Before beginning his testimony, Byron Case was certified by the Court as a prior felony offender,1 based upon his 1998 guilty plea for Felony Stealing.
In his direct examination, Case gave his explanation of his pager's announcement,2 aimed directly and with hostility toward Anastasia WitbolsFeugen. Two other witnesses, Kelly Moffett3) and Tara McDowell,4 both testified about the same matter. Case stated his story of the events of October 22, 1997,5 and repeated his description of how Anastasia supposedly got out of Justin Bruton's car.6 Kelly Moffett had testified earlier how Case had formulated that story as an alibi after the murder.7
Case testified about the time in January 1999 when he spent 24 hours locked up on a suicide watch.8 Kelly Moffett testified earlier about that same event.9
Case told the jury how he and Justin Bruton drove Kelly Moffett back to her home on the night of the murder.10 Both Kelly Moffett11 and her mother, Debra Moffett,12 testified about that incident. Case described his visit to the apartment of his friend, Tara McDowell,13 later that same night. On cross examination, Case was reminded of Ms. McDowell's version of the visit,14 and backtracked on his original testimony.15
Case testified that he had helped Kelly Moffett run away from home in May 1997,16 with different details and inflections than Moffett's testimony,17 and that of her mother's.18
Case explained in his testimony why he and Kelly Moffett accompanied Justin Bruton when he went out to pick up Anastasia,19 contradicting Moffett's earlier testimony as to his motives.20
Case offered an explanation21 of the June 5, 2001 phone conversation between himself and Kelly Moffett;22 Moffett described the conversation much differently than Case,23 and Prosecuting Attorney David Fry gave his own analysis of Case's explanation.24
Case also offered certain testimony with some minimal documentation. He spoke of having had strep throat25 when Kelly Moffett called him on the night of June 5, 2001, but offered as proof a doctor's diagnosis which did not paint the same picture that he did in his testimony. The doctor's assessment was that he had strep throat, but his fever was described as 101° F (38.4° C), as opposed to his description of 103°. He claimed that his 103° fever caused him to be "out of it" when he spoke to Moffett. In other words, Case's testimony about how sick he was that day was supported only to the extent that he was sick, but not to the extent that he was so sick as being unable to understand a conversation. Case spoke of conversations he'd had with a counselor about being "co-dependent",26 though he gave no details or corroboration. Case also offered evidence to show that his car had been worked on for a bad water pump,27 but could only show that the car had been in the shop the week after the murder, and had nothing but his own word as to when and for how long the car was inoperable.
Please note that the boldfaced remarks are significant statements, either from the defendant or prosecution. Redfaced remarks note the more than three dozen times Byron Case stated in response to questions that he did not remember or poorly remembered pertinent facts. His actions from the stand in this matter are of interest because of his own description to Kelly Moffett of exactly how he employed that tactics with police, and how he advised her to do the same.
Page 1011       (Byron Case testimony)THE COURT:(The following proceedings were had in the courtroom out of the presence and hearing of the jury:)MR. FRY:Did you want to do this prior offender status situation, Mr. Fry?MS. CRAYON:We have to get into the box. The box has been very unforgiving.THE COURT:It might be more efficient if we do it right before the jury comes down.MR. FRY:Get it together. We'll do it then. Like I said, let's we'll concludethe evidence and see where it takes us and then we'll sort of formulate our strategy once the evidence is concluded. Anything else we need to take up?THE COURT:Not right now. We think we have the correct instructions.MS. CRAYON:Do I have verdict forms?THE COURT:You should have.I don't think I have verdict forms.
MS. CRAYON:Page 1012       (Byron Case testimony)THE COURT:There is a correction on the murder 2. There is a typo on the first page.You'll need a verdict form for the lesser also. One not guilty, but the lessers I need. Anything else? We'll see you all about then.(A noon recess was taken.)THE COURT:(The following proceedings were had in the courtroom out of the presence and hearing of the jury:)MS. CRAYON:Let's go on the record. Ms. Crayon, I believe at this point in time out of the hearing of the jury, it's your desire to put in evidence regarding prior offender status that's been alleged in the indictment?THE COURT:Yes, Your Honor.MS. CRAYON:I guess it's the information in lieu of indictment, actually.Your Honor, in line with the -- we filed a motion for leave to file an amended information, and I believe that was granted in April by you. And in supporting our request, I'm going to offer State's Exhibit Numbers 23 and 24 to the Court.
Page 1013       (Byron Case testimony)THE COURT:I'm going to ask the Court that, based on those exhibits, that you make a finding that the defendant is a prior offender under Section 558.016 in that he has been convicted of a felony as follows:
That on or about August 8th of '96, the defendant was convicted of a felony of stealing, a Class C felony, in case number CRI96-996FX in Division 1 of the Circuit Court of Clay County, Missouri.
In support of that I offer State's Exhibits 23 and 24 for the Court's consideration. I'm showing them to defense counsel at this time. 23 being the actual complaint that was filed and 24 being the judgment and sentence that was filed.MR. LANCE:All right. Mr. Lance, do you have any objection to me considering State's 23 and 24?THE COURT:No objections.MR. LANCE:All right. Do you have any record you wish to make?No, Your Honor.
THE COURT:Page 1014       (Byron Case testimony)MR. LANCE:All right. Based on the evidence that I have seen, I find that this defendant, Byron Case, with the same name and same birth date as the defendant in this case pending in Jackson County, Missouri, was charged with the crime of burglary in the second degree on or about the 16th day of May of 1996, and that subsequently, on the 30th of December 1998, defendant was sentenced to a reduced charge of stealing.THE COURT:Judge, I think they actually just dropped Count 1.Excuse me. They dropped -- that's correct. Count 2 was, in fact, stealing. Count I was dismissed. He pled guilty to Count 2. On December 30th 1998, he was sentenced to six months in the Clay County jail. Execution of sentence was suspended. He was placed on probation for a period of five years.
Further, that under law of the State of Missouri, that makes him a convicted felon, thus, he is subject to prior offender status, which effectively means that the issue of punishment will not go to the jury; and, should a guilty -- effectively in this case what it means, if there is a guilty finding on the lesser included offense and as to Count 2, that the sentencing issues will be left to the Court. Anything further?
MR. LANCE:Page 1015       (Byron Case testimony)THE COURT:Nothing further.MR. LANCE:Any reason we shouldn't bring the jury down?MS. CRAYON:No, Your Honor.THE COURT:No, Your Honor.MR. LANCE:Wait. One thing. Did you want to make any record with your client about the tesfifying situation?THE COURT:I don't request that.THE DEFENDANT:okay. I'm not going to make any record with him other than, Mr. Case, I do advise you now, in open court that as a defendant, you have the right to remain silent and not testify and you also have the right to testify if you so desire. If you do testify, obviously you'll be subject to cross examination. Do you understand that?THE COURT:Yes, I do.THE DEFENDANT:Is it your desire to testify in this cause?Yes, it is.
THE COURT:Page 1016       (Byron Case testimony)Let's bring the jury down.THE COURT:(Tbe following proceedings were had in the courtroom in the presence and hearing of the jury:)MR. LANCE:Everybody please be seated. Mr. Lance, you may call your next witness.THE COURT:The defense calls Byron Case.BYRON CASE, having been duly sworn by the Court, testified:Mr. Case, if you would step forward, if you would, sir.
DIRECT EXAMINATION BY MR. LANCE:
Back to top
Q.A.Good afternoon. For the record, please state your name.Q.Byron Case.A.Mr. Case, how old are you?Q.I'm 23.A.What's your address?Q.6608 East 96th Terrace.A.In the City of?Q.Kansas City, Missouri.A.Did you shoot and kill Anastasia?No.
Q.Page 1017       (Byron Case testimony)A.Were you friends with Anastasia?Q.Yes, I was.A.And you attended her funeral?Q.Yes, I did.Back to topYou just said you're friends with Anastasia. What about the voice message you once had on your pager where you said if this is Anastasia -- well, first of all, what did you put on your pager?
A.Q.At one point in time I had left an outgoing voice message on my pager, which said something to the effect of: This is Byron. Please leave a message unless this is Anastasia, in which case I won't -- something to the effect of I won't bother returning your call.A.All right. If you tell the jury she was your friend, why would you leave that kind of a message on your pager?At the time there was -- it was a situation you kind of had to have been there I think to really understand, but it was like she and Justin had this relationship that, as you've already heard, has been just on-again-off-again. And every time they broke up, she would always either confide in me or in Tara or in other friends.
Page 1018       (Byron Case testimony)Q.And it got to a point where she would call as many as 10, 15 times day, and it really put a strain -- I mean, it was difficult to be -- to be honest, it was difficult to maintain friendship with her just because of the fact that she was so obsessed with Justin and keeping their relationship together that -- I don't know.A.That's fine. During the last few weeks before Anastasia's death, did you notice any unusual behavior by Justin Bruton?Q.Not really much more than usual. I guess he had been using a lot of drugs more recently, I suppose. There was one incident, I believe Tara McDowell spoke on that while she was up here, but where he had taken a very large quantity of LSD. And for probably four days, five days, was just pretty much out of his mind. I don't know. We were really worried about him. He was hallucinating, and I don't know. Other than that, though, I mean there wasn't really anything that was more unusual than normal.A.What about the story about voices coming up through the floor?Q.Yeah. I remember that.Was that anywhere near the proximity to the time of Anastasia's death?
A.Page 1019       (Byron Case testimony)Q.I believe So. I don't recall specifically.A.By the time when Anastasia's death, in October of '97, was Justin Bruton still going to classes over at UMKC?Q.No. I don't recall specifically if he had just stopped going or if he had officially dropped out, but he wasn't going. I know that.A.Did you ever hear about any plans or schemes to rob his parents?Q.Yes, and -- well, yes. It was never -- it was never something that we -- Justin was always coming up with something, and most of the time I think it was safe to say that most of the time it was just kind of -- it was just joking around. I know that sounds -- I don't know. It sounds kind of twisted, but he, you know, he never -- we knew he wasn't going to go through with anything. It was just -- he had this thing about planning everything.A.When he mentioned robbing his parents, did you ever take that seriously?Q.No.Did you ever get in the car one night with him and head for Oklahoma to do that rob them?
A.Page 1020       (Byron Case testimony)Q.No, no, I didn't.A.Do you know if Justin ever got in the car one night and headed to Oklahoma to do something like that?Q.I had heard from both him and Anastasia that they had gone -- they had gotten in the car and Justin was I guess seriously considering this. He had the intention, I suppose, of doing this, but Anastasia basically, from what I heard, she talked him out of it and convinced him to just turn the car around. I don't know. From what she said, they didn't go very far so.A.What about this other plan or scheme to put a bomb in a church or do something to the church in Independence?I don't really remember the specifics about that. That was just kind of another one of his -- I mean, he did have a plan about that, but you know, it was so ridiculous. I mean, no one -- I mean, he was talking about plastic explosives, I think, and we were all kind of thinking, well, that's -- you know, how is a 20-year-old guy who is living on the Plaza, how is he going to get a hold of plastic a explosives? So it was so outlandish, we never thought anything about it.
Q.Page 1021       (Byron Case testimony)A.Let me switch topics for a second and ask you about the two audiotapes. There were two audiotapes played for the jury at this trial.Q.Uh-huh.A.And do you believe that was your voice and Kelly Moffett's voice on the tapes?Q.Yes, I believe so.A.And this would have been June 5th and June 7th of 2001; is that your understanding?Q.Yes.A.Now, was there anything unusual happening with your health in that same time frame?Q.Yeah. I had been -- I think safe to say I was bedridden. I had had fever for about a week beforehand I believe, before those phone calls anyway, and I had been vomiting and just basically sleeping and, you know, sweating. Sweating it off.A.Did you ever obtain services of a doctor?Q.Yes, I did.A.Can you remember the date that you finally went to the doctor. Would it help to --Q.Yes.I'm going to hand you what's been marked Defendant's Exhibit 31 and ask you if you've ever seen that document before?
A.Page 1022       (Byron Case testimony)Q.Yes, I have.A.Is that a reflection of medical records of when you went to the doctor that week?MR. LANCE:Yes, it is.MR. FRY:At this time defense offers Exhibit 31.THE COURT:No objection.MR. FRY:You say no objection?THE COURT:No objection.BY MR. LANCE:31 shall be admitted into evidence.
(Defendant's Exhibit 31 was received into evidence.)
Q.A.Mr. Case, does Exhibit 31 reflect the date that you went to the doctor's office?Q.Yes. It was June 6th of 2001.A.When you went to the doctor June 6th, did you receive a diagnosis of any kind?Q.Yes. They told me that -- well, the doctor told me that I had a fever of approximately 103 and I had strep throat, and he placed me on antibiotics and I believe painkillers as well.All right. And you said that the doctor gave you that on June 6th?
A.Page 1023       (Byron Case testimony)Q.Yes.A.So that, when Kelly Moffett called you on the first tape, that was June 5th you think or --Q.That's correct.A.Almost midnight?Q.I believe so, yeah.A.On June 5th in the late evening hours, what were you doing just before Kelly Moffett called you?Q.I had been sleeping.Back to topAll right. When she calls you and starts talking about the shooting of Anastasia, is there any particular reason why you did not deny that you had committed the shooting of Anastasia?
A.Q.To be honest, I was so out of it I didn't really remember most of the conversation , but I would say that I think I may have just misunderstood what she was talking about, exactly. I assumed -- I don't know. You know, she had called me many times before upset, and I just kind of thought that this was just another one of those phone calls where she was calling and she was upset and wanted my input.All right. Is it fair to say you were awakened and right into the phone call?
A.Page 1024       (Byron Case testimony)Q.Yes.A.And you had been sick with strep that entire week?Q.Correct.A.Switching topics back to the week of Anastasia's death, October 22nd 1997, at the time that Anastasia was murdered, did you have a car at the time?Q.Yes, I did.A.Was your car available to be driven at that time?Q.No, it wasn't.A.What was the problem with the car?Q.It was broken down. At the time, I didn't know what it was. I believe there was the water pump had gone out, and I couldn't drive it more than five minutes before it would just overheat and die.A.Was the car broken down before October 22nd that night?Q.Yes, I believe it was.A.Do you remember when you finally got it back out of the shop?No. Although I'm inclined to say it would have been probably around the 27th or so, 28th of that same month.
Q.Page 1025       (Byron Case testimony)A.27th or 28th of October?Q.I believe so.A.Let me ask you some specific questions about the day of October 22nd. Do you remember where you had been earlier in the day before you met up with Kelly and Anastasia? Where had you been earlier in the day October 22nd?Q.I had been at Justin's condominium and we had gone -- at one point I believe it was in the -- I would have to say fairly early afternoon, Justin either received a phone call or made a phone call to Anastasia and she was upset. They were going through another one of their periods where they would break up and then be back together.
I believe at the time they were broken up. And there was a discussion on the phone. My impression was that she was just arguing with him over the relationship as she more or less always did. And she wanted to get together with him, it was my understanding, to meet and discuss the relationship in person.A.All right. Had you been anywhere earlier that day with Justin?Well, later that afternoon, after that phone call took place, yeah, we did go out.
