neatly?
23 A. Yes.
24 Q. And is Government's Exhibit 63E your neat copy?
25 A. Yes.
296
1 Q. Would you read that poem to the jury, please?
2 A. It says, stuck at 23. She was 23 years old, so I wrote
3 stuck at 23 is the name of the poem. It reads, there should
4 have been a college degree, there should have been wedding bells
5 and the patter of little feet, there should have been more
6 laughter, hugs and kisses for me, mommy, but now you are stuck
7 at 23, how can I forget how much you loved me and how many times
8 we always agreed, how you knew my wants and my needs, and the
9 way you cared for me, but now you are stuck at 23, I love you my
10 daughter, you meant the world to me, so soar like the angel that
11 I know you to be, now you are free, free indeed, although you
12 are stuck at 23. That's all.
13 Q. Mrs. Williams, did you also tell me about a gown that
14 your daughter had at the time of her death?
15 A. Yes.
16 Q. And is this gown special to you for any reason?
17 A. Yes.
18 Q. Why is it special to you?
19 A. While she was at the burn center, the doctors, the
20 nurses, secretaries, lab technicians and everybody sent a gown
21 that they wrote on, put trinkets on for Robin.
22 Q. Does the gown --
23 A. And it meant so much to me to know that they cared so
24 much for her.
25 Q. Does it remind you of her?
297
1 A. Yes, it does.
2 Q. Can you look at Government's Exhibit 63C and tell me
3 whether you recognize it?
4 A. This is the gown.
5 Q. And can you hold it up for the jury?
6 A. (Witness complies.)
7 MR. CONRAD: Your Honor, I'd move admission of
8 Government's Exhibits 63C, 63D and 63B.
9 THE COURT: Admitted.
10 BY MR. CONRAD:
11 Q. And what is that, Mrs. Williams?
12 A. This is the gown that was sent to the burn center to
13 University of Virginia by her coworkers and the doctors and the
14 nurses. They all wrote inscriptions, things on it for her.
15 Q. And why does that affect you?
16 A. I knew my baby was special, but I didn't realize how
17 special she was. I didn't realize people cared as much about
18 her until I saw this. They sent this, they sent money, they
19 sent flowers. The administration finally had to come to the
20 room and asked us to ask them not to call so much, they had all
21 of the phone lines tied up at the university. Everybody wanted
22 to know about her, when she was coming back and how she was.
23 Q. Finally, Mrs. Williams, do you remember when I came up
24 to Roanoke to talk to you about Robin to ask you about what kind
25 of person she was?
298
1 A. Yes.
2 Q. And do you remember being concerned that you couldn't
3 express in words the love and affection you had for your
4 daughter?
5 A. Yes.
6 Q. And did you send to me something after I got back to
7 Charlotte?
8 A. Yes.
9 Q. What did you send me?
10 A. I wrote you this note about my Robin.
11 Q. And what did you put at the top of the note?
12 A. It says "More About My Robin."
13 Q. Did you consider that to be a victim impact statement,
14 that is, a letter that describes your Robin and how her loss
15 affected you?
16 A. Yes.
17 MR. CONRAD: Your Honor, I'd move admission of
18 Government's Exhibit 63F.
19 THE COURT: 63F, let it be admitted.
20 BY MR. CONRAD:
21 Q. And Ms. Williams, I would ask you to read that victim
22 impact statement to the jury.
23 A. It's just more about my Robin. It's so much better for
24 me to write how I feel about my daughter than it is for me to
25 try and say, because I'm so very emotional. It says, my soul
299
1 mate, encouraging, uplifting, loved people and full of life. If
2 you were having a bad day, she'd flash that smile instantly and
3 you would feel better. You'd find yourself smiling, too. Robin
4 could come home and destroy the order of the den in two
5 minutes. She would have one shoe here and the other there, a
6 glass here, a plate there. She would drop her purse and keys in
7 the hallway when she's entering while yelling, Mommy, I'm here
8 or home, and sometimes she would say, oh, it's a blizzard
9 outside. She hated the cold. Her bedroom was always in
10 disarray, but she knew where everything was. Robin never went
11 anywhere without telling me where she would be, and if she would
12 be going, if she was going to be late, she would always call.
13 She was a responsible and considerate person, very precise and
14 outspoken, very quick to learn. Robin was a snappy dresser.
15 Everything matched and every hair was always in place. A good
16 dancer, she loved music, especially gospel. Breakfast was her
17 favorite meal. She loved potatoes, she loved bread and she
18 loved broccoli, spaghetti. She had -- we had our spats and lots
19 of disagreements like all mothers and daughters do. She always
20 treated me with respect and demanded that everybody else do the
21 same. Robin and her brothers could really rock the house with
22 laughter. They loved her so much. There was always
23 nothing -- there was nothing they wouldn't do for each other.
24 Robin's brothers can't understand why she kept so many important
25 things from them. I can only think that it was because she
300
1 didn't want them to be in trouble. That's how she thought,
2 because they would have done anything. Robin was a
3 conscientious person and a punctual person, on time for work, 15
4 to 30 minutes early, and bills paid on time, a month in
5 advance. She loved nice things and wanted the best. Robin
6 should have been allowed to live an abundant life. When she was
7 out with her friends, I never wondered what she was doing. I
8 could always trust her to be good and do the right thing. She
9 graduated from high school, got her computer degree from UCVI
10 and I was really proud of her, I always was. Robin loved church
11 and the Lord. She strayed a little bit when she met Mark, but
12 she always prayed and attended church. I could call her with a
13 problem and say, help me pray, Robin, and she'd say, okay,
14 Mommy. She'd lead me around like I was her child, holding my
15 hand and protecting me and taking care of me. She was always at
16 my side. Even when she was at her place, it was, wait until I
17 get there, Mommy, before you go, okay, I'm going with you. I
18 miss the 11:30 call every night to tell me goodnight and that
19 she loved me every night. Every night at 11:30, she would call
20 me and tell me goodnight. I'm still listening for that call.
21 Oh, God. Every Toyota that goes by that looks like hers, I
22 still watch it out of sight. It says Robin. I still listen for
23 that call, although I know it's never going to come. But I
24 wish, I wish, I wish. Robin was not a faultless child. She had
25 plenty of them, but she was a compassionate child and she never
301
1 gave me a moment's trouble. She loved her Mommy, and I loved
2 her so very much. Yes, I could go on and on about my little
3 girl Robin and Kenny and Sydney's sister. It's only because I'm
4 just so empty.
5 That's all. I would like to say -- I'm sorry, could I
6 say something?
7 Q. Please.
8 A. I would like to say that Robin was a productive person
9 in society. She wanted a good life, she wanted nice things and
10 she wanted to move forward. It's just so hard to imagine her
11 being gone, and I love her so much, I still love her.
12 MR. CONRAD: That's all I have, Judge.
13 THE COURT: Cross?
14 (No response.)
15 THE COURT: Thank you, ma'am, you can come down.
16 Any other witnesses today?
17 MR. CONRAD: Can I have a minute, please.
18 (Pause.)
19 MR. CONRAD: Your Honor, there remains at this point one
20 exhibit that has not been introduced into evidence which we wish
21 to introduce, and I don't believe there is an objection from
22 defense counsel. Government's Exhibit 64A is a judgment of the
23 State of North Carolina, Mecklenburg County, State v. Aquilia
24 Barnette, for breaking and entering, November 8th, 1993, and we
25 would move admission at this time of that exhibit.
302
1 MR. LAUGHRUN: Judge, that's misdemeanor breaking and
2 entering.
3 THE COURT: 64?
4 MR. CONRAD: 64.
5 MR. LAUGHRUN: Misdemeanor breaking and entering.
6 THE COURT: You do not object to it?
7 MR. LAUGHRUN: No, sir.
8 THE COURT: Thank you, no objection. Anything further?
9 MR. CONRAD: And we have no more evidence.
10 THE COURT: The government is resting at this time?
11 MR. CONRAD: Yes, sir.
12 THE COURT: Thank you.
13 Members of the jury, we're going to let you go for the
14 day. Come back again on Monday for the remainder of the case.
15 Appreciate your time today, and I hope you have a nice weekend.
16 Do not discuss the case with anyone outside the courtroom, read
17 anything about it, look at anything on TV about it. Have a nice
18 weekend, and we'll see you Monday morning at 9:30.
19 Can everybody hear me all right? I'm getting kind of
20 hoarse this afternoon. 9:30 Monday morning, thank you so much.