Q.Page 1026       (Byron Case testimony)A.Do you remember where you stopped?Q.We went over to -- I believe it was out on -- roughly I think 97th and Quivira. There is a video game store out there. We had gone in there to trade-in some of his old games that he had brought back from Tulsa that weekend.A.You were aware he had been to Tulsa the previous weekend?Q.Yes.A.Did you sell anything at the video store?Q.Yes. We traded in some things.A.I mean, did you personally trade or was it Justin's?Q.No, I didn't.A.Justin sold some of his old video games?Q.Right.A.And this is the place called Funcoland.Q.Yes.A.Now, at that point, while you were over at Funcoland over in Kansas, at that point did Justin have plans to go meet Anastasia?No, he didn't. They had made plans I believe earlier in the day, and Anastasia had -- they had attempted to make plans. I wasn't entirely clear on what had happened there.
Page 1027       (Byron Case testimony)Q.But they had attempted to make plans, I believe, and then she had said that she couldn't get a ride, so he basically said, "Okay, well, I'm not going to go pick you up, so let's just go to do this some other day."A.You had the general impression their plans were canceled at that point?Q.Yes.A.How did the idea come up that you had to go over to Independence, Missouri, after all?Q.That wasn't until some time later. We had gone from Funcoland out in Lenexa. While we were out there, I suggested to Justin that we stop by and pick up Kelly, because it was just essentially on the way. I mean, it was less than I believe five miles from where we were already. So we picked Kelly up and returned to the condo and -- let me think here. She had -- I believe there was a message on the answering machine when we returned to the condominium from Anastasia saying that she had already gotten a ride to meet him, but, you know, obviously, we hadn't received that message.A.So now plans are back on?Right.
Q.Page 1028       (Byron Case testimony)A.But Justin didn't know it until he checked the answering machine?Q.No, no.A.And at the time you got the message that Anastasia did get a ride, who all is at the condo at that point?Q.It was myself, Justin and Kelly.A.While the three of you are together, are you coming up with some plan of how you can go kill Anastasia?Q.No.A.Were there any weapons in Justin's car that day?Q.Certainly not that I was aware of.A.How did the idea come up that you were to meet Anastasia at the Dairy Queen in Independence?Q.That's where she had phoned from. Apparently there was a pay phone in front of the Dairy Queen and she had -- apparently she had -- I'm sorry, no. She had called originally from her parents' house. Or she called again later once we had already been at the condominium. She had called from the Dairy Queen pay phone asking where he was. I believe that's -- yeah.A.Did Justin get that call or was that a message?No. He did receive that second phone call, yes.
Q.Page 1029       (Byron Case testimony)A.Who made the request to meet her at Dairy Queen?Q.She did.A.Anastasia made the request?Q.Correct.A.And did you even know where the Dairy Queen was at?Q.No, I had no idea.A.Did Justin know where this Dairy Queen was at?Q.No, I don't believe he did.A.How did you find the Dairy Queen?Q.She had -- Anastasia had given us directions.A.That afternoon, did you and Justin together ever ask Kelly Moffett to make a phone call to get Anastasia to go over to the Dairy Queen?Q.No.A.So at some point you leave Kansas and head for Independence?Q.Missouri. Because we had already left Kansas.A.I'm sorry. You're at the condo. So at some point you decide to leave the condo and go to Independence?Q.Right.A.On the way to this Dairy Queen in Independence, was anybody in the vehicle drinking?No.
Q.Page 1030       (Byron Case testimony)A.Justin is driving?Q.Correct.A.It's his car?Q.Right.A.On the way to the Dairy Queen in Independence, was anybody doing drugs?Q.No.A.Was anybody planning to kill Anastasia?Q.No.A.What happened when you arrived at the Dairy Queen?Q.When we got there, I believe we all got out of the car and sort of walked along a side of the building. I vaguely recall having seen her sitting just inside the door. It had large plate glass windows. Anastasia saw us walking up. Got up. Walked around to the -- walked around to the entrance and met us just outside the door, I believe.A.Everybody got in Justin's car?Q.Yes.A.And you proceeded to the Mount Washington --Q.Yes, we did.A.-- which is right across the street?Right.
Q.Page 1031       (Byron Case testimony)A.When Anastasia came walking out of the Dairy Queen, what was her general attitude?Q.She was very upset with Justin for being late, with everyone. Usually, when Anastasia got upset, if you were in the area, you were kind of in a crossfire.A.I understand. Did Anastasia appear upset that you and Kelly were there that evening?Q.I know that she had expressed that she didn't want us to be there. So I'm not -- she didn't specifically say that to me, but that was my impression.A.Your impression was she wanted to speak to Justin alone?Q.Right.A.What happened as you drove over into Mount Washington Cemetery?We drove into the cemetery, and there was one particular place that she, I guess, had originally agreed to meet Justin. We drove around to that building. It was already dark at this point, so it was fairly dark in the cemetery. And we knew that -- well, I knew at least that most cemeteries, at dusk, they usually close their gates.
Page 1032       (Byron Case testimony)Q.So when a car pulled up behind us, I suggested to Justin that we just continue on.A.You assumed it was the grounds keeper?Q.Yes, I did.A.At that point did you drive through Mount Washington and exit Mount Washington Cemetery?Q.Yes, we did.A.Justin still driving?Q.Yes.A.Where was Anastasia seated in the vehicle?Q.She was in the front passenger seat.A.Where were you in the vehicle?Q.I was behind her.A.Where was Kelly Moffett sitting?Q.She was behind Justin.A.After you left Mount Washington, did you drive to the nearby Lincoln Cemetery?Q.No, we did not.A.Did you go there at all that night?Q.No.A.On October 22nd 1997, did you know where Lincoln Cemetery was located?Q.No. I had no idea.A.Ever heard of it?No.
Q.Page 1033       (Byron Case testimony)A.Shortly after driving out of Mount Washington, did you drive west on Truman Road?Q.Yes.A.Did anything unusual happen at the stoplight at I-435 and Truman Road?Q.Yes. Anastasia -- well, Anastasia and Justin had been arguing in the car pretty much since we picked her up at the Dairy Queen. And at that point, Justin made a comment that -- I guess she -- kind of made her blow her top, and she got out of the car at the stoplight.A.I know it's been five years, but for the benefit of the jury that was not there, can you try to remember that last comment that made Anastasia blow her top?Q.It was something to the effect of -- well, Anastasia had asked Justin something to the effect of: Why don't you love me anymore? And Justin had said: I don't know. That was pretty much it. I think it was more the way he said it and they were looking at each other at the time and I think it just kind of hit home.A.All right. When the car stopped at 1-435 stoplight, what happened?Anastasia got out of the vehicle, and I presume started walking.
Q.Page 1034       (Byron Case testimony)A.You didn't pay particular attention to where she was walking?Q.No. I just -- after they made that comment, Kelly and I were sitting in the back seat, and I just kind of looked over at Justin and was waiting to see what he was going to do. I mean --A.Did he turn around and try to go get her or anything?Q.No.A.As she was getting out of the car, did you say anything to Anastasia?Q.No, I didn't.A.Did you know which direction Anastasia walked off?Q.No.A.Where did the three of you go after Anastasia had jumped out of the car?Q.Well, we waited briefly at the stoplight and then nobody really said anything. Justin just kind of looked at the road, and we just drove back to his condo.Did anything unusual happen while you were back at the condo?
A.Page 1035       (Byron Case testimony)Q.No, not really. We had just -- we more or less just walked in the door. I got a page and it was from my friend, Abraham. I called him and he had said that he had some stuff -- that he needed a favor he wanted us to do. He wanted me to -- he specifically, I don't know that he was aware of my car situation, but he needed to ask if it was possible for us to take some stuff over to his ex-girlfriend's house, Tara McDowell, and also pick up some of his belongings as well.A.Who spoke to Abraham Kneisley on the phone?Q.I did.A.Did you agree to do this favor for Abraham Kneisley?Q.Yes, I did.A.Even though you didn't have a car?Q.Right. Well, I spoke with Justin just briefly, and he said yeah, that's fine.A.So did the three of you then leave Justin's condo?Q.Yes, we did.A.Where did you travel next that evening?We drove directly over to -- well, it wasn't Abraham's house.
Page 1036       (Byron Case testimony)Q.It was he was housesitting for his friend, Paul Riot, who I kind of knew or had met in passing at least, but his friend was out of town so he was there by himself, and we just went over there.A.Did you and Kelly and Justin go in?Q.Yeah, we did.A.So Abraham Kneisley saw all three of you together?Q.Yes.A.Were you able to pick up this packet or belongings or whatever to deliver?Q.Yes. It was just a paper sack, but I think it had some pants or something and a letter maybe. I don't know. But we did pick it up. I'm sorry.A.Sure. And did you go directly from this location where Abraham Kneisley,-- did you go directly then over to Tara McDowell's to deliver the package?Q.No. It was getting too late. Kelly had to be home by 9 and so we basically -- we were ready I think we were already concerned about running late, Justin was, because he drives -- drove kind of slow. So we headed directly over to Kelly's parents' house and dropped her off at home.At Kelly's parents place, did you yourself make a big show of the fact that Anastasia had jumped out of the car and walked away on foot?
A.Page 1037       (Byron Case testimony)Q.I mentioned it, but I certainly wouldn't say it was a big show.A.Was that very, very unusual behavior from Anastasia at that time?Q.Yes and no. It had never happened before certainly, but I mean, when she would be over at Justin's condominium and they get in an argument, she would just kind of get upset and storm out, and she would go on a walk on the Plaza for awhile and then eventually she would come back.A.All right.Q.So along those lines, I guess storming out, no, but certainly getting out of the car, that was something odd.A.After you dropped off Kelly Moffett at Kelly's home, where did you travel to next that evening?Q.We dropped Kelly off and then drove to Tara McDowell's apartment and dropped off the stuff that Abraham -- or that we picked up from Abraham's house.A.So you did meet Tara McDowell face to face that evening?Q.Yes.Do you know how long you stayed at Tara McDowell's apartment?
A.Page 1038       (Byron Case testimony)Q.Brief, very brief. We handed her the stuff, talked for a little bit. They had broken up, and I was kind of siding towards -- since I had known Abraham longer, I was kind of siding more toward him. So we didn't really speak a great deal while I was there.A.At any rate, did you deliver the package as requested?Q.Yes.A.And you say you, in fact, received something back from Tara?Q.I believe we were there to pick up the key to Abraham's vehicle. It was like a spare key that he had had that he wanted back, There may have been some other stuff. I don't really recall that too well.After dropping off the package at Tara McDowell's, did you go anywhere else that evening?
A.Page 1039       (Byron Case testimony)Q.No. Justin took me to my mother's apartment, which was where I was living at the time, and we hadn't really discussed anything about plans for the evening. So he just basically drove me into the back lot, and we parked there for a second and he says, "Well, I'll see you tomorrow."A.Can you estimate for the jury what time that was when you were driving back home at your mother's apartment?Q.Yeah. It was right at like 6 after 10. I looked at Justin's dashboard clock and according to it, it was just a few minutes after 10 o'clock.A.Did Justin say anything unusual to you or act unusual as he drove off and left you there?Q.Kind of. He had said that -- he had made a comment -- I was asking him if he wanted to, you know, or where he was going or what he was doing, what his plans were for the evening, and he goes "Well, I'm just going to go home and go to sleep.A.Did you find that to be unusual?Yes. Justin's hours were such that -- he would usually be up until probably 2, 3, 4 in the morning. So it was kind of odd that at 10 o'clock he was going to sleep. But I just kind of assumed he was upset after the argument with Anastasia. And I know that when we were at Kelly's house, he had called Anastasia's house, and, you know, her sister had said that she hadn't come home yet, and he was concerned about that.
Q.Page 1040       (Byron Case testimony)A.When was the last time you saw Justin Bruton alive?Q.That was the last time.A.He drove off and dropped you off. When you went inside, did you speak to your mother at all?Q.Briefly, yes, I did.A.You said you never saw Justin alive again?Q.Correct.A.Did you ever speak with Justin Bruton on the phone after that evening?Q.Yeah. I did call him -- or excuse me -- he called me the next morning at about nine-ish, I suppose. I don't really remember what time it was specifically. I had been up late myself the night before on the computer and didn't get to sleep until fairly late. So at 9 o'clock I was still asleep and wasn't really up for being on the phone.A.At 9 o'clock the next morning when the phone rings, did you know Anastasia had been killed?Q.No.A.Were you expecting any phone calls?Certainly no.
Q.Page 1041       (Byron Case testimony)A.And what did Justin talk about when he called you at 9 o'clock in the morning?Q.From what I can remember it was just, "Hey, how is it going? Do you want to get some breakfast?"
And I said, "Well, not really. I was asleep." And I said, "Why are you calling me this early?"
And he said he had trouble sleeping.A.Any further conversation?Q.I said, "Well, I am sleeping, and I would like to get back to sleep." And so I just said, "I'll talk to you later."
And he says, "Okay, well, I'll call you this afternoon."A.You kind of cut him off?Q.Yeah.A.Did you ever speak to him on the phone again?Q.No, I didn't.A.When did you learn about Anastasia's death?Q.It would have been the 23rd of October in the afternoon. I don't remember the specific time. Probably around five or maybe six.A.So this is the same day that Justin calls at 9 a.m.?Yes.
Q.Page 1042       (Byron Case testimony)A.How did you hear about Anastasia's death that afternoon?Q.I got a page from my friend, Abraham, and it had "911" extension on the end of it, so I knew that it was pretty urgent, because Bram -- excuse me -- Abraham never did that. So I called him right back. I was over at a friend's house, another friend's house. I called him right back, and he asked me if I had seen the news. I told him no, I hadn't, and he said, "Well, I did, and I just saw that Anastasia is dead."A.So you heard this from Mr. Kneisley?Q.Right.A.What did you do? How did you react?Q.I was confused. I had asked him I think two or three times what he had said just to be sure -- just to be sure that I got it right. When it finally had sunk in, my immediate response was, "Let me let you go. I'm going to call Justin." So I tried calling Justin, and he wasn't home. And then I believe I may have called -- I believe I called Bram right back.So your immediate reaction was to try to call Justin?
A.Page 1043       (Byron Case testimony)Q.Right.A.That same week were you interviewed by the police?Q.Yes. Yes, I was. Just the next day.A.So it would have been October 24th 1997 the police interview you?Q.Right.A.Did you go in voluntarfly speak with them?Q.Yes, I did.A.Gave a full statement?Q.Uh-huh.A.And you were interviewed later again, weren't you?Q.Yes.A.Did you tell the truth to the police?Q.Absolutely.A.Let me skip over to around Christmastime of 1997. Were you still dating Kelly Moffett at that time?Q.Yes, I was.A.Do you recall what you did around Christmastime 1997?Q.(There was no response.)A.Was there anything significant happening in your life at that time?My father had died Christmas Eve.
Q.Page 1044       (Byron Case testimony)A.About 60 days after Anastasia was found murdered?Q.Yes.A.Do you know what you did Christmas Day, the next day?Q.I went to a family gathering at my aunt's house.A.What's your aunt's name?Q.Nancy Nolker.A.And did anybody travel with you to the family gathering at Nancy Nolker's?Q.Yes. Kelly did.A.And did you continue to date Kelly through the holidays and on into 1998?Q.Yes, I did.A.When you and Kelly finally stopped dating, do you remember who broke up with whom or how that ended?Q.I believe ultimately she broke up with me.A.Why do you hesitate?There was a period where we kind of went through the same -- wouldn't say the same thing as Justin and Anastasia did, but we would break up and get back together I would say four times, maybe even five. I'm not sure. That's just an estimate.