21 (The jury left the courtroom.)
22 THE COURT: All right, Mr. Laughrun.
23 MR. LAUGHRUN: Judge, if I may, before I begin, we had,
24 I believe it was after Mrs. Hogue's's testimony, I believe, we
25 had a bench conference with Your Honor in which we moved for a
303
1 mistrial, that her testimony was beyond the scope of the notice
2 given to us and beyond the hearing that we had with your earlier
3 this week. Your Honor overruled that objection. We again move
4 for a mistrial and ask that the Court remove this matter from
5 the jury's consideration, declare a mistrial and impose a life
6 sentence on all three counts. We also, Judge, renew our
7 previously made objections with the utmost respect to the Allen
8 family and the Williams family for their loss.
9 THE COURT: Mr. Laughrun, could you speak up just a
10 little bit?
11 MR. LAUGHRUN: Again, Judge, in deference to the obvious
12 pain and suffering these folks have endured, move to renew our
13 objection to the cumulative effect of the victim impact
14 testimony, and ask again, Judge, that you strike that testimony
15 as being cumulative under Rule 403 and prejudicial and violative
16 of the defendant's due process rights, and would ask that you
17 again remove this from the jury's consideration and impose a
18 life sentence on all three counts, if Your Honor please, which I
19 believe you have the authority to do.
20 THE COURT: All right, sir. Do you want to respond,
21 government?
22 MR. CONRAD: No, sir.
23 THE COURT: Mr. Laughrun, I don't think that the --
24 MR. LAUGHRUN: I'm sorry?
25 THE COURT: I'm sorry, I'll talk a little louder for
304
1 you. I don't believe that the proffer from the government can
2 include all of the testimony of these witnesses. They have
3 given you a general proffer document filed on January 27th,
4 1998. The government's proffer concerning the victim impact
5 statement gave you an overview of what was intended to be
6 presented by the government as to the victim impact statements
7 and aggravating circumstances, I guess. Bob Allen, the proffer
8 was that he's the murder victim's father, it's anticipated he
9 will testify about the special relationship he had with his
10 youngest son, plans he had for him to live next door, things
11 they did, used to do -- excuse me, the things they used to but
12 no longer can do together such as hunting and other hobbies,
13 pride he took in his son's accomplishments and his work, hopes
14 he had for him in the future, the anguish he went through, the
15 days looking for his missing son and dealing with the family
16 grief, pride and gratitude the family felt in felt in receiving
17 friends at the funeral service, donations in his name and the
18 memorial playground installed in his name at the church, the
19 nightmares concerning Donnie. All of that I think was testified
20 to, and I don't believe there was anything over and above that
21 which could be said to be testified to by Mr. Allen.
22 Shirley Allen, Donnie's mother, testified to his
23 difficult birth, growing up, his positive attitude, his love for
24 people, his love nor golf, his love for his new car, her grief
25 at the learning of her son's death, the difficulty dealing with
305
1 birthdays and holidays and how much she misses him, Donnie's
2 involvement in the family and at the church and how much he
3 missed -- and how much he is missed and how the church honored
4 him -- well, they didn't put that in because we discussed that
5 the other day. How he is missed at his best friend's wedding on
6 August 1996 and special things they did to honor him. They
7 would show the jury a photographic album of a few special
8 pictures of Donnie, read a poem that comforts her, entitled "I'm
9 Free."
10 Denise Allen testified as to her efforts to circulate
11 flyers with Donnie's picture after learning of his death, her
12 relationship with him, love he had for her two sons, especially
13 the things he did for her special needs child Brandon, about his
14 taking out a life insurance policy naming her as the
15 beneficiary. Finally, she would show a brief, less than
16 three-minute video of Donnie enjoying his family.
17 Dennis Allen testified as to the relationship with his
18 brother growing up, fun times they had together including
19 fishing, his last conversation with Donnie, and the interest in
20 going into business together, his efforts to locate Donnie and
21 how he dealt with the family and their grief, also some
22 photographs and a videotape there.
23 As to Robin Williams, she testified as to the
24 relationship with her only daughter, how proud she was of her
25 many accomplishments and the hope she had for her future,
306
1 marriage, a lot of grandbabies, difficulty she had on Robin's
2 birthday and holidays, and how she publishes a memory of her
3 daughter in the paper each birthday telling her how much she
4 misses her, growing up years, her pride in Robin's work at
5 Roanoke Community Hospital, how proud and gratified she was at
6 the outpouring of love by coworkers and patients including cards
7 which she has at UVA and the gift of a nurse's coat, I believe
8 that was put in, signed by her coworkers after her death, a few
9 photographs of her daughter, poem she wrote to her daughter
10 after her death entitled "Stuck at 23" that helps her cope with
11 her loss, her sons' difficulties with the loss and how that
12 affects her, her last church service with her daughter, how she
13 walked around the house and reminded Robin -- and is reminded of
14 Robin, and her victim impact statement entitled "More About My
15 Robin" and how she can't go to the grave site.
16 Kenny Williams, said he will testify as to his
17 relationship with his sister, how she always wanted a sports car
18 and after her death he bought one and put her name on the
19 license plate and how he drives around in it thinking about how
20 much he misses her.
21 Sydney Williams will testify as to the relationship with
22 his sister.
23 Those were the proffers. Obviously, the testimony
24 itself is a little bit more than that, but I don't think it went
25 beyond what the government had proffered to you. If there is an
307
1 objection to it, the objection is overruled, motion for mistrial
2 is denied.
3 Now, other matters we took up, the defense objected but
4 the prosecution -- well, that's the thing we just got through.
5 One thing we did take up at bench conference was that
6 the government had planned on putting in, I think, was it a
7 sleeve from the fire?
8 MR. CONRAD: It's a glove that Robin Williams had to
9 wear after the fire, yes, sir.
10 THE COURT: Glove she had to wear after the fire. The
11 Court sustained that objection on the grounds it was not
12 necessary and not part of the case.
13 Now, one thing I do want to put on the record is that
14 the Court had indicated an offer to defense counsel to
15 cross-examine the family, both of these families, the Allen
16 family and the Williams family. I didn't say anything about
17 cross-examination, defense didn't say anything about no
18 questions, but they shook their head and indicated that there
19 were no cross-examine. I just wanted to put that on the
20 record.
21 Is there anything further, Mr. Laughrun?
22 MR. LAUGHRUN: Judge, has the government rested?
23 MR. CONRAD: Yes.
24 THE COURT: The government's rested.
25 MR. LAUGHRUN: Judge, I'd ask the Court to consider, I
308
1 think we are entitled, Judge, at this point to a Rule 29 motion
2 as to the matters alleged in what I call the death notice. It's
3 the notice of intent to seek the death penalty filed August 7th,
4 1997. The government's alleged the defendant and his future
5 dangerousness. I'm just reading you what they've alleged. The
6 defendant who has committed a pattern of violence toward others
7 is likely to commit criminal acts of violence in the future
8 which will result in a continuing and serious danger to
9 society.
10 Now, if you take that, that's out of the statute and out
11 of Simmons versus South Carolina, a defendant who has committed
12 a pattern of violence toward others, period, that's a correct
13 statement, and they've proven that beyond a reasonable doubt, no
14 question. It's not enough. Likely to commit acts of violence
15 in the future, there is absolutely no evidence of that.
16 THE COURT: Pardon?
17 MR. LAUGHRUN: There's no evidence of that. Every act
18 of violence they have shown to Your Honor is domestically
19 related or has its roots in some domestic issue. There is no
20 evidence he has not been anything but a model prisoner. And I
21 guarantee you, as thorough as they've been in this case, if
22 there was one indicia of anything about this defendant being a,
23 for lack of a better word, a cutup, a misfit, anything but a
24 model inmate, you would have heard about it. The burden is on
25 them, and that deletes, Judge, every act of violence in
309
1 Paragraph 3 of the nonstatutory aggravating factors because
2 there's no evidence of any future dangerousness. You can't
3 speculate on it. Because you've done something in the past
4 doesn't mean you'll do it in the future. They've got experts
5 they could have called and said, yes, in my opinion he would be
6 a future dangerousness to society. No evidence of that. You
7 can't leap frog beyond a reasonable doubt to show that, and I
8 would ask Your Honor to strike that death notice in Paragraph 3
9 and move to strike that from the proceedings, if Your Honor
10 please.