Page 1045       (Byron Case testimony)Q.You know, invariably what would happen is we would somehow end up getting back together, either through, you know, me kind of -- I don't know saying, you know, let's -not break it off, you know. We're good together, et cetera.A.All right. But you think the last and final breakup Kelly broke up with you?Q.Yes.A.And after that breakup, did you and Kelly continue to have contact?Q.Yes. Every once in awhile.A.All right. And did you ever have the impression that she was pursuing you later on, even though she had broken up?Q.Yes.A.How did you receive that impression?Q.She would -- there was a period where we didn't speak to each other after the breakup. I was upset with her. She was upset with me. We just we didn't talk. But then I couldn't be specific on when, but she made a phone call to a -- this all kinds of blends together because there were so many of them.A.Sure.She made a phone call to me, and she wanted to get together and just hang out. There were other times when she was more specific.
Page 1046       (Byron Case testimony)Q.She says, "Well, you know, we were so good together." I don't know. She would want -- it sounded as though she was trying to get back together with me, but --A.How did you react?Q.I told her I wasn't interested. Either I was seeing someone else or I just didn't want to date anyone at that time. Certainly not her.Back to topDid she ever retaliate back against you when you refused to date her or refused to talk to her?
A.Q.No. There was one instance, though, when we were on the telephone, and I couldn't remember the exact conversation if you asked, but I do remember that we were arguing. This was I believe a month after we broke up I guess, Maybe not even that. Maybe it was just a few weeks.A.So to frame the picture, a month after you break up, you're talking on the phone with Kelly Moffett again?Right. I know it was early 1999, and I was on the telephone with her; and we were just arguing about something. I don't remember what. But at some point, she had made reference to getting back together. And I had told her that I wasn't interested. She is kind of pressing.
Page 1047       (Byron Case testimony)Q.She wasn't really pressing the matter. But she was kind of rambling about it, and I kind of cut her off in the middle of the conversation and just hung up on her.A.Was there any retaliation by Kelly Moffett?Q.She apparently called the police. Maybe 911. I'm not sure. But she called the police and told them that she had just gotten off the phone with her ex-boyfriend who was suicidal and had threatened to kill himself with I guess a knife or something in the house. I'm not sure.A.In the phone call had you been suicidal?Q.No.A.Or threatening to harm yourself?Q.No.A.And you ended the phone call by hanging up on her?Q.Right.A.Did the police or anyone arrive at your home?Yes. I was in my apartment. I was on the computer, and I got a knock at the door which I thought was kind of odd, because I wasn't expecting anyone that evening. And there were maybe four officers, Kansas City, Missouri Police Department officers, at my door.
Page 1048       (Byron Case testimony)Q.They told me -- they sort of pushed their way into the apartment without really saying much, and I was confused and a little bit frightened, but they instantly started asking me things like, "Are there any sharp objects in the house? Do you own any guns? Do you have any prescription medication?" Things like that.And then they proceeded to explain to me that they had received a phone call -- from what they said, "We got a phone call from your girlfriend who said you were going to try to kill yourself."A.Was there any truth to that?Q.No, no. Like I said I was just sitting on my computer when they came over.A.And did the police take you anywhere that evening?Q.Yes. They took me to Western Missouri Mental Health. It's near KU.A.Did you protest? You didn't really want to go there?Q.Yes.And what did the police and the doctors there say?
A.Page 1049       (Byron Case testimony)Q.They said there was nothing that they could do, that I believe she had to -- "she" being Kelly -- had to issue some sort of permission or something like that before I could leave or they had to keep me for observation, they said.A.How long did they have to hold you for observation?Q.I believe it was 24 hours initially and then they were talking about an additional 24 because Kelly wasn't giving permission to let me go or something like that.A.How long were you actually there at Western Missouri?Q.I don't really recall. I was so upset and it was just -- it was a disturbing situation.A.If I told you the record showed 24 hour observation, does that sound about right?Q.Probably.A.And so you were held at Western Missouri for 24 hours based on this phone call from Kelly Moffett?Q.Right.Now, moving way ahead -- that happened in 1999. Moving way ahead to the year of 2000, do you recall a specific time when you decided to move to St. Louis, Missouri?
A.Page 1050       (Byron Case testimony)Q.Yes, I do.A.And what precipitated your decision to move to St. Louis, Missouri?Q.Quite a few reasons really. One of them was that was tired of being accessible to -- specifically to Kelly. I didn't like the fact that she was constantly trying to meddle in my life and -- I don't know. I wanted to get away from her. She kind of -- well, she was acting like the traditional psychotic ex-girlfriend, and I didn't want any part of that. And I felt I had done everything I could to avoid that. I told friends, "Don't give out my number to anyone unless you know specifically who it is." You know, "Don't give out my address." Things like that.A.About this time, did you have a friend who happened to be moving to St. Louis, Missouri?Q.Yes, I did.A.What was her name?Q.Jamie Smith.A.Was Jamie Smith someone you dated?Q.No.She was a friend who was moving there?
A.Page 1051       (Byron Case testimony)Q.Yes. Well, we had talked about it, and she was from there originally. We had made the decision together to move there. We kind of discussed it, and I talked about moving. And she said, "Well, I've been kicking around the idea of moving back to St. Louis."A.Is it true she moved there a little bit before you did and then you --Q.I think it was two weeks maybe before I did.A.Can you tax your memory? Can you remember the exact date you moved to St. Louis?Q.Yeah. It was September 13th 2000.A.Was there anything -- or bow do you remember that date so specifically, September 13th?Q.I believe it was a Friday and the number 13 kind of struck me as odd. I don't know.A.Friday the 13th?Q.Lucky number 13. 1 was thinking, well, this could be a change.A.Did you see Kelly Moffett in person shortly before you moved to St. Louis?Q.Yes, I did.A.Can you describe where that was at?Q.That was at my apartment there in Kansas City.If you were trying to avoid Kelly Moffett, how did it happen that she visited you at your apartment in Kansas City?
A.Page 1052       (Byron Case testimony)Q.I have no idea.A.Was there a phone call or did she just show up?Q.Well, yeah. There was a phone call.A.Tell us about the phone call.Q.I vaguely remember it. Unfortunately, I can't recall specifics. But it was basically, she called -- she was -- I had known from a previous phone call that she had made to me -- I don't know -- maybe a month beforehand that she had either been kicked out of her parents house or had just left. I'm not really certain.A.And then what happened at this phone call?Q.This was just basically her saying kind of -- it was sort of an extension of the first phone call that she had made, where she was describing her living situation. And she expressed that, well, the place I'm living now, we got a phone, but we don't have running water, and I haven't eaten anything in like a day or two and --A.How did this tie into her wanting to see you in person?She had said that I was the only person that ever really cared or, you know, that she could turn to really.
Q.Page 1053       (Byron Case testimony)A.Later that day, did she come to your apartment?Q.Yes.A.And who was there when she -- before Kelly arrived?Q.It was just me and my friend, Jamie. We were at the apartment, just sitting around.A.Did someone arrive with Kelly?Q.Yeah. A friend of hers who I had never met before.A.And can you estimate how long Kelly stayed at your apartment that time?Q.It was awhile. I have no idea.A.What was the general tenor of the conversation?Q.She was just kind of -- I don't know. She was just sort of making nice, it seemed like, if that makes any sense.A.Was she aware you were getting ready to leave for St. Louis?Q.Yes.A.Do you think that affected the tenor of the conversation in any way?She did talk with me briefly about that. She couldn't -- it seemed like she couldn't understand why I would be moving. And I didn't really come out and say, "I'm moving because of you," but I don't know. I did tell her I was leaving and --
Q.Page 1054       (Byron Case testimony)A.How did she react?Q.She didn't take it too well. It was almost like -- she wasn't specifically saying, "Don't go," but she was sort of -- it seemed like she was really laying into me, trying to convince me to stay.A.Did you make it clear to Kelly Moffett that you were not giving her your St. Louis phone number?Q.I don't recall.A.Did you make it clear to Kelly Moffett that you didn't want to have any further contact with her after you moved to St. Louis?Q.I don't believe I did. I may have said -- I may have, but like I said, I really don't remember.A.When you moved to St. Louis, did you have the understanding that Kelly had your phone number and your new address?Q.No, I didn't think they would.A.Did Kelly Moffett attempt to contact you while you were living in St. Louis?Yeah. I never spoke with her. At one point I heard a message that had been left on the answering machine at the apartment that I shared with Jamie from her.
Page 1055       (Byron Case testimony)Q.She was just saying, "Byron, give me a call." That's it.A.Did you call her back?Q.No.A.Fair to say you were trying to avoid Kelly Moffett?Q.Yes.A.Going, back to the time of Anastasia's death, was Justin Bruton your best friend at that time?Q.I would say so.A.Did he ever ask you to kill someone as a favor for him?Q.No.A.Let me ask you briefly about your dad, Dale Case. To your knowledge, did Dale Case ever own a gun?Q.No.A.Or more specifically, did Dale Case ever own a hunting rifle?Q.No.A.Did you, Byron, ever go out hunting with your father, Dale Case?Q.No.A.Ever once?Q.No, never.Did you ever go hunting with anyone?
A.Page 1056       (Byron Case testimony)Q.No.A.Over at your dad's place, at Dale Case's place, was there ever a hunting gun hanging on the wall?Q.No, there wasn't.A.Did you ever tell Kelly Moffett that you had taken your dad's hunting rifle?Q.No, I didn't.A.Did you ever at any time say that you wanted to know what it would feel like to kill someone?Q.No.A.Did you ever talk about the general idea of you could shoot your father?Q.No.A.Put him out of his misery or something like that?Q.No.A.What was his health situation?Q.My dad was in fairly good condition. I mean, he was -- he had been HIV positive for some years, but he was always in peak physical condition. I mean, he worked out. He was always -- he took vitaniins and participated in physical fitness competitions. Things like that. So he was in good shape.Was there ever a long period of suffering before the HIV finally got to him?
A.Page 1057       (Byron Case testimony)Q.No, no. When he finally did die, it was very sudden. He had gone on a trip to New York, and I believe he was supposed to be gone only for a week. I hadn't heard back from him after the initial weak, and I found out -- I believe it was during the middle of that second week, my aunt phoned me at home and told me that he was in the hospital.A.How long was he in the hospital until he died?Q.I believe it was only two weeks.A.So was there this long period of suffering and frail health where you commented you could just shoot him, shoot your own father, put him out of his misery?Q.No.A.Byron, did you ever hear Justin Bruton say that he wanted to know what it would feel like to kill somebody?Q.I don It believe so.A.You don't believe that ever happened?Q.I don't believe so.A.Do you have any prior convictions in state or federal court?Q.Yes, I do.What have you been convicted of?
A.Page 1058       (Byron Case cross-examination)Q.Stealing.A.Was the stealing charge a felony or misdemeanor?Q.It was a Class "C" felony.A.All right. What county was that conviction in?Q.Clay County.A.Do you know what year you were convicted?Q.I believe it was '98.A.Was that after a guilty plea or a trial?Q.No. That was after a guilty plea.A.And what was your final sentence in that case?Q.Six months in the County Jail which was -- they gave me a suspended imposition of sentence, I believe.A.Did you end up with probation?Q.Yes. Five years probation.A.Five years probation? So the six-month sentence, you didn't have to serve that?Q.Correct.A.Suspended sentence?Q.Correct.A.Other than the felony stealing, do you have any other prior convictions in state or federal court?MR. LANCE:No, I don't.No further.
THE COURT:Page 1059       (Byron Case cross-examination)CROSS EXAMINATION BY MR. FRY:Cross examination.
Back to top
Q.A.Mr. Case, I'm going to start talking about the relationships that you had with the people involved in this case; do you understand that?Q.Yes.A.First, I'm going to start talking about Justin. At the time of this murder, you had known him for about a year; isn't that correct?Q.Approximately, yes.A.And you met at a coffee house and actually became pretty quick friends; is that right?Q.Yes.A.You had a lot in common. He was a very accepting young man; is that right?Q.Yes.A.You even talked German fluently with him; isn't that right?Q.I think we did once. Maybe twice.A.You heard your mom talk about it, didn't you?Q.Yes, I did.A.Was she mistaken?That may have been one instance. I generally don't speak German with anyone except my mother so...
Q.Page 1060       (Byron Case cross-examination)A.Justin's drug abuse and use didn't seem to bother you in that friendship, did it?Q.It bothered me when it became -- I don't want to say when it became a problem, but certainly when it became very excessive -- or excessive I should say.A.What did you do about it?Q.I never really did anything about it.A.All right. You frequently spent the night over at his condo; isn't that correct?Q.That's correct.A.Many of your friends thought that you two were inseparable; is that correct?Q.I would say, yes.A.Brutons, Justin's family, thought you were a special friend to Justin, didn't they?Q.Until yesterday I had never heard that, but obviously.A.Obviously Justin shared that with them, didn't he?Q.Yes.And they believed that, didn't they?
Page 1061       (Byron Case cross-examination)A.The Moffetts, they thought that Justin was a special friend, and you were pretty special friends with him, didn't they?Q.Yes.A.Your mother knew that the two of you were pretty special friends, didn't she?Q.Yes.A.Did she seem pretty comfortable with you spending the night there routinely, isn't that right?Q.Yes.A.In fact, you spent the night there so routinely, she almost became unaware of that, whether you were with her or with your father or with Justin; isn't that right?Q.Yes.A.All right. There were certain changes that were going on in Justin's life in the year that you knew him, weren't there?Q.Quite a few, yes, sir.A.One of those changes was Anastasia; isn't that correct?Q.Yeah.A.And that happened in, like, April or May they met, didn't they?Q.I really don't recall that. I would say yes.Don't say yes to anything that I'm questioning you about if you don't mean it. Okay?
A.Page 1062       (Byron Case cross-examination)Q.Okay. I don't recall.A.Well, you heard testimony the other day that they met towards the end of the school year, and by graduation, she was already moved in; and it seemed like in a month. Does that seem right to you?Q.Yeah. It was longer than a month, but yeah.A.And then she just moved right on in after she got out of high school, didn't she?Q.Right.A.And it's fair to say that they were quite infatuated with each other?Q.For a time, yes.A.At the time that they met and within a month she moved in?Q.Oh, yes.A.They even were so happy that they talked about being married, didn't they?Q.Yes.A.You heard the other day that Justin was so serious about it, he even mentioned it to his parents, didn't you?Q.Yes.Were you aware of that?
A.Page 1063       (Byron Case cross-examination)Q.Yeah. I remember that he had taken her down with him to Tulsa one weekend, and she had spent the weekend there and met the parents, and they expressed that to them.A.You heard the conversation that the financial support that he was receiving up here in Kansas City was going to end if they got married, didn't you?Q.No, I never heard that.A.They never came back and told you that?Q.Huh-uh.A.You heard that yesterday, didn't you?Q.Yes.A.Was that the first time?Q.Yes.A.Your inseparable friend hasn't mentioned that to you at all?Q.No.A.Did they ever talk about just living together and not getting married so that they wouldn't lose the financial support or anything like that?Like I said, they never talked about anything about their finances. I know Justin was frustrated with the idea of -- he was frustrated at the idea of living kind of under his parents' wing, but never really did anything about it.
Q.Page 1064       (Byron Case cross-examination)A.Pretty soon there was another change in Justin's life, was that those two started to fight; is that right?Q.Yes.A.She became a burden to Justin, didn't she?Q.Yes.A.She became a burden to you, didn't she?Q.Yes.A.You heard talk about another change in his life, dropping out of school, didn't you?Q.Yes.A.And you were aware of that, weren't you?Q.I knew that he was -- I knew he wasn't going. I didn't know if it was official or --A.Didn't know if he, for instance, withdrew from school and got the money back in his own pocket, did you?Q.No.A.He just quit going to classes?Q.Sorry?A.You didn't know whether it was just quit going to classes or quit and get the money back and just not tell the parents about it, right?No.
Q.Page 1065       (Byron Case cross-examination)A.Now, fair to say, you knew about his relationship with his parents and the money and school; is that correct?Q.Yes.A.And at some point in time, you knew that his parents were going to find out that he was not in school, didn't you?Q.Yeah.A.And he knew that too, didn't he?Q.Yes.A.Did you ever talk about what was going to happen then?Q.He had mentioned -- I'm trying to remember how he mentioned it or where we were.A.Was this a fairly big thing if the condo wasn't going to be available to you anymore?Q.He never said anything about that. All I know is that he had mentioned that -- he had mentioned that he had had a desire to try to get a job and, you know, support himself I know that's something that he said that he wanted to do. But he never specifically said: "My parents are going to stop funding me."In the course of your relationship with Justin and his developing a relationship with Anastasia, your relationship with Justin changed a little bit, didn't it?
A.Page 1066       (Byron Case cross-examination)Q.I wouldn't say so.A.You heard your mother say that you complained that didn't get to spend as much time with Justin anymore, didn't you?Q.Yes, I heard that.A.Did you complain to your mother that way or did she make that up?Q.I don't believe she made it up. I don't recall ever having said that, but...A.Okay. You knew there would be less hanging around time between the two of you, didn't you?Q.I presume so, yes.A.And there was less spending the night at the condo or, if she was there, you wouldn't spend the night there?Q.That was never an issue. I just crashed on the couch in the living room.A.Were you jealous at all of Anastasia's relationship with Justin?Q.No, not at all.I want to talk with you really quickly -- you've had sometimes, it seems, a little difficulty remembering things.
Page 1067       (Byron Case cross-examination)A.You certainly have prepared to come to court today and answer the charges that are before you, haven't you?Q.Yes.A.You got all the police reports. I see you have quite a stack there. You've had them the whole time, haven't you?Q.Yes.A.In fact, your mother has had that same stack of reports, hasn't she?Q.Hers wasn't nearly as complete, I don't believe.A.And Abraham's wasn't nearly as complete as yours either?Q.I never saw it. The lawyer that I had previously had sent it to him.A.Do you know how many people they sent it to?Q.I'm sorry?A.Do you know how many people they sent that to?Q.My mother and Abraham and that was it.A.Do you know how many times you got copies?Q.I wouldn't have any way of knowing that.A.In the course of this investigation, you know you gave statements to Sergeant Kilgore, didn't you?Q.Yes.And you certainly have had that statement provided to you, have you not?
A.Page 1068       (Byron Case cross-examination)Q.Yes.A.And you certainly have studied it, have you not?Q.Probably not as well as I should have, but, yes.A.Okay. It is a statement that, if we give the jury a little perspective, you are out Wednesday night with Anastasia; is that right?Q.Yes.A.Thursday morning, at 3 o'clock, her body is found, and she has been murdered; is that right?Q.Yes.A.The Friday after, the next day after she was found, you're in the deputy's office and you're giving a statement, right?Q.Yes.MR. LANCE:Fair to say a little worried about being a suspect in that?THE COURT:Judge, I object. May counsel approach the bench.MR. LANCE:Sure.
(Counsel approached the bench and the following proceedings were had:)Judge, I'm concerned we're going to go into the area of my client at some point did retain an attorney and then refused to talk to the police.
Page 1069       (Byron Case cross-examination)THE COURT:I'm not sure where the State is going here, but I'm concerned that's what the witness is going to blurt out, and that's an area that I don't want to go into.MR. FRY:Well, I hear what you're saying, but I think it would seem to me, under the circumstances, be it your client or anyone else, if they found this young lady dead and there are only three people in the world that were around her that night all three of those people, rightly or wrongly so, would have a concern about being a suspect, innocently so. To me I think it's an area of inquiry he has a right to ask.THE COURT:I may not be as eloquent as you, Judge, but I have asked a specific question about a specific statement.MR. LANCE:I think the question is an appropriate question. If we get into areas that are -- I mean, if we stub our toes, we stub our toes and deal with it. But I think the question is an appropriate question for cross examination.For the record is the objection overruled?
THE COURT:Page 1070       (Byron Case cross-examination)The objection is overruled.BY MR. FRY:(The proceedings returned to open court.)
Q.A.Fair to say you might have been considered a suspect at that time?Q.I knew it was a possibility, yes.A.And that's because why?MR. LANCE:Because they were questioning me.THE COURT:Objection.MR. LANCE:Did you want to make a record?BY MR. FRY:No. Go ahead.
Q.A.You were one of the last three people that ever saw her alive, weren't you?Q.Yes.A.And that was a close friend of yours, right?Q.Yes.So you either wanted to help the police for one of two reasons, giving them all accurate information; is that right? This is the close friend that was killed and you might be considered a suspect, and you wanted to just get rid of any concerns about that right?
A.Page 1071       (Byron Case cross-examination)Q.Yes.A.All right. You've been provided a copy of the statement by your attorney; is that right?Q.Yes, I have.A.You certainly read it prior to coming in here today and, if I asked you some questions about that statement, you're not going to be surprised, are you?Q.No. I don't believe I would.A.I would like to ask you about some of the changes in Justin's life. One of those changes is his thoughts on suicide. He had thoughts about suicide, didn't he?Q.Yes, he had.A.He had confided, in fact, to you that he had attempted suicide in the past and -- actually, quite a few attempts; isn't that right?Q.Yes, that's correct.A.Before you even met him, right?Q.Right.A.You told Sergeant Kilgore about Justin buying this shotgun, didn't you?Q.Yes, I did.But you did know Justin bought a shotgun, didn't you?
A.Page 1072       (Byron Case cross-examination)Q.Yes.A.And you knew he bought it in September, a month before this murder, didn't you?Q.I wasn't sure about the exact date, but, yes.A.About three or four weeks is the way you think you described it; is that fair?Q.That's correct.A.Now, there were a couple things, when you told Sergeant Kilgore about this shotgun, that I want to ask you about. One possibility for his buying the shotgun that you gave Sergeant Kilgore was it was for sport. Do you remember telling him that?Q.Yeah. I was kind of speculating on why he would have bought it.A.Why would you speculate Justin using a gun for sport? Did you ever do that with him?Q.No.A.In the year you knew him, did he ever express any interest in that sport?Q.No.A.Did he seem like that kind of a young man?Justin had so many interests that just kind of popped in and out. He would be interested in something for a week, and then he wouldn't be interested in it anymore, so...
Q.Page 1073       (Byron Case cross-examination)A.I'm sorry. Were you finished?Q.Yeah.A.Another concern that you expressed to Sergeant Kilgore in that very same statement was some comments that he made that he may just take this gun and shoot himself and get it all over with. Do you remember saying that?Q.I remember -- I don't remember if it was specifically in reference to that gun. But he did say at some point -- I vaguely recall him having said that, yes, that he was -- it was sort of almost an idle -- as much as that comment can be, an idle statement, "Well, I might as well go shoot myself," or something like that.A.All right. You specifically remember Justin saying something about, well, I might just take this shotgun and go shoot myself and get it all over with. You told that to Sergeant Kilgore; is that right?Q.Again, I don't remember specifically saying with that gun but...A.I asked did you remember saying that he made that statement in about the same time that he purchased that shotgun?I don't recall, no.
Q.Page 1074       (Byron Case cross-examination)A.Page 23. I'm going to show you page 23 of your statement. I got it underlined there to help you. See if that refreshes your recollection.Q.Yes. This is before he bought the shotgun, though--A.Right. You made that statement, and then he went out and bought that shotgun, right?Q.Time period in between, I'm not sure what it would have been, but it was before, yes.A.Now, were you concerned about him making a statement ae that?Q.Well, at the tim& he didn't own a gun, so no.A.But when he went right out and bought the gun, were you concerned with him having said that in the past?Q.I don't believe I made a connection. Again, it was just -- there were so many things that Justin said that we almost didn't even listen to half the time.A.You made the connection in telling Sergeant Kilgore that, didn't you?Q.Yes, I did.A.But you didn't make the connection back when it happened?No. No, I hadn't.
Q.Page 1075       (Byron Case cross-examination)A.Okay.Q.There was briefly a period before I spoke with Sergeant Kilgore when I had made that connection, and I thought to myself, Well, should I worry about this? So.A.Did you worry about it?Q.I spoke with Justin about it and he said that it was nothing so...A.When I asked did you do anything about it and your answer was, "Well, I talked to Justin about it"?Q.Correct.A.When Justin couldn't be found the day after Anastasia was murdered, you called his home, didn't you?Q.Yes, I did.A.And he was just missing then, wasn't he?Q.Yes.A.But you were so concerned about him missing that you called his home and reported that he was missing, didn't you?Q.I'm sorry?You were so concerned that he was just missing that you called his home and told them that he was missing?
A.Page 1076       (Byron Case cross-examination)Q.Yeah. I was concerned that he was missing, yes, in light of what had happened and no one knew where he was. I thought it was odd.A.So you called his home and told the parents?Q.Oh, his home in Tulsa, yes, yes. I didn't know, he had gone down there or I didn't know what had happened.A.When he bought the shotgun and he said that he was considering shooting himself, did you call then?Q.No, I didn't.A.When he was found dead, did that make you very sad?Q.Initially, again, it was a shock. At this point I don't even recall how I found out specifically, but I remember that -- I do remember that initially it was just kind of -- there was too much to deal with and I didn't -- I didn't really react immediately.A.Didn't have an emotional reaction?Q.My emotional reaction was to shut down.A.I want to now talk to you about Anastasia. Anastasia you knew since the eighth grade in freshman year; is that correct?Q.Yes, that's correct.Back then you weren't close friends, right?
A.Page 1077       (Byron Case cross-examination)Q.(There was no response.)A.Just schoolmates?Q.Yes.A.Met in coffee houses at Westport and kind of made easy that you recognized each other and got together, didn't you?Q.Well, actually what happened there was I was actually out with Justin one evening. I saw her at a coffee house, and we all, the three of us, started talking. I introduced them.A.And they started dating?Q.Uh-huh.A.And then she started staying over with Justin?Q.Yes.A.And then she moved in with Justin, right?Q.Yes.A.And you've lost track of when they started talking about marriage?Q.Yeah. During that time I wasn't paying terribly close attention to, you know, what day what was happening on. So really I would be hard-pressed to pinpoint even a month when they started talking about that.Fair to describe that relationship as a good relationship for all three of you for awhile?
A.Page 1078       (Byron Case cross-examination)Q.Are you referring to Justin and Anastasia and I?A.Yeah. Just good friends?Q.Yes.A.At some point that didn't continue to stay that good, did it?Q.No.A.They began to break up, didn't they?Q.Yes.A.Now, when she went through this breakup phase, I think you saw a new part of Anastasia, didn't you?Q.Yes.A.A very demanding young lady, wasn't she?Q.Yes.A.She needy of Justin, wasn't she?Q.Yeah, she was.A.Very determined about Justin, wasn't she?Q.Yes.A.She was very stubborn to let Justin just go away, wasn't she?Q.She had her moments where she would say, "Well, I don't need him anymore," but for the most part, yes.And she would turn right around the next day and call you 10 or 15 times asking about him, wouldn't she?
A.Page 1079       (Byron Case cross-examination)Q.Yes.A.And, if it wasn't you, it was Tara, wasn't it?Q.That's what I heard, yes.A.She wasn't going to let go of this young man at all, was she?Q.No.A.She was fighting every minute, every day to get him, wasn't she?Q.I suppose so, yes.A.She was a fighter for him, wasn't she?Q.I'm sorry?A.She was a fighter for him, wasn't she?Q.Yes.A.And that was consistent with her personality, wasn't it?Q.Yes.A.It was very disturbing to you when she was violently murdered, wasn't it?Q.Yes.A.She was one of those people that you cared about right?Q.Yes, she was.She was one of those people that mattered; is that right?
A.Page 1080       (Byron Case cross-examination)Q.Yes.A.Do you remember Kelly describing you as saying well, to you, there were some people that mattered and some people didn't? Do you remember?Q.Yes.A.Is that true?Q.Yes, but I should offer a qualification that I think that the way that she was referring to it implies some sort of sinister undertones to that. I'm sure that in more than one instance in my life I've said that some people matter and some people don't; but I think in everyone's lives there are people that they care about that they're extremely close to, who matter in their immediate life, and there are those that don't.A.And you categorize them fairly easily, don't you?Q.Relatively.A.Yes. Now, I want to talk to you about Kelly. You met Kelly down in the coffee shops, right?Q.Yes. Through Justin.A.How long did you know her before you figured out she was in the eighth grade?Q.How long?How long?
A.Page 1081       (Byron Case cross-examination)Q.It had been -- I don't know. A month maybe.A.How old were you again?Q.When I first met her, I believe I was 18.A.She was 14?Q.Yes.A.What grade school or middle school did you go to pick her up when you picked her up with your car?Q.Trailridge Middle School.A.No doubt in your mind you had an eighth grader that you were dating; is that right?Q.Yes.A.Did that seem odd to you?Q.I was uncomfortable with it yes.A.The father was uncomfortable with it too, wasn't he?Q.Yes.A.He kicked you out of the house, didn't he?Q.Yes, he did.A.Physically?Q.He followed --A.He made sure you left, right?Q.Yes, yes.In fact, that was one of the first times he found you in the house. How long had you been dating before her parents even knew about you?
A.Page 1082       (Byron Case cross-examination)Q.I don't know when she told them specifically. There were a lot of things she was keeping from me back then.A.How long were you dating before you met her parents?Q.I would estimate about three weeks.A.Fair to say --Q.Maybe a month. I'm not sure about that exactly.Back to topFair to say you're her big dark secret of dating, right? From her parents, right?
A.Q.You could say that, yes.A.When you are forced out of the house, two days later you heard that Kelly ran away, didn't you?Q.I'm sorry?A.Two days after you were forced out of the house, she was forbidden to date you; she ran away?Q.Yes.A.You helped her run away, didn't you?Q.Yes, I did.A.You took her over to Justin's condo, didn't you?Q.Yeah. We picked her up in Justin's car.And there were no phone calls to her parents and no contact to let her know she was safe, was there?
A.Page 1083       (Byron Case cross-examination)Q.No.A.Right?Q.That's correct.A.And you took her over to that condo and you cut her hair, didn't you?Q.It had been a few days, but yes.A.And then you dyed it?Q.That I don't really recall. I don't remember.A.What's the point in all that? Disguising her so she couldn't be found?Q.No, no. She had mentioned that she wanted a haircut, and I said, "I can cut your hair. It's no problem."A.The other day she didn't sound like it was her idea; it was yours.Q.I don't know what to say about that. I maintain that I -- there was no purpose in disguising it -- or in disguising her. She had made the request that I cut her hair, and I did it.A.And you're hiding out for the whole week in Justin's condo, right?Q.No. We were going out, occasionally, hanging out usual.A.Out there in Westport?Q.Yes.And you would go back to the condo and wouldn't contact her parents, right?
A.Page 1084       (Byron Case cross-examination)Q.Yes.A.You were hiding out from her parents, weren't you?Q.Yeah, we were.A.You were infatuated with her as much as she was with you at that time?Q.Initially the relationship started out -- when I first met her, I was attracted to her. We had started talking, and she expressed to me that -- well, several things that kind of alarmed me and concerned me.