11 MR. CONRAD: We can't put on evidence of the future. We
12 can't -- we don't know what the defendant is going to do in the
13 future. But we can offer this jury what he's done in the past,
14 and they can draw inferences from that evidence as they are
15 entitled to do. And that's what we have done, we have showed a
16 pattern of violence just like we alleged in our notice. And I
17 would contend to Your Honor that's all we can do, and that we've
18 met our burden under the statute and you should allow us to
19 argue that aggravating factor to the jury.
20 THE COURT: Mr. Laughrun, we can't predict the future.
21 Nobody can predict the future, what will happen or what will not
22 happen in anybody's life. But the evidence was put on which
23 would indicate or certainly allow the jury to find that the
24 defendant does have a dangerous -- or would be dangerous if he
25 were out in the public after this time.
310
1 MR. LAUGHRUN: Judge, that's my point exactly. The best
2 we can ever hope for --
3 THE COURT: Pardon?
4 MR. LAUGHRUN: What you just said, if he were out in the
5 public, that's not going to happen.
6 THE COURT: Well, I mean if he were -- whether he is out
7 in the public or still available -- listen, Mr. Laughrun, there
8 is a possibility. President Clinton or some other president
9 could commute that sentence. You have no idea what is going to
10 happen in the future.
11 MR. LAUGHRUN: But, Judge, you have to tell this jury
12 life without possibility of release means just that.
13 THE COURT: I know that, that's what we've done.
14 MR. LAUGHRUN: Right, I understand.
15 THE COURT: But I also have to realize that that doesn't
16 really mean that, because it could happen.
17 MR. LAUGHRUN: Well, but what you just said, Judge, we
18 can't predict the future, if you say, yes, he could commit
19 future acts, yes, he could, and there is no -- you've got to
20 carry the burden. It's a tie. If it's a tie, they don't carry
21 their burden. And that's what it is, just what you said. I
22 agree 100 percent with what Your Honor said. You can't predict
23 the future, he could, he could not. So it's a tie, and a tie
24 goes to us.
25 THE COURT: You could draw conclusions, though, based on
311
1 the past as to what the future may bring, and that's all we can
2 do at this point.
3 MR. LAUGHRUN: Judge, I guess in argument of the Rule 29
4 motion, if you have to draw a conclusion, it shows they hadn't
5 met their burden.
6 THE COURT: Well, overrule your objection, deny your
7 motion, and I think --
8 MR. LAUGHRUN: In that notice, Judge --
9 THE COURT: Pardon?
10 MR. LAUGHRUN: In that notice, further, they have
11 alleged that the defendant has low rehabilitative potential,
12 quote, the efforts and treatments to rehabilitate the defendant
13 have failed. No evidence of that.
14 MR. CONRAD: Your Honor, we are withdrawing that
15 aggravating factor, low rehabilitation. We didn't offer any
16 evidence of it, and we move at this time to withdraw it.
17 THE COURT: All right, sir.
18 MR. LAUGHRUN: Judge, and for the record, we would move
19 to strike also the aggravating factors specifically mentioned by
20 statute and the nonaggravating factors which are specifically
21 mentioned by statute. Judge, briefly, if we could be heard on
22 those, the single act of violence issue which appears on Page 3
23 of the notice, multiple intentional killings in a single
24 criminal episode, we contend to Your Honor this was not a single
25 criminal episode, that it was broken up by time, broken up by
312
1 distance, it was broken up by jurisdiction. There was a, quote,
2 cooling off period. The evidence is in Mr. Barnette's words,
3 that I sat out in front of Mrs. Williams house and thought about
4 what I was going to do. So there is a break in that, and we'd
5 move to strike the multiple intentional killings in a single
6 episode and the statutory factors in the death notice, if Your
7 Honor please.
8 THE COURT: Government?
9 MR. WALKER: Your Honor, we had indicated in counsel's
10 presence this morning that we had pled that statutory
11 aggravating factor of multiple intentional killings in a single
12 criminal episode, we pled that as well in the alternative as a
13 nonstatutory aggravating factor, that being that the defendant
14 killed two people. I explained to Your Honor, I believe, on the
15 record that the government intends to prove the nonstatutory
16 aggravating factor that not only that the defendant
17 intentionally killed Donald Allan, but that he also
18 intentionally killed Robin Williams.