And my first thought was -- ultimately my first thought was maybe I can save her in a way, and it kind of grew from,there. So.A.You were going to save her, right?Q.Yes.A.From that alcoholic, child-beating father?Q.That's what she had told me.A.That's what your mother talked about; is that what it was about?Q.Yes.After her family hired an investigator and broke into the condominium and brought her bark home, you were allowed to see her, weren't you?
A.Page 1085       (Byron Case cross-examination)Q.Yes.A.You got to know the Moffett family, did you?Q.Yes.A.Probably never got along with the father, did you?Q.Actually, we -- I mean, we never were -- best friends, but we spoke and we were amicable together. I was never really -- initially I was uncomfortable, but I got over that. I believe I was under the impression we got over that but...A.But you did get to know the sister and the mother and the whole family started to include you in things pretty routinely, right?Q.Yes.A.You were almost a daily fixture in the house, right?Q.You could say that, yes.A.You were a daily fixture?Q.I'm sorry?A.You were a daily fixture; is that right?Q.Yes, you could say that.A.And you would either call or come over every day; is that right?A. Yes.
Q.Page 1086       (Byron Case cross-examination)A.Now, at some point in time after October 22nd, the relationship started changing?Q.Between myself and Kelly?A.Correct.Q.Not really, no. If anything we got closer because of -- I mean, we were both kind of in shock from everything that had happened and we were just kind of clinging to each other for support.A.Under the circumstances that she described, it would be very important for you to stay close to her, wouldn't it?Q.I suppose.MR. LANCE:If you wanted to control her, it would be very important for you to stay close to her, wouldn't it?THE COURT:Objection, asked and answered.A.Overruled.BY MR. FRY:I guess. I suppose.
Q.It would be. Now, you did stay very close and you went through the holidays and you went through your birthday and you still stayed pretty close through that whole time, didn't you?
A.Page 1087       (Byron Case cross-examination)Q.Up until the holidays, yes.A.Then after the holidays you continued to date, didn't you?Q.Yes, we did.A.And at some point in time Kelly started becoming verbally abusive to you; is that right?Q.I don't know about that. We were having,problems but...A.Her mother described these sessions with you watching you two, as Kelly was being verbally abusive to you; do you dispute that?Q.I can't recall any of that, no.A.You don't recall what Debbie Moffett recalls; is that right?Q.Correct.A.But at some point then, if she is not verbally abusive, you are both arguing with each other?Q.Yes.A.And what are we arguing about?Really any number of things. There were multiple instances where she would cheat on me, where she would go out and use drugs with friends or something like that, and I would be upset with her for doing that. There were really any number of things.
Q.Page 1088       (Byron Case cross-examination)A.She described that for this jury too, that she started seeking other friends away from you, didn't she?Q.She had always had other friends. It was just she hung out with them more.A.And she described her drug use and her alcohol use getting worse, didn't she?Q.Yeah. It had been escalating ever since we met, though.A.Her arguments with you were that, you know, you guys needed to do something about what happened on October 22nd, weren't they?Q.I'm sorry. Could you repeat the question?A.Her arguments with you were the two of you needed to do something about the events that occurred on October 22nd?Q.No.A.That's what she said and that's what she told this jury, right?. You remember hearing that, right?Q.Yes.A.You don't recall that part of the argument?Q.No.A.What was the argument then?(There was no response.)
Q.Page 1089       (Byron Case cross-examination)A.That she was cheating on you?Q.On occasion, yes.A.Why did you want to go back to her if she was cheating on you?Q.Well, this could be kind of a long answer, but I was in treatment -- or not treatment, but I was seeing a counselor for some time before I met her and continued on throughout the time that I knew her. And when I kind of shared with him details of the relationship, if I would go in and talk about something, eventually he began -- my counselor, that is, began to express to me that I was probably co-dependent. And for me, it was very difficult to sort of let that go. I felt as though I was constantly supposed to be there for her, to kind of look after her and make sure she didn't get herself deeper into drugs or alcohol and --A.You became like a surrogate father for her?Q.You could say that.A.And trying to control that aspect of her life?Q.Yes.A.But not controlling her ability to talk about what happened October 22nd?Certainly not.
Q.Page 1090       (Byron Case cross-examination)A.That's the way she described it though, isn't it?Q.Yes, I realize that.A.So you're both describing the same type of relationship, but she says it's because you're trying to control her and stay close to her so she won't talk about October 22nd; and you say no, I'm just trying to save her from drugs, bad friends, bad father and alcohol, right?Q.Well, no. At that point it had been established at some point in the middle of our relationship by her mother that Kelly was lying to everyone about how her father beat her or any number of other things. And so it had already been established to me that that was not the case. But everything else, yes.A.I believe, when you were breaking up and she finally broke up with you, was she the one pursuing you or were you the one pursuing her?Q.It varied at different times.A.When she finally broke up with you, it was her final breakup, right?Q.Yes, that's correct.But after the final breakup, you have this sense that you're telling the jury that, you know, for another year she is still pursuing you?
A.Page 1091       (Byron Case cross-examination)Q.After awhile she came back, I suppose, or tried to, yes.MR. LANCE:Her pursuit of you is to continue to try to get you to talk about what you're going to do about the events that occurred on October 22nd, aren't they?THE COURT:Objection, argumentative.A.Overruled.BY MR. FRY:That was never my understanding.
Q.A.That's what she testified; she told this jury under oath that?Q.Yes.A.You heard that?Q.Yes, I did.MR. LANCE:Her pursuit was only to get you to deal with the events that occurred on October 22nd?THE COURT:Objection, asked and answered.BY MR. FRY:Sustained.
Q.A.And you are trying to tell this jury that she is pursuing you, but it's romantically?Q.That was -- yes.That's your perception, right?
A.Page 1092       (Byron Case cross-examination)Q.Yes.A.When you're going to St. Louis and she comes over, are you tying to tell this jury that she was begging you to stay here in Kansas City?Q.I don't know that begging -- I think I specified that, I don't know that begging was really -- I don't know that that was really the right term.A.Take the term away. Was she tying to persuade you, influence you, not to leave?Q.It seemed that way, yes. She certainly expressed that she didn't want me to go.A.She wanted you to stay here and deal with the events that occurred on October 22nd is what she told this jury. She did want you to stay, didn't she?Q.Yes.A.And she did want you to deal with those events, didn't she?Q.Apparently. That's what she said, yes.A.But you were clueless as to that?Q.Of course.A.Jamie was in the room in that whole conversation. She came in here to testify for this jury; is that right?Yes, she did.
Q.Page 1093       (Byron Case cross-examination)MR. LANCE:She didn't describe the meeting in the same way you did at all.THE COURT:Objection. Commenting onBY MR. FRY:Just a moment. Sustained. Objection sustained. It's argumentative.
Q.A.I'm going to move on. We have talked about the relationships. I want to talk about these schemes. As I understand your testimony today, they're all Justin's schemes; is that right?Q.Yes.A.Abraham kind of said, well, we'd all kind of start talking about it. We would be participative listeners was I think the way he tried to describe it; is that right?Q.Yes.A.You all would just jump into these schemes, start talking and adding to everybody's story; is that right?Q.No.A.You never did that?Q.No.Kelly told this jury that you did. Did you hear her say that?
A.Page 1094       (Byron Case cross-examination)Q.Yes, I did.A.And are you saying that's not right, you didn't involve yourself in these schemes at all?Q.Absolutely not.A.Not even, Re, Abraham described, that you were like participative listeners?Q.I think Abraham and I are describing the same thing. I think that we were listening, and we didn't really say or do anything about it. So that was the impression that I got. But that was certainly what -- I mean, certainly everyone's involvement to the best of my knowledge.A.Were there other schemes that you all came up with to make some money, do anything like that?Q.No.A.Anybody scheme to get a job out of any of this time?Q.I was working at Kinko's Copies on Johnson Drive. I was employed at least for quite some time. And at one point I quit there but...A.Never had a regular job for the whole year, did you?Q.Well, aside from that.Aside from that you just lived off your parents and Justin, didn't you?
A.Page 1095       (Byron Case cross-examination)Q.After I lost my job there, yeah, I went to go live with my mother.A.So Justin quitting school, losing his finanres, might have been a little bit of a concern for you; is that right?Q.Again, I didn't know anything about Justin losing his finances. He never expressed that to me.A.Your inseparable friend never told you anything about that, right?Q.That's correct.A.All right. We're going to now talk about October 22nd 1997. All right? Again, I've shown you a page of this document that you gave and it's a statement that you gave Sergeant Kilgore, right?Q.Yes.A.You know it exists, right?Q.Yes.A.And you've been provided copies of it before coming here today, right?Q.Yes, I have.Essentially, as I listen to you, you are trying to tell this jury the same thing today that you told Sergeant Kilgore two days after her body was found -- or a day after her body was found; is that right?
A.Page 1096       (Byron Case cross-examination)Q.Yes.A.On that day, you had nothing to hide; is that correct?Q.That's correct.A.You told the absolute truth as you knew it; is that correct?Q.Well, I think that -- I told the truth, certainly, about everything that I was asked, but I think there were some things which I kind of downplayed, specifically with regards to Justin, but that's really irrelevant I think.A.We might find that or we may not. Fair to say that the night before October 21st you spent the night at Justin's house; is that right? In his condo?Q.I don't recall, but I believe so.A.Did you wake up in his condo the 22nd?Q.I'm inclined to believe I did, although I don't specifically recall.A.Two days later -- let's see if that refreshes your recollection. "I think I may have spent the night there before," right?Yes.
Q.Page 1097       (Byron Case cross-examination)A.And when you woke up, do you remember you had no plans, anything to do, either you or Justin; is that right?Q.Yes. That's correct.A.At some point in time the only plan that came forward was that you were going to go to Funco; is that right?Q.Yes.A.You spent the entire day with Justin on the 22nd, didn't you?Q.Yes. Although I should state that, when you said the entire day, that implies that we got up fairly early. When, in fact, we, as I said before, I mean our sleeping schedules were such that we stayed up very late and didn't wake up until usually early afternoon.A.Needless to say, whenever you woke up, everything Justin did, you did with him?Q.Yes, that's correct.A.So when you told Sergeant Kilgore you woke up and you go out to just take care of some things, it was a day just like any other; is that right?Q.Uh-huh.A.Sometime during the day you became aware and you told Sergeant Kilgore that Justin made plans to meet Anastasia at 5:30. Do you remember telling him that?Q.Yes.And the whole purpose of that meeting was that Anastasia wanted to talk with him about their latest problems.
Page 1098       (Byron Case cross-examination)A.Do you remember telling Sergeant Kilgore that?Q.Yes.A.And that's the truth, right?Q.Yes.A.Because everything you said then was the truth and everything you're saying today is the truth, right?Q.Well, I don't recall the time specifically. I assume that that was accurate, though.A.Do you need to refresh your recollection looking at the statement? If you said 5:30 for that meeting then, was that about as right as you could be?Q.Yes.A.Anastasia, for some reason, wanted to meet Justin at Mount Washington Cemetery; is that right?Q.Yes.A.Now, Anastasia you knew had no car, right?Correct.
Q.Page 1099       (Byron Case cross-examination)A.You knew her family would be at work, right?Q.I didn't know her family's schedule.A.What family you knew, they would be at work, right?Q.I didn't know her family's schedule.A.You knew she didn't have a car?Q.Yes.A.Did you know she didn't get along with her parents?Q.She had mentioned it in the past, yes.MR. LANCE:It was kind of tough to ask them to help her out in her mind, wasn't it?BY MR. FRY:Objection. Calls for speculation.
Q.A.Had she shared that with you? I'll withdraw the question. Had she shared that with you?Q.I'm sorry?A.Had she shared that it was tough in her mind to ask her parents for help?Q.Not really, no.A.She shared with you it was tough moving back home, wasn't it?Well, yes.
Q.Page 1100       (Byron Case cross-examination)A.Not only because she was away from Justin, but because she had moved back with her parents, right?Q.Yes. I think it was more of a burden -- or it was more of an inconvenience having to be back there, which is why it was tough. I don't think there was -- well, I don't know.MR. LANCE:Help this jury understand why a young lady with no car and no access to a ride makes arrangements with Justin to meet at a cemetery that she can't walk to?BY MR. FRY:Objection. Speculation unless the witness knows.
Q.THE COURT:Do you know?BY MR. FRY:Hold on. As long as related to personal knowledge, I'll allow the question to be asked.
Q.A.Do you know why she would have done that?Q.No, I don't.A.Does it make sense to you?I wasn't clear on where they were supposed to meet originally, so I really can't say. I believe initially she was under the assumption she could get a ride.
Q.Page 1101       (Byron Case cross-examination)A.All right?Q.But they had settled that before -- well, earlier in the day, and then plans changed at some point.A.But you knew the plan was -- her intent to meet at Mount Washington and that she had to meet Justin there. Why wouldn't Justin just go pick her up and go to Mount Washington? Have you got any idea?Q.I remember Justin said he didn't really want to drive all the way out there.A.Well, Mount Washington is less than three miles from her house. What's the difference going to her house or going to Mount Washington?Q.I don't know. I would assume that, you know, she got a ride as far as she could or something to that effect, but I don't remember anything about that being said specifically.A.But you became aware, even though she wanted to go to Mount Washington, at some point in time she was having a hard time getting a ride; is that correct?Q.Yes.A.So you take off, and you decide to go to Funcoland with Justin; is that right?Yes.
Q.Page 1102       (Byron Case cross-examination)A.Do you remember about what time you take off to go to Funcoland?Q.I would estimate some time around 3 in the afternoon.A.Around 3 in the afternoon?Q.Roughly.A.So before 3 o'clock in the afternoon, she had called and said, "I'm having a hard time getting a ride," obviously; is that right?Q.Yeah. She had canceled plans.A.Would you have gone to Funco if he was still expected to go td Mount Washington Cemetery to meet her at 5:30?Q.No.MR. LANCE:So before 3 o'clock, before her parents get home, before she has any chance to get a ride, this little scrapper of a girl, this fighter of a girl, that doesn't want to give up on Justin, is asking to meet Justin that day to talk about their relationship, calls before 3 o'clock and says "I can't be there. Go on."THE COURT:Objection to the form of the question.Sustained.
BY MR. FRY:Page 1103       (Byron Case cross-examination)
Q.A.Do you have any explanation why she would have given up on that meeting so quickly that day?Q.Because, as I said, it was my understanding she couldn't get a ride.A.You agreed with me she was very determined, didn't you?Q.Yes.A.She was very stubborn, wasn't she?Q.She could be.A.About this relationship, she didn't want to let it go and, if she wanted to meet Justin, she would have been stubborn and determined, right?Q.Probably, yes.A.Before 3 o'clock, she just gave up on the idea and said, "I can't get a ride"?Q.She had exhausted -- from my understanding, she had exhausted all the possibilities. She called relatives. I don't know. I never asked about the specifics. It wasn't an important issue at the time.A.We give up on -- she gives up on that and you decide to go to Funco, and that's over here in Roeland Park, Kansas; is that right?It was listed as Rocland Park, Kansas, in the phone book. It seemed like Lenexa to me. I have not sure. I never looked at the map.
Q.Page 1104       (Byron Case cross-examination)A.When you drive from The Plaza area where the condo is out to Roeland Park, how long would it take you to get there?Q.I would estimate 30 minutes. Maybe a little bit more.A.When you get to Funco and you do some trading of these games and stuff like that, how long do you think you're at, the one thing you did all day, go to Funco? How much time did you spend there?Q.We were there for awhile. I remember Justin kept looking at stuff on the shelves, and I would estimate maybe almost an hour.A.So, if you left at about three 3, it takes about 3:30 to get there, you're there about an hour, 4:30, and around that time you decide to go over to Kelly's house; is that correct?Q.After we left yes. After we left Funcoland, I suggested to Justin we stop over and see what she was doing.A.It would have been after 4 o'clock, right?Q.Yes.And you heard Fran and you heard Diane describe that, about 4 o'clock, Anastasia was getting in the car and driving to Mount Washington, didn't you?
A.Page 1105       (Byron Case cross-examination)Q.Yes.A.She didn't know the Mount Washington thing had been called off, do you think?Q.There was a breakdown on communication at some point. I don't know. The way that Justin explained it, she -- he had canceled plans.A.She didn't know it obviously, right?Q.Anastasia?A.She was unaware of that, if she left time,didn't she?Q.I guess.A.Well, you heard the evidence today, this week. Did you dispute that?Q.I have no reason to.A.You, instead, go over to Kelly's and you get there after 4:30 or around 430; is that correct?Q.Yes.A.And you decide you're going to go to Justin's condo from Kelly's house; is that correct?Q.Well, that was the original plan and Kelly was just kind of a stop, yes.And from Kelly's house, I'm sure you made the trip quite often. How long does it take you to get to Kelly's, from Kelly's house to the condo?
A.Page 1106       (Byron Case cross-examination)Q.It takes roughly 25, 30 minutes, depending on traffic and time of day and what route. But we did make a stop after leaving Kelly's. We stopped at -- there was a gas station. I believe it was 87th and Quivira, I believe there was a Phillips 66.A.A Kicks 66 station?Q.Right.A.Kelly remembers making a phone call to Anastasia at that time; is that right?Q.Right.A.We know from the evidence here that Anastasia is at the cemetery about 4:20 and about 4:30 you're at Kelly's house leaving going to a gas station; is that right?Q.Yes.A.And I think you told the jury already by the time you get back to the condo, there is a phone call waiting for you, "Hey, I'm at the cemetery, I got my ride, meet me down here at Mount Washington"; is that right?She said she was calling from a pay phone, but, yes. She said she had been waiting for some time.
Q.Page 1107       (Byron Case cross-examination)A.And, if she didn't get you guys at the condo, it would have been very matter of fact for her to reach you on your pager; is that correct?Q.Yes.A.And, if she had reached you on your pager and given the number, you could have dialed the phone number that Kelly says she dialed and Kelly could have talked to her at the Dairy Queen; isn't that right?Q.If the pay phone allowed incoming calls, yeah.A.And we got this other thing that's very puzzling here, is that Fran tells the jury that, about 10 minutes after Anastasia left with her stepmother to go to Mount Washington, Justin called and said, "I'm in Lenexa. I can't get there." Do you remember Fran said that?Q.Yes.A.Did Justin make that call?Q.Justin called and he was asking for Anastasia. I wasn't listening to the coversation, but I think I was still waiting in the car.A.Were the calls made from Kelly's house or the Phillips -- or the gas station?Q.No. He made that call from a pay phone at the gas station.Okay. And so Justin did call -- you're pretty convinced that Justin did call, talked to Fran, told Fran, "I'm in Lenexa."
A.A.And Fran said, "She's already gone," right?Q.I don't know what happened during the conversation but...A.It makes sense to you, doesn't it?Q.Yes.A.You don't dispute it, do you?Correct.In fact Kelly is right about stopping at the gas station to make a phone call?
A.Did you remember getting paged by Anastasia to call at a pay phone?
A.You don't remember that? Even though Justin has confirmed that Anastasia has gone to Mount Washington, she is out there all by herself, she just got dropped off, the three of you decide to come to the condo; isn't that correct?
A.Knowing that she is just out there with no ride and nobody; is that right?
Page 1108       (Byron Case cross-examination)Was there any discussion about that?
A.Page 1109       (Byron Case cross-examination)Q.I don't really remember. I think there was -- Justin may have mentioned something about it after he got off the phone. I don't really recall specifically, but I know that Justin was still adamant about not going out there to pick her up.A.Even after learning she was already there?Q.Yes.A.So you remember some discussion in the car driving from the gas station to the condo?Q.I don't remember specifically it being in the car. I know, when we got back to the condominium, there was a message on the answering machine from Anastasia saying the same thing, that she was already there and that she was waiting, but we had no phone number to reach her at and so we, obviously, couldn't get in touch with her.A.All right. You go back to the condo and, of course, you've got this message waiting for you, and Anastasia calls you at the condo again from the Dairy Queen, the pay phone; is that right?Q.Yes.And you remember that was after 5 o'clock, maybe closer to 6 o'clock, according to your statement; do you agree with that?
A.Page 1110       (Byron Case cross-examination)Q.Yes.A.And Justin is on the phone probably 20 to 30 minutes is how you estimated it to Sergeant Kilgore; is that right?Q.Sure. I have no reason to dispute that.A.All right. I don't either. And while that 20, 30 minute conversation is going on, you are just playing Nintendo games; is that correct?Q.Yes. Kelly and I both were.A.About 6:30, Justin tells -- you're hearing part of the conversation, I assume; is that right?Q.Yeah.A.Not really paying attention to all of it; right?Q.Right.A.You can't quote all of it, can you?Q.No, not at all.A.But at some point, you do know Justin agrees to go out, pick her up at the Dairy Queen; is that right?Q.Yes.And the whole point in Anastasia wanting to meet Justin was to talk about their relationship; is that correct?
A.Page 1111       (Byron Case cross-examination)Q.Yes.A.Why didn't Justin just go out there by himself and leave you and Kelly at the condo playing your Nintendo game?Q.We had discussed that, and he didn't want to do it, and Kelly didn't want to do it, as I recall, because she had to be back by 9. We didn't know how long they were going to be out there, what was going to happen; and Justin didn't want us kind of bumming around the apartment without him there.A.Knowing she wanted a private conversation with him about the relationship, all three of you pack in the car and drive over to Dairy Queen?Q.I told her in the phone, if I come out now, all three of us are going to have to come, otherwise I'll have to take Kelly home, and it will take longer.A.That has you leaving about 6:30; is that correct? After a 20, 30 minute call?MR. LANCE:Yeah, sure.THE COURT:Your Honor, may counsel approach the bench.Sure.(Counsel approached the bench and the following proceedings were had:)
MR. LANCE:Page 1112       (Byron Case cross-examination)MR. FRY:Your Honor, I apologize. Defense counsel needs to ask for a restroom break, like a 10 minute break.THE COURT:Fair enough.All right. Sounds good. Let's do that.THE COURT:(The proceedings returned to open court.)We're going to take a short break, ladies and gentlemen, and come back in about 10 minutes or so, ten or 15. The Court again reminds you of what you were told at the first recess of the Court. Until you retire to consider your verdict you must not discuss this case among yourselves or with others or permit anyone to discuss it in your hearing. You should not form or express any opinion about the case until it is finally given to you to decide. Do not read, view, or listen to any newspaper, radio, or television report of the trial.
With that being said, it's between 20 and a quarter till.
A.THE COURT:Let's try to resume testimony shortly between 5 of and 4 o'clock. All right? We'll be in recess. All rise, please. Jury is free to go to the jury room.
(A recess was taken.)BY MR. FRY:Everybody please be seated. Mr. Fry, you may resume your cross examination.
Q.A.Mr. Case, I ended by asking the question about all three of you just getting in the car and driving out to the Dairy Queen out on 24 Highway; that's correct, isn't it?Q.I believe so, yes.A.And when you got to the Dairy Queen, I believe you described it that you just drove up. You could see her sitting in there. Was it all three of you got out of the car and approached the Dairy Queen?Yes, it was.
And you heard the woman that worked at Dairy Queen. She remembered seeing one person. That person was dressed in a black trench coat. Do you have a black trench coat?
Q.Yes, I do.
Page 1113       (Byron Case cross-examination)Was that you in the black trench coat at the Dairy Queen that night?
A.Page 1114       (Byron Case cross-examination)Q.It would have had to have been.A.So it's fair to say, even though she got all the clothes pretty much wrong, Anastasia that night, she remembered this event. She just has a lot of details mixed up; is that correct?Q.I guess.A.Because, if she saw you in the black trench coat, that's what you were wearing that night, right?Q.Probably.A.Now, Anastasia immediately began giving you and Justin dirty looks; is that correct?Q.Yes.A.And she immediately began bickering and being very argumentative with Justin and all of you; isn't that correct?Q.Yes. She was upset with having I guess been left out there for so long. She was really angry with everybody.A.Would have been close to three hours sitting out there in the cemetery and Dairy Queen, if her stepmother is correct about dropping her off about 4:20; isn't that right?Q.That's correct.She decided to start taking it out on all of you immediately; is that correct?
A.Page 1115       (Byron Case cross-examination)Q.Yeah. She wasn't really upset with all of us for pretty long. She kind of focused in on Justin after that initial encounter, I guess.A.Directing her anger at Justin and kind of forgetting about you?Q.Right.A.I have to ask a question. If the whole point of Justin and Anastasia meeting there is to talk about their relationship and she is in such a foul mood, why don't you just stay at Dairy Queen with Kelly and let them go off into the cemetery?Q.I don't know. The thought never crossed my mind -- or at least not mine.A.It made you very uncomfortable to stay with her, I assume?Q.Yeah. I never -- I don't think anybody likes to be around arguing couples.A.You did drive in Mount Washington and really that's just across the street from the Dairy Queen; is that right?Q.Yes.A.And in Mount Washington, you don't drive around too much, do you?We drove around for awhile I think.
Q.Page 1116       (Byron Case cross-examination)A.Can you give us an idea for how long you drive around in there?Q.Not really. I wasn't paying much attention. I was kind of just daydreaming. So, if I had to estimate, I would say maybe -- I don't know -- minutes. Maybe 15 all told.A.Were you pretty focused on just maybe Kelly instead of what was going on there?Q.Not really. Like I said, I was just kind of staring up and out into nothing really.A.Mount Washington, about the time you all get there, is closing time, you told the jury you knew about that, right?Q.I assumed, yes.A.And it should be pretty empty about that time; is that correct?Q.Yeah.A.You drive in there and you stopped. Do you know if you stopped at this Nelson --Q.I didn't know the name of it, but, yes, we did stop there.A.When Mr. Colliver described it in court, did that sound familiar to you?Yes.
A.And Mr. Colliver described or testified driving up behind the car, people were maybe just getting out or something like that or he either saw them just getting back in, because they saw them drive up. You heard him testify about coming up behind that car; is that right?
A.That was you all, wasn't it?
A.Now, you know it wasn't 9 o'clock that night?
A.It was not 9 o'clock as he remembers it; is that correct?
Q.No. There was no way it could have been.
A.He's just mistaken about a small detail, right? But he does see you all there, right?
A.And then, as he testified, you all just get in the car and you just drive right out and not in any unusual fashion at all, right?
Q.That sounded accurate, yes.
Page 1117       (Byron Case cross-examination)Now, it's after you leave Mount Washington that your version of what happened and Kelly's version of what happened really radically changes; is that correct?
A.Page 1118       (Byron Case cross-examination)Q.Yes.A.That's where you're telling Sergeant Kilgore, as you're telling this jury today, that Justin just pulls out of Mount Washington and just starts driving around; is that right?Q.We pulled out and headed back towards Truman Road. I guess -- I don't remember, if there was anything said about it. I think somebody said something, although I couldn't recall who, about just going back to Justin's condo.A.So that was the discussion, that you all would just go back to Justin's condo?Q.Well, I wasn't a part of it, but that's what was said, I believe.A.You came right out of the cemetery right at the intersection of 24 Highway; is that right?Q.Yes.A.And 24 Highway is what you took from 435 to get to the Dairy Queen or are you sure?Q.We didn't take 435 to get there.A.What did you do? Take Truman Road?Yes. Justin always took Truman whenever he went out to pick Anastasia up, because I remember everyone complained about it. It was a silly way to get there.
Q.Page 1119       (Byron Case cross-examination)A.It was a long way to get there, right?Q.Yes.A.Long time and long-distance?Q.Uh-huh.A.So you head back to Truman Road. Fair to say Justin knows Truman Road pretty well then from all his trips out there?Q.I guess.A.Anastasia was still bickering, arguing, yelling, and she was ugly to Justin?Q.After --A.After you left the cemetery?Q.Yeah, they were still arguing.A.Why not just take her home?Q.I don't know.A.She is three miles away from her house. Why not just take her home? Is there any discussion about that?Q.I certainly didn't mention it, and no one else said anything about it, so no.A.So instead you go back to Tnunan Road, and you're going to drive, what? 40 minutes back into the Plaza?Approximately. I don't believe it's quite that long, but it was a fairly long time.
Q.Page 1120       (Byron Case cross-examination)A.We would agree there is no fast way to get from Truman Road down to the Plaza; is that right?Q.I would say that's pretty accurate, yes.A.So instead of taking her three miles home, you decide to take her off to the condo, and you're just going along with it, right?Q.Yeah. I mean, Kelly and I were just along for the ride from the beginning so.A.So you get on Truman and you head east and you're headed to Kansas City from Independence; is that right?Q.Yes.A.Nothing for you to stop at between there and the condo; is that correct?Q.That's right.A.Were you going to the condo so Justin and Anastasia could get a little privacy maybe and talk about their relationship? Do you know about that?Yeah. I think I'm trying to remember. I don't remember if someone said something specifically about that, the going back to the condo and us just kind of -- us being Kelly and I, just kind of, you know, taking a walk or something. I really don't remember if that was mentioned or not, but I seem to recall that it was.
Q.Page 1121       (Byron Case cross-examination)A.Your statement to Sergeant Kilgore seemed more like you were just going out driving; you really weren't a part of giving directions or having any idea where Justin was headed; is that right?Q.Yeah. That's pretty accurate.A.Fair to say, you just assumed he was going back to the condo; is that correct?Q.Yeah.A.There was no discussion -- pardon?Q.Go ahead.A.There was no discussions to go back to the condo, was that correct?Q.Again, there may have been. I vaguely recall there having been, but I couldn't be sure about that.A.You've had plenty of time to think about that conversation, haven't you?Q.Yes.A.Just can't remember it?Q.No.And you had time two days after her body was found to tell Sergeant Kilgore, yet you had nothing in your statement about that; it was because you couldn't recall it then either?
A.Page 1122       (Byron Case cross-examination)Q.Well, a lot of things I said were -- you have to understand, for the most part, aside from, you know, something that happened that was a little out of the ordinary, none of us immediately anyway attributed any special importance to that night. So remembering a lot of things after the fact was kind of difficult. It would be like me asking you what did you do two days ago specifically and breaking it down, conversations, you had. You may or may not remember a lot of things.A.Are you suggesting that, if one of my friends died two days from today, I wouldn't be able to remember what I did with them the last time anybody saw them? Is that what you're suggesting happened to you?No. I didn't make myself clear. Again, what I was saying was, because we didn't know at the time that anything really monumental was happening that evening, it was just kind of another day initially. And so remembering things -- we didn't think, Okay, well, I'm going to have to remember this conversation. I'm going to have to remember this conversation, as they happened.