19 And so, Your Honor, we have already informed the Court
20 and counsel that we are not proceeding on that statutory
21 aggravating factor, but instead we are proceeding on a
22 nonstatutory aggravating factor that the defendant killed two
23 people, thereby eliminating the need that we prove that those
24 intentional two killings were during any single criminal
25 episode.
313
1 MR. LAUGHRUN: Judge, I missed that. I thought that was
2 just for one. They've alleged it twice. And as long as they
3 are withdrawing it in both, I have no objection, obviously no
4 objection to taking it out.
5 THE COURT: All right.
6 MR. WALKER: We have, Your Honor, and we intend to argue
7 that nonstatutory aggravating factor of the defendant
8 intentionally killed two people in promotion of a death sentence
9 for Count 7, a death sentence for Count 8 and again, for Count
10 11.
11 THE COURT: All right, sir.
12 MR. LAUGHRUN: Judge, finally we would again renew our
13 objection to the death notice. You've already heard our
14 arguments on that, don't care to be heard any further.
15 THE COURT: All right.
16 (Pause.)
17 MR. LAUGHRUN: Judge, for the record, we move under Rule
18 29 to strike any statutory and nonstatutory aggravating factors
19 which would leave the Court with no option but to impose a
20 sentence of life without the possibility of release and ask Your
21 Honor to impose such a judgment.
22 THE COURT: You want to strike what now, Mr. Laughrun?
23 MR. LAUGHRUN: Both aggravating and non -- statutory
24 aggravating and nonstatutory aggravating factors, if Your Honor
25 please.
314
1 THE COURT: All right, sir, overruled, motion denied.
2 Anything else?
3 MR. CONRAD: No, sir.
4 THE COURT: Anything else from the defense?
5 MR. LAUGHRUN: No, sir.
6 THE COURT: All right, 9:30 Monday morning. The
7 defense, I assume, will be prepared. Mr. Laughrun, are y'all
8 prepared for Monday morning at 9:30?
9 MR. LAUGHRUN: We need to have a conference with Your
10 Honor and the government about a witness. We had a severe
11 medical problem, and we would like to talk to Your Honor in
12 chambers about if we could. We have given the government notice
13 this morning at about 9:00 o'clock, 9:15. There is a note from
14 a doctor we would like to take up with Your Honor.
15 THE COURT: Well, what I want to know is are we going to
16 be able to start at 9:30 Monday morning?
17 MR. LAUGHRUN: Yes, sir.
18 MR. CONRAD: Your Honor, I would ask to be heard about
19 9:15 on Monday morning with respect to that issue so that we
20 could digest the information they provided us and have a
21 response to the Court as to what our position would be.
22 THE COURT: I'm sorry, I didn't understand what you were
23 talking about.
24 MR. LAUGHRUN: Tell him --
25 THE COURT: Maybe we can do it back in chambers.
315
1 MR. LAUGHRUN: We can do it on the record. We have got
2 a witness, Judge, who two months ago was diagnosed with cancer.
3 She has cancer of the spine. She is a paraplegic. She is in a
4 wheelchair. She is under medication. We got a note from the
5 doctor yesterday. She's been interviewed by our investigator.
6 We gave the government a copy of her statement, a letter from
7 the doctor. She is on chemotherapy right now. Prognosis for
8 survival is not very good for the future. We've given that to
9 the government, and before we bring it to Your Honor, I guess we
10 will wait to see what their response is. We are requesting that
11 you let her statement be admitted through our investigator, and
12 I would analogize that to Your Honor let D.D. Burgess testify to
13 a statement that Kevin Daly gave and read the statement.
14 THE COURT: What does the government think?
15 MR. CONRAD: Your Honor, it's a six-page, single-space
16 interview that they gave us this morning before we started trial
17 and started putting witnesses up all day, and I haven't had a
18 chance to read it. I would ask the Court to allow us the
19 weekend to digest this and form an opinion -- form a position,
20 and I would ask the Court to delay any ruling on this motion
21 until 9:15 on Monday.
22 MR. LAUGHRUN: We have no objection to them taking the
23 time to read it.
24 THE COURT: Give them a chance to look at it, yes, sir,
25 thank you. Anything else?
316
1 MR. CONRAD: No, sir.
2 THE COURT: Mr. Williams?
3 MR. WILLIAMS: No, Your Honor.
4 THE COURT: All right, thank you, see you Monday morning
5 at 9:30.
6 (Court in recess.)
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