Q.Page 1123       (Byron Case cross-examination)A.Okay.Q.So it was --A.Something monumental, though, does happen on the way down Truman Road when you get to it?Q.It was out of the ordinary, yes.A.You wouldn't call it monumental?Q.We didn't attribute it as being such, no, but it became, I guess.A.What you're trying to tell the jury is, when she got out of the car in an area that you described to Sergeant Kilgore as a bad area, two blocks west of the Erotic City and just left, that was not a monumental moment for you?Q.At the time it wasn't although I also, at the time, wasn't aware exactly how bad of an area it was.A.By the time you talked to Sergeant Kilgore, you described it as a bad area; is that right?Q.Yes, yes.A.And you knew for sure it was just two blocks west of Erotic City; you made sure you told Sergeant Kilgore about that; is that correct?That was the only landmark I could place, yes.
Q.Page 1124       (Byron Case cross-examination)A.I think you told Sergeant Kilgore, when she got out of the car at that time, you just didn't consider anything about it; is that right?Q.I wouldn't say that.A.Well --Q.I'm sorry.A.Do you want me to show you your statement?Q.All right.A.Right here it says, "I mean, we didn't consider anything. She was just going to go call her parents." Is that your statement? Do you remember it now?Q.Yes.A.She gets out in this area of town. It's about what time?Q.Well, somewhere -- I would estimate around 7:30.A.And so it's dusk; is that right?Q.No. I think at this point it was pretty dark already.A.Not pitch black?Q.I don't recall specifically. I remember it was pretty dark.A.Time of the night and the location didn't cause you to consider anything about this at all?Unfortunately, no.
Q.Page 1125       (Byron Case cross-examination)A.Now, was Anastasia one of those people you cared about?Q.Yes. I mean, as I said, I was annoyed with her, but, yes, ultimately I did care about her.A.Did you do anything about her getting out of that car?Q.No, I didn't.A.But you weren't worried about it at all, were you?Q.Not at the time, no.A.You expressed no worry at all, did you?Q.No.A.What was Justin's reaction?He didn't really seem to have too much of a reaction. He was kind of sitting there looking sort of dazed. I remember we sat at the stoplight for a moment after she had gotten out of the car, and we just kind of looked at him and were wondering what was going to happen next and I didn't really know what to say and, obviously, Kelly didn't either, because she didn't say anything. But we just drove off, and he pretty much drove in silence the whole way. I don't really remember him saying anything until we got back to the condo.
Q.Page 1126       (Byron Case cross-examination)A.Did he continue to drive west on Truman Road?Q.Yes, he did.A.I'll have to check here. You drove back to the condo and drove directly there; is that correct?Q.Yes, we did.A.And it took you what? 20 to 30 minutes as a very short estimate of time to get back there?Q.Probably closer to 30, yes.A.And when you were there, you stayed there for about a half hour playing the Nintendo games; is that correct?Q.I believe Abraham paged me just -- seemed like a few minutes after I got out of the -- after we had exited the car and gone back into the condo. So, I mean, we were there -- if I was already playing video games with Justin or Kelly, it was just for a few minutes.A.Anybody think to call Anastasia's home?Q.No, not at that point.A.What you remember of the ride, you know, from that stop where she got off to the condo for awhile, we're going to have to come back to it in just a minute. Okay?Q.All right.I'm sorry. It's my misdirection. I apologize to everybody.
Page 1127       (Byron Case cross-examination)A.You say nobody thought to call Anastasia's home after the half hour ride home and the half hour at the condo; is that correct?Q.Not that I recall.A.Did any of the three of you even talk about it?Q.No. I didn't want to bring it up, and Kelly was just being quiet also. And Justin -- I don't know. He was, obviously, still upset with what happened. I don't know if he was angry or he didn't really say.A.And then that's when you get your call from Abraham?Q.Yes.A.I apologize again. I asked you to remember the drive down Truman Road after she got out to the condo. Can I ask you to just stay focused with me on that just a minute?Q.Yes.A.I think it's your testimony nobody reacted at all; is that correct?Q.Not that I remember.A.In particular, Justin didn't react to that at all?I mean, other than being visibly upset, he didn't really -- I don't know. He didn't say anything about it.
A.Do you remember, referring to page 21, telling Sergeant Kilgore that Justin said, "I'm thinking about, you know, tonight I should just kill myself"?
Q.Yeah I remember that now. I don't remember those were the exact words he used, but it was -- I'm sorry. I can't remember --
A.I'm sorry. Go ahead.
Q.I can't remember specifically what it was that he said.
A.That's a strong reaction for you to have forgotten. Don't you agree?
A.We talked about his suicide attempts and talking and things that he would do, and you told this jury you were concerned about those things, right?
Q.At some points, yes.
A.At different times in your relationship, right?
MR. LANCE:Kelly has just gotten out of the car at night --
THE COURT:Objection. Object to the question.
Page 1128       (Byron Case cross-examination)You mean Anastasia just got out of the car?
BY MR. FRY:Page 1129       (Byron Case cross-examination)
Q.A.Doggone. Anastasia has just gotten out of the car at night in a bad area, startled everybody, Justin drove off, and he said, "I think I'm just going to go kill myself." Now, why couldn't you remember that?Q.I don't know.A.You remembered that two days later when you talked to Sergeant Kilgore, right? You don't dispute that?Q.No, that's right, although to put that in perspective just a little bit, it wasn't like the second she got out of the car that he said that. It was --A.You told Sergeant Kilgore "it was while we were driving down Truman Road -- "Q.Right.A."-- he was mentioning, 'I don't know. All I'm thinking about, you know, tonight, I should just kill myself?'"And he said that I think we weren't quite halfway back to the condo at that point. That sounds about right.
Q.Page 1130       (Byron Case cross-examination)A.Okay. Now, with all of this going on, her getting out of the car, him talking about suicide again, get back to the condo, you do remember you've got Kelly's curfew; is that correct?Q.Yes, that's correct.A.All right. So you get the call from Abraham and then you kind of all three of you go over there; is that correct?Q.Yeah. We figured we still had time to go over there and make it back to Kelly's in time.A.And all three of you then leave Abraham's and you go to Kelly's house; is that correct?Q.Yes, it is.A.How much driving time is that?Q.Abraham was staying just off maybe a mile, I suppose, from 1-35 and it's approximately maybe a 20 minute drive to Kelly's at that time of night.A.So by the time you get to Kelly's house, that's when somebody finally decides, hey, maybe we better check on Anastasia, and that's the first time; is that correct?Q.Yes. Justin had made the phone call.A.When you get to Kelly's house, Kelly is a little late for her curfew, right?Q.No. Actually, I think she was early.Debbie Moffett didn't think that.
A.Page 1131       (Byron Case cross-examination)MR. LANCE:Well, I don't know if it's appropriate for me to say this --THE COURT:Objection. I object to the form of the question. I don't know that there was even a question there.BY MR. FRY:Sustained.
Q.A.Do you recall Debbie Moffett's testimony?Q.Yes.A.Debbie Moffett said that she considered Kelly late; do you recall it differently?Q.Yes. Yes, I do.A.Now, when you get there, that's why all three of you get into the house, because somebody has thought we better call Anastasia's home; is that correct?Q.No. We were all going to go in anyway and just hang out for just a few minutes.A.All right. You go in just to do some hanging out, and who is it that finally decides we better call Anastasia's house?Q.Justin called.A.And when Justin called, were you there in the room?Yes, I was.
Q.Page 1132       (Byron Case cross-examination)A.When he was having the discussion, did you become aware that he got Fran on the phone?Q.I didn't know who he was talking to, but I assumed it was her sister, yes.A.And Fran started asking Justin some questions, because he stated on the phone the conversation kept going, right?Q.Yes.A.And you heard Justin tell the story, right?Q.Yes.A.And the story was she got mad, and she got out of the car and just stormed off, right?Q.Yes.A.And Fran has figured it out that it's taken at least an hour, according to the time that Justin finally responds to her, how long she has been out there before anybody thinks to call her home; is that fair?Q.Yes.A.Fair estimate, right?Q.Yes.And you heard Fran testify the other day, and when Fran was asking Justin questions, she said she could hear your voice in the background discussing how to answer, well, what time did this happen. You don't dispute that, do you?
A.Page 1133       (Byron Case cross-examination)Q.No, I don't.A.And she said you all had a hard time figuring out what time it happened; is that correct?Q.Yes.A.And she asked, "Where did it happen?" And she heard you two discussing -- do you remember her testifying that, right?Q.Yes, I do.A.And you had a hard time telling her the location; you remember her saying that?Q.Yes.A.Did you have a hard time telling her the location?Q.I think we were having a discussion over which highway it was, but, yes.A.Now, you heard Kelly say -- and let me ask you this: Did Justin tell you Fran said, "Oh, gosh she just said, if anything happened to her, I'm responsible for it." Did Justin say that to you too?Q.I believe so, yes.A.Is that when you heard Justin say something about committing suicide if something happened to her?No. No.
Q.Page 1134       (Byron Case cross-examination)A.It was back on Truman Road that you heard him say that, right?Q.Yes.A.Now, Kelly heard it in her house; is that right? That's what she said. Do you remember that?Q.But if she said that, I'm not disputing it.A.Okay. You don't remember Justin saying anything about, "Fran just said I'm responsible for everything, and I should just go kill myself"? You don't remember that at all?Q.No.A.When you left Kelly's house, you went to Tara's house; is that correct?Q.Yes, it is.A.Tell the jury -- we never have heard -- what's the discussion between you and Justin on the way from Kelly's house to Tara's house when you know Anastasia has not called home and certainly isn't home?It was brief He had mentioned that he had talked to Francesca; that she was upset that Anastasia hadn't come home; that he was starting to get worried; and he said he didn't know what to do.
Page 1135       (Byron Case cross-examination)Q.And as I recall, I think we just kind of left it at, well, let's wait and see what happens.A.You considered it still not to be a big deal at all; is that correct?Q.I think at that point -- I think at that point it's safe to say we had become more concerned, yes.A.You two did not choose to go back to that area to see if she was still hanging around there, did you?Q.No, we didn't.A.Even though you knew she hadn't shown up, and she hadn't called in at all; is that right?Q.Yes, that's correct.A.Were you concerned then about her?Q.Like I said, yes, we were starting to get concerned, but it wasn't --A.Did you do anything about it?Q.No, we didn't.A.When you get to Tara's house, do you know about how long it takes you to get there?Just slightly longer than it would take to get to where Abraham was housesitting. It was only, I would estimate, about three miles from that location.
Q.Page 1136       (Byron Case cross-examination)A.Now, here is where you remember going in and delivering, I think you told Sergeant Kilgore, a pair of pants and a letter from Abraham to Tara; is that correct?Q.Yes.A.And you picked up a key to take from Tara back to Abraham; is that correct?Q.I don't specifically remember if we got the key or not, but I do remember we were sent there to get the key.A.Okay. But you clearly remember with Sergeant Kilgore dropping some stuff off and picking some stuff up?Q.Yes.A.Now, you heard Tara talk and testify to this jury; is that correct?Q.Yes, I did.A.She says that you were there for about 15 minutes; would you agree?Q.Yes, I would say so.A.She said that you didn't even ask to come in; would you agree?Q.Yeah. Tbat's correct.She said that you had to come out in the hall -- she had to come out in the hall; would you agree?
A.Page 1137       (Byron Case cross-examination)Q.Yes.A.You didn't ask what she was doing. That's what she said, do you agree?Q.I'm sorry.A.She said you didn't even ask what she was doing?Q.No, that's true. I probably didn't.A.You didn't want to do anything with her, do you agree?Q.I would agree with that, yes.A.You didn't say anything about what you had done all day except for going to Funcoland. Do you remember talking about that?Q.I wasn't even really standing to Tara at that point, so I didn't really say much of anything. I think it was Justin who held out his hand and said, "Look, I got a stamp," or something like that.A.Were you guys whispering out in the hallway?Q.No. I don't believe so.A.It didn't seem unusual at all to you?Q.What didn't?A.The conversation.Q.No, it didn't.Her new boyfriend, was he in the room, in the apartment?
A.Page 1138       (Byron Case cross-examination)Q.Yeah, I believe he was.A.Is that why you had her come out to talk to her?Q.I don't remember specifically, but, thinking back, I mean, if I had seen him in there, I probably wouldn't have wanted to go in. I would have felt uncomfortable being Abraham's friend.A.And then, after you left Tara's house, you just head on to your house; is that correct?Q.Yeah. Justin took me back to my mom's house.A.And when he drops you off, he just says, "See you tomorrow?"Q.Essentially.A.I know you're not quoting now, but words to that effect. No big deal, right?Q.Right.A.Had he talked about committing suicide anymore?Q.No. And his mood had improved since -- I mean, by the time we were over at Abraham's, I think maybe it was just being social that kind of brought it out of him, but he didn't seem all that upset anymore.I'm puzzled. Can I ask you a few questions about that?
Page 1139       (Byron Case cross-examination)A.He's thinking about committing suicide as he's driving down Truman Road and an hour later he finds out that the girl he's concerned about and going to commit suicide about has not shown up at her house, has not called her house, and maybe another 40 minutes later, he still doesn't know anything about it, you guys aren't even talking about it, how did he get from suicidal to it was just okay? There was no good news that whole evening about her, Anastasia, and her situation. How did he get better?Q.I don't believe he ever was suicidal.A.Why did he say that?Q.Again, I mean, I think you may have had to have known Justin to understand that, but I kind of took that as one of the things that he just said --A.But you thought it was significant enough that you told Sergeant Kilgore about it, didn't you?Q.After the fact, yes.A.After the fact. The next day, at about 9 o'clock in the morning, Justin calls you; is that correct?Q.Yes.A.And again, I guess at this time you're not concerned about his suicidal nature or what he said about suicide. You just hang up on him because you're sleeping.I didn't hang up on him.
Page 1140       (Byron Case cross-examination)Q.I told him -- he sounded fine over the telephone. He had expressed that he had had trouble sleeping and that was really the only thing weird about that, other than the fact it was so early.A.And during the day you, of course, couldn't get hold of him; is that right?Q.Right. Once I had woken up for the day, I actually ended up getting up earlier than usual, but I believe I tried to call him a couple of times, and I wasn't able to get through, so I just went ahead and made other plans.A.You have virtually told this jury what you told Sergeant Kilgore two days after they found Anastasia dead; do you understand that?Q.I'm sorry?A.You have virtually today told this jury what you told Sergeant Kilgore two days after Anastasia had been found dead, that Friday. You were out with her Wednesday; that Friday you're giving a statement. You have told this jury virtually the same thing you told Sergeant Kilgore; is that right?Q.Yes.And that's what you and your attorney want this jury to believe?
A.Page 1141       (Byron Case cross-examination)Q.That's the truth.MR. LANCE:It's hogwash, isn't it? Nobody has believed it from the first time you said it; isn't that correct?THE COURT:Objection, argumentative.BY MR. FRY:Sustained.
Q.A.Your suggestion is that Anastasia gets out of the car in a bad area and walked right past a gas station with a pay phone; isn't that right? Wouldn't that be a logical conclusion from what you're saying?Q.I don't know what happened when she got out of the car, but, obviously, she -- yes. She didn't use the pay phones, apparently.A.She either walked up nearly a half a mile into Lincoln Cemetery, which was pitch black, or some complete random stranger took her up there; is that what you would suggest to this jury?Q.I don't know what to suggest.A.This young lady that you described as quite a fighter, very determined and very stubborn girl, characterizations of her; is that correct?I believe so.
Q.Page 1142       (Byron Case cross-examination)A.She winds up dead, and she doesn't have a defensive wound on her body, does she?Q.Apparently not.A.It's not apparent. You heard the Medical Examiner. There were no defensive wounds. It's true she did not have a defensive wound on her body, did she?Q.No.A.And her clothes were not ripped, torn, scraped, in any way; you heard that testimony as well?Q.Yes.A.And she wasn't sexually assaulted at all; you heard that testimony too?Q.Yes, I did.A.And your suggestion is she just gets up there in Lincoln Cemetery some way without a fight and this just happens to her? The truth is, Sir, she went up into that cemetery with three friends, isn't it?Q.No.A.And she got out with her boyfriend, and you got out. And you got the shotgun that he bought the month before, and you pointed it at her face, and you shot her, didn't you?No, Sir, that's not.
Q.Page 1143       (Byron Case cross-examination)A.You thought this story would work back then in 1997, didn't you?Q.I'm sorry?A.You thought your explanation of innocence would work back in 1997, didn't you?Q.I never made any assumptions. I just -- I told the police what I knew.A.At the time you gave that statement, you know you took Kelly, and you took Kelly to say the same statement that you had practiced the night before, didn't you?Q.No.A.Kelly went with you, didn't she, to give the statement?Q.Yes, she did.A.You were both there at the same time, right?Q.Yes.A.And that evening you come up with an agreement on what you were going to explain your contact with Anastasia the night before was?Q.No.A.You just remarkably told Sergeant Kilgore almost the identical story; is that correct?We told him the truth.
Q.Page 1144       (Byron Case redirect)A.And you thought that Kelly was going to be with you for the rest of your life at that time, didn't you?Q.No.A.And you thought you could control Kelly for a long long time, maybe the rest of your lives, so that the story from Kelly wouldn't come out, didn't you?Q.No.A.Once Kelly started getting on drugs, started going to all the psychiatrists, all the counselors, it even occurred to you that she might not even survive to tell the truth, didn't it?Q.I never assumed Kelly was suicidal.A.Mr. Case, you don't have the courage to tell this jury that you will accept responsibility for killing Anastasia, do you?Q.I don't feel that's a fair question, sir.A.What Justin did was not courageous, was it? Committing suicide was not an act of courage in your mind, was it?Q.No.A.But it was his way of accepting responsibility, wasn't it?No.
Q.Page 1145       (Byron Case redirect)A.And you will not accept that responsibility in this courtroom, will you?MR. FRY:If you're asking me again if I'm guilty, no.THE COURT:May I have a moment, Your Honor?MR. FRY:You may.THE COURT:Your Honor, I have no further questions.MR. LANCE:Mr. Lance, do you wish reinquiry of Mr. Case?THE COURT:Yes, I' II try to be brief.REDIRECT EXAMINATION BY MR. LANCE:Go ahead.
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Q.A.Mr. Case, I want to go back in time to when the prosecutor first started asking you questions. Okay? Think back.Do you remember a question about Kelly Moffett told you that she had an alcoholic, child-beating father. Do you remember that topic being brought up by the prosecutor?Q.Yes.A.Now, all that turned out to not be true, right?Q.That's correct.That was just another story Kelly told?
A.Page 1146       (Byron Case redirect)Q.Yes.A.Is that fair?Q.Yes.A.All right. Another topic the prosecutor asked you was in October, right after this, you were interviewed by Sergeant Kilgore, correct?Q.Yes.A.And you told Kilgore that, when Anastasia got out of the car, quote, "We didn't think anything about it. She is just going to go call her parents." End quote. Did you say all that to Sergeant Kilgore?Q.I believe so, yes.A.And when you said all that, she is just going to go call her parents, when you said all that, were you aware at that time that no one was home at her house at the time she leaped out of the car?Q.No. I assumed somebody was.A.Well, now you have heard the trial testimony, right?Q.Yes.You have heard now that her mother was not at home; she was at a different house working and that her dad had been working late. You heard all that, right?
A.Page 1147        (discussion in State v. Case)Q.Yes.A.Sister went to a church meeting. So vou know now that no one was at home at that time frame, right?Q.Yes.A.But did you know that when you told Kilgore "We didn't react. We just thought she was just going to go call her parents?"Q.No, we didn't.A.You weren't aware of it, were you?MR. LANCE:No, I wasn't.MR. FRY:Your Honor, I believe that's all I have.THE COURT:No recross.All right. You may step down, Mr. Case.THE COURT:(The witness was excused.)THE COURT:Let me see the lawyers very briefly.
(Counsel approached the bench and the following proceedings were had:)MR. LANCE:I don't think we can finish tonight. Is that okay?Yes, that's fine.
(The proceedings returned to open court.)
THE COURT:Page 1148        (discussion in State v. Case)MR. LANCE:Ladies and gentlemen, I think it's probably impractical to attempt to get you the case tonight. If we were to do that, to be honest with you, it would probably take us 10 or 15 minutes to get the instructions together. Nancy needs a break. So you wouldn't even get the case until after 6 o'clock, and that's if we really worked at it hard. Okay?
So here is what I think would be the best thing. Let's start a little earlier tomorrow. Let's try to be in court with closing arguments tomorrow at 8:45. We'll stay late tonight and get the instructions together so, with a little bit of luck, we'll start at 8:45 tomorrow.
So why don't you be in the jury room shortly after 8:30 tomorrow with the fervent hope that we can begin the closing arguments at that point in time.
Can I see the lawyers? One more quick thing.I forgot to say on the record, the defense rests.
THE COURT:Page 1149        (discussion in State v. Case)THE COURT:All right. Come on up.
(Counsel approached the bench and the following proceedings were had:)MR. FRY:I'm assuming no rebuttal, right?THE COURT:No.THE COURT:All right.
(The proceedings returned to open court.)so with that being said, I think we'll recess for the evening. Debra is here early. She'll make sure there is coffee and doughnuts. We'll try to get this thing started as close to 8:45 as possible so you all can begin your deliberations by midmorning tomorrow.
The Court again reminds you of what you were told at the first recess of the Court. Until you retire to consider your verdict, you must not discuss this case among yourselves or with others or permit anyone to discuss it in your hearing. You should not form or express any opinion about the case until it is finally given to you to decide.
Page 1150        (discussion in State v. Case)THE COURT:Do not read, view, or listen to any newspaper, radio, or television report of the trial.
With that being said, we'll be in recess until approximately 8:45 tomorrow morning. All rise, please. Jury is free to go.
(The following proceedings were had in the courtroom out of the presence and hearing of the jury:)MR. LANCE:we'll do that first. All right. Let's go on the record.
The Defendant, first of all, has rested, and the State has indicated that there is no additional evidence. The Defendant submits a motion for judgment of acquittal at the close of all the evidence.
Do you desire any argument, Mr. Lance?THE COURT:No, Your Honor. We're going to stand on the written motion.MS. CRAYON:Does State wish to make any record at this time other than it's opposing the motion?No. We oppose it.
THE COURT:Page 1151        (discussion in State v. Case)The Court has reviewed the motion and believes under the Jackson vs. Virginia standard, which dictates that the State should be given all reasonable inferences in their favor, that under such a submissibility standard, that a reasonable juror could, in fact find the Defendant guilty beyond a reasonable doubt, so the case is one to be decided for the jury, obviously, with a different burden of proof. So the motion will be shown filed, submitted and overruled.
All right. We have I have had the chance to informally go over instructions with Mr. Case being present and with counsel, and the record should reflect that Mr. Case was present not only in the informal instruction conference, but when we just did the motion for judgment of acquittal, Mr. Case was present, obviously.
I would like to now discuss the instruction packet that I intend to give. Any discussions we had off the record informally putting this packet together, you're welcome to reassert those objections and make any other record that you desire.
Page 1152        (discussion in State v. Case)MR. LANCE:I would request, as we go through the instructions in their numerical order, that you lodge your objections at that point in time and I'll ask if there is any additional record.
Obviously, Mr. Lance, I realize your motions for judgment of acquittal are deemed reasserted, and I assume that you're objecting to verdict directors on the basis of sufficiency grounds that were raised in your motion?THE COURT:Yes, Sir.With that being said, instruction number 1 -- by the way, for the purposes of this record, all of these are MAI CR3d. So when I give a cite, if I don't say that, it's a CR3d cite.
Instruction number l begins, "It's the Court's duty..." It has formerly been read to the jury. Will not be reread. Will be part of the packet MAI CR3d 300.04. I screwed that up.
Instruction number 1 begins, "Those who participate..." It is MAI CR3d 302.01. It will not be reread, but has been read to the jury. I was playing with the introductory instructions, I apologize.
Page 1153        (discussion in State v. Case)Instruction number 2 begins, "You must not assume..." It is 302.02. Previously been given. Will be part of the packet. Will not be reread.
Instruction number 3 begins, "The law applicable..." 302.03. And that will be instruction number 3 and will be the first one read to the jury.
Instruction number 4 is the burden of proof. It begins, "The charge of any offense..." It is instruction number 4, 302.04.
Instruction number 5 is a verdict directing instruction for murder in the first degree. It is 313.02 and 304.08.
Instruction number 6 is a lesser included submission referencing the charge of murder in the second degree. It is MAI CR3d 313.04 and 304.08.
Instruction number 7 is the Count 2 verdict director for ACA as relates to murder 1. The fill-in is instruction number 5. It is 332.02 and 304.08.
Page 1154        (discussion in State v. Case)MR. LANCE:Instruction number 8 is a verdict directing instruction for AcA, armed criminal action, for the lesser included offense of murder in the second degree. The fill-in is 6. The citations are the same.THE COURT:Judge, I just saw a typo in mine. I don't know if it's in everybody's copy-MR. LANCE:On Count 2?THE COURT:Oh, no. That Is right. I'm tired. It's okay.All right. So instruction number 8 is the verdict director for Count 2 with a fill-in forinstruction number 6.
Instruction number 9 is 302.05 that begins, "When you retire..."
And instruction number IO is, "The attorneys will now have the opportunity of arguing the case..." 302.06.
Next is all the verdict forms of 304 I take that back. There is a guilty for Count 1, murder 1, fill-in 5, 304.44.
There is a guilty for murder 2, which is a lesser, which is 304.50. The fill-in is Count 6. There is then a not guilty for Count 1. That's 304.40.
Page 1155        (discussion in State v. Case)MS. CRAYON:Next is the verdict form rendering a guilty verdict for ACA, murder 1. Fill-ins are instructions 7, 5 and 7, 304.44.
Next is a Count 2 verdict form for guilty under the murder 2 submission, ACA murder 2 submission. That's instruction number 8. Number 6 and number 8 are fill-ins, 304.48.
Lastly, we have 304.44, which is not guilty under Count 2.
Any additional record either side wishes to make relative to any issue touching upon the instructions?MR. LANCE:None by State, Your Honor.Your Honor, from the defense, although I don't have what I would call a specific objection, defense wants to make a standard objection to all of the State's entire packet of proffered instructions on the basis we feel for motion for judgment of acquittal at the close of the evidence should have been sustained; therefore, it would violate my client's rights to due process protected under the Missouri Constitution, the United States Constitution, to proceed and offer all of the State's instructions at this point.
THE COURT:Page 1156        (discussion in State v. Case)MR. LANCE:All right. We'll show that objection is noted and it is considered by the Court and overruled.
Any additional record you wish to make on instructions?THE COURT:No, Your Honor.MR. LANCE:Okay. My understanding is you all would like 40 minutes?MS. CRAYON:Thirty-five?THE COURT:We'll talk about it tonight.MS. CRAYON:Okay.MR. FRY:Yes.THE COURT:We would like 40.MS. CRAYON:All right. Do you want to split it up now or first thing in the morning once you have rehearsed it and gone through it?THE COURT:AS far as amount of time, I don't know, but I know I'm doing first half and Dave is doing second.Let's assume we got 40 and, if you want 35, we can readjust it. Is there anything else?
MR. FRY:Page 1157        (discussion in State v. Case)THE COURT:what about the tapes?MR. LANCE:Yeah. Let me see that. Is that the case there? The issue has arisen -- do you want to do this now, Mr. Lance?THE COURT:That's fine.MS. CRAYON:The issue has arisen that there are two -- as the lawyers and I'm sure Mr. Case is aware, there are two consensual tape recordings that have been made, consensual being a term of art meaning that Ms. Moffett consented to it.
There were a variety of objections made 3 to their admission into evidence by Mr. Lance, which I deem reasserted and are continuing.
If the issue should come about is that there is some possibility that I will not be the judge that will receive the verdict, and so the issue needs to be broached as to, if the jury asks to listen to the tapes, how we 1 should approach that situation.
And I believe it's the State's desire to allow those tapes to be replayed if they're asked for; is that correct?Yes, Your Honor.
THE COURT:Page 1158        (discussion in State v. Case)MR. LANCE:Mr. Lance, do you object to that procedure?THE COURT:Yes. We renew not only our pretrial motion objecting to submission of the audiotapes, but I would renew that for the record and all the grounds we mentioned, but I would also object that I think it's giving undue weight to a testimonial exhibit allowing the jury to view it right in the middle of deliberation.
In other words, I don't view it -- I know it's in evidence now, but there is a difference between, say, again as an exhibit versus something testimonial. I just feel it's improper to give them something testimonial such as these tapes as opposed to looking at a picture or an exhibit. I feel it's improper, and we object.Okay. First of all, the ultimate decision as to what's done with them will be the judge that rules on them at the time; however, I'm preliminarily suggesting that, if a proper request is made, I think the jury has a right to listen to this evidence, because it's an exhibit as opposed to testimony.
Page 1159        (discussion in State v. Case)The practice that I would utilize and which I have indicated to the lawyers that there is three judges in the building if I'm not here. The likely judge who will handle it will be Judge Gray, and his view of the law and procedure is similar to me.
It would be this. If the proper request was made, I would intend to allow the jury to relisten to the tapes. The way I would do it would be as follows:
First of all, we would bring the jury down. We would lock the door to the courtroom so it is considered part of the deliberation. I would allow the Defendant to be present and counsel to be present. We would then replay the tapes in the exact same manner they were played during the trial, with the transcript and instruction, and then we would then take from the jury the tapes and the instructions and send them back to deliberate.
In other words, I'm not going to let the jury sit up there in the jury room with the tapes and the transcripts and listen to them at their heart's content.
Page 1160        (discussion in State v. Case)If they want to listen to them, they will get to do it in the fashion I suggested, and it would be my strong inclination -- I can't perceive this happening differently, but the jury will get about one bite.
In other words, if they ask and the proper request is made, I would be inclined to let them listen to it one additional time under the procedure I have described. Okay? Anything further?
And I will put on the record, I believe there is cases where it suggests, if the evidence is, in essence, the equivalent of testimony, this procedure,would run afoul of, in essence, bolstering or enhancing evidence or testimony.
But I think since this is an exhibit, I believe I can do this, and I think the case that the State gave me which I have relied on before, State vs. Eddie Lee Evans, 639 S.W.2d 792, 1 believe that takes it out of the realm of the classic example would be preservation depositions. You couldn't replay a preservation deposition. That would be replaying testimony.
MR. FRY:I would be inclined to rule the same in a child sexual abuse case, where the videotape was considered testimony, or certainly it was the sole testimony. In this particular case, I think it would be appropriate, so it's my inclination to allow it.
Obviously, it depends on the context of how the request is made, how you respond to the question, all those kinds of things will be up to myself or the judge who gets the question, but preliminarily that's the posture I would likely take should that request be made. Okay? Anything else?MR. LANCE:Not from the State.THE COURT:Nothing from defense.All right. We'll see you all tomorrow between 8:30 and a quarter of.
(Court was adjourned until May 2, 2002.)